Mays Food Products, Inc. v. Gloster Lumber Co.

• Decision Date: 02 February 1925
• Docket Number: 24599
• Court: Mississippi Supreme Court
• Parties: MAYS FOOD PRODUCTS, Inc., v. GLOSTER LUMBER CO. [*]

102 So. 735

137 Miss. 691

MAYS FOOD PRODUCTS, Inc., v. GLOSTER LUMBER CO. ^[*]

No. 24599

Supreme Court of Mississippi

February 2, 1925

Division A

JUDGMENT. Declaration must aver that defendants served by publication are nonresidents or not to be found in state to support default judgment.

Under section 3920, Code of 1906 (section 2927, Hemingway's Code), it is essential that the sworn declaration aver that the defendants are nonresidents of the state or not to be found therein in order to sustain a judgment by default upon constructive process by publication in a newspaper, and when this averment is not in the declaration or affidavit a judgment by default is void.

HON. R L. COBBAN, Judge.

APPEAL from circuit court of Amite county, HON. R. L. CORBAN, Judge.

Action by the Gloster Lumber Company against the Mays Food Products Incorporated. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Case reversed and remanded.

Mayes &amp Mayes, for appellant.

Lowrey & McLain, for appellee.

Briefs in this case not available to the reporter.

OPINION

McGOWEN, J.

The Gloster Lumber Company filed its declaration in the circuit court of Amite county against the Mays Food Products, Incorporated, to enforce a materialman's lien. There is a bill of particulars attached, and judgment by default was entered on constructive process, having amended their declaration and made William Pierce Oneal, trustee in bankruptcy of the defendant, Mays Food Products, Incorporated, a party to the declaration. There was constructive process by publication, and we quote the only references to the post office address or residence of defendants found in the sworn declaration, there being no separate affidavit:

"Mays Food Products, Incorporated, represented by L. O. Mays, president, a corporation chartered under the laws of the state of Maine, but operating in the state of Mississippi, and having home office at North Peters street, New Orleans, La., to which notice of summons can be communicated, and William Pierce Oneal, trustee, whose address is in care of Marine Bank & Trust Company, New Orleans, La."

And again: "The defendant, said William Pierce Oneal, whose address is in care of Marine Bank & Trust Company, New Orleans, La., and said trustee now represents said Mays Food Products, Incorporated; its affairs having been confided to him by said court" (referring to the court of bankruptcy).

And again: "The petitioner prays that publication be made and had for the defendant, Mays Food Products, Incorporated, at their usual place of business, North Peters street, New Orleans, La., and for William Pierce Oneal, trustee, at usual place of business, to-wit, care Marine Bank & Trust Company, New Orleans, La." (Italics ours.)

This being a judgment by default, it is assigned for error that there was no process because there is no affidavit as required by the statute as to the post office address of the Mays Food Products, Incorporated, or of William Oneal, trustee, set out in the affidavit, nor is it alleged that the defendants were nonresidents of the state of Mississippi, or not to be found therein on diligent inquiry.

It will be noted that William Oneal is the main defendant in the action; the ...