| Ala. | Jan 15, 1847
The first and second assignments of error relate to the same matter, and will be considered together. In the case of a non-resident defendant, publication in the mode pointed" out by the statute, in a newspaper within the State, and also posted up at the court house door, is equivalent to an actual service of subpoena. In addition, the 40th rule of chancery practice requires, that when the residence of the defendant is stated, either in the bill or the affidavit to obtain the order of publication, the register shall enclose to him by mail, within forty days from the time of making the order, a copy of the order posted up at the court house. It does not appear from the recital of the facts stated by the chancellor upon rendering his decree, that this has been done, and without this, there was no authority for the rendition of the decree pro confesso, as it appears, both in the bill and in the affidavit, that the defendant resided near Columbus, in the State of Mississippi. The rules for the government of the practice in the chancery courts, are made by virtue of authority given to the courts of chancery by statute, (Clay’s Dig. 354, § 49,) with the approbation of this court, and these rules, when made, must have the force of law. In many instances, where there has been an omission, or failure to comply, a presumption of waiver may arise from a failure to make the objection in the court below. But that does not apply here, as there has never been an appearance, and consequently there can be no waiver.
The objection that it does not appear that two days elapsed between the report of the master and its confirmation, cannot avail the present defendant. Being in contempt, he was not entitled to notice, or to appear before the master without a special order from the chancellor, and could not be prejudiced by the matter complained of. [Mussina v. Bartlett, 8 Port., 277" court="Ala." date_filed="1838-06-15" href="https://app.midpage.ai/document/mussina-v-bartlett-6529419?utm_source=webapp" opinion_id="6529419">8 Porter, 277.]
The case of Arnold v. Sheppard, 6 Ala. R. 290, is in point,
The omission to execute the bond which the statute requires, previous to obtaining a decree against a non-resident defendant is' a fatal error. [Erwin v. Ferguson, 5 Ala. Rep. 165; Clay’s Dig. 353, § 45.] Nor is this as supposed, a matter which may be cured by an amendment in the court below.
The objection to the jurisdiction, because the bill was not exhibited in the proper county, cannot prevail. Waiving the consideration of the question, whether the objection can be taken by one in contempt, who has never appeared, or answered the bill, we are clear in the opinion that the bill was properly filed in the county where the defendant resided, and by whom the suit in Lowndes county was instituted. The decision in Shrader v. Walker, 8 Ala. 244" court="Ala." date_filed="1845-06-15" href="https://app.midpage.ai/document/shrader-v-walker-6502591?utm_source=webapp" opinion_id="6502591">8 Ala. Rep. 244, did not intend to affirm that the suit must be brought in the county where the suit sought to be enjoined was pending, when that was not the residence of the defendant in chancery instituting such suit. [See Eldridge v. Turner, and Freeman v. McBroom, et als. at the present term.]
Whether in such a case a decree could be rendered against a non-resident for the excess of the demand of the complainant, after extinguishing that of the defendant, is a question not raised by the assignment of error.
Let the decree be reversed and the cause remanded.