State v. One (1) Chevrolet Nova Auto.State v. One (1) Chevrolet Nova Auto.
On December 16, 1983, an order was entered in the Circuit Court of Copiah County, Mississippi, granting forfeiture of a Chevrolet Nova automobile and $9,800.00 cash money, seized by the Mississippi Bureau of Narcotics (MBN). The order of forfeiture was set aside on April 13, 1988, by the lower court judge. From that adverse ruling, the Mississippi Bureau of Narcotics has appealed to this Court.
DISCUSSION
We address the sole issue of whether the lower court abused its discretion in setting aside the default judgment upon its own initiative five years after the judgment was rendered.
(1) On March 29, 1983, an agent for the MBN observed Houston Collins, Jr., (H. Collins), one of the subjects of this case, operating a 1972, two door, yellow Chevrolet Nova automobile, driving to a residence in Hazlehurst. H. Collins exited the vehicle and entered the residence, exchanging a plastic bag, containing twenty grams of marijuana, for one hundred dollars in cash from an undercover MBN agent.
(2) On March 18, 1983, H. Collins, accompanied by Tony Kemp and followed by another automobile occupied by Jeffrey Curtis and Ray Collins, drove the Nova to a parking lot in Hazlehurst, Mississippi, where the individuals, the Nova automobile and $9,800.00 were involved in a marijuana transaction.
(3) On August 15, 1983, the MBN filed a petition for forfeiture in the Copiah County Circuit Court, for the Nova and the $9,800.00 in cash seized as a result of the drug arrest.
(4) The summons was served on H. Collins, operator and owner of the vehicle, as well as two other individuals, which summons unequivocally stated that an answer was required to be filed within thirty days from the date of service.
(5) On October 13, 1983, fifty eight days after the date of service, the MBN made an application to the court clerk for entry of a default judgment, which was entered by the clerk on that day.
(6) On December 2, 1983, a motion for order granting forfeiture was filed by the MBN and the order was granted and entered on December 16, 1983.
(7) On the day before, December 15, 1983, H. Collins filed his answer to the petition for forfeiture.
(8) On March 3, 1988, the Copiah County Circuit Clerk issued a writ of garnishment to the MBN to satisfy a fine imposed on H. Collins in another case. The MBN denied that it possessed funds belonging to H. Collins. Thereupon, the Copiah County Circuit Clerk issued a show cause order to the MBN to show why the forfeiture order should not be set aside.
(9) On June 8, 1988, a response to the show cause order was filed by the MBN.
(10) On March 2, 1989, arguments were presented in a non-transcribed hearing, and on March 14, 1989, the order was set aside.
The Copiah County Circuit Court set aside the forfeiture order based on the fact that the H. Collins’ conviction on the underlying drug charge had been dismissed by the Mississippi Supreme Court on January 6, 1988, on an entrapment defense in Tony Kemp, Ray S. Collins, Houston Collins and Jeffrey J. Curtis v. State, 518 So.2d 656 (Miss. 1988).
A.
THE COPIAH COUNTY CIRCUIT COURT ERRED WHEN IT SET ASIDE THE ORIGINAL FORFEITURE ORDER BASED ON ITS OWN INITIATIVE.
The Copiah County Circuit Court could not on its own accord vacate the original forfeiture order.
Relief from a default judgment must be requested by a formal application as required by
Rule 60(b) . Because the request is for relief from a final disposition of the case, the party in default must take affirmative action to bring the case before the trial court a second time.
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(b) ;(4) the judgment is void;
(5) the judgment has been satisfied released, or discharged, or a prior judgment which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
B.
THE COPIAH COUNTY CIRCUIT COURT ABUSED ITS DISCRETION WHEN IT VACATED THE ORIGINAL FORFEITURE ORDER.
When ruling on [
Rule 60(b) ] motions a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation. House v. Secretary of Health and Human Services, 688 F.2d 7 (2nd Cir. 1982). Further,Rule 60(b) motions should be denied were they are merely an attempt to relitigate the case. Mastini v. American Telephone and Telegraph Co., 369 F.2d 378 (2nd Cir. 1966) cert. den. 387 U.S. 933, 87 S.Ct. 2055, 18 L.Ed.2d 994.
Stringfellow, 451 So.2d at 221.
Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief. . . . Additionally, it has been said that a party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence; ignorance of the rules; or ignorance of the law is not enough.
King, 556 So.2d at 722 (quoting Stringfellow, 451 So.2d at 221); See Also Accredited Sur. Casualty Co. v. Bolles, 535 So.2d 56, 59 (Miss. 1988).
In the case at bar, extraordinary circumstances have not been shown which would support the lower court‘s examination of the forfeiture order under a
Therefore, the judgment of the lower court is reversed and judgment is rendered here for MBN.
REVERSED AND RENDERED.
HAWKINS, P.J., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON, PITTMAN and BLASS, JJ., concur.
DAN M. LEE, P.J., dissents.