Wilson v. South Cent. Mississippi Farmers, Inc.
| Citation | 494 So.2d 358 |
| Decision Date | 17 September 1986 |
| Docket Number | No. 55687,55687 |
| Parties | Howard WILSON, et al. v. SOUTH CENTRAL MISSISSIPPI FARMERS, INC., et al. |
| Court | Mississippi Supreme Court |
Bobby L. Shoemaker, Bay Springs, Eugene C. Tullos, Raleigh, for appellants.
E. Howard Eaton, Taylorsville, John C. McLaurin, Jr., McLaurin & McLaurin, Brandon, for appellees.
Before HAWKINS, P.J., and DAN M. LEE and ANDERSON, JJ.
This appeal is brought from a judgment of the Circuit Court of Smith County wherein that court denied entry of default judgment and after a hearing, directed verdicts in favor of all appellees except South Central Mississippi Farmers, Inc.
The case consisted of seven "soybean" suits which were consolidated by agreed order of the parties. We affirm the holding of the trial court as to South Central, Kennedy Agriculture & Supply, Inc. and Tommy C. Kennedy, individually; we reverse and remand as to James Overby and J.E. McCarty.
South Central Mississippi Farmers, Inc., (hereinafter South Central) operated a feed mill, feed store and grain elevator in Taylorsville, Mississippi. Each of the appellants, Howard Wilson, Charles Adcox, Fred James, Rudolph Adcox, C. Gary Crumpton, Marthell Arender, and Irvin M. Bradshaw individually delivered soybeans to South Central's grain elevator in the fall of 1981 and early 1982 for storage.
Sometime prior to February 1, 1982, the soybeans delivered for storage were sold by South Central's manager, Jim Overby, without appellants' permission or knowledge and the proceeds used to pay debts of the corporation.
The appellants were not paid for their beans and thereafter initiated this suit for wrongful conversion against South Central; South Central's manager, James Overby; Tom Kennedy, a prospective purchaser of the corporation; Kennedy Agriculture, Brandon, MS, Tom Kennedy's company which had begun operation on South Central's premises on February 1, 1982, during negotiations to purchase; J.E. McCarty, Kennedy's manager and agent operating the business on these premises; Smith County Bank, where South Central maintained its account, and which held a security agreement on South Central's property; and Bunge Corporation, which had purchased beans from South Central in the past and which presently held beans delivered by Kennedy.
Smith County Bank was properly dismissed from the suit as an improper party.
Bunge Corporation, Jackson, MS, interpled the proceeds from the sale of the beans registered in the name of Kennedy and South Central Corporation into court. Bunge therefore is not considered in this suit.
At trial, after the plaintiffs rested the court directed a verdict for J.E. McCarty on the grounds that he had acted clearly as a disclosed agent for both South Central and Kennedy Agriculture.
At the close of all the evidence, the court ruled that the issues of fact did not give rise to a jury question. A verdict was directed in favor of appellants against appellee South Central Farmers and the claims against the other appellees were dismissed.
The appellants allege that the lower court erred in not entering a default judgment against the defendants Kennedy Agriculture and Supply, Inc., Tom C. Kennedy, individually and J.E. McCarty, individually.
Appellants Wilson, Adcox, James and Adcox filed their original complaints on May 4, 1982. Appellees Tom Kennedy, Kennedy Agriculture and Supply and J.E. McCarty filed only motions to dismiss in response. The motions to dismiss the complaints and the amended complaints were timely filed but no action was taken on the motions until the day of trial November 3, 1983. The said appellees filed answers denying the complaints later filed by appellants Crumpton, Arender and Bradshaw.
At a hearing in chambers and prior to trial, the judge considered the motions to dismiss and subsequently allowed said appellees to dictate answers of general denial into the record. The above named appellants sought entry of a default judgment for failure to file an answer, but such judgment was overruled by the court.
Rule 55(a) of the Mississippi Rules of Civil Procedure is dispositive of this issue. It provides:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
The official comments to this rule state:
The words "otherwise defend" refer to the interposition of various challenges to such matters as service, venue, and the sufficiency of the prior pleading, any of which might prevent a default if pursued in the absence of a responsive pleading. The authority in Rule 55(a) for the clerk to enter a default does not require that to escape default the defendant must not only file a sufficient answer to the merits but must also have a lawyer or be present in court when the case is called for trial; thus, a motion challenging the complaint for failure to state a claim upon which relief can be granted is within the notion of "otherwise defend." (Emphasis added).
The appellees in this case did timely file motions to dismiss which were not heard until the day of trial. Such acts were sufficient to support denial of entry of default judgment.
Appellants contend secondly that the lower court erred in granting a directed verdict to Kennedy Agriculture and Supply, Inc., Tom C. Kennedy, individually, James Overby, individually, and J.E. McCarty, individually.
Tommy C. Kennedy had begun negotiations to purchase South Central sometime in 1981. On February 1, 1982, Kennedy, with the knowledge of South Central's board, moved part of his supplies and inventory into the South Central feed store and began operation of a feed, seed and fertilizer business on South Central's premises.
The issue relating to Tom Kennedy individually and Kennedy Agriculture and Supply, Inc. is whether Kennedy controlled and/or...
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