Overstreet v. Liberty Mut. Ins. Co.

• Decision Date: 29 May 1972
• Docket Number: No. 46684,46684
• Citation: 263 So.2d 528
• Parties: Roy A. OVERSTREET v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 528

263 So.2d 528

Roy A. OVERSTREET v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 46684.

Supreme Court of Mississippi.

May 29, 1972.

Rehearing Denied July 3, 1972.

W. S. Murphy, Lucedale, for appellant.

Eaton, Cottrell, Galloway & Lang, Ben H. Stone, Gulfport, for appellee.

RODGERS, Presiding Justice.

This is a suit on a workmen's compensation claim, filed in the Circuit Court of George County, Mississippi, by the appellant Roy A. Overstreet against the defendant insurance carrier for ABC Mid-South Theaters, Inc., under the workmen's compensation laws of Alabama. The appellee was duly summoned to answer the claim, but failed to appear, and a default judgment was taken by the appellant at the regular term of the George County Circuit Court on August 26, 1969. The regular term of the George County Circuit Court was adjourned in August, 1969. Thereafter, on September 16, 1969, the present attorney for the appellee wrote a letter to the Circuit Clerk of George County at Lucedale, Mississippi, requesting the court file in the case against the appellee insurance company. On September 22, 1969, the appellee filed a motion in vacation requesting that the court set aside the default judgment obtained at the past term of court upon the grounds that the attorney's office had been damaged by an unusual windstorm, and also upon the ground that the action was based upon an accident in Alabama and was subject to the Alabama workmen's compensation law; that under the Alabama law the insurance carrier cannot be sued directly and, therefore, the Circuit Court of George County did not acquire jurisdiction against the appellee insurance company. The Circuit Judge entered an order in vacation on September 30, 1969, setting aside the default judgment. On October 10, 1969 (in vacation) the appellee insurance company filed a second motion in which the appellee requested the court to dismiss the cause of action upon the ground, inter alia, that suit could not be brought directly against the insurance carrier of an Alabama employer. On the second day of December, 1969, a second order was entered again setting aside the default judgment taken at the regular term of court.

The circuit court convened on February 22, 1971. The appellant Roy A. Overstreet filed a motion on February 22, 1971, requesting the circuit court to set aside the orders entered, in vacation, after the August term of the circuit court.

On March 2, 1971, the circuit court overruled the motion of appellant requesting the court to set aside the vacation orders. The court also dismissed the cause of action. Appellant, Roy A. Overstreet, has appealed from the judgment of the circuit court to this Court and contends that the circuit court had no authority to set aside a default judgment, rendered at a regular term of court, after the court had adjourned, where no fraud was shown to have entered into the procurement of the judgment. This is undoubtedly the law in this state and we have so held from the early history of Mississippi. Hyde Construction Company v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170 (1963); George v. Standard Oil Company of Kentucky, 239 Miss. 712, 124 So.2d 858 (1960); National Casualty Company, et al. v. Calhoun, 219 Miss. 9, 67 So.2d 908 (1953); Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945).

In George, supra, this Court said:

'This Court has definitely held that the power of the court to set aside a default judgment ends with the term of the court at which it is rendered unless the facts in reference thereto make a case coming within the chancery court's jurisdiction to set aside a judgment on the ground of fraud, accident or mistake. . . .' 239 Miss. at 717, 124 So.2d at 860.

The appellee's attorney alleges that there was an accident which prevented him from filing pleadings in the case. He said his office was damaged by the famous Camille windstorm that swept ashore on the Mississippi coast; that his papers were lost; and that he did not realize that he was required to file pleadings in the case before the term of court had expired.

We do not here consider whether the circuit court has jurisdiction to set aside a judgment valid on its face in vacation because of an unfortunate mistake or accident, since in either case the facts here presented are not of such a nature as would warrant the court to take such action.

If the default judgment entered by the Court in term time on August 26, 1969, were a final judgment it could not be set aside by the circuit judge in vacation. Strain v. Gayden, 197 Miss. 353, 20 So.2d 697 (1945). We must, therefore, first determine whether or not it was a final judgment.

The declaration filed in this case is a claim for an undetermined amount due the claimant for compensation under the Alabama workmen's compensation law. The amount to be paid for compensation depends on the seriousness of the injury. The amount of medical benefits due claimant depends upon the kind and amount of medical treatment. In order to determine these factors it is necessary that proof be offered in court.

Section 1547, Mississippi Code 1942 Annotated (1956) is in the following language:

'Judgment-when final. In actions founded on an instrument of writing showing the sum due, or on an open account, where a copy of the account is filed with the declaration, if judgment be rendered on demurrer, by confession, or by default, the clerk shall calculate the amount due for principal and interest, and judgment shall be entered therefor and be final, if not set aside during the term. And in all actions where the sum due does not so appear, and in all actions sounding in damages, if the defendant do not plead, interlocutory judgments may be taken, on which writs of inquiry shall be awarded, which may be executed at the same term either by the jurors attending court or by the judge, at the option of the plaintiff. And after a writ of inquiry shall be executed, and judgment rendered thereon by the court, the same shall not be set aside unless good cause be shown therefor on oath; and in such case the defendant shall plead immediately, and the plaintiff shall not thereby be delayed of his trial.'

The default judgment taken in term time appears to be a final judgment, but an examination of the record reveals that there was no writ of inquiry issued, and no testimony was taken (as to the amount due) before a jury or the trial judge.

In Jenkins v. Wilkerson, 76 Miss. 368, 24 So. 700, (1899) where a writ of inquiry was not issued, this Court said:

'. . . (A) writ of inquiry should have been awarded, and these facts submitted to the finding of the jury; and, because judgment final was entered without the award of such writ, the judgment must be reversed, and the cause remanded.' 76 Miss. at 372, 24 So. at 701.

See also: Allison & Hyde v. Williams, 142 Miss. 825, 108 So. 142 (1926).

In the case of Dedeaux v. Lawler, 253 Miss. 854, 179 So.2d 779 (1965) the defendant, appellant, made a motion to set aside a default judgment fixing the amount due by appellant sheriff for the value of a boat held by him under a replevin writ and which was destroyed. On appeal to this Court we pointed out that a writ of inquiry was necessary under the facts in that case to establish the value of the property destroyed. We remanded the case so that the value of the destroyed property could be determined, but we permitted the default judgment to stand as to liability of the sheriff.

In the instant case, Section 1547, Mississippi Code 1942 Annotated (1956) permitted the plaintiff to take 'an interlocutory judgment' in favor of the plaintiff. The judgment entered in the instant case, therefore, could not be a final judgment, and at best could only be considered an 'interlocutory judgment' in favor of the plaintiff, appellant.

We are next confronted with the question as to whether or not the interlocutory default judgment could be reopened in vacation after the court had adjourned. In George v. Standard Oil Company of Kentucky, 239 Miss. 712, 124 So.2d 858 (1960) this Court held that a motion to set aside a default judgment could not be entertained in vacation. In 1962 the Mississippi Legislature amended Section 1519 of the Mississippi Code 1942 by Chapter 297 of the Laws of 1962, by adding to that section the following words:

'(b) On motion of either party and written notice for ten (10) days to the attorney of record for the opposing party or parties all demurrers and motions may be determined in vacation, in the discretion of the court, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct.

'When notice is given by mail two (2) days shall be added to the prescribed period.' (Emphasis added)

This section was made effective July 1, 1962. We had this amendment to Section 1519, Mississippi Code 1942 before us in the case of Hyde Construction Company v. Highway Materials Company, 248 Miss. 564, 159 So.2d 170 (1963), and in that case we had the following to say:

'The order setting aside the default judgments and the orders granting new trials were authorized by the new amendment to § 1519, Miss. Code 1942, Rec. Since this amendment does not authorize the circuit court to try cases and render final judgments in vacation, we are of the opinion, and so hold, that the orders entered by the trial judge in vacation serve to sustain the motion to set aside the default judgment and grant new trials, but that the case was then continued for final hearing to the next term of the court.' (Emphasis added) 248 Miss. at 575, 159 So.2d at 174.

In the case at bar the appellant contends that the failure of appellee to set out good cause on oath in support of his motion to set aside the default judgment was fatal. This Court addressed itself to this particular contention in Hyde Construction Company v. Highway Materials Company, supra, wherein the Court said:

'We are of the opinion that app...