Chilton v. Ala. Gold Life Insurance

BRIOKELL, C. J. — The making defendants to a suit in [293] equity of parties residing without the State, upon whom process is not served, and who have only constructive notice by publication in a newspaper, is statutory : it is not according to the ordinary practice of the court, and not within its ordinary jurisdiction. A final decree rendered against a defendant not appearing, made a party only by publication under the statute and the rules which have been adopted to carry the statute into effect,, can not be supported, when directly assailed on error, unless the record affirmatively shows a decree pro confesso, preceded by an appropriate order of publication, made and executed in conformity to the statute and rules of practice. The record must not only show the decree pro confesso, but it must also show the facts which render the decree regular, and authorize its rendition. Recitals in the final decree,.that the decree pro confesso had been taken, or separately of facts which would 'authorize its rendition, can not supply its absence. — Hartley v. Bloodgood, 16 Ala. 233; Hanson v. Patterson, 17 Ala. 738. "When a court of general jurisdiction is, in the exercise of its ordinary, accustomed powers, pursuing its ordinary remedies agaiust parties voluntarily appearing, or who have been brought in by the service of personal process, all reasonable intendments and presumptions are, on error, indulged in support of the regularity of its proceedings and judgments. But, when it is in the exercise of special authority, derived wholly from statutes in derogation of the common law, on error, a reversal of its decree or judgment must follow, unless the record affirmatively discloses a strict conformity to the statute. — Gunn v. Howell, 27 Ala. 663. There is, in the present record, an affidavit of the solicitor of the complainant, disclosing that the heir of the deceased mortgagor, an indispensable party defendant, resided without the State, at a place designated, in the State of Louisiana; and the affidavit is, in this particular, an affirmation of the truth of a distinct averment of the original bill. But, whether she was above or under .the age of twenty-one years within the belief of the affiant, or whether to him her age was unknown, is not stated. The rule of practice (Rule 25; Code of 1876, p. 165) expressly requires, that the affidavit, upon which an order of publication as to a non-resident defendant is founded, must state “ the belief of the affiant as to the age of the defendant, being over or under twenty-one years,” or that the age is unknown. The reason of. the requirement is plain : the proceedings which are to follow the execution of the order of publication are dependent upon the age of the defendant. If he be an adult, a decree pro confesso follows, — an admission of the truth of all facts well pleaded in the bill, justifying the rendition of a final decree against him without other evidence; but, [294] if he lie not an- adult — if an infant — a guardian ad litem for him must he appointed, whose duty it is to require evidence in support of the allegations of the bill. It is not difficult to observe the requirements of the statute and of the rules of practice in proceedings of this character, when the facts exist which authorize them. But, if it were, the courts are powerless to-dispense with them, or to accept substitutes for them. If parties will not observe them, they imperil the validity of decrees- or judgments founded upon them. There is not only this defect in the affidavit which is the foundation of the subsequent, proceedings, but there is not in the record a decree pro eonfesso upon the original bill against the non-resident defendant. In its absence, a final decree against her could not be pronounced. There is a recital of the existence of such a decree fouud in different parts of the record; but the decree itself, showing-upon its face all facts essential to its validity, if it ever had an existence, is not a part of the record. Its absence can not be supplied by recitals of its existence, nor by intendment or presumption which might be drawn from them, if the court was in the exercise of its ordinary, and not of statutory authority. The register, in making a sale under the decree, was bound to conform to its terms. From it he derives his authority; and unless it was with the consent and approbation of all parties in interest, the terms of sale prescribed by the decree could not be varied. A sale for cash being decreed, he could not sell on credit; nor could the register, by agreement with the purchaser, delay the payment of the purchase-money for any specific period of time, though it may be very brief: he could not disable himself from demanding the consummation of the sale by the payment of the purchase-money, immediately upon the declaration that the offer or bid of the purchaser was accepted as the highest and best. But it is obvious that the two can not be instantaneous; that there will be an interval which must be consumed in the counting and payment of the purchase-ihoney; and it must frequently occur that the purchaser, while having the money within reach, may not have it present at the place of sale. There can be no objection to an accommodation of the conduct of the officer maldng the sale, to necessities, or exigencies of this kind, which may arise. The sale would be a sale for cash, when the officer has the right of demanding immediate payment. In the present case, the sale was for cash, in precise conformity to the decree; and the delay of payment of the purchase-money for two days resulted from the failure of the register to demand it earlier; and the demand was not pressed immediately upon the acceptance of the bid, most probably, because for some length of time the money, if received, would lie idly in the registry of the court. There is [295] no complaint that the sale was not fairly and regularly conducted, nor that the sum bid was not equal to the value of the premises. It would weaken confidence in judicial sales, and unnecessarily embarrass them, if, under these circumstances, the sale had been set aside, because of the unintentional, accidental delay for two days in the payment of the purchase-money, working in jury to no one. The other questions presented by the assignment of errors will not probably arise again under the same state of pleadings, and it is not necessary to consider them. For the errors pointed out, the decree must be reversed, and the cause remanded.