Mosby v. Gandy

• Decision Date: 10 October 1979
• Docket Number: No. 51361,51361
• Citation: 375 So.2d 1024
• Parties: Willie MOSBY et al. v. Frank GANDY et al.
• Court: Mississippi Supreme Court

Page 1024

375 So.2d 1024

Willie MOSBY et al. v. Frank GANDY et al.

No. 51361.

Supreme Court of Mississippi.

Oct. 10, 1979.

John A. Donald, Memphis, Tenn., Francis B. Stevens, Washington, D. C., for appellants.

Farese, Farese & Farese, Anthony T. Farese, Ashland, Taylor, Whitwell & Goeldner, Robert Q. Whitwell, Southaven, James W. Amos, Olive Branch, for appellees.

Before PATTERSON, C. J., SUGG and WALKER, JJ.

SUGG, Justice, for the Court:

Complainants filed an original and amended bill of complaint to set aside the final decree in Cause No. 71-86 of the Chancery Court of De Soto County confirming a sale of land by a special commissioner for division of proceeds in a partition suit. Complainants alleged the final decree was void because process on the non-resident defendants was invalid, stating:

The averments in the Petition for Partition as to the residence of the non-resident defendants in their respective home jurisdictions were improperly stated, and the averments in said Petition for Partition as to diligent search and inquiry to ascertain the post office and street addresses of the non-resident defendants were false; that the petitioners in said cause did not in fact make diligent search and inquiry to ascertain said information; that had they done so, such Post Office and street addresses could easily have been ascertained.

Complainants also alleged they remained in possession of the land following confirmation of the sale and had not accepted the proceeds of the sale. The defendants filed separate general demurrers, one defendant filed a motion to dismiss, and another defendant filed a special demurrer. The special demurrer and motion raised the affirmative defenses of limitation of actions, laches, estoppel, and bona fide purchaser for value. No proof was offered on the motion and of course, no proof could be offered to support the special demurrer.

The chancellor sustained the demurrers and motion and dismissed the bill of complaint, but did not give any reason for his ruling.

The principal questions involved in this appeal are: (1) Were the allegations in the petition for partition in Cause No. 71-86 sufficient to support publication of process for non-resident defendants under sections 13-3-19 and 13-3-21 Mississippi Code Annotated (1972)? (2) Did the amended bill in the instant case charge invalidity of service of process in a manner sufficient to withstand a demurrer? (3) Were the affirmative defenses of limitations of actions, laches,

estoppel res judicata and bona fide purchaser for value established? (4) Does process in accordance with sections 13-3-19 and 13-3-21 Mississippi Code Annotated (1972) afford due process? (5) Was the final decree in the partition case conclusive as to all issues raised by the bill of complaint?

I

WERE THE ALLEGATIONS IN THE PETITION FOR PARTITION IN CAUSE NO. 71-86 SUFFICIENT TO SUPPORT PUBLICATION OF PROCESS FOR NON-RESIDENT DEFENDANTS UNDER SECTIONS 13-3-19 AND 13-3-21 MISSISSIPPI CODE ANNOTATED (1972)?

There were six non-resident defendants in the partition proceedings. (Cause No. 71-86). The sworn petition stated the post office address of five of the non-resident defendants but did not state the street address of these five defendants. As to each of these five defendants, except for a different name, the petition alleged:

Calvin Leonard, a non-resident of the State of Mississippi whose residence, post office and street address after diligent search and inquiry is known to your Petitioners only as General Delivery, Madison, Illinois.

The sufficiency of the allegations of the petition must be determined from the provisions of section 13-3-19 as construed by this Court. In Burns v. Burns, 133 Miss. 485, 97 So. 814 (1923), we stated:

Said statute is specific. There is no ambiguity as to how a non-resident shall be brought into court. In substance it simply provides that, in order to bring in a nonresident defendant, the complainant as the first step must either in his sworn bill or in a separate affidavit make oath that defendant is a nonresident of this state, or not to be found therein on diligent inquiry, and the post office address of such defendant if known, and if not known, so stating. This statute is jurisdictional. It is one of the methods provided by law to meet the requirements of the due process clause of the Constitution. (133 Miss. at 490, 97 So. at 815).

Accord, Rice et al. v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949) and McDuff v. McDuff, 252 Miss. 459, 173 So.2d 419 (1965), where we held that the statute must be strictly complied with, or the full equivalent thereof be adhered to.

In Rice, supra, we held that inferences are not sufficient to uphold process by publication and nothing short of a positive averment of the facts will suffice. Ordinarily, the averment would state the post office address of a non-resident, and then conclude, "but the street address is unknown to complainant after diligent search and inquiry." However, this is not the only way of stating the fact. The allegation that the "post office and street address after diligent search and inquiry is known to your petitioners only as General Delivery, Madison, Illinois" is simply another way of stating as a fact that the street address is unknown after diligent search and inquiry. We hold the allegations comply with the statute and are sufficient to support process by publication.

The other non-resident defendant in Cause No. 71-86 was Bobby Jean Leonard and the petition properly alleged that this defendant was a non-resident of the State of Mississippi whose residence, post office and street address, after diligent search and inquiry, were unknown to petitioners. We hold the statute was complied with as to this non-resident defendant.

II

DID THE AMENDED BILL IN THE INSTANT CASE CHARGE INVALIDITY OF SERVICE OF PROCESS IN A MANNER SUFFICIENT TO WITHSTAND A DEMURRER?

One of the fundamental principles of justice is that no person may be divested of his rights until he has had an opportunity of being heard. In the absence of process on a defendant, even though the defendant may know of the pendency of the action, defendant's knowledge of the existence of the action does not supply the want of compliance with requirements of valid process. In Griffith's Mississippi Chancery Practice, Section 223, page 221, states the rule as follows:

Rice, et al. v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949), we stated:

"It is a cardinal principle in the administration of justice that no man can be condemned, or divested of his rights, until he has had an opportunity of being heard. He must, by service of process, by publication of notice or in some equivalent way, be brought into court, and if judgment be rendered against him before that is done, the proceedings will be as utterly void as though the court had undertaken to act where the subject matter was not within its cognizance. The principle is universal that no judgment, order or decree is valid or binding upon a party who has had no notice of the proceeding against him. The court must not only have jurisdiction of the subject matter, but also of the persons of the parties to give validity to its final judgments, orders and decrees, and it is not in the power of the legislature, under our constitution, to dispense with this notice, actual or constructive."

21 C.J.S., Courts, § 83, page 124, announces the rule as follows:

". . . it is held that a person's knowledge of the existence of an action does not supply the want of compliance with the statutory or legal requirements as to service, and that a person's mere presence in court does not give jurisdiction to enter a judgment against him when he was not brought there by any legal means."

This contention by appellant has been forever set at rest in this state by the decision in McCoy et al. v. Watson, 154 Miss. 307, 122 So. 368, 370, wherein it was said:

"Finally, it is argued that since the filing of the petition to remove shows conclusively that the nonresident defendant knows all about the suit, and has all the actual knowledge that could be conferred by a legal summons, we should not require the ceremony of a legal notification; that it would be an idle thing to do. Upon the same reasoning it could be maintained that the affidavit of the sheriff and witnesses could be received to show that, although the sheriff had not served the defendant with a formal legal summons, he had told the defendant orally in the presence of these witnesses all about the suit and warned him to appear and when to appear, and that the defendant had gone to the courthouse and read all the papers in the case and had obtained certified copies of the case papers and knew everything about the case that he could have learned from a legal summons. It is now so thoroughly well settled as to make it too late to urge that knowledge by a defendant of a suit, however definite and full, or however obtained, or whatever may have been the defendant's action under that knowledge, is of any avail or advances the case a step, unless there has been a legal summons or a legal appearance. McPike v. Wells, 54 Miss. 136; Jacks v. Bridewell, 51 Miss. 881; Burns v. Burns, 133 Miss. 485, 97 So. 814." (207 Miss. at 727, 728, 43 So.2d at 200, 201).

Complainants allege that the averments in the petition for partition (Cause No. 71-86) as to diligent search and inquiry to ascertain the post office and street address of the non-resident defendants were false, also that petitioners did not make diligent search and inquiry to ascertain the post office and street addresses of the defendants. The bill of complaint clearly charges process was obtained by fraud. We hold the bill of complaint charged fraud in the procurement of process in a manner sufficient to withstand a demurrer. The court erred by sustaining the general demurrer. However, at the trial on remand, complainants have the heavy burden of establishing...