Raunn v. Leach

53 Minn. 84 | Minn. | 1893

Collins, J.

In this action, brought to determine an adverse claim made to certain real estate, the complaint and answer disclosed that plaintiff’s alleged title in fee depended wholly upon the regularity of the proceedings in an action brought in 1882 to foreclose a mortgage upon the property, executed and delivered to him by the defendant, said action having been brought while the latter was a nonresident of the state, and service of the summons having been made, if at all, by publication. By demurrer to the answer the regularity and sufficiency of these foreclosure proceedings have been assailed at but one point. It stands admitted that the summons was published in a daily newspaper six times, as follows: On Tuesday, February 7th, and on the following Tuesday, February 14th; next on February 23d, and then on March 2d and 9th, each being-on Thursday; and finally on Wednesday, March 15th. It will be seen that the third publication was made nine days after the second, while the sixth came six days subsequent to the fifth. Counsel for respondent take the position that, as the first publication was upon Tuesday, each succeeding one should have been on the same day of the week, — that is, the summons should have been published at regular intervals of seven days, — and this was the view, undoubtedly, of the learned judge below when sustaining the demurrer.

The statute which must now be construed, 1878 G. S. ch. 66, § 65, provides that the summons shall be published “once in each week for six consecutive weeks,” and the sole inquiry now is as to the absolute necessity of so publishing on the same day of each of these six consecutive weeks. The counsel for respondent, in addition to Hernandez v. Creditors, 57 Cal. 333, and In re King, 5 Ben. 453, cite Dayton v. Mintzer, 22 Minn. 393, and Greenwood v. Murray, 28 Minn. 120, (9 N. W. Rep. 629,) in support of the order appealed from. In the opinion in Dayton v. Mintzer and in the syllabus to Greenwood v. Murray may be found suggestions that the statutory requirements providing for the publication of certain legal notices could only be complied with by separating the several weekly publications by intervals of exactly seven days. In neither of these cases was there a suggestion of this character, and the suggestions in reference to it were purely obiter. It follows that the question must be treated as an open one in this jurisdiction. A week is defined by all lexicographers as a period of time commencing with Sunday and ending with Saturday night, and also as a period of seven days’ duration, without reference to the time such period commences. Therefore it need not commence, necessarily, on the morning of the first day of what has been denominated as the biblical week, but on a later day. In the case at bar the summons was published for the first and second times on the third day of the biblical week, and thereafter it appeared upon either the fourth or fifth days of such week, a Sunday intervening between each publication. It was also published once in each of the six consecutive weeks commencing on the day of its first appearance in the paper, Tuesday, February 7th. We are unable to hold that the statute was not complied with. The summons appeared once in each of the six periods of seven days’ duration beginning upon and which followed consecutively the date just mentioned. We construe the statute as authorizing just such a publication. The statutory week must commence upon the day of the first publication, and there is nothing in the language used which would justify the conclusion that because the publication must be “once in each week” the day of the first publication must determine the day on which each subsequent publication is to be made, and that exactly seven days must intervene between each. The following cases warrant our conclusion, and some of them go much further than would be necessary to uphold the validity of the service in question: Ronkendorff v. Taylor, 4 Pet. 349; Steinle v. Bell, 12 Abb. Pr. (N. S.) 176; Wood v. Knapp, 100 N. Y. 109, (2 N. E. Rep. 632;) Bachelor v. Bachelor, 1 Mass. 256; State v. Yellow Jacket Silver Mining Co., 5 Nev. 415.

Order reversed.

Vanderburgh, J., absent, took no part herein.

(Opinion published 54 N. W. Rep. 1058.)

Application for reargument denied May 16, 1893.