BEFORE WALKER, BOWLING AND PRATHER
PRATHER, JUSTICE, FOR THE COURT:
B & M Building Supply Company, Inc., a Mississippi corporation, sought to enforce a materialman's lien and secure a judicial sale of the real estate to which the lien was attached. The lien was procured by default judgment
in a previous circuit court action filed by B & M Building Supply, a partnership, against Sharon Surrette and her husband, Jerry Surrette. From the Yalobusha County Chancery Court decree ordering a judicial sale of the Surrette's real estate, this appeal by Sharon Surrette was taken.
The appellant alleges that the trial court erred in granting a decree to a corporate entity enforcing the materialman's lien of a partnership. We concur and reverse the trial court's order.
On June 2, 1982, B & M Building Supply, a partnership, filed a circuit court suit against Jerry and Sharon Surrette on an open account resulting from purchases made by Jerry Surrette of building supplies. Various Purchases were made from July 20, 1981, through October 1, 1981, totaling $6,905.27. This action sought judgment for this amount, plus interest and attorney's fees. Summons was served on Sharon Surrette on June 7, 1982 and on Jerry Surrette on July 27, 1982. Default judgment was entered against Sharon Surrette on August 6, 1982 and against Jerry Surrette on September 7, 1982 in the amount of $8,905.27. In addition to the default judgment on each, the decree awarded to the plaintiff a materialman's lien upon the property owned by the defendants and upon which the building supplies were used.
On September 20, 1982, B & M Building Supply Company, Inc., a Mississippi corporation, filed a lawsuit against Sharon Surrette declaring that none of the judgment had been paid. The suit asked for a judicial sale of the defendant's property. On October 27, 1982, the chancellor ordered a judicial sale, and appeal is taken by Sharon Surrette.
As a threshold question to this appeal is the appellee's contention that a judgment taken pursuant to a default cannot he appealed by the defaulting party. The basis of this claim is that nothing was heard or addressed before the lower court and cannot be raised for the first time on appeal. This contention is answered in Simpson v. Smith Sons' Gin & Machine Co., 75 Miss. 505, 22 So. 805 (1897), where this Court held:
Notwithstanding the decree pro confesso, the final decree, and the failure of the appellant to appear in the court below, if on the whole case as presented here it
appears that the appellee was not entitled to relief, the decree must be set aside. (75 Miss. at 508, 22 So. at 806).
See e.g., Kennedy v. East Union Lumber & Mfg. Co., 92 Miss. 405, 46 So. 625 (1908). The question of the insufficiency of factual allegations to constitute a cause of action is not waived by default of a party defendant. 4 C.J.S. Appeal and Error 155 (1957) at pages 523-524.
We, therefore, conclude that the appellant here does have standing to appeal the trial court's order, and if on the merits of the appeal, can sustain her position, she may have relief in this Court even though ...