McCray v. McCray

Anderson, J., delivered the opinion of the court. The bill in this case was filed in the chancery court of Lauderdale county by appellant, the wife, against the appellees, heirs and legatees under the will of her deceased husband, to' set aside and have annulled a decree divorcing appellant and her said husband, theretofore rendered by the chancery court of said county in a cause wherein she was defendant and her husband compLainant, It is therefore a direct and not a collateral attach on the decree in question. One of the grounds of attack was, that court failed to get jurisdiction of appellant. Appellant’s husband in his bill in that cause attempted to confer jurisdiction on the court by publication of notice for appellant under section 3920, Code of 1906 (section 2927, Hemingway’s Code). The bill was sworn to. That ■portion of the bill which was made the basis for publication of notice for appellant is in this language. “Complainant states that he heard that defendant went from here (Lauderdale county) to Birmingham, Ala., and from there to some point in Ohio, but he is not advised where the defendant is, but that he is confident that she is not in the state of Mississippi, and that the defendant is a nonresident of the state.” Upon the filing of the bill publication was made according to the statute, addressed ‘ ‘ To Georgia McCray, address unknown. ’ ’ There was no appearance by appellant, and her husband proceeded to trial and obtained a divorce on notice based upon that affidavit, This court has held in several cases, and there are none in this state to the contrary, that constructive service of notice under'this statute (section 3920, Code of 1906; section 2927, Hemingway’s Code), by publication is insufficient — 164 — to support a decree, unless the requirements of the statute are strictly pursued. Burns v. Burns, 133 Miss. 485, 97 So. 814; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Id. (Miss.) 78 So. 929; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll (Miss.), 28 So. 825. A positive unequivocal statement of the nonresidence of the defendant and his post office address, if known, was necessary. There was no such statement in the hill or the affidavit thereto. The bill states that the complainant had heard that the defendant had gone to Birmingham, Ala., and from there to some point in Ohio; that the complainant was not advised where defendant was, but that he was confident she was not a resident of Mississippi but a nonresident of the state. In other words, nonresidence was not positively averred as a fact, but as an inference by process of reasoning’. This statute furnishes due process for nonresident and unknown defendants. They can be gotten into court only by compliance with the statute. Reversed, and judgment here.