Matthews v. Arthur

• Decision Date: 10 February 1900
• Docket Number: 11,447
• Citation: 59 P. 1067,61 Kan. 455
• Parties: MARTHA A. MATTHEWS et al. v. JOHN ARTHUR et al
• Court: Kansas Supreme Court

59 P. 1067

61 Kan. 455

MARTHA A. MATTHEWS et al. v. JOHN ARTHUR et al

No. 11,447

Supreme Court of Kansas

February 10, 1900

Decided January, 1900.

Error from Wyandotte district court; H. L. ALDEN, judge.

Judgment affirmed.

Lathrop Morrow, Fox & Moore, for plaintiffs in error.

Henderson Webster & Gilmer, and C. F. Hutchings, for defendants in error.

DOSTER C. J. SMITH, J., not sitting, having been of counsel.

OPINION

DOSTER, C. J.:

This is a proceeding in error from an order of the court below overruling a motion to vacate an order confirming a sale of real estate and likewise to set aside the sale on which the order of confirmation was based. The ground of the motion to vacate and set aside was insufficiency of time of publication of the sale notice. The publication was made in a weekly paper. The first issue of the paper was Friday, April 16, the last issue Friday, May 14. The sale was advertised for Monday, May 17, and it occurred on that day.

Section 464, chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4720) reads: "Lands and tenements taken on execution shall not be sold until the officer cause public notice of the time and place of sale to be given for least thirty days before the day of sale." The statutory rule for the computation of time reads as follows: "The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday it shall be excluded." (Gen. Stat. 1897, ch. 95, § 562; Gen. Stat. 1899, § 5026.) It will be observed that, excluding the 16th day of April, the day of the first publication of the sale notice, there remained fourteen days in April, and excluding the 17th day of May, the day of the sale, the publication extended over a period of thirty days.

Counsel for plaintiff in error quite vigorously attack the former decisions of this court construing the statute first quoted and holding sale notices sufficient which set the time for the sale on the thirtieth day after and inclusive of the first publication. (Northrop v. Cooper, 23 Kan. 432.) Such construction, they say, is in contravention of the statute first quoted, which requires the first publication of sale notices to be "at least thirty days before the day of sale," and in contravention of the statute last quoted which requires the first day of "the time within which an act is to be done" to be excluded. The words, "at least thirty days," they argue, mean thirty full, clear days exclusive of the day of the first publication of the notice, and also exclusive of the sale day. However, we are not called upon to reconsider the correctness of the rule of construction and time computation heretofore applied in Northrop v. Cooper, supra, and other cases. In this instance there were thirty full, clear days intervening between and exclusive of the day of the first publication of the sale notice and the day of sale.

But counsel for plaintiff in error, having, as they believe shown the rule of construction and time computation hitherto applied in such cases to be incorrect, next argue that the last...