Lawson v. Gibson

• Decision Date: 15 September 1885
• Citation: 24 N.W. 447,18 Neb. 137
• Parties: ROBERT P. LAWSON, APPELLANT, v. JENNETTE F. GIBSON ET AL., APPELLEES
• Court: Nebraska Supreme Court

24 N.W. 447

18 Neb. 137

ROBERT P. LAWSON, APPELLANT, v. JENNETTE F. GIBSON ET AL., APPELLEES

Supreme Court of Nebraska

September 15, 1885

APPEAL from order confirming sale of real estate in the district court of Lancaster county. POUND, J., presiding.

REVERSED AND REMANDED.

J. H Foxworthy, for appellant.

Ricketts & Wilson, for appellees.

OPINION

MAXWELL, J.

This action was commenced in the district court of Lancaster county in 1882, and a decree of foreclosure and sale rendered in favor of the defendant and against certain real estate held by the plaintiff on a B. & M. land contract. The amount of the decree was $ 777.35. In October, 1884, an order of sale was duly issued on said decree and the premises appraised at the sum of $ 1,400, the total liens and incumbrances being $ 470, which, deducted from the gross amount, made the net value as found by the appraisers to be the sum of $ 950. The mortgaged premises were thereupon advertised for sale on the 24th of October, 1884, in the State Journal, of Lincoln, that the sale would take place on the 26th day of November of that year. But one publication was made. Objections were made to the confirmation of the sale upon this ground, which were overruled and the sale confirmed. This is now assigned for error.

Sec 497 of the code provides that, "Lands and tenements taken in execution shall not be sold until the officer causes 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, and by putting up an advertisement on the court-house door, and in five other public places in the county, two of which shall be in the precinct where such lands lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable."

It is claimed by the appellee that one notice, published at least thirty days before the day of sale, is a full compliance with the statute, and Craig v. Fox, 16 Ohio 563, is cited in support of that position. In that case the notice was published in the Cincinnati Daily Enquirer of April 15, and in the weekly of the 19th and 26th of April, and the 3d and 10th of May. The sale took place May 16 of the same year (1843). The Daily Enquirer circulated almost entirely in the city, and the weekly in the county adjacent, and were read by different sets of subscribers. Burchard, Ch. J., in delivering the opinion of the court, states that the notice was insufficient, because it failed to state the time and place of sale. After quoting the statute, he says (page 566): "It is urged that these words require consecutive insertions of the notice during the period of thirty days. This construction of the statute has been practiced upon very generally in many parts of the state. * * * I look, then, to the statute in order to gather the meaning and intention of the legislature. Its words will be answered, 'by one publication inserted in a newspaper thirty days before the day of sale,'" etc. This view, he states, was concurred in by another member of the court, which at that time consisted of four judges. Thus it will be seen that the question was not before the court, and the alleged decision but an expression of two of the judges. The doctrine, that in adopting the statute of another state we adopted the construction placed upon it by its highest court, therefore, need not be considered.

The question here involved was before the supreme court of Kansas in Whitaker v. Beach, 12 Kan. 492, and it was held that the notice must be first published at least thirty days before the day of sale, and continued in each successive issue of the paper up to the day of sale. The construction given by that court to the word "for" as equivalent to "during," in connection with the words,...