Setting aside a Mississippi default judgment: six months, and the grounds are not numbered the way you expect

Two things about Mississippi's Rule 60(b) catch out anyone working from the federal rule.

The outer limit is six months, not a year. And the grounds are numbered differently — fraud is (1), not (3). A brief citing "Rule 60(b)(1)" for excusable neglect is citing the fraud ground.

The rule also never uses the phrase excusable neglect at all. What it offers instead is "accident or mistake."

The grounds, in Mississippi's order

Miss. R. Civ. P. 60(b):

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(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 upon 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.

The first three are transposed; the last three are not. Cite the Mississippi number.

"Accident or mistake" is narrower on its face than the federal formula. There is no inadvertence, no surprise, and no excusable neglect. That puts more weight on (6), any other reason justifying relief, which Mississippi does retain and which carries no six-month cap.

Six months

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein.

Six months runs from entry. A defendant who discovers the judgment through a garnishment eight months later has lost (1), (2) and (3) — and is arguing (4) or (6).

The rule also preserves two routes outside itself:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.

Fraud upon the court is separate from ground (1)'s fraud by an adverse party, and carries no six-month limit.

Entry of default is the easier question

Miss. R. Civ. P. 55(c):

Setting Aside Default. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

So establish first whether the clerk merely entered a default under Rule 55(a) or whether a judgment followed. Good cause with no deadline is a far better position than six months and a numbered ground.

No clerk judgment, ever

Miss. R. Civ. P. 55(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 three days' notice. If in order to enable the court to enter judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court's discretion, or order such references as it deems necessary and proper.

Three points worth checking against the file.

"In all cases" the party must apply to the court. Mississippi has no sum-certain clerk route. A judgment entered by the clerk did not follow the rule.

Three days' notice if you had appeared — but read the carve-out: "however, judgment by default may be entered by the court on the day the case is set for trial without such three days' notice." On the trial date, no notice is owed. That is unusual, and it means the absence of a three-day notice is only a defect if judgment was entered on some other day.

Damages needed proof where an account, a damages determination, or the truth of an averment had to be established.

Rule 55(d) adds that a default judgment "is subject to the limitation of Rule 54(c)" — it cannot exceed or differ in kind from what the complaint demanded.

Clerical mistakes, and the appellate cutoff

Rule 60(a) allows correction of clerical mistakes "at any time" — but with a Mississippi-specific cutoff:

up until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court.

The same transmission-of-the-record test governs whether appellate leave is needed for a Rule 60(b) motion.

If you have not been defaulted yet

See responding to a Mississippi complaint for the deadline and what the answer must contain.

How Mississippi compares

A short checklist

1. Find the entry date. Six months, not a year.
2. Cite the Mississippi numbers. Fraud is (1); accident or mistake is (2).
3. Do not look for excusable neglect. The rule says "accident or mistake" — and ground (6) may be the better home for a genuine excuse.
4. Check whether a judgment exists or only an entry of default. Good cause with no deadline is a much better position.
5. Confirm a judge entered it. Mississippi has no clerk judgment route in any case.
6. Check the three days if you had appeared — unless judgment was entered on the trial date, when no notice is required.
7. If six months has passed, work on (4), (5) and (6) — or an independent action, or fraud upon the court.
8. Compare the judgment to the complaint under Rule 54(c).
9. Get a stay separately. The motion does not suspend the judgment.

Where these rules live

• Miss. R. Civ. P. 55 — Default
• Miss. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and what amounts to good cause or accident or mistake is developed in case law this site doesn't cover.