Savings and Loan Society v. Thompson

By the Court, Sawyer, J.: The only question in this case is, whether a summons was published “ once a week,” not less than “ three months,” within the meaning of the provisions of the thirty-first section of the Practice Act. It was published on the 10th, 15th, 22d and 29th of January; the 5th, 12th, 19th and 26th of February ; the 5th, 12th, 19th and 26th of March, and the 2d and 9th of April, 1865, the first publication being on the 10th of January and the last on the 9th of April. The month contemplated by the statute is a calendar, not a lunar month. (Sprague v. Norway, 31 Cal. 173.) This is conceded. The five hundred thirtieth section of the Practice Act has no application. There is no time “ within which an' act is to be done,” within the meaning of that section. The defendant being a non-resident of the State, the summons must be published “ at least once a week,” and the publication “ shall not be less than three months.” From the 10th of January to the 9th of April, inclusive, are three full calendar months. We can no more include the 9th of January, or the 10th of April, in the intervening three calendar months, than we can get two Sundays or two Saturdays into one week. The publication was made on the 10th of January and on the 9th of April, and once in every intervening week, making in all a publication in each of fourteen consecutive weeks. The period of publication, then, covered the entire period of three calendar months. The publication, therefore, could not be “ less than three months.” If the language of the statute had been, that “ the summons shall be published daily, and the publication shall not be less than one month,” and a summons had been published on every day in the month of January, for example, we apprehend that no one would contend that it had not been published a full*month. The cases cited are not upon precisely similar provisions, and are not in point. Neither does the point decided in any one of them sustain the precise view maintained by appellant. The [351] cases arise upon notices of Sheriff’s sales, notices in insolvent cases, etc., under statutory provisions requiring notice to be published “ weekly for six weeks,” “ three months,” and the like, as the case may be, before some act to be done on a designated day of which notice is given. In no one of the cases was it held that the “six weeks” or “three months ” must elapse between the first and last publication, or that the notice had not been published a sufficient number of times, or to a sufficiently late day. No such question was in any of the cases. The difficulty was, not that the notice had not been published the full number of times, or to a sufficiently late day, but that sufficient time had not elapsed between the first publication and the time appointed for doing the thing of which notice was given. Take for example the case of Early v. Doe, 16 How. U. S. S. Ct. 611, which was a tax sale. The statute required notice of the sale to be published “ once in each week for at least twelve successive weeks.” The day of sale appointed by the notice was the 15th of November, 1848. The first and last publication were on the 26th of August and the 15th of November—the day of sale; and the Court in their calculation include both days. From the 26th of August to the day of sale and last publication—the 15th of November— there were but eighty-two days—not twelve full weeks, or eighty-four days. Now the difficulty was, as stated by Mr. Justice Nelson, not that the notice had not been published a sufficient number of times, or continued to a sufficiently late period; but that twelve full weeks notice had not been given —that is, twelve weeks from the first publication to the day appointed for the sale, which happened in this instance to be the last day of publication also. (Ib. 615-16.) But suppose the day appointed for the sale had been the 18th of November, instead of the 15th, and the publication had been precisely the same as it was—the last falling on the 15th, and that it was in the same week with the 18th—there can be no doubt that the sale would have been upheld. There would, then, clearly have been twelve full weeks notice from the first publication to the day of sale, and the notice would have been [352] published once in each week embraced in that period; yet there would have been no more time between the first and last publication than there was in the case as it is presented. That such would have been the ruling in the case supposed is evident from the reasoning in the case cited and the decision of the same Court construing the words “ once a week,” in Ronkendorff v. Taylor's Lessees, 4 Pet. 361. The questions presented in the other cases cited by the respective counsel are similar to that in Early v. Doe. They are: Sheldon v. Wright, 7 Barb. 45; same case affirmed on appeal, 5 N. Y. 517 ; Olcott v. Robinson, 20 Barb. 149 ; same case reversed in 21 N. Y. 153; Chamberlain v. Dempsey, 13 Abb. 422; Bachelor v. Bachelor, 1 Mass. 256; Bunce v. Reed, 16 Barb. 351; People v. Gray, 10 Abb. 469; Anonymous, 1 Wend. 90. These cases are in conflict upon the points to which they are cited, and the later cases in the Court of Appeals appear to be against appellant. But none of the points decided are inconsistent with the views we have expressed in this case, and it is unnecessary now to determine which is right. In these cases the Judges take care to confine their decision to the point that the full time required by statute must intervene between the first publication of notice and the day appointed for the performance of the act designated in the notice. We think that the summons had been published for three calendar months at the close of the 9th day of April, and that the first day of the forty within which the defendant was required to answer was on the 10th of April. But even if the three months for publication did not expire till the 10th of April, there was no necessity for another publication. The 10th was in the same, week with the 9th, and the summons had been published in that week. It had been published once in every one of the weeks that could by any possibility, in whole or in part, be brought into the three calendar months. This is sufficient under the decision in Ronkendorff v. Taylor's Lessees, 4 Pet. 361, and we know of no decision to the contrary. The only difference it could make would be, that the forty days within which the defendant is required to answer [353] would not commence to run till the 11th, instead of the 10th, for then the service would not be complete till the expiration of the 10th. The summons does not arbitrarily fix the day for answering, but requires the defendant to answer within a given number of days after the service of summons. (Practice Act, Secs. 24 and 25.) The day for the defendant to act is left open by the summons, depending upon the time when the service is made, or is complete. It is a matter of no consequence, then, whether the service was complete on the expiration of the 9th or 10th of April, for the time within which to answer did not begin to run till service was complete. The judgment in the case was not rendered till the 26th of December, 1865, long after the time for answering expired, whether it commenced to run on the 10th or 11th. When the default was entered does not appear, and the presumption is, nothing to the contrary appearing, that it was not entered till due. On either hypothesis, therefore, there ivas a valid service. Some of the publications, including the last, were on Sunday—the paper in which publication was made being regularly issued on Sundays as well as on week days. We do not think this fact vitiates the service on the ground that, under our statute, Sunday is dies non. The service is not actual and is not made by a single act. It consists of a series of acts running through a long period of time, and the specific acts required by the statute have been performed according to both the letter and spirit of its provisions. The judgment is affirmed. Hr. Justice Rhodes did not express any opinion.