Cross References —

Relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §§99-39-1 et seq.

Applicability of the rules of evidence, see Miss. R. Evid. 101.

RESEARCH REFERENCES

ALR.

Power of court sitting as trier of fact to dismiss at close of plaintiff’s evidence, notwithstanding plaintiff has made out prima facie case. 55 A.L.R.3d 272.

Necessity, in criminal prosecution, of independent evidence of principal act to allow admission, under res gestae or excited utterance exception to hearsay rule, of statement made at time of, or subsequent to, principal act. 38 A.L.R.4th 1237.

Habit or routine practice evidence under Uniform Evidence Rule 406. 64 A.L.R.4th 567.

JUDICIAL DECISIONS

1. Waiver.

If suit is filed on either medical malpractice grounds or other grounds placing plaintiff’s condition in issue, scope of waiver of medical privilege is limited to medical information which is relevant to injury placed in issue by plaintiff. Scott by & Through Scott v. Flynt, 704 So. 2d 998, 1996 Miss. LEXIS 147 (Miss. 1996).

Editor’s Notes —

Former §13-1-3 provided that a person was competent to give evidence in any suit even if he or she had an interest in the result thereof.

RESEARCH REFERENCES

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss L J 547, Winter, 1997.

Cross References —

Husband-wife privilege, see §43-19-43.

Testimony by spouses in proceedings for protection from domestic abuse, see §93-21-19.

Husband-wife privilege, see Miss. R. Evid. 504.

General rule of competency, see Miss. R. Evid. 601.

RESEARCH REFERENCES

ALR.

Right of one against whom testimony is offered to invoke privilege of communication between others. 2 A.L.R.2d 645.

Conversations between husband and wife relating to property or business as within rule excluding private communications between them. 4 A.L.R.2d 835.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse. 10 A.L.R.2d 1389.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution. 11 A.L.R.2d 646.

Calling or offering accused’s spouse as witness for prosecution as prejudicial. 76 A.L.R.2d 920.

Spouse as competent witness for or against co-offender with other spouse. 90 A.L.R.2d 648.

Criminal liability for contributing to delinquency of minor as affected by the fact that minor has not become a delinquent. 18 A.L.R.3d 824.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 36 A.L.R.3d 820.

Competency of one spouse to testify against other in prosecution for offense against child of both or either. 93 A.L.R.3d 1018.

Effect, on competency to testify against spouse or on martial communication privilege, of separation or other martial instability short of absolute divorce. 98 A.L.R.3d 1285.

Spouse’s betrayal or connivance as extending marital communications privilege to testimony of third person. 3 A.L.R.4th 1104.

Communication between unmarried couple living together as privileged. 4 A.L.R.4th 422.

Testimonial privilege for confidential communications between relatives other than husband and wife – state cases. 6 A.L.R.4th 544.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony. 13 A.L.R.4th 1305.

Propriety and prejudicial effect of prosecutor’s argument commenting on failure of defendant’s spouse to testify. 26 A.L.R.4th 9.

Presence of child at communication between husband and wife as destroying confidentiality of otherwise privileged communication between them. 39 A.L.R.4th 480.

Insured-insurer communications as privileged. 55 A.L.R.4th 336.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications. 62 A.L.R.4th 1134.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution – modern state cases. 74 A.L.R.4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 74 A.L.R.4th 277.

Adverse presumption or inference based on party’s failure to produce or examine spouse – modern cases. 79 A.L.R.4th 694.

Marital privilege under Rule 501 of Federal Rules of Evidence. 46 A.L.R. Fed. 735.

Situations in which federal courts are governed by state law of privilege under Rule 501 of the Federal Rules of Evidence.48 A.L.R. Fed. 259.

Applicability, in civil action, of provisions of Omnibus Crime Control and Safe Streets Act of 1986, prohibiting interception of communications (18 USCS § 2511(1)), to interceptions by spouse, or spouse’s agent, of conversations of other spouse. 139 A.L.R. Fed. 517.

Am. Jur.

81 Am. Jur. 2d (Rev), Witnesses §§ 230, 248 et seq.

CJS.

98 C.J.S., Witnesses §§ 227 et seq.

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss L J 547, Winter, 1997.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 13:5, 17:1-17:3.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Competency of spouse as witness in general.

4. Witness for other spouse.

5. Witness against other spouse.

6. Controversies between spouses.

7. —Criminal prosecutions.

8. Communications between spouses.

9. Divorce, effect of.

10. Consent or waiver.

11. Failure of spouse to testify.

12. Evidence.

1. Validity.

Statutory provision that, where either husband or wife is party litigant, the other shall not be competent as a witness without consent of both, held not to deny due process by depriving opposing party of material evidence, since statute prescribes mere rule of evidence and does not affect substantial rights of parties. Whitney Nat'l Bank v. Stirling, 177 Miss. 325, 170 So. 692, 1936 Miss. LEXIS 255 (Miss. 1936).

2. Construction and application generally.

In a divorce case, the chancellor did not err in allowing the husband’s previous wife to testify about the reason for her divorce, as it was relevant to the husband’s character and to child custody. She did not testify to any confidential communications under Miss. Code Ann. §13-1-5 or Miss. R. Evid. 504. McNeese v. McNeese, 119 So.3d 264, 2013 Miss. LEXIS 172 (Miss. 2013).

Law enforcement officers’ use of defendant’s wife as confidential informant did not violate statute concerning spousal competency or evidence rule concerning spousal privilege. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Since the privilege protected by §13-1-5 extends only to communications which are intended to be confidential, the presence of another person, even a family member, is deemed to mean that the communication was not intended to be confidential. Fanning v. State, 497 So. 2d 70, 1986 Miss. LEXIS 2645 (Miss. 1986).

This provision does not operate to exclude testimony of a third person as to declarations of the wife of the accused which are part of the res gestae. Eubanks v. State, 242 Miss. 372, 135 So. 2d 183, 1961 Miss. LEXIS 571 (Miss. 1961).

Statutory provisions that all persons, whether interested parties to suit, or not, make competent witnesses (Code 1942, § 1688), that either party to suit shall have right to force adversary to testify (Code 1942, § 1710), that examination of interested witnesses may be had in open court (Code 1942, § 1711), and the provisions of this section [Code 1942, § 1689], must be construed together, and so as to except this section from operation of other statutes. Whitney Nat'l Bank v. Stirling, 177 Miss. 325, 170 So. 692, 1936 Miss. LEXIS 255 (Miss. 1936).

3. Competency of spouse as witness in general.

The prosecution cannot call the defendant’s wife to the stand to testify, thereby forcing the defendant to assert, before the jury, his right to have her testimony excluded. Simpson v. State, 497 So. 2d 424, 1986 Miss. LEXIS 2724 (Miss. 1986).

Where judgment creditor obtained judgment plus interest and attorney fees against husband, and subsequently served writ of garnishment upon wife, wife could properly assert marital privilege under §13-1-5. Fidelity Nat'l Bank v. Center Management, Inc., 585 F. Supp. 1406, 1984 U.S. Dist. LEXIS 15921 (S.D. Miss. 1984).

In a prosecution for murder or manslaughter, the deceased is in no sense a party to the suit, and the wife of deceased was competent to testify as to what occurred at the scene of the killing, and as to statements made by others, or statements made in the presence of others, bearing on the material issues in controversy. McBride v. State, 188 Miss. 620, 196 So. 633, 1940 Miss. LEXIS 83 (Miss. 1940).

In suit against husband and wife and their grantee to set aside, as fraudulent, conveyance of homestead owned by wife and to enforce judgment against husband and wife, neither husband nor wife could be called as an adverse witness, though homestead was owned by wife, since husband had interest in homestead, and any material evidence that either would give would affect interest of both. Whitney Nat'l Bank v. Stirling, 177 Miss. 325, 170 So. 692, 1936 Miss. LEXIS 255 (Miss. 1936).

4. Witness for other spouse.

Husband of beneficiary under will was competent attesting witness to will. Gore v. Dace, 157 Miss. 221, 127 So. 901, 1930 Miss. LEXIS 283 (Miss. 1930).

The widow is a competent witness on behalf of the estate of her deceased husband to prove a conversation between her husband in his lifetime and the opposing party. Stuhlmuller v. Ewing, 39 Miss. 447, 1860 Miss. LEXIS 74 (Miss. 1860).

5. Witness against other spouse.

Because defense counsel failed to lodge an objection to the husband’s testimony against defendant at trial, defendant’s claim was barred from review. Sandlin v. State, 156 So.3d 813, 2013 Miss. LEXIS 538 (Miss. 2013).

In defendant’s trial for exploitation of children, defendant’s wife was not incompetent to testify against defendant because the privilege under Miss. R. Evid. 601(a)(2) and Miss. R. Evid. 504(d) did not apply, as defendant was being prosecuted for a criminal act against a child. Hood v. State, 17 So.3d 548, 2009 Miss. LEXIS 379 (Miss. 2009).

Defendant’s marriage to his first wife ended in May 2002 when, upon the first wife’s petition, the Florida court declared that defendant died on August 13, 1998, in the Gulf of Mexico; as such, she was his ex-wife at the time of the trial and, therefore, competent to testify against him, and the information to which she testified was not privileged communication, so Miss. Code Ann. §13-1-5 did not apply to exclude her testimony. Butt v. State, 986 So. 2d 981, 2007 Miss. App. LEXIS 783 (Miss. Ct. App. 2007).

Although testimony by third party as to substance of party’s conversation with criminal defendant’s spouse is prohibited, testimony as to fact that conversation with spouse took place is not. Davis v. State, 472 So. 2d 428, 1985 Miss. LEXIS 2119 (Miss. 1985).

In a prosecution for child abuse, the trial court properly allowed defendant’s wife to testify against him, and to be cross-examined by the district attorney as an adverse witness, since §13-1-5 provides no spousal immunity in a prosecution for child abuse. Shelton v. State, 445 So. 2d 844, 1984 Miss. LEXIS 1625 (Miss. 1984).

In a prosecution for aggravated assault by a wife against her husband, there was no error in compelling the husband to testify against his wife, even though this was against his wishes, where the husband was introduced as a witness by the State of Mississippi, not by his spouse, and the charge did not concern a criminal act against a child, notwithstanding §13-1-5. Stubbs v. State, 441 So. 2d 1386, 1983 Miss. LEXIS 3072 (Miss. 1983).

In a prosecution for manslaughter by culpable negligence the court improperly admitted statements made by defendant’s wife to an officer outside the defendant’s presence, where such testimony was hearsay and violated the confidential communication privilege between husband and wife. Bayse v. State, 420 So. 2d 1050, 1982 Miss. LEXIS 2176 (Miss. 1982).

In a prosecution for murder, it was error to permit the state to cross-examine the defendant about the presence of his wife at the scene of the crime where the defense had successfully objected to the testimony of the wife when she had been called to the stand by the state. Owens v. State, 405 So. 2d 692, 1981 Miss. LEXIS 2279 (Miss. 1981).

In the prosecution of the defendant for the murder of his wife’s father, the trial court properly permitted the wife to testify against the defendant where the nearly simultaneous assault upon the wife by her husband and his threat to kill her “next” on the occasion that he shot and killed her father was such a controversy between them as to make her a competent witness when she was willing to testify. Maiben v. State, 405 So. 2d 87, 1981 Miss. LEXIS 2246 (Miss. 1981).

In a manslaughter prosecution based upon a death arising from child abuse, the child’s mother could not be compelled to testify against her husband. Tapp v. State, 347 So. 2d 974, 1977 Miss. LEXIS 2062 (Miss. 1977).

A wife is a competent witness in the prosecution of her husband for crimes involving personal violence against their child. Merritt v. State, 339 So. 2d 1366, 1976 Miss. LEXIS 1696 (Miss. 1976).

Peace officer’s testimony as to statements against accused husband’s interest made in his presence by accused’s wife was inadmissible, both as hearsay and as a violation of this section [Code 1942, § 1689]. Caldwell v. State, 194 So. 2d 878, 1967 Miss. LEXIS 1419 (Miss. 1967).

In a criminal trial the defendant’s wife could not testify against him without the consent of both. Wallace v. State, 254 Miss. 944, 183 So. 2d 525, 1966 Miss. LEXIS 1590 (Miss. 1966).

Under this section [Code 1942, § 1689] a wife is a competent witness before the grand jury investigating a charge that her husband had incestuous relations with their minor daughter, and an indictment returned against the husband is not void. Graham v. State, 250 Miss. 816, 168 So. 2d 496, 1964 Miss. LEXIS 507 (Miss. 1964).

Where prosecutor erroneously called defendant’s estranged wife to the witness stand causing defendant to object in presence of the jury to her competency as witness against him, defendant was not entitled to reversal since he made no motion for a mistrial at time of trial. Blackwell v. State, 44 So. 2d 409, 1950 Miss. LEXIS 457 (Miss. 1950).

In criminal prosecution against husband for unlawful possession of intoxicating liquor, it is improper for prosecution to call defendant’s wife and offer her as witness against him. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

Wife is incompetent as witness against husband in prosecution for unlawful possession of intoxicating liquor unless both she and her husband consent, and when case is close it is prejudicial error for prosecution to ask defendant and court to require answer as to whether defendant objected to wife’s testifying for state, particularly where statement of court impliedly left it entirely to the husband to consent or object. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

Common-law husband is not competent witness against his common-law wife in criminal prosecution against her for forgery. Wilson v. State, 204 Miss. 111, 37 So. 2d 19, 1948 Miss. LEXIS 348 (Miss. 1948).

Denial by court of motion for preliminary hearing on question of competency of state’s witness to testify in forgery prosecution against accused claiming to be common-law wife of witness is prejudicial error. Wilson v. State, 204 Miss. 111, 37 So. 2d 19, 1948 Miss. LEXIS 348 (Miss. 1948).

Introduction in prosecution for bigamy of defendant’s first wife who was sworn but withdrawn before testifying, was harmless error, where guilt of accused was fully established by other evidence. Bryant v. State, 179 Miss. 739, 176 So. 590, 1937 Miss. LEXIS 67 (Miss. 1937).

Husband not competent against wife suing third person. Spencer v. O'Bryant, 140 Miss. 474, 106 So. 6, 1925 Miss. LEXIS 282 (Miss. 1925).

State may not introduce wife to prove former marriage in prosecution of husband for bigamy. McQueen v. State, 139 Miss. 457, 104 So. 168, 1925 Miss. LEXIS 157 (Miss. 1925).

At common law one spouse could not be introduced to establish crime against other, except offenses committed by one against other. McQueen v. State, 139 Miss. 457, 104 So. 168, 1925 Miss. LEXIS 157 (Miss. 1925).

Bill for discovery attempting to make husband and wife testify against one another, not maintainable. Strauss v. Hutson, 104 Miss. 637, 61 So. 594, 1913 Miss. LEXIS 60 (Miss. 1913).

Wife not competent witness against accused prosecuted for burglary. Finklea v. State, 94 Miss. 777, 48 So. 1, 1909 Miss. LEXIS 333 (Miss. 1909).

Witness before grand jury could not decline to identify woman returning stolen property because she was wife of the thief, on the theory that since she could not be compelled to testify against her husband, the witness could not be compelled to testify. Rogers v. State, 88 Miss. 38, 40 So. 744, 1906 Miss. LEXIS 132 (Miss. 1906).

The wife is not a competent witness for a third person in a suit in chancery against the husband, who is joined as defendant, even though he be not a necessary party. Leach v. Shelby, 58 Miss. 681, 1881 Miss. LEXIS 24 (Miss. 1881).

A wife is not a competent witness against her husband who is on trial for crime. Byrd v. State, 57 Miss. 243, 1879 Miss. LEXIS 57 (Miss. 1879).

6. Controversies between spouses.

A husband’s assaults on his present wife, which formed the basis of a law suit by his former wife seeking custody of the parties’ minor child, constituted a “controversy” between the husband and his current wife under §13-5-1, and, thus, although the present wife could not be compelled to testify against her husband, she would, if willing, be competent to testify as to his acts of violence against her. McCuskey v. Jones, 441 So. 2d 1372, 1983 Miss. LEXIS 3062 (Miss. 1983).

7. —Criminal prosecutions.

Wife was incompetent as witness against husband to establish rape committed on her prior to marriage; wife is competent witness to acts of violence committed on her by husband only as to offenses during time marriage relation exists. Doss v. State, 156 Miss. 522, 126 So. 197, 1930 Miss. LEXIS 190 (Miss. 1930).

Prosecution of husband for vagrancy by wife is controversy between husband and wife. McRae v. State, 104 Miss. 861, 61 So. 977, 1913 Miss. LEXIS 90 (Miss. 1913).

The wife is a competent witness against her husband if the crime be an assault and battery committed on her person. Turner v. State, 60 Miss. 351, 1882 Miss. LEXIS 62 (Miss. 1882).

8. Communications between spouses.

Letter from wife to victim was privileged and should not have been admitted over wife’s objection, notwithstanding husband’s waiver of privilege, in prosecution of son for assault with intent to murder his father. Martin v. State, 203 Miss. 187, 33 So. 2d 825, 1948 Miss. LEXIS 249 (Miss. 1948).

Husband or wife cannot testify against other after divorce as to privileged communications. Hesdorffer v. Hiller, 111 Miss. 16, 71 So. 166, 1916 Miss. LEXIS 231 (Miss. 1916).

Wife competent to relate conduct and declarations of husband in presence of others, but not to her alone. Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 1913 Miss. LEXIS 85 (Miss. 1913).

9. Divorce, effect of.

In a prosecution for murder, a wife could testify against her husband regarding a statement made by him to her, in the presence of five other people where the parties had been divorced after the homicide but before the trial. Holden v. State, 399 So. 2d 1343, 1981 Miss. LEXIS 2011 (Miss. 1981).

The husband or wife may testify against each other after divorce, if the testimony does not relate to privileged communications. Hesdorffer v. Hiller, 111 Miss. 16, 71 So. 166, 1916 Miss. LEXIS 231 (Miss. 1916).

Divorced husband cannot testify against wife as to confidential communication between them. Hesdorffer v. Hiller, 111 Miss. 16, 71 So. 166, 1916 Miss. LEXIS 231 (Miss. 1916).

10. Consent or waiver.

There is no merit to objection to testimony on ground of inter-spousal immunity where spouse testified voluntarily. Jordan v. State, 513 So. 2d 574, 1987 Miss. LEXIS 2817 (Miss. 1987).

The competency of a wife to testify against her husband in a criminal prosecution may be waived, and either the husband or the wife may testify in any proceeding, civil or criminal, where both consent thereto. Brewer v. State, 233 So. 2d 779, 1970 Miss. LEXIS 1669 (Miss. 1970).

In a workmen’s compensation proceeding wherein both alleged widows of employee claimed compensation, one of the claimants who did not object to testimony of a witness who was her undivorced husband in effect consented that such witness could testify and she could not thereafter be heard to say that her undivorced husband was not a competent witness under this section [Code 1942, § 1689]. United Timber & Lumber Co. v. Alleged Dependents of Hill, 226 Miss. 540, 84 So. 2d 921, 1956 Miss. LEXIS 432 (Miss. 1956).

Where defendant, in a prosecution for neglecting to provide for his children, attempted to explain why he was separated from wife and consented to wife stating her side of the matter, error if any in permitting wife to testify held not reversible. Clark v. State, 181 Miss. 455, 180 So. 602, 1938 Miss. LEXIS 87 (Miss. 1938).

In larceny prosecution against husband for taking money belonging to the wife, permitting wife to testify was not reversible error, where objection to her competency was not made before reception of testimony. Huff v. State, 176 Miss. 443, 169 So. 839, 1936 Miss. LEXIS 153 (Miss. 1936).

11. Failure of spouse to testify.

In a murder prosecution, the state is not entitled to an instruction regarding the defendant’s failure to call his wife to the stand. Simpson v. State, 497 So. 2d 424, 1986 Miss. LEXIS 2724 (Miss. 1986).

At trial of murder charge to which defendant’s sole defense was self-defense, remarks by prosecutor, in closing argument, that the only reason defendant married his wife because he wanted to marry the only eyewitness to the murder he had committed, constituted an impermissible comment upon defendant’s failure to call his wife to testify, and the trial court’s refusal to sustain objections to such remarks was reversible error. Simpson v. State, 497 So. 2d 424, 1986 Miss. LEXIS 2724 (Miss. 1986).

General rule that an unfavorable inference may be indulged against a party who fails to produce material and necessary testimony which is within his power to control did not apply in a case where the material witness in question was wife of the party, and remark made by appellee’s counsel during summation with reference to the failure of the appellant to call his wife to testify required reversal. Daniels v. Beeson, 312 So. 2d 441, 1975 Miss. LEXIS 1643 (Miss. 1975).

Assignment of error that state was permitted to ask accused’s wife if she had testified at the preliminary trial and to make comment on such failure, without basis in record, will not be considered on appeal. Higgins v. State, 120 Miss. 823, 83 So. 245, 1919 Miss. LEXIS 134 (Miss. 1919).

Prosecuting attorney’s comment on failure of accused to call wife as witness, error. Smith v. State, 112 Miss. 802, 73 So. 793, 1916 Miss. LEXIS 180 (Miss. 1916), overruled, Ladnier v. State, 155 Miss. 348, 124 So. 432, 1929 Miss. LEXIS 299 (Miss. 1929).

Asking accused on cross-examination if wife would testify and if he would object to her testimony, improper but not reversible error. Carter v. State, 99 Miss. 435, 54 So. 734, 1911 Miss. LEXIS 189 (Miss. 1911).

Error to refuse instruction to disregard comments of district attorney on failure of husband to call wife as witness. Johnson v. State, 94 Miss. 91, 47 So. 897, 1908 Miss. LEXIS 30 (Miss. 1908).

The failure of the husband to call his wife as a witness for him in a criminal case is not a proper subject of comment by counsel. Johnson v. State, 63 Miss. 313, 1885 Miss. LEXIS 67 (Miss. 1885); Cole v. State, 75 Miss. 142, 21 So. 706, 1897 Miss. LEXIS 90 (Miss. 1897).

12. Evidence.

The court did not err when it admitted a pistol and jewelry into evidence, notwithstanding that those items were obtained by virtue of information obtained from the defendant’s wife; this section, insofar as it relates to a criminal prosecution, limits itself to the proper conduct of the trial itself and does not purport to regulate or restrict the conduct of police officers in an ongoing criminal investigation. Clunan v. State, 736 So. 2d 1078, 1999 Miss. App. LEXIS 75 (Miss. Ct. App. 1999).

Statement defendant’s wife made while in custody was inadmissible in light of explicit prohibition against spousal testimony. Williams v. State, 667 So. 2d 15, 1996 Miss. LEXIS 3 (Miss. 1996), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

There was no violation of the statute concerning spousal competency, §13-1-5, or the evidence rule concerning the husband-wife privilege, Rule 504, Miss. R. Ev., where a defendant’s wife told the police where to locate certain items which were subsequently used as physical evidence in the prosecution of the defendant for capital murder committed during the commission of a robbery, since the location of the items did not fall within any protected class of communication, and no out-of-court statements or trial testimony of the wife was admitted against the defendant. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

Although the intended victim of an attempted murder could testify that he was informed of the intended crime, it was reversible error to permit him to testify, over objection, to telephone conversations initiated by the defendant’s wife wherein she related to him the major details of the plot by her husband and others to take his life. Ford v. State, 218 So. 2d 731, 1969 Miss. LEXIS 1616 (Miss. 1969).

Admission of statement made by defendant’s wife to witness in prosecution for murder that “he has killed Marvin and fixing to kill –,” was not prejudicial error where defendant admitted the killing. Harris v. State, 209 Miss. 141, 46 So. 2d 91, 1950 Miss. LEXIS 372 (Miss. 1950).

Although wife’s letter to the prosecuting witness in a case of assault with intent to murder was privileged in the absence of a waiver by both husband and wife, the defendant could not set up its admission as error where its contents were not prejudicial to the defendant. Martin v. State, 203 Miss. 187, 33 So. 2d 825, 1948 Miss. LEXIS 249 (Miss. 1948).

No statement made by husband either as a witness or otherwise can be used against the wife in any litigation to which she is a party, unless the husband was acting as the authorized agent of the wife. Gunter v. Reeves, 198 Miss. 31, 21 So. 2d 468, 1945 Miss. LEXIS 166 (Miss. 1945).

Rule that no statement made by husband can be used against the wife in a litigation to which she is a party is inapplicable so far as statement or admission is to explain the conduct of a third person. Gunter v. Reeves, 198 Miss. 31, 21 So. 2d 468, 1945 Miss. LEXIS 166 (Miss. 1945).

Testimony of a third person in a murder prosecution as to statement made by defendant’s wife to the defendant was incompetent and prejudicial to the defendant, since the wife herself was incompetent to testify against her husband under this section [Code 1942, § 1689]. Smith v. State, 193 Miss. 474, 10 So. 2d 352, 1942 Miss. LEXIS 139 (Miss. 1942).

Where wife testified against husband in larceny prosecution without objection, court’s denial of defendant’s motion made, at conclusion of State’s evidence, on ground that evidence was not sufficient to make out offense, held not reversible error, since court was not required to separate objectionable evidence from evidence which was free from objection. Huff v. State, 176 Miss. 443, 169 So. 839, 1936 Miss. LEXIS 153 (Miss. 1936).

Evidence of charges made by wife against husband accusing him of crime not admissible as she could not testify that she made the accusation. Pearson v. State, 97 Miss. 841, 53 So. 689, 1910 Miss. LEXIS 315 (Miss. 1910).

Editor’s Notes —

Former §13-1-7 concerned the competency of a claimant against the estate of a decedent or a person non compos mentis.

Former §13-1-9 related to competency of an accused.

Cross References —

What constitutes perjury, see §97-9-59.

Commitment by court of party reasonably believed to have committed perjury before court, see §99-3-29.

Requisites of an indictment for perjury, see §99-7-39.

Requisites of an indictment for subornation of perjury, see §99-7-41.

Impeachment of witness by evidence of conviction of crime, see Miss. R. Evid. 609.

RESEARCH REFERENCES

ALR.

Conviction in another jurisdiction as disqualifying witness. 2 A.L.R.2d 579.

Propriety, on impeaching credibility of witness in civil case by showing former conviction, of questions relating to nature and extent of punishment. 67 A.L.R.3d 761.

Propriety, on impeaching credibility of witness in criminal case by showing former conviction, of questions relating to nature and extent of punishment. 67 A.L.R.3d 775.

Use of unrelated misdemeanor conviction (other than for traffic offense) to impeach general credibility of witness in state civil case. 97 A.L.R.3d 1150.

Conviction by courts-martial as proper subject of cross-examination for impeachment purposes. 7 A.L.R.4th 468.

Propriety of jury instruction regarding credibility of witness who has been convicted of a crime. 9 A.L.R.4th 897.

Permissibility of impeaching credibility of witness by showing verdict of guilty without judgment of sentence thereon. 28 A.L.R.4th 647.

Materiality of testimony forming basis of perjury charge as question for court or jury in state trial. 37 A.L.R.4th 948.

Requirement that defendant in state court testify in order to preserve alleged trial error in rulings on admissibility of prior conviction impeachment evidence under Uniform Rule of Evidence 609, or similar provision or holding – post-Luce cases. 80 A.L.R.4th 1028.

Propriety of using prior conviction for drug dealing to impeach witness in criminal trial. 37 A.L.R.5th 319.

Review on appeal, where accused does not testify, of trial court’s preliminary ruling that evidence of prior convictions will be admissible under Rule 609 of the Federal Rules of Evidence if accused does testify. 54 A.L.R. Fed. 694.

Am. Jur.

81 Am. Jur. 2d (Rev), Witnesses §§ 195, 196.

3 Am. Jur. Proof of Facts, Character and Reputation, Proof No. 1 (general reputation in community or in place of employment, business, or profession).

3 Am. Jur. Proof of Facts, Conviction of Crime, Proof No. 1 (cross-examination concerning previous conviction).

3 Am. Jur. Proof of Facts, Conviction of Crime, Proof No. 2 (introduction of record after denial of previous conviction).

36 Am. Jur. Proof of Facts 2d 747, Impeachment of Witness by Prior Criminal Conviction.

CJS.

98 C.J.S., Witnesses §§ 196, 198-200.

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss. L. J. 547, Winter, 1997.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 13:1, 13:3.

JUDICIAL DECISIONS

1. In general.

Criminal statute and rule of evidence rendering convicted perjurer incompetent to testify in criminal proceeding violated provision of state constitution entitling defendant to compulsory process, as evidentiary rule gave district attorney discretion as to whether to render particular witness incompetent by prosecuting him for perjury or preserve his competence by declining to prosecute known perjury. Fuselier v. State, 702 So. 2d 388, 1997 Miss. LEXIS 529 (Miss. 1997).

A state’s witness was not incompetent to testify at a capital murder trial on the basis that he was a conceded perjurer where he had not been convicted of perjury. White v. State, 532 So. 2d 1207, 1988 Miss. LEXIS 365 (Miss. 1988).

In ruling on the admissibility of a prior conviction for impeachment purposes, a trial judge must make a determination that the probative value outweighs the prejudicial effect of the evidence on the record, and should articulate the reasons for his findings. As a framework for articulating the court’s determination on the record, the judge should consider the impeachment value of the crime, the point in time of the conviction and the witness’s subsequent history, the similarity of the past crime and the charged crime, the importance of the defendant’s testimony, and the centrality of the credibility issue. Johnson v. State, 525 So. 2d 809, 1988 Miss. LEXIS 238 (Miss. 1988).

Under law preceding adoption of new Mississippi Rules of Evidence as of January 1, 1986, driving under influence of alcohol was misdemeanor of sufficient gravity that conviction thereof could be used to impeach witness. Wetz v. State, 503 So. 2d 803, 1987 Miss. LEXIS 2362 (Miss. 1987).

Defendant charged with armed robbery is denied fair trial by introduction of detail surrounding prior conviction and evidence of other crimes not resulting in convictions; error may be raised on appeal notwithstanding defendant’s failure to object at time of trial where development of inadmissible detail is lengthy and repetitious. Gallion v. State, 469 So. 2d 1247, 1985 Miss. LEXIS 2096 (Miss. 1985).

In a prosecution for burglary and theft, the prosecutor was properly allowed to specify each crime that defendant had been convicted of prior to trial, since any felony may be used to impeach the testimony of a witness under §13-1-11. Johnson v. State, 452 So. 2d 850, 1984 Miss. LEXIS 1764 (Miss. 1984), but see McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

Under §13-1-11, defendant’s prior convictions were properly introduced to impeach him. Burns v. State, 438 So. 2d 1347, 1983 Miss. LEXIS 2934 (Miss. 1983).

In a prosecution for the sale of marijuana, the trial court committed reversible error in limiting the impeachment of the state’s undercover informant to questions about the latter’s reputation for truth and veracity and excluding any cross-examination on the informant’s prior convictions. Valentine v. State, 396 So. 2d 15, 1981 Miss. LEXIS 1977 (Miss. 1981).

The trial court in an armed robbery prosecution erred in refusing to allow defense counsel to question an accomplice-prosecution witness concerning convictions of misdemeanors, since a witness’ credibility may be impeached by evidence of misdemeanors as well as infamous crimes; the trial court also erred in refusing to permit defense counsel to cross-examine another witness concerning the nature of the felonies of which he had previously been convicted. Sanders v. State, 352 So. 2d 822, 1977 Miss. LEXIS 1983 (Miss. 1977).

Although the defendant admitted on direct examination that he had been previously convicted of a crime this did not foreclose the prosecution from cross-examining him on this point. Wells v. State, 288 So. 2d 860, 1974 Miss. LEXIS 1877 (Miss. 1974).

The jury in a robbery case may take into consideration admitted convictions of defendants testifying as witnesses of fighting, disorderly conduct, assault and battery, larceny, vagrancy, resisting arrest, and breaking jail. Parrish v. State, 237 Miss. 37, 112 So. 2d 548, 1959 Miss. LEXIS 446 (Miss. 1959).

In a prosecution for the sale of intoxicating liquors, since defendant’s admission, upon cross-examination, that on the day prior to the date of the alleged offense he had been convicted of possessing liquor went to defendant’s credibility as a witness, and the loss or impairment of credibility affected both defendant’s character and reputation, the trial court committed reversible error in refusing to instruct that the jury was required to believe from the evidence, beyond a reasonable doubt, that the defendant made the particular sale of liquor, and that they were not warranted in convicting him for the sale merely because of his former conviction of possessing liquor and the probable attendant character and reputation arising therefrom. Hassell v. State, 229 Miss. 824, 92 So. 2d 194, 1957 Miss. LEXIS 330 (Miss. 1957).

At common law a person convicted of most felonies was disqualified as a witness, but the statute removes this disqualification and conviction now may be used to impeach his credibility and that is a question for the jury. Wetzel v. State, 225 Miss. 450, 76 So. 2d 188, 76 So. 2d 194, 76 So. 2d 846, 78 So. 2d 774, 84 So. 2d 429, 1954 Miss. LEXIS 607, 1954 Miss. LEXIS 608, 1955 Miss. LEXIS 601, 1955 Miss. LEXIS 602, 1956 Miss. LEXIS 396, 1957 Miss. LEXIS 583 (Miss. 1957).

Conviction of perjury, though creating a general disqualification to testify at common law and in Mississippi, goes only to the convict’s credit in the federal court, at least when the conviction was under the federal statute punishing perjury. Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359, 1945 U.S. App. LEXIS 2597 (5th Cir. Miss. 1945).

Evidence of conviction for offense except perjury and subornation of perjury is admissible to impeach the credibility of witness. Brister v. Dunaway, 149 Miss. 5, 115 So. 36, 1927 Miss. LEXIS 105 (Miss. 1927).

Accused testifying in his own behalf may be impeached on cross-examination by proof of prior convictions of crimes or misdemeanors. Williams v. State, 87 Miss. 373, 39 So. 1006, 1905 Miss. LEXIS 151 (Miss. 1905).

Under the statute a convicted principal may testify against his accessory. Keithler v. State, 18 Miss. 192, 1848 Miss. LEXIS 74 (Miss. 1848).

Cross References —

Relevancy of evidence generally, see Miss. R. Evid. 401-412.

Admissibility of evidence of religious beliefs or opinions of witness with respect to issue of credibility, see Miss. R. Evid. 610.

Taking testimony, see Miss. R. Civ. P. 43.

RESEARCH REFERENCES

ALR.

Testifying in civil proceeding as waiver of privilege against self-incrimination. 72 A.L.R.2d 830.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question. 9 A.L.R.3d 990.

Witness’ refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions. 43 A.L.R.3d 1413.

Cross-examination of witness as to his mental state or condition, to impeach competency or credibility. 44 A.L.R.3d 1203.

Propriety, on impeaching credibility of witness in civil case by showing former conviction, of questions relating to nature and extent of punishment. 67 A.L.R.3d 761.

Propriety, on impeaching credibility of witness in criminal case by showing former conviction, of questions relating to nature and extent of punishment. 67 A.L.R.3d 775.

Right to impeach credibility of accused by showing prior conviction, as affected by remoteness in time of prior offense. 67 A.L.R.3d 824.

Right to impeach witness in criminal case by inquiry or evidence as to witness’ criminal activity not having resulted in arrest or charge – modern state cases. 24 A.L.R.4th 333.

Use of plea bargain or grant of immunity as improper vouching for credibility of witness – state cases. 58 A.L.R.4th 1229.

Adverse presumption or inference based on party’s failure to produce or examine family member other than spouse – modern cases. 80 A.L.R.4th 337.

Adverse presumption or inference based on party’s failure to produce or examine witness with employment relationship to party – modern cases. 80 A.L.R.4th 405.

Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution – modern cases. 80 A.L.R.4th 547.

Requirement that defendant in state court testify in order to preserve alleged trial error in rulings on admissibility of prior conviction impeachment evidence under Uniform Rule of Evidence 609, or similar provision or holding – post-Luce cases. 80 A.L.R.4th 1028.

Adverse presumption or inference based on state’s failure to produce or examine law enforcement personnel – modern cases. 81 A.L.R.4th 872.

Adverse presumption or inference based on party’s failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue – modern cases. 81 A.L.R.4th 939.

Permissibility of testimony by telephone in state trial. 85 A.L.R.4th 476.

Propriety of using prior conviction for drug dealing to impeach witness in criminal trial. 37 A.L.R.5th 319.

Requirement that court advise accused of, and make inquiry with respect to, waiver of right to testify. 72 A.L.R.5th 403.

Propriety under Rule 403 of the Federal Rules of Evidence, permitting exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time, of attack on credibility of witness for party. 48 A.L.R. Fed. 390.

Am. Jur.

81 Am. Jur. 2d (Rev), Witnesses §§ 770 et seq., 828 et seq.

3 Am. Jur. Proof of Facts, Conviction of Crime, Proof No. 1 (cross-examination concerning previous conviction).

3 Am. Jur. Proof of Facts, Conviction of Crime, Proof No. 2 (introduction of record after denial of previous conviction).

36 Am. Jur. Proof of Facts 2d 747, Impeachment of Witness by Prior Criminal Conviction.

6 Am. Jur. Trials, Cross-Examination of Defendant, §§ 17 et seq.

6 Am. Jur. Trials, Cross-Examination of Plaintiff and Plaintiff’s Witnesses, §§ 26 et seq.

CJS.

31A C.J.S., Evidence §§ 657-665

98 C.J.S., Witnesses §§ 249, 252 et seq.

98 C.J.S., Witnesses §§ 732, 745 et seq.

Law Reviews.

1982 Mississippi Supreme Court Review: Criminal Law and Procedure: Rape. 53 Miss. L. J. 149, March 1983.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 10:3, 12:1, 12:4, 12:5, 13:1, 13:3, 13:8, 15:2, 15:11.

JUDICIAL DECISIONS

1. Examination and cross-examination in general.

2. Interest in cause.

3. Conviction of crime.

4. Contradiction and impeachment of witness.

5. Evidence.

6. Instructions.

7. Punishment for contempt.

8. Judgment.

1. Examination and cross-examination in general.

A trial court did not err in refusing to permit cross-examination of a witness concerning her use of marijuana and involvement in a robbery since specific instances of conduct may be used to attack the credibility of a witness on cross-examination only if probative of truthfulness or untruthfulness, and neither robbery nor marijuana use were probative of the witness’ character for truthfulness or untruthfulness. Johnston v. State, 618 So. 2d 90, 1993 Miss. LEXIS 181 (Miss. 1993).

At a hearing on a former wife’s petition to hold her former husband in contempt for failure to pay child support, the wife could not invoke her right against self-incrimination to shield herself from questions on cross-examination as to whether she maintained that the husband had an account at a particular bank, where the wife had voluntarily taken the stand on direct examination and unequivocally identified the signature on the bank account as the husband’s. A party may not testify as to material facts in proceedings which he or she initiated, and later invoke the privilege against self-incrimination on those same matters. Thus, when the wife voluntarily took the stand and testified to material matters on direct examination, she also waived her right against self-incrimination. Wallace v. Jones, 572 So. 2d 371, 1990 Miss. LEXIS 565 (Miss. 1990).

Although a judge has wide discretionary control over the extent of cross-examination, the arbitrary curtailment upon a proper subject of cross-examination may be grounds for reversal. Thus, denial of a defendant’s right to a broad and extensive cross-examination of a prosecution witness substantially affected the defendant’s rights where the prosecution’s evidence was largely circumstantial, with the exception of that witness. Sayles v. State, 552 So. 2d 1383, 1989 Miss. LEXIS 472 (Miss. 1989).

A defendant should have been permitted to cross-examine a prosecution witness as to an alleged affair between the defendant and the witness’ wife, even though the affair took place approximately 2 to 5 years prior to the trial; it was still likely that the witness could or would have a grudge against the defendant, and this question should have been determined by the jury. Sayles v. State, 552 So. 2d 1383, 1989 Miss. LEXIS 472 (Miss. 1989).

Bias of mother, who had not testified at trial, was not allowed to be established, although bias, motive, or interest are always material and may be proven by extrinsic evidence, because fact that mother, standing alone, had extreme bias and motive to lie was too remote to impeach credibility of children. Cantrell v. State, 507 So. 2d 325, 1987 Miss. LEXIS 2478 (Miss. 1987).

When witness voluntarily took the stand in a perjury trial and testified on behalf of the defendant therein as to the truthfulness of witness’ brother’s statements concerning a murder, to which witness had pled guilty and had been sentenced, witness waived his Fifth Amendment right and was subject to cross-examination on all relevant and material matters. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

Requiring witness, who had already pled guilty to the murder, to answer questions concerning that murder did not expose witness to prosecution for the murder and did not infringe upon his Fifth Amendment rights, where the witness’ petition for writ of habeas corpus or, in the alternative, petition to withdraw his guilty plea, came months after the term of court expired wherein he had pled and sentence had been entered. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

In prosecution for false pretenses by delivery of a bad check, it was not error for the state to cross-examine a witness who had once been married to defendant and to whom defendant had been furnishing child support. Parker v. State, 484 So. 2d 1033, 1986 Miss. LEXIS 2756 (Miss. 1986).

Code 1942 § 2120 [Code 1972 §13-1-13] does not permit the cross examination of an official charged with embezzlement as to censures by a grand jury. Interior Contractors, Inc. v. Western Waterproofing Co., 233 So. 2d 829, 1970 Miss. LEXIS 1687 (Miss. 1970).

Where the accused had taken the stand as a witness in a prosecution for unlawful possession of a slot machine, he could not complain of being asked whether he had ever sold intoxicating liquor at his place of business wherein the slot machine was found. Brady v. State, 229 Miss. 677, 91 So. 2d 751, 1957 Miss. LEXIS 314 (Miss. 1957).

Where the accused took the stand in prosecution for assault and battery and testified as a witness he necessarily placed his veracity at issue and this justified the state in attacking this veracity. Ables v. State, 223 Miss. 770, 79 So. 2d 241, 1955 Miss. LEXIS 437 (Miss. 1955).

It is only by virtue of this section [Code 1942, § 1693] that defendant’s conviction of former offenses could be inquired into on his cross-examination, and the statute must be strictly construed in favor of defendant. Berry v. State, 212 Miss. 164, 54 So. 2d 222, 1951 Miss. LEXIS 438 (Miss. 1951).

No witness is exempt from right of fair cross-examination. Mississippi Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164, 1931 Miss. LEXIS 244 (Miss. 1931).

2. Interest in cause.

Letters written by defendant to relatives and page from manuscript of book about defendant’s life, which expressed defendant’s hostile views toward blacks and civil rights leaders and proclaimed his involvement in the Ku Klux Klan, were relevant to establish defendant’s motive for killing black leader of civil rights organization, and more probative on such issue than prejudicial, especially as there was no evidence that defendant had ever met victim. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Testimony of federal agency informant who infiltrated Ku Klux Klan that defendant, a Klan member, discussed “selective killings” as a “partial solution to the right wing’s problem,” and then said that “he would never ask anyone to do anything that he hadn’t already done himself,” was relevant to show that defendant had violent tendencies towards his perceived political and social enemies, and therefore, testimony was admissible in prosecution for murder of black leader of civil rights organization. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Impeachment of former police officer through use of officer’s grand jury testimony was not error in murder prosecution; grand jury testimony was transcribed from tape recording, the transcript was provided to the defense, and the tape recording was offered to the defense. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Trial court improperly limited defendant’s right to testify and to cross-examine and impeach certain witnesses; trial court did not allow defendant to cross-examine co-indictee concerning his interest and bias in case by showing threats co-indictee made against defendant’s other witnesses; defendant also was prevented from questioning co-indictee regarding possible promises of leniency from prosecution in return for his testimony against defendant; trial court also improperly denied defendant opportunity to present witness to impeach co-indictee’s denial of threats against potential witnesses for defendant, on basis that proper predicate had not been laid for impeachment, where co-indictee had been asked if he threatened witness and he denied it; moreover, trial court sustained objections during co-indictee’s questioning which for all practical purposes prevented laying of full and proper predicate. Hill v. State, 512 So. 2d 883, 1987 Miss. LEXIS 2782 (Miss. 1987).

Counsel is not precluded from seeking in good faith on cross-examination to elicit interest, bias, or prejudice of witness because his answer may reveal that liability insurance company is interested. Mississippi Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164, 1931 Miss. LEXIS 244 (Miss. 1931).

3. Conviction of crime.

In a prosecution for sexual battery, the trial court should have granted the defendant’s motion in limine to preclude admission, for impeachment use pursuant to Rule 609, Miss. R. Ev., of his prior conviction of touching a child for lustful purposes, even though a social worker testified that a general characteristic of pedophiles is an inability to be truthful, since admission of the prior conviction would have been manifestly prejudicial and mere reference to the conviction during the trial would have prejudiced the jury irreparably. Hopkins v. State, 639 So. 2d 1247, 1993 Miss. LEXIS 486 (Miss. 1993).

A prior arson conviction might be admissible for impeachment purposes as a crime involving dishonesty or false statement in situations, for example, where the defendant burned a building as part of a scheme to defraud an insurance company. However, where an arson conviction was admitted for impeachment purposes and the prosecution failed to offer prima facie evidence that the arson involved fraud, dishonesty, false statement or other elements suggesting a propensity for lying, the case would be reversed and remanded for a new trial on all issues. McInnis v. State, 527 So. 2d 84, 1988 Miss. LEXIS 248 (Miss. 1988), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

The decision whether to give an advance ruling on the admissibility of prior convictions for impeachment purposes is discretionary with the trial judge. McInnis v. State, 527 So. 2d 84, 1988 Miss. LEXIS 248 (Miss. 1988), overruled in part, White v. State, 785 So. 2d 1059, 2001 Miss. LEXIS 44 (Miss. 2001).

In ruling on the admissibility of a prior conviction for impeachment purposes, a trial judge must make a determination that the probative value outweighs the prejudicial effect of the evidence on the record, and should articulate the reasons for his findings. As a framework for articulating the court’s determination on the record, the judge should consider the impeachment value of the crime, the point in time of the conviction and the witness’s subsequent history, the similarity of the past crime and the charged crime, the importance of the defendant’s testimony, and the centrality of the credibility issue. Johnson v. State, 525 So. 2d 809, 1988 Miss. LEXIS 238 (Miss. 1988).

Prosecutor’s question concerning prior conviction, asking whether that crime had involved breaking “in on a little 12-year old girl,” was improper because, while accused who has taken stand on his own behalf may be questioned regarding previous convictions, defendant may not be asked to divulge any details of convictions including whether or not he served time for conviction; asking of question did not constitute reversible error, because upon defense objection, jury was instructed to ignore question and this admonition came before defendant could answer. Williams v. State, 512 So. 2d 666, 1987 Miss. LEXIS 2645 (Miss. 1987).

Police officer who arrests suspect may testify as subsequent trial that arrest was made pursuant to outstanding arrest warrant, where no mention is made of charges upon which warrant is based. Brown v. State, 483 So. 2d 328, 1986 Miss. LEXIS 2372 (Miss. 1986).

Criminal defendant is entitled to cross-examine witnesses upon whom state relies heavily regarding pending criminal charges against witnesses, notwithstanding lack of evidence of bargain between state and witnesses. Hall v. State, 476 So. 2d 26, 1985 Miss. LEXIS 2253 (Miss. 1985).

Defendant charged with armed robbery is denied fair trial by introduction of detail surrounding prior conviction and evidence of other crimes not resulting in convictions; error may be raised on appeal notwithstanding defendant’s failure to object at time of trial where development of inadmissible detail is lengthy and repetitious. Gallion v. State, 469 So. 2d 1247, 1985 Miss. LEXIS 2096 (Miss. 1985).

Prosecutor may not impeach witness by showing that witness’ relatives or acquaintances have prior convictions. Acevedo v. State, 467 So. 2d 220, 1985 Miss. LEXIS 2018 (Miss. 1985).

In a prosecution for burglary, defendant was not entitled to a mistrial based on the prosecution’s failure to prove, by extrinsic evidence the prior convictions of a witness that the prosecution had attempted to introduce to impeach the witness, where the witness either denied or claimed not to remember a number of the incidents referred to, the witness was questioned about 12 specific prior criminal convictions for impeachment purposes, the prosecution recited dates and crimes, no objection to the method of impeachment was made by the defendant, and where defendant’s attorney questioned the witness and then rested. Cummings v. State, 465 So. 2d 993, 1985 Miss. LEXIS 1847 (Miss. 1985).

When prosecution questions, for impeachment purposes, defense witness about specific prior criminal convictions, reciting dates and crimes, and no objection to method of impeachment is made, defendant may not obtain mistrial on basis of assertion that state has failed to prove prior convictions by extrinsic evidence. Cummings v. State, 465 So. 2d 993, 1985 Miss. LEXIS 1847 (Miss. 1985).

Limitation in §99-19-101 on use in sentencing phase of capital case of prior convictions for purpose of establishing aggravating circumstances in no way alters established rule of evidence (§13-1-13) under which defendant who testifies may have credibility impeached by prior convictions, whether misdemeanors or felonies. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

Where a witness does not deny a previous conviction but states that he cannot recall the conviction, evidence of the prior conviction may be introduced under §13-1-13. Lovelace v. State, 410 So. 2d 876, 1982 Miss. LEXIS 1875 (Miss. 1982).

Where the defendant took the stand in his own defense, the district attorney had a right to cross-examine him as to his previous criminal convictions. Thornton v. State, 313 So. 2d 16, 1975 Miss. LEXIS 1662 (Miss. 1975).

Evidence of a previous conviction, based on a plea of nolo contendere, is not admissible in another case. Dependents of Veasley v. Attala Co., 312 So. 2d 7, 1975 Miss. LEXIS 1634 (Miss. 1975).

Trial court erred in refusing to allow the defense counsel to ask a prosecution witness if he had ever been convicted of a crime or misdemeanor, and such error was not harmless as the credibility of the witness was the real issue for the jury to determine in the case. Baker v. State, 307 So. 2d 545, 1975 Miss. LEXIS 1819 (Miss. 1975), but see Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

Although the defendant admitted on direct examination that he had been previously convicted of a crime this did not foreclose the prosecution from cross-examining him on this point. Wells v. State, 288 So. 2d 860, 1974 Miss. LEXIS 1877 (Miss. 1974).

It is proper to impeach a witness by showing previous conviction of crimes. Clanton v. State, 279 So. 2d 599, 1973 Miss. LEXIS 1470 (Miss. 1973).

Nothing less than a final judgment, conclusively establishing guilt, will satisfy the meaning of the word “conviction” as used in Code 1942, § 1693. Murphree v. Hudnall, 278 So. 2d 427, 1973 Miss. LEXIS 1441 (Miss. 1973).

Examination of defendant as to other crimes must be limited to convictions and even then the details of the crime cannot be inquired into. Allison v. State, 274 So. 2d 678, 1973 Miss. LEXIS 1609 (Miss. 1973).

Even if defendant’s reputation for peace and violence was properly put in issue when defense counsel in effect inquired into the reputation of the defendant, nevertheless the district attorney went too far a field in attempting to contradict the testimony as to the good reputation of the defendant for peace and violence and to bring out details of crimes for which defendant had not even been indicted, such as 4 other assaults, an incident in which defendant allegedly killed a man, and an incident in which he also killed a baby with a stray shot. Allison v. State, 274 So. 2d 678, 1973 Miss. LEXIS 1609 (Miss. 1973).

In view of the provision in Code 1942, § 8280 to the effect that a person convicted of a traffic offense cannot have his credibility impeached for convictions of such offenses as speeding, driving without proper driver’s license and the like, a person convicted of such offenses cannot be examined with respect thereto under earlier § 1693. Jones v. State, 268 So. 2d 348, 1972 Miss. LEXIS 1198 (Miss. 1972).

The right to cross-examine a defendant with reference to his former convictions in order to impeach or discredit his testimony is limited to the fact that the defendant was convicted and does not include the right to go into the details of the former crime, nor into the punishment given as a result of the conviction. Murray v. State, 266 So. 2d 139, 1972 Miss. LEXIS 1388 (Miss. 1972), cert. denied, 411 U.S. 907, 93 S. Ct. 1534, 36 L. Ed. 2d 196, 1973 U.S. LEXIS 2937 (U.S. 1973).

Where, after the defendant had admitted one previous conviction, and the prosecutor had inferred that the defendant had been absent without official leave and had been convicted of crimes in three different states, the prosecutor responded to the defense statement that if the prosecution had any evidence of other convictions they should produce it in the proper manner, replied before the jury, “I will be glad to produce it,” without thereafter producing a scintilla of evidence of other convictions, prejudicial error was committed. Johns v. State, 255 So. 2d 322, 1971 Miss. LEXIS 1287 (Miss. 1971).

Under this section [Code 1942, § 1693] the state may show that the defendant had been convicted of criminal offenses for the purpose of discrediting him as a witness, provided that the details of the same are not given. Benedetti v. State, 249 So. 2d 671, 1971 Miss. LEXIS 1179 (Miss. 1971).

In a prosecution of a justice of the peace for embezzlement, the district attorney’s cross-examination of the defendant as to the number of times he had been criticized by the grand jury constituted reversible error, since, while the section [Code 1942, § 1693] permits a cross-examination of a defendant as to convictions, it never permits cross-examination as to indictments and certainly not as to censures by the grand jury, which are hearsay in nature and can only be enlisted for the purpose of degrading and prejudicing the defendant in the eyes of the jury. Interior Contractors, Inc. v. Western Waterproofing Co., 233 So. 2d 829, 1970 Miss. LEXIS 1687 (Miss. 1970).

While the district attorney is not permitted to question a defendant about details of prior convictions, where a defendant in response to a question as to prior convictions, testified that he had been convicted of traffic violations and burglary, and that he had been sentenced to the penitentiary and had been released on parole, the district attorney was authorized, by this section [Code 1942, § 1693], to cross-examine the defendant about former offenses not mentioned on direct testimony, which questioning did not extend to details of convictions. Mangrum v. State, 232 So. 2d 703, 1970 Miss. LEXIS 1634 (Miss. 1970).

Exclusion of certificates of conviction of adverse witnesses is not error where they admit having been convicted. Matthews v. State, 243 Miss. 568, 139 So. 2d 386, 1962 Miss. LEXIS 377 (Miss. 1962).

A witness may be questioned only as to conviction, and not as to whether he has been indicted. Statham v. Blaine, 234 Miss. 649, 107 So. 2d 93, 1959 Miss. LEXIS 575 (Miss. 1959).

Where the accused took the stand as a witness in a prosecution for second degree arson, he thereby subjected himself to cross-examination, and made competent his own testimony, or any other admissible evidence, tending to establish his former conviction of crimes. Dorroh v. State, 229 Miss. 315, 90 So. 2d 653, 1956 Miss. LEXIS 611 (Miss. 1956).

Questions to accused concerning his prior convictions were proper under this section [Code 1942, § 1693]. Jones v. State, 228 Miss. 458, 88 So. 2d 91, 1956 Miss. LEXIS 534 (Miss. 1956).

Error of the lower court in permitting the district attorney in prosecution for murder, over objection, to cross-examine the accused in regard to convictions while in the military service and in regard to the type of discharge he received from the military service, was harmless inasmuch as the accused freely and voluntarily confessed to a state of facts making out a clear case of murder and no question was raised in the record as to the confession not being entirely free and voluntary. McNair v. Mississippi, 223 Miss. 83, 77 So. 2d 306, 1955 Miss. LEXIS 356 (Miss. 1955).

In an action by a passenger against an owner of a taxicab for personal injuries, questions as to indictments pending against the passenger would have been improper. Garraga v. Yellow Cab Co., 222 Miss. 739, 77 So. 2d 276, 1955 Miss. LEXIS 658 (Miss. 1955).

In an action by a passenger against owner of a taxicab for injuries sustained where passenger fell out of a moving cab, it was proper cross-examination to ask passenger of convictions for violations of internal revenue laws. Garraga v. Yellow Cab Co., 222 Miss. 739, 77 So. 2d 276, 1955 Miss. LEXIS 658 (Miss. 1955).

At common law a person convicted of most felonies was disqualified as a witness, but the statute removes this disqualification and conviction now may be used to impeach his credibility. Wetzel v. State, 225 Miss. 450, 76 So. 2d 188, 76 So. 2d 194, 76 So. 2d 846, 78 So. 2d 774, 84 So. 2d 429, 1954 Miss. LEXIS 607, 1954 Miss. LEXIS 608, 1955 Miss. LEXIS 601, 1955 Miss. LEXIS 602, 1956 Miss. LEXIS 396, 1957 Miss. LEXIS 583 (Miss. 1957).

In prosecution for murder where the defendant made no objection to prosecutor’s cross-examination of five defense witnesses concerning prior conviction, except as to one question asked the defendant, and that objection was properly sustained and where appellant made no motion for a mistrial, even if there was an error in cross-examination the accused failed to preserve that point on appeal. Wetzel v. State, 225 Miss. 450, 76 So. 2d 188, 76 So. 2d 194, 76 So. 2d 846, 78 So. 2d 774, 84 So. 2d 429, 1954 Miss. LEXIS 607, 1954 Miss. LEXIS 608, 1955 Miss. LEXIS 601, 1955 Miss. LEXIS 602, 1956 Miss. LEXIS 396, 1957 Miss. LEXIS 583 (Miss. 1957).

Examination of a witness touching his conviction of a crime may extend to misdemeanors as well as to infamous crimes and the record of conviction of a misdemeanor is admissible to impeach the veracity of a witness. Breland v. State, 221 Miss. 371, 73 So. 2d 267, 1954 Miss. LEXIS 547 (Miss. 1954).

In a prosecution for unlawful sale of intoxicating liquors, where the accused denied that he was ever convicted of a crime, it was an error to allow admission in evidence of a justice of peace court docket which showed only that the accused was charged with a crime. Breland v. State, 221 Miss. 371, 73 So. 2d 267, 1954 Miss. LEXIS 547 (Miss. 1954).

This section [Code 1942, § 1693] permits a witness to be examined only concerning his conviction of a crime and not concerning its details. Smith v. State, 217 Miss. 123, 63 So. 2d 557, 1953 Miss. LEXIS 416 (Miss. 1953).

In prosecution for assault and battery with intent to kill, defendant’s prior conviction of drunkenness was competent evidence against him when both sides, without objection, entered upon proof of fact whether he was drunk or drinking on night of crime, and defendant took stand as witness, as his prior conviction of crime was competent as bearing upon weight of his testimony and his credibility as witness. Phillips v. State, 43 So. 2d 208 (Miss. 1949).

It is competent for state to question defendant in criminal prosecution in regard to previous convictions of crime when accused has taken witness stand in his own behalf. Scarbrough v. State, 204 Miss. 487, 37 So. 2d 748, 1948 Miss. LEXIS 383 (Miss. 1948).

In criminal prosecution, it is not competent for state, in presenting its case in chief, to prove that defendant has been convicted or is guilty of other crimes wholly disconnected with, and having no direct bearing on, case under investigation. Scarbrough v. State, 204 Miss. 487, 37 So. 2d 748, 1948 Miss. LEXIS 383 (Miss. 1948).

Where the defendant on trial for burglary, in answer to a question on direct examination, stated that he had previously been convicted of wilful trespass, it was prejudicial error for the prosecuting attorney to make further inquiries for the purpose of showing that the conviction had followed withdrawal of a plea of guilty to a greater offense, wholly disconnected with the charge on which defendant was being tried. White v. State, 201 Miss. 556, 29 So. 2d 650, 1947 Miss. LEXIS 419 (Miss. 1947).

Under this section [Code 1942, § 1693], if the defendant, in a murder prosecution, offers himself as a witness, then proof of the fact that he has been previously convicted of a crime, but not the extent of the punishment imposed, would be competent to affect his credibility as a witness. Hartfield v. State, 186 Miss. 75, 189 So. 530, 1939 Miss. LEXIS 220 (Miss. 1939).

Admission, on cross-examination, by party jointly indicted with defendant that, in addition to crime for which he and defendant were being tried, there were indictments pending against him for other offenses, held reversible error where he had not been convicted of those offenses. Graham v. State, 179 So. 340 (Miss. 1938).

Where defendant on cross-examination admitted previous conviction of grand larceny, fact that jurors were informed by further cross-examination that defendant had served penitentiary term held not to warrant reversal. Roney v. State, 167 Miss. 532, 142 So. 475, 1932 Miss. LEXIS 196 (Miss. 1932).

Statute authorizing examination of witness regarding conviction does not permit details of crime to be shown. Walker v. State, 151 Miss. 862, 119 So. 796, 1929 Miss. LEXIS 248 (Miss. 1929).

Witness may be cross-examined as to any and all convictions of crime affecting credibility. Brown v. State, 96 Miss. 534, 51 So. 273, 1910 Miss. LEXIS 168 (Miss. 1910).

Proper to ask one accused of assault with intent to murder if he had been convicted of crime, but not, if he had been confined in penitentiary for cutting white man’s throat. Dodds v. State, 45 So. 863 (Miss. 1908).

Error to ask witness if he had ever been charged with committing an offense; statute allows only question as to conviction. Starling v. State, 89 Miss. 328, 42 So. 798, 1906 Miss. LEXIS 82 (Miss. 1906); McClelland v. State, 98 Miss. 735, 54 So. 251, 1910 Miss. LEXIS 120 (Miss. 1910).

The examination of witnesses may extend to misdemeanors as well as to infamous crimes. Lewis v. State, 85 Miss. 35, 37 So. 497, 1904 Miss. LEXIS 129 (Miss. 1904).

4. Contradiction and impeachment of witness.

Defendant was properly precluded from giving impeachment testimony about taped conversations in which state witness allegedly said that district attorney’s office was threatening to revoke probation if he did not testify, where defendant did not tell counsel about conversations until after witness had been excused, thus preventing the laying of proper predicate for impeachment testimony, where defendant made no objection to release of witness, and where defense counsel did not reveal existence of tape pursuant to discovery requirements when trial commenced the next day, but waited until defendant’s testimony to try to elicit that information. (Per Smith, Justice, with three Justices concurring). Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

A trial judge properly excluded evidence of a state witness’ refusal to talk to defense counsel prior to trial as irrelevant. The witness’ refusal to talk to the attorney was not indicative of a lack of veracity and was not relevant to credibility. Sayles v. State, 552 So. 2d 1383, 1989 Miss. LEXIS 472 (Miss. 1989).

The manufacture, possession or transportation of untaxed liquor is a crime involving dishonesty or false statement under Rule 609(a)(2), Miss. R. Ev., which permits impeachment of a witness’ testimony by evidence of conviction of such a crime. Johnson v. State, 529 So. 2d 577, 1988 Miss. LEXIS 272 (Miss. 1988).

Trial court improperly limited defendant’s right to testify and to cross-examine and impeach certain witnesses; trial court did not allow defendant to cross-examine co-indictee concerning his interest and bias in case by showing threats co-indictee made against defendant’s other witnesses; defendant also was prevented from questioning co-indictee regarding possible promises of leniency from prosecution in return for his testimony against defendant; trial court also improperly denied defendant opportunity to present witness to impeach co-indictee’s denial of threats against potential witnesses for defendant, on basis that proper predicate had not been laid for impeachment, where co-indictee had been asked if he threatened witness and he denied it; moreover, trial court sustained objections during co-indictee’s questioning which for all practical purposes prevented laying of full and proper predicate. Hill v. State, 512 So. 2d 883, 1987 Miss. LEXIS 2782 (Miss. 1987).

Where defendant did not testify at the guilt stage of his murder trial, evidence that defendant was on parole was not admissible for the purpose of impeaching his testimony under this section. Gray v. State, 351 So. 2d 1342, 1977 Miss. LEXIS 1951 (Miss. 1977).

Plea of guilty being tantamount to a conviction for purposes of this statute, the credibility as a witness of defendant in a burglary prosecution could properly be impeached by evidence of his prior plea of guilty in an out of state prosecution for forgery, even though sentence had not been imposed and final judgment had not been entered on that plea. Bridges v. State, 336 So. 2d 1309, 1976 Miss. LEXIS 1554 (Miss. 1976).

In seeking to impeach a prosecution witness, defense counsel could not question the witness as to mere charges of the commission of offenses, especially where such charges were pending and the witness’s testimony might incriminate him. Further, the witness could not be asked nor proof made of the details of an alleged crime said to have been committed by the witness sought to be impeached. Haralson v. State, 314 So. 2d 722, 1975 Miss. LEXIS 1682 (Miss. 1975).

If a defendant denies a former conviction he may be contradicted by the record of such conviction and such evidence goes only to the credibility of the witness. Berry v. State, 212 Miss. 164, 54 So. 2d 222, 1951 Miss. LEXIS 438 (Miss. 1951).

Where witness is sought to be impeached on ground of conviction, details of crime are not admissible, and he cannot be examined as to such details; only fact of conviction is admissible; in seeking to impeach credibility of accused it was error to ask if he had not been convicted of beating wife and child and to contradict denial. Powers v. State, 156 Miss. 316, 126 So. 12, 1930 Miss. LEXIS 173 (Miss. 1930).

Permitting state in murder prosecution to cross-examine husband of deceased as to statements relative to getting divorce and to contradict such testimony in rebuttal held proper. Hardy v. State, 143 Miss. 352, 108 So. 727, 1926 Miss. LEXIS 272 (Miss. 1926).

Person jointly indicted with accused, not on trial but testifying for accused, may be impeached by contradictory statement made by him as to commission of offense. Pickett v. State, 139 Miss. 529, 104 So. 358, 1925 Miss. LEXIS 174 (Miss. 1925).

5. Evidence.

Defendant could present evidence that police officers were biased and prejudiced against him during his direct testimony in armed robbery prosecution, and was not required to show bias during cross-examination of the officers. McLemore v. State, 669 So. 2d 19, 1996 Miss. LEXIS 9 (Miss. 1996).

Before evidence may be received under the other bad acts exception to the primary relevancy rule, the proponent must articulate precisely the evidential hypothesis by which the consequential act may be inferred from the proffered evidence. Houston v. State, 531 So. 2d 598, 1988 Miss. LEXIS 426 (Miss. 1988).

The certified abstract of a court record showing a defendant’s prior conviction was competent evidence of such conviction and was not rendered incompetent by the fact that the abstract included the punishment inflicted for the prior offense. Lovelace v. State, 410 So. 2d 876, 1982 Miss. LEXIS 1875 (Miss. 1982).

In a robbery prosecution against a daughter, who had testified that she had grabbed her mother’s metal box containing money and a pistol and fled to prevent the mother from obtaining the pistol, evidence that on several occasions the mother had shot at members of the accused’s family should have been permitted to go to the jury as tending to show the bias and prejudice of the mother, who was a prosecuting witness, even though it was not part of the res gestae. Hardin v. State, 232 Miss. 470, 99 So. 2d 600, 1958 Miss. LEXIS 294 (Miss. 1958).

Cross examination by district attorney in robbery prosecution of defendant’s witness as to number of times sheriff raided his place and concerning his sales of whisky was incompetent but not reversible error. Ivey v. State, 206 Miss. 734, 40 So. 2d 609, 1949 Miss. LEXIS 297 (Miss. 1949).

Conviction of crime admissible to impeach veracity of witness only after he has denied conviction. Alabama & V. R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, 1913 Miss. LEXIS 146 (Miss. 1913), overruled, New Orleans & G. N. R. Co. v. Walden, 160 Miss. 102, 133 So. 241, 1931 Miss. LEXIS 158 (Miss. 1931).

It is proper under this section [Code 1942, § 1693] to ask a witness on cross-examination if he had not confessed to having been a convict in the penitentiary, and his answer may be contradicted. The record of such conviction is only necessary where the object is to show conviction, but if the witness is asked for the purpose of discrediting him the question is competent without the production of the record. Jackson v. State, 75 Miss. 145, 21 So. 707, 1897 Miss. LEXIS 92 (Miss. 1897).

The record of a conviction of a misdemeanor is admissible. Helm v. State, 67 Miss. 562, 7 So. 487, 1890 Miss. LEXIS 102 (Miss. 1890).

6. Instructions.

Instruction that interest of witness might be considered not error, though defendant’s wife was his only witness. Jones v. State, 130 Miss. 703, 94 So. 851, 1922 Miss. LEXIS 243 (Miss. 1922).

7. Punishment for contempt.

While undue delay in imposition of punishment for contempt will not be tolerated, withholding imposition of punishment on witness found guilty of direct criminal contempt until the day following the conclusion of the trial did not constitute undue delay. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

8. Judgment.

A judgment which simply stated that witness had been found in contempt 27 times for refusing to answer questions, and had been punished for 6 acts, but did not specify the 6 acts, was not sufficiently clear and explicit to warrant Supreme Court to affirm, annul, reverse, or modify it. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

While contempt proceeding is summary and the judge may act upon that which he personally knows is direct contempt, the judgment of conviction should contain material facts constituting the contempt, and, in rendering the judgment and making up the record, the causes for contempt should be separately stated so as to constitute res judicata. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

Editor’s Notes —

Former §13-1-15 provided that a person shall not be incompetent as a witness because of his religious belief or want of it.

Editor’s Notes —

Section 13-1-16 provided for the appointment of interpreters for deaf parties and witnesses and for the payment of fees. Sections 13-1-301 et seq. now make provisions for such appointments.

Editor’s Notes —

Former §13-1-17 provided for the affirmation of witnesses.

RESEARCH REFERENCES

ALR.

Refusal to answer questions before state grand jury as direct contempt of court. 69 A.L.R.3d 501.

Impeachment of defense witness in criminal case by showing witness’ prior silence or failure or refusal to testify. 20 A.L.R.4th 245.

Right of independent expert to refuse to testify as to expert opinion. Par Indus. v. Target Container Co., 708 So. 2d 44, 1998 Miss. LEXIS 41 (Miss. 1998).

CJS.

98 C.J.S., Witnesses §§ 98-101, 106-118.

Cross References —

Hospital records not generally constituting public records, see §41-9-67.

Confidentiality and inspection of hospital records of civilly committed patients, see §41-21-97.

What constitutes the practice of medicine, see §73-25-33.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Additional provisions relative to privileged communications, see Miss. R. Evid. 501-505.

OPINIONS OF THE ATTORNEY GENERAL

Medical information contained in “run reports” from City EMS units which contain name of person treated, address of response, physical data, summary of any medical treatment or other action taken in response to run and other pertinent information, is confidential; other information in reports is public. Lawrence Oct. 6, 1993, A.G. Op. #93-0592.

Generally, most medical records in a mental commitment file in the office of the Chancery Clerk will fall under one or more of the exemptions to the Public Records Act; exempt records should not be released or kept open to the public absent a court order or authorized consent. McGee, Dec. 2, 2002, A.G. Op. #02-0543.

Whether county emergency medical service records, including health conditions of persons injured in an accident, constituted exempt “hospital records” under Section 41-9-68 or were otherwise privileged under Section 13-1-21 is a factual question. Lamar, Dec. 16, 2005, A.G. Op. 05-0595.

RESEARCH REFERENCES

ALR.

Right of one against whom testimony is offered to invoke privilege of communication between others. 2 A.L.R.2d 645.

Inferences arising from refusal of witness other than accused to answer question on the ground that answer would tend to incriminate him. 24 A.L.R.2d 895.

Construction and effect of statute removing or modifying, in personal injury actions, patient’s privilege against disclosure by physician. 25 A.L.R.2d 1429.

Privileged nature of hospital record relating to intoxication or sobriety of patient. 38 A.L.R.2d 778.

Privilege of communication by or to nurse or attendant. 47 A.L.R.2d 742.

Party’s waiver of privilege as to communications with counsel by taking stand and testifying. 51 A.L.R.2d 521.

Pleading or raising defense of privilege in defamation action. 51 A.L.R.2d 552.

Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question. 64 A.L.R.2d 1056.

Who may waive privilege of confidential communication to physician by person since deceased. 97 A.L.R.2d 393.

Testimony as to communications or observations as to mental condition of patient treated for other condition. 100 A.L.R.2d 648.

Waiver of privilege as regards one physician as a waiver as to other physicians. 5 A.L.R.3d 1244.

Applicability in criminal proceedings of privilege as to communications between physician and patient. 7 A.L.R.3d 1458.

Physician’s tort liability, apart from defamation, for unauthorized disclosure of confidential information about patient. 20 A.L.R.3d 1109.

Admissibility of physician’s testimony as to patient’s statements or declarations, other than res gestae, during medical examination. 37 A.L.R.3d 778.

Privilege, in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient. 44 A.L.R.3d 24.

Discovery, in medical malpractice action, of names of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff. 74 A.L.R.3d 1055.

Physician-patient privilege as applied to physician’s testimony concerning wound required to be reported to public authority. 85 A.L.R.3d 1196.

Physician-patient privilege as extending to patient’s medical or hospital records. 10 A.L.R.4th 552.

What constitutes physician-patient relationship for malpractice purposes. 17 A.L.R.4th 132.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor. 43 A.L.R.4th 395.

Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect. 44 A.L.R.4th 649.

Physician’s tort liability for unauthorized disclosure of confidential information about patient. 48 A.L.R.4th 668.

Insured-insurer communications as privileged. 55 A.L.R.4th 336.

Waiver of evidentiary privilege by inadvertent disclosure – state law. 51 A.L.R.5th 603.

Construction and Application of Fiduciary Duty Exception to Attorney-Client Privilege. 47 A.L.R.6th 255.

Situations in which federal courts are governed by state law of privilege under Rule 501 of the Federal Rules of Evidence.48 A.L.R. Fed. 259.

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 416 et seq, 449.

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons and Other Healers, Form 353 (complaint, petition, or declaration, plaintiff improperly diagnosed as suffering from dangerous communicable disease, plaintiff quarantined in hospital until condition correctly diagnosed).

17 Am. Jur. Proof of Facts, Privileged Communications between Physician and Patient, § 17 (proof that physician-patient relation existed between accused and examining physician).

17 Am. Jur. Proof of Facts, Privileged Communications between Physician and Patient, § 18 (proof that no physician-patient relation existed between accused and examining physician).

17 Am. Jur. Proof of Facts, Privileged Communications between Physician and Patient, § 19 (use of nonprivileged information to establish physical condition of patient in civil action).

45 Am. Jur. Proof of Facts 2d 595, Protected Communication Between Physician And Patient.

46 Am. Jur. Proof of Facts 2d 373, Existence of Physician and Patient Relationship.

2 Am. Jur. Trials, Selecting and Preparing Expert Witnesses, § 57.

32 Am. Jur. Trials 105, Unauthorized Disclosure of Confidential Patient Information.

CJS.

98 C.J.S., Witnesses §§ 411 et seq., 468, 469, 472, 477, 485 et seq.

Law Reviews.

1982 Mississippi Supreme Court Review: Torts. 53 Miss. L. J. 167, March 1983.

Whitfield, Mississippi medical privilege: blessing or curse? 12 Miss. C. L. Rev. 461, Spring, 1992.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss. L. J. 547, Winter, 1997.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 17:1, 17:11, 19:10.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Persons subject to privilege.

4. —Chiropractor.

5. —Dentist.

6. —Nurse.

7. Persons who may assert privilege.

8. Matters subject to privilege.

9. —X-rays.

10. —Hospital and other records.

11. Waiver.

12. —Waiver by contract.

13. —Persons who may waive.

14. Failure to call physician as subject of inference.

1. Validity.

This section is constitutional. French Drug Co. v. Jones, 367 So. 2d 431, 1978 Miss. LEXIS 2444 (Miss. 1978).

Privileged communication statute is mere rule of evidence, and so not unconstitutional, though preventing proof by defendant on main issue. Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287, 1928 Miss. LEXIS 106 (Miss. 1928).

2. Construction and application generally.

Only privilege established by the clear and unambiguous language of Miss. Code Ann. §13-1-21 is for communications made to a physician by a patient under his or her charge or by one seeking professional advice; thus, if a court is to be faithful to the statute, it must limit what is privileged thereunder to communications made to a physician by a patient. Franklin Collection Serv. v. Kyle, 955 So. 2d 284, 2007 Miss. LEXIS 234 (Miss. 2007).

In a collection agency’s suit brought on an open account against a patient, the patient did not have a counterclaim for breach of a physician-patient privilege when the collection agency attached certain information to its complaint because Miss. Code Ann. §13-1-21 was too narrow to apply, and there was no privilege for this type of information under the broader Miss. R. Evid. 503. Franklin Collection Serv. v. Kyle, 2007 Miss. LEXIS 11 (Miss. Jan. 11, 2007), sub. op., op. withdrawn, 955 So. 2d 284, 2007 Miss. LEXIS 234 (Miss. 2007).

Although the urinalysis evidence came under the Miss. Code Ann. §3-1-21(1) physician-patient privilege, defendant could not rely on the privilege to exclude the incriminating evidence of cocaine in defendant’s system where the procedure allegedly failed to comply with Miss. Code Ann. §63-11-19. Jones v. State, 858 So. 2d 139, 2003 Miss. LEXIS 579 (Miss. 2003).

Defendant’s conviction for vehicular homicide was affirmed where the appellate court found that a hospital employee’s analysis of his urine that showed defendant had cocaine in his system at the time of the fatal accident was properly admitted; to ensure the proper administration of justice, the analysis of defendant’s urine specimen was removed from the protection of the physician-patient privilege. Jones v. State, 2002 Miss. App. LEXIS 185 (Miss. Ct. App. Apr. 9, 2002).

Where newborn was accidently taken by hospital staff to the wrong mother to be breast fed, the unidentified patient responsible for breast feeding newborn was a fact witness to the alleged negligence of the hospital; therefore, her identity had to be revealed and her medical records may be inspected by the judge in camera to determine whether the health of the newborn was at risk. Baptist Mem'l Hosp.-Union County v. Johnson, 754 So. 2d 1165, 2000 Miss. LEXIS 5 (Miss. 2000).

Under no circumstances should a court order require plaintiff in medical malpractice or other action to release medical information unconditionally. Scott by & Through Scott v. Flynt, 704 So. 2d 998, 1996 Miss. LEXIS 147 (Miss. 1996).

In cases involving personal injuries, where a plaintiff has, during pretrial discovery, expressly refused to waive the medical privilege provided for under §13-1-21, the defendant is not entitled to an instruction stating that the fact that the treating physicians were not called as witnesses by the plaintiff would justify an inference that their testimony would have been unfavorable, whether or not defendant subpoenaed them. Jackson v. Brumfield, 458 So. 2d 736, 1984 Miss. LEXIS 1975 (Miss. 1984).

In a prosecution for manslaughter by culpable negligence resulting from an automobile collision, defendant was properly precluded from arguing that the prosecution had failed to prove the results of a blood test for alcohol, since the State in rebuttal could not reply to the defendant’s argument by discussing material protected by §13-1-21, the physician-patient privilege, which defendant had exercised. Alford v. State, 433 So. 2d 940, 1983 Miss. LEXIS 2631 (Miss. 1983).

The testimony of two doctors as to their court-ordered examinations did not violate the physician-patient privilege statute which declared as privileged only those communications made to a physician by a patient under his charge or by one seeking professional advice. United States v. Harper, 450 F.2d 1032, 1971 U.S. App. LEXIS 7450 (5th Cir. Miss. 1971).

The purpose of the physician-patient privilege is to protect the patient by encouraging full and confidential disclosure to his physician of all information, however embarrassing, which might aid the physician in diagnosis and treatment. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

In Mississippi the physician-patient privilege arises only when the patient consults the physician in his professional capacity and generally for the purpose of treatment, and it would not apply to a physician appointed by a state court. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

To be privileged, physician-patient communications must be in a professional context and generally must be with the purpose of treatment. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

Under state law, the examining doctor’s testimony is not subject to medical privilege, and by federal standards Rule 35 overrides any conflicting state-created rule, procedural, or substantive, which would bar the testimony of an examining physician appointed by order of federal court. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

The physician-patient privilege is substantive for diversity purposes, requiring the application of state substantive law in diversity cases. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

Code 1942, § 6998-08 does not prohibit the invocation of the patient-physician communication privilege in proceedings before the Mississippi workmen’s compensation commission. Cooper's, Inc. of Mississippi v. Long, 224 So. 2d 866, 1969 Miss. LEXIS 1301 (Miss. 1969).

Under this section [Code 1942, § 1697], a decedent’s physician is properly permitted to testify for the proponent of his will. Grant v. Norwood, 248 Miss. 740, 161 So. 2d 189, 1964 Miss. LEXIS 299 (Miss. 1964).

Error in permitting a physician to testify to a privileged communication held harmless, in view of the patient’s testimony as to what the doctor prescribed. Pullin v. Nabors, 240 Miss. 864, 128 So. 2d 117, 1961 Miss. LEXIS 518 (Miss. 1961).

A doctor may not be required to testify as to matters learned in treating a patient, where the patient’s widow objects. Donaldson v. Life & Casualty Ins. Co., 239 Miss. 635, 124 So. 2d 701, 1960 Miss. LEXIS 333 (Miss. 1960).

The privileged communications statute is no prohibition against the offering of a physician as a witness since the patient may or may not waive the statute. Gulf, M. & O. R. Co. v. Smith, 210 Miss. 768, 50 So. 2d 898, 1951 Miss. LEXIS 312 (Miss. 1951).

The purpose of the privileged communication statute is to protect confidential matters growing out of the relation of physician and his assistants and patient. Life & Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47, 1937 Miss. LEXIS 112 (Miss. 1937).

The privileged communication statute and statute permitting introduction in evidence of vital statistics records must be construed together. Life & Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47, 1937 Miss. LEXIS 112 (Miss. 1937).

Statute declaring as privileged communications made to physician by patient or one seeking professional advice must be limited to its language and clear purpose, and should not be extended by construction. Gulf, M. & N. R. Co. v. Willis, 171 Miss. 739, 158 So. 551 (Miss. 1935).

Privileged communication statute is mere rule of evidence. Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287, 1928 Miss. LEXIS 106 (Miss. 1928).

State privileged communication statute held mere rule of evidence, applicable in action under Federal Employer’s Liability Act. New Orleans & N. E. R. Co. v. Jackson, 145 Miss. 702, 110 So. 586, 1926 Miss. LEXIS 24 (Miss. 1926).

Physician cannot disclose patient’s communication except at patient’s instance. Hunter v. Hunter, 127 Miss. 683, 90 So. 440, 1921 Miss. LEXIS 271 (Miss. 1921).

3. Persons subject to privilege.

Evidence rule creating psychotherapist-patient privilege defines “psychotherapist” not only by those persons who are licensed, but also by subjective impressions of patient. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

Patient-psychotherapist relationship and privilege existed between defendant and witness, even though witness was not licensed psychologist, where defendant believed that witness was psychiatrist or psychologist and that anything he told witness was confidential. (Per Pittman, J., with two Justices concurring, two Justices concurring in the result only, and one Justice concurring in part.) Kolberg v. State, 704 So. 2d 1307, 1997 Miss. LEXIS 697 (Miss. 1997).

In a proceeding by a wife seeking a divorce from her husband on the basis of excessive drug use, the physician-patient privilege of §13-1-21 did not extend to pharmacist-client communications, and thus, testimony of the husband’s pharmacist was properly introduced. Ladner v. Ladner, 436 So. 2d 1366, 1983 Miss. LEXIS 2808 (Miss. 1983).

In personal injury action, physician who was partner of physician who treated plaintiff held incompetent to testify concerning plaintiff’s condition. Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, 1932 Miss. LEXIS 214 (Miss. 1932).

4. —Chiropractor.

Chiropractors are not within privilege of physicians. S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650, 1930 Miss. LEXIS 212 (Miss. 1930).

5. —Dentist.

Offer of proof of what was expected to be proved by dentist held insufficient to justify reversal of judgment for patient suing railroad for injuries on ground that dentist’s testimony was not privileged, where record did not disclose that dentist’s testimony would have contradicted that given by patient or would have mitigated damages awarded by jury. Gulf, M. & N. R. Co. v. Willis, 171 Miss. 739, 158 So. 551 (Miss. 1935).

Dentist is not a “physician” within statute declaring as privileged all communications made to a physician by a patient or by one seeking professional advice. Gulf, M. & N. R. Co. v. Willis, 171 Miss. 739, 158 So. 551 (Miss. 1935).

6. —Nurse.

In action on life policy excluding liability if insured was pregnant at date of policy and death resulted from such pregnancy, student nurse in hospital who prepared room for insured’s confinement, and who remained through the confinement, could testify regarding matters observed without violating the privileged communication statute. Life & Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47, 1937 Miss. LEXIS 112 (Miss. 1937).

Nurse employed by physician who treated plaintiff for injury would be competent as witness as to all matters learned when not assisting physician. Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, 1932 Miss. LEXIS 214 (Miss. 1932).

Nurse who was employee of physician who treated plaintiff for injury to leg held incompetent as witness. Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, 1932 Miss. LEXIS 214 (Miss. 1932).

Statute, making communications to physician privileged, held not to exclude testimony of nurses employed in hospitals and present when communications were made. Goodman v. Lang, 158 Miss. 204, 130 So. 50, 1930 Miss. LEXIS 16 (Miss. 1930).

7. Persons who may assert privilege.

Testimony of a physician that the defendant informed him that he had a girl “in trouble” and asked whether the doctor could give her something to bring about menstruation, was not privileged, where the doctor specifically declined to have anything to do with the matter and never saw or had any communication with the prosecutrix, the relation of physician and patient never existing between any of the persons involved. Smith v. State, 188 Miss. 339, 194 So. 922, 1940 Miss. LEXIS 34 (Miss. 1940).

The privilege conferred by the statute regarding communications between physician and patient is for the benefit of the patient alone, so that the testimony of a physician offered by the state in a criminal case to show that the wound suffered by a bystander was caused by the pistol of the accused, even if it was error to admit such testimony over the objection of such bystander, could not be complained of by the accused. Vance v. State, 182 Miss. 840, 183 So. 280, 1938 Miss. LEXIS 200 (Miss. 1938).

8. Matters subject to privilege.

Where an employer noticed that a return to work date on a medical leave form appeared to have been altered and asked the employee’s health care provider to provide another copy of the form, which revealed the employee’s alteration, the health care provider did not violate the physician-patient privilege under Miss. Code Ann. §13-1-21 because the privilege only applied to information provided by a patient to his or her doctor, and the employee’s return to work date did not qualify as such information. Thornton v. Statcare, PLLC, 988 So. 2d 387, 2008 Miss. App. LEXIS 416 (Miss. Ct. App. 2008).

A physician’s knowledge of a patient’s deafness, obtained while treating him, is privileged. New Orleans & N. R. Co. v. Shows, 240 Miss. 604, 128 So. 2d 381, 1961 Miss. LEXIS 490 (Miss. 1961).

In matter involving merely conventional relation of physician and patient, as distinguished from matter in which it is necessary for physician to examine into case and apply his skill and knowledge to form an opinion, or to make preliminary preparation for purpose of qualifying himself to give expert testimony, physician is ordinarily subject to testify under subpoena as any other witness. Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So. 2d 405, 1950 Miss. LEXIS 246 (Miss. 1950).

This section [Code 1942, § 1697] has no application to a situation where one claiming disability benefits under a life insurance policy voluntarily presented himself to a physician employed by the insurance company solely for the purpose of an examination, and not for professional advice or treatment, so as to enable such physician to report the facts he might find to the insurance company; and under such circumstances, the privilege not only did not arise but was also waived. Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 183 Miss. 860, 184 So. 426, 1938 Miss. LEXIS 300 (Miss. 1938).

Where defendant, charged with assault and battery with intent to kill, testified that she acted in self-defense, having been assaulted by another who beat defendant over head, inflicting wounds treated by physician, physician’s testimony that he had not treated a wound on defendant’s head held admissible. Sproles v. State, 176 Miss. 810, 170 So. 293, 1936 Miss. LEXIS 171 (Miss. 1936).

In murder prosecution, admitting testimony of physician, who attended deceased, with reference to nature and effects of wound found upon body of deceased, held not reversible error. Maddox v. State, 173 Miss. 799, 163 So. 449, 1935 Miss. LEXIS 258 (Miss. 1935).

In action for death, communications made by decedent to his physician about a year before his death held privileged. Illinois C. R. Co. v. Humphries, 170 Miss. 840, 155 So. 421, 1934 Miss. LEXIS 174 (Miss. 1934).

Physician who treated plaintiff for former injury to leg held incompetent as witness, where such physician could not segregate knowledge acquired as physician from that learned from contact and association. Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, 1932 Miss. LEXIS 214 (Miss. 1932).

Nurse employed by physician who treated plaintiff for injury would be competent as witness as to all matters learned when not assisting physician. Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483, 1932 Miss. LEXIS 214 (Miss. 1932).

Where physician investigates by direction of court or prosecuting attorney to ascertain condition of person for purposes of trial, statutory privilege does not arise. Norwood v. State, 158 Miss. 550, 130 So. 733, 1930 Miss. LEXIS 82 (Miss. 1930).

Where person is examined by physician at instance or with approval of officers for purpose of law enforcement, and person examined knows, or facts reasonably give knowledge, that examination is for such purpose and no wrongful means are used, statute relating to privilege is not available. Norwood v. State, 158 Miss. 550, 130 So. 733, 1930 Miss. LEXIS 82 (Miss. 1930).

Testimony of physician treating insured as to nature and character of disease is inadmissible. Provident Life & Acci. Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180, 1929 Miss. LEXIS 3 (Miss. 1929).

What physician knows about patient by physical examination held privileged communication. Yazoo & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287, 1928 Miss. LEXIS 106 (Miss. 1928).

Testimony of physician treating insured, together with hospital records, held properly excluded in beneficiary’s action on policy after insured’s death. Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555, 1928 Miss. LEXIS 41 (Miss. 1928).

In trial of unlawful killing admitting testimony of physician, who attended deceased, with reference to condition of his wound, held not reversible error. Davenport v. State, 143 Miss. 121, 108 So. 433, 1926 Miss. LEXIS 250 (Miss. 1926).

Physician cannot disclose deceased patient’s communication. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

Physician not competent to testify as to the facts and information received by him in professional capacity; physician competent to testify as to knowledge concerning mental condition derived from social or business relation; trial judge may determine competency of physician’s knowledge derived partly from his relation as physician and partly from social and business relations. Dabbs v. Richardson, 137 Miss. 789, 102 So. 769, 1925 Miss. LEXIS 20 (Miss. 1925).

Physician held not precluded from giving non-expert testimony as to facts and circumstances affecting testamentary capacity of patient, based on conversation derived from business and social relations. Estes v. McGehee, 133 Miss. 174, 97 So. 530, 1923 Miss. LEXIS 122 (Miss. 1923).

In action against railway company for wrongful death, erroneous to permit defendant to prove by decedent’s physician that injuries sustained were not cause of death. Hamel v. Southern R. Co., 113 Miss. 344, 74 So. 276, 1917 Miss. LEXIS 108 (Miss. 1917).

Word “communication” includes matters ascertained by railroad surgeon in examination of persons injured in wreck; communications need not be in words. Yazoo & M. V. R. Co. v. Messina, 109 Miss. 143, 67 So. 963, 1915 Miss. LEXIS 127 (Miss. 1915), rev'd, 240 U.S. 395, 36 S. Ct. 368, 60 L. Ed. 709, 1916 U.S. LEXIS 1461 (U.S. 1916).

9. —X-rays.

Privileged communication statute held not to prevent physical and X-ray examination of parts of plaintiff’s body which were alleged to have been injured and which were voluntarily exhibited to jury for inspection and examination. Dixie Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686, 1936 Miss. LEXIS 254 (Miss. 1936).

10. —Hospital and other records.

Without the results of defendant’s urine specimen and test, which specimen was taken and which test was performed by a hospital according to its policy, the State would have been unable to prove that defendant was under the influence of cocaine when defendant collided with the victim’s automobile; thus, to ensure the proper administration of justice, the medical records regarding the analysis of defendant’s urine specimen had to be removed from the protection of the physician-patient privilege under Miss. Code Ann. §13-1-21(1) and Miss. R. Evid. 503(b) and the trial court did not err in admitting this evidence. Jones v. State, 881 So. 2d 209, 2002 Miss. App. LEXIS 869 (Miss. Ct. App. 2002), aff'd, 2003 Miss. LEXIS 588 (Miss. Oct. 30, 2003).

In light of the highly personal nature of a patient’s medical and hospital records and of the problems that could result from their improper release, a hospital properly refused to reproduce and release voluminous patient records when it received only a form request and offer to pay for “reasonable access”; a reasonable response would be to allow access if representatives of the requesting facility appeared personally at the hospital, checked the records, and indicated those for which they would be willing to pay for copies. Young v. Madison General Hospital, 337 So. 2d 931, 1976 Miss. LEXIS 1600 (Miss. 1976).

The privileged communications statute does not preclude testimony from and concerning a patient’s hospital records, by doctors who had never seen or examined the patient. Reynolds v. West, 237 Miss. 613, 115 So. 2d 742, 1959 Miss. LEXIS 511 (Miss. 1959).

In action on life policy excluding liability if insured was pregnant at date of policy and death resulted from such pregnancy, certified copies of vital statistics, records, consisting of insured’s attending physician’s reports to the department of vital statistics showing required facts with reference to death of the insured and birth of child, were admissible, since, by adoption of statute permitting introduction of records of vital statistics, legislature intended to except from operation of the privileged communications statute the vital statistics records. Life & Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47, 1937 Miss. LEXIS 112 (Miss. 1937).

In homicide prosecution, exclusion of expert testimony of insane hospital physicians as to nature and character of mental disease with which deceased was afflicted held error, where knowledge of matters testified to was acquired by perusal of hospital records and not by a personal examination or by communications from deceased. Motley v. State, 174 Miss. 568, 165 So. 296, 1936 Miss. LEXIS 197 (Miss. 1936).

In homicide prosecution exclusion as privileged, of testimony of insane hospital physicians as to knowledge of deceased’s insanity acquired from perusal of hospital records, held error, where statute required that records of examinations of patients be kept. Motley v. State, 174 Miss. 568, 165 So. 296, 1936 Miss. LEXIS 197 (Miss. 1936).

Testimony of physician treating insured, together with hospital records, held properly excluded in beneficiary’s action on policy after insured’s death. Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555, 1928 Miss. LEXIS 41 (Miss. 1928).

11. Waiver.

For purposes of determining scope of a waiver of medical privilege, relevancy of particular medical information to condition which plaintiff has placed in issue by filing medical malpractice or other type of action is to be determined at judicial relevancy hearing if that determination cannot be worked out on amicable terms between opposing counsel. Scott by & Through Scott v. Flynt, 704 So. 2d 998, 1996 Miss. LEXIS 147 (Miss. 1996).

In a personal injury action arising from a motor vehicle accident, the plaintiff, by filing suit and submitting evidence on his injuries, waived the physician-patient privilege only to the extent of those injuries and expenses for treatment. Thus, information given to the plaintiff’s treating physician concerning the cause of the accident was privileged. Additionally, the plaintiff did not waive the privilege by answering questions on cross-examination and denying that he had made certain statements regarding the cause of the accident to the treating physician. The testimony of a plaintiff on cross-examination as to communications made to his or her physician is not voluntary so as to constitute a waiver of the physician-patient privilege. Sessums ex rel. Sessums v. McFall, 551 So. 2d 178, 1989 Miss. LEXIS 367 (Miss. 1989).

Where a patient has been treated or examined by different physicians at different times for the same ailment, and the patient permits one of his physicians to testify about his physical condition, he does not waive the right to assert his statutory privilege of confidential communication as to the other attending physicians. Hill v. Stewart, 209 So. 2d 809, 1968 Miss. LEXIS 1470 (Miss. 1968), overruled in part, Hall v. Hilbun, 466 So. 2d 856, 1985 Miss. LEXIS 1935 (Miss. 1985).

Although the testimony of one of the physicians who had treated the decedent during his terminal illness was introduced in evidence in a malpractice action, the depositions of other physicians who examined and diagnosed decedent’s illness and treated him according to their learning cannot be taken or introduced into evidence without the intentional or express waiver by the heirs of the deceased. Hill v. Stewart, 209 So. 2d 809, 1968 Miss. LEXIS 1470 (Miss. 1968), overruled in part, Hall v. Hilbun, 466 So. 2d 856, 1985 Miss. LEXIS 1935 (Miss. 1985).

The waiver of the physician-patient privilege as to one of a party’s physicians does not operate as a waiver of the privilege as to any other physicians. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

When a party to a law suit takes the stand and voluntarily testifies as to his injuries, their treatment by a physician, and what he and his physician said about them, he waives his privilege. Hardy v. Riser, 309 F. Supp. 1234, 1970 U.S. Dist. LEXIS 12906 (N.D. Miss. 1970).

Where a patient voluntarily goes into detail regarding the nature of her injuries and either testifies as to what a particular physician did or said while in attendance, or relates what she communicated to the physician, the privilege is waived and the adverse party may examine the physician. Dennis v. Prisock, 254 Miss. 574, 181 So. 2d 125, 1965 Miss. LEXIS 967 (Miss. 1965).

Plaintiff patient waives his rights to claim privileged communications under the provisions of this section [Code 1942, § 1697] when plaintiff makes effort to induce defendant to produce his doctor or to have defendant’s doctor testify concerning injuries received by plaintiff in defendant’s employ, but defendant is not required to accept or act upon such waiver. Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So. 2d 405, 1950 Miss. LEXIS 246 (Miss. 1950).

To effectively constitute a waiver of a physician’s testimony, the consent must make reasonably and readily available both the physician’s testimony and physical presence; this is not done by consent at trial time when the physician is known to be out of town. Gatlin v. Allen, 203 Miss. 135, 33 So. 2d 304, 1948 Miss. LEXIS 240 (Miss. 1948).

Where plaintiff’s expressed willingness, on examination in action for personal injury, for any of the doctors who examined her to testify, constituted a waiver of her privilege under this section [Code 1942, § 1697], and such offer was made before the taking of testimony in the case had reached the halfway mark, and there was no showing that a specific physician, who had treated her, was not reasonably available and that his attendance could not have been procured without unreasonable delay or discomfiture to the court, an instruction that if said doctor was available as a witness in her behalf and she failed to introduce him as such witness, the presumption would be that his testimony would have been adverse to the plaintiff, was erroneous. Clary v. Breyer, 194 Miss. 612, 13 So. 2d 633, 1943 Miss. LEXIS 106 (Miss. 1943).

This section [Code 1942, § 1697] has no application to a situation where one claiming disability benefits under a life insurance policy voluntarily presented himself to a physician employed by the insurance company solely for the purpose of an examination, and not for professional advice or treatment, so as to enable such physician to report the facts he might find to the insurance company; and under such circumstances, the privilege not only did not arise but was also waived. Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 183 Miss. 860, 184 So. 426, 1938 Miss. LEXIS 300 (Miss. 1938).

Privileged communication statute held not to prevent physical and X-ray examination of parts of plaintiff’s body which were alleged to have been injured and which were voluntarily exhibited to jury for inspection and examination. Dixie Greyhound Lines, Inc. v. Matthews, 177 Miss. 103, 170 So. 686, 1936 Miss. LEXIS 254 (Miss. 1936).

Plaintiff’s testifying on cross-examination that he was willing for physician to testify did not constitute waiver of right to claim privilege. Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479, 1930 Miss. LEXIS 55 (Miss. 1930).

Testimony of plaintiff on cross-examination regarding communications made to physician is not “voluntary” in sense constituting waiver of privilege. Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479, 1930 Miss. LEXIS 55 (Miss. 1930).

Testimony of physician attending patient not admissible unless consented to by patient; privilege not waived by placing other physicians on the witness stand. Davis v. Elzey, 126 Miss. 789, 88 So. 630, 1921 Miss. LEXIS 28 (Miss. 1921).

Privilege respecting testimony of physician not waived by calling other physicians; testimony should not be received in absence of jury. United States Fidelity & Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115, 1920 Miss. LEXIS 546 (Miss. 1920).

Error in permitting privileged testimony by physician in behalf of defendant not cured by plaintiff introducing another physician to rebut such testimony. Hamel v. Southern R. Co., 113 Miss. 344, 74 So. 276, 1917 Miss. LEXIS 108 (Miss. 1917).

12. —Waiver by contract.

Blood alcohol test administered as part of medical treatment is admissible in civil action where driver from whom blood is taken has made contractual waiver of physician-patient privilege. Edwards v. Ellis, 478 So. 2d 282, 1985 Miss. LEXIS 2262 (Miss. 1985).

Under Mississippi law, the physician-patient privilege can be waived by a contractual provision contained in an application for life insurance. Leach v. Millers Life Ins. Co., 400 F.2d 179, 1968 U.S. App. LEXIS 5523 (5th Cir. Miss. 1968).

The benefits of the privileged communication statute may be waived by contract before trial. Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914, 1938 Miss. LEXIS 51 (Miss. 1938).

Testimony of physician who treated employee immediately after accident held admissible, over employee’s objection, where employee had executed contract waiving benefits of privileged communications statute. Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914, 1938 Miss. LEXIS 51 (Miss. 1938).

In action on life policy, testimony of physicians who had treated insured held admissible to prove that insured’s physical condition was impaired at time he secured reinstatement of policy in view of clause in policy waiving any provisions of law making such testimony inadmissible. New York Life Ins. Co. v. Burris, 174 Miss. 658, 165 So. 116, 1936 Miss. LEXIS 191 (Miss. 1936).

Patient may waive privilege; provision in insurance policy waiving privilege renders physician’s testimony competent as to health. Sovereign Camp, Woodmen of World v. Farmer, 116 Miss. 626, 77 So. 655, 1917 Miss. LEXIS 352 (Miss. 1917).

13. —Persons who may waive.

Nephew carried out his duty as personal representative by probating the decedent’s 2005 will and thus held the general medical privilege as the decedent’s personal representative under the rule; the statute also authorized the nephew to waive the entire medical privilege as a personal representative and contestant of the 2012 will, and thus the ex parte rule did not operate to bar his attorney from speaking alone with the physician witness. Estate of Lyons v. Lyons, 227 So.3d 910, 2017 Miss. LEXIS 131 (Miss. 2017).

The doctor-patient privilege applies in criminal proceedings, but the privilege may be waived. Accordingly, in a prosecution for manslaughter by culpable negligence, defendant waived the privilege when he called his physician to the stand as his own witness and the result of a blood alcohol test administered by the physician was elicited from the doctor on cross-examination without objection from defendant. Ashley v. State, 423 So. 2d 1311, 1982 Miss. LEXIS 2266 (Miss. 1982).

Where the order appointing a temporary administratrix left part of the assets in the hands of an executor, either the temporary administratrix or the executor could waive the statutory privilege, thereby permitting the physician of the testatrix to give his opinion as to her competency on the date on which a purported will was executed. In re Will of McGough, 222 So. 2d 673, 1969 Miss. LEXIS 1542 (Miss. 1969).

Physician’s privilege against testifying as to facts learned in employment may be waived in criminal case; consent of grandmother in loco parentis held waiver under statute so as to make admissible physician’s testimony as to condition of 12-year-old rape victim. Jenkins v. State, 146 Miss. 339, 111 So. 433, 1927 Miss. LEXIS 183 (Miss. 1927).

Statutory prohibition against disclosure by physician of communications of patient survives patient’s death and cannot be waived by his heirs, executor, or administrator. McCaw v. Turner, 126 Miss. 260, 88 So. 705, 1921 Miss. LEXIS 34 (Miss. 1921).

14. Failure to call physician as subject of inference.

In an action for injuries to plaintiff when automobile in which she was riding was struck from rear, where plaintiff pleaded privilege, the refusal to permit counsel for defendant to examine doctor who treated plaintiff, for the purpose of showing that a doctor was available as a witness, was not an error in view of the instructions that defendant could not compel a doctor to testify, and jury was warranted in inferring that the testimony of the doctor would be unfavorable to the plaintiff if he had been permitted to testify. Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So. 2d 217, 1954 Miss. LEXIS 458 (Miss. 1954).

An instruction would not be proper which stated that failure of the plaintiff to call his physician raised a presumption that the doctor’s testimony would be harmful to the plaintiff’s case. Gatlin v. Allen, 203 Miss. 135, 33 So. 2d 304, 1948 Miss. LEXIS 240 (Miss. 1948).

Where plaintiff’s expressed willingness, on examination in action for personal injury, for any of the doctors who examined her to testify, constituted a waiver of her privilege under this section [Code 1942, § 1697], and such offer was made before the taking of testimony in the case had reached the halfway mark, and there was no showing that a specific physician, who had treated her, was not reasonably available and that his attendance could not have been procured without unreasonable delay or discomfiture to the court, an instruction that if said doctor was available as a witness in her behalf and she failed to introduce him as such witness, the presumption would be that his testimony would have been adverse to the plaintiff, was erroneous. Clary v. Breyer, 194 Miss. 612, 13 So. 2d 633, 1943 Miss. LEXIS 106 (Miss. 1943).

An instruction that the plaintiff’s failure to produce as a witness one of three physicians who had attended him would justify the jury in inferring that the testimony of such physicians would have been unfavorable to the plaintiff, was proper. Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 1940 Miss. LEXIS 205 (Miss. 1940).

Instruction that plaintiff’s failure to use physician, who attended him after injuries sued for, as witness may create presumption that such physician’s testimony would be unfavorable to plaintiff, held not erroneous as abolishing protection of privilege communications statute. Robinson v. Haydel, 177 Miss. 233, 171 So. 7, 1936 Miss. LEXIS 266 (Miss. 1936).

Instruction that jury should not draw unfavorable inferences against defendant because he did not introduce plaintiff’s physician as witness held reversible error as authorizing jury to draw unfavorable inference to plaintiff. Hobson v. McLeod, 165 Miss. 853, 147 So. 778, 1933 Miss. LEXIS 308 (Miss. 1933).

Jury had no right to draw any inference against plaintiff because he failed to offer his physician as witness. Hobson v. McLeod, 165 Miss. 853, 147 So. 778, 1933 Miss. LEXIS 308 (Miss. 1933).

Editor’s Notes —

Laws of 2004, 1st Extraordinary Session, ch. 1, § 20 provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007; the remainder of this act shall take effect and be in force from and after September 1, 2004, and Sections 1 through 7 of this act shall apply to all causes of action filed on or after September 1, 2004.”

Editor’s Notes —

The preamble to Chapter 453 of the Laws of 1976 provides as follows:

“Whereas, the emotional, mental and spiritual health of many of our citizens depends upon the free and confidential access to their clergymen or spiritual advisers; Now, therefore,

“Be it enacted by the Legislature of the State of Mississippi:”

Cross References —

Additional provisions relative to priest-penitent privilege, see Miss. R. Evid. 505.

RESEARCH REFERENCES

ALR.

Right of one against whom testimony is offered to invoke privilege of communications between others. 2 A.L.R.2d 645.

Matters to which the privilege covering communications to clergyman or spiritual adviser extends. 22 A.L.R.2d 1152.

Who is “clergyman” or the like entitled to assert privilege attaching to communications to clergymen or spiritual advisers. 49 A.L.R.3d 1205.

Matters to which the privilege covering communications to clergyman or spiritual adviser extends. 71 A.L.R.3d 794.

Insured-insurer communications as privileged. 55 A.L.R.4th 336.

Waiver of evidentiary privilege by inadvertent disclosure – state law. 51 A.L.R.5th 603.

Situations in which federal courts are governed by state law of privilege under Rule 501 of the Federal Rules of Evidence.48 A.L.R. Fed. 259.

Communications to clergyman as privileged in federal proceedings. 118 A.L.R. Fed. 449.

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 493, 494, 501, 502, 504.

CJS.

98 C.J.S., Witnesses § 440-442.

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss. L. J. 547, Winter, 1997.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 17:1, 17:13.

Cross References —

Provisions of Uniform Simultaneous Death Law, see §§91-3-1 through91-3-15.

Crime of bigamy not extending to person whose spouse has been absent for seven years, see §97-29-15.

Presumptions in civil actions and proceedings generally, see Miss. R. Evid. 301.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d (Rev), Absentees §§ 1 et seq.

22A Am. Jur. 2d, Death §§ 428-430 et seq.

Affidavit of absence, 1 Am. Jur. Legal Forms 2d, Absentees § 2:11.

1 Am. Jur. Proof of Facts, Absence, Proof No. 1.

CJS.

25A C.J.S., Death §§ 8-14.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 19:7, 19:19.

JUDICIAL DECISIONS

1. In general.

2. Evidence giving rise to presumption.

3. Application of presumption in marital situations.

4. Rebuttal of presumption.

1. In general.

If detrimental reliance upon decree pursuant to §13-1-23 can be shown, party presumed to be dead will not be allowed at some later date to be restored to property which was conveyed in reliance upon statute. Martin v. Phillips, 514 So. 2d 338, 1987 Miss. LEXIS 2820 (Miss. 1987).

Burden of proof is upon party attempting to prove death at any particular time within 7 years; no presumption as to time of death. New York Life Ins. Co. v. Brame, 112 Miss. 828, 73 So. 806, 1916 Miss. LEXIS 188 (Miss. 1916); Clement v. Knights of Maccabees of World, 113 Miss. 392, 74 So. 287, 1917 Miss. LEXIS 114 (Miss. 1917).

2. Evidence giving rise to presumption.

Clement v. Knights of Maccabees of World, 113 Miss. 392, 74 So. 287, 1917 Miss. LEXIS 114 (Miss. 1917).

A grant of letters of administration on an estate is prima facie evidence of the death of a person upon whose estate the administration is granted. Cock v. Abernathy, 77 Miss. 872, 28 So. 18, 1900 Miss. LEXIS 47 (Miss. 1900).

This section [Code 1942, § 1698] does not justify the presumption of the death of three infant devisees, who at the time of their departure from their last-known residence in this state, about eleven years before the trial, were of very tender years, the eldest being only seven years old, and who disappeared along with their mother and stepfather, the last named being at the time under apprehension of a criminal prosecution. The presumption of death not arising in such case because of the number and youth of such devisees, their subjection to the will of others and their incapacity to absent themselves from and conceal themselves within the state, the burden of proving their death is on him who asserts it, and is not met by the testimony of one or two witnesses who casually learned that such devisees once lived in a certain town in the state, such witnesses having only slight opportunity of knowing the facts. Manley v. Patterson, 73 Miss. 417, 19 So. 236 (Miss. 1895).

The uncontradicted testimony of the mother that the last she ever heard of her son was that ten years before he sailed on board a vessel for a foreign port, and that about five days afterwards there was a storm at sea, and that neither the ship nor anyone on board has ever been heard of since, and that she is satisfied her son is dead, fully establishes the presumption of death authorized by the statute. Learned v. Corley, 43 Miss. 687, 1870 Miss. LEXIS 76 (Miss. 1870), overruled, Cole v. Johnson, 53 Miss. 94, 1876 Miss. LEXIS 41 (Miss. 1876).

3. Application of presumption in marital situations.

Where a woman, more than twenty years after her husband had left her and gone to Arkansas, and, after having been informed by his sister that a letter from a postmaster in Arkansas stated that her husband had been drowned, remarried, without any divorce having been granted, and it was thereafter discovered that her first husband was still living and had also remarried, the woman’s second marriage was invalid, and the heirs of her second husband were entitled, as against her, to the proceeds of an insurance association policy, a bylaw of which association provided that beneficiaries must be related by blood or by marriage, or must be persons upon whom the insured was wholly dependent for a living, notwithstanding she was designated in such policy as beneficiary. Frank v. Frank, 193 Miss. 605, 10 So. 2d 839, 1942 Miss. LEXIS 159 (Miss. 1942).

Where woman’s undivorced husband lived openly within state after his release from penitentiary and kept in touch with near relatives living in county in which he had formerly resided, such woman’s subsequent marriage while husband lived held invalid, since inquiry would have disclosed that he was then alive, notwithstanding rumors that he was dead. Watson v. Watson, 177 Miss. 767, 171 So. 701, 1937 Miss. LEXIS 149 (Miss. 1937).

The presumption of the death of a husband or wife authorized by the statute will be applied in favor of the validity of a marriage contracted by the abandoned party after the expiration of the seven years. Spears v. Burton, 31 Miss. 547, 1856 Miss. LEXIS 115 (Miss. 1856); Gibson v. State, 38 Miss. 313, 1860 Miss. LEXIS 2 (Miss. 1860).

4. Rebuttal of presumption.

The presumption of one’s death arising from seven years’ absence without being heard from disappears when proof is made that he was alive within that time. Hill v. United Timber & Lumber Co., 68 So. 2d 420 (Miss. 1953).

This section [Code 1942, § 1698] embodies a rule at common law, and under it the presumption of death of a husband arising from seven years of absence without being heard from disappears when proof was made that he was alive within that time. Frank v. Frank, 193 Miss. 605, 10 So. 2d 839, 1942 Miss. LEXIS 159 (Miss. 1942).

Statutory presumption of death ends when it is shown that person whose death is in question is, in fact, alive. Watson v. Watson, 177 Miss. 767, 171 So. 701, 1937 Miss. LEXIS 149 (Miss. 1937); Johnson v. Lee, 212 Miss. 603, 55 So. 2d 140, 1951 Miss. LEXIS 489 (Miss. 1951).

That person was fugitive from justice held insufficient to rebut statutory presumption of death from absence for 7 years. Parker v. New York Life Ins. Co., 142 Miss. 517, 107 So. 198, 1926 Miss. LEXIS 60 (Miss. 1926).

Cross References —

Presumptions in civil actions and proceedings generally, see Miss. R. Evid 301.

RESEARCH REFERENCES

Am. Jur.

22A Am. Jur. 2d, Death §§ 437 et seq.

Editor’s Notes —

Laws, 1975, ch. 501, § 22, additionally provides that “the provisions of said section shall continue to apply to all actions and proceedings pending in the Supreme, chancery, circuit and county courts of this state prior to the repeal of said sections.” As to current statutory provisions for civil discovery, see §§13-1-201 et seq.

Former §13-1-27 related to depositions.

Former §13-1-29 related to deposition for use in a justice’s court.

Former §13-1-31 related to affidavit to be made by party desiring to take deposition.

Former §13-1-33 related to depositions of witnesses in state; before whom taken; notice.

Former §13-1-35 related to interrogatories to nonresident witness filed.

Former §13-1-37 related to persons to whom commissions may be directed.

Former §13-1-39 related to service of copies of interrogatories and notices.

Former §13-1-41 related to notice to nonresident or absent party.

Former §13-1-43 related to taking, returning, and opening depositions.

Former §13-1-45 related to examination from day to day.

Former §13-1-47 related to admissibility of depositions; attendance of witness may be procured.

Former §13-1-49 related to exceptions to depositions.

Former §13-1-51 related to obtaining pre-trial testimony of adversary.

Former §13-1-53 related to party may examine adversary in open court.

Former §13-1-55 related to interested witness may be examined in open court.

Former §13-1-57 related to filing of written statement to institute proceeding perpetuating testimony.

Former §13-1-59 related to notice in case of resident witness.

Former §13-1-61 related to notice in case of nonresident witness.

Former §13-1-63 related to service, return, and publication of notices.

Former §13-1-65 related to service of notice upon minor.

Former §13-1-67 related to perpetuation of testimony – taking of deposition of witness in state.

Former §13-1-69 related to perpetuation of testimony – taking of deposition of nonresident.

Former §13-1-71 related to depositions received and recorded.

Former §13-1-73 related to admissibility of depositions.

Former §13-1-75 related to costs paid by party procuring services.

Cross References —

Furnishing by secretary of state of certificate of the official character of any state officer, see §7-3-43.

Admissibility of bank’s copy of customer’s financial records, see §13-1-245.

Furnishing copy of municipal ordinance in judicial proceeding, see §21-13-17.

Prima facie evidentiary value of copies of records of state registrar of vital statistics, see §41-57-9.

When book of record of conveyances shall not be removed from courthouse, see §89-5-39.

Rule providing for the authentication of official documents, see Miss. R. Civ. P. 44.

Authentication and identification of evidence generally, see Miss. R. Civ. P. 901-903.

Evidence of contents of writings, recordings, and photographs generally, see Miss. R. Evid. 1001-1008.

RESEARCH REFERENCES

ALR.

What constitutes books of original entry within rule as to admissibility of books of account. 17 A.L.R.2d 235.

Am. Jur.

29A Am. Jur. 2d (Rev), Evidence, §§ 1270 et seq.

23 Am. Jur. Proof of Facts 3d 621, Examination and Identification of Photocopies and Photocopiers.

CJS.

32 C.J.S., Evidence §§ 1133, 1144, 1145.

Law Reviews.

McCormick, The Repealer: Conflicts in Evidence Created by Misapplication of Mississippi Rule of Evidence 1103. 67 Miss L J 547, Winter, 1997.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 22:3, 22:6, 22:20, 22:21.

JUDICIAL DECISIONS

1. In general.

Proof of prior convictions may be made by certified copies of judgments of convictions. Minnick v. State, 551 So. 2d 77, 1988 Miss. LEXIS 612 (Miss. 1988), rev'd, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489, 1990 U.S. LEXIS 6118 (U.S. 1990), overruled, Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

Certified copies of sentencing orders were proper proof of prior convictions, sufficient under habitual offender statute, where certification at issue contained attestation that copy was true and correct, and attestation bore seal of court; lack of book and page number were not fatal. Monroe v. State, 515 So. 2d 860, 1987 Miss. LEXIS 2764 (Miss. 1987).

Introduction into evidence at capital murder trial of records of defendant’s conviction in municipal court via the custodian of such records was not error. Stringer v. State, 500 So. 2d 928, 1986 Miss. LEXIS 2609 (Miss. 1986).

The certified abstract of a court record showing a defendant’s prior conviction was competent evidence of such conviction and was not rendered incompetent by the fact that the abstract included the punishment inflicted for the prior offense. Lovelace v. State, 410 So. 2d 876, 1982 Miss. LEXIS 1875 (Miss. 1982).

In a prosecution for the unlawful possession of a slot machine found upon the accused’s premises during a search by national guardsmen under authority of an executive order, and a search warrant issued by the county judge, it was not error to introduce in evidence a copy of the executive order, certified by the secretary of state, since whatever right, if any, accused had to subpoena witnesses and contradict the facts set forth in the original executive order applied as well to the copy as to the original. Brady v. State, 229 Miss. 677, 91 So. 2d 751, 1957 Miss. LEXIS 314 (Miss. 1957).

This section [Code 1942, § 1725] is applicable to the commissioner of public safety and therefore certified copy of orders suspending defendant’s driving license was competent evidence in prosecution for driving a motor vehicle upon a public highway without a driving license. Middleton v. State, 214 Miss. 697, 59 So. 2d 320, 1952 Miss. LEXIS 508 (Miss. 1952).

A certified copy of the docket entries of a justice of peace showing charge of illegal possession of liquor, issuance of warrant, trial, plea of guilty, fine and payment of fine is admissible in prosecution for second offense to show prior conviction. Vincent v. State, 200 Miss. 423, 27 So. 2d 556, 1946 Miss. LEXIS 305 (Miss. 1946).

Statute [Code 1942, § 568], regulating manner of probating claims and providing for withdrawal of original note of deceased, when clerk has made and retained copy thereof, authorized withdrawal of original attached affidavit where clerk made and retained certified copy thereof. Deposit Guaranty Bank & Trust Co. v. Jordan's Estate, 171 Miss. 332, 157 So. 876, 1934 Miss. LEXIS 260 (Miss. 1934).

For copy or excerpt from journal of senate deposited with secretary of state to be admissible in evidence it must be certified to by him. Witherspoon v. State, 138 Miss. 310, 103 So. 134, 1925 Miss. LEXIS 55 (Miss. 1925).

A board of supervisors’ books showing duplicate receipts given by a convict contractor to a sheriff for convicts is admissible in an action against the contractor’s bondsmen. State use of Panola County v. Oliver, 78 Miss. 5, 27 So. 988, 1900 Miss. LEXIS 72 (Miss. 1900).

Editor’s Notes —

Former §13-1-79 related to admissibility of certified copies of records of any united states office.

Cross References —

Proof of documents generally, see Miss. R. Civ. P. 44.

Authentication and identification of evidence generally, see Miss. R. Civ. P. 901-903.

JUDICIAL DECISIONS

1. In general.

Judicial record of another state cannot be proved or admitted in courts of this state as evidence of a fact until there has been compliance with authentication act of Congress, 28 USC § 687. Wallace v. Herring, 207 Miss. 658, 43 So. 2d 100, 1949 Miss. LEXIS 377 (Miss. 1949).

Certificates of clerk of circuit court of Cook County and of clerk of superior court of Cook County which do not show that the signer of certificate is in fact clerk are not admissible in court of this state to prove that there was no divorce between resident of this state and resident of Cook County, Illinois as certificates were not authenticated in manner provided by 28 USC § 687. Wallace v. Herring, 207 Miss. 658, 43 So. 2d 100, 1949 Miss. LEXIS 377 (Miss. 1949).

Certificate of clerk of foreign court showing the amount paid under divorce decree directing payment in instalments of money for support of minor child is presumed to be correct and the clerk is presumed to have accounted for all payments received by him. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

Editor’s Notes —

Former §13-1-83 related to admissibility and effect of certificate of officer of search in office.

Former §13-1-85 related to admissibility of state records preserved by department of archives and history.

Former §13-1-87 related to certificate of clerk of board of supervisors as evidence of default.

Former §13-1-89 related to evidence of enrollment of judgment.

Former §13-1-91 related to copies of records relating to conveyance under judgments of justices of the peace.

Former §13-1-93 related to copies of taxes bill of costs as evidence of amount due.

Former §13-1-95 related to admissibility and effect of certain transcribed records.

Former §13-1-97 related to admissibility of original writings and the like or records or copies thereof.

Former §13-1-99 related to admissibility of copies of writings recorded in any other state.

Former §13-1-101 related to admissibility of copies of foreign writings and the like.

Former §13-1-103 related to admissibility of certificates of marriages and copies thereof.

Former §13-1-105 related to admissibility of certified copies of wills and records thereof.

Former §13-1-107 related to admissibility and effect of certified copies from books of entries of land.

Former §13-1-109 related to admissibility of certified copies of field-notes and maps.

Former §13-1-111 related to admissibility of transcribed testimony.

Former §13-1-113 related to surveyor’s certificate as prima facie evidence of certain facts.

Former §13-1-114 permitted the certificate of a physician, chemist, or technician to be admitted as proof of the identity of a controlled substance if the analysis was performed in an approved laboratory and the certificate was properly attested to by the analyst.

Former §13-1-115 related to tax collector’s conveyance and list of lands sold as prima facie evidence.

Former §13-1-117 related to certified copy of appointment of foreign executor, administrator or guardian.

Editor’s Notes —

Former §13-1-119 related to injuries to persons or property by railroads and certain others as prima facie evidence of want of skill.

Cross References —

Relevancy of evidence generally, see Rules 401-412, Mississippi Rules of Evidence.

RESEARCH REFERENCES

Am. Jur.

14 Am. Jur. 2d, Carriers §§ 587, 588

29 Am. Jur. 2d, Evidence §§ 143, 229, 232.

13 Am. Jur. 2d(Rev), Carriers §§ 375 et seq.

14 Am. Jur. 2d, Carriers §§ 587, 588; 29 Am. Jur. 2d, Evidence §§ 143, 229, 232.

CJS.

13 C.J.S., Carriers §§ 411 et seq.

Cross References —

Other sections derived from same 1942 code section, see §§63-3-11,63-7-81.

Relevancy of evidence generally, see Miss. R. Evid. 401-412.

RESEARCH REFERENCES

ALR.

What constitutes “operation” or “negligence in operation” within statute making owner of motor vehicle liable for negligence in its operation. 13 A.L.R.2d 378.

Admissibility, in civil motor vehicle accident case, of evidence that driver was or was not involved in previous accidents. 20 A.L.R.2d 1210.

Lack of proper automobile registration or operator’s license as evidence of operator’s negligence. 29 A.L.R.2d 963.

Admissibility of opinion evidence as to whether vehicle involved in collision was standing still or moving. 33 A.L.R.2d 866.

Admissibility in action involving motor vehicle accident of evidence as to manner in which participant was driving before reaching scene of accident. 46 A.L.R.2d 9.

Custom or practice of drivers of motor vehicles as affecting liability based on violation of law. 77 A.L.R.2d 1331.

Am. Jur.

7A Automobiles and Highway Traffic §§ 30, 31.

8 Am. Jur. 2d, Automobiles and Highway Traffic §§ 386 et seq.

CJS.

60 C.J.S., Motor Vehicles §§ 500 et seq.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 19:19.

JUDICIAL DECISIONS

1. In general.

In a personal injury action, a truck driver who struck a pedestrian was not negligent as a matter of law by virtue of the fact that he did not see the pedestrian in the highway in time to avoid striking him; the issue of the driver’s negligence was for the jury to decide. Hood v. Oakley, 519 So. 2d 1236, 1988 Miss. LEXIS 158 (Miss. 1988).

In an action for damages resulting from an automobile accident, although negligence will not be presumed because the accident and the injury occurred, the accident is a proper circumstance or fact to be considered by the jury in deciding the issue of negligence. Bigelow v. Sports Cars, Ltd., 221 So. 2d 108, 1969 Miss. LEXIS 1492 (Miss. 1969).

In an action for damages resulting from an automobile accident, an instruction to the effect that if the rights of the plaintiff were doubtful in the minds of the jury, the jury should find for the defendant, because the burden is upon the plaintiff to prove his case by the greater weight of the believable evidence or the plaintiff has no right to recover, was improper, as leading to the conclusion that the jury was required to believe that the plaintiff must prove his case beyond a reasonable doubt, placing a greater burden of proof on the plaintiff than is required in a civil case. Bigelow v. Sports Cars, Ltd., 221 So. 2d 108, 1969 Miss. LEXIS 1492 (Miss. 1969).

While a patrolman or police officer, not an eyewitness to an accident, who investigates the accident shortly after it happens may properly testify as to the matters and things that he finds at the scene, he cannot be allowed to invade the province of the jury by giving his opinion as to how the accident happened. Lynch v. Suthoff, 220 So. 2d 593, 1969 Miss. LEXIS 1464 (Miss. 1969).

Automobile driver killing mule while driving at excessive speed was prima facie negligent. Lucedale Auto. Co. v. Daughdrill, 154 Miss. 707, 123 So. 871, 1929 Miss. LEXIS 186 (Miss. 1929).

Automobile held not dangerous instrumentality, rendering owner liable for driver’s negligent use. Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258, 1925 Miss. LEXIS 289 (Miss. 1925).

Judgment for guest injured in automobile not reversed because of instructions whose error, if any, was harmless. Friis v. Gahan, 139 Miss. 375, 104 So. 170, 1925 Miss. LEXIS 158 (Miss. 1925).

Driver or owner of motor vehicle must show due care and observance of the statute. Flynt v. Fondren, 122 Miss. 248, 84 So. 188, 1920 Miss. LEXIS 433 (Miss. 1920).

Editor’s Notes —

Former §13-1-124 provided that three forms of evidence, affidavits of the automobile owner and operator, an affidavit of the commissioner of public safety, or an affidavit of the claimant, would constitute prima facie evidence of an automobile owner and operator’s uninsured status.

Former §13-1-125 related to certified copies of bonds of officers and others as evidence.

Former §13-1-127 related to copies of writings filed in other courts as evidence.

Former §13-1-129 related to record of dishonor of bills and notes as evidence.

Cross References —

Records of land office, see §§7-11-13 et seq.

What lands shall be conveyed only by a writing signed and delivered, see §89-1-3.

Recording of United States or state patents, see §89-5-11.

Evidence of public records generally, see Miss. R. Evid. 803.

RESEARCH REFERENCES

Am. Jur.

29A Am. Jur. 2d (Rev), Evidence §§ 1226, 1227, 1229.

CJS.

32 C.J.S., Evidence §§ 1133, 1135.

JUDICIAL DECISIONS

1. In general.

Evidence held inadmissible to contradict official map on file in general land office. H. Weston Lumber Co. v. Strahan, 128 Miss. 54, 90 So. 452, 1921 Miss. LEXIS 298 (Miss. 1921).

Plaintiff introducing certificates from U. S. Land Office showing his entry of land involved and cancellation of prior entry under which defendants claimed, could bring ejectment. Gilleylen v. Isbel, 119 Miss. 566, 81 So. 161, 1919 Miss. LEXIS 24 (Miss. 1919).

This section [Code 1942, § 1744] is only rule of evidence, and establishes only prima facie title which may be defeated by paramount title. Halloway v. Miles, 110 Miss. 532, 70 So. 697, 1915 Miss. LEXIS 78 (Miss. 1915).

Plaintiff holding letter or writing signed by register of U. S. Land Office allowing his application to make homestead entry, may maintain ejectment. Methodist Episcopal Camp Ground Ass'n v. Brown, 105 Miss. 313, 62 So. 276, 1913 Miss. LEXIS 207 (Miss. 1913).

Receiver’s certificate to one in possession of public lands claiming as homestead constitutes title supporting action for cutting and removing timber. Hiwannee Lumber Co. v. McPhearson, 95 Miss. 589, 49 So. 741, 1909 Miss. LEXIS 291 (Miss. 1909).

Grantee of certificate from register of land office holds full legal title to the land, and may maintain action thereon against a trespasser. Johnson v. Davis, 91 Miss. 708, 45 So. 979, 1907 Miss. LEXIS 207 (Miss. 1907).

The certificate vests title only when properly issued and while in full force and uncanceled. Where the certificate was indorsed “suspended for want of township plat,” and was deposited in the general land-office at Washington City, but was sent to the plaintiff to be used for the purpose of testing his title to the land, and then to be returned, it was insufficient to vest title and sustain ejectment. Davis v. Freeland's Lessee, 32 Miss. 645, 1856 Miss. LEXIS 232 (Miss. 1856).

The statute gives to the certificate the effect of vesting a complete legal title, to all intents and purposes, in the person to whom issued and his assignees, and not simply to entitle the holder to recover the land in an action. Lindsey v. Henderson, 27 Miss. 502, 1854 Miss. LEXIS 86 (Miss. 1854).

A prior entry and a certificate thereof, without a patent, gives a better right in equity than a subsequent entry of the same land by another to whom a patent is issued; and a court of chancery, at the instance of the first enterer, will set aside the title of the patentee. Hester v. Kembrough, 20 Miss. 659, 1849 Miss. LEXIS 112 (Miss. 1849).

The certificate is but a substitute for a better title, and is not on an equal footing with a patent. If a patent be issued to another person to the same land after a certificate of entry to one without a patent, the holder of the patent will prevail in an action of ejectment against the holder of the certificate. Dickinson v. Brown, 17 Miss. 130, 1847 Miss. LEXIS 97 (Miss. 1847).

Editor’s Notes —

Former §13-1-133 related to when partnership need not be proved.

Former §13-1-135 related to when subscription of stock need not be proved.

Former §13-1-137 related to when notice of dishonor of bills or notes need not be proved.

Former §13-1-139 related to when signature, execution of instrument, identity or names of persons, or the like, need not be proved.

Former §13-1-141 related to affidavit to correctness of account entitles affiant to judgment.

Former §13-1-143 related to proof of publication of notices.

Former §13-1-145 related to proof of posting of notice.

Former §13-1-147 related to private acts of legislative as evidence although not specially pleaded.

Cross References —

Judicial notice of adjudicative facts, see Miss. R. Evid. 201.

RESEARCH REFERENCES

ALR.

Uniform Judicial Notice of Foreign Law Act. 23 A.L.R.2d 1437.

Reception of evidence to contradict or rebut matters judicially noticed. 45 A.L.R.2d 1169.

Judicial notice of matters relating to public thoroughfares and parks. 48 A.L.R.2d 1102.

Federal or state law as governing federal court’s authority, in diversity action after Erie R. Co. v. Tompkins, to take judicial notice of law of sister state or foreign country. 7 A.L.R. Fed. 921.

Am. Jur.

29 Am. Jur. 2d (Rev), Evidence §§ 117, 125, 126, 128 et seq.

CJS.

31A C.J.S., Evidence §§ 30-33, 38.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 18:3, 22:8.

JUDICIAL DECISIONS

1. In general.

Parties to controversy involving validity and effect of power of attorney which has not been acknowledged and recorded in manner of conveyance of land with respect to conveyance of real property situated in Greece may stipulate to application and enforcement of Mississippi rules of law, rather than otherwise applicable to Greek law; if parties do so, trial judge may proceed to adjudge all issues according to Mississippi law and enter final judgment which, subject to appeal, would not doubt be enforceable against parties in courts of Mississippi, even though, in Republic of Greece, judgment may not be worth paper it is written on. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Before court may resolve question of whether power of attorney which has not been acknowledged and recorded in manner provided for instruments of conveyance of interests in land is valid and enforceable with respect to real property located in Republic of Greece, Greek law must be consulted to determine whether there is conflict between laws of Mississippi and those of Greece with respect to real property and powers of attorney. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Proceeding for enforcement of purchase-money lien was not invalid because seller did not show notary public, before whom affidavit of seizure which was made in Ohio was taken, had authority to take and certify affidavits since court would take judicial notice of Ohio law authorizing notary public to administer and certify oaths. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

Where right of action for employee’s death was based on foreign statute, it was unnecessary to plead statute. Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395, 1930 Miss. LEXIS 196 (Miss. 1930).

Courts will take judicial notice of another state’s statute regarding residence necessary to maintain divorce action. Williams v. State, 151 Miss. 82, 117 So. 360, 1928 Miss. LEXIS 280 (Miss. 1928).

In proceeding for custody of child in this state previous adjudication of another state not controlling. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, 1920 Miss. LEXIS 481 (Miss. 1920).

Injury occurring in Tennessee governed by Tennessee law. Turner v. Southern R. Co., 112 Miss. 359, 73 So. 62, 1916 Miss. LEXIS 119 (Miss. 1916).

Action cannot be maintained in Mississippi for death in Louisiana unless permitted by law of Louisiana. Runt v. Illinois C. R. Co., 88 Miss. 575, 41 So. 1, 1906 Miss. LEXIS 157 (Miss. 1906).

Courts will not take judicial notice of town ordinances. Naul v. State, 70 Miss. 699, 12 So. 903 (Miss. 1893).

Cross References —

Admissibility of business records and copies, thereof, see Miss. R. Evid. 803 and 1001-1008.

RESEARCH REFERENCES

ALR.

Admissibility in evidence of enlarged photographs or photostatic copies. 72 A.L.R.2d 308.

Photographic representation or photostat of writing as primary or secondary evidence within best evidence rule. 76 A.L.R.2d 1356.

Letters to or from customers or suppliers as business records under statutes authorizing reception of business records in evidence. 68 A.L.R.3d 1069.

Admissibility in state court proceedings of police reports as business records. 77 A.L.R.3d 115.

Business records: authentication and verification of bills and invoices under Rule 803(6) of the Uniform Rules of Evidence. 1 A.L.R.4th 316.

Admissibility of computerized private business records. 7 A.L.R.4th 8.

Admissibility of school records under hearsay exemptions. 57 A.L.R.4th 1111.

Admissibility in state court proceedings of police reports as business records. 111 A.L.R.5th 1.

Admissibility of credit reports under Federal Business Records Act (28 USCS § 1732(a)). 19 A.L.R. Fed. 988.

Admissibility of records other than police reports, under Rule 803(6), Federal Rules of Evidence, providing for business records exception to hearsay rule. 61 A.L.R. Fed. 359.

Am. Jur.

29A Am. Jur. 2d (Rev), Evidence § 1099.

CJS.

32 C.J.S., Evidence §§ 1081, 1177, 1178 et seq.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 22:21, 24:13.

JUDICIAL DECISIONS

1. In general.

A photostatic copy of a check from a purchaser of wood to the embezzler of it was properly admitted into evidence, and the original was not required, where absence of the original was explained and the photostatic copy was identified by an employee of the issuer of the check and the employee had signed the check. Bass v. State, 328 So. 2d 665, 1976 Miss. LEXIS 1812 (Miss. 1976).

Editor’s Notes —

Former §13-1-153 related to settlement of property damage claim under motor vehicle liability policy; effect.

Editor’s Notes —

Section 11-5-121 referred to in this section was repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

OPINIONS OF THE ATTORNEY GENERAL

A court clerk may destroy, return, or dispose of all exhibits 90 days after the final disposition of a civil action, if the time for an appeal has expired; if a party has perfected an appeal, then the court clerk may destroy, return, or dispose of all exhibits 90 days after receiving a certificate of the final disposition of the action. Parker, Mar. 30, 2001, A.G. Op #01-0159.

RESEARCH REFERENCES

ALR.

Consumption or destruction of physical evidence due to testing or analysis by prosecution’s expert as warranting suppression of evidence or dismissal of case against accused in state court. 40 A.L.R.4th 594.

Editor’s Notes —

Former §13-1-201 provided that §§13-1-226 through13-1-237, and §13-1-243 applied to civil proceedings in circuit, chancery, and county courts.

Editor’s Notes —

Former §13-1-226 contained general provisions governing discovery.

Editor’s Notes —

Sections 13-1-201, 13-1-226, 13-1-228, 13-1-230 to 13-1-237, 13-1-241 and 13-1-243 referred to in (a)(3), (a)(4) and (b) were repealed by Laws of 1991, ch. 573, § 141, effective from and after July 1, 1991.

Cross References —

Award of attorney fees and costs against attorney or party who abuses discovery procedures available under the rules of civil procedure, see §11-55-5.

Depositions in court-martial proceedings, see §33-13-327.

Depositions before action or pending appeal, see Miss. R. Civ. P. 27.

RESEARCH REFERENCES

ALR.

Right to take depositions in perpetual remembrance for use in pending action. 70 A.L.R.2d 674.

Production and inspection of premises, persons, or things in proceeding to perpetuate testimony. 98 A.L.R.2d 909.

Use of videotape to take deposition for presentation at civil trial in state court. 66 A.L.R.3d 637.

Permissibility of testimony by telephone in state trial. 85 A.L.R.4th 476.

Right to perpetuation of testimony under Rule 27 of Federal Rules of Civil Procedure.60 A.L.R. Fed. 924.

Taxation of costs associated with videotaped depositions under 28 U.S.C.S. § 1920 and Rule 54(d) of Federal Rules of Civil Procedure. 156 A.L.R. Fed. 311.

Am. Jur.

23 Am. Jur. 2d (Rev), Depositions and Discovery §§ 4, 84.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Forms 81 et seq. (depositions to perpetuate testimony before action).

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Forms 111-114 (depositions to perpetuate testimony pending appeal).

11 Am. Jur. Pl & Pr Forms (Rev), Federal Practice and Procedure, Forms 891 et seq. (depositions to perpetuate testimony before action).

11 Am. Jur. Pl & Pr Forms (Rev), Federal Practice and Procedure, Forms 911-913 (depositions to perpetuate testimony pending appeal).

For interpretative notes and decisions construing similar Rule 27 of the Federal Rules of Civil Procedure, see Court Rules volumes of the United States Code Service.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

Symposium on Mississippi Rules of Civil Procedure: Discovery-Rules 26-34, 36 and 37. 52 Miss. L. J. 119, March 1982.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 28:19.

JUDICIAL DECISIONS

1. In general.

Section 13-1-227 refers only to the taking of depositions before an action is commenced or pending an appeal, and does not apply to the taking of a deposition after a law suit is filed but before trial. Wallace v. Employers Mut. Casualty Co., 443 So. 2d 843, 1983 Miss. LEXIS 3027 (Miss. 1983).

Editor’s Notes —

Former §13-1-228 set forth persons before whom depositions could be taken.

Editor’s Notes —

Sections 13-1-201, 13-1-226, 13-1-228, 13-1-230 to 13-1-237, 13-1-241, and 13-1-243 referred to in this section were repealed by Laws of 1991, ch. 573, § 141, effective from and after July 1, 1991.

Cross References —

Award of attorney fees and costs against attorney or party who abuses discovery procedures available under the rules of civil procedure, see §11-55-5.

Stipulations regarding discovery procedure, see Miss. R. Civ. P. 29.

RESEARCH REFERENCES

Am. Jur.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Forms 1 et seq. (stipulations relating to depositions).

11 Am. Jur. Pl & Pr Forms (Rev), Federal Practice and Procedure, Forms 851-855 (stipulations relating to depositions).

For interpretative notes and decisions construing similar Rule 29 of the Federal Rules of Civil Procedure, see Court Rules volumes of the United States Code Service.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

Editor’s Notes —

Former §13-1-230 governed the procedures for depositions upon oral examination.

Former §13-1-231 provided for procedures for depositions upon written questions.

Former §13-1-232 provided for the use of depositions in court proceedings.

Former §13-1-233 provided for the service of interrogatories upon parties and the use of responses at trial.

Former §13-1-234 provided for inspection by a party of documents or other evidence in another’s possession, and it prescribed procedure for entry upon another’s land for inspection.

Former §13-1-236 governed requests for admission.

Former §13-1-237 provided remedies and sanctions for failure to comply with discovery.

Former §13-1-241 governed methods of service of notices and other papers issued under §§13-1-226 through13-1-237, and §13-1-243.

Former §13-1-243 excluded discovery expenses from court costs.

Cross References —

General duty of nondisclosure of depositors’ names, see §81-5-55.

RESEARCH REFERENCES

ALR.

Existence of fiduciary relationship between bank and depositor or customer so as to impose special duty of disclosure upon bank. 70 A.L.R.3d 1344.

Admissibility of computerized private business records. 7 A.L.R.4th 8.

Dismissal of state court action for failure or refusal of plaintiff to obey request or order for production of documents or other objects. 27 A.L.R.4th 51.

Am. Jur.

23 Am. Jur. 2d, Depositions and Discovery §§ 224-226.

29A Am. Jur. 2d, Evidence § 836.

29A Am. Jur. 2d, Evidence § 1255.

CJS.

32 C.J.S., Evidence §§ 1197, 1198

32A C.J.S., §§ 1202, 1259, 1278, 1351-1355.

27 C.J.S., Discovery §§ 122-129.

32 C.J.S., Evidence §§ 1197, 1198; 32A C.J.S., §§ 1202, 1259, 1278, 1351-1355.

Cross References —

Depositions and discovery, see Miss. R. Civ. P. 26 through 37.

Judgment creditor’s examination of judgment debtor or other persons, see Miss. R. Civ. P. 69.

Enforcement of judgments, see Uniform Rule of Procedure for Justice Court 2.15.

OPINIONS OF THE ATTORNEY GENERAL

A plaintiff may not file an examination of a judgment debtor more than once every six months, however there is no limit to the number of examinations that may be filed. Strahan, June 11, 2004, A.G. Op. 04-0249.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Execution of Judgments §§ 1 et seq.

CJS.

49 C.J.S., Judgments §§ 919-921, 923 et seq.

JUDICIAL DECISIONS

1. In general.

A judgment creditor may conduct a post-judgment examination of a third party who is not employed by nor an agent of the judgment debtor, but such an examination is limited in scope to nonprivileged matters which are relevant to the judgment creditor’s allegations that the judgment debtor has assets which properly should be discovered and used to satisfy the judgment. Ex parte Burchinal, 571 So. 2d 281, 1990 Miss. LEXIS 723 (Miss. 1990).

Circuit Court properly ordered examination of judgment debtor and production of documents in county where suit was filed, where judgment debtor had waived its right to argue that it could not be found in that county, and thus statute concerning examination of judgment debtor by judgment creditor was construed consistently with venue already established for trial of action. H & W Transfer & Cartage Service, Inc. v. Griffin, 511 So. 2d 895, 1987 Miss. LEXIS 2610 (Miss. 1987).

Cross References —

Rule governing judgment creditor’s examination of judgment debtor or other persons, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Where a person received a judgment in in the county of his residence against a defendant who is a resident of another county, since, pursuant to this section, the motion for examination is filed and the examination occurs in the county of the domicile of the defendant the fee would likewise be received by the court of that county. Court costs in connection with examination should be taxed against the judgment debtor unless the court determines that the creditor invoked the remedy needlessly, in which case the court may tax the costs against the creditor. Carlisle, Dec. 10, 2004, A.G. Op. 04-0607.

JUDICIAL DECISIONS

1. In general.

Circuit Court properly ordered examination of judgment debtor and production of documents in county where suit was filed, where judgment debtor had waived its right to argue that it could not be found in that county, and thus statute concerning examination of judgment debtor by judgment creditor was construed consistently with venue already established for trial of action. H & W Transfer & Cartage Service, Inc. v. Griffin, 511 So. 2d 895, 1987 Miss. LEXIS 2610 (Miss. 1987).

Cross References —

Rule governing judgment creditor’s examination of judgment debtor or other persons, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

An order to appear for an examination of judgment debtor should be served as in other civil cases and, therefore, may be posted on the door of the defendant’s usual place of abode; however, service of process by means of posting on a door would not subject a defendant to contempt for failure to appear for an examination of judgment debtor hearing. Parker, May 3, 2002, A.G. Op. #02-0225.

Where a person received a judgment in in the county of his residence against a defendant who is a resident of another county, the motion of the judgment debtor filed in the county of domicile of the defendant and the order entered by that court should be served on the defendant by a process server. Carlisle, Dec. 10, 2004, A.G. Op. 04-0607.

Cross References —

Rule governing judgment creditor’s examination of judgment debtor or other persons, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Failure to comply with a court’s order for the examination of a judgment debtor amounts to civil contempt, and a defendant should be sentenced accordingly. Boykin, Oct. 6, 2000, A.G. Op. #2000-0586.

If a defendant fails to appear for an examination of judgment debtor hearing after being personally served, the court may issue a contempt warrant for the defendant’s arrest. The defendant may be jailed until he complies with the examination of judgment debtor order. Strahan, June 11, 2004, A.G. Op. 04-0249.

Cross References —

Appointment of interpreter, see Uniform Rule of Procedure for Justice Court 1.15.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 A.L.R.4th 698.

Am. Jur.

75 Am. Jur. 2d, Trials §§ 166-168.

CJS.

88 C.J.S., Trial § 96.

Cross References —

Duty of state to support institutions for the deaf, see Miss. Const. Art. 8, § 209.

Registration of persons with impaired hearing, see §37-23-123.

Schools for the deaf, see §§43-5-1 et seq.

Rights and liabilities of deaf persons generally, see §§43-6-1 et seq.

Appointment of interpreter in criminal cases, see §99-17-7.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Deaf-mute as witness. 50 A.L.R.4th 1188.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 A.L.R.4th 698.

Am. Jur.

75 Am. Jur. 2d, Trials § 168.

CJS.

88 C.J.S., Trial § 96.

JUDICIAL DECISIONS

1. In general.

Trial court properly denied defendant’s motion for postconviction relief on his claim that he was denied due process by the State’s failure to provide an interpreter during his arrest, interrogation, and pretrial matters because there was no evidence in the record concerning the pre-court events other than defendant’s verified motion which was not even supported by his own affidavit; the trial court did not err by denying defendant’s motion on incompetency grounds because no evidence was presented by defendant to support his claim of mental incompetency. Easterling v. State, — So.3d —, 2019 Miss. App. LEXIS 116 (Miss. Ct. App. Mar. 26, 2019).

A search pursuant to a defendant’s consent was constitutionally valid, even though the defendant, who was deaf, was not afforded an interpreter in accordance with §13-1-303(3), where the testimony of the law enforcement officers clearly indicated that the defendant understood what he was doing when he agreed to the search, the defendant was asked questions to which he gave appropriate responses, he was specifically told that he did not have to consent to the search, both the request for and the granting of the consent were done in writing, and the defendant used communicative and cognitive faculties other than hearing when he consented to the search. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Cross References —

Registration of persons with impaired hearing, see §37-23-123.

Rights and liabilities of deaf persons generally, see §§43-6-1 et seq.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 A.L.R.4th 698.

Am. Jur.

75 Am. Jur. 2d (Rev), Trials §§ 166-168.

CJS.

88 C.J.S., Trial § 96.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Am. Jur.

75 Am. Jur. 2d (Rev), Trials §§ 166-168.

CJS.

88 C.J.S., Trial § 96.

Editor’s Notes —

Former §13-1-309 made communications through an interpreter for the deaf between an attorney and client privileged.

Cross References —

Mississippi School for the Deaf, see Miss. Const. Art. 8, § 209 and Code §43-5-1 et seq.

Rights and liabilities of deaf persons generally, see §§43-6-1 et seq.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Am. Jur.

57 Am. Jur. 2d, Trials §§ 57, 58.

CJS.

88 C.J.S. Trials § 42.

Cross References —

Oath or affirmation of witness, see Miss. R. Evid. 603.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Am. Jur.

57 Am. Jur. 2d (Rev), Trials §§ 230-232.

CJS.

88 C.J.S., Trial § 96.

RESEARCH REFERENCES

ALR.

Criminal trial of deaf, mute, or blind person. 80 A.L.R.2d 1084.

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Disqualification for bias of one offered as interpreter of testimony. 6 A.L.R.4th 158.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter. 12 A.L.R.4th 1016.

Am. Jur.

75 Am. Jur. 2d (Rev), Trials §§ 166-168.

CJS.

88 C.J.S., Trial § 96.

Editor’s Notes —

Section97-5-21 referred to in (a) was repealed by Laws, 1998, ch. 549, § 7, effective from and after July 1, 1998. For similar provisions, see §§97-3-65,97-3-95,97-5-23, and97-3-101.

RESEARCH REFERENCES

Law Reviews.

Comment: Recent amendments to the Mississippi Rules of Evidence – the rights of the victim v. the rights of the accused in child abuse prosecutions and dependency or neglect proceedings. 61 Miss. L. J. 367 (Fall 1991).

RESEARCH REFERENCES

ALR.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 A.L.R.3d 1433.

Accused’s right to depose prospective witnesses before trial in state court. 2 A.L.R.4th 704.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial. 38 A.L.R.4th 378.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 A.L.R.4th 310.

Sufficiency of evidence to establish parent’s knowledge or allowance of child’s sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

Validity, construction, and application of child hearsay statutes. 71 A.L.R.5th 637.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 157-168.

41 Am. Jur. 2d, Incest §§ 26-28, 32.

65 Am. Jur. 2d, Rape §§ 40-65.

70C Am. Jur. 2d, Sodomy §§ 25-29.

2 Am. Jur. Proof of Facts 2d, pp 365-465, Child abuse-the battered child syndrome.

35 Am. Jur. Proof of Facts 2d 665, Qualifying Child Witness to Testify.

18 Am. Jur. Trials, pp 342-441, Cross-examination in rape prosecution.

CJS.

75 C.J.S., Rape §§ 62-101.

81A C.J.S., Sodomy §§ 8-11.

JUDICIAL DECISIONS

1. In general.

Since the promulgation of rules for the regulation of trial lie at the core of the judicial power, officers of neither the legislative nor executive departments of government, acting jointly or severally, had authority to confer legal validity upon the Evidence of Child Sexual Abuse Act. As that act enjoys no legal validity, it may not be regarded as “law” within Rule 802, Miss. R. Ev., which declares that hearsay is not admissible “except as provided by law.” Thus, a child’s out-of-court statements of complaints against his father were inadmissible in a child sexual battery prosecution of the father even though expert testimony indicated that the child would experience traumatic or emotional distress if he were required to testify against his father in open court. Hall v. State, 539 So. 2d 1338, 1989 Miss. LEXIS 104 (Miss. 1989).

Cross References —

Rights of children testifying in criminal proceedings, see §99-43-101.

Use of depositions in court proceedings, see Miss. R. Civ. P. 32.

Form and admissibility of evidence generally, see Miss. R. Civ. P. 43.

RESEARCH REFERENCES

ALR.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 A.L.R.3d 1433.

Admissibility of videotape film in evidence in criminal trial. 60 A.L.R.3d 357.

Propriety of allowing absent witness to be examined over closed-circuit television. 80 A.L.R.3d 1212.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 A.L.R.4th 310.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 157-168.

41 Am. Jur. 2d, Incest §§ 26-28, 32.

65 Am. Jur. 2d, Rape §§ 40-65.

70C Am. Jur. 2d, Sodomy §§ 25-29.

18 Am. Jur. Trials, pp 342-441, Cross-examination in rape prosecution.

2 Am. Jur. Proof of Facts 2d, pp 365-465, Child abuse – the battered child syndrome.

35 Am. Jur. Proof of Facts 2d, pp 665-690, Qualifying child witness to testify.

CJS.

75 C.J.S., Rape §§ 6-101.

81A C.J.S., Sodomy §§ 8-11.

98 C.J.S., Witnesses §§ 489-559.

Law Reviews.

Recent amendments to the Mississippi Rules of Evidence – the rights of the victim v. the rights of the accused in child abuse prosecutions and dependency or neglect proceedings. 61 Miss. L. J. 367 (Fall 1991).

RESEARCH REFERENCES

ALR.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 A.L.R.3d 1433.

Admissibility of videotape film in evidence in criminal trial. 60 A.L.R.3d 357.

Propriety of allowing absent witness to be examined over closed – circuit television. 80 A.L.R.3d 1212.

Constitutionality of “rape shield” statute restricting evidence of victim’s sexual experiences. 1 A.L.R.4th 283.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Admissibility or use in criminal trial of testimony given at preliminary proceeding by witness not available at trial. 38 A.L.R.4th 378.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 A.L.R.4th 310.

Sufficiency of evidence to establish parent’s knowledge or allowance of child’s sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 157-168.

41 Am. Jur. 2d, Incest §§ 26-28, 32.

65 Am. Jur. 2d, Rape §§ 40-65.

70C Am. Jur. 2d, Sodomy §§ 25-29.

2 Am. Jur. Proof of Facts 2d, pp 365-465, Child abuse – the battered child syndrome.

35 Am. Jur. Proof of Facts 2d, pp 665-690, Qualifying child witness to testify.

18 Am. Jur. Trials, pp 342-441, Cross-examination in rape prosecution.

CJS.

75 C.J.S., Rape §§ 62-101.

81A C.J.S., Sodomy §§ 8-11.

98 C.J.S., Witnesses §§ 489-559.

RESEARCH REFERENCES

ALR.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 A.L.R.3d 1433.

Necessity and admissibility of expert testimony as to credibility of witness. 20 A.L.R.3d 684.

Admissibility of expert medical testimony on battered child syndrome. 98 A.L.R.3d 306.

Constitutionality of “rape shield” statute restricting evidence of victim’s sexual experiences. 1 A.L.R.4th 283.

Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial. 15 A.L.R.4th 1043.

Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination. 17 A.L.R.4th 867.

Modern status of rule regarding necessity for corroboration of victim’s testimony in prosecution for sexual offense. 31 A.L.R.4th 120.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. 42 A.L.R.4th 879.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor. 43 A.L.R.4th 395.

Admissibility at criminal prosecution of expert testimony on battering parent syndrome. 43 A.L.R.4th 1203.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 A.L.R.4th 310.

Sufficiency of evidence to establish parent’s knowledge or allowance of child’s sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

When will expert testimony “assist trier of fact” so as to be admissible at federal trial under Rule 702 of Federal Rules of Evidence.75 A.L.R. Fed. 461.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 157-168.

31A Am. Jur. 2d, Expert and Opinion Evidence §§ 145-178.

41 Am. Jur. 2d, Incest §§ 26-28, 32.

65 Am. Jur. 2d, Rape §§ 40-65.

70C Am. Jur. 2d, Sodomy §§ 25-29.

10 Am. Jur. Pl & Pr Forms (Rev), Expert and Opinion Evidence, Forms 1 et seq. (appointment of expert witnesses).

2 Am. Jur. Proof of Facts 2d, pp 365-465, Child abuse – the battered child syndrome.

35 Am. Jur. Proof of Facts 2d, pp 665-690, Qualifying child witness to testify.

18 Am. Jur. Trials, pp 342-441, Cross-examination in rape prosecution.

CJS.

32 C.J.S, Evidence §§ 649-651.

75 C.J.S., Rape §§ 62-101.

81A C.J.S., Sodomy §§ 8-11.

Law Reviews.

Posner, Who can speak for our children? Qualification of experts in cases of child sexual abuse. 12 Miss. C. L. Rev. 493, Spring, 1992.

Cross References —

Relevance of the behavioral indicators described in this section to the admissibility of a child’s out-of-court statements, see §13-1-403.

Relevance of the behavioral factors described in this section to the use of closed circuit television to show a child’s testimony, see §13-1-405.

Relevance of the behavioral factors described in this section to the use of a child’s videotaped testimony, see §13-1-407.

RESEARCH REFERENCES

ALR.

Requiring complaining witness in prosecution for sex crime to submit to psychiatric examination. 18 A.L.R.3d 1433.

Necessity and admissibility of expert testimony as to credibility of witness. 20 A.L.R.3d 684.

Admissibility of expert medical testimony on battered child syndrome. 98 A.L.R.3d 306.

Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial. 15 A.L.R.4th 1043.

Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination. 17 A.L.R.4th 867.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. 42 A.L.R.4th 879.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor. 43 A.L.R.4th 395.

Admissibility at criminal prosecution of expert testimony on battering parent syndrome. 43 A.L.R.4th 1203.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution. 45 A.L.R.4th 310.

Sufficiency of evidence to establish parent’s knowledge or allowance of child’s sexual abuse by another under statute permitting termination of parental rights for “allowing” or “knowingly allowing” such abuse to occur. 53 A.L.R.5th 499.

Am. Jur.

6 Am. Jur. 2d, Assault and Battery §§ 157-168.

31A Am. Jur. 2d, Expert and Opinion Evidence §§ 145-178.

41 Am. Jur. 2d, Incest §§ 26-28, 32.

65 Am. Jur. 2d, Rape §§ 40-65.

70C Am. Jur. 2d, Sodomy §§ 25-29.

2 Am. Jur. Proof of Facts 2d, pp 365-465, Child abuse – the battered child syndrome.

35 Am. Jur. Proof of Facts 2d, pp 665-690, Qualifying child witness to testify.

25 Am. Jur. Proof of Facts 3d 189, Corroboration of a Child’s Sexual Abuse Allegations With Behavioral Evidence.

18 Am. Jur. Trials, pp 342-441, Cross-examination in rape prosecution.

CJS.

32 C.J.S., Evidence §§ 885, 886.

75 C.J.S., Rape 62-101.

81A C.J.S., Sodomy §§ 8-11.

Law Reviews.

Posner, Who can speak for our children? Qualification of experts in cases of child sexual abuse. 12 Miss. C. L. Rev. 493, Spring, 1992.

Cross References —

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

ALR.

Civil liability of judicial officer for malicious prosecution or abuse of process. 64 A.L.R.3d 1251.

JUDICIAL DECISIONS

1. In general.

2. Notice of sale sufficient.

1. In general.

This section [Code 1942, § 1940] has no application to newspaper notices given by a board of supervisors to the public that equalized tax rolls are ready for inspection. Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140, 1948 Miss. LEXIS 325 (Miss. 1948).

This section [Code 1942, § 1940] applies only to process in courts proper where property rights are involved and not to the exercise of jurisdiction by the board of supervisors in binding out apprentices. Moore v. Allen, 72 Miss. 273, 16 So. 600, 1894 Miss. LEXIS 105 (Miss. 1894).

2. Notice of sale sufficient.

Although the Internal Revenue Service was correct that the company failed to meet its statutory duty to provide notice of the non-judicial foreclosure sale under 26 U.S.C.S. § 7425(c)(1), there was nothing in the record to suggest that the error was in any way wilful; as for the company’s efforts to market the property prior to obtaining it in the sale, there was no dispute that the company strictly followed Mississippi statutory law and published the Notices of Foreclosure Sale for four consecutive weeks pursuant to Miss. Code Ann. §13-3-1 et seq., and it was not enough for the Internal Revenue Service (IRS) to simply claim that the company acted wilfully with respect to the sales. Moreover, although the IRS demonstrated a mistake, there was no evidence of a wilful act that transgressed equitable standards of conduct; therefore, as a matter of law, the company could rely on the equitable presumption against merger, its liens in the subject properties did not merge with legal title, and it maintained liens superior to the IRS’s tax liens as to the subject properties. 2009 U.S. Dist. LEXIS 105390.

Cross References —

Constitution provision for style of process, see Miss. Const. Art. 6, § 169.

Criminal offense of resisting authorized person attempting to serve process, see §97-9-75.

Criminal offense of forgery of process, see §97-21-35.

Process for arrest on an indictment against a natural person, see §99-9-1.

Issuance of process when an indictment is found against corporation, see §99-9-3.

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

ALR.

Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person. 37 A.L.R.2d 928.

Am. Jur.

62 Am. Jur. 2d (Rev), Process §§ 63, 64 et seq.

CJS.

72 C.J.S., Process §§ 17, 18 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

JUDICIAL DECISIONS

1. In general.

2. Formal requisites.

3. Issuance of process.

1. In general.

This section [Code 1942, § 1844] has no application to newspaper notices given by a board of supervisors to the public that equalized tax rolls are ready for inspection. Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140, 1948 Miss. LEXIS 325 (Miss. 1948).

The term “process,” within the meaning of the section [Code 1942, § 1844], stipulating that all process, except where otherwise provided, shall be issued and signed by the clerk of the court, includes the ordinary warrant for arrest, and certainly so when taken in connection with the section opening with the sentence that “the process for arrest on an indictment shall be a capias,” etc. Cooper v. State, 193 Miss. 672, 10 So. 2d 764, 1942 Miss. LEXIS 156 (Miss. 1942).

This section [Code 1942, § 1844] was not applicable to require a seal of the court to be affixed to a printed notice to taxpayers of validation proceedings in connection with the issuance of bonds for the construction or purchase of a municipal electric plant, since the process referred to in this section [Code 1942, § 1844] is not a newspaper notice to taxpayers such as is required under Code of 1930, § 313 (Code 1942, § 4314). Mississippi Power & Light Co. v. Batesville, 187 Miss. 737, 193 So. 814, 1940 Miss. LEXIS 247 (Miss. 1940).

This section [Code 1942, § 1844] does not require a seal to be affixed to notices by the board of supervisors to taxpayers of tax assessments, since the statute requiring the seal to be upon process refers to process addressed to individuals and not publication of a general notice by a board of supervisors to the public or a part thereof not specifically named, the object of the statute as to seal being to advise the party upon whom the writ is to be served that its authenticity is genuine. Mullins v. Lyle, 183 Miss. 297, 183 So. 696, 1938 Miss. LEXIS 243 (Miss. 1938).

This statute has no application to process issued by justice of the peace, the justice of the peace not being required or authorized to have a seal. Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924).

This section [Code 1942, § 1844] is not applicable to notices in disbarment proceedings. Ex parte Cashin, 128 Miss. 224, 90 So. 850, 1922 Miss. LEXIS 109 (Miss. 1922).

In a disbarment proceeding reasonable notice so as to prevent injustice is all that is required. Ex parte Cashin, 128 Miss. 224, 90 So. 850, 1922 Miss. LEXIS 109 (Miss. 1922).

2. Formal requisites.

A writ of garnishment is not rendered ineffective by an erroneous recital that judgment had been rendered in county court when in fact it was in circuit court, where it was issued under the signature of the clerk of the circuit court, bore its seal, was for an amount in excess of county court’s jurisdiction, and was returnable on a date when the circuit court term, and not that of the county court, would begin. Mid-South Pipeline Contractors, Inc. v. Citizens Nat'l Bank, 239 Miss. 621, 124 So. 2d 697, 1960 Miss. LEXIS 331 (Miss. 1960).

Sealing of a writ of execution is requisite to its validity. W. T. Rawleigh Co. v. Howell, 196 Miss. 489, 18 So. 2d 134, 1944 Miss. LEXIS 218 (Miss. 1944).

Location of seal is not important in effecting authentication. W. T. Rawleigh Co. v. Howell, 196 Miss. 489, 18 So. 2d 134, 1944 Miss. LEXIS 218 (Miss. 1944).

Mere fact that the seal had been placed upon a writ of execution elsewhere than upon the face of the writ proper, such as upon the unprinted margin or upon that part of the document utilized to detail accrued costs, does not render it invalid. W. T. Rawleigh Co. v. Howell, 196 Miss. 489, 18 So. 2d 134, 1944 Miss. LEXIS 218 (Miss. 1944).

Affixing clerk’s seal to writ of execution, consisting of printed form upon single sheet, the right half of which contained the writ proper and the left half an itemized cost bill, at the lower lefthand corner of the part containing the cost bill instead of upon that part of the writ proper, sufficiently satisfied this section [Code 1942, § 1844].W. W. T. Rawleigh Co. v. Howell, 196 Miss. 489, 18 So. 2d 134, 1944 Miss. LEXIS 218 (Miss. 1944).

Although the original subpoena has no seal, after thirty years, in a collateral attack, the law presumes the execution of a proper subpoena. McAllum v. Spinks, 129 Miss. 237, 91 So. 694, 1922 Miss. LEXIS 13 (Miss. 1922).

All process of the court should bear a seal or should show there is no seal or it will be bad. Burton v. Cramer, 123 Miss. 848, 86 So. 578, 1920 Miss. LEXIS 87 (Miss. 1920); McAllum v. Spinks, 129 Miss. 237, 91 So. 694, 1922 Miss. LEXIS 13 (Miss. 1922).

Process without the seal of the court, or if there be no seal without a statement of that fact, is bad. Pharis v. Conner, 11 Miss. 87, 1844 Miss. LEXIS 48 (Miss. 1844).

3. Issuance of process.

The fact that a capias for arrest on a misdemeanor charge was issued on the affidavit of the county prosecuting attorney, by the clerk of the county court without any order therefor from the county judge did not render it invalid, or avoid jurisdiction, by the court over the person of the defendant, since, inasmuch as the affidavit of the county prosecuting attorney took the place of an indictment in the circuit court, the process on the charge of misdemeanor so made was a capias to be issued by the clerk of the county court. Cooper v. State, 193 Miss. 672, 10 So. 2d 764, 1942 Miss. LEXIS 156 (Miss. 1942).

This section [Code 1942, § 1844], while it applies to the clerks of all courts, applies only as to process issuing out of the courts of which they are clerks, and vests no authority in a clerk of the circuit court to issue a warrant for the arrest of a person charged with the commission of a crime by an affidavit lodged with him. Martin v. State, 190 Miss. 32, 199 So. 98, 1940 Miss. LEXIS 188 (Miss. 1940).

If the process be issued by another, with the clerk’s consent in his name, it is sufficient. Barry v. Gamble, 44 U.S. 32, 11 L. Ed. 479, 1845 U.S. LEXIS 417 (U.S. 1845).

Cross References —

Power of chancery court to issue summons, see §9-5-85.

Notification and request for interpreter for deaf person following receipt of notice for appearance, see §13-1-305.

Subpoena of witnesses generally, see §13-3-93.

For the rule governing service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Service of summons, see Uniform Rule of Procedure for Justice Court 2.04.

OPINIONS OF THE ATTORNEY GENERAL

A sheriff may hire an individual to serve process on a fee basis. McWilliams, Nov. 14, 1997, A.G. Op. #97-0711.

A summons for a replevin hearing wherein the property is not immediately seized may be served by placing a true copy on the door of the defendant’s usual place of abode. Parker, May 3, 2002, A.G. Op. #02-0225.

A constable may serve a summons for a replevin by any of the means set forth in Section 13-3-5; if the constable is unable to determine whether or not the defendant is in possession of the property described in the declaration, he should note such on the return. Enlow, Nov. 15, 2002, A.G. Op. #02-0646.

If a constable posts process on the door of a home as allowed by this section and the process is later returned to the court with credible information that the defendant does not live at that address, then the constable is not entitled to a fee for service of process. Davis, Mar. 5, 2004, A.G. Op. 04-0093.

There is no statutory provision allowing for private process servers within the State of Mississippi other than the emergency situation. Process in criminal matters must be served by a constable or sheriff or sheriff’s deputy. Subpoenas may be served by private process servers. Huckaby, Aug. 25, 2006, A.G. Op. 06-0378.

RESEARCH REFERENCES

ALR.

Validity of service of summons or complaint on Sunday or holiday. 63 A.L.R.3d 423.

Am. Jur.

62 Am. Jur. 2d, Process §§ 8, 9.

Complaint, petition, or declaration against sheriff for failure to serve summons, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 31.

Summons, 20 Am. Jur. Pl & Pr Forms (Rev), Process, Forms 12-14.

Summonses, 16 Am. Jur. Pl & Pr Forms, Process, Forms 16:208-16:214.

Complaint against sheriff for failure to serve summons, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Form 18:556.

CJS.

72 C.J.S., Process §§ 6-11.

JUDICIAL DECISIONS

1. In general.

A writ of garnishment is not rendered ineffective by an erroneous recital that judgment had been rendered in county court when in fact it was in circuit court, where it was issued under the signature of the clerk of the circuit court, bore its seal, was for an amount in excess of the county court’s jurisdiction, and was returnable on a date when the circuit court term and not that of the county court would begin. Mid-South Pipeline Contractors, Inc. v. Citizens Nat'l Bank, 239 Miss. 621, 124 So. 2d 697, 1960 Miss. LEXIS 331 (Miss. 1960).

The requisites of a summons in chancery should be complied with in order to authorize a pro confesso. Gulf & S. I. R. Co. v. F. L. Riley Mercantile Co., 139 Miss. 158, 104 So. 81, 1925 Miss. LEXIS 136 (Miss.), writ of error dismissed, 269 U.S. 597, 46 S. Ct. 120, 70 L. Ed. 432, 1925 U.S. LEXIS 293 (U.S. 1925).

A judgment by default, while not void, is erroneous where the return-day named in the summons is prior to the date of service of summons. T. A. Howard Lumber Co. v. Hopson, 136 Miss. 237, 101 So. 363, 1924 Miss. LEXIS 121 (Miss. 1924).

A case where a bank is bound by service of summons although the summons was intended for a bank of like name which was defunct. Campbell & Campbell v. Pickens Bank, 134 Miss. 559, 99 So. 378, 1924 Miss. LEXIS 305 (Miss. 1924).

There must be a valid service of process, an appearance of defendant or a waiver of process before there can be a valid judgment. Boutwell v. Grayson, 118 Miss. 80, 79 So. 61, 1918 Miss. LEXIS 54 (Miss. 1918), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

The writ should show in proper case that partition as well as injunction was sought. Field v. Junkin, 99 Miss. 834, 56 So. 172, 1911 Miss. LEXIS 258 (Miss. 1911).

The failure of a writ to apprise the defendant of the nature of the suit does not render it void. Guess v. Smith, 100 Miss. 457, 56 So. 166, 1911 Miss. LEXIS 5 (Miss. 1911).

The service of an injunction writ under a bill to restrain the commission of trespasses and demanding damages and the statutory penalty for cutting trees is not a summons and does not authorize a decree pro confesso. Sheffield v. Friedberg, 84 Miss. 188, 36 So. 242, 1904 Miss. LEXIS 22 (Miss. 1904).

Editor’s Notes —

Former §13-3-7 provided that the names of all defendants who reside in the county where the process issues shall be included in the same summons.

Former §13-3-9 provided that if any of the defendants reside in different counties from that in which the suit is brought, original process may issue at the same time to each county in which any of the defendants reside, and the clerk shall indorse on each writ issued to another county than that in which the suit is brought the names of the defendants upon whom it is to be served, and that it is a duplicate of a writ issued to the other county for the same cause of action and the sheriff shall execute and return such process as in other cases, and under the same penalties.

Former §13-3-11 provided for when the summons, in actions in circuit court, shall be made returnable and when it shall be executed.

Former §13-3-13 specified when the summons was returnable and when it was to be executed in suits in chancery.

Cross References —

Issuance of duplicate and alias writs by an officer granting an attachment, see §11-33-21.

Return of alias where first process has been executed, see §13-3-75.

Issuance of an alias where a capias has been returned unexecuted, see §99-9-1.

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 115-118.

62 Am. Jur. 2d (Rev), Process §§ 105, 136-139, 143, 149, 150, 183 et seq.

Alias summons, 16 Am. Jur. Pl & Pr Forms, Process, Form 16:223.

CJS.

33 C.J.S., Executions §§ 119-130.

72 C.J.S., Process § 29.

JUDICIAL DECISIONS

1. In general.

When an action has been begun in accordance with the law of venue in personal actions and the defendant shall not be found, the plaintiff may have an attachment under this section [Code 1942, § 1850], but the record must properly show that the action was rightfully commenced, and that defendant cannot be “found” in the county. McNair v. Kaiser, 62 Miss. 783, 1885 Miss. LEXIS 147 (Miss. 1885).

Cross References —

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process § 134.

JUDICIAL DECISIONS

1. In general.

An amended bill or bill of revivor in chancery is not required under this statute [Code 1942, § 1851]. Mitchell v. Conner, 42 Miss. 550, 1869 Miss. LEXIS 30 (Miss. 1869).

Editor’s Notes —

Former §13-3-19 provided for service of summons by publication for nonresident or absent defendant.

Former §13-3-21 specified the duties of clerk when service of summons was by publication.

Former §13-3-23 provided that publication could be dispensed with if summons served on the absent party.

Cross References —

Summons by publication of the heirs of an intestate deceased in an action brought by those praying to be declared heirs of the deceased, see §91-1-29.

Amendment of an indictment where the name of an unknown defendant later becomes known, see §99-7-25.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process § 182.

20 Am. Jur. Pl & Pr Forms (Rev), Process, Forms 162-164, 181, 182, 191-193, 201 (affidavit in support of motion for service of process by publication).

16 Am. Jur. Pl & Pr Forms, Process, Forms 16:325-16:341 (affidavit for publication of summons).

CJS.

72 C.J.S., Process § 83.

Cross References —

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process §§ 211-213, 138, 143 et seq.

62 Am. Jur. 2d (Rev), Process §§ 222 et seq.

Affidavit in support of motion for service of process by publication, 20 Am. Jur. Pl & Pr Forms (Rev), Process, Forms 162-164, 181, 182, 191-193, 201, 282.

Affidavit for publication of summons, 16 Am. Jur. Pl & Pr Forms, Process, Forms 16:325-16:341.

CJS.

72 C.J.S., Process §§ 81 et seq.

JUDICIAL DECISIONS

1. In general.

A judgment in personam cannot be rendered against a foreign corporation on publication of process. Columbia Star Milling Co. v. Brand, 115 Miss. 625, 76 So. 557, 1917 Miss. LEXIS 241 (Miss. 1917).

Editor’s Notes —

Former §13-3-29 provided for posting as a substitute for service by publication.

Editor’s Notes —

The preamble to Chapter 479 of the Laws of 1976 reads as follows:

“Whereas, it is in the public interest of the people of this state to assure that legal notices required by law to be published in a newspaper in this state are published in newspapers having numerically substantial, extensive and widespread circulation to bona fide paying subscribers, to the end that effective general notice to the public is given by such publication; now, therefore,

Be it enacted by the legislature of the State of Mississippi:”

Amendment Notes —

The 2004 amendment inserted “including foreclosure sale notices as described in Section 89-1-55” following “publish legal notices” in (4).

Cross References —

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

OPINIONS OF THE ATTORNEY GENERAL

All qualifications of statute are equally important and newspaper must meet all qualifications to be qualified to publish legal notices. Haque, May 22, 1990, A.G. Op. #90-0336.

A newspaper with a principal public business office in a county in Mississippi is deemed to be published in Mississippi regardless of the fact it can be purchased only as part of a Tennessee newspaper. Chamberlin, Feb. 19, 2002, A.G. Op. #02-0033.

The fact that a subscription to a subsidiary Mississippi newspaper cannot be effected without a subscription to the Tennessee newspaper is immaterial to whether the Mississippi newspaper under the statute; similarly, the fact that the purchase price of a newspaper and the purchase price of the subsidiary Mississippi newspaper are part of a single price package is also immaterial. Chamberlin, Feb. 19, 2002, A.G. Op. #02-0033.

If a school district has either made a finding of fact that its current publisher is qualified under this section or has not made a finding of fact that it fails to meet the requirements and provisions of this section, there is no statutory requirement that the school district respond to a request by another newspaper to be designated as the official newspaper of the school district for legal notices. Wallace, January 15, 1999, A.G. Op. #98-0804.

As between qualified newspapers, a newspaper with a known office of publication within the municipality must be selected to publish the legal notices of that municipality. Edens, July 23, 1999, A.G. Op. #99-0289.

The qualifications of the statute are equally important, and a newspaper must meet all the qualifications to publish legal notices. Dickerson, Dec. 3, 1999, A.G. Op. #99-0630.

Notice must be published in a newspaper that is numbered consecutively. Chamberlin, Dec. 13, 2002, A.G. Op. #02-0678.

If a newspaper was established and continued uninterrupted publication for twelve or more months and is now numbered consecutively, the fact that it was not numbered consecutively during the entire twelve or more months would not be material. Chamberlin, Dec. 13, 2002, A.G. Op. #02-0678.

The best definition of the phrase “numbered consecutively” is found in its common usage: a series of items or events which are numbered beginning with the number one and continuing in unbroken, numerical sequence. Chamberlin, Dec. 13, 2002, A.G. Op. #02-0678.

Municipal governing authorities may require newspapers submitting bids for the municipality’s publishing contract to provide evidence of compliance with Section 13-3-31. Taylor, Oct. 27, 2006, A.G. Op. 06-0530.

RESEARCH REFERENCES

ALR.

Sufficiency of affidavit as to due diligence in attempting to learn whereabouts of party to litigation, for the purpose of obtaining service by publication. 21 A.L.R.2d 929.

Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service. 46 A.L.R.2d 1364.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

62 Am. Jur. 2d (Rev), Process § 236.

CJS.

72 C.J.S., Process § 94.

Law Reviews.

Abbott, Some Basic Priority Problems in a Land Development Project in Mississippi with Emphasis Upon Power of Sale Foreclosure Procedures. 50 Miss. L. J. 665, September 1979.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss. L.J. 49, March, 1985.

JUDICIAL DECISIONS

1. In general.

2. General circulation requirement.

1. In general.

City Board of Aldermen (Board) never concluded that the publisher was unqualified, and to the contrary, the Board expressly stated in its motion that no determination could be made whether the publisher was qualified or in compliance with Miss. Code Ann. §13-3-31 since it did not receive any circulation information; the circuit court properly held that the determining issue in this case, however, was not that of circulation figures, but it was instead the lower bid submitted by the newspaper. Stone County Publ., Inc. v. Prout, 18 So.3d 300, 2009 Miss. App. LEXIS 341 (Miss. Ct. App. 2009).

Judgment determining that appellee’s publication was a newspaper qualified to publish legal notices in DeSoto County within the meaning of Miss. Code Ann. §13-3-31 was affirmed, where appellee presented sufficient evidence to sustain the trial court’s finding that the publication’s principal public business office was in DeSoto County. The publication had more than 20 employees in Southaven, a city in De Soto County, including a general manager, editor, advertising staff, advertising manager, advertising sales staff, a deputy editor, several reporters, clerical staff, and circulation staff consisting of a district manager and one or two field representatives. DeSoto Times Today v. Memphis Publ. Co., 991 So. 2d 609, 2008 Miss. LEXIS 455 (Miss. 2008).

State supreme court reversed the denial of a summary judgment motion filed by bank and trustee as the city where the newspaper was published encompassed two different counties and thus, the newspaper was deemed to be published in both counties under Miss. Code Ann. §13-3-31(4) for purposes of the publication of foreclosure sale notices. Warren v. Johnston, 908 So. 2d 744, 2005 Miss. LEXIS 488 (Miss. 2005).

Trial court misapplied Miss. Code Ann. §13-3-31 in finding that the successful bidder’s newspaper section was not adequate under §13-3-31 for the publication of legal notices, because it was not published every day, it was not identified by letter like other sections, and it contained different information depending upon its destination; § 13-3-31 did not determine when a section of the newspaper was treated as a separate and independent newspaper, and instead it simply defined a newspaper and provided the criteria that a newspaper had to satisfy in order to publish legal notices. Gannett River States Publ'g Corp. v. Jackson Advocate, 856 So. 2d 247, 2003 Miss. LEXIS 350 (Miss. 2003).

City council did not err in finding that the successful bidder satisfied the requirements under Miss. Code Ann. §13-3-31 when it determined that the successful bidder’s proposal to publish the legal notices in a section of its newspaper that was published once a week was a qualified bid; the section of the paper at issue was sold with the newspaper, it was a section of the paper despite not being identified by letter like the other sections, and it did not matter that the section was only included in papers sold in the city, as notices only had to be published there. Gannett River States Publ'g Corp. v. Jackson Advocate, 856 So. 2d 247, 2003 Miss. LEXIS 350 (Miss. 2003).

Whether the publication of notice to creditors required by §91-7-145 is made in an appropriate newspaper brings into bearing §13-3-31, which sets forth the requirements a newspaper must meet in order to qualify as a valid publisher of legal notices. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Contention that notice to creditors was not published in a newspaper which qualified as a valid publisher of legal notices, which was not raised in the court below, would not be considered by the Supreme Court on appeal. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Municipal authorities cannot let a contract to publish legal notices to a newspaper not qualified under §13-3-31, regardless of whether or not it is the lowest bidder; thus a city council’s order dividing the publication of its legal notices equally among three newspapers was null and void where it was subsequently determined that one of the newspapers was not legally qualified; a subsequent order of the council awarding the contract to the other two newspapers was not arbitrary, capricious, discriminatory, illegal or without substantial basis and the circuit court thus erred in setting it aside. City of Jackson v. Capital Reporter Publishing Co., 373 So. 2d 802, 1979 Miss. LEXIS 2300 (Miss. 1979).

Object of statute is to avoid publication of important notices in newspapers so recently established as not to assure general notice to the public. Elliott v. Board of Sup'rs, 182 Miss. 631, 179 So. 344, 180 So. 72, 1938 Miss. LEXIS 132 (Miss. 1938).

Order of supervisors excluding beer and wine pursuant to popular vote held not invalid for failure to recite that newspaper in which notice of election published had been in existence for more than one year prior to publication, since such recital is not a jurisdictional requirement. Elliott v. Board of Sup'rs, 182 Miss. 631, 179 So. 344, 180 So. 72, 1938 Miss. LEXIS 132 (Miss. 1938).

Proof of publication of notice of election, held not invalid because of failure to recite newspaper had been established for twelve months prior to first publication, in view of exception as to discontinuance of any newspaper in county qualified to publish legal notices. Elliott v. Board of Sup'rs, 182 Miss. 631, 179 So. 344, 180 So. 72, 1938 Miss. LEXIS 132 (Miss. 1938).

2. General circulation requirement.

The statute does not require that a newspaper break down its subscription base by zip code in order to demonstrate that it is a newspaper of general circulation. Sunland Publ. Co. v. City of Jackson, 710 So. 2d 879, 1998 Miss. LEXIS 138 (Miss. 1998).

Although a newspaper may be directed towards one particular area, locality or group within a relevant area, as long as that newspaper publishes news, human interest, advice columns, sports, arts, etc., which are of interest to the general public, its distribution is not entirely limited to one geographic area, is available to anyone who wishes to subscribe, and there exists paid subscribers, the newspaper is one of general circulation. Sunland Publ. Co. v. City of Jackson, 710 So. 2d 879, 1998 Miss. LEXIS 138 (Miss. 1998).

A finding that three members of the city council had not personally seen a particular newspaper in their neighborhoods was insufficient to support a determination that the newspaper did not meet the general circulation requirement. Sunland Publ. Co. v. City of Jackson, 710 So. 2d 879, 1998 Miss. LEXIS 138 (Miss. 1998).

Cross References —

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

OPINIONS OF THE ATTORNEY GENERAL

If, as a matter of fact, a newspaper was not qualified pursuant to this section to publish legal notices and publishing legal notices prior to July 1, 1976, then no presumption of validity of legal notices published therein could attach thereto. Wallace, January 15, 1999, A.G. Op. #98-0804.

Editor’s Notes —

Former §13-3-33 specified how a summons was to be executed.

Former §13-3-35 provided form for the sheriff’s return on original process.

Cross References —

Jurisdiction of the circuit court to hear and determine all motions against sheriffs for money collected and not paid over to party entitled to same, see §9-7-89.

Showing the return of any officer serving process to be untrue, see §13-3-87.

Duty of the sheriff to execute and return process, see §19-25-37.

Liability of the sheriff for failing to execute or return process, see §19-25-37.

Liability of a sheriff for failing to return any execution, see §19-25-41.

Liability of the sheriff for making false return on any process, see §19-25-47.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process § 286.

CJS.

72 C.J.S., Process §§ 105, 106 et seq.

JUDICIAL DECISIONS

1. In general.

The penalty provided under this section [Code 1942, § 1862] for a failure of the sheriff to note on the execution the date of its receipt, was not recoverable against the sheriff and his sureties where the execution plaintiffs suffered no loss or injury by reason thereof and were not “aggrieved.” McInnis v. Parker, 183 Miss. 648, 184 So. 418, 1938 Miss. LEXIS 277 (Miss. 1938).

List of special venire and copy of the indictment need not be served on accused by sheriff. Ivey v. State, 154 Miss. 60, 119 So. 507, 1928 Miss. LEXIS 198 (Miss. 1928).

The officer’s return may be amended after judgment. H. Lupkin & Sons v. Russell, 108 Miss. 742, 67 So. 185, 1914 Miss. LEXIS 267 (Miss. 1914).

An officer’s return of service of a summons which merely recites that the writ was on a certain day “executed by personal service” on the defendant is insufficient. The return should state the facts. Dogan v. Barnes, 76 Miss. 566, 24 So. 965, 1898 Miss. LEXIS 121 (Miss. 1898).

A defective return attempting to show personal service of process is not equivalent to the general return “executed” heretofore authorized under Code 1880, § 1528. Dogan v. Barnes, 76 Miss. 566, 24 So. 965, 1898 Miss. LEXIS 121 (Miss. 1898).

Editor’s Notes —

Former §13-3-39 provided for the execution and return of process from courts of the separate district in Harrison County.

Cross References —

Notice to attorney at law being as effectual as if made to his client, see §11-49-11.

Service of process upon a corporation, see §13-3-49.

Service of process upon nonresident doing business within the state, see §13-3-57.

Service of process upon nonresident motorist, see §13-3-63.

Notification given foreign insurance company when process is served upon insurance commissioner as attorney for insurance company, see §83-5-11.

For the rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Requirement that corporate plaintiffs be represented by counsel, and circuit court rules concerning the filing and service of pleadings and motions, see Miss. Uniform Rules of Circuit and County Court Practice 1.06, 2.06.

RESEARCH REFERENCES

Am. Jur.

19 Am. Jur. 2d (Rev), Corporations §§ 1897-1899, 1901 et seq.

36 Am. Jur. 2d, Foreign Corporations §§ 476 et seq.

59A Am. Jur. 2d, Partnership §§ 468-487.

4 Am. Jur. Proof of Facts, Doing Business, Proof No. 1.

CJS.

72 C.J.S., Process §§ 53, 54, 76.

Lawyers’ Edition.

State regulation of judicial proceedings as violating commerce clause (Art. I, § 8, cl 3) of Federal Constitution – Supreme Court cases. 100 L. Ed. 2d 1049.

Editor’s Notes —

Former §13-3-43 provided for service when defendant was an infant or an infant was a codefendant.

Former §13-3-45 provided for service when defendant was of unsound mind.

Former §13-3-47 provided for service when defendant was a county, city, town, or village.

Cross References —

Service of process on one carrying on business in state by or through trustee or attorney in fact, see §13-3-41.

Issuance and execution of process when an indictment is found against a corporation, see §99-9-3.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Circuit court filing and service requirements for pleadings and motions, see Miss. Uniform Rule of Circuit and County Court Practice 2.06.

OPINIONS OF THE ATTORNEY GENERAL

A scire facias may be personally served on a limited surety agent, and that process will be binding on the insurer represented by that agent. Johnson, November 6, 1998, A.G. Op. #98-0672.

A defendant corporation may be served by serving any of the persons enumerated in the statute, the president or other head of the corporation, the cashier, secretary, treasurer, clerk, or agent of the corporation; if garnishment papers are properly served on one of the required persons, the corporation is considered properly served even if the papers are not forwarded to the payroll department. Aldridge, Feb. 1, 2002, A.G. Op. #02-0031.

A defendant corporation may be served by serving any of the persons enumerated in Section 13-3-49. A defendant does not have the option of “refusing service.” Refusing to accept service is equal to being served. Case, June 22, 1995, A.G. Op. #95-0325.

RESEARCH REFERENCES

ALR.

Foreign corporation’s purchase within state of goods to be shipped into other state or country as doing business within state for purposes of jurisdiction or service of process. 12 A.L.R.2d 1439.

Service of process upon dissolved domestic corporation in absence of express statutory direction. 75 A.L.R.2d 1399.

Am. Jur.

19 Am. Jur. 2d (Rev), Corporations §§ 1897-1899, 1901 et seq.

36 Am. Jur. 2d (Rev), Foreign Corporations §§ 476 et seq.

62 Am. Jur. 2d, Process § 129.

CJS.

19 C.J.S., Corporations §§ 802 et seq.

72 C.J.S., Process §§ 53, 54.

JUDICIAL DECISIONS

1. In general.

2. Service on railroad company.

3. Service on insurance company.

1. In general.

Where city’s process server placed summons and complaint for contract action in a box for registered agent of utility because the agent’s office was closed for holidays, service was not effected under Miss. R. Civ. P. 4(d)(4) and Miss. Code Ann. §13-3-49 until five days later when the offices reopened and the papers could be processed and sent to the utility. Thus, filing of the utility’s removal notice was timely under 28 U.S.C.S. § 1446(b). City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 2005 U.S. App. LEXIS 21698 (5th Cir. Miss. 2005).

The Mississippi statutes providing for the method of services on a resident or a qualified foreign corporation, the “doing business” statute, and the statute providing for substituted service on any corporation doing business in the state, must be read together, and such reading leads to the inescapable conclusion that effective process under these statutes presupposes a factual determination that the foreign corporation is doing business in the state of Mississippi. Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1969 U.S. Dist. LEXIS 13680 (D. Miss. 1969).

Summons was not effective where, at time received, there was no legal authority for service to be made by mail. Western Tar Products Corp. v. Alton Sheet Metal & Roofing Works, Inc., 515 So. 2d 932, 1987 Miss. LEXIS 2892 (Miss. 1987).

An employee of a corporation whose duties are generally those of a stenographer and receptionist is not an “agent” or “clerk” of the corporation within the meaning of this section [Code 1942, § 1866], and the service upon her of a writ of garnishment issued against the corporation will not suffice to support a judgment against the corporation as garnishee where the writ was not brought to the attention of any of the corporation’s officers or agents. First Jackson Sec. Corp. v. B. F. Goodrich Co., 253 Miss. 519, 176 So. 2d 272, 1965 Miss. LEXIS 1010 (Miss. 1965).

This statute presupposes a doing of business in Mississippi in the case of a foreign corporation. Alabama, T. & N. R. Co. v. Howell, 244 Miss. 157, 141 So. 2d 242, 1962 Miss. LEXIS 433 (Miss. 1962).

Where a copy of summons and complaint in a suit against a domestic corporation was delivered to an individual for delivery to the president of the corporation and this individual was a clerk who later delivered the process to the president, this did not constitute a personal service on the defendant corporation. Hyde Constr. Co. v. Elton Murphy-Walter Travis, Inc., 227 Miss. 615, 86 So. 2d 455, 1956 Miss. LEXIS 733 (Miss. 1956).

Suit having been filed and process for defendant having been issued promptly by a clerk, a suit was pending which tolled running of statute of limitations though process was served on plantation manager of defendant corporation and not on its designated agent for receiving of service of process. Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So. 2d 812, 1948 Miss. LEXIS 341 (Miss. 1948).

Service of process by person delivering copy of writ to president of corporation held not defective so as to make judgment void on collateral attack. McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731, 1933 Miss. LEXIS 82 (Miss. 1933).

This statute must be complied with substantially in service on a corporation or it will be void. Anderson Mercantile Co. v. Cudahy Packing Co., 127 Miss. 301, 90 So. 11, 1921 Miss. LEXIS 225 (Miss. 1921).

Principal place of business is synonymous with domicile. Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907, 1916 Miss. LEXIS 360 (Miss. 1916).

A return of summons against a corporation where served on an agent should show that the party was an agent. Watkins Machine & Foundry Co. v. Cincinnati Rubber Mfg. Co., 96 Miss. 610, 52 So. 629, 1910 Miss. LEXIS 211 (Miss. 1910).

A return of personal service by delivery of a copy of the summons to one described as the agent of a corporation, being good on its face, objection thereto should be made by plea. Lamb v. Russel, 81 Miss. 382, 32 So. 916, 1902 Miss. LEXIS 122 (Miss. 1902).

2. Service on railroad company.

Service of summons on a foreign railroad company’s station agent is sufficient to bring it into court. Illinois C. R. Co. v. McDaniel, 246 Miss. 600, 151 So. 2d 805, 1963 Miss. LEXIS 486 (Miss. 1963).

In an attachment suit brought in chancery court by an Alabama citizen to recover damages from an Alabama corporation for personal injuries received as a result of a railroad crossing accident in Alabama, and to attach funds in the hands of a Mississippi corporation, where the defendant corporation owned no property or did no business in Mississippi, service of process upon an employee designated as a superintendent of the defendant corporation but who was employed by another corporation, and received no compensation from defendant corporation, was not effective to confer territorial jurisdiction over the defendant corporation. Alabama, T. & N. R. Co. v. Howell, 244 Miss. 157, 141 So. 2d 242, 1962 Miss. LEXIS 433 (Miss. 1962).

Service of summons on a station agent of a railroad company is binding and this whether its principal place of business is in the county in which the suit is brought or not. Alabama & V. R. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 1891 Miss. LEXIS 170 (Miss. 1891).

Where the declaration, summons, judgment by default and execution were against “Alabama & Vicksburg Railroad Company,” “The Alabama & Vicksburg Railway Company,” the real corporation, whose station agent was served with the summons, having failed to appear at the return term and to object to the misnomer, is bound by the judgment. Alabama & V. R. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 1891 Miss. LEXIS 170 (Miss. 1891).

3. Service on insurance company.

Under the provisions of this section [Code 1942, § 1866], process in suits against insurance companies may be served on any agent of the defendant. Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 So. 183, 1897 Miss. LEXIS 137 (Miss. 1897).

Editor’s Notes —

Former §13-3-51 provided for service when defendant was a prisoner.

Cross References —

Liability of executors and administrators to be sued in personal actions which might have been maintained against the deceased, see §91-7-233.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Circuit court filing and service requirements for pleadings and motions, see Miss. Uniform Rule of Circuit and County Court Practice 2.06.

Cross References —

Circuit court filing and service requirements for pleadings and motions, see Miss. Uniform Rule of Circuit and County Court Practice 2.06.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

ALR.

What amounts to doing business in a state within statute providing for service of process in action against nonresident natural person or persons doing business in state. 10 A.L.R.2d 200.

Am. Jur.

59A Am. Jur. 2d (Rev), Partnership §§ 468-478.

CJS.

68 C.J.S., Partnership §§ 252-256.

72 C.J.S., Process § 76.

JUDICIAL DECISIONS

1. In general.

2. Partnership property separate from partner’s personal property.

1. In general.

In action on partnership notes, one partner held not indispensable party since obligation joint and several and judgment against some would not affect plaintiff’s right against others unless satisfaction obtained. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

A judgment against all of several partners, when only one has been summoned, is erroneous as to those not served, unless it appear by the return or elsewhere in the record that those not summoned were nonresident or could not be found. Tabler, Crudup & Co. v. Bryant, 62 Miss. 350, 1884 Miss. LEXIS 79 (Miss. 1884).

2. Partnership property separate from partner’s personal property.

Judgment of the district court in a case to determine ownership of cattle, granting summary judgment for the buyer of the cattle on the ground that the apparent seller was the owner and passed title to the buyer free of a lien, was reversed and remanded, because a fact issue existed on the ownership of the apparent seller; plaintiff bank’s and defendant bank’s security interests properly perfected on an individual and his property, attached to the cattle only if the apparent seller was a sole proprietorship of the individual, but if the apparent seller operated as a partnership or limited liability company, the individual did not have sufficient rights in the cattle to encumber them. Peoples Bank v. Bryan Bros. Cattle Co., 504 F.3d 549, 2007 U.S. App. LEXIS 24018 (5th Cir. Miss. 2007).

Cross References —

For another section derived from same 1942 code section, see §11-11-11.

Service of process when defendant is a nonresident motorist, see §13-3-63.

Service of process upon carnivals, circuses, and fairs doing business in state but not permanently domiciled therein, see §§75-75-1 and75-75-3.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Circuit court filing and service requirements for pleadings and motions, see Miss. Uniform Rule of Circuit and County Court Practice 2.06.

OPINIONS OF THE ATTORNEY GENERAL

The statute does not conflict with Rule 2.04 of the Uniform Rules of Procedure for Justice Court and, therefore, it may be used to serve out-of-state defendants with process of the justice courts by a private process server. Aldridge, July 17, 1998, A.G. Op. #98-0377

RESEARCH REFERENCES

ALR.

What constitutes doing business within the state by a foreign newspaper corporation. 38 A.L.R.2d 747.

Venue of action against nonresident motorist served constructively under statute in that regard. 38 A.L.R.2d 1198.

Place or type of motor vehicle accident as affecting applicability of statute providing for constructive or substituted service upon nonresident. 73 A.L.R.2d 1351.

Holding directors’, officers’, stockholders’, or sales meetings or conventions in a state by foreign corporation as doing business or otherwise subjecting it to service of process and suit. 84 A.L.R.2d 412.

Manner of service of process upon foreign corporation which has withdrawn from state. 86 A.L.R.2d 1000.

Statutory service on nonresident motorists: return receipts. 95 A.L.R.2d 1033.

Applicability, to actions not based on products liability, of state statutes or rules of court predicating in personam jurisdiction over foreign manufacturers or distributors upon use of their goods within state. 20 A.L.R.3d 957.

In personam jurisdiction over nonresident director of forum corporation under long-arm statutes. 100 A.L.R.3d 1108.

Long-arm statutes: in personam jurisdiction over nonresident based on ownership, use, possession, or sale of real property. 4 A.L.R.4th 955.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

Products liability: personal jurisdiction over nonresident manufacturer of component incorporated in another product. 69 A.L.R.4th 14.

In personam jurisdiction, in libel and slander action, over nonresident who mailed allegedly defamatory letter from outside state. 83 A.L.R.4th 1006.

Execution, outside of forum, of guaranty of obligation under contract to be performed within forum state as conferring jurisdiction over nonresident guarantors under “long arm statute” or rule of forum. 28 A.L.R.5th 664.

Service of Process Via Computer or Fax. 30 A.L.R.6th 413.

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 71, 72, 98 et seq.

59A Am. Jur. 2d, Partnership §§ 468-487.

62 Am. Jur. 2d, Process §§ 159, 160, 162, 164, 165, 167.

12 Am. Jur. Pl & Pr Forms (Rev), Foreign Corporations, Form 18.1 (Motion – To dismiss for lack of jurisdiction).

12 Am. Jur. Pl & Pr Forms (Rev), Foreign Corporations, Form 19.1 (Affidavit-In support of motion to dismiss complaint-Lack of jurisdiction over foreign corporation – Corporation not doing business in state – By president of corporation).

Service of process on foreign corporations, 20 Am. Jur. Pl & Pr Forms (Rev), Process, Forms 261 et seq.

Substituted Service, 16 Am. Jur. Pl & Pr Forms, Process, Form 16:297.

4 Am. Jur. Proof of Facts, Doing Business, Proof No. 1 (doing business).

CJS.

72 C.J.S., Process §§ 70-72 et seq.

Lawyers’ Edition.

State regulation of judicial proceedings as violating commerce clause (Art I, § 8, cl 3) of Federal Constitution – Supreme Court cases. 100 L. Ed. 2d 1049.

Law Reviews.

Note, Jurisdictional Analysis in Commercial Litigation – The Single Contract Case, 7 Miss. C. L. Rev. 87, Fall, 1986.

Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity. 53 Miss. L. J. 1, March 1983.

Symposium on Mississippi Rules of Civil Procedure: Joinder of Claims and Parties – Rules 13, 14, 17 and 18. 52 Miss. L. J. 37, March 1982.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application, generally.

3. What constitutes doing business within state.

4. Non-resident heirs of alleged tortfeasor.

5. Illustrative cases.

1. Validity.

Dismissal of the insured’s action against her insurer in Mississippi for bad faith was improper where there was no personal or subject matter jurisdiction over the insurer, Miss. Code Ann. §13-3-57; the only connection Mississippi had to the lawsuit was that the car accident occurred in Mississippi and the lawsuit was not about the accident. Hogrobrooks v. Progressive Direct, 858 So. 2d 913, 2003 Miss. App. LEXIS 1029 (Miss. Ct. App. 2003).

The long-arm statute was clearly enacted for the benefit of residents only, and it has not been expanded through the process of judicial interpretation to include nonresident plaintiffs not qualified to do business within the state; there is no defect under federal constitutional standards for limiting the long-arm statute to resident plaintiffs, since the state is not obligated to make its courts available to nonresidents, who themselves are not doing business in the state, to sue other nonresidents. American International Pictures, Inc. v. Morgan, 371 F. Supp. 528, 1974 U.S. Dist. LEXIS 12866 (N.D. Miss. 1974).

This section [Code 1942, § 1437] and Code 1942, § 8072 do not violate the due process clause of the Constitution of the United States. Jarrard Motors, Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So. 2d 309, 1959 Miss. LEXIS 517 (Miss. 1959).

If a nonresident is doing such business in the state as would subject him to the jurisdiction of the court and such business is of such nature that it is hazardous or subject to the police powers of the state to be regulated, and the cause of action grows out of such business so done, then the substituted service is good and the statute is constitutional. Davis v. Nugent, 90 F. Supp. 522, 1950 U.S. Dist. LEXIS 3816 (D. Miss. 1950).

There is no denial of due process under the 14th Amendment of the United States Constitution in extending this section [Code 1942, § 1437] to contract, as well as to tort actions, arising out of business or acts done within state. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

Nonresident who engages in business in this state which is subject to state control is subject to suit for damages in this state on cause of action accruing here out of business transacted in this state and is properly brought into court by service of process upon secretary of state in manner provided by Code 1942, § 1438, and statutes so providing do not violate due process or immunities and privileges clauses of federal constitution. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

This statute, as applied to a corporate citizen of another state engaged in levy construction work of large proportions in Mississippi employing many men to operate trucks and other heavy and cumbersome machinery and equipment, is not unconstitutional as denying defendant equal protection of the law, due process of law, or privileges and immunities afforded to residents, or as burdening interstate commerce. Sugg v. Hendrix, 142 F.2d 740, 1944 U.S. App. LEXIS 3496 (5th Cir. Miss. 1944).

Power of state to confer jurisdiction on courts over individual nonresidents by substituted service depends upon whether such enabling statute is a reasonable exercise of the state’s police power to regulate the business of such nonresident, and if the regulation is one for the protection of health, safety and welfare of those within its borders, rather than a mere attempt to extend the jurisdiction of its courts over citizens beyond its borders, the state may properly legislate to that end. Sugg v. Hendrix, 142 F.2d 740, 1944 U.S. App. LEXIS 3496 (5th Cir. Miss. 1944).

2. Construction and application, generally.

After an employee was terminated, and his employers refused to reimburse his expenses, the court did not have personal jurisdiction over the individuals working for the employer as the employee alleged no facts supporting the individuals’ involvement in his tort claims. Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 2014 U.S. Dist. LEXIS 152484 (S.D. Miss. 2014).

In a breach of contract and tortious inference with business relations case that was removed to federal court pursuant to 28 U.S.C.S. § 1446 and in which the court accepted as true a Mississippi company’s assertion that it and a foreign company contemplated that the contract would be performed in part in Mississippi and that the contract was in fact performed in part in Mississippi, the district court had no difficulty concluding that Mississippi’s long-arm statute, Miss. Code Ann. §13-3-57, was satisfied; since the district court also found that the requirements of due process were met, the foreign company’s Fed. R. Civ. P. 12(b)(2) motion to dismiss was denied. Barbour Int'l, Inc. v. Permasteel, Inc., 507 F. Supp. 2d 602, 2007 U.S. Dist. LEXIS 56518 (S.D. Miss. 2007).

In a matter arising out of a high speed chase, which allegedly resulted in decedents’ deaths, neither an Alabama county or that county’s sheriff from Alabama entered upon the highways of Mississippi, involving themselves in efforts to stop the fleeing felons, or in any other way subjected themselves to jurisdiction under Miss. Code Ann. §13-3-63; therefore, the supreme court proceeded with a long-arm analysis to determine if jurisdiction could be conferred upon them under the Mississippi long-arm statute, Miss. Code Ann. §13-3-57, and the supreme court found no minimum contacts, so the county and the sheriff were not subject to personal jurisdiction in Mississippi. City of Cherokee v. Parsons, 944 So. 2d 886, 2006 Miss. LEXIS 583 (Miss. 2006).

To establish the “contract” prong of the Mississippi long-arm statute, Miss. Code Ann. §13-3-57, a plaintiff must show that a nonresident defendant entered into a contract with the plaintiff which has been, or is to be, performed, at least in part, in Mississippi. Durham v. Katzman, 375 F. Supp. 2d 495, 2005 U.S. Dist. LEXIS 17847 (S.D. Miss. 2005).

Trial court erred in denying New York commuter van company’s motion to dismiss for lack of personal jurisdiction under Miss. R. Civ. P. 12(b) in the Mississippi residents’ wrongful death action that arose following an auto accident that occurred in New York because, although the van company was not qualified to do business in Mississippi and, therefore, met the threshold requirement for coverage by the long-arm statute, Miss. Rev. Stat. §13-3-57, there was no evidence in the record to demonstrate that the van company’s actions had brought it under either the contract, tort, or “doing business in” provisions of the long-arm statute. Rockaway Commuter Line, Inc. v. Denham, 897 So. 2d 156, 2004 Miss. LEXIS 1325 (Miss. 2004).

Defendants, by demonstrating that the individuals’ claims against the non-diverse defendants were time-barred, sustained their burden of showing that no reasonable possibility of recovery existed against the non-diverse defendants on the claims raised in the individuals’ original complaint; while the individuals argued that their claims were not time-barred because defendants’ fraudulent concealment tolled the statute of limitations, they were unable to support their fraudulent concealment claim. Thus, the individuals’ motion to remand was denied. White v. City Fin. Co., 277 F. Supp. 2d 646, 2003 U.S. Dist. LEXIS 14205 (S.D. Miss. 2003).

The contract prong of the long-arm statute was satisfied by the allegations of breach of implied warranty of merchantability and the breach of implied warranty of fitness for a particular purpose claims where at least part of the warranty work was performed in the forum state; the misrepresentation claim against the manufacturer was sufficient to support jurisdiction under the tort prong of the long-arm statute because the materials and a representative were sent to the forum state. Jones v. Tread Rubber Corp., 199 F. Supp. 2d 539, 2002 U.S. Dist. LEXIS 9102 (S.D. Miss. 2002).

In an action arising from a contract under which the plaintiff was to sell 80 percent of its oil and gas working interest in an oil and gas field, the plaintiff set out a prima facie case for personal jurisdiction under the contract prong of the statute and, therefore, the district court erred in dismissing the defendant for lack of personal jurisdiction where the plaintiff argued that a codefendant entered into a contract with the plaintiff on behalf of itself and the defendant, which financed and purchased 75 percent of the 80 percent working interest in the oil and gas field. Stripling v. Jordan Prod. Co., 234 F.3d 863, 2000 U.S. App. LEXIS 29871 (5th Cir. Miss. 2000).

The defendant was subject to personal jurisdiction within Mississippi in an action for libel and slander where the plaintiff alleged that the defendant published the alleged defamatory information complained of on the Internet and allowed access and publication within Mississippi and among Mississippi residents. Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404, 2000 U.S. Dist. LEXIS 4593 (N.D. Miss. 2000).

The defendants were subject to personal jurisdiction in an action for breach of a contract regarding a distribution agreement where part of the contract required the plaintiff to perform acts in Mississippi and where the plaintiff also alleged, with evidentiary support, that the defendants committed various torts at least in part in Mississippi which resulted in injury to the plaintiff and that the defendants were engaged in doing business in Mississippi. Genesis Press, Inc. v. Carol Publ. Group, Inc., 2000 U.S. Dist. LEXIS 4595 (N.D. Miss. Mar. 30, 2000).

The parties did not enter into a contract to be performed in whole or in part by any party in Mississippi where the defendant agreed to provide certain land accommodations in Greece and round-trip airfare from New York to Greece, but did not agree to deliver air tickets to the plaintiffs in Mississippi. Christian Tours, Inc. v. Homeric Tours, Inc., 2000 U.S. Dist. LEXIS 4594 (N.D. Miss. Mar. 30, 2000), aff'd, 239 F.3d 366, 2000 U.S. App. LEXIS 30099 (5th Cir. Miss. 2000).

A contract between the plaintiff Mississippi corporation and the defendant Tennessee corporation involving the purchase of the defendant’s assets required actions in Mississippi, and therefore, the defendant fell under the broad reach of the Mississippi long-arm statute. Willowbrook Found., Inc. v. Visiting Nurse Ass'n, 87 F. Supp. 2d 629, 2000 U.S. Dist. LEXIS 2105 (N.D. Miss. 2000).

Where resident plaintiffs alleged, with evidentiary support, that the defendants committed the torts of defamation and tortious interference with business relations, at least in part, through their activities in Mississippi, such was sufficient to establish a prima facie case of personal jurisdiction under the tort prong of the statute. Wells v. Taylor, 1999 U.S. Dist. LEXIS 17891 (N.D. Miss. Oct. 25, 1999).

The defendant Arkansas corporation was not subject to personal jurisdiction under the Mississippi long-arm statute where the defendant had limited contact with Mississippi, such contacts were sporadic, incidental and indirectly associated with the forum, and the defendant did not and had not conducted business in Mississippi. Thrash Aviation, Inc. v. Kelner Turbine, Inc., 72 F. Supp. 2d 709, 1999 U.S. Dist. LEXIS 17788 (S.D. Miss. 1999).

Under tort prong of Mississippi long-arm statute, personal jurisdiction is proper if any element of tort (or any part of any element) takes place in Mississippi. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

Under Mississippi law, malicious prosecution requires institution or continuation of original judicial proceedings, either criminal or civil; by, or at instance of defendants; termination of such proceedings in plaintiff’s favor; malice in instituting proceedings; want of probable cause in proceedings; and suffering of damages as result of action or prosecution complained of. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

Suffering of damages within state from alleged malicious prosecution was insufficient, without more, to support personal jurisdiction under tort prong of Mississippi long-arm statute. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

For purposes of Mississippi long-arm statute, injury suffered in malicious prosecution tort is institution of criminal or civil proceedings where institution ought not to have occurred (and occurred for an improper reason); Mississippi does not permit damages to serve as a proxy for injury in personal jurisdiction calculus. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

Service of process by certified mail from out of state, apart from actual filing of suit, was not basis for malicious prosecution claim and could not support exercise of personal jurisdiction under tort prong of Mississippi long-arm statute. Allred v. Moore & Peterson, 117 F.3d 278, 1997 U.S. App. LEXIS 18148 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1048, 118 S. Ct. 691, 139 L. Ed. 2d 637, 1998 U.S. LEXIS 71 (U.S. 1998).

In a medical malpractice action against a Tennessee hospital and its emergency room personnel arising from the death of a patient who was to be transported from Mississippi to the hospital, neither the contract nor the doing business prong of the long-arm statute (§13-3-57) was available to the plaintiff as a means of acquiring jurisdiction over the hospital where the plaintiff was a nonresident of Mississippi. Cowart v. Shelby County Health Care Corp., 911 F. Supp. 248, 1996 U.S. Dist. LEXIS 579 (S.D. Miss. 1996).

In a medical malpractice action against a Tennessee hospital and its emergency room personnel arising from the death of a patient who was allegedly treated with inappropriate medication while being transported from a Mississippi hospital to the hospital in Tennessee, the plaintiff made a prima facie showing of jurisdiction over the Tennessee hospital pursuant to §13-3-57 for the alleged actions of an emergency room physician who agreed to accept the transfer. Cowart v. Shelby County Health Care Corp., 911 F. Supp. 248, 1996 U.S. Dist. LEXIS 579 (S.D. Miss. 1996).

In an action by a Mississippi plaintiff alleging various torts arising from a Missouri defendant’s repair and replacement of the plaintiff’s diesel engines, the defendant was not subject to personal jurisdiction in Mississippi, although the tort prong of Mississippi’s long arm statute (§13-3-57) applied because the engines malfunctioned in Mississippi, where, inter alia, the defendant was not qualified to do business in Mississippi, had never done business in Mississippi, owned no property in Mississippi, had no place of business in Mississippi, did not advertise or sell products in Mississippi, and was careful to protect its distribution agreement, which forbid it from providing any sales and services outside Kansas and part of Missouri; exercise of jurisdiction under the long-arm statute would not comport with the dictates of Fourteenth Amendment. Fava Custom Applicators v. Cummins Mid-America, 907 F. Supp. 224, 1995 U.S. Dist. LEXIS 18797 (N.D. Miss. 1995).

A foreign defendant was not amenable to suit under the “contract” provision of Mississippi’s long-arm statute (§13-3-57) where the final version of the contract was signed in Louisiana, the parties never contemplated that the contract would be performed in whole or in part in Mississippi, and the work under the contract was actually performed in Algeria; the fact that the plaintiff flew to the job site in Algeria from Mississippi did not render his travel from Mississippi equivalent to part performance in Mississippi. Peterson v. Test Int'l, E.C., 904 F. Supp. 574, 1995 U.S. Dist. LEXIS 17100 (S.D. Miss. 1995).

In an action for alleged interference with an employment contract, a foreign defendant was not amenable to suit under the “tort” provision of Mississippi’s long-arm statute (§13-3-57) where the plaintiff was hired to provide services in Algeria, and the alleged injury occurred in Algeria (where the plaintiff was terminated); the fact that the plaintiff, as a Mississippi resident, might have suffered adverse economic consequences in Mississippi from his termination in Algeria did not recategorize the tort as occurring “in whole or in part” in Mississippi. Peterson v. Test Int'l, E.C., 904 F. Supp. 574, 1995 U.S. Dist. LEXIS 17100 (S.D. Miss. 1995).

In a personal injury action by a Mississippi plaintiff arising from an automobile accident that occurred in Tennessee, the nonresident defendant’s consummation of an agreement to breed her dog in Mississippi, and her installation of a telephone line at a friend’s home in Mississippi when she briefly stayed there, were insufficient to meet the “contract” prong of the Mississippi long arm statute (§13-3-57) where the Tennessee automobile accident was unrelated to the contracts performed by the defendant in Mississippi. McLaurin v. Nazar, 883 F. Supp. 112, 1995 U.S. Dist. LEXIS 5550 (N.D. Miss.), aff'd, 71 F.3d 878, 1995 U.S. App. LEXIS 36819 (5th Cir. Miss. 1995).

In an action for an alleged breach of an agreement to purchase shares of stock in a coal mining company located in Kentucky, the requirements of the Mississippi long-arm statute (§13-3-57) were met as to the Kentucky defendants where all parties had duties of performance in Mississippi under the sale and escrow agreements, and negotiations conducted by one defendant by telephone or facsimile to Mississippi were made on behalf of both defendants. First Miss. Corp. v. Thunderbird Energy, 876 F. Supp. 840, 1995 U.S. Dist. LEXIS 1875 (S.D. Miss. 1995).

In an action by a Mississippi insurer against an Alabama resident and his Alabama attorney for breach of a settlement agreement arising out of a medical malpractice action, the defendants were subject to jurisdiction under Mississippi’s long-arm statute (§13-3-57), although the defendants received and cashed the settlement check in Alabama, and executed (and altered) the release document in Alabama, where the parties negotiated and ultimately entered the settlement agreement with the Mississippi insurance company in Mississippi, the settlement check was sent from Mississippi and ultimately paid by a Mississippi bank, and the release was sent to the defendants from Mississippi and was to be returned to Mississippi. Medical Assurance Co. v. Jackson, 864 F. Supp. 576, 1994 U.S. Dist. LEXIS 14703 (S.D. Miss. 1994).

A nonresident defendant must do more than merely place its product in the “stream of commerce” before its actions will be deemed “purposefully directed” at Mississippi for purposes of due process analysis. Sorrells v. R & R Custom Coach Works, 636 So. 2d 668, 1994 Miss. LEXIS 240 (Miss. 1994).

A nonresident manufacturer’s placement of its product into the stream of commerce did not constitute an act “purposefully directed” toward Mississippi where there was no evidence of any activity by the manufacturer indicative of an intent to serve the Mississippi market; thus, the limitations of the due process clause prevented utilization of §13-3-57 to gain personal jurisdiction over the manufacturer. Sorrells v. R & R Custom Coach Works, 636 So. 2d 668, 1994 Miss. LEXIS 240 (Miss. 1994).

In an action against a nonresident church and archdiocese, alleging that a priest engaged in homosexual activity with the plaintiff at homes in Mississippi and that church officials knew that the plaintiff was staying overnight with the priest, and should have known that homosexual activity would occur, personal jurisdiction did not exist over the church and archdiocese under the Mississippi long-arm statute (§13-3-57), since the plaintiff failed to prove a prima facie case on which jurisdiction was based predicated on theories of respondeat superior, negligent hiring, or negligent supervision. Tichenor v. Roman Catholic Church, 869 F. Supp. 429, 1993 U.S. Dist. LEXIS 20435 (E.D. La. 1993).

Long-arm statute could not be used as basis for obtaining personal jurisdiction in product liability action brought against non-resident defendants who were doing business in Mississippi and who were licensed as automobile manufacturers or dealers under Mississippi Motor Vehicle Commission Law, where defendants were not registered to do business in Mississippi, automobile accident which gave rise to action occurred in another state, and action was brought by non-resident plaintiffs. Herrley v. Volkswagen of America, Inc., 957 F.2d 216, 1992 U.S. App. LEXIS 6167 (5th Cir. Miss. 1992).

A Louisiana railroad corporation which was not qualified to do business in Mississippi was not amenable to suit in Mississippi under §13-3-57 where neither the plaintiff nor the accident giving rise to the action had any connection with Mississippi or with any business conducted by the railroad corporation in Mississippi. Southern Pacific Transp. Co. v. Fox, 609 So. 2d 357, 1992 Miss. LEXIS 421 (Miss. 1992).

Personal jurisdiction could be exercised over a nonresident putative father in a paternity and support action where the nonresident had been present in the state as a student at a state university, he had sexual relations with the mother in the state, and he had subsequently failed to support the child who resided in the state. Jones v. Chandler, 592 So. 2d 966, 1991 Miss. LEXIS 984 (Miss. 1991).

“Doing business” prong of long-arm statute may not be utilized by nonresident plaintiff. Madison v. Revlon, Inc., 789 F. Supp. 758, 1991 U.S. Dist. LEXIS 20080 (S.D. Miss. 1991).

In action, brought by truck driver who was injured when rubber strap broke as driver was attempting to attach it to tarp, against Ohio manufacturer of strap which sold strap to Alabama company which in turn sold it to plaintiff’s employee, evidence failed to establish that part of tort occurred in Mississippi for purposes of determining whether personal jurisdiction could be asserted there over Ohio manufacturer; although plaintiff made products liability allegation that he received box containing allegedly defective straps from his employer in Mississippi, plaintiff did not attempt to use strap until he reached Oklahoma, injury occurred in Oklahoma, none of manufacturer’s actions were directed towards Mississippi, and none of alleged acts took place in Mississippi. Yates v. Turzin, 786 F. Supp. 594, 1991 U.S. Dist. LEXIS 20499 (S.D. Miss. 1991).

In action, brought by truck driver injured when rubber strap broke as he attempted to attach it to tarp, against Ohio manufacturer of strap which sold strap to Alabama company which in turn sold it to plaintiff’s employer, evidence failed to establish sufficient basis to subject manufacturer to long-arm jurisdiction on theory of strict tort liability, notwithstanding that manufacturer was sufficiently engaged in business of selling rubber strap to be considered “seller,” as none of manufacturer’s sales activities or solicitations took place in or were directed towards Mississippi. Yates v. Turzin, 786 F. Supp. 594, 1991 U.S. Dist. LEXIS 20499 (S.D. Miss. 1991).

Non-resident plaintiff may not use “doing business” prong of long-arm statute to obtain in personam jurisdiction over non-resident defendant. Prince v. F. Hoffmann-La Roche & Co., 780 F. Supp. 417, 1991 U.S. Dist. LEXIS 18821 (S.D. Miss. 1991).

Assuming it was otherwise available to plaintiff, Mississippi statute providing that non-resident corporations found doing business in Mississippi would be subject to suit in state to same extent as domestic corporations, regardless of whether cause of action accrued within or outside of state, did not provide statutory basis for assertion of personal jurisdiction over nonresident corporation in personal injury action by nonresident plaintiff, where Mississippi long-arm statute would not allow that result. Prince v. F. Hoffmann-La Roche & Co., 780 F. Supp. 417, 1991 U.S. Dist. LEXIS 18821 (S.D. Miss. 1991).

Nonresident defendant is amenable to personal jurisdiction in federal diversity case to extent permitted by state court in state in which federal court sits. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Under particular facts, it would not be unfair or offend due process for Mississippi court to exercise jurisdiction in suit by Mississippi corporation against Illinois corporation which had agreed to move Mississippi corporation’s barges which had become stranded in river; defendant’s activities in Mississippi were such that it could reasonably foresee being hailed into court in Mississippi. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

In determining whether exercise of long arm jurisdiction under state statute comports with due process requirements, court must determine whether defendant has established sufficient contacts with forum state indicating purposeful availment of privilege of conducting activities within forum and thereby invoking benefits and protection of its laws, with focus of inquiry at this stage being upon nature of underlying litigation. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Extent of jurisdiction of federal court over nonresident defendant depends on whether defendant is amenable to service of process under forum state’s long arm statute and whether such exercise of jurisdiction would comport with dictates of due process. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

In deciding whether federal court sitting in diversity has jurisdiction over nonresident defendant, reach of long arm statute should be determined before considering whether exercise of jurisdiction would comport with due process, for if service was defective under state statute, constitutional issue should not even be considered. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

State’s long-arm statute relating to tort actions did not authorize jurisdiction over foreign corporation which had entered into charter agreement with Mississippi corporation seeking damages for loss of use of barges which allegedly went aground as result of Illinois corporation’s negligence in maintaining and operating tug. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

Mississippi’s long arm statute’s contract provision served to confer personal jurisdiction over Illinois corporation which had entered into charter agreement with Mississippi corporation seeking damages for loss of use of barges which allegedly ran aground as result of Illinois corporation’s negligent maintenance and operation of tug. Falco Lime, Inc. v. Tide Towing Co., 779 F. Supp. 58, 1991 U.S. Dist. LEXIS 17756 (N.D. Miss. 1991).

In order for “tort” prong of long-arm statute to apply, at least some part of tort must have been committed within Mississippi. Murray v. Remington Arms Co., 795 F. Supp. 805, 1991 U.S. Dist. LEXIS 20550 (S.D. Miss. 1991).

In products liability action brought against defendant manufacturer of rifle, tort provision of long-arm statute would not form basis for jurisdiction over nonresident manufacturer where allegations are that injuries to various plaintiffs occurred in Texas, Washington, and Canada. Murray v. Remington Arms Co., 795 F. Supp. 805, 1991 U.S. Dist. LEXIS 20550 (S.D. Miss. 1991).

Nonresident plaintiffs may not utilize “doing business” provision of long-arm statute to obtain jurisdiction over nonresident defendant. Murray v. Remington Arms Co., 795 F. Supp. 805, 1991 U.S. Dist. LEXIS 20550 (S.D. Miss. 1991).

In products liability action, nonresident plaintiffs could not use “doing business” provision of long-arm statute to obtain personal jurisdiction over nonresident defendant manufacturer, even if court considered as true, for purposes of litigation, assertion that defendant manufacturer was alter ego of co-defendant, its parent corporation, which had registered agent in state and had not challenged personal jurisdiction; there was no Mississippi law to support intended use of alter ego theory to impute residency of parent corporation to subsidiary. Murray v. Remington Arms Co., 795 F. Supp. 805, 1991 U.S. Dist. LEXIS 20550 (S.D. Miss. 1991).

Nonresidents may not utilize “doing business” provision of long-arm statute to invoke jurisdiction in Mississippi over foreign corporation. Ferry v. Langston Corp., 792 F. Supp. 512, 1990 U.S. Dist. LEXIS 20053 (S.D. Miss. 1990).

For defendant to be amenable to process under “doing business” provision of long-arm statute, there must be nexus between defendant’s activities in Mississippi and plaintiff’s cause of action; however, there is no requirement that there be direct relation or nexus between the two, claim must merely be “incident to” such business. Ferry v. Langston Corp., 792 F. Supp. 512, 1990 U.S. Dist. LEXIS 20053 (S.D. Miss. 1990).

There was no sufficient connection, to form basis for long-arm jurisdiction, between defendant manufacturer’s business activity in Mississippi and injury sustained by plaintiffs’ deceased by machine manufactured by defendant, where defendant was New Jersey corporation which sold machine to deceased’s employer in Louisiana, deceased had lived and worked in Louisiana, and plaintiffs resided in Louisiana; all that appeared from submissions to court was that defendant sold equipment in interstate commerce and had sold equipment which was distributed to Mississippi purchasers. Ferry v. Langston Corp., 792 F. Supp. 512, 1990 U.S. Dist. LEXIS 20053 (S.D. Miss. 1990).

Nonresident of state of Mississippi may not utilize “doing business” provision of long-arm statute as basis for jurisdiction over foreign corporation in Mississippi. Bailiff v. Manville Forest Products Corp., 792 F. Supp. 509, 1990 U.S. Dist. LEXIS 20052 (S.D. Miss. 1990).

Personal jurisdiction would not lie, over nonresident manufacturer, under long-arm statute or under due process clause, where manufacturer was organized or existed under laws of Federal Republic of Germany, was not qualified to do business in Mississippi, had no real estate, personal property, bank accounts, or other property in state, had never entered into contract to be performed within state, and had never performed any act which had or could have had effect within state. Bailiff v. Manville Forest Products Corp., 792 F. Supp. 509, 1990 U.S. Dist. LEXIS 20052 (S.D. Miss. 1990).

Mississippi long-arm statute allows for assertion of jurisdiction over person of nonresident defendant who makes contract with resident of Mississippi to be performed in whole or in part, by either party, within Mississippi; or who commits tort in whole or in part in Mississippi; or who does any business or performs any character of work or service in state. Bailiff v. Manville Forest Products Corp., 792 F. Supp. 509, 1990 U.S. Dist. LEXIS 20052 (S.D. Miss. 1990).

In action brought by California residents against asbestos products manufacturers alleging damages as result of presence of asbestos-containing materials in buildings located outside Mississippi, claims for fraud and conspiracy accrued at time of sale of products, which was before 1980 when §13-3-57 was amended, thus District Court in Mississippi lacked jurisdiction under tort prong of statute. Black v. Carey Canada, Inc., 791 F. Supp. 1120, 1990 U.S. Dist. LEXIS 20087 (S.D. Miss. 1990).

Sale of asbestos-containing products in Mississippi and alleged misrepresentation by defendant manufacturers as to consequences of exposure of such products did not subject defendants to service of process under tort provisions of §13-3-57; otherwise all manufacturers who commit mass torts would be subject to service of process under tort provisions of statute, which would swallow all restrictions placed on long-arm statute. Black v. Carey Canada, Inc., 791 F. Supp. 1120, 1990 U.S. Dist. LEXIS 20087 (S.D. Miss. 1990).

In order for jurisdiction to have been proper as to defendants who owned a weekend home in Mississippi but whose “usual place of abode” was in Louisiana, service of process should have been made pursuant to Mississippi’s long-arm statute, since the defendants owned real property in Mississippi, and thus had taken advantage of the laws of Mississippi and the protections afforded under such laws. Alpaugh v. Moore, 568 So. 2d 291, 1990 Miss. LEXIS 606 (Miss. 1990).

A court had personal jurisdiction over a former Mississippi resident in an action brought by his former wife who alleged that she incurred $5,000 in debts by reason of his desertion, where the allegations included a debt incurred in Mississippi by reason of the former husband’s conduct in Mississippi. Petters v. Petters, 560 So. 2d 722, 1990 Miss. LEXIS 201 (Miss. 1990).

By virtue of the supremacy clause, the Federal Uniformed Services Former Spouses’ Protection Act overrides Mississippi’s long-arm statutes to the extent that Mississippi law would exceed the limitations of the federal enactment. Thus, a former husband’s absence from Mississippi for 15 continuous years precluded personal jurisdiction by reason of residence or domicile since the language of the federal Act makes it clear that only current domicile or residence may suffice to confer authority upon a court to adjudge rights in a former service person’s military retirement pension. Petters v. Petters, 560 So. 2d 722, 1990 Miss. LEXIS 201 (Miss. 1990).

Mississippi long-arm statute could not bring owners of trucking company located and primarily doing business in Nevada and Colorado into court in Mississippi where only contacts between defendants and Mississippi were permit to carry property through the state and purchase of operating authorities permitting shipment into Mississippi. Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 1989 U.S. App. LEXIS 18373 (5th Cir. Miss. 1989).

The “doing-business” provision of Mississippi’s long-arm statute may not be used by nonresident plaintiffs to bring nonresident defendants into court in the state; even residents must establish a nexus between plaintiff’s cause of action and defendant’s in-state business contacts to use such long-arm provision. Mills v. Dieco, Inc., 722 F. Supp. 296, 1989 U.S. Dist. LEXIS 12349 (N.D. Miss. 1989).

Section 13-3-57 requires no direct nexus to the non-resident’s business done in Mississippi, but requires only that the claim be incident thereto. The statute thus requires far less than that the liability generating conduct have occurred in Mississippi. There is no constitutional imperative that the action arise out of the non-resident defendant’s contacts/activities in this state. All that is required is that the non-resident defendant have continuous and systematic general contacts with Mississippi. These contacts must amount to something more than occasional “fortuitous” instances where the defendant had in the past come into some casual, isolated contact with an in-state resident. McDaniel v. Ritter, 556 So. 2d 303, 1989 Miss. LEXIS 501 (Miss. 1989).

An airline passenger’s personal representatives’ claim against the estate of an airline pilot arose out of facts sufficiently incident to business done by the pilot in Mississippi that the pilot’s estate was amenable to suit in Mississippi under §13-3-57 where the pilot and the passenger were employees of a Mississippi corporation which had an office in Mississippi, and the airplane crash which gave rise to the passenger’s claim occurred during a trip made on behalf of the corporation. McDaniel v. Ritter, 556 So. 2d 303, 1989 Miss. LEXIS 501 (Miss. 1989).

The use of the word “representative” in §13-3-57 encompasses executors and administrators of an estate and contemplates that the actions of a decedent during his or her lifetime which would have rendered him or her amenable to suit will similarly subject his or her administrator or executor (i.e. his or her personal “representative”) to in personam jurisdiction in Mississippi. McDaniel v. Ritter, 556 So. 2d 303, 1989 Miss. LEXIS 501 (Miss. 1989).

Writers of book “published” or “communicated” allegedly defamatory writing to publisher, which republished book on widespread basis, and therefore writers are subject to in personam jurisdiction by virtue of fact that they committed tort within state. Mitchell v. Random House, Inc., 703 F. Supp. 1250, 1988 U.S. Dist. LEXIS 15738 (S.D. Miss. 1988), aff'd, 865 F.2d 664, 1989 U.S. App. LEXIS 1670 (5th Cir. Miss. 1989).

Negotiations conducted telephonically and through use of mails by out of state business do not evidence “purposeful availment” of benefits of forum state so as to permit in personam jurisdiction over business, where no representative of business ever visited state during negotiation process or at anytime, and where contract in question calls for performance and interpretation of contract under Pennsylvania law. General Equipment Mfrs. v. Coco Bros., Inc., 702 F. Supp. 608, 1988 U.S. Dist. LEXIS 15313 (S.D. Miss. 1988).

When nonresident defendant moves to dismiss for lack of personal jurisdiction, plaintiffs need not make full showing on merits that jurisdiction is proper, but must make prima facie showing of facts upon which in personam jurisdiction is predicated; plaintiffs failed to come forward with proof in acceptable form to controvert defendant’s unrebutted affidavit, which conclusively established that defendant was not doing business and had never done business in Mississippi. Strong v. RG Industries, Inc., 691 F. Supp. 1017, 1988 U.S. Dist. LEXIS 9037 (S.D. Miss. 1988).

Jurisdiction under Mississippi Long-Arm statute based on contract with nonresident to be performed in whole or in part in Mississippi does not apply where patient alleging medical malpractice for acts that had taken place in Tennessee had not identified any act that she, doctor, or professional corporation had performed, or were to be performed, in Mississippi, pursuant to either explicit or implicit contract. Rittenhouse v. Mabry, 832 F.2d 1380, 1987 U.S. App. LEXIS 15605 (5th Cir. Miss. 1987), but see, Gross v. Chevrolet Country, 655 So. 2d 873, 1995 Miss. LEXIS 226 (Miss. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 761, 1996 U.S. LEXIS 776 (U.S. 1996).

Physician and professional corporation were not amenable to jurisdiction under tort prong of long-arm statute because act of alleged negligence was committed and completed in Tennessee. Rittenhouse v. Mabry, 832 F.2d 1380, 1987 U.S. App. LEXIS 15605 (5th Cir. Miss. 1987), but see, Gross v. Chevrolet Country, 655 So. 2d 873, 1995 Miss. LEXIS 226 (Miss. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 761, 1996 U.S. LEXIS 776 (U.S. 1996).

Non-resident defendant who initiated contractual relationship out of which litigation arose with resident plaintiff, was subject to exercise of personal jurisdiction of court pursuant to Miss Code §13-3-57 where language of contract itself and defendant’s subsequent correspondence with plaintiff clearly reflected defendant’s intent and understanding that critical and meaningful work in furtherance of contract was to be performed, and in fact was performed, in Mississippi. Owen v. Woods, 661 F. Supp. 15, 1986 U.S. Dist. LEXIS 16354 (S.D. Miss. 1986).

Individual defendants’ motions for dismissal are properly denied, where motions are apparently based on plaintiff’s failure to specifically designate in both his original and his first amended complaints the provision of §13-3-57 upon which jurisdiction is based, where plaintiff’s second amended complaint, filed subsequent to defendants’ motions, premises long-arm jurisdiction on tort prong of statute, and where plaintiff has sufficiently alleged tortious acts committed in whole or in part in Mississippi to support long-arm jurisdiction against individual defendants in their individual capacities. White v. Franklin, 637 F. Supp. 601, 1986 U.S. Dist. LEXIS 25121 (N.D. Miss. 1986).

Tests for determining whether foreign corporation is “doing business” includes purposeful commission of act which consummates in transaction in Mississippi with cause of action arising from or being connected with such acts or transactions and consistency of assumption of personal jurisdiction with traditional notions of fair play and substantial justice; foreign corporation’s mailing of royalty checks to Mississippi residents for oil and gas production of out of state properties is not sufficient for jurisdictional purposes; execution of employment contracts and power of attorney in foreign state concerning administration of estate located in foreign state does not support Mississippi jurisdiction over claim by Mississippi law firm concerning work performed in Alabama for Alabama residents. Martin & Martin v. Jones, 616 F. Supp. 339, 1985 U.S. Dist. LEXIS 17567 (S.D. Miss. 1985).

Sections 13-3-57 and 79-1-27[Repealed] must be harmonized to support state’s valid policy of opening doors of Mississippi courts to foreign corporations found doing business in state to sue and be sued from all bona fide causes of action; merely doing business in Mississippi is not sufficient to support exercise of personal jurisdiction, and business in Mississippi of non-resident defendant must be of systematic and ongoing nature, cause of action must be incident to business activity, and assertion of jurisdiction must not offend notions of fairness and substantial justice; busline which does not maintain ticket agents, representatives, employees, offices, or property in Mississippi and which does not advertise or solicit business or negotiate or execute contracts in Mississippi but whose charter service has merely passed through state is not subject to jurisdiction for cause of action which does not arise out of activities of busline in state. Allen v. Jefferson Lines, Inc., 610 F. Supp. 236, 1985 U.S. Dist. LEXIS 19139 (S.D. Miss. 1985).

Despite fact that none of the plaintiffs in wrongful death action is resident of Mississippi, long-arm statute is available to plaintiffs where decedents, in whose shoes plaintiffs stand, were residents of Mississippi. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

If plaintiffs in wrongful death action amend pleadings to specifically allege that automobile accident giving rise to suit was caused by defect in master cylinder, plaintiffs will have satisfied minimum contacts test for determining whether personal jurisdiction over defendant satisfies federal due process requirements, where, although vehicle in question was sold and delivered by defendant dealer, who is Alabama Corporation, to decedents in Alabama, dealer aided Mississippi dealership in latter’s attempt to repair brakes by selling and shipping master cylinder to Mississippi dealership. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

Provision of §13-3-57 giving Mississippi courts jurisdiction over nonresident who commits tort in whole or in part in Mississippi potentially confers jurisdiction over Alabama car dealership in action arising from Mississippi automobile accident notwithstanding that dealer sold car involved in accident to decedent in Alabama, since tort is not complete until injury occurs and thus at least part of tort allegedly committed by dealer was committed in Mississippi. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

Subjecting Alabama car dealership to jurisdiction of Mississippi court in wrongful death action arising from automobile accident occurring in Mississippi but allegedly resulting from dealer’s sale and shipment to Mississippi dealership of master cylinder for use in attempting to repair vehicle’s brakes would not offend traditional notions of fair play and substantial justice so as to violate federal due process requirements, where (1) most of witnesses reside in Mississippi, (2) two or three defendants reside in Mississippi, (3) only Mississippi court can resolve matter in single action, and (4) Alabama dealer is not inconvenienced unreasonably since distance between Alabama and Mississippi is not great; moreover, Mississippi has exceptionally strong interest in providing forum for redress of injuries to its residents occurring within its borders and caused by allegedly defective product shipped from outside state. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

Tripartite test, under which applicability of long-arm statute is determined on basis of whether nonresident defendant has purposefully done act or consummated transaction in forum state, whether cause of action has arisen from or is connected with such act of transaction, and whether assumption of jurisdiction by forum state offends traditional notions of fair play and substantial justice, applies only to “doing business” category of statute. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

1980 amendment to §13-3-57 allowing nonresident plaintiff to obtain service of process upon nonresident defendant who has committed tort in whole or in part in Mississippi against nonresident plaintiff applies so as to permit nonresident plaintiff injured in automobile accident to obtain service upon Alabama car dealership to extent that dealership is subject to in personam jurisdiction of Mississippi Court where accident occurred after effective date of amendment. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1985 U.S. App. LEXIS 28452 (5th Cir. Miss. 1985).

Where a New York resident brought an action against a nonresident for alienation of affection and criminal conversation with his wife, and where the complaint contained sufficient allegations that the defendant committed a tort at least in part within Mississippi, the trial court had in personam jurisdiction over defendant by virtue of §13-3-57. Camp v. Roberts, 462 So. 2d 726, 1985 Miss. LEXIS 1858 (Miss. 1985).

Mississippi Code §79-1-27[Repealed], providing that any corporation doing business in Mississippi is subject to suit there, must be construed and harmonized with §13-3-57 “doing business” clause, which cannot be used by non-resident plaintiff; to extend jurisdiction over nonresident corporation in suit by non-resident plaintiff on authority of §79-1-27[Repealed] would be contrary to intention of Mississippi legislature. Smith v. De Walt Products Corp., 743 F.2d 277, 1984 U.S. App. LEXIS 17911 (5th Cir. Miss. 1984).

Plaintiff in products liability action against Pennsylvania corporation cannot avoid requirements of Mississippi long-arm statute on ground that “equality of treatment” requires that Pennsylvania corporation, which would not be precluded from bringing suit in Mississippi, should also be subject to suit in Mississippi as defendant. Smith v. De Walt Products Corp., 743 F.2d 277, 1984 U.S. App. LEXIS 17911 (5th Cir. Miss. 1984).

“Doing-business” provision of §13-3-57 is not available to non-resident plaintiffs. Smith v. De Walt Products Corp., 743 F.2d 277, 1984 U.S. App. LEXIS 17911 (5th Cir. Miss. 1984).

Nonresident plaintiff who serves process on registered agent of nonresident defendant, qualified to do business in Mississippi, acquires in personam jurisdiction over defendant, even though cause of action arose outside of Mississippi. Herrley v. Volkswagen of America, Inc., 598 F. Supp. 690, 1984 U.S. Dist. LEXIS 21686 (S.D. Miss. 1984), aff'd, 957 F.2d 216, 1992 U.S. App. LEXIS 6167 (5th Cir. Miss. 1992).

Mississippi long-arm statute applies in product liability action against foreign corporation where Mississippi resident employed as truckdriver died in Mississippi as result of accident caused by defective design and manufacture of hauler-container being transported by deceased at time of accident. Cannon v. Tokyu Car Corp., 580 F. Supp. 1451, 1984 U.S. Dist. LEXIS 19082 (S.D. Miss. 1984).

In a diversity action one long-distance telephone call that was alleged to constitute a tort committed “in whole or in part” in Mississippi was a proper basis on which to predicate federal diversity jurisdiction under Code §13-3-57, since the statute includes in its reach defendants who commit a single tort, an alleged tortfeasor need not have been present in the state, and if the alleged tortfeasor causes injury in Mississippi he is covered by the statute. Brown v. Flowers Industries, Inc., 688 F.2d 328, 1982 U.S. App. LEXIS 25419 (5th Cir. Miss. 1982), cert. denied, 460 U.S. 1023, 103 S. Ct. 1275, 75 L. Ed. 2d 496, 1983 U.S. LEXIS 4089 (U.S. 1983).

Service of process in an action for personal injuries sustained in an automobile accident was improperly made pursuant to §13-3-57, where although the plaintiff was a Mississippi resident when the accident occurred, she was not a resident when suit was filed and, at that time, the Mississippi statute could be used against nonresident defendants only by a plaintiff who was a resident when the suit was filed. Golden v. Cox Furniture Mfg. Co., 683 F.2d 115, 1982 U.S. App. LEXIS 17055 (5th Cir. Miss. 1982).

The 1980 amendment to §13-3-57 merely creates a right in nonresidents to make use of the statute where the tort is committed in whole or in part in the state; otherwise the statute remains the same and the amendment strengthens the view that a nonresident may not use the statute as a vehicle to bring suit in the courts of the state against nonresidents or foreign corporations not qualified under the constitution or state law to do business in the state when incidents giving rise to the cause of action occur outside of Mississippi. Thompson v. F. W. Woolworth Co., 508 F. Supp. 522, 1981 U.S. Dist. LEXIS 10531 (N.D. Miss. 1981).

In an action arising out of the sale of a grinding machine, service of summons on the nonresident defendants pursuant to the state long-arm statute was improper, notwithstanding plaintiff buyers’ allegations that defendants, the company’s owner and sales director, had committed a tort in part in Mississippi against a resident and that the owner had also made a contract to be performed by a party in Mississippi, where the sales had been made through a Tennessee corporation doing business in Tennessee, where the contacts leading up to the sales at issue had been made in Tennessee, and where the transactions had been closed in that state and the machines delivered to plaintiffs at their place of business in Tennessee; thus, the court did not possess in personam jurisdiction over defendants. Blanton v. American Tool & Grinding Co., 472 F. Supp. 257, 1979 U.S. Dist. LEXIS 12938 (N.D. Miss. 1979).

In an action against a nonresident corporate landowner for personal injuries sustained by plaintiff’s minor child in the waters surrounding defendant’s land, the trial court committed reversible error in sustaining a motion to dismiss for lack of in personam jurisdiction where allegations of negligence and of knowledge of a dangerous condition in such waters were sufficient for the trial court to acquire jurisdiction under the long-arm statute. Mandel v. James Graham Brown Foundation, Inc., 375 So. 2d 1017, 1979 Miss. LEXIS 2444 (Miss. 1979).

If a plaintiff can obtain process on a non-resident defendant, in a suit filed under the long arm statute, he will not be excused for his failure to sue and will not be entitled to claim that the statute of limitations is tolled during the absence of the defendant from the state; if a plaintiff makes such a claim, the burden is on him to show the duration of the defendant’s absence from the state and to show that defendant cannot be served with process under any of the ways provided by the long arm statute. Gulf Nat'l Bank v. King, 362 So. 2d 1253, 1978 Miss. LEXIS 2162 (Miss. 1978).

The application of the long-arm statute did not deny defendants due process of law where, inter alia, the execution of the contract at issue occurred largely in Mississippi, following telephone negotiations initiated in the state, and where defendant partially performed its part of the contract in Mississippi. Sheridan, Inc. v. C. K. Marshall & Co., 360 So. 2d 1223, 1978 Miss. LEXIS 2322 (Miss. 1978).

In an action to collect an amount allegedly due on a sale of products manufactured in Mississippi and sold to a Maine buyer on open account, the court lacked in personam jurisdiction over defendant buyer where the sale of the system at issue, for use on an egg farm, had been negotiated by telephone and correspondence, where defendant had not been present in Mississippi at any time and where he had no other business connections in the state; the only fact that could arguably justify in personam jurisdiction was that the system had been fabricated in Mississippi according to plans and specifications especially prepared in the state by plaintiff, but this activity was performed by plaintiff in order to place itself in a position to make the sale to its Maine customer. Reed-Joseph Co. v. De Coster, 461 F. Supp. 748, 1978 U.S. Dist. LEXIS 16847 (N.D. Miss. 1978).

In an action arising when a Tennessee auctioneer sold certain livestock over which the Mississippi plaintiff had a security interest, defendant’s motion to dismiss for lack of in personam jurisdiction would be granted, in accordance with the state long arm statute, where the contract between defendant and the plaintiff’s debtor was wholly performed in Tennessee and where, if treated as a tort action, the action in its entirety occurred in Tennessee; although defendant’s contacts with the state would satisfy the mandate of due process, the presence of one representative within the state and the act of advertising within the state would not constitute doing business within the meaning of the statute where there was no causal relationship between the cause of action alleged and the activities of the defendant within the forum state. Indianola Production Credit Asso. v. Burnette-Carter Co., 450 F. Supp. 303, 1977 U.S. Dist. LEXIS 12823 (N.D. Miss. 1977).

Defendants’ motion to dismiss for lack of personal jurisdiction would be granted where, according to their uncontradicted affidavits, neither defendant was qualified to do business, was doing business, or had ever done business in the state, where neither had committed a tort in the state, and where neither had entered into a contract with a resident of the state to be performed in whole or in part in the state. Haire v. Miller, 447 F. Supp. 57, 1977 U.S. Dist. LEXIS 13680 (N.D. Miss. 1977).

In an action for breach of contract brought by a New York corporation qualified to do and doing business in Mississippi against a Belgian corporation not otherwise connected with the state, in personam jurisdiction would be exercised pursuant to the long-arm statute and in accordance with the requirements of due process where the contract was partly performed in the state. Chromcraft Corp. v. Mirox, S. A., 446 F. Supp. 342, 1977 U.S. Dist. LEXIS 14242 (N.D. Miss. 1977).

A Louisiana shipping corporation was subject to personal jurisdiction in Mississippi in an action for breach of contract where, inter alia, the shipper either loaded or unloaded petroleum products at a port in Mississippi on 8 different occasions and where it submitted reports concerning the movement of petroleum products to proper state officials. Smego Marine Transport, Inc. v. International Trading & Transport, Ltd., 446 F. Supp. 21, 1977 U.S. Dist. LEXIS 14966 (N.D. Miss. 1977).

In personam jurisdiction over a third-party nonresident defendant was not available under the long-arm statute in an action concerning certain defective goods which it shipped to a Mississippi retailer and which were, in turn, delivered to a Mississippi buyer where the nonresident’s only contact with the state consisted of the isolated acts of receiving a telephone call and supplying goods from a point outside Mississippi; the exercise of personal jurisdiction under such circumstances would also be a violation of due process. R. Clinton Constr. Co. v. Bryant & Reaves, Inc., 442 F. Supp. 838, 1977 U.S. Dist. LEXIS 12222 (N.D. Miss. 1977).

Service of process under this section was available to a non-resident plaintiff in an action against a non-resident corporate defendant arising from an injury arising in Mississippi. Daniels v. McDonough Power Equipment, Inc., 430 F. Supp. 1203, 1977 U.S. Dist. LEXIS 16159 (S.D. Miss. 1977).

In an action against a foreign corporation alleging that the corporation interfered in a business relationship between its Mississippi subsidiary and a Mississippi resident, a foreign merger agreement involving the subsidiary was not a contract with a Mississippi resident within the meaning of this section; The corporation’s exercise of its legitimate business interest in selling its subsidiary did not constitute a tort against a Mississippi resident within the meaning of this section; The corporation was not doing business in Mississippi within the meaning of this section, even though its Mississippi subsidiary was wholly owned, the subsidiary’s financing had to be obtained through the corporation, the subsidiary’s long range plans were submitted to the corporation for approval, the boards of directors of the two corporations were nearly identical and board meetings of the subsidiary were held at the corporate offices of the corporation, where the formal legal requirements dividing the two corporations were scrupulously observed, where the subsidiary was recognized as a corporate entity legally distinct from its parent, where the subsidiary was adequately financed, where the subsidiary paid all of the salaries of its employees and its own expenses, including payment for services rendered by its parent, where there was no commingling of funds, and where the subsidiary maintained its own books, records, and a balance sheet. Johnson v. Warnaco, Inc., 426 F. Supp. 44, 1976 U.S. Dist. LEXIS 13363 (S.D. Miss. 1976).

Nonresident limited partners of a nonresident limited partnership doing business in the state could not be made subject to jurisdiction of the state’s courts in an action against the partnership where they had done none of the acts specified by the long arm statute (§13-3-57) as prerequisites to jurisdiction, and had paid their indebtedness to the partnership in full, thus, under the statute governing circumstances in which limited partners are proper parties to a suit against the partnership (§§79-13-3,79-13-51), not being subject to being made parties. Ga-Pak Lumber Co. v. Nalley, 337 So. 2d 1270, 1976 Miss. LEXIS 1615 (Miss. 1976).

Where the notice of service of a non-resident corporation was delivered to the president of the corporation in accord with statutory requirements, and an interlocutory default judgment was entered upon failure of the defendant to answer, the default judgment could not be set aside on the grounds that the president of the corporation mislaid the notice due to anxiety over his wife’s recent death. Western Chain Co. v. Brownlee, 317 So. 2d 418, 1975 Miss. LEXIS 1758 (Miss. 1975).

Where the consideration for a contract was the agreement between the plaintiff and the nonresident defendant to cause a merger of Mississippi and Arkansas corporations, which would require a partial performance of the contract by both plaintiff and defendant in Mississippi, the defendant was within the reach of this statute. Pierce v. Alleluia Cushion Co., 397 F. Supp. 338, 1975 U.S. Dist. LEXIS 11329 (N.D. Miss. 1975).

The Mississippi long-arm statute could be utilized in an action for the wrongful death, pursuant to Code 1972, §11-7-13, of a nonresident decedent, where the plaintiff was a Mississippi resident suing as administrator of the decedent’s estate pursuant to letters of administration granted by a Mississippi chancery court. McAlpin v. James McKoane Enterprises, Inc., 395 F. Supp. 937, 1975 U.S. Dist. LEXIS 12161 (N.D. Miss. 1975), disapproved, Estate of Portnoy v. Cessna Aircraft Co., 730 F.2d 286, 1984 U.S. App. LEXIS 23318 (5th Cir. Miss. 1984).

This statute (formerly § 1437, Mississippi Code (1942)) does not require the attachment of the complaint to the summons. Western Chain Co. v. American Mut. Liability Ins. Co., 527 F.2d 986, 1975 U.S. App. LEXIS 11213 (7th Cir. Ill. 1975).

Where the Associated Press sent a dispatch from Louisiana to its Mississippi members incorrectly indicating that plaintiff, a Mississippi resident, had been convicted of marijuana possession, the district court had jurisdiction of plaintiff’s libel action under the terms of the amended Mississippi long-arm statute; the AP’s contacts with Mississippi were sufficient to justify, under the due process clause, Mississippi’s exercise of its jurisdiction. Edwards v. Associated Press, 512 F.2d 258, 1975 U.S. App. LEXIS 14945 (5th Cir. Miss. 1975).

A nonresident executor administering an estate in and under the supervision of the Tennessee courts, whose only contact with Mississippi touching upon the court administration of the estate had been the probation of the foreign will and the recording of a certified copy of the record of his appointment and qualification in Tennessee, had such minimal and tenuous contact with Mississippi as to be outside the coverage of this section [Code 1972, §13-3-57]. Riley v. Communications Consultants, Inc., 385 F. Supp. 296, 1974 U.S. Dist. LEXIS 11784 (N.D. Miss. 1974).

The long-arm statute was clearly enacted for the benefit of residents only, and it has not been expanded through the process of judicial interpretation to include nonresident plaintiffs not qualified to do business within the state; there is no defect under federal constitutional standards for limiting the long-arm statute to resident plaintiffs, since the state is not obligated to make its courts available to nonresidents, who themselves are not doing business in the state, to sue other nonresidents. American International Pictures, Inc. v. Morgan, 371 F. Supp. 528, 1974 U.S. Dist. LEXIS 12866 (N.D. Miss. 1974).

Process served pursuant to §13-3-57 is not valid or effective to subject the nonresident defendant to in personam jurisdiction unless the cause of action arises from, or is connected with, the consummation of some transaction or performance of some act within the state by such nonresident defendant. Holvitz v. Norfleet--Ashley, Inc., 369 F. Supp. 394, 1973 U.S. Dist. LEXIS 10631 (N.D. Miss. 1973).

Code 1942, § 1437 could not be used to sustain in personam jurisdiction over individual defendants on grounds that the activities of the individual defendants in connection with the contract performed, or to be performed in Mississippi by the defendant corporation, created a situation under which this section would reach the individual defendants’ in personam jurisdiction, since jurisdiction over individual officers and employees of a corporation cannot be predicated merely upon the jurisdiction over the corporation itself. Webb v. Culberson, Heller & Norton, Inc., 357 F. Supp. 923, 1973 U.S. Dist. LEXIS 13866 (N.D. Miss. 1973).

A “single contract” is sufficient to confer jurisdiction of a nonresident under Code 1942, § 1437. Kaydee Metal Products Corp. v. Sintex Machine Tool Mfg. Corp., 342 F. Supp. 902, 1972 U.S. Dist. LEXIS 13806 (N.D. Miss. 1972).

An administratrix, residing outside and being a nonresident of the state of Mississippi has, by her actions in administering an estate in Mississippi, subjected herself to process under Code 1942, § 1437, on a cause of action arising out of an automobile accident which occurred in Alabama. Galloway v. Korcekwa, 339 F. Supp. 801, 1972 U.S. Dist. LEXIS 14938 (N.D. Miss. 1972).

The statutory purpose is to afford to Mississippi residents a right of action locally against the nonresident who commits a tort, in whole or in part, in this state against a resident of this state, and to limit the reach of this section [Code 1942, § 1437] and products liability cases “to injuries in this state” unduly restricts the clear meaning of the statute. Breedlove v. Beech Aircraft Corp., 334 F. Supp. 1361, 1971 U.S. Dist. LEXIS 11662 (N.D. Miss. 1971).

There is no statutory requirement that the part of the tort which causes the injury be committed in Mississippi; the words require only that a part of the tort be committed in this state. Breedlove v. Beech Aircraft Corp., 334 F. Supp. 1361, 1971 U.S. Dist. LEXIS 11662 (N.D. Miss. 1971).

Through the enactment of Code 1942, § 1438, actions brought pursuant to this section [Code 1942, § 1437] shall be issued and served in the same manner and with the same effect as process issued and served pursuant to Code 1942, § 9352-61. McKnight v. Dyer, 331 F. Supp. 343, 1971 U.S. Dist. LEXIS 12274 (N.D. Miss. 1971).

Under Code 1942, § 1438, providing that service of process made upon the secretary of state shall be made in the same manner and by the same procedure and with the same force and effect as is provided by the nonresident motorist statute as amended and supplemented, service can be made pursuant to a subsequently inserted provision of the nonresident motorist statute, Code 1942, § 9352-61, so as to permit service upon any person who is a nonresident at the time the action is filed, even though at the time of the incident giving rise to the action, such person was a resident of Mississippi. McKnight v. Dyer, 331 F. Supp. 343, 1971 U.S. Dist. LEXIS 12274 (N.D. Miss. 1971).

In a malpractice action against a nonresident doctor who resided in Mississippi at the time of the alleged tort, the court held that the addition in this section [Code 1942, § 1438] of the words “as amended and supplemented” indicate that the legislature intended to give those suing nonresidents under Code 1942, § 1437 the same rights to service and effect of process as are given to those suing nonresident motorists under Code 1942, § 9352-61. McKnight v. Dyer, 331 F. Supp. 343, 1971 U.S. Dist. LEXIS 12274 (N.D. Miss. 1971).

It is well settled that the Mississippi “long arm” statute applies to individual as well as to corporate defendants. Alford v. Whitsel, 322 F. Supp. 358, 1971 U.S. Dist. LEXIS 14729 (N.D. Miss. 1971).

For amenability of a nonresident individual defendant to process served pursuant to the Mississippi “long arm” statute, the nonresident must purposefully do some act or consummate some transaction in Mississippi, the cause of action must arise from or be connected with such act or transaction, and the assumption of jurisdiction by the state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in Mississippi, the relative convenience of the parties, the benefits and protection of the laws of the state afforded the respective parties, and the basic equities of the situation. Alford v. Whitsel, 322 F. Supp. 358, 1971 U.S. Dist. LEXIS 14729 (N.D. Miss. 1971).

The personal appearance of the defendant before a Mississippi grand jury, and his alleged malicious and willful withholding of facts which would have exonerated the plaintiff, a Mississippi resident, from criminal charges relating to a check given the defendant by the plaintiff, constituted the commission of a tort within Mississippi against a resident of the state, within the meaning of the Mississippi “long arm” statute. Alford v. Whitsel, 322 F. Supp. 358, 1971 U.S. Dist. LEXIS 14729 (N.D. Miss. 1971).

In applying the so-called long-arm statute the courts should be sensitive to any conflict between the letter of the law and traditional notions of fair play and substantial justice, and if the latter is offended, the former may have to yield. Beacham v. Beacham, 243 So. 2d 62, 1971 Miss. LEXIS 1505 (Miss. 1971).

Where a nonresident corporation signed a sales representative agreement with a resident of Mississippi, which resident fully performed the contract in the state by making sales of the corporation’s products and furnishing other information to the corporation as well as supervising the installation of the product, which installation required representatives of the corporation to make numerous trips to the facility site to assist in the installation, the corporation was amenable to the process and jurisdiction of the courts of Mississippi in a suit by the Mississippi resident to recover commissions allegedly due under the agreement. Beacham v. Beacham, 243 So. 2d 62, 1971 Miss. LEXIS 1505 (Miss. 1971).

In a suit to recover commissions allegedly due under a sales representative agreement between the plaintiff and the defendant, a nonresident corporate manufacturer, where the defendant made a special appearance and moved for dismissal of the suit on the ground that it was not subject to process of the court, which motion was overruled, the corporate defendant’s action in answering the bill of complaint and in participating in defending the suit did not estop it from making a further attack on the court’s jurisdiction on appeal. Beacham v. Beacham, 243 So. 2d 62, 1971 Miss. LEXIS 1505 (Miss. 1971).

The Mississippi statutes providing for the method of service on a resident or a qualified foreign corporation, the “doing business” statute, and the statute providing for substituted service on any corporation doing business in the state, must be read together, and such reading leads to the inescapable conclusion that effective process under these statutes presupposes a factual determination that the foreign corporation is doing business in the state of Mississippi. Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1969 U.S. Dist. LEXIS 13680 (D. Miss. 1969).

A foreign corporation qualified to do business in Mississippi is a resident within the meaning of subd (a) of this section [Code 1942, § 1437] so that it may bring a suit under the terms of the section. C. H. Leavell & Co. v. Doster, 211 So. 2d 813, 1968 Miss. LEXIS 1276 (Miss. 1968).

Nonresident plaintiff corporations qualified to do business in Mississippi are residents of the state within the meaning of the first category mentioned in subd (a) of this section [Code 1942, § 1437]. C. H. Leavell & Co. v. Doster, 211 So. 2d 813, 1968 Miss. LEXIS 1276 (Miss. 1968).

A foreign corporation qualified to do business under the laws of Mississippi should have the same privileges and advantages of invoking the aid of the courts of this state under this section [Code 1942, § 1437] as resident corporations if they are to have equal protection of the laws. C. H. Leavell & Co. v. Doster, 211 So. 2d 813, 1968 Miss. LEXIS 1276 (Miss. 1968).

A foreign corporation qualified to do business in Mississippi may not be sued under the terms of this section [Code 1942, § 1437] because a foreign corporation, to be reached by the section, must not be qualified as doing business in the state. C. H. Leavell & Co. v. Doster, 211 So. 2d 813, 1968 Miss. LEXIS 1276 (Miss. 1968).

It is now settled that there is little reason to distinguish between nonresident individuals and foreign corporations with respect to obtaining jurisdiction over them under this section [Code 1942, § 1437]. Smith v. Barker, 306 F. Supp. 1173, 1968 U.S. Dist. LEXIS 7727 (N.D. Miss. 1968).

The “long arm” amendment to this section [Code 1942, § 1437] which became effective July 1, 1964 does not apply retrospectively to torts committed prior to its effective date. Mladinich v. Kohn, 186 So. 2d 481, 1966 Miss. LEXIS 1321 (Miss. 1966).

The three basic factors which must coincide if jurisdiction is to be entertained by courts of this state over nonresident individuals and foreign corporations are (1) the nonresident defendant or foreign corporation must purposely do some act or consummate some transaction in the state, (2) the cause of action must arise from, or be connected with, such act or transaction, and (3) the assumption of jurisdiction by the state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of activity in this state, the relative convenience of the parties, the benefits and protection of the laws of this state afforded the respective parties, and the basic equities of the situation. Mladinich v. Kohn, 250 Miss. 138, 164 So. 2d 785, 1964 Miss. LEXIS 451 (Miss. 1964); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So. 2d 185, 1965 Miss. LEXIS 975 (Miss. 1965); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So. 2d 781, 1965 Miss. LEXIS 1059 (Miss. 1965).

This is a remedial statute to be liberally construed and applied without enlarging upon its provisions. Mississippi Chemical Corp. v. Vulcan-Cincinnati, Inc., 224 F. Supp. 11, 1963 U.S. Dist. LEXIS 6402 (S.D. Miss. 1963), aff'd, 338 F.2d 662, 1964 U.S. App. LEXIS 3743 (5th Cir. Miss. 1964).

In the absence of motion attacking the service of process under this section [Code 1942, § 1438], the court, although informed that the secretary of state had failed to mail a copy of the summons to defendant, may properly proceed with the trial. Aerial Agricultural Service v. Richard, 264 F.2d 341, 1959 U.S. App. LEXIS 4250 (5th Cir. Miss. 1959).

While the statute forbidding access by foreign corporations to the courts of the state because of their failure to comply with statutory provisions for doing business is strictly construed so that exclusion from access to the courts of the state requires a strong showing that the statute has been violated, the statute providing for services on a designated agent where, without a compliance with the statute, a corporation has undertaken to do business in state is liberally construed since otherwise citizens of a state would be forced to resort to another jurisdiction in order to maintain suits against foreign corporations as to matters arising out of transactions had within the statute. Mississippi Wood Preserving Co. v. Rothschild, 201 F.2d 233, 1953 U.S. App. LEXIS 2290 (5th Cir. Miss. 1953).

This section [Code 1942, §§ 1437, 1438] applies to contract, as well as to tort actions, growing out of business or acts done within the state. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

Change of status of defendant from that of resident of this state at time of entering into contract on which suit is brought to that of nonresident at time suit is filed does not affect validity of service of process under this section [Code 1942, § 1438] when defendant is still engaged in same business within state. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

This statute is to be given a prospective rather than a retrospective operation and therefore does not apply to an action arising out of an automobile accident occurring prior to its enactment. Bouchillon v. Jordan, 40 F. Supp. 354, 1941 U.S. Dist. LEXIS 2937 (D. Miss. 1941).

3. What constitutes doing business within state.

Trial court erred in granting a limited liability company’s (LLC) motion to dismiss due to lack of personal jurisdiction because it was “doing business” within the State under the long-arm statute; the LLC collaborated with a corporation about creating a sports-training facility in the State, communicated and planned furthering its formation, participated in meetings in the State, substantially participated in the creation of a Mississippi company, and became members of that company. Joshua Props., LLC v. D1 Sports Holdings, LLC, 130 So.3d 1089, 2014 Miss. LEXIS 70 (Miss. 2014).

Personal jurisdiction over a parent corporation of an extended care facility was lacking under Miss. Code Ann. §13-3-57 in an action alleging negligence in the facility’s care of a decedent, since there was no showing of sufficient domination by the parent to impute the alleged negligence of the facility to the parent; although the facility was a wholly owned subsidiary of the parent and the entities shared common officers, the parent and the facility meticulously observed corporate formalities in that they did not commingle funds, did not pool insurance coverage, and did not share financial books, records, or bank accounts, and the facility independently operated its own daily activities and paid its own operating expenses. Samples v. Vanguard Healthcare, LLC, 2008 U.S. Dist. LEXIS 70822 (N.D. Miss. Sept. 18, 2008).

Where a pharmaceutical company sought a declaratory judgment regarding patent infringement, personal jurisdiction was lacking over a laboratory under a long-arm statute, Miss. Code Ann. §13-3-57, as the laboratory’s mere plan to reintroduce a drug, which might place it into the state’s stream of commerce, did not qualify as doing business there. Further, the laboratory’s correspondence and license negotiations with the company did not support a finding that it was doing business in Mississippi as such would be inconsistent with due process. Cypress Pharm., Inc. v. Tiber Labs., LLC, 504 F. Supp. 2d 129, 2007 U.S. Dist. LEXIS 52454 (S.D. Miss.), transferred, 527 F. Supp. 2d 1373, 2007 U.S. Dist. LEXIS 67381 (N.D. Ga. 2007).

Mobile home moving service licensed to do business in Mississippi, which had performed some moves into or out of Mississippi over the years, was not “doing business” in the state for purposes of personal judgment in an out-of-state collision case, unrelated to any business in Mississippi. Williams v. Bud Wilson's Mobile Home Serv., 887 So. 2d 830, 2004 Miss. App. LEXIS 670 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1437 (Miss. 2004).

Summary judgment granted against two corporations licensed to do business in the State of Mississippi on the grounds that the State’s three-year statute of limitations did not apply to an incident that occurred in the State because the corporations were foreign corporations was reversed because the two corporations should have been considered residents for purposes of invocation of the State statute of limitations, in much the same way as the corporations would be able to invoke the use of the Mississippi long arm statute, Miss. Code Ann. §13-3-57. St. Paul Fire & Marine Ins. Co. v. Paw Paw's Camper City, Inc., 346 F.3d 153, 2003 U.S. App. LEXIS 20081 (5th Cir. Miss. 2003).

An oral contract for goods to be manufactured in Mississippi for sale to the defendant in Florida was sufficient to support a finding that there was a contract to be performed in part in Mississippi. American Cable Corp. v. Trilogy Communs., Inc., 754 So. 2d 545, 2000 Miss. App. LEXIS 5 (Miss. Ct. App. 2000).

The parties’ agreement that an oral contract existed for goods to be manufactured in Mississippi for sale to the defendant was sufficient to support a finding that there was a contract to be performed in part in Mississippi, therefore, the defendant was amenable to suit under the long-arm statute. American Cable Corp. v. Trilogy Communs., Inc., 1999 Miss. App. LEXIS 566 (Miss. Ct. App. Sept. 14, 1999), op. withdrawn, sub. op., different results reached on reh'g, 754 So. 2d 545, 2000 Miss. App. LEXIS 5 (Miss. Ct. App. 2000).

A corporation which owned drug stores in Louisiana did not do business in Mississippi so as to be subject to long arm jurisdiction since there were no substantial, continuous, and deliberate contacts with Mississippi, no purposeful availment of the Mississippi market, and no invocation of the benefits and protections of Mississippi laws, notwithstanding that the corporation paid for advertising by a separate corporation in Mississippi and ran advertisements on Louisiana television stations which broadcasted into Mississippi. Kekko v. K & B La. Corp., 716 So. 2d 682, 1998 Miss. App. LEXIS 504 (Miss. Ct. App. 1998).

In an action for alleged interference with an employment contract, a foreign defendant was not amenable to suit under the “doing business” provision of Mississippi’s long-arm statute (§13-3-57) on the sole basis that the contract was mailed to the plaintiff at his home address in Mississippi. Peterson v. Test Int'l, E.C., 904 F. Supp. 574, 1995 U.S. Dist. LEXIS 17100 (S.D. Miss. 1995).

In a personal injury action by a Mississippi plaintiff arising from an automobile accident that occurred in Tennessee, the nonresident defendant’s consummation of an agreement to breed her dog in Mississippi, and her installation of a telephone line at a friend’s home in Mississippi when she briefly stayed there, were insufficient to meet the “doing business” prong of the Mississippi long arm statute (§13-3-57) where the Tennessee automobile accident was not incidental to the defendant’s activities in Mississippi. McLaurin v. Nazar, 883 F. Supp. 112, 1995 U.S. Dist. LEXIS 5550 (N.D. Miss.), aff'd, 71 F.3d 878, 1995 U.S. App. LEXIS 36819 (5th Cir. Miss. 1995).

Plaintiff failed to demonstrate nexus between defendant product manufacturer’s activities in Mississippi and plaintiff’s cause of action, as required for assertion of jurisdiction under “doing business” clause of §13-3-57, where only allegations contained in complaint were that defendant sells products nationwide and that these products have been purchased by Mississippians. Madison v. Revlon, Inc., 789 F. Supp. 758, 1991 U.S. Dist. LEXIS 20080 (S.D. Miss. 1991).

In action by truckdriver injured when rubber strap broke as he attempted to attach it to tarp, against Ohio manufacturer of strap which sold strap to Alabama company which in turn sold it to plaintiff’s employee, evidence failed to establish that manufacturer was “doing business” in Mississippi so as to bring it within personal jurisdiction under statute, where there was no evidence that manufacturer had systematic and continuous contact with Mississippi. Yates v. Turzin, 786 F. Supp. 594, 1991 U.S. Dist. LEXIS 20499 (S.D. Miss. 1991).

Federal Court in Mississippi properly exercised in personam jurisdiction over publishers of swinger magazines in action for defamation and invasion of privacy for publication of personal ad pertaining to plaintiff because such publication constituted commission of tort in the state which would be deemed to be doing business in the state. Mize v. Harvey Shapiro Enterprises, Inc., 714 F. Supp. 220, 1989 U.S. Dist. LEXIS 6078 (N.D. Miss. 1989).

The Mississippi court had personal jurisdiction over an out-of-state bank since the bank’s financing of a customer’s gas well operation in Mississippi was an action purposefully directed toward Mississippi. By perfecting its security interests in the customer’s assets in Mississippi through filing financing statements and deeds of trust, the bank purposefully availed itself of the protection of Mississippi law. Wilkinson v. Mercantile Nat'l Bank, 529 So. 2d 616, 1988 Miss. LEXIS 335 (Miss. 1988).

Test to determine jurisdiction under “doing business” prong of long-arm statute is: (1) nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in forum state; (2) cause of action must arise from, or be connected with, such action or transaction; and (3) assumption of jurisdiction by forum state must not offend traditional notions of fair play and substantial justice, consideration being given to quality, common nature, and extent of activity in forum state, relative convenience of parties, benefits and protection of laws of forum state afforded respective parties, and basic equities of situation. Rittenhouse v. Mabry, 832 F.2d 1380, 1987 U.S. App. LEXIS 15605 (5th Cir. Miss. 1987), but see, Gross v. Chevrolet Country, 655 So. 2d 873, 1995 Miss. LEXIS 226 (Miss. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 761, 1996 U.S. LEXIS 776 (U.S. 1996).

Physician and professional corporation were not amenable to jurisdiction under doing business prong of Mississippi’s Long-Arm statute because relevant facts did not satisfy tri-partite test established to determine jurisdiction. There was no evidence in record that professional corporation ever purposefully did some act or consummated some transaction in Mississippi, instead confining practice to hospitals in Memphis, and corporation did not solicit patients from Mississippi or advertise there; based on this, plaintiff had not even shown that professional corporation met first element of tri-partite test. Rittenhouse v. Mabry, 832 F.2d 1380, 1987 U.S. App. LEXIS 15605 (5th Cir. Miss. 1987), but see, Gross v. Chevrolet Country, 655 So. 2d 873, 1995 Miss. LEXIS 226 (Miss. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 761, 1996 U.S. LEXIS 776 (U.S. 1996).

Physician was not subject to jurisdiction, although physician had consummated transaction in Mississippi by purchasing property there, not related to lawsuit; therefore, nexus requirement was not satisfied. Rittenhouse v. Mabry, 832 F.2d 1380, 1987 U.S. App. LEXIS 15605 (5th Cir. Miss. 1987), but see, Gross v. Chevrolet Country, 655 So. 2d 873, 1995 Miss. LEXIS 226 (Miss. 1995), cert. denied, 516 U.S. 1094, 116 S. Ct. 817, 133 L. Ed. 2d 761, 1996 U.S. LEXIS 776 (U.S. 1996).

Out of state company which entered into contract with in-state company, which contract required at least partial performance within state, has purposefully availed itself of privileges of conducting activities within state and its connection with forum was such that it should reasonably have anticipated being brought into court within state, as certain elements of contract and subsequent agreements were to be performed by out of state company within state relating to specifications of work to be done and testing of completed work, all to be performed within state. Sorrels Steel Co. v. Great Southwest Corp., 651 F. Supp. 623, 1986 U.S. Dist. LEXIS 20575 (S.D. Miss. 1986).

Plaintiffs failed to make prima facie showing that corporate veil of subsidiary corporation should be preliminarily pierced for purposes of attaining long-arm jurisdiction over parent corporation or individual alleged to have been president of both corporations when cause of action arose, where, although there existed commonality of ownership or officers of both corporations, plaintiffs made no attempt to satisfy requirement of particularized factual allegations tending to show applicability of “piercing” doctrine, and they have not pled specific facts sufficient to establish that subsidiary corporation at anytime operated as alter ego of corporate officer. McCardle v. Arkansas Log Homes, Inc., 633 F. Supp. 897, 1986 U.S. Dist. LEXIS 28846 (S.D. Miss. 1986).

Mississippi court lacks jurisdiction over out-of-state corporate defendant where corporate defendant has no contract with resident of state to be performed in whole or in part by any party in state and the corporate defendant has no other contacts with state; Mississippi court lacks jurisdiction over corporate defendant in transaction arising over sale of out-of-state property which took place outside of Mississippi where only arguable contact with State of Mississippi is assembly and transfer of collateral to plaintiff in Mississippi which would transpire between plaintiff and trustee bank. Cappaert v. Preferred Equities Corp., 613 F. Supp. 264, 1985 U.S. Dist. LEXIS 17906 (S.D. Miss. 1985).

Miss. Code §13-3-57 does not confer jurisdiction over out-of-state corporate defendant in action for fraud, negligent misrepresentation, breach of fiduciary duties, and violations of federal commodities laws, notwithstanding plaintiff’s contentions (1) that his economic loss in Mississippi causes tort to have occurred in Mississippi, and (2) that defendant’s advertisement in Wall Street Journal circulated and read by plaintiff in Mississippi, telephone calls to and from Mississippi, and fact that plaintiff’s checks were drawn on his Mississippi account are sufficient bases for exercise of in personam jurisdiction. Paul v. International Precious Metals Corp., 613 F. Supp. 174, 1985 U.S. Dist. LEXIS 18214 (S.D. Miss. 1985).

When defendant in securities action took funds beyond borders of Mississippi in violation of injunction and in furtherance of his plan to secrete funds with knowledge and consent of its agents, such action satisfied in-state requirement of §13-3-57 as far as agents are concerned. Waffenschmidt v. Mackay, 763 F.2d 711, 1985 U.S. App. LEXIS 30619 (5th Cir. Miss. 1985), cert. denied, 474 U.S. 1056, 106 S. Ct. 794, 88 L. Ed. 2d 771, 1986 U.S. LEXIS 2324 (U.S. 1986).

Before personal jurisdiction may be exercised under “doing-business” provision of §13-3-57, there must be sufficient nexus between activities of defendant within state and plaintiff’s cause of action; mere fact that defendant power saw manufacturer markets its products nationally and that some of these goods find their way into Mississippi is not sufficient nexus to subject manufacturer, which is corporation domiciled in Pennsylvania and is division of Maryland corporation, to in-personam jurisdiction under “doing-business” provision. Smith v. De Walt Products Corp., 743 F.2d 277, 1984 U.S. App. LEXIS 17911 (5th Cir. Miss. 1984).

Contacts between defendant foreign corporation and forum state in wrongful death and negligence action were insufficient to assert in personam jurisdiction over defendant where contacts consisted of sending defendant’s chief executive officer to forum state for contract-negotiation session, accepting checks drawn on bank located in forum state, purchasing equipment and services from a manufacturer located in forum state, and sending personnel to manufacturer’s facilities for training in the state. Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404, 1984 U.S. LEXIS 68 (U.S. 1984).

Publishing corporation’s regular circulation of magazines in forum state is sufficient to support assertion of jurisdiction in libel action based on contents of magazine, even where single publication rule is applied. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790, 1984 U.S. LEXIS 40 (U.S. 1984).

In an action brought by a bank to foreclose its deed of trust executed by a corporation and secured by the personal guarantees of five of the corporation’s stockholders, the chancery court had jurisdiction under §13-3-57 over a non-resident stockholder, even though the instruments had been executed out of state, since they were to be performed in Mississippi, were construed according to Mississippi law, and were also excepted in Mississippi. First Mississippi Nat'l Bank v. S & K Enterprises, Inc., 460 So. 2d 839, 1984 Miss. LEXIS 2008 (Miss. 1984).

In an action by a Mississippi citizen charging breach of contract and fraud against a Texas corporation arising out of an oral agreement for an exclusive dealership to sell the corporation’s product in Mississippi, the trial court erred in granting the corporation’s motion to dismiss for lack of jurisdiction where, by purposefully availing itself of the privilege of doing business with a Mississippi resident, accepting several orders made through the resident and shipping its product to the purchasers in Mississippi, the corporation subjected itself to the jurisdiction of the courts of Mississippi under the long arm statute. Murray v. Huggers Mfg., Inc., 398 So. 2d 1323, 1981 Miss. LEXIS 2026 (Miss. 1981).

Personal jurisdiction over Louisiana corporation existed in Mississippi under §13-3-57 where Louisiana corporation did business of a systematic and ongoing nature in Mississippi, plaintiffs’ cause of action was incident to that business activity, and assertion of jurisdiction over Louisiana corporation did not offend notions of fairness or substantial justice. Aycock v. Louisiana Aircraft, Inc., 617 F.2d 432, 1980 U.S. App. LEXIS 17435 (5th Cir. Miss. 1980), cert. denied, 450 U.S. 917, 101 S. Ct. 1361, 67 L. Ed. 2d 343, 1981 U.S. LEXIS 829 (U.S. 1981).

A nonresident manufacturer of grinding machines was not amenable to suit in Mississippi by a Louisiana resident who had worked in Mississippi as an operator of such machine and who had allegedly become permanently disabled as a result of the constant inhalation of dust particles at work, where, inter alia, defendant manufacturer did not have a single employee in the state when the cause of action accrued or when the complaint was filed, even though a single corporate employee subsequently moved to the state and was served with process, and where defendant had never paid state taxes or availed itself of the protection of any state laws; further, plaintiff had only availed himself of the protection of Mississippi’s law to the limited extent that he worked and traveled in the state. Washington v. Norton Mfg., Inc., 588 F.2d 441, 1979 U.S. App. LEXIS 17345 (5th Cir. Miss.), cert. denied, 442 U.S. 942, 99 S. Ct. 2886, 61 L. Ed. 2d 313, 1979 U.S. LEXIS 2186 (U.S. 1979).

The “doing business” provision of the Mississippi long-arm statute cannot be invoked by a nonresident plaintiff in a diversity action against a nonresident defendant and the statute, so construed, does not deny a nonresident plaintiff privileges and immunities secured under the federal constitution. Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716, 1978 U.S. App. LEXIS 7655 (5th Cir. Miss. 1978).

A Mississippi court had jurisdiction under §13-3-57 in a breach of contract action involving the sale of a tractor by a non-resident seller to a resident purchaser where the contract was made by phone, payment was sent from Mississippi to the non-resident seller, and the seller delivered the tractor through its agent to the purchaser in Mississippi. Miller v. Glendale Equipment & Supply, Inc., 344 So. 2d 736, 1977 Miss. LEXIS 2448 (Miss. 1977).

A foreign corporation which made advances by way of loans to a Mississippi corporation which were used by the latter corporation in its Mississippi operation was not doing business in Mississippi within the meaning of this section [Code 1972, §13-3-57]. Riley v. Communications Consultants, Inc., 385 F. Supp. 296, 1974 U.S. Dist. LEXIS 11784 (N.D. Miss. 1974).

It is no longer necessary, in a products liability claim, to determine whether the manufacturer is “doing business”, as interpreted by earlier Mississippi decisions, to render the nonresident manufacturer subject to suit and jurisdiction under the state’s “long-arm” statute. Breedlove v. Beech Aircraft Corp., 334 F. Supp. 1361, 1971 U.S. Dist. LEXIS 11662 (N.D. Miss. 1971).

A nonresident manufacturer, which had no representatives or any personal ties within the state, but which placed its manufactured heating unit in interstate commerce for distribution and sale to consumers, was subject to in personam jurisdiction within the state for purposes of a products liability action, when one of its heating units overheated and resulted in a fire which destroyed the plaintiffs’ home because of an alleged defect. Smith v. Temco, Inc., 252 So. 2d 212, 1971 Miss. LEXIS 1194 (Miss. 1971).

A New Orleans television broadcasting station whose programs were regularly heard by thousands of residents of the Mississippi Gulf coast area, which regularly reported news events in that area, solicited advertising there, and carried advertising by New Orleans stores directed especially toward Gulf coast residents, had sufficient minimum contacts in Mississippi to be amenable to process under this section [Code 1942, § 1437]. Casano v. WDSU--TV, Inc., 313 F. Supp. 1130, 1970 U.S. Dist. LEXIS 11516 (S.D. Miss. 1970), aff'd, 464 F.2d 3, 1972 U.S. App. LEXIS 8537 (5th Cir. Miss. 1972).

An action initiated in a Virginia federal district court by railroad companies against, among others, two car leasing companies for damages sustained as a result of a derailment occurring in Mississippi, would be transferred to a Mississippi federal court, where one of the companies leased cars with 6% of its lease revenue attributable to miles traveled over Mississippi tracks, and the other leasing company systematically solicited and did business within Mississippi and filed annual sales tax returns in Mississippi, and where, in both instances, such contacts were directly involved with the alleged cause of action; the contacts being sufficient to make the defendant leasing companies amenable, constitutionally, to service of process under the Mississippi “long arm” statute. Alabama G. S. R. Co. v. Allied Chemical Co., 312 F. Supp. 3, 1970 U.S. Dist. LEXIS 12090 (E.D. Va. 1970).

Where a Wisconsin corporate manufacturer had 10 distributors in Mississippi, made substantial sales to its distributors, sent an average of 17 employees into the state each year to give assistance to its distributors, had several pieces of equipment operating within the state, extended and secured credit within the state and made contracts with its distributors, giving it considerable control over their activities, the corporation was “doing business” in Mississippi within the “long-arm” and “doing business” statutes. Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1969 U.S. Dist. LEXIS 13680 (D. Miss. 1969).

Neither the fact that a manufacturer of equipment sold its products to Mississippi distributors or wholesalers, nor the fact that the manufacturer had employees on an average of 17 or 18 per year visiting within Mississippi to give assistance to the distributors in the sale of equipment manufactured by it and to help repair and adjust such equipment, standing alone, would compel a finding that the manufacturer is or was “doing business” within the state of Mississippi under the provisions of Code 1942, § 1437 or Code 1942, § 5345. Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1969 U.S. Dist. LEXIS 13680 (D. Miss. 1969).

Where a Wisconsin corporation had ten distributors within Mississippi, making substantial sales, had equipment in the state, and was a creditor secured by security instruments in the state, and where its employees frequently visited the state, the corporation had sufficient contacts within Mississippi to satisfy due process for the exercise of in personam jurisdiction. Hyde Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1969 U.S. Dist. LEXIS 13680 (D. Miss. 1969).

Where the contract between a nonresident distributor of foreign automobiles and a Mississippi dealer gave the distributor almost absolute control over the method and manner of doing business by the dealer, the distributor was doing business in Mississippi within the purview of this section [Code 1942, § 1437]. Easterling v. Volkswagen of America, Inc., 308 F. Supp. 966, 1969 U.S. Dist. LEXIS 13400 (S.D. Miss. 1969).

The importer of foreign automobiles located in another state which did not enter into any contract with anyone to perform any services or do any work within Mississippi, did no business and performed no acts within that state which would constitute its doing business there, did not deliver any automobiles to anyone within the state, entered into no contract with anyone therein, maintained no corporate records or corporate office, had no telephone listing, no agents or employees of any kind and no “minimum contact” with anyone was not amenable to process under this section [Code 1942, § 1437]. Easterling v. Volkswagen of America, Inc., 308 F. Supp. 966, 1969 U.S. Dist. LEXIS 13400 (S.D. Miss. 1969).

A nonresident individual who sold a portable elevator to a resident of Mississippi, and, through his agents and in his own truck, delivered it to the purchaser in Mississippi, had prior to sale assembled the elevator at his premises in Tennessee, and who over a period of 10 or 15 years made 15 percent of his total gross sales to residents of Mississippi, and who, in connection with these sales, it was his common practice to go to the customer’s home within the state to appraise property offered as trade-in on new equipment and delivered the merchandise within that state, was amenable to process under this section [Code 1942, § 1437]. Smith v. Barker, 306 F. Supp. 1173, 1968 U.S. Dist. LEXIS 7727 (N.D. Miss. 1968).

A nonresident individual whose agents, trucks, and other property were brought into Mississippi in the ordinary course of his business, had contacts within that state which were purposeful, continuous, and systematic activities, and rendered him amenable to process, despite the fact that he maintained no telephone listing, bank account, office, warehouse, or storage facilities there. Smith v. Barker, 306 F. Supp. 1173, 1968 U.S. Dist. LEXIS 7727 (N.D. Miss. 1968).

An elevator manufacturing company which markets its products through various distributors in the United States, but has never had any dealers or salesmen residing in Mississippi, has never solicited through salesmen any orders within the state, has never had a warehouse or inventory of any kind located there, never maintained an office, telephone listing, bank account, or agent for the service of process, made no sales to its customers directly in the state, has made no shipments into the state except an inconsequential amount of truck hoists and parts and, even in that case, the items delivered were sold to manufacturers’ representatives, none of whom resided in the state, and were transported into the state by common carrier and not in its own trucks, was not amenable to process under the provisions of this section [Code 1942, § 1437]. Smith v. Barker, 306 F. Supp. 1173, 1968 U.S. Dist. LEXIS 7727 (N.D. Miss. 1968).

A nonresident defendant who entered into a contract to perform work in Mississippi and performed the work within the state is subject to suit in the courts of Mississippi under the provisions of this section [Code 1942, § 1437]. C. H. Leavell & Co. v. Doster, 211 So. 2d 813, 1968 Miss. LEXIS 1276 (Miss. 1968).

A nonresident employed by a crime commission of another state who, pursuant to invitation, and without remuneration or payment of expenses or without knowledge of his employers, came into Mississippi and delivered a speech before a religious group in which he allegedly slandered certain Mississippi residents was not amenable to the process and jurisdiction of a Mississippi court. Mladinich v. Kohn, 250 Miss. 138, 164 So. 2d 785, 1964 Miss. LEXIS 451 (Miss. 1964).

Whether one is doing business within the state within the contemplation of this section [Code 1942, § 1437] must be determined from the facts of each case. Hazell Machine Co. v. Shahan, 249 Miss. 301, 161 So. 2d 618, 1964 Miss. LEXIS 392 (Miss. 1964).

A foreign corporation entering into a distributorship agreement, held to be doing business within the state within the meaning of this section [Code 1942, § 1437]. Hazell Machine Co. v. Shahan, 249 Miss. 301, 161 So. 2d 618, 1964 Miss. LEXIS 392 (Miss. 1964).

A press association organized as a mutual cooperative and nonprofit organization, formed to gather, collect, and interchange with its members news and intelligence which, under the terms of its charter, it could neither sell nor traffic in, but distributed only to its members who apportioned costs of the services among themselves in the form of assessments, and which only employed five persons within the state to collect and disseminate news and repair equipment, is not an organization doing business within the state and therefore is not amenable to process under the provisions of this section [Code 1942, § 1437]. Walker v. Savell, 335 F.2d 536, 1964 U.S. App. LEXIS 4508 (5th Cir. Miss. 1964), limited, Marathon Oil Co. v. Ruhrgas, A.G., 115 F.3d 315, 1997 U.S. App. LEXIS 13676 (5th Cir. Tex. 1997).

A single isolated and incidental activity does not constitute doing business in the state within the meaning of this statute. Mississippi Chemical Corp. v. Vulcan-Cincinnati, Inc., 224 F. Supp. 11, 1963 U.S. Dist. LEXIS 6402 (S.D. Miss. 1963), aff'd, 338 F.2d 662, 1964 U.S. App. LEXIS 3743 (5th Cir. Miss. 1964).

A foreign corporation which has appointed a franchise dealer within the state, indoctrinated him in the conduct of the business, and having the right under the franchise agreement to supervise it, is doing business in the state so as to be subject to service of process through the secretary of state. Century Brick Corp. v. Carroll, 247 Miss. 514, 153 So. 2d 683, 1963 Miss. LEXIS 319 (Miss. 1963).

Mere incidental inspection by a foreign corporation of a plant constructed by another in Mississippi, pursuant to an agreement made in another state to furnish the design and any necessary scientific and engineering advice does not constitute doing business in the state within the meaning of this provision. Mississippi Chemical Corp. v. Vulcan-Cincinnati, Inc., 224 F. Supp. 11, 1963 U.S. Dist. LEXIS 6402 (S.D. Miss. 1963), aff'd, 338 F.2d 662, 1964 U.S. App. LEXIS 3743 (5th Cir. Miss. 1964).

Gathering and relaying of news in Mississippi by the Associated Press, held not to constitute doing business in the state so as to be subject to service of process there. Walker v. Savell, 218 F. Supp. 348, 1963 U.S. Dist. LEXIS 7513 (N.D. Miss. 1963), aff'd, 335 F.2d 536, 1964 U.S. App. LEXIS 4508 (5th Cir. Miss. 1964).

Isolated acts, not amounting to a continuity, do not warrant substituted service of process under this section [Code 1942, § 1437]. Hudgins v. Tug Kevin Moran, 206 F. Supp. 339, 1962 U.S. Dist. LEXIS 4700 (S.D. Miss. 1962).

Although it conducted occasional demonstrations of its products and sent complaint investigators into the state, a foreign corporation which had salesmen in the state doing promotional and sales work but who had no authority to close sales, and maintained no plant or sales office within the state, was not doing business in the state so as to subject it to the jurisdiction of the state court. Livestock Services, Inc. v. American Cyanamid Co., 244 Miss. 531, 142 So. 2d 210, 1962 Miss. LEXIS 473 (Miss. 1962).

In determining whether a corporation is doing business in the state, each case must be decided upon its peculiar facts. Jarrard Motors, Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So. 2d 309, 1959 Miss. LEXIS 517 (Miss. 1959).

Fact that under contract nonresident automotive distributors possessed almost absolute control over the method and manner of doing business by resident dealer, together with the failure of the nonresident distributors to comply with Code 1942, §§ 8072 and 8073, established that nonresident distributors were doing business within the state. Jarrard Motors, Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So. 2d 309, 1959 Miss. LEXIS 517 (Miss. 1959).

Under this section [Code 1942, § 1437] authorizing substituted service of process on foreign corporations doing business within state without having qualified therefor, jurisdiction is not conferred on a single act or acts, but a series of acts amounting to a continuity is required. Mississippi Wood Preserving Co. v. Rothschild, 201 F.2d 233, 1953 U.S. App. LEXIS 2290 (5th Cir. Miss. 1953).

Whether a corporation is doing business in a state in the sense required for a process statute is a question dependent primarily upon the facts and circumstances of each particular case. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

A less strict interpretation of the phrase doing business, is applied where there is an issue of whether a state board has jurisdiction, than is applied where the statute involved is one stating that a corporation must qualify before doing business in order to have access to the courts of state. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

Where a corporation has entered the state through its agent and is engaged in carrying on and transacting through them a substantial part of its ordinary business on the regular basis, it is doing business within the state so as to be subject to process. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

Where a lumber company, a Louisiana corporation, executed in this state a contract for the manufacture of lumber and the contract was wholly performed in this state and also the contract involved continuous substantial series of transactions covering a period of two years during which the lumber company sent its trucks into the state several times each week to pick up the timber, the lumber company was doing business within the statute providing for service against nonresident corporation doing business in the state. Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So. 2d 615, 1951 Miss. LEXIS 322 (Miss. 1951).

Nonresident engaging in business of termite eradication and control in this state under license from state plant board authorizing him to conduct such business is subject to action for damages in this state for breach of contract entered into and to be performed in this state and may be brought into court by service of process upon secretary of state in manner provided by Code 1942, § 1438. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

To constitute a foreign corporation doing business in a particular jurisdiction, the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state where the service of process is attempted. Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So. 2d 351, 1943 Miss. LEXIS 133 (Miss. 1943).

Maintenance by a foreign newspaper corporation of a news-gathering office in the state, the employment of a resident contract man to recommend suitable persons to become local distributors in the state, and a contract with a truck operator to transport its papers into the state for sale and distribution by local distributor, did not constitute “doing business” in the state so as to make such corporation amenable to service of process in the state. Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So. 2d 351, 1943 Miss. LEXIS 133 (Miss. 1943).

4. Non-resident heirs of alleged tortfeasor.

Mississippi’s long-arm statute did not apply to nonresident individual heirs of deceased alleged tortfeasor as service could only be made upon nonresident executor, administrator, receiver, trustee or any other selected or appointed representative. Sealy v. Goddard, 910 So. 2d 502, 2005 Miss. LEXIS 91 (Miss. 2005).

5. Illustrative cases.

Circuit court properly denied an insurer’s motion to dismiss for lack of personal jurisdiction because the insurer waived its defense, and the long-arm statute was irrelevant; the insurer’s implied consented to the State’s jurisdiction created an independent basis for jurisdiction. Pekin Ins. Co. v. Hinton, 192 So.3d 966, 2016 Miss. LEXIS 166 (Miss. 2016).

Circuit court lacked personal jurisdiction over a driver where regardless of whether the driver’s acts constituted doing business, the suing driver, as a Tennessee resident, could not utilize any of the three prongs of the long-arm statute. Williams v. Liberty Mut. Fire Ins. Co., 187 So.3d 166, 2015 Miss. App. LEXIS 379 (Miss. Ct. App. 2015).

Because a nonresident paramour’s actions allegedly broke up a wife’s Mississippi marriage, the long-arm statute’s language was sufficiently broad enough to bring the paramour within its scope; however, since the wife did not meet her burden of showing the paramour had the constitutionally required purposeful minimum contacts in Mississippi, the circuit court erred in denying the paramour’s motion to dismiss for lack of personal jurisdiction. Nordness v. Faucheux, 170 So.3d 454, 2015 Miss. LEXIS 295 (Miss. 2015).

Former wife should not have been ordered to pay attorneys’ fees in an alienation of affection case because the claim was not frivolous, groundless in fact or in law, or vexatious where there was personal jurisdiction over the claim in Mississippi; moreover, the court could not have concluded that the claim had no hope of success since it fell within the long-arm statute. Miller v. Provident Adver. & Mktg., 155 So.3d 181, 2014 Miss. App. LEXIS 339 (Miss. Ct. App. 2014), cert. denied, — So.3d —, 2015 Miss. LEXIS 21 (Miss. 2015), cert. denied, 154 So.3d 33, 2015 Miss. LEXIS 29 (Miss. 2015), cert. denied, — So.3d —, 2015 Miss. LEXIS 34 (Miss. 2015), cert. denied, — So.3d —, 2015 Miss. LEXIS 32 (Miss. 2015), cert. denied, — U.S. —, 135 S. Ct. 2862, 192 L. Ed. 2d 897, 2015 U.S. LEXIS 4230 (U.S. 2015).

Trial court had personal jurisdiction over a former wife’s alienation of affection claim under the Mississippi long-arm statute because there was an allegation of sexual activity between a paramour and the wife’s husband within the state of Mississippi that contributed to the breakup of the marriage; the fact that sexual activity occurred in Mississippi constituted purposeful availment for purposes of personal jurisdiction. However, the complaint did not allege that any of the acts relating to a claim of intentional infliction of emotional distress occurred in Mississippi or that the sexual activity that occurred in Mississippi inflicted emotional distress. Miller v. Provident Adver. & Mktg., 155 So.3d 181, 2014 Miss. App. LEXIS 339 (Miss. Ct. App. 2014), cert. denied, — So.3d —, 2015 Miss. LEXIS 21 (Miss. 2015), cert. denied, 154 So.3d 33, 2015 Miss. LEXIS 29 (Miss. 2015), cert. denied, — So.3d —, 2015 Miss. LEXIS 34 (Miss. 2015), cert. denied, — So.3d —, 2015 Miss. LEXIS 32 (Miss. 2015), cert. denied, — U.S. —, 135 S. Ct. 2862, 192 L. Ed. 2d 897, 2015 U.S. LEXIS 4230 (U.S. 2015).

Out-of-state law firm was subject to personal jurisdiction in Mississippi with respect to claims of legal malpractice and related other issues because firm committed tort against contractor within State of Mississippi, it had sufficient minimum contacts within State, and traditional notions of fair play and substantial justice were not offended because it purposefully availed itself of benefits and protections of Mississippi law. Baker & McKenzie, LLP v. Evans, 123 So.3d 387, 2013 Miss. LEXIS 548 (Miss. 2013).

As neither a hotel management company nor its president were doing business in Mississippi for purposes of the long-arm statute, Miss. Code Ann. §13-3-57, or had any reason to anticipate being haled into court there, dismissal of an action arising out of injuries a minor sustained at a Louisiana hotel for lack of personal jurisdiction was proper. Wilson v. Highpointe Hospitality, Inc., 62 So.3d 999, 2011 Miss. App. LEXIS 267 (Miss. Ct. App. 2011).

In a medical-malpractice action, the circuit court did not err in finding that traditional notions of fair play and substantial justice were not offended in exercising personal jurisdiction over the doctor because nothing in the record suggested that the trial court was an inefficient method of resolving the dispute or that it imposed an undue burden to have the doctor defend the suit in Mississippi. Dunn v. Yager, 58 So.3d 1171, 2011 Miss. LEXIS 204 (Miss. 2011).

In a medical-malpractice action, the circuit court did not err in finding that the long-arm statute, Miss. Code Ann. §13-3-57, applied to the doctor because the patient’s actual injury, not the mere consequences thereof, occurred in Mississippi. She filled the prescription in Mississippi, consumed the prescription drugs in Mississippi, and the effects of her injury were suffered in Mississippi. Dunn v. Yager, 58 So.3d 1171, 2011 Miss. LEXIS 204 (Miss. 2011).

Louisiana resident’s emails, phone calls, and text messages to a Mississippi resident were sufficient “minimum contacts” with Mississippi for the purposes of personal-jurisdiction analysis. Knight v. Woodfield, 50 So.3d 995, 2011 Miss. LEXIS 6 (Miss. 2011).

In a negligence case, the requirements for subject matter jurisdiction were met under Miss. Code Ann. §13-3-57 because a car wreck and alleged negligence occurred in Mississippi. Courtney v. McCluggage, 991 So. 2d 642, 2008 Miss. App. LEXIS 571 (Miss. Ct. App. 2008).

Physician, who was licensed and occasionally practiced medicine in Mississippi, and a medical clinic, which had an office and rented timeshare office space in Mississippi, subjected themselves to suit under the clear terms of the long-arm statute, Miss. Code Ann. §13-3-57, by doing business in the state. Considering the interests of Mississippi in providing a forum for legal redress for residents who were negligently injured by out-of-state physicians, the court found that the circuit court’s assumption of personal jurisdiction over the physician comported with traditional notions of fair play and substantial justice and did not offend U.S. Const. amend. XIV. Estate of Jones v. Phillips, 992 So. 2d 1131, 2008 Miss. LEXIS 420 (Miss. 2008).

Trial court erred in dismissing the homeowners’ claims alleging that the original owners knew of a home’s defects at the time they sold it to the subsequent owners because the assertion that the original owners committed a Mississippi tort sustained personal jurisdiction under Miss. Code Ann. §13-3-57, regardless of whether it was a tort against the homeowners or the subsequent owners. Estes v. Bradley, 954 So. 2d 455, 2006 Miss. App. LEXIS 912 (Miss. Ct. App. 2006), overruled in part, Windham v. Latco of Miss., Inc., 972 So. 2d 608, 2008 Miss. LEXIS 44 (Miss. 2008).

Miss. Code Ann. §13-3-57 permitted a district court in Mississippi to exercise personal jurisdiction over a helicopter lessor, which was a California corporation, and a platform designer, who was a Tennessee domiciliary, in an estate representative’s suit to recover damages for a decedent’s fall from a helicopter work platform because the fall occurred in Mississippi. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 2006 U.S. App. LEXIS 30391 (5th Cir. Miss. 2006), limited, Sutton v. Advanced Aquaculture Sys., 621 F. Supp. 2d 435, 2007 U.S. Dist. LEXIS 55396 (W.D. Tex. 2007).

Mississippi attorney’s breach of contract suit, filed in a Mississippi federal district court against Louisiana and Pennsylvania attorneys seeking payment for litigation services, was transferred under the Fifth Circuit’s first-to-file rule to a Louisiana federal district court in which defendants had previously filed a declaratory judgment action raising similar issues, even though Mississippi was a proper venue under 28 U.S.C.S. § 1391(a) because some of the acts sued upon took place there, the court had long-arm personal jurisdiction over defendants under Miss. Code Ann. §13-3-57, and Mississippi was a convenient forum under 28 U.S.C.S. § 1404(a). Street v. Smith, 456 F. Supp. 2d 761, 2006 U.S. Dist. LEXIS 62373 (S.D. Miss. 2006).

Where rental and financial services companies alleged that an affiliate of a rental services company tortiously interfered with a non-compete contract involving a Mississippi resident, the companies met the tort requirement of the long arm statute, Miss. Code Ann. §13-3-57, and also met the minimum contracts requirement of due process. U-Save Auto Rental of Am., Inc. v. Moses, 2006 U.S. Dist. LEXIS 5284 (S.D. Miss. Jan. 27, 2006).

Under Miss. Code Ann. §13-3-57, a district court in Mississippi had personal jurisdiction over a distributor in employees’ suit to recover funds for medical monitoring due to their exposure to beryllium-containing products sold by the distributor to their employer; although the distributor did not do business in Mississippi and sold the products to the employer in California, the injuries took place in Mississippi, and further, there was evidence that the distributor knew its products would be used only at the employer’s Mississippi facility. Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 2006 U.S. App. LEXIS 8509 (5th Cir. Miss. 2006).

In a products liability action, the injured worker’s motion for summary judgment was denied; it was premature in that he failed to allege any facts supporting the exercise of personal jurisdiction over the foreign manufacturer under Miss. Code Ann. §13-3-57, other than that the subject incident and his injuries occurred in Mississippi. Sims v. A & A Saw & Mach. Co., 2005 U.S. Dist. LEXIS 34351 (S.D. Miss. Sept. 7, 2005).

Where the tort and its resultant injuries occurred within Mississippi, the court’s exercise of personal jurisdiction over defendants was comfortably within the contours of the “tort prong” of Miss. Code Ann. §13-3-57; the allegedly defective pipe collapsing completed the tort (damage requirement) and created numerous economic effects (costs associated with the collapsing pipe and subsequent redrilling of the oil well). Tellus Operating Group, L.L.C. v. R & D Pipe Co., 377 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 19159 (S.D. Miss. 2005).

In a fraud suit brought by investors against defendants, a Pennsylvania attorney and his law firm, it was appropriate to exercise personal jurisdiction over defendants under the Mississippi long-arm statute, Miss. Code Ann. §13-3-57, because the investors alleged that the actual invasion of their legal rights occurred in Mississippi when they were induced to invest in a trust in reliance on an opinion letter directed by defendants to them in Mississippi. Vig v. Indianapolis Life Ins. Co., 384 F. Supp. 2d 975, 2005 U.S. Dist. LEXIS 18453 (S.D. Miss. 2005).

Court denied defendants’ motion to dismiss a physician’s breach of contract action for lack of personal jurisdiction because the fact that defendants sent an agent into Mississippi to help execute an additional portion of the contract was sufficient to satisfy the contract prong of the Mississippi long-arm statute, Miss. Code Ann. §13-3-57, and perhaps even the doing business prong. Durham v. Katzman, 375 F. Supp. 2d 495, 2005 U.S. Dist. LEXIS 17847 (S.D. Miss. 2005).

Application of the Mississippi long-arm statute, Miss. Code Ann. §13-3-57 (Rev. 2002), was inappropriate in an action filed in Mississippi against an Illinois resident based on the fact that the Illinois resident struck a vehicle filled with Mississippi residents. Illinois was the place where the tort was completed. Yatham v. Young, 912 So. 2d 467, 2005 Miss. LEXIS 672 (Miss. 2005).

Employees claimed that the court could assert personal jurisdiction over the manufacturer, a foreign corporation with no contacts in the forum state, because it was insufficiently separate from its subsidiary, which did have contacts in the forum state; however, the manufacturer’s vice-president stated that the manufacturer was a holding company incorporated under the laws of Ohio, and the subsidiary was separately and adequately capitalized and the manufacturer did not pay the subsidiary’s expenses. Thus, the contacts between the manufacturer and its subsidiary were insufficient to satisfy Mississippi’s long arm statute, Miss. Code Ann. §13-3-57. Paz v. Brush Engineered Materials, Inc., 351 F. Supp. 2d 580, 2005 U.S. Dist. LEXIS 665 (S.D. Miss. 2005), rev'd, in part, 445 F.3d 809, 2006 U.S. App. LEXIS 8509 (5th Cir. Miss. 2006), aff'd, 483 F.3d 383, 2007 U.S. App. LEXIS 7398 (5th Cir. Miss. 2007).

Where the employees attached a one-page sheet from the manufacturer’s website, which showed the name of the fabricator, among others, the document clearly did not provide evidence of contacts between the fabricator and the forum state sufficient for the exercise of personal jurisdiction under Miss. Code Ann. §13-3-57. Paz v. Brush Engineered Materials, Inc., 351 F. Supp. 2d 580, 2005 U.S. Dist. LEXIS 665 (S.D. Miss. 2005), rev'd, in part, 445 F.3d 809, 2006 U.S. App. LEXIS 8509 (5th Cir. Miss. 2006), aff'd, 483 F.3d 383, 2007 U.S. App. LEXIS 7398 (5th Cir. Miss. 2007).

As a company’s business contacts with the state were not systematic and continuous, and the personal injury lawsuit filed by an individual did not arise from the company’s contacts in the state, the company’s motion to dismiss for lack of personal jurisdiction was affirmed. Williams v. Bud Wilson's Mobile Home Serv., 887 So. 2d 830, 2004 Miss. App. LEXIS 670 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1437 (Miss. 2004).

In a negligence action by property owners in Mississippi regarding flooding, Mississippi had a strong interest in adjudicating the dispute because Mississippi residents were injured, Mississippi property was destroyed, and the City of Mobile, Alabama, and the Board of Water & Sewer Commissioners of the City of Mobile continued to release water from the subject reservoir. Also, the interest of the hundreds of other Mississippi property owners in obtaining convenient and effective relief was furthered by keeping the suit in Mississippi because their property was located in the county where the suit was filed; maintenance of the suit did not offend “traditional notions of fair play and substantial justice,” and application of the “long-arm” statute in the case did not violate the United States Constitution. Horne v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 2004 Miss. LEXIS 846 (Miss. 2004), cert. denied, 544 U.S. 922, 125 S. Ct. 1652, 161 L. Ed. 2d 479, 2005 U.S. LEXIS 2480 (U.S. 2005), cert. denied, 544 U.S. 922, 125 S. Ct. 1662, 161 L. Ed. 2d 480, 2005 U.S. LEXIS 2484 (U.S. 2005).

In a bad faith denial of insurance benefits suit filed by Florida residents, the district court in Mississippi lacked personal jurisdiction over an Iowa health management company that processed medical claims outside the forum. Walker v. World Ins. Co., 289 F. Supp. 2d 786, 2003 U.S. Dist. LEXIS 19503 (S.D. Miss. 2003).

Where Louisiana auto dealer’s radio ads reached into Mississippi, it sold autos to Mississippi residents, and it contracted with plaintiff bank in Mississippi, its minimum contacts with Mississippi allowed that state to exercise personal jurisdiction over the dealer; moreover, since the dealer’s facilities were not far from the forum, it was not unfair to force it to defend in Mississippi. BankPlus v. Toyota of New Orleans, 851 So. 2d 439, 2003 Miss. App. LEXIS 684 (Miss. Ct. App. 2003).

In a Jones Act case, the trial court had jurisdiction over a non-resident defendant that had numerous employees from Mississippi and recruited employees from Mississippi by advertising in that state; further, the fact that the defendant had entered into a contract with the plaintiff in Mississippi was alone sufficient to subject the defendant to the personal jurisdiction of the Mississippi courts. Diamond Offshore Mgmt. Co. v. Marks, 2003 Miss. LEXIS 88 (Miss. Feb. 27, 2003), op. withdrawn, 2007 Miss. LEXIS 237 (Miss. Apr. 26, 2007).

Court had personal jurisdiction over a Taiwanese manufacturer in a suit brought by two distributors for breach of contract and tortious interference with contractual and business relations; the manufacturer sent invoices to and received payment from the distributors’ Mississippi address and allegedly interfered with the distributors’ contracts and business relations in Mississippi. Madami Int'l, LLC v. Dinli Metal Indus. Co., 276 F. Supp. 2d 586, 2002 U.S. Dist. LEXIS 26630 (S.D. Miss. 2002).

In an action arising from the purchase from the defendant by the plaintiff of tubing that was to be regularly used as production tubing for down-hole use in oil wells and saltwater disposal wells, two defendants who previously purchased and resold the tubing at issue were not subject to personal jurisdiction in Mississippi where both were foreign corporations, neither had any dealings with the plaintiff in Mississippi or elsewhere, and the transactions in which they sold the tubing occurred outside Mississippi. Willow Creek Exploration Ltd. v. Tadlock Pipe & Equip. Inc., 186 F. Supp. 2d 675, 2002 U.S. Dist. LEXIS 2570 (S.D. Miss. 2002).

The defendant nonresident corporation was entitled to dismissal of the complaint because the court had no basis for asserting personal jurisdiction over it, notwithstanding that the alleged tort was committed partly in Mississippi where the plaintiff was residing when he discovered an allegedly erroneous credit report by the defendant, since the defendant did not have minimum contacts with Mississippi and did not purposely avail itself of the benefits and privileges of the state. Shaw v. Excelon Corp., 167 F. Supp. 2d 917, 2001 U.S. Dist. LEXIS 18090 (S.D. Miss. 2001).

The defendant foreign corporation was not subject to long arm jurisdiction where the contract between the defendant and the plaintiff Mississippi corporation was entered into in Tennessee and was to be performed in Tennessee. McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So. 2d 952, 2001 Miss. LEXIS 133 (Miss. 2001).

The defendant was “doing business” within the contemplation of the long-arm statute where she allegedly transmitted an email to a recipient or recipients in Mississippi as an attempt to solicit business for a particular website. Internet Doorway, Inc. v. Parks, 138 F. Supp. 2d 773, 2001 U.S. Dist. LEXIS 5128 (S.D. Miss. 2001).

The Mississippi long-arm statute did not allow a federal district court sitting in Mississippi to take jurisdiction over the defendant because the plaintiff, as a nonresident of Mississippi, could not take advantage of the contract portion of the Mississippi long-arm statute and any tort committed by the defendant was committed solely in Mexico. Submersible Sys. v. Perforadora Central, S.A. de C.V., 249 F.3d 413, 2001 U.S. App. LEXIS 8083 (5th Cir. Miss.), cert. denied, 534 U.S. 1055, 122 S. Ct. 646, 151 L. Ed. 2d 564, 2001 U.S. LEXIS 10844 (U.S. 2001).

In an action arising from the plaintiff’s purchase of an airplane engine from an Arkansas corporation, the Arkansas corporation was not subject to jurisdiction in Mississippi since (1) no part of the contract between the parties was performed in whole or in part by either party in Mississippi, (2) no element of the alleged tortious conduct took place in Mississippi, (3) the defendants did not have a presence in Mississippi which was continuing and substantial in nature, (4) the defendants did not have sufficient minimum contacts with Mississippi such that maintaining the action would not offend traditional notions of fair play and substantial justice, and (5) the defendants did not have continuous and systematic contacts with Mississippi such that due process was satisfied. Thrash Aviation, Inc. v. Kelner Turbine, Inc., 72 F. Supp. 2d 709, 1999 U.S. Dist. LEXIS 17788 (S.D. Miss. 1999).

Editor’s Notes —

Former §13-3-59 authorized the court to order such continuances as necessary to afford a nonresident reasonable opportunity to defend the action, provided that no action was triable until after thirty (30) days from date of service of process upon the secretary of state, provided that the fee required to be paid to the sheriff of Hinds County shall be taxed as other costs, and required the secretary of state to keep a record of all process served upon him.

Former §13-3-61 provided for service when the defendant was a nonresident doing business in state, and provided that certain corporations were exempt.

Cross References —

For another section derived from same 1942 code section, see §11-11-13.

Service of process on one carrying on business in state by or through a trustee or attorney in fact, see §13-3-41.

Service of process when defendant is nonresident doing business in the state, see §13-3-57.

Service of process upon nonresident operating a vessel or motorboat on any of the state’s waters, see §59-21-161.

Service of process on nonresident carnivals, circuses, fairs, and similar exhibitions, see §§75-75-1 to75-75-19.

Service of process upon carnivals, circuses, and fairs doing business in the state but not permanently domiciled therein, see §§75-75-1 et seq.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

Circuit court filing and service requirements for pleadings and motions, see Miss. Uniform Rule of Circuit and County Court Practice 2.06.

RESEARCH REFERENCES

ALR.

Constitutionality and construction of statute authorizing constructive or substituted service of process on, and continuation of pending action against, foreign representative of deceased nonresident driver of motor vehicle, arising out of accident occurring in state. 18 A.L.R.2d 544.

Venue of action against nonresident motorist served constructively under statute. 38 A.L.R.2d 1198.

What is “motor vehicle” or the like within statute providing for constructive or substituted service of process on nonresident motorists. 48 A.L.R.2d 1283.

Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists. 53 A.L.R.2d 1164.

Who subject to substituted service of process under statutes providing for such service on nonresident motorists. 53 A.L.R.2d 1164.

Doctrine of forum non conveniens: assumption or denial of jurisdiction in action between nonresident individuals based upon tort occurring within forum state. 92 A.L.R.3d 797.

Am. Jur.

8 Am. Jur. 2d (Rev), Automobiles and Highway Traffic §§ 827-856.

CJS.

60A C.J.S., Motor Vehicles §§ 989-991 et seq.

JUDICIAL DECISIONS

1. Construction and application, generally.

2. Persons within purview of statute.

3. Giving of notice.

4. Quashal of service.

5. Decisions under former laws.

1. Construction and application, generally.

Miss. Code Ann. §13-3-63 is not the exclusive method by which nonresident motorists have to be served because §13-3-63 merely provides an alternative method to serve a particular class of out-of-state defendants; even if the statute provided an exclusive method of service, it would conflict with Miss. R. Civ. P. 4. Bloodgood v. Leatherwood, 25 So.3d 1047, 2010 Miss. LEXIS 25 (Miss. 2010).

Where plaintiffs delivered copies of a summons and complaint to the Mississippi Secretary of State who in turn sent the documents to a nonresident motorist by certified mail, restricted delivery, but the documents were returned to the Secretary as unclaimed, such service was insufficient to permit entry of a default judgment against the nonresident; despite case law indicating that service was complete upon delivery to the Secretary, Miss. Code Ann. §13-3-63 clearly stated that judgment could not be entered against the nonresident until the return receipt was filed with the court, indicating that the nonresident either received or refused delivery of the documents. Arceneaux v. Davidson, 325 F. Supp. 2d 742, 2004 U.S. Dist. LEXIS 13333 (S.D. Miss. 2004).

Circuit Court properly ordered examination of judgment debtor and production of documents in county where suit was filed, where judgment debtor had waived its right to argue that it could not be found in that county, and thus statute concerning examination of judgment debtor by judgment creditor was construed consistently with venue already established for trial of action. H & W Transfer & Cartage Service, Inc. v. Griffin, 511 So. 2d 895, 1987 Miss. LEXIS 2610 (Miss. 1987).

The Federal Motor Carrier Act § 221(c), which provides that every motor carrier shall file in each state in which it operates a designation of a person to receive service on its behalf, does not preempt §13-3-63 and service may be made upon a non-resident motor carrier under either statute. Trailer Express, Inc. v. Gammill, 403 So. 2d 1292, 1981 Miss. LEXIS 2189 (Miss. 1981).

Where the notice of service of a non-resident corporation was delivered to the president of the corporation in accord with statutory requirements, and an interlocutory default judgment was entered upon failure of the defendant to answer, the default judgment could not be set aside on the grounds that the president of the corporation mislaid the notice due to anxiety over his wife’s recent death. Western Chain Co. v. Brownlee, 317 So. 2d 418, 1975 Miss. LEXIS 1758 (Miss. 1975).

The jurisdiction of the court under this statute is not restricted to suits by Mississippi residents, and the circuit court had jurisdiction over a suit arising out of an accident which occurred in Mississippi even though the suit did not involve the interests or rights of any resident of Mississippi. Vick v. Cochran, 316 So. 2d 242, 1975 Miss. LEXIS 1705 (Miss. 1975).

Where default judgment in non-resident motorist case was entered on the first day of a scheduled two week return term, and, upon learning of decision, counsel for defendants promptly filed motion to set aside default judgment in which they set forth a meritorious defense, judgment should have been set aside and the case set for trial on its merits either immediately or on a day certain within the remainder of the term. Martin v. Palmertree, 312 So. 2d 447, 1975 Miss. LEXIS 1645 (Miss. 1975).

Under Code 1942, § 1438, providing that service of process made upon the secretary of state shall be made in the same manner and by the same procedure and with the same force and effect as is provided by the nonresident motorist statute as amended and supplemented, service can be made pursuant to a subsequently inserted provision of the nonresident motorist statute, Code 1942, § 9352-61, so as to permit service upon any person who is a nonresident at the time the action is filed, even though at the time of the incident giving rise to the action, such person was a resident of Mississippi. McKnight v. Dyer, 331 F. Supp. 343, 1971 U.S. Dist. LEXIS 12274 (N.D. Miss. 1971).

This section [Code 1942, § 9352-61] is strictly construed and the provisions thereof must be followed to give the court jurisdiction over a nonresident. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So. 2d 438, 1968 Miss. LEXIS 1448 (Miss. 1968).

This section [Code 1942, § 9352-61] reflects the legislature’s intent to create a service of process tantamount for all purposes to personal service. Ellis v. Milner, 194 So. 2d 232, 1967 Miss. LEXIS 1406 (Miss. 1967).

This section [Code 1942, § 9352-61] has the purpose of placing a nonresident motorist summoned under it on a parity with a resident in all respects, it requires the nonresident using state highways to consent to service of process upon the secretary of state, it puts nonresidents on the same footing as residents in litigation of accidents growing out of the use of state highways, and they have equal procedural rights with residents once the prescribed service of process has been effected. Ellis v. Milner, 194 So. 2d 232, 1967 Miss. LEXIS 1406 (Miss. 1967).

The term “personal representative” as used in this section [Code 1942, § 9352-61] is the equivalent of “legal representative,” and is intended to include persons such as the administrator or executor of a nonresident deceased motorist. Hill v. James, 252 Miss. 501, 175 So. 2d 176, 1965 Miss. LEXIS 1126 (Miss. 1965).

A Mississippi court does not acquire jurisdiction of the nonresident widow and minor children of a deceased out-of-state motorist sued in their individual capacities under the survival provisions of this section [Code 1942, § 9352-61] which apply only to the administrator, executor, or other legal representative of the decedent. Hill v. James, 252 Miss. 501, 175 So. 2d 176, 1965 Miss. LEXIS 1126 (Miss. 1965).

This provision, being in derogation of the common law, should be strictly construed. Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604, 1964 Miss. LEXIS 383 (Miss. 1964).

The basic purposes of the statute are to subject to the jurisdiction of the Mississippi court nonresidents concerned in the operation of motor vehicles in Mississippi, in order that its citizens may assert in its courts any proper claims against such persons, and to afford a nonresident defendant the opportunity to adequately defend an accident suit. Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604, 1964 Miss. LEXIS 383 (Miss. 1964).

A garnished liability insurer has the burden of disproving that the person served was the insured. Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604, 1964 Miss. LEXIS 383 (Miss. 1964).

This is a procedural statute, remedial in nature, and as such to be given a liberal construction. Stroo v. Farmer, 200 F. Supp. 344, 1961 U.S. Dist. LEXIS 2899 (S.D. Miss. 1961).

Where a truck from another state which had carried a load of hay to a Mississippi destination was, at the time of the accident, standing in a barn on private property while the driver was still in his seat and the engine was running, this section [Code 1942, § 9352-61] applied regardless of whether the wheels of the truck were turning or not. Stroo v. Farmer, 200 F. Supp. 344, 1961 U.S. Dist. LEXIS 2899 (S.D. Miss. 1961).

The purpose of this section [Code 1942, § 9352-61] is to subject to the jurisdiction of the Mississippi courts nonresidents concerned in the operation of automobiles within the state within the terms of the statute, so that its citizens may assert as against such persons their claims in local courts. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

The word “operation” includes all means and extent of use of the highways of Mississippi which nonresidents may acquire under the terms of the statute, and also any similar manner of use even though the privilege be not obtained precisely in accordance with the general statutory provisions; and, it, therefore, as a basis of acquiring jurisdiction, brings within its reach a nonresident owner in whose behalf the motor vehicle is driven over the Mississippi highways. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

A distinction is made between “operator” and “driver”; the operator is recognized to be the owner operating the motor vehicle, and while the driver is recognized as also operating, he is the person actually driving at any given time. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

2. Persons within purview of statute.

In a matter arising out of a high speed chase, which allegedly resulted in decedents’ deaths, neither an Alabama county or that county’s sheriff from Alabama entered upon the highways of Mississippi, involving themselves in efforts to stop the fleeing felons, or in any other way subjected themselves to jurisdiction under Miss. Code Ann. §13-3-63; therefore, the supreme court proceeded with a long-arm analysis to determine if jurisdiction could be conferred upon them under the Mississippi long-arm statute, Miss. Code Ann. §13-3-57, and the supreme court found no minimum contacts, so the county and the sheriff were not subject to personal jurisdiction in Mississippi. City of Cherokee v. Parsons, 944 So. 2d 886, 2006 Miss. LEXIS 583 (Miss. 2006).

City police officer and deputy sheriff from Alabama, who were involved in a high-speed chase in Mississippi that allegedly resulted in the decedents’ death, separately subjected themselves to the personal jurisdiction of Mississippi courts for actions arising out of accidents that occurred in Mississippi. City of Cherokee v. Parsons, 944 So. 2d 886, 2006 Miss. LEXIS 583 (Miss. 2006).

A nonresident owner of an automobile who operates it, or causes it to be operated by another, over the highways of the state of Mississippi, subjects himself, within the terms of the statute, to service of process which is sufficient to require him to defend a suit upon the merits. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

Nonresident seller of automobiles who procured drivers, as purchaser’s agent, to deliver cars sold to purchaser residing in another state was neither operator nor driver within this section [Code 1942, § 9352-61]; and, therefore, he was not subject to substituted service of process in death action resulting from an accident involving one of the cars on a Mississippi highway. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

3. Giving of notice.

Circuit court erred in dismissing a driver’s personal injury complaint with prejudice because the driver exhibited good cause for not timely serving process on the insured where the record clearly showed that over a period of almost two years, the driver unsuccessfully attempted to locate the insured, the Secretary of State attempted to forward the summons to the insured, but it was returned unclaimed, the insured could not be located by the driver, the courts, or his own insurance carrier, and the circuit court failed to consider that the statute of limitations could be tolled. Darville v. Mejia, 184 So.3d 312, 2016 Miss. App. LEXIS 3 (Miss. Ct. App. 2016).

In a tort action arising out of a motor vehicle accident, a nonresident defendant was properly served since (1) the plaintiffs complied with §13-3-63 by serving process on the secretary of state, providing the address given by the defendant to law enforcement officials on the date of the accident, and (2) the return receipt attached to the defendant’s motion to dismiss, showing that the parcel was sent to the motorist from the office of the secretary of state, constituted proof that the secretary of state complied with the mailing requirement. Wesley v. Mississippi Transp. Comm'n, 857 F. Supp. 523, 1994 U.S. Dist. LEXIS 10036 (S.D. Miss. 1994).

A nonresident defendant was not entitled to dismissal of an action arising from a motor vehicle accident based on the provision of §13-3-63 which requires that notice of service of process on the secretary of state actually be delivered to the nonresident defendant, although he did not concede that he had received a copy of the summons and complaint, where he had actual knowledge of the commencement of the suit, the basis of the suit, and the identity of the other defendants in the action. Wesley v. Mississippi Transp. Comm'n, 857 F. Supp. 523, 1994 U.S. Dist. LEXIS 10036 (S.D. Miss. 1994).

Notice to a nonresident motorist by one of the three methods provided by this section [Code 1942, § 9352-61] is essential to confer jurisdiction upon the local courts. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So. 2d 438, 1968 Miss. LEXIS 1448 (Miss. 1968).

This section [Code 1942, § 9352-61] provides three methods for the service of process upon a nonresident, and it is essential to due process that a nonresident defendant be given notice of the action against him in accordance with the provisions of the section. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So. 2d 438, 1968 Miss. LEXIS 1448 (Miss. 1968).

Where it appears conclusively that the notice intended for a nonresident motorist was forwarded to an address which did not exist, that there was no return receipt from the defendant, no evidence of refusal of the letter by him, nor any evidence of actual delivery of the process to him, a default judgment entered by the court against such defendant was void. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So. 2d 438, 1968 Miss. LEXIS 1448 (Miss. 1968).

The general rule is that substituted service of process is complete when made upon the designated state official, and therefore receipt by the nonresident defendant of the specified notice of such service is not the determinative date for completion of process. Ellis v. Milner, 194 So. 2d 232, 1967 Miss. LEXIS 1406 (Miss. 1967).

Where there was a passage of over a month between the date of service on the secretary of state and the rendition of a default judgment against a nonresident defendant, and he had no one file pleadings for him in the court or make any other representation, the trial court did not abuse its discretion in entering a default judgment. Ellis v. Milner, 194 So. 2d 232, 1967 Miss. LEXIS 1406 (Miss. 1967).

Service under this section [Code 1942, § 9352-61] by mailing a summons to defendant at his correct address is good although another address is stated in the summons, and the name given therein was an alias. Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So. 2d 604, 1964 Miss. LEXIS 383 (Miss. 1964).

4. Quashal of service.

Upon consideration of a motion to quash service of summons in a death action growing out of an automobile accident, the question is whether the allegations of the complaint and the facts of the case as disclosed show that the defendant brought before the court is such a defendant as is subjected by the statute to substituted service of process. Tanksley v. Dodge, 181 F.2d 925, 1950 U.S. App. LEXIS 2724 (5th Cir. Miss. 1950).

5. Decisions under former laws.

Under the Alabama nonresident motorist statute, the Alabama court had jurisdiction where both parties were nonresidents and the judgment is entitled to full faith and credit in Mississippi. Burns v. Godwin, 211 Miss. 310, 51 So. 2d 486, 1951 Miss. LEXIS 357 (Miss. 1951).

The constitutionality of this statute is affirmed. Bouchillon v. Jordan, 40 F. Supp. 354, 1941 U.S. Dist. LEXIS 2937 (D. Miss. 1941).

The fact that no venue is provided in the act itself does not render the act as so unreasonable as to offend any part of the constitution. Bouchillon v. Jordan, 40 F. Supp. 354, 1941 U.S. Dist. LEXIS 2937 (D. Miss. 1941).

In cases not within the operation of Chapter 246 of the Act of 1940 fixing the venue in the county where the cause of action accrues, the proper venue of an action commenced as provided in this statute is the county where the secretary of state resides. Bouchillon v. Jordan, 40 F. Supp. 354, 1941 U.S. Dist. LEXIS 2937 (D. Miss. 1941).

Editor’s Notes —

Former §13-3-65 provided for issuance, execution, and return of a writ of scire facias.

Former §13-3-67 stated that any process appearing to be in other respects duly served, shall be good, though not directed to any officer.

Cross References —

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

ALR.

Mistake or error in middle initial or middle name of party as vitiating or invalidating civil process, summons, or the like. 6 A.L.R.3d 1179.

Am. Jur.

62 Am. Jur. 2d (Rev), Process §§ 63, 64, 298 et seq.

Amendment of process, 20 Am. Jur. Pl & Pr Forms (Rev), Process, Forms 21-53.

CJS.

72 C.J.S., Process §§ 123 et seq., 136-140 et seq.

JUDICIAL DECISIONS

1. In general.

2. Defects not amendable.

1. In general.

A search warrant delivered to the sheriff “to any lawful officer of said county” is not void. Such process is amendable. Matthews v. State, 134 Miss. 807, 100 So. 18, 1924 Miss. LEXIS 327 (Miss. 1924).

Where a deputy clerk issues an attachment writ in the name of the clerk, without affixing his own name as deputy, the writ may be amended. Wimberly v. Boland, 72 Miss. 241, 16 So. 905, 1894 Miss. LEXIS 121 (Miss. 1894).

The failure of the circuit clerk to affix his signature to a venire facias is merely an irregularity amendable by motion and a motion to quash dispenses with amendment where the writ has already served its purpose. Hale v. State, 72 Miss. 140, 16 So. 387, 1894 Miss. LEXIS 88 (Miss. 1894).

A writ of seizure (under Laws 1876) which commanded a seizure of agricultural products, but named no defendant and contained no personal summons, was not void. Dogan v. Bloodworth, 56 Miss. 419, 1879 Miss. LEXIS 140 (Miss. 1879).

Where the name of a defendant is changed both in the declaration and writ by the plaintiff, the writ will not for that reason be quashed. Maxey v. Strong, 53 Miss. 280, 1876 Miss. LEXIS 65 (Miss. 1876).

Where the process is made returnable to the wrong term of the court, the defect may be amended on motion and the appearance of the party to the motion obviates the necessity of the amendment. Harrison v. Agricultural Bank, 10 Miss. 307, 1844 Miss. LEXIS 148 (Miss. 1844).

2. Defects not amendable.

Search warrant issued in connection with a prosecution for violation of intoxicating liquor laws with no return day named therein is void and cannot be amended. Buxton v. State, 205 Miss. 692, 39 So. 2d 310, 1949 Miss. LEXIS 460 (Miss. 1949).

A search warrant dated only “this the 12th day of Johnson, 194-” was void and not subject to amendment by permission of the court. Johnson v. State, 202 Miss. 233, 31 So. 2d 127, 1947 Miss. LEXIS 264 (Miss. 1947).

An execution issued to the sheriff of another county by the clerk of a circuit court on a duly enrolled judgment of a justice of the peace of his county, returnable before such a justice, is void and not amendable under this section [Code 1942, § 1873]. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

A summons issued during a term of court returnable instanter is a nullity and therefore is not amendable under this section [Code 1942, § 1873]. Joiner v. Delta Bank, 71 Miss. 382, 14 So. 464, 1893 Miss. LEXIS 187 (Miss. 1893).

Editor’s Notes —

Former §13-3-71 authorized a defendant to waive process and enter an appearance without pleading.

Cross References —

Duty of the sheriff to execute and return process, see §19-25-37.

Criminal offense of resisting authorized person attempting to serve or execute process, see §97-9-75.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Process §§ 54, 58.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

Cross References —

Suing out of an alias when the defendant shall not be found, see §13-3-15.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions §§ 115-118.

62 Am. Jur. 2d, Process §§ 278, 282 et seq.

CJS.

72 C.J.S., Process §§ 105, 106 et seq.

Cross References —

Duty of the sheriff to execute and return process, see §19-25-37.

Rule governing the service of summons, summons by publication, return of process, and the like, see Miss. R. Civ. P. 4.

RESEARCH REFERENCES

ALR.

Sheriff’s deed as prima facie evidence of return. 36 A.L.R. 1001, 108 A.L.R. 672.

Editor’s Notes —

Former §13-3-79 specified when persons other than sheriff or coroner could be appointed by a judge to execute process.

Cross References —

Execution of process issued by the justice of the peace, see §11-9-107.

Power of the justice of the peace to appoint person to execute process when an authorized person cannot be had in time, see §11-9-109.

Authority of the justice of the peace to issue a warrant for the arrest of an offender coming into the county, see §99-3-21.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process §§ 124, 125, 129-131, 267.

CJS.

72 C.J.S., Process §§ 33-38.

JUDICIAL DECISIONS

1. In general.

Process can only be served by an officer authorized by statute. This statute, authorizing the service of process in certain cases by justices of the peace, does not empower a justice of the peace to serve a summons issued by himself. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 1901 Miss. LEXIS 24 (Miss. 1901).

Neither an interested sheriff nor his deputy, whether general or special, can serve the writ. Dyson v. Baker, 54 Miss. 24, 1876 Miss. LEXIS 5 (Miss. 1876).

Process addressed to an officer interested in the case will be quashed on timely application. McLeod v. Harper, 43 Miss. 42, 1870 Miss. LEXIS 3 (Miss. 1870).

Cross References —

Notice served on attorney of party being as valid and effectual as if served on party himself, see §11-49-11.

Duty of the sheriff to execute all orders and decrees of the circuit and chancery courts directed to him to be executed, see §19-25-35.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process § 267.

CJS.

72 C.J.S., Process §§ 47-52.

JUDICIAL DECISIONS

1. In general.

A bill of complaint was erroneously dismissed for the complainant’s failure to answer interrogatories within 30 days after service thereof, where the complainant had not been served with notice of the filing of the interrogatories by a sheriff or other legal officer. Robinson v. Hemphill, 229 So. 2d 827, 1969 Miss. LEXIS 1257 (Miss. 1969).

List of special venire and copy of the indictment need not be served on accused by sheriff. Ivey v. State, 154 Miss. 60, 119 So. 507, 1928 Miss. LEXIS 198 (Miss. 1928).

Service under this section [Code 1942, § 1876] must be made by the sheriff or other lawful officer. Merchants' Grocery Co. v. Merchants' Trust & Banking Co., 119 Miss. 99, 80 So. 494, 1918 Miss. LEXIS 17 (Miss. 1918).

Cross References —

Power of circuit court to hear and determine motions against officers for money collected but not paid on demand to party entitled thereto, see §9-7-89.

Summary proceeding on motion by client against attorney for failing to pay over money received on client’s behalf, see §11-49-3.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Process §§ 107, 110.

CJS.

72 C.J.S., Process § 107.

RESEARCH REFERENCES

ALR.

Sufficiency of jurat or certificate to affidavit for publication. 1 A.L.R. 1573, 116 A.L.R. 589.

Am. Jur.

62 Am. Jur. 2d, Process §§ 292 et seq.

CJS.

72 C.J.S., Process §§ 121, 122.

JUDICIAL DECISIONS

1. In general.

No reversible error was found in trial judge excluding testimony directed toward identity of person who actually served summons; one acting generally as deputy sheriff, under written appointment from sheriff, although not having qualified according to law, is de facto officer and between third parties his actions are valid; and, in absence of proof to contrary, it is presumed that person whose name was appended to return on writ as special deputy was duly authorized as such. Pointer v. Huffman, 509 So. 2d 870, 1987 Miss. LEXIS 2583 (Miss. 1987).

A motion by plaintiff to permit an amendment to the return of service of process to show that the person served was defendant’s designated agent for accepting service of process was improperly denied where the testimony of deputy sheriff who executed the summons was competent to amend his return for such purposes and where such an amendment would be a ministerial act permitted by this section. Taylor v. F. & C. Contracting Co., 362 So. 2d 625, 1978 Miss. LEXIS 2118 (Miss. 1978).

Where a judgment by default has been rendered at the return term upon a return of personal service of a summons apparently regular such judgment may, at a subsequent term, be vacated by a motion showing that the return was false and that the summons had only been served four days before its return day, and the court will direct an issue of fact to try the truth of the return. If the motion be sustained, the suit will be a pending one. Meyer Bros. v. Whitehead, 62 Miss. 387, 1884 Miss. LEXIS 90 (Miss. 1884).

The statute clearly contemplates that the party objecting to the return in a pending action should plead the facts in the nature of a plea in abatement. A mere motion to set aside should be overruled and testimony thereon refused. Mayfield v. Barnard, 43 Miss. 270, 1870 Miss. LEXIS 36 (Miss. 1870).

Editor’s Notes —

Former §13-3-89 provided that when a summons or citation was quashed on motion of defendant, the case could be continued for the term, but that the defendant was deemed to have entered his appearance.

RESEARCH REFERENCES

ALR.

Reciprocal rights, duties, and liabilities where driver of motor vehicle attempts to pass on right of other motor vehicle proceeding in same direction. 38 A.L.R.2d 114.

Am. Jur.

4 Am. Jur. 2d, Appearance §§ 2-4.

2 Am. Jur. Pl & Pr Forms (Rev), Appearance, Forms 6, 7, 9, 11, 12, 14.

CJS.

6 C.J.S., Appearances § 12.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

Similar legislation in Texas, forbidding the defendant to come into court and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, has been held not to deprive him of liberty or property within the prohibition of the Fourteenth Amendment to the Federal Constitution. York v. Texas, 137 U.S. 15, 11 S. Ct. 9, 34 L. Ed. 604, 1890 U.S. LEXIS 2057 (U.S. 1890); Kauffman v. Wootters, 138 U.S. 285, 11 S. Ct. 298, 34 L. Ed. 962, 1891 U.S. LEXIS 2082 (U.S. 1891).

2. Construction and application.

Following a successful appeal from an order overruling a motion to set aside a final decree because of defective process, the defendant is presumed to have entered her appearance and no new process is necessary. High v. High, 186 So. 2d 196, 1966 Miss. LEXIS 1292 (Miss. 1966).

Defendant’s appeal from justice court and appearance in circuit court and motion to quash process and dismiss for want of jurisdiction constituted appearance and waiver of absence of process. Turner v. Williams, 162 Miss. 258, 139 So. 606, 1932 Miss. LEXIS 312 (Miss. 1932).

An appeal of a case from the justice of the peace court to the circuit court gives the circuit court jurisdiction of the defendant. Illinois C. R. Co. v. Swanson, 92 Miss. 485, 46 So. 83, 1908 Miss. LEXIS 214 (Miss. 1908).

Cross References —

Power of the chancery court to issue subpoenas for the attendance of witnesses, see §9-5-85.

Power of the justice of the peace to issue subpoenas for the attendance of witnesses, see §11-9-115.

Power of arbitrators in certain arbitration proceedings to subpoena witnesses, see §11-15-117.

Issuance of subpoenas in habeas corpus proceedings, see §11-43-39.

Summons generally, see §13-3-5.

Power of the foreman of a grand jury to issue subpoenas for attendance of witnesses, see §13-5-63.

Amounts of witness fees, see §25-7-47.

Summoning witnesses to appear before courts-martial, see §33-13-321.

Power of banking examiners and commissioner of banking and consumer finance to subpoena witnesses, see §81-1-85.

For another section derived from same 1942 code section, see §99-9-11.

Power of a conservator of the peace, in examinations had before him for offenses, to issue subpoenas, see §99-15-9.

Right to subpoena witnesses under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-23.

For the rule governing subpoenas, see Miss. R. Civ. P. 45.

Procedural requirements for requests for subpoenas in circuit courts, see Miss. Uniform Rule of Circuit and County Court Practice 2.01.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d, Witnesses §§ 7 et seq.

CJS.

98 C.J.S., Witnesses §§ 20-66.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 11:1.

JUDICIAL DECISIONS

1. In general.

A witness attending court cannot claim attendance from the opposite party who loses the suit unless he has been subpoenaed. Yazoo & M. V. R. Co. v. Richardson, 104 Miss. 575, 61 So. 649, 1913 Miss. LEXIS 66 (Miss. 1913).

Editor’s Notes —

Former §13-3-95 related to issuance of subpoena requiring attendance before master, commissioner, referee, or surveyor.

Former §13-3-97 related to issuance of subpoena for witness to give dispositions for use in other states.

Former §13-3-99 related to process to compel attendance of witness in certain counties during term.

Former §13-3-101 related to service of subpoena.

Cross References —

Form of an attachment for a witness issued by a justice of the peace, see §11-9-121.

Witness not obeying a subpoena served on him in a habeas corpus proceeding, see §11-43-49.

For another section derived from same 1942 code section, see §99-9-19.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d (Rev), Witnesses §§ 6 et seq.

Attachment of witness for failure to obey subpoena, 25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Forms 96, 97.

Attachment of witness for failure to obey subpoena, 21 Am. Jur. Pl & Pr Forms, Witnesses, Form 21:738.

CJS.

98 C.J.S., Witnesses §§ 92, 108-115, 132-141, 143.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 11:1.

Cross References —

For another section derived from same 1942 code section, see §99-9-21.

RESEARCH REFERENCES

ALR.

Uniform Act to secure attendance of witnesses from without the state in criminal proceedings. 44 A.L.R.2d 732.

Am. Jur.

Scire facias on judgment against witness failing to obey subpoena, 25 Am. Jur. Pl & Pr Forms (Rev), Witnesses, Form 93.

Writ of scire facias against defaulting witness, 18 Am. Jur. Pl & Pr Forms, Scire Facias, Forms 18:181, 18:182.

JUDICIAL DECISIONS

1. In general.

After the state rested its case in a prosecution for assault and battery with an intent to kill, the district attorney had authority to release a witness subpoenaed by the state, who had not been subpoenaed by the defendant. Nicholson v. State, 230 Miss. 267, 92 So. 2d 654, 1957 Miss. LEXIS 366 (Miss. 1957).

Cross References —

For another section derived from same 1942 code section, see §99-9-17.

Cross References —

Filing and service, see Miss. R. App. P. 25.

Substitution of parties, see Miss. R. App. P. 43.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d (Rev), Process §§ 8, 9.

CJS.

72 C.J.S., Process §§ 6-11.

JUDICIAL DECISIONS

1. In general.

Where the landowners, the trustee, and the mortgagee in a deed of trust on property sought to be acquired by eminent domain proceedings were not summoned to appear in the supreme court, that court cannot proceed until they have been properly made parties on appeal. Mississippi State Highway Com. v. Nixon, 253 Miss. 636, 170 So. 2d 631, 1965 Miss. LEXIS 1164 (Miss. 1965).

The appellee must have notice of an appeal to the supreme court. Beasley v. Cottrell, 94 Miss. 253, 47 So. 662, 1908 Miss. LEXIS 22 (Miss. 1908).

Cross References —

Duty of attorney general to direct the issuing of process necessary to carry into execution judgment in any cause represented by him, see §7-5-33.

Power of the circuit court to award executions, see §9-7-91.

Execution on judgment or decree appealed from not being issued when a bond for stay of execution is given, see §11-51-59.

Power of court clerks to make out executions for unpaid costs, see §11-53-73.

Execution against collateral to enforce security interest, see §75-9-501.

Duties of clerks and sheriffs with respect to executions issued on judgments rendered in suits on promissory notes and bills of exchange, see §75-13-7.

Provisions to effect that procedure on execution shall be as provided by statute, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Formal entry or docketing, of judgment as prerequisite to issuance of execution. 65 A.L.R.2d 1162.

Injury to credit standing, reputation, solvency, or profit potential as elements of damage resulting from wrongful execution against business property. 55 A.L.R.3d 911.

Am. Jur.

30 Am. Jur. 2d (Rev), Executions §§ 77 et seq.

General executions, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 31-33.

Special executions, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 41-46.

CJS.

33 C.J.S., Executions §§ 69, 85-88.

JUDICIAL DECISIONS

1. In general.

Bank executed on a summary judgment that was granted against corporation, and two other related actions were still pending; the pending lawsuits were choses in action and subject to a writ of execution, and the procedure selected by the bank, which was the initiation of a sheriff’s execution sale against the plaintiffs’ choses in action, was entirely appropriate. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

Prevailing party held not entitled to recover witness fees where certificate of allowance was not issued by clerk or demanded by witness during term of court or within five days thereafter, although witness made proper affidavit before clerk. Woodruff v. Bright, 175 Miss. 109, 166 So. 390, 1936 Miss. LEXIS 24 (Miss. 1936).

A justice of the peace cannot purchase property at an execution sale on an execution issued from his court. E. E. Forbes Piano Co. v. Hennington, 98 Miss. 51, 53 So. 777, 1910 Miss. LEXIS 70 (Miss. 1910).

An execution issued to the sheriff of another county by the clerk of a circuit court, on a duly enrolled judgment of a justice of the peace of his county, returnable before such justice, is not authorized by this section (Code 1892, § 3459), but is void. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

And such writ is not amendable under Code 1892, § 3439 (Code 1942, § 1873), and it is immaterial that the objection thereto was not made prior to a motion for new trial because the failure to object cannot vitalize a void writ. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

Cross References —

Time within which execution shall not be issued on judgment of a justice of the peace, see §11-9-131.

Form of an execution issued on a judgment of a justice of the peace, see §11-9-133.

Selection by a defendant of exempt personal property where an officer is about to levy an execution or attachment on personal property, see §85-3-3.

Judgment for personal injury not exceeding $10,000 being exempt from execution, see §85-3-17.

Issuance of a special writ of execution for the sale of a house, building, structure, or fixture and land, see §85-7-153.

Executions on judgments rendered against a principal and surety, see §87-5-13.

Criminal offense of resisting authorized person attempting to serve process, see §97-9-75.

Provisions to effect that procedure on execution shall be as provided by statute, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

With respect to execution sales of mobile homes for unpaid ad valorem taxes and any excess funds over which the officer conducting the sale is entitled to retain after payment of judgment liens in order of priority, there is both a statutory method (Section 13-3-181) and a remedy by rule (M.R.C.P.) for distribution of funds when there are conflicting claims thereto. Blaker, II, January 30, 1998, A.G. Op. #98-0023. Williamson v. Williamson, 52 Miss. 725, 1876 Miss. LEXIS 284 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions §§ 92 et seq.

Complaint, petition, or declaration against sheriff for failure to return execution, 22 Am. Jur. Pl & Pr Forms (Rev) Sheriffs, Police, and Constables, Form 91.

Complaint, petition, or declaration against sheriff for false return of execution, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Forms 93, 94.

Complaint, petition, or declaration against sheriff for neglect of deputy in failing to levy execution, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 32.

Complaint, petition, or declaration against surety to recover unsatisfied judgment against defaulting sheriff and deputy, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 21.

9A Am. Jur. Pl & Pr Forms (Rev), Executions, Form 21.1 (Affidavit – For issuance of execution).

Directions to execution officer, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 71-76.

Return to writ of execution, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 171-181.

Complaint against sheriff for failure to levy or return execution, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Forms 18:558-18:560, 18:562.

Complaint against sheriff for false return of execution, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Form 18:564.

Complaint on sheriff’s bond for failure to levy execution, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Form 18:592.

CJS.

33 C.J.S., Executions §§ 93 et seq.

JUDICIAL DECISIONS

1. In general.

The return of an officer showing the sale of land to a designated person does not transfer a title, it only gives the purchaser the right to demand a deed conveying title. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

An execution issued to the sheriff of another county by the clerk of a circuit court on a duly enrolled judgment of a justice of the peace of his county is unauthorized. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

A person is not disqualified to act as deputy sheriff in levying an execution because he is agent for the plaintiff in collecting the judgment and is to receive a commission on the collection. It is error to quash a levy because of such fact. Badley v. Ladd, 70 Miss. 688, 12 So. 832, 1893 Miss. LEXIS 35 (Miss. 1893).

An execution issued seventeen days before the return term, and received by the sheriff ten days after issuance, is not void. Skinner v. Wilson, 61 Miss. 90, 1883 Miss. LEXIS 77 (Miss. 1883); Williamson v. Williamson, 52 Miss. 725, 1876 Miss. LEXIS 284 (Miss. 1876).

An execution issued within five days of a term and made returnable thereto is void. Harris v. West, 25 Miss. 156, 1852 Miss. LEXIS 166 (Miss. 1852).

A sale of land made under an execution after its return day does not pass title. Lehr v. Doe, 11 Miss. 468, 1844 Miss. LEXIS 83 (Miss. 1844).

If an execution issued more than fifteen days before a term be made returnable to a later term, it will be void. Lehr v. Doe, 11 Miss. 468, 1844 Miss. LEXIS 83 (Miss. 1844).

Cross References —

For other sections derived from same 1942 code section, see §§13-3-117,13-3-119.

Issuance, execution, and return of execution, see Miss. Rule Civil Proc. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions §§ 115-118.

CJS.

33 C.J.S., Executions §§ 119-130.

Cross References —

For other sections derived from same 1942 code section, see §§13-3-115,13-3-119.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Under Section 13-3-117, the court should issue a writ of execution against all defendants who have had a judgment rendered against them. The sheriff has no duty under Section 13-3-117, except to serve the writs of execution which are issued by the court. Hooks, April 5, 1996, A.G. Op. #96-0163.

A taking, under Section 13-3-117, may be constructive rather than actual, so long as the officer assumes dominion and control over the property. Hooks, April 5, 1996, A.G. Op. #96-0163.

RESEARCH REFERENCES

Am. Jur.

Executions against multiple debtors, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 51-53.

Cross References —

For other sections derived from same 1942 code section, see §§13-3-115,13-3-117.

For the rule governing substitution upon the death of a party, see Miss. R. Civ. P. 25.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions § 52.

Proceedings where judgment debtor is deceased, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 401-411.

CJS.

33 C.J.S., Executions §§ 80-84.

JUDICIAL DECISIONS

1. In general.

Where before the issuance of execution one of several judgment defendants dies, a sale of his property thereunder without previous revivor against the heirs is void. Faison v. Johnson, 70 Miss. 214, 12 So. 152, 1892 Miss. LEXIS 94 (Miss. 1892).

The plaintiff may have execution against survivors though it must issue against all by name, with suggestion of death noted on the writ. Bowen v. Bonner, 45 Miss. 10, 1871 Miss. LEXIS 44 (Miss. 1871).

The failure to note the death of one will not vitiate the execution as to the other defendants. Wade v. Watt, Noble & Mobley, 41 Miss. 248, 1866 Miss. LEXIS 37 (Miss. 1866).

Cross References —

Power of court clerks to make out executions for unpaid costs, see §11-53-73.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Costs §§ 98-101.

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

JUDICIAL DECISIONS

1. In general.

Clerk of supreme court is not authorized to issue writs of garnishment on judgments by supreme court for costs incurred on appeal thereto. State v. Keeton, 176 Miss. 590, 169 So. 760, 1936 Miss. LEXIS 143 (Miss. 1936).

A case determining the application of costs collected on appeal without supersedeas. Boyd v. Applewhite, 123 Miss. 185, 85 So. 87, 1920 Miss. LEXIS 17 (Miss. 1920).

Cross References —

Service of a writ of attachment generally, see §11-33-23.

Duty of officer levying upon real estate by virtue of any process other than an execution upon a judgment to file notice with the chancery court clerk, see §11-47-5.

Limitation period applicable to executions on domestic judgments, see §15-1-43.

Domestic judgment not being a lien on a defendant’s property for longer than 7 years unless an action be brought thereon before the expiration of such time, see §15-1-47.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

The sheriff is not required to search the title to land to determine ownership or the identity of mortgagees before levying execution. The act of levying execution would entail going on the land and posting notice of the service of the writ. See Section 13-3-123. Richardson, September 13, 1995, A.G. Op. #95-0229.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 73, 307-311.

30 Am. Jur. 2d, Executions §§ 195 et seq.

9A Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 31 et seq. (writs of execution).

CJS.

7 C.J.S., Attachment §§ 100-103, 311-321.

33 C.J.S., Executions §§ 40, 143, 144.

JUDICIAL DECISIONS

1. In general.

In attachment suit in chancery against land of nonresident, no lien is created until mandatory provisions of Code 1942, §§ 756, 2731, and this section [Code 1942, § 1904] are complied with by issuance and levy of writ of attachment and filing of notice of levy, and mere filing of lis pendens notice is insufficient to create lien. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

In attachment suit in chancery against nonresident, alleged to own land in this state, for damages arising out of breach of warranty in sale of automobile, person claiming lis pendens notice filed in suit creates cloud upon his superior interest in the land may become party to suit on motion for purpose of protecting his interest and by his appearance in suit intervenor does not waive necessity of issuance and levy of writ of attachment. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

A sheriff holding an attachment writ against a corporation may refuse the demand of the plaintiff to levy it on the property of the individuals who compose it and manage its affairs, and by such refusal he does not incur liability to the plaintiff. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

His liability cannot be affected by showing that if the levy had been made the property might thereafter have been subjected in a chancery proceeding to the demand of the plaintiff. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

A service or levy of an attachment by an interested party is void. Dyson v. Baker, 54 Miss. 24, 1876 Miss. LEXIS 5 (Miss. 1876).

The directions of the statute as to the manner of levying an attachment must be complied with. Tucker v. Byars, 46 Miss. 549, 1872 Miss. LEXIS 24 (Miss. 1872).

It is not necessary to the validity of the return that it should state that the property belonged to the defendant; that fact will be intended. Saunders v. Columbus Life & General Ins. Co., 43 Miss. 583, 1870 Miss. LEXIS 69 (Miss. 1870).

If the return show a substantial compliance with the statute, the levy will be valid. The return need not follow the exact language used in the statute. Saunders v. Columbus Life & General Ins. Co., 43 Miss. 583, 1870 Miss. LEXIS 69 (Miss. 1870).

Cross References —

Delivery of property seized in execution of process by one appointed by a justice of the peace to execute it, see §11-9-111.

Service of a writ of attachment generally, see §11-33-23.

Selection of exempt personal property where an officer is about to levy an execution or attachment on personal property, see §85-3-3.

Indemnity bond to be furnished officer levying an execution or attachment on personal property claimed to be exempt, see §85-3-5.

Liability of sheriff seizing personal property exempt from execution, see §85-3-5.

Replevy by defendant whose exempt personal property is seized pursuant to an execution or attachment, see §85-3-9.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 74, 293 et seq.

30 Am. Jur. 2d, Executions § 200.

CJS.

7 C.J.S., Attachment §§ 65-72, 76, 396-400.

33 C.J.S., Executions §§ 28, 146-153, 156-159.

JUDICIAL DECISIONS

1. In general.

Where the sheriff left the automobiles upon which he levied execution in the possession of the judgment debtor but took the serial numbers of the vehicles and advised the debtor not to dispose of them in any manner, he took constructive possession of them and the levy was valid. Murdock Acceptance Corp. v. Woodham, 208 So. 2d 56, 1968 Miss. LEXIS 1395 (Miss. 1968).

The seizure may be constructive. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

A valid levy may be made by taking down serial or model numbers of appliances and leaving them in the debtor’s store under an agreement that they were not to be sold. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

An instance of an unsuccessful effort to levy on a warrant in chancery clerk’s custody. Mulford v. Roberts, 112 Miss. 573, 73 So. 609, 1916 Miss. LEXIS 148 (Miss. 1916).

A sheriff holding an attachment writ against a corporation may refuse the demand of the plaintiff to levy it on the property of the individuals who compose it and manage its affairs, and by such refusal he does not incur liability to the plaintiff. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

His liability cannot be affected by showing that if the levy had been made the property might thereafter have been subjected to the demand of the plaintiff. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

It is essential to the validity of the levy of an attachment on personalty that the officer take the possession of the same. Gates & Pleasants v. Flint, 39 Miss. 365, 1860 Miss. LEXIS 59 (Miss. 1860).

Cross References —

Sale or assignment of any chose in action after suit thereon has been filed, see §11-7-7.

Service of a writ of attachment generally, see §11-33-23.

Liability to levy of money, banknotes, judgments and the like, see §13-3-133.

Purchaser’s title to chose in action of defendant sold under execution or attachment, see §13-3-135.

Duties of clerks and sheriffs with respect to executions issued on judgments rendered in suits on promissory notes and bills of exchange, see §75-13-7.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d (Rev), Attachment and Garnishment §§ 83 et seq., 304.

30 Am. Jur. 2d, Executions §§ 142 et seq.

General Executions, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Form 51.

CJS.

7 C.J.S., Attachment § 73.

33 C.J.S., Executions §§ 35-37, 154, 534.

JUDICIAL DECISIONS

1. In general.

Nothing in Miss. Code Ann. §13-3-127, which was limited to attachments, supported the argument that a chose in action was not subject to a writ of execution. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

A suggestion in the writ that a certain person is indebted to the defendant makes it the duty of the officer to summon that person as garnishee, even though the writ contains no direct command that he do so. Semmes v. Patterson, 65 Miss. 6, 3 So. 35, 1887 Miss. LEXIS 3 (Miss. 1887).

The officer is not required to summon as garnishees all persons shown by the books of account to be indebted to defendant, but only such as may be alleged so to be. Boone v. McIntosh, 62 Miss. 744, 1885 Miss. LEXIS 135 (Miss. 1885).

Cross References —

Service of a writ of attachment generally, see §11-33-23.

Seizure and sale of corporate property and franchise when a judgment is returned against a corporation, see §79-1-13.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Power of equity court to reach or to sequester, for seizure and sale, beneficial equitable interests in corporate stock shares. 42 A.L.R.2d 920.

Am. Jur.

6 Am. Jur. 2d (Rev), Attachment and Garnishment §§ 89, 305.

30 Am. Jur. 2d (Rev), Executions §§ 150, 201.

CJS.

7 C.J.S., Attachment §§ 74, 231, 232.

33 C.J.S., Executions §§ 39-159.

JUDICIAL DECISIONS

1. In general.

A certificate of shares of corporate stock issued to the judgment debtor, found in the custody of his agent or trustee, was held to be a proper subject of levy and sale under a similar provision contained in Code 1871, § 849. Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 42 S. Ct. 27, 66 L. Ed. 104, 1921 U.S. LEXIS 1309 (U.S. 1921).

Legislature may fix situs of stock of domestic corporation at its domicile for purposes of execution and attachment. Grenada Bank v. Glass, 150 Miss. 164, 116 So. 740, 1928 Miss. LEXIS 142 (Miss. 1928).

Cross References —

Service of a writ of attachment generally, see §11-33-23.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Judgment lien or levy of execution on one joint tenant’s share or interest as severing joint tenancy. 51 A.L.R.4th 906.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 152, 153.

59A Am. Jur. 2d, Partnership §§ 500 et seq.

CJS.

7 C.J.S., Attachment §§ 323-325.

33 C.J.S., Executions § 45.

JUDICIAL DECISIONS

1. In general.

A voluntary partition of land between co-tenants by agreement will not affect the right of a judgment creditor having a lien upon the interest of one tenant. Simmons v. Gordon, 98 Miss. 316, 53 So. 623, 1910 Miss. LEXIS 64 (Miss. 1910).

Amendment Notes —

The 2008 amendment added (2).

Cross References —

Levy of writs of execution and attachment on choses in action, see §13-3-127.

Service of a writ of attachment generally, see §99-23-7.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Under Sections 11-9-127 and 13-3-133, to enforce the final judgment of the court it is legal to specify money on defendant’s person and/or money in cash drawer of a business on the same execution. However, the sheriff may not conduct a search of a person or premises without a warrant from a court, but may seize any property that is in plain view. Aldridge, May 2, 1995, A.G. Op. #95-0156.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d (Rev), Attachment and Garnishment §§ 76, 99-106, 120-130, 268.

30 Am. Jur. 2d (Rev), Executions §§ 139, 145, 146, 203.

CJS.

7 C.J.S., Attachment § 64.

33 C.J.S., Executions §§ 31, 36, 38, 534.

JUDICIAL DECISIONS

1. In general.

A certificate of shares of corporate stock issued to the judgment debtor, found in the custody of his agent or trustee, was held to be a proper subject of levy and sale under a similar provision contained in Code 1871, § 849. Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 42 S. Ct. 27, 66 L. Ed. 104, 1921 U.S. LEXIS 1309 (U.S. 1921).

Although Miss. Code Ann. §93-11-71(3) provides an expedited execution process for judgments for child support arrearages, if the judgment is not executed, it creates no legal right or interest superior to competing claims or interests in funds forfeited by the government under 21 USCS § 853(n); thus, defendant’s former wife and a department of human services had no claim to the forfeited bank accounts of defendant because they had no legal interest to the funds superior to defendant at the time of the commission of his drug crimes which gave rise to the government’s forfeiture; even if the judgment lien had been enrolled, it did not attach to intangible property, such as the bank accounts, as defined under Miss. Code Ann. §13-3-133. United States v. Butera, 2006 U.S. Dist. LEXIS 65729 (S.D. Miss. Sept. 13, 2006).

Where it appeared that judgment on which appealing execution creditor relied had been levied on and transferred to appellee, appeal held dismissed. McInnis v. Simmons, 162 Miss. 606, 139 So. 872, 1932 Miss. LEXIS 162 (Miss. 1932).

One whose sole property in this state is money on deposit subjects himself to attachment by going out of the state and taking the money with him, although he expects to return. Philadelphia Inv. Co. v. Bowling, 72 Miss. 565, 17 So. 231, 1895 Miss. LEXIS 6 (Miss. 1895).

A constable having money collected by him under execution, which is payable to the plaintiff therein, is subject to garnishment. Burleson v. Milan, 56 Miss. 399, 1879 Miss. LEXIS 136 (Miss. 1879).

A judgment debtor of a debtor may be garnisheed. Gray v. Henby, 9 Miss. 598, 1844 Miss. LEXIS 24 (Miss. 1844); O'Brien v. Liddell, 18 Miss. 371, 1848 Miss. LEXIS 95 (Miss. 1848).

Cross References —

Levy of writs of execution and attachment on choses in action, see §13-3-127.

Property purchased at an execution sale being discharged of all liens of judgments, see §13-3-185.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Power of equity court to reach or to sequester, for seizure and sale, beneficial equitable interests in corporate stock shares. 42 A.L.R.2d 920.

JUDICIAL DECISIONS

1. In general.

When bank purchased a corporation’s choses in action at a sheriff’s sale, it also purchased lawsuits; as such, it became the owner of the lawsuits, and the trial court erred in not substituting the bank as a party plaintiff and in not dismissing the litigation. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

As Miss. Code Ann. §13-3-135 addresses the rights of a purchaser of a chose of action sold under an execution, the Supreme Court of Mississippi holds that implicit in a reading of §13-3-135 is the that a chose of action may be sold under execution. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

Cross References —

Growing crop not being subject to a judgment lien, see §11-7-199.

Right of purchaser or mortgagor to cultivate and gather crops in cases of forfeiture under contract of purchaser or foreclosure of deeds in trust or mortgages, see §11-25-25.

Chancery court decrees for the sale of a crop growing at the time of death of a deceased, see §91-7-169.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 79, 80.

30 Am. Jur. 2d, Executions § 140.

CJS.

7 C.J.S., Attachment §§ 72, 76.

33 C.J.S., Executions § 29.

JUDICIAL DECISIONS

1. In general.

Statute prohibiting sale of growing crops under execution must be strictly construed. Harris v. Harris, 150 Miss. 729, 116 So. 731, 1928 Miss. LEXIS 138 (Miss. 1928).

Where crop had matured and was ready for harvest, lien of levy attached. Harris v. Harris, 150 Miss. 729, 116 So. 731, 1928 Miss. LEXIS 138 (Miss. 1928).

Trust deed, executed after levy by sheriff under execution upon matured ungathered crop of cotton, cannot prevail as against judgment creditor. Harris v. Harris, 150 Miss. 729, 116 So. 731, 1928 Miss. LEXIS 138 (Miss. 1928).

Cross References —

Lien created by and priority of judgment of circuit court entered on the judgment roll, see §11-7-191.

Forfeiture of priority of judgment of circuit court entered on judgment roll, see §11-7-193.

Criminal offenses of removal out of state of personal property subject to liens, see §§97-17-73 through97-17-77.

Obstructing justice by removing property levied on by virtue of any legal process, see §97-9-69.

Criminal offense of disposing property on which there exists a lien by law without notifying purchaser of said lien, see §97-19-51.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 177 et seq.

CJS.

33 C.J.S., Executions §§ 203-208, 210, 219 et seq.

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

The expenses incurred under Section 13-3-141, if not fixed by law, shall be settled by the court on return of the execution and taxed as costs. The sheriff can retain these costs out of the proceeds from the sale of the property. Richardson, September 13, 1995, A.G. Op. #95-0229.

If necessary to provide for the “sustenance” of the livestock levied under Section 13-3-141, the sheriff may hire someone to move and/or keep and feed the cattle and submit the expense to the court to be taxed as costs. Richardson, September 13, 1995, A.G. Op. #95-0229.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d(Rev), Executions §§ 177 et seq.

CJS.

33 C.J.S., Executions §§ 183, 191.

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions § 51.

CJS.

33 C.J.S., Executions §§ 80-84.

JUDICIAL DECISIONS

1. In general.

The section [Code 1942, § 1914] does not apply in favor of a foreign administrator who has not complied with the statutory requirements authorizing such administrator to act in this state. Jackson v. Scanland, 65 Miss. 481, 4 So. 552, 1888 Miss. LEXIS 26 (Miss. 1888).

Cross References —

For the rule governing substitution upon the death of a party, see Miss. R. Civ. P. 25.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

CJS.

33 C.J.S., Executions §§ 80-84.

Cross References —

Sale or assignment of any chose in action after suit thereon has been filed, see §11-7-7.

Assignment of negotiable instruments, see §75-13-1.

For the rule governing substitution upon the death of a party, see Miss. R. Civ. P. 25.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions §§ 51, 68.

CJS.

33 C.J.S., Executions §§ 80-83, 132, 133.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1916] recognizes the validity of an assignment of a judgment, and a municipality has the power to make an assignment of a judgment in its favor, it being shown that it received the full amount of the judgment rendered. Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93, 1930 Miss. LEXIS 292 (Miss. 1930).

City may assign judgment recovered on bail bond to sheriff who negligently fails to execute it. Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93, 1930 Miss. LEXIS 292 (Miss. 1930).

Cross References —

Judgment surviving where one or more of several defendants against whom judgment has been entered die, see §11-7-29.

For the rule governing substitution upon the death of a party, see Miss. R. Civ. P. 25.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 51, 52, 68.

Proceedings where judgment debtor is deceased, 9 Am. Jur. Pl & pr Forms (Rev), Executions, Forms 401-411.

CJS.

33 C.J.S., Executions § 80-84.

Cross References —

Judgment surviving where one or more of several defendants against whom judgment has been entered die, see §11-7-29.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

For the rule governing substitution upon the death of a party, see Miss. R. Civ. P. 25.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions § 52.

Proceedings where judgment debtor is deceased, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 401-411.

CJS.

33 C.J.S., Executions §§ 80-84.

JUDICIAL DECISIONS

1. In general.

Execution under the statute must be obtained from the court or from the judge in vacation, on cause shown, on motion or petition, and formal notice or process is not required. The “cause shown” relates only to the judge in vacation. Alsop v. Cowan, 66 Miss. 451, 6 So. 208, 1889 Miss. LEXIS 126 (Miss. 1889).

The petition is insufficient if it fail to show that the judgment was a lien at the time of defendant’s death and a demurrer thereto should be sustained. Alsop v. Cowan, 66 Miss. 451, 6 So. 208, 1889 Miss. LEXIS 126 (Miss. 1889).

Cross References —

Necessity of revival of judgment by scire facias where no execution issued within year and day after its rendition, see §11-7-201.

Issuance of scire facias in criminal case where defendant, prosecutor, or witness fails to comply with terms of bail bond or recognizance, see §99-5-25.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

Applicability of the Mississippi Rules of Civil Procedure, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

Petition or application for scire facias to revive judgment, 15 Am. Jur. Pl & Pr Forms (Rev), Judgments, Forms 153.

Scire facias to revive judgment-writ and citation, 15 Am. Jur. Pl & Pr Forms (Rev), Judgments, Form 168.

Writ of scire facias to revive pending action, 18 Am. Jur. Pl & Pr Forms, Scire Facias, Forms 18:201-18:211.

Writ of scire facias to revive judgment, 18 Am. Jur. Pl & Pr Forms, Scire Facias, Forms, 18:221-18:244.

Cross References —

Lien created by and priority of judgment of circuit court entered on the judgment roll, see §11-7-191.

Forfeiture of priority of judgment of circuit court entered on judgment roll, see §11-7-193.

Issuance of a writ of garnishment on suggestion of plaintiff in judgment or decree, see §11-35-1.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 382 et seq.

30 Am. Jur. 2d (Rev), Executions §§ 69, 84 et seq.

CJS.

33 C.J.S., Executions §§ 61, 62 et seq.

JUDICIAL DECISIONS

1. In general.

2. Circuit court lacked enforcement authority.

1. In general.

Clerk of trial court held without authority to issue writ of garnishment for collection of costs incurred on appeal to supreme court. State v. Keeton, 176 Miss. 590, 169 So. 760, 1936 Miss. LEXIS 143 (Miss. 1936).

The plaintiff in a judgment obtained in a justice’s court may, under this section [Code 1942, § 1920], have it enrolled in the manner specified in any other county where property of the debtor may be situated, and have execution issued by the circuit clerk of such county to an officer of that county, returnable to the court of the justice who rendered the judgment. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

2. Circuit court lacked enforcement authority.

Dismissal of the judgment creditor’s garnishment proceeding was proper where the circuit court lacked any authority to entertain the enforcement action of a judgment rendered in federal district court; it was plain that Miss. Code Ann. §13-3-155, while imposing certain duties upon the circuit clerk once a judgment was enrolled did not grant to that circuit court any authority in the handling of an execution or garnishment issued by the clerk under the authority of §13-3-155. Buckley v. Pers. Support Sys., 852 So. 2d 648, 2003 Miss. App. LEXIS 65 (Miss. Ct. App.), cert. denied, 859 So. 2d 392, 2003 Miss. LEXIS 380 (Miss. 2003).

Editor’s Notes —

Section 27-3-4 provides that the terms “‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Section 27-3-4 provides that the terms “‘Chairman of the Mississippi State Tax Commission,’ ‘Chairman of the State Tax Commission,’ “Chairman of the Tax Commission’ and ‘chairman’ appearing in the laws of this state in connection with the performance of the duties and functions by the Chairman of the Mississippi State Tax Commission, the Chairman of the State Tax Commission or the Chairman of the Tax Commission shall mean the Commissioner of Revenue of the Department of Revenue.”

Cross References —

Interposition of a claim by a person not a party to an execution who alleges to be the owner or to have a lien on the personal property levied upon, see §11-23-7.

Selection by a defendant of exempt personal property where an officer is about to levy an execution or attachment on personal property, see §85-3-3.

Indemnity bond to be furnished officer about to levy execution or attachment on personal property claimed to be exempt, see §85-3-5.

Exemption from execution of property when the purchase-money thereof forms the debt on which the judgment is founded, see §85-3-47.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

While Section 13-3-157 only provides for a bond after levy, the Supreme Court of Mississippi has held that a bond taken before levy is not illegal and void; such a bond given before a levy is valid. See Forniquet v. Tegarden, 24 Miss 96 (1850). Hooks, April 5, 1996, A.G. Op. #96-0163.

RESEARCH REFERENCES

ALR.

Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person. 18 A.L.R.2d 891.

Amendment of attachment or garnishment bond. 47 A.L.R.2d 971.

Posting of redelivery bond as waiver of damages for wrongful attachment. 57 A.L.R.2d 1376.

Injury to credit standing, reputation, solvency, or profit potential as elements of damage resulting from wrongful execution against business property. 55 A.L.R.3d 911.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 492, 495 et seq.

Bond to indemnify sheriff before levy on personal property, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 111.

Bond to indemnify officer before levy of execution on personal property, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Form 18:645.

CJS.

7 C.J.S., Attachment § 419.

JUDICIAL DECISIONS

1. In general.

2. Right of action on bond.

3. Time for giving bond.

4. —Reasonable notice.

5. Liability.

6. Defenses.

7. Damages recoverable.

1. In general.

Where sheriff had no right to demand indemnity bond, because the property in question was part of the realty, bond taken by him was not valid. Chenault v. W. T. Adams Mach. Co., 98 Miss. 326, 53 So. 629, 1910 Miss. LEXIS 65 (Miss. 1910).

Where an officer takes a bond conditioned under this section [Code 1942, § 1921] by mistake for one conditioned under Code 1906, § 2143, it will in a suit thereon be treated as properly conditioned by reason of Code 1942, § 1022. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

The section [Code 1942, § 1921] does not apply to an attachment for rent. Gibson v. Lock & Smith, 58 Miss. 298, 1880 Miss. LEXIS 125 (Miss. 1880).

2. Right of action on bond.

The statute does not confer a right of action on the bond upon one who could not at common law have maintained an action against the officer. Moore v. Allen, 25 Miss. 363, 1853 Miss. LEXIS 1 (Miss. 1853); Marshall v. Stewart, 67 Miss. 494, 7 So. 284, 1889 Miss. LEXIS 62 (Miss. 1889).

3. Time for giving bond.

The statute only provides for an indemnifying bond after levy, though a bond taken before a levy is a good common-law obligation. Forniquet v. Tegarden, 24 Miss. 96, 1852 Miss. LEXIS 16 (Miss. 1852).

4. —Reasonable notice.

Where the sheriff wrote to a judgment creditor in Illinois two weeks before the first day of the court, demanding a bond to indemnify him against liability for levying an execution and advising such creditor that the execution would be held unexecuted until such bond was furnished, and the creditor failed to answer, two weeks was not an unreasonable time for the sheriff to wait for the creditor to furnish the bond so as to charge the sheriff with liability for failure to return the execution on the return day thereof. W. T. Rawleigh Co. v. Foxworth, 194 Miss. 205, 11 So. 2d 919, 1943 Miss. LEXIS 56 (Miss. 1943).

5. Liability.

Only liability of attaching creditors and sureties on attachment bond was for wrongful suing out of attachment and alone to defendant therein. Jamison v. Wilson, 152 Miss. 382, 119 So. 800, 1928 Miss. LEXIS 267 (Miss. 1928).

6. Defenses.

Whatever would have been a defense to the sheriff, if bond had not been taken, will be a defense to a suit on the bond. Moore v. Allen, 25 Miss. 363, 1853 Miss. LEXIS 1 (Miss. 1853).

7. Damages recoverable.

Attorney’s fees and other expenses incurred sustaining a claimant’s issue for property seized under attachment are not recoverable in a suit on an indemnifying bond required by this section [Code 1942, § 1921]. Moore v. Lowrey, 74 Miss. 413, 21 So. 237, 1896 Miss. LEXIS 161 (Miss. 1896).

The sureties on an indemnifying bond are not liable for damages resulting from the negligent failure of the officer to safely keep the property. Smokey v. Peters & Calhoun Co., 66 Miss. 471, 5 So. 632, 1889 Miss. LEXIS 130 (Miss. 1889).

The obligors in an indemnifying bond are bound to pay such damages as result from the seizure, and not attorney’s fees or other expenses incurred in defending the title to the property. Brinker v. Leinkauff, 64 Miss. 236, 1 So. 170, 1886 Miss. LEXIS 52 (Miss. 1886).

The obligators in the bond are only liable for such damages as the sheriff would be liable for had bond not been taken. Moore v. Allen, 25 Miss. 363, 1853 Miss. LEXIS 1 (Miss. 1853).

Cross References —

Actions on indemnity bond furnished officer about to levy an execution or attachment on personal property claimed to be exempt, see §85-3-7.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person. 18 A.L.R.2d 891.

Amendment of attachment or garnishment bond. 47 A.L.R.2d 971.

Perjury or false swearing as contempt. 89 A.L.R.2d 1258.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 517-520.

30 Am. Jur. 2d, Executions § 645.

Complaint, petition, or declaration by sheriff for indemnity against sureties on bond indemnifying officer against liability for execution, levy, and sale, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 114.

Complaint, petition, or declaration by sheriff for indemnity against execution creditor causing sheriff to levy on goods of person other than execution debtor, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 113.

Complaint by sheriff against execution creditor causing sheriff to levy upon goods of third person, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Form 18:643.

CJS.

33 C.J.S., Executions §§ 640, 641.

Editor’s Notes —

Laws of 1981, ch. 471, § 60, provides as follows:

“SECTION 60. Section 8 of this act shall take effect and be in force from and after the date it is finally effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended. Sections 4, 48 and 59 of this act shall take effect and be in force from and after passage. Sections 17 and 22 of this act shall take effect and be in force from and after March 31, 1982. Sections 15, 16 and 58 of this act shall take effect and be in force from and after July 1, 1983. Sections 20, 23, 24, 25, 26, 27, 29, 30, 31, 34, 35, 36, 37, 38, 39, 41, 42, 46, 47, 49, 50, 51, 52, 54, 55, 56 and 57 of this act shall take effect from and after January 1, 1984, or with respect to a given county, from and after such earlier date as such county elects to employ a clerk for the justice court of such county in accordance with the provisions of subsection (3) of Section 7 of this act. Sections 9, 10, 18, 19 and 43 of this act shall take effect and be in force from and after January 1, 1984.” (Amended by Laws, 1982, ch. 423, § 28, eff from and after March 31, 1982).

This section was brought forward without change by Laws of 2011, ch. 418, effective July 1, 2011.

Amendment Notes —

The 2011 amendment brought forward the section without change.

Cross References —

Sales of real estate ordered by decree of the chancery court, see §11-5-93.

Sales of house, building, structure, or fixture and land, pursuant to a special writ of execution, see §85-7-155.

Sales after condition broken where deed of trust or mortgage, with a power of sale, is silent as to the place and terms of sale, see §89-1-57.

Provision for suspension of inconsistent laws regarding foreclosure of mortgaged property in certain emergency situations, see §89-1-319.

Sales of perishable property in estate proceedings, see §91-7-175.

Power of the chancery court to authorize executor or administrator to sell personal property at private sale, see §91-7-177.

Authority of an executor or administrator to sell, at public or private sale, perishable goods or chattels or livestock of the decedent, see §91-7-179.

Authority of an executor or administrator to sell the interest of the decedent in watercraft or other property which cannot be produced, see §91-7-181.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

With respect to sale of property deeded to state as result of civil prosecution pursuant to Racketeer Influenced and Corrupt Organizations Act, public auction at County courthouse should be conducted as set out in Sections 13-3-161, et seq., except that Secretary of State rather than Sheriff should conduct sale. Nelson, March 23, 1994, A.G. Op. #94-0059.

RESEARCH REFERENCES

ALR.

Rights and remedies of purchaser at judicial or execution sale where there was misrepresentation or mistake as to acreage or boundaries. 69 A.L.R.2d 254.

Am. Jur.

30 Am. Jur. 2d (Rev), Executions § 403.

CJS.

33 C.J.S., Executions § 357.

JUDICIAL DECISIONS

1. Sales under process issued other than by justice of the peace.

2. — Personal property.

3. —Application to federal marshals.

4. Sales under process issued by justice of the peace.

1. Sales under process issued other than by justice of the peace.

Statutes fixing the place for the sale of lands under execution are mandatory, and a sale made contrary to such a statute is void. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

2. — Personal property.

When bank purchased a corporation’s choses in action at a sheriff’s sale, it also purchased lawsuits, and as such, it became the owner of the lawsuit; no one disputed that the sheriff’s sale was properly conducted, and the trial court erred in not substituting the bank as a party plaintiff and in not dismissing the litigation. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

An execution sale of gas ranges, refrigerators, and television sets may permissibly be held at the debtor’s place of business. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

A tax sale of personal property at the courthouse is illegal where it was not feasible to have it all present there. State use of Stevens Enterprises, Inc. v. McDonnell, 236 Miss. 841, 111 So. 2d 662, 1959 Miss. LEXIS 381 (Miss. 1959).

3. —Application to federal marshals.

The requirement, under a former enactment of this provision (Code 1871, § 846), that execution sales be made at the county courthouse was not made applicable by the Conformity Act to execution of sales of personal property by a United States marshal and an execution sale may therefore be made at the courthouse of the United States where the judgment was rendered and the execution issued. Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 42 S. Ct. 27, 66 L. Ed. 104, 1921 U.S. LEXIS 1309 (U.S. 1921).

As a general rule United States marshals in making sales of land under execution are required (U. S. Rev. Stat., § 914, 28 USC § 724) to conform to the laws of the state governing the subject of such sales and they must be made at the place provided by the law of the state for sheriff’s sales of land under execution. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

The word “place” in a statute (Act of Congress Feb. 16, 1838), authorizing marshal’s sales of land under execution in Mississippi to be made upon written request of defendant “at the place where the United States court for the district is holden” does not mean any place in the town or city where the court was held, but a particular place in which the court held its sittings. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

4. Sales under process issued by justice of the peace.

Execution sale, although advertised once each week for three weeks pursuant to statute, held void where less than three weeks elapsed between first publication and sale. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Cross References —

Execution of warrant by sheriff or special agent; fees, see §27-65-63.

Preference in sales of property when decedent’s estate consists of both real and personal property and it is necessary to sell a portion thereof, see §91-7-187.

Sales of the real estate of decedent where the personal property will not suffice to pay debts and expenses, see §91-7-191.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Sections 13-3-163 and 13-3-165 provide that the costs of advertising and providing notice of the sale shall be paid by the plaintiff and the expense then taxed as costs. Richardson, September 13, 1995, A.G. Op. #95-0229.

The Legislature amended Sections 13-3-163 and 13-3-165 to provide that any expense or cost incurred by advertising and providing notice for legal sales shall be paid by the plaintiff. The amendments did not relieve the sheriff from liability for ensuring that proper notice is given prior to a legal sale. A sheriff may provide for the advertisement of such sales and then charge the cost of such advertisement to the plaintiff. Hooks, April 5, 1996, A.G. Op. #96-0163.

RESEARCH REFERENCES

ALR.

Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale. 2 A.L.R.2d 6.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 391 et seq., 399.

Notice of execution sale, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Form 121.

8 Am. Jur. Proof of Facts, Newspapers, Proof No. 1 (establishing newspaper as one of general circulation).

CJS.

33 C.J.S., Executions §§ 357, 370-375.

JUDICIAL DECISIONS

1. In general.

In a partition action, the chancellor’s award of attorney’s fees payable by the appealing parties, and assessed against the sale proceeds, was error, as there was no evidence that said fees were reasonable and there was no bad faith shown. Further, as to notice of the sale, Miss. Code Ann. §13-3-163 did not apply where the chancellor gave specific instruction for terms of the sale pursuant to Miss. Code Ann. §§11-5-93 and11-5-95, and while the sale price was low, the chancellor did not abuse his discretion in refusing to set aside the sale. Necaise v. Ladner, 910 So. 2d 699, 2005 Miss. App. LEXIS 194 (Miss. Ct. App. 2005).

A deed of trust which provides that in case of default the trustee shall take possession without notice, and after duly advertising, sell for cash, at public auction at the courthouse door, a sufficiency of the property to make payment, is not silent as to the place and terms of sale and mode of advertising within the meaning of Code 1942, § 891. Gardner v. State, 235 Miss. 119, 108 So. 2d 592, 1959 Miss. LEXIS 410 (Miss. 1959).

Where sale of land under execution was advertised one day a week for three successive weeks, lapse of two weeks between time of last advertisement and time of sale held not to invalidate sale advertisement not being required for three successive weeks next preceding day of sale. Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 1934 Miss. LEXIS 132 (Miss. 1934).

Statute requiring advertisement of execution sales once each week for three weeks should be construed with statute defining meaning of requirements for three weeks’ publication. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Execution sale advertised once each week for three weeks, held void where less than three weeks elapsed between first publication and sale. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

As to sales under deeds of trust, see Davis v. O'Connell, 92 Miss. 348, 47 So. 672, 1908 Miss. LEXIS 258 (Miss. 1908); Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827, 1908 Miss. LEXIS 250 (Miss. 1908); Lynchburg Shoe Co. v. Castleman, 116 Miss. 188, 76 So. 878, 1917 Miss. LEXIS 306 (Miss. 1917).

Editor’s Notes —

This section was brought forward without change by Laws of 2011, ch. 418, effective July 1, 2011.

Amendment Notes —

The 2011 amendment brought forward the section without change.

Cross References —

Execution of warrant by sheriff or special agent; fees, see §27-65-63.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Sections 13-3-163 and 13-3-165 provide that the costs of advertising and providing notice of the sale shall be paid by the plaintiff and the expense then taxed as costs. Richardson, September 13, 1995, A.G. Op. #95-0229.

The Legislature amended Sections 13-3-163 and 13-3-165 to provide that any expense or cost incurred by advertising and providing notice for legal sales shall be paid by the plaintiff. The amendments did not relieve the sheriff from liability for ensuring that proper notice is given prior to a legal sale. A sheriff may provide for the advertisement of such sales and then charge the cost of such advertisement to the plaintiff. Hooks, April 5, 1996, A.G. Op. #96-0163.

RESEARCH REFERENCES

ALR.

Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale. 2 A.L.R.2d 6.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 391 et seq., 399.

Notice of execution sale, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Form 121.

CJS.

33 C.J.S., Executions §§ 357, 370-375.

JUDICIAL DECISIONS

1. Generally.

2. Liability of sheriff.

3. —Defenses.

4. Passage of title.

1. Generally.

When bank purchased a corporation’s choses in action at a sheriff’s sale, it also purchased lawsuits, and as such, it became the owner of the lawsuit; no one disputed that the sheriff’s sale was properly conducted, and the trial court erred in not substituting the bank as a party plaintiff and in not dismissing the litigation. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

A sheriff’s sale was in compliance with the ten day advertisement requirements of Code 1972 §13-3-165, where the first notice was posted on November 14, 1975, and the sale occurred on November 24, 1975; the provisions of Code 1972 §1-3-67 prescribe the applicable formula for computing such ten day period, in that the first day is to be excluded and the last included. Combs v. Adams, 350 So. 2d 41, 1977 Miss. LEXIS 2206 (Miss. 1977).

Posted notices of the time and place of public sale of a repossessed automobile which comply with the provisions of this section [Code 1942, § 1926] are the only form of notice the seller is required to give the buyer, and notice to the buyer of the time and place of sale by means of a letter is not necessary. Ward v. McPhail Oldsmobile, Inc., 203 So. 2d 491, 1967 Miss. LEXIS 1378 (Miss. 1967).

Where the retained title contract provided that the seller could purchase an automobile at public sale, the sale at which the seller purchased the repossessed vehicle was valid. Ward v. McPhail Oldsmobile, Inc., 203 So. 2d 491, 1967 Miss. LEXIS 1378 (Miss. 1967).

The seller of an automobile, under the terms of a retained title contract, has a right to sell the repossessed automobile at public sale, either in the county where the contract was made and where the automobile was returned to the seller by the finance company, or in the county of the residence of the purchaser. Ward v. McPhail Oldsmobile, Inc., 203 So. 2d 491, 1967 Miss. LEXIS 1378 (Miss. 1967).

The requirement that the sale be made to the highest bidder does not preclude a sale where there is only one bidder. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

2. Liability of sheriff.

Fact that sheriff gave only eight days’ notice of sale of merchandise for failure to pay sales tax and not the ten days’ notice as required by statute constituted such misconduct that the sheriff was no longer entitled to protection of the writ, and, if sued in trespass, his defense could not rest upon the process nor could it be used in diminution of damages. Rigby v. Whitten, 196 Miss. 661, 18 So. 2d 152, 1944 Miss. LEXIS 248 (Miss. 1944).

A sheriff, liable to property owner for the sale of his goods and the collection of sales taxes as provided under sales tax statutes because the sale was not advertised for ten days as provided hereunder, was guilty of conversion, the measure of damages for which, in the absence of special circumstances, is the value of the property, market value if such it has, at the time and place of its conversion with interest thereon. Rigby v. Stone, 194 Miss. 775, 13 So. 2d 230 (Miss. 1943).

3. —Defenses.

Owner of merchandise sold by sheriff for failure to pay sales tax at sale which was invalid because the required ten days’ notice had not been given, who acquiesced in the sale, gave no notice to the purchaser, and delivered the property to the purchaser, was not entitled as against the sheriff to demand more than the latter received from the purchaser at the sale, and the sheriff was protected to the extent of the amount remitted to the state tax commission as directed by warrant, but the owner was entitled to the amount retained by the sheriff as costs since the sheriff did not act as the warrant directed. Rigby v. Whitten, 196 Miss. 661, 18 So. 2d 152, 1944 Miss. LEXIS 248 (Miss. 1944).

4. Passage of title.

Where owner of personalty which has been sold under a void warrant of sale, or at an improper time, of which the owner then knows, voluntarily delivers the property to the purchaser or takes active steps to that end without giving any warning or notice whatever at any time or in any manner to purchaser and the latter pays his money without notice, title passes to the purchaser on such delivery and the owner cannot thereafter disturb him. Rigby v. Whitten, 196 Miss. 661, 18 So. 2d 152, 1944 Miss. LEXIS 248 (Miss. 1944).

Editor’s Notes —

This section was brought forward without change by Laws of 2011, ch. 418, effective July 1, 2011.

Amendment Notes —

The 2011 amendment brought forward the section without change.

Cross References —

Attaching, replevying, sequestering, or seizing perishable commodities passing through the ports of entry in the state, see §§11-1-43 through11-1-49.

Execution of warrant by sheriff or special agent; fees, see §27-65-63.

Warehouseman’s options with regard to perishable goods, see §75-7-206.

Sales of perishable property in estate proceedings, see §91-7-175.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

With respect to execution sales of mobile homes for unpaid ad valorem taxes and any excess funds over which the officer conducting the sale is entitled to retain after payment of judgment liens in order of priority, there is both a statutory method (Section 13-3-181) and a remedy by rule (M.R.C.P.) for distribution of funds when there are conflicting claims thereto. Blaker, II, January 30, 1998, A.G. Op. #98-0023.

RESEARCH REFERENCES

ALR.

Construction and effect of provision for execution sale on short notice, or sale in advance of judgment under writ of attachment, where property involved is subject to decay or depreciation. 3 A.L.R.3d 593.

Am. Jur.

30 Am. Jur. 2d (Rev), Executions § 397.

CJS.

33 C.J.S., Executions §§ 357-359, 370-375.

JUDICIAL DECISIONS

1. In general.

Railroad crossties, though liable to be burned, are not “in danger of immediate waste or decay.” Goodman v. Moss, 64 Miss. 303, 1 So. 241, 1886 Miss. LEXIS 61 (Miss. 1886).

Editor’s Notes —

Section 27-3-4 provides that the terms “‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ ‘Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Section 27-3-4 provides that the terms “‘Chairman of the Mississippi State Tax Commission,’ ‘Chairman of the State Tax Commission,’ “Chairman of the Tax Commission’ and ‘chairman’ appearing in the laws of this state in connection with the performance of the duties and functions by the Chairman of the Mississippi State Tax Commission, the Chairman of the State Tax Commission or the Chairman of the Tax Commission shall mean the Commissioner of Revenue of the Department of Revenue.”

Amendment Notes —

The 2005 amendment added “Except as otherwise provided in this section” at the beginning of (1); and added (2).

The 2011 amendment brought forward the section without change.

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 399, 404 et seq.

CJS.

33 C.J.S., Executions §§ 358, 359, 376, 377.

JUDICIAL DECISIONS

1. In general.

When bank purchased a corporation’s choses in action at a sheriff’s sale, it also purchased lawsuits, and as such, it became the owner of the lawsuit; no one disputed that the sheriff’s sale was properly conducted, and the trial court erred in not substituting the bank as a party plaintiff and in not dismissing the litigation. Citizens Nat'l Bank v. Dixieland Forest Prods., LLC, 935 So. 2d 1004, 2006 Miss. LEXIS 409 (Miss. 2006).

The commissioner appointed by the trial court to conduct a partition sale of real estate violated neither the court order nor §13-3-169 when he accepted a cashier’s check in lieu of cash for the bid, since the commissioner cashed the check and invested the funds pending confirmation of the sale by the court and no prejudice resulted. McCormick v. McCormick, 449 So. 2d 1209, 1984 Miss. LEXIS 1711 (Miss. 1984).

The requirement that the sale be made to the highest bidder does not preclude a sale where there is only one bidder. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

Resale under deed of trust at 3 p. m. held invalid notwithstanding sale was advertised for about noon, and resale if successful bidder defaulted was announced before bidders dispersed. Gray v. Sullivan, 162 Miss. 610, 139 So. 855, 1932 Miss. LEXIS 156 (Miss. 1932).

Announcement of resale, if successful bidder defaulted, would not authorize resale even if unconditional notice would authorize it. Gray v. Sullivan, 162 Miss. 610, 139 So. 855, 1932 Miss. LEXIS 156 (Miss. 1932).

Amendment Notes —

The 2011 amendment brought forward the section without change.

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Inadequacy of price as basis for setting aside execution or sheriff’s sale-modern cases. 5 A.L.R.4th 794.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 408, 409.

CJS.

33 C.J.S., Executions §§ 361, 362.

Amendment Notes —

The 2011 amendment brought forward the section without change.

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Where a property does not command a reasonable price, or where the bids are of a grossly low character, the sheriff should adjourn the sale and readvertise it for another day, as provided by Section 13-3-173. Richardson, September 13, 1995, A.G. Op. #95-0229.

Section 13-3-173 indicates that it is the duty of the sheriff to re-advertise for a subsequent sale. However, the cost of re-advertising would still lie with the plaintiff. Hooks, April 5, 1996, A.G. Op. #96-0163.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d (Rev), Executions § 401.

Notice of adjournment of execution sale, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Form 122.

CJS.

33 C.J.S., Executions § 360.

JUDICIAL DECISIONS

1. In general.

Where bids are grossly low, and generally by only one bidder, the sale should be adjourned and readvertised. Industries Sales Corp. v. Reliance Mfg. Co., 243 Miss. 463, 138 So. 2d 484, 1962 Miss. LEXIS 363 (Miss. 1962).

Cross References —

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions § 386.

CJS.

33 C.J.S., Executions §§ 349, 350.

JUDICIAL DECISIONS

1. In general.

A sale of land under an alias execution instead of a venditioni exponas to an innocent purchaser does not render the sale invalid. Baldwin v. Dreyfus, 92 Miss. 94, 45 So. 428, 1907 Miss. LEXIS 15 (Miss. 1907).

Cross References —

Duty to pay of legal representative of deceased public officer owing public money, see §25-1-67.

Payment by personal representative of the debts due by decedent’s estate generally, see §85-7-261.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 178 et seq., 386.

CJS.

33 C.J.S., Executions §§ 348-350.

Cross References —

Suits on bonds of public officers generally, see §25-1-17.

Duty to pay of legal representative of public officer owing public money, see §25-1-67.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

Cross References —

Lien created by and priority of judgment of circuit court entered on the judgment roll, see §11-7-191.

Interposition of claim by a person not a party to execution who alleges to be owner or to have lien on personal property levied upon, see §11-23-7.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

The levying officer is required under Section 13-3-181 to examine the judgment roll in the county to determine if there are prior judgment liens against the defendant or defendants in execution. If there are prior judgment liens, then the proceeds of the execution sale shall be first applied to the prior liens until they are satisfied. Richardson, September 13, 1995, A.G. Op. #95-0229.

Under Section 13-3-181, if there is a dispute as to the priority of judgment liens, then the officer shall make a statement of this fact and return the execution and the money raised thereon into the proper court, which shall decide the issue. Richardson, September 13, 1995, A.G. Op. #95-0229.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 514, 517.

Complaint, petition, or declaration against sheriff and his surety for failure to pay judgment creditor moneys collected on execution sale, 22 Am. Jur. Pl & Pr Forms (Rev), Sheriffs, Police, and Constables, Form 81.

Complaint on sheriff’s bond for failure to pay over money received on execution, 18 Am. Jur. Pl & Pr Forms, Sheriffs, Police, and Constables, Forms 18:597-18:599.

CJS.

33 C.J.S., Executions §§ 426-429.

JUDICIAL DECISIONS

1. In general.

2. Application of proceeds.

1. In general.

The statute has no application to voluntary payments made by the defendant to the sheriff. Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881); Mississippi C. R. Co. v. Harkness, 32 Miss. 203, 1856 Miss. LEXIS 177 (Miss. 1856).

2. Application of proceeds.

Where judgments are recovered by different holders of several promissory notes given for land and secured by express lien, each judgment is in equity entitled to share in the proceeds of the land without reference to the time of their enrollment, the debtor being insolvent. Aaron & Lindenmayer v. Warner, 62 Miss. 370, 1884 Miss. LEXIS 86 (Miss. 1884).

When two judgment against different defendants are liens upon the same property and it is sold under the judgment with the junior lien, the senior judgment lien is unimpaired by the sale, and the purchaser takes subject to the maxim, “caveat emptor.” Hall v. Meridian Sav. Institution, 56 Miss. 674, 1879 Miss. LEXIS 189 (Miss. 1879).

The lien created by the levy of an execution can only be defeated by a lien existing anterior to the levy, hence the enrollment of a judgment after the levy of an execution does not create a superior lien to that created by the levy. S. Botters & Co. v. Edrington, 30 Miss. 580, 1856 Miss. LEXIS 2 (Miss. 1856).

The money should be appropriated to the oldest lien, whether the judgment having the prior lien be rendered in a state or a United States court. Bonaffee v. Fisk, 21 Miss. 682, 1850 Miss. LEXIS 83 (Miss. 1850).

Where, on motion of the sheriff in the court below to appropriate money made on several executions, that court awards the sum to a particular one, from which only one of the excluded parties appeals, the supreme court, in reversing the judgment, will order the money to be paid to that creditor entitled to it, without regard to his not having made objection to the decision below. Heizer v. Fisher, 21 Miss. 672, 1850 Miss. LEXIS 81 (Miss. 1850).

Cross References —

Bond required to stay proceedings at law, see §11-13-3.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 273, 274.

Cross References —

Sales of real estate ordered by decrees of the chancery court generally, see §11-5-93.

Purchaser’s title to certain interests of defendant sold under execution or attachment, see §13-3-135.

Sales of lands under mortgages and deeds of trust generally, see §89-1-55.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

Am. Jur.

30 Am. Jur. 2d, Executions §§ 489 et seq.

CJS.

33 C.J.S., Executions §§ 464 et seq.

JUDICIAL DECISIONS

1. In general.

The statute only applies where the judgments are against the same person. Hall v. Meridian Sav. Institution, 56 Miss. 674, 1879 Miss. LEXIS 189 (Miss. 1879).

Cross References —

Form of conveyance of land sold by a sheriff under execution, see §89-1-65.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

OPINIONS OF THE ATTORNEY GENERAL

Consistent with Section 13-3-187, State should execute conveyance of property deeded to state as result of civil prosecution pursuant to Racketeer Influenced and Corrupt Organizations Act by patent, as authorized by Section 29-1-81, upon payment of purchase money. Nelson, March 23, 1994, A.G. Op. #94-0059.

RESEARCH REFERENCES

ALR.

Lien of purchaser at judicial or execution sale, where sale is void or is set aside because proceedings are imperfect or irregular. 142 A.L.R. 325.

Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor. 33 A.L.R.4th 1206.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 437 et seq.

Certificate of sale, 9 Am. Jur. Pl & Pr Forms (Rev), Executions, Forms 131, 132.

CJS.

33 C.J.S., Executions §§ 449, 459 et seq.

JUDICIAL DECISIONS

1. In general.

The return of an officer on an execution showing the sale of land to a designated person does not transfer the title, it only gives the purchaser the right to demand a deed conveying title. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 1904 Miss. LEXIS 106 (Miss. 1904), overruled, Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), writ of error dismissed, 214 U.S. 196, 29 S. Ct. 635, 53 L. Ed. 965, 1909 U.S. LEXIS 1908 (U.S. 1909).

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Time period within which an execution shall not issue on judgment of justice of the peace, see §11-9-131.

Form of an execution issued on judgment of justice of the peace, see §11-9-133.

Issuance, execution, and return of execution, see Miss. R. Civ. P. 69.

RESEARCH REFERENCES

ALR.

Sheriff’s deed as prima facie evidence of return. 36 A.L.R. 1001, 108 A.L.R. 672.

Jurisdiction of justice’s court (or similar court) of action to foreclose lien on land. 115 A.L.R. 539.

Am. Jur.

30 Am. Jur. 2d, Executions §§ 437 et seq.

CJS.

33 C.J.S., Executions §§ 449, 459 et seq.

JUDICIAL DECISIONS

1. In general.

Absence of entries in docket of justice of peace showing that writ of attachment was issued, return of officer thereon, and mailing of notice to defendant in attachment, held not to invalidate proceedings under attachment, where proceedings were in all respects regular, especially where record of deed was accompanied by complete transcript of all proceedings showing every necessary step leading up to judgment and sale under attachment was taken. Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 1934 Miss. LEXIS 132 (Miss. 1934).

This statute must be strictly complied with in all substantial requirements to render a sale of land under execution from a justice of the peace valid. Foote-Patrick Co. v. Merkle, 116 Miss. 720, 77 So. 661, 1917 Miss. LEXIS 356 (Miss. 1917).

Where sales of land are made under judgment of a justice of the peace, the title is not complete until a certified transcript of the proceedings before the justice is filed with conveyance in the proper chancery clerk’s office as provided by this section [Code 1942, § 1938]. Dunlap v. Fant, 74 Miss. 197, 20 So. 874, 1896 Miss. LEXIS 125 (Miss. 1896).

The “certified transcript” must include the docket entries, and, if these be correctly kept, need include nothing else. Hughston v. Cornish, 59 Miss. 372, 1882 Miss. LEXIS 119 (Miss. 1882).

Cross References —

Constitutional authority for the legislature to provide for qualifications of grand and petit jurors, see Miss. Const. Art. 14, § 264.

Compensation paid jurors and determination thereof, see §§25-7-61,25-7-63.

OPINIONS OF THE ATTORNEY GENERAL

Only those persons who are registered to vote in state and local elections should be included on the certified list of registered voters. Those voters who are registered to vote pursuant to the National Voter Registration Act only are not registered to vote in state and local elections and therefore should not be included on the certified voter registration list certified by the circuit clerk for purposes of jury selection. See Sections 13-5-8 and 13-5-4(d). Carpenter, January 10, 1996, A.G. Op. #96-0002.

RESEARCH REFERENCES

ALR.

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case. 1 A.L.R.2d 1291.

Separation of jury in criminal case. 21 A.L.R.2d 1088.

Mandamus or prohibition as remedy to enforce right to jury trial. 41 A.L.R.2d 780.

Juror’s previous knowledge of facts of civil case as disqualification. 73 A.L.R.2d 1312.

Disqualification, as jurors, of resident or taxpayers of litigating political subdivision. 81 A.L.R.2d 708.

Use of intoxicating liquor by jurors: civil cases. 6 A.L.R.3d 934.

Grand jury: Admission of hearsay evidence incompetent at trial as affecting, in absence of statutory regulation, validity of indictment or conviction. 37 A.L.R.3d 612.

Propriety and prejudicial effect, in criminal case, of placing jury in charge of officer who is a witness in the case. 38 A.L.R.3d 1012.

Jury: membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge. 63 A.L.R.3d 1052.

Juror’s voir dire denial or nondisclosure of acquaintance or relationship with attorney in case, or with partner or associate of such attorney, as ground for new trial or mistrial. 64 A.L.R.3d 126.

Competency of juror as affected by his membership in co-operative association interested in the case. 69 A.L.R.3d 1296.

Similarity of occupation between proposed juror and alleged victim of crime as affecting juror’s competency. 71 A.L.R.3d 974.

Law enforcement officers as qualified jurors in criminal case. 72 A.L.R.3d 895.

Former law enforcement officers as qualified jurors in criminal cases. 72 A.L.R.3d 958.

Validity of enactment requiring juror to be an elector or voter or have qualifications thereof. 78 A.L.R.3d 1147.

Religious belief, affiliation, or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire. 95 A.L.R.3d 172.

Jury: visual impairment as disqualification. 48 A.L.R.4th 1154.

Fact that juror in criminal case, or juror’s relative or friend, has previously been victim of criminal incident as ground of disqualification. 65 A.L.R.4th 743.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury–post-Batson state cases. 47 A.L.R.5th 259.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction – state cases. 70 A.L.R.5th 587.

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense. 75 A.L.R.5th 295.

Prejudical effect of juror’s inability to comprehend English. 117 A.L.R.5th 1.

Purposeful inclusion of Negroes in grand or petit jury as unconstitutional discrimination. 4 A.L.R. Fed. 449.

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 9 et seq.

47 Am. Jur. 2d, Jury §§ 142-156.

CJS.

38A C.J.S., Grand Juries §§ 11, 22-35.

50 C.J.S., Juries §§ 262, 263, 268, 278-285, 426.

Lawyers’ Edition.

Prospective juror in capital case whose views on death penalty would prevent or impair performance of duties as juror held subject to exclusion for cause. 80 L. Ed. 2d 841.

Law Reviews.

1989 Mississippi Supreme Court Review: Voir Dire. 59 Miss. L. J. 865, Winter, 1989.

JUDICIAL DECISIONS

1. Validity.

2. Constitutionality.

3. Construction and application, generally.

4. Exclusion of women.

5. Exclusion of Afro-Americans.

6. Powers and function of court.

7. Examination on voir dire.

8. Qualifications of jurors.

9. —Qualified elector.

10. —Prior service as juror.

11. —Opinion and prior knowledge.

12. —Miscellaneous.

13. Want of qualification, effect of.

1. Validity.

The statute does not place improper restrictions as to who can serve on a jury and is not unconstitutional. Milano v. State, 790 So. 2d 179, 2001 Miss. LEXIS 110 (Miss. 2001).

The literacy requirements of this section are constitutional. Edwards v. State, 737 So. 2d 275, 1999 Miss. LEXIS 80 (Miss. 1999).

The literacy and age requirements of §13-5-1 do not violate the constitutional rights of accused persons to be tried by an impartial jury. The literacy requirements of the statute are constitutional, and the statute does not bar persons over 65 years of age from serving on a jury, but merely grants those individuals the privilege to claim an exemption should they desire not to serve. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

Mississippi’s exemption of jurors who are illiterate or under 21 years of age, pursuant to §13-5-1, or over 65 years of age, pursuant to §13-5-25, did not violate the defendant’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

Section13-5-1 is not unconstitutional because it prevents those between the ages of 18 and 21 from serving on juries. Irving v. State, 498 So. 2d 305, 1986 Miss. LEXIS 2518 (Miss. 1986), cert. denied, 481 U.S. 1042, 107 S. Ct. 1986, 95 L. Ed. 2d 826, 1987 U.S. LEXIS 2032 (U.S. 1987).

With the variety of cases now in the courts and the multitude of written documents entered into evidence, the requirement that a juror be able to read and write is a reasonable and nondiscriminatory regulation which operates equally against all persons tried by juries, and is as essential to the state’s obligation to afford an accused a fair trial as it is to assure a fair trial for the state. Terrell v. State, 262 So. 2d 179, 1972 Miss. LEXIS 1305 (Miss. 1972).

The question of whether this section [Code 1942, § 1762] is unconstitutional due to sex discrimination is now moot, since in its revised form it applies to every citizen without regard to sex. Willis v. Carson, 324 F. Supp. 1144, 1971 U.S. Dist. LEXIS 14114 (S.D. Miss. 1971).

Persons alleging discrimination in the jury selection system have the burden of proving it. Ford v. White, 299 F. Supp. 772, 1969 U.S. Dist. LEXIS 12607 (S.D. Miss. 1969).

Code 1942, §§ 1762, 1762-03, and 1766 which deal with the qualifications and selection of jurors are in pari materia and, when considered as a whole, are not void for vagueness. King v. Cook, 297 F. Supp. 99, 1969 U.S. Dist. LEXIS 9067 (N.D. Miss. 1969).

2. Constitutionality.

In a capital murder case, excusing a juror who responded affirmatively when asked if any jurors could not read or write did not violate defendant’s constitutional right to an impartial jury; the requirement of Miss. Code Ann. §13-5-1 that a juror be able to read and write is a reasonable and nondiscriminatory regulation that operates equally against all persons tried by juries. Dycus v. State, 875 So. 2d 140, 2004 Miss. LEXIS 366 (Miss. 2004), vacated, 544 U.S. 901, 125 S. Ct. 1589, 161 L. Ed. 2d 271, 2005 U.S. LEXIS 2212 (U.S. 2005).

The defendant, who was under 21 years old, was not denied his Sixth Amendment fair cross-section right by the fact that a qualified juror is defined, in part, as being over the age of 21. Williams v. State, 772 So. 2d 1113, 2000 Miss. App. LEXIS 572 (Miss. Ct. App. 2000).

3. Construction and application, generally.

To the extent that Fleming v. State, 687 So. 2d 146 (Miss. 1997) stands for the proposition that a violation of the first section of the statute requires an automatic reversal or invokes a presumption of prejudice, it is hereby overruled. Roberts Co. v. Moore, 214 So.3d 202, 2017 Miss. LEXIS 80 (Miss. 2017).

Statute did not violate due process rights of appellant by excluding from jury service persons in his age group, 18 to 20 years; amendment of U.S. Constitution by Twenty-Sixth Amendment did not qualify persons under 21 years of age as jurors under state laws. Joyce v. State, 327 So. 2d 255, 1976 Miss. LEXIS 1768 (Miss. 1976).

Code 1942, §§ 1762, 1762-03, and 1766 which deal with the qualifications and selection of jurors are in pari materia and, when considered as a whole, are not void for vagueness. King v. Cook, 297 F. Supp. 99, 1969 U.S. Dist. LEXIS 9067 (N.D. Miss. 1969).

The direction given by Code 1942, § 1766 to the board of supervisors of the respective counties to select and list the names of qualified persons of good intelligence, sound judgment, and fair character is directive and shall be construed with the other sections of the Code relating to the selection of jurors. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

Code 1942, §§ 1762, 1762-03, and 1766 with respect to the selection of jurors are in pari materia. Reed v. State, 199 So. 2d 803, 1967 Miss. LEXIS 1309 (Miss. 1967), cert. denied, 390 U.S. 413, 88 S. Ct. 1113, 19 L. Ed. 2d 1273, 1968 U.S. LEXIS 2174 (U.S. 1968).

4. Exclusion of women.

Rule that exclusion of women from jury service violates state criminal defendant’s Sixth and Fourteenth Amendment rights to impartial jury trial held not to apply retroactively. Daniel v. Louisiana, 420 U.S. 31, 95 S. Ct. 704, 42 L. Ed. 2d 790, 1975 U.S. LEXIS 27 (U.S. 1975), overruled in part, Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649, 1987 U.S. LEXIS 283 (U.S. 1987).

The requirement that a petit jury be selected from a representative cross section of the community, which is fundamental to the jury trial guaranteed by the Sixth Amendment, is violated by the systematic exclusion of women from jury panels. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690, 1975 U.S. LEXIS 2 (U.S. 1975).

A state criminal defendant’s right to an impartial jury trial under the Sixth and Fourteenth Amendments is violated by the operation of a state’s constitutional and statutory provisions which operate to exclude women from jury service. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690, 1975 U.S. LEXIS 2 (U.S. 1975).

The Fourteenth Amendment is not applicable on the issue as to whether or not women will be required to serve as jurors in a state court, the power to prescribe the qualifications of jurors being in the legislature, which may include or exclude women from jury duty. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

A defendant appealing a conviction of rape did not have standing to raise the issue as to whether failure to include women as qualified jurors was in violation of his rights under the Fourteenth Amendment of the Constitution. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Where the jury for the term of court at which the defendant was tried was drawn prior to the effective date of the amendment permitting women to serve on juries, a motion to quash the indictment on the ground that women were excluded from the jury by statute was properly overruled. Gordon v. State, 222 So. 2d 141, 1969 Miss. LEXIS 1522 (Miss. 1969).

Limiting jury service to males and excluding women from such service does not constitute a denial to a female defendant of equal protection of the laws. White v. State, 214 So. 2d 467, 1968 Miss. LEXIS 1310 (Miss. 1968).

The exclusion of women from jury service does not constitute an invalid discrimination. Reed v. State, 199 So. 2d 803, 1967 Miss. LEXIS 1309 (Miss. 1967), cert. denied, 390 U.S. 413, 88 S. Ct. 1113, 19 L. Ed. 2d 1273, 1968 U.S. LEXIS 2174 (U.S. 1968).

Women are not required to perform jury duty in Mississippi; nor does the federal constitution require women to serve on juries in state courts. Shinall v. State, 199 So. 2d 251, 1967 Miss. LEXIS 1290 (Miss.), cert. denied, 389 U.S. 1014, 88 S. Ct. 590, 19 L. Ed. 2d 660, 1967 U.S. LEXIS 27 (U.S. 1967), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

Unlike classification by race, classification of persons eligible for jury duty on the basis of sex, applicable alike to all races, is not unconstitutional. Cobb v. Greenville, 187 So. 2d 861, 1966 Miss. LEXIS 1364 (Miss. 1966).

5. Exclusion of Afro-Americans.

The trial court in a narcotics prosecution did not err in overruling defendant’s motion to quash the indictment and petit venire, which motion alleged that the statutory exclusion of persons 18, 19 and 20 years of age to serve on grand and petit juries violated defendant’s federal constitutional rights and systematically excluded black persons from grand and petit juries; the fact that such age group has been permitted to register and vote by amendment to the U.S. Constitution did not qualify persons under 21 to serve as jurors under state law. Fermo v. State, 370 So. 2d 930, 1979 Miss. LEXIS 2028 (Miss. 1979).

The contention that there had been a systematic exclusion of Negroes and Indians from grand juries was not supported where, though names of prospective jurors had to be drawn from a list of voters or people owning real estate and it was difficult to get names of people who don’t vote or own real property, and though there was a small number of Indians in the county, Indians and Negroes were on the venire from which the grand jury was chosen. Tubby v. State, 327 So. 2d 272, 1976 Miss. LEXIS 1780 (Miss. 1976).

Where county officials charged with grand jury selection knew or had reason to know that the voter registration lists failed to be representative of adult black males, they were under an affirmative duty to utilize a selection method which had the potential for yielding juries which represented a fair cross-section of the qualified citizens of the community, and this duty included a resort to the county land rolls as an additional source of qualified blacks. Ford v. Hollowell, 385 F. Supp. 1392, 1974 U.S. Dist. LEXIS 11740 (N.D. Miss. 1974).

Under-registration of Negroes on jury lists because of failure to register to vote does not constitute discrimination. Ford v. White, 299 F. Supp. 772, 1969 U.S. Dist. LEXIS 12607 (S.D. Miss. 1969).

The voter registration rolls of April 1966 of Quitman County were unconstitutionally tainted by the vestiges of a state-sanctioned discriminatory voter registration procedure, the effect of which was to prevent adequate representation of Negroes on the jury lists. King v. Cook, 298 F. Supp. 584, 1969 U.S. Dist. LEXIS 12753 (N.D. Miss. 1969).

Jurors are not to be summoned because of their race, but rather summoned without discrimination from all persons qualified as jurors, and where a record does not show a systematic exclusion of Negroes from jury service, the state has met the burden of proof necessary to show that there is no systematic exclusion of Negroes from the jury. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Where defendant’s proof showed that a disproportion between Negroes and whites on the jury lists had existed over a long period of time, he had made out a prima facie case of the systematic exclusion of Negroes from the jury which indicted him, and it was incumbent upon the state to show that there was no systematic exclusion of Negroes from the grand jury and that defendant’s constitutional rights were not infringed by the manner and procedure in which the grand jurors were drawn, and in the absence of such rebuttal testimony on the part of the state the presumption of purposeful prior exclusion stands and the motion to quash the indictment should have been sustained. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

Allegations that because of the interrelationship between the racial restrictions of the Mississippi voter qualification laws and requirements with respect to the selection of grand and petit jurors a defendant would be denied his equal civil rights to trial by a jury free from exclusion were insufficient to justify the removal to the federal courts of the trial of a Negro charged with the crime of rape. Bass v. Mississippi, 381 F.2d 692, 1967 U.S. App. LEXIS 5438 (5th Cir. Miss. 1967).

In order for the state to sustain the burden of refuting the defendant’s prima facie case that Negroes had been systematically excluded from the juries of the county in which he was tried, it must be shown that the board of supervisors had abandoned its former practice of systematic exclusion and that Negroes were currently being selected for jury service as other qualified citizens. Black v. State, 187 So. 2d 815, 1966 Miss. LEXIS 1355 (Miss. 1966).

Where the state did not sustain burden of refuting the prima facie case made by the defendant that Negroes had been systematically excluded from juries of Chickasaw County, the defendant’s conviction could not be allowed to stand and the indictment against him was quashed and the cause remanded to await the action of a qualified grand jury summoned from a proper jury list. Black v. State, 187 So. 2d 815, 1966 Miss. LEXIS 1355 (Miss. 1966).

Issue whether Negroes were systematically excluded from grand and petit juries held waived by failure of competent counsel for Negro defendant to raise it in the trial court. Gordon v. State, 160 So. 2d 73 (Miss. 1964).

The complete exclusion from jury service, of Negroes in a county in which they are a majority, violates the constitutional rights of a Negro charged with crime. United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 1959 U.S. App. LEXIS 4557 (5th Cir. Miss.), cert. denied, 361 U.S. 838, 80 S. Ct. 58, 4 L. Ed. 2d 78, 1959 U.S. LEXIS 522 (U.S. 1959), cert. denied, 361 U.S. 850, 80 S. Ct. 109, 4 L. Ed. 2d 89, 1959 U.S. LEXIS 613 (U.S. 1959).

Whether there has been a systematic racial discrimination by administrative officials in the selection of jurors is a question to be determined from the facts in each particular case. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

The board of supervisors is not required to place in a jury box the names of all the Negroes who meet the qualifications for jury service, since they do not now and have never placed in a jury box for any one year the names of all the white men who meet such qualifications. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

In a prosecution of a Negro for the rape of a white woman the conclusion of the trial judge, in passing upon the issue of fact presented by a motion to quash the indictment, that there had been no systematic, intentional, deliberate discrimination on account of race, was not manifestly wrong in view of the evidence. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

The proof by a Negro defendant on a charge for an offense against a white person, that no Negro had served on a grand jury for the past thirty years is very strong evidence of purposeful racial discrimination in violation of the Fourteenth Amendment to the Constitution of the United States, which the state has the burden of disproving by showing that the names of Negroes were not placed in the jury box for some other reason than the fact that they are Negroes. Seay v. State, 212 Miss. 712, 55 So. 2d 430, 1951 Miss. LEXIS 499 (Miss. 1951).

In a prosecution of Negro defendant for felonious assault of white person where the evidence failed to disclose any reason for the absence of the names of Negroes in the jury boxes other than the mere fact that supervisors just did not place their names in the box, and no reason was given for the absence of the names of Negroes in the jury boxes, the conviction of the defendant will be reversed. Seay v. State, 212 Miss. 712, 55 So. 2d 430, 1951 Miss. LEXIS 499 (Miss. 1951).

Where, in a county the adult population of which is more than 35% Negro, no Negro has served on a grand or petit criminal court jury for 30 years, the inference of systematic exclusion is not sufficiently repelled by showing that a relatively small number of Negroes meet a requirement that a juror must be a qualified elector. Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76, 1947 U.S. LEXIS 1545 (U.S. 1947).

Where murder indictment was quashed on ground that Negroes were omitted from jury box from which grand jury was drawn, defendant could not complain of trial court’s refusal to quash second indictment on ground that grand jury was drawn from registration books and not from jury box. Pearson v. State, 176 Miss. 9, 167 So. 644, 1936 Miss. LEXIS 111 (Miss. 1936).

6. Powers and function of court.

Error of court in refusing to excuse jurors for cause in criminal case will not be considered on appeal where it appears from record that appellant used only five peremptory challenges and hence his peremptory challenges were not exhausted. Bone v. State, 207 Miss. 20, 41 So. 2d 347, 1949 Miss. LEXIS 314 (Miss. 1949).

Opinion of a juror formed on rumor does not disqualify him if he is fair and impartial. The trial judge should resolve all doubts as to juror’s fairness, impartiality, and freedom from bias and prejudice in favor of the accused and the judgment of the circuit court as to qualifications of juror is prima facie correct. Donahue v. State, 142 Miss. 20, 107 So. 15, 1926 Miss. LEXIS 55 (Miss. 1926).

It is proper for the court to excuse the jailer. Hale v. State, 72 Miss. 140, 16 So. 387, 1894 Miss. LEXIS 88 (Miss. 1894).

7. Examination on voir dire.

Although a prospective juror did not initially disclose knowledge of defendant, this omission was later cured when the trial judge conducted a second voir dire and discovered the prospective juror and defendant were distantly related. The trial court did not abuse its discretion when it accepted the prospective juror’s assurance that she could render a fair and impartial judgment. Johnson v. State, 224 So.3d 549, 2017 Miss. App. LEXIS 104 (Miss. Ct. App. 2017).

Trail judge complied with this section by asking if anyone had a conviction resulting in imprisonment. Hall v. State, 201 So.3d 424, 2016 Miss. LEXIS 540 (Miss. 2016).

Errors relating to the jury selection process were forfeited on appeal due to a failure to object contemporaneously below; at any rate, the outcome would have been the same because, while the trial court erred in appointing a foreperson, the trial court either did not commit error or cured other errors. Personal privilege exemptions had to be asserted by the individual, jurors who sat on a jury in the last two years could have been required to serve due to a lack of potential jurors, an error relating to a failure to complete the jury questionnaire was corrected during direct questioning at voir dire, and a juror’s answer to a question about prior convictions fulfilled the statutory requirements. Hall v. State, — So.3d —, 2016 Miss. LEXIS 125 (Miss. Mar. 17, 2016).

A trial court’s discretion in passing upon the extent and propriety of questions addressed to prospective jurors is not unlimited and the Supreme Court will take note of abuse on appeal where prejudice to the accused is present. Williams v. State, 544 So. 2d 782, 1987 Miss. LEXIS 2843 (Miss. 1987).

Although the trial court properly condemned the conduct of a district attorney in asking jurors during voir dire whether or not they would vote guilty if the state proved its case and whether they would vote for death if the state proved that the aggravating circumstances outweighed the mitigating circumstances, the district attorney’s conduct did not constitute reversible error where, in context with the jury instructions given to the jury by the trial judge, it was clear that the jurors were aware of their proper role in determining guilt and sentence. Williams v. State, 544 So. 2d 782, 1987 Miss. LEXIS 2843 (Miss. 1987).

A trial court cannot disparage the defense set up in the case before the jury trying the case. Leverett v. State, 112 Miss. 394, 73 So. 273, 1916 Miss. LEXIS 123 (Miss. 1916).

8. Qualifications of jurors.

Defendant’s claims of error as to an allegedly illiterate juror were without merit because under Miss. Code Ann. §13-5-1, a juror’s illiteracy would not vitiate the verdict. Also the Mississippi Supreme Court has held that a person who can read and write only a few words is qualified as a juror and the record showed that the juror testified that he could read the Bible, road signs and “anything in Wal-Mart.” Burnside v. State, 912 So. 2d 1018, 2005 Miss. App. LEXIS 204 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 679 (Miss. 2005).

In a capital murder case, a court properly removed a juror from the panel where she stated that she could only fill out some of the form and she had her sister-in-law actually fill out the form for her. Scott v. State, 878 So. 2d 933, 2004 Miss. LEXIS 650 (Miss. 2004).

Issue raised at trial and on direct appeal from an inmate’s capital murder conviction concerning the exclusion of a juror for failing to meet the qualifications of Miss. Code Ann. §13-5-1 was found to be without merit, and the issue was therefore barred pursuant to Miss. Code Ann. §99-39-21(2); because the trial court committed no error in excusing this juror and another juror for not meeting the qualifications under Miss. Code Ann. §13-5-1, then the attorneys were not ineffective for failing to object to the jurors’ dismissal, and in any event, the attorneys’ decisions regarding the final composition of the jury were generally determined to be matters of trial strategy. Smith v. State, 877 So. 2d 369, 2004 Miss. LEXIS 547 (Miss. 2004).

Section13-5-67 is read against the backdrop of the general rule that a party who fails to object to the jury’s composition before it is impaneled waives any right to complain thereafter. The word “disqualified” in §13-5-67 has breadth considerably beyond that of §13-5-1’s initial qualifications for jury service. Myers v. State, 565 So. 2d 554, 1990 Miss. LEXIS 294 (Miss. 1990).

The right to a jury of one’s peers does not entitle the defendant in a criminal case to a jury which includes convicted felons or bootleggers. Shows v. State, 267 So. 2d 811, 1972 Miss. LEXIS 1428 (Miss. 1972).

The legislature has a right to impose reasonable qualifications for jurors when such qualifications do not violate the constitutional rights of accused persons to be tried by an impartial jury. Shows v. State, 267 So. 2d 811, 1972 Miss. LEXIS 1428 (Miss. 1972).

A defendant is entitled to be tried in a county where a reasonable proportion of the citizens are qualified for jury service. Magness v. State, 103 Miss. 30, 60 So. 8, 1912 Miss. LEXIS 136 (Miss. 1912).

9. —Qualified elector.

Juror who had paid one-half of his taxes on or before February 1, remaining half not being due under statute at time of murder trial, held, as respects payment of taxes, qualified juror. Myers v. State, 167 Miss. 76, 147 So. 308, 1933 Miss. LEXIS 96 (Miss. 1933).

10. —Prior service as juror.

Although defendant argued that the trial court committed reversible error by excusing two potential jurors because they had served on a jury in the past two years, rather than permitting those jurors the discretion to decide whether or not to serve, procedural bar aside, the error was harmless because defendant did not claim any constitutional violation or that he was in any manner prejudiced by the dismissal of the potential jurors. Gause v. State, 65 So.3d 295, 2011 Miss. LEXIS 314 (Miss. 2011), limited, Hall v. State, 127 So.3d 202, 2013 Miss. LEXIS 649 (Miss. 2013).

A member of an indicting grand jury may not serve on the defendant’s petit jury. The accuser may not also be the trier of fact since such a practice is inconsistent with the constitutional requirement of an impartial jury. Hood v. State, 523 So. 2d 302, 1988 Miss. LEXIS 74 (Miss. 1988).

The fact that the foreman of the grand jury which indicted the defendant had also served on a petit jury in the circuit court approximately 6 months before did not vitiate the indictment and make it subject to be quashed, for the prohibition in this section [Code 1942, § 1762] specifically relates to talesmen or tales jurors who are served in the two preceding years and does not prohibit a qualified elector from serving as a grand juror or as foreman of a grand jury. Russell v. Bailey, 197 So. 2d 469, 1967 Miss. LEXIS 1525 (Miss. 1967).

Affidavit and allegation that defendant and his counsel did not know of the situation, is necessary with respect to motion for new trial on ground that trial juror was disqualified as having been member of indicting grand jury. Ratcliff v. State, 197 Miss. 289, 20 So. 2d 69, 1944 Miss. LEXIS 299 (Miss. 1944).

Defendant convicted in homicide prosecution, was not entitled to new trial on ground that a trial juror was disqualified as having been a member of the indicting grand jury, where neither defendant nor his counsel made affidavit that they did not know of the situation, and defendant failed to testify at the hearing on the motion, and where counsel’s ignorance of the juror’s identity persisted past the voir dire examination and escaped the admitted practice of scanning such jury list. Ratcliff v. State, 197 Miss. 289, 20 So. 2d 69, 1944 Miss. LEXIS 299 (Miss. 1944).

That portion of the statute relating to the service by a juror in the trial of as many as three cases does not apply to members of the regular panel. Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 So. 360, 1887 Miss. LEXIS 100 (Miss. 1887).

A member of the grand jury which found the indictment is incompetent as a petit juror on the trial of the accused. Beason v. State, 34 Miss. 602, 1857 Miss. LEXIS 182 (Miss. 1857); House v. State, 96 Miss. 653, 51 So. 274, 1910 Miss. LEXIS 169 (Miss. 1910).

11. —Opinion and prior knowledge.

When a juror, who knew the victim’s mother, swore that he would be impartial in defendant’s trial for fondling, the trial court did not err in allowing the juror to sit on the jury. Wright v. State, 9 So.3d 447, 2009 Miss. App. LEXIS 243 (Miss. Ct. App. 2009).

There was no ground for a new trial in the fact that one juror was an employee of one of the defendant’s witnesses in a suit arising out of an automobile collision, where such witness was an engineer who had no interest whatever in the case but who made a map of the road where the accident occurred, and in testifying, simply identified the map as that made by him and stated nothing as to how or why the accident happened, since a juror is not rendered incompetent to sit in the trial of a case, by virtue of knowledge of incidental or collateral facts or facts about which there is no controversy. Wells v. Autry, 235 So. 2d 706, 1970 Miss. LEXIS 1463 (Miss. 1970).

The exclusion by the court, of its own motion, of a juror who heard part of former trial held not reversible error. Barnett v. State, 146 Miss. 893, 112 So. 586, 1927 Miss. LEXIS 255 (Miss. 1927).

Opinion of a juror formed on rumor does not disqualify him if he is fair and impartial, it being for the court to determine his fitness. Donahue v. State, 142 Miss. 20, 107 So. 15, 1926 Miss. LEXIS 55 (Miss. 1926).

12. —Miscellaneous.

Trial court properly failed to strike prospective jurors for cause because there was no showing that either juror had a close personal relationship with the victim’s son, but rather, there was only a showing that the jurors and the son had worked together and that the brother of one of the jurors was friends with the son; the relationships disclosed were insufficient to disturb the trial court’s judgment that both prospective jurors on their oaths could be impartial in defendant’s trial. Patton v. State, 248 So.3d 763, 2018 Miss. LEXIS 62 (Miss. 2018).

Trial court erred in granting a customer a new trial on the ground that one of the jurors was a convicted felon because it should not have relied upon the supreme court’s opinion in a prior case since the customer made no claim and presented no proof of a constitutional violation; while the supreme court mandated a new trial where a juror was a convicted felon, it addressed a defendant’s constitutional right to a fair and impartial jury and did not analyze the “vitiate” language of the statute. Roberts Co. v. Moore, 214 So.3d 202, 2017 Miss. LEXIS 80 (Miss. 2017).

Denial of the inmate’s petition for postconviction relief under Miss. Code Ann. §13-5-1 was proper where the issue was procedurally barred from being raised for the first time in that petition; further, inmate’s contention was without merit because the record indicated that the inmate had affirmed the juror’s presence after fully exploring her abilities to read, write, and comprehend English. Puckett v. State, 879 So. 2d 920, 2004 Miss. LEXIS 592 (Miss. 2004), cert. denied, 544 U.S. 924, 125 S. Ct. 1638, 161 L. Ed. 2d 483, 2005 U.S. LEXIS 2506 (U.S. 2005).

Persons convicted of infamous crimes are not competent to serve on juries. Fleming v. State, 687 So. 2d 146, 1997 Miss. LEXIS 2 (Miss. 1997), overruled in part, Roberts Co. v. Moore, 214 So.3d 202, 2017 Miss. LEXIS 80 (Miss. 2017).

A trial judge in a murder prosecution did not err in refusing to exclude a juror after she had been accepted, even though the juror’s daughter had been murdered six years earlier, where the attorneys inadvertently failed to ask the juror during voir dire whether a member of her family had been a victim of a crime, and therefore the juror neither withheld nor misrepresented information. Spivey v. Mowdy, 617 So. 2d 999, 1992 Miss. LEXIS 688 (Miss. 1992).

Under §13-5-1, which declares ineligible jurors who have been “convicted of an infamous crime, or the unlawful sale of intoxicating liquor within a period of 5 years,” a juror’s competency was not corrupted by her husband’s prior liquor-related convictions. Myers v. State, 565 So. 2d 554, 1990 Miss. LEXIS 294 (Miss. 1990).

The trial court did not err in refusing to declare a mistrial on the basis that a juror was unable to read and write, where the evidence on such issue was conflicting, thereby creating a factual dispute for resolution by the trial judge. Johnson v. State, 416 So. 2d 383, 1982 Miss. LEXIS 1935 (Miss. 1982).

The trial judge did not abuse his discretion in overruling defendant’s motion to quash his indictment for breaking and entering with intent to commit rape on grounds that the husband of the prosecutrix and the wife of a first cousin of the husband of the prosecutrix were members of the grand jury which indicted the defendant, where the evidence showed that the husband of the prosecutrix was not present during deliberations concerning the charges against defendant and the other grand juror complained of, though present during the deliberations, did not “open her mouth,” nor did she do anything to influence the other grand jurors. Southward v. State, 293 So. 2d 343, 1974 Miss. LEXIS 1785 (Miss. 1974).

Where a juror in a civil case told the trial judge that he did not at that time employ a lawyer but might have to do so if his son were indicted in another case, but that employment of a lawyer would have no effect on his deliberation, and the juror later employed one of the defense counsel in the civil case as his son’s attorney, and the judge noted that he knew the juror to be an honest and upright person, there was no reversible error in the trial judge’s failure to notify counsel with reference to what he had been told by the juror. Loden v. Joslin, 229 So. 2d 825, 1969 Miss. LEXIS 1256 (Miss. 1969).

It is only sale of intoxicating liquors within past five years that disqualifies person from jury service under this section [Code 1942, § 1762] and person is not disqualified from jury service by plea of guilty or by conviction of unlawful possession of intoxicating liquor in state courts or by being under bond to await action of federal grand jury for possession of intoxicating liquors on which federal tax had not been paid. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

Indictment in murder prosecution held not void because grand juror allegedly served both as election commissioner and grand juror in finding and presentment of indictment. Robinson v. State, 178 Miss. 568, 173 So. 451, 1937 Miss. LEXIS 228 (Miss. 1937).

A drunk man is incompetent. Guice v. State, 60 Miss. 714, 1883 Miss. LEXIS 2 (Miss. 1883); Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 So. 360, 1887 Miss. LEXIS 100 (Miss. 1887).

An employee of one of the parties is incompetent as a juror. Hubbard v. Rutledge, 57 Miss. 7, 1879 Miss. LEXIS 2 (Miss. 1879).

13. Want of qualification, effect of.

Juror’s service did not prejudice defendant, and her verdict and sentence would not be overturned because, although the juror had not been a resident of the county long enough to meet the qualification requirements of this statute, defendant’s attorney did not object to the juror’s admission on his juror card that he had only lived in the county for two months; despite knowing that the juror had only lived in the county for two months, when defendant and her attorney decided between challenging that juror or another juror with their last challenge, defendant’s attorney chose the other juror and made no request for additional challenges; there was no evidence of fault on the juror’s part; and he served as a fair and impartial juror. Dewitt v. State, — So.3d —, 2018 Miss. App. LEXIS 231 (Miss. Ct. App. May 8, 2018), cert. denied, 258 So.3d 286, 2018 Miss. LEXIS 528 (Miss. 2018).

Defendant was not entitled to a new trial when it was determined that one juror was a resident of Memphis, Tennessee, thereby violating the freeholder requirement of Miss. Code. Ann. §13-5-1 (1972). By its own terms, the statute provides that a lack of qualifications on the part of a juror shall not vitiate a verdict. Wright v. State, 805 So. 2d 577, 2001 Miss. App. LEXIS 375 (Miss. Ct. App. 2001).

A defendant’s motion for a new trial should have been granted where the parties stipulated that a juror had served in violation of §13-5-1, which prohibits service of any juror who has a case pending in that court, and neither the state nor the defense was aware of such. Brown v. State, 529 So. 2d 537, 1988 Miss. LEXIS 197 (Miss. 1988).

Verdict of jury in prosecution for unlawful possession of intoxicating liquor is not invalid because one of jurors was not qualified elector, was not drawn, but was summoned by mistake, was accepted and served. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Inability of a juror to read and write does not disqualify him although unknown to defendant, so as to entitle defendant to a new trial. Huggins v. State, 103 Miss. 227, 60 So. 209, 1912 Miss. LEXIS 160 (Miss. 1912).

An objection that a juror was an alien and therefore not a qualified elector, cannot be made after verdict. Where it is not shown that the facts upon which an objection to a juror is based were unknown when the juror was accepted, the objection will be unavailing. Fulcher v. State, 82 Miss. 630, 35 So. 170, 1903 Miss. LEXIS 188 (Miss. 1903).

Under Const. 1890 § 264, as it formerly read, providing certain qualifications for jurors, but directing that the want thereof shall not vitiate any verdict, which section of the Constitution is substantially embodied in this section [Code 1942, § 1762], it is not cause for reversing a conviction of murder that it was discovered after the verdict that one of the jurors was not a qualified elector and had not been drawn on the venire but had been summoned by mistake in place of a person by the same name who was drawn. Complaint may be made only where that occurs which impugns the fairness of the trial. Tolbert v. State, 71 Miss. 179, 14 So. 462, 1893 Miss. LEXIS 185 (Miss. 1893).

Const. 1890 § 264, as that section formerly read, declaring that “the want of such qualification in any juror shall not vitiate any indictment or verdict,” which section of the Constitution is substantially embodied in this section [Code 1942, § 1762], does not apply where the judgment is assailed because of the court’s action in overruling an exception seasonably made to a juror. Nail v. State, 70 Miss. 32, 11 So. 793, 1892 Miss. LEXIS 79 (Miss. 1892).

Editor’s Notes —

Section 12 of Chapter 378, Laws of 1974, which chapter enacted this section, reads as follows:

“SECTION 12. This act shall take effect and be in force from and after January 1, 1975, except that jurors shall continue to be drawn in accordance with the provisions of present law until implementation of the juror selection procedure herein provided for in April 1975.”

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

ALR.

Proof as to exclusion or discrimination against eligible class or race in respect to jury in criminal case. 1 A.L.R.2d 1291.

Exclusion of attorneys from jury list in criminal cases. 32 A.L.R.2d 890.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case. 94 A.L.R.3d 15.

Propriety of asking prospective female jurors questions on voir dire not asked of prospective male jurors, or vice versa. 39 A.L.R.4th 450.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury–post-Batson state cases. 47 A.L.R.5th 259.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation – post-Batson state cases. 63 A.L.R.5th 375.

Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction – state cases. 70 A.L.R.5th 587.

Purposeful inclusion of Negroes in grand or petit jury as unconstitutional discrimination justifying relief in Federal Court. 4 A.L.R. Fed. 449.

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 8-10, 19, 21.

9 Am. Jur. Proof of Facts 2d, Discrimination in Jury Selection – Systematic Exclusion or Underrepresentation of Identifiable Group, §§ 19 et seq. (proof of systematic underrepresentation of identifiable group in selection of prospective jurors).

CJS.

38A C.J.S., Grand Juries §§ 11, 16-18, 20-35.

50 C.J.S., Juries §§ 263, 278-280, 284-301, 310-322.

JUDICIAL DECISIONS

1. In general.

2. Peremptory challenges.

3. Random selection.

4. No systematic exclusion.

1. In general.

Although provisions for jury selection are merely directory, courts must make every reasonable effort to comply with the statutory method of drawing, selecting and serving jurors; the jury system must remain untainted and beyond suspicion. Avery v. State, 555 So. 2d 1039, 1990 Miss. LEXIS 7 (Miss. 1990), overruled, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In civil jury trial in Federal District Court, equal protection component of Fifth Amendment due process clause prohibits private litigant from using peremptory challenge to exclude prospective jurors on account of race because such race-based exclusion violates equal protection rights of excluded jurors; opposing litigant has third-party standing to raise excluded jurors’ rights in opposing litigant’s own behalf; and, while role of litigants in determining jury’s composition may provide one reason for wide acceptance of jury system and its verdicts, if race stereotypes are price for acceptance of jury panel, price is too high to meet standard of constitution. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660, 1991 U.S. LEXIS 3023 (U.S. 1991).

“Significant period of time” for purposes of determining federal constitutional violation is not limited to period of time after passage of Miss. Jury Selection Act which was a step forward in eradicating racial discrimination in selection of juries; plaintiff black state prisoner indicted for and convicted of murder who claimed denial of equal protection because for 20 year period up to and including his indictment all 42 grand jury foremen appointed by circuit judges of county he was indicted were white even though population of county was 43% black, established prima facie case of racial discrimination in county, which State failed to rebut inasmuch as its rebuttal testimony merely indicated that judges in county never indicated to circuit clerk that they selected grand jury foremen based on race, and testimony neither denied use of racial criteria nor advanced any other objective non-discriminatory criteria; and conviction would be vacated. Johnson v. Puckett, 929 F.2d 1067, 1991 U.S. App. LEXIS 7522 (5th Cir. Miss.), cert. denied, 502 U.S. 898, 112 S. Ct. 274, 116 L. Ed. 2d 226, 1991 U.S. LEXIS 5358 (U.S. 1991).

Although persons over 65 years of age and persons who have served on a jury within 2 years are exempt from jury service under §13-5-25, neither the circuit court nor the deputy circuit clerk have authority to act unilaterally and strike such persons from the jury list. Such persons are eligible for jury service and have every lawful right and authority to serve if called and selected. When their names are drawn, such persons must be summoned the same as other prospective jurors and no one has authority to exempt any such juror from service unless he or she claims the privilege and asks to be excused. Thus, a judgment of conviction and sentence was reversed where the deputy circuit clerk unilaterally struck from the jury list all persons over 65 years of age and all persons who had served on a jury within the 2 preceding years. Adams v. State, 537 So. 2d 891, 1989 Miss. LEXIS 28 (Miss. 1989).

A defendant indicted by a county grand jury on various drug-related offenses was not entitled to removal of the indictments to federal court, notwithstanding his contention that the grand juries were illegally constituted in that blacks had not been considered for appointment as forepersons, where state law clearly provided that no one could be excluded from jury service because of race and where there was no equivalent basis for a prediction that defendant could not enforce his federal rights in state court. Williams v. Mississippi, 608 F.2d 1021, 1979 U.S. App. LEXIS 9387 (5th Cir. Miss. 1979), cert. denied, 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 8, 1980 U.S. LEXIS 2550 (U.S. 1980).

In a homicide prosecution, the trial judge correctly overruled a defense motion to quash the indictment, venire and panel on the ground that blacks and women were systematically excluded from serving as grand jury foremen, where Mississippi followed the “random” method of jury selection and where the evidence was insufficient to establish a prima facie case of discrimination in the selection of jury foremen by trial judges. Herring v. State, 374 So. 2d 784, 1979 Miss. LEXIS 2347 (Miss. 1979).

2. Peremptory challenges.

In a robbery case, the trial court’s ruling denying defendant’s Batson challenge against the State’s peremptory strike of a member of the venire was not clearly erroneous or against the overwhelming weight of the evidence. Payne v. State, 207 So.3d 1282, 2016 Miss. App. LEXIS 493 (Miss. Ct. App. 2016).

Mississippi caselaw did not extend the Batson protection to religiously based peremptory strikes of jurors; the only objection offered by defendant was a Batson objection. Because defendant did not object that religiously based peremptory strikes violated Miss. Const. Art. 3, § 18 and Miss. Code Ann. §13-5-2, the trial judge did not err in accepting the reason offered by the State as a race-neutral reason not prohibited by Batson. Jackson v. State, 910 So. 2d 658, 2005 Miss. App. LEXIS 170 (Miss. Ct. App.), cert. denied, 904 So. 2d 184, 2005 Miss. LEXIS 402 (Miss. 2005).

Peremptory challenges to jurors may not be exercised to exclude a juror on the basis of race, color, religion, sex, national origin, or economic status. Thorson v. State, 721 So. 2d 590, 1998 Miss. LEXIS 392 (Miss. 1998).

3. Random selection.

In a drug case, a trial court did not err by denying a motion to quash the venire due to the fact that less than three percent were minorities; there was no evidence to show that the jury was not selected at random under Miss. Code Ann. §13-5-2. Magee v. State, 951 So. 2d 589, 2007 Miss. App. LEXIS 123 (Miss. Ct. App. 2007).

In defendant’s trial for the sale of cocaine, defendant failed to make a prima facie showing that the fair cross-section requirement was violated; defendant also failed to show that there was a systematic exclusion of blacks from the jury pool. Yarbrough v. State, 911 So. 2d 951, 2005 Miss. LEXIS 610 (Miss. 2005).

Where defendant failed to show that the under-representation of a racial group on his jury was based on a systematic exclusion in selection of the jury venire, defendant was not denied a jury that was a fair cross-section of the community. Pratt v. State, 870 So. 2d 1241, 2004 Miss. App. LEXIS 273 (Miss. Ct. App. 2004).

4. No systematic exclusion.

Defendant’s conviction for the sale of cocaine was appropriate because a single venire wherein a distinctive group was underrepresented did not constitute systematic exclusion of that group from the jury-selection process. Simmons v. State, 13 So.3d 844, 2009 Miss. App. LEXIS 471 (Miss. Ct. App. 2009).

Editor’s Notes —

Former §13-5-3 specified how the list of jurors was to be procured.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

Only those persons who are registered to vote in state and local elections should be included on the certified list of registered voters. Those voters who are registered to vote pursuant to the National Voter Registration Act only are not registered to vote in state and local elections and therefore should not be included on the certified voter registration list certified by the circuit clerk for purposes of jury selection. See Sections 13-5-1, 13-5-8 and 13-5-4(d). Carpenter, January 10, 1996, A.G. Op. #96-0002.

RESEARCH REFERENCES

ALR.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters. 80 A.L.R.3d 869.

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 1, 3.

47 Am. Jur. 2d, Jury §§ 1, 40.

CJS.

38A C.J.S., Grand Juries §§ 2-5, 9, 90.

50A C.J.S., Juries §§ 1, 2.

Editor’s Notes —

Former §13-5-5 provided a procedure by which resident freeholders not qualified as electors could be made competent jurors by court order.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

An individual cannot continue to serve as jury commissioner and as a member of the board of aldermen at the same time. Tucker, July 8, 2005, A.G. Op. 05-0335.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Jury §§ 107-108.

CJS.

38A C.J.S., Grand Juries §§ 41, 43.

50 C.J.S., Juries §§ 270, 312.

Editor’s Notes —

Former §13-5-7 specified who were competent jurors after entry of a court order provided for in former §13-5-5.

Amendment Notes —

The 2010 amendment rewrote (2).

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

Only those persons who are registered to vote in state and local elections should be included on the certified list of registered voters. Those voters who are registered to vote pursuant to the National Voter Registration Act only are not registered to vote in state and local elections and therefore should not be included on the certified voter registration list certified by the circuit clerk for purposes of jury selection. See Sections 13-5-1 and 13-5-4(d). Carpenter, January 10, 1996, A.G. Op. #96-0002.

The master voter registration list of persons available for selection on juries should not include the names of persons who are on the National Voter Registration Act “inactive” list. Carpenter, March 6, 1998, A.G. Op. #98-0124.

Maintenance of the master list means that the list is not to include the names of individuals no longer eligible to serve on a jury. Ashley, March 17, 2000, A.G. Op. #2000-0117.

RESEARCH REFERENCES

ALR.

Exclusion of attorneys from jury list in criminal cases. 32 A.L.R.2d 890.

Inclusion or exclusion or first and last days in computing time for jury drawing, or furnishing of jury list, which must take place a certain number of days before a known future date. 98 A.L.R.2d 1421.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters. 80 A.L.R.3d 869.

Am. Jur.

38 Am. Jur. 2d(Rev), Grand Jury §§ 8, 10, 19, 21.

47 Am. Jur. 2d, Jury §§ 101-103, 109, 113-115, 147, 148.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selection, drawing, and summoning of jurors).

CJS.

38A C.J.S., Grand Juries §§ 38-44.

50 C.J.S., Juries §§ 266-270, 298, 307-310.

Editor’s Notes —

Former §13-5-9 provided an alternate procedure by which lists of jurors were to be procured under the alternative procedures of former §13-5-5.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Jury §§ 104, 105.

9 Am. Jur. Proof of Facts 2d, Discrimination in Jury Selection – Systematic Exclusion or Underrepresentation of Identifiable Group, §§ 19 et seq. (proof of systematic underrepresentation of identifiable group in selection of prospective jurors).

CJS.

50 C.J.S., Juries §§ 308-309.

Editor’s Notes —

Former §13-5-11 stated when the alternate procedures pertaining to jurors set forth in former §§13-5-5,13-5-7 and13-5-9 became operative.

Amendment Notes —

The 2010 amendment rewrote the fourth sentence; and added the fifth sentence.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

It is not necessary to maintain physical jury wheel and jury box if clerk is using computer, as long as clerk is capable of printing out physical record of contents of jury wheel and jury box if it becomes necessary to do so. Salazar, Dec. 3, 1992, A.G. Op. #92-0901.

Editor’s Notes —

Former §13-5-13 specified the number of names to be contained on the jury list.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d(Rev), Jury §§ 105, 113, 130, 163, 262, 263, 296.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selection, drawing, and summoning of jurors).

CJS.

50 C.J.S., Juries §§ 289, 308, 324, 328, 329, 333, 335, 336, 417.

Editor’s Notes —

Former §13-5-15 provided that the jury list be delivered to the clerk of the circuit court, filed, and not thereafter altered.

Cross References —

Application of this section to selection of jurors for state grand jury, see §13-7-15.

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Jury §§ 104, 105, 110, 123, 226, 227, 251.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selection, drawing, and summoning of jurors).

CJS.

50 C.J.S., Juries §§ 308, 324, 328, 329, 333, 335, 336, 417.

JUDICIAL DECISIONS

1. In general.

In a homicide prosecution, the trial judge correctly overruled a defense motion to quash the indictment, venire and panel on the ground that blacks and women were systematically excluded from serving as grand jury foremen, where Mississippi followed the “random” method of jury selection and where the evidence was insufficient to establish a prima facie case of discrimination in the selection of jury foremen by trial judges. Herring v. State, 374 So. 2d 784, 1979 Miss. LEXIS 2347 (Miss. 1979).

Editor’s Notes —

Former §13-5-17 provided that the slips containing the names of the jurors not serving were to be returned to the box.

Editor’s Notes —

Former §13-5-19 provided for the making and keeping of a list of jurors who did not serve.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

JUDICIAL DECISIONS

1. In general.

2. Jury selection.

1. In general.

In defendant’s trial for wire fraud, the trial court properly ordered the circuit court clerk to draw the jury from both judicial districts within the county in order to expand the jury pool, and to be certain that a fair and impartial jury as nearly as possible, could be impaneled; there was no prejudice to defendant as a result. McGee v. State, 853 So. 2d 125, 2003 Miss. App. LEXIS 159 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 834 (Miss. Ct. App. 2003).

Trial court did not abuse its discretion under Miss. Code Ann.§13-5-21 in empanelling a jury to try defendant for aggravated driving while intoxicated where the jury panel consisted of jurors who resided in different judicial districts within the same county. Gates v. State, 829 So. 2d 1283, 2002 Miss. App. LEXIS 591 (Miss. Ct. App. 2002).

Defendant in a murder trial failed to show that a jury selection method of drawing juries from two judicial districts did not result in a fair cross-section of the community. Thomas v. State, 818 So. 2d 335, 2002 Miss. LEXIS 130 (Miss. 2002).

Trial court’s decision to draw jury venire from both judicial districts, rather than just a jury venire from the district where the burglary victims were likely less well known, was not error as the record did not show that the jury selection process was fraudulent, unfair, or deprived defendant of due process. Cunningham v. State, 828 So. 2d 208, 2002 Miss. App. LEXIS 11 (Miss. Ct. App. 2002).

Fact that special venire in transferee county was drawn randomly from county as a whole, rather than alternately from each of county’s two judicial districts as required by statute, did not amount to reversible error in murder prosecution, as defendant failed to demonstrate any prejudice resulting from noncompliance with statute and failed to demonstrate that jury was not chosen from fair cross-section of community. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Statutory method of selecting jurors in criminal prosecution is directory, not mandatory, and unless it is shown that method used was fraudulent or such radical departure from method prescribed by the statute as to be unfair to defendant or to prevent due process of law, appellate court will not reverse. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

A murder defendant did not establish that the trial judge abused his discretion by refusing the defendant’s request to draw venire members from both of the county’s judicial districts where the defendant did not offer evidence indicating that the jury selected was biased or partial. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

Under this section, trial court may require juror to serve out of his district (1) in its discretion and (2) when such juror is drawn on special venire; special venire may be drawn from both districts of county, in discretion of trial judge. Myers v. State, 353 So. 2d 1364, 1978 Miss. LEXIS 2068 (Miss. 1978).

In homicide prosecution, where court ordered special venire from first district of county, refusal to order one from second district held not error, statute being directory. Taylor v. State, 148 Miss. 621, 114 So. 390, 1927 Miss. LEXIS 48 (Miss. 1927).

This section [Code 1942, § 1770] is directory. Haney v. State, 129 Miss. 486, 92 So. 627, 1922 Miss. LEXIS 68 (Miss. 1922); Taylor v. State, 148 Miss. 621, 114 So. 390, 1927 Miss. LEXIS 48 (Miss. 1927).

In a county having two circuit court districts the venire may be drawn from both districts of the county, but where one jury box is exhausted it is not reversible error for the trial court to draw all names from the other district. Ferguson v. State, 107 Miss. 559, 65 So. 584, 1914 Miss. LEXIS 118 (Miss. 1914).

This section [Code 1942, § 1770] applies to Perry county notwithstanding the Act March 6, 1892 (Acts 1892 ch. 116) dividing it into two judicial districts and providing that no person shall be liable to jury service outside the district in which he lives. Burt v. State, 86 Miss. 280, 38 So. 233, 1905 Miss. LEXIS 17 (Miss. 1905).

2. Jury selection.

Where defendant failed to show that the under-representation of a racial group on his jury was based on a systematic exclusion in selection of the jury venire, defendant was not denied a jury that was a fair cross-section of the community. Pratt v. State, 870 So. 2d 1241, 2004 Miss. App. LEXIS 273 (Miss. Ct. App. 2004).

Joint Legislative Committee Note —

Section 1 of ch. 437 Laws of 2006, effective from and after passage (approved March 20, 2006), amended this section. Section 10 of ch. 520, Laws of 2006, effective from and after passage (approved April 3, 2006), also amended this section. As set out above, this section reflects the language of Section 10 of ch. 520, Laws of 2006, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Amendment Notes —

The 2004 amendment, effective January 1, 2007, rewrote the section.

The first 2006 amendment (ch. 437), in the version of the section effective until January 1, 2008, substituted “Until January 1, 2008” for “Until January 1, 2007” in the bracketed effective date language, and substituted “paragraph” or “paragraphs” for “clause” or “clauses” throughout; and in the version of the section effective from and after January 1, 2008, substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

The second 2006 amendment (ch. 520), in the version effective until January 1, 2008, substituted “Until January 1, 2008” for “Until January 1, 2007” in the bracketed effective date language, substituted “paragraphs or paragraph” for “clauses or clause” throughout, added (d), inserted “and (d)” following “under paragraphs (c)” near the end of the second undesignated paragraph, and made minor stylistic changes; and in the version effective from and after January 1, 2008, substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language, added (1)(c); added (3)(f), and made minor stylistic changes throughout.

The 2007 amendment, in the version effective from and after January 1, 2008, in (3)(e), substituted “may be required” for “shall be required” and “may result in a denial” for “shall result in a denial”; in (4), deleted “After two (2) years” from the beginning, and added the last sentence; and deleted the former first sentence of (5), which read: “A tales juror shall not be compelled to serve two (2) days successively unless the case in which the juror is impaneled continues longer than one (1) day.”

Cross References —

Exemption from jury duty as personal privilege, see §13-5-25.

Exemption of officers and employees of the state penitentiary from jury duty, see §47-5-55.

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

Since no state or federal statute requires private employer to pay wages or salary to employee serving on grand or petit jury, and who is therefore not working in employer’s business during this time, simple refusal of employer to pay employee under these circumstances would not constitute violation of Miss. Code Section 13-5-23. Pacific, Apr. 7, 1993, A.G. Op. #93-0112.

RESEARCH REFERENCES

ALR.

Power of grand jury after term of court for which organized. 75 A.L.R.2d 544.

Religious belief as ground for exemption or excuse from jury service. 2 A.L.R.3d 1392.

Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case, as ground of complaint by accused. 99 A.L.R.3d 1261.

Impeachment of verdict by juror’s evidence that he was coerced or intimidated by fellow juror. 39 A.L.R.4th 800.

Jury: who is lawyer or attorney disqualified or exempt from service, or subject to challenge for cause. 57 A.L.R.4th 1260.

Am. Jur.

38 Am. Jur. 2d (Rev), Grand Jury §§ 9, 12.

47 Am. Jur. 2d (Rev), Jury §§ 160.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Form 131 (order excusing juror).

CJS.

38A C.J.S., Grand Juries § 36.

50 C.J.S., Juries §§ 285, 286, 302-305.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 6:14.

JUDICIAL DECISIONS

1. In general.

Trial court did not abuse its discretion in denying a doctor’s motion to quash the jury panel—when the doctor contended that the doctor was denied a fair trial in a medical malpractice action because the doctor, who was Caucasian, had an all-African-American venire in a county that was 25 percent Caucasian—because the appellate court found no evidence showing any actual fraud, prejudice, or such a flagrant violation of duty as to amount to fraud. Kronfol v. Johnson, — So.3d —, 2019 Miss. App. LEXIS 183 (Miss. Ct. App. Apr. 30, 2019).

Although defendant argued that the trial court committed reversible error by excusing two potential jurors because they had served on a jury in the past two years, rather than permitting those jurors the discretion to decide whether or not to serve, procedural bar aside, the error was harmless because defendant did not claim any constitutional violation or that he was in any manner prejudiced by the dismissal of the potential jurors. Gause v. State, 65 So.3d 295, 2011 Miss. LEXIS 314 (Miss. 2011), limited, Hall v. State, 127 So.3d 202, 2013 Miss. LEXIS 649 (Miss. 2013).

A trial court’s excusal of a potential juror on hardship grounds was not an abuse of discretion where the juror had 4 children at home with no one to care for them. Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Non-compliance with §13-5-23, on exemption of jurors, does not warrant quashing of venire unless there is showing of actual fraud, prejudice, or such flagrant violation of duty as to amount to fraud. Pulliam v. State, 515 So. 2d 945, 1987 Miss. LEXIS 2895 (Miss. 1987).

The exemptions from jury duty set forth in this section [Code 1942, § 1764] are not unreasonable or discriminatory, and a defendant, indicted and tried for murder, was not thereby prejudiced in his right to a fair trial. Capler v. State, 237 So. 2d 445, 1970 Miss. LEXIS 1509 (Miss. 1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1910 (U.S. 1972).

The trial court did not commit reversible error in overruling defendant’s motion for a mistrial, or that a new panel of jurors be tendered to him, where, after ten jurors had been finally accepted to try the defendant for murder, the court, out of the presence of defendant or his counsel, excused a juror because illness required the juror’s presence at home, but allowed the defendant one additional peremptory challenge. Upshaw v. State, 231 Miss. 158, 94 So. 2d 337, 1957 Miss. LEXIS 500 (Miss. 1957).

While it is obvious that there may be circumstances, making strict compliance with this section [Code 1942, § 1764] impossible as regards presenting excuses from jury service, the trial judge is under a duty to require compliance therewith except where it is impracticable to do so. Parker v. State, 201 Miss. 579, 29 So. 2d 910, 1947 Miss. LEXIS 423 (Miss. 1947).

As regards the matter of presenting excuses from jury service, the rule is that it is not enough to warrant the court in quashing the venire that the trial judge has violated or failed to do his duty in this regard, but, to so warrant, the evidence and circumstances must show actual fraud or such flagrant violation of duty in this respect as that the proven facts and circumstances show a legal fraud on the rights of the defendant. Parker v. State, 201 Miss. 579, 29 So. 2d 910, 1947 Miss. LEXIS 423 (Miss. 1947).

In the absence of a showing of fraud on the rights of the accused in a criminal case, it was not reversible error for the trial court to excuse from jury service, for good cause, before the case was called for trial and in chambers without notice to the accused, 26 of the 74 persons who appeared in response to an order for a special venire of 90 persons. Parker v. State, 201 Miss. 579, 29 So. 2d 910, 1947 Miss. LEXIS 423 (Miss. 1947).

Indictment for murder held not void because grand juror allegedly served as both election commissioner and grand juror. Robinson v. State, 178 Miss. 568, 173 So. 451, 1937 Miss. LEXIS 228 (Miss. 1937).

Amendment Notes —

The 2004 amendment, effective January 1, 2007, deleted “but the latter class shall serve as talesmen, and on special venire, and on the regular panel, if there be a deficiency of jurors” at the end of the first sentence.

The 2006 amendment, in the version of the section effective until January 1, 2008, substituted “Until January 1, 2008” for “Until January 1, 2007” in the bracketed effective date language; and in the version of the section effective from and after January 1, 2008, substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

The 2007 amendment, in the version effective from and after January 1, 2008, rewrote the first sentence of the first paragraph and rewrote the second paragraph.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d (Rev), Grand Jury §§ 9, 12.

47 Am. Jur. 2d (Rev, Jury §§ 160-163.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Form 131 (order excusing juror).

CJS.

38A C.J.S., Grand Juries § 36.

50 C.J.S., Juries §§ 285, 286, 302-305.

Law Reviews.

1989 Mississippi Supreme Court Review: Challenge to Jury. 59 Miss. L. J. 868, Winter, 1989.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 6:14.

JUDICIAL DECISIONS

1. In general.

2. Harmless error.

3. Illustrative cases.

1. In general.

The exemptions under Miss. Code Ann. §13-5-25 are not mandatory and must be asserted by the individual. Trevillion v. State, 26 So.3d 1098, 2009 Miss. App. LEXIS 828 (Miss. Ct. App. 2009).

Although a trial court erred in removing a potential juror, defendant failed to object at trial; therefore, he was procedurally barred from arguing the error at trial. Moreover, the error was harmless. Spires v. State., 10 So.3d 477, 2009 Miss. LEXIS 260 (Miss. 2009).

The exemption contemplated by this section does not apply to service within a designated venire period. Galloway v. State, 735 So. 2d 1117, 1999 Miss. App. LEXIS 158 (Miss. Ct. App. 1999).

Transfer of venue to another county for trial proceedings did not deprive defendant in murder prosecution of his right to be tried by jury chosen from fair cross-section of community including senior citizens, despite defendant’s contention that moving jurors to the other county made elderly persons more inclined to exercise their statutory exemption from jury service; defendant failed to present any evidence indicating that jury lists were not representative of community. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Mississippi’s exemption of jurors who are illiterate or under 21 years of age, pursuant to §13-5-1, or over 65 years of age, pursuant to §13-5-25, did not violate the defendant’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

Although persons over 65 years of age and persons who have served on a jury within 2 years are exempt from jury service under §13-5-25, neither the circuit court nor the deputy circuit clerk have authority to act unilaterally and strike such persons from the jury list. Such persons are eligible for jury service and have every lawful right and authority to serve if called and selected. When their names are drawn, such persons must be summoned the same as other prospective jurors and no one has authority to exempt any such juror from service unless he or she claims the privilege and asks to be excused. Thus, a judgment of conviction and sentence was reversed where the deputy circuit clerk unilaterally struck from the jury list all persons over 65 years of age and all persons who had served on a jury within the 2 preceding years. Adams v. State, 537 So. 2d 891, 1989 Miss. LEXIS 28 (Miss. 1989).

It was not error to excuse veniremen who had served as petit jurors a few weeks prior to the trial. Brown v. State, 38 So. 316 (Miss. 1905).

2. Harmless error.

Although defendant argued that the trial court committed reversible error by excusing two potential jurors because they had served on a jury in the past two years, rather than permitting those jurors the discretion to decide whether or not to serve, procedural bar aside, the error was harmless because defendant did not claim any constitutional violation or that he was in any manner prejudiced by the dismissal of the potential jurors. Gause v. State, 65 So.3d 295, 2011 Miss. LEXIS 314 (Miss. 2011), limited, Hall v. State, 127 So.3d 202, 2013 Miss. LEXIS 649 (Miss. 2013).

Although the trial court erred by informing two potential jurors that he was required to dismiss them because they had previously served on a jury in the last two years, the error was harmless, and defendant had not preserved his challenge for appellate review since there had not been a contemporaneous objection to the error. Trevillion v. State, 26 So.3d 1098, 2009 Miss. App. LEXIS 828 (Miss. Ct. App. 2009).

3. Illustrative cases.

Errors relating to the jury selection process were forfeited on appeal due to a failure to object contemporaneously below; at any rate, the outcome would have been the same because, while the trial court erred in appointing a foreperson, the trial court either did not commit error or cured other errors. Personal privilege exemptions had to be asserted by the individual, jurors who sat on a jury in the last 2 years could have been required to serve due to a lack of potential jurors, an error relating to a failure to complete the jury questionnaire was corrected during direct questioning at voir dire, and a juror’s answer to a question about prior convictions fulfilled the statutory requirements. Hall v. State, — So.3d —, 2016 Miss. LEXIS 125 (Miss. Mar. 17, 2016).

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 8, 13, 19, 21.

47 Am. Jur. 2d Jury §§ 104, 105, 110, 123, 143, 165, 226, 227.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selection, drawing, and summoning of jurors).

CJS.

38A C.J.S., Grand Juries §§ 6, 7, 38-41, 43, 44.

50 C.J.S., Juries §§ 308, 309, 311-313, 324, 328, 329, 333, 335, 336.

JUDICIAL DECISIONS

1. In general.

2. No deficiency in jury selection.

1. In general.

Trial judge’s questioning of circuit clerk established that clerk had complied, or substantially complied, with statute with respect to random selection of jurors to try defendant charged with attempting to obtain controlled substance by misrepresentation or fraud. Griffin v. State, 494 So. 2d 376, 1986 Miss. LEXIS 2651 (Miss. 1986).

2. No deficiency in jury selection.

Trial court properly denied defendant’s motion to quash a venire because defendant did not show that the exclusion of persons with surnames beginning with “T-Z,” which was due to an algorithm used by the county’s computer system, disproportionally affected any distinctive group in the county; defendant alleged no prejudice resulting from the trial court’s noncompliance with the statute, and failed to show that persons whose surnames began with “A” through “S” did not represent a fair cross-section of the community. Presley v. State, 9 So.3d 442, 2009 Miss. App. LEXIS 213 (Miss. Ct. App. 2009).

Under Miss. Code Ann. §13-5-26, the circuit court did not violate method of drawing and summoning jury where defendant did not allege that any deficiency in jury selection resulted in prejudice to his case or that the nine jurors were not qualified to serve. Havard v. State, 986 So. 2d 333, 2007 Miss. App. LEXIS 756 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 557 (Miss. 2008).

Editor’s Notes —

Former §13-5-27 provided for the drawing of grand and petit jurors in open court.

Amendment Notes —

The 2004 amendment, effective January 1, 2007, added the second sentence.

The 2006 amendment, in the version of the section effective until January 1, 2008, substituted “Until January 1, 2008” for “Until January 1, 2007” in the bracketed effective date language; and in the version of the section effective from and after January 1, 2008, substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

The 2007 amendment, in the first sentence of both versions, inserted “the juror” following “addressed to” and “requiring,” and inserted “the juror’s” preceding “usual residence.”

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

OPINIONS OF THE ATTORNEY GENERAL

When a jury is needed in justice court, the justice court clerk must notify the circuit clerk of the number of jurors to be summoned and the circuit clerk must draw the jury pool and issue summonses to those jurors. Section 13-5-28 allows the circuit clerk to serve the summonses either personally or by mail. Wilson, November 15, 1996, A.G. Op. #96-0792.

Editor’s Notes —

Former §13-5-29 provided for the envelopes containing slips with jurors’ names to be opened and venire facias to be issued.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 22.

47 Am. Jur. 2d, Jury §§ 122, 123, 188.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selection, drawing, and summoning of jurors).

CJS.

38A C.J.S., Grand Juries §§ 46-49.

50 C.J.S., Juries §§ 317-319, 326, 331.

Editor’s Notes —

Former §13-5-31 pertained to the drawing of jurors in vacation term.

RESEARCH REFERENCES

CJS.

50 C.J.S., Juries §§ 307, 308, 315.

JUDICIAL DECISIONS

1. In general.

Trial court did not improperly sequester the names of the jurors in defendant’s trial for tax evasion. The judge decided in the case at bar to keep the jurors’ names secret based on events from defendant’s previous prosecution; moreover, defendant failed to properly brief this issue. King v. State, 897 So. 2d 981, 2004 Miss. App. LEXIS 689 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 224 (Miss. 2005).

Because defendant adopted son failed to show that sealing of the venire panel list pursuant to Miss. Code Ann. §13-5-32 without notice or opportunity for a hearing prejudiced him in any way, the error was not a basis for reversal. King v. State, 857 So. 2d 702, 2003 Miss. LEXIS 450 (Miss. 2003).

Before a trial judge makes a determination not to make a jury list available to litigants or trial attorneys whose clients will have a cause for trial, he should cause the record clearly to demonstrate good and sufficient reason “in the interest of justice” as the section provides. Before making his determination to keep confidential or secret the names of the jurors drawn from the jury box, the litigants or counsel should have notice that such action is being considered by the trial judge; then the court should make its decision only after a hearing is accorded the defendant on the issue. Valentine v. State, 396 So. 2d 15, 1981 Miss. LEXIS 1977 (Miss. 1981).

Editor’s Notes —

A former §13-5-33 [Codes, 1892, § 2368; 1906, § 2697; Hemingway’s 1917, § 2190; 1930, § 2043; 1942, § 1776; Repealed by Laws, 1974, ch. 378, § 11, eff from and after Jan. 1, 1975] provided for the coroner or justice of the peace to perform the duties of the chancery clerk in relation to juries when the same person holds both clerks’ offices, and for the performance of such duties in case of absence or illness of a clerk or sheriff.

Laws of 2004, 1st Ex Sess, ch. 1, § 20 provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007.” Laws of 2006, ch. 437, § 4, extended the effective date of this section until January 1, 2008.”

Amendment Notes —

The 2006 amendment substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

Amendment Notes —

The 2004 amendment, effective January 1, 2007, rewrote the section.

The 2006 amendment, in the version of the section effective until January 1, 2008, substituted “Until January 1, 2008” for “Until January 1, 2007” in the bracketed effective date language; and in the version of the section effective from and after January 1, 2008, substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

The 2007 amendment made a minor stylistic change in the version effective until January 1, 2008; and in the version effective from and after January 1, 2008, substituted “may be ordered” for “shall be ordered” and “the juror may be held in civil contempt” for “he is in civil contempt,” and made gender neutral and minor stylistic changes.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Jury §§ 95-98.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Form 122 (order for defaulting juror to show cause).

CJS.

50 C.J.S., Juries §§ 345, 346.

Editor's Notes —

Laws of 2004, 1st Ex Sess, ch. 1, § 20 provides:

“SECTION 20. Sections 8 through 15 of this act shall take effect and be in force from and after January 1, 2007.” Laws, 2006, ch. 437, § 6, extended the effective date of this section until January 1, 2008.

A former §13-5-35 [Codes, Hutchinson's 1848, ch. 61, art. 8 (5); 1857, ch. 61, art. 140; 1871, § 741; 1880, § 1692; 1892, § 2369; 1906, § 2698; Hemingway's 1917, § 2191; 1930, § 2044; 1942, § 1777; Repealed by Laws, 1974, ch. 378, § 11, eff from and after Jan. 1, 1975] provided for the summoning of jurors and penalties for failure of a juror to attend.

The reference to “ Section 13-5-24” in subsection (4) of this section is incorrect and should probably be to “ Section 13-5-33.” The section is set out above as it was amended by Section 6 of Chapter 437, Laws of 2006. The Joint Legislative Committee on Compilation, Revision and Publication of Legislation will correct the error during its 2019 meeting.

Amendment Notes —

The 2006 amendment substituted “From and after January 1, 2008” for “From and after January 1, 2007” in the bracketed effective date language.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

Editor’s Notes —

Former §13-5-37 provided for a fine and contempt of court for officials who failed to perform specified duties pertaining to juries.

Editor’s Notes —

Sections 13-5-27, 13-5-29, 13-5-31 and 13-5-37 referred to in the paragraph were repealed by Laws, 1974, ch. 378, § 11, effective from and after Jan. 1, 1975.

Cross References —

Selection and service of jurors, see Miss. R. Civ. P. 47.

RESEARCH REFERENCES

ALR.

Power of grand jury after term of court for which organized. 75 A.L.R.2d 544.

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 15.

CJS.

38A C.J.S., Grand Juries §§ 76-79.

JUDICIAL DECISIONS

1. In general.

Post-conviction relief was denied in a case where defendant entered a guilty plea to the crime of the sale of cocaine because an indictment was not void due to the fact that it was returned during a July term, but filed during a November term, since this was not prohibited under Miss. Code Ann. §13-5-39; the grand jury continued to serve from term to term until the next grand jury was impaneled, and it was allowed to return indictments at any term of court. Belton v. State, 968 So. 2d 501, 2007 Miss. App. LEXIS 179 (Miss. Ct. App.), cert. denied, 968 So. 2d 948, 2007 Miss. LEXIS 643 (Miss. 2007).

An indictment returned by grand jury impaneled in April and reconvened in September after an intervening term of court in July was not void since the statute fixing court terms in the county, §9-7-49, specifically provided that a grand jury should be impaneled at the April and October terms but left the question of impaneling for the January and July terms discretionary with the judge. J. B. Womack Constr. Co. v. Laws Constr. Co., 330 So. 2d 602, 1976 Miss. LEXIS 1867 (Miss. 1976).

Amendment Notes —

The 2013 amendment substituted “twenty-five (25)” for “twenty (20).”

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 17.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Forms 91-112 (selecting, drawing, and summoning of jurors).

CJS.

38A C.J.S., Grand Juries §§ 53-55.

JUDICIAL DECISIONS

1. In general.

Even if the appellate court assumed the person that sat on the grand jury was the same person that sat on the petit jury, it was unable to determine whether that person took part in the grand jury deliberations incident to the indictment against defendant. Havard v. State, 986 So. 2d 333, 2007 Miss. App. LEXIS 756 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 557 (Miss. 2008).

Where ground of motion to quash indictment in murder prosecution “for defects and irregularities in the drawing, summoning, impaneling and organization of the grand jury” was too broad, the supreme court would assume, to the advantage of defendant, that the basis was made particular by the introduction of testimony purporting to relate to the method of summoning and impaneling the grand jury. Gipson v. State, 203 Miss. 434, 35 So. 2d 327, 1948 Miss. LEXIS 289 (Miss. 1948).

The trial judge cannot lawfully draw out and select only such names from the box as he desires in the formation of a grand jury and on proper objection to such grand jury an indictment found by them will be quashed. Sheppard v. State, 89 Miss. 147, 42 So. 544, 1906 Miss. LEXIS 54 (Miss. 1906).

Where a grand jury of sixteen men was determined on by the court and after the impaneling of such a jury two of them were excused, the court was authorized to cause the number of jurymen to be increased to any number not exceeding twenty. Posey v. State, 86 Miss. 141, 38 So. 324, 1905 Miss. LEXIS 35 (Miss. 1905).

RESEARCH REFERENCES

ALR.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 9-12, 18.

12 Am. Jur. Pl & Pr Forms (Rev), Grand Jury, Form 2 (challenge to array of grand jury).

CJS.

38A C.J.S., Grand Juries §§ 11, 22-35.

JUDICIAL DECISIONS

1. In general.

2. Swearing the jurors.

3. Time for objections.

4. Irregularities cured by statute.

5. Irregularities not cured by statute.

6. Challenge or exception to array.

7. Validity of indictments.

8. Impeachment of indictment by juror.

1. In general.

Supreme Court must indulge presumption that grand jury is composed of persons who have reasonable degree of intelligence and would perform their duties in accordance with law and evidence before them. State v. Pacific (Ex parte Jones County Grand Jury, First Judicial Dist.), 705 So. 2d 1308, 1997 Miss. LEXIS 747 (Miss. 1997).

Petitioner’s allegation in an application for writ of habeas corpus that his conviction constituted a deprivation of his liberty without due process of law in violation of the Fourteenth Amendment of the United States Constitution because of the systematic exclusion of members of his race from the lists from which grand and petit juries were selected in the county where he was indicted and convicted, and because of his ignorance and circumstances of his arrest and incarceration, and as a consequence of the law of Mississippi he was not able to challenge the competency of the grand jury, together with a showing of the speed in which the petitioner was tried following his indictment, were sufficient to entitle the petitioner to a hearing on the question of whether he had adequately safeguarded his constitutional rights during his trial for murder. United States ex rel. Goldsby v. Harpole, 249 F.2d 417, 1957 U.S. App. LEXIS 4002 (5th Cir. Miss. 1957).

Grand jury which returned indictment is not shown to be illegal on hearing on motion for new trial after conviction of felonious assault by cutting with knife when circuit clerk merely stated that all jurors were white men, and it was neither shown nor intimated that there were no names of Negroes in jury box out of which grand and petit jury were drawn, but it did appear that jury boxes were practically exhausted after these juries had been drawn, it being common knowledge that number of Negroes who register and qualify for jury service are almost nominal in comparison with number of white persons who do so. Ferrell v. State, 208 Miss. 539, 45 So. 2d 127, 1950 Miss. LEXIS 272 (Miss. 1950).

It is duty of circuit and chancery clerks, board of supervisors and sheriff to comply strictly with all of requirements of statutes in manner of listing, drawing and selecting jurors, compiling jury lists, and summoning and impaneling juries, but since statutes on the subject are merely directory, judgment will not be reversed where there was no radical departure from statutory scheme of selecting and impaneling jury and jury selected was fair and impartial. Lott v. State, 204 Miss. 610, 37 So. 2d 782, 1948 Miss. LEXIS 394 (Miss. 1948).

On motion to quash jury list from which grand and petit juries were to be chosen, for alleged reason that board of supervisors had not selected names of jurors in manner required by law governing selection of qualified electors, placing names in jury box, and subsequent drawing of juries, it is competent to show by testimony of chancery and circuit clerks manner in which statutory requirements were complied with. Lott v. State, 204 Miss. 610, 37 So. 2d 782, 1948 Miss. LEXIS 394 (Miss. 1948).

The strict language of this section [Code 1942, § 1784], that the impaneling of the grand jury shall be conclusive evidence of its competence and qualification, permits of no exception. Reynolds v. State, 199 Miss. 409, 24 So. 2d 781, 1946 Miss. LEXIS 211 (Miss. 1946).

Unless the contrary appear from the record, the presumption is that the grand jury was legally organized. Chase v. State, 46 Miss. 683, 1872 Miss. LEXIS 39 (Miss. 1872).

This statute completely cuts off the plea in abatement challenging the fitness and qualifications of the grand jury or of any of its members. Head v. State, 44 Miss. 731, 1871 Miss. LEXIS 34 (Miss. 1871), overruled, Smith v. State, 58 Miss. 867, 1881 Miss. LEXIS 55 (Miss. 1881), overruled, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985); Durrah v. State, 44 Miss. 789, 1871 Miss. LEXIS 38 (Miss. 1871).

2. Swearing the jurors.

A defendant may, in the discretion of the court, after a plea of not guilty, move to quash the indictment on the ground that the record failed to show that the grand jury was sworn. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

A motion in an arrest of judgment should be overruled where based on objection that grand jury was not sworn in the absence of a record to the contrary. Hays v. State, 96 Miss. 153, 50 So. 557, 1909 Miss. LEXIS 30 (Miss. 1909).

3. Time for objections.

Defendant argued, on appeal, that his indictment on two counts of aggravated assault and possession of a firearm by a felon should have been dismissed because the alleged victim’s brother-in-law sat on the grand jury that indicted defendant; however, defendant failed to submit this issue to the trial court, either in a motion to dismiss, or in defendant’s motion for J.N.O.V. Townsend v. State, 939 So. 2d 796, 2006 Miss. LEXIS 552 (Miss. 2006).

Where the accused had been in jail during the session of the grand jury throughout the previous week, the court-appointed defense counsel resided in the county seat of the county where the rape indictment was returned, and it was not claimed that no opportunity was afforded to the defense for the making of a motion to quash the indictment at the time required by this section [Code 1942, § 1784], a later motion to quash indictment was properly overruled. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

It is matter of state procedure as to when objections to indictment shall be raised to avoid expense and delay where no right of accused under federal Constitution is involved. Flowers v. State, 209 Miss. 86, 41 So. 2d 352, 1949 Miss. LEXIS 473 (Miss. 1949), cert. denied, 339 U.S. 946, 70 S. Ct. 800, 94 L. Ed. 1360, 1950 U.S. LEXIS 2045 (U.S. 1950).

Manner in which lists of jurors are selected by board of supervisors and placed in jury box involves solely question of state procedure and trial court is not in error in overruling motion to quash indictment on that ground when objections to qualification of grand jurors is not made before they are impaneled and defendant was at time represented by able lawyer and had reason to believe his case would be investigated by grand jury and he could have obtained information as to venire from which grand jury would be drawn. Flowers v. State, 209 Miss. 86, 41 So. 2d 352, 1949 Miss. LEXIS 473 (Miss. 1949), cert. denied, 339 U.S. 946, 70 S. Ct. 800, 94 L. Ed. 1360, 1950 U.S. LEXIS 2045 (U.S. 1950).

This section [Code 1942, § 1784], requires that objections to qualifications of grand jurors be made, if at all, before they are impaneled, unless accused has been denied opportunity for doing so, and objection cannot be raised afterward. Flowers v. State, 209 Miss. 86, 41 So. 2d 352, 1949 Miss. LEXIS 473 (Miss. 1949), cert. denied, 339 U.S. 946, 70 S. Ct. 800, 94 L. Ed. 1360, 1950 U.S. LEXIS 2045 (U.S. 1950); Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958); Gordon v. State, 160 So. 2d 73 (Miss. 1964).

Motion to quash jury list from which grand jury was chosen, made by defendant after indictment by grand jury, but before arraignment, is made too late as strict language of this section [Code 1942, § 1784] that impaneling of grand jury shall be conclusive evidence of its competence and qualifications admits of no exceptions. Lott v. State, 204 Miss. 610, 37 So. 2d 782, 1948 Miss. LEXIS 394 (Miss. 1948).

It is too late to make a motion to quash an indictment where objection to the illegal organization of a grand jury had not been made before it was impaneled. State v. Forbes, 134 Miss. 425, 98 So. 844, 1924 Miss. LEXIS 267 (Miss. 1924).

In a motion to quash an indictment on a right claimed under the United States Constitution, the state court is bound by decisions of the United States court and the objection may be taken by plea in abatement or motion to quash before a plea of not guilty is entered. Hill v. State, 89 Miss. 23, 42 So. 380, 1906 Miss. LEXIS 42 (Miss. 1906).

Under this section [Code 1942, § 1784] challenges to grand jurors for disqualifications must be submitted before the grand jury is impaneled, regardless of whether the disqualification arises from bias or personal incompetency. Cain v. State, 86 Miss. 505, 38 So. 227, 1905 Miss. LEXIS 14 (Miss. 1905).

The statute applies to the case of a defendant who was not advised that his case was to come before the grand jury for investigation and precludes him from raising any question as to the competency of any one or more grand jurors by motion to quash the indictment. Cain v. State, 86 Miss. 505, 38 So. 227, 1905 Miss. LEXIS 14 (Miss. 1905).

This section [Code 1942, § 1784] requires that objections to the qualifications of grand jurors must be made, if at all, before they are impaneled, and they cannot be raised afterward. Dixon v. State, 74 Miss. 271, 20 So. 839, 1896 Miss. LEXIS 110 (Miss. 1896).

4. Irregularities cured by statute.

After the impaneling of a grand jury, certain members having been excused, the court directed that certain bystanders serve as grand jurors, though such persons were not among those listed by the supervisors for jury service, and though their names were not on the venire drawn for service during that term, defendant made no direct challenge and took no exception at the time. In the absence of any showing that the grand jury was not fair and impartial, there was no ground for reversal of a conviction on an indictment found by it. Posey v. State, 86 Miss. 141, 38 So. 324, 1905 Miss. LEXIS 35 (Miss. 1905).

In the absence of evidence that a grand jury was unfair and of an objection at the time, the court may select grand jurors from bystanders. Posey v. State, 86 Miss. 141, 38 So. 324, 1905 Miss. LEXIS 35 (Miss. 1905).

5. Irregularities not cured by statute.

The trial judge should not select a jury from slips with jurors’ names thereon turned up where he ignores the names of those he does not wish to serve and exceptions to his actions should be sustained and his error is not cured by the statute. Sheppard v. State, 89 Miss. 147, 42 So. 544, 1906 Miss. LEXIS 54 (Miss. 1906).

6. Challenge or exception to array.

Even though grand jury was improperly selected, once it had been impaneled defendant could not thereafter challenge its competency or qualifications except as to a challenge to the array for fraud, and consequently where there was no such challenge, motion to quash indictment after jury had been impaneled was properly overruled. Reynolds v. State, 199 Miss. 409, 24 So. 2d 781, 1946 Miss. LEXIS 211 (Miss. 1946).

An objection to the grand jury as a body, on the ground that the sheriff, whom defendant was charged with assaulting, assisted in the drawing of the jury, could not be made by motion to quash indictment but only by a challenge to the array for fraud. Long v. State, 133 Miss. 33, 96 So. 740, 1923 Miss. LEXIS 108 (Miss. 1923).

7. Validity of indictments.

An indictment charging the defendant with the crimes of perjury and conspiracy to commit perjury would not be quashed based upon the fact that the same grand jurors who heard the defendant testify, and were therefore witnesses to his alleged perjury, were the same grand jurors who returned the indictment against him, even though it would have been the better practice not to have sought the perjury and conspiracy indictments from the same grand jury who heard the alleged perjury, where there was no evidence of any fraud or wrongdoing on the part of the grand jurors. Smallwood v. State, 584 So. 2d 733, 1991 Miss. LEXIS 405 (Miss. 1991).

Where the accused had been in jail during the session of the grand jury throughout the previous week, the court-appointed defense counsel resided in the county seat of the county where the rape indictment was returned, and it was not claimed that no opportunity was afforded to the defense for the making of a motion to quash the indictment at the time required by this section [Code 1942, § 1784], a later motion to quash indictment was properly overruled. Cameron v. State, 233 Miss. 404, 102 So. 2d 355, 1958 Miss. LEXIS 397 (Miss. 1958).

Indictment for murder held not void because grand juror allegedly serves as both election commissioner and grand juror. Robinson v. State, 178 Miss. 568, 173 So. 451, 1937 Miss. LEXIS 228 (Miss. 1937).

A county prosecuting attorney may be present with the grand jury while considering a case and may find a valid indictment while he is present but he must not improperly influence the jury. State v. Coulter, 104 Miss. 764, 61 So. 706, 1913 Miss. LEXIS 84 (Miss. 1913); Le Barron v. State, 107 Miss. 663, 65 So. 648, 1914 Miss. LEXIS 128 (Miss. 1914).

An indictment found when only fourteen grand jurors were present and twelve or more concurred when finding it and was returned into court by the full grand jury of eighteen members was valid. McCoy v. State, 101 Miss. 613, 57 So. 622, 1911 Miss. LEXIS 122 (Miss. 1911).

The foreman of a grand jury has no authority to discharge a member thereof but the court may do so and he should supply the place by selecting another juror. McCoy v. State, 101 Miss. 613, 57 So. 622, 1911 Miss. LEXIS 122 (Miss. 1911).

It is unlawful for the sheriff to be called into the grand jury room to aid in examining a witness and an indictment based on such testimony is invalid. Herrington v. State, 98 Miss. 410, 53 So. 783, 1910 Miss. LEXIS 77 (Miss. 1910).

The minutes of the court must show that the grand jury was sworn, otherwise an indictment found by them is void. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

A plea of not guilty does not waive the right to file a motion to quash a void indictment since permitting such motion is discretionary. Hardy v. State, 96 Miss. 844, 51 So. 460, 1910 Miss. LEXIS 176 (Miss. 1910).

8. Impeachment of indictment by juror.

Grand jurors cannot impeach their indictment by their testimony. Lewis v. State, 132 Miss. 200, 96 So. 169, 1923 Miss. LEXIS 44 (Miss. 1923).

Cross References —

Swearing of state grand jurors pursuant to this section, see §13-7-15.

Foreman and deputy foreman to be sworn pursuant to this section, see §13-7-17.

Grand juror compensation, see §25-7-61.

Rules pertaining to grand juries, see MRCrP 13.1 through 13.7.

OPINIONS OF THE ATTORNEY GENERAL

If a grand juror, including a foreman, is absent, the court shall have the authority to cause another to be sworn in his place. The court, not the District Attorney, is responsible for appointing a “substitute” foreman if necessary, who must be administered the foreman’s oath in open court, in the presence of the rest of the grand jurors. Peterson, March 9, 2007, A.G. Op. #07-00113, 2007 Miss. AG LEXIS 90.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 26.

CJS.

38A C.J.S., Grand Juries §§ 58-64.

JUDICIAL DECISIONS

1. In general.

A trial court did not err in overruling a defendant’s motion to quash the indictment and/or demur to the indictment, even though the minutes of the court did not reflect that a grand jury foreman was appointed or that the foreman was given the oath as required by §13-5-45, where one of the names of the grand jurors was listed on the indictment as the grand jury foreman, the foreman signed the grand jury report and indictment in the slot where the foreman signs, and the foreman’s name was listed along with the other sworn grand jurors, since the statute does not provide that the court minutes must reflect that a grand jury foreman was appointed and sworn. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A defendant’s claim that his indictment for murder was void on the ground that black foremen were systematically not appointed to the grand jury would be rejected where there was no testimony in the record to the effect that failure to select a black grand jury foreman had been intentionally or purposely done and where the crucial period for determining discrimination did not begin until 1975 when the new Jury Selection Act went into effect and there was an insufficient period of time to enable the Court to determine whether there had been constitutionally prohibited discrimination. Johnson v. State, 404 So. 2d 553, 1981 Miss. LEXIS 2234 (Miss. 1981).

In a homicide prosecution, the trial judge correctly overruled a defense motion to quash the indictment, venire and panel on the ground that blacks and women were systematically excluded from serving as grand jury foremen, where Mississippi followed the “random” method of jury selection and where the evidence was insufficient to establish a prima facie case of discrimination in the selection of jury foremen by trial judges. Herring v. State, 374 So. 2d 784, 1979 Miss. LEXIS 2347 (Miss. 1979).

Cross References —

Application of this section to swearing of jurors for state grand jury, see §13-7-15.

Duty of grand jury to inquire into violations of laws relating to wild animals, birds and fish, see §49-5-47.

Duty of grand jury to inquire into condition of county roads, see §65-7-119.

Criminal offense of firing woods or fields of another, see §97-17-13.

Necessity that indictment or presentment be concurred in by twelve grand jurors, see §99-7-11.

Duty of grand jury to inquire into breaches of peace bonds, see §99-23-17.

RESEARCH REFERENCES

ALR.

Modern status of rule regarding necessity of instruction on circumstantial evidence in criminal trial-state cases. 36 A.L.R.4th 1046.

Necessity and content of instructions to jury respecting reasons for or inferences from accused’s absence from state criminal trial. 31 A.L.R.4th 676.

Instructions to jury as to credibility of child’s testimony in criminal case. 32 A.L.R.4th 1196.

Duty of prosecutor to present exculpatory evidence to state grand jury. 49 A.L.R.5th 639.

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 26.

CJS.

38A C.J.S., Grand Juries §§ 85-87.

JUDICIAL DECISIONS

1. In general.

2. Extent of authority to charge.

3. Subpoena.

1. In general.

A circuit judge’s supplemental charge to the grand jury that citizens had reported to the court that the district attorney had “failed to investigate and prosecute” certain crimes and that, if the jurors should “determine that the district attorney has actively disobeyed investigation of these matters,” they were to apply to the court for further instructions singled out the district attorney and his office as targets for grand jury action and should have been expunged for exceeding the judge’s authority which did not extend to denunciation of individuals. Necaise v. Logan, 341 So. 2d 91, 1976 Miss. LEXIS 1492 (Miss. 1976).

One indicted for robbery committed seven months prior thereto is not prejudiced by circuit judge’s charge to grand jury which made indictment that “there has been a series of outbreaks of crime in your community recently. I want you to bring me these indictments by noon today,” as remark did not direct undue attention to any particular single crime.

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Where the defendant charged with selling liquor relies solely on her testimony as her only evidence, jurors to try the same are incompetent who have heard the judge charge the grand jury that “blind tigers” were unworthy of belief and would commit perjury. Johnson v. State, 106 Miss. 598, 64 So. 261, 1913 Miss. LEXIS 167 (Miss. 1913).

It was prejudicial error as against one convicted of unlawfully selling liquor for the court in charging the grand jury relative to such offense to say, “Have you ever heard the name of C. F. [defendant’s name]?” Fuller v. State, 85 Miss. 199, 37 So. 749, 1904 Miss. LEXIS 122 (Miss. 1904).

It is improper for a judge, directly or indirectly, to designate a particular individual as making unlawful sales of intoxicants. If he does and the individual is indicted on seasonable motion the indictment will be quashed. Fuller v. State, 85 Miss. 199, 37 So. 749, 1904 Miss. LEXIS 122 (Miss. 1904).

A conviction for such unlawful sale will be reversed if on overruling an application for a continuance the judge announces, in the presence of jurors, that there has been much complaint about the failure to convict “these criminals” and that the court feared it largely due to continuances. Fuller v. State, 85 Miss. 199, 37 So. 749, 1904 Miss. LEXIS 122 (Miss. 1904).

It is sufficient ground for quashing an indictment under Code 1892 §§ 1120, 1121 (Code 1906 §§ 1201, 1202) that the grand jury sought to be finally discharged without indicting defendant and the court refused to discharge them and instructed them specifically as to the criminal character of defendant’s business, saying that the law was plain and it was of opinion that it had sufficient evidence to find an indictment, that other grand juries had indicted, and that the business in which defendant was engaged was a flagrant violation of the statute. Blau v. State, 82 Miss. 514, 34 So. 153, 1903 Miss. LEXIS 145 (Miss. 1903).

2. Extent of authority to charge.

Grand juries are statutorily charged to investigate possible violations of statutes related to expenditure of county funds by county officials. State v. Pacific (Ex parte Jones County Grand Jury, First Judicial Dist.), 705 So. 2d 1308, 1997 Miss. LEXIS 747 (Miss. 1997).

Judge cannot charge grand jury to investigate and/or indict a particular person and, thus, cannot charge grand jury not to investigate and/or indict a particular person. State v. Pacific (Ex parte Jones County Grand Jury, First Judicial Dist.), 705 So. 2d 1308, 1997 Miss. LEXIS 747 (Miss. 1997).

Trial court did not have authority to enjoin county grand jury from investigating district attorney’s alleged receipt of improper payments. State v. Pacific (Ex parte Jones County Grand Jury, First Judicial Dist.), 705 So. 2d 1308, 1997 Miss. LEXIS 747 (Miss. 1997).

3. Subpoena.

Trial court properly denied a public utility’s motion to quash a grand jury subpoena because issuance of the subpoena was a lawful exercise of the grand jury’s investigative authority, and the evidence was relevant to its investigation and had the potential to result in criminal indictments; when the grand jury seeks information relevant to a legitimate criminal investigation, and that information has the potential to support probable cause to indict, the grand jury should not be hindered. Entergy Miss., Inc. v. State, 132 So.3d 568, 2014 Miss. LEXIS 120 (Miss. 2014).

Editor’s Notes —

Former §13-5-49 required all county officers to attend court, hear the charges of the grand jury, and be charged as to their duties.

OPINIONS OF THE ATTORNEY GENERAL

Based on the Section 13-5-51 and Posey v. State, 38 So. 324 (Miss. 1905), the court, in accordance with the public policy of the state, may fill the vacancies on a grand jury by the same or a similar method or provided by statute for the selection of the original jurors. Landrum, March 29, 1996, A.G. Op. #96-0176.

If a grand juror, including a foreman, is absent, the court shall have the authority to cause another to be sworn in his place. The court, not the District Attorney, is responsible for appointing a “substitute” foreman if necessary, who must be administered the foreman’s oath in open court, in the presence of the rest of the grand jurors. Peterson, March 9, 2007, A.G. Op. #07-00113, 2007 Miss. AG LEXIS 90.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury § 16.

CJS.

38A C.J.S., Grand Juries § 59.

JUDICIAL DECISIONS

1. In general.

After impaneling a grand jury of sixteen and excusing two members thereof the court was authorized to increase the number of grand jurors to eighteen. Posey v. State, 86 Miss. 141, 38 So. 324, 1905 Miss. LEXIS 35 (Miss. 1905).

Cross References —

Keeping of jury fee book by circuit court clerk, see §9-7-131.

Imposition and collection of jury-tax in circuit court, see §9-7-133.

Making and filing of bill of costs generally, see §11-53-65.

RESEARCH REFERENCES

CJS.

38A C.J.S., Grand Juries §§ 80-82, 85.

JUDICIAL DECISIONS

1. In general.

In a prosecution for capital murder an indictment returned by a grand jury was not void on the asserted ground that the grand jury was recalled by the district attorney’s office, where the judge recalled the grand jury initially, where once the grand jury was impanelled or recalled it was in session for the duration of the term or until discharged, and where in the present case the district attorney merely selected the days it would actually meet and was not recalling the grand jury. Oates v. State, 421 So. 2d 1025, 1982 Miss. LEXIS 2267 (Miss. 1982).

The fact that the grand jury was in session at the time defendant was arrested for armed robbery and then adjourned without returning an indictment, has no bearing on the question of the right to release on bail, in absence of proof of any investigation of the case by the grand jury. Wooton v. Bethea, 209 Miss. 374, 47 So. 2d 158, 1950 Miss. LEXIS 401 (Miss. 1950).

A grand jury may be recalled after it is discharged. Bell v. State, 118 Miss. 140, 79 So. 85, 1918 Miss. LEXIS 65 (Miss. 1918); Kyzar v. State, 125 Miss. 79, 87 So. 415, 1921 Miss. LEXIS 95 (Miss. 1921).

Under ch. 253 Laws of 1916 it is mandatory that a circuit judge impanel a grand jury during the first half of each term of court but there is no limitation as to how long it shall continue. Bell v. State, 118 Miss. 140, 79 So. 85, 1918 Miss. LEXIS 65 (Miss. 1918).

Under Code 1906, §§ 2706, 2718, the court may reassemble the grand jury after its discharge when necessary during the same term of the court. Haynes v. State, 93 Miss. 670, 47 So. 522 (Miss. 1908).

Cross References —

Duty of sheriff to furnish prisoners proper necessities, see §§19-25-71,47-1-51.

Criminal offense of maltreating county prisoners, see §47-1-27.

Duty of grand jury to examine records of county prisoners and their treatment and condition, see §47-1-31.

Clothing and food to be furnished county convicts, see §47-1-47.

Hours of labor of county convicts, see §47-1-47.

Furnishing of medical and surgical aid to county prisoners, see §47-1-57.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

OPINIONS OF THE ATTORNEY GENERAL

A sheriff may provide a meal from the county jail at no cost to the members of the grand jury as part of their inspection of the county jail. Caranna, April 21, 2000, A.G. Op. #2000-0207.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 2, 3, 33, 34 et seq.

CJS.

38A C.J.S., Grand Juries §§ 88-99, 100-109.

RESEARCH REFERENCES

ALR.

Validity and construction of statute authorizing grand jury to submit report concerning public servant’s noncriminal misconduct. 63 A.L.R.3d 586.

Am. Jur.

38 Am. Jur. 2d, Grand Jury §§ 2, 3, 33, 34 et seq.

CJS.

38A C.J.S., Grand Juries §§ 88-99, 100-109.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March 1979.

Cross References —

Duty of clerk of board of supervisors to examine accounts, dockets and records of county officers and to report to grand jury, see §19-17-17.

Monthly report of county tax collector of all taxes collected by him during previous month, see §27-29-11.

Report and settlement of county tax collector at end of fiscal year, see §27-29-13.

RESEARCH REFERENCES

CJS.

38A C.J.S., Grand Juries §§ 88-99, 100-109.

Cross References —

Exemption of jury deliberations from provisions of open meetings law, see §25-41-3.

Penalty on grand juror for disclosing facts about indictments, see §97-9-53.

RESEARCH REFERENCES

ALR.

Discovery, in civil proceeding, of records of criminal investigation by state grand jury. 69 A.L.R.4th 298.

What are “matters occurring before the grand jury” within prohibition of Rule 6(e) of the Federal Rules of Criminal Procedure.50 A.L.R. Fed. 675.

What is “judicial proceeding” within Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure permitting disclosure of matters occurring before grand jury when so directed by court preliminarily to or in connection with such proceeding. 52 A.L.R. Fed. 411.

Who are “government personnel” within meaning of Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure to whom matters occurring before grand jury may be disclosed. 54 A.L.R. Fed. 805.

Relief remedy, or sanction for violation of Rule 6(e) of Federal Rules of Criminal Procedure, prohibiting disclosure of matters occurring before grand jury. 73 A.L.R. Fed. 112.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 15:9, 17:15.