Curry v. Falkner

51 Ala. 564 | Ala. | 1874

B. F. SAFFOLD, J.

Error is shown in the decree pro confesso against the non-resident, Curry. The proper execution of an order of publication is specifically sét out in the 22d rule of chancery practice. R. C. p. 826. One of the essential requisites is, that a copy of the order shall be sent by mail to the defendant, where his residence is shown by the bill or affidavit, within twenty days from the making of said order. The authority to make the order is dependent upon the affidavit of the complainant, or his agent, which must state, not alone the affiant’s belief of the non-residence of the defendant, but of his age, whether over or under twenty-one years, and his residence, or that they are unknown. The affidavit in this case recites, that the affiant “ knows from reputation, and believes, that he (Curry) settled in the State of Texas, and has ever since remained there,” &c.; but says nothing more definite as to his place of residence, or whether it is known to him or not. Neither the order of publication, nor the decree pro confesso, presents any evidence that notice was attempted to be given to Curry by mail, or that his place of residence was unknown. The defendant, Curry, was entitled to notice by mail, if the complainant knew his place of residence. If it was not known, it ought to have been so stated in the affidavit. The 22d rule requires it.

Whether Curry was an indispensable party or not, he was a proper party; and the complainant having elected to join him, he cannot now avoid the consequences of a defective service. Batre v. Auze, 5 Ala. 173.

The testimony is indefinite, and contradictory. It is not shown whether Kent made a deed to Curry or not. But perhaps the presumption would be, that he did. Wise says, he was surety on both of the notes given by Curry to Kent for the purchase-money, and that each was for $1,200, one of which Curry exhibited, and surrendered to him as paid, when he purchased from him; and the other he subsequently paid by agreement with Curry. If this be so, his claim to be considered a purchaser without notice is made out, as there is no evidence to the contrary. But Kent, agreeing with him in respect to the second note, says, that the first mentioned was for $1,000, which he gave up to Curry in lieu of two others each for $500 executed under an agreement between them. The inference from his testimony is, that this first note of $1,000 was without surety, though he does not expressly say so. What has become of the other $500 note? What did Wise do with the $1,200 note turned over to him by Curry, in proof of its payment? As the decree must be reversed for want of proper notice to the defendant, Curry, perhaps, on another hearing, the testimony may be made more satisfactory.

The decree is reversed, and the cause remanded.