Thomas v. Issenhuth

Citations

• 18 S.D. 303
• 100 N.W. 436
• 1904 S.D. LEXIS 55

Syllabus

<p>1. Where the record on appeal contains what purports to be findings of fact presented to the court by plaintiff, marked “Sustained,” but such findings are insufficient to support the judgment, the court will assume there are no findings on which the judgment was based; the judgment itself not purporting to be based on any findings of fact.</p> <p>2. In an action to vacate foreclosure proceedings had by advertisement, and ' to cancel the record thereof on the ground that the notice of foreclosure was not given for the length of time required by the Code, the entry of judgment without having made any findings of fact and conclusions of law is erroneous, under Code Civ. Proc. § 276, providing that, on the trial of a question of fact by the court, its decision must be given in writing, and that no judgment shall be rendered until after the filing of such decision, and section 277, providing that, in giving the decision, the facts found and the conclusions must he separately stated, and judgment on the decision entered accordingly.</p> <p>3. A motion to dismiss an action on the ground that the complaint does not state facts sufficient to constitute a cause of action will not lie.</p> <p>4. Code Civ. Proc. § 639. relating to foreclosure of mortgages by advertisement, provides that notice that a mortgage will be foreclosed by sale of the mortgaged premises must be given by publication for six successive weeks. Civil Code § 2445, provides that whenever, in any act providing for publishing notices, the phrase “successive weeks” is used, the term “weeks” shall be construed to mean calendar weeks, and publication on any day in such weeks shall he sufficient publication for that week. Held that, under the latter section, Code Civ. Proc. § 639, is so modified that a notice of foreclosure by advertisement which is published for six successive weeks, once in each week, is sufficient, though but thirty-seven days intervened between the first publication and the date of sale.</p>