IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 97-CA-00291-COA

GLENN FOLSE APPELLANT

v.

PAULA N. STENNET-YANCEY APPELLEE

DATE OF JUDGMENT: 01/29/97

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: ROBERT WHITE

ATTORNEY FOR APPELLEE: PAULA N. STENNETT-YANCEY

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: JUDGMENT OVERRULING MOTION TO VACATE

DEFAULT JUDGMENT.

DISPOSITION: REVERSED AND REMANDED - 05/04/1999

MOTION FOR REHEARING FILED: 5/18/99

CERTIORARI FILED: August 31,

1999

MANDATE ISSUED:

EN BANC.

KING, P.J., FOR THE COURT:

¶1. The appellee, Paula Yancey, was granted a default judgment on a writ of garnishment in the County

Court of Lauderdale County against the appellant, Glenn Folse. This default was predicated upon the failure

of Folse to appear and claim exemptions. Feeling that the default judgment was granted in error, Folse has

appealed and assigned the following as error:

I. Whether a default judgment may be taken against an out-of-state defendant without notice

where a suggestion of an exemption has been made.

II. Whether a default judgment may be taken against a defendant without the three day notice

contemplated by M.R.C.P. 55(b) where the plaintiff is aware of defendant's intent to defend the
lawsuit.

Because this Court finds merit in Folse's second issue, it reverses and remands this case.

Facts

¶2. Paula Yancey sued Glenn Folse in the Lauderdale County Court for unpaid legal fees incurred during

the handling of his divorce. On October 23, 1995, Yancey was awarded a $8,054.91 default judgment

against Folse.

¶3. On November 9, 1995 Yancey caused a writ of garnishment to be issued to Stevens & Ward, P.A.

("Stevens") of Jackson from the Lauderdale County Court. Stevens owed Folse $7,303.33 in legal fees

earned in a matter in which he had acted as co-counsel.

¶4. On November 30, 1995, in response to the writ of garnishment, Stevens interpled the $7,303.33 into

the Hinds County Chancery Court, First Judicial District.

¶5. On December 4, 1996, Stevens answered the writ of garnishment in Lauderdale County. In its answer,

Stevens stated that Folse's last known address was "1001 Edenbourne Street, Pineville, Louisiana 71360."

Stevens further stated that it owed a $7,303.33 debt to Folse but had no knowledge whether those funds

were exempt from garnishment.

¶6. On January 5, 1996, the Lauderdale County Court Clerk sent notice to Folse of his right to claim an

exemption to the garnishment. This notice was sent to the address provided by Stevens in its answer. That

notice was returned marked "return to sender" on January 16, 1996. No other attempt was made to

provide written notice to Folse.

¶7. On January 11, 1996, Folse answered Steven's complaint of interpleader and filed a declaration of

exempt property in Hinds County. In his declaration, Folse claimed the $7,303.33 qualified as cash on hand

and was exempt from garnishment pursuant to Miss. Code Ann. § 85-3-1 (Rev. 1991). Yancey was

served with Folse's answer and declaration of exemption on January 11th and 24th, 1996.

¶8. On January 30, 1996, a hearing on the interpleader was held before the Hinds County Chancery Court.

On Yancey's motion, the chancellor dismissed the interpleader action with prejudice for lack of subject

matter jurisdiction and transferred the $7,303.33 to the Lauderdale County Court. Both parties approved

the order which transferred the $7,303.33 to Lauderdale County and dismissed the interpleader with

prejudice.

¶9. According to Yancey's brief, upon dismissal of the interpleader, she requested Folse's attorney "to file

something" in Lauderdale County to support his position that the $7,303.33 was exempt.

¶10. According to Folse's brief, he understood that after the dismissal of the Hinds County interpleader that

the entire action, not just the $7,303.33, had been transferred to Lauderdale County.

¶11. On February 7, 1996, Yancey applied for and was granted a default judgment in the Lauderdale

County Court. On March 9, 1996, the $7,303.33 was paid over to Yancey.

¶12. On April 24, 1996, Folse moved to vacate the default judgment. As grounds for this motion, Folse

alleged that he never received the 30 day notice required by Miss. Code Ann. §11-35-33 (1972) nor was
he provided the three days written notice of entry of default mandated by M.R.C.P. 55(b) . The Lauderdale

County Court denied Folse's motion for failure to make an appearance. The Lauderdale County Court also

noted that the interpleader action in which Folse had appeared was dismissed with prejudice. The

Lauderdale County Circuit Court affirmed the county court.

DISCUSSION

I. WHETHER A DEFAULT JUDGMENT MAY BE TAKEN AGAINST AN OUT-OF-STATE

DEFENDANT WITHOUT NOTICE WHERE A SUGGESTION OF AN EXEMPTION HAS

BEEN MADE.

¶13. Folse argues that the default judgment entered against him is void for lack of service of process. Folse

advises that the Lauderdale County Court Clerk mailed a defective notice of right to claim exemptions

pursuant to Miss. Code Ann. § 85-3-1 (Rev. 1991).(1) Folse claims that this notice was never received by

him and was returned to the Lauderdale County Court marked "return to sender." Folse contends that no

further attempt was made to serve him with the notice of the garnishment proceeding.

¶14. Mississippi Code Annotated § 11-35-33 (1972) reads as follows:

Any garnishee who answers admitting an indebtedness, or the possession of property due or

belonging to the defendant, may show by his answer that he is advised and believes that the defendant

does or will claim the debt or property, or some part thereof, as exempt from garnishment, levy, or

sale. Upon the filing of such answer, the clerk or justice of the peace shall issue a summons or make

publication, if the defendant be shown by oath to be absent from the state, for the defendant,

notifying him of the garnishment and the garnishment and the answer, and requiring him to assert his

right to the exemption. . . .If the defendant fail to appear, judgment by default may be taken

against him, adjudging that he is not entitled to the property or debt as exempt; but if he

appear, the court shall, on his motion, cause an issue to be made up and tried between him and

the plaintiff. (emphasis added).

In the case at bar, Stevens was served with a writ of garnishment by Yancey to collect on a default

judgment against Folse. Stevens, the garnishee, answered the writ of garnishment as follows:

1. The law firm of Stevens & Ward, P.A., has a debt to the Defendant, Glenn Folse, in the amount of

$7,303.33.

. . .

4. The law firm of Stevens & Ward, P.A., has no knowledge of the location of any effects of the

Defendant, Glenn Folse, in their possession. However, the Defendant's last know address was 1001

Edenbourne Street, Pineville, Louisiana 71360. (emphasis added).

. . .

8. The law firm of Stevens & Ward, P.A., has no information indicating whether the funds

described above are exempt from execution pursuant to Miss. Code Anno. [sic] § 85-3-1, et. seq.

(1972) [sic].
¶15. As set out supra, Miss. Code Ann. § 11-35-33 directs the garnishee to show in his answer "that the

defendant does or will claim an exemption. . . ." Stevens's answer to the garnishment cannot be said to

show its belief that Folse would claim a possible exemption to garnishment. In fact, its answer merely stated

that Stevens had no knowledge of the availability of any exemptions to Folse. Nonetheless, it appears that,

out of an abundance of caution, the clerk attempted to provide Folse with notice of the garnishment at the

address provided by the garnishee. The notice was returned to the clerk marked "return to sender."

¶16. Ironically, this is the same address where Folse received notice of Stevens's interpleader action. As a

result of the receipt of that notice, Folse filed an answer and made a formal appearance in the action.

¶17. The Lauderdale County Court Clerk made a good faith effort to provide Folse with notice of his right

to claim an exemption to the garnishment even though the suggestion of an exemption was not made by the

garnishee. After the notice was returned as undeliverable, the clerk did not attempt to notify Folse of the

proceedings by other means. However, Folse did, in fact, receive notice of the interpleader action.

¶18. This Court finds nothing in the record which demonstrates that Folse was prejudiced by the failure to

receive notice of his right to claim exemptions. In fact, Folse in his answer to the Hinds County interpleader,

attempted to exercise the very right of which the notice was intended to apprize him.

II. WHETHER A DEFAULT JUDGMENT MAY BE TAKEN AGAINST A DEFENDANT

WITHOUT THE THREE DAY NOTICE CONTEMPLATED BY M.R.C.P. 55(B) WHERE THE

PLAINTIFF IS AWARE OF DEFENDANT'S INTENT TO DEFEND THE LAWSUIT.

¶19. Because he did not receive three days written notice of the application for default as provided by

Mississippi Rule of Civil Procedure 55(b), Folse argues that the trial judge abused his discretion in refusing

to vacate the default judgment. Folse suggests that communications between his attorney and Yancey were

sufficient to satisfy the appearance requirements of Rule 55(b). He further argues that having made an

appearance, Yancey was obligated to provide him with written notice prior to the hearing. We agree.

¶20. Trial courts have considerable discretion in the determination to vacate a default judgment. Bailey v.

Georgia Cotton Goods Co., 543 So. 2d 180, 182 (Miss. 1989). "To be sure, default judgments are not

favored and trial courts should not be grudging in the granting of orders vacating such judgments where

showings within the rules have arguably been made." Guaranty Nat'l Ins. Co. v. Pittman, 501 So. 2d

377, 387-388 (Miss. 1982). Because of its disfavored status, even slight abuse of discretion in refusing to

set aside a default judgment may warrant reversal. Chassanoil v. Kilmichael, 626 So. 2d 127, 135 (Miss.

1993).

¶21. M.R.C.P. 55(b)(2) provides that upon application of default, a three day written notice must be

afforded to the nonmovant provided that he has made an appearance and the default does not occur on the

day of trial.

¶22. Appearance, for Rule 55(b) purposes, has been broadly defined to encompass more than traditional

court appearances or the filing of documents. Today, the question, "Did the party make an appearance?",

must be answered in terms of whether the nonmovant has manifested a clear intent to defend the suit.

Dynasteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977, 982 (Miss. 1992). If this question is

answered affirmatively, the appearance commanded by Rule 55(b) is satisfied and the nonmovant is entitled

to the three day written notice.
¶23. Folse did not make a "traditional" appearance in this case. However, Yancey was fully aware of his

intent to claim the exemption. Yancey communicated directly with Folse's attorney prior to requesting the

default judgment and was aware that Folse was (1) represented by counsel and (2) intended to claim the

$7,303.33 as exempt pursuant to Miss. Code Ann. § 85-3-1 (Rev. 1991).

¶24. On January 11, 1996, Folse's attorney had sent Yancey the following correspondence:

Re: Stevens & Ward, P.A. v. Paula Stennett-Yancey and Glenn Folse

Dear Ms. Stennett-Yancey:

I have been retained by Mrs. Dera Folse, mother and next friend of Glenn Folse, to represent his

interest in the above-referenced matter. Enclosed is a copy of the Answer to the Complaint for

Interpleader and Declaration of Exempt Property which I am filing today in the Chancery Court of the

First Judicial District of Hinds County, Mississippi.

It is my understanding that you have filed responsive pleadings in the Chancery Court case. I would

appreciate your serving me with a copy of the pleadings you have already filed plus any further

pleadings you file in this matter.

On January 24, 1996, Yancey was again served with Folse's answer and declaration of exempt

property, which in pertinent part states:

[T]he funds interpled into this Court by Stevens & Ward, P.A.,. . .are hereby declared and chosen by

[Folse] to be part of the property exempt from seizure under execution or attachment pursuant to

Miss. Code Ann. Section 85-3-1(a)(iv) "cash on hand".

¶25. On January 30, 1996, a hearing on the interpleader was held before the Hinds County Chancery

Court. The chancellor dismissed the interpleader action with prejudice for lack of subject matter jurisdiction,

but transferred the $7,303.33 to the Lauderdale County Court.(3)

¶26. On February 7, 1996, Yancey filed an "Affidavit For Default" predicated upon the failure of Folse to

declare exemptions or otherwise plead.

¶27. On February 7, 1996, the Lauderdale County Court Clerk "as provided in the Mississippi Rules of

Civil Procedure" entered a default against Folse.

¶28. On February 7, 1996, Yancey filed a "Motion For Default Judgment" against Folse. The motion was

based upon the failure of Folse to "answer or appear to claim his exemptions."

¶29. On February 7, 1996, the County Court of Lauderdale County entered a "Judgment of Default"

against Folse. This judgment was predicated upon the failure of Folse "to answer or appear to claim his

exemptions."

¶30. Yancey, having communicated with Folse's attorney, had actual knowledge of Folse's intent to claim

the exemption. Included among the communications between Yancey and Folse's attorney was the answer

and declaration of exempt property filed in the Hinds County interpleader. While these documents were

filed in the Hinds County action, this Court notes that Yancey was twice provided these documents.
¶31. Having been made aware of this information, Yancey was obligated to inform the trial court in the

affidavit which accompanied her application for default judgment of contact with Folse's attorney, and

provide notice of her application to Folse, pursuant to Rule 55(b).

¶32. Mississippi Rule of Civil Procedure 60(b) provides that a court may relieve a party from a judgment

for the following reasons: (1) fraud, misrepresentation, or other misconduct by the adverse party; (2)

accident or mistake; (3) newly discovered evidence; (4) the judgment is void; (5) the judgment has been

satisfied or release; or, (6) for any other reason justifying relief.

¶33. Because Folse made an appearance, the failure to provide him with notice of Yancey's application for

default entitles him to relief from the judgment pursuant to M.R.C.P. 60(b)(1). This Court holds that the trial

judge abused his discretion by refusing to vacate the default judgment.

¶34. With appropriate regard for the dissent, it appears to have misunderstood and missed the mark in

suggesting that Folse was not a necessary party to the garnishment.

¶35. The default was requested and granted based upon the failure of Folse to "answer or appear and claim

his exemptions," exemptions which he had claimed in the interpleader action filed in Hinds County Chancery

Court, and which he had informed Yancey he would continue to claim. He was, therefore, a necessary

party and entitled to notice.

¶36. This matter is reversed and remanded to the trial court to conduct a hearing on the merits of Folse's

claim of exemption.

¶37. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS REVERSED

AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

BRIDGES, COLEMAN, DIAZ, JJ., CONCUR. McMILLIN, C.J., DISSENTS WITH

SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., AND THOMAS, J.

IRVING, LEE AND PAYNE, JJ., NOT PARTICIPATING.

McMILLIN, C.J., DISSENTING:

¶38. I respectfully dissent. In my opinion, the majority incorrectly applies the Mississippi Rules of Civil

Procedure to a judicial proceeding the conduct of which is not subject to those procedural rules. The action

before the Court is an appeal from a garnishment proceeding, which is an ancillary post-judgment action

intended to aid a judgment creditor in the satisfaction of his judgment. The exclusion of a garnishment

proceeding from the dictates of the Mississippi Rules of Civil Procedure is unequivocal.

Process to enforce a judgment for the payment of money shall be by such procedures as are provided

by statute. The procedure on execution, in proceedings supplementary to and in aid of

judgment, and in proceedings on and in aid of execution, shall be as provided by statute.

M.R.C.P. 69(a) (emphasis supplied); See also First Mississippi Nat'l Bank v. KLH Industries, Inc., 457

So. 2d 1333, 1337 (Miss. 1984).

¶39. A garnishment proceeding, one of several means of execution in aid of judgment, is permitted under

procedures set out in Sections 11-35-1 through 11-35-61 of the Mississippi Code of 1972. The statutory
procedures for a garnishment make clear that the judgment debtor is not a necessary party to a garnishment

proceeding unless the garnishee affirmatively suggests in his answer that the debtor may claim some

exemption as to the particular asset being subjected to garnishment. Miss. Code Ann. § 11-35-33 (1972);

Howell v. Moss Point Furniture, 136 Miss. 399, 101 So. 559, 560 (1924). There is no dispute in this

case that the garnishee failed to suggest in its answer any possibility that the judgment debtor would claim

the garnished funds as exempt.

¶40. The extra-legal actions of the court clerk in attempting to notify the judgment debtor of the garnishment

action, while perhaps commendable, were not required under the law and could not possibly give rise to a

greater right in the judgment debtor than would have existed if the clerk had not made any effort to notify

the judgment debtor of the pending garnishment.

¶41. Though the judgment debtor was not a necessary party to the garnishment action, it may well be that

he was a proper party who could have sought to intervene and assert a claim of exemption even in the

absence of the statutorily-required preliminary suggestion by the garnishee. However, a non-party with a

possible right to intervene who does not actually attempt to formally exercise that right of intervention is not,

by any legal definition, a party to the proceeding and, thus, is not entitled to any notice regarding hearings or

other proceedings in the case.

¶42. A judgment directing a garnishee to pay the garnished fund to the judgment creditor is not, as the

majority suggests, a default judgment against the judgment debtor governed by Mississippi Rule of Civil

Procedure 55. An order entered resolving a garnishment proceeding is directed at the garnishee and not the

judgment debtor. Even were we to try to draw some parallel between a statutory garnishment proceeding

and the Mississippi Rule of Civil Procedure, such cases as Dynasteel Corp. v. Aztec Industries, 611 So.

2d 977 (Miss. 1992), cited by the majority, would offer no support for the proposition that a non-party

judgment debtor would ever be entitled to notice of a hearing. The Dynasteel case discusses whether a

defendant has made "an appearance" in the case even though he may not have filed an answer. That

concept of "appearance" as discussed in that case has nothing to do with the question of whether or not the

defendant had been made a party to the case. The defendant in Dynasteel was necessarily a party to the

proceeding by being properly served with process at the inception of the suit. As I have already observed,

absent a suggestion of exemption by the garnishee, the judgment debtor is not a party to the garnishment

action and, therefore, could not be entitled to any procedural protection in the conduct of the proceeding.

¶43. A judgment debtor who finds himself deprived of a potential claim of exemption by a lackadaisical

garnishee who fails to suggest that the judgment debtor might claim some available exemption is not without

remedy. The case of City of Laurel v. Turner makes clear that, in such a case, the failure of the garnishee

to make such a suggestion in his answer when there was some reasonable basis to think the debtor intended

to make such a claim may expose the garnishee to a direct claim by the judgment creditor. City of Laurel

v. Turner, 80 Miss. 530, 31 So. 965, 965 (1902).

¶44. In this case, however, we are faced with the facts that (a) the garnishee's answer did not trigger the

provisions of Section 11-35-33 that would have made the judgment debtor a necessary party to this

proceeding, and (b) the judgment debtor made no affirmative step to intervene as a proper party. That

being the case, the judgment debtor was entitled to no advance notice of any hearings or other proceedings

related to resolving the writ of garnishment.

¶45. I would affirm.
SOUTHWICK, P.J., AND THOMAS, J., JOIN THIS SEPARATE WRITTEN OPINION.

1. Folse contends that the notice was defective because it was sent by regular mail instead of certified

mail as directed by M.R.C.P. 4 for out-of-state service.

2. M.R.C.P. 55(b) reads in pertinent part as follows:

Judgment. . . .If the party whom judgment by default is sought has appeared in the action, he (or if

appearing by representative, his representative) shall be served with written notice of the application

for judgment at least three days prior to the hearing of such application; however, judgment by default

may be entered by the court on the day the case is set for trial without such three days' notice.

3. While the chancellor dismissed the interpleader for lack of subject matter jurisdiction, the

appropriate remedy would have been the transfer of the entire interpleader, rather than just the $7,

303.33, to the Lauderdale County Court. Benedict v. City of Hattiesburg, 693 So. 2d 377, 381

(Miss. 1997). Such a transfer would have of necessity included the declaration of exempt property

filed by Folse.