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7. Immediately.]— Where the statute requires the publication to be for a specified number of weeks, immediately before the sale, it may perhaps be reasonably construed in view of the fact that it contemplates weeks beginning with Sunday and ending with Saturday to mean weeks immediately previous to the week of sale, rather than to require the day of sale immediately to follow the last week of publication. To
A requirement of publication for a specified period before a sale has usually been held, in the case of tax sales not to forbid allowing a short time to elapse between the last advertisement and the sale.71
The practice in case of sales is to repeat the advertisement on the day of sale, and, if that day is in the latter part of the fourth week, to add an intermediate insertion.
8. Notices relating to future proceedings.]— If the notice is an order to show cause, summons, or anything intended to give to the reader warning of a future act, another question becomes material to the rule of interpretation, viz., whether there is any other provision of the order or statute which serves to fix the length of notice. Thus, where a notice is required to be posted forty-two days before sale, and a copy thereof to be published for six successive weeks, it has been not unreasonably held that the posting satisfied the requirement of a certain length of notice,
Sales.—“At least once in each of the six weeks immediately preceding the sale.” Notice of execution sale of real property. N. Y. Code Civ. Pro., & 1434. And of judicial sale of real property not in a city. Id., § 1678. And of sale of real property of decedent, by order of surrogate, to pay debts, etc. Id., $ 2772.
—“At least twice in each week for three successive weeks immediately preceding the sale." Judicial sales of city property. N. Y. Code Civ. Pro., 8 1678.
Surrogates' Courts.-“ For a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks." Citation in Surrogate's Court. N. Y. Code Civ. Pro., $ 2524.
_“At least once in each of the four successive weeks immediately preceding the return day thereof." Citation in Surrogate's Court to persons entitled to share in surplus on judicial sale or foreclosure. N. Y. Code Civ. Pro., $ 2799.
Summons.—“Not less than once a week for six successive weeks.” Service of summons by publication under N. Y. Code Civ. Pro., $ 440. This is folIcwed by a provision that the service is complete upon the day of the last publication. Id., § 441.
70 Where the direction was three weeks immediately previous to the time of sale, a sale on the 28th, after last publication on the 26th, was held regular. Chan berlain v. Dempsey, 13 Abb. Pr. 421, 22 How. Pr. 356.
71 Colman v. Shattuck, 62 N. Y. 348; Pennell v. Monroe, 30 Ark. 661.
72 As in case of sheriff's sales of land on execution, and of judicial sales not in cities. N. Y. Code Civ. Pro., 88 1434, 1678.
and that a weekly publication of the copy, though not also commencing on the day when the original was posted, was sufficient publication.73
For reasons already stated, a requirement that notice shall be given of an act already done, but not limiting or appointing a time for any future act, either expressly or by implication of law, is deemed satisfied by a literal compliance, so that a publication for the number of weeks specified is sufficient, although the first and last publications are not that number of weeks
9. Premature publication.] — In notices for either purpose, the requisite publication cannot be made out by counting a day of publication prior to the earliest on which the party had a right to proceed."
10. Month.]— Month means calendar month ;76 not lunar month, as at common law.77
73 This was the ground of the ruling in Olcott v. Robinson, 21 N. Y. 150. That was ejectment by a purchaser at an execution sale. Notice of the salo was posted as required by 2 R. S. 368, $ 36, forty-two days previous to the sale, and a copy thereof published in six successive numbers of a weekly newspaper, although the first publication was less than six weeks prior to the sale. Held, sufficient, because the statute speaks of a copy of the notice posted to be published, etc., thus showing that the posting is to precede the publication. Judgment of General Term reversing judgment for plaintiff reversed. S. P., Wood v. Morehouse, 45 N. Y. 368; Wood v. Terry, 4 Lans. 80, 84.
14 Bowen v. Argall, 24 Wend. 496, where Cowen, J., very lucidly explains this rule without, however, distinguishing the other class of cases.
15 Anderson r. Coburn, 27 Wis. 558 (holding sale void because founded on service by publication which was void for commencing publication before complaint was filed).
in Pratt v. Tinkcom, 21 Minn. 142, it appeared that a mortgage fell due January 24th; notice of foreclosure by sale on March 10th was published for the first time in the edition of a weekly newspaper bearing date January 25th, five-sixths of the copies of which were actually published on January 24th. Held, that the publication in the copies issued on the 24th was premature and void, no default having then occurred; that the publication in the copies issued on the 25th was not a sufficient publication in the edition of that date; that the first legal publication of the notice was that in the next following edition - February 1st. Sale invalid for want of six weeks' notice.
76 The term “ month” in a statute, or contract, unless otherwise provided by law, or by the contract, means a calendar month and not a lunar month. N. Y. Stat. Constr. L. (L. 1892, chap. 677), $ 26. Sprague v. Norway, 31 Cal, 173; Guaranty Trust, etc., Co. r. 'Green Cove, etc., R. Co., 139 U. S. 137, 35 Law Ed. 116.
See Ryer v. Prud. Ins. Co., 185 N. Y. 6, as to effect of the Stat. Constr. Law upon computation of months.
in Lawlin v. Clay, 4 Litt. (Ky.) 283, held, that where the statute required a publication (for unknown heirs to answer) for two months, an order of publication for eight weeks is insufficient. It must be for two calendar months. Dersee therefore reversed. 77 Loring v. Halling, 15 Johns. 119.
11. Successive weeks or monihs implied.]— Even though the statute or direction prescribes only a specified number of weeks or months, it is implied that they are to be successive or consecutive weeks or months.
78 The omission of one cannot be made up by publishing in another.
12. Weekly publishing implied rather than daily. ]- Under a direction to publish for a period designated merely by months," or by weeks,so a weekly publishing is sufficient, unless the context indicates otherwise.
The fact that the paper designated is a daily, does not alone imply that daily publication was intended. 81
13. No gaps allowed.] – “Once in each week” is imperative and applies to each of several papers.82 An omission is fatal. $3
14. Variant days. ]— Under a direction to publish once (or twice) in each week, the publication need not be on corresponding days of the successive weeks.84
78 Delogney 1. Smith, 3 La. Rep. 418 (tax sale). The statutes in New York usually provide that the publication be made in each of the prescribed number of weeks. See note 69, supra.
79 Anon., 2 Cai. 385.
80 Wood r. Knapp, 100 N. Y. 109; Argall . Bowen, 24 Wend. 496, 502; Davis r. Huston, 15 Neb. 28.
Betts r. Williamsburgh, 15 Barb. 255 (statute requiring publication of street opening notice in one or more newspapers " for the space of three weeks" does not imply daily publication).
In Secor v. Pelham Manor, 6 App. Div. 236, 39 N. Y. Supp. 994, the court held, construing a requirement of a statute requiring publication for "at least fourteen days in a newspaper published ” in a village or town, that a weekly publication was sufficient.
81 Dictum in Brewer v. Springfield, 97 Mass. 152, that the publication of a notice of a street improvement in a newspaper on Tuesday and Saturday only of each of two successive weeks, sufficiently complies with a statutory direction that the same should be published " for two weeks successively," although the newspaper was one issued daily except Sundays.
82 Dieckerhoff v. Ahlborn, 2 Abb. N. C. 372, 377. 83 Gray v. Journal of Finance Pub. Co., 2 Misc. 260, 21 N. Y. Supp. 967. (Omission of publication during one week held to invalidate the service and render the newspaper liable for the additional expense incurred.) In Doheney 1. Warden, 75 App. Div. 47, 77 N. Y. Supp. 959, the court held that the omission was fatal, and was in no wise cured by an additional publication during the preceding week.
Haskell 1. Bartlett, 34 Cal. 281. In this case, an action for a street assessment, the statute required a notice of intention to make such improvements to be published daily (Sundays excepted), for ten days, in the news. paper having the county printing. It was only printed for eight out of ten consecutive days, the remaining two days not being Sundays, but days on which no issues were made by the paper. Held, that the notice by publication was insufficient and void. Judgment for plaintiff reversed on this account.
84 Market Nat. Bank 7. Pac. Nat. Bank, 89 N. Y. 397. 11 Abb. N. C. 104; Stæver's Appeal, 3 Watts & S. 154; Steinle c. Bell, 12 Abb. Pr. (N. S.) 171,
Under a direction to publish once a week for a specified number of weeks, the first insertion may be even on the last day of the first of the weeks, and the last insertion on the first day of the last of the weeks, provided that the first is the requisite number of weeks before the day fixed. 85
15. Direction to printer.] — The validity of the proceeding should be secured by explicit written directions to the printer, usually underwritten at the left hand of the bottom of the copy sent for publication, as, for instance, thus: “Publish, Dec. 31 (Saturday), and twice a week for three weeks thereafter, on Mondays and Saturdays, and on Jan. 23, 1905.” The dates of the month may be given instead, but so doing requires translation by the printer into his formula, involving an opportunity of mistake.
16. Two papers. ]— Where two papers are designated it is not necessary that the days of publication be identical.86
II. THE NEWSPAPER.
17. Selection of paper. ]— The statute or rule generally requires publication in a “newspaper,” and this is understood to inean a journal of news, including, to some extent at least current news or news of the day. A legal periodical, in pamphlet
Bachelor v. Bachelor, 1 Mass. 256 (holding that an order to give notice of application to sell real estate by publishing in a newspaper three weeks successively, is complied with by publishing in such paper in three successive weeks, although there be not an interval of a week between either the first and second or second and third publications). Raunn v. Leach, 53 Minn. 84, 54 N. W. Rep. 1058.
Ronkendorf 1. Taylor, 4 Pet. 349, 361 (holding Monday in one week and Saturday in the next, to be no irregularity. - Tax sale). Distinguished in Leach v. Burr, 188 U. S. 510, 47 Law Ed. 567.
Cass v. Bellows, 31 N. H. 501 (tax notice published Saturday, Tuesday, and Tuesday).
Wood r. Knapp, 100 N. Y. 109, 1 Centr. Rep. 170 (notice of tax sale).
In Wilson v. Scott, 29 Ohio St. 636, under section 436 of the Code, which requires notice to be published " for at least 30 days before the sale,” if in a weekly paper, it shall be sufficient to insert the same in five consecutive numbers” - the objection was that the first number containing the notice was published a day in advance of the day of the week on which the publication was usually made. Held, sufficient publication. The provision that the publication must appear on the same day in each week is for daily papers.
85 Herbert v. Smith, 6 Lans. 493.
form, cannot in any sense be termed a newspaper ;97 nor is a daily legal journal, if confined exclusively to publication of legal proceedings and not authorized by law to publish legal notices. *
The reason is that in most cases the justification of proceeding on service by publication is in the likelihood that a notice in a local journal of general circulation may reach a nonprofessional reader; and the selection of an exclusively professional journal, therefore, does not satisfy the object of the law unless it be in a reasonable sense "a newspaper.” If, however, the legal publication, though its columns be devoted largely to legal matters and court notices, receives advertisements of a general character not confined to one calling, and also publishes news and information of a general secular character, it is held to be a newspaper within the meaning of the statutes. Where the notice is required by the contract of the parties, as in the case of the foreclosure of a mortgage or trust deed, there may be less objection to the selection of a professional journal. In any case, if two papers are designated, there is great advantage in the uniform designation of a professional journal as one of them, because it soon becomes generally known that in its files are to be found every legal notice published. Where a statute sanctions publication of legal notices in a professional journal, a general direction that the notice be published in some newspaper is satis
82 Beecher v. Stevens, 25 Minn. 146 (summons served by publication in the Northwestern Reporter ”), under the Gen. Stat., chap. 65, § 13, which required publication to be “ made in a newspaper published in the county where the action is brought,” etc. Judgment thereon was reversed because that publication is not a newspaper within the meaning of the statute. It is ** devoted specially to the interests of the legal profession,” and differs materi. ally in its contents from what are commonly known as “newspapers."
88 Bergner v. Bergner (Ohio, 1886), N. Y. Daily Reg., Oct. 12, 1886, where service of summons by publication in the “Daily Court Record,” under a requirement to publish in “ a newspaper,” was heid null, because the matter contained in it was of a special and peculiar character - publication of court proceedings, etc.— while a newspaper is a publication which usually contains, among other things, what is called the general news, the current news, or the news of the day; and nothing which does not usually contain such news, and is not intended and designed for general circulation, is a newspaper.
8. P., Re Application for Charter, 11 Phila. 200.
In Kellogg v. Carrico, 47 Mo. 157, where the “St. Louis County Legal Record and Advertiser " was held to be a proper paper in which to advertise a notice under a deed of trust, which required “thirty days' public notice to be given before sale. The court say: "A paper devoted to the gathering up and dissemination of legal news among its readers is, or at least may be, a newspaper.” (Followed in Benkendorf v. Vincenz, 52 Mo. 441.)
89 Railton 1. Lander, 26 Ill. App. 655, afr’d, 126 III. 219; Maas v. Hess, 41 Hl. App. 282; Lynch v. Durfee, 24 L. R. A. 793, 101 Mich. 171.