110 So. 430 | Miss. | 1926
On the 17th day of March, 1926, during the regular term of the chancery court succeeding said rule day at which the answer was required to be made, a decree pro-confesso against O.L. Nixon was entered, reciting:
"It appearing that the said O.L. Nixon was duly and legally served with process for the time required by law and in the manner provided by law, and that he has failed to appear and make answer to the said garnishment, and that a decree pro confesso should be rendered against him, it is therefore ordered that his indebtedness to W.N. Nixon for the full amount claimed is hereby taken and considered to have been confessed by him."
On this decree pro confesso, final judgment was taken on the 17th day of March, 1926, in which it was adjudged that the Corinth State Bank have judgment against the said O.L. Nixon for the sum of two thousand one hundred one dollars and twenty-five cents, with interest from this date at six per cent., it being recited in this judgment that there was a balance due on the judgment *680 against W.N. Nixon and R.A. Nixon for two thousand one hundred one dollars and twenty-five cents.
After the term of the court adjourned at which these decrees were taken, O.L. Nixon filed an original bill in the chancery court against the Corinth State Bank, reciting the entry of the said decrees and the issuance of the said garnishment writ, and that he made answer to the said writ of garnishment, denying any indebtedness, and mailed the same to W.L. Madden, at Corinth, Miss., with his return card on the envelope, and with sufficient postage to carry the letter, said W.L. Madden being at that time the chancery clerk of Alcorn county, in which the judgment against W.N. and R.A. Nixon was rendered; that at that time the complainant lived at Paden, Tishomingo county, on the Illinois Central Railroad, and that said answer was made on Saturday before the return day of the writ of garnishment.
It is further alleged that the complainant had no knowledge of his answer to said garnishment not having been filed, and that a decree had been entered against him, until the 25th day of March, 1926, on which date he received a letter from the Corinth State Bank notifying him of this fact, and that he then went immediately to W.L. Madden, clerk of the chancery court, to see about the matter, and was then informed by the said Madden that sometimes mail came into his office which he never saw or had any knowledge of.
It is further alleged that at the time of the service of the writ of garnishment upon O.L. Nixon, complainant was not indebted to W.N. Nixon, and did not have under his control or possession any property belonging to him, and did not know of other persons indebted to him. It is further alleged that if this answer had been filed by the clerk in the said cause, there would have been no judgment entered against him. It is further alleged that the said O.L. Nixon has sufficient property to satisfy the said judgment should it be held legal and binding, and *681 the bank would not lose anything by a delay, and the bill prayed that the decree pro confesso and final judgment thereon be set aside by the chancery court, and for general relief.
The bank appeared and answered, and admitted that it obtained the said judgments, the issuance of the writ of garnishment, and that decree pro confesso and final judgment were taken. It admitted that the complainant, O.L. Nixon, resided in Paden, in Tishomingo county, on the Illinois Central Railroad line, but was not advised as to whether or not the complainant, on Saturday before the return day of the writ of garnishment, had prepared an answer in which he set up that he was not indebted, etc., or that he mailed said letter to W.L. Madden, but alleged that if the same be material to the defendant that defendant denies such answer was prepared, and denies that it was signed and sworn to and put in an envelope that had his return address on it, and denies that he placed the required amount of postage thereon and deposited same in the post office addressed to W.L. Madden, at Corinth, Miss., admits that W.L. Madden was clerk of the chancery court, but denies that complainant believed that O.L. Nixon, had a right to believe that the answer was received by said W.L. Madden and filed in due time.
Further answering, the bank denied that the complainant had no knowledge and knew nothing of his answer not having been filed, and denies that he did not know that a decree would be entered against him, but alleges that the complainant must have known, under the circumstances, that a decree would be entered against him at the oncoming term of chancery court, which was the third week in March, 1926, admits writing the letter to Nixon alleged in the bill, denies that the chancery clerk advised the complainant that some mail came to his office of which he did not have knowledge, etc., denies that at the time of the service of the writ of garnishment on the *682 complainant he was indebted to W.N. Nixon, or had any property in his possession, or that he did not know of any other person indebted to the said Nixon, or had any property or effects in his possession or under his control, but avers that the same is immaterial. The answer further denies that the complainant is entitled to any relief.
The complainant testified in support of this bill to making answer, denying the indebtedness and possession of property and knowledge of other persons having such, and that he swore to such answer and mailed it to the said clerk. Complainant testified further that W.N. Nixon had traded the notes to the Corinth State Bank Trust Company, and that he had notified him to hold the notes and they still held them; that it was in 1924 when he bought the land and gave his notes for the land. He further testified that he did not know that the judgment was rendered until after the court had adjourned and he had received notice from the bank, and that he immediately took steps to have the judgment set aside; that he did not owe W.N. Nixon, but owed the Corinth Bank Trust Company; that it was twenty-five miles from Paden to Corinth; that a passenger train runs every morning leaving Paden some time at nine-fifteen o'clock, arriving at Corinth at ten something; that he was in fair health, able to attend to business; that he went to Corinth one or twice a month; and that he never went to the courthouse to inquire about the matter, thinking that it was quashed.
J.L. Holly, of the Corinth Bank Trust Company, testified: That some time in the fall of 1924, Mr. Nixon indorsed some notes and put them up as collateral security against an obligation he owed the bank. That the other security which the Corinth Bank Trust Company had to secure the debt of W.N. Nixon would not pay this debt, but that it would take all the securities the bank had to pay it. These notes of O.L. Nixon, dated September *683 20, 1924, one due in January 1, 1925, one January 1, 1926, one January 1, 1927, are all signed by O.L. Nixon That the land which secured the payment of these O.L. Nixon notes was worth from one thousand to one thousand five hundred dollars.
P.C. Green, a justice of the peace, living at Paden, Miss., testified that he prepared an answer — could not remember exactly when but in October or September; that said answer was prepared on Saturday before the return day of the garnishment following Monday; that the answer was acknowledged before L.R. Moody, mayor of Paden; that he addressed an envelope for Mr. Nixon to W.L. Madden, chancery clerk of Alcorn county, Miss.; that the envelope had the return address of the sender on it; that he turned this letter over to O.L. Nixon, and he went in the direction of the post office, but that he did not see him mail it. Mr. Moody, the mayor of Paden, said that he took the acknowledgment to the answer, but did not read the answer; this occurred on a Saturday evening.
The court below set aside the decree pro confesso, and final judgment from which this appeal is prosecuted. We are of the opinion that the court erred in setting it aside. The power of the court to set aside a decree pro confesso and a final judgment thereon ends with the term of the court at which it is rendered, and the court loses control over it unless the facts in reference thereto make a case coming within the chancery court jurisdiction to set aside a judgment on a ground of fraud, accident, or mistake. In order to maintain an original bill for this purpose on the ground of mistake, the mistake must be a mutual mistake, and the complainant must not be negligent with reference to his default. The bill here does not come within the provisions of law upon this subject. The complainant, when he was garnished, was under duty to see that his answer was filed, and to see that the proper decree was entered discharging him; and if he permitted *684 a decree to be taken against him without complying with these requirements, he is negligent.
The judgment of the court will be reversed and the bill dismissed.
Reversed, and bill dismissed.
