Paulling's Adm'rs v. Creagh's Adm'rs

MANNING, J. [After stating the facts as above.] On examining the record, we do not find that the summons, which (it seems) was issued, was ever served on Bush, the administrator; nor did he appear in the cause at all, as a defendant in the cross-suit. The fact that he made himself, as administrator, complainant in the suit brought by Paulling, was not sufficient. He should have been served with process to make him a party in fact to the cross-bill. It set forth a history of the transactions between the decedent, Creagh, and Paulling, and of the proceedings in the suit of the latter, which Bush was entitled to controvert ; and it prayed for relief, such as the Chancery Court granted. The decree was rendered, also, on a hearing or submission of the original and cross-cause both together, and was rendered in accordance with the prayer of the cross-bill. It jvas error to make such a decree without having Bush served with process, and without any appearance on his part, in the cross-action. There seems to have been a failure, also, to comply with the provisions of the law to bring the non-resident devisees and heirs of Paulling into court. According to statute, “orders of publication must conform to the rules now in force in Courts of Chancery in this State, and to those which may [401] hereafter be made.” — Code of 1876, §3773 (3339). And by the 25th Buie of Chancery Practice, it is ordered, in respect to non-resident defendants, that the register shall have all orders of publication, “-Whether made by the chancellor or himself, published, with as little delay as may be, in such newspaper as may be designated in the order,- once a week for four consecutive weeks ; a copy of which order he must post up at the door of the courthouse of the county, or other place where the court sits, and shall send by mail another copy thereof to the defendant, where his residence is shown by the bill or affidavit, as aforesaid; which copies shall be posted up, and sent by mail, within twenty days from the making of said order.” Without going into any question made respecting the validity of the register’s amendment nunc pro tunc of his original entries on this subject, it appears by them as amended, that the copies of the publication and notice were not sent to the post-office designated in the affidavit made thereof, as that of the defendants. According to the affidavit, the post-office of the parties was Goodwin, in Holmes county, Mississippi; but the copies were addressed to them at Goodman., instead of Goodwin. This was not a proper service. “ Notice to the defendant, actual or constructive,” said the Supreme Court of the United States, “ is an essential prerequisite to jurisdiction. Due process, with personal service, as a general rule, is sufficient in all cases.” But constructive notice “ can only be admitted in cases coming fairly within the provisions of the statute authorizing courts to make publication, and providing that the publication, when made, shall authorize the court to decide and decree.” Wherefore it was held, that affixing process on the front door of the house which the defendant had lately occupied with his family as his home, and had left because the country in which it was situated in Virginia was brought within the power of the army of the United States during the late war, was not a compliance with the statute, which required such process to be “ posted on the front door of the party’s usual place of abode.” — Earle v. McVeigh, 91 U. S. 507-8. See, also, City of Opelika v. Daniel, 59 Ala. 217-18. Buies prescribed by law, through which jurisdiction is acquired to render judgments and decrees that shall be binding upon persons residing out of the State, and beyond the reach of its process, must be complied with, or the jurisdiction is not obtained. A final decree, rendered against a defendant as to whom publication was ordered, without proof that publication was perfected according to the order, [402] will be reversed. — Batre et al. v. Auze, 5 Ala. 173; Butler v. Butler, 11 Ala. 668; Hartley v. Bloodgood, 16 Ala. 233; Beavers v. Davis, 19 Ala. 82. The record must disclose that a copy of the order was posted at the court-house door, or the decree cannot be sustained. — Cullum v. Branch Bank of Mobile, and Butler v. Butler, supra. And if the residence of defendant is disclosed, it must appear that a copy of the order was transmitted to him by mail. — It. And these things must be shown by recitals of the facts ; a mere statement, or recital, that publication was made in due or proper form, is not sufficient,- when the case is brought up by appeal. This is the statement rather of a legal conclusion,' than of facts. — Hanson v. Patterson, 17 Ala. 738; 1 Brick. Dig. 764. For the course to be pursued where non-resident infants are to be made parties defendants, see the rules on that subject, and 1 Brick. Dig. 762. Let the decree of the chancellor be reversed, and the cause remanded.