Burks v. Burks

• Decision Date: 13 May 1889
• Citation: 6 So. 244,66 Miss. 494
• Court: Mississippi Supreme Court
• Parties: E. W. BURKS ET AL. v. PARMELLA BURKS ET AL

6 So. 244

66 Miss. 494

E. W. BURKS ET AL. v. PARMELLA BURKS ET AL

Supreme Court of Mississippi

May 13, 1889

April 1889

FROM the chancery court of Chickasaw county, first district, HON BAXTER McFARLAND, Chancellor.

The conclusion of the chancellor upon the merits having been affirmed in general terms, it is unnecessary to set out the evidence. The facts touching the matters of practice passed upon by the court are sufficiently stated in the opinion.

Decree affirmed.

W. T Houston, for appellant, E. W. Burks.

The brief of counsel is chiefly taken up with a discussion of the merits of the cause. The bill prays for publication against certain defendants who are not alleged to be non-residents. The affidavit for publication was defective and no valid decree could be based on such publication. This appellant had an interest in insisting that all the parties should be before the court, before a sale was decreed so that the property would bring its value.

Their subsequent appearance in this court could not cure the error for appellant had to bring the case here at great cost in part to cure this error.

W. S. Bates, for appellees, filed a lengthy brief discussing the merits of the controversy, and in support of the decree.

The disposition of the case by this court renders it unnecessary to give this argument.

OPINION

COOPER, J.

We think the conclusion of the chancellor upon the question of title is supported by the evidence.

The publication of notice to the non-resident owners was not supported by any sufficient affidavit. The oath of the attorney to the bill was only to the effect that "the matter and things stated in the bill on his own knowledge are true, and that those things stated on information and belief he believes to be true."

There is nothing stated in the bill to be true to the knowledge of the attorney and nothing stated on his information and belief. While an attorney may make oath for his client in all cases in which an oath is required (Code, 2295), it should be special and show whether the knowledge or information be that of the party or of the attorney. Waller v. Shannon, 53 Miss. 500. Where affidavit is made by an attorney for publication for a non-resident in chancery, it is expressly provided that the form of the oath shall be that the post office is "unknown to affiant, and he believes it is unknown to the complainant or petitioner. " Code, § 1855.

The error...