Ponder v. Martin , 119 Miss. 156 ( 1918 )

Etbibidge, J.,

delivered the opinion of the court.

It will be noted from the statement of facts above that neither the bill nor the affidavit filed after the filling of the hill, set forth or alleged that the post office address of the parties named was the same name as the place set forth in the bill. Section 3920, Code 1906 (section 2927, Hemingway’s Code) provides how nonresident of unknown defendants may he summoned by publication. This section, omitting the form of the notice or summons, reads as follows:

“If a defendant in any proceeding in a chancery court he shown by bill or petition sworn to or by affidavit filed, to , be a nonresident of this state, or not to be found therein on diligent inquiry, and the post office of such defendant be stated in the bill, petition, or affidavit, or it be therein stated that it is not known to the complainant or petitioner, or, if the affidavit be made by another for him, that such post office is unknown to the affiant, and he believes it is unknown to the complainant or petitioner, the clerk, npon the filing oí the bill or petition, account, or other commencement of a proceeding, shall prepare and publish a summons to such party to appear and defend the suit on a rule day or on the first day of a term of the court, sufficiently distant in time to admit of the due publication thereof.

“Upon proof of publication of such summons for three weeks in some newspaper published in the county, or in a convenient county, or aUthe seat of government of this state, and of the mailing of a copy of the summons to the defendant at his post office, where that is stated, the defendant may be thereafter proceeded against as if he had been personally served with a', summons in the case in this state.”

Section 3921, Code of 1906 (section 2928, Hemingway’s Code), reads as follows:

“It shall he the duty of the clerk to hand the summons to the complainant or petitioner, to be published, or, at his request, and at his expense, to hand it to the publisher of the proper newspaper for publication; and, where the post office of the absent defendant is stated, to send by mail to the address of the defendant, at his post office, a copy of the summons, and to note the fact of issuing the same and mailing the copy, on the general docket; and this shall be the evidence of the summons having been mailed to the defendant. And for a failure to mail the copy, or to note it on the general docket, the clerk shall be liable to be punished by the court for contempt, and shall be liable in damages to the party injured by the failure.”

Careful reading of the first section set out above shows that the law requires the post office address of the nonresident defendants to be stated, if known, or, if not known, that it shall be stated in the bill or affidavit that it is unknown after diligent inquiry. This statute is a substitute for a summons, and has heretofore been construed by this court as requiring a strict compliance with, its terms. Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, 28 So. 825.

In the case of Moore v. Summerville the bill filed alleged that Mrs. Summerville was a resident of Panola county, Miss., and on return of process not found in the county, the judge made an order reciting that it appears that she was a resident of the city of Chicago, and that her post office was Chicago, III., and directed publication to be made for her to appear, summons issuing and being mailed addressed to Mrs. Summerville at Chicago, Ill., and a decree was entered after such publication granting- the relief prayed for in the bill. Afterwards Mrs. Summerville appeared and filed a bill to set aside the sale, stating that she was not a resident of Chicago, but was at the time a resident of Nebraska, and that she had never received the publication or summons. The court held that, inasmuch as the bill did not state that she was a nonresident of the state, and that her post office address was Chicago, Ill., and that inasmuch as there was no affidavit filed making such allegation, the whole proceeding was void; that the precedent conditions and proceedings required by statute must be complied with strictly.

In the ease of Diggs v. Ingersoll, 28 So. 825, it appears that one Tillman was a trustee in a deed of trust, and that suit was brought to foreclose the deed of trust to which Tillman, trustee, was a necessary party. The court, speaking through Judge TbRbal, had the following to say considering the statute in that case:

“In this case we are led to inquire whether the trustee, Tillman, had proper notice of this suit, and we conclude that he has not had such notice. Publication in a newspaper was made as to him, but there was no sufficient affidavit made for such publication. The bill of complaint, sworn to by the complaint, states ‘that W. E. Tillman, trustee, has removed from the state, and his whereabouts at present is unknown.’ About ten months after the hill was sworn to, the attorney of the complainant made an affidavit stating that, to the best of his knowledge and belief, W. E. Tillman, one of the defendants in said cause, is a nonresident of the state, and that he resides in the state of Arkansas, county of-, and that his post office is unknown,’ and upon these sworn statements the publication of notice to Tillman was made. Taking both affidavits together, they do not cover the matters made necessary by section 3421, Ann. Code.”

In the case before the court now the statute was not complied with in giving the post office addresses of several of the defendants. There are many places in the country where the town, village, or neighborhood is known by one name and the post office at which the inhabitants receive their mail bears another name, and not infrequently is located in another town or neighborhood. This is especially true under the present postal system in establishing free-delivery mail routes.

It is of the highest importance that parties interested receive summons or notices, and where publication is substituted for summons, the proceedings required by statute must be strictly followed.

It is also insisted by the appellant that under section 3921 of the Code, above set out, the indorsement by the clerk on his docket is insufficient to authorize the court to proceed with the ease. A portion of this statute requires the clerk to note the fact of issuing the summons and mailing the copy on the general docket, “and this shall be the evidence of the summons having been mailed to the defendant.” We deem it unnecessary now to decide whether or not the proceeding would have been voided had the post office address been properly alleged in the bill or affidavit, but we think that it is highly important that the clerk make this entry upon his docket, giving the names and post office address of each party to whom process has been mailed in accordance with the statute. We can see how a failure to comply with, the statute might effect the bids of prospective purchasers at the sale.

It.is also insisted that it was error for the court to appoint the same person who was appointed' guardian ad Utem for the minors a commissioner to make the sale, and that, if the sale was made by the commissioner as in this case, it would take notice, to the minors at least, of the report of a sale to the chancellor before the same should be confirmed. We think it is inconsistent for the same person to be guardian ad litem for some of the parties to the suit and at the same time a commissioner to make and report a sale. In many cases the guardian ad litem would be in duty bound under his trust to oppose a confirmation of sale, and, if he was the commissioner who made the sale, he would be placed in the awkward attitude of attacking that which he had done. A guardian ad litem is appointed by the court for the purpose of looking after the interests of the particular parties of whom he has been made guardian, and his duties go further than merely filing an answer denying the allegations of the bill. In many cases it would be his duty to present evidence and to acquire knowledge of all facts reasonably accessible pertaining to the litigation, and that therefore he ought not to be made a commissioner to conduct a sale which it might be proper in the interests of the minors to attack. The failure to publish the notice and to comply with the statute in reference to notice was jurisdictional, and without such compliance the court could not proceed to make a partition.

The decree of the court will therefore be reversed, and the cause remanded, to the end that the parties may all be brought into court by proper proceedings.

Reversed and remanded.