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.

WHAT DOES IT TAKE TO SATISFY THE DILIGENT INQUIRY REQUIREMENT OF MRCP 4?

August 16, 2011 § 2 Comments

We’ve talked here, here and here about MRCP 4 and its requirements for obtaining process by publication. The prerequisite to any process by publication is “diligent inquiry” to discover whether the party is to be found in Mississippi, and, if not, her post office address.

No process by publication can issue until there is an affidavit filed stating that diligent inquiry has been made. The one who claims to have made the inquiry is required to testify to the efforts involved. It is in the court’s discretion to determine whether the inquiry was indeed diligent.

So what exactly is diligent inquiry? To what extent is a party required to search out the whereabouts of the opposing party? I will confess to a certain degree of inconsistency on this issue on my part, due primarily to the fact that in Mississippi we do not have a template of authority or guidelines to go by. I do always question the witness about measures taken, and I am usually satisfied that he or she has done all that can be done.

Recently, it came to my attention that Florida has a form certificate of diligent inquiry that is required in all such cases. The affiant must check all of the categories of effort that apply. Here are the guts of the Florida certificate:

  • United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
  • Last known employment of respondent, including name and address of employer. You should also ask for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then for any addresses to which any pension or plan payment is and/or has been mailed.
  • Unions from which respondent may have worked or that governed particular trade or craft.
  • Regulatory agencies, including professional or occupational licensing.
  • Names and addresses of relatives and contacts with those relatives, and inquiry as to respondent’s last known address. You are to follow up any leads of any addresses where respondent may have moved. Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces, nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
  • Information about the respondent’s possible death and, if dead, the date and location of the death.
  • Telephone listings in the last known locations of respondent’s residence.
  • Internet at http://www.switchboard.com or other internet people finder.
  • Law enforcement arrest and/or criminal records in the last known residential area of respondent.
  • Highway Patrol records in the state of respondent’s last known address.
  • Department of Motor Vehicle records in the state of respondent’s last known address.
  • Department of Corrections records in the state of respondent’s last known address.
  • Title IV-D (child support enforcement) agency records in the state of respondent’s last known address.
  • Hospitals in the last known area of respondent’s residence.
  • Utility companies, which include water, sewer, cable TV, and electric, in the last known area of respondent’s residence.
  • Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about respondent.

Some of these measures seem somewhat extravagant to me; a Freedom of Information Act request, for example, seems a bit much. Certain other listed measures would be futile due to privacy and HIPAA concerns, in my opinion.

The list, though, does have much to commend it in that it illustrates the extent of information available to find someone. In the era of internet, with Google and the like, the old “I asked his momma and she doesn’t know where he is” just doesn’t cut it anymore. The more extensive the search, the more different measures employed, the more likely it is that the court will find the effort to have been diligent.

I heard an uncontested divorce a while back in which the plaintiff had published process based on a claim that she did not know where the defendant was, and was not to be found in Mississippi. She testified about all the relatives she had talked to who claimed not to know where he was, either. In the course of her testimony, she let slip that the last she had known he was in prison in Texas. I interrupted and asked how long his prison term was, and she responded that he should still be there because he had been sentenced to something like 20 years. I pointed out to the attorney that of all people on the planet a prisoner should be among the easiest to locate, and I continued the hearing to a later date for that purpose. The attorney easily located the man on the internet, and she and her client returned to court a couple of months later and proceeded on personal process. 

My suggestion is that you don’t file that diligent inquiry affidavit unless and until you are satisfied that your client has, indeed, made a bona fide effort to locate the other party. You may wind up doing some of the work yourself.

PUBLICATION PROCESS: THE NIGHTMARE CONTINUES

July 18, 2011 § 1 Comment

Thank goodness most, if not all, lawyers are paragons of mental health.  Otherwise they would regularly be reduced to quivering, sobbing hulks curled in a fetal position on the office hook rug, terrorized by the veritable panoply of unseen legal bugaboos that can bite them, sometimes fatally, in the butt.  These legal viruses are not mere phantasms; they infest your files, lurking there invisible like the dust mites that feast on your body while you sleep.  <Shiver>

MRCP 4(c)(4)

I have already warned you about the dangerous propensity of MRCP 4 publication process to devour entire cases whole. It’s a rule that can transform your case from a delightful, playful puppy dog into an undead, zombie-esque creature that will turn on you and try to drink your blood and eat your skin.

Just when you were growing comfortable with your new-found awareness of Rule 4’s parlous proclivities, here comes something else to worry about.

It’s Article 6, §169 of the Mississippi Constitution, which is entitled, “Style of Process.” It states in pertinent part: “The style of all process shall be ‘The State of Mississippi …’ ”

Given the fact that the MSSC and COA have strictly interpreted Rule 4 as it applies to publication, I think you would be wise to look at your process forms and make sure that every one includes THE STATE OF MISSISSIPPI. Look at MRCP Forms 1C, 1D and 1DD. Notice that each includes the style of the case, which includes the court, county and state, and the language THE STATE OF MISSISSIPPI. Redundant? Perhaps. An additional line you have to pay for? Absolutely. Necessary? You bet; it’s required by our state constitution!

Chancellor George Warner consistently found process inadequate that did not include the requisite language. Over the years, we have grown less vigilant, and now you can find process in the newspaper that lacks the proper style. I predict that someone will raise this point on appeal and that the appellate court will say, “Sorry, you goofed up and violated the Mississippi Constitution; your process is no good, the court had no jurisdiction, and this case is reversed.”

Now uncurl yourself from that fetal ball, brush yourself off, and start fixing your forms. THE STATE OF MISSISSIPPI. Add the words in where they belong. Take pride in the fact that you have avoided being a victim of this peril. And rest easy for now … until the next legal plague that will try to drink your blood and eat your skin.

                                                

Thanks to attorney Leonard Cobb.

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 9 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “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[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

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