MS Rules of Civil Procedure

MISSISSIPPI RULES OF CIVIL
PROCEDURE
1. Scope of Rules.
2. One Form of Action.
3. Commencement of Action.
4. Summons.
5. Service of Filing of Pleadings and Other Papers.
6. Time.
7. Pleadings Allowed; Form of Motions.
8. General Rules of Pleading.
9. Pleading Special Matters.
10. Form of Pleadings.
11. Signing of Pleadings and Motions.
12. Defenses and Objections-- When and How Presented-- By Pleading or Motion-Motion For Judgment On the Pleadings.
13. Counter-Claim and Cross-Claim.
14. Third-Party Practice.
15. Amended and Supplemental Pleadings.
16. Pre-trial Procedure.
16A. Motions for Recusal of Judges.
17. Parties Plaintiff and Defendant; Capacity.
18. Joinder of Claims and Remedies.
19. Joinder of Persons Needed for Just Adjudication.
20. Permissive Joinder of Parties.
21. Misjoinder and Nonjoinder of Parties.
22. Interpleader.
23. [Class Actions] [Omitted].
23.1 [Derivative Actions By Shareholders] [Omitted].
23.2 [Actions Related to Unincorporated Associations] [Omitted].
24. Intervention.
25. Substitution of Parties.
26. General Provisions Governing Discovery.
27. Depositions Before Actions or Pending Appeal.
28. Persons Before Whom Depositions May Be Taken.
29. Stipulations Regarding Discovery Procedure.
30. Depositions Upon Oral Examination.
31. Depositions Upon Written Questions.
32. Use of Depositions In Court Proceedings.
33. Interrogatories to Parties.
34. Production of Documents and Things and Entry Upon Land For Inspection and
Other Purposes.
35. Physical and Mental Examinations of Persons.
36. Requests for Admission.
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37. Failure to Make Or Cooperate in Discovery: Sanctions.
38. Jury Trial of Right.
39. [Trial By Jury Or By The Court] [Omitted].
40. Assignment of Cases for Trial.
41. Dismissal of Actions.
42. Consolidation: Separate Trials.
43. Taking of Testimony.
44. Proof Of Documents.
44.1 [Determination of Foreign Law] [Omitted].
45. Subpoena.
46. Exceptions Unnecessary.
47. Jurors.
48. Juries and Jury Verdicts.
49. General Verdicts and Special Verdicts.
50. Motions For Directed Verdict and For Judgment Notwithstanding the Verdict.
51. Instructions to Jury.
52. Findings By The Court.
53. Masters, Referees and Commissioners.
54. Judgments; Costs.
55. Default.
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56. Summary Judgment.
57. Declaratory Judgments.
58. Entry of Judgment.
59. New Trials; Amendment of Judgments.
60. Relief From Judgment or Order.
61. Harmless Error.
62. Stay of Proceedings To Enforce A Judgment.
63. Disability of A Judge.
64. Seizure of Person or Property.
65. Injunctions.
65.1 Security: Proceedings Against Sureties.
66. Receivers.
67. Deposit in Court.
68. Offer of Judgment.
69. Execution.
70. Judgment For Specific Acts; Vesting Title.
71. Process In Behalf Of and Against Persons Not Parties. 71A. [Eminent Domain] [Reserved]. 72 TO 76. [Omitted]. 77. Courts and Clerks.
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78. Motion Practice.
79. Books and Records Kept By The Clerk and Entries Therein.
80. [Stenographic Report or Transcript As Evidence] [Omitted].
81. Applicability of Rules.
82. Jurisdiction and Venue.
83. Local Court Rules.
84. Forms.
85. Title. Appendix A. Forms. Form 1A. Summons. Form 1AA. Summons. Form 1B. Notice And Acknowledgment For Service By Mail. Form 1C. Summons By Publication. Form 1D. Rule 81 Summons. Form 1DD. Rule 81 Summons. Form 1E. Waiver of Process. Form 2. Complaint on a Promissory Note. Form 3. Complaint on Covenant or Agreement. Form 4. Complaint For Specific Performance. Form 5. Complaint on Open Account. 5
Form 6. Complaint on Account Stated. Form 7. Complaint for Goods Sold and Delivered. Form 8. Complaint for Work and Labor Done. Form 9. Complaint for Money Lent. Form 10. Complaint for Money Paid by Mistake. Form 11. Complaint for Money Had and Received. Form 12. Complaint for Money Paid by Plaintiff for Defendant. Form 13. Complaint on Policy of Life Insurance. Form 14. Complaint On Policy of Fire Insurance. Form 15. Complaint for Negligence or Wantonness. Form 16. Complaint for Assault and Battery. Form 17. Complaint for False Imprisonment. Form 18. Complaint for Malicious Prosecution. Form 19. Complaint for Fraud. Form 20. Complaint on a Warranty. Form 21. Complaint for Conversion. Form 22. Motion to Dismiss Pursuant to Rule 12(b). Form 23. Answer Presenting Defenses Under Rule 12(b). Form 24. Motion to Bring In Third-Party Defendant. Form 25. Third-Party Complaint. 6
Form 26. Motion To Intervene as a Defendant Under Rule 24. Form 27. Motion to Drop Defendant or for Severance of Claims. Form 28. Motion by Defendant for Severance of Claims of Several Plaintiffs. Form 29. Motion by Plaintiff to Add Defendant. Form 30. Motion by Defendant to Bring in Additional Defendant. Form 31. Motion by Defendant to Add Additional Plaintiff. Form 32. Answer to Complaint Set Forth in Form 11 with Counter-Claim for
Interpleader. Form 33. Plaintiff’s Motion for Substitution- Deceased Party Defendant. Form 34. Pre-trial Order. Form 35. Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for
New Trial. Form 36. Application to Clerk for Entry of Default and Supporting Affidavit. Form 37. Docket of Entry of Default.
Form 38. Default Judgment Entered by Court. Appendix B. Statutes Affected. Appendix C. Time Table for Proceedings. MISSISSIPPI RULES OF CIVIL
PROCEDURE
Adopted Effective January 1, 1982
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ORDER ADOPTING THE MISSISSIPPI RULES OF
CIVIL PROCEDURE
SUPREME COURT OF MISSISSIPPI
Pursuant to the inherent authority vested in this Court by the Constitution of the State
of Mississippi, as discussed in Cecil Newell, Jr. v. State of Mississippi, 308 So.2d 71
(Miss.1975), to promote justice, uniformity, and the efficiency of courts, the rules attached
hereto are adopted and promulgated as Rules of Practice and Procedure in all Chancery,
Circuit, and County Courts of this State in all civil actions filed on and after January 1, 1982,
any and all statutes and court rules previously adopted to the contrary notwithstanding, and
in the event of a conflict between these rules and any statute or court rule previously
adopted these rules shall control.
The Clerk of this Court is authorized and directed to spread this order and the rules
attached hereto at large on the minutes of the Court, and the Clerk is further authorized and
directed to forward a certified copy thereof to West Publishing Company for publication in
a forthcoming edition of Southern Reporter, Mississippi Cases, the official publication of
decisions of this Court.
ORDERED, this the 26th day of May, 1981.
FOR THE COURT
Neville Patterson, Chief Justice
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CHAPTER I. SCOPE OF RULES - ONE FORM OF ACTION
RULE 1. SCOPE OF RULES
These rules govern procedure in the circuit courts, chancery courts, and county courts
in all suits of a civil nature, whether cognizable as cases at law or in equity, subject to certain
limitations enumerated in Rule 81; however, even those enumerated proceedings are still
subject to these rules where no statute applicable to the proceedings provides otherwise or
sets forth procedures inconsistent with these rules. These rules shall be construed to secure
the just, speedy, and inexpensive determination of every action.
Comment
The purpose of Rule 1 is to state the scope and applicability of the Mississippi Rules
of Civil Procedure and the basic philosophical principle for their judicial construction.
Rule 1 must be considered together with Rule 81 to determine the applicability of the
Mississippi Rules of Civil Procedure to civil practice in Mississippi. Generally, all civil
actions in the circuit, chancery, and county courts are subject to the application of the rules;
exceptions are listed in Rule 81. The excepted civil actions are governed by procedures
stated in the statutes pertaining to those actions.
It is intended that these rules be applied as liberally to civil actions as is judicially
feasible, whether in actions at law or in equity. However, nothing in the rules should be
interpreted as abridging or modifying the traditional separations of jurisdiction between the
law courts and equity courts in Mississippi.
The rules apply irrespective of the nature of the parties to the action, including the
state of Mississippi or any political subdivision thereof. It is established law in Mississippi
that where a statute permits the state or a subdivision thereof to be brought into court as a
litigant, it is subject to the same procedural rules as is any other party. Humphreys County
v. Cashin, 128 Miss. 236, 90 So. 888 (1922), Bolivar County v. Bank of Cleveland, 170 Miss.
555, 561, 155 So. 176, 177 (1934) (Ethridge, J., dissenting).
The salient provision of Rule 1 is the statement that "These rules shall be construed
to secure the just, speedy, and inexpensive determination of every action." There probably
is no provision in these rules more important than this mandate: It reflects the spirit in which
the rules were conceived and written and in which they should be interpreted. The primary
purpose of procedural rules should be to promote the ends of justice; these rules reflect the
view that this goal can be best accomplished by the establishment of a single form of action,
known as a "civil action," thereby uniting the procedures in law and equity through a
simplified procedure that minimizes technicalities and places considerable discretion in the
trial judge for construing the rules in a manner that will secure their objectives.
Properly utilized, the rules will tend to discourage battles over mere form and to
sweep away needless procedural controversies that either delay a trial on the merits or deny
a party his day in court because of technical deficiencies. The mandate in the final sentence
of Rule 1 is only one of a number of similar admonitions scattered throughout the rules
directing that the rules be interpreted liberally in order that the procedural framework in
which litigation is conducted promotes the ends of justice and facilitates decisions on the
merits, rather than determinations on technicalities. See, e. g., Miss. Code Ann. § 11-5-13
(1972) (statute setting forth requirements of bill of complaint). Perhaps the most important
of these statements is the provision of Rule 61 which directs that "the court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties."
The keystone to the effective functioning of the Mississippi Rules of Civil Procedure
is, obviously, the discretion of the trial court. The rules grant considerable power to the
judge and only provide general guidelines as to the manner in which it should be exercised.
Accordingly, judges must view the rules with a firm understanding of the philosophy of the
rules and must exercise a wise and sound discretion to effectuate the objective of the
simplified procedure. The rules will remain a workable system only so long as trial judges
exercise their discretion intelligently on a case-by-case basis; application of arbitrary rules
of law to particular situations will have a debilitating effect on the overall system.
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RULE 2. ONE FORM OF ACTION
There shall be one form of action to be known as "civil action."
Comment
The purpose of Rule 2 is to eliminate the term "cause of action" from the lexicon of
Mississippi civil practice. By substituting for "cause of action" the phrases "claim" or "claim
for relief," these rules will give the courts of Mississippi the freedom and authority to deal
pragmatically with any aggregate of operative facts which give rise to a right enforceable in
the courts, consistent with the jurisdiction of the courts.
The prescription in Rule 2 that there shall be one form of action may be the most
fundamental rule of all. A number of important consequences follow from Rule 2: Forms
of action are abolished; most distinctions between chancery procedure and law procedure are
eliminated; the significance of the term "cause of action," which formerly was a matter of
serious dispute, has been eliminated. These rules will provide a procedural framework for
all litigation in the trial courts of Mississippi. Except in certain limited instances enumerated
in Rule 81, the civil action prescribed by these rules is the proper medium for exercising any
civil power the chancery, circuit, or county courts in Mississippi may possess.
Rule 2 does not affect the various remedies that previously have been available in the
courts of Mississippi. The abolition of the forms of action furnishes a single, uniform
procedure by which a litigant may present his claim in an orderly manner to a court
empowered to give him whatever relief is appropriate and just; the substantive and remedial
principles that applied prior to the advent of these rules are not changed. What was an action
at law before these rules is still an action founded on legal principles and what was a bill in
equity before these rules is still a civil action founded on principles of equity.
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CHAPTER II. COMMENCEMENT OF ACTION:
SERVICE OF PROCESS, PLEADINGS,
MOTIONS, AND ORDERS
RULE 3. COMMENCEMENT OF ACTION
(a) Filing of Complaint. A civil action is commenced by filing a complaint with the
court. A costs deposit shall be made with the filing of the complaint, such deposit to be in
the amount required by the applicable Uniform Rule governing the court in which the
complaint is filed.
The amount of the required costs deposit shall become effective immediately upon
promulgation of the applicable Uniform Court Rule and its approval by the Mississippi
Supreme Court.
(b) Motion for Security for Costs. The plaintiff may be required on motion of the
clerk or any party to the action to give security within sixty days after an order of the court
for all costs accrued or to accrue in the action. The person making such motion shall state
by affidavit that the plaintiff is a nonresident of the state and has not, as affiant believes,
sufficient property in this state out of which costs can be made if adjudged against him; or
if the plaintiff be a resident of the state, that he has good reason to believe and does believe,
that such plaintiff cannot be made to pay the costs of the action if adjudged against him.
When the affidavit is made by a defendant it shall state that affiant has, as he believes, a
meritorious defense and that the affidavit is not made for delay; when the affidavit is made
by one not a party defendant it shall state that it is not made at the instance of a party
defendant. If the security be not given, the suit shall be dismissed and execution issued for
the costs that have accrued; however, the court may, for good cause shown, extend the time
for giving such security.
(c) Proceeding In Forma Pauperis. If a pauper's affidavit is filed in the action the
costs deposit and security for costs may be waived. The court may, however, on the motion
of any party, on the motion of the clerk of the court, or on its own initiative, examine the
affiant as to the facts and circumstances of his pauperism.
(d) Accounting for Costs. Within sixty days of the conclusion of an action, whether
by dismissal or by final judgment, the clerk shall prepare an itemized statement of costs
incurred in the action and shall submit the statement to the parties or, if represented, to their
attorneys. If a refund of costs deposit is due, the clerk shall include payment with the
statement; if additional costs are due, a bill for same shall accompany the statement.
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[Amended effective September 1, 1987; amended effective June 24, 1992.]
Advisory Committee Historical Note
Effective June 24, 1992, Rule 3(a) was amended to provide that before they are
effective, the amounts of required costs deposits must be promulgated by Uniform Court
Rule and approved by the Mississippi Supreme Court. 598-602 So. 2d XXI (West Miss. Cas.
1992).
Effective September 1, 1987, Rule 3(e) was amended by providing that the amount
required as a deposit for filing suit shall be the amount required by the Uniform Rule
governing the court in which the action is filed. 508-511 So. 2d XXV (West Miss. Cas.
1988).
Comment
The purpose of Rule 3(a) is to establish a precise date for fixing the commencement
of a civil action. The first step in a civil action is the filing of the complaint with the clerk
or judge. Accord Bacon v. Gardner, 23 Miss. 60 (1851); see Miss. Code Ann. § 11-7-33
(1972). Service of process upon the defendant is not essential to commencement of the
action.
Ascertaining the precise date of commencement is important in determining whether
an action has been brought prematurely, see Euclid-Mississippi v. Western Cas. & Sur. Co.,
249 Miss. 547, 163 So.2d 676 (1964); whether it is barred by a statute of limitations, see
Maddux v. Jones, 51 Miss. 631 (1875); and which of two or more courts in which actions
involving the same parties and issues have been instituted should retain the case for
disposition, absent special consideration; see Euclid-Mississippi v. Western Cas. & Sur. Co.,
supra. See also, Bacon v. Gardner, supra (statute of limitations not tolled when plaintiff
filed complaint but requested that process not be issued); accord, Erving's Hatcheries, Inc.
v. Garrott, 250 Miss. 701, 168 So.2d 52 (1964).
The provisions in Rule 3 pertaining to costs are intended to make uniform the
assessing, accounting for, and refunding of costs. It is intended that there be no local
variations from the costs deposit provision of Rule 3 (a); Rule 3 (b) provides ample latitude
for requiring additional costs, and accords with prior Mississippi practice. See Miss. Code
Ann. § 11-53-5 (1972).
Rule 3 (c) accords with Miss. Code Ann. § 11-53-17 (1972) in allowing indigents to
sue without depositing security for costs; however, the indigent affiant may be examined as
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to his financial condition and the court may, if the allegation of indigence is false, dismiss
the action. Accord, Miss. Code Ann. § 11-53-19 (1972).
Rule 3 (d) requires that clerks promptly account for costs in all actions. It is intended
that this provision will make uniform the procedure for refunding costs. Costs are an expense
of individual parties -- not their attorneys. Accordingly, unused costs deposits are to be
promptly returned to the parties on a case-by-case basis. Accord, Miss. Code Ann. § 11-53-9
(1972).
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RULE 4. SUMMONS
(a) Summons: Issuance. Upon filing of the complaint, the clerk shall forthwith issue
a summons.
(1) At the written election of the plaintiff or the plaintiff's attorney, the clerk shall:
(A) Deliver the summons to the plaintiff or plaintiff's attorney for service under
subparagraphs (c)(1) or (c)(3) or (c)(4) or (c)(5) of this rule.
(B) Deliver the summons to the sheriff of the county in which the defendant
resides or is found for service under subparagraph (c)(2) of this rule.
(C) Make service by publication under subparagraph (c)(4) of this rule.
(2) The person to whom the summons is delivered shall be responsible for prompt
service of the summons and a copy of the complaint. Upon request of the plaintiff, separate
or additional summons shall issue against any defendants.
(b) Same: Form. The summons shall be dated and signed by the clerk, be under the
seal of the court, contain the name of the court and the names of the parties, be directed to
the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the
plaintiff's address, and the time within which these rules require the defendant to appear and
defend, and shall notify him that in case of his failure to do so judgment by default will be
rendered against him for the relief demanded in the complaint. Where there are multiple
plaintiffs or multiple defendants, or both, the summons, except where service is made by
publication, may contain, in lieu of the names of all parties, the name of the first party on
each side and the name and address of the party to be served. Summons served by process
server shall substantially conform to Form 1A. Summons served by sheriff shall substantially
conform to Form 1AA.
(c) Service:
(1) By Process Server. A summons and complaint shall, except as provided in
subparagraphs (2) and (4) of this subdivision, be served by any person who is not a party and
is not less than 18 years of age. When a summons and complaint are served by process
server, an amount not exceeding that statutorily allowed to the sheriff for service of process
may be taxed as recoverable costs in the action.
(2) By Sheriff. A summons and complaint shall, at the written request of a party
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seeking service or such party's attorney, be served by the sheriff of the county in which the
defendant resides or is found, in any manner prescribed by subdivision (d) of this rule. The
sheriff shall mark on all summons the date of the receipt by him, and within thirty days of the
date of such receipt of the summons the sheriff shall return the same to the clerk of the court
from which it was issued.
(3) By Mail.
(A) A summons and complaint may be served upon a defendant of any class
referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy
of the summons and of the complaint (by first-class mail, postage prepaid) to the
person to be served, together with two copies of a notice and acknowledgment
conforming substantially to Form 1-B and a return envelope, postage prepaid,
addressed to the sender.
(B) If no acknowledgment of service under this subdivision of this rule is
received by the sender within 20 days after the date of mailing, service of such
summons and complaint may be made in any other manner permitted by this rule.
(C) Unless good cause is shown for not doing so, the court shall order the
payment of the costs of personal service by the person served if such person does
not complete and return within 20 days after mailing the notice and
acknowledgment of receipt of summons.
(D) The notice and acknowledgment of receipt of summons and complaint shall
be executed under oath or affirmation.
(4) By Publication.
(A) If the defendant in any proceeding in a chancery court, or in any proceeding
in any other court where process by publication is authorized by statute, be shown
by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident
of this state or not to be found therein on diligent inquiry and the post office
address of such defendant be stated in the complaint, petition, or affidavit, or if
it be stated in such sworn complaint or petition that the post office address of the
defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the
affidavit be made by another for the plaintiff or petitioner, that such post office
address is unknown to the affiant after diligent inquiry and he believes it is
unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or
petitioner, the clerk, upon filing the complaint or petition, account or other
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commencement of a proceeding, shall promptly prepare and publish a summons
to the defendant to appear and defend the suit. The summons shall be
substantially in the form set forth in Form 1-C.
(B) The publication of said summons shall be made once in each week during
three successive weeks in a public newspaper of the county in which the
complaint or petition, account, cause or other proceeding is pending if there be
such a newspaper, and where there is no newspaper in the county the notice shall
be posted at the courthouse door of the county and published as above provided
in a public newspaper in an adjoining county or at the seat of government of the
state. Upon completion of publication, proof of the prescribed publication shall
be filed in the papers in the cause. The defendant shall have thirty (30) days from
the date of first publication in which to appear and defend. Where the post office
address of a defendant is given, the street address, if any, shall also be stated
unless the complaint, petition, or affidavit above mentioned, avers that after
diligent search and inquiry said street address cannot be ascertained.
(C) It shall be the duty of the clerk to hand the summons to the plaintiff or
petitioner to be published, or, at his request, and at his expense, to hand it to the
publisher of the proper newspaper for publication. Where the post office address
of the absent defendant is stated, it shall be the duty of the clerk to send by mail
(first class mail, postage prepaid) to the address of the defendant, at his post
office, a copy of the summons and complaint and to note the fact of issuing the
same and mailing the copy, on the general docket, and this shall be the evidence
of the summons having been mailed to the defendant.
(D) When unknown heirs are made parties defendant in any proceeding in the
chancery court, upon affidavit that the names of such heirs are unknown, the
plaintiff may have publication of summons for them and such proceedings shall
be thereupon in all respects as are authorized in the case of a nonresident
defendant. When the parties in interest are unknown, and affidavit of that fact be
filed, they may be made parties by publication to them as unknown parties in
interest.
(E) Where summons by publication is upon any unmarried infant, mentally
incompetent person, or other person who by reason of advanced age, physical
incapacity or mental weakness is incapable of managing his own estate, summons
shall also be had upon such other person as shall be required to receive a copy of
the summons under paragraph (2) of subdivision (d) of this rule.
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(5) Service by Certified Mail on Person Outside State. In addition to service by any
other method provided by this rule, a summons may be served on a person outside this state
by sending a copy of the summons and of the complaint to the person to be served by
certified mail, return receipt requested. Where the defendant is a natural person, the
envelope containing the summons and complaint shall be marked "restricted delivery."
Service by this method shall be deemed complete as of the date of delivery as evidenced by
the return receipt or by the returned envelope marked "Refused."
(d) Summons and Complaint: Person to Be Served. The summons and complaint
shall be served together. Service by sheriff or process server shall be made as follows:
(1) Upon an individual other than an unmarried infant or a mentally incompetent
person,
(A) by delivering a copy of the summons and of the complaint to him personally
or to an agent authorized by appointment or by law to receive service of process;
or
(B) if service under subparagraph (1)(A) of this subdivision cannot be made with
reasonable diligence, by leaving a copy of the summons and complaint at the
defendant's usual place of abode with the defendant's spouse or some other
person of the defendant's family above the age of sixteen years who is willing to
receive service, and by thereafter mailing a copy of the summons and complaint
(by first class mail, postage prepaid) to the person to be served at the place where
a copy of the summons and of the complaint were left. Service of a summons in
this manner is deemed complete on the 10th day after such mailing.
(2) (A) upon
an unmarried infant by delivering a copy of the summons and
complaint to any one of the following: the infant's mother, father, legal guardian
(of either the person or the estate), or the person having care of such infant or
with whom he lives, and if the infant be 12 years of age or older, by delivering
a copy of the summons and complaint to both the infant and the appropriate
person as designated above.
(B) upon a mentally incompetent person who is not judicially confined to an
institution for the mentally ill or mentally deficient or upon any other person who
by reason of advanced age, physical incapacity or mental weakness is incapable
of managing his own estate by delivering a copy of the summons and complaint
to such person and by delivering copies to his guardian (of either the person or
the estate) or conservator (of either the person or the estate) but if such person has
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no guardian or conservator, then by delivering copies to him and copies to a
person with whom he lives or to a person who cares for him.
(C) upon a mentally incompetent person who is judicially confined in an
institution for the mentally ill or mentally retarded by delivering a copy of the
summons and complaint to the incompetent person and by delivering copies to
said incompetent's guardian (of either the person or the estate) if any he has. If
the superintendent of said institution or similar official or person shall certify by
certificate endorsed on or attached to the summons that said incompetent is
mentally incapable of responding to process, service of summons and complaint
on such incompetent shall not be required. Where said confined incompetent has
neither guardian nor conservator, the court shall appoint a guardian ad litem for
said incompetent to whom copies shall be delivered.
(D) where service of a summons is required under (A), (B) and (C) of this
subparagraph to be made upon a person other than the infant, incompetent, or
incapable defendant and such person is a plaintiff in the action or has an interest
therein adverse to that of said defendant, then such person shall be deemed not
to exist for the purpose of service and the requirement of service in (A), (B) and
(C) of this subparagraph shall not be met by service upon such person.
(E) if none of the persons required to be served in (A) and (B) above exist other
than the infant, incompetent or incapable defendant, then the court shall appoint
a guardian ad litem for an infant defendant under the age of 12 years and may
appoint a guardian ad litem for such other defendant to whom a copy of the
summons and complaint shall be delivered. Delivery of a copy of the summons
and complaint to such guardian ad litem shall not dispense with delivery of copies
to the infant, incompetent or incapable defendant where specifically required in
(A), and (B) of this subparagraph.
(3) Upon an individual confined to a penal institution of this state or of a subdivision
of this state by delivering a copy of the summons and complaint to the individual, except that
when the individual to be served is an unmarried infant or mentally incompetent person the
provisions of subparagraph (d)(2) of this rule shall be followed.
(4) Upon a domestic or foreign corporation or upon a partnership or other
unincorporated association which is subject to suit under a common name, by delivering a
copy of the summons and of the complaint to an officer, a managing or general agent, or to
any other agent authorized by appointment or by law to receive service of process.
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(5) Upon the State of Mississippi or any one of its departments, officers or
institutions, by delivering a copy of the summons and complaint to the Attorney General of
the State of Mississippi.
(6) Upon a county by delivering a copy of the summons and complaint to the
president or clerk of the board of supervisors.
(7) Upon a municipal corporation by delivering a copy of the summons and complaint
to the mayor or municipal clerk of said municipal corporation.
(8) Upon any governmental entity not mentioned above, by delivering a copy of the
summons and complaint to the person, officer, group or body responsible for the
administration of that entity or by serving the appropriate legal officer, if any, representing
the entity. Service upon any person who is a member of the "group" or "body" responsible
for the administration of the entity shall be sufficient.
(e) Waiver. Any party defendant who is not an unmarried minor or mentally
incompetent may, without filing any pleading therein, waive the service of process or enter
his or her appearance, either or both, in any action, with the same effect as if he or she had
been duly served with process, in the manner required by law on the day of the date thereof.
Such waiver of service or entry of appearance shall be in writing dated and signed by the
defendant and duly sworn to or acknowledged by him or her, or his or her signature thereto
be proven by two (2) subscribing witnesses before some officer authorized to administer
oaths. Any guardian or conservator may likewise waive process on himself and/or his ward,
and any executor, administrator, or trustee may likewise waive process on himself in his
fiduciary capacity. However, such written waiver of service or entry of appearance must be
executed after the day on which the action was commenced and be filed among the papers
in the cause and noted on the general docket.
(f) Return. The person serving the process shall make proof of service thereof to the
court promptly. If service is made by a person other than a sheriff, such person shall make
affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made
by the sender's filing with the court the acknowledgment received pursuant to such
subdivision. If service is made under paragraph (c)(5) of this rule, the return shall be made
by the sender's filing with the court the return receipt or the returned envelope marked
"Refused." Failure to make proof of service does not affect the validity of the service.
(g) Amendment. At any time in its discretion and upon such terms as it deems just,
the court may allow any process or proof of service thereof to be amended, unless it clearly
appears that material prejudice would result to the substantial rights of the party against
12
whom the process is issued.
(h) Summons: Time Limit for Service. If a service of the summons and complaint
is not made upon a defendant within 120 days after the filing of the complaint and the party
on whose behalf such service was required cannot show good cause why such service was
not made within that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or upon motion.
[Amended effective May 1, 1982; March 1, 1985; February 1, 1990; July 1, 1998; January
3, 2002.]
Advisory Committee Historical Note
Effective January 3, 2002, Rule 4(e) was amended to delete a prohibition against
waiver of service of process by one convicted of a felony. 802-804 So.2d XVII (West Miss.
Cases 2002).
Effective July 1, 1998, Rule 4(f) was amended to state that the person serving process
shall promptly make proof of service thereof to the court.
Effective February 1, 1990, Rule 4(c)(4)(B) was amended by striking the word
“calendar” following the word and figure “thirty (30)”; Rule 4(c)(4) was amended by adding
subsection (E); Rule 4(c)(5) was amended by changing the title to reflect service by certified
mail; Rule 4(d)(2)(A) was amended by substituting the word “person” for “individual” in
reference to the one having care of the infant. 553-556 So. 2d XXXIII (West Miss. Cas.
1990).
Effective March 1, 1985, a new Rule 4 was adopted. 459-462 So. 2d XVIII (West
Miss. Cas. 1985).
Effective May 1, 1982, Rule 4 was amended. 410-416 So. 2d XXI (West Miss. Cas.
1982).
Comment
The original version of Rule 4, effective as of January 1, 1982, was amended by the
Mississippi Supreme Court on March 5, 1982. The amending order deleted the entire text
of Rule 4 and substituted the prior statutory procedure for service of the summons. On
December 28, 1984, the Supreme Court adopted a new Rule 4, effective March 1, 1985.
Forms applicable to the new Rule 4 were adopted on May 2, 1985. This comment pertains
13
to new Rule 4 and its forms.
After an action is commenced, the clerk is required to issue a separate summons for
each defendant except in the case of summons by publication. The plaintiff or his attorney
has the right, by written election, to determine whether each summons shall be delivered to
the plaintiff or his attorney for service by process server or delivered by the clerk to the
sheriff of the county in which the defendant resides or may be found. Where service is by
publication, the clerk shall hand the summons to the plaintiff or to his attorney, or, if so
requested by either of them, the clerk shall hand it to the publisher of the proper newspaper
for publication.
Forms 1A, 1AA, 1B and 1C are provided as suggested forms for the various
summons. All summonses used pursuant to Rule 4 must be in substantial conformity with
these forms.
Various "Processes" provided for by statute, other than the summons and subpoena
(the subpoena is governed by Rule 45), will continue to be governed by statute.
Rule 4(a)(2) requires that a copy of the complaint be served with the summons. Rule
4(b) requires that the summons form notify defendant that his failure to appear will result in
a judgment by default against defendant for the relief demanded in the complaint. Although
the "judgment by default will be rendered" language may be an overstatement, the language
is included in Rule 4 for two reasons. First, the language is part of Federal Rule 4(b), and
an effort has been made to maintain procedural conformity between the Mississippi and
federal systems where possible. Second, the strong language is deemed more likely to
encourage defendants to appear to protect their interests.
Rule 4(b) provides that where there are multiple plaintiffs or defendants, the summons
may name just the first party on each side, together with the name and address of the party
to be served. However, the complaint, which must accompany the summons, will provide
the names of all parties to the action.
Exhibits to the complaint form a part of the complaint and in most cases should be
attached to the complaint [See Rule 10(d)]. However, in cases where unusually lengthy
exhibits are attached to the complaint, plaintiff may elect not to attach copies of the lengthy
exhibits to the copies of the complaint served, but instead may attach a statement to the effect
that such exhibits are not attached because of their size and that the exhibits are available for
inspection and copying.
Rule 4(c)(1) provides for service by a process server and Rule 4(c)(2) provides for
14
service by a sheriff. There is no limit to the territorial jurisdiction of a process server who
may serve the summons anywhere in the world. A sheriff, however, may serve the summons
only within his county. However, the mere service of the summons and complaint does not,
of itself, resolve all questions as to jurisdiction over the person of the defendant, and any
such questions may be raised at appropriate times.
A party using a process server may pay such person any amount that is agreed upon.
However, only that amount statutorily allowed to the sheriff under Miss. Code Ann. §
25-7-19 (Supp. 1984) may be taxed as recoverable costs in the action.
Plaintiff is given the option under Rule 4(c)(3) of obtaining service by first-class mail.
Defendant's failure to complete and return one copy of the "Notice and Acknowledgment for
Service by Mail" may trigger the cost-shifting provisions of Rule 4(c)(3)(B). The provisions
for service by first-class mail are modeled upon Federal Rule 4(c)(2)(C)(ii). The completion
and return of Form 1B (Notice and Acknowledgment for Service by Mail) does not operate
as a waiver of objections to jurisdiction. All jurisdictional objections are preserved whether
Form 1B is completed and returned from inside or outside the State.
Rule 4(c)(4) provides for service of summons by publication and generally tracks the
previous statutory requirements for summons by publication under Miss. Code Ann. §
13-3-19 et seq. (1972). However, a few major changes should be noted. Under Rule
4(c)(4)(B), "[t]he defendant shall have thirty (30) days from the date of first publication in
which to appear and defend." The thirty days from first publication is a shorter time in which
one must respond than was previously provided by statute.
Publication under this rule is deemed complete with the third publication in those
instances where the time of an event is related to completion of publication. However, it
should be noted that this is not deemed to alter the time for response by defendant.
It should be noted that there will be instances under Rule 4(c)(4)(E) where service by
publication is appropriate for persons under disability, but service of the summons and
complaint upon the "other person" required to be served under Rule 4(d)(2) will not be
appropriate by publication because the "other person" may be found within the State of
Mississippi.
Rule (4)(c)(4)(C) continues the previous statutory requirement that the clerk send a
copy of the summons (and now also of the complaint) by first-class mail to the address of the
defendant. The mailing provides further opportunity to give defendant notice of the action.
If the defendant's post office address is unknown to plaintiff after diligent inquiry, then the
mailing of the summons and complaint is not required.
15
Rule 4(c)(5) provides for "Service by Certified Mail on Person Outside State" by
sending a copy of the summons and complaint to the person to be served by certified mail,
return receipt requested. The certified mail procedure is not available to serve a person
within the state. It is an alternative form of service because a person outside of the state may
also be served under Rule 4(c)(1), 4(c)(3) or 4(c)(4).
The Rule 4(c)(5) procedure supplants the circuitous procedures previously available
to obtain in personam jurisdiction against nonresidents. E.g. Miss. Code Ann. § 13-3-63
(1972). However, the criteria for subjecting nonresidents to the jurisdiction of Mississippi
courts are those established by the legislature.
Rule 4(d) provides the methods by which the summons and complaint may be served
by a sheriff or process server. The basics of service follow generally the previous statutory
practice under Miss. Code Ann. § 13-3-33 et seq. (1972). However, there are differences
which must be noted. Rule 4(d)(1)(A) tracks previous statutory practice by providing that
reasonable diligence be made to deliver a copy of the complaint and summons to the person
personally or to his authorized agent. Where the summons and complaint cannot be delivered
to the defendant personally, the copies may be delivered at defendant's usual place of abode
by leaving the same with defendant's spouse or some other person of the defendant's family
above the age of sixteen years who is willing to receive service. The corresponding Federal
Rule 4(d)(1) has no such requirement. A new procedural safeguard has been added to this
mode of "residence service." A copy of the summons and complaint must thereafter be
mailed (first-class mail, postage prepaid) to the person to be served at the place where a copy
of the summons and complaint were left. Such "residence service" of a summons is not
deemed complete until the 10th day after such mailing.
Rule 4(d)(2)(A) provides for service upon an unmarried infant and makes several
changes from previous practice. The unmarried infant must only be served a copy of the
summons and complaint if twelve years of age or older (previously there was no age
limitation). The rule now specifies that the guardian served may be the guardian of either the
person or of the estate of the unmarried minor, and such service is now permitted upon "the
individual having care of such infant or with whom he lives" in addition to the infant's
mother, father or legal guardian. This rule is not intended to depart from the basic concepts
of traditional Mississippi practice which must still be followed. See: Section 232, Griffith,
Mississippi Chancery Practice. The record, exclusive of server's return, should reflect facts
sufficient to establish service upon the proper person.
Rule 4(e) provides for waiver of service of the summons and complaint and tracks the
provisions of Miss. Code Ann. § 13-3-71(1) (Supp. 1984). The waiver must be dated and
signed by the defendant after the day on which the action is commenced. A waiver may be
16
executed without a summons having been issued since for purposes of Rule 4(e)
"commencing the action" means merely filing the complaint. Although the Statutory
provisions of Miss. Code Ann. § 13-3-71(2) (Supp. 1984) dealing with when causes are
triable after waiver by a fiduciary are not mentioned in Rule 4(e), such provisions are not in
conflict with Rule 4(e) and continue in effect.
Rule 4(f) provides that the person serving the process shall promptly file a return of
service with the court. Prior to revision in 1997, the rule sanctioned making the return at any
time before the person served was required to respond. The failure to promptly file a return
may precipitate a default or defeat a defendant's right to remove the case. The purpose of the
requirement for prompt filing is to avoid these problems that may arise when a defendant is
unable to verify the date of service by examining the return of service in the court records.
Rule 4(h) provides that service upon a defendant must be made within 120 days after
the filing of the complaint or the cause will be dismissed without prejudice as to that
defendant unless good cause can be shown as to why service could not be made.
[Comment adopted effective March 1, 1986; amended effective February 1, 1990; July 1,
1998 April 13,2000 .]
17
RULE 5. SERVICE AND FILING OF PLEADINGS
AND OTHER PAPERS
(a) Service: When Required. Except as otherwise provided in these rules, every
order required by its terms to be served, every pleading subsequent to the original complaint
unless the court otherwise orders because of numerous defendants, every paper relating to
discovery required to be served upon a party unless the court otherwise orders, every written
motion other than one which may be heard ex parte, and every written notice, appearance,
demand, offer of judgment, designation of record on appeal and similar paper shall be served
upon each of the parties. No service need be made on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief against them shall be
served upon them in the manner provided in Rule 4 for service of summons. In an action
begun by seizure of property, in which no person need be or is named as defendant, any
service required to be made prior to the filing of an answer, claim, or appearance shall be
made upon the person having custody or possession of the property at the time of its seizure.
(b) (1) Service: How Made. Whenever under these rules service is required or
permitted to be made upon a party who is represented by an attorney of record in the
proceedings, the service shall be made upon such attorney unless service upon the party
himself is ordered by the court. Service upon the attorney or upon a party shall be made by
delivering a copy to him; or by transmitting it to him by electronic means; or by mailing it
to him at his last known address, or if no address is known, by leaving it with the clerk of the
court, or by transmitting it to the clerk by electronic means. Delivery of a copy within this
rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk
or other person in charge thereof; or, if there is no on one in charge, leaving it in a
conspicuous place therein; or, if the office is closed or the person to be served has no office,
leaving it at his dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein. Service by electronic means is complete when the electronic
equipment being used by the attorney or party being served acknowledges receipt of the
material. If the equipment used by the attorney or party being served does not automatically
acknowledge the transmission, service is not complete until the sending party obtains an
acknowledgment from the recipient. Service by mail is complete upon mailing.
(2) Electronic Court System Service: How Made. Where a court has, by local
rule, adopted the Mississippi Electronic Court System, service which is required or permitted
under these rules shall be made in conformity with the Mississippi Electronic Court System
procedures.
(c) Service: Numerous Defendants. In any action in which there are unusually large
numbers of defendants, the court, upon motion or of its own initiative, may order that service
18
of the pleadings of the defendants and replies thereto need not be made as between the
defendants, and that any cross-claim, counter-claim, or matter constituting an avoidance or
affirmative defense contained therein shall be deemed to be denied or avoided by all other
parties and that the filing of any such pleading and service upon the plaintiff constitutes due
notice of it to the parties. A copy of every such order shall be served upon the parties in such
manner and form as the court directs.
(d) Filing. All papers after the complaint required to be served upon a party shall be
filed with the court either before service or within a reasonable time thereafter but, unless
ordered by the court, discovery papers need not be filed until used with respect to any
proceeding. Proof of service of any paper shall be upon certificate of the person executing
same.
(e) (1) Filing With the Court Defined. The filing of pleadings and other papers with
the court as required by these rules shall be made by filing them with the clerk of the court,
except that the judge may permit the papers to be filed with him, in which event he shall note
thereon the filing date and forthwith transmit them to the office of the clerk.
(2) Electronic Filing with Court Defined. A court may, by local rule, allow
pleadings and other papers to be filed, signed, or verified by electronic means in conformity
with the Mississippi Electronic Court System procedures. Pleadings and other papers filed
electronically in compliance with the procedures are written papers for purposes of these
rules.
[Amended effective March 1, 1989; Amended effective January 8, 2009, for the purpose of
establishing a pilot program for Mississippi Electronic Court System.]
Advisory Committee Historical Note
Effective March 1, 1989, Rule 5(b) and Rule 5(e) were amended by authorizing the
service and filing of pleadings and documents by electronic means. 536-538 So. 2d XXI
(West Miss. Cas. 1989).
Comment
The purpose of Rule 5 is to provide both an expedient method of exchanging written
communications between parties and an efficient system of filing papers with the clerk. This
rule presupposes that the court has already gained jurisdiction over the parties. A "pleading
subsequent to the original complaint" which asserts a claim for relief against a person over
whom the court has not at the time acquired jurisdiction must be served upon such person not
19
a party along with a copy of a summons in the same manner as the copy of the summons and
complaint is required to be served upon the original defendants. See Miss. Code Ann. §
11-5-37 (1972) (answer may be made a cross-bill). However, where a plaintiff has settled
his case, the service on him of a notice and motion to intervene is ineffectual to bring him
back into court. This is consistent with Mississippi practice, although past procedure did not
recognize intervention. See Hyman v. Cameron, 46 Miss. 725 (1872).
A motion which may be heard ex parte is not required to be served, but should be
filed; see also M.R.C.P. 81(b). The enumeration of papers in Rule 5(a) which are required
to be served is not exhaustive; also included are affidavits in support of or in opposition to
a motion, Rule 6(d), and a motion for substitution of parties, Rule 25.
Discovery papers, referred to in Rule 5(a), embrace interrogatories, Rule 33, requests
for admission, Rule 36, and requests for production, Rule 34. Responses served under the
provisions of any of these rules must also be served on all parties.
The Administrative Office of Courts (AOC) is authorized to establish procedures for
a comprehensive electronic case management and electronic filing system known as the
Mississippi Electronic Court System (MEC). Please refer to the Administrative Procedures
for Mississippi Electronic Court System on the Supreme Court’s website at www.
mssc.state.ms.us. While the use of the MEC is optional for the chancery, circuit, and county
courts, the procedures must be followed where a court has adopted and implemented the
MEC by local rule. Therefore, to the extent the MEC procedures address service and filing
of pleadings and other papers, the procedures should be followed to satisfy Rule 5(e) and
Rule 5(b). For purposes of Rule 5(e), the MEC procedures provide reasonable exceptions
to the requirement of electronic filing.
A secondary purpose of Rule 5(c) is to permit the court to alleviate some of the
difficulties in actions where there are unusually large numbers of defendants. Rule 5(c) is
the only instance in which the provisions of Rule 7(a) (pleadings allowed) are permitted to
be relaxed. This relaxation extends only to replies to counter-claims and answers to
cross-claims; other pleadings and all motions must still be served in the usual manner.
Rule 5(d) recognizes both the expense of making additional transcripts of recordings
and duplicating exhibits or attachments to discovery papers, and the fact that the routine
filing of such items can engulf the space in a clerk's office. Accordingly, papers produced
in the course of discovery need not be filed with the court unless they are relevant to some
proceeding or the court so directs, nor must all discovery papers be filed if only some of them
are required for the disposition of some motion or proceeding. M.R.C.P. 5(d) differs from
Federal Rule 5(d) in the preceding respect, but accords with the recommendations of the
20
American Bar Association for correcting abuses in the discovery procedures. See Special
Committee for the Study of Discovery Abuse, Section of Litigation, A.B.A., Report, at 1, 2
(1977).
Of further significance in Rule 5(d) is that, although service must be made within the
times prescribed, filing is permitted to be made within a reasonable time thereafter. See
Blank v. Bitker, 135 F.2d 962 (7th Cir. 1943). Instances requiring the pleading to be filed
before it is served include Rule 3 (complaint) and any other pleading stating a claim for relief
which it is necessary to serve with a summons. Pursuant to Rule 5(c) (numerous defendants)
the filing of a pleading, coupled with service on the plaintiff, is notice to the parties. Rule
65(b) requires temporary restraining orders to be filed forthwith in the clerk's office.
To obtain immediate court action under Rule 5(e), a party may file his papers with the
judge, if the latter permits, and obtain such order as the judge deems proper. Rule 5(e)
should be read in conjunction with Rules 77(a) (courts always open), 77(b) (trials and
hearings; orders in chambers), and 77(c) (clerk's office and orders by clerk).
Rule 5(b) has no application to service of summons; that subject is completely covered
by Rule 4.
For general discussions of the federal rule analogous to M.R.C.P. 5, see 1 Wright &
Miller, Federal Practice and Procedure, Civil §§71-82 (1969), and 2 Moore's Federal Practice
¶¶ 5.01-5.11 (1975).
21
RULE 6. TIME
(a) Computation. In computing any period of time prescribed or allowed by these
rules, by order of court, or by any applicable statute, the day of the act, event, or default from
which the designated period of time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday,
as defined by statute, or any other day when the courthouse or the clerk's office is in fact
closed, whether with or without legal authority, in which event the period runs until the end
of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the
courthouse or the clerk's office is closed. When the period of time prescribed or allowed is
less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded
in the computation. In the event any legal holiday falls on a Sunday, the next following day
shall be a legal holiday.
(b) Enlargement. When by these rules or by notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified time, the court for cause
shown may at any time in its discretion (1) with or without motion or notice order the period
enlarged if request therefore is made before the expiration of the period originally prescribed
or as extended by a previous order, or (2) upon motion made after the expiration of the
specified period permit the act to be done where failure to act was the result of excusable
neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b),
59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.
(c) Unaffected by Expiration of Term. The period of time provided for the doing
of any act or the taking of any proceeding is not affected or limited by the continued
existence or expiration of a term of court. The existence or expiration of a term of court in
no way affects the power of a court to do any act or take any proceeding in a civil action
consistent with these rules.
(d) Motions. A written motion, other than one which may be heard ex parte, and
notice of the hearing thereof shall be served not later than five days before the time fixed for
the hearing, unless a different period is fixed by these rules or by order of the court. Such
an order may for cause shown be made on ex parte application. When a motion is supported
by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided
in Rule 59(c), opposing affidavits may be served not later than one day before the hearing,
unless the court permits them to be served at some other time.
(e) Additional Time After Service by Mail. Whenever a party has the right or is
required to do some act or take some proceedings within a prescribed period after the service
of a notice or other paper upon him and the notice or paper is served upon him by mail, three
22
days shall be added to the prescribed period. This subdivision does not apply to responses
to service of summons under Rule 4.
[Amended effective March 1, 1989; amended effective June 24, 1992; amended effective
July 1, 2008.]
Advisory Committee Historical Note
Effective June 24, 1992, Rule 6(a) was amended to provide that the legal holidays
which cause a period of time to be enlarged are those defined by statute. 598-602 So. 2d
XXII-XXIII (West Miss. Cas. 1992).
Effective March 1, 1989, Rule 6(a) was amended to abrogate the inclusion of time
periods established by local court rules. 536-538 So. 2d XXI (West Miss. Cas. 1989).
Comment
The purpose of Rule 6 is to provide reasonably flexible, general guidelines for the
measurement of time periods under these rules. Rule 6(a) implements a new method for
computing time by excluding Saturday or legal holidays from being the last day of a time
period, and excluding intermediate Saturdays, Sundays, and legal holidays from the
computation when the total time period is less than seven days.
It is not uncommon for clerks' offices and courthouses to be closed occasionally
during what are normal working periods, whether by local custom or for a special purpose,
such as attendance at a funeral. Rule 6(a) was drafted to obviate any harsh result that may
otherwise ensue when an attorney, faced with an important filing deadline, discovers that the
courthouse or the clerk's office is unexpectedly closed.
Under Rule 6(b), the court is given wide discretion to enlarge the various time periods
both before and after the actual termination of the allotted time, certain enumerated cases
being expected. Accord, e. g., Rogers v. Rogers, 290 So.2d 631 (Miss.), cert. denied 419
U.S. 837 [95 S. Ct. 65, 42 L.Ed.2d 64] (1974); Grand Lodge Colored K.P. v. Yelvington, 111
Miss. 352, 71 So. 576 (1916).
Importantly, such enlargement is to be made only for cause shown. If the application
for additional time is made before the period expires, the request may be made ex parte; if
it is made after the expiration of the period, notice of the motion must be given to other
parties and the only cause for which extra time can be allowed is "excusable neglect."
Excusable neglect is discussed and illustrated in 4 Wright & Miller, Federal Practice and
Procedure, Civil § 1165 (1969).
23
Rule 6(c) does not abolish court terms. This rule merely provides greater flexibility
to the courts in attending the myriad functions they must perform, many of which were
heretofore possible only during term time. The rule is also consistent with the provisions
elsewhere herein that prescribe a specific number of days for taking certain actions rather
than linking time expirations to the opening day, or final day, or any other day of a term of
court; e. g., M.R.C.P. 6(d) (motions and notices of hearings thereon to be served not less than
five days before time fixed for hearing), and M.R.C.P. 12(a) (defendant to answer within
thirty days after service of summons and complaint).
Rule 6(d) is self-explanatory in requiring a minimum of five days notice for hearing
motions.
Rule 6(e) is patterned after Miss. Code Ann. § 13-3-83 (1972) and adds nothing new
to Mississippi practice.
[Amended effective August 11, 2005.]
24
CHAPTER III. PLEADINGS AND MOTIONS
RULE 7. PLEADINGS ALLOWED; FORM OF MOTIONS
(a) Pleadings. There shall be a complaint and an answer; a reply to a counter-claim
denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a
third-party complaint, if a person who is not an original party is summoned under the
provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other
pleading shall be allowed, except that the court may order a reply to an answer or a
third-party answer.
(b) Motions and Other Papers.
(1) An application to the court for an order shall be by motion which, unless made
during a hearing or trial, shall be made in writing, shall state with particularity the grounds
therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled
if the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing, or other matters of form of pleadings
apply to all motions and other papers provided for by these rules.
(c) Size of Paper. All pleadings, motions and other papers, including depositions,
shall be made on 8 1/2" by 11" paper. The format for all depositions shall comply with the
Guidelines for Court Reporters as provided in Mississippi Supreme Court Rule 11.
(d) Demurrers, Pleas, etc., Abolished.
insufficiency of a pleading shall not be used.
Demurrers, pleas, and exceptions for
Advisory Committee Historical Note
Effective November 19, 1992, Rule 7(c) was redesignated Rule 7(d), and a new Rule
7(c), requiring letter size paper for all pleadings, motions and other papers was adopted. 606­
607 So. 2d XIX-XX (West Miss. Cas. 1993).
Comment
The purpose of Rule 7 is to facilitate the court's ability to reach a just decision on the
merits of a case by providing for a simple and elastic pleading and motion procedure which
emphasizes substance rather than form. Rule 7(a) contemplates that in the normal situation
of a claim and a defense the pleadings shall consist of only a complaint and an answer; under
25
certain circumstances a reply may be ordered to an answer or a third-party answer.
Affirmative defenses in the answer are deemed denied or avoided, and a reply is required if
the answer contains a counter-claim denominated as such. Otherwise, a reply is unauthorized
and may be stricken or disregarded. In no case may the pleading go beyond the reply. It
should be noted that the general provision requiring or allowing a reply is subject to the
qualification of Rule 5(c).
An answer is required where a cross-claim is set forth in a co-party's answer. Cf.
Miss. Code Ann. § 11-5-37 (1972). If a party to an action proceeds under Rule 14 to bring
in a third party, he must file a third-party complaint. If a third party is served, an answer is
required of him. No reply is mandatory to an answer made to a cross-claim, unless it
contains a counter-claim denominated as such. Although a third-party answer may contain
a counter-claim denominated as such, Rule 7(a) does not provide for a mandatory reply
thereto.
Rule 7(b)(1) provides that a motion must state with particularity the grounds therefore
and the relief or order sought. See generally, V. Griffith, Mississippi Chancery Practice, §§
399, 400 (2d ed. 1950). Reasonable specification is all that the requirement of particularity
imposes. Good practice dictates that an ex parte order should be based on a written motion.
The record will then show the basis for the ex parte order.
Rule 7(c) requires all filings and depositions to be made on short paper, and all
depositions to comply with transcript requirements. The purpose of Rule 7(c) is to facilitate
a system-wide transfer from legal size paper to letter size paper effective July 1, 1993. See
Miss.Sup.Ct. Rules 11, 32, and Guideline for Court Reporters. Voluntary compliance with
this Rule is to begin January 1, 1993; mandatory compliance will become effective July 1,
1993.
Rule 7(d) abolishes the use of demurrers and pleas and exceptions for insufficiency
of pleadings. This is in accordance with Miss. Code Ann. §§ 11-5-25, 11-5-45 and 11-7-59
(1972), but is contrary to Miss. Code Ann. §§ 11-5-23 and 11-7-79 (1972). Under these
rules, if a question concerning the legal sufficiency of a complaint is to be raised before
answering on the merits, it should be done by a motion to dismiss for failure to state a claim
upon which relief can be granted, Rule 12(b)(6), or for judgment on the pleadings, Rule
12(c).
While demurrers are abolished, no penalty should attach, in light of Rule 1, to the
denomination of a valid defense or objection as a demurrer. The defense or objection should
be treated as though it had been accurately denominated as a motion for certain relief.
Further, while it is desirable that pleadings be properly labeled in accordance with Rules 7(a)
26
and 8(c), there should be no penalty for mislabeling. See Shell Petroleum Corp. v. Stueve,
25 F. Supp. 879 (D. Minn. 1938); Howard v. United States, 28 F. Supp. 985 (W.D. Wash.
1939); Equitable Life Assurance Society v. Kit, 26 F. Supp. 880 (E.D. Pa. 1939); 5 Wright
& Miller, Federal Practice and Procedure, Civil § 1196 (1969).
As to when a reply should be ordered by the court, see 2A Moore's Federal Practice
¶ 7.03 (2d ed. 1968), and 5 Wright & Miller, Federal Practice and Procedure, Civil § 1185
(1969).
[Amended effective November 19, 1992.]
27
RULE 8. GENERAL RULES OF PLEADING
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an
original claim, counter-claim, cross-claim, or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to
relief, and,
(2) a demand for judgment for the relief to which he deems himself entitled. Relief
in the alternative or of several different types may be demanded.
(b) Defenses: Form of Denials. A party shall state in short and plain terms his
defenses to each claim asserted and shall admit or deny the averments upon which the
adverse party relies. If he is without knowledge or information sufficient to form a belief as
to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall
fairly meet the substance of the averments denied. When a pleader intends in good faith to
deny only a part or a qualification of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Unless the pleader intends in good faith to
controvert all the averments of the preceding pleading, he may make his denials as specific
denials or designated averments or paragraphs, or he may generally deny all the averments
except such designated averments or paragraphs as he expressly admits; but, when he does
so intend to controvert all of its averments, he may do so by general denial subject to the
obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter constituting an avoidance or
affirmative defense. When a party has mistakenly designated a defense as a counter-claim
or a counter-claim as a defense, the court on terms, if justice so requires, shall treat the
pleading as if there had been proper designation.
(d) Effect of Failure to Deny. Averments in a pleading to which a responsive
pleading is required, other than those as to the amount of damages, are admitted when not
denied in the responsive pleading. Averments in a pleading to which no responsive pleading
is required or permitted shall be taken as denied or avoided.
(e) Pleading to Be Concise and Direct: Consistency.
28
(1) Each averment of a pleading shall be simple, concise, and direct. No technical
forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or defense alternatively
or hypothetically, either in one count or defense or in separate counts or defenses. When two
or more statements are made in the alternative and one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate claims or defenses as he has,
regardless of consistency. All statements shall be made subject to the obligations set forth
in Rule 11.
(f) Construction of Pleadings.
substantial justice.
All pleadings shall be so construed as to do
(g) Pleadings Shall Not Be Read or Submitted. Pleadings shall not be carried by
the jury into the jury room when they retire to consider their verdict, except insofar as a
pleading or portion thereof has been admitted in evidence.
(h) Disclosure of Minority or Legal Disability. Every pleading or motion made by
or on behalf of a person under legal disability shall set forth such fact unless the fact of legal
disability has been disclosed in a prior pleading or motion in the same action or proceeding.
Comment
The purpose of Rule 8 is to give notice, not to state facts and narrow the issues as was
the purpose of pleadings in prior Mississippi practice. Consequently, the distinctions
between "ultimate facts" and "evidence" or conclusions of law are no longer important since
the rules do not prohibit the pleading of facts or legal conclusions as long as fair notice is
given to the parties. 5 Wright & Miller, Federal Practice and Procedure, Civil §§ 1202, 1218
(1969); 2A Moore's Federal Practice ¶¶ 8.12, 8.13 (2d ed. 1968); contra, Pigott v. Boeing
Co., 240 So.2d 63 (Miss.1970); and King v. Mississippi P. & L. Co., 244 Miss. 486, 142
So.2d 222 (1962) (it is not sufficient to allege negligence as a mere conclusion of the pleader,
but facts must be pleaded showing actionable negligence); see also Bennett v. Hardwell, 214
Miss. 390, 59 So.2d 82 (1952); McLemore v. McLemore, 173 Miss. 765, 163 So. 500 (1935)
(ultimate essential facts upon which action is based must be averred, but not the items of
evidence by which ultimate facts are to be proved); and Barnes v. Barnes, 317 So.2d 387
(Miss.1975) (where issue of possession of property was not presented by the pleadings in
divorce action and no proof as to possession appeared in record, that portion of decree
awarding possession of land to complainant was not substantiated by proof and was not
valid).
29
Although Rule 8 abolishes many technical requirements of pleadings, it does not
eliminate the necessity of stating circumstances, occurrences, and events which support the
proffered claim. Averments of residency are no longer required unless needed by the claim,
as in divorce proceedings. See Miss. Code Ann. § 93-5-5 (1972). The rule allows the claims
to be stated in general terms so that the rights of the client are not lost by poor drafting skills
of counsel.
The list of affirmative defenses in Rule 8(c) is not intended to be exhaustive. Useful
in determining what must be pleaded under 8(c) are considerations of policy, fairness, and
probability. See 5 Wright & Miller, supra, 1271. The pleader normally will not be penalized
for stating matter that technically is not an affirmative defense.
As with the statement of claims, notice of the defense raised by the defendant, Rule
8(d), is all that is required.
Rule 8(f) repudiates the prior Mississippi doctrine of construing the pleadings most
strongly against the pleader. See, e. g., Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644 (1942);
V. Griffith, Mississippi Chancery Practice, §§ 82, 175, 288, 307, 432 (2d ed. 1950).
Rule 8(g) accords with traditional Mississippi practice. See Miss. Code Ann. §
11-7-151 (1972) (all papers read in evidence on the trial of any cause may be carried from
the bar by the jury).
Rule 8(h) is intended to ensure that adequate notice is provided when one sues or
defends for the beneficial interest of another. See generally V. Griffith, supra, §§ 127-150.
30
RULE 9. PLEADING SPECIAL MATTERS
(a) Capacity. The capacity in which one sues or is sued must be stated in one's initial
pleading.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated with particularity. Malice,
intent, knowledge, and other conditions of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions precedent have been performed
or have occurred. A denial of performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act: Ordinance or Special Statute. In pleading an
official document or official act it is sufficient to aver that the document was issued or the
act was done in compliance with the law. In pleading an ordinance of a municipality or a
county, or a special, local, or private statute or any right derived therefrom, it is sufficient to
identify specifically the ordinance or statute by its title or by the date of its approval, or
otherwise.
(e) Judgment. In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a pleading,
averments of time and place are material and shall be considered like all other averments of
material matter.
(g) Special Damage. When items of special damage are claimed, they shall be
specifically stated.
(h) Fictitious Parties. When a party is ignorant of the name of an opposing party and
so alleges in his pleading, the opposing party may be designated by any name, and when his
true name is discovered the process and all pleadings and proceedings in the action may be
amended by substituting the true name and giving proper notice to the opposing party.
(i) Unknown Parties in Interest. In an action where unknown proper parties are
interested in the subject matter of the action, they may be designated as unknown parties in
interest.
31
Comment
The purpose of Rule 9 is to permit the pleading of special matters with maximum
emphasis on the substance of the pleading rather than on form.
Rule 9(a) is the same as was required by prior Mississippi procedure. See V. Griffith,
Mississippi Chancery Practice, 164 (2d ed. 1950). A party desiring to raise an issue as to the
legal existence, capacity, or authority of a party will be required to do so by specific negative
averment. This is consistent with past procedure which held that affirmative defenses cannot
be relied upon unless specially pleaded. See Miss. Code Ann. § 11-7-59(4) (1972); White
v. Thomason, 310 So.2d 914 (Miss. 1975). If lack of capacity appears affirmatively on the
face of the complaint, the defense may be raised by a motion pursuant to Rule 12(b)(6)
(failure to state a claim upon which relief may be granted), Rule 12(c) (a motion for
judgment on the pleadings), or Rule 12(f) (a motion to strike).
Rule 9(b) is well-established in common law and past Mississippi practice. McMahon
v. McMahon, 247 Miss. 822, 157 So.2d 494 (1963) (fraud will not be inferred or presumed
and cannot be charged in general terms; the specific facts which constitute fraud must be
definitely averred); Griffith, supra, §§ 176, 589. "Circumstances" refers to matters such as
the time, place, and contents of the false representations, in addition to the identity of the
person who made them and what he obtained as a result. See 5 Wright & Miller, Federal
Practice and Procedure, Civil § 1297 (1969). The so-called "textbook" elements of fraud
may be pleaded generally, i. e., (1) false representation of a material fact, Sovereign Camp,
W.O.W. v. Boykin, 182 Miss. 605, 181 So. 741 (1938); (2) knowledge of or belief in its falsity
by the person making it, H. D. Sojourner Co. v. Joseph, 186 Miss. 755, 191 So. 418 (1939);
(3) belief in its truth by the person to whom it is made, Pilot Life Ins. Co. v. Wade, 153 Miss.
874, 121 So. 844 (1929); (4) intent that it should be acted upon, McNeer & Dodd v. Norfleet,
113 Miss. 611, 74 So. 577 (1917); (5) detrimental reliance upon it by the person claiming to
have been deceived, Clopton v. Cozart, 21 Miss. 363 (1850).
Conditions of mind, such as intent and malice, are required to be averred only
generally. Cf. Benson v. Hall, 339 So.2d 570 (Miss.1976), and Edmunds v. Delta Democrat
Pub. Co., 230 Miss. 583, 93 So.2d 171 (1957) (charge in a libel suit that defendant published
libelous material "falsely and maliciously or with reckless disregard of the truth" without
alleging any facts, were mere conclusions of the pleader and were not admitted on demurrer).
Rule 9(c) conforms to traditional Mississippi practice. See Miss. Code Ann. §
11-7-109 (1972); McClave-Brooks Co. v. Belzoni Oil Works, 113 Miss. 500, 74 So. 332
(1917).
32
Rule 9(d) provides that in pleading an official document or official act, it is sufficient
to aver that the document was issued or the act done in compliance with law; it is not
necessary to allege facts showing due compliance. A defense based on the theory that an
official document or act is defective must be raised by a specific denial. See Ludlow Corp.
v. Arkwright-Boston Mfrs. Mut. Ins. Co., 317 So.2d 47 (Miss. 1975) (portions of official
document pertaining to Hurricane Camille, prepared by U.S. Army Corps of Engineers, were
admitted into evidence to prove empirical facts; portions containing hearsay, conclusions,
and irrelevant information were excluded).
Pleading ordinances, under Rule 9(d), is not significantly different from prior
Mississippi practice. When a claim or defense is founded upon an ordinance, the pleader
must specifically refer to the ordinance, as by its title or by the date of its approval; it is not
necessary that a certified copy of the ordinance be attached thereto, as was formerly required.
See White v. Thomason, supra.
Rule 9(d) does not modify the requirement of proof of local and private legislation
before such can be admitted into evidence; Miss. Code Ann. § 13-1-147 (1972) provides that
such legislation need not be specially pleaded.
Rule 9(e) is identical to Federal Rule 9(e) and conforms, generally, to prior
Mississippi practice. See Miss. Code Ann. § 11-7-111 (1972). Of course, MRCP 10(d)
states that a copy of the judgment should be attached to the pleading. If a defendant wishes
to question the validity of the judgment being sued upon, he must do so specifically in his
answer; he cannot raise the issue by a general denial or by a motion to dismiss. Once
jurisdiction is put in issue, however, the party relying on the earlier judgment or decision has
the burden of establishing its validity. 5 Wright & Miller, supra, §§ 1306-1307.
Under common law practice, allegations of time and place were considered immaterial
to a statement of the cause of action. A party was required to plead time accurately only
when it formed a material part of the substance of the case, as, for example, the date of a
written instrument being sued upon. Allegations of place were also immaterial and only in
local, as opposed to transitory, causes of action was it necessary to plead this assertion
accurately. MRCP 9(f) treats time and place as material on a motion testing the sufficiency
of the pleadings; accuracy in pleading time and place will facilitate the identification and
isolation of the transaction or event in issue and provide mechanism for the early
adjudication or testing of certain claims and defenses most notably, statutes of limitations.
5 Wright & Miller, supra, §§ 1308-1309; See also V. Griffith, supra, § 83(a).
Rule 9(g) conforms to past Mississippi practice requiring a detailed pleading of
special damages and only a general pleading of general damages.
33
Briefly stated, "general" damage may be considered to be that which is so usual an
accompaniment of the kind of breach or wrongdoing alleged in a complaint that the mere
allegation of the wrong gives sufficient notice. Conversely, "special" damage is loss or
injury of relatively unusual kind, which without specific notice the adversary would not
understand to be claimed. See Vicksburg & M.R.R. Co. v. Ragsdale, 46 Miss. 458 (1872)
(damages as may be presumed necessarily to result from a breach of contract need not be
stated; special damages must be specifically stated).
General damage includes all those normal and standardized elements of recovery
which the courts have adopted as safe bases of compensation and as to which they find it
desirable to forego, not only the requirement of detailed pleading, but other requirements
such as the "contemplation of the parties" requirement in contracts, or the requirement of
certainty of proof. In contract and property cases, general elements of damage are usually
based upon evaluation. Examples are the seller's claim for the refusal of the buyer to take
the land or goods, measured by the difference between the contract price and the market
value, or damages for the wrongful detention of land or goods, measured by the value of the
use of the rental, valued during the delay. Similarly, when interest is allowable as damages,
it is general damage.
The kinds of damage which are special and required to be set out in the complaint are
infinite; only a few instances will be noted here. In cases of injury or to destruction of
property, or its detention, any specific claims for damages other than the standardized
compensation (based upon the value of the property and interest, or in case of detention, the
rental or usable value) would be special. So, in actions for breach of contract all
consequential loses, such as expenses or the loss of profits expected upon transactions with
third persons, must be specially pleaded. In personal injury suits, the following are usually
treated as matters to be specially pleaded: loss of time and earnings; impairment of future
earning capacity; aggravation by the injury of a pre-existing disease; and insanity resulting
from the injury. C. McCormick, Damages § 8 (1935).
Rule 9(h) is an adaptation of Miss. Code Ann. § 11-7-39 (1972), while Rule 9(i) is an
adaptation of Miss. Code Ann. § 11-5-11 (1972); neither provision is new to Mississippi
practice.
[Comment amended effective April 13, 2000.]
34
RULE 10. FORM OF PLEADINGS
(a) Caption; Names of Parties. Every pleading shall contain a caption setting
forth the name of the court, the title of the action, the file number, and a designation as in
Rule 7(a). In the complaint the title of the action shall include the names of all the parties,
but in other pleadings it is sufficient to state the name of the first party on each side with an
appropriate indication of other parties.
(b) Paragraphs; Separate Statement. The first paragraph of a claim for relief shall
contain the names and, if known, the addresses of all the parties. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each of which shall be limited
as far as practicable to a statement of a single set of circumstances; and the paragraph may
be referred to by number in all succeeding pleadings. Each claim founded upon a separate
transaction or occurrence and each defense other than denials shall be stated in a separate
count or defense whenever a separation facilitates the clear presentation of the matters set
forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by
reference in a different part of the same pleading or in another pleading or in any motion.
A copy of any written instrument which is an exhibit to a pleading is a part thereof for all
purposes.
(d) Copy Must Be Attached. When any claim or defense is founded on an
account or other written instrument, a copy thereof should be attached to or filed with the
pleading unless sufficient justification for its omission is stated in the pleading.
[Amended effective April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 10(d) was amended to suggest, rather than require that
documents on which a claim or defense is based be attached to a pleading. 753-745 So. 2d
XVII (West Miss. Cas. 2000.)
Comment
Rule 10(a) is substantially the same as current Mississippi practice. See Miss. Code
Ann. § 11-7-57 (1972).
The requirement in Rule 10(b) that averments be made in numbered paragraphs is
35
similar to Mississippi Chancery Court Rule 10. MRCP Rule 10(b) requires claims to be
presented in separate counts only when two conditions are met: the claims must be founded
upon separate transactions or occurrences, and a separation must facilitate the clear
presentation of the matters set forth. Thus, the pleader cannot be required to use separate
counts where his claims arise from a single transaction or occurrence. Even where the claims
arise from separate transactions or occurrences, the test as to whether separate counts must
be used is functional rather than conceptual; separate counts are required if they facilitate the
clear presentation of the matters set forth. Failure to comply with the requirements of Rule
10(b) is not ground for dismissal of the complaint or striking of the answer, but the defect
may be ordered cured by motion. See 5 Wright & Miller, Federal Practice and Procedure,
Civil § 1322 (1969).
Rule 10(c) permits incorporation of portions of pleadings by reference to later portions
of the same pleading or in subsequent pleadings or motions. This is particularly helpful
where a factual averment has bearing in subsequent allegations of a pleading. Further, when
pleadings are amended, prior phases of an earlier pleading not affected by the proposed
amendment can be incorporated by reference. This practice functions most successfully
when the requirement of numbered paragraphs, Rule 10(b), has been observed.
Defective incorporation by reference may be raised by a motion to strike, a motion for
a more definite statement, or a motion to dismiss for failure to state a claim upon which relief
can be granted. The court can also remedy the defect on its own motion. See Oppenheimer
v. F. J. Young & Co., 3 F.R.D. 220 (D.C.N.Y.1943); 5 Wright & Miller, supra, § 1327.
The original Rule 10(d) provided that "[w]hen any claim or defense is founded on an
account or other written instrument, a copy thereof must be attached to or filed with the
pleading unless sufficient justification for its omission is stated in the pleading." That
subdivision, which does not appear in Federal Rule 10 was included in the original MRCP
10 to continue the prior Mississippi practice. However, the Mississippi Supreme Court
criticized the mandate of subdivision 10(d) as being "at odds with the structure and
philosophy of the Rules." Gilchrist Machine Co. v. Ross, 493 So. 2d 1288, 1292 n.1 (Miss.
1986). It required the attachment of foundational documents, even if the pleading stated a
sufficient claim or defense under general pleading standards, and indeed even if the
document was voluminous and readily available to all sides. The Court by interpretation
removed much of the subdivision's mandatory effect. See Edwards v. Beasley, 577 So. 2d
384 (Miss. 1991) (trial judge committed reversible error by failing to permit the defendant
to amend the answer at trial to attach two agreements on which a defense was based);
Gilchrist, supra (failure to attach to the complaint invoices on which the claim was based did
not render the invoices inadmissible at trial); Bryant, Inc. v. Walters, 493 So. 2d 933, 938
(Miss. 1986) (failure to comply with 10(d) did not void a default judgment). Consequently,
36
subdivision 10(d) was amended to its present form, which states that foundational documents
should be attached, unless a reason for the failure to do so is stated. Thus, it remains good
practice normally to attach such documents as part of a clear statement of a claim or defense.
If, However, a foundational document is not attached to an otherwise sufficient pleading, the
document may be obtained through discovery.
[Comment amended effective April 13, 2000.]
37
RULE 11. SIGNING OF PLEADINGS AND MOTIONS
(a) Signature Required. Every pleading or motion of a party represented by an
attorney shall be signed by at least one attorney of record in that attorney’s individual name,
whose address shall be stated. A party who is not represented by an attorney shall sign that
party’s pleading or motion and state the party’s address. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The
rule in equity that the averments of an answer under oath must be overcome by the testimony
of two witnesses or of one witness sustained by corroborating circumstances is abolished.
The signature of an attorney constitutes a certificate that the attorney has read the pleading
or motion; that to the best of the attorney’s knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay. The signature of an attorney who
is not regularly admitted to practice in Mississippi, except on a verified application for
admission pro hac vice, shall further constitute a certificate by the attorney that the foreign
attorney has been admitted in the case in accordance with the requirements and limitations
of Rule 46(b) of the Mississippi Rules of Appellate Procedure.
(b) Sanctions. If a pleading or motion is not signed or is signed with intent to defeat
the purpose of this rule, it may be stricken as sham and false, and the action may proceed as
though the pleading or motion had not been served. For wilful violation of this rule an
attorney may be subjected to appropriate disciplinary action. Similar action may be taken if
scandalous or indecent matter is inserted. If any party files a motion or pleading which, in
the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the
court may order such a party, or his attorney, or both, to pay to the opposing party or parties
the reasonable expenses incurred by such other parties and by their attorneys, including
reasonable attorneys' fees.
[Amended effective March 13, 1991; amended effective January 16, 2003]
Advisory Committee Historical Note
Effective January 16, 2003, Rule 11(a) was amended to provide that the signature of
a foreign attorney certifies compliance with MRAP 46(b) and to make other editorial
changes. ____ So.2d ____ (West Miss.Cases 2003).
Effective March 13, 1991, Rule 11(b) was amended to provide for sanctions against
a party, his attorney or both. 574-576 So. 2d XXI (West Miss. Cas. 1991).
Comment
38
The purposes of Rule 11 are to require that all pleadings, motions, and papers in an
action be signed by at least one attorney of record and to eliminate the requirement of
verified pleadings. Only the original paper must be signed, although copies served on the
adverse attorneys should indicate by whom the original was signed. Counsel's office address
should appear on all pleadings and other papers. This procedure accords with Miss. Code
Ann. §§ 11-5-9 and 11-7-91 (1972).
Good faith and professional responsibility are the bases of Rule 11. Rule 8(b), for
instance, authorizes the use of a general denial "subject to the obligations set forth in Rule
11," meaning only when counsel can in good faith fairly deny all the averments in the adverse
pleadings should he do so. Also, a signed pleading may be introduced into evidence in
another action by an adverse party as proof of the facts alleged therein.
Verification will be the exception and not the rule to pleading in Mississippi; this is
a break from past practice. See Miss. Code Ann. §§ 11-5-21; 11-5-29; 11-5-31; and 11-5-33
(1972). No pleading need be verified or accompanied by affidavit unless there is a specific
provision to that effect in rule or statute. See Rules 27 (a) and 65.
Sham pleadings and willful violations are disciplined consistently with past
Mississippi procedure. See Sherrill v. Stewart, 197 Miss. 880, 21 So.2d 11 (1945).
The final sentence of Rule 11(b) is intended to ensure that the trial court has sufficient
power to deal forcefully and effectively with parties or attorneys who may misuse the liberal,
notice pleadings system effectuated by these rules. An objective standard is employed in
determining whether Rule 11 sanctions should be imposed. See, Tricon Metals & Services,
Inc. v. Topp, 537 So.2d 1331 (Miss.1989).
[Amended effective March 13, 1991.]
39
RULE 12. DEFENSES AND OBJECTIONS -- WHEN AND HOW
PRESENTED -- BY PLEADING OR MOTION -- MOTION
FOR JUDGMENT ON THE PLEADINGS
(a) When Presented. A defendant shall serve his answer within thirty days after the
service of the summons and complaint upon him or within such time as is directed pursuant
to Rule 4. A party served with a pleading stating a cross-claim against him shall serve an
answer thereto within thirty days after the service upon him. The plaintiff shall serve his
reply to a counter-claim in the answer within thirty days after service of the answer or, if a
reply is ordered by the court, within thirty days after service of the order, unless the order
otherwise directs. The service of a motion permitted under this rule alters these periods of
time as follows, unless a different time is fixed by order of the court:
(1) if the court denies the motion or postpones its disposition until the trial on the
merits, the responsive pleading shall be served within ten days after notice of the court's
action;
(2) if the court grants a motion for a more definite statement, the responsive pleading
shall be served within ten days after the service of the more definite statement.
The times stated under this subparagraph may be extended, once only, for a period not
to exceed ten days, upon the written stipulation of counsel filed in the records of the action.
(b) How Presented. Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counter-claim, cross-claim, or third-party claim, shall be asserted
in the responsive pleading thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Improper venue,
(4) Insufficiency of process,
(5) Insufficiency of service of process,
(6) Failure to state a claim upon which relief can be granted,
40
(7) Failure to join a party under Rule 19.
No defense or objection is waived by being joined with one or more other defenses
or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief
to which the adverse party is not required to serve a responsive pleading, he may assert at the
trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure
of the pleading to state a claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule 56;
however, if on such a motion matters outside the pleadings are not presented, and if the
motion is granted, leave to amend shall be granted in accordance with Rule 15(a).
(c) Motion for Judgment on the Pleadings. After the pleadings are closed but
within such time as not to delay the trial, any party may move for judgment on the pleadings.
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented
to and not excluded by the court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such a motion by Rule 56; however, if on such a
motion matters outside the pleadings are not presented, and if the motion is granted, leave
to amend shall be granted in accordance with Rule 15 (a).
(d) Preliminary Hearings. The defenses specifically enumerated (1) through (7) in
subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for
judgment on the pleadings (subdivision (c) of this rule), shall be heard and determined before
trial on application of any party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a responsive
pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to
frame a responsive pleading, he may move for a more definite statement before interposing
his responsive pleading. The motion shall point out the defects complained of and the details
desired. If the motion is granted and the order of the court is not obeyed within ten days
after notice of the order or within such other time as the court may fix, the court may strike
the pleading to which the motion was directed or make such order as it deems just.
(f) Motion to Strike. Upon motion made by a party before responding to a pleading
or, if no responsive pleading is permitted by these rules, upon motion made by a party within
thirty days after the service of the pleading upon him or upon the court's own initiative at any
time, the court may order stricken from any pleading any insufficient defense or any
41
redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion under this
rule may join with it any other motions herein provided for and then available to him. If a
party makes a motion under this rule but omits therefrom any defense or objection then
available to him which this rule permits to be raised by motion, he shall not thereafter make
a motion based on the defense or objection so omitted, except a motion as provided in
subdivision (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency
of process, or insufficiency of service of process is waived (A) if omitted from a motion in
the circumstances described in subdivision (g), or (B) if it is neither made by a motion under
this rule nor included in a responsive pleading or an amendment thereof permitted by Rule
15 (a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense
of failure to join a party indispensable under Rule 19, and an objection of failure to state a
legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a),
or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion that the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to
the court of proper jurisdiction.
Comment
The purpose of Rule 12 is to expedite and simplify the pretrial phase of litigation
while promoting the just disposition of cases. The periods of time referred to in Rule 12(a)
relate to service of process, motions, pleadings or notices, and not to the filing of the
instruments. Because of the nature of divorce cases, Rules 12(a)(1) and (2) do not apply to
such proceedings. See also M.R.C.P. 81(b). Rule 12(a) represents a marked change from
the former procedures which linked the return date or response date to a term of court. See
Miss. Code Ann. §§ 11-5-17; 11-7-121; and 13-3-13 (1972).
Rules 12(b)(6) and 12(c) serve the same function, practically, as the general demurrer.
See Investors Syndicate of America, Inc. v. City of Indian Rocks Beach, Florida, 434 F.2d
871, 874 (5th Cir. 1970). They are the proper motions for testing the legal sufficiency of the
complaint; to grant the motions there must appear to a certainty that the plaintiff is entitled
42
to no relief under any set of facts that could be proved in support of the claim.
If the complaint is dismissed with leave to amend and no amendment is received, the
dismissal is a final judgment and is appealable unless the dismissal relates to only one of
several claims. See Ginsburg v. Stern, 242 F.2d 379 (3rd Cir. 1957).
A motion pursuant to Rule 12(c) may be granted if it is not made so that its disposition
would delay the trial; the moving party must be clearly entitled to judgment. See Greenberg
v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973).
Under 12(d), the decision to defer should be made when the determination will
involve the merits of the action, thus making deference generally applicable to motions on
Rules 12(b)(6) and (c).
Rule 12(e) abolishes the bill of particulars. Miss. Code Ann. § 11-7-97 (1972). The
motion for a more definite statement requires merely that -- a more definite statement -- and
not evidentiary details. The motion will lie only when a responsive pleading is required, and
is the only remedy for a vague or ambiguous pleading.
Ordinarily, Rule 12(f) will require only the objectionable portion of the pleadings to
be stricken, and not the entire pleading. Motions going to redundant or immaterial
allegations, or allegations of which there is doubt as to relevancy, should be denied, the issue
to be decided being whether the allegation is prejudicial to the adverse party. Motions to
strike a defense for insufficiency should, if granted, be granted with leave to amend. Rule
12(f) is generally consistent with past Mississippi procedure. See Miss. Code Ann. §
11-7-59(3) (1972); Parish v. Lumbermen's Mut. Cas. Co., 242 Miss. 288, 134 So.2d 488
(1961).
Rule 12(g) allows the urging of all defenses or objections in one motion with no
waiver. There are three important qualifications which permit at least two rounds of motions:
(1) the requirement of consolidation applies only to defenses and objections then available
to the moving party; (2) the requirement applies only to defenses and objections which this
rule permits to be raised by motion; (3) the prohibition against successive motions is subject
to the exceptions stated in Rule 12(h).
Rule 12(h)(1) states that certain specified defenses which may be available to a party
when he makes a pre-answer motion, but which he omitted from the motion, are waived. A
party who by motion invites the court to pass upon a threshold defense should bring forward
all the specified defenses he then has and thus allow the court to do a reasonably complete
job. The waiver reinforces the policy of Rule 12(g) forbidding successive motions. 5 Wright
43
& Miller, Federal Practice and Procedure, Civil § 1391 (1969).
Rule 12(h)(2) preserves three defenses against waiver during the pleading, motion,
discovery, and trial stages of an action; however, such defenses are waived if not presented
before the close of trial. 5 Wright & Miller, supra, § 1392.
Under Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any
time, either by motion or answer. Further, it may be asserted as a motion for relief from a
final judgment under M.R.C.P. 60(b)(4) or may be presented for the first time on appeal.
Welch v. Bryant, 157 Miss. 559, 128 So. 734 (1930); Brown v. Bank, 31 Miss. 454 (1856).
This provision preserves the traditional Mississippi practice of transferring actions between
the circuit and chancery courts, as provided by Miss. Const. § 157 (all causes that may be
brought in the circuit court whereof the chancery court has jurisdiction shall be transferred
to the chancery court) and § 162 (all causes that may be brought in the chancery court
whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court),
but not reversing for a court's improperly exercising its jurisdiction, Miss. Const. § 147.
Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32 (1893).
[Amended effective February 1, 1990.]
44
RULE 13. COUNTER-CLAIM AND CROSS-CLAIM
(a) Compulsory Counter-claims. A pleading shall state as a counter-claim any claim
which at the time of serving the pleading the pleader has against any opposing party if it
arises out of the transaction or occurrence that is the subject matter of the opposing party's
claim and does not require for its adjudication the presence of third parties over whom the
court cannot acquire jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the subject of another
pending action; or
(2) the opposing party brought suit upon his claim by attachment or other process by
which the court did not acquire jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counter-claim under this Rule 13; or
(3) the opposing party's claim is one which an insurer is defending.
In the event an otherwise compulsory counter-claim is not asserted in reliance upon
any exception stated in paragraph (a), re-litigation of the claim may nevertheless be barred
by the doctrines of res judicata or collateral estoppel by judgment in the event certain issues
are determined adversely to the party electing not to assert the claim.
(b) Permissive Counter-Claims. A pleading may state as a counter-claim any claim
against an opposing party not arising out of the transaction or occurrence that is the subject
matter of the opposing party's claim.
(c) Counter-Claim Exceeding Opposing Claim. A counter-claim may or may not
diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding
in amount or different in kind from that sought in the pleading of the opposing party.
(d) Counter-Claim Against the State of Mississippi. These rules shall not be
construed to enlarge beyond the limits fixed by law the right to assert counter-claims or to
claim credits against the State of Mississippi, a political subdivision, or an officer in his
representative capacity or agent of either.
(e) Counter-Claim Maturing or Acquired After Pleading. A claim which either
matured or was acquired by the pleader after serving his pleading may, with the permission
of the court, be presented as a counter-claim by supplemental pleading.
(f) Omitted Counter-Claim. When a pleader fails to set up a counter-claim through
45
oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of
court set up the counter-claim by amendment on such terms as the court deems just.
(g) Cross-Claim Against Co Party. A pleading may state as a cross-claim any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counter-claim therein or relating to any property
that is the subject matter of the original action. Such cross-claim may include a claim that
the party against whom it is asserted is or may be liable to the cross-claimant for all or part
of the claim asserted in the action against the cross-claimant.
(h) Claims Exceeding Court's Jurisdiction. Upon the filing in the county court by
any party of a counter-claim or cross-claim which exceeds the jurisdictional limits of that
court, and upon the motion of all parties filed within twenty days after the filing of such
counter-claim or cross-claim, the county court shall transfer the action to the circuit or
chancery court wherein the county court is situated and which would otherwise have
jurisdiction.
(i) Joinder of Additional Parties. Persons other than those made parties to the
original action may be made parties to a counter-claim or cross-claim in accordance with the
provisions of Rules 19 and 20.
(j) Separate Trials; Separate Judgment. If the court orders separate trials as
provided in Rule 42(b), judgment on a counter-claim or cross-claim may be rendered in
accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the
claims of the opposing parties have been dismissed or otherwise disposed of.
(k) Appealed Actions. When an action is commenced in the justice court or in any
other court which is not subject to these rules and from which an appeal for a trial de novo
lies to a court subject to these rules, any counter-claim made compulsory by subdivision (a)
of this rule shall be stated as an amendment to the pleading within thirty days after such
appeal has been perfected or within such further time as the court may allow; and other
counter-claims and cross-claims shall be permitted as in an original jurisdiction action.
When a counter-claim or cross-claim is asserted by a defendant in such an appealed case, the
defendant shall not be limited in amount to the jurisdiction of the lower court but shall be
permitted to claim and recover the full amount of its claim irrespective of the jurisdiction of
the lower court.
Comment
The purpose of Rule 13 is to grant the court broad discretion to allow claims to be
46
joined in order to expedite the resolution of all the controversies between the parties in one
suit and to eliminate the inordinate expense occasioned by circuity of action and multiple
litigation:
It is, and should be, a paramount concern of the judiciary to prevent multiple
suits where one suit will suffice. There is a tendency, perhaps, to forget that
one who undergoes the rigors of an action, with all of its traumatic impact, loss
of time, delay, substantial expense and disruption of his affairs, with
consequent appeals and possible retrials and still other appeals, should be
spared having to do this more often than is strictly necessary. Even the
successful party after bearing the expense of one trial and of one appeal is, in
many instances, hardly a winner. Magee v. Griffin, 345 So.2d 1027, 1032
(Miss.1977).
Under Rule 13(a), some claims may now be asserted as counter-claims which heretofore
could have been interposed only by way of recoupment or set-off at law, See Miss. Code Ann.
§ 11-7-63 (1972), Myers v. Estell, 47 Miss. 4 (1872), or by cross-bill in equity, See Miss. Code
Ann. § 11-5-37 (1972); Stewart v. Stebbins, 30 Miss. 66 (1855). Rule 13(a), however, makes
it immaterial whether the counter-claim is legal or equitable, See Miss. Code Ann. § 11-5-37
(1972), or in contract or in tort, Miss. Code Ann. § 11-7-36 (1972), or even whether it has any
connection whatever with the plaintiff's claim, See Dewees v. Dewees, 55 Miss. 315 (1877),
Oxford v. Spears, 228 Miss. 433, 87 So.2d 914 (1956). A counter-claim is compulsory if there
is any logical relation between the original claim and the counter-claim. Under 13(b), all other
claims may be brought by a party in one action.
Under Rule 13(c), a counter-claim may ask for more or different relief than that sought
by the opposing party. Cf. Miss. Code Ann. §§ 11-7-63 - 69 (1972), Johnson v. Richardson, 234
Miss. 849, 108 So.2d 194 (1959). Also, under Rule 13 additional parties may be brought in to
defend against the counter-claim where there presence is necessary for the granting of complete
relief.
Rule 13(g), providing for cross-claims, is essentially equivalent to past Mississippi
chancery procedure, see Miss. Code Ann. § 11-5-37 (1972), and permits acceleration of liability
by the cross-claim.
Rule 13(h) tracks the provisions of Miss. Code Ann. § 9-9-21 (Supp. 1987) regarding the
jurisdiction of counter-claims in county court. The county court retains jurisdiction of a suit
when a counter-claim is brought which exceeds the jurisdictional amount for original suits in
county court unless a motion to transfer is made by all parties as described in Rule 13(h).
47
If a counter-claim or cross-claim has been properly asserted, then under M.R.C.P. 13(i)
any person whose joinder in the original action would have been possible (pursuant to M.R.C.P.
20, permissible joinder) may be added as a party to the counter-claim or cross-claim. M.R.C.P.
13(i) is identical to Federal Rule 13(h).
Because of the liberal provisions in Rule 13 for counter-claims and cross-claims, the trial
court may be faced with many disparate issues or claims in a single action. Should the court
determine that one or more of the counter-claims or cross-claims should be handled separately
to avoid prejudice or to promote convenience and economy, Rule 13(j) authorizes the judge to
invoke Rule 43(b) and order separate trials of the claims. M.R.C.P. 13(j) is identical to Federal
Rule 13(i).
Rule 13(k) governs actions appealed for trials de novo from lower courts in which there
are no compulsory counter-claim provisions. Under this rule the defendant in the trial de novo
must assert compulsory counter-claims within thirty days after the appeal has been perfected. In
pursuing his counter-claim or cross-claim the defendant is not limited to the jurisdictional ceiling
of the court below.
[Amended effective March 1, 1989.]
48
RULE 14. THIRD-PARTY PRACTICE
(a) When Defendant May Bring in Third Party. After commencement of the action and
upon being so authorized by the court in which the action is pending on motion and for good
cause shown, a defending party may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to him for all or part of the plaintiff's claim
against him. The person served with the summons and third-party complaint, hereinafter called
the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided
in Rule 12 and his counter-claims against the third-party plaintiff and cross-claims against other
third-party defendants as provided in Rule 13. The third-party defendant may assert against the
plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party
defendant may also assert any claim against the plaintiff arising out of the transaction or
occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The
plaintiff may assert any claim against the third-party defendant arising out of the transaction or
occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff and
the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his
counter-claims and cross-claims as provided in Rule 13. Any party may move to strike the
third-party claim, or for its severance or separate trial. A third-party defendant may proceed
under this rule against any person not a party to the action who is or may be liable to him for all
or part of the claim made in the action against the third-party defendant.
(b) When Plaintiff May Bring in Third Party. When a counter-claim is asserted against
a plaintiff, he may cause a third party to be brought in under circumstances which under this rule
would entitle a defendant to do so.
(c) [Admiralty and Maritime Claims] [Omitted].
[Former Rule 14 deleted effective May 1, 1982; new Rule 14 adopted effective July 1, 1986.]
Advisory Committee Historical Note
Effective July 1, 1986, a new Rule 14 was adopted. 486-490 So. 2d XVII (West Miss.
Cas. 1986).
Effective May 1, 1982, Rule 14 was abrogated. 410-416 So. 2d XXI (West Miss. Cas.
1982).
Comment
Third-party practice, or impleader, allows a defendant to bring into the action a person,
49
not previously a party, who is or may be liable to the defendant for all or part of the plaintiff's
claim against the defendant. The defendant thus becomes a third-party plaintiff with respect to
his claim against the new party, who becomes the third-party defendant. The purpose of the
practice is to avoid the problem of circuitous or duplicative actions, which occur when a
defendant, held liable in the first action, is required to bring a second action against another party
he alleges is derivatively or secondarily liable to him for all or part of the judgment. By
consolidating the main claim and the derivative or secondary claim in a single action, the court
may avoid inconsistent results, duplication of effort, and unnecessary delay.
The rule requires a party seeking to implead a third party to obtain authorization from the
court in all cases. (It thus differs from the federal version of Rule 14, which permits impleader
without leave if the third-party complaint is filed within 10 days after service of the defendant's
answer to the original claim.)
The rule also provides that "any party may move to strike the third-party claim" after it has
been asserted. On motions either to authorize or to strike a third-party claim, the court must, of
course, disallow any claim that does not meet the express requirements of the rule.
The rule also provides, however, that impleader should be permitted only for "good
cause." This term makes clear what is implicit in the federal rule, that the court has discretion
to disallow a claim even if it meets the technical requirements of the rule. As the cases
interpreting the federal rule state, the court should exercise its discretion in light of the policies
underlying the rule. Weyerhauser Co. v. Wells, 593 So. 2d 1010 (Miss. 1992) quotes the
foregoing portion of this paragraph with approval and states further:
It is apparent that the rule does not grant a defendant the right to have a third party
claim heard by the court in the same action. The Mississippi trial courts have
greater discretion on Rule 14 than the federal courts have. . . .
Thus, a valid third-party claim that will avoid circuitous or duplicative actions should
ordinarily be permitted, unless it would unduly delay the original action. If the court determines
that the third-party claim would unduly complicate the original action, it should not disallow
impleader; instead, it should permit the claim and order a separate trial as authorized by the rule
and by Rule 42(b).
It is essential that the third-party claim be for some form of derivative or secondary
liability of the third-party defendant to the third-party plaintiff. Third-party practice is not a
general device for bringing in additional parties to the action. It is not available, for example, to
bring in a party solely on the ground that he is or may be liable to the original plaintiff.
McPherson v. Hoffman, 275 F.2d 466 (6th Cir.1960); Campbell Construction Engineers, Inc. v.
50
Water Works & Sewer Board, 290 So.2d 194, 202, 52 Ala.App. 129 (1974). Thus, an allegation
that the third party is a joint tortfeasor or is the one really liable to the original plaintiff is
insufficient to state a third-party claim.
Impleader is likewise not available for the assertion of an independent action by the
defendant against a third party, even if the claim arose out of the same transaction or occurrence
as the main claim. See, e.g., Nagunst v. Western Union Tel. Co., 76 F.R.D. 631, 635
(D.Kan.1977). Once a third-party claim is properly asserted, however, the third-party plaintiff
may assert whatever additional claims he has against the third-party defendant under Rule 18 (a).
See, e.g., Schwab v. Erie Lackawanna R.R., 438 F.2d 62, 71 (3rd Cir.1971).
The requirement that the third-party claim be for derivative or secondary liability may be
met by, for example, an allegation of a right of indemnity (contractual or otherwise), contribution,
subrogation, or warranty. The rule does not, however, create any such rights. It merely provides
a procedure for expedited consideration of these rights where they are available under the
substantive law. Thus, since Mississippi does not recognize a right of contribution for joint
tortfeasors, Rule 14 will not, in general, permit impleader of a joint tortfeasor. Mississippi does,
however, permit contribution among judgment joint tortfeasors, and also recognizes a right of
indemnity in favor of a passive tortfeasor against an active one. See Bush v. City of Laurel, 215
So.2d 256, 259, 60 (Miss. 1968). Impleader would be available to accelerate the determination
of claims by one tortfeasor against another based upon either of these theories of derivative
liability, where their substantive requirements are satisfied. Similarly, a defendant may implead
his liability insurer if the insurer is disclaiming liability on the policy. An insurer against loss,
sued by its policyholder, may implead the person who allegedly caused the loss, where a right of
subrogation would arise from the insurer's payment of the plaintiff's claim.
Because the rule expressly allows third-party claims against one who "may be liable," it
is not an objection to impleader that the third party's liability is contingent on the original
plaintiff's recovery against the third-party plaintiff. Jeub v. B/G Foods, Inc., 2 F.R.D. 238
(D.Minn.1942).
The rule makes clear that a third-party claim may not be asserted against a person who is
already a party. This limitation presents no difficulty if the defending party wishes to assert a
claim for derivative liability against a co-party, because Rule 13(g) expressly allows cross-claims
asserting that the co-party "may be" liable to the claimant. If, however, the party against whom
the defendant wishes to assert his claim for derivative liability is a co-plaintiff of the party
asserting the main claim, then the defendant does face a difficulty: the terms of Rule 13(a) and
(b) state that a counter-claim must be mature. In a proper case, however, the court may order the
severance of the co-plaintiff to allow the claim to be asserted, then consolidate the actions under
Rule 42. See 6 Wright & Miller, Federal Practice and Procedure, Civil § 1446 (1990).
51
Although the rule does not state it expressly, a motion for leave to implead must be on
notice to all the parties to the action, but not to the proposed third-party defendant. Moreover,
under Rule 5 a copy of the third-party complaint, as well as the responsive pleadings of the
third-party defendant, must be served on all the parties.
The third-party defendant may assert his defenses to the third-party claim by motion or
answer as provided in Rule 12 and may assert defenses to the original plaintiff's claim against the
third-party defendant. This last provision is necessary, since the defendant's assertion of a
third-party claim may reduce his incentives to defend the original action vigorously.
The third-party defendant is subject to the compulsory counterclaim requirements of Rule
13(a) with respect to claims against the third-party plaintiff. He may also assert a claim he has
against the original plaintiff that arises out of the same transaction or occurrence on the main
claim, and the original plaintiff has a similar right vis-a-vis the third-party defendant.
The last sentence of the rule allows the third-party defendant to assert a fourth-party claim,
again subject to the provisions and limitations already discussed.
Rule 14(b) allows a plaintiff against whom a counterclaim has been asserted to implead
a third-party defendant. The rule's requirement that the claim asserted against plaintiff be a
counterclaim suggests that it must be asserted by an opposing party. In spite of this, the plaintiff
should be permitted to implead when the third-party defendant, who is not strictly an opposing
party, has asserted a claim against him. See 6 Wright & Miller, Federal Practice and Procedure,
Civil § 1464 (1990).
History: A version of Rule 14 was included in the original Rules of Civil Procedure adopted by
the Supreme Court in 1981.
[Amended April 18, 1995; amended effective January 27, 2005.]
52
RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS
(a) Amendments. A party may amend a pleading as a matter of course at any time before
a responsive pleading is served, or, if a pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial calendar, the party may so amend it
at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to
state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the
pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon
conditions and within time as determined by the court, provided matters outside the pleadings are
not presented at the hearing on the motion. Otherwise a party may amend a pleading only by
leave of court or upon written consent of the adverse party; leave shall be freely given when
justice so requires. A party shall plead in response to an amended pleading within the time
remaining for response to the original pleading or within ten days after service of the amended
pleading, whichever period may be longer, unless the court otherwise orders.
(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings
are tried by expressed or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure so to amend does not affect the result of the
trial of these issues. If evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would prejudice the
maintaining of the action or defense upon the merits. The court may grant a continuance to
enable the objecting party to meet such evidence. The court is to be liberal in granting permission
to amend when justice so requires.
(c) Relation Back of Amendments. Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading, the amendment relates back to the date of the original
pleading. An amendment changing the party against whom a claim is asserted relates back if the
foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the
summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be
prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against the party. An amendment pursuant to
53
Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such
amendment relates back to the date of the original pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit the party to serve a supplemental pleading setting
forth transactions, occurrences, or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the original pleading is
defective in its statement of a claim for relief or defense. If the court deems it advisable that the
adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
[Amended effective July 1, 1998; amended effective April 17, 2003 to allow amendments on
dismissal under Rule 12(b)(6) or judgment on the pleadings under Rule 12(c) where the court
determines that justice so requires.]
Advisory Committee Historical Note
Effective July 1, 1998, Rule 15(c) was amended to state that the relation back period
includes the time permitted for service of process under Rule 4(h).
Comment
“It is an invariable principle of practice that the admissible proof in any case must come
within the allegations of the pleadings and that it avails nothing to prove what is not charged. But
courts are organized for the purpose of hearing and determining causes on their actual merits;
and, although it is true that good faith and a reasonable diligence are expected of parties in equity
and of their solicitors, and that every party when he comes into court will in the first instance
unfold his whole case or defense in accordance with the rules that govern the pleadings and
proceedings therein, nevertheless it would be a hopelessly visionary and impractical expectation
that every party in every case could always successfully communicate at once to his solicitor all
the material facts with complete accuracy, or that any solicitor, although having all the facts, may
reach such a height of professional perfectibility as to stand above the possibility of error or
omission in pleading them -- as a consequence of which there would sometimes be a failure of
full justice on the actual merits unless amendment and correction in the pleadings, and in other
procedural steps, were seasonably and judiciously allowed.” V. Griffith, Mississippi Chancery
Practice, § 388 (2d ed. 1950).
The preceding statements state well the theory underlying Rule 15 and demonstrate that
amended pleadings have been liberally permitted throughout Mississippi legal history. See Miss.
54
Code Ann. §§ 11-5-45, 11-5-57, 11-5-59, 11-5-61, 11-5-63, 11-7-55, 11-7-59(3), 11-7-115, and
11-17-117 (1972); See also, Grocery Co. v. Bennett, 101 Miss. 573, 58 So. 482 (1912) (courts
are organized for the purpose of trying cases on their merits and only in exceptional cases should
trial courts refuse to permit amendments to pleadings or proceedings); Field v. Middlesex Bkg.
Co., 77 Miss. 180, 26 So. 365 (1899) (the presentation of a case on its merits should not be
defeated by reason alone of any formal rules of pleading and practice, if within the legitimate
powers of a court of conscience to avoid it).
M.R.C.P. 15(a) now varies from Federal Rule 15(a) in one important instance. The federal
rule permits a party to amend his pleading only once as a matter of course before a responsive
pleading is served; the Mississippi rule places no limit on the number of amendments.
Prior to the 2003 amendment of Rule 15(a), a party could, as a matter of right, amend
within thirty days after losing on Rule 12(b)(6) and 12(c) motions on which matters outside the
pleadings were not presented. In Poindexter v. Southern United Fire Ins. Co., 838 So. 2d 964
(2003), the Supreme Court recognized that the rule mandated an opportunity to amend upon
dismissal under Rule 12(b) even though circumstances might be such as would make an
amendment futile. Recognizing that the federal rule gives no such absolute right to amend, it was
suggested there that “the better course is to temper M.R.C.P. 15(a)’s mandate with the paramount
concerns of logic, futility of amendment, and judicial economy.” Poindexter, 838 So. 2d at 972,
Waller, J., concurring. Now, M.R.C.P. 15(a) expressly provides that in the event a Rule 12(b)(6)
or 12(c) motion is granted, leave to amend may be granted by the trial court where justice so
requires.
Under M.R.C.P. 15(b), when evidence is introduced or an issue is raised with the express
or implied consent of the other party, the pleadings shall be treated in all respects as if they had
been amended to conform to such evidence. If the opposing party objects but fails to persuade
the court that such party will be prejudiced in maintaining the party’s claim or defense, the court
must then grant leave to amend the pleadings to allow the evidence on the issue. If the objecting
party can show prejudice, the court may grant a continuance to meet the evidence, but should
again allow amendment of the pleadings. 6 Wright & Miller, supra, Civil § 1495.
Under Rule 15(c) the first test for whether an amendment relates back, is merely whether
the amended claim or defense arose from the same "conduct, transaction, or occurrence" as the
original. The remaining tests are whether the new party to be added by the amendment (if any)
is served before expiration of the period provided by Rule 4(h) for service of a summons and
complaint. An intended defendant who is notified of an action within the period allowed by Rule
4(h) for service of a summons and complaint may not defeat the action on account of a defect in
the pleading with respect to the defendant's name, provided that the requirements of clauses (1)
and (2) have been met. If the notice requirement is met within the Rule 4(h) period, a complaint
may be amended at any time to correct a formal defect such as a misnomer or misidentification.
55
In allowing a name-correcting amendment within the time allowed by Rule 4(h), this rule allows
not only the 120 days specified in that rule, but also any additional time resulting from any
extension ordered by the court pursuant to that rule, as may be granted, for example, if the
defendant is a fugitive from service of the summons.
Amendments pursuant to Rule 9(h) (fictitious parties) are not considered as changing
parties and do relate back.
Rule 15(d) permits supplemental pleadings when such are reasonably necessary to show
transactions, occurrences, or events which have transpired since the date of the pleading sought
to be supplemented. This conforms, generally, to prior Mississippi practice. See Wright v.
Frank, 61 Miss. 32 (1883).
While Rule 15(d) does not expressly incorporate the relation back doctrine of Rule 15(c),
it appears sensible that supplemental pleadings should be subject to the basic relation back tests
of 15(c). 6 Wright & Miller, supra, Civil § 1508.
[Amended effective September 1, 1987; amended August 21, 1996; amended July 1, 1998;
amended effective April 17, 2003.]
56
RULE 16. PRE-TRIAL PROCEDURE
In any action the court may on its own motion or on the motion of any party, and shall on
the motion of all parties, direct the attorneys for the parties to appear before it at least twenty
days before the case is set for trial for a conference to consider and determine:
(a) The possibility of settlement of the action;
(b) the simplification of the issues;
(c) the necessity or desirability of amendments to the pleadings;
(d) itemizations of expenses and special damages;
(e) the limitation of the number of expert witnesses;
(f) the exchange of reports of expert witnesses expected to be called by each party;
(g) the exchange of medical reports and hospital records, but only to the extent that such
exchange does not abridge the physician-patient privilege;
(h) the advisability of a preliminary reference of issues to a master for findings to be used
as evidence when the trial is to be by jury;
(i) the imposition of sanctions as authorized by Rule 37;
(j) the possibility of obtaining admissions of fact and of documents and other exhibits
which will avoid unnecessary proof;
(k) in jury cases, proposed instructions, and in non-jury cases, proposed findings of fact
and conclusions of law, all of which may be subsequently amended or supplemented as justice
may require;
(l) such other matters as may aid in the disposition of the action.
The court may enter an order reciting the action taken at the conference, the amendments
allowed to the pleadings, and the agreements made by the parties as to any other matters
considered, and limiting issues for trial to those not disposed of by admissions or agreements of
counsel; and such order when entered shall control the subsequent course of the action, unless
modified at the trial to prevent manifest injustice.
57
[Amended effective March 1, 1989; April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 16 was amended to allow the conference to be held
pursuant to the court's motion. 753-754 So. 2d. XVII (West Miss.Cas.. 2000.)
Effective March 1, 1989, Rule 16 was amended to abrogate provisions for a pretrial
calendar. 536-538 So.2d XXI (West Miss. Cas. 1989).
Comment
Rule 16 governs the pretrial conference. It provides that such a conference may be held
on the court's own motion or on the motion of any party and shall be held on the motion of all
parties. It authorizes the amending or supplementing of proposed jury instructions, or of
proposed findings of fact and conclusions of law in non-jury cases, after they have been
preliminarily agreed upon in the pretrial conference. Also, it provides that the court may enter
a pretrial order, and if such order is entered it “shall control the subsequent course of action
unless modified.”
[Comment amended April 18, 1995; April 13, 2000.]
58
RULE 16A. MOTIONS FOR RECUSAL OF JUDGES
Motions seeking the recusal of judges shall be timely filed with the trial judge and shall
be governed by procedures set forth in the Uniform Rules of Circuit and County Court Practice
and the Uniform Rules of Chancery Court Practice.
[Adopted, April 4, 2002.]
Advisory Committee Historical Note [Rule 16A]
Effective April 4, 2002, Rule 16A and the Comment were adopted. 813-815 So.2d
LXXXI (West Miss.Cases 2002).
Comment
Motions for recusal should be timely filed and should not be used for purposes of delay.
Specific procedures for presentation and consideration of motions seeking the recusal of judges
are set forth in URCCC 1.15 and Unif. Chanc. R. 1.11. See also, M.R.A.P. 48B concerning
review of the trial judges’ denial of motions to recuse under M.R.A.P. 21.
[Adopted, April 4, 2002.]
59
CHAPTER IV. PARTIES
RULE 17. PARTIES PLAINTIFF AND
DEFENDANT; CAPACITY
(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party
in interest. An executor, administrator, guardian, bailee, trustee, a party with whom or in whose
name a contract has been made for the benefit of another, or a party authorized by statute may
sue in his representative capacity without joining with him the party for whose benefit the action
is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of
the real party in interest until a reasonable time has been allowed after objection for ratification
of commencement of the action by, or joinder or substitution of, the real party in interest; and
such ratification, joinder or substitution shall have the same effect as if the action had been
commenced in the name of the real party in interest.
(b) Subrogation Cases. In subrogation cases, regardless of whether subrogation has
occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer
has a pecuniary interest in the claim the action shall be brought in the name of the subrogee. If
the subrogor still has a pecuniary interest in the claim, the action shall be brought in the names
of the subrogor and the subrogee.
(c) Infants or Persons Under Legal Disability. Whenever a party to an action is an
infant or is under legal disability and has a representative duly appointed under the laws of the
State of Mississippi or the laws of a foreign state or country, the representative may sue or defend
on behalf of such party. A party defendant who is an infant or is under legal disability and is not
so represented may be represented by a guardian ad litem appointed by the court when the court
considers such appointment necessary for the protection of the interest of such defendant. The
guardian ad litem shall be a resident of the State of Mississippi, shall file his consent and oath
with the clerk, and shall give such bond as the court may require. The court may make any other
orders it deems proper for the protection of the defendant. When the interest of an unborn or
unconceived person is before the court, the court may appoint a guardian ad litem for such
interest. If an infant or incompetent person does not have a duly appointed representative, he may
sue by his next friend.
(d) Guardian Ad Litem; How Chosen. Whenever a guardian ad litem shall be necessary,
the court in which the action is pending shall appoint an attorney to serve in that capacity. In all
cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or
compensation to be allowed and paid to such guardian ad litem for his service rendered in such
cause, to be taxed as a part of the cost in such action.
60
(e) Public Officers. When a public officer sues or is sued in his official capacity, he may
be described as a party by his official title rather than by name; but the court may require his
name to be added.
Comment
Rule 17 prescribes the general requirements that must be satisfied regarding the plaintiff's
interest in the subject matter of the proceeding and each litigant's capacity either to sue or be
sued. Rule 17(a) sets forth the basic principle for determining who may bring an action by
requiring that it be prosecuted "in the name of the real party in interest," provides specific
capacity rules to be followed in actions involving infants or persons under legal disabilities, and
provides for the appointment and remuneration of attorneys as guardians ad litem.
The second sentence of Rule 17(a) contains a specific enumeration of a number of persons
who are real parties in interest; the purpose of this listing is to provide guidance in cases in which
it might not be clear who the real party in interest is and to emphasize the fact that he might not
be the person beneficially interested in the potential recovery. Of course, the rule presumes that
applicable substantive laws of Mississippi give the persons named in the rule the right to sue.
Attempts have been made to interpret Rule 17 of the Federal Rules of Civil Procedure (after
which M.R.C.P. 17 was drafted) as creating an exception to the joinder requirements of Rule 19
by the portion of Rule 17(a) stating that anyone listed "may sue in his own name without joining
with him the party for whose benefit the action is brought"; the courts have rejected this
interpretation and have held that Rule 17(a) assumes that the joinder of those beneficially
interested in the action is not otherwise required. As a result, Rule 19 always must be consulted
to determine if all the necessary parties have been joined. 6 Wright & Miller, Federal Practice
and Procedure, Civil § 1543 (1971).
The provision that no action shall be dismissed on the ground that it is not prosecuted in
the name of the real party in interest until a reasonable time has been allowed, after the objection
has been raised, for ratification, joinder, or substitution, is added simply in the interests of justice.
Originally the rule was permissive in purpose: it was designed to allow an assignee to sue in his
own name. That having been accomplished, the modern function of the rule in its negative aspect
is simply to protect the defendant against a subsequent action by the party actually entitled to
recover, and to ensure generally that the judgment will have its proper effect as res judicata. See,
Miss. Code Ann. § 11-7-3 (1972); Smith v. Copiah County, 219 Miss. 633, 69 So.2d 404 (1954).
Rule 17(b) governs real parties in interest in subrogation cases. One of the most common
instances of subrogation is when the insurer indemnifies its insured, at which time the former
succeeds to whatever rights the latter has against the person who allegedly caused the damage.
Difficulties arise when the subrogated insurer seeks to bring suit in the name of the insured in
61
order to avoid the antipathy juries are thought to have toward insurance companies, especially
as against an injured person. As a practical matter, of course, the insurance company will control
the prosecution of the lawsuit no matter in whose name it is brought.
The general rule under the federal equivalent of M.R.C.P. 17(b) is that if an insurer has
paid the entire claim it is the real party in interest and must sue in its own name. This is sound
since it is logical that an insured who has no interest in the outcome of the litigation may not
bring suit. See U.S. v. Aetna Cas. & Sur. Co., 338 U.S. 366 [70 S. Ct. 207, 94 L.Ed. 171] (1949);
American Fid. & Cas. Co. v. All Am. Bus Lines, Inc., 179 F.2d 7 (10th Cir. 1949); 6 Wright &
Miller, supra, Civil § 1546.
The insurer who pays a part of the loss is only partially subrogated to the rights of the
insured. This may occur when the loss exceeds the coverage or when the insurance policy
contains a deductible amount that must be borne by the insured. The respective rights of the
parties in this situation parallel those when there has been a partial assignment: either the insured
or the insurer may sue in his own name. See U.S. v. Aetna Cas. & Sur. Co., supra. Thus, if the
insured brings suit, the insurer who is partially subrogated may intervene in the action to protect
his pro rata share of the potential recovery. See McDonald v. E. J. Lavino Co., 430 F.2d 1065
(5th Cir. 1970); Smith Petroleum Serv. Inc. v. Monsanto Chem. Co., 420 F.2d 1103 (5th Cir.
1970). If either sues and the other does not voluntarily join or intervene, the defendant may
protect himself from multiple lawsuits, by having the absent party joined. See U.S. v.. Aetna Cas.
& Sur. Co., supra, Cross v. Harrington, 294 F. Supp. 1340 (N.D.Miss. 1969); 6 Wright and
Miller, supra, Civil § 1546.
The first sentence of M.R.C.P. 17(c) provides that whenever an infant or person, under
a legal disability has a representative, such as a guardian, conservator, or other fiduciary, the
representative may sue or defend on behalf of his ward. If the infant or person under a legal
disability does not have a representative, he may be represented by a guardian ad litem.
If the rights of an unborn or unconceived person are before the court, that person may also
be represented by a guardian ad litem. Infants and persons under a legal disability may sue by
their next friends. Rule 17(c) gives the court the discretion to appoint guardians ad litem when
deemed necessary. For an example of when the appointment of a guardian ad litem was held
unnecessary to protect an infant, See Hutton v. Hutton, 233 Miss. 458, 102 So.2d 424 (1958).
The rule also sets forth the general, professional qualifications for a guardian ad litem.
Rule 17(d) provides that when the appointment of a guardian becomes necessary, the court
shall appoint an attorney to serve in that capacity, whose compensation shall be determined by
the court and taxed as a cost of the action. Rules, 17(c) and (d) are adapted from Miss. Code
Ann. § 9-5-89 (1972). See also V. Griffith, Mississippi Chancery Practice, § 34 (2d ed. 1950).
62
Rule 17(e) permits public officials to be referred to by their official titles when sued or
suing in their official capacities; however, the trial court is empowered to require that the
official's proper name be added. This subsection appears as Federal Rule 25(d)(2); however,
since it pertains more to capacities and interests of parties than to substitution of parties, it was
moved to Rule 17.
63
RULE 18. JOINDER OF CLAIMS AND REMEDIES
(a) Joinder of Claims. A party asserting a claim to relief as an original claim,
counter-claim, cross-claim, or third-party claim, may join, either as independent or as alternate
claims, as many claims as he has against an opposing party.
(b) Joinder of Remedies. Whenever a claim is one heretofore cognizable only after
another claim has been prosecuted to a conclusion, the two claims may be joined in a single
action; but the court shall grant relief in that action only in accordance with the relative
substantive rights of the parties.
Comment
The purpose of Rule 18 is to eliminate piecemeal litigation by permitting liberal joinder
of claims.
Rule 18(a) eliminates any restrictions on claims that may be joined in actions in the courts
of Mississippi. Rule 18(a) permits a party to join as many original claims, counter-claims,
cross-claims, or third-party claims as he has against an opposing party. Similarly, legal and
equitable claims or any combination of them may be joined in one action; a party may also assert
alternative claims for relief, consistency among the claims not being necessary; consequently, an
election of remedies or theories will not be required at the pleading stage of the litigation.
Rule 18(a) is intended to have its primary application during the pleading stage. Thus, the
rule should be read in conjunction with the provisions governing pleading: in essence, any claim
joined under Rule 18(a) must be set forth in accordance with Rule 8, which requires a short and
plain statement showing that the pleader is entitled to relief; if the claim involves a subject
described in Rule 9 (pleading special matters), then it may have to be delineated with more
specificity than is required by Rule 8; Rule 19(b) necessitates that claims based on different
transactions be separately stated when it would facilitate the clear presentation of the matters set
forth in the pleadings; and Rule 11 requires that every pleading be signed by the litigant's attorney
certifying that to the best of his knowledge, information, and belief there are good grounds to
support the claims advanced in the pleading.
Since Rule 18(a) deals only with the scope of joinder at the pleading stage and not with
questions of trial convenience, jurisdiction, or venue, a party should be permitted to join all the
claims he has against his opponent as a matter of right. The rule proceeds on the theory that no
inconvenience can result from the joinder of any two or more matters in the pleadings, but only
from trying two or more matters together, if at all.
64
In circuit court actions in which legal and equitable claims are asserted, the traditional
procedure has been to move to transfer the action to chancery court. However, if the action is not
transferred, the judgment will not be reversed on appeal solely because all or part of the subject
matter was technically beyond the court's jurisdiction. Rule 18(a) will effectuate no change in
this procedure. See V. Griffith, Mississippi Chancery Practice, 508-517(a) (2d ed. 1950); Miss.
Const. § 147 (no reversal on appeal if action tried in wrong court, absent any other error); § 157
(transfer of actions from circuit court to chancery court); § 162 (transfer of actions from chancery
court to circuit court). See, McLean v. Green, 352 So.2d 1312 (Miss.1977).
It must be remembered, however, that Miss. Const. § 147 does not bestow equitable
remedies upon the law courts nor does it bestow common-law remedies upon the chancery courts.
Rule 18(b) permits a party to join two claims even though if they were asserted
independently it would be necessary to prosecute one of them successfully before proceeding to
the adjudication of the other. The provision is unqualified and allows the joinder of any type of
contingent claim. The basic purpose of the rule is to reinforce the notion that a party should be
able to obtain in a single action all the relief to which he is entitled.
For discussion of Federal Rule 18, after which M.R.C.P. 18 is patterned, See 6 Wright &
Miller, Federal Practice and Procedure, Civil §§ 1581-1594 (1971); 3A Moore's Federal Practice
¶¶ 18.01-.10 (1968).
65
RULE 19. JOINDER OF PERSONS NEEDED FOR
JUST ADJUDICATION
(a) Persons to Be Joined if Feasible. A person who is subject to the jurisdiction of the
court shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical matter impair or impede his ability
to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed
interest.
If he has not been so joined, the court shall order that he be made a party. If he should join
as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary
plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described
in subdivision (a) hereof cannot be made a party, the court shall determine whether in equity and
good conscience the action should proceed among the parties before it or should be dismissed,
the absent person being thus regarded as indispensable. The factors to be considered by the court
include: First, to what extent a judgment rendered in the person's absence might be prejudicial
to him or those already parties; second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state
the names, if known to the pleader, of any persons as described in subdivision (a)(1) through (2)
who are not joined, and the reasons why they are not joined.
Comment
The purpose of Rule 19 is to permit a court to balance the rights of all persons whose
interests are involved in an action.
Compulsory joinder is an exception to the general practice of giving the plaintiff the right
to decide who shall be parties to a law suit; although a court must take cognizance of this
traditional prerogative in exercising its discretion under Rule 19, plaintiff's choice will have to
66
be compromised when significant countervailing considerations make the joinder of particular
absentees desirable.
There are at least four main questions a court must consider when deciding a question of
joinder under Rule 19: First, the plaintiff's interest in having a forum; second, the defendant's
wish to avoid multiple litigation, inconsistent relief, or sole responsibility for a liability he shares
with another; third, the interest of an outsider whom it would have been desirable to join; fourth,
the interest of the courts and the public in complete, consistent, and efficient settlement of
controversies. This list is by no means exhaustive or exclusive; pragmatism controls.
There is no precise formula for determining whether a particular nonparty must be joined
under Rule 19(a). The decision has to be made in terms of the general policies of avoiding
multiple litigation, providing the parties with complete and effective relief in a single action, and
protecting the absent persons from the possible prejudicial effect of deciding the case without
them. Account also must be taken of whether other alternatives are available to the litigants. By
its very nature Rule 19(a) calls for determinations that are heavily influenced by the facts and
circumstances of individual cases.
The structure of Rule 19 reflects the analytical sequence that a court should follow in
deciding a party joinder problem. Once an issue of compulsory joinder is raised, the court
initially must determine whether the absent person's interest in the litigation is sufficient to satisfy
one or more of the tests set out in the first sentence of Rule 19(a). When it does, the second
sentence of the subdivision states that if he has not been joined, "the court shall order that he be
made a party." If the absent person should be regarded as a plaintiff but refuses to join, the court
may join him as a defendant or, in a proper case, as an involuntary plaintiff.
Difficulties arise only if the absentee cannot be effectively joined because he is not subject
to service of process, if his joinder will deprive the court of subject matter jurisdiction, or if he
makes a valid objection to the court's venue after joinder. When joinder of someone described
in Rule 19(a) is not feasible, the court must examine the four considerations described in Rule
19(b) to determine whether the action may go forward in his absence or must be dismissed, "the
absent person being thus regarded as indispensable." By proceeding in this orderly fashion, the
court would be able to avoid grappling with the difficult question of indispensability whenever
it initially decides that the absentee's interest is not sufficient to warrant compelling his joinder.
The first joinder standard, which is described in Rule 19(a)(1), is designed to protect those who
are already parties by requiring the presence of all persons who have an interest in the litigation
so that any relief that may be awarded will effectively and completely adjudicate the dispute. The
second test set out in Rule 19 (a) relates the situations in which the action cannot be effectively
adjudicated because the absentee claims an interest in the subject matter of the action, and
disposing of the case in his absence may prejudice either those already before the court or the
67
absentee himself. See 7 Wright & Miller, Federal Practice and Procedure, Civil § 1604 (1972).
Generally, Rule 19 comports with traditional Mississippi practice; however, the rule
effectuates at least one significant modification. Under M.R.C.P. 19, a person needed for just
adjudication must be joined and may be joined as a defendant if, although properly a plaintiff,
he refuses to join the suit voluntarily. Under prior practice the suit must be dismissed if a
necessary party cannot be joined. Comment, Procedural Reform in Mississippi: A Current
Analysis, 47 Miss.L.J. 33, 5859 (1976), citing Terry v. Unknown Heirs of Gibson, 108 Miss. 749,
67 So. 209 (1915); Gates v. Union Naval Stores Co., 92 Miss. 227, 45 So. 979 (1908); Borroughs
v. Jones, 78 Miss. 235, 28 So. 944 (1900); Lemmon v. Dunn, 61 Miss. 210 (1883); See also V.
Griffith, Mississippi Chancery Practice §§ 137-150 (2d ed. 1950); 7 Wright & Miller, supra, §§
1601-1625; 3A Moore's Federal Practice ¶¶ 19.01-.20 (1974).
68
RULE 20. PERMISSIVE JOINDER OF PARTIES
(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any
right to relief jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact
common to all these persons will arise in the action. All persons may be joined in one action as
defendants if there is asserted against them jointly, severally, or in the alternative, any right to
relief in respect of or arising out of the same transaction, occurrence, or series of transactions or
occurrences, and if any question of law or fact common to all defendants will arise in the action.
A plaintiff or defendant need not be interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their respective liabilities.
(b) Separate Trials. The court may make such orders as will prevent a party from being
embarrassed, delayed, or put to expense by the inclusion of a party against whom the party
asserts no claim and who asserts no claim against the party, and may order separate trials or make
other orders to prevent delay or prejudice.
[Amended February 20, 2004 to make rule gender neutral.]
Comment
The purpose of Rule 20 is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple law suits. The rule is permissive in
character; joinder in situations falling within the rule's standard is not required unless it is within
the scope of compulsory joinder prescribed by Rule 19.
Rule 20(a) permits joinder in a single action of all persons asserting or defending against
a joint, several, or alternative right to relief that arises out of the same transaction or occurrence
or series of transactions or occurrences and presents a common question of law or fact. The
phrase “ transaction or occurrence” requires that there be a distinct litigable event linking the
parties. Rule 20(a) simply establishes a procedure under which several parties' demands arising
out of the same litigable event may be tried together, thereby avoiding the unnecessary loss of
time and money to the court and the parties that the duplicate presentation of the evidence relating
to facts common to more than one demand for relief would entail.
Joinder of parties under Rule 20(a) is not unlimited as is joinder of claims under Rule
18(a). Rule 20(a) imposes two specific requisites to the joinder of parties: (1) a right to relief
must be asserted by or against each plaintiff or defendant relating to or arising out of the same
transaction, occurrence, or the same series of transactions or occurrences ; and, (2) some question
69
of law or fact common to all the parties will arise in the action. Both of these requirements must
be satisfied in order to sustain party joinder under Rule 20(a). See American Bankers Inc. of
Florida v. Alexander, 818 So. 2d 1073, 1078. However, even if the transaction requirement
cannot be satisfied, there always is a possibility that, under the proper circumstances, separate
actions can be instituted and then consolidated for trial under Rule 42(a) if there is a question of
law or fact common to all the parties. See Fielder v. Magnolia Beverage Co. 757 So. 2d 925
(Miss. 1999) citing Stoner v. Colvin, 236 Miss. 736, 748, 110 So.2d 920, 924 (1959) (courts of
general jurisdiction have inherent power to consolidate action when called for by the
circumstances). If the criteria of Rule 20 are otherwise met, the court should consider whether
different injuries, different damages, different defensive postures and other individualized factors
will be so dissimilar as to make management of cases consolidated under Rule 20 impractical.
See Demboski v. CSX Transp., Inc. 157 F.R.D. 28 (S.D. Miss 1994.) cited with approval in
Illinois Cen. R.R. Coj. v. Travis, 808 So. 2d 928, 934 (Miss. 2002).
Rule 20(b) gives the court authority to order separate trials or make any other order to
prevent another party from being embarrassed, delayed, prejudiced, or put to unnecessary expense
by the joinder of a party against whom the party asserts no claim and who asserts no claim against
the party. Aside from emphasizing the availability of separate trials, Rule 20(b) has little
significance inasmuch as the power granted the court therein also is provided by the much
broader grant of discretion set forth in Rule 42(b). See 3A Moore's Federal Practice ¶¶ 20.01-.08
(1968); 7 Wright & Miller, Federal Practice and Procedure, Civil §§1651-1660 (1972).
In order to allow the court to make a prompt determination of whether joinder is proper,
the factual basis for joinder should be fully disclosed as early as practicable, and motions
questioning joinder should be filed, where possible, sufficiently early to avoid delays in the
proceedings.
[Comment amended February 20, 2004.]
70
RULE 21. MISJOINDER AND NONJOINDER OF PARTIES
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party or of its own initiative at any stage of the
action and on such terms as are just. Any claim against a party may be severed and proceeded
with separately.
Comment
The purpose of Rule 21 is to avoid multiple litigation and to promote liberal joinder of
parties.
Rule 21 applies, for example, when: (1) the joined parties do not meet the requisites of
Rule 20; (2) no relief has been demanded from one or more of the parties joined as defendants,
See Wherry v. Latimer, 103 Miss. 524, 529, 60 So. 563, 564 (1912) (no error when no objection
was made); (3) no claim for relief is stated against one or more of the defendants; (4) one of
several plaintiffs does not seek any relief against the defendant and is without any real interest
in the controversy, See Jackson v. Dunbar, 68 Miss. 288, 290, 10 So. 38, 40 (1890) (one of
several plaintiffs having no right of action was improperly joined but no objection having been
made there was no error where there was no recovery in favor of the one misjoined); Miss. Code
Ann. § 11-5-65 (1972) (allows for chancery decree upon the merits disregarding objection for
misjoinder at hearing); Miss. Code Ann. §§ 11-7-21, 11-7-23 (1972) (written objection to
misjoinder to be made prior to trial, plaintiff to have leave to amend).
Rules 17 and 19 should be used as reference points for what is meant by nonjoinder in
Rule 21. Thus, Rule 21 simply describes the procedural consequences of failing to join a party
as required in Rules 17 and 19, Miss. Code Ann. §§ 11-7-21, 11-7-23 (1972); Williams v. General
Insurors, Inc., 193 Miss. 276, 290, 7 So.2d 876, 878 (1942) (generally, equity court will not
proceed where necessary party has been omitted), and makes it clear that the defect can be
corrected. Accord, Soloman v. Miss. Coast Hotels, Inc., 263 So.2d 526, 527 (Miss. 1972)
(complainant is given leave to amend to add necessary party); Wiener v. Pierce, 253 Miss. 728,
732-33, 178 So.2d 869, 871 (1965) (on failure to amend, bill is dismissed, without prejudice);
Gates v. Union Naval Stores Co., 92 Miss. 227, 230, 45 So. 979, 980 (1908) (supreme court
raised issue of nonjoinder and declined to proceed until the necessary parties were joined). See
also, V. Griffith, Mississippi Chancery Practice, §§ 147-149 (2d ed. 1950); 3A Moore's Federal
Practice ¶¶ 21.01-.05 (1974); 7 Wright & Miller, Federal Practice and Procedure, Civil §§
1681-1689 (1972). M.R.C.P. 21 is identical to FRCP 21.
71
RULE 22. INTERPLEADER
(a) Plaintiff or Defendant. Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that the plaintiff is or may be
exposed to double or multiple liability. It is not ground for objection to the joinder that the claims
of the several claimants or the titles on which their claims depend do not have a common origin
or are not identical but are adverse to and independent of one another, or that the plaintiff avers
that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to
similar liability may obtain such interpleader by way of cross-claim or counter-claim. The
provisions of this rule supplement and do not in any way limit the joinder of parties permitted in
Rule 20.
(b) Release From Liability; Deposit or Delivery. Any party seeking interpleader, as
provided in subdivision (a) of this rule, may deposit with the court the amount claimed, or deliver
to the court or as otherwise directed by the court, the property claimed, and the court may
thereupon order such party discharged from liability as to such claims and the action shall
continue as between the claimants of such money or property.
Comment
The purpose of Rule 22, interpleader, is to permit a stakeholder who is uncertain if and
to whom he is liable for money or property held by him to join those who are or who might assert
claims against him and to thereby obtain a judicial determination for the proper disbursement of
the money or property. Interpleader is not new to Mississippi practice. See, e. g. Yarborough v.
Thompson, 11 Miss. 291 (1844); Anderson v. Wilkinson, 18 Miss. 601 (1848); Browning v.
Watkins, 18 Miss. 482 (1848). It is intended that Rule 22 be applied liberally.
The protection afforded by interpleader takes several forms. Most significantly, it
prevents the stakeholder from being obligated to determine at his peril which claimant has the
better claim and, when the stakeholder himself has no interest in the fund, forces the claimants
to contest what essentially is a controversy between them without embroiling the stakeholder in
the litigation over the merits of the respective claims. Even if the stakeholder denies liability,
either in whole or in part to one or more of the claimants, interpleader still protects him from the
vexation of multiple suits and the possibility of multiple liability that could result from adverse
determinations in different courts. Thus, interpleader can be employed to reach an early and
effective determination of disputed questions with a consequent saving of trouble and expense
for the parties. As is true of the other liberal joinder provisions in these rules, interpleader also
benefits the judicial system by condensing numerous potential individual actions into a single
comprehensive unit, with a resulting savings in court time and energy.
72
Interpleader also can be used to protect the claimants by bringing them together in one
action and reaching an equitable division of a limited fund. This situation frequently arises when
the insurer of an alleged tortfeasor is faced with claims aggregating more than its liability under
the policy. Were an insurance company required to await reduction of claims to judgment, the
first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a
disproportionate share of the fund before his fellow claimants were able to establish their claims.
The difficulties such a race to judgment poses for the insurer, and the unfairness which may result
to some claimants, are among the principal evils the interpleader device is intended to remedy.
See, e. g., State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (87 S. Ct. 1199, 18 L.Ed.2d 270)
(1967).
An additional advantage of interpleader to the claimant is that it normally involves a
deposit of the disputed fund or property in court, thereby eliminating much of the delay and
expense that often attends the enforcement of a money judgment.
Historically, equitable interpleader was characterized by four requirements: (1) the same
thing, debt, or duty must be claimed by both or all the parties against whom the relief is
demanded; (2) all their adverse titles or claims must be dependent on or be derived from a
common source; (3) the person asking the relief -- the plaintiff -- must not have or claim any
interest in the subject matter; (4) he must have incurred no independent liability to either of the
claimants; that is, he must stand perfectly indifferent between them, in the position of a
stakeholder. See V. Griffith, Mississippi Chancery Practice, §§ 420-426 (2d ed. 1950). It is
intended that Rule 22 be applied liberally with the view toward increasing the availability of
interpleader in eliminating historical technical restraints on the device that are not founded on
adequate policy consideration. As a result, the four historic limitations on interpleader should be
of no great significance.
The primary test for determining the propriety of interpleading the adverse claimants and
discharging the stakeholder is whether the stakeholder legitimately fears multiple vexation
directed against a single fund.
Ordinarily, interpleader is conducted in two "stages." In the first, the court hears evidence
to determine whether the plaintiff is entitled to interplead the defendants. In the second stage,
a determination is made on the merits of the adverse claims and, if appropriate, on the rights of
an interested stakeholder.
After the stakeholder has paid the disputed fund into court, or given bond therefor, and
the claimants have had notice and an opportunity to be heard, the court determines whether the
stakeholder is entitled to interpleader relief. If so, the court will enter an order requiring the
claimants to interplead and, if the stakeholder is disinterested, discharging the stakeholder from
73
the proceeding and from further liability with regard to the interpleader fund. The court may also
permanently enjoin the claimants from further harassing the stakeholder with claims or judicial
proceedings. This first stage may be concluded upon motion by either the stakeholder or one of
the claimants for summary judgment or judgment on the pleadings, just as in any other action.
In any event, since the determination of the propriety of interpleader turns upon an examination
of compliance with the prerequisites of the rule, issues raised at the first stage are clearly for the
court to determine.
Generally, the claimants will have asserted their claims to the interpleader fund in their
answer to the stakeholder's complaint. If an order of interpleader is entered, each claimant must
then traverse the claims of the other claimants, thus joining issue. Alternatively, if the issues are
already clearly defined in the claimants' initial pleadings, further pleadings may be unnecessary.
After issue has been joined between the claimants, or among the claimants and the
interested stakeholder, the court will proceed as in any other civil case. Summary judgment may
be granted in favor of one of the claimants against any other, even before the former serves an
answer to the latter's pleading, a procedure generally appropriate under Rule 56(b). In most
cases, however, the issues at the second stage will be determined by a trial, and the manner of
trial will necessarily depend upon the state of the pleadings at that time; the court is to decide,
"by such method as Seems most suited to the particular case, " which claimants are to prevail and
to what extent.
There is, however, no inflexible rule that the proceeding must be divided into two stages.
The entire action may be disposed of at one time in cases where, for example, the stakeholder has
not moved to be discharged or has remained in the action by reason of an interest therein. There
may even be a third stage, in the event that the second stage determination leaves unresolved
some further dispute, either between the stakeholder and the prevailing claimant or among the
prevailing claimants.
Trial during stages later than the first is also appropriate for counter-claims raised by the
claimants, such as those alleging an independent liability, and for cross-claims between claimants
which are held appropriate for resolution in the course of the interpleader proceedings. See 3A
Moore's Federal Practice ¶¶22.01-.16; (2d. ed. 1992); 7 Wright, Miller & Kane, Federal Practice
and Procedure Civil §§1701 et seq. (1986); Miss Code Ann. §§ 11-35-41, -43 (statutory
interpleader by garnishee; 75-7-603 (statutory interpleader by bailee) (1972).
[Amended April 18, 1995.]
74
RULE 23. [CLASS ACTIONS] [OMITTED]
RULE 23.1 [DERIVATIVE ACTIONS BY
SHAREHOLDERS] [OMITTED]
RULE 23.2 [ACTIONS RELATING TO UNINCORPORATED
ASSOCIATIONS] [OMITTED]
Comment
Class action practice is not being introduced into Mississippi trial courts at this time.
Few procedural devices have been the subject of more widespread criticism and more
sustained attack -- and equally spirited defense -- than practice under Federal Rule 23 and its state
counterparts. The dissatisfaction focuses primarily on Rule 23(b)(3), which permits suits on the
part of persons whose only connection is that one or more common issues characterize their
position in relation to an adverse party.
In 1976 the American Bar Association, the Conference of Chief Justices, and the Judicial
Conference of the United States jointly sponsored the National Conference on the Causes of
Popular Dissatisfaction with the Administration of Justice. Class action practice was one of the
topics considered by the National Conference (often referred to as the "Pound Conference," in
deference to Roscoe Pound and his landmark address in 1906 entitled "The Causes of Popular
Dissatisfaction with the Administration of Justice") and referred to the ABA for follow-up study
and action.
Aside from general proposals to provide jurisdictional "floors" and "ceilings" to regulate
the size of class actions, greater judicial control over awards of attorneys' fees, and replacing the
"opt-out" provisions with "opt-in" requirements, no meaningful reforms have as yet been
developed to render class action practice a more manageable tool. See American Bar
Association, Report of Pound Conference Follow-up Task Force, 74 F.R.D. 159, 194-97 (1976);
Erickson, New Directions in the Administration of Justice: Responses to the Pound Conference,
64 A.B.A.J. 48, 52, 56 (1978); Schuck and Cohen, The Consumer Class Action: An Endangered
Species, 12 San Diego L.Rev. 39 (1974); Comment, Class Actions and the Need for Legislative
Reappraisal, 50 Notre Dame Law. 285 (1974); Comment, The Federal Courts Take a New Look
at Class Actions, 27 Baylor L. Rev. 751 (1975); Dam, Class Actions: Efficiency, Compensation,
Deterrence, and Conflict of Interest, 4 J. Legal Studies 47, 56-61 (1975).
75
RULE 24. INTERVENTION
(a) Intervention of Right. Upon timely application, anyone shall be permitted to
intervene in an action:
(1) when a statute confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the property or transaction which is
the subject of the action and he is so situated that the disposition of the action may as a practical
matter impair or impede his ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to
intervene in an action:
(1) when a statute confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the main action have a question of law or fact
in common.
When a party to an action relies for ground of claim or defense upon any statute or
executive order administered by a federal or state governmental officer or agency, or upon any
regulation, order, requirement, or agreement issued or made pursuant to the statute or executive
order, the officer or agency upon timely application may be permitted to intervene in the action.
In exercising its discretion the court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the
parties as provided in Rule 5. The motion shall state the grounds therefor and shall be
accompanied by a pleading setting forth the claim or defense for which intervention is sought.
The same procedure shall be followed when a statute gives a right to intervene.
(d) Intervention by the State. In any action (1) to restrain or enjoin the enforcement,
operation, or execution of any statute of the State of Mississippi by restraining or enjoining the
action of any officer of the State or any political subdivision thereof, or the action of any agency,
board, or commission acting under state law, in which a claim is asserted that the statute under
which the action sought to be restrained or enjoined is to be taken is unconstitutional, or (2) for
declaratory relief brought pursuant to Rule 57 in which a declaration or adjudication of the
unconstitutionality of any statute of the State of Mississippi is among the relief requested, the
party asserting the unconstitutionality of the statute shall notify the Attorney General of the State
76
of Mississippi within such time as to afford him an opportunity to intervene and argue the
question of constitutionality.
Comment
Rule 24, Intervention, concludes these rules' treatment of parties to civil actions: Rule 19
details who must be joined; Rule 20 details who may be joined; Rule 24 governs the rights of a
stranger to the action who desires to be joined.
It has long been the law in Mississippi that a total stranger cannot interfere with the objects
and purposes of a civil suit as between the original parties. Nevertheless, when it has happened
that an owner or part owner has a claim or interest in property which is the subject of a pending
action and which may be materially affected by the outcome of the litigation, he has been allowed
to intervene to protect his interests; this is referred to as equitable intervention. See V. Griffith,
Mississippi Chancery Practice, §§ 410, 411 (2d ed. 1950), quoted in Edwards v. Harper, 321
So.2d 301 (Miss.1975).
Additionally, intervention has been allowed when specifically permitted by statute;
statutory intervention appears to have been the only form of intervention available in courts of
law. See, e. g., Miss. Code Ann. § 11-33-101 (other creditors may intervene in attachment action
instituted against a debtor); §§ 31-5-1 and -9 (in action on bond of contractor for Public Works
Contracts materialmen and laborers may intervene); § 53-3-19 (in forfeiture and sale of oil and
gas products seized as contraband, persons adversely affected thereby may intervene); § 71-3-71
(workmen's compensation employer or insurer entitled to intervene in action by employee against
third party); and § 75-31-335 (1972) (any person damaged may intervene in injunction action
pertaining to violation of Mississippi Milk Products Sale Law); City of Biloxi v. Gully, 187 Miss.
664, 193 So. 786 (1940).
M.R.C.P. 24 undertakes to continue to distinguish between two kinds of intervention:
24(a) pertains to Intervention of Right and provides that an applicant "shall be permitted to
intervene" if he satisfies the tests of that portion of the rule; 24(b), however, is labeled Permissive
Intervention and prescribes conditions under which an applicant "may be permitted to intervene"
in an action.
If a statute of Mississippi grants a right to intervene, intervention is absolute or permissive
depending on whether the statute creates an unconditional or conditional right. Other than this,
intervention is said to be of right under 24(a)(2) when the applicant claims an interest relating to
the property or transaction that is the subject of the action and he is so situated that the disposition
of the action as a practical matter may impair or impede his ability to protect that interest, unless
his interest is adequately represented by existing parties. An applicant who does not meet the test
77
of 24(a) may be permitted to intervene under 24(b)(2) if his claim or defense and the main action
have a question of law or fact in common. 7A Wright & Miller, Federal Practice and Procedure,
Civil § 1902 (1972).
So viewed, it is apparent that Rule 24 is, in practical effect, substantially the equivalent
of traditional Mississippi practice in the area of intervention: 24(a)(1) and (b)(1) conform
generally to traditional statutory intervention, and 24(a)(2) and (b)(2) follow equitable
intervention practices. However, the rule gives law courts intervention powers formerly accorded
only to courts of equity.
Whether a particular application to intervene falls under 24(a) or 24(b) makes at least one
important difference: An application for permissive intervention is addressed to the discretion
of the court, whereas an application for intervention of right poses only a question of law. 7A
Wright & Miller, supra.
Intervention pursuant to 24(a) and (b) both require that the application be "timely." The
requirement of timeliness is not of fixed meaning and provides an opportunity (even under 24(a))
for the court to take some account of the practical situation and the effect on those already parties
and on the economical disposition of judicial business by allowing intervention. Rule 24(a)
represents a judgment that in the situation there described justice demands that the interest of the
absentee should predominate over the interests of the original parties and of trial convenience,
but if the absentee has failed to move promptly to protect his interest he may find himself denied
relief. 7A Wright & Miller, supra. Rule 24(d) allows the State of Mississippi to intervene in any
civil action wherein a major element of controversy pertains to the constitutionality of a state
statute. The purpose of this provision is to protect the public's interest in the result of an action
that may have far-reaching statewide implications. Notice to the Attorney General is mandatory
even if the court thinks the constitutional question frivolous, but failure to give the notice does
not deprive the court of jurisdiction to decide the case. Rule 24(d) was patterned after the
following similar rules from other jurisdictions: Alabama Rules of Civil Procedure, R. 24(b);
Maine Rules of Civil Procedure, R. 24(d); Minnesota Rules of Civil Procedure, R. 24.04;
Tennessee Rules of Civil Procedure, R. 24.04; Federal Rules of Civil Procedure, R. 24(c).
Rule 24(d) allows the State of Mississippi to intervene in any civil action wherein a major
element of controversy pertains to the constitutionality of a state statute. The purpose of this
provision is to protect the public's interest in the result of an action that may have far-reaching
statewide implications. Notice to the Attorney General is mandatory even if the court thinks the
constitutional question frivolous, but failure to give the notice does not deprive the court of
jurisdiction to decide the case. Rule 24(d) was patterned after the following similar rules from
other jurisdictions: Alabama Rules of Civil Procedure, R. 24(b); Maine Rules of Civil Procedure,
R. 24(d); Minnesota Rules of Civil Procedure, R. 24.04; Tennessee Rules of Civil Procedure, R.
78
24.04; Federal Rules of Civil Procedure, R. 24(c). See State v. Watkins, 676 So. 2d 247 (Miss.
1996).
[Amended March 22,2001.]
79
RULE 25. SUBSTITUTION OF PARTIES
(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the court shall, upon motion,
order substitution of the proper parties. The motion for substitution may be made by any party
or by the successors or representatives of the deceased party and, together with the notice of
hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the
manner provided in Rule 4 for the service of summons. The action shall be dismissed without
prejudice as to the deceased party if the motion for substitution is not made within ninety days
after the death is suggested upon the record by service of a statement of the fact of the death as
herein provided for the service of the motion.
(2) In the event of the death of one or more of the plaintiffs or of one or more of the
defendants in an action in which the right sought to be enforced survives only to the surviving
plaintiff or only against the surviving defendants, the action does not abate. The death shall be
suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b) Legal Disability. If a party comes under a legal disability the court upon motion
served as provided in subdivision (a) of this rule may allow the action to be continued by or
against his representative.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued
by or against the original party, unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined with the original party. Service of
the motion shall be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation From Office. When a public officer is a party
to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action does not abate and his successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of the party, but any misnomer not
affecting the substantial rights of the parties shall be disregarded. An order of substitution may
be entered at any time, but the omission to enter such an order shall not affect the substitution.
Comment
Prior Mississippi practice provided two methods for the substitution of deceased parties
or for public officers who died in office or were separated from their office: motion to revive,
and bill of revivor. See Miss. Code Ann. §§ 11-7-25 through -31 (1972). Normally, under the
statutes the suggestion of death of a party plaintiff would be filed by the defendant; if the
80
successors to the plaintiff did not appear, the suit could be dismissed. Smith v. Pattison, 45 Miss.
619 (1871). If the successors desired to enter the suit, it was only necessary for them to file a
motion to revive, supported by affidavits reciting the facts of plaintiff's death and their
appointment as plaintiff's legal representatives. Notice of the motion to revive was not required
because the defendants were considered to be before the forum and were deemed to have taken
notice of the statutory proceedings suggesting death and revival. Mitchell v. Conner, 42 Miss.
550 (1869); Criscoe v. Adams, 123 Miss. 37, 85 So. 119 (1920). Essentially, the same procedure
was followed in the event of the defendant's death, but notice of the motion of revival was
required to be served. Smith v. Hargraves, 114 Miss. 687, 75 So. 545 (1917). In the event the
rights or liabilities of the survivors became litigious -- such as in a dispute as to who the true heirs
were, or where interests under a will or trust were contested -- a bill of revivor could have been
resorted to. Proceedings on a bill of revivor were conducted as an original action designed to
resolve the litigated issues. Sovereign Camp, W. O. W. v. Durr, 186 Miss. 850, 192 So. 45
(1939). See V. Griffith, Mississippi Chancery Practice, §§ 416-419 (2d ed. 1950).
M.R.C.P. 25 provides, in four subsections, for the substitution of parties in the event of
death, incompetency, transfer of interest, or public officers' succession in office. Rule 25 is
inapplicable if substitution is sought for any reason other than one of these four circumstances,
in which case resort must be to Rules 17 (real party in interest), 21 (adding or dropping parties),
or 24 (intervention).
Rule 25 presupposes that substitution is for someone who was already a party to a pending
action; substitution is not possible if one who was named as a party in fact died before the
commencement of the action. See Misukami v. Buras, 419 F.2d 1319 (5th Cir. 1969). Similarly,
if one named in a filed complaint dies, becomes incompetent, vacates office, or transfers his
interest before he is served with process, substitution is available but process must be served on
the new party to acquire in personam jurisdiction. See Ransom v. Brennan, 437 F.2d 513 (5th
Cir. 1971).
As the rule states, the action will be dismissed without prejudice if a motion for
substitution is not made within ninety days of the suggestion of death on the record. The
suggestion of death must be in writing and must be served on parties in accordance with Rule 5
and upon persons not parties as provided in Rule 4 for the service of a summons. The general
provisions of M.R.C.P. 6(b) apply to motions to substitute; accordingly, the court may extend the
period for substitution if timely requested. Similarly, the court may allow substitution to be made
after the expiration of the ninety-day period on a showing that the failure to act earlier was the
result of excusable neglect. M.R.C.P. 6(b)(2). See 7A Wright & Miller, Federal Practice and
Procedure, Civil §§ 1951, 1955 (1972).
Objection to substitution may be made either by the representative of the decedent or by
81
any other party, since the presence or absence of a party may affect the rights of other parties.
The court should not resolve the merits of the controversy in passing on the motion for
substitution. 7A Wright and Miller, supra, § 1956.
The procedure for substitution after a party becomes incompetent is the same as for
substitution after death. M.R.C.P. 25(b).
M.R.C.P. 25(c) applies to transfers, assignments, and corporate mergers and dissolutions.
See Miss. Code Ann. §§ 79-3-151 (effect of merger or consolidation); 79-3-183(e) (articles of
dissolution); and 79-3-209 (1972) (survival of remedy after dissolution, suspension or failure).
The most significant feature of Rule 25(c) is that it does not require that any action be
taken after an interest has been transferred; the action may be continued by or against the original
party and the judgment will be binding on his successor in interest even though he is not named.
An order of joinder in such a situation is merely a discretionary determination by the trial court
that the transferee's presence would facilitate the conduct of the litigation. Since Rule 25(c) is
wholly permissive there is no time limit on moving to substitute under its provisions. The motion
for substitution may be made by any party. The rule incorporates by reference the provisions of
Rule 25(a) on service of the motion. Thus, the motion, with notice of the hearing, may be served
on the existing parties in accordance with Rule 5 but must be served on persons who are not
already parties as provided in Rule 4 for service of process. 7A Wright & Miller, supra § 1958.
See Miss. Code Ann. § 11-7-3 (1972) (assignee of chose in action may sue).
M.R.C.P. 25(d) applies only when the public official is sued "in his official capacity." In
those situations in which the public official's personal assets may be subject to execution after
judgment, Rule 25(a) governs his substitution in the event of death. Subsection (d)(2) of Federal
Rule 25, after which this Mississippi rule was patterned, appears as M.R.C.P. 17(e), since the
latter provision pertains more to capacities and interests of parties than to substitution of parties.
82
CHAPTER V. DEPOSITIONS AND DISCOVERY
RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the following
methods: depositions upon oral examination or written questions; written interrogatories;
production of documents or things or permission to enter upon land or other property, for
inspection and other purposes; and requests for admission. Unless the court orders otherwise
under subdivisions (c) or (d) of this rule, the frequency of use of these methods is not limited.
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with
these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the issues raised by the claims or defenses of any party. The discovery may include
the existence, description, nature, custody, condition and location of any books, documents,
electronic or magnetic data, or other tangible things; and the identity and location of persons (i)
having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial.
It is not ground for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible
evidence.
(2) Insurance Agreements. A party may obtain discovery of the existence and contents of
any insurance agreement under which any person carrying on an insurance business may be liable
to satisfy part or all of a judgment which may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. Information concerning the insurance
agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this
paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this
rule, a party may obtain discovery of documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative (including that party’s attorney,
consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of that party’s case and that the
party is unable without undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required showing has been made,
the court shall protect against disclosure of the mental impressions, conclusions, opinions, or
83
legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its
subject matter previously made by that party. Upon request, a person not a party may obtain
without the required showing a statement concerning the action or its subject matter previously
made by that person. If the request is refused, the person may move for a court order. Rule
37(a)(4) applies to the award of expenses incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is: (A) a written statement signed or otherwise adopted
or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement
by the person making it and contemporaneously recorded.
(4) Trial Preparations: Experts. Discovery of facts known and opinions held by experts,
otherwise discoverable under subsection (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(A)
(i) A party may through interrogatories require any other party to identify each
person whom the other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to testify and a summary
of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery by other means, subject
to such restrictions as to scope and such provisions, pursuant to subsection
(b)(4)(C) of this rule, concerning fees and expenses, as the court may deem
appropriate.
(B) A party may discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation or preparation
for trial and who is not expected to be called as a witness at trial only upon a showing of
exceptional circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking
discovery pay the expert a reasonable fee for time spent in responding to discovery under
subsections (b)(4)(A)(ii) and (b)(4)(B) of this rule, and (ii) with respect to discovery
obtained under subsection (b)(4)(A)(ii) of this rule, the court may require, and with respect
to discovery obtained under subsection (b)(4)(B) of this rule, the court shall require, the
party seeking discovery to pay the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and opinions from the expert.
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(5) Electronic Data. To obtain discovery of data or information that exists in
electronic or magnetic form, the requesting party must specifically request production of
electronic or magnetic data and specify the form in which the requesting party wants it
produced. The responding party must produce the electronic or magnetic data that is
responsive to the request and is reasonably available to the responding party in its ordinary
course of business. If the responding party cannot–through reasonable efforts–retrieve the
data or information requested or produce it in the form requested, the responding party
must state an objection complying with these rules. If the court orders the responding
party to comply with the request, the court may also order that the requesting party pay the
reasonable expenses of any extraordinary steps required to retrieve and produce the
information.
(c) Discovery Conference. At any time after the commencement of the action, the court
may hold a conference on the subject of discovery, and shall do so if requested by any party. The
request for discovery conference shall certify that counsel has conferred, or made reasonable
effort to confer, with opposing counsel concerning the matters set forth in the request, and shall
include:
1. a statement of the issues to be tried;
2. a plan and schedule of discovery;
3. limitations to be placed on discovery, if any; and
4. other proposed orders with respect to discovery.
Any objections or additions to the items contained in the request shall be served and filed
no later than ten days after service of the request.
Following the discovery conference, the court shall enter an order fixing the issues;
establishing a plan and schedule of discovery; setting limitations upon discovery, if any; and
determining such other matters, including the allocation of expenses, as are necessary for the
proper management of discovery in the case.
Subject to the right of a party who properly moves for a discovery conference to prompt
convening of the conference, the court may combine the discovery conference with a pretrial
conference authorized by Rule 16.
The court may impose sanctions for the failure of a party or counsel without good cause
to have cooperated in the framing of an appropriate discovery plan by agreement. Upon a
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showing of good cause, any order entered pursuant to this subdivision may be altered or amended.
(d) Protective Orders. Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action is pending, or in the case of
a deposition the court that issued a subpoena therefor, may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a
designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected
by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited
to certain matters;
(5) that discovery be conducted with no one present except persons designated by the
court;
(6) that a deposition after being sealed to be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court;
(9) the court may make any other order which justice requires to protect the party or
witness from annoyance, embarrassment, oppression or undue burden or expense, including
provision for payment of expenses attendant upon such deposition or other discovery device by
the party seeking same.
If the motion for a protective order is denied in whole or in part, the court may, on such
terms and conditions as are just, order that any party or person provide or permit discovery. Rule
37(a)(4) applies to the award of expenses incurred in relation to the motion.
(e) Sequence and Timing of Discovery.
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Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of justice, orders otherwise, methods
of discovery may be used in any sequence and the fact that a party is conducting discovery,
whether by deposition or otherwise, shall not operate to delay any other party's discovery.
(f) Supplementation of Responses. A party who has responded to a request for discovery
with a response that was complete when made is under no duty to supplement the response to
include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement that party’s response with respect to
any question directly addressed to (A) the identity and location of persons (i) having knowledge
of discoverable matters, or (ii) who may be called as witnesses at the trial, and (B) the identity
of each person expected to be called as an expert witness at trial, the subject matter on which the
person is expected to testify, and the substance of the testimony.
(2) A party is under a duty seasonably to amend a prior response if that party obtains
information upon the basis of which (A) the party knows that the response was incorrect when
made, or (B) the party knows that the response, though correct when made, is no longer true and
the circumstances are such that a failure to amend the response is in substance a knowing
concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of
the parties, or at any time prior to trial through new requests for supplementation of prior
responses.
[Amended effective March 1, 1989; March 13, 1991; April 13, 2000. Amended effective May
29, 2003 to add Rule 26(5) addressing discovery of electronic data.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 26(c) was amended to allow the court on its own motion
to convene a discovery conference, 753-754 So. 2d XVII (West Miss.Cas. 2000).
Effective March 13, 1991, Rule 26(b)(1)(ii) was amended to delete the oral testimony of
witnesses from the listing of matter that might be discovered by a party. Rule 26(d) was amended
to provide that in the case of depositions protective orders might be made by the court that issued
a subpoena therefor. 574-576 So. 2d XXIII (West Miss. Cas. 1991).
Effective March 1, 1989, Rule 26(b)(1) and Rule 26(f)(1) were amended to provide for
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the identification of (and supplementation of the prior identification of) those, in addition to
experts, who may be called as witnesses at the trial. 536-538 So. 2d XXIV (West Miss. Cas.
1989).
Comment
With two important exceptions MRCP 26 is identical to Miss. Code Ann. § 13-1-266
(1972); subdivision 26(b)(1) narrows the scope of permissible discovery, although it does permit
the discovery of the identity and location of persons who may be called as witnesses at the trial;
a new subdivision (c) is added and the original subdivisions are renumbered accordingly.
Sweeping and abusive discovery is encouraged by permitting discovery confined only by
the "subject matter" of a case -- the language of Miss. Code Ann. § 13-1-226(b) (1972) -- rather
than limiting it to the issues presented. Discovery should be limited to the specific practices or
acts that are in issue. Determining when discovery spills beyond "issues" and into "subject
matter" will not always be easy, but M.R.C.P. 26(b)(1) is intended to favor limitations, rather
than expansions, on permissible discovery. Accordingly, "admissible evidence" referred to in the
last sentence of 26(b)(1) must be limited by the new relevancy which emerges from the term
"issues, " rather than from the more sweeping term "subject matter."
Rule 26(b) was amended effective May 29, 2003, adding subsection (5) to make specific
provision for discovery of data and information existing in electronic and magnetic form.
Recognizing that special problems may exist in the retrieval of such data, the rule limits the duty
to that of production of electronic and magnetic data to that which is reasonably available to the
responding party in its ordinary course of business. Further, if extraordinary steps are required
to retrieve and produce the information, the court may require the requesting party to pay the
expense of those steps, in addition to costs which may be assessed under Rule 26(d)(9). The
production of data compilations which are subject to production under Rule 34 is also subject to
the limitations of Rule 26(b)(5).
Rule 26(c) establishes a discovery conference convened on the court's own motion or at
the request of any party. This conference is a corollary to the limitation on the scope of discovery
dictated by Rule 26(b)(1). Whether the conference is convened on the court's own motion or
upon a litigant's certified request, the court has control over the time of its convening and the
scope of its reach.
Rule 26(c) provides the procedure for early judicial control but continues to impose
principal responsibility upon the litigating bar for the preparation of a case. In the great majority
of cases, opposing counsel should be able, without judicial intervention, to formulate an
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appropriate plan and schedule of discovery in relation to issues readily defined by agreement.
In those instances, however, where it would facilitate the discovery process, the court may hold
a discovery conference on its own motion or upon the request of either party.
The discovery conference will produce an order defining: (a) a "plan" in which the types
and subjects of discovery are set forth, e. g., oral depositions of A, B and C; production of
contracts and any letters, correspondence or memoranda explaining or modifying them, etc.; (b)
a "schedule" for discovery which specifies the time and place for discovery events, e. g., the dates
and places for the taking of depositions of A, B and C, or the time within which documents are
to be produced, and (c) such "limitations" as might otherwise be employed in protective orders,
e. g., the documents of C shall be disclosed only to B's lawyers.
The rule also provides for "allocation of expenses." This provision would permit courts,
as justice dictates, to reassign the usual financial burdens of discovery. For example, a court
might condition discovery demanded by party A upon the payment by A of all or part of party B's
expenses, including attorneys' fees.
An early accord or order on discovery may require later modification. Rule 26(c) allows
such amendments freely. Again, cooperation among counsel should be the rule rather than the
exception.
[Comment amended effective March 1, 1989; April 13, 2000. Comment amended effective May
29, 2003.]
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RULE 27. DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of this state may file a verified
petition in the circuit or chancery court in the county of the residence of any expected adverse
party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the
petitioner expects to be a party to an action cognizable in a court of this state but is presently
unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his
interest therein, (3) the facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it, (4) the names or a description of the persons he expects will
be adverse parties and their addresses so far as known, and (5) the names and addresses of the
persons to be examined and the substance of the testimony which he expects to elicit from each,
and shall ask for an order authorizing the petitioner to take the depositions of the persons to be
examined named in the petition, for the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person
named in the petition as an expected adverse party, stating that the petitioner will apply to the
court, at a time and place named therein, for the order described in the petition. At least twenty
days before the date of hearing the notice shall be served in the same manner for service of
summons; but if such service cannot with due diligence be made upon any expected adverse party
named in the petition, the court may make such order as is just for service by publication or
otherwise, and shall appoint, for persons not served in the manner provided by law, an attorney
who shall represent them, and, in case they are not otherwise represented, shall cross-examine
the deponent.
(3) Order and Examination. If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order designating or
describing the persons whose depositions may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral examination or written
interrogatories. The depositions may then be taken in accordance with these rules; and the court
may make orders of the character provided for by Rule 34. For the purpose of applying these
rules to depositions for perpetuating testimony, each reference therein to the court in which the
action is pending shall be deemed to refer to the court in which the petition for such deposition
was filed.
(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules,
it may be used in any action involving the same subject matter subsequently brought in a circuit,
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chancery or county court in accordance with Rule 32(a).
(b) Pending Appeal. If an appeal has been taken from a judgment of a court, or before
the taking of an appeal if the time therefor has not expired, the court in which the judgment was
rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings in the court. In such case the party who desires to
perpetuate the testimony may make a motion in the court for leave to take the depositions, upon
the same notice and service thereof as if the action were pending in the court. The motion shall
show (1) the names and addresses of persons to be examined and the substance of the testimony
which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court
finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may
make an order allowing the depositions to be taken and may make orders of the character
provided for by Rule 34, and thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these rules for depositions taken in
actions pending in the court.
(c) Perpetuation by Action. This rule does not limit the power of a court to entertain an
action to perpetuate testimony.
Comment
Miss. Code Ann. § 13-1-243 (1972) has been included as subdivision (d) of M.R.C.P. 27;
otherwise, Rule 27 is identical to Miss. Code Ann. § 13-1-227 (1972). See Pyle, Ott, Rumfelt,
Mississippi Rules of Discovery, 46 Miss.L.J. 681, 699-709 (1975).
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RULE 28. PERSONS BEFORE WHOM
DEPOSITIONS MAY BE TAKEN
(a) Within the United States. Within the United States or within a territory or insular
possession subject to the dominion of the United States, depositions shall be initiated by an oath
or affirmation administered to the deponent by an officer authorized to administer oaths by the
laws of the United States or of the place where the examination is held, or by a person specially
appointed by the court in which the action is pending.
(b) In Foreign Countries. In a foreign country, depositions may be taken: (1) on notice
before a person authorized to administer oaths in the place in which the examination is held,
either by the law thereof or by the law of the United States, or (2) before a person commissioned
by the court, and a person so commissioned shall have the power by virtue of his commission to
administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A
commission or a letter rogatory shall be issued on application and notice and on terms that are
just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that
the taking of the deposition in any other manner is impracticable or inconvenient; and both a
commission and a letter rogatory may be issued in proper cases. A notice or commission may
designate the person before whom the deposition is to be taken either by name or descriptive title.
A letter rogatory may be addressed To the Appropriate Authority in (here name the country).
Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that
it is not a verbatim transcript or that the testimony was not taken under oath or for any similar
departure from the requirements for depositions taken within the United States under these rules.
(c) Disqualification for Interest. No deposition shall be taken before a person who is a
relative or employee or attorney or counsel of any of the parties, or is a relative or employee of
such attorney or counsel, or is financially interested in the action.
Comment
Except for important modifications in M.R.C.P. 28(a), this rule is identical to Miss. Code
Ann. § 13-1-228 (1972); the modifications in 28(a) are necessitated by new provisions in
M.R.C.P. 30 which provide for the taking of testimony by telephone and for recording testimony
by other than stenographic methods. M.R.C.P. 28(a) dispenses with the requirement that an
officer authorized to administer oaths be present during an entire deposition, it is sufficient under
the rule if the deposition is begun with the administration of the oath or affirmation.
Even in those cases where the deposition is taken by a stenographer, if the administrator
of the oath or affirmation is different from the stenographer, there is no reason for the former to
remain in attendance during the taking of the deposition. The rule retains the power of the court
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to appoint specially a person capable of administering the oath which initiates the deposition. See, Special Committee for the Study of Discovery Abuse, Section of Litigation, A.B.A., Report,
at 7, 8 (1977); also, Pyle, Ott, Rumfelt, Mississippi Rules of Discovery, 46 Miss.L.J. 681, 709-14
(1975).
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RULE 29. STIPULATIONS REGARDING
DISCOVERY PROCEDURE
Unless the court orders otherwise, the parties may by written stipulation (1) provide that
depositions may be taken before any person, at any time or place, upon any notice, and in any
manner and when so taken may be used like other depositions, and (2) modify the procedures
provided by these rules for other methods of discovery, except that stipulations extending the
time provided in Rules 33, 34 and 36 for responses to discovery may be made only with the
approval of the court.
Comment
Rule 29 is identical to Miss. Code Ann. § 13-1-229 (1972). See Pyle, Ott, Rumfelt,
Mississippi Rules of Discovery, 46 Miss.L.J. 681, 714-15 (1975).
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RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After commencement of the action, any party
may take the testimony of any person, including a party, by deposition upon oral examination.
Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take
a deposition prior to the expiration of thirty days after service of the summons upon any
defendant, except that leave is not required (1) if a defendant has served a notice of taking
deposition or otherwise sought discovery, or (2) if special notice is given under subsection (b)(2)
of this rule. The attendance of witnesses may be compelled by subpoena. The deposition of a
person confined in prison may be taken only by leave of court on such terms as the court
prescribes.
(b) Notice of Examination: General Requirements; Special Notice; Non-Stenographic
Recording; Production of Documents and Things; Deposition of Organization.
(1) A party desiring to take the deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the action. The notice shall state the time and
place for taking the deposition and the name and address of each person to be examined, if
known, and, if the name is not known, a general description sufficient to identify him or the
particular class or group to which he belongs. If a subpoena duces tecum is to be served on the
person to be examined, the designation of the materials to be produced as set forth in the
subpoena shall be attached to or included in the notice. A notice may provide for the taking of
testimony by telephone. If necessary, however, to assure a full right of examination of any
deponent, the court in which the action is pending may, on motion of any party, require that the
deposition be taken in the presence of the deponent.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice:
(A) states that the person to be examined is about to go out of the state and will be unavailable
for examination unless his deposition is taken before expiration of the thirty-day period, and (B)
sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his
signature constitutes a certification by him that to the best of his knowledge, information, and
belief the statement and supporting facts are true.
If a party shows that when he was served with notice under this subsection (b)(2) he was
unable through the exercise of diligence to obtain counsel to represent him at the taking of the
deposition, the deposition may not be used against him.
(3) The court may for cause shown enlarge or shorten the time for taking the deposition.
(4) The notice of deposition required under (1) of this subsection (b) may provide that the
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testimony be recorded by other than stenographic means, in which event the notice shall designate
the manner of recording and preserving the deposition. A court may require that the deposition
be taken by stenographic means if necessary to assure that the recording be accurate. A motion
by a party for such an order shall be addressed to the court in which the action in pending; a
motion by a witness for such an order may be addressed to the court in the district where the
deposition is taken.
(5) The notice to a party deponent may be accompanied by a request made in compliance
with Rule 34 for the production of documents and tangible things at the taking of the deposition.
The procedure of Rule 34 shall apply to the request.
(6) A party may in his notice and in a subpoena name as the deponent a public or private
corporation or a partnership or association or governmental agency and describe with reasonable
particularity the matters on which examination is requested. In that event, the organization so
named shall designate one or more officers, directors, or managing agents, or other persons who
consent to testify on its behalf, and may set forth, for each person designated, the matters on
which he will testify. A subpoena shall advise a non-party organization of its duty to make such
a designation. The persons so designated shall testify as to matters known or reasonably available
to the organization. This subsection (b)(6) does not preclude taking a deposition by any other
procedure authorized in these rules.
(7) For purposes of this Rule, and Rules 28(a), 37(a)(1), 37(b)(1), and 45(b), a deposition
shall be deemed to be taken in the county where the deponent is physically present to answer
questions propounded to him.
(c) Examination and Cross-Examination; Record of Examination; Objections.
Examination and cross-examination of witnesses may proceed as permitted at the trial. The
testimony of the witness shall be recorded either stenographically or as provided in subsection
(b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed upon the
payment of the reasonable charges therefor. All objections made at the time of the examination
to the qualifications of the person taking the deposition, or to the manner of taking it, or to the
evidence presented, or to the conduct of any party, and any other objection to the proceedings,
shall be noted upon the transcription or recording. Evidence objected to shall be taken subject
to the objections. In lieu of participating in the oral examination, parties may serve written
questions on the party taking the deposition, who shall propound them to the witness and See that
the answers thereto are recorded verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the
deposition, on motion of a party or of the deponent and upon a showing that the examination is
being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress
96
the deponent or party, the court in which the action is pending may order the officer conducting
the examination to cease forthwith from taking the deposition or may limit the scope and manner
of the taking of the deposition as provided in Rule 26(d). If the order made terminates the
examination, it shall be resumed thereafter only upon the order of the court in which the action
is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall
be suspended for the time necessary to make a motion for an order. Rule 37(a)(4) applies to the
award of expenses incurred in relation to the motion.
(e) Submission to Witness; Changes; Signing. When the testimony is taken by
stenographic means, or is recorded by other than stenographic means as provided in subsection
(b)(4) of this rule, and if the transcription or recording thereof is to be used at any proceeding in
the action, such transcription or recording shall be submitted to the witness for examination,
unless such examination is waived by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered upon the transcription or stated in
a writing to accompany the recording, together with a statement of the reasons given by the
witness for making them. Notice of such changes and reasons shall promptly be served upon all
parties by the party taking the deposition. The transcription or recording shall then be affirmed
in writing as correct by the witness, unless the parties by stipulation waive the affirmation. If the
transcription or recording is not affirmed as correct by the witness within thirty days of its
submission to him, the reasons for the refusal shall be stated under penalty of perjury on the
transcription or in a writing to accompany the recording by the party desiring to use such
transcription or recording. The transcription or recording may then be used fully as though
affirmed in writing by the witness, unless on a motion to suppress under Rule 32(d)(4) the court
holds that the reasons given for the refusal to affirm require rejection of the deposition in whole
or in part.
(f) Certification; Exhibits; Copies; Notice of Filing.
(1) When a deposition is stenographically taken, the stenographic reporter shall certify,
under penalty of perjury, on the transcript that the witness was sworn in his presence and that the
transcript is a true record of the testimony given by the witness. When a deposition is recorded
by other than stenographic means as provided in subsection 30(b)(4) of this Rule, and thereafter
transcribed, the person transcribing it shall certify, under penalty of perjury, on the transcript that
he heard the witness sworn on the recording and that the transcript is a correct writing of the
recording. A deposition so certified shall be considered prima facie evidence of the testimony of
the witness.
(2) Documents and things produced for inspection during the examination of the witness,
shall, upon the request of a party, be marked for identification and annexed to the deposition, and
may be inspected and copied by any party. Whenever the person producing materials desires to
97
retain the originals, he may substitute copies of the originals, or afford each party an opportunity
to make copies thereof. In the event the original materials are retained by the person producing
them, they shall be marked for identification and the person producing them shall afford each
party the subsequent opportunity to compare any copy with the original. He shall also be required
to retain the original materials for subsequent use in any proceeding in the same action. Any
party may move for an order that the original be annexed to and returned with the deposition to
the court, pending final disposition of the case.
(3) Upon payment of reasonable charges therefor, the stenographic reporter, or in the case
of a deposition taken pursuant to subsection 30(b)(4) of this rule, the party taking the deposition
shall furnish a copy of the deposition to any party or to the deponent.
(4) If all or part of the deposition is filed with the court, the party making the filing shall
give prompt notice thereof to all other parties.
(g) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed
therewith and another party attends in person or by attorney pursuant to the notice, the court may
order the party giving the notice to pay to such other party the reasonable expenses incurred by
him and his attorney in attending, including reasonable attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a
subpoena upon him and the witness because of such failure does not attend, and if another party
attends in person or by attorney because he expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such other party the reasonable expenses
incurred by him and his attorney in attending, including reasonable attorney's fees.
(h) Expenses Generally Not Treated as Court Costs. No part of the expenses of taking
depositions, other than the serving of subpoenas, shall be adjudged, assessed or taxed as court
costs.
[Amended effective March 1, 1989; July 1, 1997.]
Advisory Committee Historical Note
Effective July 1, 1997, Rule 30(b)(7) was amended to correct the reference to Rule 45.
689-692 So. 2d XLIX (West Miss. Cas. 1997).
Effective March 1, 1989, Rule 30 was amended to abrogate the requirement that the party taking
a deposition out of state pay certain expenses of the other party incident thereto. 536-538 So. 2d
98
XXV (West Miss. Cas. 1989).
[Amended effective July 1, 1997.]
Comment
M.R.C.P. 30(a), (d), and (g) are identical to Miss. Code Ann. § 13-1-230(a), (d), and (g),
respectively. M.R.C.P. 30(b) is modified to provide for the taking of testimony by telephone
without court order. It is intended that the word "telephone" embrace any other recognized form
of telecommunications between distant points. The recipient of a notice calling for a deposition
by telephone may apply to the court for an order requiring the noticing party to appear in the
presence of the deponent for the taking of the deposition when physical confrontation is
necessary for proper examination, to protect against coaching, or to permit the exchange and
reading of documents.
M.R.C.P. 30(b)(4) reverses the statutory predilection against non-stenographic recording
of testimony and permits the party noticing a deposition to provide for such without court order;
Miss. Code Ann. § 13-1-230(b)(4) (1972) requires a court order for non-stenographic recordings.
Electronic recording is now reliably developed. A blanket requirement for live
stenography may often entail unnecessary expense. Moreover, in many instances, the parties
simply wish to know what a particular witness will say; there is no need for a transcript for trial.
Accordingly, there is no basis for an automatic rule that requires transcription or compels the
parties to apply to the court to lift that requirement.
Under this rule, a party or witness aggrieved by the taking of a non-stenographic
deposition can simply arrange for transcription at his own expense. In addition, an application
may be made by a party to the court in which the action is pending, or by a witness to that court
or to the court in which the deposition is to be taken, to compel stenography if there is a basis
to believe that accuracy requires it.
M.R.C.P. 30(b)(7) resolves any ambiguity which might otherwise arise in the case of a
telephonic deposition and provides that a deposition is taken in the county where the deponent
is physically present to answer questions propounded to him. The court in that county is therefore
the appropriate court for purposes of orders pursuant to Rules 37(a)(1) and 37(b)(1), and an
officer authorized to administer oaths in that county or by the laws of that place may administer
the oath to the deponent as provided in Rule 28(a).
The changes in M.R.C.P. 30(c) are required to provide for the more informal methods of
taking depositions permitted under M.R.C.P. 30(b). If a party does not desire to disclose the
nature of his questions to his adversary, he may put them to the witness by telephone, thereby
99
obviating the need for the sealed envelope technique.
The changes in M.R.C.P. 30(e) are designed to improve the language in the rule and to
provide for the authentication of a deposition taken by other than stenographic means as
contemplated by M.R.C.P. 30 (b)(4).
The changes in M.R.C.P. 30(g) are required by the less formal manner prescribed by other
rule changes for the taking of depositions. The rule also clarifies procedures for the marking,
copying, and retention of exhibits. Unless disputed by a participant in the deposition, the court
should presume the correctness of the certified transcript; a dispute over the correctness of the
transcript is to be treated as a dispute of fact.
The preceding modifications of M.R.C.P. 30 were adapted from the Special Committee
for the Study of Discovery Abuse, Section of Litigation, A.B.A., Report, at 9-17 (1977).
[Comment amended effective March 1, 1989; July 1, 1997.]
100
RULE 31. DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After commencement of the action, any party may take
the testimony of any person, including a party, by deposition upon written questions. The
attendance of witnesses may be compelled by the use of subpoena as provided by law. The
deposition of a person confined in prison may be taken only by leave of court on such terms as
the court prescribes.
A party desiring to take a deposition upon written questions shall serve them upon every
other party with a notice stating (1) the name and address of the person who is to answer them,
if known, and if the name is not known, a general description sufficient to identify him or the
particular class or group to which he belongs, and (2) the name or descriptive title and address
of the officer before whom the deposition is to be taken. A deposition upon written questions
may be taken of a public or private corporation or a partnership or association or governmental
agency in accordance with Rule 30(b)(6).
Within thirty days after the notice and written questions are served, a party may serve cross
questions upon all other parties. Within ten days after being served with cross questions, a party
may serve redirect questions upon all other parties. Within ten days after being served with
redirect questions, a party may serve recross questions upon all other parties. The court may for
cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies
of all questions served shall be delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e),
and (f), to take the testimony of the witness in response to the questions and to prepare, certify,
and file or mail the deposition, attaching, thereto the copy of the notice and the questions received
by him.
Comment
M.R.C.P. 31(a) is identical to Miss. Code Ann. § 13-1-231(a) (1972). However, the rule
differs from the statute by deleting all references to filing, as provided by M.R.C.P. 5 and 30. See
Pyle, Ott, Rumfelt, Mississippi Rules of Discovery, 46 Miss.L.J. 681, 725-26 (1975); and Special
Committee for the Study of Discovery Abuse, Section of Litigation, A.B.A., Report, at 17 (1977).
101
RULE 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a motion of an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence
applied as though the witness were then present and testifying, may be used against any party
who was present or represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness, or for any other purpose permitted by the
Mississippi Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an
officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify
on behalf of a public or private corporation, partnership or association or governmental agency
which is a party, may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any
purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater
distance than one hundred miles from the place of trial or hearing, or is out of the state, unless
it appears that the absence of the witness was procured by the party offering the deposition; or
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or
imprisonment; or (D) that the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or (E) that the witness is a medical doctor or (F) upon
application and notice, that such exceptional circumstances exist as to make it desirable, in the
interest of justice and with due regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be so used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may
require him to introduce any other part which ought in fairness to be considered with the part
introduced, and any party may introduce any other parts.
Substitution of parties does not affect the right to use depositions previously taken; and,
when an action in any court has been dismissed and another action involving the same subject
matter is afterward brought between the same parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed in the former action may be used in the latter
as if originally taken therefor. A deposition previously taken may also be used as permitted by
the Mississippi Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rule 28(b) and subsection
102
(d)(3) of this rule, objection may be made at the trial or hearing to receive in evidence any
deposition or part thereof for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
[Amended effective October 21, 1999.]
(c) [Abrogated].
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is waived unless made before the
taking of the deposition begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency, relevancy, or
materiality of testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground of the objection is one which might have been
obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of
taking the deposition, in the form of the questions or answers, in the oath or affirmation,
or in the conduct of the parties, and errors of any kind which might be obviated, removed,
or cured if promptly presented, are waived unless seasonable objection thereof is made at
the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule 31 are waived
unless served in writing upon the party propounding them within the time allowed for
serving the succeeding cross or other questions and within five days after service of the
last questions authorized.
(4) As to Completion and Return of Deposition. Errors and irregularities in the manner
in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed,
endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are
waived unless a motion to suppress the deposition or some part thereof is made with reasonable
103
promptness after such defect is, or with due diligence might have been, ascertained.
[Amended effective January 10, 1986; March 1, 1989.]
Advisory Committee Historical Note
Effective March 1, 1989, Rule 32 was amended by providing that the deposition of a
medical doctor may be used by any party for any purpose. 536-538 So. 2d XXV (West Miss. Cas.
1989).
Effective January 10, 1986, Rule 32 was amended by deleting references to the Mississippi
Rules of Evidence; and Rule 32(c) [Effect of Taking or Using Depositions] was abrogated. 478­
481 So. 2d XXIII (West Miss. Cas. 1986).
Comment
Rule 32 as originally adopted was based on Miss. Code Ann. § 13-1-232 (1972). See Pyle,
Ott, Rumfelt, Mississippi Rules of Discovery, 46 Miss.L.J. 681, 726-35 (1975).
Subsection (a) has been amended to reflect the admissibility of depositions, apart from
Rule 32, as permitted by the Mississippi Rules of Evidence.
Mississippi Rule of Evidence 801(d)(1)(A) permits the introduction for substantive
purposes of a prior inconsistent statement made by a witness while testifying under oath in a
judicial proceeding or deposition. See 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶
801(D)(01)[01] (1985).
Mississippi Rule of Evidence 804(b)(1) permits the introduction of the deposition
testimony of an unavailable witness. Though the deposition of the unavailable witness need not
have been taken in the same proceeding as that in which it is offered, the party against whom the
deposition is offered, including a predecessor in interest in civil actions, must have had both an
opportunity and a similar motive for cross-examination. See 4 J. Weinstein & M. Berger,
Weinstein's Evidence ¶ 801(D)(01)[01] (1985).
Subsection (c) of the Rule has been deleted. The original purpose of subsection (c) was
to avoid in certain situations application of the common law rule that prohibited a party from
impeaching his own witness. See C. McCormick Handbook on the Law of Evidence § 38 (C.
Cleary 3d ed. 1984). Subsection (c) precluded the application of the so-called voucher rule to a
party by the mere act of taking the deposition of a witness. Subsection (c) Seemed to apply the
voucher rule to a party who introduced a deposition of a witness for any purpose other than
104
contradicting or impeaching the deponent. To this extent, subsection (c) was inconsistent with
Rule 43(b)(4) as originally enacted. See Dunbar, Discovery-Rules 26-34, 36 and 37, 52 Miss.L.J.
119, 136-37 (1982).
The adoption of Mississippi Rule of Evidence 607 has rendered subsection (c) superfluous
and negated any contention that a party introducing a deposition might be precluded from
impeaching the deponent. Mississippi Rule of Evidence 607 provides that any party, including
the calling party, may impeach the credibility of any witness.
[Amended effective January 10, 1986.]
105
RULE 33. INTERROGATORIES TO PARTIES
(a) Availability; Procedures for Use. Any party may serve as a matter of right upon any
other party written interrogatories not to exceed thirty in number to be answered by the party
served or, if the party served is a public or private corporation or a partnership or association or
governmental agency, by any officer or agent, who shall furnish such information as is available
to the party. Each interrogatory shall consist of a single question. Interrogatories may, without
leave of court, be served upon the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that party. Leave of court, to be
granted upon a showing of necessity, shall be required to serve in excess of thirty interrogatories.
(b) Answers and Objections
(1) Each interrogatory shall be answered separately and fully in writing under oath, unless
it is objected to, in which event the objecting party shall state the reasons for the objection and
shall answer to the extent the interrogatory is not objectionable.
(2) The answers are to be signed by the person making them, and the objections signed
by the attorney making them.
(3) The party upon whom the interrogatories have been served shall serve a copy of the
answers, and objections if any, within thirty days after the service of the interrogatories, except
that a defendant may serve answers or objections within forty-five days after service of the
summons and complaint upon that defendant. The court may allow a shorter or longer time.
(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any
ground not stated in a timely objection is waived unless the party's failure to object is excused by
the court for good cause shown.
(5) The party submitting the interrogatories may move for an order under Rule 37 (a)
with respect to any objection to or other failure to answer an interrogatory.
(c) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired
into under Rule 26(b), and the answers may be used to the extent permitted by the rules of
evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an
answer to the interrogatory involves an opinion or contention that relates to fact or the application
of law to fact, but the court may order that such an interrogatory need not be answered until after
designated discovery has been completed or until a pre-trial conference or other later time.
106
(d) Option to Produce Business Records. Where the answer to an interrogatory may be
derived or ascertained from the business records of the party upon whom the interrogatory has
been served or from an examination, audit, or inspection of such business records, or from a
compilation, abstract, or summary based thereon, and the burden of deriving or ascertaining the
answer is substantially the same for the party serving the interrogatory as for the party served, it
is a sufficient answer to such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity
to examine, audit, or inspect such records and to make copies, compilations, abstracts, or
summaries. The specification provided shall include sufficient detail to permit the interrogating
party to identify readily the individual documents from which the answer may be ascertained.
[Amended effective April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 33 was amended to require parties to produce all
nonobjectionable information and to clearly state the ground for objection to each interrogatory.
753-754 So. 2d XVII (West Miss.Cas. 2000).
Comment
M.R.C.P. 33(a) places a numerical limitation on the number of interrogatories that may
be posed as a matter of right.
The thirty interrogatories permitted as of right are to be computed by counting each
distinct question as one of the thirty, even if labeled a sub-part, subsection, threshold question,
or the like. In areas well suited to non-abusive exploration by interrogatory, such as inquiries into
the names and locations of witnesses, or the existence, location, and custodians of documents or
physical evidence, greater leniency may be appropriate in construing several questions as one
interrogatory.
MRCP 33(b)(1) emphasizes the duty of the responding party to provide full responses to
the extent not objectionable. MRCP 33(b)(4) requires that the grounds for any objection be stated
with specificity. Answers may not be provided subject to an objection. Instead, the responding
party should quote or otherwise identify the part of the interrogatory that is objectionable, state
the grounds for the objection, and respond in full to the remainder. If, for example, an
interrogatory seeking information about 30 facilities is deemed objectionable, but an interrogatory
seeking information about 10 facilities would not have been objectionable, the interrogatory
should be answered with respect to the 10 facilities, and the grounds for objection to providing
the information with respect to the remaining facilities should be stated specifically.
107
The final sentence of M.R.C.P. 33(d) is designed to eliminate the mechanical response of
an invitation to "look at all my documents." The rule makes it clear that the responding party has
the duty to specify precisely, by category and location, which documents apply to which question.
Further, such answers being given under oath are intended to eliminate subsequent evasive use
of additional documents at trial on issues confronted by the interrogatory request. See Special
Committee for the Study of Discovery Abuse, Section of Litigation, A.B.A., Report, at 18-21
(1977); Pyle, Ott, Rumfelt, Mississippi Rules of Discovery, 46 Miss.L.J. 681, 735 42 (1975).
[Comment amended effective April 13, 2000.]
108
RULE 34. PRODUCTION OF DOCUMENTS AND THINGS
AND ENTRY UPON LAND FOR INSPECTION AND
OTHER PURPOSES
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the
party making the request, or someone acting on his behalf, to inspect and copy, any designated
documents (including writings, drawings, graphs, charts, photographs, phono-records, and other
data compilations from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably useable form), or to inspect and copy, test,
or sample any tangible things which constitute or contain matters within the scope of Rule 26(b)
and which are in the possession, custody, or control of the party upon whom the request is served;
or (2) to permit entry upon designated land or other property in the possession or control of the
party upon whom the request is served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any designated object or operation thereon,
within the scope of Rule 26 (b).
(b) Procedure. The request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service of the summons and
complaint upon that party. The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and category with reasonable particularity.
The request shall specify a reasonable time, place, and manner of making the inspection and
performing the related acts. The party upon whom the request is served shall serve a written
response within thirty days after the service of the request, except that a defendant may serve a
response within forty-five days after service of the summons and complaint upon that defendant.
The court may allow a shorter or longer time. The response shall state, with respect to each item
or category, that inspection and related activities will be permitted as requested, unless the request
is objected to, in which event the reasons for objection shall be stated. If objection is made to
part of an item or category, the part shall be specified. The party submitting the request may
move for an order under Rule 37(a) with respect to any objection to or other failure to respond
to the request or any part thereof, or any failure to permit inspection as requested.
When producing documents, the producing party shall produce them as they are kept in
the usual course of business or shall organize and label them to correspond with the categories
in the request that call for their production.
(c) Persons Not Parties. This rule does not preclude an independent action against a
person not a party for production of documents and things and permission to enter upon land.
Comment
109
M.R.C.P. 34(a) and (c) are identical to Miss. Code Ann. §§ 13-1-234 (a) and (c) (1972).
Subdivision (b) of the rule differs from subdivision (b) of the statute in that the words "and
complaint" are added after the word "summons" in the first sentences of the first and second
paragraphs, and a new third paragraph is added to the rule. The former addition conforms to
M.R.C.P. 4(a)(2) (copy of complaint to be served with summons); the latter tracks the
recommendation of the Special Committee for the Study of Discovery, Abuse, Section of
Litigation, A.B.A., Report, at 21-23 (1977).
The new paragraph, prescribing the manner of document production, is intended to deter
deliberate attempts by a producing party to burden discovery with volume or disarray or
deliberately mixing critical documents with others in an effort to obscure significance.
Generally, the most convenient and least burdensome method of producing documents
would entail production in the order in which the documents are actually kept in the usual course
of business, so that there is an internal logic reflecting business use. If this method is not elected,
then the producing party may organize his paper production in accordance with the categories
specified in the request.
See also Pyle, Ott, Rumfelt, Mississippi Rules of Discovery, 46 Miss.L.J. 681, 764-83
(1975).
110
RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(a) Order for Examination.
When the mental or physical condition (including the blood group) of a party or of a
person in the custody or under the legal control of a party is in controversy, the court in which
the action is pending may order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination the person in the party's
custody or legal control. The order may be made only on motion for good cause shown and upon
notice to the person to be examined and to all parties and shall specify the time, place, manner,
conditions, and scope of the examination and the person or persons by whom it is to be made. A
party or person may not be required to travel an unreasonable distance for an examination. The
party requesting the examination shall pay the examiner and shall advance all necessary expenses
to be incurred by the party or person in complying with the order.
(b) Report of Examiner.
(1) If requested by the party against whom an order is made under Rule 35(a) or the person
examined, the party causing the examination to be made shall deliver to the requesting party a
copy of the detailed written report of the examiner setting out the examiner's findings, including
results of all tests made, diagnoses and conclusions, together with like reports of all earlier
examinations of the same condition. After delivery the party causing the examination shall be
entitled upon request to receive from the party against whom the order is made a like report of
any examination, previously or thereafter made, of the same condition unless, in the case of a
report of examination of a person not a party, the party shows that the party is unable to obtain
it. The court on motion may make an order against a party requiring delivery of a report on such
terms as are just, and if an examiner fails or refuses to make a report the court may exclude the
examiner's testimony if offered at trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the
deposition of the examiner, the party examined waives any privilege the party may have in that
action or any other involving the same controversy, regarding the testimony of every other person
who has examined or may thereafter examine the party in respect of the same mental or physical
condition.
(3) This subdivision applies to examinations made by agreement of the parties, unless the
agreement expressly provides otherwise. This subdivision does not preclude discovery of a report
111
of an examiner or the taking of a deposition of the examiner in accordance with the provisions
of any other rule.
(c) Limited Applicability to Actions Under Title 93 of the Mississippi Code of 1972.
This rule does not apply to actions under Title 93 of the Mississippi Code of 1972, except in the
discretion of the Chancery Judge.
[Adopted effective January 16, 2003. ]
Advisory Committee Historical Note
Effective January 16, 2003, Rule 35 was adopted to allow a court to order a physical or
mental examination of a person for good cause on motion.
So.2d
(West Miss.Cases
).
Comment
Rule 35(a)(1) is modeled, in general, after F ED. R. C IV. P. 35. The purpose of Rule
35(a)(1) is to allow a court to order a physical or mental examination of a person for good cause
on motion. Previously, the omission in the Mississippi Rules of Civil Procedure of a counterpart
to Federal Rule 35 was held to preclude a court from ordering an examination under any
circumstances. See Swan v. I. P. Inc., 613 So. 2d 846 (Miss. 1993).
The order may be made only upon good cause and is limited to cases in which the
condition of the party or person to be examined is in controversy. For a discussion of the
showing required, see Wright & Miller, Federal Practice and Procedure, Civil, § 2234.1 (1994).
Although some states allow examinations under Rule 35 without an order of the court,
Mississippi Rule 35, like the federal counterpart, requires such an order, and, generally, the
choice of physicians is left to the party seeking the examination. Addressing federal practice,
Wright & Miller havesaid: “The usual attitude is that the moving party has no absolute right to
the choice of the physician, but that when no serious objection arises, it is probably best for the
court to appoint the doctor of the moving party’s choice.” Wright & Miller, Federal Practice and
Procedure, Civil, § 2234.2 (1994).
Rule 35(c) provides that in divorce, child custody, and other actions under Title 93 of the
112
Mississippi Code of 1972, examinations are entirely within the discretion of the Chancery Judge.
[Adoptive effective, January 16, 2003.]
113
RULE 36. REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other party a written request for
the admission, for purposes of the pending action only, of the truth of any matters within the
scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have been or are otherwise
furnished or made available for inspection and copying. The request may, without leave of court,
be served upon the plaintiff after commencement of the action and upon any other party with or
after service of the summons upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter
is admitted unless, within thirty days after service of the request, or within such shorter or longer
time as the court may allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the matter, signed by the
party or by his attorney, but, unless the court shortens the time, a defendant shall not be required
to serve answers or objections before the expiration of forty-five days after service of the
summons upon him. If objection is made, the reasons therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail the reasons why the answering party cannot
truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested
admission, and when good faith requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of it as is true and qualify
or deny the remainder. An answering party may not give lack of information or knowledge as
a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that
the information known or readily obtainable by him is insufficient to enable him to admit or deny.
A party who considers that a matter of which an admission has been requested presents a genuine
issue for trial may not, on that ground alone, object to the request; he may, subject to Rule 37(c),
deny the matter or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the
answers or objections. Unless the court determines that an objection is justified, it shall order that
an answer be served. If the court determines that an answer does not comply with the
requirements of this section, it may order either that the matter is admitted or that an amended
answer be served. The court may, in lieu of these orders, determine that final disposition of the
request be made at a pre-trial conference or at a designated time prior to trial. Rule 37(a)(4)
applies to the award of expenses incurred in relation to the motion.
114
(b) Effect of Admission. Any matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of the admission. Subject to the
provisions governing amendment of a pre-trial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be subserved thereby and the
party who obtained the admission fails to satisfy the court that withdrawal or amendment will
prejudice him in maintaining his action or defense on the merits. Any admission made by a party
under this rule is for the purpose of the pending action only and is not an admission by him for
any other purpose nor may it be used against him in any other proceeding.
Comment
Rule 36 is identical to Miss. Code Ann. § 13-1-236 (1972). See Pyle, Ott, Rumfelt,
Mississippi Rules of Discovery, 46 Miss.L.J. 681, 748-62 (1975).
115
RULE 37. FAILURE TO MAKE OR COOPERATE IN
DISCOVERY: SANCTIONS
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other
parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order may be made to the court in which
the action is pending.
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules
30 or 31, or a corporation or other entity fails to make a designation under Rules 30(b)(6) or
31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails to respond that inspection will
be permitted as requested or fails to permit inspection as requested, the discovering party may
move for an order compelling an answer, or a designation, or an order compelling inspection in
accordance with the request. When taking a deposition on oral examination, the proponent of the
question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it
would have been empowered to make on a motion made pursuant to Rule 26(d).
(3) Evasive or Incomplete Answer. For purposes of this section, an evasive or
incomplete answer is to be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court shall, after
opportunity for hearing, require the party or deponent whose conduct necessitated the motion or
the party or attorney advising such conduct or both of them to pay to the moving party the
reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court
finds that the opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving
party of the attorney advising the motion or both of them to pay to the party or deponent who
opposed the motion the reasonable expenses incurred in opposing the motion, including
attorney's fees, unless the court finds that the making of the motion was substantially justified or
116
that other circumstances make an award of expense unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable
expenses incurred in relation to the motion among the parties and persons in a just manner.
(b) Failure to Comply With Order.
(1) Sanctions by Court. If a deponent fails to be sworn or to answer a question after being
directed to do so by the court, the failure may be considered a contempt of court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or
managing agent of a party or a person designated under Rules 30(b)(6) or 31(a) to testify in
behalf of a party fails to obey an order to provide or permit discovery, including an order made
under subsection (a) of this rule, the court in which the action is pending may make such orders
in regard to the failure as are just, and among others the following:
(A) an order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(B) an order refusing to allow the disobedient party to support or oppose designated
claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) an order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party;
(D) in lieu of any of the foregoing orders or in addition thereto, an order treating
as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition, thereto, the court shall require the
party failing to obey the order or the attorney advising him or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the court finds that the failure
was substantially justified or that other circumstances make an award of expenses unjust.
117
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any
document or the truth of any matter as requested under Rule 36, and if the party requesting the
admissions thereafter proves the genuineness of the document or the truth of the matter, he may
apply to the court for an order requiring the other party to pay him the reasonable expenses
incurred in making that proof, including reasonable attorney's fees. The court shall make the
order unless it finds that (1) the request was held objectionable under Rule 36(a), or (2) the
admission sought was of no substantial importance, or (3) the party failing to admit had
reasonable ground to believe that he might prevail on the matter, or (4) there was other good
reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories
or Respond to Request for Inspection. If a party or an officer, director, or managing agent of
a party or a person designated under Rules 30(b)(6) or 31(a) to testify on behalf of a party fails
(1) to appear before the officer who is to take his deposition, after being served with a proper
notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after
proper service of interrogatories, or (3) to serve a written response to a request for inspection
submitted under Rule 34, after proper service of the request, the court in which the action is
pending on motion may make such orders in regard to the failure as are just, and among others
it may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this
rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or
the attorney advising him or both to pay the reasonable expenses, including attorney's fees,
caused by the failure, unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
The failure to act described in this subsection may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act has applied for a protective order
under Rule 26(d).
(e) Additional Sanctions. In addition to the application of those sanctions, specified in
Rule 26(d) and other provisions of this rule, the court may impose upon any party or counsel such
sanctions as may be just, including the payment of reasonable expenses and attorneys' fees, if any
party or counsel (i) fails without good cause to cooperate in the framing of an appropriate
discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses the discovery process in
seeking, making or resisting discovery.
Comment
118
M.R.C.P. 37 contains a new subdivision (e) which does not appear in Miss. Code Ann. §
13-1-237 (1972).
The statutory rule requires that each failure to respond to a discovery request be dealt with
by a separate motion; the successful result of the first motion is usually an order to comply with
the discovery request. Sanctions customarily are not imposed until after there has been a refusal
to comply with a second order; moreover, under the statute there are no sanctions directed
against a party who seeks unnecessary discovery. M.R.C.P. 37(e) gives greater flexibility to the
trial court in the form of a general grant of power which would enable it to deal summarily with
discovery abuses, whenever and however the abuse is brought to the attention of the court. For
example, for the failure of a party to have made proper discovery, or for the misuse of the various
discovery vehicles, the court may, at the conclusion of the case, impose monetary penalties
according to the unnecessary expense to which the adverse party was put. It is significant that
Rule 37(e) does not enumerate the sanctions available to the court; courts should have
considerable latitude in fashioning sanctions suitable for particular applications. But See:
Karenina by Vronsky v. Presley, 526 So.2d 518 (Miss.1988).
MRCP 37(e) was adapted from the Special Committee for the Study of Discovery Abuse,
Section of Litigation, A.B.A., Report, at 23-25 (1972). See also Pyle, Ott, Rumfelt, Mississippi
Rules of Discovery, 46 Miss. L. J. 681, 764-83 (1975).
[Amended effective February 1, 1990.]
119
CHAPTER VI. TRIALS
RULE 38. JURY TRIAL OF RIGHT
(a) Right Preserved. The right of trial by jury as declared by the Constitution or any
statute of the State of Mississippi shall be preserved to the parties inviolate.
(b) Waiver of Jury Trial. Parties to an action may waive their rights to a jury trial by
filing with the court a specific, written stipulation that the right has been waived and requesting
that the action be tried by the court. The court may, in its discretion, require that the action be
tried by a jury notwithstanding the stipulation of waiver.
Comment
The purpose of Rule 38 is to guarantee to litigants their right to a trial by jury as declared
by § 31 of the Mississippi Constitution, while simultaneously providing for more flexibility in
the uses of juries.
Rule 38(a) neither broadens nor restricts the pre-Rule 38 right to a trial by jury; it takes
a neutral position and affirms the right to a trial by jury in cases where it was guaranteed before
the Rule. See In re Extension of Boundaries of City of Meridian, 237 Miss. 486, 115 So.2d 323
(1959) (Miss. Const. § 31 applies only to those cases where a jury trial was required at common
law); Talbot & Higgins Lumber Co. v. McLeod Lumber Co., 147 Miss. 186, 113 So. 433 (1927).
120
RULE 39. [TRIAL BY JURY OR BY THE COURT]
[OMITTED]
Comment
Federal Rule 38 requires that a party desiring a trial by jury demand same in writing; if
such a demand is not timely made, the right to trial by jury may be deemed waived and the action
will be tried by the court. Federal Rule 39 prescribes the procedures for designating on the
docket which actions are to be tried by a jury and which by the court.
Mississippi Rule 38 merely recites that a party's right to a jury trial is unabridged by these
rules, but permits the right to be waived. There is no need for docketing actions according to
whether they are to be tried by the court or by a jury; hence, Rule 39 is omitted.
121
RULE 40. ASSIGNMENT OF CASES FOR TRIAL
(a) Methods. Courts shall provide for placing of actions upon the trial calendar
(1) without request of the parties; or
(2) upon request of a party and notice to the other parties; or,
(3) in such other manner as the court deems expedient.
Prior to the calling of a case for trial, the parties shall be afforded ample opportunity, in
the sound discretion of the court, for completion of discovery.
(b) Notice. The court shall provide by written direction to the clerk when a trial docket
will be set. The clerk shall at least five (5) days prior to the date on which the trial docket will
be set notify all attorneys and parties without attorneys having cases upon the trial calendar of the
time, place, and date when said docket shall be set. All cases shall be set on the trial docket at
least twenty (20) days before the date set for trial unless a shorter period is agreed upon by all
parties or is available under Rule 55. The trial docket shall be prepared by the clerk at the time
actions are set for trial and shall state the case to be tried, the date of trial, the attorneys of record
in the case, and the place of trial. Additionally, said trial docket shall reflect such attorneys of
record and parties representing themselves as were present personally or by designee when the
trial docket was set. The clerk shall within three (3) days after a case has been placed on the trial
docket notify all parties who were not present personally or by their attorney of record at the
docket setting as to their trial setting. Notice shall be by personal delivery or by mailing of a
notice within said three (3) day period. Matters in which a defendant is summoned to appear and
defend at a time and place certain pursuant to Rule 81 or in which a date, time and place for trial
have been previously set shall not be governed by this rule.
(c) Trial by Agreement. Parties, including those who are in a representative or fiduciary
capacity, may waive any waiting period imposed by these rules or statute and agree to a time and
place for trial.
[Amended effective July 1, 1986; September 1, 1987; March 1, 1989.]
122
Advisory Committee Historical Note
Effective March 1, 1989, Rule 40(a) was amended by abrogating reference to local rules.
536-538 So. 2d XXX (West Miss. Cas. 1989).
Effective September 1, 1987, Rule 40 was amended by adding subsection (c) providing
for the scheduling of trials by agreement of the parties. 508-511 So. 2d XXVIII (West Miss. Cas.
1987).
Effective July 1, 1986, Rule 40(b) was amended by substantially rewriting it to shorten the
time period provided for giving interested attorneys and parties notice of the setting of the trial
docket; to provide for at least twenty days between the time of the setting of a case on the docket
and the time of the trial; to provide for certain information to be recorded on the docket; and for
other purposes. 486-490 So. 2d XXI (West Miss. Cas. 1986).
Comment
Rule 40 establishes an orderly but flexible method of scheduling cases for trial, while
assuring that the parties receive appropriate notice at important stages of the process. It
accomplishes this function through the mechanisms of the trial calendar and the trial docket. The
trial calendar, also required by Rule 79(c), is a list of pending actions that the court has found
ready for trial. The order in which the cases appear on the trial calendar generally corresponds
to the order in which they will be tried. Rule 40(a) requires that each court define the method of
placing actions on the trial calendar. The precise method chosen is within the court's discretion,
subject only to the requirement that it allow adequate time for discovery.
The trial docket reflects the trial dates for cases on the trial calendar, and is governed by
Rule 40(b). The rule requires that the trial docket be prepared at the time the cases are set down
for trial and that it state (i) the date, time, and place of trial; (ii) the names of the attorneys of
record; (iii) and the names of attorneys and litigants who were present when the case was set for
trial. Rule 40(b) requires that at least five (5) days notice be given to litigants of the date the case
is to be set down for trial. This provision will allow attorneys and litigants the opportunity to be
heard in the scheduling of their case for trial.
In addition, Rule 40(b) requires that the trial date be at least twenty (20) days after the time
123
the case is set for trial, unless the parties agree to a shorter period. The purpose of this
requirement is, of course, to allow the parties adequate time to prepare for trial. Parties who are
present at the setting receive notice of the date and time of trial at that time. Rule 40(b) requires
the clerk to mail or personally to deliver notice of the date and time of trial within three (3) days
to all parties not present or represented by their attorney at the setting. Thus, all parties will have
received notice of the date, time and place of trial seventeen (17) days before that date, less the
time necessary for the delivery of notice by mail. This time is adequate, first, since all cases
covered by the rule will already have been found ready for trial under Rule 40(a). Moreover, all
parties will have received notice of the setting of the docket and will therefore be aware that their
trial may be imminent.
The twenty-day waiting period is inapplicable to hearings conducted by the court in
connection with default judgments under Rule 55.
Rule 40(b) is subject to two (2) general exceptions. First, in actions in which the
defendant is summoned to appear at a particular time and place, the rule is inapplicable, although
in such cases, the court should give all parties notice appropriate to the nature of the case.
Second, if a case has been placed on the trial docket under Rule 40(b) and for whatever reason
is not tried at the scheduled time, the court may reschedule the trial for any date without further
notice. To require five (5) days notice of the resetting and twenty (20) days notice of trial in all
such cases would unduly hinder the prompt rescheduling of cases that are fully prepared for trial.
1985 Revision. Rule 40(b) was completely revised in 1985. The earlier version of the rule
was ambiguous, but appeared to require that parties be given twenty (20) days notice of the
proceeding at which the trial calendar is prepared, but established no mandatory time between
that proceeding and the trial date. The committee determined that this rule required too much
notice of the date the case was to be set, and failed to require adequate notice of the trial date.
Paragraphs (a) and (b) provide the manner in which a trial date is obtained in instances
where parties are unable to agree on such date. Paragraph (c), added in 1987, makes clear that
parties are not bound to follow the formalities of paragraphs (a) and (b), but may agree upon a
trial date. Paragraph (c) also provides that any rule or statutory waiting period required prior to
hearing or trial may be waived by parties, including those in a representative or fiduciary
capacity.
[Amended effective September 1, 1987; March 1, 1989.]
124
RULE 41. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal Effect Thereof.
(1) By Plaintiff By Stipulation. Subject to the provisions of Rule 66, or of any statute of
the State of Mississippi, and upon the payment of all costs, an action may be dismissed by the
plaintiff without order of court:
(i) by filing a notice of dismissal at any time before service by the adverse party of
an answer or of a motion for summary judgment, whichever first occurs; or
(ii) by filing a stipulation of dismissal signed by all parties who have appeared in the
action.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice.
(2) By Order of Court. Except as provided in paragraph (a)(1) of this rule, an action shall
not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and
conditions as the court deems proper. If a counter-claim has been pleaded by a defendant prior
to the service upon him of the plaintiff's motion to dismiss, the action may be dismissed but the
counter-claim shall remain pending for adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or
to comply with these rules or any order of court, a defendant may move for dismissal of an action
or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of his evidence, the defendant, without waiving his right to offer
evidence in the event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief. The court may then render
judgment against the plaintiff or may decline to render any judgment until the close of all the
evidence. If the court renders judgment on the merits against the plaintiff, the court may make
findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any other dismissal not provided for in this rule, other than
a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule
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19, operates as an adjudication upon the merits.
(c) Dismissal of Counter-claim, Cross-Claim or Third-Party Claim. The provisions
of this rule apply to the dismissal of any counter-claim, cross-claim, or third-party claim. A
voluntary dismissal by the claimant alone pursuant to paragraph (a)(1) of this rule shall be made
before a responsive pleading is served or, if there is none, before the introduction of evidence at
the trial or hearing.
(d) Dismissal on Clerk's Motion.
(1) Notice. In all civil actions wherein there has been no action of record during the
preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that
such case will be dismissed by the court for want of prosecution unless within thirty days
following said mailing, action of record is taken or an application in writing is made to the court
and good cause shown why it should be continued as a pending case. If action of record is not
taken or good cause is not shown, the court shall dismiss each such case without prejudice. The
cost of filing such order of dismissal with the clerk shall not be assessed against either party.
(2) Mailing Notice. The notice shall be mailed in every eligible case not later than thirty
days before June 15 and December 15 of each year, and all such cases shall be presented to the
court by the clerk for action therein on or before June 30 and December 31 of each year. These
deadlines shall not be interpreted as a prohibition against mailing of notice and dismissal thereon
as cases may become eligible for dismissal under this rule. This rule is not a limitation upon any
other power that the court may have to dismiss any action upon motion or otherwise.
(e) Cost of Previously Dismissed Action. If a plaintiff whose action has once been
dismissed in any court commences an action based upon or including the same claim against the
same defendant, the court may make such order for the payment of costs of the action previously
dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has
complied with the order.
Comment
The purpose of Rule 41 is to establish a uniform rule governing voluntary and involuntary
dismissals of actions. Rule 41(a), which permits a plaintiff voluntarily to dismiss his action, is
126
intended to give him the right to take the case out of court if no other party will be prejudiced.
The right is limited by the rule to the period before answer or motion for summary judgment;
thereafter dismissal can be had only with consent of the court and on such conditions as are just.
Rule 41(a)(1) provides two methods by which a plaintiff may dismiss an action without
obtaining the consent of the court: He may do so at any time by stipulation of all the parties; he
may do so prior to service of an answer or of a motion for summary judgment by his own
unilateral act of filing a notice of dismissal with the court.
The defenses listed in Rule 12(b) may, at the option of the defendant, be asserted in an
answer or by motion to dismiss. If they are included in an answer, the service of the answer
terminates plaintiff's right to dismiss by notice. Plaintiff's right of voluntary dismissal is not cut
off if the defense is put forward by motion to dismiss. A motion to dismiss is neither an answer
nor, unless accompanied by affidavits stating matters outside the pleadings that are not excluded
by the court, a motion for summary judgment; a motion to dismiss does not terminate the right
of dismissal by notice, nor does a motion for a stay or a motion for change of venue.
The other procedure for voluntary dismissal, in addition to dismissal by notice, a dismissal
by stipulation of all the parties. Dismissal by stipulation may be had at any time. A stipulation
will not be construed as being for dismissal in the absence of an unequivocal statement by the
parties that it was so intended.
Dismissal by stipulation is without prejudice unless the stipulation provides that it is to be
with prejudice. A voluntary dismissal by stipulation is effective immediately and does not require
judicial approval.
The procedure under MRCP 41(a)(1) is contrary to past Mississippi nonsuit practice,
which permitted the plaintiff to voluntarily dismiss his suit without prejudice at any time before
the case was submitted to the jury. Miss. Code Ann. § 11-7-125; See also Miss. Code Ann. §
11-7-127 (1972) (plaintiff may take a nonsuit before the clerk in vacation); Allison v. Camp
Creek Drainage Dist., 211 Miss. 354, 364, 51 So.2d 743, 747 (1951) (plaintiff in chancery action
may nonsuit without prejudice up to time cause is submitted to chancellor for final decision on
the merits); but see Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435 (1917). It
is also contrary to practice under Federal Rule 41(a), which permits only one voluntary nonsuit
at any time before defendant's responsive pleading is made.
127
Although Miss. Code Ann. §§ 11-27-125 and -127 (1972) are couched in terms ostensibly
granting an absolute right to the plaintiff to nonsuit before the cause is submitted, the statutes
have not been so interpreted, particularly in chancery practice: "When in any respect the cause
has proceeded to that point . . . that the defendant has . . . secured some substantial right which
would be destroyed by the dismissal, it should not be permitted." Mitchell v. Film Transit Co.,
194 Miss. 550, 13 So.2d 154 (1943). See also V. Griffith, Mississippi Chancery Practice, § 534
(2d ed. 1950).
The trial court has no power to impose terms and conditions if a plaintiff properly
dismisses by notice under Rule 41(a)(1). Nor may the plaintiff seek to make a conditional
dismissal under that portion of the rule. If dismissal is by stipulation under Rule 41(a)(1), the
parties work out for themselves the conditions on which they will enter into the stipulation.
Accordingly, the authority of the court to require "such terms and conditions as the court deems
proper" is limited to a motion for dismissal under Rule 41(a)(2).
The terms of conditions that may be imposed upon the granting of a motion for voluntary
dismissal are for the protection of the defendant, although if one of several plaintiffs moves for
dismissal conditions may be imposed for the protection of the remaining plaintiffs. The court
may dismiss without conditions if they have not been shown to be necessary, but should at least
require that the plaintiff pay the costs of the litigation. In imposing conditions the court is not
limited to taxable costs, but may require the plaintiff to compensate for all of the expenses to
which his adversary has been put; the court may require plaintiff to pay the defendant's attorney's
fees as well as other costs and
disbursements.
Dismissal on motion under Rule 41(a)(2) is within the sound discretion of the court, and
its order is reviewable only for abuse of discretion. The discretion given the court by Rule
41(a)(2) is a judicial, rather than an arbitrary, discretion. If necessary, a hearing should be held
and the court should endeavor to ensure substantial justice to both parties.
The purpose of Rule 41(a)(2) is primarily to prevent voluntary dismissal which unfairly
affects the other side, and to permit the imposition of curative conditions. Accordingly, the
dismissal should be allowed generally unless the defendant will suffer some plain legal prejudice
other than the mere prospect of a second law suit. It is not a bar to dismissal that plaintiff may
obtain some tactical advantage thereby.
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The second sentence of Rule 41(a)(2) provides that if a counter-claim has been pleaded
by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall
not be dismissed against the defendant's objection unless the counter-claim can remain pending
for independent adjudication by the court. The purpose of the rule is to preserve the court's
jurisdiction over the parties and the counter-claim. Ordinarily the counter-claim can stand on its
own and dismissal can be granted without affecting the counter-claim. If the counter-claim is
compulsory, the court has jurisdiction to decide it even though the plaintiff claim is dismissed;
if the counter-claim is permissive, it will ordinarily require independent grounds for jurisdiction
and
these independent grounds permit it to remain pending. Thus, the rule applies only when there
is a permissive counter-claim that can be maintained without an independent ground of
jurisdiction, as when it is a setoff, or in other unusual circumstances in which the counter-claim
would fall if the plaintiff's claim were dismissed.
Rule 41(b) allows the court to dismiss an action involuntarily for three different causes:
dismissal at the close of the plaintiff's evidence for failure to show a right to relief, which
operates as a decision on the merits, dismissal for want of prosecution, which is a penalty for
dilatoriness, See Miss. Code Ann. § 11-53-25 (1972) (dismissal for want of prosecution); and
dismissal for failure to comply with "these rules" or any order of the court; see Sherwin Williams
Co. v. Feld Bros. & Co., 139 Miss. 21, 28, 103 So. 795, 796 (1925) (plaintiff may be nonsuited
by the court for failure to comply with order to make declaration more specific). Unless
otherwise specifically ordered by the court, an involuntary dismissal under Rule 41(b) ordinarily
operates as an adjudication upon the merits and is with prejudice. See 9 Wright & Miller, Federal
Practice and Procedure, Civil §§ 2369-2373 (1971). However, past Mississippi practice has
tempered this harsh result by allowing dismissed cases to be reinstituted, except in extreme
situations. See, e. g, Ross v. Milner, 194 Miss. 497, 505-06, 12 So.2d 917, 918 (1943) (where
order did not recite that cause was dismissed without prejudice, it was considered as being
dismissed with prejudice); Peoples Bank v. D'Lo Royalties, Inc., 206 So.2d 836, 837 (Miss.1968)
(dismissal is a drastic punishment which should not be invoked except where conduct of parties
has been so deliberately careless as to call for such action).
Rule 41(c) provides that the other subdivisions of Rule 41, stating the procedures for and
consequences of dismissals, apply to the dismissal of a counter-claim, cross-claim, or third-party
claim.
One exception is allowed for Rule 41(c) matters because the right of voluntary dismissal
with notice, MRCP 41(a)(1), is terminated by an answer. This will not work for counter-claims,
cross-claims, or third-party claims, since defendant will ordinarily assert these with or subsequent
129
to his answer. Accordingly, Rule 41(c) provides that a voluntary dismissal by a defendant, or
other claimant, of a counter-claim, cross-claim, or third-party claim must be made before a
responsive pleading is served or, if none, before the introduction of evidence at the trial. MRCP
41(a)(1) also provides that the service of a motion for summary judgment also terminates the
right to dismiss by notice. As a matter of logic and judicial consistency, if a motion for summary
judgment defeats plaintiff's right to dismiss, then it should also defeat the right of a defendant to
dismiss his counter-claim, cross-claim, or third-party claim. See 9 Wright & Miller, supra, §
2374.
Rule 41(d) authorizes the clerk to move for dismissal of cases in which there has been no
action of record during the preceding 12 months. The clerk is required to give notice of such
action to the opposing parties who may counter the clerk's motion to retain the case on the court's
docket. This provision supersedes Miss. Code Ann. § 11-53-25 (1972) (clerk shall move for
dismissal of any cause pending in which no action has been taken for the two preceding terms).
The statute did not require notice of the dismissal -- the parties were deemed to be before the
court in cases pending on the active docket. Ross v. Milner, supra. If a court has implemented
the Mississippi Electronic Court System, the notice required by Rule 41(d) may be sent in the
same manner as other notices consistent with the Mississippi Electronic Court System
procedures. Please refer to the Administrative Procedures for Mississippi Electronic Court
System on the Supreme Court’s website at www. mssc.state.ms.us.
Under Rule 41(e), if a plaintiff who has once dismissed an action in any court commences
another action on the same claim against the same defendant, the court may require the payment
of costs in the prior action before proceeding with the latter. The matter is discretionary with the
court. Rule 41(e) by its terms is applicable only when the plaintiff "has once dismissed an
action"; thus, it does not cover cases in which there was an involuntary dismissal of the prior
action by the court. This accords with prior practice pursuant to Miss. Code Ann. §§ 11-7-127
and 11-53-25 (1972).
130
RULE 42. CONSOLIDATION: SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any matters in issue in the actions; it may
order all the actions consolidated; and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.
(b) Separate Trial. The court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy, may order a separate trial of
any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any
number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving
inviolate the right of trial by jury as declared by Section 31 of the Mississippi Constitution of
1890.
[Amended February 20, 2004 to correct scrivener’s error.]
Comment
The purpose of Rule 42 is to give the court broad discretion to decide how cases on its
docket are to be tried so that the business of the court may be dispatched with expedition and
economy while providing justice to the parties. To this end, Rule 42(a) permits consolidation and
a single trial of several cases on the court's docket, or of issues within those cases, while Rule
42(b) allows the court to order separate trials of particular issues within a single case.
Consolidation of actions presenting a common issue of law or fact is permitted as a matter
of trial convenience and judicial economy. The court is given broad discretion to decide whether
consolidation would be desirable; the consent of the parties is not required. It is for the court to
weigh the savings of time and effort that consolidation would produce against any inconvenience,
delay, or expense that it would cause.
Although the courts take a favorable view of consolidation, the mere fact that a common
question is present, and that consolidation is therefore permissible under Rule 42(a), does not
mean that the court must order consolidation. Consolidation may be denied if the common issue
is not a central one, or if consolidation will cause delay, or will lead to confusion or prejudice.
In exercising its discretion to consolidate cases or particular issues, the court must recognize that
131
on some issues consolidation may be prejudicial. To avoid prejudice, consolidation should be
invoked only where the issues of law or fact justifying consolidation predominate over individual
issues which will be heard in the consolidated proceedings. The additional expense that
consolidation may cost to some of the parties is a factor to be considered though it is not
necessarily conclusive. A motion to consolidate may be made as soon as the issues become
apparent, even though not yet formally joined. A motion is not required, however, since the court
may order consolidation on its own motion. Separate cases should not be jointly considered
without an order of consolidation.
Consolidation is not new to Mississippi practice. See Vicksburg Chemical Co. v. Thornell,
355 So.2d 299 (Miss. 1978) (object of consolidating actions is to avoid a multiplicity of suits,
to prevent delay, to clear congested dockets, to simplify the work of the trial court, and to save
numerous costs and expenses); Planter's Oil Mill v. Yazoo & M. V.R.R. Co., 153 Miss. 712,
717-18, 121 So. 138, 140 (1929) (proper conditions existing, the court may consolidate actions
on its own motion or on the motion of either party); Stoner v. Colvin, 236 Miss. 736, 748-49, 110
So.2d 920, 924 (1959) (courts possess an inherent power to consolidate appropriate actions); V.
Griffith, Mississippi Chancery Practice, § 506 (2d ed. 1950) (consolidation by agreement entered
on record by solicitors of parties, or by motion of any party, or by the court of its own motion;
court has duty to consolidate appropriate actions). The court has complete discretion within the
bounds of justice and its jurisdiction to consolidate whatever issues it deems expeditious or
economical to consolidate. Stoner v. Colvin, supra (trial court in its sound discretion has a right
to consolidate for trial separate actions by different plaintiffs against common defendants for
damages arising out of the same accident; this rule applies to both law and equity actions);
Columbus & G. Ry. Co. v. Mississippi Clinic, 152 Miss. 869, 871, 120 So.2d 187, 188 (1929)
(consolidation in court of law, of two separate actions on appeal from justice of the peace court,
where interests of expediency and economy would be served, merges several actions into one
action with but one judgment); but See Stoner v. Colvin, supra (in court of law separate
instructions were rendered in two actions which had been consolidated for trial); and Elliott v.
Harrigill, 241 Miss. 877, 882, 133 So.2d 612, 614 (1961) (consolidation of causes in equity does
not make parties to one cause parties to the other, and separate decrees are entered, unless the
nature of matters be such that it is clearly proper to include them in one decree); V. Griffith,
supra § 506 (equity cases preserve identity of the causes, pleadings are carried on as if no
consolidation had arisen, and separate decrees are issued); Wilborn v. Wilborn, 258 So.2d 804,
806 (Miss. 1972) (refusal to consolidate divorced wife's citation for contempt and husband's
petition to modify child support decree was within court's discretion). The granting or denying
of an order of consolidation is not a final judgment and thus is not appealable. See Miss. Code
Ann. § 11-51-3 (1972) (final judgments or decrees appealable).
Rule 42(b) allows the courts to order a separate trial of any claim, cross-claim,
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counter-claim, or third-party claim, or of any separate issue or of any number of claims or issues.
The court may do so in furtherance of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy. The procedure authorized by Rule 42(b) may be
distinguished from severance under Rule 21 as follows: Separate trials will usually result in one
judgment; but severed claims become entirely independent actions to be tried and judgment will
be entered thereon independently.
The provision for separate trials in Rule 42(b) is intended to further convenience, avoid
delay and prejudice, and serve the ends of justice. It is the interest of efficient judicial
administration that is to be controlling, rather than the wishes of the parties. The piecemeal trial
of separate issues in a single suit is not to be the usual course. It should be resorted to only in the
exercise of informed discretion when the court believes that separation will achieve the purposes
of the rule.
If a single issue could be dispositive of the case, and resolution of it might make it
unnecessary to try the other issues, separate trial of that issue may be desirable to save the time
of the court and reduce the expenses of the parties. If, however, the preliminary and separate trial
of an issue will involve extensive proof and substantially the same facts as the other issues, or if
any saving in time and expense is wholly speculative, a separate trial should be denied. A
separate trial may also be ordered to avoid prejudice, as where evidence admissible only on a
certain issue may prejudice a party in the minds of the jury on other issues. For example, this
principle may be applied, and a separate trial ordered though a single trial would otherwise be
preferable, because in a single trial the jury would learn that defendant is insured. The possibility
of such prejudice, however remote, justifies a separate trial if the issues are so unrelated that there
is no advantage in trying them together. But if the issues are related, there is considerable
authority to the effect that jurors today assume the presence of insurance, that knowledge of the
fact of insurance is therefore not prejudicial, and that a separate trial should not be ordered.
Ultimately the question of separate trials should be, and is, within the discretion of the trial
court. It must weigh whether one trial or separate trials will best serve the convenience of the
parties and court, avoid prejudice, and minimize expense and delay. The major consideration,
of course, must be which procedure is more likely to result in a just, final disposition of the
litigation.
Any party may move for a separate trial. The motion may properly be made at a pre-trial
conference; a motion is not required, however. The court may order a separate trial on its own
motion. See Sherman v. Stewart, 216 Miss. 549, 556, 62 So.2d 876, 877-78 (1953) (although the
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submission for one trial of the issues of accord and satisfaction and the denial of the debt would
have been better, the question of separate trials is a question within the sound discretion of the
trial judge); Christopher v. Brown, 211 Miss. 322, 329, 51 So.2d 579, 582 (1951) (to prevent
undue expense and loss of time and delay, discretion is vested in the trial judge to determine
when and in what cases separate hearings may be had). An example is when a single issue could
dispose of the case and make trial of the other issues unnecessary. See Miss. Code Ann. §
11-7-59 (1972) (defense which used to be set up in a plea but is set up in the answer in such a
manner as to be clearly distinct and readily separable, and which goes to the entire cause of
action, may on motion of either party be separately disposed of before the principal trial of the
cause, in the sound discretion of the court). As with MRCP 42(a), an order granting or denying
separate trials under 42(b) is not appealable as a final judgment. See 9 Wright & Miller, Federal
Practice and Procedure, Civil §§ 2381-2392 (1971); 5 Moore's Federal Practice ¶¶ 42.02-.03
(1974).
[Comment amended February 20, 2004.]
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RULE 43. TAKING OF TESTIMONY
(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally
in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.
(b) [Abrogated].
(c) [Abrogated].
(d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be
taken, a solemn affirmation may be accepted in lieu thereof.
(e) Evidence on Motions. When a motion is based on facts not appearing of record the
court may hear the matter on affidavits presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral testimony or depositions.
(f) Interpreters. The court may appoint an interpreter of its own selection and may fix
his reasonable compensation. The compensation shall be paid out of funds provided by law or
by one or more of the parties as the court may direct and may be taxed ultimately as costs, in the
discretion of the court. However, in the event and to the extent that such interpreters are required
to be provided under the provisions of the Americans with Disabilities Act, 42 U.S. C. § 12131,
et seq. or under rules or regulations promulgated pursuant thereto, such compensation and other
costs of compliance shall be paid by the county in which the court sits, and shall not be taxed as
costs.
[Amended effective January 10, 1986; amended June 5, 1997.]
Advisory Committee Historical Note.
Effective July 1, 1998, Rule 43(f) was amended in regard to compliance with the
Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.
Effective January 10, 1986, Rule 43(a) was amended to provide that testimony may be
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taken other than in open court, as provided by the Mississippi Rules of Evidence, and to delete
references to the admissibility of evidence; Rule 43(b) [Mode and Order of Interrogation], and
Rule 43(c) [Record of Excluded Evidence] were abrogated. 478-481 So. 2d XXVII (West Miss.
Cas. 1986).
Comment
Rule 43 is patterned in part after Federal Rule 43. Implicit in Rule 43 is a recognition of
the controlling power of the Mississippi Rules of Evidence, which became effective January 1,
1986.
The admission of telephonic testimony in lieu of a personal appearance in open court by
the witness is within the sound discretion of the trial court. Byrd v. Nix, 548 So.2d 1317
(Miss.1989).
Rules 43(b) and 43(c), which were originally adopted by the Supreme Court of Mississippi
in 1981, have been abrogated by the later adoption of the Mississippi Rules of Evidence. The
contents of former Rule 43(b)(1) are now found in Rule 611(a) of the Mississippi Rules of
Evidence. Former Rule 43(b)(2) corresponds to Rule 611(b) of the Mississippi Rules of
Evidence and former Rule 43(b)(3) is now found in Rule 611(c). Former Rule 43(b)(4) had
previously abolished the voucher rule in civil cases. Rule 607 of the Mississippi Rules of
Evidence completes the abolition of the voucher rule by abolishing the rule in criminal cases.
Rule 43(c), which pertained to an offer of proof, has been abrogated. Rules 103(a)(2),
103(b), and 103(c) of the Mississippi Rules of Evidence now govern.
Rule 43(d) provides that whenever an oath is required to be taken, a solemn affirmation
may be accepted in lieu of the oath. This is in accordance with traditional Mississippi practice.
This rule is consistent with Rule 603 of the Mississippi Rules of Evidence.
Rule 43(e) provides that motions based on facts not appearing of record may be heard on
affidavit, although the court retains power to direct that they be heard wholly or partly on oral
testimony or depositions. Thus the court may rely on affidavit on a motion to dismiss, a motion
to quash service of process, a motion challenging the jurisdiction of the court, a motion for
summary judgment, or a motion for a new trial.
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The provision that the court may direct that motions be heard in whole or in part on oral
testimony or depositions is permissive and not mandatory. Motions are usually decided on the
papers rather than after oral testimony of witnesses. Although oral testimony may be heard on
a motion for summary judgment, the court need not allow this, and its authority to do so should
be exercised with care. The purpose of summary judgment -- i. e. giving a speedy adjudication
in cases that present no genuine issue of fact -- is defeated if the hearing on the motion becomes
a preliminary trial. 9 Wright & Miller, supra § 2416.
Rule 43(f) allows the court to appoint an interpreter of its own selection. The rule speaks
in general terms and gives the court discretion to determine when it is appropriate to appoint an
interpreter. The compensation is to be paid out of funds provided by law or by one or more of
the parties as the court may direct, and may be taxed ultimately as cost in the discretion of the
court.
An interpreter should be qualified by knowledge, skill, experience, training, or education
to act in that capacity. He should take an oath or affirmation that he will make a true translation.
9 Wright & Miller, supra § 2417.
Rule 43(f) should be read in conjunction with Rule 604 of the Mississippi Rules of
Evidence.
[Amended effective January 10, 1986; March 13, 1991.]
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RULE 44. PROOF OF DOCUMENTS
(a) Authentication.
(1) Domestic. An official record kept within the United States or any state, district,
commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the
Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by a
person purporting to be the officer having the legal custody of the record, or his deputy. If the
official record is kept outside the State of Mississippi, the copy shall be accompanied by a
certificate under oath of such person that he is the legal custodian of such record and that the
record is kept pursuant to state law.
(2) Foreign. A foreign official record, or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof, or a copy thereof, attested by a
person authorized to make the attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (i) of the attesting person or (ii) of any foreign
official whose certificate of genuineness of signature and official position relates to the
attestation or is in a chain of certificates of genuineness of signature and official position relating
to the attestation. A final certification may be made by a secretary of an embassy or legation,
consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or
consular official of the foreign country assigned or accredited to the United States. If reasonable
opportunity has been given to all parties to investigate the authenticity and accuracy of the
documents, the court may, for good cause shown, (i) admit an attested copy without final
certification or (ii) permit the foreign official record to be evidenced by an attested summary with
or without a final certification.
(b) Lack of Record. A written statement that after diligent search no record or entry of
a specified tenor is found to exist in the records designated by the statement, authenticated as
provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the
requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is
admissible as evidence that the records contain no such record or entry.
(c) This rule does not prevent the proof of official records or of entry or lack of entry
therein by any other method authorized by law.
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Comment
The purpose of this rule is to provide a simple and uniform method of proving public
records and entry or lack of entry therein.
Rule 44 is a codification of rules for proving official records. Its limited purpose should
be clearly understood: Both subdivisions (1) and (2) of Rule 44(a) state that official records
"when admissible for any purpose" may be evidenced by the procedures there set out. Rule 44
has not attempted to state what the existence or nonexistence of any official record tends to
prove; Rule 44 prescribes how such records are to be qualified for admission in evidence when
considered probative of some proposition in the case. Even though a document has been
authenticated as required by this rule, it may still be excluded from evidence if, for example, it
is irrelevant, or is hearsay, or is otherwise objectionable.
If an official record is otherwise admissible, Rule 44 creates an exception to the
documentary originals rule by allowing a copy to be used in place of the original and states
several ways in which the copy or record may be authenticated. Even though a document may
be an official record and even though it may be within an exception to the hearsay rule, it cannot
be admitted unless authenticated as required by this rule by some other permissible means. The
methods of authentication authorized by Rule 44 are additional and supplementary; they are not
exclusive of other methods made available by Mississippi law. A party desiring to introduce an
official record in evidence has the option of proceeding under Rule 44 or under any other
applicable provision of law (See the listing of Mississippi Code sections at the end of this
comment).
The key term in Rule 44 is "official record;" the term is not defined but should cause no
difficulty. An official record need not be a public record in the sense that it is open to public
inspection; the term in the counterpart federal rule was defined in one early case in which it was
said that "official" means "work done by a person in the employment of the government in the
course of the performance of the duties of his positions" and that "record" refers to papers,
demands, and writings made in the regular course of business. United States v. Aluminum Co.
of America, 1 F.R.D. 71, 75-76 (D.C.N.Y.1939). A more helpful approach, rather than defining
the term, is to read it as applicable to any document that would be admissible under the official
records exception to the hearsay rule. See Ludlow Corp. v. Arkwright-Boston Mfrs. Mut. Ins. Co.,
317 So.2d 47 (Miss.1975).
Rule 44(a)(1) deals with two types of official documents; those kept within the state and
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those kept without the state. A copy of the document need only be attested in the former case,
certified under oath in the latter. See, e. g., Miss. Code Ann. § 13-1-77 (1972) (public officers
of this state need only certify copies to make them competent); Middleton v. State, 214 Miss. 697,
699, 59 So.2d 320, 321 (1952) (copy certified by commissioner of public safety was deemed
competent); Vincent v. State, 200 Miss. 423, 427, 27 So.2d 556, 556-57 (1946) (certified copy
by justice of the peace admissible); and § 13-1-81 (certificate, attestation, or authentication
purportedly given by officer of any state or United States is prima facie evidence of official
character); § 13-1-79 (copies certified by U.S. officer); § 13-1-99 (copies certified by officers
of other states).
Rule 44(a)(2) provides for the authentication of official records of foreign origin by one
of four methods: (1) official publication; (2) attested copy; (3) chain-certificate, all accompanied
by a final certificate; and, (4) discretion of the court to admit without final certification with a
showing of good cause by the proponent. See Miss. Code Ann. § 13-1-101 (1972) (copies of
foreign law or record admissible when certified by officer having custody and authenticated by
certificate by public minister, secretary of legation, or consul of the United States).
Rule 44(b) allows the proving of lack of record by simply stating in writing that the record
was not found, and by authentication in the same method as for an official record. See Miss.
Code Ann. § 13-1-83 (1972) (certificate by official custodian that record cannot be found is
admissible).
Rule 44(c) makes it clear that these rules are additional and supplementary and are not
exclusive. The following Mississippi Code Annotated (1972) references should also be
consulted: §§ 13-1-77 through -117.
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RULE 44.1 [DETERMINATION OF FOREIGN
LAW] [OMITTED]
Comment
Rule 44.1 is omitted from the Mississippi Rules of Civil Procedure because it is more a
rule of evidence than of procedure and because Mississippi already has an excellent method for
determining the law of foreign jurisdictions: Miss. Code Ann. § 13-1-149 (1972) provides that
courts shall take judicial notice of all foreign law. See Parker v. McCaskey Register Co., 177
Miss. 347, 171 So. 337 (1936).
141
RULE 45. SUBPOENA
(a) Form; Issuance.
(1) Every subpoena shall be issued by the clerk under the seal of the court, shall state the
name of the court and the title of the action, and shall command each person to whom it is
directed to attend and give testimony, or to produce and permit inspection and copying of
designated books, documents or tangible things in the possession, custody or control of that
person, or to permit inspection of premises, at a time and place therein specified. The clerk shall
issue a subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill
it in before service. A command to produce or to permit inspection may be joined with a
command to appear at trial or hearing or at deposition, or may be issued separately.
(2) Subpoenas for attendance at a trial or hearing, for attendance at a deposition, and for
production or inspection shall issue from the court in which the action is pending.
(3) In the case of discovery to be taken in foreign litigation, the subpoena shall be issued
by a clerk of a court for the county in which the discovery is to be taken. The foreign subpoena
shall be submitted to the clerk of court in the county in which discovery is sought to be conducted
in this state. When a party submits a foreign subpoena to a clerk of court in this state, the clerk,
in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the
person to which the foreign subpoena is directed.
The subpoena under subsection (3) must incorporate the terms used in the foreign
subpoena and it must contain or be accompanied by the names, addresses, and telephone numbers
of all counsel of record in the proceeding to which the subpoena relates and any party not
represented by counsel.
A subpoena issued by a clerk of court under subsection (3) must otherwise be issued and
served in compliance with the rules of this state. An application to the court for a protective
order or to enforce, quash or modify a subpoena issued by a clerk of court under subsection (3)
must comply with the rules of this state and be submitted to the issuing court in the county in
which discovery is to be conducted.
(b) Place of Examination. A resident of the State of Mississippi may be required to
attend a deposition, production or inspection only in the county wherein he resides or is employed
or transacts his business in person, or at such other convenient place as is fixed by an order of the
court. A non-resident of this state subpoenaed within this state may be required to attend only
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in the county wherein he is served, or at such other convenient place as is fixed by an order of the
court.
(c) Service.
(1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who
is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima
facie proof of service, or the person served may acknowledge service in writing on the subpoena.
Service of the subpoena shall be executed upon the witness personally. Except when excused by
the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a
non-party witness at the time of service the fee for one day's attendance plus mileage allowed by
law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency
thereof, fees and mileage need not be tendered in advance.
(2) Proof of service shall be made by filing with the clerk of the court from which the
subpoena was issued a statement, certified by the person who made the service, setting forth the
date and manner of service, the county in which it was served, the names of the persons served,
and the name, address and telephone number of the person making the service.
(d) Protection of Persons Subject to Subpoenas.
(1) In General.
(A) On timely motion, the court from which a subpoena was issued shall quash or modify
the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires disclosure of
privileged or other protected matter and no exception or waiver applies, (iii) designates an
improper place for examination, or (iv) subjects a person to undue burden or expense.
(B) If a subpoena (i) requires disclosure of a trade secret or other confidential research,
development, or commercial information, or (ii) requires disclosure of an unretained expert's
opinion or information not describing specific events or occurrences in dispute and resulting from
the expert's study made not at the request of any party, the court may order appearance or
production only upon specified conditions.
(2) Subpoenas for Production or Inspection.
(A) A person commanded to produce and permit inspection and copying of designated
books, papers, documents or tangible things, or to permit inspection of premises need not appear
in person at the place of production or inspection unless commanded by the subpoena to appear
for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a
subpoena for production or inspection shall allow not less than ten days for the person upon
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whom it is served to comply with the subpoena. A copy of all such subpoenas shall be served
immediately upon each party in accordance with Rule 5. A subpoena commanding production
or inspection will be subject to the provisions of Rule 26(d).
(B) The person to whom the subpoena is directed may, within ten days after the service
thereof or on or before the time specified in the subpoena for compliance, if such time is less than
ten days after service, serve upon the party serving the subpoena written objection to inspection
or copying of any or all of the designated materials, or to inspection of the premises. If objection
is made, the party serving the subpoena shall not be entitled to inspect and copy the material
except pursuant to an order of the court from which the subpoena was issued. The party serving
the subpoena may, if objection has been made, move at any time upon notice to the person served
for an order to compel the production or inspection.
(C) The court, upon motion made promptly and in any event at or before the time
specified in the subpoena for compliance therewith, may (I) quash or modify the subpoena if it
is unreasonable or oppressive, or (ii) condition the denial of the motion upon the advance by the
person in whose behalf the subpoena is issued of the reasonable cost of producing the books,
papers, documents, or tangible things.
(e) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they
are kept in the usual course of business or shall organize and label them to correspond with the
categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or
subject to protection as trial preparation materials, the claim shall be made expressly and shall
be supported by a description of the nature of the documents, communications, or things not
produced that is sufficient to enable the demanding party to contest the claim.
(f) Sanctions. On motion of a party or of the person upon whom a subpoena for the
production of books, papers, documents, or tangible things is served and upon a showing that the
subpoena power is being exercised in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the party or the person upon whom the subpoena is served, the court in
which the action is pending shall order that the subpoena be quashed and may enter such further
orders as justice may require to curb abuses of the powers granted under this rule. To this end,
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the court may impose an appropriate sanction.
(g) Contempt. Failure by any person without adequate excuse to obey a subpoena served
upon him may be deemed a contempt of the court from which the subpoena issued.
[Amended effective March 13, 1991; July 1, 1997; July 1, 1998; amended effective July 1, 2009
to provide a procedure for foreign subpoenas. This provision shall take effect and be in force
from and after July 1, 2009, and applies to requests for discovery in cases pending on July 1,
2009.]
Advisory Committee Historical Note
Effective March 13, 1991, Rule 45(c) was amended to require the party causing a
subpoena to issue to tender to a non-party witness the fee for one day’s attendance plus mileage
allowed by law. Rule 45(e) was amended by deleting the provision for tendering the fee for one
day’s attendance plus the mileage allowed by law to certain witnesses when subpoenaed. Rule
45(d) was amended to provide that when a deposition is to be taken on foreign litigation the
subpoena shall be issued by the clerk for the county in which the deposition is to be taken. 574­
576 So. 2d XXIV-XXV (West Miss. Cas. 1991).
Effective July 1, 1997 a new Rule 45 was adopted.
Comment
A "subpoena" is a mandate lawfully issued under the seal of the court by the clerk thereof.
Its function is to compel the attendance of witnesses, the production of documents and the
inspection of premises so that the court may have all available information for the determination
of controversies. 9 Wright & Miller, Federal Practice and Procedure, Civil § 2451 (1971).
Subpoenas are of two types: a subpoena ad testificandum compels the attendance of a
witness; a subpoena duces tecum compels the production of documents and things. Both kinds
of subpoenas may be issued either for the taking of a deposition or for a trial or hearing; Rule 45
governs the availability and use of both kinds of subpoenas. The rule has no application to
subpoenas issued in support of administrative hearings or by administrative agencies; those
subpoenas are governed by statute. See, e. g., Miss. Code Ann. § 5-1-21 (witnesses before
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legislative bodies); § 7-1-49 (examiner of public accounts); § 19-3-51 (county boards of
supervisors); § 27-3-35 (tax commission); § 31-3-13(c) (state board of public contracts); §
43-9-13 (old age assistance investigations); § 43-11-11 (investigations of institutions for the aged
or infirm); § 43-13-121 (medicaid commission); § 43-33-11 (housing authority); § 49-1-43
(wildlife, fisheries and parks board); § 49-17-21 (air and water pollution board); § 51-3-51
(water commission); § 53-1-35 (oil and gas board); § 59-21-127 (boat and water safety
commission); § 61-1-35 (aeronautics commission); § 63-1-53 (hearings to suspend driver's
license); § 63-17-97 (motor vehicle commission); § 63-19-29 (motor vehicle sales finance law
administrator); § 67-1-37 (alcoholic beverage commission); § 73-7-27 (cosmetology license
revocation or suspension); § 73-13-15 (engineer and land surveyor registration board); §
73-21-99 (disciplinary proceedings against pharmacists); § 73-25-27 (disciplinary proceedings
against physicians); § 73-29-37 (disciplinary proceedings against polygraph examiners); §
73-35-23 (disciplinary proceedings against real estate brokers); § 75-35-315 (meat inspections);
§ 75-49-13 (proceedings involving mobile homes); § 75-67-223 (hearings on denials of small
loan licenses); § 75-71-709 (securities regulations hearings); § 77-5-17(4) (board of directors of
rural electrification authority); § 81-1-85 (bank examinations); § 81-13-1 (hearings on denial of
application for license of credit union); § 81-13-17 (examinations of credit union license
applications by department of bank supervision); and § 83-5-39(4) (1972) (hearing on charges
of unfair business practices by insurance companies).
Rule 45(a)(1) provides that a subpoena shall command each person to whom it is directed
to attend and give testimony, or to produce and permit inspection of evidence, or to permit
inspection of premises, and provides further that a command to produce evidence or to permit
inspection may be joined with a command to appear at trial or hearing or at deposition, or may
be issued separately. A subpoena for the attendance of a witness at the taking of a deposition is
issued as of course by the clerk upon proof of service of notice to depose as provided in MRCP
30(b) and 31(a). A notice to depose is not a condition precedent to the issuance of a subpoena
for production or inspection.
Under Rule 45(a)(2), all subpoenas (except those pertaining to foreign litigation) shall be
issued from the court in which the action is pending and may be served anywhere in the State.
Subpoenas for depositions in foreign litigation must be issued by a clerk of a court for the county
in which the deposition is to be taken. However, a Mississippi resident may be subpoenaed to
attend an examination only in a county where he resides, or is employed or transacts business in
person, unless the court fixes another convenient place. A nonresident subpoenaed within the
State may be required to attend only in the county where he is served, unless the court fixes
another convenient place. Rule 45(b).
146
A “foreign subpoena” means a subpoena issued under authority of a court of record of a
foreign jurisdiction. “Foreign jurisdiction” means a state other than this state.
See the exclusion in Rule 46(b)(11)(i) of the Rules of Appellate Procedure Admission of
Foreign Attorneys Pro Hac Vice.
Rule 45(c)(1) authorizes that subpoenas may be served by a sheriff, his deputy, or any
person not a party over the age of eighteen years; this provision permits attorneys to serve
subpoenas. The proof of service required by paragraph (c)(2) must show, inter alia, the county
in which the subpoena was served, in order to ascertain where a nonresident may be required to
appear for examination in accordance with Rule 45(b).
Rule 45(c) requires advance payment of statutory witness fees and mileage; this subsection
is complementary to Miss. Code Ann. §§ 25-7-47 through 25-7-59 (1972).
Rule 45(d)(1) sets out the grounds for objecting to any type of subpoena.
Rule 45(d)(2) sets out additional protections available to persons subject to subpoenas for
production or inspection. Subsection (d)(2)(A) is intended to ensure that there be no confusion
as to whether a person not a party in control, custody, or possession of discoverable evidence can
be compelled to produce such evidence without being sworn as a witness and deposed. Further,
a subpoena shall allow not less than 10 days for production or inspection, unless the court for
good cause shown shortens the time. The subpoena must specify with reasonable particularity
the subjects to which the desired writings relate. The force of a subpoena for production of
documentary evidence generally reaches all documents under the control of the person ordered
to produce, saving questions of privilege or unreasonableness.
Paragraph (d)(2)(A) requires that the party serving a subpoena for production or inspection
must serve a copy of the subpoena upon all parties to the action immediately after it is served on
the person to whom it is directed. Thus, the rule does not contemplate that the party serving a
subpoena may delay serving a copy of the subpoena on the other parties to the action until 10
days before the date designated for the production or inspection. A failure to immediately serve
a copy of the subpoena on the other parties may be grounds for extending the time for compliance
with the subpoena. Service must be made in accordance with Rule 5.
147
A subpoena for production or inspection is also subject to the provisions of Rule 26(d).
Paragraph 45(d)(2)(C), provides that upon motion the court may (1) quash or modify the
subpoena if it is unreasonable or oppressive, or (2) condition the denial of the motion upon the
advancement by the person in whose behalf the subpoena is issued of the reasonable cost of
producing the books, papers, documents, or tangible things. A subpoena duces tecum is subject
to a motion, as just described, and is also subject to the provision for protective orders in Rule
26(c).
Rule 45(e) ,which specifies the duties of persons served with a subpoena, does not require
the witness to prepare papers for the adverse party or to compile information contained in the
documents referred to, but only to produce designated documents. If the subpoena calls for
relevant information which must be compiled or selected from records which are largely
irrelevant or privileged, the party compelling production should be required to bear the expense
of extracting the relevant material. See 5A Moore's Federal Practice, ¶45.05(1) (1975); Ulrich
v. Ethyl Gasoline Corp., 2 F.R.D. 357 (W.D.Ky.1942).
The court is authorized by Rule 45(f) to impose an appropriate sanction on a party who
is shown to have exercised the subpoena power in bad faith or in such manner as unreasonably
to annoy, embarrass, or oppress the party or the person upon whom the subpoena is served, which
ordinarily will include attorney’s fees and costs, and may also include compensation for wages
lost by a witness in objecting to the subpoena.
Disobedience of a subpoena without adequate excuse may be punished as a contempt of
the court. MRCP 45(g). An order for contempt may require the person subject to the subpoena
to pay the attorney’s fees and costs incurred by the party seeking to enforce the subpoena. The
rule leaves undefined what is an adequate excuse for failure to obey a subpoena. Adequate
excuse would exist when a subpoena purports to require a non-party to attend or produce at a
place not within the limits provided by paragraph (b).
[Comment amended effective March 13, 1991; April 18, 1995; July 1, 1997; July 1, 1998; July
1, 2009.]
RULE 46. EXCEPTIONS UNNECESSARY
148
An exception at any stage or step of the case or matter is unnecessary to lay a foundation
for review whenever a matter has been called to the attention of the court by objection, motion,
or otherwise and the court has ruled thereon. However, if a party has no opportunity to object
to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice
him.
Comment
Rule 46 is an adaptation of Miss. Code Ann. § 9-13-31 (1972) and conforms to traditional
Mississippi practice. This rule does not repeal or modify the cited statute; an objection noted in
the record of a trial or hearing and the court's ruling thereon is sufficient to preserve the matter
for appellate review. However, the bill of exception is still necessary to preserve for appellate
review matters not appearing of record. See, e. g., Benjamin v. Virginia-Carolina Chem. Co., 126
Miss. 57, 87 So. 895 (1921); Alexander v. Hancock, 174 Miss. 482, 164 So. 772, 165 So. 126
(1935).
149
RULE 47. JURORS
(a) Examination of Jurors. Any person called as a juror for the trial of any cause shall
be examined under oath or upon affirmation as to his qualifications. The court may permit the
parties or their attorneys to conduct the examination of the prospective jurors or may itself
conduct the examination. In the latter event, the court shall permit the parties of their attorneys
to supplement the examination by further inquiry.
(b) Selection of Jurors; Jury Service. Jurors shall be drawn and selected for jury service
as provided by statute.
(c) Challenges. In actions tried before a 12-person jury, each side may exercise four
peremptory challenges. In actions tried before a 6-person jury, each side may exercise two
peremptory challenges. Where one or both sides are composed of muliple parties, the court may
allow challenges to be exercised separately or jointly, and may allow additional challenges;
provided, however, in all actions the number of challenges allowed for each side shall be
identical. Parties may challenge any juror for cause.
(d) Alternate Jurors. The trial judge may, in his discretion, direct that one or two jurors
in addition to the regular panel be called and empaneled to sit as alternate jurors. Alternate
jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury
retires to consider its verdict, become unable or disqualified to perform their duties. Alternate
jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to
the same examination and challenges for cause, shall take the same oath and shall have the same
functions, powers, facilities, and privileges as the regular jurors. Each party shall be allowed one
peremptory challenge to alternate jurors in addition to those provided by subdivision (c) of this
rule. The additional peremptory challenges provided for herein may be used against an alternate
juror only, and other peremptory challenges, provided by subdivision (c) of this rule, may not be
used against an alternate juror.
[Amended effective June 24, 1992.]
Advisory Committee Historical Note
Effective June 24, 1992, Rule 47 was amended to provide that the court may allocate
peremptory challenges to a side, rather than to a party, and, in the case of multiple parties on a
side, may allow them to be exercised jointly or separately, and may allow additional peremptory
150
challenges. 598-602 So. 2d XXIII (West Miss. Cas. 1992).
Comment
Rule 47(a) requires that jurors be examined under oath as to their qualifications; the
examination may be by the court or by the attorneys (or parties, if unrepresented). In no event
can the court deny counsel their right to examine jurors; such probably would constitute
reversible error under Miss. Code Ann. § 13-5-69 (1972).
Rule 47(b) provides that the drawing and selecting of trial jurors shall be as provided by
statute. See Miss. Code Ann. §§ 13-5-2 et seq. (1972).
Rule 47 (c) provides that each side may exercise peremptory challenges to prospective
jurors. Under the liberal provisions of these rules for joinder of claims and parties, problems may
arise where there are multiple parties on a side, or deep divisions of interest among parties
comprising a side. In such cases, it is implicit that the court may apportion the challenges among
the parties comprising that side when they cannot agree on the apportionment themselves.
Rule 47(d) is adapted from Miss. Code Ann. § 13-5-67 (1972) and tracks prior practice
for empaneling alternate jurors.
[Amended April 18, 1995.]
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RULE 48. JURIES AND JURY VERDICTS
(a) Circuit and Chancery Courts. Jurors in circuit and chancery court actions shall
consist of twelve persons, plus alternates as provided by Rule 47(d). A verdict or finding of nine
or more of the jurors shall be taken as the verdict or finding of the jury.
(b) County Court. Juries in county court actions shall consist of six persons, plus
alternates as provided by Rule 47(d). A verdict or finding of five or more of the jurors shall be
taken as the verdict or finding of the jury.
Comment
The purpose of Rule 48 is to promote trial convenience and efficiency by providing for
smaller juries and non-unanimous verdicts.
Rule 48(a) provides that in circuit and chancery courts a decision of nine of the twelve
jurors shall be the verdict. A doctrine consistent with past Mississippi procedure. See Miss.
Code Ann. § 13-5-93 (1972) (nine or more jurors may return verdict in civil suits in chancery and
circuit courts). Ulmerr v. Pistole, 115 Miss. 485, 76 So. 522 (1917).
The six-man jury is required in county courts by Rule 48(b); provision is made for a
non-unanimous verdict. Cf. Miss. Code Ann. § 9-9-33 (1972) (county court jury shall consist of
twelve, any nine of whom can return a verdict in a civil case).
Traditionally, Mississippi civil practice has required the use of twelve-person juries. See
Brame v. Garwood, 339 So.2d 978 (Miss. 1976) (trial court erred in permitting action to be tried
to eleven-person jury, over defendant's objection, after juror was excused for personal reasons);
Dement v. Summer, 175 Miss. 290, 165 So. 791 (1936) (trial by jury is universally held to mean
a jury of twelve persons); Tillman v. Ailles, 13 Miss. 373 (1845) (verdict by a less number than
twelve would be void, but a verdict of a greater number than twelve is not so on that account);
but cf. Wolfe v. Martin, 2 Miss. 30 (1834) (a jury of thirteen persons empaneled to try an issue
is an illegal jury). Rule 48 supersedes Mississippi case authority mandating twelve-person juries
in county courts and repeals Miss. Code Ann. § 9-9-33 (1972) (juries in county court actions to
consist of twelve persons), but has no application to county courts when convened as a special
court of eminent domain. See Miss. Code Ann. § 11-27-13 (1972) (in eminent domain
152
proceedings a jury of twelve shall be empaneled).
153
RULE 49. GENERAL VERDICTS AND SPECIAL VERDICTS
(a) General Verdicts. Except as otherwise provided in this rule, jury determination shall
be by general verdict. The remaining provisions of this rule should not be applied in simple cases
where the general verdict will serve the ends of justice.
(b) Special Verdict. The court may require a jury to return only a special verdict in the
form of a special written finding upon each issue of fact. In that event the court may submit to
the jury written questions susceptible of categorical or other brief answer or may submit written
forms of the several special findings which might properly be made under the pleadings and
evidence; or it may use such other method of submitting the issues and requiring written findings
thereon as it deems most appropriate. The court shall give to the jury such explanation and
instruction concerning the matter thus submitted as may be necessary to enable the jury to make
its findings upon each issue. If in so doing the court omits any issue of fact raised by the
pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted
unless before the jury retires he demands its submission to the jury. As to an issue omitted
without such demand the court may make a finding; or if it fails to do so, it shall be deemed to
have made a finding in accord with the judgment on the special verdict.
(c) General Verdict Accompanied by Answers to Interrogatories. The court, in its
discretion, may submit to the jury, together with instructions for a general verdict, written
interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.
The court shall give such explanation or instruction as may be necessary to enable the jury both
to make answers and to render a general verdict. When the general verdict and the answers are
harmonious, the appropriate judgment upon the verdict and answers shall be entered. When the
answers are consistent with each other but one or more is inconsistent with the general verdict,
judgment may be entered consistent with the answers, notwithstanding the general verdict, or the
court may return the jury for further consideration of its answers and verdict or may order a new
trial. When the answers are inconsistent with each other and one or more is likewise inconsistent
with the general verdict, judgment shall not be entered, but the court shall return the jury for
further consideration of its answers and verdict or shall order a new trial.
(d) Court to Provide Attorneys With Questions. In no event shall the procedures of
subdivisions (b) or (c) of this rule be utilized unless the court, within a reasonable time before
final arguments are made to the jury, provides the attorneys for all parties a copy of the written
questions to be submitted to the jury.
[Amended effective March 1, 1989.]
154
Advisory Committee Historical Note
Effective March 1, 1989, Rule 49 was amended to provide for a General Verdict
Accompanied by Answers to Interrogatories in jury trials. 536-538 So. 2d XXVI-XXVII (West
Miss. Cas. 1989).
Comment
The purpose of Rule 49 is to continue the commonly-used general verdict practice in
Mississippi and to also authorize the practice of special verdicts and general verdicts with
interrogatories.
Rule 49(a) makes it clear that in the usual case the general verdict will be used. See Miss.
Code Ann. § 11-7-157 (1972) (no special form of verdict is required).
Rule 49(b) offers, as an alternative to the general verdict, the special verdict, which
requires the jury to make specific written findings on every submitted issue of fact. The special
verdict is not new in Mississippi civil practice; clearly, it was utilized as early as the 1880's in the
civil case of State v. Allen, 69 Miss. 508, 517-18, 10 So. 473, 475 (1891). Apparently, the
special verdict was so accepted as an integral feature of civil litigation in this state that the
reporters (Brame & Alexander) did not deem the supreme court's comments thereon worthy of
headnoting. State v. Allen, supra.
Over the years, however, use of the special verdict appears to have waned; in 1946 the
Supreme Court of Mississippi stated that ". . . there is no provision in our law whereby a litigant
may address interrogatories to a jury and require answers thereto in the form of special verdicts
preparatory to a general verdict, which must be in harmony therewith. After verdict, a jury must
be polled, but not interrogated otherwise." Flournoy v. Brown, 200 Miss. 171, 181, 26 So.2d 351,
355 (1946).
The distinction between special verdicts and jury polls must be borne in mind: the jury poll
still is the only recognized means of ascertaining whether a juror was induced to yield to assent
to a verdict against his conscientious convictions, James v. State ex rel. Doss, 55 Miss. 57, 59
(1877); the special verdict requires that the jury find specifically submitted factual issues. The
jury poll practice will continue to be the only method for asking jurors "Is this your verdict?"
155
At common law the rule was that the special findings of the jury had to cover every
material issue, at pain of judgment against the party carrying the burden of proof. See C. Wright,
Law of Federal Courts § 94 (3d ed. 1976). MRCP 49(b) avoids this pitfall by providing that a
party waives his right to jury trial of any omitted issue unless he demands its submission before
the jury retires. The court may make a finding on such an omitted issue; if the court does not it
will be deemed to have made a finding in accord with the judgment he orders entered.
The use of special verdicts is intended to emphasize the facts, prevent the jury from acting
on bias, and make the law more certain. Their use is always in the discretion of the trial judge,
who must exercise the practice with prudence:
. . . this often-desirable practice should be resorted to with discrimination
and foresight; it should never be used for mere cross-examination of the jury to
create error for the record. Its purpose and best achievement is to enable errors
already potential because of confusions of fact or law "to be localized so that the
sound portions of the verdict may be saved." . . . It is hence best available, when,
as the judge can foresee, the issues can be thus clearly and simply differentiated,
to save an appeal on at least that portion which cannot be questioned; it is of more
doubtful value in a relatively simple factual situation . . . where the details asked
for may not be the whole story. Morris v. Pennsylvania R. Co., 187 F.2d 837, 841
(2d Cir. 1951); C. Wright, supra.
Rule 49(c) provides for general verdicts with interrogatories, a practice that is new to
Misissippi procedure, but that is well known in the federal courts. See Federal Rules of Civil
Procedure Rule 49.
Rule 49(d) requires that the court provide to all counsel copies of the written questions that
will be submitted to the jury. In practice, the attorneys will prepare proposed questions for the
jury and will have same granted or denied in the same manner as instructions. See MRCP 51.
[Amended effective March 1, 1989.]
156
RULE 50. MOTIONS FOR A DIRECTED VERDICT AND FOR
JUDGMENT NOTWITHSTANDING THE VERDICT
(a) Motion for Directed Verdict: When Made; Effect. A party who moves for a
directed verdict at the close of the evidence offered by an opponent may offer evidence in the
event that the motion is not granted without having reserved the right to do so and to the same
extent as if the motion had not been made. A motion for a directed verdict which is not granted
is not a waiver of trial by jury even though all parties to the action have moved for directed
verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of
the court granting a motion for a directed verdict is effective without any assent of the jury.
(b) Motion for Judgment Notwithstanding the Verdict. Not later than ten days after entry of
judgment in accordance with a verdict, a party may file a motion to have the verdict and any judgment
entered thereon set aside; or if a verdict was not returned, a party, within ten days after the jury has been
discharged, may file a motion for judgment. If no verdict was returned the court may direct the entry of
judgment or may order a new trial.
(c) Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the verdict provided for in subdivision (b)
of this rule is granted, the court shall also rule on the motion for a new trial, if any, by
determining whether it should be granted if the judgment is thereafter vacated or reversed, and
shall specify the grounds for granting or denying the motion for the new trial. If the motion for
a new trial is thus conditionally granted, the order thereon does not affect the finality of the
judgment. In case the motion for a new trial has been conditionally granted and the judgment is
reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.
In case the motion for a new trial has been conditionally denied, the appellee on appeal may
assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall
be in accordance with the order of the appellate court.
(2) The party whose verdict has been set aside on motion for a judgment notwithstanding
the verdict may file a motion for a new trial pursuant to Rule 59 not later than ten days after entry
of the judgment notwithstanding the verdict.
(d) Denial of Motion. If the motion for judgment notwithstanding the verdict is denied,
the party who prevailed on the motion may, as appellee, assert grounds entitling him to a new trial
157
on the event the appellate court concludes that the trial court erred in denying the motion for
judgment notwithstanding the verdict. If the appellate court reverses the judgment nothing in this
rule precludes it from determining that the appellee is entitled to a new trial or from directing the
trial court to determine whether a new trial shall be granted.
[Amended effective July 1, 1994; July 1, 1997.]
Advisory Committee Historical Note
Effective July 1, 1997, Rule 50(b) was amended to clarify that Rule 50(b) motions must
be filed not later than ten days after entry of judgment. 689-692 So. 2d XLIX (West Miss. Cas.
1997).
Effective July 1, 1994, Rule 50(b) was amended so that a motion for directed verdict is
not a prerequisite to file a motion for judgment notwithstanding the verdict. 632-635 So.2d
XXX-XXXI (West Miss.Cases 1994).
[Adopted August 21, 1996; amended effective July 1, 1997.]
Comment
Simplistically stated, it is the law in Mississippi that questions of fact are for the jury and
questions of law are for the court. Cantrell v. Lusk, 113 Miss. 137, 73 So. 885 (1917). Yet there
are situations in which the process of applying the law to the facts may sometimes be for the
court. See generally, authorities cited in 14 Miss. Digest, Trial, key numbers 134-181 (1973).
Rule 50 is a device for the court to enforce the rules of law by taking away from the jury cases
in which the facts are sufficiently clear that the law requires a particular result. Rule 50 applies
only in cases tried to a jury with a power to return a binding verdict. It does not apply to cases
tried without a jury nor to those tried to the court with an advisory jury.
Rule 50(a) provides for a motion for a directed verdict at the close of the plaintiff's
evidence or at the close of all evidence and before the case is submitted to the jury. The rule
enables the court to determine whether there is any question of fact to be submitted to the jury
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and whether any verdict other than the one directed would be erroneous as a matter of law; it is
conceived as a device to save the time and trouble involved in a lengthy jury determination. This
provision requires that the motion for a directed verdict state the specific grounds therefor, which
is contrary to prior Mississippi practice. Cf. Covington County v. Morris, 122 Miss. 496, 84 So.
462 (1920) (defendant need not point out specific reasons for request for peremptory instruction).
Rule 50(a) also provides that if a motion for a directed verdict made by a party at the close
of his opponent's evidence is not granted, the movant may offer evidence as if the motion had not
been made without expressly preserving the right to do so. In ruling on the motion for a directed
verdict, the court should proceed along the same guidelines and standards that have governed
prior peremptory instruction and directed verdict practice in Mississippi: the court should look
solely to the testimony on behalf of the opposing party; if such testimony, along with all
reasonable inferences which can be drawn therefrom, could support a verdict for that party, the
case should not be taken from the jury. See White v. Thomason, 310 So.2d 914 (Miss. 1975);
Ezell v. Metropolitan Ins. Co., 228 So.2d 890 (Miss. 1969); Holmes v. Simon, 71 Miss. 245, 15
So. 70 (1893); but See Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 656-7 (Miss. 1975)
(suggests different standards for testing the sufficiency of evidence on motions for directed
verdict and motion for peremptory instruction or judgment n. o. v.). A motion for a directed
verdict, pursuant to MRCP 50(a), supersedes both the former peremptory instruction practice and
the demurrer to the evidence.
Rule 50(b) differs from its federal rule counterpart in that a motion for a directed verdict
is no longer a prerequisite to file a motion for a judgment notwithstanding the verdict. New
Hampshire v. Sid Smith & Associates, Inc., 610 So.2d 340 (Miss. 1992). A party waives his right
to a directed verdict if the motion is made at the close of his opponent's case and thereafter the
movant introduces evidence in his own behalf, Patrick v. Michigan Nat. Bank, 220 So.2d 273
(Miss. 1969); Broadhead v. Gatlin, 243 Miss. 386, 137 So.2d 909 (1962); however, the movant
may renew the motion at the close of all the evidence. The renewed motion will be judged in the
light of the case as it stands at that time. Even though the court may have erred in denying the
initial motion, such error is cured if subsequent testimony on behalf of the moving party repairs
the defects of his opponent's case. See 9 Wright & Miller, Federal Practice and Procedure, Civil
§ 2534 (1971).
Rule 50(b), governing motions for a judgment notwithstanding the verdict, effectuates a
major change in Mississippi practice: formerly, motions for judgment notwithstanding the
verdict were required to be made prior to the close of the term of court rendering the judgment,
Evers v. Truly, 317 So.2d 414 (Miss. 1975); under Rule 50(b) the motion must be filed within ten
days after the judgment is entered, irrespective of the date court is adjourned. MRCP 6(c).
159
Rule 50(c) authorizes conditional rulings on Rule 50(b) motions. Under this practice there
are four courses the trial court may take when a motion in the alternative for a new trial or a
judgment notwithstanding the verdict is filed: (1) it may deny the motion for judgment and grant
a new trial; (2) it may deny both motions; (3) it may grant both motions; (4) it may grant the
motion for judgment but deny the motion for a new trial. Questions of appealability and of the
power of the appellate court depend on which of these courses is followed.
1. If the trial court denies the motion for judgment but grants the motion for a new trial,
the order, as is true of orders for a new trial generally, is not appealable and the new trial will
proceed.
2. If the trial court denies both motions, the verdict stands and the appeal is from the
judgment entered on the verdict. Both the refusal of judgment notwithstanding the verdict and
errors of law in the trial may be raised on appeal. If the appellate court affirms, the case is
finished.
If the appellate court concludes that it was error to deny the motion for judgment, it has
the same choices of ordering entry of judgment for the moving party, ordering a new trial, or
remanding for the trial court to determine whether there should be a new trial, that it has
whenever it reverses a denial of a motion for judgment. In making that choice it will consider,
but is not limited to, any grounds that the winning party below has asserted as appellee for grant
of a new trial if the decision below is reversed.
If the appellate court concludes that the court below was correct in denying the motion for
judgment, it may also consider whether the court below erred in denying the alternative motion
for a new trial. The scope of review of the denial of a new trial is the same as that under Rule
59 for denials of new trials generally.
3. The trial court may grant both motions. If it does so the grant of a new trial is
conditional only and becomes effective only if the grant of judgment is reversed. The conditional
grant of the new trial does not affect the finality of the judgment and appeal can be taken from
the grant of judgment. In opposing the motion for judgment the party for whom the verdict was
returned is entitled to urge that errors were committed during the trial that at least entitled him
to a new trial rather than to any entry of judgment against him. He may file a motion for a new
trial within ten days after entry of the judgment notwithstanding the verdict and, whether he has
moved for a new trial or not, may argue on appeal that he is entitled to a new trial.
160
If the appellate court affirms the grant of judgment the case is ended. If it reverses the
grant of judgment the new trial must proceed, in accordance with the conditional order by the trial
court, "unless the appellate court has otherwise ordered."
4. The trial court may grant the motion for judgment notwithstanding the verdict and
conditionally deny the new trial. The party in whose favor the motion for judgment was granted
may assert on appeal that the denial of the alternative motion was error, and need not take a
cross-appeal to do so. If the denial of the motion for new trial is challenged in this fashion the
appellate court, after reversing the grant of judgment, will determine whether judgment should
be entered on the verdict or whether there should be subsequent proceedings. 9 Wright & Miller,
supra § 2540.
[Comment amended effective July 1, 1994; July 1, 1997.]
161
RULE 51. INSTRUCTIONS TO JURY
(a) Procedural Instructions. At the commencement of and during the course of a trial,
the court may orally give the jury cautionary and other instructions of law relating to trial
procedure, the duty and function of the jury, and may acquaint the jury generally with the nature
of the case.
(b) Substantive Instructions. Each party to an action may submit six instructions on the
substantive law of the case. However, the court may permit the submission of additional
instructions as justice requires. The court may instruct the jury of its own initiative.
(1) When Submitted. Instructions proposed by parties shall be submitted to the court at
the pre-trial hearing as provided by Rule 16. In the event a pre-trial hearing is not conducted,
proposed instructions shall be delivered to the court and counsel for all parties not later than
twenty-four hours prior to the time the action is scheduled to be tried.
(2) Identification. The court's substantive instructions shall be numbered and prefixed
with the letter C. Plaintiff's instructions shall be numbered and prefixed with the letter P.
Defendant's instructions shall be numbered and prefixed with the letter D. In multi-party actions,
Roman numerals shall be used to identify the proposed instructions of similarly aligned parties;
the Roman numerals shall be placed after the alphabetical designation of P or D, as the case may
be, and shall conform to the sequential listing of parties plaintiff or defendant as stated in the
complaint.
Instructions shall not otherwise be identified with a party.
(3) Objections. No party may assign as error the granting or the denying of an instruction
unless he objects thereto at any time before the instructions are presented to the jury; opportunity
shall be given to make the objection out of the hearing of the jury. All objections shall be stated
into the record and shall state distinctly the matter to which objection is made and the grounds
therefor.
(c) Instructions to be Written. Except as allowed by Rule 51(a), all instructions shall
be in writing.
162
(d) When Read; Available to Counsel and Jurors. Instructions shall be read by the
court to the jury at the close of all the evidence and prior to oral argument; they shall be available
to counsel for use during argument. Instructions shall be carried by the jury into the jury room
when it retires to consider its verdict.
Comment
Rule 51(a) and (b) tracks the requirements of the Supreme Court of Mississippi in Newell
v. State, 308 So.2d 68 (Miss. 1975), and Newell v. State, 308 So.2d 71 (Miss. 1975), in mandating
that the trial judge bear the responsibility for properly instructing the jury. The remainder of Rule
51 is, substantially, identical to Rules 14 and 28, Uniform Mississippi Circuit Court Rules.
Rule 51(b)(1) requires that jury instructions be submitted either at the pretrial hearing
(MRCP 16) or, in the event a pretrial hearing is not held, at least twenty-four hours prior to the
scheduled time for trial. Rule 16(k) guarantees that instructions may be amended or
supplemented as necessary.
Rule 51(b)(2) is intended simply to implement a uniform method for identifying
instructions for purposes of the trial record; it is not intended either to indicate to nor conceal
from the jury the identify of the originators of instructions.
Rule 51(b)(3) parallels prior Mississippi practice for objecting to instructions. See Miss.
Code Ann. § 11-7-155 (1972) (instructions become part of record); Gowan v. Batson, 288 So.2d
468 (Miss. 1974) (continuing objection during trial to matters on which jury was later instructed
preserved objection); Creel v. General Motors Corp., 233 So.2d 105 (Miss. 1970) (objection to
instruction not made before instruction is delivered to jury is waived).
Rule 51(d) preserves traditional Mississippi practice permitting attorneys to argue the case
after the jury has been instructed. Further, the rule ensures that attorneys will have access to the
instructions during their arguments and that the instructions may be carried into the jury room by
the jury. See Miss. Code Ann. § 11-7-155 (1972) (jury may use instructions during
deliberations).
163
RULE 52. FINDINGS BY THE COURT
(a) Effect. In all actions tried upon the facts without a jury the court may, and shall upon
the request of any party to the suit or when required by these rules, find the facts specially and
state separately its conclusions of law thereon and judgment shall be entered accordingly.
(b) Amendment. Upon motion of a party filed not later than ten days after entry of
judgment or entry of findings and conclusions, or upon its own initiative during the same period,
the court may amend its findings or make additional findings and may amend the judgment
accordingly. The motion may accompany a motion for a new trial pursuant to Rule 59. When
findings of fact are made in actions tried by the court without a jury, the question of the
sufficiency of the evidence to support the findings may thereafter be raised regardless of whether
the party raising the question has made in court an objection to such findings or has filed a
motion to amend them or a motion for judgment or a motion for a new trial.
[Amended effective, July 1, 1997.]
Advisory Committee Historical Note
Effective July 1, 1997, Rule 52(b) was amended to clarify that a motion to amend the trial
court’s findings must be filed not later that ten days after entry of judgment. 689 So. 2d XLIX
(West Miss. Cas. 1997).
[Adopted effective July 1, 1997.]
164
Comment
Rules 52(a) is adapted from Miss. Code Ann. § 11-7-87 (1972); however, the statute
indicates that findings of fact may be entered only upon the request of a party, while the rule
authorizes the court to enter its findings whether or not requested. In Tricon Metals & Services,
Inc. v. Topp, 516 So.2d 236 (Miss.1987), the Court stated that in cases of any significant
complexity the trial court generally should find the facts specially and state separately its
conclusions of law.
Under Rule 52(b) the court, upon the motion of a party or upon its own motion, may
amend its findings or make additional findings for up to ten days after the entry of judgment.
Again, this ten-day period is computed irrespective of the date a term of court is adjourned. See
MRCP 6 (c).
The purpose of Rule 52(b) is to enable the appellate court to obtain a correct
understanding of the factual issues determined by the trial court as a basis for the conclusions of
law and judgment entered thereon. A party who failed to prove his strongest case is not entitled
to a second opportunity by moving to amend a finding of fact and conclusion of law; the motion
must raise questions of subtance by seeking reconsideration of material findings or conclusions.
See 9 Wright & Miller, Federal Practice and Procedure, Civil § 2582 (1971).
[Amended effective March 1, 1989.]
165
RULE 53. MASTERS, REFEREES, AND COMMISSIONERS
(a) Appointment and Compensation. The court may appoint one or more persons in
each county to be masters of the court, and the court in which any action is pending may appoint
a special master therein. As used in these rules, the word "Master" includes a referee, an auditor,
an examiner, a commissioner, and a special commissioner. The master shall receive a reasonable
compensation for services rendered, as fixed by law or as allowed by the court and taxed in the
costs and collected in the same manner as the fees of the clerk.
(b) Qualifications. The master shall be an attorney at law, authorized to practice law
before all courts of the State of Mississippi. However, in extraordinary circumstances where the
finding to be made is of a complex, technical, non legal nature, a person other than an attorney
possessing the requisite qualifications of a person skilled in the field, area, or subject of the
inquiry may be appointed as a master; additionally, persons other than attorneys may be appointed
as special commissioners to conduct judicially-ordered sales and partitions of real or personal
property.
(c) Reference: When Made. With the written consent of the parties, the court may refer
any issue of fact or law to a master. Otherwise, a reference shall be made only upon a showing
that some exceptional condition requires it.
(d) Powers. The order of reference to the master may specify or limit his powers and may
direct him to report only upon particular issues or to do or perform particular acts or to receive
and report evidence only and may fix the time and place for beginning and closing the hearing
and for the filing of the master's report. Subject to the specifications and limitations stated in the
order, the master has and shall exercise the power to regulate all proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may require the production before him of evidence
upon all matters embraced in the reference, including the production of all books, papers,
vouchers, documents, and writings applicable thereto. He shall have the power to administer
oaths, to take the examination of witnesses in cases pending in any court, to examine and report
upon all matters referred to him, and to execute all decrees directed to him to be executed.
Masters shall have the power to direct the issuance of subpoenas for witnesses to attend
before them to testify in any matter referred to them or generally in the cause. If any witness shall
fail to appear, the master shall proceed by process to compel the witness to attend and
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give evidence.
(e) Proceedings. When a reference is made, the clerk shall forthwith furnish the master
with a certified copy of the order of reference, which shall constitute sufficient certification of
his authority. Upon receipt thereof, unless the order of reference otherwise provides, the master
shall forthwith set a time and place for the first meeting of the parties or their attorneys which is
to be held in any event within ten days following the date of the order of reference and shall
notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable
diligence. Either party, on notice to the parties and master, may apply to the court for an order
requiring the master to speed the proceedings and to make his report. If a party fails to appear
at the time and place appointed, the master may proceed ex parte or, in his discretion, may
adjourn the proceedings to a future day, giving notice of same to the absent party.
(f) Statements of Account. The court may direct an account to be taken in any cause in
vacation or in term, and when the master shall doubt as to the principles upon which the account
shall be taken or as to the propriety of admitting any item of debit or credit claimed by either
party, he may state in writing the points on which he shall doubt and submit same for decision
to the court in vacation or in term.
(g) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to
him by the order of reference and, if required to make findings of fact and conclusions of law,
he shall set them forth in the report. He shall file the report with the clerk of the court and, unless
otherwise directed by the order of reference, shall file with it a transcript of the proceeding and
of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the
filing.
(2) Acceptance and Objections. The court shall accept the master's findings of fact unless
manifestly wrong. Within ten days after being served with notice of the filing of the report any
party may serve written objections thereto upon the other parties. Application to the court for
action upon the report and upon objections thereto shall be by motion and upon notice as
provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject
it in whole or in any part or may receive further evidence or may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master's report is the same regardless of
167
whether the parties have consented to the reference; however, when the parties stipulate that a
master's finding of fact shall be final, only questions of law arising upon the report shall
thereafter be considered.
(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel
for all parties for the purpose of receiving their suggestions.
(h) Bond; When Required. The court may require a special commissioner appointed to
conduct a sale of any property to give bond in such penalty and with sufficient sureties to be
approved as the court may direct, payable to the State of Mississippi, and conditioned to pay
according to law all money which may come into his hands as such special commissioner. The
bond shall be filed with the court. For any breach of its condition, execution may be issued on
order of the court for the sum due. However, when the clerk of the court or the sheriff is
appointed to make a sale and the order does not provide for a bond, the official bond of the clerk
or the sheriff shall be held as security in the premises.
[Amended effective March 1, 1989; April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 53(c) was amended to give the court discretion to appoint
a master on the written consent of the parties without a showing of an exceptional condition.
753-754 So. 2d. XVII (West Miss.Cas. 2000).
Effective March 1, 1989, Rule 53 was amended to correct a typographical error. 536-538
So. 2d XXVII (West Miss. Cas. 1989).
Comment
Rule 53 is an amalgamation of Rule 53, Federal Rules of Civil Procedure, and prior
Mississippi practice. Mississippi judges have long had the power to appoint masters, referees,
and commissioners as assistants to the court. See Miss. Code Ann. § 9-5-241 (chancellor may
appoint two or more persons in each county to serve as masters); § 9-5-251 (chancellor may
appoint special commissioners in any case [Mississippi practice traditionally labeled as a
"commissioner" any person appointed to make a judicial sale or to perform a special executive
168
or ministerial act, V. Griffith, Mississippi Chancery Practice, 598, n. 2 at 636 (2d ed. 1950)]); and
§ 11-7-137 (1972) (circuit court judges may refer issues to referees).
The first change in prior practice effectuated by Rule 53 is the pronouncement that the
term "master" include masters, referees, commissioners, and other judicial assistants heretofore
recognized by Mississippi. Rule 53(a). The second change in the rule is the requirement that all
masters -- except as specified -- be attorneys at law. Rule 53(b).
Rule 53(d) provides that the order of reference may specify or limit the master's powers
and may direct him to report only upon particular issues or to do or perform particular acts or to
receive and report evidence only; the order may also fix the time and place for beginning and
closing the hearing and for filing the master's report. Subject to the specifications and limitations
stated in the order, the master has ant may exercise the power to regulate all proceedings in every
hearing before him and to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may require the production before him of evidence
upon all matters embraced in the reference, and he may rule upon the admissibility of evidence.
He has the power to administer oaths to witnesses and to direct the issuance of subpoenas.
However, the master may not himself serve subpoenas. Cf. MRCP 45(c).
To ensure that reference matters are not unduly delayed, Rule 53(e) contains several
provisions intended to expedite proceedings before the master. The clerk is required to give the
master a copy of the order of reference "forthwith"; the master must "forthwith" set a time and
place for the hearing, in any event within ten days after the reference is made. The master is
required to proceed with "all reasonable diligence," and any party may apply to the court for an
order that the master speed the proceedings.
Rule 53(f) is adapted from Miss. Code Ann. § 9-5-247 (1972). See Felder v. Wall, 26
Miss. 595 (1853); Cobb v. Duke, 36 Miss. 60 (1858); Chapman v. Evans, 44 Miss. 113 (1870);
Gaines v. Coney, 51 Miss. 323 (1875).
Rule 53(g)(1) contains specific, detailed directions for the making of the master's report.
The master must prepare his report in accordance with the scope of his order of reference, setting
forth findings of fact and conclusions of law if so required. The report i6 to be filed with the
clerk and, unless otherwise directed, it is to be placed in the case file for that action. The clerk
is required to notify all parties of the filing of the report. The rule also provides that the master
may submit a draft report to counsel to receive their suggestions before finally reporting to the
court. Rule 53 (g)(4).
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Unless the master's report is manifestly wrong, the court shall accept same; however,
parties may, within ten days, object to the report by serving on all other parties notice of their
objections. Rule 53 (g)(2). Application to the court for action upon the report and objections to
it are by motion and notice as prescribed in Rule 6(d).
Under Rule 53(g)(3) the effect of the master's report is the same regardless of whether the
parties have consented to the reference; however, only questions of law arising upon the report
may be considered if the parties stipulate that the master's findings of fact shall be final.
Rule 53(h) tracks prior Mississippi practice in allowing the court to require a bond of
commissioners appointed to conduct judicial sales. See Miss. Code Ann. § 9-5-253 (1972).
[Comment amended effective April 13, 2000.]
170
CHAPTER VII. JUDGMENT
RULE 54. JUDGMENTS; COSTS
(a) Definitions. "Judgment" as used in these rules includes a final decree and any order
from which an appeal lies.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than
one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or
third-party claim, or when multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties only upon an expressed
determination that there is no just reason for delay and upon an expressed direction for the entry
of the judgment. In the absence of such determination and direction, any order or other form of
decision, however designated which adjudicates fewer than all of the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any of the claims or
parties and the order or other form of decision is subject to revision at any time before the entry
of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment. Except as to a party against whom
a judgment is entered by default, every final judgment shall grant the relief to which the party
in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the
court to grant, even if the party has not demanded such relief in his pleadings; however, final
judgment shall not be entered for a monetary amount greater than that demanded in the pleadings
or amended pleadings.
(d) Costs. Except when express provision therefor is made in a statute, costs shall be
allowed as of course to the prevailing party unless the court otherwise directs, and this provision
is applicable in all cases in which the State of Misslssippi is a party plaintiff in civil actions as
in cases of individual suitors. In all cases where costs are adjudged against any party who has
given security for costs, execution may be ordered to issue against such security. Costs may be
taxed by the clerk on one day's notice. On motions served within five days of the receipt of
notice of such taxation, the action of the clerk may be reviewed by the court.
Comment
171
The first sentence of Rule 54(a) defines "judgment," for the purposes of these rules, to
include a decree and any appealable order. Traditionally, in Mississippi courts in equity suits
judges rendered a "decree," and an action at law resulted in the entry of a "judgment." There is
no longer any purpose in preserving a technical distinction between a decree and a judgment.
Therefore, Rule 54(a) indicates that a judgment at law and a decree in equity are to be treated in
the same fashion.
Although it is not specifically described in the rule itself, there are several different stages
that lead to the creation of a judgment that is final and appealable. It is important to differentiate
the various steps that are part of this process. The first distinction is between the adjudication,
either by a decision of the court or a verdict of the jury, and the judgment that is entered thereon.
The terms "decision" and "judgment" are not synonymous under these rules. The decision
consists of the court's findings of fact and conclusions of law; the rendition of judgment is the
pronouncement of that decision and the act that gives it legal effect.
A second distinction that should be noted is between the judgment itself and the "filing,"
or the "entry," of the judgment. A judgment is the final determination of an action and thus has
the effect of terminating the litigation; it is "the act of the court." "Filing" simply refers to the
delivery of the judgment to the clerk for entry and preservation. The "entry" of the judgment is
the ministerial notation of the judgment by the clerk of the court pursuant to Rule 58; however,
it is crucial to the effectiveness of the judgment and for measuring the time periods for appeal and
the filing of various motions. See 10 Wright & Miller, Federal Practice and Procedure, Civil §
2651 (1973).
Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than
all the claims or as to one or more but fewer than all the parties in an action involving more than
one claim or party. It was proposed because of the potential scope and complexity of civil actions
under these rules, given their extensive provisions for the liberal joinder of claims and parties.
The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment
on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of
the entire case by making an immediate appeal available.
The rule does not require that a judgment be entered when the court disposes of one or
more claims or terminates the action as to one or more parties. Rather, it gives the court
discretion to enter a final judgment in these circumstances and it provides much needed certainty
in determining when a final and appealable judgment has been entered. If the court chooses to
enter such a final order, it must do so in a definite, unmistakable manner.
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Absent a certification under Rule 54(b), any order in a multiple party or multiple claim
action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.
If the court decides that an order that does not dispose of all the claims of all the parties
and that is not appealable under any other statute or rule should be given the status of a final
judgment, Rule 54(b) requires it to take two separate steps before an appeal can be perfected.
The court must make "an express determination that there is no just reason for delay" and it must
make "an express direction for the entry of judgment."
When the court is asked to direct the entry of a judgment under Rule 54(b), it must
consider whether the entire case as a whole and the particular disposition that has been made and
for which the entry of a judgment is sought falls within the scope of the rules. The general
requirements are that the case include either multiple claims, multiple parties, or both, and that
either one or more but fewer than all the claims have been decided, or that all the rights and
liabilities of at least one party have been adjudicated.
Despite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select
group of cases and applied to an even more limited category of decisions. The rule itself sets
forth three basic conditions on its applicability. The first requirement is that either multiple
claims for relief or multiple parties be involved. If there are multiple parties, there need only be
one claim in the action. All of the rights or liabilities or one or more of the parties regarding that
claim must have been fully adjudicated. A decision that leaves a portion of the claim pending
as to all defendants does not fall within the ambit of Rule 54(b). Whether multiple parties are
before the court is, basically, a simple question that should pose no problems.
The second prerequisite for invoking Rule 54(b) is that at least one claim or the rights and
liabilities of at least one party must be finally decided. The words "final judgment" in Rule 54(b)
should not be construed too narrowly. A dismissal for lack of subject matter or personal
jurisdiction may dispose of a claim completely and thus bring it within the scope of the rule;
however, a dismissal for failing to state a claim upon which relief may be granted, made with
leave to amend, clearly does not finally decide that claim and Rule 54(b) would not apply.
The third prerequisite to the issuance of a Rule 54(b) certificate is that the court must find
that there is no just reason for delaying an appeal. A request that this determination be made is
addressed to the trial judge's discretion and whether it will be granted depends on the facts of
each case. See 10 Wright & Miller, supra § 2656.
173
Rule 54(c) has two central elements. The first sentence in the rule provides that a default
judgment shall not give relief "different in kind from" or that "exceeds in amount that prayed for
in the demand for judgment." The second sentence in Rule 54(c) provides that in non-default
cases the judgment need not be limited in kind or amount by the demand, but may include the
relief to which the successful party is deemed entitled. The rule must be read in conjunction with
Rule 8, which requires that every pleading asserting a claim include a demand for the relief to
which the pleader believes himself entitled. Thus, Rule 54(c) applies to any demand for relief,
whether made by defendant or plaintiff or presented by way of an original claim, counter-claim,
cross-claim, or third-party claim. But See, Cain v. Robinson, 523 So.2d 29 (Miss. 1988). A
default judgment may not extend to matters outside the issues raised by the pleadings or beyond
the scope of the relief demanded; a judgment in a default case that awards relief that either is
more than or different in kind from that requested originally is null and void and defendant may
attack it collaterally in another proceeding.
Three related concepts should be distinguished in considering Rule 54(d): These are costs,
fees, and expenses. Costs refers to those charges that one party has incurred and is permitted to
have reimbursed by his opponent as part of the judgment in the action. Although costs has an
everyday meaning synonymous with expenses, taxable costs under Rule 54(d) is more limited and
represents those official expenses, such as court fees, that a court will assess against a litigant.
Costs almost always amount to less than a successful litigant's total expenses in connection with
a law suit and their recovery is nearly always awarded to the successful party. See Miss. Code
Ann. § 11-53-27 (1972) (successful party to recover costs, generally).
Fees are those amounts paid to the court or one of its officers for particular charges that
generally are delineated by statute. Most commonly these include such items as filing fees,
clerk's and sheriff's charges, and witnesses' fees. In most instances an award of costs will include
reimbursement for the fees paid by the party in whose favor the cost award is made.
Expenses include all the expenditures actually made by a litigant in connection with the
action. Both fees and costs are expenses but by no means constitute all of them. Absent a special
statute or rule, or an exceptional exercise of judicial discretion, such items as attorney's fees,
travel expenditures, and investigatory expenses will not qualify either as statutory fees or
reimbursable costs. These expenses must be borne by the litigants. 10 Wright & Miller, supra
§ 2666. See also 6 Moore's Federal Practice ¶¶ 54.01-.43 (1972).
[Amended effective February 1, 1990.]
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RULE 55. DEFAULT
(a) Entry. When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and that fact is made to appear by
affidavit or otherwise, the clerk shall enter his default.
(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.
(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).
(d) Plaintiffs, Counter-Claimants, and Cross-Claimants. The provisions of this rule
apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff,
or a party who has pleaded a cross-claim or counter-claim. In all cases a judgment by default is
subject to the limitation of Rule 54(c).
(e) Proof Required Despite Default in Certain Cases. No judgment by default shall be
entered against a person under a legal disability or a party to a suit for divorce or annulment of
marriage unless the claimant establishes his claim or rights to relief by evidence, provided,
however, that divorces on ground of irreconcilable differences may be granted pro confesso as
provided by statute.
Comment
The purpose of Rule 55 is to provide a uniform procedure for acting upon and setting aside
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actions upon parties' defaults.
Prior to obtaining a default judgment, Rule 55(b), there must be an entry of default as
provided by Rule 55(a). An entry of default may be made by the clerk only with regard to a claim
for affirmative relief against a party who has failed to plead or otherwise defend; See MRCP
App.B, Form 36. These elements of default must be shown by an affidavit or other competent
proof.
Before a default can be entered, the court must have jurisdiction over the party against
whom the judgment is sought, which also means that he must have been effectively served with
process. Arnold v. Miller, 26 Miss. 152 (1853). If the court has jurisdiction over an action
seeking affirmative relief, a default may be entered against any party who fails to plead or
otherwise defend within the time allowed by Rule 12(a).
Entry of default for failure to plead or otherwise defend is not limited to situations
involving a failure to answer a complaint, but applies to any of the pleadings listed in Rule 7(a).
Thus, plaintiff's failure to reply to a counter-claim may entitle defendant to an entry of
default on the counter-claim. The same is true with regard to cross-claims.
The words "otherwise defend" refer to the interposition of various challenges to such
matters as service, venue, and the sufficiency of the prior pleading, any of which might prevent
a default if pursued in the absence of a responsive pleading. The authority in Rule 55(a) for the
clerk to enter a default does not require that to escape default the defendant must not only file a
sufficient answer to the merits but must also have a lawyer or be present in court when the case
is called for trial; thus, a motion challenging the complaint for failure to state a claim upon which
relief can be granted is within the notion of "otherwise defend."
The mere appearance by a defending party will not keep him from being in default for
failure to plead or otherwise defend, but if he appears and indicates a desire to contest the action,
the court can exercise its discretion and refuse to enter a default. This approach is in line with
the general policy that whenever there is doubt whether a default should be entered, the court
ought to allow the case to be tried on the merits.
Rule 55(a) does not represent the only source of authority in these rules for the entry of
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a default that may lead to judgment. As a result, a party who has filed a responsive pleading or
otherwise defended may still find himself in default for noncompliance with the rules at some
later point in the action. For example, Rule 37(b)(2)(C) and Rule 37(d) both provide for the use
of a default judgment as a sanction for violation of the discovery rules.
When the prerequisites of Rule 55(a) are satisfied, an entry of default should be made by
the clerk without any action being taken by the court. The clerk's function, however, is not
perfunctory. Before he can enter a default he must examine the affidavits filed and satisfy himself
that they meet the requirements of Rule 55(a). The fact that Rule 55(a) gives the clerk the
authority to enter a default is not a limitation on the power of the court to do so.
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. This
enables a defendant in default to appear at a subsequent hearing on the question of damages and
contest the amount to be assessed against him. Damages must be fixed before an entry of default
can become a default judgment and there is no estoppel by judgment until the judgment by
default has been entered.
When a judgment by default is entered, it is treated as a conclusive and final adjudication
of the issues necessary to justify the relief awarded and is given the same effect as a judgment
rendered after a trial on the merits. A judgment entered pursuant to Rule 55(b) may be reviewed
on appeal to the same extent as any other judgment; however, an order denying a motion for a
default judgment is interlocutory and not appealable. Rule 54(a).
The ability of the court to exercise its discretion and refuse to enter a default judgment is
made effective by the two requirements in Rule 55(b) that an application must be presented to
the court for the entry of judgment and that notice of the application must be sent to the
defaulting party if he has appeared. The latter requirement enables the defaulting party to show
cause to the court why a default judgment should not be entered or why the requested relief
should not be granted. A party's failure to appear or be represented at any stage of the
proceedings following an initial appearance does not affect this notice requirement. Service of
the notice must be made at least three days before the hearing on the application, and must afford
the party an opportunity to appear at the hearing. The purpose of this portion of Rule 55(b) is
simple: It is intended to protect those parties who, although delaying in a formal sense by failing
to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear
purpose to defend the suit. On the other hand, when a defaulting party has failed to appear,
177
thereby manifesting no intention to defend, he is not entitled to notice of the application for a
default judgment under this rule.
In determining whether to enter a default judgment, the court is free to consider a number
of factors that may appear from the record. Among these are the amount of money potentially
involved; whether material issues of fact or issues of substantial public importance are at issue,
whether the default is largely technical; whether plaintiff has been substantially prejudiced by the
delay involved; and whether the grounds for default are clearly established or are in doubt.
Furthermore, the court may consider whether the default was caused by a good-faith mistake or
excusable neglect, how harsh an effect a default judgment might have, and whether the court
thinks it later would be obliged to set aside the default on defendant's motion.
Once the default is established, defendant has no further standing to contest the factual
allegations of plaintiff's claim for relief. If he wishes an opportunity to challenge plaintiff's right
to recover, his only recourse is to show good cause for setting aside the default under Rule 55(c)
and, failing that, to contest the amount of recovery.
Once the court determines that a judgment by default should be entered, it will determine
the amount and character of the recovery that should be awarded. If the defendant does not
contest the amount prayed for in the complaint and the claim is for a sum certain or a sum that
can be made certain by computation, the judgment generally will be entered for that amount
without any further hearing.
If the sum is not certain or capable of easy computation the court may hold whatever
hearing or inquiry it deems necessary; it may even direct an accounting or a reference to a master.
See MRCP 53.
When defendant contests the amount of the claim, a full hearing may be required on the
issue of damages since a default does not concede the amount demanded. This proceeding is the
same as any other trial except that it is limited to the question of damages.
Rule 55(c) differentiates between relief from the entry of default and relief from a default
judgment. This distinction reflects the different consequences of the two events and the different
procedures that bring them about. The clerk of the court may enter a default upon the application
of the nondefaulting party; the entry simply is an official recognition of the fact that one party is
in default. The entry is an interlocutory step that is taken under Rule 55(a) in anticipation of a
178
final judgment by default under Rule 55(b).
In sharp contrast, a final default judgment is not possible against a party in default until
the measure of recovery has been ascertained, which typically requires a hearing, in which the
defaulting party may participate; in some situations a trial may be made available to determine
an issue of damages. Moreover, the entry of a default judgment is a final disposition of the case
and is an appealable order.
The distinction between an entry of default and a default judgment also has significance
in terms of the procedure for setting them aside. The party against whom a default has been
entered typically will attempt to have his default set aside in order to enable the action to proceed.
A motion for relief under Rule 55(c) is appropriate for this purpose even though there has not
been a formal entry of default. For example, when defendant fails to answer within the time
specified by the rules, he is in default even if that fact is not officially noted. Therefore, he must
request that the default be "excused" and secure leave to answer before his responsive pleading
will be recognized.
Relief from a default judgment must be requested by a formal application as required by
Rule 60(b). Because the request is for relief from a final disposition of the case, the party in
default must take affirmative action to bring the case before the trial court a second time. A
motion for relief under Rule 55(c) is not the equivalent of or an alternative to appeal. Of course,
if the motion is denied, it is ripe for immediate appeal, but the right to appeal may be lost for
failure to pursue it in a timely fashion.
Rule 55(d) sets out two relatively straight-forward propositions. The first sentence of the
subdivision states that the provisions of Rule 55 are applicable to any party seeking relief,
whether a plaintiff, third-party plaintiff, counterclaimant, or cross-claimant. According to the
second sentence of Rule 55(d), which simply serves as a cross-reference, a default judgment in
any case is "subject to the limitation of Rule 54(d)." The latter provision states that a default
judgment "shall not be different in kind from or exceed in amount that prayed for in the demand
for judgment."
For detailed discussions of Federal Rule 55, after which MRCP 55 is patterned, see 6
Moore's Federal Practice ¶¶ 55.01-.11 (1972), and 10 Wright & Miller, Federal Practice and
Procedure, Civil §§ 2681-2690, 2692-2701 (1973).
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RULE 56. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counter-claim, or cross-claim,
or to obtain a declaratory judgment may, at any time after the expiration of thirty days from the
commencement of the action or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment in his favor upon all
or any part thereof.
(b) For Defending Party. A party against whom a claim, counter-claim, or cross-claim
is asserted or a declaratory judgment is sought may, at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least ten days
before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve
opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone, although there is a genuine issue as to the amount of
damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not
rendered on the whole case or for all the relief asked and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the evidence before it and by interrogating
counsel, shall if practicable ascertain what material facts exist without substantial controversy
and what material facts are actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. Upon the trial of the action the facts so specified shall be
deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matter stated therein. Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When
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a motion for summary judgment is made and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits
or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered
against him.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party
opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify
his opposition, the court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to be had or may make
such order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any
time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely
for the purpose of delay, the court shall forthwith order the party employing them to pay to the
other party the amount of the reasonable expenses which the filing of the affidavits caused him
to incur, including reasonable attorney's fees, and any offending party or attorney may be
adjudged guilty of contempt.
(h) Costs to Prevailing Party When Summary Judgment Denied. If summary
judgment is denied the court shall award to the prevailing party the reasonable expenses incurred
in attending the hearing of the motion and may, if it finds that the motion is without reasonable
cause, award attorneys' fees.
Comment
The purpose of Rule 56 is to expedite the determination of actions on their merits and
eliminate unmeritorious claims or defenses without the necessity of a full trial.
Rule 56 permits any party to a civil action to move for a summary judgment on a claim,
counter-claim, or cross-claim when he believes that there is no genuine issue of material fact and
that he is entitled to prevail as a matter of law. The motion may be directed toward all or part of
a claim or defense and it may be made on the basis of the pleadings or other portions of the
record, or it may be supported by affidavits and other outside material. Thus, the motion for a
summary judgment challenges the very existence or legal sufficiency of the claim or defense to
which it is addressed; in effect, the moving party takes the position that he is entitled to prevail
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as a matter of law because his opponent has no valid claim for relief or defense to the action, as
the case may be.
Rule 56 provides the means by which a party may pierce the allegations in the pleadings
and obtain relief by introducing outside evidence showing that there are no fact issues that need
to be tried. The rule should operate to prevent the system of extremely simple pleadings from
shielding claimants without real claims or defendants without real defenses; in addition to
providing an effective means of summary action in clear cases, it serves as an instrument of
discovery in calling forth quickly the disclosure on the merits of either a claim or defense on pain
of loss of the case for failure to do so. In this connection the rule may be utilized to separate
formal from substantial issues, eliminate improper assertions, determine what, if any, issues of
fact are present for the jury to determine, and make it possible for the court to render a judgment
on the law when no disputed facts are found to exist.
A motion for summary judgment lies only when there is no genuine issue of material fact;
summary judgment is not a substitute for the trial of disputed fact issues. Accordingly, the court
cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to
be tried. Given this function, the court examines the affidavits or other evidence introduced on
a Rule 56 motion simply to determine whether a triable issue exists, rather than for the purpose
of resolving that issue. Similarly, although the summary judgment procedure is well adapted to
expose sham claims and defenses, it cannot be used to deprive a litigant of a full trial of genuine
fact issues.
Rule 56 is not a dilatory or technical procedure; it affects the substantive rights of litigants.
A summary judgment motion goes to the merits of the case and, because it does not simply raise
a matter in abatement, a granted motion operates to merge or bar the cause of action for purposes
of res judicata. A litigant cannot amend as a matter of right under Rule 15(a) after a summary
judgment has been rendered against him.
It is important to distinguish the motion for summary judgment under Rule 56 from the
motion to dismiss under Rule 12(b), the motion for a judgment on the pleadings under Rule 12(c),
or motion for a directed verdict permitted by Rule 50.
A motion under Rule 12(b) usually raises a matter of abatement and a dismissal for any
of the reasons listed in that rule will not prevent the claim from being reasserted once the defect
is remedied. Thus a motion to dismiss for lack of subject matter or personal jurisdiction,
improper venue, insufficiency of process or service of process, or failure to join a party under
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Rule 19, only contemplates dismissal of that proceeding and is not a judgment on the merits for
either party. Similarly, although a motion to dismiss under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted is addressed to the claim itself, the movant merely is
asserting that the pleading to which the motion is directed does not sufficiently state a claim for
relief; unless the motion is converted into one for summary judgment as permitted by the last
sentence of Rule 12(b), it does not challenge the actual existence of a meritorious claim.
A motion for judgment on the pleadings, Rule 12(c), is an assertion that the moving party
is entitled to a judgment on the face of all the pleadings; consideration of the motion only entails
an examination of the sufficiency of the pleadings.
In contrast, a summary judgment motion is based on the pleadings and any affidavits,
depositions, and other forms of evidence relative to the merits of the challenged claim or defense
that are available at the time the motion is made. The movant under Rule 56 is asserting that on
the basis of the record as it then exists, there is no genuine issue as to any material fact and that
he is entitled to a judgment on the merits as a matter of law. The directed verdict motion, which
rests on the same theory as a Rule 56 motion, is made either after plaintiff has presented his
evidence at trial or after both parties have completed their evidence; it claims that there is no
question of fact worthy of being sent to the jury and that the moving party is entitled, as a matter
of law, to have a judgment on the merits entered in his favor.
A Rule 12(c) motion can be made only after the pleadings are closed, whereas a Rule 56
motion always may be made by defendant before answering and under certain circumstances may
be made by plaintiff before the responsive pleading is interposed. Second, a motion for judgment
on the pleadings is restricted to the content of the pleading, so that simply by denying one or more
of the factual allegations in the complaint or interposing an affirmative defense, defendant may
prevent a judgment from being entered under Rule 12(c), since a genuine issue will appear to
exist and the case cannot be resolved as a matter of law on the pleadings.
Subsections (b) and (h) are intended to deter abuses of the summary judgment practice.
Thus, the trial court may impose sanctions for improper use of summary judgment and shall, in
all cases, award expenses to the party who successfully defends against a motion for summary
judgment.
For detailed discussions of Federal Rule 56, after which MRCP 56 is patterned, See 10
Wright & Miller, Federal Practice and Procedure, Civil §§ 2711-2742 (1973); 6 Moore's Federal
Practice ¶¶ 56.01-.26 (1970); C. Wright, Federal Courts § 99 (3d ed. 1976); See also Comment,
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Procedural Reform in Mississippi: A Current Analysis, 47 Miss.L.J. 33, 63 (1976).
184
RULE 57. DECLARATORY JUDGMENTS
(a) Procedure. Courts of record within their respective jurisdictions may declare rights,
status, and other legal relations regardless of whether further relief is or could be claimed. The
court may refuse to render or enter a declaratory judgment where such judgment, if entered,
would not terminate the uncertainty or controversy giving rise to the proceeding.
The procedure for obtaining a declaratory judgment shall be in accordance with these
rules, and the right to trial by jury may be demanded under the circumstances and in the manner
provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a
judgment for declaratory relief in actions where it is appropriate.
The court may order a speedy hearing of an action for declaratory judgment and may
advance it on the calendar. The judgment in a declaratory relief action may be either affirmative
or negative in form and effect.
(b) When Available.
(1) Any person interested under a deed, will, written contract, or other writings
constituting a contract, or whose rights, status, or other legal relations are affected by a statute,
municipal ordinance, contract or franchise, may have determined any question of construction
or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a
declaration of rights, status or other legal relations thereunder.
(2) A contract may be construed either before or after there has been a breach thereof.
Where an insurer has denied or indicated that it may deny that a contract covers a party's claim
against an insured, that party may seek a declaratory judgment construing the contract to cover
the claim.
(3) Any person interested as or through an executor, administrator, trustee guardian or
other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the
administration of a trust, or of the estate of a decedent, an infant, insolvent, or person under a
legal disability, may have a declaration of rights or legal relations in respect thereto:
(A) to ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or,
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(B) to direct the executors, administrators, or trustees, to do or abstain from doing any
particular act in their fiduciary capacity; or,
(C) to determine any question arising in the administration of the estate or trust, including
questions of construction of wills and other writings.
(4) The enumeration in subdivisions (1), (2) and (3) of this rule does not limit or restrict
the exercise of the general powers stated in paragraph (a) in any proceeding where declaratory
relief is sought in which a judgment will terminate the controversy or remove an uncertainty.
[Amended effective July 27, 2000.]
Comment
The purpose of Rule 57 is to create a procedure by which rights and obligations may be
adjudicated in cases involving an actual controversy that has not reached the stage at which either
party may seek a coercive remedy, or in which the party entitled to such a remedy fails to sue for
it.
Actions for declaratory judgment represent a comparatively recent development in
American jurisprudence. The traditional and conventional concept of the judicial process has
been that the courts may act only when a complainant is entitled to a coercive remedy, such as
a judgment for damages or an injunction. Until a controversy had matured to a point at which
such relief was appropriate and the person entitled thereto sought to invoke it, the courts were
powerless to act.
At times, however, there may be an actual dispute about the rights and obligations of the
parties, and yet the controversy may not have ripened to a point at which an affirmative remedy
is needed. Or this stage may have been reached, but the party entitled to seek the remedy may
fail to take the necessary steps. For example, the maker of a promissory note may have stated to
the payee that the instrument would not be honored at maturity because, perhaps, his signature
is claimed to have been forged, or procured by fraud, or affixed without his authority. The payee
had to wait until payment was due before appealing to the courts. It might well have been
important for him to ascertain in advance whether the note was a binding obligation and whether
he might rely on it and list it among his assets. Nevertheless, he could receive no judicial relief
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until the instrument became due and was dishonored. Or it might have been necessary for a
person to determine whether he was bound by some contractual provision that he deemed void.
In that event, if he desired to contest the matter, he had to assume the risk and to hazard the
consequences of committing a breach and then await a suit.
In such situations the declaratory judgment remedy provides a useful solution. This
remedy enlarges the judicial process and makes it more flexible by putting a new implement at
the disposal of the court. Use of this procedure is always discretionary with the court. The
jurisdiction of the courts is not expanded and requests for declaratory judgments may be heard
only in cases that otherwise are within their jurisdiction.
Any doubt or difficulty about the procedure in an action for a declaratory judgment should
disappear if the action is regarded as an ordinary civil action, as Rule 57 clearly intends. The
incidents of pleading, process, discovery, trial, and judgment are the same. Only when the nature
of the factual situation requires is a prayer for declaratory relief appropriate. The request for a
declaratory judgment is but a normal part of the ordinary civil action.
As Rule 57 expressly provides, the procedure for obtaining a declaratory judgment must
be "in accordance with these rules." Thus the requirements of pleading and practice in actions
for declaratory relief are exactly the same as in the other civil actions. Consequently, the action
is commenced by filing a complaint with the clerk and the issuance of a summons as provided
in Rules 3 and 4. A declaratory judgment may be obtained by "any interested party." The liberal
rules of joinder of parties provided by Rules 14 and 17 to 25 are equally beneficial in declaratory
judgment actions and the requirements of compulsory joinder of those needed for just
adjudication, set out in Rule 19, are fully applicable. The broad joinder of claims,
counter-claims, and cross-claims, made available by Rules 13 and 18, is available in a declaratory
action. Similarly, declaratory relief may be sought by a counter-claim or cross-claim. As in any
other action, the scope of relief to be granted in the action is limited to the issues made by the
pleadings and the evidence, and the decree can be no broader than the issue tried. Rule 54(c)
applies, however, and the court is to give whatever relief is justified by the evidence, regardless
of the demand in the complaint, except in the case of default. Summary judgment is as available
in these actions as in any others.
A plaintiff may ask for a declaratory judgment either as his sole relief or in addition or
auxiliary to other relief, and a defendant may similarly counterclaim therefor. Thus the court is
not limited only to remedial relief for acts already committed or losses already incurred; it may
either substitute or add preventive and declaratory relief. It may be sought upon either legal or
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equitable claims and the right to jury trial is fully preserved as in civil actions generally.
The granting of a declaratory judgment rests in the sound discretion of the trial court
exercised in the public interest. It is always the duty of the court to strike a proper balance
between the needs of the plaintiff and the consequences of giving the desired relief. The two
principal criteria guiding the policy in favor of rendering declaratory judgments are: (1) when the
judgment will serve a useful purpose in clarifying and setting the legal relations in issue, and (2)
when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving
rise to the proceeding.
One of the most important considerations that may induce a court to deny declaratory relief
is that the judgment sought would not settle the disputes between the parties. A declaratory
action need not be dismissed because it could not settle all possible differences between the
parties, but the courts should look with disfavor on piecemeal litigation of the disputed matters.
Rule 57(b) was amended in 2000 to authorize an injured party, where an insurer has
indicated that it may deny coverage of the injured party's claim, to seek a declaratory judgment
establishing coverage. The traditional rule in Mississippi barred any type of direct action by an
injured party against an insurer. Crum v. Mississippi Mun. Serv. Co., Inc., 1998 WL 378333
(N.D. Miss. 1998), citing Hunt v. Preferred Risk Mut. Ins. Co. 568 So. 2d 253; Westmorland v.
Raper, 511 So. 2d 884 (Miss. 1987); and Clark v. City of Pascagoula, 507 So. 2d 70 (Miss.
1987). The amendment modifies the traditional rule in the interest of judicial economy by
allowing a direct action for the limited purpose of a declaratory judgment.
Allowing the injured party to seek a declaration that the injured party's claim is covered
by the defendant's policy may reduce litigation costs. First, it may avoid unnecessary litigation
when the policy is the only asset that might satisfy the injured party's claim, because a
determination of non-coverage would avoid the need of trial of the claim against the insured.
In addition, if the injured party brings the claim for declaratory judgment together with the claim
against the insured, the rule may allow all of the issues growing out of an incident to be resolved
in a single judgment.
As emphasized elsewhere in this Comment, whether the insured may or should be joined
in the declaratory judgment action, and what other claims may be asserted, are issues to be
determined under the existing rules governing joinder of claims and parties. Where such joinder
is appropriate or necessary, the court retains discretion under Rule 42(b) to order separate trials
in whichever sequence the court finds most appropriate. Absent extraordinary circumstances, the
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failure to order separate trials in order to avoid putting the issue of insurance before the jury which tries
liability and damages as between the insured and the injured party will be deemed an abuse of discretion.
The amended rule does not affect the long-recognized right of an insurer to bring an action
for a declamatory judgment that a policy does not cover a particular claim. See, e.g., Coleman
v. Mississippi Farm Bureau Ins. Co., 708 So. 2d 6 (Miss. 1998). Nor does it affect the right of
the insured to bring suit to establish coverage.
Allowing the injured party to assert a claim for declaratory judgment does not alter M.R.E.
411, which limits the admissibility of evidence of insurance coverage in an action by the injured
party against an insured for damages.
[Amended effective July 27, 2000.]
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RULE 58. ENTRY OF JUDGMENT
Every judgment shall be set forth on a separate document which bears the title of
“Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which
has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have
the force and finality of a judgment even if it is not properly titled. A judgment shall be effective
only when entered as provided in M.R.C.P. 79(a).
[Amended effective July 1, 2001; amended effective May 27, 2004 to address finality of
improperly titled judgment.]
Advisory Committee Historical Note
Effective July 1, 1994, a new Rule 58 was adopted. 632-635 So.2d XXXII-XXXIII (West
Miss.Cases 1994).
[Adopted August 21, 1996.]
Comment
The purpose of Rule 58 is simply to provide a precise post-trial date from which periods
of time may be computed. Throughout these rules there are provisions for events which, when
performed, commence the running of a time period within which a responsive event must be
performed; e. g., a defendant must serve his answer within thirty days after service on him of the
summons and complaint, and a plaintiff must serve his reply to a counter-claim within thirty days,
Rule 12(a); answers to interrogatories to parties must be served within thirty days after service
of same, Rule 33(a); and objections to a master's report must be served within ten days after
notice of the report's having been filed, Rule 53(g)(1).
The times for taking post-trial action are computed from the date judgment is entered, as
provided in Rule 58; hence, a motion for a new trial must be filed within ten days of entry of
judgment, Rules 6(b), 59(b); a motion to alter or amend a judgment must be filed within ten days
of entry of judgment, Rules 6(b), 59(e); a motion for a stay of execution must be filed within ten
days of entry of judgment, Rule 62(a); and a motion for a directed verdict or for judgment, n. o.
v. must be filed within ten days of entry of judgment, Rule 50(b).
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Rule 58, as it now reads, requires that all final judgments must be entitled “Judgment.”
However, failure to properly title a judgment which fully adjudicates all claims in a case as to all
parties will not be deemed to prevent that judgment form being fully effective so long as it has
been entered as required in M.R.C.P. 79(a). Where a notice of appeal in a civil case is not timely
filed, if the failure to timely file was caused by an inappropriate or misleading title of judgment,
such failure may, under proper circumstances, constitute “excusable neglect” under M.R.A.P.
4(g). As now amended, the rule effectively overrules Thompson v. City of Vicksburg, 813 So.
2d 717 (Miss. 2002), Mullen v. Green Tree Financial Corp.-Miss, 730 So. 2d 9 (Miss. 1998), and
Roberts v. Gafe Auto Co., 653 So. 2d 250 (Miss. 1994) insofar as they hold that strict compliance
with the titling requirement is mandatory and prevents finality, even in the absence of prejudice.
[Comment amended effective July 1, 1997; amended effective May 27, 2004.]
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RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part
of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for
which new trials have heretofore been granted in actions at law in the courts of Mississippi;
and (2) in an action tried without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of Mississippi.
On a motion for a new trial in an action without a jury, the court may open the
judgment if one has been entered, take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and direct the entry of a new
judgment.
(b) Time for Motion. A motion for a new trial shall be filed not later than ten days after the
entry of judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they
shall be filed with the motion. The opposing party has ten days after service to file opposing
affidavits, which period may be extended for up to twenty days either by the court for good cause
shown or by the parties' written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than ten days after entry of judgment the court may on
its own initiative order a new trial for any reason for which it might have granted a new trial on
motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the
court may grant a timely motion for a new trial for a reason not stated in the motion. In either case,
the court shall specify in the order the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall
be filed not later than ten days after entry of the judgment.
[Amended effective July 1, 1997.]
Advisory Committee Historical Note
192
Effective July 1, 1997, Rule 59(b), (c) and (e) were amended to clarify that motions for
a new trial and accompanying affidavits, and motions to alter or amend a judgment, must be
filed not later that ten days after entry of judgment. 689 So. 2d XLIX (West Miss. Cases).
Comment
Rule 59 authorizes the trial judge to set aside a jury verdict as to any or all parts of the
issues tried and to grant a new trial as justice requires. This practice is not new to
Mississippi, but the procedures set forth in this rule are. The grounds for granting new trials
remain the same as under prior state practice; generally stated, however, the court has the
power and duty to set aside a verdict and order a new trial whenever, in its sound judgment,
such action is required. See generally 11 Miss. Digest, New Trial, Key numbers 13-108
(1972).
The motion must be filed within ten days after the entry of judgment. This is a
departure from prior Mississippi practice, National Cas. Co. v. Calhoun, 219 Miss. 9, 67
So.2d 908 (1953) (new trial may be ordered any time prior to expiration of court term), and is
authorized by MRCP 6(c). The ten-day period cannot be enlarged. MRCP 6(b)(2).
When the motion for new trial is based upon affidavits, they shall be filed and served
with the motion; the opposing party then has a maximum of thirty days in which to serve
counter-affidavits. MRCP 59(c).
Rule 59(d) allows the court on its own initiative to order a new trial, even though there
was no motion for a new trial, for any reason for which the court might have granted a new
trial on the motion of a party. Sanders v. State, 239 Miss. 874, 125 So.2d 923 (1961);
National Cas. Co. v. Calhoun, supra. If the court exercises this power, it must specify in its
order the grounds for the new trial.
If the court is acting entirely on its own initiative in ordering a new trial, it must make
the order not later than ten days after the entry of judgment and may not make such an order
after that period has expired.
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A motion to alter or amend must be filed within ten days after the entry of judgment;
the court is not permitted to extend this time period
See Rule 60(c) for reconsideration of an order transferring a case to another court.
[Comment amended effective July 1, 1997; amended effective July 1, 2008.]
194
RULE 60. RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the
record and errors therein arising from oversight or omission may be corrected by the court at
any time on its own initiative or on the motion of any party and after such notice, if any, as the
court orders 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.
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. 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 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.
This rule does not limit the power of a court to entertain an independent action to relieve a
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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.
(c) Reconsideration of transfer order. An order transferring a case to another court
will become effective ten (10) days following the date of entry of the order. Any motion for
reconsideration of the transfer order must be filed prior to the expiration of the 10-day period,
for which no extensions may be granted. If a motion for reconsideration is filed, all
proceedings will be stayed until such time as the motion is ruled upon; however, if the
transferor court fails to rule on the motion for reconsideration within thirty (30) days of the
date of filing, the motion shall be deemed denied.
[Amended effective July 1, 2008, to provide for reconsideration of transfer orders entered on
or after that date.]
Comment
Rule 60 (a) prescribes an efficient method for correcting clerical errors appearing in
judgments, orders, or other parts of a trial record; errors of a more substantial nature must be
corrected in accordance with MRCP 59(e) or 60(b). Thus, the Rule 60(a) procedure can be
utilized only to make the judgment or other document speak the truth; it cannot be used to
make it say something other than was originally pronounced. See, e. g., West Va. Oil & Gas
Co. v. Breece Lumber Co., 213 F.2d 704 (5th Cir. 1964). This procedure accords with prior
Mississippi practice. See Miss. Code Ann. § 11-1-19 (1972); Ralph v. Prester, 28 Miss. 744
(1855) (this statute applies solely to the correction of judgments and decrees and cannot be
extended so as to supply a judgment never rendered); Rawson v. Blanton, 204 Miss. 851, 35
So.2d 65 (1948) (judgment which is erroneous as to plaintiff's name involves merely a clerical
error which may be corrected in the supreme court without reversal); Healy v. Just, 53 Miss.
547 (1876) (there is no time limit within which a correction to a judgment may be made);
Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845 (1911) (all courts have inherent
power to correct clerical errors at any time and to make the judgment entered correspond to
that rendered).
196
Under Rule 60 (a), evidence dehors the record may be considered in making the
correction; this also accords with prior Mississippi practice. See Wilson v. Town of
Handsboro, supra (In making a determination as to whether the correction should be
permitted, any evidence of parol or other kind is competent which throws material light on the
truth of the matter. "The object of every litigation is to obtain . . . a final determination of the
rights of the parties. That determination is invariably what the judges direct, and not
invariably what the clerks record. The power of the court to make the record express the
judgment of the court with the utmost accuracy ought not to be restricted."). See also 6A
Moore's Federal Practice ¶¶ 60.01-.08 (1971); 11 Wright & Miller, Federal Practice and
Procedure, Civil §§ 2851-2856 (1973).
Rule 60(b) specifies certain limited grounds upon which final judgments may be
attacked, even after the normal procedures of motion for new trial and appeal are no longer
available. The rule simplifies and amalgamates the procedural devices available in prior
practice. Prior to MRCP 60(b), Mississippi recognized the following procedural devices for
relief from judgments, other than by appeal:
Statute for Correction of Misrecitals, Miss. Code Ann. § 11-1-19 (1972). This statute,
referred to in the preceding discussion of MRCP 60(a), supra, applied solely to corrections of
judgments and decrees and could not be extended to supply a decree or judgment never
rendered. See Ralph v. Prester, supra; Rawson v. Blanton, supra; V. Griffith, Mississippi
Chancery Practice, § 634 (2d ed. 1950).
Writ of Error Coram Nobis. Generally, this device was for review of errors of fact, not
of law, which substantially affected the validity of the judgment but which were not
discovered until after rendition of the judgment. See Petition of Broom, 251 Miss. 25, 168
So.2d 44 (1964). It was instituted as an independent action.
Bill of Review for Error Apparent. This device was an original bill, and was filed and
docketed as such. It cured a material error of law apparent on the face of the decree and the
pleadings and proceedings on which it is based, exclusive of the evidence. However, Miss.
Code Ann. § 11-5-121 (1972) placed a two-year limitation upon the period of time after the
judgment was entered for filing the bill. See Brown v. Wesson, 114 Miss. 216, 74 So. 831
(1917); V. Griffith, supra § 635.
Bill of Review Based on Newly Discovered Evidence. Leave of court was required for
the filing of a bill of review based on newly discovered evidence, but after leave was obtained
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the bill was considered as part of the action it sought to challenge. See V. Griffith, supra §§
636, 441. The two-year limitations of Miss. Code Ann. § 11-5-121 (1972) applied.
Bill in the Nature of a Bill of Review. This bill was available as an original action for
vacating judgments tainted by fraud, surprise, accident, or mistake as to facts, not to law. See
Corinth State Bank v. Nixon, 144 Miss. 674 110 So. 430 (1926); City of Starkville v.
Thompson, 243 So.2d 54 (Miss. 1971); V. Griffith, supra § 642. This device did not require
leave of court for filing, nor was it limited to two years' availability. Cf. Bill of Review for
Error Apparent and Bill of Review Based on Newly Discovered Evidence, supra.
Motions for relief under MRCP 60(b) are filed in the original action, rather than as
independent actions themselves. Further, motions seeking relief from judgments tainted by
fraud, misrepresentation, or other misconduct of an adverse party, MRCP 60(b)(1), accident
or mistake, 60(b)(2), or newly discovered evidence, 60(b)(3), must be made within six months
after the judgment or order was entered. Aside from these two features, Rule 60(b) does not
depart significantly from traditional Mississippi practice with respect to relief from
judgments, but it dispenses with the arcane writs and technical requirements of prior practice.
Importantly, a Rule 60(b) motion does not operate as a stay or supersedeas; further, in the
courts governed by these rules, Rule 60 supersedes the devices discussed above for relief
from judgments and orders.
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RULE 61. HARMLESSS ERROR
No error in either the admission or the exclusion of evidence and no error in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.
Comment
MRCP 61 is identical to Federal Rule 61 and accords with prior Mississippi practice.
See, e. g., Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817 (1930) (supreme court will
not reverse on basis of argument of counsel unless it is palpably evident that there has been
prejudice injected or misstatement of material facts); Yazoo & M. V. R. Co. v. Williams, 87
Miss. 344, 39 So. 489 (1905) (errors in instructions will not be cause for reversal where
interests of complaining party have not been prejudiced thereby); Freeze v. Taylor, 257 So.2d
509 (Miss. 1972) (granting of abstract instruction is not ordinarily reversible error unless it
tends to confuse and mislead the jury). No judgment shall be reversed on the ground of
misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to
the matter of pleading or procedure, unless it shall affirmatively appear, from the whole
record, that such judgment has resulted in a miscarriage of justice.
For discussions of Federal Rule 61, See 11 Wright & Miller, Federal Practice and
Procedure, Civil §§ 2881-2888 (1973); 7 Moore's Federal Practice Civil ¶¶ 61.01-.12 (1974).
199
RULE 62. STAY OF PROCEEDINGS TO
ENFORCE A JUDGMENT
(a) Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by
statute or by order of the court for good cause shown, no execution shall be issued upon a
judgment nor shall proceedings be taken for its enforcement until the expiration of ten days
after the later of its entry or the disposition of a motion for a new trial. Unless otherwise
ordered by the court, an interlocutory or final judgment in an action for an injunction or in a
receivership action shall not be stayed during the period after its entry and until an appeal is
taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule
govern the suspending, modifying, restoring, or granting of an injunction during the pendency
of an appeal.
(b) Stay on Motion. In its discretion and on such conditions for the security of the
adverse party as are proper, the court may stay the execution of or any proceedings to enforce
a judgment pending the disposition of a motion to alter or amend a judgment made pursuant
to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60(b), or
of a motion to set aside a verdict made pursuant to Rule 50(b), or of a motion for amendment
to the findings or for additional finding made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an interlocutory or final judgment has been
rendered granting, dissolving, or denying an injunction, the court in its discretion may
suspend, modify, restore, or grant an injunction during the pendency of an appeal from such
judgment upon such terms as to bond or otherwise as it considers proper for the security of
the rights of the adverse party. The power of the court to make such an order is not
terminated by the taking of the appeal.
(d) Stay Upon Appeal. When an appeal is taken, the appellant, when and as
authorized by statute or otherwise, may obtain a stay subject to the exceptions contained in
subdivision (a) of this rule.
(e) [Omitted].
(f) Stay in Favor of the State of Mississippi or Agency Thereof. When an appeal is
taken by the State of Mississippi or an officer or agency thereof or by direction of any
200
department of the government of same and the operation or enforcement of the judgment is
stayed, no bond, obligation, or other security shall be required of the appellant.
(g) Power of Appellate Court Not Limited. The provisions in this rule do not limit
any power of an appellate court or of a judge or justice thereof to stay proceedings during the
pendency of an appeal or to suspend, modify, restore, or grant an injunction during the
pendency of an appeal or to make any order appropriate to preserve the status quo or the
effectiveness of the judgment subsequently to be entered.
(h) Stay of Judgment Upon Multiple Claims or as to Multiple Parties. When a
court has ordered a final judgment under the conditions stated in Rule 54(b), the court may
stay enforcement of that judgment until the entering of a subsequent judgment or judgments
and may prescribe such conditions as are necessary to secure the benefit thereof to the party in
whose favor the judgment is entered.
[Amended effective July 1, 1997.]
Advisory Committee Historical Note
Effective July 1, 1997, Rule 62(a) was amended to clarify that the stay of enforcement of
a judgment expires ten days after the later of the entry of the judgment or the disposition of a
motion for a new trial, and Rule 62(b) was amended to state that a court may stay the execution
of or any proceedings to enforce a judgment pending the disposition of a motion to set aside a
verdict made pursuant to Rule 50(b). 689-692 So. 2d XLIX (West Miss. Cas. 1997).
Comment
Rule 62(a) provides for automatic stays of judgments, with certain exceptions, until ten
days after the later of either the entry of a judgment or the disposition of a motion for a new trial,
whichever last occurs. This stay applies only to judgments as defined in Rule 54(a), and it only
prevents enforcement of the judgment; it does not affect the appealability of the judgment nor
prevent the time for appeal from running. See Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d
839 (1955) (a judgment is not final until the motion for a new trial is overruled; the time period
for perfecting an appeal commences on the day after the motion for a new trial is overruled); but
201
cf. Miss. Code Ann. § 13-3-111 (1972) as amended by 1976 Miss. Laws, ch. 331 (clerks shall
issue executions on all judgments and decrees after close of term of court at request and on the
cost of the prevailing party).
The automatic stay permits the party against whom judgment has been entered to
determine what course of post-judgment action he wishes to follow. If he desires to attack the
judgment in the trial court by a motion for a new trial or a similar post-trial motion, he can make
his motion, thereby obtaining a stay pending disposition of the motion. If he prefers to appeal,
he can file a notice of appeal and seek a stay pending appeal as provided in Rule 62(c) and (d).
The automatic stay becomes ineffective ten days after the later of the entry of judgment
or the disposition of a motion for a new trial. Even though further stays are available, they only
can be had in accordance with the other subdivisions of Rule 62 and are not automatic but must
be ordered by the court. See 11 Wright & Miller, Federal Practice and Procedure, Civil §§
2901-2903 (1972); 7 Moore's Federal Practice ¶¶ 62.01-.10 (1972).
By expressed provision in Rule 62(a), different treatment is given to two classes of cases.
These are: (1) an interlocutory or final judgment in an action for an injunction; and (2) an
interlocutory or final judgment in a receivership action. In these two classes of actions the
judgment is not stayed during the period after its entry and until an appeal is taken, or during the
pendency of an appeal, "unless otherwise ordered by the court." Thus the automatic stay does
not apply in these two classes of cases, nor can a stay pending appeal be obtained in these cases
merely by filing a supersedeas bond. But the trial court, under Rule 62(c), and the appellate
court, under Rule 62(g), have ample power to make whatever order is appropriate in injunction
cases, and Rule 62(a) permits the trial court to order a stay in receivership cases in which an
accounting has been ordered. As is obvious from the fact that this class of cases is excepted from
the automatic stay of Rule 62(a), the court should not grant a stay in such cases as a matter of
course but should consider carefully the harm that a stay might cause to the party who has
obtained the judgment and balance this against the harm that denial of a stay would cause to the
losing party. See, e. g, Powell v. Maryland Trust Co., 125 F.2d 260 (4th Cir.), cert. denied 316
U.S. 671 [62 S. Ct. 1041, 86 L.Ed. 1746] (1942) (stay ordered in receivership action); American
St. Gobain Corp. v. Armstrong Glass Co., 300 F. Supp. 419 (D.Tenn.), appeal dismissed 418 F.2d
571 (6th Cir. 1969) (stay refused). See also 11 Wright & Miller, supra § 2902; 7 Moore's Federal
Practice, supra ¶ 62.03.
A post-trial motion seeking relief under Rule 60(b) does not stay the judgment. The party
in whose favor the judgment runs is free to have execution on it or to bring proceedings to
202
enforce it after the expiration of the automatic stay provided for in Rule 62(a). But if a post-trial
motion is made, the court is given discretion in Rule 62(b) to stay execution or enforcement of
the judgment pending disposition of the motion.
A stay under Rule 62(b) is discretionary with the court and may be "on such conditions
for the security of the adverse party as are proper." A stay may be granted under Rule 62(b) on
a motion to alter or amend a judgment under Rule 59(e), a motion for relief from a judgment
under Rule 60, a motion for judgment notwithstanding the verdict under Rule 50, or a motion for
amendment to the findings or for additional findings under Rule 52(b).
There is no automatic stay in actions for injunctions and in such an action a judgment,
whether interlocutory or final, may be stayed only by order of court. If no stay has been obtained,
an injunction remains in effect. If the court has denied an injunction and there has been no stay,
defendant is free to take the action sought to be enjoined, and if the event sought to be enjoined
transpires before the appeal is heard, the appeal should be dismissed as moot. See 11 Wright &
Miller, supra § 2904.
An application under Rule 62(c) or (g) necessarily goes to the discretion of the court. The
governing considerations are the same whether the application is to the trial court under
subdivision (c) or to an appellate court under subdivision (g). Thus it is generally required that
(A) the applicant make a strong showing that he is likely to succeed on the merits of the appeal;
(B) the applicant establish that unless a stay is granted he will suffer irreparable injury; (C) no
substantial harm will come to other interested parties; (D) a stay would do no harm to the public
interest. See Wright & Miller, supra; Belcher v. Birmingham Trust Nat. Bank, 395 F.2d 685 (5th
Cir. 1968); Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969); Fortune v. Molpus, 431 F.2d 799 (5th
Cir. 1970); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972).
If the court is satisfied that these considerations or other relevant considerations indicate
that an injunction should be stayed pending appeal, a stay will be granted. Otherwise the stay will
be denied. See Corpus Christi Ind. School Dist. v. Cisneros, 404 U.S. 1211 [92 S. Ct. 9, 30
L.Ed.2d 15] (1971) (stay granted); Dandridge v. Jefferson Parish School Bd., 404 U.S. 1219 [92
S. Ct. 18, 30 L.Ed.2d 23] (1971) (stay denied).
Subdivision (d) of Rule 62 tracks prior Mississippi practice with respect to stays and
supersedeas, subject to the subdivision (a) exceptions discussed above.
203
Subdivision (e) of the Federal Rules applies to stays in favor of the United States; it is
omitted from the Mississippi Rules of Civil Procedure.
Subdivision (f) exempts the State of Mississippi from giving security to obtain a stay of
judgment. This tracks prior practice under Miss. Code Ann. § 11-51-101 (1972).
Rule 62(g) is merely a declaration that whatever power an appellate court may possess to
stay proceedings during the pendency of an appeal is not infringed by any provision of Rule 62.
Rule 62(h) provides that if a court has ordered a final judgment under the conditions stated
in Rule 54(b), which allows the court to give judgment as to fewer than all of the claims or parties
in a case, the court may stay enforcement of that judgment until the entry of a subsequent
judgment or judgments and may prescribe such conditions as are necessary to secure the benefit
of the judgment to the party in whose favor it was entered. Thus the court is given a choice in
the matter: It may refuse a stay and allow immediate enforcement of the partial judgment it has
entered, or it may grant the stay and prevent enforcement of that judgment until judgment has
been given on the whole case. If a stay is entered, the court, if it sees fit, may require the party
against whom a judgment has been entered to file a bond securing payment of that judgment with
interest.
[Comment amended effective July 1, 1997.]
204
RULE 63. DISABILITY OF A JUDGE
(a) During Trial. If for any reason the judge before whom an action has been commenced
is unable to proceed with the trial, another judge regularly sitting in or assigned under law to the
court in which the action is pending may proceed with and finish the trial upon certifying in the
record that he has familiarized himself with the record of the trial; but if such other judge is
satisfied that he cannot adequately familiarize himself with the record, he may in his discretion
grant a new trial.
(b) After Verdict or Findings. If for any reason the judge before whom an action has
been tried is unable to perform the duties to be performed by the court after a verdict is returned,
or after the hearing of a nonjury action, then any other judge regularly sitting in or assigned under
law to the court in which the action was tried may perform those duties; but if such other judge
is satisfied that he cannot perform those duties, he may in his discretion grant a new trial.
Comment
Rule 63 authorizes the substitution of trial judges in pending actions in the event of
disability of the judge before whom the action was commenced. This authority applies equally
to the several judges in multi-judge districts as well as to judges of single-judge districts.
Importantly, this rule has nothing to do with the authority by which substitute judges are
detailed or assigned under law to the subject court; such is provided by statute. See, e. g., Miss.
Const. § 165 and Miss. Code Ann. §§ 9-1-13, -15, 11-1-11, and -15 (1972) (governor to
commission special judges and to fill judicial vacancies; parties may agree upon attorney to serve
as judge; proceedings in vacation when judge disqualified). The rule merely provides that such
substitute judge can perform certain judicial functions which heretofore may not have been
permitted.
For a discussion of Federal Rule 63, after which MRCP 63 was patterned, See 11 Wright
& Miller, Federal Practice and Procedure, Civil §§ 2921 et seq. (1973), and 7 Moore's Federal
Practice ¶¶ 63.01 et seq. (1972).
205
CHAPTER VIII. PROVISIONAL AND FINAL
REMEDIES AND SPECIAL PROCEEDINGS
RULE 64. SEIZURE OF PERSON OR PROPERTY
At the commencement of and during the course of an action, all remedies providing for
the seizure of person or property for the purpose of securing satisfaction of the judgment
ultimately to be entered in the action are available under the circumstances and in the manner
provided by law. These remedies include attachment, replevin, claim and delivery, sequestration
and other corresponding or equivalent remedies, however designated and regardless of whether
the remedy is ancillary to an action or must be obtained by an independent action.
[Amended effective September 1, 1987.]
Advisory Committee Historical Note
Effective September 1, 1987, Rule 64 was amended by deleting “garnishment” as a
prejudgment remedy included in the provisions of the Rule. 508-511 So. 2d XXIX (West Miss.
Cas. 1987).
Comment
The unpredictability of substantive elements of law applicable to seizures of persons or
property as security for satisfying a judgment that ultimately may be entered, due to recent
opinions of the Supreme Court of the United States, renders it impractical at this time to draft a
comprehensive procedural rule governing this area; See, e. g., Sniadach v. Family Finance Corp.,
395 U.S. 337 [89 S. Ct. 1820, 23 L.Ed.2d 349] (1969); Fuentes v. Shevin, 407 U.S. 67 [92 S. Ct.
1983, 32 L.Ed.2d 556] (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600 [94 S. Ct. 1895,
40 L.Ed.2d 406] (1974). It is intended that a comprehensive rule governing such procedure be
drafted in the future as the substantive law stabilizes.
Accordingly, Rule 64 provides that the provisional remedies available under Mississippi
law for the seizure of persons or property as security for satisfying a judgment that ultimately may
be entered in a civil action continue to be available under the MRCP. Those remedies are to be
resorted to in accordance with statutory law; see, e. g., Miss. Code Ann. §§ 11-19-1 et seq.
206
(ejectment); §§ 11-29-1 et seq. (sequestration); §§11-31-1 et seq. (attachment in chancery); §
11-33-1 et seq. (attachment at law); §§ 11-35-1 et seq. (garnishment); §§ 11-37-101 et seq.
(replevin); §§ 11-38-1 et seq. (claim and delivery); and §§ 11-43-1 et seq. (habeas corpus).
For discussions of Federal Rule 64, after which MRCP 64 was patterned, see 7 Moore's
Federal Practice ¶¶ 64.01-.10 (1972); 11 Wright & Miller, Federal Practice and Procedure, Civil
§§ 2931-2936 (1973).
RULE 65. INJUNCTIONS
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement
of the hearing on application for a preliminary injunction, the court may order the trial of the
action on the merits to be advanced and consolidated with the hearing of the application. Even
when this consolidation is not ordered, any evidence received upon an application for a
preliminary injunction which would be admissible upon the trial on the merits becomes part of
the record on the trial and need not be repeated upon a trial. This subdivision (a)(2) shall be so
construed and applied as to save to the parties any rights they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary
restraining order may be granted, without notice to the adverse party or his attorney if (1) it
clearly appears from specific facts shown by affidavit or by the verified complaint that immediate
and irreparable injury, loss or damage will result to the applicant before the adverse party or his
attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in
writing the efforts, if any, which have been made to give the notice and reasons supporting his
claim that notice should not be required. Every temporary restraining order granted without
notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's
office and entered of record; shall define the injury and state why it is irreparable and why the
order was granted without notice; and shall expire by its terms within such time after entry, not
to exceed ten days, as the court fixes (except in domestic relations cases, when the ten-day
limitation shall not apply), unless within the time so fixed the order for good cause shown is
extended for a like period or unless the party against whom the order is directed consents that it
may be extended for a longer period. The reasons for the extension shall be stated in the order.
207
In case a temporary restraining order is granted without notice, the motion for a
preliminary injunction shall be set down for hearing at the earliest possible time and take
precedence over all matters except older matters of the same character. When the motion comes
on for hearing the party who obtained the temporary restraining order shall proceed with the
application for a preliminary injunction and, if he does not do so, the court shall dissolve the
temporary restraining order.
On two days' notice to the party who obtained the temporary restraining order without
notice or on such shorter notice to that party as the court may prescribe, the adverse party may
appear and move its dissolution or modification and in that event the court shall proceed to hear
and determine such motion as expeditiously as the ends of justice require.
(c) Security. No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for the payment of
such costs, damages, and reasonable attorney's fees as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained; provided, however, no such security
shall be required of the State of Mississippi or of an officer or agency thereof, and provided
further, in the discretion of the court, security may not be required in domestic relations actions.
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order.
(1) Every order granting a restraining order shall describe in reasonable detail and not by
reference to the complaint or other document the act or acts sought to be restrained; it is binding
only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them who receive actual notice of the
order by personal service or otherwise.
(2) Every order granting an injunction shall set forth the reasons for its issuance; shall be
specific in terms; shall describe in reasonable detail and not by reference to the complaint or other
document the act or acts sought to be restrained; and is binding only upon the parties to the
action, their officers, agents, servants, employees, and attorneys, and upon those persons in active
concert or participation with them who receive actual notice of the order by personal service or
otherwise.
208
(e) Jurisdiction Unaffected. Injunctive powers heretofore vested in the circuit and
chancery courts remain unchanged by this rule.
Comment
Rule 65 makes several procedural changes in seeking and obtaining injunctive relief in
Mississippi, but the rule neither restricts nor enlarges the jurisdiction of courts to exercise, or the
propriety of exercising, injunctive relief; an injunction will continue to be available in those
situations where it would have been available prior to these rules.
In prior Mississippi injunctive relief practice, injunctions were divided into two functional
categories -- prohibitory injunctions and mandatory injunctions -- and, further, into two durational
subcategories -- interlocutory and final. See Miss. Code Ann. §§ 11-13-1 through 39 (1972); V.
Griffith, Mississippi Chancery Practice, § 442 (2d ed. 1950). Rule 65 has no effect on or
application to final, or permanent, injunctive relief; however, the rule divides what have been
referred to interchangeably as "interlocutory," "temporary," or "preliminary" injunctions (See V.
Griffith, supra,) into two subcategories: preliminary injunctions, Rule 65(a), and temporary
restraining orders, Rule 65(b). The latter may be issued ex parte without an adversary hearing
in order to prevent an immediate, irreparable injury and are of limited duration -- they typically
will remain in effect for a maximum 20 days. On the other hand, Rule 65(a)(1) requires that
notice be given to the opposing party before a preliminary injunction may be issued. Some type
of a hearing also implicitly is required by subdivision (a)(2), which provides either for the
consolidation of the trial on the merits with the preliminary injunction hearing, or the inclusion
in the trial record of any evidence received at the Rule 65(a) hearing. Furthermore, a preliminary
injunction normally lasts until the completion of the trial on the merits, unless it is dissolved
earlier by court order or the consent of the parties. Therefore, its duration varies and is controlled
by the nature of the situation in which it is utilized.
Rule 65(a) deals with the procedure on an application for a preliminary injunction.
Broadly defined, a preliminary injunction, under these rules, is an injunction issued to protect the
plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision
after a trial on the merits. 11 Wright & Miller, Federal Practice and Procedure, Civil § 2947
(1973). Thus, the court may issue a preliminary injunction even though plaintiff's right to relief
still is uncertain.
209
The circumstances in which a preliminary injunction may be granted are not prescribed
by these rules; the grant or denial of a preliminary injunction remains a matter for the trial court's
discretion, exercised in conformity with traditional equity practice. See V. Griffith, supra.
Although the fundamental fairness of preventing irremediable harm to a party is an
important factor on a preliminary injunction application, the most compelling reason in favor of
entering a Rule 65(a) order is the need to prevent the judicial process from being rendered futile
by defendant's action or refusal to act. On the other hand, judicial intervention before the merits
have been finally determined frequently imposes a burden on defendant that ultimately turns out
to have been unjustified. Consequently, the preliminary injunction is appropriate whenever the
policy of preserving the court's power to decide the case effectively outweighs the risk of
imposing an interim restraint before it has done so.
Rule 65(b) provides for injunctive relief without notice to the adverse party. This relief,
known as a temporary restraining order, can be accorded without notice provided that the verified
facts of the complaint clearly justify plaintiff's apprehension about the threat of irreparable injury.
Once entered, a temporary restraining order expires by its terms. During the time it is in
effect, extensions for good cause are permissible; the method of attack by the restrained party is
by motion to dissolve or modify. Upon application having been made for a temporary restraining
order, the court must immediately set a hearing on the companion motion for a preliminary
injunction. If the temporary restraining order application is denied, the plaintiff should press for
the hearing on the motion for a preliminary injunction. If the temprary restraining order is
granted, then the restrained defendant should press to set the hearing on the preliminary
injunction motion or on his motion to dissolve.
Under Rule 65(a)(2) the court can consolidate the hearing on the preliminary injunction
with the trial of the action on the merits; in the event consolidation is not ordered, the record upon
the hearing of the motion for preliminary injunction becomes a part of the record at the trial on
the merits.
Rule 65(c) continues to traditional practice of requiring security in injunction proceedings,
and vests in the sound discretion of the court the determination of the amount of security that will
be required. Cf. Miss. Code Ann. §§ 11-13-3 through -7, and -13 (1972). Agencies and officers
of the State of Mississippi are exempted from the requirements for posting security as a
prerequisite to obtaining an injunction; this accords with prior practice. See Miss. Code Ann. §
11-13-9 (1972).
210
Rule 65(d) is designed to protect those who are enjoined by informing them specifically
of what they are required to do or refrain from doing pursuant to the injunction or restraining
order; the ordinary person reading the court's order should be able to ascertain readily from the
document itself exactly what conduct is proscribed or mandated. See 11 Wright & Miller,
Federal Practice and Procedure, Civil § 2955 (1972); Brumby Metals, Inc. v. Bargen, 275 F.2d
46 (7th Cir. 1960) (An injunction may be set aside on appeal when "anyone reading the inunction
order cannot ascertain from the four corners of the order itself exactly what conduct was
enjoined.").
Rule 65 (e) is a reaffirmation that the injunctive powers Mississippi courts have had prior
to the rule remains intact, being neither abridged nor enlarged by the rule. See Miss. Code Ann.
§ 9-9-23 (county court may not issue writs of injunction, but may, when expressly directed in
writing by chancery court or circuit court, hear application for injunctive reliefs.
For detailed discussions of Federal Rule 65, after which MRCP 65 was patterned, See 11
Wright & Miller, supra §§ 2941-2962; 7 Moore's Federal Practice ¶¶ 65.01-.21 (1972).
211
65.1 SECURITY: PROCEEDINGS AGAINST SURETIES
Whenever these rules require or permit the giving of security by a party, and security is
given in the form of a bond or stipulation or other undertaking with one or more sureties, each
surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the
court as his agent upon whom any papers affecting the liability on the bond or undertaking may
be served. His liability may be enforced on motion without the necessity of an independent
action. The motion and such notice of the motion as the court prescribes may be served on the
clerk of the court, who shall forthwith mail copies to the suretiess if their addresses are known.
Comment
Each surety, by entering into a bond, stipulation, or other undertaking required or
permitted by these rules, submits himself to the jurisdiction of the court and irrevocably appoints,
the clerk of the court as his agent upon whom any papers affecting liability on the bond or
undertaking may be served; hence, a simple motion practice, rather than an independent action,
is provided for the enforcement of the surety's liability. The motion and such notice thereof as
the court prescribes may be served on the clerk of the court, who has a duty forthwith to mail
copies to the surety if his addres, s is known.
Illustrative of situations in which the giving of security might be permitted as required by
the rules are the following:
(1) as a condition to the various provisions for a stay of proceedings to enforce a
judgment; MRCP 62 (c), (h);
(2) as a condition to the granting of a temporary restraining order or preliminary
injunction; MRCP 65;
(3) for security for costs; MRCP 3(b).
See also 7 Moore's Federal Practice ¶¶ 65.1.01-.05 (1974); 11 Wright & Miller, Federal
Practice and Procedure, Civil §§ 2971-2974 (1973).
212
RULE 66. RECEIVERS
An action wherein a receiver has been appointed shall not be dismissed except by order
of the court. In all other respects the action in which the appointment of a receiver is sought or
which is brought by or against a receiver is governed by these rules.
Comment
Rule 66 is a limitation on parties' authority to dismiss civil actions without leave of court.
Cf. MRCP 41. When litigation has reached the point that appointment of a receiver is
necessitated and one is appointed, then the court has taken such an active involvement in the
action that it must, in the interest of guaranteeing equal security for all parties, ensure that the
action is not concluded until the object of the receivership is adjudicated.
With the exception of limiting parties' rights to dismiss without leave of court, Rule 66
provides that proceedings involving receivers are adjudicated in accordance with the provisions
of the Mississippi Rules of Civil Procedure.
Procedurally, Rule 66 does not depart from prior Mississippi receivership practice. See
Miss. Code Ann. §§ 11-5-151 through -167 (1972); V. Griffith, Mississippi Chancery Practice,
§§ 466-482 (2d ed. 1950).
213
RULE 67. DEPOSIT IN COURT
In any action in which any part of the relief sought is judgment for a sum of money or the
disposition of any other thing capable of delivery, a party, upon notice to every other party, and
by leave of court, may deposit with the court all or any part of such sum or thing.
Where money is paid into court to abide the result of any legal proceeding, the judge may
order it deposited at interest in a federally insured bank or savings and loan association authorized
to receive public funds, to the credit of the court in the action or proceeding in which the money
was paid. The money so deposited plus any interest shall be paid only upon the check of the clerk
of the court, annexed with its certified order for the payment, and in favor of the person to whom
the order directs the payment to be made.
Comment
Rule 67 applies in an action "in which any part of the relief sought is a judgment for a sum
of money or the disposition of a sum of money or the disposition of any other things capable of
delivery." A party may deposit with the court all or any part of the sum or thing, but must give
notice to every other party and must obtain leave of court to make the deposit.
The purpose of the deposit is to relieve the depositor of responsibility for a fund in dispute.
It is useful in cases of interpleader and of tender of an undisputed sum. However, this procedural
device does not institute a civil action joining the claimants of the disputed res, as does an
interpleader action. Cf. MRCP 22; See also V. Griffith, Mississippi Chancery Practice, §§
522-526 (2d ed. 1950) (tender and payment into court).
214
RULE 68. OFFER OF JUDGMENT
At any time more than fifteen days before the trial begins, a party defending against a
claim may serve upon the adverse party an offer to allow judgment to be taken against him for
the money or property or to the effect specified in his offer, with costs then accrued. If within
ten days after the service of the offer the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice of acceptance together with proof of
service thereof and thereupon the court shall enter judgment. An offer not accepted shall be
deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the
offeree must pay the cost incurred after the making of the offer. The fact that an offer is made
but not accepted does not preclude a subsequent offer. When the liability of one party to another
has been determined by verdict, order or judgment, but the amount or extent of the liability
remains to be determined by further proceedings, the party adjudged liable may make an offer
of judgment, which shall have the same effect as an offer made before trial if it is served within
a reasonable time, not less than ten days, prior to the commencement of hearing to determine the
amount or extent of liability.
Comment
Rule 68 is intended to encourage settlements, avoid protracted litigation, and protect the
party who is willing to settle from the burden of costs that subsequently accrue.
Although the privilege of an offer of settlement is extended only to the party defending
against a claim, it furnishes a just procedure to all parties concerned. It is fair to the claimant
because it does the defending party no good to make an offer of judgment that is not what the
claimant might reasonably be expected to recover; he will not free himself of the costs if the
judgment recovered is more than the offer. Likewise, it is fair to the defending party because it
allows him to free himself of the court costs by offering to make a settlement. Finally, it benefits
the court because it encourages settlements and discourages vexatious suits. See 12 Wright &
Miller, Federal Practice and Procedure, Civil §§ 3001-3005 (1973); 7 Moore's Federal Practice
¶¶ 68.01-.06 (1974).
MRCP 68 requires an offer of judgment to be made at least fifteen days before the trial
is scheduled to begin; the offer must be accepted, if at all, at least five days before trial to prevent
the accrual of costs. This provision will also tend to prevent parties from making needless
215
preparation for trial. Cf. Fed.R.Civ.P. 68 (offer must be made at least ten days before trial; must
be accepted before trial day).
216
RULE 69. EXECUTION
(a) Enforcement of Judgment. Process to enforce a judgment for the payment of money
shall be by such procedures as are provided by statute. The procedure on execution, in
proceedings supplementary to and in aid of judgment, and in proceedings on and in aid of
execution, shall be as provided by statute.
(b) Examination by Judgment Creditor. To aid in the satisfaction of a judgment of
more than one hundred dollars, the judgment creditor may examine the judgment debtor or any
other person, including the books, papers, or documents of same, upon any matter not privileged
relating to the debtor's property.
The judgment creditor may examine the judgment debtor or other person in open court as
provided by statute or may utilize the discovery procedures stated in Rules 26 through 37 hereof.
Comment
Rule 69(a) provides that the traditional Mississippi legal devices continue to be available
for the enforcement of judgments, and that the statutory procedures governing their use still
prevail; there is no departure from prior law; See generally Miss. Code Ann. § 11-5-81 (fieri
facias and garnishment to enforce chancery decrees for money); § 11-5-83 (sheriff to execute
decrees); § 11-5-85 (decree to operate as conveyance); §§ 11-35-1 to 11-35-61 (general
garnishment procedures); § 13-3-111 (time when execution shall be issued); § 13-3-113, et seq.
(issuance, execution, and return of execution) (1972).
Rule 69(b) authorizes examinations of judgment debtors by two different processes. The
creditor may proceed for an examination pursuant to Miss. Code Ann. §§ 13-1-261 et seq.
(1972), the examination of judgment debtor statutes, or he may proceed pursuant to the discovery
provisions of the Mississippi Rules of Civil Procedure.
[Amended effective September 1, 1987.]
217
RULE 70. JUDGMENT FOR SPECIFIC ACTS;
VESTING TITLE
(a) Specific Acts. If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act and the party fails to
comply within the time specified, the court may direct the act to be done at the cost of the
disobedient party by some other person appointed by the court and the act when so done has like
effect as if done by the party.
(b) Divestment of Title. If real or personal property is within the State of Mississippi, the
court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any
party and vesting it in others; such judgment has the effect of a conveyance executed in due form
of law.
(c) Delivery of Possession. When any order or judgment is for the delivery of possession,
a certified copy of the judgment or order shall be sufficient authority for the sheriff of the county
in which the property is located to seize same and deliver it to the party entitled to its possession.
(d) Contempt. The court may also in proper cases adjudge the party in contempt.
Comment
The purpose of Rule 70 is to provide ample power to the courts for dealing effectively
with parties who seek to thwart judgments by refusing to comply with orders or perform specific
acts.
Rule 70 applies only after judgment is entered; Rules 64 and 65 provide for remedies prior
to judgment. Rule 70 applies only if a judgment directs a party to execute a conveyance of land
or to deliver deeds or other documents or to perform only other specific acts and the party has
failed to comply within the time specified. See 7 Moore's Federal Practice ¶¶ 70.01-.03 (1974);
12 Wright & Miller, Federal Practice and Procedure, Civil §§ 3021, 3022 (1973).
This rule is intended primarily to preclude recalcitrant parties from frustrating court orders
for the performance of specific acts; however, the rule relies upon specific orders, issued by the
218
court or by the clerk, rather than upon arcane writs, to achieve performance pursuant to, or
conformity with, judgments. Thus, under Rule 70(a) the court may designate a person to perform
that act which a party refuses or fails to perform. See, e. g., Carpenter v. Douglass, 104 Miss.
83, 61 So. 161 (1913) (the court has power to appoint a commissioner to execute deeds if
necessary to effectuate fully the ends of justice); Miss. Code Ann. § 11-5-85 (1972) (court may
appoint commissioner to execute writing).
In the event all interest in realty or personalty is divested out of one party and vested in
another by a judgment, Rule 70(b) provides that the judgment itself serves as the instrument of
conveyance of such title. This procedure also conforms to the traditional Mississippi practice on
writs of assistance and possession. See V. Griffith, Mississippi Chancery Practice, § 651 (2d ed.
1950).
Rule 70(c) authorizes the same procedure as the traditional writ of seizure in Mississippi
practice for the taking of personalty from one in possession thereof and physically placing it in
the possession of the successful litigant. This practice is referred to in some jurisdictions as a
writ of assistance or sequestration; whatever its label the practice is familiar to Mississippi
practitioners. See V. Griffith, supra § 663, nn. 70, 71, at 663. This rule also authorizes that
possession of realty be surrendered to the successful litigant out of possession, as was formerly
done pursuant to the writ of assistance, or writ of possession, as it was often called. See V.
Griffith, supra § 651.
Finally, Rule 70(d) recites that courts may avail themselves of the traditional powers of
contempt to enforce judgments; See Miss. Code Ann. §§ 9-1-17, 9-5-87 (1972); V. Griffith, supra
§§ 664 et seq.
219
RULE 71. PROCESS IN BEHALF OF AND AGAINST
PERSONS NOT PARTIES
When an order is made in favor of a person who is not a party to the action, other than a
creditor of a party to a divorce proceeding, he may enforce obedience to the order by the same
process as if he were a party; and when obedience to an order may be lawfully enforced against
a person who is not a party, he is liable to the same process for enforcing obedience to the order
as if he were a party.
Comment
Rule 71 makes all orders fully enforceable in favor of and against all persons who are
properly affected thereby, even though not parties to the action. For example, a court may make
an order in favor of one not a party, such as when a foreclosure sale is made and the court orders
the property delivered to the purchaser or his assignee; the purchaser or his assignee is then
entitled to any process available to enforce the order that would otherwise be available to a party
to the action. See, e. g, Woods v. O'Brien, 78 F. Supp. 221 (D.Mass.1948); United States v.
Hackett, 123 F. Supp. 104 (W.D.Mo.1954); See also 7 Moore's Federal Practice, ¶¶ 71.01-.04
(1974); 12 Wright & Miller, Federal Practice and Procedure, Civil §§ 3031-3033 (1973).
Rule 71 has been drafted so as to exclude specifically creditors of a party to a divorce
proceeding. For example, if the court ordered the husband to pay for certain household
appliances to be used by the ex-wife, the vendor of the appliances would not be entitled to take
advantage of this rule.
220
RULE 71A. [EMINENT DOMAIN]
[RESERVED]
Comment
No counterpart to Federal Rule 71A, Condemnation of Property, has, as yet, been
proposed for inclusion in the Mississippi Rules of Civil Procedure. More time than has thus far
been available will be required for drafting a comprehensive rule governing eminent domain
proceedings in Mississippi. Indeed, Federal Rule 71A drew more attention from the Federal
Advisory Committee on Rules of Civil Practice and Procedure, and was drafted over a longer
period of time, than any of the other federal rules; the rule was on the drawing boards from 1937
until 1951. See 12 Wright & Miller, Federal Practice and Procedure, Civil § 3041 (1972).
MRCP 71A is reserved for future consideration.
221
CHAPTER IX. APPEALS
RULES 72 TO 76. [OMITTED]
Comment
Federal Rules 72-76 formerly covered the subject of appeals. Those rules were abrogated
by the Supreme Court of the United States on July 1, 1968. Rules 72-76 of the Mississippi Rules
of Civil Procedure are omitted in the interest of maintaining a rules numbering system that
corresponds with their federal counterpart.
New procedures for taking appeals to the Mississippi Supreme Court were adopted as of
January 1, 1988, officially designated Mississippi Supreme Court Rules, and may be cited as
Miss.Sup.Ct.R. No. . They modify or supplant the previous Supreme Court Rules and statutes
pertaining thereto and should be followed in order to perfect an appeal to that Court.
[Amended effective March 1, 1989.]
222
CHAPTER X. COURTS AND CLERKS
RULE 77. COURTS AND CLERKS
(a) Court Always Open. The courts shall be deemed always open for the purposes of
filing any pleading or other proper paper, of issuing and returning process, and of making and
directing all interlocutory motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be
conducted in open court, except as otherwise provided by statute. All other acts or proceedings
may be done or conducted by a judge in chambers, without the attendance of the clerk or other
court officials and at any place within the state either within or without the district; but no hearing
shall be conducted outside the district without the consent of all parties affected thereby.
(c) Clerk's Office and Orders by Clerk. The clerk's office with the clerk or a deputy
clerk in attendance shall be open during business hours on all days except Saturdays, Sundays,
and legal holidays. All motions and applications to the clerk for issuing process, for issuing
process to enforce and execute judgments, for entering defaults, and for other proceedings which
do not require allowance or order of the court are grantable of course by the clerk; but his action
may be suspended or altered or rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment
the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party
who is not in default for failure to appear, and shall make a note in the docket of the service. Any
party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service
of papers. Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve,
nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as
permitted by the Mississippi Rules of Appellate Procedure.
[Amended effective July 1, 1997.]
Advisory Committee Historical Note
Effective July 1, 1997, Rule 77(d) was amended to allow for service of notices of the entry
of orders and judgments by parties. 689-692 So. 2d LXII (West Miss. Cas. 1997.)
223
Effective February 1, 1990, Rule 77 was amended by adding subsection (d), requiring the
clerk of the court to give notice of the entry of orders and judgments to the interested parties.
553-556 So. 2d XLII (West Miss. Cas. 1990).
Comment
Rule 77(a) provides that the courts shall be deemed always open for the purpose of filing
papers and issuing and returning process and making motions and orders. This does not mean
that the office of the clerk must be physically open at all hours or that the filing of papers can be
effected by leaving them in a closed or vacant office. Under Rule 5(e) papers may be filed out
of business hours by delivering them to the clerk or deputy clerk, or in case of exceptional
necessity, the judge. See Miss.Const. § 24 (all courts shall be open).
Rule 77(b) requires that the "trial of all cases upon the merits" be conducted in "open
court"; all other acts or proceedings may be done or conducted by a judge "in chambers," without
the necessity of the attendance of the clerk or other court official and at any place within the state.
However, no hearing, other than one heard ex parte, shall be conducted outside the geographic
area served by the court without the consent of all parties affected thereby. See V. Griffith,
Mississippi Chancery Practice, § 557 (2d ed. 1950).
Rule 77(c) requires that the clerk's office, with the clerk or a deputy in attendance, be open
during business hours on all days except Saturdays, Sundays, and legal holidays Rule 77(c) also
provides that the clerk may issue process and make record entries that do not require the
allowance or the order of the court, such as motions and applications for issuance of process, for
issuing final process to enforce and execute a judgment, and for entering defaults. See Miss.
Code Ann. § 9-1-27 (1972).
Rule 77(d) requires that the clerk provide copies of all orders and judgments, immediately
upon their entry, to all parties who are not in default for failure to appear. This rule is
substantially the same as Rule 77(d) of the Federal Rules of Civil Procedure.
Rule 77(d) was amended in 1997 to provide that parties may serve notice of the entry of
a judgment or order on all other parties. This revision was a companion to a concurrent
amendment adding present subsection (h) to Rule 4 of the Mississippi Rules of Appellate
Procedure, whose purpose is to permit trial courts to ease strict sanctions now imposed on
appellants whose notices of appeal are filed late because of their failure to receive notice of entry
224
of a judgment or order. See, e.g., Bank of Edwards v. Cassity Auto Sales, Inc., 599 So. 2d 579
(Miss. 1992); Schmitt v. Capers, 573 So. 2d 773 (Miss. 1990); Moore v. Wax, 554 So. 2d 312
(Miss. 1989); Tandy Electronics, Inc. v. Fletcher, 554 So. 2d 308 (Miss. 1989). M ISS. R. A PP.
P. 4(h) now provides a limited opportunity for relief in circumstances where the notice of entry
of a judgment or order, required to be mailed by the clerk of the trial court pursuant to M ISS. R.
C IV. P. 77(d), is either not received by a party or is received so late as to impair the opportunity
to file a timely notice of appeal.
Failure to receive notice may have increased in frequency with the growth in the caseload in
the clerks' offices. The present strict rule imposes a duty on counsel to maintain contact with the
court while a case is under submission. Such contact is more difficult to maintain as caseloads
have increased, and can be a burden to the court as well as counsel.
M ISS. R. C IV. P. 77(d) and M ISS. R. A PP. P. 4(h) thus combine to place a burden on prevailing
parties who desire certainty that the time for appeal is running. Such parties can take the
initiative to assure that their adversaries receive effective notice. An appropriate procedure for
such notice is provided in Rule 5. While these Rules lighten the responsibility of the clerks’
offices, they do not diminish the workload, for the clerk’s duty to give notice of entry of
judgments and orders is maintained.
[Amended effective February 1, 1990; July 1, 1997.]
225
RULE 78. MOTION PRACTICE
Each court shall establish procedures for the prompt dispatch of business, at which
motions requiring notice and hearing may be heard and disposed of; but the judge at any time or
place and on such notice, if any, as he considers reasonable may make orders for the
advancement, conduct, and hearing of actions.
To expedite its business, the court may make provision by rule or order for the submission
and determination of motions without oral hearing upon brief written statements of reasons in
support and opposition.
[Amended effective March 1, 1989; amended effective April 17, 2003 to allow the courts, by
rule to provide for determination of motions seeking final judgment without oral argument.]
Advisory Committee Historical Note
Effective March 1, 1989, Rule 78 was amended by changing its title to “MOTION
PRACTICE” and by abrogating provisions for local rules. 536-538 So. 2d XXXI (West Miss.
Cas. 1989).
Comment
Rule 78 requires each court to provide for the manner of submission and determination
of motions requiring notice and a hearing.
The second paragraph of the rule permits any court to expedite its business by the adoption
of local rules or orders providing for the submission and determination of "motions without oral
hearing upon brief written statements of reasons in support and opposition."
Motion practice has been accomplished in numerous ways in Mississippi prior to the
adoption of these rules. For an idea of the variety of practices in the courts See, e. g, Local Rule
I.C. -- E., Sixth Chancery Court District; Local Rule Designating Vacation Day, and Local Rule
for Procedures for Vacation Day Hearings in Greenwood, Seventh Chancery Court District; Local
Rule 13, Eighth Chancery Court District; Local Rule 2, Seventeenth Chancery Court District;
226
Local Rule 5, Thirteenth Circuit Court District; Local Rule 7(a), Sixteenth Circuit Court District;
Local Rule 5, Eighteenth Circuit Court District; Local Rule 8, Bolivar County Court.
Rule 78 does not alter any local rules governing motion practice; however, the rule must
be considered in the light of MRCP 83, which requires that all local rules be forwarded to and
published by the Supreme Court of Mississippi.
[Comment amended effective March 1, 1989.]
227
RULE 79. BOOKS AND RECORDS KEPT BY THE CLERK
AND ENTRIES THEREIN
(a) General Docket. The clerk shall keep a book known as the "general docket" of such
form and style as is required by law and shall enter therein each civil action to which these rules
are made applicable. The file number of each action shall be noted on each page of the docket
whereon an entry of the action is made. All papers filed with the clerk, all process issued and
returns made thereon, all appearances, orders, verdicts, and judgments shall be noted in this
general docket on the page assigned to the action and shall be marked with its file number. These
entries shall be brief but shall show the nature of each paper filed or writ issued and the substance
of each order or judgment of the court and of the returns showing execution of process. The
entry of an order or judgment shall show the date the entry is made. In the event a formal order
is entered, the clerk shall insert the order in the file of the case.
(b) Minute Book. The clerk shall keep a correct copy of every judgment or order. This
record shall be known as the "Minute Book."
(c) Indexes; Calendars. Suitable indexes of the general docket shall be kept by the clerk
under the direction of the court. There shall be prepared, under the direction of the court,
calendars of all actions ready for trial.
(d) Other Books and Records. The clerk shall also keep such other books and records
as may be required by statute or these rules. The documents required to be kept under this rule
may be recorded by means of an exact-copy photocopy process.
(e) Removing the File in a Case. The file of a case shall not be removed from the office
of the clerk except by permission of the court or the clerk.
Advisory Committee Historical Note [Rule 79]
Effective April 1, 2002, the Comment to Rule 79(a) was amended to underscore that
docket entries must accurately reflect the actual date of entry. 813-815 So.2d LXXXVIII (West
Miss.Cases 2002).
Comment
228
Rule 79(a) requires that the clerk of each court maintain a general docket, which is a
chronological log of activities in civil actions. The requirements of this rule add nothing new
to traditional Mississippi practice. See Miss. Code Ann. §§ 9-5-201 (chancery clerk to maintain
general docket for chancery court); 9-7-171 (circuit clerk to maintain general docket for circuit
court); 9-9-29 (circuit clerk to maintain general docket for county court) (1972). Rule 79(a) also
specifies that the docket entries reflect the date on which the entries are made in the general
docket. Since several important time periods and deadlines are calculated from the date of the
entry of judgments and orders, these entries must accurately reflect the actual date of the entries
rather than another date, such as the date on which a judgment or order is signed by the judge.
See, for example, Rule 58 mandating that a judgment is effective only when entered as provided
in Rule 79(a), and Rule 59 which requires that motions to alter or amend judgments be filed
within ten days after the entry of judgment.
The minute book required to be maintained by Rule 79(b) is also familiar to Mississippi
practitioners, See Miss. Code Ann. §§ 9-1-33 (minutes of circuit, chancery, and county courts to
be maintained by clerk of each), 9-5-135 (chancery clerk to maintain minute book for chancery
court). Rule 79(b) makes no changes in minute book practices.
Rule 79(c) merely requires that clerks of court keep suitable indexes of the civil docket;
again, this tracks prior practice. See, e. g., Miss. Code Ann. § 9-5-201 (1972) (general docket
shall be duly indexed). Subdivision (d) directs that clerks shall maintain such other records as
may be required and recognizes that exact-copy photocopying Is a most useful and acceptable
tool for the record-keeping functions.
Rule 79(e) is intended to ensure that the removal of case files from the clerk's office Is an
exceptional, rather than routine, practice. Under the notice pleadings provision of the Mississippi
Rules of Civil Procedure, "every order required by its terms to be served, every pleading
subsequent to the original complaint . . ., every paper relating to discovery required to be served
. . ., every written motion . . ., and every written notice, appearance, demand, offer of judgment,
designation of record on appeal, and similar paper shall be served on each of the parties." MRCP
5(b). Since each party in a civil action will have copies of all such papers, their office files
should be as complete as the court's file, thereby obviating any need to remove the court's file.
This provision modifies Miss. Code Ann. § 9-5-165 (1972) only to the extent it limits removal
of court files.
229
RULE 80. [STENOGRAPHIC REPORT OR TRANSCRIPT
AS EVIDENCE] [OMITTED)]
Comment
When Federal Rule 80 was adopted, subdivisions (a) and (b) permitted a court to appoint
a stenographer to make a transcript of testimony in a particular case or to appoint official
stenographers, and to tax their fees as costs of the action. The Court Reporter Act of 1948, 28
U.S.C.A. § 753, superseded subdivisions (a) and (b) of the federal rule. 12 Wright & Miller,
Federal Practice and Procedure, Civil § 3121 (1973). All that remains of Federal Rule 80 is
subdivision (c), which states as follows:
Stenographic Report or Transcript as Evidence. Whenever the testimony
of a witness at a trial or hearing which was stenographically reported is admissible
in evidence at a later trial, it may be proved by the transcript thereof duly certified
by the person who reported the testimony.
Mississippi has made statutory provisions for the appointment, oath, nature and term of
office, bond, removal from office, and duties and responsibilities of court reporters. See Miss.
Code Ann. §§ 9-13-1 et seq. (1972). Additionally, Mississippi has a statutory equivalent of
Federal Rule 80(c), Miss. Code Ann. § 9-13-43 (1972); therefore, no rule is necessary to make
an official transcript acceptable proof of testimony.
230
RULE 81. APPLICABILITY OF RULES
(a) Applicability in General. These rules apply to all civil proceedings but are subject
to limited applicability in the following actions which are generally governed by statutory
procedures.
(1) proceedings pertaining to the writ of habeas corpus;
(2) proceedings pertaining to the disciplining of an attorney;
(3) proceedings pursuant to the Youth Court Law and the Family Court Law;
(4) proceedings pertaining to election contests;
(5) proceedings pertaining to bond validations;
(6) proceedings pertaining to the adjudication, commitment, and release of narcotics and
alcohol addicts and persons in need of mental treatment;
(7) eminent domain proceedings;
(8) Title 91 of the Mississippi Code of 1972;
(9) Title 93 of the Mississippi Code of 1972;
(10) creation and maintenance of drainage and water management districts;
(11) creation of and change in boundaries of municipalities;
(12) proceedings brought under sections 9-5-103, 11-1-23, 11-1-29, 11-1-31, 11-1-33,
11-1-35, 11-1-43, 11-1-45, 11-1-47, 11-1-49, 11-5-151 through 11-5-167, and 11-17-33,
Mississippi Code of 1972.
231
Statutory procedures specifically provided for each of the above proceedings shall remain
in effect and shall control to the extent they may be in conflict with these rules; otherwise these
rules apply.
(b) Summary Proceedings. In ex parte matters where no notice is required proceedings
shall be as summary as the pertinent statutes contemplate.
(c) Publication of Summons or Notice. Whenever a statute requires summons or notice
by publication, service in accordance with the methods provided in Rule 4 shall be taken to
satisfy the requirements of such statute.
(d) Procedure in Certain Actions and Matters. The special rules of procedure set forth
in this paragraph shall apply to the actions and matters enumerated in subparagraphs (1) and (2)
hereof and shall control to the extent they may be in conflict with any other provision of these
rules.
(1) The following actions and matters shall be triable 30 days after completion of service
of process in any manner other than by publication or 30 days after the first publication where
process is by publication, to-wit: adoption; correction of birth certificate; alteration of name;
termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support;
determination of heirship; partition; probate of will in solemn form; caveat against probate of
will; will contest; will construction; child custody actions; child support actions; and
establishment of grandparents' visitation.
(2) The following actions and matters shall be triable 7 days after completion of service
of process in any manner other than by publication or 30 days after the first publication where
process is by publication, to wit: removal of disabilities of minority; temporary relief in divorce,
separate maintenance, child custody, or child support matters; modification or enforcement of
custody, support, and alimony judgments; contempt; and estate matters and wards' business in
which notice is required but the time for notice is not prescribed by statute or by subparagraph
(1) above.
(3) Complaints and petitions filed in the actions and matters enumerated in subparagraphs
(1) and (2) above shall not be taken as confessed.
232
(4) No answer shall be required in any action or matter enumerated in subparagraphs (1)
and (2) above but any defendant or respondent may file an answer or other pleading or the court
may require an answer if it deems it necessary to properly develop the issues. A party who fails
to file an answer after being required so to do shall not be permitted to present evidence on his
behalf.
(5) Upon the filing of any action or matter listed in subparagraphs (1) and (2) above,
summons shall issue commanding the defendant or respondent to appear and defend at a time and
place, either in term time or vacation, at which the same shall be heard. Said time and place shall
be set by special order, general order or rule of the court. If such action or matter is not heard on
the day set for hearing, it may by order signed on that day be continued to a later day for hearing
without additional summons on the defendant or respondent. The court may by order or rule
authorize its clerk to set such actions or matters for original hearing and to continue the same for
hearing on a later date.
(6) Rule 5(b) notice shall be sufficient as to any temporary hearing in a pending divorce,
separate maintenance, custody or support action provided the defendant has been summoned to
answer the original complaint.
(e) Proceedings Modified. The forms of relief formerly obtainable under writs of fieri
facias, scire facias, mandamus, error coram nobis, error coram vobis, sequestration, prohibition,
quo warranto, writs in the nature of quo warranto, and all other writs, shall be obtained by
motions or actions seeking such relief.
(f) Terminology of Statutes. In applying these rules to any proceedings to which they
are applicable, the terminology of any statute which also applies shall, if inconsistent with these
rules, be taken to mean the analogous device or procedure proper under these rules; thus (and
these examples are intended in no way to limit the applicability of this general statement):
Bill of complaint, bill in equity, bill, or declaration shall mean a complaint as specified
in these rules;
Plea in abatement shall mean motion;
Demurrer shall be understood to mean motion to strike as set out in Rule 12(f);
233
Plea shall mean motion or answer, whichever is appropriate under these rules;
Plea of set-off or set-off shall be understood to mean a permissible counter-claim;
Plea of recoupment or recoupment shall refer to a compulsory counter-claim;
Cross-bill shall be understood to refer to a counter-claim, or a cross-claim, whichever is
appropriate under these rules;
Revivor, revive, or revived, used with reference to actions, shall refer to the substitution
procedure stated in Rule 25;
Decree pro confesso shall be understood to mean entry of default as provided in Rule 55;
Decree shall mean a judgment, as defined in Rule 54;
(g) Procedure Not Specifically Prescribed. When no procedure is specifically
prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution
of the State of Mississippi, these rules, or any applicable statute.
[Amended effective June 24, 1992; April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 81(d)(5) was amended to make a continuance effectual on
a signed rather than an entered order. 753-754 So. 2d XVII) (West Miss.Cas. 2000.)
Effective June 24, 1992, Rule 81(h) was deleted. 598-602 So. 2d XXIII-XXIV (West
Miss. Cas. 1992).
Effective January 1, 1986, Rule 81(a) was amended by adding subsections (10) – (12);
Rule 81(b) was amended by deleting examples and by deleting a provision that no answers are
234
required in ex parte matters; Rule 81(d) was rewritten to provide for proceedings in a number of
specified actions and to abrogate its treatment of domestic relations matters. 470-473 So. 2d
XVI-XVIII (West Miss. Cas. 1986).
Comment
Rule 81 complements Rule 1 by specifying which civil actions are governed only partially,
or not at all, by the provisions of the M.R.C.P.
Rule 81(a) lists 12 categories of civil actions which are not governed entirely by the
M.R.C.P. In each of those actions there are statutory provisions detailing certain procedures to
be utilized. See generally Miss. Code Ann. §§ 11-43-1, et seq., (habeas corpus); 73-3-301, et
seq., (disciplining of attorneys); 43-21-1, et seq., (youth court proceedings); 43-23-1, et seq.,
(family court proceedings); 23-5-187 (election contests); 31-13-1, et seq., (bond validation);
41-21-61, et seq., (persons in need of mental treatment); 41-30-1, et seq., (adjudication,
commitment and release of alcohol and drug addicts); 11-27-1, et seq., (eminent domain); 91-1-1,
et seq., (trusts and estates); 93-1-1, et seq., (domestic relations); 51-29-1, et seq., and 51-31-1,
et seq., (creation and maintenance of drainage and water management districts); 21-1-1, et seq.,
(creation of and change in boundaries of municipalities); and those proceedings identified in
category (12) by their Code Title as follows: 9-5-103 (bonds of receivers, assignees, executors
may be reduced or cancelled, if excessive or for sufficient cause); 11-1-23 (court or judge may
require new security); 11-1-29 (proceedings on death of surety on bonds, etc.); 11-1-31 (death
of parties on bonds having force of judgment); 11-1-33 (death of parties on bonds having force
of judgment -- citation in anticipation of judgment); 11-1-35 (death of parties on bonds having
force of judgment when citation issued and returnable); 11-1-43 through 11-1-49 (seizure of
perishable commodities by legal process); 11-5-151 through 11-5-167 (receivers in chancery);
and 11-17-33 (receivers appointed for nonresident or unknown owners of mineral interests).
However, in any instance in the twelve listed categories in which the controlling statutes
are silent as to a procedure, such as security for costs, form of summons and methods of service
of process and notices, service and filing of pleadings, computation of time, pleadings and
motions, discovery, subpoenas, judgments and the like, the M.R.C.P. govern.
Rule 81(b) recognizes that M.R.C.P. are limited in applicability to ex parte matters and
that such may be disposed of as summarily as any pertinent statutes permit. Rule 81(b) is intended
to preserve, inter alia, the summary manner in which many matters testamentary, of
administration, in minors'/wards' business, and in cases of idiocy, lunacy, and persons of unsound
235
mind are handled. See Miss. Code Ann. § 11-5-49 (1972); Duling v. Duling's Estate, 211 Miss.
465, 52 So.2d 39 (1951).
Rule 81(c) pertains to actions or matters where a statute requires that summons or notice
be made by publication. In those instances, publication as provided by Rule 4 shall satisfy the
requirements of such statute(s).
Rule 81(d) recognizes that there are certain actions and matters whose nature requires
special rules of procedure. Basically these are matters of which the State has an interest in the
outcome or which because of their nature should not subject a defendant/respondent to a default
judgment for failure to answer. Furthermore, they are matters that should not be taken as
confessed even in the absence of the appearance of the defendant/respondent. Most of the
matters enumerated are peculiar to chancery court. Rule 81(d) divides the actions therein detailed
into two categories. This division is based upon the recognition that some matters, because of
either their simplicity or need for speedy resolution, should be triable after a short notice to the
defendant/respondent; while others, because of their complexity, should afford the
defendant/respondent more time for trial preparation.
Rule 81(d)(1) enumerates those actions which are triable 30 days after completion of
service of process in any manner other than by publication, or, 30 days after the first publication
where process is by publication.
Rule 81(d)(2) enumerates those actions which are triable 7 days after completion of
service of process in any manner other than by publication, or, 30 days after the first publication
where process is by publication.
Rule 81(d)(3) provides that the pleading initiating the action should be commenced by
complaint or petition only and shall not be taken as confessed. Initiating Rule 81(d) actions by
"motion" is not intended.
Rule 81(d)(4) expressly provides that no answer is required but allows a
defendant/respondent to file an answer or other pleading if he so desires. The rule does recognize
that on occasion an answer may be necessary to properly present issues or to narrow them;
therefore, the Court may require an answer to be filed. The rule also provides that a party who
fails to provide an answer when required shall not be permitted to present evidence on his behalf.
236
Rule 81(d)(5) recognizes that since no answer is required of a defendant/respondent, then
the summons issued shall inform him of the time and place where he is to appear and defend. If
the matter is not heard on the date originally set for the hearing, the court may sign an order on
that day continuing the matter to a later date. (The rule originally required that the continuance
order be entered on the date originally set for the hearing. This requirement proved burdensome
in those instances in which the court was sitting in a county different from the one in which the
clerk's office was located. Under the present rule, the court may sign the continuance order on
the date of the original hearing, thus giving all present parties notice of the continuance, then
transmit the order to the clerk for entry.) The rule also provides that the Court may adopt a rule
or issue an order authorizing its Clerk to set actions or matters for original hearings and to
continue the same for hearing on a later date. (Local rules should be filed with the Supreme
Court as required by Rule 83).
Rule 81(d)(6) provides that as to any temporary hearing in a pending action for divorce,
separate maintenance, child custody or support, notice in the manner prescribed by Rule 5(b)
shall be sufficient, provided the defendant/respondent has already been summoned to answer.
Rule 81(e) provides that the forms of relief formerly obtainable under the listed writs
continue to be available under the M.R.C.P., but that such actions are not to be considered as
special forms of action. Rather, the relief obtainable heretofore pursuant to those special forms
of action are still available as a civil action, or as a motion, in which the object of the former writ
is now the prayer for relief.
Rule 81(f) modernizes legal terminology and is intended to ensure that conflicts need not
arise over the technical labels applicable to the proceedings detailed in these rules. This method
was selected to eliminate the necessity for rewriting numerous statutes which, while not changed
or modified in sub stance, contain a term or terms inconsistent with those in the M.R.C.P.
[Amended effective January 10, 1986; June 24, 1992; April 13, 2000.]
237
CHAPTER XI. GENERAL PROVISIONS
RULE 82. JURISDICTION AND VENUE
(a) Jurisdiction Unaffected. These rules shall not be construed to extend or limit the
jurisdiction of the courts of Mississippi.
(b) Venue of Actions. Except as provided by this rule, venue of all actions shall be as
provided by statute.
(c) Venue Where Claim or Parties Joined. Where several claims or parties have been
properly joined, the suit may be brought in any county in which any one of the claims could
properly have been brought. Whenever an action has been commenced in a proper county,
additional claims and parties may be joined, pursuant to Rules 13, 14, 22 and 24, as ancillary
thereto, without regard to whether that county would be a proper venue for an independent action
on such claims or against such parties.
(d) Improper Venue. When an action is filed laying venue in the wrong county, the
action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court
in which it might properly have been filed and the case shall proceed as though originally filed
therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the
right to select the court to which the action shall be transferred in the event the action might
properly have been filed in more than one court.
(e) Forum Non-conveniens. With respect to actions filed in an appropriate venue where
venue is not otherwise designated or limited by statute, the court may, for the convenience of the
parties and witnesses or in the interest of justice, transfer any action or any claim in any civil
action to any court in which the action might have been properly filed and the case shall proceed
as though originally filed therein.
[Amended effective February 20, 2004, to add Section 82(e) allowing transfer for forum non­
conveniens for cases filed after the effective date.]
Comment
238
Rule 82(a) reaffirms that nothing in the Mississippi Rules of Civil Procedure shall be
construed as extending or limiting the jurisdiction of any state court.
Subdivisions (b) and (d) pertain to venue. Generally, venue is controlled by statute in
Mississippi, See Miss. Code Ann. §§ 11-11-1 through -59 (1972), and the Mississippi Rules of
Civil Procedure follow the statutes.
The rule adopts the recommendation of the dissenting opinions in Gillard v. Great
Southern Mortgage & Loan Corp., 354 So. 2d 794 (Miss. 1978), and requires that the cost of
transferring an action to a court wherein venue is proper shall be borne by the plaintiff. See
Gillard, at 798-801 (Sugg and Broom, JJ., dissenting opinions). Additionally, Rule 82(d) secures
to the plaintiff the right to select the court to which the action shall be transferred in the event it
is originally brought in the wrong court and there are two or more other courts in which it could
properly be filed.
Until the adoption of Rule 82(e), Mississippi had not recognized the doctrine of forum
non-conveniens as applicable to the selection of forums within the state. Clark v. Luvel Dairy
Products, Inc., 731 So. 2d 1098 (Miss. 1998). Rule 82(e) now recognizes intrastate forum non­
conveniens as to actions filed after its adoption on February 19, 2004. The rule recognizes that
venue is essentially a legislative matter. However, where there are multiple venues which are all
allowable under the statutes, and there are circumstances under which the inconvenience or
disadvantage to one or more parties is substantial and a transfer to another county will not work
a substantial hardship on the plaintiff, the court will now transfer the case or claim to the more
convenient county. The doctrine is one of reason and common sense to be applied to avoid
significant geographical disadvantage.
It has been said that modern advancements in technology and transportation have rendered
the notion of intrastate forum non-conveniens obsolete. This is an overstatement. Although there
is no doubt that many of the logistical difficulties of the past are now of lesser significance, the
costs of travel, housing, the proximity of parties, witnesses, and non-trial staff and records
remain factors for consideration in determining whether the burdens imposed by the plaintiff’s
choice of venue justify transfer.
[Comment amended February 20, 2004.]
239
RULE 83. LOCAL COURT RULES
(a) When Permissible. The conference of circuit, chancery and county court judges may
hereafter make uniform rules and amendments thereto concerning practice in their respective
courts not inconsistent with these rules. Likewise, any court by action of a majority of the judges
thereof may hereafter make local rules and amendments thereto concerning practice in their
respective courts not inconsistent with these rules. In the event there is no majority, the senior
judge shall have an additional vote.
(b) Procedure for Approval. All such local rules and uniform rules adopted before being
effective must be filed in the Supreme Court of Mississippi for approval. Such motions shall also
include a copy of the motion and of the proposed rules in an electronically formatted medium
(such as USB Flash Drive or CD-ROM). Upon receipt of such proposed rules and prior to any
approval of the same, the Supreme Court may submit them to the Supreme Court Advisory
Committee on Rules for advice as to whether any such rules are consistent or in conflict with
these rules or any other rules adopted by the Supreme Court.
(c) Publication. All local and uniform rules hereinafter approved by the Supreme Court
shall be submitted for publication in the Southern Reporter (Mississippi cases).
[Amended effective March 1, 1989; November 29, 1989; February 1, 1990; March 13, 1991;
December 16, 1991; amended March 10, 1994, effective retroactively from and after January 1,
1993; amended October 13, 1995, effective from and after April 14, 1994; amended effective
July 1, 2010.]
Advisory Committee Historical Note
Rule 83 was amended March 10, 1994, effective retroactively from and after January 1,
1993, by deleting the word “hereinafter” in Rule 83(b) following the words, “uniform rules”; by
deleting Rule 83(c) in its entirety; and by renumbering 83(d) as 83(c). 632-635 So.2d XXIIIXXIV (West Miss.Cases 1994).
[Adopted August 21, 1996.]
Comment
240
Rule 83 guarantees the right of trial judges to prescribe local rules of court, not
inconsistent with the Mississippi Rules of Civil Procedure, as may be necessary to implement the
MRCP; see, e. g., MRCP 16 (pre-trial procedures); 40 (trial calendaring); and 78 (motion day).
All local rules must be filed with the Supreme Court of Mississippi. No uniform rules or local
rules of any circuit, chancery or county court shall be effective unless approved by the Supreme
Court.
[Amended March 10, 1994, effective retroactively from and after January 1, 1993; amended
October 13, 1995, effective from and after April 14, 1994.]
241
RULE 84. FORMS
The forms contained in the Appendix of Forms are sufficient under the rules and are
intended to indicate the simplicity and brevity of statement which the rules contemplate.
242
RULE 85. TITLE
These rules shall be known as the Mississippi Rules of Civil Procedure and may be cited
as M.R.C.P.; e. g., M.R.C.P. 85.
243
APPENDIX A. FORMS
[See Rule 84]
INTRODUCTORY STATEMENT
1. The following forms are intended for illustration only. They are limited in number. No
attempt is made to furnish a manual of forms.
2. Except where otherwise indicated, each pleading, motion, and other paper should have
a caption similar to that of the summons, with the designation of the particular paper substituted
for the word "Summons." In the caption of the summons and in the caption of the complaint all
parties must be named but in other pleadings and papers it is sufficient to state the name of the
first party on each side, with an appropriate indication of other parties. See M.R.C.P. 4(b),
7(b)(2), and 10(a).
3. Each pleading, motion, and other paper is to be signed by at least one attorney of record
in his individual name (M.R.C.P. 11). The attorney's name is to be followed by his address as
indicated in Form 2. In forms following Form 2 the signature and address are not indicated.
4. If a party is not represented by an attorney, the signature and address of the party are
required in place of those of the attorney (M.R.C.P. 11).
FORM 1A. SUMMONS
(Process Server)
IN THE
COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff(s)
v. Civil Action, File No.
CD., Defendant(s)
SUMMONS
244
THE STATE OF MISSISSIPPI
TO: (Insert the name and address of the person to be served)
NOTICE TO DEFENDANT(S)
THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT AND
YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS.
You are required to mail or hand deliver a copy of a written response to the Complaint to
, the attorney for the Plaintiff(s), whose post office address is
and whose
street address is
. Your response must be mailed or delivered within (30) days from the
date of delivery of this summons and complaint or a judgment by default will be entered against
you for the money or other things demanded in the complaint.
You must also file the original of your response with the Clerk of this Court within a
reasonable time afterward.
Issued under my hand and the seal of said Court, this
Clerk of
day of
County, Mississippi
(Seal)
245
, 19
.
[This form shall appear on the reverse side of Form 1A. Summons (Process Server)]
PROOF OF SERVICE--SUMMONS
(Process Server)
[Use separate proof of service for each person served]
Name of Person or Entity Served
I, the undersigned process server, served the summons and complaint upon the person or
entity named above in the manner set forth below (process server must check proper space and
provide all additional information that is requested and pertinent to the mode of service used):
FIRST CLASS MAIL AND ACKNOWLEDGEMENT SERVICE. By mailing (by first
class mail, postage prepaid), on the date stated in the attached Notice, copies to the person served,
together with copies of the form of notice and acknowledgement and return envelope, postage
prepaid, addressed to the sender (Attach completed acknowledgement of receipt pursuant to
M.R.C.P. Form 1B).
PERSONAL SERVICE. I personally delivered copies to
on the
, 19 , where I found said person(s) in
County of the State of
day of
.
RESIDENCE SERVICE. After exercising reasonable diligence I was unable to deliver
copies to said person within
county, (state). I served the summons and complaint on
the
day of
, 19 , at the usual place of abode of said person by leaving a true copy
of the summons and complaint with
who is the
(here insert wife,
husband, son, daughter or other person as the case may be), a member of the family of the person
served above the age of sixteen years and willing to receive the summons and complaint, and
thereafter on the
day of
, 19 , I mailed (by first class mail, postage prepaid) copies
to the person served at his or her usual place of abode where the copies were left.
246
CERTIFIED MAIL SERVICE. By mailing to an address outside Mississippi (by first
class mail, postage prepaid, requiring a return receipt) copies to the person served. (Attach
signed return receipt or the return envelope marked “Refused.”)
At the time of service I was at least 18 years of age and not a party to this action.
Fee for service: $
Process server must list below: [Please print or type]
Name
Social Security No.
Address
Telephone No.
State of
County of
)
)
Personally appeared before me the undersigned authority in and
for the state and county aforesaid, the within named
who being first by me duly sworn
states on oath that the matters and facts set forth in the foregoing "Proof of Service-Summons"
are true and correct as therein stated.
Process Server (Signature)
Sworn to and subscribed before me this the
Notary Public
247
day of
19
.
(Seal) My Commission Expires:
[Adopted effective March 1, 1985; amended effective May 2, 1985; amended March 17,
1995.]
FORM 1AA. SUMMONS
(Sheriff)
IN THE
COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff(s)
v.
Civil Action, File No.
C.D., Defendant(s)
SUMMONS
THE STATE OF MISSISSIPPI
TO: (Insert the name and address of the person to be served)
NOTICE TO DEFENDANT(S)
THE COMPLAINT WHICH IS ATTACHED TO THIS SUMMONS IS IMPORTANT AND
YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR RIGHTS.
You are required to mail or hand-deliver a copy of a written response to the Complaint to
, the attorney for the Plaintiff(s), whose post office address is
, and whose
street address is
. Your response must be mailed or delivered within (30) days from
the date of delivery of this summons and complaint or a judgment by default will be entered
against you for the money or other things demanded in the complaint.
248
You must also file the original of your response with the Clerk of this Court within a
reasonable time afterward.
Issued under my hand and the seal of said Court, this
Clerk of
day of
, 19
.
County,
Mississippi
(Seal)
[This form shall appear on the reverse side of Form 1AA: Summons (Sheriff)]
RECEIVED THIS
DAY OF
, 19
.
BY
SHERIFF
SHERIFF'S RETURN
State of Mississippi
County of
)
)
( ) I personally delivered copies of the summons and complaint on the
, 19 , to:
.
249
day of
( ) After exercising reasonable diligence I was unable to deliver copies of the summons
and complaint to
within
County, Mississippi. I served the summons and
complaint on the
day of
, 19 , at the usual place of abode of said
, by leaving
a true copy of the summons and complaint with
, who is the (here insert wife,
husband, son, daughter or other person so as the case may be), a member of the family of the
person served above the age of sixteen years and willing to receive the summons and complaint,
and thereafter on the
day of
, 19 , I mailed (by first class mail, postage prepaid)
copies to the person served at his or her usual place of abode where the copies were left.
( ) I was unable to serve the summons and complaint.
This the
day of
, 19
.
Sheriff of
County,
Mississippi
By:
, Deputy Sheriff
[Note: All summons issued to the sheriff must be returned within
thirty days from the day the summons was received by the sheriff
pursuant to the requirements of Mississippi Rule of Civil Procedure 4(c)(2)].
[Adopted effective March 1, 1985; amended effective February 1, 1990.]
250
FORM 1B. NOTICE AND ACKNOWLEDGMENT
FOR SERVICE BY MAIL
IN THE COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff(s)
(include appropriate designation of other plaintiffs)
v. Civil Action, File No.
C.D., Defendant(s)
(include appropriate designation of other defendants)
NOTICE
TO: (Insert the name and address of the person to be served)
The enclosed summons and complaint are served pursuant to Rule 4(c)(3) of the
Mississippi Rules of Civil Procedure.
You must sign and date the acknowledgment at the bottom of this page. If you are served
on behalf of a corporation, unincorporated association (including a partnership), or other entity,
you must indicate under your signature your relationship to that entity. If you are served on
behalf of another person and you are authorized to receive process, you must indicate under your
signature your authority.
If you do not complete and return the form to the sender within 20 days of the date of
mailing shown below, you (or the party on whose behalf you are being served) may be required
to pay any expenses incurred in serving a summons and complaint.
If you do complete and return this form, you (or the party on whose behalf you are being
served) must respond to the complaint within 30 days of the date of your signature. If you fail
to do so, judgment by default will be taken against you for the relief demanded in the complaint.
251
I declare that this Notice and Acknowledgement of Receipt of Summons and Complaint
was mailed on
(Insert date)
Signature
THIS ACKNOWLEDGMENT OF RECEIPT OF SUMMONS AND COMPLAINT
MUST BE COMPLETED
I acknowledge that I have received a copy of the summons and of the complaint in the
above-captioned matter in the State of
.
Signature
(Relationship to Entity/Authority
to Receive Service of Process)
Date of Signature
State of
County of
)
)
Personally appeared before me, the undersigned authority in and for the State and County
aforesaid, the above named
, who solemnly and truly declared and affirmed before me
that the matters and facts set forth in the foregoing Acknowledgement of Receipt of Summons
and Complaint are true and correct as therein stated.
Affirmed and subscribed before me this
252
day of
, 19
.
Notary Public
My Commission Expires
(Seal)
[Adopted effective March 1, 1985; amended effective May 2, 1985; amended March 17,
1995.]
253
FORM 1C. SUMMONS BY PUBLICATION
IN THE COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff(s)
(It is sufficient here to state the name
of the first plaintiff with an appropriate
designation of other plaintiffs.)
v.
Civil Action, File No.
CD., Defendant(s)
(It is sufficient here to state the name
of the first defendant with an appropriate
designation of other defendants.)
SUMMONS
THE STATE OF MISSISSIPPI
TO: (Insert name of the person(s) to be served)
You have been made a Defendant in the suit filed in this Court by (Insert name of all
Plaintiffs), Plaintiff(s), seeking (Insert a brief description of the relief being sought). Defendants
other than you in this action are (insert names of all defendants other than the person or persons
who are the subject of this summons).
You are required to mail or hand deliver a written response to the Complaint filed against
you in this action to
, Attorney for Plaintiff(s), whose post office address is
and whose street address is
.
254
YOUR RESPONSE MUST BE MAILED OR DELIVERED NOT LATER THAN
THIRTY DAYS AFTER THE
DAY OF
, 19 , WHICH IS THE DATE OF THE
FIRST PUBLICATION OF THIS SUMMONS. IF YOUR RESPONSE IS NOT SO MAILED
OR DELIVERED, A JUDGMENT BY DEFAULT WILL BE ENTERED AGAINST YOU FOR
THE MONEY OR OTHER RELIEF DEMANDED IN THE COMPLAINT.
You must also file the original of your Response with the Clerk of this Court within a
reasonable time afterward.
Issued under my hand and the seal of said Court, this
Clerk of
day of
County,
Mississippi
(Seal)
[Adopted effective March 1, 1985; amended effective May 2, 1985.]
255
, 19
.
FORM 1D. RULE 81 SUMMONS
(Sheriff or Process Server)
IN THE
COURT OF COUNTY, MISSISSIPPI
A. B., Plaintiff(s)
v.
Civil Action, File No.
C. D., Defendant(s)
SUMMONS
THE STATE OF MISSISSIPPI
TO: (Insert the name
NOTICE TO DEFENDANT(S)
THE COMPLAINT OR PETITION WHICH IS ATTACHED TO THIS SUMMONS
IS IMPORTANT AND YOU MUST TAKE IMMEDIATE ACTION TO PROTECT YOUR
RIGHTS.
You are summoned to appear and defend against said complaint or petition at ___O’clock
____.M. on the
day of
19 , in the courtroom of the
County
Courthouse at
, Mississippi, and in case of your failure to appear and defend a
judgment will be entered against you for the money or other things demanded in the complaint
or petition.
You are not required to file an answer or other pleading but you may do so if you desire.
Issued under my hand and the seal of said Court, this
(Seal)
Clerk of
County,
Mississippi
256
day of
, 19
.
(Note: All summons issued to the sheriff must be returned prior to the time the defendant is
summoned to appear.)
[Adopted effective January 10, 1986.]
257
FORM 1DD. RULE 81 SUMMONS
(Summons by Publication)
IN THE COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff(s)
(It is sufficient here to state the name
of the first plaintiff with an appropriate
designation of other plaintiffs.)
v.
Civil Action, File No.
C.D., Defendant(s)
(It is sufficient here to state the name
of the first defendant with an appropriate
designation of other defendants.)
SUMMONS
THE STATE OF MISSISSIPPI
TO: (Insert name of the person(s) to be served.)
You have been made a Defendant in the suit filed in this Court by
, (Insert name
of all Plaintiffs) Plaintiff(s) seeking
(Insert a brief description of the relief
being sought). Defendants other than you in this action are
(Insert names of all
defendants other than the person or persons who are the subject of this summons)
You are summoned to appear and defend against the complaint or petition filed against
you in this action at
o'clock _. M. on the
day of
, 19 , in the courtroom of the
County Courthouse at
, Mississippi, and in case of your failure to appear and
258
defend, a judgment will be entered against you for the money or other things demanded in the
complaint or petition.
You are not required to file an answer or other pleading but you may do so if you desire.
Issued under my hand and the seal of said Court, this
(Seal)
Clerk of County,
Mississippi
259
day of
, 19
.
FORM 1E. WAIVER OF PROCESS
IN THE
COURT OF COUNTY, MISSISSIPPI
A.B. Plaintiff
v.
Civil Action, File No.
C.D. Defendant
WAIVER OF PROCESS
The undersigned
(name ), whose post office address is
and whose street
address is
, does hereby waive the service of summons and (designate any pleading on
which service is being waived ) upon myself in this cause.
In executing this document I certify that I am not an unmarried minor and am not mentally
incompetent.
(In addition the person executing the waiver may add any or all of the following to the
document:)
[Furthermore, by the filing of this document, I enter my appearance in this cause]
just as if I had been served more than 30 days prior to this date]
[and agree that this action may be heard and disposed of without further notice to me]
[and join in this action and in the prayer for relief]
This the
day of
, 20
.
Name
260
STATE OF
COUNTY OF
)
)
Personally appeared before me, the undersigned authority for the jurisdiction aforesaid,
the within named
who acknowledged that he signed and delivered the above and
foregoing instrument on the day and year therein mentioned.
Given under my hand this the
day of
, 20 .
Notary Public
My Commission Expires:
[In lieu of the above acknowledgment the following oath may be used:]
STATE OF
COUNTY OF
)
)
Personally appeared before me the undersigned authority in and for the jurisdiction
aforesaid the within named
who, being first by me duly sworn, states on oath that the
matters and facts set forth in the foregoing instrument are true and correct as therein stated.
Name
Sworn to and subscribed before me this the
261
day of
, 20 .
Notary Public
My Commission Expires:
[Adopted effective February 1, 1990; amended effective July 1, 2009 to delete convicted
felony exception.]
FORM 2. COMPLAINT ON A PROMISSORY NOTE
1. Defendant on or about
, 19 , executed and delivered to Plaintiff a promissory
note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is
hereto annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on
, 19 , the sum of
dollars with interest thereon at the rate of
percent per annum] [and
agreed to pay a reasonable attorney's fee for collection].
2. Defendant owes to plaintiff [the amount of said note] [$
and interest.
that is due on said note]
Wherefore plaintiff demands judgment against defendant for the sum of
interest, attorney's fee, and costs.
Attorney for Plaintiff
262
dollars,
Address
FORM 3. COMPLAINT ON COVENANT OR AGREEMENT
1. On or about the
day of
, 19 , plaintiff and defendant entered into agreement
by which defendant promised [here set out agreement in general terms].
2. Defendant breached the agreement by [here set out breaches in general terms].
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 4. COMPLAINT FOR SPECIFIC PERFORMANCE
1. This is an action for specific performance of a contract to convey real property in
County, Mississippi.
2. On
, 19 , plaintiff and defendant entered into a written contract, a copy being
attached and marked Exhibit A.
3. Plaintiff timely tendered the purchase price to defendant and requested a conveyance
of the real property described in the contract but defendant refused to accept the tender or to make
the conveyance.
4. Plaintiff offers to pay the purchase price.
Wherefore plaintiff demands judgment that defendant be required to perform specifically
the contract and for damages.
263
FORM 5. COMPLAINT ON AN OPEN ACCOUNT
1. Defendant owes plaintiff
dollars due by open account.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 6. COMPLAINT ON ACCOUNT STATED
1. Defendant owes plaintiff
and defendant on the
day of
dollars on an account stated between the plaintiff
, 19 .
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 7. COMPLAINT FOR GOODS SOLD AND DELIVERED
1. Defendant owes plaintiff
defendant between the
day of
dollars for goods sold and delivered by plaintiff to
and the
day of
, 19 .
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 8. COMPLAINT FOR WORK AND LABOR DONE
1. Defendant owes plaintiff
dollars for work and labor done for the defendant by
the plaintiff on the
day of
, at defendant's request.
264
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 9. COMPLAINT FOR MONEY LENT
1. Defendant owes plaintiff
about the
day of
, 19 .
dollars for money lent by plaintiff to defendant on or
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 10. COMPLAINT FOR MONEY PAID BY MISTAKE
1. Defendant owes plaintiff
mistake on or about the
day of
dollars for money paid by plaintiff to defendant by
. 19 , under the following circumstances:
[here briefly state the circumstances].
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 11. COMPLAINT FOR MONEY HAD AND RECEIVED
1. Defendant owes plaintiff
dollars for money had and received from one
on or about the
day of
, 19 , to be paid by defendant to plaintiff.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
265
dollars,
FORM 12. COMPLAINT FOR MONEY PAID BY
PLAINTIFF FOR DEFENDANT
1. Defendant owes plaintiff
defendant on or about the
day of
dollars because of money paid by the plaintiff for the
, 19 , at defendant's request.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 13. COMPLAINT ON A POLICY OF LIFE INSURANCE
1. On or about the
day of
, 19 , defendant issued a policy whereby the defendant
insured the life of
who died on the
day of
, 19 , of which the defendant has
had notice.
2. As a result, the amount of the policy is now due and the plaintiff is the beneficiary of
the proceeds of the policy.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 14. COMPLAINT ON A POLICY OF FIRE INSURANCE
1. On or about the
day of
. 19 , defendant insured plaintiffs dwelling house (or
other property, as the case may be) against loss or injury by fire and other perils in a policy of
insurance, for the term of
years.
2. The house (or other property) was wholly destroyed (or was damaged) by fire on the
day of
, 19 , of which the defendant has had notice.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
266
dollars,
FORM 15. COMPLAINT FOR NEGLIGENCE
OR WANTONNESS
1. On or about the
day of
. 19 , upon a public highway [state the name of the
street] in [City];
County, Mississippi, the defendant negligently [or wantonly] caused or
allowed a motor vehicle to collide with a motor vehicle occupied by the plaintiff.
2. As a proximate consequence of the defendant's said negligence [or wantonness], the
plaintiff was caused to suffer the following injuries and damages: [enumerate injuries and
damages].
Wherefore plaintiff demands judgment against defendant in the sum of
dollars and
costs.
FORM 16. COMPLAINT FOR ASSAULT AND BATTERY
1. On or about the
battery on the plaintiff.
day of
, 19 , the defendant committed an assault and
Wherefore plaintiff demands judgment against defendant in the sum of
and costs.
dollars
FORM 17. COMPLAINT FOR FALSE IMPRISONMENT
1. On or about the
day of
, 19 , the defendant unlawfully arrested and
imprisoned the plaintiff (or caused the plaintiff to be arrested and imprisoned as the case may be)
on a charge of larceny (or as the case may be) for
days.
Wherefore plaintiff demands judgment against defendant in the sum of
costs.
267
dollars and
FORM 18. COMPLAINT FOR MALICIOUS PROSECUTION
1. On or about the
day of
, 19 , defendant, maliciously, and without
probable cause therefor, caused the plaintiff to be arrested under a warrant issued by
,a
justice court judge, on a charge of (as the case may be).
2. Before the commencement of this action, this charge was judicially investigated, the
prosecution ended, and the plaintiff discharged.
Wherefore plaintiff demands judgment against defendant in the sum of
dollars and
costs.
FORM 19. COMPLAINT FOR FRAUD
1. On or about the
day of
, 19 , defendant and plaintiff were negotiating
concerning the purchase by plaintiff from defendant of the following described property:
[describe property].
2. At that time defendant represented to plaintiff that [here set out representations with
particularity].
3. The representations made by defendant were false [and defendant knew that they were
false] [and defendant, without knowledge of the true facts, recklessly misrepresented them] [and
were made with the intention that plaintiff should rely upon them].
4. Plaintiff believed the representations and in reliance upon them purchased the property.
Wherefore plaintiff demands judgment against defendant in the sum of
and costs.
268
dollars
FORM 20. COMPLAINT ON A WARRANTY
1. On or about the
day of
, 19 , defendant sold a (as the case may be) to the
plaintiff on which the defendant gave warranty as shown by Exhibit A which is attached hereto
[or insert the substance of the warranty].
2. In fact [here state the breach in general terms].
FORM 21. COMPLAINT FOR CONVERSION
1. On or about the
day of
, 19 , defendant converted to his own use [here
describe in general terms the property allegedly converted] of the
Company of the
value of
dollars, the property of plaintiff.
Wherefore plaintiff demands judgment against defendant in the sum of
interest and costs.
dollars,
FORM 22. MOTION TO DISMISS PURSUANT TO RULE 12 (b)
The defendant moves that the Court proceed as follows:
1. To dismiss the complaint for lack of subject matter jurisdiction in that it is [an action
seeking the reformation of a written instrument (or as the case may be)] and plaintiff has a full
and adequate remedy [at law] [in equity].
2. To dismiss the complaint for lack of jurisdiction over the person in that [the defendant
is a corporation organized under the laws of the State of
and was not and is not
subject to service of process within the State of Mississippi (or as the case may be)].
269
3. To dismiss the action on the ground of improper venue in that defendant is a domestic
corporation domiciled in
County, which is not the county in which [this action is brought]
[the cause of action occurred or accrued].
4. To dismiss the complaint because of insufficiency of process in that the summons
served on the defendant [was not signed by the clerk] [does not contain the names and addresses
of the parties] [is directed to a person other than the defendant named in the complaint [did not
have attached a copy of the complaint] (or as the case may be).
5. To dismiss the action because of insufficiency of service of process in that the
summons served on defendant [was sent by ordinary mail rather than by certified mail] [was
served by a process server who is not sheriff of the county in which it was served nor a person
eighteen years or older] [was served on a member of defendant's family who is less than sixteen
years of age] [was served on
, who is neither an officer nor the registered agent of the
defendant corporation] (or as the case may be).
6. To dismiss the complaint for failure to state a claim upon which relief can be granted.
7. To dismiss the complaint for failure to join
, a [person] [corporation] necessary
for just adjudication because [he] [it] is this defendant's [co-tenant, lessee, royalty holder,
assignee (or as the case may be)] whose rights are involved in this action.
NOTICE OF MOTION
TO:
Attorney for Plaintiff
Address
270
Please take notice that the undersigned will bring the above motion on for hearing before
this court at the
County Courthouse in the City of
, Mississippi, on the
day
of
, 19 , at
o'clock a. m./p. m. that day or as soon thereafter as counsel can be heard.
Attorney for Defendant
CERTIFICATE OF SERVICE
I hereby certify that I have this date served a copy of this Motion to Dismiss and Notice
of same on J.K, Counsel of Record for the Plaintiff, A.B., by placing a copy of same in the United
States mail, postage prepaid, addressed to his regular business mailing address.
This the
day of
, 19 .
Attorney for Defendant
Address
FORM 23. ANSWER PRESENTING DEFENSES
UNDER RULE 12 (b)
First Defense
271
[Improper Venue]
The action is brought in the wrong county because the defendant is a domestic corporation
domiciled in
County, which is not the county in which this action is brought or in which
the cause of action occurred or accrued.
Second Defense
[Admission and Denial]
Defendant admits the allegations contained in paragraphs 1 and 4 of the complaint; alleges
that he is without knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 2 of the complaint; and denies each and every other allegation
contained in the complaint.
Third Defense
[Statute of Limitations]
The right of action set forth in the complaint did not accrue within
before the commencement of this action.
years next
Counter-claim
Here set forth any claim as a counter-claim in the manner in which a claim is pleaded in
a complaint.
Cross-Claim against Defendant M. N.
Here set forth the claim constituting a cross-claim against defendant M. N. in the manner
in which a claim is pleaded in a complaint.
272
FORM 24. MOTION TO BRING IN
THIRD-PARTY DEFENDANT
Defendant moves for leave, as third-party plaintiff, to cause to be served upon E. F. a
summons and third-party complaint, copies of which are attached as Exhibit A.
FORM 25. THIRD-PARTY COMPLAINT
1. Plaintiff, A. B., has filed against defendant, C. D., a complaint, a copy of which is
attached as Exhibit A.
2. If the defendant, C. D., is liable to the plaintiff on the occasion complained of in the
complaint, it is liable because [here state the grounds upon which C. D., is entitled to recover
from E. F., all or part of what A. B. may recover from C. D. The statement should be framed as
in an original complaint.]
Wherefore, C. D. demands judgment against third-party defendant E. F. for all sums that
may be adjudged against defendant C. D. in favor of plaintiff, A. B.
FORM 26. MOTION TO INTERVENE AS A
DEFENDANT UNDER RULE 24
[Based upon the Complaint, Form 15]
IN THE CIRCUIT COURT OF
A.B., Plaintiff
v.
Civil Action, File No.
C.D., Defendant
E.F., Applicant for Intervention
273
COUNTY, MISSISSIPPI
MOTION TO INTERVENE AS A DEFENDANT
E. F. moves to intervene as a defendant in this action to assert the defenses set forth in his
proposed answer, a copy of which is attached hereto, on the ground that he is the owner of the
automobile alleged in the Complaint to have collided with the vehicle occupied by the plaintiff
and as such as a defense to plaintiffs claim presenting both questions of law and of fact which
are common to the main action.
Attorney for E. F.
Applicant for Intervention
Address
NOTICE OF MOTION
[Contents the same as in Form 22]
IN THE CIRCUIT COURT OF
COUNTY, MISSISSIPPI
A.B., Plaintiff
v.
Civil Action, File No.
C.D., Defendant
E.F., Intervener
INTERVENER'S ANSWER
274
First Defense
Intervener denies the allegations stated in paragraphs 1 and 2 of the Complaint in so far
as they assert negligence on the part of the defendant.
Second Defense
Intervener asserts that at the time of the collision stated in the Complaint the plaintiff was
operating his vehicle under the influence of alcohol and in a wantonly negligent manner.
Third Defense
Intervener asserts that at the time of the collision stated in the Complaint defendant was
operating intervener's vehicle without intervener's authority, permission, or license.
FORM 27. MOTION TO DROP DEFENDANT OR FOR
SEVERANCE OF CLAIMS
Defendant,
, moves the court for an order dropping him as a party defendant
herein or in the alternative for an order severing the claim asserted against him by plaintiff herein
from the claim asserted against defendant,
, on the grounds that:
1. The alleged claim asserted against defendant,
, does not arise from the same
transaction, occurrence, or series of transactions or occurrences, as the claim asserted against
defendant,
; nor do the two alleged claims involve questions of law or fact common to
both defendants.
2. The moving defendant will be put to undue expense and embarrassment if he is
required to proceed with his defense without a severance of the issues.
275
3. The trial of action will be embarrassing and the jury confused by a joint trial of the
claims asserted against the two defendants herein, all to the prejudice of the moving defendant.
FORM 28. MOTION BY DEFENDANT FOR SEVERANCE OF
CLAIMS OF SEVERAL PLAINTIFFS
Defendant moves the court for an order severing the claims asserted by the respective
plaintiffs herein against the defendant, on the grounds that:
1. The alleged claim or claims of each plaintiff differ in material and essential elements
and respects from the alleged claim or claims of each of the other plaintiffs.
2. The alleged claims of the plaintiffs do not arise out of the same transaction, occurrence,
or series of transactions or occurrences, and do not involve questions of law or fact common to
all the plaintiffs.
3. The joining in one action and one complaint of the alleged claims of the plaintiffs is
prejudicial to the defendant and injures his substantial rights and will embarrass and delay the
trial.
FORM 29. MOTION BY PLAINTIFF TO ADD DEFENDANT
Plaintiff moves the court for an order making
a party defendant herein and
directing the issuance and service of process on him, and for grounds therefor shows:
1. This is an action for [state briefly the nature of the claim for relief].
2. [State facts showing that the proposed additional defendant is an indispensable,
necessary or proper party defendant].
276
3. The said
is a citizen and resident of
, is subject to the jurisdiction of
this court as to both service of process and venue and can be made a party defendant herein
without depriving the court of jurisdiction.
FORM 30. MOTION BY DEFENDANT TO BRING IN
ADDITIONAL DEFENDANT
Defendant moves the court for an order making
a party defendant herein; directing
that process be issued and served upon defendant
; and requiring plaintiff to serve and file
an amended complaint, and for grounds therefor shows:
1. This is an action for [state briefly the nature of the claim for relief].
2. [State facts showing that a person needed for just adjudication has not been joined as
a defendant].
3. The said
is a citizen and a resident of
, is subject to the jurisdiction of
this court as to both service of process and venue, and can be made a party defendant herein
without depriving the court of jurisdiction.
FORM 31. MOTION BY DEFENDANT TO ADD
ADDITIONAL PLAINTIFF
Defendant moves the court for an order directing that
be made a party plaintiff
herein, or in the alternative, if
refuses to join as a plaintiff, he be made a defendant as
provided by Rule 19(a), and for grounds therefor shows:
1. This is an action for [state briefly the nature of the claim for relief].
2. [State facts showing that a person needed for just adjudication has not been joined as
a plaintiff].
277
3. The said
is a citizen and resident of
; he is subject to the jurisdiction of
this court as to service of process and venue; and he can be made a party plaintiff (or, as the case
may be, a party defendant) herein without depriving the court of jurisdiction.
FORM 32. ANSWER TO COMPLAINT SET FORTH IN FORM 11
WITH COUNTER-CLAIM FOR INTERPLEADER
Defense
Defendant admits the allegations stated in paragraph 1 of the complaint and denies the
allegations stated in paragraph 2 to the extent set forth in the counter-claim herein.
Counter-claim for Interpleader
1. Defendant received the sum of
dollars as a deposit from E. F.
2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment
of same which he claims to have received from E. F.
3. E. F. has notified the defendant that he claims such deposit, that the purported
assignment is not valid, and that he holds the defendant responsible for the deposit.
Wherefore defendant demands:
(1) That the court order E. F. to be made a party defendant to respond to the complaint and
to this counter-claim.
(2) That the court order the plaintiff or E. F. to interplead their respective claims.
(3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum of money.
278
(4) That the court discharge defendant from all liability in the action except to the person
it shall adjudge entitled to the sum of money.
(5) That the court award to the defendant its costs and attorney's fees.
FORM 33. PLAINTIFF'S MOTION FOR SUBSTITUTION -
DECEASED PARTY DEFENDANT
Plaintiff shows to the court that
, the above-named defendant, died intestate (or
testate) on or about the
day of
, 19 ; that letters of administration upon the estate
of the said were issued on the
day of
, 19 , to
as administrator by the
Court of the State of Mississippi (or, that
was duly appointed executor of the last
will of
by the
Court of the State of Mississippi and qualified as such
executor on the day of
, 19 ): and this is an action for [state briefly nature of action]
and the claim of plaintiff was not extinguished by the death of defendant.
Wherefore plaintiff moves the court for an order substituting
, administrator (or,
as the case may be, executor) of the estate of
, deceased, as party defendant herein.
FORM 34. PRE-TRIAL ORDER
1. Counsel.
Appearing for the plaintiff:
Appearing for the defendant:
2. Nature of the case. [Count 1 of] the complaint alleges a cause of action based upon
[negligence, breach of warranty, breach of oral contract, etc.].
3. Positions of the parties.
279
a. Plaintiff contends: [concise statement of factual and legal contentions].
b. Defendant contends: [concise statement of factual and legal contentions].
4. Stipulations and admissions.
5. Discovery. Discovery proceeding6 have been completed except as follows: [specify
additional discovery proceedings required].
6. Additional Orders: [as required by the particular case].
Ordered that the above allowances and agreements are binding on all parties in the
above-styled cause unless this order be hereafter modified by the Court for good cause and to
prevent manifest injustice.
Done this
day of
, 19 .
Judge
FORM 35. MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT, OR IN THE ALTERNATIVE, FOR NEW TRIAL
Defendant [Plaintiff] moves the Court to set aside the verdict and judgment entered in the
above-styled action on
, 19 , and to enter judgment in favor of the Defendant
[Plaintiff] in accordance with the motion for directed verdict, or, in the alternative, Defendant
[Plaintiff] moves the court to set aside the verdict and grant Defendant [Plaintiff] a new trial on
the following grounds, to-wit:
1.
280
2. [Herein state grounds]
3.
FORM 36. APPLICATION TO CLERK FOR ENTRY OF
DEFAULT AND SUPPORTING AFFIDAVIT
The clerk is requested to enter default against the defendant in the above entitled action
for failure to plead, answer or otherwise defend as set out in the affidavit hereto annexed.
Attorney for Plaintiff
State of Mississippi)
County of
)
, being duly sworn, deposed and says:
1. That he is attorney of record of the plaintiff, and has personal knowledge of the facts
set forth in this affidavit.
2. That the defendant was duly served with a copy of the summons, together with a copy
of plaintiffs complaint, on the
day of
, 19 .
3. That more than 30 days have elapsed since the date on which the said defendant was
served with summons and a copy of the complaint.
4. That the defendant has failed to answer or otherwise defend as to plaintiffs complaint,
or serve a copy of any answer or other defense which he might have upon the undersigned
attorney of record for the plaintiff.
281
5. That this affidavit is executed by affiant herein in accordance with Rule 55(a) of the
Mississippi Rules of Civil Procedure, for the purpose of enabling the plaintiff to obtain an entry
of default against the defendant, for his failure to answer or otherwise defend as to the plaintiffs
complaint.
Attorney for Plaintiff
Sworn to and subscribed before me this the
day of
, 19 .
Notary Public
FORM 37. DOCKET OF ENTRY OF DEFAULT
Default entered against defendant
this
day of
, 19 .
FORM 38. DEFAULT JUDGMENT ENTERED BY COURT
This action came on for hearing on the motion of the plaintiff for a default judgment
pursuant to Rule 55(b)(2) of the Mississippi Rules of Civil Procedure, and the defendant having
been duly served with the summons and complaint and not being an infant or an unrepresented
incompetent person and having failed to plead or otherwise defend, and his default having been
duly entered and the defendant having taken no proceedings since such default was entered,
It is Ordered and Adjudged that [here set forth relief granted to plaintiff].
This
day of
, 19 .
282
Judge
APPENDIX B. STATUTES AFFECTED
[DELETED IN ITS ENTIRETY.]
[Effective June 24, 1992.]
APPENDIX C. TIME TABLE FOR PROCEEDINGS UNDER THE
MISSISSIPPI RULES OF CIVIL PROCEDURE
[DELETED IN ITS ENTIRETY.]
[Effective June 24, 1992.]
283