Metts v. State Dept. of Public Welfare, No. 54065

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PRATHER; PATTERSON
• Citation: 430 So.2d 401
• Decision Date: 06 April 1983
• Docket Number: No. 54065
• Parties: David L. METTS v. STATE DEPARTMENT OF PUBLIC WELFARE.

Page 401

430 So.2d 401 David L. METTS
v.
STATE DEPARTMENT OF PUBLIC WELFARE. No. 54065. Supreme Court of Mississippi. April 6, 1983.

Davey L. Tucker, Jackson, for appellant.

Sharon L. Shayeb, Jackson, for appellee.

Before BROOM, PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

This appeal challenges an order of filiation and child support secured by the Mississippi Department of Public Welfare and entered on default of the appellant, David L. Metts. Metts appeals from this order of the Chancery Court of the First Judicial District of Hinds County by assigning as error the (1) invalidity of the court order entered prior to a proper return date for

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process, (2) the denial of his motion to vacate the court order during term time upon showing an adequate defense, (3) the selection of venue in a county other than his residence, and (4) his denial of a jury trial on the paternity issue.

The record reveals that Linda Price is the natural mother of Crystal Price, born March 7, 1981. Both are Hinds County residents. On September 9, 1981, Linda Price signed an affidavit with the Hinds County Department of Public Welfare [Department] ¹ alleging that David L. Metts was the natural father of her minor child born out of wedlock.

Based upon this affidavit, the Department, through its Hinds County Director, filed a complaint in the Hinds County Chancery Court on December 29, 1981, ² against David L. Metts, a resident of Winston County. The complaint alleged that Metts was the natural father of Crystal Price and sought a court determination of paternity and child support.

On the same date of the filing of the complaint, the chancellor, in vacation time of the court, signed a fiat directing the issuance of process on Metts for a court hearing on this petition to be held on February 4, 1982, a date during the next upcoming term. The Hinds County Chancery Clerk properly issued process to the Winston County Sheriff to command Metts' appearance before the court at the appointed time and place for a hearing. In turn, process was personally served on Metts on January 9, 1982 by the Sheriff of Winston County.

On February 4, 1982, upon default of the defendant Metts to appear or plead, the chancery court entered its order of filiation and child support as requested in the complaint. However, the next day, Metts' attorney filed a motion to set aside the previous day's order.

The hearing on the motion to set aside the order was not heard immediately, but by order entered during the same term of court, the motion was set for hearing on March 10, 1982, being a date during the next regular term. On the date appointed for hearing, Metts filed another motion to set aside the previous order of filiation by alleging the additional grounds of incorrect venue and insufficiency of proof at the former hearing. Metts also filed an answer constituting a general denial of all allegations against him and propounded numerous interrogatories to the complainant.

Nonetheless, on March 10, 1982, the chancery court heard and dismissed the motions to set aside the February 4, 1982 order of filiation and support. Thereafter, alleging "supervening" facts, Metts filed another motion for rehearing of the filiation order. This motion alleged newly discovered information concerning the identity of two men with whom Linda Price had had intercourse within ten months prior to the birth of her child. But, this motion was also dismissed.

On April 8, 1982, Metts filed still another motion to vacate the February 4, 1982 judgment based on a "lack of process" upon him and a denial of a jury trial. This motion too was dismissed. The appeal to this Court was then taken.

I.

Addressing the first assigned error, concerning the question of when process should have been returnable, the Court recognizes that a defendant is entitled to a minimum specified time to answer in defense of an action. In a chancery suit of this nature, process must be executed at least five days before the defendant is required to answer. Miss.Code Ann. Secs. 9-5-99, 13-3-13 (1972).

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In addition to the five day requirement, sections 13-3-13 and 9-5-99 provide other criteria for determining the earliest date for a return day. Section 13-3-13 provides that a summons may be made returnable, without a court order, to (1) the first day of the next regular term of court or (2) a monthly rules day in vacation. ³ As a third alternative, pursuant to section 9-5-99, a chancellor may by fiat set a date in term time or in vacation to which process may be made returnable. ⁴ In the instant case, the chancellor followed the procedure provided by section 9-5-99. Thus, the question presented is what is the earliest return date required under that statutory procedure.

The appellant here asserts that he personally received the summons on January 9, 1982, and that the next regular term of court began on January 11, 1982. As a result he contends that, since there was not a period of five days or more between the January 9 and 11 dates, the return date should have been set for the next regular term following the January 11 term. The date of that term began on February 22, 1982.

This reasoning overlooks the enlarged authority of the chancellor, acting in term time or in vacation, to set by order a return date for process in term time or vacation. Here, the chancellor did what was permitted by section 9-5-99. On December 29, 1981 he ordered that the return day for service on Metts, as well as the hearing, to be February 4, 1982. Since summons was personally served on Metts on January 9, Metts clearly had at least five days notice, and the case was triable on his default on February 4. ⁵ Moreover, to follow this interpretation advanced by the appellant would delay and hinder emergency matters routinely heard by chancery courts and would restrict rather than enlarge their powers to act in the earliest possible time frame....