Wash v. Heard

Mr. Justice PIandy delivered the opinion of the court. The appellant filed his bill in the superior court of chancery against the appellee, who was alleged to be a citizen of this State. ■ Afterwards, upon affidavit of his non-residence, publication in a newspaper was ordered and made, and a pro confesso taken, and final decree rendered in favor of the complainant in January, 1849. In July, 1849, the defendant filed his bill of review, in which he complains of the following errors in the decree, namely, that he had no notice of the pendency of the suit; that he was never served with a subpoena, and never saw the publication which was made; that at the time the publication was made he was a citizen of Alabama, and the bill was filed against him as a citizen of Lauderdale county, Mississippi; that the decree is further erroneous in setting aside the title of defendant without proof of fraud, and in awarding to the complainant a writ of possession of the land, without evidence of legal title to the land in complainant. He prays that the decree be set aside and reversed,.and that he may be permitted to defend his title and answer the bill, which he alleges he will be able to do successfully. To this bill the appellant filed a demurrer, which was overruled, and from that order this appeal is taken. The first question for consideration is, whether this bill was sufficient as a technical bill of review. The only ground of error alleged in the bill to exist in the decree, and having any force, and that which is most relied upon in support of the bill, is, that the decree was rendered without the notice required by law having been made. On this point it [405] is insisted, that it was necessary not only to make publication, as to the non-resident defendant, in a newspaper, which was done, but that a copy of the order should also have been posted at the front door of the court; and that for the want of both publication and posting, the notice was insufficient, and the decree founded on the publication alone was irregular. This construction is founded on the second section of the act of 1822, Hutch. Code, 764, and the fifth section of the same act. The first two sections of this act relate expressly to proceedings in equity against absent debtors, having property or effects in this State, and gives in such cases the remedy of attachment in chancery, and the second section requires both publication and posting. The fifth section has a more extensive application. It provides that “ in all cases whatever, when a suit is or shall be depending in a superior court of chancery, or other court of equity, concerning any matter or thing whatever, against any absent defendant, the court may, upon satisfactory proof to them made, that such defendant or defendants is or are out of this State, or that upon inquiry at his, her, or their u,sual place of abode, he, she, or they could not be found, make any order similar to that which is directed to be made in case of absent debtors, &c., a copy of which order shall be published in like manner as is directed in case of absent debtors,” &c. At the first view, this section would appear to apply to all suits in chancery in which an absent or non-resident defendant might be a party. But, upon closer examination, it will be found to relate only to defendants having their residence in this State, and who are absent from the State, or cannot be found at their usual place of abode upon inquiry. The provision is, that the court shall order the publication, as directed in the previous section of the act, “ on satisfactory proof madesthat such defendant is out of this State, or that upon inquiry at his usual place of abode he could not be found.” This language clearly has reference to parties resident here, but temporarily absent from the State, or from their' place of abode, so that they cannot be found on inquiry there, and does not embrace non-resident defendants ; and in this sense the term “ absent,” in the first part of this section, is to be understood. [406] The correctness of this construction is manifest from the reason of the thing, and from other legislative provisions touching the same subject. There is good reason for providing, in case of defendants residing in this State, but absent fox the time being, or not to be found at their places - of abode, in addition to a publication in a newspaper, that notice of the suit should be put up at the court-house door, because that would be a very probable mode of informing them of the suit. But it must in all reason be a very useless act to attempt to give notice to a non-resident defendant, by .posting such a notice at the courthouse door; for the probability is very remote that he would ever see or know of it. As to other legislative provisions, the act of 1821, Hutch. Code, 756, § 20, provides for notice to absent defendants, by publication in a newspaper, and has reference to non-resident parties. They are designated as “ absent” defendants; but this statute must have been intended to apply to parties residing out of this State, because otherwise there is no provision made for giving notice to non-resident defendants, and, moreover, this statute would embrace no further description of persons than the fifth section of the act of 1822 above mentioned. Such a construction must be adopted as to give effect to both statutes, and to make provision for both classes of parties, and this can only be done by holding the act of 1821 to apply to non-residents, and the act of 1822 to apply to resident defendants temporarily absent from the State, or their usual places of abode. In addition to these views, this construction has been acquiesced in by long practice in the chancery court; a consideration entitled to great weight. Important rights have accrued under it, which would doubtless be greatly prejudiced to the injury of innocent parties, by holding that this established practice of that court was unwarranted in law; and the construction which has sanctioned such a practice should be sustained, except when it is founded on a clear violation of law. We do not, therefore, think that this is a sufficient ground to sustain this bill as a bill of review; and there are other grounds which render it insufficient as a technical bill of review. But we are of opinion that the bill, though not sufficient as a [407] technical bill of review, is sufficient in substance to entitle the party to a rehearing, and to be let in to answer and defend-the original bill under the provisions of the 4th section of the act of 1822, Hutch. Code, 765, and that it was properly entertained by the chancellor for that purpose. The decree is, therefore, affirmed, and the case remanded, to be proceeded with under the provisions of the 4th section of that act.