Schoonhoven v. Gott

Walker, J. This was an action of assumpsit brought in •the Kane Circuit Court. The summons was against Nicholas Sehoonhoven, and the return shows service by that name. The precipe, the bond for costs and the declaration, were all entitled against Nicholas Schoonover. At the February term, 1857, tbe defendant entered his motion to dismiss the suit for a variance between the summons and declaration, which was overruled, and the court rendered judgment against defendant and assessed the plaintiff’s damages. And to reverse that judgment, the defendant brings the case here by appeal, and assigns for error the overruling the motion to dismiss, and the rendition of the judgment by the court below. The question presented by the record in this case for our consideration, is, whether there was a variance between the names in the summons and declaration. It is a general rule in pleading, that the declaration should pursue the writ in regard both to the Christian and surnames of the parties, and where there is such a difference as not to be the same in sound, the variance might be plead in abatement, but the misspelling is not, however, material if the two names are the same in sound. 1 Chit. Pl. 245. In the application of this rule, it was held in the case of The King v. Shakespeare, that the names Shakepear and Shakespeare were not the same, and a plea in abatement for the variance was held good on demurrer; 10 East R. 88. In 4 Bac. Abr., letter A, title Misnomer, 752, it is said that Rudulphus and Rodalphus are not the same names, there being a material variance in the sound. It was held by the Supreme Court of Arkansas, 2 Spear 46, that Willison and Willitson are not the same. And the rule that the names must be the same in sound is recognized by all of the English and American courts. Then when we test the present case by this rule, it is obvious that the variance is clear and distinct, the only similarity being in the first syllable, the latter portion of the names being different both in the sound and in the orthography. The variance is certainly as marked as in either of the above cases. If the proper name was used in the summons, then the plaintiff could have amended his declaration on leave of the court, so as to obviate the variance ; and if the correct name was used in the declaration, the defendant had a right to plead the variance in abatement of the writ, or move to quash, and the plaintiff could not avoid it unless by replication and proof that defendant was as well known by the one name as the other. The mere entry of a motion to quash the writ or dismiss the suit, is not such an appearance as waives a variance between the writ and declaration, and the variance in this case was not cured by the motion of the defendant. The court is of opinion that the variance in this case was material, and that the judgment should be reversed and the cause remanded. Judgment reversed.