Kaas v. First State Bank

193 N.W. 54, 46 S.D. 369, 1923 S.D. LEXIS 36

• Court: South Dakota Supreme Court
• Decided: April 3, 1923
• Docket: File No. 5201
• Status: Published

Opinion

GATES, J.

This appeal brings up the sufficiency of the publication of a notice of foreclosure sale by advertisement (Rev. Code 1919, § 2879'). The sixth publication of the notice was had on April 1, 1921, and the sale was held on April 2, 1921. This action was begun on March 30, 1922, to enjoin the issuance of sheriff’s deed. The plaintiff appeals from an order sustaining a demurrer to the complaint. In his brief appellant quotes that portion of our opinion in Printup v. Kenner, 43 S. D. 473, 180 N. W. 512, wherein we admitted the correctness • of the decision) of the N'orth Dakota Supreme Court upon this subject, but hield that we were bound by the rule of stare. decisis to adhere to the decision in Thomas v. Issenhuth, 18 S. D. 303, 100 N. W. 436. Appellant seeks to differentiate this case from those, in that here, the action was begun to set aside the sale during the period of redemption, and before the sheriff’s deed on foreclosure had been issued.

We are still of tine view that the rule of stare decisis compels us to adhere to the former decisions, even though this action was brought before the sheriff’s deed had been issued.

The order appealed from is affirmed.