Burns v. Burns, 97 So. 814

97 So. 814 | Miss. | 1923

ANdersoN, J.,

delivered the opinion of the court.

Appellee, Mrs. Alma Burns, filed her hill in the chancery court of Prentiss county against appellant, her husband, J. Sut Burns, for divorce on the ground of habitual cruel and inhuman treatment. There was a decree rendered by the trial court granting the divorce, from which appellant prosecutes this appeal.

Appellant neither appeared in person nor by counsel in the court below. His first appearance in the cause was after the final decree was rendered for the purpose of prosecuting this appeal. As a ground for reversal the appellant contends that the decree is void because he was never made a party defendant and brought into the trial court in the manner provided by law. The facts necessary to understand the question were as follows:

The bill in the cause was filed on the 21st of August, 1922. It was alleged therein that appellant was a resident citizen of Prentiss county in this state but temporarily domiciled at Clarksdale in Coahoma county in this state. Summons was issued for appellant on the 22d of August, 1922, to Coahoma county. The return of the sheriff of that county showed that after diligent search .and inquiry he had been unable to find appellant in said county. This return was filed with the clerk of the chancery court of Prentiss county on August 31, 1922. Thereafter the original bill was amended by adding, after the allegation that appellant was a resident citizen of Pren-tiss county, the following: “Now sojourning out of the state in Memphis, Tennessee, so that process cannot be had on him.” And the prayer of the bill was amended by inserting at the appropriate place the following: “And if process cannot be served that publication be made for said defendant.” Process failing to reach appellant either in Coahoma or Prentiss counties, publication based on the bill so amended was .made for him as a non-resident under the pretended authority of sections 3920 and 3921, Code of 1906 (Hemingway’s Code, sections 2927 and 2928).

At the return term the appellant did not appear in the cause either in person or by attorney; appellee proceeding on said affidavit and publication of notice as sufficient to bring appellant into court, had the cause tried and obtained the decree appealed from. On the trial it was shown that said statute, so far as the publication of the notice for appellant is concerned, Avas complied with, and in addition it Avas shown beyond question that appellant had actual notice of the pendency of said cause, and of the term of court at which it Avas triable. Said statute is specific. There is no ambiguity as to hoAV a non-resident- shall be brought into court. In substance it simply provides that, in order to bring in a non-resident defendant, the complainant as the first step must either in his sworn bill or in a separate affidavit make oath that defendant is a nonresident of this state, or not to be fouiid therein on diligent inquiry, and the post office address of such defendant if known, and if not known, so stating. This statute is jurisdictional. It is one of the methods provided by law to meet the requirements of the due process clause of the Constitution. The SAVorn bill upon which the publication of notice in this case Avas based stated that appellant was a resident citizen of Prentiss county, Miss., not of Memphis, Tenn.; that he was temporarily sojourning in the latter city, but failed to state his post office address. Under numerous decisions of this court a strict compliance with this statute was fundamentally necessary. Stating that a, defendant is temporarily sojourning in another state is very far from stating that he is a resident of that state; and, furthermore, stating that a defendant is temporarily sojourning in a certain city in another state is not equivalent to a allegation that that city is his post office address, although that might be a reasonable inference. A positive unequivocal statement of his non-residence and post office address is necessary. Ponder v. Martin, 119 Miss. 156, 80 So. 388, 78 So. 929; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll (Miss.), 28 So. 825.

The fact that appellant had actual notice of the pen-dency of the cause and whether it was due to be tried did not make him a party. That fact did not help the jurisdiction of the court, 9 R. C. L., sections 209, 210, pp. 409, 411, inclusive.

If a defendant does not voluntarily appear to a cause against him he cannot he gotten into court except in the manner laid down by law. He 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.

We therefore hold that the decree in this cause is void. Appellee has a motion in this court for an order allowing her a reasonable amount for attorney’s fee, incurred by her both in the court below and in this court in defending this cause, and in support of that motion she has filed affidavits. This court has nothing to do with the allowance of temporary alimony for services of appellee’ counsel in the court below, but only with such allowances in this court. We are of opinion, under the proof adduced on the subject, that the sum of seventy-five dollars would be a reasonable solicitor’s fee for the seiwices of appellee’s counsel in this court. Said allowance of seventy-five dollars is therefore ordered, and the cause is reversed and remanded.

Reversed and remanded.