Mercantile Acceptance Corp. v. Hedgepeth

*723 Anderson, J., delivered the opinion of the court. Appellee, W. A. Hedgepeth, filed his bill in the chancery court of Lawrence county against R. R Betz, alias D. Clyde Turk, a nonresident of this state, and J. M. Brewer, the sheriff of Lawrence county, to recover of the former the sum of two thousand dollars damag'es claimed to have been suffered by appellee through the negligence of Betz, alias Turk, in driving his Cadillac automobile against and over appellee, by t means of which appellee was injured. There was a foreign attachment for Betz, alias Turk, upon affidavit, which attachment was levied on the Cadillac car in possession of Betz, alias Turk, at the time of appellee’s injury, which car Betz, alias Turk, immediately after the injury deserted and fled the country. There was a decree pro confesso, and a final decree based upon the record and oral testimony taken at the hearing. Appellant Mercantile Acceptance Corporation gave a claimant’s forthcoming bond in the sum of two thousand dollars for the car, claiming title thereto, or some right therein, with appellant United States Fidelity & Guaranty Company as surety. A final decree was taken against appellants on the forthcoming bond in the sum of two thousand dollars, which sum the court adjudged represented the damages appellee had suffered on account of the tort committed on him by Betz, alias Turk. From that decree appellants prosecute this appeal. The cause was heard on original bill, proof of publication of notice for the nonresident defendant, decree pro confesso against the latter, and oral testimony taken at the hearing, and a final decree was rendered against the nonresident defendant in which, among other things, the court adjudged that appellee was injured by means of a tort committed on him by the nonresident defendant, and *724 was damaged thereby in the sum of two thousand dollars. The decree recites, further, that at the time of the service of the attachment the resident defendant in the cause, J. M. Brewer, the sheriff of Lawrence county, had in his possession and custody effects of the nonresident defendant, namely, a Cadillac roadster car, being No. 63F1515; that the defendant Betz, alias Turk, was a nonresident of this state for whom publication of notice had been made according to law, returnable to the term of court at which the final decree was rendered; that on the 25th day of June, 1926, appellant Mercantile Acceptance Corporation, of Chicago, 111., appeared and entered into a claimant’s bond in the sum of two thousand dollars, with the other appellant, United States Fidelity & Guaranty Company, of Baltimore, Md., as surety, conditioned that said car would be forthcoming to abide the decree of the court; that said bond was before the court for inspection; that appellant Mercantile Acceptance Corporation had removed the car to Memphis, in the state of Tennessee, and therefore out of the jurisdiction of the court ; that neither of the defendants nor appellants had made any defense to the cause; that appellant Mercantile Acceptance Corporation had breached its forthcoming bond by failing to return the car to the sheriff to abide the judgment of the court. The decree then proceeds to adjudge that appellant Mercantile Acceptance Corporation and its surety, United States Fidelity & Guaranty Company, return to the sheriff of Lawrence county at once the automobile involved, against which the decree establishes a lien for the payment of the two thousand dollars decreed to the appellee; and in the event the automobile is not returned to the sheriff of the county, appellee recover of appellants the penalty of the forthcoming’ bond. Appellants contend that the court was without authority of law to render the decree appealed from, because the court failed to get jurisdiction of the nonresident defendant, Betz, alias Turk, by proper publication as required by the statute. *725 Material changes in section 3920, Code of 1906 (Hemingway’s Code, section 2927) are made by the first paragraph of section 7 of chapter 151 of the Laws of 1924, with reference to the oath required for a nonresident defendant in chancery, in order to give the court jurisdiction of a proceeding in rem against such nonresident defendant. The first paragraph of section 7, chapter 151, Laws of 1924, follows, in copying’ which the material •changes referred to are italicized: “If the defendant in any proceeding in a chancery court be shown by sworn bill or petition, or by affidavit filed, to be a nonresident of this state, or not to be found therein on diligent inquiry and the post office of such defendant be stated in the bill, petition or affidavit, or if it be therein stated that it is not known to the complainant or petitioner after diligent inquiry, or if the affidavit be made by another for him, that such post office is unknown to affiant after diligent inquiry and he believes it is unknown to complainant or petitioner after diligent inquiry by complainant or petitioner, the clerk, upon the filing of the bill or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to such party to appear and defend the suit, on a rule day in vacation sufficiently distant in time to admit, of the due publication thereof, or on the first day of the next regular term if thereby the answer of the defendant would be the earlier required. ’ ’ It will be noted that one of the material changes in the former statute is that if the affidavit for publication be made by another for the complainant, it is necessary that the affidavit state that the post office is unknown to the affiant after diligent inquiry, and affiant believes it is unknown to his client after diligent inquiry. Appellee’s bill was sworn to by his attorney. In the body of the bill it is stated that R. F. Betz, alias D. Clyde Turk, was a nonresident of the state whose whereabouts and residence were unknown to the complainant. And in the affidavit to the bill it is stated that the affiant did *726 not know the residence or post office address of the nonresident defendant named in the bill, and that his client, appellee Hedg'epeth, did not know the residence or post office address of the nonresident defendant. There is no allegation in either the body of the bill or the affidavit to the bill that the post office address of the nonresident defendant was unknown after diligent inquiry, and that the affiant believed it was unknown to his client after diligent inquiry by the latter. Constructive service of process by publication is insufficient to support a decree unless the precedent proceedings strictly conform to the requirements of the statute. Burks v. Burks, 66 Miss. 494, 6 So. 244; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll (Miss.), 28 So. 825 (not officially reported); Ponder v. Martin, 119 Miss. 156, 80 So. 388; Belt v. Adams, 124 Miss. 194, 86 So. 584; McCray v. McCray, 137 Miss. 160, 102 So. 174; Mays Food Products, Inc., v. Gloster Mercantile Co., 137 Miss. 691, 102 So. 735. We are of opinion that the changes made in the statute with reference to the oath required to bring in by publication a nonresident defendant, are material changes; that they are vital and that they were intended to answer a wholesome purpose and will have the effect of doing so. If the complainant makes the oath that the post office address of the defendant is unknown to him, he ought to be required, as the statute does require, to go further and make oath that he has made diligent inquiry to ascertain his post office address; and if the oath is made by the complainant’s attorney that the post office address of the defendant is unknown, he ought to be required, as the statute does require, to state that he had made diligent inquiry to ascertain his post office address, that he believes it is unknown to the complainant, and that the latter has made diligent inquiry to ascertain the same. We think, therefore, that the publication of notice for the main defendant in this case was void, and therefore the court was without authority to condemn to *727 the payment of the decree in this case the effects of the nonresident defendant within this state, or to render decree on the forthcoming bond given by appellants in lieu of a decree against the effects of the defendant. Appellants contend that the court erred in rendering a decree against them on the claimant’s forthcoming bond for the penalty of the bond, two thousand dollars. In the absence of any finding by the court that the automobile was of the value of two thousand dollars, we are of opinion that appellants’ contention in that respect is well founded. Under the forthcoming bond the appellants had the right to return the automobile to the sheriff to abide the decree of the court, or become liable for its value. The court in its decree, without ascertaining the value of the automobile, rendered a decree against appellants for the penalty of the bond. The court was without authority to render a personal decree against appellants for any sum beyond the value of the car. Appellants contend, further, that they were not parties to the cause, and therefore the court erred in rendering a decree against them for any sum. This contention is based mainly on the asserted fact by appellants that the claimant’s forthcoming bond in the record was not executed as a bond in this cause, but was executed and approved as a claimant’s forthcoming bond in a replevin suit in another court, a law court. Appellants argue that the bond on its face shows that to be a fact. The condition in the bond does recite, “unless the said Mercantile Acceptance Corporation, of Chicago, 111., the principal and plaintiff, shall prosecute to effect this writ of replevin against W. A. Hedgepeth, the defendant, for certain personal property described as follows in said writ of replevin, to-wit, ’ ’ etc. But we think that question is settled by the decree of the court, which recites that the bond before the court when the decree was rendered, which is the bond in the record in this case, was the bond executed by appellants for the forthcoming of the automobile. The court thereby adjudicated the question *728 as to whether the bond in question was the bond given in this cause. It is true the bond is defective, but under the law it answered its purpose, and appellants are es-topped to claim any advantage on account of the irregularity of the bond. By the execution of the bond in this cause appellants became parties to the cause, and submitted themselves to the authority of the court to render a proper decree against them, provided, of course, the court had acquired jurisdiction by publication of notice of the nonresident defendant. Atkinson v. Foxworth, 53 Miss. 741; Higdon v. Vaughn, 58 Miss. 572. We see no merit in the other contentions argued by appellants. Reversed and remanded, to be proceeded with in accordance with this opinion. Reversed and remanded.