Strain v. Gayden
| Decision Date | 22 January 1945 |
| Docket Number | 35757. |
| Citation | 197 Miss. 353,20 So.2d 697 |
| Court | Mississippi Supreme Court |
| Parties | STRAIN v. GAYDEN. |
Bell & McBee and Kimbrough & Kimbrough all of Greenwood, for appellant.
Pollard & Hamner, of Greenwood, for appellee.
The appellee, W. J. Gayden, as plaintiff, filed a suit in the Circuit Court of Leflore County against appellant, D. E Strain, defendant, and in his declaration he set out that the appellant owned certain lands in Leflore County, and that in April 1943, he employed appellee to sell the same at the price of $125 per acre, and for his services in so doing appellee was to receive a commission of five per cent on the total sale price. This was a verbal contract. It is alleged that thereafter appellee contracted a prospective purchaser took him upon appellant's lands and showed the same to said prospective purchaser at the price of $125 per acre, and informed appellant that said party was interested in the lands, and that later on the 29th day of September 1943, appellant executed to the said purchaser a deed of conveyance to said lands at and for the price of $125 per acre, aggregating $27,875, and appellant became obligated to pay to appellee five per cent of the total sales price, in accordance with the oral contract of employment, which commission amounted to $1,393.75, for which amount suit was brought. It is also alleged that demand had been made for such payment and that the appellant had refused to pay it.
The declaration contains two counts, one suing for commissions as fixed by the contract and the other suing for commissions on a quantum meruit basis.
This declaration was filed on October 27, 1943, and process duly served upon appellant on the same day. The circuit court convened in regular session on November 1, 1943, so that under the rule of computation there were five days between the filing of the declaration and the issuance of process and the service thereof and the convening of court.
Shortly after the process was served upon the appellant, he employed counsel to represent him, which was between the time of the service of the process and the convening of the court. Leflore County has what is known as a 'split term' of circuit court. That is to say, the first twelve days of the term are designated under the statute for the trial of civil cases, and the last twelve days for the trial of criminal cases. The statute further provides that the grand jury shall be empaneled on the first day of the term, which would be within the two weeks allotted to civil cases, and if there are no civil cases to occupy the time of the court that criminal cases might be tried within the same two weeks. On the first day of the term, the court empaneled and charged the grand jury, and empaneled two petit juries and on the same date the court sounded the civil docket. Counsel for appellant was present but counsel for appellee was not. When this case was reached on the docket by the court, appellant's counsel announced to the court that it would not be triable at the term, only five days service of process having been had. The record does not disclose what the court said. Counsel for appellant had previously informed appellant at the time of his employment, after having examined the file in the case, that the case would not be triable at the approaching term. There was no agreement between counsel that appellant might have time within which to plead. No motion was made by counsel for appellant for time within which to plead, and the court entered no order granting the appellant time within which to plead, and no pleas were filed by appellant on the return day or any other day during the term.
Judgment by default was taken against appellant on November 19, 1943, which was next to the last day of the term, and which was during the period of the court allotted to the criminal docket. Appellee's counsel in their briefs state that they delayed taking default judgment until that day in anticipation that if the appellant wished to contest the case, he would employ counsel and file some sort of pleading to the declaration sued on. However, as stated, supra, no motion, plea or demurrer was filed. No request was made for time, and there was no agreement for time, and no grant by the court of time to plead. So that on the date above mentioned appellee was granted judgment by default in accordance with the declaration. No motion was made during the November term to set aside the judgment thus rendered.
However, counsel for appellant filed a motion to set it aside at the May term 1944, accompanied by the affidavit of counsel for appellant, and a plea of the general issue and notice thereunder, and an affidavit of meritorious defense. In his affidavit, appellant's counsel said: 'His failure to file any pleading in behalf of defendant in said cause at said November term of the court was due entirely to his fixed belief and understanding that said cause had been continued for said term, and that said failure was in nowise due to intentional or conscious neglect on his part.'
A stipulation between counsel setting forth in substance and effect the above facts was filed May 18, 1944, and contained this paragraph: 'That it was agreed by counsel for plaintiff and defendant in open court, the court consenting thereto, on said first day of the present term of this court, that defendant's said motion would be heard and determined by the court during the criminal part of the present term thereof; * * *.' On the same day, the motion to set aside the default judgment was amended to include the following additional ground: 'Because said judgment taken by plaintiff against defendant at the November 1943 term of this court, the same being in the sum of $1,393.75, was not asked for or taken by plaintiff until Friday, the 19th day of November 1943, which day and date was during the last twelve days of said term of said court, or the criminal term thereof, and when there had been no agreement between plaintiff or his attorneys on the one hand and defendant or his attorneys on the other for the taking of any action in said cause during said last twelve days of said term of said court, or during any part of said term.'
Counsel for appellant said he did not learn of entry of the default judgment until some time in April 1944, when he went to the office of counsel for appellee to confer about setting the case for trial at the approaching May term 1944 of Circuit Court, which was the first information he had that said judgment had been rendered, and said cause was not pending and triable.
At the May term of Court 1944, the court overruled the motion to set aside the default judgment, and an appeal was taken from the judgment of the court.
When the case reached this Court, appellee filed a motion to dismiss the appeal as not having been perfected within the time required by law, which motion this Court overruled and refused to dismiss the appeal.
The errors assigned here are that the court below was without authority at law to award said judgment during that part of the November 1943 term of the court which had been allotted by the Legislature for the conduct of criminal business only (sic), and the court by so doing ignored the division of the...
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