
    William L. SMITH v. Moses EVERETT.
    No. 55302.
    Supreme Court of Mississippi.
    Feb. 5, 1986.
    
      Lindia P. Robinson, Jackson, for appellant.
    James B. Grenfell, Lee & Grenfell, Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

This appeal requires that we vacate the Circuit Court of Hinds County’s affirmance of a default judgment entered in the County Court. We take this action because the County Court failed to respect the requirement of Rule 55(b), Miss.R.Civ.P., that, in cases where judgment by default is sought against a party who has made an appearance in an action, that party is entitled to at least three days prior written notice of the application for default judgment.

On April 20, 1982, Moses Everett commenced this civil action by filing his complaint against William L. Smith. Everett charged negligence on Smith’s part in the operation of his automobile and sought recovery of a monetary judgment for property damages. Everett was the Plaintiff below and is the Appellee here. Smith was the Defendant below and is the Appellant here.

In due course, Smith employed counsel who filed on his behalf an answer and a counterclaim. On October 18, 1982, again acting through counsel, Smith filed an amended answer and counterclaim. ,

Thereafter, on December 16, 1982, Smith’s lawyers filed and served a motion for leave to withdraw as counsel of record for Smith. That motion was granted via an order entered January 10,1983, authorizing counsel’s withdrawal and providing that Smith should

have thirty (30) days from the date of this order within which to retain other counsel to make an appearance in his behalf in this cause.

Nothing in this order suggested in any way that Smith was in jeopardy of default or that his answer and counterclaim were treated as having been withdrawn.

The next entry that appears in the record is a default judgment entered February 17, 1983, by the County Court of the First Judicial District of Hinds County, Mississippi. That judgment recites, inter alia,
That Defendant has not retained additional counsel and filed an answer or other responsive pleadings in this cause and that the Defendant is in default.

Significantly, the record in no way reflects that Smith had been notified that his failure to employ counsel within the thirty day time frame would result in default. Further, Smith’s answer and counterclaim remained on file and, insofar as the record reflects, Smith was not in default. In any evént, the judgment was entered in favor of Everett and against Smith in the amount of $1,850.00 plus interest and costs.

On April 6, 1983, Smith, proceeding through new counsel, filed a motion to set aside entry of default and for an order granting relief from the default judgment. Twelve days later this motion was amended. On April 20, 1983, however, this motion was overruled and denied by the County Court.

Smith perfected his appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, which on November 9, 1983, affirmed the judgment of the County Court. From that decision, Smith has brought the case here.

We emphasize that this is not a case of a defendant who made no appearance in response to effective personal service of process. Smith appeared through counsel and filed an answer and counterclaim. The subsequent withdrawal of Smith’s original counsel in no way impaired the effectiveness of the answer and counterclaim as pleadings negativing any default on Smith’s part. We say this in the context of our opinion in Fairchild v. General Motors Acceptance Corp., 254 Miss. 261, 179 So.2d 185 (1965) where it is stated:

[T]he withdrawal of the attorney’s appearance after the filing of a plea does not withdraw the plea so as to justify a judgment by default;
* sfc * ⅝ ⅜ *
Since appellant’s answer had been duly filed and had not been stricken by an order of the court, and no ground for striking it appearing in the record, judgment by default should not have been entered... (citations omitted)

254 Miss. at 266, 179 So.2d at 187-88.

Only the withdrawal of a party, either pro se or through his attorney, would effect a withdrawal of the pleadings already filed. As explained by the Indiana Court of Appeals in Kelly v. Bank of Reynolds, 171 Ind.App. 515, 358 N.E.2d 146, (1976):

To hold that in all instances the withdrawal of an attorney withdraws all of the pleadings he has filed is to create and invite absurd and burdensome results. For example, attorneys on behalf of parties may have engaged in extensive discovery, or filed various motions pending before the court when an attorney withdraws an appearance. It would be illogical to require a second attorney to duplicate the work of the prior attorney.

358 N.E.2d at 152.

This brings us directly to the requirements of Rule 55(b), Miss.R.Civ.P., which, in pertinent part, provides as follows:

(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against 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 days’ notice....

Smith being a “party ... [who] has appeared in the action”, he was entitled to the notice provided by Rule 55(b).

The Official Comment to Rule 55 provides:

Although an appearance by a defending party does not immunize him from being in default for failure to plead or otherwise defend, it does entitle him to at least three days written notice of the application to the court for the entry of a judgment based on his default.

The Comment also makes clear that “the general policy” of the default judgment, rule is that:

Whenever there is doubt whether a default should be entered, the court ought to allow the case to be tried on the merits.

Here the record supporting Everett’s judgment is deficient in several respects. First, it fails to reflect that there was an application for default. Rule 55 contemplates and requires that a party seeking the default of an adversary must make written application to the court therefor, setting forth the grounds therefor. See First Mississippi National Bank v. KLH Industries, Inc., 457 So.2d 1333, 1335 (Miss.1984). Where this has not been done, the court has no authority to enter the default. Moreover, the record fails to reflect any notice to Smith as mandated by Rule 55(b), be it three days notice, thirty days notice or any other. To be sure, the rule provides that no such notice is required if the case is set for trial on the day the default is entered. Nothing in this record, however, reflects that this case was set for trial on February 17, 1983.

Under these circumstances, the conclusion is inescapable that the County Court erred when, on February 17, 1983, it entered judgment in favor of Everett and against Smith by default. In this context it is clear that the County Court abused its discretion when it overruled and denied Smith’s motion to set aside the default judgment. Similarly, the Circuit Court erred when it affirmed the aforesaid actions of the County Court. The judgment of the Circuit Court is reversed and that court is instructed to remand the case to the docket of the County Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.  