Ross v. Federal Deposit Ins. Corp.
| Decision Date | 25 April 1972 |
| Docket Number | No. 46638,46638 |
| Parties | Mrs. Jeannette Joyce ROSS et al. v. FEDERAL DEPOSIT INSURANCE CORP. |
| Court | Mississippi Supreme Court |
Claude A. Chamberlin, William S. Turner, Aberdeen, Burgin, Gholson, Hicks & Nichols, Columbus, for appellants.
Patterson, King, Lee & Malski, Jan P. Patterson, Aberdeen, for appellee.
In a case heard by agreement in vacation without a jury, Federal Deposit Insurance Corporation recovered a judgment against W. C. Fulton, M.D., in the Circuit Court of Monroe County for $41,113.00. The present case involves both an appeal by Fulton's administratrix from an order refusing to revive a motion to set aside the judgment and the appeal of W. C. Fulton Health Center, Inc., from a final judgment by default entered against it under the provisions of Mississippi Code 1942 Annotated section 1907 (1956) for failure to respond as required by that section to an execution issued under the Fulton judgment and levied upon it. The two appeals were considered together by this Court.
We have no difficulty in affirming the decision of the circuit court in declining to revive the motion to set aside the original judgment recovered by appellee against W. C. Fulton, M.D. The record makes it clear that the judgment is valid and that the attack now sought to be made upon it is without merit. Moreover, it comes too late.
The appeal by W. C. Fulton Health Center, Inc., presents a more complex question. Separate writs, one of garnishment and the other of execution were issued upon the Fulton judgment and levied against or served upon W. C. Fulton Health Center, Inc. The writ of execution was served under Code Section 1907 for the purpose of subjecting Fulton's stock, shares and interest in the W. C. Fulton Health Center, Inc., to the satisfaction of appellee's judgment against Fulton. On the return date, Health Center having failed to answer, a motion for judgment by default was made against Health Center, the garnishee. A motion was also made for judgment by default against Health Center for the full amount of the Fulton Judgment for failure to supply in a sworn response to the levy of the writ of execution certain information required by Code Section 1907. Before any judgments were entered, however, Health Center, acting through its president and attorney, applied for and was granted further time. Thereafter, before the hearing, Health Center filed a motion to quash the writ of garnishment. This motion was confessed. No motion was made to quash the execution.
No sworn answer was made to the writ of execution, as such. However, Health Center filed in the case a full sworn answer entitled 'Answer of Garnishee, W. C. Fulton Health Center, Inc.' Also, filed was an affidavit of the person named in the writ of execution as its clerk, denying that she was an agent, servant or employee of Health Center. No motion was made to quash or invalidate service of the writ of execution.
After a hearing, the trial court ruled that Health Center was in default, having failed to comply with the requirements of section 1907, in that it had failed to file a sworn written response to the writ of execution. Thereupon, the court entered judgment by default against Health Center for the full amount of the Fulton judgment under Code Section 1907.
Several arguments are advanced by Health Center for reversal of the judgment entered against it. It is said, among other things, that Code Section 1907 was repealed by implication as being in conflict with the Uniform Securities Transfer Act in 1946. It was not, of course, among the enumerated sections expressly repealed by that Act. We are unable to agree that the enactment of the Uniform Securities Transfer Act had the effect of repealing Code Section 1907.
Proposition Number One of Health Center's brief is as follows: 'The appellant corporation has filed sufficient responsive pleadings so that there was no default upon which a default judgment could be entered.'
In this section of the brief, following criticism directed at the mode of service of the writ of execution, it is said:
(A)nd more important that all information which could be expected or required of the appellant corporation in response to either the purported levy of execution or the writ of garnishment was contained in the sworn answer of the appellant filed on that date. In that answer it was set forth upon oath of the appellant's president that the principal defendant, Dr. W. C. Fulton, was not in any way a creditor of the appellant; that the said Dr. Fulton owned 500 shares of preferred stock in appellant corporation of a par value of $100,00 per share; and that the said Dr. Fulton had a lease on certain property of the appellant described therein; and that this constituted the only interest of the judgment debtor in the appellant corporation, and thus complied with Section 1907 of the Mississippi Code, if appellant was required under the law to respond as set forth in that section of the Code.
The sworn pleading of the appellant signed by its president was styled an Answer of Garnishee, but it was in fact both an answer to the writ of garnishment and a full response to the purported levy of execution. (Emphasis added).
Moreover, at the hearing, the president and attorney for Health Center dictated into the record a lengthy stipulation, in the course of which the attorney for appellee and the court made frequent interpolations. In this 'stipulation,' Health Center undertook to supply information relating to Fulton's stock or...
To continue reading
Request your trial
-
Bell v. City of Bay St. Louis
...motion for default judgment has thus been regarded as committed to the sound discretion of the trial court. Ross v. Federal Deposit Insurance Corp., 261 So.2d 471, 474 (Miss.1972); Campbell v. Campbell, 231 Miss. 658, 661-662, 97 So.2d 527, 528-529 (1957). This has never meant that the tria......