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Smith v. First Bank

Court of Appeals of Mississippi

April 28, 2015

MITCHELL P. SMITH AND HORACE HOYT SMITH APPELLANTS
v.
FIRST BANK, CHRISTOPHER A. FERRELL, CYNTHIA FERRELL, JAMES FERRELL AND CHRISTOPHER B. FERRELL, A MINOR, AND CHRISTINA FERRELL, A MINOR BY AND THROUGH THEIR MOTHER AND NEXT FRIEND, CYNTHIA FERRELL APPELLEES

DATE OF JUDGMENT: 11/04/2011

LINCOLN COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR. TRIAL JUDGE.

ATTORNEYS FOR APPELLANTS: W. BRADY KELLEMS JOSEPH PRESTON DURR CHELI KELLEMS DURR.

ATTORNEYS FOR APPELLEES: DENNIS L. HORN JARROD WATKINS TAYLOR SHIRLEY PAYNE JOHN DENVER FIKE.

BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

GRIFFIS, P.J.

¶1. This Court considers a challenge to the circuit court's decision to uphold a default judgment and related orders. We find no error and affirm.

FACTS

¶2. In 2004, Christopher and Cynthia Ferrell bought a home in Lincoln County. They moved in the home with their children: James, Christina, Christopher B. ("Bubba"), and Marna.

¶3. On April 29, 2006, several of the Ferrells were injured when a fight started on neighboring property owned by Mitchell P. Smith.

¶4. On April 26, 2007, the Ferrells filed a complaint for damages against Mitchell, Horace Hoyt Smith (Mitchell's father), and several others. The Ferrells personally served process on Horace on April 27, 2007. Mitchell could not be located, and he was dismissed from this action. However, Horace did not respond, and a default was entered against him on September 6, 2007.

¶5. On January 22, 2009, the Ferrells filed another complaint based on the same facts. This time, the Ferrells served Mitchell with process through his nineteen-year-old son, Brandon. Thereafter, the Ferrells filed a motion to consolidate the two actions. The circuit court granted the motion on October 21, 2010.

¶6. On May 9, 2011, this case went to trial. Neither Mitchell nor Horace appeared to defend himself. The circuit court entered a default judgment against Mitchell and Horace, in the sum of $917, 000.

¶7. On June 1, 2012, First Bank received a writ of garnishment on Mitchell's account. Thereafter, the bank mistakenly told Mitchell that he could withdraw all of his money from his account. Mitchell acted on this information and withdrew all of his money from First Bank.

¶8. On August 23, 2012, Mitchell and Horace filed their motions to set aside the judgment. The circuit court found "that both Mitchell and [Horace] have colorable defenses, and that had they defended these claims at trial, as it was their right to do, the outcome might have been substantially different." However, after weighing the relevant factors, the circuit court ruled that the default judgment against Mitchell and Horace should stand. Their motion was denied. In addition, Mitchell was ordered to return the funds that he withdrew from First Bank. It is from this judgment that Mitchell and Horace now appeal.

ANALYSIS

¶9. On de novo review, this Court must first determine whether the judgment is void because of insufficient service of process. Fletcher v. Limeco Corp., 996 So.2d 773, 776 (¶8) (Miss. 2008). "A court must have jurisdiction, proper service of process, in order to enter a default judgment against a party. Otherwise, the default judgment is void. If a default judgment is void, the trial court has no discretion and must set the judgment aside." McCain v. Dauzat, 791 So.2d 839, 842 (¶7) (Miss. 2001) (internal citations omitted). ¶10. Once the procedural issues are satisfied, we apply an abuse-of-discretion standard of review to the circuit court's decision on a motion to set aside a default judgment. Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (ΒΆ8) (Miss. 2009). "[W]here there is a reasonable ...


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