ning v. Krapfl, 61 Iowa, 417, 14 N. W. 727, 16 N. W. 293; Thornily v. Prentice, 121 Iowa, 89, 100 Am. St. Rep. 317, 96 N. W. 728; 16 Am. & Eng. Enc. Law, p. 122.

ber 12, 1908, plaintiff took a judgment against the defendants for $6,070.66, and costs. On January 4, 1909, defendants entered a motion to set aside the judgment and quash the writ. On March 4, 1909, the

Moore, J., delivered the opinion of the court entered an order granting defendants' court:

The plaintiff is a resident of Ohio. The defendants reside in the Republic of Mexi

Co.

motion. The case is brought here by writ of error.

The contentions of defendants are: (1) That, because of the failure of the plaintiff to publish the notice of attachment, as required by statute, the court never acquired jurisdiction in the case. (2) That, because of the plaintiff's failure to file proof of publication of the notice of attachment, as required by statute, the court, in any event, did not acquire jurisdiction to render judg ment in the case. Both of these contentions are opposed by the plaintiff, and while he concedes that, because of lack of personal service of process, it would be the duty of the court to set aside the judgment, and permit the defendants to come in and defend, yet it is his contention that his proceedings and judgment are regular, and the court has only discretionary power to set aside the judgment. In our view of the case, the only question necessary to be con

cases involving the question of the substituted or constructive service of process under the wrong name.

Plaintiff proceeded against the defendants in the circuit court for the county of Gratiot, by attachment, by reason of the nonresidence of the defendants. The writ issued July 10, 1908. Plaintiff attempted to publish a notice of attachment, but in the published notice named the defendants as "B. W. Bourne and William H. Dunton." On October 15, 1908, an affidavit of publication was filed, made by one of the publishers of the Gratiot Journal, stating therein that the notice annexed thereto had been published in said paper at least once in each week, for six weeks, and that the first publication thereof was on the 27th day of August, 1908. This affidavit was subscribed and sworn to on October 9, 1908. On November 6, 1908, the plaintiff filed his declaration, and on the following day entered the default of the defendants. On Novem-sidered is whether the publication of notice appeared that a judgment was obtained against William M. Thornily, on a substituted service "on W. M. Thornily by leaving a copy of notice with Paul Thornily, Thus, in Puckett v. Hetzer, 82 Kan. 726, over fifteen years of age, his son," when the 109 Pac. 285, it was said: "The notice defendant's real name was Willis H. Thorni- only need be considered. If the proper ly, the court held that the names were not party were duly served, other mistakes are idem sonans, and that the judgment was inconsequential. Where service by publicavoid. It was said: "A judgment rendered tion is undertaken, the notice must state the upon such service will bind no one not prop-name of the party to be served; and the erly named in the record. This does not question is whether the name 'Joseph Remmean that the name must be correctly er,' appearing in a printed notice of that spelled, but it must be so nearly correct as character, looks enough like, and when proto come within the rule of idem sonans; nounced sounds enough like, 'Joseph Renthat is, if the name, as spelled or written ner' to stand for the same person. Perfect in the record, when pronounced according orthography is not required. Perfect idento commonly accepted methods, conveys to tity of sound is not required. Grant that the ear a sound practically identical with there is some orthoëpical standard in existthe sound of the correct name, as commonly ence, pronunciation modeled after it will pronounced, the designation is sufficient, vary in different localities, with different and no advantage can be taken of the individuals in the same locality, and with clerical error. Where, however, the the same person at different times; and record of a judgment entered upon a notice practical similarity is all that can be inof this kind presents not a mere discrep- sisted upon. ancy or variation in the spelling of a defendant's name, but the use of a name other and different than that borne by the person against whom such judgment is sought to be enforced, the rule of idem sonans is not applicable, and the adjudication is of no validity against such person. Where the rights of a person are to be concluded by a notice which is merely constructive, not actual, it is right and just that the party who wishes to avail himself of its benefits be held to follow the forms provided by statute."

In other cases it has been held that the doctrine of idem sonans does apply to

Besides what has been said in reference to sound, the appearance of the printed words 'Joseph Remer' was enough like that of 'Joseph Renner' to put a fairly prudent person on guard against a clerical or typographical error. Much mail has been opened without hesitation when the divergence from correct orthography was much greater."

In Rowe v. Palmer, 29 Kan. 337, it was held that a judgment in an action against "Joseph Shaffer," to quiet the title to a certain piece of land, where the service of process was by publication, was valid against "Joseph Shafer," the correct name of the owner of the land. Horton, Ch. J.,

was fatally defective because defendant Wil- | tachment case. There an alias writ was liam H. Denton was called therein William H. Dunton.

The claim of plaintiff as to this feature of the case is stated by counsel as follows: "It seems to me clearly the name of 'Dunton' is idem sonans to 'Denton,' or perhaps, more properly speaking, the names of 'Bourne and Dunton' are idem sonans to 'Bourne and Denton.' Especially is this so where they are brought into court at the suit of Fred Schoenfeld, and declared against as joint defendants under a written contract relation. It will be interesting in this connection to examine some of the cases in Michigan upon the question of idem sonans. The name of Kinney and Kenney are held idem sonans. Kinney v. Harrett, 46 Mich. 87, 8 N. W. 708. Also Dixon and Dickson. Reading v. Waterman, 46 Mich. 107, 8 N. W. 691. Also Brearley and Brailey. People v. Gosch, 82 Mich. 31, | 46 N. W. 101. Also Ruty and Ruthe. Ruthe v. Green Bay & M. R. Co. 37 Wis. 344; Van Benschoten v. Fales, 126 Mich. 176, 85 N. W. 476." An examination of these cases will show that they are clearly distinguishable from the one before us. Only one of them, the last one, was an atsaid: "Within the doctrine of idem sonans, the variance between Shaffer and Shafer is not sufficient to render the judgment. a nullity."

In Stein v. Hanson, 99 Minn. 387, 109 N. W. 821, it appeared that the original notice of the expiration of the time for redemption of land from a tax sale was directed to "Hans E. Hanson," while the notice as published was directed to "Hans E. Hansen." It was held that this was a mere irregularity, and that "the rule of idem sonans deprives the contention of merit."

In Lane v. Innes, 43 Minn. 143, 45 N. W. 4, it was held that a published summons which named the defendant as "Berlah M. Plimpton," whereas her true name was "Beulah M. Plimpton," was not such a material change as to be misleading, citing the note in 13 Am. Dec. 233, on the doctrine of idem sonans. Gilfillan, Ch. J., dissents for the following reason: "I think in statutory proceedings to obtain substituted service.-service by notice given through a newspaper,-inserting the name 'Berlah' instead of the true name "Beulah,' no matter how it occurred, by mistake or otherwise, would vitiate the service. One name is not idem sonans with the other."

The doctrine of idem sonans has been applied in a great number and variety of cases where the service of process was by substitution on publication under the wrong name, and the service was upheld or invalidated without any discussion as to the applicability or nonapplicability of the do trine to such exceptional cases. No attempt

taken out, and the names of the defendants were therein correctly given, and a personal service of the writ was had upon one of the defendants. In the case at bar there was no personal service.

In Granger v. Superior Ct. Judge, 44 Mich. 384, 6 N. W. 848, Justice Campbell, speaking for the court, said: "Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So where there has been no personal service within the judisdiction, the doctrine prevails that proceedings not conforming to the statutes are void; but this is on the ground that there has been no service whatever, and the party, therefore, has not been notified in any proper way of anything. The purpose of the statutory methods is to furnish means from which notice may possibly or probably be obtained; but, as a court acting outside of its jurisdiction is not recognized as entitled to obedience, the special statutory methods stand entirely on their own regularity, and, if not regular, cannot be said to have been has been made to exhaust these cases, but among them are the following: Grober v. Clements, 71 Ark. 568, 100 Am. St. Rep. 91, 76 S. W. 555; Seaver v. Fitzgerald, 23 Cal. 93; McCash v. Penrod, 131 Iowa, 631, 109 N. W. 180; Harrell v. Neef, 80 Kan. 348, 102 Pac. 838; Entrekin v. Chambers, 11 Kan. 377; Jenne v. Jenne, 7 Mass. 94; Graton v. Holliday-Klotz Land & Lumber Co. 189 Mo. 322, 87 S. W. 37; Simonson v. Dolan, 114 Mo. 176, 21 S. W. 510; Troyer v. Wood, 96 Mo. 478, 9 Am. St. Rep. 367, 10 S. W. 42; Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. 44; Whelen v. Weaver, 93 Mo. 430, 6 S. W. 220; Burge v. Burge, 94 Mo. App. 15, 67 S. W. 703; Kuhn v. Kilmer, 16 Neb. 699, 21 N. W. 443; Ellis v. State, 3 Tex. Civ. App. 173, 21 S. W. 66, 24 S. W. 660; Kelly v. Kuhnhausen, 51 Wash. 193, 130 Am. St. Rep. 1095, 98 Pac. 603, distinguishing Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. 44; Bigelow v. Chatterton, 2 C. C. A. 402, 10 U. S. App. 267, 51 Fed. 614.

As to the use of a nickname in the publication of process, see note to Ohlman v. Clarkson Sawmill Co. 28 L.R.A. (N.S.) 432.

As to the use of initials instead of Christian name in publication of process, see the note to Butler v. Smith, 28 L.R.A. (N.S.) 436.

As to the effect of a summons or notice to a person by wrong initial, see the note to Illinois C. R. Co. v. Hasenwinkle, 15 L.R.A. (N.S.) 129.

As to the omission of Christian name in publication of process, see note to Whitney v. Masemore, 11 L.R.A.(N.S.) 676. E. M. S.

conducted under the statutes. The distinc- | pellee, that not only can the Christian tion is obvious, and is not imaginary."

In Steere v. Vanderberg, 67 Mich. 530, 35 N. W. 110, Justice Champlin, speaking for the court, said: "It is a settled rule of law that all exceptional methods of obtaining jurisdiction over persons not found within the state must be confined to the cases and exercised in the way precisely indicated by the statute; and it may also be regarded as settled law that a failure to comply with the statutory requirements where the jurisdiction conferred is special, and no personal service is obtained, renders the judgments null and void. Thompson v. Thomas, 11 Mich. 274; King v. Harrington, 14 Mich. 532; Millar v. Babcock, 29 Mich. 526; Johnson v. Delbridge, 35 Mich. 436; Woolkins v. Haid, 49 Mich. 299, 13 N. W. 598; Rolfe v. Dudley, 58 Mich. 208, 24 N. W. 657."

names be entirely omitted, but the initial letters of the Christian names transposed, this might become the favorite mode of giving notice by publication. It appears to us that we should open the door to mischief of which no one could see the end."

In Hubner v. Reickhoff, 103 Iowa, 368, 64 Am. St. Rep. 191, 72 N. W. 540, it was held that where service in an action for divorce against a nonresident is by publication, and defendant makes default, the court cannot assume that the name "Keesel" in the notice should be understood as "Keisel," the name of the defendant, on the principle of idem sonans, and the decree was held void. See also Estlow v. Hanna, 75 Mich. 219, 42 N.. W. 812, and Cochrane v. Johnson, 95 Mich. 67, 54 N. W. 707.

Applying the principles stated in these cases, we think it clear that in an attachIn Jaffray v. Jennings, 101 Mich. 515, 25 ment case against Benjamin W. Bourne and L.R.A. 645, 60 N. W. 52, Justice Hooker, William H. Denton, nonresidents, where no speaking for the court, said: "We start one is personally served with process, the with the proposition that attachment is a court does not get jurisdiction because of harsh and extraordinary remedy, unknown | the publication of a notice describing the to the common law; and the statutory provisions upon which the right depends, being in derogation of the common law, must be strictly construed, and cannot be extended beyond their terms. See cases cited in 1 Jacob & C. Dig. p. 96, § 1; Estlow v. Hanna, 75 Mich. 219, 224, 42 N. W. 812."

In the opinion in the case of Fanning v. Krapfl, 61 Iowa, 417, 14 N. W. 727, 16 N. W. 293, is found the following language: "In considering the question, we must not be misled by the singularity of the name. If a notice to A. B. Smith would not be sufficient if published as to B. A. Smith, then we think that the notice in this case is not sufficient. The question before us concerns the title to real estate, and it would not be possible to base any safe rule upon the distinction between names that are peculiar and those that are not peculiar. Notice by publication, even where there is no misnomer, does not afford a very strong natural presumption that the fact of the pendency of the action will be brought to the defendant's actual knowledge. Notice by this mode is allowable only out of necessity. It must often happen that great injustice is done and great hardship suffered. We are not disposed to open the door any wider than necessity requires. Whoever undertakes to give notice by publication, and misnames the defendant, is without excuse. It requires very little care to publish the defendant's name correctly. We are evidently justified in holding the plaintiff who gives notice by publication to a considerable degree of strictness. If we were to adopt the rule contended for by the ap

defendants as Benjamin W. Bourne and William H. Dunton.

Judgment is affirmed.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concur.

NEW YORK COURT OF APPEALS.
FRANK W. MOLLOY, Appt.,

V.

CITY OF NEW ROCHELLE, Respt.

(198 N. Y. 402, 92 N. E. 94.) Municipal contracts

tion of statute

letting in violaremedy of bidder. 1. A statutory requirement that contracts for the performance of municipal work shall be let to the lowest bidder does not Note. - Remedy of lowest bidder for refusal of authorities to award contract to him.

It is assumed in this note that the bidder who is seeking to enforce his rights is the lowest bidder, or the lowest responsible or best bidder, so that, under the law, it is the duty of the proper public officials to award him the contract; and the question to be treated here is whether, assuming that he is entitled to the contract and its benefits, he has any remedy, and, if so, what remedy, if the officials refuse to fuse to enter into a formal contract with accept his bid, or, having accepted it, rehim, or otherwise seek to deprive him of the benefit of his bid. What constitutes a bidder the lowest bidder is not discussed.

The defendant's charter provides: "Whenever any expenditures to be made or incurred by the common council or city board or any city officer in behalf of the city, for shall exceed $200,

APPEAL by plaintiff from a judgment work to be done, or materials or supplies

Injunction.

entered upon an order of the Appellate to be furnished, Division of the Supreme Court, Second De- the city clerk shall advertise for and reHence, the right of the officers to exercise | feat the right to any relief. Colorado Pava discretion as to who is the lowest bidder ing Co. v. Murphy, supra. is not treated. So, too, cases are omitted where the deciding point was the right to reject any and all bids, and to abandon the work or readvertise. As to right of lowest bidder on a public contract, see note to Anderson v. St. Louis Public Schools, 26 L.R.A. 707. As to sufficiency of specifications where public contract is required to be awarded to lowest bidder, see note to Hannan v. Board of Education, post, 214. If a duty is imposed for the benefit of one person or class of persons, and another's advantage from its discharge is merely incidental, and not a part of the design of the statute, no such right is created in favor of the latter as forms the subject of an action at law or of a suit in equity. As sustaining this general proposition, see, inter alia, Colorado Paving Co. v. Murphy, 37 L.R.A. 630, 23 C. C. A. 631, 49 U. S. App. 17, 78 Fed. 28, appeal dismissed for want of jurisdiction in 166 U. S. 719, 41 L. ed. 1188, 17 Sup. Ct. Rep. 997; Talbot Paving Co. v. Detroit, 109 Mich. 657, 63 Am. St. Rep. 604, 67 N. W. 979,—which are all cases relating to rights of lowest bidder.

The usual provision in municipal charters, that contracts for public work shall be awarded to the lowest or lowest reliable and responsible bidder, was not enacted to furnish employment for contractors, or to benefit a bidder for such work, but with the design to benefit and protect the property holders and taxpayers of the municipaliColorado Paving Co. v. Murphy, supra; Vincent v. Ellis, 116 Iowa, 609, 88 N. W. 836; Talbot Paving Co. v. Detroit, supra; East River Gaslight Co. v. Donnelly, 93 N. Y. 557; Carmichael v. McCourt, 27 Ohio C. C. 775;. Com. ex rel. Snyder v. Mitchell, 82 Pa. 343; and other cases.

ties.

This principle, therefore, has been held to be fatal to the right of the lowest bidder to any relief, either in law or equity, for failure of the authorities to award him the contract, or to prevent the contract being awarded to another. It goes not to defeat any particular cause of action, but to de

holders, whose rights of property may be
Hence, although taxpayers and property
injuriously affected by the fraudulent or
arbitrary violation of this and similar pro-
visions of city charters, may maintain a
suit to enjoin such action by public officers
the lowest reliable and responsible bidder for
whose duty it is to comply with them, yet
a contract for public work has no such
vested or absolute right to a compliance
enable him to maintain
with such provisions of the statutes as will
an injunction
against their violation by public officials,
because these provisions were not enacted
for his benefit. Colorado Paving Co. v. Mur-
phy and Carmichael v. McCourt, supra;
Adams v. Ives, 63 N. Y. 650.

But it has been held that where the officials are vested with the right to reject all bids or accept the lowest, the court, at the suit of the lowest bidder, may enjoin the officials from entering into a contract with a higher bidder, but will not, by mandamus, compel them to award the contract to the lowest bidder. Akron v. France, 24 Ohio C. C. 63.

One claiming to be the lowest bidder for cleaning certain streets cannot, when his bid is rejected and the contract awarded to another, have a temporary injunction against the officials, forbidding them from proceeding under such contract, continued in force until litigation regarding the rights of such bidder is finally determined, since such injunction could be of little value to such bidder, and might seriously affect the public_health. McCafferty v. Glazier, 10 How. Pr. 475.

The lowest bidder for laying a street car track, whose only competitor was an exist ing street railway company, cannot, when the council rejects both bids, and allows the street railway company to exercise a right given in their franchise to build the track as an extension of their existing tracks, have such construction of the tracks