180 So. 731 | Ala. | 1938
The Court of Appeals in holding the name Levon and Lavaughn are not, as a matter of law, idem sonans, was endeavoring to follow the rule of our cases by which that court is bound, and the analogies furnished by our own authorities. Particular stress is laid upon Munkers v. State,
In Patterson v. First National Bank,
"Where the orthography of two names is different, and they do not sound the same, when fairly pronounced, the doctrine is clearly inapplicable. * * * Although the question of idem sonans is essentially a question of fact, if it arises on demurrer, and the names are necessarily pronounced substantially alike, the court will take judicial notice of the fact, and hold as a matter of law that the two names are the same." 45 Corpus Juris 387 and 389.
That part of the opinion of the court in Munkers v. State, supra, quoted by the Court of Appeals, states no different rule, and also discloses a regard to the holding in our other cases by way of analogy.
Perhaps it may as well be confessed that, in our opinion, the rule as to idem sonans was stressed to an extreme in some of our decided cases, among them that of Munkers v. State, supra.
We think it clear, however, that the Court of Appeals is well sustained by our authorities, notably those herein cited. But, feeling as we do that some of them doubtless gave too narrow an interpretation to sound and orthography, yet we do not feel justified in now overruling them, and rest content with these observations for future consideration.
As stated in 45 Corpus Juris, supra, the question of idem sonans is essentially one of fact, and it takes a very fair case to give it application as a matter of law.
We are not persuaded the opinion of the Court of Appeals in the instant case should be here overturned, and the writ will accordingly be here denied.
Writ denied.
All the Justices concur. *22