Thompson v. J. C. Camors & Co. , 126 Miss. 772 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The appellants, H, O. & C. A. Thompson, prosecute this appeal from default judgment rendered against them in the circuit court in an attachment suit. The sole question presented by this appeal is whether or not the judgments in the attachment suits and upon the debt issue are void because of a failure to properly summon the appellants, defendants in the circuit court. The appellants were proceeded against both in the affidavit and the declaration as residents of the county with their place of business and residence at Kreole, Jackson county, Miss. The writ of attachment was issued in the same manner. The return of the sheriff upon this writ was to the effect that he had executed it by going into the storehouse of the defendants at Kreole and attached and levied upon the goods, wares, merchandise, and accounts of the defendants and by posting a copy of the writ upon the door of the storehouse, having failed after diligent search and inquiry to find either of the defendants in the county. Publication of notice as provided is section 147, Code 1906 (section 189, H.emingway’s Code), was properly made for three weeks in a newspaper published in that county. The caption of this notice was “Nonresident notice.” No affidavit was filed with the clerk by the creditor, its agent or attorney, showing the post office of the defendants, or that the plaintiff (appellee) had made diligent inquiry to ascertain it without success, and no copy of this notice was mailed by the clerk to the defendants (appellants). The default judgments both on the attachment issue ancl the debt issue refer to the defendants as being nonresidents of the state.

It is the contention of the appellants that section 147, Code of 1906 (section 139, Hemingway’s Code), is to be construed with sections 3921 and 3924, Code of 1906 (sections 2928 and 2931, Hemingway’s Code), and that these sections require not only publication in a newspaper, but a mailing of the summons to a resident defendant not personally served. ' Section 3921 of the Code, however, refers only to nonresident and unknown defendants, as is shown by its caption. This caption being “The Same; Copy Mailed, etc.,” which, of course, refers to the preceding section and the caption of section 3920 is “Nonresident and Unknown Defendants Summoned by Publication.”

Section 3924, Code 1906 (section 2931, Hemingway’s Code), provides that publication of summons in all cases and in every court shall be made as provided in the chapter on nonresident or absent defendants in chancery “unless otherwise provided.” This section is not applicable, because section 147 expressly provides for the publication of notice in case the defendant be not summoned. This section deals first with a resident defendant not found. In this case the statute expressly provides that:. “The clerk of the court shall cause a notice to be published once a week for three weeks in some newspaper published within the county,” etc.

After thus dealing with resident defendants it is then provided:

“But in cases of attachment against persons residing out of this state, the creditor, his agent or attorney, shall file with the clerk his affidavit — if the affidavit for the attachment do not contain such statement — showing the post office of the defendant, or that he has made diligent inquiry to ascertain it without success; and if the post office shall be stated, the clerk shall send by mail to such defendant, at his post office, a copy, of such notice, and shall make it appear to the court that he has done so, before judgment shall be rendered on publication of notice.”

It will thus be seen that in providing for the publication of notice for a resident defendant this section only requires publication in newspaper for three weeks when a newspaper is published in the county. But in case of a nonresident defendant it is further made the duty of the creditor, his agent or attorney, to make affidavit showing the post office address of the defendant, or that he has made diligent inquiry to ascertain it without success; and, if the post office is given it is further made the duty of the clerk to send by mail to the defendant a copy of the notice. We presume that the lawmakers appreciated the fact that a resident of a county would certainly ascertain that his estate had been attached either from the actual seizing of his estate by the sheriff or would see the notice in his county .paper. On the other hand, a nonresident absent defendant living probably many miles away from his estate in Mississippi might not be informed of the attachment by virtue alone of. its execution, neither would he be apt to read the county paper; consequently his interests are further safeguarded by the statute in this manner. However, this court is not called upon to pass upon the wisdom of the statute. It is plain and unambiguous in its terms. Ita lex seripta est.”

Under this section the defendants were properly brought into court, and the court had jurisdiction to enter the judgments by default.- The judgments erroneously describe the defendants as being nonresidents. This, however, does not invalidate them.

Affirmed.