Delta Ins. & Realty Agency v. Fourth Nat. Bank of Montgomery, Ala.

• Decision Date: 16 February 1925
• Docket Number: 24413
• Citation: 137 Miss. 855,102 So. 846
• Parties: DELTA INS. & REALTY AGENCY v. FOURTH NAT. BANK OF MONTGOMERY, ALA. [*]
• Court: Mississippi Supreme Court

102 So. 846

137 Miss. 855

DELTA INS. & REALTY AGENCY v. FOURTH NAT. BANK OF MONTGOMERY, ALA. ^[*]

No. 24413

Supreme Court of Mississippi

February 16, 1925

Division A

Suggestion of error overruled Mar. 30, 1925.

APPEAL from chancery court of Leflore county, HON. C. L. LOMAX Chancellor.

Suit by the Fourth National Bank of Montgomery, Ala., against the Delta Insurance & Realty Agency. From judgment overruling defendant's demurrer, it appeals. Affirmed and remanded with leave to appellants to answer within thirty days.

Affirmed and remanded.

S. L Gwin and C. B. Snow, for appellants.

By the amended bill of complaint there is sought to be set aside and declared null and void a solemn decree of the chancery court of Leflore county, Mississippi. The entire proceeding in cause No. 3318 was made a part of the bill of complaint.

By section 357, Hemingway's Code, section 597, Code of 1906, it is provided that a complainant desiring to make new parties to his bill may file his amended bill for that purpose in the clerk's office in vacation without leave of the court; and thereupon the clerk shall issue process upon such bill in like manner as if it were an original bill.

By the proceedings in cause No. 3318, above referred to, it is shown that the original bill in said cause was filed in the chancery court of Leflore county, Mississippi on the 7th day of September, 1918, and later having become informed of the fact that other and new parties claimed a right to and an interest in the subject-matter sought to be subjected to the payment of the indebtedness described therein, filed their supplemental or amended bill for the purpose of making the said Fourth National Bank of Montgomery, Alabama, a party to said bill, and, thereupon, the clerk of the court issued process upon the said original bill and upon the said supplemental or amended bill as will be hereinafter shown, and it is upon this process that the decree pro confesso and the final decree sought to be declared null and void, the defendants therein the Fourth National Bank of Montgomery, Alabama, and the Alabama Fidelity Mortgage & Bond Company, having wholly failed to appear, was rendered.

The original and supplemental or amended bill of complaint was in the nature of an attachment suit based upon demands, founded upon an indebtedness of the Alabama Fidelity Mortgage & Bond Company, a nonresident of the state of Mississippi, by which it was sought to subject an indebtedness of the Delta Insurance & Realty Agency and Shelby S. Steele, resident defendants, to the said non-resident defendant, or to the Fourth National Bank of Montgomery, Alabama, also, a non-resident, to the payment thereof. This proceeding was had under the provisions of sections 293, 294 and 297, Hemingway's Code, sections 536, 537, and 540, Code of 1906, and we submit was in strict and in entire conformity with the provisions thereof.

Section 293, Hemingway's Code, section 536, Code of 1906, provides that the chancery court shall have jurisdiction of attachment suits based upon demands, founded upon any indebtedness . . . against any non-resident, absent or absconding debtor who has lands or tenements in this state, or against any such debtor or persons in this state who have in their hands effects of or are indebted to such non-resident, absent or absconding debtor. Section 297, Hemingway's Code, section 540, Code of 1906, provides that such non-resident, absent or absconding debtor shall be made a party to such suit by publication of summons as in other cases.

Section 2927, Hemingway's Code, section 3920, Code of 1906, provides that non-resident and unknown defendants may be summoned by publication and provides that if a defendant in any proceeding in the chancery court be shown by bill or petition sworn to or by affidavit filed to be a non-resident of this state, and post office of said defendant be stated in the bill, the clerk, upon the filing of the bill, shall prepare and publish a summons to such party to appear and defend. This section goes further and gives the form of such publication and further provides that upon proof of publication of such summons for three weeks in some newspaper published in the county and of the mailing of a copy of the summons to the defendant at his post office address, the defendant may thereafter be proceeded against as if he had been personally served with a summons. It is under this section of the code that process was issued to the defendant, Fourth National Bank of Montgomery, Alabama, the complainant in the court below. By reference to the court docket in cause No. 3318, and the complete record of the proceedings in said cause, it is shown that on November 10, 1919, first publication of summons was made in the Daily Commonwealth, a newspaper published in the city of Greenwood, Leflore county, Mississippi, to the defendants Alabama Fidelity Mortgage & Bond Company and the Fourth National Bank of Montgomery, Alabama, and that said summons was mailed to each of the nonresident defendants, to their respective post office addresses, together with a copy of the supplemental bill of complaint attached to each summons, and that summons was, also, issued for the Delta Insurance & Realty Agency and Shelby S. Steele, resident defendants and garnishees, all being returnable to the March, 1920, Term of the chancery court of Leflore county, Mississippi, and on March 13, 1920, proof of the publication thereof for three weeks in said newspaper was filed. It is our contention that the proceeding followed was in strict conformity to the statute and we know of no other method in which the defendant Fourth National Bank of Montgomery, Alabama, could have been made a party defendant in said cause.

After having made every effort known to the statutes to get the Fourth National Bank of Montgomery, Alabama, as well as the defendant, Alabama Fidelity Mortgage & Bond Company to come into court and assert their rights, but without success, at the October, 1920, term of the chancery court, a decree pro confesso was entered, and on October 22, 1920, the final decree above mentioned was entered in said cause. It will be noted that by this decree the court below decreed the complainant was entitled to the relief prayed for and that the Alabama Fidelity Mortgage & Bond Company is indebted to the complainants and that the resident defendants, the Delta Insurance & Realty Agency and Shelby S. Steele, have by their respective answers as garnishees admitted an indebtedness due and owing by them to the non-resident defendant.

We submit that the court had entire jurisdiction of the parties. The defendants had been made parties under the exact provisions of the statutes. If the appellee herein was not satisfied, it had its remedy. The legislature, in its wisdom, in providing for process by publication to non-resident defendants, provided by sections 330 and 331, Hemingway's Code, sections 570 and 571, Code of 1906, that non-resident defendants against whom a decree had been rendered on proof of publication only, might come into court at any time within two years and petition the court to be allowed to plead, answer or demur to the bill filed against them, and upon such petition and the giving of security for costs, such non-resident defendant shall be permitted to so plead, answer or demur to the bill of complaint. But the appellee has not elected to pursue this remedy provided for it, although at the time of the filing of their original bill, this plain and adequate remedy was open to it, but have now permitted the two-year period to run against them, and the decree rendered in said cause to become final against the resident defendants, appellants, the Delta Insurance & Realty Agency and Shelby S. Steele, who now have no alternative but to pay the judgment which stands against them.

We earnestly submit that the entire proceeding in cause No. 3318 in the chancery court of Leflore county, Mississippi, was entirely regular; that the appellee, the defendant therein, was before the court; that the process was in conformity to statute; that the court had jurisdiction over the subject-matter of the decree rendered, and the parties to said cause to the extent thereof; that the court had full authority to render the same; that the demurrer of appellee in the court below to the bill of complaint ought to have been sustained, and that this cause ought to be reversed and the bill dismissed.

Gardner, Odom & Gardner, for appellee.

There is but one question involved in this case, and that is a very simple question. Did the chancery court of Leflore county, Mississippi, have any authority to render any decree against appellee in the suit of Gwin & Mounger, or, in other words, was the decree which was rendered in that suit against appellee a valid and binding decree?

It will not be denied that neither appellee nor the notes in controversy were ever within the jurisdiction of the chancery court of Leflore county, Mississippi. In other words, the chancery court of Leflore county, Mississippi, never had any sort of jurisdiction of either the res or the person of appellee. It is elementary that before any court can acquire any sort of jurisdiction to render a decree which is valid and binding as against a defendant, the court must have jurisdiction of either the res or the person of the defendant. In this case, the court never had jurisdiction of either. The validity of this whole proceeding depends upon proof of publication.

Among the various cases decided by this court is the case of Commercial Bank v. Martin, 9 S. & M. 621, in which the court holds: "An order, judgment or decree is void when rendered by a court which has no jurisdiction of the subject-matter or the parties. Both must concur to...