Bean v. Clark, 39986
| Decision Date | 27 February 1956 |
| Docket Number | No. 39986,39986 |
| Parties | Eldridge R. BEAN v. June CLARK. |
| Court | Mississippi Supreme Court |
Roach & Jones, McComb, for appellant.
Cassidy, McLain & Pigott, McComb, for appellee.
In this case the plaintiff, June Clark, a resident citizen of Pike County, Mississippi, sued the appellant, Eldridge R. Bean, a resident citizen of said county, and also B. B. Dean, a nonresident, in an action for damages for personal injuries resulting from an automobile accident. The said resident defendant was charged with negligence in the operation of the automobile owned by the nonresident defendant, who was a passenger in the automobile at the time of the accident.
Personal service of process was had upon the resident defendant on March 7, 1955, and the suit was returnable to the March 1955 term of the Circuit Court of Pike County Mississippi, which convened on Monday, March 21, 1955. There was service of process had upon the resident agent of the nonresident defendant on February 14, 1955. A judgment was demanded against both defendants in the sum of $15,000.
On March 7, 1955, the nonresident defendant filed his petition for a removal of the cause to the District Court of the United States, Jackson Division of Mississippi, together with his bond in that behalf.
It is asserted in the brief of the appellant, who was the resident defendant in the trial court, that when this case was called on the docket of the Circuit Court in Pike County, it was made known that a petition and bond had been filed by the nonresident defendant for the removal of the cause to the Federal Court, and that it was announced in open court that the cause had been so removed; that a notation was made on the issue docket: 'Transferred to Fed.Ct. 3-21-55.' We must assume that this statement in the brief of the appellant is true, since the same is unchallenged. That it was understood by the counsel representing the nonresident defendant, who also represented the resident defendant, that the entire cause had been removed to the Federal Court and that no further proceedings would be had in the circuit court unless and until the cause was remanded from the Federal Court; and that therefore no answer to the declaration was filed by the resident defendant except in the Federal Court.
No plea or answer having been filed in the circuit court by the resident defendant, it appears that on April 1, 1955, the plaintiff filed a motion for a judgment by default against the resident defendant, and for a writ of inquiry to assess the damages. It was so ordered, and a judgment by default was rendered against the resident defendant in favor of the plaintiff in the sum of $2,500 and all costs. The appeal here is taken by the resident defendant from that judgment.
On July 28, 1955, an order was rendered by the circuit judge, upon motion of the attorneys for the resident defendant, directing that the entry made by the court on its issue docket hereinbefore mentioned, be transcribed and included in the record of this cause on the appeal to this Court.
It is asserted in the brief of appellant, and the statement is unchallenged, that the attorneys for the resident defendant did not learn of the motion for, nor the rendition of, the default judgment until sometime after the adjournment of the March term of the court. We are of the opinion that under Sections 1441-1447, inclusive, 28 U.S.C.A., that...
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