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McClain v. White

April 06, 1999

DONALD C. MCCLAIN APPELLANT
v.
JOHN C. WHITE APPELLEE



The opinion of the court was delivered by: King, J., For The Court

DATE OF JUDGMENT: 11/13/1997

TRIAL JUDGE: HON. WM. BRYAN JONES

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE

TRIAL COURT DISPOSITION: DEFAULT JUDGMENT ENTERED

DISPOSITION: REVERSED AND REMANDED - 4/6/99

EN BANC

¶1. Donald McClain filed a complaint against John White alleging alienation of affection of Mr. McClain's wife. Mr. White filed a counterclaim alleging that Mr. McClain assaulted him during a physical altercation.

¶2. Mr. McClain failed to appear on the day set for trial in this matter and his claim was dismissed. Mr. White's counterclaim was granted and damages were awarded against Mr. McClain in the amount of $71,000. Mr. McClain contends that he did not receive proper notice of the trial setting and therefore, the default judgment should be set aside. On appeal, he assigns the following error:

I. WHETHER THE DEFAULT JUDGMENT ENTERED AGAINST THE PLAINTIFF VIOLATED HIS DUE PROCESS RIGHTS AND SHOULD HAVE BEEN SET ASIDE UNDER M. R.C.P. 60(B) WHERE PLAINTIFF RECEIVED NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE THAT THE MATTER HAD BEEN SET FOR TRIAL.

¶3. Finding reversible error, this Court sets aside the default judgment.

FACTS

¶4. On November 18, 1993, Donald McClain, represented by Attorney J. Russell Reed, filed a complaint against John White alleging alienation of affection of Mr. McClain's wife. Mr. White, represented by Attorney William Parlin, answered the complaint and filed a counterclaim alleging assault and battery. On February 3, 1994, Mr. McClain and Attorney Reed filed an answer to the counterclaim.

ΒΆ5. On April 23, 1996, Mr. White filed a motion for trial setting and served a copy of the motion upon Mr. McClain by certified mail. The motion was sent to Mr. McClain's home ...


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