Curry v. State ex rel. Rhine

Elliott, C. J. The appellant entered a special appearance and moved to quash “ the proof of publication.” Assuming that the motion properly presents the proposition argued by counsel, which is that the notice was not published the requisite length of time, we shall consider and decide the question argued, but in doing this we do not mean to be understood as deciding that it is well presented. The affidavit of the publisher of the newspaper in which the notice was published states that “ the notice was duly published in said paper for three weeks consecutively, the first of which publications was on the 11th day of September, 1890, and the last on the 25th day of September, 1890.” The statement of the publisher that the notice was published three weeks consecutively, repels the assumption that there were but two insertions of the notice in the newspaper. The reasonable and fair construction of the affidavit is that the first publication was on the day first named, the third publication on the day last named, and the second on a day intervening between the first and last dates named in the affidavit. The decisions require this construction and sustain the sufficiency of the notice. Security Co., etc., v. Arbuckle, 123 Ind. 518; Horn v. Indianapolis Nat’l Bank, 125 Ind. 381. The other questions in the case are fully disposed of by the decision in the case of Racer v. State, etc., ante, p. 393. Judgment affirmed.’