50 Kan. 420 | Kan. | 1893
Opinion by
This was an action in replevin, brought in the district court of Cloud county by the Milton-vale State Bank against P. Kuhnle, to recover eight cows and four calves, of the aggregate value of $200. The plaintiff claimed the property under a chattel mortgage made by Samuel M. Johnston to it-on the 7th day of September, 1887, to secure the payment of $925, and filed for record the next day in the office of the register of deeds of Ottawa county, where the mortgagor resided and the property was then kept. The mortgage was kept alive by a renewal affidavit filed' in the office of the register of deeds on the 22d day of August, 1888. The defendant claimed the same property under mortgages executed by the same mortgagor to him as follows: To se
It is insisted that Johnston and Johnson are not even idem .sonans. The rule has been stated —
“That absolute accuracy in spelling names is not required in documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the*423 correct spelling thereof, conveys to the ear when pronounced according to commonly accepted methods a sound practically identical with the sound of 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.” (16 Am. & Eng. Encyc. of Law, 122.)
In the pronunciation of proper names greater latitude is indulged in than in any other class of words. (Rooks v. The State, 83 Ala. 79.) Courts will not enforce the exact rule of lexicographers in the spelling and pronunciation of words. Indeed, it is difficult to determine when names are of the same sound, and it would take a practiced ear to detect the difference in the sound of Johnston and Johnson, as ordinarily pronounced by the generality of mankind. As previously held by this court in the case of Howard v. National Bank, 44 Kas. 549, and Farmers’ Bank v. Bank of Glen Elder, 46 id. 376, a subsequent mortgage with notice of a prior mortgage is not a subsequent mortgage in good faith, under ¶ 3905 of the General Statutes of 1889. Upon the authority of the above cases, the trial court was correct in the judgment rendered.
The last point urged is, that there was no evidence before the court to sustain the findings in favor of the defendant for the five cows, under the mortgage of April 15, 1887. It seemed to have been conceded that the five cows adjudged to be the defendant’s were in all of the chattel mortgages. The court so found, and we think there is some evidence to support the finding in the record.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.