Burks v. Burks , 66 Miss. 494 ( 1889 )

Cooper J.,

delivered the opinion of the court.

We think the conclusion of the chancellor upon the question of title is supported by the evidence.

The publication of notice to the non-resident owners was not supported by any sufficient affidavit. The oath of the attorney to the bill was only to the effect that “thematter and things stated in the bill on his own knowledge are true, and that those things stated on information and belief he believes to be true.”

There is nothing stated in the bill to be true to the knowledge of tbe attorney and nothing stated on his information and belief. While an attorney may make oath for his client in all cases in which an oath is required (Code, 2295), it should be special and show whether the knowledge or information be that of the party or of the attorney. Waller v. Shannon, 53 Miss. 500. Where affidavit is made by an attorney for publication for a non-resident in chancery, it is expressly provided that the form of the oath shall be that the post office is “ unknown to affiant, and he believes it is unknown to the complainant or petitioner.” Code, § 1855.

The error in this respect would ordinarily result in a reversal of the decree. But all the defendants against whom publication was defectively made, have entered their appearance in this court and consented to a severance, thereby electing to abide by the decree. Since those against whom only error appears to have been committed decline to assign it, the appellant, E. W. Burks, against whom no error is shown, cannot complain. Code, § 1440.

The court below has made no decree in reference to distribution of the proceeds of sale. The right of the widow Parmelia Burks, (now dead) to participate in the distribution is not presented.

The decree is affirmed.