Deposit Guar. Nat. Bank v. Roberts

• Decision Date: 12 February 1986
• Docket Number: 55718,Nos. 55291,s. 55291
• Citation: 483 So.2d 348
• Parties: DEPOSIT GUARANTY NATIONAL BANK v. John S. ROBERTS.
• Court: Mississippi Supreme Court

Page 348

483 So.2d 348

DEPOSIT GUARANTY NATIONAL BANK v. John S. ROBERTS.

Nos. 55291, 55718.

Supreme Court of Mississippi.

Feb. 12, 1986.

Pat H. Scanlon, Young, Scanlon & Sessums, Jackson, for appellant.

Richard E. Stratton, III, Stratton & Fairly, Brookhaven, for appellee.

Before PATTERSON, SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

The Bank appeals these two consolidated cases in an attempt to renew their judgment against John S. Roberts in order that they might execute upon it.

January 12, 1971, the Bank received a judgment for $112,549.57 against Roberts in the Lincoln County Circuit Court.

January 7, 1978, five days before the 7-year statute of limitations to enforce the judgment was to run, the Bank filed a declaration to renew their judgment. Summons was issued for Roberts, which was personally served and returned to the court on April 13, 1978. Unaware that they had process, the Bank issued alias process and made some four further attempts to have Roberts summoned. These attempts all resulted in a return of "Not Found".

Unaware that summons had been served upon Roberts, the Bank's attorney wrote to the Lincoln County Circuit Clerk and requested that his case be continued until process could be had. On September 28, 1979, the last day of the September term of Lincoln County Circuit Court, the suit to renew the judgment was dismissed as a stale case.

December 7, 1979, the Bank moved to reinstate the case to the docket and at the February, 1980, term the circuit court ordered the cause to be reinstated to the active docket. In the meantime, on August 7, 1978, the Bank had held an execution sale on the lien created by the original judgment. The sale was of an interest in a pipeline owned by Roberts. In March of 1981, the Chancery Court of Jefferson County presiding over the receivership involving the pipeline ruled that the Bank's Lincoln County judgment had not been renewed within the 7-year limitation period, and therefore the execution sale was void.

The Bank appealed the Jefferson County Chancery Court ruling to this Court, and we held that the Bank's suit to renew the judgment was pending and remanded the Jefferson County case with directions that if the judgment was indeed renewed the execution may be issued to enforce the judgment. Deposit Guaranty National Bank v. Biglane, Receiver, Roberts, et al., 427 So.2d 945 (Miss.1983).

May 20, 1983, Roberts answered the Lincoln County declaration to renew the judgment and raised as an affirmative defense the statute of limitations. Roberts also moved to set aside the reinstatement of the Bank's action to renew because of the Bank's failure to attach an affidavit to the motion setting forth good reasons for the reinstatement as is required by Uniform Circuit Court Rule 2.02.

Among other things, the Bank contended, in its response to the motion, that Mississippi Code Annotated Sec. 11-53-25 (1972), authorizing the clerk to move to dismiss stale cases, had not been complied with. The Bank further contended that Mississippi Code Annotated Sec. 15-1-69 (1972), as applied in Ryan v. Wardlaw, 382 So.2d 1078 (Miss.1980), saved this case from the 7-year statute of limitations.

The Circuit Court of Lincoln County held that it did not have personal jurisdiction over Roberts after the adjournment of the term of court during which the cause was dismissed as stale. The statute of limitations was tolled by the filing of the declaration to renew the judgment but when the action was dismissed the statute resumed running and the time expired five days after the conclusion of the September term.

The trial judge ruled that Ryan, supra, and the one-year saving statute, Mississippi Code Annotated Sec. 15-1-69 (1972), did not apply to the dismissal of causes as being stale absent a showing of fraud, mistake or deceit. The trial judge then sustained Robert's motion to set aside the order of reinstatement and sustained his affirmative defense of the 7-year statute of limitations. The Bank's suit was then dismissed with costs to the Bank.

On November 30, 1983, the Bank appealed the above decision, and on that same day filed another action to renew judgment in the Lincoln County Circuit Court based upon Ryan, supra, and Mississippi Code Annotated Sec. 15-1-69. Roberts again answered claiming Circuit Court Rule 2.02 and the affirmative defense of the statute of limitations. Roberts prevailed, and the Bank again appealed. Both cases were consolidated on August 29, 1984.

I.

WAS IT ERROR TO SET ASIDE THE ORDER THAT REINSTATED THE SUIT

TO RENEW JUDGMENT AFTER IT WAS DISMISSED AS A

STALE CASE?

Mississippi Code Annotated Sec. 11-53-25 (1972) provides as follows:

The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.

The opinion of the circuit court judge states that no action had been taken in this case for five terms. The Bank does not assign as error the propriety of the dismissal. It does allege, for the first time in its reply brief, that "good cause ... to the contrary" was shown as indicated by the letter attached to the response to the motion to set aside the reinstatement. This was the August 14, 1978, letter to the circuit clerk requesting that the case be continued until process could be obtained and a judgment entered.

A point raised for the first time in a reply brief does not have to be considered on appeal. Overstreet v. Allstate Insurance Co., 474 So.2d 572, 577 (Miss.1985). In any event, by the Bank's own admission, no further action was taken after August 14, 1978, at least four terms of the Lincoln County Circuit Court.

Rule 2.02, effective August 10, 1979, of the Uniform Circuit Court Rules, provides as follows:

Cases upon the civil issue docket, where process has not been served or where process has been served, and that have been called for trial for two terms of court, without any step taken, or trial demanded, shall be dismissed as stale, at plaintiff's cost without notice, unless good reason be shown for a further continuation; and no cause that has been so dismissed shall be reinstated without affidavit setting forth good reason for reinstatement. (emphasis added)

The Bank admittedly did not file an affidavit with the motion to reinstate; nevertheless, the motion was granted. In Mississippi Rice Growers Association v. Pigott, 191 So.2d 399 (Miss.1966), the trial court twice dismissed the case as stale and twice reinstated it. The appellant claimed that it was reinstated without notice and a hearing. We held "that a trial court can reinstate any case during that term of court, or change any order entered at that term of court, for any reason satisfactory to the court without notice to the adverse party." Id. at 405 (emphasis added).

In Howie v. Baker, 232 Miss. 661, 100 So.2d 1131 (1958), the case was dismissed with prejudice, on January 22, 1953. A motion to set aside the dismissal was sustained February 20, 1953. There is no mention that this was a different term of court; however, we held that "[t]he reinstatement at the same term of court of a dismissed cause must be left, in large measure, to the discretion of the court." 232 Miss. at 665, 100 So.2d at 115, (emphasis added).

The order of the trial court states that no affidavit setting forth good reason for reinstatement had been filed, and that no additional process was served upon Roberts before the orders of reinstatement were entered; however, the basis used by the trial judge for setting aside the reinstatement was that his court no longer had jurisdiction to do so after the term expired within which the case was dismissed. (In fact, no additional process is required. Mississippi Rice Growers Ass'n, supra.)

Generally, a default judgment cannot be set aside after the expiration of the term of court within which the default judgment was entered unless the motion to set aside or vacate was filed during that same term, or unless the judgment itself was defective, or fraud, mistake or accident was involved. Mississippi Action for Community Education v. Montgomery, 404 So.2d 320 (Miss.1981); Trailer Express, Inc. v. Gammill, 403 So.2d 1292 (Miss.1981); Martin v. Armstrong, 350 So.2d 1353 (Miss.1977); Alexander v. Killebrew, 321 So.2d 488 (Miss.1975); Evers v. Truly, 317 So.2d 414 (Miss.1975); Hyde Construction Co. v. Highway Materials Co., 248 Miss. 564, 159 So.2d 170 (1963); Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945).

As Mississippi Rice Growers Ass'n, supra, and Howie, supra, indicate, the general rule regarding dismissals is the same as default judgments--the dismissed case cannot be reinstated after the expiration of the term of court within which the dismissal was entered unless the dismissal was defective, or fraud, mistake or accident was involved. See also Carter v. Kimbrough, 122 Miss. 543, 84 So. 251 (1920); 27 C.J.S. Dismissal and Non-Suit Sec. 79 (1959). The reinstatement order in February of 1980 was clearly made after the term within which the dismissal was entered--September, 1979. Analogizing the default judgment cases cited above, we find that the Bank has not made a sufficient showing of fraud, accident or mistake. Furthermore, while the correctness of the original dismissal is not properly before this Court, even if it were, we find that the dismissal of the case as stale was not defective. Baker v. Moore, 176 Miss. 431, 169 So. 733 (1936); Mississippi Central R. Co. v. Brookhaven Lumber and Manufacturing Co., 165 Miss. 820, 147 So. 814 (1933).

We note Kemp v. Atlas Fertilizer and Chemical Co. 199 So.2d 52 (Miss.1967), wherein a "Decree Pro Confesso and Final Decree" was entered in chancery court. Five days after the two day term ended the appellee's motion to set aside that decree was granted. Faced with an appeal...