Hanscom v. Meyer

• Decision Date: 21 March 1900
• Parties: HANSCOM v. MEYER ET AL.
• Court: Nebraska Supreme Court

60 Neb. 68

82 N.W. 114

HANSCOM

v.MEYER ET AL.

Supreme Court of Nebraska.

March 21, 1900.

Syllabus by the Court.

1. Evidence examined, and found that the Omaha Mercury is a weekly publication, circulating among various classes of people within the county and state; that its printed matter consists principally of legal notices and information regarding the courts, and of legal matters in general, and also advertising of a miscellaneous character, literature of a general kind, and a limited amount of general news of current events. Held, that such publication is a newspaper, within the meaning of section 497 of the Code of Civil Procedure; that the fact that it also makes a specialty of some particular class of business, and conveys intelligence of particular interest to those engaged in such business, will not thereby deprive it of its general classification as a newspaper, within the meaning of the statute.

2. Held, also, that the principal distinguishing feature of a newspaper, in contemplation of the statute, is that it be a publication appearing at regular, or almost regular, intervals, at short periods of time, as daily or weekly, usually in sheet form, and containing news; that is, reports of happenings of recent occurrences of a varied character, such as political, social, moral, religious, and other subjects of a similar nature, local or foreign, intended for the information of the general reader.

Appeal from district court, Douglas county; Keysor, Judge.

Foreclosure suit by Andrew J. Hanscom against Max Meyer and others. Decree for plaintiff, and from an order overruling objections to confirmation of the sale thereunder, defendants appeal. Affirmed.Chas. S. Elgutter, for appellants.

Geo. E. Pritchett, for appellee.

HOLCOMB, J.

In proceedings of foreclosure of a real-estate mortgage in the district court of Douglas county, on an application for confirmation of a sale of real estate made in said action, the defendants (appellants) objected thereto, and moved to set aside the sale, on the ground that notice of sale by publication in the Omaha Mercury was insufficient; alleging that that publication was not a newspaper, as provided for by section 497 of the Code of Civil Procedure. The objection was overruled, and by appeal the case is brought to this court.

The section referred to provides as follows: “Lands and tenements taken in execution shall not be sold until the officer cause public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or in case no newspaper be printed in the county, in some newspaper in general circulation therein. * * * All sales made without such advertisement shall be set aside on motion by the court to which the execution is returnable.” The point in issue is whether the Omaha Mercury is a newspaper, within the meaning of the section quoted. In the affidavit in support of the motion to set aside it is said: “That said Omaha Mercury, published weekly at Omaha, Nebraska, is a class paper, devoted especially to the interests of the lawyers of Douglas county, Nebraska; that said Omaha Mercury is a paper which is confined to the particular trade, calling, or business, of the lawyers of Omaha, and has a limited circulation, and is not a newspaper, as by law provided and required.” A copy of one issue of the paper is made an exhibit, which is said to be “a fair sample of said publication.” The proprietor of the publication challenged makes affidavit that “he is the owner and proprietor of the Omaha Mercury, a newspaper printed and circulated every Friday in the city of Omaha, Douglas county, Nebraska, and elsewhere. * * * This affiant says that it is not true that said Omaha Mercury is a class paper, or that it is confined to the interests of the lawyers of Omaha or Douglas county; that said Omaha Mercury, then known as the ‘Omaha Watchman,’ was established in the year 1870, and has been published weekly ever since said date; that said paper contains each week news of a general character, such as is to be found in the average weekly paper published in Nebraska; that of late years it has made a specialty of the news of the courts and of legal matters in general, but that it is not true that it is devoted to the legal profession in any sense which would render it a ‘class publication’; that said paper has a large and valuable subscription list, and that its said subscribers are of all classes and professions; that said newspaper has a wide circulation in Douglas county and the state of Nebraska, but that it is also taken and paid for by various classes of people in a great number of the states of the Union; that for the past twenty years it has been the custom of lawyers and others to publish legal notices in said paper,--so much so that the people of Douglas county and the state of Nebraska, and throughout the entire United States, look first in its columns for legal advertisements in which they are interested; that it has published in the past, and still continues to publish, the greater percentage of legal notices in Douglas county, including orders to be...