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Probably more futile judgments and defective titles have re sulted from inexactness in the terms in which such directions have been given, or in the manner in which they have been understood, than from any other one cause.
Since the practitioner and the conveyancer have frequent occasion to consider the sufficiency of publication under diverse forms of direction, we will, while stating the practice as to publication under the form of statute or rule now most common, advert to the principal other forms, and the principles of construction applicable in questions of doubt.
2. Materiality of the object of the notice.]— The cardinal principle for interpreting the various directions as to time of pubJishing a legal notice lies in the fact that some notices relate only to the past, and are published to advertise all concerned that a thing has been done. In these cases justice requires that publication should be promptly made and repeated with suffcient frequency to give to all a reasonable means of knowledge. Of this character, for instance, are notices that the name of a corporation has been changed by the court.
Other notices relate to the future and are published to warn that a thing will be done on or after a day named, or that a thing must be done by the adverse party on or before a day named. In these cases justice requires that the notice should commence long enough before the day fixed or limited to give reasonable opportunity to prepare and should be followed with reasonable promptitude by the opportunity to act. Of this character, for instance, are notices that a corporation is about to apply to the court to change its name.
A part of the confusion in the cases in the books arises from the fact that a direction for the latter class of purposes — viz., notice of a future event — is often construed as requiring a longer period than the same, or very nearly the same words when used as a direction for a purpose of the former class.
Thus, if the law contemplating two weeks' notice of a future matter allows it to be given by publication in each of two sue
excess expressed in the order. Totten v. Stuyvesant, 3 Edw. 500; Burnes . Burnes, 61 Mo. Ann. 612; Sellers 1. Talby, 33 Miss. 592.
So, where the order designated a time less than the statute, compliance with the statute was held might be supported by amending the order. Alvord v. Beach, 5 Abb. Pr. 451.
cessive weeks, it is plain that a notice published on two successive Saturdays, that the act would be done on the Monday following the later publication, would be a literal compliance with the statute, but would give only seven days' notice, which it would be unsatisfactory to treat as regular. While if the same direction were given for publishing notice that a limited partnership had been formed, or that a corporation had been dissolved, a literal interpretation of the statute, by holding that the act done on a Friday could be advertised on the two following Saturdays, would work no harm to any one, but, on the other hand, the promptitude of it would be an advantage.
The first question then, in case of doubt, is to ask whether the object of the statute be to secure notice of a specified length, as well as publications of a specified number and frequency.
61 Thus where the statute required that notice of a town meeting should be published “ for at least two weeks ” prior to the election, and an election was held May 5, 1868, and the first publication of the notice was April 24, 1868, held, that this was not a compliance with the statute.
“ The plain meaning,” says Andrews, J., “is that at least two weeks should intervene between the publication of the notice and the election. The statute is not satisfied by a publication in two successive weeks before the election.” People ex rel. Hetfield v. Trustees, 70 N. Y. 28, 32.
So, in Market Nat. Bank v. Pacific Nat. Bank, 11 Abb. N. C. 104; s. C., 89 N. Y. 397, the same court, in discussing the construction of the provisions of N. Y. Code Civ. Pro., § 440, as to publication of summons, says, per Miller, J.: “ Section 440 provides for publication for a specified time, not less than once a week, for six successive weeks. The number of weeks is specified, and not the number of times. Section 441 declares that the time shall be complete upon the day of the last publication, and section 787, that the period of publication must be computed so as to include the day which completes the full period of publication. It will be perceived that the publication must be made for a specified period of time, and when the statute provides for six weeks, it is obvious that this period will not elapse prior to its expiration. It does not provide for a publication six times within six weeks, but for a time not less than once a week for six successive weeks. The publication evidently means rather more than printing the notice. Its object is to give notice by means of the newspapers, and it cannot be claimed that such notice is given for six weeks, before that time expires. Looking at the various provisions referred to, it is a reasonable construction that the law intended a full six weeks' publication, and not six times in six different weeks. If it were otherwise, the time would vary and lead to confusion, and the defendant might not at all times know when it would expire, as the summons need not be published on the same day in each week (Steinle v. Bell, 12 Abb. Pr. (N. S.) 171).” (S. P., McDonald v. Cooper, 32 Fed. ep. 745; Hart v. Ind. Nat. Bank, 125 Ind. 381, 9 L. R. A. 676, 25 N. E. Rep. 558.)
“ In cases where the service of process is made by publication, it is of no little importance that the time of its expiration should be fixed and certain, and we think that such was the intention of the provisions cited in reference to such service.”
Seven insertions in the six weeks are not required, though it was thought, in Young 0. Fowler, 73 Hun, 179, 25 N. Y. Supp. 875, that the statutes mighi be so construed.
3. Notice relating to future proceedings — Direction by weekly publication.]— The most common and best understood formula now is to direct publication to be made a specified number of times (usually once or twice) in each week, for a specified number of weeks 62 (usually three or six) immediately preceding the future event.
This form of direction is generally held to require two things, viz. (1), publication in each of the specified number of weeks (each week being considered as a definite portion of time from Sunday to Saturday inclusive),63 and (2), twenty-one days (or forty-two, as the case may be) before the day fixed. In other words, it requires that the notice shall give to one reading it on the day of first publication, three or six weeks' notice, as well as that the repetitions shall present the notice so many times in each of the specified number of weeks.
In Waters . Waters, 7 Misc. 579, 27 N. Y. Supp. 1004, it was held that where the first notice was printed July 14th, and the last on August 17th, there had not been a publication“ once a week for six weeks.”.
In Estate of Koch, 19 Civ. Pro. Rep. 165, 12 N. Y. Supp. 94, the same rule was applied to the publication of a surrogate's citation.
Contra, Calvert v. Calvert, 15 Col. 390, 24 Pac. Rep. 1043.
In Doheney v. Worden, 75 App. Div. 47, 77 N. Y. Supp. 959, it was held that under a requirement of publication once a week for six weeks," and the last publication, falling on Monday, which was a holiday, was, for this account, made the previous Saturday, the statute was not satisfied.
In Hagerman v. Ohio, etc., Savings Assoc., 25 Ohio St. 186, under a requirement of notice of at least thirty days before sale, in some newspaper, adding that if a weekly newspaper, it shall be sufficient to insert it in five ronsecutive numbers,” held, that five full weeks need not be allowed, but thuty days, with five insertions, one on the same day of each week, was enough.
62 A requirement that the publication be made " once a week for " (construed as during) “ four weeks,” is to be construed differently from a require ment of publication “ once a week for a period of not less than four weeks. This latter requirement is tantamount to as many days as are included within such period. See Leach 0. Burr, 188 U. S. 510, 47 Law Ed. 567; Early t. Homans, 16 How. (U. S.) 610.
63 Ronkendorf v. Taylor, 4 Pet. 349, 361. This decision was distinguished in Leach v. Burr, 188 U. S. 510, 47 Law Ed. 567, where the requirement was "publication at least twice a week for a period of not less than four weeks, the court holding that two publications for four weeks, each of which commenced Sunday and ended Saturday, was not required. The order having been entered Friday, Jan. 26, a publication on that day, and on Jan. 30, Feb. 2, 6, 9, 13, 16, and 20, complied with the statute. Steinle i. Bell, 12 Abb. Pr. (N. S.) 171.
64 In Early v. Homans, 16 How. (U. S.) 610, defendant in ejectment claimed under a tax sale, which the trial court held invalid, because “a period of twelve full weeks had not intervened between the first publication and the time of sale, but only eleven weeks and four days.” The statute (4 U. S. Stat. at Large, 78) required publication “ once in each week for at least twelve successive weeks." Held, that the words " for at least " compel a construc. tion that a duration of the time that there is in twelve successive weeks, or 84
Thus let us suppose that on Dec. 31, 1904, which is Saturday, notice is first published under a direction to give notice once in each week for three weeks. That advertisement satisfies the requirement as to the “once” in that week. Let it be repeated once in each of the two succeeding weeks, that is to say those
days, was intended. Any other construction would not give all the words of the statute a meaning. Judgment in avoidance of the sale affirmed.
In Parsons v. Lanning, 12 C. E. Green, 70, held, that the act in relation to statutory and judicial sales of land, requiring notice to be published at least four weeks successively, once a week next preceding the time appointed for the sale,” required the first publication to be made four whole weeks next preceding the day of sale. Accordingly, where for a sheriff's sale of mort. gaged premises on Feb. 10th, the insertions were on Jan. 15, 22, 29, and Feb. 5, the sale was set aside, because four full weeks did not intervene.
In Erie Savings Fund, etc., Assoc. v. Thompson (Erie C. P., Pa.), 13 Phil. 511, under the Act of 1836, section 63, which requires notice of sheriff's sale of real estate to be advertised, etc., “ once a week during three successive weeks previous to such sale,” the first insertion was on Oct. 23d, advertising the sale for Nov. 12th, making but twenty days' notice from first publication. Held, insufficient. Rule to stay made absolute.
In Harmon v. Whittemore, i Cin. L. Bul. 109, judgment by default was vacated on the ground that the summons by publication was irregular. The act required publication of the summons " for six consecutive weeks." Here there were six publications in six consecutive weeks. But the default was reckoned from the date of the last publication, and not from a day full six weeks from the date of the first publication. “ Six consecutive weeks,” the court say, mean six weeks of seven full days each.
In Savings, etc., Soc. v. Thompson, 32 Cal. 347, under a statute which required a publication of the summons once a week” for “not less than three months” the publication commenced Jan. 10 and ended Apru y. Held, a publication for three calendar months, and sufficient. A distinction is made here between this class of cases and where a certain time must elapse before a designated day when a certain act is to be done, as a sale. Judgment for plaintiff affirmed.
In Lawlins v. Lackey, 6 Monr. 70, complainant had decree for want of appearance or answer, ter service by publication. The certificate of publication was dated Aug. 29, 1818, and certified that the publication “commenced with the first paper in July, and ended with the last paper in August.” On error, the court said: The statute required a publication for two months, which has been uniformly construed to mean calendar months. Nothing short of the full and complete time of two calendar months will be indulged as sufficient execution of the order of publication. This certificate fails to show a publication for two full calendar months. Therefore reversed.
In Mitchell v. Woodson, 37 Miss. 567, publication of process in equity was ordered to be made “ once a week for a month.” The proof showed a publica. tion once a week for five successive weeks, the first insertion being on April 7, and the last on May 5.". Held, that counting both dates of first and last insertions, but twenty-eight days were included. But one of these days must be excluded, which reduces the period of publication to less even than a lunar month, while it is well settled that when a statute requires a month's notice, especially with reference to judicial proceeedings, a calendar month is meant. Decree pro confesso therefore reversed.
In Cox v. North Wis. Lumber Co., 82 Wis. 141, 51 N. W. Rep. 1130, the court held, that where the statute required publication once a week for six successive weeks," and six publications were made on the first day of successive weeks, service was complete one week after the last publication.
In Hill 0. Faison, 27 Tex. 428, a justice had ordered publication for “three
endiny Jan. 7 and 14, 1905, respectively. The requirement of once in each week has now been satisfied, and, according to part of the authorities already stated, the direction supposed being once in each week for three weeks, the whole is satisfied by construing for to mean only in. Upon this view, the act might be
successive weeks previous to the returning” of the writ. The publication was made Nov. 13, 20, and 27, and judgment by default was rendered on Dec. 4, following. On certiorari, held, that the statute (Oldham & White s Dig., art. 1103) which requires publication at least three successive weeks before the return day, is not complied with unless the full term of three weeks, or twenty-one days elapses between the day when the citation is first published and the day on which judgment is rendered. In this case, judg. ment could first have been rendered on Dec. 5, because the third week of the publication would have expired with the 4th. Therefore reversed.
In Francis v. Norris, 2 Miles (Pa.), 150, it was held that section 63 of the Act of June 16, 1836, relating to executions — providing that the sheriff's advertisement, in the newspapers, of his sale of defendant's real estate, shall be “once a week during three successive weeks "— requires that between the date of the first advertisement and that of the sale, three whole weeks shall elapse. S. P., Re Wallace, 2 Pittsb. 145. Stress seems to have been laid on the word " during."
In Evans v. Sidwell, 9 Lanc. Bar. 113, under the Act of March 27, 1824, prescribing that land taken in execution must be advertised once a week *for” three successive weeks: Held, that twenty-one days were required. The court say, that the force of the preposition for ” here is “ during” three successive weeks. Had the legislature intended three weekly advertisements, the word “in” would have properly conveyed that intention. Sale set aside. S. P., Smith v. Rowles, 85 Ind. 264; Meredith v. Chancey, 59 Ind. 466.
In People v. Gray, 10 Abb. Pr. 468, an order in insolvency to show cause on April 25, was published once a week for ten weeks, commencing on Feb. 16. Held,“ not once in each week for ten weeks successively," because only sixty. eight days intervened; whereas the interval between the first publication and the preceding should not be less than seventy days. Discharge set aside.
It was held in Richardson v. Bates, 23 How. Pr. 516, and Brod v. Heymann, 3 Abb. Pr. (N. S.) 396, that “six weeks, once in each week,” requires fortytwo days.
In Jackson v. Van Valkenburgh, 8 Cow. 260, it appeared that notice of mortgagee's sale was first published on July 27, and the sale was made on Jan. 10, following. The power of sale required advertisement for six months. Held, that as the first and last days are never reckoned inclusive, there was not six lunar months' notice [lunar months being then — but not now – held sufficient], and the foreclosure was irregular.
In Anon., 1 Wend. 90, it was held, that “ once in each week, for six weeks successively,” means forty-two days; but this case, though distinguishable, was doubted, by dicta, in 21 N. Y. 150, 153, as it had been, previously, in 5 N. Y. 497, 517. Both of these cases turned on peculiar statutes; and it is safer in practice not to rely upon them as guides in directing publication, however well it may be thought they would serve to sustain a doubtful publication.
The latter view was taken in Valentine v. McCue, 26 Hun, 456, where the N. Y. Supreme Court in the First Department unanimously sustained a sale, under section 1678, when the twenty-one days were not allowed, but only the three weeks' repetitions. The court, after adverting to the settled rule that a week is a period of seven days of time, commencing at twelve o'clock on Saturday night and ending at the same hour on the following Saturday night Iciting 2 Bouv. Law Dic. 647; Ronkendorff v. Taylor, 4 Pet. 349, 361; Bunce