Rish v. Clements

21 Ga. App. 287 | Ga. Ct. App. | 1917

Harwell, J.

(After stating the foregoing facts.) It is well established that no demand on the obligor and his surety is required in order to render them liable for failure to produce, on the day of sale, the property described in the forthcoming bond, and that legal advertisement of the sale is sufficient notice to them; and proof of the advertisement will suffice to show such breach, if the property be not produced at the time and place of sale. Early v. Hampton, 15 Ga. App. 95 (3) (82 S. E. 669), and eases cited. The obligor in the forthcoming bond in the instant case insists that there was no legal advertisement of the property, and that he was not, therefore, sufficiently notified of the time and place of sale.

It is insisted by plaintiffs that § 3290 of the Civil Code of 1910, which deals with the levy and sale of mortgaged property, only requires the same to be advertised “in one or more public gazettes of this State,” and that the advertisement in this ease in one paper was a sufficient compliance with that statute. It is not necessary to construe this section of the code, and to determine whether this is the correct construction to be placed upon it. We will say this much, however: In our opinion this section should be construed with sections 6062 and 6067, which deal generally with the advertisement of all property by the sheriff. Construing these sections together, it would seem that it is not sufficient to advertise mortgaged property in any public gazette of this State, but that it must be advertised in a newspaper published at the county site of said county, if there be such, and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county. That this is the correct construction seems to be indicated by the language of Chief Justice Simmons in Coffee v. Ragsdale, 112 Ga. 709 (37 S. E. 970). This decision further indicates that all of the official advertisements of the county must be made in the same paper.' He says: “These sections of the code seem to indicate an intention on the part of the legislature to have all the official advertisements of the county made in the same paper, so that the people may know where to look for information in regard to the official business of the county. If the law were otherwise, then in counties such as Eulton, which have a large number of newspapers, and, indeed, in any county having more than one, people interested in county matters would be put to considerable trouble and expense. They could not know in what paper to look for county advertisements, and would be compelled, in order to avoid missing some of these advertisements, to subscribe for all of the papers in which legal advertisements might be published, and to examine all of these papers for such advertisements. It is far better to have the advertisements all in one paper, and the legislature seems to have contemplated that this should be done.” Coffee V. Ragsdale, supra. In our opinion the advertisement in the instant case was legal, for the following reason: There is no provision of law authorizing two newspapers having a general circulation in a county to be jointly designated as the official medium for its legal advertisements. By reference to the code and to the act of 1910 (Ga. L. 1910, p. 87), it will be noticed that nothing is said therein as to the selection of more than one newspaper as the official organ for advertisements. “No sheriff, coroner, or other officer shall change the advertising connected with his office from one paper to another, without first-giving notice of his intention to do so, in the paper in which his advertisements may have been published.” Civil Code (1910), § 6065. “No journal or newspaper published in this State shall be declared or made the official organ of. any county . . unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years. . . Provided, that in counties where no journal or newspaper has been established for two years the official organ may. be designated by the ordinary, sheriff, and clerk.” Act of 1910; Park’s Ann. Code, § 6065 (a). It will be noted that in these sections no reference is made to more than one newspaper being the official organ, and we can not write such a provision into them. That this is the proper construction is further indicated by the language used in the decisions of the Supreme Court which have touched upon this subject. In Coffee v. Ragsdale, supra, page 705, it is further said: “When the sheriff of the county selects a newspaper in which to publish his legal advertisements, that newspaper becomes, under the code, the official medium for all county advertisements . . therein.” See also page 709 of the same decision. In Braddy v. Whiteley, 113 Ga. 746 (39 S. E. 317), it is said: “The sheriff must publish such advertisements in a newspaper published at the county site of the county, if one there be, the proprietor of which, is willing to do the advertising at the rates prescribed by law.” See also Dollar v. Wind, 135 Ga. 760 (70 S. E. 335). Hence, the concurrent action of the sheriff, clerk, and ordinary of Calhoun County, in attempting to make both the Calhoun County Courier and the Edison News the official organ of said county,,and paying each of them one half of the legal rates for advertisement, was illegal and void; and the Calhoun County Courier continued to be the official organ until some other newspaper had been selected by the concurrent action of these three officers, in the method pointed out by law. No other one paper having been named by them as the official organ, there was no change as required by law. There must be one newspaper designated as the official advertising medium for the county, and until such another has been selected in the method pointed out by statute, the one already designated remains the official. organ. The advertisement in this case, having been properly inserted in the official organ of the county, was a legal- advertisement, and the property not being forthcoming at the time and place of sale, there was a breach of the bond. There was no conflict in the testimony, and the judge properly directed a verdict for the plaintiffs. The other headnotes need no elaboration.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.