The “Brown Eyeball” Defense
June 2, 2011 2 Comments
NMissCommentor has a new blog post covering some of the Mississippi Supreme Court’s “greatest hits” as he calls them. I couldn’t help but laugh at the language used by the Court in Riley v. State, 107 Miss. 600, 65 So. 882 (1914).
It is not always conducive to domestic peace for a husband to contradict the statements of his wife, and ordinarily the wise husband attempts to soothe and placate his irate spouse, rather than to question her statements, however wide of the truth they may be.
Those are words of wisdom from a smart man. The post got me to thinking about another case from the Court where the dry wit of the Court was exposed. Have you ever heard of the brown eyeball defense? I hadn’t either until a few years ago when my parter sent a copy of Wheat v. Eakin, 491 So.2d 523 (Miss. 1986) over for me to read. The funny part of Wheat isn’t in the opinion, but rather in an exhibit to it.
So what happened in Wheat? Eakin and another filed a complaint seeking damages against Wheat. Wheat filed with the circuit clerk’s office a handwritten document. The Court noted that it was attached as an exhibit and begins “Not only do I deny all of the allegations in the above styled suit… .” The defendants obviously didn’t appreciate the handwritten document, nor did they consider it an answer. The defendants then requested and were granted a default judgment by the clerk which recited, in part, “defendant John R. Wheat having failed to plead or otherwise defend this action…”
The problem with the entry of default is that no notice had been given to Mr. Wheat subsequent to his handwritten letter. M.R.C.P. 55 (b) requires three (3) days notice to the defaulting party if the party has entered an appearance. However, “Under Rule 55 a party who has made no appearance whatsoever by himself or an attorney is not entitled to any notice before entry of default by the clerk, and entry of default judgment by the trial court.” Sartain v. White, 588 So. 2d 204, 208 (Miss. 1991).
Ultimately, the Court found that Wheat’s handwritten letter was sufficient as an entry of appearance and while “less than desirable and more frank than customary, the appellant did state in short and plain terms his general denial of appellees’ claims.” Wheat, at 525.
So what exactly is the brown eyeball defense? I will let you take a look for yourself.