Ridley v. Ridley

24 Miss. 648 | Miss. Ct. App. | 1852

Mr. Justice Yerger

delivered the opinion of the court.

This suit was commenced by attachment in the circuit court of Madison county, against Moses Ridley, as a non-resident under the provision of the 11th section of the act of June 7th, 1852. Hutch. Code, 801. That section provides, that attachments at the suits of residents of the State shall issue against non-residents, having real or personal estate within it, “under the rules, regulations, and restrictions,” that apply to attachments against absconding debtors, and directs that the like proceedings shall be had in each case.

The 16th section of the same act provides, in the case of absconding debtors, that notice of the suit shall be given for four weeks successively, in some newspaper published within this State, &c. Hutch. Code, 804.

The 15th section declares, that in suits prosecuted by attachment against the estate of persons residing out of the State, the court in which it is pending shall stay proceedings in it for such time as it may think necessary, not less than six months nor more than one year from the return day of the attachment. “ And the court may order notice of the attachment to be inserted in some public newspaper, in the State wherein the defendant is supposed to reside,” &c. Hutch. Code, 804.

In the case before us, notice for four weeks was by order of the court published in a newspaper in this State. No other publication was made, and it is said the judgment is erroneous, because no publication was ordered and made in the State wherein the defendant was supposed to reside."

It is certainly true, that no valid judgment can be rendered against a party, unless he have notice of the suit against him. But this notice need not be actually given, as in many instances constructive notice is substituted in lieu of actual, and this constructive notice may be given in any way the legislature may direct.

In some cases, the law directs publication in a newspaper; in others it directs that notice be posted at the door of the court-house; and in those cases where the judgment is to operate in rem, the statute is frequently silent on the subject of notice. In proceedings begun by attachment against non-residents who do not appear and defend the suit, the judgment only operates in rem, and only binds the property on which the attachment is levied.

In proceedings in rem, the seizure of the thing itself is deemed in 'most instances sufficient notice to all parties interested in it, to come forward and assert their rights, and is substituted in lieu of actual notice. In this class of cases, the legislature sometimes directs a publication of some kind to be made; and, when the law makes such a provision, a judgment rendered without it would be erroneous, and perhaps void. But where no publication is required, a judgment condemning the thing is valid, without any other notice than its seizure according to law. In the statute under consideration, it is provided by the 15th section, that the court in attachments against non-residents, “ may order notice of the attachment to be inserted in some newspaper, in the State or Territory wherein the defendant is supposed to reside.” And it is contended that the word “may” should be construed as “shall;” and that instead of being discretionary, it is mandatory on the court to order this publication.

We cannot adopt this construction of the act.

The statute in which this clause appears, was not hastily adopted. Every word seems to have been deliberately chosen. When a mandate was intended, the appropriate word is used. For instance, in this 15th section, when direction is given in regard to the stay of proceedings,' it is said, “ the court shall stay proceedings.” Again, in the 16th section, when publication is directed against absconding debtors, the statute declares “that it shall be the duty of the court to give notice.” And throughout the whole statute, it will be seen that this phraseology is continued. We must, therefore, conclude that the word “ may ” was used in this instance by design; and that in using it, the legislature intended to leave it discretionary in the court to give the notice there referred to. A failure, therefore, to order and give such notice, does not render the judgment erroneous. This view is strengthened by the fact, that the law does not require the party suing out the attachment to state the residence of the defendant, a fact of which, in many instances, he might be ignorant!

Besides, the seizure of a man’s property, in most instances, would give him more certain notice of the proceedings against it, than he would derive from any newspaper publication. Upon the whole, we think the judgment should be affirmed. We have not intended to decide in this case, that no publication in a newspaper, in accordance with the provisions of the 16th section, was necessary. That question is not before us, as such publication was made in this case.

Note. — A re-argument in this case was prayed for by the counsel for plaintiff in error, but refused by the court.