Hume v. Inglis

• Decision Date: 03 June 1929
• Docket Number: 27925
• Citation: 122 So. 535,154 Miss. 481
• Court: Mississippi Supreme Court
• Parties: HUME et al. v. INGLIS et al

122 So. 535

154 Miss. 481

HUME et al. v. INGLIS et al

No. 27925

Supreme Court of Mississippi

June 3, 1929

(Division B.)

1. QUIETING TITLE. Bill to confirm title can be maintained only where there is no adverse occupancy (Hemingway's Code 1927, section 321).

Under Hemingway's Code 1927, section 321 (Code 1906, section 549), bill to confirm title can be maintained as such only where there is no adverse occupancy of land.

2. QUIETING TITLE. Where land is adversely occupied, bill to confirm title may be maintained as one to cancel clouds. Where land is adversely occupied, bill to confirm title can be maintained only as one to cancel clouds.

3. QUIETING TITLE. Under bill to cancel clouds, where there is adverse occupancy, unknown parties cannot be made defendants. It is not allowable under bill to cancel clouds, where there is adverse occupancy, to make unknown parties defendants as may be done in general bill to confirm.

4. QUIETING TITLE. Where there was adverse occupancy, portion of decree attempting to adjudicate title as against unknown parties was void.

Where there was adverse occupancy, portion of decree attempting to adjudicate title as against unknown parties was void.

5. PROCESS. There must be positive averment of facts showing nonresidence, etc., to uphold process by publication. There must be positive averment of facts showing nonresidence etc., or full equivalent thereof to uphold process by publication; inferences not being sufficient.

6. CONSTITUTIONAL LAW. To satisfy requirements of due process all terms of statute respecting summons by publication must be strictly pursued.

In order to satisfy requirements of due process, all terms of statute respecting summons by publication must be strictly pursued.

7. JUDGMENT. In suit to cancel clouds, where it was not alleged defendant was nonresident, and summons was by publication and defendant did not appear, decree as to him was void. In suit to cancel clouds, where address of defendant C. was given in opening paragraph of bill as in New Orleans, La but there was no allegation that C. was a nonresident, and only process as to defendant C. was summons by publication, and he failed to appear, decree as to him was void for want of jurisdiction.

8. APPEAL AND ERROR. Record in appellate court should place before court reproduction of material pleadings, proceedings, and evidence in trial court.

Purpose of record in appellate court is to place before court an exact reproduction as far as possible of material pleadings, proceedings, and evidence in trial court, so that from first or initial pleading, thence to and including last judgment made in trial court, there may be officially exhibited to appellate court everything material to appeal that was before court in trial, and which was considered and done, or which should have been considered and done by that court.

9. APPEAL AND ERROR. Where no suggestion of diminution was made by either party, and there is nothing in record as certified indicating omission, appellate court presumes record is complete. When record has been duly certified to supreme court by trial court clerk, and no suggestion of diminution is made by either party, and there is nothing in record as certified definitely indicating that something material is omitted, supreme court acts on absolute presumption that record is correct and complete.

10. APPEAL AND ERROR. Where examination of record on appeal shows there is omission of part of proceedings, but there is vital error, reversal will follow.

Where examination of record by appellate court shows that material part of that on which trial court has acted is missing, but it appears from record that there is vital error in pro ceedings, regardless of, and whatever may have been shown by, portions so indicated as missing, reversal will follow.

11. APPEAL AND ERROR. Where record on appeal shows material part is missing, appellate court may affirm case, or reverse, that complete record may be made up by way of another trial. Where examination of record by appellate court discloses that material and indispensable part of that on which trial court has acted is missing, appellate court may affirm case on principle that judgment is presumed to be correct and that missing matters supplied material necessary to support judgment, or it may reverse, that complete record may be made up and placed before appellate court by way of another trial.

12. APPEAL AND ERROR. True copy of map used during trial must be sent up in order to have complete record on appeal. True copy of map or diagram used during trial must be sent up with record on appeal in order to have a complete record.

13. APPEAL AND ERROR. Copy of public plat of which supreme court may take judicial notice should be included in record on appeal, so that case may be examined from transcript itself.

Copy of public plat of which supreme court may take judicial notice should be included in record on appeal, so that whole case may be fully and accurately examined from transcript itself.

Division B

APPEAL from chancery court of Harrison county.

HON. S.E. TRAVIS, Special Chancellor.

Suit by R. C. Inglis and others against John T. Hume and others. From the decree, defendants appeal. Reversed and remanded.

Reversed and remanded.

James F. Galloway and Ross & Backstrom, all of Gulfport, for appellants.

A confirmation suit will be entertained only when the complainant is in possession of the land, or when there is no adverse occupancy. Such is the plain provisions of section 549 of the Code of 1906, being section 306 of Hemingway's Code of 1917.

Gambrell Lumber Co. v. Saratoga Lumber Co., 87 Miss. 773, 40 So. 439; Russell v. Denson, 98 Miss. 59, 54 So. 439.

In order to satisfy requirement of due process, all terms of statute respecting summons by publication must be strictly pursued. There must be positive averment of facts showing nonresidence to uphold process by publication, inferences not being sufficient.

Sec. 3920, Code of 1906; Sec. 2927, Hemingway's 1917 Code; Burks v. Burks, 66 Miss. 494, 6 So. 244; Diggs v. Ingersoll, 28 So. 825; Moore v. Sommerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Ponder v. Martin, 119 Miss. 156, 78 So. 929, 80 So. 388; Burns v. Burns, 133 Miss. 485, 97 So. 814; Mays Food Products, Inc., v. Gloster Lumber Co., 137 Miss. 691, 102 So. 735; Belt v. Adams, 124 Miss. 194, 86 So. 584; McCray v. McCray, 137 Miss. 160, 102 So. 174.

R. C. Cowan and J. L. Taylor, both of Gulfport, for appellees.

Where land is adversely occupied a bill to cancel clouds upon the title is maintainable under Sec. 550, Code of 1906; Sec. 322, Hemingway's Code of 1927.

In a suit against a nonresident defendant to uphold process by publication, it is sufficient that the street number, city and state of such defendant be given.

Argued orally by J. F. Galloway and Oscar Backstrom, for appellant, and by J. L. Taylor, for appellee.

OPINION

GRIFFITH, J.

The bill of complaint in this case is drawn in three aspects: A bill to reform certain deeds of conveyance, to cancel clouds on title, and to confirm title. There was a final decree in which the bill was sustained in all its said three aspects. However, it is distinctly alleged in the bill, and is shown in the proof, that the land in question is in the actual occupancy of one of the defendants, and that this defendant is asserting some claim of right adverse to the complainant.

A bill to confirm title can be maintained as such only when there is no adverse occupancy of the land. Section 549, Code of 1906 (section 321, Hemingway's 1927 Code). When the land is adversely occupied, as is the case here, the most that such a bill can be--but it may be that much--is one to cancel clouds, under which latter bill only named defendants can be made parties. It is not allowable under a bill to cancel clouds and, when there is adverse occupancy, to make unknown parties defendants, as may be done in a general bill to confirm. There was, therefore, no jurisdiction in this case of unknown defendants, and that portion of the decree attempting to adjudicate the title as against unknown parties is void, and must be reversed finally and vacated.

In its aspect as a bill to reform deeds, one of the necessary defendants is H. E....