Miller v. Lefever

Lake, J. This ease concerns a sale of real estate under a decree of foreclosure. A motion was made in the court below to set the sale aside, chiefly for the reason that the required thirty days’ notice thereof was not given. In the sheriff’s return to the order of sale it is certified that “ on the fifth day of March, a.d. 1879, I caused a notice to be published in the Nebraska Herald * * * that I would offer said real estate for sale,” etc. This seems to imply that the notice was actually published on-that day, which, had it been, would have answered the requirement of the statute in that particular. But this certificate cannot he taken as proof of when the notice was in fact first published. Sec. 403 [78] of the code of civil procedure provides that “ publications required by law to be made in a newspaper may be proved by affidavit of any person having knowledge of the fact, specifying the time when, and the paper in which, the publication was made,” etc. And pursuant to this provision of the statute, proof was made by the affidavit of R. 0. Fellows, then the foreman of the Herald office, from whence the publication in question was made. This affidavit shows the notice to have been first published on the sixth of March, thus giving but twenty-nine days before the day of sale, which was fixed for the fifth of April, 1879. The notice of sale not having been published thirty days before the day of sale the order of confirmation must be set aside, the sale vacated, and the sheriff directed to proceed to advertise and sell the mortgaged premises, as provided in the decree and order of the district court, and to make return to that court of his proceedings for confirmation. Judgment accordingly.