Bryant, Inc. v. Walters

Decision Date13 August 1986
Docket NumberNo. 56337,56337
Citation493 So.2d 933
PartiesBRYANT, INC. v. Victor WALTERS.
CourtMississippi Supreme Court

Eugene L. Fair, Hattiesburg, for appellant.

John L. Jeffries, Laurel, for appellee.


HAWKINS, Presiding Justice, for the Court:

Bryant, Inc., (Bryant), appeals from a judgment of the circuit court of the First Judicial District of Jones County in favor of the defendant Victor Walters on a suit on open account.

Because the circuit judge erred in setting aside a default judgment entered in favor of Bryant against Walters, we reverse and render, reinstating the default judgment.


Bryant, Inc., is a Mississippi corporation engaged in the business of gasoline distributor, with principal offices in Hattiesburg. On May 22, 1984, it filed a complaint based upon open account against Victor Walters in the circuit court of the Second Judicial District of Jones County (Laurel), demanding judgment in the amount of $77,340.28 plus attorney fees of $19,335.00, for a total of $96,675.28. Noted in the complaint and attached as exhibits are an affidavit, a purported account, and a demand letter dated March 28, 1984, written pursuant to Miss.Code Ann. Sec. 11-53-81.

The affidavit asserts that the "statement" attached is a "true and correct statement of the claim and accounts" for $77,340.28, and that this sum is due from Victor Walters. The so-called "account," however, is a listing of the dates, invoice numbers, and respective amounts, totaling $77,340.28. The final exhibit is the copy of the letter from plaintiff's attorney to Walters that pursuant to Miss.Code Ann. Sec. 11-53-81 demand was made that he pay $94,123.12, presently due and if he failed to do so in thirty days they would be entitled to attorney's fees.

Walters was personally served with summons on May 24, 1984. This summons required him to appear in court on the third Monday of August, or August 20, 1984. It also notified him that he was required to plead on or before the first day of the court term, or within thirty days of service of process, whichever was first in time, and failure to do so would permit judgment to be entered by default.

On June 27 Bryant's attorney filed a request for entry of default with the clerk pursuant to Rule 55(a) of the Mississippi Rules of Civil Procedure, with an attached affidavit. The clerk on that day entered a default against Walters. On June 28 the circuit judge entered default judgment against Walters for $77,340.28 plus attorney fees of $19,335.00 totaling $96,675.28.

On August 20 Walters filed with the court a motion to set aside the judgment. He assigned two grounds: that the summons was returnable for August 20, 1984, and he thought no answer was due until then, and second, the pleadings did not conform to Miss.Code Ann. Sec. 11-7-45 in that there was no copy of the account or bill of particulars filed with the complaint. The affidavit attached to this motion stated that Walters had a meritorious defense in that the debt sued on was "contracted to" Victor Walters Distributors, Inc., a "viable corporation" and not to Walters individually.

At the hearing on this motion Walters testified his meritorious defense was that they were trying to pay Mr. Bryant all they owed him.

Also at the hearing Walters testified that it was a corporation which did business with Bryant, and that he had never done business with Mr. Bryant as an individual; and the checks in payment of the motor fuel were from the corporation, not himself. He conceded, however, that all Bryant invoices were to Victor Walters, not the corporation.

Walters also conceded the debt was due, but by his corporation, not himself. At no time did he testify he had told Bryant he was representing the corporation, not himself, in making the purchases.

Walters retained counsel when his wages were garnisheed on the judgment entered against him.

On September 17, 1984, the circuit court entered an order setting aside the judgment. The court held that Walters was not entitled to set aside the judgment because he thought an answer was not due until August 20, because the summons clearly stated an answer was due in thirty days at the most. The reason the court gave for setting the judgment aside was that there was not a proper itemized account attached to the complaint. The order gave Walters until September 24 to file an answer if the plaintiff did not amend its pleadings; otherwise not later than five days after filing of the amended complaint.

An amended complaint was filed on September 20. Attached to the complaint were copies of eight invoices for gasoline and diesel fuel. All show the fuel was sold to Victor Walters. None indicates a corporation.

On September 29 Walters answered with a general denial, followed by an affirmative defense that the debt sued on was "contracted to Victor Walters Distributors, Inc.," and not to "Victor Walters" individually. On October 2 Walters filed a motion for a change of venue to the First Judicial District of Jones County (Ellisville), which was sustained.

Although the answer denied the complaint, at trial it was stipulated the account was correct, and the only question was whether it was owed by the corporation or by Walters individually.

At trial Franklin D. Bryant, sole stockholder of Bryant, testified he had known Walters for several years, and pursuant to an agreement between the two he had begun selling Walters the motor fuel, which extended over a two-year period. Franklin Bryant always thought he was dealing with Walters individually, and only learned a few months prior to the discontinuance of the business relationship that Walters had a corporation. All invoices from Bryant, Inc., were to Victor Walters, none to any corporation. Mr. Bryant testified his corporation never sold anything to the Walters corporation.

Walters testified it was his corporation which bought motor fuel and it was corporate checks which paid for it. The checks on the purchase for which payment was made are headed "Victor Walters Distributors, Inc." Just above the signature, however, there is printed "Victor Walters, Distributor."

The issue submitted to the jury was whether or not the motor fuel was sold to the corporation or Walters individually.

The court gave the following requested defense instruction, over the objection of the plaintiff:


You are hereby instructed that if you find that Victor Walters Distributors, Inc., incurred the obligation sued on then you shall return a verdict for the defendant.

Vol. IV., p. 402.

There was a jury verdict for the defendant and judgment entered thereon. Bryant has appealed.


The answer to this question must come from an analysis of Rule 55 and Rule 60(b) of the Mississippi Rules of Civil Procedure (MRCP), and decisions of the United States courts construing Rule 55 and Rule 60(b) of the Federal Rules of Civil Procedure (FRCP) containing provisions essentially identical with out state rules.

The pertinent provisions of Rule 55 read:

Rule 55

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor.... If in order to enable the court to enter judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court's discretion, or order such references as it deems necessary and proper.

(c) Setting Aside Default. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Rule 55(a) of the FRCP is identical to our state rule. Rule 55(b) of FRCP, authorizes the clerk to also enter a judgment if default of the sum due is certain. Both the Federal and our state Rule 55(c) are identical.

The plaintiff in this case acted within Rule 55 in demanding, and the circuit judge followed it in granting a default judgment. More than thirty days after personal service on Walters, Bryant filed a request for default, supported by proper affidavit. The clerk entered default. The next day the circuit judge entered a default judgment. Walters having failed to file any response, these procedings were in literal compliance with the rule. 1

Final judgment having been entered against Walters, much more was required of Walters to get it set aside than would have been the case if only a default had been entered.

This entails an examination of the pertinent portions of Rule 60(b):

Rule 60


(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

* * *

(2) accident or mistake;

* * *

(4) judgment is void;

* * *

(6) any other reason justifying relief from the judgment

It should be noted that our Rule 60(b)(2) is different from Federal Rule 60(b)(1) 2, as follows: our state rule authorizes relief upon a showing of "accident or mistake" and the Federal rule grants authority upon a showing of "mistake, inadvertence, surprise, or excusable neglect."

Mississippi Rule 60(b)(4) and (6) and the Federal rule are identical.

The circuit judge made an analysis of whether the default judgment should be set aside under the "accident or mistake" criteria and found Walters was not entitled to have the judgment set aside for this reason. In setting aside...

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