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).
August 4, 2014 § 3 Comments
It can’t be overstated that the process requirements of MRCP 4 must be satisfied in every particular in order for the court to have personal jurisdiction over a defendant. There is no such thing as “close is good enough.” There are plenty of cases that hold that even if you can prove that the absent party knew of the proceedings, unless that party was properly served with process, the court has no jurisdiction.
MRCP 4(4)(A) allows you to obtain process by publication if you allege by sworn complaint or petition, or by affidavit, that the defendant is a non-resident, or is not to be found in this state, after diligent inquiry.
If the party’s post office address is unknown, you can proceed from there.
But, if you have a last-known address, there are some technical requirements that trip up many lawyers.
R4(4)(C) says expressly: ” … Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant.”
The rule puts the duty on the clerk, but let’s think about that a minute. What is the penalty if the clerk fails to mail or note on the docket? The penalty is that you have to do it over … and over again … until it’s done right. So, what do you do?
I think you have a choice between two ways to go …
- You bring your own extra copy or copies, as many as necessary, along with postage, and help the clerk get those copies into the envelopes and ready to mail, first class, postage prepaid, and then you ask the clerk — politely — to note the fact on the record. The principle being that if you want something done right, you should … well, you know the rest.
- You can whine and complain about how unjust and unfair this is. In the meantime, your client is stuck on the starting line, waiting for you to effect process.
May 9, 2013 § 3 Comments
Attorney Joy Harkness of Legal Services in Meridian posted a comment to a post yesterday that raised an intriguing question — one that you might just bump into in your own practice, particularly with the numbers of migrant workers in our state.
Here’s the query:
“I am looking for assistance in serving process on a resident of Mexico. It is my understanding that process by publication is not valid under the Hague Service Convention if the address if the defendant is known. It is also my understanding that the summons has to be translated into Spanish. I am looking both for advice on the procedure and someone to provide the translation.”
Has anyone else run into this, or has anyone researched this?
I thought this should be in a post, where more folks might see it, rather than in a comment.
We have a notable number of divorces (almost all I.D. divorces) involving Latin-Americans, mostly Mexicans, in this district. They are as routine as any other I.D. divorces, but there are some with problems. I denied one father’s request for visitation because he could not provide a legitimate address, and claimed to have lost his passport. When I asked to see his DL, he produced a fake with a fake address. Since two witnesses had testified that he had said he wanted to take the children back to Mexico with him, I thought that he should be better documented before we did that.
January 25, 2011 § 2 Comments
MCA § 91-7-295 addresses summons or publication for a final account in an estate, conservatorship or guardianship. The entire statute reads as follows:
The final account so presented with the statement as to parties, shall remain on file, subject to the inspection of any person interested. Summons shall be issued or publication made for all parties interested, as in other suits in chancery court, to appear at a term of court, or before the chancellor in vacation, not less than thirty (30) days from the service of the summons or the completion of the publication, and show cause, if any they can, why the final account of the executor, administrator, or guardian should not be allowed and approved. [Emphasis added]
MRCP 4 (c) (4) (B), which governs procedure in “suits in chancery court,” states: “The defendant shall have thirty (30) days from the date of first publication to appear and defend.”
So which is it? Thirty days from completion of publication as the statute says? Or thirty days from first publication as the rule says?
The Order Adopting the Mississippi Rules of Civil Procedure issued by the Supreme Court on May 29, 1981, expressly states that ” … in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control.”
That language would seem to dispose of the matter, but for MRCP 81 (a) (8), which limits the applicability of the rules to matters under MCA Title 91. There is also the fact that the law of executors and administrators is entirely a creature of statute, which requires strict application.
What should you do? I would follow the statute. Doing so does not run afoul of MRCP 4, and actually allows more time for interested parties to act. I would also publish returnable to a day certain more than thirty days after the completion of publication, so there is no doubt on the part of those summoned as to the date by which they are required to act. If you do not follow the statute, you run the risk that a disgruntled party may file suit at a later point attacking your accounting on the ground that the court lacked jurisdiction to proceed.
Thanks to Chancellor Gene Fair for pointing this out.
November 9, 2010 § 4 Comments
We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known. You can read that post here.
When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.
MRCP 4(c)(4)(A) states in part:
… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit.
Your first step is to send your client out into the world to make an effort to find the defendant. Have her call his relatives and ask about where he is. If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet. If he remarried, try to contact his later spouse or children. Suggest she call his former employers or co-workers. Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.”
After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.” You must include that language, or your publication will be a nullity.
The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication. The publication must be substantially in the form of MRCP Form 1-C.
Publication is once a week for three successive weeks in a newspaper published in the county. The publication notice certified by the newspaper is filed in the court file by the lawyer.
The defendant has thirty days from the date of first publication within which to file a responsive pleading.
Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant. There is no case law defining the proof necessary to satisfy the diligent inquiry requirement. In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:
There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry. There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.
In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.
In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.
I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant. In one case, the plaintiff testified that the last she heard her husband was in prison in Texas. I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate. Sure enough, they went back to the drawing board and found him on an internet prisoner locator site. They then got personal process on him and were able to proceed with an uncontested divorce.
The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend. If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate. Don’t take your client’s word for it that she has tried to find him and failed. Make her go through the process of trying.