Moore v. Summerville

• Decision Date: 07 April 1902
• Citation: 31 So. 793,80 Miss. 323
• Court: Mississippi Supreme Court
• Parties: CHARLES Q. MOORE v. ALICE SUMMERVILLE ET AL

31 So. 793

80 Miss. 323

CHARLES Q. MOORE v. ALICE SUMMERVILLE ET AL

Supreme Court of Mississippi

April 7, 1902

FROM the chancery court of, first district, Panola county. HON JAMES C. LONGSTREET, Chancellor.

In 1896, one Cannon died intestate, seized and possessed of the lands in controversy in this suit, leaving as his heirs his wife and children; Alice Summerville being one of the children. Appellant, Moore, purchased at execution sale the interest of one of the heirs, and in January, 1898, filed his bill in the chancery court of Panola county against the other heirs, seeking to have the land sold for partition. Process was served on all the defendants except Alice Summerville who was a non-resident. At the February term, 1898, there was an order of court entered as follows: "It appearing to the court by an averment in the bill, filed and sworn to that Alice Summerville, a defendant therein, is a non-resident of the state, and that the postoffice of said defendant is the city of Chicago, state of Illinois, and that she is a resident of said city, it is ordered and adjudged that publication be made." Upon this order, publication was made, commanding her to appear on the second Monday of May, 1898. At the August term, 1898, a pro confesso decree based on said publication was rendered against her. At the February term, 1899, a final decree was rendered, ordering the sale of the land. The land was accordingly sold, and purchased by appellant, Moore, of which report was made, and the sale confirmed. In November, 1899, appellees filed their bill in this case against Moore, in the nature of a bill of review, seeking to have the proceedings under which Moore bought the land reviewed and set aside, with a prayer for a writ of injunction restraining Moore from interfering with the possession of complainants. The injunction was granted. Subsequently, at the instance of Moore, a writ of possession was issued on the decree in the partition suit confirming his purchase of the land, commanding the sheriff to put Moore in possession of the property. Complainants then procured in their suit against Moore--the bill of review case--a writ of injunction restraining Moore and the sheriff from interfering with complainants' possession or rights in the lands. On motion of defendant, Moore, at the February, 1900, term of the court, the injunction was partially dissolved, being only retained in so far as it prohibited Moore from disposing of the land, and the decree modifying the injunction awarded damages against the complainants in the sum of $ 50 for attorney's fees. Complainants amended their bill, and defendant, Moore, demurred to the bill, as amended. The demurrer being overruled, Moore declined to plead further and a decree was rendered setting aside the proceedings in the original cause, back to the original bill for partition and complainants were authorized to answer that bill, which they did; and the original cause came on for hearing at the August, 1900, term of the court on that bill and answer, and proof taken. On the final hearing a decree was rendered setting aside Moore's title and dismissing his bill. From that decree he appealed to the supreme court, and complainants prosecuted a cross-appeal from the decree against them for damages.

Affirmed on appeal and cross-appeal.

Boothe & Boothe and Miller & Miller, for appellant.

We take up the alleged errors in the face of the record in the order in which they are presented in the bill of review, and answer the same, we think, conclusively.

It is alleged that the order for the publication for the defendant, Alice Summerville, was made without any legal showing that she was a non-resident, and that notice to her was void. We reply that this is not an error apparent upon the face of the record. It does not show that a proper showing was not made to the court of non-residence, etc., upon which publication was ordered. The order for publication was by the court, and is presumed to be correct and to have been predicated upon legal and satisfactory evidence to the courts of the facts necessary to warrant the order. Every presumption will be indulged in favor of the correctness and validity of this order of the court, as of any other judgment or decree until its invalidity or facts which vitiated it permanently appear. Westbrook v. Thompson, 58 S.W. (Tenn.), 223. Code of 1892, § 3421, simply directs what shall be sufficient evidence to warrant the clerk, a ministerial officer, in vacation, to make publication when the bill or petition is filed, and was never designed to preclude the court from ordering, in term time, publication upon other and different evidence infinitely more satisfactory to the court, perhaps, than a bill sworn to or an affidavit. When in the progress of the cause, the fact develops that a party defendant is a non-resident and ought to have notice by publication, and who may have been through ignorance or mistake, alleged in the bill to be a resident (as was the fact in Moore's bill), then the court may order publication without the filing of a formal, written affidavit, and upon oral proof infinitely more satisfactory to the court of the facts upon which to predicate the order of publication than an affidavit or sworn bill would afford. The court in term time, we think, would of its own volition, order publication of notice to a non-resident appearing to be a proper party. Notice under the statute was filed that oral proof would be taken in open court, and it will be presumed in favor of the order of the court that proper and satisfactory proof was made of the non-residence of Alice Sumruerville. Essig v. Lower, 120 Ind. 239.

It may be claimed by counsel for appellees that in the order of the court directing publication of notice to Alice Summerville, because of the recital therein, that it appeared from the allegations of the bill that she was a non-resident, etc., when it was so alleged, that therefore the order is invalid. To this we reply that such recital constituted no part of the order; it was unnecessary and mere surplusage.

"We do not understand that the reasons given for a finding are judgments. The point decided is the thing fixed by the judgment, but the reasons are not." Burke v. T. M. W. Co., and LaFarge, 12 Cal. 408; Powell on Appellate Proceedings, sec. 29, p. 54; Shepherd v. Nabors, 6 Ala. 631; Freeman on Judgments (3d ed.), § 2; Ib. § 249; Davidson v. Carroll, 23 La. Ann., 108; Bryant v. Rosenbaum, 62 Miss. 191.

However this may be, and if it should be held that the notice by publication to Alice Summerville was void, then this only affected her interest, and she alone could be heard to complain. The other defendants all had their day in court were duly served with notice...