Bigalke v. Bigalke

10 Ohio Cir. Dec. 394

• Court: Cuyahoga Circuit Court
• Decided: December 21, 1899
• Status: Published

Opinion

Caldwell, J.

This was a proceeding in the court below and commenced there, pertaining to land. One of the defendants, one of the persons made a defendant below, was brought in by advertisement, and other parties in the case than that one thus brought in, by various motions and the proper proceedings to reach the end sought, undertook to have the service set aside. The service was by publication and made in The Cleveland Daily Record. And the claim there and the claim here made, and the only claim made, is that The Cleveland Daily Record is not a paper that has the requisites necessary to make a legal advertisement.

This is a matter of considerable interest to the members of the bar, and we have given it quite extensive attention.

The court below found in its decree, that the advertisement was properly made and that the paper was a proper instrument in which to make the advertisement under the statute.

The statute in question is sec. 5050, Rev. Stat. That part of it that .pertains to this question is this: “The publication must be made for six consecutive weeks, in a newspaper printed in the county where the petition is filed.”

The first inquiry in determining this is, what is meant there by "“newspaper.”

Wade on the Raw of Notices, sec. 1066: “What is a newspaper: In order to fulfill the terms of the law, the notice must be directed, by the court or officer, to be inserted, for the statutory time, in some paper printed and circulated for the dissemination of news; but it is not essential that, to answer the description, the paper shall be devoted to the dissemination of news of a general character. It may, with equal propriety, be published in a paper devoted exclusively to the discussion of religious, legal, commercial or scientific topics, and the diffusion of knowledge touching special matters within its limited sphere, as in a public journal, the columns of which are open to news of a general ■character. It may be a religious newspaper, a commercial newspaper, -a legal newspaper, ora scientific newspaper, or a political newspaper.”

The Cleveland Daily Record is a newspaper that is devoted primarily perhaps, and principally, to the proceedings in the courts and in the recorder’s office and in the various county and city offices in the county in which it is published. To determine whether or not it complies with this definition, which is a fair one under the authorities which -are cited, we have examined, in taking the issue that is made, a part of the bill of exceptions. We find there articles on religion; we find the political news of the day; we find notices of and comments upon conventions; we find marine news, and the news of fires, news pertaining to robberies, news pertaining to the progress of the war in the Philippines, and almost if not quite, a column of miscellaneous news, and notices of all sales and mortgages made and deeds recorded and all assignments made. And then there are a large number of advertisements of all kinds .and classes of business. And then it contains the decisions of the .Supreme and other courts, both federal and state courts, and the assignments as made for trial in the different court rooms, given as the court proceedings; the opinions of the Supreme Courts and other courts, quite in full; and then there are contributions of a literary character, and contributions of poetry, which certainly ought to go far towards making it a newspaper. And it contains the time-table, notifying parties of the time of the arrival and departure of trains upon the different railroads in the city of Cleveland; and also contains many legal notices, and, perhaps -quite as important, the notices of attorneys, of where their shingles are found, and the city news generally.

And the question is, whether this is within the meaning I have read from Wade on the Daw of Notice.

No one paper published in any county in the state, perhaps, contains all the news or makes any pretense of containing all the news. And if we take the different newspapers we will find certain portions of news that are very important, that are entirely omitted from such papers. If a paper is a political paper, its readers generally are politicians of its faith, many of them; and the political news is selected with the intention •and purpose of giving to that class of readers the news that will be pleasing to them, and the news of other political parties is almost entirely •omitted.

Will C. Gunther, for plaintiff in error. Henderson & Quail, for defendant in error.

So it will be seen at once that these papers differ in degree from the paper in which this notice was made, more than in character.

A paper may be devoted primarily to religion and to religious views and yet may give general news of the day. That makes it a newspaper.

Some papers printed in a city like this contain but a small amount of news and that in very condensed form; and that necessarily from the size of the publication and the size of the issue, but that necessarily makes it none the less a newspaper, from that fact.

And the court below, that had this to pass upon as well as the law, has found, as a matter of fact, that this is a newspaper. And, perhaps, so far as that question is concerned we ought not to disturb the judgment of the court below, unless we believe the court to be utterly wrong, and we do not think so. We find upon examining the authorities that such papers are published in nearly all pities of any considerable size in this country; and the state courts have been called upon to pass upon the question of legality of notice in those papers, such as the case now before us; and the weight of authority, almost the entire weight of authority I may say, is that it is a legal publication, and the statutes in many of those states require, by express terms, that it shall not only be a newspaper, but a newspaper of general circulation.

This paper shows in this case, the character of the news it contains, its contents generally and its circulation — its circulation in the city, county and outside of the county, and, as I say, the decisions in Illinois, Missouri, Michigan, Indiana and a number of other states that we have noticed, and in Minnesota, are ail holding that a publication of this kind in such a paper meets the requirements of their statutes.

And we affirm the decision of the court below.