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PRYOR SPENCER BAILEY III v. GEORGIA COTTON GOODS COMPANY

MAY 03, 1989

PRYOR SPENCER BAILEY III
v.
GEORGIA COTTON GOODS COMPANY



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND BLASS, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal presents the question whether the trial court abused its discretion when it refused to set aside a judgment entered by default at a time when defendant's answer was only four days overdue. The court below found that the defendant was experienced in lawsuits, knew well what he was required to do when served with process, and had before the same court engaged in a certain amount of "stonewalling" when sued in the past. The Court likewise found that the defendant had no colorable defense to the merits of plaintiff's charge of an unpaid open account. Under the facts and circumstances of this case, we cannot find that the trial court abused its discretion. We affirm.

 Georgia Cotton Goods Company, plaintiff below and appellee here, is an Ohio corporation. Pryor Spencer Bailey III is an adult resident citizen of Oktibbeha County, Mississippi. Bailey was the defendant below and is the appellant here.

 On July 28, 1987, Georgia Cotton commenced this civil action by filing its complaint in the Circuit Court of Oktibbeha County. The Complaint named Bailey as defendant and charged that from and after October 31, 1985, Bailey purchased from Georgia Cotton on open account certain goods, wares and merchandise which Bailey used in a motel business in which he was then engaged. The Complaint charged further that there was a long overdue outstanding balance owing by Bailey to Georgia Cotton in the amount of $3,467.02. Georgia Cotton

 supported its complaint with an affidavit as required by Miss. Code Ann. 13-1-141 (Supp. 1988), to which no exception is offered.

 The Sheriff's return reflects that Bailey was personally served with process on July 31, 1987. Thirty-three days came and passed, the docket reflecting no response from Bailey. Rule 12 (a), Miss. R. Civ. P., required action within thirty days.

 On September 2, 1987 - the thirty-third day, to be exact - Georgia Cotton filed its request for entry of default. On the same day, the clerk entered Bailey's default. Rule 55 (a), Miss. R. Civ. P. The next day Georgia Cotton applied to the Circuit Court for judgment and on that same day, September 3, 1987, the Court entered judgment in favor of Georgia Cotton and against Bailey by default in the principal sum of $3,467.02 plus costs. See Rule 55 (b), Miss. R. Civ. P.

 On September 11, 1987, Bailey filed his motion to vacate and set aside the default judgment. Upon hearing, a week later, Bailey complained that he had had problems in getting a lawyer and then argued that he had a viable defense to Georgia Cotton's suit, to-wit: that Georgia Cotton had not qualified to do business in Mississippi, see Miss. Code Ann. 79-3-247 (1972), and thus had no right to proceed in the courts of this state. Bailey in no way attempted to show that he had any viable defense to the merits of Georgia Cotton's claim that Bailey owed $3,467.02 on open account which was past due and had not been paid.

 After receiving oral arguments from counsel, the Circuit Court denied the motion, stating

 It's the Court's ruling here that there's no evidence been presented whereby the Court should set aside the default judgment. Mr. Bailey has had numerous cases as we all know; he's familiar with the law; he's familiar with cases; he's familiar with what he should do and should not do in cases of this type. Apparently he just decided he'd go off on his trip rather than take care of the case, and now he wants to come and have the case - the default set aside, and the Court has experienced a certain amount of stone walling in other cases by the defendant, and the Court does not feel that the default judgment should be set aside.

 On September 22, 1987, the Circuit Court entered its Order carrying into effect its bench ruling.

 Bailey now prosecutes ...


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