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DAVID L. METTS v. STATE DEPARTMENT OF PUBLIC WELFARE

APRIL 06, 1983

DAVID L. METTS
v.
STATE DEPARTMENT OF PUBLIC WELFARE



BEFORE BROOM, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT:

This appeal challenges an order of filiation and child support secured by the Mississippi Department of Public Welfare and entered on default of the appellant, David L. Metts. Metts appeals from this order of the Chancery Court of the First Judicial District of Hinds County by assigning as error the (1) invalidity of the court order entered prior to a proper return date for process, (2) the denial of his motion to vacate the court order during term time upon showing an adequate defense, (3) the selection of venue in a county other than his

residence, and (4) his denial of a jury trial on the paternity issue.

 The record reveals that Linda Price is the natural mother of Crystal Price, born March 7, 1981. Both are Hinds County residents. On September 9, 1981, Linda Price signed an affidavit with the Hinds County Department of Public Welfare [Department] *fn1 alleging that David L. Metts was the natural father of her minor child born out of wedlock.

 Based upon this affidavit, the Department, through its Hinds County Director, filed a complaint in the Hinds County Chancery Court on December 29, 1981, *fn2 against David L. Metts, a resident of Winston County. The complaint alleged that Metts was the natural father of Crystal Price and sought a court determination of paternity and child support.

 On the same date of the filing of the complaint, the chancellor, in vacation time of the court, signed a fiat directing the issuance of process on Metts for a court hearing on this petition to be held on February 4, 1982, a date during the next upcoming term. The Hinds County Chancery Clerk properly issued process to the Winston County Sheriff to command Metts' appearance before the court at the appointed time and place for a hearing. In turn, process was personally served on Metts on January 9, 1982 by the Sheriff of Winston County.

 On February 4, 1982, upon default of the defendant Metts to appear or plead, the chancery court entered its order of filiation and child support as requested in the complaint. However, the next day, Metts' attorney filed a motion to set aside the previous day's order.

 The hearing on the motion to set aside the order was not heard immediately, but by order entered during the same term of court, the motion was set for hearing on March 10, 1982, being a date during the next regular term. On the date appointed for hearing, Metts filed another motion to set aside the previous order of filiation by alleging the additional grounds of incorrect venue and insufficiency of proof at the former hearing. Metts also filed an answer constituting a general denial of all allegations against him and propounded numerous interrogatories to the complainant.

 Nonetheless, on March 10, 1982, the chancery court heard and dismissed the motions to set aside the February

 4, 1982 order of filiation and support. Thereafter, alleging "supervening" facts, Metts filed another motion for rehearing of the filiation order. This motion alleged newly discovered information concerning the identity of two men with whom Linda Price had had intercourse within ten months prior to the birth of her child. But, this motion was also dismissed.

 On April 8, 1982, Metts filed still another motion to vacate the February 4, 1982 judgment based on a "lack of process" upon him and a denial of a jury trial. This motion too was dismissed. The appeal to this Court was then taken.

 I.

 Addressing the first assigned error, concerning the question of when process should have been returnable, the Court recognizes that a defendant is entitled to a minimum specified time to answer in defense of an action. In a chancery suit of this nature, process must be executed at least five days before the defendant is required to answer. Miss. Code Ann. 9-5-99, 13-3-13 (1972).

 In addition to the five day requirement, sections 13-3-13 and 9-5-99 provide other criteria for determining the earliest date for a return day. Section 13-3-13 provides that a summons may be made returnable, without a court order, to (1) the first day of the next regular term of court or (2) a monthly rules day in vacation. *fn3 As a third alternative, pursuant to section 9-5-99, a chancellor may by fiat set a date in term time or in vacation to which process may be made returnable. *fn4 In the instant case, the chancellor followed the ...


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