Summons by Publication

I have had some recent inquiries by attorneys and clients on the issues of summons by publication.  Frankly, I really don’t like summons by publication and am a little paranoid about doing it absent extreme circumstances.  This is one area of the law I consistently see attorneys fail to follow the law in.  The requirements are strict and I have had a number of orders set aside because opposing counsel has failed to follow the requirements. 

Here is a quick rundown of what all is required.  Summons by publication is a departure from the common law and therefore the rule authorizing substituted service must be strictly construed.  See Section 235 of Griffith’s Mississippi Chancery Practice.  This roughly translates in layman terms to, you mess up one thing, the whole thing is wrong. 

If the requirements have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted).  Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33).

In order to do summons by publication, there are a number of things that have to be sworn to in the petition or affidavit filed with the court.  The affidavit or sworn complaint must state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “

Your best bet, if to go down Rule 4 dealing with publication and swear to each item required one by one.  So the quick checklist of items to look at:

(1)    List current P.O. Box or state that is unknown after diligent search and diligent inquiry

(2)   State whether the person is a resident or nonresident after diligent search and diligent inquiry

(3)   If the person is a resident or nonresident and state that the person has not been found herein after diligent search and diligent inquiry  

(4)   Make sure the words diligent search and diligent inquiry is specifically in there – several cases out there that says order is void without those specific words

(5)   State the current street address of person or state that is unknown after diligent search and diligent inquiry

(6)   State the last known street address of the person or state that it is unknown after diligent search and diligent inquiry

(7)   State the last known Post office address of the person or state that it is unknown after diligent search and inquiry

(8)   Have court clerk mail a copy of complaint with summons to last known address of any kind and record on docket   

Additionally the summons that is run in the paper and truthfully any other summons has to have the magic words in the style “The State of Mississippi.”   Article 6, §169 of the Mississippi Constitution, which is entitled, “Style of Process” states in pertinent part: “The style of all process shall be ‘The State of Mississippi …’”  Given the fact that the Mississippi Supreme Court and Court of Appeals have strictly interpreted Rule 4 as it applies to publication, it is arguable the summons by publication or any other summons is void without that language. 

Remember too, that in summons by publication, no money judgment for anything can be awarded.  See for example: Child support which can only be obtained by personal jurisdiction or a general appearance.  O’Neill v. O’Neill, 515 So. 2d 1208, 1211 (Miss. 1987).  I see orders all the time that were done by publication with child support in them.  The child support provision is void by law. 

I interrogate my clients if they want to do summons by publication and typically hire a bounty hunting company to see if they can find them.  There have been very few cases where I have not been able to track down a Defendant after a little effort.  The rules require more than just stating you have looked, you need to search the internet, search prison records if they are a former inmate, and document what steps were taken to locate the person so there is a record in the event the order is challenged in the future.  Difficulty in serving the person is not enough to allow summons by publication especially when you know roughly where they are.  Hopefully the above gives you some things to think about when doing summons by publication and helps you avoid the neverending minefield of reversals on appeal.