New York Baptist Union for Ministerial Educ. v. Atwell
| Decision Date | 07 April 1893 |
| Court | Michigan Supreme Court |
| Parties | NEW YORK BAPTIST UNION FOR MINISTERIAL EDUCATION v. ATWELL et al. |
Error to circuit court, Cass county; Thomas O'Hara, Judge.
Action of ejectment by the New York Baptist Union for Ministerial Education against F. J. Atwell and another. There was a judgment for defendants, and plaintiff brings error. Affirmed.
M. L. Howell and Coy W. Hendryx, for appellant.
Harsen D. Smith and Freeman J. Atwell, for appellees.
This is ejectment. Plaintiff claimed title by virtue of a decree and sale under certain proceedings to foreclose a mortgage which had been given to it. The court below directed a verdict for defendants. The judgment must be affirmed for two reasons:
First. Defendants in the foreclosure proceedings were attempted to be brought in by publication, on the ground of nonresidence. The affidavit was made on the 15th of the month, and was not filed until the 20th, and an order of publication was made on the latter date. An order of publication must be based upon facts existing at the time the order is made. The rule that as matter of evidence a fact in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown, does not apply to the averment of a jurisdictional fact, which must appear as existing at the time the order is made. Bryan v Smith, 10 Mich. 229; McHugh v. Butler, 39 Mich 185; Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W 151.
Second. How. St. �� 6109, 6747, required at that time, before the amendment of 1885, printed notices of sale to be posted in three public places in the township where the sale is to be made, and, if made in a township other than that in which the premises are situated, then such notice must also be posted up in three public places in the township in which the premises are situated. The commissioner's report of sale recites that he caused notices of such sale to be advertised for six successive weeks, by causing printed notices thereof to be fastened up in three public places in the township of La Grange, where the sale was made, and also in three public places in the village of Dowagiac, where said premises are situated, "affidavits showing the fastening up of which notices are hereto attached, marked 'Exhibit A."' One of the affidavits annexed was that of the publisher, showing the newspaper publication, and the other...
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