Moore v. Williams, 44 Miss. 61

Moore v. Williams

44 Miss. 61 | Miss. | 1870

SlMRALL, J.:

The single point for solution is whether the plaintiff in error, C. L. Moore, who was sued in attachment as a nonresident, had legal constructive notice of the suit. The writ was executed by a levy on the lands of the debtor, and notice was given by posting advertisement at five public places, and by a notice from the clerk, sent through the mail, or deposited in the post-office for transmission, addressed to him at Osceola, Arkansas.

Under the act of 1852, § 11, attachments against non-resi-deht-s shall be subject “ to the same rules, regulations, and restrictions ” that apply to attachments against absconding debtors. The sixteenth section provides that notice shall be given to absconding debtors, by -four weeks’ publication in some newspaper published in this state. By the fifteenth" section, against non-residents, the court “may” order “notice” to be inserted in some newspaper published in the state where the defendant is supposed to reside. The act of 1852 (on the point under consideration) is substantially embraced in the 19th article of the Oode of 1857, p.-378. This article, with the act of 1862, is all the statute, law applicable to -notice - to defendants in attachments. The article enjoins-in all cases where the debtor has not'bee'n-fouñd of summoned,” that notice shall be inserted for four weeks in some newspaper most convenient to the court. This applies as well/to non-resident as to absconding or fraudulent debtors; it-includes every debtor described in the seven enumerations of *64causes of attachment in the second article of the attachment law. The only distinction is to be found in the proviso to the nineteenth article, to the effect, that-ihe court “ may,” if it think proper, order publication notice to the “ non-resident,’’ in some newspaper where he is supposed to reside. In Ridley v. Ridley, 24 Miss., 656, it was held, that the word “ may,” in a similar provision of the act of 1852, meant to refer such publication to the discretion of the court; that it should not be construed as imperative; and, therefore, a notice published in a newspaper in the state was sufficient; although the court had not directed a publication in the state where the debtor was supposed to reside. There can be no doubt that the proviso to the nineteenth article refers such publication to the discretion of the court. The words are, the court “may, if it be thought proper,” etc. In Patrick v. Dillard, at this term, we declared, that, taking the attachment law in the Revised Code in connection with the act of'1862, the proper construction was, that if the defendant debtor was not found or served, then there must be the newspaper notice published, as prescribed in the nineteenth article ; and if the debtor was a non-resident, that fact must be stated, as well as his place of residence, if it can be ascertained, and notice must be, by the clerk, addressed to him at his post-office.

Constructive notice was not given to the plaintiff in error, as required by law. It follows that the judgment must be reversed,, and cause remanded.