Where to Publish
November 30, 2015 § 4 Comments
Sometimes you just have to publish. It may be to complete service of process, or it may be notice to creditors in an estate, or it may be notice of a foreclosure sale. How and where do you publish notice?
Of course, when in doubt, read the rule or statute that applies. But that’s an overly-optimistic view. Some of you will stubbornly soldier on doing some of the most absurd things, like the attorney in a Lauderdale County guardianship recently who published process to the purported father in a Warren County newspaper because that was the man’s last-known county of residence. While that sounds a nice due-process tone, it just doesn’t meet the requirements of MRCP 4. So here are a few pointers:
Service of Process. Everything you need to know about publication process is in MRCP 4(c)(4). Subsection (B) of that rule requires that the publication be made “once each week during three successive weeks” in a newspaper of the county in which the pleading, account, or other proceeding is pending if there is such a newspaper. If there is no such newspaper, then you must post your notice on the courthouse door of the county, and publish it in the newspaper of an adjoining county or in a Jackson newspaper. I believe that the term “newspaper of the county” means one published in the county. That would be consistent with statutes requiring publication, and is the only common-sense interpretation at which I can arrive.
Remember that the courts strictly interpret the process rules. Close does not get you the cigar. You must strictly comply with the rules. There are many pitfalls awaiting those who try to slop through without attention to strict compliance, as I have posted about here before.
Notice to Creditors. MCA 91-7-145 requires that notice to creditors of an estate shall be made in “some newspaper in the county.” This publication requirement also applies in guardianships and conservatorships, per MCA 93-13-38(1). Section 91-7-145 goes on to say that “If a paper be not published in the county, notice by posting at the courthouse door and three (3) other places of public resort in the county shall suffice,” and you must file an affidavit attesting to the posting.
Before you publish, you must file an affidavit of the fiduciary that he or she has made a reasonably diligent effort to identify and give notice to persons who may have claims against the estate. Failure to file the affidavit before publication voids the publication.
Foreclosure. MCA 89-1-55 requires that a foreclosure sale be advertised for three consecutive weeks “in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein,” and by posting the notice at the courthouse. The statute specifies that the land must be sold in the county where it is located, or the county of the residence of the one of the grantors, or, where the property is situated in more than one county, where the parties have contracted for the sale. Where a city extends into more than one county, a newspaper published in the city is deemed to be published in all the counties into which the city extends. Warren v. Johnston, 908 So.2d 744, 748-49 (Miss. 2005).
Judge Robert Clark in Lexington requires publication in a newspaper published in the county where the case is pending. I had followed & was taught in law school many years ago that any newspaper of general circulation in the county was sufficient. This clarifies rules of publication.
I think you have to follow the applicable statute to the letter. If it says “published in the county” then that is what is required. The more particular statute controls.
How does this coincide with Miss. Code Ann. Sec. 13-3-31? This section states: “Whenever it is required by law that any summons, order, citation, advertisement or other legal notice shall be published in a newspaper in this state, it shall mean, in addition to any other requirements imposed by law, publication in some newspaper which : (a) Maintains a general circulation predominately to bona fide paying subscribers within the political subdivision within which publication of such legal notice is required.”
Excellent question. At first glance, it almost looks like it creates a double publication requirement, which no one does in practice. I think what it does is further defines the paper to be used. I think this grew out of a controversy in which the Jackson Free Press wanted to be the publication paper in the Jackson area, but it is not a paper of general circulation. Anyone else have any thoughts on this statute?