McCurdy v. Baker , 11 Kan. 111 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

The questions in this case arise upon the construction of § 457 of the civil code. Is notice by posting upon the court-house door, and in five other public places in the county, required in all cases of sale, or only in those cases where there is no newspaper printed in the county? We think the section may fairly be construed to sustain either view, and it is difficult to suggest reasons why either should be preferred. We shall sustain the latter, and hold that notice by posting is necessary only where there is no newspaper printed in the county. We do this because the language of the section as clearly sustains this as the other, and because thus'having been accepted in some parts of the state as correct, and sales made in accordance therewith, the opposite construction might "cast a cloud upon many titles.

Is one insertion of the notice in the paper sufficient, or must it be continued through the successive issues of the paper up to the day of the sale? The language is, “public notice of the time and place of sale, for at least thirty days before the day of sale, by advertisement in some newspaper.” The preposition “for,” as used in the'language quoted, requires, as it seems to us, an insertion in each successive issue of the paper up to the day of sale, the first one being more than thirty days prior thereto. In the authority cited by counsel the language was “at least sixty days,” the preposition “for” being omitted. -The difference is obvious. This case is here upon cross petitions in error to reverse the ruling of the district court upon a motion to retax costs.- As our views upon both questions differ from those-of the district court, the case will be remanded with instructions to decide the motion in accordance with the views herein expressed. The costs in this court will be divided.

All the Justices concurring.