Orr v. Byers

198 Cal. App. 3d 666, 244 Cal. Rptr. 13 (1988)

 

RULE:

The doctrine of idem sonans is that though a person's name has been inaccurately written, the identity of such person will be presumed from the similarity of sounds between the correct pronunciation and the pronunciation as written. Therefore, absolute accuracy in spelling names is not required in legal proceedings, and if the pronunciations are practically alike, the rule of idem sonans is applicable. The rule is inapplicable, however, under circumstances where the written name is material. To be material, a variance must be such as has misled the opposite party to his prejudice. For example, although the names Eliot, Elliot and Elliott are idem sonans, if the failure to use the correct name misleads and prejudices a party, the court will refuse to extend the doctrine.

FACTS:

A written judgment obtained by the husband of plaintiff administratrix misspelled the name of defendant judgment debtor. The abstract of judgment that was recorded also misspelled his name. When he later sold his real property to defendant realty purchaser, a title search failed to disclose the abstract of judgment, such that the judgment lien was not identified and the proceeds were not used to satisfy the judgment. The husband then sought a declaratory judgment that defendants judgment debtor, realty purchaser, and lenders had constructive notice of the judgment lien under the doctrine of idem sonans because, when pronounced, the misspellings all sounded like the correct name. When the husband died, plaintiff was substituted in his place. Judgment was entered for defendants and plaintiff appealed.

ISSUE:

Does an abstract of judgment containing a misspelled name impart constructive notice of the judgment lien under the doctrine of idem sonans?

ANSWER:

No.

CONCLUSION:

The court held that idem sonans did not apply to impart constructive notice of the judgment lien because the proper spelling of defendant judgment debtor's name was a material matter to give record notice. Idem sonans applied only to issues of identity and would not relieve a judgment creditor of the obligation to file a proper abstract.

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