84 Wis. 402 | Wis. | 1893
It appears that before the expiration of the time for giving security for costs as ordered by the county judge, the appellant’s counsel moved the circuit court to set aside and vacate the order, and argued' the same at length. The plaintiff’s attorney, without argument, thereupon in open court temporarily waived the matter of security, and moved to dismiss the appeal on the ground of variance between the judgment in the justice’s court and the notice and affidavit of appeal therefrom; and the appeal was dismissed on that ground. The question presented is whether such dismissal was proper or improper. The mere fact that the plaintiff’s surname in the notice of appeal is spelled “Noel ” instead of “Noall,” as in the summons, complaint, and other papers in the case, we regard as an immaterial variance. The pronunciation is substantially identical, and that is sufficient. State v. Lincoln, 17 Wis. 579; Colburn v. Bancroft, 23 Pick. 57; Comm. v. Stone, 103 Mass. 421; State v. Witt, 34 Kan. 488. For numerous cases illustrating the rule as to idem sonans, see 24 Alb. Law J. 444. For the same reason, the mere fact that the
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.