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DEPOSIT GUARANTY NATIONAL BANK v. JOHN S. ROBERTS

FEBRUARY 12, 1986

DEPOSIT GUARANTY NATIONAL BANK
v.
JOHN S. ROBERTS



BEFORE PATTERSON, SULLIVAN AND ANDERSON

SULLIVAN, JUSTICE, FOR THE COURT:

The Bank appeals these two consolidated cases in an attempt to renew their judgment against John S. Roberts in order that they might execute upon it.

January 12, 1971, the Bank received a judgment for $112,549.57 against Roberts in the Lincoln County Circuit Court.

 January 7, 1978, five days before the 7-year statute of limitations to enforce the judgment was to run, the Bank filed a declaration to renew their judgment. Summons was issued for Roberts, which was personally served and returned to the court on April 13, 1978. Unaware that they had process, the Bank issued alias process and made some four further attempts to have Roberts summoned. These attempts all resulted in a return of" Not Found ".

 Unaware that summons had been served upon Roberts, the Bank's attorney wrote to the Lincoln County Circuit Clerk and requested that his case be continued until process could be had. On September 28, 1979, the last day of the September term of Lincoln County Circuit Court, the suit to renew the judgment was dismissed as a stale case.

 December 7, 1979, the Bank moved to reinstate the case to the docket and at the February, 1980, term the circuit court ordered the cause to be reinstated to the active docket. In the meantime, on August 7, 1978, the Bank had held an execution sale on the lien created by the original judgment. The sale was of an interest in a pipeline owned by Roberts. In March of 1981, the Chancery Court of Jefferson County presiding over the receivership involving the pipeline ruled that the Bank's Lincoln County judgment had not been renewed within the 7-year limitation period, and therefore the execution sale was void.

 The Bank appealed the Jefferson County Chancery Court ruling to this Court, and we held that the Bank's suit to renew the judgment was pending and remanded the Jefferson County case with directions that if the judgment

 was indeed renewed the execution may be issued to enforce the judgment. Deposit Guaranty National Bank v. Biglane, Receiver, Roberts, et al., 427 So.2d 945 (Miss. 1983).

 May 20, 1983, Roberts answered the Lincoln County declaration to renew the judgment and raised as an affirmative defense the statute of limitations. Roberts also moved to set aside the reinstatement of the Bank's action to renew because of the Bank's failure to attach an affidavit to the motion setting forth good reasons for the reinstatement as is required by Uniform Circuit Court Rule 2.02.

 Among other things, the Bank contended, in its response to the motion, that Mississippi Code Annotated 11-53-25 (1972), authorizing the clerk to move to dismiss stale cases, had not been complied with. The Bank further contended that Mississippi Code Annotated 15-1-69 (1972), as applied in Ryan v. Wardlaw, 382 So.2d 1078 (Miss. 1980), saved this case from the 7-year statute of limitations.

 The Circuit Court of Lincoln County held that it did not have personal jurisdiction over Roberts after the adjournment of the term of court during which the cause was dismissed as stale. The statute of limitations was tolled by the filing of the declaration to renew the judgment but when the action was dismissed the statute resumed running and the time expired five days after the conclusion of the September term.

 The trial judge ruled that Ryan, supra, and the one-year saving statute, Mississippi Code Annotated 15-1-69 (1972), did not apply to the dismissal of causes as being stale absent a showing of fraud, mistake or deceit. The trial judge then sustained Robert's motion to set aside the order of reinstatement and sustained his affirmative defense of the 7-year statute of limitations. The Bank's suit was then dismissed with costs to the Bank.

 On November 30, 1983, the Bank appealed the above decision, and on that same day filed another action to renew judgment in the Lincoln County Circuit Court based upon Ryan, supra, and Mississippi Code Annotated 15-1-69. Roberts again answered claiming Circuit Court Rule 2.02 and the affirmative defense of the statute of limitations. Roberts prevailed, and the Bank again appealed. Both cases were consolidated on August 29, 1984.

 I.

 WAS IT ERROR TO SET ASIDE THE ORDER THAT REINSTATED THE SUIT TO RENEW JUDGMENT AFTER IT WAS DISMISSED AS A STALE CASE?

 Mississippi Code Annotated 11-53-25 (1972 provides as follows:

 The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.

 The opinion of the circuit court judge states that no action had been taken in this case for five terms. The Bank does not assign as error the propriety of the dismissal. It does allege, for the first time in its reply brief, that" good cause . . . to the contrary "was shown as indicated by the letter attached to the response to the motion to set aside the reinstatement. This was the August 14, 1978, letter to the circuit clerk requesting that the case be continued until process could be obtained and a judgment entered.

 A point raised for the first time in a reply brief does not have to be considered on appeal. Overstreet v. Allstate Insurance Co., 474 So.2d 572, 577 (Miss. 1985). In any event, by the Bank's own admission, no further action was taken after August ...


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