Nat'l Packaging Corp. v. Belmont - 47 Ohio App. 3d 86, 547 N.E.2d 373 (1988)

Rule:

The arbitrary orthography and pronunciation given to proper names, and the variant spelling resulting from ignorance have led the courts to formulate the doctrine of "idem sonans," which means "sounding the same." Under this doctrine a mistake in spelling the name of a party is immaterial if both modes of spelling have the same sound. The grounds for applying the doctrine to slight variations in spelling is that of de minimis non curat lex -- the principle that the law is not concerned with trifles. The general rule in Ohio seems to be that a change in the spelling of a word which does not alter its meaning, or in the spelling of a name where the idem sonans is preserved, is not a material variance. Thus, it is not every mistake in names that will invalidate an instrument or proceeding. To have this effect, the mistake must be such that a person cannot be identified, or that the error describes another. Since words are intended to be spoken, bad spelling will not vitiate their intended effect where the sound is substantially preserved. 

Facts:

National Packaging Corporation ("NPC"), sued Michael Bolan, d.b.a. Trade Packaging, in the Franklin County Court of Common Pleas. On November 25, 1983, NPC obtained a judgment for $ 3,331.76 plus interest; and, at a later time, it certified the judgment in Hamilton County, with Bolan's name incorrectly spelled "B-O-L-E-N" in the docket book. At the time the judgment was certified, Michael Bolan owned property in Hamilton County at 8107 Camargo Road and 815 Indian Hill Road. Bolan's ex-wife, Elaine (now Elaine Belmont), brought a foreclosure action against the property located at 815 Indian Hill Road to collect overdue child-support payments. The property was sold in a sheriff's sale to L. Michael and Elaine Belmont (Bolan's exwife and her new husband). Because NPC's judgment was filed under an incorrect spelling of Bolan's name, NPC did not receive notice of the sheriff's sale and was unable to protect its interest in the property. The Belmonts subsequently sold the Indian Hill Road property to Richard E. and Vera DeCamp. It was only after this second conveyance that NPC brought its own foreclosure action, asserting the certified judgment from Franklin County against both the Indian Hill Road property and the Camargo Road property. The Belmonts moved to dismiss NPC's complaint in a filing that the trial court treated as a motion for summary judgment. The DeCamps then moved for summary judgment against NPC and the Belmonts. NPC responded with its own motion for summary judgment against the Belmonts and the DeCamps. On April 30, 1987, the trial court overruled NPC's motion for summary judgment, entered summary judgment for the DeCamps and the Belmonts against NPC and held that the DeCamps' motion for summary judgment against the Belmonts was moot. The court dismissed all other claims existing among these three parties, adding a Civ. R. 54(B) certification in a nunc pro tunc entry dated July 6, 1987, and this appeal followed.

Issue:

Did the venerable doctrine of idem sonans apply to the facts and circumstances set forth in the record?

Answer:

No

Conclusion:

The court affirmed the trial court's decision, finding the doctrine of idem sonans was inapplicable to misspelled names in judgment-lien name indexes. The doctrine of idem sonans, which meant "sounding the same," held that a mistake in the spelling of a name where the idem sonans was preserved did not invalidate an instrument. However, due to the vast growth of the population and numerous surnames, the additional time necessary for land abstractors to examine name indexes would make the examinations financially prohibitive. Thus, the trial court did not err in denying NPC’s summary judgment motion.