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fied by a publication in it, notwithstanding its professional character. 90
A religious weekly paper is generally held to be a newspaper ;91 also a mercantile review of general circulation among professional and business men.92
18. language.]— It is a general rule that all legal proceedings are to be in the English language, and publication in a newspaper printed in a foreign language does not satisfy an unqualified direction of publication in a newspaper.
90 Kerr v. Hitt, 75 Ill. 51 (under statute “to remedy the evils consequent upon the destruction of public records by fire or otherwise,” which require3 notice by publication in some "newspaper," etc.) Held, that publication in the “ Chicago Legal News," "a journal of legal intelligence, containing deeisions of courts, legal information and general news, was sufficient, on the grounds that by statute (R. S., 1874, p. 723, § 5] legal notices may be published in a secular newspaper of general circulation, or some paper specially authorized by law; and this journal, though specially devoted to legal intelligence, contains also information of general interest. It circulates among Jawyers, real estate and business men, contains information about sales of real estate, advertisement of sales under trust deeds, executions, decrees, etc., and notices of legal transactions. And it is published by a corporation whose charter provides“ any notice or advertisement required by law or the order of any court to be published in any newspaper shall be as good and valid if published in the “Chicago Legal News,” as in any newspaper.” And if notices so published should now be declared illegal, the title to real prop. erty of immense value would be unsettled).
91 Hermandez v. Drake, 81 Ill. 34; Hull v. King, 38 Minn, 349. 92 Williams v. Colwell, 14 App. Div. 26, 43 N. Y. Supp. 1167, 4 Ann. Cas. 96.
63 Cincinnati v. Bickett, 26 Ohio St. 49. Here an advertisement for bidders for a municipal contract, under a statute requiring advertisement in a news. paper, and two, if there be so many, was published in one printed in the English and another printed in German. The court say that the safer and better rule is, that where a statute_requires a publication to be made in a newspaper, a paper published in the English language is to be intended, unless the contrary is expressed or indicated. But the case was decided on another ground.
In Wilder v. City of Cincinnati, 26 Ohio St. 284, however, the court treated such publication as an irregularity which made the advertisement defective. 8. P., Chicago v. McCoy, 136 III. 344; Graham v. King, 50 Mo. 22.
In Wakeley v. Nicholas, 16 Wisc. 588, the curious result was reached of sustaining a notice printed in English in a newspaper, the rest of which was printed in German, on the ground that the statute (R. S., chap. 124, § 10), required publication in a newspaper “ to be designated as most likely to give notice to the person to be served,” and if the judge granting the order, in the exercise of the discretion vested in him by it, directed publication in a German instead of an English newspaper, there could be no legal objection to it. Citing Kellogg v. City of Oshkosh, 14 Wisc. 623, where it was held doubtingly that a municipal corporation could adopt a German paper as the official paper of the city, and that an assessment notice published therein was valid, provided it was printed in the English language.
Such a conclusion, though it may be thought to be justified as a literal observance of the statutes, is a gross perversion of the principles on which service by publication in legal proceedings should be controlled and sustained.
19. place of publication. ]$4— By the New York statute, "where a notice or other proceeding is required by law to be published in a newspaper published in a county, and no newspaper is published therein, or to be published oftener than any newspaper is regularly published therein, the publication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by law.” 95
If each newspaper in the locality in which publication is directed, refuses to publish for the fees prescribed by law, publication
may be made in such newspaper published elsewhere as may be designated by the court or a judge thereof.
20. Sunday paper.] — The service of civil process upon Sunday being forbidden, and the service of legal notices on a Sunday ineffectual, publication on Sunday is futile."
A direction for publication for each day for a week, does not require publication on Sunday.98
94A paper is published in the county where it is issued, although part of it is printed in another state. Palmer i. McCormick, 30 Fed. Rep. 82; Hart e. Smith, 44 Wisc, 213.
95 N. X. Code Civ. Pro., § 826.
96 N. Y. Executive Law (L. 1892, chap. 683), $ 74, as amended by L. 1893, chap. 248.
97 Shaw v. Williams, 87 Ind. 158. This was a complaint to enjoin sale of land on exegution on the ground that the advertisement thereof was published in a Sunday newspaper. Held, that such a publication came within the prohibition of R. s., 1881, $ 2000, as an act forbidden to be done on Sunday. Injunction should have been granted.
The fact that the last publication fell on Sunday was held not to invalidate, where it appeared that by statute, Sunday was regarded as the time between sunrise and midnight of that day, and there was no proof that the paper was actually published after sunrise. Harrison v. Wallis, 44 Misc. 492, 90 N. Y. Supp. 44.
Cleland v. Tavernier, 11 Minn. 194, holding that a first publication on Sunday was void, but as there were sufficient other publications to render it unnecessary to count that, the service was good. Following Shaw v. Williams, 87 Ind. 158; Scannmon v. City of Chicago, 40 Ill. 146.
In Ohio, where the service of process on Sunday is valid, the contrary is held. Hastings v. Columbus, 13 Wkly. L. Bul. 201 (advertisement of local improvement).
And so in California, under Code Civ. Pro., $ 134, forbidding the transae tion of judicial business” on Sundays or holidays, the ministerial act of publication of process is not forbidden. Heisen v. Smith, 138 Cal. 216, 71 Pac. Rep. 180.
One publication on a holiday does not invalidate the series. Malmgren .. Phinney, 50 Minn. 457, 18 L. R. A. 753, 52 N. W. Rep. 915.
98 Matter of Excelsior Fire Ins. Co. 16 Abb. Pr. 8.' So held, assigning as a reason that by the law at that time the contract for publication of a paper on Sunday was illegal, (since changed by statute).
In Scammon v. City of Chicago, 40 I11. 146, it was held that when the law requires a notice to be published in the corporation newspaper, its publica
21. State paper.]— Certain notices, in the State of New York, were, for many years, required to be published in the “ State paper,” or a paper to be designated annually by the Secretary of State, Comptroller, and Treasurer ;99 this requirement has been abolished and in lieu thereof the publication must be made in a newspaper published in the county where the action is triable and designated by the court or judge."
III. ORDER TO PUBLISH.
22. The order for publication.]— The order should be made by the court, unless the statute authorizes it to be made by a judge. It should designate the paper, not leaving it to the party to do so. Care should be taken to designate the newspaper accurately, as serious questions have sometimes arisen from using abbreviated or short names.o
23. The direction.]— In drawing such an order it is desirable to be explicit; and the simplest direction for this purpose, where the statute does not prescribe its terms, is that the notice shall be published a specified number of days in each of a specified number of weeks immediately preceding the week in which the day fixed occurs, such day to be at least a specified number of days after the day of first publication, exclusive of that day.
This conforms to general principles, and precludes annoying questions of regularity.
tion must appear in that particular paper. And when the paper so selected is a daily, and its proprietors also publish a Sunday paper of the same name, but which is not regarded as belonging to the regular daily issue, and delivered to its subscribers, but sold only to newsdealers and newsboys, such paper is a different and distinct one from the corporation paper, and such notice cannot be legally published in such paper. Judgment in favor of the city, in an action for special assessment, reversed.
99 L. 1854, chap. 197; L. 1885, p. 459, chap. 262.
1 Executive Law (L. 1892, chap. 683), $ 74, as amended by L. 1893, chap. 248. This supersedes $$ 3293, 3294, of the Code Civ. Pro.
2As in the case of service of summons by publication, which, under the New York statute, must be made by a judge, and cannot be made by the court. See, in all cases, the particular statute under which the order is made. The statute often permits the order to be made, either by the court or judge.
3 Diefendorff v. Heath, 6 Chan. Sent. 32 (order for publication to serve nonresident defendant). The statutes generally will be found to so provide.
4 In Waters v. Waters, 7 Misc. 519, 27 N. Y. Supp. 1004, the order directed publication in the “ Daily Transcript,” while publication was made in the
Buffalo Daily Transcript;" held, sufficient, it being established that there was no other paper of a similar name published in the city. See also Soule 1. Chase, 1 Abb. Pr. (N. S.) 48.
Publication in a different paper than the one designated is ineffectual. Brisbane v. Peabody, 3 How. Pr. 109; Otis v. Epperson, 88 Mo. 131.
IV. THE PUBLICATION. 24. Contents of notice published.]— The same rules which apply to errors and mistakes in papers personally served apply to the like papers served by publication."
25. Changes or amendments pending publication.]- If a postponement of the day of sale, return day or other day fixed by thu published notice, is determined on, pending the publication, the only proper course is either to abandon the publication commenced, and begin a fresh advertisement, having the full time to run, or to continue the publication unaltered until the day originally fixed for sale or return, and on that day, and at the proper place, take a formal adjournment to the substituted day, and then, in case of sales and the like, continue the advertisement with a notice of the adjournment appended. If a partly completed series of insertions of a publication is altered by substituting a different return day, the period before and the period after the alteration cannot be counted together to make the neces
With the notice of adjournment of a sale, and referred to in it, should be published the original notice in full."
26. edition.]— The mere fact that after publication in the inain edition of the paper sufficient to satisfy the statute, an even
6 Van Wyck r. Hardy, 4 Abb. Ct. App. Dec. 496, 39 How. Pr. 392; Kendall v. Washburn, 14 How. Pr. 380.
Drew v. Dequindre, 2 Doug. (Mich.) 93, where a notice was dated in November, and returnable on a day in November "next" instead of "inst.; error disregarded because the party could not have been misled, as the notice stated when the writ was issued, and the legal return day was in November inst. (Compare Mickel v. Hicks, 19 Kans. 578, holding notice for this terni void where it should have been for next term; and Fitch v. Pinckard, 5 Ill. 69, holding tax sale notice published in 1837, and dated 1836, not explainable, by parol, as the notice of 1837.)
Wescott v. Archer, 12 Neb. 345. Notice held defective in not being intelligible, many of the words being but little better than blanks.
For cases of misnomer, see Colton 1. Rupert, 60 Mich. 318, 27 N. W. Rep. 520; Buchanan v. Roy, 2 Ohio St. 251; Morgan v. Woods, 33 Ind. 23; Lawyer v. Langhans, 85 Ill. 138; Magoffin v. Mandaville, 28 Miss. 354; Fanning v. Krapfl, 61 Iowa, 417; s. c., 14 N. W. Rep. 727; Scorpion S. M. Co. r. Marsano, 10 Nev, 370.
6 This much is clear on general principles. In Scales v. Alvis, 12 Ala. 617, where an advertisement of property, first published on January 4th, to be sold for taxes on first Monday of February, was changed after first publication to the first Monday in April, held that the first advertisement could not be counted to make up the necessary ninety days.
7 Sanborn v. Potter, 35 Minn. 449, 29 N. W. Rep. 64 (advertisement of notice of sale in foreclosure by advertisement).
ing edițion was issued which did not contain the advertisement, does not vitiate the publication;' but where the direction was to publish in a “city paper," and the publication was for the most part in the morning edition circulated in both city and country, publication on certain days only in an evening edition, which circulated only in the country, was held not sufficient, and therefore judgment was reversed.
27.— supplement.]- Publication is not vitiated by the fact that it was in a part of the paper entitled a supplement, if such part was circulated with, and as extensively as the main sheet. 10
V. PROOF OF PUBLICATION. 28. Statutory proof.]-A distinction is to be observed be tween statutes which prescribe the only mode of proof of service, or how proof “must be made,” 11 and those which provide how it may be made, or what shall be sufficient evidence. Under statutes of the latter character any other competent evidence of the fact will serve 12
29. Who may make affidavit.]— Under a statute authorizing proof of publication to be made by the printer, publisher, foreman, or principal clerk, the affidavit must contain an allegation that the deponent was one of these.13
An affidavit by one standing in substantially the same relation as designated by the terms used in the statute is sufficient, 14 but
8 Guest v. City of Brooklyn, 9 Hun, 198 (notice of sale for assessment).
In Everson v. Johnson, 22 Hun, 115, the court held that publication in a limited 2 o'clock edition of the Brooklyn Eagle, was sufficient, although the notice was not published in the 3 and 4 o'clock editions of more general circulation. But the decision is of doubtful propriety, and publication should always be made in all the editions.
9 Haskell v. Bartlett, 34 Cal. 281.
10 Zahradnicek v. Selby, 15 Neb. 579, 19 Northwest. Rep. 645 (tax sale); approving Hamilton Co. v. Bailey, 12 Neb. 57.
11 As in the case of service of summons by publication under the New York statute. (Code Civ. Pro., § 444.)
12 Claybrook v. Wade, 7 Cold. (Tenn.) 555; Barnett v. Wolf, 70 Ill. 76; Colton 1. Rupert, 60 Mich. 318, 27 N. W. Rep. 520.
13 Steinbach v. Leese, 27 Cal. 295; Baker v. York, 65 Ark. 142; Gillet t. Needham, 37 Mich. 143; Odell v. Campbell, 9 Oreg. 298; Hill 1. Hoover, 5 Wis. 354.
See also page 14 of this volume, note 51, as to the effect of a mere recital or designation of deponent in the affidavit.
14 An affidavit by a person describing himself as the manager of a newspaper is sufficient, though the statute (Code, $ 444) required proof by the “printer, publisher, foreman or principal clerk.” Waters r. Waters, 1 Misc. 519, 27 N. Y. Supp. 1004.