Ponder v. Martin

Decision Date20 January 1919
Docket Number20381
Citation80 So. 388,119 Miss. 156
CourtMississippi Supreme Court
PartiesPONDER ET AL. v. MARTIN ET AL

Division B

1 PROCESS. Service by publication. Sufficiency of affidavit. Compliance with statute.

It is of the highest importance that parties interested receive summons or notices and where publication is substituted for summons, the proceedings required by statute must be strictly followed.

2 PROCESS. Service by publication. Sufficiency of affidavit.

Under the Code of 1906, section 3920 (Hemingway's Code, section 2927, providing for service of summons by publication, where such service was sought and the bill and affidavit for such publication gave the residence of defendants, but failed to state that such place was also this post office address, or that their post office address was unknown, such service was insufficient.

3 PARTITION. Qualifications of commissioners. Interest in suit.

In a suit for partition where some of the parties are minors, it is inconsistent for the same person to be quardian ad litem for for some of the parties to the suit and at the same time a commissioner to make and report a sale.

HON. G. C. TANN, Chancellor.

APPEAL from the chancery court of Rankin county, HON. G. C. TANN, Chancellor.

Suit by W. L. Martin and others for partition and sale. From a decree confirming the sale, a part of defendants and plaintiff appeal.

W. L. Martin and others, constituting a numerous body of complainants, filed a bill in the chancery court against D. M. Ponder and others, constituting a large number of defendants, for the partition and sale for division of certain property described in the bill. Numerous of the defendants were non-residents of the state, and it is alleged: That Tildon Ponder, R. L. Ponder, Amos Ponder, and Henry Ponder, adults, and Bertie Ponder, Jessie Ponder, Nettie Ponder, and Lany Ponder, minors, nonresidents, "whose post office is believed to be Pleasant Hill, La.," and all other unknown heirs of the said Jasper Ponder, deceased, and all heirs of the said Polly Ponder, deceased, W. J. Smith, heirs of Eliza Smith, deceased, who is a nonresident, and "whose post office is believed to be Roseland, La.," and Dr. C. A. Thomas, nonresident, whose post office is Tucson, Ariz., and Nina Thomas, an adult, and Elouise Thomas, minor, of Perkins, Okl., and all other unknown heirs of E. R. Thomas, deceased, Addie Wilkins, Perkins, Okla., who is a son of said A. J. Thomas, deceased, all heirs at law of said A. J. Thomas, deceased, and the heirs of William Thomas, deceased, to wit, James H. Thomas, Cuero, Tex., D. L. Thomas, La Hunter, Colo., William Thomas, Henryetta, Okla., Mellville Thomas, Smithville, Tex., Jesse W. Thomas (non compos mentis) and the guardian of the said Jesse W. Thomas, who is Jesse H. Thomas, and the heirs of George W. Thomas, deceased, to wit, J. F. Thomas, Mrs. Beulah Frazier, and the heirs of Mrs. Alice E. Shults, deceased, to wit, Thomas Shults, Cornelia Peavy, Jessie Nichols, Mrs. Ivey Beasley, adults, and Robert Stell Shults, minor, and Thomas M. Stell, guardian of said Robert Stell Shults, minor, and all unknown heirs of said George Thomas, deceased last named eight heirs, Cuero, Tex., all above heirs of said William Thomas, deceased.

It will be noticed that it is not alleged that these places are post offices and constitute the post office address of defendants, except where stated that certain places are "believed" to be the post office.

The interest of the said parties are attempted to be set forth in the bill, and it is alleged that the lands involved are believed to be worth the sum of three thousand and two hundred dollars and that the parties are too numerous for said land to be divided in kind, but that a sale would best serve the interest of all parties. Prayer was made for appointment of a special commissioner and for process to defendants and for general relief. The bill was sworn to by W. L. Martin, one of the complainants, the affidavit being (omitting the formal parts) as follows:

"W. L. Martin, being duly sworn, states on oath that he is one of the complainants in the foregoing bill for the sale and partition of land and says that those things and allegations in the said bill stated as true are true, and those on information and belief he believes to be true."

Subsequent to the filing of the bill W. L. Martin filed a separate affidavit in which he states on oath that the following named defendants, to wit: Tildon Ponder, R. L. Ponder, Amos Ponder, and Henry Ponder, adults, and Bertie Ponder, Jessie Ponder, Nettie Ponder, and Lany Ponder, minors, heirs of Jasper Ponder, deceased--are, as he believes, resident citizens of Pleasant Hill, La; Dr. C. A. Thomas, he is informed and believes, is a resident citizen of Tucson, Ariz.; W. J. Smith is, as he believes, a resident citizen of Roseland, La.; Miss Nina Thomas, adult, and Elouise Thomas, minor, heirs of E. R. Thomas, deceased, and Addie Wilkins, are, as he is informed and believes resident citizens of Perkins, Okla.; James H. Thomas, Jesse W. Thomas, J. F. Thomas, Beulah Frazier, Thomas Shults, Mrs. Cornelia Peavey, Mrs. Jessie Nichols, Mrs. Ivey Beasley, adults, and Robert Stell Shults, minor, are all, as he is informed and believes, resident citizens of Cuero, Tex., Melvin Thomas, who, he believes, is a resident citizen of Smithville, Tex.; D. L. Thomas, affiant is informed and believes, is a resident citizen of La Hunter, Colo.; and William Thomas, affiant is informed and believes, is a resident citizen of Henryetta, Okla.--are all nonresidents of this state, and are all nonresident citizens defendant, heirs of Mrs. Martha Gayden, deceased. This affiant has made diligent inquiry to ascertain all the heirs of said Mrs. Martha Gayden, deceased, and the heirs set forth in the foregoing bill and this affidavit are all of said heirs; and he further states that, according to his best information obtained by the aforesaid diligent inquiry, the addresses of all parties hereto are as stated in this affidavit and said bill. Upon this bill and affidavit summons was issued to the defendants and notice published for three consecutive weeks in a newspaper published in the county. The clerk made the following notation upon his docket, publication of process, to wit:

"Publication issued for the nonresidents and copies sent thereto October 19, 1916."

Decree pro confesso was taken against certain of the adult defendants and the court appointed a guardian ad litem for the minor defendants. The guardian ad litem filed formal answer denying the allegations of the bill, disclaiming knowledge of certain allegations set forth. The chancellor decreed partition of the property and appointed the same person who was appointed guardian ad litem for the minors as special commissioner to make the sale. The commissioner published notice that on the 13th day of August, 1907, he would make sale of said lands in front of the courthouse door in the town of Brandon, Miss.; that said lands were to be sold for the purpose of partition among the owners in accordance with the decree. The report of the commissioners to the chancellor was filed on the 17th day of August, 1917, reporting that on the 13th day of August he had made sale in accordance with the decree, and that Alonzo Martin was the highest bidder, at and for the sum of eight hundred and fifty dollars, and asked that the sale be confirmed. The chancellor on the 18th day of August, 1917, the day following the filing of the report in the chancery clerk's office at Brandon, signed the decree approving and confirming the sale, and directing disbursement of the proceeds of the sale, from which decree certain of the complainants and certain of the defendants appealed to this court.

Decree reversed, and cause remanded.

Sidney L. McLaurin, for appellant.

Chalmers Alexander and J. R. East, for appellees.

OPINION

ETHRIDGE, J....

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