Opinion
No. 30182.
October 24. 1932.
1. EQUITY. In attachment in chancery, allegation that principal defendant was Louisiana corporation with principal place of business in New Orleans held not to authorize decree pro confesso ( Code 1930, sections, 177, 2972).
Such allegation did not authorize decree pro confesso under Code 1930, section 177, since it could not be assumed thereunder that the post office address of defendant was New Orleans, and the street address of such defendant nowhere being given, either in the bill or in any separate affidavit, and there being no allegation that after diligent search and inquiry such address could not be ascertained, as required by Code 1930, section 2972.
2. EQUITY.
Strict observance of statutes in matter of service of process by publication is necessary to render decree pro confesso valid.
3. EQUITY.
Final decree in attachment in chancery is void where no jurisdiction to proceed to final decree has been acquired either by appearance of, or valid process of publication upon, principal and nonresident defendant.
APPEAL from circuit court of Newton county. HON. D.M. ANDERSON, Judge.
Chambers Trenholm, of Jackson, for appellant.
The decree pro confesso and final decree against the nonresident defendant, and the decree denying the claim of appellant, were void and of no effect.
There was no consent by the nonresident defendant, it having neither been served with process nor appeared.
E.R. Wall, of Newton, for appellees.
The nonresident defendant had been brought in as the law directs by the proper publication of the process.
This case is an attachment in chancery. The principal defendant is alleged in the bill to be a corporation of the state of Louisiana, and that its principal place of business is in New Orleans in said state. Even if it might be assumed, under such an allegation, and we think it cannot in matter of law be so assumed (Hume v. Inglis, 154 Miss. 481, 122 So. 535), that the post office address of said defendant is New Orleans, the street address of said principal defendant is nowhere given either in the bill or in any separate affidavit, nor is there any allegation that "after diligent search and inquiry said street address cannot be ascertained." Section 2972, Code 1930. In order to maintain an attachment in chancery, the nonresident debtor must be made a party by publication of summons as in other cases. Section 177, Code 1930.
The nonresident defendant made no appearance, and a decree pro confesso on the defective averments as to post office and street address above mentioned was taken. It has been repeatedly held by this court that a strict observance of the statutes in the matter of process by publication is necessary and that, where there has been a failure of such observance, a decree pro confesso is void, unless the nonresident has entered appearance. And, of course, a final decree in a proceeding in attachment in chancery is void where no jurisdiction to proceed to final decree has been acquired either by the appearance of, or by valid process of publication upon, the principal and nonresident defendant.
Three other irregularities appear in the record of the proceedings, but, because the final decree is wholly void for want of jurisdiction of the principal and nonresident defendant, and because the said defendant is not and has never been in court, we deem it as proper to pretermit further discussion.
Reversed and remanded.