Thompson v. Higginbotham

The opinion of the court was delivered by Brewer, J.: 1 fflS?tl0n This is a proceeding to review an order of the district court overruling a motion to set aside, and sustaining a motion to confirm, a sale of real estate. These questions are presented by counsel for plaintiff in error in his brief. First: It is insisted there was a failure to make due publication of the notice of sale. The notice was advertised in the Clay County Dispatch. An affidavit of the attorney of the defendant was filed, stating that he had examined eight or ten copies of one of the issues of said paper in which this notice was published, and that a large portion of the notice, including the description of the Pr0Perty, was illegible. On the other hand, the return of the sheriff shows that he caused “ public notice of the time and place of sale of said lands and tenements to be given, over thirty days before the day of sale thereof, by advertising in the Clay County Dispatch,” etc. The publisher of said paper attaches his affidavit to the return, stating that the notice “ was published for five weeks in said newspaper,” giving a copy of the notice, and including in his affidavit the issue of the paper referred to in the prior affidavit. A like affidavit was also afterward filed by the foreman of said paper. Upon these facts we think the court properly overruled this objection. Every one knows that it is no uncommon thing to see a few lines in a newspaper blurred, or otherwise rendered illegible. Sometimes the paper as it goes into the press is not entirely smooth; sometimes the ink fails on a portion of the type; and so there [44] may be in every issue a few copies in which any given notice is illegible. But to hold that thereby the publication has wholly failed, would not be tolerable. It would render titles resting on judicial proceedings altogether too insecure and uncertain. And it must be remembered that in order to make a publication in a newspaper valid, it is not essential that any given number of copies of a single issue should be printed. The law does not say that 100, or 500, or 1000 copies should be struck off, in order to make a valid publication. Doubtless the law contemplates the regular edition of the paper; and if the notice was omitted from all but a single copy or two, the courts might be constrained to interfere. But no such case as that is here presented. All that can be said is, that in a few copies of one issue the notice was partially blurred, and thereby rendered to that extent illegible. 2.Affidavits must state facts. [45] 3.May be made before register. [44] A second proposition is, that defendant had personal property out of which the debt could have been made. The sheriff returned, “No goods." And here again, to overthrow the return, we have only the affidavit of defendant’s attorney. This affidavit stated that at the time of the issue and levy of said execution the sheriff who made the levy and the defendant were partners in a livery stable, “in which they held themselves out as joint-owners of a large amount of personal property, one-half of which, or the interest of the defendant in said property, consisting of horses, buggies and harness, which was subject to execution, was more than sufficient to satisfy said judgment-debt as aforesaid, as affiant believes.” It also stated that affiant believed that defendant had at all times since the issue of execution personal property subject to execution sufficient to satisfy said judgment. This objection was also overruled. The affidavit proves nothing. It does not state facts, but only affiant’s belief. City of Atchison v. Bartholow, 4 Kas. 124. Even if defendant was apparently the owner of a half-interest in this stable, the sheriff, his partner, may and doubtless did know the actual facts. He may have known that defendant was only the apparent, and some one else the real owner, or that it was [45] incumbered to its full value. At any rate, no mere “ belief” of the defendant’s attorney can overthrow the 0|gcja| return 0f the officer. Again, it is objected that the affidavit of the foreman of the newspaper was taken before the register of deeds. This was sufficient. Gen. Stat., p.598. 4. confirmation by sheriffs. Finally, it is contended that at the time of the hearing of the motion it did not appear that the publication was in the issues of the paper immediately preceding the day 0f gale, and that the court improperly made a conditional order of confirmation. The facts are these: The return of the sheriff showed that he received the execution March 20th, that the sale was on May 1st, that he gave public notice over thirty days before the day of sale by advertising in the Clay County Dispatch. The affidavit of the publisher attached to the return stated that the notice was published for five weeks in said newspaper, viz., Nos. 2, 3, 4, 5. and 6, of Vol. 3,1875, but did not give the dates of issue of these several numbers. The court on examination stated that it did not distinctly appear that these five issues of the paper were the last prior to the day of sale, and made an order confirming the sale on the filing of an affidavit that the advertisement was immediately preceding the sale. Court then adjourned, and four days thereafter the required affidavit was filed. Conceding the irregularity of such a proceeding, we do not see how the defendant was prejudiced' thereby. Upon the face of the papers as they now stand, the proceedings in the sale were regular, and confirmation ought to be made. If we were to set aside the order of confirmation, as premature, it would be simply to have it entered at the succeeding term. How then is the defendant injured in his substantial rights? We see therefore nothing to justify a setting aside of the order of confirmation, and it will be sustained. Horton, C. J., and Valentine, J., concur, and hold, that upon the record, the proof of the notice of sale was sufficient at the time of the confirmation, and independently of [46] the affidavit filed, under the requirement of the court, subsequent to the hearing of the motion to confirm. Order of confirmation affirmed.