Opinions: Everybody has One
April 10, 2014 § 1 Comment
I won’t repeat the old saying about opinions being like a particular part of the body, everybody has one. Or maybe I just did.
Lay opinion testimony seems to draw objections like flies to day-old watermelon, but the rule on lay witnesses offering their opinions is pretty straightforward. MRE 701 says:
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of [testimony by experts].
That is all there is to it. Oh, and MRE 704 abolishes the old “ultimate issue” rule, which means that, if the lay person’s testimony meets the criteria of R701, it matters not at all whether it embraces an ultimate issue to be decided by the trier of fact.
So, if the witness is opining “rationally based” on his or her own perception, and it aids the fact-finder, and is not based on scientific or technical knowledge, it should come in.
Some examples:
- The detective opined that a particular document was not on a hard drive that he had examined. The court found it to be valid lay opinion because almost everybody nowadays has some knowledge of computer hard drives. Boone v. State, 811 So.2d 401 (Miss. 2001).
- Lay witnesses may offer their opinion whether someone had too much to drink or was intoxicated. Havard v. State, 800 So.2d 1193 (Miss. App. 2001).
- A lay witness may offer an opinion as to how fast, in mph, a person was driving, based on what he observed. Moore v. State, 816 So.2d 1022 (Miss. App. 2002).
- A licensed counselor could not offer lay opinion testimony about whether the wife was addicted to internet pornography because he did not have personal knowledge of the extent of her use of the internet. Bower v. Bower, 758 So.2d 405 (Miss. 2005).
Remember that if you try to offer lay opinion testimony and the judge sustains an objection to the offer, you must preserve the point by making an offer of proof. If you don’t, you can’t argue the point on appeal. See, Redhead v. Entergy Miss., Inc., 828 So.2d 801 (Miss. App. 2001).
Don’t assume that if your expert witness is excluded that you will be able to get that witness’s same testimony as lay opinion. As the Bower case above illustrates, the lay witness must have some perception of the event — some personal knowledge — and if he does not, his testimony would be inadmissible. Many experts have only theoretical knowledge upon which to base an opinion.
One mistake inexperienced lawyers make is to ask lay witnesses who actually saw or experienced an event their opinions about it. Most of the time it is far more powerful and effective to ask the witness to relate what she saw, felt, smelled, or heard. For example: “Can you tell me whether Johnny was dying?” is far less effective than to ask, “Tell us what you observed about his head when you arrived.” Answer: “His face was smashed up; his skull was cracked open so you could see his brains, he was covered with blood; blood was spattered on the wall behind his head, his eyes were rolled back, and he wasn’t breathing.”
Lay opinion testimony can be a useful tool in many trials, particularly in family law cases. Standing alone it may not carry the day for you, but it could be just the featherweight of advantage you need to tip the scales in a close case.
Pot of Gold … NOT
April 9, 2014 § 1 Comment
Tom Freeland posted this on his blog not too long ago:
Over the years, I’ve seen several estate cases where some family members were claiming the deceased had a lock box with hundreds of thousands of dollars in cash in it, and even were willing to swear under oath to its existence.
But I’ve never seen one with a shred of actual tangible evidence of the existence of the lock box.
I can second that. His post brough to mind some experiences I have had in that vein.
- When I took the bench I inherited a case in which my predecessor had authorized the administrator to hire a professional treasure hunter to search the decedent’s property for the buried pelf that all of the heirs were convinced was there. Successive authorizations for further excavations were granted until, in the words of one of the attorneys involved, the decedent’s home was perched on a ten-foot pedestal of red-clay dirt with devastation of strip mining all about. It took a ladder to climb onto the front porch. After the heirs exhausted their savings in their quixotic, unsuccessful quest, I authorized them to dig on their own, until at length they gave out. The case took a bizarre turn when I was asked to order that the body of the decedent be dug up and autopsied. No.
- A woman hired me to recover money in her mother’s intestate estate. Her mother had squirrelled money away each month from her meager Social Security payments in a safe deposit box. She and her sister took turns accompanying momma to the bank, so both knew of the cash. Both sisters were on the card authorizing access. After momma’s death they met at the bank and went through the safe deposit box contents. There was $18,000 there. They decided to leave the money in the box and not tell their husbands. It would be their own little trove of mad money. A couple of days later, my client claimed she had a pang of worry about the money, so she drove to the bank. Her heart sunk when she went to sign the access card and saw that her sister had been there without her the day before. All the money was gone. Her sister denied getting the money. I explained to my client all of the problems in proving her claims, and set out all the lies the sister could spin to cover her tracks. We filed a petition with the court and, to make a long story short, were able to recoup the funds because the sister made the miscalculation of revealing to an honest lawyer what she had done, and he made her do the right thing. The worst aspect for the sisters, aside from the attorney’s fees, was that when all the dust cleared their husbands knew about the money.
- Some grandchildren of an old woman in Kemper County came in to my law office one day with a cardboard box filled with rusty tin cans. That’s where grandma would stash her money over the years, depositing the cans under the concrete steps up to the front porch. She would sit on the porch all day with a switch to ward off anyone who tried to get at her riches. When we tried to count it, we discovered that the money was wet, mildewed, worm-eaten, and stuck together. The family had to get a consultant with the Treasury Department to advise how to restore the bills, mostly ones. They followed the instructions and got a Treasury check in return for the currency in the grand total of $3,000. A little more than the expenses of administration.
- In an estate my former law partner handled decades ago, the decedent left a will giving his eldest son his diamond ring and his bank accounts, and his daughter his home. The youngest son, somewhat of a n’er-do-well, got the decedent’s briefcase, hat and cane, all of which were handed over to him unceremoniously. The young man came back later and told my partner that the briefcase was full of US savings bonds. If that were true, and he found a way to cash them in, he came out pretty well.
Before you leap into that estate with stars in your eyes, step back and be skeptical about tales of untold wealth that needs to be dug up. Most people don’t handle their business that way. In many estates, you would do well to make sure your fees and the expenses of adminstration can be paid.
Four Rules up for Comment
April 8, 2014 § 7 Comments
The MSSC has four rules posted for public comment at this link. In a nutshell, they are, with their respective deadlines for comment:
- Appellate Mediation Pilot Program, deadline May 2, 2014. Would create a voluntary procedure to hold appeals in abeyance so that they can be mediated. This proposal arose out of the practice in other states, where the result has been a reduction in pending appeals and the time it takes to resolve them.
- Amendment to MRCP 16, deadline May 26, 2014. Would amend MRCP 16 to require that, once a trial date is set, deadlines for summary judgment motions, expert motions, propounding and completion of discovery, and other procedural matters would automatically be in place. The provision that the parties or the judge may call for a pretrial conference remains unchanged.
- Amendment to MRE 105, deadline April 28, 2014. Would amend the rule to put the responsibility on the court to ensure that there is a jury instruction as to the proper scope of evidence whenever the court admits evidence for a limited purpose. The requirement may be waived by the party affected.
- Amendment to MRCP 3(c), deadline May 2, 2014. Would change the procedure for filing in forma pauperis to conform to statutes.
All of our rules of court directly affect your everyday practice of law. This is your opportunity to have a voice in those rules. You do not have to be a senior partner in a high profile law firm for your opinion to count.
Limitations on Guardianship Investments
April 7, 2014 § 4 Comments
Prudent investment and management of a ward’s assets is a fundamental duty of a guardian or conservator.
The task is complicated by the language of MCA 93-13-17, which states:
Every guardian, before he shall have authority to act, shall, unless security be dispensed with by will or writing or as hereinafter provided, enter into bond payable to the state, in such penalty and with such sureties as the court may require; . . . .
A guardian need not enter into bond, however, as to such part of the assets of the ward’s estate as may, pursuant to an order of the court in its discretion, be deposited in any one or more banking corporations, building and loan associations or savings and loan associations in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a certified copy of the order for deposit having been furnished the depository or depositories and its receipt acknowledged.
MCA 91-13-1, et seq. set out the rules for fiduciary investments, including the types of investment instruments permitted and the manner of holding and trading such investments. No matter what the investment instrument, however, bond is required by 93-13-17, unless the money is deposited into a “fully insured” account at either (a) a banking corporation located in Mississippi; or (b) a building and loan association located in Mississippi; or (c) a savings and loan association located in Mississippi; AND the institution signs acknowledgment of receipt of the court order that no funds will be expended without court authorization.
That thicket of requirements is what Natalie Deason encountered when she tried to get chancery court authorization to invest the substantial settlement proceeds that her son, Blaine, received as a result of his father’s death in the Deepwater Horizon oil rig explosion. Natalie was appointed guardian, and she proposed to remove the guardianship to Louisiana, where she had moved, and to make certain investments of the funds without bond. The chancellor appointed a guardian ad litem for Blaine.
Following a hearing, the chancellor rejected both the request to take the guardianship out of Mississippi and the investment plan, and Natalie appealed.
On appeal, the MSSC affirmed March 27, 2014, in Guardianship of Roshto: Deason v. Stinson. You can read the court’s ruling on the removal issue for yourself, as well as Justice King’s cogent dissent. As for the investment issue, Justice Coleman wrote for the majority:
¶17. The chancellor determined that, because Natalie’s proposed investment plan would not limit the funds to being placed in FDIC insured accounts from which funds could not be withdrawn without a court order, Mississippi Code Section 93-13-17 required the guardian post a bond in the full amount of the guardianship funds. The chancellor noted, and the parties had conceded, that “such a bond would be extremely difficult to find and that the annual premium would be exorbitant.” Regarding the use of a structured settlement, the chancellor expressed concern that “the minimal savings on income taxes would be offset by the cost of the bond and by the loss of potential increased earnings when the interest rates rise.” As to the proposal to put half of the money into a trust account, the chancellor held that “[a]llowing the funds to be placed outside the control of the [c]ourt, without bond, would be an abuse of the authority of the [c]ourt and neglectful of the duty to the minor.” The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in the state of Mississippi and to “avail herself of the benefits of investing through the CDARS plan to maximize protection of Blaine’s assets and minimize her record keeping.”
¶18. Natalie asserts that the trial court erred in requiring that the entirety of Blaine’s settlement funds be placed into CDs. She argues that doing so violates both the reasonably prudent investor standard that governs fiduciaries [Fn 4 See MCA 91-13-3] and the duty of a guardian to improve a ward’s estate. [Fn 5 See MCA 93-13-38]. She claims that interest rates and other considerations related to investment in CDs effectively garner a negative return on the investment. She also argues that bond requirements for the investments should be waived because, if they are not, “[Section] 93-13-17 effectively prohibits a guardian from investing in any investment other than a fully insured bank account when a ward’s assets are substantial – because either the guardian could not obtain a bond, or could not afford one.” She asserts that such a requirement conflicts with the prudent investment statute.
¶19. The plain language of the guardianship statutes unequivocally requires a bond to be posted if the ward’s estate is placed in non-insured investments … While we understand the desire to diversify Blaine’s money and the difficulties surrounding obtaining such a large bond, the plain language of the statute simply tied the chancellor’s hands. The testimony was that, for such a large amount, CDARS was the only practical manner in which the statute could be complied with – the only way that the funds could be deemed placed in Mississippi institutions and be fully insured such that the guardian’s bond could be waived. Under Section 93-13-17, the chancellor had no option but to place the investment in a fully insured program such as CDARS, or to require that Natalie post a bond. Thus, the chancellor did not err in requiring that the entire settlement be put into CDARS.
¶20. The chancellor heard extensive testimony on all the investment options, asked questions regarding the proposed investment strategies, requested additional research on various investment strategies, and issued a lengthy and detailed judgment explaining her decision on the investment of the ward’s settlement. In her order, the chancellor noted the guardian ad litem’s “serious reservations” about the proposed investment of Blaine’s funds, such as “the fluctuating stability of the economy, the recent failures of large investment companies . . . , the historically low interest rates [that] would affect the return on investment rate of any structured annuity, and the requirement that the guardianship assets be bonded for moneys not held in FDIC insured accounts.” The chancellor cited the court’s “duty to wards under its protection to ensure the proper management of the ward’s estate,” and it was evident throughout the proceedings that her primary concern was Blaine’s best interest. The record is clear that the chancellor very carefully considered all the options and made lengthy, detailed, and thorough findings of fact and conclusions of law. Even had the statute not tied the chancellor ’s hands, we would not find an abuse of discretion under such a circumstance.
CDARS is the Certificate of Deposit Account Registry Service, described earlier in the court’s opinion this way:
Through CDARS, someone with large sums of money can deposit and manage CDs through only one bank. That bank distributes the money among other banks for placement in CDs, ensuring that less than $250,000 goes to each bank. The depositor works only with the “base” bank, but his entire sum of money is FDIC insured because it is properly distributed among various financial institutions.
From time to time, lawyers present me with an investment plan that would in all likelihood benefit the ward over the long run. No matter how favorable the terms, however, we are bound by the restrictions of the statutes.
“Quote Unquote”
April 4, 2014 § Leave a comment
“A woman without a man is like a fish without a tricycle.” — Anonymous
“At the last judgment, no one in heaven will ask about your political party; in hell, however …” — Anonymous
“It’s a small world — until an airplane vanishes.” — Jane Tucker
A Threshhold Issue in Adverse Possession
April 3, 2014 § 4 Comments
You’ve read here before about the elements of adverse possession, every one of which must be proven by clear and convincing evidence before the person claiming title by adverse possession may prevail.
One of those elements is that the possession must be hostile. That is, it must not be with the assent of the title owner. There cannot be a valid claim of adverse possession when the actual owner has given the possessor permission to use the land. Massey v. Lambert, 84 So.3d 846, 849 (¶ 11) (Miss. App. 2012).
That is the principle that tripped up Tim Hoover in the claim of adverse possession he asserted against George and Nelta Callen. Tim’s brother, Mayo, had gotten permission to install some septic tank field lines on a portion of the Callens’ property 12-15 years before the litigation. He also had their permission to use the same property to pasture horses and store some vehicles. Mayo had asked to purchase the land for those purposes, but the Callens would not sell, instead agreeing to let Mayo use it. George Callen testified that Mayo told him that, if the filed lines ever caused George any trouble he would remove them.
Mayo died, and Tim moved onto the property. Problems arose with the field lines, and George approached Tim to inquire what he would do about it. Tim reacted angrily and ordered George off of his property. When the field lines remained unrepaired, George dug them up and laid them on Tim’s property. He also constructed a fence on the property line. Tim complained that the new fence “cut through” his yard.
Tim filed suit to remove cloud and confirm title. The chancellor ruled that Tim had failed to prove all of the elements of adverse possession, and Tim appealed.
In Hoover v. Callen, decided by the COA on March 25, 2014, the court affirmed. Justice Irving, for the court:
¶15. “To acquire property by adverse possession, a claimant must show that [his] possession of the property was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for a period of ten years.” Id. at (¶14) (citing Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005)). “The chancellor must find that the plaintiff[] proved each element of [his] claim by clear and convincing evidence.” Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶16) (Miss. 2004)). “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.” Id. at 670 (¶10) (citing Apperson v. White, 950 So. 2d 1113, 1118 (¶12) (Miss. Ct. App. 2007)).
The court went on to find that the evidence supported the chancellor’s conclusion that Mayo and Tim had used the land with permission, and that, as a result, Tim’s claim of adverse possession was defeated.
A plaintiff brought an adverse possession case in my court in which he had gained occupancy of the property via a lease in the early 1980’s. He paid only a few months of rent before stopping his payments entirely, due to inadequacy of the dwelling, he claimed. After a couple of years he moved a mobile home onto the property. The title owner never initiated an action to evict him, although he did send an emissary on one occasion to inquire about whether the plaintiff intended to pay rent. I ruled that the occupancy was permissive, and, therefore, there was no adverse possession. I dismissed the case, and the plaintiff appealed. His appeal was dismissed for failure to prosecute, so we will not be getting any guidance from the appellate courts on the facts in this particular case.
The questions posed by the case that I had are two-fold: (1) If the landlord does not take any action to oust the defaulting tenant for more than ten years, has the landlord waived his right to claim permissive use by the tenant; and (2) What notice or other action on the part of a tenant may overcome the permissive use defense and convert the use to a hostile one? I did not find any Mississippi authority on point.
The Electronic Client
April 2, 2014 § 6 Comments
Even though my practice has been closed more than seven years, I continue to get emails from “prospective clients” about possible representation, I guess because my email address is registered with the MSB. (Memo to self … do something about this).
I say “prospective clients” because they claim to be seeking representation, but I believe they are as bogus as [supply your own simile]. All of their emails bear a resemblance to those of the Nigerian scammers who rained get-rich-quick schemes down on American lawyers and bankers for years like some kind of perseid meteor shower of fraud.
In only the past few weeks, I have received a dozen or so emails asking my help in various legal matters.
- One lady wants me to collect a judgment from her ex-husband who is around $800,000 in arrears in child support, alimony and medical expenses. Ouch. No idea where he lives. I’ve gotten several from her.
- Another, “Mrs. H,” simply wants “legal advice.”
- Yet another, with a Latina surname, who says she is “on assignment in Hong Kong,” wants me to collect more than $800,000 (hmmm … that’s a familiar amount) from her ex “who lives in North America.” Yes, that narrows things down nicely.
- A man (supposedly a man, that is) emailed me to say that he had called my law office and was informed that I was out for several days, so he was contacting me by email. That’s interesting, because I thought I had closed my law office in November, 2006, before taking the bench. I’ll have to check into that.
Those are only from last week. Earlier in the year I had a couple of emails from an alleged architect who wanted my help collecting a big fee, a few with the usual inheritance-hung-up-in-the-UK scam, and so on. I have been tempted to respond to one of these simply to discover how these get-rich-quick schemes operate, but my better judgment persuaded me that I might get haplessly get sucked into something too big to extract myself from, so I passed.
When I practiced, clients dropped by the office and we talked until we reached a mutual decision about engagement. Habitual clients sometimes re-engaged via phone. But picking up clients by email was not done. I wonder whether that’s changed.
I can see someone making an email first contact, along the lines of “My cousin Joe Smith whom you represented in a child custody case referred me to you. Do you handle collection of child support in Jones County? If so, I would like to make an appointment.”
But until I met that emailer, and looked over her paperwork, and we could discuss a fee arrangement eye to eye, I think I would not be interested in getting involved. I would want to size up her demeanor, ask questions about the case, and get the details about how she got where she is. There may be other claims she can and should assert. I don’t know how to flesh all that out in email.
A lawyer complained to me last week that, since he enrolled in electronic filing, he has started getting emails from clients. I gathered from the tone that he did not regard it as a welcome development. He is an older lawyer, and most likely does not use email much, and probably not at all up to now in the practice of law. Email has probably passed him by.
Not so with the younger lawyers. I have heard them talk of having to respond to this or that email from clients. One recently told me of an ongoing email argument with a client over how to handle a certain matter. She said she spent most of an entire weekend engaged in a back-and-forth with the client. That’s a novelty to me. I never spent much time arguing with clients in any form or fashion. If the client thought he could do a better job than I, well then, have at it. I have other things I could be doing that are probably less stressful.
Judiciously used, email could be a great tool for communications with clients in family law matters. Notice of settings and appointments, reminders of deadlines and need for documents, questions needed to answer discovery, all are legitimate uses. But the familiar family law routine of unending what-if questions, the constant need for reassurance, the minor gripes and complaints about the other party and his scurrilous relatives, the drama, all should be reserved for the in-person meeting. You can control office times and appointments, but email is 24/7. If you don’t limit your contact, you could face a never-ending barrage of emails that demand constant attention until you burn yourself out trying to keep up. And the more you respond and reciprocate, the more you are elevating your client’s expectations about this form of communication and your willingness to participate in it.
That’s my take, admittedly out of the practice loop these past seven or so years. Do you see it differently?
MRCP Abolished
April 1, 2014 § 8 Comments
The MSSC issued an order today abolishing the MRCP and returning procedure in all Mississippi courts to pre-rules practice, effective immediately.
A copy of the Order is at this link.
If the link does not work, scroll down this page …
April fool!
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.
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