Lee v. Spikes

• Decision Date: 09 May 1927
• Docket Number: 26241
• Citation: 112 So. 588,145 Miss. 897
• Court: Mississippi Supreme Court
• Parties: LEE v. SPIKES. [*]

112 So. 588

145 Miss. 897

LEE v. SPIKES. ^[*]

No. 26241

Supreme Court of Mississippi

May 9, 1927

Division A

APPEAL from circuit court of Bolivar county, Second district HON. W A. ALCORN, JR., Judge.

Action by V. B. Spikes against M. A. Lee. Judgment for plaintiff and defendant appeals. Affirmed.

See also, 111 So. 450, and preceding case in this volume.

Judgment affirmed.

Somerville & Somerville, for appellant.

Clark, Roberts & Hallam, for appellee.

OPINION

COOK, J.

The appellee, V. B. Spikes, sued the appellant in the circuit court on a certain promissory note. At the return term in November, 1925, counsel representing the appellant secured an order of the court granting her thirty days' additional time within which to file a plea. No plea, however, was ever filed, and at the next regular term of the court, which convened on April 5, 1926, the cause was set for trial on April 15, 1926. On that date a judgment was entered which recites that:

"This cause coming on to be heard this day, came the plaintiff in person and by attorneys, and defendant, Mollie A. Lee, being called in open court, came not, but wholly made default, and it appearing to the court that defendant was personally and legally served with process herein returnable to the November term of this court and that she has not entered her appearance or filed any plea herein, on motion of plaintiff it is ordered that judgment be entered against her by default and that a writ of inquiry issue to ascertain the amount due by the defendant to the plaintiff on the promissory note sued on herein; and, said writ of inquiry having issued, thereupon came a jury of good and lawful men from the regular panel for the week, who, being duly elected, impaneled, sworn, and charged and having heard the evidence adduced and received the instructions of the court, retired to their jury room and presently returned into open court the following verdict," etc.

On April 17, 1926, the last day of the civil division of that term of court, the defendant filed a motion to set aside this judgment and grant her a new trial on the ground that she had employed counsel to represent her in the cause and that she had depended upon her counsel to file pleas and notify her when the cause was set for trial; that on the day the judgment was entered she received some information that the cause was set for that date, and thereupon she investigated and for the first time learned that her counsel was sick in bed and could not attend court to represent her; that as a matter of fact the recitals of the judgment that a jury had been impaneled in said cause were untrue, and that she had a meritorious defense to said cause. This motion was accompanied by the pleas which she desired to file, and which set forth in detail her defense.

This motion for a new trial was taken under advisement for hearing and judgment thereon during the criminal division of the term, and on the hearing of this motion the defendant testified that she had employed B. E. Green as her attorney in this cause; that on the afternoon of April 15, 1926, she learned that some action had been taken in the case, and thereupon she interviewed her attorney and was informed by...