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INTERNATIONAL PAPER COMPANY v. MITCHELL BASILA

NOVEMBER 14, 1984

INTERNATIONAL PAPER COMPANY
v.
MITCHELL BASILA



BEFORE ROY NOBLE LEE, DAN LEE AND ROBERTSON

DAN LEE, JUSTICE, FOR THE COURT:

On October 30, 1981, appellee, Mitchell Basila filed in Chancery Court of Greene County, a bill of complaint alleging that at sometime during 1977 or 1978 appellant, International Paper Co. entered Basila's ten (10) acre parcel of land in Greene County without permission and cut and removed all merchantable timber. The bill stated that Basila

protested the cutting to officials of International Paper but that these officials would not compensate him for the value of the timber taken. On November 2, 1981, a copy of the complaint was served on C. T. Corp. agent for process for International Paper. International Paper did not file an answer prior to December 9, 1981, and as a result Basila filed a motion for a decree pro confesso. A pro confesso decree was entered on December 9, 1981, and was followed by the entry of a final decree on December 18, 1981.

 International Paper first became aware of the final decree on January 19, 1982. International Paper had responded to Basila's complaint with a motion for an enlargement of time in which to answer; but for uncertain reasons, the motion, certificate of service and proposed order had been mailed to the Chancery Clerk at his home at Rt. ___, New Augusta, Mississippi. A copy was also sent to Hon. A. M. Murphy, Lucedale, Mississippi, Attorney for Basila, but mysteriously were not discovered and filed by the clerk until January 19, 1982, 31 days after the final decree had been entered. The letter was postmarked in Hattiesburg, Mississippi, November 27, 1981. In an attempt to correct this error, on February 22, 1982, International Paper filed the equivalent of a motion to set aside the judgment under the old rules. *fn1 After a hearing on the motion, the chancellor refused to set aside his final decree and decree pro confesso, but did order that the prejudgment interest and attorneys fees awarded in the final decree be expunged. International Paper has appealed the chancellor's refusal to set aside the final decree and decree pro confesso. Basila has cross-appealed the chancellor's expunction of the prejudgment interest and attorneys fees.

 While several points were raised on this appeal the dispositive issue is whether the chancellor abused his discretion when he refused to set aside the final decree and pro confesso decree. We are of the opinion that the chancellor did abuse his discretion for the reasons set forth below.

 Decrees pro confesso and final decrees are not favored by this Court in situations where surprise, accident, mistake or fraud have given rise to the judgment. Kemp v. Atlas Fertilizer & Chemical Co., 199 So.2d 52 (1967); Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430 (1926); Robertson, State Revenue Agent v. Aetna Ins. Co., 134 Miss. 398, 98 So. 833 (1924); Griffith, Chancery Practice 642 (2nd ed. 1950). In Kemp, the Court stated:

 [A] chancellor has the authority to vacate

 and set aside decrees pro confesso and final decrees at any time, whether in term time or vacation, when such decrees have been procured by fraud, surprise, accident or mistake.

 199 So.2d at 58.

 However, decrees pro confesso and final decrees have been upheld by this Court in cases where parties have been guilty of extreme dilatoriness or inexcusable neglect. Owen v. Payne, 301 So.2d 293 (Miss. 1974); Davis v. Polk, 242 Miss. 419, 135 So.2d 175 (1961).

 Ruling on a motion to set aside or vacate a decree pro confesso or final decree is a decision which is best left to the sound discretion of the trial judge. In the exercise of that discretion, the trial judge should consider the following factors: *fn2

 (1) Whether there was a bona fide excuse for the failure to answer timely.

 (2) Whether the party in default has a colorable Defense on the merits, thus indicating that the party is not ...


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