Hackett v. Lathrop & Smith

Opinion by Holt, C.: The plaintiffs in error complain of the confirmation of the sale of the land, stating that the no [663] tice of the sale was not published the time required by law before the day the land was sold. The statute provides that the publication shall be for at least thirty days before the day of sale. The first publication being upon the 23d day of June, and the sale not being made until the 23d day of July, shows that it was published the time required by statute, the day of the first publication being included within the required thirty days. (Northrop v. Cooper, 23 Kas. 432.) The court allowed the amendment to be made to the proof of service by publication, and refused to vacate the judgment, and found from the testimony that the first publication was made upon the 7th day of October, 1880. It had abundant evidence to support such finding, and it is conclusive in this court. The plaintiffs in error contend that even if this should be true, the amendment ought not to have been made, because it was not in furtherance of justice. If the first notice was published upon the 7th day of October, sufficient time elapsed before the date of the rendition of the judgment to give the court jurisdiction of the subject-matter. If it was first published upon the 14th day of October, then the notice wás insufficient under the law. • Ordinarily all amendments of the proof of publication should be allowed, in order to show the real facts in the case. Plaintiffs in error contend, however, in this case that because the attorney of Margaret A. Hackett, one of the defendants, who was also a party in another action, had a talk with Lathrop with regard to giving her notice, if this action should be brought, and his failure to give such notice on his part, it would not be in the furtherance of justice to allow plaintiffs to make the amendment suggested. The evidence introduced, is that of the attorney of Margaret A. Hackett, and giving it the strongest construction in favor of plaintiffs in error, it appears that by a conversation he had with Lathrop, he was left with the impression that Lathrop would notify him when Lathrop & Smith brought their action against the Hacketts upon the note and mortgage in question. He further states that Lathrop at no time refused to give such notice. In his [664] affidavit there was no attempt to set forth what Lathrop said, in the conversation between them, and certainly nothing tending to show that Lathrop misled or attempted to mislead him. We do not see that this statement of the facts would take the case out of the ordinary rule prescribed in such cases. It was not the duty of Lathrop to give such notice. It was not in evidence that he promised to, nor did refuse to give it, and we think it would have been as easy for the attorney for Mrs. Hackett to have asked Lathrop in regard to the action, as it would have been for Lathrop to hunt up her attorney to notify him of a matter about which it was his own special business to inquire. We see no error in this proceeding, and hence we recommend that the judgment of the court below be affirmed. By the Court: It is so ordered. All the Justices concurring.