Cooke v. Tallman

40 Iowa 133

• Court: Supreme Court of Iowa
• Decided: December 16, 1874
• Status: Published

Opinion

Beck, J.

The proofs of publication filed in each' case, as set out in the petition, show that the notices were published in the Pocahontas Journal, a weekly newspaper published at Rolfe, in Pocahontas county, the paper indicated in the.order of publication. The proofs do not show that it was printed, in the county of Pocahontas, but it is alleged in the petition that it was in fact printed in Webster county, at Fort Dodge. It is also alleged in the petition that no newspaper, at the time, was printed and published in Pocahontas county, but that two newspapers were juiblished and printed in Humboldt county, which is averred to be the “next nearest county” to Pocahontas.

The law in force at the time provides that “the publication must be made by publishing the notice required * * * * in some newspaper published at least weekly, and printed in the county where the petition is filed, aud if there be none pi’inted in such county,-then in such paper printed at the next nearest county of this State, which paper shall in either case be determined by plaintiff’s attorney.” Acts 13th General Assembly, Chapter 14'2. Code § 2619.

It may be admitted that the newspaper in which the publication may be made, must be printed in the county where 1. service: publication of notice. the suit is brought, and if there be none such then , 7 . the notice must appear m a newspaper pnnted m the next nearest county. The petition alleges that the newspaper in which the publication was made was printed in Webster county, and that no newspaper was printed in Pocahontas county. It also shows that the notice was published in the newspaper determined by plaintiff’s attorney. Now the question to be decided is this: Is Webster the next nearest count}’ as contemplated by the statute? The court will take judicial notice of the boundaries of counties, and their relative location. Webster county lies adjacent to Pocahontas. Four other counties also have common boundaries with it, and it has corners in common with two others. Of these, which, in the language of the statute, is “the next nearest county?” The statute makes no provision as to the town in which the paper is published, further than it shall be “ at the next nearest county.” Five counties lie equally “ near ” Pocahontas, that is, they have boundary lines in common with it. Suppose in each of these counties newspapers were published, how should the question have been determined as to the one in which the • publication should have been made? The statute provides it shall be determined by plaintiff’s attorney. It is evident that of these five counties, each being adjacent to Pocahontas county, any one may be considered the next nearest, if so determined in the manner and by the person pointed out in the statute. The publication, therefore, of the notice in a newsjiaper printed in Webster county, upon the determination of plaintiff’s attorney, was a strict compliance with the law.

II. But the petition alleges that Humboldt is “ the next nearest county.” This contradicts the record pleaded by plaintiffs 3. pleading : lioe'ffemur-rer-which shows that Webster county was so determined in the manner pointed out by law and other facts, the location and boundaries of the different counties, of which the courts will take judicial notice. A fact which is judicially known to the court is to be regarded as a matter of law, and therefore cannot be pleaded. A contradiction or denial of such a fact cannot be well pleaded, and is not admitted by a demurrer. Rev. § 2917. Code § 2712. The demurrer therefore did not admit the allegation of the petition just stated.

Other objections to the ruling of the court.upon the demurrer are not presented in the argument of plaintiff’s counsel. We are required to regard them as waived.

The judgment in each cause is

AFFIRMED.