Noall v. Halonen

Oassoday, J.

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 given name of the defendant Carlson is spelled in the notice of appeal “ Manuel,” instead of “ Emanuel,” as in the summons, complaint, and other papers in the case, must be regarded as an immaterial variance. We perceive no substantial reason for requiring the several names of the respective parties to be restated in the body of the notice when, as here, they are fully stated in the title of the cause. The amount of the judgment is correctly stated in the notice. True, such amount is designated therein as “ damages,” and then an additional amount is named therein as costs, but such variance is not sufficiently substantial to deprive the circuit court of jurisdiction. Under the repeated adjudications of this court, the notice of appeal is sufficient when it identifies the party appealing and the cause in which and the judgment from which the appeal is taken. Filer & Stowell Co. v. Sohns, 63 Wis. 118; Schweppe v. Wellauer, 76 Wis. 19; Friemark v. Rosenkrans, 81 Wis. 359.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.