Troy Martin, Annie Mae Southward and Azzie Lee Martin v. Clarence Lowery

Summary

The Mississippi Supreme Court held that the chancery court improperly raised and decided the constitutionality of Miss. Code Ann. § 65-7-201 sua sponte without proper pleading or notice to the Attorney General. The court also held that two defendants were not timely served under Mississippi Rule of Civil Procedure 4(h), and that an alleged oral waiver did not comply with Rule 4(e). The judgment was reversed and remanded for dismissal without prejudice as to those defendants and reconsideration of the subject-matter-jurisdiction motion.

Holdings

1. The constitutional issue was procedurally barred because neither party specifically pleaded it, the chancellor raised it sua sponte, and the Attorney General was not given the required notice and opportunity to respond.
2. The complaint had to be dismissed without prejudice as to Azzie Lee Martin and Annie Mae Southward because neither defendant was served within 120 days under Mississippi Rule of Civil Procedure 4(h), and no valid extension or sufficient good-cause determination supported the delay.
3. Oral agreements or settlement discussions cannot waive service of process under Mississippi Rule of Civil Procedure 4(e); a waiver must be written, dated, signed by the defendant, and sworn to or acknowledged.

Questions Presented

1. Whether the chancery court could consider and declare Mississippi Code section 65-7-201 unconstitutional when neither party pleaded the constitutional issue and the Attorney General was not notified.
2. Whether the chancery court abused its discretion by finding good cause for failure to serve Azzie Lee Martin and Annie Mae Southward within 120 days without making specific findings of fact.
3. Whether oral agreements or settlement discussions could waive the written and sworn requirements for waiver of service under Mississippi Rule of Civil Procedure 4(e).
4. Whether the motion to dismiss for lack of subject matter jurisdiction should be reconsidered on remand.

Disposition

reversed_and_remanded