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MONROE POINTER, INDIVIDUALLY, AND POINTER INSURANCE AGENCY, INC. v. J. D. HUFFMAN D/B/A LAKESIDE MARKET

MAY 20, 1987

MONROE POINTER, INDIVIDUALLY, AND POINTER INSURANCE AGENCY, INC.
v.
J. D. HUFFMAN D/B/A LAKESIDE MARKET



BEFORE HAWKINS, P.J., PRATHER AND ANDERSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

A default judgment on the liability issue was entered in the Circuit Court of Panola County against Monroe Pointer, individually, and Pointer Insurance Co., Inc. in favor of J. D. Huffman, plaintiff. From an order overruling Pointer's motion to quash process, to set aside default judgment and to allow defendants an opportunity for trial on the merits, Pointer appeals assigning as error:

(1) The trial court erred in excluding evidence relative to service of process and in holding that the service of process was valid.

 (2) The trial court erred in entering a default judgment as to liability only.

 (3) Due to the improper entry of a default judgment, the trial court applied the wrong standard of review.

 (4) The trial court abused its discretion in denying the motion to set aside the default and default judgments.

 I.

 FACTS

 On December 28, 1984, J. D. Huffman d/b/a Lakeside Market (Huffman) filed suit against Monroe Pointer, individually, and Pointer Insurance Agency, Inc. (Pointer) alleging gross negligence, breach of fiduciary duty, and breach of contract.

 Huffman alleged that Pointer sold him insurance represented as a" commercial package, "but which contained no workers' compensation insurance. Huffman alleged that he relied in good faith on Pointer's representation that he was covered for all business purposes and, in reliance on Pointer's representation, opened Lakeside Market where an accident occurred in May of 1984, severely injuring the hand of a Lakeside Market employee. Huffman further alleged that as a result of Pointer's conduct, Huffman incurred substantial damages and was exposed to substantial claims by others.

 Because Pointer failed to plead or otherwise defend, a default judgment was entered February 8, 1985 on the issue of liability. Subsequently, a hearing to assess damages was set for March 29, 1985.

 Prior to the hearing to assess damages, Pointer filed his" Motion To Quash Process; To Set Aside Default Judgment And To Allow Defendants An Opportunity For Trial On The Merits. "After a hearing on defendants' motion, the court entered an order overruling the motion May 3, 1985. Following that order, this appeal was perfected.

 II.

 Did the trial court err in excluding evidence relative to service of process and in holding that the service of process was valid?

 " Before a default judgment can be entered, the court must have jurisdiction over the party against whom the judgment is sought, which also means that he must have been effectively served with process. "Comment, MRCP 55. See also, Wright, Miller and Kane, Federal Practice and Procedure. Civil 2d 2682, p. 407 (1983).

 During the time period surrounding the summonses and returns at issue, Rule 4 of the Mississippi Rules of Civil Procedure provided that process be issued and served in the form and manner prescribed by statute. *fn1 The relevant statute, Miss. Code Ann. 19-25-37 (1972) provides in part:

 Every sheriff, by himself or his deputy, shall from time to time execute all notices, writs, and other process, both from courts of law and chancery, and all orders and decrees to him legally issued and directed within his county, and he shall make due returns thereof to the proper court.

 The returns involved in this case bear the rubber stamp of the sheriff, and signatures of both Deputy Sheriff J. C. Sexton and Constable Cleave Gale. During the hearing on Pointer's motion, Pointer attempted to show that process was not served by the sheriff or deputy sheriff as required by Miss. Code Ann. 19-25-37 (1972), but instead was ineffectively served by Cleave Gale, a constable. The trial court, however, excluded any testimony directed toward the identity of the person who actually served the summonses.

 In sustaining the objection to Pointer's attempt to prove who actually served the summonses, the trial judge commented," I've never allowed testimony to go beyond the return or beyond a notary's signature or acknowledgment. "

 Many jurisdictions take the view that an officer's return of service of summons is conclusive and cannot be set aside on extrinsic evidence unless its falsity is disclosed by some other portion of the record of the case. 62 Am.Jur.2d Process 177, p. 957 (1972).

 Miss. Code Ann. 13-3-87 (1972) provides," The return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties, but the officer himself shall not be permitted to question its truth. "Applying identical language in Willenbrock v. Brown, 239

 So. 2d 922, 925 (Miss. 1970), this Court held," The officer's return of process is presumed to be correct but Section 1880, Mississippi Code 1942 Annotated (1956), provides that the return of an officer serving any process may be shown to be untrue by either of the parties. "See also, Reichman-Crosby Co. v. Horton, 143 Miss. 141, 108 So. 443 (1926).

 Would the service of process by a constable be ineffective under Miss. Code Ann. 19-25-37 (1972)?

 As previously mentioned, 19-25-37 requires process be served by a sheriff" or his deputy. "Pointer readily admits, and there is no question, he was personally served with process. Pointer's argument is that the service of process was ineffective because it was served by Cleave Gale, a constable, and not a sheriff or deputy sheriff. By offer of proof, Monroe Pointer was allowed to testify that process was served upon him by Cleave Gale.

 Miss. Code Ann. 95-25-19 (1972) provides in part:

 Appointment, oath and compensation ...


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