Owen v. Payne, 47804

• Citation: 301 So.2d 293
• Decision Date: 07 October 1974
• Docket Number: No. 47804,47804
• Parties: Earl OWEN and J. O'Neal v. George C. 'Pete' PAYNE.
• Court: United States State Supreme Court of Mississippi

Page 293

301 So.2d 293

Earl OWEN and J. O'Neal v. George C. 'Pete' PAYNE.

No. 47804.

Supreme Court of Mississippi.

Oct. 7, 1974.

Gillespie & Lenoir, Gulfport, Hurlbert & O'Barr, Biloxi, for appellants.

Oscar B. Ladner, Gulfport, for appellee.

SMITH, Justice:

The present appeal arises out of a suit by George C. 'Pete' Payne, as complainant, against Earl Owen and Lonnie J. O'Neal, as defendants, in which Payne demanded an accounting for sums alleged to be due him under a contract for personal services. The appeal is from a decree entered by the Chancery Court of Harrison County, First Judicial District, refusing to vacate or set aside a final decree, based upon a decree pro confesso, which had awarded a money judgment to Payne against Owen and O'Neal in the sum of $6,512.73.

Payne's bill of complaint charged that he had been employed by Owen and O'Neal under an oral agreement whereby he was to receive for his services ten percent of the net profits of a certain business operated by them. It was alleged in the bill that Payne had been paid 'only the amount that they (O'Neal and Owen) wanted him to have and paid the balance to themselves and that they never gave to your Complainant (Payne) a copy of their receipts and an accurate accounts (sic) of their expenditures. . . . (T)hat by reason thereto (sic), that he is entitled to and this Honorable Court should require of the Defendants, an accurate account of all their receipts and expenditures.'

Payne then proceeds to allege 'on information and belief, which he verily believes to be true,' that ten percent of the net receipts to which he was entitled would be $6,512.73.

Process in the case was made returnable to the May Term, 1973. On May 14, the first day of the term, defendant's counsel discussed with counsel for Payne the proposition of obtaining additional time to answer. Payne's attorney had no objection to the granting of further time for the filing of the answer, but there appears to have been a misunderstanding as to how much time would be required. Payne's attorney understood that an extension of only three additional days was contemplated. Defense attorney did not so understand and when the matter was presented to the chancellor, fifteen days were requested and granted. This was discovered by Payne's counsel when he examined the court docket on May 18, 1973, but nmo complaint seems to have been make by counsel about the longer time.

In a conversation between counsel for the parties occurring on May 29, 1973, it is agreed that defense counsel informed counsel for complainant that an answer and accounting had been prepared. But counsel for Payne recollects that he added 'and has been filed.' Defense counsel, however, recalls that he said only 'and will be filed.'

It is uncontradicted that, in fact, the answer and accounting had been prepared and had been sworn to by Owen and O'Neal on May 28, the day before the above conversation took place. The originals of these documents were placed in the United States mail, addressed to the court clerk, on Friday, June 1, the final day of the May Term, and, at the same time, copies were mailed to complainant's counsel. These documents actually were not received by their respective addressees until Tuesday, June 5. Monday, June 4, was a legal holiday.

Nothing seems to have transpired in the case until, on June 1, the final day of the term, counsel for complainant examined the court docket and then noted that it did not reflect that an answer or accounting had been filed with the court clerk. Thereupon, counsel returned to his office and prepared (1) motion for decree pro confesso, (2) decree pro confesso, and (3) final decree. Under the terms of the latter, complainant was awarded a money judgment against defendants for $6,512.73, the sum, it was alleged in the bill, Payne 'verily believed' they owed him. These documents were presented to the chancellor, without notice to defense counsel and without his knowledge. The chancellor sustained the motion and entered the decree pro confesso. Upon that decree, without proof, a final decree was entered, awarding the money judgment against the defendants for the said sum of $6,512.73.

Defense counsel was not apprised of any of this until June 5. As soon as he found out about it, immediate steps were taken directed toward having set aside the pro confesso and final decree. A sworn bill, recounting the substance of the facts related above, was filed, attacking the entry of the decrees and praying that they be set aside. The chancellor heard the matter but declined to set aside either decree and defendants now appeal here.

It appears that counsel for the parties to this litigation maintain their offices in close proximity to the courthouse. It is unclear why defense counsel chose to entrust the answer, and accounting, which had been prepared, admittedly, on May 28, to the United States mail, rather than 'hand deliver it' to the court clerk. There does not appear to be a Mississippi statute dealing with the filing of pleadings by mail, although Mississippi Code Annotated section 11-5-59 and section 13-3-83 expressly permit the mailing of amendments and supplements to pleadings and of certain notices. The latter section provides that a notice so mailed shall be effective as of the date of mailing.

But, as stated, we find no similar provision with respect to the filing...