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WILLIAM L. SMITH v. MOSES EVERETT

FEBRUARY 05, 1986

WILLIAM L. SMITH
v.
MOSES EVERETT



BEFORE WALKER, P.J.; HAWKINS AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This appeal requires that we vacate the Circuit Court of Hinds County's affirmance of a default judgment entered in the County Court. We take this action because the County Court failed to respect the requirement of Rule 55 (b), Miss.R.Civ.P., that, in cases where judgment by default is sought against a party who has made an appearance in an

action, that party is entitled to at least three days prior written notice of the application for default judgment.

 On April 20, 1982, Moses Everett commenced this civil action by filing his complaint against William L. Smith. Everett charged negligence on Smith's part in the operation of his automobile and sought recovery of a monetary judgment for property damages. Everett was the Plaintiff below and is the Appellee here. Smith was the Defendant below and is the Appellant here.

 In due course, Smith employed counsel who filed on his behalf an answer and a counterclaim. On October 18, 1982, again acting through counsel, Smith filed an amended answer and counterclaim.

 Thereafter, on December 16, 1982, Smith's lawyers filed and served a motion for leave to withdraw as counsel of record for Smith. That motion was granted via an order entered January 10, 1983, authorizing counsel's withdrawal and providing that Smith should

 have thirty (30) days from the date of this order within which to retain other counsel to make an appearance in his behalf in this cause.

 Nothing in this order suggested in any way that Smith was in jeopardy of default or that his answer and counterclaim were treated as having been withdrawn.

 The next entry that appears in the record is a default judgment entered February 17, 1983, by the County Court of the First Judicial District of Hinds County, Mississippi. That judgment recites, inter alia,

 That Defendant has not retained additional counsel and filed an answer or other responsive pleadings in this cause and that the Defendant is in default.

 Significantly, the record in no way reflects that Smith had been notified that his failure to employ counsel within the thirty day time frame would result in default. Further, Smith's answer and counterclaim remained on file and, insofar as the record reflects, Smith was not in default. In any event, the judgment was entered in favor of Everett and against Smith in the amount of $1,850.00 plus interest and costs.

 On April 6, 1983, Smith, proceeding through new counsel, filed a motion to set aside entry of default and for an order granting relief from the default judgment. Twelve days later this motion was amended. On April 20, 1983, however, this motion was overruled and denied by the County Court.

 Smith perfected his appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, which on November 9, 1983, affirmed the judgment of the County Court. From that decision, Smith has brought the case here.

 We emphasize that this is not a case of a defendant who made no appearance in response to effective personal service of process. Smith appeared through counsel and filed an answer and counterclaim. The subsequent withdrawal of Smith's original counsel in no way impaired the effectiveness of the answer and counterclaim as pleadings negativing any default on Smith's part. We say this in the context of our opinion ...


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