Beavers v. Davis

19 Ala. 82 | Ala. | 1851

DARGAN, C. J.

Without entering into a particular statement of the facts alleged in the bill, we deem it sufficient to say that it contains equity, and is properly filed under the act of the 5 th of February, 1846. But as Josiah Dunn, Archibald Dunn and James Parker and wife, are non-resident defendants, and have not answered the bill, and service upon them has been perfected by publication only, to sustain the decree, the record must show that the publication was made in the manner pointed out by the 40th rule of our chancery practice. We have held that if the decree itself showed that proof was made of those facts required to perfect the service, we would not reverse, because the evidence itself was not contained in the record; but when the evidence itself is not contained in the record, and the recitals in the decree do not show that such proof was made, the decree cannot be sustained.—Hartley v. Bloodgood, 16 Ala. 233. The record in this case neither contains the evidence of publication, nor does the decree shows that evidence of the facts necessary to constitute good service was adduced in the court below.

2d. The chanceller also erred in proceeding to a final decree without requiring of the complainant to give bond, touching the restitution of the money sought by the bill to be recovered, should the absent defendants appear and petition the court to have the cause reheard. We have invariably held, that when the interest of an absent defendant is affected by the decree, and he has not been personally served with process of subpeena within this State, nor voluntarily submitted to the jurisdiction of the court, it is erroneous to render a final decree without the bond required by the act of 1805. — Clay’s Dig. 353.

The decree must be reversed, and the cause remanded.