We think that in the opinion set out above we gave undue consideration to what appears in the record as an order for publication not signed by the register. We did not duly consider at that time the testimony of the register in connection with that instrument. His testimony is admissible on collateral attack to show whether or not the court acquired jurisdiction of the person of the defendant to support a decree of divorce based upon a decree pro confesso. Ex parte Griffith,209 Ala. 158, 159, 160, 95 So. 551. The testimony of the register shows that such instrument was not his act; that he did not sign or file nor approve it as his own, and that it was placed in the file by complainant's counsel. We cannot give consideration to it under those circumstances.
But the register did sign and file an instrument which we think may be liberally, termed an order of publication. That instrument was the act of the register, and it was duly published and posted as required *Page 220 by Rule 6, Chancery Practice. It was supported by a sufficient affidavit showing that the residence of the defendant was unknown, and therefore that it was not necessary to mail him a copy of it, and respondent in that suit is not here complaining, and has taken no steps to set it aside. We are committed to the principle that the requirements of Rule 6, Chancery Practice, are mandatory. Anthony v. Anthony, 221 Ala. 221,128 So. 440; Wilkerson v. Wilkerson, 230 Ala. 567,161 So. 820. But the construction placed upon that rule should not be so strict and literal as to annul a decree when its essential features have been met.
When the register makes an order of publication, it is predicated upon an affidavit containing the essential facts which justify the order. An order so made upon the basis of that affidavit is a ministerial and not a judicial act of the register. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731; Cummings v. Brown, 181 Mo. 711, 81 S.W. 158; 50 Corpus Juris 528, note 35. The order is part of the process, and does not have to be recorded on the minutes of the court, Cameo Realty Corp. v. Long, 101 Fla. 277, 134 So. 47, and is not within the requirements of Rule 90, Chancery Practice.
The instrument may be called an order if it impliedly requires the defendant to act and the use of any particular word or form of words is not necessary in order to designate it as an order, and no form is prescribed by the rule. If it informs the defendant that a suit has been instituted against him by a named party in a certain court of a certain county, and that unless he appears and makes defense against it within a certain time or by a named date a decree pro confesso will be entered against him after a certain time, it should properly be designated as an order as well as a notice. It contains a requirement as to what the defendant should do and that is in the nature of an order, and it contains all of the essential features of Rule 6, Chancery Practice, except that it does not name the paper in which the order is to be published, and the rule so directs.
But we think that it is an unsubstantial omission not sufficient to strike down the decree of the court based upon the decree pro confesso by the register showing a due publication of the notice and order. In fact there is authority so holding. 50 Corpus Juris 529, § 182, p. 532, note (c); Kane v. McCown, 55 Mo. 181.
We have therefore reached the conclusion that the instrument signed by the register and published should properly be designated an order within the meaning of Rule 6, supra, and that it is such a compliance with that rule as will sustain the jurisdiction of the court rendering the decree of divorce upon a decree pro confesso properly rendered by the register.
It is also claimed that the bill fails to allege a statutory ground for divorce, and therefore that the court is without jurisdiction. This is a collateral attack, and so considered we think the bill is sufficient to invoke jurisdiction as against that attack. We do not think an enlargement is necessary.
The application for rehearing is therefore overruled.
GARDNER, C. J., and THOMAS, LIVINGSTON and STAKELY, JJ., concur.
BROWN and SIMPSON, JJ., dissent.