The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-21
JANUARY TERM, 1866.
Noah Foster ct al }
l0,228. vs.. ,
M Simmons at nj

the Court.
Error to the Chancery Court of Pamela
county.
Thebill of complaint in this case was ta-
ken for confessed in the court below, and
the cause was heard and final decree rem
dered without the appearance Of any of the
defendants.
The subpoena was duly executed on Eos
ter, but the return as to Thornton showed
an insufficient service. The return as to the
latter Ia in these words, executed ON III. Il.
Thornton by leaving true copy ofthe orig
inal at his residence In the hands of his wife,"
This court has decided in tho case of w. A.
Robertson vs. A. G.. johnson at April term,
1866 that the rule laid down in the case of
Merrill vs.. White, 81 Miss, 436, in relation
to the execution and return ofprocessin the
Circuit Courts, applies in its full force to
the process Of the Chancery Courts and
hence, that it is necessary for the Sheriff to
return written statement of his proceed
ings in the service of a summons in Chance
~, in order that the court may be able to
determine whether the requirements of the
law have been complied with.
No person is bound by judicial proceed
ings, without notice being given to them,
and an opportunity afforded him to make
defence against them. Obviously. the prop
er notice is by a personal service of process,
but as this is not always possible, an inferior
mode of service is admitted in certain cases.
But whenever constructive notice is sub
stituted for an actual one, the record must
show the existence of the circumstances that
justify it. The statute requires all original
process to be served personally on the de-
PENDANT, tito be found, and true copy de-
livered to him and it is only in case the
defendant cannot be found to be personally
served, that service can be made by leaving
q copy at his usual place of abode. Rev.
Code, 489, Art. 90. When, therefore, the
return shows that the process has been
served by leaving such copy, the question of
its sufficiency depends upon the further fact
that the defendant could not have been
found; and this fact can only be shown by
BILE to adjudge that the defendant has had
any legal notice of the tendency of the suit,
in the absence of proper proof of the facts to
authorize the notice to be given in the par
ticular manner adopted. 4
The same reasoning applies where publi-
cation is made against a defendant in suit
in Chancery, When it shall be made to APP
pear to the satisfaction of the Judge, by
affidavit or otherwise, that any defendant
in a suit in Chancery, is out of the State, or
a nonresident thereof, or cannot upon due
inquiry be found therein, an order may be
made directing such defendant to appear,
&c and such order must in twenty days,
be personally served on such defendant, or
published in one of the newspapers of the
State, for four weeks, successfully, at least
once in each week. Rev. Code, 545, Art "a.
This article allows a mode of constructive
notice far Inferior to that by leaving copy
at the usual place of abode of the defendant
and the argument in favor of a strictcOm
pliance with its provisions, is stronger in
the same proportion. No such order can be
made without the showing required by the
statute, of the absence or nOn-residence of
the party, or that he cannot be found, upon
due inquiry, When this proof has been
made, then the order must be published in
the manner prescribed, and such other di-
rections as the court may give, must be
obeyed The article quoted, in default of
personal service, requires the order, within
twenty days, to be inserted in newspaper
named in the order, and continued therein |
for the time specified. And this provision |
rom aims il, fun force, unless IL has been re-
pealed or modified by some later legislative |
act. #
The act of January Is, 1862, (page 1854,
is relied on as introducing new rule on the
that "all notices, publications, and adver-
tisements, required by law to be published,
n a newspaper shall, when there is no
newspaper published in the county where
Iuch publication ought to be made, be made
~ posting up copies thereof in five public
places in the county, one of which shall be
It the court house door. And it shall be the
luty of the court making any order of pub
ication against an absent or nonresident
,arty, to require the person applying for
uch order, to state in his affidavit, the resi-
lence of such absent or nonresident party,
f the same can be ascertained and such
curt shall direct the clerk to transmit, by
nail, copy of such order, to such absent or
party"
We think the first clause of the first section
If this latter act, was not intended to make
my alteration in the law relating to orders
'fpublicatiOn, against absent or nonresident
PARTIES in Chancery cases. Its terms only
pply to cases where the publication is re-
Iuired by law to be made in some particular
county, and where there is no newspaper
in the county in which the publ
alton is required to be made. Orders of
against absent Defendants in
Ihancery cases are not required to be pub /
lshed in any particular county, but dis j
retiOn is given to the court to direct their
publication in any one of the newspapers of I
ne State, to be designated in the order.
hey are therefore not embraced within the !
anguago of the act, nor are they within the
Mischief intended to be remedied by it. Such !
riders of publication are therefore still re- !
uired to be in some newspaper of the State i
70 designated by the court in the order {
tself, Notwithstanding the passage of the {
lst named act. But if that were otherwise {
would be clear that, in order to take /
ase out of the operation of the Saith article {
t the act in relation to Chancery Courts, I
to and in 70 ,1of g. 4
laking of publication by posting in five e
ublic places in the county, it would be
ecessary that it should appear by the re-
ord, that it was shown to the court making
he order that there was no newspaper pub
shed in the county where the publication
ught to he made.
The same rule of construction will apply,
the publication was made by posting un-
er the provisions of the act of Nov. 10, 1859, '
age LOG, and the order directing it would
o irregular and erroneous without q show I
~ to the court, that the newspapers re- = !.
lsed to publish the same for the compensa- ~
on allowed by law. The general presump- d,
on in favor of the regularity of the proceed. Il
lgs of courts of general jurisdiction, cannot Il
Q applied to the process whereby the par A
es are brought into court. This is already OF
zpressly decided in reference to the return fe
the service of the summons, and the same $
lie must prevail in cases OF constructive IN
otice by publication, as well where the d.
lestion is as to the mNle of making the h.
as in regard to the circumstan p
IS in which such notice will be allowed at "
/. of
The last clause of the first section of the Sc
It of 1862, has more general application ~
IAN the first clause, and is expressly made ca
extend to orders of publications against lii
sent or nonresident parties. In these TO
SEES il il Drovided that the reSideDce of the "