Wiehle v. Schwarz — 54 N.Y. Super. Ct. 169

Majority

p. 169

C. A. MAX WIEHLE, Appellant, v. ANTON SCHWARZ, Respondent.

Headnote

Parties—Use of initial letter of Christian name.

Plaintiff recovered judgment, by default of appearance, in a court of general common law jurisdiction in Pennsylvania, against “ A Schwartz,” the record therein not showing that the letter “A” was used as an abbreviation or that defendant’s name was unknown. In an action in this state upon said judgment, brought against “Anton Schwartz,” the complaint not alleging that the defendant here was known by the name of A. Schwartz, or that he was the person who signed the notes upon which the judgment in the Pennsylvania suit was founded, and there being no evidence of the law of that state on the subject,

Held, that the common law applied, and that the complaint was properly dismissed.

Before Sedgwick, Ch. J., and Freedman, J.

Decided December 30, 1886.

Appeal from a judgment dismissing the complaint, entered upon findings made upon a trial by the court without a jury.

Action upon, a judgment.

The facts appear in the following opinion delivered by the court below:

“ Ingraham, J.—The plaintiff in this action recovered

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in the court of common pleas, in the city of Philadelphia, a court of general common law jurisdiction, a judgment against A. Schwarz for the sum of $2,677.52. It does not appear by the record of that case tha,t the letter “A,” by which the defendant was designated, was used as an abbreviation for the defendant, or that the defendant’s name was unknown.

“ The action was upon two promissory notes signed A Schwarz, and was against A. Schwarz. The process in that action was served upon the defendant in this action, and judgment was entered by reason of his failure to appear and file the necessary affidavit of defense.

“ The defendant in this action, Anton Schwarz, is sued on that judgment. It is not alleged in the complaint in filiis action that the defendant, Anton Schwarz, was known by the name of A. Schwarz, or that he was the person who signed the promissory notes upon which the action in the court of common pleas for the county of Philadelphia was founded.

“ On this record, as it stands, I do not think plaintiff is entitled to recover against Anton Schwarz on the judgment. There is no evidence as to the law of the state of Pennsylvania on the question here presented, and the rules of common law are therefore presumed to apply. It is well settled in this state that an action against an individual by a wrong name does not give the court jurisdiction to enter any judgment against the person intended to be sued.

“In Farnham v. Hildreth ( 32 Barb. 278 ), it was held a judgment entered against Freeman Hildreth did not authorize a sale of the property of Truman Hildreth, although he might have been the individual intended, and also held that the service of a summons upon a party by a wrong name does not give the court jurisdiction over his person, and his appearance cannot be compelled.

“ Anton Schwarz did not appear in the action in the court of common pleas of the county of Philadelphia,

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and I think it clear on the authorities that the service of that writ against A. Schwarz gave the court no jurisdiction to enter a judgment against Anton Schwarz, and consequently the entry of the judgment against A. Schwarz was not a judgment against Anton Schwarz.

“In the case of Grant v. Birdsall (48 Super. Ct, 428), cited by the plaintiff, it appeared that, in proceedings supplementary to execution, defendant had obtained and signed adjournments, and had promised at one of the adjournments to pay the judgment, and the court held that the objection had been waived. There is nothing in the case at bar from which a waiver of the objection could be founded.

“ I have examined all the cases cited, and am clearly of the opinion that the judgment of the court of common pleas, of Philadelphia, against A. Schwarz, is not a judgment against Anton Schwarz, and the plaintiff is not entitled to recover.

“The complaint must therefore be dismissed with costs. Findings to be settled on two days’ notice.”

Blair, Snow & Rudd, and B. F. Blair, for appellant.

I. It appears'most conclusively, not only by the record, but also by the findings, that the letter A was used as an abbreviation. The name of the defendant in the Pennsylvania suit is mentioned repeatedly both in the record of that suit and in the findings here, and in not a single instance is the letter A used as a part of the defendant’s name without being followed by a period.

A single letter, when used as part of a name, if followed by a period, is used as an initial of a name, and not as, in itself, a name.

II. The defendant was not sued “by a wrong name,” in the action in Philadelphia, but merely by an abbreviation of his true name.

Prima facie, personal service of the process of a court of general jurisdiction upon a party gives that court jurisdiction of the person served, therefore it is for de

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fendant to show why personal service oí process upon a defendant so designated does not confer upon the court jurisdiction to render judgment against him. (Counsel here commented on and distinguished authorities cited in respondent’s points.)

Thus it appears that not one of the cases cited by the defendant supports the proposition that a valid, judgment may not be rendered by default against a defendant sued by the initial of his Christian name, unless it is to be held, as a matter of law, that the initial is really another and a wrong name for' the defendant—a view which no case we have been able to find supports.

HI. That a valid judgment by default may be entered against a defendant sued by the initials of his Christian name, see Grant v. Birdsall, 2 Civ. Pro. Rep. 422; Lynch v. Tomlinson, N. Y. Daily Reg. Oct. 30; Sarony v. The Burrow Giles Lithographic Co. 16 Rep. 80; Bell v. Sun Printing, etc. Co. 42 Super. Ct. 567; Lucas v. Farrington, 21 Ills. 31; Fenton v. Perkins, 3 Mo. 106 ; Weaver v. McElhenon, 13 Ib. 89 ; State v. Burtis, 34 Ib. 92; Ferguson v. Smith & Dunham, 10 Kans. 394 ; Martin v. Barron, 37 Ib. 30; Jones’s Estate, 27 Penn. 336 ; Weber v. Davis, 5 Allen, 393 .

Wehle & Jordan and Henry Wehle, for respondent.

I. A summons not addressed to a person, but served upon him, does not authorize his appearance in court (Gannon v. Myers, Daily Reg. Nov. 19, 1886).

II. A single letter, if a vowel, can form a name by itself (Garish, v. Alabama, 53 Ala. 576 ; 18 Alb. L. J. 505). Even if “A.” in A. Schwarz should stand merely as an initial, the defendant was not bound to assume that it-stood for his initial. The law assumes that every person has a Christian name and a surname, and requires that every person, whose name is known, must be proceeded against by that name. It was the absolute right of the defendant, when served with a summons of the court of common pleas, to disregard the same (Gardner

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v. Kraft, 52 How. 99 ; Farnham v. Hildreth, 32 Barb. 277 ; Patrick v. Solinger, 9 Daly, 149 ; McCabe v. Doe, 2 E. D. S. 64; Davenport v. Doady, 3 Abb. Pr. 409 ; Frank v. Levie, 5 Rob. 599 ; Van Vorhis v. Budd, 39 Barb. 479 ; Finch v. Cocken, 3 D. P. C. 678; Miller v. Foley, 28 Barb. 630 ).

in. There is no intimation upon the record, or otherwise, that any one but A. Schwarz was intended to be sued. There is no evidence offered to show that A. Schwarz, who made the promissory notes upon which the judgment was recovered in Philadelphia, has a name different from A. Schwarz, or that he is identical with the defendant. There is no intimation upon the record that “A” was intended as an initial, and hence this court must assume conclusively that “A” was intended as a name. It must be assumed that the common law governs the course of procedure in Pennsylvania, and the case of Kinnersley v. Nott (7 Dowling & Loundes, 128) illustrates to what extent the common law adheres to the rule above quoted. Even if “A” is intended as an initial, it stands no more for Anton than it stands for Arthur or any other name commencing with “A.”

IV. It is the policy of the law that a person served with process should be aware that the process is intended for him, hence a designation of his name is required, and, even under the liberal course of procedure prescribed by our Code, where the name of the person to be served with process is unknown, it is necessary to add “a description tending to identify him” (Code, § 51; Weil v. Martin, 1 Civ. Pro. R. 133; Pindar v. Black, 4 How. 95 ). Where the defendant is not thus named or identified, he is not bound to take cognizance of the process (Gardner v. Craft, 52 How. 499 ; Muldoon v. Pierz, ] Abb. N. C. 309; Horback v. Knox, 6 Penn. St. 377 ).

V. Proof of identityvwas not offered, and would have been inadmissible had it been offered. In actions on judgment against natural persons it is not permissible

The judgment should be affirmed with costs on the opinion of the learned judge below.

Cases cited

Farnham v. Hildreth 32 Barb. 277 N.Y. Sup. Ct. 1860-07-03 p. 173
Davenport v. Doady 3 Abb. Pr. 409 N.Y. Sup. Ct. p. 173
Frank v. Levie 5 Rob. 599 N.Y. Super. Ct. p. 173
Van Voorhis v. Budd 39 Barb. 479 N.Y. Sup. Ct. 1863-05-11 p. 173
Miller v. Foley 28 Barb. 630 N.Y. Sup. Ct. 1859-04-06 p. 173