James v. McMullen

• Decision Date: 09 February 1999
• Docket Number: No. 98-CA-00146 COA.,98-CA-00146 COA.
• Citation: 733 So.2d 358
• Parties: Eric D. JAMES, Appellant, v. Kevin McMULLEN, Appellee.
• Court: Mississippi Court of Appeals

733 So.2d 358

Eric D. JAMES, Appellant, v. Kevin McMULLEN, Appellee.

No. 98-CA-00146 COA.

Court of Appeals of Mississippi.

February 9, 1999.

Donald Wayne Medley, Hattiesburg, Attorney for Appellant.

M. McIntosh Forsyth, Richton, Attorney for Appellee.

BEFORE BRIDGES, C.J., DIAZ, PAYNE, and SOUTHWICK, JJ.

DIAZ, J., for the Court:

¶ 1. Eric James appeals the decision of the Forrest County Circuit Court to deny his motion for a stay of enforcement of a judgment entered against him on June 1, 1994. James asserts on appeal that there was no valid judgment entered because there was an absence of service of process. We find that James waived service of process by signing the judgment under the caption, "Read, Agreed, and Approved." Therefore, we affirm the decision of the circuit court.

FACTS

¶ 2. On May 27, 1994, a complaint was filed in the Forrest County Circuit Court by Kevin McMullen against Eric James and other defendants. No service of process was issued at this point. A copy of that complaint was furnished to James's attorney. After a meeting with James's attorney, an agreed judgment was entered by the circuit court on June 1, 1994. The judgment outlined that the court had personal and subject matter jurisdiction. Furthermore, the judgment was signed by James under the caption, "Read, Agreed, and Approved." Additionally, James's attorney, James D. Harrell, IV, also signed the agreed judgment.

DISCUSSION

¶ 3. The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process. Amenability to jurisdiction means that a defendant is within the substantive reach of a forum's jurisdiction under applicable law. Service of process is simply the physical means by which that jurisdiction is asserted.

DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983) (internal citations omitted). Mississippi law is clear that process must be issued in an action in order for jurisdiction of the court to commence:

The principal is universal that no judgment order or decree is valid or binding upon a party who has had no notice of the proceeding against him. The court must not only have jurisdiction of the subject matter, but also of the persons of the parties to give validity to its final judgment.

Rice v. McMullen, 207 Miss. 706, 727, 43 So.2d 195, 201 (1949). However, the Mississippi Supreme Court also stated that the "actual knowledge by a defendant of the pendency of a suit against him is immaterial, `unless there has been a legal summons or a legal appearance.'" Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991)(citing Mosby v. Gandy, 375 So.2d 1024 (Miss.1979))(emphasis added).

¶ 4. In the case sub judice, James signed the actual judgment under the caption, "Read, Agreed, and Approved." Although service of process was not issued, James and his attorney both signed the judgment which constituted James making a legal appearance in the matter. Here, the judgment set forth both the personal and subject matter jurisdiction of the circuit court. Since James signed the judgment which indicated that he "Read, Agreed, and Approved" of its contents, we find that the circuit court correctly held that he waived service of process by making a legal appearance and was therefore not entitled to a stay of enforcement on a judgment legally entered against him.

¶ 5. THE JUDGMENT OF THE FOREST COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

BRIDGES, C.J., THOMAS, P.J., IRVING, KING, LEE, PAYNE, JJ., CONCUR.

SOUTHWICK, J., CONCURS WITH SEPARATE OPINION JOINED BY McMILLIN, P.J. and COLEMAN, J.

SOUTHWICK, J., concurring

¶ 6. The majority is correct in its conclusion, but I write separately since in my view the analysis requires that additional statutes and rules be considered.

¶ 7. The central question arises from these two facts: 1) on May 27, 1994, a complaint was filed by McMullen against James; 2) on June 1, 1994, without process ever being issued, an agreed final judgment was entered acknowledging the amount of debt owed. That judgment was signed by an attorney for each party as well as by the parties themselves.

¶ 8. James first sought relief from this judgment under Rule 60(b) on September 22, 1994. M.R.C.P. 60(b). He alleged that his attorney failed fully to explain the proposed judgment and that he was not afforded adequate time to review the matter before signing the document. The motion was denied January 27, 1995. On October 2, 1997, another motion for relief from judgment was filed, this time raising the failure to serve process as well as allegedly erroneous and fraudulent statements made by McMullen in the 1994 complaint. It is from the denial of this second Rule 60 motion on January 23, 1998 that appeal has been taken.

¶ 9. James refers us to several precedents that have held that a judgment is invalid without service of process, even when the defendant is actually aware of the litigation. See, e.g. Mansour v. Charmax Industries, Inc., 680 So.2d 852 (Miss. 1996)

. What is important about these pronouncements is the context in which they were made. When a defendant is aware of a suit but is never served with process and does not appear in the litigation, there can be no judgment entered against him.

¶ 10. On the other hand, service of process is unnecessary if a defendant enters an appearance without insisting on being served. The Rules of Civil Procedure set out one procedure for waiving process, but that was not followed here:

(e) Waiver. Any party defendant who is not an unmarried minor, mentally incompetent, or convict of felony may, without filing any pleading therein, waive the service of process or enter his or her appearance, either or both, in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof. Such waiver of service or entry of appearance shall be in writing dated and signed by the defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto be proven by two (2) subscribing witnesses before some officer authorized to administer oaths. Any guardian or conservator may likewise waive process on himself and/or his ward, and any executor, administrator, or trustee may likewise waive process on himself in his fiduciary capacity. However, such written waiver of service or entry of appearance must be executed after the day on which the action was commenced and be filed among the papers in the cause and noted on the general docket.

M.R.C.P. 4(e). We are confronted with the effect of an implied waiver of process or entry of appearance that did not comply with the formalities of Rule 4(e).

¶ 11. The reason for the waiver provision was explained by the supreme court a few years after a 1936 statute that is almost identical to the later Rule 4(e) was adopted:

All of our modern tendencies are to simplify proceedings so as to bring controversies to trial on their merits, and to administer justice according to law with as much speed as is consistent with due consideration of the matters involved. We think the statute authorizes the appearance without plea, and places safeguards around such waiver of process and entry of appearance as will prevent, as far as any pleading would, collusion in the suit or fraud upon the courts. We see no reason why parties may not appear under this statute during the term of Court and have their controversies adjudicated, where process had not been served, as fully and effectively as if it had been served in sufficient time to have taken a default for want of pleading.

Cullens v. Cullens, 187 Miss. 731, 193 So. 805, 807 (Miss.1940) (discussing an earlier codification of Miss.Code. Ann. § 13-3-71 (1972), repealed by Laws, 1991, ch. 573, § 141). A slightly earlier case stated that the form of the waiver was unimportant. The waiver could appear "at the bottom of the petition" filed by the other party, or could be "written on a separate sheet of paper acknowledged before the clerk and filed by him in the cause...." Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 2 (1939).

¶ 12. The requirements of a valid waiver under Rule 4(e) include that it must be in writing, dated, and signed by the defendant. I would hold that the waiver can be on a separate document or on a pleading whose primary purpose is for something else. Arguably each of those elements exist here by the signature of James on the dated agreed judgment. The signature, though, must be "duly sworn to or acknowledged" or two subscribing witnesses must swear to authenticity. M.R.C.P. 4(e). That did not occur. I find it unnecessary to resolve whether there is an additional defect arising from the fact that the document did not explicitly state that process was waived. There certainly is an implication of waiver of process when a defendant signs a judgment ending the litigation.

¶ 13. I would hold that no valid waiver of process and entry of appearance was entered under this Rule. Failing to comply with Rule 4(e) is critical only if the rule is the sole means to make an entry of appearance without having been served with process. The majority implicitly finds that Rule 4(e) is not exclusive since it holds that a formal appearance in the litigation waives all service of process defects. That makes intuitive sense. Rule 4(e) usefully provides for a document in the court file indicating that a defendant who was never served with process made an appearance early in an action. The supreme court has long recognized other means to make an appearance. Indeed, a defendant is often held to have made an appearance when very little has been filed at all.

¶ 14. Appearance issues can arise both when a defendant has not been served, and also when a defendant arguably not subject to long-arm jurisdiction has received service but does not wish to submit to jurisdiction. Whether an appearance has occurred can be a fact...