Williams v. Doolittle

Ethridge, J.,

delivered the opinion of the Court.

The appellees filed a petition in the chancery court to re-establish the record creating the Sabougla drainage district No. 2 in Calhoun and Webster counties, alleging that they were landowners in said district, that the district was organized under the orders and decrees of the chancery court and they were appointed commissioners of said drainage district, and that the record in this cause was destroyed by fire on the 22d day of December, 1922; said record including all of the proceedings in the said cause since the year 1920 aild the various orders and decrees of the said court. That the petitioners have attached to the bill a correct copy of all the records and proceedings in this cause and all the material particulars so far as they are able to ascertain, and they believe and set forth that the same covers the proceedings in this cause. That the said petitioners are interested in the restoration of the said papers and the carrying on of the said proceedings in this cause, as are also the other landowners of the said district; and for a description of the land with the names of the owners. Petitioners respectfully submit that the attached papers show the same, and they refer to the said record for a description of the land in the Sabougla drainage district No. 2 without more extensive enumeration of the same in the petition, and praying that process be issued according to law to all parties interested, that they be commanded to appear at the next term of the honorable court, and that the record of this cause be re-established and the cause be proceeded with in due order, and for such.other, further, and general relief as the nature of the case may require, and as in equity may seem meet.

The exhibit referred to in this petition is a copy of the record in this court in cause No. 23,192 of this court styled Sabougla Drainage District No. 2 v. R. M. Provine, J. R. Williams, and W. T. Bennett. The exhibit shows that the petition for the creation of the distiict was filed and the lands described therein, and the notice for two weeks was published in the papers in Calhoun and Webster counties as required by the act under which the drainage district was created. That the appellees were appointed commissioners and the engineers were appointed, surveys made, etc., which were approved by the chancery court, and the drainage commissioners filed their assessment of benefits accruing to the land by the creation of the benefit and gave notice under the statute. That thereupon the appellants came in and filed objections to the assessment made and an order was made directing the commissioners to assess the damages to the appellants.

The chancellor, in signing the order directing the commissioners to reassemble and assess the damages, granted an appeal to this court, and the record was made up and sent to this court, where a motion was made to dismiss the appeal because an appeal did not lie from such an order, which motion to dismiss was sustained. See opinion in Sabougla Drainage District No. 2 v. Provine et al., 130 Miss. 761, 94 So. 889.

It appears from the record before us that the mandate in the said appeal was dated the 19th day of May, 1923, and that the petition here under consideration was filed on the 27th day of April, 1923, and that the records were destroyed by fire on the 22d day of December, 1922. The notice in the present suit was served personally upon the appellees and also published in two issues of the papers in each of the counties in which the said district lies. The appellant filed a motion to quash the process in the said cause: (1) On the ground that at the time the petition for the substitution of the record was filed no mandate had been sent down by the supreme court on the appeal heretofore taken in this cause, nor had such mandate been filed when publication for interested persons had been made. (2) No person is named as being interested in the reestablishment of the record, and the petition makes no effort to enumerate the persons so interested. (3) Process did not issue as in other cases in the chancery court. (4) Unknown and nonresident defendants were not made parties by publication as-in chancery. (5) The publication'was not made for three weeks, and the first publication was not more than twenty-one days before the first day of this court as required by law governing publications in chancery, which motion was overruled and a plea filed setting up the same grounds and setting forth certain parties who are interested and certain lands whose owners are unknown in said district; which plea was set down for hearing on its sufficiency and judged insufficient, and directing the clerk to prepare an engrossed copy of the record exhibited with said petition, and that same be filed within ninety days from the date of the decree, and same is declared to be to all intents and purposes the record'in this cause, to all of which the appellants except and prayed an appeal to this court.

It is insisted by the appellants that the petition and order thereon are insufficient because the resident owners of lands embraced in the district were not all personally summoned and that the unknown and nonresident landowners were not given three .weeks’ notice by publication of the pending 'of the petition to restore the destroyed records, and that three weeks’ notice to the unknown and nonresident landowners is required by section 2514, Hemingway’s Code (section 3173, Code of 1906), and that this section also requires that all the resident owners be made parties defendant and be served with summons more than five days before the return day of the petition. Whereas the appellees contend that the notice given by personal summons to the defendants who were the parties in the suit pending, the record of which was destroyed and that the notice by publication for the same length of time as originally required to create the drainage district was a compliance with the section; that the terms of the statute, “Process shall issue as in other cases, and unknown and nonresident defendants may be made parties by publication, as in chancery,” contemplate only such publication and not'ce as was required in the original proceedings creating a drainage district.

We are of the opinion that this cause is a pending cause and that the provisions of section 2516, Hemingway’s Code (section 3175, Code of 1906), is the proper section applicable to this suit, and as the process was personally served on the parties litigant, each being served with summons who were parties to the litigation, that such process is sufficient to give the chancery court jurisdiction to re-establish the records of such suits which included all of the proceedings • establishing- the drainage district and appointing commissioners, etc. -It is true the process was not served on the attorneys for these parties as it might have been done and as the statute contemplates would be done, but inasmuch as all of the litigants were summoned and appeared in the cause we think the court correctly decreed the records be restored. This suit was clearly a pending suit in the chancery court and it, had jurisdiction of the petition, exhibits, and power to restore the records. ■ • . ..

The chancellor -having reached the same conclusion, the judgment will be’ affirmed.

Affirmed.