McCain v. Dauzat

40 Citing cases

  1. Wells v. Wells

    394 So. 3d 1011 (Miss. Ct. App. 2024)

    If a process server has properly executed a return, there is a presumption that service of process has occurred; however, "this presumption that service has been effected is rebuttable through the use of extrinsic evidence, including the testimony of the party who is contesting service." Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (citing McCain v. Dauzat, 791 So. 2d 839, 842 (Miss. 2001)). In Collins, the process server swore in his return of service of process and testified in court that he served process on an individual in a pizzeria, who said he was Dr. Toikus Westbrook.

  2. Ace American Insurance Co. v. Huttig Building Prod

    CIVIL ACTION NO. 3:10-CV-527-HTW-LRA, CONSOLIDATED WITH: CIVIL ACTION NO. 3:10-CV-601-HTW-LRA (S.D. Miss. Jul. 25, 2011)

    Default judgments are not favored by Federal law or the law in Mississippi, "and trial courts should not be grudging in granting orders vacating such judgment where showings within the rules have arguably been made." McCain v. Dauzat, 791 So.2d 839, 842 (Miss. 2001); see Lindsay v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). Rule 60(b) should be "liberally applied" and "doubt should be resolved in favor of a judicial decision on the merits of a case".

  3. Smith v. First Bank

    195 So. 3d 790 (Miss. Ct. App. 2015)   Cited 1 times

    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.

  4. Smith v. First Bank

    NO. 2013-CA-00131-COA (Miss. Ct. App. Nov. 4, 2011)

    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.

  5. BB Buggies, Inc. v. Leon

    150 So. 3d 90 (Miss. 2014)   Cited 27 times   1 Legal Analyses
    Finding "the common claim in support of a finding of prejudice, that memories fade and evidence may be lost over time, [was] not applicable"

    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) (citations omitted). 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.

  6. BB Buggies, Inc. v. Leon

    No. 2012-IA-01876-SCT (Miss. Oct. 31, 2012)

    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) (citations omitted). 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.

  7. American States Ins. Co. v. Rogillio

    2008 IA 1049 (Miss. 2009)   Cited 29 times
    Affirming a district court's default judgment after a defendant failed to answer or otherwise defend an action

    This Court has stated that "where there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits." McCain v. Dauzat, 791 So.2d 839, 843 (Miss. 2001) (quoting Sw. Sur. Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143, 146 (1917)). Nevertheless, this Court has also stated that "[w]e will not reverse unless convinced that the Circuit Court has abused its discretion."

  8. Villavaso v. S.H. Anthony Inc.

    309 So. 3d 587 (Miss. Ct. App. 2020)   Cited 7 times
    In Villavaso, 309 So. 3d 587 at 591 (¶¶7-8), the trial court had before it contradictory and competing affidavits and testimony.

    "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) ; see M.R.C.P. 60(b)(4) & advisory committee notes. ¶20. "When service of process is contested, the trial court must make findings to resolve disputed issues of fact."

  9. Tippah County v. Childers

    21 So. 3d 658 (Miss. Ct. App. 2009)   Cited 2 times

    The standard of review for a circuit court's denial of a motion to set aside a default judgment is an abuse of discretion standard. McCain v. Dauzat, 791 So.2d 839, 842 (¶ 15) (Miss. 2001). The circuit court's "discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) of the Mississippi Rules of Civil Procedure as well as the supplementary criteria given validity in the decisions of this Court."

  10. Long v. Vitkauskas

    228 So. 3d 302 (Miss. 2017)   Cited 15 times   1 Legal Analyses
    In Long, service was attempted via certified mail, and the certified mail return receipt was signed by an unidentified "Mary" rather than by the defendant.

    The central concern, though, is that the name "Mary" appeared on the return receipt, instead of the defendant's name. We do not know who "Mary" is. Nevertheless, "we have held that a return of process is presumed to be correct ...." McCain v. Dauzat, 791 So.2d 839, 842 (¶ 8) (Miss. 2001) ; see alsoCollins v. Westbrook, 184 So.3d 922, 929 (¶ 18) (Miss. 2016) ; Wesley Health Sys., LLC v. Estate of Love, 200 So.3d 440, 445 (¶ 21) (Miss. 2016).