The record-union., 1897-11-12

ments of the statute all the subsequent
proceedings were invalid" In Hellman
vs. Merz, 112 Cal, 661, the question was
involved in the mater of sale Of real
property of decedent.
Section 1549 of the Code of Civil Pro-
cedure provides that, when real prop
erty is ordered to be sold at private sale
notice of the sale must be published in
a newspaper for two weeks successfully
next before the day or after which the
sale is to be made. In that case the
sale was ordered to be made on or after
April 81, 1892. Notice was published
for fifteen consecutive days, in a daily
paper, commencing April 9th (Tuesday)
and including April 18th (Tuesday),
1892, each day inclusive, and giving no.
tice that such sale was to be made
April Dist, 1892 Thursday). It was ne
cessarily published April 18th (Tues-
day., having been published daily, as
shown by the affidavit, thus making
three insertions at intervals of one week.
The court said: This publication is in
sufficient to satisfy the requirements OF
the statute, for if publication in daily
per may be omitted for one day, then
it may be omitted for two or more days,
and there can be no certainty as to Wnen
the last publication must be made.
The first week began Tuesday, April
18th, and the third Tuesday, April 18th,
and had the publication been made IN
weekly paper issuing on these days the
notice would undoubtedly have been
good, for it would have appeared in each
issue of the paper and for two weeks
successfully next before the day of sale.
But it was in effect held that publica-
ton in a daily paper did not impart no
tice from week to week (as it would have
done had the statute read once week
for two weeks), otherwise the notice
published on the 10Th would have au-
thoriZed the sale on the 21st. 1t follows
| that the notice given in the present
case was not sufficient, as it clearly ap-
pears to have been published only once
a week in a daily paper.
8. Defendant claims that the State is
estopped to question the validity of the
| corporation; that defendant has been
permitted to expend their means in re-
| claiming the land, and, without the in
| tervention of trustees, and in their own
way have been suffered for twenty
| years to enjoy the fruits of their labor
| and the advantages of the corporation
and to now deprive them of these would
be a wrong for which no compensating
| benefits to the State or any one are
| shown.
| No facts were set up in the answer by
way of estoppel and none appear In the
record which could by any possibility
have the effect to conclude the State
from asserting that the corporation has
no legal existence The suggestion that
defendants have for a long period of
! time been suffered to exercise corporate
rights and have expended large sums
under their franchise presents no ele-
ment of estoppel in this case. 1t was
said by Justice McKinstry in People VS..
| Stanford, II Cal 800: THE continued
exercise of a franchise without right
| is continuously renewed usurpation on
which a new cause of action arises each
day"
! The general rule is that there is no
estoppel against the State. 1t is true
that to this rule there are many ex-
ceptions found in the cases, but none,
so far as we have been able to learn,
where the proceeding was directly
| against a corporation by State to test
the right of the corporation to exist.
Corporations have beginning only by
virtue Of compliance with statutory re-
quirements in their formation. (People
VS.. Selfridge, % Cal. 331; People VS..
Montecito Water Company, 81 Cal. 2l6;
Harris VS. McGregor, 20 Cal. 12o) A
corporation cannot acquire a legal ex-
istence by mere lapse of time.
The judgment and order should be
affirmed. CHAPMAN, c.
We concur: SEARLS, c.
BELCHER. c.
For the reasons given in the fore
| going opinion the judgment and order
appealed from are affirmed
HARRISON, ].
GAROUTTE, ].
VAN FLEET, j.