Hubner v. Reickhoff

Granger, J. I. It became necessary for the plaintiff, in order to show a valid marriage contract with William Reickhoff, to establish a divorce from Heindrick Keisel, to whom she had been married. She — 369 — had left Mm in Germany, and she presented to- the court a certified copy of a decree from the district court of Nebraska in and for Douglas county, showing' a divorce of Amanda M. Keisel from Heindrick Keisel, on the second day of September, 18,88. The decree shows that jurisdiction was obtained 'by a service of notice by publication. In support of objections to the decree, as evidence, the defendant presented the record, from Which proof of service must be found. The notice was •addressed to Heindrick Keesel signed by “Amanda M. Keesel, by J. E. Smith, Attorney.” The notice, as shown of record, required the defendant to appear and answer on or before December 26, 1888. It is- argued •by appellant as if it was 1887; and, as appellee makes no question as to the fact, we will consider 1887 as the proper date. It appears that the decree was entered, on default of the defendant, on the second- day of N ovem-ber, 1888. The affidavit for publication was filed November 1, 1887, and that of publication October 13, 1888, showing the publication to have'been from November 12 to December 3, 1887. The cause seems to have been continued from the return day, December 26,1887, to November, 1888, before default or judgment was entered. The court instructed the jury that the decree as offered was prima facie evidence of a divorce, and the decree was admitted in evidence against numerous objections as -to its competency. The question of fact, as to the residence of plaintiff in Nebraska for such time as to- give jurisdiction, the court submitted to the jury, with the instruction .as to the prima facie effect of the decree. Among the objections urged then and- now to the decree is the variance in- name between that of plaintiff’s husband, “Keisel,” and that in the notice, “Keesel.” It is urged that the variance is fatal to the decree. The following rule is invoked by appellee, found — 370 — in 16 Am. & Eng. Enc. Law, 122: “The absence of a definite set of rules for the spelling and pronunciation of the names of persons, and more especially of surnames, has led the court to the adoption of a principle known as the rule of idem sonans. This rule may be .stated to be that absolute accuracy in spelling names is not required in legal documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name as thus given is a sufficient designation of the individual referred to, and no advantage can be taken of the clerical error.” The author has collected a very extended list of names to which the rule has been applied, and another to which it is 'held not applicable. In some cases it has been held that the question of whether the rule is applicable is one of fact for the jury, and in others that the issue presents- a question for the court. We have examined many, but not all, of the cases cited by the author, and from them no very definite rule can be gathered. Many of the cases are criminal, and the question is one of identity of the person charged with the person on trial, and many others present the question of the identity of the person in court, sought to be charged with an obligation or duty, with the one named in an instrument or document. It is, in such cases, a question whether the person against whom the adjudication is sought is the one represented by the name in the instrument. The reasonableness of the rule in such cases is apparent. An. examination of the cases- will show that the variance in orthography in names, has been held fatal or otherwise, as the facts of the case would warrant, having in view safety in' the application of the rule, and just results. — 371 — This ease is unlike any that we 'have seen. It is conceded. that the name “Keisel” is pronounced by giving to the diphthong the long sound of “i.” If that pronunciation is to obtain for the purpose of the case, the rule of idem sonans could not be made to apply; and, so far as can be known, it is a fact that it was so pronounced. But, if the sound of long “e” should be permitted, ought the rule to obtain in this case? The test suggests this query: Where a service is by publication, which is made conclusive because of a presumption that it comes to the notice of the person, can the court assume as a matter of law that the name “Keesel” would or should be understood as “Keisel?” Can it be said to be a rule of law that one of the latter name, on seeing the former name in a notice, must or should understand it to mean him? Let it be 'conceded that, if he were in court, the identity of the person as the one intended might be shown; but can it be assumed as a legal conclusion that “Keesel” should 'be understood as “Keisel?” It is hardly to be doubted that, while “Reed” could be held to apply to “Read” or “Reade,” with the person in court, and an issue of identity made, a court would not assume, in a publication service, that it meant, or should be understood to mean, either of the others. The danger of such a holding is apparent, because of the fact that all three words are names of persons pronounced alike, but of different orthography. Under some conditions either name might be held to applv to either of the persons, but not in a case where a name, not his own, is published in a notice, to which he has not responded, and the failure to respond is to be taken as a confession of the truth of charges, as the record recites in the divorce proceeding. The corrupt practices in divorce ■ proceedings could hardly be aided by the courts better than to open the door for a variance between the actual name of the defendant in the record and that in the notice constituting the service, and giving the court — 372 — jurisdiction. It would seem as if the dissolution of the marriage relation should depend on greater accuracy of procedure than a variance involving such dou'bt and uncertainty. The divorce case, on the face of the record, is strange in the respect of the defendant’s name, if not somewhat suspicious. The plaintiff was a person of the same name, and, of course, knew it well. In the proceedings the name appears as “Ke'isel” and “Kiesel,” which is a mere reversal of the letters of the diphthong; but nowhere, except in the notice, does the name appear as “Keesel,” which is enough of a departure to indicate another name. As we undei\stand the record, the published name is neither spelled nor pronounced like that of the defendant in the divorce proceeding. But if pronounced the same, and 'if under some circumstances, such as we have suggested, the variance in spelling might be held immaterial, we do not think the rule can be made to apply in this case, where the defendant was not in court, and there could have been no issue or facts from which he should be held to answer to a name not his own, or be adjudged in default. The decree in evidence and the instructions of the court were conclusive on the question, and the effect was to hold, as a matter of law, that the person named in the notice was the husband of the plaintiff, and we do not think the conclusion was warranted. We think, with this affirmative showing, the decree should have been denied as evidence, on the ground that the person served did not appear to be the person named in the proceeding. This question being jurisdictional, it cannot well be claimed that the decree in the divorce proceeding is conclusive against collateral attack. If the substituted service was not, as a legal conclusion, on Heindrick Keisel, there was an entire want of jurisdiction, and the decree is absolutely void, and may be attacked in — 373 — any proceeding in which it is sought to 'be made effective. 1 Black, Judgments, section 170; Jordan v. Brown; 71 Iowa, 421. It is not a case of a defective service of notice, but one of no notice on Heindrick Keisel. In such a case a foreign judgment is void, notwithstanding the recitals of a service. Stone v. Skerry, 81 Iowa 582. An entire want of notice is not a defective notice. Haws v. Clark, 37 Iowa, 355. We are better satisfied with our conclusion because of the fact that the record is not an affirmative showing of good faith in the divorce proceeding in Nebraska. The court submitted to the jury the question of a timely residence of plaintiff in Nebraska, so as to give jurisdiction to that court; and the jury found there was such residence, but upon evidence of very doubtful sufficiency. Conceding it to be of such a nature as to sustain the finding, its doubtful character, in connection with the mode of service, which we hold to be insufficient, malees it a case with no equitable features to make the -application of the rule as to service annear harsh or in any way unjust. Because of the conclusiveness of the question we have considered, it is not important that we consider others. The judgment is reversed. Kinne, C. J., took no part.