Wilson v. Petzold

[877] Opinion op the court by JUD.GiB NUNN Afpirjiing. This action was instituted in the Jefferson Circuit Court in May, 1902, by the appellee, Herman Petzold, to enforce a mortgage on real estate in the city of Louisville executed by the appellants E. W. Wilson and wife. Final judgment was entered October 25, 1902, directing a sale of the mortgaged property to satisfy the debt, and requiring notice of the sale to be given by printed handbills, and also by advertisements in the Louisville Evening Times for three consecutive days next preceding the day of sale, in compliance with the act of March 24, 1902 (Acts 1902, p. 213, c. 92). The advertisement was properly made by handbills, and was also advertised in the Louisville Evening Times on Thursday, Friday, and Saturday, November 6th, 7th, and Sth; and the sale was made November 10, 1902, thus excluding Sunday. One of the appellants, Lula Bently, became the purchaser at the sale, but refused to comply, assigning as grounds therefor, first, that the sale .was not advertised for three days next preceding the day of sale,, as required by law; s'econd, that certain special tax liens existed against the property sold, the holders of which were not made parties defendant. The court, upon due notice, summarily ascertained these special taxes and liens under the statute (Ky. St., 1899, sec. 989), overruled the exceptions, and confirmed the sale. The only question to be determined by the court upon this appeal is whether or not the publication of this advertisement of sale in the Louisville Evening Times on Thursday, Friday, and Saturday next preceding the'day of sale, on Monday, was in compliance with the requirements of the statutes. It is contended by the appellants that it was not a compliance; that the advertisement should have been [878] in a Sunday issue, to have met the requirements, and the Louisville Evening Times, by reason of its not being published on Sunday, was and is not a daily paper. We are of the opinion that it was and is a daily paper, within the meaning of the statutes. It- is agreed that it was issued every day of the week except Sunday. If this be true, it was a daily newspaper, within the meaning of the statutes, which employs the term “daily newspaper” in contradistinction to the term “weekly,” “semiweekly,” or “triweekly” newspaper. The term was and is to be used in its usual and proper sense, and, in this sense, it is clear that a paper which according to its usual custom is published every day of the week, except one, is a daily paper. Otherwise a paper which is published every day except Sunday would not be a daily newspaper. The term in its proper sense, does not admit of this construction. The Legislature, in the enactment of this statute, certainly did not mean that no paper was a daily paper except those published seven days in the week. See Richardson v. Tobin, 45 Cal., 30, and Ormsby v. City of Louisville, 79 Ky., 201, 2 R., 297. In our opinion, the publication in the Times of this sale on the last three secular days next preceding the day of sale was a sufficient compliance with the act in question, and the sale was legal in all respects. Having arrived at this conclusion, we deem it unnecessary to consider the many other questions raised and discussed by the parties in their briefs. Wherefore the judgment of the lower court is affirmed.