Bergman's Appeal

Jan 6, 1879
Versions:
Mr. Justice Mercur

delivered the opinion of the court, January 6th 1879.

This is a distribution of the fund raised by a sheriff’s sale of real estate. The lien of the appellant was prior in time to all other liens, but was disallowed by the auditor and by the court below, by reason of alleged error in spelling the name of the defendant in the judgment. The lien of the appellant wras entered on a judgment-note, signed in German characters, Heinrich Hackman. When it was filed of record, the prothonotary was directed to spell the name Henry Hackman; but in fact he wrote it on the record Henry Heckman. It appears from the evidence and the finding of the auditor that the full name of the maker of the note was John Henry Hackman ; yet he testified that he always omitted the John in writing his name, except on one occasion, and that he pronounces his name, in English, Henry Hackman. His wife testified she was the wife of Henry Heckman; that she never knew any other Christian name for him than Henry; that everybody knew him as Hockman, in German, and Heckman, in English. Their son testified that his father’s name was Henry Hackman, but that it was generally pronounced, in the neighborhood, as though the a in the first syllable *123was e instead of a. Hack, in Herman, he would pronounce Heck, in English. Another witness thought it was Hackman, but pronounced Hawkman. Still another heard it called Hartman, in English. Looking at the origin of the names it appears that Hackman means a chopman, a man who chops; and that Heckman means a brushman or hedgeman, and that the two are pronounced differently in the Herman language. We cannot, however, consent that a difference of meaning in the signification of names in their original language, shall control the question now presented. In a search for liens, the appearance of the name to the eye, and its sound to the ear, are more important. The initial letter of the' name being undoubted, allowance must be made for slight differences in the spelling. When, as here, the two names are Hackman and Heckman, the difference is so little, it should put one interested on inquiry. That inquiry thereupon became a duty. Slight investigation would have disclosed the fact to the appellees that Hackman and Heckman were one and the same person, and that the appellant had a prior lien.

This case appears to have been decided by the auditor on the authority of Heil and Lauer’s Appeal, 4 Wright 453. The correctness of that case on its facts, we do not question; but we see no reason for holding that it leads to the conclusion at which the auditor arrived. It was there held, the fact the name was spelled Jbest, in Herman, and Yoest, in English, was insufficient to establish the identity of the names as against a lien-creditor. It was therefore said that in searching for a name, the initial letter of which was Y., a purchaser or encumbrancer should not be required to examine the index through the letter J. Where, however, both names have the same initial letter a different rule applies. The eye is naturally directed to names otherwise slightly different. Thus where the correct name was Bopp, and on the judgment-docket was written Bupp, substituting u for o, the lien was held good as against one claiming under Bopp: Myer v. Fegaly, 3 Wright 429. It is true some weight was given to the fact that, according to the Herman pronunciation, the sound of both names was identical. In Heil and Lauer’s Appeal, supra, it was held that idem sonans does not apply to judgments entered in different initials from the usual and ordinary form in which the name was spelled in the English language. The Act of Assembly requiring judgment-dockets and indexes to be kept, provides for notice rather to the ‘eye than to the ear, although it may not wholly exclude the latter. We cannot discover any greater variance, either to the eye or to the ear, between Hackman and Heckman, than between Bopp and Bupp. In each case the departure consists in the substitution of one vowel for another, in the second letter of the name.

Decree reversed, and record remanded with instructions to decree distribution conformably with this opinion.