Cudabac v. Strong

• Decision Date: 26 May 1890
• Citation: 7 So. 543,67 Miss. 705
• Court: Mississippi Supreme Court
• Parties: H. M. CUDABAC v. J. C. STRONG, ASSIGNEE

7 So. 543

67 Miss. 705

H. M. CUDABAC v. J. C. STRONG, ASSIGNEE

Supreme Court of Mississippi

May 26, 1890

FROM the circuit court of Jackson county, HON. S. H. TERRAL Judge.

The facts are sufficiently stated in the opinion.

Section 1857, code 1880, the effect of which is discussed in the briefs and in the opinion, is as follows:--

"If such summons shall be served on such absent party by delivery to him, or if a corporation, to some officer or agent thereof, of a copy thereof, at least ten days before the return day, and if proof of such service shall be made, by filing in the office of the clerk, who issued it, such summons, with the acknowledgment of said defendant, endorsed or annexed to it, that such summons was served on him [or the like acknowledgment by an officer or agent of such corporation made defendant], and proved to be subscribed by such defendant [or officer or agent of the corporation], by the affidavit of some one annexed thereto, or shown to have been served, by one who delivered such copy, or knows of such delivery, and shall make affidavit of such delivery before some officer in the state or county where such service was made authorized to administer oaths, or before any such officer in this state, who shall certify such affidavit of service, which shall be filed among the papers in said proceedings with such summons, or proved in open court, by parol or other testimony, to have been duly served on such defendant, and recited in a decree of said court to have been so proved, that shall be in lieu of a publication of such summons, and shall authorize further proceedings against such defendant, as if he had been duly summoned in this state."

By § 2438 it is provided that publication of notice for non-resident defendants in attachment shall not be necessary if notice is served in the manner provided for in the section just quoted, but the proof of service of such notice is made as effectual as if the defendant had been served with a summons.

Affirmed.

T. W Brame, for appellant.

This suit was based upon the provisions of § 2438, code 1880 in connection with § 1857, the chancery court law to which it refers. These statutes have been fully complied with. But it is contended that the personal judgment is void. If this court adopts the view of the majority of the judges of the supreme court of the United States, as expressed in Pennoyer v. Neff, 95 U.S. 714, this appellant must fail.

But this judgment was not rendered upon publication only. The defendants were personally served in accordance with § 1857. This conforms to the requirement of personal service it being the intention of the legislature that a non-resident defendant shall have actual notice and his day in court. I refer the court to the able dissenting opinion in the above cited case.

C. H. Wood, for appellee.

The personal service of a non-resident under § 1857 is in lieu of publication, and can have no greater efficacy. To sustain a personal judgment there must be either appearance or personal service of process made within the territorial limits of the state where suit is brought. Rorer on Inter-State Law, 22; Pennoyer v. Neff, 95 U.S. 714; Tabler, Crudup & Co. v. Mitchell, 62 Miss. 437; Cooley Con. Lim., 151, 499.

Attachment is strictly a proceeding in rem and, without personal service, only the property levied upon can be subjected under the judgment. Ridley v. Ridley, 24 Miss. 648; Bias v. Vance, 32 Ib. 198; Chew v. Randolph, Walker, 1; Edwards v. Toomer, 14 S. & M. 75.

OPINION

WOODS, C. J.

This was ejectment brought by appellant against appellee. The appellant had, prior to the ejectment suit, sued out an attachment against Danner, McMillon and Robertson, who were all non-residents of this state. The attachment writ was levied on certain lands of defendants, but not on the lands embraced in the ejectment suit. Notice was given the non-resident defendants as prescribed in sections 1857 and 2438, code of 1880. The defendants making no appearance in the attachment proceedings, a personal judgment was taken against all of them for the amount of Cudabac's demand, and a special judgment was likewise entered condemning the lands levied upon to be sold to satisfy the debt due. The lands levied upon were accordingly sold, but the proceeds of this sale failing to satisfy the judgment, Cudabac had writs of fieri facias subsequently issued, which were levied upon this land and the same was sold, Cudabac becoming the purchaser thereof at such sale, and receiving the sheriff's deed thereto.

The consideration of this deed, and of the general judgment upon which it rests, opens the field of the controversy. The questions are: Did the court, in the attachment suits, acquire jurisdiction of the persons of the non-resident defendants so as to authorize the rendition of a personal judgment against them? And was the general judgment, rendered against them upon notice only as prescribed in sections 1857 and 2438 of the code, a valid judgment?

It might be sufficient to say that section 2467 seems to have been overlooked entirely by counsel, and that this section when...