Jenny v. Zehnder

Mr. Justice Gordon delivered the opinion of the court, November 20th 1882. So far as we can gather from the scanty records before us, the judgment in controversy, the one on which the sheriff’s sale [298] was made, and under which the plaintiffs claim, was entered against “ Fr. Zehnter.” It would seem also, that the note on which the judgment was founded was signed “Fr. Zehnder.” As there was no material difference in the name as found in the note and judgment, and as it appears on the index, it is clear that the plaintiff was in no default in not seeing that his judgment was properly docketed. The use of the letter “t” for “d” in the surname, was but the substitution of that which would, in English, have the same sound as the German “d,” and this, as Was held in Meyer v. Fegaly, 3 Wr. 429, was not a fatal error. Neither was the omission of the small “r” from “Fr.” of any serious moment, since both are contractions for the name “Frederick,” and if such contraction is allowable at all, the one, for the purposes of notice, was just as good as the other. But it has been held that the signing of “ A ” for the Christian name “ Abel,” is good, or if the name used is that by which the debtor is commonly known, it is all that is required by the Act prescribing judgment dockets: Jones’s Est., 3 Ca. 336. It does not follow that a man must adopt the name given to him in his infancy by his parents. He may reject part, or, for that matter, the whole of it, and assume some other. The real question is, by what name is he generally known? In the case in hand, as we have said, the plaintiff was in no default; he could do nothing else than what he did; as the note was signed so it was carried on to the judgment docket, and nothing more than this could be done. In these particulars the circumstances are essentially different from those in the cases of Wood v. Reynolds, 7 W. & S. 406, and Hutchinson’s Ap., 11 Nor. 186. In the first of these an initial letter, in the name of the defendant, by which he was principally distinguished from two other persons of the same name, was omitted in the transcription from the continuance docket to the judgment index, and in the second, in a like transcription, the middle letter of the name was changed from “A” to “G,” thus altogether destroying the defendant’s identity. But if, in the case before us, there was any default at all, it was the default of the defendant in having failed to sign the note with that name by which he was commonly known. Whether this was so or not was a question for the jury. There is testimony showing that he was known among his neighbors by the name of “ Fred. Zehnder;” he so states the fact himself, and the further proof is that he frequently signed papers as “Frederick Zehnder.” Under these circumstances the court below ought not to have taken the case from the jury. Judgment reversed and a new venire ordered.