Some Ancient Publication Guidance that is Still Good Law
March 31, 2014 § 1 Comment
Process by publication bedevils attorneys perhaps more frequently and thoroughly than any other aspect of the law. It’s a subject we’ve touched on in numerous previous posts.
Before the advent of the MRCP, lawyers consulted the venerable Griffith on Mississippi Chancery Practice (1925), and Bunkley and Morse’s Amis, Divorce and Separation in Mississippi (1957), for guidance.
So what do those ancient treatises have to tell us about modern-day publication process? Here’s what the MSSC had to say about it in Caldwell v. Caldwell, 533 So.2d 413, 415-417 (Miss. 1988):
[MRCP 4(c)(4)(A)] is substantially the same as the formerly followed statute Miss.Code Ann. § 13-3-19 (Supp.1972). Therefore, the former judicial decisions and treatises interpreting what constitutes diligent search and inquiry to ascertain addresses of non-residents of Mississippi may be relied upon to analyze the instant case.
Among this jurisdiction’s oldest equity treatises is Griffith, Mississippi Chancery Practice, Bobbs-Merrill Company, Inc. (1925) analyzing Mississippi’s requirements for summons by publication. Its applicability to this point of law is still apropos and is as follows:
§ 236 Requirements of publication statutes must be strictly observed.-It is the uniform and unbroken course of decision in this state that where notice by publication is resorted to, as a basis for the jurisdiction of the court, in lieu of personal summons all the requirements of the statute as to such notice must be strictly complied with, and it being a jurisdictional matter it cannot be cured by a recital in the decree as against a direct proceeding attaching it; … and it is not enough merely to give the residence of defendant, it must give his postoffice address, if known, and if not known it must be stated that it is not *416 known after diligent inquiry. An affidavit to support process by publication must strictly comply with the statute and if it omit averment of diligent inquiry it is insufficient. The affidavit for publication when made by an agent must cover the knowledge of the principal as well as of the affiant, as for instance, if an attorney makes the oath for his client the oath should show whether the knowledge or information is that of the attorney or the client, and an oath to a bill upon which a publication to non-residents was predicated which recited that “the matters and things stated in the bill on his own knowledge are true and those stated on information he believes to be true” will not support the publication.
Mississippi Chancery Practice at 225-227. See also, Amis, Divorce and Separation in Mississippi, § 244 (1935); Bunkley and Morse’s Amis, Divorce and Separation in Mississippi, § 15.01(3) (1957). Bunkley’s work states also:
It seldom happens that the published notice is defective, but the usual trouble is that the averments of the affidavit, or sworn bill [i.e., pleadding], are insufficient to authorize any publication to be made at all. This arises out of a misconception of the purpose of the statute, or else a misunderstanding of its provisions. Publication for a non-resident, or absent defendant, is not a mere formal or perfunctory matter; but the purpose is to give the defendant actual as well as constructive notice of the suit and an opportunity to make defense thereto, if it be reasonably possible to do so. Due process of the law requires notice and an opportunity to be heard, and this applies to residents and non-residents alike when sued in the courts of this state. …
If he cannot be found in this state, and any fact in regard to his whereabouts and/or post office and street address be unknown to the complainant, then he or she must make an honest and diligent effort, or inquiry, to ascertain the same, so that when publication is made the clerk may send him a copy of the notice. Good faith to the court, as well as the statute, requires this to be done before any affidavit for publication is made. And if, at any stage of the proceedings, it should appear that such duty was not performed, and that the affidavit was not made in good faith after diligent inquiry under the facts of the particular case, the process should be quashed by the court, of its own motion, as a fraud on its jurisdiction; for courts sit to protect the rights of defendants as well as to enforce those of complainants.
Divorce and Separation in Mississippi at 283.
Judicial interpretations have given rise to these treatises by such cases as Ponder v. Martin, 119 Miss. 156, 80 So. 388 (1919); Diggs v. Ingersoll, 28 So. 825 (1900). In Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872 (1927), this Court stated regarding the requisite oath, as follows:
We are of opinion that the changes made in the statute with reference to the oath required to bring in by publication a nonresident defendant, are material changes; that they are vital and that they were intended to answer a wholesome purpose and will have the effect of doing so. If the complainant makes the oath that the post office address of the defendant is unknown to him, he ought to be required, as the statute does require, to go further and make oath that he has made diligent inquiry to ascertain his post office address; and if the oath is made by the complainant’s attorney that the post office address of the defendant is unknown, he ought to be required, as the statute does require, to state that he had made diligent inquiry to ascertain his post office address, that he believes it is unknown to the complainant, and that the latter has made diligent inquiry to ascertain the same.
Mercantile Acceptance Corp., 112 So. at 874.
Remember that the affidavit must be filed before any publication is undertaken, and it must include the required information. Publication before filing of the affidavit is a nullity. Process by publication that does not meet every technical requirement of the rule is a nullity that deprives the trial court of jurisdiction, unless the defendant enters a voluntary appearance.