Code, 1858, §§ 4352, 4353 (deriv. Acts 1787, ch. 22, § 1; 1801, ch. 6, § 14; 1833, ch. 15, § 1; 1833, ch. 47, § 3; 1835-1836, ch. 43, § 5; 1855-1856, ch. 164, § 2); Acts 1915, ch. 42; Shan., §§ 6162, 6163; Code 1932, §§ 10431, 10432; T.C.A. (orig. ed.), § 21-212; modified.
Rule Reference. This section is referred to in Rule 10 of the Tennessee Rules of Juvenile Procedure.
Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 52, 116, 136, 137, 443.
Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-4-4 — 1-4-6.
Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 80; 11 Tenn. Juris., Equity, § 47; 20 Tenn. Juris., Newspapers, § 3; 21 Tenn. Juris., Process, § 10.
Law Reviews.
Broadening The Bases of Individual In Personam Jurisdiction in Tennessee, 22 Tenn. L. Rev. 237.
Cited: Finch v. Frymire, 36 S.W. 883, 1896 Tenn. Ch. App. LEXIS 13 (1896); Rast v. Terry, 532 S.W.2d 552, 1976 Tenn. LEXIS 607 (Tenn. 1976); Marlowe v. Kingdom Hall of Jehovah's Witnesses, 541 S.W.2d 121, 1976 Tenn. LEXIS 532 (Tenn. 1976); Dungan v. Dungan, 579 S.W.2d 183, 1979 Tenn. LEXIS 424 (Tenn. 1979); Hamm v. Hamm, 614 S.W.2d 366, 1980 Tenn. App. LEXIS 421 (Tenn. Ct. App. 1980); Watson v. Waters, 694 S.W.2d 524, 1984 Tenn. App. LEXIS 3192 (Tenn. Ct. App. 1984); Morrow v. Bobbitt, 943 S.W.2d 384, 1996 Tenn. App. LEXIS 489 (Tenn. Ct. App. 1996); Lipscomb v. Doe, 32 S.W.3d 840, 2000 Tenn. LEXIS 663 (Tenn. 2000); Perry v. Unknown Parties, — S.W.3d —, 2010 Tenn. App. LEXIS 797 (Tenn. Ct. App. Dec. 28, 2010).
1. Constitutionality. 2. Purpose. 3. Strict Construction. 4. —Unknown Parties. 5. —Grounds for Publication. 6. Chancery Jurisdiction — Scope. 7. Judgment Against Nonresident. 8. —“Nonresident” Defined. 9. —Personal Judgment. 10. —Property Impounded. 11. —Attaching Interest of Nonresident Partner. 12. —Vendor's Lien — Enforcement Against Nonresident. 13. —Quieting Title Against Nonresident. 14. —Reformation of Deed. 15. —Tax Sale. 16. Inability to Find Defendant. 17. —Affidavit. 18. —Premature Return of Inability to Find. 19. Corporation. 20. —Having No Officers or Agents. 21. —Utility District. 22. Residence of Defendant Unknown. 23. Non Compos Mentis — Process Necessary. 24. Return to Rule Days — Application of Rule. 25. Questioning Validity of Notice. 26. Defense After Pro Confesso. 27. Persons Not in Being. 28. Diligent Inquiry. 29. Constructive Service Insufficient.
It is within the powers of a state to provide by statute for bringing into its courts nonresidents having interests in real property situated within the state for the purpose of enforcing a lien, or clearing a title, or subjecting the property to the satisfaction of debts and that jurisdiction in such cases may be obtained by publication of notice to such nonresidents. Connor v. Tennessee C. R. Co., 109 F. 931, 1901 U.S. App. LEXIS 4260 (6th Cir. Tenn. 1901).
Originally, courts of chancery acted only in personam. Instance after instance arose where it was seen to be necessary that in order to do complete justice this rule should be relaxed. As a result the legislature passed this section. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).
Originally courts of chancery acted only in personam, and the rule is only changed by statute, which must be strictly construed. Grace v. Hunt, 3 Tenn. 341, 1 Cooke 341, 1813 Tenn. LEXIS 27 (1813); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).
The right conferred by subdivision (a)(7) of this section being statutory, it must be strictly construed. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).
Proceedings against unknown parties are invalid upon publication alone, which does not strictly comply with statutory requirements. Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn. 166, 15 S.W. 737, 1890 Tenn. LEXIS 36 (1890).
This section provides for two classes of cases without discriminating between them. The one class requires the fact on which the publication is grounded to appear on the face of the bill, or by affidavit attached; and in the other class, the fact upon which publication is grounded must appear by the officer's return. If the bill is false, the proceedings are fraudulent and void, and the complainant must suffer the consequences; but if the officer's return be false, the proceedings are not thereby invalidated, and the remedy of the defendant is against the officer alone, unless there be collusion between the officer and the complainant. Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).
Chancery court properly set aside a default judgment and dismissed a petition filed by the former members of a dissolved church to sell the church's property because, inter alia, the service of process by publication on a descendant of the original property owners was insufficient and his conduct did not preclude him from setting aside the judgment as void where the former members knew his address and that he possibly had a claim to the property, the case did not fit within any of the specified circumstances in which constructive service was allowed, the descendant did not waive insufficient service of process, and his alleged delay did not preclude an attack on the void judgment. In re Beckwith Church of Christ, — S.W.3d —, 2016 Tenn. App. LEXIS 716 (Tenn. Ct. App. Sept. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 54 (Tenn. Jan. 19, 2017).
Chancery is not confined in the exercise of its jurisdiction to decrees in personam. Robert v. Frogge, 149 Tenn. 181, 258 S.W. 782, 1923 Tenn. LEXIS 91 (1924).
Personal service of process on a nonresident defendant is dispensed with by statute, in chancery cases. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).
The court cannot acquire jurisdiction by constructive or substituted service of process to render personal judgment against a nonresident defendant who does not appear; the rule is otherwise with respect to resident defendants. Frolich & Barbour v. Hanson, 155 Tenn. 601, 296 S.W. 353, 1926 Tenn. LEXIS 85 (1927).
The courts of this state have full authority to proceed against a nonresident upon seizure of his property within the state and publication, and such nonresident may be bound in such proceeding so far as his property in the state is concerned, but no further. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).
A personal judgment may not be rendered against a nonresident defendant of whom jurisdiction is acquired only by publication notice. Lawson v. American Laundry Machinery Co., 165 Tenn. 180, 54 S.W.2d 712, 1932 Tenn. LEXIS 35 (1932).
A personal judgment may not be rendered against a nonresident defendant against whom jurisdiction is acquired only by publication. Turnblazer v. Smith, 214 Tenn. 277, 379 S.W.2d 772, 1964 Tenn. LEXIS 475 (1964).
By way of dicta it was said that the word “nonresident” may include domiciliaries sojourning or residing elsewhere. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).
And, further if the statute should be so construed, the notice published pursuant to it would not be wanting in due process. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).
No personal judgment can be rendered against a nonresident served with notice only by publication. Perry v. Young, 133 Tenn. 522, 182 S.W. 577, 1915 Tenn. LEXIS 116, L.R.A. (n.s.) 1917B385 (1916).
Courts of law cannot entertain suit against a nonresident for a personal demand, upon publication alone, without attachment or other impoundment of property situated within the jurisdiction of the court; and want of jurisdiction over the nonresident is not, in such case, cured by the fact that a codefendant, jointly sued, but severally liable for the demand, was duly served with process. Farmers' & Traders' Bank of Allen County, 88 Tenn. 279, 12 S.W. 545, 1889 Tenn. LEXIS 48 (1889).
In a suit in chancery by minority certificate holders in a resident incorporated fraternal beneficiary association against it and a nonresident similar association to declare illegal and ultra vires an attempted merger of the two associations, to restrain the disposition of the assets of the resident association under such void contract, and to require the return to the nonresident association of its assets illegally and wrongfully received by the resident association and its officers, jurisdiction of the nonresident association may be obtained by substituted process and constructive service by publication, where jurisdiction of the resident association has been obtained by personal service of process, appearance, and answer, and the jurisdiction of the subject matter, as the property of the corporations, has been obtained by impoundment by injunction, by which the court acquires jurisdiction to determine the entire controversy. Knapp v. Supreme Commandery, U. O. G. C. W., 121 Tenn. 212, 118 S.W. 390, 1908 Tenn. LEXIS 17 (1908).
Where interest of a partner in assets of a nonresident partnership is attached, other partners may be brought in by publication in order to ascertain the rights of the partners. Gaines v. Fourth Nat'l Bank, 52 S.W. 467, 1898 Tenn. Ch. App. LEXIS 158 (1898).
As attachment of land is not necessary to enforce a vendor's lien thereon, the court acquires jurisdiction by publication against a nonresident defendant, conforming to the requirements of this section, without complying with the requirements of §29-6-145. Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873); Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 444, 67 S.W. 856, 1901 Tenn. LEXIS 46 (1902).
In suit to quiet title and to have rights declared, subdivision (a)(1) applies. Ray v. Haag, 1 Tenn. Ch. App. 249 (1901).
Where in a suit to reform a deed the court had jurisdiction of the subject matter and three of the defendants named in such suit resided in the county where the suit was brought and the other nonresident defendants were served by publication of the decree of the court allowing such reformation was immune from collateral attack. Globe & Republic Ins. Co. v. Shields, 170 Tenn. 485, 96 S.W.2d 947, 1936 Tenn. LEXIS 20 (1936).
Publication of notice in city newspaper of proceeding by city to sell land of nonresident for nonpayment of city taxes was constructive notice and binding on nonresident, since nonresident was not entitled to actual notice of accrual of city taxes on property and of proceeding to sell property for unpaid taxes, even though property had formerly been outside of city limits and was later taken in by city on extension of city limits. Moore v. Memphis, 184 Tenn. 92, 195 S.W.2d 623, 1946 Tenn. LEXIS 264 (1946).
Tax sale was void where jurisdiction over defendant was supposedly acquired by publication based on a not to be found return, but record showed that no return had in fact been made. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737, 1964 Tenn. LEXIS 429 (1964).
The return of the sheriff “not to be found” is a legal prerequisite to a publication upon that ground and without such return any decree returned by the chancery court is void to such party. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737, 1964 Tenn. LEXIS 429 (1964).
A “reasonableness” standard is codified in the requirement of diligent inquiry; taxing authorities are not required to undertake extraordinary efforts to discover the identity and whereabouts of an interested party. Freeman v. City of Kingsport, 926 S.W.2d 247, 1996 Tenn. App. LEXIS 24 (Tenn. Ct. App. 1996).
Pursuant to T.C.A. §36-1-117(m)(3) and T.C.A. §21-1-203(a), there was no affidavit from the petitioners or their attorney detailing their efforts to locate the biological father, there was no order of the court making any findings about efforts to locate him, and there was no transcript or statement of the evidence as to any testimony in this regard; when constructive service had not been completed and petitioners' counsel learned of the defendant's address, there arose an obligation on the part of petitioners' counsel to attempt service by other, better means that were more likely to achieve actual service, and the fundamental fairness of a judicial proceeding required nothing less. In re M.D.W., — S.W.3d —, 2008 Tenn. App. LEXIS 185 (Tenn. Ct. App. Mar. 26, 2008).
An order of pro confesso cannot be sustained where the order of publication was based upon an affidavit filed that the defendant was not to be found, because the statute requires that the order of publication should be based upon the officer's return. Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872).
The sheriff's return on the process of “not to be found in my county,” if premature, as where the process was not retained by the sheriff until the return day, would not authorize the publication. McGavock v. Young, 3 Cooper's Tenn. Ch. 529 (1877); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881).
Except to send a letter to encourage the property owner to receive process in person, the county did not attempt to give actual notice of the tax lien suit before it sold the land; notice did not comply with T.C.A. §§21-1-203 and67-5-2415 as the county did not exercise due diligence before returning the summonses not found and it did not comply with due process. Wilson v. Blount County, 207 S.W.3d 741, 2006 Tenn. LEXIS 993 (Tenn. 2006).
Subdivision (a)(7) of this section does not authorize service by publication upon a public corporation when the corporation has no officers or agents, and has never had any, and no one is named in the act creating the corporation upon whom service may be had. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).
Attempted service on defendant utility district created by private act by means of service on secretary of state and by publication in a proceeding for a declaratory judgment that private act was unconstitutional was invalid where no commissioner or officer for utility district existed. Bradley v. Rock Gardens Utility Dist., 186 Tenn. 665, 212 S.W.2d 657, 1948 Tenn. LEXIS 596 (1948).
In a divorce suit against defendant whose residence is unknown, a recital in the bill and in the decree that the defendant is a nonresident will not give the court jurisdiction of the defendant. In a suit against a defendant whose residence is unknown, the complainant must state on oath, either in his bill or in an affidavit, and must prove that the residence of the defendant is unknown and that it cannot be ascertained after proper and diligent inquiry. A divorce decree rendered without actual or constructive notice is void; and if constructive notice be relied on, the statutes providing for the same must be strictly observed. Gallagher v. Knoxville Iron Co., 5 Tenn. Civ. App. (5 Higgins) 718 (1914).
Trial court did not obtain personal jurisdiction over the father through the attempted service by publication because the record contained no statement made under oath or by affidavit that service of process had been attempted on the father at his usual place of abode or last known residence and that delineated facts supporting the allegation that he was no longer in the State; therefore, any portion of the trial court's judgment related to child support was void ab initio. State ex rel. Catalano v. Woodcock, — S.W.3d —, 2016 Tenn. App. LEXIS 469 (Tenn. Ct. App. July 5, 2016).
Service of process upon a non compos mentis defendant is not dispensed with by statute, and service is necessary to confer jurisdiction. Smith v. Smith, 159 Tenn. 36, 15 S.W.2d 747, 1928 Tenn. LEXIS 59 (1929).
Where process was not served upon person later declared to be of unsound mind judgment was invalid regardless of appearance of guardian ad litem. In re McCartney, 31 Tenn. App. 171, 213 S.W.2d 25, 1948 Tenn. App. LEXIS 81 (Tenn. Ct. App. 1948).
A rule of court, making “any process” other than final process returnable to rule days, includes not only the process provided for in this section, but all process except that which is final. Fellows v. Cook, 57 Tenn. 81, 1872 Tenn. LEXIS 401 (1872).
Where a husband had actively aided wife in procuring a divorce in Tennessee from her former husband and had advised her not to correct an allegation in her complaint that her former husband probably claimed his legal residence in Massachusetts, the husband could not, in order to annul his own marriage, question the validity of the notice given to the former husband in the divorce proceeding on either the ground of fraud or lack of due process, particularly where the former husband had not questioned the notice or the divorce. Saul v. Saul, 122 F.2d 64, 1941 U.S. App. LEXIS 2907 (D.C. Cir. 1941).
In order to entitle the defendants to appear and defend after judgment pro confesso, they must all show merits, except in the cases of nonresidents and those whose residences are unknown. Owens v. Sims, 43 Tenn. 544, 1866 Tenn. LEXIS 85 (1866).
Where complainant held life estate in real property with remainder to her unborn child or children in fee, valid service by publication could not be had on such unborn child or children under provisions of this section in action by life tenant against such unborn child or children for permission to sell property and invest proceeds or to mortgage property for improvements or to have title vested in life tenant in fee. Rodgers v. Unborn Child or Children of Rodgers, 204 Tenn. 96, 315 S.W.2d 521, 1958 Tenn. LEXIS 249 (1958).
In the brothers' suit to void the tax sale regarding their previously jointly-owned inherited property, a directed verdict in favor of the new owners was proper as the process server used due diligence in attempting to serve the brothers with notice of the tax suit pursuant to T.C.A. §21-1-203(a)(3), and there was no violation of the brothers' due process rights, because of the deputy's actions or the constructive notice provided by the county after personal service on the brothers was unsuccessful. Smith v. Gregory, 253 S.W.3d 175, 2007 Tenn. App. LEXIS 676 (Tenn. Ct. App. Nov. 6, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 292 (Tenn. Apr. 14, 2008).
In a termination of parental rights proceeding, given the absence of information regarding steps taken to identify the father, an adoption agency did not carry its burden of demonstrating the diligent inquiry required by T.C.A. §21-1-203(a) in order to use service by publication, as simply asking the birth mother if she knew the name of the father and then giving up was not sufficient; the location of the party, the name of the host of the party, the names of attendees of the party, and the type of vehicle in which the child was conceived were all obvious areas of inquiry. Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 2007 Tenn. App. LEXIS 750 (Tenn. Ct. App. Dec. 5, 2007), appeal denied, The Adoption Place, Inc. v. Doe, — S.W.3d —, 2008 Tenn. LEXIS 90 (Tenn. Feb. 4, 2008).
Order terminating a biological father's parental rights was vacated where petitioners did not conduct a diligent inquiry under T.C.A. §21-1-203(a) to attempt to determine the biological father's residence; the record was devoid of any information regarding petitioners' efforts to locate the biological father beyond petitioners contacting the putative father registry. In re F.M.B.P.W., — S.W.3d —, 2008 Tenn. App. LEXIS 176 (Tenn. Ct. App. Mar. 26, 2008).
Default judgment terminating a mother's parental rights was void because the father failed to make diligent efforts to locate the mother to accomplish personal service and failed to seek a court order allowing him to serve the mother by publication; the only efforts the father took to locate the mother were sending service of process to a home in which he knew the mother no longer resided and consulting with counsel. Turner v. Turner, — S.W.3d —, 2014 Tenn. App. LEXIS 398 (Tenn. Ct. App. July 7, 2014), aff'd in part, rev'd in part, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).
Tennessee statutes authorize dispensing with personal service of process in a proceeding to terminate parental rights only if the defendant's residence is unknown and cannot be ascertained upon diligent inquiry, and the plaintiff has asked for an order authorizing constructive service by publication and has supported the request with an affidavit, and only when the residence of the defendant cannot be obtained through diligent inquiry may a party resort to constructive service by publication. Turner v. Turner, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).
Record contained neither a motion from the father requesting an order authorizing constructive service by publication nor an affidavit describing the diligent inquiries that were made to locate the mother's whereabouts or her residence, and there was no order from the trial court authorizing constructive service by publication; the father's failure to comply with the statutory requirements necessary for resorting to constructive service by publication deprived the trial court of personal jurisdiction over the mother, and the judgment terminating the mother's parental rights was void. Turner v. Turner, 473 S.W.3d 257, 2015 Tenn. LEXIS 831 (Tenn. Oct. 21, 2015).
Even if plaintiff were allowed to utilize the statutes in this breach of contract case, the constructive service by publication attempted by plaintiff was insufficient, given that defendant made his home outside the area of normal circulation of the paper plaintiff chose, and thus the publication was not reasonably calculated to give defendant notice of the suit. Ebulueme v. Onoh, — S.W.3d —, 2019 Tenn. App. LEXIS 260 (Tenn. Ct. App. May 24, 2019).
Collateral References.
Application of doctrine of idem sonans or the like to substituted or constructive service of process. 45 A.L.R.2d 1090.
Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service. 46 A.L.R.2d 1364.
Jurisdiction to render judgment for arrearage of alimony without personal service upon defendant of whom court had jurisdiction in the original divorce suit. 168 A.L.R. 232.
Power to grant annulment of marriage against nonresident on constructive service. 43 A.L.R.2d 1086.
Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication. 47 A.L.R.2d 423.
Equity 322.