Wood v. Page & Moran ( 1877 )

Simrall, C. J.,

delivered the opinion of the court.

The assignment of error most seriously pressed is insufficient proof of publication against the non-resident, and of mailing notice to him.

The defect alleged in the former is the omission of the clerk, before whom the publisher of the newspaper made affidavit, to certify that he compared the numbers and dates with the files of the paper, and found them to correspond with the recitals in the affidavit. The defect in the latter is that the clerk failed to attach to his certificate that he had mailed the notice to the debtor’s post-office, a copy of it, the certificate referring to such copy as thereto appended.

Section 819 of the Code of 1871 prescribes the mode of making proof of publication, which is the “affidavit of the printer or publisher, specifying the number and dates of the newspaper in which the publication was made, together with the certificate of the person before whom the affidavit is made, that he has compared the newspapers with said copy, and that the same is correct and truly made. And such affidavit and certificate shall be competent evidence in all courts in this state.”

The 1477th section (part of the attachment law) allows judgment by default, on proof of publication.

The proof of publication here meant is that prescribed in section 819, and embraces both the affidavit of the printer or publisher and the certificate of the person who administers the oath and makes comparison of the numbers and dates recited, with the corresponding issues of the newspaper.

Nor is tbe proof complete, to warrant a judgment by default against tbe debtor, if tbe certificate is wanting. That is made, by statute, as essential- as the afiidavit.

The evidence of the notice is purely statutory, and must conform essentially to it. The only evidence of publication of notice in the record is the afiidavit of the publisher. The certificate of the clerk before whom the afiidavit was made, of a comparison with the files of the newspaper, is wanting.

The sound rule is that when a statute substitutes some other mode of notice for personal service of process, as the foundation for the jurisdiction of the court, close compliance with such requisition will be enforced. Kerr v. Bowers, 1 Smed. & M. 588.

The statute in that case, in addition to publication in a newspaper, required that "there shall be a copy of the order posted at the front door of the court-house.”

Jurisdiction is obtained either by service of process or publication, when that is authorized. Gwin v. McCarroll, 1 Smed. & M. 368; Edwards v. Toomer, 14 Smed. & M. 77; Moore v. Williams, 44 Miss. 61.

The question before us is, not whether the judgment is void, and might be so pleaded in a collateral suit, but whether the proceedings are irregular and erroneous merely. That distinction was attempted to be pointed out in Erwin v. Heath, 50 Miss. 795.

The clerk certifies that he mailed a "copy of the notice of publication” — what that was, already appeared in the record. His failure to append a copy would not vitiate the certificate.

The recital in the judgment negatives the idea that there was proof of publication, as at common law, by the' production of the files of the newspaper, and the examination of a witness, and refers to the statutory proof.

For the error indicated the judgment is reversed.