Summary
In Maddox v. Bush, 1941, 191 Miss. 748, 4 So.2d 302, the commitment was held to be void because no process was served upon the minor.
Summary of this case from Wheeler v. Shoemake, SheriffOpinion
No. 34805.
October 27, 1941.
1. HABEAS CORPUS. Infants.
Where process in proceeding to commit minor to State Industrial and Training School was issued for and served on minor's father and on his grandfather and grandmother, who had the custody of minor at the time, but no process was issued for minor or served on him and it did not appear minor was present at committal hearing, decree of committal was void for want of jurisdiction of minor and minor entitled to discharge in habeas corpus proceeding (Code 1930, sec. 7252).
2. JUDGMENT.
Regardless of statutory provision with respect to issuance and service of process, no judgment, order, or decree is valid or binding upon the party who has no notice of proceeding against him, since court must have jurisdiction of the person as well as of the subject matter and legislature is without power under Constitution to dispense with notice either actual or constructive.
APPEAL from the circuit court of Marion county, HON. J.C. SHIVERS, Judge.
Cephus Anderson, of Hattiesburg, for appellant.
We respectfully call the court's attention to the following authorities: See Section 320, Code of 1930; Griffith on Chancery Practice, paragraphs 31, 223, 255, and 732; also, Aubour v. Y. M.V. Railroad Company, 96 Miss. 340, 54 So. 158; also, 98 Miss. 714, 54 So. 158; Y. M.V. Railroad Company v. Lawler, 94 So. 219, 130 Miss. 421; J.J. Newman Lumber Company v. Pace, 137 Miss. 504, 102 So. 570; Railroad Company v. McDonald, 79 Miss. 641, 31 So. 418; also Bryant v. Brown, 151 Miss. 398, 118 So. 184; Holden v. Smith, 135 Miss. 322, 100 So. 27.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The chancery court has full jurisdiction over minors and minors' business by virtue of the grant of power to the chancery court in such matters by Section 159 of the Constitution. Consequently the chancery court is a court of general jurisdiction, having full and complete power over the minor and the minor's business regardless of article 9, Chapter 173 of the Code of 1930 and amendments.
See Neely v. Craig, 162 Miss. 712, 139 So. 835.
Consequently, where the minor was produced in court, it is immaterial that no summons had been issued for the minor to appear and defend the proceeding.
By a decree of the Chancery Court of Forrest County, appellant, a minor, was committed to the Mississippi Industrial and Training School. Thereafter, by next friend, he exhibited his petition in habeas corpus to secure his release from confinement on the ground that the decree of committal by the chancery court was void for want of jurisdiction of appellant. On the hearing in the present case it was shown by the record in the committal proceedings that no process was issued therein for appellant, and there being no process, of course none was served on him. And it is nowhere shown that the minor was present at the committal hearing, if that be deemed material.
Process was issued for and was served on his father, and also on his grandfather and grandmother, the minor being in the custody of the grandparents at the time. It is contended by the School that Section 7252, Code 1930, under which the committal was had, does not require process to the infant, and that, therefore, none was necessary.
The answer to that contention is found in Jack v. Thompson, 41 Miss. 49, 50, which involved the validity of a judicial proceeding wherein a minor was apprenticed and wherein the proceedings were had without notice to him. The court said: "The act does not require this notice, and doubtless the court below, looking to the act of the legislature as the source and measure of its duty, as well as of its power, for this reason deemed it unnecessary. But the principle is universal, that no judgment, order, or decree is valid or binding upon a party who has no notice of such proceeding against him. The court must not only have jurisdiction of the subject-matter, but also of the person, to give validity to its final judgments, orders, and decrees, and it is not in the power of the legislature, under our constitution to dispense with this notice either actual or constructive." See Bryant v. Brown, 151 Miss. 398, 424, 118 So. 184, 60 A.L.R. 1325.
Reversed and remanded.