Birindelli v. Egelston, 52936
| Decision Date | 07 October 1981 |
| Docket Number | No. 52936,52936 |
| Citation | 404 So.2d 322 |
| Parties | James Benson BIRINDELLI v. Donald Michael EGELSTON and Lynette Joyce Egelston. |
| Court | Mississippi Supreme Court |
Eaton, Cottrell, Galloway & Lang, John Edgar Johnson, III, Ann Bowden-Hollis, Gulfport, for appellant.
Jim W. Rose, Gulfport, for appellee.
Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
Donald Michael Egelston and Lynette Joyce Egelston initially filed a petition for adoption of Brooke Kay Birindelli, Tyler Anne Birindelli, James Michael Birindelli and David Benson Birindelli in the Chancery Court of the Second Judicial District of Harrison County. James Benson Birindelli, a non-resident, was allegedly served with process by mail and publication.
Two days before the final decree of adoption, the lower court granted petitioner's motion to transfer the cause to the Chancery Court of the First Judicial District of Harrison County.
Mr. Birindelli made no appearance and the final decree of adoption was entered on May 16, 1980, based on abandonment by the father. Birindelli thereafter petitioned to set aside the adoption decree, and a hearing was held on the motion. The lower court denied the petition to set aside the adoption decree.
Aggrieved, Birindelli appeals from the dismissal, assigning six errors. We are of the opinion that we need address only the assignment concerning the jurisdiction of the court because it is dispositive of the suit.
The threshold issue is whether or not the trial court had jurisdiction of James Benson Birindelli, the adoptive father of Brooke and the natural father of Tyler Anne, James Michael, and David Benson. The petition was mistakenly filed in the second judicial district and process was issued from and returnable to the second judicial district. Even though the cause was transferred prior to the rendition of the final adoption decree, there is no evidence that process was ever made returnable to the proper district.
It is the well settled rule that service of process on a non-resident defendant is jurisdictional requiring strict compliance with statutory procedures. Mosby v. Gandy, 375 So.2d 1024 (Miss.1979). We are of the opinion the failure to make service of process returnable to the proper district rendered service of process fatally defective. This being so, jurisdiction was lacking; and the final adoption decree is therefore void. Failure to make process returnable to the appropriate district in a county is a jurisdictional defect, for we held in Rogers v. State, 266 So.2d 10, 16 (Miss.1972), that "when two judicial districts are created in a county, the effect is the same for jurisdictional purposes as if they were two counties." Citing with approval Isabel v. State, 101 Miss. 371, 58 So.1 (1912); Passons v. State, 208 Miss. 545, 45 So.2d...
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Atterberry v. State
...they stand for the proposition that the fact that service actually occurred can be challenged. The defendant also cites Birindelli v. Egelston, 404 So.2d 322 (Miss.1981). In Birindelli, a nonresident father was allegedly served with process by mail and publication for an adoption hearing. W......
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...to notice of the pending adoption. Humphrey cites the cases of Krohn v. Migues, 274 So.2d 654, 657 (Miss.1973) and Birindelli v. Egelston, 404 So.2d 322, 324 (Miss.1981) for the proposition that "without inclusion of the natural father as a party, the Final Decree of Adoption is Void." Cont......
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Boone v. Boone, 2010–CA–01268–COA.
...of process are to be strictly construed. Kolikas v. Kolikas, 821 So.2d 874, 878 (¶ 16) (Miss.Ct.App.2002) (citing Birindelli v. Egelston, 404 So.2d 322, 323–24 (Miss.1981)).DISCUSSION ¶ 17. Blake's assignments of error (1), (2), (3), and (4) assert that the Judgment of Contempt and Other Re......
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...to make service of process returnable to the proper district rendered service of process fatally defective ...." Birindelli v. Egelston , 404 So. 2d 322, 324 (Miss. 1981). "[W]e held in Rogers v. State , 266 So. 2d 10, 16 (Miss. 1972), that ‘when two judicial districts are created in a coun......