Allen v. . Strickland

MekRimoN, J., (after stating the facts). We think that the appellant failed to give the notice to the appellee and the constable, of his dissatisfaction with the valuation and allotment of the appraisers of his personal property exemption, required by the statute. (The Code, § 519). Notice in judicial proceedings is important. In many cases, it is the means whereby the jurisdiction of the Court attaches to the party, as in this case, and, generally, it gives vitality and efficiency to important action of the Court, in the course of the action or proceeding. It is not to be treated lightly, and as of slight moment. When, therefore, ordinarily, a statute requires such notice to be given, it is not meant that the party to whom it is to be given shall simply have information given orally or in writing, but it must be given in writing, addressed to the proper person, contain the substance, intelligently and sufficiently expressed, of the information to be communicated, signed by the party giving it, by himself or his attorney, and served in such way as that the Court can see and learn that it has been served, and, moreover, it, or a copy of it, must be returned into Court, properly authenticated, unless it shall in some way be waived, as by the appearance of the party to be affected by it. The statute (The Code, § 597), which is of general application as to notice in judicial proceedings, provides that, “ Notices shall be in writing; notices and other papers may be served on the party or his attorney personally, when not otherwise provided in this chapter.” The chapter then provides, that service may be made by leaving the notice in the cases provided for at the office of *229 the attorney, the residence of the person to be notified, by publication, and particularly how subpoenas may be served. But, generally, the notice must be served personally, and the statute (The Code, § 228) provides, that “Proof of service of the summons or notice must be: (1.) By the certificate of the Sheriff, or other proper officer. (2.) In case of publication, the affidavit of the printer, or of his foreman or principal clerk, showing the same. (3.) The written admission of the defendant.” The.service of notice, made in a way and manner recognized and sanctioned by the law, is an essential requisite of it; without this, it is ineffectual for the purpose intended, and void. Unless it is given as the law directs or allows, the party to whom it is given is not bound to recognize or act upon it, nor indeed is it notice. It is the legal sanction that gives the notice, in sufficient form and substance, life and efficacy. Wade on Notice, §§ 1293, 1295, 1335, 1342. Now, neither any statutory provision, nor any settled practice in this State, within our knowledge, since the enactment of The Code, warrants the service of notice in judicial proceedings through the mails. In the absence of statutory regulation, such method would be impracticable. Practically, it could not contemplate a return of the notice, or a copy of it, and it would not be sufficient proof of service of it, to show, by affidavit, that it was mailed at a particular time, and post-office, to the address of the party to be charged by it. The appellant gave no notice to the adverse party and the officer, within ten days, as required by the statute. An alias notice was not, therefore, in order or allowable. It may be, that if a sufficient notice had been placed in the hands of a proper officer, to be served by him on the party to be charged therewith, and he had returned the same unexecuted, that an alias notice might have been allowed, and thus the right of the party giving it would be presumed; but any question *230 as to that, is not now before us. The appellant having allowed the time within which he might have given notice to lapse, the Court had no authority to revive and give effect to his lost right. Judgment affirmed. No error. Affirmed.