Eason v. Witcofskey

The opinion of the court was delivered by Mit. Justice McGowan. This was a case agreed upon in a controversy submitted without action. (The statement of facts should be embraced in the report of the case.) After argument, his honor, Judge Pressley, held as follows : “The question submitted, viz.: ‘Was the notice published duly advertised as required by law?’ is answered in the affirmative, and it is ordered, adjudged, and decreed, that the defendant, John P. Witcofskey, be and he is hereby required to perform specifically, the contract of sale made by William G. Eason, escheator, set forth in the case submitted, and to comply with the terms of said sale as purchaser of the land therein described, and to pay the costs of this proceeding incurred by the said William G. Eason, escheator.” From this order the defendant appeals upon the following grounds: “I. Because the Circuit Judge erred in holding that the notice in question was duly advertised as required by law'. II. Because the Circuit Judge erred in decreeing that the said defendant be required to perform specifically the contract of sale made by him, as set forth in the ‘Case’ submitted.” As we understand it, no complaint is made as to the notice of the sheriff’s sale, after the lands were declared escheated and ordered to be sold; but the objection is that the defendant is not bound as purchaser, for the reason that the clerk of the court published the notice required by section 2302 of the General Statutes for the required period of six months in the “Sunday Dispatch” of Charleston — a w'eekly newspaper issued on Sunday. The section reads as follows: “On the return of any inquest of supposed escheated lands by the escheator into the office of the clerk of the county where the lands lie, he shall thereupon cause to be advertised, in a newspaper of the county, or other nearest gazette, the first week in every month, for six months, a notice [244] containing, &c., &c., the name of the person last seized * * * and requiring his or her heirs or others claiming under him, to appear and make claim,” &c. It appears that, under the notice in the “Dispatch,” a large number of claimants, without any objection to the notice, appeared and made claim. Traverses for 32 traversers were filed, all of which were dismissed or tried and adjudged against the claims of the traversers. On January 3, 1888, process was issued by the judge of Charleston County to the said escheator, pronouncing the lands escheated and vested according to law, and directing him forthwith to sell and convey the same upon the usual notice. And the escheator accordingly advertised and sold the land, which was knocked down to the defendant. It seems to us that this was a judgment of a competent court npon a matter within its jurisdiction, and must stand until reversed; and such being the case, the sale made under it must stand, even if the judgment should be afterwards reversed. Grignon's Lessee v. Astor, 2 How., 324; Vorhees v. The Bank, 10 Pet., 475; LeConte v. Irwin, 19 S. C., 558. In the last case cited it was said: “Therefore it is a rule, nowhere disputed, that third persons purchasing at a sale made under the authority of a judg-. ment or decree, not suspended by any stay of proceedings, thereby acquire rights which no subsequent reversal of such judgment 'or decree can in any respect impair. (Freem. Judg.)” But it is said that the notice was absolutely void, as if there had been no publication at all, for the reason that it appeared in a newspaper Uissued on Sunday.” As was said in Heller v. Abercrombie (15 S. C., 112), “Whatever may be our opinion as to the moral or religious aspects of the question, the case cannot be decided upon considerations of that character. The question is strictly a legal one and must be determined upon legal principles” — citing State v. Rickets, 74 N. C., 187. It appears that actual notice was given, for different parties appeared and made claim, so that there was an adjudication. Under such circumstances, is there anything in the law which requires the court to hold that the issuing of a newspaper on Sunday morning is so clearly forbidden by law as to taint and make void everything contained in it? It is clear that the law requiring the notice to [245] be given (before cited) makes no exception as to Sunday newspapers. The words are, “a newspaper of the county or other nearest gazette.” The “Dispatch” certainly was “a newspaper of the county.” Nor do we think that the words, “The first week in every month,” must be construed so as to require such notice to be published in a daily paper every day of the week. The law must have contemplated publication in a weekly paper. The act of 1779 (5 Stat., 47) required the publication in such cases to be made in the “City Gazette,” a daily newspaper of the city of Charleston ; but in 1839 (11 Stat., 37) the law was changed so as to require the publication “in a newspaper of the district whore the lands are situated.” Many of the counties of the State have no daily newspaper, and in those no legal notice could be given, if the construction contended for were the correct one. Besides, in any view, the defect could be nothing more than an irregularity. See Maddox v. Sullivan, 2 Rich. Eq., 7; 44 A. D., 234. Section 663, Gen. Stat., declares that “No civil or criminal process shall be served on Sunday except for treason, felony, or breach of the peace.” We do not think it could be properly affirmed that the notice to the world required in proceedings of escheat is, in the proper sense, “process,” or in this case was “served” on Sunday. See Genobles v. West, 23 S. C., 168. Section 1631, Gen. Stat., declares that “No tradesman, artificer, Avorkman, laborer, or other person whatsoever, shall do or exercise any Avorldly labor, business, or work of their ordinary callings upon the Lord’s day, commonly called the Sabbath, or any part thereof (tvorks of necessity or charity only excepted); and every person, being of the age of fifteen years or upwards, offending in the premises, shall for every such offence forfeit the sum of one dollar.” And section 1632 is in these tvords : “No person or persons whatsoever shall publish, cry, show forth, or expose to sale any wares, merchandise, fruit, herbs, goods or chattels Avhatsoever upon the Lord’s day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or showed forth or exposed to sale,” &c. We cannot see that the latter section has any application to [246] the case. There is no question here as to the forfeiture of any “wares or merchandise” exposed for sale, &c. Then as to the former section, which forbids work on Sunday, upon pain of the forfeiture — a personal money penalty — is that not the end of the law as to the work done? Nothing is said as to the effect upon the work, which cannot, like a contract, be declared void. “A penalty or penal sum is a sum of money payable as an equivalent for an injury.” (22. Sf L. Law Diet., “Penalty.”) But if we assume that the work done is also affected by the fact that it is forbidden under penalty, what work was done here on Sunday ? There is nothing in the record which shows that any of the printing or getting up of the paper was done on Sunday. The “Case” states that “upon the return of said inquest the clerk caused to be advertised in a newspaper of the said county called the ‘Sunday Dispatch,’ the same being a weekly newspaper issued on Sunday.” We cannot therefore assume that any of the work on the paper was done on Sunday, except the simple “issuing” of it — that is to say, the distribution of it among the subscribers who had previously contracted to have it delivered — an operation not unlike that of distributing letters from the mail. We cannot hold that that alone was sufficient to make void every issue of the paper, and thereby annulling and striking out every notice published in it; especially after the judgment of escheat had been rendered, which necessarily recognized the publication. Mr. Freeman, on Judgments, at section 126, says: “There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. * * * In case of an attempted service of process, the presumption exists that the court considered and determined the question whether the acts done were sufficient or insufficient. If so, the conclusions reached by the court, being derived from hearing and deliberating upon a matter which, by law, it was authorized to hear and decide, although erroneous, are not void. * * * Where there has been an insufficient publication, or an entire failure to publish, the proceedings are not so invalidated as to be made void.” See many authorities in note of Freeman, and Darby Co. v. Shannon, 19 S. C., 637. The case of Shaw v. Williams (87 Ind., 158; 44 Am. Rep., 756) bears no analogy to this. That was a proceeding by a [247] defendant in execution to enjoin the sale of his lands under an advertisement by the sheriff in a Sunday newspaper. The notice claimed to be invalid was after and not before the judgment as here. Indeed, it may be well doubted whether the purchaser at sheriff’s sale — a stranger to the record — could be heard at all as to the alleged insufficiency of a notice lying back of the judgment. As was said by Mr. Justice Mclver in the case of Darby & Co. v. Shannon, supra: “It seems to me that the judgment of Cole & Co. was not open to the attack of the plaintiffs, inasmuch as the only person who could take advantage of the alleged insufficient service of the summons was the defendant [in that judgment] Shannon.” The judgment of this court is, that the judgment of the Circuit Court be affirmed.