Turner v. Deutsche Bank National Trust Co.
| Docket Number: | 2009-CA-01601-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-14-2011 Opinion Author: Maxwell, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Real property - Service of process - M.R.C.P. 4(c)(4) - Sworn affidavit - M.R.C.P. 60(b)(4) - Default judgment - Void judgment Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Russell, J. Procedural History: Default Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 08-28-2009 Appealed from: WARREN COUNTY CHANCERY COURT Judge: Jane R. Weathersby Disposition: DENIED MOTION TO SET ASIDE DEFAULT JUDGMENT ENTERED IN FAVOR OF DEUTSCHE BANK Case Number: 2008-038gn |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Angela L. Turner |
JOHN RICHARD MAY JR. |
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| Appellee: | Deutsche Bank National Trust Company | CYNTHIA DIANE COHLY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Service of process - M.R.C.P. 4(c)(4) - Sworn affidavit - M.R.C.P. 60(b)(4) - Default judgment - Void judgment |
| Summary of the Facts: | Deutsche Bank National Trust Company initiated a foreclosure action in chancery court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. When Turner failed to respond, Deutsche Bank moved for a default judgment, which the chancellor granted. Several months later, Turner moved to set aside the default judgment because she had not been properly served with process. The chancellor denied Turner’s motion and her subsequent motion to reconsider. Turner appeals. |
| Summary of Opinion Analysis: | Deutsche Bank attempted to serve Turner by publication under M.R.C.P. 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists. But service by this method is only permitted if the defendant be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. If the post office address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit. Deutsche Bank’s attempt to serve Turner fell far short of the required notice. And since Turner did not voluntarily appear to defend against the foreclosure suit, the chancery court did not acquire jurisdiction to enter a judgment against her. M.R.C.P. 60(b)(4) provides that the court may relieve a party from a final judgment where the judgment was void. A court must have proper service of process in order to enter a default judgment against a party. Otherwise, the default judgment is void. Since the default judgment entered against Turner is void, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). |
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