Collins v. Smith

• Decision Date: 13 March 1883
• Citation: 15 N.W. 192,57 Wis. 284
• Parties: COLLINS v. SMITH AND ANOTHER.
• Court: Wisconsin Supreme Court

57 Wis. 284

15 N.W. 192

COLLINS

v.SMITH AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Outagamie county.

W. J. Allen, for respondent, A. L. Collins.

James Freeman, for appellants, F. H. Smith and another.

ORTON, J.

This is an appeal from the order of the circuit court overruling the motion of the defendants to set aside and vacate the execution and the sale thereon of both the personal and real property.

1. The only objection taken to the execution was that it was issued by Silas Bullard, Esq., the original attorney of record in the cause, by the plaintiff signing his name thereto without his authority. The plaintiff states in his affidavit on this motion that he had general authority from said Bullard to sign his name to any papers in the case when necessary, and this is not disputed by said Bullard in his affidavit. He states only that he never authorized or empowered any person to sign his name to said execution. He denies the special authority to sign this execution, but does not deny the general authority of the plaintiff to sign his name, when necessary, to any papers in the case. This objection is, therefore, not sustained by the fact.

2. The objection to the sale of the personal property was that notices thereof were not posted as the law required. There was proof on the motion that the notices were duly and properly posted.

3. Another objection was made to the sale of the personal property which also applies to the sale of the real estate, that it was not sold until after the sale of the real estate. It is sufficient to say as to this objection that there was no proof by the record or otherwise that the personal property was not first sold.

The order, therefore, so far as it overrules the motion to set aside the execution and the sale of the personal property, is affirmed.

4. As to the sale of the real estate only one objection need be considered, and that is, the insufficiency of the publication of the notice of sale, as the sale was for that reason clearly irregular and void. The first publication was on the twenty-fourth day of June, and the last on the twenty-ninth day of July, and the sale took place on the second day of August, 1881. This was less than six full weeks' publication before the sale, as the statute requires. Whatever may be the rule in the state of New York and elsewhere, it must be regarded as settled in this state, by the decision of this court, that the statute requires the publication to be for the full six successive weeks before the sale, and that six weekly publications are not sufficient unless for such full time.

In Herrick v. Graves, 16 Wis. 157, this court held, sub silentio, that the publication of notice of an execution sale, when the first publication was on the ninth day of June and the last on the twenty-first day of July, was sufficient, because the notice was published for 42 days, casting out the first day or the last.

The statute (section 2993, Rev. St.) requires the publication of the notice of sale of real estate on execution to be made “six weeks successively, once in each week before the sale.” Section 3168, Rev. St., provides that notices of sale or foreclosure shall be the same as on sales of real estate upon execution, unless otherwise directed. In Kopmeier v. O'Neil, 47 Wis. 593, [[S. C. 3 N. W. REP. 365,] on a judgment of foreclosure, where there was no direction as to the notice different from that of the statute, it was held that the publication of the notice of sale, if the first publication was made later than the ninth day of November, and the sale was on the twenty-first day of December, was insufficient, and that the statute required full six weeks' publication before the day of sale. This decision would seem to be authoritative and to rule this case. The language of section 87, c. 15, Rev. St....