Kopmeier v. O'Neil

• Decision Date: 28 November 1879
• Parties: KOPMEIER v. O'NEIL, imp
• Court: Wisconsin Supreme Court

3 N.W. 365

47 Wis. 593

KOPMEIER v. O'NEIL, imp

Supreme Court of Wisconsin

November 28, 1879

APPEAL from the Circuit Court for Milwaukee County.

The case is thus stated by Mr. Justice TAYLOR:

"Action to foreclose a mortgage. The defendant O'Neil brings a separate appeal from the order confirming the sale made under the judgment. The record shows that final judgment in the action was rendered on the 9th of November, 1877, and that the sale under the judgment took place on the 21st of December, 1878. The sheriff's notice of sale as published bears date November 6, 1878.

"The sheriff, in his report of sale, says 'that previous to said day of sale I caused notice thereof to be publicly advertised for six weeks successively, as follows, to wit: by causing a copy of such notice to be printed once in each week, during six weeks immediately preceding said sale, in the Milwaukee Daily Sentinel,' etc.

"The foreman of the Milwaukee Daily Sentinel, in his affidavit of the publication of the notice, says 'that a notice of sale, of which a printed copy is hereto annexed, has been published in said newspaper once in each week for six weeks successively next before the day of sale mentioned therein.' The copy of the notice attached to the affidavit of said foreman bears date November 6, 1878.

"The order of confirmation of sale was duly excepted to by the appellant O'Neil, and he alleged that the sale was irregular and void: first, for the reason that it appears on the face of the proceedings that one year from the date of the judgment had not expired before the sheriff proceeded to advertise the mortgaged premises for sale; and second because the sale was in fact made before the expiration of six weeks after the expiration of one year from the date of said judgment."

Order reversed.

For the appellant, there was a brief by John A. Wall, his attorney with Samuel Howard, of counsel, and oral argument by Mr Howard.

For the respondent, there was a brief by Joshua Stark and D. G Rogers, and oral argument by Mr. Stark.

OPINION

DAVID TAYLOR, J.

In the case of Life Ins. Co. v. Neeves, 46 Wis. 147, 49 N.W. 832, this court decided that under chapter 143, Laws of 1877 (now sections 3162 to 3169, inclusive, R. S. 1878), no step can be taken for the sale of mortgaged premises after judgment until the expiration of one year from the date of the judgment, and that the term "sale," as used in said statute, was intended to embrace everything appertaining to the sale, including the publication of the notice of sale; but that any irregularity in this respect would be waived, unless an appeal was taken from the order confirming such sale.

Without discussing the question whether one year from the date of the judgment expired on the eighth day of November, 1878, so that a publication of the notice of sale would be good if made on the ninth of November, 1878, we do not think the proof, either by the sheriff's return or the affidavit of the foreman of the Sentinel, shows that it was published on the ninth day of November, 1878. In order to make the sale regular, it must have been published on that particular day or the publication would be insufficient. If made on any day earlier than the ninth of November, 1878, it would be too early, under the decision of this court above cited; and if made on any day later than that day, the notice would be short, or less than six weeks before the day of sale, and therefore void under the decision of this court in the case of Eaton v. Lyman, 33 Wis. 34. There is no clear proof that the first publication was made on the ninth day of November, 1878; and, the notice bearing date on the sixth, and, having been published in a daily paper, in the absence of proof to the contrary, it will be presumed that it was published on the sixth, especially as such presumption is not in conflict with either the sheriff's certificate or the affidavit of the printer.

The statements that the notice was published for six weeks, once in each week, next before the sale, or once in...