Mrs. Annie Decker, defendant, died at Picayune, Miss., December 7, 1924.
On January 25, 1929, the heirs of plaintiff and the heirs of defendant were made parties by the order of this court, and the latter heirs, being nonresidents, were ordered to appear and become parties to the suit within three months from the publication of the order, which was published in the Herald, a weekly paper in Algiers, Orleans parish, La., on February 7, February 28, and March 21, 1929.
A motion to dismiss the appeal has been made on the ground that the heirs of the deceased defendant have failed to appear and make themselves parties to the suit within three months from date of publication of the order, and, in the alternative, movers pray that the cause be heard and determined as in other cases.
The order relied upon by movers was issued in accordance with section 3 of rule XVII of the court rules of the Supreme Court, which provides that: "If the proper representative of the appellant or appellee, who has died pending the appeal, be not known, or does not reside within the state, the opposing party may, on affidavit, obtain an order that, unless he shall appear and become a party, the appeal will be dismissed. Such order shall be addressed to the party by registered mail, where the address is known, and shall be published, in English, three times within sixty days from date of order, fifteen days to intervene between publications, in a newspaper printed in the place where the court sits, and, upon proof of such publication, and suchmailing, where the address is known, and, in default of *Page 745 appearance, the appeal may be dismissed, or the cause heard and determined, as in other cases."
In the application for the order for publication made by movers, the names of the heirs of the deceased defendant are given, together with their respective places of residence and street numbers, and with the rural route address of one of the heirs living near Concord, Tenn. The other heirs live in Knoxville in the same state.
The addresses of these heirs were known to movers. Consequently these heirs were entitled to have the order of this court of date January 25, 1929, forwarded to each of them by registered mail, in addition to the publication of this order in a newspaper published in the place where the court sits.
There is no proof in the record that this order has been sent by registered mail to these heirs, in addition to the publication of the order in a newspaper in the place where the court sits, as is required by section 3 of rule XVII of this court. Notice in the present case of the order by registered mail is as essential as notice of the order by publication, since notice by both of these methods is in the nature of a citation of the parties, is expressly required by the rule of this court, and must be strictly complied with.
Besides, in answer to the motion to dismiss, the heirs of the deceased defendant have made themselves parties to this suit, and oppose the motion on the ground that they and their counsel of record were not aware of this motion, or of any motion to make them parties to this suit until April 20, 1929, when their answer was filed.
For the reasons assigned, it is ordered that the motion to dismiss the appeal be denied, and that the case be heard and determined in due course.
O'NIELL, C.J., absent, takes no part. *Page 746