Nowlin v. City of Pearl

365 So. 2d 952, 1978 Miss. LEXIS 2431
CourtMississippi Supreme Court
DecidedDecember 13, 1978
DocketNo. 51016
StatusPublished
Cited by5 cases

This text of 365 So. 2d 952 (Nowlin v. City of Pearl) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nowlin v. City of Pearl, 365 So. 2d 952, 1978 Miss. LEXIS 2431 (Mich. 1978).

Opinion

COFER, Justice, for the Court:

This is an appeal from a decree of the Chancery Court of Rankin County approving, ratifying and confirming an enlargement of appellee, City of Pearl (Pearl), with slight modifications.

Appellant, Nowlin, has assigned five errors:

1. The lower court committed reversible error in finding that it had jurisdiction over the parties and entering its final decree thereon because appellee, petitioner below, failed to prove posting of notices as required by law.

2. The lower court committed reversible error in overruling appellant’s motion to dismiss because the Annexation Ordinance was not recorded in the Ordinance Book either after its passage or before the filing of the Petition as required by law.

3. The chancellor was manifestly wrong in holding that the six year time period for providing services to the areas proposed to be annexed was reasonable.

4. The testimony of one sole governmental official of Pearl, the Mayor, capable of implementing promised improvements in the areas proposed to be annexed was totally insufficient and inadequate to support the chancellor’s finding that the annexation was reasonable and thus the chancellor’s finding was manifestly wrong and the decree entered thereon should be reversed.

5. The chancellor was manifestly wrong, considering all the essential testimony in this case, in holding that annexation by Pearl was reasonable, and the decree should be reversed.

As observed, appellant, in his first two assignments, attacks the jurisdiction of the trial court for alleged insufficiency of process and asserts that objectors’ motion to dismiss the cause for failure of Pearl to record in its ordinance book the prerequisite ordinance of enlargement should have been sustained.

In the first of these assignments, he points to Mississippi Code Annotated, section 21-1-31, (1972), which, on petitions for annexation of territory, requires that “notice thereof shall be given in the same manner and for the same length of time as is provided in Section 21-1-15 with regard to the creation of municipal corporations.”

The latter statute says in part that:

[954]*954[N]otice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory.

Appellant calls attention to section 13-1— 145, as setting out the method of proof of posting, which provides:

The posting of any notice required by law or the order of any court may be proved by filing a copy of the notice, with an affidavit of posting, in the court in which the proceeding was had in which the notice was required. Such affidavit shall be competent evidence in all courts, and shall be prima facie evidence of what it states.

As a part of its notice to interested parties, the record shows that five copies of the notice were posted, two in Pearl and one in each of the three areas sought to be annexed. These are, by the return thereon, shown to have been posted at five public places, the particular places shown in the returns thereon. A deputy sheriff posted the notices as reflected in the returns.

It is contended that either the officer who posted the notices should have made an affidavit of posting or he should have been produced to show that he thus posted them. In support of his position on the posting and recording of the precedent ordinance, appellant cites Myrick v. Incorporation of Stringer, 336 So.2d 209 (Miss.1976).

In the Myriek decision, it is said:

The privilege of incorporation of a municipality can be granted only by the legislature and the procedure must be strictly complied with which grants to the chancery court the duty to determine whether public convenience and necessity will be served by the incorporation,

and

The notice required by this statute (21-1 — 15) is in lieu of personal service and it is well settled that a statute providing for notice in lieu of personal service must be strictly complied with and where the statute required the posting of notices, the notices must be so posted and the record must show that they were posted as required by the statute. Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459 (1920).

(336 So.2d at 210).

In that case the record failed to show the posting of notice. We further said:

No affidavit was filed as provided for in this section (13-1 — 145) and no attempt was otherwise made to prove that the notices were posted as required by statute. Consequently, the finding of the chancellor that proper notice was given as required by statute is not supported by the proof. (Emphasis added).

(336 So.2d at 210-211).

While strict compliance is necessary, section 13-1-145 says that the posting of the notices may be proved by an affidavit of the posting. This method of proving the notice does not preclude another method of proving such posting. Still recognizing that strict compliance is necessary, the posting of the notices by a deputy sheriff of Rankin County with returns thereon, reading with necessary variances to reflect where posted, the returns on all five notices are substantially as follows:

State of Mississippi
Rankin County
Cause No. 15,717
Chancery Court, Rankin County
I have this day executed the within writ by personally posting a true and correct copy of the above and foregoing summons in a public place in the area proposed to be annexed, as follows, to-wit:
(naming place)
This the 4th day of October, 1977.
J. B. Torrence, Sheriff
By: Clifford Boggan, D. S.

In the Langstaff case, supra, it was said:

Where the statute requires a notice to be posted at a particular place, the notice must be so posted and the record should

[955]*955show that it was posted in accordance with the statute. Where a pleading states generally that notice was given as required by law, and the notice and the officer’s certificate thereto shows specifically by notation thereon how it was done, such notice and notation will control the general averment.

(122 Miss. at 492, 84 So. at 460).

72 CJ.S. Process § 90, p. 1128 (1951), says in part:

. The return is an official act, and constitutes the official oath of the officer as to the facts stated in the return. . . . (Emphasis added).

The solemn returns of the officer on these notices are sufficient to meet the notice requirement of posting contained in the statute.

When the attack was made on process, Pearl, earlier than the time required therefor, caused posting of three notices in each of the three areas sought to be annexed.

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Bluebook (online)
365 So. 2d 952, 1978 Miss. LEXIS 2431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowlin-v-city-of-pearl-miss-1978.