Chapter 1. Practice and Procedure Provisions Common to Courts

§ 11-1-1. Before whom oaths may be taken.

A judge of any court of record, clerk of such court, court reporter of such court, master, member of the board of supervisors, justice court judge, notary public, mayor, or police justice of a city, town or village, clerk of a municipality, and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths, the judge of any court of record, or the mayor or chief magistrate of any city, borough or corporation of a foreign country; may administer oaths and take and certify affidavits whenever the same may be necessary or proper in a proceeding in any court or under any law of this state, or for the purpose of taking depositions of any party of interest, or witnesses of any suit pending before any such court, or for the perpetuation of testimony, as provided in Section 13-1-57, Mississippi Code of 1972.

HISTORY: Codes 1857, ch. 61, art. 222; 1871, § 686; 1880, § 2294; 1892, § 934; 1906, § 1010; Hemingway’s 1917, § 730; 1930, § 745; 1942, § 1660; Laws, 1962, ch. 306; Laws, 1988, ch. 347, § 1; Laws, 1991, ch. 573, § 12, eff from and after July 1, 1991.

Editor’s Notes —

Section 13-1-57, referred to in this section, was repealed by Laws of 1975, ch. 501, § 22, effective from and after January 1, 1976. Comparable provisions now appear in Section 13-1-227.

Cross References —

Appointment of official court reporter, see §9-13-1.

Application to all courts of circuit court civil practice provisions, see §11-7-1.

Venue of civil actions or suits generally, see §§11-11-1 et seq.

Rules of evidence generally, see §§13-1-1 et seq.

Process, notice and publication generally, see §§13-3-1 et seq.

Power of notaries public to administer oaths, see §§25-33-9,25-33-11.

Acknowledgment and proof of conveyances or other contracts dealing with property, see §§89-3-3,89-3-9.

Rules governing civil practice and procedure in Mississippi courts, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Defendant’s claim that the trial court was without jurisdiction to accept defendant’s guilty plea was unsupported and without merit as defendant’s affidavit and the unsworn statement of the victim purporting to have had consensual sex with defendant in another county, which was not presented to the trial court, was insufficient evidence to support defendant’s allegation. Moore v. State, 250 So.3d 521, 2018 Miss. App. LEXIS 317 (Miss. Ct. App. 2018), cert. denied, 265 So.3d 180, 2019 Miss. LEXIS 99 (Miss. 2019).

Petitioner failed to furnish affidavits or show cause why he could not furnish affidavits to support his claims that he was shackled in front of the jury, as required by Miss. Code Ann. §§99-39-9(1)(e),11-1-1; although the petitioner referred to statements as “affidavits,” they had not been notarized before any official. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

For a murder trial taking place in Tennessee, a court reporter was authorized to take the deposition of a witness in Mississippi. State v. Powers (Tenn. Jan. 6, 2002).

The manner of selection of guardians as provided by the statutes is not exclusive, and a selection made by a notary public was sufficient where the notary public was authorized to administer oaths. Vaughn v. Vaughn, 226 Miss. 153, 83 So. 2d 821, 1955 Miss. LEXIS 618 (Miss. 1955).

Proceeding for seizure of property on which seller had purchase-money lien held not invalid because affidavit for seizure was made before officer in another state, since statute, providing that person having purchase-money lien “can enforce same” by making affidavit before proper officer of county where subject-matter of lien may be, is not mandatory. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

A justice of the peace is authorized to take affidavits in his own county, to be used elsewhere. Cassedy v. Mayers, 64 Miss. 356, 1 So. 510 (Miss. 1886).

Every affidavit taken in the progress of any suit must bear upon its face the title of the suit in which it is taken, and show the proceedings to which it is intended to reply. Saunders v. Erwin, 3 Miss. 732, 1838 Miss. LEXIS 34 (Miss. 1838).

Whenever an officer is confined in the execution of his duties to a particular territory, all of his official acts must show upon their face that they were performed within such territory. Saunders v. Erwin, 3 Miss. 732, 1838 Miss. LEXIS 34 (Miss. 1838).

OPINIONS OF THE ATTORNEY GENERAL

This section gives the mayor of a municipality the authority to administer oaths and therefore swear other public officials into office. Sanford, Aug. 13, 2004, A.G. Op. 04-0375.

RESEARCH REFERENCES

ALR.

Sufficiency of certificate of acknowledgment. 25 A.L.R.2d 1124.

Am. Jur.

3 Am. Jur. 2d, Affidavits §§ 6, 7.

20 Am. Jur. 2d (Rev), Courts §§ 34, 35.

58 Am. Jur. 2d, Oath and Affirmation §§ 16, 17, 20-22.

18A Am. Jur. Pl & Pr Forms (Rev), Oath and Affirmation, Forms 1-6.

13C Am. Jur. Legal Forms 2d, Oath and Affirmation, §§ 189:5-189:7, 189:9.

12 Am. Jur. Proof of Facts, Acknowledgments, Proof No. 1 (Valid acknowledgment–testimony of notary).

CJS.

2A C.J.S., Affidavits §§ 9, 53.

21 C.J.S., Courts §§ 116-118.

§ 11-1-3. Oath of an agent or attorney sufficient in all cases.

In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party.

HISTORY: Codes 1857, ch. 61, art. 223; 1871, § 687; 1880, § 2295; 1892, § 935; 1906, § 1011; Hemingway’s 1917, § 731; 1930, § 746; 1942, § 1661.

Cross References —

Execution of process on attorney in fact, see §87-3-5.

JUDICIAL DECISIONS

1. In general.

2. Agent or attorney.

1. In general.

Where a statute specifically prescribes who shall make a certain affidavit, it can be made by none other than the persons specified, although there is nothing in the language of the statute to show that its designation was intended to be exclusive. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

This section is inapplicable with respect to an affidavit of complainant accompanying a bill for divorce under Code 1942, § 2737, since under the latter section the designation of complainant as the person to make the affidavit is exclusive. Vance v. Vance, 197 Miss. 332, 20 So. 2d 825, 1945 Miss. LEXIS 293 (Miss. 1945).

In all cases the affidavit should be special and show whether the knowledge or information be that of the party or the attorney. Burks v. Burks, 66 Miss. 494, 6 So. 244, 1889 Miss. LEXIS 135 (Miss. 1889).

2. Agent or attorney.

Where motion which was signed and sworn to by appellant’s attorney to reinstate a cause after dismissal of appeal because of the failure of appellant to file assignment of error and brief though he had 30 days, the motion was insufficient where it did not disclose that this failure was without the appellant’s fault. Paine v. Wilemon, 218 Miss. 238, 67 So. 2d 289, 1953 Miss. LEXIS 535 (Miss. 1953).

It is not necessary that the prisoner himself swear to the application for change of venue where it appears from the affidavit of counsel filed before trial that the prisoner seems to be either insane or so shocked and mentally unbalanced since his arrest as to be unable to make a coherent statement and aid counsel in preparation of his defense. McGee v. State, 200 Miss. 350, 26 So. 2d 680, 1946 Miss. LEXIS 298 (Miss. 1946).

Affidavit to complaint made by attorney and reciting that allegations of complaint were correct and true held not objectionable for failure to disclose that facts were within personal knowledge of affiant, since, in absence of statement that allegations of facts were made on information, it was presumed to be sworn to on personal knowledge of affiant. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Answer denying charge of bill sworn to by attorney puts complainant to proof. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Where bill charged debt of gross amount not itemized, and answer sworn to by defendant’s attorney denied debt, and itemized sworn account was not embraced in pleadings, ex parte sworn account was not admissible; ex parte sworn account, after pleadings in which such account was not embraced or at issue, did not impose on defendant duty to file counteraffidavit specifying particular items denied. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Treasurer of corporation may make oath to open account within statute. W. M. Finck & Co. v. Brewer, 133 Miss. 9, 96 So. 402, 1923 Miss. LEXIS 103 (Miss. 1923).

Affidavit of agent to dispossess must be personal, and state facts. Downing v. Campbell, 131 Miss. 137, 95 So. 312, 1922 Miss. LEXIS 281 (Miss. 1922).

Attorney can make affidavit of defense on motion to set aside default judgment. Southwestern Surety Ins. Co. v. Treadway, 113 Miss. 189, 74 So. 143, 1916 Miss. LEXIS 41 (Miss. 1916).

The attorney can make affidavit for a principal to a plea of non est factum. Northrop v. Flaig, 57 Miss. 754, 1880 Miss. LEXIS 51 (Miss. 1880).

A bill in chancery, sworn to by the attorney of complainant, will not dispense with the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow the answer sworn to, as would be done if complainant himself swore to the bill. Jacks v. Bridewell, 51 Miss. 881, 1876 Miss. LEXIS 157 (Miss. 1876); Waller v. Shannon, 53 Miss. 500, 1876 Miss. LEXIS 102 (Miss. 1876).

Where a bill in chancery is sworn to by the attorney, the affidavit must be special, stating whether the allegations made on information and belief are on the information and belief of the complainant or of the attorney; and statements within the knowledge of the affiant must be stated to be within his knowledge. Waller v. Shannon, 53 Miss. 500, 1876 Miss. LEXIS 102 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

61A Am. Jur. 2d, Pleading §§ 257, 261.

CJS.

71 C.J.S., Pleading §§ 516, 517, 544, 546.

§ 11-1-5. All papers relating to a cause filed together.

All the pleadings, writs, proofs, and other papers relating to any cause in court, shall be filed together by the clerk, and carefully preserved in his office.

HISTORY: Codes, 1857, ch. 61, art. 25; 1871, § 563; 1880, § 2283; 1892, § 932; 1906, § 1008; Hemingway’s 1917, § 728; 1930, § 751; 1942, § 1666.

Cross References —

Duty of chancery clerk to make final record, see §9-5-161.

Larceny of court records, see §97-9-3.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d (Rev), Clerks of Court § 50.

CJS.

21 C.J.S., Courts §§ 327-351.

§§ 11-1-6 and 11-1-7. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-1-6. [Codes, 1942, § 1659.5; Laws, 1972, ch. 341, § 1]

§11-1-7. [Codes, Hutchinson’s 1848, ch. 54, art. 2 (6); 1857, ch. 62, art. 10; 1871, § 984; 1880, § 2265; 1892, § 914; 1906, § 990; Hemingway’s 1917, § 710; 1930, § 734; 1942, § 1649]

Editor’s Notes —

Former §11-1-6 provided for pretrial conferences.

Former §11-1-7 provided that all matters pending when a court fails to hold a term or fails to continue to sit for entire term are continued, that there would be no discontinuance when a court failed to sit on any day in a term, and that a court could take a recess.

§ 11-1-8. Advertising by attorneys not admitted to practice in Mississippi prohibited.

The Legislature recognizes that attorneys should be licensed by the State of Mississippi before engaging in any solicitation of clients in this state. Such licensing of attorneys protects the people of Mississippi in that The Mississippi Bar has direct jurisdiction over attorneys licensed by it. The Mississippi Supreme Court can act against such licensed attorneys in the event that such licensed attorneys commit violations of Mississippi law, court rules and rules of ethics for attorneys. The Legislature finds that this section is necessary for the protection of the people of Mississippi. An attorney who is not admitted to The Mississippi Bar shall not advertise his legal services in this state for the purpose of soliciting prospective clients for commencement of any civil action in this state, or for the purpose of soliciting clients for any civil action already commenced or pending in this state, unless the attorney who is not a member of The Mississippi Bar has associated an attorney who (a) is a member of The Mississippi Bar; and (b) will be associated and actively working on substantial aspects in any civil action filed on behalf of a client solicited as a result of the advertisement. A law firm composed of both attorneys who are members of The Mississippi Bar and attorneys who are not members of The Mississippi Bar may advertise in this state if a majority of the members of the firm are members of The Mississippi Bar. For purposes of this section, a listing in the residential or business section of the white pages of a telephone book shall not be an advertisement.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 4, § 12, effective from and after January 1, 2003.

RESEARCH REFERENCES

Law Reviews.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

§ 11-1-9. Continuance of action or proceeding where counsel is legislator.

In any cause now pending or which shall hereafter be pending before any court of this state or before any administrative board, agency or commission of this state or before any court or administrative agency or any county or municipality of this state in which an application for continuance is properly made, predicated upon the ground that the counsel for the party making said application is a member of the Mississippi legislature and if said application is made at a time when the legislature is in session, either regular or extraordinary, or if said legislature will be in session at the time that said cause would be triable, then the continuance shall be granted in all cases.

HISTORY: Codes, 1942, § 1649.5; Laws, 1960, ch. 247; Laws, 1972, ch. 302, § 1, eff from and after passage (approved February 25, 1972).

Cross References —

Continuance of Supreme Court cases, see §11-3-7.

Continuance of trial in habeas corpus proceedings, see §11-43-33.

Continuance of action against nonresident, see §75-75-13.

Continuance in divorce cases, see §93-5-7.

Application for continuance in capital cases, see §99-15-31.

JUDICIAL DECISIONS

1. In general.

The length of time for which a continuance may be granted rests within the sound discretion of the trial court. Thus, in a prosecution for armed robbery in which defense counsel was a member of the Mississippi Legislature, the trial court did not err in granting defendant a continuance until the day following the adjournment of the legislature, despite his request for a continuance to the next term of court. Gooch v. State, 384 So. 2d 74, 1980 Miss. LEXIS 2022 (Miss. 1980), cert. denied, 450 U.S. 923, 101 S. Ct. 1374, 67 L. Ed. 2d 352, 1981 U.S. LEXIS 901 (U.S. 1981).

RESEARCH REFERENCES

Am. Jur.

17 Am. Jur. 2d, Continuance §§ 49, 50, 53.

7 Am. Jur. Pl & Pr Forms (Rev), Continuance, Forms 66, 69, 171 et seq.

CJS.

17 C.J.S., Continuances § 50.

§§ 11-1-11 through 11-1-15. Repealed.

Repealed by Laws, 1989, ch. 587, § 7, eff from and after April 25, 1989 (became law without the Governor’s signature).

§11-1-11. [Codes, Hutchinson’s 1848, ch. 53, art. 2 (186), ch. 54, art 2 (7); 1857, ch. 61, arts. 12, 13, ch. 62, art. 7; 1871, §§ 536, 986; 1880, § 2271; 1892, § 920; 1906, § 996; Hemingway’s 1917, § 716; 1930, § 737; 1942, § 1652; Laws, 1952, ch. 239; Laws, 1988, ch. 429, § 1]

§11-1-13. [Codes, 1892, § 921; 1906, § 997; Hemingway’s 1917, § 717; 1930, § 738; 1942, § 1653; Laws, 1928, Ex. ch. 86; Laws, 1952, ch. 235; Laws, 1966, ch. 352, § 2; Laws, 1988, ch. 429, § 3]

§11-1-15. [Codes, 1880, § 2272; 1892, § 922; 1906, § 998; Hemingway’s 1917, § 718; 1930, § 739; 1942, § 1654]

Editor’s Notes —

Former §11-1-11 prescribed the manner of finding a substitute when a circuit judge, county judge, or chancellor was disqualified from hearing a case.

Former §11-1-13 provided distinctions between a special judge appointed for a particular case and one appointed for an entire term.

Former §11-1-15 provided for judges of other districts to cover for judges who were disqualified in matters of vacation.

§ 11-1-16. Proceedings in vacation; jurisdiction and authority of judge.

  1. Notwithstanding the provisions of any other law to the contrary, the judge of any circuit, chancery, county, youth or family court or any other court of record shall, in vacation, and in the same manner as at a regular term, have jurisdiction to hear and determine and make and enter judgments, orders and decrees in all cases, civil or criminal, which are pending in the court and which were triable at the preceding term. Parties and witnesses duly summoned, subpoenaed or bound by recognizance at the preceding term shall be bound to attend without the necessity of additional process. Petit juries may be impaneled in such cases in the same manner as in termtime. All judgments, orders and decrees which the judge may render or make in such cases tried shall be signed by him and thereupon be entered and recorded on the minute book of the court in which the case or matter is pending, and shall have the same force and effect as if made, entered and recorded in termtime. Appeals may be had and taken therefrom when so entered and recorded, as in other cases, in like manner as is provided by law when cases are tried in termtime.
  2. The provisions of this section shall be supplemental and in addition to all other jurisdiction and authority which the judge of any such court may lawfully exercise in vacation or at a special term.

HISTORY: Laws, 1983, ch. 388, eff from and after passage (approved March 23, 1983).

Editor’s Notes —

Laws, 1999, ch. 432, § 1, provides that:

“SECTION 1. From and after the date Laws, 1999, ch. 432, is effectuated under Section 5 of the Voting Rights Act of 1965, all family courts are abolished. All matters pending in any family court abolished shall be transferred to the county court of the county wherein the family court was located without the necessity for any motion or order of court for such transfer.”

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Trial court did not err in relying on the clerk’s documentation as to when defendant’s motion to reconsider sentence was truly filed; a judge may not alter or vacate a sentence once the term of court the defendant was sentenced in has ended, thus defendant was four days late, for jurisdictional purposes, in filing his motion; this motion could not be considered “pending” under Miss. Code Ann. §11-1-16, because the motion was not filed before the term of court ended. Ducote v. State, 970 So. 2d 1309, 2007 Miss. App. LEXIS 831 (Miss. Ct. App. 2007).

Miss. Code Ann. §11-1-16 (1991) clearly gives a circuit court authority to consider a pending motion after a term has ended; Dickerson v. State, 731 So. 2d 1082 (Miss. 1998) is overruled to the extent it is inconsistent with Miss. Code Ann. §11-1-16 (1991). Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

The statute gives a circuit court authority to consider a pending motion after a term has ended. Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

There has been a vast expansion by statutory enactment of the times within which circuit judges are lawfully empowered to conduct court affairs. Although the Mississippi Constitution contemplates circuit courts being held at fixed, stated terms provided by statute, and the circuit courts of this State have had fixed terms, the legislature by various enactments – §§11-1-7 [Repealed],11-7-131,11-7-133 [Repealed],11-7-121 [Repealed],11-1-16, and9-7-3 – has granted circuit courts wide latitude in taking official actions in vacation. Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Miss. Code Ann. §11-1-16 (1991) clearly gives a circuit court authority to consider a pending motion after a term has ended; Dickerson v. State, 731 So. 2d 1082 (Miss. 1998) is overruled to the extent it is inconsistent with Miss. Code Ann. §11-1-16 (1991). Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

The dispositive portion of a circuit judge’s order entered in vacation setting aside defendants’ convictions under 2 counts of an indictment had the same finality as a final judgment, and where no further action was taken in the ensuing regular term of the court, the circuit court was without authority thereafter to reinstate the convictions. Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Medical malpractice action was not required to be remanded for new trial because the prevailing parties in the court below failed to file their final judgment before the term of court closed, but in fact filed it at the next term of court. Latham v. Hayes, 495 So. 2d 453, 1986 Miss. LEXIS 2653 (Miss. 1986).

2. Applicability.

Trial court did not abuse its discretion in denying defendant’s motion to reconsider a 10-year prison sentence for the sale of crack cocaine where the term of court in which defendant was sentenced had ended. Defendant did not qualify under the exception in Miss. Code Ann. §11-1-16(1), as defendant’s motion was not pending when the court term ended. McGee v. State, 976 So. 2d 954, 2008 Miss. App. LEXIS 141 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

ALR.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

§ 11-1-17. Time for rendition of final decree; right of appeal where decree not entered within required time.

All chancellors or judges of the chancery and circuit courts of the state of Mississippi shall render their final decree on any and all matters taken under advisement by such chancellors or judges not later than six (6) months after the date when same are taken under advisement or not later than six (6) months after the date on which the chancellors or courts or judges set as a date for the final brief or memoranda of authority is required to be filed on or as to the cause taken under advisement, whichever is the latest date after the date on which the cause or case is taken under advisement.

In the event a final decree has not been entered within the six months period hereinbefore referred to, then any party to said law suit shall have the right to appeal on the record as otherwise provided the same as if a final decree has been rendered adversely. Said appeal shall be to the supreme court of the state of Mississippi and shall be treated as a preferred case over other cases except election contests.

HISTORY: Codes, 1942, § 1650.5; Laws, 1958, ch. 334, § 3; Laws, 1962, ch. 388, § 2; Laws, 1966, ch. 445, § 4; Laws, 1968, ch. 334, § 1, eff from and after passage (approved August 7, 1968).

Editor’s Notes —

This section is modified or supplanted by Rule 15, Mississippi Rules of Appellate Procedure, as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Appeal from final judgment or decree, see §11-51-3.

Writ of mandamus to require trial court decision, see Miss. R. App. P. 15.

JUDICIAL DECISIONS

1. In general.

Circuit court did not err in affirming the decision of a county board of supervisors to rezone certain property from agricultural and very low density residential to general industry because substantial evidence was before the board to support its decision, which was fairly debatable and could not be disturbed on appeal, and the impact of a hurricane on the area was an underlying concern and a significant factor in the change that had occurred in the area sought to be rezoned; the board was well aware of the impact of the hurricane on the county, and it implemented proper procedures for determining the rezoning of the area. Edwards v. Harrison County Bd. of Supervisors, 22 So.3d 268, 2009 Miss. LEXIS 410 (Miss. 2009).

A chancery court ruling entitled “Court Opinion,” which stated that it was the “final order,” acted to finally terminate litigation in the trial court for purposes of appeal such that no further act by the court was necessary even though no separate “final judgment” was entered. Adoption of Karenina v. Presley, 526 So. 2d 518, 1988 Miss. LEXIS 244 (Miss. 1988).

Where the filings required for an appeal were made prior to a decision which abrogated §11-1-17, which allowed an appeal to be taken directly to the Mississippi Supreme Court upon a trial court’s failure to enter a final decree within six months after taking the matter under advisement or deferment, and which promulgated a rule replacing the appeal procedure with the right to apply to the Supreme Court for a writ of mandamus to compel a trial judge to render a decision on a matter taken under advisement or deferred, the appeal would be heard and decided in accordance with the prior existing law, and thus, the chancellor lost jurisdiction to render a decree once the appeal was perfected pursuant to §11-1-17. Protective Service Life Ins. Co. v. Carter, 445 So. 2d 215, 1983 Miss. LEXIS 3016 (Miss. 1983).

An appeal would not lie under §11-1-17, where the circuit court judge had neither taken the case under advisement nor set a final due date for the filing of briefs. Mabry v. Day-Brite Lighting Div., Emerson Electric Co., 416 So. 2d 677, 1982 Miss. LEXIS 2052 (Miss. 1982).

In an action for wrongful death where the jury returned a verdict for the defendant and where the circuit court failed to rule on the plaintiff’s subsequent motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, the appeal would be dismissed since, if an order had been entered on the motion, it would have been an interlocutory order and therefore nonappealable from the circuit court to the Supreme Court. Woods v. Lee, 390 So. 2d 1010, 1980 Miss. LEXIS 2164 (Miss. 1980).

Party appealing to the Supreme Court under this section has the status of an appellant. Beall v. Beall, 310 So. 2d 706, 1975 Miss. LEXIS 1910 (Miss. 1975).

Where, upon remand from the supreme court, the trial court took the case under advisement following a hearing, but failed to decide the case within six months, appellant was entitled to appeal under the statute. Horton v. Horton, 301 So. 2d 305, 1974 Miss. LEXIS 1660 (Miss. 1974).

After an appeal was taken on the ground of the court’s failure to render a final decree within 6 months after the date when the matter was taken under advisement, the lower court was without jurisdiction to enter any opinion or decree in the matter. Evans v. State, 258 So. 2d 419, 1972 Miss. LEXIS 1497 (Miss. 1972).

RESEARCH REFERENCES

ALR.

Consequences of prosecution’s failure to file timely brief in appeal by accused. 27 A.L.R.4th 213.

Am. Jur.

47 Am. Jur. 2d, Judgments § 41.

CJS.

49 C.J.S., Judgments §§ 226, 227, 236, 238.

Law Reviews.

1982 Mississippi Supreme Court Review: Civil Procedure: Judicial Decisions. 53 Miss LJ 130, March 1983.

§ 11-1-18. Bench trials allowed in certain cases where parties agree.

If the parties to a cause of action agree, any claim filed alleging damages may receive a bench trial which shall be conducted in two hundred seventy (270) days or less after the cause of action has been filed. The cause of action shall be a priority item in the court.

HISTORY: Laws, 2004, 1st Ex. Sess., ch. 1, § 18, eff from and after September 1, 2004.

§ 11-1-19. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 61, art 1 (96); 1857, ch. 61, art 186; 1871, § 627; 1880, § 2298; 1892, § 940; 1906, § 1016; Hemingway’s 1917, § 736; 1930, § 755; 1942, § 1670]

Editor’s Notes —

Former §11-1-19 provided procedures for correcting errors in records of judgments and decrees and trial records.

§ 11-1-21. Excess remitted.

Where any bond, taken by virtue of any process or order, by miscalculation or mistake, shall be conditioned for the payment of a larger sum of money than by law ought to have been acquired thereby, and a verdict shall have been rendered thereon for the larger sum, or where a verdict shall be rendered for more damages than the plaintiff shall have demanded by his suit, and judgment be rendered accordingly, it shall be lawful for the plaintiff, at the same or any future term of the court, to release in open court any such excess; or he may in vacation release the same, in writing under his hand, and file it among the papers of the cause; and such release shall cure any error growing out of the excess. If the record of any such judgment be removed to an appellate court before the release be made, it shall be competent for the appellee to make such release in the appellate court; and thereupon, the court, after reversing the judgment, shall proceed to give such judgment as the court below ought to have given if the release had been filed therein; but in such case the appellant shall recover the costs paid, and the judgment shall not be entered against the sureties in the appeal bond.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (97, 98); 1857, ch. 61, arts. 187, 188; 1871, §§ 628, 629; 1880, §§ 2299, 2300; 1892, § 941; 1906, § 1017; Hemingway’s 1917, § 737; 1930, § 756; 1942, § 1671; Laws, 1978, ch. 335, § 1, eff from and after July 1, 1978.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds § 27.

Law Reviews.

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

§ 11-1-23. Court or judge may require new security.

Each court, and the judge thereof in vacation, and any of the judges, if more than one compose the court, in all cases not especially provided for by statute, may require any bond, recognizance, obligation, or undertaking of any kind in any legal proceeding, of which the court has cognizance, which is shown to be insufficient, to be substituted by a new one, with sufficient sureties; and for a failure to comply with the order of the court or judge in the matter, the court or judge may make such order as may be proper in the case, and may direct such process as may be necessary or proper to enforce it; but notwithstanding the discharge of a supersedeas, injunction, attachment, or other process in consequence of such failure, a judgment or decree may be given on the bond or other obligation, or liability on it may be enforced by action or otherwise, as if it had not been held to be insufficient; but if done in vacation, five days’ notice of the time and place of making application for the order shall be given to the opposite party; and in all cases reasonable time shall be allowed for giving new bond, upon such terms as the court or judge may prescribe.

HISTORY: Codes, 1880, § 2307; 1892, § 948; 1906, § 1024; Hemingway’s 1917, § 744; 1930, § 757; 1942, § 1672.

Cross References —

Authority of chancery court to reduce or cancel excessive bonds of receivers, executors, etc., see §9-5-103.

Authority of Supreme Court to require new bond, see §11-3-33.

Authority of circuit court to require new appeal bond, see §11-51-97.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

That circuit court permitted alleged defective bond given on appeal from county court to be amended held not error. Bassett v. Building & Loan Ass'n, 164 Miss. 674, 145 So. 109, 1933 Miss. LEXIS 229 (Miss. 1933).

§ 11-1-25. Certain bonds not affected by irregularity.

When a bond, recognizance, obligation, or undertaking of any kind shall be executed in any legal proceeding, or for the performance of any public contract, or for the faithful discharge of any duty, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how it is conditioned; and the persons executing such bond or other undertaking shall be bound thereon and thereby, and shall be liable to judgment or decree on such bond or undertaking as if it were payable and conditioned in all respects as prescribed by law, if such bond or other obligation or undertaking had the effect in such proceeding or matter which a bond or other undertaking payable and conditioned as prescribed by law, would have had; and where any such bond or undertaking is not for any specified sum, it shall bind the parties executing it for the full amount for which any bond or undertaking might have been required in the state of case in which it was given.

HISTORY: Codes, 1880, § 2305; 1892, § 946; 1906, § 1022; Hemingway’s 1917, § 742; 1930, § 758; 1942, § 1673.

Cross References —

Validity of bonds without seal, see §75-19-7.

Irregularities in bail bonds, see §99-5-23.

JUDICIAL DECISIONS

1. In general.

2. Irregularity or insufficiency.

3. —Form of bond.

4. —As to payee or beneficiary.

5. —As to amount.

6. —As to conditions of bond.

7. Estoppel.

1. In general.

This section does not apply to bonds required in federal court under federal statutes. National Surety Co. v. Lee, 125 Miss. 517, 88 So. 7, 1921 Miss. LEXIS 137 (Miss. 1921).

This section has no application to a voluntary bond, and a cost bond is a voluntary bond if given in a suit after the court has adjudged its execution unnecessary. Nichols v. Gulf & S. I. R. Co., 83 Miss. 126, 36 So. 192, 1903 Miss. LEXIS 20 (Miss. 1903).

The statute does not apply where a defendant in execution gave a bond to have the proceeds of property levied on forthcoming. Such a bond is unauthorized; and in such case it makes no difference that another made a claimant’s issue, the court will treat the officer as having the money in his hands. Carothers v. Leigh Bros., 60 Miss. 258, 1882 Miss. LEXIS 44 (Miss. 1882).

2. Irregularity or insufficiency.

This section cures all defects in bond after decree approving same. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

Sureties on supersedeas bond, given on premature appeal, are liable for rent, where on appeal decree awarding plaintiff possession of land is affirmed, plaintiff in the meantime being deprived of possession. Perkins v. Watson, 92 Miss. 452, 46 So. 80, 1908 Miss. LEXIS 213 (Miss. 1908).

3. —Form of bond.

The obligors in a bond given in a replevin suit cannot, under the statute, object to judgment against them because the form of the bond be the one appropriate for a claimant’s issue. Clark v. Clinton, 61 Miss. 337, 1883 Miss. LEXIS 133 (Miss. 1883).

4. —As to payee or beneficiary.

Action on a bond made in favor of the state for the use of a city was properly brought in the name of the state. Williams v. General Insurors, Inc., 6 So. 2d 922 (Miss. 1942).

Under this section the fidelity bond of a former liquidating agent of an insolvent bank was for the benefit of the depositors, creditors and stockholders of such bank and covered the misappropriation of funds thereof, notwithstanding that the bond was payable to the state banking department and it did not expressly provide for the security of the stockholders and creditors of the bank, and that it was not required by the banking laws, since it was given in the progress of a legal proceeding, the administration of the affairs of the bank by the chancery court, that the superintendent of banks had incidental powers to require such a bond and that the bank’s supervision and control laws were enacted for the benefit of the depositors, creditors and stockholders of banks. Moore v. Bank of Indianola Liquidating Corp., 183 Miss. 626, 184 So. 305, 1938 Miss. LEXIS 274 (Miss. 1938).

That official bond of member of board of supervisors was payable to county, instead of to State, as required by statute, did not exempt surety from liability thereon, since bond inured to benefit of persons whom law designated it to secure, regardless of named obligee of bond. State use of Russell v. McRae, 169 Miss. 169, 152 So. 826, 1934 Miss. LEXIS 26 (Miss. 1934).

Bonds executed by surety for principal on contract for installing heating and ventilating system in high school protected materialmen. Union Indem. Co. v. Acme Blow Pipe & Sheet Metal Works, 150 Miss. 332, 117 So. 251, 1928 Miss. LEXIS 171 (Miss. 1928).

Failure of bond in certiorari to review proceedings of board of supervisors, to run to county, held not to require dismissal of certiorari. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

Bond made payable to city does not prevent liability of surety to county under this section. United States Fidelity & Guaranty Co. v. Adams County, 105 Miss. 675, 63 So. 192, 1913 Miss. LEXIS 247 (Miss. 1913).

5. —As to amount.

When plaintiff’s replevin bond does not recite amount, law writes into bond penalty of double value of property as ascertained by officer’s return. Myers v. Daughdrill, 163 Miss. 298, 141 So. 583, 1932 Miss. LEXIS 42 (Miss. 1932), but see Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

Chancery clerk taking injunction bond in proper amount is not subject to statutory penalty or damages if sureties are solvent. Davis v. Hale, 155 Miss. 309, 124 So. 370, 1929 Miss. LEXIS 297 (Miss. 1929).

Where all sureties but one had signed supersedeas bond, act of principal thereafter raising amount then procuring signature of additional surety relieved all sureties of liability regardless of this section. Parsons-May-Oberschmidt Co. v. Furr, 110 Miss. 795, 70 So. 895, 1916 Miss. LEXIS 201 (Miss. 1916).

Where supersedeas bond does not state an amount court is only authorized to render judgment for amount authorized by terms of the bond and rules of equity. Parsons-May-Oberschmidt Co. v. Furr, 110 Miss. 795, 70 So. 895, 1916 Miss. LEXIS 201 (Miss. 1916).

6. —As to conditions of bond.

Under this section a bond intended to be an indemnifying bond under § 1967, Code 1892, but conditioned by mistake under § 3482, Code 1892, will on a suit thereon be treated as though properly conditioned. Bank of Gulfport v. O'Neal, 86 Miss. 45, 38 So. 630, 1905 Miss. LEXIS 66 (Miss. 1905).

7. Estoppel.

Surety held estopped to rely on any defects in proceedings or to assert that defendant not signing bond did not authorize appeal where appeal bond executed by surety and one defendant recited that both defendants were appellants, record came before Supreme Court in regular form with appeal bond operating as supersedeas and court’s attention was not directed to any defects therein. Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 378, 168 So. 468 (Miss. 1936).

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds §§ 15 et seq.

CJS.

11 C.J.S., Bonds §§ 52 et seq.

§ 11-1-27. Bonds payable to the state in certain cases.

Any bond required to be given in any matter, where it is not prescribed to whom it shall be made payable, may be made payable to the state.

HISTORY: Codes, 1880, § 2306; 1892, § 947; 1906, § 1023; Hemingway’s 1917, § 743; 1930, § 759; 1942, § 1674.

Cross References —

Requirement that official bonds be made payable to state, see §25-1-17.

Requirement that bail bonds and recognizances be made payable to state, see §99-5-5.

OPINIONS OF THE ATTORNEY GENERAL

Bond which secures the patient funds held by the state must be payable to the state. Hendrix, Jan. 3, 2003, A.G. Op. #02-0753.

§ 11-1-29. Proceedings on death of surety on bonds, etc.

If any surety on a bond, recognizance, or undertaking of any kind given in any legal proceeding, shall be dead at the time for judgment to be rendered or execution to be issued thereon, that shall not prevent judgment from being rendered or execution being issued on such bond, recognizance, or undertaking against parties thereto who are living, but judgment may be rendered against such parties, and judgment nisi may be entered against the personal representatives of parties who are dead, and citation shall be issued to the personal representative to show cause why the judgment should not be made absolute against them, and it shall be made absolute unless, upon the return of citation executed, good cause be shown against it. Execution may be issued on such judgment against the living parties, and after the absolute judgment against the personal representatives, execution may be issued against them to enforce it.

HISTORY: Codes, 1880, § 2301; 1892, § 942; 1906, § 1018; Hemingway’s 1917, § 738; 1930, § 761; 1942, § 1676.

Cross References —

Proceedings on death of surety on bond in trial of right of property, see §11-23-19.

Proceedings on death of surety on bond in ejectment, see §11-51-37.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Death of principal as exoneration, defense, or ground for relief, of sureties on bail or appearance bond. 63 A.L.R.2d 830.

§ 11-1-31. Death of parties on bonds having force of judgment.

Where execution may be issued on any bond or undertaking, and some of the parties are dead, it may be issued separately against such as are alive, and citation may be issued to the personal representatives of such as are dead, to show cause against the issuance of execution against them on such bond or undertaking; and on the return of such citation executed, if no sufficient cause be shown against it, execution may be issued against them.

HISTORY: Codes, 1880, § 2302; 1892, § 943; 1906, § 1019; Hemingway’s 1917, § 739; 1930, § 762; 1942, § 1677.

Cross References —

Execution on death of surety on bond in trial of right of property, see §11-23-19.

Execution on death of surety on bond in ejectment, see §11-51-37.

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Death of principal as exoneration, defense, or ground for relief, of sureties on bail or appearance bond. 63 A.L.R.2d 830.

§ 11-1-33. Death of parties on bonds having force of judgment; citation in anticipation of judgment.

Citation to the personal representatives of a deceased party may be issued and executed at any time before the time for judgment or execution on such bond, recognizance, or undertaking, requiring the appearance of the representatives before the court having possession or control of the obligation, to submit to judgment or execution thereon; and if issued and executed before the rendition of judgment or issuance of execution against the living parties, judgment may be rendered or execution issued against such personal representatives as well as against parties alive, without delay or further process.

HISTORY: Codes, 1880, § 2303; 1892, § 944; 1906, § 1020; Hemingway’s 1917, § 740; 1930, § 763; 1942, § 1678.

Cross References —

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

§ 11-1-35. Death of parties on bonds having force of judgment; when citation issued and returnable.

Citations referred to in Section 11-1-33 may be issued in vacation or in term time without any order of court therefor, and may be made returnable on the return day for other process, if issued in vacation, or forthwith, if issued during the term of court, and shall be executed five days before judgment or execution against such personal representatives.

HISTORY: Codes, 1880, § 2304; 1892, § 945; 1906, § 1021; Hemingway’s 1917, § 741; 1930, § 764; 1942, § 1679.

Cross References —

Rule prescribing substitution for deceased parties, see Miss. R.Civ. P. 25.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

§ 11-1-37. Certification of transferred causes.

If a cause be transferred by order of the chancery court to the circuit court, or vice versa, the clerk of the court ordering the transfer shall forthwith deposit all the papers in the cause, together with his certificate of the fact of the transfer, in the court to which it was transferred, taking the receipt of the clerk therefor.

HISTORY: Codes, 1892, § 936; 1906, § 1012; Hemingway’s 1917, § 732; 1930, § 765; 1942, § 1680.

Cross References —

Constitutional authority for certification of transferred causes, see Miss. Const. Art. 6, § 163.

Jurisdiction of chancery court over causes transferred by circuit court, see §9-5-81.

Jurisdiction of circuit court over cases transferred by chancery court, see §9-7-83.

JUDICIAL DECISIONS

1. In general.

Where prior to the conclusion of the trial of a suit brought in the circuit court, the plaintiff made a motion to transfer the case to chancery court, and the circuit court granted such motion, the chancery court was vested with jurisdiction and the circuit court could not dispose of the case. Ainsworth v. Blakeney, 227 Miss. 544, 86 So. 2d 501, 1956 Miss. LEXIS 723 (Miss. 1956).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 82.

15 Am. Jur. Pl & Pr Forms (Rev), Judges, Forms 1, 81-84.

CJS.

21 C.J.S., Courts §§ 347, 350 et seq.

§ 11-1-39. Proceedings in transferred causes.

When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in the court to which the cause was transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or grant further time; and the defendant shall plead within thirty days thereafter, unless the time, by like means, be restricted or extended. And the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted.

HISTORY: Codes, 1892, § 937; 1906, § 1013; Hemingway’s 1917, § 733; 1930, § 766; 1942, § 1681.

JUDICIAL DECISIONS

1. In general.

Although plaintiff failed to refile his complaint with the chancery court of Forrest County after the case was transferred from the circuit court of Forrest County, Miss. Code Ann. §11-1-39 did not require the dismissal of plaintiff’s complaint. Gibson v. Williams, 186 So.3d 836, 2016 Miss. LEXIS 108 (Miss. 2016).

Heavy equipment vendor’s action against a county board of supervisors which was timely filed in the chancery court, but later transferred to the circuit court, would be deemed to have been timely filed in the circuit court. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

When an action is transferred from the chancery court to the circuit court, or vice versa, in the transferee court the action is deemed filed as of the date of original filing in the transferor court. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

Chancellor’s denial of motion to dismiss case for failure to reform pleadings within 30 days following transfer of case from circuit to chancery court will not be reversed on appeal where no prejudice is shown to have resulted from denial. Star Chevrolet Co. v. Green, 473 So. 2d 157, 1985 Miss. LEXIS 2141 (Miss. 1985).

In an action by a construction company seeking to establish and enforce a claim for a construction lien against the property of the defendant, the trial court should have dismissed the cause where the plaintiff had failed to file its declaration within 30 days as required by the statute, notwithstanding the fact that the parties had continued discovery and communicated by letter with one another after the cause had been transferred from the chancery court to the circuit court; however, where the plaintiff did in fact file its declaration approximately 20 months after the cause had been transferred to the circuit court and where the defendant had answered the declaration joining issue and continued to participate in the trial of the cause until judgment, the judgment would be allowed to stand since the defendant had suffered no prejudice during the course of the trial and no good purpose would be served by requiring the parties and the court to undergo another extensive trial, incurring large sums of additional expense and consuming valuable judicial time. Central Grain & Supply Co. v. Jesco, Inc., 410 So. 2d 879, 1982 Miss. LEXIS 1876 (Miss. 1982).

The statute does not provide for a dismissal of the action where the plaintiff or complainant fails to file his declaration or bill of complaint in the transferee court. If a complainant or plaintiff fails to file his declaration or bill in the court to which the case has been transferred within 30 days or within such time as the transferee court shall fix, the case would be in the same posture as if no case had been filed and would be subject to dismissal without prejudice. Commercial Nat'l Bank v. Fleetwood Homes of Mississippi, Inc., 398 So. 2d 659, 1981 Miss. LEXIS 2020 (Miss. 1981).

In view of the provisions of Code 1942, § 360, actions brought in the chancery court to enforce laborer’s and materialmen’s liens were properly transferred by the chancellor to the Circuit Court, and an interlocutory appeal from the order of transfer should not have been granted. West v. Mechanical Services, Inc., 216 So. 2d 174, 1968 Miss. LEXIS 1223 (Miss. 1968).

Where prior to the conclusion of the trial of a suit brought in the circuit court, the plaintiff made a motion to transfer the case to chancery court, and the circuit court granted such motion, the chancery court was vested with jurisdiction and the circuit court could not dispose of the case. Ainsworth v. Blakeney, 227 Miss. 544, 86 So. 2d 501, 1956 Miss. LEXIS 723 (Miss. 1956).

Where an equitable proceeding by an insurance company seeks reimbursement on behalf of an insurance agency for an insurance agent’s default in his accounts guaranteed by a bond, based on the theory of subrogation, was transferred to the circuit court, such court was under a duty to proceed with the suit the same “as if it had been originally begun in that court, as of the date on which the cause was originally instituted,” even though it was exclusively one of equitable cognizance, and whether the transfer was proper or not. Jenkins & Boyle v. Rogers, 184 Miss. 182, 185 So. 603, 1939 Miss. LEXIS 39 (Miss. 1939).

Defendant presenting plea before default judgment is entitled to trial on merits, where failure to timely present plea was through attorney’s inadvertence. Tonkel v. Williams, 146 Miss. 842, 112 So. 368, 1927 Miss. LEXIS 246 (Miss. 1927).

On transfer of cause from circuit to chancery court upon issue of garnishee’s liability raised by its answer setting up adjudication of the issue between garnishee and certain parties defendants to the bill in the chancery court, where plaintiff could only attack the judgment on the ground of fraud and collusion, it was error to dismiss the bill. Foote-Patrick Co. v. Caladonia Ins. Co., 113 Miss. 419, 74 So. 292, 1917 Miss. LEXIS 116 (Miss. 1917).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 82.

CJS.

21 C.J.S., Courts §§ 266, 272.

§ 11-1-41. Costs in transferred causes.

The complainant or plaintiff in the first court shall pay all the costs in such court; but he may recover the same of the defendant, in the court to which the cause was transferred, at the discretion of the court.

HISTORY: Codes, 1892, § 938; 1906, § 1014; Hemingway’s 1917, § 734; 1930, § 767; 1942, § 1682.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

§ 11-1-43. Seizure of perishable commodities by legal process.

In order to promote the general welfare, to insure, prepare and expedite movement of commerce through the ports of the State of Mississippi, to avoid any unnecessary delay, to indemnify any damages to shippers through said ports, and to prevent any unnecessary delay, it is provided that any person, firm or corporation who shall hereafter seek in the courts of Mississippi, either the circuit courts or the chancery courts, to obtain writ of replevin, writ of sequestration, writ of seizure, writ of attachment, or other legal processes for the purpose of seizing any cargo or shipment of bananas or other perishable commodity passing through the ports of entry in the State of Mississippi, shall, before such writ is issued, post a good and sufficient bond with sufficient sureties thereon, to be approved by the clerk of the court, wherein such proceedings are instituted. Such bond shall be in a sum double the value of the commodities sought to be attached, replevied, sequestrated, seized or otherwise, payable to the person actually in possession of said commodities, and conditioned that the plaintiff therein shall indemnify and pay to the owner of such property such damages as he or it may sustain by reason of such seizure of said property, that he will pay all handling charges, charges that might accrue on demurrage on the ship, cars, warehouses, docks or railroad facilities and all freight charges, and that he will pay all attorney’s fees, court cost and all other damages that might accrue by reason of such illegal seizure thereof.

HISTORY: Codes, 1942, § 1683; Laws, 1936, ch. 317.

Cross References —

Sequestration generally, see §§11-29-1 et seq.

Attachments generally, see §§11-33-1 et seq.

Replevin generally, see §§11-37-101 et seq.

Sale of perishable goods, see §13-3-167.

Warehouseman’s options with regard to perishable goods, see §75-7-206.

Remedy to enforce lien, see §85-7-31.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 421, 423 et seq.

CJS.

7 C.J.S., Attachment §§ 149, 159.

38 C.J.S., Garnishment §§ 182, 183.

§ 11-1-45. Seizure of perishable commodities by legal process; declaration or bill.

When any affidavit is filed, either in circuit courts or chancery courts in the state of Mississippi, attaching, sequestrating, replevying, or seizing any commodities described in Section 11-1-43, the plaintiff therein shall be required to file, within forty-eight hours, after the writ or affidavit has been issued, a declaration stating cause of action if in the circuit courts, or a bill of complaint if filed in the chancery courts, stating cause of action upon which the seizure is made. Upon filing of said declaration or bill of complaint, an issue shall be joined thereon, and a hearing, in vacation, may be had before the circuit judge or chancellor in the said district where said writ was issued to determine the rights of the said parties to the ownership of the said commodities so seized. Upon hearing of evidence, the court may in vacation render judgment and award possession to the parties entitled and may, if said writ or writs were illegally issued out, award damages on said bond to the parties entitled thereto.

HISTORY: Codes, 1942, § 1684; Laws, 1936, ch. 317.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

§ 11-1-47. Seizure of perishable commodities by legal process; possessor presumed to be owner.

The possessor of any perishable commodities as described in Section 11-1-43, shall be presumed to be the owner of said commodities and, in the event any writ of replevin, writ of seizure, writ of sequestration or writ of attachment shall be issued against such commodities, the possessor thereof shall have the immediate right to possession of said commodities upon his furnishing bond payable to the order of the clerk of the court in a sum equal to the value of the commodities.

HISTORY: Codes, 1942, § 1685; Laws, 1936, ch. 317.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

§ 11-1-49. Seizure of perishable commodities by legal process; process as to nonresident owners.

If the owner of any such cargo or shipment of such perishable commodities be a nonresident of the State of Mississippi and be made a defendant in any action at law or suit in any chancery court, in any court of this state, service of summons or process of such court may be served on such defendant by serving a copy thereof on any steamship agent, ship captain, or other ship’s officer, railroad agent, railroad conductor, stevedore or other person having possession or control of such cargo or shipment and by mailing a copy thereof by registered mail addressed to the last known address of such defendant, return receipt requested. When any summons or process against such nonresident owner of such cargo or shipment has been returned so executed, the defendant shall be considered in court and the action or suit shall proceed as though personal service had been had on such defendant, nonresident owner of such cargo or shipment, and all other process or notices necessary to be served in any court proceeding may be served as herein provided.

HISTORY: Codes, 1942, § 1686; Laws, 1936, ch. 317.

Cross References —

Rule prescribing methods of service of summons, see Miss. R. Civ. P. 4.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

§ 11-1-51. Copy of books, papers, or documents furnished; issuance and service of subpoenas duces tecum.

  1. The court in which any action or suit is pending may, on good cause shown, and after notice of the application to the opposite party, in termtime or in vacation, order either party to make available to the other, within a specified time, and on such terms as may be imposed, an inspection and copy, or to grant permission to take a copy or photograph of any books, papers, documents, accounts, letters, photographs, objects, or tangible things, in his possession or under his control containing evidence relating to the merits of the action or proceeding or of the defense thereto; or order any party to permit entry upon designated land or other property in his possession or control, exclusive of said party’s home or place of abode, for the purpose of inspecting, measuring, surveying or photographing the property or any designated relevant object or operation thereon; provided, however, the aforementioned entry upon designated land or other property may extend to a party’s home or place of abode if such party be the plaintiff or complainant in a cause of action based on contractor’s or materialmen’s actions involving the construction, repair or improvement of such home or place of abode. If compliance with such order be refused, such books, papers, documents, accounts, letters, photographs, objects or tangible things shall not be given in evidence in the action or proceeding by the party so refusing; and the court may punish the recusant party as for a contempt of court. If a complainant or plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit or dismissal; and if a defendant fails to comply with such order, the court may, on motion, give judgment or decree against him by default or confession. Provided, however, this section shall neither be applicable to the work product of counsel for any party nor to matters of privilege or national security.
  2. The clerks of all county, circuit and chancery courts may issue subpoenas duces tecum without a prior order of the court and a copy of the subpoena shall be served personally or by mail on all attorneys of record in the cause or on any party not represented by an attorney. A subpoena duces tecum may command a person to whom it is directed to produce the books, papers, documents or tangible things designated therein, but on motion the court wherein the cause is pending, in termtime or vacation, promptly and in any event at or before the time specified in said subpoena for compliance therewith (a) may quash or modify said subpoena if it is unreasonable or oppressive, or (b) may condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things. The provisions of this subsection shall be cumulative and additional to any other procedures provided by law.
  3. Chancellors and the judges of all county and circuit courts may order writs of subpoena duces tecum in vacation in the same manner as if allowed in open court. The provisions of this subsection shall be cumulative and additional to any other procedures provided by law.

HISTORY: Codes, 1857, ch. 61, art. 236; 1871, § 815; 1880, § 2277; 1892, § 927; 1906, § 1003; Hemingway’s 1917, § 723; 1930, § 744; 1942, § 1659; Laws, 1900, ch. 97; Laws, 1956, ch. 234 1974, ch. 328, § 1; Laws, 1975, ch. 350, eff from and after passage (approved March 14, 1975).

Cross References —

Withdrawal of exhibits from clerk of court, see §9-13-29.

Power of arbitrators in certain arbitration proceedings to issue subpoenas to compel production of books, records, documents and other evidence, see §11-15-117.

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.

Clerk refusing to give copy of papers, see §97-11-17.

Rule covering the issuance and service of subpoena duces tecum, see Miss. R. Civ. P. 45.

JUDICIAL DECISIONS

1. In general.

2. Bills of discovery.

3. Inspection of records, etc.

4. Privileged matter.

5. Subpoena duces tecum.

1. In general.

This section is penal and the powers granted therein should be exercised with caution. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

This section is not mandatory and a trial judge has some discretion in the matter as to whether he will require the production of the documents sought. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

A proceeding may not be dismissed under this section for failure to produce records which would not be admissible in evidence. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

The statute is highly penal and requires an extraordinary state of case to justify the rendition of a judgment thereunder, and the power granted by it should be exercised with great caution to avoid the invasion of the rights of the parties. Equitable Life Assurance Soc. v. Clark, 80 Miss. 471, 31 So. 964, 1902 Miss. LEXIS 280 (Miss. 1902).

2. Bills of discovery.

Where a general demurrer has been sustained to a bill of complaint on the ground that it did not state a cause of action, the complainant had no right to require discovery or production of evidence. Burns v. Washington Savs., 251 Miss. 789, 171 So. 2d 322, 1965 Miss. LEXIS 903 (Miss. 1965).

Under this section one granted leave to file a bill of review for newly discovered evidence is entitled to a full discovery from the other party of all evidence bearing on the merits. Ford v. Commercial Sec. Co., 236 Miss. 130, 109 So. 2d 352, 1959 Miss. LEXIS 302 (Miss. 1959).

Fact that, under statute, party may demand and receive papers and documents from his adversary without necessity of bill of discovery, does not deprive chancery court of jurisdiction of pure bills of discovery. Callender v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119, 1938 Miss. LEXIS 199 (Miss. 1938).

Decree rendered on bill of discovery which sought only discovery of life policy was not res judicata on issue of insurer’s liability in subsequent suit on policy, which insurer allegedly wrongfully claimed was void. Callender v. Lamar Life Ins. Co., 182 Miss. 609, 182 So. 119, 1938 Miss. LEXIS 199 (Miss. 1938).

Discovery is not open to demurrer on ground that litigant had remedy under this section. Citizens' Bank of Hattiesburg v. Tracy, 120 Miss. 413, 82 So. 307, 1919 Miss. LEXIS 99 (Miss. 1919).

3. Inspection of records, etc.

In a proceeding before the Public Service Commission on proposed changes in the gas rate, it was error to deny the gas company’s motion, made pursuant to this section, to examine the raw data upon which the commission witness based his expert opinion. Mississippi Public Service Com. v. Mississippi Valley Gas Co., 358 So. 2d 418, 1978 Miss. LEXIS 2551 (Miss. 1978).

The unsworn motion of the defendants to require the plaintiff to produce copies of his income tax returns does not constitute a showing of good cause for their production. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

The refusal of the trial court, on the unsworn motion of the defendants, to require the plaintiff to produce copies of his income tax returns was not an abuse of discretion. Long v. Sledge, 209 So. 2d 814, 1968 Miss. LEXIS 1471 (Miss. 1968).

Overruling of a motion to require plaintiff to produce records and documents for inspection and copying is reversible error, where the information was necessary to the defense of a property damage action. Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So. 2d 892, 1963 Miss. LEXIS 313 (Miss. 1963).

Refusal of defendant’s request for the production of a written statement of a state’s witness to the district attorney, held no error. Mattox v. State, 243 Miss. 402, 139 So. 2d 653, 1962 Miss. LEXIS 357 (Miss. 1962).

A motion in a negligence action to require the other party to permit inspection, before trial, of photographs which he has caused to be taken should be specific as to the particular photographs desired and what they portray. Dent v. Luckett, 242 Miss. 559, 135 So. 2d 840, 1961 Miss. LEXIS 593 (Miss. 1961).

Although, in an action upon demand notes, the trial court committed error in permitting the defendants, who contended that the name of the payee had been changed and that it was necessary to obtain expert testimony on the question, to submit the notes to an expert, who resided without the court’s jurisdiction, the error was not prejudicial where the plaintiffs did not object thereto, or object to the expert’s testimony on the ground that it was obtained by court order in contravention of statute, and the notes were restored to plaintiffs in the same condition as they were in when delivered to the defendants. Boxwell v. Champagne, 229 Miss. 355, 91 So. 2d 256, 1956 Miss. LEXIS 615 (Miss. 1956).

Where, in prosecution for murder defendant made a motion to be permitted to confer with the state’s witnesses while the jury was being selected and to see the confession which he had signed and a trial court permitted him to confer with the witnesses as soon as selection of the jury was completed and, when state offered confession in evidence, it was first tendered to attorney for defendant and the confession was not admitted until the court first made a preliminary inquiry into its admissibility, the defendant was in no manner prejudiced. Jones v. State, 222 Miss. 387, 76 So. 2d 201, 1954 Miss. LEXIS 655 (Miss. 1954).

Those alleging a resulting trust in real estate were entitled to an inspection and copy of the books and records kept by one since deceased which would reveal information pertinent to the issues. Shepherd v. Johnston, 201 Miss. 99, 28 So. 2d 661, 1947 Miss. LEXIS 374 (Miss. 1947).

In proceeding on motion against a former sheriff and his sureties to charge them with liability for failure to make return of a writ of execution on return day thereof, movant, under this section [Code 1942, § 1659], could have obtained an inspection and copy of the receipt in the hands of such sheriff if the writ had been delivered to his successor. W. T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250, 1941 Miss. LEXIS 53 (Miss. 1941).

Defendant’s motion for subpoena duces tecum to produce notes of evidence, taken by Federal officers investigating killing, for purpose of impeaching witnesses, held properly denied as not stating facts expected to be proved. Eaton v. State, 163 Miss. 130, 140 So. 729, 1932 Miss. LEXIS 23 (Miss. 1932).

Court could order plaintiff, foreign corporation, to permit inspection and taking of copies by defendant of plaintiff’s books and papers. Security Finance Co. v. Tindall, 151 Miss. 516, 118 So. 606, 1928 Miss. LEXIS 357 (Miss. 1928).

On appeal from assessment of taxes, circuit court may require production and inspection of books and papers showing property’s value; where evidence shows taxpayer has books and papers showing value of property, circuit court, on appeal from tax assessment, should order their production. Knox v. L. N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873, 1927 Miss. LEXIS 94 (Miss. 1927).

In an action for privilege tax an application for inspection of defendant’s books should be granted. Robertson v. Greenwood Lumber Co., 127 Miss. 793, 90 So. 487, 1921 Miss. LEXIS 282 (Miss. 1921).

4. Privileged matter.

This section does not apply to documents and other material which are qualifiedly privileged, unless the movant’s evidence shows that the person in possession of the qualifiedly privileged matter has probably exceeded the privilege by publishing it with malice and bad faith, and on a motion to produce, this is an issue for the trial court in its sound discretion. Garraway v. Retail Credit Co., 244 Miss. 376, 141 So. 2d 727, 1962 Miss. LEXIS 459 (Miss. 1962).

Before a movant is entitled to production of qualifiedly privileged mercantile credit reports or other qualifiedly privileged documents, he must present facts which make a prima facie showing that the information in question is material and relevant, that disclosure is necessary or essential to the proper development of the cause of action, that the information is not otherwise available, and that the person against whom the motion is directed has exceeded the qualified privilege by malice and bad faith. Garraway v. Retail Credit Co., 244 Miss. 376, 141 So. 2d 727, 1962 Miss. LEXIS 459 (Miss. 1962).

5. Subpoena duces tecum.

In a products liability case, a trial court abused its discretion by imposing sanctions arbitrarily since the record reflected that an injured party and his expert witness complied with a subpoena duces tecum actually served by a ladder company. The attendance of a nonparty expert witness had to be obtained by a proper subpoena; a subpoena ad testificandum requiring the presence of the expert witness was not served. Laws v. Louisville Ladder, Inc., 146 So.3d 380, 2014 Miss. App. LEXIS 454 (Miss. Ct. App. 2014).

RESEARCH REFERENCES

ALR.

Necessity and sufficiency, under statutes and rules governing modern pretrial discovery practice, of “designation” of documents, etc., in application or motion. 8 A.L.R.2d 1134.

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

Pretrial deposition – discovery of opinions of opponent’s expert witnesses. 86 A.L.R.2d 138.

Discovery, in civil case, of material which is or may be designed for use in impeachment. 18 A.L.R.3d 922.

Assertion of privilege in pretrial discovery proceedings as waiver of privilege at trial. 36 A.L.R.3d 1367.

Attorney’s conduct in delaying or obstructing discovery as basis for contempt proceeding. 8 A.L.R.4th 1181.

Photographs of civil litigant realized by opponent’s surveillance as subject to pretrial discovery. 19 A.L.R.4th 1236.

Right of prosecution to discovery of case – related notes, statements, and reports – state cases. 23 A.L.R.4th 799.

Judgment in favor of plaintiff in state court action for defendant’s failure to obey request or order for production of documents or other objects. 26 A.L.R.4th 849.

Judgment in favor of plaintiff in state court action for defendant’s failure to obey request or order to answer interrogatories or other discovery questions. 30 A.L.R.4th 9.

Rights and remedies of financial institution customer in relation to subpoena duces tecum exception to general prohibitions of state right to financial privacy statute. 43 A.L.R.4th 1157.

Discovery of defendant’s sales, earnings, and profits on issue of punitive damages in tort action. 54 A.L.R.4th 998.

Discoverability of traffic accident reports and derivative information. 84 A.L.R.4th 15.

Criminal liability of attorney for tampering with evidence. 49 A.L.R.5th 619.

Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications. 88 A.L.R.6th 319.

Pretrial discovery of facts known and opinions held by opponent’s experts under Rule 26(b)(4) of Federal Rules of Civil Procedure.33 A.L.R. Fed. 403.

Restriction on dissemination of information obtained through pretrial discovery proceedings as violating Federal Constitution’s First Amendment – federal cases. 81 A.L.R. Fed. 471.

Public access to records and proceedings of civil actions in Federal District Courts. 96 A.L.R. Fed. 769.

Am. Jur.

23 Am. Jur. 2d, Depositions and Discovery §§ 66 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Forms 481 et seq.

8 Am. Jur. Pl & Pr Forms (Rev), Depositions and Discovery, Form 503.1 (Notice of motion–For further order to inspect and copy document or paper).

18 Am. Jur. Pl & Pr Forms (Rev), Motions, Rules, and Orders, Form 28.1 (Motion–To compel–Production of requested materials).

41 Am. Jur. Trials 99, Social Worker Malpractice for Failure to Protect Foster Children (discovery).

41 Am. Jur. Trials 232, Motorboat Propeller Injury Accidents (discovery).

41 Am. Jur. Trials 586, Computer Technology in Civil Litigation (discovery of computer evidence).

CJS.

27 C.J.S., Discovery §§ 153-155, 169, 170 et seq.

Law Reviews.

1989 Mississippi Supreme Court Review: Discovery Sanctions. 59 Miss. L. J. 803, Winter, 1989.

§ 11-1-52. Limitations on charges permitted for photocopying patients’ records by medical provider; physicians to make reasonable charges for depositions; limitations on charges permitted for execution of patient-requested medical record affidavit by medical provider; medical providers to comply with HIPAA.

  1. Any medical provider or hospital or nursing home or other medical facility shall charge no more than the following amounts to patients or their representatives for photocopying any patient’s records: Twenty Dollars ($20.00) for pages one (1) through twenty (20); One Dollar ($1.00) per page for the next eighty (80) pages; Fifty Cents (50¢) per page for all pages thereafter. Ten percent (10%) of the total charge may be added for postage and handling. Fifteen Dollars ($15.00) may be recovered by the medical provider or hospital or nursing home or other medical facility for retrieving medical records in archives at a location off the premises where the facility/office is located.
  2. A physician shall only charge normal, reasonable and customary charges for a deposition related to a patient that the physician is treating or has treated.
  3. Any medical provider, hospital, nursing home or other medical facility shall charge no more than Twenty-five Dollars ($25.00) for executing a medical record affidavit, when the affidavit is requested by the patient or the patient’s representative.
  4. In charging the fees authorized under subsection (1) of this section, the medical provider, hospital, nursing home or other medical facility shall comply with the federal Health Insurance Portability and Accountability Act (HIPAA).

HISTORY: Laws, 2004, 1st Ex. Sess., ch. 2, § 1; Laws, 2006, ch. 588, § 1, eff from and after passage (approved Apr. 21, 2006.).

Amendment Notes —

The 2006 amendment added (3) and (4).

JUDICIAL DECISIONS

1. Unconscionability.

Provision in a nursing home’s admission agreement setting the costs for requested copies at $ 3 per page was in violation of the law; hence, a court ordered the provision stricken from the admission agreement. Trinity Mission Health & Rehab. of Clinton v. Estate of Scott, 19 So.3d 735, 2008 Miss. App. LEXIS 11 (Miss. Ct. App. 2008).

Pursuant to Miss. Code Ann. §11-1-52(1), certain clauses had to be stricken from the admissions agreement as they were unconscionable; thus, the trial court erred in finding the entire admissions agreement to be unenforceable and in denying the nursing home’s motion to compel arbitration. Trinity Mission of Clinton, LLC v. Barber, 988 So. 2d 910, 2007 Miss. App. LEXIS 550 (Miss. Ct. App. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Section 11-1-52 limits collection of copying fees from “patients or their representative”; the county medical examiner/investigator is not the patient or her representative and has the authority, pursuant to Section 41-61-63(2)(a), to inspect and copy medical records of a decedent. Meredith, Jan. 20, 2006, A.G. Op. 06-0611.

§ 11-1-53. Harrison County; commencement of civil actions, change of venue and transfer of cases between districts.

In Harrison County, a county having two (2) judicial districts, all civil actions shall be commenced in each of the two (2) judicial districts against defendants as if each district were a separate county, and a change of venue from either of such districts to the other, and from either district to any county of the state, and from any county to either of said districts, shall be made according to the procedure provided for by the Mississippi Rules of Civil Procedure; and the jurisdiction of said courts of said districts shall be the same as if each district were a separate county; provided, however, that any suit or action which may be brought in either of said districts may be commenced by filing a declaration or complaint or other pleading with the clerk of said courts at either Gulfport or Biloxi, and the said clerk shall issue process thereon, returnable to the court of the proper district, and shall deposit the papers in the case in the office of the proper district; and provided further, that no suit or action shall be dismissed because of the fact that the defendant may be sued in the wrong district, but said case or cause shall, upon motion, be transferred for disposition to the proper district and court thereof.

HISTORY: Codes, 1942, § 2910-14; Laws, 1962, ch. 257, § 14; Laws, 1991, ch. 573, § 13, eff from and after July 1, 1991.

Cross References —

Change of venue in jury cases in chancery court, see §11-5-5.

Change of venue in counties having two judicial districts, see §11-11-59.

Rule governing change of venue, see Miss. R. Civ. P. 82.

§ 11-1-54. Assessment for filing frivolous claims.

If a party files any pleading in a civil action which in the opinion of the court is frivolous, the court may impose an assessment of not more than One Thousand Dollars ($1,000.00) against each party and attorney of record for the party filing the pleading. Such assessment shall be in addition to any other assessments, penalties or sanctions authorized by law or otherwise. The proceeds of any assessment imposed under this section shall be paid to the Mississippi Volunteer Lawyers Project, Inc.

HISTORY: Laws, 2002, 3rd Ex. Sess., ch. 4, § 13, eff from and after Jan. 1, 2003.

RESEARCH REFERENCES

Law Reviews.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

§ 11-1-55. Authority to impose condition of additur or remittitur.

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

HISTORY: Codes, 1942, § 1686.5; Laws, 1971, ch. 396, § 1; Laws, 1972, ch. 411, § 1, eff from and after passage (approved April 27, 1972).

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Procedure in supreme court for motions to correct judgment or retax cost, see Miss. R. App. P. 36.

JUDICIAL DECISIONS

1. In general.

2. Particular cases—Additur.

3. —Remittitur.

1. In general.

Any party aggrieved by the amount of damages awarded pursuant to a jury verdict is allowed to file a motion for additur or remittitur under Miss. Code Ann. §11-1-55. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

If the trial judge grants a motion for an additur or remittitur, such grant of an additur or remittitur is to take effect only if accepted by all the parties; if all the parties do not agree, then each has the right to either demand a new trial on damages or appeal the order asserting an abuse of discretion on the part of the trial judge. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

Where plaintiff driver was injured when defendant driver struck him from the rear, the record showed he was examined following the accident and was not found to have had any skeletal injuries, that he returned to work the next day, and that not until two months later did he complain of shoulder or neck pain, which was treated with manipulative therapy and anti-inflammatory medications. The record also showed that he had two other work related accidents before filing suit almost three years after the accident; thus, where he obtained a verdict for $ 1500, representing his medical expenses and other minor expenses on the date of the accident, the trial court did not abuse its discretion in denying an additur for medical costs incurred after the accident or lost wages. Colville v. Davidson, 934 So. 2d 1028, 2006 Miss. App. LEXIS 4 (Miss. Ct. App.), cert. denied, 933 So. 2d 982, 2006 Miss. LEXIS 382 (Miss. 2006).

Appellate court held that the trial court did not err in rejecting the facility’s request for remittitur or company’s request for an additur under Miss. Code Ann. §11-1-55 as the jury’s calculation of profits appeared to be based on the evidence. Benchmark Health Care Ctr., Inc. v. Cain, 912 So. 2d 175, 2005 Miss. App. LEXIS 715 (Miss. Ct. App. 2005).

A plaintiff dissatisfied with the amount of recovery, even as enhanced by an additur, may not demand a new trial. Edelen v. Jackson Coca-Cola Bottling Co., 782 So. 2d 1256, 2001 Miss. App. LEXIS 26 (Miss. Ct. App. 2001).

The trial court was obligated to order a new trial 30 days after entry of an additur order where the defendant failed to affirmatively accept the additur during that period. Edelen v. Jackson Coca-Cola Bottling Co., 782 So. 2d 1256, 2001 Miss. App. LEXIS 26 (Miss. Ct. App. 2001).

A defendant has 30 days from the date of entry of an order granting additur to accept the additur, reject the additur and request a new trial, or file an appeal; further, where the defendant takes no action within those 30 days, the trial court must proceed with a new trial on damages. Estate of Berry v. Dahlem, 741 So. 2d 932, 1999 Miss. LEXIS 207 (Miss. 1999).

It is primarily province of jury to determine amount of damages to be awarded, and award will normally not be set aside unless it is so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount, and outrageous. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Party seeking additur must prove his injuries, damages and loss of income; in deciding if burden has been met, court must look at evidence in light most favorable to party in whose favor jury decided, granting that party any favorable inferences that may reasonably be drawn therefrom. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Award of $8,000 in damages for wrongful death of 17-year-old youth who died of accidental gunshot wound was neither unreasonable nor outrageous in light of considerable evidence that youth was almost entirely responsible for bringing about his own death, which occurred after he and friends had been playing with gun. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Abuse of discretion standard applies to Supreme Court’s review of a trial judge’s denial of a motion for additur. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

In order to remand case for an additur on damages, Supreme Court must find that the jury was biased or prejudiced or that the verdict was against overwhelming weight of the evidence. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

The Supreme Court will not vacate or reduce award of damages unless it is so out of line as to shock conscience of court. Ross-King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1996 Miss. LEXIS 128 (Miss. 1996).

For purposes of statute allowing court to impose remittitur, “overwhelming weight of the credible evidence” standard is objective standard. Terex Corp. v. Ingalls Shipbuilding, 671 So. 2d 1316, 1996 Miss. LEXIS 129 (Miss. 1996).

In a new trial on damages only, which was ordered by the trial court in a personal injury action after the defendant refused to accept the trial court’s additur, the plaintiff was not required to prove a causal connection between the defendant’s negligence and his damages; the plaintiff had made the requisite connecting proof in the original trial, and §11-1-55 does not require a plaintiff to “rerun the gauntlet.” Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

Where a trial court has granted an additur or, in the alternative, a new trial on the issue of damages only, the defendant only may elect (1) to reject the additur and have the case retried on the issue of damages only, (2) to appeal to the Supreme Court on grounds that the trial court should not have granted the additur at all or, alternatively, that the additur granted was legally excessive, or (3) to accept the additur and pay the judgment; the plaintiff can only appeal to the Supreme Court arguing that the trial court abused its discretion and that the additur is legally inadequate. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has granted a remittitur or, in the alternative, a new trial on the issue of damages only, the plaintiff only may elect (1) to reject the remittitur and have the case retried on the issue of damages only, (2) to appeal to the Supreme Court on grounds that the circuit court should not have granted the remittitur at all or, alternatively, that the remittitur granted was legally excessive, or (3) to accept the remittitur; in such a case, the defendant’s only procedural avenue is to appeal to the Supreme Court arguing that the trial court abused its discretion and that the remittitur was legally inadequate. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has denied a remittitur, the defendant may appeal to the Supreme Court on grounds that the trial court abused its discretion in failing to order the remittitur and, if the defendant can convince the Supreme Court on that score, the defendant may argue that the damage award be reduced to such an amount as would no longer be contrary to the overwhelming weight of the credible evidence; if the defendant should be successful, the plaintiff would then have the option of accepting the remittitur or going to trial again on the issue of damages only. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

Where a trial court has denied a plaintiff’s motion for an additur, the plaintiff may appeal on grounds that the trial court abused its discretion in failing to order an additur, whereupon it becomes incumbent upon the Supreme Court, if it finds that the trial court did abuse its discretion, to order an additur up to the point where the verdict is no longer so low that it is contrary to the overwhelming weight of the credible evidence; the right to accept the additur (and pay the judgment) on pain of a new trial on damages only lies exclusively with the defendant. Odom v. Roberts, 606 So. 2d 114, 1992 Miss. LEXIS 559 (Miss. 1992).

The scope of appellate review under §11-7-213[Repealed] is limited to determining whether the trial court abused its discretion in granting a motion for new trial where the plaintiff refuses to accept an additur. State Highway Com. v. Warren, 530 So. 2d 704, 1988 Miss. LEXIS 422 (Miss. 1988).

Additurs represent a judicial incursion into the traditional habitat of the jury and, therefore, should never be employed without great caution. Gibbs v. Banks, 527 So. 2d 658, 1988 Miss. LEXIS 294 (Miss. 1988).

Statute gives party right to present cross-appeal notwithstanding his acceptance of remittitur in Circuit Court, so action of accepting remittitur does not constitute waiver of right to complain of remittitur on appeal. Life Ins. Co. v. Allen, 518 So. 2d 1189, 1987 Miss. LEXIS 2975 (Miss. 1987).

Trial judge’s authority to enter a remittitur or an additur exists where the nature of the damage award at issue is punitive or exemplary. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

Motions challenging quantum of punitive damages and seeking either remittitur or additur are subject to same rules as motions challenging amount of damage awards generally. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

When a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial. Screws v. Parker, 365 So. 2d 633, 1978 Miss. LEXIS 2425 (Miss. 1978).

Before allowing an additur to a jury verdict for damages, the trial court must determine that the jury verdict was so inadequate under the facts of the case as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. Standard Products, Inc. v. Patterson, 317 So. 2d 376, 1975 Miss. LEXIS 1735 (Miss. 1975).

Where the court finds the damages are inadequate and orders an additur, this impinges on the right to trial by jury, and the defendant has the option of agreeing to pay the added amount beyond that which the jury gave, or submitting to a new trial on the question of damages only. Altom v. Wood, 298 So. 2d 700, 1974 Miss. LEXIS 1565 (Miss. 1974), overruled, Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

The same rule applies in determining whether an additur is proper as applies in determining if the amount of damages awarded is excessive. Smith v. Washam, 288 So. 2d 20, 1974 Miss. LEXIS 1837 (Miss. 1974).

Although, unlike remittitur, the theory and practice of which have been a part of our jurisprudence for many years, the power of additur is new to the courts of Mississippi, but the legal principles involved with additur are the same as those involved with remittitur. Biloxi Electric Co. v. Thorn, 264 So. 2d 404, 1972 Miss. LEXIS 1360 (Miss. 1972).

2. Particular cases—Additur.

Circuit court did not abuse its discretion in denying a motor vehicle accident victim’s motion for an additur because the amount of the jury’s award of damages to the victim was not so inadequate as to shock the conscience and to indicate bias, passion, and prejudice on the part of the jury. Stockett v. Classic Manor Builders, Inc., 226 So.3d 620, 2017 Miss. App. LEXIS 536 (Miss. Ct. App. 2017).

Trial court did not abuse its discretion in denying a motor vehicle accident victim’s post-trial motion for additur because the amount, reasonableness, and necessity of the victim’s damages were contested and the jury determined the weight and worth of the testimony, the credibility of witnesses, and the reasonableness and necessity of the damages in awarding the victim’s total damages. Furthermore, the verdict was not so inadequate as to shock the conscience and to indicate bias, passion, and prejudice on the part of the jury. Anderson v. Salaam, — So.3d —, 2019 Miss. App. LEXIS 469 (Miss. Ct. App. Sept. 24, 2019).

Circuit court properly awarded damages to an injured passenger and, inter alia, denied his motion for an additur because there was ample evidentiary support for the verdict returned by the jury where it was presented with the passenger’s conflicting sworn testimony concerning his prior medical condition and previous injuries, and evidence that called into question the credibility of the expert-medical testimony presented on his behalf. Reel v. Warren, 232 So.3d 736, 2017 Miss. App. LEXIS 302 (Miss. Ct. App.), cert. denied, 229 So.3d 713, 2017 Miss. LEXIS 502 (Miss. 2017).

In an inverse condemnation proceeding, it was not error to deny a landowner’s motion for additur because substantial evidence supported the jury’s award. Bay Point Props. v. Miss. Transp. Comm'n, 201 So.3d 1046, 2016 Miss. LEXIS 282 (Miss. 2016), cert. denied, — U.S. —, 137 S. Ct. 2002, 198 L. Ed. 2d 750, 2017 U.S. LEXIS 4057 (U.S. 2017).

Trial court did not err in denying a motion for additur where the jury awarded plaintiff approximately $3,000 less than requested, there was testimony that called into question some of plaintiff’s claims damages, and the jury was instructed to consider plaintiff’s negligence in its determination of damages. Wetzel v. Sears, 214 So.3d 1092, 2016 Miss. App. LEXIS 286 (Miss. Ct. App. 2016), cert. denied, — So.3d —, 2017 Miss. LEXIS 101 (Miss. 2017).

Trial court’s finding that a jury could have found that plaintiff’s injuries in an automobile accident did not warrant medical treatment over and above what was received at the emergency room supported the denial of additur and did not constitute an abuse of discretion. Crowell v. Burchfield, 168 So.3d 1052, 2013 Miss. App. LEXIS 666 (Miss. Ct. App. 2013).

In a personal injury action involving a rear-end vehicle collision, a trial court did not abuse its discretion by denying a motion for an additur by driver 1, who was in the stopped vehicle, was not an abuse of discretion because while driver 1’s medical bills established a presumption that those bills were reasonable and necessary for the treatment of her injuries, the medical bills were not prima facie evidence that the accident was the proximate cause of driver 1’s injuries. Downs v. Ackerman, 115 So.3d 785, 2013 Miss. LEXIS 350 (Miss. 2013).

Trial court did not abuse its discretion in denying a subcontractor’s (SC’s) motion for additur, Miss. Code Ann. §11-1-55, in the SC’s breach of contract action against a general contractor (GC), wherein the jury awarded the SC $ 41,500 rather than the $ 165,068.82 sought by the SC, because the GC disputed the $ 80,993.82 in costs presented by the SC, challenged the alleged $ 84,075 lost profits and the reasonableness of a near ten percent profit, and the award was not so inadequate as to shock the conscience. DC General Contractors, Inc. v. Slay Steel, Inc., 109 So.3d 577, 2013 Miss. App. LEXIS 50 (Miss. Ct. App. 2013).

In a personal injury action, the trial court did not err in failing to impose an additur, pursuant to Miss. Code Ann. §11-1-55 (Rev. 2002), because the defendant provided sufficient evidence in support of its case from which the jury could have reasonably concluded that the plaintiff’s personal injuries were not caused by the defendant’s negligence. Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 2011 Miss. App. LEXIS 240 (Miss. Ct. App. 2011).

Law was clear that the stopped driver was entitled to all past, present, and future medical damages caused by the other driver’s negligence and the trial court erred in denying the stopped driver’s motion for a new trial on the sole issue of damages. The discrepancy between the amount of damages that the stopped driver requested and the much lower verdict, coupled with the continuous requests from the jury while in deliberation, suggested that the jury was confused by the jury instructions or departed from its oath, and that the verdict was a result of bias, passion, and prejudice. Thompson v. Nguyen, 86 So.3d 251, 2011 Miss. App. LEXIS 44 (Miss. Ct. App. 2011), rev'd, 86 So.3d 232, 2012 Miss. LEXIS 195 (Miss. 2012).

In an action for damages, where here was no finding that the jury was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence, the trial court abused its discretion in ordering additur under Miss. Code Ann. §11-1-55 (Rev. 2002). Evidence supported the jury’s verdict and the verdict was not so unreasonable as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous. Miss. State Fedn. of Colored Women's Club Hous. for the Elderly in Clinton, Inc. v. L. R., 62 So.3d 351, 2010 Miss. LEXIS 657 (Miss. 2010).

In a negligent entrustment action, the appellate court lacked jurisdiction to hear the owner of an utility terrain vehicle’s appeal of a motion for judgment notwithstanding the verdict before the trial court had an opportunity to rule on the injured passenger’s second request of a new trial on damages following her rejection of a proposed additur. Davis v. Walters, 54 So.3d 272, 2010 Miss. App. LEXIS 221 (Miss. Ct. App. 2010), cert. dismissed, 2011 Miss. LEXIS 106 (Miss. Feb. 17, 2011).

Trial court’s order granting the additur simply found that the motion was well taken and should have been granted, but the trial court’s failure to indicate its specific findings in granting the additur was an abuse of discretion; however, that did not preclude the trial court, on remand, from granting the additur. Rather, if the trial court chose so, there had to be adequate findings to support the additur, and thus, the appellate court remanded the case to the trial court to either reinstate the jury’s verdict or consider the additur in accordance with the applicable statutory guidance. J. Criss Builder, Inc. v. White, 35 So.3d 541, 2009 Miss. App. LEXIS 698 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 266 (Miss. 2010).

Trial court did not err in not granting an additur to plaintiff in a personal injury action against the Mississippi DOT after a vehicle that plaintiff was traveling in was struck by a rock that was thrown from a MDOT employee bushhogging along the highway because plaintiff’s physician never unequivocally stated that the accident accelerated plaintiff’s need to have a total knee replacement. Potts v. Miss. DOT, 3 So.3d 810, 2009 Miss. App. LEXIS 85 (Miss. Ct. App. 2009).

Amount awarded by the jury to each wrongful death beneficiary on their respective claim of loss of society and companionship was not against the great weight of the evidence presented during the second trial of the case and the jury verdict was not tainted as a result of bias, prejudice, or passion, so the beneficiaries’ request to increase the jury verdict, either through altering the judgment, additur, or new trial had to be denied. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

In an injured party’s negligence suit against a driver regarding an automobile accident, where the jury returned a verdict in favor of the injured party for $50,000, it was not an abuse of discretion to deny the injured party’s motion for a new trial or, in the alternative, an additur, because there was substantial evidence in the record to support the jury’s verdict based on, inter alia, the severity of the impact and the injured party’s conduct. Dobbins v. Vann, 981 So. 2d 1041, 2008 Miss. App. LEXIS 273 (Miss. Ct. App. 2008).

Denial of the appellant driver’s motion for an additur in her action against the appellee driver for damages stemming from an accident was proper because the jury’s award was not erroneous simply because the jury did not believe that appellant sustained over $40,000 in damages as a result of her accident with appellee. Crews v. Mahaffey, 986 So. 2d 987, 2007 Miss. App. LEXIS 827 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 372 (Miss. 2008).

In an injured passenger’s suit arising from a three-vehicle accident, by rejecting the circuit court’s additur under Miss. Code Ann. §11-1-55, the driver and the insurer effectively opted for a new trial on damages; because that new trial on damages had yet to occur, there was no final judgment, and the matter was not ripe for appellate review. Henson v. Riggenbach, 982 So. 2d 432, 2007 Miss. App. LEXIS 712 (Miss. Ct. App. 2007).

In a personal injury case, a trial court did not abuse its discretion in denying a motion for an additur under Miss. Code Ann. §11-1-55 where, although it was undisputed that an injured party had a physical impairment and pain and suffering due to a fall, a property owner introduced contradictory evidence as to the amount of damages; most of the injured party’s testimony had been impeached through several sources, such as other witnesses and recordings of his activities. Quinn v. President Broadwater Hotel, LLC, 963 So. 2d 1204, 2007 Miss. App. LEXIS 286 (Miss. Ct. App. 2007).

Because an expert in an eminent domain action had little or no knowledge as to the valuation of a business sign based on the cost approach, his testimony based on a quote from a sign company should have been stricken since he was merely acting as a conduit for hearsay about another expert’s opinion, in violation of Miss. R. Evid. 703; however, additur was not an appropriate remedy in this case because the jury verdict was based on inadmissible evidence. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

Additur was not appropriate in an eminent domain case because the damages awarded to two land owners were not contrary to the overwhelming weight of the evidence; the admissibility of an expert’s opinion regarding the value of the land was waived, so the jury properly took into account the valuation evidence presented by both parties in making its decision. Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 2007 Miss. App. LEXIS 225 (Miss. Ct. App. 2007).

In an action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. §§ 621-634, where the appellate court held that the former employee was entitled to prejudgment and post-judgment interest, the appellate court also found that contrary to the employer’s assertion that the former employee was entitled to 35 months of back pay, the period of entitlement was 47 months. Therefore, an additur in the latter respect was warranted, and on remand, the trial court was also to consider what additur, if any, was required to reimburse the former employee for lost insurance and vacation benefits. Cash Distrib. Co. v. Neely, 947 So. 2d 317, 2006 Miss. App. LEXIS 6 (Miss. Ct. App. 2006), aff'd, 947 So. 2d 286, 2007 Miss. LEXIS 23 (Miss. 2007).

Due to its failure to affirmatively accept an additur within 30 days of the trial court’s order, a vehicle owner effectively acceded to a new trial limited to damages only where (1) the record revealed that the trial judge’s intent was to condition the denial of a motion for a new trial upon the owner’s acceptance of the additur, (2) the record was silent as to whether the owner affirmatively accepted or rejected the additur within the requisite time period, and (3) there was no evidence in the record to suggest that the owner ever paid the judgment as ordered by the trial judge. Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 961, 2005 Miss. App. LEXIS 442 (Miss. Ct. App. 2005), aff'd, 947 So. 2d 900, 2007 Miss. LEXIS 14 (Miss. 2007).

In a medical malpractice case, doctors were liable for leaving a five-inch hemostat in the patient’s body during surgery. The jury properly awarded damages to the patient in the amount of $ 10, 000, which exceeded the cost of the surgery to remove the hemostat; the patient was not entitled to an additur. Williams v. Gamble, 912 So. 2d 1053, 2005 Miss. App. LEXIS 249 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 677 (Miss. 2005).

Jury properly awarded zero damages because there was more than sufficient evidence to justify a finding that tenants had either failed to mitigate their damages, or that their purchase of a home with a long-term mortgage was not a reasonably foreseeable consequence of the property management company’s negligence in telling the tenants that they would have to move from the apartment complex, or both; thus, under Miss. Code Ann. §11-1-55, the court affirmed the trial court’s order denying the tenant’s post-trial motion for an additur, or alternatively, a new trial on damages. Patterson v. Liberty Assocs., L.P., 910 So. 2d 1014, 2004 Miss. LEXIS 1456 (Miss. 2004).

Where decedent was killed by a tractor trailer while attempting to cross a two-lane highway, the jury found the driver of the tractor trailer and his company 30% at fault and awarded plaintiff $ 81,000. Plaintiff’s motion for judgment notwithstanding the verdict on damages only or, in the alternative, for a new trial on damages, was properly denied; the jury was not confused in determining damages and liability. Wells v. Tru-Mark Grain, Inc., 895 So. 2d 181, 2004 Miss. App. LEXIS 1085 (Miss. Ct. App. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, the trial court did not err by denying the property owner’s post-trial motion for an additur because the verdict was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

In a premises liability case, while a trial court did not comply with the technical requirements of Miss. Code Ann. §11-1-55 when it granted additur, in that it did not explicitly find that the jury’s damage award was against the overwhelming weight of the evidence, it was reasonable to conclude from the trial court’s order that the court nonetheless found the award inadequate for this reason, and the statute allowed the Supreme Court to make this finding. Gaines v. K-Mart Corp., 860 So. 2d 1214, 2003 Miss. LEXIS 821 (Miss. 2003).

In a trial to set value for landowners’ property taken by the State, the evidence presented – including videotapes and photographs of the owners’ property, plus testimony from three different experts in relevant fields – all provided substantial evidence to support the jury award to the landowners, and the trial court did not abuse its discretion in denying the landowners’ motion for additur or new trial. Gautier v. Miss. Transp. Comm'n, 839 So. 2d 588, 2003 Miss. App. LEXIS 154 (Miss. Ct. App. 2003).

The trial court properly granted additur in an action to recover for injuries sustained in a motor vehicle accident where the plaintiff presented evidence of over $6,000 in medical bills, but the jury awarded only $400, since the defendant failed to rebut the reasonableness of the plaintiff’s medical bills where she relied on speculation and attempts to attack the credibility of the plaintiff’s witnesses, but failed to present any testimony that showed that the medical bills were unfair, unreasonable, or unnecessary. Boggs v. Hawks, 772 So. 2d 1082, 2000 Miss. App. LEXIS 559 (Miss. Ct. App. 2000).

The court affirmed upon condition of acceptance of additur by the defendant where the jury verdict did not fully compensate the plaintiff for his medical expenses or allow anything for pain and suffering and the defendant failed to rebut the reasonableness and necessity of the plaintiff’s medical bills and, instead, her attorney inflamed the jury with arguments for which he had no evidentiary support. Hubbard v. Canterbury, 805 So. 2d 545, 2000 Miss. App. LEXIS 143 (Miss. Ct. App. 2000).

The trial court did not err in refusing to order additur in an action arising from an automobile accident where the issue of the existence of meaningful physical injury or pain and suffering was disputed. Rose v. Clenney, 748 So. 2d 172, 1999 Miss. App. LEXIS 455 (Miss. Ct. App. 1999).

The court directed a new trial on damages unless the defendants accepted an additur of $10,000 where (1) the jury’s award of $2,900 was only $65 more than the plaintiff’s medical expenses, and (2) after reduction for comparative fault, the award was less than the medical expenses and left nothing for pain and suffering. Maddox v. Muirhead, 738 So. 2d 742, 1999 Miss. LEXIS 141 (Miss. 1999).

A jury award of $5,000 was appropriate therefore, additur was not proper where (1) the plaintiff had no visible injuries at the time of the accident, stated that he was not hurt, did not see a doctor until 11 days afterwards, and had total medical bills of $1,579.50, (2) there was no evidence regarding the cost of repairs made to the plaintiff’s car, (3) post-accident surgery to re-sect the plaintiff’s sternoclavicular joint may not have related to the accident (4) the additur appeared to have been granted based on the trial judge’s pre-trial evaluation of the case, as well as his admitted “disgust” with the jury for only deliberating 20 minutes. Anne Cook Interior Designs v. Sanders, 733 So. 2d 187, 1998 Miss. LEXIS 630 (Miss. 1998).

In an incident in which a truck rear-ended a car, the trial court correctly awarded an additur of $140,000 to the jury’s verdict of $67,000 because the jury was obviously influenced by bias, prejudice, or passion and the damages were contrary to the overwhelming weight of credible evidence which showed over $42,000 in medical bills, loss of wages from the date of the accident until the end of trial of more than $82,000, which coupled with a life expectancy of 22.9 years would result in a future income loss of $297,000. Jack Gray Transp., Inc. v. Taylor, 725 So. 2d 898, 1998 Miss. LEXIS 314 (Miss. 1998).

Trial judge did not abuse discretion in denying motion for additur by worker who sued oil company to recover for injuries suffered in drilling accident, was found by jury to have suffered $500,000 in damages, and was also determined to have been 75% at fault as between himself and oil company; there was nothing in the record to indicate jury was biased or prejudiced, while the finding on worker’s own negligence was supported by testimony that he was perhaps standing too close to the operation, and the finding as to total damages was not against overwhelming weight of the evidence. McBride v. Chevron U.S.A., 673 So. 2d 372, 1996 Miss. LEXIS 132 (Miss. 1996), modified, 1996 Miss. LEXIS 271 (Miss. May 23, 1996).

Compensatory award of $1,000 in plaintiff’s suit for assault, invasion of privacy, and negligence against bail bondsmen who entered her apartment was not against the weight of the evidence and was not the product of bias, passion, or prejudice, and thus plaintiff was not entitled to additur; plaintiff put on no proof of the severity of her injuries, nor of lost wages or other damages. Wallace v. Thornton, 672 So. 2d 724, 1996 Miss. LEXIS 58 (Miss. 1996).

A personal injury plaintiff was entitled to an additur in the amount of $2,000 where there was uncontradicted testimony that his knee injury caused him pain and suffering and had resulted in a 10 percent impairment to his left leg, and the jury’s verdict was only $20.80 over his alleged special damages. Harvey v. Wall, 649 So. 2d 184, 1995 Miss. LEXIS 29 (Miss. 1995).

A personal injury plaintiff was entitled to an additur in the amount of $11,765.50 where the jury awarded the plaintiff $11,762.50 which was the exact amount of his medical expenses, and the plaintiff had put on proof that his damages included not only medical expenses but also some pain and suffering. Rodgers v. Pascagoula Public School Dist., 611 So. 2d 942, 1992 Miss. LEXIS 825 (Miss. 1992).

A trial court in a personal injury action did not err when it ordered an additur of $400,000 where the court found calculable lost wages, fringe benefits and past medical expenses approaching $1,178,000, and the jury returned a general verdict for the plaintiff in the amount of $100,000. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

A trial court did not err in failing to grant an additur to the plaintiff in a negligence action arising from an automobile collision in which the defendant rear-ended the plaintiff even though the amount of the verdict was less than half of the plaintiff’s medical expenses, where the plaintiff also sustained injuries in a second automobile accident six months after the first accident, the plaintiff drove away from the first accident but was transported to the hospital in an ambulance after the second accident, the plaintiff’s chiropractor testified that the plaintiff had recovered considerably from the first accident and had no complaints of pain immediately preceding the second accident, the plaintiff sought only chiropractic treatment after the first accident but underwent a series of diagnostic tests, chiropractic treatment, and visits to medical doctors after the second accident, and the plaintiff produced no documentation verifying employment or rate of pay. Brake v. Speed, 605 So. 2d 28, 1992 Miss. LEXIS 418 (Miss. 1992).

A plaintiff in a personal injury action was not entitled to an additur under §11-1-55 to increase a $2,000 damages award, even though the plaintiff had introduced medical bills incurred in the treatment of his injuries which totalled $2,085.90 and he claimed that the jury had failed to consider his claims for pain, suffering and lost wages, where it was apparent that the jury believed that the plaintiff was somewhat responsible for his own injuries and accordingly reduced his award of damages to the amount of $2,000; a determination that the jury was incorrect in assessing the plaintiff’s contributory negligence would be tantamount to holding that a jury is to be instructed that it must return a verdict for all alleged damages, which is not a proper statement of the law. Leach v. Leach, 597 So. 2d 1295, 1992 Miss. LEXIS 217 (Miss. 1992).

A personal injury plaintiff was entitled to an additur of $10,000 where the $3,000 jury verdict was less than $600 above the plaintiff’s actual medical expenses and there was undisputed medical evidence that the plaintiff had suffered a very disabling back injury. Brown v. Cuccia, 576 So. 2d 1265, 1991 Miss. LEXIS 95 (Miss. 1991).

An additur of $30,000 to a jury finding of $30,000 was required where the injured plaintiff proved special damages in the amount of $28,682.70, the plaintiff received considerable injuries from the accident, including a deep tear in his kidney and a laceration of the liver and spleen, and, several months after the accident, the plaintiff had a limp and complained of pain in his leg and tenderness in his thigh area, since the jury’s finding obviously ignored the categories of past and future pain and suffering and permanent partial disability. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

Trial court did not erred in denying motion for additur or, in alternative, new trial, where it could not be said that jury’s verdict either evinced bias, prejudice, or passion, or was contrary to overwhelming weight of credible evidence, where there was substantial evidence to support jury’s resolution of factual disputes. Bass v. Montgomery, 515 So. 2d 1172, 1987 Miss. LEXIS 2910 (Miss. 1987).

Judgment of circuit court granting additur was proper where jury award of $1000 was so inadequate to “strike mankind at first blush as being unreasonable and outrageous”, and additur of $2000 was proper exercise of discretion considering testimony that plaintiff had pre-existing degenerative vertebra condition, or osteoarthritis condition. James v. Jackson, 514 So. 2d 1224, 1987 Miss. LEXIS 2872 (Miss. 1987).

The trial court properly ordered additur under §11-1-55 where it was evident that the jury failed to compensate defendant for the pain and suffering and permanent impairment sustained by him. City of Jackson v. Ainsworth, 462 So. 2d 325, 1984 Miss. LEXIS 2057 (Miss. 1984).

Additur would be entered increasing judgment for a personal injury victim to $3,000, where defendant admitted liability for the accident, and where the jury verdict of $364 in damages was inadequate and contrary to the weight of the evidence, which included uncontradicted evidence of actual damages consisting of $285, as well as plaintiff’s testimony concerning problems she had had since the collision, further medical bills, and 52 days lost from work as a bus driver. Polk v. Amoco Production Co., 430 So. 2d 417, 1983 Miss. LEXIS 2566 (Miss. 1983).

In an eminent domain proceeding under §11-27-83 in which the state acquired .18 of an acre of land leased by a church, the trial court erred in ordering a $10,000 additur to the jury verdict of $7,500 where the church would not lose any building or permanent structure on the taken property, the state had no plans to pave the land taken or place any structure upon it, the highest and best use of the property was for church purposes and not for commercial purposes, and the land taken was property in which the church only held a remaining 20-year leasehold interest. Mississippi State Highway Com. v. Antioch Baptist Church, Inc., 392 So. 2d 512, 1981 Miss. LEXIS 1900 (Miss. 1981).

In a personal injury action by a railroad employee against his employer and a company through whose property the railroad had a right of way, a jury verdict of $23,052.21 would be increased to $50,000 where the evidence established that the plaintiff had been a switchman for the railroad for all his working life, that he had an eighth-grade education, that his injuries prevented him from doing heavy physical work, that he had continually failed despite numerous attempts to find any employment, and that, since his injury, he had lost $89,368.68 in wages; however, because the jury had found the plaintiff to be 50 percent contributorily negligent, the total verdict of $50,000 would be reduced to $25,000. Cash v. Illinois C. G. R. Co., 388 So. 2d 871, 1980 Miss. LEXIS 2410 (Miss. 1980).

In a wrongful death action against a foreign automobile manufacturer and its local dealer, the trial court committed reversible error in awarding an additur increasing the $40,000 jury verdict to $157,894, where it could not be said that the jury verdict was motivated by passion or prejudice in favor of the foreign automobile manufacturer, or against the local plaintiff, and where the verdict was not so grossly inadequate as to shock the conscience or to reflect a manifest miscarriage of justice; the apparent basis for the additur was the judge’s acceptance in toto of the testimony of an expert economist. Toyota Motor Co. v. Sanford, 375 So. 2d 1036, 1979 Miss. LEXIS 2466 (Miss. 1979).

In an action for personal injuries sustained in an automobile accident, the trial court abused its discretion in ordering a $20,000 additur to a $35,000 jury verdict, where the record revealed that plaintiff’s expenses for medical care and treatment and damage to his truck were less than $3,000, and where his earnings had been reduced as a result of the accident from about $700 to $800 a month to about half that amount. McNair Transport, Inc. v. Crosby, 375 So. 2d 985, 1979 Miss. LEXIS 2411 (Miss. 1979).

Suggestion of additur was appropriate with regard to jury verdict awarding damages of $1,500 for appellant’s personal injuries in auto accident where only $940 of damages was assessed for personal injuries, appellant herself had not been negligent, and injuries were painful and included loss of strength and flexibility of one arm. Adams v. Taylor, 325 So. 2d 912, 1976 Miss. LEXIS 1987 (Miss. 1976).

Where plaintiff victim of an automobile collision had an involvement of the intercostal nerve which prolonged her disability and resulted in more than the usual pain from a rib fracture, and special damages proved by the plaintiff were of the total sum of $1,991, a jury verdict of $1,250 was against the overwhelming weight of the evidence even though plaintiff had previously received $1,500 in settlement of her claim against the driver of her vehicle, and the trial court was correct in providing for an additur of $1,750. Smith v. Washam, 288 So. 2d 20, 1974 Miss. LEXIS 1837 (Miss. 1974).

Circuit court did not abuse its discretion in denying a motor vehicle accident victim’s motion for an additur because the amount of the jury’s award of damages to the victim was not so inadequate as to shock the conscience and to indicate bias, passion, and prejudice on the part of the jury. Stockett v. Classic Manor Builders, Inc., — So.3d —, 2017 Miss. App. LEXIS 536 (Miss. Ct. App. Sept. 12, 2017). Circuit court properly awarded damages to an injured messenger and, interalia, denied his motion for an additurbe cause there was ample evidentiary support for the verdict returned by the jury where it was presented with the passenger’s conflicting sworn testimony concerning his prior medical condition and previous injuries, and evidence that called into question the credibility of the expert-medical testimony presented on his be-half. Reel v. Warren, 232 So.3d 736, 2017 Miss. App. LEXIS 302 (Miss. Ct. App.), cert. denied, 229 So.3d 713, 2017 Miss. LEXIS 502 (Miss. 2017).

3. —Remittitur.

Trial court abused its discretion when it denied a company’s motion for remittitur because the damages awarded went against the overwhelming weight of the evidence; the jury had no evidentiary basis for finding the company liable for more than four times the subcontractor’s claim for unpaid labor and services. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Trial court abused its discretion when it denied a company’s motion for remittitur because the damages awarded went against the overwhelming weight of the evidence; the jury had no evidentiary basis for finding the company liable for more than four times the subcontractor’s claim for unpaid labor and services. Ground Control, LLC v. Capsco Indus., 214 So.3d 232, 2017 Miss. LEXIS 93 (Miss. 2017).

Since the patient was credible and substantiated testimony as to her pain and suffering, testifying that her urine collection bag often leaked causing rashes and embarrassment and she was unable to care for her newborn, the award for pain and suffering which was six-and-a-half times the total special damages was not unreasonable or outrageous and the trial court did not err in denying the doctor’s request for remittitur. Robinson v. Corr, 188 So.3d 560, 2016 Miss. LEXIS 151 (Miss. 2016).

Because the court found that some bills incurred were not necessary and reasonable medical expenses resulting from the accident, it was error to submit those bills to the jury, and an offsetting remittitur was required, and if not accepted, a new trial on damages was necessary. Estate of Miles v. Burcham, 127 So.3d 213, 2013 Miss. LEXIS 646 (Miss. 2013).

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Evidence of the driver’s fractured vertebrae, ongoing pain, and limitation of her former activities did not warrant setting aside the jury verdict as so excessive to indicate bias, passion and prejudice on the part of the jury; therefore, the trial court did not err in denying the employer a new trial or remittitur. APAC Miss., Inc. v. Johnson, 15 So.3d 465, 2009 Miss. App. LEXIS 136 (Miss. Ct. App. 2009).

Motion for remittitur, under Miss. Code Ann. §11-1-55, was properly denied because there was sufficient evidence to preclude a finding that the jury was influenced by bias, passion, and prejudice; the jury’s verdict was just over eleven times the economic or special damages amount, and the patient suffered severe, recurring headaches and lived in a persistent vegetative state for almost two years. Estate of Jones v. Phillips, 992 So. 2d 1131, 2008 Miss. LEXIS 420 (Miss. 2008).

Amount awarded by the jury to each wrongful death beneficiary on their respective claim of loss of society and companionship was neither contrary to the overwhelming weight of credible evidence nor contrary to right reason and there was no showing that the jury verdict was the result of bias, prejudice, or passion, so the court found that the jury verdict should not be disturbed, and that the requested remittitur should be denied. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

District court, who saw and heard witnesses and who studied and ruled on numerous motions and objections dealing with the evidence, did not abuse its discretion in deciding to deny defendant restaurant operator’s new trial remittitur motion because the jury’s awards were not contrary to the overwhelming weight of credible evidence. The district court properly instructed the jury on Mississippi law and applied the proper state-law standard in considering whether the verdict returned was excessive. Foradori v. Harris, 523 F.3d 477, 2008 U.S. App. LEXIS 6937 (5th Cir. Miss. 2008).

In alienation of affection action in which the husband was granted $754,500 in damages from his wife’s boyfriend, the trial court did not abuse its discretion by denying remittitur because the evidence established that the husband lost his home, physical custody of his child, his marriage and society, companionship, aid, services, support, and the child he believed and raised as his daughter; there was no evidence that the jury was influenced by bias, prejudice, or passion or that the damages were contrary to the overwhelming weight of the evidence. Fitch v. Valentine, 959 So. 2d 1012, 2007 Miss. LEXIS 227 (Miss. 2007), cert. denied, 552 U.S. 1100, 128 S. Ct. 911, 169 L. Ed. 2d 730, 2008 U.S. LEXIS 127 (U.S. 2008).

In a debtor’s conversion action against a bank, the trial court abused its discretion in refusing to grant the bank a remittitur on compensatory damages as the compensatory damage award was against the overwhelming weight of credible evidence; the debtor’s statement regarding the “rental value” of certain equipment that was taken was insufficient to support a finding of lost profits, and there was overwhelming evidence that the debtor did not own all the property at issue. Cmty. Bank v. Courtney, 884 So. 2d 767, 2004 Miss. LEXIS 1321 (Miss. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, denial of the company’s motion for remittitur was proper as the verdict was supported by the evidence and in no way evinced bias, prejudice or passion on the part of the jury. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

Award of compensatory damages in favor of the borrower in the borrower’s action for conversion was against the overwhelming weight of credible evidence; thus, the trial court abused its discretion in refusing to grant a remittitur on compensatory damages. Cmty. Bank v. Courtney, 2004 Miss. LEXIS 656 (Miss. June 10, 2004).

Remittitur was ordered in a case involving an employer’s bad faith failure to pay worker’s compensation benefits because the punitive damages awarded were excessive where the evidence did not show that the employer’s conduct met the required degree of reprehensibility under Miss. Code Ann. §11-1-65(1)(a). Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

The trial court did not abuse its discretion in granting a remittitur which reduced the jury’s verdict from $30,000 to $7,500 for injuries resulting from a traffic accident where the plaintiff’s medical expenses were less than $600 and her treating physician testified that he did not believe the plaintiff would still have pain at the time of the trial and did not expect her to have any future medical expenses, notwithstanding the plaintiff’s testimony that she continued to have neck pain and headaches and suffered nervousness and loss of sleep due to the collision. Stringer v. Crowson, 797 So. 2d 368, 2001 Miss. App. LEXIS 226 (Miss. Ct. App. 2001).

In an action arising from a motor vehicle accident, the court refused to order a remittitur where the plaintiff claimed that she incurred medical bills of $569, as well as past, present, and future pain and suffering and mental anguish and she was awarded $29,099 in total damages, or 51 times her medical expenses; though the award was almost three times the greatest multiple found in the cases reviewed by the court, the amount of damages was primarily a concern for the jury and the court therefore deferred to the jury and affirmed the verdict and judgment of the trial court. Cade v. Walker, 771 So. 2d 403, 2000 Miss. App. LEXIS 514 (Miss. Ct. App. 2000).

In an action for assault, battery, and false imprisonment arising from an incident in which the plaintiffs drove their pickup truck across property owned by the defendant and the defendant stopped the truck by firing several shots in the air and then shooting one of the tires, the defendant was not entitled to remittitur where one plaintiff was awarded $50,000 and the other two plaintiffs were each awarded $30,000. Whitten v. Cox, 799 So. 2d 1, 2000 Miss. LEXIS 185 (Miss. 2000).

The court properly granted remittitur in the amount of $112,500 on a jury verdict of $187,500 where (1) the amount of the plaintiff’s lost wages were approximately $19,800, so that $167,700 of the verdict was attributable to pain and suffering, (2) the plaintiff told his physician that his back problem was resolved and that he no longer had pain, and (3) the plaintiff went back to full work and only stopped working after being involved in another accident unrelated to the case at bar. Rawson v. Midsouth Rail Corp., 738 So. 2d 280, 1999 Miss. App. LEXIS 67 (Miss. Ct. App. 1999).

Limiting punitive damages to triple amount of actual damages was arbitrary and improper. Ross-King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1996 Miss. LEXIS 128 (Miss. 1996).

In a wrongful death action arising from the death of an 85-year-old man in an automobile collision, a jury verdict in the amount of $150,000 comported with the evidence and, therefore, a remittitur was not warranted where the damages awarded were not just for the wrongful death of the decedent because the decedent suffered severe pain, suffering and mental anguish for 2 months prior to death as a result of the injuries he sustained in the collision, the decedent had at least 7.3 years of life remaining according to life tables in effect at the time of his death, the plaintiff was the decedent’s only child, and the plaintiff and the decedent were extremely close and communicated daily. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

Order of remittitur was proper where trial judge gave consideration to total circumstances, including aggravating effect of subsequent injuries, where facts considered pertinent in reaching that conclusion were that plaintiff had worked approximately 4 years after accident, damage to plaintiff’s vehicle was approximately $148, and all medical expenses totaled approximately $8,200. Stratton v. Webb, 513 So. 2d 587, 1987 Miss. LEXIS 2831 (Miss. 1987).

In absence of order for new trial, order of court reducing judgment by approximately $225,000 was a judgment notwithstanding verdict and not remittitur as termed by court where court had found evidence was insufficient as matter of law to support verdict. Investors Property Management, Ltd. v. Watkins, Pitts, Hill & Associates, 511 So. 2d 1379, 1987 Miss. LEXIS 2699 (Miss. 1987).

Remittitur of $499,000 in damages was appropriate where, in eminent domain proceeding, it was determined that fast food restaurant was entitled to damages only for actual value of property being taken and not for claimed damage as result of loss of access to frontage road. State Highway Com. v. McDonald's Corp., 509 So. 2d 856, 1987 Miss. LEXIS 2449 (Miss. 1987).

Although, in making the required adjustment of a jury’s verdict, the trial judge technically should have granted a motion for a new trial or denied it on condition of plaintiffs accepting a remittitur, the issuance of a judgment notwithstanding the verdict, which achieved the correct result, was harmless error. Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 1987 Miss. LEXIS 2283 (Miss. 1987).

In a personal injury action where the jury awarded $75,000 to the injured party, the trial judge, who failed to find that the jury’s verdict was so shocking to the conscience that it evinced bias, passion, and prejudice on the part of the jury, or that the verdict was contrary to the overwhelming weight of the credible evidence, abused his discretion in ordering a new trial conditioned on the plaintiff’s acceptance of a remittitur of $35,000. McIntosh v. Deas, 501 So. 2d 367, 1987 Miss. LEXIS 2240 (Miss. 1987).

The nature of damages in a malicious prosecution action will often be difficult to quantify in monetary terms, and where the verdict returned by the jury in such an action is within the evidence, a remittitur will not be ordered. Royal Oil Co. v. Wells, 500 So. 2d 439, 1986 Miss. LEXIS 2565 (Miss. 1986).

Trial judge abused his discretion in ordering a remittitur of $113,400.38 from a $200,000 jury award to pickup truck operator, who received severe injuries when his vehicle was struck by an oncoming 18-wheel tractor trailer, which jack-knifed and knocked the pickup truck off the highway. Holmes County Bank & Trust Co. v. Staple Cotton Cooperative Asso., 495 So. 2d 447, 1986 Miss. LEXIS 2634 (Miss. 1986).

Jury’s verdict awarding $100,000 to a 67 year old, retired man, with a life expectancy of 11.3 years, for injuries sustained while he was held hostage for 35 to 40 minutes in a discount department store by a mentally deranged customer, was excessive, where the total expense of the hostage victim, who was never hospitalized, was only $300.50, and, although he had a one-eighth hearing impairment and some ringing in the ears when the room was quiet, his condition was not rare for a person of his age; since the verdict was clearly against the overwhelming weight of the evidence, the Supreme Court would direct a new trial on damages unless the hostage victim accepted a remittitur of $30,000. Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d 965, 1986 Miss. LEXIS 2528 (Miss. 1986).

Trial judge abused his discretion in ordering a remittitur where amount of jury’s damage award was supported by the evidence. Anchor Coatings, Inc. v. Marine Industrial Residential Insulation, Inc., 490 So. 2d 1210, 1986 Miss. LEXIS 2492 (Miss. 1986).

Supreme Court would decline to reduce a $400,000 punitive damage award against an insurance company where the record failed to furnish any valid reason for doing so, and where the insurance company had persisted over a period of years in the use in its policies of an uninsured motorist exclusion which was in direct violation of state’s public policy. Employers Mut. Casualty Co. v. Tompkins, 490 So. 2d 897, 1986 Miss. LEXIS 2489 (Miss. 1986).

Motion to reduce punitive damages of $1,600,000 assessed by jury is properly denied where amount assessed is less than one percent of financial net worth of defendant. Bankers Life & Casualty Co. v. Crenshaw, 483 So. 2d 254, 1985 Miss. LEXIS 2229 (Miss. 1985), aff'd, 486 U.S. 71, 108 S. Ct. 1645, 100 L. Ed. 2d 62, 1988 U.S. LEXIS 2204 (U.S. 1988).

An award of $1,024,268, when reviewed under the standard set forth in §11-1-55, was not so excessive as to evince bias, prejudice or passion on the part of the jury, or to shock the conscience, in view of the evidence of plaintiff’s prior health and in view of the permanent injury in the record. Jesco, Inc. v. Shannon, 451 So. 2d 694, 1984 Miss. LEXIS 1644 (Miss. 1984).

In a personal injury and slander action for damages sustained by plaintiff in an altercation with a guard at an office, the trial court did not abuse its discretion in overruling defendant’s motion for a new trial on the issue of damages only and in declining to enter a remittitur, where the evidence was undisputed that plaintiff had sustained injury when he was removed from the building by the guard, and where damages of $5,000 were not excessive. Mississippi Power Co. v. Russell, 377 So. 2d 595, 1979 Miss. LEXIS 2524 (Miss. 1979).

In a personal injury action in which the jury awarded plaintiff damages in the amount of $26,000, the trial court abused its discretion in reducing the amount to $13,700 on defendant’s motion for a new trial where plaintiff’s loss of wage earning capacity to age 65 amounted to $124,800. Walton v. Scott, 365 So. 2d 630, 1978 Miss. LEXIS 2424 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 16 A.L.R.4th 238.

Excessiveness or adequacy of damages awarded for injuries causing particular diseases or conditions. 16 A.L.R.4th 736.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sensory or speech organs and systems. 16 A.L.R.4th 1127.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases. 35 A.L.R.4th 441.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death. 35 A.L.R.4th 538.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker. 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations. 47 A.L.R.4th 134.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest. 48 A.L.R.4th 165.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor. 49 A.L.R.4th 1076.

Excessiveness or inadequacy of compensatory damages for defamation. 49 A.L.R.4th 1158.

Damages for breach of contract as affected by income tax considerations. 50 A.L.R.4th 452.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations. 50 A.L.R.4th 787.

Excessiveness or inadequacy of compensatory damages for malicious prosecution. 50 A.L.R.4th 843.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 48 A.L.R.5th 129.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 13.5 (Notice of Motion–Ground–Remittitur).

CJS.

5 C.J.S., Appeal and Error §§ 1027 et seq.

§ 11-1-56. Responsive pleading to precede assignment to a judge.

Civil actions in circuit, chancery and county court shall not be assigned to a judge until at least one (1) defendant has filed a responsive pleading. However, any necessary preliminary matters may be decided by a judge on a separate rotating basis before assignment of the action to a particular judge.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 4, § 8, eff from and after Jan. 1, 2003.

JUDICIAL DECISIONS

1. Court rules.

By the adoption of Miss. Unif. Ch. Ct. R. 1.06, effective May 29, 2003, the Supreme Court of Mississippi has superseded Miss. Code Ann. §11-1-56, exercising its inherent authority to adopt rules of practice, procedure and evidence to promote justice, uniformity, and the efficiency of the courts. In re Unif. Ch. Ct. Rules, 2003 Miss. LEXIS 252 (Miss. May 29, 2003).

§ 11-1-57. Additional provisions applicable to all courts.

All things contained in Chapters 7 and 11 of this title, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

HISTORY: Codes, Hutchinson’s 1848, ch. 53, art. 2 (100); 1857, ch. 61, art. 189; 1871, § 630; 1880, § 1585; 1892, § 629; 1906, § 687; Hemingway’s 1917, § 465; 1930, § 474; 1942, § 1412.

Cross References —

Rules of evidence generally, see §§13-1-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Venue.

3. Process and return.

4. Nonsuit or dismissal.

5. Evidence.

1. In general.

By this section the provisions of the chapter are made applicable to all courts, and this embraces the county court; and, accordingly, conviction on a plea of guilty entered on an amendable affidavit is good and cannot be set aside on certiorari because of a defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

2. Venue.

In view of this section a fraternal benefit association may be sued in the chancery court of the county in which the beneficiary resides. Masonic Ben. Ass'n v. Dotson, 111 Miss. 60, 71 So. 266, 1916 Miss. LEXIS 240 (Miss. 1916).

3. Process and return.

In view of the section and Code 1930, §§ 575, 1397 case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

4. Nonsuit or dismissal.

Where a suit was brought in chancery court for cancelation of a conveyance on the ground that it has never been delivered, the chancellor should have granted the complainant’s motion for voluntary dismissal without prejudice where there was no submission to the chancellor for final decision on merits. Graham v. Graham, 214 Miss. 99, 58 So. 2d 85, 1952 Miss. LEXIS 449 (Miss. 1952).

A complainant in the chancery court has the right under the statute to dismiss his suit without prejudice. This rule applies in all cases where the defendant will not be prejudiced by a dismissal. Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 1917 Miss. LEXIS 137 (Miss. 1917); Adams v. Dean, 74 So. 436 (Miss. 1917); Adams v. Leatherbury, 74 So. 436 (Miss. 1917); Adams v. McInnis, 74 So. 436 (Miss. 1917).

5. Evidence.

Under the provisions of this section Code 1942, § 1469 is applicable to suits in the chancery court. General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So. 2d 845, 1965 Miss. LEXIS 927 (Miss. 1965).

In action of unlawful entry and detainer, introduction in evidence of deed to plaintiff held not objectionable on ground that no copy of deed was filed as exhibit to declaration, since statute (Code 1930, § 3458) made no such requirement. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Statutes requiring copy of writing to be annexed to declaration or bill before evidence of writing may be introduced applies to chancery court as well as to circuit court. Thomas v. B. Rosenberg & Sons, Inc., 153 Miss. 314, 120 So. 732, 1929 Miss. LEXIS 18 (Miss. 1929).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 27- 39, 42- 52.

CJS.

21 C.J.S., Courts §§ 241-257.

§ 11-1-58. Certificate of consultation required in medical malpractice actions; exceptions.

  1. In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that:
    1. The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or
    2. The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by Section 15-1-36 would bar the action and that the consultation could not reasonably be obtained before such time expired. A certificate executed pursuant to this paragraph (b) shall be supplemented by a certificate of consultation pursuant to paragraph (a) or (c) within sixty (60) days after service of the complaint or the suit shall be dismissed; or
    3. The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because the attorney had made at least three (3) separate good faith attempts with three (3) different experts to obtain a consultation and that none of those contacted would agree to a consultation.
  2. Where a certificate is required pursuant to this section only, a single certificate is required for an action, even if more than one (1) defendant has been named in the complaint or is subsequently named.
  3. A certificate under subsection (1) of this section is not required where the attorney intends to rely solely on either the doctrine of “res ipsa loquitur” or “informed consent.” In such cases, the complaint shall be accompanied by a certificate executed by the attorney declaring that the attorney is solely relying on such doctrine and, for that reason, is not filing a certificate under subsection (1) of this section.
  4. If a request by the plaintiff for the records of the plaintiff’s medical treatment by the defendants has been made and the records have not been produced, the plaintiff shall not be required to file the certificate required by this section until ninety (90) days after the records have been produced.
  5. For purposes of this section, an attorney who submits a certificate of consultation shall not be required to disclose the identity of the consulted or the contents of the consultation; provided, however, that when the attorney makes a claim under paragraph (c) of subsection (1) of this section that he was unable to obtain the required consultation with an expert, the court, upon the request of a defendant made prior to compliance by the plaintiff with the provisions of this section, may require the attorney to divulge to the court, in camera and without any disclosure by the court to any other party, the names of physicians refusing such consultation.
  6. The provisions of this section shall not apply to a plaintiff who is not represented by an attorney.
  7. The plaintiff, in lieu of serving a certificate required by this section, may provide the defendant or defendants with expert information in the form required by the Mississippi Rules of Civil Procedure. Nothing in this section requires the disclosure of any “consulting” or nontrial expert, except as expressly stated herein.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 2, § 6, eff from and after Jan. 1, 2003.

JUDICIAL DECISIONS

1. Dismissal for non-compliance proper.

2. Dismissal for non-compliance improper.

3. Applicability.

4. Illustrative cases.

1. Dismissal for non-compliance proper.

Although the state legislature could not promulgate statutes dictating to the judiciary what a party was required to attach to pleadings filed in court, the legislature had constitutional authority to set out pre-suit requirements such as the requirement that a litigant obtain an expert consultation prior to commencing a medical malpractice suit. Where the attorney representing the personal representative of the estate of a decedent in a wrongful death suit against a nursing care facility admitted that he did not consult an expert prior to commencing the lawsuit, the nursing care facility was entitled to a dismissal. Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So. 2d 1179, 2008 Miss. LEXIS 521 (Miss. 2008).

Trial court improperly denied defendant hospital and administrator’s motion to dismiss the daughter’s negligence action due to the daughter’s failure to strictly comply with Miss. Code Ann. §11-1-58; since the daughter obtained the mother’s authorization for medical records after filing suit, she could not act on her mother’s behalf. Cmty. Hosp. v. Goodlett, 968 So. 2d 391, 2007 Miss. LEXIS 528 (Miss. 2007), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Medical malpractice suit was properly dismissed for failure to state a claim because plaintiffs did comply with Miss. Code Ann. §11-1-58 by filing with their complaint either an expert disclosure or a certificate of counsel stating that an expert disclosure had not yet been obtained because of the running of the statute of limitations under Miss. Code Ann. §15-1-36; strict compliance with Miss. Code Ann. §11-1-58 was mandatory, and defendants, a medical center and the estate of a deceased doctor, which had been substituted as a defendant under Miss. R. Civ. P. 25(a)(1) after the doctor’s death and reasserted the defenses raised by the doctor, had both raised as an affirmative defense plaintiffs’ failure to comply with the statute. Caldwell v. N. Miss. Med. Ctr., Inc., 956 So. 2d 888, 2007 Miss. LEXIS 280 (Miss. 2007), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Trial court properly dismissed a wrongful death and negligence action filed by the administratrix of the decedent’s estate against a nursing home as the administratrix failed to comply with Miss. Code Ann. §11-1-58 by failing to timely inform the nursing home that an expert had been consulted by way of an attorney’s certificate of compliance. Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 2006 Miss. LEXIS 301 (Miss. 2006), overruled in part, Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

2. Dismissal for non-compliance improper.

In a medical negligence action, a doctor and a medical center waived the defense of a lack of strict compliance with Miss. Code Ann. §11-1-58 because, although both asserted the defense in their answers, they failed to further assert or pursue the defense until they filed their joint motion to dismiss nearly three years after the action was filed. Meadows v. Blake, 36 So.3d 1225, 2010 Miss. LEXIS 296 (Miss. 2010).

Mississippi Supreme Court is unable to ignore the constitutional imperative that the Mississippi Legislature refrain from promulgating procedural statutes which require dismissal of a complaint, and, particularly, a complaint filed in full compliance with the Mississippi Rules of Civil Procedure; the requirement in Miss. Code Ann. §11-1-58(1)(a) that a complaint be accompanied by a certificate or waiver is such a procedural statute. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Trial court erred in dismissing plaintiffs’ medical negligence action against a physician and a hospital for failure to file with the complaint a certificate of compliance as required by Miss. Code Ann. §11-1-58(1)(a) because the complaint did not need to be dismissed simply because plaintiffs failed to attach a certificate or waiver. Thomas v. Warden, 999 So. 2d 842, 2008 Miss. LEXIS 600 (Miss. 2008).

Medical malpractice plaintiff’s failure to attach a certificate of consultation to her complaint as required by Mississippi Code Annotated section 11-1-58(1)(a) did not mandate dismissal of the cause of action because, under the separation of powers doctrine, only the statute supreme court had the authority to establish procedural rules; as such, the statute was an unconstitutional procedural statute. A medical malpractice complaint, otherwise properly filed in accordance with the Mississippi Rules of Civil Procedure, could not be dismissed and need not be amended simply because a plaintiff failed to attach a certificate of consultation. Ellis v. Miss. Baptist Med. Ctr., Inc., 997 So. 2d 996, 2008 Miss. App. LEXIS 780 (Miss. Ct. App. 2008).

Relative, who served her certificate of review in January 2006 before she filed suit in April 2006, satisfied the pre-suit requirements of Miss. Code Ann. §11-1-58; in accordance with the intervening change in the law, the trial court should not have dismissed the relative’s wrongful death complaint against the doctors and medical center. McClain v. Clark, 992 So. 2d 636, 2008 Miss. LEXIS 515 (Miss. 2008).

3. Applicability.

Complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver; the certificate did not indicate whether the daughter’s attorney consulted with the expert prior to, or after, filing the complaint; if the former, then the daughter was in compliance with the enforceable portion of §11-1-58, and if the latter, then the pretrial statutory requirement was not met, and the trial court had to dismiss the complaint with prejudice. Wimley v. Reid, 991 So. 2d 135, 2008 Miss. LEXIS 456 (Miss. 2008).

Where an employee killed co-workers after being referred to counseling by the employer and an employee assistance provider (EAP), the EAP was not entitled to summary judgment as to negligence claims because pre-suit notice and an expert certification were not required since the claims were for ordinary negligence, not medical malpractice. Tanks v. NEAS, Inc., 519 F. Supp. 2d 645, 2007 U.S. Dist. LEXIS 70334 (S.D. Miss. 2007).

4. Illustrative cases.

Where the patient filed a medical malpractice suit, contending that employees of the medical center were negligent in their examination, assessment, and care of her, proximately causing her stroke, she failed to attach a certificate of compliance to her complaint in accord with Miss. Code Ann. §11-1-58. The patient was permitted to amend her complaint. Moore v. Delta Reg'l Med. Ctr., 23 So.3d 541, 2009 Miss. App. LEXIS 328 (Miss. Ct. App. 2009).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

§ 11-1-59. Damages in medical malpractice actions.

In any action at law against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor to recover damages based upon a professional negligence theory, the complaint or counterclaim shall not specify the amount of damages claimed, but shall only state that the damages claimed are within the jurisdictional limits of the court to which the pleadings are addressed and whether or not the amount of such damages is ten thousand dollars ($10,000.00) or more, or such other minimum amount as shall be necessary to invoke federal jurisdiction if the action is brought in federal court.

HISTORY: Laws, 1983, ch. 425, eff from and after July 1, 1983.

JUDICIAL DECISIONS

1. Pleadings.

In a patient’s medical malpractice suit, defendants’ notice of removal was timely because (1) the patient was prohibited from including an ad damnum clause in the complaint and the facts alleged did not unequivocally establish that the plaintiff was seeking more than $ 75,000, and (2) the patient’s responses constituted an “other paper” because the patient’s evasive response to defendants’ requests for admission, combined with the patient’s manifestation of intent to seek over $ 75,000, was tantamount to a denial of defendants’ requests for admission. Harden v. Field Mem. Cmty. Hosp., 516 F. Supp. 2d 600, 2007 U.S. Dist. LEXIS 28436 (S.D. Miss. 2007), aff'd, 265 Fed. Appx. 405, 2008 U.S. App. LEXIS 3524 (5th Cir. Miss. 2008).

RESEARCH REFERENCES

ALR.

Arbitration of medical malpractice claims. 84 A.L.R.3d 375.

Medical malpractice: “loss of chance” causality. 54 A.L.R.4th 10.

Liability of osteopath for medical malpractice. 73 A.L.R.4th 24.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Liability for medical malpractice in connection with performance of circumcision. 75 A.L.R.4th 710.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during cesarean delivery. 76 A.L.R.4th 1112.

Liability for dental malpractice in provision or fitting of dentures. 77 A.L.R.4th 222.

Liability of chiropractors and other drugless practitioners for medical malpractice. 77 A.L.R.4th 273.

Malpractice involving hysterectomies and oophorectomies. 86 A.L.R.4th 18.

Gynecological malpractice not involving hysterectomies or oophorectomies. 86 A.L.R.4th 125.

Opthalmological malpractice. 30 A.L.R.5th 571.

Medical Malpractice: negligent catheterization. 31 A.L.R.5th 1.

Medical malpractice liability of sports medicine care providers for injury to, or death of athlete. 33 A.L.R.5th 619.

Malpractice: Physician’s liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient. 47 A.L.R.5th 433.

Malpractice in diagnosis and treatment of male urinary tract and related organs. 48 A.L.R.5th 575.

Homicide: Liability where death immediately results from treatment or mistreatment of injury inflicted by defendant. 50 A.L.R.5th 467.

Liability of health maintenance organizations (HMOs) for negligence of member physicians. 51 A.L.R.5th 271.

Malpractice in diagnosis or treatment of meningitis. 51 A.L.R.5th 301.

Am. Jur.

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 45.1 (Complaint, petition, or declaration – Negligence in care of newborn – Loss of society).

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 68.1 (Complaint, petition, or declaration – Allegation – Malpractice).

13A Am. Jur. Pl & Pr Forms (Rev), Hospitals and Asylums, Form 68.2 (Complaint, petition, or declaration – Negligence in care of newborn – Res ipsa loquitur).

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 370 (Complaint, petition, or declaration – Against hospital and physician – Injury to newborn – Loss of society).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 122.1 (Complaint, petition, or declaration – For malpractice – General form – Allegations).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 122.2 (Complaint, petition, or declaration – For malpractice allegation – Loss of consortium).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 124.1 (Complaint, petition, or declaration – For malpractice allegation – Vicarious liability).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 278.3 (Complaint, petition, or declaration – Podiatric malpractice).

19A Am. Jur. Pl & Pr Forms (Rev), Physicians, Surgeons, and Other Healers, Form 293.1 (Complaint, petition, or declaration – Metallic wire left in during surgery – Against physicians and surgeons).

19 Am. Jur. Proof of Facts 2d 285, Physician’s Failure to Perform Timely Cesarean Section.

20 Am. Jur. Proof of Facts 2d 421, Therapist’s Liability for Injury caused by Nonverbal Therapy.

22 Am. Jur. Proof of Facts 2d 1, Medical Malpractice – Use of Hospital Records.

22 Am. Jur. Proof of Facts 2d 721, Plastic Surgeon’s Liability in Cosmetic Surgery Cases.

23 Am. Jur. Proof of Facts 2d 293, Negligence in Use of Diet and Weight Control Drugs in Treatment of Obesity.

25 Am. Jur. Proof of Facts 2d 411, Nurse’s Failure to Give Physician Timely Notice of Patient’s Condition.

25 Am. Jur. Proof of Facts 2d 657, Negligent Diagnosis of Eye Disease.

26 Am. Jur. Proof of Facts 2d 183, Medical Malpractice – Negligence in Postoperative Care of Patient.

26 Am. Jur. Proof of Facts 2d 363, Malpractice of Psychiatric Nurse.

30 Am. Jur. Proof of Facts 2d 95, Brain Injuries Due to Trauma.

34 Am. Jur. Proof of Facts 2d 199, Druggist’s Liability for Improperly Filling Prescription.

36 Am. Jur. Proof of Facts 2d 637, Medical Malpractice: Liability for Negligent Injection or Infusion.

38 Am. Jur. Proof of Facts 2d 445, Vicarious Liability of Physician for Negligence of Another.

38 Am. Jur. Proof of Facts 2d 589, Physician’s Liability for Causing Patient’s Drug Addiction.

39 Am. Jur. Proof of Facts 2d 545, Complications Due to Immobilization.

42 Am. Jur. Proof of Facts 2d 405, Physician’s Failure to Disclose Diagnosis or Test Result.

43 Am. Jur. Proof of Facts 2d 109, Hospital – Acquired Infections.

43 Am. Jur. Proof of Facts 2d 657, Physician’s Failure to Protect Third Party from Harm by Nonpsychiatric Patient.

44 Am. Jur. Proof of Facts 2d 55, Kidney Injuries.

44 Am. Jur. Proof of Facts 2d 499, Medical Malpractice: Electroconvulsive Therapy.

47 Am. Jur. Proof of Facts 2d 1, Malpractice by Emergency Department Physician.

47 Am. Jur. Proof of Facts 2d 525, Medicolegal Malpractice: Wrongful Claim Review by Physician.

1 Am. Jur. Proof of Facts 3d 691, Failure to Diagnose Impending Heart Attack.

4 Am. Jur. Proof of Facts 3d 689, Ophthalmic Malpractice.

8 Am. Jur. Proof of Facts 3d 145, Use of CAT Scans in Litigation.

16 Am. Jur. Proof of Facts 3d 49, Negligence of Optometrist.

23 Am. Jur. Proof of Facts 3d 1, Optician’s Negligence: Proof that an Optician Negligently Dispensed an Optical Device.

25 Am. Jur. Trials 185, Recovery Room Accidents.

30 Am. Jur. Trials 237, Misdiagnosis of Cancer and Loss of Chance.

30 Am. Jur. Trials 437, Countering the Standard Defenses in a Breast Cancer Malpractice Case.

32 Am. Jur. Trials 179, Eye Surgery Malpractice – Cataracts.

32 Am. Jur. Trials 375, Pharmacist Liability.

32 Am. Jur. Trials 547, Medicolegal Malpractice Litigation.

32 Am. Jur. Trials 673, Defective Prosthesis Litigation – Silicone Breast Implant.

35 Am. Jur. Trials 637, Trial Report: Informed Consent to Brain Surgery.

40 Am. Jur. Trials 1, Obstetrical Malpractice.

51 Am. Jur. Trials 375, Trial Report: Negligent Pediatric Care.

52 Am. Jur. Trials 347, Medical Malpractice: Brain – Damaged Infant.

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

§ 11-1-60. Limitation on noneconomic damages in medical malpractice actions; definitions.

  1. For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
    1. “Noneconomic damages” means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term “noneconomic damages” shall not include punitive or exemplary damages.
    2. “Actual economic damages” means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
    1. In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.
    2. In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.

      It is the intent of this section to limit all noneconomic damages to the above.

    3. The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.
  2. Nothing contained in subsection (1) of this section shall be construed as creating a cause of action or as setting forth elements of or types of damages that are or are not recoverable in any type of cause of action.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 2, § 7; Laws, 2004, 1st Ex. Sess., ch. 1, § 2, eff from and after September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004.

Amendment Notes —

The 2004 amendment, 1st Ex Sess, ch. 1, in (1)(a), inserted “disfigurement” in the first sentence, and substituted “shall not include punitive or exemplary damages” for “shall not include damages for disfigurement, nor does it include punitive or exemplary damages” in the second sentence; deleted former (1)(c), which defined “Provider of health care”; rewrote (2); and rewrote former (3) and (4) as present (3).

JUDICIAL DECISIONS

1. Constitutionality.

2. Applicaton.

3. “Plaintiffs.”

4. Erroneous directed verdict.

1. Constitutionality.

Because Miss. Code Ann. §11-1-60(2)(b) does not apply to the verdict, it cannot affect a trial court’s application or non-application of remittitur pursuant to Miss. Code Ann. §11-1-55. Therefore, §11-1-60(2)(b) does not directly conflict with remittitur (a judicial procedure), and does not violate the Mississippi Constitution’s Separation of Powers Clauses, Miss. Const. art. I, §§ 1, 2. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

Court’s reduction of noneconomic damages awarded by a jury was affirmed because Miss. Code Ann. §11-1-60(2)(b) was not shown to be in palpable conflict with the right to have a jury alone find the amount of compensatory damages. The common law jury guarantee was not shown to includes the right to a judgment equal to the jury’s damages finding. Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 2013 U.S. App. LEXIS 4035 (5th Cir. Miss. 2013).

High court declined to answer a certified question regarding the constitutionality of Miss. Code Ann §11-1-60(2), which generally limited non-economic damages to $ 1 million, because it would require speculation and guesswork to determine what portion of the jury’s $ 4 million general verdict represented noneconomic damages. Sears v. Learmonth, 95 So.3d 633, 2012 Miss. LEXIS 422 (Miss. 2012).

2. Applicaton.

Trial court properly applied this section and Miss. Code Ann. §85-5-7(2) to the damages award, finding that the sandblasting company was liable for the damages apportioned to it, which were below the $1 million cap. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

3. “Plaintiffs.”

Miss. Code Ann. §11-1-60(2)(a) instituted a cap on noneconomic damages recoverable by “the plaintiff,” and under Miss. Code Ann. §1-3-33, words written in the singular were to be read in the plural; therefore, a cap on noneconomic damages applied to all plaintiffs who brought a wrongful-death action pursuant to Miss. Code Ann. §11-7-13. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 2007 Miss. LEXIS 649 (Miss. 2007).

4. Erroneous directed verdict.

Record provided evidence from which a reasonable juror could find noneconomic damages; the testimony of two expert witnesses and the employee created a question of fact for the jury with respect to pain, suffering, inconvenience, physical impairment, disfigurement, and loss of the enjoyment of life. From the evidence found in the record, as well as all reasonable inferences which could be drawn from the evidence, viewed in the light most favorable to the employee, it could not be safely said that reasonable and fair-minded jurors in the exercise of impartial judgment could have found only for the employer on the issue of noneconomic damages. Kennedy v. Ill. Cent. R.R. Co., 2010 Miss. LEXIS 14 (Miss. Jan. 7, 2010), op. withdrawn, sub. op., 30 So.3d 333, 2010 Miss. LEXIS 130 (Miss. 2010).

Trial court erred in directing a verdict in favor of an employer in an action under the Federal Employers’ Liability Act, 45 U.S.C.S. § 51 (2009), because reasonable and fair-minded jurors in the exercise of impartial judgment could have found for the employee on the issue of economic damages, as defined under Miss. Code Ann. §11-1-60(1)(a). Kennedy v. Ill. Cent. R.R. Co., 30 So.3d 333, 2010 Miss. LEXIS 130 (Miss. 2010).

RESEARCH REFERENCES

ALR.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription – Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

§ 11-1-61. Expert witness in action against physician.

In any action for injury or death against a physician, whether in contract or in tort, arising out of the provision of or failure to provide health care services, a person may qualify as an expert witness on the issue of the appropriate medical standard of care if the witness is licensed in this state, or some other state, as a doctor of medicine.

HISTORY: Laws, 1990, ch. 440, § 1, eff from and after passage (approved March 21, 1990).

JUDICIAL DECISIONS

1. Conflicts with Rules of Evidence.

2. Illustrative cases.

1. Conflicts with Rules of Evidence.

Miss. Code Ann. §11-1-61 does not conflict with the Mississippi Rules of Evidence, which govern evidentiary matters, including the qualification of expert witnesses, Miss. R. Evid. 702. Blake v. Clein, 903 So. 2d 710, 2005 Miss. LEXIS 235 (Miss. 2005).

2. Illustrative cases.

Finding in favor of the patient in his medical malpractice action was improper where the trial court erred in allowing the testimony of an orthopedic surgeon because that doctor was not qualified to testify as to the standard of care in August of 1995 since he was still in his residency in Austria and had not completed his own orthopedic training at that time. Blake v. Clein, 903 So. 2d 710, 2005 Miss. LEXIS 235 (Miss. 2005).

RESEARCH REFERENCES

ALR.

Propriety of cross-examining expert witness regarding his status as “professional witness”. 39 A.L.R.4th 742.

Compelling testimony of opponent’s expert in state court. 66 A.L.R.4th 213.

Medical Negligence in Extraction of Tooth, Established Through Expert Testimony. 18 A.L.R.6th 325.

Law Reviews.

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

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

§ 11-1-62. Protection of medical professionals who prescribe FDA approved drugs.

In any civil action alleging damages caused by a prescription drug that has been approved by the federal Food and Drug Administration, a physician, optometrist, nurse practitioner or physician assistant may not be sued unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to immunize innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 2, § 3, eff from and after January 1, 2003.

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

§ 11-1-63. Product liability actions; conditions for liability; what constitutes a defective product.

Subject to the provisions of Section 11-1-64, in any action for damages caused by a product, including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty, except for commercial damage to the product itself:

The manufacturer, designer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller:

1. The product was defective because it deviated in a material way from the manufacturer’s or designer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or

2. The product was defective because it failed to contain adequate warnings or instructions, or

3. The product was designed in a defective manner, or

4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and

The defective condition rendered the product unreasonably dangerous to the user or consumer; and

The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product’s usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.

(i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a) (i)2 of this section, the manufacturer, designer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller, the manufacturer, designer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.

An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.

In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, designer or seller shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.

In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, designer or seller shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.

In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer, designer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller:

The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and

The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.

(i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller or designer for the costs of litigation, any reasonable expenses, reasonable attorney’s fees and any damages awarded by the trier of fact unless the seller or designer exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller or designer altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller or designer had actual knowledge of the defective condition of the product at the time he supplied same; or the seller or designer made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.

Subparagraph (i) shall not apply unless the seller or designer has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller.

In any action alleging that a product is defective pursuant to paragraph (a) of this section, the seller or designer of a product other than the manufacturer shall not be liable unless the seller or designer exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or the seller or designer altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller or designer had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product.

Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.

HISTORY: Laws, 1993, ch. 302, § 1; Laws, 2002, 3rd Ex Sess, ch. 4, § 5; Laws, 2004, 1st Ex. Sess., ch. 1, § 3; Laws, 2014, ch. 383, § 1, eff from and after July 1, 2014.

Editor’s Notes —

Laws of 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Section 11-1-64, referred to in the first line of the section, was repealed by Laws of 2004, 1st Ex. Sess., ch. 1, § 7, effective September 1, 2004.

Laws of 2014, ch. 383, § 2 provides:

“SECTION 2. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, at the beginning of the first paragraph, added the words preceding “in any action”; in (g)(i), changed “pursuant to (a)” to “pursuant to paragraph (a)”; and in (g)(ii), replaced “within thirty (30) days of the filing” with “within ninety (90) days of the service.”

The 2004 amendment, 1st Ex Sess, ch. 1, inserted (h), and redesignated former (h) as (i).

The 2014 amendment inserted “including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty” in the introductory paragraph; inserted “designer” or “designer’s” following “manufacturer” or “manufacturer’s” everywhere it appears; and inserted “or designer” following “seller” everywhere it appears.

Cross References —

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Expert testimony.

4. Tobacco products.

5. Substantial change.

6. Adequate warnings.

7. Design defect.

8. — Open and obvious danger.

9. Feasible design alternative.

10. Prima facie case.

11. Evidence.

12. Jury instruction.

13. Asbestos cases.

14. Reliance.

15. Preservation for review.

16. Proximate cause.

17. Innocent seller.

1. In general.

In general, a claimant must make out a prima facie products liability case in Mississippi by showing that: (1) a product is defective; (2) that the defect causes the product to be unreasonably dangerous; (3) that the unreasonably dangerous defect causes the harm complained of; and (4) that the defective condition exists at the time the product leaves the control of the manufacturer or seller. Miss. Code Ann. Section 11-1-63(a) serves as a claimant’s roadmap and provides the basic framework from which claimants classify their particular claims. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

“Defective condition,” required under Miss. Code Ann. §11-1-63(a)(ii), (iii), should be distinguished under the statute from a “defective product,” which would be required under the first part of the statutory claim, §11-1-63(a)(i), if the plaintiff sues under §11-1-63(a)(i)(1), (2), or (3); the “defective condition” considered by §11-1-63(a)(ii) and (iii) is merely the satisfaction of one of four possible elements under §11-1-63(a)(i). Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Summary judgment granted in favor of a manufacturer was affirmed; the individual did not prove causation as required by Miss. Code Ann. §11-1-63(a)(iii) as he failed to establish that someone had followed the manufacturer’s instructions in removing a bearing, but that the instructions were inadequate which caused the axle on his truck to snap and cause his injuries. Harris v. Int'l Truck & Engine Corp., 912 So. 2d 1101, 2005 Miss. App. LEXIS 751 (Miss. Ct. App. 2005).

Recusal was not merited under 28 U.S.C.S. § 455 where district court’s refusal to transfer asbestos litigation to a multi-district litigation court was not motivated by the court’s alleged bias against defendants in asbestos removal litigation and the merits did not favor removal as plaintiffs’ claims under Miss. Code Ann. §11-1-63 clearly permitted retailers to be sued in products liability cases even absent a showing of fault, thus making defendants’ burden of demonstrating no possibility of recovery extremely difficult. Duffin v. Honeywell Int'l, Inc., 2004 U.S. Dist. LEXIS 12856 (N.D. Miss. Apr. 26, 2004).

Plaintiff’s product’s liability suit against a paintball gun manufacturer was properly dismissed on summary judgment, as plaintiff (1) did not prove that the paintball gun that allegedly injured him failed to function as expected; (2) offered no feasible design alternative that would have prevented the alleged injury; (2) knew that protective eyewear was available but chose not to buy any; and (3) was an active participant in shooting paintballs at other vehicles when he allegedly was injured. Clark v. Brass Eagle, Inc., 866 So. 2d 456, 2004 Miss. LEXIS 219 (Miss. 2004).

Plain meaning of the language of the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, is that the statute imposes liability on the manufacturer or seller for warnings that were inadequate at the time of sale, not for warnings that became inadequate at some later time. Therefore, it appears that there is no post-sale duty to warn under the statute. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

In an automobile owners’ products liability action concerning an automobile fire that occurred in 1998, because the automobile manufacturer’s engineer testified that in 1990 the manufacturer knew that leaves could collect in the blower box and cause smoke after contacting a resistor, it was not unreasonable for the jury to find that the leaves could also cause a fire, thereby establishing the owners’ claim for design defect. Hughes v. Ford Motor Co., 204 F. Supp. 2d 958, 2002 U.S. Dist. LEXIS 17092 (N.D. Miss. 2002).

The Mississippi Products Liability Act does not abrogate a statutory cause of action for breach of implied warranty as ground for recovery. Bennett v. Madakasira, 821 So. 2d 794, 2002 Miss. LEXIS 107 (Miss. 2002).

The statute is not an abandonment of strict products liability; although common law strict liability is no longer the authority on the necessary elements of a products liability action, the concept of strict liability is still quite alive within the statute. Huff v. Shopsmith, Inc., 786 So. 2d 383, 2001 Miss. LEXIS 144 (Miss. 2001).

The statute was not intended to abrogate the long established common law theory of negligence or the statutory cause of action for breach of implied warranty. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

This section was not intended to abrogate the long established common law theory of negligence or the statutory cause of action for breach of implied warranty. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

A feasible design alternative to an allegedly defective design is a prerequisite under this section. Hammond v. Coleman Co., 61 F. Supp. 2d 533, 1999 U.S. Dist. LEXIS 13701 (S.D. Miss. 1999), aff'd, 209 F.3d 718, 2000 U.S. App. LEXIS 4553 (5th Cir. Miss. 2000).

The risk-utility analysis applies to design defects cases, not manufacturing defect cases. Byrd v. Corporacion Forestal y Indus. de Olancho S.A., 182 F.3d 380, 1999 U.S. App. LEXIS 18463 (5th Cir. Miss. 1999), abrogated, Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. Ed. 2d 1047, 2010 U.S. LEXIS 4378 (U.S. 2010).

Hangar doors were “fixtures,” rather than “products,” and, therefore, this section did not apply to an action arising from an incident in which the plaintiff was killed when one of a set of swinging hangar doors closed on him, crushing him between the door and door jamb. Bragg v. United States, 55 F. Supp. 2d 575, 1999 U.S. Dist. LEXIS 11240 (S.D. Miss. 1999).

Damages caused by the product that adversely affect the product’s monetary value are not within the scope of this section’s coverage, and thus, the product owner would have to seek a remedy in the law of warranty or contract. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So. 2d 384, 1999 Miss. App. LEXIS 106 (Miss. Ct. App. 1999).

When a plaintiff is relying on subsection (a)(i)(2) of this section in a products liability action, the known or open and obvious danger defense is a factor to be considered by the jury in determining whether a product is unreasonably dangerous. Hageney v. Jackson Furniture, Inc., 746 So. 2d 912, 1999 Miss. App. LEXIS 98 (Miss. Ct. App. 1999).

Conveyor manufacturer’s concession in products liability case that it did not contest feasibility of alternative designs proposed by plaintiff’s expert, but that defendant did claim that subsequent designs did not serve identified functions that its conveyor served, did not relieve plaintiff of requirement under Daubert that she independently establish technical basis for utility and safety of proposed alternative designs; manufacturer did not stipulate that alternative designs did not impair “utility, usefulness, practicability or desirability of the product to users or consumers,” within meaning of Mississippi law. Watkins v. Telsmith, Inc., 121 F.3d 984, 1997 U.S. App. LEXIS 24925 (5th Cir. Miss. 1997).

A trial court in a strict products liability action did not err in applying a “risk-utility” analysis, under which a product is “unreasonably dangerous” if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product, instead of a “consumer expectations” analysis, under which the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it; a risk-utility analysis best protects both the manufacturer and the consumer as it does not create a duty on the manufacturer to create a completely safe product, but instead charges the manufacturer with the duty to make its product reasonably safe regardless of whether the consumer is aware of the product’s dangerousness, and the consumer can recover for any injury resulting from a product danger even if he or she appreciates that danger so long as the utility of the product is outweighed by the danger that the product creates. Sperry-New Holland, Div. of Sperry Corp. v. Prestage, 617 So. 2d 248, 1993 Miss. LEXIS 124 (Miss. 1993).

Under the “risk-utility” test for determining whether a product is “unreasonably dangerous” within the meaning of § 402A of the Restatement of Torts, either the judge or the jury can balance the utility and danger-in-fact, or risk, of the product. Sperry-New Holland, Div. of Sperry Corp. v. Prestage, 617 So. 2d 248, 1993 Miss. LEXIS 124 (Miss. 1993).

2. Applicability.

Common law, rather than the Mississippi Products Liability Act (MPLA), applied to an injured driver’s negligence/failure-to-warn claims against a lessor of farm equipment, after the driver had his left arm severed by a farm disc that was being towed by a pick-up heading the opposite direction, because 2014 amendments suggested that the legislature did not intend to expand the MPLA beyond the three specific categories identified - manufacturers, designers, and sellers. Funches v. Progressive Tractor & Implement Co., L.L.C., 905 F.3d 846, 2018 U.S. App. LEXIS 27725 (5th Cir. Miss. 2018).

When homeowners sued a drywall seller for selling defective drywall, while, when suit was filed, the Mississippi Products Liability Act (MPLA) did not completely abrogate the homeowners’ breach of implied warranty claim, the seller was still entitled to summary judgment because the MPLA, including an innocent seller provision, applied broadly to any suit for damage caused by a defective product, except commercial damage. Holifield v. City Salvage, Inc., 230 So.3d 736, 2017 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 483 (Miss. 2017).

Homeowners’ common-law negligence and strict liability claims against a pipeline owner, an odorant manufacturer, and an odorant distributor failed as a matter of law because the Mississippi Products Liability Act provided the framework for analyzing the claims based on odorant fade. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Legislature intended to exempt every person participating in the procurement, processing, storage, distribution, and/or use of whole blood, plasma, blood products and blood derivatives, human tissue, organs or bones for the purpose of injecting, transfusing, transplanting or transferring the same or any of them into the human body from liability under the theory of strict products liability; the Mississippi Products Liability Act does not intend to change that long-standing concept. Palermo v. Lifelink Found., Inc., 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

Trial court did not err by granting a manufacturer’s motion for summary judgment on a patient’s claim under the Mississippi Products Liability Act (MPLA) because the manufacturer was statutorily defined as a service provider; the plain language of the MPLA makes clear that it does not apply to mere service providers. Palermo v. Lifelink Found., Inc., 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

Plaintiff, who took a generic equivalent of a brand-name drug, could not pursue a misrepresentation claim against manufacturers of the brand-name drug under a theory of innovator liability; Mississippi products liability law shielded the manufacturers from liability for products they did not create. Chatman v. Pfizer, Inc., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 127323 (S.D. Miss. Sept. 11, 2014).

Patient was barred from bringing a strict-products-liability claim or products-liability claim against a non-profit tissue bank, which supplied an allograft for the patient’s surgery, because human tissue, pursuant to Miss. Code Ann. §41-41-1, was not a product under the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63. Palermo v. LifeLink Found., Inc., 152 So.3d 1177, 2014 Miss. App. LEXIS 14 (Miss. Ct. App.), aff'd, 152 So.3d 1099, 2014 Miss. LEXIS 578 (Miss. 2014).

While negligence claims can be brought alongside strict liability claims, the findings for the claims brought under the Mississippi Products Liability Act can be dispositive as to the product-based negligence claims such as negligent failure to warn and negligent design. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Court rejected van manufacturer’s and seller’s contention that a driver’s exclusive remedy was to bring an action under the Mississippi Products Liability Act (MPLA), Miss. Code Ann. §11-1-63 et seq., finding no statutory requirement that made the MPLA the exclusive remedy for claims of malfunctioning automobiles. Additionally, breach of implied warranty claims were not barred by the MPLA. Watson Quality Ford, Inc. v. Casanova, 999 So. 2d 830, 2008 Miss. LEXIS 593 (Miss. 2008).

In a product liability case, a district court rejected the argument of a car maker and an occupant restraint maker that the first sentence in Miss. Code Ann. §11-1-63 stands for the proposition that the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, is the only statutory vehicle through which one can pursue a product liability claim, thereby excluding a negligence theory. Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. LEXIS 55123 (N.D. Miss. July 18, 2008), aff'd, 310 Fed. Appx. 747, 2009 U.S. App. LEXIS 5870 (5th Cir. Miss. 2009).

Mississippi courts are unified in their interpretation of the legislative mandate set forth in Miss. Code Ann. §11-1-63, the Mississippi products liability statute. Moreover, in explicit terms, the statute requires that when a claimant asserts a design defect theory of liability, the claimant not only must provide proof that the seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger causing injury, but also, the claimant must provide evidence that the product failed to function as expected by way of producing evidence of a feasible design alternative that could have reasonably prevented the claimant’s injury; in the case at bar, where a handgun fell from plaintiff’s car door and discharged (in part, it was undisputed that the safety was off), he failed to prove the aforementioned elements and summary judgment for defendant was proper. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

In a case involving a dispute over an allegedly defective roof, summary judgment was properly granted in favor of several builders because the action was untimely; Miss. Code Ann. §11-1-63 and Miss. Code Ann. §15-1-49 did not apply because an improvement to real property was not a product. Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 2005 Miss. LEXIS 517 (Miss. 2005).

In a mass-joined asbestos action in which numerous consumers sought recovery against numerous defendants for injuries resulting from exposure to asbestos-containing products, where the consumers’ complaint alleged that certain local retailers should be held liable under Mississippi law because they sold unreasonably dangerous and defective products, the complaint stated a cause of action against the retailers because Miss. Code Ann. §11-1-63 clearly provided for strict liability against retailers in products liability cases. Duffin v. Honeywell Int'l, Inc., 312 F. Supp. 2d 869, 2004 U.S. Dist. LEXIS 12857 (N.D. Miss. 2004).

Grant of summary judgment in favor of the company in a wrongful death action was proper where products liability law limited itself to imposing liability on entities engaged in the actual production or sale of goods, Miss. Code Ann. §11-1-63(a); further, the beneficiaries abandoned their motion for leave to amend because they permitted over three and on-half months to pass without making any effort to pursue a ruling on the motion in face of knowledge that the trial court had taken the summary judgment motion filed against them under advisement, Miss. Unif. Cir. & County Ct. Prac. R. 4.03(1), 2.04. Harrison v. B.F. Goodrich Co., 881 So. 2d 288, 2004 Miss. App. LEXIS 173 (Miss. Ct. App.), cert. denied, 882 So. 2d 772, 2004 Miss. LEXIS 1111 (Miss. 2004).

Trial court could not exclude material as to a warning in an owner’s manual as irrelevant based upon the plaintiffs’ admission that they did not rely upon any information in their owner’s manual. Because reliance on the manufacturer’s warning was not an element of an inadequate warnings case. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

Where a truck driver died in a single-vehicle log truck accident, and his wrongful death beneficiaries lost their suit, controlling law applied the risk-utility analysis, not consumer expectation, for determining whether a product, alleged to be defective in design, was unreasonably dangerous; as such, it was reversible error for the trial court to instruct the jury to apply the consumer expectations test. Smith v. Mack Trucks, Inc., 819 So. 2d 1258, 2002 Miss. LEXIS 199 (Miss. 2002).

Where plaintiffs alleged that they were injured by the process utilized by defendants in treating wood with creosote and by the alleged waste that process may have caused, defendants were entitled to summary judgment on plaintiff’s claims for failure to warn because the process and alleged waste was not a “product” within the scope of Miss. Code Ann. §11-1-63. Andrews v. Kerr McGee Corp., 2001 U.S. Dist. LEXIS 25973 (N.D. Miss. Dec. 3, 2001).

The statute does not apply to an action commenced prior to its effective date. O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 2000 Miss. App. LEXIS 205 (Miss. Ct. App. 2000).

3. Expert testimony.

Trial court properly barred a driver’s claim under the Mississippi Products Liability Act because his experts failed to provide any testimony that a reasonable alternative design existed for a gating end terminal, and the remaining evidence was insufficient to raise a genuine issue of material fact as to whether the terminal was defectively designed; one expert’s affidavit was an attempt to respond to companies’ argument that the expert had not shown a feasible alternative design. Singley v. Trinity Highway Prods., LLC, 180 So.3d 708, 2015 Miss. App. LEXIS 283 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 11 (Miss. 2016).

Consumer had not established that the failure to include a graphic adjacent to the written warning on the saw proximately caused his injury under Miss. Code Ann. §11-1-63. Any testimony presented by the human factors expert that the absence of a graphic adjacent to the written warning on the table saw rendered the warning inadequate was therefore irrelevant and should have been excluded. Previto v. Ryobi N. Am., Inc., 766 F. Supp. 2d 759, 2010 U.S. Dist. LEXIS 141381 (S.D. Miss. 2010).

Where the consumer complained that the vehicle-equipped air bag failed to deploy during a car accident, she filed a products liability suit against the manufacturer but failed to call expert witnesses to prove that the car was defective at the time it left the manufacturer. The circuit court did not err by granting summary judgment for the manufacturer after finding that the consumer failed to present evidence that created a genuine issue of material fact to support her claims under Miss. Code Ann. §11-1-63(a)(i)(1)-(3). Brown v. GMC, 4 So.3d 400, 2009 Miss. App. LEXIS 137 (Miss. Ct. App. 2009).

In a product liability case in which a district court had excluded a driver’s expert witnesses, the driver’s claims under Miss. Code Ann. §11-1-63 failed as a matter of law since, with the exclusion of her experts, she had insufficient evidence to create a genuine issue of material fact as to her defective design, defective manufacturer, and failure to warn claims. Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. LEXIS 55123 (N.D. Miss. July 18, 2008), aff'd, 310 Fed. Appx. 747, 2009 U.S. App. LEXIS 5870 (5th Cir. Miss. 2009).

Because plaintiff’s expert had no expertise in tire design, manufacture, or malfunction, his testimony was properly stricken as to causation under Fed. R. Evid. 702; without the testimony of causation, plaintiff failed to establish claim under Miss. Code Ann. §11-1-63(a) and summary judgment for the manufacturer was proper. Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 2007 U.S. App. LEXIS 18450 (5th Cir. Miss. 2007).

Although a driver did not offer expert testimony as to the issue of whether the collision in which she was involved was severe enough to warrant deployment of an air bag in accordance with the car manufacturer’s warranty that the air bag would deploy if the collision was “hard enough,” the evidence offered by the driver, including testimony from a mechanic as to the severity of the damage sustained by the car, was sufficient to allow a jury to conclude that the collision was “hard enough” such that the air bag should have deployed and that the warranty was breached, rendering the manufacturer liable under Miss. Code Ann. §11-1-63(a)(i)(4). Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Summary judgment in favor of defendant casket company on a product liability claim was proper because no expert testimony was presented that demonstrated that the alternative glue would have allowed the wooden casket to last for an “indefinite” period of time. Moss v. Batesville Casket Co., 935 So. 2d 393, 2006 Miss. LEXIS 378 (Miss. 2006).

In a products liability suit filed against the manufacturer of a cleaning product that exploded, the testimony of plaintiff’s expert as to the cause of the explosion was excluded because it was too speculative to be reliable. Kemp v. Biolab, Inc., 2005 U.S. Dist. LEXIS 34035 (S.D. Miss. June 22, 2005).

Directed verdict in favor of the corporation in the driver’s products liability action was proper pursuant to the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, because there was no evidence that the driver or her husband relied on any express warranty or other factual representation about the air bag before the accident. Additionally, the driver offered no expert testimony to say that the air bag should have deployed in the collision. Forbes v. GMC, 929 So. 2d 958, 2005 Miss. App. LEXIS 716 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Directed verdict for defendant under Miss. R. Civ. P. 50(a) was proper in a products liability action under Miss. Code Ann. §11-1-63 where a wife was injured in an automobile accident and there was evidence that her air bag did not deploy because the only express warranty made was that the automobile had air bags, there was no evidence that plaintiffs justifiably relied on statements in the owners’ manual, and plaintiffs offered no expert testimony to show that the impact was hard enough that the air bag should have deployed. Forbes v. GMC, 2005 Miss. App. LEXIS 95 (Miss. Ct. App. Feb. 1, 2005), op. withdrawn, sub. op., 929 So. 2d 958, 2005 Miss. App. LEXIS 716 (Miss. Ct. App. 2005).

Trial court erred in allowing auto manufacturer’s expert to provide lay testimony about air bag inflation technology court because the manufacturer failed to designate him as an expert before the deadline, and his “lay testimony” strayed into the realm of scientific, technical and specialized knowledge that could only be admitted as expert testimony after assessment pursuant to Miss. R. Evid. 702. Also the injured driver’s family members were prejudiced by the expert’s testimony as it rebutted their expert’s testimony regarding their claim of defective design under the Mississippi Product Liability Act, Miss. Code Ann. §11-1-63. Palmer v. Volkswagen of Am., Inc., 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), op. withdrawn, sub. op., 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

The district court properly ruled that expert testimony was irrelevant and properly excluded such testimony where the expert opined that a ladder had a manufacturing defect because there was no adhesion between the fiberglass and the polymer matrix making up the ladder, but failed to assess whether the ladder met ANSI standards. Byrd v. Corporacion Forestal y Indus. de Olancho S.A., 182 F.3d 380, 1999 U.S. App. LEXIS 18463 (5th Cir. Miss. 1999), abrogated, Samantar v. Yousuf, 560 U.S. 305, 130 S. Ct. 2278, 176 L. Ed. 2d 1047, 2010 U.S. LEXIS 4378 (U.S. 2010).

4. Tobacco products.

Miss. Code Ann. §11-1-63 was commonly referred to as the inherent characteristics defense and was just that; a defense that had to be pled and proven, rather than an outright bar, and the defense in Miss. Code Ann. §11-1-63(b) did not bar any action for damages caused by cigarettes, as the defense only applied to a products liability action and, as with any other affirmative defense, the defense was a matter of proof. R. J. Reynolds Tobacco Co. v. King, 921 So. 2d 268, 2005 Miss. LEXIS 423 (Miss. 2005).

Mississippi Product Liability Act, Miss. Code Ann. §11-1-63, precludes all tobacco cases based on products liability against tobacco companies; hence, summary judgment was properly granted to tobacco companies on an asbestos company’s claim that smoking by asbestos claimants had caused the damage to the asbestos claimants. Owens Corning v. R.J. Reynolds Tobacco Co., 868 So. 2d 331, 2004 Miss. LEXIS 270 (Miss. 2004).

It was possible that the plaintiffs would be able to state a cause of action on the basis that the cigarettes at issue were defectively designed so as to render them unreasonably dangerous where the plaintiffs asserted that several thousand compounds had been found in cigarette smoke, including, for example, carbon monoxide, nicotine, carbon dioxide, benzene, formaldehyde, Polonium-210, ammonia, nicotine sulfate, freon 11, hydrogen cyanide, and certain liver toxins known collectively as “furans” and that some of these compounds had been deliberately added to the cigarettes. Thomas v. R.J. Reynolds Tobacco Co., 11 F. Supp. 2d 850, 1998 U.S. Dist. LEXIS 11277 (S.D. Miss. 1998).

Miss. Code Ann. §11-1-63 precludes all product liability actions against tobacco companies; the harm from tobacco use has been well documented, and elimination of the sources of the harm would greatly reduce the desirability of cigarettes. Lane v. R. J. Reynolds Tobacco Co., 853 So. 2d 1144, 2003 Miss. LEXIS 211 (Miss. 2003), overruled in part, R. J. Reynolds Tobacco Co. v. King, 921 So. 2d 268, 2005 Miss. LEXIS 423 (Miss. 2005).

5. Substantial change.

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show a lack of substantial change after the doors left the manufacturer where a third party replaced the threshold sensor with a sensor that had been rebuilt, without the knowledge or approval of the defendant manufacturer. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

6. Adequate warnings.

Plaintiff’s attempt to prove her failure to warn claim through defendants’ marketing materials and internal documents expanded the claim beyond the statutory scope of the Products Liability Act; the only pertinent question is whether the prescription drug label contained adequate warnings or instructions. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Risperdal label warned physicians that tardive dyskinesia might develop in patients treated with antipsychotic drugs and whether antipsychotic drug products differed in their potential to cause tardive dyskinesia was unknown; the Risperdal label warned the doctor specifically of the danger of tardive dyskinesia in no uncertain terms and was sufficiently adequate as a matter of law. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Widow presented sufficient evidence that the sandblasting company breached its duty to provide adequate warnings, as there was sufficient evidence for a jury to find that, between 1960 and 1970, the company knew or in light of reasonably available knowledge should have known about the danger inherent in the use of silica in sandblasting operations, even as it related to a so-called bystander such as the decedent. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

Homeowners’ failure-to-warn claims against an odorant manufacturer and odorant distributor failed because the homeowners could not prove that ordinary users or consumers of odorant did not realize the potential for odorant fade. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Trial court erred in failing to grant a manufacturer’s motion for judgment notwithstanding the verdict regarding a worker’s failure to warn claim because the worker proffered no testimony that he read the instructions on a respirator or that had the instructions contained a use limitation or warning, such a warning or limitation would have altered his behavior. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Where an arrestee died after being tased, the brother’s failure to warn claim against the taser company failed because the product warnings explicitly and repeatedly warned of the risks of serious injury and death, and the brother produced no evidence demonstrating that the warnings the company provided were inadequate. Williams v. City of Cleveland, 736 F.3d 684, 2013 U.S. App. LEXIS 22205 (5th Cir. Miss. 2013).

Although Mississippi imposed no post-sale duty to warn, Miss. Code Ann. §11-1-63(c), there were numerous studies in existence prior to 2000 that linked joint cartilage toxicity with exposure to foreign substance. The presence of those studies raised a genuine issue of material fact as to whether the defendants reasonably should have known at the time of the plaintiff’s surgery of the danger their product posed and thereby failed to provide sufficient warning. Cross v. Amtec Med., Inc., 2012 U.S. Dist. LEXIS 141508 (S.D. Miss. Sept. 30, 2012).

Mississippi law does not require the best and most obvious warning but only adequate warning. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Warning may be held adequate as a matter of law where the adverse effect was one that the manufacturer specifically warned against. The presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiff’s damages. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Warning was adequate as it not only warned of the potential of rear tip over, but also provided explicit directions on how to avoid the possibility of rear tip over. Further, the purchaser could not prove that the manual’s inadequate warnings proximately caused his injury as he voluntarily made the decision to not read the manual. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

In plaintiffs’ suit for injuries caused by exposure to lead paint used in an apartment building over the course of 70 years, the manufacturer was granted summary judgment as to plaintiffs’ post-sale failure to warn claims because Miss. Code. Ann. §11-1-63 did not impose such a duty; however, fact issues remained as to the product’s defectiveness, causation, and damages based on measurable diminution of plaintiffs’ mental abilities. Jones v. NL Indus., 2006 U.S. Dist. LEXIS 33714 (N.D. Miss. May 24, 2006).

With regard to a product liability claim under Miss. Code Ann. §11-1-63(a)(i)(4), it is possible to rely on assertions in an ownership manual without having actually read them; thus, in a driver’s breach of warranty suit against a car manufacturer, although the driver had not read the owner’s manual prior to purchasing a car, the driver could show that she relied on a warranty in the ownership manual concerning air bags where the salesman conveyed that information to the driver prior to her purchase of the car. Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

Parents of a minor girl who died as a result of injuries sustained in a car crash when the air bags deployed did not have a valid argument that the warnings in the owner’s manual for the car were inadequate. The parents and the daughters admittedly had not even read the owner’s manual in which the warnings were found. Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

Creating a post-sale duty to warn appeared to conflict with the language of Miss. Code Ann. §11-1-63(a)(1) and the appellate court declined to create such a post-sale duty to warn. Even had defendants been aware of allegations of brake failure, they were under no duty to disclose them, and under the circumstances, where among the reports in the record, only two dealt with complaints of similar brake failures prior to the time the vehicle was purchased, admission of the prior incident reports occurring after the date of sale would have been more prejudicial than probative. Noah v. GMC, 882 So. 2d 235, 2004 Miss. App. LEXIS 172 (Miss. Ct. App.), cert. denied, 882 So. 2d 772, 2004 Miss. LEXIS 1150 (Miss. 2004).

Summary judgment dismissal of wrongful death claims based on failure to warn and defective design was affirmed, where the decedent was electrocuted after raising a broadcast antenna mast into a power line. Austin v. Will-Burt Co., 361 F.3d 862, 2004 U.S. App. LEXIS 3897 (5th Cir. Miss. 2004).

As defendant, the manufacturer of a liner installed in a lagoon where a worker drowned, gave a sufficient warning of the dangers of the liner in its contract with the general contractor. The dangerous nature of the liner that it became slippery when wet, also would have been known to the ordinary user; therefore, the trial court properly granted the manufacturer summary judgment on grounds that plaintiff failed to prove the manufacturer breached a duty to the deceased worker. Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68, 2003 Miss. App. LEXIS 681 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 957 (Miss. 2004).

Manufacturer’s telescoping mast was not defectively designed nor unreasonably dangerous when it left the manufacturer’s control; it performed without incident for years and was labeled with adequate warnings pursuant to Miss. Code Ann. §11-1-63 and the relatives’ suit was dismissed. Austin v. Will-Burt Co., 232 F. Supp. 2d 682, 2002 U.S. Dist. LEXIS 26542 (N.D. Miss. 2002), aff'd, 361 F.3d 862, 2004 U.S. App. LEXIS 3897 (5th Cir. Miss. 2004).

In workers’ suit against manufacturers and suppliers of asbestos-containing products, remand to state court was warranted because the in-state defendants were not fraudulently joined; the complaint contained allegations that could create liability for the in-state defendants which were allegedly responsible for selling defective products that caused injury to the workers. Arrington v. AC & S, Inc., 2002 U.S. Dist. LEXIS 27636 (S.D. Miss. Aug. 27, 2002).

Non-diverse pharmacies were fraudulently joined in the patients’ negligence, fraud, and failure to warn action for damages based on injuries caused by the diverse manufacturers’ diet drugs because, in the face of the specific allegations of the manufacturers’ concerted, unabated fraud and concealment of the drugs’ true risks from virtually everyone, no factual basis could have been drawn for the general, conclusory charge that the pharmacies knew or had reason to know of the risks. Louis v. Wyeth-Ayerst Pharms., Inc., 2000 U.S. Dist. LEXIS 22694 (S.D. Miss. Sept. 25, 2000).

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show that adequate warnings or instructions were missing where at least one warning sticker was posted next to the doors and there was no evidence that the warning proposed by the plaintiff would have had any causative impact. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

7. Design defect.

Homeowners’ design-defect claims against an odorant manufacturer and odorant distributor failed because the homeowners offered no proof of a feasible alternative odorant design. Elliott v. El Paso Corp., 181 So.3d 263, 2015 Miss. LEXIS 457 (Miss. 2015).

Purchaser immediately noticed that the wheelchair did not include anti-tip tubes; he and his son immediately tried to install the tubes from his old chair onto his new one because the purchaser recognized that he needed them. Despite his recognition that the chair did not have the safety feature he needed, the purchaser voluntarily decided to ride around in it; therefore, the purchaser assumed the risk of using a chair without anti-tip tubes as a matter of law. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

Grant of summary judgment against the father in his action against the manufacturer and seller under theories of strict liability and negligence, alleging a design defect in a garage door opener and a failure to warn, was proper pursuant to Miss. Code Ann. §11-1-63(f)(ii) where the manufacturer designed its garage door opener to raise and lower the door when someone physically activated the device. It did not design the opener to open unless someone manually operated it and thus, the father failed to show that the product failed to function as expected. Glenn v. Overhead Door Corp., 935 So. 2d 1074, 2006 Miss. App. LEXIS 60 (Miss. Ct. App.), cert. dismissed, 936 So. 2d 367, 2006 Miss. LEXIS 434 (Miss. 2006).

8. — Open and obvious danger.

Grant of summary judgment in favor of the employer and manufacturer in the employee’s personal-injury action was proper because the employee needed no warning to understand the danger of coming into close proximity with the moving chains attached to a mule boy; he appreciated that it was a dangerous situation but did not turn off the machine. Green v. Allendale Planting Co., 954 So. 2d 1032, 2007 Miss. LEXIS 232 (Miss. 2007).

Trial court properly allowed a car manufacturer to present evidence that the danger of air bags opening were open and obvious to rebut the plaintiffs’ inadequate warning claim. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

9. Feasible design alternative.

In a products-liability case following a house fire allegedly started by a device in a truck, an expert’s description of one feasible design alternative failed as he changed his opinion from the witness stand, and refused to include an alternative adopted by the manufacturer, and did not provide sufficient data or support for a second alternative; his methodology failed Daubert’s reliability test, and the design-defect claim also failed. Brown v. Ford Motor Co., 121 F. Supp. 3d 606, 2015 U.S. Dist. LEXIS 103878 (S.D. Miss. 2015).

District court properly granted judgment as a matter of law to the corporation on the employee’s design defect claim under the Mississippi Products Liability Act (MPLA), Miss. Code Ann. §11-1-63 et seq., because the employee did not present the requisite evidence for a reasonable jury to find that a door was a MPLA feasible design alternative, and the employee’s only witness testifying about the forklift design, presented no opinion, however, that a door would be a MPLA feasible design alternative. Therefore, the evidence produced by the employee was not sufficient for a reasonable jury to find that the corporation’s forklift had a design defect that rendered the forklift unreasonably dangerous. Guy v. Crown Equip. Corp., 394 F.3d 320, 2004 U.S. App. LEXIS 25986 (5th Cir. Miss. 2004).

In an action alleging that automatic doors malfunctioned and caused injury to the plaintiff, the plaintiff failed to show that a feasible alternative design existed at the time the door system was manufactured and installed where the plaintiff’s own expert witness testified that the proposed alternative design had a short life expectancy, was likely to fail and result in accidents, and was very costly. Wolf v. Stanley Works, 757 So. 2d 316, 2000 Miss. App. LEXIS 144 (Miss. Ct. App. 2000).

10. Prima facie case.

In a driver’s product liability suit pursuant to Miss. Code Ann. §11-1-63(a)(i)(4), a circuit court erred in granting a directed verdict to a manufacturer; the driver set forth a prima facie case for breach of warranty where the driver introduced evidence tending to show that, inter alia: (1) the owner’s manual for the manufacturer’s car stated that the air bag would deploy if the collision were “hard enough”; (2) the driver relied on that warranty, which had been conveyed by a salesman prior to the driver’s purchase of the car; (3) and where the collision was severe and was “hard enough” to warrant deployment of the air bag. Forbes v. GMC, 935 So. 2d 869, 2006 Miss. LEXIS 285 (Miss. 2006).

While foreseeability is an element of proof required by Miss. Code Ann. §11-1-63, a claimant must also offer a feasible design alternative. In the case at bar, fundamental to proving his prima facie case was plaintiff’s burden of proving that: (1) the handgun (which fired when it was dropped), was unreasonably dangerous by showing that the product seller knew or should have known about the unreasonably dangerous condition of the handgun; (2) that the handgun failed to function as expected, and; (3) that there existed a feasible design alternative that would have, to a reasonable probability, prevented the harm complained of by plaintiff. Williams v. Bennett, 921 So. 2d 1269, 2006 Miss. LEXIS 46 (Miss. 2006).

In a products liability case alleging a manufacturing defect, plaintiff bears the burden of persuasion as to the issue of proximate cause. Plaintiff’s failure to produce any evidence from which a reasonable juror could conclude that the claimed manufacturing defects proximately caused her accident is insurmountable. Johnson v. Davidson Ladders, Inc., 403 F. Supp. 2d 544, 2005 U.S. Dist. LEXIS 38806 (N.D. Miss. 2005), aff'd, 193 Fed. Appx. 349, 2006 U.S. App. LEXIS 20526 (5th Cir. Miss. 2006).

Manufacturer of a cleaning product that exploded was entitled to summary judgment in the user’s action for products liability. The user failed to establish a material fact question on inadequate warning and proximate cause. Kemp v. Biolab, Inc., 2005 U.S. Dist. LEXIS 34035 (S.D. Miss. June 22, 2005).

Manufacturer was entitled to a motion for a judgment notwithstanding the verdicts, pursuant to Miss. Code. Ann. §11-1-63, because the asbestos injury claimants failed to meet their burden of proof of showing that a dust mask and respirator were defective when made by the manufacturer, or that a required warning by the manufacturer was missing. 3M Co. v. Johnson, 895 So. 2d 151, 2005 Miss. LEXIS 43 (Miss. 2005).

Passengers’ suit against a car dealer was subject to remand because the passengers’ allegations–that the dealer sold a vehicle that was unreasonably dangerous, was defectively designed, and failed to contain adequate warnings–were sufficient to potentially state a cause of action for products liability against the dealer in state court. Thus, the dealer’s citizenship, which destroyed complete diversity, could not be ignored for purposes of determining subject matter jurisdiction under 28 U.S.C.S. § 1332. Stanton v. Ford Motor Co., 2003 U.S. Dist. LEXIS 26554 (N.D. Miss. June 30, 2003).

Where the consumer alleged that the seller sold the consumer an all-terrain vehicle that was unreasonably dangerous, was defectively designed, and failed to contain adequate warnings, these allegations were sufficient to potentially state a cause of action for products liability against the seller under Miss. Code Ann. §11-1-63. Jackson v. Kawasaki Motors Corp., 2003 U.S. Dist. LEXIS 26291 (N.D. Miss. Mar. 26, 2003).

Where there was at least one viable state-law claim with a possibility of recovery against the resident retail sellers with respect to the strict liability claim under Miss. Code Ann. §11-1-63, joinder of the diabetics’ claims was proper under Miss. R. Civ. P. 20; therefore, the the case was erroneously removed pursuant to 28 U.S.C.S. § 1332 and had to be remanded to the state court. Polk v. Lifescan, Inc., 2003 U.S. Dist. LEXIS 25762 (N.D. Miss. Sept. 19, 2003).

In a products liability action by minor passengers against the manufacturer and the seller of a vehicle for the injuries the passengers suffered in a one-vehicle accident, the passengers were entitled to have their case remanded to state court under 28 U.S.C.S. § 1447(c) after defendants removed it to federal court under 28 U.S.C.S. § 1441(a) on a claim that the passengers had fraudulently joined the seller as a defendant in order to defeat diversity jurisdiction under 28 U.S.C.S. § 1332(a), where the passengers stated a cause of action under Miss. Code Ann. §11-1-63 by alleging that the seller sold a defective and unreasonably dangerous vehicle that caused the passengers’ injuries. Stanton ex rel. Stanton v. Ford Motor Co., 2003 U.S. Dist. LEXIS 25157 (N.D. Miss. July 2, 2003).

Where the injured party asserted a products liability action pursuant to Miss. Code Ann. §11-1-63 alleging that the manufacturer’s defective water heater had caused the injured party’s burns, the manufacturer was entitled to summary judgment under Miss. R. Civ. P. 56; the injured party was unable to show that the manufacturer’s hot water heater had caused the injured party’s burns, because the hot water heater had to comply with all mandatory and voluntary government and industry standards, and housing and urban development inspected the water heater after the incident and found nothing wrong. Moore v. Miss. Valley Gas Co., 863 So. 2d 43, 2003 Miss. LEXIS 601 (Miss. 2003).

As a wrongful death plaintiff failed to prove that defendant – the manufacturer of a liner installed in a lagoon where a worker drowned – defectively designed the liner, having presented no evidence of industry standards or customs and no expert opinion showing the availablity of an alternate design that would have prevented the alleged harm without impairing the usefulness of the product, the trial court properly granted the manufacturer summary judgment. Hobson v. Waggoner Eng'g, Inc., 878 So. 2d 68, 2003 Miss. App. LEXIS 681 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 957 (Miss. 2004).

Decedent’s beneficiaries made a prima facie case of products liability against the manufacturer of a tire that had separated treads with the testimony of a tire expert that the manufacturer had made the tire that had separated treads from bad stock and the testimony of two employees of the manufacturer that the manufacturer had knowingly and intentionally used bad stock in the manufacture of tires. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

11. Evidence.

Former owner of a meat grinder was entitled to summary judgment when an accident victim brought a failure-to-warn case because the victim failed to provide any evidence that the meat grinder was defective. The victim failed to present any evidence that the meat grinder was required to have a safety interlock feature, that the meat grinder violated any industry standard or regulatory requirement or that it failed to meet the manufacturer’s specifications, and that anyone tampered with the meat grinder. Johnson v. T & T Farms, Inc., — So.3d —, 2019 Miss. App. LEXIS 145 (Miss. Ct. App. Apr. 9, 2019).

Summary judgment was properly granted to the manufacturer because the consumer did not meet his obligation under the Mississippi Products Liability Act to introduce evidence on the issue of causation that would have led the court to reasonably conclude that it was more likely than not that the manufacturer’s conduct caused the car to veer off the road and wreck. Logan v. Ford Motor Co., — So.3d —, 2019 Miss. App. LEXIS 454 (Miss. Ct. App. Sept. 17, 2019).

Judgment was properly entered for a worker for silicosis-related injuries caused by a manufacturer’s defective respirator because the worker’s evidence was sufficiently reliable to rise above a mere post hoc ergo proptor hoc finding of causation; the worker offered evidence of extremely dusty work conditions and testimony that concrete contained silica and that he suffered from silicosis, an injury known to be caused by silica overexposure. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Trial court erred in denying a builder’s motion for judgment notwithstanding the verdict because purchasers failed to provide sufficient evidence that reasonable jurors could not have found in favor of the builder; the purchasers did not substantiate a basis for a products-liability claim under Miss. Code Ann. §11-1-63(a) because any damage they claimed from a misplaced wire was irrelevant since they never technically lived in or owned the home. Cavalier Home Builders v. Baughman, 126 So.3d 899, 2012 Miss. App. LEXIS 790 (Miss. Ct. App. 2012), cert. dismissed, 2013 Miss. LEXIS 626 (Miss. Dec. 5, 2013).

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners offered only mere proof of damage following the use of the windows, which was insufficient under Miss. Code Ann. §11-1-63(a), (b), and (f). The fact that their windows leaked and rotted was insufficient for the design-defect claim to survive the motion for summary judgment. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

Per the plain language of the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63(c)(i) (2004), critical to the district court’s inquiry into a failure-to-warn claim was the question of what the manufacturers knew and what knowledge was reasonably available to them and as knowledge accumulates over time, prior knowledge of harm that predated plaintiffs’ employment was relevant to a question of current knowledge; evidence that some members of the welding industry had warnings on their products as far back as the 1940s, which were later removed due to concerns about the financial implications of such warnings, was directly relevant to rebut testimony. Accordingly, given the relevance of these documents to plaintiffs’ failure-to-warn claim under Mississippi law, the district court did not abuse its discretion in admitting them over the manufacturers’ objection. Jowers v. Lincoln Elec. Co., 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Trial court did not err in granting a manufacturer and an automobile dealership summary judgment in a breach of warranty action filed by a driver and her husband because they produced insufficient evidence of causation pursuant to Miss. Code Ann. §11-1-63(a); there had to be proof from which a jury could conclude that the vehicle’s airbag would have prevented the driver’s injuries, but there was no evidence from which a reasonable jury could conclude that but for the breach of warranty, the driver would not have been injured or her injuries would have been mitigated, Rowan v. Kia Motors Am., 16 So.3d 62, 2009 Miss. App. LEXIS 533 (Miss. Ct. App. 2009).

Former police officer’s recollection of being told that it was “extremely hard” to grab a weapon from a certain model holster corresponded closely to the “extremely difficult” language used in defendants’ advertisement. The officer’s testimony regarding the holster’s reputation for weapon retention suggested that representations regarding that quality were at least part of what made him purchase it, Miss. Code. Ann. §11-1-63(a)(1)(4). Johnson v. Michaels of Or. Co., 2009 U.S. Dist. LEXIS 17870 (N.D. Miss. Feb. 23, 2009).

Because a product liability action established by Miss. Code Ann. §11-1-63 was subject to a comparative fault defense, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence under Miss. Code Ann. §11-7-15. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

12. Jury instruction.

Trial court erred in giving a certain instruction without specifying every essential element of a negligent misrepresentation claim; the instruction omitted an essential element of the claim, specifically the requirement that the representation or omission was material or significant. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Defendants argued that the case did not concern the adequacy of any instructions regarding Risperdal, but this argument was rejected because the statute clearly provided that a product may be defective because it failed to contain adequate warnings or instructions, and the inclusion of the word “instructions” was not improper. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Combination of the claims for negligent marketing and negligent misrepresentation as if they were the same claim, sharing the same elements, was misleading and improper; a negligent marketing or negligent advertising claim is not cognizable under Mississippi law to the extent that it is not part of a claim for negligent misrepresentation. Johnson & Johnson, Inc. v. Fortenberry, 234 So.3d 381, 2017 Miss. LEXIS 421 (Miss. 2017).

Because the jury was instructed pursuant to the Mississippi Products Liability Act, Miss. Code Ann. §11-1-63, the trial court did not need to present the jury with a separate negligence instruction on inadequate warnings. Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564, 2003 Miss. App. LEXIS 752 (Miss. Ct. App. 2003), aff'd in part and rev'd in part, 2005 Miss. LEXIS 21 (Miss. Jan. 13, 2005), aff'd in part and rev'd in part, 904 So. 2d 1077, 2005 Miss. LEXIS 247 (Miss. 2005).

13. Asbestos cases.

In an asbestos case alleging failure to warn, a manufacturer was not entitled to a sophisticated user/learned intermediary defense because (1) the manufacturer did not show the manufacturer warned an injured employee’s employer of a product’s hazards, and (2) a reasonable jury could conclude the manufacturer’s warnings to customers as a whole was inadequate. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

Trial court erred by granting a judgment notwithstanding the verdict to the asbestos suppliers and distributor by applying the survivors’ proof to the “frequency, regularity, and proximity” test instead of the statutory elements of a design defect products liability claim, because the test was to be applied solely in the context of summary judgment or directed verdict, and nothing in the Mississippi Products Liability Act created a separate class of litigation for asbestos cases. Smith v. Union Carbide Corp., 130 So.3d 66, 2013 Miss. LEXIS 642 (Miss. 2013).

In asbestos litigation in Mississippi, the proper test to be used is the frequency, regularity, and proximity standard to show product identification of the defendants’ actual products, exposure of the plaintiffs to those products, and proximate causation as to the injuries suffered by the plaintiffs. In the case at bar, the workers fell well short of meeting the Lohrmann test as adopted by the Mississippi Supreme Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss. 2005); for those reasons, the supreme court reversed the circuit court’s denial of summary judgment and rendered judgment in favor of the chemical company. Monsanto Co. v. Hall, 912 So. 2d 134, 2005 Miss. LEXIS 765 (Miss. 2005).

14. Reliance.

Purchaser did not present any evidence that the manufacturers made an express representation to him about the wheelchair, or any evidence that the purchaser relied on any information from the manufacturer at all; indeed, there was no evidence that the manufacturers had any interaction with the purchaser at all since the seller handled the sale. Therefore there was no factual or legal basis for a breach of an express warranty claim under the Mississippi Products Liability Act. McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 2010 U.S. Dist. LEXIS 10710 (S.D. Miss. 2010).

In a personal injury products liability lawsuit, the tire maker argued that the decedent’s estate failed to prove that there was a manufacturing defect in the tire when it left the control of the maker or the seller; the maker claimed that the estate failed to show any actual deviation in the tire from the manufacturer’s specifications. However, the theory on which the case went to the jury was not that of a manufacturing-defect theory, but instead it was that the tire breached an express warranty or failed to conform to other express factual representations upon which the decedent justifiably relied in using the product pursuant to Mississippi Code Annotated section 11-1-63(a)(i)(4); therefore, there was no merit to the assignment of error. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

15. Preservation for review.

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners’ warranty claims were procedurally barred. The homeowners never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against the seller and that critical fact fundamentally distinguished the case from the warranty decisions relied upon by the homeowners. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

16. Proximate cause.

Trial court erred in granting manufacturers’ motion for judgment notwithstanding the verdict (JNOV) because a widow presented sufficient evidence from which a reasonable juror could find that her husband was exposed to the manufacturers’ products to a sufficient degree such that they could have been a proximate cause of his lung cancer. Smith v. Union Carbide Corp., 200 So.3d 1035, 2016 Miss. LEXIS 399 (Miss. 2016).

Trial court erred in denying a manufacture’s motion for judgment notwithstanding the verdict on the issue of a worker’s misuse of a respirator because the worker failed to show that the manufacturer was the proximate cause of his injury the worker’s testimony overwhelmingly showed the respirator was misused, and that the misuse materially altered the product’s condition after it left the manufacturer’s control. Mine Safety Appliance Co. v. Holmes, 171 So.3d 442, 2015 Miss. LEXIS 189 (Miss. 2015).

Circuit court abused its discretion in granting a new trial, when a claimant alleged that a seller of sand’s failure to provide adequate warnings of the dangers of the inhalation of respirable silica caused the claimant’s silicosis, because insufficient evidence was adduced at trial to prove, by a preponderance of the evidence, that the seller’s sand caused the claimant’s silicosis. Dependable Abrasives, Inc. v. Pierce, 156 So.3d 891, 2015 Miss. LEXIS 51 (Miss. 2015).

Summary judgment was granted to a manufacturer in a product liability case under Miss. Code Ann. §11-1-63 due to a lack of proximate causation; neither the manufacturer’s failure to warn nor its alleged design defect proximately caused a renter’s eye injuries from a bungee cord. The renter’s awareness of the allegedly dangerous condition was fatal to a failure-to-warn claim; as to a design-defect claim, there was testimony that the renter would have attempted to restrain a machine’s movement, even if the wheels of the machine had been locked. Berry v. E-Z Trench Mfg., 772 F. Supp. 2d 757, 2011 U.S. Dist. LEXIS 15940 (S.D. Miss. 2011).

17. Innocent seller.

Mississippi Products Liability Act’s innocent seller provision entitled a seller to summary judgment for selling homeowners defective drywall because selling salvaged drywall as new was not excepted, as (1) the seller did not know the defects, (2) no labeling as new or alteration caused the harm alleged, and (3) knowing the drywall was salvaged was not knowledge of defects. Holifield v. City Salvage, Inc., 230 So.3d 736, 2017 Miss. App. LEXIS 115 (Miss. Ct. App.), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 483 (Miss. 2017).

Consumer’s claims against the brand manufacturers of metoclopramide failed as the Mississippi Products Liability Act shielded the brand manufacturers from liability for products they did not create; the consumer did not ingest the brand manufacturers’ products. Lashley v. Pfizer, Inc., 750 F.3d 470, 2014 U.S. App. LEXIS 3207 (5th Cir. Miss. 2014).

Mother’s motion to amend her complaint under Fed. R. Civ. P. 60 to add a medical retail store as a defendant in her action seeking damages for her son’s injury in a wheelchair was denied because the mother voluntarily dismissed the store under Fed. R. Civ. P. 41(a)(2), the statute of limitations of Miss. Code Ann. §15-1-49 had expired, and the court failed to perceive any legitimate basis for the mother’s insistence that she was duped into believing that she had purchased the wheelchair by the “innocent seller” arguments of the store and the wheelchair’s manufacturer under Miss. Code Ann. §11-1-63. Braswell v. Invacare Corp., 760 F. Supp. 2d 679, 2010 U.S. Dist. LEXIS 140025 (S.D. Miss. 2010).

RESEARCH REFERENCES

ALR.

See A.L.R. Index to Annotations under Products Liability.

Products Liability: Ladders. 81 A.L.R.5th 245.

Products liability: Manufacturer’s postsale obligation to modify, repair, or recall product. 47 A.L.R.5th 395.

The government-contractor defense to state products – liability claims. 53 A.L.R.5th 535.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive. 54 A.L.R.5th 1.

Products liability: firearms, ammunition, and chemical weapons. 96 A.L.R.5th 239.

Am. Jur.

63 Am. Jur. 2d, Products Liability §§ 1, 2 et seq.

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 73.1 (Complaint, petition, or declaration – By bicyclist – Struck by automobile-Against manufacturer of slotted drainage grate placed in sidewalk).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability §§ 1 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 61.1 (Complaint, petition, or declaration – Against manufacturer and distributor of swimming pools-Negligent design and failure to warn).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 111.1 (Complaint, petition, or declaration – Against manufacturer and seller – Negligent design and breach of warranties for trailer and sliding tandem bogey).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 143.1 (Answer-Defense – Statutory bar).

20 Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 143.2 (Answer – Defense – Assumption of risk by plaintiff).

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 216.2 (Complaint in federal court – Against manufacturers of blood product contaminated with AIDS virus – Alternate liability theory).

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 291.1 (Complaint, petition, or declaration – Action against manufacturers of asbestos products and distributors of diatomaceous earth – By employee).

46 Am. Jur. Trials 631, The Use of Biomechanical Experts in Product Liability Litigation.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Taming an Elephant: A Closer Look at Mass Tort Screening and the Impact of Mississippi Tort Reforms, 26 Miss. C. L. Rev. 253, 2006/2007.

§ 11-1-64. Repealed.

Repealed by Laws, 2004, 1st ex. Sess., ch. 1, § 7, eff September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004.

[Laws, 2002, 3rd Ex Sess, ch. 4, § 4, eff from and after Jan. 1, 2003.]

Editor’s Notes —

Former §11-1-64 provided the procedure for dismissing a defendant whose liability is based solely on his status as a seller in the stream of commerce.

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; 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.”

§ 11-1-65. Punitive damages; limitations.

  1. In any action in which punitive damages are sought:
    1. Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
    2. In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
    3. If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.
    4. The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.
    5. In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant’s financial condition and net worth; the nature and reprehensibility of the defendant’s wrongdoing, for example, the impact of the defendant’s conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant’s awareness of the amount of harm being caused and the defendant’s motivation in causing such harm; the duration of the defendant’s misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.
      1. Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.
      2. In determining whether the award is excessive, the court shall take into consideration the following factors:

      1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant’s conduct as well as the harm that actually occurred;

      2. The degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct;

      3. The financial condition and net worth of the defendant; and

      4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct.

  2. The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same.
    1. In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following:
      1. Twenty Million Dollars ($20,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($1,000,000,000.00);
      2. Fifteen Million Dollars ($15,000,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($750,000,000.00) but not more than One Billion Dollars ($1,000,000,000.00);
      3. Five Million Dollars ($5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($750,000,000.00);
      4. Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($100,000,000.00) but not more than Five Hundred Million Dollars ($500,000,000.00);
      5. Two Million Five Hundred Thousand Dollars ($2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($50,000,000.00) but not more than One Hundred Million Dollars ($100,000,000.00); or
      6. Two percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.
    2. For the purposes of determining the defendant’s net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles.
    3. The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.
    4. The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant:
      1. If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or
      2. While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.
  3. Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.

HISTORY: Laws, 1993, ch. 302, § 2; Laws, 2002, 3rd Ex Sess, ch. 4, § 6; Laws, 2004, 1st Ex. Sess., ch. 1, § 4, eff from and after September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004.

Editor’s Notes —

Laws of 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, redesignated (g) as (2); inserted (3) and (4); and redesignated former (2) as (5) and made stylistic changes in (5).

The 2004 amendment, 1st Ex Sess, ch. 1, made a stylistic change in (1)(c); deleted “or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought” at the end of (2); substituted “Five Million Dollars ($5,000,000.00)” for “Ten Million Dollars ($10,000,000.00)” in (3)(a)(iii); substituted “Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00)” for “Seven Million Five Hundred Thousand Dollars ($7,500,000.00)” in (3)(a)(iv); substituted “Two Million Five Hundred Thousand Dollars ($2,500,000.00)” for “Five Million Dollars ($5,000,000.00)” in (3)(a)(v); substituted “Two percent (2%)” for “Four percent (4%)” in (3)(a)(vi); deleted (3)(d), which read “The exceptions provided in paragraph (d) shall not apply to an employer of a person acting outside the scope of such person’s employment or responsibility as an agent or employee”; and deleted (5), which provided that subsections (1) and (2) did not apply to contracts, libel and slander, or asbestos actions.

Cross References —

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

JUDICIAL DECISIONS

1. In general.

2. Breach of contract.

3. Torts.

4. Availability.

5. Bifurcated trials.

6. Bifurcated claims.

7. Burden of proof.

8. Calculation of net worth.

9. Attorney’s fees.

1. In general.

Trial court did not err in submitting the issue of punitive damages to the jury, as the jury heard evidence that the sandblasting company placed no warning on its sandbags even though silicosis had been a known danger of sandblasting for decades and the evidence permitted an inference that the company did nothing at all to warn of a known and deadly risk. Miss. Valley Silica Co. v. Barnett, 227 So.3d 1102, 2016 Miss. App. LEXIS 548 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 401 (Miss. 2017).

Trial court did not abuse its discretion by ruling that a jury instruction on gross negligence was not to be presented as a separate cause of action, but was more appropriate in the context of determining punitive damages only after a determination of liability against an attorney. White v. Nelson, 196 So.3d 1039, 2016 Miss. App. LEXIS 4 (Miss. Ct. App.), cert. denied, 202 So.3d 612, 2016 Miss. LEXIS 332 (Miss. 2016).

Bankruptcy court refused to reconsider its ruling that a judgment an injured party obtained in a Mississippi court was nondischargeable under 11 U.S.C.S. § 523(a)(6) because the debtor committed a willful and malicious injury when he assaulted the injured party, or to review the state court’s judgment awarding actual and punitive damages. Under the Rooker-Feldman doctrine, the question of whether the state court incorrectly assessed damages had to be answered by the state court, and while the judgment entered by the state court appeared to be inconsistent with Miss. Code Ann. §11-1-65, insofar as the award of punitive damages was concerned, it was not void under Mississippi law and was not subject to collateral attack in the bankruptcy court. Montgomery v. Canerdy (In re Canerdy), 2010 Bankr. LEXIS 2230 (Bankr. N.D. Miss. July 6, 2010).

Award of punitive damages was appropriate under Miss. Code Ann. §11-1-65(1)(a) because the jury returned a verdict finding that the appellee daughter had misappropriated her mother’s assets and the record before the appellate court supported the findings of the jury and the chancellor. Ultimately, the decision to award punitive damages was within the discretion of the chancellor as fact-finder, and there was no error with that decision. DeMoville v. Johnson (In re DeMoville P'ship), 26 So.3d 366, 2009 Miss. App. LEXIS 286 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 37 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 32 (Miss. Jan. 28, 2010).

In an insurance dispute involving a bad faith claim, an insurer’s motion to bifurcate the compensatory and punitive damages phases of trial was granted because it was consistent with the provisions of Miss. Code. Ann. §11-1-65. Simpson v. Econ. Premier Assur. Co., 2006 U.S. Dist. LEXIS 64603 (N.D. Miss. Sept. 8, 2006).

In an insurance dispute involving a bad faith claim, an insurer’s motion to prohibit the admission of evidence of its net worth was granted as to the compensatory damages phase of the bifurcated trial, but Miss. Code. Ann. §11-1-65 required that the trier of fact consider such evidence at the punitive damages stage of trial. Simpson v. Econ. Premier Assur. Co., 2006 U.S. Dist. LEXIS 64603 (N.D. Miss. Sept. 8, 2006).

If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury; therefore, in a contract case, a circuit court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages under Miss. Code Ann. §11-1-65. Bradfield v. Schwartz, 936 So. 2d 931, 2006 Miss. LEXIS 449 (Miss. 2006).

Trial court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages pursuant to the statutory mandates of Miss. Code Ann. §11-1-65(1)(c), which expressly provided that if a properly instructed jury returned a verdict for compensatory damages against a party, the trial court “shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.” Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 1940 Miss. LEXIS 205 (Miss. 1940).

When the jury returned a verdict which resulted in a compensatory damages award, a punitive damages phase of trial should have automatically proceeded, consistent with the applicable statutory provisions of Miss. Code Ann. §11-1-65(1). Bradfield v. Schwartz, 2006 Miss. LEXIS 268 (Miss. May 18, 2006), sub. op., 936 So. 2d 931, 2006 Miss. LEXIS 449 (Miss. 2006).

In order for punitive damages to be awarded, the plaintiff must demonstrate a willful or malicious wrong, or a gross, reckless disregard for the rights of others; punitive damages are only appropriate in the most egregious cases. A bank customer was not entitled to punitive damages for a bank teller’s fraudulent withdrawal of money from the customer’s account where: (1) the bank made prompt restitution; (2) the act complained of was committed solely by a single bank teller; (3) the bank’s investigation of the matter was complete, thorough, and proper; and (4) considering the totality of the circumstances, the bank’s conduct indicated a thorough attempt to satisfactorily resolve the matter. Wise v. Valley Bank, 861 So. 2d 1029, 2003 Miss. LEXIS 874 (Miss. 2003).

A proposed settlement amount of $ 4.4 million (6.5% of defendant’s net worth), in an action largely involving compliance with governmental guidelines and not involving terrible personal injuries, was well within any arguable zone of reasonableness. Smith v. Tower Loan of Miss., Inc., 216 F.R.D. 338, 2003 U.S. Dist. LEXIS 11070 (S.D. Miss. 2003), aff'd, 91 Fed. Appx. 952, 2004 U.S. App. LEXIS 4955 (5th Cir. Miss. 2004).

In borrowers’ suit arising from allegedly fraudulent loan transactions, remand was not necessary, because agents were fraudulently joined and the $ 75,000 jurisdictional threshold was met based upon the unspecified claims for punitive damages. Ross v. First Family Fin. Servs., Inc., 2002 U.S. Dist. LEXIS 23212 (N.D. Miss. Aug. 26, 2002).

Punitive damages were properly awarded in a case where two armed bail bondsmen entered a mother’s home without a search warrant or other authority looking for her son, who had jumped bail. Milburn v. Vinson, 850 So. 2d 1219, 2002 Miss. App. LEXIS 562 (Miss. Ct. App. 2002), cert. dismissed, 2004 Miss. LEXIS 607 (Miss. May 27, 2004).

Trial court did not err in refusing to grant decedent’s estate’s request for a jury instruction covering punitive damages in a wrongful death suit against a corporation arising out of a car accident, when the evidence did not support a punitive damages instruction in light of the fact that, although the corporation’s employee was negligent in the operation of the tractor-trailer, he was not grossly negligent. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 2002 Miss. LEXIS 181 (Miss. 2002).

Punitive damages pursuant to Miss. Code Ann. §11-1-65 (1994) were undivided claims of right with a potentially separable award and collectively exceeded the diversity jurisdiction amount. Remand of action to State court was thus denied. Agnew v. Commercial Credit Corp., 2002 U.S. Dist. LEXIS 15060 (S.D. Miss. July 11, 2002).

It was error for the court to refuse to submit the issue of punitive damages to the jury in an action for invasion of privacy by disclosure of private facts and intentional infliction of emotional distress, notwithstanding the trial court’s determination that the defendant son acted out of a vendetta toward what he perceived to be improper business activity by a timber company in its relations with the plaintiff father, rather than out of malice toward his father, because the vendetta did not give the son the right to recklessly disregard his father’s right to privacy and did not justify the outrageous conduct demonstrated by the son in subjecting his father to commitment proceedings to further his own interests. McCorkle v. McCorkle, 811 So. 2d 258, 2001 Miss. App. LEXIS 9 (Miss. Ct. App. 2001).

In an action arising from a motor vehicle accident, the defendant corporation, which owned the truck that struck the plaintiff’s vehicle, was entitled to summary judgment on the plaintiff’s claim for punitive damages since (1) there was no evidence that the driver of the truck acted with the necessary extreme conduct which would allow a reasonable jury to return a verdict for punitive damages against him individually, (2) the corporation could not be held liable for punitive damages on the basis of vicarious liability, and (3) there was no evidence that the corporation acted with actual malice or gross negligence or committed fraud in its screening, training, or monitoring of its drivers or in failing to remove unsafe drivers from the road. Hasty v. George, 2000 U.S. Dist. LEXIS 444 (N.D. Miss. Jan. 10, 2000).

An action for retaliatory discharge and tortious breach of contract was a contract action to which this section did not apply. Paracelsus Health Care Corp. v. Willard, 754 So. 2d 437, 1999 Miss. LEXIS 343 (Miss. 1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2219, 147 L. Ed. 2d 251, 2000 U.S. LEXIS 3836 (U.S. 2000).

Chancellor did not abuse his discretion in determining that punitive damages were appropriate where the plaintiffs clearly and convincingly proved that the defendant acted fraudulently. Holland v. Mayfield, 826 So. 2d 664, 1999 Miss. LEXIS 195 (Miss. 1999).

Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct in the future and should only be awarded in cases where the actions are extreme. Thomas v. Harrah's Vicksburg Corp., 734 So. 2d 312, 1999 Miss. App. LEXIS 59 (Miss. Ct. App. 1999).

The trial court’s decision to permit the jury to consider both compensatory and punitive damages at the same time at a point when, if the jury had been properly instructed, the issue of whether compensatory damages were to be awarded had not been resolved was in direct contravention of the statute, and, therefore, error. Harbin v. Jennings, 734 So. 2d 269, 1999 Miss. App. LEXIS 47 (Miss. Ct. App. 1999).

Under Mississippi law, customer could not receive punitive damages from casino for injuries sustained when cocktail waitress spilled hot coffee on his back, where customer admitted that someone bumped into waitress causing her to spill her tray of drinks and that waitress did not act with either malice or gross negligence. Spann v. Robinson Prop. Group, L.P., 970 F. Supp. 564, 1997 U.S. Dist. LEXIS 13037 (N.D. Miss. 1997).

Question of whether punitive damages could be recovered from life insurer in suit alleging tortious breach of contract, breach of fiduciary duties, and fraud was governed by common law, not by punitive damages statute. American Funeral Assur. Co. v. Hubbs, 700 So. 2d 283, 1997 Miss. LEXIS 249 (Miss. 1997).

2. Breach of contract.

In a case in which a jury awarded a judgment in favor of an insurance company after determining that the insureds had not demonstrated all of the necessary elements of their breach of contract claim by a preponderance of the evidence and the insureds filed a motion for reconsideration of summary judgment denying bad faith punitive damages, substantial evidence supported the jury’s determination that the insureds did not prove their breach of contract claim, which also required dismissal of their tortious breach of contract claim. Pursuant to Miss. Code Ann. §11-1-65, since they were not entitled to compensatory damages, they also were not entitled to punitive damages. Bryant v. Prime Ins. Syndicate, Inc., 2010 U.S. Dist. LEXIS 40976 (S.D. Miss. Apr. 27, 2010).

In an insured’s bad faith breach of contract suit against an insurer, the insured’s claim for punitive damages under Miss. Code Ann. §11-1-65(1)(a) was not sent to the jury because the evidence showed that the insurer undertook a proper investigation into the insured’s alleged disability before denying extended benefits, and thus, the insurer had not acted with malice, fraud, or gross negligence. Tarver v. Colonial Life & Accident Ins. Co, 294 Fed. Appx. 873, 2008 U.S. App. LEXIS 20777 (5th Cir. Miss. 2008).

In an action against an attorney for legal malpractice and tortious breach of contract, it was error to allow the issue of punitive damages to go the jury on the cause of action for breach of contract. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So. 2d 1347, 1998 Miss. LEXIS 116 (Miss. 1998).

3. Torts.

Punitive damages award against a drug manufacturer was affirmed where it stated that the award was reasonably and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition and that the evidence clearly supported an ongoing need to deter the manufacturer and others from engaging in fraudulent profit taking at the cost of the public trust, the public funds, the Medicaid program itself and the beneficiaries of the program, and it further explained that the manufacturer’s conduct was clearly reprehensible and had continued for a long period of time, and that the manufacturer clearly was aware of the misconduct and had attempted to conceal its actions. Watson Labs., Inc. v. State, 241 So.3d 573, 2018 Miss. LEXIS 7 (Miss. 2018).

There was sufficient evidence to meet the “clear and convincing” standard required for punitive damages under Miss. Code Ann. §11-1-65 in the employees’ intentional tort action against the employer and the court’s determination of the employer’s net worth at the time of judgment was proper. Franklin Corp. v. Tedford, 18 So.3d 215, 2009 Miss. LEXIS 426 (Miss. 2009).

Applying net worth of the employer at the time of trial in a workmans’ compensation case relating to intentional conduct of the employer, the circuit court properly reduced an award of punitive damages, pursuant to Miss. Code Ann. §11-1-65(3)(a)(v). Franklin Corp. v. Tedford, 2009 Miss. LEXIS 169 (Miss. Apr. 16, 2009).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the court denied the manufacturers’ postverdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) with respect to the $1.7 million in punitive damages awarded by the jury to the professional welder under Miss. Code Ann. 11-1-65; the jury was presented with evidence regarding what the manufacturers knew about the hazard of brain damage caused by manganese toxicity from welding fume exposure, when they knew it, what they did and did not do to investigate it, what actions they took and language they used to warn about it, and when, what the ongoing state of scientific knowledge was about it, and what standards were set by government and industry. All of these factors were relevant to the question of punitive damages, and the evidence presented showed that none of these factors was so weighty that it immunized the manufacturers from a jury finding that they acted with a willful, wanton, or reckless disregard for the safety of others; considering all of the evidence in the light and with all reasonable inferences most favorable to the professional welder, a reasonable jury could have concluded there was sufficient evidence to support an award of punitive damages. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the court denied the manufacturers’ postverdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) with respect to the $1.7 million in punitive damages awarded by the jury to the professional welder under Miss. Code Ann. 11-1-65 because the manufacturers provided no warning regarding the hazard of the brain injury the professional welder suffered despite substantial evidence of their knowledge that exposure to welding fumes could cause brain damage. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Where a married couple, in their products liability action against three welding rod manufacturers, advanced a valid justification for the award of attorneys’ fees that was widely recognized and accepted by courts applying Mississippi law: i.e., the manufacturer’s acted with gross negligence which evidences a willful, wanton or reckless disregard for the safety of others pursuant to Miss. Code Ann. §11-1-65(1)(a), and the proofs presented at trial provided a sufficient basis for a reasonable jury to conclude, by clear and convincing evidence, that the manufacturers were liable for punitive damages, the district court exercised its discretion to grant the married couple’s motion under Fed. R. Civ. P. 54(d) for an attorney’s fee award. Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, 2009 U.S. Dist. LEXIS 28806 (S.D. Miss. 2009), vacated, in part, 617 F.3d 346, 2010 U.S. App. LEXIS 17862 (5th Cir. Miss. 2010).

Because the finding that appellee operated the parties’ company with gross negligence, evidencing a willful, wanton, or reckless disregard for the financial security of the company, was supported by substantial evidence, the chancellor did not err by awarding appellant punitive damages based on appellee’s operation of the company; appellee admitted that he used the company’s funds for his personal expenses and for the expenses of his other two businesses, and the court-appointed accountant and the chancellor found that the company’s financial records were not properly maintained and were in poor condition. Griffith v. Griffith, 997 So. 2d 218, 2008 Miss. App. LEXIS 715 (Miss. Ct. App. 2008).

In a medical malpractice and wrongful death case, where there was no evidence that the doctor demonstrated a wilful or malicious wrong or a gross and reckless disregard for the rights of others, an award of punitive damages was improper. Further, punitive damages should not have automatically been submitted to the jury by the trial court; rather, a jury should only be permitted to consider punitive damages if the trial judge determines, under the totality of the circumstances and in light of the defendant’s conduct, that a reasonable, hypothetical juror could have identified either malice or gross disregard for the rights of others. Causey v. Sanders, 998 So. 2d 393, 2008 Miss. LEXIS 520 (Miss. 2008).

In an action in which a beneficiary filed suit against an insurance company alleging claims of tortious breach of contract, breach of fiduciary duty and duty of good faith and fair dealing, negligence, gross negligence, and intentional infliction of emotional distress, the insurance company was granted summary judgment where: (1) the insured executed a voluntary statement to police that her husband had stabbed her with a knife and a month after the knife wound, the insured died in her bed; (2) no reasonable juror could conclude that the insurance company acted with malice, gross negligence, or reckless disregard in wanting to review the autopsy report; and (3) the delay in receiving the autopsy report was due in part to the beneficiary’s failure to inform them of his address change. Washington v. Am. Heritage Life Ins. Co., 500 F. Supp. 2d 610, 2007 U.S. Dist. LEXIS 54120 (N.D. Miss. 2007).

In a debtor’s conversion action against a bank, the trial court erred in denying the bank’s motion for JNOV as to punitive damages as the only evidence that remotely approached one of the statutory requirements was a bank employee’s alleged out-of-court statement regarding his intention to put the debtor out of business. This self-serving hearsay statement was not clear and convincing evidence of actual malice, gross negligence, or the commission of actual fraud. Cmty. Bank v. Courtney, 884 So. 2d 767, 2004 Miss. LEXIS 1321 (Miss. 2004).

In a property owner’s trespass suit against a construction company which removed trees from his property, the trial court did not err in refusing to submit the issue of punitive damages to the jury as the evidence showed that the company thought the property in question belonged to the neighbor (who hired the company) and did not reenter the property once it was aware of the trespass. Teasley v. Buford, 876 So. 2d 1070, 2004 Miss. App. LEXIS 617 (Miss. Ct. App. 2004).

Award of punitive damages in favor of the borrower in the borrower’s action for conversion was improper under Miss. Code Ann. §11-1-65 because there was insufficient evidence to support a jury charge on that issue. A self-serving hearsay statement by a bank employee that he was going to put the borrower out of business was in no way clear and convincing evidence of actual malice, gross negligence, or the commission of actual fraud. Cmty. Bank v. Courtney, 2004 Miss. LEXIS 656 (Miss. June 10, 2004).

Once a jury returned a verdict in a customer’s favor on a claim sounding in conversion, it was the appropriate time to consider the issue of an unresolved claim for punitive damages under Miss. Code Ann. §11-1-65(1)(c). Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Even assuming that a trial court erred when it failed to take up punitive damages without any further prompting from a customer after a jury awarded damages on a claim sounding in conversion, the customer waived his right to complain by not raising the issue while the jury was still empaneled. Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Trial court did not commit plain error when it failed to proceed on punitive damages after a jury returned a verdict of actual damages on a customer’s claim sounding in conversion; the customer had no fundamental right to a possible assessment of punitive damages because he had already been made whole by the verdict for actual damages. Brown v. N. Jackson Nissan, Inc., 856 So. 2d 692, 2003 Miss. App. LEXIS 891 (Miss. Ct. App. 2003).

Employee admitted to not following the store policy regarding shoplifters, ignored the policy, followed the guest from the store on her own initiative, accused the guest of shoplifting, and committed the tort of assault by grabbing the guest by her underwear; because there was no proof that the store had any knowledge of prior incidents committed by the employee and the employee was acting on her own initiative, pursuant to Miss. Code Ann. §11-1-65(1)(a), punitive damages against the store should not have been allowed and the appellate court reversed and rendered the punitive damages assessed against the store. Gamble v. Dollar Gen. Corp., 852 So. 2d 5, 2003 Miss. LEXIS 352 (Miss. 2003).

In a products liability case, the trial court did not err in refusing to submit the punitive damages issue to the jury because there was no clear and convincing evidence of malice or gross negligence. Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 2003 Miss. LEXIS 135 (Miss. 2003).

Where there was no evidence that a new employer had the intent to harm a former employer by hiring a performer that was under contract, the issue of punitive damages should not have been submitted to the jury in a tortious interference with contractual relations case. Neider v. Franklin, 844 So. 2d 433, 2003 Miss. LEXIS 58 (Miss. 2003).

In a mother’s suit against a camp counselor and his employer, based on the mother’s claim that her child had been sexually assaulted by the counselor, the trial court properly refused to give a punitive damages instruction; the counselor was not acting within the scope of his employment at the time of the assault, the employer did not benefit from the assault, the jury did not find that the employer knew of the counselor’s homosexual tendencies, and a reasonable jury could not find malice, gross neglect, or reckless disregard by the employer. Doe v. Salvation Army, 835 So. 2d 76, 2003 Miss. LEXIS 29 (Miss. 2003).

In the absence of any proof that commercial lenders regularly maintained a system of cross-referencing loans and the bank’s prospective purchases, the failure to institute that system was not reckless or gross behavior warranting punitive damages; thus, the award of punitive damages was improper and the Supreme Court reversed and rendered the award. AmSouth Bank v. Gupta, 838 So. 2d 205, 2002 Miss. LEXIS 357 (Miss. 2002).

Remittitur was ordered in a case involving an employer’s bad faith failure to pay worker’s compensation benefits because the punitive damages awarded were excessive where the evidence did not show that the employer’s conduct met the required degree of reprehensibility under Miss. Code Ann. §11-1-65(1)(a). Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

In an automobile accident case, plaintiff was not entitled to punitive damages under Miss. Code Ann. §11-1-65 law where facts showed defendant did not run stop sign, did not fail to check vehicle’s speed, tried to take evasive action to avoid accident, had not consumed alcohol, and did not leave the scene of the accident; defendants’ conduct did not amount to gross negligence and accordingly, defendants were entitled to partial summary judgment on the issue of punitive damages. Terrell v. W.S. Thomas Trucking, Inc., 2001 U.S. Dist. LEXIS 25455 (N.D. Miss. Mar. 6, 2001).

Beneficiaries of decedent met their burden of proof against tire manufacturer in products liability suit through the testimony of employees of the tire manufacturer who stated that in the course of their many years of employment with the tire manufacturer, they had personal knowledge that bad stock had been used in the manufacture of tires. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

A simple mathematical formula cannot be used to determine whether a punitive damage award is excessive or constitutional. Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679, 2002 Miss. LEXIS 9 (Miss.), cert. denied, 537 U.S. 820, 123 S. Ct. 97, 154 L. Ed. 2d 27, 2002 U.S. LEXIS 5585 (U.S. 2002).

Plaintiff in a wrongful death case was not entitled to a jury instruction on punitive damages, as there was no showing of a causal nexus between the defendant’s alleged gross negligence and the fatal accident. Choctaw Maid Farms, Inc. v. Hailey, 2001 Miss. LEXIS 302 (Miss. Oct. 31, 2001).

Operating a motor vehicle on a public street while under the influence of intoxicants to the extent that the driver’s abilities were substantially impaired demonstrated the kind of gross negligence contemplated in Miss. Code Ann. §11-1-65(1)(a) (Rev. 1991) and punitive damages were therefore proper. Savage v. Lagrange, 2001 Miss. App. LEXIS 528 (Miss. Ct. App. Dec. 18, 2001).

In an action arising from an accident in which a tractor-trailer rear-ended a tractor, the defendants were entitled to summary judgment on the issue of punitive damages where the plaintiff failed to bring forth any evidence of an action by the defendants that amounted to gross negligence or reckless disregard for others and the defendants brought forth evidence that the truck driver was not under the influence of drugs or alcohol while operating the tractor-trailer. Miller v. Hunt, 2000 U.S. Dist. LEXIS 9924 (N.D. Miss. July 6, 2000).

4. Availability.

After a district court awarded punitive damages based upon evidence of willful and malicious acts of conversion by a bankruptcy debtor, and the bankruptcy court properly gave preclusive effect to its decision and held the debt nondischargeable, the award of punitive damages was also nondischargeable. Blake v. Custom Recycling Servs., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 148840 (N.D. Miss. Nov. 3, 2015).

Chapter 13 debtor who prevailed in an adversary proceeding she filed against a consumer financial services business and a person who owned the business, on her claim alleging that she could recover title to a mobile home she transferred to the owner because the transfer was constructively fraudulent under 11 U.S.C.S. § 548, was awarded punitive damages, attorney’s fees, and costs; although Mississippi law did not favor punitive damages, they were appropriate in this case under Miss. Code Ann. §11-1-65 because the owner misrepresented the nature of the transaction and did not provide the debtor with complete discovery, and because the debtor was entitled to an award of punitive damages she could also recover her attorney’s fees and costs. Nickelson v. Franklin Check Serv., LLC (In re Nickelson), 552 B.R. 149, 2016 Bankr. LEXIS 2310 (Bankr. S.D. Miss. 2016).

In a case in which plaintiff claimed he was terminated for reporting an illegal kickback scheme, the circuit court erred in denying a punitive-damages instruction without conducting an evidentiary hearing to determine whether punitive damages were appropriate. Roop v. Southern Pharms. Corp., 188 So.3d 1179, 2016 Miss. LEXIS 146 (Miss. 2016).

Chancellor properly declined to award actual damages, punitive damages, or attorney’s fees to the owners because the neighbors’ conduct was not malicious in any way, they had reason to believe that the restrictive covenants at issue no longer applied, stopped cutting trees upon being served with a restraining order, and the restrictive covenants failed to address the issue of attorney’s fees. Robertson v. Catalanotto, 205 So.3d 666, 2016 Miss. App. LEXIS 52 (Miss. Ct. App. 2016).

When a pharmaceutical provider reported false drug prices to a third party knowing the State of Mississippi would rely on that information to calculate Medicaid reimbursements to pharmacies for those drugs, the State’s recovery of punitive damages was properly limited by Miss. Code Ann. §11-1-65(3)(a) because the statute plainly applied to actions by the State. Sandoz, Inc. v. State (In re Miss. Medicaid Pharm. Average Wholesale Price Litig.), 190 So.3d 829, 2015 Miss. LEXIS 545 (Miss. 2015).

Tenant was properly awarded punitive damages against landlords, even though the award allegedly exceeded the landlords’ net worth, because, inter alia, proof of the landlords’ net worth was not a prerequisite. Lang v. Beasley, 159 So.3d 593, 2014 Miss. App. LEXIS 491 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 143 (Miss. 2015).

In an asbestos case alleging failure to warn, an award of punitive damages had to be vacated because the trial court’s unnecessary comments indicated the trial court considered the jury’s compensatory damages award to be inadequate. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

In an asbestos case alleging failure to warn, the issue of punitive damages was properly submitted to a jury because (1) there was evidence that the manufacturer knew the manufacturer’s OSHA-compliant warning was inadequate but the manufacturer did nothing to supplement the warning, (2) the jury was adequately instructed on the issue, and (3) a prior release did not address punitive damages. Union Carbide Corp. v. Nix, 142 So.3d 374, 2014 Miss. LEXIS 271 (Miss. 2014).

Insureds were not entitled to punitive damages, Miss. Code Ann. §11-1-65(1)(a), regarding an insurer’s alleged bad faith delay in paying an uninsured motorist claim because the reason for the delay was the insurer’s ongoing investigation concerning causation and evaluation of the claim, and, as such, the insurer had an arguable reason for the delay; the insurer ultimately tendered full payment of the claim. James v. State Farm Mut. Auto., Ins. Co., 2011 U.S. Dist. LEXIS 48845 (S.D. Miss. May 6, 2011), aff'd in part and rev'd in part, 719 F.3d 447, 2013 U.S. App. LEXIS 12816 (5th Cir. Miss. 2013), aff'd in part and rev'd in part, 743 F.3d 65, 2014 U.S. App. LEXIS 1741 (5th Cir. Miss. 2014).

It was undisputed that the trucking company collected payment for all of the work performed by the construction company, that, as a matter of law, the contract was modified to include all of the work performed by the construction company, and that the trucking company blatantly breached its promise to compensate the construction company; moreover, the construction company provided sufficient proof that the trucking company acted in bad faith, with complete disregard for the construction company’s rights, seeking to reap the benefits of its contract while at the same time denying its obligations. Based on the evidence, a reasonable juror could find that the trucking company had breached the contract either maliciously, by an intentional wrong, or with reckless disregard for the construction company’s rights; therefore, the trial court erred by not submitting the issue of punitive damages to the jury pursuant to Miss. Code Ann. §11-1-65(1)(c)-(d). T.C.B. Constr. Co. v. W. C. Fore Trucking, Inc., 134 So.3d 701, 2013 Miss. LEXIS 49 (Miss. 2013).

Insureds were not entitled to punitive damages because an insurer did not breach its contract of insurance or deny coverage in bad faith for two underlying lawsuits. Mitchell v. State Farm Fire & Cas. Co., 799 F. Supp. 2d 680, 2011 U.S. Dist. LEXIS 69777 (N.D. Miss. 2011).

Facts established by the record did not support the imposition of punitive damages becuase the facts known to, or reasonably knowable by defendant prior to the time the borrower was finally deposed, did not support a reasonable finding that defendant lacked a legitimate or arguable reason for its position, or that it had breached its duty to conduct a reasonable investigation. Peoples Bank of the S. v. Bancinsure, Inc., 753 F. Supp. 2d 649, 2010 U.S. Dist. LEXIS 116176 (S.D. Miss. 2010), dismissed, 2011 U.S. Dist. LEXIS 156159 (S.D. Miss. July 7, 2011).

Where punitive damages were not available under Miss. Code Ann. §11-1-54(1)(a) in a personal injury suit based on a vehicular collision because the driver’s conduct amounted to only simple negligence in failing to operate a vehicle in a safe manner and maintain a proper lookout, but it did not constitute willful or wanton disregard for the safety of others, such damages were also unavailable against the driver’s employer on a theory of vicarious liability. Dawson v. Burnette, 650 F. Supp. 2d 583, 2009 U.S. Dist. LEXIS 62579 (S.D. Miss. 2009).

Punitive damages were not available under Miss. Code Ann. §11-1-54(1)(a) in a personal injury suit based on a vehicular collision because defendants’ conduct amounted to only simple negligence in failing to operate a vehicle in a safe manner and maintain a proper lookout, but it did not constitute willful or wanton disregard for the safety of others. Dawson v. Burnette, 650 F. Supp. 2d 583, 2009 U.S. Dist. LEXIS 62579 (S.D. Miss. 2009).

Insured was not entitled to punitive damages under Miss. Code Ann. §11-1-65 for an insurer’s alleged bad faith delay in commencing a claims investigation because the terms of the policy at issue required the insured to survive for 180 days after his accident before becoming eligible for disability benefits, and the insurer commenced the investigation at end of the 180-day period, evidencing no willful, wanton, or fraudulent conduct by the insurer. Barnes v. Stonebridge Life Ins. Co., 624 F. Supp. 2d 574, 2009 U.S. Dist. LEXIS 21623 (S.D. Miss. 2009).

In an easement dispute, punitive damages were properly awarded under Miss. Code Ann. §11-1-65(1)(a) where a commercial property owner removed a sign with a blow torch, engaged in harassment, demanded payment for parking and signage covered under the easement, installed parking bumpers, and erected a fence on neighboring property. Warren v. Derivaux, 996 So. 2d 729, 2008 Miss. LEXIS 590 (Miss. 2008).

Casino patron’s Miss Code Ann. §11-1-65 claim for punitive damages in connection with injuries she allegedly sustained when a cocktail waitress dropped a tray of drinks on or near the patron, while attempting to serve another customer, failed because there was no evidence that the waitress acted with gross negligence when she dropped the tray after the customer unexpectedly and excitedly threw up her hands after winning a poker game. Callender v. Imperial Palace of Miss., LLC, 2008 U.S. Dist. LEXIS 71292 (S.D. Miss. Sept. 19, 2008).

After a guardianship account was drained, the wards prevailed in their suit against the bank for breaching its duty by allowing the funds on deposit to be converted without a court order. Because the evidence established that the bank was not grossly negligent and did not engage in fraud or intentional misconduct, the chancery court erred in awarding punitive damages against the bank under Miss. Code Ann. §11-1-65. Williams v. Duckett (In re Duckett), 991 So. 2d 1165, 2008 Miss. LEXIS 307 (Miss. 2008).

Under Miss. Code Ann. §11-1-65, the issue of whether two insureds were entitled to punitive damages should not have been sent to the jury because the insureds did not show that their homeowner’s insurer acted with actual malice in processing their claim, and the insurer had an arguable basis for denying the insureds’ claim, as evidence showed that the home was destroyed by flooding, a peril that was excluded from coverage; the insurer reasonably relied on a valid and enforceable anti-concurrent causation clause in denying coverage; and the insurer extensively investigated the insureds’ claim to determine whether the destruction of the home was caused by flooding or by hurricane winds, which was a covered peril. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Under Miss. Code Ann. §11-1-65, punitive damages should not have been awarded against a homeowner’s insurer in two insureds’ suit to recover policy proceeds and damages for bad faith; although the insurer advanced an unsuccessful legal position regarding the allocations of burdens of proof, it was not liable for punitive damages for advancing a legal argument over a disputed issue. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Under Miss. Code Ann. §11-1-65, punitive damages should not have been awarded against a homeowner’s insurer in two insureds’ suit to recover policy proceeds and damages for bad faith; although the insurer withheld payment after its expert opined that some of the damage to the insureds’ home was caused by wind, a peril that was covered under the policy, the insurer had advanced $ 2,000 to the insureds within 10 days after the destruction of the home, and the insureds had a two percent deductible, the combined sums of which may have been adequate to cover the damages caused by wind. Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 2008 U.S. App. LEXIS 7419 (5th Cir. Miss. 2008).

Employee was not entitled to punitive damages under Miss. Code Ann. §11-1-65 as to his claim that an insurer and its management company acted in bad faith in waiting four months to approve surgery for the employee’s work-related injury because (1) the evidence showed that the employee caused the delay by refusing to release his medical records and by making misstatements about his prior related injuries; (2) the management company was entitled to investigate whether the prior injuries contributed to the current injury for purposes of determining coverage; and (3) the management company did not violate the 48-hour rule in § IV(A)(1) of the Utilization Management Guidelines of the Official Mississippi Uniform Worker’s Compensation Fee Schedule because it approved the surgery within 2 days of receiving all of the information necessary to make the coverage decision. McLendon v. Wal-Mart Stores, Inc., 521 F. Supp. 2d 561, 2007 U.S. Dist. LEXIS 81264 (S.D. Miss. 2007).

Lessees were properly awarded punitive damages where the landman stopped production of the well and after only a few months had passed, contrary to the interest of the lease and the lessees’ interest, the landman contacted the landowner to negotiate and obtain a new lease for the well, and upon the execution of a new lease the landman resumed production from the well; the lessees claimed that they were never informed that the well was to be shut down by the landman. Gill v. Gipson, 982 So. 2d 415, 2007 Miss. App. LEXIS 520 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 238 (Miss. 2008).

Because an insured failed to prove that she suffered damages as a direct and proximate result of any reasonable reliance on any perceived negligent misrepresentation by an insurer and its agent, she could not prevail on her claim of negligent misrepresentation, nor was she entitled to a jury’s award of punitive damages pursuant to Miss. Code Ann. §11-1-65(c). Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 2007 Miss. LEXIS 398 (Miss. 2007).

It was not clear whether the court should have submitted the question of punitive damages to the jury before discovery was completed in a case involving the alleged forgery of a divorcee’s signature by her former husband on vehicle lease and purchase agreements since the court could not determine from the summary judgment evidence whether the divorcee had established the elements for an award of punitive damages set forth in Miss. Code Ann. §11-1-65(1)(d) against the dealership. Dowdy v. Palmer, 2006 U.S. Dist. LEXIS 3176 (S.D. Miss. Jan. 19, 2006).

Because the customer, in his action against the dealership for breach of contract, fraud, and infliction of emotional distress, failed to present evidence of compensatory damages, it was impossible to consider punitive damages under Miss. Code Ann. §11-1-65. Sumler v. East Ford, Inc., 915 So. 2d 1081, 2005 Miss. App. LEXIS 981 (Miss. Ct. App. 2005).

5. Bifurcated trials.

Tenant was properly awarded punitive damages against landlords because, inter alia, the landlords were not denied an evidentiary hearing, as the record reflected that the landlords had no further evidence to present. Lang v. Beasley, 159 So.3d 593, 2014 Miss. App. LEXIS 491 (Miss. Ct. App. 2014), cert. denied, 158 So.3d 1153, 2015 Miss. LEXIS 143 (Miss. 2015).

In a suit in which two insureds alleged that they were owed proceeds under two property insurance policies and were also seeking punitive damages for the insurer’s alleged bad faith and delays in payment, a bifurcated trial was ordered to be held in accordance with Miss. Code Ann. §11-1-65. Letoha v. Nationwide Mut. Ins. Co., 2008 U.S. Dist. LEXIS 30865 (S.D. Miss. Feb. 28, 2008).

In a case involving a dispute over claimed insurance coverage, the court granted the insurer’s request for a bifurcated trial, in accordance with Miss. Code Ann. §11-1-65, ruling that the issue of punitive damages would be tried separately from other issues in the case, such as coverage, liability, and actual damages. Fowler v. State Farm Fire & Cas. Co., 2008 U.S. Dist. LEXIS 63312 (S.D. Miss. July 25, 2008).

6. Bifurcated claims.

Although a jury ruled in favor of an insured in a dispute over policy proceeds for the loss of the insured’s home due to fire, the court did not send the insured’s punitive damages claim to the jury as the insured did meet the standard under Miss. Code Ann. §11-1-65 of showing that the insurer acted with malice, fraud, or gross negligence in denying the claim where the insurer suspected that the insured had committed arson, thus causing the loss of the home. GuideOne Ins. Co. v. Bridges, 2009 U.S. Dist. LEXIS 16035 (S.D. Miss. Mar. 2, 2009).

In insureds’ suit asserting claims for breach of insurance policies and bad faith with regard to payment of the insureds’ property damage claims related to Hurricane Katrina, bifurcation of the insureds’ coverage and punitive damages claims was appropriate under Miss. Code Ann. §11-1-65; however, because it was difficult to consider the issues of coverage and breach of contract without some information regarding the claims handling process, some evidence about that process would be allowed. Ross v. Metro. Prop. & Cas. Ins. Co., 2008 U.S. Dist. LEXIS 81114 (S.D. Miss. Aug. 25, 2008).

7. Burden of proof.

Chancery court erred by awarding the dominant owner punitive damages without requiring the dominant owner to prove by clear and convincing evidence that the subservient owner’s actions were malicious. Muirhead v. Cogan, 158 So.3d 1259, 2015 Miss. App. LEXIS 121 (Miss. Ct. App. 2015).

Trial court did not abuse its discretion denying a subcontractor’s claim for punitive damages because, while the contractor breached the parties’ contract by refusing to complete payment to the subcontractor and the contractor’s contention that the subcontractor received full payment was legally inaccurate, the subcontractor failed to prove the contractor acted in bad faith or breached its fiduciary duty to the subcontractor. Bar-Til, Inc. v. Superior Asphalt, Inc., 164 So.3d 1028, 2014 Miss. App. LEXIS 452 (Miss. Ct. App. 2014).

Builder’s claim that homeowners’ failure to prove some net worth of the builder precluded an award of punitive damage had no merit because the homeowners had no burden to establish that the builder had the financial ability to pay a punitive damage award. Woodkrest Custom Homes Inc. v. Cooper, 108 So.3d 460, 2013 Miss. App. LEXIS 24 (Miss. Ct. App. 2013).

Award of punitive damages was improper because, by instructing the jury that it could award punitive damages pursuant to a preponderance-of-evidence standard, the circuit court’s instruction relaxed the necessary burden of proof and in turn, it committed a clear error of law under Miss. Code Ann. §11-1-65(1)(a). AmFed Cos., LLC v. Jordan, 34 So.3d 1177, 2009 Miss. App. LEXIS 557 (Miss. Ct. App. 2009).

8. Calculation of net worth.

Because neighbors failed to provide evidence sufficient to enable the trial court to make a determination of their net worth, the trial court was not required to apply the statutory formula based on speculation or guesswork; the neighbors failed to make a full and complete disclosure of their assets in their bankruptcy filings and could have understated the value of their property or other assets. Moore v. McDonald, 210 So.3d 563, 2017 Miss. App. LEXIS 61 (Miss. Ct. App. 2017).

When a pharmaceutical provider reported false drug prices to a third party knowing the State of Mississippi would rely on that information to calculate Medicaid reimbursements to pharmacies for those drugs, the provider’s net worth was properly calculated for purposes of a punitive damages award because the provider’s most recent net worth using generally accepted accounting principles was used. Sandoz, Inc. v. State (In re Miss. Medicaid Pharm. Average Wholesale Price Litig.), 190 So.3d 829, 2015 Miss. LEXIS 545 (Miss. 2015).

9. Attorney’s fees.

Town and school district were not entitled to an award of attorney’s fees as punitive damages against a county because the court did not find the county’s conduct was so extreme and outrageous that the county should bear the expense of litigation. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

RESEARCH REFERENCES

ALR.

Intoxication of automobile driver as basis for awarding punitive damages. 33 A.L.R.5th 303.

Validity of state statutory cap on punitive damages. 103 A.L.R.5th 379.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive. 54 A.L.R.5th 1.

Liability of vendor for food or beverage spilled on customer. 64 A.L.R.5th 205.

Liability of cigarette manufacturers for punitive damages. 108 A.L.R.5th 343.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription – Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072). 109 A.L.R.5th 397.

Recovery of Punitive Damages for Exposure to Asbestos. 24 A.L.R. 6th 497.

See A.L.R. Index to Annotations under Punitive Damages.

Am. Jur.

22 Am. Jur. 2d, Damages §§ 572 et seq.

675, 677-683.

8 Am. Jur. Pl & Pr Forms (Rev), Damages, Forms 111-117, 311-322.

20A Am. Jur. Pl & Pr Forms (Rev), Products Liability, Form 291.1 (Complaint, petition, or declaration-Action against manufacturers of asbestos products and distributors of diatomaceous earth – By employee).

23A Am. Jur. Pl & Pr Forms (Rev), Torts, Form 26.1 (Complaint, petition, or declaration – Negligent and intentional disregard for safety causing asbestos poisoning-Individual plaintiff).

CJS.

CJS, Damages §§ 117 et seq.

133, 159, 162(3), 188.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Litigation in Mississippi Today: A Symposium: Mississippi’s Civil Justice System: Problems, Opportunities and Some Suggested Repairs, 71 Miss. L.J. 395, Winter, 2002.

Litigation in Mississippi Today: A Symposium: Why Mississippi Needs to Pay Attention to National Trends on Punitive Damages, 71 Miss. L.J. 579, Winter, 2002.

Punitive Damages in Mississippi: What Has Happened, What Is Happening and What Is Coming Next, 73 Miss. L.J. 135, Fall, 2003.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

§ 11-1-66. Immunity of premise owners from civil liability in certain circumstances.

No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or the independent contractor’s employees resulting from dangers of which the contractor knew or reasonably should have known.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 4, § 7; Laws, 2004, 1st ex. Sess., ch. 1, § 5, eff from and after September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004.

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; 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.”

Amendment Notes —

The 2004 amendment, 1st Ex Sess, ch. 1, rewrote the section, which formerly read: “No owner, occupant, lessee or managing agent of property shall be civilly liable for the criminal acts of a third party, unless such owner, occupant, lessee or managing agent knew or, with the exercise of reasonable care, should have known of the risk of criminal conduct on such property and the failure to exercise reasonable care to deter such foreseeable conduct is a proximate cause of damages to an individual or entity.”

JUDICIAL DECISIONS

1.-2. [Reserved for future use.]

3. Independent contractor or employee.

4. No duty to warn.

1.-2. [Reserved for future use.]

3. Independent contractor or employee.

Appellant claimed that the business knew about the oil pits on appellant’s property and that knowledge was imputed to appellee, who was an independent contractor; however, while appellant claimed the business’s knowledge was undisputed, the testimony suggested otherwise, and appellee testified that there was no indication of the presence of oil pits, and the danger of falling into one did not arise out of and was not connected with the work appellee performed as a delivery driver. Fairley Constr. Servs. v. Savage, 265 So.3d 203, 2019 Miss. App. LEXIS 61 (Miss. Ct. App. 2019).

Development company and the company’s owner were immune from liability for a worker’s injuries because (1) the company and owner owned a construction site where the worker was injured at the time of injury, and (2) the worker’s employer knew or should have known of the injury-causing condition. Lopez v. Bellamare Dev. LLC, — So.3d —, 2019 Miss. App. LEXIS 390 (Miss. Ct. App. Aug. 13, 2019).

Mississippi Court of Appeals declined to extend the limited exception for licensees in Hoffman v. Planters Gin Co., 358 So. 2d 1008 (Miss. 1978), to this statute. Therefore, in a negligence case, a property owner was immune from liability because an independent contractor either knew or should have known of the allegedly dangerous conditions involving a forklift that he had driven for more than a year before a fall; moreover, he knew that the stairs were wet, grimy, and dirty before he fell on them. Tanner v. Roseburg Forest Prods. S., 185 So.3d 1062, 2016 Miss. App. LEXIS 31 (Miss. Ct. App. 2016).

Operator of a nuclear power plant was entitled to summary judgment on an injured employee’s premises liability lawsuit because the operator had no duty to warn an independent contractor and its employee of dangers inherent in the job when the employee for the independent contractor was injured in a fall. McSwain v. Sys. Energy Res., Inc., 97 So.3d 102, 2012 Miss. App. LEXIS 508 (Miss. Ct. App. 2012).

4. No duty to warn.

In a case in which plaintiffs were injured when they fell to the ground after the scaffolding for the second-story formwork collapsed, the circuit court properly granted summary judgment in favor of the property owner because the property owner had no duty to warn plaintiffs about the condition of the scaffolding as it did not exist at the time that the property owner surrendered control of the property to the general contractor; and the property owner had no control over any aspect of the scaffolding. McKean v. Yates Eng'g Corp., 210 So.3d 1037, 2015 Miss. App. LEXIS 446 (Miss. Ct. App. 2015), aff'd, 200 So.3d 431, 2016 Miss. LEXIS 385 (Miss. 2016).

§ 11-1-66.1. Landowners Protection Act; limitation of liability of landowners for certain injuries of invitees injured on landowner's property.

  1. This section shall be known and may be cited as the “Landowners Protection Act.”
  2. For any premises-liability actions brought under the laws of the State of Mississippi, no person who owns, leases, operates, maintains, or manages commercial or other real property in the State of Mississippi and no director, officer, employee, agent or independent contractor acting on behalf of any such person shall be civilly liable to any invitee who is injured on said property as the result of the willful, wanton or intentional tortious conduct of any third party who is not a director, officer, employee or agent of the person who owns, leases, operates, maintains or manages such commercial or other real property unless the injured party can prove by a preponderance of the evidence that:
    1. The conduct of said third party occurred on the property;
    2. The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party; and
    3. The third party’s conduct proximately caused the economic and noneconomic damages suffered by the injured party.
  3. For any civil actions brought under the laws of the State of Mississippi for the purpose of alleging liability for the injury of an invitee as described in subsection (2) of this section, an atmosphere of violence shall only be established by similar violent conduct:
    1. Which occurred three (3) or more times within three (3) years before the third party act at issue;
    2. Which took place only on the commercial or other real property where the acts of the third party occurred; and
    3. Which are based upon three (3) or more separate events or incidents that resulted in three (3) or more arraignments of an individual for a felony involving an act of violence.
  4. For any civil actions brought under the laws of the State of Mississippi for the purpose of alleging liability for the injury of an invitee as described in subsection (2) of this section, civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage unless the person who owns, leases, operates, maintains or manages the property has actual, not constructive, knowledge of the prior violent nature of said third party.
  5. If any provision of this section or its application to any person or circumstance is held unconstitutional or otherwise invalid, the remainder of this section or the application of the provision to other persons or circumstances is not affected.
  6. Nothing in this section shall be construed to alter the provisions of Section 97-3-15.
  7. For purposes of this section, “premises-liability action” means a civil action based upon the duty owed to someone injured on a landowner’s premises as a result of conditions or activities on the land.

HISTORY: Laws, 2019, ch. 435, § 1, eff from and after July 1, 2019.

§ 11-1-67. Authority to sue traders in firearms reserved to state.

  1. The authority to bring an action against any firearms or ammunition manufacturer, distributor or dealer duly licensed under federal law on behalf of any governmental entity created by or pursuant to an act of the Mississippi Legislature or the Mississippi Constitution of 1890, or any department, agency or authority thereof, for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to the lawful design, manufacture, distribution or sale of firearms, firearm components, silencers, ammunition or ammunition components to the public, shall be exclusively reserved to the state. This section shall not prohibit a political subdivision from bringing an action against a firearm or ammunition manufacturer, distributor or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship.
  2. “Political subdivision” and “governmental entity” shall have the meanings ascribed in Section 11-46-1.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 4, § 9, eff from and after Jan. 1, 2003.

§ 11-1-69. Prohibition of hedonic damages in civil actions.

  1. In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life. However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering. The determination of the existence and extent of recovery for pain and suffering and loss of enjoyment of life shall be a question for the finder of fact, subject to appellate review, and the monetary value of the pain and suffering and loss of enjoyment of life shall not be made the subject of expert testimony.
  2. In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 4, § 10, eff from and after Jan. 1, 2003.

JUDICIAL DECISIONS

1. Damages not hedonistic.

2. Jury instructions.

1. Damages not hedonistic.

In a personal injury products liability lawsuit, an award of damages to the decedent’s estate was not inflammatory or in violation of Miss. Code Ann. §11-1-69(2) because, considering the actual damages and the testimony of the decedent’s mother as to the family’s loss of society and companionship of a young son and brother on the verge of manhood, and the pain and suffering that he must have experienced between the time of the tire’s rupture when he was alive and when the rolling automobile stopped against a tree and he was dead, the jury’s award was proper. There was evidence to support the damages, and the jury award to the estate was not based upon hedonic damages. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

2. Jury instructions.

In a beneficiary’s wrongful death suit against a doctor, the trial court committed reversible error in instructing the jury that it could consider the “value of life” of the decedent in awarding damages because Miss. Code Ann. § 11-1- 69(2) stated that in any wrongful death action, there would be no recovery for loss of enjoyment of life caused by death. Laney v. Vance, 112 So.3d 1079, 2013 Miss. LEXIS 171 (Miss. 2013).

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

§ 11-1-71. Immunity of medical personnel who provide volunteer service in school programs.

  1. Any licensed physician, certified nurse practitioner, psychologist or physician assistant who voluntarily provides needed medical or health services to any program at an accredited school in the state without the expectation of payment shall be immune from liability for any civil action arising out of the provision of such medical or health services provided in good faith on a charitable basis. This section shall not extend immunity to willful acts or gross negligence. Except in cases of rendering emergency care wherein the provisions of Section 73-25-37, Mississippi Code of 1972, apply, immunity under this section shall be extended only if the physician, certified nurse practitioner, psychologist or physician assistant and patient execute a written waiver in advance of the rendering of such medical services specifying that such services are provided without the expectation of payment and that the licensed physician or certified nurse practitioner, psychologist or physician assistant shall be immune as provided herein.
  2. Any physician who voluntarily renders any medical service under a special volunteer medical license authorized under Section 73-25-18 without any payment or compensation or the expectation or promise of any payment or compensation shall be immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service unless the act or omission was the result of the physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written or oral agreement for the physician to provide a voluntary noncompensated medical service before the rendering of the service by the physician.

HISTORY: Laws, 2002, 3rd Ex Sess, ch. 2, § 11, eff from and after Jan. 1, 2003.

RESEARCH REFERENCES

Law Reviews.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Chapter 3. Practice and Procedure in Supreme Court

§ 11-3-1. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hemingway’s 1917, § 3182; 1930, § 3371; 1942, § 1955; Laws, 1916, ch. 163]

Editor’s Notes —

Former §11-3-1 specified the return days for appeals.

§ 11-3-3. Appeals in some cases returnable at any time.

Appeals from judgments against persons deprived of their liberty in cases of habeas corpus, and from judgment on informations in the nature of quo warranto to try the right to a public office, whether state, district, county, or municipal, and in actions of mandamus where the public interest is concerned, and in cases at law or in chancery involving taxes claimed by the state, county, or municipality, may be returnable before the Supreme Court immediately, without reference to the return days for other appeals; and when the transcript of the record of the case shall be filed in the office of the clerk of the Supreme Court, the appellee having been summoned to appear and answer the appeal, ten days after service of the summons on him or his attorney, the court shall consider such cases as entitled to be heard without regard to the district from which they are brought, and in preference to all civil cases, and they shall be heard and disposed of with all convenient speed.

HISTORY: Codes, 1880, § 1403; 1892, § 4343; 1906, § 4907; Hemingway’s 1917, § 3185; 1930, § 3372; 1942, § 1956.

Cross References —

Appeal in habeas corpus, see §§11-43-53,11-43-55.

Conclusiveness of judgment in habeas corpus, see §11-43-43.

Rules governing practice and procedure in appeals to the Supreme Court, see Miss. R. App. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Causes entitled to advancement.

3. Advancement not warranted.

1. In general.

Motion to advance case for hearing in supreme court made by appellee must be overruled where record has been filed in supreme court at instance of appellee, the successful party in lower court, who is not appealing, no bond has been filed by party appealing and time for perfecting appeal has not expired, as there is no right or method whereby successful litigant in lower court, who is not appealing, can prosecute or perfect appeal on behalf of losing party who is taking appeal. Gaudet v. Natchez, 43 So. 2d 900 (Miss. 1950).

Request to advance a cause denied, where its position on the court’s docket was such that to advance it would result in its submission, but a short time, if any, earlier than it would be if it should retain its present place on the docket. Garraway v. State, 184 Miss. 466, 184 So. 628, 185 So. 803, 1938 Miss. LEXIS 312 (Miss. 1938).

2. Causes entitled to advancement.

An appeal from a judgment of circuit court upholding reasonableness of ordinance extending city limits may be advanced on the docket since Supreme Court has inherent power to control disposition of cases on its docket with economy of time and effort for itself, for counsel, and for litigants, especially in cases of extraordinary public moment. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Appeal from orders of board of tax supervisors levying taxes for road building will be advanced. Williams v. Board of Sup'rs, 108 Miss. 746, 67 So. 186, 1914 Miss. LEXIS 268 (Miss. 1914).

Case of public importance to county from which it comes may be advanced on docket whether preference case or not. Weston v. Hancock County, 98 Miss. 800, 54 So. 307, 1910 Miss. LEXIS 126 (Miss. 1910).

3. Advancement not warranted.

Appeal from a judgment of circuit court upholding reasonableness of ordinance extending city limits is not returnable forthwith, but is returnable as any other case, except those specially provided for in this section. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Separate class of cases to be advanced not created by words “in cases where the public interest is concerned” so as to permit advancement of appeals from orders of supervisors. Williams v. Board of Sup'rs, 108 Miss. 746, 67 So. 186, 1914 Miss. LEXIS 268 (Miss. 1914).

Railroad commission not entitled to advancement of hearing of its appeal from injunction of order against railroad companies. Mississippi R. R. Com. v. Yazoo & M. V. R. Co., 100 Miss. 595, 56 So. 668, 1911 Miss. LEXIS 59 (Miss. 1911).

Suit by attorney-general to forfeit charter of corporation for misuse of its franchise is not a preference case. Jackson Loan & Trust Co. v. State, 96 Miss. 347, 54 So. 157, 1909 Miss. LEXIS 67 (Miss. 1909).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review § 227.

2 Am. Jur. Pl & Pr Forms, Rev, Appeal and Error, Form 1.1.

CJS.

4 C.J.S., Appeal and Error § 536.

§ 11-3-5. Appeal not to fail for certain irregularities.

An appeal to the Supreme Court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because an insufficient amount was paid to prepay the costs or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment so as to perfect the appeal and obtain the judgment of the Supreme Court in the case; but the court may dismiss an appeal for a failure of the appellant to do, within a reasonable time, what may be necessary to perfect his appeal.

HISTORY: Codes, 1880, § 1407; 1892, § 4347; 1906, § 4913; Hemingway’s 1917, § 3189; 1930, § 3375; 1942, § 1959; Laws, 1978, ch. 335, § 2, eff from and after July 1, 1978.

Cross References —

Clerk’s sending up appeal bond, see §11-51-73.

Procedures related to tracking system adopted by Supreme Court for all civil and criminal cases, see Miss. R. App. P.

JUDICIAL DECISIONS

1. In general.

2. Failure to execute bond.

3. Defective bond.

4. Failure to file record.

1. In general.

Although appellants filed their petition within the forty-five day period required by §11-51-5 [Repealed], they failed to make a reasonable effort to comply with the requirement of §11-3-5 of payment of the cost of appeal, where, during a ninety-six day delay, they neither took steps to compel the trial court clerk’s compliance with the requirements of §11-51-61 [Repealed] as to the estimated bill of costs, nor paid the estimated costs until fifty-four days after their knowledge of such costs. Garrett v. Nix, 431 So. 2d 137, 1983 Miss. LEXIS 2599 (Miss.), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

In cases where a petition for appeal is filed and granted by the clerk of the trial court in accordance with §§11-51-15 [Repealed],11-51-51 [Repealed], the appeal is taken when the petition is filed; the provision “if costs be then paid as required” in §11-51-15 [Repealed] refers to §11-51-61 [Repealed] rather than §11-51-25 [Repealed] and therefore does not require prepayment of costs prior to the taking of the appeal. Thus, in the case of appellants who had filed a petition for appeal but had not prepaid the costs of the lower court or the filing fee, a motion to dismiss their appeal for such failure of prepayment would be denied where appellants had requested the clerk of the lower court to prepare an estimate of costs but the clerk had failed to do so and where §11-3-5 bars dismissal of an appeal to the Supreme Court on the grounds of insufficient prepayment of costs or failure of an officer to comply with the requirements of law. Dixieland Food Stores, Inc. v. Kelly's Big Star, Inc., 384 So. 2d 1031, 1980 Miss. LEXIS 2011 (Miss. 1980), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

Appellant was granted leave to file an amended appeal bond after the expiration of the 45-day period set by §11-51-5 [Repealed] for filing of such bonds where the original bond had been timely filed and in the correct amount and where the purpose of the amendment was to add an obligee on the bond. Clow Corp. v. J. D. Mullican, Inc., 336 So. 2d 1327, 1976 Miss. LEXIS 1570 (Miss. 1976).

Any prematurity in filing notice of appeal with the court reporter was cured by the entering of a final judgment, the proper disposition of pending motions, and the filing and approval of an appeal bond. First Nat'l Bank v. Cutrer, 190 So. 2d 883, 1966 Miss. LEXIS 1417 (Miss. 1966).

The court should not strike a transcript of the testimony for purely technical reasons where there has been no prejudice to the opposite party. First Nat'l Bank v. Cutrer, 190 So. 2d 883, 1966 Miss. LEXIS 1417 (Miss. 1966).

Where the circuit court, upon appeal, reviewed the case upon a record made in the county court, the contention of appellant, who undertook an appeal to the Supreme Court and deposited $100.00 in cash with the circuit clerk in lieu of a bond, that “the cost of the transcript” meant solely the cost in the circuit court and did not include the cost previously accrued in the county court was rejected, since the quoted term meant the transcript upon which the appellant relied for his appeal, including the stenographer’s notes of the testimony in county court, as well as other costs accrued in the appeal to the circuit court. Walters v. Fine, 232 Miss. 494, 95 So. 2d 229, 1957 Miss. LEXIS 485 (Miss. 1957).

This section [Code 1942, § 1959] applies only to appeals to the Supreme Court of the state. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

This statute is broad in its terms and its application should not be limited to trivial defects and irregularities. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

A drainage district is a separate, distinct legal entity, with power to sue and be sued as such in its corporate name, and is not excepted from the necessity of giving bond for appeal to the Supreme Court, but it is within the power and discretion of the Supreme Court to permit bond to be executed on such terms and conditions as the court may deem proper. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

Rights already lost and wrongs already perpetrated cannot be corrected by mandamus. Lockard v. Hoye, 113 Miss. 238, 74 So. 137, 1916 Miss. LEXIS 38 (Miss. 1916).

A party will be permitted to amend in all cases so as to perfect his appeal. State ex rel. Attorney Gen. v. Board of Sup'rs, 64 Miss. 358, 1 So. 501, 1886 Miss. LEXIS 73 (Miss. 1886).

2. Failure to execute bond.

The perfection of an appeal to the Supreme Court within the time allowed by statute is jurisdictional, and an appeal within the meaning of the statute is taken when, but not until, a bond therefor is filed and approved where such bond is required. Fisher v. Crowe, 289 So. 2d 921, 1974 Miss. LEXIS 1694 (Miss. 1974).

Where a justice of the peace who presided over a special court of eminent domain had before him a petition for an appeal to the circuit court and had accepted $300 cash, the correct amount of the cost bond, and had issued a receipt reciting that the money was received as an appeal bond, the appellants would be permitted to cure the defect in the bond by filing the statutory bond with two sureties, since the reason for giving the bond and having securities thereon is to secure the payment of costs, and the deposit of cash while not meeting the requirements of the statute, unquestionably satisfied that purpose. Jefferson v. Mississippi State Highway Com., 254 So. 2d 181, 1971 Miss. LEXIS 1247 (Miss. 1971).

This section applying only to appeals to the Supreme Court, did not authorize the court, on a habeas corpus trial held after the time had expired for appealing from contempt judgments, to permit a sheriff to file bond at that time and perfect an appeal. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Where trial court fixed the bond at $1000 for an appeal without supersedeas and the appellant filed a petition for appeal and recited therein that he was depositing with the clerk the sum of $1000 as security for costs and the cost of transcript was not prepaid, this cash deposit did follow the statutory requirement, but the appellant was given seven days to file good and sufficient bond with proper sureties. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

Where bank appeals without necessary bond courts may permit it to supply bond. Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810, 1918 Miss. LEXIS 104 (Miss. 1918).

Appeal dismissed where no bond filed with record on appeal from justice to the circuit court. Gaines v. State, 48 So. 182 (Miss. 1909).

Where the appellant failed to execute a bond, he may be permitted to supply the same, so as to perfect the appeal. Hudson v. Gray, 58 Miss. 589, 1881 Miss. LEXIS 3 (Miss. 1881).

3. Defective bond.

In view of Code [1942] § 1163, requiring two or more sufficient resident sureties, one appealing from a decree of the chancery court who filed an appeal bond with only one individual surety would be given 30 days to file a sufficient bond, and if he should fail to do so, his appeal would be dismissed. Hatten v. Pearson, 221 So. 2d 87, 1969 Miss. LEXIS 1487 (Miss. 1969).

Where an appeal bond is filed with only one surety the Supreme Court may grant leave to perfect the defective appeal bond after the expiration of the time for taking an appeal. Lipson v. Lipson, 183 So. 2d 900, 1966 Miss. LEXIS 1450 (Miss. 1966).

Defect in appeal bond given in appeal from municipal ordinance to Circuit Court, in that it was signed only by the protestants as principals, and without the two sureties required by law, was waived by failure to object thereto in the circuit court; and, bond being amenable, defect did not deprive either the circuit court or supreme court of jurisdiction. Neely v. Charleston, 35 So. 2d 316 (Miss. 1948).

Appellees held not entitled to dismissal of appeal for defect in appellants’ bond which was not signed by surety, since all defects in appeal bonds may be cured by amendment, and appellants could substitute proper bond, as requested. Gericevich v. Bonham, 177 Miss. 423, 170 So. 680, 1936 Miss. LEXIS 251 (Miss. 1936).

Motion to dismiss defective appeal bond will be overruled and request to substitute new bond granted. Lovett v. Harrison, 162 Miss. 814, 137 So. 471, 1931 Miss. LEXIS 102 (Miss. 1931).

Leave may be granted to perfect defective appeal bond after expiration of time allowed for taking appeal. Lovett v. Harrison, 162 Miss. 814, 137 So. 471, 1931 Miss. LEXIS 102 (Miss. 1931).

Appellant filing defective appeal bond, in that it had only one surety, was granted ten days to supply proper bond. Purity Ice Cream Co. v. Morton, 157 Miss. 728, 127 So. 276, 1930 Miss. LEXIS 250 (Miss. 1930).

4. Failure to file record.

The authority of the Supreme Court to promulgate rules of procedure in aid of its appellate jurisdiction includes the power to issue writs of certiorari to court reporters requiring the preparation and filing of transcripts of testimony in cases appealed to the court. Brown v. Water Valley, 319 So. 2d 649, 1975 Miss. LEXIS 1481 (Miss. 1975).

Clerk of trial court not excused for failure to file record in Supreme Court seasonably after expiration of time for filing transcript of evidence, by fact that stenographer failed to file such transcript. Yazoo & M. V. R. Co. v. McGraw, 118 Miss. 850, 80 So. 331, 1918 Miss. LEXIS 137 (Miss. 1918).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 706, 707.

CJS.

5 C.J.S., Appeal and Error §§ 879 et seq.

Law Reviews.

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

§ 11-3-7. Cases heard at return term; judgment.

In case the judgment, sentence or decree of the court below be reversed, the Supreme Court shall render such judgment, sentence or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision; and when so remanded shall be proceeded with in the court below according to the direction of the Supreme Court, or according to law in the absence of such directions.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (10); 1857, ch. 63, art. 11; 1871, § 413; 1880, § 1415; 1892, § 4353; 1906, § 4919; Hemingway’s 1917, § 3195; 1930, § 3378; 1942, § 1962; Laws, 1991, ch. 573, § 14, eff from and after July 1, 1991.

Cross References —

Continuance of appeal where counsel is legislator, see §11-1-9.

Limitation for new action after reversal on appeal, see §15-1-69.

Periods of time for filing unaffected by expiration of term of court, see Miss. R. App. P. 26.

JUDICIAL DECISIONS

1. In general.

2. Procedure in Supreme Court.

3. Disposition of appeal in general.

4. —Reversal and entry of proper judgment.

5. —Particular cases.

6. —Reversal and award of new trial.

7. —Reversal and dismissal of action.

8. —Affirmance.

9. —Remand.

10. Scope and effect of judgment of Supreme Court.

11. Recovery of costs.

1. In general.

Contempt for failure to obey judgment should be punished by court rendering such judgment. Ganong v. Jonestown, 98 Miss. 265, 53 So. 594, 1910 Miss. LEXIS 60 (Miss. 1910).

2. Procedure in Supreme Court.

The Supreme Court, in reversing dismissal on other grounds of statutory proceeding in which statute’s constitutionality was questioned, should, where no matter of fact is to be ascertained, no damages to be assessed, and no uncertainty in the matter to be determined, pass on the constitutionality of the statute. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

If demurrer to declaration because stating no cause of action, and defendant’s objections to evidence and request for peremptory instruction are overruled, first inquiry on defendant’s appeal from adverse judgment is whether declaration is sufficient. Newell Contracting Co. v. Flynt, 172 Miss. 730, 161 So. 743 (Miss. 1935).

Where defendant, instead of demurring to declaration because stating no cause of action, pleads thereto and unsuccessfully objects to evidence overrunning declaration and moves for peremptory instruction, first question on defendant’s appeal from adverse judgment is whether declaration is sufficient. Newell Contracting Co. v. Flynt, 172 Miss. 730, 161 So. 743 (Miss. 1935).

On appeal from judgment of chancellor reinstating disbarred attorney, trial is not de novo, but review is on record with right to require additional evidence, if necessary. Ex parte Marshall, 165 Miss. 523, 147 So. 791, 1933 Miss. LEXIS 314 (Miss. 1933).

3. Disposition of appeal in general.

Holding that the omission of the range number from the description appearing in a deed was a mere scrivener’s error, the Supreme Court, under authority of Code 1942, § 1962, entered a decree reforming the instrument by inserting therein the range number intended by the parties. Sunnybrook Children's Home, Inc. v. Dahlem, 265 So. 2d 921, 1972 Miss. LEXIS 1381 (Miss. 1972).

Supreme Court reversing circuit court judgment reversing county court judgment cannot render summary judgment on appeal bond carrying case from county to circuit court. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 498, 121 So. 858, 1929 Miss. LEXIS 95 (Miss. 1929).

4. —Reversal and entry of proper judgment.

Supreme Court, reversing circuit court’s judgment which reversed county court’s judgment, could render such judgment as circuit court should have rendered. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

On reversal, if judgment to be rendered appears certain, case will not be remanded for new trial, but Supreme Court will render final judgment. Witherspoon v. State, 138 Miss. 310, 103 So. 134, 1925 Miss. LEXIS 55 (Miss. 1925).

On reversal, where record presents nothing for jury, judgment will be rendered for appellant. Hines v. Cole, 123 Miss. 254, 85 So. 199, 1920 Miss. LEXIS 27 (Miss. 1920).

On reversing erroneous judgment Supreme Court will render proper judgment if facts are undisputed. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793, 1912 Miss. LEXIS 65 (Miss. 1912).

5. —Particular cases.

Where a judgment or decree rendered by a chancellor is clearly excessive and all the facts are found by the chancellor, and the amount of the judgment is based on facts and opinions of witnesses as to value, the Supreme Court will, on reversing the decree, render judgment for the proper amount without remanding the cause to the court below. Estate of Collins v. Dunn, 233 Miss. 636, 103 So. 2d 425, 1958 Miss. LEXIS 426 (Miss. 1958).

Where defendant in prosecution in county court for unlawful possession of whisky was entitled to a directed verdict of not guilty, and circuit court should have reversed judgment of conviction and discharged defendant, Supreme Court would reverse judgment of circuit court affirming conviction and would discharge defendant. Lewis v. State, 198 Miss. 767, 23 So. 2d 401, 1945 Miss. LEXIS 245 (Miss. 1945).

Where the proof in a grand larceny prosecution showed that the stolen cattle were taken in Tallahatchie County and were taken from the possession of the defendants in Coahoma County, without having passed through Grenada County, in which the indictment alleged the offense to have been committed, the trial court should have sustained defendant’s motion that venue was not proved in Grenada County; and the Supreme Court would render the judgment which the court below should have rendered by discharging the defendants from the present indictment, but holding them under their appearance bond to await the action of the next grand jury of the appropriate county. Whitten v. State, 189 Miss. 809, 199 So. 74, 1940 Miss. LEXIS 167 (Miss. 1940).

Where on suggestion of error after judgment of reversal in the Supreme Court, holding that the court below should have granted the plaintiff’s peremptory instruction to find for it in the amount of the deficiency claimed, with interest, after mortgage foreclosure, together with reasonable attorneys’ fees, plaintiff filed a remittitur of the attorney’s fee in due time, and the opinion of the Supreme Court clearly announced that the court below should have entered a judgment for the amount of the debt with interest, the Supreme Court had authority under this section to enter such judgment as the court below should have entered. Home Owners Loan Corp. v. Wiggins, 188 Miss. 750, 195 So. 339, 1940 Miss. LEXIS 52 (Miss. 1940).

Where description of mortgaged property was void because insufficient and record presented no other facts for jury’s determination which could affect right of purchaser at bankruptcy sale to recover, Supreme Court reversed judgment for mortgagee and entered final judgment for such purchaser. National Foods, Inc. v. Friedrich, 173 Miss. 717, 163 So. 126, 1935 Miss. LEXIS 248 (Miss. 1935).

Where chancellor finds all facts, Supreme Court reversing decree as to damages will render judgment for proper amount. Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874, 1927 Miss. LEXIS 280 (Miss. 1927).

Supreme Court, on reversing judgment for injury on ground that appellant was entitled to directed verdict, will render judgment for appellant, notwithstanding material evidence was excluded, where appellee consented thereto and failed to make application for continuance to procure alleged material witnesses. Hattiesburg Chero Cola Bottling Co. v. Price, 143 Miss. 14, 108 So. 291, 1926 Miss. LEXIS 239 (Miss. 1926).

Where judgment below is illegal Supreme Court may impose sentence in proper form. Thompson v. State, 124 Miss. 463, 86 So. 871, 1920 Miss. LEXIS 530 (Miss. 1920).

Where defendant entitled to peremptory instruction, Supreme Court on reversing judgment for plaintiff will render judgment for defendant. Yazoo & M. R. Co. v. Pope, 104 Miss. 339, 61 So. 450, 1913 Miss. LEXIS 46 (Miss. 1913).

Supreme Court, on appeal from judgment improperly refusing mandamus, will not remand case but will render judgment requiring election commissioners to meet and canvass returns made by managers of election. State ex rel. Hudson v. Pigott, 97 Miss. 599, 54 So. 257 (Miss. 1910).

6. —Reversal and award of new trial.

Supreme Court may award new trial on issue of damages only. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

7. —Reversal and dismissal of action.

On reversal the cause is properly dismissed where there is nothing to be determined by the lower court and no action is maintainable in any court. Scottish Union & Nat'l Ins. Co. v. Warren-Gee Lumber Co., 104 Miss. 636, 61 So. 310, 1913 Miss. LEXIS 28 (Miss. 1913).

8. —Affirmance.

In a proceeding to set aside a will and to have title to deceased’s property vested in plaintiffs, or to obtain reasonable compensation for services rendered to deceased, which was done allegedly pursuant to an agreement by deceased to devise his property to plaintiffs for living with and caring for him, where the evidence was sufficient to support the chancellor’s finding that some additional compensation should be allowed the plaintiffs but the amount allowed was clearly excessive, the Supreme Court modified the decree of the lower court so as to reduce the amount of the allowance, and the decree, as modified, was affirmed. Estate of Collins v. Dunn, 233 Miss. 636, 103 So. 2d 425, 1958 Miss. LEXIS 426 (Miss. 1958).

In absence of cross-appeal and appellee’s declaration failing to demand full amount sheriff could have successfully sued for as fees for serving overseers’ commissions, Supreme Court cannot increase judgment, but will affirm judgment recovered. Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

Where the court of original jurisdiction rendered a judgment on the merits of a case on specific grounds, declining to pass on other grounds duly presented, the Supreme Court may, nevertheless, affirm on the grounds not passed on. Yazoo & M. V. R. Co. v. Adams, 81 Miss. 90, 32 So. 937, 1902 Miss. LEXIS 132 (Miss. 1902).

9. —Remand.

Where language contained in the opinion of the circuit judge left the matter to be determined by the Supreme Court uncertain, the cause was remanded to the circuit court. Biglane Operating Co. v. Brown, 322 So. 2d 470, 1975 Miss. LEXIS 1546 (Miss. 1975).

In action for damages for fraud and deceit in connection with representations by seller as to cultivatable protected acreage in tract of land sold, Supreme Court will remand case to trial court for taking of testimony upon question of amount of cultivatable land within protection of levee and amount of damages sustained by purchaser as consequence of misrepresentation when Supreme Court is unable to render judgment for reason that it cannot calculate amount with sufficient certainty. Reed v. Charping, 207 Miss. 1, 41 So. 2d 11, 1949 Miss. LEXIS 312 (Miss. 1949).

Case will be remanded where lower court makes no finding on one of two points in case, though its decision on the other be erroneous. Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69, 1908 Miss. LEXIS 207 (Miss. 1908).

Where trial court failed to adjudicate amount due in suit to restrain foreclosure of mortgage, proper amount could not be decreed on appeal. Gray v. Bryson, 87 Miss. 304, 39 So. 694, 1905 Miss. LEXIS 134 (Miss. 1905).

10. Scope and effect of judgment of Supreme Court.

Judgment on appeal conclusive as to case presented but not new case made by amendment of bill introducing new matter supported by new evidence. Haines v. Haines, 98 Miss. 830, 54 So. 433, 1910 Miss. LEXIS 131 (Miss. 1910).

11. Recovery of costs.

Where judgment for plaintiff was reversed in part and Supreme Court rendered judgment which trial court should have rendered, defendant was “successful party” entitled to full costs on appeal. Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 1932 Miss. LEXIS 306 (Miss. 1932).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 670, 671 et seq.

CJS.

5 C.J.S., Appeal and Error §§ 1238 et seq., 1249 et seq.

Law Reviews.

1982 Mississippi Supreme Court Review: Civil Procedure: Judicial Decisions. 53 Miss LJ 130, March 1983.

§ 11-3-9. No reversal or annulment for want of jurisdiction.

A judgment or decree in any chancery or circuit court rendered in a civil case, shall not be reversed or annulled on account of want of jurisdiction to render the judgment or decree.

HISTORY: Codes, 1892, § 4354; 1906, § 4920; Hemingway’s 1917, § 3196; 1930, § 3380; 1942, § 1964.

Editor’s Notes —

This section is the counterpart of § 147, Constitution 1890. The cases annotated under that section of the constitution are applicable to this section of the code and are referred to in connection with it.

Cross References —

Constitutional prohibition against reversing judgment for want of jurisdiction, see Miss. Const. Art. 6, § 147.

Jurisdiction of chancery court in general, see §9-5-81.

Jurisdiction of circuit court generally, see §§9-7-81 et seq.

JUDICIAL DECISIONS

1. In general.

2. Error of jurisdiction as between equity and law.

3. —In chancery courts.

4. —In law courts.

5. —Transfer of causes.

6. Other errors.

1. In general.

Supreme Court will not reverse in doubtful case where court had jurisdiction of parties because suit brought in wrong court. Metzger v. Joseph, 111 Miss. 385, 71 So. 645, 1916 Miss. LEXIS 309 (Miss. 1916).

Supreme Court will not reverse simply because suit brought in wrong court. White v. Willis, 111 Miss. 417, 71 So. 737, 1916 Miss. LEXIS 313 (Miss. 1916); W. W. Walley & Son v. L. N. Dantzler Co., 114 Miss. 601, 75 So. 433, 1917 Miss. LEXIS 65 (Miss. 1917).

Question of jurisdiction must be raised in trial court. Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915); Indianola Compress & Storage Co. v. Southern R. Co., 110 Miss. 602, 70 So. 703, 1915 Miss. LEXIS 88 (Miss. 1915).

Section 147, Constitution 1890, is not applicable where court below declined jurisdiction. McCracken v. Lewis, 89 Miss. 229, 42 So. 671 (Miss. 1906); Mitchell v. Bank of Indianola, 98 Miss. 658, 54 So. 87, 1910 Miss. LEXIS 107 (Miss. 1910); Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

This section [Code 1942, § 1964] deprives the Supreme Court alone of power; a chancery court may rightfully dismiss a cause the jurisdiction of which properly belongs to a court of law. Carbolineum Wood-Preserving & Mfg. Co. v. Meyer, 76 Miss. 586, 25 So. 297, 1898 Miss. LEXIS 138 (Miss. 1898).

This section [Code 1942, § 1964] exempts decrees in chancery and judgments of the circuit court from collateral attack on the ground of want of jurisdiction as between equity and common law. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

The prohibition of the section [Code 1942, § 1964] is not confined to final judgments or decrees, but applies also to appeals from interlocutory ones where the question of jurisdiction is directly raised. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, 1893 Miss. LEXIS 47 (Miss. 1893).

2. Error of jurisdiction as between equity and law.

Decree overruling demurrer to bill seeking damages for breach of contract not reversed, though action should have been at law. Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567, 1916 Miss. LEXIS 295 (Miss. 1916); Metzger v. Joseph, 111 Miss. 385, 71 So. 645, 1916 Miss. LEXIS 309 (Miss. 1916).

Under this section [Code 1942, § 1964] a personal judgment against the members of a firm for a firm debt rendered in a suit to set aside alleged fraudulent conveyances by them does not constitute reversible error. Holmes Bros. v. Ferguson-McKinney Dry Goods Co., 86 Miss. 782, 39 So. 70, 1905 Miss. LEXIS 97 (Miss. 1905).

In an action in equity for foreclosure of mortgage and recovery of the debt, the fact that there was a defense to the foreclosure action did not preclude court of equity from giving a recovery for the money claimed, although based upon a purely legal right. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

3. —In chancery courts.

The chancery court, upon dismissal of attachment against nonresident, still had jurisdiction to render a personal decree against the nonresident. Myers v. Giroir, 226 Miss. 335, 84 So. 2d 525, 1956 Miss. LEXIS 404 (Miss. 1956).

Decree of chancery court imposing penalty for violation of anti-trust law will not be reversed. Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, 1910 Miss. LEXIS 92 (Miss. 1910); Dukate v. Adams, 101 Miss. 433, 58 So. 475, 1912 Miss. LEXIS 12 (Miss. 1912).

In action in assumpsit in chancery court, decree overruling demurrer on ground of jurisdiction cannot be reversed by Supreme Court. Town of Woodville v. Jenks, 94 Miss. 210, 48 So. 620, 1908 Miss. LEXIS 48 (Miss. 1908).

Decree in chancery cannot be reversed for error as to whether cause was of equity or common law jurisdiction. Mississippi Fire Ass'n v. Stein, 88 Miss. 499, 41 So. 66, 1906 Miss. LEXIS 168 (Miss. 1906).

A decree in chancery will not be reversed on the ground merely that there was an adequate remedy at law. Hancock v. Dodge, 85 Miss. 228, 37 So. 711, 1904 Miss. LEXIS 121 (Miss. 1904); Decell v. Hazlehurst Oil Mill & Fertilizer Co., 83 Miss. 346, 35 So. 761, 1903 Miss. LEXIS 50 (Miss. 1903); Thompson v. Hill, 152 Miss. 390, 119 So. 320, 1928 Miss. LEXIS 265 (Miss. 1928).

When a court of equity has taken jurisdiction of a proceeding to compel an agent to account for misappropriation of funds, its decree will not be disturbed on appeal on the grounds that the complainant had a complete remedy at law. Decell v. Hazlehurst Oil Mill & Fertilizer Co., 83 Miss. 346, 35 So. 761, 1903 Miss. LEXIS 50 (Miss. 1903).

If a chancery court overrule a demurrer to a cross bill, the Supreme Court cannot, under the section [Code 1942, § 1964], reverse the decree because of any error or mistake as to whether the matters therein propounded be of equity or common law jurisdiction. Irion v. Cole, 78 Miss. 132, 28 So. 803, 1900 Miss. LEXIS 80 (Miss. 1900).

If the chancery court overrule a demurrer to a bill, raising the question of its jurisdiction to subject specific property to the payment of a judgment at law, the record of which judgment has been destroyed, the Supreme Court cannot, under the section [Code 1942, § 1964], review such question, there being no other error found in the record. Day v. Hartman, 74 Miss. 489, 21 So. 302, 1896 Miss. LEXIS 172 (Miss. 1896).

Where a chancery court entertains jurisdiction of a case, the question whether it were or were not equitable in character does not arise, by virtue of the section [Code 1942, § 1964], in the Supreme Court. Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881, 1896 Miss. LEXIS 130 (Miss. 1896).

If the chancery court erroneously assume jurisdiction of an action of trespass the Supreme Court is powerless to interfere. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, 1893 Miss. LEXIS 47 (Miss. 1893).

In action by creditor to set aside a fraudulent sale of goods against debtor and purchaser of goods, wherein creditor obtained attachment of purchaser’s real estate, under this section [Code 1942, § 1964] no error could be assigned that chancery court was without jurisdiction. Barrett v. Carter, 69 Miss. 593, 13 So. 625, 1891 Miss. LEXIS 137 (Miss. 1891).

4. —In law courts.

The circuit court having entertained jurisdiction of an action of ejectment, the Supreme Court cannot because of the section [Code 1942, § 1964] reverse its judgment, even if, by § 160 of the Constitution, the remedy in the particular case should have been sought in the chancery court. Illinois C. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760, 1897 Miss. LEXIS 57 (Miss. 1897).

A judgment of the circuit court in favor of a claimant will not, under the section [Code 1942, § 1964], be reversed because his title was only an equitable one. Goyer Cold-Storage Co. v. Wildberger, 71 Miss. 438, 15 So. 235, 1893 Miss. LEXIS 92 (Miss. 1893).

5. —Transfer of causes.

Order of chancellor sustaining demurrers to bill and ordering transfer to circuit court is appealable. Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, 1917 Miss. LEXIS 203 (Miss. 1917).

Supreme Court cannot transfer case from chancery to circuit court. Town of Woodville v. Jenks, 94 Miss. 210, 48 So. 620, 1908 Miss. LEXIS 48 (Miss. 1908).

6. Other errors.

Where original bill unsustainable for failure to show equity jurisdiction, cross bills were also unsustainable, but error of court assuming jurisdiction is not within Const. 1890 § 147. Scottish Union & Nat'l Ins. Co. v. Warren-Gee Lumber Co., 103 Miss. 816, 60 So. 1010, 1912 Miss. LEXIS 234 (Miss. 1912), modified, 104 Miss. 636, 61 So. 310, 1913 Miss. LEXIS 28 (Miss. 1913); Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 1915 Miss. LEXIS 10 (Miss. 1915); Indianola Compress & Storage Co. v. Southern R. Co., 110 Miss. 602, 70 So. 703, 1915 Miss. LEXIS 88 (Miss. 1915).

Dismissal of cause in chancery when transfer to circuit court proper, not within this section. Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

Error of chancellor in overruling demurrer to bill bad for misjoinder is not mistake as to equity or law jurisdiction. Newton Oil & Mfg. Co. v. Sessums, 102 Miss. 181, 59 So. 9 (Miss. 1912).

This section does not apply to cases in which either the circuit or chancery court entertains a cause, being neither of equity nor common-law jurisdiction, of which it has no jurisdiction. Board of Levee Comm'rs v. Brooks, 76 Miss. 635, 25 So. 358, 1898 Miss. LEXIS 143 (Miss. 1898).

On the reversal of a final decree in a cause of which the chancery court had no jurisdiction, instead of remanding the cause to the court having jurisdiction, the Supreme Court will dismiss it if it appears that the complainant has no cause of action. Griffin v. Byrd, 74 Miss. 32, 19 So. 717, 1896 Miss. LEXIS 95 (Miss. 1896).

The section is not applicable to a decree appointing a receiver, void because made on the ex parte application of a debtor, such unauthorized proceeding not being a “cause” within its meaning. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

The Supreme Court is not precluded by the section from reversing a decree enjoining a number of actions for the destruction of property by fire on the idea of preventing a multiplicity of suits, the question in such case being merely as to the power of any court to join the parties in one suit. Tribbette v. Illinois C. R. Co., 70 Miss. 182, 12 So. 32, 1892 Miss. LEXIS 87 (Miss. 1892).

RESEARCH REFERENCES

ALR.

Lack of jurisdiction, or jurisdictional error, as rendering federal district court judgment “void” for purposes of relief under Rule 60(b)(4) of Federal Rules of Civil Procedure.59 A.L.R. Fed. 831.

§ 11-3-11. Voluntary dismissal of appeal.

If an appellant shall voluntarily dismiss his appeal after the transcript of the record has been filed in the Supreme Court, he shall be liable to judgment by said court as in case of an affirmance of the judgment or decree.

HISTORY: Codes, 1880, § 1429; 1892, § 4366; 1906, § 4932; Hemingway’s 1917, § 3208; 1930, § 3381; 1942, § 1965.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 711, 714, 716.

2 Am. Jur. Pl & Pr Forms, Rev, Appeal and Error, Forms 1096, 1097.

CJS.

5 C.J.S., Appeal and Error § 878.

§ 11-3-13. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (10); 1857, ch. 63, art. 16; 1871, § 418; 1880, § 1416; 1892, § 4355; 1906, § 4921; Hemingway’s 1917, § 3197; 1930, § 3382; 1942, § 1966]

Editor’s Notes —

Former §11-3-13 provided for the dismissal of an appeal where the record was not filed on or before the return day, and for reinstatement of an appeal after dismissal.

§ 11-3-15. Effect of dismissal.

After the dismissal of an appeal or supersedeas by the Supreme Court, another appeal or supersedeas shall not be granted in the same cause, so as to bring it again before the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (33); 1857, ch. 63, art. 17; 1871, § 419; 1880, § 1417; 1892, § 4356; 1906, § 4922; Hemingway’s 1917, § 3198; 1930, § 3383; 1942, § 1967.

Cross References —

Effect of affirmance or dismissal of appeal on relief under Mississippi Uniform Post-Conviction Collateral Relief Act, see §99-39-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Where an appeal has been perfected and dismissed for want of prosecution, a subsequent appeal or writ of error is barred by this section. First American Nat'l Bank v. Alcorn, Inc., 361 So. 2d 481, 1978 Miss. LEXIS 2368 (Miss. 1978).

Prior appeal by the attorney general, as a mere interloper, from order of the tax commission, does not bar a subsequent authorized appeal by him. Board of Sup'rs v. Guaranty Loan, Trust & Banking Co., 118 Miss. 600, 79 So. 802, 1918 Miss. LEXIS 102 (Miss. 1918).

A dismissal of an appeal because premature will not bar another from a final judgment in the same cause. Stokes v. Shannon, 55 Miss. 583, 1878 Miss. LEXIS 15 (Miss. 1878).

The statute does not apply where the dismissal is without the fault of the party, or for an irregularity over which he had no control. Bull v. Harrell, 8 Miss. 9, 1843 Miss. LEXIS 51 (Miss. 1843); Sherman v. Lovejoy, 30 Miss. 105, 1855 Miss. LEXIS 67 (Miss. 1855).

2. Applicability.

In a case in which (1) 29 days after the judgment of divorce was entered, the husband filed a timely notice of appeal and the appeal was ultimately dismissed for want of prosecution after he failed to file a timely brief; (2) the husband filed a motion in the chancery court to aside, alter, or amend the judgment of divorce; (3) the chancery court denied the motion; and (4) the husband appealed that decision, the wife unsuccessfully argued that appellate jurisdiction was precluded under Miss. Code Ann. §11-3-15. The present appeal was not a successive appeal from the judgment of divorce; it arose from the husband’s motion to set aside the judgment of divorce as void. Cobb v. Cobb, 29 So.3d 145, 2010 Miss. App. LEXIS 118 (Miss. Ct. App. 2010).

RESEARCH REFERENCES

ALR.

Effect of nonsuit, dismissal, or discontinuance of action on previous orders. 11 A.L.R.2d 1407.

Am. Jur.

5 Am. Jur. 2d, Appellate Review § 710.

CJS.

5 C.J.S., Appeal and Error §§ 903-905.

§§ 11-3-17 and 11-3-19. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-3-17. [Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (25); 1857, ch. 63, art. 23; 1871, § 425; 1880, § 1419; 1892, § 4358; 1906, § 4924; Hemingway’s 1917, § 3200; 1930, § 3384; 1942, § 1968]

§11-3-19. [Codes, 1880, § 1418; 1892, § 4357; 1906, § 4923; Hemingway’s 1917, § 3199; 1930, § 3385; 1942, § 1969]

Editor’s Notes —

Former §11-3-17 provided for the revival or dismissal of an action upon the death of a party.

Former §11-3-19 provided that a bill of exceptions could contain matters of record without having a record distinct from the bill.

§ 11-3-21. Motion to discharge supersedeas in certain cases.

A motion to discharge a supersedeas in an appeal to the Supreme Court may be made before and heard by the court on ten days’ notice to the opposite party, at any time before the day to which the appeal is returnable, and the court shall make such orders and render such judgment as may be proper in the case.

HISTORY: Codes, 1880, § 1421; 1892, § 4359; 1906, § 4925; Hemingway’s 1917, § 3201; 1930, § 3386; 1942, § 1970.

JUDICIAL DECISIONS

1. In general.

Supersedeas of a decree awarding temporary custody of a child to parent seeking a change in custody, upon evidence heard by the chancery court, is not proper where such evidence is not before the Supreme Court. Swager v. Swager, 246 Miss. 248, 148 So. 2d 516, 1963 Miss. LEXIS 438 (Miss. 1963).

This section [Code 1942, § 1970] has no application to appeal under Code 1942, § 1163, as right to appeal with supersedeas is unquestionably granted by § 1163, and operation of this section must be confined to cases in which, from nature of case, law does not permit supersedeas. Coulter v. Banks, 38 So. 2d 696 (Miss. 1949).

Supersedeas bond not discharged on motion in Supreme Court on ground sureties were misled into signing it and one of them notified the clerk before it was filed not to approve it. Douglas v. Parsons-May-Oberschmidt Co., 101 Miss. 620, 57 So. 624, 1911 Miss. LEXIS 123 (Miss. 1911).

An appeal with supersedeas, granted from an unappealable interlocutory order, will, upon motion, be discharged by the Supreme Court. Hanon v. Weil, 69 Miss. 476, 13 So. 878, 1891 Miss. LEXIS 175 (Miss. 1891).

It is only where from the nature of the case supersedeas on appeal is not allowable that a motion can be made in the Supreme Court under this section [Code 1942, § 1970] to discharge a supersedeas. Alabama & V. R. Co. v. Bolding, 69 Miss. 264, 13 So. 846, 1891 Miss. LEXIS 171 (Miss. 1891).

Supersedeas without bond held not discharged as to writ of possession, although bond insufficient as to recovery for mesne profits. Lum v. Reed, 53 Miss. 71, 1876 Miss. LEXIS 37 (Miss. 1876).

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error §§ 659, 666.

§§ 11-3-23 and 11-3-25. Repealed.

Repealed by Laws, 2002, 3rd Ex Sess, ch. 4, § 14, eff from and after passage (approved January 1, 2003).

11-3-23. [Codes, Hutchinson’s 1848, ch. 63, class 4, art. 2 (152); 1857, ch. 63, art. 12; 1871, § 414; 1880, § 1422; 1892, § 4360; 1906, § 4926; Hemingway’s 1917, § 3202; 1930, § 3387; 1942, § 1971; Laws, 1977, ch. 446; Laws, 1978, ch. 335, § 3; Laws, 1980, ch. 533, § 1, eff from and after July 1, 1980.]

11-3-25. [Codes, 1880, § 1423; 1892, § 4361; 1906, § 4927; Hemingway’s 1917, § 3203; 1930, § 3388; 1942, § 1972.]

Editor’s Notes —

Former §11-3-23 set a procedure for computation in judgments for damages.

Former §11-3-25 established a procedure for cases where amount in controversy is not specified.

§ 11-3-27. Judgment on bond for supersedeas.

In case a bond has been given for a supersedeas, the judgment of the Supreme Court, on affirming the judgment or decree of the court below, or on a dismissal of the appeal by the appellant or the court, shall be for the money adjudged or decreed against appellant, and damages and costs, or for the specific property and damages and costs, or for the damages and costs, as the case may be, against all the obligors in the bond who may be living at that time, and execution may be issued thereon accordingly. If any of the obligors be dead, his representatives may be summoned to show cause why judgment should not be rendered against them on the bond; and if good cause be not shown to the contrary, judgment shall be entered against them in like manner as against the living obligors, and certified to the court below, and execution may be issued thereon.

HISTORY: Codes, 1880, § 1425; 1892, § 4362; 1906, § 4928; Hemingway’s 1917, § 3204; 1930, § 3389; 1942, § 1973.

Cross References —

Proceedings on death of surety on bonds, see §§11-1-29 to11-1-35.

JUDICIAL DECISIONS

1. In general.

2. Liability of sureties.

3. Estoppel.

1. In general.

The requirement as to the amount of a supersedeas bond is not met by giving bonds with different sureties for varying amounts aggregating the required amount. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

Where an appeal was dismissed because of the appellant’s failure to file an appeal bond within the required time, under this section [Code 1942, § 1973] statutory damages will be allowed. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

Supreme Court’s judgment must be enforced by court from which appeal came after its certification thereto by Supreme Court. Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626, 1932 Miss. LEXIS 3 (Miss. 1932).

Supreme Court cannot render summary judgment on appeal bond, where judgment of lower court did not award money recovery. Lamas v. Renaldo, 152 Miss. 353, 118 So. 417, 1928 Miss. LEXIS 214 (Miss. 1928).

2. Liability of sureties.

The dismissal of an appeal for failure to file the appeal bond within the required time is a breach of the conditions of the appeal bond so as to render the sureties liable. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

In a suit to remove tenant for nonpayment of rent, where the Supreme Court affirmed judgment for the landlord, money judgment would be assessed against tenant’s supersedeas bond for rent in default for the period in which an appeal was pending. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

Circuit court, when affirming money judgment of county court, where appeal bond supersedes judgment, should render judgment on bond for amount of judgment affirmed, with interest thereon from date of rendition at same rate as borne by judgment affirmed, court costs, and six per cent damages on amount of judgment. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Appellees held not entitled to judgment against sureties on appeal bond in partnership settlement case, where judgment was reversed as to two items. Arrington v. Stabley, 126 So. 842 (Miss. 1930).

3. Estoppel.

Where a party appealed and obtained a bond styled “appeal bond with supersedeas” in an amount sufficient to effect supersedeas, and had the benefit of supersedeas, in that execution of judgment was stayed, but there was no indication that the bonds were liable for the amount of judgment as required of supersedeas bonds by Code 1942, § 1973, such party was estopped in a suit on the judgment which had been affirmed, from changing his position and contending that the bond did not toll the statute of limitations since it failed to include the conditions imposed by Code 1942, § 1163 requiring that the bond be conditioned that the appellant will satisfy the judgment or decree. Breland v. International Paper Co., 233 So. 2d 827, 1970 Miss. LEXIS 1686 (Miss. 1970).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 359, 360.

CJS.

4 C.J.S., Appeal and Error §§ 644, 646, 663.

5 C.J.S., Appeal and Error §§ 1234 et seq.

§ 11-3-29. Repealed.

Repealed, by Laws, 1978, ch. 335, § 41, eff from and after July 1, 1978.

[Codes, 1880, § 1426; 1892, § 4363; 1906, § 4929; Hemingway’s 1917, § 3205; 1930, § 3390; 1942, § 1974]

Editor’s Notes —

Former §11-3-29 covered judgments for costs in certain cases.

§ 11-3-31. Judgment certified to be enforced.

On receiving the certificate of the clerk of the Supreme Court of the judgment of that court in any matter, it shall be the duty of the clerk of the court below to issue the proper process to enforce the judgment according to its terms.

HISTORY: Codes, 1880, § 1427; 1892, § 4364; 1906, § 4930; Hemingway’s 1917, § 3206; 1930, § 3391; 1942, § 1975.

Cross References —

Executions on judgments, see §§13-3-111 et seq.

RESEARCH REFERENCES

ALR.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 670, 671.

CJS.

5 C.J.S., Appeal and Error §§ 1136-1139.

§ 11-3-33. Bond may be excepted to.

The sufficiency of a bond in any respect as a security may be excepted to before the Supreme Court, or a judge thereof in vacation, on five (5) days’ notice to the opposite party and, if the exception be sustained and the security be not immediately perfected, the appeal shall cease to operate as a supersedeas, and the supersedeas shall be discharged by order of the court or judge, and execution may be issued on the judgment or decree appealed from; and the Supreme Court may give judgment on the bond as in other cases, as if the supersedeas had not been discharged. If necessary, a new execution may be issued on the judgment, although one may have been issued on the discharge of the supersedeas.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class 4, art. 7 (2); 1857, ch. 63, art. 10; 1871, § 412; 1880, § 1428; 1892, § 4365; 1906, § 4931; Hemingway’s 1917, § 3207; 1930, § 3392; 1942, § 1976; Laws, 1978, ch. 335, § 4, eff from and after July 1, 1978.

Cross References —

Authority of court or judge to require new security, see §11-1-23.

Payment of bond in judicial review of final decision of employee appeal board, see §25-9-132.

JUDICIAL DECISIONS

1. In general.

Since appellant’s filing of two appeal bonds totaling 125 per cent of the judgment appealed from, under which different sureties bound themselves for a stated portion of the required supersedeas bond, was not a sufficient compliance with Code 1942, §§ 1163 and 1973, appellee’s exceptions to the sufficiency of the bonds would be sustained, unless within 30 days appellant filed a good and sufficient supersedeas bond. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 270, 353, 359, 360.

CJS.

4 C.J.S., Appeal and Error §§ 445 et seq., 519, 520, 531-535 et seq.

5 C.J.S., Appeal and Error §§ 1234 et seq.

Law Reviews.

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

§ 11-3-35. Judgment not to be reversed for certain errors.

No judgment in any case originating in a justice court, or in a municipal court, and appealed to the circuit court, shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was not properly certified or was not certified at all, or was missing in whole or in part, unless the record further shows that objection on that account was made in the circuit court, in the absence of which objection in the circuit court there shall be a conclusive presumption that the defects in this clause mentioned did not exist in the circuit court proceedings: Provided however, that the foregoing clause shall not apply to cases wherein a record in the supreme court of the transcript from the justice or municipal court is necessary to a fair understanding of the proceedings in the circuit court.

HISTORY: Codes, 1880, § 1433; 1892, § 4370; 1906, § 4936; Hemingway’s 1917, § 3212; 1930, § 3403; 1942, § 1987.

Cross References —

No reversal for harmless errors, see M.R.C.P. 61.

JUDICIAL DECISIONS

1. In general.

2. Questions first raised on appeal.

3. Jurisdictional matters.

4. Matters of pleading.

5. Parties.

6. Evidence.

7. —Admission and exclusion.

8. —Weight and sufficiency.

9. Instructions.

10. Matters pertaining to record.

1. In general.

Decree of lower court which is erroneous in awarding husbands of wives who predeceased wives’ parents interest in lands of parents will be modified on appeal of proceeding to determine rights of parties in realty, though not made an issue on appeal, to avoid possibility of making decree final with error therein. Dunaway v. McEachern, 37 So. 2d 767 (Miss. 1948).

Generally errors committed during trial are not reviewable unless assigned in motion for a new trial. Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

Supreme Court cannot consider merits of controversy unless passed on by lower court. Ascher & Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299, 1911 Miss. LEXIS 96 (Miss. 1911).

Improper remarks by counsel not reviewed without exceptions taken at the time. Mississippi C. R. Co. v. Turnage, 95 Miss. 854, 49 So. 840, 1909 Miss. LEXIS 294 (Miss. 1909) but see Hall v. State, 539 So. 2d 1338, 1989 Miss. LEXIS 104 (Miss. 1989).

2. Questions first raised on appeal.

Where a justice of the peace had not certified record made in his court as required by statute, and there was no objection made at the trial, the objection could not be made for the first time in the Supreme Court. Laird v. Forbes, 214 Miss. 250, 58 So. 2d 660, 1952 Miss. LEXIS 464 (Miss. 1952).

Errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal. Brooks v. State, 209 Miss. 150, 46 So. 2d 94, 1950 Miss. LEXIS 373 (Miss. 1950).

An objection to a variance between indictment and proof which is curable by amendment must be made before the verdict and, if not then made, is waived. Horn v. State, 165 Miss. 169, 147 So. 310, 1933 Miss. LEXIS 293 (Miss. 1933).

Defendant not objecting in circuit court to record of proceedings in justice court could not object for first time in Supreme Court. Lott v. Watkins, 162 Miss. 507, 137 So. 895, 1931 Miss. LEXIS 113 (Miss. 1931).

Contention that tax assessors and collectors are necessary parties to suit for back taxes cannot be raised first on appeal. Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 1908 Miss. LEXIS 165 (Miss. 1908).

Defendants in suit to quiet title claiming at trial under an alleged sale for taxes for the year 1874, could not assert title under such sale as a sale under the abatement act and by limitations for the first time on appeal. Kennedy v. Sanders, 90 Miss. 524, 43 So. 913, 1907 Miss. LEXIS 92 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

Objection that tax title did not contain endorsement expressly required by law may be made for the first time on appeal. McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 1907 Miss. LEXIS 4 (Miss. 1907), overruled, Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466, 1911 Miss. LEXIS 48 (Miss. 1911).

Where bill alleges assignment of trust deed and the answer admits it, it cannot be questioned on appeal. Watkins v. McDonald, 41 So. 376 (Miss. 1906).

In action to cancel conveyances under a trust deed, contention that holder of trust deed exhausted her power by appointment of substituted trustees cannot be raised first on appeal. Watkins v. McDonald, 41 So. 376 (Miss. 1906).

Void judgment reversed though invalidity urged for first time on appeal. Alexander v. Porter, 88 Miss. 585, 41 So. 6, 1906 Miss. LEXIS 161 (Miss. 1906).

3. Jurisdictional matters.

Jurisdiction of trial court may be questioned for first time on appeal. Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911); Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

Supreme Court has no jurisdiction where there is no bond in the record of appeal from justice to the circuit court. Humphreys v. McFarland, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Johnson v. Marshall, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

Appeal from interlocutory decree without order of court allowing it, dismissed and case remanded. Greve v. McGee, 92 Miss. 190, 45 So. 706, 1907 Miss. LEXIS 23 (Miss. 1907).

Mere failure of clerk to enter on the minutes order of court calling special term does not oust jurisdiction. Ex parte Neil, 90 Miss. 518, 43 So. 615, 1907 Miss. LEXIS 82 (Miss. 1907).

4. Matters of pleading.

Judgment on note not reversed on ground original note not produced and filed, where the record does not affirmatively show such to be the fact. Biles v. Wolf, 49 So. 267 (Miss. 1909).

Where petition dismissed on demurrer, question not raised in trial court cannot be reviewed. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, 1909 Miss. LEXIS 202 (Miss. 1909).

Supreme Court will not sustain demurrer to declaration not presented to lower court. Keystone Lumber Yard v. Yazoo & M. V. R. Co., 94 Miss. 192, 47 So. 803, 1908 Miss. LEXIS 28 (Miss. 1908).

Objection that complainant had no right to bring suit, not made in court below, held waived on appeal. Beason v. Coleman, 92 Miss. 622, 46 So. 49, 1908 Miss. LEXIS 195 (Miss. 1908).

5. Parties.

Contention that tax assessors and collectors are necessary parties to suit for back taxes cannot be raised first on appeal. Delta & Pine Land Co. v. Adams, 93 Miss. 340, 48 So. 190, 1908 Miss. LEXIS 165 (Miss. 1908).

Supreme Court will of its own motion decline to act where a proper decree cannot be made without having certain persons made defendants. Gates v. Union Naval Stores Co., 92 Miss. 227, 45 So. 979, 1908 Miss. LEXIS 190 (Miss. 1908).

6. Evidence.

Case should be reversed and remanded, where plaintiff might on new hearing be able to offer evidence entitling it to recover, instead of only reversed. Planters' Mercantile Co. v. Armour Packing Co., 109 Miss. 470, 69 So. 293, 1915 Miss. LEXIS 180 (Miss. 1915); Planters' Mercantile Co. v. Christian Peper Tobacco Co., 69 So. 295 (Miss. 1915); Schloss & Rothschild v. Haupt, 69 So. 295 (Miss. 1915).

A case cannot be reversed by the Supreme Court on the ground that the evidence did not show corporate existence where no objection was made on that ground in the court below. James v. State, 77 Miss. 370, 26 So. 929, 1899 Miss. LEXIS 59 (Miss. 1899).

7. —Admission and exclusion.

In action for damages resulting from automobile collision, where objection is sustained and court admonishes jury to disregard question, no prejudice sufficient to require mistrial is manifested by mere asking of defendant if he did not operate slot machines, defendant having disclosed without objection that he was operating bar in violation of law. Kouvarakis v. Hawver, 208 Miss. 697, 45 So. 2d 278, 1950 Miss. LEXIS 288 (Miss. 1950).

Judgment of circuit court will not be reversed on appeal to Supreme Court for error in admission of incompetent evidence which was either of no effect, or, if effective, was prejudicial to appellee and not to appellant. Magnolia Miss Dress Co. v. Zorn, 204 Miss. 1, 36 So. 2d 795, 1948 Miss. LEXIS 337 (Miss. 1948).

Defendant not objecting in the lower court cannot complain of admission of mortuary tables because the pleadings did not show value of decedent’s life expectancy. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

Party could not question the competency of parol testimony on motion for new trial. Anderson v. Maxwell, 94 Miss. 138, 48 So. 227, 1908 Miss. LEXIS 37 (Miss. 1908).

Rulings on admission and exclusion of evidence not considered unless motion for a new trial directs attention of the court to particular ruling. Carpenter v. Savage, 93 Miss. 233, 46 So. 537, 1908 Miss. LEXIS 92 (Miss. 1908).

Where testimony appears incompetent only when considered with other testimony not objected to, it is not ground for reversal. Mississippi C. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505, 1906 Miss. LEXIS 195 (Miss. 1906).

8. —Weight and sufficiency.

Verdict on conflicting evidence not disturbed. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 1911 Miss. LEXIS 164 (Miss. 1911); Thompson v. Poe, 104 Miss. 586, 61 So. 656, 1913 Miss. LEXIS 69 (Miss. 1913); Soverign Camp, W. W. v. McDonald, 109 Miss. 167, 68 So. 74, 1915 Miss. LEXIS 130 (Miss. 1915); Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

Chancellor’s findings not disturbed on appeal unless against preponderance of evidence. Gross v. Jones, 89 Miss. 44, 42 So. 802, 1906 Miss. LEXIS 86 (Miss. 1906); Carter v. Catchings, 48 So. 515 (Miss. 1909); Moyse v. Howie, 98 Miss. 30, 53 So. 402, 1910 Miss. LEXIS 42 (Miss. 1910); Heard v. Cottrell, 100 Miss. 42, 56 So. 277, 1911 Miss. LEXIS 12 (Miss. 1911); Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166, 1913 Miss. LEXIS 14 (Miss. 1913); Lott v. Hull, 104 Miss. 308, 61 So. 421, 1913 Miss. LEXIS 37 (Miss. 1913); Lee v. Wilkinson, 105 Miss. 358, 62 So. 275, 1913 Miss. LEXIS 206 (Miss. 1913); Bland v. Bland, 105 Miss. 478, 62 So. 641, 1913 Miss. LEXIS 233 (Miss. 1913); Northern Assurance Co. v. J. J. Newman Lumber Co., 105 Miss. 688, 63 So. 209, 1913 Miss. LEXIS 248 (Miss. 1913); Aldridge v. Bogue Phalia Drainage Dist., 106 Miss. 626, 64 So. 377, 1913 Miss. LEXIS 171 (Miss. 1913); Evans v. Sharbrough, 106 Miss. 687, 64 So. 466, 1914 Miss. LEXIS 5 (Miss. 1914); Freeman v. Freeman, 107 Miss. 750, 66 So. 202, 1914 Miss. LEXIS 138 (Miss. 1914); Golden v. Bank of Lake, 108 Miss. 420, 66 So. 782 (Miss. 1914); Humber v. Humber, 109 Miss. 216, 68 So. 161, 1915 Miss. LEXIS 137 (Miss. 1915); Rice v. W. L. Robinson Lumber Co., 110 Miss. 607, 70 So. 817, 1915 Miss. LEXIS 92 (Miss. 1915); Puryear v. Austin, 205 Miss. 590, 39 So. 2d 257, 1949 Miss. LEXIS 449 (Miss. 1949); Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949); James v. Federal Royalty Co., 44 So. 2d 542 (Miss. 1950).

9. Instructions.

Peremptory instruction held erroneous in view of the evidence. Illinois C. R. Co. v. Threefoot Bros. & Co., 121 Miss. 468, 83 So. 635, 1920 Miss. LEXIS 92 (Miss. 1920).

Supreme Court will not set aside verdict merely because it believes it was contrary to weight of evidence. St. Louis & S. F. R. Co. v. Bowles, 107 Miss. 97, 64 So. 968, 1914 Miss. LEXIS 55 (Miss. 1914).

Error in directing a verdict held reviewable though not assigned in motion for new trial. Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

Defendant cannot complain of failure to give instruction not requested by him, as to amount of damages, where amount assessed was well within sum jury could properly assess. Independent Order of S. & D. of J. v. Wilkes, 98 Miss. 179, 53 So. 493, 1910 Miss. LEXIS 50 (Miss. 1910).

Error in instruction disregarded, where not included in motion for new trial. Southern R. Co. v. Jackson, 49 So. 738 (Miss. 1909).

Case will not be reversed because peremptory instruction for plaintiff was given in the absence of defendant’s counsel and without giving defendant an opportunity to present additional proof, where motion for new trial made no showing as to materialty of the additional evidence. Evans v. Lilly & Co., 95 Miss. 58, 48 So. 612, 1909 Miss. LEXIS 383 (Miss. 1909).

Where case is disposed of by peremptory instruction, assignment of error directed to such disposition brings the entire case into review and permits argument on matters first raised in the Supreme Court. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

Objections to instructions not made in the court below will not be considered by the Supreme Court, and the acts of 1896, p. 91 on the subject of stenographers’ notes does not change this rule. Alexander v. Flood, 77 Miss. 925, 28 So. 787, 1900 Miss. LEXIS 60 (Miss. 1900).

10. Matters pertaining to record.

The many cases cited under Code 1972, §11-51-87 holding that the supreme court acquired no jurisdiction in cases where a copy of the judgment of the justice of the peace was not included in the record on appeal are overruled because of two statutes-Code 1972, §§11-3-35 and99-35-143-which were apparently overlooked by the early cases. Avera v. State, 300 So. 2d 787, 1974 Miss. LEXIS 1636 (Miss. 1974).

Although under the statutes it is still mandatory that the justice of the peace, or the mayor or police justice, in appeals from their courts, shall transmit to the proper clerk a certified copy of the record of the proceedings with the original papers, process and appeal bond, yet, if no objection is made to the transcript before or during the trial of the case on its merits, it will be conclusively presumed that the transcript was before the court and complied in every respect with the law. Whittington v. State, 218 Miss. 631, 67 So. 2d 515, 1953 Miss. LEXIS 581 (Miss. 1953).

While it is true that on appeals to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer on the circuit court jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

Where record did not contain judgment of justice court, appeal bond, or transcript of proceedings in justice court, but such transcript was unnecessary for understanding of proceedings in circuit court, statute prevents reversal. McCluney v. State, 162 Miss. 333, 138 So. 356, 1931 Miss. LEXIS 118 (Miss. 1931).

Without judgment of circuit court showing establishment, it is presumed certification of record was not established in circuit court on appeal from justice. Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

Assignments without basis in record will not be considered. Higgins v. State, 120 Miss. 823, 83 So. 245, 1919 Miss. LEXIS 134 (Miss. 1919).

Court will not reverse and remand for new trial where original papers have been lost through no fault of appellee. Germaine v. Harwell, 104 Miss. 679, 61 So. 659, 1913 Miss. LEXIS 72 (Miss. 1913).

Objection that stenographer’s notes were authenticated and filed out of time should be made by motion to strike before the case is submitted, and cannot be made for the first time on suggestion of error. Whittaker v. Godwin, 97 Miss. 663, 53 So. 413 (Miss. 1910).

Where clerk certifies there is no motion for continuance on file, appellant must bring the motion into the record or account for its absence before it can be reviewed. Greenburg v. Sauls Bros. & Co., 91 Miss. 410, 45 So. 569 (Miss. 1907).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 572- 577, 584- 590.

CJS.

5 C.J.S., Appeal and Error §§ 678, 1112-1120, 1121 et seq.

§ 11-3-37. Appellant not entitled to reversal for error as to another.

In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case. And when a judgment or decree shall be affirmed as to some of the appellants and be reversed as to others, the case shall thereafter be proceeded with, so far as necessary, as if the separate suits had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly. Costs may be adjudged in such cases as the supreme court shall deem proper.

HISTORY: Codes 1880, § 1440; 1892, § 4378; 1906, § 4944; Hemingway’s 1917, § 3220; 1930, § 3404; 1942, § 1988.

JUDICIAL DECISIONS

1. In general.

2. Specific applications.

3. Statute held inapplicable.

1. In general.

This section and the next succeeding one [Code 1942, §§ 1988, 1989] (§ 4945, Code 1906) do not by the rule “expresso unius est exclusio alterius” prohibit the Supreme Court from limiting the issues on granting new trial where such right exists by some other statute or the common law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

2. Specific applications.

In a wrongful death action, the misjoinder of nursing home licensees and administrators did not in any way prejudice a parent company of the nursing home; licensees and administrators owed a duty to their employer, and as such the parties could have been called by the decedent’s estate to provide relevant testimony, and the record demonstrated that all of the licensees and administrators did not testify, and those who did said little that advanced the case against the parent company. Mariner Health Care, Inc. v. Estate of Edwards, 964 So. 2d 1138, 2007 Miss. LEXIS 520 (Miss. 2007).

Two defendants did not have standing to appeal a determination that two other defendants were not liable for an award to the plaintiff of attorneys’ fees and costs since, no matter what the outcome of the appeal, the first two defendants would not be relieved of their obligation to pay attorneys’ fees and expenses. Mauck v. Columbus Hotel Co., 741 So. 2d 259, 1999 Miss. LEXIS 266 (Miss. 1999).

The defendant lessors did not have standing to the dismissal of intervenors on appeal in a proceeding to cancel a lease since, no matter what the outcome of the appeal, the lessors would not be relieved of their obligation to pay attorneys’ fees and expenses, and consequently their rights remained unaffected by the dismissal of the intervenors. Mauck v. Columbus Hotel Co., 1999 Miss. LEXIS 203 (Miss. June 17, 1999), op. withdrawn, sub. op., 741 So. 2d 259, 1999 Miss. LEXIS 266 (Miss. 1999).

The language of the statute applies to all cases, both civil and criminal and, therefore, two defendants did not have standing to raise the alleged error of the chancery court in dismissing two other defendants from the case, notwithstanding their contention that their potential liability was increased dramatically by the dismissal of those defendants. Mauck v. Columbus Hotel Co., 1998 Miss. LEXIS 577 (Miss. Nov. 25, 1998), op. withdrawn, sub. op., in part, 1999 Miss. LEXIS 203 (Miss. June 17, 1999).

Under this statute, an employer could not complain of the verdict against him alone in a case in which both he and his employee were sued jointly. Capital Transport Co. v. McDuff, 319 So. 2d 658, 1975 Miss. LEXIS 1484 (Miss. 1975).

Where two persons are jointly indicted and tried for a crime, and the state’s case against both defendants consists of the testimony of one witness, whose testimony is identical as to both defendants, a verdict acquitting one defendant and convicting the other does not entitle the defendant convicted to a discharge since verdicts in such cases need not be consistent. Newell v. State, 308 So. 2d 68, 1975 Miss. LEXIS 1829 (Miss. 1975).

The fact that the driver of a truck, on whose negligence his employer company’s liability depended, was exonerated from liability for injuries sustained by an automobile passenger in the collision between the automobile and the truck, did not require a reversal of the judgment for the passenger against the truck driver’s employer. D. W. Boutwell Butane Co. v. Smith, 244 So. 2d 11, 1971 Miss. LEXIS 1314 (Miss. 1971).

One defendant is in no position to complain by reason of the fact that the jury found for, and thereby released, his co-defendant, an alleged joint tortfeasor. Canton Broiler Farms, Inc. v. Warren, 214 So. 2d 671, 1968 Miss. LEXIS 1322 (Miss. 1968).

In an action for injuries sustained by the plaintiff when taxicab in which she was riding collided with another automobile, the failure to return a verdict against the driver of the cab does not affect the appeal from the judgment against the owner of the cab and business of furnishing taxi service to the public. Rawlings v. Inglebritzen, 211 Miss. 760, 52 So. 2d 630, 1951 Miss. LEXIS 403 (Miss. 1951).

Judgment of circuit court will not be reversed on appeal to Supreme Court for error in admission of incompetent evidence which was either of no effect, or, if effective, was prejudicial to appellee and not to appellant. Magnolia Miss Dress Co. v. Zorn, 204 Miss. 1, 36 So. 2d 795, 1948 Miss. LEXIS 337 (Miss. 1948).

Judgment not valid as to co-defendants not served with process, but under this section it is valid against those defendants over whom the court acquired jurisdiction. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Case not reversed as to partners served with process merely because others were not served. Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, 1917 Miss. LEXIS 247 (Miss. 1917).

In action for wrongful killing of person, judgment against railroad company, but also in favor of conductor sued jointly with it, presents no ground for reversal. St. Louis & S. F. R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 1910 Miss. LEXIS 27 (Miss. 1910).

A third party, claiming title to property seized in attachment proceedings, cannot complain of errors committed against defendant. Whitney v. Gregory, 16 So. 292 (Miss. 1894).

Where one of several defendants appealed from the decree against him, and his co-defendants, who had been defectively served by publication, entered their appearance in the supreme court and consented to a severance, thereby electing to abide by the decree, the appellant could not complain of the error against his co-defendants who failed to assign it. Burks v. Burks, 66 Miss. 494, 6 So. 244, 1889 Miss. LEXIS 135 (Miss. 1889).

Where suit commenced by attachment was premature as to one defendant but not as to the other, it was proper to affirm the judgment as to the latter and reverse the judgment against the former. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

A defendant in a judgment in attachment has no right to complain of errors in a judgment against a garnishee therein who does not complain. Tabler, Crudup & Co. v. Mitchell, 62 Miss. 437, 1884 Miss. LEXIS 100 (Miss. 1884).

3. Statute held inapplicable.

This section does not apply to a judgment absolutely void as to all parties. Weis v. Aaron, 75 Miss. 138, 21 So. 763, 1897 Miss. LEXIS 98 (Miss. 1897), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 687- 689, 692- 698.

CJS.

5 C.J.S., Appeal and Error §§ 1232 et seq., 1106-1109.

§ 11-3-39. Judgments affirmed in part and reversed in part.

Where the judgment appealed from is for property, real or personal, and damages, the supreme court, finding the judgment to be erroneous as to the damages only, may affirm it as to the property and reverse and remand it for a new trial as to the damages, and may adjudge the costs as may be proper.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (7); 1857, ch. 63, art. 13; 1871, § 415; 1880, § 1441; 1892, § 4379; 1906, § 4945; Hemingway’s 1917, § 3221; 1930, § 3405; 1942, § 1989.

JUDICIAL DECISIONS

1. In general.

2. Costs.

1. In general.

Obligations of partners, joint and several; judgment may be rendered against one partner in suit against both; judgment against all partners when evidence authorized the judgment against only one reversed in part and affirmed in part. Wise v. Cobb, 135 Miss. 673, 100 So. 189, 1924 Miss. LEXIS 58 (Miss. 1924).

In civil actions Supreme Court has common law power to award new trials on issue of damages only. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

This section and the preceding one [Code 1942, § 1988] (§ 4944, Code of 1906) do not by the rule “expressio unius est exclusio alterius” prohibit the Supreme Court from limiting the issues on granting new trial where such right exists by some other statute or the common law. Yazoo & M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 1914 Miss. LEXIS 287 (Miss. 1914).

This section does not apply to judgment at law for default in payment over of taxes collected. Adams v. Carter, 92 Miss. 579, 47 So. 409, 1908 Miss. LEXIS 255 (Miss. 1908) but see Davis v. Noblitt & Capers Electric Co., 594 So. 2d 610, 1992 Miss. LEXIS 65 (Miss. 1992).

2. Costs.

Where affirmance of the judgment below is conditioned on a remittitur of damages, costs below should be adjudged against appellant, and the appeal costs may properly be assessed one-half to appellant and one-half to appellees. Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Where judgment for plaintiff was reversed in part and Supreme Court rendered judgment trial court should have rendered, defendant was “successful party” entitled to full costs on appeal. Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 1932 Miss. LEXIS 306 (Miss. 1932).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 687- 689, 692- 698.

CJS.

5 C.J.S., Appeal and Error §§ 1232 et seq., 1106-1108.

§ 11-3-41. Final judgment to be certified to court below; collection of court costs.

It shall be the duty of the clerk of the court below, upon receiving the mandate of the Supreme Court, to issue the proper execution on the final judgment or decree, if the same be for the plaintiff in the original cause, for the amount of money or other thing adjudged to the plaintiff, and all costs paid in the court below if not previously paid; and, if the judgment be rendered for the defendant in the original cause, then, on receipt of the mandate, execution shall issue against the plaintiff in the cause for the defendant’s costs paid in the court below. In cases where the Supreme Court assesses the costs against the appellee, the appellant shall, with no further court action, be entitled to a judgment against the appellee in the amount expended by the appellant on court costs. The appellee shall be responsible for the cost of collection of this judgment, including attorney’s fees. If the Clerk of the Supreme Court fails to issue the mandate as required, he shall forfeit to the aggrieved party One Hundred Dollars ($100.00), to be recovered by motion before the Supreme Court on five (5) days’ notice.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class 4, art. 1 (8); 1857, ch. 63, art. 14; 1871, § 416; 1880, § 1442; 1892, § 4380; 1906, § 4946; Hemingway’s 1917, § 3222; 1930, § 3406; 1942, § 1990; Laws, 1978, ch. 335, § 5; Laws, 1979, ch. 482, § 1; Laws, 1991, ch. 573, § 15, eff from and after July 1, 1991.

Cross References —

Chancery money decrees being furnished to circuit clerk, see §9-5-159.

Final record of causes in chancery court, see §9-5-161.

Final record of suits in circuit court, see §9-7-127.

Execution on judgments and decrees, see §§13-3-111 et seq.

JUDICIAL DECISIONS

1. In general.

2. Certification of judgment.

3. —Final judgment or decree.

4. Enforcement of judgment.

5. Under former law.

1. In general.

Where a suggestion of error was filed in the supreme court after rendition of judgments of affirmance by the supreme court on appeal, this filing had the effect of suspending the judgment, so that the parties who had three months for performance of condition of judgment had three months after disposal of suggestion of error to perform such condition. Burton v. Redmond, 220 Miss. 704, 71 So. 2d 772, 1954 Miss. LEXIS 486 (Miss. 1954).

Where defendant was convicted of crime of robbery with firearms and suggestion of error was overruled by Supreme Court of the state and later Supreme Court of United States dismissed the appeal and the mandate of the court was received and filed by the clerk of court, a petition for stay of mandate which was unknown to the procedure in the Supreme Court after the overruling of a suggestion of error in a criminal case was unauthorized. Brooks v. State, 213 Miss. 1, 56 So. 2d 9, 1952 Miss. LEXIS 325 (Miss. 1952).

An appeal from a county court judgment denying petition for habeas corpus to secure release of accused who is held as fugitive from justice, and after the bond for appeal to the Supreme Court was approved and filed, the only method known to reinvest jurisdiction in the county court is by reversal and remand thereto by the Supreme Court and the filing in the county court of a mandate from the Supreme Court. Roberson v. Quave, 211 Miss. 398, 51 So. 2d 777, 1951 Miss. LEXIS 370 (Miss. 1951).

It was neither the desire nor the intention of the legislature in the enactment of this section, to regulate or limit the jurisdiction of the supreme court in the matter of entertaining timely suggestions of error for the purpose of reconsidering, modifying or changing its decisions and judgments, as the circumstances and justice of the case may require. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

2. Certification of judgment.

The supreme court was not divested of jurisdiction to hear a manslaughter case on suggestion of error after mandate was issued to and received by the court below upon reversal of the case by a division of the supreme court, where within the fifteen days allowed for filing such suggestion of error, an extension of time was granted so as to allow thirty days for filing the same, as shown by an order duly entered upon the minutes of the court prior to the expiration of the original fifteen days allowed, notwithstanding that no order was entered in the supreme court, nor notice given to the court below, recalling such mandate at any time prior thereto. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

An appellate court may recall its mandate where it has been inadvertently issued, or where it has been prematurely and erroneously issued before the expiration of the time allowed for a rehearing. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

The proper construction of this section requires the clerk of the supreme court to certify a final judgment or decree within twenty days after any suggestion of error shall have been disposed of or, if none has been filed, that he then certify the judgment and issue the mandate, within the period so prescribed, after the time allowed under the rule for filing a suggestion of error, or the extended time granted under an order of the court for that purpose, shall have expired. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

Where on appeal decree is entered making injunction perpetual which is certified to lower court for execution the cause is at end and lower court has no further jurisdiction. George v. Caldwell, 98 Miss. 820, 54 So. 316, 1910 Miss. LEXIS 129 (Miss. 1910).

3. —Final judgment or decree.

A final judgment or decree within the meaning of this section [Code 1942, § 1990] is not necessarily one that terminates the litigation in the case, but one that disposes finally of the appeal. Mobile & O. R. Co. v. Watly, 69 Miss. 475, 12 So. 558, 1891 Miss. LEXIS 118 (Miss. 1891).

4. Enforcement of judgment.

A mandate will not direct issuance of execution against the principal defendant and the sureties on his appeal bond for the sum of all sums due under the judgment affirmed. Thomas v. Cook, 236 Miss. 365, 109 So. 2d 861, 1959 Miss. LEXIS 327 (Miss. 1959).

Supreme Court’s judgment must be enforced by court from which appeal came after its certification thereto by Supreme Court. Eastman-Gardiner Naval Store Co. v. Gregory, 169 Miss. 782, 139 So. 626, 1932 Miss. LEXIS 3 (Miss. 1932).

Supreme Court judgment, affirming circuit court judgment, affirming county court judgment, need not direct circuit court to remand case for enforcement by execution. Brandon v. Interstate Life & Acci. Co., 149 Miss. 814, 116 So. 739, 1928 Miss. LEXIS 99 (Miss. 1928).

Failure to obey judgment should be punished by court rendering it. Ganong v. Jonestown, 98 Miss. 265, 53 So. 594, 1910 Miss. LEXIS 60 (Miss. 1910).

5. Under former law.

Where an appeal by the plaintiff has been dismissed and costs were taxed to the plaintiff, but the costs were never paid, the clerk of the reviewing court could properly withhold mandate as long as the costs were not paid. Edmonds v. Delta Democrat Publishing Co., 221 Miss. 785, 75 So. 2d 73, 1954 Miss. LEXIS 594 (Miss. 1954).

Statutes permitting suit in forma pauperis applies only to a court of original jurisdiction and not to courts of appeal so as to permit setting down of a mandate on an affidavit in forma pauperis. Life & Casualty Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 200 So. 732, 1940 Miss. LEXIS 183 (Miss. 1940).

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 clerk of the Supreme Court cannot be compelled to certify to the court below a final judgment or decree until the costs of the appeal, including costs for which he may issue execution, shall be paid. Mobile & O. R. Co. v. Watly, 69 Miss. 475, 12 So. 558, 1891 Miss. LEXIS 118 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Attorneys’ fees as recoverable in fraud action. 44 A.L.R.4th 776.

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 670, 671.

CJS.

5 C.J.S., Appeal and Error §§ 1136-1139.

Law Reviews.

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

§ 11-3-43. Copy of opinion certified to court below; costs in event of successful appeal.

In all cases in which the Supreme Court shall reverse the judgment or decree of the court below, and remand the cause to be proceeded within such court, or remand a cause for further proceedings, the Clerk of the Supreme Court shall prepare and certify a copy of the opinion of the Supreme Court in the case, and send it, with the mandate of the judgment or decree rendered in the cause by the Supreme Court, to the clerk of the court from which the cause was brought, or to which it may be remanded. The copy of the opinion furnished shall be preserved by the clerk to whom it is delivered, for the use of the court and parties in the case.

But in all cases wherein the appellant has paid the costs of his appeal and is the successful litigant and the action is reversed and remanded for further proceedings, with costs taxed against the appellee, the action shall not proceed further before the trial court, on application of the appellee, until the appellee has paid to the clerk of the trial court, for the benefit of the appellant, the costs so paid by the appellant in perfecting his successful appeal. Should the appellee fail to make such a refund of costs to the trial court within two (2) years next after the date of the judgment of reversal and remand by the Supreme Court, the appellee, his heirs or assigns, shall not thereafter be entitled to proceed further at his own instance and the appellee’s right of action, as well as his remedy, shall be forever barred and extinguished.

HISTORY: Codes, 1880, § 1443; 1892, § 4381; 1906, § 4947; Hemingway’s 1917, § 3223; 1930, § 3407; 1942, § 1991; Laws, 1948 ch. 238; Laws, 1978, ch. 335, § 6; Laws, 1991, ch. 573, § 16; Laws, 1993, ch. 452, § 1, eff from and after passage (approved March 22, 1993).

Cross References —

Issuance and stay of mandate, see Miss. R. App. P. 41.

JUDICIAL DECISIONS

1. In general.

Section 11-3-43, requiring that costs be paid in order to obtain a mandate and that it be done within 2 years or the appellee will be barred from pursuing the action on remand, was tolled and did not run on an appellee’s right to retrial following remand where a mandate had been issued by the clerk of the Supreme Court, even though costs had not been paid. Martin v. Reikes, 587 So. 2d 285, 1991 Miss. LEXIS 677 (Miss. 1991).

It is not within the province of the Supreme Court to deliver advisory opinions. Gipson v. State, 203 Miss. 439, 36 So. 2d 154 (1948).

Taxation of costs on affirmance in part and reversal in part. Boyd v. Applewhite, 123 Miss. 185, 85 So. 87, 1920 Miss. LEXIS 17 (Miss. 1920).

It is not essential under this section [Code 1942, § 1991] to the authority of an inferior court to proceed in a remanded case that the opinion of the Supreme Court should accompany the mandate. Adams v. Yazoo & M. V. R. Co., 77 Miss. 194, 24 So. 200, 1899 Miss. LEXIS 36 (Miss. 1899), aff'd, 180 U.S. 1, 21 S. Ct. 240, 45 L. Ed. 395, 1901 U.S. LEXIS 1278 (U.S. 1901).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 27- 31, 46.

Law Reviews.

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

§ 11-3-45. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 1444; 1892, § 4382; 1906, § 4948; Hemingway’s 1917, § 3224; 1930, § 3408; 1942, § 1992; Laws, 1978, ch. 335, § 7]

Editor’s Notes —

Former §11-3-45 required that the appellant prepay certain costs.

Chapter 5. Practice and Procedure in Chancery Courts

General Provisions

§ 11-5-1. Venue of suits.

Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom, shall be brought in the county where the land, or some part thereof, is situated; suits against executors, administrators, and guardians, touching the performance of their official duties, and suits for an account and settlement by them, and suits for the distribution of personalty of decedents among the heirs and distributees, and suits for the payment of legacies, shall be brought in the chancery court in which the will was admitted to probate, or letters of administration were granted, or the guardian was appointed; other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be; and all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found; and in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court.

HISTORY: Codes, 1857, ch. 62, art. 6; 1871, § 977; 1880, § 1847; 1892, § 510; 1906, § 561; Hemingway’s 1917, § 321; 1930, § 363; 1942, § 1274.

Cross References —

Chancellors, terms, general powers and duties of chancery court, see §§9-5-1 et seq.

Application to all courts of circuit court civil practice provisions, see §11-7-1.

Venue of actions and suits generally, see §§11-11-1 et seq.

Provisions relating to injunctions generally, see §§11-13-1 et seq.

Suits to confirm title or interest, and to remove clouds on title, see §§11-17-1 et seq.

Partition of land by chancery court, see §11-21-3.

Sequestration of property, see §§11-29-1 et seq.

Attachment in chancery against nonresident, absent or absconding debtors, see §11-31-1 et seq.

Garnishment proceedings, see §§11-35-1 et seq.

Habeas corpus proceedings, see §§11-43-1 et seq.

Suits against state or its political subdivisions, see §§11-45-1 et seq.

Rules of evidence generally, see §§13-1-1 et seq.

Process, publication and notice generally, see §§13-3-1 et seq.

Limitation of actions concerning land, see §§15-1-7,15-1-9.

Rules governing practice and procedure in chancery courts, see Miss. Uniform Chancery Court Rules 1.00 et seq.

JUDICIAL DECISIONS

1. In general.

2. Suits to confirm, or remove clouds from, title.

3. Other suits involving real or personal property.

4. Suits involving executors, etc.

5. Venue where defendant resides or is found.

6. —Necessary party defendant.

1. In general.

General venue statute for chancery court did not apply in the State’s action against pharmaceutical manufacturers because the location of a foreign corporation’s registered agent was irrelevant to determine venue; because the general venue statute for chancery court did not apply, and the general venue statute provided criteria that did not rely on the location of a registered agent, the trial court’s reliance on the general venue state was appropriate. Purdue Pharma L.P. v. State, 256 So.3d 1, 2018 Miss. LEXIS 415 (Miss. 2018).

Where plaintiff sued the Mississippi Attorney General to obtain discovery from him for use in an administrative proceeding, as the suit was against him in his official capacity, and under Miss. Const. Art. 4, § 101, the seat of state government was in Hinds County, venue was proper there, not in Rankin County, where he lived. Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So. 2d 939, 2004 Miss. LEXIS 12 (Miss. 2004).

A party waived his right to raise the defense of improper venue when he failed to include that defense with his initial Motion to Quash and Set Aside and extended to the court the authority to hear the Motion to Quash without raising the defense of improper venue. Lowrey v. Last Will & Testament of Smith, 543 So. 2d 1155, 1989 Miss. LEXIS 185 (Miss. 1989).

Venue was not proper in Forrest County while action in Hinds County was pending and abeyance agreed to, where statute provided that one aggrieved by denial of access to public records could institute suit in Chancery Court of County in which public body was located; contention that Board of Trustees of state institutions of higher learning could be sued in any county where it did business was rejected, where to do so would require Board to defend actions in all 82 counties; Chancery Court has no jurisdiction over defendant who neither resides nor is found in county where suit is filed, absent waiver. Board of Trustees v. Slyke, 510 So. 2d 490, 1987 Miss. LEXIS 2982 (Miss. 1987).

A Mississippi court is without jurisdiction to quiet title to lands in another state. Jacobson v. Jones, 236 Miss. 640, 111 So. 2d 408, 1959 Miss. LEXIS 360 (Miss. 1959).

This section does not confer jurisdiction, but fixes the venue or locality in which suits may be tried of which the chancery court has jurisdiction. State ex rel. Gully v. Massachusetts Bonding & Ins. Co., 187 Miss. 66, 191 So. 285, 1939 Miss. LEXIS 79 (Miss. 1939).

Chancery court has jurisdiction to remove trustee, irrespective of his domicile. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

This statute does not apply to suits for partition of land. Such suits are governed by the chapter on that subject. Nugent & McWillie v. Powell, 63 Miss. 99, 1885 Miss. LEXIS 23 (Miss. 1885).

2. Suits to confirm, or remove clouds from, title.

In a case in which appellant forfeited property to the State for failure to pay taxes, the Chancery Court of Hinds County did not abuse its discretion in granting the Secretary of State’s motion to transfer venue to the Chancery Court of Rankin County because suits to confirm title to real property had to be brought in the county where the land was located; and the property was located in Rankin County. Green Hills Dev. Co., LLC v. Sec'y of State, 275 So.3d 1077, 2019 Miss. LEXIS 254 (Miss. 2019).

Where, in a suit to enjoin the defendants from foreclosing a deed of trust and to cancel such deed of trust as a cloud upon complainants’ title, title to that part of the land covered by the deed of trust situated in the county in which the suit was brought had, at the time suit was brought, matured in the state under tax sales, and the defendants moved to dismiss the suit because the court had no territorial jurisdiction in that the rest of the land was situated in another county, but the suit was dismissed on another ground urged in such motion, defendants’ failure on complainants’ appeal from dismissal to urge the point that suit could not be maintained other than that in which it was situated, constituted waiver of the point. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

A suit to cancel a claim against land as a cloud upon the title, where the property is in possession of the complainant and the court is not asked to make any disposition thereof, should not be held to be a proceeding purely in rem in the sense that a court would be wholly without jurisdiction in a county other than where the land is situated. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

3. Other suits involving real or personal property.

Venue was not jurisdictional a brother’s action to set aside a deed to the family farm from their mother to a revocable trust, and the sister waived any objection to the suit being heard in the county because the venue issue was never pursued to a ruling in the chancery court. Hodnett v. Hodnett, 269 So.3d 317, 2018 Miss. App. LEXIS 189 (Miss. Ct. App.), cert. denied, 258 So.3d 287, 2018 Miss. LEXIS 527 (Miss. 2018).

Where the insurer alleged that the insured committed insurance fraud, the insured’s assertion that it was an in personam action, with venue in the county where the insured resided, was rejected; the specific terms of Miss. Code Ann. §11-5-1 regarding venue for real and personal property actions, prevailed over the general terms of Miss. Code Ann. §11-11-3, which placed venue generally in the county of the defendant’s residence, thus, venue was properly in the county of the insurer’s office where the certificates were issued, and from where the claims were paid. Guice v. Miss. Life Ins. Co., 836 So. 2d 756, 2003 Miss. LEXIS 56 (Miss. 2003).

Trial court did not err in failing to grant defendant’s motion to transfer venue or for change of venue where debtors on mortgage were domiciled in county where property secured by deed of trust was located, but action was brought in different county; notes given by debtors on their face were payable in county where action was brought, and under §75-3-504, where negotiable instrument is payable in two places, holder has option to present it at either and is not under obligation to notify maker at which of places demand will be made. Haygood v. First Nat'l Bank, 517 So. 2d 553, 1987 Miss. LEXIS 2923 (Miss. 1987).

In an action to set aside an allegedly fraudulent conveyance of personal property, venue was in the county in which the property was located since the specific terms of Code 1972, §11-5-1 prevail over the general terms of Code 1972, §11-11-3. Green v. Winona Elevator Co., 319 So. 2d 224, 1975 Miss. LEXIS 1475 (Miss. 1975).

In a bill to recover a commission for producing a purchaser for real property owned by defendants and sold to a codefendant, and for an amount expended for authorized repairs, where the property lay in Jackson County, and the alleged contract of sale was made in that county and an alleged fraud occurred therein, the chancery court of the county had jurisdiction over the subject matter; and when the defendants entered their appearances, the court acquired jurisdiction of the parties. Arndt v. Turner, 230 Miss. 294, 92 So. 2d 875, 1957 Miss. LEXIS 371 (Miss. 1957).

In a proceeding upon attachment in chancery to recover for injuries received and to attach nonresident corporate defendant’s funds and property at the hands of Mississippi corporation which operated a motor transportation line in Winston County and a person residing in Choctaw County, although another defendant resided in Hinds County, venue was properly laid in Winston County. Continental Southern Lines, Inc. v. Wicker, 217 Miss. 856, 65 So. 2d 272, 1953 Miss. LEXIS 501 (Miss. 1953).

A purchaser under an executory contract for sale and purchase of land is entitled to equitable lien upon the land for amount which he has paid on purchase price, where the vendor failed to make good title within time required by contract, and the purchaser could maintain a suit in chancery court of the county in which the farm was located to impose an equitable lien. Cole v. Haynes, 216 Miss. 485, 62 So. 2d 779, 1953 Miss. LEXIS 659 (Miss. 1953).

Suit to enjoin drainage into streams so as to cause overflow of lower land maintainable in county in which such land is situated. Board of Drainage Comm'rs v. Board of Drainage Comm'rs, 130 Miss. 764, 95 So. 75, 1922 Miss. LEXIS 253 (Miss. 1922).

A bill by a judgment-debtor, seeking to enjoin the enforcement of the judgment, and to recover from the sheriff the possession of the property levied on, is a suit respecting real or personal property, and may be filed in the county where the property is. Boswell v. Wheat, 37 Miss. 610, 1859 Miss. LEXIS 58 (Miss. 1859).

4. Suits involving executors, etc.

This section contains no provision for a compulsory change of venue where an executor is sued along with another defendant in some county other than that in which the will was admitted to probate. Myers v. Vinson, 212 Miss. 85, 54 So. 2d 168, 1951 Miss. LEXIS 430 (Miss. 1951).

Chancery court of county in which nonexempt land of decedent is located does not have jurisdiction of bill by creditor seeking lien against land for payment of his claims, when decedent’s estate is in process of administration in another county. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

No court other than chancery court in which letters of administration has been granted has jurisdiction over petition for sale of decedent’s nonexempt lands for payment of decedent’s debts. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Jurisdiction of all demands by creditors or others against an estate of a decedent is vested in chancery court of county in which letters of administration are granted. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

An action to charge administratrix, and her sureties, for devastation of a deceased war veteran’s estate, consisting of the proceeds of war risk insurance and adjusted compensation, and also to charge the chancery clerk of Choctaw County for his negligent loss of one of the bonds securing the proper administration of the estate, was properly brought in Choctaw County where the administration of the estate was in such county and one of the defendants was the chancery clerk thereof. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

Suit on bond of executor appointed in Tennessee to pay over money converted in Mississippi to be administered in accordance with laws of Tennessee was maintainable in Mississippi. Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, 1910 Miss. LEXIS 132 (Miss. 1910).

Courts of this state have jurisdiction of suit by creditors on executrix’s bond for concealing assets, though executrix resides in Alabama, where administration is undertaken in Mississippi, executrix resided here at decedent’s death, the assets have their situs here, and her surety resides here. Myers v. Martinez, 95 Miss. 104, 48 So. 291, 1909 Miss. LEXIS 206 (Miss. 1909).

5. Venue where defendant resides or is found.

The chancery court of Hinds County should have transferred a separate maintenance suit to the Rankin County chancery court, even though the defendant was temporarily residing in Hinds County where he was found for the service of process, where the defendant owned a home in Rankin County which he still considered to be his residence, he was registered to vote and did vote in Rankin County, and he had a homestead exemption on a home in Rankin County; the mere fact that the defendant was not actually present in his home did not mean that it was not his residence. Dunn v. Dunn, 577 So. 2d 378, 1991 Miss. LEXIS 117 (Miss. 1991).

Decision by chancery court in Walthall County that reversed Medicaid’s decision denying a claimant nursing home benefits was reversed on appeal, where venue was improper in Walthall County; venue was proper in Hinds County, the seat of state government. Office of the Governor Div. of Medicaid v. Johnson, 950 So. 2d 1033, 2006 Miss. App. LEXIS 747 (Miss. Ct. App. 2006).

Putative father sued for support in both maternity proceeding under §93-9-17 and support proceeding under §43-19-33 has right to have cause heard in county in which he resides, if he is resident of state of Mississippi; defendant must timely assert right to venue in county of residence via Rule 12(b)(3) motion, and failure to do so amounts to waiver. Belk v. State Dep't of Public Welfare, 473 So. 2d 447, 1985 Miss. LEXIS 2179 (Miss. 1985).

In an action for an injunction and the recovery of damages against multiple defendants who had engaged in an economic boycott against plaintiffs’ businesses, the chancery court did not err in refusing to grant a change of venue from Hinds County to Claiborne County where at least three of the defendants “resided” in the First Judicial District of Hinds County. NAACP v. Claiborne Hardware Co., 393 So. 2d 1290, 1980 Miss. LEXIS 2174 (Miss. 1980), amended, 405 So. 2d 115, 1981 Miss. LEXIS 2244 (Miss. 1981), rev'd, 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215, 1982 U.S. LEXIS 49 (U.S. 1982).

A suit for alimony pendente lite, separate maintenance, and attorneys’ fees which was brought in Tate County, the residence of the wife, should have been transferred to the chancery court of Alcorn County where the evidence established that the latter county was the residence of the husband, and the husband had made timely objection to the venue. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

Wife’s separate maintenance suit should be brought in county of which husband is resident. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

In an action to recover damages for alleged tort against a sheriff (a nonresident of the county), his surety, a nonresident corporation, and certain resident garnishee defendants, the defendants were entitled to have the venue changed to the county of the sheriff’s residence, in view of the statute providing for the change of venue of an action against a public officer to the county of his residence upon his application, notwithstanding another provision that “all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be bound.” Holyfield v. State, 194 Miss. 91, 10 So. 2d 841, 1942 Miss. LEXIS 165 (Miss. 1942).

A cause of action to recover for usurious interest charges, forfeiture of principal, and an accounting for the price of cotton produced by plaintiff’s assignors accrued in the county in which suit was brought by reason of the fact that some of plaintiff’s assignors were tenants of a defendant’s plantation situated in that county, but that did not give the chancery court of such county jurisdiction where the defendant in question did not reside or could not be found therein, since under this section [Code 1942, § 1274], in cases of this character, the venue was in the county where a necessary party defendant might reside or be found. McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847, 1940 Miss. LEXIS 211 (Miss. 1940).

Suit against nonresidents temporarily engaged in road construction in state must be brought in county where road being constructed and where process served on three of them, although purchase-money notes for trucks sold two defendants were payable in another county. Brashier v. J. C. O'Connor & Sons, 181 Miss. 872, 180 So. 67, 1938 Miss. LEXIS 126 (Miss. 1938).

Chancery court had jurisdiction over nonresident stockholder who was made party defendant to suit by superintendent of banks against all stockholders of bank to recover statutory liability from stockholders, in absence of contention that none of stockholders resided in county where suit was brought. Anderson v. Love, 169 Miss. 219, 151 So. 366, 153 So. 369, 1933 Miss. LEXIS 8 (Miss. 1933), set aside, 169 Miss. 237, 153 So. 369 (Miss. 1934).

Attachment suit against nonresidents brought in county of any necessary defendants as authorized by statute does not unconstitutionally discriminate against any necessary defendant. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Statute fixing venue in action against railroad in any county in which line of railroad runs is applicable only when railroad is sued alone; suit against two or more railroads as necessary defendants or against several defendants living in separate counties falls under provisions of general venue statutes. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Where divorce decree granted in H. County did not provide for child’s maintenance, chancery court of another county, where divorced husband resided, had jurisdiction of suit for moneys expended for child’s maintenance, etc. Schneider v. Schneider, 155 Miss. 621, 125 So. 91, 1929 Miss. LEXIS 344 (Miss. 1929).

A bill to foreclose a deed of trust may be filed in the chancery court where the trustee resides, although the property and all other defendants reside elsewhere. Moyse v. Cohn, 76 Miss. 590, 25 So. 169, 1898 Miss. LEXIS 134 (Miss. 1898).

A bill by the pledgor of a promissory note against the mortgagor and pledgee may be filed in the chancery court of the county in which the pledgee resides. Baker v. Burkett, 75 Miss. 89, 21 So. 970, 1897 Miss. LEXIS 102 (Miss. 1897).

A purchaser of land situated in another state can maintain a bill in the chancery court of the county of this state where his vendor resides to enforce the warranty of title and obtain reimbursement for expenditures in resisting a suit and extinguishing a paramount title. Oliver v. Loye, 59 Miss. 320, 1881 Miss. LEXIS 124 (Miss. 1881), limited, Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 1940 Miss. LEXIS 104 (Miss. 1940).

6. —Necessary party defendant.

In an attachment proceeding in chancery against a nonresident defendant, the presence of a resident defendant, who was alleged to have in his possession property of such nonresident defendant, was absolutely necessary to enable the complainant to proceed with her suit and to realize on any decree in her favor. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So. 2d 844, 1941 Miss. LEXIS 172 (Miss. 1941).

Where, at the time of filing an action to recover for alleged usurious interest charges, forfeiture of principal, and for an accounting for the price of cotton produced by the plaintiff’s assignor, there was an agreement that one of the defendants, residing in the county in which suit was brought, would not be heard by the suit, he was not a necessary party and the chancery court was warranted in dismissing the suit as to all defendants for want of a necessary party residing in that county, it being immaterial what consideration induced the agreement. McRae v. Ashland Plantation Co., 187 Miss. 350, 192 So. 847, 1940 Miss. LEXIS 211 (Miss. 1940).

Superintendent of banks could join all bank stockholders in suit in equity to recover statutory liability from stockholders who were all proper parties thereto. Anderson v. Love, 169 Miss. 219, 151 So. 366, 153 So. 369, 1933 Miss. LEXIS 8 (Miss. 1933), set aside, 169 Miss. 237, 153 So. 369 (Miss. 1934).

Seller’s agent not accounting for receipts held not necessary party to seller’s action against buyer for balance due for sheep sold, as regards venue. Burgin v. Smith, 163 Miss. 797, 141 So. 760, 1932 Miss. LEXIS 88 (Miss. 1932).

RESEARCH REFERENCES

ALR.

Venue of suit to enjoin nuisance. 7 A.L.R.2d 481.

Relationship between “residence” and “domicil” under venue statutes. 12 A.L.R.2d 757.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Place of personal representative’s appointment as venue of action against him in his official capacity. 93 A.L.R.2d 1199.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 38, 39, 108, 114 .

20A Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 25.1 (Complaint, petition, or declaration – To remove cloud on title – To enjoin construction of edifice until boundary dispute determined).

CJS.

30A C.J.S., Equity §§ 84-99, 129.

Lawyers’ Edition.

State venue provisions for civil actions as violating equal protection clause of Federal Constitution’s Fourteenth Amendment – Supreme court cases. 119 L. Ed. 2d 665.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

§ 11-5-3. Issue may be tried by a jury.

The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried to be made up in writing. The jury shall be drawn in open court from the jury box used in the circuit court, in the presence of the clerk of the circuit court who shall attend with the box for that purpose. The number drawn shall not exceed twenty, and the slips containing the names shall be returned to the box. The clerk of the chancery court shall issue the venire facias to the sheriff, returnable as the court shall direct. If there be no jury box the jury may be obtained as provided for in the circuit court in such case. The sheriff and jurors, for failure to perform duty or to attend, shall be liable to like penalty as in the circuit court. The parties shall have the same right of challenge as in trials in the circuit court, and the jury may be completed in the same manner. The chancellor may instruct the jury in the same way that juries are instructed in the circuit court, and the parties shall have the same rights in respect thereto; the instructions shall be filed in the cause and become a part of the record, and the chancellor shall sign bills of exceptions as in the circuit court, and the court may grant new trials in proper cases.

HISTORY: Codes, 1880, § 1836; 1892, § 507; 1906, § 558; Hemingway’s 1917, § 318; 1930, § 364; 1942, § 1275.

Cross References —

Questions of negligence for the jury, see §11-7-17.

Instructions to jury in civil cases, see §11-7-155.

Juries, generally, see §§13-5-1 et seq.

The rules governing the examination, selection of, and challenges to jurors, and for those covering jury instructions, see Miss. R. Civ. P. 47, 48, 51.

JUDICIAL DECISIONS

1. In general.

2. Discretion of court.

3. Questions on appeal.

1. In general.

Where legislature adopted the construction placed upon this section by Supreme Court by re-enacting it, such construction is binding on Supreme Court. Griffin v. Jones, 170 Miss. 230, 154 So. 551, 1934 Miss. LEXIS 126 (Miss. 1934).

Circuit court clerk is custodian of the jury box and must place therein slips containing jurors’ names in accordance with list furnished him. Nelson v. State, 160 Miss. 401, 133 So. 248, 1931 Miss. LEXIS 159 (Miss. 1931).

Laws 1910 ch. 134 giving chancery courts concurrent jurisdiction of suits for penalty for violation thereof does not violate Const. 1890 §§ 26, 31, since, under this section (§ 558, Code 1906), the chancellor is empowered to award a jury trial when needed. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

2. Discretion of court.

Under Code 1972 §11-5-3, §91-7-23, and §91-7-29, prescribing will contest procedures, trial judge erred in directing verdict in favor of proponents of will on issue of testamentary capacity and undue influence, since roll of jury in will contest is same as that of jury in civil trial in court of law and is not “merely advisory.” Fowler v. Fisher, 353 So. 2d 497, 1977 Miss. LEXIS 2002 (Miss. 1977).

In litigation, growing out of death and injuries sustained in a collision of two automobiles, filed in the chancery court in the county where letters of administration on the decedent’s estates were issued, complainants charged that the accident was due to the negligence of a construction company, through its agent, in obstructing the highway, charged negligence in the operation of his automobile on the part of another defendant, who allegedly was an agent of a nonresident insurance company, and also charged, on information and belief, that another defendant had money and effects of the nonresident insurance company, and prayed for an attachment, where upon appeal from the decrees in favor of complainants, the Supreme Court found no reversible error in the record, the judgment would not be reversed in view of Mississippi Constitution § 147, and while the chancery court in his discretion might have directed the trial of the case by jury, error could not be predicated upon the refusal of a jury trial. Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 1957 Miss. LEXIS 512 (Miss. 1957).

Under this section, the court was authorized in its discretion to allow the jury to try the issue involving conflicting claims to realty, but since the granting of a jury trial is wholly discretionary, the court may disregard the finding of the jury when made. Laub v. Reason, 217 Miss. 475, 64 So. 2d 637, 1953 Miss. LEXIS 454 (Miss. 1953).

In suit for partition where cross-bill denied complainant’s title a jury trial is within the discretion of the court. Bland v. Bland, 105 Miss. 478, 62 So. 641, 1913 Miss. LEXIS 233 (Miss. 1913).

In suit by trustee in bankruptcy for an accounting to recover preferences whether the issues shall be submitted to a jury is within the discretion of the court. Carradine v. Estate of Carradine, 58 Miss. 286, 1880 Miss. LEXIS 123 (Miss. 1880); First State Bank v. Lincoln, 97 Miss. 720, 53 So. 387, 1910 Miss. LEXIS 292 (Miss. 1910).

3. Questions on appeal.

Neither chancellor nor jury have an arbitrary right to disregard testimony which is neither inconsistent with laws of nature nor contradicted either by direct or circumstantial evidence. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

In determining question whether trial court erred in granting appellee’s peremptory instruction, it being urged that there was evidence on which jury might have rendered adverse verdict, question presented is whether decree of chancellor was correct irrespective of jury and as if no jury had been present. Griffin v. Jones, 170 Miss. 230, 154 So. 551, 1934 Miss. LEXIS 126 (Miss. 1934).

Where chancellor approves jury verdict by rendering judgment thereon Supreme Court will not reverse for misdirection of jury unless the facts do not support the verdict, or the chancellor misconceived the law. Studdard v. Carter, 120 Miss. 246, 82 So. 70, 1919 Miss. LEXIS 81 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Right in equity suit to jury trial of counterclaim involving legal issue. 17 A.L.R.3d 1321.

Prospective juror’s connection with insurance company as ground for challenge for cause. 9 A.L.R.5th 102.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 168- 172, 187.

§ 11-5-5. Change of venue in jury cases allowed.

The chancery court may award a change of venue for the trial of all issues to be tried by a jury pursuant to the procedure provided for in the Mississippi Rules of Civil Procedure. The clerk of the court from which the issue is to be removed, and the clerk of the court to which it is removed, respectively, shall, upon an order for a change of venue, discharge the duties directed to be performed by the clerks of circuit courts in such cases; and in such case the chancery court to which the venue is changed shall try the issue by a jury, and shall proceed and render decrees and finally dispose of the cause as if the suit had begun therein.

HISTORY: Codes, 1880, § 1837; 1892, § 508; 1906, § 559; Hemingway’s 1917, § 319; 1930, § 365; 1942, § 1276; Laws, 1991, ch. 573, § 17, eff from and after July 1, 1991.

Cross References —

Change of venue generally, see §§11-11-51 et seq.

Rule governing change of venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

A party waived his right to raise the defense of improper venue when he failed to include that defense with his initial Motion to Quash and Set Aside and extended to the court the authority to hear the Motion to Quash without raising the defense of improper venue. Lowrey v. Last Will & Testament of Smith, 543 So. 2d 1155, 1989 Miss. LEXIS 185 (Miss. 1989).

Provision that chancery court to which venue is changed shall try the issue by jury is mandatory. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 1922 Miss. LEXIS 106 (Miss. 1922).

RESEARCH REFERENCES

ALR.

Construction and effect of statutory provision for change of venue for the promotion of the convenience of witnesses and ends of justice. 74 A.L.R.2d 16.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Am. Jur.

77 Am. Jur. 2d, Venue §§ 42, 44 et seq.

CJS.

92A C.J.S., Venue §§ 118-132.

§§ 11-5-7 through 11-5-29. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-5-7. [Codes, 1857, ch. 62, art. 53; 1871, § 1032; 1880, §§ 1861, 1862; 1892, §§ 521, 522; 1906, §§ 572, 573; Hemingway’s 1917, §§ 332, 333; 1930, § 368; 1942, § 1279]

§11-5-9. [Codes, 1880, § 1865; 1892, § 525; 1906, § 576; Hemingway’s 1917, § 336; 1930, § 369; 1942, § 1280]

§11-5-11. [Codes, Hutchinson’s 1848, ch. 54, art. 7; 1857, ch. 62, art. 35; 1871, § 1069; 1880, §§ 1858, 1866, 1867; 1892, §§ 518, 526; 1906, §§ 569, 577; Hemingway’s 1917, §§ 329, 337; 1930, § 372; 1942, § 1283]

§11-5-13. [Codes, 1880, § 1869; 1892, § 527; 1906, § 578; Hemingway’s 1917, § 338; 1930, § 373; 1942, § 1284]

§11-5-15. [Codes, 1880, § 1869; 1892, § 528; 1906, § 579; Hemingway’s 1917, § 339; 1930, § 374; 1942, § 1285]

§11-5-17. [Codes, 1857, ch. 62, art. 39; 1871, § 1021; 1880, § 1889; 1892, § 549; 1906, § 600; Hemingway’s 1917, § 360; 1930, § 375; 1942, § 1286; Laws, 1924, ch. 151; Laws, 1942, ch. 299]

§11-5-19. [Codes, 1871, § 1017; 1880, § 1870; 1892, § 530; 1906, § 581; Hemingway’s 1917, § 341; 1930, § 376; 1942, § 1287]

§11-5-21. [Codes, 1871, § 1018; 1880, § 1871; 1892, § 531; 1906, § 582; Hemingway’s 1917, § 342; 1930, § 377; 1942, § 1288]

§11-5-23. [Codes, 1930, § 378; 1942, § 1289; Laws, 1924, ch. 151]

§11-5-25. [Codes, 1930, § 379; 1942, § 1290; Laws, 1924, ch. 151]

§11-5-27. [Codes, 1857, ch. 62, arts. 44, 45; 1871, §§ 1016, 1024; 1880, §§ 1873, 1892; 1892, § 533; 1906, § 584; Hemingway’s 1917 § 344; 1930, § 380; 1942, § 1291; Laws, 1962, ch. 284]

§11-5-29. [Codes, 1880, § 1874; 1892, § 534; 1906, § 585; Hemingway’s 1917, § 345; 1930, § 381; 1942, § 1292]

Editor’s Notes —

Former §11-5-7 specified the application of rules specified in this chapter.

Former §11-5-9 provided that all pleadings shall be subscribed by the party or his solicitor.

Former §11-5-11 specified what the address of bills and petitions, and what the introduction should be.

Former §11-5-13 specified what the bill must contain.

Former §11-5-15 provided that exhibits filed with a bill would be considered as if copied in the bill.

Former §11-5-17 specified when a defendant was to answer or demur.

Former §11-5-19 provided a form of demurrers.

Former §11-5-21 provided that a demurrer must have attached the solicitor’s certificate that he believes it ought to be sustained.

Former §11-5-23 specified the legal sufficiency of a bill or petition questioned by answer or demurrer, and provided for a vacation hearing on a demurrer.

Former §11-5-25 abolished pleas in chancery, required every defense to be made in the answer, and provided for a separate hearing on a plea set up in the answer, if warranted.

Former §11-5-27 required the defendant to answer all allegations and provided that a denial by reference to a designated paragraph was a sufficient denial.

Former §11-5-29 required that the answer be sworn to unless such requirement was waived, and specified how a corporation should answer.

§ 11-5-31. Before whom answers of nonresidents may be sworn.

Answers of defendants out of the state may be sworn to before any commissioner for this state, or any judge, chancellor, or any justice of the peace, notary public, or the mayor or alderman of any city or town, or clerk of a court of record, in the state or country where such defendant may be, if such officer shall be authorized to administer oaths by the law of such state or country; and the certificate of such officer as to his official character, shall be prima facie evidence thereof.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 12 (3); 1857, ch. 62, art. 50; 1871, § 1087; 1880, § 1949; 1892, § 535; 1906, § 586; Hemingway’s 1917, § 350; 1930, § 382; 1942, § 1293.

Editor’s Notes —

Pursuant to Miss. Constn., § 171, all reference in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Rules abolishing technical forms of pleading, eliminating the two witness rule, and allowing answer without oath, see Miss. R. Civ. P. 8, 11.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

§§ 11-5-33 through 11-5-47. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-5-33. [Codes, Hutchinson’s 1848, ch. 54, art. 12(6); 1857, ch. 62, art. 94; 1871, § 1087; 1880, § 1949; 1892, § 535; 1906, § 586; Hemingway’s 1917, § 346; 1930, § 383; 1942, § 1294]

§11-5-35. [Codes, 1880, § 1938; 1892, § 529; 1906, § 580; Hemingway’s 1917, § 340; 1930, § 384; 1942, § 1295]

§11-5-37. [Codes, Hutchinson’s 1848, ch. 54, art. 12(1); 1857, ch. 62, art. 51; 1871, § 1030; 1880, § 1875; 1892, § 536; 1906, § 587; Hemingway’s 1917, § 347; 1930, § 385; 1942, § 1296]

§11-5-39. [Codes, 1871, § 1066; 1880, § 1876; 1892, § 537; 1906, § 588; Hemingway’s 1917, § 348; 1930, § 386; 1942, § 1297]

§11-5-41. [Codes, 1871, § 1067; 1880, § 1877; 1892, § 538; 1906, § 589; Hemingway’s 1917, § 349; 1930, § 387; 1942, § 1298]

§11-5-43. [Codes, 1857, ch. 62, art. 43; 1871, § 1019; § 1880, § 1879; 1892, § 540; 1906, § 591; Hemingway’s 1917, § 351; 1930, § 388; 1942, § 1299]

§11-5-45. [Codes, 1857, ch. 62, art. 47; 1871, § 1026; 1880, § 1891; 1892, § 551; 1906, § 602; Hemingway’s 1917, § 362; 1930, § 389; 1942, § 1300; Laws, 1924, ch. 151]

§11-5-47. [Codes, 1857, ch. 62, art. 40; 1871, § 1022; 1880, § 1890; 1892, § 550; 1906, § 601; Hemingway’s 1917, § 361; 1930, § 390; 1942, § 1301; Laws, 1924, ch. 151.]

Editor’s Notes —

Former §11-5-33 abolished the rule requiring two witnesses to overthrow an answer.

Former §11-5-35 provided that exhibits could be proved by affidavits or witnesses.

Former §11-5-37 authorized making an answer a cross-bill against a complainant or codefendant.

Former §11-5-39 authorized a complainant to obtain an order of attachment to compel the defendant to answer when defendant fails to answer.

Former §11-5-41 required the imprisonment of a defendant who refused to answer after an attachment for the purpose of coercing an answer.

Former §11-5-43 provided that a replication to an answer was not required, but that the cause would be at issue when the answer was filed.

Former §11-5-45 abolished exceptions to bills and answers, and provided for objections by motion, motions to strike and amendments to bills and answers.

Former §11-5-47 authorized an agreement between parties for additional time to answer or demur, provided that a solicitor, once authorized, was authorized until written notice of termination of authority was given.

§ 11-5-49. Answer not required in certain cases.

In proceedings in matters testamentary and of administration, in minors’ business, and in cases of persons with an intellectual disability, persons with mental illness and persons of unsound mind, as provided for by law, no answer shall be required to any petition or application of any sort. Such a petition or application shall not be taken as confessed because of the lack of an answer, but every petition, application, or account shall be supported by the proper evidence and may be contested without an answer. All such proceedings shall be as summary, as the statutes authorizing and regulating them contemplate; however, when either of the parties having a controversy in court as to any of those several matters requires and the court sees proper, it may direct plenary proceedings by bill or petition, to which there shall be an answer on oath or affirmation. If an adult or sane party refuses to answer as to any matter alleged in the bill or petition and proper for the court to decide upon, the party refusing may be attached, fined, and imprisoned at the discretion of the court, and the matter set forth in the bill or petition shall be taken as confessed and a decree shall be made accordingly.

HISTORY: Codes, 1860, § 1863; 1892, § 523; 1906, § 574; Hemingway’s 1917, § 334; 1930, § 370; 1942, § 1281; Laws, 2008, ch. 442, § 4; Laws, 2010, ch. 476, § 4, eff from and after passage (approved Apr. 1, 2010.).

Amendment Notes —

The 2008 amendment substituted “persons with mental retardation, persons with mental illness” for “idiocy, lunacy” in the first sentence; inserted “shall” following “and a decree” near the end; and made minor stylistic changes throughout.

The 2010 amendment substituted “persons with an intellectual disability” for “persons with mental retardation” in the first sentence.

Cross References —

Preservation of summary proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Matters testamentary and of administration.

3. Minors’ business.

1. In general.

Under this section [Code 1942, § 1281] adherence to the strict rules of pleading is not required in proceedings in matters testamentary and of administration. Duling v. Duling's Estate, 211 Miss. 465, 52 So. 2d 39, 1951 Miss. LEXIS 378 (Miss. 1951).

Affirmative averments, in an answer, even though it be under oath, are not evidence and must be proved, aliunde the answer. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

In matters testamentary and of administration no answers under oath are required, whether waived or not. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

2. Matters testamentary and of administration.

Petitions, one by intestate’s widow claiming the proceeds of certain personalty sold by order of the court, and another by the intestate’s daughters praying that the property be established as part of the assets of the estate, were matters in the course of the administration of the estate and neither required any answer; accordingly, failure of intestate’s daughters to waive oaths to the widow’s answer to their petition, and her oath to it, should have had no weight in the chancellor’s adjudication of the issues. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

Although it appeared in a contest between residuary legatees, seeking to compel the inclusion of certain corporate stock in the assets of testatrix’s estate, and certain persons claiming such stock as being a gift inter vivos that the residuary legatee filed a pleading to the answer of the executor which was sworn to by positive oath containing a positive and unequivocal allegation that the stock in controversy was not assigned, transferred, conveyed or delivered to the alleged donee thereof during the lifetime of the testatrix, and the answer of the ultimate beneficiaries of the alleged gift in such pleading was also sworn to, the answers were entitled to be given only such weight and credit as in view of the interests of the parties making the same, and the other circumstances of the case, it might be fairly entitled to, since in matters testamentary and of administration no answers under oath were required, whether waived or not. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

Administrator petitioning for authority to sell land to pay debts had burden of proving that the land was such an asset of the estate as the court could order sold for that purpose. Robinson v. Martin, 103 Miss. 733, 60 So. 769, 1912 Miss. LEXIS 223 (Miss. 1912).

3. Minors’ business.

The court is under the duty to see that the interest of the minor is properly presented, and has power to require any amendment or specific proceeding to be filed as it may deem necessary for the ascertainment of the truth. Dorsey v. Murphy, 188 Miss. 291, 194 So. 603, 1940 Miss. LEXIS 29 (Miss. 1940).

In inquiring into accounts of guardians, the court is not controlled by strict technical rules; and it should inquire into the matter and look after the interest of the minor even though that interest is not set forth with technical precision in the pleading. Dorsey v. Murphy, 188 Miss. 291, 194 So. 603, 1940 Miss. LEXIS 29 (Miss. 1940).

RESEARCH REFERENCES

ALR.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

What amounts to “appearance” under statute or rule requiring notice, to party who has “appeared,” of intention to take default judgment. 73 A.L.R.3d 1250.

Am. Jur.

27A Am. Jur. 2d, Equity § 121.

61A Am. Jur. 2d, Pleading §§ 108, 110- 112, 114.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue-Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

§ 11-5-51. Answer or demurrer may be filed where answer not required.

Where an answer is not necessary in the matters mentioned in Section 11-5-49, anyone desiring to contest any petition or application may file an answer, or may demur to any petition, and in that way test its sufficiency.

HISTORY: Codes, 1880, § 1864; 1892, § 524; 1906, § 575; Hemingway’s 1917, § 335; 1930, § 371; 1942, § 1282.

Cross References —

Construction of the term “demurrer”, as well as other terms, when used in a statute, see Miss. R. Civ. P. 81.

Filing of pleadings before presentation, see Miss. Uniform Chancery Court Rule 2.02.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 121, 122.

61A Am. Jur. 2d, Pleading §§ 187- 191, 208- 268.

§§ 11-5-53 through 11-5-73. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-5-53. [Codes, 1857, ch. 62, art. 49; 1871, § 1028; 1880, § 1881; 1892, § 542; 1906, § 593; Hemingway’s 1917, § 353; 1930, § 391; 1942, § 1302]

§11-5-55. [Codes, 1880, § 1885; 1892, § 546; 1906, § 597; Hemingway’s 1917, § 357; 1930, § 392; 1942, § 1303]

§11-5-57. [Codes, 1880, § 1882; 1892, § 543; 1906, § 594; Hemingway’s 1917, § 354; 1930, § 393; 1942, § 1304]

§11-5-59. [Codes, 1880, § 1883; 1892, § 544; 1906, § 595; Hemingway’s 1917, § 355; 1930, § 394; 1942, § 1305; Laws, 1924, ch. 151]

§11-5-61. [Codes, 1880, § 1884; 1892, § 545; 1906, § 596; Hemingway’s 1917, § 356; 1930, § 395; 1942, § 1306]

§11-5-63. [Codes, 1880, §§ 1886, 1887; 1892, § 547; 1906, § 598; Hemingway’s 1917, § 358; 1930, § 396; 1942, § 1307]

§11-5-65. [Codes, 1880, § 1888; 1892, § 548; 1906, § 599; Hemingway’s 1917, § 359; 1930, § 397; 1942, § 1308]

§11-5-67. [Codes, 1930, § 399; 1942, § 1310; Laws, 1924, ch. 151; Laws, 1950, ch. 341, §§ 1-3]

§11-5-69. [Codes, 1880, §§ 1950, 1951; 1892, § 1764; 1906, § 1941; Hemingway’s 1917, § 1601; 1930, § 400; 1942, § 1311; Laws, 1904, ch. 148; Laws, 1916, ch. 220]

§11-5-71. [Codes, 1942, § 1312; Laws, 1938, ch. 265]

§11-5-73. [Codes, 1880, § 1895; 1892, § 555; 1906, § 606; Hemingway’s 1917, § 366; 1930, § 401; 1942, § 1313]

Editor’s Notes —

Former §11-5-53 provided that amendments to pleadings and proceedings would be allowed on liberal terms.

Former §11-5-55 authorized a complainant to file an amended bill to make new parties in vacation, without leave of court.

Former §11-5-57 specified when a complainant could amend his bill without leave of the court.

Former §11-5-59 specified the amount of time provided to answer an amended bill or petition.

Former §11-5-61 specified how amendments of bill and answers were to be made.

Former §11-5-63 related to demurrer for multifariousness.

Former §11-5-65 provided that an objection for misjoinder of parties taken at the hearing could not be considered, and directed the court to decree upon the merits.

Former §11-5-67 specified when causes were triable.

Former §11-5-69 specified the methods of adducing testimony and examining witnesses.

Former §11-5-71 authorized the defendant to introduce evidence even though defendant’s motion to exclude complainant’s evidence was overruled.

Former §11-5-73 related to bills of exceptions.

§ 11-5-75. Creditors may attack fraudulent conveyances.

The chancery court shall have jurisdiction of causes of action filed under the Uniform Fraudulent Transfer Act. Upon such a complaint, a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for receivers, in same manner as if the creditor had recovered judgment and had execution returned “no property found.” The creditor in such case shall have a lien upon the property described therein from the filing of his complaint, except as against bona fide purchasers before the service of process upon the defendant in the complaint.

HISTORY: Codes, 1880, §§ 1843, 1844, 1845; 1892, § 503; 1906, § 553; Hemingway’s 1917, § 1313; 1930, § 407; 1942, § 1327; Laws, 1898, ch. 64; Laws, 2006, ch. 371, § 12, eff from and after July 1, 2006.

Amendment Notes —

The 2006 amendment, in the first sentence, substituted “causes of action filed under the Uniform Fraudulent Transfer Act” for “bills exhibited by creditors who have not obtained judgments at law or having judgments, have not had executions returned unsatisfied whether their debts be due or not to set aside fraudulent conveyances of property or other devices resorted to for the purpose of hindering delaying or defrauding creditors; and may subject the property to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned ‘no property found’ ”; and substituted “complaint” for “bill” throughout the section.

Cross References —

Attachment in chancery against nonresident, absent or absconding debtors, see §11-31-1 et seq.

Fraudulent transfers and conveyances, see §§15-3-101 et seq.

JUDICIAL DECISIONS

1. In general.

2. Purpose.

3. Construction with other laws.

4. Jurisdiction.

5. Enforcement in Federal court.

6. Right and propriety of action.

7. Persons entitled to attack challenge, etc.

8. Transactions subject to challenge.

9. Pleading.

10. Proof.

11. Liens; priority of liens.

12. Rights of purchasers.

13. Effect of bankruptcy.

1. In general.

The deed of an insolvent corporation, or of a corporation rendered insolvent by reason of its execution, by which it undertook to convey substantially all of its assets to persons who were all of its officers, directors, and stockholders is void; for insiders cannot prefer themselves in payment of pre-existing debts and thus deprive other creditors of the corporation of their claims; and such creditors had a lien upon the assets of the corporation superior to that of a mortgagee which held a deed of trust executed by the corporation’s grantees as to all property not covered by prior deeds of trust executed by the corporation. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

A director of a corporation occupies a fiduciary position toward creditors, having a better knowledge of the condition of the company than have other creditors, and should not be permitted to use that position to benefit himself at their expense or to grant himself preferences or advantages in the payment of his claims over other creditors. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

A mortgagee with actual or imputed knowledge of a fraudulent transaction cannot defeat the claims of creditors. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

Where a client who was contesting a will devised land to the devisees’ grantee, which settled litigation, this was not a fraudulent conveyance as to the client’s attorneys who were employed under a contingent fee contract. Pollard v. Joseph, 210 Miss. 828, 50 So. 2d 546, 1951 Miss. LEXIS 319 (Miss. 1951).

In an attachment suit to establish a lien on realty for damages against nonresident for breach of warranty, chancellor’s decree that conveyance of the land from the defendant to his wife was fraudulent and void was reversed where the evidence disclosed that, although conveyance was originally made to defendant, the defendant’s wife had purchased the realty with her own personal funds. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

A husband, though insolvent, has a right to prefer his wife and to protect her interests by conveying his property to her, even though by so doing his other creditors are defeated of their rights and even though the conveyance is made on account of pendency of suits by other creditors against him, the only condition being that there must be existing between husband and wife a valid indebtedness equal to the fair value of the property conveyed. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

A conveyance made in good faith and for a valuable, though inadequate, consideration, the value of the property conveyed being substantially in excess of the consideration paid therefor, will be held in equity to be voluntary as to the grantor’s creditors to the extent of the value of the property in excess of the consideration paid therefor. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

2. Purpose.

The object of the statute is to prevent the necessity of a creditor resorting first to a court of law to recover a judgment, and then going into equity to secure its satisfaction; there is no reason why the court, having jurisdiction under the statute, should stop short of giving the parties all the relief which their case requires. Citizens' Mut. Ins. Co. v. Ligon, 59 Miss. 305, 1881 Miss. LEXIS 121 (Miss. 1881).

3. Construction with other laws.

An action to set aside a deed on certain property on the basis of fraud under Code §11-5-75 was not barred by a former action to place a lis pendens notice on the same property pursuant to Code §11-47-3, where not only were these two causes of action grounded in different statutes but they also involved entirely different classes of litigants, inasmuch as the lis pendens statute was enacted for those who claimed to rightfully own an interest in the property and the statute permitting an attack on fraudulent conveyances was devised for the protection of creditors who had no specific interest in the land. Dunaway v. W.H. Hopper & Associates, Inc., 422 So. 2d 749, 1982 Miss. LEXIS 2314 (Miss. 1982).

This section and those in the chapter on lis pendens relate to different classes of litigants. Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502, 1904 Miss. LEXIS 134 (Miss. 1904).

4. Jurisdiction.

The chancery court had jurisdiction of a creditor’s bill which sufficiently stated a cause of action under the section [Code 1942, § 1327], and the fact that the nulla bona return was not made within the time prescribed by statute did not divest the court of such jurisdiction. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

Jurisdiction of bills by creditors without judgment whose debts are due to set aside fraudulent conveyances and devices to hinder and delay creditors is expressly conferred by § 159 Const. 1890. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

5. Enforcement in Federal court.

The remedy imported by a former enactment of this statute (Code of 1880, §§ 1843, 1845), was unavailable in a Federal court by reason of the constitutional guaranty of the right to a jury trial on a claim cognizable at law. Scott v. Neely, 140 U.S. 106, 11 S. Ct. 712, 35 L. Ed. 358 (1891), but see Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693, 15 U.S.P.Q.2d (BNA) 1367 (1990); Cates v. Allen, 149 U.S. 451, 13 S. Ct. 883, 37 L. Ed. 804 (1893), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), criticized in In re Bonham, 33 Bankr. Ct. Dec. (CRR) 642 (Bankr. D. Alaska 1998).

6. Right and propriety of action.

Creditors may vacate attachments fraudulently sued out through collusion with the debtor, and subject the attached property, notwithstanding, by statute, they might intervene and contest the attachments at law. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

A judgment-creditor may sue in equity to remove obstructions to a fair sale of the debtor’s property liable to execution, though he has not exhausted his remedy at law. Jeffries v. Jeffries, 66 Miss. 216, 5 So. 112, 1888 Miss. LEXIS 92 (Miss. 1888).

Notwithstanding the pendency of an action at law for the debt, a bill may be maintained to subject property fraudulently conveyed. Anderson v. Newman, 60 Miss. 532, 1882 Miss. LEXIS 93 (Miss. 1882).

7. Persons entitled to attack challenge, etc.

Simple contract creditors without judgment have no standing in the U. S. District Court on bill to set aside a fraudulent conveyance. Cates v. Allen, 149 U.S. 451, 13 S. Ct. 883, 37 L. Ed. 804 (1893), superseded by statute on other grounds as stated in Kunkel v. Topmaster Int’l, Inc., 906 F.2d 693 (1990), criticized in In re Bonham, 33 Bankr. Ct. Dec. (CRR) 642 (Bankr. D. Alaska 1998).

A tort claimant may maintain an action to set aside a conveyance as in fraud of his rights as a creditor without first obtaining a judgment for damages. Allred v. Nesmith, 245 Miss. 376, 149 So. 2d 29, 1963 Miss. LEXIS 525 (Miss. 1963).

Both antecedent and subsequent creditors of wife may attack her verbal transfer of store and stock of goods to her husband. McCabe v. Guido, 116 Miss. 858, 77 So. 801, 1917 Miss. LEXIS 363 (Miss. 1917).

A trustee in bankruptcy as the representative of the creditors may maintain a suit in equity to set aside fraudulent deeds made by the bankrupt and subject the property conveyed to his debts. Thompson v. First Nat'l Bank, 84 Miss. 54, 36 So. 65, 1904 Miss. LEXIS 4 (Miss. 1904).

Property in the possession of voluntary grantees of a surety on a guardian’s bond may be subjected by the wards of the guardian. Patty v. Williams, 71 Miss. 837, 15 So. 43, 1894 Miss. LEXIS 38 (Miss. 1894).

Prior to act of January 26, 1898, only a creditor whose debt was due could invoke the remedy. Browne v. Hernsheim, 71 Miss. 574, 14 So. 36, 1893 Miss. LEXIS 120 (Miss. 1893).

8. Transactions subject to challenge.

Where a contractor misstated facts in a financial statement to a bonding company and where he was notified that claims had been filed with the bonding company, the contractor conveyed his one-half interest in the homestead and stock to wife without consideration, the conveyance was fraudulent and should be set aside at the request of the creditors of the contractor. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

A creditor’s bill attacking a fraudulent conveyance should not be dismissed because the land is so defectively described in the alleged fraudulent deed as to render it void upon its face, inasmuch as between the grantee and the grantor it was valid in so far as it conferred upon the grantor the right in equity to have it reformed. This equity the creditor is entitled to have cancelled. Levy v. Royston, 84 Miss. 15, 36 So. 69, 1904 Miss. LEXIS 6 (Miss. 1904).

Where in such a suit, after the court had announced its opinion that the deed was void from defective description, but before final decree was entered, the debtor executed a second deed perfecting the description, the cause on complainant’s application should be remanded to the rules to enable him to file a supplemental bill assailing the second deed. Levy v. Royston, 84 Miss. 15, 36 So. 69, 1904 Miss. LEXIS 6 (Miss. 1904).

A writ of seizure in favor of the vendor of personal property cannot be enforced against property in the hands of an assignee or receiver appointed in a suit under the statute. Frank v. Robinson, 65 Miss. 162, 3 So. 253, 1887 Miss. LEXIS 28 (Miss. 1887).

9. Pleading.

Averment of insolvency held sufficient. Ogden v. Amite County Bank, 139 Miss. 875, 104 So. 289, 1925 Miss. LEXIS 163 (Miss. 1925).

Bill to set aside sale under deed of trust for fraud is demurrable for failing to state facts constituting fraud. Weir v. Jones, 84 Miss. 602, 36 So. 533, 1904 Miss. LEXIS 63 (Miss. 1904).

A bill filed under the statute need not show that the defendant debtor is insolvent, nor that complainant cannot obtain satisfaction of his demand without resorting to the property in suit. Citizens' Bank v. Buddig, 65 Miss. 284, 4 So. 94, 1887 Miss. LEXIS 55 (Miss. 1887).

A cross-bill may be predicated on this statute. Heirmann & Kahn v. Stricklin, 60 Miss. 234, 1882 Miss. LEXIS 37 (Miss. 1882).

10. Proof.

Proof that consideration for conveyance of husband to wife of plantation was substantially less than value of the property, not including personal property conveyed, established prima facie case for setting aside deed as a fraud upon the rights of husband’s creditors, where conveyance made him insolvent. Mississippi Cottonseed Products Co. v. Phelps, 196 Miss. 252, 16 So. 2d 854, 1944 Miss. LEXIS 184 (Miss. 1944).

11. Liens; priority of liens.

Since a taxpayer who had made a fraudulent conveyance to his wife before federal tax liens arose, had no interest in such property, the federal government acquired no lien on the property but only a right to set the fraudulent conveyance aside, and therefore a creditor of the taxpayer which filed a suit to set aside the fraudulent conveyance a year before the federal lien was asserted, was entitled to priority. United States v. Fidelity & Deposit Co., 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

Where the federal government took no action to assert a tax lien until after a bonding company started suit to have the fraudulent conveyance set aside, the bonding company had a prior lien. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

Creditor not given notice of sale required by bulk sales law may by statutory proceeding acquire lien against purchaser with which other creditors do not share. Kline v. Sims, 149 Miss. 154, 114 So. 871, 1927 Miss. LEXIS 104 (Miss. 1927).

Attacking creditor has statutory lien on property, and right to foreclosure thereof in same proceeding in which established. Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681, 1924 Miss. LEXIS 26 (Miss. 1924).

Where a bill is handed to the clerk and marked “filed” by him, but immediately carried away by the solicitor who stated that he did not wish process issued, there has been no such “filing” as will give him priority of lien over another creditor who, before the return of the bill and issuance of process, has filed a like bill and had process issued thereon. Meridian Nat'l Bank v. Hoyt & Bros. Co., 74 Miss. 221, 21 So. 12, 1896 Miss. LEXIS 142 (Miss. 1896).

A creditor attacking fraudulent attachments of his debtor’s property does not acquire a lien superior to other attachments, the validity of which is not attacked and which were levied before the filing of his bill. Levy v. Marx, 18 So. 575 (Miss. 1895).

12. Rights of purchasers.

A bank was not a bona fide, innocent purchaser for value without notice under a subsequent deed of trust from a corporation’s officers-directors-stockholders, and was not entitled to priority over rights of the payees of the corporation’s notes, as to realty which had not been included in a prior deed of trust from the corporation to the bank but which was attempted to be conveyed by the corporation to its officers-directors-stockholders, where the bank, with knowledge of the corporation’s indebtedness to the payees for stock purchased back by the corporation from the payees, encouraged the conveyance and execution of the subsequent deed of trust. Cooper v. Mississippi Land Co., 220 So. 2d 302, 1969 Miss. LEXIS 1451 (Miss. 1969).

Purchaser of goods held not entitled to have amount paid certain of seller’s creditors apportioned pro rata, with creditor not given notice, and instituting proceedings under the bulk-sales law. Kline v. Sims, 149 Miss. 154, 114 So. 871, 1927 Miss. LEXIS 104 (Miss. 1927).

13. Effect of bankruptcy.

The lien of a judgment in a suit to set aside conveyances as fraudulent is not affected by defendant’s adjudication in bankruptcy subsequent to the filing of the suit more than four months before the bankruptcy proceeding, though prior to judgment. Davis v. Polk Financial Service, 242 Miss. 419, 135 So. 2d 175, 1961 Miss. LEXIS 578 (Miss. 1961).

RESEARCH REFERENCES

ALR.

Assumption of mortgage as consideration for conveyance attacked as in fraud of creditors. 6 A.L.R.2d 270.

Necessary party defendant to action to set aside conveyance in fraud of creditors. 24 A.L.R.2d 395.

Right of creditors who attack as fraudulent a conveyance by third person to debtor’s spouse. 35 A.L.R.2d 8.

Venue of action to set aside as fraudulent conveyance of real property. 37 A.L.R.2d 568.

Accountability and rentability for rents and profits of grantee of fraudulently conveyed realty. 60 A.L.R.2d 593.

Right of tort claimant, prior to judgment, to attack transfer as fraudulent. 73 A.L.R.2d 749.

Right of creditor to recover damages for conspiracy to defraud him of claim. 11 A.L.R.4th 345.

Am. Jur.

37 Am. Jur. 2d, Fraudulent Conveyances and Transfers §§ 89 - 91, 108- 120.

12A Am. Jur. Pl & Pr Forms (Rev), Fraudulent Conveyances, Form 4.1 (Complaint, petition, or declaration – To vacate and cancel fraudulent conveyances-By judgment creditor).

12 Am. Jur. Pl & Pr Forms (Rev), Fraudulent Conveyances, Forms No. 1-101, 181-186.

25 Am. Jur. Proof of Facts 3d 591, Avoidance and Recovery of Fraudulent Transfers.

CJS.

37 C.J.S., Fraudulent Conveyances § 37.

§ 11-5-77. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 1934; 1892, § 591; 1906, § 642; Hemingway’s 1917, § 404; 1930, § 450; 1942, § 1370]

Editor’s Notes —

Former §11-5-77 authorized the court to compute amounts due or refer matter to clerk or master for computation in cases involving a mere computation of the sum due.

§ 11-5-79. Decree to operate as judgment of circuit court.

The decree of a court of chancery shall have the force, operation, and effect of a judgment at law in the circuit court.

HISTORY: Codes, 1857, ch. 62, art. 95; 1871, § 1263; 1880, § 1953; 1892, § 594; 1906, § 644; Hemingway’s 1917, § 406; 1930, § 453; 1942, § 1373.

JUDICIAL DECISIONS

1. In general.

A chancellor may make his decrees dependent upon the performance of certain conditions which may be waived only with the consent and approval of the chancellor who issued the decree, and such a decree is without force until the conditions have been performed. Twilley v. McLain, 233 So. 2d 794, 1970 Miss. LEXIS 1675 (Miss. 1970).

Lien under alimony decree cannot arise, if at all, until default in payment of installments. Harris v. Worsham, 164 Miss. 74, 143 So. 851, 1932 Miss. LEXIS 224 (Miss. 1932).

Where injunction to restrain execution on money decree was dissolved, execution could issue against sureties on injunction bond for amount of decree. Russ v. Stockstill, 155 Miss. 368, 124 So. 359, 1929 Miss. LEXIS 290 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect. 91 A.L.R.3d 1170.

§ 11-5-81. Fieri facias or garnishment on decrees for money.

Whenever the court shall render an order, judgment, or decree for the payment of money against any executor, administrator, or guardian, or any other party litigant therein, a compliance with such order, judgment or decree may be enforced by process of fieri facias or garnishment.

HISTORY: Codes, 1880, § 1957; 1892, § 598; 1906, § 648; Hemingway’s 1917, § 410; 1930, § 454; 1942, § 1374.

Cross References —

Effect of final decree and partition proceedings, see §11-21-35.

Enforcement of decree by garnishment, see §§11-35-1 et seq.

Interest on judgments and decrees, see §75-17-7.

Effect of surety paying a decree, see §87-5-9.

Procedure for enforcement of judgments, see Miss. R. Civ. P. 69.

JUDICIAL DECISIONS

1. Remedies.

In a marital dissolution action, an order restricting the wife’s right to pursue enforcement of a judgment against the husband was rendered void because the order operated as a violation of the wife’s rights as set forth in the statute; the chancellor did not have the authority to restrict the wife’s rights to seek satisfaction of the judgment in the manner reflected in the statute. Jenkins v. Jenkins, 60 So.3d 198, 2011 Miss. App. LEXIS 180 (Miss. Ct. App. 2011).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 140- 156.

30 Am. Jur. 2d (Rev), Executions §§ 70, 71, 399.

§ 11-5-83. Sheriff to execute decrees; clerk to issue process.

Decrees, where a master or special commissioner is not appointed to execute them, shall be executed by the sheriff; and the clerk shall issue all writs of fieri facias, habere facias possessionem, or other final process, according to the nature of the case, directed to the sheriff, and returnable to the next term of the court or at such other time as in a given case may be prescribed.

HISTORY: Codes, 1857, ch. 62, art. 98; 1871, § 1266; 1880, § 1956; 1892, § 597; 1906, § 647; Hemingway’s 1917, § 409; 1930, § 455; 1942, § 1375.

Cross References —

Method of issuing executions, see §§13-3-111 through13-3-121.

Method for levying executions, see §§13-3-123 et seq.

Duty of sheriff to execute decrees, see §19-25-35.

Conveyances by masters, commissioners, or sheriffs, see §§89-1-27,89-1-67.

Form of conveyance by sheriff, see §89-1-65.

Procedure for enforcement of judgments, see Miss. R. Civ. P. 69.

Sheriff’s courtroom duties, see Miss. Uniform Chancery Court Rule 1.03.

JUDICIAL DECISIONS

1. In general.

On final decree confirming sale in suit for partition of land, writ of assistance, which is equivalent to writ of habere facias possessionem at law, can issue without process on defendant divested of all interest in land by the final decree. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

The statute embraces, and authorizes the issuance of, a writ of assistance. Griswold v. Simmons, 50 Miss. 123, 1874 Miss. LEXIS 31 (Miss. 1874); Jones v. Hooper, 50 Miss. 510, 1874 Miss. LEXIS 85 (Miss. 1874).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 156.

§ 11-5-85. Decree to operate as a conveyance.

When a decree shall be made for a conveyance, release or acquittance, or other writing, and the party against whom the decree is made shall not comply therewith, then such decree shall be considered and taken in all courts of law and equity to have the same operation and effect, and shall be as available, as if the conveyance, release, or acquittance, or other writing had been executed in conformity to the decree; or the court may appoint a commissioner to execute such writing, which shall have the same effect as if executed by the party.

HISTORY: Codes, 1857, ch. 62, art. 96; 1880, § 1954; 1892, § 595; 1906, § 645; Hemingway’s 1917, § 407; 1930, § 456; 1942, § 1376.

Cross References —

Prerequisites of conveyance of land, see §§89-1-3 et seq.

Court’s authority to enter judgment by divesting title of any party and vesting it in others, see Miss. R. Civ. P. 70.

JUDICIAL DECISIONS

1. In general.

A commissioner may be appointed as provided hereunder to make a conveyance in accordance with the decree of the court in an action for specific performance providing that if it should be found that the vendors had been fully paid for real estate sold by them they should be directed to execute a warranty deed to the purchaser. Baker v. Hardy, 194 Miss. 662, 11 So. 2d 803, 1943 Miss. LEXIS 36 (Miss. 1943).

In action for confirmation of title to lands purchased on foreclosure of trust deed, where decree directed that title be confirmed in defendants, decree canceled plaintiff’s claim to the land. Cartee v. Blacketor, 179 Miss. 665, 176 So. 532, 1937 Miss. LEXIS 63 (Miss. 1937).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 140- 156.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§§ 11-5-87 and 11-5-89. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-5-87. [Codes, 1942, § 1390; Laws, 1934, ch. 252]

§11-5-89. [Codes, 1857, ch. 62, art. 36; 1871, § 1070; 1880, § 1859; 1892, § 519; 1906, § 570; Hemingway’s 1917, § 330; 1930, § 470; 1942, § 1391; Laws, 1962, ch. 287]

Editor’s Notes —

Former §11-5-87 authorized any party to request the court to separately state its findings of fact and conclusions of law.

Former §11-5-89 specified when decrees on publication only were final.

§ 11-5-91. Reopening of judgment rendered on publication only.

A defendant against whom a judgment has been rendered on publication only may request to reopen the judgment pursuant to the procedures provided for in the Mississippi Rules of Civil Procedure. The title to property sold to a purchaser, in good faith, in pursuance of a judgment, shall not be affected by reopening of the judgment.

HISTORY: Codes, 1857, ch. 62, art. 37; 1871, § 1071; 1880, § 1860; 1892, § 520; 1906, § 571; Hemingway’s 1917, § 331; 1930, § 471; 1942, § 1392; Laws, 1991, ch. 573, § 18, eff from and after July 1, 1991.

Cross References —

Rule relative to relief from judgment or order, see Miss. R. Civ. P. 60.

JUDICIAL DECISIONS

1. In general.

2. Parties entitled to rehearing.

3. Other remedy.

1. In general.

A mere statement that petitioner has an interest or claim is not sufficient to reopen a case under this section. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

Reopening of proceedings to confirm title should be done only where the right clearly appears in the petition. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

The purpose of the legislature in requiring a petition to reopen is to confine reopening to the discretion of the chancellor, who, in the exercise thereof, must have sufficient facts to guide him. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

After the petition for rehearing is allowed, the suit is a pending one, and the complainant may dismiss it. Belcher v. Wilkerson, 54 Miss. 677, 1877 Miss. LEXIS 78 (Miss. 1877).

2. Parties entitled to rehearing.

A nonresident, who was not a named defendant in proceedings to confirm a tax title, must in his petition to set aside such proceedings show the court, by averments, the facts with reference to his status as one having or claiming an interest in the land. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

In an action to reopen proceedings confirming tax title after final decree therein, a nonresident who was not a named defendant in such proceedings cannot maintain the action by a mere allegation that he claimed the undivided one-fourth equitable interest in the land. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

A decree pro confesso taken against nonresident defendants who failed to answer by publication as summoned lost its finality, and the cause in which it was rendered again became a pending cause when the defendants within two years after rendition of the decree applied to the court by which it was rendered for a rehearing. Henderson v. Odom, 198 Miss. 208, 22 So. 2d 159, 1945 Miss. LEXIS 186 (Miss. 1945).

3. Other remedy.

Although nonresident defendants, against whom a decree pro confesso was taken upon their failure to answer by publication and summons, have right to apply to the court rendering the decree for a rehearing, they also have the right to treat the decree as final and to appeal therefrom in order to avoid danger under this section [Code 1942, § 1392] that the property might be sold to a purchaser in good faith pursuant to the decree. Henderson v. Odom, 198 Miss. 208, 22 So. 2d 159, 1945 Miss. LEXIS 186 (Miss. 1945).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 157.

§ 11-5-93. Sales of realty under decrees.

Every sale of real estate ordered by a decree of any court of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice as is required in case of sales of land under execution at law. The person making the sale, if made on credit, shall take bond, with sufficient security, in double the amount of the purchase money, payable to the parties entitled to receive the same under the decree, or to such persons as the court may direct, conditioned for the payment of the purchase money, with interest at the rate borne by the decree, to the time when the same, as directed by the decree, shall fall due. Such bond shall be returned and filed in the clerk’s office, and if not paid at maturity, shall have the force and effect of a judgment; and the clerk shall issue execution thereon. If any of the obligees be dead, the execution shall be in favor of the survivors and the representatives of those deceased. And in all decrees for the sale of real estate, the chancellor may fix a sum to be paid on sale, and if the sale be not confirmed, the sum so paid shall be returned to the bidder. If the purchaser fail to pay the amount of his bid or to comply with the decree, the amount advanced shall go to the party entitled to the purchase money, and the land shall be resold.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 2 (33); 1857, ch. 62, art. 59; 1871, § 1038; 1880, § 1959; 1892, § 599; 1906, § 649; Hemingway’s 1917, § 411; 1930, § 457; 1942, § 1377.

Cross References —

Constitutional direction for sale of lands under decree of court, see Miss. Const. Art. 4, § 111.

Sale of lands in partition proceeding, see §11-21-11.

Stay of execution by bond, see §11-51-59.

Procedure for making sales under execution, see §§13-3-161 et seq.

Limitation of actions for property sold by order of court, see §15-1-37.

Conveyances for lands sold under decree of court, see §89-1-27.

Procedure for selling lands under mortgages and deeds of trust, see §89-1-55.

Provision for suspension of inconsistent laws regarding foreclosure of mortgaged property in certain emergency situations, see §89-1-319.

Sale of goods seized under distress, see §89-7-69.

Sale of decedent’s property by executors and administrators, see §§91-7-175 et seq.

JUDICIAL DECISIONS

1. In general.

2. Notice.

3. Consideration.

1. In general.

A partition sale of real estate conformed to the requirements of §§11-5-93 and11-5-95, and did not violate either the order or legal notice, which asserted that the sale would be at the south front door of the courthouse, regardless of whether the sale was conducted inside or outside the front door. McCormick v. McCormick, 449 So. 2d 1209, 1984 Miss. LEXIS 1711 (Miss. 1984).

Decree ordering correction of description of land in deed of trust being foreclosed held not erroneous as eliminating from deed of trust description of other property. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

A purchaser cannot be put in possession until the sale has been reported and confirmed. Adler v. Meyer, 73 Miss. 863, 19 So. 893, 1896 Miss. LEXIS 209 (Miss. 1896).

The presumption of validity which the law attaches to ancient deeds will aid an administrator’s or executor’s sale. Stevenson's Heirs v. McReary, 20 Miss. 9, 1849 Miss. LEXIS 1 (Miss. 1849).

2. Notice.

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).

In an action by a homeowners’ association to enforce a lien on defendant’s property after defendant had failed to pay an annual assessment to the association for maintenance of common areas, the chancery court properly ruled that the assessment was a covenant running with the land and that defendant was liable, despite defendant’s contentions that the action was barred by the statute of frauds (§15-3-1). Furthermore, the chancery court’s decree was enforceable under this section, even though it failed to fix the time and terms of the sale of defendant’s property. William W. Bond, Jr. & Associates, Inc. v. Lake O'The Hills Maintenance Asso., 381 So. 2d 1043, 1980 Miss. LEXIS 1919 (Miss. 1980).

This section governs in the matter of sales and notice thereof under the decrees. Worthy v. Graham, 246 Miss. 358, 149 So. 2d 469, 1963 Miss. LEXIS 449 (Miss. 1963).

Failure of commissioner appointed to carry out chancellor’s decree granting foreclosure of mortgage to name one of mortgagors in notice of sale held not to invalidate sale, since all interested parties were in court and were expected to follow proceedings and ascertain sale day fixed in order. Jones v. Spearman, 174 Miss. 781, 165 So. 294, 1936 Miss. LEXIS 196 (Miss. 1936).

Sale of land must accord with order as to place and notice. Howard v. Jayne, 124 Miss. 65, 86 So. 752, 1920 Miss. LEXIS 497 (Miss. 1920).

Failure to give the prescribed notice will not render the sale void. Bland v. Muncaster, 24 Miss. 62, 1852 Miss. LEXIS 8 (Miss. 1852); Hanks v. Neal, 44 Miss. 212, 1870 Miss. LEXIS 102 (Miss. 1870).

3. Consideration.

Evidence held to show that upset price for mortgaged premises fixed by court in foreclosure suit was reasonable, and that higher price could not be had on resale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

That property sold under foreclosure suit might sell for much more at later time will not afford ground in equity for setting aside sale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

On collateral attack grossly inadequate consideration will not be held to invalidate a judicial sale of land made in unsettled and troubled times, and land was encumbered with life estate postponing purchaser’s occupancy 35 years. Ladd v. Craig, 94 Miss. 659, 47 So. 777, 1909 Miss. LEXIS 326 (Miss. 1909).

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.

Propriety of setting minimum or “upset price” for sale of property at judicial foreclosure. 4 A.L.R.5th 693.

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 8- 13.

CJS.

50A C.J.S., Judicial Sales §§ 30-41.

§ 11-5-95. Court may fix terms of sale.

All property may be sold on such terms and at such time and place as the court may direct.

HISTORY: Codes, 1880, § 2044; 1892, § 601; 1906, § 651; Hemingway’s 1917, § 413; 1930, § 458; 1942, § 1378.

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 partition sale of real estate conformed to the requirements of §§11-5-93 and11-5-95, and did not violate either the order or legal notice, which asserted that the sale would be at the south front door of the courthouse, regardless of whether the sale was conducted inside or outside the front door. McCormick v. McCormick, 449 So. 2d 1209, 1984 Miss. LEXIS 1711 (Miss. 1984).

Failure of commissioner appointed to carry out chancellor’s decree granting foreclosure of mortgage to name one of mortgagors in notice of sale held not to invalidate sale, since all interested parties were in court and were expected to follow proceedings and ascertain sale day fixed in order. Jones v. Spearman, 174 Miss. 781, 165 So. 294, 1936 Miss. LEXIS 196 (Miss. 1936).

That property sold under foreclosure suit might sell for much more at later time will not afford ground for setting aside sale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

Evidence held to show that price fixed by court in foreclosure suit was reasonable, and that higher price could not be had on resale. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

Decree ordering correction of description of land in deed of trust being foreclosed held not erroneous as eliminating from deed of trust other property. Standard Lumber & Mfg. Co. v. Deposit Guaranty Bank & Trust Co., 169 Miss. 120, 152 So. 639, 1934 Miss. LEXIS 14 (Miss. 1934).

This section, as applicable to sale of property by a receiver, does not require notice of sale to be given to creditors. United States Fidelity & Guaranty Co. v. McCain, 136 Miss. 30, 136 Miss. 306, 101 So. 197, 1924 Miss. LEXIS 113 (Miss. 1924).

Where decree authorizes administrator to name the place of sale, confirmation makes a judicial sale that of the court, and the purchaser thereunder is entitled to the full benefit of his contract which will be enforced for and against him. Ladd v. Craig, 94 Miss. 659, 47 So. 777, 1909 Miss. LEXIS 326 (Miss. 1909).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 15, 24.

CJS.

50A C.J.S., Judicial Sales §§ 25-27.

§ 11-5-97. Lien on land sold on credit.

All land sold under decree of the chancery court shall be held liable and subject to a lien for the unpaid purchase money therefor as if a mortgage had been executed by the purchaser and duly recorded; and said lien shall exist until actual payment of the purchase money, or until, by order of the court or chancellor, the same shall be discharged.

HISTORY: Codes, 1871, § 1150; 1880, § 2048; 1892, § 602; 1906, § 652; Hemingway’s 1917, § 414; 1930, § 459; 1942, § 1379.

Cross References —

Priority of mortgage for purchase money of land, see §89-1-45.

JUDICIAL DECISIONS

1. In general.

An administrator or executor who charges himself with the receipt of the money although sale was on credit, and final settlement is confirmed by probate court, the land is discharged of the lien, and he is estopped to deny the payment; and the heirs are estopped if they do not object thereto on final settlement. Lambeth v. Elder, 44 Miss. 80, 1870 Miss. LEXIS 86 (Miss. 1870).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 29- 31, 49, 58, 63–65.

CJS.

50A C.J.S., Judicial Sales §§ 93, 109-124, 130-136.

§ 11-5-99. Hour and adjournment of sales.

A sale of real estate shall not commence before the hour of eleven o’clock on the day appointed, nor continue longer than four o’clock of the same day; but if the time be insufficient to complete the sale, it may be continued from day to day until completed, by giving public notice to the company present at the conclusion of each day’s sale; and such sale on the succeeding day shall commence and end as directed for the first day.

HISTORY: Codes, 1871, § 1152; 1880, § 2049; 1892, § 604; 1906, § 654; Hemingway’s 1917, § 416; 1930, § 460; 1942, § 1380.

Cross References —

Time and method of making sales under execution, see §13-3-169.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 9.

CJS.

50A C.J.S., Judicial Sales §§ 51, 55.

§ 11-5-101. Person making sale not to purchase.

In no instance shall the person who makes the sale become, either directly or indirectly, the purchaser at a sale made by him.

HISTORY: Codes, 1892, § 603; 1906, § 653; Hemingway’s 1917, § 415; 1930, § 461; 1942, § 1381.

JUDICIAL DECISIONS

1. Purchase by mortgagee’s affiliate.

Because a second mortgagee lawfully foreclosed the mortgagor’s property under Miss. Code Ann. §89-1-55 and paid off a primary loan and there was no legal prohibition under Miss. Code Ann. §§11-5-101 and89-1-63 for the mortgagee’s affiliate to purchase the property at foreclosure, any rights of the mortgagor in the property were extinguished by the foreclosure sale. Pepper v. Homesales, Inc., 2009 U.S. Dist. LEXIS 16692 (S.D. Miss. Mar. 3, 2009).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 18.

CJS.

50A C.J.S., Judicial Sales §§ 28, 29.

§ 11-5-103. Report of sale of land.

And when the sale has been completed, the person making the same shall make report thereof in writing to the court, stating the time and place of sale, the name of the purchaser, and the amount of purchase money, and shall satisfy the court that the directions prescribed in the decree of sale and the law have been followed; and thereupon the court shall proceed to make a decree confirming the sale, unless good reason be shown to the contrary. And the court shall order the person who made the sale to make a conveyance to the purchaser of the land so sold; but if the sale be not reported to the following term, the court may compel the making of a proper report at a subsequent term, and may then confirm or set aside the same; and the person failing to make such report in proper time may be fined, as for a contempt, not exceeding one hundred dollars.

HISTORY: Codes, 1871, § 1151; 1880, § 2050; 1892, § 605; 1906, § 655; Hemingway’s 1917, § 417; 1930, § 462; 1942, § 1382.

Cross References —

For rules governing the reports of masters and court-ordered conveyances of realty, see Miss. R. Civ. P. 53, 70.

JUDICIAL DECISIONS

1. In general.

Where price at judicial sale is grossly inadequate chancellor may order resale. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

Court properly directed resale on tenant failing to pay amount as against objection of purchaser at the sale. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

A purchaser cannot be put in possession until the sale has been reported and confirmed. Adler v. Meyer, 73 Miss. 863, 19 So. 893, 1896 Miss. LEXIS 209 (Miss. 1896).

Confirmation of a sale, reported at a term subsequent to that which next followed the sale, without notice, is not void. Johnson v. Cooper, 56 Miss. 608, 1879 Miss. LEXIS 174 (Miss. 1879).

It is not an objection to an administrator’s sale that he was ordered by the decree to sell and report to a certain term of court, and that he did not sell until after that time. Yerger v. Ferguson, 55 Miss. 190, 1877 Miss. LEXIS 122 (Miss. 1877).

If the decree confirming the sale recite that notice of the sale was given, this is sufficient on appeal, though the notice do not appear of record. Yerger v. Ferguson, 55 Miss. 190, 1877 Miss. LEXIS 122 (Miss. 1877).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 45.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Forms 61-70.

CJS.

50A C.J.S., Judicial Sales §§ 64-68.

§ 11-5-105. On death of executor, or other person authorized, who shall sell or convey.

If the executor, administrator, guardian, master, or special commissioner who was ordered to make a sale or lease, shall die, resign, or be removed before doing it, such sale or lease may be made by the successor of such executor, administrator, guardian, master, or commissioner, or by any person appointed by the court or the chancellor in vacation to make it. In case of a death, resignation or removal of an executor, administrator, guardian, master, or commissioner, after making a sale, and before its report or confirmation, or before a conveyance of the title, in case of the sale of land, the court shall ascertain the facts, and, if satisfied that the sale ought to be confirmed, shall make a decree confirming it, and order a conveyance, if land was sold, to be made to the purchaser, either by the successor in the administration or guardianship of the person who made the sale, or by a master or commissioner appointed for that purpose; and such conveyance shall have the same effect to vest the title in the person to whom it is made, as if it had been made and delivered by the person who made the sale.

HISTORY: Codes, 1880, § 2051; 1892, § 606; 1906, § 656; Hemingway’s 1917, § 418; 1930, § 463; 1942, § 1383.

Cross References —

Sale of land by executors and administrators, see §§91-7-187 et seq.

Rules governing the reports of masters and court-ordered conveyances of realty, see Miss. R. Civ. P. 53, 70.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 41, 42.

CJS.

50A C.J.S., Judicial Sales §§ 109-113.

§ 11-5-107. Sales, leases, partitions, may be reported and confirmed in vacation; proceedings.

Reports of sales of lands or leases or of partition in kind, where there is no contest, may be made in vacation to the chancellor, and upon five days’ notice to the parties and the purchaser or lessee, or to the parties to the proceedings for partition in kind, of the time and place of hearing the application therefor, or upon such publication for any of the interested parties who may be nonresidents of this state, or who cannot be found upon diligent inquiry, as is required for nonresident or absent defendants in chancery, may be confirmed by him. But the said five days’ notice to parties and the purchaser, or lessee or to the parties defendant to the proceedings for partition in kind of the time and place of hearing application therefor, and also such publication for any of the interested parties who may be nonresidents of this state, and to persons who cannot be found upon diligent inquiry, may be dispensed with, provided the interlocutory decree ordering said sale or lease or partition in kind shall specifically designate a definite date and place for the hearing of such application to confirm said report of sale, or lease, or partition in kind before the chancellor in vacation, but said application to confirm shall not be heard earlier than five days after the report of such sale or lease, or partition in kind shall have been filed in the proper court with papers in the cause.

HISTORY: Codes, 1892, § 607; 1906, § 657; Hemingway’s 1917, § 419; 1930, § 464; 1942, § 1384; Laws, 1900, ch. 95; Laws, 1922, ch. 228.

Cross References —

Decree of confirmation in partition proceedings, see §§11-21-35 et seq.

JUDICIAL DECISIONS

1. In general.

Under this statute authorizing private sales, where there is a private sale or lease upon terms disclosed to, or required by, the court, and thereby approved, the transaction is confirmed by the decree directing it. Such decree is not a mere “interlocutory decree ordering said sale or lease,” as expressed in this section, but a decree executed after petition and hearing, at which all the terms disclosed by tender of the conveyances are heard and considered and thereby confirmed. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Confirmation is not necessary of a private sale of mineral lease and royalty interests in realty belonging to minor wards, where such sale was made pursuant to court decree authorizing the same on terms disclosed in guardian’s petition, even assuming that such sale was a “sale of land” contemplated by Code 1942, § 1389, and notwithstanding that decree authorizing conveyance of royalty interest provided that the guardian should make due report to the chancellor for confirmation. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Chancellor without power to confirm in vacation a judicial sale where protest is filed on the ground of gross inadequacy of price. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 46, 47, 68, 69- 71.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Forms 83-91.

CJS.

50A C.J.S., Judicial Sales §§ 69-71.

§ 11-5-109. Bond to prevent confirmation.

The party who objects to a sale under a decree because of the inadequacy of the bid, or any person interested therein, may prevent the confirmation thereof by entering into a bond in a penalty equal to double the amount of the bid, with sufficient sureties, to be approved by the court or clerk, payable to the opposite party, conditioned to pay all costs of a resale, and that the property shall bring thereat an advance of not less than twenty per centum upon the bid, exclusive of the cost of resale.

HISTORY: Codes, 1892, § 600; 1906, § 650; Hemingway’s 1917, § 412; 1930, § 465; 1942, § 1385; Laws, 1884, p. 71.

JUDICIAL DECISIONS

1. In general.

2. Effect of failure to require bond.

1. In general.

Defects in bond to prevent confirmation of sale were cured by Code 1906 § 1022. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

One who procures a resale under the statute must be treated as starting the bidding on the resale at twenty per centum advance on the former sale. Mason v. Martin, 64 Miss. 572, 1 So. 756, 1886 Miss. LEXIS 111 (Miss. 1886).

The statute relates to the remedy. John Chaffe & Sons v. Aaron, 62 Miss. 29, 1884 Miss. LEXIS 10 (Miss. 1884).

2. Effect of failure to require bond.

Where three of four heirs conducted a sale of property which was to be auctioned to the hightest bidder for cash, and the fourth heir was the highest bidder, the State Supreme Court held that Miss. Code Ann. §11-5-109 did not apply and the fourth heir was not required to post a bond. Hataway v. Estate of Nicholls, 893 So. 2d 1054, 2005 Miss. LEXIS 109 (Miss. 2005).

Where the wife objected to the sale of the marital home to the husband’s brother and the home was subsequently foreclosed on and sold for less than the brother’s bid, the appellate court did not address the issue of whether the chancellor erred when he did not require a bond because there were no funds from which to address the shortfall from the original bid to the amount received for the property later. Curtis v. Curtis, 796 So. 2d 1044, 2001 Miss. App. LEXIS 396 (Miss. Ct. App. 2001).

RESEARCH REFERENCES

ALR.

Validity and effect under Federal Arbitration Act (9 U.S.C.S. §§ 1 et seq.) of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 159 A.L.R. Fed. 1.

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales §§ 67, 83.

15 Am. Jur. Pl & Pr Forms (Rev), Judicial Sales, Form 102.

CJS.

50A C.J.S., Judicial Sales § 118.

§ 11-5-111. Decree for balance after sale of property.

Upon the confirmation of the report of sale of any property, real or personal, under a decree for sale to satisfy a mortgage, deed of trust, or other lien on such property, if there be a balance due to the complainant, the court, upon motion, shall give a decree against the defendant for any such balance for which by the record of the case he may be personally liable, upon which decree execution may issue.

HISTORY: Codes, 1880, § 1935; 1892, § 592; 1906, § 643; Hemingway’s 1917, § 405; 1930, § 466; 1942, § 1386.

Cross References —

Procedure for selling lands under mortgages and deeds of trust, see §§89-1-55 et seq.

JUDICIAL DECISIONS

1. In general.

Mortgagee is entitled to deficiency judgment from debtor for balance due on indebtedness after proceeds of foreclosure sale are applied to debt unless mortgagee’s actions have been inequitable. OMP v. Security Pacific Business Finance, Inc., 716 F. Supp. 251, 1989 U.S. Dist. LEXIS 7344 (N.D. Miss. 1989).

Mortgagee seeking deficiency judgment has burden of proving entitlement under principles of equity; it must first be determined if mortgagee has endeavored to collect indebtedness out of land; then, it must be determined whether value of property satisfies debt of mortgagor or creates surplus. Lake Hillsdale Estates, Inc. v. Galloway, 473 So. 2d 461, 1985 Miss. LEXIS 2177 (Miss. 1985).

A written motion is entirely unnecessary under this section, and the absence thereof deprives a judgment debtor of no substantial right, as against the contention that this section is mandatory in its requirement that a motion in writing is jurisdictional in order to entitle a judgment creditor to a deficiency judgment upon the stated confirmation of the report of sale of any property under a deed of trust. Roebke v. Love, 186 Miss. 609, 191 So. 122, 1939 Miss. LEXIS 238 (Miss. 1939).

Complainant in trust deed foreclosure proceeding has option to take complete personal monetary decree in foreclosure decree or to take therein only decree adjudging amount due, declaring lien, and ordering sale, and obtain personal decree for balance due after sale. Edgewater Park Co. v. Standard Bond, etc., Co., 162 Miss. 684, 138 So. 811, 1932 Miss. LEXIS 114 (Miss. 1932).

On confirmation of sale on foreclosure court may render judgment for balance of claim; if motion for judgment for balance in lienholder’s suit made on day of confirmation, no notice required; limitation on deficiency judgment entered on confirmation of foreclosure sale runs from its entry. Continental Gin Co. v. Mathers, 132 Miss. 821, 96 So. 744, 1923 Miss. LEXIS 80 (Miss. 1923); Weir v. Field, 67 Miss. 292, 7 So. 355, 1889 Miss. LEXIS 92 (Miss. 1889).

In a suit to foreclose a mortgage on the land of a wife to secure the joint note of herself and husband, the note and mortgage being void as to her because of her insanity, a personal decree should be rendered against the husband. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

The right to move for a personal decree is not confined to the term at which the sale is confirmed, but may be exercised at any time before the decree becomes barred. Notice is unnecessary if the motion be made at the time of confirmation, but if made at a subsequent term it is necessary. Such decree may be obtained against the personal representative of a deceased debtor. Weir v. Field, 67 Miss. 292, 7 So. 355, 1889 Miss. LEXIS 92 (Miss. 1889).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 140- 156.

Law Reviews.

1979 Mississippi Supreme Court Review: Property. 50 Miss. L. J. 865, December 1979.

§ 11-5-113. Provisions applicable to all sales made by order or decree of the court.

All the provisions of this chapter on the subject of sales shall apply to all sales of real estate under any decree in the chancery court made in matters testamentary and of administration, minors’ business, cases of persons with an intellectual disability, persons with mental illness and persons of unsound mind, of partition, and all other matters.

HISTORY: Codes, 1857, ch. 62, art. 59; 1871, § 1038; 1880, § 1959; 1892, § 608; 1906, § 658; Hemingway’s 1917, § 420; 1930, § 467; 1942, § 1387; Laws, 2008, ch. 442, § 5; Laws, 2010, ch. 476, § 5, eff from and after passage (approved Apr. 1, 2010.).

Amendment Notes —

The 2008 amendment substituted “persons with mental retardation, persons with mental illness” for “idiocy and lunacy.”

The 2010 amendment substituted “persons with an intellectual disability” for “persons with mental retardation.”

Cross References —

Sales of real estate and partition proceedings, see §§11-21-27 et seq.

Sales of real estate in matters testamentary and of administration, see §§91-7-187 et seq.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 1.

CJS.

50A C.J.S., Judicial Sales §§ 1-6.

§ 11-5-115. Rights of infants saved.

When a decree shall be made for the sale or conveyance of the real estate of an infant, such decree shall be binding on the infant unless he shall, within one year after attaining the age of twenty-one years, show to the court good cause to the contrary; and it shall not be necessary to insert the saving in the decree, but the saving shall not extend to decrees for the sale of the property of deceased persons, authorizing sales by guardians, or enforcing deeds of trust or mortgages.

HISTORY: Codes, 1857, ch. 62, art. 97; 1871, § 1265; 1880, § 1955; 1892, § 596; 1906, § 646; Hemingway’s 1917, § 408; 1930, § 468; 1942, § 1388.

Cross References —

Definition of the term “infant,” see §1-3-21.

Limitations of personal actions of infants, see §15-1-59.

Validity of contracts made during infancy, see §15-3-11.

Infant’s title to property acquired by descent, see §91-1-31.

JUDICIAL DECISIONS

1. In general.

2. Character of sale as void or voidable.

3. Interest acquired under sale.

4. Impeachment of decree of sale.

5. —Time for impeachment.

6. —Right to rehearing or review.

7. Laches.

1. In general.

This section was not intended as a sword to prevent an infant from attacking a fraud perpetrated upon him. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

This section is not applicable in a suit to cancel deeds on the ground that they were procured by fraud. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

This section is substitute for ancient rule to insert such saving in decree, and has effect as though such right was actually reserved in decree. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

Duty of next friend to protect rights of ward throughout partition suit and to prevent confirmation of sale if prejudicial to ward’s rights. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

The court must make valuable elections for minor defendants, redeem their property from liens or tax sales, and see generally that their interests are fully protected. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

2. Character of sale as void or voidable.

Purchase by grandfather and next friend of minor was not void where the reasonable value of the land was paid, but was voidable at the minor’s election within the time allowed infant to exercise such right. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

3. Interest acquired under sale.

An absolute title cannot be acquired under a decree against an infant until the expiration of the year after his majority. The purchaser of the property should be made a party to the proceeding to vacate the decree. McLemore v. Chicago, S. L. & N. O. R. Co., 58 Miss. 514, 1880 Miss. LEXIS 151 (Miss. 1880).

4. Impeachment of decree of sale.

Minors within statutory period after arriving at majority held entitled to have partition sale at which their property was bought in under agreement set aside and property repartitioned. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

A decree rendered in an infant’s favor on a bill filed in his name by a next friend cannot, in the absence of fraud, be reopened by the infant. Johns v. Harper, 61 Miss. 142, 1883 Miss. LEXIS 87 (Miss. 1883).

An infant may by an original bill impeach a decree against him. Sledge v. Boone, 57 Miss. 222, 1879 Miss. LEXIS 49 (Miss. 1879); Enochs v. Harrelson, 57 Miss. 465, 1879 Miss. LEXIS 99 (Miss. 1879).

5. —Time for impeachment.

This section does not limit time infant may attack partition sale for bad faith of their next friend. Smith v. Strickland, 139 Miss. 1, 103 So. 782, 1925 Miss. LEXIS 117 (Miss. 1925).

If the infant wish to interpose a new defense, he must, in general, wait until he has become adult; but for special circumstances shown may obtain leave to make new defense during infancy; if the desire be to impeach the decree for fraud, collusion, or error, he may proceed by original bill during minority. McLemore v. Chicago, S. L. & N. O. R. Co., 58 Miss. 514, 1880 Miss. LEXIS 151 (Miss. 1880).

A party, within the year after his arriving at majority, may attack a decree rendered against him during infancy by averring matter aliunde the record. After the expiration of the year he stands on the same ground as if he had been adult when the decree was entered. Mayo v. Clancy, 57 Miss. 674, 1880 Miss. LEXIS 32 (Miss. 1880).

Where an improper decree has been made against an infant, it may be impeached by an original bill, and the infant need not wait until attaining full age, but may apply to open the decree as soon as he sees fit. Sledge v. Boone, 57 Miss. 222, 1879 Miss. LEXIS 49 (Miss. 1879).

6. —Right to rehearing or review.

This section grants the special privilege of a rehearing and that when a quondam infant comes within the one year period, the original case will then stand so far as he is concerned as though no decree had ever been made, and it becomes the duty of the court to hear the cause as though it had not been heard before. Box v. House, 212 Miss. 154, 54 So. 2d 218, 1951 Miss. LEXIS 437 (Miss. 1951).

Right to review adverse decree is available to minor affected whether he be complainant or defendant. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

An infant party decreed to hold land in trust is entitled of right to a rehearing if willing to assume all the consequences of his own suit. Hebron v. Kelly, 77 Miss. 48, 23 So. 641, 1899 Miss. LEXIS 33 (Miss. 1899).

The affirmance of the decree by the Supreme Court will not bar the application for a rehearing, and this is true though the infant prosecuted the appeal. Vaughn v. Hudson, 59 Miss. 421, 1882 Miss. LEXIS 129 (Miss. 1882).

7. Laches.

Apparent laches of minors should not operate to their prejudice. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

RESEARCH REFERENCES

CJS.

30A C.J.S., Equity §§ 48, 51, 52.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

§ 11-5-117. Private sales authorized.

  1. In addition to the law now in force authorizing the chancery court to decree the sale of land and personal property, the chancery court and the chancellor in vacation are authorized in all matters providing for a sale or lease of real and personal property, including matters testamentary and of administration, minors’ business, persons with mental illness, partition and receivers, to order or decree the sale or lease of real and personal property or any interest in the property, including timber, oil, gas and minerals, at private sale, under such terms and conditions as the chancellor may impose. If all of the terms of sale are made certain by the order or decree, a deed or lease executed in full compliance with the order or decree shall become immediately effective without further confirmation by the court or chancellor.
  2. This section shall not be construed to invalidate any proceedings previously done in conformity with this section.

HISTORY: Codes, 1930, § 469; 1942, § 1389; Laws, 1930, ch. 42; Laws, 1936, ch. 327; Laws, 1956, ch. 224, §§ 1-3; Laws, 2008, ch. 442, § 6, eff from and after July 1, 2008.

Amendment Notes —

The 2008 amendment divided the former single sentence in (1) into two sentences by substituting “impose. If all” for “impose; and if all”; in the first sentence, substituted “persons with mental illness” for “lunacy” and “interest in the property” for “interest therein”; in the second sentence, substituted “full compliance with the order or decree” for “full compliance therewith”; and in (2), substituted “proceedings done in conformity with this section” for “proceedings heretofore had in conformity herewith.”

Cross References —

Private sale of personal property by executors and administrators, see §91-7-177.

JUDICIAL DECISIONS

1. In general.

2. Setting sale aside.

1. In general.

The power conferred by this section does not encompass a lease with option to purchase at a price to be determined by privately appointed appraisers, on which rent payments are to be credited. Thompson Funeral Home, Inc. v. Thompson, 249 Miss. 472, 162 So. 2d 874, 1964 Miss. LEXIS 408 (Miss. 1964).

Under this section, where there is a private sale or lease upon terms disclosed to, or required by, the court, and thereby approved, the transaction is confirmed by the decree directing it. Such decree is not a mere “interlocutory decree ordering said sale or lease,” as expressed in statute (Code 1942, § 1384), providing for confirmation thereof in vacation, but a decree executed after petition and hearing, at which all the terms disclosed by tender of the conveyances are heard and considered and thereby confirmed. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Confirmation is not necessary of a private sale of mineral lease and royalty interests in realty belonging to minor wards, where such sale was made pursuant to court decree authorizing the same on terms disclosed in guardian’s petition, even assuming that such sale was a “sale of land” contemplated by this section, and notwithstanding that decree authorizing conveyance of royalty interest provided that the guardian should make due report to the chancellor for confirmation. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Jurisdiction to authorize guardian to execute mineral lease and to convey a one-half royalty interest in realty belonging to guardian’s minor children and wards, followed domicil of the guardian-parent, although two of the minors lived at home of a great-grandfather in another county wherein the realty was located. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Prior to the enactment of this section as it now stands, sales were upon public bids, and the cognate statutory requirements are to be construed as contemplating such procedure. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Act of 1930 (Laws, 1930, ch 42, § 2), providing that such act was supplemental to any other act relating to sales of real and personal property by a decree of chancery courts, was repealed by chapter 327 of Laws, 1936, and recast in the form now appearing in this section (Code 1942, § 1389). Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

This section cannot be construed to authorize the court to permit the person making the sale to become the purchaser thereat, thereby imposing upon him inconsistent rights and duties. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

In action on notes secured by collateral, decree directing sale of collateral held erroneous in permitting plaintiff to purchase collateral at sale to be made by it. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

In judicial sales of property pledged as security for debts, to be made by persons other than pledgee, decree may permit pledgee to purchase, but pledgee cannot purchase at his own sale without consent of pledgor. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

2. Setting sale aside.

Legal fraud upon the court must be shown by clear and convincing testimony in order to warrant setting aside decree authorizing guardian of minors to execute upon terms approved by the court a mineral lease and conveyance of one-half royalty interest in realty belonging to the minors. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

Legal fraud upon the court which will warrant setting aside decree authorizing guardian to sell at private sale mineral lease and royalty interest in realty belonging to the minor wards, upon the terms disclosed in the guardian’s petition, may not be shown by a mere failure to disclose information which the court should have known, but must be shown only by a deliberate withholding of facts which the purchaser knew and the disclosure of which would have revealed that the wards had been cheated of their rights by means that were unfair and unequitable, and at a value that was then inadequate. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

The test of adequacy of consideration paid at private sale of mineral lease and royalty interests in realty belonging to minor wards, pursuant to court authority, is the reasonable value at the time of the sale and not by subsequent developments. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

There is no finality to a decree for private sale or lease of mineral rights and royalties in realty belonging to minor wards as immunizes it to attack upon the ground of fraud of which a gross inadequacy of consideration is an element. Corley v. Myers, 198 Miss. 380, 22 So. 2d 234, 1945 Miss. LEXIS 208 (Miss. 1945).

After a sale of property by decree of the chancery court, a mere increase of price or inadequacy of price at the time of sale will not alone justify the court in setting it aside, although such inadequacy or increase in connection with unfairness, injustice or inequity in making the sale would be sufficient. Bethea v. Rahaim, 196 Miss. 15, 16 So. 2d 633, 1944 Miss. LEXIS 167 (Miss. 1944).

Chancery court was correct in setting aside receiver’s private sale of certain property of insolvent and ordering another sale where inadequacy of sale price was coupled with unfairness in failing to give notice of the time and place of sale to creditors holding a recorded purchase money reserve title contract lien against such property. Bethea v. Rahaim, 196 Miss. 15, 16 So. 2d 633, 1944 Miss. LEXIS 167 (Miss. 1944).

RESEARCH REFERENCES

ALR.

Power of sale conferred on executor by testator as authorizing private sale. 11 A.L.R.2d 955.

Am. Jur.

47 Am. Jur. 2d (Rev), Judicial Sales § 7.

CJS.

30A C.J.S., Equity §§ 48, 51, 52.

50A C.J.S., Judicial Sales §§ 1-6.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

§§ 11-5-119 and 11-5-121. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-5-119. [Codes, 1871, § 1034; 1880, § 1896; 1892, § 556; 1906, § 607; Hemingway’s 1917, § 367; 1930, § 472; 1942, § 1393]

§11-5-121. [Codes, Hutchinson’s 1848, ch. 57, art. 1 (15); 1857, ch. 57, art. 16; 1871, § 2160; 1880, § 2681; 1892, § 2751; 1906, § 3111; Hemingway’s 1917, § 2475; 1930, § 2322; 1942, § 752]

Editor’s Notes —

Former §11-5-119 authorized the staying of proceedings on a bill of review.

Former §11-5-121 required that bills of review be filed within two years after the date of the final decree.

§ 11-5-123. New bond required when security insufficient in certain cases.

When it shall be alleged that the security on an injunction or receiver’s bonds, or any bond taken upon any proceeding in the chancery court, is insufficient, the chancellor shall have power to hear and determine the same in vacation, as well as in term time, and may order the injunction to be dissolved, or the receiver to be suspended or removed, or may make such other order as may be just and equitable in the case, unless a new bond with sufficient sureties be given within twenty days, or such time as he shall appoint; but if done in vacation, at least five days’ notice of the time and place of making the application shall be given to the opposite party.

HISTORY: Codes, 1880, § 1897; 1892, § 583; 1906, § 634; Hemingway’s 1917, § 394; 1930, § 444; 1942, § 1364.

JUDICIAL DECISIONS

1. In general.

Power to release sureties or require new bond is purely statutory. United States Fidelity & Guaranty Co. v. Felder, 105 Miss. 283, 62 So. 236, 1913 Miss. LEXIS 203 (Miss. 1913).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 71, 72, 73.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 66.

Receivers

§ 11-5-151. Receivers may be appointed or removed in vacation.

Receivers may be appointed by the chancellor in vacation, as well as by the chancery court in term time; and any receiver may be removed by the chancellor in vacation, as well as by the chancery court in term time; but before any receiver shall be so removed in vacation, the party applying therefor must give the adverse party, or his solicitor, and the receiver five days’ notice of the time and place of presenting such application; such application may be heard in term time on two days’ notice.

HISTORY: Codes, 1892, § 576; 1906, § 627; Hemingway’s 1917, § 387; 1930, § 435; 1942, § 1355.

Cross References —

Reduction or cancellation of receiver’s bond in vacation, see §9-5-103.

Requirement of bond upon removal of receiver, see §11-5-157.

Appointment of receiver for nonresident or unknown owners of mineral interests, see §11-17-33.

Appointment of trustees upon judgment of forfeiture and ouster, see §§11-39-25 through11-39-39.

Jurisdiction of chancery court to issue injunction and appoint receiver under Medicaid Fraud Control Act, see §43-13-227.

Receivership of bank, see §§81-9-17 to81-9-37.

Receivership of insolvent insurance company, see §§83-23-1 to83-23-9.

Receivership for burial associations, see §83-37-31.

Administration of assignments for benefit of creditors, see §§85-1-1 to85-1-19.

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Right of appeal.

1. In general.

Plaintiff must show, first, he has clear right to the property, or a lien upon it, or that it constitutes a special fund to which he has a right to resort, and, second, that defendant’s possession obtained by fraud, or property or income therefrom is in danger of loss from neglect, waste, misconduct, or insolvency of defendant. Clark v. Fleming, 130 Miss. 504, 94 So. 458, 1922 Miss. LEXIS 228 (Miss. 1922).

Liens and priorities acquired before appointment of receiver will not be disturbed. P. E. Payne Hardware Co. v. International Harvester Co., 110 Miss. 783, 70 So. 892, 1916 Miss. LEXIS 199 (Miss. 1916).

Appointment of receiver is always within the sound discretion of the court, but the necessity therefor should be clear and the interest of all parties considered. Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018, 1912 Miss. LEXIS 244 (Miss. 1912).

A decree appointing a receiver impliedly limits the right of the receiver to property which is not exempt from execution. Levy v. T. R. Rosell & Co., 82 Miss. 527, 34 So. 321, 1903 Miss. LEXIS 154 (Miss. 1903).

2. Right of appeal.

The statutes have been so altered that an appeal from a decree discharging a receiver may now be taken. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

Under the Code of 1880, which left the appointment and discharge of receivers wholly to the discretion of the court, an appeal did not lie from an order of the chancellor discharging the receiver. Hanon v. Weil, 69 Miss. 476, 13 So. 878, 1891 Miss. LEXIS 175 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Appointment of receiver at instance of plaintiffs in tort action. 4 A.L.R.2d 1278.

Appealability of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appealability of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver. 72 A.L.R.2d 1075.

What constitutes waste justifying appointment of receiver of mortgaged property. 55 A.L.R.3d 1041.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation. 15 A.L.R.4th 224.

Federal receivers of property in different districts under 28 USCS § 754. 57 A.L.R. Fed. 621.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 150- 154.

65 Am. Jur. 2d, Receivers §§ 146-150.

13B Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:252.1 (appointment of receiver).

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 1 et seq., 21 et seq, 351 et seq.

CJS.

75 C.J.S., Receivers §§ 39-43, 78-81.

§ 11-5-153. Receiver not appointed without notice.

A receiver shall not be appointed without the party praying the appointment having given the opposite party at least five days’ notice of the time and place of making the application, unless it shall appear that an immediate appointment is necessary, or good cause be shown for not giving notice.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 19 (1); 1857, ch. 62, art. 74; 1871, § 1052; 1880, § 1921; 1892, § 574; 1906, § 625; Hemingway’s 1917, § 385; 1930, § 436; 1942, § 1356.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Necessity of notice.

3. Appointment without notice.

1. In general.

The conditions which must be shown in order to entitle a stockholder to have a dissolution of a corporation and a receiver appointed are the insolvency of the corporation, or that the corporation ceases to be a going concern, or while not solvent the corporation sells its franchises in whole or in part. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Receiver not appointed at instance of simple contract creditor without lien. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Receivership never primary object of suit. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Appointment not independent equity, but auxiliary remedy. Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447, 1925 Miss. LEXIS 286 (Miss. 1925).

Appointment discretionary and exercised as auxiliary to attainment of justice. Clark v. Fleming, 130 Miss. 504, 94 So. 458, 1922 Miss. LEXIS 228 (Miss. 1922).

The appointment of a receiver can only be made in a pending cause. It cannot be made before the bill is filed. Barber v. Manier, 71 Miss. 725, 15 So. 890, 1894 Miss. LEXIS 27 (Miss. 1894); Smith v. Ely & Walker Dry Goods Co., 79 Miss. 266, 30 So. 653, 1901 Miss. LEXIS 54 (Miss. 1901).

2. Necessity of notice.

A receiver should not be appointed without due regard to the rights of the defendant as well as complainant and never without notice unless the necessity is urgent. Buckley v. Baldwin, 69 Miss. 804, 13 So. 851, 1892 Miss. LEXIS 48 (Miss. 1892).

3. Appointment without notice.

Chancellor was justified in terminating the receivership and returning the assets to the corporation where the entire proceedings wherein the dissolution of the corporation was ordered and the receiver appointed were void for want of notice to other stockholders, and for failure to post the receiver’s bond, without regard to the fact that the president and vice president, who were majority stockholders of the corporation, failed to testify in the case. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

An order for the dissolution of a corporation and the appointment of a receiver was void where the petition for the dissolution of the corporation and the appointment of the receiver did not allege the existence of any emergency justifying the appointment of a receiver without notice, and the president and vice-president, who owned the majority of the stock, were not given notice, and no bond was executed, as required by Code 1942, § 1357. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Only gravest emergency justifies appointment of receiver without notice. Burton v. Pepper, 116 Miss. 139, 76 So. 762, 1917 Miss. LEXIS 291 (Miss. 1917).

Unsecured creditor cannot secure appointment of receiver, without notice, by simply showing execution of deeds of trust by debtor firm to other creditors. Lawrence Lumber Co. v. A. J. Lyon & Co., 93 Miss. 859, 47 So. 849, 1908 Miss. LEXIS 161 (Miss. 1908).

Where a receiver has been appointed without notice by the chancellor of another district, it will be presumed on a recital to that effect in the chancellor’s order that the showing required by statute to authorize such action was made. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

The court cannot appoint a receiver for a bank on its ex parte application, though it is insolvent. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

Appointment of a receiver, without notice and before process served, on bill by execution creditors against debtor and claimants under trust deeds, alleging that defendants were conspiring to hinder and delay the complainants until the secured debts should mature and the property could be sold and bought by such secured claimants, was erroneous, since any wrongful disposition of the property could be prevented by injunction. Meridian News & Pub. Co. v. Diem Wing Paper Co., 70 Miss. 695, 12 So. 702, 1893 Miss. LEXIS 21 (Miss. 1893).

RESEARCH REFERENCES

ALR.

Appealability of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appealability of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver. 72 A.L.R.2d 1075.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 64, 66, 67— 69.

13B Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds § 179:252.1 (appointment of receiver).

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 1-4.

CJS.

75 C.J.S., Receivers §§ 44-53.

§ 11-5-155. Complainant to give bond before receiver appointed without notice.

Before any receiver shall be appointed without notice, the party applying for the appointment shall execute bond, payable to the adverse party, in a sufficient penalty to be fixed by the court or chancellor, with sufficient sureties, conditioned to pay all damages that may be sustained by the appointment of such receiver in case the appointment be revoked; and said bond shall be filed in the cause, and damages may be recovered thereon in the suit in the same manner as damages are recoverable on an injunction bond or the party entitled to damages may maintain an independent suit on such bond for such damages.

HISTORY: Codes, 1892, § 575; 1906, § 626; Hemingway’s 1917, § 386; 1930, § 437; 1942, § 1357.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

The conditions which must be shown in order to entitle a stockholder to have a dissolution of a corporation and a receiver appointed are the insolvency of the corporation, or that the corporation ceases to be a going concern, or while not solvent the corporation sells its franchises in whole or in part. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

An order for the dissolution of a corporation and the appointment of a receiver was void where the petition for the dissolution of the corporation and the appointment of the receiver did not allege the existence of any emergency justifying the appointment of a receiver without notice, and the president and vice-president, who owned the majority of the stock, were not given notice, and no bond was executed, as required by this section [Code 1942, § 1357]. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Chancellor was justified in terminating the receivership and returning the assets to the corporation where the entire proceedings wherein the dissolution of the corporation was ordered and the receiver appointed were void for want of notice to other stockholders, and for failure to post the receiver’s bond, without regard to the fact that the president and vice president, who were majority stockholders of the corporation, failed to testify in the case. Welsh v. Clinton Lumber & Supply Co., 232 Miss. 507, 99 So. 2d 660, 1958 Miss. LEXIS 300 (Miss. 1958).

Upon decree discharging receiver complainant is liable on the bond for all damages sustained because of appointment. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

RESEARCH REFERENCES

CJS.

75 C.J.S., Receivers § 61.

§ 11-5-157. Bond in lieu of receiver.

On an application for the appointment of a receiver, the court or chancellor may, in the exercise of sound discretion, in lieu of a receiver, order that the party against whom the receiver is asked, execute bond, to be approved by the court or chancellor, payable to the party who asks for the appointment, with sufficient sureties, in a sufficient penalty, to be fixed by the court or chancellor, conditioned according to the nature of the case, as the court or chancellor may direct. Upon the execution, approval, and filing of such bond, the receiver shall not be appointed; and any decree rendered in the cause on final hearing against the principal obligor in the bond shall be rendered against the sureties therein, within the scope of its conditions and penalty. On an application to remove a receiver who shall have been appointed without notice, the court or chancellor may exercise the same discretion, and, in lieu of retaining the receiver, may remove him upon the execution, approval, and filing of such bond; and decree may be rendered thereon as if given on the application for the appointment of a receiver.

HISTORY: Codes, 1892, § 578; 1906, § 629; Hemingway’s 1917, § 389; 1930, § 438; 1942, § 1358.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers § 74.

CJS.

75 C.J.S., Receivers § 61.

§ 11-5-159. Bond of receiver.

Every receiver, when appointed, shall, before being authorized to act as such, give bond, payable to the state, in such penalty and with such sureties as may be approved by the court or chancellor, conditioned that he will in all things faithfully discharge the duties of his office as receiver; which bond shall be filed with the clerk of the court, and may be put in suit, in the name of the state, for the use of the party aggrieved, from time to time, until the whole penalty shall be recovered.

HISTORY: Codes, 1857, ch. 62, art. 75; 1871, § 1053; 1880, § 1922; 1892, § 579; 1906, § 630; Hemingway’s 1917, § 390; 1930, § 439; 1942, § 1359.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 71, 72, 73.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 66.

§ 11-5-161. Receivers subject to orders of court, and may apply therefor in vacation.

Receivers shall be subject to the orders, instructions, and decrees of the court, and of the chancellor in vacation; and they, or any party in interest, may apply therefor in term time, or to the chancellor in vacation, or for modifications of previous orders or instructions; and obedience thereto may be enforced by attachment.

HISTORY: Codes, 1857, ch. 62, art. 77; 1871, § 1055; 1880, § 1924; 1892, § 577; 1906, § 628; Hemingway’s 1917, § 388; 1930, § 440; 1942, § 1360.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Receiver not liable for disbursement of funds under order of court. United States Fidelity & Guaranty Co. v. McCain, 136 Miss. 30, 136 Miss. 306, 101 So. 197, 1924 Miss. LEXIS 113 (Miss. 1924).

Order by chancellor in vacation instructing receiver to sell property may be made in any county or court in which receivership situated. Cashin v. Murphy, 132 Miss. 834, 96 So. 747, 1923 Miss. LEXIS 82 (Miss. 1923).

Court may appoint receiver for solvent corporation upon petition of minority stockholders on a showing of maladministration by officers appointed by majority and if shown to be necessary to wind up business. Brent v. B. E. Brister Sawmill Co., 103 Miss. 876, 60 So. 1018, 1912 Miss. LEXIS 244 (Miss. 1912).

Under the facts of the case, a decree authorizing a receiver to continue the publication of a newspaper was held to be too broad. Meridian News & Pub. Co. v. Diem Wing Paper Co., 70 Miss. 695, 12 So. 702, 1893 Miss. LEXIS 21 (Miss. 1893).

RESEARCH REFERENCES

ALR.

Receiver’s personal liability for negligence in failing to care for or maintain property in receivership. 20 A.L.R.3d 967.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 144- 146.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 101 et seq., 161.

CJS.

75 C.J.S., Receivers §§ 112-115, 119, 155–158.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-5-163. Receiver of estate of decedent, minor.

In all cases in which it may be thought to be necessary for the protection of the estate of decedents, minors, and persons of unsound mind, a receiver may be appointed, either by the court or by the chancellor in vacation, subject to the provisions of sections 11-5-151 to 11-5-161.

HISTORY: Codes, 1880, § 1926; 1892, § 581; 1906, § 632; Hemingway’s 1917, § 392; 1930, § 441; 1942, § 1361.

Cross References —

Appointment of guardian ad litem for infants or defendants of unsound mind, see §9-5-89.

Appointment of guardian for minors, see §93-13-13.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Receiver should not be appointed in estate matter because executor or administrator is derelict. Huston v. King, 119 Miss. 347, 80 So. 779, 1919 Miss. LEXIS 7 (Miss. 1919).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 869, 870 , 875.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Form 22.

CJS.

43 C.J.S., Infants § 461.

§ 11-5-165. Receiver of money paid into court.

When money shall be paid into court under its order, a receiver may be appointed to keep the same, who shall give bond and security as in other cases; but if the money shall be ordered to be paid to the clerk of such court, his official bond shall cover it, and an additional bond may be required if the court or chancellor shall think proper.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 19 (5); 1857, ch. 62, art. 78; 1871, § 1056; 1880, § 1925; 1892, § 580; 1906, § 631; Hemingway’s 1917, § 391; 1930, § 442; 1942, § 1362.

Cross References —

Additional bond for money received by circuit court clerk, see §9-7-121.

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

A federal interpleader action brought in its own jurisdiction by a nonresident judgment debtor of an insolvent Mississippi judgment creditor was dismissed where, under Code 1942, §§ 1362 and 2804, ample procedures existed for the protection of the judgment debtor’s rights in Mississippi. Hansen v. Mathews, 424 F.2d 1205, 1970 U.S. App. LEXIS 10987 (7th Cir. Wis.), cert. denied, 397 U.S. 1057, 90 S. Ct. 1404, 25 L. Ed. 2d 675, 1970 U.S. LEXIS 2256 (U.S. 1970).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 71, 72, 73.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 91-93.

CJS.

75 C.J.S., Receivers § 66.

§ 11-5-167. Compensation of receiver.

Receivers shall be entitled to have such compensation for their services as the court shall allow, and shall have a lien upon the property in their hands for the payment thereof, and of their necessary expenses. The court shall make such order to compel the payment thereof as may be just and necessary, and may decree the payment thereof by any of the parties as a portion of the costs of the suit.

HISTORY: Codes, 1857, ch. 62, art. 76; 1871, § 1054; 1880, § 1923; 1892, § 582; 1906, § 633; Hemingway’s 1917, § 393; 1930, § 443; 1942, § 1363.

Cross References —

Receivers, see Miss. R. Civ. P. 66.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Lien.

1. In general.

An attorney employed by the receiver under a general assignment held entitled to compensation under the facts and conditions described. Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305, 1898 Miss. LEXIS 52 (Miss. 1898).

Only such expenses as are incurred in benefiting or preserving the estate may be allowed. Counsel fees incurred in an unsuccessful defense of an assignment against creditors cannot be. An allowance may be made for the services of the assignee in a general assignment under the code, who is made by the statute a receiver. Perry Mason Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 1894 Miss. LEXIS 131 (Miss. 1894).

2. Lien.

Code 1942, § 1363 does not create a lien by operation of law which would follow the property out of the receivership and survive the termination of the receivership proceedings. In re Anglo-American Properties, Inc., 460 F.2d 212, 1972 U.S. App. LEXIS 9716 (5th Cir. Miss. 1972).

RESEARCH REFERENCES

ALR.

Costs and other expenses incurred by fiduciary whose appointment was improper as chargeable against estate. 4 A.L.R.2d 160.

Measure and amount of compensation of receiver appointed by federal court. 6 A.L.R. Fed. 817.

Am. Jur.

65 Am. Jur. 2d, Receivers §§ 234-288.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Forms 301-304.

CJS.

75 C.J.S., Receivers §§ 449-452.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March 1979.

Chapter 7. Practice and Procedure in Circuit Courts

In General

§ 11-7-1. Provisions applicable to all courts.

All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

HISTORY: Codes, Hutchinson’s 1848, ch. 53, art. 2 (100); 1857, ch. 61, art. 189; 1871, § 630; 1880, § 1585; 1892, § 629; 1906, § 687; Hemingway’s 1917, § 465; 1930, § 474; 1942, § 1412.

Cross References —

Other sections derived from same 1942 code section, see §§11-1-57,11-11-1.

Judges, terms, general powers and duties of circuit court, see § 9-7-1 et seq.

Trial of right of property, see §11-23-1 et seq.

Attachment at law against debtors, see §11-33-1 et seq.

Garnishment proceedings, see §11-35-1 et seq.

Action of replevin, see §11-37-1 et seq..

Quo warranto proceedings, see §11-39-1 et seq.

Mandamus and writs of prohibition, see §11-41-1 et seq.

Habeas corpus proceedings, see §11-43-1 et seq.

Suits against state or its political subdivisions, see §11-45-1 et seq.

Rules of evidence generally, see §13-1-1 et seq.

Process, publication and notice generally, see §13-3-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Procedural rules applicable to practice in Mississippi circuit and county courts, see URCCC 1.01 et seq.

Procedural rules for criminal proceedings in all Mississippi trial courts, see MRCrP 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Venue.

3. Dismissal.

4. Evidence.

1. In general.

In view of the section [Code 1942, § 1412] and Code 1930, §§ 575, 1397 case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

By this section [Code 1942, § 1412], the provisions of the chapter are made applicable to all courts, and this embraces the county court; and, accordingly, conviction on a plea of guilty entered on an amendable affidavit is good and cannot be set aside on certiorari because of a defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

2. Venue.

In view of this section [Code 1942, § 1412], a fraternal benefit association may be sued in the chancery court of the county in which the beneficiary resides. Masonic Ben. Ass'n v. Dotson, 111 Miss. 60, 71 So. 266, 1916 Miss. LEXIS 240 (Miss. 1916).

3. Dismissal.

Where a suit was brought in chancery court for cancelation of a conveyance on the ground that it has never been delivered, the chancellor should have granted the complainant’s motion for voluntary dismissal without prejudice where there was no submission to the chancellor for final decision on merits. Graham v. Graham, 214 Miss. 99, 58 So. 2d 85, 1952 Miss. LEXIS 449 (Miss. 1952).

A complainant in the chancery court has the right under the statute to dismiss his suit without prejudice. This rule applies in all cases where the defendant will not be prejudiced by a dismissal. Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 1917 Miss. LEXIS 137 (Miss. 1917); Adams v. Dean, 74 So. 436 (Miss. 1917); Adams v. Leatherbury, 74 So. 436 (Miss. 1917); Adams v. McInnis, 74 So. 436 (Miss. 1917).

4. Evidence.

Under the provisions of this section [Code 1942, § 1412], Code 1942, § 1469 is applicable to suits in the chancery court. General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So. 2d 845, 1965 Miss. LEXIS 927 (Miss. 1965).

In action of unlawful entry and detainer, introduction in evidence of deed to plaintiff held not objectionable on ground that no copy of deed was filed as exhibit to declaration, since statute (Code 1930, § 3458) made no such requirement. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Statutes requiring copy of writing to be annexed to declaration or bill before evidence of writing may be introduced applies to chancery court as well as to circuit court. Thomas v. B. Rosenberg & Sons, Inc., 153 Miss. 314, 120 So. 732, 1929 Miss. LEXIS 18 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Pleading and proof of law of foreign country. 75 A.L.R.3d 177.

Am. Jur.

20 Am. Jur. 2d, Courts §§ 29, 30 et seq.

CJS.

21 C.J.S., Courts §§ 188-245.

Law Reviews.

The Limits of the Mississippi Supreme Court’s Rule-Making Authority. 60 Miss. L. J. 359, Fall 1990.

§ 11-7-3. Assignee of chose in action may sue.

The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the case, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit. An “assignee” for purposes of this section includes both absolute assignees, with or without recourse, and conditional or limited assignees including assignees for collection purposes.

HISTORY: Codes, Hemingway’s 1917, § 497; 1930, § 505; 1942, § 1448; Laws, 1916, ch. 134; Laws, 2001, ch. 359, § 1, eff from and after July 1, 2001.

Cross References —

Benefits carried with assignment of negotiable instruments, see §75-13-1.

Effect of releasing one or more joint debtors, see §85-5-1.

Provision that no action shall be dismissed on ground that it is not prosecuted in name of real party in interest until reasonable time has been allowed after objection for ratification of commencement of action by, or joinder or substitution of, real party in interest, see Miss. R. Civ. P. 17.

Substitution of parties generally, see Miss. R. Civ. P. 25.

JUDICIAL DECISIONS

1. In general.

2. Rights assignable.

3. Assignment to attorney.

4. Necessity of assignment in writing.

5. Suit by or in the name of assignor.

6. Right of assignee to sue.

7. Assignment pendente lite.

8. Rights of assignor and assignee inter se.

9. Payment or settlement of claim after assignment.

10. Evidence.

11. Parties.

12. Limitation of actions.

1. In general.

Pursuant to a divorce, the property settlement agreement provided that each party released the other party from all claims through the date of the agreement, and referenced civil or criminal actions; the agreement was an appropriate location for a release of claims to appear, the claims that were the subject of the agreement were “choses in action,” and the trial court properly held that the contractual agreement precluded the wife’s suit for personal injuries based on a pre-divorce assault by the husband. Martinez v. Martinez, 860 So. 2d 1247, 2003 Miss. App. LEXIS 1151 (Miss. Ct. App. 2003).

In a cause of action based upon an open account for merchandise sold and delivered by the receiver of a bankrupt company to the defendant, where the declaration alleges that there was proper assignment under the authority of a proper decree of a chancery court, the failure of the plaintiff to file a copy of the order appointing the receiver and a copy of order authorizing sale of assets of the bankrupt company receivership to the plaintiff, with the declaration, does not constitute such a defect as to require a reversal of a default judgment. Britton v. Magnolia State Casket & Supply Co., 210 Miss. 264, 49 So. 2d 404, 1950 Miss. LEXIS 346 (Miss. 1950).

Statute regarding right of assignee of chose in action to sue in his own name held not applicable to suits in equity to enforce right of subrogation. Box v. Early, 181 Miss. 19, 178 So. 793 (Miss. 1938).

Statute (Code 1942, § 1450), requiring that assignment of chose in action be in writing, filed with papers, held not in conflict with this section [Code 1942, § 1448] authorizing institution or continuance of action in assignor’s name. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

2. Rights assignable.

Trial court did not err in failing to recognize and apply the waiver, joinder and assignment documents signed by a mother’s children regarding her claims for child support arrearages on their behalves because although Miss. Code Ann. §11-7-3 allowed for the assignment of choses in action, the child support benefits belonged to the children with the mother serving only in a fiduciary capacity. Ladner v. Logan, 857 So. 2d 764, 2003 Miss. LEXIS 551 (Miss. 2003).

Because a wrongful death claim accrued at death, a decedent could not have assigned it – or the personal injury component of the wrongful death claim that survived her death pursuant to Miss. Code Ann. §11-7-13 – to her ex-husband under Miss. Code Ann. §11-7-3. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

A claim against an insurance company for bad faith is assignable. Kaplan v. Harco Nat'l Ins. Co., 708 So. 2d 89 (Miss. Ct. App.), op. withdrawn, 716 So. 2d 673, 1998 Miss. App. LEXIS 139 (Miss. Ct. App. 1998).

Holder of mortgage on property destroyed by fire could properly assign its interest in any claims and/or causes of action against insurance company arising out of loss to the property owner, with property owner remaining fully liable to mortgagee for amount still owed on mortgage, and such assignment is not champertous, as property owners who obtain assignment from mortgage company are not strangers to litigation against insurance company and have asserted interest separate and distinct from interest of mortgagee; in issues of propriety of assignment and claims of champerty, analysis is not focused on relationship between assignee and assignor but rather relationships between assignor and insurance company and assignees and insurance company. Stephen R. Ward, Inc. v. United States Fidelity & Guaranty Co., 681 F. Supp. 389, 1988 U.S. Dist. LEXIS 1902 (S.D. Miss. 1988).

Under this provision, a cause of action for personal injuries may be assigned in part, and no unjust enrichment is involved in permitting recovery in excess of the amount due the assignee. Farmer v. Humphreys County Memorial Hospital, 236 Miss. 35, 109 So. 2d 356, 1959 Miss. LEXIS 291 (Miss. 1959).

The right of a borrower in case of usury to recover the principal and interest is not assignable. Fry v. Layton, 191 Miss. 17, 2 So. 2d 561, 1941 Miss. LEXIS 138 (Miss. 1941).

Landowner’s right to recover for cutting timber is assignable; deed conveying land with all rights of action accrued or to accrue, for depredation and trespasses, assigned right of action for wrongful cutting timber prior thereto. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

Action for recovery of personal property or to enforce contract or recover damages for breach of contract or for injury to person or property survives, and is assignable; pure penalty intended as punishment for misconduct does not survive, and is not assignable. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

An injured person may assign his claim for damages. Reese v. Salmon, 99 So. 382 (Miss. 1924).

The vendor of standing timber, acquiescing in the assignment of the contract of sale thereof, is estopped to deny the assignability of a claim. Young v. Adams, 122 Miss. 1, 84 So. 1, 1920 Miss. LEXIS 412 (Miss. 1920).

A valid claim for personal injuries may be assigned. Wells v. Edwards H. & C. R. Co., 96 Miss. 191, 50 So. 628, 1909 Miss. LEXIS 42 (Miss. 1909).

The right given to nonresident defendants against whom a final decree has been rendered to apply for a new hearing within two years is assignable and may be exercised by the assignee. Fink v. Henderson, 74 Miss. 8, 19 So. 892, 1896 Miss. LEXIS 97 (Miss. 1896).

A covenant not to re-engage in the insurance business is assignable and may be enforced by the assignee. Klein v. Buck, 73 Miss. 133, 18 So. 891, 1895 Miss. LEXIS 104 (Miss. 1895).

3. Assignment to attorney.

Where an attorney who, under a contract with his client, had obtained an assignment of a 50 per cent interest in the client’s cause of action against the defendant, or a 50 per cent contingent fee in the amount that might be recovered therein, had failed to file his contract in compliance with this section [Code 1942, § 1448], and in an action upon the alleged assignment, defendant, who had obtained a written settlement and release from the client, answered he had no knowledge of the contract between the attorney and the client at the time of his settlement with the client, the trial court properly sustained defendant’s plea in bar, in view of ample evidence to support the finding as to the absence of knowledge on the defendant’s part at the time of the release. Cumbest v. Kaufman, 230 Miss. 713, 93 So. 2d 857, 1957 Miss. LEXIS 413 (Miss. 1957).

Absent assignment to attorneys of interest in cause of action, complainant in good faith may dismiss suit without attorneys’ consent, notwithstanding attorneys’ fee is contingent. Zerkowsky v. Zerkowsky, 160 Miss. 278, 131 So. 647, 1931 Miss. LEXIS 121 (Miss. 1931).

4. Necessity of assignment in writing.

Real party in interest was company which had allegedly sold its stock to another company, and not company purchasing stock, where, other than proposal to buy stock and order of bankruptcy court accepting such proposal, no document evidencing sale or transfer of assets was executed between selling and purchasing companies. J. Morco, Inc. v. Prentiss Mfg. Co., 675 F. Supp. 1039, 1987 U.S. Dist. LEXIS 12465 (S.D. Miss. 1987).

The equitable holder of a chose in action, to whom a written assignment is not made, cannot sue in his own name. M. Lowenburg & Co. v. Jones, 56 Miss. 688, 1879 Miss. LEXIS 194 (Miss. 1879).

5. Suit by or in the name of assignor.

Court’s order allowing insurers, which had made payments to the insured for loss under a contract subrogating them pro tanto to insured’s claim for damages, to be made parties in insured’s action for damages caused by the alleged negligent installation of gas heating appliance in no way interfered with insured’s right to maintain action where none of the insurers filed pleadings attacking insurer’s right, and only action taken by insurers’ counsel was on the side of, and in aid of insured’s cause and with his full consent and approval. Ford v. United Gas Corp., 254 F.2d 817, 1958 U.S. App. LEXIS 4113 (5th Cir. Miss.), cert. denied, 358 U.S. 824, 79 S. Ct. 40, 3 L. Ed. 2d 64, 1958 U.S. LEXIS 443 (U.S. 1958).

Assignment of conditional sales contracts to a bank as collateral, held not to preclude the assignor from suing thereon. Murdock Acceptance Corp. v. Adcox, 245 Miss. 151, 138 So. 2d 890, 1962 Miss. LEXIS 542 (Miss. 1962).

Insurance companies, assignees of the insured’s cause of action, by bringing the action in the name of the assignor for damages resulting from the defendant’s alleged negligence in improperly installing a floor furnace in the insured’s home, elected to proceed in the name of the assignor, so that the trial court properly refused to permit plaintiff’s attorneys to impeach the assignor. Toler v. Owens, 231 Miss. 753, 97 So. 2d 728, 1957 Miss. LEXIS 562 (Miss. 1957).

Where suit by former sheriff against the county for fees alleged to be past due and owing him and the county made a counterclaim against the former sheriff and the suit was dismissed by agreement of the parties and without prejudice to either the claim of the former sheriff or the counterclaim of the county, and where later the former sheriff assigned his claim to an accountant, the order of dismissal was binding upon the former sheriff and nonprejudicial to the accountant’s rights as assignee to thereafter prosecute a suit in his own name. Smith v. Copiah County, 219 Miss. 633, 69 So. 2d 404, 1954 Miss. LEXIS 371 (Miss. 1954).

Under this section [Code 1942, § 1448], court is correct in permitting action brought in name of wife on hospitalization policy to proceed in her name after reopening of case to permit husband, to whom she had made assignment, to state that he authorized her to bring suit in her name and waived all his rights under assignment. American Life Ins. Co. v. Walker, 208 Miss. 1, 43 So. 2d 657, 1949 Miss. LEXIS 401 (Miss. 1949).

Where surety company on fidelity bond paid credit association amount of loss occasioned by dishonesty of association’s employee in forging indorsements on checks and drafts issued by such association on drawee-depository bank, and association assigned its rights to the surety, and at the request of the surety brought suit against the bank, suit could be instituted and prosecuted in the name of the association but the suit was entirely for the benefit of the surety. Oxford Production Credit Ass'n v. Bank of Oxford, 196 Miss. 50, 16 So. 2d 384, 1944 Miss. LEXIS 169 (Miss. 1944).

Where surety on fidelity bond paid credit association amount of loss occasioned by forgery of association’s employee in the indorsement of checks and drafts issued by such association upon drawee bank, and association assigned its rights to surety, action in name of association against bank, to which bank set up equitable defenses, was properly removed to chancery court, and when so transferred, proof of all equities and the effect thereof could properly be made and considered. Oxford Production Credit Ass'n v. Bank of Oxford, 196 Miss. 50, 16 So. 2d 384, 1944 Miss. LEXIS 169 (Miss. 1944).

A liquidating committee of a bank, vested with authority under decree of the chancery court to sue for and collect the indebtednesses due such bank, could maintain an action to collect a debt due the bank represented by promissory notes collaterally secured by corporate stock notwithstanding that such notes and collateral security had been assigned by the bank to the Reconstruction Finance Corporation, in view of the fact that the bank, as payee of such promissory note, was the original party entitled to sue on the note within the meaning of this section [Code 1942, § 1448]. Morrison v. Gulf Oil Corp., 189 Miss. 212, 196 So. 247, 1940 Miss. LEXIS 108 (Miss. 1940).

Order to amend declaration in tort action by bringing in corporation, to which plaintiff assigned right of action before bringing suit, as party thereto, and dismissal of suit for noncompliance with such order, held erroneous. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

Where the assignee brings suit in the name of the assignor, the suit may be prosecuted in the name of the assignor, or it can be by order of the court prosecuted in the name of the assignee as substituted plaintiff. Bolivar Compress Co. v. Mallett, 139 Miss. 213, 104 So. 79, 1925 Miss. LEXIS 134 (Miss. 1925).

Suits may be brought, maintained and appealed in the name of the assignor under this section [Code 1942, § 1448]. Ridgeway v. Jones, 122 Miss. 624, 84 So. 692, 1920 Miss. LEXIS 463 (Miss. 1920).

In a suit by one person for the use of another, recovery can only be had on the cause of action, the legal title to which is in the plaintiff. Where, under this section [Code 1942, § 1448] the usee is substituted for the plaintiff the extent to which the recovery may be had is not enlarged. Yazoo & M. V. R. Co. v. S. B. Wilson & Co., 83 Miss. 224, 35 So. 340, 1903 Miss. LEXIS 36 (Miss. 1903).

In actions of tort, usees have no rights that entitle them to recognition as parties litigant, but proof of right in the nominal plaintiff entitles him to a recovery. Jones v. Kansas C., M. & B. R. Co., 75 Miss. 913, 23 So. 547, 1898 Miss. LEXIS 33 (Miss. 1898).

A bailor whose warehouse receipts are pledged cannot maintain replevin or trover either in his own name or for the use of the pledgee. Selleck v. Macon Compress & Warehouse Co., 72 Miss. 1019, 17 So. 603, 1895 Miss. LEXIS 23 (Miss. 1895).

An action for damages against a railroad company for killing animals should not be brought in the name of one for the use of another, since in tort actions there cannot be a usee. Kansas City, M. & B. R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344, 1892 Miss. LEXIS 123 (Miss. 1892).

A plaintiff suing on several demands, one of which is held by verbal assignment from a partnership, may amend so as to proceed in the name of the partnership, as to that, and dismiss as to the other claims. Shannon v. Rester, 69 Miss. 238, 13 So. 587, 1891 Miss. LEXIS 134 (Miss. 1891).

An assignor in writing of an account cannot sue in his own name for the use of the assignee. Beck v. Rosser, 68 Miss. 72, 8 So. 259, 1890 Miss. LEXIS 5 (Miss. 1890).

6. Right of assignee to sue.

In an action by a savings and loan association against a former vice-president and members of the board of directors for $26 million dollars in damages for alleged breach of fiduciary duty in the management of the association, the trial court properly rejected the defendants’ contention that the suit was barred due to the acquisition of the association by a successor corporation where the written bill of sale and assignment had the effect of transferring and assigning unto the successor corporation all properties, assets and choses in action of every kind and nature, including the present action. Liberty Sav. & Loan Asso. v. Mitchell, 398 So. 2d 208, 1981 Miss. LEXIS 2003 (Miss. 1981).

A “subrogation receipt” taken by an insurer upon settling with insured for damage caused by a third person is such an assignment of insured’s right of action as to permit the insurer to bring suit thereon. United States Fidelity & Guaranty Co. v. Covert, 242 Miss. 1, 133 So. 2d 403, 1961 Miss. LEXIS 522 (Miss. 1961).

Under this section [Code 1942, § 1448], public accountant has right to contract with public official for prosecution of suit for additional salary, in consideration of percentage of recovery, and the suit may be prosecuted in the name of the latter as assignee. Calhoun County v. Cooner, 152 Miss. 100, 118 So. 706, 1928 Miss. LEXIS 219 (Miss. 1928).

Liquidating agent authorized to effect settlement of debts, etc., by agreement between bank, creditors, and state banking department could sue on note payable to bank or bearer. Yazoo Delta Mortg. Co. v. Harlow, 150 Miss. 105, 116 So. 441, 1928 Miss. LEXIS 117 (Miss. 1928).

A contract for the sale of timber is enforceable against the vendor by the assignee of the vendee. Young v. Adams, 122 Miss. 1, 84 So. 1, 1920 Miss. LEXIS 412 (Miss. 1920).

Plaintiff must have title to a chose in action at the time he brings suit; so where assignment of the right of action on a fire insurance policy was not made to plaintiff until after he brought suit thereon, the action could not be maintained. St. Paul Fire & Marine Ins. Co. v. W. H. Daniel Auto Co., 121 Miss. 745, 83 So. 807, 1920 Miss. LEXIS 118 (Miss. 1920).

Where a carrier by mistake delivers partnership property to a stranger and pays the partnership for it, receiving an assignment from one only of the partners of his interest therein, it may sue the stranger for the value of the property, notwithstanding the failure of the other partners to join in the assignment. Johnson, Nesbitt & Co. v. Gulf & C. R. Co., 82 Miss. 452, 34 So. 357, 1903 Miss. LEXIS 169 (Miss. 1903).

And in such case the carrier may sue in trover or waive the tort and sue for the value of the property without an assignment from the owner. Johnson, Nesbitt & Co. v. Gulf & C. R. Co., 82 Miss. 452, 34 So. 357, 1903 Miss. LEXIS 169 (Miss. 1903).

The assignee may sue in his own name if the assignment be in writing, though another may possess a beneficial interest in the money due. Jenkins v. Sherman, 77 Miss. 884, 28 So. 726, 1900 Miss. LEXIS 55 (Miss. 1900).

This section [Code 1942, § 1448], gives to assignees of grantors in fee, and to the assignees of covenants expressed in conveyances in fee, the like remedies for the estate assigned and upon the conditions and covenants contained in them that the common law gave to the original parties and their privies in contract. Wright v. Hardy, 76 Miss. 524, 24 So. 697, 1898 Miss. LEXIS 96 (Miss. 1898).

Where the seller, by separate written contract, reserves the legal title as security for a note for the purchase price, the assignee of the note may enforce the contract as a security. Ross-Meehan Brake-Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364, 1895 Miss. LEXIS 37 (Miss. 1895).

But the right is purely defensive unless the assignment be in writing. Pollard v. Thomas, 61 Miss. 150, 1883 Miss. LEXIS 90 (Miss. 1883).

The person to whom a claim for damages for injury to personal property has been assigned in writing can sue thereon, in his own name. Chicago, S. L. & N. O. R. Co. v. Packwood, 59 Miss. 280, 1881 Miss. LEXIS 118 (Miss. 1881).

7. Assignment pendente lite.

In an action by an assignor in the circuit court, after transfer from the chancery court, for reimbursement for the default in the account of an insurance agent guaranteed by bond, the assignment having been made while the suit was pending in the chancery court, the assignee was entitled to prove the payment of the consideration for such assignment on the trial of the suit in the circuit court maintained in the name of the assignor. Jenkins & Boyle v. Rogers, 184 Miss. 182, 185 So. 603, 1939 Miss. LEXIS 39 (Miss. 1939).

A plaintiff bringing a suit which is thereafter merged into other parties does not entitle defendant to a verdict in the case. Central Nat'l Bank v. Perry, 135 Miss. 445, 100 So. 276, 1924 Miss. LEXIS 62 (Miss. 1924).

It is no defense that the cause of action has been assigned since the beginning of the suit, and is still prosecuted in the name of the assignor. Montgomery v. Handy, 63 Miss. 43, 1885 Miss. LEXIS 9 (Miss. 1885).

8. Rights of assignor and assignee inter se.

A mortgage may be assigned but after the assignment the mortgagee has no authority to enter satisfaction thereon. Brown v. Yarbrough, 130 Miss. 715, 94 So. 887, 1922 Miss. LEXIS 246 (Miss. 1922).

The rights of the assignee cannot be affected by subsequent acts of the assignor. Peck-Hammond Co. v. Williams, 77 Miss. 824, 27 So. 995, 1900 Miss. LEXIS 41 (Miss. 1900).

9. Payment or settlement of claim after assignment.

A party is not protected in paying a claim which he knows has been assigned to another person unless he makes the payment to the person who owns it. Wells v. Edwards H. & C. R. Co., 96 Miss. 191, 50 So. 628, 1909 Miss. LEXIS 42 (Miss. 1909).

10. Evidence.

Where the nominal plaintiff assigns the cause of action pending the suit to the usee, evidence of an independent antecedent contract between the defendant and the usee is not admissible. Yazoo & M. V. R. Co. v. S. B. Wilson & Co., 83 Miss. 224, 35 So. 340, 1903 Miss. LEXIS 36 (Miss. 1903).

11. Parties.

Suit at law on chose in action must be brought in the name of legal owner, but in equity equitable owner may be joined. Cottrell v. Smith, 146 Miss. 837, 112 So. 465, 1927 Miss. LEXIS 251 (Miss. 1927).

The assignee of part of a claim is a necessary party to a suit for personal injuries to the assignor. A. K. McInnis Lumber Co. v. Rather, 111 Miss. 55, 71 So. 264, 1916 Miss. LEXIS 239 (Miss. 1916).

12. Limitation of actions.

Amendment to action by assignee to include assignor creates no new cause of action for consideration in determining limitations. Cottrell v. Smith, 146 Miss. 837, 112 So. 465, 1927 Miss. LEXIS 251 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments §§ 98- 112.

2 Am. Jur. Pl & Pr Forms (Rev), Assignments, Forms 71-77 (Parties to actions; substitution).

2B Am. Jur. Legal Forms 2d, Assignments §§ 25:139 et seq. (choses in action; assignments arising out of contract); §§ 25:159 et seq. (choses in action; assignments arising out of tort).

CJS.

6A C.J.S., Assignments §§ 123-152.

Law Reviews.

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.

1981 Mississippi Supreme Court Review; Insurance. 52 Miss. L. J. 445, June 1982.

§ 11-7-5. Assignee’s action not prejudicial by set-off.

A setoff or other defense existing under Section 11-7-3 at the time of or before notice of the assignment shall not be prejudiced thereby.

HISTORY: Codes, 1857, ch. 61, art. 42; 1871, § 670; 1880, § 1507; 1892, § 660; 1906, § 717; Hemingway’s 1917, § 496; 1930, § 506; 1942, § 1449.

Cross References —

Limitation of setoff, see §15-1-71.

Defenses available with assignment of negotiable instruments, see §75-13-1.

JUDICIAL DECISIONS

1. In general.

Assignment of claim against county for purchase price of tractor sold was valid without consent of county, though there was element of guaranty or warranty. People's Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192, 1930 Miss. LEXIS 187 (Miss. 1930).

Defendant, after assignee of account was substituted as plaintiff, was not entitled to recover over against him on counterclaim. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

Assignee of account could not, after defendant in action thereon filed setoff, be substituted as plaintiff over objection. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

A judgment cannot be set off against another judgment so as to satisfy that part of it equitably assigned to the attorneys as compensation for their services in recovering it. Harris v. Hazlehurst Oil-Mill & Mfg. Co., 78 Miss. 603, 30 So. 273, 1900 Miss. LEXIS 183 (Miss. 1900).

And this is true, though the assignment of the account was not in writing. Ashby v. Carr, 40 Miss. 64, 1866 Miss. LEXIS 50 (Miss. 1866); Hunt & Vaughan v. Shackleford, 55 Miss. 94, 1877 Miss. LEXIS 110 (Miss. 1877).

In a suit by an indorsee of a note against the maker, the latter will be entitled to use a setoff on open account which was acquired by assignment before suit. Phipps v. Shegogg & Son, 30 Miss. 241, 1855 Miss. LEXIS 92 (Miss. 1855).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments § 108.

§ 11-7-7. Transfer of chose in action after filing.

Any chose in action or any interest therein, after suit has been filed thereon, may be sold or assigned the same as other property, whether such claim or any interest therein was heretofore assignable under the laws of this state or not. Such sale shall be evidenced by writing signed and acknowledged by the party making the same, which shall be filed with the papers of such suit. After such filing, it shall be the duty of the clerk, in whose office such papers are kept, to make a minute of such sale or transfer on the trial docket where the suit is entered, giving briefly the substance thereof, for which he shall be entitled to a fee of Twenty-five Cents (25¢), to be paid by the party applying therefor. Such transfer when so made and dealt with shall be valid and binding upon all persons thereafter dealing with such claim, whether they have actual notice thereof or not.

HISTORY: Codes, 1906, § 718; Hemingway’s 1917, § 498; 1930, § 507; 1942, § 1450; Laws, 1902, ch. 69; Laws, 1991, ch. 573, § 19, eff from and after July 1, 1991.

Cross References —

Executions and attachments on choses in action, see §§13-3-127,13-3-133,13-3-135,13-3-147.

Assignments generally, see §75-13-1.

JUDICIAL DECISIONS

1. In general.

2. Bad faith claim against insurance company.

1. In general.

Liability for corporate debt was limited to those officers and directors who were actively involved in the control and management of the corporation, and the president’s testimony at trial made it clear he was involved in the control and management of the corporation; however, where there was no proof of any assignment to the president by the corporation of any chose in action as contemplated under Miss. Code Ann. §11-7-7, the president had no standing to pursue the action on behalf of the corporation. Consequently, although the president, individually, could have been held liable for the corporate torts committed by the corporation, he had no authority to sue on a contract that belonged to the corporation; accordingly, all claims brought by the corporation and the president were dismissed. 4 H Constr. Corp. v. Superior Boat Works, Inc., 659 F. Supp. 2d 774, 2009 U.S. Dist. LEXIS 83183 (N.D. Miss. 2009), aff'd, 579 Fed. Appx. 278, 2014 U.S. App. LEXIS 16558 (5th Cir. Miss. 2014).

When a 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).

Trial court’s denial of a church’s motion to quash a writ of execution upon its chose of action against a third party was affirmed, as nothing in Miss. Code Ann. §11-7-7 excluded writs of execution from the manner in which a chose in action could be transferred. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

Miss. Code Ann. §11-7-7 does not prohibit a chose in action from being subject to a writ of execution. Maranatha Faith Ctr., Inc. v. Colonial Trust Co., 904 So. 2d 1004, 2004 Miss. LEXIS 1405 (Miss. 2004).

The right to sue for trespass to property was assignable to a subsequent purchaser of property, such that the grantee had the same rights as the prior owner; absent some other doctrine, buyers could bring suit for the claim originally possessed by the railroad. Flowers v. McCraw, 792 So. 2d 339, 2001 Miss. App. LEXIS 325 (Miss. Ct. App. 2001).

Attorney who, under oral contract for contingent fee, prosecuted suit for unliquidated damages to judgment and received from client, filed in the cause, an assignment in writing of that interest in the judgment, had a superior interest in judgment and took precedence to judgment debtor’s claim of right of setoff, although at the time suit was commenced and when judgment was rendered, attorney’s client was indebted to defendant in such suit in a larger sum than his judgment. Stribling Motor Co. v. Smith, 195 Miss. 547, 15 So. 2d 364, 1943 Miss. LEXIS 149 (Miss. 1943).

This section [Code 1942, § 1450], requiring that assignment of chose in action be in writing, filed with papers, held not in conflict with Code 1942, § 1448, authorizing institution or continuance of action in assignor’s name or substitution of assignee as plaintiff on his application. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

Landowner’s right to recover for cutting timber is assignable; deed conveying land with all rights of action accrued or to accrue, for depredation and trespasses, assigned right of action for wrongful cutting timber prior thereto. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

Satisfaction of judgment for damage to contents of building is bar to other action by same person for damage to buildings from same negligent act, though plaintiff had assigned his interest in second action, where notice of assignment was not given or filed as required by this section [Code 1942, § 1450]. Fewell v. New Orleans & N. E. R. Co., 144 Miss. 319, 109 So. 853, 1926 Miss. LEXIS 364 (Miss. 1926).

This statute [Code 1942, § 1450] does not apply to the assignment of a judgment but applies to assignment before judgment. Pigford Grocery Co. v. Wilder, 116 Miss. 233, 76 So. 745, 1917 Miss. LEXIS 287 (Miss. 1917).

2. Bad faith claim against insurance company.

A claim against an insurance company for bad faith is assignable. Kaplan v. Harco Nat'l Ins. Co., 708 So. 2d 89 (Miss. Ct. App.), op. withdrawn, 716 So. 2d 673, 1998 Miss. App. LEXIS 139 (Miss. Ct. App. 1998).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Assignments §§ 66- 68.

2 Am. Jur. Pl & Pr Forms (Rev), Assignments, Forms 71-77 (Parties to actions; substitution).

CJS.

6A C.J.S., Assignments §§ 123-152.

§ 11-7-9. Action for seduction of a woman.

An unmarried female may prosecute an action for her own seduction, and recover damages.

HISTORY: Codes, 1880, § 1508; 1892, § 661; 1906, § 719; Hemingway’s 1917, § 499; 1930, § 508; 1942, § 1451.

Cross References —

Crime of seduction, see §97-29-55.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur., Seduction § 80.

70 Am. Jur. 2d, Seduction § 33.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Rules 4, 5, 7-11, and 15. 52 Miss. L. J. 3, March 1982.

§ 11-7-11. Action for seduction of a child.

A parent may bring an action for the seduction of a child, although such child be not living with nor in the service of the plaintiff, and though there be no loss of service; but a recovery by the parent or child shall bar any other action for the same cause.

HISTORY: Codes, 1880, § 1509; 1892, § 662; 1906, § 720; Hemingway’s 1917, § 500; 1930, § 509; 1942, § 1452; Laws, 1988, ch. 413, eff from and after passage (approved April 23, 1988).

Cross References —

Crime of seduction, see §97-29-55.

JUDICIAL DECISIONS

1. In general.

Father was entitled to damages for humiliation and wounded feelings caused by seduction of daughter. Stone v. Bang, 153 Miss. 892, 122 So. 95, 1929 Miss. LEXIS 97 (Miss. 1929).

Defendant was guilty of seduction, if female between twelve and eighteen consented to sexual intercourse as result of defendant’s promise to give her money, clothes, etc. Stone v. Bang, 153 Miss. 892, 122 So. 95, 1929 Miss. LEXIS 97 (Miss. 1929).

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parent and Child §§ 115 et seq.

70 Am. Jur. 2d, Seduction §§ 33, 34, 36.

22 Am. Jur. Pl & Pr Forms (Rev), Seduction, Forms 3-6 (Complaint, petition, or declaration for seduction in action by father or mother).

§ 11-7-12. Civil penalty recoverable for violation of bad check statute; applicability to electronic transfers of funds.

  1. If a check, draft or order is made, drawn, issued, uttered or delivered in violation of Section 97-19-55, the payee, endorser or his assignee shall be entitled to collect, in addition to the face amount of the check, draft or order, a service charge of Forty Dollars ($40.00).
  2. In any civil action founded on a check, draft or order made, drawn, issued, uttered or delivered in violation of Section 97-19-55, the plaintiff, if he be a payee, endorser, holder or assignee, shall be entitled to recover, in addition to the face amount of the check, draft or order, damages in the following amount:
    1. If the amount of the check, draft or order is up to and including Twenty-five Dollars ($25.00), then the additional damages shall be:
      1. A service charge of Thirty Dollars ($30.00); and
      2. In the event suit is filed by a licensed attorney, reasonable attorney’s fees as determined by the judge.
    2. If the amount of the check, draft or order is above Twenty-five Dollars, then the additional damages shall be:
      1. A service charge of Forty Dollars ($40.00); and
      2. In the event suit is filed by a licensed attorney, reasonable attorney’s fees as determined by the judge.
    3. The payee, endorser, holder or assignee of a check, draft or order may claim in a single civil action all checks, drafts or orders made, drawn, issued, uttered or delivered in violation of Section 97-19-55 by a single drawer without regard to venue or the identity or number of payees on those instruments.
    4. The provisions of this section shall also apply to electronic transfers of funds.

HISTORY: Laws, 1976, ch. 454; Laws, 2000, ch. 364, § 1; Laws, 2004, ch. 374, § 2; Laws, 2007, ch. 451, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2004 amendment substituted “service charge of Forty Dollars ($40.00)” for “service charge of Thirty Dollars ($30.00)” at the end of (1).

The 2007 amendment inserted “holder or assignee” preceding “shall be entitled” in (2); in (2)(a), added (ii) and divided the former first paragraph into present (a) and (a)(i) by inserting the colon following “damages shall be” and inserting “(i) A service charge of” preceding “Thirty Dollars”; rewrote (2)(b) through (2)(d); and made a minor stylistic change.

Cross References —

Duty to establish accounts to facilitate handling of bad checks paid into the state treasury, see §7-9-12.

Bad checks generally, see §97-19-55 et seq.

JUDICIAL DECISIONS

1. Fraudulent intent requirement.

In wife’s contempt action against former husband, the wife presented no evidence that the husband issued the checks for child support, which the wife did not present to the bank for months, with fraudulent intent; therefore, there was no justification for the chancellor to award any statutory damages under Miss. Code Ann. §11-7-12 regarding the checks that were returned for insufficient funds, and for which the husband’s efforts to make good on the amounts were rebuffed by the wife. Broome v. Broome, 832 So. 2d 1247, 2002 Miss. App. LEXIS 858 (Miss. Ct. App. 2002).

OPINIONS OF THE ATTORNEY GENERAL

A tax collector, or a tax assessor and tax collector, may use the provisions of the statute to collect a bad check and obtain a civil penalty therefor. Ross, May 15, 1998, A.G. Op. #98-0261.

RESEARCH REFERENCES

ALR.

Constitutionality of “bad check” statute. 16 A.L.R.4th 631.

§ 11-7-13. Actions for injuries producing death.

Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.

Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or interested party may bring an action pursuant to the provisions of this section outside an estate, regardless of whether there are real or personal assets of an estate. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

The list of persons in this section who may bring a wrongful death action is exclusive and only those persons shall be considered interested parties who are entitled to bring an action under this section.

A defendant in an action under this section is authorized within ninety (90) days of filing an answer, to request that the plaintiff initiate the process of determining heirs. Such determination must be resolved before commencement of trial.

HISTORY: Codes, 1857, ch. 61, art. 48; 1871, § 676; 1880, § 1510; 1892, § 663; 1906, § 721; Hemingway’s 1917, § 501; 1930, § 510; 1942, § 1453; Laws, 1908, ch. 167; Laws, 1922, ch. 229; Laws, 1952, ch. 248; Laws, 1958, ch. 285, § 1; Laws, 1977, ch. 435; Laws, 1981, ch. 529, § 6; Laws, 1993, ch. 302, § 4; Laws, 2002, 3rd Ex Sess, ch. 4, § 11; Laws, 2004, ch. 515, § 1; Laws, 2013, ch. 548, § 1, eff from and after passage (approved Apr. 25, 2013); Laws, 2018, ch. 340, § 1, eff from and after July 1, 2018.

Editor’s Notes —

Laws of 1958, ch. 285, § 3, provides as follows:

“SECTION 3. This Act shall apply where the death occurs on or after the passage of this Act; it shall be immaterial that the rights conferred herein did not exist at the time of the adoption or were not conferred by the decree of adoption; and the adopting parent or adopting parents shall have and possess the rights and powers which have been added by this Act, automatically by the operation of law.”

Laws of 1981, ch. 529, § 7, provides as follows:

“SECTION 7. Nothing in Section 6 of this act shall be construed as conferring any additional rights or remedies upon illegitimates in wrongful death actions concerning the death of a decedent which occurred prior to July 1, 1981.”

Laws of 1993, ch. 302, § 5, effective July 1, 1993, provides as follows:

“SECTION 5. This act shall take effect and be in force from and after July 1, 1993. Procedural provisions of this act including subsections (1)(a), (b), (c) and (d) of Section 2 [ §11-1-65] shall apply to all pending actions in which judgment has not been entered on the effective date of the act and all actions filed on or after the effective date of the act. All other provisions shall apply to all actions filed on or after July 1, 1994.”

Amendment Notes —

The 2002 amendment, 3rd Ex Sess, ch. 4, at the beginning of the last sentence of the first paragraph inserted “Except as otherwise provided in Section 11-1-69.”

The 2004 amendment inserted “or of any unborn quick child” and “or unborn quick child” throughout the section.

The 2013 amendment added the last two paragraphs.

The 2018 amendment added the second sentence of the fourth paragraph.

Cross References —

Constitutional authority for actions for death of employees, see Miss. Const. Art. 7, §§ 191, 193.

Liability of ships and vessels for wrongful death, see §11-7-175.

Presumption of negligence in case of injury by railroads and motor vehicles, see §13-1-123.

Limitation of action by personal representative of decedent, see §15-1-55.

Exemption of damages for wrongful death from collection by hospital reimbursement commission, see §41-7-95.

Period of retention of hospital records in case of wrongful death, see §41-9-69.

Provisions of this section as effecting exception to what otherwise might constitute consequential damages, see §75-2-715.

Liability of railroads for negligence and mismanagement, see §77-9-435 et seq.

Exemption of judgment from execution for debt, see §§85-3-17,85-3-19.

Effect of final decree of adoption, see §93-17-13.

JUDICIAL DECISIONS

1. In general.

2. Relation to Other Laws.

3. Right of action generally.

4. —Marital misconduct, as affected by.

5. —Enforcement of foreign cause of action.

6. Persons entitled to sue.

7. Persons entitled to recover.

8. Proximate cause.

9. Negligence and contributory negligence.

10. Limitation of actions.

11. Actions in general.

12. —Joinder of actions.

13. —Removal of cause.

14. Pleading.

15. Issues, proof and variance.

16. Parties.

17. Evidence.

18. Questions for jury.

19. Instructions.

20. Execution on judgment.

21. Attorney fees.

22. Damages.

23. —Elements of damages.

24. —Measure of damages.

25. —Amount of damages.

26. —Exemplary or punitive damages.

27. Compromise, settlement and release.

28. Res judicata.

29. Unborn child.

30. Adopted child.

31. Jurisdiction.

32. Collateral source rule.

1. In general.

In a wrongful death action under Miss. Code Ann. §11-7-13, a motion to compel arbitration should have been granted because an arbitration agreement between a doctor and a patient agreement fell under 9 USCS § 2 since it had a nexus to interstate commerce, and there was no procedural unconscionability based on the patient’s inability to read since the language was not complex, the waiver of the right to a trial was in bold and capital letters, the patient signed or initialed on several pages, and there was a time lapse between the signing and the date of a surgery. Cleveland v. Mann, 942 So. 2d 108, 2006 Miss. LEXIS 467 (Miss. 2006).

In a wrongful death suit, as Miss. Code Ann. §11-46-9(1)(m) applied to any non-intentional/non-criminal acts alleged to have been committed upon a deceased inmate by a sheriff and/or his deputies while in the course and scope of their employment, the trial court correctly dismissed claims alleging negligent acts by defendants and properly left an assault claim viable; however, it erred by dismissing other counts that alleged intentional criminal acts, as pursuant to Miss. Code Ann. §§11-46-5(2),11-46-7(2), these claims remained viable under the wrongful death statute, Miss. Code Ann. §11-7-13 (Supp. 2003). Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Wrongful death statute should be given reading most coherent in principle, given entire statutory scheme and other valid rules in field. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

Wrongful death statute creates new and independent cause of action, unknown to common law, in favor of those named therein. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

In wrongful death action, there is no injury, and hence, no cause of action, until death occurs. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Venue in wrongful death action alleging medical malpractice was proper either in county in which patient died some six months after allegedly negligent care was rendered, or in county in which that care was rendered. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Wrongful death statute is strictly construed on appellate review. Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

No statute provides for prejudgment interest on estimated earnings from time of decedent’s death to time of trial, consequently, trial judge would have been correct in denying prejudgment interest on this basis alone, including §11-7-13. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

On a factual showing that landowner neither did nor failed to do anything that breached any duty owed to the invitee, landowner was properly granted a directed verdict in action for the wrongful death of an experienced woodcutter whom he had hired to come onto his premises to fell trees and cut up firewood, and who was fatally injured in the felling of the first tree. Hathorn v. Hailey, 487 So. 2d 1342, 1986 Miss. LEXIS 2454 (Miss. 1986).

Code 1972, §11-7-13 must be considered in pari materia with Code 1972, §§91-7-231,91-7-233, which authorize only a personal representative to sue to recover the assets of the deceased. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

Since the wrongful death statute created a cause of action unknown to the common law, it must be strictly construed. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of his father where the father has not acknowledged the child did not deny equal protection of the laws to an illegitimate son who had not been acknowledged by the deceased. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

Where a prime contractor, after the subcontractor failed to furnish a performance bond, terminated the subcontract and thereafter directed the subcontract work in all particulars, a workman who was killed when struck by a vehicle engaged in performance of the subcontract was an employee of the prime contractor, and the prime contractor was precluded from the recovery of indemnification from the subcontractor for the amount of a settlement in a wrongful death action. C. H. Leavell & Co. v. Doster, 233 So. 2d 775, 1970 Miss. LEXIS 1668 (Miss. 1970).

The wrongful death statute creates an entirely new cause of action for the benefit of the persons named in the act, and the cause of action is not a part of the estate of the decedent. Harvey v. State, 218 So. 2d 11, 1969 Miss. LEXIS 1586 (Miss. 1969).

State law, rather than Death on the High Seas Act, governs the remedies for wrongful deaths occurring on artificial islands and fixed structures erected thereon on the outer Continental Shelf. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d 360, 1969 U.S. LEXIS 3100 (U.S. 1969), but see Herb's Welding v. Gray, 703 F.2d 176, 1983 U.S. App. LEXIS 28741 (5th Cir. 1983).

An action for wrongful death is not derivative. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Since an action under the wrongful death statute against a motorist for the death of a four and a half year old child was not an action by the child’s estate, but was one brought by the administrator on behalf of the surviving heirs named in the statute, the estate of the decedent could not be adversely, beneficially, or otherwise affected thereby, and the motorist was not disqualified as a witness by the dead man’s statute. Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 1958 Miss. LEXIS 365 (Miss. 1958).

Since this section [Code 1942, § 1453] created an action unknown to the common law, the court was not justified in extending its application beyond its terms. Logan v. Durham, 231 Miss. 232, 95 So. 2d 227, 1957 Miss. LEXIS 509 (Miss. 1957).

Where an amendment to the statute provided that if employer fails to secure the payment of workmen’s compensation, the employee or the legal representative has the choice between claiming compensation or suing at law for damages, and in such event neither negligence of fellow servant, assumption of risk, nor contributory negligence can be pleaded, this amendment did not repeal the Workmen’s Compensation Law and reinstate the right to maintain an action for wrongful death of an employee as in existence prior to the original enactment of the statute. Allen v. R. G. Le Tourneau, Inc., 220 Miss. 520, 71 So. 2d 447, 1954 Miss. LEXIS 465 (Miss. 1954).

This section [Code 1942, § 1453] is in derogation of the common law and as such must be strictly construed. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944); Boroughs v. Oliver, 217 Miss. 280, 64 So. 2d 338, 1953 Miss. LEXIS 430 (Miss. 1953).

The statute is not one of survival but creates a new and independent cause of action. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944); Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 1958 Miss. LEXIS 365 (Miss. 1958).

The statute does not cause the deceased’s right of action to survive or be revived, but creates an independent cause of action. Thames v. Mississippi, 117 F.2d 949, 1941 U.S. App. LEXIS 4382 (5th Cir. Miss.), cert. denied, 314 U.S. 630, 62 S. Ct. 63, 86 L. Ed. 506, 1941 U.S. LEXIS 394 (U.S. 1941).

The history of this section [Code 1942, § 1453] is discussed in Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

2. Relation to Other Laws.

Mississippi law, rather than South Carolina law, governed the distribution of settlement funds in a wrongful-death action when a South Carolina resident was killed in a motor-vehicle accident in Mississippi because the personal representative of the decedent’s estate waived the choice-of-law issue by not bringing the issue to the Mississippi trial court’s attention early in the proceedings. Shortie v. George, 233 So.3d 883, 2017 Miss. App. LEXIS 299 (Miss. Ct. App. 2017).

A statutory heir under the descent and distribution statutes (Miss. Code Ann. §§91-1-1 to91-1-11) is not necessarily a listed relative under Mississippi’s wrongful death statute, Miss. Code Ann. §11-7-13, since the listed relatives under the wrongful death statute exclude a decedent’s grandparents, uncles and aunts, each of whom are included in the descent and distribution statute’s definition of “statutory heir.” Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

3. Right of action generally.

Since beneficiaries could have only brought claims the decedent could have brought had the decedent survived, logic required the Mississippi Supreme Court to conclude that the converse was true, in that the decedents could not have brought claims the decedent could not have brought, had the decedent survived; therefore, where a patient signed an arbitration agreement with a doctor prior to surgery, beneficiaries were not able to subsequently file a wrongful death action against the doctor arising out of such surgery. Cleveland v. Mann, 942 So. 2d 108, 2006 Miss. LEXIS 467 (Miss. 2006).

Miss. Code Ann. §11-7-13 did not recognize “contingent” wrongful death claims as to do so would usurp the child’s right to damages to which she would be entitled simply because her relatives anticipated her death earlier than it would naturally occur; therefore, there was no claim upon which relief could be granted, and the trial court was correct to grant a dismissal. In re Brantley v. Brantley, 865 So. 2d 1126, 2004 Miss. LEXIS 184 (Miss. 2004).

While Miss. Code Ann. §11-7-13 (Supp. 2003) allows wrongful death beneficiaries to maintain an action to recover damages as would the decedent if death had not ensued, the action is derivative and the beneficiaries stand in the position of their decedent; thus, where the decedent was a prison inmate who could not have filed an action against the Mississippi Department of Corrections or a prison superintendent because of the immunity granted in Miss. Code Ann. §11-46-9(1)(m), his wrongful death beneficiaries could not maintain a wrongful death action against those defendants. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Heirs of deceased smoker could not recover damages for injuries suffered by smoker during his lifetime in wrongful death action where jury found that cause of death was unrelated to smoker’s lung cancer or chronic obstructive pulmonary disease, but rather was pulmonary embolism caused by complications resulting from treatment for gonorrhea in 1940’s, and heirs did not also assert claim under survival statute. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

Wrongful death action is not part of estate of deceased, and only those individuals listed in wrongful death statute may bring this independent, statutory cause of action. Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

Family members of motorist who was left in coma as result of automobile accident did not have claim under Mississippi law for “loss of filial consortium” similar to wrongful death claim, even though loss they suffered was arguably similar; rather, claim remained one in nature of personal injury, despite severity of injury, as claim by motorist survived through conservator. Moore v. Kroger Co., 800 F. Supp. 429, 1992 U.S. Dist. LEXIS 12526 (N.D. Miss. 1992), aff'd, 18 F.3d 936, 1994 U.S. App. LEXIS 5268 (5th Cir. Miss. 1994).

Mother of decedent was not entitled to bring wrongful death action where decedent was killed when he was struck by car while working on highway project; contention that wrongful death statute controlled over Workers’ Compensation provision which provided that it would be exclusive remedy; also rejected was argument that because mother was not dependent on decedent exclusive remedy provision in death benefit cases did not apply was also rejected, because act intended to provide exclusive remedy growing out of employer-employee relationship, and different result would subject employer in many instances to double liability. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

Wrongful death action may be maintained when unborn child dies after reaching pre-natal age of viability, when destruction of life of its mother does not necessarily mean end of its life also, and when, if separated from its mother, it would be so far matured as human being that it would live and grow mentally and physically as person; if such child dies before birth as result of negligent act of another, action may be maintained under wrongful death statute. Terrell v. Rankin, 511 So. 2d 126, 1987 Miss. LEXIS 2616 (Miss. 1987).

Dismissal of personal injury claims brought by particular plaintiff does not collaterally estop wrongful death action asserted on behalf of family members by plaintiff in representative capacity since party appearing in representative capacity for others is not bound by determination of earlier suit in which he appeared only in individual capacity. Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 1985 U.S. App. LEXIS 23252 (5th Cir. Miss. 1985).

Where the husband of a deceased woman, he being the sole party in interest under §11-7-13, sued and recovered judgment in a court of competent jurisdiction for all damages resulting from his wife’s death against all of the parties jointly and severally liable, and the judgment was paid in full, the cause of action against all parties who were jointly and severally liable for the woman’s death was thereby terminated; accordingly, a subsequent suit by the deceased’s sister, individually and as representative of the heirs and as administratrix of the deceased’s estate, was properly dismissed with prejudice. Campbell v. C & H Transp. Co., 411 So. 2d 1284, 1982 Miss. LEXIS 1911 (Miss. 1982).

In an action to recover for the wrongful death of a boy who was injured after climbing into a newly installed septic tank that had been opened to facilitate an inspection, defendants were entitled to a peremptory instruction relieving them of liability, since the duty owed to the boy as a trespasser or at most as a licensee, was to refrain from willfully or wantonly injuring him; nor was the doctrine of attractive nuisance applicable under these facts since the septic tank was not an inherently dangerous instrumentality. Hughes v. Star Homes, Inc., 379 So. 2d 301, 1980 Miss. LEXIS 1841 (Miss. 1980), overruled in part, Johnson v. Goodson, 267 So.3d 774, 2019 Miss. LEXIS 159 (Miss. 2019).

This section did not authorize a wrongful death claim, based on a warranty theory of liability, against the manufacturer and original seller of the aircraft in which decedent was killed. McCullough v. Beech Aircraft Corp., 587 F.2d 754, 1979 U.S. App. LEXIS 17646 (5th Cir. Miss. 1979).

In a wrongful death action based in part upon the failure of an aircraft seat and harness upon a crash, such failure was regarded as a separate or “second accident” where the alleged defect did not cause or contribute to the initial mishap and did not arise from the intended normal use for which the product was manufactured. Williams v. Cessna Aircraft Corp., 376 F. Supp. 603, 1974 U.S. Dist. LEXIS 8854 (N.D. Miss. 1974).

An action is not maintainable for the wrongful death of one whose right against defendant is limited to the recovery of workmen’s compensation. Evans v. Avery, 272 Ala. 230, 130 So. 2d 373, 1961 Ala. LEXIS 426 (Ala. 1961).

A municipality may be held liable under this statute [Code 1942, § 1453]. City of Corinth v. Gilmore, 236 Miss. 296, 110 So. 2d 606, 1959 Miss. LEXIS 319 (Miss. 1959).

Where a nonresident and a resident were killed in an automobile collision in Mississippi allegedly as the result of the nonresident’s negligence, the heirs of the deceased resident had a cause of action against the personal representative of the deceased nonresident under this section [Code 1942, § 1453], and were creditors of the nonresident’s estate, and upon their petition the chancery court of the county where the nonresident’s death occurred had jurisdiction to grant administration upon the estate of the nonresident. Day v. Hart, 232 Miss. 516, 99 So. 2d 656, 1958 Miss. LEXIS 301 (Miss. 1958).

Where a wife died of injuries sustained in an automobile accident allegedly due to the negligence of her husband, an action was not maintainable against the husband by or on behalf of the deceased’s mother and father and sisters, the remoter class of beneficiaries under this section [Code 1942, § 1453], merely because the preferred beneficiaries, the husband, as tortfeasor, or the unemancipated minor child of the husband and wife, could not maintain the action. Logan v. Durham, 231 Miss. 232, 95 So. 2d 227, 1957 Miss. LEXIS 509 (Miss. 1957).

Under this section [Code 1942, § 1453] it is essential to the maintenance of an action for death by wrongful act that the wrongful act be of such character as would have supported an action by the deceased for his injuries if he had survived. Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434, 1954 Miss. LEXIS 537 (Miss. 1954).

This section [Code 1942, § 1453] is an adaption of Lord Campbell’s Act, which in derogation of the common law gave a cause of action to the executor or administrator of a person whose death had been caused by defendants’ wrongful act, neglect, or default, and extends this right of action to the widow or other appropriate heirs of the deceased when the death has been “caused by any real wrongful or negligent act, or omission, or by [any] unsafe machinery, way or appliances” in cases where the injured party, had he survived, could have maintained an action in respect thereof. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

While the right of a decedent to maintain an action, if he had survived, is a prerequisite to the right of his widow to maintain an action for his death, the initial requirement remains that death must have been caused by a real wrongful or negligent act. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

While the early refinements in the construction of this section [Code 1942, § 1453] were concerned with the definitive scope of “negligence,” involving the propriety of including deliberate or felonious acts, the employment of the term “wrongful” expanded its meaning to include felonious acts, but nowhere in the materials from which this statutory reform was constructed is there found any reference to acts that were wrongful except in the tortious sense. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

The employment of the words “real wrongful” in this section [Code 1942, § 1453] narrows its meaning to an actual and not a nominal or constructive wrong. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

This section [Code 1942, § 1453] does not create a right of action ex contractu by a widow for the death of her husband. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

A widow does not, under this section [Code 1942, § 1453], have a right of action for the death of her husband, caused by eating pie infected with a poisonous substance, grounded upon breach of implied warranty, since the statute applies only to death caused by a wrongful or negligent act. Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So. 2d 791, 1944 Miss. LEXIS 214 (Miss. 1944).

Code of 1892 § 663, as amended by Laws 1898 ch. 65 (Code 1906, § 721) and incorporated above, relates to causes of action antedating the constitution, of liability under the general law of negligence, and in no way to causes of action for injuries inflicted by fellow servants. Hence, it was not repealed or affected by Laws 1898, ch. 66 (since declared unconstitutional in Ballard v. Mississippi Cotton Oil Co. 81 M 507, 34 So 533). Const. § 193, and (Code 1892, § 4056) as amended by Acts 1898 ch. 66, relate exclusively to actions by employees to recover for injuries due to negligence of those fellow servants named therein. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

By the express terms of Laws 1898 ch. 65, incorporated above, it applies to all personal injuries of employees, resulting in death, due to the negligence of the master. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

The right of a parent under this section (Code 1906, § 721) depends on whether the child, had it survived, could have maintained an action for the injury. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

The right of action is independent of that given to the executor and administrator. Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693, 2 So. 537, 1887 Miss. LEXIS 92 (Miss. 1887).

4. —Marital misconduct, as affected by.

The wife’s conduct will not prevent recovery for the death of her husband. Belzoni Hardwood Lumber Co. v. Langford, 127 Miss. 234, 89 So. 919, 1921 Miss. LEXIS 217 (Miss. 1921).

5. —Enforcement of foreign cause of action.

Under this section [Code 1942, § 1453] a minor whose mother was appointed a tutrix for purpose of bringing action under the Louisiana workmen’s compensation law could sue in federal district court for Mississippi district by mother as next friend, to recover damages for father’s death, and Louisiana court’s leave was not required inasmuch as the law of Mississippi was governing. C. J. Peck Oil Co. v. Diamond, 204 F.2d 179, 1953 U.S. App. LEXIS 2412 (5th Cir. Miss. 1953).

Where wrongful death caused in Louisiana, an administrator cannot maintain suit therefor in Mississippi because no right of action is given the administrator in Louisiana. Vicksburg, S. & P. R. Co. v. Williams, 102 Miss. 735, 59 So. 883, 1912 Miss. LEXIS 113 (Miss. 1912).

Where an injury occurs in Louisiana the rights of the parties will be determined by the Louisiana statutes. Runt v. Illinois C. R. Co., 88 Miss. 575, 41 So. 1, 1906 Miss. LEXIS 157 (Miss. 1906).

Where the injury resulting in death occurs in another state having a statute substantially corresponding to ours the remedy may be enforced here. Chicag, S. L. & N. O. R. Co. v. Doyle, 60 Miss. 977, 1883 Miss. LEXIS 50 (Miss. 1883).

6. Persons entitled to sue.

Statute does create tiered categories of wrongful-death beneficiaries, but only as to the right to recover damages, not the right to file the wrongful-death action. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Circuit court did not err by granting the motion of a decedent’s child to be substituted as the plaintiff in the wrongful-death action the decedent’s mother filed and by denying companies’ motion to dismiss for lack of standing because the mother had standing when she filed her wrongful-death suit; an order of priority existed as to who could recover damages but not as to standing. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Statute does create tiered categories of wrongful-death beneficiaries, but only as to the right to recover damages, not the right to file the wrongful-death action. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

Circuit court did not err by granting the motion of a decedent’s child to be substituted as the plaintiff in the wrongful-death action the decedent’s mother filed and by denying companies’ motion to dismiss for lack of standing because the mother had standing when she filed her wrongful-death suit; an order of priority existed as to who could recover damages but not as to standing. Trk v. Myles, 214 So.3d 191, 2017 Miss. LEXIS 77 (Miss. 2017).

An “interested party” is a person who has a relationship to the decedent that is recognized by law and who therefore has suffered a remediable injury (i.e., the invasion of a legally protected interest) by the wrongful deprivation of the decedent’s life at the defendant’s hands. Such a person thus may claim a genuine right of recovery from the decedent’s wrongful death action by seeking damages for his or her injury, and that right gives the claimant a legally sufficient interest in the action to make him or her an interested party under the wrongful death statute. Clark Sand Co. v. Kelly, 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death action, the trial court erred, when considering defendant’s summary judgment motion, in finding that plaintiff was not the decedent’s common law wife because the trial court was not permitted to make such a factual determination at the summary judgment stage. Clark Sand Co. v. Kelly, 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death case in which a circuit court found that the deceased’s girlfriend, who was also his personal representative, had standing to bring the case and a sand company filed an interlocutory appeal of the circuit court’s denial of its motion for summary judgment, the girlfriend did not have standing as an interested party because, at the time she commenced the suit, she did not have a recognized-by-law relationship to the deceased. Her later appointment as executrix did not change that. Clark Sand Co. v. Kelly, 2010 Miss. LEXIS 94 (Miss. Feb. 25, 2010), op. withdrawn, sub. op., 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

In a wrongful death case in which a circuit court found that the deceased’s girlfriend, who was also his personal representative, had standing to bring the case and a sand company filed an interlocutory appeal of the circuit court’s denial of its motion for summary judgment, since, at the time she filed the suit, the girlfriend had not yet been formally appointed executrix of the deceased’s estate, she did not have standing as his personal representative to bring the present action at that time. The personal representative also lacked standing as the deceased’s executrix under the savings statute. Clark Sand Co. v. Kelly, 2010 Miss. LEXIS 94 (Miss. Feb. 25, 2010), op. withdrawn, sub. op., 60 So.3d 149, 2011 Miss. LEXIS 227 (Miss. 2011).

Under Miss. Code Ann. §11-7-13, an “interested party” may not only join a wrongful death action, but may also initiate such an action. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

Pursuant to Miss. Code Ann. §11-7-13, although a grandfather did not qualify as a personal representative or a listed relative under the statute, he was an interested party under the statute because of his relationship as an inheriting heir of the deceased grandchildren, and therefore had standing to bring a wrongful death action. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

Dismissal of a wrongful death suit was proper because the great-nephew lacked standing to institute a wrongful death suit under Miss. Code Ann. §11-7-13, which conferred standing only to a decedent’s spouse, parent, child, or sibling and not to distant relatives; the great-nephew also lacked standing because he was not the administrator of the decedent’s estate when the wrongful death suit was commenced, and standing was to be determined as of the commencement of the action. Delta Health Group, Inc. v. Estate of Pope, 995 So. 2d 123, 2008 Miss. LEXIS 485 (Miss. 2008).

Substitution of a son as the party in a wrongful death case was improper because a patient’s brother lacked standing to bring the action originally; by the time the son filed an amended complaint, the limitations period in Miss. Code Ann. §11-7-13 had expired, and the complaint did not relate back to a nullity, and therefore dismissal was warranted. Tolliver ex rel. Wrongful Death Beneficiaries of Green v. Mladineo, 987 So. 2d 989, 2007 Miss. App. LEXIS 467 (Miss. Ct. App. 2007).

Where defendant nursing home filed for Chapter 11 bankruptcy protection, the trial court did not err by dismissing a wrongful death suit against the nursing home brought on behalf of a deceased patient’s beneficiaries. The stipulation exempting the wrongful death suit from the bankruptcy did not name decedent’s beneficiaries; they were precluded from bringing suit. Estate of Perry v. Mariner Health Care, Inc., 927 So. 2d 762, 2006 Miss. App. LEXIS 24 (Miss. Ct. App. 2006).

Defendants’ motion for summary judgment was granted in a niece’s action pursuant to Miss. Code Ann. §11-7-13 to recover for the wrongful death of her great-uncle where (1) defendants alleged that the niece had no standing to bring the suit because she was not among the class of individuals permitted to bring a wrongful death suit by virtue of a blood relationship to the decedent and that she was not a representative of the great-uncle’s estate because no estate had ever been opened; (2) in response to defendants’ motion, the niece argued only that she should be permitted to amend her complaint to substitute the real party in interest; and (3) amendment could not be permitted just three weeks before trial because defendants would have been prejudiced thereby, and further, because the niece had stated that the great-uncle had no other living blood relatives, standing would still be lacking. Austin v. Mariner Health Care, Inc., 226 F.R.D. 548, 2005 U.S. Dist. LEXIS 8768 (N.D. Miss. 2005).

Wrongful death statute does not provide mechanism to allow courts to bypass statutory order of beneficiaries so that one statutory beneficiary, more removed from deceased under statute yet emotionally closer to deceased, can bring action over proper statutory beneficiary; it is possible that at times best relative to bring wrongful death action, because of his closeness to deceased, might not be relative allowed by statute to bring such action. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Decedent’s mother, sister, and brothers are not proper beneficiaries where decedent was survived by minor children, despite fact that children had been adopted by their paternal aunt prior to decedent’s death, since law permits adopted children to inherit both through their adoptive parents and natural parents. Fillingame v. Patterson, 704 F. Supp. 702, 1988 U.S. Dist. LEXIS 15575 (S.D. Miss. 1988).

It is clearly established in Mississippi case law that parent is immune to tort suit by his unemancipated minor child, and therefore minor child cannot bring action against father who shot and killed his wife, child’s mother; Parental Immunity Doctrine is not affected by case holding that spousal immunity had ceased to exist when it was destroyed by intentional killing of spouse. Veselits v. Veselits, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

Unemancipated minor child under legal guardianship of grandmother cannot maintain, through grandmother, wrongful death action against her natural father where natural father was convicted of manslaughter for death of wife and natural mother of minor, as there is still mutual love and affection shared by father and daughter, father has not abandoned child, and there exists father’s legal duty of support, together with mutual rights of heirship between father and daughter. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

Illegitimate child has right to inherit in father’s wrongful death claim, but such claim must be asserted and established by clear and convincing evidence under §§91-1-27 and91-1-29. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Surviving adoptive brothers and sisters of child killed in automobile collision have right to bring suit under Mississippi wrongful death statute (§11-7-13), to exclusion of natural brothers and sisters of adoptive child. McLemore ex rel. McLemore v. Gammon, 468 So. 2d 84, 1985 Miss. LEXIS 2070 (Miss. 1985).

The son of a pedestrian who was killed when struck by a vehicle is a proper person to prosecute a wrongful death action for and on behalf of himself, the other wrongful death beneficiaries of the decedent, and the decedent’s personal representative. Hornburger v. Baird, 508 F. Supp. 84, 1980 U.S. Dist. LEXIS 16076 (N.D. Miss. 1980).

Decedent’s mother had no standing to bring a wrongful death action under §11-7-13, even though decedent’s will named her as executrix of his estate and sole primary beneficiary, where decedent left surviving him his wife, who was injured in the same accident and died approximately 30 minutes after her husband; a cause of action accrued to the wife even though she survived decedent for only a few minutes, and this cause of action was an asset in her estate, upon which it was entitled to sue pursuant to §91-7-233; furthermore, decedent’s will could not circumvent the wrongful death statute, which created a new and independent cause of action in favor of those named in the statute, and recovery under the statute would become an asset of decedent’s estate only if none of the statutory heirs had survived him. Partyka v. Yazoo Development Corp., 376 So. 2d 646, 1979 Miss. LEXIS 2374 (Miss. 1979).

The administratrix or the heirs, but not both, may bring suit for wrongful death pursuant to Code 1942, § 1453. Jones v. Steiner, 481 F.2d 392, 1973 U.S. App. LEXIS 8896 (5th Cir. Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by one of such persons, there can only be one suit for the benefit of all entitled to share in the distribution, and the damages recoverable in such suit are punitive damages, pain and suffering of the deceased and damages that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If a deceased is not survived by husband, wife, child, mother, father, brother or sister, suit should be brought by the personal representative for all damages recoverable under the statute, and any sum recovered in such suit is subject to the debts and liabilities of the deceased, and any balance remaining is subject to general distribution. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damage to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

Since the legislature studiously avoided any mention of a first cousin as a dependent, beneficiary, or representative of the deceased who could bring an action for wrongful death, where the deceased was a widow and left no children, no father, no mother, no brother and no sister, only the executrix could bring an action as the personal representative of the deceased. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Mississippi’s wrongful death statute which does not permit an illegitimate child to sue for or recover damages for the wrongful death of the father, where the father has not acknowledged the child, does not deny an illegitimate child who had not been acknowledged by the deceased equal protection of the laws, in view of the facts that it is a simple matter to prove the maternity of an illegitimate child, but it is infinitely more complex and difficult to prove paternity, and in Mississippi the requirements are simple and easy for a father to legitimize his child under the law. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

An adopting parent has a right to bring an action for the wrongful death of his adopted infant child. Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So. 2d 900, 1964 Miss. LEXIS 469 (Miss. 1964).

In the wrongful death statute there is no expression indicating a legislative intent to abrogate the rule that a minor may not sue a parent in tort. Durham v. Durham, 227 Miss. 76, 85 So. 2d 807, 1956 Miss. LEXIS 656 (Miss. 1956).

Where wife died in an automobile accident as a result of the negligent operation of vehicle by her husband, she could not have sued the husband in tort even if she had survived. Durham v. Durham, 227 Miss. 76, 85 So. 2d 807, 1956 Miss. LEXIS 656 (Miss. 1956).

Administratrix has the right to bring a suit against the city for wrongful death of a child. City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So. 2d 368, 1954 Miss. LEXIS 664 (Miss. 1954).

Prior to the 1958 amendment it had been held that under the wrongful death statute, the word parent meant the natural father or mother of the child, and the adoptive parents had no right to sue for the wrongful death of an adopted child. Boroughs v. Oliver, 217 Miss. 280, 64 So. 2d 338, 1953 Miss. LEXIS 430 (Miss. 1953).

There is no distinction in the right to sue as between the personal representative and the survivors and the one who first brings the suit has the right to prosecute and maintain it to a conclusion. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Under the statutes the right of action is in the survivors, to be asserted by the personal representative for the benefit of all persons entitled to recover, or by such survivors, and the cause of action is not abated by the death of such survivors. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Where the daughter sued her stepfather for wrongfully causing death of her mother, the fact that the mother had she lived could not sue the step-father for assault, does not affect the daughter’s right to maintain an action. Deposit Guaranty Bank & Trust Co. v. Nelson, 212 Miss. 335, 54 So. 2d 476, 1951 Miss. LEXIS 455 (Miss. 1951), overruled, Burns v. Burns, 518 So. 2d 1205, 1988 Miss. LEXIS 18 (Miss. 1988).

Decree in proceeding for appointment of administratrix and contract with attorney on part of administratrix for prosecution of death action can have no effect on right of widow and children to institute and maintain suit. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

As between widow and children on one hand and administratrix or personal representative on the other, one who first brings death action has right to prosecute and maintain it to conclusion. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

This cause of action for wrongful death does not pass to trustee in bankruptcy. Dent v. Mendenhall, 139 Miss. 271, 104 So. 82, 1925 Miss. LEXIS 137 (Miss. 1925).

While a suit is pending by a personal representative, the widow has no right to sue. J. J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11, 1922 Miss. LEXIS 105 (Miss. 1922).

An employee of a railroad company engaged in interstate commerce cannot recover under this section [Code 1942, § 1453].His rights are controlled by the federal statute. New Orleans, M. & C. R. Co. v. Jones, 111 Miss. 852, 72 So. 681, 1916 Miss. LEXIS 410 (Miss. 1916).

A suit for personal injuries may be revived after the death of the injured party in the name of his administratrix who may in that suit recover such damages as he could have recovered if living and she may thereafter sue for her husband’s negligent death, but the second suit must not embrace damages previously sued for. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

A suit by the widow and children for the death of the father precludes the administratrix from recovering damages for the same injury. Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 1907 Miss. LEXIS 213 (Miss. 1907), aff'd, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910).

It is competent for the legislature, as was done in Laws 1898, ch. 66, to extend the remedy provided by Const. § 193, so as to authorize actions by others than the legal or personal representatives of the person injured. Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, 1901 Miss. LEXIS 108 (Miss. 1901).

An illegitimate daughter cannot sue for the death of another illegitimate daughter. Illinois C. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753, 1900 Miss. LEXIS 59 (Miss. 1900).

An action can be maintained under Code 1906, § 721 by the mother, a sole surviving parent, for the death of her son, an employee, because of negligence of the railroad company in failing to provide safe machinery and appliances, such negligence being that of the company itself, and not the negligence of a co-employee. The ground of liability existed before the Constitution of 1890 and is wholly independent of it. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

It is only where an employee is killed through the negligence of a fellow servant that the action must be brought by the personal representative under Const. § 193. White v. Louisville, N. O. & T. R. Co., 72 Miss. 12, 16 So. 248, 1894 Miss. LEXIS 73 (Miss. 1894).

Independently of the statute, the mother, being the only surviving parent, may maintain a suit for injuries resulting in the death of an infant son, for the time between the injury and death. Natchez, J. & C. R. Co. v. Cook, 63 Miss. 38, 1885 Miss. LEXIS 8 (Miss. 1885).

7. Persons entitled to recover.

Chancellor properly determined that a mother was a wrongful-death beneficiary of a deceased child because the mother was not married to the child’s natural father at the time of his birth, and accordingly, the child would be considered an illegitimate child. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Chancellor erred in finding that a deceased child’s half-sister was a wrongful death beneficiary and heir-at-law of the child because the record contained no evidence to show that the half-sister was conceived and viable, and, therefore, “living” at the time of the child’s death; more than two years after the child’s death, the half-sister was approximately one year old, and thus, calculations showed that she was not conceived or possibly in existence at the time of the child’s death. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Deceased child’s father could not recover wrongful death benefits from the child because the father failed to establish the requirements of Miss. Code Ann. §91-1-15; the father never met child or introduced the child to his family, he was not listed on the child’s birth certificate, he neglected to support the child, and he denied paternity and challenged the mother’s efforts to obtain child support and social security benefits from him. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Chancellor did not err in determining that a father’s children could not recover wrongful death benefits from his deceased child because the father did not meet the requirements of Miss. Code Ann. §91-1-15 (3)(a)-(c); the deceased child’s sole wrongful death beneficiary was his mother, and she was entitled to the settlement proceeds deriving from his wrongful death. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Trial court properly determined that a child was not a wrongful-death beneficiary of the decedent because, while the decedent signed the child’s birth certificate, supported her, and participated in her life for eight years, genetic testing before his death established that he was not the child’s father, the mother made no claim that the child was his heir, and the Wrongful Death Statute did not provide a cause of action for in loco children. In re Estate of Smith, 130 So.3d 508, 2014 Miss. LEXIS 55 (Miss. 2014).

Chancery court properly divided insurance settlement proceeds equally among all the wrongful death beneficiaries, which included the decedent’s three half-siblings, because with respect to priority of beneficiaries within the same class, no distinction existed between kindred of whole or half-blood. In re Estate of Eubanks, 197 So.3d 878, 2014 Miss. App. LEXIS 35 (Miss. Ct. App. 2014), aff'd in part and rev'd in part, 197 So.3d 861, 2015 Miss. LEXIS 83 (Miss. 2015).

Pursuant to Miss. Code Ann. §11-7-13, a grandfather had standing to bring a wrongful death suit as an interested party from the moment of his grandsons’ deaths, but he gained the ability to recover on behalf of the estates only after those estates came into existence and he was appointed administrator. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

There was no merit to the Georgia relatives’ argument that the decedent was an illegitimate child so as to preclude her father’s kindred from qualifying as wrongful death beneficiaries; application of the wrongful death statute provides that the decedent’s wrongful death beneficiaries included all five of her half-siblings, as well as her mother, and even though the decedent’s half-siblings on her father’s side never had any contact with her, they were still statutorily entitled to their respective shares of the decedent’s estate. Ray v. Ray, 963 So. 2d 20, 2007 Miss. App. LEXIS 512 (Miss. Ct. App. 2007).

Mississippi wrongful death statute provides for the recovery of all the wrongful death beneficiaries in a single lawsuit; thus, when any person statutorily entitled to do so files a wrongful death action, that action enures to the benefit of all parties entitled to recover for the death. Under this scheme, though a minor beneficiary would be disabled from instigating the one suit due to infancy, a personal representative of the deceased or an adult beneficiary could recover on behalf of the minor during the minor’s disability. Anderson v. R & D Foods, Inc., 913 So. 2d 394, 2005 Miss. App. LEXIS 294 (Miss. Ct. App. 2005).

Where a decedent was allegedly injured by medication during her life, and allegedly died from it, the estate administrator was to assert both a wrongful death action and a survival action against the drug manufacturer; if the jury found that the drug caused the decedent’s death, then the recovery belonged to the wrongful death heirs. If the jury found that the drug did not cause the death, the estate could recover for any personal injuries caused by the drug, and the decedent’s ex-husband could recover from the estate amount he was entitled to under the decedent’s holographic instrument. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

Because a wrongful death claim accrued at death, a decedent could not have assigned it – or the personal injury component of the wrongful death claim that survived her death pursuant to Miss. Code Ann. §11-7-13 – to her ex-husband under Miss. Code Ann. §11-7-3. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

Neither the father of an illegitimate child nor an illegitimate half-brother could recover for the wrongful death of the child where the father never met the child, failed to support the child, and failed to acknowledge the child as his own during the child’s lifetime, notwithstanding that he did not receive the results of a blood test that established his paternity until just four days before the child’s death. In re Estate of Patterson v. Patterson, 798 So. 2d 347, 2001 Miss. LEXIS 11 (Miss. 2001).

Under wrongful death statute, adopted child was wrongful death beneficiary of his natural father; right to bring wrongful death action for natural father’s death was not terminated at time of adoption. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Inheritance laws of Mississippi, where decedent’s estate was located, rather than law of Louisiana, pursuant to which decedent’s natural child was adopted, applied in determining whether child was wrongful death beneficiary. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Where wrongful death action and action against uninsured motorist coverage for same death are simultaneously pending, uninsured motorist coverage is source of funds from which wrongful death heir who controls prosecution of wrongful death action may satisfy any judgment recovered on behalf of all wrongful death heirs; therefore first wrongful death plaintiff will not be preempted from choosing trial tactics or electing remedies by another wrongful death heir; consolidation of two such suits for purpose of ordering settlement is appropriate. Rampy ex rel. Rampy v. Austin, 718 F. Supp. 556, 1989 U.S. Dist. LEXIS 8463 (S.D. Miss. 1989).

Biological father entitled to inherit from illegitimate child is entitled to share in recovery in wrongful death action. Burdette v. Crump, 472 So. 2d 959, 1985 Miss. LEXIS 2142 (Miss. 1985).

The daughter of a deceased insured was also an insured entitled to recover uninsured motorist benefits where both of the policies at issue defined the term “insured” to include any person entitled to recover damages and where the daughter, under the provisions of this section, would be entitled to maintain a wrongful death action for the death of her mother. Pearthree v. Hartford Acci. & Indem. Co., 373 So. 2d 267, 1979 Miss. LEXIS 2267 (Miss. 1979).

The legislature intended that, if there were no surviving heirs as specifically named and listed in the wrongful death statute, the damages recovered in a wrongful death action would become an asset of the estate to be used as any other asset in the payment of the “just debts of the estate” and then any residue to be distributed according to the last will and testament of the deceased, if there were a will, or under the statute of descent and distribution if there were no will, and where the nearest surviving relatives of the decedent were eleven first cousins, the net proceeds recovered in a wrongful death action were to be distributed to the sole residuary legatee under the last will and testament of the decedent. Smith v. Garrett, 287 So. 2d 258, 1973 Miss. LEXIS 1328 (Miss. 1973).

Under Mississippi’s wrongful death statute, an illegitimate child cannot sue for or recover damages for the wrongful death of his father, where the father has not acknowledged the child in any way recognized by Mississippi law. Sanders v. Tillman, 245 So. 2d 198, 1971 Miss. LEXIS 1362 (Miss. 1971).

Two minor children who, after the death of their mother, had been adopted by their paternal grandparents at the behest of the father who continued to contribute to their support, were persons entitled to bring an action for the wrongful death of the father. Alack v. Phelps, 230 So. 2d 789, 1970 Miss. LEXIS 1562 (Miss. 1970).

An heir cannot recover under this section [Code 1942, § 1453] unless the deceased himself could have recovered had he not been killed. Market Ins. Co. v. United States, 415 F.2d 459, 1969 U.S. App. LEXIS 10886 (5th Cir. Miss. 1969).

Where the plaintiffs’ evidence made a jury issue of whether as a result of the defendants’ intentional torts in the illegal, improper, and perverted use of process for an ulterior motive or purpose, the decedent acted under an irresistible impulse and committed suicide, he would, had he lived, have a good cause of action against the defendants, and under the wrongful death statute his widow and children are entitled to recover damages which decedent could have recovered. s State use of Richardson v. Edgeworth, 214 So. 2d 579, 1968 Miss. LEXIS 1316 (Miss. 1968).

Husband’s claim for medical expenses and loss of services of wife sustaining personal injuries survives, but that claim for loss of companionship and consortium does not. Scott v. Munn, 245 Miss. 120, 146 So. 2d 564, 1962 Miss. LEXIS 537 (Miss. 1962).

An employer or insurer paying workmen’s compensation for the death of an employee is entitled to share in the proceeds of a settlement of a claim against a third party tortfeasor for causing the employee’s death only where the beneficiary of the death action is also a workmen’s compensation beneficiary. United States Fidelity & Guaranty Co. v. Higdon, 235 Miss. 385, 109 So. 2d 329, 1959 Miss. LEXIS 440 (Miss. 1959).

Under this statute [Code 1942, § 1453], whichever statutory beneficiary brings an action for wrongful death, the proceeds belong to those entitled as if they had all been named as plaintiffs. Thames v. Mississippi, 117 F.2d 949, 1941 U.S. App. LEXIS 4382 (5th Cir. Miss.), cert. denied, 314 U.S. 630, 62 S. Ct. 63, 86 L. Ed. 506, 1941 U.S. LEXIS 394 (U.S. 1941).

That one statutory beneficiary is person charged as defendant in death action, held not to prevent proportional recovery by other beneficiaries. Nosser v. Nosser, 161 Miss. 636, 137 So. 491, 1931 Miss. LEXIS 286 (Miss. 1931).

8. Proximate cause.

Although wrongful death statute provides for recovery of all damages of every kind, which would certainly include lifetime damages, entire claim under statute must fail where heirs fail to prove by preponderance of evidence that death was caused by defendant. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

Circuit Court did not err in granting motion of electric company for directed verdict where: expert testimony did not show that any act or omission of electric company proximately caused or contributed to death of decedent; electric company owed no duty to decedent with respect to electric lines not under its control; electric company neither owned nor controlled wiring beneath which decedent was found; fact that electric meter was moved had nothing to do with accident, where there was no circuit breaker after rewiring, which had been done by someone other than electric company, between transformer and wiring going to place where decedent was killed; and, testimony showed that had breaker been in place and had wiring carrying current from transformer to place where decedent was killed gone through breaker, decedent would still have been shocked when he encountered wires and nothing in that encounter would have tripped breaker in time to save his life. Upton v. Magnolia Electric Power Asso., 511 So. 2d 939, 1987 Miss. LEXIS 2700 (Miss. 1987).

The trauma to decedent’s left breast, received in a collision, which caused the metastasis of a dormant cancerous condition was held to have been the proximate cause of her death three years after the date of the accident. New Orleans & N. R. Co. v. Thornton, 191 So. 2d 547, 1966 Miss. LEXIS 1223 (Miss. 1966).

Where jury is warranted in finding that killing of child could have been avoided by defendant through exercise of reasonable care in keeping constant lookout for pedestrians who may chance to use highway, failure of mother to safeguard safety of child in crossing highway does not constitute direct or proximate cause of its death. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Employer held liable for death of minor fatally burned as result of explosion while cleaning coin-operated machines with gasoline in small room in which there was a gas heater with open flame, notwithstanding immediate activating cause of explosion was running of rat from machine to heater and its return to machine after its fur was ignited. United Novelty Co. v. Daniels, 42 So. 2d 395, 1949 Miss. LEXIS 476 (Miss. 1949).

Where mechanic’s helper died as result of a can of gasoline used in priming an engine being thrown on him by the mechanic after the gasoline therein had become ignited when the engine backfired, the employer would be liable if the proximate cause of the accident was the negligence of the employer in failing to furnish a safe priming can, but would not be liable if the proximate cause was the negligence of the mechanic. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

To establish liability under wrongful death statute, negligence complained of must be proximate or at least directly contributing cause of death, and must be proved as a reasonable probability. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 1935 Miss. LEXIS 6 (Miss. 1935).

If trespasser’s death on railroad tracks resulted from engineer’s failure to give warning signals after becoming aware of trespasser’s danger, trespasser’s administrator was entitled at least to nominal damages. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

A widow cannot sue for injuries resulting in the death of her husband, an engineer, while running his locomotive, unless the proximate cause of his death was such negligence of the company as showed a want of ordinary care. Illinois C. R. Co. v. Woolley, 77 Miss. 927, 28 So. 26, 1900 Miss. LEXIS 49 (Miss. 1900).

9. Negligence and contributory negligence.

In a wrongful death action arising from a 4-car automobile accident, a driver’s negligence in driving at too high a speed on a wet road, with worn tires, and paying insufficient attention to traffic ahead, were foreseeable acts of negligence and are precisely the types of negligence careful drivers of other vehicles must guard against. Thus, the driver’s negligence was not an intervening cause sufficient to cut off the liability of another driver. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615, 1988 Miss. LEXIS 437 (Miss. 1988).

Circuit Court did not err in granting motion of electric company for directed verdict where: expert testimony did not show that any act or omission of electric company proximately caused or contributed to death of decedent; electric company owed no duty to decedent with respect to electric lines not under its control; electric company neither owned nor controlled wiring beneath which decedent was found; fact that electric meter was moved had nothing to do with accident, where there was no circuit breaker after rewiring, which had been done by someone other than electric company, between transformer and wiring going to place where decedent was killed; and, testimony showed that had breaker been in place and had wiring carrying current from transformer to place where decedent was killed gone through breaker, decedent would still have been shocked when he encountered wires and nothing in that encounter would have tripped breaker in time to save his life. Upton v. Magnolia Electric Power Asso., 511 So. 2d 939, 1987 Miss. LEXIS 2700 (Miss. 1987).

The United States, by and through the Corp of Engineers, is liable for the wrongful drowning deaths of swimmers where it was guilty of negligence in its supervision of a dredging operation which created a hazardous condition in the form of a depression surrounded by shallow water. Price v. United States, 530 F. Supp. 1010, 1981 U.S. Dist. LEXIS 10112 (S.D. Miss. 1981), modified, 726 F.2d 1057, 1984 U.S. App. LEXIS 24595 (5th Cir. Miss. 1984).

In a wrongful death action brought by a minor decedent’s parents, defendant was not entitled to contribution from the child’s father, even though he was a joint tortfeasor, where the child could not have sued his father for damages had death not ensued; further, a diminution of damages was available only when the injured party, not a statutory beneficiary, had been contributorily negligent. Hood v. Dealers Transport Co., 472 F. Supp. 250, 1979 U.S. Dist. LEXIS 12939 (N.D. Miss. 1979).

In a medical malpractice action, a general practitioner who failed to enlist the aid of a chest surgeon after a patient had suffered massive hemorrhaging and was coughing up blood failed to conform to the standard of care required of a general practitioner in his locality. Pittman v. Gilmore, 556 F.2d 1259, 1977 U.S. App. LEXIS 12177 (5th Cir. Miss. 1977).

Defendants failed to discharge their duty to use reasonable and ordinary care to provide protection for minor children playing at or near a motel swimming pool where there was no lifeguard on duty, there were no gates on the fence surrounding the pool, no cover had been placed over the pool, and there was no life saving equipment or warning signs near the pool. Gault v. Tablada, 400 F. Supp. 136, 1975 U.S. Dist. LEXIS 11301 (S.D. Miss. 1975), aff'd, 526 F.2d 1405 (5th Cir. Miss. 1976).

Owners of apartment complex, who were charged with foreseeing the danger presented by a water-filled swimming pool located in the middle of an apartment complex which was occupied by minor children, were negligent where they failed to have a lifeguard on duty, to fence the area in question, to cover the pool, to maintain any resuscitation or rescue equipment, and to drain the pool when it was not expected to be used. Kopera v. Moschella, 400 F. Supp. 131, 1975 U.S. Dist. LEXIS 16768 (S.D. Miss. 1975), aff'd, 526 F.2d 1405 (5th Cir. Miss. 1976).

In an action against an automobile driver for the alleged wrongful death of a minor who was riding a bicycle when it collided with the automobile, a jury verdict in favor of the driver foreclosed all questions of fact, resolved all conflicts in the evidence favorable to the driver, and also amounted to a factual finding by the jury that the driver of the automobile had not been negligent and had acted as a reasonably prudent person would have done under the same or similar circumstances. McCollum v. Randolph, 220 So. 2d 310, 1969 Miss. LEXIS 1452 (Miss. 1969).

Motorist failing to slow down on being blinded by lights of approaching car held liable for death of pedestrian struck while walking on side of road. Layton v. Cook, 248 Miss. 690, 160 So. 2d 685, 1964 Miss. LEXIS 293 (Miss. 1964).

It is no defense to an action for death to child in highway caused by motorist that driver was not responsible because he was only 5 feet 7 inches tall and that his vision of place where child was when hit by car did not begin closer than 63 feet ahead of him, on account of view being obstructed by hood of automobile and open airvent thereon. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

In action under this section [Code 1942, § 1453] for damages for death of child, five-year-old child is prima facie incapable of contributory negligence. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

In action against restaurateur for death to customer by serving food not fit for human consumption, it must be shown that restaurateur did not use that degree of care in the selection, preparation, cooking or serving of the food so injuring the customer as a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table, the restaurateur not being an insurer against injury to his customers. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

Employer not relieved of liability for death of minor fatally burned by explosion while cleaning coin-operated machine with gasoline in violation of instructions where there was no showing that employee himself was warned. United Novelty Co. v. Daniels, 42 So. 2d 395, 1949 Miss. LEXIS 476 (Miss. 1949).

In suit to recover for death of licensee or trespasser, owner of land is not liable irrespective of his negligence provided it did not amount to willful or wanton negligence. Westmoreland v. Mississippi Power & Light Co., 172 F.2d 643, 1949 U.S. App. LEXIS 2755 (5th Cir. Miss. 1949).

Bus company was not liable for death of passengers who alighted pursuant to their request at safe place on highway opposite their homes when they were struck by a passing automobile while attempting to cross the highway after the bus had gone, even though the bus driver gave no warning of the approaching automobile. Beeson v. Tri-State Transit Co., 146 F.2d 754, 1945 U.S. App. LEXIS 2076 (5th Cir. Miss. 1945).

Plaintiff has burden of showing in action against employer for employee’s death that such was caused by the employer’s negligence. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Employer is not liable for death of mechanic’s helper caused by the negligence of the mechanic. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

In respect to liability of master for death of employee, while master owes duty to promulgate rules where the work is dangerous and the conditions are obscure or complex, no such duty exists in regard to the use of simple tools and appliances or where the conditions are neither obscure nor complex. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Even though a mechanic’s helper, who dies as result of a can of gasoline used in priming an engine being thrown on him after the gasoline therein had become ignited when the engine backfired, was contributorily negligent in choosing the particular can and in standing in a dangerous position, the jury could properly reduce the damages by virtue of the law of comparative negligence if the jury should find that the employer was liable in negligently failing to furnish a safe priming can. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

An infant cannot be held liable in death action for faults or omission when the duty to act otherwise must find its basis in an agreement by the infant. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Fourteen-year-old boy riding on farm tractor on highway, who agreed to warn the tractor operator of approaching traffic but who failed to warn him of a truck which collided with the tractor from the rear, could not be held liable for the death of the tractor operator. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Contributory negligence of one of the beneficiaries cannot be used as a defense in an action for damages causing death. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

In an action by a widow for the death of her husband, the rule that to board a moving train is negligence, as a matter of law, is discussed and the facts held to constitute an exception. Wooten v. Mobile & O. R. Co., 79 Miss. 26, 29 So. 61, 1901 Miss. LEXIS 6 (Miss. 1901).

In an action by a father for the death of his son it was held contributory negligence, as a matter of law, for the latter, an active and intelligent boy between twelve and thirteen years of age, who had knowledge of the danger, to voluntarily jump from a train going twenty miles an hour. Howell v. Illinois C. R. Co., 75 Miss. 242, 21 So. 746, 1897 Miss. LEXIS 95 (Miss. 1897).

Although nurse in charge of two small children attempted to cross railroad track while aware of approach of train, she was not necessarily guilty of contributory negligence, and where there was evidence to the effect that she would have had ample time to cross if she had not been confused by the outcries and commotion of a near-by crowd, finding of jury against contributory negligence in action for death of child would not be disturbed. Alabama & V. R. Co. v. Lowe, 73 Miss. 203, 19 So. 96, 1895 Miss. LEXIS 128 (Miss. 1895).

10. Limitation of actions.

Only when someone who is qualified to bring a wrongful-death suit actually files a wrongful-death suit on the minor beneficiaries’ behalf will the minors savings clause not apply, because, once the suit is filed, the running of the statute of limitations is immaterial. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent the supreme court held in Curry v. Turner, 832 So. 2d 508 (Miss. 2002), that the mere existence of a person of majority age with statutory standing to file a wrongful-death suit prevents the application of the minors savings clause, the supreme court explicitly overrules this holding; instead, Curry should be limited to its facts. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

To the extent Curry v. Turner, 832 So. 2d 508 (Miss. 2002), held that the mere existence of someone qualified to bring a wrongful-death suit created an irreconcilable conflict between Miss. Code Ann. §11-7-13 and Miss. Code Ann. §15-1-59 and precluded the application of the latter statute, the supreme court explicitly overrules this part of its holding. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Mere existence of an aunt as a person with statutory standing to bring a wrongful-death suit did not prevent the application of Miss. Code Ann. §15-1-53 because the aunt had been neither appointed guardian nor authorized by the chancery court to bring an action on behalf of the deceased’s children; the oldest child did not have a guardian appointed who had the legal authority to bring a suit on her behalf, and thus, the savings clause remained in operation. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Circuit court properly denied a hospital and a doctor summary judgment because the minors savings statute applied, and thus, the deceased’s oldest child had two years from when she reached the age of majority to file a wrongful-death suit based on medical negligence; the deceased’s two minor children could rely on the application of the minors savings clause to toll the running of the two-year statute of limitations, and the oldest child timely filed her complaint within two-year period. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

Miss. Code Ann. §11-7-13 wrongful-death claims of wrongful-death beneficiaries matured–and Miss. Code. Ann. §15-1-49, the statute of limitations on those claims, began to run–on April 17, 2000, not because that was the day the decedent died, but rather because that was the first day (“if death had not ensued”) the decedent could have brought a claim. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Mississippi wrongful-death statute, Miss. Code Ann. §11-7-13, despite the Mississippi Legislature’s assigned nomenclature, encompasses all claims, including survival claims, which could have been brought by a decedent, wrongful-death claims, estate claims, and other claims resulting from a tort which proximately caused a death. And where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Under Miss. Code Ann. §11-7-13, wrongful death claims premised on negligence, strict liability, and breach of implied warranties were time-barred under the applicable three-year limitations period of Miss. Code Ann. §15-1-49, because the claims accrued at the time of diagnosis of the decedent’s latent disease and there were no allegations of a confidential or fiduciary relationship to establish a breach of duty of disclosure of toxic substances for a fraudulent concealment claim. Wells v. Radiator Specialty Co., 413 F. Supp. 2d 778, 2006 U.S. Dist. LEXIS 18082 (S.D. Miss. 2006).

Trial court erred in ruling that the minor’s savings statute, Miss. Code Ann. §15-1-59, did not toll the statute of limitations on a wrongful death action; however, once a wrongful death suit was filed in her behalf, the minor no longer enjoyed the protection of §15-1-59; since there could be but one cause of action under Miss. Code Ann. §11-7-13, the minor was governed by the same statute of limitations as the decedent’s administratrix. Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Provisions of the minor’s savings statute, Miss. Code Ann. §15-1-59, and the wrongful death statute, Miss. Code Ann. §11-7-13, conflict where there exists a person qualified under §11-7-13 to bring suit, as § 11-7-13 requires that one suit be brought for damages from wrongful death. Thus, the statute of limitations runs against both the personal representative of the deceased and the deceased’s children. Curry v. Turner, 832 So. 2d 508, 2002 Miss. LEXIS 391 (Miss. 2002), limited, overruled in part, Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.3d 259, 2017 Miss. LEXIS 107 (Miss. 2017).

A wrongful death action arising in the context of medical negligence is not measured from the date the decedent knew or should have known about the act of negligence, but rather, the cause of action does not accrue until the death of the negligently injured person. Gentry v. Wallace, 606 So. 2d 1117, 1992 Miss. LEXIS 540 (Miss. 1992), overruled, Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923, 2006 Miss. LEXIS 208 (Miss. 2006).

Prescriptive periods applicable to claims brought by statutory heirs arising from alleged wrongful death of decedent were not tolled during pendency of prior wrongful death actions, inasmuch as wrongful death statute did not operate to bar any other action unless matter was decided on its merits, and in further view of fact that plaintiffs were active in state court litigation involving same subject matter before the court; plaintiffs’ active involvement in state court action and their filing of prior lawsuit in federal court absolutely destroyed their argument that they were prohibited by law from bringing suit, furthermore, their participation in such earlier lawsuits negated any suspension of limitation period applicable under state law. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

Cause of action based upon wrongful death statute (§11-7-13), being predicated upon defendant’s intentional torts, is governed by one year statute of limitations, rather than 6 year statute of limitations, as actions filed pursuant to wrongful death statute must be brought within corresponding prescription statute for which cause of action is predicated. Veselits v. Veselits, 653 F. Supp. 1570, 1987 U.S. Dist. LEXIS 1348 (S.D. Miss.), aff'd, 824 F.2d 391, 1987 U.S. App. LEXIS 10851 (5th Cir. Miss. 1987).

In an action for wrongful death filed by the surviving spouse and children after the statutory limitation period had passed, §15-1-59, the savings statute, did not toll the limitations period in favor of the children, since the surviving spouse was a person in esse who had the right to file suit for wrongful death during the six-year limitation period after decedent’s death, and thus the action was barred. Arender v. Smith County Hospital, 431 So. 2d 491, 1983 Miss. LEXIS 2633 (Miss. 1983).

Where the death of a child which followed almost immediately its birth on December 16, 1964 was caused by the erroneous typing of its mother’s blood on April 4, 1958, and the cause of action for the child’s death against the infirmary which typed the mother’s blood was cast under the provisions of this section [Code 1942, § 1453], the cause of action arose as of the date of the child’s death and not as of the date the mother’s blood was typed, and the trial court erroneously sustained a plea of the six-year statute of limitations. Smith v. McComb Infirmary Ass'n, 196 So. 2d 91, 1967 Miss. LEXIS 1479 (Miss. 1967).

The limitation period does not condition the right of action under the statute. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Actions under the statute are, since the amendment of 1908, governed by the general statute of limitations. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

The saving in favor of persons under disability contained in Code of 1892 § 2746, does not apply to actions under this section (Code 1892 § 663), which must be brought within one year after the death, without any saving for those under disability. Foster v. Yazoo & M. V. R. Co., 72 Miss. 886, 18 So. 380, 1895 Miss. LEXIS 40 (Miss. 1895).

11. Actions in general.

Holding that wrongful-death suit filed in Mississippi was subject to dismissal during the pendency of a suit for the same wrongful death in a sister state, pursuant to Miss. Code Ann. §11-7-13, rested upon the wrongful-death statute’s one-suit requirement and the procedural rules developed to manage wrongful-death litigation consistent with that requirement. The decision did not erode the general rule that a previously-filed action in a sister state was no bar to an action in Mississippi. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589, 2010 Miss. LEXIS 93 (Miss. 2010).

Wrongful death action against medical defendants and a casino should not have been severed because such severance violated the requirement in Miss. Code Ann. §11-7-13 of “one suit for the same death,” and was also inconsistent with Miss. Code Ann. §85-5-7. Adams v. Baptist Mem'l Hospital-Desoto, Inc., 965 So. 2d 652, 2007 Miss. LEXIS 472 (Miss. 2007).

Since personal representative of decedent was expressly authorized by statute to commence wrongful death action for benefit of all heirs entitled to recover, personal representative had sufficient standing to determine heirship of testator’s reputed illegitimate children for purposes of wrongful death statute. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

Provision of wrongful death statute under which heirs may recover “whether an estate has been opened or not” allows heirs to bring wrongful death suit without regard to administration of estate, but is irrelevant to issue of elements which must be proven in order to recover for wrongful death. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

For purposes of venue, cause of action in wrongful death case may occur and/or accrue in both county where death occurred and county where alleged negligence took place, making either county, if they are different, permissible venue. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

Wrongful death action arising out of medical care and/or treatment rendered to decedent by physicians was properly venued either in county where alleged negligence occurred or in county where decedent died. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

In a medical malpractice action arising from the death of a child, the county where the wrongful death beneficiaries resided was the proper venue for the action, even though the cause of action accrued in another county in which all of the defendants resided at the time the cause of action accrued, where one of the defendants had become a resident of the state of Louisiana at the time the complaint was filed. Senatobia Community Hosp. v. Orr, 607 So. 2d 1224, 1992 Miss. LEXIS 604 (Miss. 1992), overruled, Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 2004 Miss. LEXIS 1329 (Miss. 2004).

Prescriptive periods applicable to claims brought by statutory heirs arising from alleged wrongful death of decedent were not tolled during pendency of prior wrongful death actions, inasmuch as wrongful death statute did not operate to bar any other action unless matter was decided on its merits, and in further view of fact that plaintiffs were active in state court litigation involving same subject matter before the court; plaintiffs’ active involvement in state court action and their filing of prior lawsuit in federal court absolutely destroyed their argument that they were prohibited by law from bringing suit, furthermore, their participation in such earlier lawsuits negated any suspension of limitation period applicable under state law. Brown v. Dow Chemical Co., 777 F. Supp. 504, 1989 U.S. Dist. LEXIS 17546 (S.D. Miss.), aff'd, 889 F.2d 272, 1989 U.S. App. LEXIS 16794 (5th Cir. Miss. 1989).

The Mississippi long-arm statute (Code 1972, §13-3-57) 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).

An instance where a suit by decedent dying after suit and revived by his executrix barred the recovery on suit by the executrix thereafter filed. Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 100 So. 12, 1924 Miss. LEXIS 85 (Miss. 1924).

A second suit cannot be brought under the same cause in behalf of a child unborn at the time first suit was instituted. Gulf & S. I. R. Co. v. Bradley, 110 Miss. 152, 69 So. 666, 1915 Miss. LEXIS 4 (Miss. 1915).

Where death results from an injury sued for, only one suit can be instituted. Foster v. Hicks, 93 Miss. 219, 46 So. 533, 1908 Miss. LEXIS 88 (Miss. 1908).

12. —Joinder of actions.

Trial court properly granted a joinder motion by a deceased child’s father in a wrongful death action brought by the child’s mother because both Long and the statute mandated such an outcome. Dooley v. Byrd (In re Dooley), 64 So.3d 951, 2011 Miss. LEXIS 297 (Miss. 2011).

Mississippi wrongful death action was properly dismissed due to the pendency of a prior-filed Louisiana wrongful-death action because under Mississippi’s wrongful-death statute–Miss. Code Ann. §11-7-13–there was to be one suit for the same death; under Long v. McKinney, 897 So. 2d 160 (Miss. 2005), all claims had to be joined in that single action. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589, 2010 Miss. LEXIS 93 (Miss. 2010).

Administratrix’s negligence claims against the healthcare providers and doctors was wrongful death case, and as such was a Miss. R. Civ. P. 19 compulsory joinder case and governed by Miss. Code Ann. §11-7-13; thus, the trial court erred by transferring venue as to each doctor to separate counties, and venue for the wrongful death claim was proper in Bolivar County. Rose v. Bologna, 942 So. 2d 1287, 2006 Miss. LEXIS 550 (Miss. 2006).

In a wrongful death action, a court erred by failing to consolidate beneficiaries’ separate suit filed one day after the decedent’s daughter’s suit because the daughter filed suit as the representative of all statutory beneficiaries, and all such beneficiaries should have received notice of the litigation. Because there was no apparent conflict of interest between appellee and the estate, and since the estate, through appellee as administratrix, employed a law firm to represent the estate, that firm should represent the estate, provided the pleadings were amended to assert a claim on behalf of the estate. Long v. McKinney, 897 So. 2d 160, 2004 Miss. LEXIS 1404 (Miss. 2004).

Where wrongful death action and action against uninsured motorist coverage for same death are simultaneously pending, uninsured motorist coverage is source of funds from which wrongful death heir who controls prosecution of wrongful death action may satisfy any judgment recovered on behalf of all wrongful death heirs; therefore first wrongful death plaintiff will not be preempted from choosing trial tactics or electing remedies by another wrongful death heir; consolidation of two such suits for purpose of ordering settlement is appropriate. Rampy ex rel. Rampy v. Austin, 718 F. Supp. 556, 1989 U.S. Dist. LEXIS 8463 (S.D. Miss. 1989).

Where death occurs to two persons at the same time under the identical facts, and beneficiaries are the same as to both persons, the action may be joined for damages for the death of both. Payne v. Moore, 126 Miss. 693, 89 So. 225, 1921 Miss. LEXIS 63 (Miss. 1921).

A suit for the death of the wife and daughter may be joined in one action where the death happened at the same time and due to the same facts of alleged negligence. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

13. —Removal of cause.

In a wrongful death case that had been removed to federal court and in which plaintiffs moved to remand, a car driver, who was a non-diverse defendant, had been improperly joined and had to be dismissed; with his dismissal the court had jurisdiction because the parties were diverse. While plaintiffs had asserted that the car driver was liable under the Mississippi Wrongful Death Statute, Miss. Code Ann. §11-7-13, which required that all defendants be brought before the court in one suit, they had testified, under oath, that the sole cause of the accident at issue was the action of truck driver and that the car driver did not cause the accident in any way. Morris v. P & S Transp., Inc., 2008 U.S. Dist. LEXIS 17287 (N.D. Miss. Feb. 29, 2008).

A wrongful death action brought by a resident of Maine as administrator against a Maine corporation was removable to the Federal court on the ground of diversity of citizenship in view of this section [Code 1942, § 1453] under which a decedent’s widow and children are alone entitled to the damages for his death, and such resident widow and children were the “real parties in interest.” Mississippi Power Co. v. Archibald, 189 Miss. 332, 196 So. 760, 1940 Miss. LEXIS 116 (Miss. 1940).

14. Pleading.

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damages to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

In an action against electric power association for death of the deceased as result of electrocution wherein the electric power association did not plead as an affirmative defense that the wife of the deceased who came to her death by electrocution on the same occasion survived her husband, the court properly refused an instruction that in event the jury should believe from preponderance of evidence that the wife survived her husband, the amount of the verdict, if any, should be for nominal damages only, or in such amount as would compensate for the loss of the companionship of her husband during the brief period of time that she survived him. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

In an action under this section [Code 1942, § 1453] it is not necessary to allege or prove that decedent left any relatives or creditors surviving. Yazoo & M. V. R. Co. v. Barringer, 138 Miss. 296, 103 So. 86, 1925 Miss. LEXIS 51 (Miss. 1925).

It must be alleged and shown how the injury complained of occurred and that negligence of the defendant caused it. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

15. Issues, proof and variance.

Wrongful death action is to compensate beneficiary for loss of companionship and society of decedent, pain and suffering of decedent between time of injury and death, and punitive damages and, thus, beneficiary need only establish some of those elements in order to recover for decedent’s wrongful death. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Variance between declaration alleging railroad’s failure to give statutory crossing signals and proof of failure to give common-law warning to trespasser on tracks after notice of danger held not to require reversal. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

A mother cannot recover damages for her son’s prospective earnings in the absence of proof. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

16. Parties.

In a wrongful death case, the tutrix of a minor child had been misjoined under Fed. R. Civ. P. 21 because she was not an indispensable party under the Fed. R. Civ. P. 19 factors. Under Mississippi’s wrongful death statute, Miss. Code Ann. §11-7-13 (Rev. 2002), the guardian of another minor child had fiduciary obligation to other beneficiaries who were not joined in the lawsuit, and the interests of the tutrix would be represented by counsel for the guardian. Walker v. Smitty's Supply, Inc., 2008 U.S. Dist. LEXIS 37226 (S.D. Miss. Apr. 23, 2008).

Miss. Code Ann. §11-1-60(2)(a) instituted a cap on noneconomic damages recoverable by “the plaintiff,” and under Miss. Code Ann. §1-3-33, words written in the singular were to be read in the plural; therefore, a cap on noneconomic damages applied to all plaintiffs who brought a wrongful-death action pursuant to Miss. Code Ann. §11-7-13. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 2007 Miss. LEXIS 649 (Miss. 2007).

Under Fed. R. Civ. P. 19(a), a widow and her children were indispensable parties to a wrongful death suit of a decedent’s former wife because Miss. Code Ann. §11-7-13 provided for a single wrongful death action that encompassed all related claims; thus, the former wife’s federal suit was dismissed because the widow’s presence destroyed diversity jurisdiction, but the former wife was permitted to join the widow’s state court wrongful death suit. Harpster v. Thomas, 442 F. Supp. 2d 349, 2006 U.S. Dist. LEXIS 46777 (S.D. Miss. 2006).

Trial court erred as a matter of law when it denied defendant equipment manufacturer’s motion for summary judgment; a wrongful death claim was not assignable by a wrongful death beneficiary to one tortfeasor to be asserted against another joint tortfeasor. Mississippi’s wrongful death statute did not confer upon a tortfeasor the right of assignment of a plaintiff’s wrongful death cause of action. Coleman Powermate, Inc. v. Rheem Mfg. Co., 880 So. 2d 329, 2004 Miss. LEXIS 1033 (Miss. 2004).

When the personal representative of a decedent person brings an action under Code 1942, § 1453 he is the real party in interest though not necessarily the person who will ultimately benefit from the recovery; and the fact that citizenship of some of the absent statutory beneficiaries is the same as the citizenship of the defendant does not destroy complete diversity. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

In an action brought under Code 1942, § 1453 the citizenship of the personal representative of the decedent is determinative of the diversity issue. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

In a wrongful death action the citizenship of the administrator for the decedent is determinative on the issue of diversity. Harris v. Johnson, 345 F. Supp. 516, 1972 U.S. Dist. LEXIS 12657 (N.D. Miss. 1972).

By the use of the word “may” in the phrase “all parties interested may join the suit” it is apparent that it is not mandatory that all interested persons join a wrongful death action, and thus the fact that 2 survivors resided in Mississippi did not defeat total diversity required for federal jurisdiction, since they were not necessary parties to the action. Allen v. Baker, 327 F. Supp. 706, 1968 U.S. Dist. LEXIS 12798 (D. Miss. 1968).

Where the administratrix had made an election to sue for the death of her decedent under this section [Code 1942, § 1453], the mere reference to the Workmen’s Compensation Act did not serve to convert the case to one based upon tort and the Act, so that the next of kin and beneficiaries would become necessary and indispensable parties, and, the federal court was not deprived of jurisdiction based upon diversity of citizenship on the theory that such beneficiaries and indispensable parties were citizens of the same state as the defendant. Hordge v. Yeates, 157 F. Supp. 411, 1957 U.S. Dist. LEXIS 2520 (D. Miss. 1957).

Where administratrix did not institute suit for death of decedent, she was not necessary party to death action brought by widow and children of intestate. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

17. Evidence.

Under Miss. R. Civ. P. 50, the medical facility’s motion for judgment notwithstanding the verdict should have been granted where, under Miss. Code Ann. §11-7-13, the husband presented no evidence regarding any damages sustained from loss of society and companionship, and claims of the estate or other wrongful-death economic damages were not at issue. River Region Med. Corp. v. Patterson, 975 So. 2d 205, 2007 Miss. LEXIS 648 (Miss. 2007).

In the family’s wrongful death action, the treating nurses testified that prior to vomiting, the decedent was wearing an oxygen mask, not a bi-level positive airway pressure mask (BIPAP), and that after he vomited a nurse switched him to a nasal bi-prong which provided oxygen through the nose, rather than a mask of any type. One treating nurse, testified that a patient would not aspirate with a nasal bi-prong or a standard oxygen mask; since conflicts in the evidence were to be resolved in the prevailing party’s favor (in the trial court), a reasonable jury could have believed that the decedent was not wearing a BIPAP mask when he vomited, and that one issue undermined the family’s position that “overwhelming evidence” established the hospital’s liability. Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 2005 Miss. LEXIS 385 (Miss. 2005).

In a wrongful death action, the decedent’s “personal photo album” was admissible on the issue of damages where it was critical to the plaintiff’s case to humanize the decedent and to demonstrate to the jury that the 85-year-old decedent was well and healthy prior to the accident. Additionally, testimony of friends of the decedent was essential to determine the state of the decedent’s physical condition prior to his death, even though some of the testimony was duplicative of testimony given by the plaintiff and her son where the testimony of the plaintiff and her son was verified and corroborated by the testimony of the other witnesses who, unlike the plaintiff and her son, had no financial stake in the matter. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

It was reversible error to admit investigating officer’s testimony that no traffic citation was issued to tractor-trailer driver as result of incident resulting in death, of plaintiff’s son; trial court also erred in refusing to admit evidence that decedent, 2 or 3 months before his death had attempted suicide by lying down in highway in path of truck. Hughes v. Tupelo Oil Co., 510 So. 2d 502, 1987 Miss. LEXIS 2608 (Miss. 1987).

Trial court erred in refusing to admit evidence that decedent’s blood alcohol content, tested at request of investigating officer, was .15 percent, because statutory privilege in §63-11-43 [Repealed] prohibiting admission, in civil trial, of blood alcohol tests taken pursuant to state’s implied consent law, had been abrogated by adoption of Mississippi Rules of Evidence; officer who requested test did not have authority to do so, since implied consent law authorized blood alcohol test on dead or unconscious drivers whom investigating officer believed to have been operating motor vehicle while intoxicated, and there was no evidence that decedent had been operating motor vehicle; however, admission was proper because exclusion of this relevant evidence would have no deterrent effect on officer who ordered test, and would only penalize defendants. Hughes v. Tupelo Oil Co., 510 So. 2d 502, 1987 Miss. LEXIS 2608 (Miss. 1987).

Testimony of an expert in the field of economics as to the reasonable economic probability of a male similarly situated as was the decedent, was too speculative to be of any real value to the jury in making up a true verdict. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

In wrongful death action where decedent succumbed when a television antenna he was erecting came into contact with defendant’s power line, testimony of neighbor that some 6 years earlier her lights went off and she observed power company workers as they removed a television antenna belonging to another neighbor from the electric lines here involved, near the place where the second accident occurred, was admissible to show that antennas constructed since the power line was installed along the edge of the street, were likely to fall on the line and cause damage unless the power line was properly isolated, insulated or guarded so as to prevent injury upon contact with antennas along the street where defendant power company was licensed to operate. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Testimony showing any change in conditions on which a wrongful death action is based is competent as against the rights of the persons affected, and testimony may be introduced to show the remarriage of the widow after the death of the husband for which the suit is brought. Campbell v. Schmidt, 195 So. 2d 87, 1967 Miss. LEXIS 1436 (Miss. 1967).

Doctrine of res ipsa loquitur does not apply in an action against restaurant operator for death of customer allegedly caused by ptomaine poisoning. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

A directed verdict for the defendant in a malpractice suit was sustained and the doctrine of res ipsa loquitur held not to apply where the only witness for the plaintiff was the mother of the deceased child who testified that the defendant performed a tonsillectomy upon the child and that the child died in the hospital shortly thereafter. Sanders v. Smith, 200 Miss. 551, 27 So. 2d 889, 1946 Miss. LEXIS 322 (Miss. 1946).

Where, in action for death of child resulting from explosion of lamp predicated on negligence of defendant in supplying filling station with gasoline instead of kerosene, judgment in favor of plaintiff based upon testimony of twelve-year-old witness that he filled the lamp from the can which was brought from the filling station would impute wilful and corrupt perjury to nine adult witnesses, six of whom were disinterested and unimpeached, whose testimony exonerated defendant from any negligence, in the respect alleged, judgment was reversible as against the great weight of the evidence. Standard Oil Co. v. Henley, 199 Miss. 819, 25 So. 2d 400, 1946 Miss. LEXIS 250 (Miss. 1946).

To recover damages in death action for physical pain and mental anguish suffered by deceased between time of accident and his death, plaintiff must sustain burden of proof that deceased retained consciousness after the accident. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Dying declarations of decedent are not admissible in civil actions for wrongful death. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Where railroad company, defendant in action for death of pedestrian struck by train at crossing, took deposition of fireman because he was then in the armed forces, but did not introduce it, plaintiffs’ use thereof, as if it had been introduced, in the examination of other witnesses, was improper. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Evidence, in action for death of pedestrian struck by train at crossing, that the fireman was drunk immediately after the accident, was inadmissible in the absence of showing that anything done or omitted by the fireman had any causal connection with the injury. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

When a person is injured or killed on a public railroad crossing, the failure to ring the bell or sound the whistle as required by statute will raise the presumption prima facie that the injured person would have heard and acted upon the warning had it been given, and that if an opposite conclusion is to be reached the burden is upon the railroad company to meet the presumption by proof. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Plaintiff has burden of showing in action against employer for employee’s death that such was caused by the employer’s negligence. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

A motorist may be found by the jury to have been in the exercise of due care and hence not liable under this statute [Code 1942, § 1453] for the death of a child where there is evidence that other vehicles obstructed his view in such a way that he could not see the child until close upon it. Moser v. Hand, 81 F.2d 522, 1936 U.S. App. LEXIS 3478 (5th Cir. Miss. 1936).

Evidence that doctor was negligent in treating deceased for gunshot wound held insufficient to establish liability of doctor for wrongful death of deceased from pulmonary embolism. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 1935 Miss. LEXIS 6 (Miss. 1935).

Life expectancy of healthy men is competent evidence where the only infirmity of decedent was his deafness. Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

As to the competency of mortuary tables where the deceased was an asthmatic, and asthmatics were not embraced in such tables. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

In an action by an employee, claimed to have been injured by being thrown under a car while engaged in switching by stumbling over slag, it was competent for the railroad company to show that slag is commonly used by responsible railroad companies as ballast. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

In such actions evidence to show the poverty of the plaintiff is not admissible. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

Evidence that no previous accident had occurred at the same place was held admissible. And it was also held to be competent for defendant’s attorneys to comment on the absence of evidence of any previous accident at the same place. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

Evidence that the train was short on hands and that plaintiff, a flagman, was performing extra duties, was inadmissible, there being no claim that shortness of hands contributed to the injury. Southern R. Co. v. McLellan, 80 Miss. 700, 32 So. 283, 1902 Miss. LEXIS 306 (Miss. 1902).

18. Questions for jury.

Circuit Court erred when it granted judgment for railroad notwithstanding verdict of jury where, while greater weight of credible evidence supported view that emergency whistle was sounded, there was in record some credible evidence that whistle never sounded. Maxwell v. Illinois C. G. Railroad, 513 So. 2d 901, 1987 Miss. LEXIS 2793 (Miss. 1987).

In a civil suit seeking recovery of damages for the deaths of two persons and injuries to three others as a result of being struck by gunfire laid down by a detachment of officers who were on a college campus as a result of student disorders, there was sufficient evidence to submit to the jury questions as to whether the respective officers were privileged to fire in self-defense or to suppress a riot, whether they employed excessive deadly force or fired without due regard to the safety of others, whether any one or more of them was an actual cause of harm to any plaintiff, and whether any supervisory or command officers were liable. Burton v. Waller, 502 F.2d 1261, 1974 U.S. App. LEXIS 6442 (5th Cir. Miss. 1974), cert. denied, 420 U.S. 964, 95 S. Ct. 1356, 43 L. Ed. 2d 442, 1975 U.S. LEXIS 847 (U.S. 1975).

Whether or not a defendant power company should have anticipated that person using due regard for their own safety in constructing, erecting and using television antennas in a congested area would likely come into contact with its dangerous powerlines so that it became its duty to isolate, insulate or guard its lines against the likelihood of such contact with its lines by the lawful use of the inhabitants and the issue as to the necessity of a warning and whether or not the power company failed to perform its duty in this regard were questions of fact for the jury. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

The question of whether a general contractor, in constructing a wooden scaffolding for use of employees of a subcontractor who installed steel beams in a corridor, had provided a safe place for subcontractor’s employees to work was one for the jury. Oden Constr. Co. v. McPhail, 228 So. 2d 586, 1969 Miss. LEXIS 1394 (Miss. 1969).

Whether bus driver was negligent in failing to ascertain whereabouts of passenger who alighted from bus before starting bus and fatally striking her, was for the jury. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In action for death of five-year-old child by driver of car on highway, it was for jury to say whether child climbed over curb or entered highway through vent and if driver of car could have seen it in time to avoid accident if he had been keeping constant lookout and anticipating presence of pedestrians in highway as required by law. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Whether operators of locomotive failed to give warning signals after they became aware of danger of pedestrian killed on tracks held, under evidence, for jury. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

19. Instructions.

This section does not require that jury know identity of beneficiaries, therefore court need not have informed jury that plaintiff’s children would have been primary beneficiaries of any wrongful death damages it awarded; court properly rejected plaintiff’s argument that jury assumed that plaintiff would be sole recipient of damages and thus the interests of the children were unfairly prejudiced. Munn v. Algee, 924 F.2d 568, 1991 U.S. App. LEXIS 3050 (5th Cir. Miss.), cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 229, 1991 U.S. LEXIS 4951 (U.S. 1991).

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court’s error in refusing a jury instruction that the defendant truck driver was negligent as a matter of law due to intoxication was cured by the jury finding in favor of the plaintiff. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court erred in granting a comparative negligence instruction where the only act of negligence claimed by the defendant truck driver was that the decedent drove her car onto his side of the highway since, if the jury had found the decedent negligent in driving onto the wrong side of the road, they would have been duty bound to find for the defendant. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

Instruction misrepresenting law concerning duty to stop train when trespasser’s position of peril is recognized in time to stop train was unsupported by law; instruction failing to make clear that railroad’s duty of reasonable care arose only when its engineer and firemen first saw decedent on railroad tracks was error; and, instruction should further tell jury that railroad’s duty was to exercise reasonable care under particular circumstances with which it was confronted. Maxwell v. Illinois C. G. Railroad, 513 So. 2d 901, 1987 Miss. LEXIS 2793 (Miss. 1987).

Electric power company’s instruction to the effect that decedent was presumed to have seen an electric power line and to have known of its presence, was properly refused since there was no presumption to that effect, and moreover, such instruction was an attempt to instruct on the weight and worth of the evidence by adding an inference in violation of Code 1942, § 1530. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Plaintiff’s instruction to the effect that an electric power company was required to maintain its lines in such a manner as to prevent it from being dangerous to the public, was erroneous since if it were required so to do, a power company would be an insurer against all injuries to persons and property. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

In view of this provision, it is erroneous to give an instruction the effect of which is to permit one beneficiary’s contributory negligence to be imputed to all the beneficiaries. Delta Elec. Power Ass'n v. Burton, 240 Miss. 209, 126 So. 2d 258, 1961 Miss. LEXIS 451 (Miss. 1961).

Instructing jury in death action that they may consider the present net cash value of deceased’s life at the time of death is not error. Ashcraft v. Alford, 236 Miss. 25, 109 So. 2d 343, 1959 Miss. LEXIS 289 (Miss. 1959).

In suit to recover for death of passenger killed while passing in front of bus after alighting, instructions when taken collectively that no liability attached until jury found that passenger’s death was caused by driver’s failure to keep a reasonable lookout, was proper. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Instruction authorizing jury to consider on question of damages the value of services of deceased to her husband, and the value of her association, society, and companionship to her husband and children, was proper. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In determining right of defendant to peremptory instruction to recover for death of customer allegedly caused by ptomaine poisoning, the court must assume as true everything which the evidence establishes either directly or by reasonable inferences which the jury might reasonably draw from such evidence, subject to the limitation, however, that a presumption cannot arise from another presumption. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

In action for death of child caused by negligent act of defendant, an instruction authorizing jury to take into consideration “any negligence on the part of the deceased child” is properly refused as the instruction fails to set forth elements of such negligence, if any, and its proximate contribution to injuries. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

An instruction allowing jury to find negligence without giving a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence, is erroneous. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Roving instructions, in action for wrongful death of pedestrian struck by train at crossing, authorizing recovery if jury believed from preponderance of the evidence that defendant railroad company was guilty of any negligence which proximately caused or contributed to the injury, was erroneous, which error was not cured by other instructions charging jury that unless they believed from the evidence that decedent was struck at the crossing they must find for the defendant. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

Where there was no evidence as to how accident occurred resulting in death of mechanic’s helper allegedly caused by mechanic throwing can of flaming gasoline on him, trial court erred in refusing defendant employer’s motion for directed verdict, but judgment would be reversed for a new trial rather than for a judgment notwithstanding the verdict in view of the confusion at the trial as to the status and effect of the pleadings. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

Instruction, in action by parents to recover for wrongful death of their two minor sons, that jury could also find for the plaintiffs for such “amount of money that the evidence shows that these boys might have voluntarily contributed to their parents after they reach 21 years of age,” constituted reversible error, where there was no evidence to justify the instruction. Alabama G. S. R. Co. v. Johnson, 140 F.2d 968, 1944 U.S. App. LEXIS 4090 (5th Cir. Miss. 1944).

In view of the provisions of the statute that the “parties suing shall recover such damages as the jury may determine to be just” it is error to charge the jury that the damages to be awarded for the death of an infant “can never amount to what might be said to be substantial damages” and that unless the verdict should exceed the sum of $2500 or $3000 it would not be considered substantial damages. Wood v. Morrow, 119 F.2d 776, 1941 U.S. App. LEXIS 3831 (5th Cir. Miss. 1941).

Instruction that plaintiffs were entitled to reasonable compensation for damages as proximate result of negligence of defendants in death of brother and son held not erroneous. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In action for death of brother and son, instruction excluding loss of society and companionship as element of damages held properly refused. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In action for death refusal of instruction that evidence did not authorize damages for loss of pecuniary profits to be derived after decedent became twenty-one held harmless error. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

Instruction authorizing recovery by mother and brother of deceased minor for present value of deceased’s life expectancy held erroneous. Gulf & S. I. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345, 1928 Miss. LEXIS 182 (Miss. 1928).

Peremptory instruction requested by defendant railroad company in action against it for running over and killing plaintiff’s child was properly refused where there was evidence of defendant’s negligence to go to the jury. Alabama & V. R. Co. v. Lowe, 73 Miss. 203, 19 So. 96, 1895 Miss. LEXIS 128 (Miss. 1895).

20. Execution on judgment.

In execution on a judgment for the death of the father obtained by the widow, the children are co-plaintiffs with the widow and the sheriff owes them the same duty he does the widow if he knows of their interest. Kelly v. Howard, 98 Miss. 543, 54 So. 10, 1910 Miss. LEXIS 93 (Miss. 1910); Howard v. Kelly, 111 Miss. 285, 71 So. 391, 1916 Miss. LEXIS 287 (Miss. 1916).

21. Attorney fees.

While the Court of Appeals properly affirmed a chancellor’s determination that a decedent’s half-siblings were entitled to an equal distribution under the wrongful-death statute and that the proceeds were to be equally divided, because the Supreme Court of Mississippi was split on whether the administratrix’s attorneys had an actual conflict of interest with the half-siblings and acted adverse to their interests with respect to the issue of attorney fees, the Court of Appeals’ opinion and holding on that issue, reversing in part and remanding, had to stand. Huber v. Eubanks (In re Estate of Eubanks), 197 So.3d 861, 2015 Miss. LEXIS 83 (Miss. 2015).

In a wrongful death case, the original judge properly ordered that the decedent’s two heirs join their lawsuits pursuant to Miss. Code Ann. §11-7-13, but the adult heir was allowed to retain the attorneys the adult heir had chosen, and their work substantially contributed to the wrongful death settlement; thus, the adult heir’s attorneys were entitled to attorneys’ fees, and the appellate court rendered judgment holding that the attorneys would be paid for their work. Franklin v. Franklin, 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

Because there was no evidence that the decedent’s widow gave informed written consent to the representation and fee arrangement between the decedent’s son and his attorney in the wrongful death action, the attorney was entitled to contingency fees based on the son-attorney contract only with respect to the son’s portion of the settlement proceeds. Willing v. Benz, 2006 Miss. App. LEXIS 873 (Miss. Ct. App. Nov. 21, 2006), sub. op., op. withdrawn, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App. 2007).

Appellant attorneys were entitled to compensation based upon their contribution to the wrongful death case and their justifiable reliance on the first judge’s order granting all attorneys a fee based on their contracts with their respective clients; thus, the second judge improperly denied them attorneys’ fees. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

Attorney who substantially contributes to a wrongful death settlement should be compensated for the attorney’s time and effort. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

There is no authority for the proposition that the wrongful death statute, Miss. Code Ann. §11-7-13, does not allow heirs to be individually represented by counsel of their choice. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

An attorney who successfully prosecutes a wrongful death claim without representing all of the heirs must prove that the attorney has earned a fee from the proceeds distributed to all the heirs. Franklin v. Franklin, 2002 Miss. LEXIS 321 (Miss. Oct. 31, 2002), op. withdrawn, sub. op., 858 So. 2d 110, 2003 Miss. LEXIS 63 (Miss. 2003).

22. Damages.

While wrongful death beneficiaries were entitled to share equally in the damages awarded to decedent’s estate (funeral expenses) and those suffered by the decedent (loss of income), they were not entitled to share equally in the amount of damages awarded for loss of society and companionship; instead, each beneficiary was entitled to recover for himself any loss of society and companionship he might prove, so the court did not err by submitting a verdict form that allowed the jury to award each beneficiary separate amounts in non-economic damages. Thus the court denied the beneficiaries’ motion for new trial on that ground. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Recovery of emotional distress damages is not permitted under the Mississippi Wrongful Death Statute and damages awards cannot be enlarged on account of the horror and terrible shock of a tragedy; as photographs of the accident scene and testimony regarding the manner in which the decedent died were not relevant to the claims of loss of society or companionship, and were otherwise highly prejudicial, the court found it did not err by excluding this evidence during the second trial in this case; thus the court denied the beneficiaries motion for new trial on this ground. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Court’s charge given in a second trial that disclosed the amount awarded for funeral expenses and lost income in the first trial was necessary and reasonable in order to explain that the second trial was limited to the beneficiaries’ claims for non-economic damages as the issues of liability and economic loss had already been decided; additionally, beneficiaries failed to show that the charge affected their substantial rights. Accordingly, the court did not err by disclosing the amount of damages awarded in the first trial in its charge to the jury during the second trial of this case an a new trial was not warranted. Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 2008 U.S. Dist. LEXIS 21012 (S.D. Miss. 2008).

Trial court did not err in awarding hedonic damages in a wrongful death suit arising out of a collision between the decedent’s vehicle and the corporation’s tractor-trailer when death was instantaneous. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 2002 Miss. LEXIS 181 (Miss. 2002).

Trial court properly distributed insurance settlement proceeds in wrongful death action to decedent’s father, mother, half-sisters and half-brother, equally, without separate hearing in which each beneficiary could attempt to prove individual damages, and therefore, right to receive larger or smaller portion of insurance proceeds, since statute required that funds “shall be equally distributed.” Pannell v. Guess, 671 So. 2d 1310, 1996 Miss. LEXIS 124 (Miss. 1996).

In a wrongful death action brought by the parents of a passenger who was killed in a motor vehicle accident, the parents were entitled to receive only the uninsured motor vehicle (UM) coverage provided by their own policies and the policy covering the accident vehicle, and were not entitled to the UM coverage provided by 2 other insurance policies issued to the owners of the accident vehicle which covered 2 other automobiles; the parents were entitled to stack the UM coverage provided by the policies in which the passenger met the definition of an “insured” either under the terms of the policy and/or the UM statute, and the passenger was an “insured” only under the policy covering the accident vehicle since she was a guest passenger in that vehicle but was not a guest passenger in either of the other 2 vehicles covered under the other policies issued to the owners. State Farm Mut. Auto. Ins. Co. v. Davis, 613 So. 2d 1179, 1992 Miss. LEXIS 829 (Miss. 1992), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

This section does not require that jury know identity of beneficiaries, therefore court need not have informed jury that plaintiff’s children would have been primary beneficiaries of any wrongful death damages it awarded; court properly rejected plaintiff’s argument that jury assumed that plaintiff would be sole recipient of damages and thus the interests of the children were unfairly prejudiced. Munn v. Algee, 924 F.2d 568, 1991 U.S. App. LEXIS 3050 (5th Cir. Miss.), cert. denied, 502 U.S. 900, 112 S. Ct. 277, 116 L. Ed. 2d 229, 1991 U.S. LEXIS 4951 (U.S. 1991).

A trial court erred in declining to grant a motion for a new trial on the issue of damages in a wrongful death action where the jury had failed to return any damages for the value of the decedent’s life expectancy, the decedent’s pain and suffering, and the loss of the decedent’s companionship and society where an expert testified that the decedent’s lost net income was $70,495, the evidence was overwhelming that the decedent was alive and asking for help when he was inside the cab of a truck after the accident which caused his death, and the decedent’s brother and sister testified as to the closeness of their family. Jones v. Shaffer, 573 So. 2d 740, 1990 Miss. LEXIS 893 (Miss. 1990).

In an action to recover under the uninsured motorist provisions of a decedent’s policy brought by the decedent’s 2 personal representatives, each representative was not entitled to recover “per person” limits under the policy since the representatives’ status as insureds was due to their status as wrongful death beneficiaries under §11-7-13, which provides a derivative action by the beneficiaries. Thus, the representatives’ total recovery was limited to that amount to which the decedent would have been entitled, to be shared equally between them. Wickline v. United States Fidelity & Guaranty Co., 530 So. 2d 708, 1988 Miss. LEXIS 448 (Miss. 1988), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

Although automobile of tortfeasor who carries liability insurance in amount less than amount of coverage available to injured person under that person’s uninsured motorist provisions of injured person’s policies is “uninsured motor vehicle” by statutory definition (§83-11-103), uninsured motorist coverage may be reduced by offset for sums paid by another company on behalf of under-insured driver where uninsured motorist provision so provides; furthermore, although insurer’s maximum liability is aggregate of all uninsured motorist policies under which injured person is covered, “per person” limitations in policies refer to injured person only, not to persons who may make claim under policy. State Farm Mut. Auto. Ins. Co. v. Eubanks, 620 F. Supp. 17, 1985 U.S. Dist. LEXIS 17700 (N.D. Miss. 1985), aff'd, 785 F.2d 1346, 1986 U.S. App. LEXIS 23704 (5th Cir. Miss. 1986).

A railroad employee leaving only a widow and minor children, a suit for damages may be brought by them only for damages for his death. Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 1907 Miss. LEXIS 213 (Miss. 1907), aff'd, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 1910 U.S. LEXIS 2076 (U.S. 1910).

23. —Elements of damages.

Survival claims described in Miss. Code Ann. §11-7-13, the wrongful-death statute, are, by specific statutory language, limited to damages which a deceased person could have pursued if death had not ensued. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Hedonic damages are not available in a wrongful death action absent proof that the decedent survived long enough to suffer such damages. Choctaw Maid Farms, Inc. v. Hailey, 2001 Miss. LEXIS 302 (Miss. Oct. 31, 2001).

The trial judge erred in finding that the plaintiff established no right to recover for loss of society and companionship arising from the death of her 23-year-old son, even in the absence of evidence of her own life expectancy, as she should have been allowed to recover for her past loss of society and companionship in the years between her son’s death and the date of trial. Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 2000 Miss. LEXIS 244 (Miss. 2000).

The trial judge erred in refusing to allow the plaintiff to introduce evidence of funeral expenses for her son based on the fact that she could not establish that she had paid those expenses personally; such a showing is not a prerequisite for recovering funeral expenses in a wrongful death case. Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 2000 Miss. LEXIS 244 (Miss. 2000).

Wrongful death action is to compensate beneficiary for loss of companionship and society of decedent, pain and suffering of decedent between time of injury and death, and punitive damages and, thus, beneficiary need only establish some of those elements in order to recover for decedent’s wrongful death. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Although adopted child might have had difficult time establishing certain damages in wrongful death suit arising from death of his natural father, particularly in establishing loss of love, society, companionship, loss of household services, loss of gifts, gratuities, remembrances, and support, he could nevertheless bring wrongful death action seeking present net cash value for father’s life expectancy, loss of companionship and society of father, damages for father’s pain and suffering between time of injury and death, and punitive damages. Estate of Jones v. Howell, 687 So. 2d 1171, 1996 Miss. LEXIS 421 (Miss. 1996).

Momentary anxiety caused by anticipation of an accident does not support an award of damages for pain and suffering under the wrongful death statute. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615, 1988 Miss. LEXIS 437 (Miss. 1988).

Under §11-7-13, recoverable damages include the present net cash value of the life expectancy of the deceased, the loss of the companionship and society of the decedent, the pain and suffering of the decedent between the time of injury and death, and punitive damages. McGowan v. Estate of Wright, 524 So. 2d 308, 1988 Miss. LEXIS 50 (Miss. 1988).

Wrongful death statute (§11-7-13) does not provide for prejudgment interest on estimated earnings from time of decedent’s death to time of trial. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by the personal representative of the deceased, all damages may be recovered in such suit, although the declaration should be in two counts with reference to the damages sought, one count seeking damages recoverable by the survivors listed in the statute, with the other count seeking damages recoverable by the personal representative as assets of the estate such as damage to real or personal property, funeral expenses and medical expenses. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

If the deceased is survived by wife, husband, child, father, mother, sister or brother and suit is brought by one of such persons, there can only be one suit for the benefit of all entitled to share in the distribution, and the damages recoverable in such suit are punitive damages, pain and suffering of the deceased and damages that his heirs might have suffered because of their personal relationship with the deceased, such as support and loss of companionship. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

In an action by an administratrix to recover for the wrongful death of her eight-year-old decedent, who was killed when struck by a truck, the trial court’s instruction that if the jury should find for the plaintiff, they might consider as a proper element of damages the present net cash value of the life of the deceased, if any, at the time of her death, was approved. Reed v. State, 232 Miss. 432, 99 So. 2d 455, 1958 Miss. LEXIS 290 (Miss. 1958).

In an action to recover damages for death of a son, the elements which the jury may consider appear to be medical, ambulance, doctor and hospital expense paid, or incurred, by plaintiff, loss of companionship, the present net cash value of the life of deceased at the time of his death, and such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all the damages of every kind to the mother. Boroughs v. Oliver, 226 Miss. 609, 85 So. 2d 191, 1956 Miss. LEXIS 437 (Miss. 1956).

In an action for wrongful death of a twenty-year-old boy in fixing the amount of the damage the jury should consider the present net cash value of the life of deceased at the time of his death. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

A husband is entitled to the services and earnings of his wife. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Surviving husband and children are entitled to recover for loss of society and companionship in death of their wife and mother, excluding damages by way of solatium. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In suit for death of five-year-old child brought by parents and the brothers and sisters, recovery may include value of services of child from time of death to majority, such damages as jury may fairly award as compensation for physical and mental anguish endured by such child between time of injury and death, such gratuities as parents had reasonable expectation of receiving before or after majority and whatever sum child might have recovered as present value of his own expectancy. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Value of husband’s support of wife and his association, society and companionship are proper elements of damage in death action. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

In death action, value of decedent’s life expectancy is not proper element of damages. Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, 1931 Miss. LEXIS 173 (Miss. 1931).

In action under statute for death, proper parties may recover value of loss of decedent’s companionship and society. Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 1929 Miss. LEXIS 75 (Miss. 1929).

In a suit where the claim for damages is limited to those of the decedent the net value of life expectancy cannot be recovered. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

Damages for life expectancy and for the amount decedent would have expended in the support of his children during minority and for support of his wife during her lifetime and for loss of his society, protection and companionship cannot all be recovered. New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104, 1920 Miss. LEXIS 565 (Miss. 1920); Hines v. Moore, 124 Miss. 500, 87 So. 1 (Miss. 1921).

The surviving brothers and sisters may recover damages for loss of companionship. Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

They may also recover the present value of his life expectancy. Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

There can be no damages for pain and suffering where death was instantaneous. Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

In determining damages a jury may consider the loss of companionship, protection and society of the deceased but not solatium. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 1911 Miss. LEXIS 164 (Miss. 1911).

The value of life expectancy is an element of damages in an action by parent to recover damages for her son’s death. Mississippi Cotton Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 1909 Miss. LEXIS 241 (Miss. 1909).

Four elements of damages proper to be considered in an action by a parent to recover for the death of a minor child: (1) the value of the child’s services from the time of its death until majority, (2) such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child between the time of injury and death, (3) such gratuities as the parent had a reasonable expectation of receiving before or after majority, and (4) whatever sum the child might have recovered as the present value of his own expectancy. Cumberland Tel. & Tel. Co. v. Anderson, 89 Miss. 732, 41 So. 263, 1906 Miss. LEXIS 2 (Miss. 1906).

In a suit by a parent, loss of the child’s society and comfort the parent would have had in rearing him are not elements of damages. Mobile & O. R. Co. v. Watly, 69 Miss. 145, 13 So. 825, 1891 Miss. LEXIS 162 (Miss. 1891).

24. —Measure of damages.

In a personal injury products liability lawsuit, an award of damages to the decedent’s estate was not inflammatory because, considering the actual damages and the testimony of the decedent’s mother as to the family’s loss of society and companionship of a young son and brother on the verge of manhood, and the pain and suffering that he must have experienced between the time of the tire’s rupture when he was alive and when the rolling automobile stopped against a tree and he was dead, the jury’s award was proper. There was evidence to support the damages, and the jury award to the estate was not based upon hedonic damages. Goodyear Tire & Rubber Co. v. Kirby, 156 So.3d 281, 2009 Miss. App. LEXIS 221 (Miss. Ct. App. 2009).

In death action, plaintiff may recover present value of any pecuniary advantage which evidence discloses plaintiff might reasonably have expected from continuance of decedent’s life. Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, 1931 Miss. LEXIS 173 (Miss. 1931).

The present life expectancy of a decedent should be discounted six per cent, per annum for the period it has to run and there should be taken into account the living expenses of the deceased which must be deducted in determining damages for life expectancy of deceased. Louisville & N. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, 1922 Miss. LEXIS 90 (Miss. 1922).

Recovery for services of a child would not extend beyond his minority. Davis v. McCullers, 126 Miss. 521, 89 So. 158, 1921 Miss. LEXIS 61 (Miss. 1921).

Where the employment of a minor without his mother’s consent constitutes an actionable wrong, her measure of damages can be no greater than if the master were guilty of negligence in the killing of the boy. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803, 1917 Miss. LEXIS 364 (Miss. 1917).

25. —Amount of damages.

In a wrongful death action arising from the death of an 85-year-old man in an automobile collision, a jury verdict in the amount of $150,000 comported with the evidence and, therefore, a remittitur was not warranted where the damages awarded were not just for the wrongful death of the decedent because the decedent suffered severe pain, suffering and mental anguish for 2 months prior to death as a result of the injuries he sustained in the collision, the decedent had at least 7.3 years of life remaining according to life tables in effect at the time of his death, the plaintiff was the decedent’s only child, and the plaintiff and the decedent were extremely close and communicated daily. Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So. 2d 713, 1989 Miss. LEXIS 517 (Miss. 1989).

Wrongful death award based on future earnings of deceased should be reduced by amount of income tax deceased would have paid on earnings. Smith v. Industrial Constructors, Inc., 783 F.2d 1249, 1986 U.S. App. LEXIS 22729 (5th Cir. Miss. 1986).

A jury verdict for $100,000 for the wrongful death of decedent who was 41 years of age, with a life expectancy of 31.29 years, who earned $200 a week, and left surviving him a widow and two young children who were dependent upon him, and the youngest of which was approximately two years old at the time of his death, was not so excessive as to indicate it was the result of passion or prejudice on the part of the jury. Oden Constr. Co. v. McPhail, 228 So. 2d 586, 1969 Miss. LEXIS 1394 (Miss. 1969).

Where deceased was, during his lifetime, a healthy, strong operator of a caterpillar tractor, skilled and earning an average wage of between $55 and $60 per week, was a good husband, and supported his wife and family, and had a life expectancy in excess of 40 additional years, and award of $4500 to his wife was inadequate. Campbell v. Schmidt, 195 So. 2d 87, 1967 Miss. LEXIS 1436 (Miss. 1967).

A jury award of $150,000 for the injuries and death of a woman 44 years old at the time of the accident, with a husband and four children, who received hyperextension injury to her neck and a trauma to her left breast which caused the metastasis of a dormant cancer from which she died three years after the accident, and who was hospitalized for 222 days, was grossly excessive, and the affirmance of the judgment against the defendant was conditioned upon the acceptance of a remittitur of $35,000. New Orleans & N. R. Co. v. Thornton, 191 So. 2d 547, 1966 Miss. LEXIS 1223 (Miss. 1966).

A verdict for $75,000 for the wrongful death of a five-year-old child, with a life expectancy of 64 years, was excessive by $35,000, and the Supreme Court would reverse the cause for new trial on issues of damages only unless plaintiffs entered a remittitur of $35,000. Bush Constr. Co. v. Walters, 250 Miss. 384, 164 So. 2d 900, 1964 Miss. LEXIS 469 (Miss. 1964).

Award of $5000, for death of man of 55, with a life expectancy of 17.78 years, who suffered excruciating pain for 3 days before his death, held grossly inadequate. City of Corinth v. Gilmore, 236 Miss. 296, 110 So. 2d 606, 1959 Miss. LEXIS 319 (Miss. 1959).

$17,500 damages for death of 67 year old mother, held not excessive. Ashcraft v. Alford, 236 Miss. 25, 109 So. 2d 343, 1959 Miss. LEXIS 289 (Miss. 1959).

A verdict in an action under this statute [Code 1942, § 1453] will not be set aside for inadequacy where its amount may be attributed to comparative negligence. Matheny v. Illinois C. R. Co., 235 Miss. 173, 108 So. 2d 589, 1959 Miss. LEXIS 415 (Miss. 1959).

An award of $3000 for the death of a 10-year-old boy killed in a highway accident was inadequate, even though that amount was probably uncollectible. Green v. Hatcher, 236 Miss. 830, 105 So. 2d 624, 1958 Miss. LEXIS 281 (Miss. 1958).

An award of $40,000 for the wrongful death of an eight-year-old child was not so excessive as to represent passion, prejudice and bias on the part of the jury. Reed v. Eubanks, 232 Miss. 27, 98 So. 2d 132, 1957 Miss. LEXIS 441 (Miss. 1957).

In determining whether the damages awarded for wrongful death are excessive, the test on review is whether the verdict is so excessive as to be the result of bias, prejudice, or passion on the part of jury. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

An award of $15,000 for the wrongful death of the decedent who had a life expectancy of thirty years and eight months was not so large as to evince passion or prejudice on the part of the jury. Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 57 So. 2d 859, 1952 Miss. LEXIS 483 (Miss. 1952).

Where the deceased at the time of his death was forty-two years of age and left surviving him his widow and two children and where he spent in the support and maintenance of his family $7,000 to $8,000 a year, a verdict of $47,000 by the jury is not so grossly excessive as to evince, bias, prejudice or passion. Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So. 2d 443, 1951 Miss. LEXIS 353 (Miss. 1951), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Verdict of $25,000 in favor of husband and three adult children for wrongful death of seventy-two year old woman was held excessive by $7500. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

Supreme Court in considering size of verdicts may take notice of inflationary conditions in the country with the consequent decrease in the purchasing value of money. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In action by parents and brothers and sisters for death of five-year-old child, verdict for $2,000 is not adequate damages. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665, 1949 Miss. LEXIS 403 (Miss. 1949).

Verdict for $7,500.00 in action for death of child killed by truck on highway is excessive. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

Verdict awarding widow $15,000 for death of husband earning $45 per week was excessive by $10,000, where the husband had deserted the wife and had refused to support her. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So. 2d 297, 1945 Miss. LEXIS 270 (Miss. 1945), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

An instance of excessive verdict $10,000.00 reduced to $5,000.00. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

An instance of inadequate damages awarded. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

An instance of a verdict being grossly inadequate. Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306, 1917 Miss. LEXIS 328 (Miss. 1917).

On the question of excessive verdict see Yazoo & M. V. R. Co. v. Farr, 94 Miss. 557, 48 So. 520, 1909 Miss. LEXIS 352 (Miss. 1909).

26. —Exemplary or punitive damages.

In a wrongful death action arising out of automobile collision occurring when defendant truck operator pulled out of the lane to pass a truck on a curve where he could not see an automobile approaching from the opposite direction, the question of whether the truck driver’s conduct was gross or reckless negligence was a question for the jury in considering recovering of exemplary damages. Bush v. Watkins, 224 Miss. 238, 80 So. 2d 19, 1955 Miss. LEXIS 486 (Miss. 1955).

If trespasser’s death on railroad tracks resulted from engineer’s failure to give warning signals after becoming aware of trespasser’s danger, trespasser’s administrator was entitled to have submitted to jury question of punitive damages, even if no actual damages were proved. Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342, 1933 Miss. LEXIS 302 (Miss. 1933).

In proper cases exemplary as well as compensatory damages may be allowed. Illinois C. R. Co. v. Fuller, 106 Miss. 65, 63 So. 265, 1913 Miss. LEXIS 97 (Miss. 1913).

Punitive damages are properly disallowed in the absence of wantonness or gross negligence. Carrier Lumber & Mfg. Co. v. Boxley, 103 Miss. 489, 60 So. 645, 1912 Miss. LEXIS 200 (Miss. 1912).

27. Compromise, settlement and release.

On a petition by a decedent’s husband to pay over escrow funds, a chancery court properly held that remaining settlement proceeds in a wrongful death action were wrongful death proceeds because Mississippi courts regularly distributed the proceeds of wrongful death settlements to the wrongful death beneficiaries; an antenuptial agreement between the decedent and her husband had no bearing on the settlement of the wrongful death claim. In re Estate of Burns, 31 So.3d 1227, 2009 Miss. App. LEXIS 482 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 176 (Miss. 2010).

Benefits payable under uninsured motorist insurance policy due to injuries resulting in death of insured need not be paid to persons designated under wrongful death statute (§11-7-13), but may be paid to surviving spouse in accordance with “facility of payment” clause. Overstreet v. Allstate Ins. Co., 474 So. 2d 572, 1985 Miss. LEXIS 2195 (Miss. 1985).

Where a decedent’s administrator settled a wrongful death suit against the tortfeasor without consideration of the rights of two minor children of the decedent who had been adopted by their paternal grandparents, the settlement did not bar the children from asserting their rights against the tortfeasor. Alack v. Phelps, 230 So. 2d 789, 1970 Miss. LEXIS 1562 (Miss. 1970).

A decree on an ex parte petition to settle an alleged doubtful claim for wrongful death is not res judicata in a death action brought by a next of kin. Evans v. Cheatwood, 329 F.2d 583, 1964 U.S. App. LEXIS 5932 (5th Cir. Miss. 1964).

Administrator can compromise and settle claim for death and execute valid release, where authorized by chancery court’s decree. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Settlement by administrator of claim for wrongful death properly authorized by chancery court’s decree, is binding on all interested parties. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Settlement for claim for death of 16-year-old boy for $2,000 cash and house and lot, by administrators under chancery court’s decree, held not inadequate. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Provision that determination of one suit for wrongful death shall not bar another action, unless decided on merits, does not apply where all parties interested acquiesced in settlement. Rowe v. Fair, 157 Miss. 326, 128 So. 87, 1930 Miss. LEXIS 290 (Miss. 1930).

Widow’s release of railroad from liability for death of husband and property damage did not bar action by lien creditor to recover balance of purchase price of automobile destroyed. General Motors Acceptance Corp. v. New Orleans & G. N. R. Co., 156 Miss. 122, 125 So. 541, 1930 Miss. LEXIS 138 (Miss. 1930).

When the suit is brought by the widow for the death of a husband or father, she can compromise and thereby bind her children. Natchez Cotton-Mills Co. v. Mullins, 67 Miss. 672, 7 So. 542, 1890 Miss. LEXIS 125 (Miss. 1890).

28. Res judicata.

Earlier federal lawsuit by survivors of workers who were killed in propylene gas explosion against manufacturer and bulk distributor of gas, in which defendants had been granted summary judgment, operated under doctrine of res judicata to bar state court action by survivors against downstream distributors of gas; subject matter in both actions was identical, causes of action were the same even though federal suit was labeled products liability case and state action was wrongful death action based on manufacturing defect, and downstream distributors were privies of bulk distributor and were of same quality or character. Little v. V & G Welding Supply, 704 So. 2d 1336, 1997 Miss. LEXIS 782 (Miss. 1997).

29. Unborn child.

Father and his children failed to provide the Attorney General with notice of their constitutional challenge at the trial level because they notified the Attorney General of their challenge to the constitutionality of Miss. Code Ann. §91-1-15 in their notice of appeal; thus, the father and children did not comply with the requirements of Miss. R. Civ. P. 24(d), and their challenge to the constitutionality of the wrongful death statute’s incorporation of §91-1-15(3) was procedurally barred. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Doctrine of unclean hands was inapplicable because a mother’s failure to give a father notice of a wrongful death acton did not amount to a willful act that transgressed equitable standards of conduct; the mother and the father were never married, the father consistently denied paternity of the deceased child, and the father failed to meet the statutory requirements to constitute a wrongful death beneficiary of the child. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

From Miss. Code Ann. §11-7-13 it was clear that in order for a father to be entitled to proceeds from a wrongful death action for an illegitimate child, he had to establish his right to inherit from the child under Miss. Code Ann. §91-1-15, which included the §91-1-15(3)(d)(i) requirements; therefore, the father’s argument was without merit where the father made no effort to be a parent to the child, suffered no loss as a result of the child’s demise, and any part of the settlement received by the father and his kindred could only have been termed a windfall and unjust enrichment. Williams v. Farmer, 876 So. 2d 300, 2004 Miss. LEXIS 760 (Miss. 2004).

Miss. Code Ann. §11-7-13 includes a nonviable fetus who is “quick” in the womb (i.e, has developed so that it moves within the mother’s womb) as a “person”; the cause of action dates from the death of the fetus, and the determination of whether a fetus is “quick” in the womb is assigned to the jury. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104, 2003 Miss. LEXIS 374 (Miss. 2003).

Where plaintiff sued defendants for causing her to miscarry while she was five months pregnant, the trial court properly denied partial summary judgment to defendants on her wrongful death claims, as (1) under Miss. Code Ann. §11-7-13, a nonviable, unborn child who was “quick” in the womb was a “person”; and (2) whether the child was “quick” was for the jury to decide. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104, 2003 Miss. LEXIS 374 (Miss. 2003).

A non-viable fetus can recover for the death of a parent under the wrongful death statute. Childs v. GMC, 73 F. Supp. 2d 669, 1999 U.S. Dist. LEXIS 15757 (N.D. Miss. 1999).

Wrongful death action can be maintained for death of unborn child who reaches prenatal age of viability. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

Child who at time of his brother’s death was unborn fetus, at six and one-half months gestation, was “living” at that time for purposes of wrongful death statute, and thus, he was beneficiary under that statute after his birth; medical evidence showed that, at time of his brother’s death, child had reached prenatal age of viability when destruction of his mother’s life would not necessarily mean end of his life. Fizer v. Davis (In re Estate of Davis), 706 So. 2d 244, 1998 Miss. LEXIS 16 (Miss. 1998).

30. Adopted child.

Termination of a deceased father’s parental rights to a natural son and the son’s adoption in Michigan did not bar a chancery court from naming the son as the father’s sole wrongful death beneficiary because, under governing Mississippi law, a natural son could nonetheless be so designated, despite contrary Michigan statutes. Alexander v. DeForest (In re Determination of Wrongful Death Heirs of Underhill), 262 So.3d 1111, 2019 Miss. LEXIS 54 (Miss. 2019).

Finding that the half-brother of the decedent, who was adopted by another man, was entitled to a one-third share of the decedent’s wrongful death settlement proceeds was proper where an adopted child had full rights to inherit from his natural family, just as if there had been no adoption; thus, the half-brother, as the natural half-brother, was a statutory heir-at-law and wrongful death beneficiary of the decedent. Estate of Yount v. McKnight, 845 So. 2d 724, 2003 Miss. App. LEXIS 427 (Miss. Ct. App. 2003).

31. Jurisdiction.

Trial court properly dismissed a daughter’s wrongful death actions against a doctor and a medical center because it took jurisdiction over her first lawsuit against another physician to the exclusions of the lawsuits against the doctor and medical center, and those subsequently filed actions were of no effect; so long as the first lawsuit was pending, the subsequently filed actions for the same death were of no effect. Estate of Davis v. Blaylock, 212 So.3d 755, 2017 Miss. LEXIS 2 (Miss. 2017).

Dismissal of a wrongful death suit against a hospital was error because, although an earlier wrongful death suit arising from the same incident had been filed against a nursing home, that suit had been dismissed by the time the motion to dismiss was addressed by the trial court, thus it was null and void, and the second suit against the hospital was the only suit pending for Miss. Code Ann. §11-7-13 purposes. Briere v. S. Cent. Reg'l Med. Ctr., 3 So.3d 126, 2009 Miss. LEXIS 89 (Miss. 2009).

The first court to properly take jurisdiction of a wrongful death action in Mississippi courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently filed action for the same death shall be of no effect. Long v. McKinney, 897 So. 2d 160, 2004 Miss. LEXIS 1404 (Miss. 2004).

32. Collateral source rule.

In a wrongful death action, none of the attorneys or witnesses discussed which particular bills Medicare paid, and the hospital made no attempt to persuade the jury that payments from Medicare should have served to reduce the amount of damages awarded. Consequently, the collateral source rule did not apply; additionally, since the decedent’s widow mentioned Medicare in her direct testimony and the only use of Medicare in the hospital’s cross examination was to clear up the amount of lost monthly income, the trial judge did not abuse his discretion in allowing said testimony. Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721, 2005 Miss. LEXIS 385 (Miss. 2005).

RESEARCH REFERENCES

ALR.

Instruction mentioning or suggesting specific sum as damages in action for personal injury or death. 2 A.L.R.2d 454.

Contributory negligence of parent as bar to an action by parent or administrator for death of child. 2 A.L.R.2d 785.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Claim for wrongful death as subject of counterclaim or cross action in negligence action against decedent’s estate, and vice versa. 6 A.L.R.2d 256.

Liability for injury to or death of participant in game or contest. 7 A.L.R.2d 704.

Marriage of child, or probability of marriage, as affecting right or measure of recovery by parents in death action. 7 A.L.R.2d 1380.

Prenatal injury as ground of action. 10 A.L.R.2d 1059, 27 A.L.R.2d 1256.

Right of defendant in action for personal injury or death to bring in joint tortfeasor for purpose of asserting right of contribution. 11 A.L.R.2d 228.

Civil liability for death by suicide. 11 A.L.R.2d 751.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death. 12 A.L.R.2d 611.

Death of or injury to occupant of airplane from collision or near collision with another aircraft. 12 A.L.R.2d 677.

Proof to establish or negative self-defense in civil action for death from intentional act. 17 A.L.R.2d 567.

Action against spouse or state for causing death of other spouse. 28 A.L.R.2d 662.

Right of action for wrongful death as subject to claims of creditors. 35 A.L.R.2d 1443.

Venue of wrongful death action. 36 A.L.R.2d 1146.

Effect of death of a beneficiary upon right of action under death statute. 43 A.L.R.2d 1291.

Effect of death of beneficiary upon right of action under death statute. 43 A.L.R.2d 1291.

Capacity of local or foreign representative to maintain death action under foreign statute providing for action by personal representative. 52 A.L.R.2d 1016.

Retroactive effect of statute changing distribution of recovery or settlement for wrongful death. 66 A.L.R.2d 1444.

Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent. 72 A.L.R.2d 1235.

Admissibility in wrongful death action of testimony of actuary or mathematician to establish present worth of pecuniary loss. 79 A.L.R.2d 259.

Admissibility, in death action for benefit of minor children, of evidence of decedent’s desertion, nonsupport, abandonment, etc., of children. 79 A.L.R.2d 819.

Damages for wrongful death of husband or father as affected by receipt of social security benefits. 84 A.L.R.2d 764.

Wrongful death damages for loss of expectancy of inheritance from decedent. 91 A.L.R.2d 477.

Conflict of laws as to measure or amount of damages in death actions. 92 A.L.R.2d 1180.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child. 94 A.L.R.2d 1237.

Fact that tortfeasor is member of class of beneficiaries as affecting right to maintain action for wrongful death. 95 A.L.R.2d 585.

What law governs right to contribution or indemnity between tortfeasors. 95 A.L.R.2d 1096.

Time from which statute of limitations begins to run against cause of action for wrongful death. 97 A.L.R.2d 1151.

Action for death of unborn child. 15 A.L.R.3d 992.

Rescue doctrine: applicability to situation created by breach of warranty. 44 A.L.R.3d 473.

Profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death. 45 A.L.R.3d 345.

Liability of governmental entity or public official for personal injury or damages arising out of vehicular accident due to negligent or defective design of a highway. 45 A.L.R.3d 875.

Parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child. 53 A.L.R.3d 566.

Modern status of rule denying a common-law recovery for wrongful death. 61 A.L.R.3d 906.

Death action by or in favor of parent against unemancipated child. 62 A.L.R.3d 1299.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Remarriage of surviving parent as affecting action for wrongful death of child. 69 A.L.R.3d 1038.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death accrued before marriage. 69 A.L.R.3d 1046.

Carrier’s liability for injury or death of infant passenger as affected by fact that child was in custody of parent or other adult. 74 A.L.R.3d 1171.

Recovery, in action for benefit of decedent’s estate in jurisdiction which has both wrongful death and survival statutes, of value on earnings decedent would have made after death. 76 A.L.R.3d 125.

Recovery for mental or emotional distress resulting from injury to, death of, member of plaintiff’s family arising from physician’s or hospital’s wrongful conduct. 77 A.L.R.3d 447.

Admissibility and sufficiency of proof of value of housewife’s services, in wrongful death action. 77 A.L.R.3d 1175.

Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father. 78 A.L.R.3d 1230.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent. 87 A.L.R.3d 849.

Liability for child’s personal injuries or death resulting from tort committed against child’s mother before child was conceived. 91 A.L.R.3d 316.

Elements and measure of damages for breach of warranty in sale of horse. 91 A.L.R.3d 419.

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.

Validity of release of prospective right to wrongful death action. 92 A.L.R.3d 1232.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa. 94 A.L.R.3d 676.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060.

Propriety of taking income tax into consideration in fixing damages in personal injury or death action. 16 A.L.R.4th 589.

Judgment in favor of, or adverse to, person injured as barring action for his death. 26 A.L.R.4th 1264.

Exterminator’s tort liability for personal injury or death directly resulting from operations. 29 A.L.R.4th 987.

State or local governmental unit’s liability for injury to private highway construction worker based on its own negligence. 29 A.L.R.4th 1188.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker. 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations. 47 A.L.R.4th 134.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons. 48 A.L.R.4th 229.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor. 49 A.L.R.4th 1076.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations. 50 A.L.R.4th 787.

Wrongful death: surviving parent’s minority as tolling limitation period on suit for child’s wrongful death. 54 A.L.R.4th 362.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent. 61 A.L.R.4th 251.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse. 61 A.L.R.4th 309.

Excessiveness or adequacy of damages awarded for parents’ noneconomic loss caused by personal injury or death of child. 61 A.L.R.4th 413.

Effect of death of beneficiary, following wrongful death, upon damages. 73 A.L.R.4th 441.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Recovery of damages for loss of consortium resulting from death of child-modern status. 77 A.L.R.4th 411.

Products liability: cigarettes and other tobacco products. 36 A.L.R.5th 541.

Wrongful death damages for loss of expectancy of inheritance from decedent. 42 A.L.R.5th 465.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death. 46 A.L.R.5th 557.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Liability of owner of wires, poles, or structures struck by aircraft for resulting injury or damage. 49 A.L.R.5th 659.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Liability of health maintenance organizations (HMOs) for negligence of member physicians. 51 A.L.R.5th 271.

The government-contractor defense to state products-liability claims. 53 A.L.R.5th 535.

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death or patron. 54 A.L.R.5th 513.

Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child. 70 A.L.R.5th 461.

Skier’s liability for injuries to or death of another person. 75 A.L.R.5th 583.

Who, Other Than Parent, May Recover For Loss of Consortium on Death of Minor Child. 84 A.L.R.5th 687.

Propriety of considering future income taxes in awarding damages under Federal Tort Claims Act. 47 A.L.R. Fed. 735.

Am. Jur.

22A Am. Jur. 2d, Death §§ 116- 122, 126- 135, 181- 191.

7 Am. Jur. Pl & Pr Forms (Rev), Compromise and Settlement, Forms 31 et seq. (compromise and settlement of wrongful death actions).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Forms 1 et seq. (actions for wrongful death in general); 41 et seq. (availability of damages under wrongful death statute); 61 et seq. (parties entitled to bring action).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Form 8.2 (Complaint, petition, or declaration – Under combined wrongful death and survival statute – Death while in police custody).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Form 9.1 (Complaint under wrongful death statute – Action against municipality – Fatal shooting during execution of search warrant).

8 Am. Jur. Pl & Pr Forms (Rev), Death, Forms 1-18, 51-83 (Actions for wrongful death).

18A Am. Jur. Pl & Pr Forms (Rev), Negligence, Form 149.2 (Complaint, petition, or declaration – By family of decedent – Against owner of building where fatal shooting occurred).

19A Am. Jur. Pl & Pr Forms (Rev), Penal and Correctional Institutions, Form 5.1 (Complaint, petition, or declaration – Against municipal corporation – Failure to prevent suicide of jail inmate – Survival and wrongful death action).

5 Am. Jur. Legal Forms 2d, Compromise and Settlement § 63:71 (wrongful death).

11 Am. Jur. Trials, Representation of Survivors in Death Actions.

12 Am. Jur. Trials, Wrongful Death Actions.

20 Am. Jur. Trials, damages for wrongful death of, or injury to, child, §§ 1 et seq.

28 Am. Jur. Trials, 307 Wrongful Death of Minor in Police Custody.

37 Am. Jur. Trials 1, Crib Death Litigation.

24 Am. Jur. Proof of Facts 2d 211, Wrongful Death Damages – Loss of Prospective Inheritance.

27 Am. Jur. Proof of Facts 2d 393, Loss of Consortium in Parent-Child Relationship.

38 Am. Jur. Proof of Facts 2d 195, Forensic Economics – Period of Economic Loss in Death and Personal Injury Cases.

49 Am. Jur. Proof of Facts 2d 191, Damages for Wrongful Death of Child.

24 Am. Jur. Proof of Facts 3d 337, Proof of Damages for Decedent’s Pain and Suffering.

25 Am. Jur. Proof of Facts 3d 251, Proof of Damages in Wrongful Death or Survival Action.

CJS.

25A C.J.S., Death §§ 135–199, 211-218, 219, 220, 273-308.

Law Reviews.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I. 16 Miss. C. L. Rev. 393, Spring, 1996.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

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.

Damages Recoverable in Mississippi for the Wrongful Death of an Adult. 53 Miss. L. J. 637, December, 1983.

1983 Mississippi Supreme Court Review: Inapplicability of savings statute to wrongful death actions. 54 Miss. L. J. 169, March, 1984.

Brady, Hedonic damages. 59 Miss. L. J. 495, Fall 1989.

Hedonic Damages: A Variation in Paths, The Questionable Expert and a Recommendation for Clarity in Mississippi. 65 Miss. L. J. 735, Spring 1996.

Sleeping Double in a Single Bed – Personal Consumption in Wrongful Death, 25 Miss. C. L. Rev. 159, Spring, 2006.

Comment: “I’m Not Dead Yet!”: An Analysis of the Recent Supreme Court of Mississippi’s Wrongful Death Jurisprudence, 27 Miss. C. L. Rev. 235, 2007/2008.

§ 11-7-15. Contributory negligence no bar to recovery of damages; jury may reduce damages.

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

HISTORY: Codes, Hemingway’s 1917, § 502; 1930, § 511; 1942, § 1454; Laws, 1910, ch. 135; Laws, 1920, ch. 312.

Cross References —

Liability of railroad company for negligence and mismanagement, see §77-9-435.

Exemption of personal injury judgment from execution for debt, see §85-3-3 et seq.

JUDICIAL DECISIONS

1. In general.

2. Construction and application, generally.

3. Contributory negligence in general.

4. Pleading and proof.

5. Effect of negligence of defendant.

6. Extent of recovery.

7. Evidence.

8. Questions for jury.

9. Instructions.

10. — Peremptory instruction.

11. Damages.

12. —Amount of damages.

1. In general.

The “open and obvious” defense to negligence actions would be abolished, and damages would be determined through application of the true comparative negligence doctrine; thus, a trial judge erred in construing the open and obvious defense as a complete bar to the recovery of damages, since it should only be used to mitigate damages on a comparative negligence basis under §11-7-15. Tharp v. Bunge Corp., 641 So. 2d 20, 1994 Miss. LEXIS 358 (Miss. 1994).

Under the comparative negligence doctrine, negligence is measured in terms of a percentage, and any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is sought; where negligence by both parties is concurrent and contributes to the injury, recovery is not barred, but the plaintiff’s damages are diminished proportionately, and therefore a plaintiff, though negligent, may still recover from a defendant whose negligence contributed to his or her injuries. Burton v. Barnett, 615 So. 2d 580, 1993 Miss. LEXIS 90 (Miss. 1993).

A court should not, by its decree, fail to give effect to the statute. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

A common-law rule as to contributory negligence may be modified or abolished by statute. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

This statute [Code 1942, § 1454] is not unconstitutional. Natchez & S. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596, 1911 Miss. LEXIS 240 (Miss. 1911).

2. Construction and application, generally.

In order to recover damages under this statute, a plaintiff would first have to prove by a preponderance of the evidence that a defendant’s negligent conduct was both the cause-in-fact and the proximate cause of the resulting injuries, and in this case, plaintiffs failed to meet this burden of proof; the law is neither manifestly wrong nor mischievous and the Mississippi Supreme Court declines to overturn Mississippi’s longstanding causation standard. Norman v. Anderson Reg'l Med. Ctr., 262 So.3d 520, 2019 Miss. LEXIS 40 (Miss. 2019).

Comparative-negligence analysis was not necessary because appellant was the sole proximate cause of his electrocution, and assuming that a defendant in the underlying suit was negligent in the design or construction of the runway lighting system, that alleged negligence was not a cause in fact of his electrocution. McDaniel v. Ferrell, 232 So.3d 814, 2017 Miss. App. LEXIS 646 (Miss. Ct. App. 2017).

In a negligence case, an owner’s motion for a new trial under Miss. R. Civ. P. 59 should have been granted because the evidence showed the owner did not exercise substantial control over a worksite, despite having control over safety and specifying a daily or hourly rate; moreover, it was undisputed that the injured party’s actions were negligent for comparative negligence purposes. Coho Res., Inc. v. Chapman, 913 So. 2d 899, 2005 Miss. LEXIS 266 (Miss. 2005).

Comparative negligence is applicable to an action sounding in strict liability. Pickering v. Industria Masina I Traktora, 740 So. 2d 836, 1999 Miss. LEXIS 175 (Miss. 1999).

From the points of view of both civil justice and economic efficiency, comparative negligence, as an approach to the effect that ought to be given a plaintiff’s contributory fault, is demonstrably superior to the traditional common law contributory negligence bar. Thus, although Tennessee law controlled several other liability issues in a wrongful death action, the effect of the decedent’s negligence, if any, would be governed by §11-7-15 to the exclusion of the Tennessee contributory negligence rule. McDaniel v. Ritter, 556 So. 2d 303, 1989 Miss. LEXIS 501 (Miss. 1989).

In a wrongful death action brought by a minor decedent’s parents, defendant was not entitled to contribution from the child’s father, even though he was a joint tortfeasor, where the child could not have sued his father for damages had death not ensued; further, a diminution of damages was available only when the injured party, not a statutory beneficiary, had been contributorily negligent. Hood v. Dealers Transport Co., 472 F. Supp. 250, 1979 U.S. Dist. LEXIS 12939 (N.D. Miss. 1979).

In an action arising out of a train/car collision at a railroad crossing, a finding that the train crew had a “better chance” to avoid the collision did not preclude consideration of plaintiff’s contributory negligence in failing to stop at a stop sign which should have been visible to him. Newman v. Missouri P. R. Co., 421 F. Supp. 488, 1976 U.S. Dist. LEXIS 12706 (S.D. Miss. 1976), aff'd in part and rev'd in part, 545 F.2d 439, 1977 U.S. App. LEXIS 10550 (5th Cir. Miss. 1977).

Code 1942, § 1454, has no application where the negligence of the injured person is the sole proximate cause of the injury, or where the sole proximate cause of the accident is the defendant’s negligence. Salster v. Singer Sewing Machine Co., 361 F. Supp. 1056, 1973 U.S. Dist. LEXIS 12810 (N.D. Miss. 1973).

Settlement by the railroad company of an action for damages brought by the estate of the driver of a petroleum tank truck, killed as the result of a railroad crossing collision, was no more and no less than a non-litigated, court-approved compromise effectuated to avoid the risk of litigation and did not establish, conclusively or otherwise, that the negligence of the railroad far exceeded that of the truck driver so as to collaterally estop the railroad from collecting property damages from the driver’s principals. Standard Oil Co. v. Illinois C. R. Co., 421 F.2d 201, 1969 U.S. App. LEXIS 9590 (5th Cir. Miss. 1969).

Although the question of contributory negligence was not involved in an action for the wrongful death of a passenger in an automobile, it was an issue in a subsequent case arising from the same collision brought for the wrongful death of the driver of the automobile in which the passenger was riding. Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

The fact that the defendant railraod had previously recovered in federal court a judgment for damage sustained by its locomotive as a consequence of a collision with a truck driven by the plaintiff is no bar, under this section [Code 1942, § 1454], to plaintiff’s recovery of a judgment for the personal injuries he sustained in the accident. New Orleans & N. R. Co. v. Gable, 252 Miss. 605, 172 So. 2d 421, 1965 Miss. LEXIS 1132 (Miss. 1965).

Motion to correct judgment. Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So. 2d 2, 1963 Miss. LEXIS 392, 1964 Miss. LEXIS 266 (Miss. 1963).

This provision [Code 1942, § 1454] includes the question of proximate cause as well as negligence. Massengale v. Taylor, 246 Miss. 521, 150 So. 2d 859, 1963 Miss. LEXIS 473 (Miss. 1963).

Plaintiff’s voluntary intoxication having contributed to accidental fall down dangerous steps. Fournier v. United States, 220 F. Supp. 752, 1963 U.S. Dist. LEXIS 7401 (S.D. Miss. 1963).

The comparative negligence statutes does not apply where the only negligence shown is that of plaintiff. Camurati v. Sutton, 48 Tenn. App. 54, 342 S.W.2d 732, 1960 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1960).

The right to take comparative negligence into account may justify an otherwise inadequate verdict. Matheny v. Illinois C. R. Co., 235 Miss. 173, 108 So. 2d 589, 1959 Miss. LEXIS 415 (Miss. 1959).

This section [Code 1942, § 1454] is not in conflict with the statute which provides that where each party is found to have a claim against the other, verdict shall be rendered for the excess. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

Under this section [Code 1942, § 1454] and Code 1942, § 1456 abolishing doctrine of assumption of risk, when negligence once has been shown on part of master followed by injury to servant, the only way master can entirely escape liability is to show his negligence was not a proximate cause of the injury or that the servant’s own negligence, or negligence of fellow-servant, was the sole proximate cause of the plaintiff’s injury. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

The doctrine of assumption of risk, not that of contributory negligence, was applicable where the deceased rode in the front seat with the drunken driver of a truck, which he knew was not equipped to haul passengers, without objection or effort to leave the truck. Saxton v. Rose, 201 Miss. 814, 29 So. 2d 646, 1947 Miss. LEXIS 451 (Miss. 1947).

When the proximate cause of employee’s injuries is the failure of the employee to use an instrumentality in the normal or proper way, such failure goes to the entire cause of action, and not to a mere diminution of damages. Stewart v. Kroger Grocery, etc. Co., 198 Miss. 371, 21 So. 2d 912, 1945 Miss. LEXIS 207 (Miss. 1945).

This statute [Code 1942, § 1454], when invoked, does not leave it to the option of court or jury to disregard or absolve contributory negligence when shown, but the duty of the jury in such cases is made mandatory. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Where defendant’s driver was grossly negligent in entering intersection at 50 miles per hour without stopping, and collided with plaintiff’s driver who, in entering the intersection on a through street at unabated speed of 30 miles per hour, was prima facie negligent, the negligence of plaintiff’s driver was a contributing factor to the accident and warranted application of the comparative negligence statute. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Code 1930, §§ 511 and 512, Code 1942, §§ 1454 and 1455, abolished contributory negligence as a defense and makes negligence and contributory negligence questions for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

This section [Code 1942, § 1454] is not applicable to a depositor’s action against the bank for damage to credit and reputation resulting from improper dishonoring of checks. Weaver v. Grenada Bank, 180 Miss. 876, 179 So. 564, 1938 Miss. LEXIS 47 (Miss. 1938).

This statute [Code 1942, § 1454] is part of the substantive law of Mississippi and must be followed by the Federal Court sitting in that state. Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928, 1934 U.S. App. LEXIS 5027 (5th Cir. Miss. 1934); Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

This statute [Code 1942, § 1454] does not deal with degrees of contributory negligence, but merely with contributory negligence of every character. Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013, 1912 Miss. LEXIS 238 (Miss. 1912); Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

Common-law rule that master is not liable to servant for defects in simple tools held not changed by this section [Code 1942, § 1454]. Middleton v. National Box Co., 38 F.2d 89, 1930 U.S. Dist. LEXIS 1837 (D. Miss. 1930); Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652, 1933 Miss. LEXIS 155 (Miss. 1933).

In an action for the death of a bus passenger resulting from a collision between the bus and a train, negligence of the bus driver could not be imputed to the passenger. Gulf & S. I. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168, 1924 Miss. LEXIS 210 (Miss. 1924).

This statute [Code 1942, § 1454] does not repeal other statutes regulating the conduct of a railroad company. Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

This statute [Code 1942, § 1454] does not deal with degrees of contributory negligence, but merely with contributory negligence of every character. Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013, 1912 Miss. LEXIS 238 (Miss. 1912); Mississippi C. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838, 1914 Miss. LEXIS 36 (Miss. 1914).

3. Contributory negligence in general.

Trial court properly granted a limited liability company (LLC) summary judgment in wrongful death beneficiaries’ action because the LLC could act only through a pilot since he was its sole member, and the beneficiaries were barred from recovering for the pilot’s negligence; if the pilot had survived the crash, he would have been unable to recover from the LLC for his own negligence, and the beneficiaries stood in the pilot’s shoes and also could not recover for his negligence. Howarth v. M&H Ventures, LLC, 237 So.3d 107, 2017 Miss. LEXIS 429 (Miss. 2017).

Trial court erred in granting private contractors summary judgment on the basis that a widow’s wrongful death claim would require it to question military decisions because they failed to show that adjudication of a ballistic wall’s failure would implicate a political question; the contractors did not show that they would put forward a viable contributory negligence defense because the claim that the wall failed could stand without implicating a decision committed to the military’s discretion. Ghane v. Mid-South Inst. of Self Def. Shooting, Inc., 137 So.3d 212, 2014 Miss. LEXIS 32 (Miss.), cert. denied, 574 U.S. 821, 135 S. Ct. 108, 190 L. Ed. 2d 41, 2014 U.S. LEXIS 5713 (U.S. 2014).

Motel guests who sustained damages as victims of an armed robbery at the motel did not have a duty to mitigate their damages by abiding by the robbers’ demands and, therefore, the trial court did not abuse its discretion in denying the motel owners’ request for a comparative negligence jury instruction. Intown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 2011 Miss. LEXIS 336 (Miss. 2011).

Where an injured motorist, who was experiencing chest discomfort, pulled his vehicle partly off the highway, but partly obstructed the right-hand lane of travel in violation of Miss. Code Ann. §63-3-903, the motorist’s act was a proximate and contributing cause an accident, and the trial court did not err by allowing the jury to apportion fault. Meka v. Grant Plumbing & Air Conditioning Co., 67 So.3d 18, 2011 Miss. App. LEXIS 402 (Miss. Ct. App. 2011).

Mississippi law does not require apportionment of fault, Miss. Code. Ann. §85-5-7(1), (7), to a plaintiff absent evidence sufficient to show, at least, negligence on the plaintiff’s part, Miss. Code. Ann. §11-7-15. Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 2008 U.S. App. LEXIS 19168 (5th Cir. Miss. 2008).

Summary judgment in favor of a landlord was proper because under Miss. Code Ann. §11-7-15, the tenant’s familiarity with the condition of the slick surface of the carport which caused her to fall and break her ankle constituted contributory negligence, and the landlord could not be contributorily negligent for a condition of which he was unaware. Dulin v. Sowell, 919 So. 2d 1010, 2005 Miss. App. LEXIS 464 (Miss. Ct. App. 2005).

In an action to recover for injuries sustained on a construction site, even if the plaintiff was contributorily negligent in attempting to walk across a dark basement, that would not bar recovery under the comparative negligence statute if the defendant also failed in its obligations to someone in the plaintiff’s status. Jackson v. W. G. Yates & Sons Constr. Co., 1998 Miss. App. LEXIS 827 (Miss. Ct. App. Oct. 13, 1998).

A minor child between the ages of 7 and 14 years is prima facie presumed not to be possessed of sufficient discretion to make him or her guilty of contributory negligence, and thus the defendant who raises the defense of contributory negligence has a greater burden to prove the defense than in a case where the plaintiff is not a minor child. Glorioso v. YMCA, 556 So. 2d 293, 1989 Miss. LEXIS 18 (Miss. 1989).

A loss of consortium action is derivative, and contributory negligence applies, because the action lies on account of injuries to the other spouse. Thus, an award to a wife for loss of consortium should have been reduced by the contributory negligence of her husband. Choctaw, Inc. v. Wichner, 521 So. 2d 878, 1988 Miss. LEXIS 120 (Miss. 1988).

Contributory negligence of plaintiffs’ decedent, if any, would only diminish the amount of damages to be awarded plaintiffs. Norris v. Board of Trustees, 300 So. 2d 913, 1974 Miss. LEXIS 1647 (Miss. 1974).

Where assumption of risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply. Braswell v. Economy Supply Co., 281 So. 2d 669, 1973 Miss. LEXIS 1498 (Miss. 1973).

Where two Mississippi motorists were killed in an automobile collision which occurred in Louisiana, their estates were being administered in Mississippi, and their administratrices had respectively filed in a Mississippi court an action and counterclaim for damages as a consequence of the deaths of the decedents, the issues of liability under both the declaration and counterclaim should have been submitted to the jury by appropriate instructions under the Mississippi comparative negligence statute, despite the fact that the law of Louisiana, where the fatal collision occurred, barred a recovery where contributory negligence is established. Mitchell v. Craft, 211 So. 2d 509, 1968 Miss. LEXIS 1266 (Miss. 1968).

Where the court properly instructed the jury in accord with the Mississippi statute of comparative negligence, it must be assumed that the jury considered the effect of any contributory negligence in reaching the amount of its verdict. Bill Hunter Truck Lines, Inc. v. Jernigan, 384 F.2d 361, 1967 U.S. App. LEXIS 4789 (5th Cir. Miss. 1967).

Code 1942, § 8215 should be construed in a practical manner, and it does not mean that a motorist forced to stop momentarily upon the paved portion of a highway because the vehicle in front of him stopped and oncoming traffic prevented him from passing is guilty of negligence in not immediately driving from the highway onto the shoulder. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

In view of this statute, contributory negligence does not absolutely bar recovery of damages. Arnold Services, Inc. v. Delta Motor Lines, Inc., 325 F.2d 860, 1963 U.S. App. LEXIS 3327 (5th Cir. Miss. 1963).

Where the negligence of the railroad and plaintiffs’ decedent were concurring causes, each being a proximate cause of the accident, the negligence of plaintiffs’ decedent did not bar recovery, but only served to diminish the damages of his next of kin. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

Although contributory negligence is a ground for reduction of damages, it will not bar recovery. Illinois C. R. Co. v. Farris, 259 F.2d 445, 1958 U.S. App. LEXIS 4753 (5th Cir. Miss. 1958).

That driver of pulpwood truck, in which plaintiff was riding, was violating Code 1942, § 8181, by having a portion of the truck on the left side of the highway at the time of colliding with a pickup truck which was coming out of a driveway, would under the comparative negligence statute only constitute contributory negligence which would cause damages to be reduced, and a mere violation of the law in the operation of a motor vehicle would not entitle the opposite party to a peremptory instruction. Winfield v. Magee, 232 Miss. 57, 98 So. 2d 130, 1957 Miss. LEXIS 443 (Miss. 1957).

It is well settled that a child between the ages of 7 and 14 years is prima facie presumed not to be possessed of sufficient discretion to make him guilty of contributory negligence in failing to exercise due care for his own safety. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

Even if the farm equipment mechanic had been guilty of contributory negligence, still if the owner had failed to warn the mechanic of the dangerous condition of the owner’s cotton picker, about which owner knew or should have known, prior to the mechanic’s beginning work thereon, and the mechanic sustained injury while working on the machine, a jury issue was presented in an action by the mechanic against the owner. Cole v. Tullos, 228 Miss. 815, 90 So. 2d 32, 1956 Miss. LEXIS 569 (Miss. 1956).

In an action for personal injuries where the plaintiff’s car ran into defendant’s truck parked on the highway the court did not err in refusing to give an instruction to the defendant that the plaintiff, as a matter of law, was guilty of contributory negligence, as the instruction was not based upon the contributory negligence statute. Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So. 2d 578, 1951 Miss. LEXIS 309 (Miss. 1951).

Master is liable to servant when servant is injured in carrying out negligent order of foreman when danger is not so imminent that no person of ordinary prudence would have encountered it, even under orders, and there is no assumption of risk by servant where master is negligent, and contributory negligence is not bar to a recovery, such negligence being only for proper consideration in mitigation of damages. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Contributory negligence is not a defense to action based on fraud. Reed v. Charping, 207 Miss. 1, 41 So. 2d 11, 1949 Miss. LEXIS 312 (Miss. 1949).

Municipality’s duty to keep the streets in a reasonably safe condition for use by persons exercising reasonable care and caution for their own safety does not imply that contributory negligence of an injured person would bar recovery, for such implication would be in violation of this section [Code 1942, § 1454]. Owens v. Booneville, 206 Miss. 345, 40 So. 2d 158, 1949 Miss. LEXIS 266 (Miss. 1949).

An action in this state by a passenger against a foreign corporation, operating a motor transportation line in this state, to recover for injury sustained in Louisiana, would not be enjoined on the ground that contributory negligence is a complete defense in Louisiana and only a pro tanto defense in this state, since the courts of this state will apply the substantive law of Louisiana, including that of contributory negligence, in the trial of the case in this state. Tri-State Transit Co. v. Mondy, 194 Miss. 714, 12 So. 2d 920, 1943 Miss. LEXIS 85 (Miss. 1943).

The fact that the negligence of the plaintiff in a negligence action against a municipality contributed to the accident would not wholly bar him from recovery under this section [Code 1942, § 1454]. Birdsong v. Clarksdale, 191 Miss. 532, 3 So. 2d 827, 1941 Miss. LEXIS 169 (Miss. 1941).

Under this statute [Code 1942, § 1454] contributory negligence is not an absolute defense. C. C. Moore Constr. Co. v. Hayes, 119 F.2d 742, 1941 U.S. App. LEXIS 3825 (5th Cir. Miss.), cert. denied, 314 U.S. 642, 62 S. Ct. 82, 86 L. Ed. 515, 1941 U.S. LEXIS 445 (U.S. 1941).

Under this statute [Code 1942, § 1454] contributory negligence is not a defense to suits by employees. Montgomery Ward & Co. v. Lindsey, 104 F.2d 882, 1939 U.S. App. LEXIS 4249 (5th Cir. Miss. 1939).

Contributory negligence will not bar recovery, irrespective of degree. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

Under this provision [Code 1942, § 1454] contributory negligence is not a total defense. Southern Kraft Corp. v. Parnell, 65 F.2d 785, 1933 U.S. App. LEXIS 3157 (5th Cir. Miss. 1933).

Damages on account of unsafe place to work are permissible notwithstanding contributory negligence. Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857, 1917 Miss. LEXIS 164 (Miss. 1917).

Circumstance under which a minor is not guilty of contributory negligence. Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143, 1917 Miss. LEXIS 199 (Miss. 1917).

Trial court properly granted a limited liability company (LLC) summary judgment in wrongful death beneficiaries’ action because the LLC could act only through a pilot since he was its sole member, and the beneficiaries were barred from recovering for the pilot’s negligence; if the pilot had survived the crash, he would have been unable to recover from the LLC for his own negligence, and the beneficiaries stood in the pilot’s shoes and also could not recover for his negligence. Howarth v. M&H Ventures, LLC, 237 So.3d 107, 2017 Miss. LEXIS 429 (Miss. 2017).

4. Pleading and proof.

One not pleading contributory negligence is not entitled to an instruction thereon, though the proof shows contributory negligence sufficiently for consideration by the jury. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Contributory negligence of the person injured or killed is an affirmative defense which must be pleaded and proved, and if a defendant wishes to have a jury instructed with reference thereto, he should request such an instruction. Jefferson v. Pinson, 219 Miss. 427, 69 So. 2d 234, 1954 Miss. LEXIS 350 (Miss. 1954).

Under Mississippi law a defendant may not have the advantage of this section [Code 1942, § 1454] unless he pleads contributory negligence and requests an instruction on comparative negligence and diminution of damages. Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

A defendant neither pleading nor requesting instruction as to contributory negligence cannot rely on contributory negligence as a defense on appeal. Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 1925 Miss. LEXIS 162 (Miss. 1925).

A defense of contributory negligence must be specially pleaded and the burden of proving same is on the defendant. Yazoo & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393, 1925 Miss. LEXIS 5 (Miss. 1925); Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

5. Effect of negligence of defendant.

Plaintiff may still recover from defendant whose negligence proximately caused or contributed to plaintiff’s injury even though plaintiff was himself negligent. Blackmon v. Payne, 510 So. 2d 483, 1987 Miss. LEXIS 2522 (Miss. 1987).

Although a plaintiff may be guilty of negligence he may still recover from a defendant who is guilty of negligence which proximately caused or contributed to plaintiff’s injury, but such recovery may not be had where plaintiff’s negligence is the sale proximate cause of the injury. Evans v. Journeay, 488 So. 2d 797, 1986 Miss. LEXIS 2463 (Miss. 1986).

A defendant in an automobile collision case would not be absolved from liability altogether, if both parties were negligent equally, but plaintiff’s damages would be reduced by 50 percent. First Nat'l Bank v. Mississippi State Highway Com., 227 So. 2d 118, 1969 Miss. LEXIS 1336 (Miss. 1969).

Gross negligence of plaintiff in jumping from train while it was running at rate of speed which he judged to be fifteen miles per hour instead of remaining on train until carried to next station is not bar to recovery of damages for injuries sustained, if negligence of defendant railroad, or its violation of duty owed to him in starting train before he had reasonable time to get off, was continuing as a contributing cause of his jumping off moving train and sustaining such injuries. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

A verdict should have been directed against the driver of an automobile, the windshield of which was covered with snow except for a small place which provided only vision straight ahead, who stopped before going onto a highway and then proceeded to run into a vehicle traveling the highway after the other driver had sounded his horn within 300 feet of the intersection upon seeing the stopped car. Trewolla v. Garrett, 200 Miss. 563, 27 So. 2d 887, 1946 Miss. LEXIS 323 (Miss. 1946).

This statute [Code 1942, § 1454] had no application to sustain recovery against a railroad for the death of a truck driver resulting from the collision of his truck with an unlighted railroad car standing on the railroad crossing where the negligence of the driver was the sole proximate cause of his death. Mississippi E. R. Co. v. Summers, 194 Miss. 179, 11 So. 2d 429, 1943 Miss. LEXIS 21 (Miss. 1943).

Conduct of plaintiff’s gin foreman in failing to extinguish grass fire adjacent to plaintiff’s premises, which had been started on railroad premises and negligently left without complete extinguishment by railroad employees, constituted contributory negligence which would not bar recovery by the owner of the gin premises for destruction of the gin in view of this section [Code 1942, § 1454]. Yazoo & M. V. R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 1940 Miss. LEXIS 56 (Miss. 1940).

Under this section [Code 1942, § 1454] contributory negligence does not bar the right to recover if negligence chargeable against the defendant also proximately contributed thereto. T. A. Pittman, Inc. v. La Fontaine, 68 F.2d 469, 1934 U.S. App. LEXIS 4883 (5th Cir. Miss. 1934).

Notwithstanding the statute requiring auto drivers in approaching a crossing to stop, a driver or person who fails to observe this law is not precluded from recovering damages where negligence of the R. Co. is the proximate cause of the damage. Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 1925 Miss. LEXIS 162 (Miss. 1925).

Negligence of the plaintiff in driving upon a railroad track which contributed to his injury will not bar his recovery where the negligence of the defendant railroad company was a proximate cause of the injury. Davis v. Elzey, 126 Miss. 789, 89 So. 666 (1921).

Contributory negligence is no bar where defendant contributed to the injury. Tallahala Lumber Co. v. Holliman, 125 Miss. 308, 87 So. 661, 1921 Miss. LEXIS 125 (Miss. 1921).

Where injury to employee was due solely to an obvious hazard incident to the employment, employer was not liable and there could be no recovery. Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15, 1920 Miss. LEXIS 125 (Miss. 1920).

However, where there is no negligence shown by the defendant and contributory negligence is the sole cause of the injury, there can be no recovery. Ragland v. Native Lumber Co., 117 Miss. 602, 78 So. 542, 1918 Miss. LEXIS 202 (Miss. 1918).

Fact that plaintiff was negligent in fighting a grass fire, set out wrongfully by the railroad company, does not exonerate the company from liability. Illinois C. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773, 1915 Miss. LEXIS 191 (Miss. 1915).

Where the killing occurred within the corporate limits of a city and the proximate cause was the speed of train exceeding six miles per hour, the defendant is responsible for at least part of the damages. Illinois C. R. Co. v. Handy, 108 Miss. 421, 66 So. 783, 1914 Miss. LEXIS 210 (Miss. 1914).

6. Extent of recovery.

A jury has the duty and prerogative to make a decision as to contributory negligence and to reduce the award of damages, if any, in accordance with any contributory negligence. City of Jackson v. Copeland, 490 So. 2d 834, 1986 Miss. LEXIS 2483 (Miss. 1986).

Plaintiff, who sustained permanent injuries in diving into extremely shallow water from a negligently maintained municipal pier, was guilty of contributory negligence in not first determining the depth of the water, and the jury should have diminished his damages in proportion of the amount that his negligence contributed to the total negligence. Dendy v. Pascagoula, 193 So. 2d 559, 1967 Miss. LEXIS 1548 (Miss. 1967).

Where the negligent acts of two persons precipitate an emergency followed by an accident, and one of the parties is injured as a direct result of the prior acts of negligence of both, the other party is liable in damages to the injured party in proportion to his acts of negligence which contributed to the accident under the same rule as if the injury were caused by his negligence without an intervening emergency. Peel v. Gulf Transport Co., 252 Miss. 797, 174 So. 2d 377, 1965 Miss. LEXIS 1148 (Miss. 1965).

In an action against a city on behalf of an eight-year-old child injured when he fell into a drainage ditch, even if the plaintiff could have been guilty of contributory negligence, this was not a bar to recovery, but could be considered by the jury in determining the amount of damages, which presumably the jury did in arriving at the amount of the verdict. Shows v. Hattiesburg, 231 Miss. 648, 97 So. 2d 366, 1957 Miss. LEXIS 549 (Miss. 1957).

Since under the defendant’s own admission he was guilty of negligence in proceeding into a through street without continuing to look for the hazard of plaintiff’s approaching automobile, plaintiff was entitled to a peremptory instruction, and even though plaintiff may have been guilty of contributory negligence there would be an issue for the jury and, after plaintiff had been found guilty of contributory negligence, it would only diminish the amount of damages to be awarded to him. Wells v. Bennett, 229 Miss. 135, 90 So. 2d 199, 1956 Miss. LEXIS 594 (Miss. 1956).

In an action for injury sustained when a plaintiff’s coal truck struck defendant’s pick-up truck which was making a left turn in front of plaintiff’s vehicle to enter an intersecting county road, even if plaintiff was contributorily negligent in driving at an excessive speed while visibility was poor, and failing to blow his horn, and in failing to slow down as he approached the intersection, under this section [Code 1942, § 1454] he was not barred from recovery, although the amount of damages which he might otherwise have been entitled to recover would be diminished in proportion to the amount of negligence, if any, attributable to him. Cobb v. Williams, 228 Miss. 807, 90 So. 2d 17, 1956 Miss. LEXIS 568 (Miss. 1956).

Plaintiff’s negligence can be urged in mitigation of damages but not as bar to recovery, unless constituting sole, proximate cause. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

Even though a mechanic’s helper, who died as result of a can of gasoline used in priming an engine being thrown on him after the gasoline therein had become ignited when the engine backfired, was contributorily negligent in choosing the particular can and in standing in a dangerous position, the jury could properly reduce the damages, if it should find that the employer was liable in negligently failing to furnish a safe priming can. Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598, 1945 U.S. App. LEXIS 2067 (5th Cir. Miss. 1945).

City’s negligence in construction and maintenance of streets is to be determined from its own conduct, without regard to whether the injured person was using reasonable care, and its liability becomes fixed when such negligence becomes the proximate cause of the injury; the negligence of the injured person becomes a relevant factor under this section [Code 1942, § 1454] as to the extent of such liability. City of Meridian v. King, 194 Miss. 162, 11 So. 2d 205, 11 So. 2d 830, 1942 Miss. LEXIS 168 (Miss. 1942).

If negligence of motorist in failing to have his automobile equipped with rear red light contributes to rear end collision, motorist is liable under concurrent negligence statute for his proportion of damages sustained by motorist who ran into automobile. Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732, 1935 Miss. LEXIS 162 (Miss. 1935).

In actions for personal injuries, or for death resulting therefrom, contributory negligence is not a bar to recovery, but the damages are diminished in proportion to the amount of negligence attributable to the person injured or killed. Louisville & N. R. Co. v. Wickton, 55 F.2d 642, 1932 U.S. App. LEXIS 3779 (5th Cir. Miss. 1932).

Where a city maintains a zoo as a public park with wild and dangerous animals therein, it is responsible for damages caused by such animals, due to the negligence of its officers and agents, to persons visiting the park; but damages for the injury should be reduced on account of contributory negligence of the party injured. Byrnes v. Jackson, 140 Miss. 656, 105 So. 861, 1925 Miss. LEXIS 302 (Miss. 1925).

Contributory negligence of a servant who is injured goes to diminish his damages. Hardy v. Tuner-Farber-Love Co., 136 Miss. 355, 101 So. 489, 1924 Miss. LEXIS 142 (Miss. 1924).

Contributory negligence is no longer a defense for personal injuries, but goes only to the amount of damages. Mississippi C. R. Co. v. Lott, 118 Miss. 816, 80 So. 277, 1918 Miss. LEXIS 136 (Miss. 1918), cert. denied, 249 U.S. 616, 39 S. Ct. 391, 63 L. Ed. 803, 1919 U.S. LEXIS 2042 (U.S. 1919); Gulf & S. I. R. Co. v. Boone, 120 Miss. 632, 82 So. 335, 1919 Miss. LEXIS 116 (Miss. 1919), cert. denied, 251 U.S. 561, 40 S. Ct. 220, 64 L. Ed. 415, 1920 U.S. LEXIS 1680 (U.S. 1920), writ of error dismissed, 252 U.S. 567, 40 S. Ct. 343, 64 L. Ed. 719, 1920 U.S. LEXIS 1092 (U.S. 1920).

Under this statute [Code 1942, § 1454] contributory negligence does not bar a recovery but will cause a reduction of damages for the injury. Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824, 1913 Miss. LEXIS 241 (Miss. 1913); Tombigbee Mill & Lumber Co. v. Hollingsworth, 162 F.2d 763, 1947 U.S. App. LEXIS 2188 (5th Cir. Miss.), cert. denied, 332 U.S. 824, 68 S. Ct. 165, 92 L. Ed. 399, 1947 U.S. LEXIS 1630 (U.S. 1947).

7. Evidence.

In a product liability suit, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence under Miss. Code Ann. §11-7-15. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

Where an employee was mounting a moving locomotive when a foot slipped due to mud, causing employee to fall and sustain serious leg injuries, the railroad was liable to the employee for damages; the trial court did not err by refusing to instruct the jury on comparative negligence under Miss. Code Ann. §11-7-15, and the jury’s rejection of the claim was not against the weight of the evidence, and while the employee testified that employee did not check his boots prior to mounting the locomotive, the employee also testified on acting in compliance with the railroad’s safety rules. Canadian Nat'l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084, 2007 Miss. LEXIS 208 (Miss. 2007).

Court’s finding of contributory negligence on the part of plaintiff was proper where defendant bus driver testified that he came to a complete stop at the stop sign, he looked both ways for oncoming traffic before entering the intersection, both parties had a clear unobstructed view of the intersection as they approached from their respective directions, and defendant’s bus was hit by plaintiff’s truck, thus indicating a lack of evasive action on the part of plaintiff. Thompson ex rel. Thompson v. Lee County Sch. Dist., 925 So. 2d 57, 2006 Miss. LEXIS 50 (Miss. 2006).

The jury may not reduce plaintiff’s damages where the evidence fails to prove contributory negligence. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Evidence warranted jury in automobile collision case in finding negligence and contributory negligence. Hawkins v. Hillman, 245 Miss. 385, 149 So. 2d 17, 1963 Miss. LEXIS 526 (Miss. 1963).

In an action for injuries sustained by plaintiff who was struck by an automobile while standing on the shoulder of a highway waiting for a ride, a finding that the plaintiff had stepped into the highway in front of an automobile was not supported by evidence and therefore did not warrant the jury in employing the comparative negligence doctrine, and a new trial would be granted on the issue of damages alone when all the facts should be presented to the jury on the question of negligence and the jury will have the right to apportion the damages under the comparative negligence statute. Vaughan v. Bollis, 221 Miss. 589, 73 So. 2d 160, 1954 Miss. LEXIS 567 (Miss. 1954).

Evidence that excessive speed of train directly and proximately contributed to pedestrian’s death, in that pedestrian was unable to get out of the way, supported verdict allowing recovery, notwithstanding evidence of pedestrian’s contributory negligence. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

In trial of damage issue after judgment was reversed as to amount of damages and was remanded for trial on that issue only, evidence as to negligence of defendant and contributory negligence of plaintiff held admissible, since such negligence entered into fixation of damages under statute. Mississippi C. R. Co. v. Smith, 176 Miss. 306, 168 So. 604, 1936 Miss. LEXIS 129 (Miss. 1936).

8. Questions for jury.

Extent to which negligence defendant may escape liability by arguing that condition causing damage to plaintiff was open and obvious is question for jury. Bell v. Bay St. Louis, 467 So. 2d 657, 1985 Miss. LEXIS 2020 (Miss. 1985).

In accordance with the provisions of this section [Code 1942, § 1454], contributory negligence on the part of a pedestrian struck and killed by an automobile is not a bar to a recovery if there is negligence proved on the part of the defendant motorist, but all questions of contributory negligence or comparative negligence should be submitted to the jury for the jury’s determination where there is such a question. Hogan v. Cunningham, 252 Miss. 216, 172 So. 2d 408, 1965 Miss. LEXIS 1092 (Miss. 1965).

The right under this section [Code 1942, § 1454] to apportion damages is for the jury, in the light of the circumstances and reasonable bounds. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

In bowler’s action to recover for damages for injuries sustained in fall allegedly due to the negligence of the bowling establishment proprietor, questions as to assumption of risks and contributory negligence should have gone to jury under proper instructions. Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So. 2d 558, 1962 Miss. LEXIS 543 (Miss. 1962).

Where a judgment in an action arising out of an intersectional motor vehicle collision was reversed and remanded for retrial on the question of the amount of damages alone, upon the retrial all the facts should be presented to the jury on the question of the negligence of all parties, and a jury would have the right to apportion damages under the comparative negligence statute. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

On retrial of personal injury action on issue of damages only, the evidence should not be limited to the question of damages, but all of the facts should be presented for the jury’s consideration as to the negligence of all parties, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960).

Although motorist’s failure to stop before attempting to cross railroad tracks was negligence contributing to the collision with a railroad switch engine, trial court properly refused railroad’s requested peremptory instruction where the evidence presented questions for the jury as to whether the proximate cause of the collision was failure of the railroad to ring the bell on its engine, or the negligence of the railroad’s engineer in failing to stop the engine when the engineer saw that motorist’s automobile was not going to stop. New Orleans & N. R. Co. v. Ready, 238 Miss. 199, 118 So. 2d 185, 1960 Miss. LEXIS 396 (Miss. 1960).

In an action against a railroad and its engineer for damages to a tractor trailer caused by a crossing collision, where the evidence established that the railroad and its engineer was liable as a matter of law, but also raised jury questions as to the contributory negligence, if any, of the truck driver, whether under the comparative negligence statute plaintiff’s damages sustained should have been diminished, whether the negligence of the engineer was the sole, proximate cause of the collision, and the applicability of the last clear chance doctrine, the case was reversed and remanded for submission to a jury on issues of damages alone. New Orleans & N. R. Co. v. Dixie Highway Express, Inc., 230 Miss. 92, 92 So. 2d 455, 1957 Miss. LEXIS 348 (Miss. 1957).

In a death action arising out of a collision between decedent’s truck and defendant’s train at a railroad crossing, the conflicting testimony as to the speed of the train and as to the giving of statutory signals, when considered in connection with the alleged obstruction of decedent’s view by a packing shed, depot building, and two box cars along the west side of the packing shed, all tending to show that the decedent could not have seen the train by exercising reasonable care until he was in the act of crossing the track, presented an issue for the jury. Illinois C. R. Co. v. Sanders, 229 Miss. 139, 90 So. 2d 366, 1956 Miss. LEXIS 595 (Miss. 1956), overruled, Sheffield v. Sheffield, 405 So. 2d 1314, 1981 Miss. LEXIS 2053 (Miss. 1981).

It is for the jury to decide whether it will diminish the damages in proportion to the amount of negligence attributable to the plaintiff when under all the testimony and circumstances thereby shown a part of the negligence contributing to plaintiff’s injuries was attributable to his own negligence, even if no instruction to this effect is requested by either party. Mutual Life Ins. Co. v. Rather, 221 Miss. 527, 73 So. 2d 163, 1954 Miss. LEXIS 559 (Miss. 1954).

In an action by a bicyclist against a cab company for injuries suffered when he jumped off the bicycle to avoid being crushed by the cab against a van type truck ahead, the question of excessive speed of the cab and the proximate cause of the negligence was for the jury. Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So. 2d 356, 1951 Miss. LEXIS 412 (Miss. 1951).

Where the place of work was not obviously safe, it was for the jury to determine whether the method was safe which an employee chose in the performance of an assigned task. Tombigbee Mill & Lumber Co. v. Hollingsworth, 162 F.2d 763, 1947 U.S. App. LEXIS 2188 (5th Cir. Miss.), cert. denied, 332 U.S. 824, 68 S. Ct. 165, 92 L. Ed. 399, 1947 U.S. LEXIS 1630 (U.S. 1947).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high powered wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power, or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

In an action by an employee against his employer for injuries sustained by reason of an explosion resulting from the use of gasoline, mistakenly thought to be kerosene, in starting a fire for the purpose of heating grease guns and warming the employees in connection with construction of a highway, questions with respect to the employer’s duty to furnish a reasonably safe place for its employees to work, reasonably safe instrumentalities to work with, and a reasonably safe method and rules under which to work, were for the jury, the comparative negligence statute answering to some extent the employer’s argument that it was entitled to a directed verdict. Curry & Turner Const. Co. v. Bryan, 184 Miss. 44, 185 So. 256, 1939 Miss. LEXIS 18 (Miss. 1939).

In an action against a railroad for injuries sustained in a railroad crossing collision by an automobile owner while riding as a passenger in his automobile driven by another with his permission and in his interests, questions of the negligence of the railroad in failing to give statutory signals at crossings and the negligence of the driver of the automobile, imputable to the owner, were for the jury, since under this section [Code 1942, § 1454] it is the duty of the jury to compare and allocate the negligence of the parties under instruction of the court. Flynn v. Kurn, 183 Miss. 413, 184 So. 160, 1938 Miss. LEXIS 256 (Miss. 1938).

Statute imposing duty of diminishing damages because of contributory negligence should be observed by juries. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Whether motorist whose automobile struck a gondolo car, spotted by railroad employees so that it extended partly across public highway, was contributorily negligent held for jury. Magers v. Okolona, H. & C. C. R. Co., 174 Miss. 860, 165 So. 416, 1936 Miss. LEXIS 201 (Miss. 1936).

Liability of railroad for death of motorist in crossing collision and question of damages in view of deceased’s contributory negligence were for the jury. Louisville & N. R. Co. v. Wickton, 55 F.2d 642, 1932 U.S. App. LEXIS 3779 (5th Cir. Miss. 1932).

Negligence of town in respect to injury to pedestrian stumbling on stake on sidewalk held for jury. Gould v. Newton, 157 Miss. 111, 126 So. 826, 1930 Miss. LEXIS 239 (Miss. 1930).

9. Instructions.

Finding against the operator in an action for negligence brought by the driver and passenger was proper because a jury instruction improperly stated that even if the jury found that the operator’s speed was excessive and that the excessive speed was the proximate cause of the accident, that the operator could avoid culpability due to the intervening negligence of another person. Denham v. Holmes, 60 So.3d 773, 2011 Miss. LEXIS 192 (Miss. 2011).

Denial of a driver and passenger’s motion for a new trial in their negligence action after the jury found in favor of the other driver was improper because the driver and passenger were denied their right to a fair trial. In part, Mississippi was a pure comparative-negligence state and because a jury instruction implied contributory negligence, it was a misstatement of the law and was potentially misleading to the jury. Denham v. Holmes, 60 So.3d 803, 2010 Miss. App. LEXIS 148 (Miss. Ct. App. 2010), aff'd on other grounds, 60 So.3d 773, 2011 Miss. LEXIS 192 (Miss. 2011).

In a suicide wrongful death case against a doctor, plaintiff waived her claim that the court should have given the jury an apportionment instruction due to the fact that the doctor put forth evidence that the decedent’s husband and other family members caused the decedent to commit suicide because plaintiff stated in a discovery response that no heir had exacerbated the decedent’s mental illness, and plaintiff provided no other theory as to how an heir could be held partially responsible for the suicide. Young v. Guild, 2008 Miss. LEXIS 548 (Miss. Oct. 30, 2008), sub. op., op. withdrawn, 7 So.3d 251, 2009 Miss. LEXIS 193 (Miss. 2009).

When a comparative negligence instruction is given, the jury should be instructed as to an alternative format for the rendering of a comparative negligence verdict which provides for an apportionment of fault or damages if both parties are found to be negligent. Burton v. Barnett, 615 So. 2d 580, 1993 Miss. LEXIS 90 (Miss. 1993).

When there is evidence to support a comparative negligence instruction, it is not error to give the instruction even though each party may contend that the other was entirely at fault. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

Instruction that would allow jury to find that plaintiff was independent intervening cause of accident, and therefore sole proximate cause, of accident merely because she was involved in accident, no matter how negligent defendant might have been, was error. Blackmon v. Payne, 510 So. 2d 483, 1987 Miss. LEXIS 2522 (Miss. 1987).

The giving of instruction on contributory negligence without stating the facts necessary to constitute contributory negligence is, unless cured by other instructions given, reversible error. City of Jackson v. Copeland, 490 So. 2d 834, 1986 Miss. LEXIS 2483 (Miss. 1986).

A jury instruction in an automobile collision case for the defendant to the effect that if the jury finds, after considering all of the evidence, that the evidence is evenly balanced for the defendant and for a plaintiff, they must find for the defendant, was erroneously granted. First Nat'l Bank v. Mississippi State Highway Com., 227 So. 2d 118, 1969 Miss. LEXIS 1336 (Miss. 1969).

An instruction is erroneous which would cut off any recovery by the plaintiff as a result of contributory negligence on his part. Bozeman v. Tucker, 203 So. 2d 795, 1967 Miss. LEXIS 1393 (Miss. 1967).

Instructions which fail to allow the jury the right to apply the comparative negligence statute are defective and erroneous. Bozeman v. Tucker, 203 So. 2d 795, 1967 Miss. LEXIS 1393 (Miss. 1967).

In action brought by house mover against electric company for injuries he received from coming into contact with live power line, an instruction for defendant that if jury believed plaintiff knew and appreciated dangers existing in connection with overhead power line and voluntarily placed himself in a position to come in contract with it he had assumed the risks incident thereto, including any negligence of defendant, defendant would not be liable for plaintiff’s injuries, was erroneously granted; for it prevented application of comparative negligence doctrine by jury and eliminated distinction between assumption of risk and contributory negligence, where there was evidence in record to the effect that an employee of defendant told plaintiff the wire was harmless and plaintiff should take hold of it and lift it up. Crouch v. Mississippi Power & Light Co., 193 So. 2d 144, 1966 Miss. LEXIS 1283, 1967 Miss. LEXIS 1546 (Miss. 1966).

To instruct the jury for the plaintiff in an automobile collision action that the jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

An instruction for the defendant in a wrongful death action that if the jury believes from the evidence that the injury and subsequent death of the plaintiff was proximately caused by the negligence, if any, of the plaintiff, then the jury should return a verdict for the defendant, is an erroneous instruction and in conflict with the provisions of this section [Code 1942, § 1454]. Hogan v. Cunningham, 252 Miss. 216, 172 So. 2d 408, 1965 Miss. LEXIS 1092 (Miss. 1965).

Although the defendant in a wrongful death action did not ask for or receive an instruction on contributory negligence, the jury had the right to apply the comparative negligence statute without an instruction to that effect. Winstead v. Hall, 251 Miss. 800, 171 So. 2d 354, 1965 Miss. LEXIS 904 (Miss. 1965).

Where facts constituting contributory negligence are pleaded and proved, a request to instruct on contributory negligence is not essential to enable the jury to consider it in assessing damages. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

To instruct jury that contributory negligence will defeat recovery is erroneous under this provision. Arnold Services, Inc. v. Delta Motor Lines, Inc., 325 F.2d 860, 1963 U.S. App. LEXIS 3327 (5th Cir. Miss. 1963).

Instruction in action for alleged negligent installation of machine that jury should find for defendant if they found that the machine was not being handled properly by plaintiff, held erroneous. Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So. 2d 847, 1962 Miss. LEXIS 418 (Miss. 1962).

In an automobile collision case, where the testimony as to the negligence of the respective parties, the drivers of the vehicles, was sharply conflicting, the court was warranted in giving an instruction on contributory negligence. Ferguson v. Denton, 239 Miss. 591, 124 So. 2d 279, 1960 Miss. LEXIS 327 (Miss. 1960).

The trial court was warranted in giving to the defendants a comparative negligence instruction in an action arising out of an intersectional motor vehicle collision. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

An instruction in an action by one who slipped on a wet floor in a store entrance that plaintiff assumed such risks as were obvious to a person of ordinary intelligence, and that if plaintiff saw, knew and appreciated the danger, or should have done so by the exercise of reasonable care, the finding should be for the defendant is erroneous as eliminating the distinction between assumption of risk and contributory negligence and as denying the jury’s right to weigh the respective negligence, if any, of the parties. Wallace v. J. C. Penney Co., 236 Miss. 367, 109 So. 2d 876, 1959 Miss. LEXIS 328 (Miss. 1959).

In an action against an automobile driver for injuries sustained by a bicyclist, instructions to the jury that the plaintiff could not recover if he did not keep his bicycle under control, failed to keep a proper lookout for others on the highway and did not use due care to avoid placing himself in a place of danger so as to create emergency, failed to take into account the provisions of comparative negligence statutes which provide that the plaintiff’s contributory negligence shall not bar a recovery, if the proof showed that the defendant was negligent and that the defendant’s negligence was the proximate contributing cause to the plaintiff’s injuries. Rivers v. Turner, 223 Miss. 673, 78 So. 2d 903, 1955 Miss. LEXIS 422 (Miss. 1955).

In an action for damages for personal injury alleged to have been sustained as the result of stepping into a hole or depression in a public walkway in which the defendant had laid its gas main, refusal of plaintiff’s instruction that contributory negligence of the plaintiff shall not bar recovery was error, even though the instruction did not contain a direction for diminishing damages in accordance with this section [Code 1942, § 1454]. Mason v. United Gas Corp., 222 Miss. 311, 75 So. 2d 736, 1954 Miss. LEXIS 647 (Miss. 1954).

In an action for damages sustained in an automobile collision an instruction to the jury to the effect that recovery could not be had if both parties were equally negligent and their negligence contributed equally to the proximate cause of the collision, was in violation of this section [Code 1942, § 1454]. Carruth v. Griffis, 220 Miss. 541, 71 So. 2d 478, 1954 Miss. LEXIS 469 (Miss. 1954).

If the defendant in a negligence suit had desired to avail himself of the statutory right to have the damages diminished in proportion to negligence, if any, of the plaintiff, it was his duty to request the court to so instruct the jury. Mason v. United Gas Corp., 222 Miss. 311, 75 So. 2d 736, 1954 Miss. LEXIS 647 (Miss. 1954); Alabama & V. R. Co. v. McGee, 117 Miss. 370, 78 So. 296, 1918 Miss. LEXIS 187 (Miss. 1918); Ouille v. Saliba, 246 Miss. 365, 149 So. 2d 468, 1963 Miss. LEXIS 450 (Miss. 1963).

An instruction to the jury as to age, intelligence, knowledge, experience and discretion of a child should be confined to the time of accident, not to the time of the trial. Johnson v. Howell, 213 Miss. 195, 56 So. 2d 491, 1952 Miss. LEXIS 349 (Miss. 1952).

An instruction to the jury that the plaintiff must prove the charge of negligence by a preponderance of credible evidence and that the jury find the evidence touching the charge of negligence against the defendant to be evenly balanced, after fairly considering it, it was their duty to return a verdict for the defendant, was conceptually correct where it was limited by another instruction which limited the above to element of negligence. Evans v. Jackson City Lines, Inc., 212 Miss. 895, 56 So. 2d 80, 1952 Miss. LEXIS 324 (Miss. 1952).

Instructions which are fundamentally in violation of this statute [Code 1942, § 1454] by absolving defendant from liability for negligence if plaintiff is also negligent are substantially erroneous and will not be cured by other instructions in record. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

Instruction that if jury believed from evidence that plaintiff and defendant were equally negligent, jury should find for defendant, is erroneous, for if both were negligent equally, defendant would not be absolved from liability altogether, but plaintiff’s damages would be reduced by fifty per cent. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In action for damages to automobile arising out of ramming by truck, instruction that even if jury believed from preponderance of evidence that defendant was guilty of negligence, if jury also believed that plaintiff was negligent, jury should find for defendant or diminish plaintiff’s actual damages in such proportion as plaintiff’s negligence may have contributed to accident is erroneous and should not have been given. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In employee’s suit against employer for personal injuries where evidence disclosed that injury resulted from negligence of fellow servants brought about by the direct order of the foreman, instruction eliminating entirely the question of whether or not the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and tending to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action, was error. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Speed of train when plaintiff, who had boarded train to assist passenger with luggage, alighted, has bearing in action for injuries sustained in getting off train only on question of whether railroad company is entitled to have jury instructed, as a matter of law, that plaintiff was guilty of negligence mitigating damages. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

In action for injuries resulting from automobile collision at intersection of cross road with through traffic lane, failure to give a comparative negligence instruction on behalf of plaintiff is not erroneous when instruction was not requested and plaintiff predicated liability on finding that defendant was negligent and defendant’s negligence was the sole, proximate cause of plaintiff’s injuries. Davidian v. Wendell, 37 So. 2d 570 (Miss. 1948).

In action for death of child caused by negligent act of defendant, an instruction authorizing jury to take into consideration “any negligence on the part of the deceased child” is properly refused as the instruction fails to set forth elements of such negligence, if any, and its proximate contribution to injuries. Stevenson v. Robinson, 37 So. 2d 568 (Miss. 1948).

Under Mississippi law a defendant may not have the advantage of this section [Code 1942, § 1454] unless he pleads contributory negligence and requests an instruction on comparative negligence and diminution of damages. Railway Exp. Agency v. Mallory, 168 F.2d 426, 1948 U.S. App. LEXIS 2064 (5th Cir. Miss.), cert. denied, 335 U.S. 824, 69 S. Ct. 48, 93 L. Ed. 378, 1948 U.S. LEXIS 1803 (U.S. 1948).

The trial court could not voluntarily instruct the jury to apportion damages where the defendant did not request that the jury consider his rights in the matter of comparative negligence. Robinson v. Colotta, 199 Miss. 800, 26 So. 2d 66, 1946 Miss. LEXIS 248 (Miss. 1946).

Where contributory negligence on the part of plaintiff which contributed to the accident is shown, and the defendant has properly invoked the comparative negligence statute, it is reversible error for the trial court to instruct the jury, in effect, that they may disregard the statute. Moore v. Abdalla, 197 Miss. 125, 19 So. 2d 502, 1944 Miss. LEXIS 281 (Miss. 1944).

Instructions for defendant in personal injury action that if the jury should find that both plaintiff and defendant were guilty of negligence, proximately causing the accident or proximately contributing to the cause of such accident, and the jury should return any verdict for the plaintiff, then under their oath the jury must lessen any damages, if any, awarded to the plaintiff to the amount of negligence attributable to the plaintiff, was not reversible error, although the court might better have followed the unambiguous language of this section [Code 1942, § 1454]. Clary v. Breyer, 194 Miss. 612, 13 So. 2d 633, 1943 Miss. LEXIS 106 (Miss. 1943).

In action against truck owner for death of truck driver caused by flat tire on truck, instruction that driver’s contributory negligence in driving truck after one tire had been repaired after blowout would not bar recovery, held not erroneous. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

Plaintiff’s instructions authorizing recovery despite contributory negligence and assessment of full damages in event of finding for plaintiff held violative of statutory requirement for proportionate diminution of damages. Graves v. Johnson, 179 Miss. 465, 176 So. 256, 1937 Miss. LEXIS 49 (Miss. 1937).

In view of this section [Code 1942, § 1454], automobile owner held not entitled to more than instruction directing jury to consider passenger’s contributory negligence. Watson v. Holiman, 169 Miss. 585, 153 So. 669, 1934 Miss. LEXIS 68 (Miss. 1934).

Instruction permitting jury to consider plaintiff’s contributory negligence, if any, in diminution of damages, where not pleaded, if error, held harmless where jury found plaintiff’s negligence was sole proximate cause of injury. White v. Weitz, 169 Miss. 102, 152 So. 484, 1934 Miss. LEXIS 9 (Miss. 1934).

That each motorist claimed collision was caused by the other’s negligence did not render instruction based on comparative negligence statute erroneous. Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356, 1929 Miss. LEXIS 288 (Miss. 1929).

This statute [Code 1942, § 1454] makes it proper to instruct the jury that they should apportion the damages. Hudson v. Louisville & N. R. Co., 30 F.2d 391, 1929 U.S. App. LEXIS 2415 (5th Cir. Miss. 1929).

Instruction based on comparative negligence statute held not erroneous because not instructing jury to diminish damages in proportion to negligence of plaintiff. Morrell Packing Co. v. Branning, 155 Miss. 376, 124 So. 356, 1929 Miss. LEXIS 288 (Miss. 1929); White v. Chicago Southern Transp. Co., 226 Miss. 294, 84 So. 2d 161, 1955 Miss. LEXIS 633 (Miss. 1955).

Instruction that contributory negligence of person in collision between automobile and train would not bar recovery held not erroneous, when considered with instructions as a whole. Gulf & S. I. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345, 1928 Miss. LEXIS 182 (Miss. 1928).

By reason of this provision, Hemingway’s Code 1917, § 502, it is proper to refuse a charge that a defendant is not liable if the plaintiff is guilty of contributory negligence. Reynolds-West Lumber Co. v. Kellum, 19 F.2d 72, 1927 U.S. App. LEXIS 2188 (5th Cir. Miss. 1927).

Unless the speeding of the automobile was the sole cause of the injury complained of, an instruction that if the speed exceeded ten miles per hour approaching defective bridge the plaintiff could not be allowed to recover, is erroneous. Dent v. Mendenhall, 139 Miss. 271, 104 So. 82, 1925 Miss. LEXIS 137 (Miss. 1925).

An instance of erroneous instruction as to diminution of damages. Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187, 1923 Miss. LEXIS 97 (Miss. 1923).

An instance of an erroneous instruction with reference to comparative negligence contributing to the injury. Yazoo & M. V. R. Co. v. Mullins, 125 Miss. 242, 87 So. 490, 1921 Miss. LEXIS 112 (Miss. 1921).

A jury may be instructed that mere contributory negligence does not bar a recovery of damages for death. Illinois C. R. Co. v. Archer, 113 Miss. 158, 74 So. 135, 1916 Miss. LEXIS 37 (Miss. 1916).

A party to the suit desiring that the jury be instructed as to the effect of contributory negligence must ask such instruction. Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459, 1914 Miss. LEXIS 279 (Miss. 1914).

10. — Peremptory instruction.

Where a car collision was caused when the driver of a commercial vehicle swerved to avoid hitting an unknown driver, reasonable minds could have differed as to liability, and the jury’s verdict for defendant driver and his employer was supported by substantial evidence; the trial court erred by granting the plaintiff a new trial and ordering that the new jury be peremptorily instructed that defendant driver was negligent as a matter of law. White v. Stewman, 932 So. 2d 27, 2006 Miss. LEXIS 315 (Miss. 2006).

The trial court properly denied a peremptory instruction to defendant power company in an action by plaintiff injured when his television antenna, which he was negligently handling, came in contact with a high voltage line, where there was a question of fact as to whether defendant should have isolated, insulated, or guarded its lines and as to whether it should have issued a warning. Evans v. State Farm Fire & Casualty Co., 336 So. 2d 753, 1976 Miss. LEXIS 1524 (Miss. 1976).

A peremptory instruction should have been granted in an action against an employer by an employee who was injured when a steel rim sprung out and struck him as he was changing a truck tire, the evidence showing that he was familiar with the proper method and that the employer had a right to so assume. Masonite Corp. v. Stevens, 201 Miss. 876, 30 So. 2d 77, 1947 Miss. LEXIS 459 (Miss. 1947).

Even if a fire, started by railroad employees to burn the grass on railroad property and left without complete extinguishment, had already reached the plaintiff’s premises when plaintiff’s foreman put out some of the fire but not all of it, plaintiff would still be entitled to at least nominal damages for destruction of the gin on her premises, which in itself was sufficient to avoid a peremptory instruction requested by the railroad in an action against it for damages. Yazoo & M. V. R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 1940 Miss. LEXIS 56 (Miss. 1940).

Under this statute [Code 1942, § 1454] contributory negligence does not bar a recovery, and therefore it is not error to deny a peremptory instruction for the defendant. Perez v. Fayard, 64 F.2d 667, 1933 U.S. App. LEXIS 4188 (5th Cir. Miss. 1933).

An instance where peremptory instruction should have been given for the admitted or proven negligence of defendant causing injury. Illinois C. R. Co. v. Archer, 113 Miss. 158, 74 So. 135, 1916 Miss. LEXIS 37 (Miss. 1916).

11. Damages.

In an action brought by a city against an architect-engineer and contractors for damages resulting from the failure of a protective levy surrounding the construction site of a waste water treatment plant in which both defendants counterclaimed and crossclaimed, the record supported an apportionment of liability in favor of the city for installation of a second slurry wall to be 50 percent against the architect-engineer and 50 percent against the contractor pursuant to Miss Code §11-7-15. Moreover, the architect-engineer was required to bear the sole responsibility to the city for damages resulting from the levy failures as well as repairs to the access bridge. Columbus v. Clark-Dietz & Associates-Engineers, Inc., 550 F. Supp. 610, 1982 U.S. Dist. LEXIS 15668 (N.D. Miss. 1982).

Under the Mississippi comparative negligence statute, the negligence of a father who took his 5-year-old son across a highway so that the son might buy milk and failed to take steps so that the son might return safely, when possible negligence on the part of drivers on the highway was or should have been foreseeable by the father, was twice as great as the negligence of a truckdriver who failed to see the child recrossing the highway, so that the whole damages sustained by the father must be reduced by two thirds, limiting the recovery against the defendant employer of the truckdriver to one third of the sum. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

Where on a new trial, granted because of an erroneous instruction on contributory negligence, damages alone should be submitted to the jury, but the defendant may assert, in diminution of damages, any negligence on the part of plaintiff’s decedent which can be shown to have contributed to the injuries sustained by the decedent. Glover v. Daniels, 310 F. Supp. 750, 1970 U.S. Dist. LEXIS 12400 (N.D. Miss. 1970).

Damages for personal injury will not be held grossly inadequate where jury, in determining amount, may have found contributory negligence. Ramsey v. Price, 249 Miss. 192, 161 So. 2d 778, 1964 Miss. LEXIS 385 (Miss. 1964).

Where a judgment in an action arising out of an intersectional motor vehicle collision was reversed and remanded for retrial on the question of the amount of damages alone, upon the retrial all the facts should be presented to the jury on the question of the negligence of all parties, and a jury would have the right to apportion damages under the comparative negligence statute. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

On retrial of personal injury action on issue of damages alone, the evidence should not be limited to question of damages, but all the facts bearing upon the issue of negligence of all parties should be presented, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960).

In rendering a verdict for cross-complainant, the respective amounts found for complainant and cross-complainant need not be indicated. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

In a proceeding on libel for collision, damages would be apportioned equally in a case where both parties had been at fault to the extent of twenty per cent and eighty per cent. In re Adams, 125 F. Supp. 110, 1954 U.S. Dist. LEXIS 2632 (D.N.Y. 1954), aff'd, 237 F.2d 884, 1956 U.S. App. LEXIS 4743 (2d Cir. N.Y. 1956).

Although no instruction was given concerning comparative negligence statutes, a jury was authorized to apply the statutes in determining award for injuries sustained in automobile collision. Gilliam v. Sykes, 216 Miss. 54, 61 So. 2d 672, 1952 Miss. LEXIS 613 (Miss. 1952).

Where neither the plaintiff nor the defendant in an automobile collision case requested instructions based upon the comparative negligence statute, the jury was not required to apportion and compare the damages on account of the negligence of the parties; the court could not voluntarily instruct the jury on the subject; and the reviewing court could not consider the comparative negligence of the parties in determining whether the verdict was excessive. Avent v. Tucker, 188 Miss. 207, 194 So. 596, 1940 Miss. LEXIS 28 (Miss. 1940).

Contributory negligence of one of statutory beneficiaries held not imputed to other beneficiaries, so as to reduce damages recoverable from tort-feasor for death. Nosser v. Nosser, 161 Miss. 636, 137 So. 491, 1931 Miss. LEXIS 286 (Miss. 1931).

Minor under 14 years employed in violation of law is not chargeable with contributory negligence requiring reduction of damages. Hartwell Handle Co. v. Jack, 149 Miss. 465, 115 So. 586, 1928 Miss. LEXIS 51 (Miss. 1928).

A jury must diminish damages in proportion to contributory negligence of the injured person, but a motion for a new trial in the court below is necessary to a review of the adequacy of damages in the supreme court. Tendall v. Davis, 129 Miss. 30, 91 So. 701, 1922 Miss. LEXIS 17 (Miss. 1922).

Plaintiff guilty of gross negligence, contributing to the injury, in crossing a railroad track at a private crossing is entitled to recover damages. Yazoo & M. V. R. Co. v. Williams, 114 Miss. 236, 74 So. 835, 1917 Miss. LEXIS 24 (Miss. 1917); Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, 1917 Miss. LEXIS 87 (Miss. 1917).

12. —Amount of damages.

Award of only $500 in actual damages to a motorcyclist who suffered severe injuries in a collision with automobile driven by unlicensed defendant was not erroneous, under showing that motorcyclist’s negligence contributed to the accident. Employers Mut. Casualty Co. v. Tompkins, 490 So. 2d 897, 1986 Miss. LEXIS 2489 (Miss. 1986).

Plaintiff is entitled to 50 percent of the damages arising from a pedestrian’s death where the pedestrian and the truckdriver who struck him were equally negligent in that the truckdriver failed to reduce the speed of his truck to avoid striking the decedent when the decedent came within range of the truck’s headlamps and the decedent, who was at a point in the roadway where there was not a marked crosswalk or an intersection, failed to perform his duty to yield the right-of-way to the truck. Hornburger v. Baird, 508 F. Supp. 84, 1980 U.S. Dist. LEXIS 16076 (N.D. Miss. 1980).

An award of $3000 damages to one who had sustained permanent and painful injuries in an automobile collision, and who in consequence had expended $3564, held grossly disproportionate to any contributory negligence imputable to plaintiff, and to justify the conclusion that it was either the result of passion or prejudice, or of a failure properly to evaluate plaintiff’s damages. Swartzfager v. Southern Bell Tel. & Tel. Co., 236 Miss. 322, 110 So. 2d 380, 1959 Miss. LEXIS 322 (Miss. 1959).

Twenty thousand dollars for the death of a lineman, resulting from his electrocution while working on a pole containing a high voltage wire, was not excessive since the jury was not required to apportion and compare the damages on account of the negligence of the parties, where the case was tried on the theory that either the power company’s alleged negligence was the sole proximate cause of the injury or the negligence of the deceased lineman was the sole proximate cause of his injury. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Award of one-sixth of the actual damages in a personal injury action did not represent a proper adjustment of responsibility under this section [Code 1942, § 1454] where there was no evidence that the plaintiff was negligent in any way; such verdict evinced passion and prejudice and should not be allowed to stand. Dixon v. Breland, 192 Miss. 335, 6 So. 2d 122, 1942 Miss. LEXIS 21 (Miss. 1942).

In view of fact that plaintiff and others were pushing his stalled automobile off the highway when defendant, whose headlights had a range of 500 to 600 feet, crashed into the rear of plaintiff’s automobile, demolishing it and severely injuring plaintiff, an award of $100 damages was so inadequate as to evince prejudice justifying reversal. Lee v. Reynolds, 190 Miss. 692, 1 So. 2d 487, 1941 Miss. LEXIS 83 (Miss. 1941).

Ten thousand dollars to widow and two children, aged 1 and 3 years, for death of 24-year-old husband and father, earning $12 per week, held excessive by $2,500, decedent’s negligence having been greater than negligence of railroad. Gulf & S. I. R. Co. v. Bond, 181 Miss. 254, 179 So. 355, 181 So. 741, 1938 Miss. LEXIS 67 (Miss. 1938), overruled, Illinois C. R. Co. v. Nelson, 245 Miss. 395, 146 So. 2d 69, 1963 Miss. LEXIS 527, 1963 Miss. LEXIS 547, 1962 Miss. LEXIS 560 (Miss. 1962), overruled in part, Illinois C. R. Co. v. Nelson, 245 Miss. 411, 148 So. 2d 712 (Miss. 1963).

Four hundred dollars for fractured skull and hip not inadequate under evidence authorizing damages proportionate to negligence of injured person. Pounders v. Day, 151 Miss. 436, 118 So. 298, 1928 Miss. LEXIS 324 (Miss. 1928).

An instance of the award of excessive damages. Yazoo & M. V. R. Co. v. Williams, 114 Miss. 236, 74 So. 835, 1917 Miss. LEXIS 24 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Contributory negligence as defense to action by state, United States, municipality, or other governmental unit. 1 A.L.R.2d 827.

Contributory negligence of one or more of the beneficiaries in an action for death as affecting the right of other beneficiaries who were not negligent. 2 A.L.R.2d 785.

Contributory negligence of parent as bar to an action by parent or administrator for death of child. 2 A.L.R.2d 785.

Contributory negligence of beneficiary as affecting action under death or survival statute. 2 A.L.R.2d 785.

Contributory negligence as a defense to a cause of action based upon violation of statute. 10 A.L.R.2d 853.

Contributory negligence of driver of motor vehicle as imputable to owner under statute making owner responsible for negligence of driver. 11 A.L.R.2d 1437.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death. 12 A.L.R.2d 611.

Application of last clear chance doctrine in comparative negligence case. 59 A.L.R.2d 1261.

Modern trends as to contributory negligence of children. 77 A.L.R.2d 917.

Comment Note–The doctrine of comparative negligence and its relation to the doctrine of contributory negligence. 32 A.L.R.3d 463.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence. 37 A.L.R.3d 1438.

Construction of “good Samaritan” statute excusing from civil liability one rendering care in emergency. 39 A.L.R.3d 222.

Modern development of comparative negligence doctrine having applicability to negligence actions generally. 78 A.L.R.3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively. 78 A.L.R.3d 421.

Choice of law as to application of comparative negligence doctrine. 86 A.L.R.3d 1206.

Automobile occupant’s failure to use seat belt as contributory negligence. 92 A.L.R.3d 9.

Nonuse of automobile seatbelts as evidence of comparative negligence. 95 A.L.R.3d 239.

Applicability of comparative negligence doctrine to actions based on strict liability in tort. 9 A.L.R.4th 633.

Effect of adoption of comparative negligence rules on assumption of risk. 16 A.L.R.4th 700.

Liability of theater owner or operator for injury to or death of patron resulting from lighting conditions on premises. 19 A.L.R.4th 1110.

Contributory negligence and assumption of rish in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 20 A.L.R.4th 517.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child. 26 A.L.R.4th 396.

Effect of plaintiff’s comparative negligence in reducing punitive damages recoverable. 27 A.L.R.4th 318.

Exterminator’s tort liability for personal injury or death directly resulting operations. 29 A.L.R.4th 987.

Modern trends as to contributory negligence of children. 32 A.L.R.4th 56.

Personal liability of public school teacher in negligence action for personal injury or death of student. 34 A.L.R.4th 228.

Liability of wharf owner or operator for personal injuries to invitees or licensees resulting from condition of premises or operation of equipment. 34 A.L.R.4th 572.

Personal liability of public school executive or administrative officer in negligence action for personal injury or death of student. 35 A.L.R.4th 272.

Personal liability in negligence action of public school employee, other than teacher or executive or administrative officer, for personal injury or death of student. 35 A.L.R.4th 328.

Liability for injury to customer or other invitee of retail store by falling of displayed, stored, or piled objects. 61 A.L.R.4th 27.

Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors. 71 A.L.R.4th 1108.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury. 75 A.L.R.4th 443.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury. 75 A.L.R.4th 538.

Rescue Doctrine: applicability and application of comparative negligence principles. 75 A.L.R.4th 875.

Modern status of rule imputing motor vehicle driver’s negligence to passenger on joint venture theory. 3 A.L.R.5th 1.

Comparative negligence: judgment allocating fault in action against fewer than all potential defendants as precluding subsequent action against parties not sued in original action. 4 A.L.R.5th 753.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation. 22 A.L.R.5th 464.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Products liability: Recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect. 50 A.L.R.5th 275.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim. 69 A.L.R.5th 625.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 83 A.L.R.5th 589.

Contributory Negligence or Comparative Negligence Based on Failure of Patient to Follow Instructions as Defense in Action Against Physician or Surgeon For Medical Malpractice. 84 A.L.R.5th 619.

Am. Jur.

22A Am. Jur. 2d, Death §§ 76- 81.

57A Am. Jur. 2d, Negligence §§ 256- 419.

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 291, 292 (Instruction to jury defining comparative negligence).

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 293, 294 (Instruction to jury as to comparative negligence of multiple defendants).

21 Am. Jur. Trials, Trial of a Personal Injury Case in a Comparative Negligence Jurisdiction, §§ 1 et seq.

35 Am. Jur. Trials 349, The Seatbelt Defense.

20 Am. Jur. Proof of Facts 2d 667, Contributory Negligence of Passenger Accepting Ride With Driver Suffering from Drowsiness, Illness, or Physical Defects.

49 Am. Jur. Proof of Facts 2d 191, Damages for Wrongful Death of Child.

49 Am. Jur. Proof of Facts 2d 379, Strict Products Liability: Misuse of Product.

3 Am. Jur. Proof of Facts 3d 71, The Seatbelt Defense.

CJS.

25A C.J.S., Death §§ 211–220.

65 C.J.S., Negligence §§ 253-329.

Law Reviews.

Spell, Stemming the tide of expanding liability; the coexistence of comparative negligence and assumption of risk. 8 Miss. C. L. Rev. 159, Spring, 1988.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L.J. 563, September 1982.

Wade, Multiple Tortfeasor Liability in Products Liability Suits. 55 Miss. L. J. 683, December 1985.

Comment, Fair Apportionment of Fault Among Joint Tortfeasors – A Mississippi Perspective. 55 Miss. L. J. 709, December 1985.

McIntosh, Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part II, 17 Miss. C. L. Rev. 277, Spring, 1997.

Practice References.

1 Am Law Prod Liab 3d, Overview of Products Liability Law § 1:81.

3 Am Law Prod Liab 3d, Contributory Negligence; Comparative Fault § 40:26.

§ 11-7-17. Questions of negligence and contributory negligence for jury.

All questions of negligence and contributory negligence shall be for the jury to determine.

HISTORY: Codes, Hemingway’s 1917, § 503; 1930, § 512; 1942, § 1455; Laws, 1910, ch. 135; Laws, 1920, ch. 312.

Cross References —

Presumption of negligence for injury by railroads and motor vehicles, see §13-1-123.

Liability of railroad company for negligence and mismanagement, see §77-9-435.

JUDICIAL DECISIONS

1. In general.

2. Negligence generally.

3. Proximate cause.

4. Contributory negligence.

5. Comparative negligence and apportionment of damages.

6. Instructions.

1. In general.

Jury verdict defied all logic, as the evidence presented at trial established that the driver was negligent as a matter of law for failing to maintain a proper lookout and to yield the right-of-way by executing a turn across the insured’s lane of travel. A verdict should have been returned in favor of the insured because the violation of said statutory duties by the driver was the unequivocal proximate cause of the insured’s injury; even if the driver was not negligent per se, the facts presented at trial unconditionally demonstrated that the collision was the result of her negligence and the trial court committed reversible error in failing to apply Miss. R. Civ. P. 50, and by denying the insured’s motion for judgment notwithstanding the verdict. State Farm Auto Ins. Cos. v. Davis, 887 So. 2d 192, 2004 Miss. App. LEXIS 1065 (Miss. Ct. App. 2004).

On a motion for judgment notwithstanding the verdict, the trial court, under §11-7-17 and Miss. Const. Art. 3 § 31, must consider all the evidence in the light and with all reasonable inferences most favorable to the party opposed to the motion, and if the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable men could not have arrived at a contrary verdict, granting the motion is proper, but if there is substantial evidence opposed to the motion, such that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and it is no answer to say that the jury’s verdict involves speculation or conjecture. City of Jackson v. Locklar, 431 So. 2d 475, 1983 Miss. LEXIS 2608 (Miss. 1983).

In an action by the owner of an automobile for damages arising out of the theft of the vehicle while it was in the possession of a bailee for hire, the trial court properly refused to grant a directed verdict, peremptory instruction or judgment n.o.v. in favor of the bailee where a question of negligence existed over the bailee’s leaving the vehicle, with the keys placed above the sun visor, on a public street exposed to possible theft for one hour and five minutes. City of Meridian v. Webb, 387 So. 2d 85, 1980 Miss. LEXIS 2038 (Miss. 1980).

The violation of a traffic law or safety statute may constitute negligence as a matter of law, but in order to capitalize on the violation of a safety statute by a defendant, the plaintiff must establish, in addition to a causal relation between the violation of the statute and the harm suffered, that he is one of the class of persons which the statute was intended to protect, and that the harm suffered was of the kind the statute was designed to prevent, or in other words that the harm suffered resulted from the type of risk covered by the statute. U-Haul Co. v. White, 232 So. 2d 705, 1970 Miss. LEXIS 1635 (Miss. 1970).

A court should not, by its decree, fail to give effect to the statute. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

In litigation, growing out of death and injuries sustained in a collision of two automobiles, filed in the chancery court in the county where letters of administration on the decedent’s estates were issued, complainants charged that the accident was due to the negligence of a construction company, through its agent, in obstructing the highway, charged negligence in the operation of his automobile on the part of another defendant, who it was alleged was an agent of a nonresident insurance company, and also charged, on information and belief, that another defendant had money and effects of the nonresident insurance company, and prayed for an attachment, where, upon appeal from the decrees in favor of complainants, the Supreme Court found no reversible error in the record, the judgment would not be reversed in view of Mississippi Constitution § 147, and while the chancery court in his discretion might have directed the trial of the case by jury, error could not be predicated upon the refusal of a jury trial. Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 1957 Miss. LEXIS 512 (Miss. 1957).

This provision is not binding in a Federal court. Mississippi Power & Light Co. v. Whitescarver, 68 F.2d 928, 1934 U.S. App. LEXIS 5027 (5th Cir. Miss. 1934).

This provision does not have the effect in a Federal court of making it erroneous for the court to direct a verdict where the evidence is such that a verdict the other way would be set aside. Blass v. Virgin Pine Lumber Co., 50 F.2d 29, 1931 U.S. App. LEXIS 4398 (5th Cir. Miss. 1931).

This section [Code 1942, § 1455] does not apply in the trial of a matter of purely equity jurisdiction. Boyd v. Applewhite, 121 Miss. 879, 84 So. 16, 1920 Miss. LEXIS 128 (Miss. 1920).

2. Negligence generally.

In an action on behalf of an infant by her parents for injuries sustained by the child when the driver of an automobile drove over her while leaving a parking space in front of the child’s parents’ home, the trial court properly declined to give a peremptory instruction on liability favorable to the parents where the evidence, when viewed in a light most favorable to the verdict, portrayed circumstances from which reasonable minds could find that the driver had afforded the infant all of the care which was due under the circumstances, including the presence of her parents in the immediate vicinity, and where the evidence did not establish as a matter of law that the driver had violated the duty imposed by statute to “exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.” Haver v. Hinson, 385 So. 2d 605, 1980 Miss. LEXIS 2018 (Miss. 1980).

Questions of negligence are for the jury’s determination. Where, however, there is no issue of fact, then the court determines the negligence question. McGee v. Bolen, 369 So. 2d 486, 1979 Miss. LEXIS 2255 (Miss. 1979).

In action against bank for having negligently lost deposit made by plaintiff, the issue as to whether or not the bank exercised reasonable care in finding the lost deposit was a question for the determination of the jury. First Nat'l Bank v. Langley, 314 So. 2d 324, 1975 Miss. LEXIS 1678 (Miss. 1975).

Where plaintiff’s case was based on the negligence of defendant and the only answer of defendant was an affirmative defense, the county court erred in disposing of the case at a preliminary hearing on the motion to dismiss, thereby denying plaintiff the right to present his case to the jury on the facts. Gates v. Owen Chevrolet Co., 294 So. 2d 179, 1974 Miss. LEXIS 1818 (Miss. 1974).

All questions of negligence and contributory negligence are for the jury to decide under proper instructions of the court as to the applicable principles of law involved. Smith v. Walton, 271 So. 2d 409, 1973 Miss. LEXIS 1507 (Miss. 1973).

Where the evidence showed that the defendant’s vision, as she approached a smoke covered portion of the highway, slowing her automobile to approximately 30 miles per hour was restricted to approximately one and one-half car lengths in front of her automobile, it was never entirely obscured, the question of the defendant’s negligence in colliding with another vehicle traveling in the opposite direction in defendant’s lane while passing another vehicle was for the jury, precluding a peremptory instruction as to defendants liability in a suit for personal injuries. Butler v. Chrestman, 264 So. 2d 812, 1972 Miss. LEXIS 1366 (Miss. 1972).

When a motorist is driving at a reasonable rate of speed and is obeying the rules of the road, he is not liable for injuries to a child who darts out from behind a fence or a parked or stopped vehicle so suddenly that the motorist cannot stop or otherwise avoid injuring the child. Dorrough v. State, 245 So. 2d 188, 1971 Miss. LEXIS 1356 (Miss. 1971).

In an action by a passenger against the defendant of an automobile for personal injuries sustained when the driver lost control of the automobile on a curve, evidence as to the driver’s intoxicated condition and touching on the question of assumption of the risk by the passenger, presented an issue for the jury. Griffin v. Holliday, 233 So. 2d 820, 1970 Miss. LEXIS 1684 (Miss. 1970).

Assumption of the risk as a complete defense to an action for negligence is a viable doctrine in Mississippi in cases other than master and servant relationships, and ordinarily its application is for the trier of fact. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

Where a father did not have a conscious purpose or intention that his son should recross a highway unattended and be exposed to known danger in so doing, and had no actual knowledge of negligent vehicular operation by third parties which would increase the danger to his child beyond that posed by ordinary traffic hazards, it could not be said that he assumed the risk of the child’s injury under Mississippi law. Wright v. Standard Oil Co., 319 F. Supp. 1364, 1970 U.S. Dist. LEXIS 9331 (N.D. Miss. 1970), rev'd, 470 F.2d 1280, 1972 U.S. App. LEXIS 6335 (5th Cir. Miss. 1972).

In an action for injuries by one injured by an elevator while on defendant’s premises for the purpose of installing equipment, the defendant’s motion for judgment notwithstanding the verdict should have been sustained where the plaintiff failed to establish a causal connection between any defect in the elevator and the plaintiff’s injury, and thus there was no issue for the jury’s determination. General Tire & Rubber Co. v. Darnell, 221 So. 2d 104, 1969 Miss. LEXIS 1491 (Miss. 1969).

Where defendant driver of overtaken truck permitted his vehicle to drift across the centerline and speeded up when plaintiff attempted to pass on the left, the evidence was sufficient to raise a jury question on the issue of the truckdriver’s negligence. Lewis Grocery Co. v. Blackwell, 209 So. 2d 639, 1968 Miss. LEXIS 1465 (Miss. 1968).

Code 1942, § 8215 should be construed in a practical manner, and it does not mean that a motorist forced to stop momentarily upon the paved portion of a highway because the vehicle in front of him stopped and oncoming traffic prevented him from passing is guilty of negligence in not immediately driving from the highway onto the shoulder. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

To instruct the jury for the plaintiff in an automobile collision action that jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

The legislature has adopted, as a statutory policy, the general rule that the issue of negligence and contributory negligence are to be determined by the jury, and ordinarily such issues should not be disposed of by the court in a peremptory manner. De Laughter v. Womack, 250 Miss. 190, 164 So. 2d 762, 1964 Miss. LEXIS 455 (Miss. 1964).

A jury’s verdict for defendants may not be set aside because the evidence was sharply conflicting and the credibility of a witness was open to question. Gaskin v. Davis, 246 Miss. 166, 149 So. 2d 850, 1963 Miss. LEXIS 432 (Miss. 1963).

Evidence warranted jury in automobile collision case in finding negligence and contributory negligence. Hawkins v. Hillman, 245 Miss. 385, 149 So. 2d 17, 1963 Miss. LEXIS 526 (Miss. 1963).

Negligence in turning a corner rapidly into the entrance of a building while pushing a heavy hand cart, at a time and place where collision with a pedestrian might reasonably have been foreseen, is for the jury. Dr. Pepper Bottling Co. v. Bruner, 245 Miss. 276, 148 So. 2d 199, 1962 Miss. LEXIS 552 (Miss. 1962).

In bowler’s action to recover for damages for injuries sustained in fall allegedly due to the negligence of the bowling establishment proprietor, questions as to assumption of risks and contributory negligence should have gone to jury under proper instructions. Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So. 2d 558, 1962 Miss. LEXIS 543 (Miss. 1962).

In an action for damages predicated upon the negligence of an electrical power company in failing to cut off electric power after it had notice that eight of plaintiff’s cows had been electrocuted by a fallen wire, defenses suggesting that, since plaintiff could not possibly eat the flesh of eight cows, it was his intention to prepare the carcasses for illegal sale to the public for food, and also alleging that the power company had remedied the dangerous situation almost immediately, presented jury questions. King v. Mississippi Power & Light Co., 244 Miss. 486, 142 So. 2d 222, 1962 Miss. LEXIS 469 (Miss. 1962).

The operator of an airplane may be found to have been negligent where his take-off from a pasture in which he had landed caused the cattle grazing therein to stampede. Brunt v. Chicago Mill & Lumber Co., 243 Miss. 607, 139 So. 2d 380, 1962 Miss. LEXIS 384 (Miss. 1962).

Negligence and contributory negligence are jury questions. Louisville & N. R. Co. v. Price, 243 Miss. 99, 137 So. 2d 787, 1962 Miss. LEXIS 319 (Miss. 1962).

A verdict on conflicting evidence in a negligence case will be set aside only if clearly against the weight of evidence or influenced by passion, prejudice or corruption. Schumpert v. Watson, 241 Miss. 199, 129 So. 2d 627, 1961 Miss. LEXIS 332 (Miss. 1961), overruled in part, Hollingsworth v. Bovaird Supply Co., 465 So. 2d 311, 1985 Miss. LEXIS 1942 (Miss. 1985).

Responsibility for collision of truck and bus which entered intersection without stopping is for the jury. Greyhound Corp. v. Kindle, 240 Miss. 702, 128 So. 2d 567, 1961 Miss. LEXIS 500 (Miss. 1961).

Conflict of testimony as to the speed of a train presents a question for the jury. New Orleans & N. R. Co. v. Shows, 240 Miss. 604, 128 So. 2d 381, 1961 Miss. LEXIS 490 (Miss. 1961).

A typical jury question is presented where each party introduces evidence to show that the cause of an automobile collision was the negligence of the other. Ferguson v. Denton, 239 Miss. 591, 124 So. 2d 279, 1960 Miss. LEXIS 327 (Miss. 1960).

In an action for personal injuries sustained by a plaintiff when his automobile was struck from the rear by the defendant’s automobile, where the evidence presented jury questions as to whether the defendant was negligent in driving at an excessive speed, or following another vehicle too closely, or in failing to have his vehicle under proper control, or whether the sole proximate cause of the collision was the manner in which the plaintiff’s vehicle was driven into the intersection, the trial court erred in directing a verdict for plaintiff on the issue of liability. Buntyn v. Robinson, 233 Miss. 360, 102 So. 2d 126, 1958 Miss. LEXIS 391 (Miss. 1958).

In an action for personal injuries and property damages arising out of a collision between plaintiff’s automobile and that of the defendant when defendant allegedly drove, without stopping, from a private driveway into the highway upon which plaintiff was proceeding in such manner that plaintiff could not avoid striking him, conflicting evidence raised jury questions as to defendant’s negligence, and whether his negligence was the proximate cause of the accident. Stewart v. Madden, 233 Miss. 206, 101 So. 2d 353, 1958 Miss. LEXIS 372 (Miss. 1958).

In a wrongful death action arising out of defendant’s automobile colliding with a bicycle ridden by a nine-year old child upon the highway, jury’s verdict for defendant was against the overwhelming weight of the evidence where it appeared that the road in the vicinity of the accident was straight and defendant’s view was entirely unobstructed, and the defendant testified that he had seen the boy on the bicycle for a distance of several hundred feet before overtaking him, and yet had neither sounded his horn nor applied his brakes until he was within 12 or 15 feet of the boy, when it was too late to avoid hitting him. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

Upon a motion for a directed verdict, all the facts testified to, and all inferences necessarily and logically to be deduced therefrom, are to be taken as true in favor of the party against whom the motion is asked, and the case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery could be had upon any view which could be properly taken of the facts which the evidence tends to establish; but if more than one reasonable inference can be garnered from the facts, the question of negligence is for the jury. Mock v. Natchez Garden Club, 230 Miss. 377, 92 So. 2d 562, 1957 Miss. LEXIS 380 (Miss. 1957).

In an action by parents to recover for the death of their son who, while swimming at nighttime, drowned in defendant’s swimming pool which had been engaged by a church group, evidence as to the adequacy of the lighting at the swimming pool and the possible negligence of the defendant’s life guard raised questions for the jury as to defendant’s liability, and the trial court erred in peremptorily directing a jury verdict for defendant. Mock v. Natchez Garden Club, 230 Miss. 377, 92 So. 2d 562, 1957 Miss. LEXIS 380 (Miss. 1957).

Where a case turns upon circumstantial evidence it should rarely be taken from the jury. Cameron v. Hootsell, 229 Miss. 80, 90 So. 2d 195, 1956 Miss. LEXIS 588 (Miss. 1956).

In an action against a lumber company for injuries sustained when plaintiff was struck by a piece of lumber which allegedly fell off the lumber company’s truck while plaintiff was walking along the side of the street at a point where there were no sidewalks, circumstantial evidence presented questions of fact for jury’s determination as to whether the truck in question was that of the lumber company, and was being negligently operated on the occasion in question by the servant or agent of the lumber company acting within the scope of his employment, and in furtherance of his master’s business. Cameron v. Hootsell, 229 Miss. 80, 90 So. 2d 195, 1956 Miss. LEXIS 588 (Miss. 1956).

In an action for injuries incurred by plaintiff bicyclist when, approaching defendant’s truck from rear, he tried to pass it at an intersection, was hit by the truck as it also started to turn right, and was catapulted in the pathway of another car, the degrees of negligence were for the jury to determine. Cochran v. Peeler, 209 Miss. 394, 47 So. 2d 806, 1950 Miss. LEXIS 404 (Miss. 1950).

This statute [Code 1942, § 1455] does not change fundamental condition that in action to recover for negligence there must be negligence, and without it, there is nothing for jury. Mississippi Butane Gas Systems, Inc. v. Welch, 208 Miss. 637, 45 So. 2d 262, 1950 Miss. LEXIS 280 (Miss. 1950).

In advertiser’s action against publisher of newspaper for negligence in publishing advertisement that stock of clothing will be sold for greater discount than that intended by advertiser, it is for jury to say whether course followed by advertiser in selling at advertised price was so reasonable as to constitute foreseeable result of publisher’s negligence, whether such course was made reasonable by conduct and assurance of publisher as to his responsibility or was result of advertiser’s own independent judgment, and whether such judgment was exercised reasonably and without reasonably available mitigating alternative. Meridian Star v. Kay, 207 Miss. 78, 41 So. 2d 30, 1949 Miss. LEXIS 318 (Miss. 1949).

Danger and negligence are not synonymous, nor is the existence of a defect, of necessity, either danger or negligence. Ming v. Jackson, 202 Miss. 260, 31 So. 2d 900, 1947 Miss. LEXIS 269 (Miss. 1947).

In action by truck driver for oil company for injuries sustained while delivering fuel for defendant contractor’s tractors and other machines located between levee and river when caught between oil truck and defendant’s caterpillar tractor used in pulling the truck over the levee which suddenly rolled down the incline, whether the assistance intended to be given the plaintiff in attempting to pull the truck over the levee was in the course of the defendant’s business or merely an act of unselfish generosity, whether the caterpillar tractor had defective brakes or defective brake-locks which caused the tractor to roll against the plaintiff, and, if so, whether such defects amounted to failure on defendant’s part to exercise reasonable care for plaintiff’s safety, were questions for the jury. Sugg v. Hendrix, 153 F.2d 240, 1946 U.S. App. LEXIS 1906 (5th Cir. Miss. 1946).

3. Proximate cause.

In a wrongful death action arising out of a collision between an automobile in which decedent was riding and defendant’s train at a railroad crossing on a foggy night, under conflicting evidence, the question of whether the alleged negligence of the railroad company in blocking the crossing for a period of more than five minutes, in violation of Code 1942, § 7780, was the effective cause of the accident, or whether the accident was due solely to the negligence of the driver of the car, was for the jury. Green v. Gulf, M. & O. R. Co., 244 Miss. 211, 141 So. 2d 216, 1962 Miss. LEXIS 442 (Miss. 1962).

Since there was no substantial evidence of negligence on the part of the railroad, and the sole proximate cause of decedent’s death was his failure to look and listen prior to driving his automobile onto the crossing in front of defendant’s approaching train, judgment for plaintiff would be reversed and judgment entered in the Supreme Court for the railroad. Illinois C. R. Co. v. Smith, 243 Miss. 766, 140 So. 2d 856, 1962 Miss. LEXIS 406 (Miss. 1962).

Although motorist’s failure to stop before attempting to cross railroad tracks was negligence contributing to the collision with a railroad switch engine, trial court properly refused railroad’s requested peremptory instruction where the evidence presented questions for the jury as to whether the proximate cause of the collision was the failure of the railroad to ring the bell on its engine, or the negligence of the railroad’s engineer in failing to stop the engine when the engineer saw that motorist’s automobile was not going to stop. New Orleans & N. R. Co. v. Ready, 238 Miss. 199, 118 So. 2d 185, 1960 Miss. LEXIS 396 (Miss. 1960).

In an action against a driver by a share-the-expense guest for injuries allegedly sustained when the driver’s automobile foot brake failed to function properly so that the automobile collided into the rear of another which had come to a stop, the question of whether the driver was negligent in failing to exercise such care, after her foot brake failed to work, as a reasonably prudent and capable driver would have used under the unusual circumstances to avoid an accident, and whether such negligence, if any, was the proximate cause of the guest’s injury, were for the jury. Moore v. Taggart, 233 Miss. 389, 102 So. 2d 333, 1958 Miss. LEXIS 396 (Miss. 1958).

In an action for personal injuries and property damages arising out of a collision between plaintiff’s automobile and that of the defendant when defendant allegedly drove, without stopping, from a private driveway into the highway upon which plaintiff was proceeding in such manner that plaintiff could not avoid striking him, conflicting evidence raised jury questions as to defendant’s negligence, and whether his negligence was the proximate cause of the accident. Stewart v. Madden, 233 Miss. 206, 101 So. 2d 353, 1958 Miss. LEXIS 372 (Miss. 1958).

Where a motorist approaching an intersection with the signal lights flashing red in her direction, failed to stop before entering therein, the court properly submitted to the jury the issue of whether such negligence was the sole cause of the collision. Bates v. Walker, 232 Miss. 804, 100 So. 2d 611, 1958 Miss. LEXIS 333 (Miss. 1958).

In an action for the death of an eight-year-old child killed when struck by a large diesel trailer truck which was not equipped with service brakes, jury questions were presented, under conflicting evidence, as to whether the truck driver was negligent in driving at a speed in excess of 45 miles an hour, in failing to maintain a proper lookout and observing the movements of a child crossing the highway in time to avoid injuring her, in failing to maintain proper control of his vehicle after he saw or, by the exercise of reasonable care, should have seen the child on the highway, and the driver’s negligence, if any, was the proximate or contributing cause of the death of the child. Reed v. State, 232 Miss. 432, 99 So. 2d 455, 1958 Miss. LEXIS 290 (Miss. 1958).

In an action against a railroad and its engineer for damages to a tractor trailer caused by a crossing collision, where the evidence established that the railroad and its engineer was liable as a matter of law, but also raised jury questions as to the contributory negligence, if any, of the truck driver, whether under the comparative negligence statute plaintiff’s damages sustained should have been diminished, whether the negligence of the engineer was the sole, proximate cause of the collision, and the applicability of the last clear chance doctrine, the case was reversed and remanded for submission to a jury on issues of damages alone. New Orleans & N. R. Co. v. Dixie Highway Express, Inc., 230 Miss. 92, 92 So. 2d 455, 1957 Miss. LEXIS 348 (Miss. 1957).

In an action by a farm equipment mechanic, employed by defendant, to recover for injuries sustained when the arms of the defendant’s cotton picker flew up crushing his right arm, where it appeared that before the plaintiff had arrived at the farm the defendant had taken the head off of the cotton picker, without releasing the tension, leaving the machine in a dangerous condition to be worked on, it was for the jury to determine whether the defendant should have told the plaintiff that the tension had not been released, and whether his failure to apprise plaintiff of that fact constituted negligence, which proximately caused or contributed to plaintiff’s injury. Cole v. Tullos, 228 Miss. 815, 90 So. 2d 32, 1956 Miss. LEXIS 569 (Miss. 1956).

In an action by a bicyclist against a cab company for injuries suffered when he jumped off the bicycle to avoid being crushed by the cab against a van type truck ahead, the question of excessive speed of the cab and the proximate cause of the negligence was for the jury. Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52 So. 2d 356, 1951 Miss. LEXIS 412 (Miss. 1951).

It is for jury to determine whether defendant’s negligence in not raising trap door over train steps so as to permit plaintiff to alight from bottom step was direct, contributing cause of plaintiff’s injuries, where plaintiff had assisted passenger aboard train and those in charge of train permitted plaintiff to alight while train was moving. McClellan v. Illinois C. R. Co., 204 Miss. 432, 37 So. 2d 738, 1948 Miss. LEXIS 379 (Miss. 1948).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high voltage wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power, or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

The negligence of the defendant complained of must be the proximate cause of the injury. Hines v. Moore, 124 Miss. 500, 87 So. 1 (Miss. 1921).

4. Contributory negligence.

In a product liability suit, evidence of plaintiff’s alcohol and drug use before riding an all-terrain vehicle (ATV), even though he was not legally intoxicated when he was hurt in an ATV accident, was not subject to exclusion on a motion in limine because it was relevant to the issue of contributory negligence, which was a jury question under Miss. Code Ann. §11-7-17. Fife v. Polaris Indus., Inc., 2008 U.S. Dist. LEXIS 9882 (S.D. Miss. Jan. 15, 2008).

A plaintiff in a personal injury action was not entitled to an additur under §11-1-55 to increase a $2,000 damages award, even though the plaintiff had introduced medical bills incurred in the treatment of his injuries which totalled $2,085.90 and he claimed that the jury had failed to consider his claims for pain, suffering and lost wages, where it was apparent that the jury believed that the plaintiff was somewhat responsible for his own injuries and accordingly reduced his award of damages to the amount of $2,000; a determination that the jury was incorrect in assessing the plaintiff’s contributory negligence would be tantamount to holding that a jury is to be instructed that it must return a verdict for all alleged damages, which is not a proper statement of the law. Leach v. Leach, 597 So. 2d 1295, 1992 Miss. LEXIS 217 (Miss. 1992).

In medical malpractice case, court may not remove issue of contributory negligence from consideration of jury where defendant physician has introduced proof that patient did not seek follow-up treatment and had been neglectful of patient’s physical condition. Reikes v. Martin, 471 So. 2d 385, 1985 Miss. LEXIS 2101 (Miss. 1985).

Where on a new trial, granted because of an erroneous instruction on contributory negligence, damages alone should be submitted to the jury, but the defendant may assert, in diminution of damages, any negligence on the part of plaintiff’s decedent which can be shown to have contributed to the injuries sustained by the decedent. Glover v. Daniels, 310 F. Supp. 750, 1970 U.S. Dist. LEXIS 12400 (N.D. Miss. 1970).

In an action for injuries sustained by a trucker when his truck overturned, the question whether a fishery manager’s negligence in directing the truck to be driven on a wet levee was superseded by the plaintiff’s negligence, in undertaking to dump his truck there, was for the jury. Daves v. Reed, 222 So. 2d 411, 1969 Miss. LEXIS 1536 (Miss. 1969).

In an action for injuries sustained by a trucker when his truck overturned, the question as to whether the trucker fully appreciated the danger involved in driving his truck on a wet levee, and voluntarily assumed the consequences of his actions, was for the jury. Daves v. Reed, 222 So. 2d 411, 1969 Miss. LEXIS 1536 (Miss. 1969).

The fact that the plaintiff motorist may have been guilty of considerable contributory negligence does not per se bar him from the right of recovery. Lewis Grocery Co. v. Blackwell, 209 So. 2d 639, 1968 Miss. LEXIS 1465 (Miss. 1968).

The fact that the plaintiff was guilty of contributory negligence does not per se make the verdict of the jury contrary to the overwhelming weight of the evidence, assuming that the defendant was negligent. Philco Distributors, Inc. v. Herron, 195 So. 2d 473, 1967 Miss. LEXIS 1441 (Miss. 1967).

The legislature has adopted, as a statutory policy, the general rule that the issue of negligence and contributory negligence are to be determined by the jury, and ordinarily such issues should not be disposed of by the court in a peremptory manner. De Laughter v. Womack, 250 Miss. 190, 164 So. 2d 762, 1964 Miss. LEXIS 455 (Miss. 1964).

In an action for damages resulting when defendant’s truck-trailer unit ran into the rear end of plaintiff’s truck-trailer unit on the curved portion of the highway, the court did not err in refusing to charge the defendant’s driver with negligence in respect to speeding, overtaking on the right, and following too closely, particularly in view of this section [Code 1942, § 1455]. Green Truck Lines, Inc. v. Hooper, 233 Miss. 794, 103 So. 2d 443, 1958 Miss. LEXIS 441 (Miss. 1958).

In an action by an owner of a truck against a corporation for damages for property and personal injuries arising out of an accident allegedly caused by the negligence of the corporation’s agent in blocking a temporary bypass with his automobile and another that he had been towing, the question of whether the truck owner was negligent in failing to stop prior to the accident when he was blinded, or almost blinded, by the lights of the agent’s car, was for the jury. Commercial Credit Corp. v. Smith, 231 Miss. 574, 96 So. 2d 911, 1957 Miss. LEXIS 539 (Miss. 1957).

In an action for personal injuries sustained by plaintiff when the pickup truck which he was driving collided with a bus which was parked one-half thereof on a paved portion of highway to discharge passenger, where evidence showed that it was raining and visibility was poor and that the plaintiff was traveling only about twenty-five or thirty miles per hour and that the lights on the bus were so dim that the plaintiff could not see them until he was within twenty-five or thirty feet of the bus, the question of contributory negligence is for the jury to determine. Continental Southern Lines, Inc. v. Williams, 226 Miss. 624, 85 So. 2d 179, 1956 Miss. LEXIS 440 (Miss. 1956).

Code 1930, §§ 511 and 512, (Code 1942, §§ 1454 and 1455) abolished contributory negligence as a defense and makes negligence and contributory negligence questions for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Whether motorist whose automobile struck a gondola car spotted by railroad employees so that it extended partly across public highway was contributorily negligent held for jury. Magers v. Okolona, H. & C. C. R. Co., 174 Miss. 860, 165 So. 416, 1936 Miss. LEXIS 201 (Miss. 1936).

By reason of this provision (Hemingway’s Code 1917, § 503), it is proper to refuse a charge that a defendant is not liable if the plaintiff is guilty of contributory negligence. Reynolds-West Lumber Co. v. Kellum, 19 F.2d 72, 1927 U.S. App. LEXIS 2188 (5th Cir. Miss. 1927).

5. Comparative negligence and apportionment of damages.

A personal injury case would be reversed and remanded for trial in order for the jury to find liability, if any, under the comparative negligence principles of §11-7-17 where it was apparent from the lower court’s order granting summary judgment that the court found the existence of an “open and obvious” danger in making its determination, since the “open and obvious” defense has been abolished. Baptiste v. Jitney Jungle Stores of Am., 651 So. 2d 1063, 1995 Miss. LEXIS 122 (Miss. 1995).

The “open and obvious” defense to negligence actions would be abolished, and damages would be determined through application of the true comparative negligence doctrine; thus, a trial judge erred in construing the open and obvious defense as a complete bar to the recovery of damages, since it should only be used to mitigate damages on a comparative negligence basis under §11-7-15. Tharp v. Bunge Corp., 641 So. 2d 20, 1994 Miss. LEXIS 358 (Miss. 1994).

Under this jurisdiction’s comparative negligence statute, it is for the jury to decide not only all questions of negligence, but also whether it will diminish the damages in proportion to the amount of the negligence attributable to the plaintiff, even if no instruction to this effect is requested by either party. Medley v. Carter, 234 So. 2d 334, 1970 Miss. LEXIS 1407 (Miss. 1970).

The evidence created a question for the jury as to the comparative negligence of a westbound motorist whose vehicle came to rest in the center of the highway after colliding with an oncoming motorist, and an eastbound motorist who collided with the vehicle shortly after the first collision, and the trial judge erred in setting aside the jury verdict and rendering a judgment notwithstanding the verdict for the westbound motorist. Medley v. Carter, 234 So. 2d 334, 1970 Miss. LEXIS 1407 (Miss. 1970).

Where two Mississippi motorists were killed in an automobile collision which occurred in Louisiana, their estates were being administered in Mississippi, and their administratrices had respectively filed in a Mississippi court an action and counterclaim for damages as a consequence of the deaths of the decedents, the issues of liability under both the declaration and counterclaim should have been submitted to the jury by appropriate instructions under the Mississippi comparative negligence statute, despite the fact that the law of Louisiana, where the fatal collision occurred, barred a recovery where contributory negligence is established. Mitchell v. Craft, 211 So. 2d 509, 1968 Miss. LEXIS 1266 (Miss. 1968).

Although the defendant in a wrongful death action did not ask for or receive an instruction on contributory negligence, the jury had the right to apply the comparative negligence statute without an instruction to that effect. Winstead v. Hall, 251 Miss. 800, 171 So. 2d 354, 1965 Miss. LEXIS 904 (Miss. 1965).

Damages for personal injury will not be held grossly inadequate where jury, in determining amount, may have found contributory negligence. Ramsey v. Price, 249 Miss. 192, 161 So. 2d 778, 1964 Miss. LEXIS 385 (Miss. 1964).

Where there is evidence warranting the jury in finding contributory negligence, an appellate court may not set aside a verdict on the ground of inadequacy of damages. Gore v. Patrick, 246 Miss. 715, 150 So. 2d 169, 1963 Miss. LEXIS 497 (Miss. 1963).

Question of the extent to which recovery for negligence is reduced by the injured person’s contributory negligence is for the trier of the facts. Illinois C. R. Co. v. Williams, 242 Miss. 586, 135 So. 2d 831, 1961 Miss. LEXIS 595 (Miss. 1961).

On a retrial of a negligence action on the issue of damages alone, the evidence should not be limited to the question of damages, but facts should be presented as to the negligence of all the parties, and the jury could apportion damages under the comparative negligence statute. Jenkins v. Cogan, 238 Miss. 543, 119 So. 2d 363, 1960 Miss. LEXIS 438 (Miss. 1960); Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

It is for the jury to decide whether it will diminish the damages in proportion to the amount of negligence attributable to the plaintiff when under all the testimony and circumstances thereby shown a part of the negligence contributing to plaintiff’s injuries was attributable to his own negligence, even if no instruction to this effect is requested by either party. Mutual Life Ins. Co. v. Rather, 221 Miss. 527, 73 So. 2d 163, 1954 Miss. LEXIS 559 (Miss. 1954).

In an action for injuries sustained by plaintiff who was struck by an automobile while standing on the shoulder of a highway waiting for a ride, a finding that the plaintiff had stepped into the highway in front of an automobile was not supported by evidence and therefore did not warrant the jury in employing the comparative negligence doctrine, and a new trial would be granted on the issue of damages alone when all the facts should be presented to the jury on the question of negligence and the jury will have the right to apportion the damages under the comparative negligence statute. Vaughan v. Bollis, 221 Miss. 589, 73 So. 2d 160, 1954 Miss. LEXIS 567 (Miss. 1954).

In a proceeding on libel for collision, damages would be apportioned equally in a case where both parties had been at fault to the extent of twenty per cent and eighty per cent. In re Adams, 125 F. Supp. 110, 1954 U.S. Dist. LEXIS 2632 (D.N.Y. 1954), aff'd, 237 F.2d 884, 1956 U.S. App. LEXIS 4743 (2d Cir. N.Y. 1956).

6. Instructions.

In an action by an employee against his employer arising from an on-the-job injury, the trial court properly granted the employee peremptory instructions on contributory negligence and assumption of the risk, even though §11-7-17 provides that “all questions of negligence and contributory negligence shall be for the jury to determine,” where there was no proof indicating that any potential negligence or assumption of the risk by the employee led to the injury. Vicksburg v. Young, 616 So. 2d 883, 1992 Miss. LEXIS 779 (Miss. 1992).

When there is evidence to support a comparative negligence instruction, it is not error to give the instruction even though each party may contend that the other was entirely at fault. Pham v. Welter, 542 So. 2d 884, 1989 Miss. LEXIS 148 (Miss. 1989).

In an action for damages arising out of an automobile collision in which the plaintiff’s car was struck by that of the defendant, the trial court erred in giving a preemptory instruction that the plaintiff had been guilty of negligence in failing to keep a reasonable lookout to the rear of her vehicle before turning off a highway where the plaintiff’s testimony about her actions prior to the collision raised a question of fact for the jury as to whether she had taken all reasonable precautions prior to making the turn. Kennedy v. Reed, 393 So. 2d 480, 1981 Miss. LEXIS 1915 (Miss. 1981).

In an action for personal injuries, an instruction that the driver of a pickup truck, which ran over a motorcyclist after he had been thrown to the highway following a collision with the defendant’s automobile, was negligent in the operation of his truck, and if the jury believed from a preponderance of the evidence that the negligence of the truck driver contributed to the motorcyclist’s injury, then the defendant was not responsible for such of the motorcyclist’s injuries which were caused by the negligence of the truckdriver unless the jury should believe from a preponderance of the evidence that such negligence was foreseeable by the defendant, could not be construed as being in effect a peremptory instruction to find for the defendant. Ratliff v. Nail, 231 So. 2d 798, 1970 Miss. LEXIS 1611 (Miss. 1970).

It was erroneous to grant the “emergency instruction” where it raised an inference that if the driver of a truck had suddenly turned his vehicle across the center line into the left lane of the highway at the time when the defendant’s bus was about to pass, that then the defendant was not guilty of contributory negligence in driving at an unlawful speed and approaching the truck at an unreasonable rate in an unreasonable manner. Peel v. Gulf Transport Co., 252 Miss. 797, 174 So. 2d 377, 1965 Miss. LEXIS 1148 (Miss. 1965).

Where facts constituting contributory negligence are pleaded and proved, a request to instruct on contributory negligence is not essential to enable the jury to consider it in assessing damages. Herrington v. Hodges, 249 Miss. 131, 161 So. 2d 194, 1964 Miss. LEXIS 382 (Miss. 1964).

Instruction in action for alleged negligent installation of machine that jury should find for defendant if they found that the machine was not being handled properly by plaintiff, held erroneous. Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So. 2d 847, 1962 Miss. LEXIS 418 (Miss. 1962).

In an action for injuries sustained by a 16-year-old motorcyclist in an intersectional collision with a truck, the driver of which had, contrary to Code 1942, § 8189(a), and a city ordinance, “cut the corner” in making a left turn, court properly instructed that the truck driver was guilty of negligence, and that plaintiff could recover on account thereof, if such negligence was a proximate, contributing cause of the collision, which question was for the jury. City of Jackson v. Reed, 233 Miss. 304, 103 So. 2d 6, 1958 Miss. LEXIS 380 (Miss. 1958), overruled, City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

Instruction permitting jury to consider plaintiff’s contributory negligence, if any, in diminution of damages, where not pleaded, if error, held harmless where jury found plaintiff’s negligence was sole proximate cause of injury. White v. Weitz, 169 Miss. 102, 152 So. 484, 1934 Miss. LEXIS 9 (Miss. 1934).

RESEARCH REFERENCES

ALR.

Libel and slander: necessity of expert testimony to establish negligence of media defendant in defamation action by private individual. 37 A.L.R.4th 987.

Malpractice: Physician’s liability for injury or death resulting from side effects of drugs intentionally administered to or prescribed for patient. 47 A.L.R.5th 433.

Am. Jur.

22A Am. Jur. 2d, Death §§ 185- 216.

57A Am. Jur. 2d, Negligence § 66.

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 291, 292 (Instruction to jury defining comparative negligence).

18 Am. Jur. Pl & Pr Forms (Rev), Negligence, Forms 293, 294 (Instruction to jury as to comparative negligence of multiple defendants).

CJS.

65A C.J.S., Negligence §§ 958-993.

Law Reviews.

1979 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 887, December 1979.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L.J. 563, September 1982.

Practice References.

3 Am Law Prod Liab 3d, Contributory Negligence; Comparative Fault § 40:7.

§ 11-7-18. Limitation of remedies or disclaimer of liability as to certain implied warranties in sale to consumer of consumer goods prohibited.

Except as otherwise provided in Sections 75-2-314, 75-2-315 and 75-2-719, there shall be no limitation of remedies or disclaimer of liability as to any implied warranty of merchantability or fitness for a particular purpose in a sale to a consumer, as defined in Section 75-1-201(b)(11), of consumer goods, as defined in Section 75-9-102(a)(23). The provisions of this section may not be waived or varied by agreement.

HISTORY: Laws, 1976, ch. 385, § 3; Laws, 1998, ch. 513, § 5; Laws, 2010, ch. 506, § 1; Laws, 2014, ch. 312, § 5, eff from and after July 1, 2014.

Amendment Notes —

The 2010 amendment added “in a sale to a consumer. . . 75-9-102(a)(23)” in the first sentence; and added the last sentence.

The 2014 amendment deleted “75-2-315.1” following “Sections 75-2-314, 75-2-315” in the first sentence.

Cross References —

Similar statutory provision embodied in the Uniform Commercial Code, see §75-2-719.

JUDICIAL DECISIONS

1. In general.

2. Preservation for review.

1. In general.

Miss. Code Ann. §75-2-315.1 [repealed] is specifically excepted from the non-disclaimer statute, Miss. Code Ann. §11-7-18; this fact, together with a plain reading of Miss. Code Ann. §75-2-315.1 itself, makes abundantly clear that the Mississippi Legislature intends to permit the disclaimer of implied warranties in contracts for the sale of late-model used vehicles. Therefore, a buyer’s act of signing an “as is” agreement when purchasing a used vehicle was sufficient to waive these warranties. Murray v. Blackwell, 966 So. 2d 901, 2007 Miss. App. LEXIS 705 (Miss. Ct. App. 2007).

Provision of contract for extermination of pests which limited homeowner’s remedy for breach of express warranty to reinspection and refumigation in event of reinfestation, was enforceable under Mississippi law. Facts did not fall within protections afforded by §§11-7-18 or75-2-315.1, and litigation not involve claim for breach of implied warranties. Moreover even if defendant had attempted to limit implied warranties, plaintiff did not seek remedies based thereon. In addition, contract was one primarily for service, whereas prohibition on limitation of express warranties applies only to manufacturer of consumer goods, thus there was nothing in Mississippi statutes forbidding limitation of remedies for breach of express warranty provided in service contract. Smith v. Orkin Exterminating Co., 791 F. Supp. 1137, 1990 U.S. Dist. LEXIS 19936 (S.D. Miss. 1990), aff'd, 943 F.2d 1314, 1991 U.S. App. LEXIS 21363 (5th Cir. Miss. 1991).

Implied warranty of merchantability may not be waived or disclaimed in Mississippi as result of §§11-7-18 and75-2-719(4). Beck Enterprises, Inc. v. Hester, 512 So. 2d 672, 1987 Miss. LEXIS 2712 (Miss. 1987).

Heat pump manufacturer’s attempt in its express limited warranty to limit its liability as to any implied warranty was invalid. Fedders Corp. v. Boatright, 493 So. 2d 301, 1986 Miss. LEXIS 2478 (Miss. 1986).

Mississippi Code §11-7-18 does not create warranties; it saves warranties otherwise existing. Language in a copier-equipment lease disclaiming implied warranties of fitness for purpose and merchantability is rendered inoperative by Mississippi Code §11-7-18. J.L. Teel Co. v. Houston United Sales, Inc., 491 So. 2d 851, 1986 Miss. LEXIS 2460 (Miss. 1986).

2. Preservation for review.

Grant of summary judgment in favor of a window manufacturer and seller in the homeowners’ action against them concerning leaking windows was appropriate because the homeowners’ warranty claims were procedurally barred. The homeowners never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against the seller and that critical fact fundamentally distinguished the case from the warranty decisions relied upon by the homeowners. McKee v. Bowers Window & Door Co., 64 So.3d 926, 2011 Miss. LEXIS 218 (Miss. 2011).

RESEARCH REFERENCES

ALR.

Validity of disclaimer of warranty clauses in sale of new automobile. 54 A.L.R.3d 1217.

Application of comparative negligence in action based on gross negligence, recklessness, or the like. 10 A.L.R.4th 946.

Unconscionability, under UCC § 2-302 or § 2-719(3), of disclaimer of warranties or limitation or exclusion of damages in contract subject to UCC Article 2 (Sales). 38 A.L.R.4th 25.

Law Reviews.

Alldredge, Uniform Commercial Code – Should the U.C.C. furnish rules of decision in equipment leasing controversies? 7 Miss. C. L. Rev. 209, Spring, 1987.

§ 11-7-19. No assumption of risk by employee when the master is negligent; exception as to certain employees.

In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master. This rule shall not apply to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them.

HISTORY: Codes, Hemingway’s 1917, § 504; 1930, § 513; 1942, § 1456; Laws, 1914, ch. 156.

JUDICIAL DECISIONS

1. In general.

2. Assumption of risk; application.

3. Simple tool doctrine.

4. Conductors and engineers.

5. Knowledge of danger or defect, effect of.

6. Questions for jury.

7. Instructions.

1. In general.

Assumption of the risk is governed by the subjective standard of the plaintiff himself whereas contributory negligence is measured by the objective standard of a reasonable man. McMillan v. McMillan, 262 So. 2d 781, 1972 Miss. LEXIS 1325 (Miss. 1972).

The statute [Code 1942, § 1456] abolishes the assumption of risk only as between master and servant where the master is negligent, and does not abolish the assumption of risk by an independent contractor. United Roofing & Siding Co. v. Seefeld, 222 So. 2d 406, 1969 Miss. LEXIS 1533 (Miss. 1969).

Under Code 1942, § 1454, limiting application of contributory negligence, and under this section [Code 1942, § 1456], when negligence has once been shown on part of master followed by injury to servant, the only way master can entirely escape liability is to show his negligence was not a proximate cause of the injury or that the servant’s own negligence, or negligence of fellow-servant, was the sole proximate cause of the plaintiff’s injury. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

Where negligence of an employer is shown, this statute [Code 1942, § 1456] abolishes the defense of assumption of risk. Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202, 1946 U.S. App. LEXIS 2188 (5th Cir. Miss. 1946).

The common-law principles touching liability of master and servant are in force in Mississippi, with slight modifications. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Under this statute [Code 1942, § 1456], assumption of the risk is not a defense to suits by employees. Montgomery Ward & Co. v. Lindsey, 104 F.2d 882, 1939 U.S. App. LEXIS 4249 (5th Cir. Miss. 1939).

Under this provision an employee does not assume the risk resulting from his employer’s negligence. Southern Kraft Corp. v. Parnell, 65 F.2d 785, 1933 U.S. App. LEXIS 3157 (5th Cir. Miss. 1933).

Under this statute [Code 1942, § 1456], the doctrine of assumption of risk does not apply to risks of employment that are attributable in whole or in part to the employer’s negligence. Motor Wheel Corp. v. Dodson, 23 F.2d 282, 1927 U.S. App. LEXIS 3180 (5th Cir. Miss. 1927).

This section [Code 1942, § 1456] abolishes the doctrine of the assumption of risks. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

The common-law doctrine of assumption of risk is in full force in Mississippi, except as between master and servant. McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350, 176 So. 395, 1937 Miss. LEXIS 91 (Miss. 1937).

2. Assumption of risk; application.

Where an employee knew by past experience with an animal that the horse had thrown employee on two previous occasions, and knew of the dangerous character of the horse, and the employer required the employee to ride the horse in connection with his work and in compliance the employee was injured by the horse, in suit for injuries sustained by the employee, he is not barred of recovery on the ground that he assumed the risk. Grillis v. Patrick, 214 Miss. 747, 59 So. 2d 341, 1952 Miss. LEXIS 516 (Miss. 1952).

It was the duty of the foreman of an ax crew when handling a highly dangerous explosive to use reasonable care to see to it that one working under him both heard and understood his warnings in due time to reach a place of reasonable safety. Hercules Power Co. v. Palmer, 30 So. 2d 804 (Miss. 1947).

An employer who permitted a woman to lift heavy bundles without assistance when it knew that she was unequal to the task through its own physician who examined the woman after she complained of severe pain and who did not disclose her condition to her was negligent within the purview of this statute [Code 1942, § 1456]. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

A woman injured in the course of her employment which required that she lift heavy bundles did not assume the risk of that employment if she thought that she was physically fit, in spite of a previous hernia operation disclosed to her employer’s physician on preemployment examination, and her fitness was approved by that physician. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

Continuation at work by a woman injured while lifting heavy bundles after requesting assistance and being denied in words reasonably interpreted by a reasonable person as constituting a threat of discharge if she would not or could not lift the bundles without help did not constitute assumption of any risk of being strained. Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900, 1946 Miss. LEXIS 339 (Miss. 1946).

Although a servant assumes the ordinary risks inherent in his work, he does not assume the risk of his master’s negligence in not furnishing sufficient help to do the work which the servant is employed to do in concert with others. Herrin Motor Lines, Inc. v. Jarvis, 156 F.2d 276, 1946 U.S. App. LEXIS 2569 (5th Cir. Miss. 1946).

Master was not liable for injuries sustained by “off-bearer” on band-saw when a slab pinned him against the frame of the saw, where the danger out of which the injury arose grew out of the work itself and not because of any defect in the place of work or the master’s machine, even though the sawyer may have been negligent, since the “off-bearer” assumed the risk of the work. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Master is not responsible for negligence of a fellow servant unless the former has in truth appointed the latter to see after some one of the master’s absolute duties and the servant has failed therein. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Work around a band-saw mill is not so dangerous and complex as to require the making and enforcement of special rules by the master so as to render it reasonably safe. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

Servant assumes the ordinary risks of the work he has undertaken, including the risk that his fellow servant may not always be careful. Holliday v. Fulton Bank Mill, Inc., 142 F.2d 1006, 1944 U.S. App. LEXIS 3563 (5th Cir. Miss. 1944).

This section [Code 1942, § 1456] deals alone with risks caused by the negligence of the master, not risks incident to the employment. Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689, 1940 Miss. LEXIS 174 (Miss. 1940).

Injury sustained by laundry employee in charge of linen room allegedly from lifting twelve pound packages of linen to a shelf about five feet high was not the result of the employer’s negligence, but was the result of the assumed hazards of the employment as to which this section [Code 1942, § 1456] has no application, and the employer’s superintendent was justified in telling the employee, upon her complaint, that if she did not want to place the packages on such shelf, she could quit. Meridian Laundry Co. v. James, 190 Miss. 119, 195 So. 689, 1940 Miss. LEXIS 174 (Miss. 1940).

A direction by a section foreman to an employee to do the work in which the the injury occurred in which the foreman told him that he would lose his job if he did not do what he was told to do, relieved the employee from any assumption of the risk. Goss v. Kurn, 187 Miss. 679, 193 So. 783, 1940 Miss. LEXIS 240 (Miss. 1940).

Where an employee sustained injury while engaged with others in loading a box car with fertilizer, by reason of his loaded “buggy” being struck by that of another employee, such employee did not assume the risk, nor was the negligence of the fellow-servant chargeable to him, in view of the employer’s negligence in ordering the particular work to be done in an unsafe and negligent manner and in depriving the servant of the only means known to him to protect himself from injury, the employer having ordered the employees to discontinue their method of having unloaded “buggy” wait until loaded “buggy” was placed in the car. Jefferson v. Virginia-Carolina Chemical Co., 184 Miss. 23, 185 So. 230, 1938 Miss. LEXIS 318 (Miss. 1938).

Where there was evidence showing that the falling beam which had injured an employee had fallen the week before from the same hoist, such employee did not assume the risk incident to its continued operation, if the employer was negligent in requiring its use. Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63, 1938 Miss. LEXIS 293 (Miss. 1938).

That employee voluntarily assisted in lifting mat did not preclude recovery for employer’s negligence in not furnishing sufficient number of employees to move mat. Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800, 1938 Miss. LEXIS 113 (Miss. 1938).

Bridge builder’s employee, injured in fall from temporary bridge consisting of parallel stringers, did not, by using that undecked bridge, assume risk incident to its use, since servant assumes only dangers incident to service remaining after master has exercised reasonable care for servant’s safety and does not assume risk of master’s negligence in not furnishing reasonably safe place to work. Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, 1938 Miss. LEXIS 101 (Miss. 1938).

Risk assumed by servant is danger incident to service which remains after master has exercised reasonable care for safety of servants. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

Servant, who was ordered to catch and hold heavy machine which was being moved up embankment to ledge cut therein 25 or 30 feet above road level when block and tackle holding machine was released and machine slipped down, held not to have voluntarily assumed risk of injury therefrom, since he was then confronted with emergency with no time for thought or deliberation. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

Employee held not precluded from recovering for injuries sustained when he was caused to fall thirty feet from trestle because of defect in rail over which hand car was being operated, on ground of assumption of risk. Randolph Lumber Co. v. Minchew, 172 Miss. 535, 159 So. 849, 1935 Miss. LEXIS 135 (Miss. 1935).

One operating cotton gin did not assume risk increased by employer’s negligence. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

Employee at gasoline service station held not to have assumed risk of injury from stumbling over exposed air pipe. Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798, 1933 Miss. LEXIS 134 (Miss. 1933).

Employee held not to assume risk of injury resulting from overexertion, when foreman, on threat of discharge, ordered him to do work alone, for which assistance was needed, since injury resulted from foreman’s negligence. Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792, 1933 Miss. LEXIS 188 (Miss. 1933).

Employee, not under duty of inspecting machinery operated by him to see whether it is safe, does not assume risk of master’s negligence; employee, not under duty of inspecting machinery operated by him, does not assume risk of negligence of another employee, whose duty it is to inspect. Planters' Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365, 1929 Miss. LEXIS 117 (Miss. 1929).

3. Simple tool doctrine.

In action against employer for injuries sustained by employee while holding a short chisel which was being struck with heavy maul by helper, on ground that chisel, which foreman negligently required employee to use, was dangerous tool, employer was not entitled to directed verdict on ground that chisel and maul were simple tools and that employee assumed risk, since under statute servant does not assume risk where master is negligent. J. J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571, 1937 Miss. LEXIS 21 (Miss. 1937).

The master is not relieved of liability for injury from use of unsafe tools, though servant may have been as competent as master to determine suitability thereof for performance of required work, where servant is bound to obey order or subject himself to discipline for insubordination, since statute abolishes doctrine of assumption of risk when master is negligent. J. J. Newman Lumber Co. v. Cameron, 179 Miss. 217, 174 So. 571, 1937 Miss. LEXIS 21 (Miss. 1937).

An automobile is not such a simple piece of machinery as to free the master from liability, but is a machine which the master must keep in a reasonable condition of safety, and this duty is nondelegable. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 1933 Miss. LEXIS 330 (Miss. 1933).

The abolition of the doctrine of assumption of risk by employees does not affect the simple tool doctrine. Middleton v. National Box Co., 38 F.2d 89, 1930 U.S. Dist. LEXIS 1837 (D. Miss. 1930); Jones v. Southern United Ice Co., 167 Miss. 886, 150 So. 652, 1933 Miss. LEXIS 155 (Miss. 1933).

4. Conductors and engineers.

Engineer, directed against own judgment to clean locomotive with defective hose, held not to have assumed risk, statute not applying. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

Comparative knowledge doctrine is unavailing where servant’s injury resulted from master’s negligence. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

It is only where the conductor or engineer voluntarily operates an unsafe engine or cars that they assume the risk of the employment. Durr v. Homochitto Lumber Co., 137 Miss. 442, 102 So. 257, 1924 Miss. LEXIS 217 (Miss. 1924).

This section [Code 1942, § 1456] does not prevent an engineer while repairing an engine from claiming damages from injury caused by the fireman putting the engine in motion against the orders of the engineer. Homochitto Lumber Co. v. Albritton, 132 Miss. 405, 96 So. 403, 1923 Miss. LEXIS 58 (Miss. 1923).

5. Knowledge of danger or defect, effect of.

The doctrine of assumption of risk has been abolished only as between master and servant in certain places and where there is a relationship between a bailor and a bailee, the bailee cannot recover for injuries resulting from a defect of which the bailee knew and continued to use the defective machine after knowledge of defect. Runnels v. Dixie Drive-It-Yourself System Jackson Co., 220 Miss. 678, 71 So. 2d 453, 1954 Miss. LEXIS 483 (Miss. 1954).

It was the duty of an employer to instruct an inexperienced seventeen-year-old boy in the operation of a rip saw. Bonelli v. Flowers, 203 Miss. 843, 33 So. 2d 455, 1948 Miss. LEXIS 327 (Miss. 1948).

Sawmill company’s employee, operating gasoline motorcar on such company’s railroad with full knowledge of defective condition of horn and brakes, assumed risk of injury in resulting collision with school bus at highway crossing. Eastman, Gardiner & Co. v. Caldwell, 177 Miss. 861, 172 So. 126, 1937 Miss. LEXIS 157 (Miss. 1937).

Driver did not assume risk of driving truck with knowledge of defect in steering wheel, especially when his employer through its agent had promised to repair. Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546, 1936 Miss. LEXIS 213 (Miss. 1936).

Experienced sawmill employee knowing and appreciating danger incident to running saw assumed consequences resulting from his own reckless act when he voluntarily placed his hand in position to be thrown into saw. Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556, 1934 Miss. LEXIS 335 (Miss. 1934).

Foreman’s order to employee running saw to keep trash out of rollers and keep mill moving was not order not to stop mill to remove trash, making employer liable for injuries to employee when he placed his hand in position to be thrown into saw. Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556, 1934 Miss. LEXIS 335 (Miss. 1934).

Employee held not to have assumed risk of injury from cranking employer’s truck, where he relied upon employer’s promise to have truck repaired. Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 1933 Miss. LEXIS 330 (Miss. 1933).

6. Questions for jury.

Assumption of the risk is a jury question in all but the clearest cases. McMillan v. McMillan, 262 So. 2d 781, 1972 Miss. LEXIS 1325 (Miss. 1972).

Question of employer’s negligence is for jury where employee was working on an unsafe scaffold, the condition of which was called to the attention of the foreman. Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202, 1946 U.S. App. LEXIS 2188 (5th Cir. Miss. 1946).

In an action against an electric power company for the death of one of its linemen, electrocuted when he came in contact with a high voltage wire while engaged in work on a pole, whether the company was negligent or the lineman was negligent in failing to cut off the power or insulate the wire with a rubber blanket, proximately causing the injury, was for the jury to determine. Mississippi Power & Light Co. v. Merritt, 194 Miss. 794, 12 So. 2d 527, 1943 Miss. LEXIS 78 (Miss. 1943).

Where an employee was injured in consequence of lifting a bundle of steel rods while in an awkward posture which he had assumed by direction of his foreman, the question of the employer’s negligence, the risk of which under the statute [Code 1942, § 1456] the employee does not assume, is for the jury. Pittman v. Schultz, 125 F.2d 82, 1942 U.S. App. LEXIS 4317 (5th Cir. Miss. 1942).

In action by an employee against his employer for injuries sustained by reason of an explosion resulting from the use of gasoline in starting a fire for the purpose of heating grease guns and warming the employees in connection with the construction of a highway, questions with respect to the employer’s duty to furnish a reasonably safe place for its employees to work, reasonably safe instrumentalities to work with, and reasonably safe methods and rules under which to work were for the jury. Curry & Turner Const. Co. v. Bryan, 184 Miss. 44, 185 So. 256, 1939 Miss. LEXIS 18 (Miss. 1939).

Question of master’s liability for injuries to servant, received when servant obeyed order of foreman to catch and hold heavy machine being pulled to ledge cut in embankment 25 or 30 feet above level of roadway when block and tackle holding machine was released, held for jury. Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264, 1936 Miss. LEXIS 82 (Miss. 1936).

7. Instructions.

In an action against a contractor by his laborer for injuries sustained during the construction of a chicken house when the contractor backed a truck into the laborer, and instruction that if the jury should find that the plaintiff laborer voluntarily and knowingly placed himself in a position of danger, then the plaintiff assumed the risk of injury and could not recover, was properly refused because the doctrine of assumption of the risk is not in force as between a master and servant. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

Where evidence disclosed that injury resulted from negligence of fellow servants brought about by the direct order of the foreman, instructions eliminating entirely the question of whether the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and tending to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action, were erroneous. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

In action against truck owner for death of truck driver caused by flat tire, refusal of instruction that owner was not liable if driver was fully aware of defect in tire and of danger therefrom, was not error under statute abolishing doctrine of assumption of risk, where there was no evidence to warrant such instruction. Crosby Lumber & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 1938 Miss. LEXIS 97 (Miss. 1938).

RESEARCH REFERENCES

ALR.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew or mechanic. 13 A.L.R.2d 1137.

Failure to furnish assistance to employee as affecting liability for injury or death. 36 A.L.R.2d 8.

Duty and liability of employer to domestic servant for personal injury or death. 49 A.L.R.2d 317.

Necessity and manner of pleading assumption of risk as defense. 59 A.L.R.2d 239.

Failure to warn servant of disease or physical condition disclosed by medical examination. 69 A.L.R.2d 1213.

Applicability of state employers’ liability act to action for death caused by maritime tort within a state’s territorial waters. 71 A.L.R.2d 1304.

Hammer as simple tool within simple tool doctrine. 81 A.L.R.2d 965.

Distinction between assumption of risk and contributory negligence. 82 A.L.R.2d 1218.

State or local governmental unit’s liability for injury to private highway construction worker based on its own negligence. 29 A.L.R.4th 1188.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Am. Jur.

27 Am. Jur. 2d, Employment Relationship §§ 293- 322.

57B Am. Jur. 2d, Negligence §§ 716 et seq.

20 Am. Jur. Proof of Facts 2d 667, Contributory Negligence of Passenger Accepting Ride With Driver Suffering from Drowsiness, Illness, or Physical Defects.

40 Am. Jur. Proof of Facts 2d 603, Employer’s Tort Liability Under Dual Capacity Doctrine.

CJS.

30A C.J.S., Employers’ Liability for Injuries to Employees §§ 353–424.

65A C.J.S., Negligence §§ 386-390.

Law Reviews.

Spell, Stemming the tide of expanding liability; the coexistence of comparative negligence and assumption of risk. 8 Miss. C. L. Rev. 159, Spring, 1988.

Twyner, A Survey and Analysis of Comparative Fault in Mississippi. 52 Miss. L.J. 563, September 1982.

Montagnet, Assumption of Risk in Mississippi: Eliminating the Confusion While Retaining the Defense – Independent of Comparative Negligence Principles. Comment. 64 Miss. L.J. 753 1995.

§ 11-7-20. Privity unnecessary to maintain actions in negligence, strict liability or breach of warranty.

In all causes of action for personal injury or property damage or economic loss brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action.

HISTORY: Laws, 1976, ch. 385, § 5, eff from and after passage (approved April 27, 1976).

JUDICIAL DECISIONS

1. In general.

2. Flood zone determinations.

1. In general.

Because a plaintiff who is injured due to a breach of warranty may recover from each seller of the individual product which caused the injury (so long as the product was defective when each respective seller possessed it), and because privity is not a requirement for negligence, strict liability or breach of warranty, plaintiff’s negligence and breach of warranty claims against defendant manufacturer survived a motion to dismiss. 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 an action against a skilled nursing home facility on behalf of one of its patients for failure to protect him from a fire ant attack and for failure to provide adequate medical treatment after the attack, in which the plaintiff amended the complaint to add a pest control company on the basis that it owed a duty to the patient to discover and treat cracks and crevices, the lack of privity between the plaintiff and the pest control company did not preclude the possibility of its liability for negligence. Estate of Posey v. Centennial Health Care Props. Corp., 78 F. Supp. 2d 554, 1999 U.S. Dist. LEXIS 20206 (N.D. Miss. 1999), amended, 1999 U.S. Dist. LEXIS 20249 (N.D. Miss. Dec. 17, 1999).

In legal malpractice actions based on an attorney’s negligence in performing title work, there is no longer a requirement of an attorney-client relationship, but rather, the presence or absence of an attorney-client relationship is now merely one factor to be considered in determining the duty owed; an attorney performing title work will be liable to reasonably foreseeable persons who, for a proper business purpose, detrimentally rely on the attorney’s title work and suffer a loss proximately caused by the attorney’s negligence. Century 21 Deep South Properties, Ltd. v. Corson, 612 So. 2d 359, 1992 Miss. LEXIS 804 (Miss. 1992).

The purchasers of a home were not barred from bringing a negligence action against a pest control operator, even though a real estate agent engaged the operator’s services and the purchasers had no contract with the operator, since §11-7-20 removed the privity requirement for maintaining a negligence cause of action. However, the demise of the defense of privity removes only a formalistic barrier to recovery, and did not expose the pest control operator to liability to the whole world; the door opened by the demise of privity is limited by more realistic inquiries into foreseeability and detrimental reliance. Hosford v. McKissack, 589 So. 2d 108, 1991 Miss. LEXIS 599 (Miss. 1991), modified, 1991 Miss. LEXIS 864 (Miss. Dec. 11, 1991).

In an action against a construction company for breach of implied warranties and negligent construction of a building, the trial court’s granting of summary judgment based on lack of privity was improper; §11-7-20 abolished the requirement of privity for maintaining an implied warranty or negligence action. May v. Ralph L. Dickerson Constr. Corp., 560 So. 2d 729, 1990 Miss. LEXIS 202 (Miss. 1990).

Statutory rule in §11-7-20 removes privity requirement in all cases; however, loss of privity defense in no way removes any other defense that might be enjoyed were privity defense still applicable. Hicks v. Thomas, 516 So. 2d 1344, 1987 Miss. LEXIS 2949 (Miss. 1987).

Independent auditor is liable to reasonably foreseeable users of audit who request and receive financial statement from audited entity for proper business purpose, and who then detrimentally rely on financial statement, suffering loss proximately caused by auditor’s negligence; this rule protects third parties who request, receive, and rely on financial statement, while it also protects auditor from unlimited number of potential users who might otherwise read financial statement once published; auditor, however, remains free to limit dissemination of his opinion through separate agreement with audited entity. Touche Ross & Co. v. Commercial Union Ins. Co., 514 So. 2d 315, 1987 Miss. LEXIS 2705 (Miss. 1987).

Lack of privity between buyer and manufacturer of motor home is no bar to cause of action arising under UCC § 2-314, because privity requirement was statutorily abolished in Mississippi Code Annotated §11-7-20. Hargett v. Midas International Corp., 508 So. 2d 663, 1987 Miss. LEXIS 2550 (Miss. 1987).

Heat pump manufacturer’s attempt in its express limited warranty to limit its liability as to any implied warranty was invalid. Fedders Corp. v. Boatright, 493 So. 2d 301, 1986 Miss. LEXIS 2478 (Miss. 1986).

Since §11-7-20 removes privity as a requirement in all causes of action for personal injury, property damage, or economic loss brought on account of negligence, strict liability, or breach of warranty, it plainly carries the suggestion that the privity requirement has been removed in all cases, and thus, privity of contract between the builder and the purchaser of a permanent structure on real estate is no longer a prerequisite to a viable cause of action. Keyes v. Guy Bailey Homes, Inc., 439 So. 2d 670, 1983 Miss. LEXIS 2744 (Miss. 1983).

2. Flood zone determinations.

In a case in which a home owner sued a flood zone determination company because of an erroneous flood zone determination, the company had not shown its entitlement to summary judgment as was granted by the district court. While the home owner had not ordered the determination, privity was not the issue; the proper inquiry was whether it was reasonably foreseeable that she would receive and rely on the report and whether the company could have reasonably foreseen that the owner would rely on the flood determination, not whether she was a member of a limited group for whose benefit the determination was intended. Paul v. Landsafe Flood Determination, Inc., 550 F.3d 511, 2008 U.S. App. LEXIS 25297 (5th Cir. Miss. 2008).

RESEARCH REFERENCES

ALR.

Privity of contract as essential to recovery in negligence action against manufacturer or seller of product alleged to have caused injury. 74 A.L.R.2d 1111.

Privity of contract as essential to recovery in action based on theory other than negligence, against manufacturer or seller of product alleged to have caused injury. 75 A.L.R.2d 39.

Privity of contract as essential in action against remote manufacturer or distributor for defects in goods not causing injury to person or to other property. 16 A.L.R.3d 683.

Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property. 61 A.L.R.3d 922.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Admissibility and effect of evidence of professional ethics rules in legal malpractice action. 50 A.L.R.5th 301.

Third-party beneficiaries of warranties under UCC § 52-318. 50 A.L.R.5th 327.

Am. Jur.

17A Am. Jur. 2d, Contracts §§ 407, 408- 416 et seq.

40 Am. Jur. Proof of Facts 2d 603, Employer’s Tort Liability Under Dual Capacity Doctrine.

CJS.

17A C.J.S., Contracts §§ 836 et seq.

Law Reviews.

1982 Mississippi Supreme Court Review: Contract, Corporation and Commercial Law. 53 Miss L.J. 141, March 1983.

1983 Mississippi Supreme Court Review: Abolition of privity requirement in action against homebuilder. 54 Miss L.J. 99, March 1984.

1987 Mississippi Supreme Court Review, Corporate, contract and commercial law. 57 Miss. L.J. 467, August, 1987.

Practice References.

1 Am Law Prod Liab 3d, Privity of Contract §§ 13:2, 3.

2 Am Law Prod Liab 3d, Basic Elements of Strict Liability Case § 16:53.

2 Am Law Prod Liab 3d, Privity of Contract §§ 21:38, 40.

3 Am Law Prod Liab 3d, Defects in Real Estate § 38:23.

§§ 11-7-21 through 11-7-27. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-21. [Codes, 1857, ch. 61, art. 43; 1871, § 671; 1880, § 1511; 1892, § 664; 1906, § 722; Hemingway’s 1917, § 505; 1930, § 514; 1942, § 1457]

§11-7-23. [Codes, 1857, ch. 61, art. 44; 1871, § 672; 1880, § 1512; 1892, § 665; 1906, § 723; Hemingway’s 1917, § 506; 1930, § 515; 1942, § 1458]

§11-7-25. [Codes, Hutchinson’s 1848, ch. 58, art. 1 (47); 1857, ch. 61, art. 51; 1871, § 677; 1880, § 1515; 1892, § 666; 1906, § 724; Hemingway’s 1917, § 507; 1930, § 516; 1942, § 1459]

§11-7-27. [Codes, Hutchinson’s 1848, ch. 58, art. 1 (47); 1857, ch. 61, art. 50; 1871, § 678; 1880, § 1516; 1892, § 667; 1906, § 725; Hemingway’s 1917, § 508; 1930, § 517; 1942, § 1460]

Editor’s Notes —

Former §11-7-21 pertained to objections to nonjoinder or misjoinder of a plaintiff.

Former §11-7-23 pertained to objections to nonjoinder or misjoinder of a defendant.

Former §11-7-25 pertained to death of a party or coparty when there were two or more plaintiffs or defendants.

Former §11-7-27 provided that an action would not be abated by the death of a nominal plaintiff.

§ 11-7-29. Death of one defendant after judgment.

When judgment shall have been rendered against two or more persons, and any one or more of them shall die, such judgment shall survive against the representatives of the deceased parties and the survivor. A scire facias may issue against the survivor, jointly with the representatives of the deceased parties; and such judgment may be thereupon revived, and execution issued in like manner.

HISTORY: Codes, 1857, ch. 61, art. 52; 1871, § 680; 1880, § 1517; 1892, § 668; 1906, § 726; Hemingway’s 1917, § 509; 1930, § 518; 1942, § 1461.

Cross References —

Execution of judgment after death of party, see §§13-3-149,13-3-151.

Rule relative to substitution upon death of party, see Miss. R. Civ. P. 25.

JUDICIAL DECISIONS

1. In general.

Where at the time the chancellor rendered his opinion the defendant was dead and the cause was not revived against the duly acting executor, the final decree and subsequent proceedings amount to a nullity, and the Supreme Court, having no jurisdiction, dismissed the appeal without prejudice to any right of the appellee to revive the action. Owen v. Abraham, 233 Miss. 558, 102 So. 2d 372, 1958 Miss. LEXIS 417 (Miss. 1958).

As to jurisdiction over defendant shown by the pleadings, see J. J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11, 1922 Miss. LEXIS 105 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 359, 362.

CJS.

49 C.J.S., Judgments §§ 1130–1140.

§§ 11-7-31 through 11-7-39. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-31. [Codes, 1880, § 1521; 1892, § 669; 1906, § 727; Hemingway’s 1917, § 510; 1930, § 519; 1942, § 1462]

§11-7-33. [Codes, 1880, § 1522; 1892, § 670; 1906, § 728; Hemingway’s 1917, § 511; 1930, § 520; 1942, § 1463]

§11-7-35. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (89); 1857, ch. 61, art. 78; 1871, § 577; 1880, § 1536; 1892, § 671; 1906, § 729; Hemingway’s 1917, § 512; 1930, § 521; 1942, § 1464]

§11-7-36. [En Laws, 1974, ch. 315]

§11-7-37. [Codes, 1857, ch. 61, art. 87; 1871, § 578; 1880, § 1537; 1892, § 672; 1906, § 730; Hemingway’s 1917, § 513; 1930, § 522, 1942, § 1465]

§11-7-39. [Codes, 1857, ch. 61, art. 89; 1880, § 1539; 1892, § 673; 1906, § 731; Hemingway’s 1917, § 514; 1930, § 523; 1942, § 1466]

Editor’s Notes —

Former §11-7-31 provided that actions by or against certain public officers, trustees or commissioners would not abate on account of the change of the person occupying such position.

Former §11-7-33 provided that the manner of commencing an action in the circuit court was by filing a declaration.

Former §11-7-35 pertained to content of the declaration.

Former §11-7-36 authorized the pleading of different grounds for relief in a single declaration.

Former §11-7-37 pertained to a statement of venue in pleadings.

Former §11-7-39 specified how names of unknown defendants should be stated.

§ 11-7-41. Defendants may be sued by initials in certain cases.

In actions on written instruments, the defendant may be sued by the initial letters or contraction of the Christian name, used by him in his signature to such writing.

HISTORY: Codes, 1857, ch. 61, art. 89; 1871, § 579; 1880, § 1539; 1892, § 674; 1906, § 732; Hemingway’s 1917, § 515; 1930, § 524; 1942, § 1467.

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parties §§ 13- 17, 19- 21.

CJS.

67A C.J.S., Parties § 208.

§ 11-7-43. Averment that partners contracted by a name affixed to a writing is sufficient.

In actions against one or more of several partners, it shall be sufficient to declare that he or they made the contract or executed the writing sued on by the co-partnership name, or other signature affixed to such writing.

HISTORY: Codes, 1857, ch. 61, art. 89; 1880, § 1539; 1892, § 675; 1906, § 733; Hemingway’s 1917, § 516; 1930, § 525; 1942, § 1468.

JUDICIAL DECISIONS

1. In general.

In action on notes brought against defendants as copartners, allegation that defendants were copartners by virtue of certain conveyance was unnecessary; it being sufficient to allege that defendants were copartners and executed notes by partnership name. Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407, 1934 Miss. LEXIS 385 (Miss. 1934).

The names of persons composing the firm should be set out in the pleadings. Ivy v. Evans, 132 Miss. 652, 97 So. 194, 1923 Miss. LEXIS 98 (Miss. 1923).

Partners cannot sue or be sued by their partnership name. Blackwell v. John Reid & Co., 41 Miss. 102, 1866 Miss. LEXIS 19 (Miss. 1866).

RESEARCH REFERENCES

Am. Jur.

59 Am. Jur. 2d, Parties §§ 55- 57.

59A Am. Jur. 2d, Partnership §§ 173 et seq.

CJS.

67A C.J.S., Parties §§ 209, 213.

§§ 11-7-45 through 11-7-65. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-45. [Codes, Hutchinson’s 1848, ch. 59, art. 1 (60); 1857, ch. 61, art. 90; 1871, § 580; 1880, § 1540; 1892, § 676; 1906, § 734; Hemingway’s 1917, § 517; 1930, § 526; 1942, § 1469]

§11-7-47. [Codes, 1848, ch. 61, art. 1 (55); 1857, ch. 61, art. 91; 1871, § 581; 1880, § 1541; 1892, § 677; 1906, § 735; Hemingway’s 1917, § 518; 1930, § 527; 1942, § 1470]

§11-7-49. [Codes, 1857, ch. 61, art. 79; 1871, § 584; 1880, § 1542; 1892, § 678; 1906, § 736; Hemingway’s 1917, § 519; 1930, § 528; 1942, § 1471]

§11-7-51. [Codes, 1857, ch. 61, art. 80; 1871, § 583; 1880, § 1543; 1892, § 679; 1906, § 737; Hemingway’s 1917, § 520; 1930, § 529; 1942, § 1472]

§11-7-53. [Codes, 1857, ch. 61, art. 85; 1871, § 589; 1880, § 1544; 1892, § 680; 1906, § 738; Hemingway’s 1917, § 521; 1930, § 530; 1942, § 1473]

§11-7-55. [Codes, 1942, § 1474; Laws, 1942, ch. 304]

§11-7-57. [Codes, Hutchinson’s 1848, ch. 61, art. 93; 1871, § 592; 1880, § 1546; 1892, § 681; 1906, § 739; Hemingway’s 1917, § 522; 1930, § 531; 1942, § 1475]

§11-7-59. [Codes, 1942, § 1475.5; Laws, 1948, ch. 230, §§ 1-6; Laws, 1950, ch. 356, §§ 1, 2 (¶ 2) ]

§11-7-61. [Codes, 1857, ch. 61, art. 96; 1871, § 598; 1880, § 1549; 1892, § 685; 1906, § 743; Hemingway’s 1917, § 526; 1930, § 535; 1942, § 1479]

§11-7-63. [Codes, 1857, ch. 61, art. 98; 1871, § 601; 1880, § 1551; 1892, § 687; 1906, § 745; Hemingway’s 1917, § 528; 1930, § 537; 1942, § 1481]

§11-7-65. [Codes, Hutchinson’s 1848, ch. 59, art. 61; 1857, ch. 61, art. 101; 1871, § 604; 1880, § 1554; 1892, § 688; 1906, § 746; Hemingway’s 1917, § 529; 1930, § 538; 1942, § 1482]

Editor’s Notes —

Former §11-7-45 required that a copy of the account or writing upon which the action is founded be filed with the declaration.

Former §11-7-47 required that a copy of any writing of which proffer was to be made be annexed to or filed with the pleading.

Former §11-7-49 required that in all actions on bonds with a condition, plaintiff state the condition and assign breaches thereof in his declaration.

Former §11-7-51 required that in actions of trespass to land, the place of the alleged trespass be described.

Former §11-7-53 provided that in actions for libel or slander, the plaintiff need only aver the defamatory sense of words or matter complained of, and that in certain cases, the declaration was sufficient.

Former §11-7-55 pertained to amendment of declarations.

Former §11-7-57 made all provisions in reference to declarations applicable to pleas of defendants and to all subsequent pleadings.

Former §11-7-59 abolished pleas in the circuit court, and provided that defenses be set up by way of answer.

Former §11-7-61 pertained to giving evidence of mitigating circumstances notwithstanding a plea of not guilty in certain actions.

Former §11-7-63 pertained to pleading and setting off against demand by plaintiff debts or demands defendant had against plaintiff.

Former §11-7-65 required defendant to file with his plea a statement of items or writings to be set off.

§ 11-7-67. Balance of mutual dealings on death of one party.

Where there shall have been mutual dealings between two or more persons, and one or more of them shall die before an adjustment of such dealings, the lawful demands of such parties against each other shall be a good payment, or setoff, to the amount thereof, notwithstanding the estate of one or more of such deceased persons shall be insolvent; and only the balance due shall be the debt.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 10; 1857, ch. 61, art. 99; 1871, § 602; 1880, § 1552; 1892, § 689; 1906, § 747; Hemingway’s 1917, § 530; 1930, § 539; 1942, § 1483.

Cross References —

Rules providing that all claims be presented as claims, counterclaims, or cross-claims, see Miss. R. Civ. P. 8, 13.

Rule relative to substitution upon death of party, see Miss. R. Civ. P. 25.

JUDICIAL DECISIONS

1. In general.

The sale of a dairy farm and the subsequent shooting of the purchaser by the seller do not constitute mutual dealings as contemplated by this section [Code 1942, § 1483], for an unliquidated tort claim cannot be lawfully set off against certain promissory notes executed by the purchasers of the farm payable to the sellers and evidencing a portion of the purchase price. Weaver v. Mason, 228 So. 2d 591, 1969 Miss. LEXIS 1395 (Miss. 1969).

In suit to set aside decree approving executor’s account, balance actually due executor as an individual under personal account with testatrix should be ascertained pursuant to rule that entries in books of account are mere evidence of facts, and to statute requiring balance resulting from mutual dealings to be ascertained on death of one party. Howell v. Ott, 182 Miss. 252, 180 So. 52, 181 So. 740, 1938 Miss. LEXIS 139 (Miss. 1938), limited, Kent v. McCaslin, 238 Miss. 129, 117 So. 2d 804, 1960 Miss. LEXIS 387 (Miss. 1960).

An account distinct from mutual dealings with the parties must be probated against the estate of one dying. Cohn v. Carter, 92 Miss. 627, 46 So. 60, 1908 Miss. LEXIS 202 (Miss. 1908).

A debt due by a deceased person cannot be set off against a note given to the administrator for a part of the property sold by him. Mellen v. Boarman, 21 Miss. 100, 1849 Miss. LEXIS 146 (Miss. 1849); Bales v. Hyman, 57 Miss. 330, 1879 Miss. LEXIS 83 (Miss. 1879).

§§ 11-7-69 and 11-7-71. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-69. [Codes, 1942, § 1483.5; Laws, 1952, ch. 249, §§ 1, 2]

§11-7-71. [Codes, Hutchinson’s 1848, ch. 59, art. 58; 1857, ch. 61, art. 100; 1871, § 603; 1880, § 1553; 1892, § 690; 1906, § 748; Hemingway’s 1917, § 531; 1930, § 540; 1942, § 1484]

Editor’s Notes —

Former §11-7-69 pertained to the pleading of counterclaims.

Former §11-7-71 authorized the pleading of payments made at or after maturity.

§ 11-7-73. Disclaiming title and tendering of amends in action for trespass.

In actions in justice court for trespass on land, the defendant may plead that he disclaims any title or claim to the land in question, and that the trespass was involuntary or by negligence, and that he tendered or offered sufficient amends therefor before suit brought, and he shall thereupon bring the amount so tendered into court; and unless the plaintiff in such action shall recover more damage than the amount so tendered, he shall be adjudged to pay the costs of the action.

HISTORY: Codes, 1857, ch. 61, art. 104; 1871, § 607; 1880, § 1555; 1892, § 691; 1906, § 749; Hemingway’s 1917, § 532; 1930, § 541; 1942, § 1485; Laws, 1991, ch. 573, § 20, eff from and after July 1, 1991.

Cross References —

Acts constituting criminal trespass, generally, see §97-17-79 et seq.

Rule governing the forms of denial and defenses, see Miss. R. Civ. P. 8.

RESEARCH REFERENCES

Am. Jur.

75 Am. Jur. 2d, Trespass §§ 48, 51.

CJS.

87 C.J.S., Trespass §§ 80-82.

§§ 11-7-75 through 11-7-105. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-75. [Codes, 1857, ch. 61, art. 106; 1871, § 609; 1880, § 1557; 1892, § 693; 1906, § 751; Hemingways’s 1917, § 534; 1930, § 543; 1942, § 1487]

§11-7-77. [Codes, Hutchinson’s 1848, ch. 58, art. 1 (72); 1857, ch. 61, art. 107; 1871, § 610; 1880, § 1559; 1892, § 695; 1906, § 753; Hemingway’s 1917, § 536; 1930, § 545; 1942, § 1489]

§11-7-79. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (64); 1857, ch. 61, art. 108; 1871, § 611; 1880, § 1560; 1892, § 696; 1906, § 754; Hemingway’s 1917, § 537; 1930, § 546; 1942, § 1490]

§11-7-81. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (65); 1857, ch. 61, art. 109; 1871, § 612; 1880, § 1561; 1892, § 697; 1906, § 755; Hemingway’s 1917, § 538; 1930, § 547; 1942, § 1491]

§11-7-83. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (66); 1857, ch. 61, art. 110; 1871, § 613; 1880, § 1562; 1892, § 698; 1906, § 756; Hemingway’s 1917, § 539; 1930, § 548; 1942, § 1492]

§11-7-85. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (65); 1857, ch. 61, art. 111; 1871, § 614; 1880, § 1563; 1892, § 699; 1906, § 757; Hemingway’s 1917, § 540; 1930, § 549; 1942, § 1493]

§11-7-87. [Codes, 1857, ch. 61, art. 112; 1871, § 615; 1880, § 1564; 1892, § 700; 1906, § 758; Hemingway’s 1917, § 541; 1930, § 550; 1942, § 1494]

§11-7-89. [Codes, 1857, ch. 61, art. 114; 1871, § 616; 1880, § 1565; 1892, § 701; 1906, § 759; Hemingway’s 1917, § 542; 1930, § 551; 1942, § 1495]

§11-7-91. [Codes, 1857, ch. 61, art. 115; 1871, § 617; 1880, § 1566; 1892, § 702; 1906, § 760; Hemingway’s 1917, § 543; 1930, § 552; 1942, § 1496]

§11-7-93. [Codes, 1857, ch. 61, art. 116; 1880, § 1567; 1892, § 703; 1906, § 761; Hemingway’s 1917, § 544; 1930, § 553; 1942, § 1497]

§11-7-95. [Codes, 1857, ch. 61, art. 117; 1871, § 618; 1880, § 1568; 1892, § 704; 1906, § 762; Hemingway’s 1917, § 545; 1930, § 554; 1942, § 1498]

§11-7-97. [Codes, 1892, § 705; 1906, § 763; Hemingway’s 1917, § 546; 1930, § 555; 1942, § 1499]

§11-7-99. [Codes, 1857, ch. 61, art. 119; 1871, § 620; 1880, § 1569; 1892, § 706; 1906, § 764; Hemingway’s 1917, § 547; 1930, § 556; 1942, § 1500]

§11-7-101. [Codes, 1857, ch. 61, art. 120; 1871, § 593; 1880, § 1570; 1892, § 707; 1906, § 765; Hemingway’s 1917, § 548; 1930, § 557; 1942, § 1501]

§11-7-103. [Codes, 1857, ch. 61, art. 1871, § 595; 1880, § 1571; 1892, § 708; 1906, § 766; Hemingway’s 1917, § 549; 1930, § 558; 1942, § 1502]

§11-7-105. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (79); 1857, ch. 61, art. 83; 1871, § 587; 1880, § 1572; 1892, § 709; 1906, § 767; Hemingway’s 1917, § 550; 1930, § 559; 1942, § 1503]

Editor’s Notes —

Former §11-7-75 provided that whenever any pleading concluded to the county, issue would be considered joined thereon, unless demurrer thereto was filed.

Former §11-7-77 pertained to the payment of costs when pleading was held to be insufficient.

Former §11-7-79 pertained to assignment of causes when demurrer interposed.

Former §11-7-81 pertained to judgment on overruling a demurrer to a declaration.

Former §11-7-83 specified the judgment when a demurrer to a plea matter of the defendant is sustained.

Former §11-7-85 authorized the court to refuse a frivolous demurrer.

Former §11-7-87 stated that a joinder in demurrer was not required in any case.

Former §11-7-89 stated that express color and special traverse were not required in any pleading.

Former §11-7-91 required that a pleading be signed by the party or his attorney.

Former §11-7-93 abolished special demurrers.

Former §11-7-95 specified how the court could deal with obscure, irrelevant or redundant matters in pleadings.

Former §11-7-97 pertained to bills of particulars.

Former §11-7-99 authorized the omission of allegations that were not material or traversable.

Former §11-7-101 provided that formal defense was not required in an answer.

Former §11-7-103 provided that is was not necessary to use allegations of actionem non and of precludi non.

Former §11-7-105 stated that if a private statute was pleaded, it was sufficient to refer to it by its title and the date of its passage.

§ 11-7-107. How private way may be pleaded.

A right by virtue of a private way may be pleaded generally in the same manner as if pleading a public way.

HISTORY: Codes, 1857, ch. 61, art. 84; 1871, § 588; 1880, § 1573; 1892, § 710; 1906, § 768; Hemingway’s 1917, § 551; 1930, § 560; 1942, § 1504.

Cross References —

Method of establishing private way, see §65-7-201.

§§ 11-7-109 through 11-7-129. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-109. [Codes, 1857, ch. 61, art. 81; 1871, § 585; 1880, § 1574; 1892, § 711; 1906, § 769; Hemingway’s 1917, § 552; 1930, § 561; 1942, § 1505]

§11-7-111. [Codes, 1857, ch. 61, art. 82; 1871, § 586; 1880, § 1575; 1892, § 712; 1906, § 770; Hemingway’s 1917, § 553; 1930, § 562; 1942, § 1506]

§11-7-113. [Codes, 1857, ch. 61, art. 178; 1871, § 660; 1880, § 1577; 1892, § 713; 1906, § 771; Hemingway’s 1917, § 554; 1930, § 563; 1942, § 1507]

§11-7-115. [Codes, Hutchinson’s 1848, ch. 59, art. 1(91); 1857, ch. 61, art. 180; 1871, § 621; 1880, § 1581; 1892, § 717; 1906, § 775; Hemingway’s 1917, § 558; 1930, § 567; 1942, § 1511]

§11-7-117. [Codes, 1857, ch. 61, art. 182; 1871, § 623; 1880, § 1582; 1892, § 718; 1906, § 776; Hemingway’s 1917, § 559; 1930, § 568; 1942, § 1512]

§11-7-119. [Codes, Hutchinson’s 1848, ch. 59, art. 1 (91); 1857, ch. 61, art. 183; 1871, § 624; 1880, § 1583; 1892, § 719; 1906, § 777; Hemingway’s 1917, § 560; 1930, § 569; 1942, § 1513]

§11-7-121. [Codes, 1857, ch. 61, art. 150; 1871, § 631; 1880, § 1703; 1892, § 722; 1906, § 783; Hemingway’s 1917, § 566; 1930, § 575; 1942, § 1519; Laws, 1904, ch. 142; Laws, 1948, ch. 229; Laws, 1962, ch. 297]

§11-7-123. [Codes, 1857, ch. 61, art. 151; 1871, § 633; 1880, § 1704; 1892, § 723; 1906, § 784; Hemingway’s 1917, § 567; 1930, § 576; 1942, § 1520]

§11-7-125. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (77); 1857, ch. 61, art. 159; 1871, § 641; 1880, § 1721; 1892, § 740; 1906, § 802; Hemingway’s 1917, § 590; 1930, § 594; 1942, § 1538]

§11-7-127. [Codes, 1857, ch. 61, art. 160; 1871, § 642; 1880, § 1722; § 1892, § 741; 1906, § 803; Hemingway’s 1917, § 591; 1930, § 595; 1942, § 1539]

§11-7-129. [Codes, 1857, ch. 61, art. 167; 1871, § 649; 1880, § 1705; 1892, § 724; 1906, § 785; Hemingway’s 1917, § 568; 1930, § 577; 1942, § 1521]

Editor’s Notes —

Former §11-7-109 specified how to plead the performance of conditions precedent.

Former §11-7-111 specified how to plead a judgment or other determination of a court.

Former §11-7-113 pertained to defendant’s offer and payment of compensation or amends before trial.

Former §11-7-115 authorized the court to allow amendments to be made to pleadings at any time before verdict.

Former §11-7-117 specified what variance between allegations and proof were deemed material.

Former §11-7-119 pertained to the effect of one faulty count out of several counts.

Former §11-7-121 pertained to when a defendant should plead, when pleas would be tried, and judgments by default.

Former §11-7-123 pertained to affidavits for continuance.

Former §11-7-125 provided that every plaintiff desiring to suffer a nonsuit on a trial would be barred therefrom unless he did so before the jury retired to consider the verdict.

Former §11-7-127 pertained to the plaintiff suffering a nonsuit before the clerk in vacation.

Former §11-7-129 authorized the parties to waive trial by jury to an issue of fact in actions on contract.

§ 11-7-131. Cases may be taken under judicial advisement.

The judge may take a case under advisement until the next term. If an issue of fact be involved, before taking it under advisement, he shall, on notice to each party, cause the evidence on both sides to be reduced to writing and signed by him. At the next term, the judge shall deliver his opinion in writing, and the evidence and opinion shall be a part of the record without a bill of exceptions. Either party prosecuting an appeal may avail himself of all questions arising upon the record.

HISTORY: Codes, Hutchinson’s 1848, ch. 53, art. 6 (13); 1857, ch. 61, art. 10; 1871, § 534; 1880, § 1707; 1892, § 725; 1906, § 786; Hemingway’s 1917, § 569; 1930, § 578; 1942, § 1522.

Cross References —

Chancery proceedings in vacation, see §9-5-105.

JUDICIAL DECISIONS

1. In general.

There has been a vast expansion by statutory enactment of the times within which circuit judges are lawfully empowered to conduct court affairs. Although the Mississippi Constitution contemplates circuit courts being held at fixed, stated terms provided by statute, and the circuit courts of this State have had fixed terms, the legislature by various enactments-§§11-1-7,11-7-131 to 133,11-7-121,11-1-16, and9-7-3-has granted circuit courts wide latitude in taking official actions in vacation. [11-1-7,11-7-133 and11-7-121 were repealed] Griffin v. State, 565 So. 2d 545, 1990 Miss. LEXIS 285 (Miss. 1990), limited, Presley v. State, 792 So. 2d 950, 2001 Miss. LEXIS 153 (Miss. 2001).

Where a circuit judge took under advisement the plaintiffs’ motion for leave to amend their declaration and it was not overruled until the next succeeding term of court had passed, the plaintiffs’ right to appeal from the court’s order to the Supreme Court remained, for until the order of dismissal was entered no statute of limitations ran against the parties’ right to appeal under Code 1942, § 753. McGill v. City of Laurel, 252 Miss. 765, 168 So. 2d 50 (1964).

Where a motion to set aside a judgment for a certain sum is continued and overruled at a subsequent term but the judgment allowed to stand for a less sum, a judgment recovered and enrolled during the interval is prior in lien. Crane v. Richardson, 73 Miss. 254, 18 So. 542, 1895 Miss. LEXIS 80 (Miss. 1895).

Motion for a new trial cannot be kept under advisement longer than the term next succeeding. The section [Code 1942, § 1522] does not apply to motions for new trials as to taking under advisement. Scarborough v. Smith, 52 Miss. 517, 1876 Miss. LEXIS 249 (Miss. 1876); Ross v. Garey, 8 Miss. 47, 1843 Miss. LEXIS 56 (Miss. 1843); Luther v. Borden, 48 U.S. 1, 12 L. Ed. 581, 1849 U.S. LEXIS 337 (U.S. 1849); Kane v. Burrus, 10 Miss. 313, 1844 Miss. LEXIS 149 (Miss. 1844); McClure v. Houston, 18 Miss. 392, 1848 Miss. LEXIS 98 (Miss. 1848); Coopwood v. Prewett, 30 Miss. 206, 1855 Miss. LEXIS 87 (Miss. 1855); Hudson v. Strickland, 49 Miss. 591, 1873 Miss. LEXIS 149 (Miss. 1873).

§ 11-7-133. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hemingway’s 1917, § 570; 1930, § 579; 1942, § 1523; Laws, 1912, ch. 158]

Editor’s Notes —

Former §11-7-133 authorized circuit court judges to decide cases in vacation, and, with consent of the parties, try cases in vacation.

§ 11-7-135. Exceptions in trials by court — either party may appeal.

In cases tried by the court, either party may take bills of exception, and have an appeal, as in case of trial by jury.

HISTORY: Codes, 1857, ch. 61, art. 169; 1871, § 651; 1880, § 1706; 1892, § 726; 1906, § 787; Hemingway’s 1917, § 571; 1930, § 580; 1942, § 1524.

JUDICIAL DECISIONS

1. In general.

Where a minor and his parents were represented by counsel in a youth court, and counsel could have prepared and sent up on appeal a bill of exceptions reflecting proceedings or facts which transpired in that court but did not do so, the Supreme Court in deciding the appeal could consider only such record as was properly before it. In re Simpson, 199 So. 2d 833, 1967 Miss. LEXIS 1315 (Miss. 1967).

In such case a motion for a new trial is not contemplated by the statute; the bill of exceptions must be taken to the judgment. Quin v. Myles, 59 Miss. 375, 1882 Miss. LEXIS 120 (Miss. 1882).

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error § 315.

§§ 11-7-137 through 11-7-145. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-137. [Codes, 1857, ch. 61, art. 170; 1871, § 652; 1880, § 1723; 1892, § 742; 1906, § 804; Hemingway’s 1917, § 592; 1930, § 596; 1942, § 1540]

§11-7-139. [Codes, 1857, ch. 61, art. 171; 1871, § 653; 1880, § 1724; 1892, § 743; 1906, § 805; Hemingway’s 1917, § 593; 1930, § 597; 1942, § 1541]

§11-7-141. [Codes, 1857, ch. 61, art. 172; 1871, § 654; 1880, § 1725; 1892, § 744; 1906, § 806; Hemingway’s 1917, § 594; 1930, § 598; 1942, § 1542]

§11-7-143. [Codes, 1857, ch. 61, art. 173; 1871, § 655; 1880, § 1726; 1892, § 745; 1906, § 807; Hemingway’s 1917, § 595; 1930, § 599; 1942, § 1543]

§11-7-145. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (142); 1857, ch. 61, art. 152; 1871, § 634; 1880, § 1708; 1892, § 727; 1906, § 788; Hemingway’s 1917, § 572; 1930, § 581; 1942, § 1525; Am Laws, 1984, ch. 415, § 1]

Editor’s Notes —

Former §11-7-137 authorized the referral of all issues in an action to referees.

Former §11-7-139 authorized the referral to referees of all cases in which matters of account were in controversy.

Former §11-7-141 authorized either party to file exceptions to the report of a referee.

Former §11-7-143 specified the powers of the referee.

Former §11-7-145 pertained to peremptory challenges in civil suits.

§ 11-7-147. Opening statements allowed.

Before the introduction of the evidence, the plaintiff may briefly state his case orally to the jury, and the evidence by which he expects to sustain it. Then the defendant may briefly state his case, and the evidence by which he expects to support it.

HISTORY: Codes, 1892, § 728; 1906, § 789; Hemingway’s 1917, § 573; 1930, § 582; 1942, § 1526.

Cross References —

Number of counsel to be heard in criminal case, see §99-17-11.

JUDICIAL DECISIONS

1. In general.

On the inmate’s petition for post-conviction relief, the court held that counsel was not ineffective for failing to give an opening statement because opening statements were not mandatory under Miss. Code Ann. §11-7-147. Spicer v. State, 973 So. 2d 184, 2007 Miss. LEXIS 619 (Miss. 2007).

After the district attorney stated that the prosecution did not desire to make an opening statement, the trial court did not err in postponing defendant’s opening statement until immediately before he presented his evidence, where there was no showing of manifest abuse of discretion or that substantial prejudice resulted. Black v. State, 308 So. 2d 79, 1975 Miss. LEXIS 1831 (Miss. 1975).

Inasmuch as testimony of witness as to earlier occasion when television antenna fell on power lines causing damage was admissible, plaintiff’s attorney in a wrongful death action resulting from electrocution had a right to mention it in his preliminary statement to the jury. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

RESEARCH REFERENCES

ALR.

Propriety of trial court order limiting time for opening or closing argument in civil case-state cases. 71 A.L.R.4th 130.

Propriety of trial court order limiting time for opening or closing argument in criminal case-state cases. 71 A.L.R.4th 200.

Am. Jur.

75A Am. Jur. 2d, Trial §§ 429-439.

CJS.

88 C.J.S., Trial §§ 263-275.

§ 11-7-149. Court officers not to converse with jurors.

The sheriff, bailiff, or other officer, shall not be in the room or converse with a juror after the jury has retired from the bar, save by order of the court. A violation of this section shall subject the offender to a fine of fifty dollars and one week’s imprisonment for a contempt.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (137); 1857, ch. 61, art. 156; 1871, § 638; 1880, § 1711; 1892, § 729; 1906, § 790; Hemingway’s 1917, § 574; 1930, § 583; 1942, § 1527.

Cross References —

Control of jurors by court, see §13-5-83.

View of place by jury, see §13-5-91.

Another section derived from same 1942 code section, see §97-9-57.

Provision that jurors must avoid all contacts with lawyers, litigants, witnesses, or spectators, see Uniform Circuit Court Rule 3.10.

JUDICIAL DECISIONS

1. In general.

In prosecution for manslaughter when jury during deliberations asked the bailiff what the penalty was for manslaughter and the bailiff replied that penalty was from one month to ten years, and the jury subsequently found defendant guilty of manslaughter and recommended that accused be given mercy of the court, such communication affected the integrity of the verdict and required reversal of conviction. Horn v. State, 216 Miss. 439, 62 So. 2d 560, 1953 Miss. LEXIS 654 (Miss. 1953).

RESEARCH REFERENCES

ALR.

Prejudicial effect, in criminal case, of communication between court officials or attendants and jurors. 41 A.L.R.2d 227.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors. 41 A.L.R.2d 288.

Am. Jur.

75B Am. Jur. 2d, Trial § 1124.

24 Am. Jur. Proof of Facts 2d 633, Jury Misconduct Warranting New Trial.

CJS.

89 C.J.S., Trial §§ 941–948.

§ 11-7-151. Trial — jury may take evidence to jury room.

All papers read in evidence on the trial of any cause may be carried from the bar by the jury.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (80); 1857, ch. 61, art. 157; 1871, § 639; 1880, § 1712; 1892, § 730; 1906, § 791; Hemingway’s 1917, § 575; 1930, § 584; 1942, § 1528.

Cross References —

Another section derived from same 1942 code section, see §99-17-37.

Provision to effect that pleadings shall not be carried into jury room, except insofar as pleading or portion thereof has been admitted in evidence, see Miss. R. Civ. P. 8.

JUDICIAL DECISIONS

1. In general.

Although it is a better practice that exhibits be withheld from the jury room until the jury retires for a verdict, there was no prejudice or error in permitting the jury to carry the exhibits into the jury room following the plaintiff’s case in chief and prior to submitting it for a verdict where the exhibits included those submitted by both the plaintiff and the defendant. Huey v. Port Gibson Bank, 390 So. 2d 1005, 1980 Miss. LEXIS 2161 (Miss. 1980).

Where map was paper read in evidence in arson prosecution, permitting jury to take map to jury room when they retire to consider verdict held not error. Whittaker v. State, 169 Miss. 517, 142 So. 474, 1932 Miss. LEXIS 4 (Miss. 1932).

The court should not cause to be withheld from the jury any papers read in evidence on the trial. Lipscomb v. State, 75 Miss. 559, 23 So. 210, 1897 Miss. LEXIS 144 (Miss. 1897).

RESEARCH REFERENCES

ALR.

Prejudicial effect of jury’s procurement or use of book during deliberations in civil cases. 31 A.L.R.4th 623.

Am. Jur.

75B Am. Jur. 2d, Trial §§ 1208, et seq.

CJS.

89 C.J.S., Trial §§ 965-971.

§ 11-7-153. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 61, art. 1 (80); 1857, ch. 61, art. 158; 1871, § 640; 1880, § 1713; 1892, § 731; 1906, § 792; Hemingway’s 1917, § 576; 1930, § 585; 1942, § 1529]

Editor’s Notes —

Former §11-7-153 provided that interpreters could be sworn truly to interpret, when necessary.

§ 11-7-155. Judge not to sum up or comment on testimony or charge jury.

The judge in any civil cause shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (144); 1857, ch. 61, art. 161; 1871, § 643; 1880, § 1714; 1892, § 732; 1906, § 793; Hemingway’s 1917, § 577; 1930, § 586; 1942, § 1530; Laws, 1991, ch. 573, § 21, eff from and after July 1, 1991.

Cross References —

Instructions in chancery court, see §11-5-3.

Instructions in county court, see §11-9-1.

Instruction on number of jurors to agree on verdict in civil case, see §13-5-93.

Another section derived from same 1942 code section, see §99-17-35.

Jury instructions in criminal cases, see §99-17-35.

Procedural provisions with respect to filing of requested instructions, see URCCC 3.07 and MRCrP 22.

Rule covering jury instructions, see Miss. R. Civ. P. 51.

JUDICIAL DECISIONS

1. In general.

2. Marking and filing instructions.

3. Language of instructions.

4. Oral instructions.

5. Requested instructions in general.

6. Time for giving instructions.

7. Construction of instructions as a whole.

8. Applicability and responsiveness to pleadings.

9. Applicability of instructions to issues.

10. Applicability and responsiveness to evidence.

11. Assumption of facts.

12. Argumentative instructions.

13. Conflicting and inconsistent instructions.

14. Comment on evidence.

15. Weight of evidence.

16. Undue prominence to particular matters.

17. Peremptory instruction.

18. Modification or withdrawal.

19. Cure of error.

20. Subject matter of instructions.

21. —Credibility of witnesses.

22. — Negligence, generally.

23. —Contributory negligence.

24. —Proximate cause.

25. —Assumption of risk.

26. —Sudden emergency.

27. —Damages; amount of recovery.

28. —Punitive damages.

29. —Instructions on statute.

30. —Miscellaneous.

31. Objections and exceptions.

32. Review.

1. In general.

This section contravenes the constitutional mandate imposed upon the judiciary for the fair administration of justice insofar as the phrase “at the request of either party” prohibits a judge from instructing a jury as to the applicable law of the case; this section shall be applied with the indicated unconstitutional phrase deleted; the trial judge may initiate and give appropriate written instructions in addition to the approved instructions submitted by the litigants if he deems the ends of justice so require, but the trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so. Newell v. State, 308 So. 2d 71, 1975 Miss. LEXIS 1830 (Miss. 1975).

A judge may instruct the jury on a point only when requested. Ouille v. Saliba, 246 Miss. 365, 149 So. 2d 468, 1963 Miss. LEXIS 450 (Miss. 1963).

The circuit judge cannot originate instructions or give them on his own motion. Gangloff v. State, 232 Miss. 395, 99 So. 2d 461, 1958 Miss. LEXIS 285 (Miss. 1958).

A trial judge may not testify as a witness upon the merits of the controversy, especially where the trial is by jury and there is only one judge presiding, the functions of judge and witness being incompatible. Brashier v. State, 197 Miss. 237, 20 So. 2d 65, 1944 Miss. LEXIS 291 (Miss. 1944).

If a judge has notice that he will be called as a witness, he should arrange for someone to try the case, and if he has not sufficient notice to make such arrangement, then he should refuse to testify as a witness in the case. Brashier v. State, 197 Miss. 237, 20 So. 2d 65, 1944 Miss. LEXIS 291 (Miss. 1944).

Failure to object in advance to the trial judge’s testifying as a witness will not preclude appellate review of the propriety of such procedure where immediately thereafter counsel moved that the evidence be stricken and, if not, for a mistrial. Brashier v. State, 197 Miss. 237, 20 So. 2d 65, 1944 Miss. LEXIS 291 (Miss. 1944).

Statute prohibiting judge to charge law except upon written request of party was not intended to transfer power to instruct jurors as to the law to any person other than trial judge. Dement v. Summer, 175 Miss. 290, 165 So. 791, 1936 Miss. LEXIS 3 (Miss. 1936).

Circuit judge cannot instruct jury of his own motion, but only when written requests are made. Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 1932 Miss. LEXIS 52 (Miss. 1932).

Construction of statute, subsequently re-enacted, as prohibiting judges from instructing juries without written requests, will not be departed from. Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 1932 Miss. LEXIS 52 (Miss. 1932).

Courts have the right and should limit the number of instructions, but this is not an arbitrary discretion as instructions should be granted to cover all necessary phases of the case. Yazoo & M. V. R. Co. v. Dees, 121 Miss. 439, 83 So. 613, 1920 Miss. LEXIS 91 (Miss. 1920).

The presiding judge is the source from which the law touching the case is to be supplied and he cannot of his own motion give any instruction whatever. Those given must be in writing and at the request of the party. Bangs v. State, 61 Miss. 363, 1883 Miss. LEXIS 138 (Miss. 1883).

A circuit judge is denied the power of originating instructions not called for or rendered necessary by those required by counsel. Watkins v. State, 60 Miss. 323, 1882 Miss. LEXIS 55 (Miss. 1882).

2. Marking and filing instructions.

Where a number of instructions are attached together and marked filed by the clerk on the back of a common wrapper they are sufficiently marked and filed within the meaning of this section [Code 1942, § 1530]. Gulf & S. I. R. Co. v. Boswell, 85 Miss. 313, 38 So. 43, 1904 Miss. LEXIS 183 (Miss. 1904).

3. Language of instructions.

The words in an instruction must be accorded their customary and usual significance, and if the meaning of an instruction is clear, then hypercritical criticism of the verbiage employed therein will be ignored. Council v. Duprel, 250 Miss. 269, 165 So. 2d 134, 1964 Miss. LEXIS 462 (Miss. 1964).

Instructions will not be deemed erroneous if, taken together, they furnish a correct guide for the jury. Stoner v. Colvin, 236 Miss. 736, 110 So. 2d 920, 1959 Miss. LEXIS 371 (Miss. 1959).

Instruction correctly stating the law will not be reversed merely because the instruction was too long. Y. D. Lumber Co. v. Aycock, 40 So. 2d 551 (Miss. 1949).

An unhappily phrased instruction or one not exactly technical which does not mislead the jury is not a ground for reversal. Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532, 1919 Miss. LEXIS 167 (Miss. 1919); Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

4. Oral instructions.

In an action of bastardy, trial court’s comment to defense counsel that questions as to future expenses likely to be incurred for the future support of the child could be asked without violating the rule against conjectural damages was not tantamount to an oral instruction in violation of this section [Code 1942, § 1530]. Thomas v. Cook, 229 Miss. 458, 91 So. 2d 275, 1956 Miss. LEXIS 627 (Miss. 1956).

Where there was an objection to a question asking a witness what effect automobile collision had upon the plaintiff and how the plaintiff’s injury affected his palsy condition and whether such condition was better or worse, statements made by the trial court in sustaining the objections did not constitute instructions to the jury. Welch v. Morgan, 225 Miss. 154, 82 So. 2d 820, 1955 Miss. LEXIS 569 (Miss. 1955).

5. Requested instructions in general.

Trial judge held without power to prevent submission of cause to jury without instructions for plaintiff, who requested none. J. C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779, 1935 Miss. LEXIS 165 (Miss. 1935).

Plaintiff and defendant having both secured instructions announcing same rule, defendant held estopped from asserting that rule was erroneous and that refusal of defendant’s instruction inconsistent therewith was error. Yazoo & M. V. R. Co. v. Wade, 162 Miss. 699, 139 So. 403, 1932 Miss. LEXIS 132 (Miss. 1932).

Error cannot be predicated on failure of the court to give instructions not requested. Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459, 1914 Miss. LEXIS 279 (Miss. 1914); 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); Stevenson v. State, 136 Miss. 22, 100 So. 525, 1924 Miss. LEXIS 104 (Miss. 1924); Grady v. State, 144 Miss. 778, 110 So. 225, 1926 Miss. LEXIS 392 (Miss. 1926).

Instructions must be requested in writing. St. Louis & S. F. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 1911 Miss. LEXIS 164 (Miss. 1911); Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459, 1914 Miss. LEXIS 279 (Miss. 1914).

If a jury, after retiring to consider its verdict, request additional instructions, either party may present and ask for additional written instructions, and it will be error to refuse them on the ground that they are too late. Wright v. State, 82 Miss. 421, 34 So. 4, 1903 Miss. LEXIS 133 (Miss. 1903).

An applicant cannot complain of error in an instruction at his own instance, nor of a conflict in instructions caused by his erroneous ones, nor of one more favorable than the law allows. Clisby v. Mobile & O. R. Co., 78 Miss. 937, 29 So. 913, 1901 Miss. LEXIS 147 (Miss. 1901).

6. Time for giving instructions.

After the argument in the case has opened, it is error to give an instruction without stopping the case and giving the opposite party opportunity to comment thereon. Maxey v. State, 140 Miss. 570, 106 So. 353, 1925 Miss. LEXIS 291 (Miss. 1925).

A court should not give an instruction without giving the opposite party opportunity to know thereof and read same. King v. State, 121 Miss. 230, 83 So. 164, 1919 Miss. LEXIS 158 (Miss. 1919); Nelson v. State, 129 Miss. 288, 92 So. 66, 1922 Miss. LEXIS 40 (Miss. 1922).

7. Construction of instructions as a whole.

Instructions should never be used to influence the jury as to how facts should be decided, and when instructions are worded so as to indicate how a jury should decide an issue of fact they are harmful, and unless all instructions, taken together, are written so as to give the jury the full application of the law as to the issues involved the Supreme Court will usually reverse. Keith v. State, 197 So. 2d 480, 1967 Miss. LEXIS 1529 (Miss. 1967), but see Hall v. State, 427 So. 2d 957, 1983 Miss. LEXIS 2444 (Miss. 1983).

An instruction must be considered as a whole, and together with all the instructions received by the parties to the action. Council v. Duprel, 250 Miss. 269, 165 So. 2d 134, 1964 Miss. LEXIS 462 (Miss. 1964).

Instructions will not be deemed erroneous if, taken together, they furnish a correct guide for the jury. Stoner v. Colvin, 236 Miss. 736, 110 So. 2d 920, 1959 Miss. LEXIS 371 (Miss. 1959).

Instruction to the effect that constable in pursuit of reckless driver, sounding his siren, was entitled to assume that other drivers would yield right of way, held, in view of other instructions on proximate cause and duty to have regard to safety of others, no error. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

Jury is presumed to have obeyed and applied instructions and to have considered them as a whole. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

In an action upon an accidental death insurance policy, where the insurance company asked for and was granted instructions which covered every defense to which it was entitled, two of which were in substantially the same terms as the two instructions refused by the court, the court did not err in refusing the additional instructions. Benefit Asso. of R. Employees v. Harrison, 233 Miss. 834, 103 So. 2d 925, 1958 Miss. LEXIS 445 (Miss. 1958).

All instructions must be read and considered together. American Creosote Works, Inc. v. Smith, 233 Miss. 892, 103 So. 2d 861, 1958 Miss. LEXIS 454 (Miss. 1958).

Even though some imperfections could be found therein, instructions, which when read together, focused the attention of the jury on the real issue of whether the plaintiff’s truck was overtaken from behind, run into and damaged by the negligence of the defendant’s driver in operating his truck without proper control, without keeping a proper lookout, and at a negligent rate of speed, or whether plaintiff’s driver negligently stopped his truck on the half-moon curve in the right lane of the pavement when it was unnecessary and impractical to do so, and, if so, whether such negligence was the sole, proximate cause of the collision, were not reversibly erroneous. Green Truck Lines, Inc. v. Hooper, 233 Miss. 794, 103 So. 2d 443, 1958 Miss. LEXIS 441 (Miss. 1958).

Instructions, which, when read together, properly instructed the jury as to the degree of care required to be exercised by a nursing home operator toward an aged patient, answered plaintiff’s complaint directed toward two certain instructions granted to the defendant. Lagrone v. Helman, 233 Miss. 654, 103 So. 2d 365, 1958 Miss. LEXIS 428 (Miss. 1958).

Not every erroneous instruction requires a reversal of the judgment or the granting of a new trial, but all the instructions must be read and considered together, and, if the instructions, when read and considered as a whole, contain a fairly consistent statement of the law, the judgment will not be reversed because of errors in particular instructions, unless the errors are of such nature as to mislead a jury as to the real issues upon which they are to pass. Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So. 2d 837, 1957 Miss. LEXIS 324 (Miss. 1957).

In an action by a patient against a hospital for injuries sustained as the result of a newsboy entering the patient’s hospital room while the patient was asleep and striking him on the foot, thereby disturbing the patient and causing patient to fall or jump out of bed, in view of other instructions given, an erroneous instruction that to constitute negligence the jury would have to find that the hospital could have or should have foreseen that the newsboy would probably have entered the patient’s hospital room while he was alone and asleep and the newsboy probably would have struck him or startled him, and as a result of which the patient would jump from or start up in his bed, did not require a reversal of judgment. Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So. 2d 837, 1957 Miss. LEXIS 324 (Miss. 1957).

In an action on seller’s demand for the enforcement of his purchase money lien for the balance allegedly due on the purchase of a used airplane, the giving of instructions, which, when read and considered together, were not contradictory or misleading and constituted a sufficient statement of the law on the issue submitted to the jury, was not reversible error. Blount v. Hair, 228 Miss. 898, 90 So. 2d 5, 1956 Miss. LEXIS 579 (Miss. 1956).

In suit by employee against employer for personal injuries, instruction granted employee on issue of whether or not employer took reasonable care to furnish employee with reasonably safe place to work is not reversibly erroneous when that phase of law is thoroughly covered by instructions granted employer and is fairly and sufficiently submitted to jury, since all instructions must be read together. Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So. 2d 405, 1950 Miss. LEXIS 246 (Miss. 1950).

When jury is fully charged in numerous instructions for both parties as to applicable law of case, two instructions, even if erroneous because referring to allegations of declaration, are not so prejudicial as to require reversal. Jessup v. Reynolds, 208 Miss. 50, 43 So. 2d 753, 1949 Miss. LEXIS 407 (Miss. 1949).

Instruction in action by employee against railroad for damages for personal injury, which is technically erroneous in that it failed to contain work “reasonably” before word “safe” in the phrase “negligent in failing to use reasonable care to maintain the switch. . . in a safe condition,” is harmless and not sufficient to require reversal when all instructions as whole correctly defined defendant’s duty. St. Louis S. F. R. Co. v. Dyson, 207 Miss. 639, 43 So. 2d 95, 1949 Miss. LEXIS 376 (Miss. 1949).

Construction of all of the instructions as a whole will not cure an instruction that is contradictory of the other instructions and entirely contrary to the law. Wallace v. Billups, 203 Miss. 853, 33 So. 2d 819, 1948 Miss. LEXIS 329 (Miss. 1948).

Instruction as to liability of master for injury to the servant with respect to the manner in which servant was required to perform his work was not erroneous when considered with all the other instructions in the case. C. & R. Lumber Co. v. Crane, 135 Miss. 303, 99 So. 753, 1924 Miss. LEXIS 27 (Miss. 1924).

Although one instruction standing alone may be incorrect, yet if all the instructions taken together constitute the law correctly given the error is harmless. City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590, 1920 Miss. LEXIS 78 (Miss. 1920).

On a point covered by other instructions it is not error to refuse an instruction. Yazoo & M. V. R. Co. v. Walls, 110 Miss. 256, 70 So. 349, 1915 Miss. LEXIS 35 (Miss. 1915); Illinois C. R. Co. v. Redmond, 119 Miss. 765, 81 So. 115, 1919 Miss. LEXIS 15 (Miss. 1919); Bonelli v. Branciere, 127 Miss. 556, 90 So. 245, 1921 Miss. LEXIS 257 (Miss. 1921), overruled, Vascoe v. Ford, 212 Miss. 370, 54 So. 2d 541, 1951 Miss. LEXIS 458 (Miss. 1951); T. J. Moss Tie Co. v. Bank of Decatur, 97 So. 417 (Miss. 1923).

It is not error to instruct the jury that private property cannot be damaged for public use except on due compensation being first made where all the charges construed together correctly stated the law. Warren County v. Rand, 88 Miss. 395, 40 So. 481, 1906 Miss. LEXIS 107 (Miss. 1906).

Instructions for plaintiff and defendant must be considered together, and if, on the whole, it appears that the law was fairly embodied in the instructions, the verdict will be upheld. Yazoo & M. V. R. Co. v. Williams, 87 Miss. 344, 39 So. 489, 1905 Miss. LEXIS 115 (Miss. 1905); Mississippi C. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505, 1906 Miss. LEXIS 195 (Miss. 1906); Yazoo & M. V. R. Co. v. Kelly, 98 Miss. 367, 53 So. 779, 1910 Miss. LEXIS 73 (Miss. 1910).

8. Applicability and responsiveness to pleadings.

An instruction on one count in a declaration should be limited to said count, otherwise it may constitute reversible error. Thames v. Batson & Hatton Lumber Co., 143 Miss. 5, 108 So. 181, 1926 Miss. LEXIS 238 (Miss. 1926).

An instruction assigning negligence not alleged in the declaration and not shown to be the proximate cause of the injury should not be given. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

An instruction on a count in the declaration withdrawn from the jury may be reversible error. National Life & Acci. Ins. Co. v. De Vance, 110 Miss. 196, 70 So. 83, 1915 Miss. LEXIS 23 (Miss. 1915).

An instruction must confine rights of recovery on facts alleged in the pleading. McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274, 1913 Miss. LEXIS 204 (Miss. 1913).

An instruction directing the jury to return a verdict in favor of the plaintiff if the evidence showed that she was injured in the manner set out in the declaration was error as tending to confuse and mislead the jury, but such error was not prejudicial where the facts on which the cause of action was grounded were so set out in the declaration that the jury could readily refer to them and ascertain what the court meant by the instruction, and the facts necessary for the jury to believe in order to render a verdict for plaintiff were sufficiently set out in other portions of the instructions. Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355, 1911 Miss. LEXIS 226 (Miss. 1911).

If plaintiff’s agent consented to defendant’s entry and cutting of timber, in case of trespass an instruction that defendant would not be liable where there is no count for the value of the timber, is not erroneous. Hicks v. Mississippi Lumber Co., 95 Miss. 353, 48 So. 624, 1909 Miss. LEXIS 233 (Miss. 1909).

9. Applicability of instructions to issues.

Where a landowner alleged and presented testimony to the effect that a municipality was responsible for sewage invading his land where his cows consumed a quantity of the same resulting in the death of some of them, the landowner made out a case of absolute liability, and the allegation of negligence was surplusage and instructions which may not have adequately defined negligence or set forth acts or omissions constituting negligence were mere surplusage. Town of Fulton v. Mize, 274 So. 2d 129, 1973 Miss. LEXIS 1586 (Miss. 1973).

In action brought by house mover against electric company for injuries he received from coming into contact with live power line, and instruction for defendant that if jury believed plaintiff knew and appreciated dangers existing in connection with overhead power line and voluntarily placed himself in a position to come in contact with it he had assumed the risks incident thereto, including any negligence of defendant, defendant would not be liable for plaintiff’s injuries, was erroneously granted; for it prevented application of comparative negligence doctrine by jury and eliminated distinction between assumption of risk and contributory negligence, where there was evidence in record to the effect that an employee of defendant told plaintiff the wire was harmless and plaintiff should take hold of it and lift it up. Crouch v. Mississippi Power & Light Co., 193 So. 2d 144, 1966 Miss. LEXIS 1283, 1967 Miss. LEXIS 1546 (Miss. 1966).

In an eminent domain action where both a mortgagor and mortgagee were parties defendant, it was error to grant an instruction that under Article 1, § 10, of the United States Constitution, no state should enact a law impairing the obligation of prior contracts, for the reason that such an instruction had no place in the action. Mississippi State Highway Com. v. Nixon, 253 Miss. 636, 178 So. 2d 680, 1965 Miss. LEXIS 1022 (Miss. 1965).

Since common-law principles of negligence applied to an action arising out of a motor vehicle collision at an intersection of an existing public road and a new highway under construction which was not open to general vehicular traffic, the court committed reversible error in giving the favored driver instruction, which is solely statutory in origin. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

An instruction in an assault action as to the permissibility of a finding for plaintiff need not predicate absence of justification by insult by words where, under the evidence, justification is not an issue; nor need it exclude self-defense where the evidence shows that plaintiff was attacked by defendant while conversing with another. Pittman v. Partin, 236 Miss. 517, 111 So. 2d 238, 1959 Miss. LEXIS 345 (Miss. 1959).

In an action against a municipal policeman and the surety upon his official bond for assault upon the plaintiff by the policeman, the trial court did not err in refusing to instruct that the surety company would not be liable for anything unless the policeman was first liable, and that, if the surety was required to pay any part of the judgment, then the individual defendant would be obligated to reimburse the surety for that amount. Vanderslice v. Shoemake, 233 Miss. 523, 102 So. 2d 804, 1958 Miss. LEXIS 411 (Miss. 1958).

In wrongful death action arising out of defendant’s automobile colliding with a bicycle ridden by a nine-year-old child upon the highway, where it appeared that the defendant was confronted with the danger of injury to the boy when he first saw him peddling his bicycle on the highway in front of him, and had had ample time to sound his horn, and bring his automobile under proper control, the court erred in granting an instruction on the sudden emergency doctrine, since it was inapplicable in the case. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

In an action by a patient against the hospital for injury sustained as a result of a newsboy entering the patient’s hospital room while he was asleep, and striking him on the foot with a newspaper, thereby startling and causing patient to jump or fall out of bed, it was not error for the court to refuse to instruct that if the plaintiff’s injury was caused by the concurring negligence of the hospital’s employees and the newsboy, the hospital would be liable to the same extent as though the injury had been caused by the hospital’s negligence alone, where the newsboy was not sued as a codefendant and it was not claimed that any hospital employees entered the hospital room with the newsboy, or had any part in the creation of the disturbance complained of. Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So. 2d 837, 1957 Miss. LEXIS 324 (Miss. 1957).

Instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case. Hunt v. Sherrill, 195 Miss. 688, 15 So. 2d 426, 1943 Miss. LEXIS 153 (Miss. 1943).

Where the real issues of the case are presented by other instructions, it is not reversible error to instruct the jury on a question of law not raised as an issue where it appears to be harmless. Cecil Lumber Co. v. McLeod, 122 Miss. 767, 85 So. 78, 1920 Miss. LEXIS 475 (Miss. 1920).

An instruction should not eliminate an issue supported by the evidence. McNeill v. Bay Springs Bank, 100 Miss. 271, 56 So. 333, 1911 Miss. LEXIS 21 (Miss. 1911); Lackey v. St. Louis & S. F. R. Co., 102 Miss. 339, 59 So. 97, 1912 Miss. LEXIS 62 (Miss. 1912); Harrison v. Garner, 110 Miss. 586, 70 So. 700, 1915 Miss. LEXIS 82 (Miss. 1915).

10. Applicability and responsiveness to evidence.

A requested jury instruction should be denied where, on the evidence, no reasonable juror could, consistent with his oath, find the fact supporting the instruction. Graves v. Graves, 531 So. 2d 817, 1988 Miss. LEXIS 491 (Miss. 1988).

An instruction in an action to recover under a health and accident policy for medical and hospital expenses, to the effect that the plaintiff was not entitled to recovery if he was engaged in the commission of an assault or a felony at the time of injury, was defective on the theories that it was too abstract and not sufficiently related to the facts of the case, where the evidence supported a finding that the insured received his injury while engaged in the pursuit of another person for the purpose of making an unlawful arrest. Taylor v. Taylor, 260 So. 2d 448, 1972 Miss. LEXIS 1563 (Miss. 1972).

In an action on a major medical policy which precluded recovery for care furnished the insured injured while participating in an assault or a felony, an instruction that if the jury should find that the insured, who was hospitalized after being shot while attempting to make a citizen’s arrest for a traffic offense, arrested or pursued another for the purpose of arresting without a warrant for an indictable offense or a breach of the peace threatened or attempted in his presence, it would be the jury’s duty to return a verdict for the insured, was erroneous where it appeared from the evidence that the insured thought of making a citizen’s arrest only after he had failed to find the sheriff and after any traffic offense had long been completed by the victim. Protective Life Ins. Co. v. Spears, 231 So. 2d 510, 1970 Miss. LEXIS 1599 (Miss. 1970).

An instruction should not be given on a charge of negligence not supported by any proof. New Orleans & N. R. Co. v. Ready, 238 Miss. 199, 118 So. 2d 185, 1960 Miss. LEXIS 396 (Miss. 1960).

In an action arising out of an intersectional motor vehicle collision, where the evidence showed that plaintiff’s automobile actually entered the intersection first, the trial court committed reversible error in giving an instruction asserting that failure of plaintiff to yield the right of way, if defendant had already entered the intersection, would constitute negligence. Carlisle v. Cobb Bros. Constr. Co., 238 Miss. 681, 119 So. 2d 918, 1960 Miss. LEXIS 457 (Miss. 1960).

In an action for property and personal injury damages suffered by plaintiff when his wagon, while being drawn upon the highway by mules, was struck by defendant’s truck, when the record failed to disclose that plaintiff was guilty of the slightest negligence, the trial committed reversible error in instructing that if damages suffered by plaintiff were caused by his own negligence, verdict should be for the defendant. Hughes v. Wright, 233 Miss. 541, 102 So. 2d 798, 1958 Miss. LEXIS 414 (Miss. 1958).

Where there was no proof that the plaintiff had proceeded blindly down a street at an excessive speed to an intersection where a collision occurred, the court’s instruction which had the effect of charging the jury that plaintiff had done so, and which was also argumentative and confusing, constituted reversible error. Wells v. Bennett, 232 Miss. 736, 100 So. 2d 344, 1958 Miss. LEXIS 322 (Miss. 1958).

Where the maker had admitted the execution of the note, and no credit appeared thereon, and the plaintiff, who was the wife of the payee, had testified that the note had not been paid, the court erred in telling the jury that the plaintiff relied entirely on circumstantial evidence, and that it was the sworn duty of each member of the jury to consider all the circumstantial evidence with great care and caution. Jenkins v. Jenkins, 232 Miss. 879, 100 So. 2d 789, 1958 Miss. LEXIS 343 (Miss. 1958).

In an action by plaintiff for injuries sustained in an intersection automobile collision, the trial court committed reversible error in instructing that the driver of the car in which plaintiff was riding was guilty of negligence in driving his car into the intersection of a through highway without looking to the north immediately before doing so, and that judgment should be for defendants if such negligence were the proximate cause of the collision, where both plaintiff and the driver had testified that before entering the intersection they had looked both to the north and to the south. Moore v. Herman Guy Auto Parts, Inc., 230 Miss. 189, 92 So. 2d 373, 1957 Miss. LEXIS 358 (Miss. 1957).

The court erred in instructing that if the jury believed that a nine-year-old boy, riding a bicycle on the highway, was aware of the approach of the defendant’s automobile, or that the actions of the boy while riding on the highway were such that reasonably led the defendant to believe that the child had noticed and was fully aware of the approach of his automobile, the defendant was under no legal duty to sound his horn and continue sounding his horn at short and frequent intervals when approaching the child, where there was no evidence warranting a finding that the boy was aware of the approach of the automobile prior to the time the defendant had sounded his horn when he was only 12 or 15 feet from the child. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

In an action by a plaintiff for personal injuries sustained when a truck in which she was a passenger was struck by defendant’s automobile while undertaking to turn from the right lane of traffic across the oncoming traffic lane to enter a driveway, an instruction as to the general duty of an automobile driver with reference to stopping, if necessary to avoid a collision with others, and what it takes to constitute that operation, and submitting the issue as to whether defendant was driving her car so as to be able to avoid such a collision, was not erroneous under the evidence, particularly where, in view of the defendant’s own admission, it was clear that she should have reduced her speed, or halted her car completely, if necessary, but that instead of doing this she approached the driveway at an admitted speed of 50 miles an hour, having every reason to believe and know that the truck was in the act of turning or would turn into the driveway. Hamilton v. McCry, 229 Miss. 481, 91 So. 2d 564, 1956 Miss. LEXIS 629 (Miss. 1956).

Where the evidence would not support a finding that plaintiff’s negligence was the sole proximate cause of the intersectional collision, the court erred in instructing that plaintiff, at the time of the accident, was under a duty to maintain a look-out for all persons who might have been on or about to cross the highway on which he was traveling, and to use every reasonable precaution to avoid injury or damage to such person, and if plaintiff’s failure to do so solely and proximately caused the collision, the jury should find for the defendant. Cobb v. Williams, 228 Miss. 807, 90 So. 2d 17, 1956 Miss. LEXIS 568 (Miss. 1956).

In a case in which evidence supports but one theory upon which plaintiff is entitled to prevail, an instruction which might mislead jury into another and different theory should not be given. Owen v. Sumrall, 204 Miss. 15, 36 So. 2d 800, 1948 Miss. LEXIS 339 (Miss. 1948).

The theory of a party may be embodied in his instruction through the recital of facts if there is testimony to support it and if the jury’s verdict on that theory is made conditional on its finding that such facts existed. Murphy v. Burney, 27 So. 2d 773 (Miss. 1946).

Instruction of jury on a correct principal of law, if inapplicable to the facts of the case, was harmless in view of the fact that the jury were instructed in other instructions as to every phase of the questions submitted to them. Mississippi Fire Ins. Co. v. Dixon, 133 Miss. 570, 98 So. 101, 1923 Miss. LEXIS 173 (Miss. 1923).

An instruction assigning negligence not alleged in the declaration and not shown to be the proximate cause of the injury should not be given. Hines v. McCullers, 121 Miss. 666, 83 So. 734, 1920 Miss. LEXIS 112 (Miss. 1920).

An instruction as to argument of counsel is improper. O'Leary v. Illinois C. R. Co., 110 Miss. 46, 69 So. 713, 1915 Miss. LEXIS 11 (Miss. 1915).

An instruction held erroneous because imposing too great a burden on plaintiff. Gentry v. Gulf & S. I. R. Co., 109 Miss. 66, 67 So. 849, 1915 Miss. LEXIS 114 (Miss. 1915).

The proximate cause of injury should be submitted to the jury upon proper instructions of the facts. Yazoo & M. V. R. Co. v. Smith, 103 Miss. 150, 60 So. 73, 1912 Miss. LEXIS 147 (Miss. 1912).

It is error to give an instruction having no application to the facts in the case. Fairfield v. Louisville & N. R. Co., 94 Miss. 887, 48 So. 513, 1909 Miss. LEXIS 350 (Miss. 1909); New Orleans & N. E. R. Co. v. Williams, 96 Miss. 373, 53 So. 619, 1909 Miss. LEXIS 66 (Miss. 1909); Easley v. Alabama G. S. R. Co., 96 Miss. 396, 50 So. 491, 1909 Miss. LEXIS 17 (Miss. 1909); Hunnicutt v. Alabama G. S. R. Co., 50 So. 697 (Miss. 1909).

A case in which too high degree of proof is required by the instructions. Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51, 1908 Miss. LEXIS 197 (Miss. 1908).

Instructions on points not raised by the evidence are properly refused. Mobile, J. & K. C. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 1908 Miss. LEXIS 218 (Miss. 1908); Kneale v. Lopez & Dukate, 93 Miss. 201, 46 So. 715, 1908 Miss. LEXIS 106 (Miss. 1908).

In case where there is no conflict of evidence on a point, it is error to give instructions on such point as if the matter was doubtful. Mobile, J. & K. C. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 1908 Miss. LEXIS 218 (Miss. 1908).

Where there is no evidence upon which to predicate an instruction it is erroneous to give one. Burnley v. Mullins, 86 Miss. 441, 38 So. 635, 1905 Miss. LEXIS 68 (Miss. 1905); American Cent. Ins. Co. v. Antram, 88 Miss. 518, 41 So. 257, 1906 Miss. LEXIS 171 (Miss. 1906); Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616, 1909 Miss. LEXIS 7 (Miss. 1909); Alabama & V. Ry. Co. v. Baldwin, 96 Miss. 52, 52 So. 358 (1909); New Orleans & N. E. R. Co. v. Williams, 96 Miss. 373, 53 So. 619, 1909 Miss. LEXIS 66 (Miss. 1909); Hooks v. Mills, 101 Miss. 91, 57 So. 545, 1911 Miss. LEXIS 109 (Miss. 1911); Yazoo & M. V. R. Co. v. Dyer, 102 Miss. 870, 59 So. 937, 1912 Miss. LEXIS 130 (Miss. 1912); McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274, 1913 Miss. LEXIS 204 (Miss. 1913); Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824, 1913 Miss. LEXIS 241 (Miss. 1913); Yazoo & M. V. R. Co. v. Aden, 106 Miss. 860, 64 So. 790, 1914 Miss. LEXIS 29 (Miss. 1914); J. J. Newman Lumber Co. v. Dantzler, 107 Miss. 31, 64 So. 931, 1914 Miss. LEXIS 42 (Miss. 1914); Western Union Tel. Co. v. Robertson, 109 Miss. 775, 69 So. 680, 1915 Miss. LEXIS 225 (Miss. 1915); Collins v. Union & Farmers' Bank, 110 Miss. 506, 70 So. 581, 1915 Miss. LEXIS 67 (Miss. 1915).

Erroneous instructions calculated to mislead the jury are not harmless where the testimony would support a verdict for either party. B. E. Brister & Co. v. Illinois C. R. Co., 84 Miss. 33, 36 So. 142, 1904 Miss. LEXIS 10 (Miss. 1904).

An instruction not based on evidence is fatally erroneous if by any means it might mislead the jury. Southern R. Co. v. Lanning, 83 Miss. 161, 35 So. 417, 1903 Miss. LEXIS 25 (Miss. 1903).

An instruction may embody uncontradicted facts proven on the trial and to refuse such is error. Moody v. Chas. Galigher & Son (Miss. 1886).

It is error to refuse to give instructions conditioned upon the facts adduced from the evidence. Noel v. Hooker (Miss. 1886).

11. Assumption of facts.

An instruction in an automobile collision action to the effect that the plaintiff had been in at least three prior automobile accidents and was permanently injured in one of them was not an erroneous commentary on the evidence where there was no controversy that the plaintiff had been in the other accidents. Hankins v. Sanderson Farms, Inc., 226 So. 2d 723, 1969 Miss. LEXIS 1310 (Miss. 1969).

Instructions which assume that one vehicle involved in an automobile accident passed another, a disputed question of fact, or which assume that the driver of the vehicle failed to keep a reasonable look out to the rear, should not be granted. Miller Transporters, Ltd. v. Espey, 253 Miss. 439, 176 So. 2d 249, 1965 Miss. LEXIS 1001 (Miss. 1965), modified, 187 So. 2d 876, 1966 Miss. LEXIS 1367 (Miss. 1966).

In an action against the driver by a share-the-expense guest for injuries allegedly sustained when the automobile foot brake failed to function properly, resulting in the driver’s automobile colliding into the rear of another automobile, which had come to a stop, a sudden emergency instruction was erroneous which assumed by the use of the words “failure of the defendant’s brakes” that there was evidence in the record upon which the jury might find that both braking systems were defective, when in fact there was no evidence to show that the emergency brake was in any way defective, and which omitted entirely the statement that after the emergency arose, the defendant exercised such care as a reasonably prudent and capable driver would use under the unusual circumstances. Moore v. Taggart, 233 Miss. 389, 102 So. 2d 333, 1958 Miss. LEXIS 396 (Miss. 1958).

When there was no proof that the plaintiff had proceeded blindly down a street at an excessive speed to an intersection where a collision occurred, the court’s instruction which had the effect of charging the jury that plaintiff had done so, and which was also argumentative and confusing, constituted reversible error. Wells v. Bennett, 232 Miss. 736, 100 So. 2d 344, 1958 Miss. LEXIS 322 (Miss. 1958).

In an action arising out of a collision between an automobile and a truck, the trial court’s instruction that the uncontradicted proof in the case showed that the truck owned and operated by the defendant was not equipped with clearance lights and side marker lights and reflectors as required by law, and that such failure to have the truck equipped was negligence on the part of the defendants, and that if such negligence proximately contributed to the collision, the jury should find for plaintiff, was not error, even though it may have had the effect of prejudicing the jury as against the defendants, since established facts can properly be assumed in the instructions. Arnold v. Reece, 229 Miss. 862, 92 So. 2d 237, 1957 Miss. LEXIS 335 (Miss. 1957).

In an action arising out of a motor vehicle intersectional collision, an instruction should not have been given which was based upon the assumption that the defendant was about to cross at an intersection when the proof showed that the defendant was not about to cross at an intersection, but was about to make a left turn on a through highway upon which he had been traveling. Cobb v. Williams, 228 Miss. 807, 90 So. 2d 17, 1956 Miss. LEXIS 568 (Miss. 1956).

In action for damages to automobile arising out of ramming by truck from rear, trial court committed no error in refusing instruction to plaintiff based on assumption that brakes on defendant’s truck were not efficient, when, as matter of fact, there was no such evidence in record. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In action arising out of collision of two trucks on highway, instruction is not erroneous as assuming truck which inflicted damage was owned by defendant when there is no dispute in case that defendant did in truth own it. West v. Aetna Ins. Co., 208 Miss. 776, 45 So. 2d 585, 1950 Miss. LEXIS 296 (Miss. 1950).

Instructions assuming a matter in issue are erroneous. Dixie Stock Yard, Inc. v. Ferguson, 192 Miss. 166, 4 So. 2d 724, 1941 Miss. LEXIS 19 (Miss. 1941).

Facts must not be assumed in the giving of instruction. Griffin v. Griffin, 93 Miss. 651, 46 So. 945, 1908 Miss. LEXIS 112 (Miss. 1908); Reid v. Yazoo & M. V. R. Co., 94 Miss. 639, 47 So. 670, 1909 Miss. LEXIS 323 (Miss. 1909); Godfrey v. Meridian R. & L. Co., 101 Miss. 565, 58 So. 534, 1911 Miss. LEXIS 172 (Miss. 1911); Illinois C. R. Co. v. Harris, 108 Miss. 574, 67 So. 54, 1914 Miss. LEXIS 241 (Miss. 1914).

An instruction assuming on a conflict of evidence that the plaintiff was riding in a dangerous place is erroneous. Reid v. Yazoo & M. V. R. Co., 94 Miss. 639, 47 So. 670, 1909 Miss. LEXIS 323 (Miss. 1909).

Where the plaintiff in replevin claims the property under a sale, an instruction which assumes that the sale under which the plaintiff claimed was not bona fide, is erroneous. Griffin v. Griffin, 93 Miss. 651, 46 So. 945, 1908 Miss. LEXIS 112 (Miss. 1908).

An instruction is not objectionable as being on the weight of the evidence, because it assumes as true matters proven by both parties or about which there is no controversy. Alabama & V. R. Co. v. Phillips, 70 Miss. 14, 11 So. 602, 1892 Miss. LEXIS 57 (Miss. 1892).

An instruction is erroneous if it assume as true a disputed fact of vital importance. French v. Sale, 63 Miss. 386, 1885 Miss. LEXIS 84 (Miss. 1885), limited, Garmon v. State, 66 Miss. 196, 5 So. 385, 1888 Miss. LEXIS 88 (Miss. 1888).

12. Argumentative instructions.

A condemnor’s instruction in an eminent domain proceeding that in determining the fair market value of the defendant’s land before the taking of an easement for a power line across it the jury “must take into account” previously existing pipeline easements and the increase or decrease in the value of the defendant’s land before the taking which results from the existence of the pipeline easements, and that the jury may not award to the defendant any amount for damages resulting to the land from the presence of the pre-existing easements, was misleading and argumentative and constituted a comment on the testimony in the case. White v. Mississippi Power Co., 252 Miss. 97, 171 So. 2d 312, 1965 Miss. LEXIS 1081 (Miss. 1965).

Where there was no proof that the plaintiff had proceeded blindly down a street at an excessive speed to an intersection where a collision occurred, the court’s instruction which had the effect of charging the jury that plaintiff had done so, and which was also argumentative and confusing, constituted reversible error. Wells v. Bennett, 232 Miss. 736, 100 So. 2d 344, 1958 Miss. LEXIS 322 (Miss. 1958).

And a refusal of such instructions is not reversible error. Carter v. State, 140 Miss. 265, 105 So. 514, 1925 Miss. LEXIS 259 (Miss. 1925).

Instructions should not be argumentative nor on the weight of the evidence nor emphasize certain portions of the evidence. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909).

Where appellant asked for and was given an instruction propounding a legal proposition as applicable to the case, he cannot complain of an instruction for the appellee because it propounded the same proposition. Gulf & S. I. R. Co. v. Boswell, 85 Miss. 313, 38 So. 43, 1904 Miss. LEXIS 183 (Miss. 1904).

13. Conflicting and inconsistent instructions.

A trial court committed reversible error in peremptorily instructing the jury in a personal injury action that the defendant was negligent as a matter of law and then instructing the jury that the plaintiffs were still required to prove that the defendant was negligent by a preponderance of the evidence, since the instructions were contradictory as well as confusing. Elam v. Pilcher, 552 So. 2d 814, 1989 Miss. LEXIS 11 (Miss. 1989).

Where the plaintiff’s automobile struck the defendant’s automobile which was disabled on the highway as a result of an accident caused by the defendant’s negligence, the court properly refused the defendant’s instruction that the driver of the plaintiff’s automobile was guilty of negligence as a matter of law, for this instruction was in conflict with an instruction given for the plaintiff in which the court properly instructed the jury that the negligence of the defendant caused or contributed to the second accident. Huff v. Boyd, 242 So. 2d 698, 1971 Miss. LEXIS 1496 (Miss. 1971).

A peremptory instruction for the plaintiff and an “unavoidable accident” instruction given for one of the defendants are in conflict and could only serve to confuse the jury. Miller Transporters, Ltd. v. Espey, 253 Miss. 439, 176 So. 2d 249, 1965 Miss. LEXIS 1001 (Miss. 1965), modified, 187 So. 2d 876, 1966 Miss. LEXIS 1367 (Miss. 1966).

An instruction is not objectional as in conflict with another, where such other was improperly given. Vaughan v. Lewis, 236 Miss. 792, 112 So. 2d 247, 1959 Miss. LEXIS 378 (Miss. 1959).

In an action for personal injuries sustained in an automobile collision, the trial court erred in granting the plaintiff an instruction with reference to whether the driver of the automobile has a right to assume that all other persons are obeying the traffic laws, which instruction was also in conflict with one granted to the defendant, but where it appeared from the record that no impartial jury, duly mindful of the obligations of their oath, could have reached a different result, the Supreme Court, under Rule 11, Revised Rules of the Supreme Court, refused to reverse the case. Brown v. Addington, 233 Miss. 435, 102 So. 2d 365, 1958 Miss. LEXIS 400 (Miss. 1958).

Instructions that if the jury were reasonably satisfied from a preponderance of the evidence that the defendant committed the fraud complained of, verdict should be rendered for plaintiff was erroneous, and conflicting and irreconcilable instruction, on behalf of defendant, that fraud must be shown by clear and convincing evidence, did not cure the error. Hunt v. Sherrill, 195 Miss. 688, 15 So. 2d 426, 1943 Miss. LEXIS 153 (Miss. 1943).

However, conflicting instructions should not be given. Illinois C. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55, 1908 Miss. LEXIS 199 (Miss. 1908); McNeill v. Bay Springs Bank, 100 Miss. 271, 56 So. 333, 1911 Miss. LEXIS 21 (Miss. 1911).

A litigant cannot complain of a conflict in instructions caused by his erroneous ones. Clisby v. Mobile & O. R. Co., 78 Miss. 937, 29 So. 913, 1901 Miss. LEXIS 147 (Miss. 1901).

14. Comment on evidence.

In a personal injury case, the court’s jury instructions did not improperly comment on the evidence because nothing in the judge’s explanation indicated anything about how the judge felt that the jury should rule, nor was the judge’s comment “tantamount” to commenting on evidence that had been presented; the example of apportionment of fault given to the jury was simply to aid their understanding of what would happen when they rendered their verdict, and how the form of their verdict should look. Walker v. Gann, 955 So. 2d 920, 2007 Miss. App. LEXIS 290 (Miss. Ct. App. 2007).

In an action for negligence and breach of warranty arising from the defendant’s sale of a combine to the plaintiff, it was error for the court to joke that the combine was manufactured on a Friday the 13th, as his joke went directly to the quality of the combine. Parker Tractor & Implement Co. v. Johnson, 1999 Miss. LEXIS 346 (Miss. Nov. 4, 1999), op. withdrawn, sub. op., 819 So. 2d 1234, 2002 Miss. LEXIS 3 (Miss. 2002).

The trial court in an automobile accident case erred reversibly in granting a jury instruction stating that plaintiff’s burden of proving that the injuries complained of were a result of the accident by a preponderance of the evidence was not met by testimony that plaintiff’s symptoms appeared after the accident and did not exist prior to the accident, since that instruction was a direct and improper comment upon the evidence by the court in contravention of §11-7-155, was argumentative, and was misleading. Barkley v. Miller Transporters, Inc., 450 So. 2d 416, 1984 Miss. LEXIS 1693 (Miss. 1984).

An instruction in an automobile collision action to the effect that the plaintiff had been in at least three prior automobile accidents and was permanently injured in one of them was not an erroneous commentary on the evidence where there was no controversy that the plaintiff had been in the other accidents. Hankins v. Sanderson Farms, Inc., 226 So. 2d 723, 1969 Miss. LEXIS 1310 (Miss. 1969).

A condemnor’s instruction in an eminent domain proceeding that in determining the fair market value of the defendant’s land before the taking of a power line easement across it the jury “must take into account” previously existing pipeline easements and the increase or decrease in the value of defendant’s land before the taking which results from the existence of such easements, and that the jury may not award to defendant any amount for damages resulting to the land from the presence of the pre-existing easements, was misleading and argumentative and constituted a comment upon the testimony in the case. White v. Mississippi Power Co., 252 Miss. 97, 171 So. 2d 312, 1965 Miss. LEXIS 1081 (Miss. 1965).

Where the maker had admitted the execution of the note and no credit appeared thereon, and the plaintiff, who was the wife of the payee, had testifed that the note had not been paid, the court erred in telling the jury that the plaintiff relied entirely on circumstantial evidence and that it was the sworn duty of each member of the jury to consider all the circumstantial evidence with great care and caution. Jenkins v. Jenkins, 232 Miss. 879, 100 So. 2d 789, 1958 Miss. LEXIS 343 (Miss. 1958).

Instruction in substance that witnesses in automobile colliding with bus were interested, and witnesses in bus were disinterested, and to consider interest in weighing testimony, held error as comment on evidence. D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415, 1932 Miss. LEXIS 83 (Miss. 1932).

15. Weight of evidence.

Defendant power company’s instruction in wrongful death action to the effect that the deceased was presumed to have seen the electric power line and to have known of its presence, was properly refused, since there was no presumption to that effect, and moreover the instruction was an attempt to instruct on the weight and worth of the evidence by adding an inference in violation of Code 1942, § 1530. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

A jury instruction for the defendant in an automobile collision case to the effect that if the jury finds, after considering all of the evidence, that the evidence is evenly balanced for the defendant and for a plaintiff, they must find for the defendant, was erroneously granted. First Nat'l Bank v. Mississippi State Highway Com., 227 So. 2d 118, 1969 Miss. LEXIS 1336 (Miss. 1969).

An instruction on reputation which required a jury to weigh the evidence of diagnosis and treatment in the light of a doctor’s reputation was, in effect, an instruction upon the weight of the testimony in violation of the requirements of this section [Code 1942, § 1530], and the instruction was improvidently given in a malpractice case in which the reputation of the physician was not in issue. De Laughter v. Womack, 250 Miss. 190, 164 So. 2d 762, 1964 Miss. LEXIS 455 (Miss. 1964).

An instruction in a condemnation case was improper where it told the jury that the burden of proof is on the condemnor to show by the greater weight of the more convincing evidence the amount of defendant’s damage, and that such burden is not met if the evidence for defendant is just as strong and convincing, in which case they would return a verdict for defendant in such amount as in view of all the evidence would afford full compensation. Mississippi State Highway Com. v. Fisher, 249 Miss. 198, 161 So. 2d 780, 1964 Miss. LEXIS 386 (Miss. 1964).

In a personal injury action arising out of a motor vehicle collision, an instruction that the burden was on the plaintiff to prove the material allegations of his declaration by preponderance of the testimony, and if he had failed in this, it was the jury’s sworn duty to find for the defendant, was disapproved. Winfield v. Magee, 232 Miss. 57, 98 So. 2d 130, 1957 Miss. LEXIS 443 (Miss. 1957).

In a will contest where the court instructs the jury for the contestants that they may consider as a circumstance against the validity of the will the long time intervening between the death of the testator and the date when the will was produced for probate, the instruction was erroneous not only that it singled out portions of the evidence, but it was also a charge upon the weight of evidence in direct contravention of this section [Code 1942, § 1530]. Harrison v. Gatewood, 211 Miss. 121, 51 So. 2d 59, 1951 Miss. LEXIS 339 (Miss. 1951).

When facts are established by preponderance of evidence, jury may believe those facts from the evidence, and it is wholly unnecessary for an instruction to contain word “preponderance” in such instances. St. Louis S. F. R. Co. v. Dyson, 207 Miss. 639, 43 So. 2d 95, 1949 Miss. LEXIS 376 (Miss. 1949).

In action for damages for false arrest and imprisonment wherein evidence shows that defendant failed to attend court because of illness, that no notice of trial date and that prosecution was dismissed without trial and exoneration of plaintiff, instruction that ill health on part of one guilty of falsely or maliciously causing arrest of another is no excuse in law is bad because it is an instruction on weight of evidence. Simonton v. Moore, 204 Miss. 760, 38 So. 2d 94, 1948 Miss. LEXIS 402 (Miss. 1948).

Instruction in an action for injuries to a child ten or twelve years old from contact with an electric wire, that the jury in determining contributory negligence must “consider the fact that the plaintiff in this case has lived all his life in a city, where they had electric lights and electric wires, and the fact that the plaintiff thus had opportunities to learn and appreciate the dangers of such agencies,” is erroneous, as being a charge on the weight of the evidence. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909).

Instruction on weight of evidence is erroneous. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909); Hooks v. Mills, 101 Miss. 91, 57 So. 545, 1911 Miss. LEXIS 109 (Miss. 1911).

An instruction on the weight of evidence is forbidden. French v. Sale, 63 Miss. 386, 1885 Miss. LEXIS 84 (Miss. 1885), limited, Garmon v. State, 66 Miss. 196, 5 So. 385, 1888 Miss. LEXIS 88 (Miss. 1888); Williams v. State, 32 Miss. 389, 1856 Miss. LEXIS 223 (Miss. 1856); Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909).

An instruction that the testimony of experts is to be “received with caution, as the opinion of such witnesses, however honestly entertained, may be erroneous,” is on the weight of evidence. Louisville, N. O. & T. R. Co. v. Whitehead, 71 Miss. 451, 15 So. 890, 1893 Miss. LEXIS 94 (Miss. 1893).

In view of the facts an instruction was held to be on the weight of the evidence and erroneous. Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830, 1892 Miss. LEXIS 40 (Miss. 1892).

An instruction is not objectionable as being on the weight of the evidence, because it assumes as true matters proven by both parties or about which there is no controversy. Alabama & V. R. Co. v. Phillips, 70 Miss. 14, 11 So. 602, 1892 Miss. LEXIS 57 (Miss. 1892).

16. Undue prominence to particular matters.

An instruction that the law did not countenance blind reliance upon an automobile operator, approaching a stop sign, observing it, so, even if plaintiff was driving his automobile on a through street protected by stop signs, he did not have an unqualified privilege in the right of way, and was under a duty to observe due care in approaching and traversing the intersection, placed undue emphasis on plaintiff’s duty to observe due care to avoid the collision and practically relieved the defendant from any duty to exercise due care at the intersection. Dame v. Estes, 233 Miss. 315, 101 So. 2d 644, 1958 Miss. LEXIS 382 (Miss. 1958).

Instruction giving undue prominence to certain evidence is erroneous. Hooks v. Mills, 101 Miss. 91, 57 So. 545, 1911 Miss. LEXIS 109 (Miss. 1911).

Instruction in action for injuries to a child, ten or twelve years old, from contact with electric wire, that jury in determining contributory negligence must consider the fact that plaintiff had lived all his life in the city where they had electric lights and wires, and the fact that he thus had opportunities to learn and appreciate their danger, held erroneous as singling out and giving undue prominence to a part of the evidence, to the exclusion of the remainder. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909).

17. Peremptory instruction.

In an action by an employee against his employer arising from an on-the-job injury, the trial court properly granted the employee peremptory instructions on contributory negligence and assumption of the risk, even though §11-7-17 provides that “all questions of negligence and contributory negligence shall be for the jury to determine,” where there was no proof indicating that any potential negligence or assumption of the risk by the employee led to the injury. Vicksburg v. Young, 616 So. 2d 883, 1992 Miss. LEXIS 779 (Miss. 1992).

The rule for determining whether a peremptory instruction is appropriate requires that all evidence favorable to the party against whom the peremptory instruction is requested must be accepted as true, all evidence in favor of the party requesting the peremptory instruction in conflict with that of the other party must be disregarded, and if the evidence and the reasonable inferences to be drawn from same will support a verdict for the party against whom it is requested, then the peremptory instruction should be refused. Whittley v. Meridian, 530 So. 2d 1341, 1988 Miss. LEXIS 364 (Miss. 1988).

If the court is in doubt whether a peremptory instruction should be granted, the proper procedure is for the court to submit the issue to the jury, then, if the court determines upon further deliberation that the verdict is contrary to law, to sustain a motion for a judgment notwithstanding the verdict, so that, if the Supreme Court concludes that the granting of such judgment was error, the judgment based on the jury verdict can be reinstated without the necessity of remanding the case for a new trial, saving time and expense for the court and litigants. Astleford v. Milner Enterprises, Inc., 233 So. 2d 524, 1970 Miss. LEXIS 1661 (Miss. 1970).

Where the sole and proximate cause of an accident which occurred when a tire of a bus sustained a blowout was the bus company’s negligence in using a recapped tire on the front wheel of the bus in violation of federal and state regulations, the plaintiffs were entitled to a peremptory instruction against the bus company but were not entitled to such instruction against both the busdriver and the bus company. Martin v. State, 222 So. 2d 816, 1969 Miss. LEXIS 1556 (Miss. 1969).

In an action for injuries sustained by a contractor’s laborer during the construction of a chicken house, where there was ample proof in the record from which the jury could determine that the contractor was negligent in backing a truck into the laborer, pinning him against the side of the chicken house, the contractor’s motion for a peremptory instruction and motion for a directed verdict were properly refused. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

In an action against an owner and a contractor for injuries sustained by the contractor’s laborer during the construction of a chicken house, where the owner exercised absolutely no control over the details of the construction or acts of the contractor’s three laborers, so that the contractor was an independent contractor and not a servant of the owner, and there was no agency relationship between them, negligence of the contractor could not be imputed to the owner, and the owner was entitled to a peremptory instruction absolving him of liability. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

In a bank’s replevin suit, in which it alleged that the bank was entitled to immediate possession of a house trailer being wrongfully withheld from the bank by the alleged purchasers of the trailer under a conditional sales contract held by the bank, where the bank rested after introducing into evidence the affidavit in replevin, the writ of replevin with the sheriff’s return thereon, and its declaration in replevin, and nothing further, the motion of the defendants for a directed verdict at that time, should have been sustained, the bank having introduced no evidence to show its right to the immediate possession of the trailer. Patrick v. Michigan Nat'l Bank, 220 So. 2d 273, 1969 Miss. LEXIS 1440 (Miss. 1969).

Where evidence is uncontradicted that plaintiffs’ decedent failed to stop at a stop sign as required by Code 1942, § 8197, the defendants were entitled to a peremptory instruction that if such failure was the sole proximate cause of the injuries and death of the decedent the jury should find for the defendants. Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

A peremptory instruction that defendant driver was guilty of negligence that proximately contributed to the collision and the resulting death of plaintiffs’ decedent, on the theory that the result in a former case involving the same collision but a different decedent was the law of the present case, was erroneously granted. Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

A peremptory instruction for the plaintiff and an “unavoidable accident” instruction given for one of the defendants are in conflict and could only serve to confuse the jury. Miller Transporters, Ltd. v. Espey, 253 Miss. 439, 176 So. 2d 249, 1965 Miss. LEXIS 1001 (Miss. 1965), modified, 187 So. 2d 876, 1966 Miss. LEXIS 1367 (Miss. 1966).

In a wrongful death case arising from an automobile collision involving several vehicles, for the plaintiff to be entitled to a peremptory instruction it should appear from the evidence which defendant or defendants is guilty of negligence proximately contributing to his injury, and such an instruction should not be given directing the jury to find someone among the defendants who should pay. Miller Transporters, Ltd. v. Espey, 253 Miss. 439, 176 So. 2d 249, 1965 Miss. LEXIS 1001 (Miss. 1965), modified, 187 So. 2d 876, 1966 Miss. LEXIS 1367 (Miss. 1966).

Where under the evidence the jurors could have found, and evidently did, that plaintiff, while endeavoring to pass a trailer-truck, gave the proper signal and acted as a prudent man, but that defendant pulled into the left lane and struck the plaintiff’s automobile without giving any kind of warning or signal that he was leaving the right or east lane and pulling into the west lane, the peremptory instruction requested by the defendant was properly refused. American Creosote Works, Inc. v. Smith, 233 Miss. 892, 103 So. 2d 861, 1958 Miss. LEXIS 454 (Miss. 1958).

In an action for personal injuries sustained when a blind pedestrian was struck when defendant backed his automobile from his driveway to a public street in a thickly populated neighborhood, where the evidence established that the defendant failed to stop his automobile upon the rear of the driveway before entering the sidewalk area, the trial court properly granted the pedestrian a peremptory instruction and liability. Hatten v. Brame, 233 Miss. 509, 103 So. 2d 4, 1958 Miss. LEXIS 410 (Miss. 1958).

In an action against a municipal policeman and the surety on his official bond for wrongful assault upon the plaintiff by the policeman, where the jury was warranted in finding that the assault and battery was committed by the officer while acting under color of his office, and that his acts were not purely private and personal, the defendants were not entitled to a peremptory instruction. Vanderslice v. Shoemake, 233 Miss. 523, 102 So. 2d 804, 1958 Miss. LEXIS 411 (Miss. 1958).

Plaintiff, in an action for the wrongful death of a four and one-half year old child, was not entitled to a peremptory instruction, where he offered no witnesses to contradict the testimony of the defendant and his wife that the boy and his grandmother were walking along the highway shoulder and the child jerked loose from the grandmother and suddenly darted in front of defendant’s automobile, but relied largely upon testimony as to measurements and distances, from which it was argued that the accident could not happen in the manner in which the defendant had stated. Hawkins v. Rye, 233 Miss. 132, 101 So. 2d 516, 1958 Miss. LEXIS 365 (Miss. 1958).

Where a loan service company purported to make arrangements for a borrower to borrow money from another firm, which did not actually loan money on the borrower’s credit but on the unconditional indorsement of the loan by the loan service company, the loan service company was not a broker, but the lender, so that a “brokerage” fee of $13 on a loan of $25 was in fact interest and usurious, and in a replevin action against a borrower by the trustee of the loan service company, the borrower was entitled to a peremptory instruction. Richardson v. Cortner, 232 Miss. 885, 100 So. 2d 854, 1958 Miss. LEXIS 344 (Miss. 1958).

In absence of any proof that the insured had any enforceable rights against another for damages to which the insurer had been subrogated, the trial court properly granted a peremptory instruction in favor of the insured in an action by the insurer for damages for the breach of a subrogation agreement. Washington Fire & Marine Ins. Co. v. Williamson, 233 Miss. 33, 100 So. 2d 852, 1958 Miss. LEXIS 353 (Miss. 1958).

In an action by a motorist for injuries sustained when his automobile was struck from behind by a truck owned by employer and driven by an employee, wherein the employer contended that at the time of the collision the employee had forsaken the employer’s business and was pursuing a mission personal to the employee and on a route wholly different from what he had previously used, the employer was not entitled to the peremptory instruction, where it appeared that even if the employee had deviated from his route he had not abandoned his master’s business. Pennebaker v. Parker, 232 Miss. 725, 100 So. 2d 363, 1958 Miss. LEXIS 321 (Miss. 1958).

Where the record disclosed that the tenant had sustained some damages which should have been offset against the rent and attorney’s fee sued for by the landlords, the landlords were not entitled to a peremptory instruction for the amount sued for. Walters v. Fine, 232 Miss. 494, 95 So. 2d 229, 1957 Miss. LEXIS 485 (Miss. 1957).

Where a church, although refusing Highway Commission’s offer of $1,500 for particular land, accepted a $1,600 check given as consideration for the land, indorsed it by its officers, deposited it, and made disbursement from the funds, the church ratified the sale and the Highway Commission was entitled to a peremptory instruction in the church’s action for trespass and taking of the property. Mississippi State Highway Dep't v. Bethlehem Baptist Church, 232 Miss. 335, 99 So. 2d 221, 1957 Miss. LEXIS 480 (Miss. 1957).

Where the defendant’s testimony as to his own good faith in cutting timber was uncontradicted, and plaintiff admitted that no merchantable timber had been cut, the court properly refused to peremptorily instruct the jury to find for plaintiff on the question of statutory penalty even though plaintiff had testified that after he had warned defendant’s workmen not to cross his line and deaden any timber on his land, some of the trees had been poisoned, but made no showing of the kind or how many trees, if any, had been poisoned after the warning. Strawbridge v. Day, 232 Miss. 42, 98 So. 2d 122, 1957 Miss. LEXIS 442 (Miss. 1957).

In an action against a minor and his parents for personal injuries arising out of a motor vehicle accident, where there was no proof that the father or mother authorized or knowingly permitted the minor to drive on the occasion in question, the trial court properly peremptorily instructed the jury to return a verdict for the parents. Prewitt v. Walker, 231 Miss. 860, 97 So. 2d 514, 1957 Miss. LEXIS 575 (Miss. 1957).

Plaintiff was entitled to a peremptory instruction where it appeared that defendant, at the speed he was traveling, was following too closely to the car preceding him, which stopped, causing defendant to enter into the opposite lane of traffic and collide head-on with the truck in which plaintiff’s decedent was riding, and defendant’s negligence proximately caused the collision and death; and defendant could not invoke the sudden emergency rule since his own testimony showed that the emergency was caused by his own fault. Meeks v. McBeath, 231 Miss. 504, 95 So. 2d 791, 1957 Miss. LEXIS 535 (Miss. 1957).

The trial court properly refused defendant a peremptory instruction where, in an action for a personal injury sustained when the truck in which plaintiff was a passenger was struck by defendant’s automobile while undertaking to turn from the right lane of traffic across the oncoming traffic lane to enter a driveway, the jury was warranted in finding that the truck driver’s movements were consistent with reasonable safety as required by Code 1942, § 8192, and that defendant’s negligence was the contributing, if not the sole, cause of accident. Hamilton v. McCry, 229 Miss. 481, 91 So. 2d 564, 1956 Miss. LEXIS 629 (Miss. 1956).

In an action of bastardy, where there was no substantial dispute as to the defendant being the father of the child, the court correctly granted a peremptory instruction for the mother. Thomas v. Cook, 229 Miss. 458, 91 So. 2d 275, 1956 Miss. LEXIS 627 (Miss. 1956).

Where defendant testified that when he had stopped prior to entering the through street he had seen plaintiff’s car approaching thereon at a distance of about 100 yards and traveling at about 40 miles per hour, but that he did not look any further before slowly driving onto the through street where the collision occurred, plaintiff was entitled to a peremptory instruction in his action for personal injuries sustained as a result of the collision. Wells v. Bennett, 229 Miss. 135, 90 So. 2d 199, 1956 Miss. LEXIS 594 (Miss. 1956).

Where the insured had presented sufficient evidence, which together with the logical inferences therefrom, if taken to be true, would have substantiated his claim that he was suffering on account of paralysis agitans or Parkinson’s disease, the court properly refused the insurer’s motion for a peremptory instruction. Brotherhood of Railroad Trainmen Ins. Dept., Inc. v. McLemore, 228 Miss. 579, 89 So. 2d 629, 1956 Miss. LEXIS 549 (Miss. 1956).

Motion for peremptory instruction to jury made at end of all testimony should not be sustained unless evidence of movant overwhelms by its weight proof of opposite party. Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So. 2d 717, 1950 Miss. LEXIS 304 (Miss. 1950).

In determining right of defendant to peremptory instruction to recover for death of customer allegedly caused by ptomaine poisoning, the court must assume as true everything which the evidence establishes either directly or by reasonable inferences which the jury might reasonably draw from such evidence, subject to the limitation, however, that a presumption cannot arise from another presumption. Goodwin v. Misticos, 207 Miss. 361, 42 So. 2d 397, 1949 Miss. LEXIS 349 (Miss. 1949).

Where the evidence clearly showed that the deceased was beating the driver of an automobile at the time of an accident in which he was killed and evidence that the accident was due to another cause was speculative, a peremptory instruction in favor of an insurance company seeking to avoid payment of double indemnity should have been given. Equitable Life Assurance Soc. v. Mitchell, 201 Miss. 696, 29 So. 2d 88, 1947 Miss. LEXIS 439 (Miss. 1947).

Failure of the insured and his wife to reply to a letter from the insurer that the insured was not the sole and unconditional owner of an automobile lost by theft and fire as contemplated by the policy did not entitle the insurer to a peremptory instruction where the letter left in doubt whether liability would be denied. St. Paul Fire & Marine Ins. Co. v. Staten, 200 Miss. 197, 26 So. 2d 538, 1946 Miss. LEXIS 283 (Miss. 1946).

This statute [Code 1942, § 1530] which forbids judges to comment on the evidence or to give any charge unless requested by one of the parties, leaves unaffected the judicial authority to direct a verdict. Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597, 1941 Miss. LEXIS 65 (Miss. 1941); Perry v. Clarke, 6 Miss. 495, 1841 Miss. LEXIS 24 (Miss. 1841).

Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against party who asks peremptory instructions. Dean v. Brannon, 139 Miss. 312, 104 So. 173, 1925 Miss. LEXIS 160 (Miss. 1925); McKinnon v. Braddock, 139 Miss. 424, 104 So. 154, 1925 Miss. LEXIS 149 (Miss. 1925); New Orleans & N. E. R. Co. v. Jackson, 140 Miss. 375, 105 So. 770, 1925 Miss. LEXIS 271 (Miss. 1925); New Orleans & N. E. R. Co. v. Martin, 140 Miss. 410, 105 So. 864, 1925 Miss. LEXIS 274 (Miss. 1925); Wise v. Peugh, 140 Miss. 479, 106 So. 81, 1925 Miss. LEXIS 283 (Miss. 1925); Gulf & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458, 1925 Miss. LEXIS 313 (Miss. 1925); St. Louis & S. F. R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478, 1925 Miss. LEXIS 184 (Miss. 1925); Yates v. Houston & Murray, 141 Miss. 881, 106 So. 110, 1925 Miss. LEXIS 215 (Miss. 1925); Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So. 2d 572, 1946 Miss. LEXIS 268 (Miss. 1946); Davidson v. McIntyre, 202 Miss. 325, 32 So. 2d 150, 1947 Miss. LEXIS 281 (Miss. 1947); Triangle Amusement Co. v. Benigno, 35 So. 2d 454 (Miss. 1948); Thomas v. Mississippi Products Co., 208 Miss. 506, 44 So. 2d 556, 1950 Miss. LEXIS 267 (Miss. 1950); Allgood v. United Gas Corp., 204 Miss. 94, 37 So. 2d 12, 1948 Miss. LEXIS 346 (Miss. 1948); Bankston v. Dumont, 205 Miss. 272, 38 So. 2d 721, 1949 Miss. LEXIS 429 (Miss. 1949); Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So. 2d 717, 1950 Miss. LEXIS 304 (Miss. 1950); Stoner v. Colvin, 236 Miss. 736, 110 So. 2d 920, 1959 Miss. LEXIS 371 (Miss. 1959); Statham v. Blaine, 234 Miss. 649, 107 So. 2d 93, 1959 Miss. LEXIS 575 (Miss. 1959); Priest v. Avent, 236 Miss. 202, 109 So. 2d 643, 1959 Miss. LEXIS 309 (Miss. 1959).

The court cannot direct verdict for either party when the evidence would authorize jury to find for the other. Taylor v. Desoto Lumber Co., 137 Miss. 829, 102 So. 260, 1924 Miss. LEXIS 219 (Miss. 1924).

A case in which plaintiff was entitled to a peremptory instruction with reference to cotton sales and transactions. Dillard & Coffin Co. v. Jennings, 132 Miss. 370, 96 So. 307, 1923 Miss. LEXIS 52 (Miss. 1923).

Where the proof of injury and the cause thereof is not certain and conclusive it is error for the court to direct a verdict. Davis v. Day, 127 Miss. 140, 89 So. 814, 1921 Miss. LEXIS 204 (Miss. 1921).

A peremptory instruction should be given against plaintiff where the evidence shows he acquired the cause of action two days after bringing the suit. St. Paul Fire & Marine Ins. Co. v. W. H. Daniel Auto Co., 121 Miss. 745, 83 So. 807, 1920 Miss. LEXIS 118 (Miss. 1920).

In determining the propriety of a peremptory instruction the evidence is to be taken most strongly against him who asks it. American Trading Co. v. Ingram-Day Lumber Co., 110 Miss. 31, 69 So. 707, 1915 Miss. LEXIS 9 (Miss. 1915); Triangle Amusement Co. v. Benigno, 35 So. 2d 454 (Miss. 1948).

A case occurring within the state of Tennessee in which it held a directed verdict for defendant was error. Turner v. Southern R. Co., 112 Miss. 359, 73 So. 62, 1916 Miss. LEXIS 119 (Miss. 1916).

On a peremptory instruction being granted it is not essential that the jury retire but the verdict may be entered up without the jury’s action. Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736, 1914 Miss. LEXIS 198 (Miss. 1914); Edwards v. Yazoo & M. V. R. Co., 112 Miss. 791, 73 So. 789, 1916 Miss. LEXIS 176 (Miss. 1916), overruled, Hattiesburg Butane Gas Co. v. Griffin, 206 So. 2d 845, 1968 Miss. LEXIS 1590 (Miss. 1968).

If the evidence shows plaintiff entitled to recover on one item sued for he should have peremptory instruction as to such item. McFadden v. Buckley, 98 Miss. 28, 53 So. 351, 1910 Miss. LEXIS 39 (Miss. 1910).

It is error to give peremptory instruction on a point on which the testimony is conflicting. Romano v. Vicksburg R. & L. Co., 39 So. 781 (Miss. 1906); T. B. Bonner Co. v. New Orleans & N. E. R. Co., 40 So. 65 (Miss. 1906); Elledge v. Gray, 41 So. 2 (Miss. 1906); Bell v. Southern R. Co., 94 Miss. 440, 49 So. 120, 1909 Miss. LEXIS 369 (Miss. 1909); Bryant v. Enochs Lumber & Mfg. Co., 94 Miss. 454, 49 So. 113, 1909 Miss. LEXIS 365 (Miss. 1909); Skipwith v. Mobile & O. R. Co., 95 Miss. 50, 48 So. 964, 1909 Miss. LEXIS 253 (Miss. 1909); Byers v. McDonald, 99 Miss. 42, 54 So. 664, 1910 Miss. LEXIS 11 (Miss. 1910); Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394, 1910 Miss. LEXIS 295 (Miss. 1910); Dodge v. Cutrer, 101 Miss. 844, 58 So. 208, 1912 Miss. LEXIS 1 (Miss. 1912); Hardy v. Masonic Ben. Ass'n, 103 Miss. 108, 60 So. 48, 1912 Miss. LEXIS 142 (Miss. 1912); Walker v. L. N. Dantzler Lumber Co., 103 Miss. 826, 60 So. 1013, 1912 Miss. LEXIS 237 (Miss. 1912); Mobile & O. R. Co. v. Carpenter, 104 Miss. 706, 61 So. 693, 1913 Miss. LEXIS 76 (Miss. 1913); Offutt v. Barrett, 106 Miss. 31, 63 So. 333, 1913 Miss. LEXIS 104 (Miss. 1913); Waldrop & Thomas v. O. B. Crittenden & Co., 107 Miss. 595, 65 So. 644, 1914 Miss. LEXIS 124 (Miss. 1914); National Life & Acci. Ins. Co. v. De Vance, 110 Miss. 196, 70 So. 83, 1915 Miss. LEXIS 23 (Miss. 1915); Jones v. Knotts, 110 Miss. 590, 70 So. 701, 1915 Miss. LEXIS 85 (Miss. 1915); Wynnegar v. Southwestern Co., 120 Miss. 675, 83 So. 3, 1919 Miss. LEXIS 122 (Miss. 1919); Buie v. Cloy, 127 Miss. 719, 90 So. 446, 1921 Miss. LEXIS 275 (Miss. 1921); Brenard Mfg. Co. v. Baird, 141 Miss. 110, 106 So. 82, 1925 Miss. LEXIS 208 (Miss. 1925); Yazoo & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393, 1925 Miss. LEXIS 5 (Miss. 1925); Trotter v. Staggers, 201 Miss. 9, 28 So. 2d 237, 1946 Miss. LEXIS 352 (Miss. 1946); Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So. 2d 812, 1948 Miss. LEXIS 341 (Miss. 1948); Jackson City Lines v. Harkins, 204 Miss. 707, 38 So. 2d 102, 1948 Miss. LEXIS 399 (Miss. 1948); Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So. 2d 837, 1957 Miss. LEXIS 324 (Miss. 1957); Walters v. Fine, 232 Miss. 494, 99 So. 2d 669, 1958 Miss. LEXIS 299 (Miss. 1958); Ables v. Curle, 233 Miss. 369, 102 So. 2d 122, 1958 Miss. LEXIS 393 (Miss. 1958).

Court may give peremptory instruction where no other verdict could reasonably have been allowed to stand. Wooten v. Mobile & O. R. Co., 89 Miss. 322, 42 So. 131, 1906 Miss. LEXIS 6 (Miss. 1906); Clark v. J. L. Moyse & Bro., 48 So. 721 (Miss. 1909); Fletcher v. Sovereign Camp, W. O. W., 81 Miss. 249, 32 So. 923, 1902 Miss. LEXIS 131 (Miss. 1902).

A peremptory instruction will be error unless the evidence conceding it to be absolutely true discloses no legal right in the party against whom the instruction is given. Fore v. Alabama & V. R. Co., 87 Miss. 211, 39 So. 493, 1905 Miss. LEXIS 117 (Miss. 1905).

A motion to exclude the evidence and instruct for defendant is analogous to a demurrer to the evidence, and in the main is governed by the same rules. Anderson v. Cumberland Tel. & Tel. Co., 86 Miss. 341, 38 So. 786, 1905 Miss. LEXIS 89 (Miss. 1905).

A motion to exclude the evidence should never be allowed unless the same is plainly and unmistakably insufficient to maintain the issue, nor except in cases where the court would feel constrained to set aside a verdict for the opposite party as unwarranted by the evidence. Anderson v. Cumberland Tel. & Tel. Co., 86 Miss. 341, 38 So. 786, 1905 Miss. LEXIS 89 (Miss. 1905); Flora v. American Express Co., 92 Miss. 66, 45 So. 149, 1907 Miss. LEXIS 9 (Miss. 1907); Illinois C. R. Co. v. Fowler, 123 Miss. 826, 86 So. 460, 1920 Miss. LEXIS 85 (Miss. 1920).

A peremptory instruction should not be given for the defendant if the state of the evidence is such that they would not vacate a verdict predicated thereon in plaintiff’s favor. Rhymes v. Jackson Electric R., L. & P. Co., 85 Miss. 140, 37 So. 708, 1904 Miss. LEXIS 143 (Miss. 1904); Anderson v. Cumberland Tel. & Tel. Co., 86 Miss. 341, 38 So. 786, 1905 Miss. LEXIS 89 (Miss. 1905).

18. Modification or withdrawal.

In a wrongful death action, error could not be predicated upon the fact that the trial judge had granted an instruction requested by appellants only after the appellants had been forced to amend the instruction to obviate an objection by the judge to the form in which it had been presented, the appellants’ acceptance and use of the instruction as amended constituting a waiver of the error, if any, in the trial court’s action is suggesting or requiring the amendment. McCollum v. Randolph, 220 So. 2d 310, 1969 Miss. LEXIS 1452 (Miss. 1969).

Defendant cannot complain of a modified instruction as being erroneous where he used the instruction as modified on the trial. Holmes v. State, 192 Miss. 54, 4 So. 2d 540, 1941 Miss. LEXIS 12 (Miss. 1941).

Judge may modify incorrect instructions presented to conform to law. Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 1932 Miss. LEXIS 52 (Miss. 1932).

An instruction asked and modified by the court and read to the jury by the party requesting it cannot be complained of by said party. Louisville & N. R. Co. v. McCaskell, 98 Miss. 20, 53 So. 348, 1910 Miss. LEXIS 38 (Miss. 1910).

A correct instruction requested and modified by the court may be complained of by a party asking it. Coleman v. Yazoo & M. V. R. Co., 90 Miss. 629, 43 So. 473, 1907 Miss. LEXIS 70 (Miss. 1907).

19. Cure of error.

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court’s error in refusing a jury instruction that the defendant truck driver was negligent as a matter of law due to intoxication was cured by the jury finding in favor of the plaintiff. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

A jury instruction in a medical malpractice case stating that the jury was required to find that the defendant physician deviated from the standard of care required of him and that the deviation was the proximate cause of the plaintiff’s injuries, was not defective for failure to include language requiring the jury to make their findings “from the evidence” where 5 other instructions stated that the jury was to make its findings based upon the evidence. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

Where vice, if any, in appellee’s instruction to the jury was cured by the instructions obtained by the appellant, Supreme Court would overrule suggestion of error. New Orleans & N. R. Co. v. Boliver, 44 So. 2d 527 (Miss. 1950).

Refusal to grant instruction to which one is entitled is cured by granting of instruction of similar import. Koestler v. Burton, 207 Miss. 40, 41 So. 2d 362, 1949 Miss. LEXIS 315 (Miss. 1949), overruled, Vascoe v. Ford, 212 Miss. 370, 54 So. 2d 541, 1951 Miss. LEXIS 458 (Miss. 1951).

In action against charity hospital, instruction of which emphasizes almost to exclusion of any other theory that issue involved is negligence of defendant’s nurses is not cured by instruction for defendant based upon proper theory of liability which involves negligence in selection and employment of nurses when the inconsistency between instructions causes confusion. International Order of Twelve of Knights, etc. v. Barnes, 204 Miss. 333, 37 So. 2d 487, 1948 Miss. LEXIS 371 (Miss. 1948).

Construction of all of the instructions as a whole will not cure an instruction that is contradictory of the other instructions and entirely contrary to the law. Wallace v. Billups, 203 Miss. 853, 33 So. 2d 819, 1948 Miss. LEXIS 329 (Miss. 1948).

Instruction that if the jury were reasonably satisfied from a preponderance of the evidence that the defendant committed the fraud complained of, verdict should be rendered for plaintiff was erroneous, and conflicting irreconcilable instruction, on behalf of defendant, that fraud must be shown by clear and convincing evidence, did not cure the error. Hunt v. Sherrill, 195 Miss. 688, 15 So. 2d 426, 1943 Miss. LEXIS 153 (Miss. 1943).

An instruction contrary to the law of the case may not be cured by other instructions. Alabama & V. R. Co. v. Cox, 106 Miss. 33, 63 So. 334, 1913 Miss. LEXIS 105 (Miss. 1913).

An instruction may be so defective as to constitute reversible error and cannot be cured by another instruction. Mahaffey Co. v. Russell & Butler, 100 Miss. 122, 54 So. 807, 1911 Miss. LEXIS 92 (Miss. 1911); Godfrey v. Meridian R. & L. Co., 101 Miss. 565, 58 So. 534, 1911 Miss. LEXIS 172 (Miss. 1911).

Instruction in res ipsa loquitur case that burden was on defendant to rebut the presumption did not mislead jury when considered with other instructions charging that the burden of proof was upon plaintiff and that he must prove his allegations by a preponderance of the evidence. Alabama & V. R. Co. v. Groome, 97 Miss. 201, 52 So. 703, 1910 Miss. LEXIS 268 (Miss. 1910).

A correct emphatic instruction for proponent of a will correct a slight error in another instruction given for contestants. Hitt v. Terry, 92 Miss. 671, 46 So. 829, 1908 Miss. LEXIS 252 (Miss. 1908).

Error in instructions authorizing jury to assess the damages at whatever amount they might think plaintiff was entitled to receive, was not reversible where another instruction stated the matter correctly as entitling plaintiff only to such damages as testimony might warrant. Mississippi C. R. Co. v. Magee, 93 Miss. 196, 46 So. 716, 1908 Miss. LEXIS 107 (Miss. 1908).

An erroneous modification of an instruction may be cured by another instruction correctly stating the rule of law. American Cent. Ins. Co. v. Antram, 88 Miss. 518, 41 So. 257, 1906 Miss. LEXIS 171 (Miss. 1906); Hitt v. Terry, 92 Miss. 671, 46 So. 829, 1908 Miss. LEXIS 252 (Miss. 1908); Mississippi C. R. Co. v. Magee, 93 Miss. 196, 46 So. 716, 1908 Miss. LEXIS 107 (Miss. 1908); Cumberland Tel. & Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614, 1909 Miss. LEXIS 225 (Miss. 1909); Alabama & V. R. Co. v. Groome, 97 Miss. 201, 52 So. 703, 1910 Miss. LEXIS 268 (Miss. 1910); Yazoo & M. V. R. Co. v. Kelly, 98 Miss. 367, 53 So. 779, 1910 Miss. LEXIS 73 (Miss. 1910); Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355, 1911 Miss. LEXIS 226 (Miss. 1911); Mississippi C. R. Co. v. Pillows, 101 Miss. 527, 58 So. 483, 1911 Miss. LEXIS 167 (Miss. 1911).

20. Subject matter of instructions.

21. —Credibility of witnesses.

The trial court’s instruction in an eminent domain case, that the landowner is a competent witness in his behalf and that the jury should consider his testimony along with all of the rest of the testimony in the case, constituted an improper comment on the weight of the evidence and invaded the province of the jury; the court’s instruction, advising the jury that the opinion of experts as to values in eminent domain cases are “not to be passively received and blindly followed”, denigrated the testimony of the expert witnesses in negative phraseology and was erroneous, particularly in view of the prior instruction in positive phraseology that the jury “should consider” the testimony of the landowner. Mississippi State Highway Com. v. Robertson, 350 So. 2d 1348, 1977 Miss. LEXIS 2247 (Miss. 1977).

An instruction that if the jury should believe from the evidence that any witness who testified in the case was interested in the result of the suit as a party or otherwise, the jury, in determining the credit to be given such witness, might take into consideration such interest as the evidence showed the witness had, violated this section [Code 1942, § 1530], although under the circumstances, the error was harmless. Hoxie v. Hadad, 193 Miss. 896, 11 So. 2d 693, 1943 Miss. LEXIS 18 (Miss. 1943).

Although the disability of a party from testifying because of his interest has been removed by statute, such statute does not justify an instruction to the jury in violation of this section. Hoxie v. Hadad, 193 Miss. 896, 11 So. 2d 693, 1943 Miss. LEXIS 18 (Miss. 1943).

Instruction of falsus in uno, falsus in omnibus, while erroneous, will not constitute reversible error where no jury of fair, honest and reasonable men could have reached a different verdict. Sikes v. Thomas, 192 Miss. 647, 7 So. 2d 527, 1942 Miss. LEXIS 58 (Miss. 1942).

Instruction that if jury believed from preponderance of the evidence that any witness had knowingly, wilfully and corruptly testified falsely as to any material facts in the case, then the jury might disregard the testimony of such witness entirely was erroneous. Dixie Stock Yard, Inc. v. Ferguson, 192 Miss. 166, 4 So. 2d 724, 1941 Miss. LEXIS 19 (Miss. 1941).

Where there was sharp conflict between testimony of plaintiff and defendant’s witness, refusing instruction regarding credit to be given any witness interested in result of suit as party or otherwise was error. Yazoo & M. V. R. Co. v. Alexander, 182 Miss. 654, 179 So. 266, 1938 Miss. LEXIS 131 (Miss. 1938).

Although the jury is the judge of the credibility of witnesses, courts will not permit verdict to stand where testimony of witnesses is arbitrarily disregarded by the jury. Mobile, J. & K. C. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 1908 Miss. LEXIS 218 (Miss. 1908).

An instruction is erroneous which advises the jury that they may reject the entire testimony of a witness who has sworn falsely in any particular without embodying the limitation that such false swearing must have been done wilfully, knowingly and corruptly. Sardis & D. R. Co. v. McCoy, 85 Miss. 391, 37 So. 706, 1904 Miss. LEXIS 142 (Miss. 1904).

22. — Negligence, generally.

A jury instruction in a medical malpractice case which stated that a surgeon is not an insurer or guarantor of favorable results, and that the mere fact that a less than desirable result followed the defendant doctor’s surgery did not, in itself, require the jury to find that the doctor was liable, was proper. Hudson v. Taleff, 546 So. 2d 359, 1989 Miss. LEXIS 299 (Miss. 1989).

A jury instruction in a negligence action arising from an automobile accident that required the defendant to “decrease her speed as may be necessary to avoid colliding with any person, vehicle, or other conveyance on the highway in compliance with legal requirements” was erroneous because it placed a higher burden on the defendant than that of reasonable care. Similarly, an instruction that required the defendant to be “vigilant and to anticipate the presence of vehicles at all times and under all circumstances” was erroneous for the same reason, and also warranted reversal and remand of the case. Turner v. Turner, 524 So. 2d 942, 1988 Miss. LEXIS 201 (Miss. 1988).

Plaintiff’s instruction in wrongful death action that power company was required to maintain its lines in such a manner as to prevent it from being dangerous to the public, was incorrect for if it were required to do so, a power company would be an insurer against all injury to persons and property. Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 1973 Miss. LEXIS 1291 (Miss. 1973).

Instruction that the driver of a motor vehicle does not have the right to a clear and unobstructed highway, but must constantly keep the automobile being then and there driven by her under control, must continue on the alert, must keep a proper lookout ahead and anticipate the presence of other persons and vehicles upon the highway and must, at all times, drive her motor vehicle at such rate of speed to enable her to avoid injury to such person, when they come, or by the exercise of ordinary care, would come within her vision or under her observation, was reversible error. Kimbrough v. L. B. Lampton Co., 283 So. 2d 599, 1973 Miss. LEXIS 1234 (Miss. 1973).

Where a landowner alleged and presented testimony to the effect that a municipality was responsible for sewage invading his land where his cows consumed a quantity of the same resulting in the death of some of them, the landowner made out a case of absolute liability, and the allegation of negligence was surplusage and instructions which may not have adequately defined negligence or set forth acts or omissions constituting negligence were mere surplusage. Town of Fulton v. Mize, 274 So. 2d 129, 1973 Miss. LEXIS 1586 (Miss. 1973).

In an automobile collision case, where there was evidence that the defendant had been speeding and driving while intoxicated, an instruction that liability rested not upon danger but upon negligence was reversible error, since such instruction could have allowed the jury to conclude that although it was dangerous to drive under the influence of intoxicants or at a high rate of speed, that did not mean that the defendant was negligent. Freeze v. Taylor, 257 So. 2d 509, 1972 Miss. LEXIS 1459 (Miss. 1972).

An instruction stating that the jury could not return a verdict against the administratrix if it found that an automobile collision resulted from the negligence of a person other than the deceased driver, but which did not designate any person other than that driver who might be charged with negligence, and did not state alleged acts of negligence, nor define them, was reversibly erroneous. Knighton v. Knighton, 253 So. 2d 846, 1971 Miss. LEXIS 1234 (Miss. 1971).

In a personal injury suit, instructions which required the defendant overtaking motorist under all circumstances to be diligent and to anticipate the presence of others, and placing an absolute duty to pass safely and to avoid injury to others on such defendant, who collided with an oncoming motorist, were erroneous in placing a higher standard or care on the defendant than required by law and providing no factual guide for determining his negligence, since the standard of the law is reasonable care. Acord v. Moore, 243 So. 2d 55, 1971 Miss. LEXIS 1501 (Miss. 1971).

When the plaintiff’s automobile collided with the defendant’s automobile which was stopped on the road as a result of an earlier accident caused by the defendant’s negligence, the court properly denied an instruction requested by the defendant that the driver of plaintiff’s automobile was guilty of negligence as a matter of law, which instruction was based on the common-law rule that the operator of a motor vehicle must drive at such a speed as to be able to stop within the range of his vision, the court noting that the “range of vision” rule was not a hard and fast rule which would preclude recovery in every case. Huff v. Boyd, 242 So. 2d 698, 1971 Miss. LEXIS 1496 (Miss. 1971).

An instruction to the effect that the defendant driver, who claimed that he lost consciousness because of a stroke immediately before the accident, was required to prove that he had taken precautions to guard against the sudden onset of total physical disability was reversible error, where physicians testified that the defendant could not have foreseen the onset of a stroke. Warren v. Pinnix, 241 So. 2d 662, 1970 Miss. LEXIS 1355 (Miss. 1970).

In a malpractice action arising out of the loss of a leg from clotting, the language of an instruction stating that liability must be based upon negligence “in connection with a transfusion procedure” was sufficiently broad to include failing to observe or look at the leg, particularly in view of instructions stating that the patient could recover if it could be found that the doctor “failed to exercise reasonable care under the prevailing circumstances to observe the left leg” while administering the transfusion. Chapman v. Carlson, 240 So. 2d 263, 1970 Miss. LEXIS 1280 (Miss. 1970).

In an action for injuries sustained in a collision which occurred when the defendant motorist was attempting to overtake the plaintiff motorcyclist, an instruction that if the defendant had a right to pass the plaintiff, and he was not speeding, he was not required by law to blow his horn unless the plaintiff was at the time giving a signal indicating his intention to turn from a straight path travel, was erroneous, where it was undisputed that at the time the defendant attempted to overtake the plaintiff the motorcycle was rapidly slowing down, since such activity of the motorcyclist would have indicated to a reasonable and prudent man situated in a following vehicle traveling at a rapid rate of speed that it was reasonably necessary to insure safe operation to give audible warning with his horn. McHale v. Daniel, 233 So. 2d 764, 1970 Miss. LEXIS 1666 (Miss. 1970).

In an action for personal injuries, an instruction that the driver of a pickup truck, which ran over a motorcyclist after he had been thrown to the highway following a collision with the defendant’s automobile, was negligent in the operation of his truck, and if the jury believed from a preponderance of the evidence that the negligence of the truck driver contributed to the motorcyclist’s injury, then the defendant was not responsible for such of the motorcyclist’s injuries which were caused by the negligence of the truckdriver unless the jury should believe from a preponderance of the evidence that such negligence was foreseeable by the defendant, could not be construed as being in effect a peremptory instruction to find for the defendant. Ratliff v. Nail, 231 So. 2d 798, 1970 Miss. LEXIS 1611 (Miss. 1970).

In an action against a garage and a tire company for personal injuries and property damage resulting when a wheel came off, an instruction to the effect that the fact that an accident occurred and the plaintiff was injured constituted no evidence whatever of any negligence on the part of the defendants was improper as removing the circumstance or fact of the accident from consideration by the jury. Bigelow v. Sports Cars, Ltd., 221 So. 2d 108, 1969 Miss. LEXIS 1492 (Miss. 1969).

In an action against a contractor by his laborer for injuries sustained during the construction of a chicken house, a jury instruction to the effect that the jury should find for the laborer if the contractor saw the laborer standing against the wall of the chicken house and failed to stop the truck and continued to back the truck until it pinned the laborer against the wall resulting in bodily injuries to the laborer, was properly given. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

In an action arising from a train-automobile collision, an instruction to the effect that the engineer operating the train had no right under the law to run it across the intersection in question at a greater rate of speed than was reasonably prudent or careful at the time, taking into consideration all of the facts and circumstances, was not erroneous for failing to give the jury any guide to what was a reasonable or prudent rate of speed, where the facts were sufficient to warrant the jury in finding that the intersection was unusually hazardous and that the speed of 52 miles an hour at which the train was proceeding through a town was not a reasonable and prudent rate of speed. Illinois C. R. Co. v. Pilgrim, 220 So. 2d 598, 1969 Miss. LEXIS 1465 (Miss. 1969).

An instruction in an automobile accident case that the operator of a vehicle must at all times drive his motor vehicle at such a rate of speed and in such a manner as to enable him to avoid injury to anyone who might come within the vision of the operator, was subject to criticism in that it virtually made the operator absolutely liable to anyone under any circumstances for any injury occasioned by the use of the vehicle, when the proper standard is the exercise of ordinary care on the part of the automobile driver to observe persons or objects within his traffic lane or in close proximity, and to avoid injury to persons or property within his vision or under his observation. Stewart v. White, 220 So. 2d 271, 1969 Miss. LEXIS 1439 (Miss. 1969).

An instruction that a motorist operating his vehicle on a county road had an absolute duty, before turning across the road into the opposite lane of traffic to use reasonable care to determine if any other vehicles were occupying the opposite lane improperly qualified the word “duty” by the word “absolute.” Niles v. Sanders, 218 So. 2d 428, 1969 Miss. LEXIS 1599 (Miss. 1969).

Court’s instruction for plaintiff that it was the duty of the driver of defendant’s truck at all times to maintain a reasonably safe and proper distance between his vehicle and any vehicle proceeding in front of his truck, that it was his duty to anticipate that preceding vehicles would slow or would stop on the highway, and that it was his duty to keep the truck under reasonable control at all times and to take reasonable precautions commensurate with the type of vehicle and load thereon, imposed no absolute liability on the truckdriver for the consequences of his actions. Bill Hunter Truck Lines, Inc. v. Jernigan, 384 F.2d 361, 1967 U.S. App. LEXIS 4789 (5th Cir. Miss. 1967).

An instruction that the operator of a vehicle continuing its course is bound to have his vehicle under such control that another vehicle, entering the intersection first, can safely make the left turn, is improper as making such operator the insurer of the other’s safety without regard to whether such other had at the time a right to turn across the traffic lane, and without regard to whether or not he was in such close proximity to the intersection as to constitute an immediate hazard. Greenville Ice & Coal Co. v. Brown, 236 Miss. 253, 109 So. 2d 858, 1959 Miss. LEXIS 315 (Miss. 1959).

An instruction that the driver of an oncoming truck who saw a car signalling at a controlled-traffic intersection for a left turn but continued on a green light was bound to know that the car’s driver contemplated turning, is objectionable as ignoring whatever right the truck driver had to assume that the car would wait until the traffic lane was clear. Greenville Ice & Coal Co. v. Brown, 236 Miss. 253, 109 So. 2d 858, 1959 Miss. LEXIS 315 (Miss. 1959).

In a malpractice action, an instruction which announced the rule as to the standards of skill and care required of physicians and surgeons, and further told a jury that if they believed from a preponderance of the testimony that the defendant failed to use and exercise such reasonable and ordinary care, skill and diligence in diagnosing, treating and operating on the plaintiff, and that the plaintiff was injured and damaged thereby, she was entitled to recover, was approved. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

An instruction calling for a court ruling that the driver of a truck which struck a car ahead, halted by a traffic light, when the brakes failed to hold, was negligent as a matter of law, is properly refused as lacking the qualification that the failure of the brakes must have been attributable to negligence. Phillips v. Delta Motors Lines, Inc., 235 Miss. 1, 108 So. 2d 409, 1959 Miss. LEXIS 397 (Miss. 1959).

An instruction that motorist in determining whether he could turn left with reasonable safety, may assume that another is approaching at a lawful speed, is defective in failing to inform jury that motorist could indulge in the assumption only until he knew, or should have known in the exercise of reasonable care, that the speed of the oncoming car was such that the turn could not be safely made. Cothern v. Brewer, 234 Miss. 676, 107 So. 2d 361, 1958 Miss. LEXIS 538 (Miss. 1958).

Instruction as to the duty of a motorist to anticipate the presence on a highway of other persons and vehicles, approved. Williams v. Moses, 234 Miss. 453, 106 So. 2d 45, 1958 Miss. LEXIS 517 (Miss. 1958).

In an action for damages resulting when defendant’s truck-trailer unit ran into the rear end of plaintiff’s truck-trailer unit on the curved portion of the highway, the court did not err in refusing to charge the defendant’s driver with negligence in respect to speeding, overtaking on the right, and following too closely, particularly in view of Code 1942, § 1455. Green Truck Lines, Inc. v. Hooper, 233 Miss. 794, 103 So. 2d 443, 1958 Miss. LEXIS 441 (Miss. 1958).

In an action for injuries sustained by 16-year-old motorcyclist in an intersectional collision with a truck, the driver of which had, contrary to Code 1942, § 8189(a), and a city ordinance, “cut the corner” in making a left turn, instructions permitting the jury to find that the motorcycle had already entered the intersection at the time of the left turn, and was readily visible to the truck driver, was not reversible error, where, under conflicting evidence, the jury could and evidently did, reject the version of defendant’s witnesses. City of Jackson v. Reed, 233 Miss. 304, 103 So. 2d 6, 1958 Miss. LEXIS 380 (Miss. 1958), overruled, City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

In an action for personal injuries and property damages resulting from an intersectional collision, plaintiff’s tendered instruction that every operator of an automobile had the right to assume and to act upon the assumption that persons driving other vehicles would exercise ordinary care and caution in traveling the streets, was properly refused as incomplete since it did not state that the plaintiff could rely upon the assumption that the defendant would exercise ordinary care and caution as she approached the intersection only until plaintiff knew or should have known in the exercise of ordinary care that defendant was not going to slow down or stop. Dame v. Estes, 233 Miss. 315, 101 So. 2d 644, 1958 Miss. LEXIS 382 (Miss. 1958).

An instruction that the law did not countenance blind reliance upon an automobile operator, approaching a stop sign, observing it, so, even if plaintiff was driving his automobile on a though street protected by stop signs, he did not have an unqualified privilege in the right of way, and was under a duty to observe due care in approaching and traversing the intersection, placed undue emphasis on plaintiff’s duty to observe due care to avoid the collision and practically relieved the defendant from any duty to exercise due care at the intersection. Dame v. Estes, 233 Miss. 315, 101 So. 2d 644, 1958 Miss. LEXIS 382 (Miss. 1958).

In an action by property owners against the city, the court properly submitted to the jury the issue as to whether or not the city negligently caused or permitted the accumulation of sand and debris to the extent that it interfered with the natural flow of water and thus caused it to overflow and damage the plaintiff’s property. City of Meridian v. Bryant, 232 Miss. 892, 100 So. 2d 860, 1958 Miss. LEXIS 346 (Miss. 1958).

In view of the uncontradicted evidence that when the motorist first saw the taxicab it had stopped and its headlights and taillights were burning, the trial court erred in submitting to the jury the issue of the alleged negligence of the taxicab driver in stopping upon the highway without giving any warning by hand signals, arm signals, blinker lights or other signals. Snowden v. Skipper, 230 Miss. 684, 93 So. 2d 834, 1957 Miss. LEXIS 410 (Miss. 1957).

In an action by plaintiff for injuries sustained in an intersectional automobile collision, the trial court correctly refused to instruct as to the duty of the defendant to turn to his right and avoid the collision, and to proclaim defendant’s liability if the collision occurred east of the center line of the highway, where the evidence as to whether there was ample room upon the highway for defendant to have made a turn so as to have avoided the accident was conflicting, and defendant’s evidence showed that he was on the right side of the highway at the time of the accident. Moore v. Herman Guy Auto Parts, Inc., 230 Miss. 189, 92 So. 2d 373, 1957 Miss. LEXIS 358 (Miss. 1957).

Trial court did not err in refusing to give an instruction that would have required a holding that defendant, who was traveling along a through highway, was guilty of negligence as a matter of law where the jury could have found that when plaintiff had entered the intersection, defendant was so close at hand that defendant could not possibly have stopped or averted the collision. Walton v. Owens, 244 F.2d 383, 1957 U.S. App. LEXIS 3100 (5th Cir. Miss. 1957).

Instructions in suit to recover for injuries sustained by defendant’s employee that defendant owned its employee the nondelegable duty to exercise reasonable or ordinary care to furnish him with a reasonably safe place in which to work and with reasonably safe appliances upon and about which to work, though abstract, was not objectionable. Johns-Manville Products Corp. v. McClure, 46 So. 2d 539 (Miss. 1950).

In action for damages to automobile arising out of ramming by truck from rear, instruction that burden of proof is upon plaintiff to prove defendant was negligent “in the manner charged in the declaration,” is erroneous because referring jurors to declaration for hypothesis upon which to rely, but not cause for reversal of case when other instructions, not in conflict therewith, are granted which incorporate in them the absent hypothesis omitted from this erroneous instruction. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In an action for damages caused by the collapse of a building, the plaintiff is entitled to an instruction that mere proof of the collapse places a burden on the owner to make some explanation. Bloch v. Brown, 201 Miss. 653, 29 So. 2d 665, 1947 Miss. LEXIS 435 (Miss. 1947).

When negligence is the subject of the action, the instructions must confine the verdict to the ground or grounds of negligence alleged and in support of which there has been substantial proof. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

An instruction allowing jury to find negligence without giving a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence, is erroneous. New Orleans & N. E. R. Co. v. Miles, 197 Miss. 846, 20 So. 2d 657, 1945 Miss. LEXIS 316 (Miss. 1945).

An instruction on negligence of employees of a railroad company may be made in general terms with reference to employees. St. Louis & S. F. R. Co. v. Ault, 101 Miss. 341, 58 So. 102, 1911 Miss. LEXIS 154 (Miss. 1911).

23. —Contributory negligence.

When a comparative negligence instruction is given, the jury should be instructed as to an alternative format for the rendering of a comparative negligence verdict which provides for an apportionment of fault or damages if both parties are found to be negligent. Burton v. Barnett, 615 So. 2d 580, 1993 Miss. LEXIS 90 (Miss. 1993).

In a wrongful death action arising from a collision between a truck and the decedent’s automobile, the trial court erred in granting a comparative negligence instruction where the only act of negligence claimed by the defendant truck driver was that the decedent drove her car onto his side of the highway since, if the jury had found the decedent negligent in driving onto the wrong side of the road, they would have been duty bound to find for the defendant. Hasson v. Hale, 555 So. 2d 1014, 1990 Miss. LEXIS 6 (Miss. 1990).

In an action arising out of an intersection accident, it was error to grant the defendant a comparative negligence instruction, based on the defendant’s contention that the plaintiff was traveling at an excessive rate of speed at the intersection, where it was evident that the sole proximate cause of the collision was that the defendant ran a red light. Biddy v. State, 246 So. 2d 94, 1971 Miss. LEXIS 1393 (Miss. 1971).

An instruction given under the comparative negligence statute which does not define or set out any act which would constitute negligence on the part of either the plaintiff or the defendant is erroneous as a roving instruction and constitutes reversible error unless there is some other instruction which furnishes the jury a guide to the facts which would constitute negligence. Rayborn v. Freeman, 209 So. 2d 193, 1968 Miss. LEXIS 1446, 1968 Miss. LEXIS 1447 (Miss. 1968).

To instruct the jury for the plaintiff in an automobile collision action that the jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

In action for damages to automobile arising out of ramming by truck, instruction that even if jury believed from preponderance of evidence that defendant was guilty of negligence, jury also believed that plaintiff was negligent, jury should find for defendant or diminish plaintiff’s actual damages in such proportion as plaintiff’s negligence may have contributed to accident is erroneous and should not have been given. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

In action for damages to automobile arising out of ramming by truck, instruction that if jury believed from evidence that plaintiff and defendant were equally negligent, jury should find for defendant, is erroneous, for if both were negligent equally, defendant would not be absolved from liability altogether, but plaintiff’s damages would be reduced by fifty per cent. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

The driver of an automobile, the windshield of which was covered with snow except for a small place which provided only vision straight ahead, who stopped before going onto a highway and then proceeded was not entitled to an instruction on contributory negligence of the driver of a vehicle traveling the highway who sounded his horn within 300 feet of the intersection upon seeing the stopped car. Trewolla v. Garrett, 200 Miss. 563, 27 So. 2d 887, 1946 Miss. LEXIS 323 (Miss. 1946).

An instruction allegedly ignoring the possibility of contributory negligence is not erroneous if neither party requested instructions on that point. Murphy v. Burney, 27 So. 2d 773 (Miss. 1946).

A charge given sufficiently covering the law of comparative negligence justifies a refusal to give another on the same point. Illinois C. R. Co. v. Nixon, 109 Miss. 308, 68 So. 466, 1915 Miss. LEXIS 155 (Miss. 1915).

The court cannot limit recovery on account of contributory negligence, where neither party requests such instruction. 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).

Where neither party has requested an instruction with reference to diminishing damages on account of contributory negligence the plaintiff cannot complain at the failure of the court to give such instructions thereon. Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459, 1914 Miss. LEXIS 279 (Miss. 1914).

A case in which an instruction should have been given with reference to contributory negligence reducing damages sustained. Illinois C. R. Co. v. Handy, 108 Miss. 421, 66 So. 783, 1914 Miss. LEXIS 210 (Miss. 1914).

Unless defendant is guilty of gross negligence mere contributory negligence will not prevent recovery. Yazoo & M. V. R. Co. v. Carroll, 103 Miss. 830, 60 So. 1013, 1912 Miss. LEXIS 238 (Miss. 1912).

An instruction restricting a defense to contributory negligence held erroneous in that it withdrew from the jury the defense of due care and precaution on the part of the defendant. Yazoo & M. V. R. Co. v. Bruce, 98 Miss. 727, 54 So. 241, 1910 Miss. LEXIS 116 (Miss. 1910).

The jury must determine the question of contributory negligence of a child from his intelligence, age, knowledge and experience and it is error to restrict them to his intelligence. Potera v. Brookhaven, 95 Miss. 774, 49 So. 617, 1909 Miss. LEXIS 284 (Miss. 1909).

Where in an action for injuries, plaintiff’s evidence and all just inferences to be drawn therefrom show that his own negligence contributed to produce the injury, it is the duty of the court, though the defendant introduces no proof to support a plea of contributory negligence, to instruct the jury, as a matter of law, that plaintiff cannot recover. Bridges v. Jackson E. R. L. & P. Co., 86 Miss. 584, 38 So. 788, 1905 Miss. LEXIS 90 (Miss. 1905).

24. —Proximate cause.

In a passenger action for injuries sustained in an automobile accident, an instruction to the effect that the jury might not return a verdict against the administratrix of the deceased driver if it should find from the evidence that the collision in question resulted solely, directly, and proximately from the negligence of a person other than the deceased driver was erroneously granted, since it did not designate any person other than the driver who might be charged with negligence, nor state the alleged acts of negligence, nor define them, leaving the jury to grope without direction for some unnamed person, guilty of some unexplained action which the jury might in its own fashion consider to be negligence. Dempsey v. Knighton, 244 So. 2d 721, 1971 Miss. LEXIS 1338 (Miss. 1971).

Where the defendant’s disabled vehicle was in the highway as a result of an earlier collision caused by his negligence, and he had made no attempt to move it or warn oncoming traffic of its presence, an instruction for the plaintiff that the defendant’s failure to remove or attempt to remove his automobile from the highway or to warn oncoming automobiles constituted negligence proximately causing or contributing to the automobile accident in question was properly allowed. Huff v. Boyd, 242 So. 2d 698, 1971 Miss. LEXIS 1496 (Miss. 1971).

In an automobile passenger’s action for injuries, an instruction that if the jury should believe from a preponderance of the evidence that certain facts were true, then it could infer that the driver of the automobile was negligent and if such negligence proximately contributed to the accident then it should find for the plaintiff, should not have been given since the case was an inappropriate one for the application of the doctrine of res ipsa loquitur, but the instruction was not harmful to the defendant where the undisputed testimony and the physical facts overwhelmingly showed that the driver was negligent. Martin v. Capitol Broadcasting Co., 233 So. 2d 217, 1970 Miss. LEXIS 1656 (Miss. 1970).

In an action brought for the alleged wrongful death of a minor bicyclist, an instruction granted defendant motorist to the effect that in event the jury found that no negligence on defendant’s part had proximately caused or contributed to bicyclist’s death, the occurrence insofar as defendant was concerned was an unavoidable accident for which he was not liable, did not incorrectly state the applicable law. McCollum v. Randolph, 220 So. 2d 310, 1969 Miss. LEXIS 1452 (Miss. 1969).

In a pedestrian’s action for injuries sustained when he was struck by an automobile as he crossed a street, an instruction was erroneous which permitted the jury to rove the entire field of automobile negligence without regard to whether the negligence it might seize upon for a verdict was a proximate cause of the accident sued upon. Stewart v. White, 220 So. 2d 271, 1969 Miss. LEXIS 1439 (Miss. 1969).

An instruction which simply instructs the jury that if it believes from a preponderance of the evidence that defendant was negligent and his negligence was the proximate cause of the accident, the jury should find for the appellee, is fatally erroneous, for it wholly fails to designate what constitutes negligence so that the jury has no criteria by which it could determine whether or not the appellant was negligent. Mills v. Balius, 254 Miss. 353, 180 So. 2d 914, 1965 Miss. LEXIS 954 (Miss. 1965); Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

An instruction for the defendant in a wrongful death action that if the jury believes from the evidence that the injury and subsequent death of the plaintiff was proximately caused by the negligence, if any, of the plaintiff, then the jury should return a verdict for the defendant, is an erroneous instruction and in conflict with that provision of Code 1942, § 1454. Hogan v. Cunningham, 252 Miss. 216, 172 So. 2d 408, 1965 Miss. LEXIS 1092 (Miss. 1965).

An instruction in a case which the driver was confronted with an emergency, that it was the driver’s duty to keep truck under reasonable control considering nature of highway and existing circumstances, and that failure to do so, if a proximate cause of collision, warranted a verdict for the other party, held in error. Summers v. Johnson, 236 Miss. 826, 105 So. 2d 451, 1958 Miss. LEXIS 280 (Miss. 1958).

An instruction that the driver of an automobile about to enter the highway from a private driveway must give the right of way to all vehicles approaching so closely on the highway as to constitute an immediate hazard, and, if the defendant negligently entered the highway from a private driveway at the time when plaintiff was approaching so closely as to constitute a hazard, and negligently failed to yield the right of way to the plaintiff, and such negligence, if any, proximately caused or contributed to the collision and to the damages, the jury should find for the plaintiff, properly presented the issues to the jury. Stewart v. Madden, 233 Miss. 206, 101 So. 2d 353, 1958 Miss. LEXIS 372 (Miss. 1958).

Where a motorist had approached an intersection with signal lights flashing red in her direction, and failed to stop before entering the intersection, the court properly submitted to the jury the issue as to whether such negligence was a sole cause of the collision. Bates v. Walker, 232 Miss. 804, 100 So. 2d 611, 1958 Miss. LEXIS 333 (Miss. 1958).

An instruction that if the driver of the car in which the plaintiff was riding negligently attempted to pass the defendant’s vehicle within 100 feet of an intersection, and such negligence was the sole proximate cause of the accident, the jury could find for the defendant, was correct, where the defendant’s proof showed that the attempt to pass was made within 50 or 60 feet of the intersection, and the intersection involved was one coming within the contemplation of the statute. Clark v. Mask, 232 Miss. 65, 98 So. 2d 467, 1957 Miss. LEXIS 445 (Miss. 1957).

The trial court committed reversible error in instructing that the driver of the car in which plaintiff was riding was guilty of negligence in driving his car into the intersection of a through highway without looking to the north immediately before doing so, and that judgment should be for defendants if such negligence were the proximate cause of the collision, where both plaintiff and the driver had testified that before entering the intersection they had looked both to the north and to the south. Moore v. Herman Guy Auto Parts, Inc., 230 Miss. 189, 92 So. 2d 373, 1957 Miss. LEXIS 358 (Miss. 1957).

Trial court’s instruction that the uncontradicted proof showed that the truck owned and operated by the defendant was not equipped with clearance lights and sidemarker lights and reflectors as required by law, and that such failure to have the truck equipped was negligence on the part of the defendants, and that if such negligence proximately contributed to the collision, the jury should find for plaintiff, was not error, even though it may have had the effect of prejudicing the jury as against the defendants, since established facts can properly be assumed in the instruction. Arnold v. Reece, 229 Miss. 862, 92 So. 2d 237, 1957 Miss. LEXIS 335 (Miss. 1957).

Instruction that defendant driver was negligent in cutting corner of intersection and in failing to be on lookout in entering intersection so that jury should find for plaintiff motorist if they believed such negligence to be the proximate cause of a collision was improperly refused where there was nothing to prevent the two drivers from seeing the other’s vehicle. Robinson v. Colotta, 199 Miss. 800, 26 So. 2d 66, 1946 Miss. LEXIS 248 (Miss. 1946).

25. —Assumption of risk.

An instruction as to assumption of the risk, which failed to include the essential requirements that the plaintiff passenger must have known and appreciated the risk before assuming it, was prejudicially erroneous. Knighton v. Knighton, 253 So. 2d 846, 1971 Miss. LEXIS 1234 (Miss. 1971).

In a passenger action for injuries sustained in an automobile accident, an assumption of the risk instruction that if the jury should believe that the driver on the occasion in question was under the influence of intoxicating alcohol or beer, that the passenger plaintiff assumed the risk of riding in the vehicle, was prejudicially erroneous where there was at most only a possible inference that the driver of the automobile was intoxicated, and where the instruction omitted the essential requirement that a person must know and appreciate a risk before he can assume it. Dempsey v. Knighton, 244 So. 2d 721, 1971 Miss. LEXIS 1338 (Miss. 1971).

In an action by an automobile passenger for personal injuries, an instruction that if the plaintiff voluntarily or knowingly placed himself in defendant’s automobile when the defendant was intoxicated to the extent that it was an unsafe venture for the plaintiff, then the plaintiff assumed the risk embraced in the defendant’s intoxicated condition was erroneous in failing to state that the plaintiff must know and understand the risk he is incurring and the plaintiff’s choice to incur the risk must be free and voluntary. Griffin v. Holliday, 233 So. 2d 820, 1970 Miss. LEXIS 1684 (Miss. 1970).

In an action against a contractor by his laborer for injuries sustained during the construction of a chicken house when the contractor backed a truck into the laborer, an instruction that if the jury should find that the plaintiff laborer voluntarily and knowingly placed himself in a position of danger, then the plaintiff assumed the risk of injury and could not recover, was properly refused because the doctrine of assumption of the risk is not in force as between a master and servant. Smith v. Jones, 220 So. 2d 829, 1969 Miss. LEXIS 1479 (Miss. 1969).

An instruction in an action by one who slipped on a wet floor in a store entrance that plaintiff assumed such risks as were obvious to a person of ordinary intelligence, and that if plaintiff saw, knew and appreciated the danger, or should have done so by the exercise of reasonable care, the finding should be for the defendant, is erroneous as eliminating the distinction between assumption of risk and contributory negligence and as denying the jury’s right to weigh the respective negligence, if any, of the parties. Wallace v. J. C. Penney Co., 236 Miss. 367, 109 So. 2d 876, 1959 Miss. LEXIS 328 (Miss. 1959).

In employee’s suit against employer for personal injuries where evidence disclosed that injury resulted from negligence of fellow servants brought about by the direct order of the foreman, instruction eliminating entirely the question of whether the negligent order of the foreman was either the proximate cause or a contributing cause to the accident and injury, and tending to mislead the jury to apply the doctrine of assumption of risk, and to use contributory negligence as a complete bar to the action was error. Oakes v. Mohon, 208 Miss. 478, 44 So. 2d 551, 1950 Miss. LEXIS 266 (Miss. 1950).

26. —Sudden emergency.

Evidence that the decedent, after weaving back and forth over the centerline while proceeding southward, got into the northbound lane, and that the defendant, going northward, attempted to go into the southbound lane to avoid a collision but the decedent drove head on into the front of the defendant’s vehicle, indicated that the defendant was confronted with a sudden emergency not of his making in which he was called on to take quick action in a hazardous situation, and justified the giving of the sudden emergency instruction as to the reduced standard of care required of a motorist in such a situation. Graves v. Hart's Bakery, Inc., 241 So. 2d 673, 1970 Miss. LEXIS 1360 (Miss. 1970).

In an action for injuries sustained in a three vehicle collision, it was error to instruct the jury on the sudden emergency doctrine with respect to the defendant motorist, where it was shown that just before striking the plaintiff’s vehicle, the defendant had been following behind at a distance of only 36 feet while traveling 45 miles per hour in violation of Code 1942, § 8188. Dailey v. Acme Finance Corp., 234 So. 2d 902, 1970 Miss. LEXIS 1423 (Miss. 1970).

In an action for injuries sustained in a three vehicle collision, the giving of an instruction on the sudden emergency doctrine when it was shown that the motorist with respect to whom the instruction was given had, prior to striking the vehicle from the rear, observed the brakelights of vehicles ahead but continued to proceed at 50 miles per hour as he entered the westbound lane to pass, and had applied his brakes only when the vehicle ahead of him bounced across the center line after striking the vehicle in front of it, and thus had a substantial role in creating the circumstances which he maintained constituted an emergency. Dailey v. Acme Finance Corp., 234 So. 2d 902, 1970 Miss. LEXIS 1423 (Miss. 1970).

In a suit for the death of a child who had run into the street from behind a parked truck and had been struck by the defendant’s automobile, the jury was properly instructed that a person confronted with a sudden emergency not of his own making is held only to the degree of care of a reasonable and prudent man in such emergency. Young v. Schwarz, 230 So. 2d 583, 1970 Miss. LEXIS 1560 (Miss. 1970).

An instruction as to the liability of a motorist to a pedestrian who unexpectedly walks in front of his car is not proper in a case in which the pedestrian had almost completed the crossing of a three-lane highway and was within 3 feet of the curb. Williams v. Moses, 234 Miss. 453, 106 So. 2d 45, 1958 Miss. LEXIS 517 (Miss. 1958).

In an action against the driver by a share-the-expense guest for injuries allegedly sustained when the automobile’s foot brake failed to function properly resulting in the driver’s automobile colliding into the rear of another automobile that had come to a stop, a sudden emergency instruction was erroneous which omitted any reference to the defendant’s duty after the emergency arose to exercise such care as a reasonably prudent and capable driver would use under the unusual circumstances. Moore v. Taggart, 233 Miss. 389, 102 So. 2d 333, 1958 Miss. LEXIS 396 (Miss. 1958).

27. —Damages; amount of recovery.

An instruction on present net cash value of lost earnings is appropriate where there is evidence to support it. If the defendant wishes the jury instructed on such matters, it is incumbent upon him or her to specifically request it, either by an instruction on his or her own, or by being added to one of the plaintiff’s instructions. In the absence of specifically calling the matter to the attention of the circuit judge and tendering a requested instruction embracing this issue, any error is waived. Young v. Robinson, 538 So. 2d 781, 1989 Miss. LEXIS 103 (Miss. 1989).

A trial court in a personal injury action committed reversible error in refusing a requested jury instruction stating that an award for damages would not be subject to any income taxes and such taxes should not be considered in fixing the amount of the award. Seaboard S. R., Inc. v. Cantrell, 520 So. 2d 479, 1987 Miss. LEXIS 2981 (Miss. 1987).

Instructions in personal injury action which not only authorized the jury to take into consideration the decreased purchasing power of the dollar, but also to consider the increased costs of living, were calculated to encourage the jury to increase the damages based on matters aliunde of the record. Atwood v. Lever, 274 So. 2d 146, 1973 Miss. LEXIS 1595 (Miss. 1973).

In an action on a policy to recover for the death of a horse, a judgment in the plaintiff’s favor would be reversed as to amount of liability, where by its terms the policy was to cover the actual cash value of the horse, not to exceed $4,000, and the evidence was conflicting as to the actual value, but the jury was instructed that if it should find for the plaintiff it should assess damages in the amount of $3,000 and the jury did return a verdict in that amount. St. Louis Fire & Marine Ins. Co. v. Lewis, 230 So. 2d 580, 1970 Miss. LEXIS 1559 (Miss. 1970).

In a suit for recovery under a wind and rainstorm policy, an instruction that if the insureds’ roof was damaged by wind so that rain entered the house, it was insureds’ duty to mitigate damages by using reasonable diligence to have the damages remedied, was erroneously refused in view of evidence that after the roof was damaged the insureds allowed the roof to remain damaged for two years, thereby allowing additional damages to the exterior and the interior of the house. White v. Pascagoula Civil Service Com., 222 So. 2d 131, 1969 Miss. LEXIS 1517 (Miss. 1969).

In a suit for damages for personal injuries, an instruction to the effect that the plaintiff could not prevail unless he proved by the preponderance of evidence that he sustained all of the injuries described in his declaration and that such injuries produced all of the claimed results, was erroneous and could, together with pictures taken during a surveillance of the plaintiff two weeks before trial, mislead the jury, where the case was tried nearly 18 months after the accident. Price v. Hearin-Miller Transporters, Inc., 220 So. 2d 813, 1969 Miss. LEXIS 1468 (Miss. 1969).

An instruction for the plaintiff, the condemnor of a right of way for a utility easement, that the public use to which the lands of the defendant are to be put is that of a right-of-way easement over and across the land and is not a fee simple taking, and that in arriving at the verdict as to the amount of damages the jury should take into consideration the fact that the taking is for a limited purpose, leaving the defendant right to use the land in a manner not inconsistent with the easement, was properly refused for the reason that it would have singled out a factor tending to reduce damages. Mississippi Power Co. v. Head, 218 So. 2d 24, 1968 Miss. LEXIS 1264 (Miss. 1968).

In an action for damages resulting to plaintiffs’ property, allegedly resulting from a fill placed by a railroad company upon its land and the edge of plaintiffs’ lot, which caused the discharge upon plaintiffs’ tract of excess surface waters, the sole instruction on damages which told the jury that plaintiffs were not required to prove their damages with mathematical exactness, but that it could take into consideration all the evidence touching the extent, kind and character of the injuries and damages sustained, if any, by the plaintiffs, and from such evidence fix the amount of the damages, if any, failed to furnish the jury with any guide pertaining to the well-established rule of measurement of damages in surface water cases, and was erroneous. Alabama G. S. R. Co. v. Broach, 238 Miss. 618, 119 So. 2d 923, 1960 Miss. LEXIS 446 (Miss. 1960).

An instruction in a trespass action that plaintiff, if successful should be compensated for damage to his fences, for harassment and inconvenience and necessary labor to rebuild fences, and his trips and expenses to see defendant regarding such trespasses, and such monetary value as will compensate him for the inconvenience and labor caused by the trespasses, is objectionable as pyramiding damages and permitting punitive damages without proper qualification. Day v. Hamilton, 237 Miss. 472, 115 So. 2d 300, 1959 Miss. LEXIS 493 (Miss. 1959).

Instructing jury in death action that they may consider the present net cash value of deceased’s life at the time of death is not error. Ashcraft v. Alford, 236 Miss. 25, 109 So. 2d 343, 1959 Miss. LEXIS 289 (Miss. 1959).

In a malpractice action, an instruction was approved which stated that if the jury found for plaintiff they should fix the amount of damages at such sum as would be fair and reasonable compensation for plaintiff’s injuries proximately resulting from defendant’s negligence, if any, and could give consideration to hospital bills, doctor bills, past, present and future pain and suffering, permanent disfigurement, humiliation and embarrassment, and impairment of earning capacity, if any, in each instance. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that the Highway Commission could construct the interchange on its right of way without payment of damages to an abutting property owner was erroneous, where the construction included a high embankment near the owner’s land, and the commission had revoked the owner’s permit to enter the highway directly, so that his right of access to the highway was impaired. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that abutting landowner was not entitled to damages resulting solely from inconvenience in entering and leaving his remaining property, provided that the public at large suffered the same inconvenience, was erroneous. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In an action by a seller for the unpaid balance of a note given by the purchaser as part payment of a hay baler, purchaser’s instructions authorizing the jury to deduct all damages suffered by the purchaser from the use of the machine, and which told the jury that if the purchaser was damaged in a sum equal to the balance alleged to be due under the contract, it should find for the defendant, was erroneous as failing to submit to the jury any proper measures of damages for a breach of warranty by the seller. Delta Motors, Inc. v. Childs, 233 Miss. 125, 101 So. 2d 527, 1958 Miss. LEXIS 364 (Miss. 1958).

In an action by a seller for the unpaid balance on a note given by the purchaser as part payment for a hay baler, wherein the purchaser defended upon the ground of a breach of warranty on the part of the seller, an instruction that told the jury to find for the purchaser unless it believed that the purchaser was indebted to the seller in the amount sued for was misleading, since the evidence as to the breach of warranty could have justified a finding for a less amount. Delta Motors, Inc. v. Childs, 233 Miss. 125, 101 So. 2d 527, 1958 Miss. LEXIS 364 (Miss. 1958).

An instruction authorizing the recovery of both attorney’s fees and damages for lost time and inconvenience if the plaintiff was entitled to possession of the tractor, regardless of whether there was any fraud, malice, oppression or wilful wrong, was clearly erroneous in a replevin action. Ainsworth v. Blakeney, 232 Miss. 297, 98 So. 2d 880, 1957 Miss. LEXIS 476 (Miss. 1957).

In an action by an administratrix to recover for the wrongful death of her eight-year-old decedent, who was killed when struck by a truck, the trial court’s instruction that if the jury should find for the plaintiff, they might consider as a proper element of damages the present net cash value of the life of deceased, if any, at the time of her death, was approved. Reed v. Eubanks, 232 Miss. 27, 98 So. 2d 132, 1957 Miss. LEXIS 441 (Miss. 1957).

An instruction for plaintiff in an action for damages for property and personal injuries sustained in a motor vehicle accident, detailing the elements of damages the jury might consider if it found for plaintiff and which then recited “but not to exceed the amount sued for by plaintiff,” was not erroneous where no question was raised as to the amount of the verdict. Commercial Credit Corp. v. Smith, 231 Miss. 574, 96 So. 2d 911, 1957 Miss. LEXIS 539 (Miss. 1957).

In an appeal from the award of damages by a special court of eminent domain for the taking of a public highway right of way through landowner’s land, trial court correctly instructed for the county that the jury in arriving at its verdict should not consider any elements of inconvenience or other elements which were speculative and remote. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

In a stockowner’s replevin action wherein defendant counterclaimed for damages caused by trespassing, an instruction which might have misled the jury to believe that they were authorized to assess the plaintiff with the value of his own cattle in addition to, and as a part of, the allowance to defendant of damages, was error. Galloway v. Brown, 230 Miss. 471, 93 So. 2d 459, 1957 Miss. LEXIS 390 (Miss. 1957).

In a stockowner’s replevin action wherein the landowner cross-claimed for damages caused by trespassing, court’s instruction that the jury might find for the defendants and award them actual damages for injuries to crops, fences and lands, and if it believed that former trespasses, known to the plaintiff, had occurred, the amount of actual damages awarded should be double, was error where plaintiff’s 23 head of cattle had entered and grazed upon a portion of an oat field which was planted for and used only as a pasture for cattle belonging to defendant and others, since, under the circumstances, double damages was not allowable under Code 1942, § 4871. Galloway v. Brown, 230 Miss. 471, 93 So. 2d 459, 1957 Miss. LEXIS 390 (Miss. 1957).

In an action brought under Code 1942, § 6336-20, on behalf of 15-year-old school girl passenger injured in a collision between two school buses, owned and operated by the defendant, the trial court did not err in instructing that the jury might consider as an element of damage the disfigurement of the plaintiff, if any, caused by her injuries. Rankin County v. Wallace, 230 Miss. 413, 92 So. 2d 661, 1957 Miss. LEXIS 384 (Miss. 1957).

In an action of bastardy, the court’s instruction that the jury’s verdict might read “We, the jury, find for the plaintiff and assess her damages at $ _______________ for the support and maintenance of the child to this date, and the additional amount of $ _______________ per _______________ (month, quarter or annum) from this date until said child shall reach the age of 18 years,” was not erroneous as to form. Thomas v. Cook, 229 Miss. 458, 91 So. 2d 275, 1956 Miss. LEXIS 627 (Miss. 1956).

Although every factor affecting a depreciated market value may be put in evidence, they should not be made subject of special comment in instructions because this results in a duplication of damages. Wheeler v. State Highway Com., 212 Miss. 606, 55 So. 2d 225, 1951 Miss. LEXIS 490 (Miss. 1951).

Instruction in employee’s suit for injuries, indicating form of verdict and leaving amount blank for jury to fill in was not reversible error where amount awarded was less than that sued for. Johns-Manville Products Corp. v. McClure, 46 So. 2d 539 (Miss. 1950).

Instructions in employee’s suit to recover damages for injuries to the effect that jury can assess damages in such amount as jury may believe from preponderance of evidence plaintiff may have sustained including pain and suffering, loss of earning power, and injury to his body, was proper. Johns-Manville Products Corp. v. McClure, 46 So. 2d 539 (Miss. 1950).

In death action instruction authorizing jury to consider on question of damages the value of services of deceased to her husband, and the value of her association, society, and companionship to her husband and children, was proper. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So. 2d 436, 1950 Miss. LEXIS 380 (Miss. 1950).

In action for damages for injuries sustained in automobile collision, refusal of instruction limiting recovery for medical bills to $205.00, amount expended by plaintiff up to time of trial, is correct because instruction would have prohibited jury from taking into consideration any medical expenses which plaintiff might reasonably be expected to have to pay in future. Kouvarakis v. Hawver, 208 Miss. 697, 45 So. 2d 278, 1950 Miss. LEXIS 288 (Miss. 1950).

In instructions on amount of damages recoverable, the use of expression authorizing recovery not to exceed stated amount sued for endangers verdict and may result in its reversal. St. Louis S. F. R. Co. v. Dyson, 207 Miss. 639, 43 So. 2d 95, 1949 Miss. LEXIS 376 (Miss. 1949).

In action brought under Federal Employers’ Liability Act, instruction for plaintiff employee authorizing recovery of damages not to exceed stated amount sued for does not require reversal when damages awarded are not excessive, in view of fact that Supreme Court of United States has refused to condemn similar instructions in federal courts. St. Louis S. F. R. Co. v. Dyson, 207 Miss. 639, 43 So. 2d 95, 1949 Miss. LEXIS 376 (Miss. 1949).

Instruction to jury to bring in verdict, once liability is found, “not in excess of Fifteen Thousand Dollars, as alleged in the declaration,” should not be given in action for damages for battery in which conflict in testimony is sharp and there is no sufficient basis for so substantial an award for personal injury. Hawkins v. Stringer, 205 Miss. 121, 38 So. 2d 454, 1949 Miss. LEXIS 417 (Miss. 1949).

In action for damages for battery, it is error to refuse instruction for defendant which denies to plaintiff any right to recover for permanent injuries and impaired eyesight when there is no substantial evidence of such injuries. Hawkins v. Stringer, 205 Miss. 121, 38 So. 2d 454, 1949 Miss. LEXIS 417 (Miss. 1949).

Plaintiff could not complain of instruction limiting amount of recovery on loss of automobile to price fixed by the Office of Price Administration, where he asked for and obtained such instruction rather than one authorizing a verdict for the actual or replacement value of the automobile under all the evidence. St. Paul Fire & Marine Ins. Co. v. Staten, 200 Miss. 197, 26 So. 2d 538, 1946 Miss. LEXIS 283 (Miss. 1946).

In depositor’s action against bank for damage to credit and reputation resulting from improper dishonoring of checks, where jury first returned verdict for plaintiff but assessed his damages at “nothing,” court’s oral statement to jury to “return to your room and find a verdict for something,” held reversible error. Weaver v. Grenada Bank, 180 Miss. 876, 179 So. 564, 1938 Miss. LEXIS 47 (Miss. 1938).

In action for death of school bus passenger in crossing collision, where jury returned two separate verdicts, one against railroad for $8,500 and other against bus driver for $1,000, returning verdicts to jury for further consideration, with directions that one verdict for entire sum be rendered, held proper. Mississippi C. R. Co. v. Roberts, 173 Miss. 487, 160 So. 604, 1935 Miss. LEXIS 204 (Miss. 1935).

It is erroneous to instruct the jury that it may find in any amount not exceeding the amount sued for, where the amount sued for is excessive damages. Gulfport & Mississippi Coast Traction Co. v. Keebler, 130 Miss. 631, 94 So. 795, 1922 Miss. LEXIS 236 (Miss. 1922).

28. —Punitive damages.

While punitive damages are not always appropriate whenever an insurance policy contains a provision that is invalid under state law, an insurer is not entitled to a peremptory instruction on liability to the effect that the insurer can never be liable when it acts in accordance with the provisions of its policy, regardless of their invalidity. Independent Life & Accident Ins. Co. v. Peavy, 528 So. 2d 1112, 1988 Miss. LEXIS 253 (Miss. 1988).

In an action for false arrest and malicious prosecution, an instruction that the jury might determine malice from a preponderance of the evidence, from the defendant’s conduct and declaration, and from the zeal and activity of the defendant in pushing the prosecution against the plaintiff, was a comment on the testimony and so confusing that the jury might easily reach the conclusion that it was a peremptory instruction to find punitive damages. Allen v. Ritter, 235 So. 2d 253, 1970 Miss. LEXIS 1436 (Miss. 1970).

In a suit for damages arising out of the sale of an automobile, instructions requested by the plaintiff relating to punitive or exemplary damages were properly refused by the trial judge where the instructions required that the plaintiff prove only by a preponderance of the evidence that fraud was perpetrated upon her, since where fraud is charged it must be shown by evidence which is clear and more convincing than a mere preponderance. Brewster v. Bubba Oustalet, Inc., 231 So. 2d 189, 1970 Miss. LEXIS 1577 (Miss. 1970).

Punitive damages are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard of the safety of others, and where the evidence does not disclose such a degree of negligence on the part of the defendant the trial court should instruct the jury that no punitive damages could be awarded. Ulmer v. Bunner, 190 So. 2d 448, 1966 Miss. LEXIS 1389 (Miss. 1966).

In a personal injury damage suit growing out of an accident caused by the backing of a truck over the body of a 33-month-old girl, since the negligence on the part of the defendant driver was not so reckless as to evince disregard for the rights of others or so gross as to be equivalent to a wilful wrong, defendants were entitled to an instruction that they were not liable for punitive damages, even though the plaintiffs sought no instructions for punitive damages, the declaration having submitted to the jury the plaintiffs’ demand for punitive damages. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So. 2d 226, 1962 Miss. LEXIS 432 (Miss. 1962).

In an action against a municipal policeman and the surety upon his official bond for wrongful assault upon the plaintiff by the policeman, an instruction that if the jury believed that the policeman acted wilfully in striking plaintiff it could assess punitive damages by way of punishment to the defendants was error as to the surety company, since in absence of a statute sureties on official bonds are not liable for punitive or exemplary damages. Vanderslice v. Shoemake, 233 Miss. 523, 102 So. 2d 804, 1958 Miss. LEXIS 411 (Miss. 1958).

Where it appeared that the defendant, while driving at a speed in excess of the city speed limit, either ignored or failed to see a stop sign, and without any effort to stop or check her speed ran into the intersection, striking plaintiff’s pickup truck broadside, which defendant failed to see although it was daylight and there was nothing to obscure her vision, plaintiff was entitled to an instruction on punitive damages. Dame v. Estes, 233 Miss. 315, 101 So. 2d 644, 1958 Miss. LEXIS 382 (Miss. 1958).

In an action for damages for an alleged wrongful trespass committed by defendant in repossessing an automobile, where there was no substantial evidence to show that the defendant’s agent used trickery or chicanery, or made false representations to obtain possession of the automobile, the trial court did not err in refusing to submit to the jury the question of punitive damages. Bradley v. Associates Discount Corp., 230 Miss. 131, 92 So. 2d 468, 1957 Miss. LEXIS 352 (Miss. 1957).

A court should not instruct a jury that it is its duty to assess punitive damages. Southeastern Express Co. v. Thompson, 139 Miss. 344, 104 So. 80, 1925 Miss. LEXIS 135 (Miss. 1925).

Nor can a court compel the assessment of punitive damages. Austin Machinery Corp. v. Clark-Hunt Contracting Co., 140 Miss. 78, 103 So. 1, 1925 Miss. LEXIS 236 (Miss. 1925).

29. —Instructions on statute.

A plaintiff motorist was entitled to an instruction that a preceding motorist was negligent as a matter of law under §63-3-707, which provides that a driver should not turn a vehicle from a highway unless the turn can be made with reasonable safety, where the preceding driver admitted that he turned his vehicle to the left out of his lane of traffic without first looking to see whether the plaintiff was following him, and the court’s refusal to give this requested instruction was reversible error. Conner v. Harris, 624 So. 2d 482, 1993 Miss. LEXIS 304 (Miss. 1993).

A party is not entitled to an instruction that one should yield to the car first entering an intersection where the statute requires stopping before entering the intersection in response to a red signal light, and Code 1942, § 8195 merely prescribes the general rule as to an ordinary intersection and is inapplicable to one with traffic lights and signals. Gates v. Green, 214 So. 2d 828, 1968 Miss. LEXIS 1337 (Miss. 1968).

In an action brought by a house mover against an electric company for injuries he received from coming into contact with a live power line, an instruction for defendant that if jury believed the power line in question had been erected and maintained in conformity with Code 1942, § 2778 and National Electric Safety Code there would be no liability on defendant, was erroneous and misleading for the moving of a house along a highway is not “common use of the highway,” and instruction was also contrary to rule that whether utility is negligent despite compliance with National Electric Safety Code was a question for jury. Crouch v. Mississippi Power & Light Co., 193 So. 2d 144, 1966 Miss. LEXIS 1283, 1967 Miss. LEXIS 1546 (Miss. 1966).

To instruct the jury for the plaintiff in an automobile collision action that jury could not find him guilty of contributory negligence because of the comparative negligence statute was error. Whitten v. Land, 188 So. 2d 246, 1966 Miss. LEXIS 1375 (Miss. 1966).

In an action by a railroad company for damages caused to its train when it was struck by a truck at a rural crossing for which there was no legally imposed speed limit, it was error to grant an instruction for the defendant that if the jury believed from the evidence that at the time and place in question the train was being run at an unlawful rate of speed under the conditions then prevailing, the railroad was guilty of negligence. Illinois C. R. Co. v. Aldy, 185 So. 2d 680, 1966 Miss. LEXIS 1532 (Miss. 1966).

An instruction based on the failure-to-stop-at-an-intersection -statute (Code 1942, § 8197) was properly refused when it was not worded in accordance with the requirements of the statute. Bush Constr. Co. v. Walters, 254 Miss. 266, 179 So. 2d 188, 1965 Miss. LEXIS 946 (Miss. 1965).

In action involving motor vehicle collision, instructions that if the demands of the parties were valid and equal, the verdict should be for defendant, that if plaintiff did not have a valid claim against a counter-claimant, and if the counter-claimant had a valid claim against plaintiff, then the verdict should be for the counter-claimant for his compensatory damages, and that if both parties had valid claims, but the claim of the counter-claimant exceeded that of the plaintiff, then the verdict should be for the counter-claimant for the excess over the plaintiff’s claim, constituted substantial compliance with Code 1942, § 1483.5. Johnson v. Richardson, 234 Miss. 849, 108 So. 2d 194, 1959 Miss. LEXIS 559 (Miss. 1959).

In an action for personal injuries and property damages resulting when plaintiff’s automobile ran into defendant’s truck which was going in the same direction on a U. S. highway, where it appeared that the speed of defendant’s truck at the time of the accident was from 10 to 20 miles per hour, the trial court committed reversible error in failing to charge that if the defendant was driving his vehicle on a federal designated highway at the time and place of the accident at a speed of less than 30 miles per hour where no fact existed justifying such slow speed under Code 1942, § 8178, and the reduced speed was the proximate, or a contributory cause of the accident, the jury should find for the plaintiff. Netterville v. Crawford, 233 Miss. 562, 103 So. 2d 1, 1958 Miss. LEXIS 418 (Miss. 1958).

In an action for injuries sustained by a 16-year-old motorcyclist in an intersectional collision with a truck, the driver of which had, contrary to Code 1942, § 8189(a), and a city ordinance, “cut the corner” in making a left turn, court properly instructed that the truck driver was guilty of negligence, and that plaintiff could recover on account thereof, if such negligence was a proximate, contributing cause of the collision. City of Jackson v. Reed, 233 Miss. 304, 103 So. 2d 6, 1958 Miss. LEXIS 380 (Miss. 1958), overruled, City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

In an action for injuries sustained by a 16-year-old motorcyclist in an intersectional collision with a truck, the driver of which had, contrary to Code 1942, § 8189(a), and a city ordinance, “cut the corner” in making a left turn, the court properly instructed that the truck driver was guilty of negligence, and plaintiff could recover on account thereof, if the negligence was a proximate, contributing cause of the collision. City of Jackson v. Reed, 233 Miss. 304, 103 So. 2d 6, 1958 Miss. LEXIS 380 (Miss. 1958), overruled, City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

Where a motorist had approached an intersection with the signal light flashing red in her direction, and failed to stop before entering therein, she was not entitled to an instruction under Code 1942, § 8195, providing that the driver of a vehicle approaching an intersection shall yield the right of way to vehicle which has entered the intersection from a different highway. Bates v. Walker, 232 Miss. 804, 100 So. 2d 611, 1958 Miss. LEXIS 333 (Miss. 1958).

There being no statute imposing a duty upon the driver of an overtaking vehicle the absolute duty of sounding an audible signal before passing without regard to whether the sounding of the signal is reasonably necessary to insure safe operation, an instruction that such was the law constituted reversible error where the proof was uncontradicted that the driver of the overtaking vehicle in which plaintiff was riding, did not sound his horn before attempting to pass defendant’s vehicle, since it in effect peremptorily instructed the jury that the driver of the overtaking vehicle was guilty of negligence. Clark v. Mask, 232 Miss. 65, 98 So. 2d 467, 1957 Miss. LEXIS 445 (Miss. 1957).

An instruction that if the driver of the car in which plaintiff was riding negligently attempted to pass defendant’s vehicle within 100 feet of an intersection, and such negligence was the sole proximate cause of the accident, the jury could find for the defendant, was correct, where the defendant showed that the attempt to pass was made within 50 or 60 feet of an intersection, which was one coming within the contemplation of the statute. Clark v. Mask, 232 Miss. 65, 98 So. 2d 467, 1957 Miss. LEXIS 445 (Miss. 1957).

Since no question of negligence is involved in the failure to comply with Code 1942, § 8163, the trial court properly refused to instruct that the fact that the defendant left the scene of a motor vehicle accident was a strong presumption that he was guilty of negligence by failing to stay at the scene of the accident and rendering first aid to the injured plaintiff and assisting in calling an ambulance and discharging other duties owed to the plaintiff. Clark v. Mask, 232 Miss. 65, 98 So. 2d 467, 1957 Miss. LEXIS 445 (Miss. 1957).

In an action arising out of intersection motor vehicle collision, the court’s instruction that if the driver of a truck, which was not a “pick-up” truck, was violating the law in driving the truck at a speed of more than 45 miles per hour, such fact did not raise any presumptions of negligence on the part of the driver, was error in view of Code 1942, § 8176. Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634, 1957 Miss. LEXIS 404 (Miss. 1957).

In cross actions for damages and personal injuries arising out of a motor vehicle intersection collision, the trial court’s instruction that defendant, who had been traveling along a road upon which a stop sign was located, not only had the duty to stop his automobile at the intersection but “to wait until he could safely proceed,” was error, since that duty was not required by Code 1942, § 8197. Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634, 1957 Miss. LEXIS 404 (Miss. 1957).

In a wrongful death action arising out of defendant’s automobile colliding with a bicycle ridden by a nine-year-old child upon a highway, the trial court did not err in instructing that the rider of a bicycle or other vehicle along a public highway should not turn from a direct course upon the highway unless and until such movement could be made with reasonable safety and then only after giving an appropriate signal, and the signal for a left turn should be given by extending the hand and arm horizontally. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

In a wrongful death action arising out of a defendant’s automobile colliding with a bicycle ridden by a nine-year-old child upon the highway, the court erred in instructing that if the boy’s failure to observe the requirements of the statute was the sole proximate cause of the accident, the jury could return a verdict for the defendant, since the jury might have been misled to conclude that, even though the defendant had seen the boy on the bicycle when he was several hundred feet in front of him, and failed to sound his horn, or apply his brakes until it was too late to avoid hitting the boy whose back was turned to the approaching automobile, they might disregard these facts and treat the unexpected and sudden action of the child in making a left turn on a bicycle as the sole proximate cause of the accident. Moak v. Black, 230 Miss. 337, 92 So. 2d 845, 1957 Miss. LEXIS 376 (Miss. 1957).

In action to recover damages for fire loss caused by defendant’s train blocking street in municipality so as to prevent fire department from putting out fire, instructions to plaintiff that law prohibits railroad company from stopping train at places where it crosses street within the city limits for more than five minutes did not mislead jury, although such instruction left uncertain whether it based liability entirely on the state statute which has been held inapplicable to streets in municipalities, or on a combination of the statute and the city ordinances, since the case was tried on the theory of the negligence of defendant in violating the municipal ordinances. New Orleans & N. R. Co. v. Bryant, 209 Miss. 193, 46 So. 2d 433, 1950 Miss. LEXIS 379 (Miss. 1950).

An erroneous instruction on the prima facie statute as to running of a train. 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).

30. —Miscellaneous.

An instruction using the phrase “a competent physician is not liable per se for a mere error of judgment” or “good faith error in judgment or honest error in judgment” should not be given in medical negligence cases because of their potential for confusing the jury; negligence that results in injury should support a finding of liability by a jury in a medical negligence case regardless of whether the act or omission giving rise to the injury was caused by an “honest error in judgment.” Day v. Morrison, 657 So. 2d 808, 1995 Miss. LEXIS 331 (Miss. 1995).

An instruction to the jury regarding the standard of care required of a physician should refer to “that degree of care, skill, and diligence which would have been provided by a reasonably prudent, minimally competent physician” under similar circumstances; the term “reasonably prudent” speaks to the care and diligence that a professional must bring to a task, and the term “minimally competent” describes the degree of skill and knowledge a professional must bring to a task. McCarty v. Mladineo, 636 So. 2d 377, 1994 Miss. LEXIS 120 (Miss. 1994).

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding blood tests submitted into evidence constituted reversible error where the blood tests established a 99.99 percent probability that the defendant was the father, and the instruction stated that the blood tests were “not conclusive of the issue of paternity and merely establish that out of the black male population it is biologically possible for the defendant to be the father”; although the test results did not constitute conclusive evidence of paternity, it was error to instruct the jury that the tests meant that paternity was a biological “possibility” since this language tended to discredit the evidence in that it reduced the 99.99 percent probability to a mere possibility. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

In a proceeding to establish the paternity of an infant, an instruction to the jury regarding the issue of whether the mother and the defendant had sexual intercourse during the period of probable conception constituted reversible error where the instruction stated that the jury would have to find that the couple had sexual intercourse without regard to the blood test results, which established a 99.99 percent probability that the defendant was the infant’s father, or that the tests could not be a factor in the jury’s conclusion on this question of fact; although such test results, standing alone, are insufficient to prove this element of a paternity claim, test results of this nature are relevant to whether sexual intercourse took place during the period of possible conception since they tend to make the existence of the fact that sexual intercourse took place during that time period more probable. Department of Human Servs. v. Moore, 632 So. 2d 929, 1994 Miss. LEXIS 110 (Miss. 1994).

The granting of an instruction in a will contest which advised the jury that it could not return a verdict for the proponent if it found that the testatrix was in any way influenced or guided or directed about or in or concerning the signing, publication, or the securing of attestation of the will by any person whomsoever, was reversible error, since it is undue influence that vitiates a will; a testator has the right to be directed and assisted in the preparation of his will and may have any aid or direction which he desires. Estate of Briscoe v. Briscoe, 255 So. 2d 313, 1971 Miss. LEXIS 1284 (Miss. 1971).

In a personal injury action, the court properly refused the defendant’s requested instruction that if a certain physician actually saw, examined and treated the plaintiff during the period of his alleged injuries, then the plaintiff could have used the physician as a witness and therefore the jury would be justified in inferring that the physician’s testimony would have been unfavorable to the plaintiff, where the physician was a resident of another state and the record was silent as to whether he was available for testimony. Great Atlantic & Pacific Tea Co. v. Scallon, 233 So. 2d 758, 1970 Miss. LEXIS 1663 (Miss. 1970).

In a personal injury suit against a city, where the plaintiff had waived the privilege of questioning an out-of-state doctor who had examined the plaintiff, and the city did not thereafter move for continuance or file interrogatories, the city’s request for an instruction permitting the jury to draw unfavorable inferences from the plaintiff’s failure to present the out-of-state doctor as a witness, was properly refused. City of Bay St. Louis v. Johnston, 222 So. 2d 841, 1969 Miss. LEXIS 1565, 1969 Miss. LEXIS 1566 (Miss. 1969).

In an action brought by a shopper who alleged that the manager of a store had unlawfully stopped her and searched her purse without cause, an instruction in which mere suspicion was made the basis of probable cause to believe that the plaintiff was attempting to commit the act of shoplifting, was in error. Butler v. W. E. Walker Stores, Inc., 222 So. 2d 128, 1969 Miss. LEXIS 1516 (Miss. 1969).

An instruction which tells the jury that the defendant must not only drive his automobile so as to be able to stop within the range of his vision, but that he must so drive his automobile that he can actually discover an object, perform manual acts necessary to stop, and bring his vehicle to a complete stop, if necessary to avoid collision with others on or near the highway, is such an instruction that would make the defendant the absolute insurer of the safety of the plaintiff, and consequently should not be granted. Mills v. Balius, 254 Miss. 353, 180 So. 2d 914, 1965 Miss. LEXIS 954 (Miss. 1965).

Instruction that it is a settled rule of law that insurance policies are always construed more strongly against the insurance company and more favorably for the insured should not have been given because it is not the function of the jury to construe the insurance contract. Canal Ins. Co. v. Howell, 253 Miss. 225, 175 So. 2d 517, 1965 Miss. LEXIS 984 (Miss. 1965).

Under a policy requiring that the insurance company be given due notice if the insured gin was not to operate during the regular season, the question as to what constituted due notice and whether it was given was for jury, and an instruction that notice to an insurance agency was notice to the insurance company, was too broad. Liverpool & London & Globe Ins. Co. v. Eagle Cotton Oil Co., 244 Miss. 110, 140 So. 2d 562, 1962 Miss. LEXIS 429 (Miss. 1962).

An instruction as to the form of the verdict to be rendered should the jury find for the plaintiff, and instructing them to write it on a separate piece of paper, was not erroneous in a malpractice action. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

In an action for rent due on truck and trailer equipment pursuant to a rent contract between parties, instructions which referred to the contract as being exhibit A to the plaintiff’s declaration, which was but a short and simple method of bringing to the jury’s consideration the three page contract which was filed as an exhibition, was not erroneous. Smith v. Thompson, 233 Miss. 200, 101 So. 2d 530, 1958 Miss. LEXIS 371 (Miss. 1958).

An instruction properly submitted to the jury the question of whether a new agreement embodied in a formal contract, at defendants’ request, which the plaintiff signed and mailed to the defendants for execution by them, and the defendants’ actions after receipt of the signed copies of the new agreement, extinguished the earlier permission authorizing defendants to take possession of the property on a month to month basis, subject to termination at plaintiff’s will. Spann v. Gulley, 233 Miss. 62, 101 So. 2d 337, 1958 Miss. LEXIS 358 (Miss. 1958).

In an appeal from an award of damages by special court of eminent domain for the taking of a public highway right of way through landowner’s land, trial court’s instruction advising the jury that the purpose of the view was to enable it to have a more intelligent understanding of the land and the location of the proposed road was proper, where the jury was further advised to consider all the other evidence along with its observations. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

Instructions to jury in civil case which refer jury to declaration are erroneous for reason that frequently declaration is couched in technical and complicated language and jury should not be required to go to declaration in order to decipher facts from it. Jessup v. Reynolds, 208 Miss. 50, 43 So. 2d 753, 1949 Miss. LEXIS 407 (Miss. 1949).

Instruction in civil case which gives correct statement of necessary facts which jury must believe before awarding plaintiff verdict and which do not make it necessary for jury to sift declaration and carve out of it such facts as are essential to recovery is not erroneous on ground that it contains phrase, “as charged in the declaration.” Jessup v. Reynolds, 208 Miss. 50, 43 So. 2d 753, 1949 Miss. LEXIS 407 (Miss. 1949).

Instruction which announces correct principles of law is not ground for reversal merely because it is too long when jury is not misled or confused by it. Y. D. Lumber Co. v. Aycock, 41 So. 2d 35 (Miss. 1949).

In cases where a too close issue of fact is involved, instructions on burden of proof should go no further than to advise jury that proponent of will or plaintiff in other civil cases is required to establish issue by preponderance of evidence. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

Substantial accuracy is all that is required in an instruction. Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

Instruction that if certain physician treated plaintiff in action for personal injury, and that such physician was available as a witness in her behalf, presumption would arise that his testimony would be adverse to plaintiff if she failed to call him as a witness, was erroneous where plaintiff on examination waived her privilege at a time when the taking of testimony in the case had not reached the half-way mark and there was no showing that the doctor in question was not reasonably available and that his attendance could not have been procured without unreasonable delay or discomfiture to the court. Clary v. Breyer, 194 Miss. 612, 13 So. 2d 633, 1943 Miss. LEXIS 106 (Miss. 1943).

31. Objections and exceptions.

A claim of error in the refusal of proffered instructions is procedurally preserved by the mere tendering of the instructions, suggesting that they are correct, and asking the court to submit them to the jury. This in and of itself affords opposing counsel fair notice of the party’s position and the courts an opportunity to pass upon the matter. When instructions are refused, there is no reason to require an objection to the refusal, unless a value is to be placed upon “redundancy and nonsense.” Carmichael v. Agur Realty Co., 574 So. 2d 603, 1990 Miss. LEXIS 780 (Miss. 1990).

A defendant’s objection to a general negligence instruction after judgment in a motion for judgment notwithstanding the verdict was barred where the defendant failed to object to the instruction before the case went to the jury. Mills v. Barnhill, 546 So. 2d 664, 1989 Miss. LEXIS 294 (Miss. 1989).

In action against town for damages to land caused by defective sewage tank, landowners held not precluded from challenging propriety of directed verdict for defendant, although instruction was not excepted to and no motion for new trial was made assigning as ground the giving of such instruction, in view of statute and court rule making such action unnecessary. Hodges v. Drew, 172 Miss. 668, 159 So. 298, 1935 Miss. LEXIS 112 (Miss. 1935).

An instruction marked “given” or “refused” by the court and filed by the clerk is a part of the record and does not need to be excepted to. Cox v. State, 141 Miss. 607, 107 So. 7, 1926 Miss. LEXIS 470 (Miss. 1926).

In a conflict between the parties in the Supreme Court as to correctness of a bill of exceptions, the court will view the instructions and other proof in determining its correctness. Sovereign Camp, W. O. W. v. Sloan, 136 Miss. 549, 101 So. 195, 1924 Miss. LEXIS 112 (Miss. 1924).

An instance of a hypercritical objection to instruction. Southern R. Co. v. Floyd, 99 Miss. 519, 55 So. 287, 1911 Miss. LEXIS 222 (Miss. 1911).

The Supreme Court will take no notice of requests for instructions unless exceptions have been duly taken to the action of the court below with respect to them. Barney v. Scherling, 40 Miss. 320, 1866 Miss. LEXIS 73 (Miss. 1866).

32. Review.

Supreme Court will reverse judgment on appeal because of errors of court below in erroneously granting some, and refusing other, instructions, which results in denial of fair trial to appellant because jury is not properly instructed on law of case. Wilburn v. Gordon, 209 Miss. 27, 45 So. 2d 844, 1950 Miss. LEXIS 359 (Miss. 1950).

Fact that instruction is technically inaccurate will not alone cause a reversal of judgment; but when case on appeal is examined as a completed trial, and substantial error has not been committed and a fair and just result has been reached, judgment will be affirmed, notwithstanding error in instruction. Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

An instruction marked “given” or “refused” by the court and filed by the clerk is a part of the record and does not need to be excepted to. Cox v. State, 141 Miss. 607, 107 So. 7, 1926 Miss. LEXIS 470 (Miss. 1926).

An erroneous direction of verdict in favor of one defendant in an action for death held to be cause for reversal as to co-defendant as being equivalent to directed verdict against it. Gulf & S. I. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168, 1924 Miss. LEXIS 210 (Miss. 1924).

Error in directing a verdict is reviewable on appeal though not assigned as a ground in motion for new trial. Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

An instruction correct as requested may be assigned as error on appeal because of erroneous modification thereof. Mississippi C. R. Co. v. Hardy, 88 Miss. 732, 41 So. 505, 1906 Miss. LEXIS 195 (Miss. 1906); Coleman v. Yazoo & M. V. R. Co., 90 Miss. 629, 43 So. 473, 1907 Miss. LEXIS 70 (Miss. 1907).

Instructions merely marked “given” or “refused” are not a part of the record unless indorsed by the clerk or indorsed in a bill of exceptions. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

Instructions marked “given” by the clerk but not signed by the clerk will not be considered on appeal in the absence of the instructions being made a part of the record by bill of exceptions. Hansford v. State, 11 So. 106 (Miss. 1891).

The Supreme Court will not notice requests for instructions unless exceptions be duly taken to the action of the court below on them. Barney v. Scherling, 40 Miss. 320, 1866 Miss. LEXIS 73 (Miss. 1866).

Instructions when marked “given” or “refused” by the clerk constitute a part of the record. Swann v. West, 41 Miss. 104, 1866 Miss. LEXIS 20 (Miss. 1866); Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 1920 Miss. LEXIS 484 (Miss. 1920).

RESEARCH REFERENCES

ALR.

Instruction mentioning or suggesting specific sum as damages in action for personal injury or death. 2 A.L.R.2d 454.

Modern view as to propriety and correctness of instructions referable to maxim “falsus in uno, falsus in omnibus.” 4 A.L.R.2d 1077.

Instructions, in will contest, defining natural objects of testator’s bounty. 11 A.L.R.2d 731.

Indoctrination by court of persons summoned for jury service. 89 A.L.R.2d 197.

Verdict-urging instructions in civil case stressing desirability and importance of agreement. 38 A.L.R.3d 1281.

Verdict-urging instructions in civil case commenting on weight of majority view or authorizing compromise. 41 A.L.R.3d 845.

Verdict-urging instructions in civil case admonishing jurors to refrain from intransigence, or reflecting on integrity or intelligence of jurors. 41 A.L.R.3d 1154.

Propriety and prejudicial effect of sending written instructions with retiring jury in civil case. 91 A.L.R.3d 336.

Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case. 91 A.L.R.3d 382.

Necessity of, and prejudicial effect of omitting, cautionary instruction to jury as to reliability of, or factors to be considered in evaluating, eyewitness identification testimony-state cases. 23 A.L.R.4th 1089.

Construction and application of provision of Rule 51 of Federal Rules of Civil Procedure requiring party objecting to instructions or failure to give instruction to jury, to state “distinctly the matter to which he objects and the grounds for objections.” 35 A.L.R. Fed. 727.

Am. Jur.

75A Am. Jur. 2d, Trial §§ 920 et seq.

9A Am. Jur. Pl & Pr Forms (Rev), Evidence, Form 24 (instructions to jury-acceptance of stipulated fact as true); Form 72.1 (definitions); Form 125.1 (effect of number of witnesses on weight of evidence).

23 Am. Jur. Pl & Pr Forms (Rev), Trial, Forms 101-269 (Instructions and admonitions to jury).

CJS.

88A and 88B C.J.S., Trial §§ 444-761.

§ 11-7-157. No special form of verdict required.

No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.

HISTORY: Codes, 1906, § 762; Hemingway’s 1917, § 565; 1930, § 574; 1942, § 1518.

Cross References —

Members of jurors to agree on verdict in civil case, see §13-5-93.

Verdict on trial of two or more defendants in criminal case, see §99-19-7.

Another section derived from same 1942 code section, see §99-19-9.

Special verdicts and general verdicts, see Miss. R. Civ. P. 49.

JUDICIAL DECISIONS

1. In general.

2. Damages.

3. Surplusage.

4. Comparative negligence.

5. Illustrative cases.

1. In general.

The trial court did not err in allowing the interrogatory form of the verdict where the verdict form accurately set out the elements of the action. Pickering v. Industria Masina I Traktora, 740 So. 2d 836, 1999 Miss. LEXIS 175 (Miss. 1999).

Verdicts of guilty on three counts of aggravated assault were not rendered invalid by the use of “Agg Assult” and “Avd Assult” on the verdict forms, especially as the jury was polled and all jurors were unanimous in their verdicts of guilty. Coles v. State, 756 So. 2d 12, 1999 Miss. App. LEXIS 241 (Miss. Ct. App. 1999).

The court did not err by refusing to clarify the form of the verdict where the jury verdict awarded a lump sum of damages to each individual plaintiff, with the exception of a couple of joint awards, but did not apportion out the amount applicable to each type of damage awarded. Mississippi Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, 1998 Miss. LEXIS 367 (Miss. 1998).

The basic test as to the sufficiency of a verdict as to form is whether or not it is an intelligent answer to the issues submitted and expressed so that the intent of the jury can be understood by the court. Henson Ford, Inc. v. Crews, 249 Miss. 45, 160 So. 2d 81, 1964 Miss. LEXIS 375 (Miss. 1964); Wilson v. State, 197 Miss. 17, 19 So. 2d 475, 1944 Miss. LEXIS 269 (Miss. 1944).

A verdict that “we the jury find the defendant not guilty,” returned not in a criminal case but in a tort action, is not a ground for reversible error for, under this section [Code 1942, § 1518], no special form of verdict is required. Mizell v. Cauthen, 251 Miss. 418, 169 So. 2d 814, 1964 Miss. LEXIS 360 (Miss. 1964).

Only general verdicts are provided for in this state. Flournoy v. Brown, 200 Miss. 171, 26 So. 2d 351, 1946 Miss. LEXIS 279 (Miss. 1946).

After verdict, a jury may be polled, but not interrogated otherwise. Flournoy v. Brown, 200 Miss. 171, 26 So. 2d 351, 1946 Miss. LEXIS 279 (Miss. 1946).

2. Damages.

In an action to recover for personal injuries sustained in a motor vehicle collision, the trial court erred in finding from the verdict returned that the jury intended to find for defendants under the instructions it had received, where the jury had been instructed that if it found both parties negligent, it should reduce plaintiff’s recovery in proportion to her negligence, and where the jury returned a verdict finding both parties negligent to a degree with no damages assessed; the trial court should have returned the jury to further deliberate on a proper verdict. Harrison v. Smith, 379 So. 2d 517, 1980 Miss. LEXIS 1812 (Miss. 1980).

The fact that the jury in considering the contributory negligence of plaintiffs’ decedent and the negligence of defendants in an action arising from an automobile collision and determining that the negligence of the parties was equal does not per se establish the fact that the jury did not follow the law in determining damages, and such fact did not constitute reversible error. Necaise v. Blalock, 210 So. 2d 637, 1968 Miss. LEXIS 1499 (Miss. 1968).

Verdict that “We the jury find for the plaintiff, twelve men for the plaintiff, eleven men recommend $22,500,” held sufficient in form. Henson Ford, Inc. v. Crews, 249 Miss. 45, 160 So. 2d 81, 1964 Miss. LEXIS 375 (Miss. 1964).

In an action by plaintiff against defendant for damages to its trucks sustained in an intersectional motor vehicle collision wherein defendant counterclaimed for damages to his automobile and personal injuries, jury’s verdict reciting, “we, the jury, find both the plaintiff and defendant counter-plaintiff at fault, and assess no damages to either side” was sufficiently clear for the lower court to enter judgment thereon. Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So. 2d 634, 1957 Miss. LEXIS 404 (Miss. 1957).

3. Surplusage.

In an action in which the only issue was damages, the parties having stipulated as to liability, the jury’s initial verdict was sufficient and it was error for the trial court to return the jury for further deliberations where the initial verdict assessed damages at $5,000, thus answering the only issue submitted, and, though the assessment of the amount was followed by recommendations as to how to disperse the funds, such latter recommendations were only surplusage. Powell v. Thigpen, 336 So. 2d 719, 1976 Miss. LEXIS 1513 (Miss. 1976).

The written statement of the jury on the verdict and on a separate piece of paper in an automobile collision death action that “we find the defendant 50 percent responsible for accident and death of Mrs. Lucille Bilbro, $92,500” was surplusage and not a part of the verdict. Necaise v. Blalock, 210 So. 2d 637, 1968 Miss. LEXIS 1499 (Miss. 1968).

Jury’s attempt to apportion among joint tortfeasors amount of damages found by it may be disregarded as surplusage. Meridian City Lines v. Baker, 206 Miss. 58, 39 So. 2d 541, 1949 Miss. LEXIS 242 (Miss. 1949).

4. Comparative negligence.

A court is not required to provide a jury with an instruction regarding the format for a comparative negligence verdict. O'Neal v. Roche Biomedical Lab., Inc., 805 So. 2d 551, 2000 Miss. App. LEXIS 140 (Miss. Ct. App. 2000).

5. Illustrative cases.

Trial court properly denied an injured laborer’s motion for a new trial or a judgment notwithstanding the verdict because the employer did not want an inspection of the scissor lift prior to the employee’s fall, the employer was notified that the capacity decals were not in place, there was no error or imposition of strict liability in the jury instructions, and the verdict substantially complied with the requirements of law. Howell v. Equip., Inc., 170 So.3d 592, 2014 Miss. App. LEXIS 696 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 383 (Miss. 2015).

Where decedent was killed in a one-car collision after a tire on his truck burst, his estate sued the manufacturer; the jury returned an interrogatory verdict showing that the jurors were divided on the defective-manufacture claim, but when polled all agreed that the condition of the tire was not the proximate cause of decedent’s death. The trial court did not err in denying the estate’s motion for a new trial; the jury substantially complied with the law in rendering the verdict, as required by Miss. Code Ann. §11-7-157. Oliver v. Goodyear Tire & Rubber Co., 10 So.3d 976, 2009 Miss. App. LEXIS 238 (Miss. Ct. App. 2009).

RESEARCH REFERENCES

Am. Jur.

75B Am. Jur. 2d, Trial §§ 1297 et seq.

23 Am. Jur. Pl & Pr Forms (Rev), Trial, Forms 321-336 (general verdict).

23 Am. Jur. Pl & Pr Forms (Rev), Trial, Forms 341-451 (special issues, verdicts, and interrogatories).

CJS.

89 C.J.S., Trial §§ 933 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Juries and Jury Verdicts – Rules 38, 48-51, and 59. 52 Miss. L. J. 163, March 1982.

§ 11-7-159. Verdict may be reformed at the bar if informal or defective.

If the verdict is informal or defective, the court may direct it to be reformed at the bar. Where there has been a manifest miscalculation of interest, the court may direct a computation thereof at the bar, and the verdict may, if the jury assent thereto, be reformed in accordance with such computation.

HISTORY: Codes, 1906, § 779; Hemingway’s 1917, § 562; 1930, § 571; 1942, § 1515.

Cross References —

Another section derived from same 1942 code section, see §99-19-11.

JUDICIAL DECISIONS

1. In general.

Since §11-7-159 does not require that a verdict be reformed at the bar, it is merely directory, and therefore, the trial court did not err in directing the jury to retire to the juryroom and reform its verdict. Monroe County Electric Power Asso. v. Pace, 461 So. 2d 739, 1984 Miss. LEXIS 2055 (Miss. 1984).

Code 1942, § 1670 does not require at least three days notice of amendment before the amendment is actually made, and there was no error in the trial court correcting the verdict of the jury without the required notice, particularly in view of the fact that this section [Code 1942, § 1515] provides that if the verdict is informal or defective the court may direct it to be reformed at the bar. Poynter v. Trotter, 250 Miss. 812, 168 So. 2d 635, 1964 Miss. LEXIS 506 (Miss. 1964).

Where a jury trying a defendant had announced in open court that it had arrived at a verdict, which was handed to the clerk and, as read, found the defendant guilty as charged, whereupon one of the jurors mistakenly advised the court that the verdict was incorrect, and the word “not” was inserted in the verdict, but before the jury had adjourned, the court, being advised that amended verdict was wrong, ordered the jury back to the jury room for further deliberations and defendant was again found guilty, the court did not err in overruling defendant’s motion for a new trial where it was shown that defendant’s rights were not prejudiced by the occurrence. Anderson v. State, 231 Miss. 352, 95 So. 2d 465, 1957 Miss. LEXIS 519 (Miss. 1957).

Action of circuit court in permitting jury to reassemble and put its verdict in proper form before they had left courtroom or sight and presence of court was proper under this section [Code 1942, § 1515], where verdict was first returned, “We, jury, find the defendant guilty-charge,” and was corrected to read, “We, the jury, find the defendant guilty as charged,” and was signed by each member of jury. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

RESEARCH REFERENCES

ALR.

Amendment of record of judgment in state civil case to correct judicial errors and omissions. 50 A.L.R.5th 653.

Am. Jur.

75B Am. Jur. 2d, Trial §§ 1366 et seq.

CJS.

89 C.J.S., Trial §§ 1064–1082.

§ 11-7-161. If verdict not responsive, jury to deliberate further.

If the verdict is not responsive to the issue submitted to the jury, the court shall call their attention thereto and send them back for further deliberation.

HISTORY: Codes, 1906, § 780; Hemingway’s 1917, § 563; 1930, § 572; 1942, § 1516.

Cross References —

Lack of agreement on verdict of two or more defendants in criminal case, see §99-19-7.

JUDICIAL DECISIONS

1. In general.

2. Reversal of verdict.

1. In general.

Where decedent was killed in a one-car collision after a tire on his truck burst, his estate sued the manufacturer; the jury returned an interrogatory verdict showing that jurors were divided on the defective-manufacture claim, but when polled all agreed that the condition of the tire was not the proximate cause of decedent’s death. The jury substantially complied with the law in rendering the verdict; the trial court was not required to send the jury back for further deliberations pursuant to Miss. Code Ann. §11-7-161. Oliver v. Goodyear Tire & Rubber Co., 10 So.3d 976, 2009 Miss. App. LEXIS 238 (Miss. Ct. App. 2009).

Under Miss. Code Ann. §11-7-161, the jury’s verdict and apportionment of fault between the architectural firm and architect individually was ambiguous, and the circuit judge erred in not ordering the jury to return for deliberations in order to reform the verdict to determine the architect’s individual liability. Lambert Cmty. Hous. Group, L.P. v. Wenzel, 987 So. 2d 468, 2008 Miss. App. LEXIS 383 (Miss. Ct. App. 2008).

When jury in negligence case involving 3 defendants returns verdict which finds for 2 of defendants but makes no mention of third defendant, court may accept verdict as to defendants specifically mentioned but must return jury to jury room to reform verdict as to question of liability of third defendant; failure to do so will result in mistrial as to that defendant despite plaintiff’s failure to request instruction against that defendant, individually. Adams v. Green, 474 So. 2d 577, 1985 Miss. LEXIS 2196 (Miss. 1985).

In an action in which the only issue was damages, the parties having stipulated as to liability, the jury’s initial verdict was sufficient and it was error for the trial court to return the jury for further deliberations where the initial verdict assessed damages at $5,000, thus answering the only issue submitted, and, though the assessment of the amount was followed by recommendations as to how to disperse the funds, such latter recommendations were only surplusage. Powell v. Thigpen, 336 So. 2d 719, 1976 Miss. LEXIS 1513 (Miss. 1976).

2. Reversal of verdict.

The Court of Appeals erred when it reversed the verdict in a motor vehicle personal injury action on the ground that the jury had failed to follow its instructions and that the verdict was vague and incomplete as to which plaintiff had recovered since it was evident that the jury’s verdict was a joint verdict in favor of both plaintiffs, even though the verdict stated that the jury assess the “Plaintiff’s” damages. Byars v. Moore Planting Co., 755 So. 2d 415, 2000 Miss. LEXIS 9 (Miss. 2000).

The plaintiffs in an automobile negligence action were entitled to reversal of the jury’s verdict where (1) the plaintiffs sought damages both for injuries received in the accident by one plaintiff and for loss of consortium for the other plaintiff, (2) the court instructed the jury to either render separate verdicts for each plaintiff or for the defendant, (3) the jury rendered a single verdict for the plaintiffs, and (4) the trial judge failed to send the verdict back to the jury with instructions to follow his instructions. Byars v. Moore Planting Co., 1999 Miss. App. LEXIS 54 (Miss. Ct. App. Feb. 23, 1999), rev'd, 755 So. 2d 415, 2000 Miss. LEXIS 9 (Miss. 2000).

RESEARCH REFERENCES

ALR.

Correction, by trial court, of verdict which finds for party on his cause of action or counterclaim for money judgment, but which does not state amount of recovery, or is indefinite in this regard, or which affirmatively states that he is entitled to no amount. 49 A.L.R.2d 1328.

Am. Jur.

75B Am. Jur. 2d, Trial §§ 1309, 1311 et seq.

CJS.

89 C.J.S., Trial §§ 1029-1032.

§ 11-7-163. No error if verdict omits something.

If, on an issue concerning several things in one count, a verdict be found for only part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 1 (91); 1857, ch. 61. art. 184; 1871, § 625; 1880, § 1584; 1892, § 721; 1906, § 781; Hemingway’s 1917, § 564; 1930, § 573; 1942, § 1517.

§ 11-7-165. Award of damages in civil action against person who steals, embezzles, extorts or converts certain property of vulnerable adult; “position of trust” defined.

  1. In a civil action where it is proven that a person took property having a value of Two Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable adult by conversion, embezzlement, extortion, theft or fraud without the owner’s consent, or obtained the owner’s consent by intimidation, deception, undue influence or by misusing a position of trust or a confidential relationship with the owner, then whether the action is to recover the property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property embezzled, converted or otherwise stolen, in addition to any other damages.
  2. For purposes of this section, “position of trust” shall include, but not be limited to, a person who:
    1. Is named the attorney-in-fact in a power of attorney, whether executed before or after the adult became vulnerable;
    2. Has assumed a duty to provide care to the vulnerable adult;
    3. Is in a fiduciary relationship with the vulnerable adult, including a de facto guardian or de facto conservator; or
    4. Is a joint tenant or tenant in common with the vulnerable adult.
  3. “Vulnerable adult” shall have the meaning defined in Section 43-47-5, Mississippi Code of 1972.
  4. Civil remedies provided under this section shall be supplemental and cumulative, and not exclusive of other remedies afforded under any other law. Damages awarded under this section are remedial and not punitive, and do not limit and are not limited by any criminal action or any other provision of law. Any civil damages paid by the civil defendant shall reduce the amount such defendant, upon conviction, may be ordered to pay in restitution, and any restitution paid under a criminal penalty shall reduce any civil damages owed.
  5. The cause of action, the right to bring a cause of action, or the right to seek treble damages pursuant to this section shall not be limited or affected by the death of the owner.

HISTORY: Laws, 2007, ch. 550, § 1, eff from and after July 1, 2007.

Editor’s Notes —

A former §11-7-165 [Codes, Hutchinson’s 1848, ch. 59, art. 1 (91); 1857, ch. 61, art. 184; 1871, § 625; 1880, § 1584; 1892, § 720; 1906, § 778; Hemingway’s 1917, § 561; 1930, § 570; 1942, § 1514; Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991] provided that if the verdict omitted a price or value, the court could at any time award a writ of inquiry to ascertain the price or value.

In (1), (2)(b), (c) and (d), and (3), and in the section catchline, there are references to “vulnerable adult.” Laws of 2010, ch. 357, amended the name of the “Vulnerable Adults Act,” codified at §43-47-1 et seq., to be the “Vulnerable Persons Act.”

JUDICIAL DECISIONS

1. Summary judgment.

Chancery court properly granted a mother summary judgment in her conversion action against her son’s fiancée because she produced a fully supported summary judgment motion that included a doctor’s affidavit stating that the son was in the impaired range and that he did not have the cognitive ability, reasoning, or mental capacity to realize he was transferring a large sum of money to the fiancée or the consequences of his actions. Anderson v. Wiggins, — So.3d —, 2019 Miss. App. LEXIS 209 (Miss. Ct. App. May 14, 2019).

§ 11-7-167. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-167. [Codes, 1857, ch. 61, art. 181; 1871, § 622; 1880, § 1727; 1892, § 746; 1906, § 808; Hemingway’s 1917, § 596; 1930, § 600; 1942, § 1544]

Editor’s Notes —

Former §11-7-167 listed defects that would not stay or reverse a judgment after verdict.

§ 11-7-169. Judgment—remedial orders.

In all actions in which the right to real or personal estate is in controversy, the court or the judge thereof shall make an order for the protection of the property in controversy from waste or destruction, and to prevent the removal of personal property beyond the jurisdiction of the court, upon satisfactory proof being made of the necessity for such order, and may enforce such order by an attachment for contempt and other proper process; but in all such cases the court or judge may require a bond of the party applying for the order, in an adequate penalty, payable to the opposite party, with sufficient sureties, to be approved by the court or judge, conditioned to pay all such damages as may be suffered by reason of such order in case the principal obligor be cast in the suit.

HISTORY: Codes, 1857, ch. 61, art. 179; 1871, § 661; 1880, § 1729; 1892, § 748; 1906, § 810; Hemingway’s 1917, § 598; 1930, § 602; 1942, § 1546.

Cross References —

Power of all courts to punish contempt, see §9-1-17.

Authority of all judges to grant remedial writs, see §9-1-19.

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

Writ of sequestration, see §11-29-1 et seq.

Attachments at law generally, see §11-33-1 et seq.

Writ of garnishment generally, see §11-35-1 et seq.

Temporary protective orders in quo warranto proceeding, see §11-39-15.

§ 11-7-171. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 61, art. 253; 1871, § 822; 1880, § 1730; 1892, § 749; 1906, § 811; Hemingway’s 1917, § 599; 1930, § 603; 1942, § 1547; Laws, 1950, ch. 332]

Editor’s Notes —

Former §11-7-171 specified when a judgment was final.

§ 11-7-173. Judgment on bonds.

In an action brought upon a bond for the payment of money, wherein the plaintiff shall recover, judgment shall be entered for the penalty of the bond, to be discharged by the payment of the principal and interest due and costs of suit, and execution shall issue accordingly. However, if before judgment the defendant shall bring into court the principal and interest due upon the bond, he shall be discharged, and in that case judgment shall be entered for the costs alone.

HISTORY: Codes, 1857, ch. 61, art. 254; 1871, § 824; 1880, § 1731; 1892, § 750; 1906, § 812; Hemingway’s 1917, § 600; 1930, § 604; 1942, § 1548.

Cross References —

Release of excess in judgment on bond, see §11-1-21.

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds §§ 32- 33.

§ 11-7-175. Liability of ships and vessels for causing death or injury.

Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any ship or vessel, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against the said ship or vessel, or in personam against the owners thereof, or those having control of her, and to recover damages in respect thereof, then, in every such case the ship or vessel, which, had not death ensued, would have been liable to an action for damages, or to a libel in rem, and her owners, or those responsible for her acts or defaults or negligence to a libel in personam, shall be liable for all damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

HISTORY: Codes, Hemingway’s 1921 Supp, § 616a; 1930, § 621; 1942, § 1565; Laws, 1920, ch. 234.

Cross References —

Actions for injuries producing death, see §11-7-13.

Liability for violation of boating law, see §59-21-157 et seq.

Criminal liability for death by overloading boat, see §97-3-41.

JUDICIAL DECISIONS

1. In general.

The limitation period does not condition the right of action under the statute. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

Actions under the statute are, since the amendment of 1908, governed by the general statute of limitations. Triplett v. United States, 213 F. Supp. 887, 1963 U.S. Dist. LEXIS 7940 (S.D. Miss. 1963).

RESEARCH REFERENCES

ALR.

Liability for injury or damage by motorboat. 63 A.L.R.2d 343.

Liability of owner or operator of pleasure boat for injury or death of guest passenger. 35 A.L.R.4th 104.

When is death “instantaneous” for purposes of wrongful death or survival action. 75 A.L.R.4th 151.

Modern status of rule imputing motor vehicle driver’s negligence to passenger on joint venture theory. 3 A.L.R.5th 1.

Federal view as to effect of conditions appearing on back or margin of passenger’s ticket for ocean voyage. 5 A.L.R. Fed. 394.

Applicability of Jones Act (46 USCS § 688) to foreign seamen, foreign ships, or other foreign circumstances. 68 A.L.R. Fed. 360.

Am. Jur.

2 Am. Jur. 2d, Admiralty §§ 101- 105.

CJS.

2 C.J.S., Admiralty §§ 62, 64, 66, 77, 78.

§§ 11-7-177 and 11-7-179. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-177. [Codes, 1880, § 1732; 1892, § 751; 1906, § 813; Hemingway’s 1917, § 601; 1930, § 605; 1942, § 1549]

§11-7-179. [Codes, 1880, § 1733; 1892, § 752; 1906, § 814; Hemingway’s 1917, § 602; 1930, § 606; 1942, § 1550]

Editor’s Notes —

Former §11-7-177 pertained to rendering judgment according to the rights of the parties.

Former §11-7-179 authorized the rendering of as many verdicts and judgments as necessary to adjust the rights of the parties.

§ 11-7-181. Office confession of judgment; how made.

A person indebted to another in any sum of money within the jurisdiction of the circuit court, on any promise, agreement, or covenant, may sign an office confession of judgment in the clerk’s office of the circuit court, in the manner following, to wit: The creditor shall file in the clerk’s office a statement, under oath, substantially to the effect following, viz.:

“The State of Mississippi,_______________County.

In the circuit court of said county,_______________day of_______________, A.D._______________ ._______________states, on oath, that_______________is justly indebted to him for the amount of_______________dollars on an instrument of writing in the following words and figures, viz.: (here copy the same), and in case of indorsement say indorsed as follows: (here copy the indorsement), or on open account, of which a copy is hereto attached, which remains due and unpaid, and that said sum of money is not due or claimed under a fraudulent or usurious consideration.

_______________

“Sworn to and subscribed the_______________day of_______________A. D._______________before me.

“ _______________, Clerk.”

And if the evidence of the debt be in writing, the same shall be filed with said statement; and if not in writing, then a copy of the open account shall be filed; and the party indebted shall sign, before the clerk, an acknowledgment written upon or annexed to such statement, to the effect following, to wit:

“I do hereby acknowledge myself indebted to the said_______________in the sum of_______________Dollars, which includes interest up to the first day of the next term of the said circuit court, and I give my consent for judgment to be rendered against me in favor of said_______________, at the next term of said circuit court for said amount and all legal costs accruing thereon, with stay of execution (if any) until (as may be agreed upon).

“Taken and acknowledged the_______________day of_______________, A.D._______________, before me.

“ _______________, Clerk.”

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 6 (1); 1857, ch. 61, art. 257; 1871, § 827; 1880, § 1734; 1892, § 753; 1906, § 815; Hemingway’s 1917, § 603; 1930, § 607; 1942, § 1551.

Cross References —

Judgment on confession releasing errors, see §11-7-187.

Recovery of attorney’s fees in suit on open account, see §11-53-81.

JUDICIAL DECISIONS

1. In general.

A state’s statutes and rules whereby a confession of judgment, pursuant to a contractual cognovit provision, may be entered without notice or hearing by a prothonotary or clerk of a county court, upon application by the plaintiff who although required to mail notice to the defendant within 20 days after entry of judgment, may issue a writ of execution before the notice is mailed and whereby the defendant, to obtain relief by striking or opening the judgment, must assert prima facie grounds for relief and must persuade the court to open the judgment, are not unconstitutional on their face as violative of due process; under appropriate circumstances a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision. Swarb v. Lennox, 405 U.S. 191, 92 S. Ct. 767, 31 L. Ed. 2d 138, 1972 U.S. LEXIS 87 (U.S. 1972).

The fact that a note on which judgment was confessed was not due when the judgment was rendered does not deprive the circuit court of jurisdiction. Black v. Pattison, 61 Miss. 599, 1884 Miss. LEXIS 137 (Miss. 1884).

RESEARCH REFERENCES

ALR.

Validity and enforceability of judgment entered in sister state under a warrant of attorney to confess judgment. 39 A.L.R.2d 1232.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 180 et seq.

15 Am. Jur. Pl & Pr Forms, (Rev), Judgments, Forms 211-225 (judgments by confession).

CJS.

49 C.J.S., Judgments §§ 210, 211, 215–219, 222, 223.

173-175, 177, 178 et seq.

§ 11-7-183. Office confession of judgment; how made final.

When such statement and acknowledgment are filed, the clerk shall docket the cause on the appearance docket, and at the next term on the motion of the plaintiff, the court shall render judgment thereon for the amount acknowledged to be due, with interest from the first day of the term, and with such stay of execution, if any, as may be stipulated; and such judgment shall be final unless set aside during the term, and shall be as binding and obligatory as a judgment rendered in any other form; and a full and complete final record shall be made therein as in other cases.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 6 (1); 1857, ch. 61, art. 258; 1871, § 828; 1880, § 1735; 1892, § 754; 1906, § 816; Hemingway’s 1917, § 604; 1930, § 608; 1942, § 1552.

Cross References —

Duty of clerk to make final record of proceedings, see §9-7-127.

JUDICIAL DECISIONS

1. In general.

A state’s statutes and rules whereby a confession of judgment, pursuant to a contractual cognovit provision, may be entered without notice or hearing by a prothonotary or clerk of a county court, upon application by the plaintiff who, although required to mail notice to the defendant within 20 days after entry of judgment, may issue a writ of execution before the notice is mailed, and whereby the defendant, to obtain relief by striking or opening the judgment, must assert prima facie grounds for relief and must persuade the court to open the judgment, are not unconstitutional on their face as violative of due process; under appropriate circumstances a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision. Swarb v. Lennox, 405 U.S. 191, 92 S. Ct. 767, 31 L. Ed. 2d 138, 1972 U.S. LEXIS 87 (U.S. 1972).

The lien of such judgment only takes effect from confirmation. Bass v. Estill, 50 Miss. 300, 1874 Miss. LEXIS 58 (Miss. 1874).

RESEARCH REFERENCES

ALR.

Payment by obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised. 35 A.L.R.2d 1452.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 180, 201- 206.

CJS.

49 C.J.S., Judgments §§ 264–279.

§ 11-7-185. Office confession of judgment; void in certain cases.

A judgment rendered on office confession shall be void in toto as to third parties, if tainted with fraud or usury.

HISTORY: Codes, 1892, § 755; 1906, § 817; Hemingway’s 1917, § 605; 1930, § 609; 1942, § 1553.

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judgments § 205.

CJS.

49 C.J.S., Judgments § 278.

§ 11-7-187. Judgment on confession as release of errors.

A judgment on confession shall be equal to a release of all errors; but all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error made or to be made by any person before action brought, shall be absolutely null and void.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (94); 1857, ch. 61, art. 185; 1871, § 626; 1880, § 1728; 1892, § 747; 1906, § 809; Hemingway’s 1917, § 597; 1930, § 601; 1942, § 1545.

Cross References —

Execution docket in chancery court, see §9-5-217.

Form of office confession of judgment, see §11-7-181.

Power and letters of attorney, see §87-3-1 et seq.

JUDICIAL DECISIONS

1. In general.

The statute will not prohibit an appeal from a confessed judgment rendered by a justice of the peace. James v. Woods, 65 Miss. 528, 5 So. 106, 1888 Miss. LEXIS 38 (Miss. 1888).

RESEARCH REFERENCES

ALR.

Res judicata as affected by fact that former judgment was entered by agreement or consent. 2 A.L.R.2d 514.

Consent decree as affecting title to real estate in another state. 2 A.L.R.2d 1188.

Constitutionality, construction, application, and effect of statute invalidating powers of attorneys to confess judgment or contracts giving such power. 40 A.L.R.3d 1158.

Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect. 91 A.L.R.3d 1170.

CJS.

49 C.J.S., Judgments § 264.

§ 11-7-189. Enrollment of judgments; satisfaction.

  1. The clerk of the circuit court shall procure and keep in his office one or more books to be styled “The Judgment Roll,” which book or books shall be appropriately divided under the several letters of the alphabet, and on each page shall be placed the following captions:

    Click to view

    The clerk shall, within twenty (20) days after the adjournment of each term of court, enroll all final judgments rendered at that term in the order in which they were entered on the minutes by entering on The Judgment Roll, under the proper letter or letters of the alphabet, the name of each and every defendant to such judgment, the post office address of each defendant, and the social security or tax identification number of each defendant if such information is known or readily ascertainable, and if such defendant or defendants have an attorney at law in such case the name and post office address of such attorney or firm of attorneys if such post office address is known or readily ascertainable; the amount of such judgment; date of rendition; county and court in which rendered; the date, hour and minute of enrollment; and the name of the plaintiff or plaintiffs and the post office address of each plaintiff if readily ascertainable, and if represented by an attorney at law or a firm of attorneys then the name and post office address of such attorney or firm of attorneys if the post office address is known or readily ascertainable. The name of the attorney or firm of attorneys and post office addresses of the parties may be subsequently inserted by the clerk at any time.

    Notwithstanding the foregoing, the failure to list a social security number on a judgment shall not invalidate said judgment nor shall it make the party failing to list said judgment liable for such failure to list or the recording official liable for such failure.

  2. Any attorney of record representing a plaintiff or plaintiffs in the case may, for and on behalf of his client or clients, satisfy in whole or in part a judgment on such Judgment Roll by endorsing thereon the extent of such satisfaction and signing an entry so showing, and when so satisfied the clerk shall attest and subscribe such endorsement under the proper heading therein. When any judgment shall otherwise be satisfied, the clerk shall so enter under proper heading and subscribe the entry.
  3. The Judgment Roll may be kept on computer as provided in Section 9-7-171. In such case the plaintiff or attorney representing such plaintiff shall present to the clerk a sworn affidavit directing the clerk to cancel or otherwise show as satisfied the judgment recorded under this section.

Defendant’sName and Name of Defendant’s Attorney and Post Office Address of Each Amount of Judgment or Decree Date of Rendition County and Court in Which Rendered Social Security or Tax Identification Number Date, Hour and Minute of Enrollment Plaintiff’s Name,Plaintiff’sAttorney, and Post Office Address of Each When and HowSatisfied Remarks

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 16 (12); 1857, ch. 61, art. 260; 1871, § 829; 1880, § 1736; 1892, § 756; 1906, § 818; Hemingway’s 1917, § 606; 1930, § 610; 1942, § 1554; Laws, 1946, ch. 437; Laws, 1960, ch. 233, §§ 1, 2; Laws, 1994, ch. 521, § 27; Laws, 1994, ch. 458, § 8; Laws, 1997, ch. 342, § 1, eff from and after July 1, 1997.

Cross References —

Enrollment of money decrees from chancery court, see §9-5-159.

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

Lis pendens record in chancery court, see §11-47-1.

Enrollment of notice of lien for franchise taxes, see §27-13-29 et seq.

Enrollment of notice of lien for sales taxes, see §27-65-57.

Enrollment of warrant for collection of tobacco tax, see §27-69-41.

Enrollment of warrant for collection of wine and beer tax, see §27-71-333.

Enrollment of warrant for collection of contributions to employment security commission, see §§71-5-367,71-5-369.

Satisfaction of judgment by surety, see §87-5-9.

JUDICIAL DECISIONS

1. In general.

2. Date lien attaches.

3. Property subject to lien.

4. Priority.

1. In general.

Judgment debtor requested that a circuit court cancel a judgment, but the circuit court properly ruled that it lacked jurisdiction to do so, and moreover only the judgment creditor had the authority to remove the judgment from the county’s rolls; the circuit court had merely entered an order that accepted a letter of credit instead of a supersedeas bond, and that order did not affect the underlying judgment. Fitch v. Valentine, 946 So. 2d 780, 2007 Miss. LEXIS 10 (Miss. 2007).

Judgment lien of United States obtained in proceeding in Federal district court is subject, under applicable Federal statutes, to state statutes (Code 1942, §§ 733, 735, 1554, 1555), governing the enrollment of judgments and limiting the duration of the lien thereof to seven years, notwithstanding provision of § 104, Constitution of 1890, that statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof. United States v. Williams-Richardson Co., 206 Miss. 378, 40 So. 2d 177, 1949 Miss. LEXIS 268 (Miss. 1949).

The enrollment of a judgment against two persons, partners, under the letter of the name of one only, does not bind the property of the other. Hughes v. Lacock, 63 Miss. 112, 1885 Miss. LEXIS 26 (Miss. 1885).

2. Date lien attaches.

Pursuant to Miss. Code Ann. §11-7-189(1), a transfer of property occurred when a transferee’s state court judgment against a debtor was enrolled in the county Judgment Roll, the date of which was well outside the 90-day period found in 11 U.S.C.S. § 547(b)(4)(A); thus, it was not preferential. Studdard v. Pitts (In re Studdard), 2007 Bankr. LEXIS 2693 (Bankr. S.D. Miss. Aug. 2, 2007).

A judgment enrolled on January 3, 1961, within 20 days after its rendition, did not relate back to the date of its rendition, December 13, 1960, to give the judgment creditor a specific lien on property which the judgment debtor had conveyed to third parties on November 29, 1960, the deed being filed for record on December 14, 1960. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962), overruling Clark v. Duke, 59 Miss. 575 (1882), insofar as it is in conflict with the later decision.

While as between the judgment creditor and debtor, a judgment enrolled within 20 days relates back to the date of rendition of the judgment, and is valid as a deed or other conveyance, the judgment, as to third parties, takes effect and has priority only from the date of its enrollment. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962), overruling Clark v. Duke, 59 Miss. 575 (1882), insofar as it is in conflict with the later decision.

Judgment enrolled after time allowed clerk for enrolling judgment did not affect rights of bona fide purchaser for value purchasing property before enrollment but after judgment was rendered. Kalmia Realty & Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903, 1932 Miss. LEXIS 73 (Miss. 1932).

Attorney’s fees held not recoverable as damages for wrongful act in levying execution where judgment creditors and sheriff acted on advice of counsel, though erroneous, that under this section [Code 1942, § 1554] and Code 1942, § 1555, the lien of the judgment in question related back to the rendition of the judgment. Kalmia Realty & Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903, 1932 Miss. LEXIS 73 (Miss. 1932).

3. Property subject to lien.

A judgment enrolled on January 3, 1961, within 20 days after its rendition, did not relate back to the date of its rendition, December 13, 1960, to give the judgment creditor a specific lien on property which the judgment debtor had conveyed to third parties on November 29, 1960, the deed being filed for record on December 14, 1960. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962), overruling Clark v. Duke, 59 Miss. 575 (1882), insofar as it is in conflict with the later decision.

Enrollment and entry of judgment by judgment creditor on judgment roll of the county did not give the judgment creditor a lien on judgment debtor’s cotton which judgment debtor sold and delivered to a third person, and the judgment creditor was not entitled to recover the value of the cotton from third person where no execution or other process was ever issued or levied on the cotton, despite the fact that the statute provides that enrolled judgment shall be a lien on all property of judgment debtor within the county. Willis Hardware Co. v. Clark, 216 Miss. 84, 61 So. 2d 441, 1952 Miss. LEXIS 619 (Miss. 1952).

A judgment enrolled in the county became a lien on all the property of the defendant subject to execution, notwithstanding an appeal with supersedeas was immediately taken after the rendition of the judgment and before it was enrolled. Williams & Freeman v. Bosworth, 102 Miss. 160, 59 So. 6, 1912 Miss. LEXIS 40 (Miss. 1912).

4. Priority.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, under the order of priority of the filing of the judgment creditors’ liens under Miss. Code Ann. §§11-7-189,11-7-191,11-7-195,11-7-197, the wife was first in priority, the appraiser was second, the attorney was third, and the bank was last. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

While as between the judgment creditor and debtor, a judgment enrolled within 20 days relates back to the date of rendition of the judgment, and is valid as a deed or other conveyance, the judgment, as to third parties, takes effect and has priority only from the date of its enrollment. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962), overruling Clark v. Duke, 59 Miss. 575 (1882), insofar as it is in conflict with the later decision.

Expenses of last illness and funeral expenses constitute preference claim over enrolled judgment upon which execution has not been issued and levied. Dabney v. Continental Jewelry Co., 163 Miss. 1, 140 So. 338, 1932 Miss. LEXIS 9 (Miss. 1932).

RESEARCH REFERENCES

ALR.

Necessity of notice of application or intention to correct error in judgment entry. 14 A.L.R.2d 224.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

CJS.

49 C.J.S., Judgments §§ 179 et seq.

§ 11-7-191. Enrolled judgment as lien.

A judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor and all persons claiming the property under him after the rendition of the judgment. A judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled. In counties having two (2) judicial districts, a judgment shall operate as a lien only in the district or districts in which it is enrolled. Any judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state, and shall not be enforced or satisfied against any such property.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 14 (1); 1857, ch. 61, art. 261; 1871, § 830; 1880, § 1737; 1892, § 757; 1906, § 819; Hemingway’s 1917, § 607; 1930, § 611; 1942, § 1555; Laws, 1995, ch. 565, § 3, eff from and after July 1, 1995.

Cross References —

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

Lien of enrolled judgment of justice court, see §11-9-129.

Writ of execution in absence of judgment lien, see §13-3-139.

Execution and garnishment on enrolled judgments and decrees, see §13-3-155.

Duty of officer making execution sale to apply proceeds according to priority of liens, see §13-3-181.

Limitation of actions on judgments, see §15-1-1 et seq.

Preference of purchase-money mortgage, see §89-1-45.

Provisions relative to judgments in the amount of overdue child support payments, see §93-11-71.

JUDICIAL DECISIONS

1. In general.

2. When lien attaches.

3. Property subject to lien.

4. —After-acquired property.

5. Persons affected; bona fide purchasers.

6. Priority.

7. Effect of appeal; affirmance of judgment.

1. In general.

Judgment debtor requested that a circuit court cancel a judgment, but the circuit court properly ruled that it lacked jurisdiction to do so, and moreover only the judgment creditor had the authority to remove the judgment from the county’s rolls; the circuit court had merely entered an order that accepted a letter of credit instead of a supersedeas bond, and that order did not affect the underlying judgment. Fitch v. Valentine, 946 So. 2d 780, 2007 Miss. LEXIS 10 (Miss. 2007).

Where a chancery court found in favor of the purchaser of a warranty timber deed in a breach of contract action in which it was determined that the seller of the deed did not have legal title to the land, the chancery court erred in denying the purchaser a judgment lien on the property pursuant to Miss. Code Ann. §11-7-191 and Miss. Code Ann. §11-7-197 because the judgment constituted a lien on the property once the judgment was enrolled. Gordon v. Gordon, 929 So. 2d 981, 2006 Miss. App. LEXIS 395 (Miss. Ct. App. 2006).

Judgment lien of United States obtained in proceeding in Federal district court is subject, under applicable Federal statutes, to state statutes (Code 1942, §§ 733, 735, 1554, 1555), governing the enrollment of judgments and limiting the duration of the lien thereof to seven years, notwithstanding provision of § 104, Constitution of 1890, that statutes of limitation in civil cases shall not run against the state, or any subdivision or municipal corporation thereof. United States v. Williams-Richardson Co., 206 Miss. 378, 40 So. 2d 177, 1949 Miss. LEXIS 268 (Miss. 1949).

The object of enrollment is to protect the rights of persons who should become purchasers. Josselyn v. Stone, 28 Miss. 753, 1855 Miss. LEXIS 21 (Miss. 1855).

The rights of the state are not affected by the enrollment laws. Josselyn v. Stone, 28 Miss. 753, 1855 Miss. LEXIS 21 (Miss. 1855).

2. When lien attaches.

Deeds and instruments made prior to lis pendens notice but not recorded until after notice has been given are made subject to the lis pendens notice, after an interest has been established by recorded judgment by operation of law. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

While as between the judgment creditor and debtor, a judgment enrolled within 20 days relates back to the date of rendition of the judgment, and is valid as a deed or other conveyance, the judgment, as to third parties, takes effect and has priority only from the date of its enrollment. Herrington v. Heidelberg, 244 Miss. 364, 141 So. 2d 717 (1962), overruling Clark v. Duke, 59 Miss. 575 (1882), insofar as it is in conflict with the later decision.

Lien under alimony decree cannot arise, if at all, until default in payment of installments. Harris v. Worsham, 164 Miss. 74, 143 So. 851, 1932 Miss. LEXIS 224 (Miss. 1932).

Judgment lien relates back to date of rendition of judgment only when enrolled within time allowed to clerk for enrolling judgment. Kalmia Realty & Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903, 1932 Miss. LEXIS 73 (Miss. 1932).

Under this [Code 1942, § 1555] and the preceding section [Code 1942, § 1554], a judgment does not become a lien unless enrolled within twenty days provided for, and after such twenty days it is not a lien unless enrolled; title passing from judgment debtor to third person for a consideration before an enrollment of judgment is not affected thereby. Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 428 (1926). See as an exception Perry Nugent & Co. v. Priebatsch, 61 Miss. 402, 1883 Miss. LEXIS 147 (Miss. 1883).

The only difference with regard to the lien of a judgment rendered by the circuit court and one rendered by a justice of the peace is that the first, upon enrollment, becomes a lien and binds the property of defendant from the rendition thereof, while the lien of the latter attaches only from the date of its enrollment. Minshew v. Geo. W. Davidson & Co., 86 Miss. 354, 38 So. 315, 1905 Miss. LEXIS 29 (Miss. 1905).

The lien can attach to money only from its seizure. Cahn v. Person, 56 Miss. 360, 1879 Miss. LEXIS 129 (Miss. 1879).

3. Property subject to lien.

Pursuant to Miss. Code Ann. §11-7-191, an enrolled judgment does not become a lien on money or intangible property of the judgment defendant until such time as the judgment creditor seizes the money or intangible property by way of a writ of garnishment or other appropriate writ; where a creditor claimed that it enjoyed a secured position with respect to debtor’s accounts receivable by virtue of a pre-petition judgment it obtained against debtor, it did not have a perfected lien on the accounts and accounts receivable because creditor had not seized or garnished any accounts or accounts receivable of debtor. In re Rexrode, 2005 Bankr. LEXIS 915 (Bankr. N.D. Miss. May 18, 2005).

Once a judgment is obtained and duly enrolled, the judgment becomes a lien on all property of the judgment debtor situated within the county; The lien follows the property and may be enforced against the property wherever it may be found within the county, without regard to intervening right of any third party. Merideth v. United States, 327 F. Supp. 429, 1970 U.S. Dist. LEXIS 9382 (N.D. Miss. 1970), aff'd, 449 F.2d 186, 1971 U.S. App. LEXIS 7783 (5th Cir. Miss. 1971).

Enrollment and entry of judgment by judgment creditor on judgment roll of the county did not give the judgment creditor a lien on judgment debtor’s cotton which judgment debtor sold and delivered to a third person, and the judgment creditor was not entitled to recover the value of the cotton from third person where no execution or other process was ever issued or levied on the cotton, despite the fact that the statute provides that enrolled judgment shall be a lien on all property of judgment debtor within the county. Willis Hardware Co. v. Clark, 216 Miss. 84, 61 So. 2d 441, 1952 Miss. LEXIS 619 (Miss. 1952).

A judgment lien on land includes a lien on the timber thereon, before and after the timber is cut off. Stuart v. Pickett, 193 Miss. 455, 10 So. 2d 207, 1942 Miss. LEXIS 136 (Miss. 1942).

Where a husband and wife joined in a conveyance of the timber on his land, which was subject to a judgment lien against him, and, the land thereafter having been forfeited to the state for taxes, the husband, who was insolvent, induced the purchaser of the timber to advance him sufficient money out of the balance due him on the purchase price with which to purchase the state’s title to the land, and thereupon paid the money to the state, receiving the state’s deed in his wife’s name, the title vested in the husband, and not in his wife, and so was subject to the judgment lien, and the judgment creditor was entitled to recover the unpaid balance of the timber contract. Stuart v. Pickett, 193 Miss. 455, 10 So. 2d 207, 1942 Miss. LEXIS 136 (Miss. 1942).

Decree allowing solicitor fee in partition cause was not subject to lien of judgment against solicitor. Bank of Monticello v. L. D. Powell Co., 159 Miss. 183, 130 So. 292, 1930 Miss. LEXIS 356 (Miss. 1930).

Under this [Code 1942, § 1555] and the preceding section [Code 1942, § 1554] a judgment does not become a lien unless enrolled within twenty days provided for, and after such twenty days it is not a lien unless enrolled; title passing from judgment debtor to third person for a consideration before an enrollment of judgment is not affected thereby. Johnson v. Cole Mfg. Co., 144 Miss. 482, 110 So. 428 (1926). See as an exception Perry Nugent & Co. v. Priebatsch, 61 Miss. 402, 1883 Miss. LEXIS 147 (Miss. 1883).

A voucher for the payment of money due is not subject to the lien of an enrolled judgment and its negotiability is unaffected thereby. R. F. Walden & Co. v. Yates, 111 Miss. 631, 71 So. 897, 1916 Miss. LEXIS 353 (Miss. 1916).

An enrolled judgment is not a lien upon a debt due judgment defendant. Bryan v. Henderson Supply Co., 107 Miss. 255, 65 So. 242, 1914 Miss. LEXIS 75 (Miss. 1914).

A judgment creditor has the same rights to property that a judgment debtor had, and no other. Candler v. Cromwell, 101 Miss. 161, 57 So. 554, 1911 Miss. LEXIS 116 (Miss. 1911).

A deed of trust or mortgage becomes a lien upon a growing crop, but a judgment does not attach to a growing crop. Candler v. Cromwell, 101 Miss. 161, 57 So. 554, 1911 Miss. LEXIS 116 (Miss. 1911).

A voluntary partition by agreement between tenants in common will not affect a judgment creditor of one of them. Simmons v. Gordon, 98 Miss. 316, 53 So. 623, 1910 Miss. LEXIS 64 (Miss. 1910).

The statute only relates to judgments against the defendant from whom the money has been collected; and applies only to money made by a sale under execution. Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881).

A judgment-creditor takes in execution the property of his debtor subject to every liability under which the debtor himself held it at the time of the rendition of the judgment, and subject to all equities which exist at the time in favor of third persons, except where otherwise provided by statute. Walton v. Hargroves, 42 Miss. 18, 1868 Miss. LEXIS 31 (Miss. 1868); Foute v. Fairman, 48 Miss. 536, 1873 Miss. LEXIS 76 (Miss. 1873).

The lien extends to the money produced by sale under execution as well as to the property sold. Smith v. Everly, 5 Miss. 178, 1839 Miss. LEXIS 69 (Miss. 1839).

The removal of property out of the county after the lien has attached does not destroy it. Chilton v. Cox, 15 Miss. 791, 1846 Miss. LEXIS 204 (Miss. 1846).

4. —After-acquired property.

The judgment, if enrolled, becomes a lien on after-acquired property from the date of its acquisition. Jenkins v. Gowen, 37 Miss. 444, 1859 Miss. LEXIS 35 (Miss. 1859); Cayce v. Stovall, 50 Miss. 396, 1874 Miss. LEXIS 73 (Miss. 1874); Moody v. Doe, 25 Miss. 484, 1853 Miss. LEXIS 19 (Miss. 1853); Cooper v. Turnage, 52 Miss. 431, 1876 Miss. LEXIS 237 (Miss. 1876).

5. Persons affected; bona fide purchasers.

Under Mississippi law, a statutory lien on the property of a judgment debtor situated in the county of enrollment follows the property, but the lien statutes do not authorize a money judgment against one who disposes of the property. Merideth v. United States, 327 F. Supp. 429, 1970 U.S. Dist. LEXIS 9382 (N.D. Miss. 1970), aff'd, 449 F.2d 186, 1971 U.S. App. LEXIS 7783 (5th Cir. Miss. 1971).

Judgment enrolled after time allowed to clerk for enrolling judgment did not affect rights of bona fide purchaser for value purchasing property before enrollment but after judgment was rendered. Kalmia Realty & Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903, 1932 Miss. LEXIS 73 (Miss. 1932).

Judgment creditor held not to have released lien on automobile by authorizing release of first levy of execution. Purchaser of automobile from judgment creditor held charged with knowledge of statutory lien of judgment creditor. Gerlach-Barklow Co. v. Ellett, 145 Miss. 60, 111 So. 92, 1927 Miss. LEXIS 133 (Miss. 1927).

Where a judgment was rendered and enrolled by mistake against a wrong party, it cannot be corrected thereafter between the right parties so as to affect the rights of bona fide purchasers intervening. Allen West Com. Co. v. Millstead, 92 Miss. 837, 46 So. 256, 1908 Miss. LEXIS 231 (Miss. 1908); Stone v. Threefoot Bros. & Co., 99 Miss. 15, 54 So. 595, 1910 Miss. LEXIS 4 (Miss. 1910).

The lien of a judgment duly enrolled binds the property in the hands of a subvendee or more remote purchaser from the defendant. Mitchell v. Wood, 47 Miss. 231, 1872 Miss. LEXIS 67 (Miss. 1872).

6. Priority.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, under the order of priority of the filing of the judgment creditors’ liens under Miss. Code Ann. §§11-7-189,11-7-191,11-7-195,11-7-197, the wife was first in priority, the appraiser was second, the attorney was third, and the bank was last. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

Judgment creditors who had obtained judgment liens under the Mississippi judgment lien statutes were held to be judgment lien creditors for the purposes of being excepted from the federal tax lien statute and thus were entitled to priority over the tax claims of the Internal Revenue Service. Merideth v. United States, 327 F. Supp. 429, 1970 U.S. Dist. LEXIS 9382 (N.D. Miss. 1970), aff'd, 449 F.2d 186, 1971 U.S. App. LEXIS 7783 (5th Cir. Miss. 1971).

The lien of judgment in a suit commenced prior to the four months preceding the filing of a bankruptcy petition, to set aside a conveyance as fraudulent, is not affected by the bankruptcy. Davis v. Polk Financial Service, 242 Miss. 419, 135 So. 2d 175, 1961 Miss. LEXIS 578 (Miss. 1961).

Where the trustee in bankruptcy abandoned property owned by the debtor which had brought less than the amount of either of the liens of a chattel mortgagee or judgment creditor when sold, the proceedings in bankruptcy did not affect the rights of the lienholders, and the holder of the judgment lien retained priority to the funds. Brookhaven Bank & Trust Co. v. Gwin, 253 F.2d 17, 1958 U.S. App. LEXIS 4895 (5th Cir. Miss. 1958).

A recorded deed of trust, containing an erroneous description of the land conveyed by the grantor, which recited that the land in question contained 60 acres more or less, whereas the grantor only owned 40 acres, was not sufficient to put the grantor’s judgment creditors on notice that an entirely different tract of land was intended to be included, and did not give notice of a description which a diligent search of the records might have disclosed as to other lands belonging to the grantor, so that while the grantee was entitled to a reformation of a trust deed as against the grantor, he was not so entitled as against the judgment creditors, who had executed on the lands actually owned by the grantor. Mississippi Industries for Blind v. Jackson, 231 Miss. 135, 95 So. 2d 109, 1957 Miss. LEXIS 496 (Miss. 1957).

Expenses of last illness and funeral expenses constitute preference claim over enrolled judgment upon which execution has not been issued and levied. Dabney v. Continental Jewelry Co., 163 Miss. 1, 140 So. 338, 1932 Miss. LEXIS 9 (Miss. 1932).

Without deciding the point, it would seem that the lien of an enrolled judgment creditor under this statute is stronger and more far-reaching than that of an execution judgment creditor, and would prevail over the lien of a purchase money creditor. In re Whatley, 30 F.2d 979, 1929 U.S. Dist. LEXIS 1886 (D. Miss. 1929).

The priority given by the statute is lost as against subsequent judgment creditors, and therefore in bankruptcy proceedings, by such holder agreeing to stay execution on his judgment and acting in pursuance of such agreement until bankruptcy supervenes. Winchester-Simmons Co. v. Phillips, 16 F.2d 109, 1926 U.S. App. LEXIS 3769 (5th Cir. Miss. 1926).

One year’s provision for a widow is superior to the lien of an enrolled judgment against her husband before his death. First Nat'l Bank v. Donald, 112 Miss. 681, 73 So. 723, 1916 Miss. LEXIS 162 (Miss. 1916).

Where a motion to set aside a judgment for a certain sum is continued and overruled at a subsequent term, but the judgment is allowed to stand for a less sum, a judgment recovered and enrolled during the interval is prior in lien. Crane v. Richardson, 73 Miss. 254, 18 So. 542, 1895 Miss. LEXIS 80 (Miss. 1895).

Even without notice to the senior judgment creditor, a junior judgment creditor is entitled to the proceeds of goods seized and sold under his judgment, pending a stay of execution granted by the senior judgment itself. Virden v. Robinson, 59 Miss. 28, 1881 Miss. LEXIS 68 (Miss. 1881).

Where a creditor refuses to give an indemnifying bond, and another creditor does give it, and a sale is made because thereof, the latter will have a superior right to the proceeds. Townsend v. Henry, 26 Miss. 203, 1853 Miss. LEXIS 75 (Miss. 1853); Dabney v. Stackhouse, 49 Miss. 513, 1873 Miss. LEXIS 139 (Miss. 1873).

Where several judgments are rendered against a defendant on the same day, the judgment which appears first entered on the minutes of the court obtains a prior lien. President & Directors of Bank of Metropolis v. President, Directors & Co. of New England Bank, 42 U.S. 234, 11 L. Ed. 115, 1843 U.S. LEXIS 302 (U.S. 1843); John Reed & Co. v. Haviland, Harral & Co., 38 Miss. 323, 1860 Miss. LEXIS 3 (Miss. 1860); Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881); Herron v. Walker, 69 Miss. 707, 12 So. 259, 1892 Miss. LEXIS 16 (Miss. 1892).

If a creditor suspend his execution, he loses his priority of lien. Michie v. Planters' Bank, 5 Miss. 130, 1839 Miss. LEXIS 64 (Miss. 1839); Smith v. Everly, 5 Miss. 178, 1839 Miss. LEXIS 69 (Miss. 1839).

7. Effect of appeal; affirmance of judgment.

A judgment of affirmance in Supreme Court neither satisfies, merges, nor extinguishes the judgment below; and though it be a judgment on the appeal bond against the principal and his sureties, it does not extinguish or destroy the lien of the original judgment. President, Directors & Co. of Planters Bank v. Calvit, 11 Miss. 143, 1844 Miss. LEXIS 57 (Miss. 1844); Kilpatrick v. Dye's Heirs, 12 Miss. 289, 1845 Miss. LEXIS 20 (Miss. 1845); Montgomery v. McGimpsey, 15 Miss. 557, 1846 Miss. LEXIS 185 (Miss. 1846).

RESEARCH REFERENCES

ALR.

Priority between attorney’s lien for fees against a judgment and lien of creditor against same judgment. 34 A.L.R.4th 665.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 327 et seq.

15 Am. Jur. Pl & Pr Forms (Rev), Judgments, Form 601.1 (Petition or application – To foreclose judgment lien – Defendant filing for bankruptcy – Plaintiff erroneously not included as judgment creditor).

CJS.

50 C.J.S., Judgments §§ 760, 761 et seq.

Law Reviews.

The Effect of Bankruptcy and Encumbrances on Mineral Interests in Mississippi. 53 Miss. L. J. 551, December, 1983.

§ 11-7-193. How priority of lien forfeited.

A junior judgment creditor may give written notice to any senior judgment creditor requiring him to execute his judgment; and if the senior judgment creditor, being so notified, shall fail, neglect or refuse to have execution issued, and levied within ten days from said notice for the satisfaction of his judgment, he shall lose his priority, and the junior judgment creditor may cause execution to issue on his judgment and to be levied on any of the property of the defendant, and the proceeds of a sale thereof shall be applied to the junior judgments so levied.

HISTORY: Codes, 1857, ch. 61, art. 261; 1871, § 830; 1880, § 1737; 1892, § 758; 1906, § 820; Hemingway’s 1917, § 608; 1930, § 612; 1942, § 1556.

Cross References —

Loss of priority in attachment, see §11-33-53.

Execution on judgments, see §13-3-155.

JUDICIAL DECISIONS

1. In general.

In a dispute between cross-defendants, three judgment creditors, as to priority of their liens, where the debtor’s ex-wife filed her lien first, an appraiser filed his lien second, and the ex-wife’s attorney filed his last, because the attorney did not provide statutory notice to the appraiser, he could not supplant the wife’s lien under Miss. Code Ann. §11-7-193 for her alleged failure to execute after the attorney sent her such notification; the judgment liens had priority in order of filing. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

The rule that an agreement to waive or postpone execution or laches in the issuance thereof is a fraud upon junior judgment creditors has been superseded by the enactment of a provision fixing a reasonable time of ten days within which the holder of the senior judgment must act or lose his lien. In re Gulfport Furniture Co., 1 F. Supp. 489, 1932 U.S. Dist. LEXIS 1768 (D. Miss. 1932).

By failure to give the statutory notice to the holder of the senior judgment, the junior creditor is deemed to acquiesce in delay. In re Gulfport Furniture Co., 1 F. Supp. 489, 1932 U.S. Dist. LEXIS 1768 (D. Miss. 1932).

Mere delay in withholding a writ of execution without an agreement to do so will not affect the judgment creditor’s priority of lien. In re Gulfport Furniture Co., 1 F. Supp. 489, 1932 U.S. Dist. LEXIS 1768 (D. Miss. 1932).

The junior creditor having given the notice and the senior having failed to do as required of him, the former has a prior lien. Curry v. Lampkin & Conner, 51 Miss. 91, 1875 Miss. LEXIS 18 (Miss. 1875).

The section [Code 1942, § 1556] applies to living plaintiffs, who can legally enforce their judgments. Dibble v. Norton, 44 Miss. 158, 1870 Miss. LEXIS 96 (Miss. 1870).

RESEARCH REFERENCES

ALR.

Priority between attorney’s lien for fees against a judgment and lien of creditor against same judgment. 34 A.L.R.4th 665.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 346 et seq.

CJS.

50 C.J.S., Judgments §§ 797 et seq.

§ 11-7-195. Judgment not a lien out of county unless enrolled.

A judgment or decree rendered in any court of the United States or of this state shall not be a lien upon or bind any property of the defendant situated out of the county in which the judgment or decree was rendered until the plaintiff shall file in the office of the clerk of the circuit court of the county in which such property is situated an abstract of such judgment or decree which has been certified by the clerk of the court in which the same was rendered containing the names of all the parties to such judgment or decree, its amount, the social security or tax identification number of the defendant if such information is known or readily ascertainable, the date of the rendition, and the amount appearing to have been paid thereon, if any. It shall be the duty of the clerk of the circuit court on receiving such abstract and on payment of the fees allowed by law for filing and enrolling the same, to file and forthwith enroll the same on The Judgment Roll, as in other cases. Such judgment or decree shall, from the date of its enrollment, be a lien upon and bind the property of the defendant within the county where it shall be so enrolled. If a foreign judgment has been filed in any county of this state pursuant to Sections 11-7-301 through 11-7-309 and such judgment may be enforced in such county, then, for purposes of this section, such judgment shall be treated as if it had been rendered in such county and may be enrolled on The Judgment Roll in other counties pursuant to the provisions of this section. Any judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state and shall not be enforced or satisfied against any such property.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 14 (3); 1857, ch. 61, art. 262; 1871, § 833; 1880, § 1738; 1892, § 759; 1906, § 821; Hemingway’s 1917, § 609; 1930, § 613; 1942, § 1557; Laws, 1991, ch. 416, § 1; Laws, 1995, ch. 565, § 4; Laws, 1997, ch. 342, § 2, eff from and after July 1, 1997.

Cross References —

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

JUDICIAL DECISIONS

1. In general.

2. Court has no enforcement authority once judgment enrolled.

3. Priority.

1. In general.

The lien of an enrolled judgment does not attach to intangible property, such as vouchers for the payment of money and the right to receive money, and until service of a writ of garnishment or other appropriate writ subjecting such intangible property to the judgment, the lien is inchoate and does not attach. Simmons--Belk, Inc. v. May, 283 So. 2d 592, 1973 Miss. LEXIS 1230 (Miss. 1973).

A judgment does not become a lien until an abstract thereof be filed and the judgment be enrolled, and the lien has priority from the time of the filing and enrolling. Bergen v. State, 58 Miss. 623, 1881 Miss. LEXIS 11 (Miss. 1881); Hamilton-Brown Shoe Co. v. Walker, 67 Miss. 197, 6 So. 713, 1889 Miss. LEXIS 20 (Miss. 1889).

This statute (Laws of 1841, Feb. 6) did not abrogate a lien which had been acquired under a judgment previously obtained, although the latter had not been recorded in the manner required by the statute. Massingill v. Downs, 48 U.S. 760, 12 L. Ed. 903, 1849 U.S. LEXIS 369 (U.S. 1849).

2. Court has no enforcement authority once judgment enrolled.

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; no authority was vested in the circuit court over the collection of the judgment once the clerk had enrolled the judgment. 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).

3. Priority.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, under the order of priority of the filing of the judgment creditors’ liens under Miss. Code Ann. §§11-7-189,11-7-191,11-7-195,11-7-197, the wife was first in priority, the appraiser was second, the attorney was third, and the bank was last. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

ALR.

Judgment of court of foreign country as entitled to enforcement or extraterritorial effect in state court. 13 A.L.R.4th 1109.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 338 et seq.

CJS.

50 C.J.S., Judgments § 750.

§ 11-7-197. Judgment not a lien in county until enrolled.

Judgments and decrees, at law or in equity, rendered in any court of the United States held within this state, or in the Supreme Court or the court of chancery of this state, shall not be a lien upon or bind the property of the defendant within the county in which such judgments or decrees may be rendered, until an abstract thereof shall be filed in the office of the clerk of the circuit court of the county and enrolled on the judgment roll, in the manner and on the terms hereinbefore provided in Section 11-7-195. Such judgments and decrees shall bind the property of the defendants from the date of such enrollment, in like manner as judgments and decrees rendered in a different county and so enrolled.

HISTORY: Codes, 1857, ch. 61, art. 263; 1871, § 834, 1880, § 1739; 1892, § 760; 1906, § 822; Hemingway’s 1917, § 610; 1930, § 614; 1942, § 1558.

Cross References —

Duty of chancery clerk to furnish circuit clerk with abstract of money decrees, see §9-5-159.

Uniform enforcement of foreign judgments, see §11-7-301 et seq.

Record of decrees making partition of land, see §11-21-37.

Limitation of action on foreign judgment, see §15-1-45.

JUDICIAL DECISIONS

1. In general.

2. Court has no enforcement authority once judgment enrolled.

3. Priority.

1. In general.

Where a chancery court found in favor of the purchaser of a warranty timber deed in a breach of contract action in which it was determined that the seller of the deed did not have legal title to the land, the chancery court erred in denying the purchaser a judgment lien on the property pursuant to Miss. Code Ann. §11-7-191 and Miss. Code Ann. §11-7-197 because the judgment constituted a lien on the property once the judgment was enrolled. Gordon v. Gordon, 929 So. 2d 981, 2006 Miss. App. LEXIS 395 (Miss. Ct. App. 2006).

Although inmate could have enrolled bankruptcy court’s judgment fixing amount the lawyer owed the inmate as a result of the lawyer’s breach of agreement and obtained a judgment lien as a result, the evidence did not show that the inmate did so; as a result, the trial court did not err in denying his motion for writ of garnishment. Estelle v. Robinson, 805 So. 2d 623, 2002 Miss. App. LEXIS 37 (Miss. Ct. App. 2002).

2. Court has no enforcement authority once judgment enrolled.

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; no authority was vested in the circuit court over the collection of the judgment once the clerk had enrolled the judgment. 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).

3. Priority.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found, thus, under the order of priority of the filing of the judgment creditors’ liens under Miss. Code Ann. §§11-7-189,11-7-191,11-7-195,11-7-197, the wife was first in priority, the appraiser was second, the attorney was third, and the bank was last. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 332— 334 et seq.

CJS.

50 C.J.S., Judgments §§ 781 et seq.

§ 11-7-199. Growing crop not subject to judgment lien.

A growing crop shall not be subject to the lien of a judgment.

HISTORY: Codes, 1880, § 1764; 1892, § 761; 1906, § 823; Hemingway’s 1917, § 611; 1930, § 615; 1942, § 1559.

Cross References —

Provision for growing crops in cases of unlawful entry and detainer, see §11-25-115.

Prohibition against levying execution on growing crops, see §13-3-137.

Duty of executor with respect to crop growing at the time of death of testator, see §91-7-169.

JUDICIAL DECISIONS

1. In general.

When cotton is ready to harvest, it is not “growing crop”, and judgment lien then attaches. 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).

RESEARCH REFERENCES

CJS.

50 C.J.S., Judgments § 784.

§ 11-7-201. Revival not necessary for execution.

It shall not be necessary to revive a judgment by scire facias because no execution shall have been issued on such judgment within a year and a day after its rendition, but execution may be issued without such revival.

HISTORY: Codes, 1857, ch. 61, art. 266; 1871, § 838; 1880, § 1741; 1892, § 762; 1906, § 824; Hemingway’s 1917, § 612; 1930, § 616; 1942, § 1560.

Cross References —

Revival of judgment by scire facias, see §13-3-153.

RESEARCH REFERENCES

ALR.

Reviving, renewing, or extending judgment by order entered after statutory limitation period on motion made or proceeding commenced within such period. 52 A.L.R.2d 672.

Am. Jur.

46 Am. Jur. 2d, Judgments §§ 365- 387.

CJS.

50 C.J.S., Judgments §§ 854-868.

§§ 11-7-203 through 11-7-209. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-203. [Codes, 1880, § 1756; 1892, § 763; 1906, § 825; Hemingway’s 1917, § 613; 1930, § 617; 1942, § 1561]

§11-7-205. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (145); 1857, ch. 61, art. 162; 1871, § 644; 1880, § 1715; 1892, § 733; 1906, § 974; Hemingway’s 1917, § 578; 1930, § 587; 1942, § 1531]

§11-7-207. [Codes, 1880, § 1718; 1892, § 735; 1906, § 796; Hemingway’s 1917, § 580; 1930, § 589; 1942, § 1533]

§11-7-209. [Codes, 1857, ch. 61, art. 164; 1871, § 646; 1880, § 1717; 1892, § 737; 1906, § 798; Hemingway’s 1917, § 586; 1930, § 590; 1942, § 1534]

Editor’s Notes —

Former §11-7-203 provide for suspension of judgment.

Former §11-7-205 was entitled: Bills of exceptions – in civil cases.

Former §11-7-207 was entitled: When bills of exceptions signed.

Former §11-7-209 was entitled: Exceptions, bill of – when attorneys may sign.

§ 11-7-211. Bills of exception may be amended.

Bills of exception, with the approval of the trial judge, may be amended at any time before the hearing on appeal, for the purpose of curing omissions, defects, or inaccuracy; but no such amendment shall be made until the parties interested shall have been given five days’ notice of such proposed amendment.

HISTORY: Codes, 1906, § 799; Hemingway’s 1917, § 587; 1930, § 591; 1942, § 1535.

Cross References —

Another section derived from same 1942 code section, see §99-17-45.

JUDICIAL DECISIONS

1. In general.

2. Illustrative cases.

1. In general.

A proposed amendment to a bill of exceptions, which gave some support to the defendant’s allegation that he had requested and been denied a preliminary examination, was not properly a part of the record in the case, where the amendment had not been approved or consented to by the trial court. Stevenson v. State, 244 So. 2d 30, 1971 Miss. LEXIS 1324 (Miss. 1971).

Corrections of errors in bill of exceptions, where testimony is taken down by court’s stenographer, must take place in trial court, except as provided by this section [Code 1942, § 1535]. Williams v. W. M. Hardee & Son, 140 Miss. 151, 106 So. 16, 1925 Miss. LEXIS 243 (Miss. 1925).

The trial court may amend a special bill of exceptions before the expiration of the term of court. Archer v. State, 140 Miss. 597, 105 So. 747, 1925 Miss. LEXIS 295 (Miss. 1925).

This section [Code 1942, § 1535] has no application where an instruction is marked “given” by the court and also marked “filed” by the clerk, for such instruction then becomes a part of the record. Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 1920 Miss. LEXIS 484 (Miss. 1920).

To amend a bill of exceptions the trial judge must consent thereto. Ladnier v. Ingram Day Lumber Co., 122 Miss. 577, 84 So. 385, 1920 Miss. LEXIS 455 (Miss. 1920).

2. Illustrative cases.

Where, in response to appellant’s motion to supplement the record, a school board filed an amended bill of exceptions, although appellant had only three days’ notice of the proposed amendment, its motion to strike the amended bill was properly denied because any deficiency in notice did not affect its substantial rights. Rod Cooke Constr. Co. v. Lamar County Sch. Bd., 135 So.3d 902, 2013 Miss. App. LEXIS 641 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 204 (Miss. 2014).

RESEARCH REFERENCES

ALR.

Amendment of record of judgment in state civil case to correct judicial errors and omissions. 50 A.L.R.5th 653.

Am. Jur.

5 Am. Jur. 2d, Appellate Review § 420.

CJS.

4 C.J.S., Appeal and Error §§ 199, 591.

§§ 11-7-213 and 11-7-215. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-7-213. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (73); 1857, ch. 61, art. 165; 1871, § 647; 1880, § 1719; 1892, § 738; 1906, § 800; Hemingway’s 1917, § 588; 1930, § 592; 1942, § 1536; Laws, 1956, ch. 230]

§11-7-215. [Codes, 1857, ch. 61, art. 168; 1871, § 648; 1880, § 1720; 1892, § 739; 1906, § 801; Hemingway’s 1917, § 589; 1930, § 593; 1942, § 1537]

Editor’s Notes —

Former §11-7-213 directed that new trials be granted only on terms directed by the court and two to same party.

Former §11-7-215 was entitled: New trials – That only two be granted to the same parts granting or refusing assignable for error.

§ 11-7-217. Executions of fines, penalties, and forfeitures.

The clerk of the circuit court shall, immediately after the adjournment of every term, issue execution according to the nature of the case, for all fines, penalties and forfeitures assessed by the court, or which shall have accrued to the state or to the county, and remaining due and unpaid. Said clerk shall, within thirty days after such adjournment, transmit a list of said executions to the clerk of the board of supervisors of the county, noting the names of the defendants, the amounts, and the sheriff or other officer to whom the same was delivered; and, at the same time, he shall transmit to said clerk a statement of the returns made by the sheriff or other officer on execution for fines, penalties, and forfeitures returnable to the last term of the court. Any circuit court clerk who shall fail to issue such executions, or to transmit the lists thereof as required, shall forfeit and pay the sum of two hundred dollars for every such offense, to be recovered by the state or county, on motion against him and his sureties by the district attorney, before the circuit court. The clerk of the board of supervisors shall notify the district attorney of such default.

HISTORY: Codes, 1857, ch. 61, art. 304; 1871, § 867; 1880, § 1785; 1892, § 764; 1906, § 826; Hemingway’s 1917, § 614; 1930, § 618; 1942, § 1562.

Cross References —

Duty of clerk of the justice court to collect and report fines, see §9-11-19.

Collection of costs, see §11-53-69.

Duty of clerk of board of supervisors, see §19-3-27.

Duty of district attorney as to fines and penalties, see §25-31-23.

Another section derived from same 1942 code section, see §99-19-65.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 51, 56, 57.

CJS.

21 C.J.S., Courts §§ 327-351.

§ 11-7-219. Remedy against officers, failing to return fines.

If any sheriff or other officer shall return on any such writ of execution, that he hath levied the fine, penalty, or forfeiture therein mentioned, or any part thereof; or, that he hath taken the body of the defendant, and shall have suffered such defendant to escape; or, if any person be committed to the custody of such sheriff or other officer until the fine, penalty, or forfeiture for which he was committed shall be paid, and such sheriff or officer shall permit such defendant to escape; or, if such sheriff or officer shall have received such fine, penalty, or forfeiture, or any part thereof, and shall not immediately account to the clerk of the board of supervisors and pay the same into the treasury of the county, then, in either of the cases above specified, it shall be the duty of said clerk to notify the district attorney of such default, who shall thereupon, on motion at the next term of the circuit court, demand judgment against such sheriff, or other officer, and his sureties, for the fines, penalties, and forfeitures mentioned in such writs, or for so much thereof as he shall have received on such execution or commitment, or the whole amount thereof in case he shall have suffered such defendant or defendants to escape; and the court shall give judgment accordingly, and award execution thereon.

HISTORY: Codes, 1857, ch. 61, art. 308; 1871, § 869; 1880, § 1788; 1892, § 766; 1906, § 828; Hemingway’s 1917, § 616; 1930, § 619; 1942, § 1563.

Cross References —

Actions against officers for money collected or property taken, see §§9-7-89,11-23-3.

Liability of clerk of the justice court for money collected, see §9-11-23.

Failure of constable to execute and return execution, see §19-19-9.

Liability of sheriff for mishandling money collected, see §19-25-39 et seq.

Duty of legal representative to promptly pay public monies of deceased officer, see §25-1-67.

Duty and liability of public officer for depositing and distributing public funds, see §§25-1-69 through 25-1-73.

Another section derived from same 1942 code section, see §99-19-67.

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 335- 356.

CJS.

67 C.J.S., Officers and Public Employers §§ 178-192.

§ 11-7-221. Liability of officers for default as to fines.

Clerks, sheriffs, and other officers shall be liable to the same proceedings for any neglect of duty, in respect to executions for fines, penalties, and forfeitures, as in case of executions in civil cases.

HISTORY: Codes, 1857, ch. 61, art. 308; 1871, § 869; 1880, § 1788; 1892, § 766; 1906, § 828; Hemingway’s 1917, § 616; 1930, § 620; 1942, § 1564.

Cross References —

Motions against officers for money collected, see §9-7-89.

Another section derived from same 1942 code section, see §99-19-69.

JUDICIAL DECISIONS

1. In general.

A clerical omission to place an order on the minutes of the proper term is always subject to correction at any succeeding term. Powers v. State, 83 Miss. 691, 36 So. 6, 1903 Miss. LEXIS 90 (Miss. 1903), overruled, Jones v. State, 144 Miss. 52, 109 So. 265, 1926 Miss. LEXIS 341 (Miss. 1926).

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 344, 345, 347, 358, 365.

CJS.

67 C.J.S., Officers and Public Employees §§ 186-191.

Uniform Enforcement of Foreign Judgments

§ 11-7-301. Definition.

In Sections 11-7-301 through 11-7-309 “foreign judgment” means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

HISTORY: Laws, 1984, ch. 403, § 1, eff from and after July 1, 1984.

Comparative Laws from other States —

Alabama: Code of Ala. §§6-9-230 through 6-9-238.

Arizona: A.R.S. §§ 12-1701 through 12-1708.

Arkansas: A.C.A. §§16-66-601 through 16-66-608.

Colorado: C.R.S. §§13-53-101 through 13-53-108.

Connecticut: Conn. Gen. Stat. §§ 52-604 through 52-609.

Delaware: 10 Del. C. §§ 4781 through 4787.

District of Columbia: D.C. Code §§ 15-351 through 15-357.

Florida: Fla. Stat. §§ 55.501 through 55.509.

Georgia: O.C.G.A. §§9-12-130 through9-12-138.

Hawaii: H.R.S. §§ 636C-1 through 636C-8.

Idaho: Idaho Code § 10-1301 et seq.

Iowa: Iowa Code §§ 626A.1 through 626A.8.

Kansas: K.S.A. §§ 60-3001 through 60-3008.

Kentucky: K.R.S. §§ 426.950 through 426.990.

Louisiana: La. R.S. §§ 13:4241 through 13:42478.

Maine: 14 M.R.S. §§ 8001 through 8008.

Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 11-801 through 11-807.

Minnesota: Minn. Stat. §§ 548.26 through 548.33.

Missouri: Mo. Rev. Stat. § 511.760.

Montana: Mont. Code Anno. §§25-9-501 through25-9-508.

Nebraska: R.R.S. Neb §§ 25-1587.01 through 25-1587.09.

Nevada: Nev. Rev. Stat. Ann. §§ 17.330 through 17.400.

New Hampshire: R.S.A. §§ 524-A:1 through 524-A:8.

New Jersey: N.J. Stat. §§ 2A:49A-25 through 2A:49A-33.

New Mexico: N.M. Stat. Ann. §§39-4A-1 through39-4A-6.

New York: NY CLS CPLR §§ 5401 through 5408.

North Carolina: N.C. Gen. Stat. §§ 1C-1701 through 1C-1761.

North Dakota: N.D. Cent. Code §§ 28-20.1-01 through 28-20.1-08.

Ohio: O.R.C §§ 2329.021 through 2329.12.

Oklahoma: 12 Okl. St. §§ 719 through 726.

Oregon: O.R.S. §§ 24.105 through 24.175.

Pennsylvania: 42 Pa.C.S. § 4306.

Rhode Island: R.I. Gen. Laws §§9-32-1 through9-32-8.

South Carolina: S.C. Code Ann. §§15-35-900 through15-35-960.

South Dakota: S.D. Codified Laws §§15-16A-1 through15-16A-10.

Tennessee: Tenn Code. Ann. §§26-6-101 through 26-6-107.

Texas: Tex. Civ. Prac. & Rem. Code §§ 35.001 through 35.008.

Utah: Utah Code Ann. §§78-22a-1 through78-22a-8.

Virgin Islands: 5 V.I.C. 551 through 558.

Virginia: Va. Code Ann. §§ 8.01-465.1 through 8.01-465.5.

Washington: Rev. Code Wash. §§ 6.36.010 through 6.36.910.

West Virginia: W. Va. Code §§55-14-1 through55-14-8.

Wisconsin: Wis. Stat. § 806.24.

Wyoming: Wyo. Stat. 1-17-701 through 1-17-707.

Cross References —

Foreign judgment, lien, see §11-7-195.

JUDICIAL DECISIONS

1. Courts.

Circuit court properly granted summary judgment to a bankruptcy trustee and allowed its foreign bankruptcy judgment to be enrolled because the judgment debtor raised no dispute of material facts in the enrollment action or evidence supporting either of the recognized exceptions to the requirement of giving full faith and credit to foreign judgments, and the judgment debtor also failed to set forth any facts supporting a procedural-due-process violation. Price v. Pereira, 172 So.3d 1168, 2014 Miss. App. LEXIS 319 (Miss. Ct. App. 2014).

A judgment rendered by a so-called “Constitutional District Court of Common Law” in Arkansas simply did not exist in the eyes of the Constitution or statutes of the United States, the states of Mississippi, Arkansas or any other state and, therefore, such judgment was not enforceable in Mississippi under the Uniform Enforcement of Foreign Judgments Act. Tennessee Props., Inc. v. Southern Pilot Ins. Co., 766 So. 2d 44, 2000 Miss. App. LEXIS 312 (Miss. Ct. App. 2000).

RESEARCH REFERENCES

ALR.

Uniform Enforcement of Foreign Judgment Act. 72 A.L.R.2d 1255.

Requirement of full faith and credit to foreign judgment for punitive damages. 44 A.L.R.3d 960.

Construction and application of Uniform Foreign Money – Judgment Recognition Act. 100 A.L.R.3d 792.

Validity, construction, and application of Uniform Enforcement of Foreign Judgments Act. 31 A.L.R.4th 706.

Construction and application of Uniform Foreign Money – Judgments Recognition Act. 88 A.L.R.5th 545.

Am. Jur.

47 Am. Jur. 2d Judgments §§ 690 et seq.

15 Am. Jur. Pl & Pr Forms (Rev), Judgments, Form 89 (petition or application-for registration of foreign judgment).

CJS.

50 C.J.S. Judgments § 1297.

Law Reviews.

Hoffheimer, Mississippi Conflict of Laws. 67 Miss. L. J. 175 1997.

§ 11-7-303. Filing copy of foreign judgment; enforcement.

A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state or any rule promulgated and adopted by the Mississippi Supreme Court may be filed in the office of the clerk of the circuit court of any county in this state. Said clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any county in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of any county in this state and may be enforced or satisfied in like manner, subject to the provisions of Section 15-1-45. Any foreign judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state, and shall not be enforced or satisfied against any such property.

HISTORY: Laws, 1984, ch. 403, § 2; Laws, 1991, ch. 371, § 1; Laws, 1995, ch. 565, § 5, eff from and after July 1, 1995.

Cross References —

Foreign judgment, lien, see §11-7-195.

JUDICIAL DECISIONS

1. In general.

2. Requirements.

1. In general.

Mississippi is required by the United States Constitution, Art. IV, Sec. 1, to give full faith and credit to all final judgments of other states and federal courts unless (1) the foreign judgment was obtained as a result of some false representation without which the judgment would not have been rendered, or (2) the rendering court did not have jurisdiction over the parties or the subject matter; however, in order to challenge a foreign judgment on this ground, it is necessary that the challenge be timely and properly filed in Mississippi pursuant to §15-1-45. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

In order for full faith and credit to apply, the foreign court must have addressed the merits of the case in rendering its judgment. However, this general rule does not apply if the rendering court did not have jurisdiction over the parties or the subject matter or if the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered. If a foreign judgment is collaterally attacked on subject matter grounds, the court may consider extrinsic evidence only to show that the foreign judgment is void. When the attack is on grounds of extrinsic fraud, a distinction must be made between fraud involving the merits and fraud which enables a party to procure a judgment that he or she otherwise would not have obtained. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

The procedure for properly enrolling a foreign judgment in Mississippi is as follows: (1) the judgment creditor must file an affidavit and a copy of the foreign judgment with the circuit court; (2) the circuit clerk promptly mails notice to the judgment debtor; and (3) no action may be taken for 20 days after the foreign judgment is filed. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

The requirements of full faith are tempered by some basic limitations. The primary limitation is that full faith and credit does not apply if the rendering court did not have jurisdiction over the parties in the subject matter. When a foreign judgment is collaterally attacked on subject matter grounds, extrinsic evidence is admissible, but only to show that the foreign judgment is void. The courts of this state may inquire into no question other than those which would be considered upon collateral attack in the state in which the judgment was rendered. If the law of the state where the judgment was obtained would require the courts of that state to grant relief to the judgment debtor, this state will similarly grant relief. Sollitt v. Robertson, 544 So. 2d 1378, 1989 Miss. LEXIS 282 (Miss. 1989).

2. Requirements.

Dismissal of enrollment and enforcement of an Ohio judgment rendered against a Mississippi corporation was appropriate because the Ohio court did not have personal jurisdiction over the corporation because, although the corporation initiated contact with an Ohio limited liability company through a request for a bid and negotiated a contract with the company for training in Mississippi, the corporation did not transact any business in Ohio under Ohio’s long arm-statute and due process requirements for personal jurisdiction in Ohio were not met. AquaSeal Resurfacing LLC v. Jefcoat Rec. & Constr., Inc., — So.3d —, 2019 Miss. App. LEXIS 112 (Miss. Ct. App. Mar. 26, 2019).

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; the clerk issued the writ returnable to the circuit court, an act not authorized until the requirements of the Uniform Enforcement of Foreign Judgments Act (Act), Miss. Code Ann. §§11-7-301 to11-7-309, were met. 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).

§ 11-7-305. Affidavit of filing; notice; execution.

  1. At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of the circuit court, as the case may be, an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor.
  2. Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor’s lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
  3. No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until twenty (20) days after the date the judgment is filed.

HISTORY: Laws, 1984, ch. 403, § 3, eff from and after July 1, 1984.

Cross References —

Foreign judgment, lien, see §11-7-195.

JUDICIAL DECISIONS

1. In general.

Circuit court did not err in giving full faith and credit to a North Carolina judgment and ordering the judgment debtor’s bank to disburse the garnished funds to the judgment creditor’s attorney because the debtor’s arguments regarding lack of notice and punitive damages were barred by res judicata and untimely where the debtor failed to contest the enrollment of the judgment within the 20 days allowed by statute, and the record reflected no motion for a new trial or direct appeal of the judgment. Eagle Green Energy, Inc. v. Forsite Dev., Inc., 225 So.3d 565, 2017 Miss. App. LEXIS 501 (Miss. Ct. App. 2017).

Doctor enrolled the New Mexico judgment on March 3, 1999, and the clerk mailed notice of the enrollment on that date, and the attorney then had 20 days to contest the enrollment of the judgment; where the attorney’s response was filed on April 28, 1999, outside the 20-day limit, the attorney’s defenses to the enrollment which alleged false representations by the doctor were not properly before the trial court. Schwartz v. Hynum, 933 So. 2d 1039, 2006 Miss. App. LEXIS 521 (Miss. Ct. App. 2006).

The procedure for properly enrolling a foreign judgment in Mississippi is as follows: (1) the judgment creditor must file an affidavit and a copy of the foreign judgment with the circuit court; (2) the circuit clerk promptly mails notice to the judgment debtor; and (3) no action may be taken for 20 days after the foreign judgment is filed. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

An ex-husband’s filing of a suit in tort against his ex-wife was not a proper response to her attempt to enforce foreign judgments for unpaid child support and attorney’s fees, in spite of his argument that the law suit was a consolidated answer to the efforts to enroll and execute on the 4 judgments. Even if the law suit were a timely and proper response, it would otherwise fail because the record reflected proper notice in accordance with §11-7-301 et seq., and the “response” collaterally attacked the validity and amounts of the underlying judgments which may not be attacked in Mississippi. Thus, the judgments were entitled to full faith and credit in Mississippi. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

§ 11-7-307. Appeal; stay of execution; security.

  1. If the judgment debtor shows the circuit court of any county that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.
  2. If the judgment debtor shows the circuit court of any county any ground upon which enforcement of a judgment of any court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

HISTORY: Laws, 1984, ch. 403, § 4, eff from and after July 1, 1984.

Cross References —

Foreign judgment, lien, see §11-7-195.

JUDICIAL DECISIONS

1. In general.

An ex-husband’s filing of a suit in tort against his ex-wife was not a proper response to her attempt to enforce foreign judgments for unpaid child support and attorney’s fees, in spite of his argument that the law suit was a consolidated answer to the efforts to enroll and execute on the 4 judgments. Even if the law suit were a timely and proper response, it would otherwise fail because the record reflected proper notice in accordance with §11-7-301 et seq., and the “response” collaterally attacked the validity and amounts of the underlying judgments which may not be attacked in Mississippi. Thus, the judgments were entitled to full faith and credit in Mississippi. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

RESEARCH REFERENCES

Law Reviews.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss. L.J. 49, March, 1985.

§ 11-7-309. Alternative rights of judgment creditor.

The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under Sections 11-7-301 through 11-7-309 remains unimpaired.

HISTORY: Laws, 1984, ch. 403, § 5, eff from and after July 1, 1984.

Cross References —

Foreign judgment, lien, see §11-7-195.

Chapter 9. Practice and Procedure in County Courts and Justice Courts

Article 1. County Courts.

§ 11-9-1. Writs returnable to other courts may be made returnable to county court; acts of justice court judge, clerk, judge, chancellor, or other officer may be done in behalf of county court.

Whenever under any statute a writ is made returnable to, or the institution of any suit or proceeding is required to be in, a justice court, general or special, or a circuit or chancery court, or when in respect to such matters any justice court judge, or clerk, or judge or chancellor, or other officer, is empowered to do any act in or about any of said courts, the said writs may be made returnable to the county court in any cause or matter there pending or which, within its jurisdiction, is there to be instituted, and all the said acts of the officers aforesaid may be done in behalf of or in respect to the county court in all such matters and causes to the same extent as had the county court been expressly included in each and every of such statutes first aforementioned.

HISTORY: Codes, 1930, § 696; 1942, § 1607; Laws, 1926, ch. 131; Laws, 1991, ch. 573, § 22, eff from and after July 1, 1991.

Cross References —

Judges, terms, general powers and duties of county courts, see §9-9-1 et seq.

Rules of pleading and practice in chancery courts in general, see §11-5-1 et seq.

Rules of pleading in civil cases in circuit court, see §11-7-1 et seq.

Application to all courts of circuit court civil practice provisions, see §11-7-1.

Partition of personalty by county court or justice court judges, see §11-21-73.

Unlawful entry and detainer proceedings in county court, see §11-25-101 et seq.

Suits against state or its political subdivisions, see §11-45-1 et seq.

Rule that plaintiff’s attorney must state residence of plaintiff upon demand of defendant, see §11-49-1.

Rules of evidence generally, see §13-1-1 et seq.

Process, notice and publication generally, see §13-3-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Procedural rules applicable to practice in Mississippi circuit and county courts, see URCCC 1.01 et seq.

JUDICIAL DECISIONS

1. In general.

2. Pleading and practice.

1. In general.

In a prosecution for contributing to the delinquency of a minor, where the affidavit was amended to add public drunkenness as an additional act and the record did not disclose any evidence as to surprise and there was no motion by defendant for continuance nor process for additional witnesses, the defendant could not now complain of the amendment. Hall v. State, 211 Miss. 90, 50 So. 2d 924, 1951 Miss. LEXIS 334 (Miss. 1951).

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).

To confer jurisdiction on county court in misdemeanor case, State need only allege and prove crime was committed in county. Webb v. State, 158 Miss. 715, 131 So. 262, 1930 Miss. LEXIS 108 (Miss. 1930).

Rules of practice and procedure of justice, chancery, and circuit courts in cases within county court jurisdiction, and in force when county court was established, are applicable to county courts. Speir v. Moseley, 158 Miss. 63, 130 So. 53, 1930 Miss. LEXIS 18 (Miss. 1930); Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

2. Pleading and practice.

County court’s allowance of an amendment correcting description of certain tires and tubes and making the description applicable to both the declaration and affidavit, was proper exercise of its discretion in light of the fact that the defendants were not prejudiced. Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So. 2d 64, 1952 Miss. LEXIS 320 (Miss. 1952).

Since an action of replevin, prior to the creation of county courts, would have been in the jurisdiction of the circuit court, under this section, the procedure in such action in the county court must be the same that it would have been in the circuit court. Winn v. Eatherly, 187 Miss. 159, 192 So. 431, 1939 Miss. LEXIS 98 (Miss. 1939).

Under this section [Code 1942, § 1607], an eminent domain proceeding should be tried in the county court upon a full hearing and the giving of appropriate instructions for the parties, as in other civil causes tried in such court, and it was error to limit the instruction to the one provided in Code 1942 § 2760, with respect to such proceedings before a justice of the peace, requiring a trial de novo in the circuit court. Mississippi State Highway Com. v. Reddoch, 184 Miss. 302, 186 So. 298, 1939 Miss. LEXIS 53 (Miss. 1939).

In unlawful entry and detainer action in county court, error in pleadings held not to affect judgment where case was tried on merits on evidence that would have been proper and necessary had pleadings been in accord with statute. Holmes v. Elmer, 182 Miss. 171, 181 So. 325, 1938 Miss. LEXIS 171 (Miss. 1938).

In view of the provision of this section [Code 1942, § 1607] that in all matters taken away from the jurisdiction of other courts and given to the jurisdiction of the county court, the pleadings, practice, and procedure shall be the same in the county court as in the courts formerly having jurisdiction of such matters, it is plain that the legislature did not intend to repeal in its entirety the chapter on eminent domain. Mississippi State Highway Dep't v. Haines, 162 Miss. 216, 139 So. 168, 1932 Miss. LEXIS 121 (Miss. 1932).

§ 11-9-3. Venue of actions, suits and proceedings.

The venue of actions, suits and proceedings in the county court shall be the same as that now generally provided, or which may hereafter be provided with respect to the particular action, suit or proceedings. Provided, however, that all suits and matters filed in the county court which, if there were no county court, would be triable in the justice court, shall be tried at the courthouse of the county or courthouse of the proper judicial district in counties having two (2) circuit and chancery court districts therein.

HISTORY: Codes, 1930, § 695; 1942, § 1606; Laws, 1926, ch. 131; Laws, 1981, ch. 471, § 23; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor’s Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Venue of civil actions or suits generally, see §11-11-1 et seq.

JUDICIAL DECISIONS

1. In general.

Jurisdiction of county court in misdemeanor case is coextensive with boundary of county wherein offense was committed, and venue of crime is that county. Webb v. State, 158 Miss. 715, 131 So. 262, 1930 Miss. LEXIS 108 (Miss. 1930).

RESEARCH REFERENCES

ALR.

Venue in action for malicious prosecution. 12 A.L.R.4th 1278.

Article 3. Justice Courts.

§ 11-9-101. Where suits to be brought.

  1. The jurisdiction of the justice court shall be coextensive with its county, and any process may be issued in matters within its jurisdiction, to be executed in any part of the county. Every defendant may be sued only in the county in which he resides or where the cause of action arose and if a defendant does not reside in the State of Mississippi or has no fixed place of residence, he shall be sued in the county where the cause of action arose. Whenever by reason of interest, relationship to one of the parties, or other like cause, any justice court judge shall be disqualified to preside in any case before him, the same shall be transferred to a justice court judge in the county, free from such objection, who shall hear and determine the same. Nothing herein contained shall be construed as authorizing or empowering the clerk of the justice court or any justice court judge to perform any official act outside of the territorial boundaries of their county.
  2. The provisions of this section shall not apply to any cause of action commenced before January 1, 1984; and any such action shall be concluded in accordance with state law as it was constituted before that date.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (10); 1857, ch. 58, art. 8; 1871, §§ 1303, 1340; 1880, §§ 2191, 2231; 1892, § 2395; 1906, § 2724; Hemingway’s 1917, § 2223; 1930, § 2072; 1942, § 1806; Laws, 1955 Ex. ch. 40; Laws, 1960, ch. 238; Laws, 1981, ch. 471, § 1; Laws, 1982, ch. 423, § 1; Laws, 1992, ch. 389 § 1, eff from and after passage (approved April 27, 1992).

Editor’s Notes —

Laws, 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, effective from and after March 31, 1982).

Cross References —

Election, general powers and duties of justice court judges, see § 9-11-1 et seq.

Partition of personalty by county court or justice court judges, see §11-21-73.

Trial of right of property in justice court judges, see §11-23-25 et seq.

Unlawful entry and detainer proceedings before justice court judges, see §11-25-1 et seq.

Attachment at law against debtors, see §11-33-1 et seq.

Garnishment proceedings, see §11-35-1 et seq.

Rules of evidence generally, see §13-1-1 et seq.

Process, notice and publication generally, see §13-3-1 et seq.

Where suits against incorporated cities, villages, or towns are to be brought, see §21-1-5.

Prosecutions before justice court judges, see §99-33-1 et seq.

Procedural rules applicable to practice in Mississippi justice courts, see Uniform Rules of Procedure for Justice Court, Rule 1.01 et seq.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction in general.

3. Process.

4. Freeholders or householders determined.

5. Venue.

6. —District of defendant’s residence.

7. —Where contract made or liability incurred.

8. —Situs of property.

9. —Actions against nonresidents.

10. Transfer of actions.

11. —Disqualification of justice.

12. Waiver.

1. In general.

Mississippi criminal statutory fees systems for compensating justices of the peace in Hinds and DeSoto Counties are violative of defendant’s due process rights to trial before impartial tribunal under the Tumey-Ward test, where the possibility existed that judges in the aforementioned counties would compete for business by currying favor with arresting officers or taking biased actions to increase their case load, and where a judge might minimize the burden of proof required to convict the defendant or might be less than diligent in protecting the defendant’s constitutional rights. Brown v. Vance, 637 F.2d 272, 1981 U.S. App. LEXIS 20552 (5th Cir. Miss. 1981).

This section [Code 1942, § 1806] does not affect the provision (Code 1942, § 2955) requiring actions against a county to be brought in the court sitting at the county site, notwithstanding joinder of an individual as joint defendant. Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692, 1930 Miss. LEXIS 267 (Miss. 1930).

This section [Code 1942, § 1806] has no application to a bastardy proceeding which is governed by Code of 1892, § 249 [Code of 1942, § 383]. Johnson v. Walker, 86 Miss. 757, 39 So. 49, 1905 Miss. LEXIS 94 (Miss. 1905).

2. Jurisdiction in general.

Where a prosecution charging trespass upon land originated in the district of a certain justice of the peace, a justice of the peace of another district of the same county was not without jurisdiction to try the case, since the jurisdiction of every justice of the peace is coextensive with his county, and he is authorized to issue any process in matters within his jurisdiction, to be executed in any part of his county. Walker v. State, 192 Miss. 409, 6 So. 2d 127, 1942 Miss. LEXIS 25 (Miss. 1942).

Jurisdiction of justice of peace of transitory causes of action against nonresidents is as complete as that of circuit courts, except as to amount. McDonough v. Stringer, 155 Miss. 179, 124 So. 334, 1929 Miss. LEXIS 280 (Miss. 1929).

A justice of the peace whose district is partly in two circuit court districts of the county may hold his court in either or both districts and will have entire jurisdiction of persons within his district, but appeals from his court to the circuit court must be to the circuit court of the district in which the suit is tried. Woods v. Speer, 127 Miss. 593, 90 So. 322, 1921 Miss. LEXIS 262 (Miss. 1921).

Where a justice of the peace has two regular places in his district and alternates in holding his terms of court on certain days at specific places, a writ of garnishment on judgment rendered at one place may be returnable to the next regular term of his court at said place, although a regular intervening term of court may be held at the other place. Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69, 1908 Miss. LEXIS 207 (Miss. 1908).

Under the Constitution providing for the election in each county by districts of justices of the peace, it is not in the power of the legislature to give the mayor of a town jurisdiction of a justice as to that part of the justice’s district outside the town. Heggie v. Stone, 70 Miss. 39, 12 So. 253, 1892 Miss. LEXIS 113 (Miss. 1892).

3. Process.

The 1960 amendment of this section [Code 1942, § 1806] does not limit the power of a justice of the peace to issue a search warrant outside his district. Curtis v. State, 247 Miss. 675, 158 So. 2d 693, 1963 Miss. LEXIS 342 (Miss. 1963).

A justice of the peace can take an affidavit and issue a search warrant while he is physically outside of his district. Curtis v. State, 247 Miss. 675, 158 So. 2d 693, 1963 Miss. LEXIS 342 (Miss. 1963).

Issuance of a search warrant by a justice of the peace of one district of the county from another justice of the peace district of the county did not make the search warrant and subsequent conviction of unlawful possession of intoxicating liquor void, since such issuance of the search warrant was not a judicial act and was authorized by this section [Code 1942, § 1806]. McGowan v. State, 189 Miss. 450, 196 So. 222, 1940 Miss. LEXIS 103 (Miss. 1940).

A justice of the peace in one district of the county may issue warrant returnable before a justice of the peace of another district. Goffredo v. State, 145 Miss. 66, 111 So. 131, 1927 Miss. LEXIS 141 (Miss. 1927).

4. Freeholders or householders determined.

Term “freeholder” within statute governing venue in actions triable before justice of peace refers to property. Buckley v. Porter, 160 Miss. 98, 133 So. 215, 1931 Miss. LEXIS 149 (Miss. 1931).

Term “householder” within statute governing venue in actions triable before justice of peace refers to civil status of litigant and not to property. Buckley v. Porter, 160 Miss. 98, 133 So. 215, 1931 Miss. LEXIS 149 (Miss. 1931).

Term “resides” within statute governing venue in actions triable before justice of peace means where person has settled abode for time. Buckley v. Porter, 160 Miss. 98, 133 So. 215, 1931 Miss. LEXIS 149 (Miss. 1931).

Mother who with child rented land in L. county and made crop thereon held “householder” “residing” in such county within statute governing venue in justice court actions. Buckley v. Porter, 160 Miss. 98, 133 So. 215, 1931 Miss. LEXIS 149 (Miss. 1931).

5. Venue.

6. —District of defendant’s residence.

Where householder resides out of district of justice of peace before whom suit is brought, both justice and circuit court on appeal are without jurisdiction. Buckley v. Porter, 160 Miss. 98, 133 So. 215, 1931 Miss. LEXIS 149 (Miss. 1931).

A debt contracted in the district in which a defendant lives and having a justice of the peace qualified to act therein must be sued upon in the district of his residence. Molpus v. Bostic Lumber & Mfg. Co., 110 Miss. 883, 71 So. 16, 1916 Miss. LEXIS 223 (Miss. 1916).

A defendant freeholder or householder must be sued in the county of his residence regardless of where the debt was contracted. Gibson v. Mills, 95 Miss. 726, 49 So. 568, 1909 Miss. LEXIS 279 (Miss. 1909).

To revive a judgment before a justice of the peace the suit must be brought for under $200.00 in the district of the residence of the defendant who lives in another county. Smith v. Eubank, 89 Miss. 838, 43 So. 81, 1906 Miss. LEXIS 96 (Miss. 1906).

An action on a justice’s judgment is properly brought in the district in which the defendant resides rather than in the district in which the original judgment was procured. Wise v. Keer Thread Co., 84 Miss. 200, 36 So. 244, 1904 Miss. LEXIS 25 (Miss. 1904).

A suit upon a judgment rendered by a justice of the peace is properly brought before a justice of the district of defendant’s residence, although it was rendered by a justice of a different district. Wise v. Keer Thread Co., 84 Miss. 200, 36 So. 244, 1904 Miss. LEXIS 25 (Miss. 1904).

A justice is without jurisdiction of a suit on a debt contracted in another justice’s district of the county by a sole defendant who there resides and is a householder or freeholder of the county, there being in such other district a magistrate qualified to try the cause. Hilliard v. Chew, 76 Miss. 763, 25 So. 489, 1899 Miss. LEXIS 7 (Miss. 1899), overruled, Catlett v. Drummond, 113 Miss. 450, 74 So. 323, 1917 Miss. LEXIS 120 (Miss. 1917).

A justice of the peace of a district other than the one where the defendant, a freeholder or householder, resides and other than the one where the property is found, has no jurisdiction of a replevin suit. Turner v. Lilly, 56 Miss. 576, 1879 Miss. LEXIS 168 (Miss. 1879).

A justice of the peace has no jurisdiction of a suit alone against a freeholder or householder of another county. Cain v. Simpson, 53 Miss. 521, 1876 Miss. LEXIS 107 (Miss. 1876).

7. —Where contract made or liability incurred.

A justice of the peace of the justice district of the county where contract is made, or liability incurred, may render judgment in suit thereon, although the defendant is a freeholder and householder of another justice district of the county and pleads to the jurisdiction. Johnson v. Porter, 143 Miss. 652, 109 So. 601, 1926 Miss. LEXIS 303 (Miss. 1926).

A justice of the peace has jurisdiction of suits in tort occurring in his district even if defendant is a freeholder and householder of another justice of the peace district which has a competent justice to try cause. Harper v. Adams, 141 Miss. 806, 106 So. 354, 1925 Miss. LEXIS 222 (Miss. 1925).

A debt contracted in the district in which a defendant lives and having a justice of the peace qualified to act therein must be sued upon in the district of his residence. Molpus v. Bostic Lumber & Mfg. Co., 110 Miss. 883, 71 So. 16, 1916 Miss. LEXIS 223 (Miss. 1916).

A nonresident executor appointed by the chancery court of a county in this state may be sued in a justice’s court of another county if the contract sued upon was made in the justice’s district in which the suit is brought and he be there personally served with process. Williams v. Stewart, 79 Miss. 46, 30 So. 1, 1901 Miss. LEXIS 27 (Miss. 1901).

A justice is without jurisdiction of a suit on a debt contract in another justice’s district of the county by a sole defendant who there resides and is a householder or freeholder of the county, there being in such other district a magistrate qualified to try the cause. Hilliard v. Chew, 76 Miss. 763, 25 So. 489, 1899 Miss. LEXIS 7 (Miss. 1899), overruled, Catlett v. Drummond, 113 Miss. 450, 74 So. 323, 1917 Miss. LEXIS 120 (Miss. 1917).

8. —Situs of property.

An action to enforce a mechanic’s lien upon an automobile is an action in rem and may be brought in the jurisdiction in which the auto is found. West Point Motor Car Co. v. McGhee, 122 Miss. 604, 84 So. 690, 1920 Miss. LEXIS 458 (Miss. 1920).

Replevin can be brought in a county where the goods are found, even if the defendant be a freeholder resident of another county. Ellison v. Lewis, 57 Miss. 588, 1880 Miss. LEXIS 6 (Miss. 1880).

A justice of the peace of a district other than the one where the defendant, a freeholder or householder, resides and other than the one where the property is found, has no jurisdiction of a replevin suit. Turner v. Lilly, 56 Miss. 576, 1879 Miss. LEXIS 168 (Miss. 1879).

9. —Actions against nonresidents.

Action against a nonresident of the state may be brought in any justice of the peace district in which he may be found. McDonough v. Stringer, 155 Miss. 179, 124 So. 334, 1929 Miss. LEXIS 280 (Miss. 1929).

A justice has jurisdiction to issue the writ and try the cause in an attachment suit against a nonresident, although the only property attached is in another district of the county, and this, too, where there is a qualified and acting justice in such other district. Griggs v. Jesse French Piano & Organ Co., 70 Miss. 211, 14 So. 24, 1892 Miss. LEXIS 143 (Miss. 1892).

10. Transfer of actions.

When on appeal from a justice’s court the case is reversed for want of jurisdiction and papers are sent back and transferred to a justice having jurisdiction, the claimant of goods attached for rent is not entitled to be notified of the transfer. Pierce v. Watkins, 74 Miss. 394, 21 So. 148, 1896 Miss. LEXIS 155 (Miss. 1896).

If a freeholder or householder be sued out of the proper district, the justice is without power to transfer the cause. He must dismiss it. Cain v. Simpson, 53 Miss. 521, 1876 Miss. LEXIS 107 (Miss. 1876).

11. —Disqualification of justice.

Objection to disqualification of judge must be made before such judge loses control over his judgment by adjournment. Dixon v. Rowland, 143 Miss. 270, 108 So. 807, 1926 Miss. LEXIS 264 (Miss. 1926).

Objection to disqualification of judge because of interest or relationship to party can be availed of only by objection made on that ground. Qualification of a justice of the peace, presiding in liquor prosecution, cannot be attacked collaterally in habeas corpus proceedings. Dixon v. Rowland, 143 Miss. 270, 108 So. 807, 1926 Miss. LEXIS 264 (Miss. 1926).

A party to a suit before a disqualified justice, who has consented to call another justice to sit in his place, thereby getting substantially the benefit of a transfer to another justice, cannot thereafter complain of want of jurisdiction in the justice called in. Cross v. Levy, 57 Miss. 634, 1880 Miss. LEXIS 24 (Miss. 1880).

12. Waiver.

The failure of the defendant to object to jurisdiction at the proper time is a waiver to the right. Stanley v. Cruise, 134 Miss. 542, 99 So. 376, 1924 Miss. LEXIS 304 (Miss. 1924).

The right to be sued in the district of residence may be waived by a defendant by his failure to appear and plead the facts. Catlett v. Drummond, 113 Miss. 450, 74 So. 323, 1917 Miss. LEXIS 120 (Miss. 1917).

OPINIONS OF THE ATTORNEY GENERAL

An individual may be instructed prior to filing an action that the county justice court might lack proper jurisdiction, but if the plaintiff still persists in filing the action in that court, the clerk should file the action and collect the proper fees; the justice court judge may, prior to issuing a summons, order the case dismissed for lack of jurisdiction and, in such a case, the plaintiff would not be entitled to his filing fee but would be entitled to refund of the constable’s fee. Shirley, Nov. 16, 2001, A.G. Op. #01-0697.

RESEARCH REFERENCES

ALR.

Disqualification of judge for bias against counsel for litigant. 54 A.L.R.5th 575.

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 8.

CJS.

51 C.J.S., Justices of the Peace § 46.

§ 11-9-103. If two or more defendants, where brought.

In suits or proceedings against two (2) or more defendants, jointly or jointly and severally liable, it shall be lawful to bring the suit in the justice court of the county wherein either of the defendants reside or where the cause of action arose; and such justice court shall have power to issue a summons or other process to bring in all codefendants from any other county.

HISTORY: Codes, 1871, § 1320; 1880, § 2192; 1892, § 2396; 1906, § 2725; Hemingway’s 1917, § 2224; 1930, § 2073; 1942, § 1807; Laws, 1981, ch. 471, § 24; Laws, 1982, ch. 423, § 28; Laws, 1992, ch. 389 § 2, eff from and after passage (approved April 27, 1992).

Cross References —

Venue of actions, generally, see §11-11-1 et seq.

JUDICIAL DECISIONS

1. In general.

County must be sued in court having jurisdiction of amount sitting at county site, though another person is named as joint defendant. Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692, 1930 Miss. LEXIS 267 (Miss. 1930).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 8.

CJS.

51 C.J.S., Justices of the Peace § 46.

§ 11-9-105. How suit begun in civil cases.

Anyone desiring to sue in the justice court shall lodge with the clerk of the justice court the evidence of debt, statement of account, or other written statement of the cause of action. The clerk shall record all filings and shall, as far as practicable, assign the cases to each justice court judge in the county on a rotating basis to insure equal distribution of the cases among the judges of the county; however, in all counties in which the courtrooms provided by the county for use of the justice court judges are located in more than one (1) place in the county, the clerk, in addition to assigning cases to the judges on a rotating basis, may also assign a courtroom for each case, such assignment may be made based upon the proximity of the courtroom to the defendant’s residence or place of business. The clerk shall issue a summons for the defendant, returnable to the next term of the court of the justice court judge to which the case is assigned, which shall be executed five (5) days before the return day; but if the process be executed less than five (5) days before the return day, the service shall be good to require the appearance of the defendant at the term next succeeding the one to which it is returnable. Any summons issued within five (5) days before a term of the court shall be made returnable to the next succeeding term, unless a shorter day be named, in pursuance of the provision for a trial without delay in the case of nonresident or transient defendants. When the case has been recorded and assigned and process issued, the clerk shall, within two (2) working days, forward certified copies of all documents pertaining to the case to the justice court judge to which the case is assigned for further processing.

HISTORY: Code, Hutchinson’s 1848, ch. 50, art. 2 (9); 1857, ch. 58, arts. 7, 10; 1871, §§ 1305, 1310; 1880, §§ 2196, 2197; 1892, § 2401; 1906, § 2730; Hemingway’s 1917, § 2229; 1930, § 2078; 1942, § 1812; Laws, 1981, ch. 471, § 13; Laws, 1982, ch. 423, § 10; Laws, 1991, ch. 551, § 1, eff from and after October 1, 1991.

Cross References —

Prepayment of court costs as prerequisite to civil jurisdiction of justice of peace court, see §9-11-10.

Trial out of term for nonresident or transient defendant in justice court, see §9-11-15.

Assignment of cases by justice court clerk in manner provided by this section, see §9-11-27.

Statute of limitations for actions brought on open accounts or unwritten contracts, see §§15-1-29,15-1-31.

Commencement of action, see Rule 2.06, Uniform Rules of Procedure for Justice Court.

JUDICIAL DECISIONS

1. In general.

2. Filing cause of action.

3. Process.

4. Evidence, admissibility of.

1. In general.

Statement of account showing name of defendant, amount of claim for rent, and period covered, held to give justice jurisdiction. Oxford Spotless Cleaners v. Mayfield, 157 Miss. 565, 128 So. 567, 1930 Miss. LEXIS 328 (Miss. 1930).

Proceedings in justices’ courts are treated with great indulgence, the substance and not the form thereof is to be considered. A. B. Smith Co. v. Jones, 75 Miss. 325, 22 So. 802, 1897 Miss. LEXIS 108 (Miss. 1897).

2. Filing cause of action.

The account, required by the statute to be filed with the declaration of the plaintiff, must state distinctly the several items of his claim against the defendant, and the particular date of the item is a necessary part of that distinctness of item which the statute requires. Griffith v. Goodin, 202 Miss. 548, 32 So. 2d 743, 1947 Miss. LEXIS 315 (Miss. 1947).

Failure of plaintiff in action to enforce a purchase money lien before a justice of the peace to attach the contract and note evidencing the transaction did not make the statement of the cause of action void where the affidavit for the writ of seizure clearly set out the cause of action, and it was not error in the circuit court on appeal to permit the plaintiff to attach them. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337, 1936 Miss. LEXIS 277 (Miss. 1936).

Written statement in declaration filed in justice court as to railroad’s blocking switch, preventing loading logs, stated cause of action. Mississippi C. R. Co. v. May, 149 Miss. 334, 115 So. 561, 1928 Miss. LEXIS 45 (Miss. 1928).

Where the cause of action consists of a contract to pay rent which is filed with a statement that $200.00 has been claimed thereon is sufficient for jurisdictional purpose. Town v. H. Lupkin & Son, 114 Miss. 693, 75 So. 546, 1917 Miss. LEXIS 80 (Miss. 1917).

The original contract or cause of action is not required to be filed, but a copy will suffice. Town v. H. Lupkin & Son, 114 Miss. 693, 75 So. 546, 1917 Miss. LEXIS 80 (Miss. 1917).

The cause of action or a copy thereof should be “lodged” with the justice of the peace. Town v. H. Lupkin & Son, 114 Miss. 693, 75 So. 546, 1917 Miss. LEXIS 80 (Miss. 1917).

A mere affidavit that defendant “is justly indebted in the sum of $160” to plaintiff, filed in a justice court, does not comply with this section [Code 1942, § 1812], requiring the filing of evidence of debt, statement of account, or other written statement of the cause of action. Greenburg v. Massey, 90 Miss. 121, 43 So. 1, 1907 Miss. LEXIS 35 (Miss. 1907).

It is sufficient to file a copy of a promissory note with the justice. Duncan v. Board of Supervisors, 64 Miss. 38, 8 So. 204, 1886 Miss. LEXIS 11 (Miss. 1886).

3. Process.

Summons issued and returnable to a special day and not to the regular term of justice court is not void but merely irregular; and where justice continued the cause to a date in the regular term, party summoned for such special day, having failed to appear on either day, was subject to default judgment. McCormick Motor Car Co. v. McDonald, 153 Miss. 409, 121 So. 121, 1929 Miss. LEXIS 40 (Miss. 1929).

Judgment in justice of peace court, pursuant to summons returnable to past date, held of no effect. Howell v. Kersh, 152 Miss. 266, 119 So. 186, 1928 Miss. LEXIS 254 (Miss. 1928).

A justice may authorize another to subscribe his name to a summons in his presence. Gooch v. Glidewell, 124 Miss. 16, 86 So. 705, 1920 Miss. LEXIS 490 (Miss. 1920).

No valid judgment can be rendered without valid service of process or an appearance or waiver of process. 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).

A constable cannot serve process outside of his district. 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).

Each defendant to a judgment must be served with process to make the judgment valid as to all. Carrollton Hardware & Implement Co. v. Marshall, 117 Miss. 224, 78 So. 7, 1918 Miss. LEXIS 166 (Miss. 1918), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

An action is begun when summons is issued and does not relate back to time of filing cause of action where summons is delayed by plaintiff’s instruction. Stewart v. Petitt, 94 Miss. 769, 48 So. 5, 1909 Miss. LEXIS 334 (Miss. 1909).

A judgment of a justice in a civil case against two or more defendants is an entirety and being void as to one is void to all. Comenitz v. Bank of Commerce, 85 Miss. 662, 38 So. 35, 1904 Miss. LEXIS 178 (Miss. 1904), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922); 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).

A judgment of a justice in a civil case against a defendant not a nonresident or transient person upon less than five days’ service of process is void. Comenitz v. Bank of Commerce, 85 Miss. 662, 38 So. 35, 1904 Miss. LEXIS 178 (Miss. 1904), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Service of a summons by a justice who issued it is void and does not confer jurisdiction over the person of the defendant. Code 1892, § 3445 [Code 1906, § 3944], authorizing the service of process in certain cases by justices of the peace does not empower a justice to serve a summons issued by himself. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 1901 Miss. LEXIS 24 (Miss. 1901).

4. Evidence, admissibility of.

Notes sued on in justice court, not shown by transcript to have been lodged with justice, held not admissible in circuit court. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

Where defendant did not, by sworn plea, deny execution of written instrument, referred to in plaintiff’s statement of cause of action and made a part thereof as contemplated by this section [Code 1942, § 1812], evidence he did not execute instrument held improperly admitted. Farad Co. v. Buckalew, 155 Miss. 194, 124 So. 333, 1929 Miss. LEXIS 279 (Miss. 1929).

Admitting copy of administrator’s bond in suit to enforce claim against estate after its approval held error, where copy of bond was not annexed to or filed with declaration. Lawson v. Dean, 144 Miss. 309, 109 So. 801, 1926 Miss. LEXIS 361 (Miss. 1926).

OPINIONS OF THE ATTORNEY GENERAL

All cases, civil and criminal, shall be assigned by the clerk to justice court judges of county in manner provided in Miss. Code Section 11-9-105. Ferguson, June 9, 1993, A.G. Op. #93-0331.

Miss. Code Section 11-9-105 provides that it is duty of justice court clerk to record all civil suits and to assign them on rotating basis to justice court judges; this section also requires clerk to issue summons for particular defendant; it also requires clerk to record and assign and issue process on any civil case and thereafter “within two (2) working days, forward certified copies of documents pertaining to the case to the justice court judge to which the case is assigned for further processing.” Ferguson, June 9, 1993, A.G. Op. #93-0331.

Miss. Code Section 11-9-105 states that, in civil suits, justice court clerk shall record all filings. Ferguson, June 9, 1993, A.G. Op. #93-0331.

Miss. Code Section 11-9-105 requires justice court clerk to assign cases to judges on a rotation basis; however, as for setting docket, judges have discretion as to cases assigned ; judges may establish procedure whereby clerk sets docket. Ferguson, June 9, 1993, A.G. Op. #93-0331.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace §§ 16- 20.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Form 22 (Summons compelling appearance before justice of the peace).

CJS.

51 C.J.S., Justices of the Peace §§ 123-144.

§ 11-9-107. Service of process by sheriff or constable.

When any process has not been returned by a constable within ten (10) working days after issuance by the clerk of the justice court, the clerk shall direct the sheriff of his county and his deputies to execute any such process of the justice court; and the sheriff and his deputies shall execute any process so directed to him by any clerk of the justice court.

HISTORY: Codes, 1857, ch. 58, art. 11; 1871, § 1311; 1880, § 2198; 1892, § 2402; 1906, § 2731; Hemingway’s 1917, § 2230; 1930, § 2079; 1942, § 1813; Laws, 1981, ch. 471, § 25; Laws, 1982, ch. 423, § 28; Laws, 1995, ch. 464, § 2, eff from and after October 1, 1995.

Cross References —

Payment to county chancery clerk of fees collected for serving process or writ issued in different county, see §9-11-20.

Duties of constables, generally, see §§19-19-5,19-19-7.

Duty of sheriff to execute and return process, see §19-25-37.

Service of summons, see Rule 2.08, Uniform Rules of Procedure for Justice Court.

JUDICIAL DECISIONS

1. In general.

The record must affirmatively show that the person authorized to execute the summons executed it. Postal Telegraph-Cable Co. v. Thompson, 121 Miss. 379, 83 So. 612, 1919 Miss. LEXIS 172 (Miss. 1919).

A city marshal who is ex-officio constable may serve process within the city limits and the presumption is in favor of its validity. Gulf & S. I. R. Co. v. Ramsey, 98 Miss. 863, 54 So. 440, 1910 Miss. LEXIS 135 (Miss. 1910).

Under the Constitution the jurisdiction of justices of the peace and the executive power of constables is limited to the districts for which they are elected. Riley v. James, 73 Miss. 1, 18 So. 930, 1895 Miss. LEXIS 117 (Miss. 1895).

OPINIONS OF THE ATTORNEY GENERAL

The law requires a justice of the peace to issue his process and direct same to the constable of the district, if there be one duly qualified to act, unless the constable has some interest in the matter in litigation, and in that event the justice of the peace should endorse his reasons on the process for directing it to someone else. Ops. Atty. Gen., 1931-33, p. 144.

This section safeguards against an impossibility on the part of a justice of the peace to obtain service of process, and a justice of the peace does not have authority to appoint a deputy constable for that purpose. Ops. Atty. Gen., 1965-67, p. 122.

Section 11-9-107 directs the justice court clerk to issue process to a constable and if the process has not been returned to the clerk within ten working days, to issue that process to the sheriff’s office to be served or executed. McKee, December 13, 1995, A.G. Op. #95-0825.

In the case where a criminal defendant has been found guilty and assessed a fine in justice court and has failed to make payment on the fine as agreed and a contempt warrant has been issued, under Section 11-9-107 all such process should be issued to a constable. If the constable does not make a return within ten days, then the process should be issued to the sheriff for service. Coleman, January 26, 1996, A.G. Op. #96-0011.

Based on Section 11-9-107, a constable must accept all warrants issued to him from the justice court clerk and make a reasonable, good faith effort to serve them. However, if the warrant has not been returned to the clerk within ten working days after issuance to the constable, the clerk must send the warrant to the sheriff’s office to be served by the sheriff or his deputies. The sheriff may not decline to accept such a warrant. Lambert, August 23, 1996, A.G. Op. #96-0577.

The duty of the clerk of the justice court to direct the sheriff of his county and his deputies to execute any process of the justice court that has not been returned by a constable within ten working days applies to civil process; a justice court is not required to issue criminal process, i.e., arrest warrants, to constables for a ten day period before directing such warrants to a sheriff’s department. Allgood, January 23, 1998, A.G. Op. #98-0011.

There is no statutory provision allowing for private process servers within the state of Mississippi other than in an 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

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 20.

62B Am. Jur. 2d, Process §§ 122, 127— 129.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Form 23 (Summons compelling appearance before justice of the peace-directed to sheriff).

CJS.

51 C.J.S., Justices of the Peace § 123.

72 C.J.S., Process § 44.

§ 11-9-109. Person appointed to execute process.

In cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the clerk of the justice court may appoint some reputable person to execute any process, the clerk to be liable on his bond for all damage which may result to a party to the cause or other person from his appointment of an insolvent or incompetent person.

HISTORY: Codes, 1857, ch. 58, art. 11; 1871, § 1311; 1880, § 2199; 1892, § 2403; 1906, § 2732; Hemingway’s 1917, § 2231; 1930, § 2080; 1942, § 1814; Laws, 1981, ch. 471, § 26; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Service of summons, see Rule 2.08, Uniform Rules of Procedure for Justice Court.

JUDICIAL DECISIONS

1. In general.

In case of special emergency a justice of the peace is authorized to appoint a private person to execute any process which the justice of the peace is authorized to issue whether such writ is returnable to his court or some other court. Gilbert v. Glenny, 135 Miss. 603, 99 So. 507, 1924 Miss. LEXIS 12 (Miss. 1924).

The appointment of a private person to serve a writ of attachment or garnishment in an emergency case is void where not in writing. Brown v. Williams-Brooke Co., 106 Miss. 187, 63 So. 351, 1913 Miss. LEXIS 121 (Miss. 1913).

The presumption of legality as to the authority of a person to serve a writ of summons prevails. Alfred v. Batson, 91 Miss. 749, 45 So. 465, 1907 Miss. LEXIS 179 (Miss. 1907).

A justice cannot specially deputize a private person to execute a writ of attachment in another county, even in a case of emergency. Miller v. Edwards, 75 Miss. 739, 23 So. 426, 1898 Miss. LEXIS 19 (Miss. 1898); Barnett v. Ring, 55 Miss. 97, 1877 Miss. LEXIS 111 (Miss. 1877); Bates v. Crow, 57 Miss. 676, 1880 Miss. LEXIS 33 (Miss. 1880).

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 11-9-109, which states that “in cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the clerk of the justice court may appoint some reputable person to execute any process”, by its own terms does not apply to papers served by deputy; in any case, there is no authority to pay individual appointed under this section to serve process. Wilkerson, Mar. 10, 1993, A.G. Op. #93-0120.

There is no statutory provision allowing for private process servers within the state of Mississippi other than in an 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

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 20.

62B Am. Jur. 2d, Process §§ 122, 127— 129.

CJS.

72 C.J.S., Process §§ 45, 46.

§ 11-9-111. Property and process delivered to office.

Property seized in execution of any process by one appointed by the clerk of the justice court to execute it shall be immediately delivered, with the process, to the sheriff of the county; and the person from whom the property was taken shall be at once informed who has it. Such property shall be considered and dealt with as if it had been seized by the officer to whom it was delivered at the time of its delivery to him.

HISTORY: Codes, 1880, § 2200; 1892, § 2404; 1906, § 2733; Hemingway’s 1917, § 2232; 1930, § 2081; 1942, § 1815; Laws, 1981, ch. 471, § 27; Laws, 1982, ch. 423, § 28; Laws, 1991, ch. 324, § 1, eff from and after July 1, 1991.

Cross References —

Levy on personal property, see §13-3-125.

JUDICIAL DECISIONS

1. In general.

A return on a writ of replevin by a person appointed by a justice of the peace is void and the court has no jurisdiction unless the defendant appears, but upon his appearance and motion to quash the writ the court has jurisdiction of him. Gilbert v. Glenny, 135 Miss. 603, 99 So. 507, 1924 Miss. LEXIS 12 (Miss. 1924).

Although one specially deputized to execute process is required to deliver the same together with the property seized to the sheriff or constable, a claimant who gives bond and obtains from such person property levied upon by him, is estopped to take advantage of the irregularity. Spears v. Robinson, 71 Miss. 774, 15 So. 111, 1894 Miss. LEXIS 48 (Miss. 1894); State ex rel. Harland v. Depeder, 65 Miss. 26, 3 So. 80, 1887 Miss. LEXIS 8 (Miss. 1887).

§ 11-9-113. Process returned by sheriff or constable.

The process so delivered to the sheriff or constable shall be returned by him to the clerk of the justice court, according to its command.

HISTORY: Codes, 1880, § 2201; 1892, § 2405; 1906, § 2734; Hemingway’s 1917, § 2233; 1930, § 2082; 1942, § 1816; Laws, 1981, ch. 471, § 28; Laws, 1982, ch. 423, § 15, eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor’s Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Payment to county chancery clerk of fees collected for serving process or writ issued in different county, see §9-11-20.

Return of writ of attachment by sheriff when writ is served by one other than sheriff, see §11-33-27.

Marking and return of process by sheriff, see §13-3-37.

OPINIONS OF THE ATTORNEY GENERAL

It is the responsibility of the constable who served the summons to verify his service by making a return of such process as specified by the statute; the constable should sign the return verifying that such process was served by him. Hemphill, December 18, 1998, A.G. Op. #98-0746.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 20.

62B Am. Jur. 2d, Process §§ 250 et seq.

CJS.

51 C.J.S., Justices of the Peace §§ 136-138.

72 C.J.S., Process §§ 150–152 et seq.

§ 11-9-115. Witnesses to be subpoenaed.

The justice court judge before whom any cause is pending shall direct the clerk of the justice court to issue all subpoenas for witnesses which either of the parties may require, and such subpoenas shall be returnable on a day certain, giving reasonable time for attendance. If any witness, duly subpoenaed, shall fail to appear in pursuance of the subpoena, he shall forfeit the sum of ten dollars ($10,00), for the use of the party in whose behalf he was subpoenaed, for which the justice court judge may enter judgment nisi, which shall be made final in case the witness, on being duly subpoenaed to appear and show cause, shall fail to appear and show cause for such default. The justice court may issue an attachment for such witness, as a circuit court may do in like case.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (13); 1857, ch. 58, art. 16; 1871, § 1313; 1880, § 2202; 1892, § 2406; 1906, § 2735; Hemingway’s 1917, § 2234; 1930, § 2083; 1942, § 1817; Laws, 1981, ch. 471, § 29; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor’s Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Subpoenas for witnesses in civil cases generally, see §13-3-93 et seq.

Subpoenas for witnesses in criminal cases, see §99-9-11 et seq.

Failure to obey subpoena, see Rule 2.10, Uniform Rules of Procedure for Justice Court.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 11-9-115 provides that justice court judge shall direct justice court clerk to issue all subpoenas for witnesses which either party may require. Ferguson, June 9, 1993, A.G. Op. #93-0331.

RESEARCH REFERENCES

CJS.

98 C.J.S., Witnesses §§ 20-22 et seq.

§ 11-9-117. Form of entry on default of witness.

The judgment nisi against a defaulting witness, may be in the following form, viz.:

“ , being subpoenaed to appear this day as a witness for , the , in the case of v. , No. , and having made default, judgment is given against said , the defaulting witness, for ten dollars, in favor of , to be made final unless said , the witness, shall show cause against it according to law.”

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HISTORY: Codes, 1871, § 1313; 1880, § 2248; 1892, § 2407; 1906, § 2736; Hemingway’s 1917, § 2235; 1930, § 2084; 1942, § 1818.

§ 11-9-119. Form of scire facias for witness.

The scire facias to be issued by the justice for a defaulting witness may be as follows, viz.:

“The State of Mississippi. “To any lawful officer of County: “This is to command you to make known to that a judgment in favor of for ten dollars has been given against him by me, a justice of the peace of County, for his default in not appearing before me, at , on the day of A. D. , to testify as a witness for in the case of against , No. as he has been subpoenaed to do; and unless, on the day of , A. D. , before me at , at , o’clock, , he shall show cause to the contrary, the said judgment will be made final; and have there then this writ. “Witness my hand this the day of , A. D. J.P.”

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HISTORY: Codes, 1880, § 2249; 1892, § 2408; 1906, § 2737; Hemingway’s 1917, § 2236; 1930, § 2085; 1942, § 1819.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 11-9-121. Form of an attachment for a witness.

An attachment for a witness may be in the following form, viz.:

“The State of Mississippi. “To any lawful officer of County: “We command you to take the body of , and have him before the undersigned justice of the peace of County, at , on the day of , A. D. at o’clock , to testify for the in the case of against , No. . (But if the said shall furnish bail, with sureties, to be approved by you, in the sum of one hundred dollars, for his appearance at said time and place, you will discharge him.) And have there then this writ. “Witness my hand, the day of , A. D. ”

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The part in brackets should be omitted, if it be not intended that the witness shall be discharged on bail, but shall be brought before the court by the officer. An attachment and scire facias for a defaulting witness may be combined in one writ, and when the witness is before the justice of the peace in pursuance of such process, the judgment nisi shall be made final, if good cause to the contrary be not shown.

HISTORY: Codes, 1880, §§ 2250, 2251; 1892, § 2409; 1906, § 2738; Hemingway’s 1917, § 2237; 1930, § 2086; 1942, § 1820.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Subpoenas for witnesses in civil cases generally, see §13-3-93 et seq.

Attachment for subpoenaed witnesses who fail to appear in civil case, see §13-3-103.

Subpoenas of witnesses in criminal cases, see §99-9-11 et seq.

Attachment of witnesses failing to appear in criminal case, see §99-9-19.

§ 11-9-123. Form of entry of judgment in such case.

The entry of final judgment in such case may be in the following form, viz.:

“ being duly summoned to appear and show cause against the judgment nisi for ten dollars entered against him in favor of , as a defaulting witness in the case of v. No. on the day of A. D. , and having failed to show cause for such default, the said judgment nisi for ten dollars is now made final, as well as judgment for costs in said matter, this the day of A. D. .”

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HISTORY: Codes, 1880, § 2252; 1892, § 2410; 1906, § 2739; Hemingway’s 1917, § 2238; 1930, § 2087; 1942, § 1821.

§ 11-9-125. Setoff filed on return day before trial.

The defendant in any action shall, on or before the return day of the summons, and before the trial of the case, file with the justice court judge to whom the case is assigned the evidence of debt, statement of account, or other written statement of the claim, if any, which he may desire to and which lawfully may be set off against the demand of the plaintiff, and, in default thereof, he shall not be permitted to use it on the trial.

HISTORY: Codes, 1871, § 1306; 1880, § 2204; 1892, § 2411; 1906, § 2740; Hemingway’s 1917, § 2239; 1930, § 2088; 1942, § 1822; Laws, 1981, ch. 471, § 30; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor’s Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

JUDICIAL DECISIONS

1. In general.

2. Availability of set-off.

3. —Mutuality.

4. —Jurisdictional amount.

5. —Assignments.

6. Time for filing.

7. Matters which may be set off.

8. Recoupment.

9. Pleading.

10. Evidence.

1. In general.

Where defendant filed no plea of setoff in action against him for rent in justice court, objection to his testimony as to work performed for plaintiff was properly sustained. Wright v. Thornton, 196 Miss. 395, 17 So. 2d 437, 1944 Miss. LEXIS 205 (Miss. 1944).

Where on appeal to the circuit court, defendant interposed plea of setoff and introduced evidence in support thereof without objection of plaintiff until motion for new trial was filed, plaintiff was presumed to have consented, or at least to have waived its objection, to the filing of the plea out of time. Wright v. Thornton, 196 Miss. 395, 17 So. 2d 437, 1944 Miss. LEXIS 205 (Miss. 1944).

The court is liberal in its allowance of counterclaims in cases of insolvency in order that only the true balance may be paid. Citizens' Bank of Greenville v. Kretschmar, 91 Miss. 608, 44 So. 930, 1907 Miss. LEXIS 163 (Miss. 1907).

2. Availability of set-off.

A claim acquired after institution of replevin suit cannot be availed of in the suit. McIntyre v. E.E. Forbes Piano Co., 100 Miss. 517, 56 So. 457, 1911 Miss. LEXIS 45 (Miss. 1911).

Setoff is not available in a suit for unliquidated damages. Burrus v. Gordon, 57 Miss. 93, 1879 Miss. LEXIS 20 (Miss. 1879), overruled, Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 1896 Miss. LEXIS 182 (Miss. 1896).

The statute does not authorize a setoff against the state. Raymond v. State, 54 Miss. 562, 1877 Miss. LEXIS 51 (Miss. 1877).

3. —Mutuality.

Debts cannot be shown to be mutual by evidence that one or more of the debtors are mere sureties. Peine v. Lewis, 64 Miss. 96, 8 So. 207, 1886 Miss. LEXIS 21 (Miss. 1886).

A setoff is in the nature of a cross action, and in a joint action by several plaintiffs their separate debts to the defendant cannot be set off against their joint demand. Walter Denny & Co. v. Wm. D. Wheelwright & Co., 60 Miss. 733, 1883 Miss. LEXIS 5 (Miss. 1883).

A demand against one person cannot be set off against him and his nominal partner in a suit by them on a note made to the firm. A setoff must be against all the plaintiffs. Jones v. Howard, 53 Miss. 707, 1876 Miss. LEXIS 139 (Miss. 1876).

If the action be by more than one plaintiff, and it is proposed to set off a debt of one plaintiff to the defendant; or if the action be against more than one defendant, and the proposed setoff be in favor of but one of them, there will be a want of mutuality; but if the setoff be in favor of all of the defendants and against all the plaintiffs and another person, and the debt be the several debt of each, it will be good. That another party also owes the debt does not destroy its several character or destroy mutuality. Moody v. Willis, 41 Miss. 347, 1867 Miss. LEXIS 5 (Miss. 1867); Peyton v. Planters' Compress Co., 63 Miss. 410, 1886 Miss. LEXIS 113 (Miss. 1886).

4. —Jurisdictional amount.

The defendant may prove a setoff greater in amount than the jurisdiction of the justice, if the balance, after deducting the amount of the plaintiff’s demand, does not exceed his jurisdiction. Glass v. Moss, 2 Miss. 519, 1837 Miss. LEXIS 9 (Miss. 1837).

5. —Assignments.

Defendant, after assignee of account was substituted as plaintiff, was not entitled to recover over against him on counterclaim. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

Assignee of account could not, after defendant in action thereon filed setoff, be substituted as plaintiff over objection. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

An instance in an anti-commercial statute where a railroad company which purchased lumber from a party indebted to it for freight advances may set off its claim after seller’s bankruptcy against the bank as assignee of the invoices. Illinois C. R. Co. v. First Nat'l Bank, 110 Miss. 676, 70 So. 831, 1915 Miss. LEXIS 102 (Miss. 1915).

An open account transferred by delivery may be so used. Ashby v. Carr, 40 Miss. 64, 1866 Miss. LEXIS 50 (Miss. 1866).

A setoff cannot be interposed by the maker of a note which has been assigned unless the setoff existed at the time of the notice of the assignment. Northern Bank of Mississippi v. Kyle, 8 Miss. 360, 1843 Miss. LEXIS 100 (Miss. 1843).

It is not necessary that an assignment should appear on a transferred note to enable the holder to use it as a setoff. Glass v. Moss, 2 Miss. 519, 1837 Miss. LEXIS 9 (Miss. 1837).

6. Time for filing.

In suit on itemized account, defendant’s denial of correctness of specific charge and credit items held counter-affidavit, not setoff; hence could be first filed in circuit court on appeal from justice’s court. McClain v. Henson, 169 Miss. 857, 153 So. 791, 1934 Miss. LEXIS 70 (Miss. 1934).

A defense and cross action of setoff in a suit before a justice of the peace must be filed on or before return day of summons and before trial. Richardson Corp. v. Standard Drug Co., 141 Miss. 92, 106 So. 95, 1925 Miss. LEXIS 211 (Miss. 1925).

7. Matters which may be set off.

An instance in which one bank may have its claim set off against another, see Citizens' Bank of Greenville v. Kretschmar, 91 Miss. 608, 44 So. 930, 1907 Miss. LEXIS 163 (Miss. 1907).

In an action for the price of a carload of meal, defendant may assert as a setoff a claim he has against plaintiff because of inferior quality in corn and oats formerly purchased from plaintiff and paid for. Wilkinson v. Searls, 70 Miss. 392, 13 So. 470, 1892 Miss. LEXIS 141 (Miss. 1892); Miller v. American Nat'l Bank, 76 Miss. 84, 23 So. 439, 1898 Miss. LEXIS 58 (Miss. 1898).

A bank may apply the amount to the credit of a depositor to a debt due to it by him jointly with another. Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615, 1889 Miss. LEXIS 6 (Miss. 1889).

In an action by a clerk against a storekeeper for the value of his services, the employer cannot set off a demand for money lost from the cash-drawer owing to the clerk’s negligence. Cobb v. Wilson, Lees & Co., 60 Miss. 343, 1882 Miss. LEXIS 59 (Miss. 1882).

In an action of assumpsit, the defendant, having a claim as beneficiary under a deed of trust for the value of property converted and sold by the plaintiff, may set off the same against the plaintiff’s demand. Hunt & Vaughan v. Shackleford, 55 Miss. 94, 1877 Miss. LEXIS 110 (Miss. 1877).

An unliquidated claim for damages cannot be used as a setoff. Casper v. Thigpen, 48 Miss. 635, 1873 Miss. LEXIS 85 (Miss. 1873).

8. Recoupment.

This section [Code 1942, § 1822] does not apply to the interposition of a claim in recoupment. Criss v. Bailey, 243 Miss. 130, 137 So. 2d 160, 1962 Miss. LEXIS 324 (Miss. 1962).

Recoupment is purely defensive and no judgment for an amount over can be recovered in favor of defendant. Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214, 1914 Miss. LEXIS 147 (Miss. 1914).

If plaintiff’s claim for damages is denied the plea of recoupment therein cannot be allowed. Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214, 1914 Miss. LEXIS 147 (Miss. 1914).

This section [Code 1942, § 1822] has no application to a claim interposed in recoupment. Recoupment may be interposed for the first time on appeal to the circuit court. Amory Independent Tel. Co. v. Cox, 103 Miss. 541, 60 So. 641, 1912 Miss. LEXIS 196 (Miss. 1912).

Distinguishing “recoupment” from “setoff.” Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356, 1911 Miss. LEXIS 228 (Miss. 1911).

A suit brought for the purchase-money of machinery and a plea of setoff for unliquidated damages is filed and on such plea only matters in recoupment are considered, thus treating the plea as one in recoupment is not reversible error. W. T. Adams Mach. Co. v. Thomas, 87 Miss. 391, 39 So. 810, 1905 Miss. LEXIS 103 (Miss. 1905).

In a suit by a grantor for the purchase-money of land conveyed by general warranty, the grantee may recoup damages sustained by reason of expenses incurred by him in getting possession of the land, but is not entitled to credit for the costs of store fixtures purchased by him from the occupant to induce a surrender of the premises. Weatherbee Bros. v. Lillybeck, 86 Miss. 156, 38 So. 284, 1905 Miss. LEXIS 20 (Miss. 1905).

Recoupment is contradistinguished from setoff in three essential particulars: (1) It being confined to matters arising out of and connected with the transaction or contract upon which the suit is brought; (2) in having no regard to whether or not such matter be liquidated or unliquidated; (3) that the judgment is not regulated by statute. Myers v. Estell, 47 Miss. 4, 1872 Miss. LEXIS 47 (Miss. 1872).

9. Pleading.

Written pleadings in a justice of peace court are not mandatory except where setoff is involved in the defense. National Hardwood Lumber Ass'n v. Gilmore-Puckett Lumber Co., 210 Miss. 354, 49 So. 2d 689, 1951 Miss. LEXIS 270 (Miss. 1951).

In a suit by a county a plea of setoff is bad which does not show that the claim sought to be set off has been presented to the board of supervisors and rejected. Board of Supervisors v. Brookhaven, 51 Miss. 68, 1875 Miss. LEXIS 13 (Miss. 1875); State use of Noxubee County v. Banks, 66 Miss. 431, 6 So. 184, 1889 Miss. LEXIS 122 (Miss. 1889).

Under a plea of payment a bill of particulars is necessary to enable defendant to avail himself of a setoff. Vanzant v. Shelton, 40 Miss. 332, 1866 Miss. LEXIS 74 (Miss. 1866).

10. Evidence.

Testimony of defendant in action in justice court against him for rent of apartment, that plaintiff was indebted to him for work performed was properly rejected in the absence of compliance with the requirements of this section [Code 1942, § 1822]. Wright v. Thornton, 196 Miss. 395, 17 So. 2d 437, 1944 Miss. LEXIS 205 (Miss. 1944).

If defendant pleads as a setoff and testifies to a contract and services thereunder, plaintiff may state in evidence his version of the contract, even though he makes out a contract under the statute of frauds. Timberlake v. Thayer, 76 Miss. 76, 23 So. 767, 1898 Miss. LEXIS 68 (Miss. 1898).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Counterclaim, Recoupment, and Setoff §§ 97, 102.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Forms 31-33 (Filing of evidence for set off judgments).

CJS.

80 C.J.S., Setoff and Counterclaim §§ 100, 101.

§ 11-9-127. Trial and judgment; execution.

On the return day of the summons, unless continued, the justice court judge shall hear and determine the cause if both parties appear; give judgment by default if the defendant fails to appear and contest plaintiff’s demand, or judgment of nonsuit against the plaintiff if he fails to appear and prosecute his claim; enter judgment in favor of the defendant where, in case of setoff, it shall appear that there is a balance due him, for the amount of such balance, and, when requested, issue execution against the goods and chattels, lands and tenements, of the party against whom judgment is rendered, for the amount of the judgment and costs, or costs alone, as the case may require, returnable to a day more than twenty (20) days after the rendition of the judgment, and not more than six (6) months after the issuance of the execution; and the execution may be directed to the proper officer of any county in this state.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (9); 1857, ch. 58, art. 7; 1871, § 1307; 1880, § 2205; 1892, § 2412; 1906, § 2741; Hemingway’s 1917, § 2240; 1930, § 2089; 1942, § 1823; Laws, 1991, ch. 453, § 1, eff from and after July 1, 1991.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Taxation of costs in cases from justices of the peace, see §11-53-71.

Arrangement of dates of court by justices and county prosecuting attorneys, see §19-23-17.

JUDICIAL DECISIONS

1. In general.

2. Judgments.

3. Executions.

1. In general.

Debtors did not deny that they were all properly served with process and all failed to appear and defend the collection action, and pursuant to statutory law, the justice court was not in error in entering a default judgment, which included reasonable attorney fees, on the collection agency’s collection actions against the debtors for unpaid medical bills. Franklin Collection Serv. v. Stewart, 863 So. 2d 925, 2003 Miss. LEXIS 870 (Miss. 2003).

Defendant, after assignee of account was substituted as plaintiff, was not entitled to recover over against him on counterclaim. Graham v. Stewart, 152 Miss. 307, 120 So. 171, 1929 Miss. LEXIS 204 (Miss. 1929).

A justice of the peace has no right to grant a new trial. An appeal from judgment by default must be perfected within ten days. Welch v. Hannie, 112 Miss. 79, 72 So. 861, 1916 Miss. LEXIS 69 (Miss. 1916).

Exclusion in the circuit court, on trial of claimant’s issue, of the testimony of a justice of the peace, by whom judgment was rendered and execution issued on certain property, as to statements made by the defendant in execution and by the claimant was erroneous. Dalee Bros. v. Wigginton, 111 Miss. 749, 72 So. 149, 1916 Miss. LEXIS 383 (Miss. 1916).

2. Judgments.

A judgment rendered in the absence of defendant and of his counsel should be set aside where such absence was caused by their reliance on a statement made officially by the judge of the court that the case could not be reached, or would not be tried, before a certain date. Gardner v. Price, 199 Miss. 809, 25 So. 2d 459, 1946 Miss. LEXIS 249 (Miss. 1946).

Default judgment entered by justice of the peace on March 11, 1939, in violation of justice’s assurance to defendants’ counsel that the case would not be set for trial until March 25, 1939, which was after the adjournment of circuit court term, in accordance with custom existing among attorneys and magistrates in the county to continue cases coming up during circuit court’s term until after adjournment thereof, was void. Gardner v. Price, 199 Miss. 809, 25 So. 2d 459, 1946 Miss. LEXIS 249 (Miss. 1946).

Judgment in justice court, reciting that defendant entered general appearance but declined to introduce evidence, sufficiently showed that issue was joined. Mississippi C. R. Co. v. May, 149 Miss. 334, 115 So. 561, 1928 Miss. LEXIS 45 (Miss. 1928).

A justice of the peace judgment on merits against plaintiff, though it should have been a judgment or nonsuit for failure to prosecute, held only erroneous, and not void and is available as res judicata. Childress v. Thomas Dry Goods Co., 145 Miss. 429, 110 So. 861, 1927 Miss. LEXIS 129 (Miss. 1927).

As to validity of judgment by default, see Welch v. Hannie, 112 Miss. 79, 72 So. 861, 1916 Miss. LEXIS 69 (Miss. 1916).

A judgment of a justice of the peace for plaintiff trying a case without a jury is a finding of plaintiff’s right to recover and of his damages. Pharr Bros. & Jennings v. Yazoo & M. V. R. Co., 111 Miss. 830, 72 So. 240, 1916 Miss. LEXIS 405 (Miss. 1916).

Where a justice of the peace entered judgment for a sum greater than the amount of the judgment rendered and the defeated party took no steps against said error by appeal or proper motion at law he is not entitled to restrain collection thereof by an injunction. Gum Carbo Co. v. New Orleans German Gazette, 90 Miss. 177, 43 So. 82, 1907 Miss. LEXIS 42 (Miss. 1907).

For an example of a judgment of a justice of the peace questioned and held sufficient, see Swain v. Gilder, 61 Miss. 667, 1884 Miss. LEXIS 150 (Miss. 1884).

3. Executions.

Since execution is required to be returned to the justice of the peace rendering judgment, a justice of the peace cannot be a purchaser at the execution sale under his own judgment. 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 the circuit court on a duly enrolled judgment of a justice of his county, returnable before such justice, is void as also the seizure of defendant’s property thereunder. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

OPINIONS OF THE ATTORNEY GENERAL

It is not necessary under Miss. Code Section 11-9-127 for justice court judgment to be enrolled on circuit clerk’s judgment roll in order to effectuate garnishment or execution. Riggs, Feb. 18, 1993, A.G. Op. #93-0081.

Miss. Code Section 11-9-127 sets out duties of justice court judge as to court dates. Ferguson, June 9, 1993, A.G. Op. #93-0331.

Under Sections 11-9-127 and 13-3-133, to enforce the final judgment of the court is it 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.

47 Am. Jur. 2d, Justices of the Peace §§ 34 et seq.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Forms 43-50 (Writ of execution).

CJS.

51 C.J.S., Justices of the Peace §§ 195 et seq.

§ 11-9-129. Judgment operates as a lien if enrolled.

Judgments rendered by justices of the peace shall operate as a lien upon the property, real or personal, of the defendant or defendants therein, found or situated in the county where rendered, or in any other county where the same may be, which is not exempt by law from execution, if an abstract of the judgment be filed with the clerk of the circuit court of the county wherein the property is situated, and entered upon the judgment roll, as in other cases of enrolled judgments. The lien shall commence from the date of enrollment, and the judgment may be enrolled and have the force and effect of a lien in all cases where an appeal is taken, as well as in other cases. And in the event of a reversal of the judgment of the justice’s court, the clerk of the circuit court shall enter a memorandum to that effect on the judgment roll.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 10 (13); 1857, ch. 58, art. 20; 1871, § 1318; 1880, § 2206; 1892, § 2413; 1906, § 2742; Hemingway’s 1917, § 2241; 1930, § 2090; 1942, § 1824.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Where sales under execution of justice’s court may be made, see §13-3-161.

JUDICIAL DECISIONS

1. In general.

Judgment rendered by a justice of the peace may be enrolled in the office of the clerk of the circuit court before the expiration of the five days allowed for the appeal. Minshew v. Geo. W. Davidson & Co., 86 Miss. 354, 38 So. 315, 1905 Miss. LEXIS 29 (Miss. 1905).

Judgments rendered by justices of the peace may be enrolled in any county in the state on filing an abstract of the judgment with the clerk of the circuit court. Wise v. Keer Thread Co., 84 Miss. 200, 36 So. 244, 1904 Miss. LEXIS 25 (Miss. 1904).

A judgment of a justice of the peace may be enrolled in any county upon compliance with this section [Code 1942, § 1824]. Wise v. Keer Thread Co., 84 Miss. 200, 36 So. 244, 1904 Miss. LEXIS 25 (Miss. 1904).

The plaintiff may have his judgment enrolled in the manner specified in any other county where property of the debtor may be situated, and have execution issued by the clerk of the circuit court of such county to an officer of that county, returnable into the justice’s court by which the judgment is rendered. Smith v. Mixon, 73 Miss. 581, 19 So. 295, 1895 Miss. LEXIS 161 (Miss. 1895).

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 11-9-129 provides that judgment becomes lien against judgment debtor’s property in county, if and when enrolled in circuit clerk’s office. Riggs, Feb. 18, 1993, A.G. Op. #93-0081.

RESEARCH REFERENCES

ALR.

Necessity of notice of application or intention to correct error in judgment entry. 14 A.L.R.2d 224.

Am. Jur.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Form 41 (Affidavit of amount due-for judgment to act as lien on defendant’s real estate).

CJS.

51 C.J.S., Justices of the Peace § 259.

§ 11-9-131. Execution not to be issued within ten days.

An execution shall not issue on any judgment of a justice of the peace until ten days after its rendition, unless the party recovering therein shall make and file an affidavit that he believes he will be in danger of losing his debt or demand by such delay, in which case execution shall issue immediately; but the opposite party shall not be deprived of his right of appeal within the time prescribed.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (17); 1857, ch. 58, art. 21; 1871, § 1317; 1880, § 2207; 1892, § 2414; 1906, § 2743; Hemingway’s 1917, § 2242; 1930, § 2091; 1942, § 1825.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Executions in general, see §13-3-113 et seq.

What is necessary to complete title to land sold under execution issued by justice of the peace, see §13-3-189.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 1.

CJS.

51 C.J.S., Justices of the Peace § 271.

§ 11-9-133. Form of an execution.

An execution may be in the following form, viz.:

“The State of Mississippi. “To any lawful officer of county: “We command you that of the real and personal estate of you cause to be made dollars, adjudged by the undersigned, justice of the peace of the county of in said state, on the day of A. D. , to , also interest at per centum on said sum until you shall make said money, and costs to amount of dollars, as taxed, and costs to accrue under this execution, to be taxed by you; and have said money before me on the day of , A. D. , and have there then this writ. “Witness my hand the day of A. D. J. P.” Detailed statement of costs, giving each item separately and specifying the law for it, the section and paragraph thereof, viz.; “Issuing summons, $ , serving summons $ ,” etc.

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HISTORY: Codes, 1880, § 2253; 1892, § 2415; 1906, § 2744; Hemingway’s 1917, § 2243; 1930, § 2092; 1942, § 1826.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 1.

CJS.

51 C.J.S., Justices of the Peace § 272.

§ 11-9-135. Proceedings in replevin, attachment, liens.

Proceedings in replevin, attachment, trial of a claim to property levied on, and for the enforcement of statutory liens before justices of the peace, shall be, as far as practicable, according to those in the circuit courts, in all like cases.

HISTORY: Codes, 1871, § 1321; 1880, § 2212; 1892, § 2416; 1906, § 2745; Hemingway’s 1917, § 2244; 1930, § 2093; 1942, § 1827.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Claim by person not a party to the action of property levied upon, see §11-23-7 et seq.

Remedy of attachment generally, see §11-33-1 et seq.

Proceedings before justices of the peace in cases of attachment, see §11-33-105, 11-33-107.

Enforcement of liens generally, see §85-7-31 et seq.

JUDICIAL DECISIONS

1. In general.

On a writ of certiorari from a justice court the proper judgment should be either one of affirmance or reversal, and if the latter a proper judgment should be entered. Williams v. Williams, 117 Miss. 251, 78 So. 152, 1918 Miss. LEXIS 172 (Miss. 1918).

In a replevin suit the plaintiff cannot be allowed to recover judgment for a greater value than that alleged in the affidavit. Brown v. Williams-Brooke Co., 106 Miss. 187, 63 So. 351, 1913 Miss. LEXIS 121 (Miss. 1913).

The affidavit in replevin determines the jurisdiction of the court so far as it concerns the value of the property sued for, unless the plaintiff knowingly undervalued or overvalued it for jurisdictional purposes. Ball, Brown & Co. v. Sledge, 82 Miss. 749, 35 So. 447, 1903 Miss. LEXIS 203 (Miss. 1903).

§ 11-9-137. Judgment on merits res adjudicata.

When any suit brought before a justice of the peace shall be finally decided on its merits by the justice, it shall be a bar to a recovery for the same cause of action or setoff in any other suit.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (15); 1857, ch. 58, art. 19; 1871, § 1316; 1880, § 2213; 1892, § 2417; 1906, § 2746; Hemingway’s 1917, § 2245; 1930, § 2094; 1942, § 1828.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

JUDICIAL DECISIONS

1. In general.

Justice’s judgment on merits against plaintiff, though it should have been of nonsuit for failure to prosecute, held only erroneous, and available as res judicata. Childress v. Thomas Dry Goods Co., 145 Miss. 429, 110 So. 861, 1927 Miss. LEXIS 129 (Miss. 1927).

The testimony of the justice of the peace is incompetent to vary the effect of his decision as to the matter of res judicata. Munn v. S. F. Bowser & Co., 114 Miss. 500, 75 So. 372, 1917 Miss. LEXIS 55 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Res judicata as affected by fact that former judgment was entered by agreement or consent. 2 A.L.R.2d 514.

CJS.

51 C.J.S., Justices of the Peace §§ 254-258.

§ 11-9-139. Execution of judgment may be stayed.

If the party against whom judgment is given, shall, within ten days thereafter, procure some responsible person to appear before the justice, and in writing, to be entered on the docket of the justice and signed by such person, consent to become surety therefor, the justice shall grant a stay of execution for thirty days from the date of the judgment on all sums not exceeding fifty dollars and for sixty days on all sums over fifty dollars. In case the money be not paid at the expiration of such stay, execution shall issue against the principal and sureties, or either of them, for the principal, interest, and costs.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (16); 1857, ch. 58, art. 22; 1871, § 1343; 1880, § 2214; 1892, § 2418; 1906, § 2747; Hemingway’s 1917, § 2246; 1930, § 2095; 1942, § 1829.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 26.

15 Am. Jur. Pl & Pr Forms (Rev), Justices of the Peace, Form 42 (Affidavit of amount due for stay of execution).

CJS.

51 C.J.S., Justices of the Peace § 277.

§ 11-9-141. Effect of stay.

A party obtaining a stay of execution shall thereby waive all errors in the judgment and abandon the right of appeal and certiorari.

HISTORY: Codes, 1871, § 1344; 1880, § 2215; 1892, § 2419; 1906, § 2748; Hemingway’s 1917, § 2247; 1930, § 2096; 1942, § 1830.

RESEARCH REFERENCES

CJS.

51 C.J.S., Justices of the Peace § 277.

§ 11-9-143. Trial by jury.

On or before the return day of the process either party may demand a trial by jury, and thereupon the justice of the peace shall order the proper officer to summon six persons, competent to serve as jurors in the circuit court, to appear immediately, or at such early day as he may appoint, whether at a regular term or not, who shall be sworn to try the case; but each party shall be entitled to challenge peremptorily two jurors, and as many more as he can show sufficient cause for. If a sufficient number of jurors shall not appear, others may be summoned until a jury is made up, to consist of six, against whom legal objections shall not exist. If the jury fail to agree, it may be discharged and another jury summoned, and so on until a verdict is obtained, and judgment shall be entered by the justice on the verdict.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 10 (5); 1857, ch. 58, art. 26; 1871, § 1326; 1880, § 2222; 1892, § 2425; 1906, § 2754; Hemingway’s 1917, §§ 2253; 1930, § 2102; 1942, § 1836.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Selection of petit jury, generally, see §13-5-65 et seq.

JUDICIAL DECISIONS

1. In general.

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).

OPINIONS OF THE ATTORNEY GENERAL

A justice of peace does not have authority to designate individuals to perform jury duty in the justice of peace court. Ops. Atty. Gen. (Opinion dated October 30, 1969, added to 1972 Code section 11-9-143).

Either party in a civil case in justice court is entitled to a jury trial. Shirley, Apr. 30, 2004, A.G. Op. 04-0181.

The cost of a jury trial for a civil case in justice court is not one that is contemplated to be paid in advance under §9-11-10. As a general rule, the losing party in a civil case bears the burden of all court costs, however, the judge has some discretion is assessing the costs. Shirley, Apr. 30, 2004, A.G. Op. 04-0181.

The “return day of the process” as set forth in this section means the day the case is set for trial. Further, a justice court may refuse a request for a jury trial if a party fails to request a jury trial “on or before the return day of the process”. Shirley, Apr. 30, 2004, A.G. Op. 04-0181.

A criminal warrant does not have a return date. However, if a defendant’s bond is made returnable to a plea date, such a date would constitute the return day of process. If a defendant pleads not guilty on the plea date, the court should inquire if the defendant demands a jury trial. If the bond is returnable to a trial date, the trial date is considered the return day of process and the defendant could demand a jury trial at any time until the trial begins. Hood, Sept. 17, 2004, A.G. Op. 04-0455.

RESEARCH REFERENCES

ALR.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding. 70 A.L.R.4th 1119.

Prospective juror’s connection with insurance company as ground for challenge for cause. 9 A.L.R.5th 102.

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.

Am. Jur.

47 Am. Jur. 2d, Jury §§ 120 et seq.

15 Am. Jur. Pl & Pr Forms (Rev), Jury, Form 1.1 (Demand for jury trial – Indorsed on pleadings).

CJS.

50A C.J.S., Juries §§ 188-191.

§ 11-9-145. Multiple cases tried by same jury.

If a justice have more jury cases than one on the same day, he shall use the same jury for the trial of each, subject to the right of challenge by either party and like proceedings in all respects as in other cases. If more cases than one be tried by the same jury, the justice shall apportion the cost of the jury among the several cases and tax it in accordance with justice.

HISTORY: Codes, 1871, § 1328; 1880, § 2224; 1892, § 2426; 1906, § 2755; Hemingway’s 1917, § 2254; 1930, § 2103; 1942, § 1837.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 11-9-147. Trial by jury; fining of delinquent jurors.

The justice of the peace may fine any person summoned as a juror failing to attend in any sum not exceeding ten dollars; and if such person, when summoned to show cause why the fine should not be made final, shall not appear and show cause, execution shall issue for the fine and costs.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 10 (7); 1857, ch. 58, art. 27; 1871, § 1329; 1880, § 2225; 1892, § 2427; 1906, § 2756; Hemingway’s 1917, § 2255; 1930, § 2104; 1942, § 1838.

Editor’s Notes —

Pursuant to Miss. Const. Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Penalty for juror’s failure to perform his duties, see §13-5-83.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Jury § 136.

CJS.

50A C.J.S., Juries §§ 210-214, 237.

Chapter 11. Venue of Actions

In General

§ 11-11-1. Provisions of this chapter applicable to all courts.

All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

HISTORY: Codes, Hutchinson’s 1848, ch. 53, art. 2 (100); 1857, ch. 61, art. 189; 1871, § 630; 1880, § 1585; 1892, § 629; 1906, § 687; Hemingway’s 1917, § 465; 1930, § 474; 1942, § 1412.

Cross References —

Transfer of cases from the circuit court to the county court, see §9-9-27.

Other sections derived from same 1942 code section, see §§11-1-57,11-7-1,91-1-15.

Venue of actions, suits, and proceedings in the county court, see §11-9-3.

Application of law of evidence, see §13-1-1.

Application of law of process generally, see §13-3-1.

Jurisdiction and venue of criminal offenses generally, see §99-11-1 et seq.

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

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

2. Venue.

3. Dismissal.

4. Evidence.

1. In general.

In view of Code 1930, § 474, and Code 1930, §§ 575, 1397, case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

By this section [Code 1942, § 1412], the provisions of the chapter are made applicable to all courts, and this embraces the county court; and, accordingly, conviction on a plea of guilty entered on an amendable affidavit is good and cannot be set aside on certiorari because of a defective affidavit. Bogle v. State, 155 Miss. 612, 125 So. 99, 1929 Miss. LEXIS 347 (Miss. 1929).

2. Venue.

Venue is right as valuable to defendant as to plaintiff. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

In view of this section [Code 1942, § 1412], a fraternal benefit association may be sued in the chancery court of the county in which the beneficiary resides. Masonic Ben. Ass'n v. Dotson, 111 Miss. 60, 71 So. 266, 1916 Miss. LEXIS 240 (Miss. 1916).

3. Dismissal.

Where a suit was brought in chancery court for cancelation of a conveyance on the ground that it has never been delivered, the chancellor should have granted the complaint’s motion for voluntary dismissal without prejudice where there was no submission to the chancellor for final decision on merits. Graham v. Graham, 214 Miss. 99, 58 So. 2d 85, 1952 Miss. LEXIS 449 (Miss. 1952).

A complainant in the chancery court has the right under the statute to dismiss his suit without prejudice. This rule applies in all cases where the defendant will not be prejudiced by a dismissal. Adams v. Lucedale Commercial Co., 113 Miss. 608, 74 So. 435, 1917 Miss. LEXIS 137 (Miss. 1917); Adams v. Dean, 74 So. 436 (Miss. 1917); Adams v. Leatherbury, 74 So. 436 (Miss. 1917); Adams v. McInnis, 74 So. 436 (Miss. 1917).

4. Evidence.

Under the provisions of this section [Code 1942, § 1412], Code 1942, § 1469 is applicable to suits in the chancery court. General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So. 2d 845, 1965 Miss. LEXIS 927 (Miss. 1965).

In action of unlawful entry and detainer, introduction in evidence of deed to plaintiff held not objectionable on ground that no copy of deed was filed as exhibit to declaration, since statute (§ 3458, Code 1930) made no such requirement. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Statutes requiring copy of writing to be annexed to declaration or bill before evidence of writing may be introduced applies to chancery court as well as to circuit court. Thomas v. B. Rosenberg & Sons, Inc., 153 Miss. 314, 120 So. 732, 1929 Miss. LEXIS 18 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Validity of contractual provision limiting place or court in which action may be brought. 31 A.L.R.4th 404.

Venue under 29 USCS § 1132(e)(2) of suits brought under Employee Retirement Income Security Act of 1974 (29 USCS §§ 1001 et seq). 56 A.L.R. Fed. 757.

Am. Jur.

20 Am. Jur. 2d, Courts §§ 29, 30 et seq.

§ 11-11-3. County in which to commence civil actions; dismissal of actions more properly heard in another forum; transfer of action to proper county; factors determining grant of motion to dismiss or transfer.

    1. (i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
      1. Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
    2. If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.
  1. In any civil action where more than one (1) plaintiff is joined, each plaintiff shall independently establish proper venue; it is not sufficient that venue is proper for any other plaintiff joined in the civil action.
  2. Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.
    1. If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
      1. Relative ease of access to sources of proof;
      2. Availability and cost of compulsory process for attendance of unwilling witnesses;
      3. Possibility of viewing of the premises, if viewing would be appropriate to the action;
      4. Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his remedy;
      5. Administrative difficulties for the forum courts;
      6. Existence of local interests in deciding the case at home; and
      7. The traditional deference given to a plaintiff’s choice of forum.
    2. A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

HISTORY: Codes, Hutchinson’s 1848, ch. 58, art. 1 (19); 1857, ch. 61, art. 32; 1871, § 522; 1880, § 1498; 1892, § 650; 1906, § 707; Hemingway’s 1917, § 486; 1930, § 495; 1942, § 1433; Laws, 1908, ch. 166; Laws, 1940, ch. 248; Laws, 1984, ch. 429; Laws, 2002, 3rd Ex Sess, ch. 2, § 1; Laws, 2002, 3rd Ex Sess, ch. 4, § 1; Laws, 2004, 1st Ex Sess, ch. 1, § 1, eff from and after Sept. 1, 2004, and applicable to all causes of action filed on or after Sept. 1, 2004.

Amendment Notes —

The first 2002 amendment, 3rd Ex Sess, designated the first paragraph as (1), inserted (2), and redesignated the last paragraph as (3).

The second 2002 amendment, 3rd Ex Sess, rewrote (1); deleted (2) and redesignated former paragraph (3) as present paragraph (2).

The 2004 amendment, 1st Ex Sess, rewrote the section.

Cross References —

The venue of actions, suits, and proceedings in the county court, see §11-9-3.

Change of venue in cases involving trial of right of property, see §11-23-23.

The venue of criminal prosecutions generally, see §§99-11-3 to99-11-23.

Change of venue in criminal prosecutions, see §99-15-35.

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

2. Construction and application generally.

3. Jurisdiction.

4. Venue where defendant resides or is found.

5. Venue where acts or substantial event occurred.

6. Venue as to corporations.

7. —Where cause of action occurs or accrues.

8. —Foreign corporations.

9. Municipal corporations.

10. Actions relating to land; ejectment, etc.

11. —Land located in two or more counties.

12. Change of venue in general.

13. —Public officers.

14. —Proceedings in rem.

15. —Consent, effect of.

16. —Waiver.

17. —Burden of proof.

18. Illustrative cases.

1. In general.

Trial court did not err in dismissing a football player’s complaint without prejudice because venue was improper in Madison County, Mississippi; no credible evidence existed, either alleged in the complaint or in supporting affidavits, to suggest that the football player was a resident or domiciliary of Mississippi at the time the complaint was filed. Ramsey v. Auburn Univ., 191 So.3d 102, 2016 Miss. LEXIS 82 (Miss. 2016).

Circuit court abused its discretion in dismissing a personal injury complaint when the injured driver lacked an alternate forum in which to file her suit due to the expiration of the statute of limitations, and though the language of the stipulation complied with Miss. Code Ann. §11-11-3(4)(b), the effect of the dismissal did not. Williams v. Liberty Mut. Fire Ins. Co., 187 So.3d 166, 2015 Miss. App. LEXIS 379 (Miss. Ct. App. 2015).

Supreme Court may properly consider issues pertaining to venue via interlocutory appeal. Forrest County Gen. Hosp. v. Conway, 700 So. 2d 324, 1997 Miss. LEXIS 457 (Miss. 1997).

Venue is valuable right possessed by both plaintiff and defendant. Forrest County Gen. Hosp. v. Conway, 700 So. 2d 324, 1997 Miss. LEXIS 457 (Miss. 1997).

Venue is right as valuable to defendant as to plaintiff. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

Mississippi has rejected common law local action doctrine, and §11-11-3 alone determines whether court can exercise jurisdiction over “local” cause of action. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Section [Code 1942, § 1433] fixing venue of suits in state courts either in the district where the cause of action accrues or where the defendant has its principal place of business is inapplicable to prevent a resident of the Federal Northern District of Mississippi from suing a foreign corporation having its principal place of business in the Southern District in the Federal court of the Northern District rather than the Southern District, even though in obedience to laws of Mississippi the corporation had designated an agent for service of process who resided in the Southern District and the cause of action accrued in that district, where a Federal statute fixing venue permitted suit in either the Northern or the Southern District. Murphree v. Mississippi Pub. Corp., 149 F.2d 138, 1945 U.S. App. LEXIS 2565 (5th Cir. Miss. 1945), aff'd, 326 U.S. 438, 66 S. Ct. 242, 90 L. Ed. 185, 1946 U.S. LEXIS 3100 (U.S. 1946).

The statute, with respect to change of venue in suits against public officers, is not discriminatory. Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 1930 Miss. LEXIS 238 (Miss. 1930), overruled, Vascoe v. Ford, 212 Miss. 370, 54 So. 2d 541, 1951 Miss. LEXIS 458 (Miss. 1951).

Statute relating to venue of civil actions held not to discriminate against foreign corporations. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

2. Construction and application generally.

There is no manifest contrary intention to keep the language singular in Miss. Code Ann. §11-11-3(3), and under case-specific facts, §11-11-3(3) may take the plural form. Miss. Baptist Health Sys. v. Harkins, 245 So.3d 370, 2018 Miss. LEXIS 69 (Miss. 2018).

Supreme Court of Mississippi holds there is no manifest contrary intention to keep the language singular in Miss. Code Ann. §11-11-3(3), and under case-specific facts, §11-11-3(3) may take the plural form. Miss. Baptist Health Sys. v. Harkins, 245 So.3d 370, 2018 Miss. LEXIS 69 (Miss. 2018).

Miss. Code Ann. §11-11-3(3) plainly and unambiguously provides that where both defendants are private medical defendants and where an act or omission occurred in both counties forming an indivisible injury, both counties satisfy the single category defined within §11-11-3(3). Miss. Baptist Health Sys. v. Harkins, 245 So.3d 370, 2018 Miss. LEXIS 69 (Miss. 2018).

Where two medical defendants fall within the same category, the Supreme Court of Mississippi holds that Miss. Code Ann. §11-11-3(3) does not contain any language preventing permissive joinder under Miss. R. Civ. P. 20. Further, the plain language does not prevent the application of Miss. R. Civ. P. 82(c). Miss. Baptist Health Sys. v. Harkins, 245 So.3d 370, 2018 Miss. LEXIS 69 (Miss. 2018).

In bringing their medical malpractice claims, the husband and wife were allowed to choose between two counties where both counties satisfied the categorical requirement contained in Miss. Code Ann. §11-11-3(3) and the medical center and the various healthcare providers had been properly joined. Miss. Baptist Health Sys. v. Harkins, 245 So.3d 370, 2018 Miss. LEXIS 69 (Miss. 2018).

Statute pertains to civil actions of which the circuit court has original jurisdiction, not exclusive jurisdiction; only subsection (1)(a)(i) specifies venue in “circuit court,” every other subsection refers to “any civil actions,” and therefore, the statute is applicable to civil actions in “all courts.” Purdue Pharma L.P. v. State, 256 So.3d 1, 2018 Miss. LEXIS 415 (Miss. 2018).

Plaintiff could not establish venue in Hinds County pursuant to any basis provided for in Miss. Code Ann. §11-11-3(1)(a)(i) for the following reasons: (1) defendant, resided in Rankin County at the time of the accident; (2) the insurance company’s principal place of business was outside of Mississippi; (3) the communications received in Hinds County by plaintiff between himself and the insurance company were not sufficient to show that a substantial alleged act or omission occurred in Hinds County; and (4) the accident, which occurred in Rankin County, was “a substantial event that caused the injury. Holmes v. McMillan, 21 So.3d 614, 2009 Miss. LEXIS 567 (Miss. 2009).

In a contractor’s action against a subcontractor, because there was a resident defendant, the subcontractor, venue was proper only in a county where the resident defendant lived or where the cause of action occurred. Thus the trial court abused its discretion in denying a change of venue and misinterpreted Miss. Code Ann. §§11-11-3 and11-11-7 because Miss. Code Ann. §11-11-3 was mandatory and Miss. Code Ann. §11-11-7 was permissive Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 2004 Miss. LEXIS 1329 (Miss. 2004).

Where the insurer alleged that the insured committed insurance fraud, the insured’s assertion that it was an in personam action, with venue in the county where the insured resided, was rejected; the specific terms of Miss. Code Ann. §11-5-1 regarding venue for real and personal property actions, prevailed over the general terms of Miss. Code Ann. §11-11-3, which placed venue generally in the county of the defendant’s residence, thus, venue was properly in the county of the insurer’s office where the certificates were issued, and from where the claims were paid. Guice v. Miss. Life Ins. Co., 836 So. 2d 756, 2003 Miss. LEXIS 56 (Miss. 2003).

Of right, plaintiff selects among permissible venues, and his choice must be sustained unless, in the end, there is no factual basis for claim of venue. Forrest County Gen. Hosp. v. Conway, 700 So. 2d 324, 1997 Miss. LEXIS 457 (Miss. 1997).

Venue in wrongful death action alleging medical malpractice was proper either in county in which patient died some six months after allegedly negligent care was rendered, or in county in which that care was rendered. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Terms “occurs” and “accrues,” as used in venue statute, are not synonymous, legally or otherwise. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Cause of action “accrues,” for venue purposes, when it comes into existence as enforceable claim, that is, when right to sue becomes vested; this may well mean moment injury is inflicted, that point in space and time when last legally significant fact is found. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

Cause of action must exist and be complete before action can be commenced, and, when suit is begun before cause of action accrues, it will generally be dismissed if proper objection is made. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

If plaintiff selects among permissible venues, his choice must be sustained unless in end there is no credible evidence supporting factual basis for claim of venue; put otherwise, plaintiff must be given benefit of reasonable doubt. McMillan v. Puckett, 678 So. 2d 652, 1996 Miss. LEXIS 215 (Miss. 1996).

For purposes of venue, cause of action in wrongful death case may occur and/or accrue in both county where death occurred and county where alleged negligence took place, making either county, if they are different, permissible venue. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

Wrongful death action arising out of medical care and/or treatment rendered to decedent by physicians was properly venued either in county where alleged negligence occurred or in county where decedent died. Burgess v. Lucky, 674 So. 2d 506, 1996 Miss. LEXIS 266 (Miss. 1996).

There is no language in §11-11-5 suggesting that it is the only venue statute to which parties may resort in an action against a railroad. If one of the 3 alternative tests for venue in the railroad venue statute be met, the parties are limited to those 3 choices. However, where one of the tests for venue under the railroad venue statute is not met, the language of the statute does not exhaust the possibility of proper venue against the railroad. The railroad venue statute, because it employs the permissive “may,” requires that it be read in conjunction with the general venue statute, §11-11-3, which provides that actions “shall” be commenced in one of the counties authorized, “except where otherwise provided.” Missouri Pac. Missouri P. R. Co. v. Tircuit, 554 So. 2d 878, 1989 Miss. LEXIS 498 (Miss. 1989).

In an action to set aside an allegedly fraudulent conveyance of personal property, venue was in the county in which the property was located since the specific terms of Code 1972, §11-5-1 prevail over the general terms of Code 1972, §11-11-3. Green v. Winona Elevator Co., 319 So. 2d 224, 1975 Miss. LEXIS 1475 (Miss. 1975).

In a replevin action, a motion to exclude evidence offered by the plaintiff and direct a verdict for the defendants on the ground that the court lacked venue jurisdiction, made at the conclusion of plaintiff’s evidence, was not timely. Ainsworth v. Blakeney, 232 Miss. 297, 98 So. 2d 880, 1957 Miss. LEXIS 476 (Miss. 1957).

Where there are two or more defendants to a transitory cause of action the venue of which is fixed by statute in either of two or more counties, the plaintiff or complainant may elect to bring the suit in either county, provided that the defendant in the county where the suit is brought is a material party and there is a valid cause of action against him and he is not fraudulently joined for the purpose of fixing venue. Myers v. Vinson, 212 Miss. 85, 54 So. 2d 168, 1951 Miss. LEXIS 430 (Miss. 1951).

Plaintiff should not be permitted to fix venue by agreement with alleged joint tort-feasor when so to do will destroy statutory right of joint tort-feasor as to venue of cause against him. Nicholson v. Gulf, M. & N. R. Co., 177 Miss. 844, 172 So. 306, 1937 Miss. LEXIS 168 (Miss. 1937).

Allegations of declaration are not conclusive on question of proper venue. Trolio v. Nichols, 160 Miss. 615, 133 So. 207 (Miss. 1931); Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Statute fixing venue in action against railroad in any county in which line of railroad runs is applicable only when railroad is sued alone; suit against two or more railroads as necessary defendants or against several defendants living in separate counties falls under provisions of general venue statutes. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

The statute does not apply to a suit of replevin. Ellison v. Lewis, 57 Miss. 588, 1880 Miss. LEXIS 6 (Miss. 1880).

3. Jurisdiction.

Although compelling interests, such as territorial limits inherent in in rem title dispute or internal police regulations of foreign state, can in some cases permit, but not require, Mississippi Court to forego exercise of its judicial power. No such compelling interests exist in action brought by building owner against company which designed and manufactured fire-proofing materials containing asbestos which were installed in plaintiff’s building. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Dismissal, after settlement, of the defendant residing in the county in which suit was brought, does not affect jurisdiction of the suit in such county against the nonresident defendant. New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 146 So. 2d 882, 1962 Miss. LEXIS 544 (Miss. 1962).

Court should refuse to exercise jurisdiction obtained by agreement with one of two joint tort-feasors, since result thereof constitutes fraud on jurisdiction of court, and such acts become fraudulent in nature, where purpose and result is to defeat right guaranteed by law, notwithstanding that lawful act does not become unlawful merely because it may be done by agreement between parties. Nicholson v. Gulf, M. & N. R. Co., 177 Miss. 844, 172 So. 306, 1937 Miss. LEXIS 168 (Miss. 1937).

Defendant in county of whose residence action was brought against several must be a material defendant, proper party, and not joined for the sole purpose of conferring jurisdiction. Trolio v. Nichols, 160 Miss. 615, 133 So. 207 (Miss. 1931).

Actions other than local must be commenced in the county in which the defendants or some of them may be found, and jurisdiction does not attach where defendant is served with process from a county other than his residence. Cook v. Pitts, 114 Miss. 39, 74 So. 777, 1917 Miss. LEXIS 9 (Miss. 1917).

4. Venue where defendant resides or is found.

Venue was proper in the county where an action was commenced because the county was where the land at issue was located, where the decision was made to purchase the property, where a purported partnership was formed among the parties, and where the sale of the land occurred that resulted in a profit. Latham v. Johnson, 262 So.3d 569, 2018 Miss. App. LEXIS 314 (Miss. Ct. App. 2018), cert. denied, 260 So.3d 798, 2019 Miss. LEXIS 48 (Miss. 2019).

Pursuant to the general venue statute, venue was proper in the First Judicial District of Harrison County because the Mississippi State Port Authority “resided” there; the Port Authority’s offices, operations, employees, and commissioners were located in Harrison County, and thus, the Port Authority both “resided” and had its “principal place of business” in Harrison County. Miss. State Port Auth. at Gulfport v. S. Indus. Contrs. LLC, 271 So.3d 742, 2018 Miss. App. LEXIS 653 (Miss. Ct. App. 2018).

Trial court erred in granting a corporation’s motion for a change of venue where, in adopting Miss. Code Ann. §11-11-3(1)(b) (Rev. 2004), the legislature intended that a corporation would have only one place of business, the corporation was a nonresident defendant with its principal place of business in another state, and thus, plaintiff was entitled to commence his action in the county where he resided. Smith v. Kan. City Southern Ry. Co., 214 So.3d 272, 2017 Miss. LEXIS 119 (Miss. 2017).

Trial court did not abuse its discretion in finding that Madison County, Mississippi, was not the proper venue for a university football player’s lawsuit because the university was not incorporated or situated in Madison County, and the university’s head strength and conditioning coach did not reside in Madison County; the football player’s receipt of mail at his residence and his signing of his National Letter of Intent in Madison County, standing alone, were insufficient to create venue. Ramsey v. Auburn Univ., 191 So.3d 102, 2016 Miss. LEXIS 82 (Miss. 2016).

Appeal of a prisoner’s jail-time credit grievance, brought in the Lowndes County Circuit Court, was properly dismissed for improper venue because: (1) if the motion had been for post-conviction relief, jurisdiction would have been proper in Lowndes County because that was where the prisoner’s conviction had been obtained; (2) however, the motion was not for post-conviction relief; (3) rather, the prisoner was appealing the decision of an administrative agency, and as a result, jurisdiction was proper in the county where the defendant resided, which in the case at hand was Marion County, the prisoner’s county of incarceration. Stokes v. State, 984 So. 2d 1089, 2008 Miss. App. LEXIS 374 (Miss. Ct. App. 2008).

Inmate’s claim that applying Miss. Code Ann. §47-5-138.1 constituted an ex post facto law was improperly dismissed for improper venue where the inmate only took issue with whether the inmate was entitled to trusty earned time, venue was governed by Miss. Code Ann. §11-11-3(a), and where the action was filed in the county where the inmate was incarcerated at a facility where two prison officials worked and the actions that denied the inmate trusty earned time occurred. Horton v. Epps, 966 So. 2d 839, 2007 Miss. App. LEXIS 664 (Miss. Ct. App. 2007).

Change of venue should have been granted because the mandatory language of the general venue statute of former Miss. Code Ann. §11-11-3 controlled over the permissive language of former Miss. Code Ann. §11-11-11 so that plaintiffs were not entitled to establish venue in their county of residence when a resident defendant was a party to the negligence suit; Miss. R. Civ. P. 82(c) did not establish venue in plaintiffs’ county of residence, and venue was determined from the date of original filing so that the dismissal of the resident defendant did not cure or correct improper venue where the alleged slip and fall and negligent medical treatment occurred in another county. Crenshaw v. Roman, 942 So. 2d 806, 2006 Miss. LEXIS 655 (Miss. 2006).

Venue in a personal injury action was improper in Hinds County because a defendant, who resided in Hinds County, was improperly joined as he was not present at the skating rink when the accident took place, he was not responsible for supervising public sessions, and he had no duty to discourage high speed skating. Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 2006 Miss. LEXIS 584 (Miss. 2006).

Trial court erred in dismissing for lack of jurisdiction an inmate’s suit against prison employees that challenged the earned time credit on his armed robbery sentence because contrary to the holding of the trial court, the matter was not in the nature of postconviction relief. Because the inmate was suing the employees of the prison, venue was appropriate in the county where the prison was located. Guy v. State, 915 So. 2d 508, 2005 Miss. App. LEXIS 898 (Miss. Ct. App. 2005).

Where plaintiff, a resident of Claiborne County, Mississippi, sued two nonresident defendants and a doctor who resided in Warren County, Mississippi, Miss. Code Ann. §11-11-3(1) (Supp. 2001) dictated that Warren County was the only county of appropriate venue because it was the only county in Mississippi in which a defendant (the doctor) resided. The permissive language of the statute–“may also be commenced in the county in which the plaintiff resides”–applied only where there was no resident defendant. Namihira v. Bailey, 891 So. 2d 831, 2005 Miss. LEXIS 38 (Miss. 2005).

Both Miss. R. Civ. P. 82(e) and Miss. Code Ann. §11-11-3(4)(a) required the transfer of a case brought by a resident of Claiborne County, Mississippi, against a doctor, who resided in Warren County, Mississippi, and two nonresident defendants to county of proper venue–i.e., Warren County–where the reason for the transfer was the inability to seat an impartial jury. Warren County was the only county of appropriate venue because it was the only county in Mississippi in which a defendant (the doctor) resided. Namihira v. Bailey, 891 So. 2d 831, 2005 Miss. LEXIS 38 (Miss. 2005).

Medical malpractice action against hospital and physician at hospital, which was based on alleged negligence in failing to diagnose disease of child patient, occurred or accrued, for purposes of venue statute in county where hospital was located, and not in separate county where injuries manifested themselves after patient was transferred to university hospital, and thus, county where university hospital was located, in which neither plaintiff nor any of named defendants resided, was not proper venue for action. Forrest County Gen. Hosp. v. Conway, 700 So. 2d 324, 1997 Miss. LEXIS 457 (Miss. 1997).

In suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants. This is true where the defendant upon whom venue is based is subsequently dismissed from the suit. In such situations, venue as to the remaining defendants continues despite the fact that venue would have been improper if the original action had named them only. Blackledge v. Scott, 530 So. 2d 1363, 1988 Miss. LEXIS 434 (Miss. 1988).

The right to be sued in the county of one’s residence is a valuable right. Crosby v. Robertson, 243 Miss. 420, 137 So. 2d 916, 1962 Miss. LEXIS 358 (Miss. 1962).

The staying, for 45 days, of an order granting a change of venue of an action dismissed as to a resident defendant, to the county in which the other defendants reside, is ineffectual to retain jurisdiction to render judgment, where the application for a stay merely states that it has been discovered that another resident of the county should be named as a defendant, without giving his name, stating how he is involved, or what facts created his liability. Crosby v. Robertson, 243 Miss. 420, 137 So. 2d 916, 1962 Miss. LEXIS 358 (Miss. 1962).

A judgment recovered in an action brought in Forrest County, place of plaintiff’s residence, for the value of certain merchandise allegedly sold to a resident of Jones County, upon whom service was made by leaving a copy of the summons with his wife, was void. Bryant v. Lovitt, 231 Miss. 736, 97 So. 2d 730, 1957 Miss. LEXIS 560 (Miss. 1957).

Where a default judgment recovered in an action brought in Forrest County, place of plaintiff’s residence, for the value of certain merchandise allegedly sold to the resident of Jones County, upon whom service was made by leaving a copy of the summons with defendant’s wife, was void, the defendant was not compelled to appear in the case and move for change of venue to the county of his residence; nor did he submit himself to the jurisdiction of the court and waive venue of the action by attacking the legality of the summons, the validity of judgment, and denying his liability to the plaintiff. Bryant v. Lovitt, 231 Miss. 736, 97 So. 2d 730, 1957 Miss. LEXIS 560 (Miss. 1957).

Proper venue of mandamus proceeding against commissioner of Mississippi Highway Safety Patrol is public officer’s official domicil, that is, the City of Jackson in the First Judicial District of Hinds County. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Circuit Court of Lamar County had venue of personal action against resident of Lauderdale County when joined with a defendant who was resident of Lamar County, though local resident had been judicially declared non compos mentis, was personally served with summons under original declaration to which his guardian was not a party, and later served with summons issued on amended complaint for guardian and ward, after service of summons and copy issued on amended complaint was served on his guardian. Owen v. Sumrall, 204 Miss. 15, 36 So. 2d 800, 1948 Miss. LEXIS 339 (Miss. 1948).

Right of a citizen to be sued in the county of his residence is a valuable right, and, when there are several defendants in a non-local civil action residing in different counties, the action must be brought in the county of the residence of a real and material defendant. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Good faith of plaintiff in joining as party defendant resident of county in which action is commenced with residents of another county, is pertinent only where the facts of liability vel non against a resident defendant are involved in a complicated set of circumstances from which, when fully developed, more than one reasonable conclusion might be drawn by the jury or where because of nice distinctions to be applied as a matter of law, it cannot be told in advance of a full development of the case whether the resident defendant will be held liable by the courts. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

In action for death of automobile occupant, declaration alleging that deceased’s driver failed to exercise reasonable care to avoid collision with driver of another automobile crossing intersection at high speed stated cause of action against both drivers, and hence venue should not be changed from county of first driver’s residence. Daniel v. Livingstone, 168 Miss. 311, 150 So. 662, 1933 Miss. LEXIS 177 (Miss. 1933).

Defendant in county of whose residence action was brought against several must be material defendant, proper party, and not joined for sole purpose of conferring jurisdiction. Trolio v. Nichols, 160 Miss. 615, 133 So. 207 (Miss. 1931).

Where defendant in whose county action against several is brought is joined for fraudulent purpose of conferring jurisdiction, cause will be dismissed or transferred. Trolio v. Nichols, 160 Miss. 615, 133 So. 207 (Miss. 1931).

Judgment against defendant, a nonresident of county of suit, held voidable, if not void, where resident defendant was not served with process. Perry v. Nolan & Maris, 159 Miss. 384, 131 So. 252, 1930 Miss. LEXIS 364 (Miss. 1930).

Manufacturer’s agent may be joined as defendant in suit based on negligence in permitting deleterious substances in drinks; agent of manufacturer was properly joined in suit for permitting deleterious substances in drinks and venue properly laid in county where agent is doing business. Bufkin v. Grisham, 157 Miss. 746, 128 So. 563, 1930 Miss. LEXIS 326 (Miss. 1930).

Where there are two defendants suit may be brought in the county of the residence of either. Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409, 1919 Miss. LEXIS 162 (Miss. 1919).

Under Acts 1894, ch 64, no exception is created to the rule embodied in Code 1892, § 650 (Code 1906, § 707), and a foreign surety company under that act could only be sued in the circuit court of a county in which it has an agent upon whom process could there be served. American Surety Co. v. Holly Springs, 77 Miss. 428, 27 So. 612, 1899 Miss. LEXIS 84 (Miss. 1899).

Where the defendant, after the commencement of a suit but before the service of process on him, removes into another county, plaintiff may have a testatum writ. Andrews v. Powell, 41 Miss. 729, 1868 Miss. LEXIS 28 (Miss. 1868).

Where an action is begun against several persons and none are served in the county, and the suit is dismissed as to those who reside there, and who have never been served, jurisdiction will be gone. Wolley v. Bowie, 41 Miss. 553, 1867 Miss. LEXIS 32 (Miss. 1867).

If the defendant in the county be served, the suit may be discontinued as to him without losing jurisdiction. Read v. Renaud, 14 Miss. 79, 1846 Miss. LEXIS 33 (Miss. 1846).

Where duplicate writs are issued and are served upon all of the defendants in a county other than that in which the suit was brought, and the process to the county where the suit is brought was returned “not found” as to all, the court should dismiss the case for want of jurisdiction on a showing that all defendants, at the time the suit was begun, lived out of the county. Bank of Vicksburgh v. Jennings, 6 Miss. 425, 1841 Miss. LEXIS 16 (Miss. 1841).

5. Venue where acts or substantial event occurred.

Circuit court erred in changing venue in plaintiff’s defamation case from the Circuit Court of the First Judicial District of Harrison County, Mississippi, to another circuit court because the record showed that the substantial event that caused plaintiff injury, the publication of the episode that caused her reputational harm, occurred in the First Judicial District of Harrison County, where plaintiff resided, where people were exposed to the material who might actually know plaintiff or interact with her in a way that could be affected by the information, and where plaintiff’s reputation would suffer the most harm, where she lived and worked and where the people with whom she had personal or commercial relationships resided. Short v. Versiga, — So.3d —, 2019 Miss. LEXIS 355 (Miss. Oct. 3, 2019).

Trial court erred in denying defendant’s motion to transfer venue because a permissible venue existed, and it was not proper for plaintiffs to select the county of residence of one of the plaintiffs; the proper venue was in the county where the accident occurred because the accident was a substantial event that caused plaintiffs’ injury, and the corporate defendants did not have principal places of business in Mississippi, and the alleged acts or omissions occurred outside Mississippi. Herman Grant Co. v. Washington, 214 So.3d 266, 2017 Miss. LEXIS 122 (Miss. 2017).

Trial court did not abuse its discretion in finding that Madison County, Mississippi, was not the proper venue for a university football player’s lawsuit because the football player did not articulate that the university or its head strength and conditioning coach either committed a substantial alleged act or omission or that a substantial event that caused his injury occurred in Madison County; the football player did not plead such facts in his complaint. Ramsey v. Auburn Univ., 191 So.3d 102, 2016 Miss. LEXIS 82 (Miss. 2016).

Insured’s dismantling of a building in Warren County and the resultant lawsuit constituted a substantial event that caused injury pursuant to Miss. Code Ann. §11-11-3(1)(a)(i). The insured established adequately that Warren County was a proper venue, and the insured’s choice of permissible venue options controlled. Greenwood v. Mesa Underwriters Specialty Ins. Co., 179 So.3d 1082, 2015 Miss. LEXIS 581 (Miss. 2015).

It was error to deny insureds’ motion to transfer venue to Smith County in an insurer’s action disputing coverage, as the insurer failed to provide sufficient facts to show that venue was proper in Rankin County because there was no “significant act or omission” or “substantial event causing injury” there; the insureds resided in Smith County, the accident happened there, and any misrepresentations in the policy occurred in Covington County. Wood v. Safeway Ins. Co., 114 So.3d 714, 2013 Miss. LEXIS 325 (Miss. 2013).

Pursuant to Miss. Code Ann. §11-11-3, venue was proper only in Rankin County on the beneficiary’s claim against the insurer for benefits because the insurer’s agents resided in Rankin County and the beneficiary was in Smith County only when he was informed of the denial of benefits, which was insufficient to establish venue. Am. Family Life Assur. of Columbus v. Ellison, 4 So.3d 1049, 2009 Miss. LEXIS 72 (Miss. 2009).

Because “substantial alleged acts,” as well as “a substantial event that caused injury” occurred in plaintiff renters’ choice of venue, i.e., their personal property was damaged there and the acts upon which they based their tort claims took place there, venue was proper in the county of their choice as it was one of four choices laid out under Miss. Code Ann. §11-11-3(1)(a)(I) and the trial court erred in transferring the case. Hedgepeth v. Johnson, 975 So. 2d 235, 2008 Miss. LEXIS 103 (Miss. 2008).

6. Venue as to corporations.

Venue of a mandamus action by Hancock County to compel the state highway commission to appraise and reimburse such county its proportionate value of a bridge constructed by Hancock and Harrison counties, which had been taken over by the highway commission and had become a part of United States Highway 90, was in Hinds County, where the state highway commission had its permanent office. State ex rel. Cowan v. State Highway Com., 195 Miss. 657, 13 So. 2d 614, 1943 Miss. LEXIS 120 (Miss. 1943).

Chancery court of county from which domestic corporation, garnished as debtor of foreign bank in attachment suit against latter, moved its property, office, and place of stockholders’ meeting, as permitted by its charter, before issuance of process for it to sheriff of such county, had no territorial jurisdiction of such bank or garnishee. Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104, 1935 Miss. LEXIS 107 (Miss. 1935).

Employee’s suit for personal injuries against employer, a domestic corporation, held not maintainable in county where corporation was not domiciled or other than where injuries were received. Batson & Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880, 1931 Miss. LEXIS 29 (Miss. 1931).

“Principle place of business” is synonymous with domicil in determining venue. Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907, 1916 Miss. LEXIS 360 (Miss. 1916).

7. —Where cause of action occurs or accrues.

Trial court did not abuse its discretion in transferring venue to Clarke County, Mississippi pursuant to Miss. Code Ann. §11-11-3 because a company was a nonresident defendant; thus, venue was appropriate in Clarke County because the substantial alleged act or substantial event causing the injury occurred there, and the subcontractor sought a scheduling order and a trial setting in Clarke County. Reeves v. Midcontinent Express Pipeline, LLC, 119 So.3d 1097, 2013 Miss. App. LEXIS 263 (Miss. Ct. App. 2013).

In a wrongful death action, a trial court did not err in transferring a hospital and other medical defendants to the county where the hospital was located because under Miss. Code Ann. §11-11-3(3), the only proper venue for a suit against medical providers was the county in which the alleged act or omission occurred; the presence of medical providers in the action rendered inapplicable the more general venue provision of Miss. Code Ann. §11-11-3(1)(a)(i). Adams v. Baptist Mem'l Hospital-Desoto, Inc., 965 So. 2d 652, 2007 Miss. LEXIS 472 (Miss. 2007).

In a doctor’s action against a medical malpractice insurer for the insurer’s decision not to renew the doctor’s medical malpractice insurance, because it was the insurer’s decision not to renew the insurance policy that was the alleged cause of the doctor’s injuries, every substantial act, omission, or injury-causing event occurred in the county where the insurer was located and made the decision, and venue under Miss. Code Ann. §11-11-3 was proper in that county; therefore, the chancery court improperly granted, pursuant to Miss. R. Civ. P. 60(b)(6), the doctor’s motion to reconsider the chancery court’s original order transferring the case to the proper county, as there were no extraordinary circumstances compelling relief from the original order. Medical Assur. Co. v. Myers, 956 So. 2d 213, 2007 Miss. LEXIS 275 (Miss. 2007).

Consumer’s alleged injury did not occur or accrue in Smith County; thus, under Miss. Code Ann. §11-11-3, venue was proper in Wayne County as that was the point of origin of her claim against the pharmaceutical companies, and the performance and interpretation of an echocardiogram in Smith County was not sufficient as to constitute substantial component of the claim. Am. Home Prods. Corp. v. Sumlin, 942 So. 2d 766, 2006 Miss. LEXIS 654 (Miss. 2006).

In the former clients’ malpractice action against the attorney who represented them in prior Phen-Fen litigation, the clients claimed that the attorney and his assistant induced them into signing a release and accepting an unfavorable settlement by misrepresentations, and they relied upon conversations, visits, and correspondence carried out or received in Kemper County, the county of their residence. Therefore the trial court correctly applied the applicable venue statute, Miss. Code Ann. §11-11-3(1), in concluding that the clients were afforded the right to choose among permissible venues and that there choice of venue had to be sustained where there was credible evidence suggesting that the former clients’ causes of action accrued and/or occurred in Kemper County such that venue was proper therein. Williamson v. Edmonds, 880 So. 2d 310, 2004 Miss. LEXIS 1031 (Miss. 2004).

Venue in an action which included an automobile insurance company as a defendant was not proper under Miss. Code Ann. §11-11-7 [Repealed] because a policy issued by an insurance company located in that county covered the insured vehicle for liability only and not property damage occurring in a one-car accident; venue was however proper under Miss. Code Ann. §11-11-3 as the accident occurred in the first county, and the trial court therefore erred in transferring venue in an action brought by the insured parties from the first county to the county where the other defendants were located. Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So. 2d 8, 2002 Miss. LEXIS 205 (Miss. 2002).

In a personal injury action brought against an airline charter corporation arising from injuries allegedly caused by the shifting of improperly loaded cargo, venue was proper in the county where the cargo was loaded onto the plane, even though the plaintiff’s injury occurred at an airport in another state, since a civil action against a corporation is proper in the county where the cause of action occurred, and the injury could not have occurred had it not been for the negligent loading of the airplane. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

In a proceeding upon attachment in chancery to recover for injuries received and to attach nonresident corporate defendant’s funds and property at the hands of Mississippi corporation, which operated a motor transportation line in Winston County, and a person residing in Choctaw County, although another defendant resided in Hinds County venue was properly laid in Winston County. Continental Southern Lines, Inc. v. Wicker, 217 Miss. 856, 65 So. 2d 272, 1953 Miss. LEXIS 501 (Miss. 1953).

In an action to recover damages for breach of contract to furnish and install an ice cream freezing unit, the cause of action against a foreign corporation authorized to do business in the state accrued in the county in which the failure to install the unit occurred and therefore the venue was fixed there. Southern Wholesalers v. Stennis Drug Co., 214 Miss. 461, 59 So. 2d 78, 1952 Miss. LEXIS 491 (Miss. 1952).

A cause of action for libel against a newspaper accrues where the paper is first published. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

In libel action against newspaper, having its place of business in Hinds county, cause of action accrued in Hinds county where alleged libelous matter was first published and circulated, and the fact that the alleged libel was also circulated in Sunflower county through a local distributor, did not establish a new and separate cause of action in Sunflower county. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

Where alleged libel was published by a newspaper corporation in Hinds County, joinder of distributor, circulating paper in Sunflower County, who was not an agent or servant of publisher and who was free to dispose of papers as she saw fit, was not effective to fix venue in Sunflower County. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

Consumer’s cause of action for illness resulting from drinking portion of contents of bottle of soda water containing decomposed bodies of roaches held to have “occurred or accrued” in county where drink was purchased and consumed, and not where bottled. Coca-Cola Bottling Co. v. Cox, 174 Miss. 790, 165 So. 814, 1936 Miss. LEXIS 228 (Miss. 1936).

Under statute fixing venue of actions against domestic corporations in county where domiciled or in county where cause of action accrued, venue of action against domestic corporation for malicious prosecution held in county where prosecution complained of terminated in defendant’s favor, since cause of action could not come into existence until such termination. Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, 1935 Miss. LEXIS 76 (Miss. 1935).

Where accident resulting in death occurred in J. county, circuit court of J. county had jurisdiction of action for death against domestic corporation domiciled in another county. Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677, 1931 Miss. LEXIS 173 (Miss. 1931).

Foreign corporation designating resident agent could be sued in circuit court of county where transitory cause of action accrued. Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887, 1930 Miss. LEXIS 353 (Miss. 1930).

Foreign corporation designating resident agent is placed, as regards venue in transitory action, in same position as domestic corporation. Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887, 1930 Miss. LEXIS 353 (Miss. 1930).

8. —Foreign corporations.

General venue statute for chancery court did not apply in the State’s action against pharmaceutical manufacturers because the location of a foreign corporation’s registered agent was irrelevant to determine venue; because the general venue statute for chancery court did not apply, and the general venue statute provided criteria that did not rely on the location of a registered agent, the trial court’s reliance on the general venue state was appropriate. Purdue Pharma L.P. v. State, 256 So.3d 1, 2018 Miss. LEXIS 415 (Miss. 2018).

Because the State’s Medicaid agency was located in Hinds County, Mississippi along with most state agencies, venue in Hinds County was appropriate in the State’s action against pharmaceutical manufacturers. Purdue Pharma L.P. v. State, 256 So.3d 1, 2018 Miss. LEXIS 415 (Miss. 2018).

As the United States Supreme Court has held, interpreting the venue statute to allow a foreign corporation to have only one principal place of business promotes simplicity and avoids complex litigation. Principal place of business is a singular reference to a corporation’s nerve center. Having multiple principal places of business nationally as well as in each state does not logically promote the term principal place. The statute refers to a corporation’s principal place of business and not to its principal places of business. The term place is singular, which indicates that there can be only one. The plain language of the statute reads if venue in a civil action against a nonresident defendant cannot be asserted a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled. Miss. Code Ann. §11-11-3(1)(b). Smith v. Kan. City Southern Ry. Co., 214 So.3d 272, 2017 Miss. LEXIS 119 (Miss. 2017).

Supreme Court of Mississippi finds that a corporation may have only one principal place of business. Holding that the Legislature intended the venue statute to apply to a corporation’s principal place of business inside Mississippi would require analyzing in each case how much of a presence a foreign business has to have in Mississippi to have a principal place of business both inside Mississippi and nationally. Additionally, if any business with an office in Mississippi can be considered to have a principal place of business inside the state, that interpretation would render Miss. Code Ann. §11-11-3(1)(b) venue in the county of the plaintiff’s residence or domicile, virtually irrelevant. If the Legislature had intended for a foreign corporation to have a principal place of business inside the state, it easily could have clearly stated that in the statute. Smith v. Kan. City Southern Ry. Co., 214 So.3d 272, 2017 Miss. LEXIS 119 (Miss. 2017).

Parent company of an alcohol permit holder should have been dismissed from a personal injury case because it was not liable under Miss. Code Ann. §67-1-83 since it was not a permit holder itself or an employee of such; moreover, the pleadings did not adequately state a claim showing that the corporate veil should have been pierced. Penn Nat'l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 2007 Miss. LEXIS 229 (Miss. 2007).

Because parent company was a foreign corporation with its principal place of business in Pennsylvania, the only place where it could be said to reside in Mississippi was where an agent for service of process may be found; thus, because the family failed to plead fact sufficient to state a claim against the parent company, their claim was unreasonable and the trial court erred in denying the motion to transfer venue, as there was no reasonable basis to keep the parent company in the suit. Penn Nat'l Gaming v. Ratliff, 2007 Miss. LEXIS 1 (Miss. Jan. 4, 2007), op. withdrawn, sub. op., 954 So. 2d 427, 2007 Miss. LEXIS 229 (Miss. 2007).

Where an accident occurred in Jefferson County, the insured, a Jefferson County resident, had purchased insurance from an agency located in Adams County, but the book of insurance and the agency were transferred to a different agent, in Warren County, and the insurer’s registered agent for process was in Rankin County, and but for the accident in Jefferson County, no injury would have occurred and no suit would have been filed. While venue was not improper in the other counties, and while the action was for fraudulent and negligent misrepresentation and bad faith, the trial court erred in concluding that venue was not proper in Jefferson County as a substantial component of the claim, personal injury and property damage, occurred there. Snyder v. Logan, 905 So. 2d 531, 2005 Miss. LEXIS 4 (Miss. 2005).

In a proceeding upon attachment in chancery to recover for injuries received and to attach nonresident corporate defendant’s funds and property at the hands of Mississippi corporation, which operated a motor transportation line in Winston County, and a person residing in Choctaw County, although another defendant resided in Hinds County venue was properly laid in Winston County. Continental Southern Lines, Inc. v. Wicker, 217 Miss. 856, 65 So. 2d 272, 1953 Miss. LEXIS 501 (Miss. 1953).

This section [Code 1942, § 1433] applies to foreign corporations who are subject to the same rights and disabilities as to venue as are domestic corporations. Southern Wholesalers v. Stennis Drug Co., 214 Miss. 461, 59 So. 2d 78, 1952 Miss. LEXIS 491 (Miss. 1952).

In an action to recover damages for breach of contract to furnish and install an ice cream freezing unit, the cause of action against a foreign corporation authorized to do business in the state accrued in the county in which the failure to install the unit occurred and therefore the venue was fixed there. Southern Wholesalers v. Stennis Drug Co., 214 Miss. 461, 59 So. 2d 78, 1952 Miss. LEXIS 491 (Miss. 1952).

A foreign corporation, which has appointed a resident agent, is subject to the same rights and disabilities as to venue as are domestic corporations. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

Suit by domestic corporation against foreign corporation for breach of contract to buy piling, in procuring piling from subproducers in another state, thus preventing delivery by plaintiff, could not be brought in county of plaintiff’s domicile but only in county of defendant’s domicile, since cause of action, if any, occurred or accrued without the state. McLeod Lumber Co. v. Manassa Timber Co., 180 Miss. 552, 178 So. 83, 1938 Miss. LEXIS 16 (Miss. 1938).

Foreign corporation designating resident agent could be sued in circuit court of county where transitory cause of action accrued. Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887, 1930 Miss. LEXIS 353 (Miss. 1930).

Foreign corporation designating resident agent is placed, as regards venue in transitory action, in same position as domestic corporation. Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887, 1930 Miss. LEXIS 353 (Miss. 1930).

Mortgagor may sue for relief against sales of mortgaged property contrary to agreement in county where general agent of nonresident insurance company whose policy was assigned to mortgagees is found; and his bill for relief in such case is not multifarious for joining insurance company. Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874, 1927 Miss. LEXIS 280 (Miss. 1927).

A foreign corporation may be found in any county in which it has an agent upon whom process can be served. Dean v. Brannon, 139 Miss. 312, 104 So. 173, 1925 Miss. LEXIS 160 (Miss. 1925).

9. Municipal corporations.

This section [Code 1942, § 1433] does not apply to a municipality. City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 1940 Miss. LEXIS 104 (Miss. 1940).

A suit for personal injuries against a power company and a municipality, brought in a county where the power company had a power line but not in the county of the municipality’s domicil, could not be maintained against the municipality in such county. City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 1940 Miss. LEXIS 104 (Miss. 1940).

10. Actions relating to land; ejectment, etc.

Where the plaintiff alleged an actual physical invasion of the subject property in a “nuisance” cause of action, the action was actually one for trespass to realty and was thus subject to the local action doctrine. Donald v. AMOCO Prod. Co., 735 So. 2d 161, 1999 Miss. LEXIS 125 (Miss. 1999).

Statute recognizes only 3 categories of “local” actions: actions of trespass on land; ejectment proceedings; and actions for statutory penalty for cutting and boxing trees and firing woods. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Action by building owner to recover cost of asbestos abatement program against company which designed and manufactured fire-proofing materials that contained asbestos which were installed in building owned by plaintiff does not fall within any of 3 categories of “local” action (trespass on land; ejectment; cutting and boxing trees and firing woods), thus was not local action under Mississippi law, and courts in Mississippi, including Federal District Court, properly could exercise jurisdiction over it. Trust Co. Bank v. United States Gypsum Co., 950 F.2d 1144, 1992 U.S. App. LEXIS 569 (5th Cir. Miss. 1992).

Where defendants resided in another county, an action for value of timber cut was properly laid in county in which land was situated. Bassett v. Stringer, 216 Miss. 766, 63 So. 2d 234, 1953 Miss. LEXIS 692 (Miss. 1953).

Where suit to recover the value of trees cut and removed from plaintiff’s land and the statutory penalty therefor was brought in the wrong county and it was transferred to the proper county and received by the clerk thereof, and plaintiff was not a nonresident nor was she shown to have been insolvent, it was the duty of the clerk of court of the latter county to enter the cause on his dockets as if it had been commenced in such court without requiring security for costs, his only right to obtain security for cost being that prescribed by law after commencement of suit. Neely v. Martin, 193 Miss. 856, 11 So. 2d 435, 1943 Miss. LEXIS 13 (Miss. 1943).

Action for trespass on land is not a “transitory action.” Sharp v. Learned, 182 Miss. 333, 181 So. 142, 1938 Miss. LEXIS 168 (Miss. 1938).

An action is not “an action of trespass on land” within meaning of the statute unless there exist the elements of force and entry necessary to constitute the common-law action of quare clausum fregit. Archibald v. Mississippi & T. R. Co., 66 Miss. 424, 6 So. 238, 1889 Miss. LEXIS 120 (Miss. 1889).

Ejectment and trespass quare clausum fregit are the only ordinary actions which can be brought in a county where the defendant does not reside and is not found. Elder v. Hilzheim & Anderson, 35 Miss. 231, 1858 Miss. LEXIS 33 (Miss. 1858); Archibald v. Mississippi & T. R. Co., 66 Miss. 424, 6 So. 238, 1889 Miss. LEXIS 120 (Miss. 1889).

11. —Land located in two or more counties.

Venue of action for setting fire to grass on defendants’ land in two counties and burning bridge on road in J. county held in L. county where defendants resided. Jefferson Davis County v. Riley, 158 Miss. 473, 129 So. 324, 1930 Miss. LEXIS 14 (Miss. 1930).

In a suit for trespass on lands lying in two counties and the defendant resides in one of the counties, suit must be brought in the county of defendant’s residence. Kraus v. Stewart, 122 Miss. 503, 84 So. 463, 1920 Miss. LEXIS 450 (Miss. 1920).

12. Change of venue in general.

Since a chancery court erred in relying upon facts to support its denial of a motion to transfer venue which, even if taken as true, were neither alleged in the complaint nor supported by cognizable evidence, it improperly denied a motion to transfer venue. Wilkerson v. Goss, 113 So.3d 544, 2013 Miss. LEXIS 294 (Miss. 2013).

In a medical malpractice/wrongful death action, the trial court properly denied one physician’s motion to change venue because under Miss. Code Ann. §11-11-3, venue was proper in the county in which the parents filed their action, as that was the county in which their son died. Bullock v. Lott, 964 So. 2d 1119, 2007 Miss. LEXIS 521 (Miss. 2007).

Factual basis on which the patient and husband based their medical malpractice claim against Jefferson County Hospital failed to evidence a causal connection between the hospital’s alleged negligence and the patient’s injury; therefore, the circuit court erred in denying the healthcare providers’ and physician’s motion to transfer venue to Warren County under Miss. Code Ann. §11-11-3. Austin v. Wells, 919 So. 2d 961, 2006 Miss. LEXIS 47 (Miss. 2006).

Miss. Code Ann. §11-11-3 was not designed to remove a resident defendant’s right to be sued in his or her own county of residence as the Legislature never intended an interpretation of the venue statutes that would allow a resident defendant to be sued in the plaintiff’s county of residence simply because a nonresident defendant was joined in the same suit; the hospital was a Mississippi corporation with its principal place of business in De Soto County and the patient was treated at the hospital in De Soto County when he received the alleged negligent care and treatment; therefore, venue was proper in De Soto County and should have been transferred to that county. Baptist Mem. Hospital-Desoto, Inc. v. Bailey, 919 So. 2d 1, 2005 Miss. LEXIS 362 (Miss. 2005).

Trial court erred in denying defendants’ motion for a change of venue pursuant to Miss. Code Ann. §11-11-3 in the injured motorist’s action because the motorist’s co-worker was fraudulently joined as a defendant to obtain venue in Smith County. The motorist’s exclusive remedy against the co-worker was for workers’ compensation benefits as provided under Miss. Code Ann. §71-3-9, which extended immunity to co-workers as well as employers. Christian v. McDonald, 907 So. 2d 286, 2005 Miss. LEXIS 115 (Miss. 2005).

Pharmaceutical companies argued that the plaintiffs took the prescription drug at different times, under different labels and warnings and had different pre-existing conditions. Because of those differences, said companies sought to have plaintiffs’ joinder in Jefferson County severed, alleging that the inquiries into alleged defective design, failure to warn, breach of warranty and misrepresentation will be wholly distinct in each plaintiff’s case; the Mississippi Supreme Court concluded a jury could well be overwhelmed by the 30 separate fact patterns that were offered to prove medical malpractice, affirmed the trial court’s decision to sever plaintiffs’ claims, and affirmed the trial court’s decision allowing for transfer of the claims of those plaintiffs without jurisdiction in Jefferson County to the court or courts of plaintiffs’ counsel’s choosing. Culbert v. Johnson & Johnson, 883 So. 2d 550, 2004 Miss. LEXIS 1197 (Miss. 2004).

In an open accounts collection case, venue was proper in either Jones County or Pike County, Mississippi. Workers from the welding company, which sought monies owed, were dispatched from its Jones County offices to work at the drilling company’s oil well site in Pike county, based upon orders that were placed via telephone from Pike County to Jones County, some charges were in fact incurred in Jones County, such as employees’ travel time, and the welding company had expected payment in Jones County; thus, the drilling company’s motion for a change of venue to Pike County was properly denied. Braswell v. T & T Welding, Inc., 883 So. 2d 82, 2004 Miss. LEXIS 1026 (Miss. 2004).

Denial of the general hospital’s and physicians’ motion to transfer venue in a medical malpractice action was improper under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., where the general hospital was entitled to venue in the county in which the principal offices were located, Miss. Code Ann. §11-11-3(1), because the decedent’s heirs failed to assert a reasonable claim of liability against the medical center and treating physicians. Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 2004 Miss. LEXIS 289 (Miss. 2004).

Trial court abused its discretion in denying a motion by a hospital and three physicians to transfer venue in a medical malpractice action because a decedent’s heirs had failed to assert a reasonable claim of liability against certain defendants that had been dismissed from the action and because the hospital was a community hospital under the Mississippi Tort Claims Act and was entitled to venue in the county in which its governing body’s principal offices were located. Wayne Gen. Hosp. v. Hayes, 2003 Miss. LEXIS 598 (Miss. Nov. 6, 2003).

On a motion for a change of venue, it was a question of fact for the circuit court as to whether the defendant was a resident of Covington or Jasper Counties. Buckley v. Guilbert, 250 Miss. 240, 164 So. 2d 743, 1964 Miss. LEXIS 459 (Miss. 1964).

Since a corporation is not entitled to file a motion for change of venue, the circuit court correctly refused to change the venue in a replevin action upon the sole motion of the corporation. Ainsworth v. Blakeney, 232 Miss. 297, 98 So. 2d 880, 1957 Miss. LEXIS 476 (Miss. 1957).

Where an action was brought against the administrator of an estate and two other defendants within four days after the administrator was issued letters, but the administrator did not object that the action was prematurely brought, the codefendants of the administrator could not, on a motion for change of venue, raise the question. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

In a death action arising out of a motor vehicle collision, defendants’ motion for a change of venue, which charged that the plaintiff had failed to show any negligence on the part of the decedent so that the sole purpose of joining the administrator of decedent’s estate was to destroy the venue rights of the defendants, was properly overruled since defendants had denied negligence and had affirmatively alleged that decedent’s negligence was the sole proximate cause of the collision, they could not, without changing their position, withhold their evidence to establish decedent’s negligence, and thus nullify the proceedings by change of venue, and because plaintiff’s evidence had made a jury case as to the decedent’s negligence. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

Action of attorneys for plaintiff, who had a cause of action arising out of a motor vehicle collision, in actively participating in securing the appointment of another as administrator of decedent’s estate in order that the action against the decedent’s estate might be brought in Simpson County and thus draw two other codefendants into the circuit court of that county was not improper, in the absence of a fraudulent agreement between plaintiff’s attorneys and the administrator, so that the codefendant’s motion for a change of venue was properly denied. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

Where an automobile collision occurred in one county and the two defendants resided in another county, the plaintiff had the option of bringing suit either in the county where the accident occurred or in the county where the defendants resided and the venue could not be changed upon the application of either defendant since it appeared that both defendants were material parties, that there was a valid cause of action against both and that neither was fraudulently joined for the purpose of fixing the venue. F. B. Walker & Sons, Inc. v. Rose, 223 Miss. 494, 78 So. 2d 592, 1955 Miss. LEXIS 405 (Miss. 1955).

Fourteen-year-old boy who agreed to warn driver of farm tractor on highway of approaching traffic was not a real party to an action brought in the county of the boy’s residence against the boy and the driver and owners, who resided in another county, of a truck which collided with the tractor, for the death of the driver of the tractor, since the boy could not be held liable in tort for failure to have given such warning, and therefore motion by the nonresident defendants for change of venue to the county of their residence should have been granted. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

Defendant, a traveling salesman for a foreign corporation, who was unmarried and had no home or fixed place of residence in the state, but often stayed at a hotel in Biloxi as a place of rest and relaxation, was not entitled to have suit against him for personal injuries transferred from Jefferson Davis county, where accident had occurred and process was served, to Harrison county. Knower v. Baldwin, 195 Miss. 166, 15 So. 2d 47, 1943 Miss. LEXIS 137 (Miss. 1943).

In libel action against newspaper publishing company in Sunflower County, action was properly dismissed without prejudice where cause of action arose in Hinds County where defendant corporation was domiciled, since there is no authority to change the venue of such suit against the corporation to Hinds County. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 1943 Miss. LEXIS 132 (Miss. 1943).

The venue in a civil action should be changed on request of the party entitled thereto whenever the condition therefor arises. Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 1941 Miss. LEXIS 1 (Miss. 1941); Long v. Patterson, 198 Miss. 554, 22 So. 2d 490, 1945 Miss. LEXIS 229 (Miss. 1945).

A defendant’s request for a change of venue to the county of her residence, which would have been the proper venue but for the joinder of a codefendant, should be granted when the plaintiff rests his case without attempting to prove liability on the part of the codefendant. Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 1941 Miss. LEXIS 1 (Miss. 1941).

That the court permitted a judgment against a codefendant, notwithstanding the fact that the plaintiff rested without any attempt to establish liability on its part, does not deprive the defendant of a right to a change of venue at that stage of the case to the county of her residence, which would have been the proper venue but for the joinder of the codefendant. Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 1941 Miss. LEXIS 1 (Miss. 1941).

A motion by a defendant, in an action against him for personal injury suffered when a wooden awning attached to his building and extending over the sidewalk fell upon the plaintiff, to change the venue of the action from Forrest County to Lamar County, the residence of the defendant, on the ground that a municipality was fraudulently joined as a defendant to the suit for the purpose of depriving the defendant of his right under this section to have the case tried in Lamar County, was properly overruled where the court had not yet determined whether a municipality was charged with the duty of exercising reasonable care to prevent the awning from falling and injuring persons using the sidewalk. Weems v. Lee, 185 Miss. 98, 187 So. 531, 1939 Miss. LEXIS 141 (Miss. 1939).

In employee’s action against foreign corporation brought in county in which corporation had its business localized, defendant held not entitled to change venue to county of principal office; “found” defined. Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 1929 Miss. LEXIS 264 (Miss. 1929).

Law authorizing change of venue held inapplicable to suits pending at time of enactment. State use of Thompson v. Cloud, 146 Miss. 642, 112 So. 19, 1927 Miss. LEXIS 237 (Miss. 1927); Strickland v. Busby, 146 Miss. 649, 111 So. 133, 1927 Miss. LEXIS 173 (Miss. 1927).

Venue of suit in county of office of nonresident corporation, necessary defendant, will not be changed because citizen of another county is party thereto. Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874, 1927 Miss. LEXIS 280 (Miss. 1927).

The state may provide different rules as to venue between citizens and corporations provided such rule does not materially affect the liability of the defendant, and the provision with reference to change of venue to the county of the defendant’s residence applies only to citizens. Morrimac Veneer Co.V McCalip, 129 Miss. 671, 92 So. 817, 1922 Miss. LEXIS 80 (Miss. 1922).

The statute in so far as it provides for a change of venue in the case of a resident citizen but denies the right to a corporation does not violate the equal protection clause of the 14th Amendment. Morrimac Veneer Co.V McCalip, 129 Miss. 671, 92 So. 817, 1922 Miss. LEXIS 80 (Miss. 1922).

It was error to refuse a change of venue as to an action, not local, in which defendant was served with process from a county other than that of his residence. Cook v. Pitts, 114 Miss. 39, 74 So. 777, 1917 Miss. LEXIS 9 (Miss. 1917).

The right to a change of venue is not accorded a corporation. Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907, 1916 Miss. LEXIS 360 (Miss. 1916); Morrimac Veneer Co.V McCalip, 129 Miss. 671, 92 So. 817, 1922 Miss. LEXIS 80 (Miss. 1922); Nicholson v. Gulf, M. & N. R. Co., 177 Miss. 844, 172 So. 306, 1937 Miss. LEXIS 168 (Miss. 1937).

If the party entitled to a change of venue fails to apply therefor, the court may render judgment. Christian v. O'Neal, 46 Miss. 669, 1872 Miss. LEXIS 36 (Miss. 1872); Cain v. Simpson, 53 Miss. 521, 1876 Miss. LEXIS 107 (Miss. 1876).

The rule as to change of venue applies to an executor or administrator. McLeod v. Shelton & Minor, 42 Miss. 517, 1869 Miss. LEXIS 26 (Miss. 1869).

13. —Public officers.

It is reversible error for trial court to overrule motion for change of venue to official domicile made by commissioner of state highway patrol in mandamus proceeding brought in county other than his official domicil, where no case for relief is stated against patrolmen who were joined with commissioner as defendants for sole purpose of retaining venue in county in which proceeding is filed. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

A mandamus action by a county to compel the state highway commission to appraise and reimburse such county its proportionate value of a bridge constructed by Hancock and Harrison Counties, which had been taken over by the highway commission and made a part of United States Highway 90, was properly transferred to Hinds County, in which the commission had its permanent office. State ex rel. Cowan v. State Highway Com., 195 Miss. 657, 13 So. 2d 614, 1943 Miss. LEXIS 120 (Miss. 1943).

In action to recover damages for alleged tort against a sheriff (a nonresident of the county), his surety, a nonresident corporation, and certain resident garnishee defendants, the defendants were entitled to have the venue changed to the county of the sheriff’s residence, in view of the statute providing for the change of venue of an action against a public officer to the county of his residence upon his application, notwithstanding another provision that “all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be bound.” Holyfield v. State, 194 Miss. 91, 10 So. 2d 841, 1942 Miss. LEXIS 165 (Miss. 1942).

Purpose of 1926 amendment to venue statute giving public officer sued out of county of his residence the right to have venue changed to county of his residence was to guarantee to public officer the right to remove suit to county of his residence, notwithstanding that surety on his official bond might be found doing business in county where suit was originally filed. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

Statute giving public officer sued out of county of his residence the right to have venue changed to county of his residence held not to prevent full operation of statute providing for change of venue, or to confer any different right from that granted to any other Mississippi citizen sued on nonlocal action out of county of his residence. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

Change of venue of action for wrongful killing by deputy sheriffs, to county other than county of deputy sheriffs’ residence, held not error. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

Motion in justice court from which execution issued and circuit court to which cause was appealed to charge sheriff of another county and surety with sheriff’s failure to levy execution could not be transferred to circuit court of county of sheriff’s residence. Womack v. Richardson, 168 Miss. 347, 151 So. 173, 1933 Miss. LEXIS 209 (Miss. 1933).

Corporation or individual jointly sued with another in county in which joint defendant may be found cannot change venue to county of residence; statute authorizing change of venue to county of defendant’s residence, notwithstanding codefendant is subject to action in county, held applicable only to public officer; statute authorizing change of venue to county of defendant public officer’s residence, notwithstanding joinder of codefendant subject to action in county, held not discriminatory. Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 1930 Miss. LEXIS 238 (Miss. 1930), overruled, Vascoe v. Ford, 212 Miss. 370, 54 So. 2d 541, 1951 Miss. LEXIS 458 (Miss. 1951).

Statute held not to warrant change of venue to county of public officer’s residence in cause pending at its passage. State use of Thompson v. Cloud, 146 Miss. 642, 112 So. 19, 1927 Miss. LEXIS 237 (Miss. 1927).

Motions against sheriffs for failure to return executions are determinable in the court to which the execution is returnable, and a change of venue will not be granted to the county of the officer’s residence. Cox v. Ross, 56 Miss. 481, 1879 Miss. LEXIS 148 (Miss. 1879).

14. —Proceedings in rem.

Purchaser held not entitled to removal of proceeding to enforce purchase money lien on automobile seized in county of seller’s residence. Eaton v. Hattiesburg Auto Sales Co., 151 Miss. 211, 117 So. 534, 1928 Miss. LEXIS 298 (Miss. 1928).

The statute for change of venue does not apply in favor of a defendant in attachment brought in a county other than that of his residence, where jurisdiction has been secured by a levy on effects or debts of the defendant. Smith v. Mulhern, 57 Miss. 591, 1880 Miss. LEXIS 7 (Miss. 1880).

15. —Consent, effect of.

A suit in trespass quare clausum fregit cannot be removed by consent from one county to another. Wilkinson v. Jenkins, 77 Miss. 603, 27 So. 611 (Miss. 1900).

16. —Waiver.

Because the doctors waited three years to pursue their motion contesting venue under former Miss. Code Ann. §11-11-3, and in doing so, waiting until two weeks before the date set for trial, they waived their right to contest venue. Fredericks v. Malouf, 2011 Miss. LEXIS 131 (Miss. Mar. 3, 2011).

Where timely objection was not made, as specifically required by Code 1942, § 1433, venue was waived. Wofford v. Cities Service Oil Co., 236 So. 2d 743, 1970 Miss. LEXIS 1499 (Miss. 1970).

A defendant’s plea to the merits after the overruling of her motion for a change of venue to the county of her residence does not waive her right to the change. Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 1941 Miss. LEXIS 1 (Miss. 1941).

17. —Burden of proof.

A defendant seeking change of venue to the county of her residence, notwithstanding the joinder of a codefendant against whom, it was claimed, the plaintiff had no cause of action, had the burden of negativing the plaintiff’s allegations in that regard. Howard v. Ware, 192 Miss. 36, 3 So. 2d 830, 1941 Miss. LEXIS 1 (Miss. 1941).

18. Illustrative cases.

Neither of the first two venue options under the statute was applicable because no defendant resided in Mississippi, and since plaintiffs alleged that the defects that were designed into, manufactured, shipped, and sold to a limited liability company for their use occurred in Tennessee and Alabama, the third option under the venue statute also was not applicable; however, the accident that occurred in Laurel, MS, was a substantial event that caused injury and was therefore a permissible venue. Since a permissible venue existed, it was not proper for plaintiffs to select the county of residence of one of the beneficiary plaintiffs. Herman Grant Co. v. Washington, 214 So.3d 266, 2017 Miss. LEXIS 122 (Miss. 2017).

RESEARCH REFERENCES

ALR.

Lien as estate or interest in land within venue statute. 2 A.L.R.2d 1261.

Relationship between “residence” and “domicil” under venue statutes. 12 A.L.R.2d 757.

Venue of action for cutting, destruction, or damage of standing timber. 65 A.L.R.2d 1268.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Venue of civil libel action against newspaper or periodical. 15 A.L.R.3d 1249.

Place where corporation is doing business for purposes of state venue statute. 42 A.L.R.5th 221.

Venue of wrongful-death action. 58 A.L.R.5th 535.

Applicability of 28 USCS § 1391(e), providing for venue and process in civil suit against federal officer or employee for official conduct, to officer or employee no longer in government service or no longer serving government in capacity in which he acted. 48 A.L.R. Fed. 436.

What is the judicial district “in which the claim arose” for venue purposes under 28 USCS § 1391(a) and (b). 59 A.L.R. Fed. 320.

Am. Jur.

77 Am. Jur. 2d, Venue §§ 24 et seq., 26, 32 et seq.

CJS.

92A C.J.S., Venue §§ 75 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss. L.J. 49, March, 1985.

Tort Reform and the Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22 Miss. C. L. Rev. 9, Fall, 2002.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Now Open for Business: The Transformation of Mississippi’s Legal Climate, 24 Miss. C. L. Rev. 393, Spring, 2005.

Taming an Elephant: A Closer Look at Mass Tort Screening and the Impact of Mississippi Tort Reforms, 26 Miss. C. L. Rev. 253, 2006/2007.

Practice References.

4 Am Law Prod Liab 3d, Venue; Forum Non Conveniens § 49:1.

§§ 11-11-5 and 11-11-7. Repealed.

Repealed by Laws, 2002, 3rd Ex. Sess., ch. 4, § 2, eff from and after passage (approved January 1, 2003).

11-11-5. [Codes, 1871, § 2410; 1880, § 1499; 1892, § 651; 1906, 708; Hemingway’s 1917, § 487; 1930, § 496; 1942, § 1434; Laws, 1926, ch. 148; 1930, ch. 121; Laws, 1979, ch. 319, § 1; Laws, 1992, ch. 301, § 1, eff from and after July 1, 1992, and applicable only to causes of action accruing on or after July 1, 1992.]

11-11-7. [Codes, 1871, § 2410; 1880, § 1500; 1892, § 652; 1906, § 709; Hemingway’s 1917, § 488; 1930, § 497; 1942, § 1435; Laws, 1916, ch. 201; Laws, 1971, ch. 349, § 1, eff from and after passage (approved March 12, 1971).]

Editor’s Notes —

Former §11-11-5 set rule on venue for actions against railroad and other companies.

Former §11-11-7 regulated actions against insurance companies.

§ 11-11-9. Actions against executors.

Executors, administrators or guardians, appointed in this state and residing out of it, may be sued in the county of their appointment and may be made parties to such suit so as to authorize judgment against them by publication of summons made as provided for in the case of absent and nonresident defendants.

Actions against resident executors, administrators or guardians may be brought in the county or judicial district of their appointment.

HISTORY: Codes, 1880, § 1520; 1892, § 653; 1906, § 710; Hemingway’s 1917, § 489; 1930, § 498; 1942, § 1436; Laws, 1971, ch. 486, § 1, eff from and after passage (approved March 31, 1971).

Cross References —

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1436] applies where a nonresident executor, administrator, or guardian has to be summoned by publication. A suit will lie in any county where service of process may be had. Williams v. Stewart, 79 Miss. 46, 30 So. 1, 1901 Miss. LEXIS 27 (Miss. 1901).

RESEARCH REFERENCES

ALR.

Place of personal representative’s appointment as venue of action against him in his official capacity. 93 A.L.R.2d 1199.

Capacity of guardian to sue or to be sued outside state where appointed. 94 A.L.R.2d 162.

Am. Jur.

77 Am. Jur. 2d, Venue § 21.

CJS.

92A C.J.S., Venue § 56.

§§ 11-11-11 and 11-11-13. Repealed.

Repealed by Laws, 2002, 3rd Ex. Sess., ch. 4, § 2, eff from and after passage (approved January 1, 2003).

§11-11-11. [Codes, 1942, § 1437; Laws, 1940, ch. 246; Laws, 1964, ch. 320, § 1; Laws, 1968, ch. 330, § 1; Laws, 1971, ch. 431, § 1, eff from and after passage (approved March 24, 1971).]

§11-11-13. [Codes, 1942, § 9352-61; Laws, 1938, chs. 148, 345; Laws, 1946, ch. 266, § 61; Laws, 1952, ch. 265, § 1; Laws, 1954, ch. 299, §§ 1, 2; Laws, 1958, ch. 262; Laws, 1964, ch. 376, §§ 1-4, eff from and after passage (approved April 22, 1964).]

Editor’s Notes —

Former §11-11-11 regulated venue selection in actions for damages against nonresidents.

Former §11-11-13 regulated venue selection in actions for damages against nonresident motorists.

RESEARCH REFERENCES

Law Reviews.

Taming an Elephant: A Closer Look at Mass Tort Screening and the Impact of Mississippi Tort Reforms, 26 Miss. C. L. Rev. 253, 2006/2007.

§ 11-11-15. Actions against State Board of Health or State Board of Medical Licensure.

The venue of actions against the Mississippi State Board of Health wherein said board is a defendant, or the State Board of Medical Licensure wherein said board is a defendant, shall be in Hinds County.

HISTORY: Codes, 1942, § 7096-01; Laws, 1946, ch. 483, § 1; Laws, 1980, ch. 458, § 32, eff from and after July 1, 1980.

Cross References —

State board of medical licensure, see §73-43-1 et seq.

Venue, see Miss. R. Civ. P. 82.

§ 11-11-17. Where court has jurisdiction of subject matter but not venue.

Where an action is brought in any justice court of this state, of which the court in which it is brought has jurisdiction of the subject matter, but lacks venue jurisdiction, such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred, together with all prepaid costs remaining after the court in which the action was originally brought has deducted the costs incurred in that court, to the venue to which it belongs.

HISTORY: Codes, 1942, § 1441; Laws, 1940, ch. 233; Laws, 1981, ch. 471, § 3; Laws, 1982, ch. 423, § 3; Laws, 1989, ch. 404, § 1; Laws, 1991, ch. 573, § 23, eff from and after July 1, 1991.

Cross References —

Civil jurisdiction of justice courts, see §9-11-9.

Proper venue of civil actions in circuit court and transferred to proper venue, see §11-11-3.

Jurisdiction of crimes generally, see §99-11-1.

Venue of criminal offenses, see §99-11-3.

Criminal jurisdiction of justice courts, see §99-33-1.

Venue, see Miss. R. Civ. P. 82.

Rule governing change of venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

Trial court did not err by dismissing a football player’s case without prejudice instead of transferring it to the appropriate venue pursuant to the statute because the statute was inapposite since it applied only to justice courts. Ramsey v. Auburn Univ., 191 So.3d 102, 2016 Miss. LEXIS 82 (Miss. 2016).

Pharmaceutical companies argued that the plaintiffs took the prescription drug at different times, under different labels and warnings and had different pre-existing conditions. Because of those differences, said companies sought to have plaintiffs’ joinder in Jefferson County severed, alleging that the inquiries into alleged defective design, failure to warn, breach of warranty and misrepresentation would be wholly distinct in each plaintiff’s case; the Mississippi Supreme Court concluded a jury could well be overwhelmed by the 30 separate fact patterns that were offered to prove medical malpractice, affirmed the trial court’s decision to sever plaintiffs’ claims, and affirmed the trial court’s decision allowing for transfer of the claims of those plaintiffs without jurisdiction in Jefferson County to the court or courts of plaintiffs’ counsel’s choosing. Culbert v. Johnson & Johnson, 883 So. 2d 550, 2004 Miss. LEXIS 1197 (Miss. 2004).

The chancery court of Hinds County should have transferred a separate maintenance suit to the Rankin County chancery court, even though the defendant was temporarily residing in Hinds County where he was found for the service of process, where the defendant owned a home in Rankin County which he still considered to be his residence, he was registered to vote and did vote in Rankin County, and he had a homestead exemption on a home in Rankin County; the mere fact that the defendant was not actually present in his home did not mean that it was not his residence. Dunn v. Dunn, 577 So. 2d 378, 1991 Miss. LEXIS 117 (Miss. 1991).

This section [Code 1942, § 1441] applies only where the trial court lacks venue jurisdiction; and does not require a change of venue to the county of the nonresident defendant upon dismissal of the suit, after a settlement, as against the resident defendant. New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 146 So. 2d 882, 1962 Miss. LEXIS 544 (Miss. 1962).

A suit for alimony pendente lite, separate maintenance, and attorneys’ fees which was brought in Tate County, the residence of the wife, should have been transferred to the chancery court of Alcorn County, where the evidence established that the latter county was the residence of the husband and the husband had made timely objection to the venue. Trainum v. Trainum, 234 Miss. 448, 105 So. 2d 628, 1958 Miss. LEXIS 516 (Miss. 1958).

Where defendant in a replevin action not only submitted the jurisdiction of the court by participating in the trial, but also invoked the jurisdiction of the court by filing a counterclaim for damages, this constituted a waiver of any objection to the venue. King v. Ainsworth, 225 Miss. 248, 83 So. 2d 97, 1955 Miss. LEXIS 577 (Miss. 1955).

This is a general statute without application to the statutes on the special or particular subject of divorce. Stark v. Stark, 755 So. 2d 31, 1999 Miss. App. LEXIS 371 (Miss. Ct. App. 1999); Price v. Price, 202 Miss. 268, 32 So. 2d 124, 1947 Miss. LEXIS 270 (Miss. 1947); Cruse v. Cruse, 202 Miss. 497, 32 So. 2d 355, 1947 Miss. LEXIS 305 (Miss. 1947).

A mandamus action by a county to compel the state highway commission to appraise and reimburse such county its proportionate value of a bridge constructed by Hancock and Harrison counties, which had been taken over by the highway commission and made a part of United States Highway 90, was properly transferred to Hinds County, in which the commission had its permanent office. State ex rel. Cowan v. State Highway Com., 195 Miss. 657, 13 So. 2d 614, 1943 Miss. LEXIS 120 (Miss. 1943).

OPINIONS OF THE ATTORNEY GENERAL

An individual may be instructed prior to filing an action that the county justice court might lack proper jurisdiction, but if the plaintiff still persists in filing the action in that court, the clerk should file the action and collect the proper fees; the justice court judge may, prior to issuing a summons, order the case dismissed for lack of jurisdiction and, in such a case, the plaintiff would not be entitled to his filing fee but would be entitled to refund of the constable’s fee. Shirley, Nov. 16, 2001, A.G. Op. #01-0697.

RESEARCH REFERENCES

Am. Jur.

77 Am. Jur. 2d, Venue § 50.

Stipulation for action to be transferred to another county, 24 Am. Jur. Pl & Pr Forms (Rev), Venue, Form 222.

20 Am. Jur. Pl & Pr Forms, Venue, Form 20:1272 (Stipulation for action to be transferred to proper county).

CJS.

92A C.J.S., Venue §§ 141, 142, 144-180.

Law Reviews.

1985 Mississippi Supreme Court Review – Civil Procedure. 55 Miss. L. J. 755, December 1985.

Abbott, Venue of transitory actions against resident individual citizens in Mississippi – Statutory revision could remove needless complexity. 58 Miss. L. J. 1, Spring, 1988.

§ 11-11-19. Where brought if judge interested.

If the judge of the court be a party to or interested in any suit about to be commenced, the suit may be instituted in an adjacent district, and the process may be issued to and served in any county where the defendant may be found; or the suit may be brought as if the judge were not a party to or interested in it.

HISTORY: Codes, Hutchinson’s 1848, ch. 58, art. 1 (173); 1857, ch. 61, art. 34; 1871, § 524; 1880, § 1501; 1892, § 654; 1906, § 711; Hemingway’s 1917, § 490; 1930, § 499; 1942, § 1442.

Cross References —

When judge must not preside on trial of cause, see §9-1-11.

Venue, see Miss. R. Civ. P. 82.

RESEARCH REFERENCES

ALR.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Am. Jur.

77 Am. Jur. 2d, Venue § 50.

CJS.

92A C.J.S., Venue §§ 161-168.

Change of Venue

§ 11-11-51. Grounds for change of venue, generally.

When either party to any civil action in the circuit court shall desire to change the venue, he shall present to the court, or the judge of the district, a petition setting forth under oath that he has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. On reasonable notice in writing to the adverse party of the time and place of making the application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear the parties and examine the evidence which either may adduce, and may award a change of venue to some convenient county where an impartial trial may be had, and, if practicable, in which the circuit court may next be held. If made in vacation, the order shall be indorsed on the petition and directed to the clerk, who shall file the same with the papers in the suit.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 2 (1); 1857, ch. 61, art. 122; 1871, § 719; 1880, § 1502; 1892, § 655; 1906, § 712; Hemingway’s 1917, § 491; 1930, § 500; 1942, § 1443.

Cross References —

Change of venue in jury cases in chancery court practice, see §11-5-5.

Change of venue of garnishment proceedings, see §11-35-49.

Change of venue in criminal prosecutions, see §99-15-35.

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

2. Power and duty of court.

3. Specific grounds.

4. —Prejudice.

5. Forum non conveniens.

6. Other grounds.

1. In general.

While the state supreme court held that Miss. Code Ann. §11-11-51 did not require a company to produce an affidavit from a county resident in its motion to change venue stating that the company could not receive a fair trial, the denial of the motion was affirmed as no evidence existed that the company could not receive a fair trial. Bayer Corp. v. Reed, 932 So. 2d 786, 2006 Miss. LEXIS 355 (Miss. 2006).

Petition for change of venue was not required to be signed by corporate defendant; signature of defendant’s attorney was sufficient. Beech v. Leaf River Forest Prods., 691 So. 2d 446, 1997 Miss. LEXIS 86 (Miss. 1997).

Circuit Court acted within its lawful discretion in denying railroad’s motion for change of venue; §11-11-5 establishes that venue is proper in county in which plaintiff resides, and that was county where venue was set; grounds that railroad could not obtain fair trial in county where venue was set was rejected where railroad failed to show undue influence of adverse party or prejudice existing in public mind or some other reason. Maxwell v. Illinois C. G. Railroad, 513 So. 2d 901, 1987 Miss. LEXIS 2793 (Miss. 1987).

The purpose of this section [Code 1942, § 1443] is to guarantee the litigant’s rights to a fair trial. Mississippi State Highway Com. v. Rogers, 240 Miss. 529, 128 So. 2d 353, 1961 Miss. LEXIS 483 (Miss. 1961).

Change of venue statute was intended to provide method by which fair and impartial trial could be obtained whenever on account of undue influence of adverse party, prejudice in public mind, or other sufficient cause, a fair and impartial trial could not be obtained in county in which venue was originally fixed. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

Where a county is the defendant, this section [Code 1942, § 1443] equally applies. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 1922 Miss. LEXIS 106 (Miss. 1922).

The statute applies only to civil actions begun by ordinary summons and not to attachments. Baum v. Burnes, 66 Miss. 124, 5 So. 697, 1888 Miss. LEXIS 75 (Miss. 1888).

An affidavit for a change of venue is not a part of the record unless made so by bill of exceptions. Grant v. Planters' Bank, 5 Miss. 326, 1840 Miss. LEXIS 16 (Miss. 1840).

2. Power and duty of court.

Application for change of venue is addressed to discretion of trial judge, and ruling thereon will not be disturbed on appeal unless it clearly appears that there has been abuse of discretion or that discretion has not been justly and properly exercised under circumstances of case. Beech v. Leaf River Forest Prods., 691 So. 2d 446, 1997 Miss. LEXIS 86 (Miss. 1997).

Change of venue motion was timely even though it was filed nearly two years after commencement of action, where motion was filed three months before trial and was based in part on pretrial publicity. Beech v. Leaf River Forest Prods., 691 So. 2d 446, 1997 Miss. LEXIS 86 (Miss. 1997).

An application for change of venue is addressed to the discretion of the trial judge, and his ruling thereon will not be disturbed on appeal save for abuse of or failure to properly exercise discretion. Mississippi State Highway Com. v. Rogers, 240 Miss. 529, 128 So. 2d 353, 1961 Miss. LEXIS 483 (Miss. 1961).

Court should grant change of venue whenever conditions arise which, by virtue of change of venue statute, authorize change of venue. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

Where there is testimony supporting the judgment of the court ordering a change of venue he may grant such change. Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470, 1924 Miss. LEXIS 233 (Miss. 1924).

On an application for a change of venue in term-time, an order of court is necessary. Saunders v. Morse, 4 Miss. 101, 1838 Miss. LEXIS 22 (Miss. 1838).

3. Specific grounds.

4. —Prejudice.

In a negligence action, the subject newspaper was the primary newspaper in the county and also had a large circulation outside the county, and the front page article went into graphic detail, describing the mother’s bleeding and her terror as she waited for emergency care and the article went on to allege that the hospital was responsible for the newborn child’s severe brain damage. The article also explained specific acts of negligence, as claimed by the parents and cited the substance of certain deposition testimony given by hospital personnel; the appellate court held there existed a substantial likelihood of material prejudice against the hospital and that the trial court erred in denying its motion for a change of venue. River Oaks Health Sys. v. Steptoe-Finley, 2004 Miss. LEXIS 1503 (Miss. July 13, 2004).

In a products liability case arising from use of a prescription drug, the trial court abused its discretion by improperly changing venue to Claiborne County because the record was replete with evidence that defendant drug company sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, Claiborne County was not a proper venue in which a fair trial could be conducted. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 2004 Miss. LEXIS 494 (Miss. 2004), modified, 2004 Miss. LEXIS 1002 (Miss. Aug. 5, 2004).

Paper mill presented sufficient evidence in form of affidavits, depositions, newspaper articles, videotapes of news stories, and other exhibits to support petition for change of venue on basis of excessive pretrial publicity and citizen bias created by large number of potential jurors involved in similar dioxin-related litigation against mill. Beech v. Leaf River Forest Prods., 691 So. 2d 446, 1997 Miss. LEXIS 86 (Miss. 1997).

The Highway Commission is entitled to a change in the venue of a proceeding to condemn property for highway purposes where two previous jury verdicts in the case, and verdicts in other cases in the county, had been set aside as excessive. Mississippi State Highway Com. v. Rogers, 240 Miss. 529, 128 So. 2d 353, 1961 Miss. LEXIS 483 (Miss. 1961).

Change of venue of action for wrongful killing by deputy sheriffs, to county other than county of deputy sheriffs’ residence, held not error. Tucker v. Gurley, 176 Miss. 708, 170 So. 230, 1936 Miss. LEXIS 163 (Miss. 1936).

5. Forum non conveniens.

Miss. R. Civ. P. 82(e) and Miss. Code Ann. §11-11-3(4)(a) required the transfer of a case brought by a resident of Claiborne County, Mississippi, against a doctor, who resided in Warren County, Mississippi, and two nonresident defendants to a county of proper venue–i.e., Warren County–where the reason for the transfer was the inability to seat an impartial jury; Warren County was the only county of appropriate venue because it was the only county in Mississippi in which a defendant (the doctor) resided. Thus, it was not necessary to determine whether such a transfer would have been “convenient” pursuant to Miss. Code Ann. §11-11-51. Namihira v. Bailey, 891 So. 2d 831, 2005 Miss. LEXIS 38 (Miss. 2005).

The application of intrastate forum non conveniens is invalid where the trial court is faced with a choice of venue between two Mississippi counties. Salts v. Gulf Nat'l Life Ins. Co., 743 So. 2d 371, 1999 Miss. LEXIS 261 (Miss. 1999).

6. Other grounds.

In an action for malicious damage to a physician’s reputation, the defendant medical center and radiology clinic were not entitled to a change of venue to the county in which they were located where they argued that medical care in the county in which they were located would be crippled if they were forced to defend in county in which the plaintiff commenced the action and that they would be required to incur higher costs of obtaining the attendance of unwilling witnesses to testify since they failed to show bias under the statute and failed to prove that the plaintiff’s choice of venue would have denied them a fair and impartial trial. Pisharodi v. Golden Triangle Regional Med. Ctr., 735 So. 2d 353, 1999 Miss. LEXIS 140 (Miss. 1999).

RESEARCH REFERENCES

ALR.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Prohibition as appropriate remedy to restrain civil action for lack of venue. 93 A.L.R.2d 882.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

Change of venue as justified by fact that large number of inhabitants of local jurisdiction have interest adverse to party to state civil action. 10 A.L.R.4th 1046.

Construction and application of venue provisions of Miller Act (40 USCS § 270b(b)). 140 A.L.R. Fed. 615.

Am. Jur.

77 Am. Jur. 2d, Venue §§ 52, 53.

24 Am. Jur. Pl & Pr Forms (Rev), Venue Forms 251-257 (Change of venue to promote the convenience of witnesses and ends of justice).

24 Am. Jur. Pl & Pr Forms (Rev), Venue, Forms 241, 242 (Change of venue on grounds of disqualification, bias, or prejudice of trial judge).

24A Am. Jur. Pl & Pr Forms (Rev), Venue, Form 291.2 (Motion-For change of venue-To county where real property subject to litigation is located).

24 Am. Jur. Pl & Pr Forms (Rev), Venue, Forms 231-234 (Change of venue on grounds of inability to obtain fair trial).

20 Am. Jur. Pl & Pr Forms, Venue, Forms 20:1211-20:1224 (Demand for and notice of motion for change of venue).

3 Am. Jur. Trials, Selecting the Forum-Defendant’s Position, §§ 19, 20.

CJS.

92A C.J.S., Venue §§ 169-176, 203, 213, 216, 218.

§ 11-11-53. Transmission of papers.

  1. When an order for a change of venue shall be made, the clerk shall make out a descriptive list of all the papers in the cause and a certified copy of all orders and judgments made therein, with their dates, and a bill of the costs that have accrued. The said clerk shall carefully and safely put all the papers, with a copy of the descriptive list, and a copy of the orders and judgments, and the bill of costs, into a package, to be well covered and sealed up, and directed to the clerk of the court in which the suit is ordered removed. The clerk shall, if not otherwise directed by the judge, take the receipt of the party obtaining the change of venue for the papers contained on said list, and deliver the package to said party, to be carried to the clerk of the court to whom it may be directed, or it may be sent by mail, postage paid, or by express, the clerk taking proper receipt therefor.
  2. In Harrison County, a county having two judicial districts, in all civil proceedings, or matters, where the venue thereof shall be changed, or the trial transferred or removed from one district to the other, the original papers, together with certified copies of all motions, orders and decrees made and entered in such suits, proceedings, matters and cases, shall be transmitted, transferred and filed by the proper clerk to and in his office at the proper place to which such change of venue or transfer shall be made.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 2 (4); 1857, ch. 61, art. 123; 1871, § 720; 1880, § 1503; 1892, § 656; 1906, § 713; Hemingway’s 1917, § 492; 1930, § 501; 1942, §§ 1444, 2910-18; Laws, 1962, ch. 257, § 18, eff from and after passage (approved June 1, 1962).

Cross References —

Another section derived from same 1942 code section, see §99-11-39.

Transmission of papers and the like following an order changing the venue in a criminal case, see §99-15-37.

Venue, see Miss. R. Civ. P. 82.

RESEARCH REFERENCES

ALR.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

Am. Jur.

77 Am. Jur. 2d, Venue § 60.

CJS.

92A C.J.S., Venue §§ 282, 298–300.

§ 11-11-55. Receipt of papers and entry of cause.

The clerk to whom the papers may be transmitted shall open the package and compare the papers with the descriptive list, and shall give the person delivering the same, if demanded, a receipt therefor. He shall then enter the cause on his docket as if it had been commenced in the court of which he is clerk, and issue subpoena for witnesses as in other cases.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 2 (5); 1857, ch. 61, art. 124; 1871, § 721; 1880, § 1504; 1892, § 657; 1906, § 714; Hemingway’s 1917, § 493; 1930, § 502; 1942, § 1445.

Cross References —

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. In general.

Where action, brought in wrong county, was transferred to the proper county, the clerk of court of the latter county was without the right to refuse to docket the cause until security for costs had been given, where plaintiff was not a nonresident and was not shown to be insolvent, the clerk’s right to obtain security for cost in such case being limited to that prescribed as to suit already commenced. Neely v. Martin, 193 Miss. 856, 11 So. 2d 435, 1943 Miss. LEXIS 13 (Miss. 1943).

RESEARCH REFERENCES

ALR.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

Am. Jur.

77 Am. Jur. 2d, Venue § 60.

CJS.

92A C.J.S., Venue §§ 282, 298–300.

§ 11-11-57. Venue changed but once.

A civil suit shall not be removed more than once, or in any other manner than as prescribed, and in no case where it shall appear that there has been unnecessary delay or negligence in making the application.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 2 (6); 1857, ch. 61, art. 125; 1871, § 722; 1880, § 1505; 1892, § 658; 1906, § 715; Hemingway’s 1917, § 494; 1930, § 503; 1942, § 1446.

Cross References —

Venue, see Miss. R. Civ. P. 82.

JUDICIAL DECISIONS

1. Change of venue.

In a products liability case arising from use of a prescription drug, the trial court abused its discretion by improperly changing venue to Claiborne County because the record was replete with evidence that defendant drug company had sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, Claiborne County was not a proper venue in which a fair trial could be conducted. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 2004 Miss. LEXIS 494 (Miss. 2004), modified, 2004 Miss. LEXIS 1002 (Miss. Aug. 5, 2004).

RESEARCH REFERENCES

ALR.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

When does period for filing petition for removal of civil action from state court to federal district court begin to run under 28 USCS § 1446(b). 139 A.L.R. Fed. 331.

Am. Jur.

77 Am. Jur. 2d, Venue § 46.

CJS.

92A C.J.S., Venue §§ 152, 280, 281, 302 et seq.

§ 11-11-59. Applicability of provisions to districts in county.

The provisions for a change of venue shall be applied in those counties where there are two places of holding circuit courts in the same manner as if each district were a separate county.

HISTORY: Codes, 1871, § 723; 1880, § 1506; 1892, § 659; 1906, § 716; Hemingway’s 1917, § 495; 1930, § 504; 1942, § 1447.

Cross References —

Venue, see Miss. R. Civ. P. 82.

RESEARCH REFERENCES

ALR.

Choice of venue to which transfer is to be had, where change is sought because of local prejudice. 50 A.L.R.3d 760.

Chapter 13. Injunctions

§ 11-13-1. Evidence of complainant’s equity and of truth of allegations required.

An injunction shall not be granted unless the judge or chancellor shall be satisfied of the complainant’s equity and of the truth of the allegations of the bill, by oath or other means.

HISTORY: Codes, 1857, ch. 62, art. 64; 1871, § 1043; 1880, § 1903; 1892, § 557; 1906, § 608; Hemingway’s 1917, § 368; 1930, § 415; 1942, § 1335.

Cross References —

Power of courts to grant injunctions, see §9-1-19.

Authority of the court to punish for violation of injunction, see §9-5-87.

Injunction to prohibit the selling of tobacco, see §27-69-61.

Injunction to prohibit the operation of a rendering plant, see §41-51-33.

Injunction to prohibit unlicensed practice of profession, see §§73-51-1,73-51-3,73-51-5.

Restraining wrongful disposition of collateral by secured party under Uniform Commercial Code, see §75-9-507.

Injunction for violation of weights and measures law of 1964, see §75-27-61.

Injunction against certain violations of the business tender offer law, see §75-72-119.

Injunctive remedy for violations relating to legal expense insurance plans, see §83-49-31.

Injunctions, see Miss. R. Civ. P. 65.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. Right to and propriety of injunction in general.

2. —Existence and adequacy of other remedies.

3. —Irreparable injury.

4. —Multiplicity of suits.

5. —Laches.

6. Mandatory injunction.

7. Temporary injunction.

8. Restraining order.

9. Persons entitled to relief.

10. Subjects of injunctive relief.

11. —Property rights.

12. —Elections.

13. —Nuisances.

14. —Taxes.

15. —Criminal prosecutions.

16. —Miscellaneous.

17. Pleading.

18. Judgment or decree.

1. Right to and propriety of injunction in general.

State court may prevent resident under its jurisdiction from doing inequity by maintaining federal court suit in distant jurisdiction when convenient and suitable forum is at resident’s doorstep if matter of venue is not covered by act of Congress. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Neither Norris-LaGuardia Act, 29 USCS § 101, nor National Labor Relations Act, 29 USCS § 151, prohibits institution by employer involved in labor dispute of proceeding in state court for injunction against unlawful acts of labor unions and their members. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Sureties on tenant’s replevin bond cannot enjoin judgment thereon in landlord’s favor, where they have acquired the agricultural products subject to landlord’s claim for rent and make no offer to pay him, even if the judgment be void, as “he who seeks equity must do equity.” Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583, 1910 Miss. LEXIS 248 (Miss. 1910).

Rights already lost and wrongs already committed cannot be enjoined. McDaniel v. Hurt, 92 Miss. 197, 41 So. 381, 190 Miss. LEXIS 3 (Miss. 1906).

One seeking relief by injunction against a judgment at law rendered without notice, must show not only that the judgment was void but that he has a good defense to the suit. Newman v. Taylor, 69 Miss. 670, 13 So. 831, 1892 Miss. LEXIS 41 (Miss. 1892).

2. —Existence and adequacy of other remedies.

Inadequacy of the remedy at law is the basis upon which the power of injunction is exercised; an injunction will not issue when the complainants have a complete and adequate remedy by appeal. Thus, a county supervisor’s request for injunctive relief from the board of supervisor’s ruling that the county supervisor was no longer a resident of the electing district and declaring the office vacant, was properly denied since the statutory method of appeal to the circuit court under §11-51-75 afforded the county supervisor a plain, adequate, speedy, and complete remedy for a judicial determination of his right. Moore v. Sanders, 558 So. 2d 1383, 1990 Miss. LEXIS 154 (Miss. 1990).

In an action to enjoin the use of defendant’s house as a beauty parlor, allegedly in violation of a protective covenant, it was no defense that the plaintiffs had not exhausted their administrative remedies in that they had not followed their prior objection to the defendant’s successful application to the county board of supervisors for a use permit to its ultimate disposition, since the litigation arose from personal rights derived from a protective covenant, and a county board of supervisors is without authority, by the issuance of a use permit, to change or alter a solemn personal contract with regard to the use of land. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

Bill for injunction to restrain retailers from selling products of complainant below prices fixed by complainant, as manufacturer of such products, in its trade contracts entered into with certain local retail dealers in conformity with provisions of § 1108, Code of 1942, known as “Fair Trade Act,” which contains all essential averments to entitle complainant to benefit of provisions of that act and to enforcement of its trade contracts, and also discloses that action at law for damages would not afford as plain, adequate or complete a relief as would be afforded by injunctive relief, states good cause of action for injunctive relief. W. A. Sheaffer Pen Co. v. Barrett, 209 Miss. 1, 45 So. 2d 838, 1950 Miss. LEXIS 357 (Miss. 1950).

Fact that acts against which injunction is sought are punishable criminally does not constitute adequate remedy so as to bar equitable relief, although equitable action is never predicated on prevention of crime. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Bill to enjoin appeal from tax assessment not maintainable if remedy is defensive merely and equally available at law. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Validity of appeal from tax assessment may be determined in proceeding at law and is not ground for injunction. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Mere fact that defense to appeal from tax assessment will entail expense not ground for injunction. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Creditor’s bill attacking conveyance as fraudulent and for amount due cannot be enjoined by subsequent action where rights of defendant in original action can be fully protected by cross-bill. Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681, 1924 Miss. LEXIS 26 (Miss. 1924).

Defendant sued at law and having only legal defense must make his defense at law. International Harvester Co. v. V. P. Still & Son, 98 Miss. 127, 53 So. 394, 1910 Miss. LEXIS 41 (Miss. 1910).

Judgment creditor cannot be enjoined from garnishing wages of debtor, though the same are exempt and debtor’s employer has rule that employees will be discharged if their wages are garnished. Sturges v. Jackson, 88 Miss. 508, 40 So. 547, 1906 Miss. LEXIS 118 (Miss. 1906).

Debtor whose wages are exempt, having adequate remedy at law on indemnity bond given sheriff or sheriff’s official bond, cannot enjoin garnishment proceedings. Sturges v. Jackson, 88 Miss. 508, 40 So. 547, 1906 Miss. LEXIS 118 (Miss. 1906).

Suit to enjoin will not lie where ground is available in defense of the action. Larson v. Larson, 82 Miss. 116, 33 So. 717, 1903 Miss. LEXIS 104 (Miss. 1903); International Harvester Co. v. V. P. Still & Son, 98 Miss. 127, 53 So. 394, 1910 Miss. LEXIS 41 (Miss. 1910).

An injunction will not be granted against a judgment at law where relief can be had by petition to the circuit court for a supersedeas of the execution. Ricks v. Richardson, 70 Miss. 424, 11 So. 935, 1892 Miss. LEXIS 81 (Miss. 1892).

3. —Irreparable injury.

The chancery court had full authority to grant injunctive relief wholly absent any showing of irreparable harm where a developer had ignored a county subdivision ordinance. Implicit in land use regulations enacted for the benefit of the public is that substantial violations, per se, cause irreparable harm. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

Right to injunctive relief is basic ground of jurisdiction of court of equity, particularly when it comes to enjoining repeated and continuing trespass to property, where actions at law would entail multiplicity of suits, and where damages would be irreparable. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Injunction not granted on ex parte application without notice except in cases of greatest emergency and to prevent irreparable injury. Glover v. Falls, 120 Miss. 201, 82 So. 4, 1919 Miss. LEXIS 78 (Miss. 1919).

Taxpayers objecting to submission of legislative act to referendum on the ground of invalidity of referendum law do not suffer irreparable injury entitling them to an injunction. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

4. —Multiplicity of suits.

Right to injunctive relief is basic ground of jurisdiction of court of equity, particularly when it comes to enjoining repeated and continuing trespass to property, where actions at law would entail multiplicity of suits, and where damages would be irreparable. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Equity may interfere to prevent multiplicity of suits where injury is continuing in effect. Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559, 1910 Miss. LEXIS 1 (Miss. 1910).

Bill to prevent multiplicity of suits does not lie unless same legal questions and practically the same facts are involved, and complainant has good legal or equitable defense to them. Gulf Compress Co. v. Wooten Cotton Co., 98 Miss. 651, 54 So. 86, 1910 Miss. LEXIS 106 (Miss. 1910).

Where defendant in ejectment has equitable defense he may enjoin its prosecution, and his legal defenses may be set up in equity, thus preventing a multiplicity of suits. Butler v. Scottish-American Mortg. Co., 93 Miss. 215, 46 So. 829, 1908 Miss. LEXIS 110 (Miss. 1908).

A number of plaintiffs separately suing the same defendant in actions of trespass, the defendant’s liability depending upon the same facts, and the act complained of being a constantly recurring one, may be enjoined and their cases consolidated to prevent a multiplicity of suits. Illinois C. R. Co. v. Garrison, 81 Miss. 257, 32 So. 996, 1902 Miss. LEXIS 136 (Miss. 1902).

Separate actions to recover damages against the complainant where the plaintiffs have no common interest except in the questions of law and facts involved, and where they could not be proceeded against by complainant separately, will not be enjoined. Tribbette v. Illinois C. R. Co., 70 Miss. 182, 12 So. 32, 1892 Miss. LEXIS 87 (Miss. 1892).

5. —Laches.

In an action to enjoin the use of a house as a beauty parlor, allegedly in violation of a protective covenant, where the defendant had gained financial benefit from such use of her house for six years prior to the commencement of the suit, she was not entitled to invoke the doctrine of laches since a fundamental rule of the doctrine of laches is that the person who seeks to invoke it must first establish that the delay has resulted to his injury and that it would be inequitable to sustain the suit. Sullivan v. McCallum, 231 So. 2d 801, 1970 Miss. LEXIS 1612 (Miss. 1970).

An injunction against use of premises as a tea room and gift shop, contrary to a restriction against commercial use in the proprietor’s and her previous lessor’s deed, was properly denied where the proprietor had, without objection from any owners of other lots in the addition, conducted such business on the premises as a lessee for six years before purchasing the property. Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 26 So. 2d 356, 1946 Miss. LEXIS 222 (Miss. 1946).

Complainant barred by laches from restraining defendant using its name, emblem, and insignia. Supreme Lodge K. P. v. Knights of Pythias, 102 Miss. 280, 59 So. 88, 1912 Miss. LEXIS 54 (Miss. 1912).

6. Mandatory injunction.

A mandatory injunction must be specific and spell out exactly what the parties are to do or refrain from doing. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

Where the complainants, whose home was on the lot adjoining the defendants’ lot, charged that the defendants violated front set-back line restrictions by approximately 20 feet in the construction of a home, but had failed to object to the violation during construction until the foundation slab had been poured and the house had been roughed in, and failed to show such great damage or irreparable injury as to require the issuance of a mandatory injunction, the court’s failure to grant a request for a mandatory injunction, requiring instead that complainants accept damages in lieu of injunction, was not an abuse of discretion, the mandatory injunction being an extraordinary remedial process which will not be issued in doubtful cases. Pattillo v. Bridges, 247 So. 2d 811, 1971 Miss. LEXIS 1454 (Miss. 1971).

Mandatory injunction compelling plaintiff’s reinstatement in credit union and retention of his deposit was granted where bylaw amendment permitting expulsion when depositor ceases to be an employee was invalid, because no quorum was present and articles permitted expulsion only for cause, notwithstanding withdrawal from defendant’s employment. Hall v. Ingalls Employees Credit Union, 206 Miss. 104, 39 So. 2d 774, 1949 Miss. LEXIS 246 (Miss. 1949).

Mandatory injunction should not be granted without notice unless of unquestionable propriety. Pearman v. Wiggins, 103 Miss. 4, 60 So. 1, 1912 Miss. LEXIS 133 (Miss. 1912); Montgomery v. Hollingsworth, 127 Miss. 346, 90 So. 79, 1921 Miss. LEXIS 235 (Miss. 1921).

Mandatory injunction will lie to require creditor who owned a judgment and a trust deed covering exempt and nonexempt property of his debtor to first exhaust the nonexempt property before resorting to exempt property. Hays v. Barlow, 98 Miss. 487, 54 So. 2, 1910 Miss. LEXIS 88 (Miss. 1910).

A mandatory injunction should not be granted unless there be no reasonable doubt of its propriety, and it is safer to first hear both sides. Gulf Coast Ice Mfg. Co. v. Bowers, 80 Miss. 570, 32 So. 113, 1902 Miss. LEXIS 297 (Miss. 1902).

7. Temporary injunction.

The circumstances in which a preliminary injunction may be granted are not prescribed by the Rules of Civil Procedure, but remain a matter of the trial court’s discretion, exercised in conformity with traditional equity practice. Under the traditional practice, the plaintiff bears the burden of showing the prerequisites for obtaining the extraordinary relief of preliminary injunction. Moore v. Sanders, 558 So. 2d 1383, 1990 Miss. LEXIS 154 (Miss. 1990).

Where there exists a serious emergency situation which threatens irreparable injury, the issuance of a preliminary prohibitive injunction without a hearing and without notice to the party against whom relief is sought may be proper. Lance v. Mississippi Employment Sec. Com., 279 So. 2d 622, 1973 Miss. LEXIS 1482 (Miss. 1973).

Temporary injunction may be granted ex parte without notice in cases of greatest emergency. Alexander v. Woods, 103 Miss. 869, 60 So. 1017, 1912 Miss. LEXIS 243 (Miss. 1912).

Temporary injunction should be granted only to prevent irreparable injury. Mayor & Board of Aldermen of Water Valley v. State, 103 Miss. 645, 60 So. 576, 1912 Miss. LEXIS 192 (Miss. 1912).

8. Restraining order.

Restraining order unknown to the practice in this state and cannot be granted upon issuance of citation to show cause why injunction should not be granted, as such citation implies that defendant may not be restrained until after hearing. Castleman v. State, 94 Miss. 609, 47 So. 647, 1909 Miss. LEXIS 317 (Miss. 1909).

9. Persons entitled to relief.

Where the complaint showed that one other than the complainant was in possession of the office and performing the duties thereof, the complainant failed to bring himself within the exception to the general rule that an injunction will not lie to try the right and title to a public office. Lacey v. Noblin, 238 Miss. 329, 118 So. 2d 336, 1960 Miss. LEXIS 409 (Miss. 1960).

Taxpayers not entitled to injunction against construction of overhead passway where entire costs borne by railroad and federal and state highway department. Hinds County v. Johnson, 133 Miss. 591, 98 So. 95, 1923 Miss. LEXIS 169 (Miss. 1923).

Game warden appointed under Laws 1916 ch. 99, could not enjoin submission of the act to a referendum of the voters on the theory that he was entitled to emoluments of his office and might suffer irreparable injury. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

Owner, without objecting to petition and appealing, may on bill to enjoin issuance of bonds of established drainage districts question court’s jurisdiction where such question was one of law to be determined from the record. Hardee v. Brooks, 107 Miss. 821, 66 So. 216, 1914 Miss. LEXIS 148 (Miss. 1914).

State revenue agent cannot enjoin bank from using void order of supervisors assessing back taxes, in circuit court on appeal from order of board rejecting assessment for back taxes by tax collector, as circuit court could give adequate relief. Adams v. First Nat'l Bank, 103 Miss. 744, 60 So. 770, 1912 Miss. LEXIS 225 (Miss. 1912).

Taxpayer may enjoin carrying out of drainage scheme under void statute. Belzoni Drainage Com. v. Winn, 98 Miss. 359, 53 So. 778, 1910 Miss. LEXIS 72 (Miss. 1910).

Either party to suit involving title to land may enjoin the other from cutting timber or committing waste thereon. Freeman v. Ammons, 91 Miss. 672, 46 So. 61, 1907 Miss. LEXIS 210 (Miss. 1907).

Justice of the peace and members of board of supervisors cannot enjoin election to determine question of creation of new county on the ground that the act providing for such election was unconstitutional, as they have no right to complain until directly affected by its operation. Conner v. Gray, 88 Miss. 489, 41 So. 186, 1906 Miss. LEXIS 170 (Miss. 1906).

One tenant in common is entitled to an injunction against his co-tenants to restrain unusual and unreasonable waste, indicating malice and tending to destroy the chief value of the land. Leatherbury v. McInnis, 85 Miss. 160, 37 So. 1018, 1904 Miss. LEXIS 174 (Miss. 1904) but see Threatt v. Rushing, 361 So. 2d 329, 1978 Miss. LEXIS 2357 (Miss. 1978).

A debtor may enjoin a sale under a deed of trust given to secure a usurious debt by paying or tendering the principal of the debt without interest. Southern Home Bldg. & Loan Ass'n v. Tony, 78 Miss. 916, 29 So. 825, 1901 Miss. LEXIS 143 (Miss. 1901); Purvis v. Woodward, 78 Miss. 922, 29 So. 917, 1901 Miss. LEXIS 148 (Miss. 1901); Parchman v. McKinney, 20 Miss. 631, 1849 Miss. LEXIS 106 (Miss. 1849), limited, Dickerson v. Thomas, 67 Miss. 777, 7 So. 503, 1890 Miss. LEXIS 117 (Miss. 1890); Long v. McGregor, 65 Miss. 70, 3 So. 240, 1887 Miss. LEXIS 17 (Miss. 1887); American Freehold Land & Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 1892 Miss. LEXIS 20 (Miss. 1892).

10. Subjects of injunctive relief.

11. —Property rights.

Injunction to prevent maintenance of embankment on defendant’s land, alleged to cause more water to flow into creek, is properly denied where embankment was constructed for purpose of causing water to flow into creek as natural water course instead of overflowing defendant’s field. Jones v. Walker, 44 So. 2d 466 (Miss. 1950).

Complainants are not entitled to injunctive relief against use of property in violation of alleged restrictive covenants when no restrictive covenants are contained in deed to owners of property in question nor in mesne conveyances by which property passed to them. Watson v. Waldon, 43 So. 2d 751 (Miss. 1950).

Equity will not enjoin solvent mortgagee from foreclosing his mortgage through advertisement and sale by a trustee until an accounting can be had between parties to ascertain whether or not mortgagor has counterclaim against the mortgagee, where such counterclaim has arisen out of a separate and distinct transaction from that out of which the mortgage indebtedness arose. Hub Bldg. & Loan Ass'n v. Warren, 207 Miss. 297, 42 So. 2d 203, 1949 Miss. LEXIS 340 (Miss. 1949).

Right to injunctive relief is basic ground of jurisdiction of court of equity, particularly when it comes to enjoining repeated and continuing trespass to property, where actions at law would entail multiplicity of suits and where damages would be irreparable. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

State court of equity has jurisdiction to protect certified common carrier of passengers by motor vehicle in interstate and intrastate commerce in its property rights in its large investments in state and to prevent, by injunction, through force, intimidation and violence, irreparable injury to persons and property. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Injunction will not lie to restrain prosecution of replevin to recover property by claimant not holder of warehouse receipts issued therefor. Sunflower Compress Co. v. Staple Cotton Co-op. Ass'n, 139 Miss. 200, 103 So. 802, 1925 Miss. LEXIS 121 (Miss. 1925).

Error to dismiss bill and deny relief for trespass on land in seeking private way, where it alleged that no proceeding had before board of supervisors. Whitefort v. Homochitto Lumber Co., 130 Miss. 14, 93 So. 437, 1922 Miss. LEXIS 181 (Miss. 1922).

Injunction against interference of property rights may be granted although defendant may be guilty of criminal trespass where such fact is mere incident to and not made basis of equitable relief. Floyd v. Adler, 96 Miss. 544, 51 So. 897, 1910 Miss. LEXIS 201 (Miss. 1910).

Either party to suit involving title to land may enjoin the other from cutting timber or committing waste thereon. Freeman v. Ammons, 91 Miss. 672, 46 So. 61, 1907 Miss. LEXIS 210 (Miss. 1907).

One tenant in common is entitled to an injunction against his co-tenants to restrain unusual and unreasonable waste, indicating malice and tending to destroy the chief value of the land. Leatherbury v. McInnis, 85 Miss. 160, 37 So. 1018, 1904 Miss. LEXIS 174 (Miss. 1904) but see Threatt v. Rushing, 361 So. 2d 329, 1978 Miss. LEXIS 2357 (Miss. 1978).

An injunction will not lie at the suit of one asserting ownership of land to restrain the cutting of timber by a solvent person in possession claiming title in good faith, there being no pending suit to which the injunctive relief is ancillary. J. E. North Lumber Co. v. Gary, 83 Miss. 640, 36 So. 2, 1903 Miss. LEXIS 84 (Miss. 1903).

12. —Elections.

Referendum election cannot be enjoined. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 1916 Miss. LEXIS 70 (Miss. 1916).

Chancery court has jurisdiction to enjoin election in violation of Constitution and laws of the state. Conner v. Gray, 88 Miss. 489, 41 So. 186, 1906 Miss. LEXIS 170 (Miss. 1906).

Act providing for election to determine question of creating new county being constitutional, neither the election nor returns thereof can be enjoined. Conner v. Gray, 88 Miss. 489, 41 So. 186, 1906 Miss. LEXIS 170 (Miss. 1906).

13. —Nuisances.

In an action to abate a gambling place nuisance, a temporary injunction is not void because it does not describe the premises. Alexander v. State, 210 Miss. 517, 49 So. 2d 387, 1950 Miss. LEXIS 353 (Miss. 1950).

In a suit to abate a gambling place as a nuisance, the chancery court had power to issue temporary injunction inasmuch as § 1073, Code of 1942, specifically provides that all rules of evidence and of practice and procedure that pertain to courts of equity generally in this state may be invoked and applied in any injunction procedure thereunder and this evidences a legislative intent to grant the court the full use of its injunctive powers. Alexander v. State, 210 Miss. 517, 49 So. 2d 387, 1950 Miss. LEXIS 353 (Miss. 1950).

Municipality creates public nuisance, which equity court has power to enjoin, when it gathers surface waters from thirteen-acre area, much of it diverted from its natural flow, concentrates it into thirty-inch culvert and discharges it upon lot adjoining important thoroughfare, with outtake therefrom of only fifteen inches, resulting in unsightly and unsanitary mosquito-breeding pond constituting menace to public health. City of Jackson v. Robertson, 208 Miss. 422, 44 So. 2d 523, 1950 Miss. LEXIS 258 (Miss. 1950).

It is not essential to grant of relief against municipality that negligence be shown where created condition against which relief is sought constitutes public nuisance. City of Jackson v. Robertson, 208 Miss. 422, 44 So. 2d 523, 1950 Miss. LEXIS 258 (Miss. 1950).

Gasoline filling station not nuisance per se but may be so operated as to become nuisance and subject to injunction. National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 1924 Miss. LEXIS 76 (Miss. 1924).

Street railroad may be enjoined from maintaining tracks so near abutting property as to become nuisance. Meridian L. & R. Co. v. Slaughter, 98 Miss. 420, 53 So. 952, 1910 Miss. LEXIS 79 (Miss. 1910).

14. —Taxes.

Chancery court may not enjoin prosecution by state, county, or municipality of appeal from tax assessment. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Alleged intention of attorney-general in appeal from tax assessment, to secure 100% as against 60% assessment for other property not ground for injunction. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

A proceeding to assess property will not be enjoined. Yazoo & M. V. R. Co. v. Adams, 73 Miss. 648, 19 So. 91, 1895 Miss. LEXIS 123 (Miss. 1895).

An injunction does not lie against an alleged excessive assessment. Board of Sup'rs v. Ames, 3 So. 37 (Miss. 1887).

15. —Criminal prosecutions.

Criminal prosecutions which may result in fines and costs cannot be enjoined. Board of Sup'rs v. Owen, 100 Miss. 462, 56 So. 525, 1911 Miss. LEXIS 50 (Miss. 1911).

Equity will not enjoin arrest and fining of merchant for alleged disturbance of peace by using a megaphone to call attention to clearance sale. Pleasants v. Smith, 90 Miss. 440, 43 So. 475, 1907 Miss. LEXIS 72 (Miss. 1907).

16. —Miscellaneous.

Evidence that production of salt water was increasing significantly so that oil-gas and mineral lessee faced imminent additional increase and that a very small pit was available to contain salt water, that prudence on the part of the lessee necessitated immediate steps to take care of salt water, that the owner of surface rights to the land involved as well as other landowners were threatened with damages from overflows, that under the lease the lessee had the right to place pipes across the land of the surface rights owner, and that the surface rights owner determined that the lessee should not be allowed to place the pipeline across his lands without first making an advance settlement with him, justified both the temporary injunction without notice as well as the permanent injunction enjoining the surface rights owner from interfering with the laying of a pipeline across his lands. Lance v. Mississippi Employment Sec. Com., 279 So. 2d 622, 1973 Miss. LEXIS 1482 (Miss. 1973).

As an exception to the general rule, an injunction will be granted at the instance of an incumbent of office to restrain a claimant from interfering with him, but the incumbent must show that he has possession of the office, and the prima facie right to occupy it, or there is no other person authorized by law to hold it, but where the complaint reflected that one other than the complainant was in possession of the office and performing their duties thereof, the claimant failed to come within the exception. Lacey v. Noblin, 238 Miss. 329, 118 So. 2d 336, 1960 Miss. LEXIS 409 (Miss. 1960).

Chancery court may and, in proper case, will restrain its own citizens, or other persons within the control of its process, from prosecuting actions or proceedings in other states. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Ordinarily chancery will enjoin an action in another state where it appears that it is fraudulent or brought for purpose of vexing, harassing or oppressing an opponent, or that it is an evasion of laws of the domicil. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Rule to effect that citizen of one state may be enjoined from prosecuting action against another citizen of same state applies equally when injunction is sought to restrain citizen of one state from prosecuting action against nonresident corporation doing business with lawful authority in such state. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

State courts cannot interfere with federal courts as general rule, but when defendant is resident citizen of this state he can be required by injunction to bring his proposed action of libel within this state, it not having been previously filed, since it is strictly proceeding in personam, where Congress has not fixed venue. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Chancery court properly enjoined defendant as resident citizen of this state from suing Delaware corporation, authorized to do business in this state and with its principal place of business in this state, in any Delaware court, state or federal, for tort action in libel, there being no federal statute prescribing venue for such action, where it appeared from bill that defendant was seeking more to obtain compromise than to prosecute good faith suit, and suit in state of Delaware would impose inequitable hardship and irreparable injury upon corporation. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Injunction against municipal water and electric light commissioners enjoining them from putting into effect disability and pension system for their employees as authorized by special legislative enactment is not proper when burden of showing unconstitutionality of enactment has not been met and it has not been shown that it was outside competence of legislature to authorize commissioners to establish proper system applicable to employees affected by the legislation. Palmertree v. Garrard, 207 Miss. 796, 43 So. 2d 381, 1949 Miss. LEXIS 389 (Miss. 1949).

Mortgagee will not be enjoined from foreclosing until accounting can be had to ascertain whether mortgagors had setoff against mortgagee where claim was unliquidated and there was no allegation of insolvency of mortgagee. Hub Bldg. & Loan Ass'n v. Warren, 207 Miss. 297, 42 So. 2d 203, 1949 Miss. LEXIS 340 (Miss. 1949).

State chancery court has jurisdiction to issue injunction on behalf of bus company engaged in interstate and intrastate commerce against labor union and its members to enjoin use of violence, force, intimidation, and coercion during labor dispute. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Jurisdiction of court of equity may be invoked by one being picketed for injunctive relief against mass picketing. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Bill alleging that unions and their members are maintaining picket lines around terminals, garages, office buildings and other property of complainant, are coercing, intimidating and threatening present and prospective employees, and are conspiring together to unlawfully, and by means of violence, prevent general public from using complainant’s services alleges facts sufficient to invoke jurisdiction of court of equity and to obtain injunctive relief. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Chancellor properly denied injunction restraining husband from leaving jurisdiction of court for purpose of obtaining a divorce, under the particular circumstances, in wife’s suit for separate support and maintenance. Ballard v. Ballard, 199 Miss. 316, 24 So. 2d 335, 1946 Miss. LEXIS 200 (Miss. 1946).

A person may enjoin the unauthorized use of his name in the business of another, but the court will not enjoin the use of a name in a locality when no competition exists. Cockrell v. Davis, 198 Miss. 660, 23 So. 2d 256, 1945 Miss. LEXIS 238 (Miss. 1945).

Evidence sustained finding that defendant, “James Davis Cockrell,” in using the name “Jimmie Davis” in connection with his band did so for the purpose of capitalizing on the reputation and name of complainant, “James Harold Davis,” who had been using the name “Jimmie Davis” which had acquired the attributes of a tradename and had become identified with complainant nationally, and that confusion resulted therefrom and that competition did exist, so that injunctive relief was proper. Cockrell v. Davis, 198 Miss. 660, 23 So. 2d 256, 1945 Miss. LEXIS 238 (Miss. 1945).

Citizen of state may be enjoined from prosecuting action against another citizen of same state in foreign jurisdiction to evade law of his own state. Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871, 1930 Miss. LEXIS 11 (Miss. 1930).

Equity can restrain replevin of piano bought on installment plan and decree redemption of the lien sought to be enforced by defendant. McIntyre v. E.E. Forbes Piano Co., 100 Miss. 517, 56 So. 457, 1911 Miss. LEXIS 45 (Miss. 1911).

Trustees and teacher of school district may be enjoined from enforcing an invalid rule. Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 1909 Miss. LEXIS 374 (Miss. 1909).

Ejectment based on invalidity of appointment of substituted trustee in deed of trust who sold land to complainant, will be enjoined where complainant has been in possession 8 years, the original debt has become barred, and complainant offers to do equity. Wall v. Harris, 90 Miss. 671, 44 So. 36, 1907 Miss. LEXIS 105 (Miss. 1907).

A bill by debtors to determine to whom their debt should be paid is a bill of interpleader, although relief by injunction be asked, and the rights of the parties should be treated accordingly. Quin v. Hart, 85 Miss. 71, 37 So. 553, 1904 Miss. LEXIS 115 (Miss. 1904).

A complainant in a bill of interpleader is not entitled to relief by injunction when he has paid nothing into court. Quin v. Hart, 85 Miss. 71, 37 So. 553, 1904 Miss. LEXIS 115 (Miss. 1904).

17. Pleading.

Determination of plaintiff’s right to injunction upon final hearing would not be determined upon demurrer but would be left until the hearing, in suit by district attorney on behalf of county or district thereof against member of board of supervisors of the district and his surety to recover loss resulting from unauthorized use of construction equipment for benefit of private individuals. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

Oath or other means, by which chancellor must be satisfied of complainant’s equity and truth of allegations of bill before granting preliminary injunction, need not appear of record. Hanna v. State, 169 Miss. 314, 153 So. 371, 1934 Miss. LEXIS 57 (Miss. 1934).

Complainant’s bill seeking greater relief than is allowable is not bad on that account, as he is still entitled to all relief to which he shows a right. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

It is not necessary in all cases that the bill be sworn to. It is sufficient if the chancellor be satisfied of complainant’s equity “by oath or other means.” Purvis v. Woodward, 78 Miss. 922, 29 So. 917, 1901 Miss. LEXIS 148 (Miss. 1901).

18. Judgment or decree.

Clerk required to obey judgment though injunction erroneous. Bruister v. Tansil, 99 So. 258 (Miss. 1924).

Fiat directing issuance of injunction held to limit clerk’s authority in doing so, and not to be against discrimination in water rates where requirement was that waterworks company refrain from cutting off water supply. Griffith v. Vicksburg Waterworks Co., 88 Miss. 371, 40 So. 1011, 1906 Miss. LEXIS 156 (Miss. 1906).

RESEARCH REFERENCES

ALR.

Power to enjoin canvassing votes and declaring result of election. 1 A.L.R.2d 588.

Injunction by state court against action in court of another state. 6 A.L.R.2d 896.

Adequacy, as regards right to injunction, of other remedy for review of order fixing public utility rates. 8 A.L.R.2d 839.

Legality of, and injunction against, peaceful picketing to force employees to join union or to compel employer to enter into a contract which would in effect compel them to do so, in the absence of a dispute between employer and employees as to terms or conditions of employment. 11 A.L.R.2d 1338.

Remedy of tenant against stranger wrongfully interfering with his possession. 12 A.L.R.2d 1192.

Mandatory injunction prior to hearing of case. 15 A.L.R.2d 213.

Who, under Federal Rule 65(d) and state counterparts, are persons “in active concert or participation” with parties to action so as to be bound by order granting an injunction. 97 A.L.R.2d 490.

Recovery of damages resulting from wrongful issuance of injunction as limited to amount of bond. 30 A.L.R.4th 273.

Propriety of injunction by federal court in civil action restraining prosecution of later civil action in another federal court where one or more parties or issues are, or allegedly are, same. 42 A.L.R. Fed. 592.

Who, under Rule 65(d) of Federal Rules of Civil Procedure, are persons “in active concert or participation” with parties to action so as to be bound by order granting injunction. 61 A.L.R. Fed. 482.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 1 et seq.

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Form 4.1 (Complaint, petition, or declaration – For declaratory and injunctive relief – To compel sheriff to furnish television station with information on concealed weapons licenses).

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Form 4.3 (Order – Preliminary injunction – Requiring disclosure of information on concealed weapons licenses).

CJS.

43A C.J.S., Injunctions § 147.

§ 11-13-3. Security required to stay proceedings at law.

An injunction to stay proceedings at law shall not be issued until after the party obtaining the injunction shall give security in such sum as the court deems proper for the payment of costs, damages and reasonable attorney’s fees as may be incurred or suffered by any party who is found to be wrongfully enjoined.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 2 (43); 1857, ch. 62, art. 65; 1871, § 1044; 1880, § 1905; 1892, § 558; 1906, § 609; Hemingway’s 1917, § 369; 1930, § 416; 1942, § 1336; Laws, 1991, ch. 573, § 24, eff from and after July 1, 1991.

Cross References —

Bond for stay of execution, see §11-51-59.

The restoration of money on enjoining of execution, see §13-3-183.

Injunctions, see Miss. R. Civ. P. 65.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Dissolution of injunction.

1. In general.

This section [Code 1942, § 1336] does not apply to a suit to restrain a building contractor from foreclosing a deed of trust executed by the owner until he should have fully performed his contract. Aqs Lumber Co. v. Heathman, 246 Miss. 314, 149 So. 2d 335, 1963 Miss. LEXIS 445 (Miss. 1963).

Where injunction bond as originally written was sufficient, permitting amendment showing signers were sureties and making condition accord with statutory requirement held not prejudicial. Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871, 1930 Miss. LEXIS 11 (Miss. 1930).

Chancery clerk taking injunction bond in proper amount is not subject to statutory penalty or damages if sureties are solvent. Davis v. Hale, 155 Miss. 309, 124 So. 370, 1929 Miss. LEXIS 297 (Miss. 1929).

Equity has jurisdiction to restrain proceedings at law only where some equitable ground exists, and remedy at law is not plain, adequate, and complete. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

2. Dissolution of injunction.

Injunction to stay proceedings at law must be dissolved where plaintiff fails to give bond in double the amount of the debt sued for. Tillman v. Heard, 95 Miss. 238, 48 So. 963, 1909 Miss. LEXIS 250 (Miss. 1909).

Injunction of foreclosure of trust deed after advertisement for sale, later dissolved, entitled defendant to counsel fees for procuring dissolution and for printer’s fees for the advertisement. Gulfport Land Improv. Co. v. Augur, 95 Miss. 292, 48 So. 722 (Miss. 1909).

On the partial dissolution of an injunction by a county to restrain an action of ejectment for lands held by it, attorney’s fees and interest on rents may be allowed. Allen v. Leflore County, 80 Miss. 298, 31 So. 815 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Partial dissolution of injunction as breach of injunction bond. 40 A.L.R. 990.

Bond as prerequisite to temporary restraining order. 73 A.L.R.2d 854.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 172- 190, 206, 209.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 61-66 (Bond or other security).

10 Am. Jur. Legal Forms 2d, Injunctions §§ 147:14 et seq. (injunction bond).

CJS.

43A C.J.S., Injunctions §§ 163–202.

§ 11-13-5. Bond when injunction is not to stay proceedings at law.

Where the injunction shall not be for the stay of proceedings in an action at law for the recovery of money, or upon a judgment requiring the payment of money, the party applying for the injunction shall, before the issuance of the same, enter into bond in like manner as provided for in Section 11-13-3, in a sufficient penalty, to be fixed by the judge granting the same, conditioned for the payment of all damages and costs which may be awarded against him, or which the opposite party may suffer or sustain by reason of the suing out of said injunction, in case the same shall be dissolved.

HISTORY: Codes, 1857, ch. 62, art. 66; 1871, § 1045; 1880, § 1906; 1892, § 559; 1906, § 610; Hemingway’s 1917, § 370; 1930, § 417; 1942, § 1337.

Cross References —

Injunction against unfair competition with electric power association, see §77-5-509.

Injunction to enforce contract with cooperative marketing association, see §79-19-33.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Liability on bond.

3. Damages in general.

4. —Attorney fees.

5. Measure of damages.

1. In general.

The chancery court erred in denying a motion to dissolve a preliminary injunction where the injunction had been issued without the required bond having first been posted. Invesat Corp. v. Harrison Enterprises, Inc., 386 So. 2d 721, 1980 Miss. LEXIS 2053 (Miss. 1980).

The bond provided for by this section [Code 1942 § 1337] is mandatory, and its amount is within the sound discretion of the chancellor whose decision will not be disturbed on appeal unless this discretion has been abused. International Asso. of Bridge, Structural & Ornamental Ironworkers v. Howard L. Byrd Bldg. Service, Inc., 284 So. 2d 301, 1973 Miss. LEXIS 1254 (Miss. 1973).

This section [Code 1942, § 1337] provides the method for determining the amount of an injunction bond in a suit to restrain a building contractor from foreclosing a deed of trust executed by the owner until he should have fully performed his contract. Aqs Lumber Co. v. Heathman, 246 Miss. 314, 149 So. 2d 335, 1963 Miss. LEXIS 445 (Miss. 1963).

Appellees were not entitled to an injunction to prevent the foreclosure of a deed of trust where they did not give an injunction bond sufficient for the payment of the damages allowed by Code 1942, § 1352, in the event of its dissolution. Federal Land Bank v. Brumfield, 185 Miss. 487, 187 So. 522, 1939 Miss. LEXIS 138 (Miss. 1939).

Chancery court had no authority to issue preliminary mandatory injunction until bond was given and approved as provided by this section [Code 1942, § 1337]. Morris v. Trussell, 144 Miss. 343, 109 So. 854, 1926 Miss. LEXIS 365 (Miss. 1926).

Sequestration bond is distinct from injunction bond. Harleston v. West Louisiana Bank, 126 Miss. 593, 89 So. 257, 1921 Miss. LEXIS 67 (Miss. 1921).

Writ issued without bond given is void. Castleman v. State, 94 Miss. 609, 47 So. 647, 1909 Miss. LEXIS 317 (Miss. 1909).

2. Liability on bond.

Court’s lack of jurisdiction to grant injunction held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

That defendants were not damaged, but were only restrained from proceeding in unlawful manner, held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Expenses not shown to be necessary and not properly separated from expenses incurred before issuance of injunction could not be allowed in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Damages and attorney’s fees on dissolution held not liable where injunction rightfully sued out. United States Fidelity & Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456, 1920 Miss. LEXIS 69 (Miss. 1920).

The dismissal of the appeal dissolves the injunction, conclusively determines that it was wrongfully sued out, and makes the bond liable. Yale v. Baum, 70 Miss. 225, 11 So. 879, 1892 Miss. LEXIS 80 (Miss. 1892).

3. Damages in general.

Dismissal of bill establishes that injunction was wrongfully sued out, and that defendant is entitled to damages sustained by issuing of injunction. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Members of political party could sue as individuals for expenses incurred as result of wrongful issuance of injunction restraining holding of primary elections and conventions. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Damages for wrongful issuance of injunction may be allowed on appeal. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, 1917 Miss. LEXIS 92 (Miss. 1917).

4. —Attorney fees.

In suit for perpetual injunction to restrain defendants from utilizing space for any purpose other than right of way as actual means of access to their property, complainant is not entitled to recover damages by way of attorneys’ fees when only hearing of cause was full trial upon merits. Feld v. Young Men's Hebrew Ass'n, 208 Miss. 451, 44 So. 2d 538, 1950 Miss. LEXIS 264 (Miss. 1950).

Allowance of attorney’s fees under provision of note therefor, if it should be put in attorney’s hands for collection, held erroneous as damage in injunction suit. Middleton v. Zachary, 136 Miss. 395, 101 So. 558, 1924 Miss. LEXIS 151 (Miss. 1924).

Attorney’s fees do not include services in assessing damages after dissolution of the injunction. Thornton-Claney Lumber Co. v. J. M. O'Quin & Sons, 115 Miss. 857, 76 So. 732, 1917 Miss. LEXIS 271 (Miss. 1917).

Injunction bond in an unsuccessful suit against city covers amount necessary to pay special counsel to assist city attorney. Vicksburg Waterworks Co. v. Vicksburg, 99 Miss. 132, 54 So. 852, 1910 Miss. LEXIS 26 (Miss. 1910).

Solicitors’ fees are allowable as damages upon the dissolution of an injunction restraining the board of supervisors of a county from removing a county seat. Hinton v. Board of Sup'rs, 84 Miss. 536, 36 So. 565 (Miss. 1904).

Where a suit is alone for an injunction which is dissolved and the complainant is cast in the suit, attorney’s fees incurred in defending the whole case should be allowed. Jamison v. Houston, 74 Miss. 890, 21 So. 972 (Miss. 1897).

Board of supervisors held liable on injunction bond for actual damages, including attorney’s fees. Freeman v. Supervisors, 66 Miss. 1, 5 So. 516, 1888 Miss. LEXIS 47 (Miss. 1888).

The bond covers attorney’s fees and costs of the transcript of papers used on the trial. Baggett v. Beard, 43 Miss. 120, 1870 Miss. LEXIS 11 (Miss. 1870).

5. Measure of damages.

Damages, besides attorney’s fees, for injunction preventing sale of lumber is difference in price of lumber when injunction sued out and its value when dissolved, with interest on difference for the period. Thornton-Claney Lumber Co. v. J. M. O'Quin & Sons, 115 Miss. 857, 76 So. 732, 1917 Miss. LEXIS 271 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Limitation of antitrust damages under 15 USCS § 15 to amount of injunction bond where there has been per se violation of § 1 of Sherman Act (15 USCS § 1). 50 A.L.R. Fed. 575.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 248- 256.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 61-66 (Bond or other security).

10 Am. Jur. Legal Forms 2d, Injunctions §§ 147:14 et seq. (injunction bond).

CJS.

43A C.J.S., Injunctions §§ 399–406.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-13-7. Bonds in particular cases.

If the injunction be to stay a sale under execution of certain designated property, real or personal, or any proceeding at law as to certain specified things, and not to restrain proceedings at law generally, bond may be given as provided in Section 11-13-5; but if the injunction shall be obtained on the ground of some objection to the judgment or execution, or the demand of the party enjoined to sustain his claim, and shall not be confined to a contest of his right to subject to his demand particular property by his proceeding, bond shall be given as prescribed in Section 11-13-3.

HISTORY: Codes, 1880, § 1907; 1892, § 560; 1906, § 611; Hemingway’s 1917, § 371; 1930, § 418; 1942, § 1338.

Cross References —

Restoration of personal property levied on, see §11-13-19.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

RESEARCH REFERENCES

ALR.

Constitutionality, construction, and application of statute as to effect of taking appeal, or staying execution, on right to redeem from execution or judicial sale. 44 A.L.R.4th 1229.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 248- 256.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 61-66 (Bond or other security).

7 Am. Jur. Proof of Facts 3d 1, Injuries from Drugs.

CJS.

43A C.J.S., Injunctions §§ 399–406.

§ 11-13-9. Bond not required of state, county, municipality.

Neither the state, nor any county, nor any municipality, nor any state officer of the state suing out an injunction in his official character, shall be required to give bond to obtain an injunction.

HISTORY: Codes, 1880, § 1909; 1892, § 562; 1906, § 613; Hemingway’s 1917, § 373; 1930, § 419; 1942, § 1339; Laws, 1908, ch. 158.

Cross References —

Injunctions, see Miss. R. Civ. P. 65.

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions § 252.

CJS.

43A C.J.S., Injunctions §§ 399–406.

§ 11-13-11. Restraint on collection of taxes.

The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.

HISTORY: Codes, 1880, § 1831; 1892, § 483; 1906, § 533; Hemingway’s 1917, § 290; 1930, § 420; 1942, § 1340.

Cross References —

Prohibition against injunction to restrain the collection of sales taxes, see §27-65-71.

Prohibition of injunction to restrain collection of contributions for unemployment compensation, see §71-5-381.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Right and propriety of action.

3. —Necessity of tender of tax legally due.

4. —Tax assessment.

5. Proceedings in general.

1. In general.

The statute provides state citizens with a plain, speedy, and efficient remedy for challenging a municipal tax, including actions in which a citizen seeks a refund. Home Builders Ass'n v. City of Madison, 143 F.3d 1006, 1998 U.S. App. LEXIS 14884 (5th Cir. Miss. 1998).

Title 27, Chapter 7, and particularly §11-13-11, provide a sufficiently plain, speedy, and efficient remedy to satisfy the Tax Injunction Act; §27-73-1 is analogous to a general statute of limitations which gives way to a specific statute, so that this section in no way interferes with or prevents recovery under income tax refund statutes. Todd v. Johnson, 718 F. Supp. 1305, 1989 U.S. Dist. LEXIS 9982 (S.D. Miss. 1989).

Under §11-13-11, which provides the Chancery Court with jurisdiction over suits by taxpayers to restrain the collection of taxes levied without authority of law, the court has the authority to enjoin the collection or assessment of taxes, and once a complaint has been filed demanding relief of the sort contemplated by §11-13-11, the Chancery Court has subject matter jurisdiction. The language of §27-65-71, which purports to bar application of § 11-13-11 to taxes imposed by the sales tax chapter, is only effective if the case fails to meet the legislatively and judicially created requirements necessary to invoke jurisdiction under the latter statute. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Under this section, it is unnecessary that the taxpayer must have sought redress before the proper authorities or must have invited other taxpayers to join him, and the only factor to be taken into consideration in deciding whether to grant injunctive relief is whether the taxpayer has no adequate remedy at law. Fondren v. State Tax Com., 350 So. 2d 1329, 1977 Miss. LEXIS 2245 (Miss. 1977).

Code 1942, § 1340 provides taxpayers with a plain, speedy, and efficient remedy, thus precluding federal jurisdiction. Bland v. McHann, 463 F.2d 21, 1972 U.S. App. LEXIS 8695 (5th Cir. Miss. 1972), cert. denied, 410 U.S. 966, 93 S. Ct. 1438, 35 L. Ed. 2d 700, 1973 U.S. LEXIS 3138 (U.S. 1973).

This section [Code 1906, § 533] is only authority of equity to enjoin collection of taxes. Purvis v. Robinson, 110 Miss. 64, 69 So. 673, 1915 Miss. LEXIS 7 (Miss. 1915).

2. Right and propriety of action.

Taxpayers seeking to challenge the authority of the Board of Supervisors in letting appraisal contracts under §27-35-101 were not entitled to injunctive relief under §11-13-11 where the taxpayers had a complete and adequate remedy at law through §27-35-119. Lewis v. Mass Appraisal Services, Inc., 396 So. 2d 35, 1981 Miss. LEXIS 1985 (Miss. 1981).

In a taxpayer’s suit to enjoin the State Tax Commission from approving each county’s recapitulation of its assessment rolls until such time as the Commission should comply with its duty to equalize assessments among counties as provided by Code 1972 §§27-35-113 et seq. and Const. 1890 Art. 4 § 112, the complaint was sufficient to warrant the conclusion that the Commission’s legal remedies were provided by Code 1972 §27-35-163, which allow a taxpayer to obtain a judicial determination that a particular piece of property has been improperly assessed and to obtain a reduction in the tax, or by Code 1972 §27-35-93 & §27-35-119, which prescribe methods by which to determine the proper assessment of the particular piece of property, since plaintiff-taxpayer was not alleging an erroneous computation of the value of actions result in the collection of taxes “without authority of law” as a prerequisite for injunctive relief under Code 1972 §11-13-11, where the complaint alleged the Commission’s failure over a period of many years to carry out its duty of equalizing assessments and in essence alleged that owners of parcels of land of identical value in different counties may face radically different tax liabilities; no adequate his property and was not seeking a new calculation of his tax. Fondren v. State Tax Com., 350 So. 2d 1329, 1977 Miss. LEXIS 2245 (Miss. 1977).

This section [Code 1942, § 1340] does not justify proceeding to enjoin collection of additional sale tax assessment where judgment sustaining the validity of such assessment had been affirmed by supreme court. Viator v. Edwins, 195 Miss. 220, 14 So. 2d 212, 1943 Miss. LEXIS 129 (Miss. 1943).

Even though it should be conceded that this section [Code 1942, § 1340] dispenses with a necessity for showing an independent equity in order to entitle a taxpayer to an injunction, it certainly does not do so when the taxes have been levied and are sought to be collected with authority of law. Stone v. Kerr, 194 Miss. 646, 10 So. 2d 845, 1942 Miss. LEXIS 166 (Miss. 1942).

The language of the statute “without authority of law” imports more than mere irregularity or errors of computation, and the correction of improper charges involves matters remediable by appeal or original suit and presupposes jurisdiction. Stone v. Kerr, 194 Miss. 646, 10 So. 2d 845, 1942 Miss. LEXIS 166 (Miss. 1942).

If the proceedings of the state tax commission for the imposition and assessment of tax are void, or if the commission acts in a manner beyond its jurisdiction, or in an unauthorized manner, it acts “without authority of law,” but in the event that the hearing is for “a correction of the amount of the tax so assessed” and by a “person improperly charged” with the tax, who is “required to pay the same,” it involves at most “an irregularity,” and an injunction will not lie. Stone v. Kerr, 194 Miss. 646, 10 So. 2d 845, 1942 Miss. LEXIS 166 (Miss. 1942).

Where bank voluntarily paid taxes and did not avail itself of statutory remedies to cure alleged errors, receiver of bank held not entitled to mandamus to compel attorney general to approve refund. Selig v. Price, 167 Miss. 612, 142 So. 504, 1932 Miss. LEXIS 204 (Miss. 1932).

Consolidated school district tax, levied without separate assessment of property in district, void, and collection enjoined. Morgan v. Wood, 140 Miss. 137, 106 So. 435, 1925 Miss. LEXIS 241 (Miss. 1925).

Court cannot restrain collection of taxes on ground of illegality before the auditor makes assessment thereof. Thompson v. Kreutzer, 103 Miss. 388, 60 So. 334, 1912 Miss. LEXIS 181 (Miss. 1912).

Collection of taxes under law creating school for white children and making no provision for colored children, may be enjoined. McFarland v. Goins, 96 Miss. 67, 50 So. 493, 1909 Miss. LEXIS 18 (Miss. 1909).

Where municipal authorities levy a tax for a proper purpose in excess of the legal limit, the collection of the excess only should be enjoined. Lewis v. Bogue Chitto, 76 Miss. 356, 24 So. 875 (Miss. 1898).

The court will enjoin a tax levied by the board of supervisors in a matter over which it has no jurisdiction. Browning v. Matthews, 73 Miss. 343, 18 So. 658, 1895 Miss. LEXIS 95 (Miss. 1895).

3. —Necessity of tender of tax legally due.

Chancery court did not err in dismissing a taxpayer’s complaint against the Mississippi Department of Revenue (MDOR) for lack of subject-matter jurisdiction because the taxpayer failed to pursue the administrative remedies available to him; the MDOR provided sufficient notice to the taxpayer of his tax assessments. Williams v. Morgan, 201 So.3d 1073, 2016 Miss. App. LEXIS 578 (Miss. Ct. App. 2016).

If by reason of illegal proceedings no valid charge on property is effected, the taxpayer may enjoin without tendering anything. Ball v. Meridian, 67 Miss. 91, 6 So. 645, 1889 Miss. LEXIS 14 (Miss. 1889).

Where part of the tax is legally assessable, and that part is tendered and refused, a bill to enjoin the collection of the excess is maintainable without tendering therewith the part that is legal. City of Meridian v. George, 67 Miss. 86, 6 So. 619 (Miss. 1889).

4. —Tax assessment.

Chancery court erred in finding a taxpayer had an adequate remedy at law because the taxpayer properly alleged an inadequate remedy at law, and no adequate remedy at law was available to review the involuntary withdrawal of its appeal; the taxpayer was precluded from appealing the tax assessment and deprived the Mississippi Board of Tax Appeals from jurisdiction over the appeal. Enscor, LLC v. Morgan, 269 So.3d 403, 2018 Miss. App. LEXIS 244 (Miss. Ct. App. 2018).

The jurisdiction conferred does not entitle one who complains of an excessive assessment to exhibit his bill for relief. Board of Sup'rs v. Ames, 3 So. 37 (Miss. 1887).

A proceeding to assess property is not “an attempt to collect” them within the meaning of this section [Code 1942, § 1340], and the court will not enjoin the assessment of taxes. Yazoo & M. V. R. Co. v. Adams, 73 Miss. 648, 19 So. 91, 1895 Miss. LEXIS 123 (Miss. 1895); Portwood v. Baskett, 64 Miss. 213, 1 So. 105, 1886 Miss. LEXIS 46 (Miss. 1886).

The remedy of a taxpayer aggrieved by the action of the board of supervisors in increasing the assessment of his property is by an appeal to the circuit court; and failing to pursue this course, he cannot obtain relief in a court of chancery. Anderson v. Ingersoll, 62 Miss. 73, 1884 Miss. LEXIS 21 (Miss. 1884).

5. Proceedings in general.

Taxpayer who had joined with others to obtain injunction restraining collection of privilege taxes for operation of billiard and pool halls held liable for own taxes only on dissolution of injunction and dismissal of bill, regardless of terms of injunction bond. Hamel v. Marlow, 171 Miss. 559, 157 So. 255, 157 So. 905, 1934 Miss. LEXIS 222 (Miss.), set aside, 171 Miss. 565, 157 So. 905 (Miss. 1934).

Unsuccessful contest of validity of privilege tax, though prosecuted in good faith, does not relieve taxpayer of penalty imposed for nonpayment thereof when due. Hamel v. Marlow, 171 Miss. 559, 157 So. 255, 157 So. 905, 1934 Miss. LEXIS 222 (Miss.), set aside, 171 Miss. 565, 157 So. 905 (Miss. 1934).

RESEARCH REFERENCES

ALR.

Financial hardship or inability to pay as rendering inapplicable statutes denying remedy by injunction against tax assessment or collection. 65 A.L.R.2d 550.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 162- 171, 194, 196.

CJS.

43A C.J.S., Injunctions §§ 347-349.

§ 11-13-13. Security required to enjoin collection of taxes.

An injunction shall not be granted to stay the collection of state, county, city, town or village taxes unless upon condition that, before its issuance, the party obtaining it shall give security to the state in such sum as the court deems proper for the payment of damages, costs, and reasonable attorney’s fees as may be incurred or suffered by the state, in case the injunction shall be dissolved.

HISTORY: Codes, 1880, § 1908; 1892, § 561; 1906, § 612; Hemingway’s 1917, § 372; 1930, § 421; 1942, § 1341; Laws, 1991, ch. 573, § 25, eff from and after July 1, 1991.

Cross References —

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

Interest on delinquent taxes cannot be recovered as damages. Illinois C. R. Co. v. Adams, 78 Miss. 895, 29 So. 996, 1901 Miss. LEXIS 149 (Miss. 1901).

A municipality defending by its attorney, whose annual salary is his only compensation for the service, is not entitled to counsel fees by way of damages on the dissolution of an injunction. Nixon v. Biloxi, 76 Miss. 810, 25 So. 664, 1899 Miss. LEXIS 14 (Miss. 1899).

Execution of the bond is a condition precedent to the remedy by injunction. Yazoo & M. V. R. Co. v. Adams, 73 Miss. 648, 19 So. 91, 1895 Miss. LEXIS 123 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 248- 256.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 61-66 (Bond or other security).

CJS.

43A C.J.S., Injunctions §§ 399–406.

§ 11-13-15. Procedure for injunction of the collection of taxes.

All causes in which it is sought to enjoin or delay the collection of any taxes imposed by competent authority shall be preference cases, and tried at the earliest moment compatible with the ends of justice. Upon a dissolution of any such injunction, the chancellor or court ordering it dissolved shall enter a judgment against the person suing out the same and the sureties on his injunction bond, for the amount of the taxes so enjoined and ten percent (10%) thereon, and all costs of suit. Such judgment shall be enforced by execution for the use of the state or county, or both, or of the city, town or village, as the case may require. The said judgment shall be a lien from its date upon the property of the persons against whom it is rendered; and all the property on which the taxes enjoined were assessed shall remain bound by the lien for taxes declared by law, notwithstanding such injunction; and such property may be sold under the execution upon such judgment.

HISTORY: Codes, 1871, § 1751; 1880, § 576; 1892, § 484; 1906, § 534; Hemingway’s 1917, § 291; 1930, § 422; 1942, § 1342; Laws, 1991, ch. 573, § 26, eff from and after July 1, 1991.

Cross References —

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

Unsuccessful contest of validity of privilege tax, though prosecuted in good faith, does not relieve taxpayer of penalty imposed for nonpayment thereof when due. Hamel v. Marlow, 171 Miss. 559, 157 So. 255, 157 So. 905, 1934 Miss. LEXIS 222 (Miss.), set aside, 171 Miss. 565, 157 So. 905 (Miss. 1934).

Damages are limited to 10% on dissolution of injunction against collection of taxes. Bullen v. Smith, 146 Miss. 316, 111 So. 454, 1927 Miss. LEXIS 190 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 266- 276.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 71-101 (Continuance, modification, or dissolution of restraining order or injunction).

§ 11-13-17. Dissolution or modification of injunction of tax collection; general powers.

The provisions of Section 11-13-15 shall apply to a partial dissolution of an injunction of the collection of taxes and to an injunction of the sale of any property for taxes. In all cases of the injunction of the collection of taxes, or of the sale of any property for taxes, the court, or chancellor in vacation, in dissolving in part or in whole, or in modifying an injunction, shall have full power to make such judgment as may be necessary to enforce the right of the state, county, city, town, village, or other competent authority entitled to the taxes involved in such suit, and may direct a sale of any property liable to such taxes, and involved in such suit.

HISTORY: Codes, 1880, § 577; 1892, § 485; 1906, § 535; Hemingway’s 1917, § 292; 1930, § 423; 1942, § 1343; Laws, 1991, ch. 573, § 27, eff from and after July 1, 1991.

Cross References —

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions, §§ 268- 274.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 71-101 (Continuance, modification, or dissolution of restraining order or injunction).

§ 11-13-19. Chancellor may order return of personal property; execution.

When an injunction shall be granted to stay the sale of personal property, levied on by virtue of an execution, the chancellor may order the property to be restored to the plaintiff, on his giving bond to the sheriff, in such amount and with sufficient sureties as the judge deems proper, payable to the plaintiff in the execution, and conditioned for the redelivery of the property to the sheriff in case the injunction shall be dissolved. Such bond shall be returned by the sheriff with the execution, and shall have the force and effect of a judgment. Liability thereupon may be enforced by the procedure provided for in the Mississippi Rules of Civil Procedure. In case the property shall not be redelivered to the sheriff within fifteen (15) days after the dissolution of the injunction, the clerk of the court to which the bond was returned shall issue execution thereon for the amount of the assessed value of said property and all costs. But in such case, the lien on the property created by the judgment and the execution and levy, shall remain in force; and the sheriff, on a writ of venditioni exponas, or other order of sale, may seize the property so levied on wherever the same may be found.

HISTORY: Codes, 1857, ch. 62, art. 67; 1871, § 1046; 1880, § 1912; 1892, § 565; 1906, § 616; Hemingway’s 1917, § 376; 1930, § 424; 1942, § 1344; Laws, 1991, ch. 573, § 28, eff from and after July 1, 1991.

Cross References —

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

Upon dissolution of injunction restraining execution sale of personalty, personal decree should not be rendered against obligors on injunction bond for amount of judgment or debt enjoined, only defendant’s damages should be allowed. Gotelli v. Fountain, 127 Miss. 577, 90 So. 250, 1921 Miss. LEXIS 260 (Miss. 1921).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions § 60

27A Am. Jur. 2d, Equity § 26.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Form 13.2 (Motion or application – Temporary injunction – Action by administrator of estate – For sale of mobile home).

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Form 41.2 (Order – Granting temporary injunction – Sale of mobile home by decedent’s estate).

CJS.

43A C.J.S., Injunctions § 218.

§ 11-13-21. Return of personal property; other causes.

When an injunction shall be granted to stay a sale of personal property seized under a deed of trust or mortgage with power of sale, or in any case in which the sale of such property may be enjoined, the judge may order the property to be restored to the plaintiff on his giving bond to the sheriff in such amount and with sufficient sureties as the judge deems proper, payable to the person by whom such property is to be surrendered and conditioned for the return of the property to the person surrendering it, if the injunction shall be dissolved. Such bond shall be returned by the sheriff with the execution and shall have the force and effect of a judgment. Liability thereupon may be enforced by the procedure provided for in the Mississippi Rules of Civil Procedure. If not discharged by the delivery, within fifteen (15) days after the dissolution of the injunction, of the property to the person in whose possession it was before said order for the restoration to the plaintiff, execution shall be issued on such bond by the clerk for the value of said property.

HISTORY: Codes, 1880, § 1913; 1892, § 566; 1906, § 617; Hemingway’s 1917, § 377; 1930, § 425; 1942, § 1345; Laws, 1991, ch. 573, § 29, eff from and after July 1, 1991.

Cross References —

Temporary injunctions to abate a nuisance, see §§95-3-7,95-3-9.

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 20.

42 Am. Jur. 2d, Injunctions §§ 266- 276.

13 Am. Jur. Legal Forms 2d, Mortgages § 179:456.2.

CJS.

43A C.J.S., Injunctions § 218.

§§ 11-13-23 through 11-13-29. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-13-23. [Codes, 1857, ch. 62, art. 71; 1871, § 1050; 1880, § 1910; 1892, § 563; 1906, § 614; Hemingway’s 1917, § 374; 1930, § 426; 1942, § 1346]

§11-13-25. [Codes, Hutchinson’s 1848, ch. 54, art. 19 (6); 1857, ch. 62, art. 68; 1871, § 1047; 1880, § 1911; 1892, § 564; 1906, § 615; Hemingway’s 1917, § 375; 1930, § 427; 1942, § 1347]

§11-13-27. [Codes, 1857, ch. 62, art. 70; 1871, § 1049; 1880, § 1914; 1892, § 567; 1906, § 618; Hemingway’s 1917, § 378; 1930, § 428; 1942, § 1348]

§11-13-29. [Codes, 1880, § 1915; 1892, § 568; 1906, § 619; Hemingway’s 1917, § 379; 1930, § 429; 1942, § 1349]

Editor’s Notes —

Former §11-13-23 provided for the dissolution of injunctions granted in vacation unless a bill was filled by the first term.

Former §11-13-25 pertained to release of errors by injunction.

Former §11-13-27 pertained to motions to dissolve injunctions.

Former §11-13-29 pertained to the effect of a motion to dissolve an injunction when a motion to strike the answer was pending.

§ 11-13-31. Motion to dissolve injunction; affidavits; evidence.

Either party may, on the hearing of a motion to dissolve an injunction on bill and answer, read in evidence affidavits taken by him, on two days’ notice to the opposite party of the time and place of taking such affidavits, and may also introduce oral or documentary evidence, or both, at the hearing.

HISTORY: Codes, 1880, § 1916; 1892, § 569; 1906, § 620; Hemingway’s 1917, § 380; 1930, § 430; 1942, § 1350; Laws, 1922, ch. 227.

Cross References —

Rule governing the procedure for injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

Where answer under oath was waived in bill and cause was submitted on pleadings, neither party could rely on pleadings as evidence on hearing to dissolve injunction. Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871, 1930 Miss. LEXIS 11 (Miss. 1930).

Question, whether where complainant waives answer under oath, sworn answer can be treated as affidavit on motion to dissolve. Hentz v. Delta Bank, 76 Miss. 429, 24 So. 902, 1898 Miss. LEXIS 114 (Miss. 1898).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 266- 276.

CJS.

43A C.J.S., Injunctions §§ 380-392.

§ 11-13-33. Injunction bond as judgment.

A bond to enjoin proceedings at law on a judgment for money, upon the dissolution of the injunction, in whole or in part, shall have the force and effect of a judgment against the obligors; and liability of such sureties may be enforced under the procedure provided for in the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1880, § 1920; 1892, § 571; 1906, § 622; Hemingway’s 1917, § 382; 1930, § 431; 1942, § 1351; Laws, 1991, ch. 573, § 30, eff from and after July 1, 1991.

Cross References —

Bond required to stay proceedings at law, see §11-13-3.

Restoration of money on enjoining of execution, see §13-3-183.

Injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Execution, issuance of.

1. In general.

A decree dissolving a temporary injunction should not include a personal judgment against the plaintiff and the sureties on his bond. Eubanks v. W. H. Hodges & Co., 207 So. 2d 640, 1968 Miss. LEXIS 1626, 1968 Miss. LEXIS 1627 (Miss. 1968).

Where there was a final judgment rendered against sureties on “replevin bond,” the amount of judgment being for $500 and costs, but where an injunction was obtained staying proceedings at law on the judgment and also enjoining the sale of property under execution on the judgment, and where the writ of injunction was dissolved by the Supreme Court, the judgment creditor was entitled to the above judgment with legal interest together with five per cent as damages and to all costs in all courts. Murdock Acceptance Corp. v. Smith, 222 Miss. 594, 76 So. 2d 688, 1955 Miss. LEXIS 642 (Miss. 1955).

Upon dissolution of injunction restraining execution sale of personalty, personal decree should not be awarded against obligors on injunction bond for amount of judgment or debt enjoined but only for such damages as defendant may have sustained. Gotelli v. Fountain, 127 Miss. 577, 90 So. 250, 1921 Miss. LEXIS 260 (Miss. 1921).

Where injunction restraining execution of a money judgment at law is partly dissolved, personal judgment for true amount of indebtedness should not be granted. Courtney Bros. v. John Deere Plow Co., 122 Miss. 232, 84 So. 185, 1920 Miss. LEXIS 431 (Miss. 1920).

Sureties on bond are released by extension of time for valuable consideration without their consent. Miller v. Lewis, 103 Miss. 598, 60 So. 654, 1912 Miss. LEXIS 204 (Miss. 1912).

2. Execution, issuance of.

Where injunction to restrain execution on money decree was dissolved, execution could issue against sureties on injunction-bond for amount of decree. Russ v. Stockstill, 155 Miss. 368, 124 So. 359, 1929 Miss. LEXIS 290 (Miss. 1929).

Execution could issue within seven years after dissolution of decree enjoining execution on money decree, though original decree was barred. Russ v. Stockstill, 155 Miss. 368, 124 So. 359, 1929 Miss. LEXIS 290 (Miss. 1929).

Execution may be issued under judgment against injunction bond, regardless of alleged error of clerk in ordering execution under prior barred judgment. Stockstill v. Campbell, 145 Miss. 528, 111 So. 93, 1927 Miss. LEXIS 134 (Miss. 1927).

Dissolution of injunction against proceedings at law on judgment for money has the force and effect of a judgment against the obligors on the bond and execution may be issued against them for the amount of the judgment enjoined. Steadman v. Butler, 95 Miss. 695, 49 So. 614, 1909 Miss. LEXIS 282 (Miss. 1909).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 172- 190, 206, 209.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 61-66 (Bond or other security).

CJS.

43A C.J.S., Injunctions §§ 163–202.

§ 11-13-35. Damages on dissolution of certain injunctions.

When an injunction, obtained to stay proceedings on a judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs; and the clerk of the chancery court shall certify such dissolution to the clerk of the court in which the judgment was rendered, who shall thereupon issue execution for the damages, as well as for the original debt and costs. Damages at the same rate shall be allowed upon the dissolution of injunctions to stay sales under deeds of trust, or mortgages with power of sale; and such damages may be added to the debt, and collected by the sale of the property, or execution may issue from the chancery court for the same, together with the costs of suit, unless the value of the property, the sale of which was restrained, be less than the amount of the debt, in which case the damages shall be computed on the value of the property, to be ascertained and determined by the chancellor. In all cases upon the dissolution of an injunction, the damages may be ascertained by the court or chancellor, or upon reference to a master, and proof, if necessary, and decree therefor be made, and execution be issued thereon.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, arts. 2(41), 19(8); Laws, 1957, ch. 62, art. 72; 1871, § 1051; 1880, § 1918; 1892, § 572; 1906, § 623; Hemingway’s 1917, § 383; 1930, § 432; 1942, § 1352.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Dissolution as to proceedings at law.

3. Dissolution as to sale under deed of trust or mortgage.

4. Computation of damages.

5. Execution, issuance of.

1. In general.

Although in exceptional cases actual damages may be allowed in lieu of statutory damages upon dissolution of a temporary injunction, the defendants cannot recover both statutory damages and actual damages; for their recovery is limited either to one or the other. Eubanks v. W. H. Hodges & Co., 207 So. 2d 640, 1968 Miss. LEXIS 1626, 1968 Miss. LEXIS 1627 (Miss. 1968).

Where no injunction is issued this section [Code 1942, § 1352] is inapplicable, and the defendant is not entitled to the allowance of an attorney’s fee. Giles v. Desporte Ins. Agency, Inc., 253 Miss. 190, 175 So. 2d 616, 1965 Miss. LEXIS 980 (Miss. 1965).

Mortgagee under deed of trust was not entitled to 5 per cent damages under this section [Code 1942, § 1352] upon dissolution of injunction against foreclosure as to lands properly belonging to mortgagor, where, because not all the land not owned by mortgagor had been deleted from the deed of trust and the proposed foreclosure would include land not owned by the mortgagor, the injunction was retained against such contingency. Barcroft v. Armstrong, 198 Miss. 565, 21 So. 2d 817, 1945 Miss. LEXIS 230 (Miss. 1945).

Appellees were entitled to a writ of injunction to prevent foreclosure of security only upon condition that they give the injunction bond required by law, conditioned for the payment of the damages allowed by this section [Code 1942, § 1352] in the event of dissolution. Federal Land Bank v. Brumfield, 185 Miss. 487, 187 So. 522, 1939 Miss. LEXIS 138 (Miss. 1939).

Dismissal of bill establishes that injunction was wrongfully sued out, and that defendant is entitled to damages sustained by issuing of injunction. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Court’s lack of jurisdiction to grant injunction held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

That defendants were not damaged, but were only restrained from proceeding in unlawful manner, held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Liability of plaintiff upon dissolution of injunction is limited to amount of bond. Staple Cotton Co-op. Ass'n v. Borodofsky, 143 Miss. 585, 108 So. 807, 1926 Miss. LEXIS 294 (Miss. 1926).

Damages should not be awarded if at the time the injunction was obtained the complainant was entitled to the writ. Burroughs v. Jones, 79 Miss. 214, 30 So. 605, 1901 Miss. LEXIS 35 (Miss. 1901).

Where the statutory damages are claimed and allowed, they are exclusive of all other damages; if in exceptional cases actual damages are allowed, the statutory damages cannot be. Williams v. Bank of Commerce, 71 Miss. 858, 16 So. 238, 1894 Miss. LEXIS 34 (Miss. 1894); Nixon v. Seal, 78 Miss. 363, 29 So. 399, 1900 Miss. LEXIS 151 (Miss. 1900).

2. Dissolution as to proceedings at law.

Defendants, on securing dissolution of injunction involving right to approval of appeal bond superseding judgments of justice of peace, were entitled to counsel fees. Renaldo v. Lamas, 151 Miss. 207, 117 So. 528, 1928 Miss. LEXIS 295 (Miss. 1928).

No attorney’s fee allowable for defending judgment in injunction suit on appeal. Smith v. Perkins, 125 Miss. 203, 88 So. 531, 1921 Miss. LEXIS 178 (Miss. 1921).

This section [Code 1942, § 1352] provides for recovery of damages, including costs, on partial dissolution of an injunction staying proceedings on money judgment at law. Courtney Bros. v. John Deere Plow Co., 122 Miss. 232, 84 So. 185, 1920 Miss. LEXIS 431 (Miss. 1920).

The section [Code 1942, § 1352] applies exclusively to injunctions sued out by parties to the judgment and only attorney’s fees can be allowed where the injunction is sued out by a stranger to the judgment before final decree. Armstrong v. Fusz, 16 So. 532 (Miss. 1894).

3. Dissolution as to sale under deed of trust or mortgage.

The chancellor erred in denying five percent damages upon dissolving an injunction which enjoined the foreclosure of a deed of trust. James v. Jackson Production Credit Asso., 389 So. 2d 494, 1980 Miss. LEXIS 2095 (Miss. 1980).

In awarding damages upon the dissolution of an injunction staying a foreclosure sale under a deed of trust, the total damages allowable under this section was 5 per cent of the debt, and it was error to allow in addition an attorney’s fee of $200, for no other damages than statutory damages will be allowed when delay and costs have been the only injury. Giles v. Hengen, 206 So. 2d 626, 1968 Miss. LEXIS 1578 (Miss. 1968).

Where a sale under a trust deed is enjoined, though not threatened and incapable by the terms of the deed of being made for two years, an attorney’s fee is not allowable. Wynne v. Mason, 72 Miss. 424, 18 So. 422, 1894 Miss. LEXIS 145 (Miss. 1894).

The statutory damages are allowed whether the injunction be sued out by a party to the instrument or by a stranger. If by the latter they may when awarded be collected by execution. Williams v. Bank of Commerce, 71 Miss. 858, 16 So. 238, 1894 Miss. LEXIS 34 (Miss. 1894); Nixon v. Seal, 78 Miss. 363, 29 So. 399, 1900 Miss. LEXIS 151 (Miss. 1900).

Where an injunction to restrain a sale under a trust deed is dissolved, the statutory damages should be awarded, notwithstanding an appeal to settle the principles of the case is allowed with supersedeas. The five per cent damages are not allowable where the injunction is to prevent a sale by a commissioner in chancery, although under a decree foreclosing a trust deed. Fox v. Miller, 71 Miss. 598, 14 So. 145, 1893 Miss. LEXIS 125 (Miss. 1893).

4. Computation of damages.

Following the dissolution of a preliminary injunction enjoining the foreclosure of a deed of trust, a chancellor properly imposed damages under §11-13-35 amounting to 5 percent of the entire principal debt secured by the deed of trust, rather than 5 percent of the collateral debt which prompted the foreclosure. Kelso v. McGowan, 604 So. 2d 726, 1992 Miss. LEXIS 301 (Miss. 1992).

In proceedings to enjoin the foreclosure of a deed of trust, the contention that no valid injunction ever issued because of Code 1942, § 1352, providing that when an injunction obtained to stay sales under deeds of trust has been dissolved, damages shall be included in the costs awarded, because the preliminary injunction bond was insufficient, was moot where the court made the injunction permanent and the question of the assessment of damages on the bond would not occur. Carl v. Craft, 258 So. 2d 237, 1972 Miss. LEXIS 1489 (Miss. 1972), overruled in part, Tideway Oil Programs v. Serio, 431 So. 2d 454, 1983 Miss. LEXIS 2581 (Miss. 1983).

On dissolution of an injunction to stay a sale under a deed of trust, the trustee is entitled to damages in the amount of 5% of the amount realized from the sale of the property. Hans v. Wiesenburg, 237 Miss. 351, 114 So. 2d 849, 1959 Miss. LEXIS 477 (Miss. 1959).

Where there was a final judgment rendered against sureties on “replevin bond,” the amount of judgment being for $500 and costs, but where an injunction was obtained staying proceedings at law on the judgment and also enjoining the sale of property under execution on the judgment, and where the writ of injunction was dissolved by the Supreme Court, the judgment creditor was entitled to the above judgment with legal interest, together with five per cent as damages, and to all costs in all courts. Murdock Acceptance Corp. v. Smith, 222 Miss. 594, 76 So. 2d 688, 1955 Miss. LEXIS 642 (Miss. 1955).

Damages on dissolution of injunction should be assessed on value of property in case value is less than debt. Coleman v. People's Bank of Lumberton, 146 Miss. 496, 112 So. 686, 1927 Miss. LEXIS 263 (Miss. 1927).

The declaration in a suit on the bond for five per cent damages on the debt secured by the trust deed, a sale under which was enjoined, is demurrable if it fails to allege that the value of the property was not less than such debt. Barber v. Levy, 73 Miss. 484, 18 So. 797, 1895 Miss. LEXIS 100 (Miss. 1895).

5. Execution, issuance of.

Execution may issue under judgment against injunction bond, regardless of alleged error of clerk in ordering execution under prior barred judgment. Stockstill v. Campbell, 145 Miss. 528, 111 So. 93, 1927 Miss. LEXIS 134 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 315- 296–316.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 111-119 (Action for wrongful issuance of injunction; recovery on injunction bond).

13 Am. Jur. Legal Forms 2d, Mortgages § 179:456.2.

CJS.

43A C.J.S., Injunctions §§ 441-467.

§ 11-13-37. Post-injuction damages.

Where the party claiming damages shall desire, upon the dissolution of an injunction, to have the same ascertained and decreed by the chancellor or the chancery court, he shall suggest in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages; and the chancellor or court shall hear evidence, if necessary, and assess the damages, and decree the same to the party entitled thereto, for which execution may be issued, as in other cases, against the obligors in the bond given for the injunction. And if the chancellor, instead of hearing evidence as to said damages – which may be by witnesses examined before him in vacation or in term time, or by deposition, according to the circumstances – shall see proper, he may make a reference to a master to take testimony and report in such matter. But nothing herein contained shall prevent the party entitled from maintaining a suit on the injunction bond, if his damages shall not be assessed as herein provided for.

HISTORY: Codes, 1880, § 1919; 1892, § 573; 1906, § 624; Hemingway’s 1917, § 384; 1930, § 433; 1942, § 1353.

Cross References —

Injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Claim for damages.

3. On appeal.

4. Independent action on bond.

5. Award of damages.

6. —Measure of damages.

7. —Attorney fees.

1. In general.

Renewal lessee of rural school lands was entitled to recover damages against the original lessee who held over under an injunction after the expiration of the original lease, where the renewal lessee was compelled to pay a monthly rental which would have been avoided had he not been enjoined from occupying the premises. Smith v. Young, 199 Miss. 658, 24 So. 2d 746, 1946 Miss. LEXIS 237 (Miss.), modified, 199 Miss. 658, 25 So. 2d 136, 1946 Miss. LEXIS 238 (Miss. 1946).

Dismissal of suit in which temporary injunction had been issued entitled defendants to damages on the bond. Alexander v. Woods, 115 Miss. 164, 75 So. 772, 1917 Miss. LEXIS 187 (Miss. 1917).

If the bill is solely for an injunction, damages should be at once awarded upon its dissolution. Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652, 1902 Miss. LEXIS 204 (Miss. 1902).

Dismissal of bill establishes that injunction was wrongfully sued out, and that defendant is entitled to damages sustained by issuing of injunction. Yale v. Baum, 70 Miss. 225, 11 So. 879, 1892 Miss. LEXIS 80 (Miss. 1892); Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

2. Claim for damages.

Where defendant has answered and claimed specified damages, he is entitled to have them established in that suit and cannot be deprived of this right by the voluntary dismissal by complainant of the bill. Canadian & A. Mortg. & Trust Co. v. Fitzpatrick, 71 Miss. 347, 14 So. 270, 1893 Miss. LEXIS 165 (Miss. 1893).

3. On appeal.

Since there is no provision authorizing the Supreme Court to initially hear and take evidence on a motion for the allowance of damages on the dissolution of an injunction and to fix and award such damages where no award of damages on the dissolution of the injunction has been made in the lower court, a motion for the allowance of damages was overruled. Machine Prods. Co. v. Prairie Local Lodge, 230 Miss. 809, 95 So. 2d 763, 1957 Miss. LEXIS 427 (Miss. 1957).

Damages for wrongful issuance of injunction may be allowed on appeal. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, 1917 Miss. LEXIS 92 (Miss. 1917).

4. Independent action on bond.

Court’s lack of jurisdiction to grant injunction held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

That defendants were not damaged, but were only restrained from proceeding in unlawful manner, held no defense in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Members of political party could sue as individuals for expenses incurred as result of wrongful issuance of injunction restraining holding of primary elections and conventions. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Expenses not shown to be necessary and not properly separated from expenses incurred before issuance of injunction could not be allowed in action on injunction bond. Johnson v. Howard, 167 Miss. 475, 141 So. 573, 1932 Miss. LEXIS 194 (Miss. 1932).

Action on injunction bond does not lie until final decree dismissing bill. Vicksburg Waterworks Co. v. Vicksburg, 99 Miss. 132, 54 So. 852, 1910 Miss. LEXIS 26 (Miss. 1910).

Actions on injunction-bonds are not maintainable until the final disposition of the causes in which they were given. Yazoo & M. V. R. Co. v. Adams, 78 Miss. 977, 30 So. 44, 1901 Miss. LEXIS 152 (Miss. 1901).

The right to sue at law on the bond is not affected by the failure of the chancery court to assess damages. Barber v. Levy, 73 Miss. 484, 18 So. 797, 1895 Miss. LEXIS 100 (Miss. 1895).

If proof of damages claimed under the statute be insufficient, it is not error to disallow the claim without prejudice to a suit on the bond. Davis v. Hart, 66 Miss. 642, 6 So. 318, 1889 Miss. LEXIS 159 (Miss. 1889).

The section [Code 1942, § 1353] does not authorize an independent suit on the bond before final decree. Goodbar & Co. v. Dunn, 61 Miss. 624, 1884 Miss. LEXIS 143 (Miss. 1884).

5. Award of damages.

Motocross racing track owner was not entitled to money damages under Miss. Code Ann. §11-13-37 where the owner did not file a motion to dissolve or modify either the TRO or preliminary injunction enjoining him from holding racing events and instead allowed them to expire on their own terms, and the record contained substantial credible evidence to support the chancellor’s issuance of both the TRO and the preliminary injunction and to support her finding that neither the TRO nor the preliminary injunction ever wrongfully enjoined the owner. Lauderdale v. Desoto Cnty., 196 So.3d 1091, 2016 Miss. App. LEXIS 456 (Miss. Ct. App. 2016).

Damages may be awarded on bond upon dissolution of injunction where injunction is only relief sought, but where injunction is merely ancillary, award of damages should await termination of suit. Staple Cotton Co-op. Ass'n v. Borodofsky, 139 Miss. 368, 104 So. 91, 1925 Miss. LEXIS 141 (Miss. 1925).

Upon dissolution of injunction restraining execution sale of personalty, personal decree should not be rendered against obligors on injunction bond for amount of the judgment or debt, but only for such damages as defendant may have sustained. Gotelli v. Fountain, 127 Miss. 577, 90 So. 250, 1921 Miss. LEXIS 260 (Miss. 1921).

A decree dissolving an injunction and awarding damages is interlocutory. Wilson v. Pugh, 61 Miss. 449, 1884 Miss. LEXIS 108 (Miss. 1884).

6. —Measure of damages.

This section [Code 1942, § 1353], in providing that a person enjoined could have his damages ascertained in the proceeding in which the injunction was granted, does not allow an additional security for damages over and above the face amount of the bond. Broome v. Hattiesburg Bldg. & Trades Council, 206 So. 2d 184, 1967 Miss. LEXIS 1243 (Miss. 1967).

Damages from injunction preventing delivery of lumber is difference in value when injunction sued out and when dissolved, with interest on the difference for intervening period. Thornton-Claney Lumber Co. v. J. M. O'Quin & Sons, 115 Miss. 857, 76 So. 732, 1917 Miss. LEXIS 271 (Miss. 1917).

7. —Attorney fees.

Chancellor abused her discretion in awarding a motocross racing track owner attorney’s fees under Miss. Code Ann. §11-13-37 (Rev. 2004) and Miss. R. Civ. P. 65(c) where the record reflected that no permanent injunction ever issued on the county’s amended application for such relief, substantial credible evidence supported the TRO and the preliminary injunction enjoining the owner from holding racing events in violation of a conditional use permit, and thus, the record reflected that the owner was never wrongfully enjoined or restrained. Lauderdale v. Desoto Cnty., 196 So.3d 1091, 2016 Miss. App. LEXIS 456 (Miss. Ct. App. 2016).

Vendor and a former employee of a company in the pipeline services business were entitled to an award of attorneys’ fees and expenses because the company filed its application for a preliminary injunction against them frivolously and in bad faith, regardless of the amount of the injunction bond posted by the company. Expro Ams., LLC v. Walters, 179 So.3d 1010, 2015 Miss. LEXIS 574 (Miss. 2015).

Chancellor was well within his authority to award attorney’s fees and damages to property owners where the city initiated the action to have the owners remove the fence from their own property, and the owners were forced to hire attorneys, hire surveyors, and incur expenses, while doing nothing to violate the city’s rights; thus, the city was responsible for the expenses the owners incurred. City of Waynesboro v. McMichael, 856 So. 2d 474, 2003 Miss. App. LEXIS 285 (Miss. Ct. App.), cert. denied, 860 So. 2d 1223, 2003 Miss. LEXIS 848 (Miss. 2003).

When injunction is sought as ancillary remedy to other relief and hearing on injunction is not had upon motion to dissolve separate and apart from hearing upon merits, no counsel fees will be allowed. Coleman v. Lucas, 206 Miss. 274, 39 So. 2d 879, 1949 Miss. LEXIS 260 (Miss. 1949).

When whole relief sought is controlled by injunction and any incidental relief flows from and is dependent upon retaining injunction, allowance of solicitor’s fees upon dissolution of injunction is entirely proper. Coleman v. Lucas, 206 Miss. 274, 39 So. 2d 879, 1949 Miss. LEXIS 260 (Miss. 1949).

Solicitor’s fees are not properly awarded where injunction is ancillary to other relief asked and where the entire matter is heard upon the merits. Smith v. Young, 199 Miss. 658, 24 So. 2d 746, 1946 Miss. LEXIS 237 (Miss.), modified, 199 Miss. 658, 25 So. 2d 136, 1946 Miss. LEXIS 238 (Miss. 1946).

Supreme Court was without power to transfer an award of solicitor’s fees erroneously awarded on dissolution of injunction in suit by former lessee of rural school lands to compel reopening of the matter of a renewal lease of the same lands granted to another, as a credit upon actual damages sustained by the renewal lessee by virtue of the injunction, even though such damages were erroneously disallowed by the trial court. Smith v. Young, 199 Miss. 658, 24 So. 2d 746, 1946 Miss. LEXIS 237 (Miss.), modified, 199 Miss. 658, 25 So. 2d 136, 1946 Miss. LEXIS 238 (Miss. 1946).

Defendant was not entitled to attorney’s fees even though dissolution of an injunction was procured, where the suit was both for injunctive relief and the recovery of damages, and the motion to dissolve the injunction was not heard in advance of the trial on the merits. Capital Electric Power Ass'n v. Franks, 199 Miss. 226, 23 So. 2d 922, 1945 Miss. LEXIS 283 (Miss. 1945).

Allowance to county law enforcement officers of counsel fees in the sum of $800 in final decree dissolving injunction against the holding of an election to determine whether the transportation, etc. of wines and beer should be excluded from the county, did not constitute an abuse of discretion. Sparks v. Reddoch, 196 Miss. 609, 18 So. 2d 450, 1944 Miss. LEXIS 241 (Miss. 1944).

Amount of solicitor’s fees in dissolving wrongful injunction is left to chancellor’s discretion. New Orleans, M. & C. R. Co. v. Martin, 105 Miss. 230, 62 So. 228, 1913 Miss. LEXIS 196 (Miss. 1913); Sparks v. Reddoch, 196 Miss. 609, 18 So. 2d 450, 1944 Miss. LEXIS 241 (Miss. 1944).

Where complainant, a construction company, filed a bill in chancery to obtain an injunction against a city to prevent its awarding a construction contract to another construction firm because the complainant was the lowest and best bidder, and also filed an application with a supreme court judge to issue a temporary injunction to preserve the status quo until the time of the hearing, at the same time also obtaining a restraining order of the chancery court, and at the hearing before the supreme court judge the application for temporary injunction was denied, and thereafter a bill of complaint in the chancery court was dismissed in view of the fact that the city had in the meantime awarded the contract to the complainant, the allowance to the city of attorney’s fees as damages arising out of the suit for the temporary injunction and dissolution thereof was erroneous. Edward E. Morgan Co. v. Natchez, 188 Miss. 781, 196 So. 251, 1940 Miss. LEXIS 72 (Miss. 1940).

Attorney’s fees not element of defendant’s damages for wrongful issuance of injunction merely ancillary to relief sought in bill of complaint. Staple Cotton Co-op. Ass'n v. Buckley, 141 Miss. 483, 106 So. 747, 1926 Miss. LEXIS 440 (Miss. 1926).

Attorney’s fees not allowed where dissolution of injunction not sought until trial on merits. Howell v. McLeod, 127 Miss. 1, 89 So. 774, 1921 Miss. LEXIS 194 (Miss. 1921).

Attorney’s fees not allowable on dissolution of injunction to enforce illegal agreement. Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, 1921 Miss. LEXIS 121 (Miss. 1921).

Attorney’s fees for defending suit on merits not allowable as damages when injunction is a mere incident thereto. Mims v. Swindle, 124 Miss. 686, 87 So. 151, 1920 Miss. LEXIS 557 (Miss. 1920); Hunter v. Hankinson, 141 Miss. 279, 106 So. 514, 1925 Miss. LEXIS 229 (Miss. 1925).

Attorney’s fees recoverable for wrongful suing out of injunction do not include services in assessing damages after dissolution of the injunction. Thornton-Claney Lumber Co. v. J. M. O'Quin & Sons, 115 Miss. 857, 76 So. 732, 1917 Miss. LEXIS 271 (Miss. 1917).

Upon dissolution of injunction against foreclosure of trust deed obtained after advertisement, defendant was entitled to recover counsel fee and printer’s fees for the advertisement. Gulfport Land Improv. Co. v. Augur, 95 Miss. 292, 48 So. 722 (Miss. 1909).

Upon dissolution of injunction, defendant entitled to attorney’s fees for services in both trial and appellate courts. Curphy & Mundy v. Terrell, 89 Miss. 624, 42 So. 235, 1906 Miss. LEXIS 22 (Miss. 1906).

RESEARCH REFERENCES

ALR.

Necessary defendants in independent action on injunction bond. 55 A.L.R.2d 545.

Recovery of damages resulting from wrongful issuance of injunction as limited to amount of bond. 30 A.L.R.4th 273.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 315- 296–316.

14 Am. Jur. Pl & Pr Forms (Rev), Injunctions, Forms 111-119 (Action for wrongful issuance of injunction; recovery on injunction bond).

§ 11-13-39. Effect of dissolution of injunction on bill of complaint.

When, on motion, an injunction shall be wholly dissolved, the bill of complaint shall be dismissed of course with costs, unless sufficient cause be shown against its dismissal at the next succeeding term of the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 2(40); 1857, ch. 62, art. 69; 1871, § 1048; 1880, § 1917; 1892, § 570; 1906, § 621; Hemingway’s 1917, § 381; 1930, § 434; 1942, § 1354.

Cross References —

Injunctions, see Miss. R. Civ. P. 65.

JUDICIAL DECISIONS

1. In general.

2. Time for dismissal.

3. Appeal.

1. In general.

It is error, on dissolving injunction on motion and demurrer to bill, to at once enter judgment on injunction bond. Bullen v. Smith, 146 Miss. 316, 111 So. 454, 1927 Miss. LEXIS 190 (Miss. 1927).

An order dissolving an injunction, on motion for that purpose, does not of itself dismiss the bill. Pickle v. Holland, 24 Miss. 566, 1852 Miss. LEXIS 101 (Miss. 1852).

2. Time for dismissal.

Dismissal of complaint upon sustaining demurrer thereto and dissolving injunction held not prejudicial. Evans v. Money, 104 Miss. 264, 61 So. 309, 1913 Miss. LEXIS 26 (Miss. 1913).

Where the bill is filed solely for an injunction, the dissolution of the injunction carries with it the dismissal of the bill. Otherwise, the bill is retained until final hearing. Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652, 1902 Miss. LEXIS 204 (Miss. 1902).

The object of the statute is to give the complainant an opportunity to amend or to take further proof; but where the case is disposed of on its merits, both sides having taken their proofs, the case can be dismissed at once. Bass v. Nelms, 56 Miss. 502, 1879 Miss. LEXIS 154 (Miss. 1879).

On mere motion to dissolve, on bill and answer, it is error, on sustaining the motion, to dismiss the bill at once. Drane v. Winter, 41 Miss. 517, 1867 Miss. LEXIS 23 (Miss. 1867); Guion v. Pickett, 42 Miss. 77, 1868 Miss. LEXIS 35 (Miss. 1868), limited, Jones v. Salmon, 128 Miss. 508, 91 So. 199, 1922 Miss. LEXIS 139 (Miss. 1922); Maury v. Smith, 46 Miss. 81, 1871 Miss. LEXIS 134 (Miss. 1871).

3. Appeal.

Strong v. Harrison, 62 Miss. 61, 1884 Miss. LEXIS 18 (Miss. 1884).

Decree directing dismissal of bill in vacation on sustaining demurrer held not prejudicial, where decision on demurrer practically amounted to final disposition, and appellants declined to amend or plead further, but prayed for and were granted appeal. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Decree vacating temporary injunction and dismissing bill was final and appealable. Anderson v. Henderson, 103 Miss. 211, 60 So. 137, 1912 Miss. LEXIS 157 (Miss. 1912).

RESEARCH REFERENCES

CJS.

43A C.J.S., Injunctions § 391.

§ 11-13-41. Victims of stalking and sexual assault exempt from payment of fees related to filing for injunctive relief.

  1. A victim of stalking, as defined in Section 97-3-107, or sexual assault, as defined in Section 97-3-65 or 97-3-95, who files an action seeking injunctive relief preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to the victim against the perpetrator of that offense, shall not be assessed any fees related to the filing of such request, the issuance of any process of court or the issuance of any order providing such protection.
  2. The court, upon issuing any such relief, shall assess costs of court to the perpetrator of the offense. In the event the court determines the request is frivolous, the court shall assess the costs of court to the petitioner.

HISTORY: Laws, 2009, ch. 412, § 1, eff from and after passage (approved Mar. 20, 2009).

Cross References —

Waiver of filing fees for petition to seek relief in domestic abuse cases, see §93-21-7.

Chapter 15. Arbitration and Award

In General

§ 11-15-1. Who may submit to arbitration.

All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission. In such case, however, should the parties agree upon a court without jurisdiction of the subject matters of the award, the judgment shall be rendered by the court having jurisdiction in the county of the residence of the party, or some one of them, against whom the award shall be made.

HISTORY: Codes, 1892, § 95; 1906, § 96; Hemingway’s 1917, § 83; 1930, § 81; 1942, § 279.

Cross References —

Definition of the term “infant,” see §1-3-21.

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

Partition of property by arbitration, see §11-21-1.

Arbitration of motor vehicle dealer contracts, see §63-17-133.

Arbitration with state highway department, see §65-1-91.

JUDICIAL DECISIONS

1. In general.

2. Subjects of arbitration.

3. Persons who may submit to arbitration.

4. Jurisdiction of courts.

5. Revocation of submission before award.

1. In general.

Law client’s fee dispute with a law firm that had previously represented her was subject to arbitration pursuant to Miss. Code Ann. §11-15-1 where the legal services contracts contained arbitration clauses that were valid and enforceable, the fee dispute was within the scope of arbitration, and there was no procedural unconscionability or other legal constraint that precluded enforcement of the arbitration clause. Slater-Moore v. Goeldner, 113 So.3d 521, 2013 Miss. LEXIS 149 (Miss. 2013).

An arbitrator is not required to make separate or detailed findings as to the reasons for an arbitration award. When parties agree to arbitration, they contract for an award without a formal, reasoned opinion and, more specifically, without findings of fact or conclusions of law. Absent a contractual agreement to the contrary, the parties waive any right to an explanation or clarification. Craig v. Barber, 524 So. 2d 974, 1988 Miss. LEXIS 214 (Miss. 1988).

Declaration in suit on award in arbitration which alleges the material facts in reference thereto, and makes as exhibits the contract, the agreement to arbitrate and award thereon, held to state cause of action. Stout v. W. M. Garrard & Co., 128 Miss. 418, 91 So. 33, 1922 Miss. LEXIS 125 (Miss. 1922).

The legal effect of arbitration agreement and finding therein is to make a compromise settlement of the matters in dispute, and the effect thereof is to merge the original causes of action and defenses into the written award and make that the conclusive source of rights and liabilities of the parties. Yarbro v. Purser, 114 Miss. 75, 74 So. 425, 1917 Miss. LEXIS 1 (Miss. 1917).

In action on contract it was error to exclude arbitration agreement and finding of arbitrators. Yarbro v. Purser, 114 Miss. 75, 74 So. 425, 1917 Miss. LEXIS 1 (Miss. 1917).

2. Subjects of arbitration.

Arbitrators, being the chosen judges of the parties, are, in general, to be deemed judges of the law as well as the facts applicable to the case submitted to them; and in the absence of a reservation in the submission, the parties are presumed to agree that every question both as to law and fact necessary for the decision is to be included in the arbitration. Memphis & C. R. R. Co. v. Scruggs, 50 Miss. 284, 1874 Miss. LEXIS 57 (Miss. 1874).

Whether the arbitrators exceeded their power in making an award involves the question of what power was conferred upon them by the agreement of submission. Memphis & C. R. R. Co. v. Scruggs, 50 Miss. 284, 1874 Miss. LEXIS 57 (Miss. 1874).

3. Persons who may submit to arbitration.

Parties to a construction agreement, as a matter of right to contract, may in advance bind themselves to compulsory arbitration of disputes that arise between them. Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

The guardian may submit the controversy of his ward in matters in which he is authorized to give acquittances. Goleman v. Turner, 22 Miss. 118, 1850 Miss. LEXIS 109 (Miss. 1850); McComb v. Turner, 22 Miss. 119, 1850 Miss. LEXIS 110 (Miss. 1850).

The guardian may submit the controversy of his ward in matters in which he is authorized to give acquittances. Goleman v. Turner, 22 Miss. 118, 1850 Miss. LEXIS 109 (Miss. 1850); McComb v. Turner, 22 Miss. 119, 1850 Miss. LEXIS 110 (Miss. 1850).

A guardian ad litem cannot bind his ward by submitting the suit to arbitration. Fort v. Battle, 21 Miss. 133, 1849 Miss. LEXIS 153 (Miss. 1849).

An attorney at law, as such, has no power to submit his client’s controversy which is not in suit to arbitration. Jenkins v. Gillespie, 18 Miss. 31, 1848 Miss. LEXIS 49 (Miss. 1848).

4. Jurisdiction of courts.

The jurisdiction of a court of equity to enforce specific performance of awards involves the exercise of its ordinary jurisdiction as applied to the specific performance of agreements and not the exercise of any jurisdiction peculiar to awards, and accordingly many, if not all, the principles applicable to ordinary suits of that nature must apply. Memphis & C. R. R. Co. v. Scruggs, 50 Miss. 284, 1874 Miss. LEXIS 57 (Miss. 1874).

While a court of equity will not interfere to enforce an award involving merely the payment of money, there being an adequate remedy at law in such case, a court of equity has jurisdiction to enforce specific execution of an award concerning real estate or of an agreement for the purchase and sale of real estate, notwithstanding that it involves the enforcement of an award to pay money. Memphis & C. R. R. Co. v. Scruggs, 50 Miss. 284, 1874 Miss. LEXIS 57 (Miss. 1874).

5. Revocation of submission before award.

Chancery court erred in ordering specific enforcement of a clause in a collective bargaining agreement between a company and the union which provided for arbitration of future disputes, since the effect of the company’s refusal to submit the matters to arbitration was to revoke the arbitration clause insofar as it applied to the disputes involved in the action. Machine Prods. Co. v. Prairie Local Lodge, 230 Miss. 809, 95 So. 2d 763, 1957 Miss. LEXIS 427 (Miss. 1957).

Either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made, regardless of whether the submission was by deed, or that the agreement contained a provision against revocability, or that valuable consideration was given for the agreement. Jones v. Harris, 59 Miss. 214, 1881 Miss. LEXIS 105 (Miss. 1881), overruled, IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96, 1998 Miss. LEXIS 124 (Miss. 1998).

OPINIONS OF THE ATTORNEY GENERAL

There is no requirement that a binding arbitration provision be incorporated as a part of a standard insurance policy form. Dale, March 17, 2000, A.G. Op. #2000-0100.

A metropolitan sewer authority is not a person as defined by §1-3-39 and, therefore, is not capable of entering into agreements for binding arbitration under §11-15-1. Clark, Apr. 26, 2002, A.G. Op. #02-0184.

The West Rankin Metropolitan Sewer Authority does not have specific authority in its enabling legislation or general legislation to enter into binding arbitration agreements; however, it may seek amendment of the local and private act by the legislature to include the authority to enter into binding arbitration agreements in specific circumstances. Clark, June 7, 2002, A.G. Op. #02-0295.

RESEARCH REFERENCES

ALR.

Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him. 50 A.L.R.2d 1268.

Constitutionality of arbitration statutes. 55 A.L.R.2d 432.

Death of party before award as revocation or termination of submission to arbitration. 63 A.L.R.2d 754.

Arbitration of disputes within close corporation. 64 A.L.R.2d 643.

Application of provisions of arbitration statutes excluding contracts for labor or services. 64 A.L.R.2d 1336.

Disqualification of arbitrator by court or stay of arbitration proceedings for interest, bias, prejudice, collusion, or fraud of arbitrators. 65 A.L.R.2d 755.

Necessity that arbitrators, make specific or detailed findings of fact or conclusions of law. 82 A.L.R.2d 969.

Enforcement of contractual arbitration clause as affected by expiration of contract prior to demand for arbitration. 5 A.L.R.3d 1008.

Validity and effect, and remedy in respect, of contractual stipulation to submit disputes to arbitration in another jurisdiction. 12 A.L.R.3d 892.

Validity and construction of provision for arbitration of disputes as to alimony for support payments, or child visitation or custody matters. 18 A.L.R.3d 1264.

Breach or repudiation of contract as affecting right to enforce arbitration clause therein. 32 A.L.R.3d 377.

Comment Note: Determination of validity of arbitration award under requirement that arbitrators shall pass on all matters submitted. 36 A.L.R.3d 649.

Demand for or submission to arbitration as affecting enforcement of mechanics’ lien. 73 A.L.R.3d 1042.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Statute of limitations as bar to arbitration under agreement. 94 A.L.R.3d 533.

Conflict of laws as to validity and effect of arbitration provision in contract for purchase or sale of goods, products, or services. 95 A.L.R.3d 1145.

Defendant’s participation in action as waiver of right to arbitration of dispute involved therein. 98 A.L.R.3d 767.

Appealability of state court’s order or decree compelling or refusing to compel arbitration. 6 A.L.R.4th 652.

Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 A.L.R.4th 774.

Attorney’s submission of dispute to arbitration, or amendment of arbitration agreement, without client’s knowledge or consent. 48 A.L.R.4th 127.

Which statute of limitations applies to efforts to compel arbitration of a dispute. 77 A.L.R.4th 1071.

Arbitration agreement or other private contract as precluding filing of unfair labor practice charges with National Labor Relations Board. 6 A.L.R. Fed. 272.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 18- 27.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration And Award, Forms 1 et seq.

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:21 et seq. (future disputes; agreements and contract provisions).

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:31 et seq. (Future disputes).

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:123 et seq. (present disputes; submission).

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:133-23:155, 23:172-23:176 (Present disputes).

2A Am. Jur. Legal Forms 2d, Arbitration and Award § 23:146 (present disputes-filing agreement for arbitration with clerk of appropriate court).

27 Am. Jur. Trials 621, Resolving Real Estate Disputes Through Arbitration.

44 Am. Jur. Trials 507, Alternative Dispute Resolution: Commercial Arbitration.

46 Am. Jur. Trials 231, Alternative Dispute Resolution for Banks and Other Financial Institutions.

CJS.

6 C.J.S., Arbitration §§ 32–34.

Law Reviews.

An Overview of Mississippi’s Construction Arbitration Act. 53 Miss. L. J. 501, September, 1983.

§ 11-15-3. Qualifications of arbitrators.

A person shall not act as an arbitrator where he is interested in the subject matter in dispute, nor where he is related, by consanguinity or affinity, to any of the parties to the arbitration.

HISTORY: Codes, 1892, § 96; 1906, § 97; Hemingway’s 1917, § 84; 1930, § 82; 1942, § 280.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 109- 119.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration And Award, Forms 51 et seq.

4 Am. Jur. Proof of Facts 2d, Bias of Arbitrator, §§ 8 et seq. (proof of bias of arbitrator).

CJS.

6 C.J.S., Arbitration §§ 136–141, 143.

§ 11-15-5. Arbitrators to appoint time of meeting and notify parties.

The arbitrators selected by agreement of the parties shall appoint a time and place for the hearing, and notify the parties thereof, and shall adjourn the hearing from time to time, as may be necessary, and on the application of either party, and for good cause may postpone the hearing to a time not extending beyond the day fixed in the submission, if a day be fixed, for rendering the award.

HISTORY: Codes, 1892, § 97; 1906, § 98; Hemingway’s 1917, § 85; 1930, § 83; 1942, § 281.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

ALR.

Allowance, in replevin action, of loss of profits from deprivation of use of detained property. 48 A.L.R.2d 1053.

§ 11-15-7. Notice to parties; form.

The notice which the arbitrators shall give to the parties of the time and place of the hearing of the controversy shall be in writing, and may be in the following form, viz:

“To and and [naming all of the parties] “You are notified that the undersigned arbitrators, agreed upon by you to determine the controversy mentioned in your articles of submission, of date the day of A.D. , have fixed upon and will hear and consider your said controversy on the day of A.D. , at “ “ “ “Arbitrators.”

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Such notice shall be served by delivering to each of the parties a copy thereof at least one whole day before the hearing, and shall be given to the parties by one of the arbitrators, who shall indorse on said notice that he has served the same by giving the party or parties so served a true copy thereof; but, if the parties appear, the want of notice shall not affect the proceedings.

HISTORY: Codes, 1892, § 98; 1906, § 99; Hemingway’s 1917, § 86; 1930, § 84; 1942, § 282.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

Where the parties to an arbitration appeared by counsel at the hearing before the arbitrators, it is immaterial that the record fails to show that they were notified to so appear. Mississippi Cotton Oil Co. v. Buster, 84 Miss. 91, 36 So. 146, 1904 Miss. LEXIS 12 (Miss. 1904).

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolutions §§ 134, 136- 147.

CJS.

6 C.J.S., Arbitration §§ 177.

§ 11-15-9. Arbitrators to be sworn.

Before proceeding to hear any testimony in relation to the matter, the arbitrators shall be sworn, by some officer authorized to administer an oath, to faithfully and impartially hear and determine the matters submitted to them, according to the evidence and the manifest justice and equity of the case, to the best of their judgment, without favor or affection.

HISTORY: Codes, 1892, § 99; 1906, § 100; Hemingway’s 1917, § 87; 1930, § 85; 1942, § 283.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 137, 138.

CJS.

6 C.J.S., Arbitration § 144.

§ 11-15-11. Arbitrators’ meetings; procedure.

All arbitrators must meet together and hear all of the allegations and evidence of the parties pertinent or material to the cause; but the parties may mutually waive, in writing, the appearance of all of the arbitrators named in the articles of submission and consent for those present to proceed, or they may, in like manner, substitute other persons for the absent one. An award made, and every other act done, by a majority of the arbitrators shall be valid, unless the concurrence of all or a certain number of the arbitrators to the award or acts be expressly required in the submission.

HISTORY: Codes, 1892, § 100; 1906, § 101; Hemingway’s 1917, § 88; 1930, § 86; 1942, § 284.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

All arbitrators must participate, but majority may make award. Stout v. W. M. Garrard & Co., 128 Miss. 418, 91 So. 33, 1922 Miss. LEXIS 125 (Miss. 1922).

On matters agreed to be submitted to three arbitrators, an award made on the investigation of only two is void. Harvin v. Denton, 87 Miss. 238, 39 So. 456, 1905 Miss. LEXIS 108 (Miss. 1905).

Whether the arbitrators exceeded their power in making an award involves the question of what power was conferred upon them by the agreement of submission. Memphis & C. R. R. Co. v. Scruggs, 50 Miss. 284, 1874 Miss. LEXIS 57 (Miss. 1874).

RESEARCH REFERENCES

ALR.

Refusal of arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Modern status of rules respecting concurrence of all arbitrators as condition of binding award under private agreement not specifying unanimity. 83 A.L.R.3d 996.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 150 et seq.

CJS.

6 C.J.S., Arbitration §§ 174, 175, 192.

§ 11-15-13. Swearing of witnesses.

All witnesses before arbitrators shall be sworn as if before a court, and the parties shall have the benefit of legal process to compel the attendance of witnesses, which may be issued by the clerk of any court or a justice of the peace, and shall require the witness to attend before the arbitrators on a day and at a place certain to be named in the subpoena.

HISTORY: Codes, 1892, § 101; 1906, § 102; Hemingway’s 1917, § 89; 1930, § 87; 1942, § 285.

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 —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration and Award, Forms 61 et seq.

CJS.

6 C.J.S., Arbitration §§ 188, 189.

§ 11-15-15. Service of process.

Process returnable to the arbitrators may be served as provided for in the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1892, § 102; 1906, § 103; Hemingway’s 1917, § 90; 1930, § 88; 1942, § 286; Laws, 1991, ch. 573, § 31, eff from and after July 1, 1991.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

ALR.

Patient’s failure to reveal medical history to physician as contributory negligence or assumption of risk in defense of malpractice action. 33 A.L.R.4th 790.

§ 11-15-17. Contempt.

If any person duly subpoenaed to appear before arbitrators and testify, shall fail to do so, he shall be guilty of contempt of the court from which, or by whose clerk, the process issued, and upon complaint thereto of the party injured, the court or justice may punish the person for such contempt as in other like cases.

HISTORY: Codes, 1892, § 103; 1906, § 104; Hemingway’s 1917, § 91; 1930, § 89; 1942, § 287.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

RESEARCH REFERENCES

ALR.

Patient’s failure to reveal medical history to physician as contributory negligence or assumption of risk in defense of malpractice action. 33 A.L.R.4th 790.

§ 11-15-19. Award enforcement process.

To entitle an award to be enforced according to the provisions of this chapter, it must be made in writing, and be signed by the arbitrators making the same and who concur therein. The arbitrators shall attach to the award the articles of submission, the notice served on the parties, with indorsements of service, and, if the parties appear, that fact should be noted in the award itself; and they shall give a duplicate of the whole to each of the parties to the controversy, and the duplicates shall each be treated as originals.

HISTORY: Codes, 1892, § 104; 1906, § 105; Hemingway’s 1917, § 92; 1930, § 90; 1942, § 288.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

In a mobile home owner’s suit over alleged defects in materials and workmanship, although no document entitled “articles of submission” was in the record or the procedure for affirming the arbitrator’s award in favor of the mobile home seller, manufacturer, and creditor, the substance of each requirement of Miss. Code Ann. §11-15-19 (1972) was found within the record and the findings of fact the arbitrator submitted to the trial court. Margerum v. Bud's Mobile Homes, Inc., 823 So. 2d 1167, 2002 Miss. LEXIS 252 (Miss. 2002).

The award is an extinguishment of all causes of action submitted. Jones v. Harris, 58 Miss. 293, 1880 Miss. LEXIS 124 (Miss. 1880).

Where the arbitrators reduce their findings to writing and sign them in each other’s presence at the same time and place, it is competent for counsel to agree that the award so drawn may afterwards be put in proper form, and in such case it is no objection to the formal award that it was not signed by the arbitrators at the same time and place. Jones v. Harris, 58 Miss. 293, 1880 Miss. LEXIS 124 (Miss. 1880).

It is essential to the validity of an award that it shall be final and complete, responsive to all the matters of difference included in the submission. (Said of a common law award.) Rhodes v. Hardy, 53 Miss. 587, 1876 Miss. LEXIS 120 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev ed), Arbitration and Award, Form 91.01 (Award; subsequent proceedings).

CJS.

6 C.J.S., Arbitration §§ 193, 194.

§ 11-15-21. Confirmation of award by court.

Upon presentation of the articles of submission and the award to the court designated in the submission or the court having jurisdiction of the subject matter of the award, the court shall, upon motion, confirm the award, unless the same be vacated or modified, or a decision thereon be postponed, as hereinafter provided. An award shall not be confirmed unless notice in writing of such motion shall have been served on the adverse party at least five days before the hearing, to be served as other process; but such motion shall not be made after the expiration of one year from the making and publication of the award.

HISTORY: Codes, 1892, § 105; 1906, § 106; Hemingway’s 1917, § 93; 1930, § 91; 1942, § 289.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

Employer was entitled to confirmation of an arbitration award and for entry of a judgment against a former employee because the employee’s failure to file an action to vacate the arbitration award in a timely manner barred the employee’s opposition to the motion. Wells Fargo Advisors, LLC v. Runnels, 126 So.3d 137, 2013 Miss. App. LEXIS 781 (Miss. Ct. App. 2013).

In a mobile home owner’s suit over alleged defects in materials and workmanship, although no document entitled “articles of submission” was in the record or the procedure for affirming the arbitrator’s award in favor of the mobile home seller, manufacturer, and creditor, the substance of each requirement of Miss. Code Ann. §11-15-19 (1972) was found within the record and the findings of fact the arbitrator submitted to the trial court. Margerum v. Bud's Mobile Homes, Inc., 823 So. 2d 1167, 2002 Miss. LEXIS 252 (Miss. 2002).

RESEARCH REFERENCES

ALR.

Demand for or submission to arbitration as affecting enforcement of mechanics’ lien. 73 A.L.R.3d 1042.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration And Award, Forms 101 et seq.

CJS.

6 C.J.S., Arbitration §§ 245, 246.

§ 11-15-23. Vacation of award; grounds.

Any party complaining of an award may move the court to vacate the same upon any of the following grounds:

That such award was procured by corruption, fraud, or undue means;

That there was evident partiality or corruption on the part of the arbitrators, or any one of them;

That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;

That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

HISTORY: Codes, 1892, § 106; 1906, § 107; Hemingway’s 1917, § 94; 1930, § 92; 1942, § 290.

Cross References —

Motion to vacate award, see §11-15-27.

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

Prohibition against arbitrators accepting bribes, see §97-9-5.

JUDICIAL DECISIONS

1. In general.

2. Specific grounds for vacating award.

3. Impeachment of award.

4. Contractual expansion of appeal rights.

1. In general.

Standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act (FAA) is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error; the State arbitration act presents nearly identical requirements and exceptions for review, and the supreme court embraces this standard of review to evaluate properly the application of the statutes, while reviewing the trial court’s actions for error. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Circuit court did not err by denying a client’s motion to vacate an arbitration award because it properly found that the arbitrator did not exceed his powers; the circuit court concluded nothing in the record indicated that he refused or failed to review the case law, nothing indicated he had any preconceived notions or opinions, and nothing indicated what evidence he focused on or did not focus on. Paige Elec. Co. v. Davis & Feder, P.A., 231 So.3d 201, 2017 Miss. App. LEXIS 200 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 490 (Miss. 2017).

Circuit judge committed reversible error by denying an employer’s motion to confirm an arbitration award and for entry of a judgment because the arbitration award did not fall under any of the four instances that would have allowed the award to be vacated. Wells Fargo Advisors, LLC v. Runnels, 126 So.3d 137, 2013 Miss. App. LEXIS 781 (Miss. Ct. App. 2013).

It is not legitimate, in exceptions to an arbitration award, to inquire into the original merits in favor of one party or the other, or to show that in evidence the award ought to have been different or that the law of the case was misconceived or misapplied, or that the decision, in view of all the facts and circumstances, was unjust. Thus, the scope of judicial review is much narrower than in cases where a party challenges the evidentiary basis for a trial court’s decision. Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

Only grounds for setting an arbitration award aside are grounds prescribed by this section [Code 1942, § 290]. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Nothing in an award relative to merits of controversy as submitted, however wrongly decided, whether errors of law or fact, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections as defined in this section [Code 1942, § 290] and Code 1942, § 291. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Either party to a written agreement for submission to arbitration has the right to revoke the submission before award is made, regardless of whether the submission was by deed, or that the agreement contained a provision against revocability, or that valuable consideration was given for the agreement. Jones v. Harris, 59 Miss. 214, 1881 Miss. LEXIS 105 (Miss. 1881), overruled, IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96, 1998 Miss. LEXIS 124 (Miss. 1998).

2. Specific grounds for vacating award.

Circuit court properly confirmed an arbitration award entered in favor of an employer because the employees failed to prove that the arbitrator was guilty of misconduct since a phone call between the arbitrator and the employees’ attorney was not substantial or material; Chalk v. Regions Ins., Inc., 181 So.3d 970, 2015 Miss. LEXIS 500 (Miss. 2015).

Circuit court properly confirmed an arbitration award entered in favor of an employer because employees failed to show how an arbitration award was procured by undue means. Chalk v. Regions Ins., Inc., 181 So.3d 970, 2015 Miss. LEXIS 500 (Miss. 2015).

Arbitrator did not exceed his powers because employees agreed to restrictive covenants, to the damages formula, and to arbitrate the employer’s claims that they had breached the covenants and owed damages under the formula, and the employees fully participated in the arbitration; the employees waived the right to object because they agreed that the formula was one for liquidated damages, a legal remedy and thus, within the arbitrator’s power to award. Chalk v. Regions Ins., Inc., 181 So.3d 970, 2015 Miss. LEXIS 500 (Miss. 2015).

Mississippi’s statute governing judicial review of arbitrator’s decisions, Miss. Code Ann. §11-15-23 (Rev. 2004), leaves no room for the application of the Doctrine of Manifest Disregard; even if the arbitrator mistakenly refused to consider parol evidence of a term of a settlement agreement, such error was insufficient to constitute undue means or an exceeding of the arbitrator’s powers as required by §11-15-23. Robinson v. Henne, 115 So.3d 797, 2013 Miss. LEXIS 352 (Miss. 2013).

Chancellor erred in setting aside an arbitration award because, although undue means and unresolved issues could be valid reasons for setting aside an award, the chancellor’s order failed to articulate any “undue means” utilized or any specific deficiencies with the arbitrators’ thorough analysis and valuation methods. Bailey Brake Farms, Inc. v. Trout, 116 So.3d 1064, 2013 Miss. LEXIS 303 (Miss. 2013).

Because the valuation was an arbitration award, as contemplated by the legally valid and binding contract, it was binding on the parties absent very narrow circumstances which were prescribed by Miss. Code Ann. §11-15-23, and long standing Mississippi jurisprudence provided that every reasonable presumption would be indulged in favor of the validity of arbitration proceedings. Although the chancellor cited “undue means” and an incomplete award as justifications for judicial review, he provided insufficient explanation for those conclusions, which the court found were unsupported by the record; therefore, because the chancery court was without the authority to set aside the arbitrators’ decision, the chancery court’s judgment was reversed and the court reinstated the arbitration award. Bailey Brake Farms, Inc. v. Trout, 2013 Miss. LEXIS 51 (Miss. Feb. 28, 2013), op. withdrawn, sub. op., 2013 Miss. LEXIS 308 (Miss. May 23, 2013).

Arbitration award will not be vacated except for prejudicial misconduct of arbitrators. McClendon v. Stewart, 133 Miss. 253, 97 So. 547, 1923 Miss. LEXIS 128 (Miss. 1923).

On motion to vacate award involving determination to the ownership of a note, evidence was insufficient to sustain finding that party to arbitration, a lady sixty-eight years old and weak mentally and physically, was overreached in the assignment of the note and in the arbitration award. McClendon v. Stewart, 133 Miss. 253, 97 So. 547, 1923 Miss. LEXIS 128 (Miss. 1923).

An award of arbitrators unsanctioned by the court, which was made through fraud, will not be enforced. Elledge v. Polk, 48 So. 241 (Miss. 1909).

The arbitrators must consider everything submitted to them and if they refuse to do so, the award is not binding. (This was a common-law award.) Tucker v. Gordon, 8 Miss. 306, 1843 Miss. LEXIS 90 (Miss. 1843).

3. Impeachment of award.

It is not competent to impeach an award by the testimony of an arbitrator who executed the same. Tucker v. Gordon, 8 Miss. 306, 1843 Miss. LEXIS 90 (Miss. 1843).

4. Contractual expansion of appeal rights.

Where defendant former client argued that an arbitration agreement with plaintiff law firm was unenforceable as being illusory, in that it provided for an appeal of the arbitrators’ decision to the same extent that a Mississippi county court jury verdict could be appealed, and argued that under Miss. Code Ann. §11-15-23 parties adversely affected by an arbitration decision did not enjoy the same appeal rights as an appeal of a jury verdict, because the court believed that the Mississippi Supreme Court would allow a contractual expansion of the right to appeal the arbitration award, the arbitration agreement was not unenforceable due to the expanded appeal rights. Speetjens v. Larson, 401 F. Supp. 2d 600, 2005 U.S. Dist. LEXIS 29222 (S.D. Miss. 2005).

RESEARCH REFERENCES

ALR.

Arbitrator’s viewing or visiting premises or property alone as misconduct justifying vacation of award. 27 A.L.R.2d 1160.

Arbitrator’s consultation with outsider or outsiders as misconduct justifying vacation of award. 47 A.L.R.2d 1362.

Setting aside arbitration award on ground of interest or bias of arbitrators. 56 A.L.R.3d 697.

Refusal or arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

What constitutes corruption, fraud, or undue means in obtaining arbitration award justifying avoidance of award under state law. 22 A.L.R.4th 366.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution Award §§ 183, 185, 186, 195- 198, 203, 204, 226.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration And Award, Forms 141 et seq.

4 Am. Jur. Proof of Facts 2d, Bias of Arbitrator, §§ 8 et seq. (proof of bias of arbitrator).

27 Am. Jur. Proof of Facts 3d 103, Establishing Statutory Grounds to Vacate an Arbitration Award in Nonjudicial Arbitration.

§ 11-15-25. Correction of award.

Any party to the submission may also move the court to modify or correct the award in the following cases:

Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property referred to in such award;

Where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted;

Where the award shall be imperfect in some matter of form, not affecting the merits of the controversy, and when, if it had been a verdict of a jury rendered in such court, the defect could have been amended or disregarded by the court.

HISTORY: Codes, 1892, § 107; 1906, § 108; Hemingway’s 1917, § 95; 1930, § 93; 1942, § 291.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

Standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act (FAA) is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error; the State arbitration act presents nearly identical requirements and exceptions for review, and the supreme court embraces this standard of review to evaluate properly the application of the statutes, while reviewing the trial court’s actions for error. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Only grounds for modifying an arbitration award are grounds prescribed by this section [Code 1942, § 291]. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Nothing in an award relative to merits of controversy as submitted, however wrongly decided, whether errors of law or fact, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections as defined in this section [Code 1942, § 291] and Code 1942, § 290. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Fact that installment payment notes totaled more than unpaid balance, the time purchase price of automobile, does not prove misdescription of time price of miscalculation of interest to support a motion for modification of award where excess over time price is explained by phrase, “including interest and carrying charges.” Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

For a case in which a mistake in the computation of time in awarding party the price of his labor was corrected without a statute, see Robertson v. Wells, 28 Miss. 90, 1854 Miss. LEXIS 152 (Miss. 1854).

The award should be in accordance with the submission and not extend to subjects not submitted nor to strangers. Gibson v. Powell, 13 Miss. 712, 1846 Miss. LEXIS 17 (Miss. 1846).

RESEARCH REFERENCES

ALR.

Power of court to resubmit matter to arbitrators for correction or clarification, because of ambiguity or error in, or omission from, arbitration award. 37 A.L.R.3d 200.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 183, 185, 186, 195- 198, 203, 204, 226.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration And Award, Forms 131 et seq.

§ 11-15-27. Motion to vacate or modify award; when made.

An application to vacate or modify an award shall be made to the court at the term next after the making and publication of the award, upon at least five days’ notice, in writing, being given to the adverse party, if there be time for that purpose; and if there be not time, such court, or the judge thereof, may, upon good cause shown, order a stay of proceedings upon the award, either absolutely or upon such terms as shall appear just, until the next succeeding term of court.

HISTORY: Codes, 1892, § 108; 1906, § 109; Hemingway’s 1917, § 96; 1930, § 94; 1942, § 292.

Cross References —

Causes for vacation of award, see §11-15-23.

Modification and correction of award, see §11-15-25.

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

Employer was entitled to confirmation of an arbitration award and for entry of a judgment against a former employee because the employee’s failure to file an action to vacate the arbitration award in a timely manner barred the employee’s opposition to the motion. Wells Fargo Advisors, LLC v. Runnels, 126 So.3d 137, 2013 Miss. App. LEXIS 781 (Miss. Ct. App. 2013).

Mississippi statute of limitations for actions to vacate arbitration awards (§11-15-27) will not be applied in action seeking to vacate arbitration award under Labor Management Relations Act (29 USCS § 1985) where action has been filed in federal court in Tennessee and Tennessee has unambiguous statute of limitations for analogous cause of action, in contrast to §11-15-27 which is ambiguous and uncertain to point of frustration. Champion International Corp. v. United Paperworkers International Union, 779 F.2d 328, 1985 U.S. App. LEXIS 25602 (6th Cir. Tenn. 1985).

In an action brought by a truck driver under the Labor Management Relations Act to challenge an arbitration decision upholding his discharge, §11-15-27 was properly applied even though the arbitration award had not been signed in accordance with the requirements for the signing of arbitration awards under Mississippi law, since the arbitration took place under federal law, and the only state law applicable was the statute of limitations, not state procedural requirements. Rigby v. Roadway Express, Inc., 680 F.2d 342, 1982 U.S. App. LEXIS 18320 (5th Cir. Miss. 1982).

RESEARCH REFERENCES

ALR.

Arbitrator’s viewing or visiting premises or property alone as misconduct justifying vacation of award. 27 A.L.R.2d 1160.

Time for impeaching arbitration award. 85 A.L.R.2d 779.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration and Award, Forms 141 et seq (Award; subsequent proceedings).

§ 11-15-29. Application to vacate or modify award; new hearing.

On application as provided for in Section 11-15-27, the court may vacate the award in any of the cases specified in Section 11-15-23, and if the time in which the award shall have been required to be made by the articles of submission has not expired, may, in its discretion, direct a new hearing by the arbitrators; and, in the cases specified in Section 11-15-25, the court may modify and correct the award so as to effect the intent thereof, and to promote justice between the parties.

HISTORY: Codes, 1892, § 109; 1906, § 110; Hemingway’s 1917, § 97; 1930, § 95; 1942, § 293.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

It is not legitimate, in exceptions to an arbitration award, to inquire into the original merits in favor of one party or the other, or to show that in evidence the award ought to have been different or that the law of the case was misconceived or misapplied, or that the decision, in view of all the facts and circumstances, was unjust. Thus, the scope of judicial review is much narrower than in cases where a party challenges the evidentiary basis for a trial court’s decision. Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

Nothing in an award relative to merits of controversy as submitted, however wrongfully decided, whether errors of law or fact, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections as defined in Code 1942, §§ 290 and 291. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

RESEARCH REFERENCES

ALR.

Arbitrator’s viewing or visiting premises or property alone as misconduct justifying vacation of award. 27 A.L.R.2d 1160.

Power of arbitrator to correct, or power of court to correct or resubmit, non-labor award because of incompleteness or failure to pass on all matters submitted. 36 A.L.R.3d 939.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Refusal or arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Am. Jur.

27 Am. Jur. Proof of Facts 3d 103, Establishing Statutory Grounds to Vacate an Arbitration Award in Nonjudicial Arbitration.

§ 11-15-31. Judgments; when and how rendered.

Upon such award being confirmed or modified, the court shall render such judgment therein in favor of the party entitled to the same, as would be rendered in such case in the circuit or chancery court.

HISTORY: Codes, 1892, § 110; 1906, § 111; Hemingway’s 1917, § 98; 1930, § 96; 1942, § 294.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

An award may be binding on a portion of the parties and not on all of them, as where the distributees of an estate some of whom were infants, on the one side and the administrator on the other submitted a controversy about the administration to arbitrators, the award was held to bind the adults but not the infants. Fort v. Battle, 21 Miss. 133, 1849 Miss. LEXIS 153 (Miss. 1849).

§ 11-15-33. Costs; how taxed and collected.

The costs of the proceedings, after an application to the court for its action upon the award, and the fees allowed by law to the arbitrators, where no provision for payment is made thereof in the award, shall be taxed and collected as in other suits.

HISTORY: Codes, 1892, § 111; 1906, § 112; Hemingway’s 1917, § 99; 1930, § 97; 1942, § 295.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

Compensation for referees, auditors, and arbitrators, see §25-7-35.

RESEARCH REFERENCES

ALR.

Liability of parties to arbitration for costs, fees, and expenses. 57 A.L.R.3d 633.

Am. Jur.

2A Am. Jur. Legal Forms 2d, Arbitration and Award § 23:177 (Present disputes).

§ 11-15-35. Pending suits may be arbitrated.

In all suits or actions in any court, it shall be lawful for the plaintiff and defendant to consent to a rule of court referring all matters in controversy between them in such suit or action to the arbitrament of any person or persons who may be mutually chosen by them; and the award of such arbitrators being made and returned according to the rule of submission of the parties, approved by the court and entered of record, shall have the same effect as the final judgment or decree of the court into which such award may be returned, and execution may issue thereon accordingly; and like proceedings may be had, where applicable, as is provided in other cases.

HISTORY: Codes, 1892, § 112; 1906, § 113; Hemingway’s 1917, § 100; 1930, § 98; 1942, § 296.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

2. Conclusiveness of award.

1. In general.

Agreement to submit controversy to arbitration has effect of compromise settlement of matters in dispute and this agreement merges original causes of action and defenses into written award and makes that the exclusive source of rights and liabilities of parties. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

But the regular guardian may so submit a controversy in which he is authorized to give an acquittance. Goleman v. Turner, 22 Miss. 118, 1850 Miss. LEXIS 109 (Miss. 1850).

A guardian ad litem cannot bind his ward by submitting the suit to arbitration. Fort v. Battle, 21 Miss. 133, 1849 Miss. LEXIS 153 (Miss. 1849).

2. Conclusiveness of award.

Nothing in an award relative to merits of controversy as submitted, however wrongly decided, whether errors of law or fact, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections as defined in Code 1942, §§ 290 and 291. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Unless arbitrators are restricted by agreement of submission, they are final judges of both law and fact and an award will not be reviewed or set aside for mistake in either. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

Parties to a replevin action who have agreed to submit to arbitrator issue involving usury are bound by whatever arbitrators declare to be law between them, and award is final and conclusive. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

An award returned into the circuit court by arbitrators appointed under this section [Code 1942, § 296] should be vacated when it appears that after the submission of the case the arbitrators heard the unsworn testimony of one party, in the absence of, and without the knowledge of the other or his counsel. Rand v. Peel, 74 Miss. 305, 21 So. 10, 1896 Miss. LEXIS 140 (Miss. 1896).

On an appeal from an award returned into and approved by the circuit court, said award is dealt with by the Supreme Court in the matter of procedure as having the same effect as a final judgment of the trial court, and when set aside the submission falls with it. Rand v. Peel, 74 Miss. 305, 21 So. 10, 1896 Miss. LEXIS 140 (Miss. 1896).

The objection that the circuit court could not render judgment on an award until the end of the term next following its return, is not well taken. Where the award was returned before the term of court began and plaintiff invited action upon it by making a motion in the case, the court rightly assumed that they were prepared to urge objections which they expected to make. Hollingsworth v. Willis, 64 Miss. 152, 8 So. 170, 1886 Miss. LEXIS 32 (Miss. 1886).

Affidavits in support of a motion to set aside an award, which are referred to in the bill of exceptions but not there set out, will not be considered by the Supreme Court, though certain affidavits which appeared to be the same are set out elsewhere in the record. Hollingsworth v. Willis, 64 Miss. 152, 8 So. 170, 1886 Miss. LEXIS 32 (Miss. 1886).

RESEARCH REFERENCES

ALR.

Laches or statute of limitations as bar to arbitration under agreement. 37 A.L.R.2d 1125.

Contract providing that it is governed by or subject to rules or regulations of a particular trade, business, or association as incorporating agreement to arbitrate. 41 A.L.R.2d 872.

Validity and effect of arbitration agreement provision that, upon one party’s failure to appoint arbitrator, controversy may be determined by arbitrator appointed by other party. 47 A.L.R.2d 1346.

Liability of organization sponsoring or administering arbitration to parties involved in proceeding. 41 A.L.R.4th 1013.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 18- 27.

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:133-23:155, 23:172-23:176 (Present disputes).

§ 11-15-37. Construction of chapter.

This chapter shall not be construed to take away from the courts of equity their power over awards, nor to make invalid any award good at common law. It shall be liberally construed for the encouragement of the settlement of disputes and the prevention of litigation.

HISTORY: Codes, 1892, § 113; 1906, § 114; Hemingway’s 1917, § 101; 1930, § 99; 1942, § 297.

Cross References —

Arbitration of controversies arising from construction contracts and related agreements generally, see §11-15-101 et seq.

Inapplicability of this section to certain agreements, see §11-15-143.

JUDICIAL DECISIONS

1. In general.

Arbitration proceedings which were had on subcontractor’s request, where subcontractor was in default on a contract with state building commission, were an appeal from architect’s determination and were broad enough to settle a dispute between the parties even though it was found only in general terms that architect’s certificate should have been issued. Horne v. State Bldg. Com., 222 Miss. 520, 76 So. 2d 356, 1954 Miss. LEXIS 675 (Miss. 1954).

Articles of agreement to arbitrate and awards thereon are to be liberally construed so as to encourage settlement of disputes and prevention of litigation, and every reasonable presumption will be indulged in favor of validity of arbitration proceedings. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948); Stout v. W. M. Garrard & Co., 128 Miss. 418, 91 So. 33, 1922 Miss. LEXIS 125 (Miss. 1922).

Agreement to submit controversy to arbitration has effect of compromise settlement of matters in dispute and this agreement merges original causes of action and defenses into written award and makes that the exclusive source of rights and liabilities of parties. Hutto v. Jordan, 204 Miss. 30, 36 So. 2d 809, 1948 Miss. LEXIS 340 (Miss. 1948).

A liberal construction of the arbitration statute was expressly provided doubtless with knowledge that ordinary articles of arbitration are prepared by parties having no knowledge of technical rules, and refinements ought not to be ingrafted by the courts upon such proceedings. Stout v. W. M. Garrard & Co., 128 Miss. 418, 91 So. 33, 1922 Miss. LEXIS 125 (Miss. 1922).

Policy of the state is to permit arbitration and give effect to a valid submission and award in view of this section [Code 1942, § 297]. Scottish Union & Nat'l Ins. Co. v. Skaggs, 114 Miss. 618, 75 So. 437, 1917 Miss. LEXIS 68 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters. 38 A.L.R.5th 69.

Am. Jur.

3 Am. Jur. Trials 681, Tactics and Strategy of Pleading §§ 50 et seq.

Arbitration of Controversies Arising from Construction Contracts and Related Agreements

§ 11-15-101. Agreements to which arbitration provisions apply.

  1. Sections 11-15-101 through 11-15-143 apply only to agreements and provisions for arbitration made subsequent to July 1, 1981.
  2. Sections 11-15-101 through 11-15-143 shall apply to any agreement for the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof, and to any purchase by, or supply to, any contractor or subcontractor qualified to do business in this state of any materials to be used in the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof; provided, however, that nothing contained in Sections 11-15-101 through 11-15-143 shall be construed as amending or otherwise affecting the provisions of Sections 65-2-1 through 65-2-17, Section 65-1-89, Section 65-1-91, and Section 77-9-387, Mississippi Code of 1972.
  3. Sections 11-15-101 through 11-15-143 shall also apply to any agreement for architectural, engineering, surveying, planning and related professional services performed in connection with any of the agreements enumerated in subsection (2) of this section.
  4. Sections 11-15-101 through 11-15-143 shall have no effect on the establishment or enforcement of any lien provided for in Title 85, Chapter 7, Mississippi Code of 1972.

HISTORY: Laws, 1981, ch. 495, § 1, eff from and after July 1, 1981.

Editor’s Notes —

Section 77-9-387 referred to in (2) was repealed by Laws of 1997, ch. 460, § 21, eff from and after July 1, 1997.

Cross References —

Provisions on arbitration and award of controversies, see §11-15-1 et seq.

Inapplicability of §§11-15-1 through11-15-37 to agreements enumerated in this section, see §11-15-143.

Application of the arbitration provisions of §§11-15-101 through11-15-143 to disagreements between electric utility and person seeking to work in closer proximity to high voltage overhead lines than is permitted by law over the reasonableness or necessity of the price of or work to be performed to deter contact with the lines, see §45-15-9.

JUDICIAL DECISIONS

1. In general.

Because the underlying dispute concerned the installation of a roof and a subcontract between two contractors, the laws under this section controlled. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Following trial court’s 1994 order of dismissal without prejudice and order to submit claims to arbitration in accordance with the provisions of Miss. Code Ann. §11-15-101 et seq., subcontractor could have initiated the arbitration proceeding but chose not to until seven years later when its claims were time-barred under Miss. Code Ann. §15-1-49. Haycraft v. Mid-State Constr. Co., 915 So. 2d 1117, 2005 Miss. App. LEXIS 1000 (Miss. Ct. App. 2005).

OPINIONS OF THE ATTORNEY GENERAL

The University of Mississippi Medical Center may agree to contracts which provide that disputes arising out of and concerning the performance or nonperformance of those contracts be resolved by binding arbitration. Conerly, February 5, 1999, A.G. Op. #99-0026.

RESEARCH REFERENCES

ALR.

Constitutionality of arbitration statutes. 55 A.L.R.2d 432.

Municipal corporation’s power to submit to arbitration. 21 A.L.R.3d 569.

Demand for or submission to arbitration as affecting enforcement of mechanics’ lien. 73 A.L.R.3d 1042.

Filing of mechanics’ lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Enforcement of arbitration agreement contained in construction contract by or against nonsignatory. 100 A.L.R.5th 481.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 4- 7, 18- 27.

52 Am. Jur. Trials 209, Alternative Dispute Resolution: Construction Industry.

CJS.

6 C.J.S., Arbitration §§ 9, 10, 39–41.

Law Reviews.

An overview of Mississippi’s Construction Arbitration Act, 53 Miss. L. J. 501, September, 1983.

Williamson and Redfern, Lender liability in Mississippi: Part II loan commitments and agreements. 59 Miss. L. J. 71, Spring, 1989.

A Review of Mississippi Law Regarding Arbitration, 76 Miss. L.J. 1007, Spring, 2007.

§ 11-15-103. Agreements to submit controversies to arbitration; refusal of binding arbitration provisions in public contracts.

Two (2) or more parties referred to in Section 11-15-101 may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy. Provided, however, that in the event either party to such an agreement initiates litigation against the other with respect to such agreement, such arbitration provision shall be deemed waived unless asserted as a defense on or before the responding party is required to answer to such litigation. Whenever a provision for binding arbitration is included in the contract documents of a public contract, any bidder may refuse to accept such clause and shall so state on the bid document before entering into such public contract, and such refusal shall not be cause to reject any bid on, or refuse the award of such public contract.

HISTORY: Laws, 1981, ch. 495, § 2, eff from and after July 1, 1981.

Cross References —

Application of the arbitration provisions of §§11-15-101 through11-15-143 to disagreements between electric utility and person seeking to work in closer proximity to high voltage overhead lines than is permitted by law over the reasonableness or necessity of the price of or work to be performed to deter contact with the lines, see §45-15-9.

JUDICIAL DECISIONS

1. In general.

2. Arbitration provision held enforceable.

1. In general.

The statute does not provide the exclusive method by which a party may effectuate a waiver of a right to arbitration. Scott Addison Constr. v. Lauderdale County Sch. Sys., 789 So. 2d 771, 2001 Miss. LEXIS 98 (Miss. 2001).

Parties to a construction agreement, as a matter of right to contract, may in advance bind themselves to compulsory arbitration of disputes that arise between them. Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

2. Arbitration provision held enforceable.

Arbitration clause of a contractor and developer’s contract that excluded aesthetic-effect claims from arbitration was enforceable, but the trial court erred by listing certain punch-list items as aesthetic and thus not subject to arbitration because it failed to define the ambiguous term “aesthetic” and what it covered, and provided no reasoning for its selections. Harrison County Commer. Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 2013 Miss. LEXIS 29 (Miss. 2013).

Arbitration provision in a contract between a developer and a contractor was unambiguous, and its failure to provide an express jury trial waiver did not render it unenforceable, as the developer was a sophisticated business that should have been aware of the consequences of the arbitration agreement which it negotiated. Harrison County Commer. Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 2013 Miss. LEXIS 29 (Miss. 2013).

OPINIONS OF THE ATTORNEY GENERAL

The University of Mississippi Medical Center may agree to contracts which provide that disputes arising out of and concerning the performance or nonperformance of those contracts be resolved by binding arbitration. Conerly, February 5, 1999, A.G. Op. #99-0026.

RESEARCH REFERENCES

ALR.

Contract providing that it is governed by or subject to rules or regulations of a particular trade, business, or association as incorporating agreement to arbitrate. 41 A.L.R.2d 872.

Death of party before award as revocation or termination of submission to arbitration. 63 A.L.R.2d 754.

Arbitration of disputes within close corporation. 64 A.L.R.2d 643.

Application of provisions of arbitration statutes excluding contracts for labor or services. 64 A.L.R.2d 1336.

Enforcement of contractual arbitration clause as affected by expiration of contract prior to demand for arbitration. 5 A.L.R.3d 1008.

Validity and effect, and remedy in respect, of contractual stipulation to submit disputes to arbitration in another jurisdiction. 12 A.L.R.3d 892.

Validity and enforceability of provision for binding arbitration and waiver thereof. 24 A.L.R.3d 1325.

Breach or repudiation of contract as affecting right to enforce arbitration clause therein. 32 A.L.R.3d 377.

Statute of limitations as bar to arbitration under agreement. 94 A.L.R.3d 533.

Conflict of laws as to validity and effect of arbitration provision in contract for purchase or sale of goods, products, or services. 95 A.L.R.3d 1145.

Attorney’s submission of dispute to arbitration, or amendment of arbitration agreement, without client’s knowledge or consent. 48 A.L.R.4th 127.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 28- 76.

2A Am. Jur. Legal Forms 2d, Arbitration and Award § 23:146 (present disputes-filing agreement for arbitration with clerk of appropriate court).

CJS.

6 C.J.S., Arbitration §§ 14, 15–18, 40–48 et seq.

§ 11-15-105. Application for order to proceed with arbitration; stay; determination of issues.

  1. Any party to an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 claiming the neglect or refusal of another party thereto to comply therewith may make application to the court as described in Sections 11-15-133 and 11-15-135 for an order directing the parties to proceed with arbitration in accordance with the terms of such agreement or provision. If the court finds that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine such issue and shall, consistent with such determination, grant or deny the application.
  2. Any action or proceeding involving an issue subject to arbitration under Sections 11-15-101 through 11-15-143 shall be stayed if an order for arbitration or an application therefor has been made under this section. If such issue is severable, the stay may be with respect to such issue only. An order for arbitration shall include the stay.
  3. On application, the court may stay an arbitration proceeding commenced or threatened if it shall find no agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and shall, consistent with such determination, grant or deny the application.
  4. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

HISTORY: Laws, 1981, ch. 495, § 3, eff from and after July 1, 1981.

Cross References —

Application of the arbitration provisions of §§11-15-101 through11-15-143 to disagreements between electric utility and person seeking to work in closer proximity to high voltage overhead lines than is permitted by law over the reasonableness or necessity of the price of or work to be performed to deter contact with the lines, see §45-15-9.

JUDICIAL DECISIONS

1. In relation to limitations periods.

2. Arbitration provision held enforceable.

1. In relation to limitations periods.

Following trial court’s 1994 order of dismissal without prejudice and order to submit claims to arbitration in accordance with the provisions of Miss. Code Ann. §11-15-101 et seq., subcontractor could have initiated the arbitration proceeding but chose not to until seven years later when its claims were time-barred under Miss. Code Ann. §15-1-49. Haycraft v. Mid-State Constr. Co., 915 So. 2d 1117, 2005 Miss. App. LEXIS 1000 (Miss. Ct. App. 2005).

2. Arbitration provision held enforceable.

Arbitration clause of a contractor and developer’s contract that excluded aesthetic-effect claims from arbitration was enforceable, but the trial court erred by listing certain punch-list items as aesthetic and thus not subject to arbitration because it failed to define the ambiguous term “aesthetic” and what it covered, and provided no reasoning for its selections. Harrison County Commer. Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 2013 Miss. LEXIS 29 (Miss. 2013).

Arbitration provision in a contract between a developer and a contractor was unambiguous, and its failure to provide an express jury trial waiver did not render it unenforceable, as the developer was a sophisticated business that should have been aware of the consequences of the arbitration agreement which it negotiated. Harrison County Commer. Lot, LLC v. H. Gordon Myrick, Inc., 107 So.3d 943, 2013 Miss. LEXIS 29 (Miss. 2013).

RESEARCH REFERENCES

ALR.

Which statute of limitations applies to efforts to compel arbitration of a dispute. 77 A.L.R.4th 1071.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 28- 76.

2A Am. Jur. Legal Forms 2d, Arbitration and Award § 23:146 (present disputes-filing agreement for arbitration with clerk of appropriate court).

CJS.

6 C.J.S., Arbitration §§ 122, 128, 174, 175.

§ 11-15-107. Initiation of arbitration.

If an agreement or provision for arbitration provides a method for the initiation of arbitration, such method shall be followed. In the absence thereof, the party desiring to initiate the arbitration shall, within the time specified by the contract, if any, file with the other party a notice of an intention to arbitrate which notice shall contain a statement setting forth the nature of the dispute, the amount involved, and the remedy sought. A party upon whom the demand for arbitration is made may file an answering statement to the other party within twenty (20) days after receipt of the initial demand. If no answer is filed within the stated time, it will be treated as a denial of the claim. Failure to file an answer shall not operate to delay the arbitration.

HISTORY: Laws, 1981, ch. 495, § 4, eff from and after July 1, 1981.

Cross References —

Provision regarding form of applications and notices, see §11-15-127.

JUDICIAL DECISIONS

1. In relation to limitations periods.

Following trial court’s 1994 order of dismissal without prejudice and order to submit claims to arbitration in accordance with the provisions of Miss. Code Ann. §11-15-101 et seq., subcontractor could have initiated the arbitration proceeding but chose not to until seven years later when its claims were time-barred under Miss. Code Ann. §15-1-49. Haycraft v. Mid-State Constr. Co., 915 So. 2d 1117, 2005 Miss. App. LEXIS 1000 (Miss. Ct. App. 2005).

RESEARCH REFERENCES

ALR.

Delay in asserting contractual right to arbitration as precluding enforcement thereof. 25 A.L.R.3d 1171.

Attorney’s submission of dispute to arbitration, or amendment of arbitration agreement, without client’s knowledge or consent. 48 A.L.R.4th 127.

Which statute of limitations applies to efforts to compel arbitration of a dispute. 77 A.L.R.4th 1071.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 12.1 (Answer – Defense – Laches).

CJS.

6 C.J.S., Arbitration §§ 99 et seq.

§ 11-15-109. Appointment of arbitrators.

If an agreement or provision for arbitration provides a method for the appointment of arbitrators this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator who has been appointed fails or is unable to act and his successor has not been duly appointed, the court, on application of a party to such agreement or provision, shall appoint one or more arbitrators. An arbitrator so appointed shall have the same powers as if he had been named or provided for in the agreement or provision.

HISTORY: Laws, 1981, ch. 495, § 5, eff from and after July 1, 1981.

Cross References —

Criminal penalty for arbitrator taking bribe, see §97-9-5.

RESEARCH REFERENCES

ALR.

Disqualification of arbitrator by court or stay of arbitration proceedings for interest, bias, prejudice, collusion, or fraud of arbitrators. 65 A.L.R.2d 755.

Setting aside arbitration award on ground of interest or bias of arbitrators. 56 A.L.R.3d 697.

Validity and effect under state law of arbitration agreement provision for alternative method of appointment of arbitrator where one party fails or refuses to follow appointment procedure specified in agreement. 75 A.L.R.5th 595.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 102- 135.

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:223 et seq. (Appointment of arbitrator).

4 Am. Jur. Proof of Facts 2d, Bias of Arbitrator, §§ 8 et seq. (proof of bias of arbitrator).

CJS.

6 C.J.S., Arbitration §§ 168-192.

§ 11-15-111. Powers of arbitrators to be exercised by majority.

The powers of the arbitrators may be exercised by a majority of their number unless otherwise provided in the agreement or provision for arbitration.

HISTORY: Laws, 1981, ch. 495, § 6, eff from and after July 1, 1981.

JUDICIAL DECISIONS

1. In general.

When a mortgagee brings an action for a deficiency judgment on mortgaged property that the mortgagee purchased at a foreclosure sale in which the mortgagee was the only bidder, subsequent valuations of the property and the totality of the actions taken by the creditor/purchaser at the foreclosure sale to satisfy the full debt from the property foreclosed becomes relevant to the entitlement of the mortgagee to a deficiency judgment, and therefore should be admissible. Federal Land Bank v. Wolfe, 560 So. 2d 137, 1989 Miss. LEXIS 500 (Miss. 1989).

RESEARCH REFERENCES

ALR.

Modern status of rules respecting concurrence of all arbitrators as condition of binding award under private agreement not specifying unanimity. 83 A.L.R.3d 996.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 121- 131.

CJS.

6 C.J.S., Arbitration § 190.

§ 11-15-113. Time, place and notice of hearing; procedure for conduct of hearing.

Unless otherwise provided by the agreement or provision for arbitration:

The arbitrators so appointed shall set a time and place for the hearing and cause notification to the parties to be served personally in any manner provided for by law or by registered or certified mail not less than twenty (20) days before the hearing. Appearance at the hearing waives a party’s right to such notice. The arbitrators may adjourn their hearing from time to time upon their own motion and shall do so upon the request of any party to the arbitration for good cause shown; provided that no adjournment or postponement of the hearing shall extend beyond the date fixed in the agreement or provision for making the award unless the parties consent to a later date.

A hearing shall be opened by the recording of the place, time and date of the hearing, the presence of the arbitrator and parties, and counsel, if any, and by the receipt by the arbitrator of the statement of the claim and answer, if any.

The arbitrator may, at the beginning of the hearing, ask for a statement clarifying the issues involved.

The complaining party shall then present its claim, proofs and witnesses, who shall submit to questions or other examination. The defending party shall then present its defenses, proofs and witnesses, who shall submit to questions or other examination. The arbitrator may vary this procedure but shall afford full and equal opportunity to the parties for the presentation of any material or relevant proofs.

Any party shall be entitled to cross-examine the witnesses of any other party appearing at the hearing. Exhibits, when offered by either party, may be received in evidence by the arbitrator.

The names and addresses of all witnesses and exhibits in order received shall be made a part of the record.

The parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrators shall be the judge of the admissibility of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent in default or has waived his or her right to be present.

The hearing shall be conducted by all of the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

HISTORY: Laws, 1981, ch. 495, § 7, eff from and after July 1, 1981.

RESEARCH REFERENCES

ALR.

Refusal or arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution Award §§ 136- 158, 162- 166, 170— 172, 206.

CJS.

6 C.J.S., Arbitration §§ 167–171, 173–181.

§ 11-15-115. Representation by attorney at proceedings.

A party has the right to be represented by an attorney at any proceeding or hearing under Sections 11-15-101 through 11-15-143. A waiver thereof prior to the proceeding or hearing shall be ineffective.

HISTORY: Laws, 1981, ch. 495, § 8, eff from and after July 1, 1981.

§ 11-15-117. Subpoenas for production of evidence and attendance of witnesses; other discovery.

  1. The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Subpoenas so issued shall be served and, upon application to the court by a party to the arbitration or the arbitrators, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.
  2. On application of a party to the arbitration, the arbitrators, in the manner and upon terms designated by the arbitrators, may permit a deposition to be taken of any person.
  3. Any prehearing discovery other than that referred to above shall only be permissible if agreed to by the parties involved in the arbitration.
  4. All provisions of law compelling a person under subpoena to testify are applicable.
  5. Fees for attendance as a witness shall be the same as for a witness in circuit court.

HISTORY: Laws, 1981, ch. 495, § 9, eff from and after July 1, 1981.

Cross References —

Issuance and service of subpoenas duces tecum, generally, see §11-1-51.

Subpoenas for witnesses, generally, see §13-3-93 et seq.

Fees for witness in circuit court, see §25-7-47.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution § 134.

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration and Award, Form 61 (Petition or application by arbitrators for order compelling witness to attend arbitration proceeding).

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration and Award, Form 62 (Order to show cause why witness should not testify before arbitrators or be punished for contempt).

2 Am. Jur. Pl & Pr Forms (Rev), Arbitration and Award, Form 63 (Order directing witness to appear before arbitrators to testify).

CJS.

6 C.J.S., Arbitration §§ 183–189.

98 C.J.S., Witnesses §§ 201-229.

§ 11-15-119. Nature of remedy; form and time of award.

  1. The arbitrators may grant any remedy or relief which is just, equitable and consistent with the agreement of the parties which is the subject of the arbitration.
  2. The award shall be in writing and shall be signed by the arbitrator joining in the award. The arbitrators shall deliver a copy to each party to the arbitration either personally or by registered or certified mail, or as provided in the agreement or provision.
  3. An award shall be made within the time fixed therefor by the agreement or provision for arbitration or, if not so fixed, within such time as the court may order on application of a party to the arbitration. The parties may, by written agreement, extend the time before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.
  4. An arbitrator may award attorney’s fees and costs to a prevailing party.

HISTORY: Laws, 1981, ch. 495, § 10; Laws, 1994, ch. 626, § 8, eff from and after July 1, 1994.

RESEARCH REFERENCES

ALR.

Necessity that arbitrators, make specific or detailed findings of fact or conclusions of law. 82 A.L.R.2d 969.

Power of court to resubmit matter to arbitrators for correction or clarification, because of ambiguity or error in, or omission from, arbitration award. 37 A.L.R.3d 200.

Construction and effect of contractual or statutory provisions fixing time within which arbitration award must be made. 56 A.L.R.3d 633.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Arbitrator’s power to award punitive damages. 83 A.L.R.3d 1037.

Equipment leasing expense as element of construction contractor’s damages. 52 A.L.R.4th 712.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 150 et seq.

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:31 et seq. (Future disputes).

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:133-23:155, 23:172-23:176 (Present disputes).

CJS.

6 C.J.S., Arbitration §§ 192-258.

§ 11-15-121. Fees and expenses.

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ reasonable expenses and fees, together with other reasonable expenses, not including counsel fees, incurred in the conduct of the arbitration shall be paid as provided in the award. Such compensation shall be taxed and collected as costs in the suit.

HISTORY: Laws, 1981, ch. 495, § 11, eff from and after July 1, 1981.

Cross References —

Compensation for arbitrators, see §25-7-35.

RESEARCH REFERENCES

ALR.

Liability of parties to arbitration for costs, fees, and expenses. 57 A.L.R.3d 633.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

§ 11-15-123. Modification or correction of award by arbitrators.

Upon request by a party to the arbitration, mailed by registered or certified mail to the arbitrators and opposing party(s) within twenty (20) days of the receipt of the award, to modify or correct the award on any or all of the grounds enumerated in Section 11-15-135, the arbitrators shall, within ten (10) days, modify, correct or affirm the award as they find proper.

HISTORY: Laws, 1981, ch. 495, § 12, eff from and after July 1, 1981.

JUDICIAL DECISIONS

1. Waiver.

City waived its argument that the arbitrator erred by denying as untimely its motion for reconsideration because the city never presented the issue to the circuit judge for decision; the city never asked the circuit judge to vacate the arbitration award or grant any other relief based on the arbitrator’s refusal to reconsider issues related to damages City of Hattiesburg v. Precision Constr., 192 So.3d 1089, 2016 Miss. App. LEXIS 312 (Miss. Ct. App. 2016).

RESEARCH REFERENCES

ALR.

Power of arbitrator to correct, or power of court to correct or resubmit, nonlabor award because of incompleteness or failure to pass on all matters submitted. 36 A.L.R.3d 939.

Power of court to resubmit matter to arbitrators for correction or clarification, because of ambiguity or error in, or omission from, arbitration award. 37 A.L.R.3d 200.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution § 130, 151, 159, 160, 187, 210.

CJS.

6 C.J.S., Arbitration §§ 172, 244.

§ 11-15-125. Confirmation of award by court.

Upon application by a party to the arbitration filed within ninety (90) days of the receipt of the later of a copy of the award issued pursuant to Section 11-15-119, or a modified or corrected award as provided by Section 11-15-123 the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating, modifying or correcting the award, in which case the court shall proceed as provided in Sections 11-15-133 and 11-15-135.

HISTORY: Laws, 1981, ch. 495, § 13, eff from and after July 1, 1981.

JUDICIAL DECISIONS

1. Award confirmed.

According to Miss. Code Ann. §11-15-125 and Miss. Code Ann. §11-15-135, an arbitration award would be confirmed absent the existence of at least one of the grounds listed for vacating, modifying, or correcting an award; because the subcontractor did not assert any of these grounds in its response asserting that the motion to confirm was premature, its motion to set aside judgment, motion to vacate, or motion to reconsider, the circuit court properly confirmed the award in favor of the general contractor. Johnson Land Co. v. C. E. Frazier Constr. Co., 925 So. 2d 80, 2006 Miss. LEXIS 61 (Miss. 2006).

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution §§ 169, 170.

CJS.

6 C.J.S., Arbitration §§ 245–253.

§ 11-15-127. Form and service of application and notice.

Except as otherwise provided, an application to the court under Sections 11-15-101 through 11-15-143 shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

HISTORY: Laws, 1981, ch. 495, § 14, eff from and after July 1, 1981.

§ 11-15-129. Jurisdiction of circuit courts over arbitration.

The term “court” as used in Sections 11-15-101 through 11-15-143 means the circuit court of the county as provided in Section 11-15-131. The making of an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 and providing for arbitration in this state shall, whether made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under Sections 11-15-101 through 11-15-143 and to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause and in the manner provided in Sections 11-15-101 through 11-15-143.

HISTORY: Laws, 1981, ch. 495, § 15, eff from and after July 1, 1981.

RESEARCH REFERENCES

ALR.

Validity and effect, and remedy in respect, of contractual stipulation to submit disputes to arbitration in another jurisdiction. 12 A.L.R.3d 892.

§ 11-15-131. Venue of arbitration applications.

An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise, the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the court of any county. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.

HISTORY: Laws, 1981, ch. 495, § 16, eff from and after July 1, 1981.

§ 11-15-133. Vacating arbitration award.

  1. Upon application of a party, the court shall vacate an award where:
    1. The award was procured by corruption, fraud or other undue means;
    2. There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.

      The fact that the relief was such that it could not or would not be granted by a court of law or equity is no ground for vacating or refusing to confirm the award.

  2. An application under this section shall be made within ninety (90) days after receipt of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.
  3. In vacating the award on such grounds, the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or, in the absence thereof, by the court in accordance with Section 11-15-107. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order.
  4. If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

HISTORY: Laws, 1981, ch. 495, § 17, eff from and after July 1, 1981.

Cross References —

Jurisdiction of circuit courts, generally, see §9-7-81 et seq.

Applicability of procedure in this section to one seeking order directing parties to proceed to arbitration, see §11-15-105.

Criminal penalty for arbitrator taking bribe, see §97-9-5.

JUDICIAL DECISIONS

1. In general.

2. Request to vacate properly denied.

1. In general.

Courts requested to confirm, modify and/or vacate arbitration awards are not at liberty to permit the examination of witnesses; witness testimony outside the confines of the arbitration record amounts to fact finding by the trial court, exceeding the scope of the court’s review. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act (FAA) is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error; the State arbitration act presents nearly identical requirements and exceptions for review, and the supreme court embraces this standard of review to evaluate properly the application of the statutes, while reviewing the trial court’s actions for error. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Much like the Federal Arbitration Act, the Mississippi construction arbitration statutes significantly limit the grounds for vacation and modification; courts adhering to these rules have no need to hear witness testimony to determine whether an award should be modified or withdrawn. Rather, courts make these decisions based on the evident nature, the clear and obvious presence, of the error in the award. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

According to Miss. Code Ann. Section 11-15-133(2), even a party challenging an award predicated upon fraud, corruption, or other undue means, had only ninety days to do so, starting from the date the fraud, corruption, or other undue means was known or should have been known; it was easy to envision the negative effects the subcontractor’s interpretation of the statute could have on the benefits of arbitration, if a trial court must wait ninety days, in every case, before confirming the award. Johnson Land Co. v. C. E. Frazier Constr. Co., 925 So. 2d 80, 2006 Miss. LEXIS 61 (Miss. 2006).

It is not legitimate, in exceptions to an arbitration award, to inquire into the original merits in favor of one party or the other, or to show that in evidence the award ought to have been different or that the law of the case was misconceived or misapplied, or that the decision, in view of all the facts and circumstances, was unjust. Thus, the scope of judicial review is much narrower than in cases where a party challenges the evidentiary basis for a trial court’s decision. Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

Section 11-15-133, which authorizes an inquiry into “evident partiality,” precludes consideration of whether the relief granted by the arbitrator is such that it could have been granted by a court of law or equity. Evident partiality of an arbitrator as a defense of an award is analogous to an attack upon a judge on the grounds of partiality. On appeal, evident partiality may not be shown by an inquiry into the merits. Moreover, the mere appearance of bias that might disqualify a judge will not disqualify an arbitrator. To vacate an award on the grounds of evident partiality, a reviewing court must find some personal interest on the part of the arbitrator. Personal bias of an arbitrator cannot be shown by means other than pecuniary interest or some other actual relationship between the parties. Moreover, an arbitrator’s general interest in his or her industry is insufficient grounds for vacating an award. The partiality “must be direct, definite and capable of demonstration rather than remote, uncertain, or speculative.” Herrin v. Milton M. Stewart, Inc., 558 So. 2d 863, 1990 Miss. LEXIS 155 (Miss. 1990).

Evident partiality of an arbitrator as a defense to an award is analogous to attacks upon a judge on grounds of partiality. Evident partiality has objective and subjective components. It contemplates an objective view of an arbitrator’s state of mind, that which would sway the judgment and be reasonably likely to render him or her unable to proceed impartially in a particular case. The statutory language also refers to a subjective mental attitude, a preconceived opinion, or a predisposition toward a party to the arbitration. Craig v. Barber, 524 So. 2d 974, 1988 Miss. LEXIS 214 (Miss. 1988).

2. Request to vacate properly denied.

Denial of a contractor’s motion to vacate an arbitration award for a builder under Miss. Code Ann. §11-15-133(1) was proper as: (1) the arbitrator properly refused to postpone the arbitration hearing after the contractor obtained new counsel because the contractor had already caused substantial delay in the proceedings; (2) three separate scheduling hearings were held prior to arbitration due to the contractor’s failure to cooperate: (3) obtaining new counsel merely five days before arbitration was scheduled was yet another effort by the contractor to further delay the proceedings; and (4) the arbitrator was well within his authority to exclude the documentary evidence due to the contractor’s failure to present the evidence in a timely manner. Tri County Contrs., Inc. v. Better Quality Builders, LLC, 111 So.3d 1285, 2013 Miss. App. LEXIS 228 (Miss. Ct. App. 2013).

RESEARCH REFERENCES

ALR.

Arbitrator’s viewing or visiting premises or property alone as misconduct justifying vacation of award. 27 A.L.R.2d 1160.

Arbitrator’s consultation with outsider or outsiders as misconduct justifying vacation of arbitration award. 47 A.L.R.2d 1362.

Disqualification of arbitrator by court or stay of arbitration proceedings for interest, bias, prejudice, collusion, or fraud of arbitrators. 65 A.L.R.2d 755.

Time for impeaching arbitration award. 85 A.L.R.2d 779.

Setting aside arbitration award on ground of interest or bias of arbitrators. 56 A.L.R.3d 697.

Refusal or arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Setting aside arbitration award on ground of interest or bias of arbitrators–commercial, business, or real estate transactions. 67 A.L.R.5th 179.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution § 183.

4 Am. Jur. Proof of Facts 2d, Bias of Arbitrator, §§ 8 et seq. (proof of bias of arbitrator).

§ 11-15-135. Application for modification or correction of award; grounds; joinder with application for vacating award.

  1. Upon application made by a party to the arbitration within ninety (90) days after receipt of a copy of the award, the court shall modify or correct the award where:
    1. There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
    2. The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
    3. The award is imperfect in a matter of form, not affecting the merits of the controversy.
  2. If such application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected; otherwise, the court shall confirm the award as made.
  3. An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

HISTORY: Laws, 1981, ch. 495, § 18, eff from and after July 1, 1981.

Cross References —

Applicability of procedure in this section to one seeking order directing parties to proceed to arbitration, see §11-15-105.

Criminal penalty for arbitrator taking bribe, see §97-9-5.

JUDICIAL DECISIONS

1. In general.

2. Modification denied.

1. In general.

Trial court exceeded its jurisdiction because it assumed the role of factfinder and reviewed witness testimony outside the arbitration record to determine where and to what extent a miscalculation existed; the arbitrator clearly defined the retainage amounts and subtracted them from the overall award as monies unpaid yet remaining under dispute, and the evident nature of an award’s calculation error would have been enough for the trial court to make its decision. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Courts requested to confirm, modify and/or vacate arbitration awards are not at liberty to permit the examination of witnesses; witness testimony outside the confines of the arbitration record amounts to fact finding by the trial court, exceeding the scope of the court’s review. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Standard by which an appellate court reviews a trial court’s order confirming an arbitration award under the Federal Arbitration Act (FAA) is that questions of law are reviewed de novo and findings of fact are reviewed only for clear error; the State arbitration act presents nearly identical requirements and exceptions for review, and the supreme court embraces this standard of review to evaluate properly the application of the statutes, while reviewing the trial court’s actions for error. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Supreme court recognizes arbitration as a binding, bargained-for, dispute-resolution method, and those matters arbitrated should not be retried by the courts of the State, and accordingly, arbitration awards are considered final, with very few, narrow exceptions outlined by statute; the “evident” (plain, obvious, or clearly understood) miscalculation must be apparent from nothing more than the four corners of the award and the contents of the arbitration record. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Much like the Federal Arbitration Act, the Mississippi construction arbitration statutes significantly limit the grounds for vacation and modification; courts adhering to these rules have no need to hear witness testimony to determine whether an award should be modified or withdrawn. Rather, courts make these decisions based on the evident nature, the clear and obvious presence, of the error in the award. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

Modification of an arbitration award may be had only where the purported mistake is the product of an evident numerical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award, where the award could be corrected without the merits being affected, or where the award is imperfect in a matter of form that does not affect the merits. D'Angelo v. Hometown Concepts, Inc., 791 So. 2d 270, 2001 Miss. App. LEXIS 107 (Miss. Ct. App. 2001).

2. Modification denied.

Circuit court did not err in denying a city’s motion to modify an arbitration award because the city failed to establish an evident miscalculation of figures; because there was no record of the hearing, it was impossible to say that the arbitrator made an “evident miscalculation,” and the arbitrator’s decision cited testimony concerning the contractor’s lost profits. City of Hattiesburg v. Precision Constr., 192 So.3d 1089, 2016 Miss. App. LEXIS 312 (Miss. Ct. App. 2016).

According to Miss. Code Ann. §11-15-125 and Miss. Code Ann. §11-15-135, an arbitration award would be confirmed absent the existence of at least one of the grounds listed for vacating, modifying, or correcting an award; because the subcontractor did not assert any of these grounds in its response asserting that the motion to confirm was premature, its motion to set aside judgment, motion to vacate, or motion to reconsider, the circuit court properly confirmed the award in favor of the general contractor. Johnson Land Co. v. C. E. Frazier Constr. Co., 925 So. 2d 80, 2006 Miss. LEXIS 61 (Miss. 2006).

Modification of an arbitration award was not appropriate as the amount of damages the arbitrator awarded was not the product of an evident miscalculation of figures, but, rather, the amount was simply based upon the lowest repair estimate submitted by the appellants; the amount of damages to which the appellants were entitled was a contested issue of fact, and any judicial correction of the damage award would improperly affect the merits. D'Angelo v. Hometown Concepts, Inc., 791 So. 2d 270, 2001 Miss. App. LEXIS 107 (Miss. Ct. App. 2001).

RESEARCH REFERENCES

ALR.

Disqualification of arbitrator by court or stay of arbitration proceedings for interest, bias, prejudice, collusion, or fraud of arbitrators. 65 A.L.R.2d 755.

Time for impeaching arbitration award. 85 A.L.R.2d 779.

Power of arbitrator to correct, or power of court to correct or resubmit, nonlabor award because of incompleteness or failure to pass on all matters submitted. 36 A.L.R.3d 939.

Setting aside arbitration award on ground of interest or bias of arbitrators. 56 A.L.R.3d 697.

Refusal or arbitrators to receive evidence, or to permit briefs or arguments, on particular issues as grounds for relief from award. 75 A.L.R.3d 132.

Admissibility of affidavit or testimony of arbitrator to impeach or explain award. 80 A.L.R.3d 155.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution § 183.

4 Am. Jur. Proof of Facts 2d, Bias of Arbitrator, §§ 8 et seq. (proof of bias of arbitrator).

CJS.

6 C.J.S., Arbitration §§ 197-235.

§ 11-15-137. Order and judgment on award; enforcement; costs.

Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered and be enforced as any other judgment or decree. Costs may be awarded by the court.

HISTORY: Laws, 1981, ch. 495, § 19, eff from and after July 1, 1981.

JUDICIAL DECISIONS

1. Attorneys’ fees and costs.

Subcontractor was not entitled to attorney’s fees and costs because the supreme court recognized the agreement between the subcontract and the contractor, which held them responsible for their individual costs and fees and dividing the costs of appeal accordingly. D.W. Caldwell, Inc. v. W.G. Yates & Sons Constr. Co., 242 So.3d 92, 2018 Miss. LEXIS 202 (Miss. 2018).

RESEARCH REFERENCES

ALR.

Death of party before award as revocation or termination of submission to arbitration. 63 A.L.R.2d 754.

Liability of parties to arbitration for costs, fees, and expenses. 57 A.L.R.3d 633.

Am. Jur.

4 Am. Jur. 2d, Alternative Dispute Resolution § 181.

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:31 et seq. (Future disputes).

2A Am. Jur. Legal Forms 2d, Arbitration and Award §§ 23:133-23:155, 23:172-23:176 (Present disputes).

§ 11-15-139. Preparation of judgment roll; docketing judgment or decree.

  1. On entry of judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:
    1. The agreement or provision for arbitration and each written extension of the time within which to make the award;
    2. The award;
    3. A copy of the order confirming, modifying or correcting the award; and
    4. A copy of the judgment or decree.
  2. The judgment or decree shall be docketed as if rendered in a civil action.

HISTORY: Laws, 1981, ch. 495, § 20, eff from and after July 1, 1981.

Cross References —

Circuit court dockets, generally, see §9-7-171 et seq.

§ 11-15-141. Court actions from which appeal may be taken.

  1. An appeal from the court may be taken from:
    1. An order denying the application to compel arbitration made under Section 11-15-105;
    2. An order granting an application to stay arbitration made under Section 11-15-105;
    3. An order confirming or denying confirmation of an award;
    4. An order modifying or correcting an award;
    5. An order vacating an award without directing a rehearing; or
    6. A judgment or decree entered pursuant to the provisions of Sections 11-15-101 through 11-15-143.
  2. The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

HISTORY: Laws, 1981, ch. 495, § 21, eff from and after July 1, 1981.

Cross References —

Appeals generally, see §11-51-3 et seq.

RESEARCH REFERENCES

ALR.

Appealability of judgment confirming or setting aside arbitration award. 7 A.L.R.3d 608.

§ 11-15-143. Inapplicability of other arbitration provisions.

Sections 11-15-1, 11-15-3, 11-15-5, 11-15-7, 11-15-9, 11-15-11, 11-15-13, 11-15-15, 11-15-17, 11-15-19, 11-15-21, 11-15-23, 11-15-25, 11-15-27, 11-15-29, 11-15-31, 11-15-33, 11-15-35 and 11-15-37, Mississippi Code of 1972, which provide for the submission for determination of disputed matter to arbitrators selected by law or agreement, shall not be applicable to those agreements enumerated in Section 11-15-101.

HISTORY: Laws, 1981, ch. 495, § 22, eff from and after July 1, 1981.

Chapter 17. Suits to Confirm Title or Interest and to Remove Clouds on Title

§ 11-17-1. Proceedings to confirm tax title.

Any person holding or claiming under a tax title lands heretofore or hereafter sold for taxes, when the period of redemption has expired, may proceed by sworn complaint in the chancery court to have such title confirmed and quieted, and shall set forth in his complaint his claim under the tax sale, and the names and places of residence of all persons interested in the land, so far as known to plaintiff, or as he can ascertain by diligent inquiry. Where the names of persons in interest or their places of residence are unknown and have not been ascertained by diligent inquiry, the complaint shall so state. Where the name and places of residence of persons in interest are given they shall be made parties defendant. Where the complaint shall show that the persons interested are unknown to plaintiff and that he has made diligent inquiry for their names and could not obtain them, all persons interested may be made defendants by a notice addressed: “To all persons having or claiming any interest in the following described land, sold for taxes on (inserting date of sale), viz: (Describing land as described in the tax collector’s conveyance).” The notice shall state the nature of the suit and it shall be published in accordance with the requirements of the Mississippi Rules of Civil Procedure. It shall be lawful in all cases to set forth in the complaint the names of all persons interested, as far as ascertained, and make them parties and also to join and make defendants “all persons having or claiming any legal or equitable interest in” the lands described in the complaint. Such suits shall be proceeded with as other cases; and if the complaints be taken for confessed, or if it appear that plaintiff is entitled to a judgment, it shall be rendered, confirming the tax title against all persons claiming to hold the land by title existing at the time of the sale for taxes. Such judgment shall vest in the plaintiff, without any conveyance by a master or commissioner, a good and sufficient title to said land; and such judgment shall, in all courts of this state, be held as conclusive evidence that the title to said land was vested in the plaintiff, as against all persons claiming the same under the title existing prior to the sale for taxes.

HISTORY: Codes, 1871, § 1753; 1880, § 578; 1892, § 498; 1906, § 548; Hemingway’s 1917, § 305; Laws, 1924, ch. 151; 1930, § 402; 1942, § 1314; Laws, 1991, ch. 573, § 32, eff from and after July 1, 1991.

Cross References —

The constitutional jurisdiction of the Chancery Court to decree title and possession of real property, see Miss. Const. Art. 6, § 160.

Action of unlawful detainer by purchaser of land at tax sale, see §11-25-3.

Limitation of actions concerning title to land, see §§15-1-7,15-1-9,15-1-15,15-1-17.

Records of tax titles, see §§27-41-81,27-41-83.

Map of public trust tidelands; boundary challenges, see §29-15-7.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Right to maintain suit to confirm title.

4. —Title in complainant.

5. —Void or defective title.

6. Defenses.

7. Proceedings in general.

8. —Pleading.

9. —Evidence.

10. —Parties.

11. —Decree.

1. Validity.

The statute is constitutional. Belcher v. MHOON, 47 Miss. 613, 1873 Miss. LEXIS 11 (Miss. 1873).

2. Construction and application generally.

Where in a suit to confirm a tax sale, this section [Code 1942, § 1314] and Code 1942, § 1323, as to special process, had not been complied with, and although it was charged that one of the defendants was residing in the state of Georgia, the bill failed to charge that she was a nonresident of Mississippi, and neither the owner of title at the time of the tax sale, if living, nor his heirs, if he was dead, were made parties, the confirmation decree rendered therein was void. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

The purpose of this statute [Code 1942, § 1314] providing for confirmation of a tax title is that by such a proceeding any further litigation between the same parties, or their successors in title, as to the validity of the tax title, shall be precluded. Hatten v. Jones, 218 Miss. 326, 67 So. 2d 363, 1953 Miss. LEXIS 546 (Miss. 1953).

Where a chancellor committed an error of law in holding that the bill of complaint and exhibits for a decree of confirmation of tax titles were sufficient to warrant a decree of confirmation, but since he had jurisdiction of the subject matter and of the party he had jurisdiction to commit error, and since his decree was not void on its face the same is not subject to a collateral attack seeking to cancel tax claims as clouds upon titles. Hatten v. Jones, 218 Miss. 326, 67 So. 2d 363, 1953 Miss. LEXIS 546 (Miss. 1953).

Where an action was brought to determine the rights of owners to the minerals, and the land involved was subject to railroad right of way and owners of adjoining lands by right of adverse possession were in possession of subsurface minerals under the right of way, the action is one to remove clouds on title rather than suit to quiet and confirm title. Jones v. New Orleans & N. R. Co., 214 Miss. 804, 59 So. 2d 541, 1952 Miss. LEXIS 522 (Miss. 1952).

Purpose of suit to confirm tax title is not only to settle contentions between main parties but is to make tax title good against world, so that there may be no further litigation concerning validity of tax title. Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32, 1936 Miss. LEXIS 94 (Miss. 1936).

Statute authorizing proceeding to confirm tax title, and requiring names of all persons interested in land, so far as known, to be set forth in bill, must be strictly complied with. Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32, 1936 Miss. LEXIS 94 (Miss. 1936).

This section [Code 1942, § 1314] has no application to a suit to recover money paid at a void tax sale. Moores v. Flurry, 87 Miss. 707, 40 So. 226, 1905 Miss. LEXIS 190 (Miss. 1905).

The section [Code 1942, § 1314] applies to every variety and species of tax title. Chrisman v. Currie, 60 Miss. 858, 1883 Miss. LEXIS 25 (Miss. 1883); Metcalfe v. Perry, 66 Miss. 68, 5 So. 232, 1888 Miss. LEXIS 62 (Miss. 1888).

The statute authorizing a rehearing by defendants brought in by publication only, applies to a decree confirming tax titles. Belcher v. Wilkerson, 54 Miss. 677, 1877 Miss. LEXIS 78 (Miss. 1877).

The statute embraces levee tax titles, however acquired. Belcher v. MHOON, 47 Miss. 613, 1873 Miss. LEXIS 11 (Miss. 1873); Beirne v. Burdett, 52 Miss. 795, 1876 Miss. LEXIS 295 (Miss. 1876).

3. Right to maintain suit to confirm title.

4. —Title in complainant.

One seeking to confirm a tax title must recover, if at all, on the validity of his own title. Gregory v. Brogan, 74 Miss. 694, 76 Miss. 694, 21 So. 521, 1897 Miss. LEXIS 43 (Miss. 1897); Davis v. Cass, 72 Miss. 985, 18 So. 454, 1895 Miss. LEXIS 59 (Miss. 1895).

Under this section [Code 1942, § 1314] a complainant must show either a legal or an equitable title to the land described in the bill of complaint before the court will entertain the bill or grant the relief therein prayed for. Reliance Inv. Co. v. Johnson, 188 Miss. 227, 193 So. 630, 1940 Miss. LEXIS 12 (Miss. 1940).

Plaintiff must prove title to land in himself. Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709, 1924 Miss. LEXIS 196 (Miss. 1924).

In suit to confirm title plaintiff must plead and prove perfect title. Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619, 1917 Miss. LEXIS 146 (Miss. 1917).

Complainant must show title in himself. Peterson v. Kittredge, 65 Miss. 33, 3 So. 65, 1887 Miss. LEXIS 10 (Miss. 1887).

5. —Void or defective title.

Where the owner of land applied in good faith to the tax collector for the purpose of ascertaining the amount of taxes and paying the same, and was prevented from making payment by the error or mistake of the collector, the attempt to pay was the equivalent of payment, and the subsequent sale of the land in question for nonpayment of taxes was void, and the purchaser at the sale acquired no title which would support a decree of confirmation. Williams v. Scott, 251 Miss. 533, 170 So. 2d 621, 1965 Miss. LEXIS 880 (Miss. 1965).

Purchasers were entitled to a return of their deposit made in connection with their contract to purchase land in view of the delay of the sellers in procuring a supposed marketable title and because, in view of this section [Code 1942, § 1314] and Code 1942, § 1391, certain rights of appeal remained in regard to the necessary confirmation of tax title to the property which could still affect the validity thereto. Hyde v. Berggren, 249 Miss. 860, 164 So. 2d 454, 1964 Miss. LEXIS 441 (Miss. 1964).

Where defendants were in adverse possession of land but before they acquired title, the tax title of both city and state ripened, and where a suit to confirm title was commenced within ten years after the city parted with its title, defendants could not and did not acquire title by adverse possession. Melvin v. Parker, 223 Miss. 430, 78 So. 2d 477, 1955 Miss. LEXIS 399 (Miss. 1955).

Deed of purchaser at tax sale for unpaid taxes was not sustained, in suit to quiet title, where owner introduced into evidence duplicate receipt, issued pursuant to Hemingway’s Code, 1927, § 8241, showing owner paid taxes and where owner orally testified that he paid the taxes and such testimony was uncontradicted. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Any ambiguity in description of the land in the assessment or tax deed does not render the tax proceeding void, but is curable by parol. Martin v. Smith, 140 Miss. 168, 105 So. 494, 1925 Miss. LEXIS 246 (Miss. 1925).

A tax title, where the sale is based upon a roll not returned at the time required by law and the description is void for uncertainty, will not be confirmed. Pearce v. Perkins, 70 Miss. 276, 12 So. 205, 1892 Miss. LEXIS 103 (Miss. 1892).

6. Defenses.

Delay did not estop true owner from asserting title against purchaser at invalid tax sale where tax purchaser made no improvements or any expenditures or otherwise changed his position, except for payment of taxes subsequent to sale, which amount was offset by sums received as cash consideration for oil and gas lease and by rents paid by tenants. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Defendant, whose interest in the land in question was totally extinguished by the tax sale to the state and the elapse of the period of redemption, could not set up as against the complainant the defense of fraud in the procurement of a patent to such land from the state by complainant’s predecessor, since such matter could only be raised by the Land Commissioner, and accordingly, complainant was entitled to a decree confirming the title in him as against the defendant, where defendant’s evidence did not disclose facts which rendered any of the deeds in the complainant’s chain of title nullity. Reliance Inv. Co. v. Johnson, 188 Miss. 227, 193 So. 630, 1940 Miss. LEXIS 12 (Miss. 1940).

Defendant must have an interest in the land or his defense will not be heard. Chrisman v. Currie, 60 Miss. 858, 1883 Miss. LEXIS 25 (Miss. 1883).

7. Proceedings in general.

This statute applies only where the court rendering the decree of confirmation has jurisdiction of the subject matter and the parties and renders such a decree valid on its face, and as between the parties who are before the court by a valid service of process. Hatten v. Jones, 218 Miss. 326, 67 So. 2d 363, 1953 Miss. LEXIS 546 (Miss. 1953).

8. —Pleading.

In suit to cancel tax title, as cloud on title, affirmative relief declaring tax title to be valid could not be granted in absence of cross bill. Webb v. Anderson, 206 Miss. 398, 40 So. 2d 189, 1949 Miss. LEXIS 270 (Miss. 1949).

In deraignments of title, where confirmation of title is sought, the complainant must give the facts of his title and a mere allegation of ownership is insufficient, being simply a legal conclusion. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

It is not necessary to exhibit with a bill to confirm a tax title a certified copy of the list of sales made to the state. Campbell v. Wilson, 194 Miss. 746, 13 So. 2d 624, 1943 Miss. LEXIS 101 (Miss. 1943).

Where a certified copy of the list of tax sales to the state is not exhibited with a bill to confirm a tax title to land, it is necessary to allege in terms of fact and not by way of mere legal conclusion that every successive step essential to the validity of the tax sale-alleging the facts as to each essential step-was had and taken by the taxing authorities, inclusive from the original assessment by the tax assessor down to the sale itself. Campbell v. Wilson, 194 Miss. 746, 13 So. 2d 624, 1943 Miss. LEXIS 101 (Miss. 1943).

Failure to allege in bill to confirm a tax title that there was legal process upon or notice to the taxpayer prior to the equalization of the assessment roll was fatal to the validity of a decree, where no certified copy of the list of tax sales to the state was made an exhibit through the bill. Campbell v. Wilson, 194 Miss. 746, 13 So. 2d 624, 1943 Miss. LEXIS 101 (Miss. 1943).

Complaint, in suit to confirm title to land under patent issued plaintiff in 1936, which alleged that prior patent was issued to another in 1926 but failed to allege that original buyer was given notice of sale or that he did not obtain lands in good faith or that price was unfair and unreasonable, was demurrable. Easterling v. Howie, 179 Miss. 680, 176 So. 585, 1937 Miss. LEXIS 65 (Miss. 1937).

In proceeding to confirm tax title, clerk’s tax sale books should be made exhibits to bill, or bill should allege that required notice was given to parties whose interests are affected, so that court may see that there are no outside liens. Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32, 1936 Miss. LEXIS 94 (Miss. 1936).

Where a bill to confirm a tax title alleges a valid sale for taxes and exhibits a tax deed in statutory form it cannot be assumed on demurrer that the assessment was under the unconstitutional act of 1888 (laws, p. 24) because the tax deed recites that the sale was for taxes assessed for 1890. Coffee v. Coleman, 85 Miss. 14, 37 So. 499, 1904 Miss. LEXIS 131 (Miss. 1904).

A demurrer to a bill in equity to confirm a tax deed does not admit the validity of the deed, although the bill avers that the recital in the deed of the year for whose taxes the land was sold was a clerical error, that the tax collector intended to have it recite that the sale was made for the year preceding the one actually recited, and that the sale in fact was made for the taxes of the preceding year. Bower v. Chess & Wymand Co., 83 Miss. 218, 35 So. 444, 1903 Miss. LEXIS 35 (Miss. 1903).

9. —Evidence.

In a suit to confirm tax title to land in city assessed and sold to city and state for delinquent taxes, testimony of a person who had platted the subdivision that fence was the dividing line between a platted subdivision and land retained by the former owner as his home was inadmissible. Melvin v. Parker, 223 Miss. 430, 78 So. 2d 477, 1955 Miss. LEXIS 399 (Miss. 1955).

Purchaser at tax sale who seeks to have tax title quieted and confirmed has burden of proving valid assessment of land for taxes and that taxes for which land was offered for sale had not been paid. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

Tax deed is prima facie evidence of legal assessment and sale. Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241, 1919 Miss. LEXIS 132 (Miss. 1919); Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950); Melvin v. Parker, 223 Miss. 430, 78 So. 2d 477, 1955 Miss. LEXIS 399 (Miss. 1955).

10. —Parties.

A record owner of land by direct chain of title from the government is a necessary party to proceeding to confirm tax title to land against the state and all persons interested therein and, aware that no process was served on him, he is not precluded from asserting the invalidity of the tax sale. Leech v. Masonite Corp., 219 Miss. 176, 68 So. 2d 297, 1953 Miss. LEXIS 379 (Miss. 1953).

In suit to confirm tax title to certain lands and to cancel defendants’ claims to interest therein, complainant was not entitled to a decree of confirmation where there was no compliance with the requirements of special process to all persons having or claiming any legal or equitable interests in the lands, although prayer for cancelation of defendants’ claims as clouds upon complainant’s title was correctly decreed. Stern v. Parker, 200 Miss. 27, 25 So. 2d 787, 1946 Miss. LEXIS 266 (Miss. 1946).

In proceedings to confirm tax titles, the owner of the land at the time of a sale for delinquent taxes is a necessary party. Helbig v. Hooper, 200 Miss. 282, 25 So. 2d 404, 1946 Miss. LEXIS 292 (Miss. 1946).

Bill for confirmation of title to land as against persons unknown must comply with the requirements of this section [Code 1942, § 1314] in respect to making such person defendant by notice. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

In suit by purchaser at tax sale to confirm tax title, failure to make owners of land at time of sale, who were known to purchaser, parties to suit, held reversible error, notwithstanding that their interest had been divested by trust deed foreclosure sale subsequent to tax sale. Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32, 1936 Miss. LEXIS 94 (Miss. 1936).

Proceeding to confirm tax titles held void because publication of summons was for unknown parties only, though apparent owners appeared on face of pleadings. Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709, 1924 Miss. LEXIS 196 (Miss. 1924).

Owners of land sold for taxes necessary parties defendant to proceedings to confirm tax titles and those acquired by adverse possession. Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709, 1924 Miss. LEXIS 196 (Miss. 1924).

Bill to confirm tax title is demurrable where one named in the tax deed exhibited as the person assessed with the taxes for which the land was sold is not made a defendant. Smith v. W. Denny & Co., 90 Miss. 434, 43 So. 479, 1907 Miss. LEXIS 75 (Miss. 1907).

11. —Decree.

Decree confirming complainant’s title to all minerals on or under certain land cannot stand where decree was taken against defendant prior to the due date of its answer, plea or demurrer. Kalmia Realty & Ins. Co. v. Hendrix, 25 So. 2d 407 (Miss. 1946).

Confirmation decree is void and no defense to ejectment suit by those claiming under owner where a state conveyed to complainant, a stranger to the title, before redemption period expired. Magee v. Turner, 92 Miss. 438, 46 So. 544, 1908 Miss. LEXIS 241 (Miss. 1908).

Upon decree quieting complainant’s title to land and cancelling defendant’s tax title: (a) it was proper to allow defendant the sum paid by him as purchaser at tax sale with 25% damages and 10% per annum interest thereon, the land being taxable at time of sale; but (b) where land not taxable at the time it was proper to disallow defendant money paid state to redeem, and allow him only taxes paid after land became taxable with 6% per annum thereon; and (c) it was improper not to divide costs of an accounting equally between the parties, there being charges against both; and (d) it was improper to disallow complainant’s well proven claim for rent on part of the land. McMahon v. Yazoo Delta Lumber Co., 92 Miss. 459, 43 So. 957, 1908 Miss. LEXIS 172 (Miss. 1908).

Confirmation of a tax title carries with it the right of way of a railroad company, but not its tracks and superstructure. Illinois C. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760, 1897 Miss. LEXIS 57 (Miss. 1897).

RESEARCH REFERENCES

ALR.

Real property quiet-title actions against United States under Quiet Title Act (28 USCS § 2409a). 60 A.L.R. Fed. 645.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 17, 20.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 31 (Complaint, petition, or declaration by purchaser of tax-deeded property to quiet title).

20 Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 32 (Complaint, petition, or declaration by owner of property to remove tax deed as cloud on title).

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-3. Confirmation of state land patents.

Any patentee, or any person, firm or corporation, claiming title or other interest in land under or through any patentee by virtue of any patent issued by the state for lands forfeited to the state for nonpayment of taxes, whether such claimant be in possession or not, or be threatened to be disturbed in his possession or not, may proceed as party plaintiff against the state, as a party defendant, by sworn complaint in the chancery court of the county where the land, or some part thereof, is situated, to have such title or interest confirmed and quieted. No deraignment of plaintiff’s title in such cases shall be required.

HISTORY: Codes, 1942, § 1315; Laws, 1940, ch. 309; Laws, 1991, ch. 573, § 33, eff from and after July 1, 1991.

Cross References —

Effect of actual occupation under tax title, see §15-1-15.

Confirmation of bridge and park commission’s title to submerged lands, see §55-7-13 et seq.

Procedural rules applicable to civil actions, see Mississippi Rules of Civil Procedure, Rule 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Parties.

3. Validity of assessment.

4. Effect of invalid tax sale.

1. In general.

Where an action was brought in 1945 against the state to confirm a forfeited tax land patent and there was an adjudication of validity of the patent, and that though fraud had been perpetrated, the land commissioner and attorney general properly refused to cancel the tax sale to state and patent issued thereunder in an action brought therefor in 1949 by the heirs of the original owner of forfeited lands. Carney v. Anderson, 214 Miss. 504, 58 So. 2d 13, 1952 Miss. LEXIS 494 (Miss. 1952).

Where in 1931 a deed of trust on certain land was issued to a bank as security for a loan, and later that land was sold at a tax sale and not redeemed, in 1939 the bank’s remedy at law to recover the debt was barred by statute of limitations and direct remedy in equity was likewise barred. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Defendant in a quiet title action could not challenge the validity of a patent from the state to tax forfeited land on the ground that the consideration therefor was grossly inadequate where, in a prior action by plaintiff to confirm his title, the chancery court had adjudicated that the patent from the state to the plaintiff was valid and confirmed the plaintiff’s title against the state. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

The purpose of this act was to stabilize and validate public land titles and promote the private use and enjoyment of such land, to quiet title to same, and to enable owners thereof to procure full right of ownership and title in fee simple thereto. State v. Cummings, 203 Miss. 583, 35 So. 2d 636, 1948 Miss. LEXIS 310 (Miss. 1948).

Where bank and its lessee sought confirmation of tax title in two separate suits based upon two different tax sales of the same land to the state, which suits had been consolidated, chancellor did not err in rescinding order of consolidation. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

The benefit of this statute relating to validity and quieting title based on tax forfeited land patents is available to purchasers who acquired land through patents issued subsequently to its enactment, as well as to those who acquired land through patents issued prior to its passage. State v. Lewis, 192 Miss. 890, 7 So. 2d 871, 1942 Miss. LEXIS 71 (Miss. 1942).

Nor does this statute violate § 95 of the Constitution of 1890, nor the constitutional provision (§ 100, Const. 1890) prohibiting the remission, relief or postponement by the legislature of any obligation or liability held or owned by the state. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

This is a procedural statute, under which the claimant of tax forfeited lands, in the event of his not being guilty of fraud or violation of any positive statute can obtain a judicial determination of this fact; and the presumption is in favor of the existence and due performance of all the conditions upon which the validity of the patent depends. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

This statute does not violate §§ 87 and 90(u) of the Constitution of 1890, forbidding the enactment of special or local laws in certain enumerated cases. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942); State v. Lewis, 192 Miss. 890, 7 So. 2d 871, 1942 Miss. LEXIS 71 (Miss. 1942).

2. Parties.

A record owner of land by direct chain of title from the government is a necessary party to proceeding to confirm tax title to land against the state and all persons interested therein and aware that no process was served on him, he is not precluded from asserting the invalidity of the tax sale. Leech v. Masonite Corp., 219 Miss. 176, 68 So. 2d 297, 1953 Miss. LEXIS 379 (Miss. 1953).

In suit to confirm tax title to certain lands and to cancel defendants’ claims therein, complainant was not entitled to a decree of confirmation where there was no compliance with the requirement of this section [Code 1942, § 1315] that the state be made a party with process served on the attorney general, although complainant was entitled to a decree canceling defendants’ claim as clouds upon complainant’s title. Stern v. Parker, 200 Miss. 27, 25 So. 2d 787, 1946 Miss. LEXIS 266 (Miss. 1946).

General statutes as to service on or making the land commissioner a party on behalf of the state, do not apply to proceedings brought under this section [Code 1942, § 1315]. Pace v. Wedgeworth, 198 Miss. 1, 20 So. 2d 842, 1945 Miss. LEXIS 162 (Miss. 1945).

Intervenor, in filing cross-bill claiming title to the land in proceeding by patentee under this section [Code 1942, § 1315] to quiet title thereto, was not required to have process served on the state land commissioner. Pace v. Wedgeworth, 198 Miss. 1, 20 So. 2d 842, 1945 Miss. LEXIS 162 (Miss. 1945).

3. Validity of assessment.

In suit to confirm tax title wherein state and original complainants claiming through purchasers thereof from state, specifically alleged that land in question had been duly and legally assessed, and former owner denied legality of assessment, both original complainants and state under its cross-bill were required in order to obtain such relief to prove that the land had been duly and legally assessed. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

Specific allegations by original complainants and state in suit to confirm tax title that land in question, situated in the first judicial district of Jones county, was duly and legally assessed would include approval of assessment rolls in first judicial district of such county at the August meeting of the Board of Supervisors sitting at Ellisville in such district. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

Where proof, which went in without objection in trial court, disclosed affirmatively that the minutes of the meeting of the board of supervisors of Jones County at Ellisville, at which order approving assessment rolls of the first judicial district of such county was entered, were not signed by the president of the board as required by law, effect of failure to sign the minutes on the validity of the assessment and subsequent tax sale of land assessed was sufficiently raised by former owner’s denial of legality of the assessment as alleged in the original bill and cross-bill of the state in suit to confirm tax title. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

Where the only sitting of the board of supervisors of Jones County at Ellisville in the First Judicial District during August was on a specific date at which an order was entered for approval of the assessment roll for lands in the First Judicial District, and the minutes for such meeting were not signed by the president of the board, the assessment and subsequent tax sale based thereon were void, and state acquired no title by virtue of such sale as to warrant confirmation thereof either by the state or persons claiming through purchasers from the state. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

Assessment description of certain lands as “N W 1/4 S W 1/4, less 6A, Section 2, Township 2, Range 18,” although containing patent ambiguity by reason of the statement “less 6A,” did not render the tax sale to the state void because of indefinite description where the tax conveyance to the state contained a clue, which traced through the assessment rolls and the deeds of conveyances, ultimately led to a definite description of excepted 6 acres, the assessment rolls and deeds of conveyances being admissible in evidence to clarify the ambiguity. Jefferson v. Walker, 199 Miss. 705, 24 So. 2d 343, 1946 Miss. LEXIS 241 (Miss. 1946).

4. Effect of invalid tax sale.

Decree in a confirmation suit adjudicating the validity of a patent from the state to tax forfeited land, which did not purport to affect claims of defendant in a subsequent quiet title action either by adverse possession or under a quitclaim deed from the owner at the time of the tax sale, does not preclude such defendant from asserting adverse possession or invalidity of the tax sale. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

One bringing an action under this section [Code 1942, § 1315] was not entitled to a decree confirming his title as vendee of a patentee where the tax sale to the state after the regular time for sale had passed was void because the board of supervisors had fixed the time for such sale before the regular date therefor had expired. Hooper v. Walker, 201 Miss. 158, 29 So. 2d 72, 1947 Miss. LEXIS 381 (Miss. 1947).

Where neither the state, the patentees, nor subsequent vendees of land sold to the state for taxes acquired any title thereto because of invalidity of tax sales, oil company taking lease from subsequent vendee acquired no greater right than the state had, even though it may have been innocent of the want of authority of its lessor to purchase the land, and, therefore, a decree confirming the lease was erroneous. Merchants & Mfgs. Bank v. State, 200 Miss. 291, 25 So. 2d 585, 1946 Miss. LEXIS 293 (Miss. 1946).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-5. Confirmation of state land patents; duty of attorney general.

The attorney general, in proper cases after investigation, shall file an answer in all such cases setting up any defense on the part of the state of Mississippi, and all of the pleadings in such cases shall be the same as in other cases in chancery. The said cause shall be heard and determined as other cases in chancery.

HISTORY: Codes, 1942, § 1316; Laws, 1940, ch. 309.

Cross References —

Constitutional provision conferring power upon chancery court to decree title to real estate, see Miss. Const. Art. 6, § 160.

Another section derived from same 1942 code section, see §11-17-7.

Confirmation of bridge and park commission’s title to submerged lands, see §§55-7-15,55-7-17.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In an action by a bank against the state to quiet title where the rights and remedies of the bank under a deed of trust were barred by the statute of limitations at the time the bank acquired a tax forfeited land patent and where the patent was void, the absence of a specific plea of statute of limitations was not defective and the bank was not entitled to quiet title. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Dismissal of suit to confirm forfeited tax patent, upon adjudication of invalidity, without cancelation of invalid patents, was proper, in absence of cross-bill by state asking such affirmative relief. State v. Harper, 195 Miss. 580, 15 So. 2d 680, 16 So. 2d 29, 1943 Miss. LEXIS 162 (Miss. 1943).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-7. Confirmation of state land patents; powers of court.

The court is hereby granted large discretion and far reaching powers in the matter of establishing and fixing the validity of land patents issued by the state and title conveyed thereunder, and the sound discretion of the court in deciding all such cases shall be the controlling factor in settling the issues where only state interests are involved. No decree pro confesso shall be taken against the state, but on failure of the attorney general to answer within the time required by law, the cause shall be heard on the bill and proof thereon.

HISTORY: Codes, 1942, § 1316; Laws, 1940, ch. 309.

Cross References —

Constitutional provision conferring power upon chancery court to decree title to real estate, see Miss. Const. Art. 6, § 160.

Another section derived from same 1942 code section, see §11-17-5.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

The rule that even where the debt secured by a mortgage is barred by the statute of limitations, the mortgagee cannot be deprived of possession by the mortgagor until the debt is paid does not apply in an action by a bank against the state to quiet title where the rights of the bank under a deed of trust were barred by the statute of limitations at the time the bank acquired a tax forfeited land patent and the patent was void. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Where in 1931 a deed of trust on certain land was issued to a bank as security for a loan, and later that land was sold at a tax sale and not redeemed, in 1939 the bank’s remedy at law to recover the debt was barred by statute of limitations and direct remedy in equity was likewise barred. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-9. Confirmation of state land patents; decree; effect of fraud and failure to pay purchase price.

Upon the hearing of such cases, it shall be the duty of the chancery court to enter a decree validating and perfecting the title of said land from the state of Mississippi, unless it shall appear to the court and the court shall find as a fact that the state has not acquired title to said land by virtue of said tax sale, or that the title to the said land involved in the suit was divested out of the state of Mississippi without payment of purchase price or by reason of actual fraud on the part of the patentee, or his representatives. In such cases of fraud and failure to pay purchase price, the chancery court shall enter a decree forever annulling and cancelling the said patent; but no patent heretofore issued shall be cancelled in such proceeding because of loss of the application papers to purchase said land, or because of errors or omissions or incorrect statements in said application, or other papers in connection with the sale of said land, such matters not constituting fraud as above defined.

HISTORY: Codes, 1942, § 1317; Laws, 1940, ch. 309.

Cross References —

Suits to cancel patents to lands fraudulently obtained or issued, see §29-1-9.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Fraud of patentee.

3. Payment of purchase price.

4. Errors or omissions.

1. In general.

It was not the intention of the legislature that this section [Code 1942, § 1317] would in any way effect § 4109, Code of 1942, which makes provisions as to who may not purchase public lands. State v. Magnolia Bank, 212 Miss. 47, 53 So. 2d 79, 1951 Miss. LEXIS 426 (Miss. 1951).

Where five years after issuance of a state land patent sought to be cancelled by the state the land was again sold for taxes, after which the purchaser at the latter tax sale sold the property to third parties, and some ten years had elapsed since issuance of the patent during which the land was taxed as private property, the equities of the innocent purchasers were protected by the patent as highest evidence of title. State ex rel. McCullen v. Sproles, 200 Miss. 678, 28 So. 2d 218, 1946 Miss. LEXIS 338 (Miss. 1946).

Dismissal of suit to confirm forfeited tax patent, upon adjudication of invalidity, without cancelation of invalid patents, was proper, in absence of cross bill by state asking such affirmative relief. State v. Harper, 195 Miss. 580, 15 So. 2d 680, 16 So. 2d 29, 1943 Miss. LEXIS 162 (Miss. 1943).

This section [Code 1942, § 1317] was construed to be in keeping with the declared intention in Code 1942, § 1321, that the same should be liberally construed to validate and quiet title to such lands as had been theretofore patented, leaving the courts free and unhampered by any suggestions from the legislature in deciding such issues as might arise in suits to confirm and quiet title under patents thereafter issued. State v. Lewis, 192 Miss. 890, 7 So. 2d 871, 1942 Miss. LEXIS 71 (Miss. 1942).

This section [Code 1942, § 1317] does not violate the constitutional provision (§ 87) prohibiting special or local laws in cases which are or can be provided for by general law or the constitutional provision (§ 90 u) forbidding the passage of local, private, or special laws with respect to granting any land under the control of the state to any person or corporation. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

2. Fraud of patentee.

This section [Code 1942, § 1317] requires establishment of actual fraud on the part of the patentee, or his representative, in procuring the patent before it can be cancelled on the ground of fraud. State v. Cummings, 203 Miss. 583, 35 So. 2d 636, 1948 Miss. LEXIS 310 (Miss. 1948).

Actual fraud is intentional fraud, an intent to deceive being an essential element thereof; it means fraud according to the common conscience, and that the party charged therewith was inspired by a deliberate, fraudulent purpose to injure and deceive the party complaining; it implies deceit, artifice and design, and imports the active operation of the mind; it consists in deception, intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed; and it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent, cheat or deceive another, falsehood being an ingredient thereof. State v. Cummings, 203 Miss. 583, 35 So. 2d 636, 1948 Miss. LEXIS 310 (Miss. 1948).

Actual fraud requiring cancellation of patent from state was not shown by evidence as to defendant’s answers to questions in his application for purchase of tax forfeited land with respect to acres of timber thereon and as to the amount of state land purchased by applicant during a particular year. State v. Cummings, 203 Miss. 583, 35 So. 2d 636, 1948 Miss. LEXIS 310 (Miss. 1948).

In determining whether patentee committed fraud in deliberately misrepresenting the value of the land, such value is determinable as of the date of the patent and not as of the date of the trial. Jefferson v. Walker, 199 Miss. 705, 24 So. 2d 343, 1946 Miss. LEXIS 241 (Miss. 1946).

Lessee of patentee having notice when it purchased its lease of actual fraud committed by the patentee in deliberately misrepresenting the value of the land is bound by such fraud. Jefferson v. Walker, 199 Miss. 705, 24 So. 2d 343, 1946 Miss. LEXIS 241 (Miss. 1946).

Construction of the phrase “actual fraud on the part of the patentee, or his representative,” contained in this section [Code 1942, § 1317] was not unconstitutional as suspending the operation of any general law for the benefit of any individual, private corporation or association. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

Words “actual fraud on the part of the patentee or his representative,” are construable to mean such fraud in the procurement of the patent as the making of false statements to, or intentionally withholding important information from, the state land commissioner as to material facts in regard to which the applicant is required to make a disclosure under oath, and which false representations were either known to be false or were made in reckless disregard of whether the same were true or false. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

3. Payment of purchase price.

Defendant in a quiet title action could not challenge the validity of a patent from the state to tax forfeited land on the ground that the consideration therefor was grossly inadequate where, in a prior action by plaintiff to confirm his title, the chancery court had adjudicated that the patent from the state to the plaintiff was valid and confirmed the plaintiff’s title against the state. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

In an action to quiet title to tax forfeited land which plaintiff had obtained by patent from the state, the validity of which had been confirmed by an action against the state, defendant, claiming title under a quitclaim deed from the record owner and by adverse possession, could not challenge the validity of such patent on the ground of grossly inadequate consideration, since the validity of a patent from the state can be challenged only in a proceeding instituted for that purpose by the state land commissioner on behalf of the state. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

The mere fact that the treasurer’s receipt for the purchase price of land was not on file more than ten years after the issuance of a patent was not sufficient alone to overturn the solemn recitals of the patent as to its payment. State ex rel. McCullen v. Sproles, 200 Miss. 678, 28 So. 2d 218, 1946 Miss. LEXIS 338 (Miss. 1946).

The phrase “without payment of purchase price,” would be construed to mean a purchase price not so grossly inadequate as to amount to a donation of the land from the state to the patentee in contravention of the constitutional provision (§ 95) prohibiting the donation, directly or indirectly, to individuals or corporations, of any of the land belonging to, or under the control of the state. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

4. Errors or omissions.

Record evidence, such as the deed record and assessment rolls, are competent in aid and clarification of the description of land sold at tax sale, so that such evidence may save the tax sale even though otherwise it would be invalid because of indefinite description. Simmons v. State, 199 Miss. 271, 24 So. 2d 660, 1946 Miss. LEXIS 192 (Miss. 1946).

Where tax sale to state was illegal because of indefinite description of the land so that the state acquired no title thereby, title of claimant under patent from state could not be quieted and confirmed as between claimant and the state, although the state alone was made a party respondent and the state conveyed by the patent what it got under the tax sale. Simmons v. State, 199 Miss. 271, 24 So. 2d 660, 1946 Miss. LEXIS 192 (Miss. 1946).

Description of land in tax sale to the state as the NE 1/4 of the NE 1/4 “less 2a” in a designated section, township, and range, was too indefinite and the tax sale was consequently illegal, unless the description could be aided and clarified by record evidence, such as the deed records and assessment rolls. Simmons v. State, 199 Miss. 271, 24 So. 2d 660, 1946 Miss. LEXIS 192 (Miss. 1946).

Assessment description of certain lands as “N W 1/4 S W 1/4, less 6A, Section 2, Township 2, Range 18,” although containing patent ambiguity by reason of the statement “less 6A,” did not render the tax sale to the state void because of indefinite description where the tax conveyance to the state contained a clue, which traced through the assessment rolls and the deeds of conveyance, ultimately led to a definite description of excepted 6 acres, the assessment rolls and deeds of conveyance being admissible in evidence to clarify the ambiguity. Jefferson v. Walker, 199 Miss. 705, 24 So. 2d 343, 1946 Miss. LEXIS 241 (Miss. 1946).

The words “errors or omissions or incorrect statements in said application,” contained in the final provision hereof, should be construed to mean errors, omissions or incorrect statements not amounting to fraud, within the meaning of the statute, since the preceding portion of this section authorizes the court upon the hearing of such cases to refuse to validate or perfect the title in the complainant where actual fraud has been perpetrated upon the state in obtaining the patent, and directs the granting of affirmative relief to the state in such case, rather than to permit a donation of the land in violation of the Constitution. State v. Roell, 192 Miss. 873, 7 So. 2d 867, 1942 Miss. LEXIS 70 (Miss. 1942).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 4.

37 Am. Jur. 2d, Fraud and Deceit §§ 192- 193.

CJS.

30A C.J.S., Equity §§ 47-52.

§ 11-17-11. Confirmation of state land patents; appeals.

Any of the parties to the suit may appeal as in other proceedings in chancery, provided any interlocutory appeal is taken within ten days after the rendition of the decree from which the appeal is desired, and provided that any final appeal is taken within sixty days from the date of the rendition of the final decree.

HISTORY: Codes, 1942, § 1318; Laws, 1940, ch. 309.

Cross References —

Appeals from final decree, see §11-51-3.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 132, 133.

§ 11-17-13. Confirmation of state land patents; res judicata.

Any land patent and title perfected by a decree in a suit under Sections 11-17-3 through 11-17-17 shall forever estop and preclude the state and other parties from thereafter questioning the validity of the patent involved in such proceeding.

HISTORY: Codes, 1942, § 1319; Laws, 1940, ch. 309.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Defendant in a quiet title action could not challenge the validity of a patent from the state to tax forfeited land on the ground that the consideration therefor was grossly inadequate where, in a prior action by plaintiff to confirm his title, the chancery court had adjudicated that the patent from the state to the plaintiff was valid and confirmed the plaintiff’s title against the state. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

Decree in a confirmation suit adjudicating the validity of a patent from the state to tax forfeited land, which did not purport to affect claims of defendant in a subsequent quiet title action either by adverse possession or under a quitclaim deed from the owner at the time of the tax sale, does not preclude such defendant from asserting adverse possession or invalidity of the tax sale. Comfort v. Landrum, 52 So. 2d 658, 1951 Miss. LEXIS 531 (Miss. 1951).

RESEARCH REFERENCES

ALR.

Admissibility of evidence of, or propriety of comment as to, plaintiff-spouse’s remarriage, or possibility thereof, in action for damages for death of other spouse. 88 A.L.R.3d 926.

Am. Jur.

27A Am. Jur. 2d, Equity § 124.

§ 11-17-15. Confirmation of state land patents; duty of district attorney and county attorney.

It is hereby made the duty of the district attorneys and county attorneys in their respective jurisdictions to fully cooperate with the attorney general in the investigation and trial of all cases filed under Sections 11-17-3 through 11-17-17; and, at the request of the attorney general, such officers shall investigate the facts involved and file such answers and perform such other reasonable services in connection therewith as the attorney general may request.

HISTORY: Codes, 1942, § 1320; Laws, 1940, ch. 309.

Cross References —

Authority of attorney general to require assistance of district attorney, see §7-5-37.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

ALR.

Construction of “marketable title,” ancient claims extinguishment,“ and like statutes, terminating or limiting enforcement of claims respecting real property, based on old records, instruments, or events. 71 A.L.R.2d 846.

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-17. Confirmation of state land patents; construction of Sections 11-17-3 through 11-17-17.

Sections 11-17-3 through 11-17-17 shall be liberally construed to validate and quiet title to lands heretofore passing under patent from the state and shall in no way be construed as repealing or limiting any other statutes now existing in aid of such titles under patents from the state.

HISTORY: Codes, 1942, § 1321; Laws, 1940, ch. 309.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Statutory provisions making it the duty of the courts to enter a decree validating and perfecting title based on tax-forfeited land patents, etc., were construed to be in keeping with the declared intention in this section that the same should be liberally construed to validate and quiet title to such lands as had been theretofore patented, leaving the courts free and unhampered by any suggestions from the legislature in deciding such issues as might arise in suits to confirm and quiet title under patents thereafter issued. State v. Lewis, 192 Miss. 890, 7 So. 2d 871, 1942 Miss. LEXIS 71 (Miss. 1942).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

§ 11-17-19. Confirmation of title or interests granted by political subdivision.

Any person, firm or corporation which claims title to or a leasehold or other interest in any real property, other than sixteenth section school lands or lands granted in lieu thereof, under or by virtue of a sale, conveyance or lease of such property by any county, municipality, supervisor’s district, or other political subdivision of the State of Mississippi, acting either separately or jointly, may proceed by sworn complaint in the chancery court of the county in which such real property, or some part thereof, is located, to have the title to or leasehold or other interest in such real property quieted and confirmed. Such action may be brought whether or not such person, firm or corporation be in possession of such real property, or whether he or it be threatened to be disturbed in such possession or not. In such complaint, the person, firm or corporation claiming such title or leasehold or other interest shall be the party plaintiff and there shall be made defendants thereto the county, municipality or other political subdivision which sold, conveyed or leased said property, the Attorney General of the state and the district attorney of the county in which said suit is filed. In any such suit, it shall not be necessary that the plaintiff therein deraign his title to said property.

HISTORY: Codes, 1942, § 1322-01; Laws, 1954, ch. 248, § 1; Laws, 1991, ch. 573, § 34, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 17, 20.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-21. Proceedings in suit for confirmation of title granted by political subdivision; defaults.

All proceedings in said suit shall be governed by the Mississippi Rules of Civil Procedure. However, no default judgment shall be entered against the defendants unless the court determines the truth of the averments after a hearing pursuant to the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1942, § 1322-02; Laws, 1954, ch. 248, § 2; Laws, 1991, ch. 573, § 35, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 17, 20.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

CJS.

30A C.J.S., Equity §§ 84-99, 129.

§ 11-17-23. Confirmation of title or interest granted by political subdivision; decree; res judicata.

In all such proceedings the court shall find whether the sale, conveyance or lease of such real property was lawful and valid. Upon the hearing of such case, the chancery court shall enter a decree validating and confirming the complainant’s title to or leasehold or other interest in such real property as against the defendants in said suit, unless it shall appear to the court and the court shall find that the title thereto or leasehold or other interest therein was not lawfully and validly acquired by virtue of the sale, conveyance or lease under which such complainant claims, in which latter case the chancery court shall enter a decree annulling and cancelling such sale, conveyance or lease, or such other decree as the court may find to be lawful, just and equitable in such case. When any sale, conveyance or lease of any such property shall be confirmed and validated under the provisions of Sections 11-17-19 through 11-17-27 by decree of the chancery court, such decree shall forever estop and preclude the defendants and all other parties from thereafter questioning the validity of the sale, conveyance or lease involved in such proceedings.

HISTORY: Codes, 1942, § 1322-03; Laws, 1954, ch. 248, § 3.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity § 124.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 60- 63.

§ 11-17-25. Confirmation of title or interest granted by political subdivision; appeals.

Any of the parties to a confirmation suit filed under the provisions of Sections 11-17-19 through 11-17-27 may appeal from the decree of the chancery court in the manner and within the time provided by law, and such appeals shall be heard as are other cases of appeals from the decrees of the chancery court.

HISTORY: Codes, 1942, § 1322-04; Laws, 1954, ch. 248, § 4.

Cross References —

Appeal from final decree, see §11-51-3.

Appeal from final decree, see §11-51-3.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 107.

§ 11-17-27. Confirmation of title or interest granted by political subdivision; applicability of Sections 11-17-19 through 11-17-27.

Sections 11-17-19 through 11-17-27 shall be applicable to all sales, conveyances and leases of real property, other than sixteenth section school lands or lands granted in lieu thereof, made by any county, municipality, supervisor’s district or other political subdivision of the State of Mississippi, acting either jointly or separately, to any person, firm or corporation, including, but not being limited to, sales, conveyances and leases made under the authority of Sections 57-1-1 through 57-1-51, any other statute of the State of Mississippi, whether same be general, special or local and private, and sales, conveyances and leases made under the general authority of counties, municipalities, and other political subdivisions, whether same were authorized by a specific statute or not.

HISTORY: Codes, 1942, § 1322-05; Laws, 1954, ch. 248, § 5.

Cross References —

Sales, conveyances, and leases executed by agricultural and industrial board, see §57-1-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-17-29. Any other title may be confirmed.

The owner in possession of any land, or the owner thereof who may be out of possession, if there be no adverse occupancy thereof, may file a bill in the chancery court to have his title confirmed and quieted. The law for notice, process, proceedings, and practice, as provided for confirming and quieting tax titles shall apply, no matter by what tenure the complainant may hold. Unknown and nonresident parties may be made defendants as they are made defendants to proceedings to confirm tax titles. If on the final hearing of any such suit, the court shall be satisfied that the complainant is the real owner of the land, it shall so adjudge, and its decree shall be conclusive evidence of title as determined from the date of the decree as against all parties defendant.

HISTORY: Codes, 1892, § 499; 1906, § 549; Hemingway’s 1917, § 306; 1930, § 403; 1942, § 1323.

Cross References —

The constitutional jurisdiction of the chancery court to decree title to land, see Miss. Const. Art. 6, § 160.

Proceedings to confirm tax titles, see §11-17-1.

Necessity to deraign title, see §11-17-35.

Jurisdiction to determine controverted title in action for partition of property, see §11-21-9.

Limitations of actions concerning land, see §§15-1-7,15-1-9.

Procedure to establish title if records are lost or destroyed, see §25-55-31.

Application of this section to action challenging location of public trust tideland boundaries, see §29-15-7.

Conveyances of land, generally, see §89-1-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Right to maintain suit to confirm title.

2. —Persons entitled.

3. —Title in complainant.

4. Proceedings in general.

5. —Pleading.

6. —Evidence.

7. —Decree.

8. Res judicata.

1. Right to maintain suit to confirm title.

Although generally a suit to confirm title may not be brought if there is a party defendant in possession of the land, a bill of complaint containing not only a prayer for confirmation of title but also a prayer for cancellation of adverse claims and the issuance of an injunction removing one in possession from the premises was not a simple bill to confirm title, and a motion to dismiss was properly overruled. Yellow Cab & Car Rental Co. v. Dependents of Lecamu, 207 So. 2d 604, 1968 Miss. LEXIS 1613 (Miss. 1968).

Where an action was brought to determine the rights of owners to the minerals, and the land involved was subject to railroad right of way, and owners of adjoining lands by right of adverse possession were in possession of subsurface minerals under the right of way, the action is one to remove clouds on title rather than suit to quiet and confirm title. Jones v. New Orleans & N. R. Co., 214 Miss. 804, 59 So. 2d 541, 1952 Miss. LEXIS 522 (Miss. 1952).

Bill to establish and quiet title to land in lieu of an ordinary action at law in ejectment can properly be maintained only when the land is not in possession of one claiming adversely to the complainant. White v. Turner, 197 Miss. 265, 19 So. 2d 825, 1944 Miss. LEXIS 295 (Miss. 1944); Hume v. Inglis, 154 Miss. 481, 122 So. 535, 1929 Miss. LEXIS 151 (Miss. 1929).

Under this section [Code 1942, § 1323] a complainant cannot maintain a suit to confirm her title to land, where the land is occupied by the defendant at the time, it being essential that the complainant show either that she is in possession of the land, or that she is the owner and the land is unoccupied. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

Where a complainant’s husband deserted her in 1920, while they resided on and occupied certain land as their home, and the wife continued to occupy the land as her home and to claim it until 1934, when she was forced out of possession by the defendant, she established a claim of title by adverse possession, which enabled her to maintain a suit to recover possession and remove the cloud upon her title. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

Where the entire record of a former suit brought by complainant against defendants and others to confirm her title in the land in question, which record was made a part of the instant suit, showed that the complainant claimed to be in possession and that there was no adverse possession as against allegations to the contrary, and her amended bill in the instant action for damages for the taking of timber from such land, and to obtain a writ of possession and other relief, showed not only a tax sale as foundation for her title but also a deed of trust from defendant, with foreclosure thereof and mesne conveyances to complainant as another source of title, the action was one within the class to confirm title under this section [Code 1942, § 1323]. Norton v. Graham, 185 Miss. 164, 187 So. 510, 1939 Miss. LEXIS 136 (Miss. 1939).

Complainant must show that he is in actual possession of the land or that there is no adverse possession. Gambrell Lumber Co. v. Saratoga Lumber Co., 87 Miss. 773, 40 So. 485, 1905 Miss. LEXIS 213 (Miss. 1905).

2. —Persons entitled.

A suit to confirm title to land may not be brought if there is a party defendant in possession, and the bill must show that either complainant is in the actual occupancy of the land, or if out of possession, that there is no actual adverse occupancy. Allen v. Thomas, 215 So. 2d 882, 1968 Miss. LEXIS 1386 (Miss. 1968).

One who has been in adverse possession for ten years by exchange of lands with another, claiming to be the owner from that time, may maintain a bill to have his title confirmed. Bynum v. Stinson, 81 Miss. 25, 32 So. 910, 1902 Miss. LEXIS 119 (Miss. 1902).

The owner of a leasehold interest in a sixteenth section may maintain a bill under this section [Code 1942, § 1323]. Osburn v. Board of Sup'Rs., 71 Miss. 19, 14 So. 457, 1983 Miss. LEXIS 3093 (Miss. 1983).

3. —Title in complainant.

In a suit to confirm title to land and cancel and remove as a cloud on the title to the land adverse claims thereto, and for possession and rent, the complainant was required to show a good title in herself. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

Complainant has burden of showing perfect title in himself to maintain bill to remove clouds and establish his title to land. Nicholson v. Myres, 170 Miss. 441, 154 So. 282, 1934 Miss. LEXIS 106 (Miss. 1934).

Complainant in bill to confirm title and remove clouds must show good title in himself. Camp v. Celtic Land & Improv. Co., 129 Miss. 417, 91 So. 897, 1922 Miss. LEXIS 30 (Miss. 1922).

4. Proceedings in general.

Circuit court properly transferred a case to a chancery court because the case involved a title dispute over which the chancery court had constitutional and statutory jurisdiction. Barham v. Miss. Power Co., 266 So.3d 994, 2019 Miss. LEXIS 129 (Miss. 2019).

Where certain issues of fact required determination, an interlocutory appeal was improvidently granted from an order overruling defendant’s pleas in bar filed in an action to confirm a tax title. Calmes v. Weill, 216 So. 2d 418, 1968 Miss. LEXIS 1225 (Miss. 1968).

Although the Supreme Court would not reverse a decree confirming title to a slip or canal in the complainant merely because the complainant did not deraign title to himself as required by § 1325, Code of 1942, or give a good and valid reason why he did not do so, since the proof showed that title came from a common source, reversal was required where complainant failed to deraign title from the common source to the necessary parties to the suit, and his bill did not allege that the complainant had joined in the suit all parties interested in the land so far as known to him and could be ascertained by diligent inquiry, and where one of the owners of one of the tracts purchased from the common source involved in the action had not been made a party thereto. Warren v. Clark, 230 Miss. 873, 94 So. 2d 323, 1957 Miss. LEXIS 435 (Miss. 1957).

Where defendants in a suit for determination of title to real estate filed cross-bills for confirmation of title in them, predicated on adverse possession and deeds other than those relied on by complainants, complainants had no right to dismiss without prejudice and at the same time secure dismissals of the cross-bills without the consent, express or implied, of the cross-complainants. Hudson v. Gulf Refining Co., 202 Miss. 331, 30 So. 2d 66, 1947 Miss. LEXIS 282 (Miss.), cert. denied, 332 U.S. 775, 68 S. Ct. 84, 92 L. Ed. 359, 1947 U.S. LEXIS 1900 (U.S. 1947).

A prior decree purporting to confirm defendant’s title to the land in litigation in an action to which the complainant was not made a party except as he may have been such under a general notice published as process “to all persons having or claiming any interest” is void as to complainant, where the latter on the date the prior suit was filed was in actual possession of the land and defendant had other knowledge of complainant’s adverse claim thereto, notwithstanding that complainant knew of the suit but paid no attention to it. Skrmetta v. Moore, 202 Miss. 585, 30 So. 2d 53, 1947 Miss. LEXIS 320 (Miss. 1947), but see Mitchell v. Rawls, 493 So. 2d 361, 1986 Miss. LEXIS 2587 (Miss. 1986).

One exercising such acts of occupancy or dominion over land as to give ample notice that his possession and acts are adverse to the claimant is not bound by general notice published as process “to all persons having or claiming any interest,” even though he knows of the suit. Skrmetta v. Moore, 202 Miss. 585, 30 So. 2d 53, 1947 Miss. LEXIS 320 (Miss. 1947), but see Mitchell v. Rawls, 493 So. 2d 361, 1986 Miss. LEXIS 2587 (Miss. 1986).

Complainant may dismiss as to one or more defendants. Wilson v. Foster Creek Lumber & Mfg. Co., 134 Miss. 880, 99 So. 437, 1924 Miss. LEXIS 309 (Miss. 1924).

Where court refused to amend bill inadvertently brought under Code 1906 § 549 instead of § 550, complainant should be allowed to dismiss without prejudice. Russell v. Denson, 98 Miss. 859, 54 So. 439, 1910 Miss. LEXIS 134 (Miss. 1910).

5. —Pleading.

Complaint in suit to confirm title to land under patent from state issued to plaintiff which did not allege that plaintiff was in possession of the land, or that there was no adverse occupancy, was demurrable, since such allegation is necessary in suit to confirm title other than tax title. Easterling v. Howie, 179 Miss. 680, 176 So. 585, 1937 Miss. LEXIS 65 (Miss. 1937).

Bill to quiet title alleging former suit for partition and sale was fraudulent and not by the then owners or their legal representatives, and that plaintiffs were not parties, states a good cause of action. Moore v. Luke, 110 Miss. 205, 70 So. 84, 1915 Miss. LEXIS 24 (Miss. 1915).

Cross-bill need not aver cross-complainants were in possession, or no adverse possession. Smith v. Jassen, 105 Miss. 227, 62 So. 172, 1913 Miss. LEXIS 194 (Miss. 1913).

6. —Evidence.

Chancery court properly rendered title to the property at issue in favor of a deceased father’s live-in companion because, while the son allegedly took out a bank loan to purchase property for the father, the son was precluded from confirming title inasmuch as he was not in possession and the property was not unoccupied, the son failed to deraign title, showing perfect title in himself, where the son and the companion claimed title under separate and distinct deeds, and theprior owner testified that it was his intent to convey the property to the father, the father who provided the check to the former owner as payment for the property, and the son never paid property taxes ormaintenance or upkeep of the property. Smith v. Pettigrew, 223 So.3d 173, 2017 Miss. App. LEXIS 396 (Miss. Ct. App. 2017).

The presumption that land has been granted to the possessor by the state arises where there is some unexplained anomaly in the chain of title; however, this principle should not be construed to mean that the presumption arises only in the face of such an anomaly. The open and continuous possession of property by the claimants and their predecessors in title from 1892 to the present, together with the usual acts incident to ownership, were sufficient to raise the presumption of a grant. Board of Trustees v. Rye, 521 So. 2d 900, 1988 Miss. LEXIS 61 (Miss. 1988), limited, Bd. of Educ. v. Warner, 853 So. 2d 1159, 2003 Miss. LEXIS 311 (Miss. 2003).

In suit to confirm title to land in which answer sets up ownership by defendants of part of land by adverse possession, proof by defendants as to land adversely possessed by them is admissible, and proper description thereof can be obtained by survey. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

In suit by heirs to confirm title to 46 acres of land, 15 acres of which defendants claimed through parol gift from complainants’ decedent to defendants’ deceased predecessor in title which merged with subsequent adverse possession against estate of complainants’ decedent, defendants should not be permitted to testify with reference to what was said in making gift of the land and pointing out boundaries as these statements went to question of establishing defendants’ claims against estate of decedent. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

Evidence held not to show continuous actual possession and occupation for statutory period. Dedeaux v. Bayou Delisle Lumber Co., 112 Miss. 325, 73 So. 53, 1916 Miss. LEXIS 114 (Miss. 1916).

7. —Decree.

Where in a suit to confirm a tax sale, § 1314, Code of 1942 and this section [Code 1942, § 1323], as to special process, had not been complied with, and although it was charged that one of the defendants was residing in the state of Georgia, the bill failed to charge that she was a nonresident of Mississippi, and neither the owner of title at the time of the tax sale, if living, nor his heirs, if he was dead, were made parties, the confirmation decree rendered therein was void. White v. Merchants & Planters Bank, 229 Miss. 35, 90 So. 2d 11, 1956 Miss. LEXIS 583 (Miss. 1956).

Decree in suit to confirm title to 46 acres of land that “complainants have no claim, right, title and interest to the land described in the bill of complaint filed herein” is reversible error when defendants claimed interest in only 15 acres and complainant’s title to 31 acres was not attacked. Chatman v. Carter, 209 Miss. 16, 45 So. 2d 841, 1950 Miss. LEXIS 358 (Miss. 1950).

Where a suit to confirm title was decided upon general demurrer which was sustained for failure of complainant to show title in himself, the decision was upon the merits as to complainant’s want of title. Williams v. Patterson, 203 Miss. 865, 34 So. 2d 366, 1948 Miss. LEXIS 331 (Miss. 1948).

False allegation that there is no adverse possession is a fraud on the court; decree confirming title is void as to defendant in adverse possession where complainant does not proceed under Code 1906, § 550 to have such claim cancelled. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, 1917 Miss. LEXIS 92 (Miss. 1917).

8. Res judicata.

On a bill of complaint by an innocent purchaser for value without notice to confirm, and to quiet title to a tract of land, a prior quiet title action by the purchaser’s predecessor concerning the same tract against the same defendants before the same chancellor who quieted title in the predecessor, was res judicata as to the title to the property. Fairley v. Tucker, 253 So. 2d 852, 1971 Miss. LEXIS 1240 (Miss. 1971).

Where a plaintiff in ejectment suit made the same allegations as to right of possession as those made in prior suit for confirmation of title, which was adjudicated against him for failure to show title in himself, decision in confirmation suit was res judicata in ejectment suit. Williams v. Patterson, 203 Miss. 865, 34 So. 2d 366, 1948 Miss. LEXIS 331 (Miss. 1948).

In an action to confirm title and remove clouds, as against defendants’ claim of adverse possession and that the period of adverse possession was not interrupted by a decree in a former suit to which the defendants were parties for confirmation of complainant’s tax title on the ground that the issue of adverse possession was not involved therein, allegations in the former suit, the record of which was made part of the instant suit, that complainant was in possession and that there was no adverse possession, with defendants’ allegations to the contrary, put in issue the defendants’ claim of adverse possession and such issue was concluded by the decree in the former suit, foreclosing further inquiry, since the matters existing at the time of the former suit under this section [Code 1942, § 1323] concluded the title as of the date of the decree and not as of the date of the tax sale from which complainant derived title. Norton v. Graham, 185 Miss. 164, 187 So. 510, 1939 Miss. LEXIS 136 (Miss. 1939).

RESEARCH REFERENCES

ALR.

Construction of “marketable title,” “ancient claims extinguishment,” and like statutes, terminating or limiting enforcement of claims respecting real property, based on old records, instruments, or events. 71 A.L.R.2d 846.

Am. Jur.

27A Am. Jur. 2d, Equity § 40.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

20 Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Forms 1-115 (Proceedings to quiet title).

CJS.

30A C.J.S., Equity §§ 86-93.

§ 11-17-31. Removing clouds upon titles.

When a person not the rightful owner of any real estate, shall have any conveyance or other evidence of title thereto, or shall assert any claim, or pretend to have any right of title thereto, which may cast doubt, or suspicion on the title of the real owner, such real owner may file a bill in the chancery court to have such conveyance or other evidence or claim of title cancelled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not, or be threatened to be disturbed in his possession or not, and whether the defendant be a resident of this state or not. Any person having the equitable title to land may, in like cases, file a bill to divest the legal title out of the person in whom the same may be vested, and to vest the same in the equitable owner. Any person holding or claiming under a tax title lands heretofore or hereafter sold for taxes may proceed hereunder in like manner and may include, as a defendant, any political subdivision of the state, having or asserting any evidence or claim of title adverse to such tax title.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 16 (1); 1857, ch. 62, art. 8; 1871, § 975; 1880, § 1833; 1892, § 500; 1906, § 550; Hemingway’s 1917, § 307; 1930, § 404; 1942, § 1324; Laws, 1948, ch. 226.

Cross References —

Constitutional jurisdiction to decree title to land, see Miss. Const. Art. 6, § 160.

Necessity to deraign title, see §11-17-35.

Limitation of actions concerning title to land, see §§15-1-7,15-1-9.

Procedural rules applicable to civil actions, see Mississippi Rules of Civil Procedure, Rule 1 et seq.

JUDICIAL DECISIONS

1. Jurisdiction.

2. —Removal to federal court.

3. Right and propriety of action.

4. —Title in complainant.

5. —Actions by or against particular persons.

6. Parties.

7. Pleading.

8. Evidence.

9. Burden of proof.

10. Relief granted.

11. Judgment or decree.

12. Injunction in aid of remedy.

13. Res adjudicata.

1. Jurisdiction.

Venue was not jurisdictional a brother’s action to set aside a deed to the family farm from their mother to a revocable trust, and the sister waived any objection to the suit being heard in the county because the venue issue was never pursued to a ruling in the chancery court. Hodnett v. Hodnett, 269 So.3d 317, 2018 Miss. App. LEXIS 189 (Miss. Ct. App.), cert. denied, 258 So.3d 287, 2018 Miss. LEXIS 527 (Miss. 2018).

Chancery court is without jurisdiction of bill by owners of land seeking cancellation of claim of state to lands by reason of pretended tax sales as cloud upon complainants’ title after land commissioner, with written approval of attorney general, acting under § 4073, Code 1942, providing for cancellation of claim of state to lands under tax sales when sales are void, has stricken lands from lists of lands sold to state for delinquent taxes because sales were void, since adjudication sought is, in effect, merely ratification of legal action of a state official, lawfully empowered to act, and statute does not provide for ratification by court. State v. Southern Pine Co., 205 Miss. 80, 38 So. 2d 442, 1949 Miss. LEXIS 414 (Miss. 1949).

Where in a suit to enjoin the defendants from foreclosing a deed of trust and to cancel such deed of trust as a cloud upon complainants’ title, title to that part of the land covered by the deed of trust situated in the county in which the suit was brought had, at the time suit was brought, matured in the state under tax sales, and the defendants moved to dismiss the suit because the court had no territorial jurisdiction in that the rest of the land was situated in another county, but the suit was dismissed on another ground urged in such motion, defendants’ failure on complainants’ appeal from dismissal to urge the point that suit could not be maintained in county other than that in which land was situated, constituted waiver of the point. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

A suit to cancel a claim against land as a cloud upon the title, where the property is in possession of the complainant and the court is not asked to make any disposition thereof, should not be held to be a proceeding purely in rem in the sense that a court would be wholly without jurisdiction in a county other than where the land is situated. Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 1940 Miss. LEXIS 191 (Miss. 1940).

The statute enlarges the jurisdiction for the purposes of quia timet bills, and must be construed in the light of the doctrines and principles pertaining thereto. Carlisle v. Tindall, 49 Miss. 229, 1873 Miss. LEXIS 109 (Miss. 1873).

2. —Removal to federal court.

Federal district courts, under Judicial Code § 57, have jurisdiction of suits to remove clouds on title in case of nonresident defendants. Louisville & N. R. Co. v. Western Union Tel. Co., 234 U.S. 369, 34 S. Ct. 810, 58 L. Ed. 1356, 1914 U.S. LEXIS 1156 (U.S. 1914).

A suit to remove clouds from titles to land is not within the exclusive jurisdiction of the state courts and may be removed, if the citizenship of the parties justifies it, into the federal court. Day v. Oatis, 85 Miss. 128, 37 So. 559, 1904 Miss. LEXIS 123 (Miss. 1904).

3. Right and propriety of action.

Chancellor properly denied a motion to dismiss filed by a mother and her daughter because the brother’s action to set aside the sister’s deed, remove the cloud on his title, and to quiet title to the disputed property was governed by the 10-year statutes of limitations where the daughter knew about the brother’s deed, the brother was a remainderman who did not yet have the present right to possess the property, and the brother had a present cause of action. Lott v. Saulters, 133 So.3d 794, 2014 Miss. LEXIS 53 (Miss. 2014).

A property owner is entitled to have a void tax deed set aside as a cloud upon the owner’s title. Parsons v. Marshall, 243 Miss. 719, 139 So. 2d 833, 1962 Miss. LEXIS 399 (Miss. 1962).

Where an action was brought to determine the rights of owners to the minerals, and the land involved was subject to railroad right of way, and owners of adjoining lands by right of adverse possession were in possession of subsurface minerals under the right of way, the action is one to remove the cloud on title rather than suit to quiet and confirm title. Jones v. New Orleans & N. R. Co., 214 Miss. 804, 59 So. 2d 541, 1952 Miss. LEXIS 522 (Miss. 1952).

In suit to remove cloud upon title, mere improvident contract supplies no basis for relief. Hunt v. Davis, 208 Miss. 710, 45 So. 2d 350, 1950 Miss. LEXIS 290 (Miss. 1950).

In action to remove cloud from title based on unilateral mistake of grantor in description of mineral rights conveyed, mistake to constitute equitable relief must not be merely result of inattention, personal negligence, or misconduct on part of party applying for relief. Hunt v. Davis, 208 Miss. 710, 45 So. 2d 350, 1950 Miss. LEXIS 290 (Miss. 1950).

Unilateral mistake on part of grantor, either as to number of acres under which he owned mineral interest or as to fractional interest in minerals owned, will not support cross-bill to cancel title of grantee to one-fourth of minerals when grantor conveyed one-half of minerals under the land, which was all that grantor owned. Hunt v. Davis, 208 Miss. 710, 45 So. 2d 350, 1950 Miss. LEXIS 290 (Miss. 1950).

An asserted claim of title by adverse possession alone may be a cloud on title within the purview of this section [Code 1942, § 1324] where the same is insufficient in character and duration to satisfy the applicable statute of limitations. Church of Living God, C. W. F. F. v. Curry, 203 Miss. 279, 34 So. 2d 494, 1948 Miss. LEXIS 264 (Miss. 1948).

Taking possession of real property and demolishing and removing the improvements thereon is such an assertion of some claim of right as to have such possession and use cancelled as a cloud upon title. Church of Living God, C. W. F. F. v. Curry, 203 Miss. 279, 34 So. 2d 494, 1948 Miss. LEXIS 264 (Miss. 1948).

Even though an instrument void on its face may be impotent to do practical harm to the title, an action may be brought to cancel it as a cloud on the title. Silvey v. Upton, 202 Miss. 485, 32 So. 2d 267, 1947 Miss. LEXIS 303 (Miss. 1947).

An action to remove cloud on title was properly brought against a municipality by the holder of a tax deed issued by an administration under a procedure different from that adopted by a succeeding administration which had sometimes required the payment of an additional price from the holders of similar deeds. Evans v. Jackson, 201 Miss. 14, 28 So. 2d 249, 1946 Miss. LEXIS 353 (Miss. 1946).

Even though the state acquires no title under an invalid tax sale, such constitutes a cloud upon the title of the rightful owner which he may have cancelled and removed. State v. Butler, 197 Miss. 218, 21 So. 2d 650, 1945 Miss. LEXIS 287 (Miss. 1945).

Possession of the land by complainants, or nonoccupancy of the land, is not a condition precedent to the maintenance of an action to remove a cloud upon the title to the land. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

Where a complainant’s husband deserted her in 1920, while they resided on and occupied certain land as their home, and the wife continued to occupy the land as her home and to claim it until 1934, when she was forced out of possession by the defendant, she established a claim of title by adverse possession, which enabled her to maintain a suit to recover possession and remove the cloud upon her title. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

As respects constitutionality of statute providing that action attacking validity of tax sale to state must be brought within two years after land is sold or forfeited to state, fact that statute ran concurrently with portion of period of redemption was immaterial since its effect was not to shorten redemption period and taxpayer was authorized to institute, prior to expiration of period of limitation, a suit to cancel claim of state’s patentee as a cloud on his title, whether taxpayer was in possession or not, or whether he was threatened to be disturbed in his possession. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

This statute must be regarded as entitling the rightful owner of real property in the state to maintain a suit to dispel a cloud cast upon his title by an invalid deed or any other instrument, even though it be one which, when tested by applicable legal principles, is void upon its face. Louisville & N. R. Co. v. Western Union Tel. Co., 234 U.S. 369, 34 S. Ct. 810, 58 L. Ed. 1356, 1914 U.S. LEXIS 1156 (U.S. 1914).

Where court refused to amend bill inadvertently brought under Code 1906 § 549 instead of § 550, complainant should be allowed to dismiss suit without prejudice. Russell v. Denson, 98 Miss. 859, 54 So. 439, 1910 Miss. LEXIS 134 (Miss. 1910).

Suit for removal of cloud will lie whether the cloud be cast by written instrument or mere assertion of a hostile claim; in either case bill must show complainant’s good title and facts showing invalidity of defendant’s title if they be known. Gambrell Lumber Co. v. Saratoga Lumber Co., 87 Miss. 773, 40 So. 485, 1905 Miss. LEXIS 213 (Miss. 1905).

Under the facts stated, complainant was held entitled to maintain a bill to cancel or, in the alternative, to have a lien decreed in his favor. Gentry v. Gamblin, 79 Miss. 437, 28 So. 809, 1901 Miss. LEXIS 4 (Miss. 1901).

Clouds may be removed from the reversionary interest in land by the real owner thereof, before the expiration of the particular estate. Fox v. Coon, 64 Miss. 465, 1 So. 629, 1886 Miss. LEXIS 91 (Miss. 1886).

The real owner can file a bill to cancel a paper-title, or a bill for protection against a pretense of title. Cook v. Friley, 61 Miss. 1, 1883 Miss. LEXIS 58 (Miss. 1883).

A bill in chancery can be maintained by the real owner out of possession against a person in possession, to cancel a void tax-deed and a title-bond from one who never had title. Wofford v. Bailey, 57 Miss. 239, 1879 Miss. LEXIS 55 (Miss. 1879).

If the person owning the legal title be estopped to assert it as against complainant, who has a perfect equitable title, the latter may cancel the legal title as a cloud. Shivers v. Simmons, 54 Miss. 520, 1877 Miss. LEXIS 41 (Miss. 1877).

4. —Title in complainant.

A deed which conveyed to a woman her two sons’ interest in a piece of land and provided that the deed was made with the full knowledge and understanding of the parties concerned and that, on the mother’s death, title to the property would revert to one of the two sons was insufficient to transfer the interest of one brother to the other and upon the mother’s death each son was entitled to that portion of the property which he had conveyed to the mother as a life tenant. Avera v. Avera, 341 So. 2d 654, 1977 Miss. LEXIS 2273 (Miss. 1977).

A bill to quiet title should not have been dismissed as to that part of the land to which the complainant had record title, his right to which was contested by a cross-bill setting forth alleged, but not proved, title by adverse possession. Colotta v. Middleton, 201 Miss. 637, 28 So. 2d 847, 1947 Miss. LEXIS 432 (Miss. 1947).

In a suit to confirm title to land and cancel and remove as a cloud on the title to the land adverse claims thereto, and for possession and rent, the complainant was required to show a good title in herself. Broome v. Jackson, 193 Miss. 66, 7 So. 2d 829, 8 So. 2d 245, 1942 Miss. LEXIS 89 (Miss. 1942).

Where the entire record of a former suit brought by complainant against defendants and others to confirm her title in the land in question, which record was made a part of the instant suit, showed that complainant claimed to be in possession and that there was no adverse possession as against allegations therein to the contrary, and her amended bill in the instant suit for damages for the taking of timber from such land, to obtain a writ of possession and other relief, showed not only a tax sale as foundation for her title but also a deed of trust from defendant, with foreclosure thereof and mesne conveyances to complainant as another source of title, the present action was one within the purview of this section [Code 1942, § 1324] in view of allegations of the bill as to title set out in the original bill, as constituting a cloud upon the complainant’s title. Norton v. Graham, 185 Miss. 164, 187 So. 510, 1939 Miss. LEXIS 136 (Miss. 1939).

Bill to cancel contract for sale of timber land is within Code 1906 §§ 550, 551, and complainant must deraign title. Eastman v. Wyatt Lumber Co., 102 Miss. 313, 59 So. 93, 1912 Miss. LEXIS 60 (Miss. 1912).

Under this section [Code 1942, § 1324] complainants must show a perfect legal or equitable title independently of defects in defendant’s 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); Goff v. Avent, 122 Miss. 86, 84 So. 134, 1920 Miss. LEXIS 421 (Miss. 1920).

The doctrine of common source of title applies. People's Bank of New Orleans v. West, 67 Miss. 729, 7 So. 513, 1890 Miss. LEXIS 120 (Miss. 1890).

Complainant must show as perfect a title, legal or equitable, as would enable him, the title being a legal one, to recover in an action of ejectment. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208, 1889 Miss. LEXIS 36 (Miss. 1889); Wilkinson v. Hiller, 71 Miss. 678, 14 So. 442, 1893 Miss. LEXIS 85 (Miss. 1893).

The complainant must show himself to be the owner in law or in equity of the subject matter in dispute. Hart v. Bloomfield, 66 Miss. 100, 5 So. 620, 1888 Miss. LEXIS 69 (Miss. 1888); People's Bank of New Orleans v. West, 67 Miss. 729, 7 So. 513, 1890 Miss. LEXIS 120 (Miss. 1890).

Complainant must have a perfect legal or a perfect equitable title; and must show the invalidity of his adversary’s claim. Toulmin v. Heidelberg, 32 Miss. 268, 1856 Miss. LEXIS 197 (Miss. 1856); Jayne v. Boisgerard, 39 Miss. 796, 1861 Miss. LEXIS 16 (Miss. 1861); Huntington v. Allen, 44 Miss. 654, 1871 Miss. LEXIS 24 (Miss. 1871); Handy v. Noonan, 51 Miss. 166, 1875 Miss. LEXIS 29 (Miss. 1875); Griffin v. Harrison, 52 Miss. 824, 1876 Miss. LEXIS 301 (Miss. 1876).

The complainant must show the entire fairness of his own title. Boyd v. Thornton, 21 Miss. 338, 1850 Miss. LEXIS 25 (Miss. 1850).

5. —Actions by or against particular persons.

Action brought under Mississippi law to remove cloud upon title to real property is action to quiet title to property on which United States has lien, for purposes of statute waiving sovereign immunity for such claims. Norman v. United States, 962 F. Supp. 936, 1996 U.S. Dist. LEXIS 20957 (S.D. Miss. 1996).

Action in which Mississippi resident sought to reform deed of trust securing loan made by Farmers Home Administration (FHA) to remove his homestead and residence from deed was action to remove cloud on title under Mississippi statute, and thus came within waiver by United States of sovereign immunity under statute governing actions affecting real property on which United States has lien. Norman v. United States, 962 F. Supp. 936, 1996 U.S. Dist. LEXIS 20957 (S.D. Miss. 1996).

Warranty deed conveying fee simple title, which contains clause making conveyance subject to reservation of oil, gas and other minerals by prior grantors will not be reformed to reflect intent of present grantor to reserve mineral rights. Miller v. Lowery, 468 So. 2d 865, 1985 Miss. LEXIS 2054 (Miss. 1985).

An administratrix cannot bring suit to recover in her own name lands of the decedent in the absence of her showing a basis for her assumption of this prerogative of the heirs. Clinton v. Robbins, 32 So. 2d 145 (Miss. 1947).

The purchaser at a foreclosure sale under a trust deed is entitled to a decree quieting title as against the mortgagor’s wife who obtained a forfeited tax land patent from the state pursuant to its purchase of the property after the foreclosure sale at tax sale for nonpayment of taxes assessed to the mortgagor. Vincent v. J. W. McClintock, Inc., 200 Miss. 445, 27 So. 2d 681, 1946 Miss. LEXIS 308 (Miss. 1946).

Under this section [Code 1942, § 1324] the owner of land out of possession can resort to an equity court to remove clouds and confirm title. Dockery v. Zerkowsky, 186 Miss. 31, 189 So. 797, 1939 Miss. LEXIS 221 (Miss. 1939).

Members of state mineral lease commission which held void deeds to complainants’ realty could be made defendants under statute authorizing cancellation suit by rightful owner against person holding invalid deeds, although commission had not taken actual possession of or trespassed upon realty. State Mineral Lease Com. v. Lawrence, 171 Miss. 442, 157 So. 897, 1934 Miss. LEXIS 265 (Miss. 1934).

Rule that equity will not proceed until all parties whose interests will be substantially affected by decree are before court, and fact that state was real party in interest, did not preclude suit against members of state mineral lease commission to cancel void deeds to complainant’s realty held by commission. State Mineral Lease Com. v. Lawrence, 171 Miss. 442, 157 So. 897, 1934 Miss. LEXIS 265 (Miss. 1934).

Trustees under void trust are not entitled to maintain a suit to remove cloud from their title on theory that conveyance to them was absolute on failure of trust. Board of Trustees v. Odom, 100 Miss. 64, 56 So. 314, 1911 Miss. LEXIS 15 (Miss. 1911).

One granting right to plant and take oysters from a bay in front of certain property cannot maintain a bill to quiet his title to such rights. Catchot v. Zeigler, 92 Miss. 191, 45 So. 707, 1907 Miss. LEXIS 25 (Miss. 1907).

Purchasers from a county cannot defend a suit by the county to cancel their deed on the ground that the county at the time of its purchase had no power to acquire the property. Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 1896 Miss. LEXIS 167 (Miss. 1896).

A purchaser in possession, under a contract to convey to him, who has not paid the purchase money, cannot maintain a bill to cancel the claim of the vendor or representatives upon the ground that the statute of limitation has barred recovery either of the land or its price, unless he offers to pay the purchase money and interest. Nolan v. Snodgrass, 70 Miss. 794, 12 So. 583, 1893 Miss. LEXIS 9 (Miss. 1893).

6. Parties.

Although the Supreme Court would not reverse a decree confirming title to a slip or canal in the complainant merely because the complainant did not deraign title to himself as required by § 1325, Code of 1942, or give a good and valid reason why he did not do so, since the proof showed that title came from a common source, reversal was required where complainant failed to deraign title from the common source to the necessary parties to the suit, and his bill did not allege that the complainant had joined in the suit all parties interested in the land so far as known to him and could be ascertained by diligent inquiry, and where one of the owners of one of the tracts purchased from the common source involved in the action had not been made a party thereto. Warren v. Clark, 230 Miss. 873, 94 So. 2d 323, 1957 Miss. LEXIS 435 (Miss. 1957).

As general rule all persons who are materially interested in event or subject matter, without whom no effective judgment or decree can be rendered, should be made parties in suit to quiet title. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

One who enters into conditional contract with complainants in suit to quiet title, after litigation is started, to lease property if and when litigation is terminated in accordance with complainants’ views, is not necessary party to suit as he is interested alone in outcome of litigation not inherently in subject matter of suit. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Either plaintiff or interveners, claiming title to plaintiff’s undivided interest in oil land by reason of quitclaim deed from plaintiff subject to plaintiff’s right to receive payment for oil produced from the land, were proper parties to maintain action to confirm title to such land and to set aside colessor’s agreement executed by plaintiff. White v. Union Producing Co., 140 F.2d 176, 1944 U.S. App. LEXIS 3896 (5th Cir. 1944).

All parties interested may be made defendants so as to afford complete relief. Goff v. Avent, 129 Miss. 782, 93 So. 193, 1922 Miss. LEXIS 89 (Miss. 1922).

A mortgagor who, by limitation, is barred of all equity of redemption and who has conveyed all interest in the land, is neither a necessary nor proper party to a bill to remove clouds. Tuteur v. Brown, 74 Miss. 774, 21 So. 748, 1897 Miss. LEXIS 53 (Miss. 1897).

7. Pleading.

Chancellor does not abuse his discretion by allowing, after answer is filed, amendment to bill changing date of foreclosure sale from which date defendants claimed adversely, where effect of amendment was merely to increase burden upon defendants in establishing duration of period of their claimed adverse possession. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

Demurrer on ground that there is no equity on face of cross-bill should be overruled when cross-bill, filed in suit founded on former court decree, reviews history of former court proceeding setting out facts showing decree was void and did not affect title to land, partition of which is sought in original bill, and cross-bill prays that claim of cross-defendant be cancelled as cloud upon title of cross-complainant. Natis v. Jackson, 205 Miss. 490, 38 So. 2d 925, 1949 Miss. LEXIS 446 (Miss. 1949).

One alleging that he and the defendant derived their title from a common source must show by proper allegation that his title from that source is the better. Woodard v. Moss, 202 Miss. 33, 30 So. 2d 420, 1947 Miss. LEXIS 237 (Miss. 1947).

A bill alleging that title was derived from named persons who were heirs at law of a named decedent was insufficient for failing to allege that the persons named were sole heirs at law. Woodard v. Moss, 202 Miss. 33, 30 So. 2d 420, 1947 Miss. LEXIS 237 (Miss. 1947).

Bill to quiet title, not alleging deraignment of title or claiming adverse possession, held insufficient to support decree pro confesso for complainant and final decree thereon. Smith v. Deas, 158 Miss. 111, 130 So. 105, 1930 Miss. LEXIS 25 (Miss. 1930).

An allegation that complainant’s ancestor was at the time of his death seized and possessed in fee simple is merely a legal conclusion and a statement of constructive and not of actual possession. 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).

It is not necessary to set out particularly defendant’s title, which it is sought to cancel. Wright v. Lauderdale County, 71 Miss. 800, 15 So. 116, 1894 Miss. LEXIS 44 (Miss. 1894).

A bill alleging that plaintiff’s father, as owner of land, sold it and gave plaintiff the purchase-money notes, that she sued on them and recovered judgment, that the land was sold under execution to her, and that the debtor surrendered possession to her, sets up such an equitable title in plaintiff as entitles her to sue to remove a cloud on the title. Williamson v. Louisville, N. O. & T. R. Co., 6 So. 205 (Miss. 1889).

The allegation that complainant is the true and equitable owner by purchase from one whose title is not set out is insufficient. Harrill v. Robinson, 61 Miss. 153, 1883 Miss. LEXIS 91 (Miss. 1883).

If the object be to cancel a particular evidence of title possessed by defendant, it should be as fully described as known to the pleader. Cook v. Friley, 61 Miss. 1, 1883 Miss. LEXIS 58 (Miss. 1883).

8. Evidence.

Church, claiming under prior recorded deed which properly described the land therein by metes and bounds although reference to total acreage was erroneous, was entitled to have its title quieted thereto as against defendants claiming under a subsequent conveyance of the remainder of the quarter section from the same grantor, since defendants acquired no semblance or color of title to the church’s realty under the latter conveyance, and their plea of adverse possession was not sustained by proof that they claimed some of the land and that each of them pastured a cow thereon for as long as ten consecutive years. Miles v. Collinsville Methodist Church, 46 So. 2d 110 (Miss. 1950).

Deed of purchaser at tax sale for unpaid taxes was not sustained in suit to quiet title where owner introduced into evidence duplicate receipt issued pursuant to Hemingway’s Code, 1927, § 8241, showing owner paid taxes, and where owner orally testified that he paid the taxes and such testimony was uncontradicted. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

In suit to quiet title, when phrase in restrictive covenant is shown by expert witnesses to be ambiguous, situation justifies resort to further aid of construction, that of negotiations and conversations leading up to adoption of restrictive covenant. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

In suit to quiet title to land in which decree involves meaning of restriction in deed against operation on property of textile industry, decree for neither side can rest on testimony of experts in textile trade as to meaning of term “textile industry” when their own disagreement and divergence of understanding of its significance make manifest that phrase is ambiguous and not solvable by uniform trade understanding. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Where grantors of deed remained in possession on the theory that it was intended to be a mortgage, they had the right to show by parol that it was so intended. McGehee v. Weeks, 112 Miss. 483, 73 So. 287, 1916 Miss. LEXIS 132 (Miss. 1916).

Where the bill calls for a discovery of defendant’s title, an unsworn answer setting up a tax title is not evidence thereof. What effect a sworn answer would have, not decided. National Bank of Republic v. Louisville, N. O. & T. R. Co., 72 Miss. 447, 17 So. 7, 1894 Miss. LEXIS 125 (Miss. 1894).

9. Burden of proof.

Former wife is entitled to equitable lien against realty title to which is in former husband where wife satisfies burden of proof with respect to misrepresentation by showing that husband executed deed to wife and caused photocopy of deed to be imprinted with notary seal and taken to home, that wife came into possession of photocopy of deed, that wife helped pay for land, and that wife will suffer detriment if her claim to title is defeated. Chapman v. Chapman, 473 So. 2d 467, 1985 Miss. LEXIS 2175 (Miss. 1985).

Oil company seeking to remove as cloud on leasehold interest lease held by another lessee covering same property has burden of proving that oil well on property in question continued as producing well or that reworking operations were begun within time prescribed by lease, if production ceased, and that production was again achieved and continued keeping leases in force and effect. Culbertson v. Dixie Oil Co., 467 So. 2d 952, 1985 Miss. LEXIS 2041 (Miss. 1985).

Purchaser at tax sale who seeks to have tax title quieted and confirmed has burden of proving valid assessment of land for taxes and that taxes for which land was offered for sale had not been paid. Walker v. Polk, 208 Miss. 389, 44 So. 2d 477, 1950 Miss. LEXIS 256 (Miss. 1950).

In an action by the record owner of land to remove defendant’s claim thereto as a cloud upon its title, wherein defendant by cross-bill asserted title to the land by adverse possession, the burden was upon the defendant to show that he was vested with title by adverse possession to the disputed area, and to do so it was necessary for him to show that he alone, or he and his predecessors in title together, had had actual, open, hostile, peaceable, exclusive, continuous possession of the land for ten years, under claim of ownership thereto. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

Complainant in bill to remove clouds and establish title to land has burden of showing perfect title in himself. Nicholson v. Myres, 170 Miss. 441, 154 So. 282, 1934 Miss. LEXIS 106 (Miss. 1934).

10. Relief granted.

In a case where a husband was seeking a partition under Miss. Code Ann. §11-21-11, the issue of whether he was a proper titleholder to a residence was waived because he did not appeal a portion of a decision requiring the removal of his name from a warranty deed; at any rate, the wife was able to prove that there was a unilateral mistake made due to the husband’s fraudulent misrepresentations about their remarriage. The husband only lived in the new house for a few weeks, and he did not contribute to its upkeep. Thweatt v. Thweatt, 4 So.3d 1085, 2009 Miss. App. LEXIS 102 (Miss. Ct. App. 2009).

Former wife is entitled to equitable lien against realty title to which is in former husband where wife satisfies burden of proof with respect to misrepresentation by showing that husband executed deed to wife and caused photocopy of deed to be imprinted with notary seal and taken to home, that wife came into possession of photocopy of deed, that wife helped pay for land, and that wife will suffer detriment if her claim to title is defeated. Chapman v. Chapman, 473 So. 2d 467, 1985 Miss. LEXIS 2175 (Miss. 1985).

In suit to cancel tax title, affirmative relief declaring tax title to be valid could not be granted in absence of cross-bill. Webb v. Anderson, 206 Miss. 398, 40 So. 2d 189, 1949 Miss. LEXIS 270 (Miss. 1949).

Entry of possession by defendants under tax patent from state, with actual knowledge of former owner and continuance in possession for more than two years, with payment of taxes, established adverse possession against former owner, barring suit to cancel the tax sale to the state and patent from the state as clouds upon plaintiffs’ title. Webb v. Anderson, 206 Miss. 398, 40 So. 2d 189, 1949 Miss. LEXIS 270 (Miss. 1949).

Purchase of property at tax sale, which property was assessed according to a plat prepared by the owners showing abutting alleys and paths needed for access thereto but otherwise of no appreciable value, carried with it full and unrestricted right of ingress and egress over such approaches. Evans v. Jackson, 201 Miss. 14, 28 So. 2d 249, 1946 Miss. LEXIS 353 (Miss. 1946).

Husband who has instituted suit against former wife to cancel her claim to property as a cloud upon his title is not entitled to relief where he has not offered to do full equity toward the wife. Peeler v. Peeler, 199 Miss. 492, 24 So. 2d 338, 1946 Miss. LEXIS 219 (Miss.), cert. denied, 329 U.S. 720, 67 S. Ct. 54, 91 L. Ed. 624, 1946 U.S. LEXIS 1976 (U.S. 1946).

Deed in consideration for support of grantor not cancelled for failure to support, where it contains no provision for forfeiture and reserves no lien to secure performance. Wynn v. Kendall, 122 Miss. 809, 85 So. 85, 1920 Miss. LEXIS 477 (Miss. 1920).

Deed in fee simple to defendant, purchasing under foreclosure of trust deed on life estate, should be cancelled after death of life tenant as a cloud on title of remaindermen. Leflore v. Flowers, 117 Miss. 682, 78 So. 513 (Miss. 1918).

11. Judgment or decree.

In suit to quiet title, decree of chancellor that covenant in deed prohibiting use of property for any type of textile industry did not prohibit use of described property as place to manufacture garments or other similar articles of wearing apparel, given on conflicting evidence equally balanced, or nearly so, will be affirmed on appeal to Supreme Court. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Any judgment adjudging plaintiff in an action under this section [Code 1942, § 1324] to be the owner of the land as against one claiming by adverse possession thereto is not binding as against the claim of a third person not made a party to the suit who might have acquired a good and perfect title against plaintiff by ten years adverse possession under § 711, Code 1942. Southern Naval Stores Co. v. Price, 202 Miss. 116, 30 So. 2d 505, 1947 Miss. LEXIS 248 (Miss. 1947).

In a suit to hold invalid and set aside a tax sale to the state and a patent from the state to a municipality, the chancellor was correct in decreeing that the patent to the municipality vested in it all right, title and interest of the owner of record and his predecessors in title, where the evidence supported chancellor’s finding that the land was not being used exclusively for burial purposes when assessed and sold for taxes and that it was subject to assessment and sale therefor. Evans v. Jackson, 201 Miss. 14, 28 So. 2d 249, 1946 Miss. LEXIS 353 (Miss. 1946).

False allegation that there is no adverse possession is a fraud on the court and decree confirming title is void as to a defendant in adverse possession where complainant does not proceed under this section (Code 1906, § 550) to have such adverse claim cancelled. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, 1917 Miss. LEXIS 92 (Miss. 1917).

Suit to cancel decree confirming title for fraud is not a collateral attack. Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596, 1917 Miss. LEXIS 92 (Miss. 1917).

12. Injunction in aid of remedy.

Equity will enjoin a sale of real estate under legal process, where the only effect of the sale would be to cast a cloud upon complainant’s title. Irwin v. Lewis, 50 Miss. 363, 1874 Miss. LEXIS 67 (Miss. 1874).

13. Res adjudicata.

Complainant’s title having been put in issue, a decree dismissing his bill, though for defect of proof, bars a subsequent suit. Chiles v. Champenois, 69 Miss. 603, 13 So. 840, 1891 Miss. LEXIS 167 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Decree or judgment subject to direct attack in chain of title as rendering title unmerchantable. 9 A.L.R.2d 710.

Necessary or proper parties to suit or proceeding to establish private boundary line. 73 A.L.R.3d 948.

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 1 et seq.

20A Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 25.1 (Complaint, petition, or declaration-To remove cloud on title-To enjoin construction of edifice until boundary dispute determined).

20 Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Forms 1-115 (Proceedings to quiet title and to determine adverse claims to property).

CJS.

74 C.J.S., Quieting Title §§ 1-97.

§ 11-17-33. Receiver appointed for nonresident or unknown owners of mineral interests.

  1. To encourage the exploration and development of the state’s mineral resources, upon application, accompanied by sworn affidavit, of one or more persons, firms or corporations claiming or owning any mineral interest in a tract of land and upon which mineral production is desired, the chancery court of the county in which the land, or any part thereof, is located shall have the authority to appoint the chancery clerk as receiver of any mineral interest claimed or owned by any person, or persons, whose whereabouts or identity is unknown, if the court is satisfied after hearing and proof that the said person, or persons, could not be found after diligent search and inquiry and that petitioners will suffer loss, damage or injury unless such receiver is appointed.
  2. Such receiver shall have power and authority, under court order, to execute and deliver to a lessee, determined by the court, a mineral lease on any such outstanding mineral interest, upon such terms and conditions as may be prescribed by the court; provided, however, that the court affirmatively find that the lease taken as a whole shall be at least as favorable to the absent person as other leases in the same tract of land and shall be in the best interest of all parties. It shall be conclusively presumed in every court in this state that the terms and conditions of said lease are reasonable, fair and represent the fair market value of the interests leased. The moneys, if any, paid to such receiver for execution, delay rentals, royalties or any other proceeds of such lease shall be paid immediately upon accrual to the receiver and shall be impounded by said receiver for the use and benefit of such person. The receiver shall hold, preserve and invest any such money so received in the same manner as other moneys held by the chancery clerk and on order of the court shall pay any money so held, with any interest accrued less costs of the receivership, to any person holding a valid claim thereto when said claim is asserted within ten (10) years of the date of the decree establishing the receivership. The official bond of the chancery clerk shall cover any money paid him as such receiver and the chancellor may prescribe such additional bond as he may think proper.
  3. No receiver shall be appointed under the provisions of this section unless all interested parties who are not parties to the petition shall be made defendants and all such defendants shall have been served with process of the court provided by law for cases in chancery court. The summons by publication shall be substantially in the following form:

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  4. The costs of the action for appointment of the receiver shall be taxed against the petitioners if they fail to prove their case.
  5. The receivership, once established, shall continue, unless dissolved by the court for good cause, for a period of at least ten (10) years.
  6. This section shall not alter or change any laws now in effect relating to suits for the removal of clouds upon title or the appointment of receivers under any other law, but is cumulative thereof.
  7. The term “tract of land” as used herein shall not be limited to property wherein petitioner owns an undivided interest; but may include any geographic boundary upon which mineral exploration and/or production may be conducted even though the tract may include property in which petitioner has no property interest or any other geographic boundary the court, in its discretion, may deem appropriate.

“THE STATE OF MISSISSIPPI (inserting names of defendants) You are summoned to appear before the Chancery Court of the County of in said state, on the Monday of , A.D. , to defend the suit of (et al.) praying the appointment of a receiver of an undivided mineral interest claimed to be owned by you in and under (here describe the land) wherein you are a defendant. This the day of , A.D. Clerk”

HISTORY: Codes, 1942, § 1324.5; Laws, 1950, ch. 340, §§ 1-5; Laws, 1980, ch. 412, § 1, eff from and after July 1, 1980.

Cross References —

Appointment or removal of receivers in vacation, see §11-5-151.

Receivers, generally, see §11-5-153 et seq.

Disposition of proceeds held by receiver, see §11-17-34.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Applicability of Mississippi Rules of Civil Procedure to proceedings brought under this section, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Absentees §§ 1- 14.

65 Am. Jur. 2d, Receivers § 12.

21 Am. Jur. Pl & Pr Forms (Rev), Receivers, Form 81 (Order appointing receiver on motion of party).

CJS.

75 C.J.S., Receivers §§ 10–17.

§ 11-17-34. Disposition of mineral lease proceeds held by receiver.

Unless otherwise released by the court, the receiver appointed in Section 11-17-33 shall hold all net proceeds paid in connection with such lease for a period of ten (10) years from the date of the decree establishing the receivership. If, at the end of that period of ten (10) years, no valid claim has been made for such moneys and said mineral interests, all moneys and mineral interests held by the receiver shall immediately escheat to the state in the same manner as if the absent person had died intestate leaving no heirs capable of inheriting as set forth in Chapter 11, Title 89, Mississippi Code of 1972. Provided, however, any person who is not concluded as a party or privy by a decree in favor of the state in proceedings to establish an escheat, may recover of the state, by suit, the net proceeds derived from any lease and from the sale of such minerals and paid into the state treasury, if the party shall establish his right to such minerals and that the same had not properly escheated to the state; but the title of the purchaser of such minerals shall not be thereby disturbed.

HISTORY: Laws, 1980, ch. 412, § 2, eff from and after July 1, 1980.

Cross References —

When property escheats to state, see §89-11-1.

Proceedings to establish escheats, see §89-11-5 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

ALR.

Uniform Disposition of Unclaimed Property Act. 98 A.L.R.2d 304.

Am. Jur.

1 Am. Jur. 2d, Abandoned, Lost and Unclaimed Property §§ 5- 30, 35— 39— 58 et seq.

27A Am. Jur. 2d, Escheat §§ 1-12, 30 et seq.

9 Am. Jur. Pl & Pr Forms (Rev) Escheat, Forms 1 et seq. (Proceedings to enforce escheat).

9 Am. Jur. Pl & Pr Forms (Rev), Escheat, Forms 21 et seq. (Recovery, restoration or reimbursement).

§ 11-17-35. Title of complainant must be deraigned—and decrees, in certain cases, recorded as deeds.

In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title. If title has passed out of the sovereign more than seventy-five (75) years prior to the filing of the bill, then the deraignment shall be sufficient if it show title out of the sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of the bill. A mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title. In all such cases, final decrees in the complainant’s favor shall be recorded in the record of deeds, and shall be indexed as if a conveyance of the land from the defendant or each of them, if more than one, to the complainant or complainants, if more than one.

HISTORY: Codes, 1892, § 501; 1906, § 551; Hemingway’s 1917, § 308; 1930, § 405; 1942, § 1325; Laws, 1962, ch. 285.

Cross References —

Requirement of recordable conveyance of land, see §89-3-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Jurisdiction.

2. Necessity of deraigning title.

3. Sufficiency of showing.

4. Presumptions and burden of proof.

5. Decree.

1. Jurisdiction.

The Chancellor’s decision enforcing settlement between landowners was affirmed because defendant granted her attorney actual authority to settle lawsuit and she did not terminate attorney-client relationship until after the settlement. Fortenberry v. Parker, 754 So. 2d 561, 2000 Miss. App. LEXIS 6 (Miss. Ct. App. 2000).

Jurisdiction respecting conclusive adjudication of land titles rests alone with circuit and chancery courts, and to limited extent with county courts. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

2. Necessity of deraigning title.

Even if it were true that a chancellor erred in excluding deeds from a property owner’s predecessors in a boundary line dispute case, the error was harmless because the deeds were not relevant as the chancellor ultimately relied on a survey. Mize v. Westbrook Constr. Co. of Oxford, LLC, 146 So.3d 352, 2013 Miss. App. LEXIS 432 (Miss. Ct. App. 2013), rev'd, in part, 146 So.3d 344, 2014 Miss. LEXIS 443 (Miss. 2014).

In an action to remove cloud on title, a plaintiff has the burden of showing perfect title and cannot rely on the weaknesses of a defendant’s title. Williams v. King, 860 So. 2d 847, 2003 Miss. App. LEXIS 1136 (Miss. Ct. App. 2003).

Judgment was properly awarded to plaintiffs in their suit against defendants for encroachment on their property where nothing in defendants’ motion for a new trial indicated that the chancery court erred in not requiring a deraignment of title, or in ruling the way it did in the absence of a deraignment of title; no Miss. R. Civ. P. 12(e) motion was ever filed to request that plaintiffs deraign their title. Crosswhite v. Golmon, 939 So. 2d 831, 2006 Miss. App. LEXIS 738 (Miss. Ct. App. 2006).

Although the Supreme Court would not reverse a decree confirming title to a slip or canal in the complainant merely because the complainant did not deraign title to himself as required by this section [Code 1942, § 1325] or give a good and valid reason why he did not do so, since the proof showed that title came from a common source, reversal was required where complainant failed to deraign title from the common source to the necessary parties to the suit, and his bill did not allege that he had joined in the suit all parties interested in the land so far as known to him and could be ascertained by diligent inquiry, and where one of the owners of one of the tracts purchased from the common source involved in the action had not been made a party thereto. Warren v. Clark, 230 Miss. 873, 94 So. 2d 323, 1957 Miss. LEXIS 435 (Miss. 1957).

In a suit to remove clouds on his title, where the complainant relies upon adverse possession for his title, it is not necessary to deraign record title to land. Cochran v. Cochran, 221 Miss. 780, 74 So. 2d 841, 1954 Miss. LEXIS 593 (Miss. 1954).

Deraignment of title is required only in bills to conform title to real estate and to cancel and remove clouds therefrom, and where a bill is brought to cancel a deed the demurrer was overruled. Martin v. Adams, 216 Miss. 270, 62 So. 2d 328, 1953 Miss. LEXIS 633 (Miss. 1953).

Requirement that bill for cancellation of title set out deraignment of title is made mandatory by this section [Code 1942, § 1325]. Smith v. Overstreet, 205 Miss. 488, 38 So. 2d 923, 1949 Miss. LEXIS 445 (Miss. 1949).

Bill for cancellation of title must meet requirements of this section [Code 1942, § 1325] by setting out deraignment of title, and it does not state case against defendants unless deraignment is sufficient, since complainant must depend upon strength of his own title and not weakness of that of his adversary. Smith v. Overstreet, 205 Miss. 488, 38 So. 2d 923, 1949 Miss. LEXIS 445 (Miss. 1949).

Chancellor is correct in sustaining special demurrer to bill for cancellation of title for failure to deraign title and, upon complainants’ refusal to amend, in dismissing bill, when the bill contains no deraignment or good and valid reason given for its absence, in accordance with this section [Code 1942, § 1325]. Smith v. Overstreet, 205 Miss. 488, 38 So. 2d 923, 1949 Miss. LEXIS 445 (Miss. 1949).

Complainant must deraign title or give reason for not doing so. Longmire v. Mars, 124 Miss. 77, 86 So. 753, 1920 Miss. LEXIS 498 (Miss. 1920).

Remaindermen cannot bring suit to cancel foreclosure sale under deed of trust of a life estate prior to the death of the original life tenants. Leflore v. Flowers, 118 Miss. 75, 79 So. 60, 1918 Miss. LEXIS 53 (Miss. 1918).

In suit to confirm title or remove clouds complainant must deraign title. Russell v. Hickory, 116 Miss. 46, 76 So. 825, 1917 Miss. LEXIS 293 (Miss. 1917).

Plaintiff in suit to confirm title must plead and prove perfect title in himself. Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619, 1917 Miss. LEXIS 146 (Miss. 1917).

Complainant seeking to cancel contracts for sale of timber land must deraign title in himself. Eastman v. Wyatt Lumber Co., 102 Miss. 313, 59 So. 93, 1912 Miss. LEXIS 60 (Miss. 1912).

Complainants seeking to redeem land from tax sale to their ancestors need not prove title in her, she being the common source of title of the parties. Westerfield v. Merchant, 93 Miss. 791, 47 So. 434, 1908 Miss. LEXIS 139 (Miss. 1908).

Complainant must show either (a) Title in himself from the government down, or (b) Title in himself by adverse possession, or (c) Title in himself from the defendant, or (d) That the parties to the suit claim under a common source, the complainant having the better title from that source. Long v. Stanley, 79 Miss. 298, 30 So. 823, 1901 Miss. LEXIS 81 (Miss. 1901); Smith v. Overstreet, 205 Miss. 488, 38 So. 2d 923, 1949 Miss. LEXIS 445 (Miss. 1949).

Complainant must show either (a) Title in himself from the government down, or (b) Title in himself by adverse possession, or (c) Title in himself from the defendant, or (d) That the parties to the suit claim under a common source, the complainant having the better title from that source. Long v. Stanley, 79 Miss. 298, 30 So. 823, 1901 Miss. LEXIS 81 (Miss. 1901); Smith v. Overstreet, 205 Miss. 488, 38 So. 2d 923, 1949 Miss. LEXIS 445 (Miss. 1949).

He must show as perfect a title, legal or equitable, as would enable him, the title being a legal one, to recover against the defendant in an action of ejectment. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208, 1889 Miss. LEXIS 36 (Miss. 1889).

3. Sufficiency of showing.

Chancery court properly partitioned the property at issue because accommodations appeared to have been made for the fair distribution of property between the three partited owners and the remaining cotenants, there was substantial evidence in the record to justify the chancellor’s division of the property, the complaint explained the interests devised in the will, the calculations, which were not in dispute, showed every descendant and devisee received their fair portion of the property according to the decedent’s will and the laws of intestate succession, and the statutory requirement of proof of title was fulfilled. Kohnke v. Tate, 270 So.3d 1076, 2018 Miss. App. LEXIS 499 (Miss. Ct. App. 2018).

In an action to confirm title to a parcel of land in the city of Biloxi, the trial court erred in not confirming title in the city where, in a prior eminent domain proceeding, the judgment revealed an adequate description by monuments of the entire parcel in question although there was a discrepancy in the distances set forth in the judgment. Biloxi Development Com. v. Frey, 401 So. 2d 716, 1981 Miss. LEXIS 2054 (Miss. 1981).

A bill of complaint in a proceeding requiring deraignment of title does not state a case against defendants thereto unless the deraignment be sufficient, since complainant must depend upon the strength of his own title and not the weakness of that of his adversary. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

Bill for confirmation of title which merely stated that the land was derived from a common source who “owned” the land was not sufficient in a deraignment, and the bill was demurrable for failure to show facts of the common source’s title. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

Either plaintiff or interveners, claiming title to plaintiff’s undivided interest in oil land by reason of quitclaim deed from plaintiff, subject to plaintiff’s right to receive payment for oil produced from the land, were proper parties to maintain action to confirm title to such land and to set aside colessor’s agreement executed by plaintiff. White v. Union Producing Co., 140 F.2d 176, 1944 U.S. App. LEXIS 3896 (5th Cir. 1944).

In suit to confirm tax title, bill alleging that title passed from Government by recorded patent to person against whom lands were assessed for taxes and that land was sold for unpaid taxes and tax deed was issued, filed, and acknowledged held sufficient to show deraignment of title. Salter v. Polk, 172 Miss. 263, 159 So. 855, 1935 Miss. LEXIS 138 (Miss. 1935).

In suit to confirm title or remove clouds general averment that complainant is real owner not sufficient. Russell v. Hickory, 116 Miss. 46, 76 So. 825, 1917 Miss. LEXIS 293 (Miss. 1917).

Bill to quiet title is demurrable if it fails to show facts as to validity of defendant’s title, or the interest of any of the parties in the land, or when decedent died or how any of the parties is heir to him. Thames v. Duvic, 89 Miss. 9, 42 So. 667, 1906 Miss. LEXIS 70 (Miss. 1906).

A mere statement in a bill that complainant is the real owner of the land is insufficient unless good and valid reason be given for the failure to deraign his title. Jackson v. Port Gibson Bank, 85 Miss. 645, 38 So. 35, 1904 Miss. LEXIS 179 (Miss. 1904).

4. Presumptions and burden of proof.

The presumption that land has been granted to the possessor by the state arises where there is some unexplained anomaly in the chain of title; however, this principle should not be construed to mean that the presumption arises only in the face of such an anomaly. The open and continuous possession of property by the claimants and their predecessors in title from 1892 to the present, together with the usual acts incident to ownership, were sufficient to raise the presumption of a grant. Board of Trustees v. Rye, 521 So. 2d 900, 1988 Miss. LEXIS 61 (Miss. 1988), limited, Bd. of Educ. v. Warner, 853 So. 2d 1159, 2003 Miss. LEXIS 311 (Miss. 2003).

Complainant has burden of showing perfect title in himself to maintain bill to remove clouds and establish his title to land. Nicholson v. Myres, 170 Miss. 441, 154 So. 282, 1934 Miss. LEXIS 106 (Miss. 1934).

In suit to confirm title where complainant proves possession for fifty years and a perfect chain of title back to an uncle of the original patentee, presumption arises of a lost deed from patentee to uncle. Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84, 1918 Miss. LEXIS 64 (Miss. 1918).

5. Decree.

Bill to quiet title, not alleging deraignment of title or claiming adverse possession, held insufficient to support decree pro confesso for complainant and final decree thereon. Smith v. Deas, 158 Miss. 111, 130 So. 105, 1930 Miss. LEXIS 25 (Miss. 1930).

In suit to confirm tax sale, if complainant fails to show title in himself from the government down, decree pro confesso not authorized; unauthorized decree pro confesso may be set aside. Lyon Co. v. Ratliff, 129 Miss. 342, 92 So. 229, 1922 Miss. LEXIS 49 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims §§ 33, 57.

CJS.

74 C.J.S., Quieting Title §§ 35-48, 71, 80, 81.

§ 11-17-37. Decrees as to possession, rents, etc.

In suits to try title, to cancel deeds and other clouds upon title, and to confirm title to real estate, the chancery court shall have jurisdiction to decree possession and to displace possession, to decree rents and compensation for improvements and taxes. In all cases where said courts heretofore exercised jurisdiction auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by a suit at law.

HISTORY: Codes, 1892, § 502; 1906, § 552; Hemingway’s 1917, § 309; 1930, § 406; 1942, § 1326.

Cross References —

Constitutional jurisdiction to decree possession and rents of real estate, see Miss. Const. Art. 6, § 160.

Procedure for attachment or distress for rent, see §89-7-55 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In an action for cancellation of an instrument conveying real estate, the fact that the affected land was in another state may make the law of that state controlling but did not, of itself, defeat the subject matter jurisdiction of the Mississippi courts. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1988 Miss. LEXIS 193 (Miss. 1988).

Chancery Court has jurisdiction to hear and adjudicate 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 Republic of Greece where all parties reside in Mississippi and have been effectively subjected to in personam jurisdiction of Chancery Court; court may enter personal judgment, even though controlling substantive law is that of Greece; final adjudication would effectively bind parties in Mississippi and presumably in all other states even though adjudication may not be enforceable in Greece as matter of right and maybe not even as matter of comity. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Where plaintiff in ejectment suit made the same allegations as those made in a prior suit for confirmation of title, except the allegation as to confirmation of title, decision in confirmation suit sustaining general demurrer for failure of complainant to show title in himself was res judicata in ejectment suit. Williams v. Patterson, 203 Miss. 865, 34 So. 2d 366, 1948 Miss. LEXIS 331 (Miss. 1948).

Decree of chancery court confirming title and possession of mortgagee to realty which mortgagee bought upon foreclosure of trust deed held not res judicata of action of unlawful entry and detainer instituted by mortgagee, where rents and compensation for improvements were sought in such action but were not sought in chancery proceeding. Lion Oil Refining Co. v. Crystal Oil Co., 171 Miss. 36, 156 So. 593, 1934 Miss. LEXIS 190 (Miss. 1934).

Where specific performance was denied purchaser who defaulted, court properly awarded purchaser sum for permanent and valuable improvements made in good faith. Swalm v. Gill, 151 Miss. 630, 118 So. 446, 1928 Miss. LEXIS 346 (Miss. 1928).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quieting Title and Determination of Adverse Claims § 57.

20 Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 13 (Judgment or decree quieting title and ordering issuance of writ of possession).

20A Am. Jur. Pl & Pr Forms (Rev), Quieting Title and Determination of Adverse Claims, Form 25.1 (Complaint, petition, or declaration – To remove cloud on title – To enjoin construction of edifice until boundary dispute determined).

CJS.

74 C.J.S., Quieting Title §§ 71, 80, 81.

Chapter 19. Ejectment

§ 11-19-1. In what case the action lies.

A civil action seeking ejectment as relief may be maintained in all cases where the plaintiff is legally entitled to the possession of the land sued for and demanded.

HISTORY: Codes, 1892, § 1626; 1906, § 1801; Hemingway’s 1917, § 1434; 1930, § 1427; 1942, § 778; Laws, 1991, ch. 573, § 36, eff from and after July 1, 1991.

Cross References —

Actions for unlawful entry and detainer, see §11-25-1 et seq.

Limitation of actions to recover land, see §15-1-7.

Action by board of supervisors to recover sixteenth sections or lieu lands, see §29-3-85.

Action against tenant holding over, see §89-7-27 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Generally.

2. Equitable defenses.

3. Actions against railroads.

1. Generally.

Plaintiff, who introduced a certificate from the United States land office showing that he had entered lands involved, and also certificates showing cancellation and surrender of prior entry under which defendants claimed, could maintain ejectment. Gilleylen v. Isbel, 119 Miss. 566, 81 So. 161, 1919 Miss. LEXIS 24 (Miss. 1919).

Where plaintiffs claimed as heirs and defendants claimed under a sale by the administrator of plaintiffs’ ancestor, it was error not to adjudge plaintiffs entitled to the homestead, especially excepted from the sale through which defendants claimed. Shannon v. Summers, 50 So. 693 (Miss. 1909).

Possession of land for ten years gives the possessor and those claiming under him a sufficient title to recover in ejectment against a mere intruder who has no title. Anderson v. Moore, 84 Miss. 400, 36 So. 520, 1904 Miss. LEXIS 54 (Miss. 1904).

The owner of the legal title to a strip of land may maintain ejectment therefor against defendant’s exercising exclusive possession thereof, although the latter have a right of way over the same. Lott v. Payne, 82 Miss. 218, 33 So. 948, 1903 Miss. LEXIS 121 (Miss. 1903).

A deed to a strip of land limiting the grantee’s interest to “a private easement or for street purpose only,” does not authorize the grantee to take exclusive possession of the land. Lott v. Payne, 82 Miss. 218, 33 So. 948, 1903 Miss. LEXIS 121 (Miss. 1903).

A plaintiff in ejectment who shows a perfect legal title in herself is entitled to recover, although she may have described herself in the declaration as administratrix of the estate and guardian of the heirs of the decedent. Richardson v. Biglane, 81 Miss. 676, 33 So. 650, 1902 Miss. LEXIS 202 (Miss. 1902).

The vendee in a deed from a husband living with his wife, which she did not sign, purporting to convey his homestead, cannot maintain ejectment for the lands after the death of the husband against those who claim under his heirs. Johnson v. Hunt, 79 Miss. 639, 31 So. 205, 1901 Miss. LEXIS 100 (Miss. 1901).

Ejectment does not lie for land taken for levee purposes by the board of levee commissioners for the Yazoo-Mississippi Delta, even when compensation has not preceded the taking. Owens v. Yazoo-Mississippi Delta Levee Board, 74 Miss. 269, 21 So. 12, 1896 Miss. LEXIS 143 (Miss. 1896).

2. Equitable defenses.

Where a plaintiff in ejectment suit made the same allegations as to right of possession as those made in prior suit for confirmation of title, which was adjudicated against him for failure to show title in himself, decision in confirmation suit was res judicata in ejectment suit. Williams v. Patterson, 203 Miss. 865, 34 So. 2d 366, 1948 Miss. LEXIS 331 (Miss. 1948).

This section [Code 1942, § 778] does not preclude an equitable defense to an action in ejectment; consequently, a lease, if conceded to be void as a lease, could operate as a valid contract to lease as a defense to an ejectment. Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311, 1939 Miss. LEXIS 199 (Miss. 1939).

Where defendant disclaims as to part of land, failure to adjudge it to plaintiff is not error, in the absence of a request. Buie v. Cloy, 127 Miss. 719, 90 So. 446, 1921 Miss. LEXIS 275 (Miss. 1921).

A decree dismissing a bill to redeem an undivided interest in land from a tax sale, and for partition after redemption, does not estop the complainant from setting up the invalidity of the tax sale when sued in ejectment for the same land. Brothers v. Beck, 75 Miss. 482, 22 So. 944, 1897 Miss. LEXIS 126 (Miss. 1897).

Holding that in ejectment equitable defenses are inadmissible; hence it is not permissible for the defendant to show that, because of the circumstances under which the purchaser bought at tax sale, he was a trustee of the legal title for defendant and disqualified to purchase and hold against him. Morgan v. Blewett, 72 Miss. 903, 17 So. 601, 1895 Miss. LEXIS 21 (Miss. 1895).

3. Actions against railroads.

Ejectment will lie against a railroad company to recover land upon which it has wrongfully entered and constructed its track, but where the defendant acted in good faith the recovery will be limited to the land itself, with compensation for any use to which the premises might reasonably have been put by him and a sum to cover all damages done by the defendant. Illinois C. R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150, 1902 Miss. LEXIS 301 (Miss. 1902).

A railroad track wrongfully constructed on land does not become a part of the freehold and upon ejection the railroad company has the right to remove the track, and this right applies as well to a short spur track as to a trunk line. Illinois C. R. Co. v. Hoskins, 80 Miss. 730, 32 So. 150, 1902 Miss. LEXIS 301 (Miss. 1902).

While ejectment can be maintained against a railroad company for the possession of its right of way, execution of such judgment should be stayed for reasonable time to enable the company to institute and prosecute a condemnation proceeding to acquire a right of way. Illinois C. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760, 1897 Miss. LEXIS 57 (Miss. 1897).

RESEARCH REFERENCES

ALR.

Remedy of tenant against stranger wrongfully interfering with his possession. 12 A.L.R.2d 1192.

Common source of title doctrine. 5 A.L.R.3d 375.

Validity, construction, and application of mobile home eviction statutes. 43 A.L.R.5th 705.

When is eviction of tenant by private landlord conducted “under color of state law” for purposes of 42 USCS § 1983. 73 A.L.R. Fed. 78.

Am. Jur.

25 Am. Jur. 2d, Ejectment §§ 1-2, 6 et seq.

CJS.

28A C.J.S., Ejectment §§ 1, 2 et seq.

§ 11-19-3. Power of courts over proceedings.

The court in which an action of ejectment may be brought or be pending may exercise over the proceedings therein the like jurisdiction and control as heretofore exercised in the action of ejectment, so as to insure a trial of the title only, and of actual ouster when necessary, and for all other purposes for which such jurisdiction was heretofore exercised.

HISTORY: Codes, 1857, ch. 55, art. 33; 1871, § 1570; 1880, § 2514; 1892, § 1627; 1906, § 1802; Hemingway’s 1917, § 1435; 1930, § 1428; 1942, § 779.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Chancery Court is proper forum to hear ejectment proceeding in which sole defense is equitable defense of “fraudulent means.” Hudson v. Bank of Edwards, 469 So. 2d 1234, 1985 Miss. LEXIS 2085 (Miss. 1985).

An owner, not made a party to and not having notice of an action in ejectment against a tenant of a tenant, is not affected by the judgment. Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827, 1908 Miss. LEXIS 250 (Miss. 1908).

A court of equity will enforce, and is the proper forum in which to assert, the rights of one who owns a house situated on the land of another. Decell v. McRee, 83 Miss. 423, 35 So. 940, 1903 Miss. LEXIS 60 (Miss. 1903).

In such case a judgment by default in an ejectment suit brought for the land by its owner against the owner of the house is not res adjudicata of the right of the defendant to remove the house, since the house is personal property. Decell v. McRee, 83 Miss. 423, 35 So. 940, 1903 Miss. LEXIS 60 (Miss. 1903).

§ 11-19-5. Who may be made defendants.

If the premises for which the action is brought be actually occupied by any person, such actual occupant shall be made a defendant in the suit; and all other persons claiming title or interest to or in the same may also, in all cases, be joined as defendants. If the premises be not occupied, the action shall be brought against some person exercising acts of ownership over the premises claimed, or claiming title thereto or some interest therein at the commencement of the suit.

HISTORY: Codes, 1892, § 1628; 1906, § 1803; Hemingway’s 1917, § 1436; 1930, § 1429; 1942, § 780.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. 2d, Ejectment § 23.

CJS.

28A C.J.S., Ejectment §§ 70-76.

§ 11-19-7. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1892, § 1629; 1906, § 1804; Hemingway’s 1917, § 1437; 1930, § 1430; 1942, § 781]

Editor’s Notes —

Former §11-19-7 pertained to publication of the summons for a nonresident defendant.

§ 11-19-9. Landlord notified and admitted to defend.

Every tenant sued in a civil action seeking ejectment as relief shall forthwith give notice thereof to his landlord, under penalty of three (3) years’ rent of the premises, to be recovered by the landlord or his representatives in a civil action. The landlord of such tenant, or any other proper person, shall, by leave of the court or judge, be admitted to appear and defend the action in all cases where the same would have been allowed heretofore, and either separately or jointly with the tenant. Any person admitted to defend as landlord in respect of property whereof he is in possession only by his tenant, shall state in his answer that he defends as such landlord, and such person shall be allowed to set up any defense he has heretofore been allowed to set up, and no other. Any judgment in such action shall have the same effect for or against such person so admitted to defend as if he had been named in the complaint and regularly served with process.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 1 (85, 86); 1857, ch. 55, art. 4; 1871, § 1542; 1880, § 2482; 1892, § 1630; 1906, § 1805; Hemingway’s 1917, § 1438; 1930, § 1431; 1942, § 782; Laws, 1991, ch. 573, § 37, eff from and after July 1, 1991.

Cross References —

Relations between landlord and tenant, generally, see §89-7-1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

9 Am. Jur. P & P Forms (Rev), Ejectment, Forms 82 et seq. (Substituting landlord for tenant as defendant).

CJS.

28A C.J.S., Ejectment § 78.

§ 11-19-11. Reversioner or remainderman admitted to defend.

If a tenant for life or lives be impleaded concerning the land holden, the person to whom the reversion or remainder belongs may come into court at any time before judgment, and shall be admitted to defend his right.

HISTORY: Codes, 1880, § 2516; 1892, § 1631; 1906, § 1806; Hemingway’s 1917, § 1439; 1930, § 1432; 1942, § 783.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-13. Default of tenant for life not to prejudice.

If a tenant for life or lives, when impleaded, make default or give up the tenement demanded, or if the judgment be given on such default or surrender, the person to whom the reversion or remainder belongs after the determination of the life estate, shall not be prejudiced or injured by such default, surrender, or judgment.

HISTORY: Codes, 1880, § 2517; 1892, § 1632; 1906, § 1807; Hemingway’s 1917, § 1440; 1930, § 1433; 1942, § 784.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-15. Declaration.

The consent rule, and all fictions heretofore used in a civil action seeking ejectment as relief, are abolished; and the action shall be commenced by filing a complaint in the name of the person claiming the premises in question, as plaintiff against the defendant. The complaint shall describe the premises with such certainty as will distinctly apprise the defendant of their description and situation, and so that from such description possession may be delivered. If the plaintiff claim only an undivided interest therein, it shall state such interest. If the plaintiff claim more than he is entitled to, he may, nevertheless, recover so much as he shall prove title to.

HISTORY: Codes, 1857, ch. 55, art. 1; 1871, § 1539; 1880, § 2479; 1892, § 1633; 1906, § 1808; Hemingway’s 1917, § 1441; 1930, § 1434; 1942, § 785; Laws, 1991, ch. 573, § 38, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

If the declaration describe the land by numbers and the deeds offered in evidence describe it by metes and bounds, it is no objection, if the proof show it to be the same land. Lum v. Reed, 53 Miss. 73, 1876 Miss. LEXIS 38 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. 2d, Ejectment §§ 27 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Ejectment, Forms 1 et seq. (Complaint, petition or declaration).

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 84.1 (Stipulation of agreement – Tenant’s consent to issuance and execution of warrant of eviction).

CJS.

28A C.J.S., Ejectment §§ 80, 81, 85 et seq.

§ 11-19-17. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 55, art. 2; 1871, § 1540; 1880, § 2480; 1892, § 1634; 1906, § 1809; Hemingway’s 1917, § 1442; 1930, § 1435; 1942, § 786]

Editor’s Notes —

Former §11-19-17 provided for the issuing of a summons on filing the declaration.

§ 11-19-19. Answer and defense.

The defendants, or any of them, shall be allowed to answer or otherwise defend the action, either jointly or separately. The answer, if the defendant do not admit the plaintiff’s title, shall be “not guilty,” which shall be filed within the like time as required in personal actions; and under said answer the defendant may give in evidence any lawful defense to the action not inconsistent with the other provisions of this chapter. Any defendant may defend for a part only of the premises in question; and in such case the part shall be described in the answer with the same certainty required in the complaint.

HISTORY: Codes, 1857, ch. 55, art. 3; 1871, § 1541; 1880, § 2481; 1892, § 1635; 1906, § 1810; Hemingway’s 1917, § 1443; 1930, § 1436; 1942, § 787; Laws, 1991, ch. 573, § 39, eff from and after July 1, 1991.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Under “not guilty” the defendant cannot disprove his possession. A denial of possession must be specially pleaded. Bernard v. Elder, 50 Miss. 336, 1874 Miss. LEXIS 64 (Miss. 1874).

A plea setting up the statute of limitations is a nullity, that defense can be made under the general issue. Hutto v. Thornton, 44 Miss. 166, 1870 Miss. LEXIS 97 (Miss. 1870); Wilson v. Williams' Heirs, 52 Miss. 487, 1876 Miss. LEXIS 245 (Miss. 1876); Dean v. Tucker, 58 Miss. 487, 1880 Miss. LEXIS 148 (Miss. 1880).

RESEARCH REFERENCES

ALR.

Defense of adverse possession or statute of limitations as available under general denial or plea of general issue in ejectment action. 39 A.L.R.2d 1426.

Am. Jur.

25 Am. Jur. 2d, Ejectment §§ 31, 33, 34.

CJS.

28A C.J.S., Ejectment §§ 82, 95-109.

§ 11-19-21. Pleading amended as to description of premises.

If the premises be not described with sufficient certainty in the complaint or answer, the court or judge may order the pleading to be amended so as to contain a sufficient description. If either party fail to comply with such order, judgment may be entered as for want of a complaint or answer, according to the circumstances of the case.

HISTORY: Codes, 1857, ch. 55, art. 6; 1871, § 1544; 1880, § 2484; 1892, § 1636; 1906, § 1811; Hemingway’s 1917, § 1444; 1930, § 1437; 1942, § 788; Laws, 1991, ch. 573, § 40, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. 2d, Ejectment §§ 28- 34.

CJS.

28A C.J.S., Ejectment §§ 86, 87, 114-116.

§ 11-19-23. Forms of proceedings.

Declarations, writs, and pleas in the form or to the effect of the precedents appended hereto, shall be good and sufficient for all purposes in proceedings under this chapter.

HISTORY: Codes, 1857, ch. 55, art. 35; 1871, § 1547; 1880, § 2487; 1892, § 1637; 1906, § 1812; Hemingway’s 1917, § 1445; 1930, § 1438; 1942, § 789.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The extent to which rescission from the common law is conceded by this section [Code 1942, § 789] is limited to the prescribed forms. Burns v. Allen, 202 Miss. 240, 31 So. 2d 125, 1947 Miss. LEXIS 266 (Miss. 1947).

§ 11-19-25. Form of declaration.

“The State of Mississippi In the circuit court term, County of A.D. “A B, plaintiff, claims the right to possession of a tract of land, situated in County, containing acres, more or less, and being more particularly described as follows: (here insert legal description of premises); and that the defendant wrongfully deprives him of the possession thereof, for which damage in the amount of Dollars are here demanded. “E F, Attorney for Plaintiff.” If mesne profits be demanded, add to the above form the following: “And the plaintiff also demands of the defendant the sum of Dollars for the use and occupation of the said land by the defendant.”

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HISTORY: Codes, 1892, § 1638; 1906, § 1813; Hemingway’s 1917, § 1446; 1930, § 1439; 1942, § 790; Laws, 1991, ch. 573, § 41, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Mesne profits up to the trial are recoverable in the action, and the demand for use and occupation is barred in six years-not three. Dean v. Tucker, 58 Miss. 487, 1880 Miss. LEXIS 148 (Miss. 1880).

§§ 11-19-27 through 11-19-51. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-19-27. [Codes, 1892, § 1639; 1906, § 1814; Hemingway’s 1917, § 1447; 1930, § 1440; 1942, § 791]

§11-19-29. [Codes, 1892, § 1640; 1906, § 1815; Hemingway’s 1917, § 1448; 1930, § 1441; 1942, § 792]

§11-19-31. [Codes, 1892, § 1641; 1906, § 1816; Hemingway’s 1917, § 1449; 1930, § 1442; 1942, § 793]

§11-19-33. [Codes, 1892, § 1642; 1906, § 1817; Hemingway’s 1917, § 1450; 1930, § 1443; 1942, § 794]

§11-19-35. [Codes, 1892, § 1643; 1906, § 1818; Hemingway’s 1917, § 1451; 1930, § 1444; 1942, § 795]

§11-19-37. [Codes, 1892, § 1644; 1906, § 1819; Hemingway’s 1917, § 1452; 1930, § 1445; 1942, § 796]

§11-19-39. [Codes, 1892, § 1645; 1906, § 1820; Hemingway’s 1917, § 1453; 1930, § 1446; 1942, § 797]

§11-19-41. [Codes, 1857, ch. 55, art. 8; 1871, § 1546; 1880, § 2486; 1892, § 1646; 1906, § 1821; Hemingway’s 1917, § 1454; 1930, § 1447; 1942, § 798]

§11-19-43. [Codes, 1857, ch. 55, art. 5; 1871, § 1543; 1880, § 2483; 1892, § 1647; 1906, § 1822; Hemingway’s 1917, § 1455; 1930, § 1448; 1942, § 799]

§11-19-45. [Codes, 1857, ch. 55, art. 7; 1871, § 1545; 1880, § 2485; 1892, § 1648; 1906, § 1823; Hemingway’s 1917, § 1456; 1930, § 1449; 1942, § 800]

§11-19-47. [Codes, 1857, ch. 55, art. 9; 1871, § 1548; 1880, § 2488; 1892, § 1649; 1906, § 1824; Hemingway’s 1917, § 1457; 1930, § 1450; 1942, § 801]

§11-19-49. [Codes, 1857, ch. 55, art. 10; 1871, § 1549; 1880, § 2489; 1892, § 1650; 1906, § 1825; Hemingway’s 1917, § 1458; 1930, § 1451; 1942, § 802]

§11-19-51. [Codes, 1857, ch. 55, art. 11; 1871, § 1550; 1880, § 2490; 1892, § 1651; 1906, § 1826; Hemingway’s 1917, § 1459; 1930, § 1452; 1942, § 803]

Editor’s Notes —

Former §11-19-27 was a form of summons.

Former §11-19-29 was a form of plea by tenant defending for whole.

Former §11-19-31 was a form of plea where tenant defends for part.

Former §11-19-33 was a form of plea by landlord defending separately.

Former §11-19-35 was a form of plea by any other than the landlord.

Former §11-19-37 was a form of plea by landlord and tenant defending.

Former §11-19-39 was a form of plea by other than landlord defending with the tenant.

Former §11-19-41 pertained to denying possession by special plea.

Former §11-19-43 provided that a plea of not guilty was an admission of possession.

Former §11-19-45 pertained to judgments by default.

Former §11-19-47 pertained to a judgment when the defense was limited to a part of the premises.

Former §11-19-49 pertained to discontinuances.

Former §11-19-51 pertained to the situation where one of several defendants retracts his plea and confesses the action.

§ 11-19-53. Right to discover details of claim or title to premises.

After issue joined in ejectment, either party may discover the details of the other’s claim or title to the premises in question, and the response thereto shall include a short abstract of such documentary evidences of title as the party may intend to give in evidence on the trial, and a clear and succinct statement of the substance of any and all lost or destroyed documents the contents of which he may expect to prove. If title be claimed by inheritance, or if claimed on any fact which rests in parol, the facts shall be stated. In case of claim by inheritance, if either party demand it, the other shall give the ages of the several persons to whom the land descended, and the date of the death of the person from whom they inherited the premises. If any document referred to in the response to such discovery request made by law be recorded, it shall also state where it is recorded, or, if not recorded, then it shall include copies of such as are in the possession of the party, with the names of the subscribing witnesses thereto, if any. The discovery response shall be served within the time and in the manner prescribed by the Mississippi Rules of Civil Procedure and, in default thereof, evidence of such title shall not be given on the trial. In all cases, the evidence of title shall be confined to the matters contained in the discovery response.

HISTORY: Codes, 1857, ch. 55, art. 12; 1871, § 1551; 1880, § 2491; 1892, § 1652; 1906, § 1827; Hemingway’s 1917, § 1460; 1930, § 1453; 1942, § 804; Laws, 1991, ch. 573, § 42, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Bill of particulars.

Where plaintiffs in ejectment in their bill of particulars deraign title by inheritance from their father, who, they claim, acquired title by adverse possession, they are confined to the title outlined, and may not recover by showing a different title by inheritance from their mother. Smith v. Whittington, 112 Miss. 759, 73 So. 785, 1916 Miss. LEXIS 170 (Miss. 1916).

Party rendering a bill of particulars not required to inform his adversary of evidence which he will introduce to show the invalidity of any deed or other source of title through which the adversary may claim. Mitchell v. Tubb, 107 Miss. 221, 65 So. 216, 1914 Miss. LEXIS 71 (Miss. 1914).

Plaintiff in ejectment who deduces a perfect title from common source need not prove title from the government. Richards v. Lee, 91 Miss. 657, 45 So. 570, 1907 Miss. LEXIS 184 (Miss. 1907).

Defendant in ejectment should not have been permitted to introduce any evidence on failure to furnish a bill of particulars after demand made on him in strict compliance with Code 1892, § 1652. W. C. Early & Co. v. Long, 89 Miss. 285, 42 So. 348, 1906 Miss. LEXIS 37 (Miss. 1906).

The statute expressly confines the parties in an action of ejectment, where they have filed such bills, to the evidence specified in their bills of particulars of title. Goforth v. Stingily, 79 Miss. 398, 30 So. 690, 1901 Miss. LEXIS 58 (Miss. 1901).

If the bills of particulars of the parties deraign title from a common source, plaintiff need not give evidence of title in that source, as the bill of particulars, when filed, is an admission of record that the party claims title as therein indicated. Gillum v. Case, 67 Miss. 588, 7 So. 551, 1890 Miss. LEXIS 131 (Miss. 1890).

2. —Amendment.

In ejectment it is not reversible error to deny plaintiff’s application to amend his bill of particulars of title under this section [Code 1942, § 804], where the same was made after the jury was impaneled and after undue delay, without explaining the delay or submitting the amendment proposed to the court. Goforth v. Stingily, 79 Miss. 398, 30 So. 690, 1901 Miss. LEXIS 58 (Miss. 1901).

Where the defendant files his bill of particulars with the clerk, instead of delivering it to the plaintiff, and because thereof plaintiff objected to any evidence of title by defendant, it was not error to overrule such objection, if the court offered to continue the case if plaintiff were taken by surprise. A defendant may be allowed to amend his bill of particulars on the trial by citing the correct pages of deed books. Summers v. Brady, 56 Miss. 10, 1878 Miss. LEXIS 33 (Miss. 1878).

RESEARCH REFERENCES

ALR.

Comment Note: Common source of title doctrine. 5 A.L.R.3d 375.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Ejectment, Form 13 (Bill of particulars and abstract of documentary evidence of title).

CJS.

28A C.J.S., Ejectment § 199-206.

§ 11-19-55. Either party may have a survey made.

In case either party shall desire a survey to be made of the premises sued for in ejectment, he may cause the same to be made, after the institution of the suit, by applying to the clerk of the court in which the suit is brought to issue a commission for that purpose, directed to the county surveyor, or other surveyor, authorizing him to make a survey of the premises, and report the same, under oath, to the court at the next term. Such a survey shall not be made without first giving five days’ notice to the opposite party at the time of making the same. The party at whose instance the survey was made shall pay the expenses thereof, but may recover the same as costs, in case he succeed in the action and the judgment be that the survey was necessary in deciding the issue.

HISTORY: Codes, 1857, ch. 55, art. 21; 1871, § 1558; 1880, § 2492; 1892, § 1653; 1906, § 1828; Hemingway’s 1917, § 1461; 1930, § 1454; 1942, § 805.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Either party may introduce in evidence surveys made after the institution of the suit, and the testimony of the surveyors in reference thereto. Cannon v. Yarbrough, 127 Miss. 186, 127 Miss. 189, 89 So. 911, 1921 Miss. LEXIS 212 (Miss. 1921).

Code 1892, § 1653, does not modify the rule of evidence which permits a party to introduce maps of the premises and testimony of the surveyors who made the survey explanatory thereof, and such maps and testimony are admissible, although the survey referred to therein was not made in compliance with the provisions of the code. Lenoir v. People's Bank of Laurel, 87 Miss. 559, 40 So. 5, 1905 Miss. LEXIS 162 (Miss. 1905).

§ 11-19-57. Action not abated by death.

The death of a plaintiff or defendant in ejectment shall not cause the action to abate, but it may be continued after timely substitution of parties as prescribed by the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1857, ch. 55, art. 22; 1871, § 1559; 1880, § 2493; 1892, § 1654; 1906, § 1829; Hemingway’s 1917, § 1462; 1930, § 1455; 1942, § 806; Laws, 1991, ch. 573, § 43, eff from and after July 1, 1991.

Cross References —

Actions which survive generally, see §91-7-233.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

§§ 11-19-59 through 11-19-79. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-19-59. [Codes, 1857, ch. 55, art. 23; 1871, § 1560; 1880, § 2494; 1892, § 1655; 1906, § 1830; Hemingway’s 1917, § 1463; 1930, § 1456, 1942, § 807]

§11-19-61. [Codes, 1857, ch. 55, art. 24; 1871, § 1561; 1880, § 2495; 1892, § 1656; 1906, § 1831; Hemingway’s 1917, § 1464; 1930, § 1457; 1942, § 808]

§11-19-63. [Codes, 1857, ch. 55, art. 25; 1871, § 1562; 1880, § 2496; 1892, § 1657; 1906, § 1832, Hemingway’s 1917, § 1465; 1930, § 1458; 1942, § 809]

§11-19-65. [Codes, 1857, ch. 55, art. 26; 1871, § 1563; 1880, § 2497; 1892, § 1658; 1906, § 1833; Hemingway’s 1917, § 1466; 1930, § 1459; 1942, § 810]

§11-19-67. [Codes, 1857, ch. 55, art. 27; 1871, § 1564; 1880, § 2498; 1892, § 1659; 1906, § 1834, Hemingway’s 1917, § 1467; 1930, § 1460; 1942, § 811]

§11-19-69. [Codes, 1857, ch. 55, art. 28; 1871, § 1565; 1880, § 2499, 1892, § 1660; 1906, § 1835; Hemingway’s 1917, § 1468; 1930, § 1461; 1942, § 812]

§11-19-71. [Codes, 1857, ch. 55, art. 29; 1871, § 1566; 1880, § 2500; 1892, § 1661; 1906, § 1836; Hemingway’s 1917, § 1469; 1930, § 1462; 1942, § 813]

§11-19-73. [Codes, 1857, ch. 55, art. 30; 1871, § 1567; 1880, § 2501; 1892, § 1662; 1906, § 1837; Hemingway’s 1917, § 1470; 1930, § 1463; 1942, § 814]

§11-19-75. [Codes, 1857, ch. 55, art. 31; 1871, § 1568; 1880, § 2502; 1892, § 1663; 1906, § 1838; Hemingway’s 1917, § 1471; 1930, § 1464; 1942, § 815]

§11-19-77. [Codes, 1857, ch. 55, art. 34; 1871, § 1571; 1880, § 2515; 1892, § 1664; 1906, § 1839, Hemingway’s 1917, § 1472; 1930, § 1465; 1942, § 816]

§11-19-79. [Codes, 1857, ch. 55, art. 14; 1871, § 1552; 1880, § 2503; 1892, § 1665; 1906, § 1840; Hemingway’s 1917, § 1473; 1930, § 1466; 1942, § 817]

Editor’s Notes —

Former §11-19-59 pertained to the situation where one of several plaintiffs died.

Former §11-19-61 pertained to the situation where one of several plaintiffs died after verdict or judgment.

Former §11-19-63 pertained to the situation where a plaintiff died and plaintiff’s rights did not survive.

Former §11-19-65 pertained to the situation where the sole plaintiff died after verdict.

Former §11-19-67 pertained to the situation where one of several defendants died before judgment.

Former §11-19-69 pertained to the situation where all defendants died before trial.

Former §11-19-71 pertained to the situation where all defendants died after verdict.

Former §11-19-73 pertained to the situation where one of several defendants who defended separately died.

Former §11-19-75 pertained to the situation where one of several defendants who defended separately for the same property which another defendant defended dies.

Former §11-19-77 defined “legal representative.”

Former §11-19-79 pertained to the trial and its incidents.

§ 11-19-81. When title of plaintiff has expired.

If it appear at the trial that the plaintiff or plaintiffs, or one (1) of them, was, at the commencement of the action, entitled to recover possession of the premises in question, or of some part thereof, but that his or their title has expired at the time of the trial, the plaintiff or plaintiffs so entitled shall, notwithstanding such expiration, have a verdict according to the fact that he had such right of recovery at the commencement of the action, and shall recover his costs of suit; but as to the premises claimed, the judgment shall be that the plaintiff be involuntarily dismissed.

HISTORY: Codes, 1857, ch. 55, art. 15; 1871, § 1553; 1880, § 2504; 1892, § 1666; 1906, § 1841; Hemingway’s 1917, § 1474; 1930, § 1467; 1942, § 818; Laws, 1991, ch. 573, § 44, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-83. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 55, art. 16; 1871, § 1554; 1880, § 2505; 1892, § 1667; 1906, § 1842; Hemingway’s 1917, § 1475; 1930, § 1468; 1942, § 819]

Editor’s Notes —

Former §11-19-83 provided for the successful party to recover costs.

§ 11-19-85. Trial of action between cotenants.

In case the action be brought by some one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener defending the action, may give notice with his answer or other defense that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property. Upon the trial of the issue, if it appear that the defendant is a joint tenant, tenant in common, or coparcener with the plaintiff, and actual ouster shall not be proved, then the plaintiff shall be involuntarily dismissed, with costs. But if it be proved either that the defendant is not a joint tenant, tenant in common, or coparcener, or that an actual ouster had taken place, then the jury shall so find by the verdict, and the plaintiff shall have judgment in accordance with the verdict for the recovery of possession and costs.

HISTORY: Codes, 1857, ch. 55, art. 18; 1871, § 1555; 1880, § 2506; 1892, § 1668; 1906, § 1843; Hemingway’s 1917, § 1476; 1930, § 1469; 1942, § 820; Laws, 1991, ch. 573, § 45, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

From an early date, it has been recognized in this jurisdiction that the entry of an heir into the possession of property with a notorious claim of exclusive right may disseize the other heirs, his cotenants. Bayless v. Alexander, 245 So. 2d 17, 1971 Miss. LEXIS 1349 (Miss. 1971).

Under a former enactment of these provisions (§§ 2506, 2512, Code of 1880), a tenant in common who had been ousted by his co-tenant might maintain a judgment against him and recover rents and profits in the same action. Clay v. Field, 115 U.S. 260, 6 S. Ct. 36, 29 L. Ed. 375, 1885 U.S. LEXIS 1835 (U.S. 1885).

§ 11-19-87. When a crop is growing on the land.

If the jury find for the plaintiff in an action of ejectment, and the defendant have a crop then planted and growing upon the premises in question, it shall assess a reasonable rent for the plaintiff to receive for the use of the premises, for such time as it may think necessary for the defendant to make and gather his crop. If the defendant enter into bond with security, to be approved by the court, or by the clerk in vacation, in a penalty of double the amount of rent so assessed, payable to the plaintiff, conditioned for the payment of the rent assessed at the expiration of the term fixed by the jury for the defendant to hold possession of the premises, then a writ of possession shall not issue upon the judgment in the action, until the expiration of the time so allowed by the jury. The bond shall be filed in the office of the clerk of the court, and, if forfeited, shall have the force and effect of a judgment, and execution may issue thereon against the principal and sureties as upon other judgments in the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1 (88), 1857, ch. 55, art. 19; 1871, § 1556; 1880, § 2507; 1892, § 1669; 1906, § 1844; Hemingway’s 1917, § 1477; 1930, § 1470; 1942, § 821.

Cross References —

Landlord’s lien for supplies furnished sharecropper, see §85-7-1.

Other landlord’s liens on agricultural products, see §§89-7-51,89-7-53.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

21A Am. Jur. 2d, Crops §§ 32- 33.

§ 11-19-89. Proceedings as to crop upon affirmance of judgment in Supreme Court.

If a judgment in favor of the plaintiff in an action of ejectment be affirmed by the Supreme Court, and the appellant have a crop then planted and growing upon the premises in question, and shall file with the clerk of the circuit court in which the judgment was recovered an affidavit of the fact, and shall undertake, in writing, with such sureties and such sum as the clerk may require, to pay to the opposite party the rent which may be adjudged to be paid for the use and occupation of said premises until the end of the current year, a writ of possession shall not issue until the end of the year, and the affidavit and security for rent shall be filed by the clerk among the papers in the case. The clerk may examine the parties and other persons on oath as to the value of such rent and the sufficiency of the sureties, and may require their statements to be written and signed by them.

HISTORY: Codes, 1880, §§ 2508, 2509; 1892, § 1670; 1906, § 1845; Hemingway’s 1917, § 1478; 1930, § 1471; 1942, § 822.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-91. Judgment on the bond in proceedings involving crop.

If such rent be not paid, on motion of the plaintiff, a motion to assess damages shall be executed at the next or any future term of the circuit court to ascertain the value of the rent of said premises, and judgment shall be rendered on the verdict for the amount found by the jury against the parties bound on such undertaking for rent. If any have died, like proceedings shall be had as provided in case of the death of any of the sureties on the bond of a claimant of personal property levied on under execution before final judgment.

HISTORY: Codes, 1880, § 2510; 1892, § 1671; 1906, § 1846; Hemingway’s 1917, § 1479; 1930, § 1472; 1942, § 823; Laws, 1991, ch. 573, § 46, eff from and after July 1, 1991.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-93. Exceptions to insufficient bond.

If the plaintiff allege that the amount of the security required by the clerk for rent to prevent the issuance of a writ of possession is insufficient, the circuit judge, in term time or vacation, shall hear the allegations and inquire into the matter, and may order a new undertaking for the rent to be given within such time as he shall prescribe; and if it shall not be given, a writ of possession shall be issued as if security for rent had not been given. Five days’ notice of such complaint to the circuit judge shall be given to the opposite party.

HISTORY: Codes, 1880, § 2511; 1892, § 1672; 1906, § 1847; Hemingway’s 1917, § 1480; 1930, § 1473; 1942, § 824.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-95. Mesne profits and compensation for improvements.

In all cases where the defendant in ejectment would be liable for mesne profits and damages, the plaintiff may declare for and recover the same in the action of ejectment, or he may have his action for mesne profits after the recovery in ejectment as heretofore. It shall be lawful in all cases for the defendant in ejectment, whether the plaintiff demand mesne profits or damages or not, or in an action of mesne profits, to plead the value of all permanent, valuable and not ornamental improvements made on the land by the defendant, or by any one under whom he holds, before notice of the intention of the plaintiff to bring the action, and all taxes that may have been lawfully paid on the land by defendant or those under whom he holds up to the date of trial, including interest, costs, and damages incident to such taxes; but a defendant shall not be entitled to such compensation for improvements or taxes unless he claim the premises under some deed or contract of purchase acquired or made in good faith.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 13 (1); 1857, ch. 55, art. 20; 1871, § 1557; 1880, § 2512; 1892, § 1673; 1906, § 1848; Hemingway’s 1917, § 1481; 1930, § 1474; 1942, § 825.

Cross References —

Finding value of improvements, see §11-19-97.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Mesne profits, generally.

2. Improvements.

3. —Good faith.

4. Setting off improvements and mesne profits.

1. Mesne profits, generally.

The statute of limitations of six years applies to the demand for rents asserted by plaintiff in ejectment. Lindenmayer v. Gunst, 70 Miss. 693, 13 So. 252, 1893 Miss. LEXIS 61 (Miss. 1893).

Under a former enactment of these provisions (§§ 2506, 2512, Code of 1880), a tenant in common who had been ousted by his co-tenant might maintain a judgment against him and recover rents and profits in the same action. Clay v. Field, 115 U.S. 260, 6 S. Ct. 36, 29 L. Ed. 375, 1885 U.S. LEXIS 1835 (U.S. 1885).

Remaindermen cannot, in ejectment or any other action, recover mesne profits which have accrued during the continuance of the life estate, and the owner of the life estate cannot recover compensation for improvements made during the existence of such estate. Pass v. McLendon, 62 Miss. 580, 1885 Miss. LEXIS 112 (Miss. 1885).

The statute of limitations of six years, and not three, applies to a demand for mesne profits. Dean v. Tucker, 58 Miss. 487, 1880 Miss. LEXIS 148 (Miss. 1880).

The plaintiff, if he demand mesne profits in his ejectment suit, may recover them up to the trial. Bell v. Medford, 57 Miss. 31, 1879 Miss. LEXIS 7 (Miss. 1879); Dean v. Tucker, 58 Miss. 487, 1880 Miss. LEXIS 148 (Miss. 1880).

The judgment, where the mesne profits are demanded, is a bar to a subsequent action for the mesne profits which accrued pending the suit. Bell v. Medford, 57 Miss. 31, 1879 Miss. LEXIS 7 (Miss. 1879).

It is optional with the plaintiff to demand the mesne profits in his action of ejectment, or he may sue for them in a subsequent action. Emrich v. Ireland, 55 Miss. 390, 1877 Miss. LEXIS 148 (Miss. 1877).

2. Improvements.

Where specific performance was denied purchaser who defaulted, court properly awarded purchaser sum for permanent and valuable improvements. Swalm v. Gill, 151 Miss. 630, 118 So. 446, 1928 Miss. LEXIS 346 (Miss. 1928).

Statute followed by court of equity in awarding compensation to occupant of land when dispossessed by the true owner thereof. Pritchett v. Stevens, 126 Miss. 221, 88 So. 627, 1921 Miss. LEXIS 26 (Miss. 1921); Pritchett v. Hibbler, 126 Miss. 379, 88 So. 882, 1921 Miss. LEXIS 45 (Miss. 1921).

Compensation for improvements is applicable only where there can be a demand for mesne profits, and improvements put upon land by the life tenant pass to the remainderman, and as the life tenant is not liable for rents, he is not entitled to compensation for improvements made during the existence of his estate. Deanes v. Whitfield, 107 Miss. 273, 65 So. 246, 1914 Miss. LEXIS 78 (Miss. 1914).

A defendant, purchaser for value in good faith, can obtain relief for valuable, permanent and not ornamental improvements in a suit at law and has no ground because thereof for a suit in equity. Demourelle v. Piazza, 77 Miss. 433, 27 So. 623, 1899 Miss. LEXIS 93 (Miss. 1899).

As to improvements made on land acquired under guardian sale that is void, see Hicks v. Blakeman, 74 Miss. 459, 21 So. 7, 1896 Miss. LEXIS 137 (Miss. 1896).

The defendant in ejectment can recover compensation for improvements put upon the land sued upon only where the plaintiff has the right to demand mesne profits of the defendant. Pass v. McLendon, 62 Miss. 580, 1885 Miss. LEXIS 112 (Miss. 1885).

The value of improvements should be assessed on a basis coextensive in time with the estimate of rents which they contributed to produce, so as to allow the defendant for all his improvements of which the plaintiff recovers the benefit. Johnson v. Futch, 57 Miss. 73, 1879 Miss. LEXIS 16 (Miss. 1879).

If the defendant omit to claim and establish the value of improvements, he cannot get relief in equity. Gaines v. Kennedy, 53 Miss. 103, 1876 Miss. LEXIS 42 (Miss. 1876).

In ejectment the defendant is entitled to pay for all improvements not ornamental in their character. The notice with the plea, stating the nature and value of the improvements, was sufficiently definite. Wilson v. Williams' Heirs, 52 Miss. 487, 1876 Miss. LEXIS 245 (Miss. 1876).

3. —Good faith.

Where taxpayer notified patentee that he had no title because of insufficiency of description in assessment roll and list of lands struck off, patentee made further improvements at his peril, and could not recover therefor on cancellation of his title. Brown v. Womack, 181 Miss. 66, 178 So. 785, 1938 Miss. LEXIS 52 (Miss. 1938).

“Good faith” of a purchaser of land, as used in statute allowing compensation for improvements made by such purchaser, is not used in the technical sense applied to conveyances, but means only that purchase money was genuinely paid without any knowledge or suspicion of fraud, either by purchaser or vendor. Brunt v. McLaurin, 178 Miss. 86, 172 So. 309, 1937 Miss. LEXIS 181 (Miss. 1937).

Purchaser held entitled under statute to value of house built during his possession of land in good faith belief that he had full title, as against heirs of wife of his remote grantor who owned a half interest, irrespective of his constructive notice of their rights by recorded deed in the chain of title. Brunt v. McLaurin, 178 Miss. 86, 172 So. 309, 1937 Miss. LEXIS 181 (Miss. 1937).

Where defendants claimed title to the land sued for, not only through complainants’ ancestor, but chiefly through the purchaser of land at a tax sale, without actual or constructive notice of a prior deed from such purchaser to another through whom complainants also claimed, defendants were entitled to a sum expended for improvements upon decreeing title to be in complainants. Tinnin v. Brown, 98 Miss. 378, 53 So. 780, 1910 Miss. LEXIS 74 (Miss. 1910).

A defendant in ejectment cannot claim for improvements unless, when he placed them on the land, he was claiming under some deed or contract of purchase made or acquired in good faith. It is not sufficient that at the time he honestly expected the owner, whose title he recognized, would eventually give him the land. Thomas v. Thomas, 69 Miss. 564, 13 So. 666, 1891 Miss. LEXIS 139 (Miss. 1891).

If defendant know the facts but mistake the law, he is not, in case the law be against him, a bona fide purchaser. Holmes v. McGee, 64 Miss. 129, 8 So. 169, 1886 Miss. LEXIS 29 (Miss. 1886).

The bona fide possessor of lands entitled to improvements is one who not only supposes himself to be the true owner, but who is ignorant that his title is contested by another claiming a better right. The want of good faith cannot be inferred merely because the defect of title could have been ascertained by an examination of the records. Cole v. Johnson, 53 Miss. 94, 1876 Miss. LEXIS 41 (Miss. 1876); Gaines v. Kennedy, 53 Miss. 103, 1876 Miss. LEXIS 42 (Miss. 1876); Emrich v. Ireland, 55 Miss. 390, 1877 Miss. LEXIS 148 (Miss. 1877); Citizens' Bank v. Costanera, 62 Miss. 825, 1885 Miss. LEXIS 156 (Miss. 1885).

4. Setting off improvements and mesne profits.

In suit to cancel tax title to land, evidence held to support decree awarding plaintiff rents for part of years defendant had possession, and setting off defendant’s improvement against rents of remaining years. Brown v. Womack, 181 Miss. 66, 178 So. 785, 1938 Miss. LEXIS 52 (Miss. 1938).

The effect of this section [Code 1942, § 825] is to require the jury to find in favor of a successful plaintiff in ejectment the amount of rents and profits, and, as against this, in favor of defendant, the value of improvements and taxes, in all cases where the declaration demands mesne profits or where the defendant claims for improvements and taxes. The assertion of such claim by either party necessarily involves the whole matter of the accounting as provided for in this section. Gillum v. Case, 71 Miss. 848, 16 So. 236, 1894 Miss. LEXIS 36 (Miss. 1894).

In ejectment for a tract of land, only a portion of which the defendant had improved, the jury, in assessing mesne profits and the value of the improvements, may deal with the entire tract together, although the defendant claims the improved part under separate conveyance. Johnson v. Futch, 57 Miss. 73, 1879 Miss. LEXIS 16 (Miss. 1879).

RESEARCH REFERENCES

ALR.

Compensation for improvements made or placed on premises of another by mistake. 57 A.L.R.2d 263.

Private improvement of land dedicated but not used as street as estopping public rights. 36 A.L.R.4th 625.

Am. Jur.

25 Am. Jur. 2d, Ejectment §§ 49- 52.

CJS.

28A C.J.S., Ejectment §§ 226 et seq.

§ 11-19-97. How improvements estimated and judgment therefor.

The jury shall find the actual cash value of such improvements and the amount of taxes paid, the value of the mesne profits and damages, and the actual cash value of the land without the improvements. Where the value of the improvements and taxes exceed the value of the mesne profits and damages, the defendant shall have a lien upon the land for the difference between the value of the mesne profits and the value of the improvements and taxes so found, and execution shall not issue in favor of the plaintiff until he shall have paid the amount so due to the defendant. Unless the plaintiff, within three months after the rendition of the verdict, pay the amount so due, the defendant may pay to the plaintiff the assessed value of the land with interest from the date of the verdict, and pay the costs of the suit, and thereupon the execution of the judgment for the recovery of the land shall be perpetually stayed. If the defendant fail to pay to the plaintiff the value of the land so assessed, with interest and costs of suit, within three months after the expiration of the time allowed the plaintiff for making payment, an execution shall issue for the sale of the land recovered in the ejectment.

HISTORY: Codes, Hutchinson’s 1848, ch. 59, art. 13 (3); 1857, ch. 55, art. 20; 1871, § 1557; 1880, § 2512; 1892, § 1674; 1906, § 1849; Hemingway’s 1917, § 1482; 1930, § 1475; 1942, § 826.

Cross References —

Liens generally, see §85-7-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

If a defendant in ejectment be a purchaser for value in good faith and have placed valuable permanent, and not ornamental, improvement on the premises, he can obtain adequate relief on account of said improvements in the suit at law. Demourelle v. Piazza, 77 Miss. 433, 27 So. 623, 1899 Miss. LEXIS 93 (Miss. 1899).

Although a plaintiff in ejectment fails to demand or prove mesne profits and rents, if the defendant pleads and is allowed for improvements and pays plaintiff the value of the land, without the improvement as assessed, the latter cannot afterward resort to an independent action to recover of defendant mesne profits. Gillum v. Case, 71 Miss. 848, 16 So. 236, 1894 Miss. LEXIS 36 (Miss. 1894).

The remainderman cannot recover mesne profits which accrued during the particular estate and the owner of the particular estate is not entitled to compensation for improvements made during his term. Pass v. McLendon, 62 Miss. 580, 1885 Miss. LEXIS 112 (Miss. 1885).

The value of improvements should be assessed on a basis coextensive in time with the estimate of rents and profits, so as to allow the defendant for all of his improvements of which the plaintiff recovers the benefit. Johnson v. Futch, 57 Miss. 73, 1879 Miss. LEXIS 16 (Miss. 1879).

If the suit be for a tract, only a portion of which the defendants have improved, the jury may, in stating the account, deal with the entire tract together, although the defendant claim the improved portion under a separate deed. Johnson v. Futch, 57 Miss. 73, 1879 Miss. LEXIS 16 (Miss. 1879).

The plaintiff, if entitled to recover the premises, should be allowed the rents of the property as improved. Miller v. Ingram, 56 Miss. 510, 1879 Miss. LEXIS 155 (Miss. 1879).

Where the improvements have been destroyed by a casualty, and the defendant is denied compensation therefor on that account, the amount of the mesne profits or rent which plaintiff may recover is the reasonable value of the rent of the premises without such improvement. Nixon v. Porter, 38 Miss. 401, 1860 Miss. LEXIS 13 (Miss. 1860).

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. 2d, Ejectment § 52.

41 Am. Jur. 2d, Improvements §§ 18 et seq.

CJS.

28A C.J.S., Ejectment §§ 235, 248, 249, 250, 251 et seq.

§ 11-19-99. How proceeds divided in case of sale.

The proceeds of the sale, after payment of costs, shall be divided between the plaintiff and the defendant in proportion to the sums due them respectively as found by the verdict.

HISTORY: Codes, 1857, ch. 55, art. 20; 1871, § 1557; 1880, § 2512; 1892, § 1675; 1906, § 1850; Hemingway’s 1917, § 1483; 1930, § 1476; 1942, § 827.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-19-101. Reversioner or remainderman to have appeal.

If a tenant for life be impleaded, and judgment given against him for the lands or tenements, then the person to whom the reversion or remainder belongs at the time of such judgment, his heirs or successors, may have an appeal as well in the lifetime of the tenant as after his death. If the judgment be reversed, the tenant, if living, shall be restored to the possession of the lands or tenements, and the party prosecuting the appeal shall be entitled to the arrearages of rent for the same. If the tenant be dead at the time of judgment given on the appeal, then restitution of the lands or tenements shall be made to the party prosecuting the appeal, together with the arrearages of rent. If the party prosecuting the appeal allege that the judgment first obtained against the tenant was by covin or assent, then restitution shall be made to the party prosecuting such appeal with arrearages of rent, although the tenant be living; but in such case the tenant may have a scire facias against the party appealing if he deny and traverse the covin or assent, but not otherwise.

HISTORY: Codes, 1880, § 2518; 1892, § 1676; 1906 § 1851; Hemingway’s 1917, § 1484; 1930, § 1477; 1942, § 828.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

CJS.

28A C.J.S., Ejectment § 221.

§ 11-19-103. Judgment as res adjudicata.

A judgment in an action of ejectment shall be conclusive as to the right of possession established upon the party against whom it is recovered, and upon all persons claiming from, through, or under such party, by title arising after the commencement of the action; but if any person against whom such judgment is recovered shall be, at the time of its recovery, an infant or person of unsound mind, the judgment shall not be a bar to an action commenced by such person, or any one claiming by inheritance from, through, or under him, within three years after the removal of his disability.

HISTORY: Codes, 1857, ch. 55, art. 32; 1871, § 1569; 1880, § 2513; 1892, § 1677; 1906, § 1852; Hemingway’s 1917, § 1485; 1930, § 1478; 1942, § 829.

Cross References —

Definition of “infant”, see §1-3-21.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Owner, not made party to and not having notice of an action in ejectment against a tenant of a tenant, is not affected by the judgment. Melsheimer v. McKnight, 92 Miss. 386, 46 So. 827, 1908 Miss. LEXIS 250 (Miss. 1908).

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. 2d, Ejectment § 47.

§ 11-19-105. Record may be recorded as a deed.

A certified copy of the complaint, the writ, the answer or other defense, if any, and the judgments in an ejectment suit may be recorded, without acknowledgment by anyone, in the proper record of conveyances of land in the county in which the land is situated; and the same shall be indexed as a deed from the unsuccessful party to the party in whose favor the final judgment is rendered.

HISTORY: Codes, 1892, § 1678; 1906, § 1853; Hemingway’s 1917, § 1486; 1930, § 1479; 1942, § 830; Laws, 1991, ch. 573, § 47, eff from and after July 1, 1991.

Cross References —

Recording of instruments, see §89-5-1.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Jurisdiction respecting conclusive adjudication of land titles rests alone with circuit and chancery courts, and to limited extent with county courts. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Chapter 21. Partition of Property

Realty

§ 11-21-1. Partition by agreement and by arbitration; partition of homestead property.

  1. Partition of land held by adult joint tenants, tenants in common, and coparceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties. They may also bind themselves by written agreement to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive between the parties, unless made or procured by fraud.
  2. Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.

HISTORY: Codes, 1857, ch. 36, art. 48; 1871, § 1839; 1880, § 2552; 1892, § 3096; 1906, § 3520; Hemingway’s 1917, § 2832; 1930, § 2919; 1942, § 960; Laws, 2009, ch. 517, § 1, eff from and after July 1, 2009.

Editor’s Notes —

Laws of 2009, ch. 517, § 2, provides:

“SECTION 2. This act shall take effect and be in force from and after July 1, 2009, and shall apply to all cases pending or filed on or after July 1, 2009.”

Amendment Notes —

The 2009 amendment added (2); and designated the former provisions of the section as (1).

Cross References —

Who may submit to arbitration, see §11-15-1.

Creation of estates in two or more persons, see §89-1-7.

Partition with respect to condominiums, see §§89-9-15,89-9-35,89-9-37.

JUDICIAL DECISIONS

1. In general.

2. Partition by chancery decree.

3. Public policy.

1. In general.

Family settlements are favored by the courts, and generally will be permitted to stand even though based on mistake of law or fact where there is absence of conduct otherwise inequitable. Strong v. Cowsen, 197 Miss. 282, 19 So. 2d 813, 1944 Miss. LEXIS 298 (Miss. 1944).

Deed of partition executed by heirs of legitimate son of former owner in favor of heirs of illegitimate son pursuant to agreement compromising and settling the disputed claims of the heirs to avoid litigation, the parties at the time of the deed’s execution not knowing the true facts, was not subject to cancelation on the ground of mutual mistake. Strong v. Cowsen, 197 Miss. 282, 19 So. 2d 813, 1944 Miss. LEXIS 298 (Miss. 1944).

Life tenants may divide their life estates and remaindermen may accept the partition made. Leflore v. Flowers, 117 Miss. 682, 78 So. 513 (Miss. 1918).

Tenants in common cannot make a partition by agreement binding on a judgment creditor whose lien has attached against the interest of one of them. Simmons v. Gordon, 98 Miss. 316, 53 So. 623, 1910 Miss. LEXIS 64 (Miss. 1910).

2. Partition by chancery decree.

Section relation to partition of land prohibits the partition of spousal homestead property by chancery decree because the phrase “homestead property exempt from execution” is not intended to bring specific limitations on creditors’ rights to other statutes. Therefore, a chancery court could not enter a partition of land owned by spouses as joint tenants with a right of survivorship. Noone v. Noone, 127 So.3d 193, 2013 Miss. LEXIS 647 (Miss. 2013).

3. Public policy.

Mississippi Supreme Court did not have the power to declare that section dealing with a chancery court’s lack of power to enter a partition by order for spouses was against the public policy favoring the alienability of land because it only had the power of judicial review. Noone v. Noone, 127 So.3d 193, 2013 Miss. LEXIS 647 (Miss. 2013).

RESEARCH REFERENCES

ALR.

Right to partition of overriding royalty interest in oil and gas leasehold. 58 A.L.R.3d 1052.

Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty. 92 A.L.R.3d 473.

Homestead Right of Cotenant as Affecting Partition. 83 A.L.R.6th 605.

Am. Jur.

59A Am. Jur. 2d, Partition §§ 17- 26.

14 Am. Jur. Legal Forms 2d, Partition, §§ 193:19-193:38 (Documents providing for and affecting voluntary partition).

CJS.

68 C.J.S., Partition §§ 10-18.

§ 11-21-3. Partition by decree of chancery court.

Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five (5), may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.

However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, remaindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as plaintiffs.

HISTORY: Codes, 1857, ch. 36, art. 48; 1871, § 1811; 1880, § 2553; 1892, § 3097; 1906, § 3521; Hemingway’s 1917, § 2833; 1930, § 2920; 1942, § 961; Laws, 1946, ch. 317, § 1; Laws, 1991, ch. 573, § 48, eff from and after July 1, 1991.

Cross References —

Jurisdiction of the chancery court, see §9-5-81.

Rule that exempt property of a decedent is not subject to partition in certain cases, see §91-1-23.

Where a person entitled to a distributive share of a deceased’s estate may compel distribution, see §91-7-303.

JUDICIAL DECISIONS

1. In general.

2. Title or interest necessary; parties.

3. Lands of decedent.

4. Lands subject to encumbrance, homestead or dower interest.

5. Jurisdiction and venue.

1. In general.

Denial of the husband’s request to partition real property jointly titled to him and his former wife was appropriate because the absence of a termination provision meant that no termination of the terms was intended. Therefore, partitioning the property would have been in violation of the intent of the Agreement and Property Settlement between the parties. Hawkins v. Hawkins, 45 So.3d 1212, 2010 Miss. App. LEXIS 140 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 549 (Miss. 2010).

Partition under Miss. Code Ann. §11-21-3 was granted to a former wife where a former husband conveyed his one-half interest in a martial residence to his new wife, but retained a life estate; this use and occupancy of the property was contrary to the terms of the divorce decree. Mosby v. Mosby, 962 So. 2d 119, 2007 Miss. App. LEXIS 490 (Miss. Ct. App. 2007).

Mere sentimental attachment to ancestral home did not render the property incapable of partition in kind, or take precedence over the right of a cotenant to have his share set aside where the real property was clearly subject to partition in kind. Mobley v. Mobley, 827 So. 2d 714, 2002 Miss. App. LEXIS 529 (Miss. Ct. App. 2002).

Wife’s prior unsuccessful divorce action against her husband did not bar her subsequent action for statutory partition of the parties’ real and personal property pursuant to Miss. Code Ann. §§11-21-3 and11-21-71; doctrine of res judicata did not apply as the divorce and the partition action did not share identity of cause of action. Miller v. Miller, 838 So. 2d 295, 2002 Miss. App. LEXIS 434 (Miss. Ct. App. 2002), cert. denied, 837 So. 2d 771, 2003 Miss. App. LEXIS 167 (Miss. Ct. App. 2003).

Chancellor abused his discretion in attempting to fashion a unique remedy to sever a cotenancy, ignoring statutes of the state defining the only lawful method available to accomplish that purpose the right of partition being an absolute right of a tenant in common. Murphree v. Cook, 822 So. 2d 1092, 2002 Miss. App. LEXIS 180 (Miss. Ct. App. 2002).

The right to partition property is absolute with the exception of the limitation placed on homestead property. Cheeks v. Herrington, 523 So. 2d 1033, 1988 Miss. LEXIS 211 (Miss. 1988).

The defense of laches was unavailable in an action for partition of property where there was no “ouster” of the co-tenant seeking partition. Cheeks v. Herrington, 523 So. 2d 1033, 1988 Miss. LEXIS 211 (Miss. 1988).

Question of whether party asserting interest in property, which had been inherited through Mississippi laws of descent and distribution, should be prohibited in equity from doing so was not appropriate matter for decision on motion for summary judgment, where heir at law did not intend to relinquish any inherited rights by signing final estate decree and signed for sole purpose of settling will contest between children and widow, where evidence existed that persons taking under estate decree also knew of and recognized interest of heir at law in property, and he took action to assert his interest in that property. Sumrall v. Doggett, 511 So. 2d 908, 1987 Miss. LEXIS 2612 (Miss. 1987).

Right of partition is subject to paramount authority and responsibility of Chancery Court to make orders which are necessary and appropriate for care, custody, and maintenance of children of marriage; claim of husband that partition through judicial sale should have been granted instead of awarding wife exclusive use of homestead property was rejected. Regan v. Regan, 507 So. 2d 54, 1987 Miss. LEXIS 2441 (Miss. 1987), overruled, Tramel v. Tramel, 740 So. 2d 286, 1999 Miss. LEXIS 252 (Miss. 1999). But see Tramel v. Tramel, 740 So. 2d 286, 1999 Miss. LEXIS 252 (Miss. 1999).

Hardship is not defense to right of partition. Daughtrey v. Daughtrey, 474 So. 2d 598, 1985 Miss. LEXIS 2454 (Miss. 1985).

A former husband was properly precluded from partitioning certain real estate owned by his ex-wife and him as tenants in common, where the parties’ settlement agreement gave the ex-wife the right to occupy the residence situated on the real estate, and such proposed partition might have had the effect of annulling the ex-wife’s right to so occupy the residence. Rushing v. Rushing, 414 So. 2d 429, 1982 Miss. LEXIS 2025 (Miss. 1982).

A divorced wife was not entitled to partition of the former marital home where the property agreement entered into by the parties had provided that the husband would have the exclusive use, possession and control of the home. Weeks v. Weeks, 403 So. 2d 148, 1981 Miss. LEXIS 2156 (Miss. 1981).

Under the rule that all that is necessary for a partition is that the parties be co-tenants of whatever to be partitioned, a prior decree of divorce granting the wife exclusive use of the parties’ former marital home did not create a property right in the ex-wife which would defeat her own partition action under this section, since the ex-wife had the same status respecting the property after the divorce as she had prior to the divorce. Blackmon v. Blackmon, 350 So. 2d 44, 1977 Miss. LEXIS 2207 (Miss. 1977).

Prior to the 1946 amendment, partition was a possessory proceeding only, and the court could not adjudicate rights of owners of future interests. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Bill which is sufficient in substance and contains prayer for general relief in addition to special prayer that property be sold for partition is sufficient to support decree for partition in kind. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

Joint interests of tenants in common in a freehold may not be sold for division if it can be partitioned in kind. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

The burden of establishing the non-susceptibility of joint interests in a freeholder to partition in kind is upon the complainant seeking partition by sale. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

Whether it is physically possible or economically practicable or whether it will better promote the interests of all parties to decree a partition by sale, depends upon the facts in any particular case. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

The generality that mineral estates may not be divided in kind may not be determined by judicial notice. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

The test of feasibility of division in kind of mineral interests held by tenants in common should relate not to the difficulty of ascertainment of that which is speculative, but rather to the practicability of division of that which is apparent. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

Cross-bill seeking partition of personalty and partnership accounting was germane to original bill for partition of specific lands. Barry v. Mattocks, 156 Miss. 424, 125 So. 554, 1930 Miss. LEXIS 143 (Miss. 1930).

Suit to correct erroneous boundaries, due to mistake unknown to all parties, is an original suit giving equity power to correct mistake where no innocent party will suffer, and is not a bill of review. Brown v. Wesson, 114 Miss. 216, 74 So. 831, 1917 Miss. LEXIS 23 (Miss. 1917).

Partition sale is statutory and not dependent on common law or equity. Forest Product & Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279, 1914 Miss. LEXIS 154 (Miss. 1914).

Partition does not affect rights of remaindermen. Lawson v. Bonner, 88 Miss. 235, 40 So. 488, 1906 Miss. LEXIS 113 (Miss. 1906).

Interest of remaindermen, made party to partition suit, should not be taxed with any costs of proceedings. Lawson v. Bonner, 88 Miss. 235, 40 So. 488, 1906 Miss. LEXIS 113 (Miss. 1906).

Decree for partition is interlocutory and may be modified or reversed any time before final decision. Sweatman v. Dean, 86 Miss. 641, 38 So. 231, 1905 Miss. LEXIS 16 (Miss. 1905).

A demand for rents may be joined in a bill for partition. Medford v. Frazier, 58 Miss. 241, 1880 Miss. LEXIS 115 (Miss. 1880).

2. Title or interest necessary; parties.

Chancellor did not erroneously order the sale of land held in the name of a closely held corporation because the corporation’s shareholders consented to the order. Scafidi v. Hille, 180 So.3d 634, 2015 Miss. LEXIS 603 (Miss. 2015).

Section relation to partition of land prohibits the partition of spousal homestead property by chancery decree because the phrase “homestead property exempt from execution” is not intended to bring specific limitations on creditors’ rights to other statutes. Therefore, a chancery court could not enter a partition of land owned by spouses as joint tenants with a right of survivorship. Noone v. Noone, 127 So.3d 193, 2013 Miss. LEXIS 647 (Miss. 2013).

This section allows the joinder of a life estate and the remaindermen to create an estate authorized to institute a suit in partition. Banks v. Banks, 367 So. 2d 1364, 1979 Miss. LEXIS 2232 (Miss. 1979).

Owners of future interests are subject to partition if made parties defendant by persons having possessory estates; and unborn takers of future interests are reached by virtual representation. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

The right of the devisee of an interest in land from his father to seek a partition by sale and division of proceeds is not affected by the fact that he has also an interest under his mother’s will which contained a provision that the property may be sold only by mutual consent of the interested parties. Holliday v. Hedge, 243 Miss. 707, 139 So. 2d 866, 1962 Miss. LEXIS 396 (Miss. 1962).

Owners of an undivided two-thirds interest in land can obtain a partition in kind and so acquire a fee simple title to the parts allotted to them free from the claims of a life tenant in the other one-third interest and contingent remaindermen who might claim such one-third interest, provided that such claimants are made parties to the proceeding. Copeland v. West, 202 Miss. 106, 30 So. 2d 610, 1947 Miss. LEXIS 246 (Miss. 1947).

A deed conveying an undivided interest in a residence and reserving to the grantor the right during his lifetime to live on the premises with the grantee, free of rent, which reservation was allegedly violated by the grantee, would not entitle the grantor to partition the property under this section [Code 1942, § 961]. Hall v. Scott, 201 Miss. 540, 29 So. 2d 640, 1947 Miss. LEXIS 417 (Miss. 1947).

Under will devising land to wife and son to share and share alike with provision that if son should die before reaching the age of twenty-one his share should go to the heirs of testator’s body then living, widow was entitled to partition of a one-half interest therein in fee simple absolute, and the remaining half interest would be set aside under the partition in the same legal aspect and with the same incidents as attached under the will, without adjudicating the rights of parties who may ultimately become vested with an unqualified fee thereto. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 263, 1945 Miss. LEXIS 217 (Miss. 1945).

Where trusts under a will directing trustees to pay annuity to decedent’s widow during her life, to care for an uncle until death and burial, and to divide estate among designated beneficiaries upon liquidation, had not been terminated and the trustees were still in possession, one of the designated beneficiaries was neither a tenant in common nor in possession, nor had the right to possession, and consequently could not maintain a suit to partition lands comprising part of the estate. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

Bill by one of several designated beneficiaries seeking partition of lands comprising part of the estate, under will directing trustees to pay an annuity to decedent’s widow during her lifetime, to care for an uncle until death and burial, and to divide the estate among designated beneficiaries upon liquidation, where the trust had not been terminated and the trustees were still in possession, was multifarious insofar as the trustees were concerned, inasmuch as the trustees were not interested in the partition. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

Persons owning undivided interests in the minerals in land, the surface of which was owned by one of such persons, were tenants in common of a joint interest in a freehold within the meaning of this section [Code 1942, § 961]. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

One of the ingredients of a cotenant’s title to minerals is the speculative chance which is an acknowledged asset of ownership. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

Where one of several persons owned the surface to land and half the undivided minerals underlying it and the other half of the undivided interest in the minerals was owned by the others, and upon action for partition by sale of the mineral interests the offer was made to combine the interests of the latter into a single unit for the purpose of division in kind, division in kind was feasible where any division so effected would result in the allotment of units of a size to be usable or merchantable. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

Undivided interests of several persons in minerals underlying land were capable of division in kind, and it was reversible error to hold that it could only be partitioned by sale. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So. 2d 196, 1944 Miss. LEXIS 336 (Miss. 1944).

Where testator devised residue of his estate to his widow and minor son, with the provision that if such son should die before he reached 21 years of age, his share should be divided among the heirs of testator’s body then living, partition in kind of various interests in certain lands owned by testator at the time of his death would not violate the “reversion and remainder” provision of this section [Code 1942, § 961], since the widow and her son are tenants in common in possession during the period of his minority, and if he should live beyond 21 years they would be tenants in common of the fee in possession, and if he should die before that time, the heirs of the body of the testator then living would be tenants in common with the widow, there being no right of reversion or remainder involved. Lynch v. Lynch, 196 Miss. 276, 17 So. 2d 195, 1944 Miss. LEXIS 186 (Miss. 1944).

Where a trustee under a trust in favor of an incompetent tenant in common was to expend as much of the income and principal as was necessary for the support and maintenance of the incompetent, and was empowered to sell the undivided interest of the incompetent during his lifetime, such trust did not provide for a life estate only, so as to preclude a partition sale without the trustee’s consent; and the other tenants in common were entitled to have the property sold in its entirety in view of demurrers admitting that the property was not subject to partition in kind. Beard v. Rosenzweig, 190 Miss. 325, 200 So. 261, 1941 Miss. LEXIS 56 (Miss. 1941).

Under this section [Code 1942, § 961] the heirs of the owner of a half interest in land were entitled to a partition of the property which they inherited from such owner, notwithstanding that a co-owner died leaving a widow and children in occupation of the property, since the exemption from partition under Code of 1930, § 1412, applied only to the interest in the property of the deceased co-owner owned by him at the time of his death. Solomon v. Solomon, 187 Miss. 22, 192 So. 10, 1939 Miss. LEXIS 86 (Miss. 1939).

Tenants in common of clay, oil and mineral deposits may have interest partitioned, by sale for division of proceeds. Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739, 1927 Miss. LEXIS 72 (Miss. 1927).

Minor with right of redemption from tax sale may in partition have interest sold if necessary to raise funds for redemption. Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865, 1927 Miss. LEXIS 132 (Miss. 1927).

Right to bring partition suit depends on complainant’s title and not weakness of defendant’s title. Mallory v. Walton, 119 Miss. 396, 81 So. 113, 1919 Miss. LEXIS 14 (Miss. 1919).

Beneficiaries under testamentary trust entitled to partition where death of trustee had extinguished power to sell. Chandler v. Chandler, 111 Miss. 525, 71 So. 811, 1916 Miss. LEXIS 333 (Miss. 1916).

Heirs of tenant in common may sue for partition of land, including right of way of railroad. Hill v. Woodward, 100 Miss. 879, 57 So. 294, 1911 Miss. LEXIS 89 (Miss. 1911).

Defendant in partition claiming half interest as partner of complainant in whose name title stands, need not make payment into court where he offers to pay for his interest. Peirce v. Halsell, 90 Miss. 171, 43 So. 83, 1907 Miss. LEXIS 43 (Miss. 1907).

Without showing title complainant cannot succeed. Goff v. Cole, 71 Miss. 46, 13 So. 870, 1893 Miss. LEXIS 140 (Miss. 1893).

It is not essential to the right of partition that the co-tenants should have equal estates. All that is necessary is that they shall be co-tenants of what is to be partitioned. Black v. Washington, 65 Miss. 60, 3 So. 140, 1887 Miss. LEXIS 15 (Miss. 1887); Lynch v. Lynch, 196 Miss. 276, 17 So. 2d 195, 1944 Miss. LEXIS 186 (Miss. 1944).

The owner in fee simple of one part of a tract of land and of a reversion in the other part, in which other part another person owns a particular estate, the two parts being ascertained, is not entitled to a partition. Belew v. Jones, 56 Miss. 342, 1879 Miss. LEXIS 126 (Miss. 1879).

3. Lands of decedent.

Partition of land of deceased person may be had during pendency of administration of his estate and prior to expiration of period for probating of claims, as possession, or right of possession, in tenants in common gives absolute and unconditional right to partition, and sufficiency or insufficiency of personal property to pay debts due by estate is immaterial, although lands remain liable for debts, if any, which personal property is insufficient to pay. Barnes v. Rogers, 206 Miss. 887, 41 So. 2d 58, 1949 Miss. LEXIS 311 (Miss. 1949).

Land descended to the heirs of a decedent as tenants in common under this section [Code 1942, § 961] may be partitioned before the estate of the decedent is fully administered or the debts against it probated or paid. Garrett v. Colvin, 77 Miss. 408, 26 So. 963, 1899 Miss. LEXIS 64 (Miss. 1899).

In a proceeding to partition the lands of a decedent and to recover against executors de son tort the rights of the parties in interest should be established as to both the real and personal property per stirpes and not per capita. Weaver v. Williams, 75 Miss. 945, 23 So. 649, 1898 Miss. LEXIS 45 (Miss. 1898).

4. Lands subject to encumbrance, homestead or dower interest.

Upon remarriage of a widow, her rights under §91-1-23, which prevents partition of homestead property, are terminated and the entire property becomes subject to partition by any and all of the other joint owners. Cheeks v. Herrington, 523 So. 2d 1033, 1988 Miss. LEXIS 211 (Miss. 1988).

In view of the provisions of §§11-21-3,93-3-1 and93-3-3, §89-1-29 did not preclude a wife, who held real property as joint tenant with husband from whom she was separated but not divorced, from maintaining an action to partition the property, notwithstanding that husband continued to reside on the property and claimed it as his homestead. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

A wife, who held real property as joint tenant with husband from whom she was separated but not divorced, could maintain an action to partition the property, notwithstanding that husband continued to reside on the property and claimed it as his homestead. Trigg v. Trigg, 498 So. 2d 334, 1986 Miss. LEXIS 2779 (Miss. 1986).

A divorced husband had no right to partition of the former marital residence where the divorce decree had awarded to the wife the exclusive use and possession of the property involved while she remained unmarried. Sartin v. Sartin, 405 So. 2d 84, 1981 Miss. LEXIS 2230 (Miss. 1981).

Where property is subject to partition during the lives of cotenants-husbands, the right to partition is not enjoined by the deaths of the cotenants-husbands and the survival of their wives; however, the widows should retain their houses as improvements on the land, if possible, or, in the alternative, if it is not feasible to partition the land to allow the widows to receive their respective houses as improvements, then an accounting should be had as to such improvements. Carter v. Brewton, 396 So. 2d 617, 1981 Miss. LEXIS 2055 (Miss. 1981).

In a proceeding under §11-21-3 for partition of certain real estate and farm lands owned by the petitioner and her former husband as joint tenants, with the right of survivorship, the chancery court erred in dismissing the petition where the divorce decree made no attempt to grant to either party an estate for life or for years or any other estate or title in derogation or diminuition of the title already vested in them respectively as joint tenants. The provision in the decree that the husband might farm a portion of the land was ineffectual to deprive the petitioner of her vested interest or to restrict the exercise of her rights with respect to the same; §27-33-3, which provides for the exemption of homesteads from certain taxes, does not affect the right of a cotenant or tenant in common to partite property commonly or jointly owned. Welborn v. Welborn, 386 So. 2d 722, 1980 Miss. LEXIS 2054 (Miss. 1980).

Where the former husband lost his right to occupy the marital home under a divorce decree giving the wife the right to exclusive use of the home, the husband lost his homestead rights under Code 1972 §§27-33-3 &85-3-21, so that the husband thus held no homestead exemption on the property which could be used to defeat the former wife’s right to partition under Code 1972 §11-21-3; the existence of homestead rights in the former wife was irrelevant, since she waived them by bringing a suit for partition sale. Blackmon v. Blackmon, 350 So. 2d 44, 1977 Miss. LEXIS 2207 (Miss. 1977).

This section [Code 1942, § 961] was inapplicable where a widow of a landowner, who had died intestate leaving also a son and daughter, neither waived nor attempted to dispose of her rights by deed conveying her one-third interest therein to her son, reserving to herself a life estate in all the lands. Gresham v. Clark, 231 Miss. 206, 95 So. 2d 234, 1957 Miss. LEXIS 506 (Miss. 1957).

Decree confirming sale in partition of homestead land in which widow had a life estate should, on her objection, be vacated and cause dismissed. Talley v. Talley, 108 Miss. 84, 66 So. 328, 1914 Miss. LEXIS 172 (Miss. 1914).

Incumbrance on land does not prevent partition. Doran v. Beale, 106 Miss. 305, 63 So. 647, 1913 Miss. LEXIS 135 (Miss. 1913).

Children cannot have partition of exempt property of deceased father while occupied or used by widow, nor an accounting for the use. Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66, 1906 Miss. LEXIS 167 (Miss. 1906).

But the fact that dower has never been set apart will not wholly prevent partition; under a prayer for general relief the court will first set off the dower and then partition the balance of the tract. Davis v. Patty, 76 Miss. 753, 25 So. 662, 1899 Miss. LEXIS 13 (Miss. 1899).

There can be no valid partition or sale of land for division of proceeds under this section [Code 1942, § 961] while there exists an outstanding unassigned dower interest in the same. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482, 1896 Miss. LEXIS 189 (Miss. 1896); Ligon v. Spencer, 58 Miss. 37, 1880 Miss. LEXIS 88 (Miss. 1880); Fox v. Coon, 64 Miss. 465, 1 So. 629, 1886 Miss. LEXIS 91 (Miss. 1886); Wood v. Bryant, 68 Miss. 198, 8 So. 518, 1890 Miss. LEXIS 50 (Miss. 1890).

5. Jurisdiction and venue.

The court has jurisdiction in a suit to determine rights in the proceeds of property paid into the registry of the chancery court upon its purchase by the state, and to adjust the equities of the parties arising out of use and occupation, payment of taxes and cost of upkeep. Moorer v. Willis, 239 Miss. 118, 121 So. 2d 127, 1960 Miss. LEXIS 273 (Miss. 1960).

The chancery court has no jurisdiction of a petition to sell land for partition of proceeds of sale as to land described in the petition, order of sale and notice of sale, in which the petitioners have no interest whatsoever, and are not therefore tenants in common with the adjoining owners as to the surplus lands sought to be sold with their own land. Coers v. Williams, 221 Miss. 706, 74 So. 2d 836, 1954 Miss. LEXIS 583 (Miss. 1954).

Recital in decree that all parties interested in partition are made parties by proper process is conclusive of jurisdiction of court. Sweatman v. Dean, 86 Miss. 641, 38 So. 231, 1905 Miss. LEXIS 16 (Miss. 1905).

In partition suits, the venue is determined alone by this section [Code 1942, § 961].It is restrictive of the general statute on the subject of venue in chancery. This is true even if a sale be demanded. Nugent & McWillie v. Powell, 63 Miss. 99, 1885 Miss. LEXIS 23 (Miss. 1885).

RESEARCH REFERENCES

ALR.

Necessity and sufficiency of pleading in partition action to authorize incidental relief. 11 A.L.R.2d 1449.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Right to partition of overriding royalty interest in oil and gas leasehold. 58 A.L.R.3d 1052.

Lack of final settlement of intestate’s estate as affecting heir’s right to partition of realty. 92 A.L.R.3d 473.

Homestead Right of Cotenant as Affecting Partition. 83 A.L.R.6th 605.

Am. Jur.

59A Am. Jur. 2d, Partition §§ 27 et seq.

CJS.

68 C.J.S., Partition §§ 82 et seq.

Law Reviews.

1981 Mississippi Supreme Court Review – Property. 52 Miss. L. J. 463, June 1982.

§ 11-21-5. Parties to proceedings for partition.

Any of the parties in interest, whether infants or adults, may institute proceedings for the partition of lands or for a partition sale thereof, by judgment of court as herein provided. All persons in interest must be made parties except (a) in cases where a part of the freehold is owned by persons owning a life estate therein or a life tenancy therein subject to the rights of remaindermen or reversioners, then, in such event, it shall only be necessary that the person or persons owning or claiming a life estate or life tenancy therein be made parties; and (b) in cases where the partition is for the surface of the land only, it shall not be necessary that persons owning divided or undivided interests in the minerals in the land be made parties unless such persons also have an interest in the surface of the land. An infant, or person of unsound mind, may sue by next friend as in other cases; but if the infant, or non compos mentis, have a guardian, the guardian must appear as next friend, unless good cause to the contrary be shown. Where an infant or non compos is made a party defendant, the guardian, if any, of such infant or non compos shall also be made a party, whether the infant or non compos be resident or nonresident and whether the guardian be a resident or a nonresident; and the said guardian may appear and answer the complaint. The summons to the defendants, including the guardian aforesaid, shall be made pursuant to the Mississippi Rules of Civil Procedure. The word “guardian,” where used in this section, shall be held to apply also to all persons who, under the laws of any other state or country, stand in that relation whether known as curator, tutor, committee or conservator, or by whatever other name or title such person may be known.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2 (1); 1857, ch. 36, art. 48; 1871, § 1814; 1880, §§ 2556, 2557; 1892, § 3098; 1906, § 3522; Hemingway’s 1917, § 2834; 1930, § 2921; 1942, § 962; Laws, 1918, ch. 130; Laws, 1946, ch. 317, § 2; Laws, 1983, ch. 378, § 1; Laws, 1991, ch. 573, § 49, eff from and after July 1, 1991.

Editor’s Notes —

Laws of 1983, ch. 378, § 2, effective from and after July 1, 1983, provides as follows:

“SECTION 2. Nothing contained in this act shall be construed to affect any decree relating to the partition of land entered prior to the effective date of this act.”

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Executors or administrators.

3. Suing by next friend.

1. In general.

Chancery court properly partitioned the property at issue because accommodations appeared to have been made for the fair distribution of property between the three partited owners and the remaining cotenants, there was substantial evidence in the record to justify the chancellor’s division of the property, the complaint explained the interests devised in the will, the calculations, which were not in dispute, showed every descendant and devisee received their fair portion of the property according to the decedent’s will and the laws of intestate succession, and the statutory requirement of proof of title was fulfilled. Kohnke v. Tate, 270 So.3d 1076, 2018 Miss. App. LEXIS 499 (Miss. Ct. App. 2018).

Where decedent died intestate, and the surviving children entered into an agreement effectively creating a life estate for one sibling who remained on the farm, the trial court properly (1) applied contract interpretation rules, (2) found that the intent of the agreement was not to limit restraint on alienation only to time of execution of contract, and (3) held that the agreement was not an unreasonable restraint on alienation; thus, plaintiff’s partition action was dismissed. In re Estate of Harris v. Harris, 840 So. 2d 742, 2003 Miss. App. LEXIS 188 (Miss. Ct. App. 2003).

Former wife seeking judicial partition of property was denied partition action because she was unable to show her interest in property, where record title made husband sole grantee, deed naming wife as grantee contained erroneous description, and grantors in deed naming wife had no interest in land at time of alleged quit claim deed, thus vesting no interest in wife; additionally, adverse possession was not shown. Davis v. Davis, 508 So. 2d 1062, 1987 Miss. LEXIS 2527 (Miss. 1987).

In a suit to remove a cloud on title to land and for damages for slander of title, a defendant who had joined in a prayer for partition, and had consented to a partition decree, and who stated in open court that he was agreeable to the partition, was estopped to make any claim of title whatsoever to the lands involved in the partition. Phelps v. Clinkscales, 247 So. 2d 819, 1971 Miss. LEXIS 1458 (Miss. 1971).

Prior to the 1946 amendment, partition was a possessory proceeding only, and the court could not adjudicate rights of owners of future interests. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Owners of future interests are subject to partition if made parties defendant by persons having possessory estates; and unborn takers of future interests are reached by virtual representation. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

Husband of tenant in common owning undivided interest in land occupied by them as homestead is neither a necessary or proper party to suit for partition of land, and there is no need for any service of process upon him before issuance of writ of assistance on behalf of purchaser of land. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

The provisions in this section [Code 1942, § 962], requiring that all known living persons in interest be made parties, and the doctrine of virtual representation as to unborn contingent remaindermen constitute a workable plan which protects the constitutional rights of all parties and yet admits of present enjoyment and disposition of fee simple owners of property in common with others owning a lesser interest therein. Copeland v. West, 202 Miss. 106, 30 So. 2d 610, 1947 Miss. LEXIS 246 (Miss. 1947).

The very purpose of the amendment to the statute (Laws 1946, chapter 317, § 2) was to require that known living contingent remaindermen be made parties to the proceeding. Copeland v. West, 202 Miss. 106, 30 So. 2d 610, 1947 Miss. LEXIS 246 (Miss. 1947).

Contingent remaindermen are not bound by the proceedings unless made parties. Copeland v. West, 202 Miss. 106, 30 So. 2d 610, 1947 Miss. LEXIS 246 (Miss. 1947).

Court should have refused to proceed under bill for partition where all necessary parties to complete final decree were not before him. Wilson v. Wilson, 166 Miss. 369, 146 So. 855, 1933 Miss. LEXIS 358 (Miss. 1933).

Guardian ad litem of infant defendant in partition should not be made commissioner to make sale. Ponder v. Martin, 119 Miss. 156, 80 So. 388, 1918 Miss. LEXIS 11 (Miss. 1918).

Instrument combining contract for services of attorney, power of attorney, and security for the fee for services in securing property for an heir, did not entitle attorney to bring suit for partition against heir. Wright v. Bowers, 112 Miss. 516, 73 So. 568, 1916 Miss. LEXIS 140 (Miss. 1916).

Partition must be between joint-tenants, tenants in common or coparceners. White v. Lefoldt, 78 Miss. 173, 28 So. 818, 1900 Miss. LEXIS 87 (Miss. 1900).

All persons interested in the property should be made parties to a partition suit. Millsaps v. Shotwell, 76 Miss. 923, 25 So. 359, 1899 Miss. LEXIS 2 (Miss. 1899).

The tenant in dower was held entitled to a partition of the land owned by her deceased husband in co-tenancy, to enable her to have her dower assigned in his part. Hill v. Gregory, 56 Miss. 341, 1879 Miss. LEXIS 125 (Miss. 1879).

2. Executors or administrators.

Executor cannot sue to partition estate. Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193, 1907 Miss. LEXIS 11 (Miss. 1907).

Where executor made residuary devisee, and widow renounced will and took undivided one-half interest in land, they became tenants in common entitling executor to sue for partition. Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193, 1907 Miss. LEXIS 11 (Miss. 1907).

3. Suing by next friend.

A minor is not competent during minority to waive the requirement that he must sue by next friend. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

There is no discretion in the court to dispense with the requirement that a minor must sue by next friend when it is expressly imposed by statute in the particular proceeding, and particularly so when the estate and interests of minors are so seriously concerned as in a partition of their real property. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

A minor may not act as next friend to another minor. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

A minor whose disability of minority has been specially removed to the extent of dealing with her own property could not act as next friend to other minors in an ex parte judicial partition of their real property. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

Where the record in an ex parte judicial partition showed that minor parties therein were represented by a next friend who was also a minor, the decree therein was subject to collateral attack. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

Fraud between next friend of minors in partition suit and commissioner appointed to make sale and purchaser at sale is good cause for setting aside decree after minor comes of age; and any cause for setting aside decree between adults during term, and any cause calling for a reversal would amount to good cause for setting aside partition sale after infant comes of age. Dendy v. Commercial Bank & Trust Co., 143 Miss. 56, 108 So. 274, 1926 Miss. LEXIS 243 (Miss. 1926).

Grandfather who was next friend of plaintiff in partition suit, by purchasing the land at the commissioner’s sale, obtained a defective title apparent on the record and all parties claiming through him are chargeable with notice thereof. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

Duty of next friend is to protect rights of ward throughout partition suit and to prevent confirmation of sale if it violates or prejudices ward’s rights. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Spouse of living co-owner as party to partition action. 57 A.L.R.2d 1166.

Partition action where United States or state owns undivided interest in property. 59 A.L.R.2d 937.

Am. Jur.

51 Am. Jur. 2d, Life Tenants and Remaindermen §§ 14, 15, 104.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Form 1 (Petition or application by guardian of cotenant for order authorizing guardian’s consent to proposed partition of land by cotenants of ward).

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Form 3 (Order for hearing on guardian’s petition for leave to consent to partition of land and directing notice thereof).

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Forms 41 et seq. Judicial partition of estates of decedents, minors, and incompetent persons.

CJS.

68 C.J.S., Partition §§ 91 et seq.

§ 11-21-7. Proceedings same as in other cases; when ex parte petitions may be heard.

Except as otherwise provided herein, the proceedings for partition shall be instituted and conducted as other suits in chancery; and all ex parte petitions may be heard and determined by the chancellor in term time or in vacation.

HISTORY: Codes, 1871, § 1815; 1880, § 2558; 1892, § 3099; 1906, § 3523; Hemingway’s 1917, § 2835; 1930, § 2922; 1942, § 963; Laws, 1960, ch. 224.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Defendant in partition proceeding cannot claim for partition without filing and serving pleading stating claim and requesting relief from cross-defendant, as well as from original plaintiff. Johnson v. Franklin, 481 So. 2d 812, 1985 Miss. LEXIS 2331 (Miss. 1985).

Partition proceedings are conducted in accordance with Mississippi Rules of Civil Procedure. Johnson v. Franklin, 481 So. 2d 812, 1985 Miss. LEXIS 2331 (Miss. 1985).

In suit for partition of real property, bill alleging complainant owns undivided interest in the property under a will sufficiently shows that he holds as tenant in common and that tenants in common are in possession, or have right of possession, and bill is sufficient in substance to support decree of partition, since Code 1942, § 1284, only requires bill to contain statement of facts on which complainant seeks relief in ordinary and concise language. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

The court has the power and duty in partition proceedings to adjudicate and adjust all the equities between the parties and to that end a cross bill is available when necessary, to be dealt with as in other suits in chancery. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

Where the vendee of one of the parties to a judicial partition alleged and prayed in its cross bill to an action to declare such partition void because of the minority of some of the parties thereto, that the partition was valid, or, if not, that the minors had ratified it by their subsequent partition of the remainder of the land in pais, or, if mistaken therein, the vendee, as assignee, was entitled to its vendor’s undivided interest in the entire property and a partition thereof, and prayed for general relief, such allegations and prayer were sufficient to present and require action by the court as respects the vendee’s alternate contention. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

RESEARCH REFERENCES

ALR.

Burden of proof in partition suit as regards alleged prior voluntary partition of property. 1 A.L.R.2d 473.

Necessity and sufficiency of pleading in partition action to authorize incidental relief. 11 A.L.R.2d 1449.

Am. Jur.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Forms 11 et seq. (Judicial partition of real property).

§ 11-21-9. Controverted title and all equities disposed of.

If the title of the plaintiffs seeking partition or sale of land for a division shall be controverted, it shall not be necessary for the court to dismiss the complaint, but the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion encumbrances, if partition be made of land encumbered and it be deemed proper to do so. The court may adjust the equities between and determine all claims of the several cotenants, as well as the equities and claims of encumbrancers.

HISTORY: Codes, 1871, § 1817; 1880, § 2576; 1892, § 3101; 1906, § 3525; Hemingway’s 1917, § 2837; 1930, § 2923; 1942, § 964; Laws, 1991, ch. 573, § 50, eff from and after July 1, 1991.

Cross References —

Power of the chancery courts to confirm and quiet titles, generally, see §11-17-29.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Generally.

2. Rights of parties.

3. Title issue waived.

1. Generally.

Chancellor’s decision to partition the home was not an abuse of discretion, as the wife had paid the mortgage, taxes, and insurance on the home for the previous 12 years, the husband received the benefit of the appreciation of equity, and the husband did not provide any alternatives to the findings of the chancellor. Coleman v. Coleman, 196 So.3d 1050, 2016 Miss. App. LEXIS 12 (Miss. Ct. App.), cert. denied, 202 So.3d 614, 2016 Miss. LEXIS 306 (Miss. 2016).

Award of the entire purchase price of a home to one of the unmarried joint tenants (JT1) was appropriate given that the chancellor could adjust the equities and determine the claims of the joint tenants and the fact that JT1 had paid the entire purchase price for the home along with the cost of all utilities, insurance, club dues, and taxes while JT2 had paid nothing. Jones v. Graphia, 95 So.3d 751, 2012 Miss. App. LEXIS 493 (Miss. Ct. App. 2012).

Judicial estoppel precludes former wife from challenging former husband’s title to real property jointly owned by them where, in prior divorce litigation, wife swore that she and husband each owned one-half interest in property. Daughtrey v. Daughtrey, 474 So. 2d 598, 1985 Miss. LEXIS 2454 (Miss. 1985).

In a suit by a cotenant, against a cotenant, for accounting of proceeds received upon sale of timber, where in a previous partition suit the liability of cotenant to account was not adjudicated, although under the statute it could have been adjudicated, the decree in the partition suit was not res judicata. Van Zandt v. Van Zandt, 227 Miss. 528, 86 So. 2d 466, 1956 Miss. LEXIS 722 (Miss. 1956).

The court has the power and duty in partition proceedings to adjudicate and adjust all the equities between the parties and to that end a cross bill is available when necessary, to be dealt with as in other suits in chancery. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

Where chancery court confirmed commissioners’ report partitioning land and ordered accounting of rents and improvements, subsequent money decree adjudicating equities between parties held “final decree,” appeal from which brought up for review all preliminary and interlocutory decree, including decrees confirming report of commissioners on partition. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

Encumbrance on land will not prevent partition. Doran v. Beale, 106 Miss. 305, 63 So. 647, 1913 Miss. LEXIS 135 (Miss. 1913).

It is proper for the court in partition to decide all equities arising from a payment of a lien and taxes and a claim for use and occupation by one of the co-tenants. Walker v. Williams, 84 Miss. 392, 36 So. 450, 1904 Miss. LEXIS 52 (Miss. 1904).

Chancellor may determine complainant’s title as against life tenant and remainderman and award partition against only life tenant. Walker v. Williams, 84 Miss. 392, 36 So. 450, 1904 Miss. LEXIS 52 (Miss. 1904).

Under this section [Code 1942, § 964] the court has jurisdiction to adjudicate all conflicting claims or controversies between those properly joined as parties. This is true even where a defendant alleged to be a cotenant denies that he is such and asserts an adverse title in himself. Claughton v. Claughton, 70 Miss. 384, 12 So. 340, 1892 Miss. LEXIS 121 (Miss. 1892); Nugent & McWillie v. Powell, 63 Miss. 99, 1885 Miss. LEXIS 23 (Miss. 1885).

The statute does not extend to controversies other than between co-tenants. Strangers asserting adverse claims cannot be brought into the suit for partition and their titles canceled as clouds. Nugent & McWillie v. Powell, 63 Miss. 99, 1885 Miss. LEXIS 23 (Miss. 1885); Cooper v. Fox, 67 Miss. 237, 7 So. 342, 1889 Miss. LEXIS 76 (Miss. 1889).

2. Rights of parties.

Chancery court did not err in determining a sister was not entitled to recover a setoff for rent on a home she co-owned with her brother in which the brother lived because the sister had not previously sought rent from her brother when she was not living in the house, but the brother was entitled to a setoff for the house expenses the sister had not paid after she moved out; the sister had paid house expenses from the time she acquired the home with her brother until she moved out. Stennis v. Stennis, 109 So.3d 1107, 2013 Miss. App. LEXIS 111 (Miss. Ct. App. 2013).

Where real property had approximately 300 co-tenants and the property was partitioned by sale, it was not error to approve a contract of sale to a purchasing co-tenant and to split the proceeds from the sale in proportionate shares to the owners of the property. Cathey v. McPhail & Assocs., 989 So. 2d 494, 2008 Miss. App. LEXIS 514 (Miss. Ct. App. 2008).

Where the chancellor abused his discretion in attempting to fashion a unique remedy to sever a cotenancy by ignoring statutes of the state defining the only lawful method available to accomplish that purpose, the co-tenant seeking partition was entitled to one-half the sale proceeds increased by $198 for various adjustments for such matters as repairs, improvements, taxes, and mortgage payments. Murphree v. Cook, 822 So. 2d 1092, 2002 Miss. App. LEXIS 180 (Miss. Ct. App. 2002).

Because the chancellor in a partition action elected to assess the tenant-in-possession with one-half the rent value of the property for her occupancy of the co-tenant’s undivided one-half interest in it, the chancellor in effect called on the tenant-in-possession to pay for her exclusive use of the property; therefore, the co-tenant could not receive the full rent value of his half interest in the property while, at the same time, forcing the tenant-in-possession to pay the normal expenses of operating and maintaining the property. Murphree v. Cook, 2001 Miss. App. LEXIS 307 (Miss. Ct. App. July 31, 2001).

In partition proceedings it is admissible to seek an account for rents against co-tenants in possession. Jefcoat v. Powell, 235 Miss. 291, 108 So. 2d 868, 1959 Miss. LEXIS 429 (Miss. 1959).

Where vendee of one of the parties to a judicial partition alleged in its cross bill to an action to declare such partition void because of minority of some of the parties thereto, that the partition was valid, or, if not, that the minor parties thereto had ratified it by their subsequent partition of the remainder of the land in pais, or, if mistaken therein, the vendee, as assignee, was entitled to its vendor’s undivided interest in the entire property and a partition thereof, and prayed for general relief, such allegations and prayer were sufficient to present and require action by the court as respects the alternate contention of the vendee. Prudential Ins. Co. v. Gleason, 185 Miss. 243, 187 So. 229, 1939 Miss. LEXIS 133 (Miss. 1939).

In partition suit, purchaser from cotenant who bought common property at trustee’s sale should be allowed sum received by co-tenant for timber and expended by him in discharging encumbrances against common property. Gilchrist Fordney Co. v. Ezelle, 141 Miss. 124, 106 So. 269, 1925 Miss. LEXIS 220 (Miss. 1925).

Jury trial in partition where complainant’s title is denied by cross-bill is discretionary and not a right. Bland v. Bland, 105 Miss. 478, 62 So. 641, 1913 Miss. LEXIS 233 (Miss. 1913).

The right of a tenant in common upon partition to charge the interest of his cotenant with what may be due on an accounting as to receipts and disbursements concerning the common estate, does not entitle him to priority over a bona fide encumbrancer of the interest of such co-tenant. Burns v. Dreyfus, 69 Miss. 211, 11 So. 107, 1891 Miss. LEXIS 93 (Miss. 1891); Morgan v. Long, 73 Miss. 406, 19 So. 98, 1895 Miss. LEXIS 130 (Miss. 1895).

A defendant who has not entered under a common claim of title, can defeat a partition suit by showing an outstanding title in a stranger to the suit. Cooper v. Fox, 67 Miss. 237, 7 So. 342, 1889 Miss. LEXIS 76 (Miss. 1889).

3. Title issue waived.

In a case where a husband was seeking a partition under Miss. Code Ann. §11-21-11, the issue of whether he was a proper titleholder to a residence was waived because he did not appeal a portion of a decision requiring the removal of his name from a warranty deed; at any rate, the wife was able to prove that there was a unilateral mistake made due to the husband’s fraudulent misrepresentations about their remarriage. The husband only lived in the new house for a few weeks, and he did not contribute to its upkeep. Thweatt v. Thweatt, 4 So.3d 1085, 2009 Miss. App. LEXIS 102 (Miss. Ct. App. 2009).

RESEARCH REFERENCES

CJS.

68 C.J.S., Partition §§ 56–59.

§ 11-21-11. Court may order sale in first instance.

If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests. The court may appoint a master to make the sale, and may make all proper orders to protect the rights of the parties interested. The court may order the sale of a part of the land and the partition in kind of the residue.

Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.

HISTORY: Codes, 1871, § 1829; 1880, § 2559; 1892, § 3100; 1906, § 3524; Hemingway’s 1917, § 2836; 1930, § 2924; 1942, § 965; Laws, 1958, ch. 251; Laws, 1984, ch. 437, § 1; Laws, 1991, ch. 573, § 51, eff from and after July 1, 1991.

Cross References —

Sale of land upon commissioner’s report, see §11-21-27.

Where a person entitled to a distributive share of a deceased’s estate may compel distribution, see §91-7-303.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Generally.

2. Construction.

3. Burden of proof.

4. Consent of parties.

5. Appointment of commissioner to make sale.

6. Miscellaneous.

1. Generally.

Trial court was presented with affirmative proof that a partition by sale under Miss. Code Ann. §11-21-11 was in the best interests of the parties and thus the trial court did not err by ordering the property to be sold and dividing the proceeds equally between appellants and appellee as co-tenants; an expert on real estate appraisals testified that it was his opinion that the properties were to be sold rather than being partitioned in kind, the court found no error in the appraisal of the properties and believed that the trial court did not abuse its discretion in relying on the report, and the trial court did not rely solely on the appraisal, but also considered the parties’ recommendations and did not abuse its discretion in assigning more weight to the expert’s opinion. Georgian v. Harrington, 990 So. 2d 813, 2008 Miss. App. LEXIS 561 (Miss. Ct. App. 2008).

Defendant’s argument that a judicial sale was invalid because the special master did not subscribe to the oath in Miss. Code Ann. §11-21-17 was rejected because the oath prescribed in §11-21-17 applied only to the three masters appointed to conduct a partition in kind pursuant to Miss. Code Ann. §11-21-15. Dunaway v. Morgan, 918 So. 2d 872, 2006 Miss. App. LEXIS 9 (Miss. Ct. App. 2006).

Trial court properly ordered that commercial property be sold instead of partited in kind where property was not subject to partition in kind due to configuration of seven buildings thereon and by virtue the parties’ strained relationship after purchasing the property, but appellate court reemphasized a preference for partition in kind when practicable. Fuller v. Chimento, 824 So. 2d 599, 2002 Miss. LEXIS 225 (Miss. 2002).

Chancellor, who ordered a co-tenant to be divested of his interest in the property at a price calculated using such factors as the original cost, the subsequent expenses of maintaining and operating the property, and a fair rental factor based on the fact that one tenant was out of possession during the entire period of joint ownership, erred, since the right of partition created by statute is an absolute right of a tenant in common; thus, an attempt by a chancellor to fashion an alternate means of ending a cotenancy which he deemed more equitable under the particular facts was an error as a matter of law. The court however found no reversible error in the manner in which the chancellor computed the property values and adjusted the equities, so these could be used if the property were to be partitioned on remand. Murphree v. Cook, 2001 Miss. App. LEXIS 307 (Miss. Ct. App. July 31, 2001).

A chancellor erred in ordering a petition of property by sale, rather than the legally preferable partition in kind, where there was no substantial proof that a sale would better promote the interests of the parties or that an equal partition in kind would be impracticable. Shaw v. Shaw, 603 So. 2d 287, 1992 Miss. LEXIS 325 (Miss. 1992).

Tenant in common who filed answer to complaint for partition alleging affirmatively that property could not be divided in kind, but who failed to adhere to the prerequisites of Mississippi Code §11-21-11, could not prevail on appeal where the record, which contained nothing to support his brief of errors, showed scrupulous adherence by the chancery court and chancellor in vacation to the law and partition statutes. Vinson v. Johnson, 493 So. 2d 947, 1986 Miss. LEXIS 2581 (Miss. 1986).

A sale of land cannot be decreed unless it has been shown that an equal partition in kind cannot be made. Monaghan v. Wagner, 487 So. 2d 815, 1986 Miss. LEXIS 2443 (Miss. 1986).

When house jointly owned by former husband and former wife is ordered sold, wife is not entitled to be allowed to purchase land in question under affordable terms and conditions. Daughtrey v. Daughtrey, 474 So. 2d 598, 1985 Miss. LEXIS 2454 (Miss. 1985).

Hardship is not defense to right of partition. Daughtrey v. Daughtrey, 474 So. 2d 598, 1985 Miss. LEXIS 2454 (Miss. 1985).

Where there is nothing in the record to indicate that it would be to the best interest of all of the parties to sell the property rather than partition it in kind, the sale of the property should not be ordered. Mathis v. Quick, 271 So. 2d 924, 1973 Miss. LEXIS 1527 (Miss. 1973).

In the absence of evidence that a sale will better promote the interests of the parties or an equal division in kind cannot be made, a sale should not be ordered. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

This section [Code 1942, § 965] affords authority for ordering partition in kind to a cotenant desirous thereof, providing owelty if necessary, and a sale of the remainder with division of the proceeds. Carter v. Ford, 241 Miss. 511, 130 So. 2d 852, 1961 Miss. LEXIS 368 (Miss. 1961).

In determining whether sale and division of proceeds should be ordered instead of partition in kind, the cost of partition in kind, while a consideration, is not controlling. Carter v. Ford, 241 Miss. 511, 130 So. 2d 852, 1961 Miss. LEXIS 368 (Miss. 1961).

In determining whether to order division in kind rather than a sale, the widow’s election against the will does not warrant disregard of its provisions as to the shares of other beneficiaries. Jefcoat v. Powell, 235 Miss. 291, 108 So. 2d 868, 1959 Miss. LEXIS 429 (Miss. 1959).

Before court can order sale of lands for division of proceeds of sale under this section [Code 1942, § 965], court must be of opinion that sale of the lands, or any part thereof, will better promote interest of all parties than partition in kind, or that equal division cannot be made. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

Where a trustee under a trust in favor of an incompetent tenant in common was to expend as much of the income and as much of the principal as was necessary for the support and maintenance of the incompetent, and was empowered to sell the undivided interest of the incompetent during his lifetime, such trust did not provide for a life estate only, so as to preclude a partition sale without the trustee’s consent; and the other tenants in common were entitled to have the property sold in its entirety in view of demurrers admitting that the property was not subject to partition in kind. Beard v. Rosenzweig, 190 Miss. 325, 200 So. 261, 1941 Miss. LEXIS 56 (Miss. 1941).

Sale for division of proceeds not ordered unless lands not susceptible of partition in kind. Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 1924 Miss. LEXIS 251 (Miss. 1924).

Sale of land for partition ordered only where it will better promote interest of parties, or where division in kind cannot be made. Smith v. Stansel, 93 Miss. 69, 46 So. 538, 1908 Miss. LEXIS 94 (Miss. 1908).

Where the terms of a decree directing a sale in partition were not complied with, and the purchase-money was not paid, and the note for the deferred payments was not given, and no commissioner’s deed was executed in pursuance of the sale, the sale was void and passed no title out of the owners. Liverman v. Lee, 86 Miss. 370, 38 So. 658, 1905 Miss. LEXIS 69 (Miss. 1905).

Where a bidder at a void sale, under a decree for partition, made a payment to the owners or satisfied a tax lien on the land, he should be repaid out of the proceeds of a sale under a decree in a subsequent suit for partition. Liverman v. Lee, 86 Miss. 370, 38 So. 658, 1905 Miss. LEXIS 69 (Miss. 1905).

A decree directing partition of land is interlocutory and may be modified or vacated by the court at any time before the final decree, the one confirming the partition, is rendered. Sweatman v. Dean, 86 Miss. 641, 38 So. 231, 1905 Miss. LEXIS 16 (Miss. 1905).

Title in the purchaser under a chancery proceeding for the sale of lands for a partition of proceeds, which cannot be collaterally attacked, is shown as against the parties to the suit by offering in evidence the bill for partition, process issued and served in the cause, with decree and report of sale and decree of confirmation of sale. Sweatman v. Dean, 86 Miss. 641, 38 So. 231, 1905 Miss. LEXIS 16 (Miss. 1905).

A decree for the sale of lands for division of the proceeds among tenants in common is void after rendition upon proof of publication only, without the precedent affidavit required by statute to authorize such service of process. Moore v. Summerville, 80 Miss. 323, 31 So. 793, 1902 Miss. LEXIS 256 (Miss. 1902).

A sale should not be decreed in partition unless the petition alleges, or the proof shows the existence of one of the statutory requisites therefor. Tindall v. Tindall, 3 So. 581 (Miss. 1888).

A sale will not be ordered where the parties are not entitled to a partition in kind. Pankey v. Howard, 47 Miss. 83, 1872 Miss. LEXIS 52 (Miss. 1872).

2. Construction.

The statute providing for the sale of land for division of proceeds among tenants in common is an innovation on the common law and must be strictly pursued. Cox v. Kyle, 75 Miss. 667, 23 So. 518, 1898 Miss. LEXIS 31 (Miss. 1898).

3. Burden of proof.

Tenant in common seeking a partition by sale has the burden of proving his case comes under the prerequisite statutory provision for ordering a sale as opposed to division in kind. Vinson v. Johnson, 493 So. 2d 947, 1986 Miss. LEXIS 2581 (Miss. 1986).

The trial court erred in finding that a 170-acre tract of timber land was not subject to partition in kind and in ordering its sale where, of the eight heirs-at-law, only one favored the sale, and where such heir did not put on any evidence as to why the property could not be divided or why the interests of all the parties would be better met by a sale; while it was true that the court-appointed commissioners had concluded that the land was not susceptible to division in kind, they failed to give any substantial reasons, based upon a recital of facts found by them to exist, why it could not be done, and the facts recited fell far short of showing that the best interests of all parties would best be served by sale. Nor was the cost of partition in kind controlling, even though the commissioners reported that it would necessitate nine or more surveys at approximately $300 per survey, as well as nine or more appraisals at an approximate cost of $200 to $500 per parcel. Bailey v. Vaughn, 375 So. 2d 1054, 1979 Miss. LEXIS 2472 (Miss. 1979).

Plaintiffs seeking a partition failed to carry their burden of proving clearly that a division could not be made in kind, where defendants owned four ninths interest and were willing to accept their land as a unit. Burley v. Kuykendall, 349 So. 2d 1036, 1977 Miss. LEXIS 2175 (Miss. 1977).

One seeking partition by sale must bring his case clearly within the statute. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

Joint owner seeking partition of realty by sale of premises has burden to establish that lands were not susceptible of partition in kind. Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 1924 Miss. LEXIS 251 (Miss. 1924); Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 1931 Miss. LEXIS 65 (Miss. 1931).

4. Consent of parties.

The court properly ordered a partition by sale where all of the parties agreed to a sale of the property and the consent order specifically stated that the property was not capable of partition in kind in a fair and equitable manner for various enumerated reasons. Dunn v. BL Dev. Corp., 747 So. 2d 284, 1999 Miss. App. LEXIS 478 (Miss. Ct. App. 1999).

A partition by sale is improperly ordered over the objection of one owning 69% of one parcel and 84 1/2 % of the other. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

Court has no authority to order sale over co-tenant’s protest unless it is clear that division in kind cannot be made, or sale would promote best interests of all parties. Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 1910 Miss. LEXIS 112 (Miss. 1910).

A decree ordering the sale of property owned in common for division of the proceeds cannot rightfully direct the sale of other property owned exclusively by one of the parties without the consent of all the parties. White v. Lefoldt, 78 Miss. 173, 28 So. 818, 1900 Miss. LEXIS 87 (Miss. 1900).

5. Appointment of commissioner to make sale.

Guardian ad litem in partition suit should not be made commissioner to make sale. Ponder v. Martin, 119 Miss. 156, 80 So. 388, 1918 Miss. LEXIS 11 (Miss. 1918).

A decree directing a partition of land if it can be equitably done, and, if not, that the commissioners appointed to make the sale shall report accordingly to the next term of court, is not a final decree, but an interlocutory decree from which no appeal lies. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482, 1896 Miss. LEXIS 189 (Miss. 1896).

6. Miscellaneous.

In a case in which a married couple held a shared interest in the subject property, the trial court committed reversible error when it found that the omission of the husband from the initial complaint did not result in prejudice to the couple. The husband was not properly noticed or added as a party defendant until a year after the matter was initiated. Morton v. Quinn, 206 So.3d 1265, 2016 Miss. App. LEXIS 809 (Miss. Ct. App. 2016).

When a shareholder sought a family corporation’s judicial dissolution in chancery court, a decree awarding the shareholder an in-kind division of the corporation’s land was not unauthorized, even after siblings invoked their right to purchase the shareholder’s shares, because Miss. Code Ann. §79-4-14.34(i) said nothing in Miss. Code Ann. §79-4-14.34 diminished the chancellor’s equity powers to fashion an alternate remedy. Rainbow Ranch, Inc. v. Hardin (In re Will of Hardin), 158 So.3d 341, 2014 Miss. App. LEXIS 401 (Miss. Ct. App. 2014), cert. denied, — So.3d —, 2015 Miss. LEXIS 120 (Miss. 2015).

Neither Miss. Code Ann. §11-21-11, nor its companion Miss. Code Ann. §11-21-27, mandates that an appraisal must be obtained prior to selling partitioned land, but rather, in both statutes, the trial court may cause an appraisal to be made of the property; so clearly chancellors are vested with discretionary authority over whether to require an appraisal. Pride v. Pride, 60 So.3d 208, 2011 Miss. App. LEXIS 190 (Miss. Ct. App. 2011).

Siblings waived any objection to the chancery court’s failure to require that an appraisal take place before the auction of a homesite because they never raised the issue of appraisal in the chancery court; the parties stipulated on the record to the procedure for partition by sale, and the chancellor adopted the procedure requested by the parties. Pride v. Pride, 60 So.3d 208, 2011 Miss. App. LEXIS 190 (Miss. Ct. App. 2011).

Siblings argument that the chancery court erred by not following the requirements of Miss. Code Ann. §11-21-11 in ordering the sale of a homesite was procedurally barred because the siblings made absolutely no protest; the siblings neither objected to the commissioners’ report recommending a partition in kind of the land nor to the chancery court’s decision to partition the homesite by sale, and in their reply brief, they conceded that they agreed with the decision to partition the homesite by sale. Pride v. Pride, 60 So.3d 208, 2011 Miss. App. LEXIS 190 (Miss. Ct. App. 2011).

In a partition action, the chancery court did not abuse its discretion in ordering that the property be sold and that the proceeds from the sale be divided equally among the parties because appellant received a copy of the appraisal, was aware of the time and place of the public sale, and was aware of the right to appear and bid on the property. Polk v. Jones, 20 So.3d 710, 2009 Miss. App. LEXIS 191 (Miss. Ct. App. 2009).

In a case where a husband was seeking a partition under Miss. Code Ann. §11-21-11, the issue of whether he was a proper titleholder to a residence was waived because he did not appeal a portion of a decision requiring the removal of his name from a warranty deed; at any rate, the wife was able to prove that there was a unilateral mistake made due to the husband’s fraudulent misrepresentations about their remarriage. The husband only lived in the new house for a few weeks, and he did not contribute to its upkeep. Thweatt v. Thweatt, 4 So.3d 1085, 2009 Miss. App. LEXIS 102 (Miss. Ct. App. 2009).

Where real property had approximately 300 co-tenants, it was not error to order the partition by sale of the property, rather than partition in kind, because (1) the property had different types of terrain, (2) the property lacked access, (3) there were a large number of individual interests, and (4) there was no way to cover existing expenses other than by sale of the property. Cathey v. McPhail & Assocs., 989 So. 2d 494, 2008 Miss. App. LEXIS 514 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition §§ 70 et seq.

19 Am. Jur. Pl and Pr Forms (Rev), Partition, Forms 181 et seq. (Interlocutory judgments and orders for sale in partition).

CJS.

68 C.J.S., Partition §§ 179 et seq.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

§ 11-21-13. Partition without masters; owelty.

If, at the hearing, it appear that the intervention of masters is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the court may order the partition and fix the amount to be paid by one (1) or several cotenants to another or others; or this may be done on hearing the report of the master.

HISTORY: Codes, 1892, § 3102; 1906, § 3526; Hemingway’s 1917, § 2838; 1930, § 2925; 1942, § 966; Laws, 1958, ch. 252; Laws, 1991, ch. 573, § 52, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

The court in its discretion may order a sale of only a part of the lands sought to be partited. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

Where tenants in common, holding unequal undivided interests, went into separate possession of respective shares in 1918 under alleged oral partition, and improved land, chancery court, in partition suit in 1928, held required to make effort to allot improved lands to their improvers, without accounting, but, if that was impractical and new partition was necessary, accounting should be had as to such improvements. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

Where tenants in common, holding unequal undivided interests, went into exclusive and separate possession of respective shares under alleged oral partition in 1918, and one cultivated land in businesslike manner, while others neglected theirs, they were estopped, in partition suit in 1928, to claim rent from one another, and no accounting for rents was due. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition §§ 44 et seq.

CJS.

68 C.J.S., Partition § 144.

§ 11-21-15. Judgment appointing masters.

If the judgment is for a partition of the land, it shall state the number of shares into which the land is to be divided, and shall appoint not more than three (3) discreet freeholders, not related to the parties by consanguinity or affinity, to make partition according to the judgment. Either party may object to any master for cause, and, in case the objection is sustained, the place shall be filled by another appointment. If any vacancy occurs among the masters, the chancellor may fill the vacancy at any time by written appointment.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2 (2); 1857, ch. 36, art. 51; 1871, § 1819; 1880, §§ 2560, 2561; 1892, § 3103; 1906, § 3327; Hemingway’s 1917, § 2839; 1930, § 2926; 1942, § 967; Laws, 1958, ch. 259; Laws, 1991, ch. 573, § 53; Laws, 2014, ch. 413, § 1, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment substituted “is for a partition” for “be for a partition” and inserted “not more than” in the first sentence; substituted “is sustained” for “be sustained” in the second sentence, and substituted “occurs” for “occur” and “the vacancy” for “such vacancy” in the last sentence.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Defendant’s argument that a judicial sale was invalid because the special master did not subscribe to the oath in Miss. Code Ann. §11-21-17 was rejected because the oath prescribed in §11-21-17 applied only to the three masters appointed to conduct a partition in kind pursuant to Miss. Code Ann. §11-21-15 and the sale here was conducted pursuant to Miss. Code Ann.11-21-11. Dunaway v. Morgan, 918 So. 2d 872, 2006 Miss. App. LEXIS 9 (Miss. Ct. App. 2006).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition §§ 64, 65, 68.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Form 112 (Order appointing commissioners or referees to partition land).

CJS.

68 C.J.S., Partition §§ 155, 156.

§ 11-21-17. Oath of special commissioners.

Before the special commissioners enter upon the discharge of their duties, they shall take and subscribe an oath before some competent officer, that they will honestly, faithfully and impartially make the partition decreed, and perform the duties required of them to the best of their skill, knowledge and judgment.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2 (3); 1857, ch. 36, art. 52; 1871, § 1822; 1880, § 2562; 1892, § 3104; 1906, § 3528; Hemingway’s 1917, § 2840; 1930, § 2927; 1942, § 968; Laws, 1958, ch. 258.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Oath.

Defendant’s argument that a judicial sale was invalid because the special master did not subscribe to the oath in Miss. Code Ann. §11-21-17 was rejected because the oath prescribed in §11-21-17 applied only to the three masters appointed to conduct a partition in kind pursuant to Miss. Code Ann. §11-21-15. Dunaway v. Morgan, 918 So. 2d 872, 2006 Miss. App. LEXIS 9 (Miss. Ct. App. 2006).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition § 64.

CJS.

68 C.J.S., Partition §§ 155, 156.

§ 11-21-19. Survey made and division into shares.

The special commissioners shall, if deemed advisable, cause a survey to be made of the lands to be divided, in their presence, and shall divide the same into the number of parts or shares directed in the order containing their appointment, each part or share to contain one or more lots, as the special commissioners may think proper, having regard to the situation, quantity, quality and advantages of each part or share, so that they may be equal in value as nearly as may be, or according to the respective rights of the parties. If the bounds or title of any tract be controverted and the controverted part be valuable, the special commissioners shall separate it from the part not controverted, and make a partition of the tract or tracts in such manner that a portion of the controverted part may be allotted to each share, as well as a portion of the part not controverted. The special commissioners, or any one of them, previous to the survey, if any, shall administer an oath to the surveyors and chain bearers that they will honestly and impartially perform their respective duties.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2 (4); 1857, ch. 36, art. 53; 1871, § 1823; 1880, § 2563; 1892, § 3105; 1906, § 3529; Hemingway’s 1917, § 2841; 1930, § 2928; 1942, § 969; Laws, 1958, ch. 249.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

ALR.

Necessary and proper parties to suit or proceeding to establish private boundary line. 73 A.L.R.3d 948.

§ 11-21-21. Allotment of shares by ballot.

The special commissioners, if the same have not been done by the surveyor, shall make a plat of land to be divided; shall make true field notes, specifying the metes and bounds of the several shares, and of each parcel of each share which contains more than one parcel; and the several shares and parcels of shares shall be distinctly designated on the plat and numbered from one progressively, and the same number shall designate the several parcels of one share; and they shall allot the several shares in the following manner: The special commissioners shall publicly number as many tickets as there are shares marked on the plat, and put the tickets into a hat or box, and the names of the persons entitled to shares shall be written on separate tickets and put into another hat or box, when a person appointed for that purpose by the special commissioners shall proceed to draw a ticket of those containing the names, and then a ticket of the numbers, and so proceed until the whole are drawn; and the number which shall be drawn to the name of any cotenant shall be his separate share in the land so divided. The special commissioners shall make certificate of the balloting, signed by them, specifying the time, place and manner thereof, and the allotment of shares.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2(6); 1857, ch. 36, art. 54; 1871, § 1824; 1880, § 2534; 1892, § 3106; 1906, § 3530; Hemingway’s 1917, § 2842; 1930, § 2929; 1942, § 970; Laws, 1958, ch. 250.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Where one cotenant had cleared land amounting to his share and remainder was wild land, cleared land should be allotted to him. Bennett v. Bennett, 84 Miss. 493, 36 So. 452, 1904 Miss. LEXIS 53 (Miss. 1904).

RESEARCH REFERENCES

ALR.

Judicial partition of land by lot or chance. 32 A.L.R.4th 909.

§ 11-21-23. Assignment of shares and owelty.

Instead of making an allotment of shares by ballot, the special commissioners may assign shares to the parties entitled, if so directed by the court or chancellor, or if they find it desirable, and in any case, if an equal partition in kind cannot be made otherwise, or so advantageously, the special commissioners may assess the amount of money to be paid by one or more of the cotenants to another or others, so as to equalize their respective shares.

HISTORY: Codes, 1871, § 2567; 1880, § 2564; 1892, § 3107; 1906, § 3531; Hemingway’s 1917, § 2843; 1930, § 2930; 1942, § 971; Laws, 1958, ch. 244.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Where tenants in common, holding unequal undivided interests, went into exclusive and separate possession of respective shares under alleged oral partition in 1918, and one cultivated land in businesslike manner, while others neglected theirs, they were estopped, in partition suit in 1928, to claim rents from one another, and no accounting for rents was due. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

Where tenants in common, holding unequal undivided interests, went into separate possession of respective shares in 1918 under alleged oral partition, and improved land, chancery court, in partition suit in 1928, held required to make effort to allot improved lands to their improvers, without accounting, but, if that was impractical and new partition was necessary, accounting should be had as to such improvements. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition § 67.

CJS.

68 C.J.S., Partition §§ 159-163.

§ 11-21-25. Report of special commissioners.

The special commissioners shall make to the court, at the first term held after they have acted, or else as the court shall direct, a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court, and other special commissioners appointed, or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2(8); 1857, ch. 36, art. 55; 1871, § 1825; 1880, § 2565; 1892, § 3108; 1906, § 3532; Hemingway’s 1917, § 2844; 1930, § 2931; 1942, § 972; Laws, 1958, ch. 254.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Due process.

1. In general.

Nothing in Miss. Code Ann. §11-21-25 mandated conducting a hearing on objections to the special commissioners’ report. Miles v. Miles, 949 So. 2d 774, 2006 Miss. App. LEXIS 507 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 155 (Miss. 2007).

In a long, complicated dispute among decedent’s eight heirs as to how to divide decedent’s 50 acres of property, the chancellor did not err in rejecting the special commissioner’s third report, and in modifying the commissioner’s fourth and final report. Lynn v. Lynn (In re Will of Lynn), 878 So. 2d 1052, 2004 Miss. App. LEXIS 695 (Miss. Ct. App. 2004).

Where chancery court confirmed commissioners’ report partitioning land and ordered accounting of rents and improvements, subsequent money decree adjudicating equities between parties held “final decree,” appeal from which brought up for review all preliminary and interlocutory decrees, including decree confirming report of commissioners on partition. Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

2. Due process.

Chancellor did not violate the owners’ due process rights by accepting a special master’s amended report and recommendation without conducting a hearing because the chancellor was not statutorily required to conduct a hearing on the merits of the partition action, the owners never filed an objection to either of the master’s reports, the owners failed to appear at the hearings on the reports that were noticed to the parties, the amended report was consistent with the requests the parties made in their pleadings, and the owners were conveyed the 12-acre parcel they requested. Sims v. Mathis, 192 So.3d 1109, 2016 Miss. App. LEXIS 335 (Miss. Ct. App. 2016).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition § 68.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Forms 123-127 (Report by commissioners or referees).

CJS.

68 C.J.S., Partition §§ 164-168.

§ 11-21-27. Land sold when not capable of division.

If, after a judgment for partition and the appointment of masters, it shall appear from the report of the masters, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cotenants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for.

Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.

HISTORY: Codes, 1857, ch. 36, art. 59; 1871, § 1829; 1880, § 2566; 1892, § 3111; 1906, § 3535; Hemingway’s 1917, § 2847; 1930, § 2932; 1942, § 973; Laws, 1958, ch. 246; Laws, 1984, ch. 437, § 2; Laws, 1991, ch. 573, § 54, eff from and after July 1, 1991.

Cross References —

Discretion of court to order the sale of land where this will best serve the interests of the parties, see §11-21-11.

How sale of property shall be made when ordered by a justice of the peace, see §11-21-79.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Appraisal.

Siblings waived any objection to the chancery court’s failure to require that an appraisal take place before the auction of a homesite because they never raised the issue of appraisal in the chancery court; the parties stipulated on the record to the procedure for partition by sale, and the chancellor adopted the procedure requested by the parties. Pride v. Pride, 60 So.3d 208, 2011 Miss. App. LEXIS 190 (Miss. Ct. App. 2011).

Neither Miss. Code Ann. §11-21-11, nor its companion Miss. Code Ann. §11-21-27, mandates that an appraisal must be obtained prior to selling partitioned land, but rather, in both statutes, the trial court may cause an appraisal to be made of the property; so clearly chancellors are vested with discretionary authority over whether to require an appraisal. Pride v. Pride, 60 So.3d 208, 2011 Miss. App. LEXIS 190 (Miss. Ct. App. 2011).

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition §§ 70 et seq.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Form 129 (Writ to sheriff for sale of property after report that partition in kind is impracticable).

CJS.

68 C.J.S., Partition §§ 179 et seq.

§ 11-21-29. Compensation of masters.

The court in which the cause is pending, or the chancellor or judge thereof in vacation, shall fix and allow reasonable compensation for each of the masters, and such compensation shall be taxed and collected as costs in the suit.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2(9); 1857, ch. 36, art. 57; 1871, § 1840; 1880, § 2575; 1892, § 3109; 1906, § 3533; Hemingway’s 1917, § 2845; 1930, § 2933; 1942, § 974; Laws, 1928, ch. 299; Laws, 1960, ch. 225; Laws, 1991, ch. 573, § 55, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-21-31. Attorney’s fees.

In all cases of the partition or sale of property for division of proceeds, the court may allow a reasonable attorney’s fee to the attorney or the plaintiff, to be taxed as a common charge on all the interests, and to be paid out of the proceeds in case of a sale, and to be a lien on the several parts in case of partition.

HISTORY: Codes, 1880, § 2577; 1892, § 3119; 1906, § 3542; Hemingway’s 1917, § 2854; 1930, § 2934; 1942, § 975; Laws, 1991, ch. 573, § 56, eff from and after July 1, 1991.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Effect of controversy between parties.

2. Allowance to defendant’s solicitor.

3. Miscellaneous.

1. Effect of controversy between parties.

Although the trial judge in a partition suit has the authority to award attorney’s fees to the attorney or to the complainant to be taxed as a common charge on all interests, pursuant to §11-21-31, such authority is usually not allowed when the partition suit is resisted and the defendant employs an attorney in good faith to represent his or her interest. O'Neill v. O'Neill, 551 So. 2d 228, 1989 Miss. LEXIS 425 (Miss. 1989).

This section is intended primarily to allow a fee to the solicitor who conducts a partition suit without resistance, and it should not be allowed if the party opposing partition has presented a real defense, nor should attorney’s fees be awarded until partition in kind or sale for division of proceeds has been completed and approved by the court; this section is discretionary and not mandatory. Blackmon v. Blackmon, 350 So. 2d 44, 1977 Miss. LEXIS 2207 (Miss. 1977).

This statute relates to the allowance of a fee to the solicitor in an uncontested suit; and such fee should not be allowed where there is a real controversy and it is proper that defendants be represented by counsel of their own choosing-especially so where a defendant is successful in part. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

Where defendant was successful in part through his initiative and effort of his counsel, in securing relief asked in his answer, it was error to charge him with any part of fee of complainant’s attorney. Billingsley v. Billingsley, 114 Miss. 702, 75 So. 547, 1917 Miss. LEXIS 81 (Miss. 1917).

Thus, where defendants assert a hostile title to a part of the land it is error as against them to allow a fee which includes services in cancelling such claim, as well as services in the partition. Neblett v. Neblett, 70 Miss. 572, 12 So. 598, 1893 Miss. LEXIS 17 (Miss. 1893); Hoffman v. Smith, 61 Miss. 544, 1884 Miss. LEXIS 126 (Miss. 1884).

Primarily the statute is intended to give a fee to the solicitor who conducts the suit without resistance, but it is not so limited. Hoffman v. Smith, 61 Miss. 544, 1884 Miss. LEXIS 126 (Miss. 1884).

When there is a real controversy, and a propriety in defendants being represented by counsel of their own, the fee should not be allowed. Hoffman v. Smith, 61 Miss. 544, 1884 Miss. LEXIS 126 (Miss. 1884); Walker v. Williams, 84 Miss. 392, 36 So. 450, 1904 Miss. LEXIS 52 (Miss. 1904); Hardy v. Richards, 103 Miss. 548, 60 So. 643, 1912 Miss. LEXIS 198 (Miss. 1912); Carpenter v. Carpenter, 104 Miss. 403, 61 So. 421, 1913 Miss. LEXIS 39 (Miss. 1913); Brower v. Rosenbaum & Little, 125 Miss. 87, 87 So. 130, 1921 Miss. LEXIS 92 (Miss. 1921).

2. Allowance to defendant’s solicitor.

Where a defendant employs his own attorney in good faith to represent his interest or to assert his position in a controversy during a partition proceeding, he should not be required to contribute to the fee of complainants’ attorney. Walker v. Davis, 309 So. 2d 853, 1975 Miss. LEXIS 1893 (Miss. 1975).

This section [Code 1942, § 975] does not warrant allowance of more than one fee. Smith v. Stansel, 93 Miss. 69, 46 So. 538, 1908 Miss. LEXIS 94 (Miss. 1908).

The section [Code 1942, § 975] does not allow a fee to the solicitor of defendant who has filed an answer and cross-bill opposing a sale, and demanding partition in kind. Potts v. Gray, 60 Miss. 57, 1882 Miss. LEXIS 9 (Miss. 1882).

3. Miscellaneous.

Because the chancery court’s order for the marital house to be sold was part of the equitable distribution, the partition statutes had no applicability, and a husband was not entitled to attorney’s fees under the statute. Pierce v. Pierce, 132 So.3d 553, 2014 Miss. LEXIS 122 (Miss. 2014).

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).

The intent of the legislature as expressed in this section [Code 1942, § 975] was to give the court the option, in its discretion, of allowing a reasonable solicitor’s fee to the solicitor for the complainant only after a partition in kind had been completed, or a sale of the property for division of the proceeds had been consummated, for the benefit of all the owners, and that only then could the court allow a fee and tax it as a common charge on all the interests. Herrington v. Dennis, 204 So. 2d 440, 1967 Miss. LEXIS 1192 (Miss. 1967).

One of the most important duties and responsibilities devolving upon the solicitor for the complainant in a partition suit is to see that summons for nonresident defendants are legally correct and complete. Herrington v. Dennis, 204 So. 2d 440, 1967 Miss. LEXIS 1192 (Miss. 1967).

Where the only services performed by the solicitor for the complainant was to initiate the action for a partition (which complainant later desired to dismiss), he was not entitled to intervene in the partition suit for the purpose of having the court determine a reasonable fee for his services, nor was he entitled to a lien on the property to be partitioned, or upon the undivided interest therein of his client. Herrington v. Dennis, 204 So. 2d 440, 1967 Miss. LEXIS 1192 (Miss. 1967).

Instrument combining contract for services of attorney, power of attorney, and security for fee in securing property for heir did not entitle attorney to bring partition suit against heir. Wright v. Bowers, 112 Miss. 516, 73 So. 568, 1916 Miss. LEXIS 140 (Miss. 1916).

Decree erroneously making fee of complainant’s solicitor common charge on all the land will not be reversed as to defendant appealing where she previously signed agreement that decree might be carried into effect, nor as to defendant not appealing. Carpenter v. Carpenter, 104 Miss. 403, 61 So. 421, 1913 Miss. LEXIS 39 (Miss. 1913).

Where the sale is void complainants are not entitled to credit for attorney’s fees and court costs, payable out of the proceeds of a valid sale in a subsequent suit. Liverman v. Lee, 86 Miss. 370, 38 So. 658, 1905 Miss. LEXIS 69 (Miss. 1905).

RESEARCH REFERENCES

ALR.

Allowance and apportionment of counsel fees in suit for partition. 94 A.L.R.2d 575.

Am. Jur.

59A Am. Jur. 2d, Partition §§ 80 et seq.

CJS.

68 C.J.S., Partition §§ 230, 231, 234, 235 et seq.

§ 11-21-33. Owelty a lien.

In all cases where owelty is allowed, it shall be a lien upon the share of the party charged therewith, which shall be superior to all other liens made or suffered by such party.

HISTORY: Codes, 1880, § 2567; 1892, § 3110; 1906, § 3534; Hemingway’s 1917, § 2846; 1930, § 2935; 1942, § 976.

Cross References —

Rule that lien created by cotenant shall remain in effect only as to that cotenant’s share after partition, see §11-21-39.

When property is not exempt from execution, see §85-3-47.

Concurrence of liens for erecting, altering, or repairing the same structure, see §85-7-263.

Preference given to mortgage for purchase-money of land, see §89-1-45.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Because the chancellor in partition action elected to assess the tenant-in-possession with one-half the rent value of the property for her occupancy of the co-tenant’s undivided one-half interest in the property, the chancellor in effect called on the tenant-in-possession to pay for her exclusive use of the property; therefore, the co-tenant could not receive the full rent value of his half interest in the property while, at the same time, forcing the tenant-in-possession to pay the normal expenses of operating and maintaining the property. Accordingly, in a partition in kind, the portion set apart to the tenant-in-possession could be subjected to a charge in the nature of owelty to secure the payment resulting from the adjustments. Murphree v. Cook, 2001 Miss. App. LEXIS 307 (Miss. Ct. App. July 31, 2001).

§ 11-21-35. Final judgment and judgment confirming partition.

The final judgment of the chancery court in partition proceedings shall ascertain and settle the rights of all parties; and it, and the judgment confirming the partition, shall constitute an instrument of evidence in all questions as to the title of the lands which may be the subject of the judgment, in all courts, and shall be conclusive as to the rights of all parties to the suit, and subject to motions and other post trial review, as in other suits, and to a repartition as provided.

HISTORY: Codes, 1871, § 1828; 1880, § 2568; 1892, § 3112; 1906, § 3536; Hemingway’s 1917, § 2848; 1930, § 2936; 1942, § 977; Laws, 1991, ch. 573, § 57, eff from and after July 1, 1991.

Cross References —

Rule that a decree of chancery court shall have effect of judgment in circuit court, see §11-5-79.

Reports to chancellor of sale or partition of land, see §11-5-107.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Conclusiveness and validity.

3. Bill of review.

1. In general.

In a suit to set aside a final decree confirming a sale of land by a special commissioner for division of proceeds in a partition suit, the trial court erred in sustaining both a special demurrer raising the affirmative defenses of limitations of actions, laches and bona fide purchaser for value, and a motion to dismiss raising the affirmative defenses of res judicata, laches and estoppel, where none of the facts upon which the special demurrer and motion to dismiss could dependably rest had been averred in the complaint. Complainants’ affirmative allegations that one or more of them had been in possession since the sale and that none of them had accepted the proceeds of the partition sale also raised a question of fact to be determined upon proof. Mosby v. Gandy, 375 So. 2d 1024, 1979 Miss. LEXIS 2470 (Miss. 1979).

Where the record in a partition suit wholly failed to show that the property sold for a grossly inadequate price, and there was no proof that the trial court did not permit appellant’s testimony to be presented at the time of the final report of the special commissioner, the trial court’s decree of partition was affirmed. Legg v. Legg, 251 Miss. 12, 168 So. 2d 58, 1964 Miss. LEXIS 322 (Miss. 1964).

Bill which is sufficient in substance and contains prayer for general relief in addition to special prayer that property be sold for partition is sufficient to support decree for partition in kind. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

The repartition mentioned in this statute is that provided by Code 1942, § 982, which is limited to one year next after the first partition. Kittrell v. O'Flynn, 203 Miss. 164, 33 So. 2d 628, 1948 Miss. LEXIS 245 (Miss. 1948).

Duty of next friend to protect rights of ward throughout partition suit and to prevent confirmation if sale violates or prejudices rights of ward. Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, 1919 Miss. LEXIS 107 (Miss. 1919).

Defective bond to prevent confirmation cured by Code 1906, § 1022. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

Damages to first purchaser not adjudicated in proceeding to prevent confirmation and for resale. Little v. Cammack, 109 Miss. 753, 69 So. 594, 1915 Miss. LEXIS 222 (Miss. 1915).

On dismissing intervening petition against confirmation, petitioner not being party, it was error to confirm sale and adjudicate her rights. Talley v. Talley, 108 Miss. 84, 66 So. 328, 1914 Miss. LEXIS 172 (Miss. 1914).

Price paid at partition sale does not belong to tenants in common until sale confirmed. Bank of Hickory v. McPherson, 102 Miss. 852, 59 So. 934, 1912 Miss. LEXIS 129 (Miss. 1912) but see Collier v. Trustmark Nat'l Bank, 678 So. 2d 693, 1996 Miss. LEXIS 412 (Miss. 1996).

In suit for partition and accounting, resale of tenant’s share proper where he failed to pay rent found to be collected by him. George v. Woods, 94 Miss. 268, 49 So. 147 (Miss. 1908).

Defendants in partition suit may assert title to proceeds of interest awarded co-defendant against his garnishing creditor. Shuler v. Murphy, 91 Miss. 518, 44 So. 810, 1907 Miss. LEXIS 145 (Miss. 1907).

Where allowance for rent is excessive case will be reversed. Bowles v. Wood, 90 Miss. 742, 44 So. 169, 1907 Miss. LEXIS 116 (Miss. 1907).

Where defendants seek to have a cause treated as a pending one because of an erroneous description of land in what had been regarded for years as a final decree in a partition suit and the complainant asks that if it be so treated the cause be dismissed, the defendants cannot complain of a decree dismissing it without prejudice to their right to bring any other suit they may see proper. Farmer v. Allen, 85 Miss. 672, 38 So. 38, 1904 Miss. LEXIS 181 (Miss. 1904).

2. Conclusiveness and validity.

Where chancery court confirmed commissioners’ report partitioning land and ordered accounting of rents, etc., subsequent money decree adjudicating equities between parties, held “final decree.” Butler v. Furr, 168 Miss. 884, 152 So. 277, 1934 Miss. LEXIS 366 (Miss. 1934).

A decree confirming an amicable partition of land is invalid which ignores the rights of a joint owner who was a defendant to the partition proceeding and did not assent to the allotment agreed upon by the other parties. Cotton v. Cash, 85 Miss. 29, 37 So. 459, 1904 Miss. LEXIS 128 (Miss. 1904).

A decree for the sale of land for partition which fixes the interest of the parties is conclusive as to such interest as between the parties and their privies, although the decree is never executed by a valid sale of the land. Alsobrook v. Eggleston, 69 Miss. 833, 13 So. 850, 1892 Miss. LEXIS 47 (Miss. 1892).

3. Bill of review.

A bill of review is the proper way to attack a partition deed to one who was the next friend of infant parties. Welch v. Parker, 242 Miss. 331, 135 So. 2d 851, 1961 Miss. LEXIS 563 (Miss. 1961).

Review of a decree is barred by limitations where not sought within two years after the person seeking review reached majority. Welch v. Parker, 242 Miss. 331, 135 So. 2d 851, 1961 Miss. LEXIS 563 (Miss. 1961).

No leave of court is necessary to file a bill of review for error apparent on face of record. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

Petition for leave to file bill of review based upon newly discovered evidence must show by facts that no want of reasonable diligence in discovering evidence is to be imputed to petitioner and all inferences of want of diligence must be rebutted by complete statement of facts in that regard. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

Demurrer to petition for leave to file bill of review based upon newly discovered evidence is correctly sustained when alleged newly discovered evidence was known to court at time decree complained of was executed and was incorporated into provisions of that decree. Dillon v. Hackett, 204 Miss. 464, 37 So. 2d 744, 1948 Miss. LEXIS 381 (Miss. 1948).

A bill in equity seeking to review the proceedings and decrees in a partition suit should set forth the interests of all the parties, join all the parties to the original suit or show the facts justifying their nonjoinder; and show the facts justifying the joinder of persons not parties to the original suit if any be joined. Barber v. Armistead, 82 Miss. 788, 35 So. 199 (Miss. 1903).

Code 1892, § 3122, denying an action to recover property sold under a chancery decree after two years from date of possession taken by the purchaser, does not debar a minor interested in lands sold under partition proceedings from filing a bill of review at any time within two years after coming of age. Partition proceedings are governed by an independent chapter of the Code, to which § 3122 has no application. Such a bill may be filed within the time limited by § 3111. Martin v. Gilleyler, 70 Miss. 324, 12 So. 254 (Miss. 1892).

RESEARCH REFERENCES

ALR.

Basis of computation of cotenants’ accountability for minerals and timber removed from the property. 5 A.L.R.2d 1368.

Am. Jur.

59A Am. Jur. 2d, Partition §§ 53.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Forms 191 et seq. (Proceedings, orders, and judgments after partition or sale in partition).

CJS.

68 C.J.S., Partition § 118.

§ 11-21-37. Recording of judgments.

Judgments making partition shall be recorded in the record book of conveyances of the county or district in which any of the lands are situated, within three (3) months after the partition is confirmed; and a partition, the judgment making which is not so deposited with the clerk for record, shall not be valid as against purchasers without notice, or against creditors.

HISTORY: Codes, 1871, § 1828; 1880, § 2569; 1892, § 3113; 1906, § 3537; Hemingway’s 1917, § 2849; 1930, § 2937; 1942, § 978; Laws, 1991, ch. 573, § 58, eff from and after July 1, 1991.

Cross References —

Creation of a lien on land sold on credit pursuant to an order of the chancery court, see §11-5-97.

Rule that a decree cannot be assailed collaterally except for fraud, see §91-1-31.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-21-39. Lien created by party binding on his share.

Any mortgage or other lien executed by any joint tenant, tenant in common, or coparcener, shall remain in force on the share of such cotenant after partition, and on his share only; but this shall not prevent the holder of such mortgage or other lien from asserting claim to owelty awarded to such cotenant.

HISTORY: Codes, 1857, ch. 36, art. 62; 1871, § 1836; 1880, § 2572; 1892, § 3115; 1906, § 3539; Hemingway’s 1917, § 2851; 1930, § 2938; 1942, § 979.

Cross References —

Rule that owelty shall be a lien upon the share of the party charged therewith, see §11-21-33.

Concurrence of liens for erecting, altering, or repairing the same structure, see §85-7-263.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition § 95.

CJS.

68 C.J.S., Partition § 240.

§ 11-21-41. Paramount rights not affected.

Nothing herein contained shall be construed so as to injure, prejudice, defeat or destroy the estate, right, or title of any person claiming a tract of land, or any part thereof, or any piece or lot of land by title under any other person, or title paramount to the title of the joint tenants, tenants in common, or coparceners, among whom partition may have been made.

HISTORY: Codes, Hutchinson’s 1848, ch. 42, art. 2(14); 1857, ch. 36, art. 64; 1871, § 1838; 1880, § 2573; 1892, § 3117; 1906, § 3540; Hemingway’s 1917, § 2852; 1930, § 2939; 1942, § 980.

Cross References —

Rule that the priority of all instruments is controlled by the date of filing for record, see §89-5-5.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Right to partition.

As the owner of an undivided interest in the fee simple estate, the corporation had a legal right to partite the property in kind and to file its complaint, and the partition in kind of the property would not have affected the landowner’s rights or the corporation’s duties under the lease by virtue of Miss. Code Ann. §11-21-41; therefore, as a matter of law, filing the partition suit could not have been the basis for the landowner’s tort claims. Green v. Southern Landfill Mgmt., 914 So. 2d 705, 2005 Miss. LEXIS 722 (Miss. 2005).

RESEARCH REFERENCES

ALR.

Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition. 77 A.L.R.2d 1376.

§ 11-21-43. Party evicted to have partition of residue.

If any person who has received a share of land partitioned, shall be evicted therefrom, or from any portion thereof, by a paramount title existing at the time of the partition, and there be a residue of land left not subject to such paramount title, the party so evicted shall be entitled to a new partition of the residue.

HISTORY: Codes, 1857, ch. 36, art. 61; 1871, § 1835; 1880, § 2571; 1892, § 3114; 1906, § 3538; Hemingway’s 1917, § 2850; 1930, § 2940; 1942, § 981.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

59A Am. Jur. 2d, Partition § 9.

§ 11-21-45. New partition; when.

Where the partition was in kind, any joint tenant, tenant in common, or coparcener shall be entitled to a new partition at any time within one year after the first partition, provided, he shall present his sworn petition for that purpose to the chancery court which decreed the partition and shall show thereby (a) that at the time of the partition he was absent from, or a nonresident of the state, and (b) that neither he nor any agent of his received any notice or knowledge whatever of the pendency of the bill for partition, and (c) that the first partition was unfair or unjust or fraudulent as to him, and (d) shall exhibit with said petition the affidavit of at least one credible person to the same effect. Whereupon, if satisfied with the truth of all the grounds aforesaid, the court may proceed to award a new partition; but one who has made improvements on the share first assigned him shall not be evicted from such share; nor shall the improvements be estimated by the second commissioners in fixing its value, but it shall be valued as though the improvements had not been made. If the premises have been sold, and purchased by any of the joint tenants, tenants in common, or coparceners, the nonresident or absent joint tenant, tenant in common or coparcener shall be entitled to set aside such sale at any time within one year thereafter, if it can be shown to have been unfairly made, and fraudulent as to him. In proceedings under this section, all persons interested shall be summoned to appear and contest the application.

HISTORY: Codes, 1857, ch. 36, art. 60; 1871, § 1834; 1880, § 2574; 1892, § 3118; 1906, § 3541; Hemingway’s 1917, § 2853; 1930, § 2941; 1942, § 982.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Review of a decree is barred by limitations where not sought within two years after the person seeking review reached majority. Welch v. Parker, 242 Miss. 331, 135 So. 2d 851, 1961 Miss. LEXIS 563 (Miss. 1961).

Where a decree for partition is void as to a non-resident defendant because of defective publication, such defendant may set aside the decree not only as to himself but as to all the parties, and may thereafter defend by showing that the complainant who claimed title to the interest of one of several tenants in common, not a party to the suit by virtue of an execution sale, had never in fact acquired such interest because the judgment in execution under which he purchased was void. Moore v. Summerville, 80 Miss. 323, 31 So. 793, 1902 Miss. LEXIS 256 (Miss. 1902).

In such case the tenant whose interest was claimed by the complainant is a proper party to the proceeding to vacate the decree and sale thereunder. Moore v. Summerville, 80 Miss. 323, 31 So. 793, 1902 Miss. LEXIS 256 (Miss. 1902).

Personalty

§ 11-21-71. Partition of personalty.

Any person entitled to a division of personal property may apply therefor to the chancery court of the proper county, subject to the foregoing provisions of Sections 11-21-1 through 11-21-45 in reference to land, as far as applicable, considering the difference in the kind of property; and a sale or a division may be ordered in such cases, as provided for in case of land which is incapable of equal division, or which it may be to the interest of the parties to sell, and the court shall have power to make all such orders as may be necessary to protect the rights of parties. And any sale or partition ordered in such cases shall be made and reported as in case of the sale or partition of land; and decrees making partition shall vest title according to their terms. In such cases, the court or chancellor may make all orders, and cause to be issued all process necessary to secure the rights of parties; and writs of sequestration may be issued as provided for in any other cases in which they are authorized.

HISTORY: Codes, 1880, §§ 2578, 2579; 1892, § 3120; 1906, § 3543; Hemingway’s 1917, § 2855; 1930, § 2942; 1942, § 983.

Cross References —

Jurisdiction of county court as to partition of personalty, see §9-9-1.

Partition of personal property by justice of the peace, see §11-21-73.

Writs of sequestration, see § 11–29–1 et seq.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Wife’s prior unsuccessful divorce action against her husband did not bar her subsequent action for statutory partition of the parties’ real and personal property pursuant to Miss. Code Ann. §§11-21-3 and11-21-71; doctrine of res judicata did not apply as the divorce and the partition action did not share identity of cause of action. Miller v. Miller, 838 So. 2d 295, 2002 Miss. App. LEXIS 434 (Miss. Ct. App. 2002), cert. denied, 837 So. 2d 771, 2003 Miss. App. LEXIS 167 (Miss. Ct. App. 2003).

Chancery court has jurisdiction of proceeding for partition of personalty. Barry v. Mattocks, 156 Miss. 424, 125 So. 554, 1930 Miss. LEXIS 143 (Miss. 1930).

Partition of personalty, as well as of land, must be between joint tenants, tenants in common, or coparceners. White v. Lefoldt, 78 Miss. 173, 28 So. 818, 1900 Miss. LEXIS 87 (Miss. 1900).

RESEARCH REFERENCES

Am. Jur.

19 Am. Jur. Pl & Pr Forms (Rev), Partition, Forms 61-64 (Judicial partition of personal property).

CJS.

68 C.J.S., Partition § 36.

§ 11-21-73. Partition by county court or justice court.

A tenant in common of personal property, not exceeding in value the amount provided in Section 9-11-9, may apply for a partition of it by petition in writing to the county court of the county in which the property or some part of it may be, or, in counties not having a county court, to the justice court of the county in which the property or some part of it may be. Thereupon, all the cotenants shall be summoned and the rights of parties ascertained, and an order made for a division of the property. If the property be incapable of division in kind according to the several interests, or if a sale and division of the proceeds will better promote the interests of parties, the county court or justice court, as the case may be, shall order a sale and a division of its proceeds, and may designate a person to make the sale, and may issue execution specially framed to that end, and make all orders necessary or proper to protect the rights of parties and to effect a sale and division of the proceeds.

HISTORY: Codes, 1880, § 2580; 1892, § 3121; 1906, § 3544; Hemingway’s 1917, § 2856; 1930, § 2943; 1942, § 984; Laws, 1981, ch. 471, § 31; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor’s Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

“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 forcefrom 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.”(As amended by Laws, 1982, ch. 423, § 28, eff from and after March 31, 1982).”

Cross References —

Jurisdiction of county court, see §9-9-1.

Civil jurisdiction of justices of the peace generally, see §9-11-9.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

A tenant holding over after expiration of the original term in a lease “with option to rent annually” is not subject to ejectment if notice of an intent and purpose to exercise the option has been established; such provision does not require execution of a new lease covering the extended term. McKeithen v. Bush, 201 Miss. 664, 29 So. 2d 310, 1947 Miss. LEXIS 436 (Miss. 1947).

Under this section [Code 1942, § 984], after condition broken, a trustee in a deed of trust conveying an undivided interest in personalty has such interest as will entitle him to maintain a suit for partition before a justice of the peace of property of less value than one hundred and fifty dollars. Porter v. Stone, 70 Miss. 291, 12 So. 208, 1892 Miss. LEXIS 105 (Miss. 1892).

RESEARCH REFERENCES

CJS.

68 C.J.S., Partition §§ 45, 46.

§ 11-21-75. By whom partition made, if ordered.

If partition be ordered, it shall be made by the county court or the justice of the peace, as the case may be, who shall value the property and divide it equally into as many shares as there are separate owners, and allot the several shares to the different owners after the manner prescribed for the proceeding of commissioners to make partition of real estate, as nearly as may be. A statement of such allotment shall be made by the county judge or the justice on his docket, so as to show what property was allotted to each party. The allotment shall vest the title of the property in the parties to whom it is allotted.

HISTORY: Codes, 1880, § 2581; 1892, § 3122; 1906, § 3545; Hemingway’s 1917, § 2857; 1930, § 2944; 1942, § 985.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 11-21-77. Writ to seize property, and proceedings.

If the petitioner make affidavit at the commencement of his suit, or afterwards, of his right as a tenant in common, and that there is danger of the removal of the property, so as to defeat or endanger his right, the county court or the justice of the peace, as the case may be, shall issue a writ for the seizure of the property; and if the person having it in possession will not give a bond with sufficient sureties, approved by the officer executing the writ, conditioned to have the property forthcoming to abide the final order which shall be made in the case, payable to the petitioner, in a sum sufficient to cover his interest in the property, it shall be delivered to petitioner on his giving a bond, payable to the person from whom it was taken, with sufficient sureties, approved as above provided, in a penalty equal to the value of the interest of such person, conditioned to have the property before the county court or the justice of the peace, as the case may be, to abide the final order in the case; but if neither party give the required bond, the property shall remain in the hands of the officer, unless it be perishable or expensive to keep, in which case it shall be sold, as such property seized under attachment is sold, and the proceeds of the sale shall be disposed of according to the rights of the parties.

HISTORY: Codes, 1880, § 2583; 1892, § 3124; 1906, § 3547; Hemingway’s 1917, § 2859; 1930, § 2945; 1942, § 986.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Writ of sequestration and affidavit and bond required therefor, see §11-29-1 et seq.

Seizure of property as remedy available to holder of lien on the property, see §85-7-31.

Rule that personal representative shall not remove estate property out of state, see §91-7-257.

Seizure of property about to be removed from state, see §93-13-65.

§ 11-21-79. Sale; how made when ordered.

A sale of property ordered by the county court or a justice of the peace, as the case may be, to be made for a division of the proceeds shall be made for cash and on such notice and at such place as sales of like property are made under execution issued by the county court or a justice of the peace, and the money arising from the sale shall be paid to the county court or the justice of the peace, as the case may be, for division among the parties.

HISTORY: Codes, 1880, § 2584; 1892, § 3125; 1906, § 3548; Hemingway’s 1917, § 2860; 1930, § 2946; 1942, § 987.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Sale of land when this best serves the interests of the parties to a partition action, see §11-21-27.

RESEARCH REFERENCES

Am. Jur.

14 Am. Jur. Legal Forms 2d, Partition, §§ 193:51-193:53 (Deed of commissioner or referee following sale).

§ 11-21-81. Appeal to the circuit court.

A person aggrieved may appeal from the judgment of the county court or the justice of the peace, as the case may be, in refusing or ordering a sale or partition, or in making partition, or from any final action of the county court or the justice of the peace, as the case may be, as in any other civil case decided by the county court or a justice of the peace. On appeal, the circuit court may give such judgment as may be right.

HISTORY: Codes, 1880, § 2582; 1892, § 3123; 1906, § 3546; Hemingway’s 1917, § 2858; 1930, § 2947; 1942, § 988.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Appeal from judgment of a justice of the peace generally, see §11-51-85.

Chapter 23. Trial of Right of Property

§ 11-23-1. Proceedings when third person claims subject of action.

Upon affidavit of a defendant, before pleas filed in any action in a circuit court upon contract or for the recovery of personal property, that a third party, without collusion with him, has a claim to the subject of the action, and that he is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping or payment, or deposit in court, or delivery of the subject matter of the action to such person as it may direct, and an order requiring such third party to be summoned to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being duly summoned, as provided for in the Mississippi Rules of Civil Procedure, shall fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if such third party appear, he shall be allowed to make himself defendant in the action at law instead of the original defendant, who shall be discharged from all liability to either of the other parties, in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof. If the claim of such third party extend to only a part of the subject matter of the action, similar proceedings may be had respecting the part so claimed, and the action shall proceed as to the residue as in other cases.

HISTORY: Codes, 1857, ch. 61, art. 174; 1871, § 656; 1880, § 1578; 1892, § 714; 1906, § 772; Hemingway’s 1917, § 555; 1930, § 564; 1942, § 1508; Laws, 1991, ch. 573, § 59, eff from and after July 1, 1991.

Cross References —

Method by which a third party may interpose a claim to property levied upon, see §§11-23-7 to11-23-29.

Claim of third person to attached property, see §11-33-69.

Conflicting claims to goods subject to bill of lading, warehouse receipt or other document of title, see §75-7-603.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Persons entitled to invoke statute.

3. Making third person a party.

4. Effect of interpleader.

5. Pleading.

6. Judgment or order.

7. Discharge of defendant.

1. In general.

Debtor, who could have invoked the protection of this section [Code 1942, § 1508], but failed to interplead creditor and garnishee, may not thereafter enjoin execution of judgment taken by creditor on indebtedness. Rose v. Brister, 145 Miss. 78, 111 So. 129, 1927 Miss. LEXIS 140 (Miss. 1927).

The interpleader provided for by this section [Code 1942, § 1508] is merely a substitute for an original bill of interpleader in equity and is governed by the same rules. McAlister Bros. & Co. v. Sanders, 107 Miss. 283, 65 So. 249, 1914 Miss. LEXIS 80 (Miss. 1914).

This statute was designed to protect the original defendants, if they desired to disclaim and become mere stakeholders for third persons who, they were informed, had an interest. McCracken v. Lewis, 89 Miss. 229, 42 So. 671 (Miss. 1906).

The statute applies to suits before justices of the peace and to actions for money arising under contracts, express or implied, as well as to suits for personal property. Moore v. Ernst, 54 Miss. 642, 1877 Miss. LEXIS 66 (Miss. 1877).

2. Persons entitled to invoke statute.

One having a right to interplead a claimant of a fund due by him must be a disinterested stakeholder not interested in the further contest of the liabilities or rights of the parties. Penn Mut. Life Ins. Co. v. Williams, 163 Miss. 324, 140 So. 875, 1932 Miss. LEXIS 46 (Miss. 1932).

Where the party summoned into court to maintain or relinquish his claim to a fund paid into court under an affidavit for interpleader makes a claim for a greater amount against the defendant than the original plaintiff made, and it flows out of the same contract or transaction, the defendant is not a disinterested stakeholder, and is not entitled to interplead such claimant under this section [Code 1942, § 1508]. Penn Mut. Life Ins. Co. v. Williams, 163 Miss. 324, 140 So. 875, 1932 Miss. LEXIS 46 (Miss. 1932).

Complainant attaching note in chancery held not entitled to be summoned in law action by note holder against maker. Delta Ins. & Realty Co. v. Fourth Nat'l Bank, 127 Miss. 152, 89 So. 817, 1921 Miss. LEXIS 207 (Miss. 1921).

In action of replevin by a tenant against his landlord’s agent who held possession of the property involved for the landlord, the agent was not compelled to resort to this section, although he might do so if he desired, it being incumbent upon the plaintiff to prove the right of immediate possession in himself. Scarborough v. Lucas, 119 Miss. 128, 80 So. 521, 1918 Miss. LEXIS 18 (Miss. 1918).

Where a person claimed an individual joint interest in property replevied, his remedy is not by intervention but by a suit in equity. McCracken v. Lewis, 89 Miss. 229, 42 So. 671 (Miss. 1906).

A defendant, sued upon a contract for the price of timber cut, can interplead a third person who claims ownership of the land and of the trees cut therefrom. Boyle v. Manion, 74 Miss. 572, 21 So. 530, 1896 Miss. LEXIS 180 (Miss. 1896).

On the trial of a motion by plaintiff against a sheriff for failure to pay over money realized under execution, it is proper to allow the officer to withdraw his plea and make an affidavit for substitution of a claimant of the fund as the real party in interest. Kohlman v. First Nat'l Bank, 71 Miss. 843, 15 So. 131, 1894 Miss. LEXIS 37 (Miss. 1894).

3. Making third person a party.

The act of the original defendant does not make a third person a party; an order of court is necessary. Ettringham v. Handy, 60 Miss. 334, 1882 Miss. LEXIS 58 (Miss. 1882).

4. Effect of interpleader.

When insurance company, defendant in suit on life insurance policy by person named as secondary beneficiary in policy, proceeds under this section [Code 1942, § 1508] by interposing its affidavit that third party is claiming proceeds of policy by change of beneficiary and pays money into court, provision of policy that change of beneficiary must be endorsed on face of policy is waived insofar as insurance company is concerned. Gayden v. Kirk, 207 Miss. 861, 43 So. 2d 568, 1949 Miss. LEXIS 397 (Miss. 1949), modified, 208 Miss. 283, 44 So. 2d 410, 1950 Miss. LEXIS 247 (Miss. 1950).

When defendant invokes the provisions of this section [Code 1942, § 1508], he thereby admits liability and that the property sought to be recovered is due either to the plaintiff or the third person claimant, and agrees to pay it over to whichever of these parties the court should direct. McAlister Bros. & Co. v. Sanders, 107 Miss. 283, 65 So. 249, 1914 Miss. LEXIS 80 (Miss. 1914).

5. Pleading.

Where an interpleader brings in irrelevant matter in the statement of his claim such irrelevant matter should be disregarded and is not a ground for demurrer. Caston v. Turner, 95 Miss. 303, 48 So. 721, 1909 Miss. LEXIS 235 (Miss. 1909).

6. Judgment or order.

A person filing an interpleader cannot afterwards claim that the judgment of the court was erroneous in directing payment to one of the defendants interpleading. McAlister Bros. & Co. v. Sanders, 107 Miss. 283, 65 So. 249, 1914 Miss. LEXIS 80 (Miss. 1914).

7. Discharge of defendant.

Where insurance company interpleaded rival claimants and newly joined claimant sought greater recovery than company admitted, discharge of insurance company before issues were made up was error. Williams v. Penn Mut. Life Ins. Co., 160 Miss. 408, 133 So. 649, 1931 Miss. LEXIS 163 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Assertion of fiduciary status of party to litigation as basis for intervention by one claiming interest in fruits thereof as trust beneficiary. 2 A.L.R.2d 227.

Am. Jur.

44B Am. Jur. 2d, Interpleader §§ 1- 7 et seq.

19 Am. Jur. Pl & Pr Forms (Rev), Parties, Form 251.2 (Third-party complaint – Under federal rule or corresponding state rule – By defendant owner of building in which fatal shooting occurred – Against victim’s employer).

CJS.

48 C.J.S., Interpleader §§ 12 et seq.

§ 11-23-3. Third party proceeding applicable to officers.

The provisions of the Section 11-23-1 shall be applicable to any action brought in a circuit court against a sheriff or other officer for the recovery of personal property taken by him under executions or attachment, or for the proceeds of property so taken and sold by him; and the defendant in any such action shall have the benefit of said provisions against the party in whose favor the execution or attachment issued by making affidavit that the property, for the recovery of which or its proceeds the action is brought, was taken under process, describing it; and in such case the judgment of the court shall be framed to effect justice between the parties according to their rights.

HISTORY: Codes, 1857, ch. 61, art. 175; 1871, § 657; 1880, § 1579; 1892, § 715; 1906, § 774; Hemingway’s 1917, § 557; 1930, § 566; 1942, § 1509.

Cross References —

Motions against officers of the court for money collected and not paid over, see §9-7-89.

Remedy against officer for failure to deliver any fine, forfeiture, or penalty into the county treasury, see §11-7-219.

Proceedings against attorneys for money collected for clients, but not paid over, see §11-49-3.

Issuance of executions by clerks of court, see §13-3-111.

Failure by sheriff to pay over money collected by virtue of execution or attachment, or omission to execute process, see §§19-25-45 to19-25-49.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In a judgment obtained by the widow for the benefit of the children the children are co-plaintiffs with the widow, the sheriff owes them the same duty he does the widow and he has notice of their interests. Kelly v. Howard, 98 Miss. 543, 54 So. 10, 1910 Miss. LEXIS 93 (Miss. 1910); Howard v. Kelly, 111 Miss. 285, 71 So. 391, 1916 Miss. LEXIS 287 (Miss. 1916).

On trial of a motion by a plaintiff against a sheriff for failure to pay over money realized under execution, it is proper under this section [Code 1942, § 1509] to allow the officer to withdraw his plea and make an affidavit for substitution of a claimant of the fund as the real party in interest. Kohlman v. First Nat'l Bank, 71 Miss. 843, 15 So. 131, 1894 Miss. LEXIS 37 (Miss. 1894).

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees § 389.

§ 11-23-5. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 61, art. 177; 1871, § 659; 1880, § 1580; 1892, § 716; 1906, § 774; Hemingway’s 1917, § 557; 1930, § 566; 1942, § 1510]

Editor’s Notes —

Former §11-23-5 provided that third party proceedings were applicable to offices, and provided for notice when the plaintiff was a nonresident.

§ 11-23-7. Claim to property levied on; how interposed.

When any person not a party to the execution shall claim to be the owner of or to have a lien on any personal property levied upon, such person may make affidavit to his right or title to the property, and may enter into bond, payable to the plaintiff in the execution, with one or more sufficient sureties, in the penalty of double the value of the property claimed, or in double the amount of the execution, if that be less than the value of the property, to be estimated by the officer holding the execution, and indorsed thereon, conditioned for the prosecution of the claim with effect, or, in case of failure therein, for the payment to the plaintiff in the execution of all damages that may be awarded against the claimant, and for the delivery of the property to the proper officer; and upon the making of the affidavit and bond, the officer holding the execution shall receive the same, and shall deliver the property to the claimant, and return the affidavit and bond with the execution. The claim may be interposed without giving bond, and the same proceedings be had thereon except that the property claimed shall not be delivered to the claimant, but shall be sold, as provided in case of property of like kind seized in replevin, or, if not such as should be sold, shall be held by the officer. The bond of the claimant shall stand as security to the parties to the action and judgment may be rendered on it according to the exigency.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 1 (25); 1857, ch. 61, art. 295; 1871, § 858; 1880, § 1774; 1892, § 4425; 1906, § 4990; Hemingway’s 1917, § 3264; 1930, § 3424; 1942, § 1021.

Cross References —

Jurisdiction of county courts, generally, see §9-9-21.

Proceedings in replevin, attachment, or as to liens before a justice of the peace, see §11-9-135.

Proceedings when third person claims subject of action, see §11-23-1.

Claim of third party to attached property being governed by procedure herein, see §11-33-69.

Third person’s interposition of claim to attached property, see §11-33-69.

Time limit for issuance of executions on judgments, see §13-3-111.

How executions shall be issued and returned, see §13-3-113.

Requirement of bond of indemnity for levy, see §13-3-157.

Duty of officer to examine judgment-roll prior to payment of money for sale of property, see §13-3-181.

Claim by third person interested in property upon which a lien is being enforced, see §85-7-49.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Claimant’s issue and right to bring third person and defendant in execution is not triable under Code 1906 §§ 4990-5001, where plaintiff in execution fails to establish that personal property seized is liable to execution. Scruggs v. Electric Paint & Varnish Co., 140 Miss. 615, 105 So. 745 (Miss. 1925).

Where claimant gave bond for attached property and judgment was rendered against him and his sureties, adjudication of claimant as bankrupt does not discharge the liability of claimant and has sureties on the bond. Sanderson v. Buckley, 111 Miss. 748, 72 So. 148, 1916 Miss. LEXIS 382 (Miss. 1916).

Claimant or intervener in attachment is not required to join issue until final judgment. Mahaffey Co. v. Russell & Butler, 100 Miss. 122, 54 So. 807, 1911 Miss. LEXIS 92 (Miss. 1911).

Where the contest is between claimants of property and the seller thereof, Code 1906 §§ 163, 3080, so far as applicable may be used the same as if suit arose in attachment. Quillin v. Paine, 94 Miss. 696, 47 So. 898, 1909 Miss. LEXIS 332 (Miss. 1909).

The Supreme Court has jurisdiction of an appeal by a claimant where the property claimed exceeds fifty dollars in value and has been, by the circuit court on appeal from a justice’s court, subjected to an execution for more than that sum, although the amount in controversy in the original suit was less than fifty dollars. Andrews v. Partee, 79 Miss. 80, 29 So. 788, 1901 Miss. LEXIS 9 (Miss. 1901).

The assignee of a landlord’s claim for rent is entitled to the remedy by claimant’s issue under this section [Code 1942, § 1021]. Thomas v. Shell, 76 Miss. 556, 24 So. 876, 1898 Miss. LEXIS 108 (Miss. 1898).

The remedy provided in this section [Code 1942, § 1021] to enforce a lien on property seized under execution existed under Code of 1880, § 1774. Trice v. Walker, 71 Miss. 968, 15 So. 787, 1894 Miss. LEXIS 10 (Miss. 1894).

The plaintiff must fail in the trial of this issue whether claimant has title or lien or not, unless plaintiff shows the property liable to his execution. Trice v. Walker, 71 Miss. 968, 15 So. 787, 1894 Miss. LEXIS 10 (Miss. 1894).

An affidavit in conformity with this section [Code 1942, § 1021] is sufficient foundation for the claim of a third person replevying property attached for rent and advances. Watkins v. Duvall, 69 Miss. 364, 13 So. 727, 1891 Miss. LEXIS 150 (Miss. 1891).

After a levy upon property claimed by a third party, subsequent levies upon other property to the full amount of the execution, though irregular, will not affect the original levy. Davis v. Netterville, 68 Miss. 429, 10 So. 32, 1890 Miss. LEXIS 83 (Miss. 1890).

The statute does not apply to a special execution in replevin. Andrews v. McLeod, 66 Miss. 348, 6 So. 181, 1889 Miss. LEXIS 104 (Miss. 1889).

The court from which the execution issued alone has jurisdiction of the claimant’s issue. Clark v. Clinton, 61 Miss. 337, 1883 Miss. LEXIS 133 (Miss. 1883).

If the claim be dismissed by the court for failure to file the proper affidavit, the dismissal is a determination of the claim, and a failure to deliver the property a breach of the claimant’s bond. Higdon v. Vaughn, 58 Miss. 572, 1880 Miss. LEXIS 160 (Miss. 1880).

A claim cannot be maintained for an undivided interest in personalty. Willis v. Loeb, 59 Miss. 169, 1881 Miss. LEXIS 94 (Miss. 1881).

OPINIONS OF THE ATTORNEY GENERAL

Section 11-23-7 prescribes procedures to be followed when a third party makes a claim of ownership in or claims a lien on the property being levied on. In such case the third party may hold up the execution by posting bond. Richardson, September 13, 1995, A.G. Op. #95-0229.

RESEARCH REFERENCES

ALR.

Constitutionality, construction, and application of statute as to effect of taking appeal, or staying execution, on right to redeem from execution or judicial sale. 44 A.L.R.4th 1229.

Am. Jur.

30 Am. Jur. 2d, Executions § 167.

CJS.

33 C.J.S., Executions §§ 516-523.

§ 11-23-9. Execution stayed for value of property claimed, unless.

Further proceedings on the execution shall be stayed for an amount equal to the value of the property claimed, as returned by the officer, until final decision of the claim; and on all subsequent executions issued on the judgment prior to the final decision of the claim, the clerk shall indorse the amount of the estimated value for the government of the officer to whom the same may be directed; but the plaintiff may dismiss the levy, and have execution as if it were never made.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 8 (2); 1857, ch. 61, art. 296; 1871, § 859; 1880, § 1775; 1892, § 4426; 1906, § 4991; Hemingway’s 1917, § 3265; 1930, § 3425; 1942, § 1022.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

ALR.

Constitutionality, construction, and application of statute as to effect of taking appeal, or staying execution, on right to redeem from execution or judicial sale. 44 A.L.R.4th 1229.

§ 11-23-11. Issue to be made up.

Upon the return of the execution with the affidavit and bond, if any, the court shall, on motion of the plaintiff in execution, direct an issue to be made up between the parties to try the right of property at the same term, unless good cause be shown for a continuance.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 1 (25); 1857, ch. 61, art. 295; 1871, § 858; 1880, § 1774; 1892, § 4427; 1906, § 4992; Hemingway’s 1917, § 3266; 1930, § 3426; 1942, § 1023.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Claimant’s issue must be made up at the return term. White v. Roach, 98 Miss. 309, 53 So. 622, 1910 Miss. LEXIS 63 (Miss. 1910).

If an issue be made and a trial had, it will be presumed to have been made under the direction of the court. McAnulty v. Bingaman, 7 Miss. 382, 1842 Miss. LEXIS 54 (Miss. 1842); Phillips v. Cooper, 50 Miss. 722, 1874 Miss. LEXIS 111 (Miss. 1874).

Where several executions are levied, there should be separate issues, trials and judgments. McAnulty v. Bingaman, 7 Miss. 382, 1842 Miss. LEXIS 54 (Miss. 1842).

§ 11-23-13. Default in making up issue.

If by default of the plaintiff in execution an issue for the trial of the right of property be not made up at the term to which the execution is returnable, the court shall discharge the claimant from his bond, and the property shall not thereafter be subject to execution on plaintiff’s judgment; but if the claimant fail to join issue when tendered at the first term, the court, at the instance of the plaintiff in execution, shall order a writ of inquiry as to the value of the property, and also to inquire whether or not the claim was made for fraudulent purposes or for purposes of delay.

HISTORY: Codes, 1857, ch. 61, art. 297; 1871, § 860; 1880, § 1776; 1892, § 4428; 1906, § 4993; Hemingway’s 1917, § 3267; 1930, § 3427; 1942, § 1024.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Trial court may allow judgment creditor to join issue on third party claim after expiration of term to which garnishment was returnable and at which claim was filed. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

Trial court’s decision allowing judgment creditor to join issue on third party claim after term to which garnishment is returnable is reviewable only in case of abuse of discretion. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

Plaintiff’s failure to make issue at return term to try claimant’s right to funds in garnishee’s hands held not to constitute “default.” Piqua Sav. Bank v. Copiah Hardware Co., 146 Miss. 581, 111 So. 836, 1927 Miss. LEXIS 225 (Miss. 1927).

Claimant’s issue must be made up at return term. White v. Roach, 98 Miss. 309, 53 So. 622, 1910 Miss. LEXIS 63 (Miss. 1910).

It is the duty of both plaintiff in execution and claimant to see that issue is joined as provided by this section [Code 1942, § 1024] and if either fails to do so it cannot be done afterwards, but only such proceedings can be had as the statute provides upon default of plaintiff or claimant, as the case may be. Bedford, French & Goodwin Co. v. W. T. Adams Mach. Co., 93 Miss. 537, 47 So. 429, 1908 Miss. LEXIS 135 (Miss. 1908).

It is the duty of the plaintiff to see that the sheriff returns the execution with the claimant’s affidavit and bond, if any, by a day early enough to have an issue made up and tried at the return term of the execution. Sears v. Gunter, 39 Miss. 338, 1860 Miss. LEXIS 53 (Miss. 1860).

§ 11-23-15. Burden of proof on plaintiff; trial of issue.

On the trial of the issue, the burden of proof shall be on the plaintiff in execution, and the issue shall be tried as in ordinary actions at law, and either party shall have the same rights as in other trials. The jury trying the issue, in case it find in favor of the plaintiff in execution, shall assess the value of the property subject to the execution, and shall certify whether the claim was made for fraudulent purposes or for delay. The valuation of the officer taking the bond of the claimant shall be prima facie evidence of the value of the property; and in case the jury fail to find the value of the property, the plaintiff may, at his election, take judgment for the value as returned by the officer, or have a writ of inquiry.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 1 (25); 1857, ch. 61, art. 298; 1871, § 861; 1880, § 1777; 1892, § 4429; 1906, § 4994; Hemingway’s 1917, § 3268; 1930, § 3428; 1942, § 1025.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. Burden of proof.

2. Evidence necessary.

3. Value of property.

4. Jury to assess value.

1. Burden of proof.

Upon the issue of the trial of the rights of property, the burden of proof was upon the judgment creditor to show that the property seized under execution was the property of the judgment debtor, and the introduction of a decree against the judgment debtor was not sufficient to establish ownership against the claimants. Martin v. McGraw, 190 So. 2d 442, 1966 Miss. LEXIS 1387 (Miss. 1966).

A plaintiff in execution, upon the trial of the claimant’s issue, must produce evidence of his right to proceed against the property before claimant can put to defense. Reed v. General Motors Acceptance Corp., 228 Miss. 121, 87 So. 2d 95, 1956 Miss. LEXIS 494 (Miss. 1956).

Where a judgment debtor transferred his automobile to his wife prior to execution thereon, giving rise to question that if the automobile was exempt to the judgment debtor, his wife got it free from the judgment, and if the judgment debtor claimed the exemption given by Code 1942, § 1755, he was not entitled to the exemption provided by Code 1942, § 1766, and vice versa, the trial court erred in rendering judgment for the judgment creditor on the theory that the burden to resolve such question was on the claimant. Reid v. Halpin, 185 Miss. 396, 188 So. 310, 1939 Miss. LEXIS 165 (Miss. 1939).

On trial of claimant’s issue burden of proof is on plaintiff in attachment. Third Nat'l Bank v. Reeves Grocery Co., 113 Miss. 35, 73 So. 866, 1916 Miss. LEXIS 6 (Miss. 1916).

It is error to instruct the jury that the judgment sustaining the attachment is prima facie evidence against the claimant, and places the burden of proof on him to show that he is a bona fide purchaser. The burden is always on the plaintiff to show that the goods are liable to his attachment. Ott v. Smith, 68 Miss. 773, 10 So. 70 (Miss. 1891).

If the plaintiff fail to show that the property is liable to his execution, he cannot recover, even though claimant have no title. Ross v. Garey, 8 Miss. 47, 1843 Miss. LEXIS 56 (Miss. 1843); Luther v. Borden, 48 U.S. 1, 12 L. Ed. 581, 1849 U.S. LEXIS 337 (U.S. 1849); Thornhill v. Gilmer, 12 Miss. 153, 1845 Miss. LEXIS 8 (Miss. 1845); Selser v. Ferriday, 21 Miss. 698, 1850 Miss. LEXIS 88 (Miss. 1850).

2. Evidence necessary.

In order to recover plaintiff must offer in evidence the judgment on which the execution was issued, the execution itself and the officer’s return thereon. Beeson-Moore Motor Co. v. Catlett, 128 Miss. 865, 91 So. 564, 1922 Miss. LEXIS 170 (Miss. 1922).

On the trial of a claimant’s issue for property levied upon under execution the plaintiff cannot recover without offering in evidence the judgment upon which the execution was issued. Blalack v. Stevens, 81 Miss. 711, 33 So. 508, 1902 Miss. LEXIS 201 (Miss. 1902).

On the trial of the issue, the judgment of the plaintiff against the defendant in attachment is a part of the record, and need not be offered in evidence. French v. Sale, 60 Miss. 516, 1882 Miss. LEXIS 92 (Miss. 1882).

On the trial the execution and levy is a necessary part of the plaintiff’s evidence. Ross v. Garey, 8 Miss. 47, 1843 Miss. LEXIS 56 (Miss. 1843).

The affidavit is not a part of the record unless made so by a bill of exceptions. Ross v. Garey, 8 Miss. 47, 1843 Miss. LEXIS 56 (Miss. 1843).

3. Value of property.

The value is to be fixed as of the day of trial. Selser v. Ferriday, 21 Miss. 698, 1850 Miss. LEXIS 88 (Miss. 1850).

4. Jury to assess value.

The jury must assess the separate value of each article. Penrice v. Cocks, 2 Miss. 227, 1835 Miss. LEXIS 11 (Miss. 1835); Walker v. Commissioners of Sinking Fund, 9 Miss. 372, 1843 Miss. LEXIS 170 (Miss. 1843); Pritchard v. Myers, 11 Miss. 42, 1844 Miss. LEXIS 41 (Miss. 1844); Kibble v. Butler, 22 Miss. 207, 1850 Miss. LEXIS 124 (Miss. 1850).

RESEARCH REFERENCES

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Contracts, Form 22 (Instruction to jury – Third-party beneficiaries).

§ 11-23-17. The judgment.

If the verdict be in favor of the plaintiff in execution, either on an issue joined or on an inquiry by default, or in case the plaintiff take judgment by default, and elect to take the value as returned by the officer, the court shall render judgment against the claimant and the sureties on his bond, for the restoration of the specific property to the officer, if to be had, and, if not, for the payment of its value not exceeding the amount of the original judgment to the plaintiff, and all costs. If the jury find that the claim was made for fraudulent purposes, or for delay, the judgment shall also award the plaintiff ten per centum damages on the value of the property. If the property be restored to the officer, it shall be sold, under a venditioni exponas to be issued for that purpose, as if the claim had not been made. If bond be not given, and the property or its proceeds be in the hands of the officer, the judgment may be modified accordingly. If the verdict be in favor of the claimant, he shall recover his costs, the levy shall be removed, the claimant shall be discharged from his bond, and the property shall not thereafter be subject to execution on plaintiff’s judgment.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 8 (6-9); 1857, ch. 61, art. 299; 1871, § 862; 1880, § 1778; 1892, § 4430; 1906, § 4995; Hemingway’s 1917, § 3269; 1930, § 3429; 1942, § 1026.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Measure of recovery.

3. Sureties.

4. Costs.

1. In general.

Court erroneously ordered claimant of property levied upon, who procured property upon executing bond, to surrender truck to plaintiff in execution. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, 1929 Miss. LEXIS 175 (Miss. 1929).

A plaintiff in execution who, on a claimant’s issue, failed to show his right to subject the property cannot, after judgment in favor of several claimants thereof, object to the misjoinder of issues or to errors in the judgment as between the several claimants. Goyer Cold-Storage Co. v. Wildberger, 71 Miss. 438, 15 So. 235, 1893 Miss. LEXIS 92 (Miss. 1893).

The recovery of a successful plaintiff in a claimant’s issue is not invalid because it exceeds the amount of the original judgment with interest and costs. Payment of such amount will be satisfaction and the court of its own motion will protect the claimant as against any excess. Johnston v. Standard Oil Co., 71 Miss. 397, 14 So. 533, 1893 Miss. LEXIS 194 (Miss. 1893).

If a claim be interposed by a trustee in a deed in trust, the plaintiff may prove that the deed in trust was satisfied pending the suit; and in that case he should have judgment for the property, without costs which accrued before the satisfaction. Helm v. Gray, 59 Miss. 54, 1881 Miss. LEXIS 74 (Miss. 1881).

The jury should not find that the claim was sued out for fraudulent purposes or delay unless there be evidence to that effect. McAnulty v. Bingaman, 7 Miss. 382, 1842 Miss. LEXIS 54 (Miss. 1842).

2. Measure of recovery.

Where the wife of the judgment debtor claimed the automobile levied upon by judgment creditors, the measure of the liability of the wife on her claim of fraud, if the judgment creditors should recover a judgment on another trial, would be the value of the automobile at the time the judgment became a lien thereon, less the amount of the unpaid purchase money due and to become due. Reid v. Halpin, 185 Miss. 396, 188 So. 310, 1939 Miss. LEXIS 165 (Miss. 1939).

If the judgment creditors should recover a judgment on another trial, after reversal of judgment in their favor based upon an erroneous theory of burden of proof, the measure of the liability of the claimant on her bond would be the value of the automobile at the time the judgment became a lien thereon, less the amount of the unpaid purchase price due and to become due. Reid v. Halpin, 185 Miss. 396, 188 So. 310, 1939 Miss. LEXIS 165 (Miss. 1939).

Judgment in favor of a successful plaintiff in a claimant’s issue should be for the value of the property at the time of trial, not at the time it was received by the claimant. Johnston v. Standard Oil Co., 71 Miss. 397, 14 So. 533, 1893 Miss. LEXIS 194 (Miss. 1893).

3. Sureties.

The sureties on a claimant’s bond cannot assign errors in the suit between the plaintiff and his debtor. Atkinson v. Foxworth, 53 Miss. 741, 1876 Miss. LEXIS 143 (Miss. 1876); Higdon v. Vaughn, 58 Miss. 572, 1880 Miss. LEXIS 160 (Miss. 1880).

The sureties subject themselves to the authority of the court. They are parties to the suit, not in the sense of participating in the litigation between the plaintiff and the claimant, but they may show any reason good in law why the bond should not be forfeited. Atkinson v. Foxworth, 53 Miss. 741, 1876 Miss. LEXIS 143 (Miss. 1876).

4. Costs.

If the plaintiff succeeded as to a part of the property he is entitled to recover costs. Clarke v. Parker, 63 Miss. 549, 1886 Miss. LEXIS 136 (Miss. 1886).

§ 11-23-19. Laws applicable in case of death.

All the provisions of law in reference to the death of either party, and the revival of the cause, in personal actions, and the death of any of the obligors, in a bond given in the progress of a cause, and the proceedings thereon before or after judgment, shall apply to proceedings under Sections 11-23-7 through 11-23-29; but in case the claimant shall die before judgment, and there be no representative of his estate, judgment shall be entered against the sureties on his bond for the property, or the value thereof, as assessed by the sheriff, or to be found by the verdict of a jury impaneled to inquire of the same, at the option of the plaintiff, with interest on such value from the date of the claimant’s bond.

HISTORY: Codes, 1857, ch. 61, arts. 300, 301, 302; 1871, §§ 863, 864, 865; 1880, §§ 1779, 1780; 1892, § 4431; 1906, § 4996; Hemingway’s 1917, § 3270; 1930, § 3430; 1942, § 1027.

Cross References —

Proceedings in case of the death of party or surety on bond generally, see §§11-1-29 through11-1-35.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-23-21. New bond may be required.

If the sureties on the claimant’s bond shall become insufficient, the court, on motion of the plaintiff, may require the claimant to give a new bond or to surrender to the officer the property claimed. If new bond be given, the sureties thereon shall be jointly liable with the sureties on the first bond, but if the claimant fail to give a new bond and to surrender the property, judgment shall be rendered against him and the sureties on his bond as by default. If the claimant surrender the property as required, the sureties on the bond given shall thereby be discharged, and the cause shall be proceeded with as if the officer had retained the property in the first instance.

HISTORY: Codes, 1857, ch. 61, art. 303; 1871, § 866; 1880, § 1781; 1892, § 4432; 1906, § 4997; Hemingway’s 1917, § 3271; 1930, § 3431; 1942, § 1028.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-23-23. Venue changed in certain cases.

If the claimant shall not be a resident of the county in which the execution is issued, and the property be levied on in the county of his residence, the venue for the trial of the issue may be changed, on his application, to the circuit court of the county of his residence, and the result shall be certified to the court. The procedure governing a claimant’s objection to venue and transfer thereof shall be as provided for in the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1880, § 1782; 1892, § 4433; 1906, § 4998; Hemingway’s 1917, § 3272; 1930, § 3432; 1942, § 1029; Laws, 1991, ch. 573, § 60, eff from and after July 1, 1991.

Cross References —

Venue in circuit court generally, see §11-11-3.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-23-25. Proceedings in justice’s court.

If the claim be interposed in a court of a justice of the peace, on filing the affidavit and bond, or the affidavit, if a bond be not given, the justice shall fix a day for the trial, and give notice thereof to the parties.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 11 (5); 1857, ch. 58, art. 31; 1871, § 1338; 1880, § 2227; 1892, § 4434; 1906, § 4999; Hemingway’s 1917, § 3273; 1930, § 3433; 1942, § 1030.

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 —

Civil jurisdiction of justices of the peace, generally, see §9-11-9.

JUDICIAL DECISIONS

1. In general.

The justice of the peace has jurisdiction to try the claim to property levied on under execution from his court, although the value of the property exceed two hundred dollars. Clark v. Clinton, 61 Miss. 337, 1883 Miss. LEXIS 133 (Miss. 1883); Bernheimer v. Martin, 66 Miss. 486, 6 So. 326, 1889 Miss. LEXIS 133 (Miss. 1889).

§ 11-23-27. Form of a claimant’s affidavit.

A claimant’s affidavit may be in the following form, viz.:

State of Mississippi, County: “Before me, , a justice of the peace of said county, makes oath that a certain [here describe the property], levied on by virtue of an execution in favor of against , issued by , a justice of the peace of said county, on the day of , A. D. , and now in the hands of , a of county, under said execution, is the property of affiant, and is not the property of . “Sworn to and subscribed before me, , A. D. , J. P.”

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HISTORY: Codes, 1880, § 2257; 1892, § 4435; 1906, § 5000; Hemingway’s 1917, § 3274; 1930, § 3434; 1942, § 1031.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 11-23-29. Form of a claimant’s bond.

A claimant’s bond may be in the following form, viz.:

“We, , principal, and and , sureties, bind ourselves to pay dollars, unless the said shall prosecute with effect his claim to a [here describe the property], levied on by virtue of an execution issued on the day of , A.D. , by court of county, in favor of against , returnable before the court on the day of , A.D. , and valued at dollars: or, in case he fail therein, shall pay to the said all such damages as may be awarded against the said , in case his claim shall not be sustained, and shall deliver the same property to the officer having said execution, if the claim thereto shall be determined against the said . “Witness our hands, this day of , A. D. . “ , “ , “ , “I approve the foregoing bond and sureties, this the day of , A.D. . Sheriff.”

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HISTORY: Codes, 1880, § 2558; 1892, § 4436; 1906, § 5001; Hemingway’s 1917, § 3275; 1930, § 3435; 1942, § 1032.

Chapter 25. Unlawful Entry and Detainer

Article 1. Proceedings Before Justice Court.

§ 11-25-1. In what cases a remedy.

Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(2); 1857, ch. 42, arts. 2, 3; 1871, § 1582; 1880, § 2645; 1892, § 4461; 1906, § 5039; Hemingway’s 1917, § 3311; 1930, § 3456; 1942, § 1033.

Cross References —

Provision granting exclusive jurisdiction of unlawful entry and detainer proceedings to county courts, see §9-9-21.

Jurisdiction of county court generally, see §9-9-21.

Actions in ejectment, see §11-19-1.

Parallel provision, see §11-25-101.

Appeal in cases of unlawful entry and detainer, see §11-51-83.

Limitation of actions concerning land, see §15-1-7.

Rule that right of entry is not tolled by death of disseizor, see §89-1-19.

JUDICIAL DECISIONS

1. In general.

2. Foreclosure proceedings.

1. In general.

Grantees of a purchaser at a deed of trust foreclosure sale were entitled to maintain an action of unlawful entry and detainer under this section [Code 1942, § 1033] against the grantors under the deed of trust who remained in, and refused to surrender, possession of the property after the deed of trust was foreclosed, and could recover compensation for the use and occupancy of the property. Martin v. Leslie, 229 Miss. 656, 91 So. 2d 743, 1957 Miss. LEXIS 310 (Miss. 1957).

2. Foreclosure proceedings.

Creditor properly brought its claim before a justice court, and then appealed to the circuit court, even though a debtor’s estate was still open because creditor’s action was purely a possessory action. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 4, 10, 11, 33.

12 Am. Jur. Pl & Pr Forms (Rev), Forcible Entry and Detainer, Forms 11 et seq. (complaints in summary proceedings to recover possession of realty).

21 Am. Jur. Proof of Facts 2d 567, Forcible Entry and Detainer: Requisite Right, Title or Possession of Plaintiff.

21 Am. Jur. Proof of Facts 2d 607, Forcible Entry and Detainer: Requisite Force by Defendant.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 21-32.

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-3. Purchaser at sale for taxes.

The purchaser of land at a sale for taxes, or his vendee, after two years from the date of the sale for taxes, and within three years from such date, may bring the action of unlawful detainer, for the recovery of possession of the land; and a judgment in his favor in the action shall be a bar to any action in any court brought after one year from the date of such judgment, to controvert the tax title to the land, saving the rights of infants and persons of unsound mind to redeem the same.

HISTORY: Codes, 1880, § 538; 1892, § 4461a; 1906, § 5040; Hemingway’s 1917, § 3312; 1930, § 3457; 1942, § 1034.

Cross References —

A definition of the term “infant”, see §1-3-21.

Proceedings to confirm tax title, see §11-17-1.

Parallel provision, see §11-25-103.

Rule that three years’ occupation under a tax title bars a suit assailing such title, see §15-1-15.

Redemption of land sold for taxes, see §27-45-3 et seq.

Rights of a purchaser of lands at a tax sale, see §27-45-27.

JUDICIAL DECISIONS

1. In general.

A tenant who, during his tenancy, obtains a tax title to the leased premises from the tax purchaser is precluded from asserting the tax title during the continuance of his tenancy, although the tax sale took place prior to his tenancy, but such estoppel is terminated when he surrenders possession of the premises to his landlord. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947); James v. Shaffer, 202 Miss. 565, 32 So. 2d 749, 1947 Miss. LEXIS 318 (Miss. 1947).

The plaintiff in an action under this section [Code 1942, § 1034] is only required to show that he has a tax deed to the property and that the action is brought within the prescribed period of time; validity of the tax title is not in issue, unless the tax deed is void on its face. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

Preliminary notice to vacate the premises need not be given tenants of one who was the owner prior to tax sale. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 4, 10, 11, 33.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 21-32.

§ 11-25-5. The complaint.

The party turned out of possession, or held out of possession, may exhibit his complaint before the clerk of the justice court of the county within which the lands, or some part thereof, may lie, to the following effect:

“County of , to wit: “AB, of said county, complains that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, whereof he prays the possession. AB, Plaintiff.” The complaint shall be verified by the oath or affirmation of the plaintiff, certified at the foot thereof, after the following manner: “County of , to wit: “This day the above-named AB made oath (or affirmed) before me, the clerk of the justice court for said county, that the allegations of the above complaint are correct and true. “Given under my hand, this day of , A.D. . EF, Clerk of the Justice Court.”

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HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(4); 1857, ch. 42, art. 4; 1871, § 1583; 1880, § 2646; 1892, § 4462; 1906, § 5041; Hemingway’s 1917, § 3313; 1930, § 3458; 1942, § 1035; Laws, 1982, ch. 423, § 16.

Cross References —

Civil jurisdiction of justices of the peace, generally, see §9-11-9.

Parallel provision, see §11-25-105.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 32, 34, 38.

§ 11-25-7. The warrant.

The clerk of the justice court before whom the complaint is made shall thereupon issue a warrant to the following effect:

“The State of Mississippi “To the Sheriff of County: “WHEREAS, AB hath made complaint on oath (or affirmation), before me, the clerk of the justice court for the said county, that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, and hath prayed the possession thereof, this is therefore to command you to summon the said CD to appear at (which shall be at the usual place of holding the justice court of the justice court judge to whom the case is assigned), on the day of , before said justice court judge, to answer to the complaint, and have then there this warrant. “Witness my hand, this day of . EF, Clerk of the Justice Court”

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HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(6); 1857, ch. 42, art. 5; 1871, § 1584; 1880, § 2647; 1892, § 4463; 1906, § 5042; Hemingway’s 1917, § 3314; 1930, § 3459; 1942, § 1036; Laws, 1981, ch. 471, § 32; Laws, 1982, ch. 423, § 17.

Cross References —

Jurisdiction of county courts, generally, see §9-9-21.

Parallel provision, see §11-25-107.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 8, 33, 35, 37.

§ 11-25-9. Repealed.

Repealed by Laws, 1982, ch. 423, § 26, eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to Section 9-11-27(3).

[Codes, 1857, ch. 42, art. 23; 1871, § 1599; 1880, § 2661; 1892, § 4464; 1906, § 5043; Hemingway’s 1917, § 3315; 1930, § 3460; 1942, § 1037]

Editor’s Notes —

“Former §11-25-9 provided for the fining of justice for failure to attend proceeding.”

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

§ 11-25-11. How warrant directed and executed.

The warrant shall be directed to the sheriff or any constable of the proper county, as the case may require, and shall be made returnable on a day certain, not less than five (5) days nor more than twenty (20) days after its date, and shall be forthwith executed by the proper officer on the defendant, in the same manner as a summons is required to be served, by delivering a copy, and he shall make due return to the justice court judge to whom the case is assigned, at the time and place therein mentioned, of the manner in which he shall have executed the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(6); 1857, ch. 42, art. 6; 1871, § 1585; 1880, § 2648; 1892, § 4465; 1906, § 5044; Hemingway’s 1917, § 3316; 1930, § 3461; 1942, § 1038; Laws, 1982, ch. 423, § 18; Laws, 1986, ch. 459, § 22, eff from and after July 1, 1986.

Cross References —

Parallel provision, see §11-25-109.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 8, 33, 35, 37.

§ 11-25-13. Witnesses subpoenaed.

At any time after the warrant is issued, the clerk of the justice court or the justice court judge to whom the case is assigned may, upon application of either party, issue subpoenas for witnesses, requiring them to attend court before the justice court judge to whom the case is assigned at the time appointed, to give evidence on the trial.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(9); 1857, ch. 42, art. 8; 1871, § 1587; 1880, § 2659; 1892, § 4466; 1906, § 5045; Hemingway’s 1917, § 3317; 1930, § 3462; 1942, § 1039; Laws, 1982, ch. 423, § 19.

Cross References —

Fees of officers and witnesses in unlawful entry and detainer court, see §25-7-79.

§ 11-25-15. Depositions to be taken.

Depositions may be taken to be read on the trial, in the same manner and under the same circumstances as in cases before justices of the peace.

HISTORY: Codes, 1892, § 4467; 1906, § 5046; Hemingway’s 1917, § 3318; 1930, § 3463; 1942, § 1040.

Editor’s Notes —

Pursuant to Miss. Const., § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

§ 11-25-17. The court.

It shall be the duty of the justice court judge to whom the case is assigned, on the days specified, to hold a court for the trial of the complaint. The court shall be considered a court of record. It shall have power to issue alias writs for the defendant, and all proper process to bring before it witnesses or other persons whose attendance may be lawfully required; and may adjourn from day to day and from time to time until the trial shall be ended. The sheriff or constable, as the case may require, shall be attendant upon the court and execute its orders.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(10); 1857, ch. 42, art. 10; 1871, § 1588; 1880, § 2651; 1892, § 4468; 1906, § 5047; Hemingway’s 1917, § 3319; 1930, § 3464; 1942, § 1041; Laws, 1981, ch. 471, § 33; Laws, 1982, ch. 423, § 20; Laws, 1986, ch. 459, § 23, eff from and after July 1, 1986.

JUDICIAL DECISIONS

1. In general.

Where a court of unlawful entry and detainer was organized, composed of three justices of the peace, pursuant to a proceeding instituted in that behalf, and they appeared and served without objection, the court acquired jurisdiction of the subject matter, without regard to whether or not the two justices other than the one issuing the process had been summoned in the manner required by law, and the court was vested with authority to render a judgment in the cause. Amis v. Home Owners' Loan Corp., 192 Miss. 309, 5 So. 2d 425, 1941 Miss. LEXIS 39 (Miss. 1941).

The mayor of a municipality, being ex officio a justice of the peace within its territorial limits may participate in the trial of an action of unlawful detainer. Nickles v. Kendricks, 73 Miss. 711, 19 So. 582, 1896 Miss. LEXIS 194 (Miss. 1896); Smith v. Jones, 65 Miss. 276, 3 So. 740, 1887 Miss. LEXIS 53 (Miss. 1887).

If a defendant summoned in unlawful detainer appear on the return day before the justice who issued the warrant, and consent to a postponement of the case to a future day, and on the day fixed again appear before the said justice and another, who rendered judgment for the plaintiff, without objection from defendant, the judgment will be valid. McLemore v. Scales, 68 Miss. 47, 8 So. 844, 1890 Miss. LEXIS 72 (Miss. 1890).

Where the record shows that judgment was rendered several days after the return day of the writ, it will be presumed, if nothing appear to the contrary, that the court met on the return day and adjourned from day to day until the rendition of the judgment. Leavenworth v. Crittenden, 62 Miss. 573, 1885 Miss. LEXIS 111 (Miss. 1885).

The court, when it renders final judgment, is dissolved. It has no power to grant a new trial. Warren v. Trustees of African Baptist Church, 50 Miss. 223, 1874 Miss. LEXIS 48 (Miss. 1874).

The special court is, under the power conferred on the legislature to establish such “inferior courts as may be necessary,” a constitutional tribunal. Rabe v. Fyler, 18 Miss. 440, 1848 Miss. LEXIS 109 (Miss. 1848).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 12, 44, 46.

16 Am. Jur. Pl & Pr Forms (Rev), Landlord and Tenant, Form 176.1 (Complaint, petition, or declaration – To recover possession of premises – After statutory notice to quit).

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 96 et seq.

§ 11-25-19. The trial.

If on the day of court and at the place designated, it appears that the defendant has been duly served with the warrant, the justice court judge shall proceed, without further pleadings in writing, to the trial of the complaint.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(10); 1857, ch. 42, art. 11; 1871, § 1589; 1880, § 2652; 1892, § 4469; 1906, § 5048; Hemingway’s 1917, § 3320; 1930, § 3465; 1942, § 1042; Laws, 1982, ch. 423, § 21.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 12, 44, 46.

§ 11-25-21. Rent recoverable.

The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent of the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the justice court judge shall find, upon the evidence, the arrears of rent or reasonable compensation, and may give judgment against the defendant in the action for such arrears of rent or reasonable compensation, and award a writ of fieri facias thereon.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 16(1); 1857, ch. 42, art. 13; 1871, § 1590; 1880, § 2653; 1892, § 4470; 1906, § 5049; Hemingway’s 1917, § 3321; 1930, § 3466; 1942, § 1043; Laws, 1982, ch. 423, § 22.

Cross References —

Parallel provision, see §11-25-111.

When goods upon rented lands are liable to execution, see §89-7-1.

JUDICIAL DECISIONS

1. In general.

Grantees of a purchaser at a deed of trust foreclosure sale were entitled to maintain an action of unlawful entry and detainer under Code of 1942, § 1033, against the grantors under the deed of trust who remained in, and refused to surrender, possession of the property after the deed of trust was foreclosed, and could recover compensation for the use and occupancy of the property. Martin v. Leslie, 229 Miss. 656, 91 So. 2d 743, 1957 Miss. LEXIS 310 (Miss. 1957).

There can be no double rent in the absence of a notice to quit. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

Judgment may be entered for single rent and also for double rent under Code 1942, § 947. Firestone Tire & Rubber Co. v. Fried, 202 Miss. 370, 31 So. 2d 116, 1947 Miss. LEXIS 287 (Miss. 1947).

Judgment for double rent is limited to that which has accrued prior to rendition of judgment. Stewart v. Miller, 200 Miss. 188, 26 So. 2d 540, 1946 Miss. LEXIS 281 (Miss. 1946).

Under statute (Code 1942, § 947), allowing recovery of double rent against tenant holding over after notice, double rent may be recovered in an action of unlawful entry and detainer inasmuch as this section [Code 1942, § 1043] provides for the recovery in such an action of “any amount for arrears of rent.” Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer § 50.

CJS.

36A C.J.S., Forcible Entry and Detainer § 105.

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-23. Judgment for plaintiff and writ of possession.

If the finding be for the plaintiff, the justice court judge shall render judgment in favor of the plaintiff that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem; and the justice court judge may issue alias writs and enforce the judgment and punish for contempt of process thereon; but a writ of habere facias possessionem or execution shall not issue within five (5) days from the date of the judgment.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(15); 1857, ch. 42, art. 16; 1871, § 1591; 1880, § 2654; 1892, § 4471; 1906, § 5050; Hemingway’s 1917, § 3322; 1930, § 3467; 1942, § 1044; Laws, 1982, ch. 423, § 23.

Cross References —

Parallel provision, see §11-25-113.

Form of judgment for person claiming possession of the premises, see §89-7-41.

Record of the proceedings, and appeals, see §89-7-47.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 12, 45, 47 , 51.

12 Am. Jur. Pl & Pr Forms (Rev), Forcible Entry and Detainer, Forms 61-64, 69-71 (Judgments; writs of restitution or execution).

21 Am. Jur. Proof of Facts 2d 567, Forcible Entry and Detainer: Requisite Right, Title or Possession of Plaintiff.

CJS.

36A C.J.S., Forced Entry and Detainer §§ 91 et seq.

§ 11-25-25. Growing crops.

In case of forfeiture under contract of purchase, the purchaser, and in case of foreclosure of deeds in trust or mortgages, the mortgagor shall be entitled to cultivate and gather the crops, if any, planted by him and grown or growing on the premises at the time of the commencement of the suit; and shall, after eviction therefrom have the right to enter thereon for the purpose of completing the cultivation and removing the crops, first paying or tendering to the party entitled to the possession a reasonable compensation for the use of the land. The court may, on demand of the defendant, adjudge the sum to be paid or tendered.

HISTORY: Codes, 1892, § 4472; 1906, § 5051; Hemingway’s 1917, § 3323; 1930, § 3468; 1942, § 1045.

Cross References —

Rule that a growing crop is not subject to judgment lien, see §11-7-199.

Parallel provision, see §11-25-115.

Rule that a growing crop shall not be levied upon or attached, see §13-3-137.

Growing crops on decedent’s estate, see §91-7-169.

JUDICIAL DECISIONS

1. In general.

This section and Section 11-25-115, allowing mortgagor to cultivate and gather crops after foreclosure if crops were planted and growing at time of commencement of foreclosure suit, do not require that mortgagee commence action for unlawful entry and detainer. In re Hilburn, 62 B.R. 597, 1986 Bankr. LEXIS 5765 (Bankr. N.D. Miss. 1986).

RESEARCH REFERENCES

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-27. Judgment for defendant for costs.

If the finding be in favor of the defendant, the justices shall render judgment against the plaintiff that his complaint be dismissed, and the defendant recover of him full costs. The judgment of the justices, either in favor of the plaintiff or the defendant, shall be executed in the same manner as the judgment of any other court of record.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(15); 1857, ch. 42, art. 17; 1871, § 1592; 1880, § 2655; 1892, § 4473; 1906, § 5052; Hemingway’s 1917, § 3324; 1930, § 3469; 1942, § 1046.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Parallel provision, see §11-25-117.

RESEARCH REFERENCES

Am. Jur.

36A Am. Jur. 2d, Forcible Entry and Detainer §§ 46, 51.

12 Am. Jur. Pl & Pr Forms (Rev), Forcible Entry and Detainer, Forms 65-66 (Judgment for defendant).

21 Am. Jur. Proof of Facts 2d 607, Forcible Entry and Detainer: Requisite Force by Defendant.

CJS.

36A C.J.S., Forced Entry and Detainer § 106.

§ 11-25-29. Repealed.

Repealed by Laws, 1982, ch. 423, § 26, eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to Section 9-11-27(3).

[Codes, 1871, § 1593; 1880, § 2656; 1892, § 4474; 1906, § 5053; Hemingway’s 1917, § 3325; 1930, § 3470; 1942, § 1047]

Editor’s Notes —

“Former §11-25-29 specified that if the court was composed of two justices only, and they disagreed, the decision of the justice before whom the complaint was made would be the judgment of the court.”

In the effective date language for Chapter 423, Laws of 1982, in this section’s history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

§ 11-25-31. Judgment not conclusive in another action.

A judgment rendered in a suit of unlawful entry or detainer, either for the plaintiff or defendant, shall not bar any action in the circuit court between the same parties, respecting the same land; nor shall any judgment given therein be held conclusive of the facts found in any other action between the same parties.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7(15); 1857, ch. 42, art. 22; 1871, § 1598; 1880, § 2660; 1892, § 4475; 1906, § 5054; Hemingway’s 1917, § 3326; 1930, § 3471; 1942, § 1048.

Cross References —

Parallel provision, see §11-25-119.

JUDICIAL DECISIONS

1. In general.

2. Foreclosure proceedings.

1. In general.

In a proceeding in unlawful entry and detainer to obtain possession of house and lot, title deeds are admissible to prove the right and extent of possession, even though the suit is a possessory action and determination of title is not involved and any purely equitable defenses that defendant may have had could not have been presented in this action, but the judgment shall not bar any action in Circuit Court between the same parties respecting the same land. Tate v. Tate, 217 Miss. 734, 64 So. 2d 908, 1953 Miss. LEXIS 486 (Miss. 1953).

2. Foreclosure proceedings.

Creditor properly brought its claim before a justice court, and then appealed to the circuit court, even though a debtor’s estate was still open because creditor’s action was purely a possessory action. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 5, 7, 49.

CJS.

36A C.J.S., Forced Entry and Detainer § 103.

Article 3. Proceedings in County Court.

§ 11-25-101. County court; remedy in what cases.

Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed.

HISTORY: Codes, 1942, § 1049; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Provision granting exclusive jurisdiction of unlawful entry and detainer proceedings to county courts, see §9-9-21.

Actions in ejectment, see §11-19-1.

Parallel provision, see §11-25-1.

Appeal in cases of unlawful entry and detainer, see §11-51-83.

Limitation of actions concerning land, see §15-1-7.

Rule that right of entry is not tolled by death of disseizor, see §89-1-19.

JUDICIAL DECISIONS

1. In general.

2. By whom maintainable.

3. Against whom maintainable.

4. Conditions precedent to right to bring action.

5. Character of entry or detainer as forcible.

6. Time for bringing action.

7. Defenses.

8. Miscellaneous.

9. Foreclosure proceedings.

1. In general.

Title is not primarily involved in an action of unlawful entry and detainer, the action being possessory only, and all that the plaintiff is required to show in such an action is that he brings himself strictly within the terms of the statute which allows the action to him. McKay v. Shaffer, 202 Miss. 558, 32 So. 2d 746, 1947 Miss. LEXIS 317 (Miss. 1947).

The action of unlawful entry and detainer is statutory, and the statutes authorizing the remedy are strictly construed, because they are in derogation of the common law. Sistrunk v. Majure, 186 Miss. 814, 192 So. 5, 1939 Miss. LEXIS 279 (Miss. 1939).

Purchaser at foreclosure sale, held not authorized to maintain unlawful entry and detainer against one in possession claiming fee simple title by parol gift followed by adverse possession. Holmes v. Elmer, 182 Miss. 171, 181 So. 325, 1938 Miss. LEXIS 171 (Miss. 1938).

Action for unlawful entry and detainer is possessory and does not adjudicate title as such; in action for unlawful entry and detainer, title deeds are admissible to prove right and extent of possession. McCallum v. Gavin, 149 Miss. 885, 116 So. 94, 1928 Miss. LEXIS 92 (Miss. 1928).

In unlawful entry and detainer cases, it is essential, and the burden of proof is on the complaining party to show that the defendant unlawfully withholds possession of the land in controversy. Murf v. Maupin, 113 Miss. 670, 74 So. 614, 1917 Miss. LEXIS 143 (Miss. 1917); Sistrunk v. Majure, 186 Miss. 814, 192 So. 5, 1939 Miss. LEXIS 279 (Miss. 1939).

Defendant must be in possession before plaintiff can maintain action against him. Walton v. Wall, 110 Miss. 361, 70 So. 549, 1915 Miss. LEXIS 57 (Miss. 1915).

The plaintiff must have been deprived of possession in order to sustain the action. Robinson v. Boggan, 97 Miss. 27, 52 So. 705, 1910 Miss. LEXIS 270 (Miss. 1910).

Possession of plaintiff at the time of alleged entry is necessary to sustain this action. Taylor v. Orlansky, 92 Miss. 761, 46 So. 50, 1908 Miss. LEXIS 260 (Miss. 1908).

The action of unlawful entry and detainer is confined to cases specified in the foregoing, this and the section following [Code 1942, §§ 1049, 1050]. Home Mut. Bldg. & Loan Ass'n v. Leonard, 77 Miss. 39, 25 So. 351, 1899 Miss. LEXIS 47 (Miss. 1899); Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383, 1899 Miss. LEXIS 70 (Miss. 1899).

The action is merely possessory, and does not involve title. Spears v. McKay, 1 Miss. 265, 1827 Miss. LEXIS 10 (Miss. 1827); Loring v. Willis, 5 Miss. 383, 1840 Miss. LEXIS 28 (Miss. 1840); Clark v. Bourgeois, 86 Miss. 1, 38 So. 187, 1905 Miss. LEXIS 6 (Miss. 1905); Paden v. Gibbs, 88 Miss. 274, 40 So. 871, 1906 Miss. LEXIS 145 (Miss. 1906).

2. By whom maintainable.

Grantees of a purchaser at a deed of trust foreclosure sale were entitled to maintain an action of unlawful entry and detainer under Code 1942, § 1033, against the grantors under the deed of trust who remained in, and refused to surrender, possession of the property after the deed of trust was foreclosed, and could recover compensation for the use and occupancy of the property. Martin v. Leslie, 229 Miss. 656, 91 So. 2d 743, 1957 Miss. LEXIS 310 (Miss. 1957).

A proceeding in unlawful entry and detainer to obtain possession of house and lot is a summary remedy, and may be brought by an owner whose possession is merely constructive. Tate v. Tate, 217 Miss. 734, 64 So. 2d 908, 1953 Miss. LEXIS 486 (Miss. 1953).

Action of unlawful detainer is purely possessory and does not involve title, so that landlord could not maintain such action against lessee and sublessee after expiration of such leases where the landlord had leased all the premises to another who had been and was in possession of part of the premises, notwithstanding provision in the latter lease that exclusive possession would be given to lessee as of the date of the beginning of the lease, since such provision did not constitute an undertaking on the part of the landlord to put the lessee into possession. Ward v. Hudson, 199 Miss. 171, 24 So. 2d 329, 1946 Miss. LEXIS 186 (Miss. 1946).

Grantee of landlord who had months before served notice to vacate on tenant, who went into possession under rental contract requiring him to vacate on fifteen days’ notice, unless tenant paid rent in arrears, could maintain unlawful entry and detainer proceeding against tenant, who failed to pay rent, as an “assign” of landlord, although grantee had never been in possession. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

Statute authorizing summary remedy against wrongful possession of land gives remedy to one claiming under deed of trust or mortgage, although not immediate vendee or vendee under original grantor in deed of trust. Citizens' Bank of Hattiesburg v. Grigsby, 170 Miss. 655, 155 So. 684, 1934 Miss. LEXIS 181 (Miss. 1934).

A landlord who has leased his land for a term and places his tenant in possession, cannot during the term maintain an action of unlawful entry and detainer under this section [Code 1942, § 1049] against a stranger who entered upon a part of the premises after the term began. Hammel v. Atkinson, 82 Miss. 465, 34 So. 225, 1903 Miss. LEXIS 150 (Miss. 1903).

A railroad exercising ownership over that part of its right of way not occupied by its track in the usual way, such as the nature of the property permitted, has such possession of such part of its right of way as authorizes this action against wrongful entry thereon. Sproule v. Alabama & V. R. Co., 78 Miss. 88, 29 So. 163, 1900 Miss. LEXIS 139 (Miss. 1900).

This action can be brought only in the cases specified in the statute. One whose title is equitable purely, and who has never been in possession and who has no contract with the occupant, express or implied, as to possession, cannot maintain the action. Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383, 1899 Miss. LEXIS 70 (Miss. 1899).

Under this section a purchaser at an execution sale can maintain this action against a tenant of the defendant in execution who withholds possession after his right, the purchaser having become by operation of law the assignee of him who was deprived of possession, or from whom possession was so withheld. This section [Code 1942, § 1049] covers assignees by operation of law as well as by contract. Glenn v. Caldwell, 74 Miss. 49, 20 So. 152, 1896 Miss. LEXIS 105 (Miss. 1896).

A purchaser of land who has been in peaceable possession for six years claiming to a certain fence, the true boundary of the enclosed lot being in dispute, is an assign of such person, within the meaning of this section [Code 1942, § 1047] and may bring this action against the adjoining lot owner who forcibly moved the fence back and took possession of a strip of land, though plaintiff got his deed after such removal. Young v. Barr, 69 Miss. 879, 13 So. 816, 1892 Miss. LEXIS 32 (Miss. 1892).

Owners of the reversion cannot, after the death of the tenant by the courtesy, maintain the action against his lessee. There is no privity between them. Wolfe v. Angevine, 57 Miss. 767, 1880 Miss. LEXIS 55 (Miss. 1880).

If a vendor who has given bond for title part with the purchase-money notes and the legal title to the land, he cannot maintain the action. Clymer v. Powell, 56 Miss. 672, 1879 Miss. LEXIS 188 (Miss. 1879).

One who filed a homestead entry on public lands of the United States cannot maintain the action against persons who had wrongfully settled on the land when “public.” McCorkle v. Yarrell, 55 Miss. 576, 1878 Miss. LEXIS 12 (Miss. 1878).

An owner whose possession is merely constructive can maintain the action. Wilson v. Pugh, 32 Miss. 196, 1856 Miss. LEXIS 173 (Miss. 1856).

An action does not lie in favor of a purchaser at sheriff’s sale to recover from one who was not liable to the action at the suit of the defendant in execution. Cummings v. Kilpatrick, 23 Miss. 106, 1851 Miss. LEXIS 18 (Miss. 1851).

Where joint tenants are entitled to the action, it may be brought by one alone. Rabe v. Fyler, 18 Miss. 440, 1848 Miss. LEXIS 109 (Miss. 1848).

3. Against whom maintainable.

The action under this section [Code 1942, § 1049] being possessory only, does not lie against one who has entered under a lease valid for a year and holds under a contract enforceable in equity against the plaintiff as a lease for a longer period. Lobdell v. Mason, 71 Miss. 937, 15 So. 44, 1894 Miss. LEXIS 16 (Miss. 1894).

Where one claiming invades the possession of another and seeks by stratagem or device to secure the possession to himself, the statute applies. Parker v. Eason, 68 Miss. 290, 8 So. 844, 1890 Miss. LEXIS 70 (Miss. 1890).

A “scrambling possession” is not sufficient. Benjamin v. Reach, 65 Miss. 347, 3 So. 657, 1887 Miss. LEXIS 67 (Miss. 1887); Blake v. McCroy, 65 Miss. 443, 4 So. 339, 1888 Miss. LEXIS 15 (Miss. 1888).

Where a party goes into possession under an executory agreement to purchase, by refusal to pay the balance due on the purchase-money he from that time becomes a trespasser and the vendor may bring the action against him, having first put defendant in default and asserted the right to end the contract. Loring v. Willis, 5 Miss. 383, 1840 Miss. LEXIS 28 (Miss. 1840); Johnson v. Tuggle, 27 Miss. 836, 1854 Miss. LEXIS 138 (Miss. 1854); Moak v. Bryant, 51 Miss. 560, 1875 Miss. LEXIS 79 (Miss. 1875).

4. Conditions precedent to right to bring action.

The vendor of land must tender deed before he can bring this action. Bowling v. Bowling, 47 So. 802 (Miss. 1908).

If the tenant disclaim the tenancy, or if the defendant dispute plaintiff’s right to the possession, a demand is unnecessary before suit. The question of demand is one of costs only. Rabe v. Fyler, 18 Miss. 440, 1848 Miss. LEXIS 109 (Miss. 1848).

5. Character of entry or detainer as forcible.

A mere entry on land against the will of the occupant without other force, intimidation or fraud is sufficient. Clark v. Bourgeois, 86 Miss. 1, 38 So. 187, 1905 Miss. LEXIS 6 (Miss. 1905).

Where a defendant entered into the possession of land, the record title to which was in the plaintiff, under a verbal contract to make payments to the plaintiff in the nature of rent until a certain sum had been paid, when plaintiff was to make defendant a deed, and before completing the payments the defendant repudiated the contract, the action of unlawful detainer will lie in plaintiff’s favor. Clark v. Bourgeois, 86 Miss. 1, 38 So. 187, 1905 Miss. LEXIS 6 (Miss. 1905).

An entry upon the land of a person in possession, however quietly made, is forcible within the meaning of this section [Code 1942, § 1049]. Seals v. Williams, 80 Miss. 234, 31 So. 707, 1902 Miss. LEXIS 236 (Miss. 1902).

The owner whose possession is merely constructive can maintain the action against one who enters on it without his consent, even if the entry be peaceable. Wilson v. Pugh, 32 Miss. 196, 1856 Miss. LEXIS 173 (Miss. 1856).

6. Time for bringing action.

Where the record justifies a finding that defendant’s possession was permissive until one month before the action was brought, it is not barred by this section [Code 1942, § 1049]. Ellis v. Knight, 239 Miss. 836, 124 So. 2d 694, 1960 Miss. LEXIS 359 (Miss. 1960).

Tenant claiming that unlawful entry and detainer proceeding was barred because not brought within one year after wrongful deprivation or withholding of possession had burden of proving when his possession became adverse. Holmes v. Elmer, 182 Miss. 171, 181 So. 325, 1938 Miss. LEXIS 171 (Miss. 1938).

Mortgagee which had foreclosed deed of trust and received trustee’s deed to property in 1933 held not entitled to maintain suit for unlawful entry and detainer in 1936, where there was no contract between mortgagors and mortgagee after foreclosure and mortgagors remained in possession until after institution of suit in 1936. Anthony v. Bank of Wiggins, 178 Miss. 361, 173 So. 454, 1937 Miss. LEXIS 230 (Miss. 1937).

One-year limitation on unlawful entry and detainer did not begin to run when tenant went into possession under contract requiring him to vacate on fifteen days’ notice, but only fifteen days after tenant received notice to vacate. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

This action must be brought within one year after right accrues. Robinson v. Boggan, 97 Miss. 27, 52 So. 705, 1910 Miss. LEXIS 270 (Miss. 1910).

7. Defenses.

Pendency of attachment against grantor of plaintiff in unlawful entry and detainer proceeding, sued out by defendant and levied on land in controversy, constituted no defense to unlawful entry and detainer proceeding. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

Invalidity of trust deed on which plaintiff, in unlawful entry and detainer, based his claim, held available defense, though such action is possessory and title is not involved. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

In such an action neither the legal title of the property nor any secret equities existing between the parties may be investigated. Clark v. Bourgeois, 86 Miss. 1, 38 So. 187, 1905 Miss. LEXIS 6 (Miss. 1905).

Purely equitable defenses cannot be presented in this action. Home Mut. Bldg. & Loan Ass'n v. Leonard, 77 Miss. 39, 25 So. 351, 1899 Miss. LEXIS 47 (Miss. 1899).

Where a plaintiff claims through a sale under a trust deed defendant can defeat recovery by showing that he gave plaintiff the trust deed to secure a debt contracted with him while he was conducting business as a merchant without having paid a sufficient privilege tax. Williams v. Simpson, 70 Miss. 113, 11 So. 689, 1892 Miss. LEXIS 71 (Miss. 1892).

The defendant in such case need not pay or tender the amount due as he would be required to do on seeking affirmative relief in equity. Williams v. Simpson, 70 Miss. 113, 11 So. 689, 1892 Miss. LEXIS 71 (Miss. 1892).

Defendant cannot defeat the suit by abandoning possession after action begun. Newman v. Mackin, 21 Miss. 383, 1850 Miss. LEXIS 32 (Miss. 1850).

8. Miscellaneous.

Our invoking this statute has the burden of proving when his possession became adverse. Ellis v. Knight, 239 Miss. 836, 124 So. 2d 694, 1960 Miss. LEXIS 359 (Miss. 1960).

In an action of unlawful entry and detainer the record must be so certain that the sheriff could go to the land from the description there to be seen and he could not act on inquiry dehors the record. Price v. Moss, 214 Miss. 253, 58 So. 2d 661, 1952 Miss. LEXIS 465 (Miss. 1952).

In an unlawful entry and detainer action where the judgment described the land as fractional part of the N. E. one-fourth of section 36, township 7, range 4 west, containing 75 acres more or less, the description of property is void for indefiniteness and uncertainty. Price v. Moss, 214 Miss. 253, 58 So. 2d 661, 1952 Miss. LEXIS 465 (Miss. 1952).

The mere fact that the plaintiff in an action for unlawful entry and detainer has an outstanding muniment of title is not proof that the defendant holds possession of the land unlawfully, and where there is no evidence to show that defendant was wrongfully withholding possession of the property in controversy, an action of unlawful entry and detainer cannot be sustained. Sistrunk v. Majure, 186 Miss. 814, 192 So. 5, 1939 Miss. LEXIS 279 (Miss. 1939).

Evidence held not to sustain plaintiff’s right to maintain unlawful entry and detainer for possession of filling station and for rent. Coman v. Jourdan, 181 Miss. 674, 180 So. 792, 1938 Miss. LEXIS 108 (Miss. 1938).

Affidavit to complaint by attorney reciting that allegations of complaint were correct and true, held not objectionable for failure to disclose facts were within personal knowledge of affiant. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Where warrant issued on complaint for unlawful entry and detainer complied with statute which merely required that warrant should be made returnable on day certain, not less than five days nor more than twenty days after its date, defendants could not object to being put to trial in present term of court on ground that process had not been issued and served more than five days prior to present term. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Appearance of defendants and their participation in trial of action of unlawful entry and detainer held an admission, in absence of evidence to contrary, that they were withholding land from plaintiff. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

In action of unlawful entry and detainer, deed to plaintiff, in absence of evidence to contrary, constituted sufficient evidence of plaintiff’s right to possession of land, since recitals in deed were prima facie correct. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Complaint in action of unlawful entry and detainer reciting that named person, by his attorney, complains that named persons unlawfully withhold from him possession of lands, held not subject to objection that complaint disclosed that possession was withheld from attorney and not client. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

In action of unlawful entry and detainer where deed to plaintiff had been executed before institution of suit, whether deed was recorded before filing of complaint held immaterial as respects right of plaintiff to introduce deed in evidence. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

In action of unlawful entry and detainer, introduction of deed to plaintiff held not objectionable on ground copy of deed not filed with declaration. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Evidence as to value of land in action of unlawful entry and detainer, consisting only of recital in trustee’s deed of amount bid by plaintiff at sale, held insufficient to permit Supreme Court to assess damages on appeal. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Title deeds competent evidence to show right of possession. Where possession is denied by defendant burden is on plaintiff to show specific property in possession of defendant. Murf v. Maupin, 113 Miss. 670, 74 So. 614, 1917 Miss. LEXIS 143 (Miss. 1917).

It is competent for the landlord to show in action of unlawful detainer against his tenant refusing to pay rent that the eviction from a part of the premises, of which the tenant complains, was under a mortgage on such part, of which the tenant had knowledge when taking the lease. Cheairs v. Coats, 77 Miss. 846, 28 So. 728, 1900 Miss. LEXIS 56 (Miss. 1900).

9. Foreclosure proceedings.

Creditor properly brought its claim before a justice court, and then appealed to the circuit court, even though a debtor’s estate was still open because creditor’s action was purely a possessory action. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

ALR.

Remedy of tenant against stranger wrongfully interfering with his possession. 12 A.L.R.2d 1192.

Right of landlord legally entitled to possession to dispossess tenant without legal process. 6 A.L.R.3d 177.

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 4, 10, 11, 33.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 21-32.

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-103. Purchaser of tax lands.

The purchaser of land at a sale for taxes, or his vendee, after two years from the date of the sale for taxes, and within three years from such date, may bring the action of unlawful detainer, for the recovery or possession of the land; and a judgment in his favor in the action shall be a bar to any action in any court brought after one year from the date of such judgment, to controvert the tax title to the land, saving the rights of infants and persons of unsound mind to redeem the same.

HISTORY: Codes, 1942, § 1050; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Definition of the term “infant”, see §1-3-21.

Proceedings to confirm tax title, see §11-17-1.

Parallel provision, see §11-25-3.

Rule that three year’s occupation under a tax title bars a suit assailing such title, see §15-1-15.

Redemption of land sold for taxes, see §27-45-3 et seq.

Rights of a purchaser of lands at a tax sale, see §27-45-27.

JUDICIAL DECISIONS

1. In general.

The action of unlawful entry and detainer is statutory, and the statutes authorizing the remedy are strictly construed, because they are in derogation of the common law. Sistrunk v. Majure, 186 Miss. 814, 192 So. 5, 1939 Miss. LEXIS 279 (Miss. 1939).

In an action under this section [Code 1942, § 1050], the action being purely possessory, inquiry as to the condition of the title at the time of sale is immaterial. Foote v. Dismukes, 71 Miss. 110, 13 So. 879, 1893 Miss. LEXIS 141 (Miss. 1893).

It is no defense that the title was not in the defendant, but in his minor children entitled to redeem. Foote v. Dismukes, 71 Miss. 110, 13 So. 879, 1893 Miss. LEXIS 141 (Miss. 1893).

The section [Code 1942, § 1050] applies alike to all sales of land for taxes, and precludes controversy, whatever may be the ground for assailing the title. McLemore v. Scales, 68 Miss. 47, 8 So. 844, 1890 Miss. LEXIS 72 (Miss. 1890); Home Mut. Bldg. & Loan Ass'n v. Leonard, 77 Miss. 39, 25 So. 351, 1899 Miss. LEXIS 47 (Miss. 1899); Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383, 1899 Miss. LEXIS 70 (Miss. 1899).

The state and its vendee can bring the action to recover on a tax-title. Crittenden v. Leavenworth, 62 Miss. 32, 1884 Miss. LEXIS 11 (Miss. 1884).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 4, 10, 11, 33.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 21-32.

§ 11-25-105. Court — complaint — form.

The party turned out of possession, or held out of possession, may exhibit his complaint before the judge or clerk of the county court of the county within which the lands, or some part thereof, may lie, to the following effect:

“County of , to-wit: “AB, of said county, complains that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, whereof he prays the possession. “AB, Plaintiff.” The complaint shall be verified by the oath or affirmation of the plaintiff, certified at the foot hereof, after the following manner: “County of , to-wit: “This day the above-named AB made oath (or affirmed) before me, of the county court for said county, that the allegations of the above complaint are correct and true. “Given under my hand, this day of A. D. . “EF, of the County Court.”

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HISTORY: Codes, 1942, § 1051; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Civil jurisdiction of justices of the peace generally, see §9-11-9.

Parallel provision, see §11-25-5.

JUDICIAL DECISIONS

1. In general.

It is not essential to jurisdiction that an affidavit in an unlawful entry and detainer proceeding be made before a justice of the peace of the county in which the lands lie, since the word “may” as used in the statute, is not used in the mandatory sense. Gee v. Rimmer, 188 Miss. 460, 195 So. 342, 1940 Miss. LEXIS 53 (Miss. 1940).

Under statute, on filing of complaint cause is at issue without further pleading, and pleas, replications, rejoinders, surrejoinders, and demurrers are improper. Holmes v. Elmer, 182 Miss. 171, 181 So. 325, 1938 Miss. LEXIS 171 (Miss. 1938).

In action of unlawful entry and detainer, introduction of deed to plaintiff held not objectionable on ground copy of deed not filed with declaration. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Invalidity of trust deed, on which plaintiff in unlawful entry and detainer action based his claim, held available defense, though such action is possessory only and title is not involved. Gardner v. Cook, 173 Miss. 244, 158 So. 150, 1934 Miss. LEXIS 389 (Miss. 1934).

Rent is recoverable as an incident to the suit although affidavit does not demand rent. Stollenwerck v. Eure, 120 Miss. 233, 82 So. 68, 1919 Miss. LEXIS 80 (Miss. 1919).

The land sued for must be described with sufficient accuracy to enable an officer under proper process, should a judgment be rendered for the plaintiff, to remove defendant therefrom without the aid of inquiry dehors the record. Paden v. Gibbs, 88 Miss. 274, 40 So. 871, 1906 Miss. LEXIS 145 (Miss. 1906).

A complaint is not bad for duplicity because it avers an unlawful “turning out” and an “unlawful withholding.” If a complaint should be doubled, it could be amended. Brown v. Ashford, 56 Miss. 677, 1879 Miss. LEXIS 190 (Miss. 1879).

If the name of the affiant be omitted from the affidavit, it may be corrected by amendment. Johnson v. Tuggle, 27 Miss. 836, 1854 Miss. LEXIS 138 (Miss. 1854).

A complaint in the language of the statute is sufficient. Torrey v. Cook, 11 Miss. 60, 1844 Miss. LEXIS 43 (Miss. 1844).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 32, 34, 38.

CJS.

36A C.J.S., Forced Entry and Detainer §§ 44-78.

§ 11-25-107. Warrant.

The county judge or the clerk of the county court upon the filing of the complaint shall thereupon issue a warrant to the following effect:

“The State of Mississippi. “To the Sheriff of County: “Whereas, AB hath made complaint, on oath (or affirmation), before me, of the county court for the said county, that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, and hath prayed the possession thereof, this is therefore to command you to summon the said CD to appear at (which shall be at the usual place of holding the county court), on the day of , before the county court, to answer to the complaint. “Witness my hand, this day of . “EF, of the County Court.”

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HISTORY: Codes, 1942, § 1052; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Jurisdiction of county courts, generally, see §9-9-21.

Parallel provision, see §11-25-7.

JUDICIAL DECISIONS

1. In general.

The warrant is not defective because it does not state that the place at which defendant is required to appear is the “usual place of holding the justice’s court in the district.” Brown v. Ashford, 56 Miss. 677, 1879 Miss. LEXIS 190 (Miss. 1879).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 8, 33, 35, 37.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 54, 55.

§ 11-25-109. Execution of warrant.

The warrant shall be directed to the sheriff, or any constable of the county, and shall be made returnable to the first term of the county court held after the issuance of the said warrant, unless it shall be issued more than ten days before the said term of court when it may be made returnable before the judge of the county court at the usual place of holding the county court at a day to be named not more than ten days, or less than five days, after the date of issuance of the said warrant; and the cause shall be triable at such term, or before the judge in vacation, (if so returnable), on the day therein, provided the defendant has been served with process at least five days before the return day of writ.

HISTORY: Codes, 1942, § 1053; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Parallel provision, see §11-25-11.

JUDICIAL DECISIONS

1. In general.

Where warrant issued on complaint unlawful entry and detainer complied with statute which merely required that warrant should be made returnable on day certain, not less than five days nor more than twenty days after its date, defendants could not object to being put to trial in present term of court on ground that process had not been issued and served more than five days prior to present term. Huff v. Murray, 171 Miss. 656, 158 So. 475, 1935 Miss. LEXIS 8 (Miss. 1935).

Appearance and motion to quash process constitute sufficient appearance regardless of validity of original summons. Citizens' Bank of Hattiesburg v. Grigsby, 170 Miss. 655, 155 So. 684, 1934 Miss. LEXIS 181 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 3, 8, 33, 35, 37.

CJS.

36A C.J.S., Forcible Entry and Detainer §§ 54, 55.

§ 11-25-111. Rent.

The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent on the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the judge of the county court, shall find upon the evidence the arrears of rent or reasonable compensation and the judge of the county court may give judgment against the defendant in the action for such arrears of rent or reasonable compensation and may award a writ of fieri facias thereon. All such cases shall be tried by the judge without the intervention of the jury.

HISTORY: Codes, 1942, § 1054; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Parallel provision, see §11-25-21.

When goods upon rented lands are liable to execution, see §89-7-1.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1054], providing that judge shall find upon evidence the arrears of rent or reasonable compensation, and Code 1942, § 947, allowing double rent against a tenant holding over after notice, are applicable to suits in unlawful entry and detainer. Burr v. Johnson, 204 Miss. 479, 37 So. 2d 747, 1948 Miss. LEXIS 382 (Miss. 1948).

In unlawful entry and detainer action against tenant holding over, imposition of damages at double rent cannot be awarded on testimony which is too vague to establish a rental basis, especially in view of penal nature of such award. Burr v. Johnson, 204 Miss. 479, 37 So. 2d 747, 1948 Miss. LEXIS 382 (Miss. 1948).

Judgment for double rent is limited to that which has accrued prior to rendition of judgment. Stewart v. Miller, 200 Miss. 188, 26 So. 2d 540, 1946 Miss. LEXIS 281 (Miss. 1946).

Under statute (Code 1942, § 947), allowing recovery of double rent against tenant holding over after notice, double rent may be recovered in an action of unlawful entry and detainer inasmuch as this section [Code 1942, § 1054] provides for the recovery in such an action of “any amount for arrears of rent.” Ellison v. Landry, 199 Miss. 161, 24 So. 2d 319, 1946 Miss. LEXIS 182 (Miss. 1946).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer § 50.

CJS.

36A C.J.S., Forcible Entry and Detainer § 89.

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-113. Judgment for plaintiff.

If the finding be for the plaintiff, the judge of the county court shall render judgment in favor of the plaintiff, that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem, and said judge may issue alias writs and enforce the judgment and may punish for contempt of process thereon; provided, however, that a writ of habere facias possessionem or execution shall not issue within five days from the date of judgment.

HISTORY: Codes, 1942, § 1055; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Parallel provision, see §11-25-23.

Form of judgment for person claiming possession of the premises, see §89-7-41.

Record of the proceedings, and appeals, see §89-7-47.

JUDICIAL DECISIONS

1. In general.

The judgment must describe the property. Murf v. Maupin, 113 Miss. 670, 74 So. 614, 1917 Miss. LEXIS 143 (Miss. 1917).

Where plaintiff claims compensation for use and occupation a mere surrender of possession by defendant will not authorize dismissal of appeal. Cahn v. Wright, 108 Miss. 420, 66 So. 782, 1914 Miss. LEXIS 209 (Miss. 1914).

A purchaser from the state, who brings the action on a tax title, can recover reasonable compensation for the use and occupation of the premises. Leavenworth v. Crittenden, 62 Miss. 573, 1885 Miss. LEXIS 111 (Miss. 1885).

The plaintiff, when too much rent has been awarded him, may remit the excess and thus prevent a new trial. Newman v. Mackin, 21 Miss. 383, 1850 Miss. LEXIS 32 (Miss. 1850).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 12, 45, 47 , 51.

12 Am. Jur. Pl & Pr Forms (Rev), Forcible Entry and Detainer, Forms 61-64, 69-71 (Judgments; writs of restitution or execution).

CJS.

36A C.J.S., Forced Entry and Detainer §§ 91 et seq.

§ 11-25-115. Growing crops.

In case of forfeiture under contract of purchase, the purchaser, and in case of foreclosure of deeds in trust or mortgages, the mortgagor shall be entitled to cultivate and gather the crops, if any, planted by him and grown or growing on the premises at the time of the commencement of the suit; and shall, after eviction therefrom have the right to enter thereon for the purpose of completing the cultivation and removing the crops, first paying or tendering to the party entitled to the possession a reasonable compensation for the use of the land. The court may, on demand of the defendant, adjudge the sum to be paid or tendered.

HISTORY: Codes, 1942, § 1056; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Rule that a growing crop is not subject to judgment lien, see §11-7-199.

Parallel provision, see §11-25-25.

Rule that a growing crop shall not be levied upon or attached, see §13-3-137.

Growing crops on a decedent’s estate, see §91-7-169.

JUDICIAL DECISIONS

1. In general.

This section and Section 11-25-15, allowing mortgagor to cultivate and gather crops after foreclosure if crops were planted and growing at time of commencement of foreclosure suit, do not require that mortgagee commence action for unlawful entry and detainer. In re Hilburn, 62 B.R. 597, 1986 Bankr. LEXIS 5765 (Bankr. N.D. Miss. 1986).

Crops matured and ready to be gathered are personal property belonging to the tenant who has the right, after eviction or after expiration of his lease, to a reasonable time in which to gather the matured crops. Garner v. Stuart Co., 222 Miss. 290, 75 So. 2d 747, 1954 Miss. LEXIS 645 (Miss. 1954).

Pecan nuts matured at time injunction restraining tenant’s gathering of crops was sued out by mortgagees under trust deed being foreclosed, held personal property belonging to tenant. Wood v. Pace, 164 Miss. 187, 143 So. 471, 1932 Miss. LEXIS 211 (Miss. 1932).

Purchaser at mortgage sale of land planted by mortgagor’s lessee is not entitled to rent reserved, but only subsequent reasonable rental. Joiner v. Leflore Grocer Co., 145 Miss. 31, 110 So. 857, 1926 Miss. LEXIS 40 (Miss. 1926).

The statute is remedial, and should be so construed as to give full effect to its purpose. Parks v. Kline, 118 Miss. 119, 79 So. 81, 1918 Miss. LEXIS 61 (Miss. 1918).

Under foreclosure reasonable rental allowed purchaser. Parks v. Kline, 118 Miss. 119, 79 So. 81, 1918 Miss. LEXIS 61 (Miss. 1918).

Under this proceeding, court at law may determine reasonable compensation for use of land. Parks v. Kline, 118 Miss. 119, 79 So. 81, 1918 Miss. LEXIS 61 (Miss. 1918).

The lawful tenancy of land vests title to crops grown thereon in the tenant subject to the statutory lien of the landlord. Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 1910 Miss. LEXIS 102 (Miss. 1910).

After termination of tenancy the tenant has reasonable time to remove crop. Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77, 1910 Miss. LEXIS 102 (Miss. 1910).

RESEARCH REFERENCES

ALR.

Effectiveness of reservation of vendor’s crop rights in land contract in absence of such reservation in deed later executed. 8 A.L.R.2d 565.

Law Reviews.

Ownership of Crops on Foreclosed Land, Priority of After-Acquired Property Clauses in Farm Bankruptcies. 58 Miss. L. J. 481, Winter 1988.

§ 11-25-117. Judgment for defendant.

If the finding be in favor of the defendant, the court shall render judgment against the plaintiff that his complaint be dismissed, and that the defendant recover of him full costs.

HISTORY: Codes, 1942, § 1057; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Parallel provision, see §11-25-27.

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer § 48.

12 Am. Jur. Pl & Pr Forms (Rev), Forcible Entry and Detainer, Forms 65-66 (Judgment for defendant).

CJS.

36A C.J.S., Forced Entry and Detainer § 106.

§ 11-25-119. Judgment not bar.

A judgment rendered in a suit of unlawful entry or detainer, either for the plaintiff or defendant, shall not bar any action in the circuit court between the same parties, respecting the same land; nor shall any judgment given therein be held conclusive of the facts found in any other action between the same parties.

HISTORY: Codes, 1942, § 1058; Laws, 1934, ch. 234; Laws, 1936, ch. 246.

Cross References —

Parallel provision, see §11-25-119.

JUDICIAL DECISIONS

1. In general.

The judgment in an action of unlawful entry and detainer brought by the purchaser of land at a sale under foreclosure of a deed of trust against one claiming title thereto under a parol gift and adverse possession that the former was not entitled to possession of the land was not res judicata to bar a subsequent action by such purchaser to confirm title in the land bought by her under such foreclosure sale. Elmer v. Holmes, 189 Miss. 785, 199 So. 84, 1940 Miss. LEXIS 169 (Miss. 1940).

In unlawful entry and detainer action against execution debtor, creditor’s title under constable’s deed cannot be conclusively adjudicated. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

The judgment in unlawful detainer referred to in this section [Code 1942, § 1058] is no bar to an action of trespass, where the plaintiff in the action of trespass had been wrongfully evicted. As making clear the meaning of this section, see Hutchinson’s Code ch 56 p 816; Code 1857 ch 42 art 22; Code 1871 § 1598. Richardson v. Callihan, 73 Miss. 4, 19 So. 95, 1895 Miss. LEXIS 127 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

35A Am. Jur. 2d, Forcible Entry and Detainer §§ 5, 7, 49.

CJS.

36A C.J.S., Forced Entry and Detainer § 103.

Chapter 27. Eminent Domain

In General

§ 11-27-1. Who may exercise right of eminent domain.

Any person or corporation having the right to condemn private property for public use shall exercise that right as provided in this chapter, except as elsewhere specifically provided under the laws of the state of Mississippi.

HISTORY: Codes, 1942, § 2749-01; Laws, 1971, ch. 520, § 1, eff from and after January 1, 1972.

Cross References —

Constitutional provision on taking of private property, see Miss. Const. Art. 3, § 17.

Acquisition of property by Gulf Regional District, see §17-11-33.

Eminent domain powers of regional solid waste management authorities, see §17-17-317.

Applicability of this chapter to county or regional railroad authorities, see §19-29-19.

Municipality’s power to acquire real property to create public utility system, see §21-27-23.

Eminent domain in laying out of streets, see §21-37-47.

Nonrecognition of gain realized on property which is compulsorily or involuntarily converted for public use under this chapter, see §27-7-9.

Boards of education having power of eminent domain to acquire leased sixteenth section or lieu land for the construction of school buildings, see §29-3-88.

Condemnation proceedings of state building commission, see §31-11-25.

Applicability of this chapter to school districts, see 37-7-301.

Acquisition of real estate for community hospitals and health centers in counties, municipalities, etc., see §41-13-15.

Eminent domain in housing, see §43-33-19.

Real Property Acquisition Policies Law, see §§43-37-1 et seq.

Relocation Assistance Law, see §§43-39-1 et seq.

Powers and duties of game and fish commission, see §49-1-29.

Acquiring lands overflowed by construction of dam, see §49-1-33.

Exercise of the power of eminent domain by the Mississippi Commission on Wildlife, Fisheries and Parks for the purpose of improving oyster reefs or beds, see §49-15-40.

Compensation for removal of outdoor advertising, see §49-23-17.

Powers of Pearl River Valley Water Supply District, see §51-9-121.

Power of Tombigbee River Valley Water Management District, see §51-13-111.

Powers of flood and drainage control district, see §51-35-315.

Eminent domain in federal parks, see §55-5-5.

Powers of bridge and park commissions, see §§55-7-7 et seq.

Eminent domain powers and duties as to industrial parks, see §§57-5-21,57-5-23.

Mississippi Major Economic Impact Act, power relating to eminent domain, see §57-75-11.

Acquisition of rights of way, land, etc., for state ports and harbors, see §59-5-39.

Powers and authority of county which has port authority or development commission, see §§59-9-1 et seq.

Proceedings to establish landings, see §§59-19-5 et seq.

Acquisition of property for aviation purposes, see §§61-3-17,61-5-7.

Eminent domain in control of highways, see §65-1-47.

Boards of Supervisors exercising right of eminent domain, see §65-33-23.

Power of eminent domain possessed by municipalities participating in joint project and joint agencies with respect to Joint Municipal Electric Power and Energy Law, see §77-5-773.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Right of eminent domain generally.

3. Public utilities.

4. Municipal corporations.

5. Sewerage systems.

6. Waterworks.

7. Right to compensation.

8. —Construction and use of streets and highways.

9. —Change of grade of street or highway.

10. Persons entitled to compensation or damages.

11. Due compensation of damages.

12. —Measure of compensation or damages.

13. Review.

14. Limitation of actions.

1. In general.

To the extent that Chapter 27 makes provision for practice and procedure in eminent domain actions, it controls. However, Chapter 27 in and of itself is incomplete and stands supplemented by such rules of procedure, evidence and statute as otherwise apply to proceedings in the circuit or county court. Mississippi State Highway Com. v. Herban, 522 So. 2d 210, 1988 Miss. LEXIS 62 (Miss. 1988).

2. Right of eminent domain generally.

The evidence was sufficient to support a trial court’s dismissal of a city’s condemnation petition based on a finding of no public use where the city’s contract with a gaming corporation for use of the land for the alleged purpose of urban renewal did not comply with §43-35-19(b)’s competitive bidding requirement, and the city failed to provide conditions, restrictions, or covenants in its contract with the gaming corporation to ensure that the property would be used for the purpose of gaming enterprise or other related establishments. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

A telephone company failed to meet the first prerequisite to the exercise of the statutory right of eminent domain where there was no evidence of valid, affirmative action on the part of the telephone company transforming the statutory authority of eminent domain into action. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A New York corporation which provided long distance telephone service across the country was required to comply with state law and, as a condition precedent to the exercise of the statutory right of eminent domain pursuant to §77-9-717, to submit to the jurisdiction of the Mississippi Public Service Commission and obtain the following: (1) a determination that the telephone company qualified as an entity to which the legislature had granted the power of eminent domain pursuant to §§11-27-1 and77-9-717; (2) a determination that the telephone company had complied with state law in invoking the statutory power of eminent domain; and (3) a certificate of public convenience and necessity for the particular taking in question. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

Where an eminent domain case was tried by all the parties on the theory of compensation for a small strip of land and an entire building, a portion of which was located on the strip of land, the condemnor was entitled to enter upon the land and remove the building from the property. State Highway Com. v. Charmar, Inc., 569 So. 2d 1132, 1990 Miss. LEXIS 186 (Miss. 1990).

A superior governmental body may condemn the property of an inferior governmental body, and, consequently, the state highway commission has the power to condemn school property. La Barreare v. Lambert, 284 So. 2d 50, 1973 Miss. LEXIS 1246 (Miss. 1973).

The power of eminent domain is in derogation of the common law and should be construed favorably to the owner as against the condemner, which rule applies to the quantum of interest to be taken as well as to the extent of the power vested in the condemnor. Nicholson v. Board of Mississippi Levee Comm'rs, 203 Miss. 71, 33 So. 2d 604, 1948 Miss. LEXIS 233 (Miss. 1948).

The legislature has the power to define the quantum of interest or estate which may be taken, whether an easement or the fee or some estate intermediate these two; the power is limited to the express terms or clear implication of the statute. Nicholson v. Board of Mississippi Levee Comm'rs, 203 Miss. 71, 33 So. 2d 604, 1948 Miss. LEXIS 233 (Miss. 1948).

If the statute does not define the quantum of the estate to be taken, whether an easement or the fee or some intermediate estate, no greater estate can be taken than the particular public use requires. Nicholson v. Board of Mississippi Levee Comm'rs, 203 Miss. 71, 33 So. 2d 604, 1948 Miss. LEXIS 233 (Miss. 1948).

That State Highway Department had, prior to instituting condemnation proceeding, already appropriated land for highway purposes held not to deprive it of its right to thereafter condemn land for highway purposes, even though original appropriation was wrongful. State Highway Dep't v. Campbell, 173 Miss. 397, 161 So. 461, 1935 Miss. LEXIS 214 (Miss. 1935).

The right of eminent domain is limited to the express terms or necessary implications of the statute. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 1910 Miss. LEXIS 174 (Miss. 1910).

Eminent domain rights are attributable to sovereignty and the right must be exercised with great caution and only in cases of public necessity. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 1910 Miss. LEXIS 174 (Miss. 1910).

This chapter [Code 1942, §§ 2749 et seq.] is limited in its application to persons or corporations having a right to condemn and the powers herein conferred cannot be availed of by corporations without authority to condemn. Cumberland Tel. & Tel. Co. v. Morgan, 92 Miss. 478, 45 So. 429, 1908 Miss. LEXIS 175 (Miss. 1908).

Const. 1890 § 17, making it a judicial question whether the contemplated use for which property is sought to be condemned is a public one, does not authorize the courts to determine the necessity for the taking. Ham v. Board of Levee Comm'rs, 83 Miss. 534, 35 So. 943, 1903 Miss. LEXIS 74 (Miss. 1903); Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

That a trespasser, not pretending to exercise it, had the power of eminent domain, does not exempt him from liability to punitive damages. Cumberland Tel. & Tel. Co. v. Cassedy, 78 Miss. 666, 29 So. 762, 1900 Miss. LEXIS 173 (Miss. 1900).

The general rule that “things affixed to the freehold by trespassers belong to the owner of the soil” is not applicable against a body having the right of eminent domain, and entering without leave and making improvements for the public purpose for which it was created and given such power. Illinois C. R. Co. v. Le Blanc, 74 Miss. 650, 21 So. 760, 1897 Miss. LEXIS 57 (Miss. 1897).

The proceeding under this chapter [Code 1942, § 2749] is to confer in a lawful way the right of a person or a corporation to take private property for public use after having made due compensation therefor. Hopson v. Louisville, N. O. & T. R. Co., 71 Miss. 503, 15 So. 37, 1893 Miss. LEXIS 108 (Miss. 1893).

Neither the right of the company to condemn for a right of way nor the measure of compensation to which the landowner is entitled therefor, is in any way affected by the fact that such owner, in an action of trespass, had previously recovered of the company damages for having entered on the land and built and operated its railroad. Hopson v. Louisville, N. O. & T. R. Co., 71 Miss. 503, 15 So. 37, 1893 Miss. LEXIS 108 (Miss. 1893).

3. Public utilities.

Prior to exercising the power of eminent domain in Mississippi, a New York corporation which provided long distance telecommunications across the country was required to prove that it was (1) a telephone company (2) which was constructing new lines and (3) had taken the necessary steps to invoke the power of eminent domain. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A New York corporation which provided long distance telecommunications across the country would be entitled to invoke the power of eminent domain if it proved that it was a telephone company constructing new lines which had taken the necessary corporate steps to invoke the power of eminent domain and had obtained a certificate of public convenience and necessity from the Mississippi Public Service Commission. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The special court of eminent domain properly dismissed a condemnation petition brought by a New York corporation, which provided long distance telephone service across the country, for failure to first obtain a certificate of public convenience and necessity from the Mississippi Public Service Commission as a condition precedent to the exercise of eminent domain by a public utility. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The Mississippi Public Service Commission has the duty, authority, and therefore jurisdiction, over public utilities who come into the state of Mississippi and attempt to invoke the statutory right of eminent domain. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The state is authorized to grant to a telegraph company the right to condemn property of a railroad company. Western Union Tel. Co. v. Louisville & N. R. Co., 107 Miss. 626, 65 So. 650, 1914 Miss. LEXIS 129 (Miss. 1914), aff'd, 250 U.S. 363, 39 S. Ct. 513, 63 L. Ed. 1032, 1919 U.S. LEXIS 1756 (U.S. 1919).

It requires statutory authority to empower telephone company to exercise the right of eminent domain. Alabama & V. R. Co. v. Cumberland Tel. & Tel. Co., 88 Miss. 438, 41 So. 258, 1906 Miss. LEXIS 172 (Miss. 1906).

The showing that a telegraph company offering to condemn land is a dummy cannot be used as a defense of action. Alabama & V. R. Co. v. Cumberland Tel. & Tel. Co., 88 Miss. 438, 41 So. 258, 1906 Miss. LEXIS 172 (Miss. 1906).

A railroad company is not debarred from condemning property because a former proceeding to condemn the same land had been dismissed by a justice of the peace and a petition for mandamus to compel him to proceed had been dismissed on demurrer in the circuit court. Sullivan v. Yazoo & M. V. R. Co., 85 Miss. 649, 38 So. 33, 1904 Miss. LEXIS 177 (Miss. 1904).

4. Municipal corporations.

City may reopen street it has chosen to close; only requirement is that city reopen street through process of eminent domain as opposed to use of ordinance rescinding order closing street. City of Jackson v. McAllister, 475 So. 2d 432, 1985 Miss. LEXIS 2172 (Miss. 1985).

A suit for damages in anticipation that the city would close an alley in violation of statute, and that the State Highway Commission would enter upon the alley and obstruct it by a dirt embankment was prematurely brought where no damages had yet resulted. Collins v. Mississippi State Highway Com., 233 Miss. 474, 102 So. 2d 678, 1958 Miss. LEXIS 405 (Miss. 1958).

A drainage district may have the right of eminent domain conferred upon them. Riverside Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784, 1914 Miss. LEXIS 211 (Miss. 1914).

With reference to power of city under Const. 1890 art. 3 § 17. Illinois C. R. Co. v. State, 94 Miss. 759, 48 So. 561, 1909 Miss. LEXIS 355 (Miss. 1909).

A municipality does not have the right to take or damage private property for public use, different from that of another person or corporation having the right of eminent domain. City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, 1908 Miss. LEXIS 242 (Miss. 1908).

5. Sewerage systems.

City could not be compelled to condemn complainant’s whole right to construct sewerage system where public necessity only required equal easement with that of complainant. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

6. Waterworks.

City’s application to condemn right to construct waterworks system sufficiently described right sought to be condemned. City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 1929 Miss. LEXIS 57 (Miss. 1929).

7. Right to compensation.

A restrictive covenant is an interest in real property for which due compensation must be paid upon a taking by the exercise of eminent domain powers. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

An actual taking or physical invasion of property is not the only basis for compensation. Damage to adjacent private property caused by public use is also compensable. Property is damaged when it is made less valuable. Personal inconvenience, discomfort, or interference with use is not compensable unless it results in the depreciation of value. Even then, compensation is not definite, but these factors are evidence of conditions which adversely affect the value of land. Persons owning property abutting streets have a right to reasonable access to their property from the street, and altering that access may damage the property. Where alteration of access, including light, air and view, diminishes the value of the property, the owner is entitled to compensation; such compensation is commonly termed consequential damages. Gilich v. Mississippi State Highway Com., 574 So. 2d 8, 1990 Miss. LEXIS 778 (Miss. 1990).

The alteration of access to property requires compensation only where, and to the extent that, alteration of access diminishes the value of the property. Matters such as parking and increased difficulty in maneuvering automobiles may likewise be considered to the extent of their adverse effect on property value. Additionally, loss of frontage that “moves” buildings and facilities closer to a roadway may adversely affect value and require compensation. However, compensation for such losses is due only to the extent that the damage is caused by governmental action as distinguished from landowner improvements. Thus, such losses are legally illusory where there has been no taking, but only a reclaiming of a right-of-way that the landowner has theretofore enjoyed and where the landowner has boxed himself or herself in by the manner in which he or she has constructed or purchased the improvements on the property. So long as, after the governmental action at issue, there remains access which would be reasonable if the property had been reasonably improved, no compensation is due. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

8. —Construction and use of streets and highways.

A business’ use of a right-of-way, which was owned by the State Highway Commission, for customer parking for 50 years was permissive, such that the commission’s subsequent use of the right-of-way did not amount to a “taking,” since the business had knowledge of the commission’s interest in the right-of-way, even though the business paved the right-of-way for purposes of parking. Mississippi State Highway Com. v. Hale, 531 So. 2d 623, 1988 Miss. LEXIS 427 (Miss. 1988).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that abutting landowner was not entitled to damages resulting solely from inconvenience in entering and leaving his remaining property, provided that the public at large suffered the same inconvenience, was erroneous. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

In a proceeding to condemn land for the construction of a cloverleaf at the intersection of certain highways, which had not been limited access highways, an instruction that the Highway Commission could construct the interchange on its right of way without payment of damages to an abutting property owner was erroneous, where it appeared that the construction included a high embankment near the owner’s land, and the commission had revoked the owner’s permit to enter the highway directly, so that his right of access to the highway was impaired. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

Since the city had no power to close the alley except upon first making due compensation to the abutting landowners, if the city had closed the alley without making due compensation and the State Highway Commission had entered upon and obstructed it by a dirt embankment, the city and Highway Commission would have been jointly liable. Collins v. Mississippi State Highway Com., 233 Miss. 474, 102 So. 2d 678, 1958 Miss. LEXIS 405 (Miss. 1958).

A street railway company, having authority to lay tracks in city streets, may run them across railroad company tracks in a street without condemnation proceedings. Mississippi C. R. Co. v. Hattiesburg Traction Co., 109 Miss. 101, 67 So. 897, 1915 Miss. LEXIS 120 (Miss. 1915).

A railroad company under license from a municipality cannot construct its track along the public streets of a city without first making compensation for consequent damages to abutting owners, and this whether the fee of the street be in the owner or in the public. Alabama & V. R. Co. v. Bloom, 71 Miss. 247, 15 So. 72, 1893 Miss. LEXIS 204 (Miss. 1893).

9. —Change of grade of street or highway.

Compensation is required for a change of grade in a roadway which adversely affects the value of adjacent property, such as where a change in grade casts increased quantities of water upon the landowner’s property. City of Gulfport v. Anderson, 554 So. 2d 873, 1989 Miss. LEXIS 441 (Miss. 1989).

Statutes held to impliedly authorize payment by State Highway Commission for damage to private property incurred through public use, as by change in grade of highway, although no land is actually appropriated. Parker v. State Highway Com., 173 Miss. 213, 162 So. 162, 1935 Miss. LEXIS 242 (Miss. 1935).

City liable for damages for changing grade of street. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

By obstructing street city is liable for damages. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

10. Persons entitled to compensation or damages.

A landowner holding a reversionary interest in timber at the date the land was “taken” is entitled to introduce evidence to establish the value of the timber. Pearl River Valley Water Supply Dist. v. Wright, 186 So. 2d 205, 1966 Miss. LEXIS 1295 (Miss. 1966).

Where a highway, which had not been a limited access highway, was made into a nonaccess highway, this was the equivalent of an appropriation of the abutting property owner’s right to have an easy way of access to the main highway. Carney v. Mississippi State Highway Com., 233 Miss. 598, 103 So. 2d 413, 1958 Miss. LEXIS 422 (Miss. 1958).

Deed to county by one partner, to right of way for highway, divests only that partner’s interest. Smith v. Board of Sup'rs, 124 Miss. 36, 86 So. 707, 1920 Miss. LEXIS 492 (Miss. 1920).

Equitable owner of property entitled to recover damages. Funderburk v. Columbus, 117 Miss. 173, 78 So. 1, 1918 Miss. LEXIS 161 (Miss. 1918).

The owner of land damaged by the taking of the land of another is entitled to recover such damages under Const. 1890 § 17. Mayor, etc., of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, 1894 Miss. LEXIS 96 (Miss. 1894); Richardson v. Board of Mississippi Levee Comm'rs, 77 Miss. 518, 26 So. 963, 1899 Miss. LEXIS 65 (Miss. 1899).

11. Due compensation of damages.

Homeowners who suffered additional damages allegedly attributable to a highway construction project a few years after the homeowners were compensated for the taking of their property by the condemning authority in an eminent domain action could not recover for the additional damages, even if those damages were not reasonably foreseeable at the time of the original eminent domain trial. King v. Mississippi State Highway Com., 609 So. 2d 1251, 1992 Miss. LEXIS 590 (Miss. 1992).

Where a parcel of land was located in a commercial area and the only reason it had not been rezoned from residential to commercial use was the fact that it was known the property would be taken by condemnation for highway purposes, the highest and best use of the property was for commercial purposes and it should be valued as if it had been rezoned for such use. Evans v. Mississippi State Highway Com., 197 So. 2d 805, 1967 Miss. LEXIS 1542 (Miss. 1967).

The time of taking, for the purpose of determining due compensation, is the date of the institution of the eminent domain suit and not the date of its trial. Pearl River Valley Water Supply Dist. v. Wright, 186 So. 2d 205, 1966 Miss. LEXIS 1295 (Miss. 1966).

On a condemnation of land for levee purposes, the owner is not entitled to any damages because a part of his land is left outside of the levee, but is entitled to damages caused by the levee itself, such as the obstruction of drainage on the land so situate. Duncan v. Board of Mississippi Levee Comm'rs, 74 Miss. 125, 20 So. 838, 1896 Miss. LEXIS 108 (Miss. 1896).

Where a railroad company has entered upon and held and used land for seven or eight years, without procuring a right of way by condemnation or otherwise, it is not entitled, on the owner’s proceeding for an appraisement of his damages under the charter, to have them estimated as of the time of the original taking, but they shall be estimated as of the date of the proceeding as diminished by their market value as a plantation, and without deduction on account of any supposed benefit realized from its construction. Louisville, N. O. & T. R. Co. v. Hopson, 73 Miss. 773, 19 So. 718, 1896 Miss. LEXIS 206 (Miss. 1896).

Measure of compensation to which the landowner is entitled for condemnation of a right of way by a railroad company is not affected by the fact that such owner, in an action of trespass, had previously recovered damages against the company for having entered on the land and built and operated its railroad. Hopson v. Louisville, N. O. & T. R. Co., 71 Miss. 503, 15 So. 37, 1893 Miss. LEXIS 108 (Miss. 1893).

12. —Measure of compensation or damages.

Where public improvements are to be financed by a special assessment upon a class of property owners, a condemnee may not claim the present value of the assessment in diminution of the value of the remainder of his or her property after a portion has been taken. Dear v. Madison County by & Through Madison County Bd. of Supervisors, 649 So. 2d 1260, 1995 Miss. LEXIS 32 (Miss. 1995).

Under the unit valuation method of determining compensation in an eminent domain proceeding, the jury is to determine the value of the property to be condemned and then to apportion the damages to those with an interest in the property, such as fee owners, mortgagees, lienholders and lessees. State Highway Com. v. Rankin County Bd. of Education, 531 So. 2d 612, 1988 Miss. LEXIS 429 (Miss. 1988).

The just compensation in a partial land taking case is generally the value of the part taken plus all damages which the residue of the property suffers, including a diminution in the value of the remainder. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

A partial taking which rendered the remainder unsuitable for continued use as a sawmill, the property’s highest and best use, represented a loss bearing significantly on the owner’s due compensation. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

The court’s refusal to permit a condemnee’s attorney to show the value of an undeveloped tract, a portion of which was taken for highway purposes, as lots, and to fix its value upon “front footage”, was not reversible error, since, while it was appropriate that the jury consider that the land had value as potential residential property, or other use for which the land might be adapted, it would be inappropriate for the jury to determine the present value of undeveloped land as if it were a residential or business subdivision. Henry v. Mississippi State Highway Com., 231 So. 2d 778, 1970 Miss. LEXIS 1604 (Miss. 1970).

In eminent domain proceedings the value of land sought to be condemned had to be determined on the basis that the property was zoned residential at the time of the taking, since such fact affected its fair market value at the time of the taking, and although there was a reasonable probability that it could be rezoned commercial in the near future, the property could not be valued as if the rezoning had already been accomplished. Mississippi State Highway Com. v. Wagley, 231 So. 2d 507, 1970 Miss. LEXIS 1598 (Miss. 1970).

In eminent domain proceedings in order to apply the best use rule in determining the present value of land, mere speculative uses cannot be considered, but there must be some probability that the land would be used within a reasonable time for the particular use to which it is adapted or there must be a present demand for the land for such purpose or a reasonable expectation of such demand in the near future. Mississippi State Highway Com. v. Wagley, 231 So. 2d 507, 1970 Miss. LEXIS 1598 (Miss. 1970).

The rule is well settled that the present value of land sought to be condemned in eminent domain proceedings is not to be estimated simply with reference to the condition in which it is maintained or for the use to which it is at the time applied, but consideration must be given to the best or most valuable use to which the property is adapted. Mississippi State Highway Com. v. Wagley, 231 So. 2d 507, 1970 Miss. LEXIS 1598 (Miss. 1970).

Save in exceptional cases where part of a tract is taken, due compensation is the value of property taken and the damage done to the fair market value of the entire tract by the taking. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Where the whole property is taken, the damages are its fair market value. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Market value is what one desirous of purchasing would give at the present time to one willing to sell. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Anticipated profits from the sale of lots are not an element of damages recoverable in condemnation of an unused portion of a cemetery. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Evidence of the sale price of similar cemetery property is inadmissible in a proceeding to condemn an unused portion of cemetery property. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

That a witness’s estimate of damage is based on the value of the portion taken, without stating the value of the entire tract before and after the taking, does not render it inadmissible, where he states that he did not regard the taking as damaging the remaining portion. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

The recent sale of comparable property in the vicinity may be shown, to establish the fair cash value of the land acquired. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Evidence of the value of a cemetery as a going concern is not admissible in a proceeding to condemn an unused portion of its property. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

The anticipated profits from a cemetery business cannot be taken into consideration in determining the fair, cash market value of the land sought to be acquired. Green Acres Memorial Park, Inc. v. Mississippi State Highway Com., 246 Miss. 855, 153 So. 2d 286, 1963 Miss. LEXIS 514 (Miss. 1963).

Where there was substantial evidence that landowner’s property was worth approximately $17,000 before the taking and $2,000 after the taking, a judgment on a jury verdict in favor of the landowner for $12,000 would be affirmed. Mississippi State Highway Com. v. Gabbert, 238 Miss. 687, 119 So. 2d 774, 1960 Miss. LEXIS 458 (Miss. 1960).

Witnesses estimating the fair market value of property to be condemned should apply the before-and-after rule. Mississippi State Highway Com. v. Daniels, 235 Miss. 185, 108 So. 2d 854, 1959 Miss. LEXIS 418 (Miss. 1959).

Inconvenience of crossing a highway dividing a parcel is not a proper separate item of damage for the taking of lands for the highway. Mississippi State Highway Com. v. Daniels, 235 Miss. 185, 108 So. 2d 854, 1959 Miss. LEXIS 418 (Miss. 1959).

Before a witness as to value may be cross-examined as to prices paid for neighboring lands, similarity and likeness of quality must be shown. Mississippi State Highway Com. v. Daniels, 235 Miss. 185, 108 So. 2d 854, 1959 Miss. LEXIS 418 (Miss. 1959).

The price of land similar to and of like quality to that involved in the case may be shown to weaken opinion evidence as to value. Mississippi State Highway Com. v. Daniels, 235 Miss. 185, 108 So. 2d 854, 1959 Miss. LEXIS 418 (Miss. 1959).

Under Code 1942, § 2775, municipality which dismissed an eminent domain proceeding became liable for counsel and expert witness fees incurred by the landowner in preparation of a defense to the proceeding. City of Jackson v. Lee, 234 Miss. 502, 106 So. 2d 892, 1958 Miss. LEXIS 524 (Miss. 1958).

Where private property is taken for public use, and there is a market price prevailing at the time and place of taking, that price is just compensation. Anderson-Tully Co. v. United States, 189 F.2d 192, 1951 U.S. App. LEXIS 3155 (5th Cir. Miss.), cert. denied, 342 U.S. 826, 72 S. Ct. 47, 96 L. Ed. 624, 1951 U.S. LEXIS 1614 (U.S. 1951).

Where only a part of a tract is taken in the exercise of eminent domain, the owner is entitled to recover damages not only for the part taken but also for injuries accruing to the residue from the taking. Mississippi State Highway Com. v. Dodson, 207 Miss. 229, 42 So. 2d 179, 1949 Miss. LEXIS 332 (Miss. 1949).

When a portion of a parcel of land is to be taken for public use, owner is entitled to recover for injury to the remainder of that parcel only, and cannot recover for injury to separate and independent parcels of land which he may happen to own in the same neighborhood and in determining what constitutes a separate and independent parcel of land, when the property is actually used and occupied, “unity of use” is the principal test. Mississippi State Highway Com. v. Dodson, 207 Miss. 229, 42 So. 2d 179, 1949 Miss. LEXIS 332 (Miss. 1949).

If a tract of land, no part of which is taken, is used in connection with the same farm or enterprise, part of which was taken by eminent domain for public highway, it is not considered a separate and independent parcel merely because it was bought at different time, and separated by imaginary line, or even if the two tracts are separated by highway, railroad, or canal. Mississippi State Highway Com. v. Dodson, 207 Miss. 229, 42 So. 2d 179, 1949 Miss. LEXIS 332 (Miss. 1949).

Two separate tracts of land, one quarter mile apart, joined by a strip of land subsequently purchased to facilitate farming, cattle-raising, and dairying operations are not separate and independent parcels and can be considered as a unit in determining damage resulting from condemnation of a strip of land on one of the tracks for a public highway. Mississippi State Highway Com. v. Dodson, 207 Miss. 229, 42 So. 2d 179, 1949 Miss. LEXIS 332 (Miss. 1949).

The value of the land taken plus the damage, if any, to the remainder of the tract, testing that by the comparative value before and after such taking, is the correct rule for ascertaining the entire damage. Mississippi State Highway Com. v. Burwell, 206 Miss. 490, 39 So. 2d 497, 1949 Miss. LEXIS 275 (Miss.), modified, In re Hart's Estate, 206 Miss. 498, 40 So. 2d 263, 1949 Miss. LEXIS 277 (Miss. 1949).

Measure of damage to property not actually taken is difference between fair market value of such property before, as compared to such value after, the taking. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

While the jury must base its verdict on difference between before and after value of property, replacement, reconstruction and remedying costs may be shown and used as bearing upon accuracy, or inaccuracy, of amount of damage deduced from proof of comparative values. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Court may, in a proper case, allow interest as part of the damages or compensation to which the owner is entitled when property is taken under power of eminent domain. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

The formula for measuring compensation to be awarded the owner in an eminent domain proceeding, when a part of his land is taken for public use is: When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering the general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The formula or the rule of before and after taking must be construed in connection with the facts of the case the court is then considering and the particular questions there presented for decision. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

An instruction on the measure of damages in an eminent domain proceeding that it is the difference between the fair market value of the property before taking and the fair market value of what remained after the land was taken and a public road constructed, cannot be complained of by the parties to the proceeding because it failed to include the qualification that general benefits and injuries shared by the general public should not be considered, and that the market value of the land must be that immediately before and after the taking, since the landowner requested such instruction and the highway commission, seeking condemnation, was not harmed thereby where there was no evidence by the commission as to general benefits and no evidence by the landowner as to general injuries. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, as in the case of a highway, the proper construction of the contemplated highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Where the rule that the measure of damages in an eminent domain proceeding is the difference between the fair market value of the property before the taking and the fair market value after the taking, is applicable, the owner of the land cannot recover damages for specific injuries to the remaining land, although evidence of such injuries is competent, if, but not unless, they would affect the market value of the remaining land. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

A witness testifying as to the market value of the land before the taking for the construction of a highway and the market value after the taking, should not have been permitted, in arriving at the latter value, to take into consideration specific items of injury to the remaining land and the expense incurred thereby as separate elements of damages. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The value of trees on the land taken in a condemnation proceeding to condemn land for a state highway, could not be considered as a separate item of damage but was for consideration by the jury only in arriving at the value of the land on which they were, and it was erroneous to permit the introduction of such evidence as a separate item of damages. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

The inconvenience to the landowners, occasioned by the taking of land for the construction of a highway, to the effect that the construction of a highway increased the distance to be traveled to and from the owners’ dwelling-house and a public road, and whether it could have been removed at a reasonable expense, was a fact to be considered by the jury in fixing the market value of the land remaining after the taking of a part thereof, but it was erroneous to permit its introduction as a separate item of damage. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Evidence on the issue of damages in an eminent domain proceeding to take land for the construction of a state highway, that it would be necessary for the landowners to incur certain specific items of expense in the use and enjoyment of their remaining land, in such form as to suggest to the jury that each might be considered as a separate item of damage, and not simply as a fact bearing on the market value of the remaining land, such as the expense of building a fence on each side of the highway, rebuilding a chicken yard fence, re-establishing a fish-pond that was partly on the land taken, should not have been admitted. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Measure of value held difference between market value of entire tract before and after taking. State Highway Com. v. Day, 181 Miss. 708, 180 So. 794, 1938 Miss. LEXIS 111 (Miss. 1938).

Measure of damages in condemnation proceedings is difference between fair market value of land before taking and fair market value of what remains after land is taken. State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277, 1936 Miss. LEXIS 122 (Miss. 1936).

In estimating damages in condemnation proceeding, consideration must be given fair market value of property and all of its available uses and purposes and consequential damages which flow from the taking. State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277, 1936 Miss. LEXIS 122 (Miss. 1936).

In eminent domain proceeding, adaptability of land for particular purpose is immaterial unless present market value is enhanced thereby. State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277, 1936 Miss. LEXIS 122 (Miss. 1936).

In eminent domain proceeding, evidence concerning adaptability of land on railroad track for manufacturing enterprises which did not disclose probability that land would be put to such use within reasonable time held insufficient to furnish jury with standard upon which present fair market value of land could be determined. State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277, 1936 Miss. LEXIS 122 (Miss. 1936).

In eminent domain proceeding, where court gave numerous instructions fixing measure of damages as difference between fair market value of land and buildings before taking and value of what remained after taking, inconsistent instruction fixing replacement value as measure of damages held reversible error, where jury awarded approximately highest estimate, according to replacement value. Mississippi State Highway Dep't v. Blackburn, 172 Miss. 554, 160 So. 73, 1935 Miss. LEXIS 140 (Miss. 1935).

Measure of landlord’s damage in condemnation proceedings. Schlict v. Clark, 114 Miss. 354, 75 So. 130, 1917 Miss. LEXIS 41 (Miss. 1917).

Evidence of enhanced value due to construction of railroad is not admissible in determining damages to property taken. Romano v. Yazoo & M. V. R. Co., 87 Miss. 721, 40 So. 150, 1905 Miss. LEXIS 182 (Miss. 1905).

The measure of a railroad company’s damages on condemnation of its right of way for a telegraph line is not the value of the land embraced within the right of way between the poles, and under the wires, but the extent to which the value of the use of such spaces by the railroad company is diminished by the telegraph company’s use. Mobile & O. R. Co. v. Postal Tel. Cable Co., 76 Miss. 731, 26 So. 370, 1899 Miss. LEXIS 30 (Miss. 1899).

13. Review.

State Highway Department held not to have waived its right to appeal from judgment awarding damages in condemnation proceeding by fact that department had entered upon and appropriated the land, where appropriation had occurred prior to institution of condemnation proceeding. State Highway Dep't v. Campbell, 173 Miss. 397, 161 So. 461, 1935 Miss. LEXIS 214 (Miss. 1935).

14. Limitation of actions.

The six-year statute of limitations bars action for damages by construction of switch. Romano v. Yazoo & M. V. R. Co., 87 Miss. 721, 40 So. 150, 1905 Miss. LEXIS 182 (Miss. 1905).

OPINIONS OF THE ATTORNEY GENERAL

Section 65-7-89 clearly authorizes the Board to institute eminent domain proceedings to gain parcels of land to construct a segment of state highway on the land. However, it may not use the quick take procedure of Section 11-27-1 et seq. Welch, August 9, 1996, A.G. Op. #96-0402.

The eminent domain powers of joint water management districts referred to in Section 51-8-33 are those set forth in Sections 11-27-1 through 11-27-51. Applewhite, Oct. 27, 2000, A.G. Op. #2000-0635.

RESEARCH REFERENCES

ALR.

Constitutional rights of owner as against destruction of building by public authorities. 14 A.L.R.2d 73.

Liability of condemnor in eminent domain proceedings for fees of expert witnesses who testified for property owner. 18 A.L.R.2d 1225.

Abutting owner’s right to damages or other relief for loss of access because of limited-access highway or street. 43 A.L.R.2d 1072.

Rights in respect of real-estate taxes where property is taken in eminent domain. 45 A.L.R.2d 522.

Fire hazard as element of damages on condemnation. 63 A.L.R.2d 313.

Eminent domain: restrictive covenant or right to enforcement thereof as compensable property right. 4 A.L.R.3d 1137.

Plotting or planning in anticipation of improvement as taking or damaging of property affected. 37 A.L.R.3d 127.

Propriety of court’s consideration of ecological effects of proposed project in determining right of condemnation. 47 A.L.R.3d 1267.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes. 64 A.L.R.3d 1239.

Eminent domain: right to condemn property owned or used by private educational, charitable, or religious organization. 80 A.L.R.3d 833.

Eminent domain: validity of appropriation of property for anticipated future use. 80 A.L.R.3d 1085.

Good will as element of damages for condemnation of property on which private business is conducted. 81 A.L.R.3d 198.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use. 22 A.L.R.4th 840.

Airport operations or flight of aircraft as constituting taking or damaging of property. 22 A.L.R.4th 863.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding. 23 A.L.R.4th 631.

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking. 23 A.L.R.4th 674.

Eminent domain: industrial park or similar development as public use justifying condemnation of private property. 62 A.L.R.4th 1183.

Right of out-of-state property owner to commence in, or remove to, federal court action involving taking of property by state, local, government, or agency thereof. 4 A.L.R. Fed. 236.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain §§ 17 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration – For condemnation – By state agency – For state transportation facility).

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 303.1 (Answer-Statement of defendant’s interest in property-Allegations of damage to business and remaining property).

7 Am. Jur. Legal Forms 2d, Eminent Domain §§ 97:15-97:17 (Acts preliminary to exercise of power of eminent domain).

7B Am. Jur. Legal Forms 2d, Eminent Domain §§ 97:29 et seq. (compensation).

11 Am. Jur. Trials, Condemnation of Urban Property, §§ 1 et seq.

10 Am. Jur. Proof of Facts 2d, Eminent Domain: Lack of Necessity for Taking Property, §§ 9 et seq. (proof of lack of reasonable necessity for taking property for urban renewal project).

28 Am. Jur. Proof of Facts 2d 615, Eminent Domain: Traffic Noise and Vibration.

19 Am. Jur. Proof of Facts 3d 613, Highest and Best Use of Property Taken Under Eminent Domain.

CJS.

29A C.J.S., Eminent Domain §§ 24 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

§ 11-27-3. Court of eminent domain.

A special court of eminent domain is hereby created, to consist of a judge, jury, and such other officers and personnel as hereinafter set out, and it shall have and exercise the jurisdiction and powers hereinafter enumerated. The original powers and jurisdiction shall be and is hereby fixed in the county court in each county that has elected to come under the provisions of Section 9-9-1 Mississippi Code of 1972, or that may hereafter come under the provisions of said Section 9-9-1, and in every other county of this state, the original powers and jurisdiction shall be and is hereby fixed in the circuit court of such county, which said powers and jurisdiction may be exercised in full either in termtime or vacation, or both.

HISTORY: Codes, 1942, § 2749-02; Laws, 1971, ch. 520, § 2, eff from and after January 1, 1972.

Cross References —

Jurisdiction of county courts generally, see §9-9-21.

Term of court of eminent domain, see §11-27-29.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Since the original powers and jurisdiction of the special court of eminent domain are fixed in the county or circuit courts, as provided in §11-27-3, the discovery provisions of §§13-1-201 through13-1-271 apply to proceedings in the special court as well as to other civil proceedings in the county and circuit courts. Thus, in a proceeding by owners of property condemned as a result of the relocation of a state highway, the special court of eminent domain erred in refusing to extend the discovery statutes to the condemnation proceeding. Barrett v. State Highway Com., 385 So. 2d 627, 1980 Miss. LEXIS 2031 (Miss. 1980).

When a special court of eminent domain concludes the matter or matters for which it was convened and a final judgment is entered, it automatically goes out of existence and no longer has jurisdiction to hear and determine any matters filed thereafter, unless an order has been entered on its minutes granting additional time with which to file such matters. This rule is the same whether the court is convened in vacation or during a regular term of the circuit or county court. Mississippi State Highway Com. v. First Methodist Church, Inc., 323 So. 2d 92, 1975 Miss. LEXIS 1556 (Miss. 1975).

By way of pendant jurisdiction, the eminent domain court is allowed to decide questions of title where the issue arises from the “common nucleus of operative fact.” In other words, where the eminent domain court has subject matter jurisdiction of a condemnation proceeding as established in the pleadings, the court may determine any questions of title which may arise from the proceedings. To the extent that Evans v. Mississippi Power Company (Miss. 1968) 206 So. 2d 321 and Whitehead v. Mississippi State Highway Commission (Miss. 1971) 254 So. 2d 347 hold otherwise, they are overruled. McDonald's Corp. v. Robinson Industries, Inc., 592 So. 2d 927, 1991 Miss. LEXIS 526 (Miss. 1991).

RESEARCH REFERENCES

ALR.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.S.) in condemnation proceedings by United States. 164 A.L.R. Fed. 341.

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 365 et seq.

CJS.

29A C.J.S., Eminent Domain §§ 337–339 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

Evidence of Business Factors in Condemnation Proceedings Concerning Certificates of Public Convenience and Necessity. 52 Miss. L. J. 927, December 1982.

§ 11-27-5. Complaint to condemn; parties; preference.

Any person or corporation having the right to condemn private property for public use shall file a complaint to condemn with the circuit clerk of the county in which the affected property, or some part thereof, is situated and shall make all the owners of the affected property involved, and any mortgagee, trustee or other person having any interest therein or lien thereon a defendant thereto. The complaint shall be considered a matter of public interest and shall be a preference case over other cases except other preference causes. The complaint shall describe in detail the property sought to be condemned, shall state with certainty the right to condemn, and shall identify the interest or claim of each defendant.

HISTORY: Codes, 1942, § 2749-03; Laws, 1971, ch. 520, § 3; Laws, 1991, ch. 573, § 61, eff from and after July 1, 1991.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Warranty deed which was filed in the wrong judicial district was void as to a utility because the utility acquired its interest to the subject real property in a quick-take condemnation action without notice of the misfiled deed. Harrison County Util. Auth. v. Walker, 143 So.3d 608, 2014 Miss. App. LEXIS 19 (Miss. Ct. App.), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 386 (Miss. 2014).

Under the requirement of this section [Code 1942, § 2751] that an application to condemn land must describe the land sought to be condemned with certainty, the petition in a condemnation proceeding which described property “exclusive of the right of way of present Mississippi Highway No. 63” was insufficient to describe that part of the condemnee’s property subject to condemnation, in view of a dispute between the condemnee and the highway commission as to the extent of the right-of-way. Whitehead v. Mississippi State Highway Com., 254 So. 2d 357, 1971 Miss. LEXIS 1254 (Miss. 1971), but see McDonald's Corp. v. Robinson Industries, Inc., 592 So. 2d 927, 1991 Miss. LEXIS 526 (Miss. 1991).

Prior to exercising the power of eminent domain in Mississippi, a New York corporation which provided long distance telecommunications across the country was required to prove that it was (1) a telephone company (2) which was constructing new lines and (3) had taken the necessary steps to invoke the power of eminent domain. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A telephone company failed to meet the first prerequisite to the exercise of the statutory right of eminent domain where there was no evidence of valid, affirmative action on the part of the telephone company transforming the statutory authority of eminent domain into action. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The special court of eminent domain properly dismissed a condemnation petition brought by a New York corporation, which provided long distance telephone service across the country, for failure to first obtain a certificate of public convenience and necessity from the Mississippi Public Service Commission as a condition precedent to the exercise of eminent domain by a public utility. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

In an eminent domain action, the proper procedure to determine compensation under the unit valuation method is to file the petition against all persons and parties claiming an interest in the property sought to be condemned and for the jury to determine the value of the property being condemned and then to apportion the damages to the proper parties, in this case a fee holder and a leaseholder. The State Highway Commission’s partial appeal from that portion of the verdict awarded to the leaseholder would be dismissed, where the Commission was not appealing the total verdict, and had already paid the portion awarded to the fee holder, who was no longer a party to the litigation. Lennep v. Mississippi State Highway Com., 347 So. 2d 341, 1977 Miss. LEXIS 2034, 1977 Miss. LEXIS 2035 (Miss. 1977).

Where, following the establishment by an inverse condemnation suit of an aviation easement against landowners’ property but before assessment of damages therefor, the airport condemned said property in an eminent domain proceeding, the compensation paid the landowners in the eminent domain proceeding did not preclude them from recovering damages for the previously taken easement. Wright v. Jackson Municipal Airport Authority, 300 So. 2d 805, 1974 Miss. LEXIS 1646 (Miss. 1974).

Under the requirement of this section [Code 1942, § 2751] that an application to condemn land must describe the land sought to be condemned with certainty, the petition in a condemnation proceeding which described property “exclusive of the right of way of present Mississippi Highway No. 63” was insufficient to describe that part of the condemnee’s property subject to condemnation, in view of a dispute between the condemnee and the highway commission as to the extent of the right-of-way. Whitehead v. Mississippi State Highway Com., 254 So. 2d 357, 1971 Miss. LEXIS 1254 (Miss. 1971), but see McDonald's Corp. v. Robinson Industries, Inc., 592 So. 2d 927, 1991 Miss. LEXIS 526 (Miss. 1991).

Where a company seeks to condemn a power line right of way, together with any and all “danger trees” then or thereafter growing beyond the limits of the right of way, the condemnee is entitled to a bill of particulars requiring the condemnor to designate the number, kind, and location of the trees which are presently to be cut as “danger trees.” Mississippi Power Co. v. Leggett, 197 So. 2d 475, 1967 Miss. LEXIS 1527 (Miss. 1967).

By requiring a company desiring to condemn a power line right of way and “danger trees” growing beyond the limits of the right of way to designate the number, kind, and location of the “danger trees” which are presently to be cut and severed, the jury can determine to what extent the rights of the condemnee will be invaded by the condemnor, which trees will be similarly cut within the next 5 or 10 years, and the extent to which the condemnor’s right of ingress and egress for the purpose of cutting will damage the condemnee. Mississippi Power Co. v. Leggett, 197 So. 2d 475, 1967 Miss. LEXIS 1527 (Miss. 1967).

A petition to condemn an electric power line right of way and “danger trees,” described in the petition is any and all trees then or thereafter growing beyond the limits of the right of way, any part of which would, in falling directly toward the line, strike any structure or conductor of the line, or come within 5 feet of any conductor or structure, described with sufficient accuracy the property sought to be condemned within the meaning of this section [Code 1942, § 2751]. Mississippi Power Co. v. Leggett, 197 So. 2d 475, 1967 Miss. LEXIS 1527 (Miss. 1967).

The application need not name and particularize the use or uses of the land to be condemned. Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So. 2d 504, 1964 Miss. LEXIS 398 (Miss. 1964).

The taking of land for a public purpose which is primary and paramount will not be defeated by the fact that a private use or benefit which would not of itself warrant condemnation will result. Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So. 2d 504, 1964 Miss. LEXIS 398 (Miss. 1964).

The taking of land adjacent to a water storage reservoir is not precluded by the location thereon of a service center for recreation seekers. Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So. 2d 504, 1964 Miss. LEXIS 398 (Miss. 1964).

Holding power company cutting trees in making survey with a view to condemnation, not liable to statutory penalty. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

The statement of rights sought to be condemned may, on an appeal to the circuit court, be amended so as to exclude rights not desired. Mississippi State Highway Com. v. Daniels, 235 Miss. 185, 108 So. 2d 854, 1959 Miss. LEXIS 418 (Miss. 1959).

Every essential prerequisite to the jurisdiction prescribed by statute must be complied with and such prerequisite must affirmatively appear on the face of the proceeding. However, a substantial compliance is sufficient. Western Union Tel. Co. v. Louisville & N. R. Co., 107 Miss. 626, 65 So. 650, 1914 Miss. LEXIS 129 (Miss. 1914), aff'd, 250 U.S. 363, 39 S. Ct. 513, 63 L. Ed. 1032, 1919 U.S. LEXIS 1756 (U.S. 1919).

2. Venue.

Because the landowners’ claims under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., were disposed of at summary judgment, their claim of a taking had to be brought as a separate action with venue fixed in the Circuit Court of Jackson County, the situs of the property. Dunston v. Miss. Dep't of Marine Res., 892 So. 2d 837, 2005 Miss. App. LEXIS 66 (Miss. Ct. App. 2005).

3. Parties.

Under subsection (2)(d), a person who claims an easement by prescription across condemned land should be made a party to a condemnation proceeding. Bishop v. Mississippi Transp. Comm'n, 734 So. 2d 218, 1999 Miss. App. LEXIS 28 (Miss. Ct. App. 1999).

The purchaser of land at a tax sale, even prior to the expiration of the period of redemption, is a necessary party to an eminent domain action, where the provisions of Code 1942, §§ 9935 and 9936 had been complied with. Mississippi State Highway Com. v. Casey, 253 Miss. 685, 178 So. 2d 859, 1965 Miss. LEXIS 1033 (Miss. 1965).

The objection of nonjoinder of necessary parties required hereunder is not available to a party not affected thereby. Dantzler v. Mississippi State Highway Com., 190 Miss. 137, 199 So. 367, 1941 Miss. LEXIS 42 (Miss. 1941).

Condemner must determine at his peril the names of the owner and other persons having an interest in or lien on the premises sought to be condemned. Mississippi State Highway Com. v. West, 181 Miss. 206, 179 So. 279, 1938 Miss. LEXIS 63 (Miss. 1938).

Person named as defendant who has no interest in property, held not entitled to compensation. Mississippi State Highway Com. v. West, 181 Miss. 206, 179 So. 279, 1938 Miss. LEXIS 63 (Miss. 1938).

Where sublease had expired prior to institution of condemnation proceedings, sublessees, made parties to the proceedings, were entitled at most to only nominal damages. Mississippi State Highway Com. v. West, 181 Miss. 206, 179 So. 279, 1938 Miss. LEXIS 63 (Miss. 1938).

Doctrine of estoppel by judicial admissions held not to apply to condemnation proceedings. Mississippi State Highway Com. v. West, 181 Miss. 206, 179 So. 279, 1938 Miss. LEXIS 63 (Miss. 1938).

A person not having the right to condemn property will not be aided by uniting in the petition, over the protest of the owner of the property, a corporation having the right to condemn. Cumberland Tel. & Tel. Co. v. Morgan, 92 Miss. 478, 45 So. 429, 1908 Miss. LEXIS 175 (Miss. 1908).

4. Description of property.

The statute does not require that an eminent domain property description be expressed in terms of metes and bounds. Ford v. Destin Pipeline Co., 809 So. 2d 573, 2000 Miss. LEXIS 118 (Miss. 2000).

RESEARCH REFERENCES

ALR.

Intervention in condemnation proceedings by adjoining landowners claiming consequential damage. 61 A.L.R.2d 1292.

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 416 et seq.

9 Am. Jur. Pl and Pr Forms (Rev), Eminent Domain, Forms 1 et seq. (Commencement of condemnation proceedings).

13 Am. Jur. Legal Forms 2d, Mortgages and Trust Deeds §§ 179:245, 179:245.1 (condemnation award).

CJS.

29A C.J.S., Eminent Domain § 483 et seq.

§ 11-27-7. Filing complaint; lis pendens; time and place of hearing; notice; pleadings.

The complaint shall be filed with the circuit clerk and shall be assigned a number and placed on the docket as other pleadings in circuit court or county court. The plaintiff shall also file a lis pendens notice in the office of the chancery clerk immediately after filing the complaint. The circuit clerk, or the plaintiff by his attorney, shall forthwith present such complaint to the circuit judge or county judge, as the case may be, who shall by written order directed to the circuit clerk fix the time and place for the hearing of the matter, in termtime or vacation, and the time of hearing shall be fixed on a date to allow sufficient time for each defendant named to be served with process as is otherwise provided by the Mississippi Rules of Civil Procedure, for not less than thirty (30) days prior to the hearing. If a defendant, or other party in interest, shall not be served for the specified time prior to the date fixed, the hearing shall be continued to a day certain to allow the thirty-day period specified. Not less than twenty (20) days prior to the date fixed for such hearing, the plaintiff shall file with the circuit clerk and serve upon the defendants, or their respective attorneys, a statement showing: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the plaintiff. Not less than ten (10) days prior to the date fixed for such hearing, each of the defendants shall file with the circuit clerk and serve upon the plaintiff, or his attorney, a statement showing: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the defendants. In each such instance, both the plaintiff and the defendant shall set out in such statement the asserted highest and best use of the property and shall itemize the elements of damage, if any, to the remainder if less than the whole is taken. The statements required by this section shall constitute the pleadings of the parties with respect to the issue of value, and shall be treated as pleadings are treated in civil actions in the circuit court. The judge, for good cause shown, may increase or decrease the time for pleading by the plaintiff or by the defendant.

HISTORY: Codes, 1942, § 2749-04; Laws, 1971, ch. 520, § 4; Laws, 1991, ch. 573, § 62, eff from and after July 1, 1991.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Secretary of State had a clear interest in the property, and pursuant to Miss. Code Ann. §7-11-11, which enumerated the duties and powers of the Secretary of State, the property was to come under the Secretary of State’s charge once the redemption period was over, and this entitled the Secretary of State to be recognized in the eminent domain proceedings; if the Department of Finance and Administration had strictly followed the procedural requirements of §11-27-7, it would have named the Secretary of State as a defendant. Smith v. Jackson State Univ., 995 So. 2d 88, 2008 Miss. LEXIS 454 (Miss. 2008).

Although §11-27-7 states that the landowners will not be required to submit their statement of values until 10 days before trial, that does not mean that experts’ opinions and the bases therefor are not discoverable. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

A trial court should not have entered a default judgment in an eminent domain proceeding merely because the State Highway Commission failed to file a statement of values as required by §11-27-7 where the only issue was the amount of damages that the landowner would receive from the Commission, both parties came to trial ready to proceed, the landowner would not have been prejudiced by an extension of time for the Commission to file the statement, and the landowner knew to what extent the Commission valued the land because the parties had been involved in unsuccessful negotiations concerning the value of the land. State Highway Com. v. Hyman, 592 So. 2d 952, 1991 Miss. LEXIS 974 (Miss. 1991).

Statements of value in a eminent domain proceeding are to be treated as pleadings are treated in civil causes in the circuit court and thus may be amended. Hudspeth v. State Highway Com., 534 So. 2d 210, 1988 Miss. LEXIS 546 (Miss. 1988).

Before either party in an eminent domain proceeding may complain of a variance from the statement of values, timely objection must be tendered when the opposition seeks to exceed the statement of values. Failure of objection results in waiver of the point. Mississippi State Highway Com. v. Viverette, 529 So. 2d 896, 1988 Miss. LEXIS 321 (Miss. 1988).

Admission of testimony of landowner regarding loss of profits was reversible error due to uncertainty and speculation involved in future of any business; testimony of landowner regarding future profits was even more speculative because landowner did not even have business located on property condemned on date of filing of application for special court of eminent domain. State Highway Com. v. Smith, 511 So. 2d 881, 1987 Miss. LEXIS 2494 (Miss. 1987).

Mississippi recognizes before and after rule in determining measure of damages when part of tract of land is taken for public use, and while testimony as to comparable land sales is admissible in establishing fair market value of condemned property, it is error to allow jury to consider evidence of sales of non-comparable property; appraisers for landowner failed to establish probability that subject land would either be used within reasonable time for commercial purposes, or that there was demand for such property for those purposes. State Highway Com. v. Smith, 511 So. 2d 881, 1987 Miss. LEXIS 2494 (Miss. 1987).

Highway Department had not waived its right to claim less damage than amount in statement of values filed in eminent domain court by failing to assert lesser amount at trial and before Supreme Court, where statute makes statement of values filed by Highway Department a pleading. State Highway Com. v. McDonald's Corp., 509 So. 2d 856, 1987 Miss. LEXIS 2449 (Miss. 1987).

In an eminent domain proceeding to condemn a 1.52-acre strip of land out of a six-acre tract, a fatal variance existed between the highway commission’s statement of value, which constituted its pleadings on the issue of value, and its proof, where, at trial, the commission’s only appraiser testified that the landowner’s total damages were 40% less than that contained in its filed statement of value. Tysons, Inc. v. Mississippi State Highway Com., 367 So. 2d 939, 1979 Miss. LEXIS 2229 (Miss. 1979).

The judge in a special court of eminent domain did not abuse his discretion by entering an order nunc pro tunc allowing the landowner to file his amended statement of values on the day of trial where the record did not show that the commission was prejudiced thereby. Mississippi State Highway Com. v. Amos, 319 So. 2d 231, 1975 Miss. LEXIS 1478 (Miss. 1975).

The requirement that all parties of interest be made parties and be duly notified by proper process is not directory, but must be strictly followed; thus, a mortgagee was an interested party and had to be summoned where she had a lien on the property sought to be condemned, and it was not sufficient that the trustee was summoned as an agent of the mortgagee. New v. State Highway Com., 297 So. 2d 821, 1974 Miss. LEXIS 1543 (Miss. 1974).

Although a trial judge has the authority to increase or decrease the time for pleading by the parties under §11-27-7, the exercise of this prerogative is motivated only “for the good cause shown” by its terms, thus placing the invocation of the prerogative within the discretion of the trial judge. Coleman v. Mississippi State Highway Com., 289 So. 2d 918, 1974 Miss. LEXIS 1693 (Miss. 1974).

Pleadings relating to value are required by §11-27-7; and without them this chapter becomes meaningless. Coleman v. Mississippi State Highway Com., 289 So. 2d 918, 1974 Miss. LEXIS 1693 (Miss. 1974).

RESEARCH REFERENCES

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 365 et seq.

7B Am. Jur. Legal Forms 2d, Eminent Domain §§ 97:39 et seq. (appraisers and appraisals).

CJS.

29A C.J.S., Eminent Domain §§ 337–339 et seq.

§ 11-27-9. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1942, § 2749-05; Laws, 1971, ch. 520, § 5]

Editor’s Notes —

Former §11-27-9 pertained to the situation where the owner of the land sought to be condemned was an infant, person of unsound mind, a nonresident, or a deceased person.

§ 11-27-11. Operation of court.

The circuit clerk shall deliver a copy of said order of the court fixing the time and place for the hearing to the sheriff of the county and to the official court reporter. The sheriff shall attend the court and execute all process. The court reporter shall take the testimony. The circuit clerk, in the presence of the sheriff and chancery clerk, shall draw from the jury box of the court the names of twenty-four (24) jurors, or such numbers of jurors as shall be ordered by the court, who shall serve in said court, and shall issue a venire facias to the sheriff, commanding him to summon the jurors so drawn to appear at the time and place designated by the order of the court. All acts and actions of the clerk and sheriff, including the return endorsed on each summons issued, shall be filed by the clerk and made a part of the record in the cause.

HISTORY: Codes, 1942, § 2749-06; Laws, 1971, ch. 520, § 6, eff from and after January 1, 1972.

Cross References —

Juries in condemnation proceedings, see §13-5-89.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Principal and surety on injunction bond given in suit to restrain eminent domain proceeding held not liable for damages consisting of fees paid jurors, who neither attended nor served. Gwin v. Greenwood, 159 Miss. 110, 131 So. 821, 1931 Miss. LEXIS 18 (Miss. 1931).

RESEARCH REFERENCES

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 485 et seq.

CJS.

29A C.J.S., Eminent Domain §§ 560, 570, 577–579, 593, 594 et seq.

§ 11-27-13. Separate trials; to injury or to court.

Each different property, identified by separate ownership, shall constitute a separate civil action and shall require a separate trial, unless otherwise agreed by all parties with the approval of the court. Trial shall be to a jury which shall be examined and impaneled in accordance with the Mississippi Rules of Civil Procedure. Alternatively, trial may be to the court, as provided by the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1942, § 2749-07; Laws, 1971, ch. 520, § 7; Laws, 1991, ch. 573, § 63, eff from and after July 1, 1991.

Cross References —

Number of jurors in county court actions, see Miss. R. Civ. P. 48.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

In an eminent domain action, the proper procedure to determine compensation under the unit valuation method is to file the petition against all persons and parties claiming an interest in the property sought to be condemned and for the jury to determine the value of the property being condemned and then to apportion the damages to the proper parties, in this case a fee holder and a leaseholder. The State Highway Commission’s partial appeal from that portion of the verdict awarded to the leaseholder would be dismissed, where the Commission was not appealing the total verdict, and had already paid the portion awarded to the fee holder, who was no longer a party to the litigation. Lennep v. Mississippi State Highway Com., 347 So. 2d 341, 1977 Miss. LEXIS 2034, 1977 Miss. LEXIS 2035 (Miss. 1977).

In condemnation proceedings where the application seeks to condemn the property of more than one defendant interested in different properties, a separate trial must be had for each and, in proceedings by an applicant for a right of way for a private road across the lands of several owners a separate trial should be granted in the circuit court to each of the several landowners to determine the damages done to the various parcels of land. Rotenberry v. Renfro, 214 So. 2d 275, 1968 Miss. LEXIS 1297 (Miss. 1968).

Where the interests of both the landlord and his tenant in the same lands is sought to be condemned in the same action, this section [Code 1942, § 2756], requiring separate trials in the case of owners of different properties, is not applicable. Smith v. Mississippi State Highway Com., 252 Miss. 883, 174 So. 2d 374, 1965 Miss. LEXIS 1157 (Miss. 1965).

RESEARCH REFERENCES

ALR.

Necessity of trial or proceeding, separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award. 94 A.L.R.3d 696.

Jury trial under Rule 71A(h) of Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., Rule 71A(h), 28 U.S.C.S.) in condemnation proceedings by United States. 164 A.L.R. Fed. 341.

Dismissal, under Rule 71A(i)(3) of Federal Rules of Civil Procedure, of defendant unnecessarily or improperly joined in condemnation action. 57 A.L.R. Fed. 490.

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 485 et seq.

CJS.

29A C.J.S., Eminent Domain §§ 535 et seq.

§ 11-27-15. Dismissal; grounds; appeal.

Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the complaint and in the same court where the complaint is pending, serve and file a motion to dismiss under the Mississippi Rules of Civil Procedure for failure to state a claim upon which relief can be granted on a ny of the following grounds: (1) that the plaintiff seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged.Any such motion, if served and filed, shall be heard and decided by the judge as a preference proceeding, without a jury, prior to the hearing on the complaint.Any party may appeal directly to the Supreme Court from an order overruling or granting any such motion to dismiss, as in other cases, but if the order be to overrule the motion, the appeal therefrom shall not operate as a supersedeas and the court of eminent domain may nevertheless proceed with the trial on the complaint.Any appeal from an order overruling or granting a motion to dismiss shall be a preference action in the Supreme Court and advanced on the docket as appropriate.

HISTORY: Codes, 1942, § 2749-08; Laws, 1971, ch. 520, § 8; Laws, 1991, ch. 573, § 64, eff from and after July 1, 1991.

Cross References —

Separate causes of action and impaneling the jury, see §11-27-13.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Appeals.

1. In general.

Special court of eminent domain erred as a matter of law when it granted a petition for private road access because the Mississippi Constitution provided that such rights of way were not permissible in incorporated cities and towns. The right to seek dismissal under the Mississippi Constitution was not waived because the statutory grounds for such were not satisfied where a private road was requested, rather than a public taking; moreover, public necessity or public use did not have to be shown. High v. Kuhn, 191 So.3d 113, 2016 Miss. LEXIS 121 (Miss. 2016).

Warranty deed which was filed in the wrong judicial district was void as to a utility because the utility acquired its interest to the subject real property in a quick-take condemnation action without notice of the misfiled deed. Harrison County Util. Auth. v. Walker, 143 So.3d 608, 2014 Miss. App. LEXIS 19 (Miss. Ct. App.), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 386 (Miss. 2014).

Dismissal of an eminent domain proceeding under Miss. Code Ann. §11-27-15 was properly denied because two owners were unable to show that an electric association’s taking was not for public use, and any incidental benefit to surrounding landowners did not defeat the taking of the owners’ property; the association wanted to construct a power line to supply its customers with adequate voltage. Knight v. S. Miss. Elec. Power Ass'n, 943 So. 2d 81, 2006 Miss. App. LEXIS 667 (Miss. Ct. App. 2006).

While the question of whether the taking of property is necessary is a legislative question which the courts should not disturb absent fraud or abuse of discretion, the question of whether there is a public use is a judicial question without regard to legislative assertions that the use is public; thus, a trial court did not err when it determined whether a landowner’s property was in fact taken for a contemplated public use without giving discretion to the city legislature’s determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

A trial court did not err by determining that the condemnor city, rather than the landowner, had the burden of proving that the landowner’s property was being taken for a public use, even though the city legislature had made a determination of public necessity. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

The evidence was sufficient to support a trial court’s dismissal of a city’s condemnation petition based on a finding of no public use where the city’s contract with a gaming corporation for use of the land for the alleged purpose of urban renewal did not comply with §43-35-19(b)’s competitive bidding requirement, and the city failed to provide conditions, restrictions, or covenants in its contract with the gaming corporation to ensure that the property would be used for the purpose of gaming enterprise or other related establishments. Mayor of Vicksburg v. Thomas, 645 So. 2d 940, 1994 Miss. LEXIS 548 (Miss. 1994).

In a hearing on a motion to dismiss an eminent domain action on the ground that the taking is not one for public use, the court cannot require the owners, who do not have the burden of proof on the issue of public use, to assume the burden of going forward with the evidence; to penalize owners for not doing so would be against the construction that the Supreme Court of Mississippi has stated must be placed on the eminent domain statutes. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

In a hearing on a motion to dismiss an eminent domain action on the ground that the taking was not one for public use, the condemnor failed to meet its burden of proof where the primary purpose of the taking was to sell the property to another private party who would develop it and the incidental purpose was to remove slum and blighted conditions in the area, and therefore an evidentiary hearing would be necessary to determine whether the use to which the land would be put had a primarily public purpose. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

In a hearing on a motion to dismiss an eminent domain action on the ground that the taking was not one for public use, the mandate of Article 3, § 17 of the Mississippi Constitution that the question of public use be decided as a judicial, not a legislative, question was not complied with where there was merely a legislative assertion of public use but no evidence that the use would in fact be public. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

A circuit court erred in reducing the acreage of a railroad right-of-way sought to be condemned by the State for a penitentiary based on its finding that the State had shown no need for more than a short stretch of the right-of-way where the circuit court found neither fraud nor clear abuse of discretion. Governor's Office of General Services v. Carter, 573 So. 2d 736, 1990 Miss. LEXIS 839 (Miss. 1990).

Under §11-27-15, the Special Court of Eminent Domain has the power to dismiss condemnation proceedings for certain reasons, particularly if the court finds that there is no public necessity for the taking or that the use alleged to be a public use is not in law a public use for which private property may be taken; accordingly, where the Court found that no Mississippi customer would be served by a high voltage transmission line, and where the primary purpose of that line was for interstate sales, the trial judge properly dismissed a condemnation petition on the basis that there was no public necessity for the taking of the particular property or part thereof. Mississippi Power & Light Co. v. Conerly, 460 So. 2d 107, 1984 Miss. LEXIS 2080 (Miss. 1984).

2. Appeals.

An appeal may be taken immediately from a ruling on a motion to dismiss an eminent domain petition. Winters v. City of Columbus, 735 So. 2d 1104, 1999 Miss. App. LEXIS 142 (Miss. Ct. App. 1999).

RESEARCH REFERENCES

ALR.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 715, 716 et seq.

CJS.

29A C.J.S., Eminent Domain §§ 571, 572 et seq.

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

§ 11-27-17. Oath of jurors.

When the jury shall be so impaneled, the jurors shall be sworn as follows: “I do solemnly swear or affirm that as a member of this jury I will discharge my duty honestly and faithfully, to the best of my ability, and that I will a true verdict render according to the evidence, without fear, favor, or affection, and that I will be governed by the instructions of the court. So help me God.”

HISTORY: Codes, 1942, § 2749-09; Laws, 1971, ch. 520, § 9, eff from and after January 1, 1972.

Cross References —

Impaneling of jury, see §11-27-13.

Oath of petit jurors, see §13-5-71.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

§ 11-27-19. Evidence of value; award and interest.

Evidence may be introduced by either party, and the jury may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation and actions as may be proper in the premises. Evidence of fair market value shall be established as of the date of the filing of the complaint. Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the jury from the date of the filing of the complaint until payment is actually made; provided, however, that interest need not be paid on any funds deposited by the plaintiff and withdrawn by the defendants prior to judgment. At the conclusion of the trial, the court shall instruct the jury in accordance with the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1942, § 2749-10; Laws, 1971, ch. 520, § 10; Laws, 1991, ch. 573, § 65, eff from and after July 1, 1991.

Cross References —

Jury viewing the place in question, see §13-5-91.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Evidence of damages in general.

4. Specific items of damages.

5. Value of land.

6. —Value for particular purpose.

7. Burden of proof.

8. View of premises.

1. In general.

Owner was properly awarded eight percent interest from the date the petition to condemn was filed, rather than from the date a law firm improperly filed a lis pendens. Lehman v. Miss. Transp. Comm'n, 127 So.3d 277, 2013 Miss. App. LEXIS 363 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 658 (Miss. 2013).

In a condemnation proceeding, the trial court erred when it compounded the interest and made a distinction between pre- and post-judgment interest because the eminent domain statutory scheme provided a specific provision for interest in Miss. Code Ann. §11-27-19, and eminent domain judgments were not based on notes, accounts, sales or contracts; therefore, Miss. Code Ann. §75-17-1(1) and Miss. Code Ann. §75-17-7 did not apply to eminent domain judgments, and also “legal interest” was simple interest, not compounded interest. Dedeaux Util. Co. v. City of Gulfport, 938 So. 2d 838, 2006 Miss. LEXIS 529 (Miss. 2006).

Where public improvements are to be financed by a special assessment upon a class of property owners, a condemnee may not claim the present value of the assessment in diminution of the value of the remainder of his or her property after a portion has been taken. Dear v. Madison County by & Through Madison County Bd. of Supervisors, 649 So. 2d 1260, 1995 Miss. LEXIS 32 (Miss. 1995).

A trial judge in an eminent domain proceeding erred in excluding the landowners’ evidence of appraised value and comparable sales of residential lots within the city limits which were zoned the same as the condemned property and which the landowners contended supported a viable valuation of their land based upon development of their property into lots for single-family residences, the use for which the property had been restricted through zoning by the municipality, and that error was exacerbated by the judge’s admission into evidence of only the municipality’s valuation of the landowners’ property which was dependent for support upon distant sales of land that were zoned agricultural rather than residential. Dennis v. City Council of Greenville, 646 So. 2d 1290, 1994 Miss. LEXIS 573 (Miss. 1994).

Although the method of valuation for ad valorem tax purposes does not mirror the eminent domain concept of fair market value, some of the same factors are used in the different methods of valuation, and therefore tax appraisals are admissible to impeach the government’s appraisers in an eminent domain action where the assessed valuation is related to market value. Morley v. Jackson Redevelopment Auth., 632 So. 2d 1284, 1994 Miss. LEXIS 75 (Miss. 1994).

A court did not err in refusing to allow the landowners to call the court-appointed expert appraiser as a witness in an eminent domain trial. State Highway Com. v. Hayes, 541 So. 2d 1023, 1989 Miss. LEXIS 182 (Miss. 1989).

In an eminent domain proceeding arising from the condemnation of land for the purpose of widening a highway, the highway department counsel’s repeated statements in closing argument that the jurors were citizens and taxpayers and the highway department was working for them were for the purpose of inflaming the minds of the jurors and constituted reversible error. Dykes v. State Highway Com., 535 So. 2d 1349, 1988 Miss. LEXIS 572 (Miss. 1988).

Aesthetic value per se is not compensable in an eminent domain proceeding. Aesthetics enter into such a proceeding only insofar as they affect the fair market value of property. Thus, no independent damages were payable as a result of the destruction of oak trees on residential property, although a beautiful frontage of lined oak trees could affect the fair market value of residential property. Mississippi State Highway Com. v. Viverette, 529 So. 2d 896, 1988 Miss. LEXIS 321 (Miss. 1988).

In an eminent domain case, a comparable sale, on which an expert witness purports to rely, after the date of the taking constitutes no per se basis for objection to its admissibility in evidence or to the valuation expert relying on it and forming his opinion of value, so long as the valuation opinion ultimately given reflects the value of the property on the date of the taking. Competent appraisal and valuation experts should be expected to use and adjust both before and after comparable sales so that they form a reliable indication of value at the date of the taking. Mississippi State Highway Com. v. Viverette, 529 So. 2d 896, 1988 Miss. LEXIS 321 (Miss. 1988).

Courts should be particularly loath to disturb a jury’s eminent domain award where the jury has personally viewed the premises. Mississippi State Highway Com. v. Viverette, 529 So. 2d 896, 1988 Miss. LEXIS 321 (Miss. 1988).

Mississippi recognizes before and after rule in determining measure of damages when part of tract of land is taken for public use, and while testimony as to comparable land sales is admissible in establishing fair market value of condemned property, it is error to allow jury to consider evidence of sales of non-comparable property; appraisers for landowner failed to establish probability that subject land would either be used within reasonable time for commercial purposes, or that there was demand for such property for those purposes. State Highway Com. v. Smith, 511 So. 2d 881, 1987 Miss. LEXIS 2494 (Miss. 1987).

Admission of testimony of landowner regarding loss of profits was reversible error due to uncertainty and speculation involved in future of any business; testimony of landowner regarding future profits was even more speculative because landowner did not even have business located on property condemned on date of filing of application for special court of eminent domain. State Highway Com. v. Smith, 511 So. 2d 881, 1987 Miss. LEXIS 2494 (Miss. 1987).

Eminent domain award sustained where jury had personally viewed premises, court expressing view that any substantial evidence in record supporting jury’s damage assessment would preclude reversal where such viewing had occurred. State Highway Com. v. Havard, 508 So. 2d 1099, 1987 Miss. LEXIS 2582 (Miss. 1987).

Fair market value of property taken and damage to remainder are components of due compensation; while such items as noise attributable to increased traffic and increased proximity of highway to residents may not form distinct elements of damage, such matters may be considered in so far as they impair fair market value of property remaining after taking, and question of whether following taking it may be more difficult to maneuver automobile in and out is matter that may affect fair market value of the property remaining after taking. State Highway Com. v. Havard, 508 So. 2d 1099, 1987 Miss. LEXIS 2582 (Miss. 1987).

The Supreme Court is particularly loath to disturb a jury’s condemnation award where the jury has personally viewed the property being taken. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

The just compensation in a partial land taking case is generally the value of the part taken plus all damages which the residue of the property suffers, including a diminution in the value of the remainder. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

There is no talismanic test which can mechanically be applied to determine whether one can give an opinion regarding value in an eminent domain proceeding; all that is necessary is that the witness establish his substantial familiarity with the fair market value of properties of the type in issue and a like familiarity with the property in issue. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

Sale of leasehold interest in a sawmill which had 20 years to run with an option to renew for an additional 20 years could be considered as a comparable sale in a proceeding to take sawmill property. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

A partial taking which rendered the remainder unsuitable for continued use as a sawmill, the property’s highest and best use, represented a loss bearing significantly on the owner’s due compensation. Anderson v. Guy, 488 So. 2d 782, 1986 Miss. LEXIS 3031 (Miss. 1986).

The condemnor has the burden of proving the value of the condemned property. Ellis v. Mississippi State Highway Com., 487 So. 2d 1339, 1986 Miss. LEXIS 2456 (Miss. 1986).

While transactions regarding the property to be taken-whether sales or secured transactions-may be the subject of testimony in condemnation proceedings, such testimony may be given only by one having proper knowledge and after proper foundation has been laid. Ellis v. Mississippi State Highway Com., 487 So. 2d 1339, 1986 Miss. LEXIS 2456 (Miss. 1986).

Trial judge may refuse to admit videotape depicting property involved in eminent domain proceedings where jury has had actual viewing of premises. Trustees of Wade Baptist Church v. Mississippi State Highway Com., 469 So. 2d 1241, 1985 Miss. LEXIS 2094 (Miss. 1985).

Neither access to property remaining after taking for public road nor parking on property are attributes or capabilities of land subject to separate valuation in eminent domain proceedings; they may be considered only insofar as they affect value of property remaining after taking. Trustees of Wade Baptist Church v. Mississippi State Highway Com., 469 So. 2d 1241, 1985 Miss. LEXIS 2094 (Miss. 1985).

In an eminent domain proceeding, Miss Code §11-27-19 was the proper statute applicable for the jury to view the premises. Smith v. Mississippi State Highway Com., 423 So. 2d 808, 1982 Miss. LEXIS 2375 (Miss. 1982).

It is ordinarily wise to afford the property owner a jury view in eminent domain cases and inconvenience alone must be regarded as an insubstantial reason for refusing a view. Barrett v. State Highway Com., 385 So. 2d 627, 1980 Miss. LEXIS 2031 (Miss. 1980).

Under the quick-take law (Code 1972, §§11-27-81 through11-27-91), the defendants have the absolute right to withdraw the funds deposited by the petitioner subject only to the order of the court as to their distribution, and the petitioner has no further control of the funds and no right to withdraw them after they are deposited; under these circumstances, the petitioner should not and is not required to pay interest on the amount deposited after the date of its deposit. Mississippi State Highway Com. v. Owen, 310 So. 2d 920, 1975 Miss. LEXIS 1923 (Miss. 1975).

In arriving at fair market value of entire tract before taking, evidence of the reproduction cost of buildings on the property taken is admissible as a factor to be considered by the jury in arriving at a fair market value; although whether testimony relative to the reproduction cost is admissible in a given case lies largely in the sound discretion of the trial judge, such testimony is always admissible when it is established that the improvements are reasonably adapted to the land and the depreciated value of the improvement adds to the value of the entire property by the amount of their depreciated value; when such testimony is admitted, the condemnor is entitled to an instruction that such testimony is not evidence of market value but only a factor to be considered along with the other testimony in arriving at a fair market value. Mississippi State Highway Com. v. Owen, 308 So. 2d 228, 1975 Miss. LEXIS 1854 (Miss. 1975).

In the absence of a provision for a setoff of rental income against the interest earned on a judgment, the owner of property being condemned who derives income from the property after the petition is filed is not required to reduce the interest by the amount collected. Redevelopment Authority of Meridian v. Holsomback, 291 So. 2d 712, 1974 Miss. LEXIS 1737 (Miss. 1974).

2. Constitutionality.

Provision fixing the applicable date for determining due compensation in an eminent domain proceeding as the date that the complaint was filed rather than the date the property was transferred, Miss. Code Ann. §11-27-19, was unconstitutional as applied to a private utility that provided service for eight more years after its public takeover began. Dedeaux Util. Co. v. City of Gulfport, 63 So.3d 514, 2011 Miss. LEXIS 191 (Miss. 2011).

3. Evidence of damages in general.

It was not error for the special court to preclude testimony on damages to an owner’s remaining property based on loss of access because the owner did not have the right of access along a sight flare in the before condition; if there was no change in the access, there could be no compensation for damages regarding loss of access, and the owner retained access along a road and along the highway outside of the sight flare. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

Special court of eminent domain did not abuse its discretion in disallowing testimony on damages to the remainder of an owner’s for the taking of access along a highway by the Mississippi Transportation Commission (MTC) because the right of MTC to regulate entrances into the highway under the police power was well established and not a compensable taking. Gateway United Methodist Church v. Miss. Transp. Comm'n, 147 So.3d 900, 2014 Miss. App. LEXIS 523 (Miss. Ct. App. 2014).

A judgment in an eminent domain proceeding would be reversed and remanded where the only evidence of fair market value presented by the county was a two year old appraisal and the appraiser testified that her outdated figures pertaining to value could not possibly have accurately reflected the value of the property on the critical date. Williamson v. Lowndes County, 723 So. 2d 1231, 1998 Miss. App. LEXIS 950 (Miss. Ct. App. 1998).

Although no error was committed in permitting one of the condemnees to testify as to the before and after value of property, a portion of which was sought to be condemned, the fact that the witness admitted that she did not have “any reasonable basis” for her opinion rendered her testimony valueless insofar as the determination of damages was concerned. Murray v. Borden Co., 186 So. 2d 238, 1966 Miss. LEXIS 1301 (Miss. 1966).

It was reversible error to admit, in an action for the acquisition of a highway right of way, testimony that the United States government was paying 90 percent of the cost of the project. Mississippi State Highway Com. v. Nixon, 253 Miss. 636, 178 So. 2d 680, 1965 Miss. LEXIS 1022 (Miss. 1965).

A judgment awarding damages in an eminent domain proceeding will be reversed where as a whole so much incompetent, irrelevant, and immaterial evidence was admitted on behalf of the landowner, having nothing to do with the value of the property to be taken and introduced solely for the purpose of prejudicing the jury and over the objection of the condemnor, that there could not have been a fair trial. Mississippi State Highway Com. v. Deavours, 251 Miss. 552, 170 So. 2d 639, 1965 Miss. LEXIS 882 (Miss. 1965).

In an eminent domain proceeding by the state highway department for the condemnation and appropriation of landowner’s home place where the evidence as to the value of the land taken was in conflict, an award, based on a jury verdict, in favor of the landlord was affirmed by an equally divided vote of the justices. Mississippi State Highway Com. v. Gabbert, 238 Miss. 687, 119 So. 2d 774, 1960 Miss. LEXIS 458 (Miss. 1960).

In an appeal from the award of damages by a special court of eminent domain for the taking of a public highway right of way through landowner’s land, trial court correctly instructed for the county that the jury in arriving at its verdict should not consider any elements of inconvenience or other elements which were speculative and remote. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

No verdict for larger sum than amount of damage to owners for land taken as estimated by witnesses for owner who properly qualifies their testimony by the before and after value should be permitted to stand. Mississippi State Highway Com. v. Burwell, 206 Miss. 490, 39 So. 2d 497, 1949 Miss. LEXIS 275 (Miss.), modified, In re Hart's Estate, 206 Miss. 498, 40 So. 2d 263, 1949 Miss. LEXIS 277 (Miss. 1949).

Under unusual conditions where the before and after values test is inapplicable to the peculiar facts, the court will adopt a rule supported by reason, logic and common sense, designed to result, as far as may be humanly possible, in ascertainment of true, accurate damage suffered by property owner. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

It was the province of the jury to fix damages from conflicting testimony in condemnation proceedings by state highway commission. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

The formula or the rule of before and after taking must be construed in connection with the facts of the case the court is then considering and the particular questions there presented for decision. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

An instruction on the measure of damages in an eminent domain proceeding that it is the difference between the fair market value of the property before taking and the fair market value of what remained after the land was taken and a public road constructed, cannot be complained of by the parties to the proceeding because it failed to include the qualification that general benefits and injuries shared by the general public should not be considered, and that the market value of the land must be that immediately before and after the taking, since the landowner requested such instruction and the highway commission, seeking condemnation, was not harmed thereby where there was no evidence by the commission as to general benefits and no evidence by the landowner as to general injuries. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Evidence of remote damage excluded. Board of Levee Comm'rs v. Lee, 85 Miss. 508, 37 So. 747, 1904 Miss. LEXIS 147 (Miss. 1904).

A judgment for damages for land taken and damaged will not be disturbed on the ground that it is excessive when under the evidence a judgment for a much larger sum might have been given. Board of Levee Comm'rs v. Lee, 85 Miss. 508, 37 So. 747, 1904 Miss. LEXIS 147 (Miss. 1904).

4. Specific items of damages.

Although there is a danger in admitting testimony as to specific items of damage in an eminent domain proceeding, in that it could result in the pyramiding of damages by the jury, such testimony is competent when related to the before and after value rather than as a basis for a separate verdict, and in a proceeding involving the taking of a grocery store, testimony as to the cost of removing the stock of goods and store fixtures from the premises was admissible, as a consequence of the taking and as an element of damage. Blackwelder v. Bryant, 246 So. 2d 512, 1971 Miss. LEXIS 1400 (Miss. 1971).

In an eminent domain proceeding for a right of way for a public highway which ran diagonally through a 70-acre tract, used by the landowner principally for growing timber, where admittedly the existing fence was in bad condition, evidence concerning the alleged necessity of fencing each side of the right of way, its cost, and its bearing upon the after-taking value of the remaining land, was properly excluded. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

In highway condemnation proceedings involving inconvenience to existing owner and in driving his cattle and stock over, and in going to and from a part of his farm across, the proposed highway, testimony as to the effect of such inconvenience as it affected the before and after market value of the remaining property, plus the value of the property actually taken, was in accordance with the correct rule. Mississippi State Highway Com. v. Dodson, 207 Miss. 229, 42 So. 2d 179, 1949 Miss. LEXIS 332 (Miss. 1949).

The fact that farm buildings would have to be moved or rebuilt in order to face a new highway as they had faced an old highway is not a proper element of damages. Mississippi State Highway Com. v. Loper, 33 So. 2d 288 (Miss. 1948).

While a witness in testifying as to damages for the taking of a strip of land which would divide the owner’s property into two segments may take into consideration any necessary inconvenience that would probably be taken into consideration by a prospective purchaser, the witness may not place his estimate on the inconvenience to the present landowner. Mississippi State Highway Com. v. Dodson, 203 Miss. 10, 33 So. 2d 287, 1948 Miss. LEXIS 223 (Miss. 1948).

Landowner, in condemnation proceedings, cannot recover damages for specific injuries to his remaining land, but evidence of such injuries is competent if, but not unless, such would affect the market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Admitting evidence, in proceeding to condemn highway right of way, of specific injuries to remaining land, such as cost of rebuilding and removing barns and silo, digging new pools, and constructing three miles of fence, was not error where landowner was careful to connect the specific items of cost with, and have witnesses consider them only as bearing upon, market value of the remaining land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Question in condemnation proceeding of prior interest and rate thereof, as element of damage, should have been admitted to and passed upon by the jury, and the amount of the verdict constituted the total damage fixed by the jury, and the trial judge had no power to add thereto prior interest, nor to fix the rate thereof. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

Where the rule that the measure of damages in an eminent domain proceeding is the difference between the fair market value of the property before the taking and the fair market value after the taking, is applicable, the owner of the land cannot recover damages for specific injuries to the remaining land, although evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

A witness testifying as to the market value of the land before the taking for the construction of a highway and the market value after the taking, should not have been permitted in arriving at the latter value to take into consideration specific items of injury to the remaining land and the expense incurred thereby as separate elements of damages. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

Evidence by landowner in an eminent domain proceeding to condemn land for the construction of a highway that the State Highway Commission had been requested, but refused, to construct a passageway under the highway connecting the two separate portions of the landowner’s property, and that if it had been constructed the damages would have been greatly reduced thereby, should not have been admitted, since the Commission was under no duty to construct such an underpass. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

In eminent domain, permitting jury to consider evidence of danger to cattle and people crossing highway in arriving at depreciation of value of farm, held error. State Highway Com. v. Day, 181 Miss. 708, 180 So. 794, 1938 Miss. LEXIS 111 (Miss. 1938).

In determining damages to a farm by the building of a railroad across it, proof that laborers would stop to look at the train, teams would run away, that livestock would likely be killed by running trains, and foreign grasses would scatter over the farm, are not to be considered as elements of damage. Yazoo & M. V. R. Co. v. Jennings, 90 Miss. 93, 43 So. 469, 1907 Miss. LEXIS 66 (Miss. 1907).

The opinions of witnesses as to what would be the yield in crops of the lands are inadmissible. Board of Levee Comm'rs v. Hendricks, 77 Miss. 483, 27 So. 613, 1899 Miss. LEXIS 86 (Miss. 1899).

5. Value of land.

Where the condemnees’ appraiser, who had no knowledge of the value of the land prior to condemnation, was permitted to testify as to the value of the land, but the court held the testimony to be incompetent and instructed the jury to disregard it, and there was no reason to believe that the jury failed to heed the court’s admonition, introduction of the testimony worked no prejudice to the condemnor. Mississippi State Highway Com. v. Reeves, 257 So. 2d 527, 1972 Miss. LEXIS 1466 (Miss. 1972).

In arriving at the before and after value in an eminent domain proceeding, a witness may testify as to any injuries which depreciate the value of the remaining land, provided that the witness connects such injuries with the before and after value and considers them not as a specific item of damage but as bearing on such market value. Mississippi State Highway Com. v. McArn, 246 So. 2d 512, 1971 Miss. LEXIS 1401 (Miss. 1971).

A jury verdict in excess of $600 per acre for cut-over timber land was so excessive as to indicate that the jury was influenced by bias, passion or prejudice in arriving at such a valuation on property taken for highway right of way purposes. Mississippi State Highway Com. v. Trammell, 252 Miss. 413, 174 So. 2d 359, 1965 Miss. LEXIS 1113 (Miss. 1965).

The land with which the subject land is being compared does not have to be of the same size or acreage, or approximately so, if the other criteria essential to a fair comparison are present, for to hold otherwise would make it almost impossible to find a comparable tract of land for sale which could be used as a means of evaluating the fair market value or due compensation of the land to be taken. Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So. 2d 196, 1965 Miss. LEXIS 1131 (Miss. 1965).

Evidence of the price paid for condemned land in a sale prior to the proceeding in which the condemnation is sought, and especially evidence as to the purchase price paid by the condemnee, is admissible generally, at least where the sale is voluntary and is not too remote in point of time. Mississippi State Highway Com. v. Hillcrest Farm, Inc., 252 Miss. 154, 171 So. 2d 491, 1965 Miss. LEXIS 1086 (Miss. 1965).

The cost of removing personal property from the premises condemned may be shown as bearing upon the question of value. Mississippi State Highway Com. v. Rogers, 242 Miss. 439, 136 So. 2d 216, 1961 Miss. LEXIS 581 (Miss. 1961).

The mere fact that $15,000 had never been paid for a home in a community in which the condemned property was located was not evidence that the condemnee’s property was not worth that amount. Mississippi State Highway Com. v. Gabbert, 238 Miss. 687, 119 So. 2d 774, 1960 Miss. LEXIS 458 (Miss. 1960).

In eminent domain actions the opinions of experts as to values are not to be passively received and blindly followed, but are to be weighed by the jury and judged in view of all of the testimony in the case and the jury’s own general knowledge of affairs, and are to be given only such consideration as the jury may believe them entitled to receive. Warren County v. Harris, 211 Miss. 80, 50 So. 2d 918, 1951 Miss. LEXIS 333 (Miss. 1951).

In an eminent domain suit involving the taking by the county for highway purposes of a small strip of land, the jury is not required to accept the opinion evidence of an expert witness who testifies for the landowner of the county. Warren County v. Harris, 211 Miss. 80, 50 So. 2d 918, 1951 Miss. LEXIS 333 (Miss. 1951).

Damages of $5,000 for a condemned highway right of way across middle of a farm for a distance of a mile and a half, consisting of 35.1 acres, was sustained by the evidence, where witnesses estimated the value of the land taken and the reduced value of that remaining at from $2,000 to $15,000, especially where jurors personally inspected and examined the land. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

In an eminent domain proceeding it is competent for a witness, familiar with the land sought to be taken, to testify about the crops which had been produced on it, its location, distance from transportation facilities, and the character of the soil, and therefrom to give his opinion of the value, although he is not an expert. Board of Levee Comm'rs v. Nelms, 82 Miss. 416, 34 So. 149, 1903 Miss. LEXIS 142 (Miss. 1903).

Deeds to neighboring lands are not admissible in evidence in condemnation proceedings. Board of Levee Comm'rs v. Nelms, 82 Miss. 416, 34 So. 149, 1903 Miss. LEXIS 142 (Miss. 1903).

Sales of neighboring lands of like quality as that sought to be condemned and prices actually paid, may be proved in condemnation proceedings in order to weaken opinions of value. Board of Levee Comm'rs v. Nelms, 82 Miss. 416, 34 So. 149, 1903 Miss. LEXIS 142 (Miss. 1903).

Opinion evidence of the value of the lands sought to be taken is admissible in condemnation proceedings although no sales of neighboring lands have been made. Board of Levee Comm'rs v. Nelms, 82 Miss. 416, 34 So. 149, 1903 Miss. LEXIS 142 (Miss. 1903).

The selling cash value of lands should be awarded the owner and not its theoretical value as gathered from the opinion of witnesses. Board of Levee Comm'rs v. Hendricks, 77 Miss. 483, 27 So. 613, 1899 Miss. LEXIS 86 (Miss. 1899).

6. —Value for particular purpose.

It is reversible error to admit evidence of the adaptability of land to a particular purpose where no immediate need or prospect of its being used for such purpose was disclosed by the evidence. Mississippi State Highway Com. v. Hall, 252 Miss. 863, 174 So. 2d 488, 1965 Miss. LEXIS 1155 (Miss. 1965).

The testimony of an expert witness introduced on behalf of the landowner that property used exclusively for the growing of timber was worth $715 per acre, exclusive of the timber, was so unreasonable that it was completely unbelievable and should have been excluded. Mississippi State Highway Com. v. Ratcliffe, 251 Miss. 785, 171 So. 2d 356, 1965 Miss. LEXIS 902 (Miss. 1965), aff'd, 187 So. 2d 304, 1966 Miss. LEXIS 1342 (Miss. 1966).

In eminent domain proceeding, adaptability of land for particular purpose is immaterial unless present market value is enhanced thereby. State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277, 1936 Miss. LEXIS 122 (Miss. 1936).

Evidence of the value of the land as a steamboat landing is competent. Board of Levee Comm'rs v. Lee, 85 Miss. 508, 37 So. 747, 1904 Miss. LEXIS 147 (Miss. 1904).

7. Burden of proof.

In action by owner, or lessee, against State Highway Commission for damages to plaintiff’s property and business resulting from raising of grade of highway adjoining plaintiff’s property, burden is on plaintiff to show legal damage and extent thereof. Baker v. Mississippi State Highway Com., 204 Miss. 166, 37 So. 2d 169, 1948 Miss. LEXIS 352 (Miss. 1948).

Burden of proof is on condemnor on issue of damages sustained by the taking. Mississippi State Highway Com. v. Treas, 197 Miss. 670, 20 So. 2d 475, 1945 Miss. LEXIS 305 (Miss. 1945).

While providing that evidence may be introduced by either party, this section [Code 1942, § 2759] fails to fix the burden of proof; however, the party who has the burden of proof may be determined by considering which would succeed if no evidence was offered, and by examining what would be the effect of striking out of the record the allegations to be proved, the onus being on the party who, under such test, would fail. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

In an eminent domain proceeding by the state highway commission to condemn land for the construction of a state highway, the burden of proof on the question of damages was on the highway commission, and the court below did not err in refusing an instruction that the burden of proof was upon the landowner to establish by a preponderance of the evidence the damages sustained by the taking of the property for a public highway. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

On the question of burden of proof, in a case wherein the highway commission seeks to condemn land, the commission could not stop by simply showing what it wanted for a right of way without going into the question of damages to the landowner, and therefore it must make out its case before the landowner is called on to introduce evidence. Mississippi State Highway Com. v. Hillman, 189 Miss. 850, 198 So. 565, 1940 Miss. LEXIS 153 (Miss. 1940).

8. View of premises.

There was no problem with a jury instruction in an eminent domain matter where the jury was instructed that the land had already been taken under the so-called “quick take law,” Miss. Code Ann. § 11-27 -81 and the jury had viewed the property in accordance with Miss. Code Ann. §11-27-19; the jury was to determine the value of the taking. North Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm'n, 912 So. 2d 1118, 2005 Miss. App. LEXIS 750 (Miss. Ct. App. 2005).

A jury is not required to enter the subject property in order for a jury viewing to be sufficient. Ford v. Destin Pipeline Co., 809 So. 2d 573, 2000 Miss. LEXIS 118 (Miss. 2000).

Under the facts of the case there was no abuse of discretion on the part of the trial court in permitting the jury to view the property. Murray v. Borden Co., 186 So. 2d 238, 1966 Miss. LEXIS 1301 (Miss. 1966).

In an appeal from an award of damages by special court of eminent domain for the taking of a public highway right of way through landowner’s land, trial court’s instruction, advising the jury that the purpose of the view was to enable it to have a more intelligent understanding of the land and the location of the proposed road, was proper, where the jury was further advised to consider all the other evidence along with its observations. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

Although following the award of damages for the taking of a right of way for a public highway through the landowner’s tract in the special court of eminent domain, the county had proceeded to clear most of the right of way and cut the trees off it, in view of landowner’s evidence that the timber which had been upon the right of way was the same as that upon the remainder of the landowner’s tract, the district court did not err in permitting the jury to view and inspect the land. Rasberry v. Calhoun County, 230 Miss. 858, 94 So. 2d 612, 1957 Miss. LEXIS 432 (Miss. 1957).

RESEARCH REFERENCES

ALR.

Eminent domain: valuation of land and improvements and fixtures thereon separately or as unit. 1 A.L.R.2d 878.

Elements and measure of lessee’s compensation for taking or damaging leasehold in eminent domain. 3 A.L.R.2d 286.

Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property. 6 A.L.R.2d 1197.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner’s promissory statements as to character of use or undertakings to be performed by it. 7 A.L.R.2d 364.

Unaccepted offer for purchase or sale of real property as evidence of value. 7 A.L.R.2d 781.

Elements and measure of compensation in eminent domain for temporary use and occupancy. 7 A.L.R.2d 1297.

Admissibility in condemnation proceedings of opinion evidence as to probable profits derivable from land condemned if devoted to particular agricultural purposes. 16 A.L.R.2d 1113.

Liability of condemner in eminent domain proceedings for fees of expert witnesses who testified for property owner. 18 A.L.R.2d 1225.

Admissibility, in condemnation proceeding, of evidence as to price paid for property during pendency of proceeding. 55 A.L.R.2d 781.

Admissibility, in condemnation proceeding, of evidence as to price paid on prior sale. 55 A.L.R.2d 791.

Right to open and close argument in trial of condemnation proceedings. 73 A.L.R.2d 618.

View by jury in condemnation proceedings. 77 A.L.R.2d 548.

Propriety and effect, in eminent domain proceeding, of instruction to the jury as to landowner’s unwillingness to sell property. 20 A.L.R.3d 1081.

Propriety and effect of argument or evidence as to financial status of parties in eminent domain proceeding. 21 A.L.R.3d 936.

Good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain. 58 A.L.R.3d 566.

Loss of liquor license as compensable in condemnation proceeding. 58 A.L.R.3d 581.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Eminent domain: Consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 A.L.R.3d 534.

Good will as element of damages for condemnation of property on which private business is conducted. 81 A.L.R.3d 198.

Eminent domain: right of owner of land not originally taken or purchased as part of adjacent project to recover, on enlargement of project to include adjacent land, enhanced value of property by reason of proximity to original land-state cases. 95 A.L.R.3d 752.

Unsightliness of powerline or other wire, or related structure, as element of damages in easement condemnation proceeding. 97 A.L.R.3d 587.

Running of interest on judgment where both parties appeal. 11 A.L.R.4th 1099.

Sufficiency of condemnor’s negotiations required as preliminary to taking in eminent domain. 21 A.L.R.4th 765.

Eminent domain: compensability of loss of view from owner’s property-estate cases. 25 A.L.R.4th 671.

Eminent domain: compensability of loss of visibility of owner’s property. 7 A.L.R.5th 113.

What law determines just compensation when licensee of Federal Power Commission exercises power of eminent domain in federal court under § 21 of Federal Power Act (16 USCS § 814). 51 A.L.R. Fed. 929.

Method of determining rate of interest allowed on award to owner of property taken by United States in eminent domain proceeding. 56 A.L.R. Fed. 477.

CJS.

29A C.J.S., Eminent Domain §§ 509 et seq.

Lawyers’ Edition.

No preaward interest held due in straight condemnation proceedings. 81 L. Ed. 2d 201.

§ 11-27-21. Damage to remainder; determination.

In determining damages, if any, to the remainder if less than the whole of a defendant’s interest in property is taken, nothing shall be deducted therefrom on account of the supposed benefits incident to the public use for which the petitioner seeks to acquire the property.

HISTORY: Codes, 1942, § 2749-11; Laws, 1971, ch. 520, § 11, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Where public improvements are to be financed by a special assessment upon a class of property owners, a condemnee may not claim the present value of the assessment in diminution of the value of the remainder of his or her property after a portion has been taken. Dear v. Madison County by & Through Madison County Bd. of Supervisors, 649 So. 2d 1260, 1995 Miss. LEXIS 32 (Miss. 1995).

Fair market value of property taken and damage to remainder are components of due compensation; while such items as noise attributable to increased traffic and increased proximity of highway to residents may not form distinct elements of damage, such matters may be considered in so far as they impair fair market value of property remaining after taking, and question of whether following taking it may be more difficult to maneuver automobile in and out is matter that may affect fair market value of the property remaining after taking. State Highway Com. v. Havard, 508 So. 2d 1099, 1987 Miss. LEXIS 2582 (Miss. 1987).

RESEARCH REFERENCES

ALR.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Eminent Domain: consideration of fact that landowner’s remaining land will be subject to special assessment in fixing severance damages. 59 A.L.R.3d 534.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain §§ 322 et seq.

4 Am. Jur. Proof of Facts, Eminent Domain, Proof No. 1 (damages from taking of property in eminent domain).

CJS.

29A C.J.S., Eminent Domain §§ 227 et seq.

§ 11-27-23. Verdict.

In the trial of all cases provided for herein, nine (9) jurors may bring in a verdict as in other civil cases. The verdict of the jury shall be in the following form: “We, the jury, find that the defendant (naming him) will be damaged by the acquisition of his property for the public use, in the sum of_______________Dollars.”

HISTORY: Codes, 1942, § 2749-12; Laws, 1971, ch. 520, § 12, eff from and after January 1, 1972.

Cross References —

Nine jurors returning a verdict in civil cases, see §13-5-93.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Under this section, the only issue for a jury to determine in an eminent domain proceeding is the amount the owner will be damaged by the acquisition of his property for the public use. If damage to other property of the owner occurs during construction on the property taken for public use, such damage is the subject matter of a separate lawsuit. Berry v. United Gas Pipe Line Co., 370 So. 2d 235, 1979 Miss. LEXIS 2611 (Miss. 1979).

In an eminent domain proceeding a directed verdict against the owner of a leasehold interest and an instruction to the jury to find for the land owners alone were erroneous; the jury should have apportioned the damages reached in their single verdict between the lessee and the land owner. Seago Enterprises, Inc. v. Mississippi State Highway Com., 330 So. 2d 588, 1976 Miss. LEXIS 1862 (Miss. 1976).

§ 11-27-25. Judgment.

Upon the return of the verdict, the court shall enter a judgment as follows, viz: “In this case the claim of (naming him or them) to have condemned certain lands named in the complaint, to-wit: (here describe the property), being the property of (here name the owner), was submitted to a jury composed of (here insert their names) on the_______________day of_______________ , A. D.,_______________ , and the jury returned a verdict fixing said defendant’s compensation and damages at_______________Dollars, and the verdict was received and entered. Now, upon payment of the said award, with legal interest from the date of the filing of the complaint, ownership of the said property shall be vested in plaintiff and it may be appropriated to the public use as prayed for in the complaint. Let the plaintiff pay the costs, for which execution may issue.”

HISTORY: Codes, 1942, § 2749-13; Laws, 1971, ch. 520, § 13; Laws, 1991, ch. 573, § 66, eff from and after July 1, 1991.

Cross References —

Extension of term and jurisdiction of court of eminent domain after filing of judgment, see §11-27-29.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

A default judgment should not be allowed a condemnor on his statement of values, but the question of value should have been submitted to the jury by way of a writ of inquiry. Coleman v. Mississippi State Highway Com., 289 So. 2d 918, 1974 Miss. LEXIS 1693 (Miss. 1974).

By condemnation proceedings against the holder of a tax title to the land in question, the state highway commission acquired such holder’s interest therein together with the right to acquire full ownership therein as against the original owner after an occupancy of three years. Baldwin v. Mississippi State Highway Dep't, 187 Miss. 642, 193 So. 789, 1940 Miss. LEXIS 243 (Miss. 1940).

Where the state highway commission condemned a strip of land for highway purposes as against the holder of a tax title thereto, and it went into possession and occupied the same for more than three years, such period of possession without challenge on the part of the original owner destroyed the owner’s right to challenge the commission’s ownership, notwithstanding that the tax sale was void. Baldwin v. Mississippi State Highway Dep't, 187 Miss. 642, 193 So. 789, 1940 Miss. LEXIS 243 (Miss. 1940).

RESEARCH REFERENCES

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 547 et seq.

CJS.

29A C.J.S., Eminent Domain §§ 506 et seq.

§ 11-27-27. Transfer of title; payment and deposits previously made.

Upon return of the verdict and entry of the judgment, the applicant shall pay to defendants, or to the clerk if defendants absent themselves, the differences between the judgment and deposits previously made, if any; shall pay the costs of court, including the cost of jury service as is otherwise provided by law for the court in which the case is tried.Then, ownership of the property described in the petition shall be vested in petitioner and it may use said property as specified in the petition.If deposits perviously made exceed the judgement, then the clerk or defendant to whom disbursement thereof has been made, as the case may be, shall pay such excess to the petitioner.

HISTORY: Codes, 1942, § 2749-14; Laws, 1971, ch. 520, § 14, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

1. In general.

The fee schedule in §25-7-13 applies to actions in eminent domain, and funds handled by the clerk in such actions are monies subject to the commission as authorized under §25-7-13(5). Pursuant to this section, the commission awarded to the clerk may not exceed 1/2 of one percent; however, the amount of the commission is to be determined by the court. In fixing the clerk’s commission, the court should exercise its discretion in light of the responsibility assumed and services rendered by the clerk. The commission paid to the clerk should be paid by the condemning authority since assessment of a fee or commission may not be used to diminish the compensation received by the landowner. Mississippi State Highway Com. v. Herban, 522 So. 2d 210, 1988 Miss. LEXIS 62 (Miss. 1988).

The court in the second trial of an eminent domain action erred in refusing to enter a judgment in favor of the state highway commission in the sum of $1,200 where, after the first trial, the Commission had paid into the registry of the court the judgment amount of $3,500, which was disbursed by the clerk to the landowners, but where the second trial, following a reversal on appeal of the first judgment, had resulted in a verdict of only $2,300 in favor of the landowners. Cox v. Mississippi State Highway Com., 386 So. 2d 1107, 1980 Miss. LEXIS 2061 (Miss. 1980).

The amount of the money judgment awarded by a court of eminent domain for the taking of a right-of-way across 80 acres of land was correctly paid to the circuit clerk where the owners of ten-twelfths interest in the condemned property were parties to the action, but owners of the remaining two-twelfths interest were unaccounted for and were not parties to the action. Evans v. Mississippi Power Co., 206 So. 2d 321, 1968 Miss. LEXIS 1561 (Miss. 1968).

Where the state highway commission condemned a strip of land for highway purposes as against the holder of a tax title thereto, and it went into possession and occupied the same for more than three years, such period of possession without challenge on the part of the original owner destroyed the owner’s right to challenge the commission’s ownership, notwithstanding that the tax sale was void. Baldwin v. Mississippi State Highway Dep't, 187 Miss. 642, 193 So. 789, 1940 Miss. LEXIS 243 (Miss. 1940).

Under Code 1892 §§ 1693 and 1696, where, after the applicant had taken an appeal, it deposited the amount of the award in court and took possession of the land, it waived its right to the appeal. Helm & N. W. R. Co. v. Turner, 89 Miss. 334, 42 So. 377, 1906 Miss. LEXIS 39 (Miss. 1906).

Whether a mortgagee is a proper party to a condemnation proceeding, payment by a levee board to the mortgagor for land condemned, with knowledge of the mortgage, will not preclude recovery by the mortgagee. Board of Mississippi Levee Comm'rs v. Wiborn, 74 Miss. 396, 20 So. 861, 1896 Miss. LEXIS 118 (Miss. 1896).

RESEARCH REFERENCES

ALR.

Condemner’s waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation. 5 A.L.R.2d 724.

Charging landowner with rent or use value of land where he remains in possession after condemnation. 20 A.L.R.3d 1164.

§ 11-27-29. Appeals.

  1. Every party shall have the right to appeal directly to the Supreme Court from the judgment entered in the special court of eminent domain, whether tried in county court or circuit court, by giving notice within ten (10) days from the date of the judgment or final order entered by the court to the court reporter to transcribe the record as taken and by prepaying all costs that may be adjudged against him; and said notice to the court reporter shall be given and the costs shall be paid as is otherwise required by law for appeals to the Supreme Court.If the judgment be in excess of the sum, if any, deposited, and the plaintiff, other than the State of Mississippi or any political subdivision thereof, desires an appeal, he shall deposit a sum, or a good and sufficient surety bond with a surety company authorized to do business in the State of Mississippi acceptable to the clerk, equal to double the amount of the judgment, less the amount of the deposit, if any, which shall be held exclusively to secure all damages assessed against plaintiff.In any case where the deposit exceeds the compensation to be paid the defendants as determined by the final judgment, the excess shall be returned to the plaintiff.If the appeal is by the defendant, it shall not operate as a supersedeas, nor shall the right of the plaintiff to enter in and upon the land and to appropriate the same to public use by delayed.If the appeal be by the State of Mississippi or any political subdivision thereof, no bond or prepayment of costs shall be required, except the Supreme Court filing fee as required by Section 25-7-3.
  2. The term of a special court of eminent domain shall begin when the court is convened as provided by statute and shall continue for ten (10) days immediately following the entry and filing of a judgement or final order with the clerk of the court, and thereafter the court shall have jurisdiction to dispose of any post trial motions or proceedings filed within said ten (10) days.The jurisdiction of a special court of eminent domain shall expire upon the entry and filing with the clerk of a final judgment or order disposing of any post trial motions or proceedings.

HISTORY: Codes, 1942, § 2749-15; Laws, 1971, ch. 520, § 15; Laws, 1978, ch. 335, § 8; Laws, 1980, ch. 366; Laws, 1991, ch. 573, § 67, eff from and after July 1, 1991.

Editor’s Notes —

Laws of 1978, ch. 335, § 40, provides as follows:

“SECTION 40. The provisions of this act shall not apply to any case wherein a petition for appeal has been presented prior to the day this act takes effect, and such appeals shall proceed to final determination with costs collected as though these statutes relating to costs had not been amended, but the provisions hereof shall apply to all other cases then pending and hereafter filed.”

Cross References —

Court of eminent domain, see §11-27-3.

Judgment of court of eminent domain, see §11-27-25.

Appeal to circuit court from board of supervisors or municipal authorities, see §11-51-75.

Appeals from the county court, see §11-51-79.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Courts should be particularly loath to disturb a jury’s eminent domain award where the jury has personally viewed the premises. Mississippi State Highway Com. v. Viverette, 529 So. 2d 896, 1988 Miss. LEXIS 321 (Miss. 1988).

Where the appellant gave notice to the court reporter to transcribe the record within 10 days from the date of judgment pursuant to Code 1972, §11-27-29, and a copy of the notice was filed with the clerk, as required by Code 1972, §9-13-33, within the 45 days allowed by Code 1972, §11-51-5, the notice was sufficient to perfect appellant’s appeal. Mississippi State Highway Com. v. Gresham, 323 So. 2d 100, 1975 Miss. LEXIS 1559, 1975 Miss. LEXIS 1560 (Miss. 1975).

Where the special court of eminent domain was convened during a regular term of the county court and had only one case to try, the term of the special court ended when the final judgment in that case was entered, and the court did not have jurisdiction to hear and determine a motion for a new trial filed after the date of judgment; The motion for a new trial, therefore, did not toll the statute of limitations, which began running on the date the final judgment was entered. Mississippi State Highway Com. v. First Methodist Church, Inc., 323 So. 2d 92, 1975 Miss. LEXIS 1556 (Miss. 1975).

Due compensation requirements of the United States and Mississippi constitutions did not prohibit taxing a landowner with appeal costs and damages pursuant to Code 1972, §§11-3-23 and11-27-29 where he appealed from a judgment in a special court of eminent domain and was not successful in having the award increased. Antley v. Mississippi State Highway Com., 318 So. 2d 847, 1975 Miss. LEXIS 1452 (Miss. 1975).

RESEARCH REFERENCES

ALR.

Eminent domain: payment or deposit of award in court as affecting condemnor’s right to appeal. 40 A.L.R.3d 203.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

Am. Jur.

27 Am. Jur. 2d, Eminent Domain §§ 564 et seq.

Law Reviews.

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

§ 11-27-31. Property in more than one county.

In case the property sought to be condemned be in more than one (1) county, proceedings may be instituted in either of the counties in which a part of said property is situated.

HISTORY: Codes, 1942, § 2749-16; Laws, 1971, ch. 520, § 16, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

Am. Jur.

27 Am. Jur. 2d, Eminent Domain § 375.

§ 11-27-33. Certain takings of property excluded.

The provisions of this chapter shall not be applied to cases provided for by Section 233 of the Constitution, or to those cases covered under the provisions of Section 51-29-39, Mississippi Code of 1972.

HISTORY: Codes, 1942, § 2749-17; Laws, 1971, ch. 520, § 17, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

§ 11-27-35. Rights-of-way across railroads.

Telephone, telegraph or street railway companies, may acquire a right-of-way across railroads by condemnation by proceeding in accordance with the provisions of this chapter. If a right-of-way across a railroad has been condemned by a telegraph, telephone or street railway company, the railroad company shall be advised of the manner in which such telephone or telegraph company proposes to erect its poles and string its wires or place plant facilities underground, and in case of a street railway company, it shall give the railroad company notice of the manner in which it proposes to construct its tracks across the railroad, and if the railroad company shall object thereto, the public service commission shall have jurisdiction, upon complaint filed with it by the railroad company, to enter an order directing how the poles and wires or underground plant, if a telephone or telegraph company, shall be erected and strung or placed underground, and how tracks, if a street railway company, shall be constructed, and the railroad shall be crossed as ordered, and in no other manner.

HISTORY: Codes, 1942, § 2749-18; Laws, 1971, ch. 520, § 18, eff from and after January 1, 1972.

Cross References —

Railroad rights of way, see §77-9-169 et seq.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

A foreign telephone company may exercise the right of eminent domain in this state. Cumberland Tel. & Tel. Co. v. Yazoo & M. V. R. Co., 90 Miss. 686, 44 So. 166, 1907 Miss. LEXIS 115 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration-For condemnation-By state agency-For state transportation facility).

§ 11-27-37. Right of action for expenses.

In case the plaintiff shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or in case the suit shall be dismissed by the plaintiff except pursuant to settlement, or the judgment be that the plaintiff is not entitled to a judgment condemning property, the defendant may recover of the plaintiff in an action brought therefor all reasonable expenses, including attorneys’ fees, incurred by him in defending the suit.

HISTORY: Codes, 1942, § 2749-19; Laws, 1971, ch. 520, § 19; Laws, 1978, ch. 335, § 9; Laws, 1991, ch. 573, § 68, eff from and after July 1, 1991.

Cross References —

Application of amendment relating to prepayment of lower court costs and Supreme Court filing fee, see Editor’s Note to §11-27-29.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Trial court erred by awarding a landowner attorney’s fees when the court dismissed a quick-take condemnation action because the court erred in dismissing the case. Harrison County Util. Auth. v. Walker, 143 So.3d 608, 2014 Miss. App. LEXIS 19 (Miss. Ct. App.), cert. denied, 141 So.3d 947, 2014 Miss. LEXIS 386 (Miss. 2014).

Owner was not entitled to attorney fees under Miss. Code Ann. §11-27-37 because he forfeited his principal stake in the disputed property in the eminent domain proceeding and had no right to the interest that accrued on it over the years or to attorney fees. Morley v. Jackson Redevelopment Auth., 874 So. 2d 973, 2004 Miss. LEXIS 684 (Miss. 2004).

The trial court properly denied a claim for attorney and appraiser fees and punitive damages, notwithstanding the contention that the highway commission had not paid off a $50,000 judgment in favor of plaintiffs within 90 days after it became final, where the commission did not know the exact amount of the judgment and damages until the issuance of a Supreme Court mandate and where it paid the amount mandated within 90 days. Gresham v. Mississippi State Highway Com., 368 So. 2d 826, 1979 Miss. LEXIS 2236 (Miss. 1979).

The fact that landowners whose property is taken by eminent domain are not paid the expenses of defending the suit while such expenses are paid where, inter alia, the condemnation proceedings are abandoned by the condemnor or the judgment is that petitioner is not entitled to condemn the property does not render this section violative of equal protection where it makes provisions for entirely different situations. Jackson Redevelopment Authority v. King, Inc., 364 So. 2d 1104, 1978 Miss. LEXIS 2236 (Miss. 1978).

The provision for recovery of expenses incurred in defending condemnation proceeding dismissed by plaintiff, embraces proceedings instituted by a municipality. Lindley v. State, 234 Miss. 423, 106 So. 2d 684, 1958 Miss. LEXIS 512 (Miss. 1958).

Under this section [Code 1942, § 2775], municipality which dismissed an eminent domain proceeding became liable for counsel and expert witness fees incurred by the landowner in preparation of a defense to the proceeding. City of Jackson v. Lee, 234 Miss. 502, 106 So. 2d 892, 1958 Miss. LEXIS 524 (Miss. 1958).

Where an oil company brought an action to obtain a right of way for a pipe line over owners’ land, and owners instituted a proceeding resulting in a prohibition of the oil company from proceeding in a condemnation suit, the fact that pending the appeal the oil company had purchased rights of way and built its pipe line around the owners’ lands did not render the question moot in view of the vital public issue of whether the oil company had a right to the taking, as well as the question of awarding damages ot the landowners under this section [Code 1942, § 2775], and the fact that the oil company would be under permanent writ of prohibition in the absence of a final decision by the Supreme Court. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

Where a landowner successfully obtains a writ of prohibition forever restraining the highway department from taking a parcel of land described in the original eminent domain proceedings, the fact that the application was amended and resulted tin the taking of the same and additional land was immaterial, and the landowner could recover the additional cost of the proceedings under the provisions of this section [Code 1942, § 2775]. Mississippi State Highway Com. v. Morgan, 254 Miss. 630, 181 So. 2d 905, 1966 Miss. LEXIS 1561 (Miss. 1966).

Dismissal of suit by plaintiff may entitle defendant to damages. Meridian & M. R. Co. v. Betbeze, 111 Miss. 810, 72 So. 233, 1916 Miss. LEXIS 400 (Miss. 1916).

2. Separate action.

In a case seeking private road access, expenses were not awarded because the issue was not properly before the appellate court; a landowner had yet to bring a separate cause of action or a post-trial motion for expenses. High v. Kuhn, 191 So.3d 113, 2016 Miss. LEXIS 121 (Miss. 2016).

RESEARCH REFERENCES

ALR.

Liability of condemnor in eminent domain proceedings for fees of expert witnesses who testified for property owner. 18 A.L.R.2d 1225.

Attorney’s fees within statute imposing upon condemner liability for “expenses,” “costs,” and the like. 26 A.L.R.2d 1295.

Cost to property owner of moving personal property as element of compensation in eminent domain. 69 A.L.R.2d 1453.

Eminent domain: condemnor’s liability for costs of condemnee’s expert witnesses. 68 A.L.R.3d 546.

What constitutes abandonment of eminent domain proceeding so as to charge condemnor with liability for condemnee’s expenses or the like. 68 A.L.R.3d 610.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Law Reviews.

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

§ 11-27-39. Surveys; right to enter land; liability for damages.

Railroads, street or interurban railroads, mining, lighting, power, telephone, and telegraph corporations, and all other corporations, companies, persons and associations of persons, having rights and powers to condemn property may cause to be made such examinations and surveys for their proposed railroads, lines and stations, as may be necessary to the selection of the most advantageous routes and sites, and for such purpose may, by their officers, agents and servants, enter upon the lands and waters of any person, but subject to liability for all damages done thereto.

HISTORY: Codes, 1942, § 2749-20; Laws, 1971, ch. 520, § 20, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 2776] a public utility may, in good faith, enter on property without the owner’s knowledge or consent, for the purpose of making a preliminary examination and survey with a view to condemnation. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

A public utility’s right to enter on property for the purpose of examination and survey with a view to condemnation may be exercised by its independent contractor and his employee. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

The right to damages recognized by this section [Code 1942, § 2776] does not embrace the statutory penalty recoverable for the cutting of trees. Wood v. Mississippi Power Co., 245 Miss. 103, 146 So. 2d 546, 1962 Miss. LEXIS 536 (Miss. 1962).

Owner of land is not liable for the death of employee of State Highway Department, who entered under authority of this section and Code 1942, § 8023, irrespective of his negligence provided it did not amount to willful or wanton negligence since Code 1942 §§ 2776, 8023 merely divest the intruder from the penalties of a trespasser and confer no greater rights than belong to a licensee. Westmoreland v. Mississippi Power & Light Co., 172 F.2d 643, 1949 U.S. App. LEXIS 2755 (5th Cir. Miss. 1949).

Where a state highway employee, while operating a long drilling auger to test the subsoil of a proposed highway route across a cultivated field at a point in the right of way of an electric company, was electrocuted when the auger, on being lifted, came in contact with a high voltage wire thirteen and a half feet from the ground, neither the electric company, which, so far as shown, had knowledge of the presence of the highway employee, nor the representative of the state highway department, through whom he had been engaged, was liable for his death, this section [Code 1942, § 2776] divesting the intruder of the penalties and responsibilities of a trespasser by justifying his act, but not giving him any greater rights than those belonging to a licensee, and the duty of the owner of the land to guard against injury in such cases being governed by the rules applicable to trespassers. Roberts v. Mississippi Power & Light Co., 193 Miss. 627, 10 So. 2d 542, 1942 Miss. LEXIS 152 (Miss. 1942).

RESEARCH REFERENCES

ALR.

Condemnor’s acquisition of, or right to, minerals under land taken in eminent domain. 36 A.L.R.2d 1424.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs. 73 A.L.R.3d 1122.

Eminent domain: measure and elements of lessee’s compensation for condemnor’s taking or damaging of leasehold. 17 A.L.R.4th 337.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration – For condemnation – By state agency – For state transportation facility).

§ 11-27-41. Takings by hydroelectric power companies.

All companies or associations of persons incorporated or organized for the purpose of improving and developing the water power of rivers and streams for generating, distributing and selling electricity and electro-mechanical power for any purpose for which electricity or electro-mechanical power is now or may hereafter be used or applied, are empowered and authorized to exercise the right of eminent domain, as provided in the chapter on that subject, to condemn and take such lands as may be necessary for the establishment of their reservoirs, ponds, dams, and works, and the right-of-way through all lands between such reservoirs, ponds, dams and works and cities, towns and other points where light, heat or power may be consumed, to place and extend their electric wires and conductors, either underground or on poles overhead and to keep same in repair; provided that such wires and conductors shall be so constructed and placed as not to be dangerous to persons or property and to do as little injury as possible.

HISTORY: Codes, 1942, § 2749-21; Laws, 1971, ch. 520, § 21, eff from and after January 1, 1972.

Cross References —

Definitions concerning public utilities, see §21-27-11.

Grant of specific powers for rural electrification, see §77-5-23.

Right of way over state lands in rural electrification cases, see §77-5-47.

Eminent domain in electric power districts, see §77-5-157.

Board of supervisors’ use of eminent domain in county power development, see §77-5-309.

Municipality condemnation proceedings, see §77-5-441.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Liability for overflow of water confined or diverted for public water power purposes. 91 A.L.R.3d 1065.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain § 61.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration – For condemnation – By state agency – For state transportation facility).

§ 11-27-43. Erection and maintenance of utility poles and lines; duty of care owed to public.

  1. All companies or associations of persons incorporated or organized for the purposes set forth in Section 11-27-41 are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands, and to do such clearing as may be reasonably necessary for the proper protection, operation and maintenance of such facilities, provided in all cases such authorization shall meet the requirements of the National Electrical Safety Code. The same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies; or more than is necessary with the convenience of any landowner.
  2. The duty of care owed to the public by owners and operators of public utility facilities located adjacent to a highway, road, street or bridge in this state is satisfied when:
    1. With respect to state highways, the public utility facilities comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.
    2. With respect to roads, streets and bridges that are not part of the state highway system, the public utility facilities located in a public right-of-way comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.
    3. With respect to roads, streets and bridges that are not part of the state highway system, the public utility facilities located on private property comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.
    4. With respect to structures, appurtenances, equipment or appliances whose placement or installation is not subject to the provisions of the National Electrical Safety Code, the public utility facilities comply with the provisions of the standards in effect when the structure, appurtenance, equipment or appliance is placed, installed or located adjacent to any highway, road, street or bridge in this state, whether or not a part of the state highway system.
    1. The owner of a road, street, highway or bridge, which is not itself the owner or operator of a public utility, owes no duty to the public regarding or relating to the placement or location of public utility facilities within or appurtenant to the right-of-way of the road, street, highway or bridge.
    2. The owner of private property, which is not itself the owner or operator of a public utility, owes no duty to the public regarding or relating to the placement or location of public utility facilities on or appurtenant to the private property.
  3. For the purpose of this section, the term “public utility facilities” means pipes, mains, conduits, cables, wires, towers, poles and other structures, equipment or appliances, whether publicly or privately owned, installed or placed adjacent to any roadway by an owner or operator of a public utility facility.

HISTORY: Codes, 1942, § 2749-22; Laws, 1971, ch. 520, § 22; Laws, 2002, ch. 412, § 1, eff from and after July 1, 2002.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (4). The word “subsection” was changed to “section” so that “For the purpose of this subsection” reads as “For the purpose of this section.” The Joint Committee ratified this correction at its August 5, 2008, meeting.

Amendment Notes —

The 2002 amendment designated the former paragraph as (1) and added (2) through (4).

Cross References —

Municipalities’ granting rights for erection of posts and wires, see §21-27-3.

Telegraph companies erecting lines, see §77-9-711.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Power companies are not entitled or authorized to place a power line underground unless the customer agrees to pay for such. However, a power company may violate its duty of care under Miss. Code Ann. §11-27-43 if it fails to place high voltage lines underground at its own expense where it is feasible and practical. Ware v. Entergy Miss., Inc., 887 So. 2d 763, 2003 Miss. LEXIS 876 (Miss. 2003).

To satisfy the statute, power companies are required to make sure that: (1) National Electrical Safety Code (NESC) requirements are met, (2) the poles are constructed and placed so as not to be dangerous to persons or property, (3) there is no interference with the common use of such roads, streets, waters, or with the use of the wires of other wire-using companies, and (4) the construction does not unnecessarily inconvenience any landowner. Ware v. Entergy Miss., Inc., 887 So. 2d 763, 2003 Miss. LEXIS 876 (Miss. 2003).

The statute places on a utility company the continuing duty to eliminate foreseeable danger, and that duty is not obviated by the failure of the injured party or another to exercise such care unless it is determined by the factfinder that the latter’s conduct was the sole proximate cause of the injury. Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721, 1998 Miss. LEXIS 68 (Miss. 1998).

In determining whether the placement of a pole may be considered unreasonably dangerous such that liability may follow, the trial court should consider such factors as the structure’s proximity to the roadway, the configuration of the roadway, whether the utility had notice of previous accidents of sufficient similarity to give reasonable notice of the danger, and whether there were feasible alternative locations for the structure which were less dangerous; it will not be a bar to liability that contact with the structure occurred only after a driver, through misfortune or ordinary negligence, left the main traveled portion of the right of way. Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721, 1998 Miss. LEXIS 68 (Miss. 1998).

In an action brought by a house mover against an electric company for injuries he received from coming into contact with a live power line, an instruction for defendant that if jury believed the power line in question had been erected and maintained in conformity with Code 1942, § 2778 and National Electric Safety Code there would be no liability on defendant, was erroneous and misleading for the moving of a house along a highway is not “common use of the highway,” and instruction was also contrary to rule that whether utility is negligent despite compliance with National Electric Safety Code was a question for jury. Crouch v. Mississippi Power & Light Co., 193 So. 2d 144, 1966 Miss. LEXIS 1283, 1967 Miss. LEXIS 1546 (Miss. 1966).

The policy of the state evidenced by this provision, is to encourage the development of public utilities by affording them the right to place their lines along streets and highways. City Council of Greenville v. Thomas, 241 Miss. 633, 131 So. 2d 659, 1961 Miss. LEXIS 382 (Miss. 1961).

A power company may, with the consent of the municipal authorities, place a transmission line upon property purchased for a park, not interfering with its use as such. City Council of Greenville v. Thomas, 241 Miss. 633, 131 So. 2d 659, 1961 Miss. LEXIS 382 (Miss. 1961).

Where a right of way was conveyed to the state highway commission for highway purposes, and electric power company constructed power lines on the highway right of way, the landowner could recover damages on the ground that private property should not be taken or damaged for public use except on due compensation. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

It is continuing duty of electric company to maintain wires over streets in manner not dangerous to persons and property. Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 1932 Miss. LEXIS 167 (Miss. 1932).

Electric company maintaining wires over streets and highways must exercise highest degree of care to prevent danger. Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 1932 Miss. LEXIS 167 (Miss. 1932).

This section [Code 1942, § 2778] authorized power company to construct its poles and lines in and upon public highway. Mississippi Power Co. v. Sellers, 160 Miss. 512, 133 So. 594, 1931 Miss. LEXIS 160 (Miss. 1931).

Power company held not liable where trailer on truck in which plaintiff rode, as result of reckless driving, struck pole within right of way but eight feet from traveled road. Mississippi Power Co. v. Sellers, 160 Miss. 512, 133 So. 594, 1931 Miss. LEXIS 160 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration – For condemnation – By state agency – For state transportation facility).

§ 11-27-45. Power lines across railroads.

All companies, or associations of persons incorporated or organized for the purposes set forth in Section 11-27-41 may acquire a right-of-way across railroads by condemnation by the exercise of such right of eminent domain. If a right-of-way across a railroad has been condemned by a hydroelectric company, as herein defined, the railroad company shall be advised of the manner in which said hydroelectric company proposes to erect its poles and string its wires and conductors, and if the railroad company shall object thereto, the public service commission shall have jurisdiction upon complaint filed with it by the railroad company to enter an order directing how the poles, wires and conductors shall be constructed, and the railroad shall be crossed as ordered and in no other manner.

HISTORY: Codes, 1942, § 2749-23; Laws, 1971, ch. 520, § 23, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

RESEARCH REFERENCES

ALR.

Construction and application of rule requiring public use for which property is condemned to be “more necessary” or “higher use” than public use to which property is already appropriated–state takings. 49 A.L.R.5th 769.

§ 11-27-47. Pipelines.

All companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi, or natural gas districts, incorporated or organized for the purpose of building or constructing pipelines and appliances for the conveying and distribution of oil or gas, including carbon dioxide or other gaseous substances for use in connection with secondary or tertiary recovery projects located within the state of Mississippi for the enhanced recovery of liquid or gaseous hydrocarbons, or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, or for the purpose of constructing, maintaining and operating lines and appliances, for storing, transmitting and distributing water and for transmitting, treating and disposing of sewage, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipelines and appliances along or across highways, waters, railroads, canals and public lands, above or below ground, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands.

The board of supervisors of any county through which any such line may pass shall have the power to regulate, within its respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county. All such companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.

HISTORY: Codes, 1942, § 2749-24; Laws, 1971, ch. 520, § 24; Laws, 1984, ch 420, § 2, eff from and after passage (approved April 23, 1984).

Editor’s Notes —

Laws of 1984, ch. 420, § 1 provides as follows:

“SECTION 1. The Legislature hereby finds and declares the following:

(a) The State of Mississippi has substantial and valuable oil and gas reserves not producible by traditional recovery techniques, but which may be producible by enhanced recovery methods.

(b) It is for the public benefit and in the public interest that the maximum amount of the state’s oil and gas reserves be produced to the extent that it is economically and technologically feasible.

(c) Mississippi has substantial and valuable carbon dioxide reserves.

(d) The enhanced recovery of oil and gas by the injection of carbon dioxide into oil and gas reservoirs is a promising enhanced recovery method which may result in the increased production of oil and gas in the State of Mississippi.

(e) It is for the public benefit and in the public interest that Mississippi’s carbon dioxide be produced and used for the enhanced recovery of oil and gas.

(f) Pipelines are necessary to transport carbon dioxide from the place where it is produced to the place where it is used or consumed.

(g) Such pipelines will encourage production of carbon dioxide, a valuable natural resource, and encourage the enhanced production of oil and gas, all of which will be to the benefit of the State of Mississippi and its citizens and will assist in meeting the energy needs of the state and Nation.

(h) The public convenience and necessity requires that companies and other entities needing and using pipelines for the purpose of conveying, distributing or transporting carbon dioxide be empowered to exercise the power of eminent domain for the purpose of constructing and maintaining such pipelines.”

Cross References —

Pipes, conduits, and pipe lines, see §21-27-5.

Laying of pipelines, see §29-7-7.

Right of eminent domain for the purpose of constructing pipelines, see §53-3-159.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Dismissal of an eminent domain proceeding under Miss. Code Ann. §11-27-15 was properly denied because owners were unable to show that an electric association’s taking was not for public use, and any incidental benefit to surrounding landowners did not defeat the taking of the owners’ property; the association wanted to construct a power line to supply its customers with adequate voltage. Knight v. S. Miss. Elec. Power Ass'n, 943 So. 2d 81, 2006 Miss. App. LEXIS 667 (Miss. Ct. App. 2006).

Although a pipeline company holding an easement across public lands had a valid property interest in such lands, its interest was subject to the statutory restriction that the lines not interfere with the state’s dominion over the land for the public welfare; thus, the expense of lowering the pipeline when the state constructed a drainage canal over the easement was properly placed on the pipeline company. State v. Michigan Wisconsin Pipeline Co., 360 So. 2d 684, 1978 Miss. LEXIS 2299 (Miss. 1978).

Involving the right, as against a utility having a municipal franchise, of an electric power association to serve a portion of its certificated area after annexation to a city. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

The policy of the state evidenced by this provision, is to encourage the development of public utilities by affording them the right to place their lines along streets and highways. City Council of Greenville v. Thomas, 241 Miss. 633, 131 So. 2d 659, 1961 Miss. LEXIS 382 (Miss. 1961).

This section [Code 1942, § 2780] does not require resort to condemnation proceedings where property owners or public authorities consent to use without compensation. City Council of Greenville v. Thomas, 241 Miss. 633, 131 So. 2d 659, 1961 Miss. LEXIS 382 (Miss. 1961).

The plain purpose of this section [Code 1942, § 2780] is to encourage pipe line enterprises, and the legislative intent must be sought in the light of that purpose. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

Where an oil company brought an action to obtain a right of way for a pipe line over owners’ land and owners instituted a proceeding resulting in a prohibition of the oil company from proceeding in a condemnation suit, the fact that pending the appeal the oil company had purchased rights of way and built its pipe line around the owners’ lands did not render the question moot in view of the vital public issue of whether the oil company had a right to the taking, as well as the question of awarding damages to the land owners under Code 1942, § 2775, and the fact that the oil company would be under permanent writ of prohibition in the absence of a final decision by the Supreme Court. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

Telephone and telegraph lines which pipe line company sought to construct for use in connection with pipe line held mere “appliances” within its charter and statute respecting eminent domain. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687, 1932 Miss. LEXIS 27 (Miss. 1932).

This section [Code 1942, § 2780], did not apply where power company placed poles along highway and truck struck pole. Mississippi Power Co. v. Sellers, 160 Miss. 512, 133 So. 594, 1931 Miss. LEXIS 160 (Miss. 1931).

2. Companies, associations, etc., as having power of eminent domain.

The word “distribution” as used in this section [Code 1942, § 2780] includes substantial and necessary steps in the total process of distribution and the construction of a pipe line to carry condensate from two producing fields to a refinery is a substantial and necessary step in the process of distributing the commodity transported by a common carrier. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

Since there is no state regulatory authority over pipe lines for the conveyance of oil and condensate, the common law definition of common carriers would apply. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

A company organized to transport condensate of oil by pipe lines is organized for public purpose for which private property may be condemned, provided that the facilities of the company are open to the public generally on equal terms; and the use is not rendered a private one by the fact that only a few persons will be served at the time the property is sought to be taken. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

The public necessity for taking private property is a legislative question a determination of which may be delegated in respect to abutting lands of individuals, damages by reason of any injury caused by the construction of the line or the use of the line, and contemplates damages resulting from the use of the line in the highway right of way and not the use of the highway right of way for the location of the line. Mississippi Valley Gas Co. v. Boydstun, 230 Miss. 11, 92 So. 2d 334, 1957 Miss. LEXIS 340 (Miss. 1957).

This section [Code 1942, § 2780] grants pipe line companies the right to condemn private property. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687, 1932 Miss. LEXIS 27 (Miss. 1932).

Corporation having power under charter of laying pipe lines to distribute gas for public purposes was “public utility corporation,” and had right of eminent domain, whether it had valid franchise with city or not. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687, 1932 Miss. LEXIS 27 (Miss. 1932).

Legislature had constitutional authority to grant right of eminent domain to pipe lines for purpose of distributing gas to public. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687, 1932 Miss. LEXIS 27 (Miss. 1932).

3. Exercise of power, generally.

The effect of Code 1942, § 7716-05, is to make the obtaining of a certificate of public convenience and necessity by a utility a condition of its exercise of the power of eminent domain. Mississippi Power & Light Co. v. Blake, 236 Miss. 207, 109 So. 2d 657, 1959 Miss. LEXIS 310 (Miss. 1959).

That a cement plant will considerably benefit from extension of an electric power line does not make the taking of property for the line one for a private purpose, where there is evidence of public need for the extension. Mississippi Power & Light Co. v. Blake, 236 Miss. 207, 109 So. 2d 657, 1959 Miss. LEXIS 310 (Miss. 1959).

An oil company proposing to operate a common carrier pipe line for the conveyance of oil and condensate from two producing fields to a refinery which had contracted to purchase the company’s entire production, whose facilities would be open to the public generally, particularly to all owners of production within these fields, and had filed a tariff with the Interstate Commerce Commission, was authorized to condemn a right of way over land, notwithstanding that some 60 to 65 per cent of the oil to be conveyed was from the company’s own wells. Ohio Oil Co. v. Fowler, 232 Miss. 694, 100 So. 2d 128, 1956 Miss. LEXIS 647 (Miss. 1956).

That another company had laid pipe line over same territory did not prevent respondent from condemning land for pipe line, public policy of State, as evidenced by anti-trust statutes prohibiting municipalities from granting exclusive franchises, being to encourage competition. Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687, 1932 Miss. LEXIS 27 (Miss. 1932).

4. Public lands.

Where a statute granted the right to build and construct a pipeline across public lands, the phrase public lands includes sixteenth section school lands. Willmut Gas & Oil Co. v. Covington County, 221 Miss. 613, 71 So. 2d 184, 1954 Miss. LEXIS 569 (Miss. 1954).

The purpose which the legislature had in granting to public utilities the right to construct pipelines across sixteenth section lands is consistent with other analogous legislative grants. Willmut Gas & Oil Co. v. Covington County, 221 Miss. 613, 71 So. 2d 184, 1954 Miss. LEXIS 569 (Miss. 1954).

5. Damages or compensation.

Even if a pipeline company and a property owner entered into an agreement whereby the company agreed that no other lines would be constructed across the owner’s property, it would be void as against public policy and would not support the grant of a writ of prohibition to prevent the company from exercising its right of eminent domain to acquire a second easement across the same property. Southern Pine Wood Preserving Co. v. Brown, 202 So. 2d 916, 1967 Miss. LEXIS 1343 (Miss. 1967).

Whether a pipe line company is liable for the overturning of a negligently driven car striking a concrete post, installed as a marker, not readily visible, located on the shoulder of a highway near the edge of a ditch, about 3 1/2 feet from the blacktop, held for the jury. United Gas Pipe Line Co. v. Jones, 236 Miss. 471, 111 So. 2d 240, 1959 Miss. LEXIS 341 (Miss. 1959).

This section [Code 1942, § 2780] does not contemplate the right to recover rent for the use of the highway right of way in which a distribution line is located insofar as it applies to privately owned abutting lands, since the language “injury caused by such construction or use thereof” means, with respect to abutting lands of individuals, damages by reason of any injury caused by the construction of the line or the use of the line, and contemplates damages resulting from the use of the line in the highway right of way and not the use of the highway right of way for the location of the line. Mississippi Valley Gas Co. v. Boydstun, 230 Miss. 11, 92 So. 2d 334, 1957 Miss. LEXIS 340 (Miss. 1957).

Where an abutting property owner’s predecessor in title had conveyed a highway right of way to the State Highway Commission, and subsequently a gas company, pursuant to permission obtained from the State Highway Commission, laid a gas distribution line wholly within the right of way, the abutting property owner was not entitled to rent from the gas company, where his property was not damaged or depreciated in value by the use of the right of way for the distribution line; nor was there violation of the abutting property owner’s rights under § 17 of the Mississippi Constitution. Mississippi Valley Gas Co. v. Boydstun, 230 Miss. 11, 92 So. 2d 334, 1957 Miss. LEXIS 340 (Miss. 1957).

Where a right of way was conveyed to the state highway commission for highway purposes, and electric power company constructed power lines on the highway right of way, the landowner could recover damages on the ground that private property should not be taken or damaged for public use except on due compensation. Berry v. Southern Pine Electric Power Asso., 222 Miss. 260, 76 So. 2d 212, 1954 Miss. LEXIS 644 (Miss. 1954).

A phrase “damages for any use” as used in this section [Code 1942, § 2780] includes compensation for reasonable rental or use of right of way. Willmut Gas & Oil Co. v. Covington County, 221 Miss. 613, 71 So. 2d 184, 1954 Miss. LEXIS 569 (Miss. 1954).

An uncompensated grant by the state of an easement or right of way across a sixteenth section would be in violation of the constitution. Willmut Gas & Oil Co. v. Covington County, 221 Miss. 613, 71 So. 2d 184, 1954 Miss. LEXIS 569 (Miss. 1954).

OPINIONS OF THE ATTORNEY GENERAL

A county has the authority to allow municipal use of the county’s road right-of-way for construction and maintenance of municipal water mains without the necessity of an interlocal agreement. Bobo, June 19, 1998, A.G. Op. #98-0254.

RESEARCH REFERENCES

ALR.

Eminent domain: Elements and measure of compensation for oil or gas pipeline through private property. 38 A.L.R.2d 788.

Eminent domain: cost of substitute facilities as measure of compensation to state or municipality for condemnation of public property. 40 A.L.R.3d 143.

Am. Jur.

26 Am. Jur. 2d, Eminent Domain § 84.

61 Am. Jur. 2d, Pipelines §§ 19 et seq.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Form 31.1 (Complaint, petition, or declaration – For condemnation – By state agency – For state transportation facility).

Law Reviews.

1984 Mississippi Supreme Court Review: Property. 55 Miss. L. J. 135, March, 1985.

§ 11-27-48. Information from Public Service Commission or Federal Energy Regulatory Commission.

No entity empowered under the laws of the State of Mississippi to exercise the power of eminent domain shall be required, as a condition precedent to exercising such power, to obtain from the applicable regulatory agency, whether the Mississippi Public Service Commission or the Federal Energy Regulatory Commission, or any successor agency, any of the following:

A determination that the entity qualifies as one to which the Legislature has granted the power of eminent domain;

A determination that the entity has complied with state law in invoking the statutory power of eminent domain; or

A certificate of public convenience and necessity for the particular taking in question.

However, this section shall not affect or alter in any way the terms and provisions contained in Sections 77-3-13, 77-3-17 and 77-3-21.

HISTORY: Laws, 1997, ch. 453, § 1; Laws, 2007, ch. 483, § 1, eff from and after July 1, 2007.

Amendment Notes —

The 2007 amendment, in the introductory language, inserted “the applicable regulatory agency, whether” preceding “the Mississippi Public Service Commission” and “or the Federal Energy Regulatory Commission, or any successor agency” thereafter.

Cross References —

Mississippi Public Service Commission, see §77-1-1 et seq.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

§ 11-27-49. Public schools.

The boards of trustees of an agricultural high school, or agricultural high school and junior college, or any municipal separate school district, and the county board of education, in the case of other school districts, are authorized and empowered to exercise the right of eminent domain, for the purpose of acquiring property to be used for school and playground purposes. However, the rights of eminent domain created hereunder shall not be used for the condemnation of the property of any school or college whatsoever, either private, fraternal, sectarian or denominational.

HISTORY: Codes, 1942, § 2749-25; Laws, 1971, ch. 520, § 25, eff from and after January 1, 1972.

Cross References —

Right of eminent domain relating to underground storage of natural gas, see §53-3-159.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

The last sentence of this section [Code 1942, § 2749-25] is applicable only to prevent any enumerated school authority or school entity from taking land belonging to another school, and does not prohibit the state highway commission from taking land belonging to a school board through eminent domain proceedings. La Barreare v. Lambert, 284 So. 2d 50, 1973 Miss. LEXIS 1246 (Miss. 1973).

RESEARCH REFERENCES

ALR.

Amount of property which may be condemned for school. 71 A.L.R.2d 1071.

§ 11-27-51. Proceedings filed before 1972 not affected by chapter.

Nothing in this chapter shall be considered or construed to affect in any way any eminent domain proceeding filed before January 1, 1972 and such proceeding may be prosecuted to final conclusion according to the law in effect on the date such proceeding was filed, but the provisions of Section 11-27-29 relating to direct appeals to the supreme court shall apply to cases pending in any county court on January 1, 1972 wherein no appeal has been taken. Nothing in this chapter shall be construed or shall operate to negate, abridge or alter rights vested pursuant to any prior statutes repealed and reenacted hereby, or to affect judicial construction thereof.

HISTORY: Laws, 1971, ch. 520, § 27, eff from and after January 1, 1972.

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

Right to Immediate Possession

§ 11-27-81. Who may exercise right of immediate possession.

The right of immediate possession pursuant to Sections 11-27-81 through 11-27-89, Mississippi Code of 1972, may be exercised only:

By the State Highway Commission for the acquisition of highway rights-of-way only;

By any county or municipality for the purpose of acquiring rights-of-way to connect existing roads and streets to highways constructed or to be constructed by the State Highway Commission;

By any county or municipality for the purpose of acquiring rights-of-way for widening existing roads and streets of such county or municipality; provided, however, that said rights-of-way shall not displace a property owner from his dwelling or place of business;

By the boards of supervisors of any county of this state for the acquisition of highway or road rights-of-way in connection with a state-aid project designated and approved in accordance with Sections 65-9-1 through 65-9-31, Mississippi Code of 1972;

By any county, municipality or county utility authority created under the Mississippi Gulf Region Utility Act, Section 49-17-701 et seq., for the purpose of acquiring rights-of-way for water, sewer, drainage and other public utility purposes; provided, however, that such acquisition shall not displace a property owner from his dwelling or place of business. A county utility authority should prioritize utilizing easements within ten (10) feet of an existing right-of-way when economically feasible. A county utility authority may not exercise the right to immediate possession under this paragraph after July 1, 2013. Provisions of this paragraph (e) shall not apply to House District 109;

By any county authorized to exercise the power of eminent domain under Section 19-7-41 for the purpose of acquiring land for construction of a federal correctional facility or other federal penal institution;

By the Mississippi Major Economic Impact Authority for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(iv)1 or any facility related to the project as provided in Section 57-75-11(e)(ii);

By the boards of supervisors of any county of this state for the purpose of constructing dams or low-water control structures on lakes or bodies of water under the provisions of Section 19-5-92;

By the board of supervisors of any county of this state for the purpose of acquiring land, property and/or rights-of-way for any project the board of supervisors, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(iv). The board of supervisors of a county may not exercise the right to immediate possession under this paragraph (i) after July 1, 2003;

By a regional economic development alliance created under Section 57-64-1 et seq., for the purpose of acquiring land, property and/or rights-of-way within the project area and necessary for any project such an alliance, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(xxi). An alliance may not exercise the right to immediate possession under this paragraph (j) after July 1, 2012; or

By the board of supervisors of any county of this state for the purpose of acquiring or clearing title to real property, property and/or rights-of-way within the project site and necessary for any project such board of supervisors, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(xxii). A county may not exercise the right to immediate possession under this paragraph (k) after July 1, 2012.

HISTORY: Codes, 1942, § 2749-04.5; Laws, 1972, ch. 489, § 1; Laws, 1975, ch. 447; Laws, 1987 Ex Sess, ch. 24, § 19; Laws, 1989, ch. 535, § 8; Laws, 1990, ch. 470, § 1; Laws, 1994, ch. 310, § 2; Laws, 2000, 3rd Ex Sess, ch. 1, § 11; Laws, 2001, ch. 476, § 2; Laws, 2007, ch. 303, § 11; Laws, 2007, 1st Ex Sess, ch. 1, § 6; Laws, 2008, 1st Ex Sess, ch. 52, eff August 21, 2008; Laws, 2017, ch. 404, § 10, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected errors in internal statutory references by substituting “this paragraph (e)” for “this paragraph (f)” in paragraph (e), “this paragraph (i)” for “this paragraph (j)” in paragraph (i), “this paragraph (j)” for “this paragraph (k)” in paragraph (j), and “this paragraph (k)” for “this paragraph ( l )” in paragraph (k). The Joint Committee ratified the correction at its August 12, 2019, meeting.

Editor’s Notes —

Laws of 2001, ch. 476, § 6, provides:

“SECTION 6. Nothing in this act shall be construed to require the prior approval of a levee board for the repair or construction of flood control structures in areas that are not located in a levee district area.”

Amendment Notes —

The first 2007 amendment (ch. 303) added (k); and made minor stylistic changes.

The second 2007 amendment (ch. 1, 1st Ex Sess), added ( l ) and made minor stylistic changes.

The 2008 amendment, in (f), inserted “or county utility authority created under the Mississippi Gulf Region Utility Act, Section 49-17-701 et seq.,” and added the last three sentences; substituted “paragraph (j)” for “item (j)” near the end of (j), “paragraph (k)” for “item (k)” near the end of (k), and “paragraph ( l )” for “item ( l )” near the end of ( l ); and made minor stylistic changes.

The 2017 amendment deleted former (e), which read: “By the Mississippi Wayport Authority for the purposes of acquiring land and easements for the Southeastern United States Wayport Project as authorized by Sections 61-4-1 through 61-4-13, Mississippi Code of 1972,” and redesignated the remaining paragraphs accordingly.

Cross References —

Right of boards of supervisors of certain counties to immediate possession for purpose of constructing federal penitentiary, see §19-7-41.

Mississippi Superconducting Super Collider Authority, see §57-67-1 et seq.

Mississippi Superconducting Super Collider Authority’s right to immediate possession of land, see §57-67-11.

General powers and duties of the Mississippi Major Economic Impact Authority, see §57-75-11.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

OPINIONS OF THE ATTORNEY GENERAL

A City may, upon a factual determination that a sludge disposal facility is part of a sewer for purposes of Section 21-37-47(3), use the power of eminent domain to acquire the property to construct a sludge disposal facility. The municipality may utilize the provisions of Section 11-27-81(f) for immediate possession of rights-of-way to the facility as long as acquisition does not displace any property owner from his or her dwelling or place of business. Brown, September 29, 1995, A.G. Op. #95-0212.

Section 11-27-81 does not permit the Board of Supervisors to take immediate possession when a County desires to take possession of certain land in order to enable the state to construct a state highway. Welch, August 9, 1996, A.G. Op. #96-0402.

The “quick-take” provisions of the statute extend only within the corporate limits of the municipality; thus, there is no authority for a municipality to exercise the right to immediate possession to acquire rights-of-way to a municipal natural gas pipeline located outside the corporate limits of the municipality. Aston, April 10, 1998, A.G. Op. #98-0147.

The term “drainage and other public utility purposes” in subsection (f) encompasses work along a creek or other natural water course to lessen flooding in the municipality, and a municipality has the power pursuant to subsection (f) to take immediate possession under its right of eminent domain of the temporary easements necessary to do the work. Phillips, September 11, 1998, A.G. Op. #98-0567.

A county board of supervisors did not have authority to exercise the right of immediate possession in the acquisition of properties to be used by county school district for athletic facilities or new construction. Smith, June 30, 2000, A.G. Op. #2000-0342.

A regional water supply district is not entitled to adopt and exercise the “quick take” powers set forth in Sections 11-27-81 through 11-27-91, as the exercise of this power is limited to specific entities for specific purposes and a water district is not one of the specific entities listed as having the power of “quick take.” Applewhite, Oct. 27, 2000, A.G. Op. #2000-0635.

Although the individual municipalities and counties that are members of a regional water management district are entitled to exercise “quick take” procedures, it would circumvent the intent of the statute if the entities having the statutory authority to use “quick take” procedures were to exercise that power for the benefit of entities without such specific authority. Applewhite, Oct. 27, 2000, A.G. Op. #2000-0635.

Rights-of-way for bridges which are part of a state-aid road project as defined in Section 65-9-1 are subject to the right of immediate possession set out in Section 11-27-81(d). Williamson, Sept. 21, 2001, A.G. Op. #01-0599.

There is no authority for the board of commissioners of the Northeast Mississippi Natural Gas District to exercise the right of immediate possession of property pursuant to Section 11-27-81. McElroy, Apr. 11, 2003, A.G. Op. 03-0169

A city may use the quick take provisions of this section to acquire easements for the municipal sewer system in addition to the eminent domain authority of §§21-37-47 et seq. Kerby, Sept. 12, 2003, A.G. Op. #03-0467.

A county may use the quick take provisions of this section to acquire a right-of-way for upgrades to the county’s water and sewer service to the county-owned industrial park. A finding by the board of supervisors that no property owner will be displaced from his or her dwelling or place of business should be reflected in an order entered upon the board’s minutes. O’Donnell, Aug. 13, 2004, A.G. Op. #04-0360.

RESEARCH REFERENCES

ALR.

Locating easement of way created by necessity. 36 A.L.R.4th 769.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Forms 71 et seq. (Allowance of immediate possession; continuation of possession).

CJS.

29A C.J.S., Eminent Domain § 343.

§ 11-27-83. Institution of proceedings; appraisal of property.

If a plaintiff eligible to claim the right of immediate possession under the provisions of Sections 11-27-81 through 11-27-89 shall desire immediate possession of the property sought to be condemned, other than property devoted to a public use, the plaintiff shall so state in the complaint to condemn property filed with the circuit clerk pursuant to Sections 11-27-1 through 11-27-49, Mississippi Code of 1972, and shall therein make and substantiate the following declaration concerning the governmental project for which the property is being condemned:

That the plaintiff shall suffer irreparable harm and delay by exercising the right to condemn said property through eminent domain proceedings pursuant to Sections 11-27-1 through 11-27-49, as opposed to claiming the right of immediate possession of said property pursuant to Sections 11-27-81 through 11-27-89.

The court, or the judge thereof in vacation, as soon as practicable after being satisfied that service of process has been obtained, shall appoint a disinterested, knowledgeable person qualified to make an appraisal of the property described in the complaint to act as appraiser. The appraiser, after viewing the property, shall return to the clerk of court within ten (10) days after his appointment, his report in triplicate, under oath, which report shall state: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the appraiser; and (3) his opinion as to the highest and best use of the property, and a narrative of the facts pertaining to his appraisal.

HISTORY: Codes, 1942, § 2749-04.5; Laws, 1972, ch. 489, § 1; Laws, 1986, ch. 465, § 1; Laws, 1991, ch. 573, § 69, eff from and after July 1, 1991.

Cross References —

Mississippi Superconducting Super Collider Authority’s right to immediate possession of land, see §57-67-11.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Irreparable harm or delay.

1. In general.

Commission failed to meet its burden of proof in establishing the fair market value of land condemned under the “quick take” provisions because it: (1) used sales that were not comparable to the landowner’s property, (2) used only one approach to value, and (3) failed to consider the income approach in light of the subject property’s income-producing capacity. Burks v. Miss. Transp. Comm'n, 990 So. 2d 200, 2008 Miss. App. LEXIS 8 (Miss. Ct. App.), cert. denied, 994 So. 2d 186, 2008 Miss. LEXIS 475 (Miss. 2008).

The highway commission’s taking of a portion of landowners’ property undeniably affected the value of the remaining property where a portion of the owners’ parking area was taken and they lost frontage which moved their structure closer to the roadway so that future reconstruction to the building could be affected, and therefore the highway commission should not have been allowed to have its witness base his appraisal of fair market value of the property on the value of empty lots. To establish a prima facie case of fair market value, the highway commission was required to base its valuation on comparable sales of property which contained a building and which took into account the partial loss of the parking lot. Howell v. State Highway Com., 573 So. 2d 754, 1990 Miss. LEXIS 783 (Miss. 1990).

In a “quick take” eminent domain proceeding, the trial court acted properly in not allowing the landowner to call the court-appointed expert appraiser as a witness. State Highway Com. v. Culpepper, 536 So. 2d 18, 1988 Miss. LEXIS 588 (Miss. 1988).

In an eminent domain proceeding under §11-27-83 in which the state acquired .18 of an acre of land leased by a church, the trial court erred in ordering a $10,000 additur to the jury verdict of $7,500 where the church would not lose any building or permanent structure on the taken property, the state had no plans to pave the land taken or place any structure upon it, the highest and best use of the property was for church purposes and not for commercial purposes, and the land taken was property in which the church only held a remaining 20-year leasehold interest. Mississippi State Highway Com. v. Antioch Baptist Church, Inc., 392 So. 2d 512, 1981 Miss. LEXIS 1900 (Miss. 1981).

2. Irreparable harm or delay.

A loss of federal funding occasioned by delay can justify a finding of irreparable harm or delay. Winters v. City of Columbus, 735 So. 2d 1104, 1999 Miss. App. LEXIS 142 (Miss. Ct. App. 1999).

RESEARCH REFERENCES

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Forms 71 et seq. (Allowance of immediate possession; continuation of possession).

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Forms 91 et seq. (Appointment of commissioners).

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Forms 111 et seq. (Report of commissioners).

7 Am. Jur. Legal Forms 2d, Eminent Domain § 97:36 (Appraiser’s affidavit of value of interest in land).

§ 11-27-85. Order granting right to immediate title and immediate entry; deposit.

  1. Upon the filing of the report of the appraiser, the clerk shall within three (3) days mail notice to the parties and the court that the report has been filed. The court shall review the report of the appraiser and shall, after not less than five (5) days’ notice thereof to the defendants, enter an order granting to the plaintiff title to the property, less and except all oil, gas and other minerals which may be produced through a well bore, and the right to immediate entry unless, for other cause shown or for uncertainty concerning the immediate public need for such property pursuant to Section 11-27-83, the judge shall determine that such passing of title, and right of entry should be denied. However, no person lawfully occupying real property shall be required to move from a dwelling or to move his business or farm operation without at least ninety (90) days’ written notice prior to the date by which such move is required.
  2. Upon entry of said order, the plaintiff may deposit not less than eighty-five percent (85%) of the amount of the compensation and damages as determined by the appraiser with the clerk of the court, and upon so doing, the plaintiff shall be granted title to the property, less and except all oil, gas and other minerals which may be produced through a well bore, and shall have the right to immediate entry to said property. The defendant, or defendants, shall be entitled to receive the amount so paid to the clerk of the court, which shall be disbursed as their interest may appear, pursuant to order of the court.
  3. Notwithstanding any provisions of subsections (1) and (2) of this section to the contrary, title and immediate possession to real property, including oil, gas and other mineral interests, may be granted under this section to (a) any county authorized to exercise the power of eminent domain under Section 19-7-41 for the purpose of acquiring land for construction of a federal correctional facility or other federal penal institution, (b) the Mississippi Major Economic Impact Authority for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(iv)1 and any facility related to such project, (c) a regional economic development alliance for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(xxi) and any facility related to the project; and (d) any county for the purpose of acquiring or clearing title to real property, property and rights-of-way for a project as defined in Section 57-75-5(f)(xxii).

HISTORY: Codes, 1942, § 2749-04.5; Laws, 1972, ch. 489, § 1; Laws, 1986, ch. 465, § 2; Laws, 1988, ch. 447, § 1; Laws, 1991, ch. 573, § 70; Laws, 1994, ch. 310, § 3; Laws, 2000, 3rd Ex Sess, ch. 1, § 12; Laws, 2007, ch. 303, § 29; Laws, 2007, 1st Ex Sess, ch. 1, § 7, eff from and after passage (approved May 11, 2007).

Amendment Notes —

The first 2007 amendment (ch. 303) added (c) in (3); and made minor stylistic changes.

The second 2007 amendment (ch. 1, 1st Ex Sess) added (d) in (3).

Cross References —

Mississippi Superconducting Super Collider Authority’s right to immediate possession of land, see §57-67-11.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

Mississippi Major Economic Impact Authority generally, see §57-75-1 et seq.

JUDICIAL DECISIONS

1. In general.

There was no problem with a jury instruction that told the jurors that a deposit of funds for the benefit of the landowner had been made in an eminent domain proceeding; the instruction was no more than a summary of Miss. Code. Ann. §11-27-85(2). North Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm'n, 912 So. 2d 1118, 2005 Miss. App. LEXIS 750 (Miss. Ct. App. 2005).

The only purpose of the report of a court-appointed expert appraiser is to ascertain the value of the property to determine the amount of money that should be put on deposit with the clerk of the court pursuant to §11-27-85. Hudspeth v. State Highway Com., 534 So. 2d 210, 1988 Miss. LEXIS 546 (Miss. 1988).

Under the quick-take law (Code 1972, §§11-27-81 through11-27-91), the defendants have the absolute right to withdraw the funds deposited by the petitioner subject only to the order of the court as to their distribution, and the petitioner has no further control of the funds and no right to withdraw them after they are deposited; under these circumstances, the petitioner should not and is not required to pay interest on the amount deposited after the date of its deposit. Mississippi State Highway Com. v. Owen, 310 So. 2d 920, 1975 Miss. LEXIS 1923 (Miss. 1975).

RESEARCH REFERENCES

ALR.

Payment or deposit in court as affecting condemnor’s right to appeal. 40 A.L.R.3d 203.

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Eminent Domain, Forms 80-85 (Order granting immediate possession).

§ 11-27-87. Effect of insufficiency or excess of deposit.

If the plaintiff takes title to and possession of the land condemned pursuant to the order of the court and the amount of compensation as determined upon final disposition of the case is in excess of the amount of the deposit, the plaintiff shall pay interest to the owner at the rate of eight percent (8%) per annum upon the amount of such excess from the date of the filing of the complaint until payment is actually made. If the plaintiff takes title to and possession of the land condemned pursuant to the order of the court and the amount of the compensation as determined upon final disposition of the case is less than the amount of the deposit, the plaintiff shall be entitled to a personal judgment against the owner for the amount of the difference.

HISTORY: Codes, 1972, § 2749-04.5; Laws, 1972, ch. 489, § 1; Laws, 1988, ch. 447, § 2; Laws, 1991, ch. 573, § 71, eff from and after July 1, 1991.

Cross References —

Mississippi Superconducting Super Collider Authority’s right to immediate possession of land, see §57-67-11.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Owner was properly awarded eight percent interest from the date the petition to condemn was filed, rather than from the date a law firm improperly filed a lis pendens. Lehman v. Miss. Transp. Comm'n, 127 So.3d 277, 2013 Miss. App. LEXIS 363 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 658 (Miss. 2013).

Under the quick-take law, the landowner is entitled to interest on the excess of the amount paid to the court at the rate of 8 per cent per annum from the date the petition was filed until the judgment is finally paid, and there was no merit in petitioner’s contention that the landowner was only entitled to 6 per cent interest on this amount for the reason that petitioner did not physically take possession of the property; the petitioner had the right of entry and possession, and what it did relative to taking actual physical possession of the property was entirely within its discretion. Mississippi State Highway Com. v. Owen, 310 So. 2d 920, 1975 Miss. LEXIS 1923 (Miss. 1975).

§ 11-27-89. Compensation of appraiser; right to jury trial.

The appraiser shall receive as compensation for his services such sum, plus expenses, as the court allows, which shall be taxed as cost in the proceedings. The sum allowed shall be based upon the degree of difficulty and the time required to perform the appraisal, but may not exceed One Thousand Dollars ($1,000.00) unless, in the opinion of the court, special circumstances warrant a greater sum. An order granting a sum greater than One Thousand Dollars ($1,000.00) must describe in detail the special circumstances that warrant payment of a greater sum.

The making of a deposit by the plaintiff or the withdrawal of said deposit by the defendant or defendants shall not prejudice the right of any party to a trial by jury in the special court of eminent domain to determine the fair market value of the property to be condemned and the damages, if any, to the remainder if less than the whole is taken, as provided in Sections 11-27-1 through 11-27-49, Mississippi Code of 1972.

HISTORY: Codes, 1942, § 2749-04.5; Laws, 1972, ch. 489, § 1; Laws, 1991, ch. 573, § 72; Laws, 1993, ch. 361, § 1; Laws, 2000, ch. 451, § 1, eff from and after passage (approved Apr. 18, 2000.).

Cross References —

Mississippi Superconducting Super Collider Authority’s right to immediate possession of land, see §57-67-11.

Eminent domain proceedings, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

In a “quick take” eminent domain proceeding, the trial court acted properly in not allowing the landowner to call the court-appointed expert appraiser as a witness. State Highway Com. v. Culpepper, 536 So. 2d 18, 1988 Miss. LEXIS 588 (Miss. 1988).

The limiting amount of §11-27-89 is for “services,” not for “an appraisal.” State Highway Com. v. Rankin County Bd. of Education, 531 So. 2d 612, 1988 Miss. LEXIS 429 (Miss. 1988).

§ 11-27-91. Special funds and accounts of highway commission.

The highway commission of the State of Mississippi is hereby authorized to set up and maintain such special funds and accounts as it may consider necessary and proper to make the deposits and pay the costs as authorized by Sections 11-27-81 through 11-27-89, and to pay such judgments as may be entered and such other costs as may be incidental to the acquisition of property for right-of-way purposes. Disbursement from such special funds shall be by check properly drawn against said fund signed by such personnel as may be duly authorized by the highway commission of the State of Mississippi.

HISTORY: Codes, 1942, § 2749-04.6; Laws, 1972, ch. 489, § 2, eff from and after passage (approved May 10, 1972).

Cross References —

Eminent domain proceedings, see Miss. R. Civ. P. 81.

Chapter 29. Sequestration

§ 11-29-1. Issuance of writ of sequestration.

When a bill is filed in the chancery court in reference to personal property, and affidavit and bond as required therefor is made and filed, the clerk of the court shall issue a writ of sequestration.

HISTORY: Codes, 1880, § 1854; 1892, § 511; 1906, § 562; Hemingway’s 1917, § 322; 1930, § 408; 1942, § 1328.

Cross References —

Jurisdiction to grant remedial writs, see §9-1-19.

Procedure for attachment of perishable commodities, see §§11-1-43 through11-1-49.

Circuit court order to protect property in controversy, see §11-7-169.

Writ to seize property in partition proceeding, see §11-21-77.

Attachment in chancery against nonresident, absent or absconding debtors, see §11-31-1 et seq.

Attachment at law against debtors, see §11-33-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The state sequestration statutes, under which property could be impounded and put beyond use during the pendency of litigation on an alleged debt, all by a writ of sequestration issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer, violated due process both facially and as applied. Keelon v. Davis, 475 F. Supp. 204, 1979 U.S. Dist. LEXIS 13403 (N.D. Miss. 1979).

Although there had been reasonable grounds upon which to seek the issuance of a writ of sequestration of defendant’s funds and the writ was not wrongfully sued out in the first instance, the sequestration would be set aside where subsequent developments demonstrated that the funds had been wrongfully sequestered because of plaintiff’s failure to sustain her cause of action in any material respect. Altherr v. Swiss American of Mississippi, Inc., 446 F. Supp. 17, 1977 U.S. Dist. LEXIS 16482 (N.D. Miss. 1977).

Personal property in the state of a nonresident may be seized under an attachment in chancery to await final decree upon filing the required affidavit and bond. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Seizure of automobile under writ of sequestration issued after sequestration bond was duly furnished by complainant was void where no affidavit was filed showing that complainant had good reason to believe, and did believe, that there was danger of the removal of the property involved in the suit beyond the limits of the state or of its concealment in the state so as to be beyond the process of the court, or of its transfer so as to defeat the rights of complainant, and that such removal, concealment or transfer was about to occur. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Writ of sequestration can be issued only in pending case where complaint has been filed and is in reference to personal property; writ of sequestration issued prior to filing bill is irregular and should be quashed on motion. Yazoo Delta Mortg. Co. v. Hutson, 140 Miss. 461, 106 So. 5, 1925 Miss. LEXIS 280 (Miss. 1925).

Chancery court has jurisdiction of writ of sequestration for preservation of personal property independent of statute. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration, § 19.

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 8 (Writ of sequestration to preserve property pending litigation).

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 26 (Writ of sequestration for failure to comply with court order.

Writ of sequestration, 18 Am. Jur. Pl & Pr Forms, Sequestration, Forms 421, 422.

CJS.

79A C.J.S., Sequestration § 23.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-3. Affidavit required.

Before any writ of sequestration shall issue, the complainant shall make and file an affidavit showing that he has good cause to believe, and does believe, that there is danger of the removal of the property involved in the suit beyond the limits of the state, or of its concealment in the state so as to be beyond the process of the court, or of its transfer so as to defeat the rights of the complainant, and that such removal, concealment, or transfer is about to occur, and, moreover, shall give the bond required by Section 11-29-5.

HISTORY: Codes, 1880, § 1854; 1892, § 512; 1906, § 563; Hemingway’s 1917, § 323; 1930, § 409; 1942, § 1329.

Cross References —

Affidavit required for attachments against debtors, see §11-33-9.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Personal property in the state of a non-resident may be seized under an attachment in chancery to await final decree upon filing the required affidavit and bond. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Seizure of automobile of nonresident under writ of sequestration was void, and court had no jurisdiction to order a sale of trust property, where no affidavit was filed as required by this section [Code 1942, § 1329]. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

The personal property of a non-resident defendant can be seized under an attachment in chancery to await final decree only upon affidavit and bond as required by this section [Code 1942, § 1329] regulating the writ of sequestration. Advance Lumber Co. v. Laurel Nat'l Bank, 86 Miss. 419, 38 So. 313, 1905 Miss. LEXIS 27 (Miss. 1905).

Decree refusing to dismiss sequestration proceedings will not be reversed because of error in not requiring affidavit to be amended so as to conform literally with statute. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration, § 19.

CJS.

79A C.J.S., Sequestration §§ 12-17.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-5. Security required.

Before the writ of sequestration shall issue in any case, the complainant shall enter into bond with sufficient sureties, payable to the defendant, in double the value of the property proposed to be seized, to be fixed by the clerk from affidavit, or such evidence as may satisfy him, conditioned to pay all damages which may accrue from the wrongful seizure of the property to be sequestered, which bond shall be filed in the cause.

HISTORY: Codes, 1880, § 1854; 1892, § 513; 1906, § 564; Hemingway’s 1917, § 325; 1930, § 410; 1942, § 1330.

Cross References —

Bond required for seizure of perishable commodities, see §11-1-43.

Bond required in attachments against debtors, see §§11-33-11 through11-33-15.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where mule was sequestered sureties on bond not liable when mule died before final decree. Gaddis v. Clegg, 118 Miss. 607, 79 So. 811 (Miss. 1918).

The personal property of a nonresident defendant can be seized under an attachment in chancery to await final decree only upon affidavit and bond as required by this section [Code 1942, § 1330]. Advance Lumber Co. v. Laurel Nat'l Bank, 86 Miss. 419, 38 So. 313, 1905 Miss. LEXIS 27 (Miss. 1905).

The bond secures damages resulting from the wrongful seizure of the property, but not attorney’s fees and other expenses incident to the case in which the writ is obtained. Stauffer v. Garrison, 61 Miss. 67, 1883 Miss. LEXIS 73 (Miss. 1883).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration §§ 18, 40, 41.

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 5 (Bond by plaintiff to sequester personal property during pendency of action).

CJS.

79A C.J.S., Sequestration §§ 12-17.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-7. Writ granted by chancellor or judge.

Writs of sequestration may also be ordered, and the amount of the bond to be given therefor by complainant may be prescribed, by the chancellor or by any judge authorized to grant remedial process of such nature.

HISTORY: Codes, 1880, § 1854; 1892, § 517; 1906, § 568; Hemingway’s 1917, § 328; 1930, § 411; 1942, § 1331.

Cross References —

Jurisdiction to grant writ of sequestration, see §9-1-19.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration § 19.

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 8 (Writ of sequestration to preserve property pending litigation).

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 26 (Writ of sequestration for failure to comply with court order).

CJS.

79A C.J.S., Sequestration § 23.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-9. Contents of writ.

The writ of sequestration shall be directed to the sheriff or other proper officer commanding him to seize and take into possession the property in question and to hold the same until the further order of the court or chancellor, or until the defendant from whose possession the same was taken shall enter into bond with sufficient sureties, payable to the complainant in double the value of the property, to be assessed by the officer, conditioned to have the property forthcoming to abide the decree to be made by the court in the cause, or until the said defendant shall enter into bond with sufficient sureties, to be approved by the officer, payable to the complainant, in double the amount of the indebtedness claimed, conditioned for the performance of such final decree as may be entered in the cause. If a forthcoming bond be given, it shall be returned with the writ and filed in the cause, and, in case the property shall not be delivered or forthcoming to abide the decree, the bond shall have the force and effect of a judgment; and execution may issue thereon against all the obligors for the amount of the decree or the value of the property, according to the nature of the case. If a bond in double the debt be given, it shall be returned and filed with the papers in the cause. A bond in double the value of the property shall always be required, except when its value shall greatly exceed the debt and all probable costs.

HISTORY: Codes, 1880, § 1854; 1892, § 514; 1906, § 565; Hemingway’s 1917, § 324; 1930, § 412; 1942, § 1332.

Cross References —

Writ of sequestration dealing with perishable commodities, see §11-1-43.

Writ of sequestration in proceedings to partition personal property, see §11-21-71.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Independently of statute, a court of equity has jurisdiction to issue writ of seizure and preserve personal property awaiting final decree. Lee v. Lee, 135 Miss. 865, 101 So. 345, 1924 Miss. LEXIS 89 (Miss. 1924).

Sequestration bond is separate and distinct from injunction bond. Harleston v. West Louisiana Bank, 126 Miss. 593, 89 So. 257, 1921 Miss. LEXIS 67 (Miss. 1921).

Sequestration bond may be required to be made in Supreme Court. Harleston v. West Louisiana Bank, 126 Miss. 593, 89 So. 257, 1921 Miss. LEXIS 67 (Miss. 1921).

In suit by tenants to cancel deed absolute in form on theory that it was a mortgage, on cross-bill of defendant landlord it is within the discretion of the chancellor to issue writ of sequestration to seize sufficient crops to cover rents upon proper bond to indemnify complainants. McGehee v. Weeks, 112 Miss. 483, 73 So. 287, 1916 Miss. LEXIS 132 (Miss. 1916).

Where property was sequestered, defendant’s forthcoming bond was governed by this section [Code 1942, § 1332] and court could not give decree thereon for wrongful detention. Bomer v. Meeks, 106 Miss. 870, 64 So. 833, 1914 Miss. LEXIS 31 (Miss. 1914).

Forthcoming bond need be only double the debt where the value of the property greatly exceeds the debt, but where debt equals or exceeds the value of the property bond must be double value or property. Bomer v. Meeks, 106 Miss. 870, 64 So. 833, 1914 Miss. LEXIS 31 (Miss. 1914).

Sequestration bond with only one surety may be amended so as to comply with law. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration § 25.

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 34 (Bond by defendant to retain possession of sequestered property).

CJS.

79A C.J.S., Sequestration § 21.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-11. Complainant may bond the property in certain cases.

Should the defendant fail to give bond as above allowed, within five days from the date of seizure, then the complainant at whose instance the property was seized may give such bond and receive the property. In such case, the bond shall be dealt with in all respects as if the defendant had given it and retained the property.

HISTORY: Codes, 1880, § 1854; 1892, § 515; 1906, § 566; Hemingway’s 1917, § 326; 1930, § 413; 1942, § 1333.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

In suit by tenants to cancel deed absolute in form on theory that it was a mortgage, on cross-bill by defendant landlord it is within the discretion of the chancellor to issue writ of sequestration to seize sufficient crops to cover rents upon proper bond to indemnify complainants. McGehee v. Weeks, 112 Miss. 483, 73 So. 287, 1916 Miss. LEXIS 132 (Miss. 1916).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration, § 24.

22 Am. Jur. Pl & Pr Forms (Rev), Sequestration, Form 33 (Bond by plaintiff to indemnify sequestering officer).

CJS.

79A C.J.S., Sequestration §§ 30-52.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-29-13. Disposal of property if not bonded.

If neither of the parties litigant shall give such bond as allowed within ten days after the seizure, the officer having possession of the property shall sell the same, in the mode prescribed by law for selling property levied upon under writs of fieri facias, if the property be liable to waste or decay, or if subject to extraordinary expense in preserving the same, and hold the proceeds subject to the future orders of the court. If the property be not liable to waste or decay, or be not expensive to keep, it shall be held by such officer, unless the court or the chancellor shall order it to be sold, as may be done when it is thought best to do so. If such property shall be sold, either by the officer seizing it, in the state of case provided for when he may sell it, or by order of the court or chancellor, the proceeds of such sale shall be subject to the orders of the court or chancellor, as to their safe keeping or investment, during the litigation. If the property seized be liable to immediate waste or decay, it shall be sold immediately. If the defendant do not give bond to retain the property within five days from its seizure, and the complainant do not do so within five days after defendant’s failure, either party may, before sale of the property, give the required bond and receive the property, or after sale may give such bond and receive the proceeds.

HISTORY: Codes, 1880, § 1854; 1892, § 516; 1906, § 567; Hemingway’s 1917, § 327; 1930, § 414; 1942, § 1334.

Cross References —

Sale of property under attachment, see §§11-33-71 and11-33-73.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where in suit to enforce a mechanic’s lien for labor done on a wrecked automobile, the bill of complaint alleged that credit company claimed some interest in such automobile, and such credit company was served with process by publication and decree pro confesso was taken against such company upon its failure to appear, and on appeal credit company was permitted to file forthcoming bond, appeal could not be defeated on ground that credit company was not a party to the suit. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Where automobile seized under writ of sequestration in an attachment in chancery was ordered sold for the payment of complainant’s mechanic lien thereon, and neither party had given bond therefor, defendant on appeal before sale was entitled to give forthcoming bond in amount sufficient to protect the rights of all the parties and to receive automobile from sheriff pending final determination of cause. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

The independent and illegal act of the sheriff in selling property not subject to waste or decay is not cause for reversal of the decree of the court. Day v. Hartman, 74 Miss. 489, 21 So. 302, 1896 Miss. LEXIS 172 (Miss. 1896).

RESEARCH REFERENCES

Am. Jur.

70 Am. Jur. 2d, Sequestration, §§ 28, 30.

CJS.

50A C.J.S., Judicial Sales §§ 28-47.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

Chapter 31. Attachment in Chancery Against Nonresident, Absent or Absconding Debtors

§ 11-31-1. Jurisdiction; debtors.

The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance.

HISTORY: Codes, 1880, § 1832; 1892, § 486; 1906, § 536; Hemingway’s 1917, § 293; 1930, § 173; 1942, § 2729.

Cross References —

Cases in which attachment is a remedy, see §11-33-1.

Disposal of exempt property, see §85-3-49.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Jurisdiction.

4. —Special appearance.

5. Demands on which attachment may be founded.

6. Property subject to attachment.

7. Persons entitled to sue.

8. Nonresidents.

9. Persons subject to attachment.

10. Procedure.

11. Pleading.

12. Parties.

13. Judgment.

14. —Pro confesso decree.

15. —Personal decrees.

16. Res judicata.

17. Auxiliary relief.

18. —Injunction.

19. —Receiver, appointment of.

20. Damages.

21. —Attorney fees, allowance of.

1. Validity.

Inclusion of safeguards to minimize the risk of an erroneous pre-hearing deprivation, coupled with the availability of an immediate post-attachment hearing to dissolve the attachment, met the demands of due process; the Mississippi statute required that the complainant set forth the specific facts supporting his claim and permitted an order of attachment to issue only if the chancellor found the complainant had established a prima facie case demonstrating his right to recover on his claim, the Mississippi statute required that the complainant state specific reasons why his ability to recover on his claim was at risk if the order of attachment was not issued, and attachment was only available if the chancellor found that the complainant’s ability to recover could be significantly impaired or impeded without an order of attachment, and the Mississippi procedure mandated that the complainant put up a bond to protect the defendant in the event the attachment was later found to have been wrongful. Performance Drilling Co., LLC v. H & H Welding, LLC, 2009 U.S. Dist. LEXIS 32190 (S.D. Miss. Apr. 15, 2009).

Mississippi Attachment Statute (§§11-31-1 et seq.) is not unconstitutional notwithstanding defendant’s contentions that (1) it fails to require nexus between property attached and underlying claim, (2) it does not provide for pre-seizure notice or pre-seizure hearing, (3) it prohibits defendant from making limited appearance to defend his claim to property attached, (4) its bond requirements are unfair and discriminatory as to attached defendant, and (5) it is silent as to future accruing debts. Estate of Portnoy v. Cessna Aircraft Co., 603 F. Supp. 285, 1985 U.S. Dist. LEXIS 22471 (S.D. Miss. 1985).

The statutory procedure for the attachment of realty, under which attachment could be invoked without any showing of a particularized need, so long as defendant debtor was a nonresident, was violative of due process both facially and as applied to the breach of contract action at issue. M P I, Inc. v. McCullough, 463 F. Supp. 887, 1978 U.S. Dist. LEXIS 7247 (N.D. Miss. 1978).

The statutory provisions allowing for attachment in chancery against nonresident, absent or absconding debtors were unconstitutional on their face and as applied where, inter alia, they did not require the plaintiff to obtain any court ordered writ of sequestration or garnishment, where no bond was required of the plaintiff, where there was no judicial review of the validity of the attachment, either before or after service upon the attachment defendant, and where only by prevailing at trial on the merits could the principal defendant obtain relief from the attached indebtedness; as a matter of fairness and justice, sums owed to the principal defendant by nonresident attachment defendants arising out of transactions having no connection with Mississippi would be excluded from garnishment. Mississippi Chemical Corp. v. Chemical Constr. Corp., 444 F. Supp. 925, 1977 U.S. Dist. LEXIS 18154 (S.D. Miss. 1977).

Statute authorizing attachment suit against nonresident railroad doing business in county where necessary defendant may be found but where nonresident has no line of railroad or agent held not to deprive nonresident of equal protection of law. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Attachment suit against nonresidents brought in county of any necessary defendants as authorized by statute does not unconstitutionally discriminate against any necessary defendant. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Attachment proceeding against nonresident interstate railroad in which traffic balances due defendant from other interstate railroads were impounded held not unlawful burden on interstate commerce. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

2. Construction and application generally.

In an action against an out-of-state university, where the university engaged in a wide variety of educational functions in the recruitment and education of students from Mississippi, encouraged alumni activities in Mississippi, including the solicitation and acceptance of funds from alumni and friends in the state, and participated in a variety of intercollegiate competitions and activities with private and public institutions in Mississippi, such activities were sufficient under §11-31-1 to render it constitutionally amenable to an adjudication of its rights in funds held by a clerk of the Chancery court. Administrators of Tulane Educational Fund v. Cooley, 462 So. 2d 696, 1984 Miss. LEXIS 2051 (Miss. 1984), cert. denied, 474 U.S. 820, 106 S. Ct. 70, 88 L. Ed. 2d 57, 1985 U.S. LEXIS 3244 (U.S. 1985).

In action by Kansas resident against defendant drug company, a Delaware corporation, for damages resulting from the use of birth control pills manufactured by defendant and sold in Kansas, plaintiff could properly attach under Code 1942, § 2729, moneys owed by 3 drug wholesale firms indebted to the defendant who did business in Mississippi, notwithstanding that the defendant owned no property in Mississippi and was not licensed to do business in Mississippi. Steele v. G. D. Searle & Co., 483 F.2d 339, 1973 U.S. App. LEXIS 8350 (5th Cir. Miss. 1973), cert. denied, 415 U.S. 958, 94 S. Ct. 1486, 39 L. Ed. 2d 572, 1974 U.S. LEXIS 996 (U.S. 1974).

An action on a contract against a nonresident defendant initiated by attachment in chancery under the provisions of this section [Code 1942, § 2729] is not an action in rem, but one in personam. Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 1968 U.S. App. LEXIS 8302 (10th Cir. Okla.), cert. denied, 391 U.S. 905, 88 S. Ct. 1654, 20 L. Ed. 2d 419, 1968 U.S. LEXIS 1784 (U.S. 1968).

In the absence of any allegation in the bill of complaint or of proof to sustain an attachment in chancery, a real estate broker’s suit for a commission allegedly earned by him should have been dismissed; however, the Supreme Court may not reverse because of error or mistake as to whether a cause is of equity or common law jurisdiction. Minter v. Hart, 208 So. 2d 169, 1968 Miss. LEXIS 1397 (Miss. 1968).

The status quo of an attachment in chancery is not preserved by statute while the appeal is pending, as attachments in the Circuit Court are preserved by Code 1942, § 2724; and where a second nonresident attachment proceeding was brought against the same property after the first action had been appealed, the dubious effectiveness of the original attachment and lis pendens after an appeal had been taken without supersedeas, and because new issues had arisen which required the joinder of additional parties defendant, the second attachment should not have been quashed on the ground of a prior pending action. General Acceptance Corp. v. Holbrook, 189 So. 2d 923, 1966 Miss. LEXIS 1385 (Miss. 1966).

Attachments in chancery in Mississippi are unique proceedings in the field of attachment law in the sense that the service of the attachment defendant does not bring any fund into the possession, custody, or control of the court, no moneys are paid into the registry of the court, and no bond is required. Dunn v. Stewart, 235 F. Supp. 955, 1964 U.S. Dist. LEXIS 6859 (S.D. Miss. 1964), rev'd, 363 F.2d 591, 1966 U.S. App. LEXIS 5653 (5th Cir. Miss. 1966).

Garnishment will not lie against the attachment defendant at the initiation of the action. Dunn v. Stewart, 235 F. Supp. 955, 1964 U.S. Dist. LEXIS 6859 (S.D. Miss. 1964), rev'd, 363 F.2d 591, 1966 U.S. App. LEXIS 5653 (5th Cir. Miss. 1966).

The attachment of the property of a nonresident creates a lien which attaches when the writ is served. Associates Discount Corp. v. Clark, 240 Miss. 723, 128 So. 2d 535, 1961 Miss. LEXIS 503 (Miss. 1961).

An attachment in chancery is primarily a proceeding in rem. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

That Code commissioners took statute providing for attachments in chancery out of chancery court chapter and placed it in chapter on attachment neither added to nor took anything away from statute. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Garnishment statutes held inapplicable to attachments in chancery, wherein pleadings, practice, and procedure are that of chancery court except where otherwise provided by statutes. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Attachment statutes held inapplicable to attachments in chancery, wherein pleadings, practice, and procedure are that of chancery court except where otherwise provided by statutes. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Neither statute preventing for 96 hours remission of proceeds of draft, nor attachment suit, changed the relationship of debtor and creditor and converted collecting bank into trustee for forwarding bank or latter’s principal. Love v. Fulton Iron Works, 162 Miss. 890, 140 So. 528, 1932 Miss. LEXIS 181 (Miss. 1932).

3. Jurisdiction.

Where the bill of complaint in a suit for attachment and garnishment alleged that the debtor owed the complainant for certain building material found to be in the possession of the defendant in Mississippi, and the defendant filed an answer in which he admitted that he had certain effects belonging to the debtor, the jurisdiction of the chancery court was established. Crescent Plywood Co. v. Lawrence, 305 So. 2d 343, 1974 Miss. LEXIS 1477 (Miss. 1974).

An attachment is not invalid because the complainant’s motion for leave to amend and ask for an attachment was not sworn to, where the jurisdictional facts contributing grounds for attachment had been stated in the complaint. 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 a 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 or property in the hands of a Mississippi corporation, where the plaintiff did not get process by publication of summons on the nonresident defendant as required by Code 1942, § 2733, but relied solely on the attempted personal service executed on an employee, who was not such an agent of defendant upon whom process could be served, the chancellor committed reversible error in overruling defendant’s motion to dismiss for want of jurisdiction, even though the Mississippi corporation had answered admitting an indebtedness due to the defendant. Alabama, T. & N. R. Co. v. Howell, 244 Miss. 157, 141 So. 2d 242, 1962 Miss. LEXIS 433 (Miss. 1962).

Jurisdiction of an action against a nonresident unincorporated labor union may be obtained by an attachment of its personal property within the state. Lowery v. International Brotherhood of Boilermakers, etc., 241 Miss. 458, 130 So. 2d 831, 1961 Miss. LEXIS 365 (Miss. 1961).

Where an attachment suit was filed in chancery against a resident defendant and a nonresident defendant to subject funds that were in the hands of resident defendant, to determine which of the two defendants was liable to the complainants for labor performed on resident defendant’s leased premises, and where also a bill of discovery was filed as to what funds resident defendant had in his hands belonging to the nonresident defendant, there was sufficient to confer jurisdiction on chancery court. Taylor v. Hines, 221 Miss. 759, 74 So. 2d 834, 1954 Miss. LEXIS 590 (Miss. 1954).

Neither a special nor a general appearance by a defendant admits the jurisdiction of the court. Martin v. Adams Mercantile Co., 203 Miss. 177, 33 So. 2d 633, 1948 Miss. LEXIS 247 (Miss. 1948).

Jurisdiction in attachment suits is lacking where the defendant does not own the land upon which the attachment is levied. Martin v. Adams Mercantile Co., 203 Miss. 177, 33 So. 2d 633, 1948 Miss. LEXIS 247 (Miss. 1948).

Attachment proceedings cannot be sustained where nonresident debtor has no lands in this state and no effects in the hands of some resident third person, and where no resident third person is alleged to be indebted to him, although he may have personalty in this state. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Attachment will not lie to reach the interest of nonresident partners in a partnership bank deposit, where to do so it would be necessary for the court to wind up the partnership and distribute its assets in order to ascertain the interest of such nonresident partners. S. & W. Const. Co. v. Wood, 194 Miss. 831, 13 So. 2d 625, 1943 Miss. LEXIS 102 (Miss. 1943).

Lower court properly overruled motion to dismiss bill of complaint upon quashing of attachment against partnership, consisting of one resident and two nonresident members, since complainant’s claim for damages remains for trial against two members of the partnership on whom process was served. S. & W. Const. Co. v. Wood, 194 Miss. 831, 13 So. 2d 625, 1943 Miss. LEXIS 102 (Miss. 1943).

Equity jurisdiction by attachment under this section [Code 1942, § 2729] can be raised by motion separately filed. Ford v. Mutual Life Ins. Co., 194 Miss. 519, 13 So. 2d 45, 1943 Miss. LEXIS 94 (Miss. 1943).

In order to sustain an attachment in chancery against a nonresident, there must be a debt owing from the nonresident, and there must be effects in the hands of the resident defendants, or land must be attached in the manner provided by the statute to give the court jurisdiction. York v. York, 187 Miss. 465, 193 So. 330, 1940 Miss. LEXIS 223 (Miss. 1940).

Words “persons in this State” mean persons residing in this State, and process on nonresidents temporarily residing in State does not give court jurisdiction over them. Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571, 1938 Miss. LEXIS 109 (Miss. 1938).

Service of process in another county upon corporation domesticated in State did not give court jurisdiction over it in absence of process on defendant residing in county. Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571, 1938 Miss. LEXIS 109 (Miss. 1938).

Chancery court held to have jurisdiction of foreign attachment to recover unliquidated claim for alimony from executors of estate of deceased father of principal defendant under statute providing that chancery court shall have jurisdiction of attachment suits for breach of contract, express or implied, against persons in Mississippi having in their hands effects of, or indebted to, an absent or absconding debtor. Kearney v. Kearney, 178 Miss. 766, 174 So. 59, 1937 Miss. LEXIS 246 (Miss. 1937).

Circuit court held vested with jurisdiction of action transferred by chancery court, whether action was one of law cognizance or not. Dunn v. Dent, 176 Miss. 786, 170 So. 299, 1936 Miss. LEXIS 174 (Miss. 1936).

Chancery court of county in which attachment suit was filed against domestic bank, which bill alleged was domiciled in another county, and foreign bank, to which garnished domestic corporation, domiciled in another county, was alleged to be indebted, to recover amount of check on ground of banks’ negligence in collection thereof, had no territorial jurisdiction of domestic bank, between which and garnishee there was neither privity nor connection. Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104, 1935 Miss. LEXIS 107 (Miss. 1935).

Court, by personal service on agent of garnishee, foreign corporation, found doing business in State, and therefore subject to suit by nonresident employee, creditor, acquired jurisdiction over garnishee to require answer and to condemn any indebtedness due from it to employee-creditor under employment contract made and performable outside State. Bean v. Bean, 166 Miss. 434, 147 So. 306, 1933 Miss. LEXIS 367 (Miss. 1933).

Chancery court acquired jurisdiction of attachment suit where defendant did not plead specially to court’s jurisdiction but defended generally. Mobile & O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627, 1933 Miss. LEXIS 255 (Miss. 1933).

Chancery court has jurisdiction to subject property in hands of resident defendant to obligation of non-resident in favor of creditor; exercise of statutory jurisdiction to subject property in hands of resident defendant to obligation of non-resident is not one of original jurisdiction. Boyett v. Boyett, 152 Miss. 201, 119 So. 299, 1928 Miss. LEXIS 262 (Miss. 1928).

Chancery court cannot try claimant’s issue against non-resident claimant who does not voluntarily enter his appearance or who has not been personally served with process. Delta Ins. & Realty Agency v. Fourth Nat'l Bank, 137 Miss. 855, 102 So. 846, 1925 Miss. LEXIS 31 (Miss. 1925).

Chancery court on a bill against a nonresident partner to enforce his individual liability for a debt, had jurisdiction to issue an attachment against his individual real estate in Mississippi. Dinwiddie v. Glass, 111 Miss. 449, 71 So. 745, 1916 Miss. LEXIS 319 (Miss. 1916).

If the garnishee be personally served with process in this state the court acquires jurisdiction over him and can garnish the debt due the debtor of plaintiff and condemn it, provided the garnishee could himself be sued by his creditors in this state, regardless of the original situs of the debt outside the state. Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (Miss. 1911).

Chancery court has no jurisdiction of an attachment against a non-resident debtor unless the land or tenements of the non-resident be levied upon or the resident defendant be indebted to or have effects of the non-resident in his hands or possession. Louis Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876, 1906 Miss. LEXIS 91 (Miss. 1906).

The court under this section [Code 1942, § 2729] has no jurisdiction of an attachment of a nonresident debtor who has no lands in this state and no effects in the hands of some resident although he have personalty in this state. Advance Lumber Co. v. Laurel Nat'l Bank, 86 Miss. 419, 38 So. 313, 1905 Miss. LEXIS 27 (Miss. 1905).

Independently of statute, by virtue of its general equity powers, the court may, without a judgment at law and nulla bona return, subject to the demand of creditors the effects in this state of a non-resident. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

The basis of the chancery jurisdiction is statutory. Complainant need not show equity independent of the statute. Scruggs v. Blair, 44 Miss. 406, 1870 Miss. LEXIS 126 (Miss. 1870); Statham v. New York Life Ins. Co., 45 Miss. 581, 1871 Miss. LEXIS 106 (Miss. 1871); T. H. & J. M. Allen & Co. v. Montgomery, 48 Miss. 101, 1873 Miss. LEXIS 39 (Miss. 1873).

4. —Special appearance.

Special appearance by a foreign domesticated insurance company, challenging the jurisdiction of the court, resulting in a quashing of the attachment, did not authorize the chancellor to dismiss the bill where personal process had been had on the insurance company by service upon the state insurance commissioner. Ford v. Mutual Life Ins. Co., 194 Miss. 519, 13 So. 2d 45, 1943 Miss. LEXIS 94 (Miss. 1943).

Nonresident debtor in attachment suit, appearing solely for purpose of objecting, did not, thereby, submit to jurisdiction of court. Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571, 1938 Miss. LEXIS 109 (Miss. 1938).

Defendant’s appearance especially for purpose of moving to quash attachment and dismiss bill for want of jurisdiction cannot operate as personal appearance. First Nat'l Bank v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349, 1934 Miss. LEXIS 225 (Miss. 1934).

5. Demands on which attachment may be founded.

In an action against a sheriff and his surety based on the sheriff’s alleged tort, it is not necessary that the sheriff’s liability be determined and fixed by decree or judgment before an attachment will lie against the nonresident surety. Holyfield v. State, 194 Miss. 91, 10 So. 2d 841, 1942 Miss. LEXIS 165 (Miss. 1942).

Where the codicil to a former will transformed the debt of a beneficiary under such will into an advancement, and such codicil was signed by the beneficiary, a subsequent will directing the executors to collect the sum in question as a debt did not operate, without the consent of the beneficiary concerned, to recreate it as a debt on which an attachment in chancery could be founded. York v. York, 187 Miss. 465, 193 So. 330, 1940 Miss. LEXIS 223 (Miss. 1940).

Statutory penalties for violating antitrust law held “indebtedness” within attachments statute. Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 1921 Miss. LEXIS 46 (Miss. 1921).

A bill is maintainable against a nonresident having property in this state to redress a wrong, even if the damages are unliquidated. Gordon v. Warfield, 74 Miss. 553, 21 So. 151, 1896 Miss. LEXIS 158 (Miss. 1896); Illinois C. R. Co. v. Lucas, 89 Miss. 411, 42 So. 607, 1906 Miss. LEXIS 64 (Miss. 1906).

A demand for rents by an infant or insane person against a disseizor can be maintained by an attachment in chancery. Robinson v. Burritt, 66 Miss. 356, 6 So. 206, 1889 Miss. LEXIS 105 (Miss. 1889).

The complainant need not have a judgment at law. Comstock v. Rayford, 9 Miss. 423, 1843 Miss. LEXIS 178 (Miss. 1843); Zecharie & Kerr v. Bowers, 11 Miss. 641, 1844 Miss. LEXIS 99 (Miss. 1844), overruled, Equitable Fire Ins. Co. v. Alexander, 12 So. 25 (Miss. 1892), overruled, Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

6. Property subject to attachment.

The automobile of a nonresident may be attached in an action for damages caused by a collision in which it was involved. Associates Discount Corp. v. Clark, 240 Miss. 723, 128 So. 2d 535, 1961 Miss. LEXIS 503 (Miss. 1961).

In a suit by attachment in chancery against nonresidents, the seizure of their community automobile gave the plaintiff a lien upon it to satisfy his recovery, and there was no error in subjecting the proceeds from the agreed sale of the car to the satisfaction of plaintiff’s recovery. Vining v. Smith, 213 Miss. 850, 58 So. 2d 34, 1952 Miss. LEXIS 434 (Miss. 1952).

Land within the state sold by a nonresident defendant is subject to levy if the deed to purchaser has not been filed of record prior to the levy. Martin v. Adams Mercantile Co., 203 Miss. 177, 33 So. 2d 633, 1948 Miss. LEXIS 247 (Miss. 1948).

Funds of nonresident prime contractor to become due under contract with the State Highway Commission, which, prior to service of attachment process, in good faith and for purpose of financing performance of the prime contract, had been assigned as security for advances therein, do not constitute such effects of prime contractor as may be reached by attachment process in chancery until they have been or should have been released by the lender to the prime contractor. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Percentages retained by the State Highway Commission under the prime contract are not such “effects” of the nonresident contractor as may be reached by process of attachment in chancery, where so retained under the contract in good faith. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

An attachment will not lie under this section [Code 1942, § 2729] to reach the interests of nonresident members of a partnership in a partnership bank deposit, where the effect of the attachment would be to withdraw from a resident partner the use and control of his interest in the deposit. S. & W. Const. Co. v. Wood, 194 Miss. 831, 13 So. 2d 625, 1943 Miss. LEXIS 102 (Miss. 1943).

Indebtedness of an insured to a life insurance company by virtue of a loan on the policy is not an indebtedness subject to attachment within the purview of this section. Ford v. Mutual Life Ins. Co., 194 Miss. 519, 13 So. 2d 45, 1943 Miss. LEXIS 94 (Miss. 1943).

Under contract whereby nonresident mill company was to deliver flour to resident purchaser when purchaser paid draft for purchase price and where payment of draft and passing of title to flour took place simultaneously, “indebtedness” held not to exist from purchaser to mill company which could be reached by claimant for damages against mill company by foreign attachment in chancery. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Existing indebtedness only can be subjected to attachment, but unliquidated damages cannot be so reached. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Funds of non-resident corporations violating anti-trust law are subject to attachment in hands of resident agent, such agent not being entitled to retain the funds of the principal as against the state. Nugent & Pullen v. Robertson, 126 Miss. 419, 88 So. 895, 1921 Miss. LEXIS 47 (Miss. 1921).

What “effects” bound in hands of resident defendants stated. Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 1921 Miss. LEXIS 46 (Miss. 1921).

The personal property of a non-resident defendant can be seized under an attachment in chancery to await final decree only upon affidavit and bond as required by Code 1892 §§ 512 and 513 regulating the right of sequestration. Advance Lumber Co. v. Laurel Nat'l Bank, 86 Miss. 419, 38 So. 313, 1905 Miss. LEXIS 27 (Miss. 1905).

The proceeds of such a draft are liable to the consignee for damages resulting from shortage in weight and defective quality of the particular goods represented by the bill of lading, but not for the failure of the consignor to deliver other goods, although they may be included in the one contract of sale. Exchange Nat'l Bank v. Russell, 81 Miss. 169, 32 So. 314, 1902 Miss. LEXIS 109 (Miss. 1902).

Where a resident consignee attaches the proceeds of a draft paid by him in the hands of a resident state bank for damages arising out of the consignor’s breach of contract, and makes a non-resident national bank, which had bought the draft for the price of the grain consigned, with a bill of lading attached, a defendant, there is no attachment against the national bank within § 5242 Rev. Stat. U. S. 1878, prohibiting an attachment against a national bank or its property. Russel v. Smith Grain Co., 80 Miss. 688, 32 So. 287 (Miss. 1902).

An attachment under this section [Code 1942, § 2729] cannot be maintained if the only property of the non-resident in this state be an unliquidated demand for damages because of a tort committed by a resident defendant. Blair v. Kansas C., M. & B. R. Co., 76 Miss. 478, 24 So. 879, 1898 Miss. LEXIS 110 (Miss. 1898).

An unliquidated liability for damages because of a tort is not subject to garnishment, either at law or in equity. Gordon v. Warfield, 74 Miss. 553, 21 So. 151, 1896 Miss. LEXIS 158 (Miss. 1896); Blair v. Kansas C., M. & B. R. Co., 76 Miss. 478, 24 So. 879, 1898 Miss. LEXIS 110 (Miss. 1898).

7. Persons entitled to sue.

Where foreign corporations were doing business in Alabama, Tennessee and Mississippi, the foreign corporations were persons within the meaning of attachment statutes and could sue in the state or be sued or proceeded against, by attachment or otherwise, as individual nonresident debtors may be sued or proceeded against. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

Where attachment proceedings in chancery were commenced by the state tax collector on behalf of the state against non-resident construction companies, wherein it was sought to make a municipality garnishee, to collect excise taxes claimed to be due from the defendant, to which the municipality was alleged to be indebted, a motion by the municipality to dismiss the proceedings as to it should not have been overruled, since the state collector was without authority to bring proceedings on behalf of the state to collect the tax. City of Natchez v. Craig, 191 Miss. 567, 3 So. 2d 837, 1941 Miss. LEXIS 170 (Miss. 1941).

One having an equitable interest in a shipment of flour for his profits on the sale thereof, held entitled to attach the proceeds of the sale in the hands of a local bank, where both the buyer and seller are non-residents. Regina Flour Mills Co. v. Lehmann, 117 Miss. 575, 78 So. 515, 1918 Miss. LEXIS 199 (Miss. 1918).

So may resident complainants. Freeman v. Guion, 19 Miss. 58, 1848 Miss. LEXIS 156 (Miss. 1848).

Non-resident complainants may sue. Comstock v. Rayford, 9 Miss. 423, 1843 Miss. LEXIS 178 (Miss. 1843); Zecharie & Kerr v. Bowers, 11 Miss. 641, 1844 Miss. LEXIS 99 (Miss. 1844), overruled, Equitable Fire Ins. Co. v. Alexander, 12 So. 25 (Miss. 1892), overruled, Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892); Freeman v. Malcom, 19 Miss. 53, 1848 Miss. LEXIS 155 (Miss. 1848).

8. Nonresidents.

In a personal injury action against a domesticated foreign corporation, the trial court’s exercise of jurisdiction as an attachment in chancery on the grounds of nonresidency did not violate the corporation’s right to equal protection of the laws, even though it claimed to be a domestic corporation for all intents and purposes, where the state of incorporation retained, inter alia, supervisory power and the final authority to dissolve the corporation. Louisville & N. R. Co. v. Hasty, 360 So. 2d 925, 1978 Miss. LEXIS 2307 (Miss.), cert. denied, 439 U.S. 1003, 99 S. Ct. 614, 58 L. Ed. 2d 679, 1978 U.S. LEXIS 4129 (U.S. 1978).

Foreign railroad corporation with line of railroad within State and property subject to execution and liable to personal judgment held, nevertheless, “nonresident” within attachment statute. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

“Non-resident” in chancery attachment suit held to include foreign insurance companies which have not become domesticated, notwithstanding that personal judgment may be obtained by service on insurance commissioner. Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 1921 Miss. LEXIS 46 (Miss. 1921).

9. Persons subject to attachment.

Where, in litigation growing out of death and injuries sustained in a collision of two automobiles filed in the chancery court in the county where letters of administration of the decedent’s estate were issued, complainants charged that the accident was due to the negligence of a construction company in obstructing the highway, charged negligence in the operation of his automobile on the part of another defendant, who it was alleged was an agent of a nonresident insurance company, and also charged, on information and belief, that another defendant had money and effects of the nonresident insurance company, and prayed for an attachment, and, upon appeal from the decrees in favor of complainants, the Supreme Court found no reversible error in the record, the judgment would not be reversed in view of Mississippi Constitution § 147. Mathews v. Thompson, 231 Miss. 258, 95 So. 2d 438, 1957 Miss. LEXIS 512 (Miss. 1957).

A foreign corporation is a person who may be proceeded against as an individual nonresident debtor, by attachment or otherwise. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

Tendency of the legislature has been to enlarge the right of garnishment against public bodies, such as the State, counties and municipalities, even in law cases. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

State Highway Commission which held money due and owing to highway prime contractor, a non-resident corporation, could be sued as garnishee in a non-resident attachment in chancery, in suit by subcontractor to recover amount due from prime contractor, where the work was complete and finished and had been inspected and approved by the commission, and the garnishment involved no interruption of work or contest over instalment payments or the final payment. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Suit in attachment cannot be maintained against national bank to recover proceeds of warrant delivered to it, and appearance by bank did not vest court with jurisdiction. National City Bank v. Stupp Bros. Bridge & Iron Co., 147 Miss. 747, 113 So. 340, 1927 Miss. LEXIS 351 (Miss. 1927).

A municipality cannot over its objection be proceeded against under the statute so as to bind its indebtedness to a non-resident defendant; and aside from the statute it is not liable to garnishment for debts arising from its exercise of governmental functions. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892); Dollar v. Allen West Com. Co., 78 Miss. 274, 28 So. 876, 1900 Miss. LEXIS 116 (Miss. 1900); Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

A municipal corporation, or its board of school trustees, is not a “person” within the meaning of the statute; but it is intimated that aside from the statute, the court would, under certain circumstances, where its public functions would not be hampered, sustain the garnishment of a municipality. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

10. Procedure.

Procedural rules by which party seeks attachment in chancery are those provided by §§11-31-1 et seq., supplemented only by so much of Mississippi Rules of Civil Procedure as may be found not inconsistent with statute. Universal Computer Services, Inc. v. Lyall, 464 So. 2d 69, 1985 Miss. LEXIS 1901 (Miss. 1985).

Where chancery court acquired jurisdiction of local defendant under this section [Code 1942, § 2729], and the nonresident and other local defendants disappeared from the case, leaving no question of equity or chancery procedure therein, the court should not have dismissed the case against the remaining local defendant, but should have transferred it to the circuit court of the county of that defendant’s residence, if he so desired. Ragsdale v. Moore, 24 So. 2d 332 (Miss. 1946).

In attachments in chancery, garnishee is made defendant in the original cause against the non-resident debtor, and the only duty of the garnishee is to answer whether he is indebted to, or has in his possession effects of, such non-resident debtor, and, if so, to deliver the same to the court if it so ordered for disposition by the court as it may adjudicate to be lawful and equitable. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

In an attachment and garnishment proceeding in chancery, the resident defendant, property in whose hands is sought to be attached as property of a nonresident defendant, is not a “garnishee” in the technical and procedural sense of a garnishee in an attachment at law, and no writ of garnishment should be issued to him. He is simply a defendant with all the rights and privileges as such, and should simply be summoned to answer the suit as any other defendant is summoned. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So. 2d 844, 1941 Miss. LEXIS 172 (Miss. 1941).

Procedure in suit in chancery against non-resident debtor must be in accord with that of chancery court. Inman v. Travelers' Ins. Co., 153 Miss. 405, 121 So. 107, 1929 Miss. LEXIS 30 (Miss. 1929); Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Complainant not required to give bond before issuance of attachment. I. B. Rowell & Co. v. Sandifer, 129 Miss. 167, 91 So. 899, 1922 Miss. LEXIS 32 (Miss. 1922).

11. Pleading.

Non-resident defendant in attachment, not served with summons, will not be heard in his plea to the jurisdiction of the court, to alleged non-ownership of the property levied upon. Weaver Grocery Co. v. Cain Milling Co., 117 Miss. 781, 78 So. 769, 1918 Miss. LEXIS 221 (Miss. 1918).

12. Parties.

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 that lis pendens notice filed in suit created 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).

The presence of a resident defendant, in an attachment proceeding in chancery, who was alleged to have in his possession property of a nonresident defendant, was absolutely necessary to enable the complainant to proceed with her suit and to realize on any decree in her favor. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So. 2d 844, 1941 Miss. LEXIS 172 (Miss. 1941).

The fact that a resident defendant in a chancery attachment proceeding, who was alleged to have property belonging to non-resident defendants, was referred to in the bill as a “garnishee” and not as a defendant, was of no consequence, where such resident defendant appeared and answered. Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So. 2d 844, 1941 Miss. LEXIS 172 (Miss. 1941).

To maintain a proceeding under this section [Code 1942, § 2729] it is necessary to have some resident of the state who has property or effects in his possession or who owes a debt to a nonresident made defendant, and consequently such party is a necessary party to maintain an action under this section. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

13. Judgment.

Defendant who has entered appearance in attachment suit in chancery is subject to judgment upon demand there involved. Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399, 1930 Miss. LEXIS 237 (Miss. 1930).

If defendant is a non-resident and the res is within the territorial jurisdiction of the court and is brought into court by attachment or garnishment, the court may render a judgment in rem. Delta Ins. & Realty Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420, 1917 Miss. LEXIS 131 (Miss. 1917).

14. —Pro confesso decree.

Chancery court cannot acquire jurisdiction to render a decree pro confesso against non-resident claimant of subject matter of suit. Delta Ins. & Realty Agency v. Fourth Nat'l Bank, 137 Miss. 855, 102 So. 846, 1925 Miss. LEXIS 31 (Miss. 1925).

15. —Personal decrees.

Under this section [Code 1942, § 2729] court is authorized to give decree in personam against nonresident defendant on whom summons is personally served in suit by attachment in chancery for damages for breach of warranty arising out of sale of automobile. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

This section [Code 1942, § 2729] is primarily a proceeding in rem to subject nonresidents’ property to complainant’s demand; and a personal judgment in attachment suit against nonresidents can be rendered only where defendant has been personally served or has entered appearance. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

Personal judgment may be rendered against answering non-resident defendant in attachment in chancery. Branham v. Drew Grocery Co., 145 Miss. 627, 111 So. 155, 1927 Miss. LEXIS 149 (Miss. 1927).

Court of equity may, where a nonresident defendant has appeared and answered in the suit, render a personal decree against him for the balance of complainant’s debt not realized by sale of the attached property. John E. Hall Com. Co. v. Foote, 90 Miss. 422, 43 So. 676, 1907 Miss. LEXIS 87 (Miss. 1907).

A personal decree against a non-resident defendant, under § 486 Code 1892 (Code 1906, § 536), cannot be rendered. Rothrock Const. Co. v. Port Gibson Mfg. Co., 80 Miss. 517, 32 So. 116, 1902 Miss. LEXIS 298 (Miss. 1902).

16. Res judicata.

A decree determining the merits of a cross bill against a defendant and favorably to a complainant which was a bank of another State was res judicata of such defendant’s suit against bank commissioner of such other State under original and supplemental bills alleging facts set up in such cross bill, where court, at time of first suit, had same power sought to be invoked in second suit. Brock v. Adler, 180 Miss. 118, 177 So. 523, 1987 Miss. LEXIS 2986 (Miss. 1987).

17. Auxiliary relief.

18. —Injunction.

The complainant may, at the time of filing the bill, upon a sufficient and proper showing for it, obtain an injunction against the transfer or removal of the effects. Trotter v. White, 18 Miss. 607, 1848 Miss. LEXIS 143 (Miss. 1848).

19. —Receiver, appointment of.

Receiver under attachment in chancery where resident defendant is about to remit funds to non-resident defendant held proper. Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7, 1922 Miss. LEXIS 263 (Miss. 1922), writ of error dismissed, 263 U.S. 673, 44 S. Ct. 5, 68 L. Ed. 500, 1923 U.S. LEXIS 2833 (U.S. 1923), cert. denied, 263 U.S. 698, 44 S. Ct. 5, 68 L. Ed. 512, 1923 U.S. LEXIS 2968 (U.S. 1923).

Chancery court may appoint receivers in attachment suits in chancery pendente lite for the property of non-residents. Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 1921 Miss. LEXIS 46 (Miss. 1921).

20. Damages.

An affidavit in support of an attachment order must include a specific request for damages. A rough estimate of the value in question will not suffice. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1988 Miss. LEXIS 193 (Miss. 1988).

21. —Attorney fees, allowance of.

Where the attachment is maliciously brought, attorney’s fees cannot be awarded defendant on dismissal of the bills; not being contemplated by the statute and being recoverable as damages only after judgment in an action for malicious prosecution. Rosenbaum v. Davis & Andrews Co., 111 Miss. 278, 71 So. 388, 1916 Miss. LEXIS 286 (Miss. 1916).

Damages by way of attorneys’ fees, etc., may not be allowed in attachments in chancery, as the statute makes no provision therefor. Bonds v. L. Garvey & Co., 87 Miss. 335, 39 So. 492, 1905 Miss. LEXIS 116 (Miss. 1905).

RESEARCH REFERENCES

ALR.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

Joint Bank Account as Subject to Attachment, Garnishment, or Execution by Creditor of One Joint Depositor. 86 A.L.R.5th 527.

Am. Jur.

36 Am. Jur. Proof of Facts 2d 149, Wrongful Attachment.

CJS.

7 C.J.S., Attachment §§ 44 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

The Effect of Bankruptcy and Encumbrances on Mineral Interests in Mississippi. 53 Miss L. J. 551, December, 1983.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

§ 11-31-2. Application for order of attachment; determination.

  1. Upon the filing of the bill of complaint, the complainant may apply for an order of attachment by presenting to the chancellor the bill, and an affidavit which shall include the following:
    1. A statement that the action is one described in Section 11-31-1, and is brought against a defendant described in said Section 11-31-1.
    2. A detailed statement of the facts and grounds which entitle the complainant to an order of attachment including a statement of the specific reasons why the complainant’s ability to recover the amount of his claim may be endangered or impeded if the order of attachment is not issued.
    3. A statement of the amount the plaintiff seeks to recover.
    4. A statement that the complainant has no information or belief that the claim is discharged in a proceeding under the Federal Bankruptcy Act (11 U.S.C., Section 1, et seq.), or that the prosecution is stayed in a proceeding under the Federal Bankruptcy Act.
    5. A description of the property to be attached under the writ of attachment and a statement that the complainant is informed and believes that such property is not exempt from attachment or seizure under Section 85-3-1.
    6. A listing of other persons known to the complainant who may have an interest in the property sought to be attached together with a description of such interest.
  2. The chancellor shall examine the affidavit and bill of complaint and may, in term time or in vacation, issue an order of attachment with respect to such property under the following conditions:
    1. The chancellor finds that unless the order of attachment is issued, the complainant’s ability to recover the amount of his claim may be significantly impaired or impeded.
    2. The chancellor finds that the affidavit establishes a prima facie case demonstrating the complainant’s right to recover on his claim against the defendant.
    3. The complainant gives security in an amount satisfactory to the chancellor to abide further orders of the court and to protect the defendant from injury should the action of attachment be judicially determined to have been wrongfully brought.
    1. If such an order of attachment is issued, the defendant shall, upon request, be entitled to an immediate post-seizure hearing to seek dissolution of the order of attachment. Such post-seizure hearing shall have precedence on the docket of the chancery court over all other matters except similar matters previously filed. At such hearing, the chancellor shall order dissolution of the order of attachment unless the complainant establishes by satisfactory proof the grounds upon which the order was issued, including the existence of a claim as described in Section 11-31-1, and the impairment or impediment which a failure to continue the attachment could bring to the complainant’s ability to recover the amount of such debt. An appearance by the defendant at the post-seizure hearing shall be considered a special appearance and not a general appearance for purposes of personal jurisdiction over the defendant.
    2. In the alternative, a debtor may regain immediate possession of the property attached by giving security satisfactory to the chancellor in an amount equal to one hundred twenty-five percent (125%) of the value of the property attached or one hundred twenty-five percent (125%) of the amount of the claim, whichever is less.
    3. If the chancellor should determine that the attachment was not brought in good faith, then the chancellor in his discretion may award actual damages (including reasonable attorney’s fees) to the defendant.

HISTORY: Laws, 1980, ch. 467, § 1, eff from and after July 1, 1980.

Cross References —

Jurisdiction of chancery court, see §11-31-1.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Validity.

1. In general.

State statute authorizing pre-judgment ex parte attachment of realty, without bond and absent exigent circumstances, violated due process clause, as applied, since (1) property interests affected were significant, (2) risk of erroneous deprivation of due process was substantial, (3) post-deprivation safeguards did not adequately reduce risk of such error, (4) interests in favor of ex parte attachment were too minimal to obviate need for pre-deprivation hearing, (5) state’s substantive interest in protecting rights of plaintiff could not be more weighty than plaintiff’s interest, (6) remedy of attachment historically was predicated on some circumstances not here present, and (7) only Connecticut allowed such procedure. Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1, 1991 U.S. LEXIS 3317 (U.S. 1991).

An affidavit in support of an attachment order must include a specific request for damages. A rough estimate of the value in question will not suffice. Anderson v. Sonat Exploration Co., 523 So. 2d 1024, 1988 Miss. LEXIS 193 (Miss. 1988).

Attachment should be dissolved, where no substantial impairment or impediment would accrue to insured by failure to maintain attachment over insurance company’s property. Woodmen of World Life Ins. Soc. v. Leitaker, 703 F. Supp. 1245, 1988 U.S. Dist. LEXIS 15441 (S.D. Miss. 1988).

Mississippi Rule of Civil Procedure 64, regulating procedural aspects of attachment suit, requires that procedural requirements of §11-31-2 be met. Universal Computer Services, Inc. v. Lyall, 464 So. 2d 69, 1985 Miss. LEXIS 1901 (Miss. 1985).

Mississippi Attachment Statute (§§11-31-1 et seq.) is not unconstitutional notwithstanding defendant’s contentions that (1) it fails to require nexus between property attached and underlying claim, (2) it does not provide for pre-seizure notice or pre-seizure hearing, (3) it prohibits defendant from making limited appearance to defend his claim to property attached, (4) its bond requirements are unfair and discriminatory as to attached defendant, and (5) it is silent as to future accruing debts. Estate of Portnoy v. Cessna Aircraft Co., 603 F. Supp. 285, 1985 U.S. Dist. LEXIS 22471 (S.D. Miss. 1985).

2. Validity.

Inclusion of safeguards to minimize the risk of an erroneous pre-hearing deprivation, coupled with the availability of an immediate post-attachment hearing to dissolve the attachment, met the demands of due process; the Mississippi statute required that the complainant set forth the specific facts supporting his claim and permitted an order of attachment to issue only if the chancellor found the complainant had established a prima facie case demonstrating his right to recover on his claim, the Mississippi statute required that the complainant state specific reasons why his ability to recover on his claim was at risk if the order of attachment was not issued, and attachment was only available if the chancellor found that the complainant’s ability to recover could be significantly impaired or impeded without an order of attachment, and the Mississippi procedure mandated that the complainant put up a bond to protect the defendant in the event the attachment was later found to have been wrongful. Performance Drilling Co., LLC v. H & H Welding, LLC, 2009 U.S. Dist. LEXIS 32190 (S.D. Miss. Apr. 15, 2009).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 191 et seq.

2B Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Form 513 (motion – to dissolve set aside and vacate order granting ex parte attachment).

CJS.

7 C.J.S., Attachment §§ 96, 97, 101 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-31-3. Attaching property or indebtedness.

When a bill shall be filed for an attachment of the effects of a nonresident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of persons in this state to such nonresident, absent or absconding debtor, it shall be sufficient to bind such effects or indebtedness that the order of attachment together with a copy of the bill of complaint and affidavit be served upon the persons possessing such effects or owing such indebtedness.

HISTORY: Codes, 1880, § 1898; 1892, § 487; 1906, § 537; Hemingway’s 1917, § 294; 1930, § 174; 1942, § 2730; Laws, 1980, ch. 467, § 2, eff from and after July 1, 1980.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

3. Nonresident.

4. Persons entitled.

5. Property subject.

6. Lien.

7. Judgment.

1. In general.

Mississippi Attachment Statute (§§11-31-1 et seq.) is not unconstitutional notwithstanding defendant’s contentions that (1) it fails to require nexus between property attached and underlying claim, (2) it does not provide for pre-seizure notice or pre-seizure hearing, (3) it prohibits defendant from making limited appearance to defend his claim to property attached, (4) its bond requirements are unfair and discriminatory as to attached defendant, and (5) it is silent as to future accruing debts. Estate of Portnoy v. Cessna Aircraft Co., 603 F. Supp. 285, 1985 U.S. Dist. LEXIS 22471 (S.D. Miss. 1985).

That Code commissioners moved statute from one chapter to another did not change statute. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Garnishment statutes held inapplicable to attachments in chancery, except as otherwise provided by statute. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

Attachment statutes held inapplicable to attachments in chancery except as otherwise provided by statute. Craig v. Gaddis, 171 Miss. 379, 157 So. 684, 1934 Miss. LEXIS 249 (Miss. 1934).

2. Jurisdiction.

Service of a writ of attachment on a railroad’s station agent is sufficient to bind the money and effects of the company in his hands at the time. Illinois C. R. Co. v. McDaniel, 246 Miss. 600, 151 So. 2d 805, 1963 Miss. LEXIS 486 (Miss. 1963).

Words “persons in this State” mean persons residing in this State, and process on nonresidents temporarily residing in State does not give court jurisdiction over them. Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571, 1938 Miss. LEXIS 109 (Miss. 1938).

Chancery court of county in which attachment suit was filed against domestic bank, which bill alleged was domiciled in another county, and foreign bank, to which garnished domestic corporation, domiciled in another county, was alleged to be indebted, to recover amount of check on ground of banks’ negligence in collection thereof, had no territorial jurisdiction of domestic bank, between which and garnishee there was neither privity nor connection. Estes v. Bank of Walnut Grove, 172 Miss. 499, 159 So. 104, 1935 Miss. LEXIS 107 (Miss. 1935).

Court, by personal service on agent of foreign corporation doing business in this State, acquired jurisdiction of corporation, garnishee in suit by non-resident employee-creditor, and could require answer and condemn any indebtedness due by corporation to its employee-creditor under employment contract made and performable outside State. Bean v. Bean, 166 Miss. 434, 147 So. 306, 1933 Miss. LEXIS 367 (Miss. 1933).

If the garnishee be personally served with process in this state, the court acquires jurisdiction over him and can garnish the debt due the debtor of plaintiff and condemn it, provided the garnishee could himself be sued by his creditors in this state, regardless of the original situs of the debt outside of the state. Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (Miss. 1911).

Where complainant fails to show that there was any property belonging to defendant in the hands of the third party when the attachment was served, the court obtained no jurisdiction to entertain the suit and order a statement of accounts. Louis Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876, 1906 Miss. LEXIS 91 (Miss. 1906).

An attachment was sued out against a resident debtor and his non-resident vendee of a stock of goods, the bill alleging the sale to be fraudulent and seeking to hold him for their value. The court retained jurisdiction against objection that the vendee’s liability, if any, was not such a debt as would support an attachment against him. The Supreme Court declined to pass upon the question because of the inhibition of § 147 of the Constitution. Barrett v. Carter, 69 Miss. 593, 13 So. 625, 1891 Miss. LEXIS 137 (Miss. 1891).

3. Nonresident.

Where foreign corporations were doing business in Alabama, Tennessee and Mississippi, the foreign corporations were persons within the meaning of attachment statutes and they themselves could sue in the state and they are liable to be sued or proceeded against, by attachment or otherwise, as individual nonresident debtors may be sued or proceeded against. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

One who resides in Mississippi becomes a nonresident thereof, within the meaning of the statute, when he removes therefrom, intending to remain out permanently, or for a definite period of time, although he frequently and continuously visits the state and remains there for short intervals of time, and therefore an attachment against such a person should not be quashed, on the ground that he is a resident. Bonds v. Ross, 192 Miss. 610, 7 So. 2d 554, 1942 Miss. LEXIS 65 (Miss. 1942).

Place of its creation ordinarily determines residence of corporation within the meaning of attachment statute; foreign corporations doing business in the state under laws thereof will be deemed “nonresident” within attachment statute. Central Western Development Co. v. Lewis, 142 Miss. 428, 107 So. 557, 1926 Miss. LEXIS 100 (Miss. 1926).

4. Persons entitled.

One having an equitable interest in a shipment of flour for his profits on the sale thereof, held entitled to attach the proceeds of the sale in the hands of a local bank, where both the buyer and seller are non-residents. Regina Flour Mills Co. v. Lehmann, 117 Miss. 575, 78 So. 515, 1918 Miss. LEXIS 199 (Miss. 1918).

5. Property subject.

Order of attachment issued by chancellor, purporting to bind property, effects, and money in hands of co-defendants owned by or owed to nonresident defendant airplane manufacturer, subjecting any such property or indebtedness now or hereafter owned by or owing to airplane manufacturer to demand of complainant, is impermissible under Mississippi statute and must be modified to bind only that property or indebtedness existing at time writ of attachment was served and any subsequent property or indebtedness owned by or owing to airplane manufacturer up to time respective defendants’ answers were filed, or if no answer was filed, until 30 days after service was rendered. Estate of Portnoy v. Cessna Aircraft Co., 603 F. Supp. 285, 1985 U.S. Dist. LEXIS 22471 (S.D. Miss. 1985).

The automobile of a nonresident may be attached in an action for damages caused by a collision in which it was involved. Associates Discount Corp. v. Clark, 240 Miss. 723, 128 So. 2d 535, 1961 Miss. LEXIS 503 (Miss. 1961).

What “effects” bound in hands of resident defendant stated. The word “effects” is broader in signification than the word “goods” and it covers all kinds of personal property. Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 1921 Miss. LEXIS 46 (Miss. 1921).

Agent may attach property sold for commission but cannot attach property for seller’s debt; attachment fails where buyer was garnished after paying purchase money. Slattert v. P. L. Renoudet Lumber Co., 125 Miss. 229, 87 So. 888, 1921 Miss. LEXIS 130 (Miss. 1921).

6. Lien.

The attachment of the property of a nonresident creates a lien which attaches when the writ is served. Associates Discount Corp. v. Clark, 240 Miss. 723, 128 So. 2d 535, 1961 Miss. LEXIS 503 (Miss. 1961).

Lien exists only when property seized; lien does not relate back to filing of bill. Slattert v. P. L. Renoudet Lumber Co., 125 Miss. 229, 87 So. 888, 1921 Miss. LEXIS 130 (Miss. 1921).

7. Judgment.

A decree determining the merits of a cross bill against a defendant and favorably to a complainant which was a bank of another State was res judicata of such defendant’s suit against bank commissioner of such other State under original and supplemental bills alleging facts set up in such cross bill, where court, at time of first suit, had same power sought to be invoked in second suit. Brock v. Adler, 180 Miss. 118, 177 So. 523, 1987 Miss. LEXIS 2986 (Miss. 1987).

If defendant is a non-resident and the res is within the territorial jurisdiction of the court and is brought into court by attachment or garnishment, the court may render a judgment in rem. Delta Ins. & Realty Co. v. Interstate Fire Ins. Co., 113 Miss. 542, 74 So. 420, 1917 Miss. LEXIS 131 (Miss. 1917).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 191 et seq.

CJS.

7 C.J.S., Attachment §§ 45–49 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-31-5. Levy on land.

If the land of the nonresident, absent or absconding debtor be the subject of such suit, and an order of attachment be issued, the order shall be levied by the sheriff or other officer as such writs of law are required to be levied on land, and shall have like effect.

HISTORY: Codes, 1880, § 1889; 1892, § 488; 1906, § 538; Hemingway’s 1917, § 295; 1930, § 175; 1942, § 2731; Laws, 1980, ch. 467, § 3, eff from and after July 1, 1980.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

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, 1904, and this section [Code 1942, § 2731] 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).

RESEARCH REFERENCES

CJS.

7 C.J.S., Attachment §§ 111 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-31-7 Writs of sequestration for personal property.

Writs of sequestration may be issued for personal property in such cases as in others.

HISTORY: Codes, 1880, § 1900; 1892, § 489; 1906, § 539; Hemingway’s 1917, § 296; 1930, § 176; 1942, § 2732.

Cross References —

Writ of sequestration, see §11-29-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-31-9. Publication for appearance of defendant.

The nonresident, absent or absconding debtor shall be made a party to such suit by publication of summons as in other cases, and may appear and plead, demur or answer to the bill without giving security. If such debtor fails to appear, the court shall have power to make any necessary orders to restrain the defendants within this state from paying, conveying away or secreting the debts by them owing, or the effects in their hands belonging to, the nonresident, absent or absconding defendant, and may order such debts to be paid or such effects to be delivered to the complainant on his giving security for the return thereof in such manner as the court may direct.

HISTORY: Codes, 1857, ch. 62, art. 61; 1880, § 1901; 1892, § 490; 1906, § 540; Hemingway’s 1917, § 297; 1930, § 177; 1942, § 2733; Laws, 1980, ch. 467, § 4, eff from and after July 1, 1980.

Cross References —

Publication of notice in attachment cases, see §11-33-37 et seq.

Defendant defending suit without replevying property, see §11-33-81.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Service of process on the station agent of a foreign railroad company is sufficient without publication in a newspaper. 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 a chancery court under Code 1942, § 2729 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 or property in the hands of a Mississippi corporation, where the plaintiff did not get process by publication of summons on the nonresident defendant as required by this section, but relied solely on the attempted personal service executed on an employee, who was not such an agent of defendant upon whom process could be served, the chancellor committed reversible error in overruling defendant’s motion to dismiss for want of jurisdiction, even though the Mississippi corporation had answered admitting an indebtedness due to the defendant. Alabama, T. & N. R. Co. v. Howell, 244 Miss. 157, 141 So. 2d 242, 1962 Miss. LEXIS 433 (Miss. 1962).

Attachment of real property within the state belonging to nonresident automobile owner held to confer jurisdiction to determine rights of the beneficiary of a deed of trust thereon, against a garnished nonresident insurer of the automobile against theft, though the nonresident automobile owner was not served by publication with notice of the suit. Coahoma County Bank & Trust Co. v. Feinberg, 241 Miss. 381, 128 So. 2d 562, 1961 Miss. LEXIS 359 (Miss. 1961).

Seizure of automobile of nonresident owner under writ of sequestration to enforce mechanic’s lien for labor performed on such automobile, wherein nonresident credit company was described as having some interest in the subject matter and served by publication, court was without jurisdiction to order a sale of the property, where nonresident debtor had no property in the state or in the hands of residents of the state, there was no showing as to threatened removal, concealment or transfer, and no security was given to abide the further orders of the court for restoring the property to the absent defendant on his appearing and answering the bill within two years. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Nonresident defendants, whose post-office addresses were not shown by proof of publication of notices to them, were not in court, which had no power to render judgment or apply testimony against them. Sellers v. Powell, 168 Miss. 682, 152 So. 492, 1934 Miss. LEXIS 379 (Miss. 1934).

In order to maintain an attachment in chancery, the nonresident debtor must be made a party by publication of summons as in other cases, and, therefore, allegation that principal defendant was Louisiana corporation with principal place of business in New Orleans held not to authorize decree pro confesso. Commercial Credit Co. v. Cook, 164 Miss. 725, 143 So. 863, 1932 Miss. LEXIS 227 (Miss. 1932).

Statute requiring publication of notices to nonresidents of action against them must be strictly complied with to confer jurisdiction on State court. Commercial Credit Co. v. Cook, 164 Miss. 725, 143 So. 863, 1932 Miss. LEXIS 227 (Miss. 1932); Sellers v. Powell, 168 Miss. 682, 152 So. 492, 1934 Miss. LEXIS 379 (Miss. 1934).

Appearance of nonresident defendant for sole purpose of removal was not such appearance that when cause was remanded, defendant was in state court without necessity of valid process. McCoy v. Watson, 153 Miss. 416, 121 So. 116, 1929 Miss. LEXIS 35 (Miss. 1929).

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-31-11. Complainant to give security after decree rendered.

If a decree be rendered in such case without the appearance of the absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made, for restoring of the estate or effects to the absent defendant, on his appearing and answering the bill within two years; and if the complainant shall not give such security, the effects shall remain under the direction of the court, in the hands of a receiver, or otherwise, for such time, and shall then be disposed of as the court may direct.

HISTORY: Codes, 1857, ch. 62, art. 62; 1880, § 1902; 1892, § 491; 1906, § 541; Hemingway’s 1917, § 298; 1930, § 178; 1942, § 2734.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

In attachment suit against absent nonresident debtor, order of court, directing clerk to deliver contents of defendant’s safety deposit box to bank, need not provide that this should not be done until security be given for abiding such further orders as may be made for restoring of the estate to the absent defendant, but such security must be required by the clerk under this section [Code 1942, § 2734] before he so delivers the property. Jackson State Nat'l Bank v. Polk, 35 So. 2d 430, 1948 Miss. LEXIS 422 (Miss. 1948).

Complainant in suit to enforce mechanic’s lien in which nonresident credit company was served by publication was not entitled to have the property sold to satisfy its lien without having given security for abiding such further orders as might be made, for restoring the property to the absent defendant on his appearing and answering the bill within two years. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Seizure of automobile of nonresident owner under writ of sequestration to enforce mechanic’s lien for labor performed on such automobile, wherein nonresident credit company was described as having some interest in the subject matter and served by publication, court was without jurisdiction to order a sale of the property, where nonresident debtor had no property in the state or in the hands of residents of the state, there was no showing as to threatened removal, concealment or transfer, and no security was given to abide the further orders of the court for restoring the property to the absent defendant on his appearing and answering the bill within two years. Universal Credit Co. v. Linn Motor Co., 195 Miss. 565, 15 So. 2d 44, 15 So. 2d 694, 1943 Miss. LEXIS 135 (Miss. 1943).

Where decree is rendered against nonresident defendant on publication only, without appearance, refunding bond required by this section [Code 1942, § 2734] must be then given before any proceedings to enforce and satisfy decree and sale without it is void. Seay v. Wofford, 141 Miss. 888, 106 So. 751, 1926 Miss. LEXIS 443 (Miss. 1926).

Bond not required of complainant before issuance of attachment in chancery. I. B. Rowell & Co. v. Sandifer, 129 Miss. 167, 91 So. 899, 1922 Miss. LEXIS 32 (Miss. 1922).

An execution issued before the security required is given is void and sale thereunder passes no title. Carter v. Brandy, 71 Miss. 240, 15 So. 790, 1893 Miss. LEXIS 207 (Miss. 1893).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 456, 458 et seq.

CJS.

7 C.J.S., Attachment § 138 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

Chapter 33. Attachment at Law Against Debtors

§ 11-33-1. Application.

The remedy by attachment shall apply to all actions or demands founded upon any indebtedness, or for the recovery of damages for the breach of any contract, express or implied, and to actions founded upon any penal statutes.

HISTORY: Codes, 1857, ch. 52, art. 1; 1871, § 1419; 1880, § 2414; 1892, § 125; 1906, § 129; Hemingway’s 1917, § 121; 1930, § 119; 1942, § 2675.

Cross References —

Remedial writs grantable by Supreme Court and circuit judges and chancellors, see §9-1-19.

Remedial orders in actions in which the right to real or personal property is in controversy, see §11-7-169.

Proceedings in replevin, attachment, and enforcement of statutory liens before justices of the peace, see §11-9-135.

Writ of sequestration, see §11-29-1 et seq.

Attachments against debtors in chancery court, see §11-31-1 et seq.

Summoning of creditor of judgment debtor in garnishment proceeding, see §11-35-3.

Authority of an airport authority to attach the equipment of debtors of the authority, see §61-3-15.

Exemption of income or principal from an employee trust plan, see §71-1-43.

Attachment of goods covered by negotiable document, see §75-7-602.

Attachment of collateral subject to security interest, see §75-9-501.

Exempt personal property, see §85-3-1.

Nonresident or unknown parties in lien cases, see §85-7-33.

Apportionment of rent, see §89-7-9 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

State statute authorizing pre-judgment ex parte attachment of realty, without bond and absent exigent circumstances, violated due process clause, as applied, since (1) property interests affected were significant, (2) risk of erroneous deprivation of due process was substantial, (3) post-deprivation safeguards did not adequately reduce risk of such error, (4) interests in favor of ex parte attachment were too minimal to obviate need for pre-deprivation hearing, (5) state’s substantive interest in protecting rights of plaintiff could not be more weighty than plaintiff’s interest, (6) remedy of attachment historically was predicated on some circumstances not here present, and (7) only Connecticut allowed such procedure. Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1, 1991 U.S. LEXIS 3317 (U.S. 1991).

The statutory scheme providing for attachment at law against debtors was constitutionally deficient where it made no provision for pre-attachment notice or hearing, where writs of attachment could be authorized by a nonjudicial officer, and where it failed to provide defendants with an immediate post-seizure hearing; as a matter of fairness and justice, sums owed the principal defendant by nonresident attachment defendants arising out of transactions having no connection with Mississippi would be excluded from garnishment. Mississippi Chemical Corp. v. Chemical Constr. Corp., 444 F. Supp. 925, 1977 U.S. Dist. LEXIS 18154 (S.D. Miss. 1977).

Georgia statutes authorizing garnishment of property other than wages in pending suits, but not providing for notice, hearing, or participation by judicial officer, held violative of due process clause of Fourteenth Amendment. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751, 1975 U.S. LEXIS 24 (U.S. 1975).

Where defendant traded to the plaintiff two automobiles he knew to be stolen property and also by bill of sale the defendant expressly warranted the title to the property, and the automobiles, so traded to plaintiffs, were repossessed by the original owners, the obligation was fraudulently contracted and furnished sufficient ground for attachment of defendant’s property. Davis v. Shemper, 210 Miss. 201, 49 So. 2d 253, 1950 Miss. LEXIS 338 (Miss. 1950).

An attachment will lie for unliquidated damages arising out of a contract. John E. Hall Com. Co. v. R. L. Crook & Co., 87 Miss. 445, 40 So. 20, 1905 Miss. LEXIS 99 (Miss. 1905).

Where a foreign corporation sold grain to a domestic partnership and delivered grain of a quality inferior to that contracted for, the purchaser’s demand for damages became due immediately upon the delivery of the grain and the payment of the agreed price, and hence the purchaser was entitled to sue out an attachment at that time. John E. Hall Com. Co. v. R. L. Crook & Co., 87 Miss. 445, 40 So. 20, 1905 Miss. LEXIS 99 (Miss. 1905).

Wherever assumpsit will lie for the breach of an implied contract the case is within the statute. Nethery v. Belden, 66 Miss. 490, 6 So. 464, 1889 Miss. LEXIS 134 (Miss. 1889).

Whenever assumpsit will lie for the breach of an implied contract, attachments may be maintained to recover damages therefor, although the breach of the contract may be tortious. Nethery v. Belden, 66 Miss. 490, 6 So. 464, 1889 Miss. LEXIS 134 (Miss. 1889).

An attachment will lie to recover for a breach of warranty. Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 1887 Miss. LEXIS 6 (Miss. 1887).

A county can sue out an attachment. State use of Lawrence County v. Fortinberry, 54 Miss. 316, 1877 Miss. LEXIS 4 (Miss. 1877).

The attachment law applies to transactions occurring before its adoption as well as afterward. Green v. Anderson & Hilzheim, 39 Miss. 359, 1860 Miss. LEXIS 58 (Miss. 1860).

The remedy does not extend to actions ex delicto. J. B. Fellows & Co. v. Brown, 38 Miss. 541, 1860 Miss. LEXIS 24 (Miss. 1860).

In order to entitle a party to an attachment, he must have a present subsisting debt or demand; a mere surety cannot attach. Henderson, Terry & Co. v. Thornton, 37 Miss. 448, 1859 Miss. LEXIS 36 (Miss. 1859).

RESEARCH REFERENCES

ALR.

What is an action for “debt” within attachment or garnishment statute. 12 A.L.R.2d 787.

Attachment in alienation of affections or criminal conversation case. 67 A.L.R.2d 527.

Reformation of deed or mortgage as against intervening rights of attaching judgment creditor. 79 A.L.R.2d 1180.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property. 18 A.L.R. Fed. 223.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 31, 32, 35 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Forms 1 et seq.

2 Am. Jur. Proof of Facts, Attachment, Proof No. 1 (wrongful attachment).

CJS.

7 C.J.S., Attachment §§ 16 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings-Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-33-3. Suit against one or more debtors among joint debtors.

The creditor may sue out an attachment against one or more of joint debtors or joint and several debtors, whether primarily or secondarily liable, without affecting his rights as against the others.

HISTORY: Codes, 1892, § 126; 1906, § 130; Hemingway’s 1917, § 122; 1930, § 120; 1942, § 2676.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

An indorser of a note cannot in an action against himself and the maker, in which an attachment has been issued on the ground of nonresidence, file a plea in abatement setting up that the maker was a resident when the attachment was issued. Timberlake v. Thayer, 16 So. 878 (Miss. 1895).

This section [Code 1942, § 2676] is useless except to declare the law as existing independently of it. Cohen v. Gamble, 71 Miss. 478, 15 So. 236, 1893 Miss. LEXIS 103 (Miss. 1893).

The attachment may be against one debtor and the declaration in the cause be against several, provided the debt owing by the debtors not attached be due when the declaration is filed against them. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

RESEARCH REFERENCES

ALR.

Joint Bank Account as Subject to Attachment, Garnishment, or Execution by Creditor of One Joint Depositor. 86 A.L.R.5th 527.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment § 168.

CJS.

7 C.J.S., Attachment §§ 25, 26, 266–269.

§ 11-33-5. Attachment against partners.

In case one or more partners shall be liable to attachment on any of the enumerated grounds therefor, save the first, an attachment may be maintained against said partner, or all of the partners, by the partnership creditors. The property of the partnership, in either case, may be levied on and dealt with in all respects as if the grounds of attachment existed as to all the partners. The effects levied upon may be replevied by the partners sued by giving bond as other defendants in attachments, or, if they fail to do so, any partner not sued therein may replevy the same in like manner; but, by doing so, such partner shall thereby become a party defendant to the suit for all purposes, and judgment may be rendered on his bond against the obligors therein as in other attachment cases.

HISTORY: Codes, 1892, § 127; 1906, § 131; Hemingway’s 1917, § 123; 1930, § 121; 1942, § 2677.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

An attachment may be maintained by firm creditors against all members of a partnership on removal of one partner out of state. American Oil Co. v. H. Booth Lumber Co., 137 Miss. 404, 102 So. 262, 1924 Miss. LEXIS 220 (Miss. 1924).

Where one or more of the partners reside in this state, attachment cannot be sustained on ground of nonresidence. Barney & Hines v. Moore-Haggerty Lumber Co., 95 Miss. 118, 48 So. 232, 1909 Miss. LEXIS 199 (Miss. 1909).

This section [Code 1942, § 2677] is an enabling act and does not abridge any right; hence it does not hinder a creditor of a partnership from attaching on the ground of nonresidence the property of any member of the partnership, the right to do so existing by virtue of Code 1892, § 2353 (Code 1906 § 2683). Cohen v. Gamble, 71 Miss. 478, 15 So. 236, 1893 Miss. LEXIS 103 (Miss. 1893).

RESEARCH REFERENCES

ALR.

Residence of partnership for purposes of statutes authorizing attachment or garnishment on ground of nonresidence. 9 A.L.R.2d 471.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 168, 185.

CJS.

7 C.J.S., Attachment § 51.

§ 11-33-7. Attachments against nonresidents jointly indebted.

When two or more persons, not residing in this state, are jointly indebted, the writ of attachment may be issued against such debtors, or any of them, by their proper names or by the name of the partnership, or by whatever other names such debtors may be called or known in this state, or against the executors or administrators of them or any or either of them, and may be levied upon the separate or joint estate or both of such debtors, and the lands, tenements, money, goods, chattels, effects, rights and credits of such debtors, or any or either of them, which shall be liable to be seized and taken for the satisfaction of any debt or demand for which an attachment will lie.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (12); 1857, ch. 52, art. 5; 1871, § 1431; 1880, § 2420; 1892, § 128; 1906, § 132; Hemingway’s 1917, § 124; 1930, § 122; 1942, § 2678.

Cross References —

Attachments in chancery court, see §11-31-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Residence of partnership for purposes of statutes authorizing attachment or garnishment on ground of nonresidence. 9 A.L.R.2d 471.

§ 11-33-9. Grounds for attachment—affidavit.

The creditor, his agent or attorney, shall make oath before a judge of the supreme court, a judge of a circuit court, or a chancellor, or before a clerk of the circuit court or chancery court or the deputy of such clerk, or any justice court judge, or the mayor of any city, town or village, of the amount of his debt or demand, to the best of his knowledge and belief, and shall also make oath, to the best of his knowledge and belief, to one or more of the following grounds for attachment:

  1. That the defendant is a foreign corporation, or a nonresident of this state; or
  2. That he has removed, or is about to remove, himself or his property out of this state; or
  3. That he so absconds or conceals himself that he cannot be served with a summons; or
  4. That he contracted the debt or incurred the obligation in conducting the business of a ship, steamboat or other watercraft in some of the navigable waters of this state; or
  5. That he has property or rights in action which he conceals, and unjustly refuses to apply to the payment of his debts; or
  6. That he has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with the intent to defraud his creditors; or
  7. That he has converted, or is about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors; or
  8. That he fraudulently contracted the debt or incurred the obligation for which suit has been or is about to be brought; or
  9. That he is buying, selling, or dealing in, or has, within six (6) months next before the suing out of the attachment, directly or indirectly bought, sold, or dealt in future contracts, commonly called “futures”; or
  10. That he is in default for public money, due from him as a principal, to the state, or some county, city, town, or village thereof; or
  11. That defendant is a banker, banking company or corporation, and received deposits of money knowing at the time he or it was insolvent; or has made or published a false or fraudulent statement as to his or its financial condition; or
  12. That a judgment lien under Title 93, Mississippi Code of 1972, has been enrolled against said obligor for nonpayment of an order for support as defined by Section 93-11-101, Mississippi Code of 1972, as amended.

HISTORY: Codes, Hutchinson’s 1848, ch. 56 art. 4 (6); 1857, ch. 52, art. 2; 1871, §§ 1420 et seq; 1880, § 2413; 1892, § 129; 1906, § 133; Hemingway’s 1917, § 125; 1930, § 123; 1942, § 2679; Laws, 1997, ch. 588, § 132, eff from and after July 1, 1997.

Cross References —

Remedial writs grantable by supreme and circuit judges and chancellors, see §9-1-19.

Powers of county judge to issue writs, see §9-9-23.

Creditors attacking fraudulent conveyances, see §11-5-75.

Removals of public officers generally, see §25-5-1 et seq.

Rights of creditors in cases of assignment for the benefit of creditors, see §85-1-11 et seq.

Disposal of exempt property, see §85-3-49.

Enforceable and unenforceable future contracts, see §§87-1-9 through87-1-27.

Dealing in futures, see §§87-1-31,87-1-33.

Receiving deposits when bank is insolvent, see §97-19-47.

Penalty for receiving deposits when bank is insolvent, see §97-19-47.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Affidavit generally.

2. —Where, and before whom, made.

3. —By agent.

4. —Failure to sign.

5. —Amendability.

6. Transfers while insolvent.

7. Defendant a foreign corporation, or nonresident.

8. Removal, or impending removal of property from state.

9. Concealment of property.

10. Assignment or disposal of property with intent to defraud creditors.

11. Fraudulently contracted debt for which suit is about to be brought.

12. Dealing in futures.

13. Miscellaneous.

1. Affidavit generally.

But an affidavit which stated the second ground for attachment in the disjunctive in the language of the statute, was not defective. Helton v. McLeod & Dantzler, 93 Miss. 516, 46 So. 534, 1908 Miss. LEXIS 89 (Miss. 1908).

Whether a paper, in form of an affidavit, is really one is not determinable by what either of the parties considered in reference to it, but by the inquiry whether anything was done which could properly be construed as taking or administering an oath. Carlisle v. Gunn, 68 Miss. 243, 8 So. 743, 1890 Miss. LEXIS 63 (Miss. 1890).

It is erroneous to state several causes for attachment in the affidavit disjunctively. Bishop Bros. v. Fennerty, 46 Miss. 570, 1872 Miss. LEXIS 26 (Miss. 1872).

An affidavit which recites the reasons of affiant’s belief of the existence of the grounds of attachment is not because of the recitals invalid. Spear v. King, 14 Miss. 276, 1846 Miss. LEXIS 64 (Miss. 1846).

It is unnecessary for the affidavit to be in the exact language of the statute; substantial compliance is sufficient. Wallis v. Wallace, 7 Miss. 254, 1842 Miss. LEXIS 30 (Miss. 1842).

2. —Where, and before whom, made.

The clerk of the circuit court of one county is authorized under this section [Code 1942, § 2679], and § 134, Code 1906, to take affidavit, approve bond, and issue a writ in attachment, returnable to the circuit court of another county. Meridian Fertilizer Factory v. Edwards, 77 Miss. 697, 27 So. 645 (Miss. 1900).

An affidavit made before, and a writ issued by one who, though ineligible to an appointment as deputy because of minority, acts as deputy circuit clerk and is generally recognized by the public as such, is not void, he being a de facto officer. Wimberly v. Boland, 72 Miss. 241, 16 So. 905, 1894 Miss. LEXIS 121 (Miss. 1894).

The affidavit may be made in another state and before a commissioner for this state; the statute does not require that the writ of attachment shall be issued by the officer before whom the affidavit is made. Griffing v. Mills, 40 Miss. 611, 1866 Miss. LEXIS 102 (Miss. 1866).

3. —By agent.

It is unnecessary for the agent who makes the affidavit to affirm therein that he is agent; the certificate of the officer to that effect is sufficient evidence of the fact. Lindner v. Aaron & Nelson, 6 Miss. 581, 1841 Miss. LEXIS 40 (Miss. 1841).

4. —Failure to sign.

A creditor asked a justice of the peace to prepare papers for an attachment against his debtor, telling him the amount of the debt and the grounds of attachment; the justice wrote an affidavit, bond, and writ, and handed them to him, asking “If that was all right,” and the creditor answered that it was. The affidavit was not signed, and the oath was not administered or attempted to be administered. Held: There was no affidavit, and the levy based thereon was invalid, and a subsequent amendment could not validate the proceedings so as to affect intervening rights. Carlisle v. Gunn, 68 Miss. 243, 8 So. 743, 1890 Miss. LEXIS 63 (Miss. 1890).

The affidavit is not invalid because not signed by the affiant. Redus v. Wofford, 12 Miss. 579, 1845 Miss. LEXIS 35 (Miss. 1845).

5. —Amendability.

Affidavit for attachment may be amended on motion to quash writ. Greenwood Grocery Co. v. Bennett, 101 Miss. 573, 58 So. 482, 1912 Miss. LEXIS 13 (Miss. 1912); McSwain v. Cephus, 109 Miss. 368, 69 So. 178, 1915 Miss. LEXIS 166 (Miss. 1915).

The trial court may permit an amendment so as to allege fully the grounds for attachment, which were only alleged in part in the original affidavit. Helton v. McLeod & Dantzler, 93 Miss. 516, 46 So. 534, 1908 Miss. LEXIS 89 (Miss. 1908).

Where the affidavit and writ allege a debt due but the declaration is for a debt in part not due, plaintiff is entitled to amend the affidavit and writ by inserting the amount not due and dismissing as to the part due, the ground of attachment being applicable to either. Dalsheimer v. McDaniel, 69 Miss. 339, 12 So. 338, 1891 Miss. LEXIS 112 (Miss. 1891); Weissinger v. Studebaker Bros. Mfg. Co., 73 Miss. 480, 18 So. 915, 1895 Miss. LEXIS 106 (Miss. 1895).

6. Transfers while insolvent.

The insolvent debtor, just as the solvent debtor, may honestly prosecute his business in the usual and ordinary methods, and is open to attachment only when his conduct makes him subject thereto on some one or more of the specific grounds enumerated in the statute. Weissinger v. Studebaker Bros. Mfg. Co., 73 Miss. 480, 18 So. 915, 1895 Miss. LEXIS 106 (Miss. 1895).

This provision does not preclude a debtor in insolvent or failing circumstances from giving a preference to one or more of his creditors if it be bona fide and with no intent to secure a benefit for himself. Fitzpatrick v. Flannagan, 106 U.S. 648, 1 S. Ct. 369, 27 L. Ed. 211, 1882 U.S. LEXIS 1598 (U.S. 1882).

7. Defendant a foreign corporation, or nonresident.

Evidence, including a showing that defendant had been in and out of the state since 1951, had moved his wife and family to Colorado, and purchased a home in that state, and had told a number of persons that he intended to move to Colorado, was sufficient to justify a finding that defendant was either a nonresident or was about to remove himself or his property out of the state. Dickson v. Lindsay, 234 Miss. 684, 107 So. 2d 732, 1958 Miss. LEXIS 539 (Miss. 1958).

A nonresident creditor may maintain attachment within the state against nonresident debtor. Hunt v. Gardner, 147 Miss. 374, 112 So. 7, 1927 Miss. LEXIS 281 (Miss. 1927).

The fact that a citizen of the state moves his wife and children out of the state, together with certain exempt property, but himself remains in the state with no intention of abandoning his residence here, does not constitute him a nonresident. Carr-Lowry Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849, 1926 Miss. LEXIS 362 (Miss. 1926).

A nonresident creditor may attach a debt, due by a nonresident of this state to a person in this state, in another state, although the debt is payable in Mississippi, where garnishment is authorized upon attachment proceedings is such foreign state, and the debtor resides in such state and is served with process under the laws of such state. McPherson v. Matthews, 143 Miss. 299, 108 So. 494, 1926 Miss. LEXIS 267 (Miss. 1926).

One indebted to a nonresident cannot place money on deposit in a bank in defiance of his creditor’s wishes, for the purpose of conferring jurisdiction in attachment upon the court where the bank is located. Saxony Mills v. Wagner & Co., 94 Miss. 233, 47 So. 899, 1908 Miss. LEXIS 32 (Miss. 1908).

A person is a nonresident if he is out of the state and intends to remain out of it for an indefinite period, although he may make temporary visits here and may intend to permanently return at some uncertain future time. Imperial Cotton Oil Co. v. Allen, 83 Miss. 27, 35 So. 216, 1903 Miss. LEXIS 8 (Miss. 1903).

A creditor of a nonresident corporation which has been consolidated into a new nonresident one may attach the new corporation at law and garnish a debt to the old company which has been transferred to the new one. Morrison v. American Snuff Co., 79 Miss. 330, 30 So. 723, 1901 Miss. LEXIS 75 (Miss. 1901).

Since to authorize an attachment on the ground of nonresidence the debt must be due, a plea in abatement that it was not due when suit was begun, is sufficient. Stadder v. Jacobs, 70 Miss. 429, 12 So. 444 (Miss. 1892).

One residing here, though having a domicil in another state, is not liable to attachment as a nonresident. Brown v. Crane, 69 Miss. 678, 13 So. 855, 1892 Miss. LEXIS 52 (Miss. 1892).

The test of one’s nonresidence is whether the absence is of such character and so prolonged that he cannot be served with ordinary process. Morgan v. Nunes, 54 Miss. 308, 1877 Miss. LEXIS 2 (Miss. 1877).

Domicil and residence are not convertible terms, and one having a domicil in this state may yet be a nonresident in the meaning of the law. Alston v. Newcomer & Kausler, 42 Miss. 186, 1868 Miss. LEXIS 48 (Miss. 1868).

8. Removal, or impending removal of property from state.

Ordinary business or pleasure trips outside of the state by a resident domiciled in the state, openly made, are not within the contemplation of the statute as grounds for attachment. Shelton v. Kindred, 279 So. 2d 642, 1973 Miss. LEXIS 1487 (Miss. 1973).

The mere fact that a professional interstate truckdriver had accepted employment with a firm of interstate haulers based outside of Mississippi and that he would be required by his employment to travel about the country, without more, was wholly insufficient to justify the seizure of his property by attachment. Shelton v. Kindred, 279 So. 2d 642, 1973 Miss. LEXIS 1487 (Miss. 1973).

Evidence, including a showing that defendant had been in and out of the state since 1951, had moved his wife and family to Colorado, and purchased a home in that state, and had told a number of persons that he intended to move to Colorado, was sufficient to justify a finding that defendant was either a nonresident or was about to remove himself or his property out of the state. Dickson v. Lindsay, 234 Miss. 684, 107 So. 2d 732, 1958 Miss. LEXIS 539 (Miss. 1958).

A citizen may remove exempt property out of the state or dispose of it without subjecting himself to attachment. Carr-Lowry Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849, 1926 Miss. LEXIS 362 (Miss. 1926).

Under paragraph 2, 1906 Code, § 133, a defendant has removed himself out of this state and is therefore liable to an attachment for debt when he is absent from the state with no definite intention of returning thereto. American Oil Co. v. H. Booth Lumber Co., 137 Miss. 404, 102 So. 262, 1924 Miss. LEXIS 220 (Miss. 1924).

Where an attachment is sued out against a nonresident of this state, and no personal summons is served on such nonresident or his agent, but publication is depended upon for service, a judgment cannot be rendered at the return term, and if one is entered it is void and will be reversed upon appeal. Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375, 1924 Miss. LEXIS 127 (Miss. 1924).

Mere absence from the state, coupled with the fact that the creditor does not know where the defendant is, does not authorize attachment against the defendant, if process may be served under the provisions of Code 1906 § 3926. To authorize attachment because of removal from the state, or absence from domicil, there must be an inability to serve the summons in the manner provided by law to obtain the jurisdiction of the person, and the burden of proof is on the attaching creditor to show this. Collier v. Chamblee, 136 Miss. 257, 101 So. 372, 1924 Miss. LEXIS 125 (Miss. 1924); Dent v. Jones & Pintard, 50 Miss. 265, 1874 Miss. LEXIS 54 (Miss. 1874); Morgan v. Nunes, 54 Miss. 308, 1877 Miss. LEXIS 2 (Miss. 1877); Bowers v. Ross, 55 Miss. 213, 1877 Miss. LEXIS 127 (Miss. 1877).

Evidence held insufficient to show that a merchant was about “to remove himself or his property out of this state.” Bamberger v. Merchants' & Farmers' Bank, 73 Miss. 572, 19 So. 296, 1895 Miss. LEXIS 162 (Miss. 1895).

A debtor going from this state expecting to return and leaving sufficient property accessible to creditors to pay his debts, may take money with him without subjecting himself to attachment. Philadelphia Inv. Co. v. Bowling, 72 Miss. 565, 17 So. 231, 1895 Miss. LEXIS 6 (Miss. 1895).

But if his sole property in this state consists of money and he takes it with him, though expecting to return, he may be attached, as money is subject to execution or attachment under § 3968 Code 1906. Philadelphia Inv. Co. v. Bowling, 72 Miss. 565, 17 So. 231, 1895 Miss. LEXIS 6 (Miss. 1895).

The shipment by an insolvent debtor of cotton to a commission merchant in another state, to create a fund to be drawn against in payment of such other debts as he might elect to pay other than his debt to the assignee, is a removal of property out of the state within the meaning of the statute. Crow v. Lemon & Gale Co., 69 Miss. 799, 11 So. 110, 1892 Miss. LEXIS 5 (Miss. 1892).

Under the statute subjecting to attachment one who “has removed or is about to remove his property out of the state,” a merchant though insolvent who ships cotton to his commission merchant in another state, for sale to pay a debt exceeding the value of the cotton, is not liable to attachment. Lowenstein v. Bew, 68 Miss. 265, 8 So. 674, 1890 Miss. LEXIS 58 (Miss. 1890).

To sustain an attachment on the ground that the debtor has removed, or is about to remove, his property out of the state, it is sufficient for the plaintiff to show that the defendant has removed, or is about to remove, any of his property out of the state; and then it devolves on the defendant to show, if he can, that he has other ample, visible property to satisfy all claims against him unless such facts appear from the plaintiff’s evidence. Pickard v. Samuels, 64 Miss. 822, 2 So. 250, 1887 Miss. LEXIS 111 (Miss. 1887).

If a defendant have remaining in the state, and which he is not about to remove, ample property to satisfy, and which is liable to his debts, then the mere removal of some other property from the state will not subject him to attachment. Montague v. Gaddis, 37 Miss. 453, 1859 Miss. LEXIS 37 (Miss. 1859); Pickard v. Samuels, 64 Miss. 822, 2 So. 250, 1887 Miss. LEXIS 111 (Miss. 1887).

9. Concealment of property.

There must be both concealment and unjust refusal to apply to debts to justify attachment. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Concealment of property is ground for attachment, regardless of whether successful. Gray v. Valley, 136 Miss. 886, 101 So. 855, 1924 Miss. LEXIS 186 (Miss. 1924).

In attachment, evidence of bank deposits in assumed name sufficient for submission to jury of question of whether defendant had property which he had concealed and unjustly refused to apply to payment of debts. Gray v. Valley, 136 Miss. 886, 101 So. 855, 1924 Miss. LEXIS 186 (Miss. 1924).

A judgment on an attachment writ reciting that defendant unjustly refused to apply his property to the payment of his debts, is not invalid because of a variance between it and the affidavit, which alleged that defendant had property which he concealed and unjustly refused to apply to the payment of his debts. Brown v. Williams-Brooke Co., 106 Miss. 187, 63 So. 351, 1913 Miss. LEXIS 121 (Miss. 1913).

Where an affidavit in attachment assigned as a ground that defendant had property or rights of action which he concealed or refused to apply on his debts, and the testimony shows that he had an office in the county where suit was brought, and had property there and spent a large part of his time in said county, the court should have granted a peremptory instruction for defendant. Smith v. Corporation of Oxford, 91 Miss. 651, 45 So. 365, 1907 Miss. LEXIS 176 (Miss. 1907).

10. Assignment or disposal of property with intent to defraud creditors.

A writ of attachment on the ground that defendant had assigned or disposed of his property or is about to assign or dispose of his property or rights in action, with intent to defraud his creditors, was not sustained by the evidence tending to show that the defendant was running a sawmill, and that he shipped his lumber out of the state, and that he owed plaintiff, but had not paid him, and defendant was entitled to a verdict on the attachment issue. Terry v. Jolly, 115 Miss. 26, 75 So. 756, 1917 Miss. LEXIS 179 (Miss. 1917).

Certain evidence held admissible on the question of genuineness of a debt preferred in an alleged fraudulent assignment. English v. Friedman, 70 Miss. 457, 12 So. 252, 1892 Miss. LEXIS 112 (Miss. 1892).

To sustain an attachment on the ground of the fraudulent disposition of property, the plaintiff may rest on evidence which shows such disposition, in case the defendant owns no other property; the ownership of other and (ample) property, liable to his debts, must be shown by defendant, unless it appear from the plaintiff’s evidence. Pickard v. Samuels, 64 Miss. 822, 2 So. 250, 1887 Miss. LEXIS 111 (Miss. 1887).

If the purpose to remove exist, and may be carried out in one, two, three, or several weeks or months, though the debtor’s movements be not characterized by fright, speed, or haste, he is liable to attachment, if the object be to defeat, defraud or delay creditors. Myers v. Farrell, 47 Miss. 281, 1872 Miss. LEXIS 75 (Miss. 1872).

11. Fraudulently contracted debt for which suit is about to be brought.

Where defendant traded to the plaintiff two automobiles he knew to be stolen property and also by bill of sale the defendant expressly warranted the title to the property, and the automobiles, so traded to plaintiffs, were repossessed by the original owners, the obligation was fraudulently contracted and furnished sufficient ground for attachment of defendant’s property. Davis v. Shemper, 210 Miss. 201, 49 So. 2d 253, 1950 Miss. LEXIS 338 (Miss. 1950).

Intent to defraud must exist when debt is created for attachment on such ground. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

A false warranty, knowingly made, is evidence of a fraudulent contraction of the debt. Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 1887 Miss. LEXIS 6 (Miss. 1887).

Although the defendant commit a felony in contracting the debt sued for, to sustain the attachment it must be shown that in so doing he intended to defraud the plaintiff. The statute defining the felony in this case was intended for the protection of the public. Hughes v. Lake, 63 Miss. 552, 1886 Miss. LEXIS 137 (Miss. 1886).

A purpose to defraud at the time is necessary in order to constitute the fraudulent contraction of the debt. Marqueze v. Sontheimer, 59 Miss. 430, 1882 Miss. LEXIS 130 (Miss. 1882).

12. Dealing in futures.

Where defendant made two purchases of “futures” for an undisclosed principal, one with his principal’s money and one with his own, plaintiff was entitled to a peremptory instruction that the attachment was rightfully sued out. Dillard v. Brenner, 73 Miss. 130, 18 So. 933, 1895 Miss. LEXIS 119 (Miss. 1895).

13. Miscellaneous.

Where, as to a writ of garnishment issued to nonresident express company doing business in the state, the garnishee had the right to raise legal question as to jurisdiction of the court and also the reasonableness of its refusal to answer certain questions, the action of the trial court in striking out the answer of the garnishee and rendering judgment against him without first ordering a hearing, and ordering the garnishee to answer the questions and then to give it ample time within which to do so, was reversible error. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Where buyer of fishing equipment, resident of Mississippi, leased equipment to Louisiana fishermen, buyer could not enjoin unpaid seller in Mississippi from prosecuting attachment suit in Louisiana, notwithstanding Louisiana procedure might deprive buyer of exemption, since buyer, by consummating removal of equipment to Louisiana, deprived seller of right to seize equipment in Mississippi under purchase-money statute or on ground of imminent removal from State. E. J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161, 1934 Miss. LEXIS 139 (Miss. 1934).

Grounds of attachment authorized by statute must be proven. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Instruction in attachment suit that “if plaintiff has failed to prove any of said grounds,” it is the duty of the jury to find for defendant, the word “any” is synonymous with “either”. Carr-Lowry Lumber Co. v. Martin, 144 Miss. 106, 109 So. 849, 1926 Miss. LEXIS 362 (Miss. 1926).

Where the evidence wholly fails to sustain any one of the grounds of attachment, it is error to refuse a peremptory instruction for defendant. Pinola Lumber Co. v. Husbands, 118 Miss. 229, 79 So. 69, 1918 Miss. LEXIS 58 (Miss. 1918).

Declaration can be amended so as to increase the amount of indebtedness claimed after trial of the attachment issue. Anderson v. Dever, 109 Miss. 235, 68 So. 166, 1915 Miss. LEXIS 141 (Miss. 1915).

Although for want of a plea in abatement judgment is rendered for plaintiff on the attachment, yet if the issue as to indebtedness is decided for defendant, this is conclusive evidence that the attachment was wrongfully sued out and defendant has a right of action for damages on the attachment bond. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

Unless the question is one of defendant’s estoppel to deny the ground of the attachment, plaintiff’s belief, though induced by the conduct and language of the defendant as to the defendant’s solvency, or the truth of the grounds of attachment, is immaterial. Stadder v. Jacobs, 70 Miss. 429, 12 So. 444 (Miss. 1892).

Where cause for attachment is shown for only a part of the debt, and the court has no jurisdiction of so small an amount as that part, the whole attachment must fail. Delmas Bros. v. Morrison, 61 Miss. 314, 1883 Miss. LEXIS 128 (Miss. 1883).

RESEARCH REFERENCES

ALR.

Sufficiency of affidavit for attachment, respecting fraud or intent to defraud, as against objection that it is a mere legal conclusion. 8 A.L.R.2d 578.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 149, 155, 185.

CJS.

7 C.J.S., Attachment §§ 121, 122 et seq., 145.

§ 11-33-11. Bond.

The creditor, his agent, or attorney, shall also give bond, with a sufficient surety or sureties, to be approved by the officer issuing the attachment, in double the sum for which the complaint is made payable to the defendant and conditioned to the effect following, to wit:

“The condition of the above obligation is that, whereas, the above bound prays an attachment against the estate of The said for the sum of dollars, returnable to the court of , on the day of next:

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“Now, if the plaintiff shall pay to the defendant all such damages as he shall sustain by the wrongful suing out of the attachment, and all costs which may be awarded against the plaintiff in said suit, then the obligation shall be void.”

The bond, together with the affidavit for the attachment, shall be returned by the officer taking the same to the court to which the attachment is returnable.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (8, 14); 1857, ch. 52, art. 6; 1871, § 1425; 1880, § 2416; 1892, § 130; 1906, § 134; Hemingway’s 1917, § 126; 1930, § 124; 1942, § 2680.

Cross References —

Posting bond before attachment of perishable commodities, see §11-1-43.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Sufficiency of bond.

3. Damages recoverable.

1. In general.

State statute authorizing pre-judgment ex parte attachment of realty, without bond and absent exigent circumstances, violated due process clause, as applied, since (1) property interests affected were significant, (2) risk of erroneous deprivation of due process was substantial, (3) post-deprivation safeguards did not adequately reduce risk of such error, (4) interests in favor of ex parte attachment were too minimal to obviate need for pre-deprivation hearing, (5) state’s substantive interest in protecting rights of plaintiff could not be more weighty than plaintiff’s interest, (6) remedy of attachment historically was predicated on some circumstances not here present, and (7) only Connecticut allowed such procedure. Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1, 1991 U.S. LEXIS 3317 (U.S. 1991).

The state has the right to file an action for the collection of unpaid privilege taxes and penalties thereon due the state and its political subdivisions by the use of the statutory remedy of an attachment at law without the giving of an attachment bond provided for by this section. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

Execution and approval of bond are essential to a valid attachment in the Circuit Court. Williams v. Thigpen, 217 Miss. 683, 64 So. 2d 765, 1953 Miss. LEXIS 479 (Miss. 1953).

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).

A judgment rendered by a justice of the peace on a bond is divisible, and when appellant dismisses his case against the surety, a perfectly valid judgment still remains against the principal. Ott v. McElveen, 102 Miss. 139, 58 So. 709, 1911 Miss. LEXIS 185 (Miss. 1911).

The clerk of the circuit court of one county is authorized under this section [Code 1942, § 2680], and Code 1906, §§ 133, 134, to take affidavit, approve bond, and issue a writ in attachment, returnable to the circuit court of another county. Meridian Fertilizer Factory v. Edwards, 77 Miss. 697, 27 So. 645 (Miss. 1900).

If defendant prevails on the debt issue, it is conclusive evidence that the attachment was wrongfully sued out, although for want of a plea in abatement judgment had been entered for plaintiff on the attachment, and defendant has a right of action for damages on the attachment bond. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

2. Sufficiency of bond.

In case of the execution of bond by the officers of a corporation for their company, the presumption is that the instrument has been rightly executed. Saunders v. Columbus Life & General Ins. Co., 43 Miss. 583, 1870 Miss. LEXIS 69 (Miss. 1870).

A bond executed by the usee in the suit is good. Grand G. R. & B. Co. v. Conger, 17 Miss. 505, 1848 Miss. LEXIS 34 (Miss. 1848).

A bond executed by an agent, binding himself personally and not his principal, is sufficient. Frost v. Cook, 8 Miss. 357, 1843 Miss. LEXIS 99 (Miss. 1843); Page v. Ford, 10 Miss. 266, 1844 Miss. LEXIS 144 (Miss. 1844).

A bond signed by one partner, who acts for himself and as agent for his partners in suing out the attachment is sufficient, though not signed by the other members of the firm. Wallis v. Wallace, 7 Miss. 254, 1842 Miss. LEXIS 30 (Miss. 1842).

3. Damages recoverable.

In such case, as defeating the debt also defeats the attachment, attorney’s fees are allowable. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

Actual damages are recoverable on an attachment bond, and counsel fees are embraced. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

Where no property of defendant was attached, but judgment nil dicit was rendered against him on the attachment, he cannot, upon defeating plaintiff on the issue of indebtedness, recover on the attachment bond for attorneys’ fees and expenses incurred in defense of the action of assumpsit against him. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

Where attachment proceedings, though based upon an affidavit and bond appropriate to a distress for rent, proceed thereafter, and are treated by both parties as an ordinary attachment, and the landlord fails in such attachment, the tenant, although not entitled to double damages, may recover on the bond for actual damages. Hawkins v. James, 69 Miss. 361, 11 So. 654, 1891 Miss. LEXIS 99 (Miss. 1891).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 456- 458 et seq.

Bonds, 2 Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Forms 351 et seq.

CJS.

7 C.J.S., Attachment § 138 et seq.

§ 11-33-13. Bond by an agent.

If the bond purport to be executed by an agent or attorney of the attaching creditor, it shall be prima facie evidence that the agent or attorney had due authority to act.

HISTORY: Codes, 1871, § 1426; 1880, § 2417; 1892, § 131; 1906, § 135; Hemingway’s 1917, § 127; 1930, § 125; 1942, § 2681.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-15. Bond excepted to: new bond and affidavit.

When it shall appear to the court, on exceptions taken by the defendant or otherwise, that the sureties on any attachment bond are insufficient, the court shall direct the plaintiff to give a new bond with sufficient surety; and such bond shall be as valid, in all respects, as the original bond. If the plaintiff fail to give a new bond within the time required by the court, the attachment shall be dismissed. In all cases where an attachment bond or affidavit may be defective in any respect, or may be lost or destroyed, the plaintiff shall be allowed to file a new affidavit and bond, which shall be, in all respects, as valid and binding as if given at the commencement of the suit.

HISTORY: Codes, 1857, ch. 52, art. 15; 1871, § 1483; 1880, § 2464; 1892, § 132; 1906, § 136; Hemingway’s 1917, § 128; 1930, § 126; 1942, § 2682.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where the affidavit and writ alleged a debt due, but the declaration was for a debt in part not due, plaintiff was entitled to amend the affidavit and writ by inserting the amount not due and dismissing as to the part due, the grounds of attachment being applicable to either. Dalsheimer v. McDaniel, 69 Miss. 339, 12 So. 338, 1891 Miss. LEXIS 112 (Miss. 1891); Weissinger v. Studebaker Bros. Mfg. Co., 73 Miss. 480, 18 So. 915, 1895 Miss. LEXIS 106 (Miss. 1895).

Leave to amend the affidavit and writ so as to show a debt not due is properly denied, and a motion to quash properly sustained, where the attachment was for a debt past due and issued in one county returnable before the circuit court of another, and it does not appear that defendant resided or last resided, or that his property was found in the former county, and the declaration shows that the only part of the debt past due when the attachment was issued, was below the jurisdiction of the circuit court. Yale v. McDaniel, 69 Miss. 337, 12 So. 556, 1891 Miss. LEXIS 116 (Miss. 1891).

An attachment proceeding will not be quashed, where an application is made to amend the affidavit, because neither the officer nor the affiant signed the affidavit; it being shown that the affidavit was in fact sworn to, and both parties thought everything necessary to be done had been done, and their failure to sign was by mere inadvertence; and this too, even though the affiant did not “hold up his hand and swear.” (The report of this case omits to state, what is shown by the record, that an application to amend was made.) Dunlap v. Clay, 65 Miss. 454, 4 So. 118, 1888 Miss. LEXIS 19 (Miss. 1888).

A bond signed by sureties in a partnership name may be amended by allowing each partner to sign his own name. Boisseau & Martenez v. Kahn, 62 Miss. 757, 1885 Miss. LEXIS 138 (Miss. 1885).

The jurat to an affidavit may be amended by allowing the officer to subscribe his name to it. Boisseau & Martenez v. Kahn, 62 Miss. 757, 1885 Miss. LEXIS 138 (Miss. 1885).

A bond executed by a single surety, who was incapacitated to become such, is amendable. Field, Morris & Fenner v. McKinney, 60 Miss. 763, 1883 Miss. LEXIS 11 (Miss. 1883).

Under this provision, which expressly authorizes amendments, a defective affidavit for attachment may be amended by adding a new ground for the attachment. Fitzpatrick v. Flannagan, 106 U.S. 648, 1 S. Ct. 369, 27 L. Ed. 211, 1882 U.S. LEXIS 1598 (U.S. 1882).

Mere irregularities in the bond must be availed of by exceptions taken by the defendant; a claimant, or the surety on his bond, cannot object to the attachment proceedings on account thereof. Atkinson v. Foxworth, 53 Miss. 741, 1876 Miss. LEXIS 143 (Miss. 1876).

The amendment of an affidavit in attachment does not affect the lien of the writ. Griffing v. Mills, 40 Miss. 611, 1866 Miss. LEXIS 102 (Miss. 1866).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 372 et seq.

CJS.

7 C.J.S., Attachment § 138 et seq.

§ 11-33-17. The writ.

On affidavit being made and bond given, the officer approving the bond shall issue one or more writs of attachment against the estate of the debtor, directed to the sheriff, or any other proper officer of the county or counties in which the defendant shall have property or debts, and shall be returnable to the next term of the circuit court of any county, or to the justice court of any county, in cases within the jurisdiction of the justice court, in which the defendant or property or debts of the defendant may be found and shall be the leading process of the suit.

HISTORY: Codes, 1857, ch. 52, art. 3; 1871, § 1428; 1880, § 2418; 1892, § 133; 1906, § 137; Hemingway’s 1917, § 129; 1930, § 127; 1942, § 2683; Laws, 1981, ch. 471, § 34; Laws, 1982, ch. 423, § 28.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Form of writ, see §11-33-19.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The fact that an attachment bond was not marked approved by circuit clerk until day after affidavit and attachment was made and writ was issued and levied was not sufficient to justify the quashing of the attachment, where the bond met with clerk’s approval as good and sufficient and he called it to the attention of the sheriff as affording protection to him in the execution of writ then delivered to the executing officer. Small v. Sturgis Lumber Co., 216 Miss. 515, 62 So. 2d 765, 1953 Miss. LEXIS 662 (Miss. 1953).

Code 1906 §§ 3079, 3080, so far as applicable, may be used by the claimant of property, where the contest is between him and the seller thereof, the same as if suit arose in attachment. Quillin v. Paine, 94 Miss. 696, 47 So. 898, 1909 Miss. LEXIS 332 (Miss. 1909).

The clerk of the circuit court of one county is authorized under this section [Code 1942, § 2683], to take affidavit, approve bond, and issue a writ in attachment, returnable to the circuit court of another county. Meridian Fertilizer Factory v. Edwards, 77 Miss. 697, 27 So. 645 (Miss. 1900).

A justice cannot specially deputize a private person to execute a writ of attachment in another county. Miller v. Edwards, 75 Miss. 739, 23 So. 426, 1898 Miss. LEXIS 19 (Miss. 1898).

An attachment suit by consent of parties may be transferred by change of venue from the circuit court of one county to that of another. Weissinger v. Mansur & Tibbetts Implement Co., 75 Miss. 64, 21 So. 757 (Miss. 1897).

Where there is no levy upon property or garnishment in the county where the action is brought, although an alias writ of attachment has been served as a summons upon defendant in another county where he resides, the court is without jurisdiction. Campbell v. Triplett, 74 Miss. 365, 20 So. 844, 1896 Miss. LEXIS 112 (Miss. 1896).

The venue of actions in personam is “in the county in which the defendant or any of them may be found.” Campbell v. Triplett, 74 Miss. 365, 20 So. 844, 1896 Miss. LEXIS 112 (Miss. 1896).

A writ of attachment issued by one as deputy, who though by reason of minority is ineligible to appointment, acts as deputy and is generally recognized by the public as such, is not void as he is a de facto officer. Wimberly v. Boland, 72 Miss. 241, 16 So. 905, 1894 Miss. LEXIS 121 (Miss. 1894).

Where a deputy clerk issues an attachment in the name of the clerk without affixing his name as deputy, the writ is not void. At most, this is only an irregularity and is amendable. Wimberly v. Boland, 72 Miss. 241, 16 So. 905, 1894 Miss. LEXIS 121 (Miss. 1894).

Where a writ of attachment, issued by a justice of the peace in one district, is returnable to a justice’s court to be held at a designated place in another district, and the parties appear at the place to which the writ is returnable, and try the case before a justice of the peace other than the one who issued the writ, the judgment is valid; and on appeal to the circuit court in such case, the certificate of the justice who tried the case that the affidavit and bond are a part of the record in the case in his court, obviates all objections to them on the ground that they were not executed before him. Armitage v. Rector, Ratliff & Co., 62 Miss. 600, 1885 Miss. LEXIS 118 (Miss. 1885).

The proper court of the county of a garnishee’s residence has jurisdiction of an attachment against a defendant to whom he is indebted, although the defendant be a householder and resident of another county. Barnett v. Ring, 55 Miss. 97, 1877 Miss. LEXIS 111 (Miss. 1877); Smith v. Mulhern, 57 Miss. 591, 1880 Miss. LEXIS 7 (Miss. 1880); Baum v. Burnes, 66 Miss. 124, 5 So. 697, 1888 Miss. LEXIS 75 (Miss. 1888).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 235- 245, 277 et seq.

Writ, warrant, or order of attachment, 2 Am. Jur. Pl and Pr Forms (Rev ed), Attachment and Garnishment, Forms 31 et seq.

CJS.

7 C.J.S., Attachment §§ 130, 158, 210-227, 257–260, 339—344.

§ 11-33-19. Form of the writ.

The writ shall be in the form or to the effect following, to wit:

“THE STATE OF MISSISSIPPI “To the sheriff or any constable of county, greeting: “Whereas, AB (or agent or attorney of AB) hath complained on oath to one of the judges of the Supreme Court (or other officer as the case may be) that CD is justly indebted to the said AB to the amount of and that the said CD is a nonresident, etc. (reciting the affidavit) and bond and security having been given according to the statute: “We therefore command you that you attach the said CD by his estate, re al and personal, in your county to the value of the said demand and costs of suit, and that you safely keep the same according to law, so as to compel the said CD to appear before the court (or before the court of , a justice court judge of county), to be held at , in and for the county of , on the Monday of , to answer the above complaint. And that you summon the said CD, if to be found in your county, to appear and answer accordingly; and have there then this writ, with your proceedings thereon. “Witness my hand, this day of , A.D. .”

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The writ shall be signed by the officer granting the same or, if issued by a clerk or his deputy, shall be dated, signed and sealed as other writs; and an attachment shall not be quashed or abated for want of form if the substantial matters expressed in the foregoing precedent be contained therein; and on the demand of the plaintiff said writ may embody a garnishment.

HISTORY: Codes, 1857, ch. 52, art. 6; 1871, § 1429; 1880, § 2419; 1892, § 134; 1906, § 138; Hemingway’s 1917, § 130; 1930, § 128; 1942, § 2684; Laws, 1981, ch. 471, § 35; Laws, 1982, ch. 423, § 28; Laws, 1986, ch. 459, § 24, eff from and after July 1, 1986.

Cross References —

Writ, generally, see §11-33-17.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where plaintiff sues out attachment against defendant and suggests that A has property in his possession belonging to defendant, and A answers that he has no control over the property and does not know whether it belongs to defendant, but that it is in a building which he leased defendant, whereupon an order is made that A surrender the property to the sheriff this is not a garnishment, and does not bar the rightful owner of the right to assert her title thereto. Minshew v. Geo. W. Davidson & Co., 86 Miss. 354, 38 So. 315, 1905 Miss. LEXIS 29 (Miss. 1905).

The fact that a writ of attachment addressed to any officer of the county in which the writ was issued was served in another county by an officer of that county, to which officer it was not addressed, does not affect the validity of the service. Hawkins & Co. v. McAlister, 86 Miss. 84, 38 So. 225, 1905 Miss. LEXIS 13 (Miss. 1905).

Under this section [Code 1892, § 134] and the section following [Code 1892, § 135], officers issuing attachments may embody a writ of garnishment therein and may issue duplicate and alias writs of attachment and garnishment. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 237, 240, 242, 249 et seq.

State and federal forms, 2 Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Forms 87, 88.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Form 87, 88.

CJS.

7 C.J.S., Attachment §§ 217, 218 et seq.

§ 11-33-21. Duplicate and alias writs.

The officer granting an attachment may issue duplicate writs to any other county in which the defendant may have property or debts due him, which writs shall be returnable to the court to which the original is returnable, and shall be executed and returned in like manner. Where the attachment has not been executed, or where no property has been found, or not sufficient to satisfy the debt, or where the plaintiff desires to garnish other persons, the clerk of the court to which same is returnable may issue alias writs to the same or other counties without a renewal bond or affidavit.

HISTORY: Codes, 1857, ch. 52, art. 16; 1871, § 1432; 1880, § 2421; 1892, § 135; 1906, § 139; Hemingway’s 1917, § 131; 1930, § 129; 1942, § 2685.

Cross References —

Alias and pluries summons and testatum writ, see §13-3-15.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Defects in the proceedings by which an attachment writ was sued out and served will not justify a dismissal of the suit on the debt nor deprive the plaintiff of the right to amend and sue out alias process. Foote v. John E. Hall Com. Co., 84 Miss. 445, 36 So. 533, 1904 Miss. LEXIS 62 (Miss. 1904).

Under this section [Code 1892, § 135] and the section preceding [Code 1892, § 134], officers issuing attachments may embody a writ of garnishment therein and may issue duplicate and alias writs of attachment and garnishment. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

The service of an alias attachment writ, returnable to a court, will give the court jurisdiction. Barnett v. Ring, 55 Miss. 97, 1877 Miss. LEXIS 111 (Miss. 1877).

It is not required that the duplicate writs should have indorsed thereon that they are duplicates. Saunders v. Columbus Life & General Ins. Co., 43 Miss. 583, 1870 Miss. LEXIS 69 (Miss. 1870).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 242- 244.

CJS.

7 C.J.S., Attachment §§ 247–253.

§ 11-33-23. Writ to be served, on what, and what bound by the levy.

The officer receiving the writ of attachment shall forthwith levy the same, according to law, on the property of the defendant, real and personal, wherever found; and he shall summon as garnishees, by writs of garnishment, to be issued and served by himself, and duly returned, all persons indebted to the defendant, or having in possession effects belonging to him, to appear at the court to which the attachment is returnable, there to answer as required by law; and he shall seize the books of accounts and other evidence of debt belonging to the defendant and levy on the stock, shares, or interest of the defendant in any corporation, joint-stock company, or copartnership. All the property, debts, choses in action, stock, shares, and interest of the defendant attached, shall be bound by the levy from the date thereof.

HISTORY: Codes, 1857, ch. 52, art. 4; 1871, § 1434; 1880, § 2423; 1892, § 136; 1906, § 140; Hemingway’s 1917, § 132; 1930, § 130; 1942, § 2686.

Cross References —

Summoning of creditor of judgment debtor in garnishment proceeding, see §11-35-3.

When bond of indemnity is required, see §13-3-157.

Refusal to give aid to sheriff, see §19-25-67.

Exemption of income or principal from an employee trust plan, see §71-1-43.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general; assignment.

2. Claimant.

3. Effect of levy.

4. Garnishment.

5. Nonresident.

6. Persons entitled.

1. In general; assignment.

In case of a general assignment, where previous attachments have been levied, the property should be sold by the assignee-receiver, free from the lien of the attachments, and the proceeds applied by the court to the payment of the attaching creditors. Weems v. Love Mfg. Co., 74 Miss. 831, 21 So. 915, 1897 Miss. LEXIS 65 (Miss. 1897).

2. Claimant.

Code 1906 § 4990, so far as applicable, may be used by the claimant of property, where the contest is between him and the seller thereof, the same as if suit arose in attachment. Quillin v. Paine, 94 Miss. 696, 47 So. 898, 1909 Miss. LEXIS 332 (Miss. 1909).

Personal property seized in attachment and delivered to a claimant under a forthcoming bond is no longer in custodia legis and is subject to execution or attachment by creditors of the claimant. Hart v. Livermore Foundry & Mach. Co., 72 Miss. 809, 17 So. 769, 1895 Miss. LEXIS 30 (Miss. 1895).

3. Effect of levy.

A levy on lands to which defendant held a bond for title after he had assigned the same to another does not bind the land although the creditor was without notice, actual or constructive, of the assignment. MacRae v. Goodbar, 80 Miss. 315, 31 So. 812, 1902 Miss. LEXIS 260 (Miss. 1902).

Whatever may be true of the validity of the levy, a junior creditor cannot question it, unless he has procured such a levy upon the property in his own case as will give him precedence. Scharff v. Chaffe, 68 Miss. 641, 9 So. 897, 1891 Miss. LEXIS 28 (Miss. 1891).

The seizure of the books of accounts and the choses in action creates no lien; this can be acquired only by service of notice on the garnishees. Boone v. McIntosh, 62 Miss. 744, 1885 Miss. LEXIS 135 (Miss. 1885).

4. Garnishment.

Where a garnishee is served and fails to answer, judgment against the garnishee will depend upon the validity of the judgment against the defendant, and if such judgment is not authorized the judgment against the garnishee will be reversed on appeal. Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375, 1924 Miss. LEXIS 127 (Miss. 1924).

Under this section [Code 1942, § 2686], the officer receiving a writ of attachment with no suggestion contained in it of garnishment may summon as garnishees persons whose names may be suggested to him. The section supplements, but does not supersede, the power of officers under §§ 138, 139 Code 1892 to issue attachment and garnishment writs. First Nat'l Bank v. First Nat'l Bank, 72 Miss. 258, 16 So. 904, 1894 Miss. LEXIS 120 (Miss. 1894).

Where a writ embodies a garnishment, as it may under Code 1930, § 128, but the sheriff instead of summoning the garnishees thereunder, issues and serves an independent writ of garnishment under this section, the latter writ, though unnecessary, is not invalid. First Nat'l Bank v. First Nat'l Bank, 72 Miss. 258, 16 So. 904, 1894 Miss. LEXIS 120 (Miss. 1894).

As to garnishments, the purpose of this section [Code 1942, § 2686] was to give a supplemental writ to be issued by the officer having the original in his hands for service, for the purpose of supplying a deficiency in the original and not to take away the right of the officer issuing the attachment writ to embody garnishment writs therein. First Nat'l Bank v. First Nat'l Bank, 72 Miss. 258, 16 So. 904, 1894 Miss. LEXIS 120 (Miss. 1894).

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).

5. Nonresident.

By attachment of nonresident’s shares in resident corporation, court acquired jurisdiction to render decree against nonresident condemning shares for sale to satisfy indebtedness. Grenada Bank v. Glass, 150 Miss. 164, 116 So. 740, 1928 Miss. LEXIS 142 (Miss. 1928).

Nonresident defendant will not be heard, on his plea to the jurisdiction of the court, to allege nonownership of the property levied upon. Weaver Grocery Co. v. Cain Milling Co., 117 Miss. 781, 78 So. 769, 1918 Miss. LEXIS 221 (Miss. 1918).

Where in a suit in attachment and for an accounting, complainant fails to show that there was any property belonging to the defendant in the hands of the third party when the attachment was served, the court obtained no jurisdiction to entertain the suit and order an accounting. Louis Werner Sawmill Co. v. Sheffield, 89 Miss. 12, 42 So. 876, 1906 Miss. LEXIS 91 (Miss. 1906).

6. Persons entitled.

A creditor of a nonresident corporation which has been consolidated into a new nonresident one, may attach the new corporation at law and garnish a debt to the old company which has been transferred to the new one. Morrison v. American Snuff Co., 79 Miss. 330, 30 So. 723, 1901 Miss. LEXIS 75 (Miss. 1901).

A sheriff holding an attachment writ against a corporation incurs no liability to plaintiff for refusing to levy it on the property of the individuals composing it and managing its affairs. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

This is true even if it can be shown that if the levy had been made the property might thereafter have been subjected in a chancery proceeding to the demand of plaintiff. State use of Owen v. Marshall, 69 Miss. 486, 13 So. 668, 1891 Miss. LEXIS 141 (Miss. 1891).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 249- 257.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 141 et seq.

CJS.

7 C.J.S., Attachment §§ 265 et seq.

§ 11-33-25. The defendant to be summoned.

The officer serving the attachment shall summon the defendant, if to be found, to appear and answer the action, as in other cases.

HISTORY: Codes, 1880, § 2423; 1892, § 137; 1906, § 141; Hemingway’s 1917, § 133; 1930, § 131; 1942, § 2687.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 317, 488- 491.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 141 et seq.

§ 11-33-27. Proceeding when levy by other than sheriff.

If a writ of attachment, returnable to the circuit court, be served by a constable, marshall, or by any person specially appointed for that purpose, the writ of attachment with the return thereon of the action of such person and all property and effects levied on, shall forthwith be delivered to the sheriff of the proper county, who shall be responsible for the property so seized, and shall return the writ to the proper court, with a statement of his action under it; but if the sheriff be a party, the office serving the attachment shall make the return, and so state therein, and likewise retain the property, unless the court, or judge in vacation, make an order for the safekeeping and forthcoming thereof.

HISTORY: Codes, 1871, § 1437; 1880, § 2426; 1892, § 138; 1906, § 142; Hemingway’s 1917, § 134; 1930, § 132; 1942, § 2688; Laws, 1986, ch. 459, § 25, eff from and after July 1, 1986.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where a writ of attachment is returned served by one not an officer of the court, it is error to refuse to issue an alias writ on plaintiff’s request, and to dismiss the entire suit, but the attachment should be kept alive by the issuance of the alias, and if no personal service of the summons has been had, an alias summons should also be issued. Foote v. John E. Hall Com. Co., 84 Miss. 445, 36 So. 533, 1904 Miss. LEXIS 62 (Miss. 1904).

A circuit court has no jurisdiction of an attachment returned by a constable where the record does not show that he ever delivered the writ to the sheriff with his return or that claimants bonded the property. Tishomingo Sav. Inst. v. Allen, 76 Miss. 114, 23 So. 305, 1898 Miss. LEXIS 52 (Miss. 1898).

The circuit court has no jurisdiction of an attachment returned by a constable unless the sheriff be a party. Tucker v. Byars, 46 Miss. 549, 1872 Miss. LEXIS 24 (Miss. 1872); Barnett v. Ring, 55 Miss. 97, 1877 Miss. LEXIS 111 (Miss. 1877).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 141 et seq.

§ 11-33-29. Attachment may be issued and served on Sunday.

Attachments may in all cases be issued and executed on Sunday; and may be executed in any part of the county, by any constable of the county, or by the constable or any police officer of any municipality, in the same manner as the sheriff of the county. In cases of emergency, and when a sheriff or his deputy, or a constable or police officer cannot be had in time, the officer issuing an attachment may appoint some reputable person to execute such attachment; and such officer shall be liable on his bond and individually for the consequence of appointing an insolvent or incompetent person for such service.

HISTORY: Codes, 1857, ch. 52, art. 40; 1871, § 1433; 1880, § 2471; 1892, § 139; 1906, § 143; Hemingway’s 1917, § 135; 1930, § 133; 1942, § 2689.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 251, 253.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 141 et seq.

CJS.

7 C.J.S., Attachment §§ 266–269.

§ 11-33-31. Return of writ and bonds.

The officer serving an attachment shall make a full return thereon of all his proceedings, on or before the return day of the writ. He shall deliver to the court or clerk all bonds which he may have taken pursuant to law.

HISTORY: Codes, 1857, ch. 52, art. 6; 1871, § 1436; 1880, § 2425; 1892, § 140; 1906, § 144; Hemingway’s 1917, § 136; 1930, § 134; 1942, § 2690.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

It cannot be presumed that the officer levied upon any property other than that enumerated in his return on the writ. Phillips v. Harvey, 50 Miss. 489, 1874 Miss. LEXIS 81 (Miss. 1874).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 277- 287.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 171 et seq.

CJS.

7 C.J.S., Attachment §§ 339, 340 et seq.

§ 11-33-33. Ancillary attachment.

When a suit shall have been commenced, the plaintiff may obtain an attachment against the defendant, or one or more of them, on making affidavit and giving bond as required in other cases of attachment, which attachment shall be granted, issued, executed, and returned by the same officers; and the like proceedings as far as applicable, shall be had thereon as in other cases. The affidavit, bond, and writ, when returned, shall be filed with the papers in the original suit, which shall not be delayed thereby.

HISTORY: Codes, 1857, ch. 52, art. 13; 1871, § 1482; 1880, § 2461; 1892, § 141; 1906, § 145; Hemingway’s 1917, § 137; 1930, § 135; 1942, § 2691.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-35. Attachment for debt not due.

When any creditor whose debt is not due, shall make affidavit of any of the last six grounds for an attachment, or that he has just cause to suspect, and verily believes, that his debtor will remove himself or his effects out of the state before said debt will become payable, with intent to hinder, delay, or defraud his creditors, or that he hath removed, with like intent, leaving property in this state, and shall give bond as in other cases, he may obtain an attachment returnable to the county where the debtor resides, or last resided, or where his property may be found. Such attachment shall be issued, executed, and returned, and the like proceedings had thereon as in other cases of attachment.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (20); 1857, ch. 52, art. 12; 1871, § 1455; 1880, § 2459; 1892, § 142; 1906, § 146; Hemingway’s 1917, § 138; 1930, § 136; 1942, § 2692.

Cross References —

Bond to discharge attachment for a debt not due, see §11-33-63.

Judgment in case in which debt is not due, see §11-33-93.

Debt of garnishee which is not due, see §11-35-35.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where an attachment is sued out in the county where the debtor resides and his property is found, the affidavit and writ alleging a debt due, but the declaration being for a debt in part not due, plaintiff is entitled to amend the affidavit and writ as to show that the attachment was for a debt not due, and to dismiss as to the part due. Dalsheimer v. McDaniel, 69 Miss. 339, 12 So. 338, 1891 Miss. LEXIS 112 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Claim, obligation, or liability within contemplation of statute providing for attachment, or giving right of action for indemnity, before debt or liability is due. 58 A.L.R.2d 1451.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 11, 33, 34.

§ 11-33-37. Publication of notice.

When any writ of attachment shall be executed and returned, if the defendant be not summoned, the clerk of the court shall cause a notice to be published once a week for three weeks in some newspaper published within the county, or in some convenient county, and having a circulation in the county in which the suit is pending, stating the issuance of such attachment, at whose suit, against whose estate, for what sum, and in what court the same is pending and that unless the defendant appear on the first day of the next succeeding term of court and plead to said action, judgment will be entered, and the estate attached will be sold. Such publication may be made before or after the return term of court, but in cases of attachment against persons residing out of this state, the creditor, his agent or attorney, shall file with the clerk his affidavit-if the affidavit for the attachment do not contain such statement-showing the post office of the defendant, or that he has made diligent inquiry to ascertain it without success; and if the post office shall be stated, the clerk shall send by mail to such defendant, at his post office, a copy of such notice, and shall make it appear to the court that he has done so, before judgment shall be rendered on publication of notice; and for a failure of duty in this respect, the clerk may be punished as for contempt.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (15); 1857, ch. 52, art. 19; 1871, §§ 1472 et seq; 1880, § 2437; 1892, § 143; 1906, § 147; Hemingway’s 1917, § 139; 1930, § 137; 1942, § 2693.

Cross References —

Attachment against nonresidents, see §11-31-9.

Applicability of provisions of this section to procedures for disposition of property seized in connection with violations of the Uniform Controlled Substances Law ( §41-29-101 et seq.), see §41-29-177.

Procedure for forfeiture of property seized for violation of fish and game laws, see §49-7-251 et seq.

Service by publication in forfeiture proceeding under alcoholic beverage control law, see §67-1-93.

Service by publication, in proceeding for forfeiture of vehicle used in drive-by shooting, to be made as provided in this section, see §97-3-111.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The fact that service of process by publication, published four times at weekly intervals, in a suit by an attachment at law on the ground of nonresidence to collect an indebtedness, had not been completed for at least five days before the term of court, at which it was returnable, convened, did not render void the judgment rendered. Stevens v. Barbour, 193 Miss. 109, 8 So. 2d 242, 1942 Miss. LEXIS 98 (Miss. 1942).

When affidavit for attachment is upon ground of nonresidence of defendant, officer executing attachment writ is not required to make effort to summon defendant. Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 1934 Miss. LEXIS 132 (Miss. 1934).

Claimant of funds in attachment proceedings has burden of proving improper service alleged to render judgment against attachment debtor invalid. Piqua Sav. Bank v. Copiah Hardware Co., 146 Miss. 581, 111 So. 836, 1927 Miss. LEXIS 225 (Miss. 1927).

Where an attachment is sued out against a nonresident of this state, and no personal summons is served on such nonresident or his agent, but publication is depended upon for service, a judgment cannot be rendered at the return term, and if one is entered it is void and will be reversed upon appeal. Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375, 1924 Miss. LEXIS 127 (Miss. 1924).

It is not necessary that the clerk of the court mail a copy of the notice to a resident defendant. This notice is only required to be mailed when the suit is against persons residing outside of the state. H.O. & C.A. Thompson v. J. C. Camors & Co., 126 Miss. 772, 89 So. 649, 1921 Miss. LEXIS 78 (Miss. 1921).

Whether the creditor, his agent or attorney filed an affidavit showing the postoffice of the defendant or that he had made diligent inquiry to ascertain it without success, cannot be inquired into in a collateral attack on the judgment rendered. Cotton v. Harlan, 124 Miss. 691, 87 So. 152, 1920 Miss. LEXIS 558 (Miss. 1920); Thompson v. J. C. Camors & Co., 126 Miss. 772, 89 So. 649, 1921 Miss. LEXIS 78 (Miss. 1921).

A purchaser at a sale under the judgment in an attachment suit acquires the right of defendant in attachment, and has the same right to file a bill to annul a judgment in a senior attachment, on the ground that the affidavit showing defendant’s address or that plaintiff after diligent inquiry was unable to ascertain it, required by Code of 1892 § 143, had not been made. McKinney v. Adams, 95 Miss. 832, 50 So. 474, 1909 Miss. LEXIS 304 (Miss. 1909).

A judgment rendered without proof of publication is void. Oliver v. Baird, 90 Miss. 718, 44 So. 35, 1907 Miss. LEXIS 104 (Miss. 1907).

Personal service of summons in another state, as authorized by § 3922 Code 1906, will not justify a personal judgment. Cudabac v. Strong, 67 Miss. 705, 7 So. 543, 1890 Miss. LEXIS 126 (Miss. 1890).

Where there is no return showing a service of process on defendant and no affidavit as required, although publication be made and be mailed, a judgment by default will be void. Drysdale v. Biloxi Canning Factory, 67 Miss. 534, 7 So. 541, 1890 Miss. LEXIS 124 (Miss. 1890).

Publication is to be made after the levy of the writ, if the defendant be not summoned. Griffing v. Mills, 40 Miss. 611, 1866 Miss. LEXIS 102 (Miss. 1866).

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment § 491.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 151 et seq.

CJS.

7 C.J.S., Attachment § 468.

§ 11-33-39. When publication unnecessary.

Such publication of notice shall not be necessary if it shall be served on the nonresident defendant, and proof of such service be made as provided for in case of nonresident defendants in chancery; but such proof of service of notice shall be as effectual as if such defendant had been served with a summons.

HISTORY: Codes, 1880, § 2438; 1892, § 144; 1906, § 148; Hemingway’s 1917, § 140; 1930, § 138; 1942, § 2694.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 151 et seq.

§ 11-33-41. Form of notice required.

The notice of the attachment which the clerk is required to cause to be published may be in the following form, to wit:

“The State of Mississippi to : An attachment at the suit of against your estate, for dollars, returnable before the circuit court of County, at , Mississippi, has been executed, and is now pending in said court; and unless you appear before said court on the Monday of A. D. , and plead to said action, judgment will be entered, and the estate attached will be sold. , A. D. , Clerk.”

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HISTORY: Codes, 1880, § 2439; 1892, § 145; 1906, § 149; Hemingway’s 1917, § 141; 1930, § 139; 1942, § 2695.

Cross References —

Applicability of provisions of this section to procedures for disposition of property seized in connection with violations of the Uniform Controlled Substances Law ( §41-29-101 et seq.), see §41-29-177.

Procedure for forfeiture of property seized for violation of fish and game laws, see §49-7-251 et seq.

Service by publication in forfeiture proceeding under alcoholic beverage control law, see §67-1-93.

Notice by publication, in proceeding for forfeiture of vehicle used in drive-by shooting, to contain requisites specified in this section, see §97-3-111.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 151 et seq.

§ 11-33-43. In absence of newspaper.

If there should be no newspaper published within the county in which the attachment is pending, or in a convenient county, such notice shall be posted at the door of the courthouse of the county, and that shall be instead of publication in a newspaper.

HISTORY: Codes, 1880, § 2440; 1892, § 146; 1906, § 150; Hemingway’s 1917, § 142; 1930, § 140; 1942, § 2696.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 151 et seq.

§ 11-33-45. Property may be replevied.

The defendant, at any time before final judgment, may replevy the personal property seized and taken into possession by the officer serving an attachment, by giving to such officer a bond, with sufficient sureties, to be approved by him, payable to the plaintiff, in double the value of such property, conditioned to have said property forthcoming to answer and abide the judgment of the court in said suit, or, in default thereof, to pay and satisfy the judgment to the extent of the value of said property; and on the execution of such bond, the officer shall restore to the defendant the property so replevied, and shall return the bond so taken with the writ of attachment and all proceedings thereon. Such replevin shall not affect the lien of the attachment, or the proceedings thereon, as to any rights, credits, or choses in action of the defendant.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (10); 1857, ch. 52, art. 8; 1871, § 1439; 1880, § 2427; 1892, § 147; 1906, § 151; Hemingway’s 1917, § 143; 1930, § 141; 1942, § 2697.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2697] applies to a purchase money lien proceeding under § 3080 Code 1906. Flanagan v. King-Peeples Auto Co., 132 Miss. 95, 94 So. 841, 1923 Miss. LEXIS 3 (Miss. 1923).

Under this section [Code 1942, § 2697] the lien of an attachment is not affected by the execution of a bond conditioned to surrender the property to answer and abide the judgment of the court or to pay and satisfy the judgment to the extent of the value of such property. C. D. Smith & Co. v. Lacey, 86 Miss. 295, 38 So. 311, 1905 Miss. LEXIS 25 (Miss. 1905).

A discharge in bankruptcy of the party principally liable does not preclude a creditor, whose attachment had been levied upon the property of the bankrupt more than four months before bankruptcy proceedings, from entering such a qualified judgment against the bankrupt as will charge his sureties on a forthcoming bond. C. D. Smith & Co. v. Lacey, 86 Miss. 295, 38 So. 311, 1905 Miss. LEXIS 25 (Miss. 1905).

Although the defendant in a void attachment has replevied the property seized, his appearance alone for the purpose of moving to quash confers no jurisdiction to render judgment against him on the merits. Wood v. Bailey, 77 Miss. 815, 27 So. 1001, 1900 Miss. LEXIS 46 (Miss. 1900).

A defendant in attachment by executing a forthcoming bond is estopped to deny the validity of the levy and cannot thereafter have the same quashed on the ground that the property, when seized by the sheriff, was in custodia legis under a previous levy by a constable. Fenner v. Boutte, 72 Miss. 271, 16 So. 259, 1894 Miss. LEXIS 76 (Miss. 1894).

If the constable levy on property and turn it over to the sheriff, the latter may take the discharge bond even if he be the plaintiff in the suit. Forbes & Beck v. Navra, 63 Miss. 1, 1885 Miss. LEXIS 1 (Miss. 1885).

The surety on the bond cannot plead to the action, or interpose any defense, or complain of any errors in the action against his principal; but he may contest his original liability on the bond or show a discharge from liability. Atkinson v. Foxworth, 53 Miss. 733, 1876 Miss. LEXIS 142 (Miss. 1876).

A surety on a replevin bond is only liable for the value of the property, and the jury must find the value. Bedon v. Alexander, 47 Miss. 254, 1872 Miss. LEXIS 70 (Miss. 1872); Phillips v. Harvey, 50 Miss. 489, 1874 Miss. LEXIS 81 (Miss. 1874).

The execution of a replevy-bond by the defendant before the return day of the writ is equivalent to personal service of process on him, and renders him personally amenable to the jurisdiction of the court. Richard v. Mooney, 39 Miss. 357, 1860 Miss. LEXIS 57 (Miss. 1860).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 463, 465.

CJS.

7 C.J.S., Attachment §§ 489, 510–513.

§ 11-33-47. Form of bond for replevin of goods.

The defendant’s replevin bond may be in the following form, viz.:

“We, , principal, and and sureties, bind ourselves to pay dollars, unless the said shall have forthcoming to abide the judgment of the circuit court of County, in the suit by attachment therein pending in which said is plaintiff and said is defendant, returnable on the day of , a certain levied on by the sheriff of said county by virtue of said attachment, and valued by him at , and now restored to said ; or in default thereof shall satisfy such judgment to the extent of the value of said property, to replevy which this bond is given. Witness our hands, this the of . ”

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HISTORY: Codes, 1880, § 2477; 1892, § 148; 1906, § 152; Hemingway’s 1917, § 144; 1930, § 142; 1942, § 2698.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-49. But one bond required.

If personal property be seized under an attachment writ, and the defendant, or a claimant, replevy the same, giving bond therefor, he shall not be deprived of the property under a subsequent attachment against the same defendant returnable to the same court to which the first writ is returnable; nor shall but one replevy bond be required. The bond given to the plaintiff in the first attachment shall inure to the benefit of the plaintiff in any subsequent attachment, and judgment may be rendered thereon as if it had been made payable to the plaintiff in the subsequent attachment. The officer shall show in his return on a subsequent attachment writ, what prior attachments in same court have been levied upon the property, if any, and whether the property has been replevied therein, naming the sureties on the bond.

HISTORY: Codes, 1892, § 149; 1906, § 153; Hemingway’s 1917, § 145; 1930, § 143; 1942, § 2699.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-51. Execution against sureties.

Where the amount demanded in an untried prior attachment, or the judgment, if the same be tried, shall equal or exceed the value of the property replevied, an execution or other process shall not be issued against the sureties on the replevin bond on a judgment in a subsequent attachment, unless the prior attachment fails, or the judgment therein be satisfied otherwise than by the proceeds of the property replevied.

HISTORY: Codes, 1892, § 150; 1906, § 154; Hemingway’s 1917, § 146; 1930, § 144; 1942, § 2700.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-53. Loss of priority.

If the plaintiff in a prior attachment fail to enforce his judgment, after ten days written notice to do so by the plaintiff in a subsequent attachment, he shall lose his priority; but where the amount of the prior attachment shall be less than the value of the property, process may issue on the subsequent judgment against the sureties on the replevin bond for the difference between the amount of the prior attachment and the value of the property as shown in the officer’s return.

HISTORY: Codes, 1892, § 151; 1906, § 155; Hemingway’s 1917, § 147; 1930, § 145; 1942, § 2701.

Cross References —

Forfeiture of priority of right to enforcement of judgment, see §11-7-193.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 453, 454 et seq.

CJS.

7 C.J.S., Attachment §§ 374, 375, 418 et seq.

§ 11-33-55. One satisfaction releases sureties.

If the value of the property be paid by the sureties, or the property surrendered as provided in the bond, the judgment in the subsequent attachment shall, as to the sureties on the replevin bond, be satisfied.

HISTORY: Codes, 1892, § 152; 1906, § 156; Hemingway’s 1917, § 148; 1930, § 146; 1942, § 2702.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 472, 511.

CJS.

7 C.J.S., Attachment §§ 171–173.

§ 11-33-57. Prior attachment from another court.

Execution or other process shall not issue against the sureties on the replevin bond where the property replevied hath been levied upon and replevied in a prior attachment against the same defendant, returnable to another court, unless the amount of the prior attachment and probable costs thereof be first deducted from the value of the property; and in such case execution may issue against the sureties only for the difference.

HISTORY: Codes, 1892, § 153; 1906, § 157; Hemingway’s 1917, § 149; 1930, § 147; 1942, § 2703.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-59. Bond to discharge attachment for a debt due.

If any defendant in attachment for a debt due shall, at any time before the return thereof, execute and deliver to the officer serving the same, a bond, with two or more sufficient sureties, to be approved by said officer, payable to the plaintiff in attachment, in a penalty double the amount claimed by the plaintiff, conditioned to pay and satisfy any judgment which may be recovered by the plaintiff in the suit, with all costs, the attachment shall be thereby discharged; and all the property of every kind levied on, attached or seized by virtue thereof, shall be released and restored to such defendant. The bond shall be returned with the attachment; and in case of any recovery by the plaintiff in the suit, judgment shall be entered against the defendant and the sureties in the said bond. After the return of the attachment, the bond herein provided for may be given at any time before final judgment, and may be taken by the sheriff, or officer by whom the attachment was served, in case any of the attached property remains in his hands; otherwise, by the clerk of the court in which the attachment is pending.

HISTORY: Codes, 1857, ch. 52, art. 11; 1871, § 1440; 1880, § 2428; 1892, § 154; 1906, § 158; Hemingway’s 1917, § 150; 1930, § 148; 1942, § 2704.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2704] applies to a purchase money lien proceeding under § 3080 Code 1906. Flanagan v. King-Peeples Auto Co., 132 Miss. 95, 94 So. 841, 1923 Miss. LEXIS 3 (Miss. 1923).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 472, 511.

§ 11-33-61. Form of bond to discharge attachment for debt due.

The bond to discharge the attachment for a debt due may be in the following form, viz.:

“We, principal, and and , as sureties, are held and bound to pay the sum of dollars, unless the said shall satisfy any judgment which may be recovered against him by the said in his attachment suit against the said for dollars, returnable before the circuit court of County, on the day of A. D. .”

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HISTORY: Codes, 1880, § 2478; 1892, § 155; 1906, § 159; Hemingway’s 1917, § 151; 1930, § 149; 1942, § 2705.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-63. Bond to discharge attachment for a debt not due.

If a defendant in attachment for a debt not due, shall on or before the return-day thereof, execute and deliver to the officer serving the same, a bond, with two or more sufficient sureties, to be approved by said officers, payable to the plaintiff in attachment, in a penalty double the amount claimed by the plaintiff, conditioned to pay the said debt when it shall become payable and costs of the attachment, the said attachment shall be discharged thereby, and all the property attached shall be released to the defendant. The bond shall be delivered by the officer to the plaintiff. After the return of the attachment, the bond herein provided for may be given at any time before final judgment, and may be taken by the sheriff or officer by whom the attachment was served, in case any of the attached property remains in his hands, or by the clerk of the court in which the attachment is pending.

HISTORY: Codes, 1892, § 156; 1906, § 160; Hemingway’s 1917, § 152; 1930, § 150; 1942, § 2706.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-65. Form of bond to discharge attachment for debt not due.

The bond to discharge attachment for a debt not due may be in the following form, viz.:

“We, principal, and and , sureties, are held and bound to pay the sum of dollars, unless shall well and truly pay the sum demanded by him as plaintiff is his attachment suit for a debt not due, the sum of , dollars, on or before the day of , A. D. , and pay the costs of said suit, which is pending in the circuit court of County, Mississippi. This the day of , A. D. .”

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HISTORY: Codes, 1892, § 157; 1906, § 161; Hemingway’s 1917, § 153; 1930, § 151; 1942, § 2707.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-67. Officer bound if bond insufficient.

If the bond or sureties given by the defendant, or any claimant of the property, or garnishee or other person, be insufficient, then the sheriff or other officer shall be subject to the same judgment with the surety in such bond as if he were cosurety thereon. And the court or judge, being satisfied that such bond is not a sufficient security, may order process to seize the property for which the bond was given; and when seized it shall be dealt with as provided by law upon its seizure in the first instance under attachment.

HISTORY: Codes, 1880, § 2465; 1892, § 158; 1906, § 162; Hemingway’s 1917, § 154; 1930, § 152; 1942, § 2708.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

This section is the exclusive remedy for insufficient bond or security. Atkinson v. Foxworth, 53 Miss. 733, 1876 Miss. LEXIS 142 (Miss. 1876).

§ 11-33-69. Claim of third person to attached property.

All the provisions of law in relation to third persons claiming property levied on by virtue of fieri facias shall extend and apply to claimants of property levied on by virtue of writs of attachment. The trial of the right of property shall not be had until after judgment in favor of the plaintiff in the attachment suit, and proceedings in garnishment shall be in accordance with the provisions of law on that subject.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 14 (5); 1857, ch. 52, art. 38; 1871, § 1456; 1880, § 2640; 1892, § 159; 1906, § 163; Hemingway’s 1917, § 155; 1930, § 153; 1942, § 2709.

Cross References —

Trial of right of property, see §11-23-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Bond.

3. Costs.

4. Evidence.

5. Judgment.

6. Levy.

7. Parties.

8. Pleading.

9. Trial.

1. In general.

Where Mississippi resident did business ostensibly as a Tennessee corporation, and attachment was brought as against Tennessee corporation, resident must intervene and defend as the actual original party defendant, rather than as a third-party claimant, and circuit court properly dismissed her appeal from justice court decision, brought on theory that Tennessee corporation did not exist. Taylor v. Aldridge, 180 Miss. 635, 178 So. 331, 1938 Miss. LEXIS 29 (Miss. 1938).

The facts set out in an affidavit propounding a claim to proceeds of goods, held to present a good claim. Kohlman v. First Nat'l Bank, 71 Miss. 843, 15 So. 131, 1894 Miss. LEXIS 37 (Miss. 1894).

2. Bond.

Claimant of property in proceeding against nonresident and surety on forthcoming bond held not estopped to claim advantage because bond appears to be in replevin. Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872, 1927 Miss. LEXIS 319 (Miss. 1927).

Personal property seized on attachment and delivered to a claimant under a forthcoming bond is no longer in custodia legis and is subject to execution or attachment by creditors of the claimant. Hart v. Livermore Foundry & Mach. Co., 72 Miss. 809, 17 So. 769, 1895 Miss. LEXIS 30 (Miss. 1895).

Where property embraced in a trust deed has been attached at the suit of creditors of a grantor, a claimant’s bond, executed by the trustee, stands in lieu of the property, and a subsequent irregular disposition of the same by the claimant will not render the trust deed fraudulent as to such attaching creditors. Hooker v. Sutcliff, 71 Miss. 792, 15 So. 140, 1894 Miss. LEXIS 45 (Miss. 1894).

If a claimant give bond, and be given the property thereon, and his claim is dismissed for want of the proper affidavit, suit may be maintained on the bond. Higdon v. Vaughn, 58 Miss. 572, 1880 Miss. LEXIS 160 (Miss. 1880).

3. Costs.

It is within the discretion of the court when a claimant’s issue is made in attachment proceedings to require the claimant to file security for costs made by it. Third Nat'l Bank v. Reeves Grocery Co., 113 Miss. 35, 73 So. 866, 1916 Miss. LEXIS 6 (Miss. 1916).

Attorney’s fees and other expenses incurred in sustaining a claimant’s issue for property seized under attachment are not ordinarily recoverable in a suit on an indemnifying bond. Moore v. Lowrey, 74 Miss. 413, 21 So. 237, 1896 Miss. LEXIS 161 (Miss. 1896).

4. Evidence.

Plaintiff cannot show on claimant’s issue that title to property attached as owned by defendant was in fact owned by plaintiff. Forest Lumber Co. v. Lightsey, 136 Miss. 625, 101 So. 689, 1924 Miss. LEXIS 167 (Miss. 1924).

Plaintiff in attachment has the burden of proof on the trial of the claimant’s issue. Third Nat'l Bank v. Reeves Grocery Co., 113 Miss. 35, 73 So. 866, 1916 Miss. LEXIS 6 (Miss. 1916).

On the trial of a claimant’s issue, it is error to instruct that the judgment sustaining the attachment is prima facie evidence against the claimant, and places upon him the burden of showing that he is a bona fide purchaser of the goods attached. As against the claimant, such judgment is not evidence of the facts on which it rests. Ott v. Smith, 68 Miss. 773, 10 So. 70 (Miss. 1891).

In the trial of such issue, judgment in plaintiff’s favor against the defendant in attachment is a part of the record, and need not be offered in evidence. French v. Sale, 60 Miss. 516, 1882 Miss. LEXIS 92 (Miss. 1882).

5. Judgment.

If an attachment issue be found for plaintiff, it is not improper to enter judgment in the usual form, condemning the attached property to the payment of the debt found to be due to plaintiff, although a claimant’s issue is pending; but in such case the judgment will not be executed until the claimant’s issue is disposed of. Montgomery v. Goodbar, 69 Miss. 333, 13 So. 624, 1891 Miss. LEXIS 136 (Miss. 1891).

6. Levy.

Knowledge by a plaintiff and his attorney that a bill of sale of personal property has been executed by the defendant in execution and duly recorded, does not make a levy thereon a wilful wrong. Moore v. Lowrey, 74 Miss. 413, 21 So. 237, 1896 Miss. LEXIS 161 (Miss. 1896).

7. Parties.

Claimants of property levied on and surety became parties to cause and submitted themselves to authority of court. Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872, 1927 Miss. LEXIS 319 (Miss. 1927).

8. Pleading.

Plaintiff’s failure to make issue at return term to try claimant’s right to funds in garnishee’s hands held not to constitute “default.” Piqua Sav. Bank v. Copiah Hardware Co., 146 Miss. 581, 111 So. 836, 1927 Miss. LEXIS 225 (Miss. 1927).

The claimant or intervener in attachment is not required to join issue until final judgment in the attachment. Mahaffey Co. v. Russell & Butler, 100 Miss. 122, 54 So. 807, 1911 Miss. LEXIS 92 (Miss. 1911).

Plaintiff in attachment by joining issue on a claim to the property when filed, waives right to have the claim dismissed as improperly filed. Minshew v. Geo. W. Davidson & Co., 86 Miss. 354, 38 So. 315, 1905 Miss. LEXIS 29 (Miss. 1905).

A claimant cannot on mere motion secure the delivery to him of property attached within four months of the debtor’s adjudication in bankruptcy. There is privity of estate between the debtor and his trustees and the cause must be disposed of on appropriate pleadings. New Orleans Acid & Fertilizer Co. v. Grissom, 79 Miss. 662, 31 So. 336, 1901 Miss. LEXIS 110 (Miss. 1901).

As many claims may be interposed to property seized by attachment and as many issues made up to try the same as may be necessary; and this whether the property remains in court or has been delivered to a claimant on bond. Dreyfus v. Mayer, 69 Miss. 282, 12 So. 267, 1891 Miss. LEXIS 107 (Miss. 1891).

9. Trial.

The word “trial” in the last clause of this section [Code 1942, § 2709] is used in its comprehensive sense and means, not alone that the claimant’s issue shall not be tried until final judgment in the main case, but that such issue is not to be made up until then, the making up of the issue being a part of the “trial” in the broad meaning of the word. White v. Roach, 98 Miss. 309, 53 So. 622, 1910 Miss. LEXIS 63 (Miss. 1910).

When there has been no service of process of any kind of an ancillary writ of attachment, the trial of the claimant’s issue after judgment by default for the debt is premature. Lamb v. Russel, 81 Miss. 382, 32 So. 916, 1902 Miss. LEXIS 122 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Right of successful claimant of property to attorneys’ fees for wrongful attachment. 65 A.L.R.2d 1426.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 506 et seq.

Claims of third persons, 2 Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Forms 491 et seq.

CJS.

7 C.J.S., Attachment §§ 576–578 et seq.

§ 11-33-71. Property in danger of waste to be sold pending suit.

When goods and chattels levied upon under an attachment are in danger of immediate waste and decay, or when live stock, or a stock of goods of any kind, is so levied upon, and the same is not replevied by the defendant or claimant, the officer holding them may sell them as like property is required to be sold under execution. The proceeds of such sale shall be held by the officer to abide the result of the suit, unless replevied. The owner of such goods may replevy the same, as in other cases, at any time before sale, and after sale, the money. If the term of court to which the writ of attachment is returnable commences within fifteen days of the levy, none of the property, except such as may be in danger of immediate waste and decay, shall be sold until after the court is held; and if the cause be continued, the property may then be sold.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (22); 1857, ch. 52, art. 17; 1871, §§ 1466 et seq; 1880, § 2462; 1892, § 160; 1906, § 164; Hemingway’s 1917, § 156; 1930, § 154; 1942, § 2710.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Disposal of property which is not bonded, see §11-29-13.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Railroad crossties, though liable to be burned, are not in danger of “immediate waste and decay.” Goodman v. Moss, 64 Miss. 303, 1 So. 241, 1886 Miss. LEXIS 61 (Miss. 1886).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 471 et seq.

§ 11-33-73. How certain other property may be sold pending suit.

When personal property levied upon under an attachment shall not be subject to sale under the provisions of Section 11-33-71, and the same shall not be replevied by the defendant or claimant within ten days after the levy, the judge or the justice of the peace in whose court the suit may be pending, on the application of any party to the suit, and upon ten days’ notice to all other parties to the suit of the time and place of the hearing, may make an order directing the officer having custody of said property to sell the same, as provided by law for such sales, under execution, and the proceeds of said sale shall be held by such officer to abide the result of the suit unless replevied by the defendant or claimant.

HISTORY: Codes, 1906, § 165; Hemingway’s 1917, § 157; 1930, § 155; 1942, § 2711.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Remedial orders, see §11-7-169.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 471 et seq.

§ 11-33-75. Death of defendant does not abate action.

If the defendant dies after service of the writ of attachment, the action shall not thereby be abated, but may be prosecuted to judgment, sale, transfer, and final determination as if the defendant’s death had not occurred; and all proceedings and conveyances in such case shall be as valid and effectual in law as if had and made in the lifetime of defendant.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (28); 1857, ch. 52, art. 39; 1871, § 1486; 1880, § 2466; 1892, § 161; 1906, § 166; Hemingway’s 1917, § 158; 1930, § 156; 1942, § 2712.

Cross References —

Effect of death of party to action, generally, see §11-7-29.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

If the administrator appear, or be brought into court, a judgment in personam may be rendered against him as such. Lowenberg v. Tironi, 62 Miss. 19, 1884 Miss. LEXIS 7 (Miss. 1884).

The administrator of the deceased defendant may appear, whether the deceased was or was not served. Dyson v. Baker, 54 Miss. 24, 1876 Miss. LEXIS 5 (Miss. 1876).

The object of the section [Code 1942, § 2712] is to authorize the court, after the attachment was served, notwithstanding the death of defendant, to proceed to judgment and sale, or final process, against the garnishee and property attached. For those purposes, and to that extent, the process is strictly in rem. Holman v. Fisher, 49 Miss. 472, 1873 Miss. LEXIS 135 (Miss. 1873).

RESEARCH REFERENCES

ALR.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process. 40 A.L.R.2d 1111.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment § 369.

§ 11-33-77. The declaration and subsequent pleadings.

The declaration may be filed on or before the return day of the attachment or before an order of dismissal be taken; and the defendant shall plead thereto as in other cases.

HISTORY: Codes, 1880, § 2441; 1892, § 162; 1906, § 167; Hemingway’s 1917, § 159; 1930, § 157; 1942, § 2713.

Cross References —

Declaration or bill, see §11-1-45.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Section 1475.5, Code of 1942, has supplanted this section [§ 2713] and § 2716, Code of 1942, as well as other sections of the Code dealing with pleas in abatement, and has also supplanted the common-law rules dealing with such pleas. Home Ins. Co. v. Watts, 229 Miss. 735, 91 So. 2d 722, 1957 Miss. LEXIS 321 (Miss. 1957).

This section [Code 1942, § 2713], providing that when there is a plea in abatement there shall be no plea to the merits until the issue of abatement has been disposed of, and Code 1942, § 2716, providing for the empanelling of a jury to try the issue of abatement, are supplanted by Laws 1948, ch. 230 [Code 1942, § 1475.5] abolishing pleas in the circuit court and providing for all defenses, whether consistent or not, to be set out in an answer, to the extent that separate hearings on distinct, separable defenses are left to the judicial discretion of the trial court. Christopher v. Brown, 211 Miss. 322, 51 So. 2d 579, 1951 Miss. LEXIS 359 (Miss. 1951).

Where the trial court tries attachment and debt issues together and both sides acquiesced by not making any objection, any error in this joinder was waived. Christopher v. Brown, 211 Miss. 322, 51 So. 2d 579, 1951 Miss. LEXIS 359 (Miss. 1951).

Where the declaration for the debt was defective in failing to allege the amount due, neither a motion to strike it from the files on the theory that it was legally insufficient in substance nor motion to quash the attachment on the same grounds was the proper method for presenting the question. Kehlor Flour Mills Co. v. Reeves Grocery Co., 113 Miss. 30, 73 So. 866, 1916 Miss. LEXIS 5 (Miss. 1916).

The attachment may be against one debtor and the declaration in the cause be against several, provided the debt owing by the debtors not attached be due when the declaration is filed against them. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

§ 11-33-79. Judgment by default.

If the defendant shall not appear and plead to the action, in pursuance of notice, the court, as in other cases, shall give judgment against him by default, and award a writ of inquiry if necessary; but on such judgment by default, unless granted on the service of summons executed in this state, no execution shall issue except against the property on which the attachment has been served, or against a garnishee who shall have money or property in his hands belonging to the defendant.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (25); 1857, ch. 52, art. 21; 1871, § 1477; 1880, § 2467; 1892, § 163; 1906, § 168; Hemingway’s 1917, § 160; 1930, § 158; 1942, § 2714.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Plaintiff’s failure to make issue at return term to try claimant’s right to funds in garnishee’s hands held not to constitute “default.” Piqua Sav. Bank v. Copiah Hardware Co., 146 Miss. 581, 111 So. 836, 1927 Miss. LEXIS 225 (Miss. 1927).

Sale without giving bond on default decree, in attachment against nonresident on publication, is void. Seay v. Wofford, 141 Miss. 888, 106 So. 751, 1926 Miss. LEXIS 443 (Miss. 1926).

Where there has been no service of process of any kind of an ancillary writ of attachment, the trial of a claimant’s issue after judgment by default for the debt is premature. Lamb v. Russel, 81 Miss. 382, 32 So. 916, 1902 Miss. LEXIS 122 (Miss. 1902).

A judgment for the debt in attachment should be set aside for want of jurisdiction when there has been no levy upon property or garnishment in the county where the action was brought, although an alias writ of attachment has been served upon the defendant as a summons in another county where he resides. Campbell v. Triplett, 74 Miss. 365, 20 So. 844, 1896 Miss. LEXIS 112 (Miss. 1896).

Although judgment for plaintiff is entered on the attachment for want of a plea in abatement, yet if the debt issue is decided for defendant, this is conclusive evidence that the attachment was wrongfully sued out and defendant has a right of action for damages on the attachment-bond. Buckly v. Van Diver, 70 Miss. 622, 12 So. 905 (Miss. 1893).

Where judgment by default on the attachment issue is rendered for plaintiff, but the issue made by the plea denying the debt is found for defendant, thus dissolving the attachment, the defendant is not entitled to a writ of inquiry to assess his damages for the wrongful suing out of the attachment. Betancourt v. Maduel, 69 Miss. 839, 11 So. 111, 1892 Miss. LEXIS 6 (Miss. 1892).

Such writ of inquiry is allowed only where the issue on a plea in abatement is found for defendant, or where plaintiff voluntarily dismisses his attachment. Betancourt v. Maduel, 69 Miss. 839, 11 So. 111, 1892 Miss. LEXIS 6 (Miss. 1892).

Nor can a personal judgment be sustained by service of process in another state. Cudabac v. Strong, 67 Miss. 705, 7 So. 543, 1890 Miss. LEXIS 126 (Miss. 1890).

The attachment may be against one debtor and the declaration in the cause be against several, provided the debt owing by the debtors not attached be due when the declaration is filed against them. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

Although a judgment by default against a nonresident be personal in form, it cannot, if he were notified by publication only, affect any of his property except that attached and condemned. Tabler, Crudup & Co. v. Mitchell, 62 Miss. 437, 1884 Miss. LEXIS 100 (Miss. 1884).

A judgment against a defendant in an attachment case is, in legal effect, a judgment of condemnation ordering the sale of the property attached, and no formal order for sale in the judgment is necessary. Sale v. French, 61 Miss. 170, 1883 Miss. LEXIS 98 (Miss. 1883).

RESEARCH REFERENCES

ALR.

What amounts to “appearance” under statute or rule requiring notice, to party who has “appeared,” of intention to take default judgment. 73 A.L.R.3d 1250.

§ 11-33-81. Defendant may defend without replevying property.

The defendant in attachment may appear, without replevying the property attached, and defend the suit as in other actions for the recovery of money. In case the defendant shall have been personally summoned, or shall appear and plead to the action, the judgment therein shall have the same force and effect against the person and property of the defendant as in other actions where a summons has been personally served on him. Such appearance shall not vacate or affect any bond taken hereunder, nor discharge any garnishee, nor affect any lien created by the attachment; but the proceedings in respect to any property attached, or any garnishee summoned, shall be the same as if final judgment had been entered by default.

HISTORY: Codes, 1857, ch. 52, art. 20; 1871, § 1476; 1880, § 2436; 1892, § 164; 1906, § 169; Hemingway’s 1917, § 161; 1930, § 159; 1942, § 2715.

Cross References —

Attachment against nonresidents, see §11-31-9.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Defendant in attachment suit may file counterclaim for actual damages and attorney’s fee. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Notwithstanding defendant in attachment has enjoined various creditors from proceeding with their suits in so far as to disturb his possession of certain property claimed to be in custodia legis in other proceedings, they may proceed to obtain personal judgments, and if the defendant fails to defend on the merits, he is bound by such judgments. Hart v. Livermore Foundry & Mach. Co., 72 Miss. 809, 17 So. 769, 1895 Miss. LEXIS 30 (Miss. 1895).

§ 11-33-83. Answer traversing truth of alleged attachment grounds; trial of issue.

The defendant in attachment may, as a defense in his answer, traverse the truth of the alleged grounds upon which the attachment was sued out. Upon such defense being filed, the court, in its discretion, upon motion of either or any party, may order a jury to be empaneled to try the issue, or it may submit such issue to the jury empaneled to try the case on its merits. If the jury shall find for the defendant, it shall assess damages against the plaintiff for wrongfully suing out the same.

HISTORY: Codes, 1857, ch. 52, art. 14; 1871, § 1459; 1880, § 2429; 1892, § 165; 1906, § 170; Hemingway’s 1917, § 162; 1930, § 160; 1942, § 2716.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Evidence.

3. Setoff or counterclaim.

4. Assessment of damages.

1. In general.

Section 1475.5, Code 1942, has supplanted this section [§ 2716] and § 2713, Code of 1942, as well as other sections of the Code dealing with pleas in abatement, and has also supplanted the common-law rules dealing with such pleas. Home Ins. Co. v. Watts, 229 Miss. 735, 91 So. 2d 722, 1957 Miss. LEXIS 321 (Miss. 1957).

The provisions of this section [Code 1942, § 2716], providing for the empanelling of a jury to try the issue raised by a plea in abatement, and Code 1942, § 2713, providing that no plea to the action shall be made until the issue raised by a plea in abatement of the attachment shall be disposed of, are supplanted by Laws 1948, ch. 230 [Code 1942, § 1475.5], which abolishes pleas in the circuit court and provides for every defense, whether consistent or not, to be set out in an answer, to the extent that the granting of separate hearings on particular, distinct and separable offenses is left to the judicial discretion of the trial court. Christopher v. Brown, 211 Miss. 322, 51 So. 2d 579, 1951 Miss. LEXIS 359 (Miss. 1951).

Where the trial court tries attachment and debt issues together and both sides acquiesced by not making any objection, any error in this joinder was waived. Christopher v. Brown, 211 Miss. 322, 51 So. 2d 579, 1951 Miss. LEXIS 359 (Miss. 1951).

In an action on an account begun by attachment, the question whether the debt was due cannot be raised where not set up by a plea in abatement. Lee v. McConnell, 109 Miss. 839, 69 So. 706, 1915 Miss. LEXIS 232 (Miss. 1915).

A denial of the ground of attachment in a plea in abatement is not a denial of indebtedness so as to make them an issue on the trial of the right to attach. Anderson v. Dever, 109 Miss. 235, 68 So. 166, 1915 Miss. LEXIS 141 (Miss. 1915).

Since to authorize an attachment against a debtor on the ground of nonresidence the debt must be due, a plea in abatement that it was not due when suit was begun is sufficient. Stadder v. Jacobs, 70 Miss. 429, 12 So. 444 (Miss. 1892).

Unless the question is one of the defendant’s estoppel to deny the ground of attachment, plaintiff’s belief as to defendant’s solvency or the truth of the grounds of attachment is immaterial. Stadder v. Jacobs, 70 Miss. 429, 12 So. 444 (Miss. 1892).

If an attachment issue be found for plaintiff, it is not improper to enter judgment in the usual form condemning the attached property to the payment of the debt found to be due to plaintiff, although a claimant’s issue is pending; but in such case the judgment will not be executed until the claimant’s issue is disposed of. Montgomery v. Goodbar, 69 Miss. 333, 13 So. 624, 1891 Miss. LEXIS 136 (Miss. 1891).

Special allegations in the plea, if the plea deny the grounds, do not vitiate it; but the traverse should be a simple denial. Ross v. Fowler, 42 Miss. 293, 1868 Miss. LEXIS 64 (Miss. 1868).

The issue is whether or not the attachment was rightfully sued out, and not whether the matters of fact stated in the affidavit are true or false. The doctrine of estoppel applies. Cocke v. Kuykendall, 41 Miss. 65, 1866 Miss. LEXIS 8 (Miss. 1866).

2. Evidence.

Evidence held to warrant peremptory instruction that attachment was wrongfully sued out. Turner v. Crane, 115 Miss. 134, 75 So. 945, 1917 Miss. LEXIS 192 (Miss. 1917).

On plea of abatement to attachment on the ground of concealment and fraudulent disposition and conversion of property, testimony of ability to pay does not entitle the defendant to a peremptory instruction. Anderson v. Dever, 109 Miss. 235, 68 So. 166, 1915 Miss. LEXIS 141 (Miss. 1915).

On the trial of the attachment issue, the plaintiff’s affidavit having alleged fraudulent conduct of the debtor, evidence of the latter’s rating or want of rating by commercial agencies, unconnected with any conduct of the debtor on which it was based, was properly excluded as irrelevant. Lowenstein v. Aaron, 69 Miss. 341, 12 So. 269, 1891 Miss. LEXIS 108 (Miss. 1891).

3. Setoff or counterclaim.

Defendant in attachment suit may file counterclaim for actual damages and attorney’s fee. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Appeal is authorized from judgment in attachment and garnishment of less than $50.00 where counterclaim for damages after deducting judgment exceeded $50.00. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Where defendant recovers a judgment for damages, and plaintiff’s action thereby abates, and the assignee of such judgment seeks to enforce it, plaintiff, though his claim has meantime become barred, the defendant being insolvent, may resort to equity to enforce his right conferred by Code 1880, § 2687, to use said claim defensively as an offset against the judgment. Feld v. Coleman, 72 Miss. 545, 17 So. 378, 1895 Miss. LEXIS 15 (Miss. 1895).

4. Assessment of damages.

Defendant is only entitled to a writ of inquiry where the issue on a plea in abatement is found for him, or where the plaintiff dismisses his attachment. Betancourt v. Maduel, 69 Miss. 839, 11 So. 111, 1892 Miss. LEXIS 6 (Miss. 1892).

RESEARCH REFERENCES

ALR.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process. 40 A.L.R.2d 1111.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 374, 537, 541, 542, 549, 551.

CJS.

7 C.J.S., Attachment §§ 505-513.

§ 11-33-85. Answer traversing truth of alleged attachment grounds; damages in favor of defendant.

On the trial of the issue of the truth of the alleged attachment grounds, the defendant may introduce evidence as to the actual damages, if any, which the issuance of the attachment has occasioned him; but the defendant, when he files his answer setting up the defense traversing the truth of the alleged attachment grounds, shall file therewith written notice of what damages he will insist upon at the trial. If the issue be decided for the defendant, he shall have judgment that the attachment be discharged and against plaintiff and the sureties in his attachment bond, for the damages assessed by the jury and the costs of suit; and the jury may add to the actual damages found a reasonable sum as an attorney’s fee for defending the issue; but the judgment against the sureties in the attachment bond shall not exceed the penalty thereof.

HISTORY: Codes, 1857, ch. 52, art. 14; 1871, § 1462; 1880, § 2430; 1892, § 166; 1906, § 171; Hemingway’s 1917, § 163; 1930, § 161; 1942, § 2717.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Measure and elements of damages.

1. In general.

This section clearly provides that the testing of the grounds of attachment shall be in the court initiating the suit and that actual damages shall be proved in that court. Failure of garnishee to follow proper procedure entitled the creditor to a peremptory instruction in the garnishee’s action for wrongful garnishment. Tower Loan Brokers, Inc. v. Davis, 320 So. 2d 770, 1975 Miss. LEXIS 1497 (Miss. 1975).

Appeal is authorized from judgment in attachment and garnishment of less than $50 where counterclaim for damages after deducting judgment exceeded $50. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

A defendant in wrongful attachment is entitled to have his damages assessed on writ of inquiry if the question of indebtedness be decided in his favor, though the grounds of attachment were not contested. R. J. McLin & Co. v. Worden, 99 Miss. 547, 55 So. 358, 1911 Miss. LEXIS 229 (Miss. 1911).

Where an attachment, though based on nonresidence of defendant, was improperly sued out because there was no debt, under Code 1892, § 166, defendant may have judgment on the bond in the attachment suit without resort to an independent action. C. M. Carrier & Son v. Poulas, 87 Miss. 595, 40 So. 164, 1905 Miss. LEXIS 187 (Miss. 1905).

Defendant is not entitled to a writ of inquiry to assess his damages for the wrongful suing out of the attachment except where the issue on a plea in abatement is found for him, or where plaintiff voluntarily dismisses his attachment. Betancourt v. Maduel, 69 Miss. 839, 11 So. 111, 1892 Miss. LEXIS 6 (Miss. 1892).

The jury has as large a scope to consider the damages on a plea traversing the grounds of attachment as in a suit on the attachment bond. Fleming & Baldwin v. Bailey, 44 Miss. 132, 1870 Miss. LEXIS 93 (Miss. 1870); Marqueze v. Sontheimer, 59 Miss. 430, 1882 Miss. LEXIS 130 (Miss. 1882).

2. Measure and elements of damages.

Jury may not assess nominal damages where proof discloses actual damages. Levy v. J. A. Olson Co., 237 Miss. 452, 115 So. 2d 296, 1959 Miss. LEXIS 489 (Miss. 1959).

It is defendant’s duty to reduce damages by giving bond and retaining possession of attached property. Levy v. J. A. Olson Co., 237 Miss. 452, 115 So. 2d 296, 1959 Miss. LEXIS 489 (Miss. 1959).

Person incurring attorney’s fees in bringing suit for damages for attachment for rent is entitled to recover therefor. Wigginton v. Moore, 147 Miss. 169, 113 So. 326, 1927 Miss. LEXIS 346 (Miss. 1927).

Defendant in attachment suit may file counterclaim for actual damages and attorney’s fee. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Damages of a remote and speculative character cannot be received for the wrongful suing out of attachment. Turner v. Crane, 115 Miss. 134, 75 So. 945, 1917 Miss. LEXIS 192 (Miss. 1917).

Loss of business, as to goods attached, caused by the attachment, may be a factor in estimating damages, if proved as a matter of fact and not as a mere opinion or estimate of witnesses. Marqueze v. Sontheimer, 59 Miss. 430, 1882 Miss. LEXIS 130 (Miss. 1882).

Damages resulting from a levy by judgment creditors, subsequent to the levy of an attachment, made in consequence of the attachment, cannot be recovered of the attaching plaintiff. Marqueze v. Sontheimer, 59 Miss. 430, 1882 Miss. LEXIS 130 (Miss. 1882).

Compensation is the measure of damages. Marqueze v. Sontheimer, 59 Miss. 430, 1882 Miss. LEXIS 130 (Miss. 1882).

Where there is no malice or intent to oppress, the damages should be limited to those actually sustained; mere possible expectations of profits are not to be considered. Myers v. Farrell, 47 Miss. 281, 1872 Miss. LEXIS 75 (Miss. 1872).

The extent of the depreciation in value between the time property was attached, and the time the attachment is quashed or the property is restored, is the measure of the actual damages for preventing a sale of the property. Fleming & Baldwin v. Bailey, 44 Miss. 132, 1870 Miss. LEXIS 93 (Miss. 1870).

RESEARCH REFERENCES

ALR.

Right to attorneys’ fees for wrongful attachment. 65 A.L.R.2d 1426.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment. 61 A.L.R.3d 984.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Am. Jur.

2 Am. Jur. Proof of Facts, Attachment, Proof No. 1 (Wrongful attachment).

§ 11-33-87. Answer traversing truth of alleged attachment grounds—effect of decision in plaintiff’s favor.

If the issue on the defense traversing the truth of the alleged attachment grounds be decided for plaintiff, the defendant shall be permitted to go on to trial of the merits upon his answer as a whole.

HISTORY: Codes, 1857, ch. 52, art. 14; 1871, § 1464; 1880, § 2431; 1892, § 169; 1906, § 174; Hemingway’s 1917, § 166; 1930, § 163; 1942, § 2719.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The defendant cannot plead to the merits without waiving his plea in abatement. Lewenthall v. Mississippi Mills, 55 Miss. 101, 1877 Miss. LEXIS 112 (Miss. 1877).

§ 11-33-89. Property assessment and judgment in certain cases.

If the personal property attached, or any part thereof, shall have been replevied by the defendant, the court or jury trying the issue between the parties, if it find for the plaintiff, shall assess the value of the property so replevied by the defendant, as well as the debt or damages due the plaintiff. If the value of the property shall equal the amount found due the plaintiff, judgment shall be entered against the defendant and his sureties in such replevin bond, for the amount of said value. If the value of the property be less than the amount found due the plaintiff, judgment shall be entered against the defendant for the amount of the verdict, and against the sureties in his replevin bond for the value of the property so replevied. If judgment by default shall be entered in such case against the defendant, an inquiry shall be awarded to assess the value of the property so replevied; and on the execution thereof judgment shall be rendered as above provided. In all cases, the judgment against the sureties of the defendant shall be satisfied and discharged by the delivery to the sheriff of the property replevied within ten days after execution on such judgment shall have come to his hands; and the sheriff shall sell the property so delivered to him, and apply the proceeds to the payment of the execution.

HISTORY: Codes, 1857, ch. 52, art. 9; 1871, § 1448; 1880, § 2455; 1892, § 167; 1906, § 172; Hemingway’s 1917, § 164; 1930, § 162; 1942, § 2718.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Rendering decree on forthcoming bond for penalty without finding value of automobile claimed thereunder held erroneous. Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872, 1927 Miss. LEXIS 319 (Miss. 1927).

Where the attachment is levied on various articles which are replevied, the value of each article separately should be assessed. Thomason v. Wadlington, 53 Miss. 560, 1876 Miss. LEXIS 115 (Miss. 1876); Atkinson v. Foxworth, 53 Miss. 733, 1876 Miss. LEXIS 142 (Miss. 1876).

The sureties, when it is proposed to enter judgment against them, may show any reason, good in law, why the bond should not be declared forfeited; they may show that it is impossible to return animals bonded, because they had died without the fault or negligence of their principal. Atkinson v. Foxworth, 53 Miss. 741, 1876 Miss. LEXIS 143 (Miss. 1876).

Plaintiff cannot take judgment in the attachment against the defendant only, the principal in the bond, and afterwards bring a separate action against the sureties. McKinney v. Green, 52 Miss. 70, 1876 Miss. LEXIS 165 (Miss. 1876).

If the value of the property be not assessed, it is error to render judgment for the whole of plaintiff’s demand against the sureties. Phillips v. Harvey, 50 Miss. 489, 1874 Miss. LEXIS 81 (Miss. 1874).

A failure to comply with the statute vitiates the verdict. Young v. Pickens & Green, 45 Miss. 553, 1871 Miss. LEXIS 101 (Miss. 1871); Bedon v. Alexander, 47 Miss. 254, 1872 Miss. LEXIS 70 (Miss. 1872).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 494 et seq.

CJS.

7 C.J.S., Attachment §§ 543, 544-548.

§ 11-33-91. Voluntary dismissal and damages.

The plaintiff may dismiss his attachment, but defendant shall have a jury impanelled forthwith to assess the damages sustained by reason of suing out the attachment.

HISTORY: Codes, 1871, § 1465; 1880, § 2432; 1892, § 168; 1906, § 173; Hemingway’s 1917, § 165; 1930, § 164; 1942, § 2720.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

When the issue in abatement is found against several defendants, and the plaintiff, failing to establish his debt as to one, dismisses as to him, the judgment on plea in abatement is thereby vacated as to this defendant, and he is entitled to have his damages assessed. Dean v. Stephenson, 61 Miss. 175, 1883 Miss. LEXIS 99 (Miss. 1883).

If such defendant fail to ask for damages or make claim for the property or its proceeds, he can neither obtain a new trial nor appeal. Dean v. Stephenson, 61 Miss. 175, 1883 Miss. LEXIS 99 (Miss. 1883).

RESEARCH REFERENCES

ALR.

Effect of nonsuit, dismissal, or discontinuance of action on previous orders. 11 A.L.R.2d 1407.

§ 11-33-93. Judgment in case debt not due.

In determining the amount for which judgment shall be rendered on the merits in favor of plaintiff whose debt is not due, interest shall not be computed on the principal for a time beyond the rendition of the judgment; and if the debt do not bear interest until a future day, the principal shall be discounted for the time to elapse before interest begins, at the rate at which the debt will bear interest. Such judgments shall be enforced as in other cases.

HISTORY: Codes, 1892, § 170; 1906, § 175; Hemingway’s 1917, § 167; 1930, § 165; 1942, § 2721.

Cross References —

Attachment for debt not due, see §11-33-35.

Bond to discharge attachment for a debt not due, see §11-33-63.

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-33-95. Judgment for damages pleadable as payment.

The judgment in favor of the defendant against the plaintiff for the damages assessed and the costs may be pleaded by the defendant as a payment in the same action, or in any other suit on the same cause of action on which the attachment was sued out. An execution shall not be issued on such judgment until after the dismissal of the action or final judgment on the merits. If the action be dismissed, or if, upon a trial on the merits, judgment be in favor of the defendant, without his having obtained the benefit of the judgment in his favor for damages and costs, he shall have execution of said judgment in his favor. If the plaintiff recover in the trial on the merits, and on such trial the defendant did not avail of his judgment against the plaintiff for damages and costs, the greater recovery shall be credited with the sum of the smaller, and judgment shall be rendered by the court in favor of the party to whom the difference may be due.

HISTORY: Codes, 1880, § 2433; 1892, § 171; 1906, § 176; Hemingway’s 1917, § 168; 1930, § 166; 1942, § 2722.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where defendant recovers a judgment for damages, and plaintiff’s action thereby abates and the assignee of such judgment seeks to enforce it, plaintiff though his claim has meantime become barred, the defendant being insolvent, may resort to equity to enforce his right conferred by § 2756 Code 1880, to use said claim defensively as an offset against the judgment. Feld v. Coleman, 72 Miss. 545, 17 So. 378, 1895 Miss. LEXIS 15 (Miss. 1895).

§ 11-33-97. Discharge of attachment not to affect action.

If the issue on the defense traversing the truth of the alleged attachment grounds be found for the defendant, the attachment shall be thereby discharged, and all property seized under it, and all persons summoned as garnishees, shall be released from it; but the action, unless dismissed by the plaintiff, shall be proceeded with in all respects as if it had been an ordinary action in its commencement; and the costs accruing in it, after the trial of the issue on the said defense, shall abide the result of such action.

HISTORY: Codes, 1880, § 2434; 1892, § 172; 1906, § 177; Hemingway’s 1917, § 169; 1930, § 167; 1942, § 2723.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

An action commenced by attachment shall not be dismissed over the objection of the plaintiff when the issue on a plea in abatement is found for the defendant, but should be proceeded with as if it had been an ordinary action in the commencement. McCormick v. Hawks, 131 Miss. 111, 95 So. 241, 1922 Miss. LEXIS 275 (Miss. 1922).

This section [Code 1942, § 2723] does not apply if the attachment be so utterly void as not to be amendable, and there was no trial on a plea in abatement, no summons and no appearance of the defendant save to object to the void attachment. Wood v. Bailey, 77 Miss. 815, 27 So. 1001, 1900 Miss. LEXIS 46 (Miss. 1900).

§ 11-33-99. Attachment preserved by appeal.

If the plaintiff, within ten days after the expiration of the term of the court at which judgment is rendered discharging his attachment, shall perfect an appeal from such judgment, the attachment shall not be discharged, nor garnishees nor property released therefrom, by such judgment; but such appeal shall preserve the attachment in full force, to await the result of the appeal.

HISTORY: Codes, 1880, § 2435; 1892, § 173; 1906, § 178; Hemingway’s 1917, § 170; 1930, § 168; 1942, § 2724.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

There is no statute such as this section [Code 1942, § 2724], which preserves the status quo of an attachment in chancery after an appeal has been taken. General Acceptance Corp. v. Holbrook, 189 So. 2d 923, 1966 Miss. LEXIS 1385 (Miss. 1966).

This section [Code 1942, § 2724] authorizes an appeal, and provides for the effect thereof, only in the case discharging the attachment. Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 199 So. 270, 1940 Miss. LEXIS 189 (Miss. 1940). But see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

This section [Code 1942, § 2724] does not authorize an appeal from an order or a judgment vacating a writ of garnishment and dismissing the suit as to a garnishee where the garnishment is issued as a part of an attachment writ in a suit which is still pending in the trial court at the time the appeal is allowed. Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 199 So. 270, 1940 Miss. LEXIS 189 (Miss. 1940). But see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Judgment for defendant on plea in abatement in attachment is appealable, though appeal is not taken within ten days after adjournment of the term. Chas. Brooks & Co. v. Gentry, 108 Miss. 447, 66 So. 812, 1914 Miss. LEXIS 214 (Miss. 1914).

And if not prosecuted within the specified time, the lien is discharged. Lowenstein v. Powell, 68 Miss. 73, 8 So. 269, 1890 Miss. LEXIS 8 (Miss. 1890).

The statute must be fully complied with or the lien will be discharged. If the appeal bond has but one surety, when two are required, the lien will not be preserved. Pfiefer & Dreyfus v. Hartman, 60 Miss. 505, 1882 Miss. LEXIS 90 (Miss. 1882).

§ 11-33-101. Intervention by other creditors.

Any creditor of the defendant in attachment, upon filing a petition under oath, averring that he is a creditor, and that the grounds of attachment alleged are untrue, or that the attachment was sued out by collusion between the plaintiff and the defendant, or that the debt claimed by the defendant is fictitious or simulated, in whole or in part, or any other fact showing fraud or collusion in suing out the attachment, may intervene and make defense, and in such case the facts stated in the petition shall be tried; but the intervening creditor must give bond, payable to the plaintiff, in such penalty and with such sureties as the court or judge may prescribe, conditioned to pay the costs of the trial in case the issue be found against him.

HISTORY: Codes, 1892, § 174; 1906, § 179; Hemingway’s 1917, § 171; 1930, § 169; 1942, § 2725.

Cross References —

Intervention of creditors in an attachment action instituted against the debtor, see Miss. R. Civ. P. 24.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The intervener cannot defeat the whole attachment by showing that a part only of the debt is not due, the purpose of the section [Code 1942, § 2725] being to afford him protection only to the extent that he avers and proves that the debt is not due. First Nat'l Bank v. Solomon, 71 Miss. 889, 16 So. 302, 1894 Miss. LEXIS 28 (Miss. 1894).

The issue presented is between the intervener, proceeding in his own name, and the plaintiff. Defendant is not a party, and is not concluded by a judgment in favor of plaintiff as against the intervener. First Nat'l Bank v. Solomon, 71 Miss. 889, 16 So. 302, 1894 Miss. LEXIS 28 (Miss. 1894).

Creditors may proceed in the chancery court to vacate attachments fraudulently sued out through collusion with the debtor, and to subject the attached property to their demands, notwithstanding they have a remedy at law by intervening and contesting the attachments. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

A creditor intervening cannot object to the insufficiency of the declaration or the absence of an itemized account. The truth of the allegations of the petition is the only issue to be tried. First Nat'l Bank v. Cochran, 71 Miss. 175, 14 So. 439, 1893 Miss. LEXIS 167 (Miss. 1893); First Nat'l Bank v. Solomon, 71 Miss. 889, 16 So. 302, 1894 Miss. LEXIS 28 (Miss. 1894).

On the trial of the attachment issue, the plaintiff’s affidavit having alleged fraudulent conduct of the debtor, evidence of the latter’s rating or want of rating by commercial agencies, unconnected with any conduct of the debtor on which it was based, was properly excluded as irrelevant. Lowenstein v. Aaron, 69 Miss. 341, 12 So. 269, 1891 Miss. LEXIS 108 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Right of successful intervener or claimant of property to attorneys’ fees for wrongful attachment. 65 A.L.R.2d 1426.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 509- 519.

CJS.

7 C.J.S., Attachment §§ 576–578 et seq.

§ 11-33-103. But one trial.

But one trial shall be allowed under the provisions of Section 11-33-101, unless the petitions of the intervenors present different issues; and if the judgment be in favor of the intervening creditor, he shall recover of the plaintiff and his sureties the costs of suit, and the attachment shall be dissolved.

HISTORY: Codes, 1892, § 175; 1906, § 180; Hemingway’s 1917, § 172; 1930, § 170; 1942, § 2726.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Lack or insufficiency of allegations of plaintiff’s residence or domicil as ground for vacation of, or collateral attack on, divorce decree. 55 A.L.R.2d 1263.

§ 11-33-105. Proceedings before justice court judge.

Justice court judges shall have cognizance of attachments in all cases where the amount in controversy is within their jurisdiction. In such case, the notice to a defendant not found shall require the appearance of the defendant at some reasonable time, to be fixed by the judge, not less than one (1) month after the return day of the attachment, and shall be transmitted by such judge by mail to the defendant at his post office, when stated. Such notice shall not be published in a newspaper, but shall be posted in three (3) public places, where they will be likely to be seen by persons in the county of the justice court judge, three (3) weeks before the time for the appearance of the defendant. Such mailing and posting, or posting alone when the post office is not stated, shall be in lieu of publication in a newspaper in attachments before a justice court judge, and shall authorize such further proceedings as are provided for in other cases of publication.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (13); 1857, ch. 52, art. 41; 1871, § 1481; 1880, § 2472; 1892, § 176; 1906, § 181; Hemingway’s 1917, § 173; 1930, § 171; 1942, § 2727; Laws, 1981, ch. 471, § 36; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Proceedings in replevin, attachment, and enforcement of liens, see §11-9-135.

Writ in attachment proceedings, see §§11-33-17,11-33-19.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

On direct attack on judgment against defendant in attachment, defendant has burden to show meritorious defense and that statutory notices were not, in fact, posted. Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 1934 Miss. LEXIS 132 (Miss. 1934).

Failure to establish by proof that defendant received notice of attachment proceedings while she was nonresident of State held not to affect validity of proceedings under attachment, where proof showed that notice of attachment was properly mailed to her true address. Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717, 1934 Miss. LEXIS 132 (Miss. 1934).

Where judgment of justice of peace in attachment proceeding adjudicated that notice was given to nonresident defendant by mail addressed to post office address, there was no presumption that service of notice was completed by posting notices. Wentworth v. Flowers, 163 Miss. 39, 139 So. 624, 1932 Miss. LEXIS 14 (Miss. 1932).

Where judgment in attachment proceeding in justice of peace court was not based on sufficient notice to nonresident defendant to require his appearance, it was void, and sale conferred no title on purchaser. Wentworth v. Flowers, 163 Miss. 39, 139 So. 624, 1932 Miss. LEXIS 14 (Miss. 1932).

A justice of the peace has jurisdiction to issue the writ and try the cause in an attachment suit against a nonresident, although the only property attached is in another district of the county; and this, too, where there is a qualified and acting justice in such other district. Griggs v. Jesse French Piano & Organ Co., 70 Miss. 211, 14 So. 24, 1892 Miss. LEXIS 143 (Miss. 1892).

If plaintiff loses an attachment suit in a justice court and appeals, the circuit court has jurisdiction, though after dismissal by the plaintiff, to allow claimant’s issues to be made up and tried, although no trial thereof was had in the justice court, for the appeal of the plaintiff on the main ground carries with it all such ancillary issues as are necessary to determine the proper disposition of the property. Dreyfus v. Mayer, 69 Miss. 282, 12 So. 267, 1891 Miss. LEXIS 107 (Miss. 1891).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 11.

CJS.

51 C.J.S., Justices of the Peace § 83.

§ 11-33-107. Trial before justice of the peace.

On the return of an attachment before a justice of the peace, the defendant may file an affidavit, or plea sworn to, traversing the grounds on which the attachment was sued out, and the justice shall hear all evidence adduced by either party, as to whether said attachment was wrongfully sued out or not; and, if the same was wrongfully sued out, he shall dismiss the attachment, with costs, and shall give judgment against the plaintiff for such damages as the defendant may have sustained by the wrongful suing out of said attachment, and shall proceed to hear the case on the merits.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (24); 1857, ch. 52, art. 42; 1880, § 2474; 1892, § 177; 1906, § 182; Hemingway’s 1917, § 174; 1930, § 172; 1942, § 2728.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Money paid into the justice court clerk clearing account, see §9-11-18.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d, Justices of the Peace § 11.

CJS.

51 C.J.S., Justices of the Peace § 83.

Chapter 35. Garnishment

§ 11-35-1. When issued on judgment or decree.

On the suggestion in writing by the plaintiff in a judgment or decree in any court upon which an execution may be issued, that any person, either natural or artificial, including the state, any county, municipality, school district, board or other political subdivision thereof, is indebted to the defendant therein, or has effects or property of the defendant in his, her or its possession, or knows of some other person who is indebted to the defendant, or who has effects or property of the defendant in his, her or its possession, it shall be the duty of the clerk of such court to issue a writ of garnishment, directed to the sheriff or proper officer, commanding him to summon such person, the state, county, municipality, school district, board or other political subdivision thereof, as the case may be, as garnishee to appear at the term of court to which the writs of garnishment may be returnable, to answer accordingly.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 7 (1); 1857, ch. 61, art. 313; 1871, § 874; 1880, § 1738; 1892, § 2130; 1906, § 2337; Hemingway’s 1917, § 1932; 1930, § 1838; 1942, § 2783; Laws, 1936, ch. 321; Laws, 1990, ch. 378, § 1, eff from and after July 1, 1990.

Cross References —

Fieri facias or garnishment on decrees for money, see §11-5-81.

Judgments in circuit court, see §11-7-169 et seq.

Form of writ of garnishment on a judgment or decree, see §11-35-5.

Execution and garnishment on certain judgments and decrees of other courts, see §13-3-155.

Provisions relative to orders for withholding amounts of overdue child support payments from income of obligors, see §§93-11-101 through93-11-119.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Nature and effect of proceeding.

3. Suggestion of garnishment.

4. Service and return of process.

5. Persons subject to garnishment.

6. State and municipal corporations.

7. —Under prior law.

8. Property subject to garnishment.

9. —Partnership property.

10. —Debt due several persons jointly.

11. —Property in hands of agent.

12. —Property in custody of the law.

13. Assignment or transfer before garnishment.

14. Priority.

15. Claim of garnishee against defendant.

16. Judgment against garnishee.

17. Limitations.

1. In general.

This section is the equivalent of a direct action statute which simply permits a suit against the insurer, without joining the insured. Boston v. Titan Indem. Co., 34 F. Supp. 2d 419, 1999 U.S. Dist. LEXIS 882 (N.D. Miss.), dismissed without op., 199 F.3d 437, 1999 U.S. App. LEXIS 31605 (5th Cir. Miss. 1999).

28 USCS § 1331 does not confer Federal District Court with subject matter jurisdiction with respect to garnishment proceeding, since action for writ of garnishment arises from state law, not federal law. Berry v. McLemore, 795 F.2d 452, 1986 U.S. App. LEXIS 27593 (5th Cir. Miss. 1986).

Insurance company against which suggestion of garnishment is filed by judgment creditor is entitled to summary judgment dismissing cause with prejudice where judgment creditor admits in answer to company’s motion for summary judgment that creditor is seeking to garnish proceeds from wrong company. Briggs v. Benjamin, 467 So. 2d 932, 1985 Miss. LEXIS 2023 (Miss. 1985).

Section 11-35-1 allows a creditor to proceed against another said to be indebted to the creditor’s debtor only after the creditor has obtained a judgment against such debtor. First Mississippi Nat'l Bank v. KLH Industries, Inc., 457 So. 2d 1333, 1984 Miss. LEXIS 1978 (Miss. 1984).

Mississippi garnishment proceedings are removable to federal court. Moore v. Sentry Ins. Co., 399 F. Supp. 929, 1975 U.S. Dist. LEXIS 16141 (S.D. Miss. 1975).

A judgment in favor of the plaintiff in a personal injury suit was a final judgment against the defendant within the “no-action” clause of the defendant’s policy although an appeal was pending, where the defendant in appealing, filed no supersedeas bond, so that a garnishment determination that the defendant’s liability insurer was indebted to the defendant and was subject to garnishment was justified, although the garnishee insurer was only liable for the amount of its insurance contract plus interest and damages. Williams v. Moran, 233 So. 2d 110, 1970 Miss. LEXIS 1648 (Miss. 1970).

The issue whether a judgment creditor wrongfully caused the issuance of a garnishment which was served upon the judgment debtor’s employer, resulting in the debtor’s discharge, was a question which should be submitted to a jury for its determination. Wilkerson v. Randall, 254 Miss. 546, 180 So. 2d 303, 1965 Miss. LEXIS 965 (Miss. 1965).

Where garnishment is concerned only with proceeds of C.O.D. collections in interstate commerce, this does not constitute an unreasonable interference with interstate commerce. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Procedure in suit in chancery court against nonresident debtor must be in accord with that of chancery court. Inman v. Travelers' Ins. Co., 153 Miss. 405, 121 So. 107, 1929 Miss. LEXIS 30 (Miss. 1929).

The chapter on garnishment and the independent chapter on exemptions must be so construed as to give harmonious effect to both. Chapman v. Berry, 73 Miss. 437, 18 So. 918, 1895 Miss. LEXIS 107 (Miss. 1895).

2. Nature and effect of proceeding.

Writ of attachment in chancery may not be used as independent basis for default judgment. Federal Sav. & Loan Ins. Corp. v. S. & W. Constr. Co., 475 So. 2d 145, 1985 Miss. LEXIS 2314 (Miss. 1985).

Where there is no contingency as to the garnishee’s liability, the only contingency being as to the amount of it, and where the amount of liability is capable of definite ascertainment, there is no contingency to prevent garnishment of the claim. American Nat'l Ins. Co. v. United States Fidelity & Guaranty Co., 215 So. 2d 245, 1968 Miss. LEXIS 1343 (Miss. 1968).

A subrogee is entitled to the benefit of all the remedies of the subrogor, and may use all of the means which the subrogor could employ to enforce payment, including garnishment. American Nat'l Ins. Co. v. United States Fidelity & Guaranty Co., 215 So. 2d 245, 1968 Miss. LEXIS 1343 (Miss. 1968).

Various types of insurance policies have been recognized as subject to garnishment, and there is no reason why in a proper case the proceeds of an employees’ fidelity bond would not be so subject. American Nat'l Ins. Co. v. United States Fidelity & Guaranty Co., 215 So. 2d 245, 1968 Miss. LEXIS 1343 (Miss. 1968).

The judgment creditor succeeds to the rights of the judgment debtor in a garnishment proceeding. United States Fire Ins. Co. v. Coggins, 195 So. 2d 482, 1967 Miss. LEXIS 1444 (Miss. 1967).

In a garnishment proceeding, it is the obligation which is attached and the form of action does not determine the character of obligation. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Garnishment does not extend the lien of the judgment upon which it is founded. Grace v. Pierce, 127 Miss. 831, 90 So. 590, 1921 Miss. LEXIS 286 (Miss. 1921).

A garnishment is not an original suit in reference to jurisdictional amount. Martin v. Harvey, 54 Miss. 685, 1877 Miss. LEXIS 81 (Miss. 1877).

3. Suggestion of garnishment.

Method of pleading suggestion for garnishment prescribed in §11-35-1 et seq. is simple and consistent with what is required in Mississippi Rule of Civil Procedure 8; on other hand, requirement of Rule 9(c) relating to pleading of conditions precedent is foreign to statutory garnishment procedures and as such may not be enforced in garnishment action. Leader Nat'l Ins. Co. v. Lindsey, 477 So. 2d 1323, 1985 Miss. LEXIS 2184 (Miss. 1985).

Allegation in suggestion of garnishment filed by judgment creditor in automobile negligence suit against judgment debtor’s automobile liability carrier that carrier had insurance policy with judgment debtor in full force and effect at time of auto accident is sufficient in substance to allege fulfillment of all conditions precedent to recovery under policy. Leader Nat'l Ins. Co. v. Lindsey, 477 So. 2d 1323, 1985 Miss. LEXIS 2184 (Miss. 1985).

Judgment creditor may, if the facts justify it, suggest any one or more of the four grounds for garnishment to be answered by the garnishee, and a suggestion of garnishment alleging only two of the statutory grounds, instead of all four grounds, is sufficient. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

Judgment creditor, in suggestion of garnishment against foreign insurance corporation, need not allege that garnishee is authorized and is doing business in state, but must prove such fact. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

4. Service and return of process.

Certified copy of appointment of Insurance Commissioner as agent for foreign corporation for service of process held sufficient proof of such fact as basis for service of writ of garnishment. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

The presence of the garnishee within the state where service is had upon him gives the court jurisdiction of his person. Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (Miss. 1911).

A justice of the peace having two separate places in the county to hold his regular courts may properly make a writ of garnishment returnable to either of said places although he holds an intervening term at the other place. Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69, 1908 Miss. LEXIS 207 (Miss. 1908).

Where a writ of garnishment omits to require an answer in writing, or to require the garnishee to answer whether he was indebted to defendant at the time of the summoning of the garnishee, or since that time or whether he has since had effects of defendant, a return by the officer that he had handed to the garnishee “a true notice of the within” is sufficient, since notice of everything in the writ would not be a compliance with the statute which entitled the garnishee to “notice the writing” of the answer he is required to make. A judgment by default on such return will be reversed. Acme Lumber Co. v. Francis Vandergrift Shoe Co., 70 Miss. 91, 11 So. 657, 1892 Miss. LEXIS 64 (Miss. 1892).

A garnishee may waive the service, and if so, his answer will be sufficient if it relate only to the time of answering. Roy v. Heard & Simmons, 38 Miss. 544, 1860 Miss. LEXIS 25 (Miss. 1860).

A garnishment, as to the garnishee, is original process and must be executed as such. Jefferies v. Harvie, 38 Miss. 97, 1859 Miss. LEXIS 96 (Miss. 1859); Roy v. Heard & Simmons, 38 Miss. 544, 1860 Miss. LEXIS 25 (Miss. 1860); Hoffman v. Levi Simon & Co., 52 Miss. 302, 1876 Miss. LEXIS 214 (Miss. 1876).

5. Persons subject to garnishment.

A judgment creditor in an automobile accident case was not entitled to a writ of garnishment against the insurer of an automobile which had been driven by the uninsured judgment debtor, the judgment debtor being a stranger to the policy containing the uninsured motorist coverage issued by the insurer to the owner of the automobile, and the judgment creditor’s only resort would be to prove his case against the insurer in a direct action against the insurer. St. Paul Fire & Marine Ins. Co. v. Arnold, 254 So. 2d 872, 1971 Miss. LEXIS 1522 (Miss. 1971).

If a creditor can enforce a claim against his debtor in a certain jurisdiction, that claim can be garnished, and the debtor summoned as garnishee in that jurisdiction in an action against the creditor. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Jurisdiction to attach or garnish a debt is not dependent upon the abstract conception of the situs of the indebtedness in question, but rather upon the power of the court over the person of the garnishee, and more particularly upon the liability of the garnishee to suit in such courts by its creditor. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Where property is devised to one with the request that he shall pay an annuity to a third person, by accepting the provisions of the will the devisee becomes the debtor of such person and may be garnished. Red v. Powers, 69 Miss. 242, 13 So. 586, 1891 Miss. LEXIS 133 (Miss. 1891).

6. State and municipal corporations.

Where a writ of garnishment has been properly served upon a county through its chancery clerk and it appeared that the county was indebted to the judgment debtor for labor and services performed for the county each month since the date of the service of the writ, it was the duty of the chancery clerk, representing the board of supervisors, to make proper answer to the writ, including the amount of the monthly payments, in order that a proper judgment could be obtained in case the amount due under the warrants to be issued to the debtor was above the exemption allowed him by law. Dunlop Tire & Rubber Corp. v. Williams, 251 Miss. 442, 169 So. 2d 783, 1964 Miss. LEXIS 362 (Miss. 1964).

Tendency of the legislature has been to enlarge the right of garnishment against public bodies, such as the State, counties and municipalities, even in law cases. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

7. —Under prior law.

A public officer’s salary in the hands of the Government is not subject to garnishment. Scruggs v. Electric Paint & Varnish Co., 140 Miss. 615, 105 So. 745 (Miss. 1925).

A municipality, unless subjected thereto by statute, is not liable to a suit by garnishment or otherwise for debts arising from its exercise of governmental functions. Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

A plaintiff who seeks to subject a municipality to garnishment on the ground that its debt to the defendant was contracted in its private capacity and not in the exercise of governmental functions must show the nature of the transaction and the facts which render it amenable to the process. Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

A county cannot be garnished either at law or in equity if its board of supervisors object. Dollar v. Allen West Com. Co., 78 Miss. 274, 28 So. 876, 1900 Miss. LEXIS 116 (Miss. 1900).

8. Property subject to garnishment.

A joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which evidence is admissible to show what portion of the funds is actually owned by each depositor. Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800, 1989 Miss. LEXIS 366 (Miss. 1989).

Where the evidence established that the funds paid into court in a garnishment proceeding were for the purchase price of raw milk sold by the defendants to a dairy corporation, the defendants were not employees of the corporation and the funds were not for personal services, and consequently the tenth subsection of Code 1942, § 307, was inapplicable. Beam v. Greenville Mills, 215 So. 2d 253, 1968 Miss. LEXIS 1345 (Miss. 1968).

A debt or claim which is uncertain or contingent, in the sense that it may never become due and payable, is not garnishable; and under this theory, a claim for unliquidated damages cannot be reached by garnishment process. American Nat'l Ins. Co. v. United States Fidelity & Guaranty Co., 215 So. 2d 245, 1968 Miss. LEXIS 1343 (Miss. 1968).

The statute authorizing garnishment of a county does not operate to subject the fees of public officers to garnishment proceedings. Bearry v. Stringfellow, 247 Miss. 683, 157 So. 2d 491, 1963 Miss. LEXIS 344 (Miss. 1963).

Contents of safety deposit box rented by judgment debtor in garnishee bank held subject to garnishment as property in “possession or control” of garnishee bank. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

Debtor renting safety deposit box in garnishee bank may obtain court order protecting his right of privacy as to personal papers of confidential nature contained within box. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

An unliquidated liability for damages, because of a tort, is not subject to garnishment either at law or in equity. Blair v. Kansas C., M. & B. R. Co., 76 Miss. 478, 24 So. 879, 1898 Miss. LEXIS 110 (Miss. 1898).

A debt due by a stockholder in an insolvent corporation, who has not paid up his stock, may be reached by garnishment. Scott v. Windham, 73 Miss. 76, 16 So. 206, 1895 Miss. LEXIS 75 (Miss. 1895).

A judgment debtor of a debtor can be garnished. 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).

9. —Partnership property.

Where a survivor of a mercantile firm continues business in the firm name, it not being shown that he had authority to do so, debts thereafter accruing in the business, though nominally due to the firm, are subject to garnishment by his individual creditors. Brenner v. Hirsche, 69 Miss. 309, 13 So. 730, 1891 Miss. LEXIS 155 (Miss. 1891).

10. —Debt due several persons jointly.

A debt due to several persons jointly, but not as partners, may be garnished by a creditor of one of them in view of Code 1892, §§ 751, 752 and 2143. Fewell v. American Surety Co., 80 Miss. 782, 28 So. 755, 1902 Miss. LEXIS 213 (Miss. 1902).

11. —Property in hands of agent.

Where a mercantile business was conducted under the name of “Ormond Grocery Co.,” without a sign disclosing its owner, the proceeds of a policy of fire insurance on goods acquired and used in such business and burned, is liable to the creditors of the party who transacted the business, although in truth he was the agent of an undisclosed principal, and may be garnished by them. Meridian Land & Industrial Co. v. J. B. Ormond & Co., 82 Miss. 758, 35 So. 179, 1903 Miss. LEXIS 192 (Miss. 1903).

12. —Property in custody of the law.

Money lawfully taken from arrested person by sheriff held subject to garnishment. Blaylock v. J. Rubel & Co., 119 So. 503, 1928 Miss. LEXIS 395 (Miss. 1928).

Money in the hands of a sheriff under execution is subject to garnishment. Laurel Mills v. Ward, 137 Miss. 221, 102 So. 263, 1924 Miss. LEXIS 221 (Miss. 1924).

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).

13. Assignment or transfer before garnishment.

A third person claimant’s defense that the debts garnished had been transferred raised a question of fact for the jury as to the bona fides of such transfer. Reeves Grocery Co. v. Thompson, 105 Miss. 729, 63 So. 187, 1913 Miss. LEXIS 244 (Miss. 1913).

A creditor of a nonresident corporation, which has been consolidated into a new nonresident one, may attach the new corporation and garnish a debt to the old company. Morrison v. American Snuff Co., 79 Miss. 330, 30 So. 723, 1901 Miss. LEXIS 75 (Miss. 1901).

A valid assignment of a judgment will defeat a subsequent garnishment of the judgment debtor by a creditor of the assignor, although when the garnishment was served such debtor had no notice of the assignment. Schoolfield v. Hirsh, 71 Miss. 55, 14 So. 528, 1893 Miss. LEXIS 190 (Miss. 1893).

14. Priority.

When a written notice of a claim to a fund by laborers has been served subsequent to a writ of garnishment, the garnishment being the first in time is first in right. Herrin v. Warren & Mobley, 61 Miss. 509, 1894 Miss. LEXIS 60 (Miss. 1894).

15. Claim of garnishee against defendant.

The garnishee would have the right to set off any debt due him from the judgment debtor, but it must be actually applied to garnishee’s debt; and if not applied, but paid to the debtor, such payment would be at the peril of the garnishee. Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363, 1928 Miss. LEXIS 283 (Miss. 1928).

A garnishee should plead specifically a claim for damages against defendant, but if he fails, and proof is admitted without specific objections to his damages as an offset, the plaintiff waives the special plea. Melton Hardware Co. v. Heidelberg, 91 Miss. 598, 44 So. 857, 1907 Miss. LEXIS 158 (Miss. 1907).

16. Judgment against garnishee.

Variance between name of defendant in judgment on which garnishment was issued and that stated in the suggestion for, and the writ of, garnishment, and in the judgment thereon, rendered the judgment against the garnishee void and was not a mere error which, under Code 1942, § 1347, was released by garnishee suing out an injunction restraining writ of execution. Campbell v. Yazoo & M. V. R. Co., 199 Miss. 309, 24 So. 2d 531, 1946 Miss. LEXIS 199 (Miss. 1946).

A judgment by default against a garnishee cannot be sustained where the original judgment was void and will be reversed on appeal. Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375, 1924 Miss. LEXIS 127 (Miss. 1924).

The validity of a judgment against garnishee is dependent upon the validity of the judgment in the main action. Moody & Williams v. Dye, 125 Miss. 770, 88 So. 332, 1921 Miss. LEXIS 165 (Miss. 1921).

No greater interest can be acquired by a judgment creditor by garnishment than the debtor himself had in funds or property. Shuler v. Murphy, 91 Miss. 518, 44 So. 810, 1907 Miss. LEXIS 145 (Miss. 1907).

A garnishment upon a judgment against the “Southern Insurance Company of New Orleans” is not void and the garnishee cannot escape liability because the record does not show whether the defendant in the judgment is a corporation, natural person or a partnership. Winner v. McMullan, 77 Miss. 662, 27 So. 618 (Miss. 1900).

The judgment against the garnishee must not be larger than the judgment against the original defendant. Hoffman v. Levi Simon & Co., 52 Miss. 302, 1876 Miss. LEXIS 214 (Miss. 1876).

17. Limitations.

If the original judgment is barred by statute of limitations the garnishment proceedings thereon will be void. Grace v. Pierce, 127 Miss. 831, 90 So. 590, 1921 Miss. LEXIS 286 (Miss. 1921).

RESEARCH REFERENCES

ALR.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action. 14 A.L.R.2d 420.

Funds deposited in court as subject of garnishment. 1 A.L.R.3d 936.

Attachment and garnishment of funds in branch bank or main office of bank having branches. 12 A.L.R.3d 1088.

Issues in garnishment as triable to court or to jury. 19 A.L.R.3d 1393.

Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.

Right of judgment creditor to demand that debtor’s tender of payment be in cash or by certified check rather than by uncertified check. 82 A.L.R.3d 1199.

Garnishee’s duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt. 36 A.L.R.4th 824.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee. 20 A.L.R.5th 229.

Modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ line statutes, and like procedures authorizing summary seizure of property. 18 A.L.R. Fed. 223.

Construction and application of 42 USCS § 659(a) authorizing garnishment against United States or District of Columbia for enforcement of child support and alimony obligations, 44 A.L.R. Fed. 494.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 201 et seq.

CJS.

38 C.J.S., Garnishment §§ 11 et seq.

§ 11-35-3. When issued on suing out attachment.

If, at the time of issuing a writ of attachment, or thereafter before the attachment issue has been tried, the attaching creditor shall suggest that any person is indebted to the debtor, or has property of the debtor in his hands, or knows of any other person so indebted or who has effects or property of the debtor in his hands, the officer issuing the writ of attachment shall insert therein a command to summon such person to appear on the return day of the attachment, to answer accordingly.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (6); 1857, ch. 52, art. 4; 1871, § 1430; 1880, § 2422; 1892, § 2131; 1906, § 2338; Hemingway’s 1917, § 1933; 1930, § 1839; 1942, § 2784.

Cross References —

Attachment in chancery against nonresident, absent or absconding debtors, see §11-31-1 et seq.

Attachment at law against debtors, see §11-33-1 et seq.

What writ is to be served upon and what is bound by the levy, see §11-33-23.

Form of writ of garnishment when issued by the sheriff, see §11-35-7.

Enrolling a judgment, see §27-65-57.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Plaintiff in attachment has burden of proof. Third Nat'l Bank v. Reeves Grocery Co., 113 Miss. 35, 73 So. 866, 1916 Miss. LEXIS 6 (Miss. 1916).

A writ of garnishment issued under this section which fails to notify the party garnished to make answer in writing, will not support a judgment by default against the garnishee. Work Bros. & Co. v. Waggoner, 82 Miss. 591, 35 So. 137, 1903 Miss. LEXIS 174 (Miss. 1903).

Sections 136, 140 (Code of 1890), authorizing officers to summon garnishees by writs of garnishment, issued and served by themselves, does not destroy or abridge the power conferred by this section [Code 1942, § 2784] on circuit clerks or other officers who issue attachments, to insert an order for garnishment as part thereof. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

If a circuit clerk or other officer who issued the original attachment writ afterward, on suggestion of plaintiff, issues a simple writ of garnishment for designated persons, instead of an alias writ of attachment and garnishment, the writ is not void, but merely defective, and may be amended. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

Where a writ of attachment embodies a garnishment, but the sheriff, instead of summoning the garnishee thereunder, issues and serves an independent writ of garnishment, the latter writ is not invalid, though unnecessary. Acme Lumber Co. v. Francis Vandergrift Shoe Co., 70 Miss. 91, 11 So. 657, 1892 Miss. LEXIS 64 (Miss. 1892); First Nat'l Bank v. First Nat'l Bank, 72 Miss. 258, 16 So. 904, 1894 Miss. LEXIS 120 (Miss. 1894).

In case the writ show on its face that a certain person has been suggested for garnishment, the sheriff must summon him even if there be no direct command in the writ to do so. Semmes v. Patterson, 65 Miss. 6, 3 So. 35, 1887 Miss. LEXIS 3 (Miss. 1887).

No man can be cited as garnishee beyond the jurisdiction of his own state unless he holds property or holds a debt due and payable in the jurisdiction where garnished. Bush v. Nance, 61 Miss. 237, 1883 Miss. LEXIS 116 (Miss. 1883).

A garnishee cannot object to irregularities in proceedings against the principal debtor, unless they are such as to render the judgment void, and if the garnishment does not name the garnishees the return must, but a return of “executed” is sufficient on a writ which gives the name. Benson v. Holloway, 59 Miss. 358, 1881 Miss. LEXIS 134 (Miss. 1881).

RESEARCH REFERENCES

ALR.

What is an action for “debt” within attachment or garnishment statute. 12 A.L.R.2d 787.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee. 20 A.L.R.5th 229.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 201 et seq.

§ 11-35-5. Form for writ of garnishment on judgment or decree.

The writ of garnishment, when issued on a judgment or decree, may be in the following form, to wit:

“THE STATE OF MISSISSIPPI. “To any lawful officer of county: “Whereas, recovered a judgment in court of county, on the day , A. D. , for the sum of dollars and costs, against , and the judgment has not been satisfied, and said having made the proper suggestion for a writ of garnishment against : “We therefore command you to summon said to appear in said court, at , on the day of , A. D. , then and there to answer, on oath in writing, whether (here copy in full every particular that a garnishee is required to answer). And have you then and there this writ, with your proceedings indorsed thereon. “Witness my signature (and if by a clerk, add an official seal), this day of , A. D. .”

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The writ must be signed by the officer who issues it, and his official character should be written after his name.

HISTORY: Codes, 1892, § 2132; 1906, § 2339; Hemingway’s 1917, § 1934; 1930, § 1840; 1942, § 2785.

Cross References —

When garnishment is issued on judgment or decree, see §11-35-1.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Judgment creditor may, if facts justify it, suggest any one or more of four grounds for garnishment to be answered by garnishee. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

Suggestion of garnishment, alleging only two of statutory grounds, instead of all four grounds, held sufficient. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 304 et seq.

Garnishment, 2 Am. Jur. Pl and Pr Forms (Rev), Attachment and Garnishment, Forms 221 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 211 et seq.

CJS.

38 C.J.S., Garnishment §§ 176 et seq.

§ 11-35-7. Form of the writ of garnishment—when issued by the sheriff.

When the sheriff issues a writ of garnishment in executing an attachment, it may be in the following form:

“THE STATE OF MISSISSIPPI. “To , garnishee: “Whereas, the undersigned holds an attachment writ against , as defendant at the suit of , as plaintiff, and it appearing that you should be summoned as garnishee: “We therefore command you to appear in the court, at , on the day of , A. D. , being the return day of said attachment, then and there in said attachment suit to answer (here copy in full every particular that a garnishee is required to answer). Herein fail not, under penalty of having judgment rendered against you for the whole amount of plaintiff’s demand. “Witness my signature, this day of , A. D. . “ ”

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The original must be returned to the court properly indorsed with the mode of service and the defendant served, as in other cases.

HISTORY: Codes, 1892, § 2133; 1906, § 2340; Hemingway’s 1917, § 1935; 1930, § 1841; 1942, § 2786.

Cross References —

Summoning of creditor of judgment debtor in garnishment proceeding, see §11-35-3.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Sections 136, 140 (Code of 1890), authorizing officers to summon garnishees by writs of garnishment, issued and served by themselves, does not destroy or abridge the power conferred by this section [Code 1942, § 2784] on circuit clerks or other officers who issue attachments, to insert an order for garnishment as part thereof. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

If a circuit clerk or other officer who issued the original attachment writ afterward, on suggestion of plaintiff, issues a simple writ of garnishment for designated persons, instead of an alias writ of attachment and garnishment, the writ is not void, but merely defective, and may be amended. C. C. Kelly Banking Co. v. Hollingsworth, 71 Miss. 141, 13 So. 932 (Miss. 1893).

Where a writ of attachment embodies a garnishment, but the sheriff, instead of summoning the garnishee thereunder, issues and serves an independent writ of garnishment, the latter writ is not invalid, though unnecessary. Acme Lumber Co. v. Francis Vandergrift Shoe Co., 70 Miss. 91, 11 So. 657, 1892 Miss. LEXIS 64 (Miss. 1892); First Nat'l Bank v. First Nat'l Bank, 72 Miss. 258, 16 So. 904, 1894 Miss. LEXIS 120 (Miss. 1894).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 211 et seq.

§ 11-35-9. Service.

A writ of garnishment, whether issued in a case of attachment or on a judgment or decree, shall be served as a summons is required by law to be executed; but if the garnishee be not personally served, and make default, judgment nisi shall be rendered against him, and a scire facias awarded, returnable to the next term, unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter.

HISTORY: Codes, 1892, § 2134; 1906, § 2341; Hemingway’s 1917, § 1936; 1930, § 1842; 1942, § 2787.

Cross References —

Service of writs on public officer, see §11-35-11.

Issuing of summons, see §13-3-5 et seq.

Provisions relative to orders for withholding amounts of overdue child support payments from income of obligors, see §§93-11-101 through93-11-119.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Answer to writ.

1. In general.

Not only did a circuit court err when it determined that priority of garnishments under Miss. Code Ann. §11-35-24 was based on service of the writ rather than the filing of the writ but if prior garnishors’ services of process on a garnishee were defective, the date of service for each was the day the garnishee waived the defense of insufficient service of process by filing an answer to that garnishor’s writ. However, the court could not assume that the garnishee waived service of process in the same order that the prior garnishors’ attempted service. Y-D Lumber Co. v. Humphreys County, 2 So.3d 793, 2009 Miss. App. LEXIS 68 (Miss. Ct. App. 2009).

Where garnishee was personally served for requisite time before return day, justice of peace on return day could render judgment final. Busby v. Merchants' & Mfrs' Bank, 158 Miss. 843, 131 So. 645, 1931 Miss. LEXIS 1 (Miss. 1931).

This section [Code 1942, § 2787] requires a writ of garnishment to be served as a summons, and where the service is within five days of the return-day the garnishee is not required to answer until the next term. Alexander v. Lloyd, 70 Miss. 662, 14 So. 22, 1893 Miss. LEXIS 67 (Miss. 1893).

In such case judgment by default cannot be taken against him before the next term, and the fact that five days have elapsed after service and before entry of the judgment does not change this. Alexander v. Lloyd, 70 Miss. 662, 14 So. 22, 1893 Miss. LEXIS 67 (Miss. 1893).

Service of a writ of garnishment not made personally and only two days before the return term cannot support a judgment against the garnishee at the return term. Alexander v. Equitable Fire Ins. Co., 12 So. 706 (Miss. 1893).

2. Answer to writ.

A garnishee purporting to answer a writ of garnishment should disclose whether any indebtedness existed at the time of the service of writ or thereafter and whether there was any property in the hands of the garnishee and also that the answers must be made under oath. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

In a garnishment action where a letter was written to the court by the garnishee in which he stated that there was no indebtedness due judgment debtor, that fact should have been alleged in garnishee’s answer to the writ of garnishment. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

Purpose of judgment nisi against garnishee is to give garnishee opportunity to answer writ in accordance with statute. Busby v. Merchants' & Mfrs' Bank, 158 Miss. 843, 131 So. 645, 1931 Miss. LEXIS 1 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Who may serve writ, summons, or notice of garnishment. 75 A.L.R.2d 1437.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 311- 314.

Garnishment, 2 Am. Jur. Pl and Pr Forms (Rev), Attachment and Garnishment, Forms 241 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment and Garnishment, Forms 211 et seq.

CJS.

38 C.J.S., Garnishment §§ 177, 206–216.

§ 11-35-11. Service of writs of garnishment on government employees.

Service of writs of garnishment upon judgments against any officer or employee of the state, a county, a municipality, any state institution, board, commission or authority shall be effected as follows:

  1. In a case of garnishment against any employee of a state department, agency, board, commission, institution or other authority, the writ shall be served upon the department head, president of the institution or chairman or other presiding officer thereof. In case of a garnishment against a state officer, departmental head, president of an institution, director of a board or other head of any other agency or commission of the state government, the writ shall be served upon the state auditor. In case of a garnishment against the state auditor, the writ shall be served upon the state treasurer, this being the only case in which the state treasurer is served with a writ of garnishment except where a garnishment is against an employee of the state treasurer.
  2. In case of a garnishment against any person who is now or may hereafter be a salaried officer or employee of a county, the writ shall be served upon the clerk of the chancery court of the county, except that in case of garnishment upon a judgment against such clerk the writ shall be served upon the sheriff of the county.
  3. In case of a garnishment against any person who is now or may hereafter be a salaried officer or employee of a county school district or a municipal separate school district, the writ shall be served upon the superintendent of the respective school district, except in the event the garnishment be against such superintendent the writ shall be served upon the president of the board of education or the board of trustees.
  4. In case of a garnishment against an officer or employee of a municipality, the writ shall be served upon the city, town or village clerk.

HISTORY: Codes, 1942, § 2789; Laws, 1936, ch. 321; Laws, 1952, ch. 264; Laws, 1973, ch. 422, § 1, eff from and after passage (approved March 29, 1973).

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Cross References —

Seizure of person or property, see Miss. Rule of Civil Proc. 64.

JUDICIAL DECISIONS

1. In general.

Where a writ of garnishment has been properly served upon a county through its chancery clerk and it appeared that the county was indebted to the judgment debtor for labor and services performed for the county each month since the date of the service of the writ, it was the duty of the chancery clerk, representing the board of supervisors, to make proper answer to the writ including the amount of the monthly payments in order that a proper judgment could be obtained in case the amount due under the warrants to be issued to the debtor was above the exemption allowed him by law. Dunlop Tire & Rubber Corp. v. Williams, 251 Miss. 442, 169 So. 2d 783, 1964 Miss. LEXIS 362 (Miss. 1964).

This section [Code 1942, § 2789] does not operate to subject to garnishment fees allowable to a public officer. Bearry v. Stringfellow, 247 Miss. 683, 157 So. 2d 491, 1963 Miss. LEXIS 344 (Miss. 1963).

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 11-35-11 explicitly subjects salaries of county officials to garnishment, but makes no mention of fees. Wallace, Feb. 25, 1993, A.G. Op. #92-0981.

§ 11-35-13. Garnishment against public officer or employee; default judgment against state prohibited.

In no case shall judgment be rendered against the state, a county, a municipality or any state institution, board, commission or authority for default in failing to make answer to a writ served hereunder.

HISTORY: Codes, 1942, § 2790; Laws, 1936, ch. 321.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-35-15. Garnishment against state public officer or employee; fee for service of writ.

Any person suggesting and obtaining a writ of garnishment upon a judgment against any person who is an officer or employee of the state shall advance and pay the sum of two dollars which shall be paid by the officer serving the writ of garnishment to the state officer upon whom such writ is directed to be served and such payment shall be retained by such officer as compensation for the additional duty imposed upon him by Sections 11-35-1 and 11-35-11 through 11-35-21, in the capacity of such officer as special agent of the state for service of garnishment writs.

HISTORY: Codes, 1942, § 2791; Laws, 1936, ch. 321.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in this section. The dash preceding the words “in the capacity” was deleted. The Joint Committee ratified the correction at its December 3, 1996, meeting.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-35-17. Garnishment against county, municipal or other public officer or employee; fee for service of writ.

Any person suggesting and obtaining a writ of garnishment to issue against any officer or employee of a county, municipality or any state institution, board, commission or authority shall advance and pay the sum of one dollar which shall be paid to the officer upon whom such writ is directed to be served at the time of service of the writ and such sum shall be retained by such officer as compensation for answering the writ of garnishment.

HISTORY: Codes, 1942, § 2792; Laws, 1936, ch. 321.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

OPINIONS OF THE ATTORNEY GENERAL

Section 11-35-17 limits to one dollar the amount that a local governmental entity such as a school district may receive for answering a garnishment. Haque, March 15, 1995, A.G. Op. #95-0083.

§ 11-35-19. Garnishment against public officer or employee; failure to answer writ; penalty.

Any person upon whom, in his representative capacity as above set out in Section 11-35-11, there shall be served a writ of garnishment under the provisions of Sections 11-35-1 and 11-35-11 through 11-35-21 shall, if he shall fail or refuse to answer such writ as provided by law in other cases of writs of garnishment and answers thereto forfeit and pay to the plaintiff in the judgment upon which the writ has issued the sum of twenty-five dollars, the same to be recovered in any court of competent jurisdiction.

HISTORY: Codes, 1942, § 2793; Laws, 1936, ch. 321.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-35-21. Garnishment against public officer or employee; effect of writ.

Service of writ of garnishment as provided for in Section 11-35-11 shall be effective to bind funds in the hands of the garnishee as in other cases and upon judgment rendered upon the garnishment issue in any court the funds bound, or so much thereof as shall be necessary to pay the judgment upon which garnishment issued and all cost accrued, shall be paid over to the court in which such judgment was rendered and for such payment a properly certified copy of the said judgment in the garnishment proceeding and a certified copy of the bill of costs in such proceedings shall be sufficient warrant and any payment so made shall be charged against the salary or wages of the judgment debtor in the judgment on which writ of garnishment issued.

HISTORY: Codes, 1942, § 2794; Laws, 1936, ch. 321.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Form of judgment against garnishee respecting obligation payable in instalments. 7 A.L.R.2d 680.

Retirement or pension proceeds or annuity as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Right of creditors of life insured as to options or other benefits available to him during his lifetime. 37 A.L.R.2d 268.

Sharecropper’s share in crop wholly or partly unharvested as subject to garnishment. 82 A.L.R.2d 858.

Garnishment of salary, wages, or commissions where defendant debtor is indebted to garnishee-employer. 93 A.L.R.2d 995.

Funds deposited in court as subject of garnishment. 1 A.L.R.3d 936.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint debtors. 11 A.L.R.3d 1465.

§ 11-35-23. Nature and effects of garnishment; property affected.

    1. Except for wages, salary or other compensation, all property in the hands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment shall be bound by and subject to the lien of the judgment, decree or attachment on which the writ shall have been issued. If the garnishee shall surrender such property to the sheriff or other officer serving the writ, the officer shall receive the same and, in case the garnishment issued on a judgment or decree, shall make sale thereof as if levied on by virtue of an execution, and return the money arising therefrom to satisfy the judgment; and if the garnishment issued on an attachment, the officer shall dispose of the property as if it were levied upon by a writ of attachment. And any indebtedness of the garnishee to the defendant, except for wages, salary or other compensation, shall be bound from the time of the service of the writ of garnishment, and be appropriable to the satisfaction of the judgment or decree, or liable to be condemned in the attachment.
    2. If the garnishee is a bank or other financial institution and its indebtedness to the defendant consists of funds that the defendant has on deposit with the bank or other financial institution at the time of service of the writ of garnishment, then the garnishee shall be held to account for only such funds on deposit between the time of service of the writ of garnishment and the time of service of its answer to such writ, and the garnishee shall have no obligation to account for additional deposits accruing after the time of service of its answer. If the bank or other financial institution is not indebted to the defendant at the time of service of the writ of garnishment or does not have possession of property of the defendant at the time of service of such writ, then the bank or other financial institution may serve its answer and thereafter shall not be held to account for any indebtedness that arises subsequent to service of its answer or property that may come into its hands subsequent to such service. The financial institution may submit its Answer of Indebtedness at any time within the thirty (30) days allowed for response.
  1. The court issuing any writ of garnishment shall show thereon the amount of the claim of the plaintiff and the court costs in the proceedings and should at any time during the pendency of said proceedings in the court a judgment be rendered for a different amount, then the court shall notify the garnishee of the correct amount due by the defendant under said writ.
    1. Except for judgments, liens, attachments, fees or charges owed to the state or its political subdivisions; wages, salary or other compensation in the hands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment shall not be bound by nor subject to the lien of the judgment, decree or attachment on which the writ shall have been issued when the writ of garnishment is issued on a judgment based upon a claim or debt that is less than One Hundred Dollars ($100.00), excluding court costs.
    2. If the garnishee be indebted or shall become indebted to the defendant for wages, salary or other compensation during the first thirty (30) days after service of a proper writ of garnishment, the garnishee shall pay over to the employee all of such indebtedness, and thereafter, the garnishee shall retain and the writ shall bind the nonexempt percentage of disposable earnings, as provided by Section 85-3-4, for such period of time as is necessary to accumulate a sum equal to the amount shown on the writ as due, even if such period of time extends beyond the return day of the writ. Unless the court otherwise authorizes the garnishee to make earlier payments or releases and except as otherwise provided in this section, the garnishee shall retain all sums collected pursuant to the writ and make only one (1) payment into court at such time as the total amount shown due on the writ has been accumulated, provided that, at least one (1) payment per year shall be made to the court of the amount that has been withheld during the preceding year. Should the employment of the defendant for any reason be terminated with the garnishee, then the garnishee shall not later than fifteen (15) days after the termination of such employment, report such termination to the court and pay into the court all sums as have been withheld from the defendant’s disposable earnings. If the plaintiff in garnishment contest the answer of the garnishee, as now provided by law in such cases, and proves to the court the deficiency or untruth of the garnishee’s answer, then the court shall render judgment against the garnishee for such amount as would have been subject to the writ had the said sum not been released to the defendant; provided, however, any garnishee who files a timely and complete answer shall not be liable for any error made in good faith in determining or withholding the amount of wages, salary or other compensation of a defendant which are subject to the writ.
  2. Wages, salaries or other compensation as used in this section shall mean wages, salaries, commissions, bonuses or other compensation paid for employment purposes only.
  3. The circuit clerk may, in his or her discretion, spread on the minutes of the county or circuit court, as the case may be, an instruction that all garnishment defendants shall send all garnishment monies to the attorney of record or in the case where there is more than one (1) attorney of record, then to the first-named attorney of record, and not to the clerk. The payment schedule shall be the same as subsection (3)(b) of this section.
  4. All payments made pursuant to a garnishment issued out of the justice court shall be made directly to the plaintiff or to the plaintiff’s attorney as indicated by the plaintiff in his or her suggestion for writ of garnishment. The employer shall notify the court and the plaintiff or the plaintiff’s attorney when a judgment is satisfied or when the employee is no longer employed by the employer.
  5. If the plaintiff in a garnishment is the Department of Employment Security, the garnishee shall make monthly payments to the department until such time as the total amount shown due on the writ has been accumulated.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 7 (8); 1857, ch. 61, art. 314; 1871, § 875; 1880, § 1784; 1892, § 2136; 1906, § 2343; Hemingway’s 1917, § 1938; 1930, § 1844; 1942, § 2796; Laws, 1981, ch. 469, § 1; Laws, 1997, ch. 533, § 1; Laws, 2000, ch. 497, § 1; Laws, 2004, ch. 475, § 1; Laws, 2007, ch. 606, § 18; Laws, 2017, ch. 407, § 10, eff from and after July 1, 2017.

Amendment Notes —

The 2004 amendment added (6).

The 2007 amendment, in (3)(b), deleted “the court” following “amount shown on the writ as due” in the first sentence, and inserted “and except as otherwise provided in this section” in the second sentence; and added (7).

The 2017 amendment added (1)(b).

Cross References —

Exempt property, see §85-3-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Property subject to garnishment.

3. Assignment or transfer prior to garnishment.

1. In general.

County court did not abuse its discretion in ordering garnished funds to be deposited in the court registry in lieu of a supersedeas bond because the amount deposited was more than the 125 percent of the judgment bond requirement; a contractor never obtained a supersedeas bond, but the county court’s requiring the garnished funds to be deposited in the court registry had the same effect as a supersedeas bond, to provide absolute security to a company. Knights Marine & Indus. Servs. v. Gulfstream Enters., 216 So.3d 1164, 2017 Miss. App. LEXIS 207 (Miss. Ct. App. 2017).

Where a party commences a garnishment proceeding when the underlying judgment is still valid, the statute of limitations for actions on judgments is tolled as to that particular party as to funds, due to the judgment debtor, that were in the hands of the garnishee when the garnishment proceeding was initiated and the underlying judgment was valid; a garnisher is not entitled to the funds due to the judgment debtor, which came into the garnishee’s hands only after the underlying judgment lapsed. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

Trial court erred in granting a limited liability company’s (LLC) motion to dismiss a garnishment proceeding because a judgment creditor was not required to renew its underlying judgment against the judgment debtor for it to maintain its timely filed garnishment proceeding against the LLC, who was indebted to the debtor; the creditor brought its action within the seven-year period, and the underlying judgment had not lapsed as to its timely issued writs of garnishment and garnishment contest. Quality Diesel Serv. v. Tiger Drilling Co., LLC, 190 So.3d 860, 2016 Miss. LEXIS 2 (Miss. 2016).

In light of the Supremacy Clause, the statutory language of Section 11-35-23(3) must yield to the unequivocal language of the Bankruptcy Code; therefore, “transfers” effected pursuant to writs of garnishment served prior to the 90-day preference period are avoidable as to those wages not yet actually acquired by the debtor. Taylor v. Mississippi Learning Inst., 151 B.R. 772, 1993 Bankr. LEXIS 418 (Bankr. N.D. Miss. 1993).

A garnishee has the right to surrender garnished property to its true owner or to pay a creditor, but if he surrenders to a person not entitled thereto or pays a garnishor more than the garnishor is entitled to, he is not relieved from liability but will be required to make up any overpayment. State Farm Mut. Auto. Ins. Co. v. Sampson, 324 So. 2d 739, 1975 Miss. LEXIS 1596 (Miss. 1975).

Filing of a motion by the purchaser of the properties of an extinct corporation to quash a writ of garnishment and service on the corporation and to substitute the purchaser as garnishee was the equivalent of valid service of the writ on the purchaser so as to bind money belonging to the judgment debtor in the hands of the purchaser from the time of such appearance. Mississippi Cottonseed Products Co. v. Champion, 200 Miss. 460, 27 So. 2d 684, 1946 Miss. LEXIS 310 (Miss. 1946).

Service of the writ of garnishment binds any money belonging to the defendant that garnishee may receive between the date of service and the return day of the writ. Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363, 1928 Miss. LEXIS 283 (Miss. 1928).

If garnishee paid the judgment debtor his full salary after service of the writ, the garnishee would be liable for such payment, and certainly, if in excess of the legal exemption of the debtor, if any. Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363, 1928 Miss. LEXIS 283 (Miss. 1928).

A creditor may proceed to judgment against his debtor notwithstanding the latter has been garnished, but this being shown the judgment should require execution to be stayed for the amount the defendant has been or is sought to be charged as garnishee. Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 So. 271, 1893 Miss. LEXIS 166 (Miss. 1893).

Garnishments bind money received between the date of service and return day, and if the plaintiff wishes a disclosure of this he may demand a fuller answer; in that case a reasonable time must be allowed to amend the answer, even if a continuance results, and one day is not enough if the garnishee’s domicil is in a distant county. Columbus Ins. & Banking Co. v. Hirsh, 61 Miss. 74, 1883 Miss. LEXIS 75 (Miss. 1883).

2. Property subject to garnishment.

A bank was liable for failure to withhold the funds of a garnishee in a joint construction account in the names of a homeowner and the garnishee contractor, in which the homeowner deposited funds to pay for labor and materials furnished in construction, in spite of the bank’s argument that the funds in the account belonged to the homeowner and not to the contractor, where the contractor was free to write checks as he pleased, he determined whether or not each check should be written, and he wrote checks to pay his own debts. Deposit Guaranty Nat'l Bank v. Pete, 583 So. 2d 180, 1991 Miss. LEXIS 390 (Miss. 1991).

A joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which evidence is admissible to show what portion of the funds is actually owned by each depositor. Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800, 1989 Miss. LEXIS 366 (Miss. 1989).

Funds in the possession of the circuit clerk that were received by that office under a mother’s garnishment to enforce unpaid child support payments could not be reached in another garnishment proceeding by an entirely disassociated judgment creditor of the mother; moreover, the funds paid to the clerk by the father’s employer after garnishment belonged to the child and not to the mother as set out in §11-35-23. Lumbermens Mut. Casualty Co. v. Rhodes, 459 So. 2d 244, 1984 Miss. LEXIS 2000 (Miss. 1984).

Unliquidated claims for damages are not subject to garnishment. Goodyear Tire & Rubber Co. v. Ross, 201 Miss. 624, 30 So. 2d 66, 1947 Miss. LEXIS 430 (Miss. 1947).

Compensation of deputy tax assessor which is paid by tax assessor himself held exempt from garnishment. Pickle v. McLaughlin, 162 Miss. 693, 139 So. 157, 1932 Miss. LEXIS 116 (Miss. 1932).

A bank deposit in name of an individual followed by “agent” or “trustee” may in action against depositor be garnished, subject to defense that the depositor did not own funds and full disclosure of true owner. Turner v. Nicholson, 151 Miss. 18, 117 So. 329, 1928 Miss. LEXIS 273 (Miss. 1928).

Where a mercantile business was conducted under a name without a sign disclosing the real owners, the property used and acquired therein is subject to the debts of the person so transacting the business, and the proceeds of the policy of fire insurance on goods burned while in such use are liable to the creditors of the party who transacted such business and may be garnished. Meridian Land & Industrial Co. v. J. B. Ormond & Co., 82 Miss. 758, 35 So. 179, 1903 Miss. LEXIS 192 (Miss. 1903).

An unliquidated liability for damages because of tort is not subject to garnishment either at law or in equity. Blair v. Kansas C., M. & B. R. Co., 76 Miss. 478, 24 So. 879, 1898 Miss. LEXIS 110 (Miss. 1898).

3. Assignment or transfer prior to garnishment.

Where husband and wife sold land for cash and purchase money notes which the husband assigned to the wife, and a judgment creditor of the husband garnished the purchaser and collected money on his judgment, the wife had no claim against the judgment creditor for any of the money, so collected. Russell v. Allen, 110 Miss. 722, 70 So. 890, 1916 Miss. LEXIS 198 (Miss. 1916).

A valid assignment of a judgment will defeat a subsequent garnishment of the judgment debtor by a creditor of the assignor, although when the garnishment was served such debtor had no notice of the assignment. Schoolfield v. Hirsh, 71 Miss. 55, 14 So. 528, 1893 Miss. LEXIS 190 (Miss. 1893).

Where a railroad company, after receiving notice that an employee in this state has assigned his wages, is summoned as garnishee in a suit against such laborer in another state, and, through neglect of the notice, answers admitting the indebtedness, and judgment is rendered against it, the same will be no defense to an action subsequently brought by the assignee of the debt. Illinois C. R. Co. v. Bryant, 70 Miss. 665, 12 So. 592, 1893 Miss. LEXIS 14 (Miss. 1893).

OPINIONS OF THE ATTORNEY GENERAL

All garnishment monies should be paid into court before they are disbursed to the judgment creditor. Tate, June 3, 1992, A.G. Op. #92-0372.

Garnishment proceeds should be sent directly to the plaintiff or his attorney, not to the justice court. Denny, Apr. 29, 2005, A.G. Op. 05-0074.

RESEARCH REFERENCES

ALR.

Form of judgment against garnishee respecting obligation payable in instalments. 7 A.L.R.2d 680.

Retirement or pension proceeds or annuity as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Right of creditors of life insured as to options or other benefits available to him during his lifetime. 37 A.L.R.2d 268.

Sharecropper’s share in crop wholly or partly unharvested as subject to garnishment. 82 A.L.R.2d 858.

Garnishment of salary, wages, or commissions where defendant debtor is indebted to garnishee-employer. 93 A.L.R.2d 995.

Funds deposited in court as subject of garnishment. 1 A.L.R.3d 936.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint debtors. 11 A.L.R.3d 1465.

Joint Bank Account as Subject to Attachment, Garnishment, or Execution by Creditor of One Joint Depositor. 86 A.L.R.5th 527.

§ 11-35-24. Multiple garnishments.

  1. Where more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served. In the event more than one (1) garnishment on an employee is received on the same day, the writ of garnishment which is the smallest amount shall be satisfied first. However, in every case, garnishments issued pursuant to court ordered child support shall have first priority, even if previous garnishments are in effect or pending.
  2. Any such conflicting or subsequent garnishments on an employee of the garnishee shall be returned to the court issuing such writ of garnishment with a statement by the garnishee that a previous garnishment is in effect. Such statement shall operate as a stay of the subsequent garnishment until satisfaction of any prior garnishments has been made.
  3. Upon satisfaction of the writ of garnishment in progress, the garnishee shall immediately begin collection of such writ of garnishment with next priority.
  4. Good faith compliance with this section shall release the garnishee from any liability for failure of compliance with this section.

HISTORY: Laws, 1981, ch. 469, § 5, eff from and after passage (approved April 7, 1981).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Necessary parties.

2. Priority.

1. Necessary parties.

Circuit court could not fully and completely determine priority of garnishors without first retrying that the creditor join the prior garnishors under Miss. R. Civ. P. 19(a). The prior garnishors had a significant pecuniary interest in the disposition of the creditor’s motion to determine priority and the circuit court’s subsequent fulfillment of that request. Y-D Lumber Co. v. Humphreys County, 2 So.3d 793, 2009 Miss. App. LEXIS 68 (Miss. Ct. App. 2009).

2. Priority.

Chancery court erred in granting each party involved a portion of the money rather than determining the order of descending priority because the attorney’s charging lien attached and had priority over the third-party garnishors; one garnishor had priority over the other because it was the first to serve a company with a writ of garnishment related to any funds it owed. Bar-Til, Inc. v. Superior Asphalt, Inc., 219 So.3d 553, 2017 Miss. App. LEXIS 261 (Miss. Ct. App. 2017).

Not only did a circuit court err when it determined that priority of garnishments under Miss. Code Ann. §11-35-24 was based on service of the writ rather than the filing of the writ but if prior garnishors’ services of process on a garnishee were defective, the date of service for each was the day the garnishee waived the defense of insufficient service of process by filing an answer to that garnishor’s writ. However, the court could not assume that the garnishee waived service of process in the same order that the prior garnishors’ attempted service. Y-D Lumber Co. v. Humphreys County, 2 So.3d 793, 2009 Miss. App. LEXIS 68 (Miss. Ct. App. 2009).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 418, 419 et seq.

CJS.

38 C.J.S., Garnishment § 265.

§ 11-35-25. Answer of the garnishee.

  1. Every person duly summoned as a garnishee shall answer on oath as to the following particulars, viz.:
    1. Whether he be indebted to the defendant or were so indebted at the time of the service of the writ on him, or have at any time since been so indebted; and, if so indebted, in what sum, whether due or not, and when due or to become due, and how the debt is evidenced, and what interest it bears;
    2. What effects of the defendant he has or had at the time of the service of the writ on him, or has had since, in his possession or under his control;
    3. Whether he knows or believes that any other person is indebted to the defendant; and, if so, whom, and in what amount, and where he resides; and
    4. Whether he knows or believes that any other person has effects of the defendant in his possession or under his control; and, if so, whom, and where he resides.
  2. In addition to answering as to the particulars in subsection (1) of this section, each person duly summoned as a garnishee in any case in which he be indebted to the defendant for wages, salary or other compensation shall answer on oath as to whether the defendant is an employee of the garnishee and, if so, the time interval between pay periods of the defendant including any specific day of a week or month on which such defendant is regularly paid.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (6), ch. 62, art. 7 (1); 1857, ch. 52, art. 4, ch. 61, art. 313; 1871, §§ 874, 1430; 1880, §§ 1783, 2422; 1892, § 2135; 1906, § 2342; Hemingway’s 1917, § 1937; 1930, § 1843; 1942, § 2788; Laws, 1981, ch. 469, § 2, eff from and after passage (approved April 7, 1981).

Cross References —

Property exempt from seizure under execution or attachment, see §85-3-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Defects in answer.

3. Debtor’s discharge in bankruptcy.

4. Setoff.

1. In general.

A garnishee which failed to file an answer to a writ of garnishment as required by §11-35-25 and instead paid $10 per week of the judgment debtor’s salary directly to the attorney for the judgment holder was liable to the debtor for monies wrongfully withheld after expiration of the judgment where, although the judgment and execution thereon had expired after seven years as provided in §§15-1-3,15-1-43 and although the judgment holder had failed to file another suit on the judgment prior to the expiration of the seven years as required by §15-1-47 to extend the judgment lien, the garnishee continued to pay the $10 per week to the judgment holder for two years after the judgment had lapsed. Anderson-Tully Co. v. Brown, 383 So. 2d 1389, 1980 Miss. LEXIS 2023 (Miss. 1980).

A default judgment against a garnishee, who instead of filing a formal answer wrote the clerk of the court a letter which the clerk failed to file or note on the docket, is properly set aside upon the court’s attention being called to the letter. Thompson v. Thompson, 236 Miss. 31, 109 So. 2d 530, 1959 Miss. LEXIS 290 (Miss. 1959).

A garnishee purporting to answer a writ of garnishment should disclose whether any indebtedness existed at the time of the service of writ or thereafter and whether there was any property in the hands of the garnishee and also that the answers must be made under oath. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

In a garnishment action where a letter was written to the court by the garnishee in which he stated that there was no indebtedness due judgment debtor, that fact should have been alleged in garnishee’s answer to the writ of garnishment. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

As distinguished from garnishee in chancery attachment, garnishee in law garnishment must answer whether it owes, or has in its possession effects of, nonresident defendant, and also must answer whether it knows or believes that any other person is indebted to, or has in his possession effects of such nonresident, and, if so, whom, in what amounts, and where he resides; and garnishee, to protect himself, is also under duty to raise question of exemption of the debtor-defendant, as well as the validity of the judgment on which the garnishment is based. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Judgment creditor may, if facts justify it, suggest any one or more of the four grounds for garnishment herein enumerated. Universal Life Ins. Co. v. Catchings, 169 Miss. 26, 152 So. 817, 1934 Miss. LEXIS 23 (Miss. 1934).

Garnishee on return day, if desiring to interpose defense to writ, should file answer setting up defense and not motion to quash writ. Busby v. Merchants' & Mfrs' Bank, 158 Miss. 843, 131 So. 645, 1931 Miss. LEXIS 1 (Miss. 1931).

The answer of the garnishee should be a substantial compliance with this statute. Arky v. Cameron, 92 Miss. 632, 46 So. 54, 1908 Miss. LEXIS 198 (Miss. 1908).

Where a railroad company contracts with one to build its roadbed and the contractor sublets a part of the work, and the employees of the subcontractor garnish the railroad company, and where the company answers stating the facts and pays the amount of money into the court due the contractor, the defense is complete and the company fully acquitted. Herrin v. Warren & Mobley, 61 Miss. 509, 1894 Miss. LEXIS 60 (Miss. 1894).

The garnishees being partners, the answer of one admitting liability is binding on the partnership. Anderson v. Wanzer, 6 Miss. 587, 1841 Miss. LEXIS 41 (Miss. 1841).

2. Defects in answer.

Answer of garnishees admitting indebtedness due but alleging that such indebtedness was subject to certain attachments was too vague and indefinite to raise an issue relative thereto. Mechanics' & Traders' Ins. Co. v. Butler, 115 Miss. 476, 76 So. 521, 1917 Miss. LEXIS 221 (Miss. 1917).

If the garnishee file an answer endeavoring to deny liability, though the answer be inartificially drawn or fail to conform strictly to the statute, the plaintiff will not be permitted to strike it from the files and take judgment for his debt, he must except to the answer. Little v. Nelson, 61 Miss. 672, 1884 Miss. LEXIS 151 (Miss. 1884).

3. Debtor’s discharge in bankruptcy.

Garnishee’s effort to set up judgment debtor’s discharge in bankruptcy held not answer to garnishment writ. England Motor Co. v. Greenville Commercial Body Co., 163 Miss. 22, 138 So. 591, 1932 Miss. LEXIS 12 (Miss. 1932).

In garnishment proceeding, garnishee had no authority to set up judgment debtor’s bankruptcy proceeding, such defense being personal to the debtor. England Motor Co. v. Greenville Commercial Body Co., 163 Miss. 22, 138 So. 591, 1932 Miss. LEXIS 12 (Miss. 1932).

Where garnishee attempted to set up debtor’s discharge in bankruptcy, and judgment was rendered against garnishee, court should have permitted garnishee at same term to file answer in accordance with facts. England Motor Co. v. Greenville Commercial Body Co., 163 Miss. 22, 138 So. 591, 1932 Miss. LEXIS 12 (Miss. 1932).

4. Setoff.

The strict rule of law as to pleading setoff in an ordinary action does not apply where the garnishee pleads a setoff to the debt he owes a judgment debtor. Melton Hardware Co. v. Heidelberg, 91 Miss. 598, 44 So. 857, 1907 Miss. LEXIS 158 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Garnishee’s pleading, answering interrogatories, or the like, as affecting his right to assert court’s lack of jurisdiction. 41 A.L.R.2d 1093.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 319 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 241 et seq.; Forms 271 et seq.

§ 11-35-27. Garnishee’s answer; time.

Except as otherwise provided in Section 11-35-23, garnishees shall, in all cases in the circuit or chancery court, answer on the first day of the return term, and, in the courts of justices of the peace, they shall answer by noon on the return day of the writ, unless the court, for cause shown, shall grant further time; and, if upon the answer of any garnishee, it appear that there is any estate of the defendant in the hands of any person not summoned, an alias writ may at once be issued, to be levied on the property in the hands of such person, or he may be summoned as garnishee.

HISTORY: Codes, 1857, ch. 52, art. 26; 1871, § 1443; 1880, § 2444; 1892, § 2140; 1906, § 2347; Hemingway’s 1917, § 1942; 1930, § 1848; 1942, § 2800; Laws, 2017, ch. 407, § 11, eff from and after July 1, 2017.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Amendment Notes —

The 2017 amendment added the exception at the beginning, and made a related change.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

A default judgment entered against garnishee on return day of writ was irregular on its face, garnishee being entitled to entire return day in which to make his answer, and it should have been set aside upon application duly filed at any time before final adjournment of the term of court at which it was entered. Rogers v. Ziller, 48 So. 2d 476 (Miss. 1950).

Answer of garnishee must be filed in justice court within the time prescribed and on failure to do so cannot be filed in the circuit court on appeal. Gulf & S. I. R. Co. v. Ramsey, 98 Miss. 863, 54 So. 440, 1910 Miss. LEXIS 135 (Miss. 1910); Southern Lumber & Mfg. Co. v. Mallett, 101 Miss. 135, 57 So. 548, 1911 Miss. LEXIS 113 (Miss. 1911); Jamison v. H. K. Mulford Co., 108 Miss. 639, 67 So. 148, 1914 Miss. LEXIS 251 (Miss. 1914).

The garnishee may answer at any time after service of the writ and need not wait until the beginning of the term. The plaintiff, if the answer be filed before the return day, may require an additional answer. Columbus Ins. & Banking Co. v. Hirsh, 61 Miss. 74, 1883 Miss. LEXIS 75 (Miss. 1883).

Garnishees may answer before the term begins to which the writ is returnable. Columbus Ins. & Banking Co. v. Hirsh, 61 Miss. 74, 1883 Miss. LEXIS 75 (Miss. 1883).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 241 et seq.; Forms 271 et seq.

§ 11-35-29. Judgment on answer.

If the garnishee admits indebtedness to or the possession of effects of the defendant, and he have not paid or delivered the same to the sheriff, judgment may be rendered against him in favor of the plaintiff for the amount of the debt admitted, or for the property, or the value thereof (to be assessed if necessary), admitted to be in his possession; but the judgment shall not be for a greater sum than the plaintiff’s demand.

HISTORY: Codes, 1892, § 2137; 1906, § 2344; Hemingway’s 1917, § 1939; 1930, § 1845; 1942, § 2797.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in this section. The word “admit” was changed to “admits”. The Joint Committee ratified the correction at its December 3, 1996, meeting.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where an answer in a garnishment proceeding was filed which did not raise an issue of fact, and the plaintiff in garnishment did not contest the extent of the discovery or the truthfulness of the answer, judgment on the answer was properly entered. State Farm Mut. Auto. Ins. Co. v. Sampson, 324 So. 2d 739, 1975 Miss. LEXIS 1596 (Miss. 1975).

Where a fire insurance company, being garnished, filed a sworn certificate which is silent as to any indebtedness to defendant in attachment, but states that it had issued a policy to claimant of the property attached, which had burned, but that the policy had been avoided and nothing is due assured, this shows an attempt to comply with the summons, and it is error, without notice to the garnishee and opportunity to amend, to render judgment as for want of an answer. Threefoot v. Whittle, 71 Miss. 392, 15 So. 120 (Miss. 1893).

A judgment against a garnishee does not operate as a transfer to the garnishing creditor of the debt owing by the garnishee, nor until payment thereof is it a bar to a suit against the garnishee by the defendant, his creditor. Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 So. 271, 1893 Miss. LEXIS 166 (Miss. 1893).

A creditor may proceed to judgment against his debtor notwithstanding the latter has been garnished in respect to the debt sued for, but this being shown, the judgment should require execution to be stayed for the amount for which the defendant has been or is sought to be charged as garnishee. Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 So. 271, 1893 Miss. LEXIS 166 (Miss. 1893).

Where a judgment against a garnishee in attachment shows that the defendant in the suit consented to such judgment the garnishee cannot have it reversed on the grounds that there was no precedent judgment against the defendant. Daniel v. Daniels & Co., 62 Miss. 352, 1884 Miss. LEXIS 80 (Miss. 1884).

Where a judgment recites that the garnishee admitted the indebtedness for which it was rendered, it is not error that the garnishee was not served with the writ and no answer by him appears on the record brought to the Supreme Court. Daniel v. Daniels & Co., 62 Miss. 352, 1884 Miss. LEXIS 80 (Miss. 1884).

The judgment against the garnishee must not be larger than the judgment against the original defendant. Hoffman v. Levi Simon & Co., 52 Miss. 302, 1876 Miss. LEXIS 214 (Miss. 1876).

§ 11-35-31. Garnishee’s failure to answer.

If a garnishee, personally summoned, shall fail to answer as required by law, or if a scire facias on a judgment nisi be executed on him, and he fail to show cause for vacating it, the court shall enter a judgment against him for the amount of plaintiff’s demand; and execution shall issue thereon, provided, however, that the garnishee may suspend the execution by filing a sworn declaration in said court showing the property and effects in his possession belonging to the debtor, and his indebtedness to the debtor, if any, or showing that there be none, if that be true; and by such act and upon a hearing thereon, the garnishee shall limit his liability to the extent of such property and effects in his hands, and such indebtedness due by him to the debtor, plus court costs and reasonable attorney’s fees of the judgment creditor in said garnishment action.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (19), ch. 62, art. 7 (2); 1857, ch. 52, art. 25; 1871, § 1442; 1880, § 2446; 1892, § 2138; 1906, § 2345; Hemingway’s 1917, § 1940; 1930, § 1846; 1942, § 2798; Laws, 1966, ch. 364, § 1, eff from and after passage (approved May 20, 1966).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Construction and application.

3. Illustrative cases.

1. In general.

Where a sworn declaration is filed pursuant to §11-35-31 prior to execution on the default judgment, a defaulting garnishee suffers only liability for attorney’s fees and court costs and does not waive its ability to assert defenses on the merits. Wayne Lee's Grocery & Market, Inc. v. Bay St. Louis, Mississippi Commercial Properties Dev. Corp., 580 So. 2d 1295, 1991 Miss. LEXIS 321 (Miss. 1991).

The penalty for failure to answer a writ of garnishment in a timely manner is bearing the expense of putting the creditor in the same position that it would have enjoyed had a timely answer been filed. In other words, the defaulting garnishee must pay over any amounts which would have been caught by the garnishment and pay costs and attorney’s fees. Wayne Lee's Grocery & Market, Inc. v. Bay St. Louis, Mississippi Commercial Properties Dev. Corp., 580 So. 2d 1295, 1991 Miss. LEXIS 321 (Miss. 1991).

Right of garnishee to vacate default judgment, allow answer to be filed and to obtain hearing to determine extent of property and effects in possession of garnishee is as provided in garnishment statute (§11-35-31); inconsistent provisions of Mississippi Rule of Procedure 60 are inapplicable. Federal Sav. & Loan Ins. Corp. v. S. & W. Constr. Co., 475 So. 2d 145, 1985 Miss. LEXIS 2314 (Miss. 1985).

In a garnishment action by a judgment creditor, in an automobile accident case against the insurer of an automobile which had been driven by the uninsured judgment debtor, the court did not abuse its discretion in setting aside a default judgment against the insurer, where at the same term of court at which the default judgment was rendered, the insurer was able to show cause for vacating the default judgment, and the court did in fact vacate that judgment. St. Paul Fire & Marine Ins. Co. v. Arnold, 254 So. 2d 872, 1971 Miss. LEXIS 1522 (Miss. 1971).

A garnishee purporting to answer a writ of garnishment should disclose whether any indebtedness existed at the time of the service of writ or thereafter and whether there was any property in the hands of the garnishee and also that the answers must be made under oath. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

Where garnishee on return day under scire facias after judgment nisi did not file answer, no issue was presented, warranting exclusion of evidence setting up defense. Busby v. Merchants' & Mfrs' Bank, 158 Miss. 843, 131 So. 645, 1931 Miss. LEXIS 1 (Miss. 1931).

When a person is summoned as garnishee and fails to appear and answer the writ, the law presumes that he admits the debt to be due equal to the amount of the demand and on this assumption permits a judgment to be taken against him. Little v. Nelson, 61 Miss. 672, 1884 Miss. LEXIS 151 (Miss. 1884).

2. Construction and application.

Response to a writ of garnishment, claiming a party was not indebted at the time the writ issued, if properly asserted, would have unquestionably entitled the party to relief from the garnishment without the need for a Miss. R. Civ. P. 60(b) inquiry. Bechtel Power Corp. v. MMC Materials, Inc., 830 So. 2d 672, 2002 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 830 So. 2d 1251, 2002 Miss. App. LEXIS 731 (Miss. Ct. App. 2002).

In order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment; one cannot wait to file a declaration to suspend the execution until the execution has been completed, the answer filed, the funds paid into court and disbursed by the clerk to the judgment creditor. Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061, 2001 Miss. App. LEXIS 135 (Miss. Ct. App. 2001).

A garnishee who failed to answer a writ of garnishment was liable only for attorney’s fees and costs where the judgment debtor who was employed by the garnishee had no non-exempt disposable earnings which were not subject to prior garnishments. Wayne Lee's Grocery & Market, Inc. v. Bay St. Louis, Mississippi Commercial Properties Dev. Corp., 580 So. 2d 1295, 1991 Miss. LEXIS 321 (Miss. 1991).

Garnishee properly answered writ of garnishment under Mississippi Code §11-35-31 where garnishee’s response invoked her marital privilege, even though response set forth none of information sought by creditor. Fidelity Nat'l Bank v. Center Management, Inc., 585 F. Supp. 1406, 1984 U.S. Dist. LEXIS 15921 (S.D. Miss. 1984).

A garnishee, even though the subject of an otherwise valid default judgment following service of the writ of garnishment and failure to answer, may nevertheless, under §11-35-31, suspend execution and enforcement of that judgment at any time before completion of the execution of the enforcement process thereon. First Mississippi Nat'l Bank v. KLH Industries, Inc., 457 So. 2d 1333, 1984 Miss. LEXIS 1978 (Miss. 1984).

In order to suspend the execution of a writ of garnishment, the sworn declaration required by the statute must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment. Haley v. State, 404 So. 2d 320, 1981 Miss. LEXIS 2409 (Miss. 1981).

A default judgment against a garnishee failing to answer may not be set aside at a term of court following that of its rendition because the garnishee made an attempt in good faith to answer by preparing one which through mistake was not forwarded to the clerk of the court. George v. Standard Oil Co., 239 Miss. 712, 124 So. 2d 858, 1960 Miss. LEXIS 346 (Miss. 1960).

In a garnishment action where a letter was written to the court by the garnishee in which he stated that there was no indebtedness due judgment debtor, that fact should have been alleged in garnishee’s answer to the writ of garnishment. Hussey v. Hussey, 224 Miss. 856, 82 So. 2d 442, 1955 Miss. LEXIS 547 (Miss. 1955).

Where as to a writ of garnishment issued to nonresident express company doing business in the state, the garnishee had the right to raise legal question as to jurisdiction of the court and also the reasonableness of its refusal to answer certain questions, the action of the trial court in striking out the answer of the garnishee and rendering judgment against him without first ordering a hearing, and ordering the garnishee to answer the questions and then to give it ample time within which to do so, was reversible error. Keathley v. Hancock, 212 Miss. 1, 53 So. 2d 29, 1951 Miss. LEXIS 422 (Miss. 1951).

Default judgment against garnishee will not be set aside for failure of garnishee’s agent to file its answer to writ of garnishment. Campbell v. Yazoo & M. V. R. Co., 199 Miss. 309, 24 So. 2d 531, 1946 Miss. LEXIS 199 (Miss. 1946).

Where garnishee attempted to set up debtor’s discharge in bankruptcy, and judgment was rendered against garnishee, court should have permitted garnishee at same term to file answer in accordance with facts. England Motor Co. v. Greenville Commercial Body Co., 163 Miss. 22, 138 So. 591, 1932 Miss. LEXIS 12 (Miss. 1932).

Judgment setting aside judgment in garnishment proceeding at subsequent term on undisposed of motion made during term at which judgment was rendered was not void, and clerk was improperly enjoined from setting aside judgment. Meggett v. Greenville Commercial Body Co., 161 Miss. 370, 137 So. 187, 1931 Miss. LEXIS 273 (Miss. 1931).

Where railroad company, garnished on valid judgment against its employee, defaulted in answering by time fixed by law and judgment was rendered against it, which it paid, it could set off amount thereof against a debt to its employee where such money was not exempt from execution or garnishment. Gulf, M. & N. R. Co. v. Sanders, 143 Miss. 492, 108 So. 184, 1926 Miss. LEXIS 285 (Miss. 1926).

A judgment by default taken against a garnishee on the second day of the term of court to which it was returnable, should be set aside when it appears that the garnishee failed to answer because of a misleading statement of the debtor that the controversy had been settled. Miller v. Port Gibson Brick Mfg. Co., 78 Miss. 170, 28 So. 807, 1900 Miss. LEXIS 83 (Miss. 1900).

Where an insurance company being garnished files its sworn certificate that it had issued a policy to a claimant on the property attached which had burned, but that the policy has been avoided and nothing is due the assured, which certificate is silent as to any indebtedness to the defendant in attachment, this shows an attempt to comply with the summons, and it is error, without notice to the garnishee and opportunity to amend, to render judgment as for want of an answer. Threefoot v. Whittle, 71 Miss. 392, 15 So. 120 (Miss. 1893).

3. Illustrative cases.

As the “earth movement” endorsement in a contractor’s general commercial liability policy excluded from coverage the property damage a homeowner suffered, the insurer had no property in its possession belonging to the contractor; therefore the trial court properly set aside the homeowner’s default judgment against the insurer pursuant to Miss. Code Ann. §11-35-31 and granted the insurer summary judgment on the homeowner’s action for a writ of garnishment. Hankins v. Md. Cas. Company/Zurich Am. Ins. Co., 101 So.3d 645, 2012 Miss. LEXIS 491 (Miss. 2012).

OPINIONS OF THE ATTORNEY GENERAL

If particular judgment debtor was not employed by garnishee and garnishee did not owe or have possession of that judgment debtor’s property then there would be no liability for garnishee that followed provisions of statute. Gibson, April 12, 1990, A.G. Op. #90-0220.

RESEARCH REFERENCES

ALR.

Validity of statute or rule providing for arbitration of fee disputes between attorneys and their clients. 17 A.L.R.4th 993.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

§ 11-35-33. Garnishee may claim exemptions.

Any garnishee who answers admitting an indebtedness, or the possession of property due or belonging to the defendant, may show by his answer that he is advised and believes that the defendant does or will claim the debt or property, or some part thereof, as exempt from garnishment, levy, or sale. Upon the filing of such answer, the clerk or justice of the peace shall issue a summons or make publication, if defendant be shown by oath to be absent from the state, for the defendant, notifying him of the garnishment and the answer, and requiring him to assert his right to the exemption. Proceedings against the garnishee shall be stayed until the question of the debtor’s right to the exemption be determined. If the defendant fail to appear, judgment by default may be taken against him, adjudging that he is not entitled to the property or debt as exempt; but if he appear, the court shall, on his motion, cause an issue to be made up and tried between him and the plaintiff.

HISTORY: Codes, 1892, § 2139; 1906, § 2346; Hemingway’s 1917, § 1941; 1930, § 1847; 1942, § 2799.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Exemption of income or principal from an employee trust plan, see §71-1-43.

Exempt property, see §85-3-1 et seq.

Officer’s bond of indemnity, see §85-3-5.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Failure to suggest exemption.

3. Waiver of exemption.

1. In general.

The statute does not require the garnishee to suggest in its answer any possibility that funds are exempt as to a joint account holder to the account subject to garnishment; it only requires the garnishee to raise the question of an exemption as to the judgment debtor if there is a reasonable basis to think the judgment debtor intended to make such a claim. Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061, 2001 Miss. App. LEXIS 135 (Miss. Ct. App. 2001).

Where a judgment debtor is only entitled to notice of the garnishment action if the garnishee suggests exemptions under this section, the notice provisions of M.R.C.P. 55 are inconsistent with the statutes, and are not applicable. Folse v. Stennett-Yancey, 757 So. 2d 989, 2000 Miss. LEXIS 67 (Miss. 2000).

Where a judgment creditor failed to join issue raised in answers filed both by the judgment debtor and garnishee as to whether the indebtedness owing by the garnishee to the judgment debtor was dischargeable in bankruptcy, chancery court was without jurisdiction to render final orders in the garnishment proceedings. Hunter v. Commercial Sec. Co., 237 Miss. 41, 113 So. 2d 127, 1959 Miss. LEXIS 571 (Miss. 1959).

On suggestion of exemption, all proceedings should be stayed pending notice to judgment debtor and determination of that issue. Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363, 1928 Miss. LEXIS 283 (Miss. 1928).

Failure to issue summons for garnishee after securing writ of certiorari within proper time, after claim of exemption had been allowed, and issuing summons only for judgment defendant, held not to bar proceedings as to garnishee, since petition and bond were filed and writ issued within statutory limits. Citizens' Bank v. Ratliff & Bradshaw, 142 Miss. 866, 108 So. 146, 1926 Miss. LEXIS 136 (Miss. 1926).

Judgment creditor, having issued certiorari within statutory limit after allowance of exemption on return to writ of garnishment, held not estopped to prosecute writ because garnishee had paid out money in its hands before filing petition. Citizens' Bank v. Ratliff & Bradshaw, 142 Miss. 866, 108 So. 146, 1926 Miss. LEXIS 136 (Miss. 1926).

On suggestion of an exemption in the answer the court must summon the exemptioners. Illinois C. R. Co. v. Badley, 94 Miss. 437, 49 So. 114, 1909 Miss. LEXIS 366 (Miss. 1909).

As to the rule governing the exemption from garnishment of the wages of a laborer or other person who is the head of a family working for wages, see Chapman v. Berry, 73 Miss. 437, 18 So. 918, 1895 Miss. LEXIS 107 (Miss. 1895).

Exemption of the wages of a laborer under Mississippi law from a debt due in the state to a resident of the state cannot be defeated by a garnishment against a railroad, indebted to such laborer, in a foreign state where such railroad also has a line, and the court will give effect to the exemption laws, regardless of the laws of the foreign state. Illinois C. R. Co. v. Smith, 70 Miss. 344, 12 So. 461, 1892 Miss. LEXIS 129 (Miss. 1892), overruled in part, Southern P. R. Co. v. A. J. Lyon & Co., 54 So. 784 (Miss. 1911), overruled, Southern P. R. Co. v. A. J. Lyon & Co., 99 Miss. 186, 54 So. 728, 1911 Miss. LEXIS 188 (Miss. 1911).

2. Failure to suggest exemption.

As distinguished from garnishee in chancery attachment, garnishee in law garnishment must answer whether it owes, or has in its possession effects of, nonresident defendant, and also must answer whether it knows or believes that any other person is indebted to, or has in his possession effects of such nonresident, and, if so, whom, in what amounts, and where he resides; and garnishee to protect himself, is also under duty to raise question of exemption of the debtor-defendant as well as the validity of the judgment on which the garnishment is based. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

In action by employee against railroad company to recover wages, if exemption from garnishment is not pleaded or proven in record, Supreme Court on appeal cannot take cognizance thereof so as to defeat company’s claim of right to set off amount which it had paid under garnishment in action against employee. Gulf, M. & N. R. Co. v. Sanders, 143 Miss. 492, 108 So. 184, 1926 Miss. LEXIS 285 (Miss. 1926).

On failure of garnishee to suggest the name of a claimant to the debt judgment only can be rendered against the garnishee. Russell v. Allen, 110 Miss. 722, 70 So. 890, 1916 Miss. LEXIS 198 (Miss. 1916); Howell v. Moss Point Furniture Co., 136 Miss. 399, 101 So. 559, 1924 Miss. LEXIS 152 (Miss. 1924).

A garnishee who pays a judgment rendered against it as such and takes an assignment of the judgment on which the writ was issued, remains liable to the judgment debtor where the debt garnished was exempt as the monthly wages of the head of a family, and the garnishee has failed to suggest the claim of exemption. City of Laurel v. Turner, 80 Miss. 530, 31 So. 965, 1902 Miss. LEXIS 281 (Miss. 1902).

Exemptions are highly favored by the law and their protection may not be defeated by the intention or the neglect of the garnishee. City of Laurel v. Turner, 80 Miss. 530, 31 So. 965, 1902 Miss. LEXIS 281 (Miss. 1902).

3. Waiver of exemption.

Defendant in garnishment proceedings, voluntarily appearing and failing to submit claim of exemption, waived his right to do so. Blaylock v. J. Rubel & Co., 119 So. 503, 1928 Miss. LEXIS 395 (Miss. 1928).

OPINIONS OF THE ATTORNEY GENERAL

If a garnishee suggests an exemption, the court should send notice to the judgment debtor for a hearing on the exemption; the judgment holder is responsible for prepayment of service of process costs and process from justice court should be issued to a constable and paid as provided by Section 25-7-27. Shirley, Mar. 14, 2003, A.G. Op. #03-0114.

RESEARCH REFERENCES

ALR.

Admissibility of hearsay evidence as to comparable sales of other land as basis for expert’s opinion as to land value. 12 A.L.R.3d 1064.

§ 11-35-35. Stay if debt not yet due; delivery of goods or chattels to sheriff.

If a garnishee admit an indebtedness not then due, execution shall be stayed until its maturity; and if he admit the possession of goods or chattels of the defendant, such goods or chattels shall be delivered to the sheriff; but, in attachment cases, the garnishee may replevy the property by giving a bond for the same, as the defendant in attachment may do, and subject to the same proceedings and liabilities.

HISTORY: Codes, 1857, ch. 52, art. 27; 1871, § 1444; 1880, § 2445; 1892, § 2141; 1906, § 2348; Hemingway’s 1917, § 1943; 1930, § 1849; 1942, § 2801.

Cross References —

Attachment for a debt not due, see §11-33-35.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

If a garnishee answers admitting an indebtedness not due, execution will be stayed until maturity. If he denies the indebtedness and on a trial it is found that he owes a debt not then due, judgment will be stayed as if the fact had been confessed in the answer. Red v. Powers, 69 Miss. 242, 13 So. 586, 1891 Miss. LEXIS 133 (Miss. 1891).

Where judgment is taken upon an answer, which is not contested, admitting a debt not due, it should stay the execution; but if it fail to do so execution cannot be rightfully issued until the debt is due. Anderson v. Wanzer, 6 Miss. 587, 1841 Miss. LEXIS 41 (Miss. 1841).

§ 11-35-37. Garnishee protected in certain cases.

If a garnishee shall pay over or deliver, in pursuance of the judgment or process of the court, any money or property belonging to the defendant, before notice of sale, assignment, or transfer thereof by the defendant to any other person, such garnishee shall not thereafter be liable for the debt or property to the vendee or assignee thereof.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 7 (5); 1857, ch. 52, art. 36; 1871, § 1453; 1880, § 2447; 1892, § 2142; 1906, § 2349; Hemingway’s 1917, § 1944; 1930, § 1850; 1942, § 2802.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

The mere pendency of a garnishment against the payee in a note does not exempt him from liability in an action on the note. Brahan v. First Nat'l Bank, 72 Miss. 266, 16 So. 203, 1894 Miss. LEXIS 63 (Miss. 1894).

§ 11-35-39. Garnishee may plead that judgment is void.

The garnishee may plead that the judgment under which the writ of garnishment was issued is void, and if his plea be sustained, no judgment shall be rendered against him.

HISTORY: Codes, 1906, § 2350; Hemingway’s 1917, § 1945; 1930, § 1851; 1942, § 2803.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Where at the hearing on a writ of garnishment issued against an automobile liability insurer the claimed policy of insurance was not introduced in evidence or made a part of the record, it would be impossible to determine whether it covered either the driver or the automobile allegedly responsible for the collision or the damage resulting therefrom, and for this reason it was error to grant judgment on the garnishment writ. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So. 2d 438, 1968 Miss. LEXIS 1448 (Miss. 1968).

Reversal of the main judgment annuls a judgment against a garnishee. Grain Dealers Mut. Ins. Co. v. Langlinais, 240 Miss. 258, 126 So. 2d 869, 1961 Miss. LEXIS 457 (Miss. 1961).

As distinguished from garnishee in chancery attachment, garnishee in a law garnishment must answer whether it owes, or has in its possession effects of, nonresident defendant, and also must answer whether it knows or believes that any other person is indebted to, or has in his possession effect of such nonresident, and, if so, whom, in what amounts, and where he resides; and garnishee, to protect himself, is also under duty to raise question of exemption of the debtor-defendant as well as the validity of the judgment on which the garnishment is based. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Notation on declaration whereby defendant’s attorney waived process and entered appearance during term, without attestation by clerk of court, held not to authorize default judgment, and therefore such judgment furnished no basis for recovery from garnishee. Industrial Inv. Co. v. Standard Life Ins. Co., 170 Miss. 138, 149 So. 883, 1933 Miss. LEXIS 11 (Miss. 1933).

A judgment by default against a garnishee cannot be sustained where the original judgment was void and will be reversed on appeal. Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375, 1924 Miss. LEXIS 127 (Miss. 1924).

The validity of judgment against a garnishee is dependent upon the validity of the judgment in the main action. Moody & Williams v. Dye, 125 Miss. 770, 88 So. 332, 1921 Miss. LEXIS 165 (Miss. 1921).

To attack a judgment against a garnishee the fact that the judgment is void should be specially pleaded. Russell v. Allen, 110 Miss. 722, 70 So. 890, 1916 Miss. LEXIS 198 (Miss. 1916).

Entrance of irregular return on writ which does not render it void. Reeves Grocery Co. v. Thompson, 105 Miss. 729, 63 So. 187, 1913 Miss. LEXIS 244 (Miss. 1913).

A garnishment upon a judgment against the “Southern Insurance Company of New Orleans” is not void and the garnishee cannot escape liability because the record does not show whether the defendant in the judgment is a corporation, natural person, or a partnership. Winner v. McMullan, 77 Miss. 662, 27 So. 618 (Miss. 1900).

§ 11-35-41. Garnishee may compel interpleader.

When a garnishee, by his answer or by affidavit at any time before final judgment against him, or after such judgment if he had no such notice before the judgment was rendered, shall show that he has been notified that another person claims title to or an interest in the debt or property, which has been admitted by him, or found on a trial to be due or to be in his possession, the court shall suspend all further proceedings, and cause a summons to issue or publication to be made for the person so claiming to appear and contest with the plaintiff the right to such money, debt, or property. In such case, if the answer admit an indebtedness, and the garnishee pay the money into court, he shall thereupon be discharged from liability to either party for the sum so paid. And whenever such garnishee shall by said answer or affidavit show that he has been notified that another person claims title to or interest in such debt or property, it shall be lawful for such third person of his own motion to come in and claim the debt or property, and the claim shall be tried as other claimant’s issues are tried whether summons or publication has been made to bring him in or not.

HISTORY: Codes, 1857, ch. 52, art. 34; 1871, § 1451; 1880, § 2449; 1892, § 2143; 1906, § 2351; Hemingway’s 1917, § 1946; 1930, § 1852; 1942, § 2804.

Cross References —

Interpleader proceedings, see Miss. R. Civ. P. 22.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Right of interpleader.

3. —After judgment.

4. Duties and liabilities of garnishee.

5. —Payment into court.

6. Procedure.

1. In general.

Charging lien, protecting the attorney’s right to the fruits of his labor, and the right to interplead, protecting the garnishee from double liability, should not intersect with each other in such a way that frustrates one or the other right. Bar-Til, Inc. v. Superior Asphalt, Inc., 219 So.3d 553, 2017 Miss. App. LEXIS 261 (Miss. Ct. App. 2017).

Chancery court erred in granting each party involved a portion of the money rather than determining the order of descending priority because the attorney’s charging lien attached and had priority over the third-party garnishors; the monies satisfying the final judgment were interpled as the direct result of the law firm’s services, and the judgment was declared satisfied in full. Bar-Til, Inc. v. Superior Asphalt, Inc., 219 So.3d 553, 2017 Miss. App. LEXIS 261 (Miss. Ct. App. 2017).

A federal interpleader action brought in its own jurisdiction by a nonresident judgment debtor of an insolvent Mississippi judgment creditor was dismissed where, under Code 1942, §§ 1362 and 2804, ample procedures existed for the protection of the judgment debtor’s rights in Mississippi. Hansen v. Mathews, 424 F.2d 1205, 1970 U.S. App. LEXIS 10987 (7th Cir. Wis.), cert. denied, 397 U.S. 1057, 90 S. Ct. 1404, 25 L. Ed. 2d 675, 1970 U.S. LEXIS 2256 (U.S. 1970).

One to whom accounts have been assigned as security may, upon recovering judgment against assignor, garnish account-debtors. Ralston Purina Co. v. Como Feed & Milling Co., 325 F.2d 844, 1963 U.S. App. LEXIS 3722 (5th Cir. Miss. 1963).

Persons owing accounts which have been assigned by the creditor to another as security for an indebtedness may be garnished by the assignee on recovering a judgment against the assignor. Ralston Purina Co. v. Como Feed & Milling Co., 325 F.2d 844, 1963 U.S. App. LEXIS 3722 (5th Cir. Miss. 1963).

Where the assignment of accounts receivable as collateral security was less than absolute and the assignor retained certain interests, the assignment was not a valid defense in garnishment proceedings brought by the assignee against the assigned account debtors after it had obtained a judgment against the assignor, for the garnishees would be fully protected from double liability under this section [Code 1942, § 2804]. Ralston Purina Co. v. Como Feed & Milling Co., 325 F.2d 844, 1963 U.S. App. LEXIS 3722 (5th Cir. Miss. 1963).

In view of the protection afforded by this section [Code 1942, § 2804] to the rights of a joint owner, a debt due to several persons jointly, but not as partners, may be garnished by the creditors of one of them. Fewell v. American Surety Co., 80 Miss. 782, 28 So. 755, 1902 Miss. LEXIS 213 (Miss. 1902).

A case where a garnishee impleaded assignee of judgment against it, although it had no notice of the assignment at the time writ of garnishment was served. Schoolfield v. Hirsh, 71 Miss. 55, 14 So. 528, 1893 Miss. LEXIS 190 (Miss. 1893).

The statutory mode of procedure is a substitute for the remedy by interpleader in equity. Kellogg v. Freeman, 50 Miss. 127, 1874 Miss. LEXIS 32 (Miss. 1874).

2. Right of interpleader.

Where in attachment it is suggested that a party has property of defendant, and such party answers he has no control over the property and does not know whether it belongs to defendant, but that it is in a building he leased defendant, whereupon an order is made that such party surrender property to the sheriff, this is not a garnishment, and does bar the rightful owner of the right to assert title because of the failure of the party sought to be garnished to compel interpleader. Minshew v. Geo. W. Davidson & Co., 86 Miss. 354, 38 So. 315, 1905 Miss. LEXIS 29 (Miss. 1905).

In absence of allegation by garnishee of notification of third person’s claim, a third person, of his own motion, has no right to come in and claim the money, debt or property. Porter v. West, 64 Miss. 548, 8 So. 207, 1886 Miss. LEXIS 107 (Miss. 1886).

The maker of a note cannot maintain a bill of interpleader against an indorsee and an attaching creditor of the payee after the former has obtained judgment by suit, and the latter by garnishment against him. McKinney v. Kuhn, 59 Miss. 186, 1881 Miss. LEXIS 98 (Miss. 1881).

On the answer of a bank as garnishee denying indebtedness to the defendant, the defendant’s transfer by check of a deposit to a third person may be attacked as fraudulent and its validity determined in a court of law, although such third person be summoned not at the suggestion of the garnishee, but of the plaintiff. Kellogg v. Freeman, 50 Miss. 127, 1874 Miss. LEXIS 32 (Miss. 1874); People's Bank of Biloxi v. Smith, 75 Miss. 753, 23 So. 428, 1898 Miss. LEXIS 21 (Miss. 1898).

3. —After judgment.

Provision for invocation of interpleader after final judgment means that the right of interpleader will exist where notice of the adverse claim by a third person has only been received by the garnishee after final judgment, but not as applying where such knowledge existed before judgment and was voluntarily withheld; in the latter case, it is too late to demand an interpleader after judgment. Dodds v. Gregory, Stagg & Co., 61 Miss. 351, 1883 Miss. LEXIS 135 (Miss. 1883).

4. Duties and liabilities of garnishee.

Where a husband and wife sold land for cash and purchase money notes, which the husband assigned to the wife, and a judgment creditor of the husband garnisheed the purchaser, it was the duty of the garnishee, the wife being a co-payee on the notes, to suggest the wife’s ownership and thereby place the law court in a position to implead the wife and the judgment creditor, and where the garnishee failed to do this, the court could do nothing but render judgment against the garnishee in favor of the judgment creditor. Russell v. Allen, 110 Miss. 722, 70 So. 890, 1916 Miss. LEXIS 198 (Miss. 1916).

Where a garnishee, after answer, learns of an assignment of his debt, he must amend his answer or interplead the assignee, otherwise he subjects himself to a double payment of the debt. Lewis v. Dunlop, 57 Miss. 130, 1879 Miss. LEXIS 29 (Miss. 1879); Dodds v. Gregory, Stagg & Co., 61 Miss. 351, 1883 Miss. LEXIS 135 (Miss. 1883).

Where the garnishee is indebted to the defendant as guardian and so answers, and his answer is controverted, and the plaintiff insists that the debt is due to the defendant individually, the garnishee should interplead the guardian or ward, if of age. If he fail to do so and judgment go against him equity will not aid him when proceeded against by the ward. Horton v. Grant, 56 Miss. 404, 1879 Miss. LEXIS 137 (Miss. 1879).

Where judgment has not been rendered against the garnishee, the statute provides his remedy. A plea that he has been garnished is not a bar to a suit by a third party; he should be made a claimant under this statute. Morin v. Bailey, 55 Miss. 570, 1878 Miss. LEXIS 11 (Miss. 1878).

5. —Payment into court.

Where a railroad company contracted with one to build its roadbed and the contractor sublet a part of the work, and the employees of the subcontractor garnished the railroad company, and the railroad company answered stating the facts and paid the money due the contractor into court, its defense was complete and the company fully acquitted. Herrin v. Warren & Mobley, 61 Miss. 509, 1894 Miss. LEXIS 60 (Miss. 1894).

6. Procedure.

Where garnishees answered admitting indebtedness but claimed that indebtedness was subject to certain attachments, the answer was too vague and indefinite to raise an issue. Mechanics' & Traders' Ins. Co. v. Butler, 115 Miss. 476, 76 So. 521, 1917 Miss. LEXIS 221 (Miss. 1917).

Under Code 1892, § 2143, an issue made up orally was proper, no objection being made, although under Code 1892, § 2144 it could have been required that the claim be propounded under oath. First Nat'l Bank v. Fain Grocery Co., 87 Miss. 503, 40 So. 6, 1905 Miss. LEXIS 164 (Miss. 1905).

§ 11-35-43. Claim of third person tried.

If the claimant, being duly summoned, fail to appear, the court shall adjudge the money, debt, or property to the plaintiff. If he appear, he shall propound his claim to the money, debt, or property in writing under oath; and the plaintiff may take issue thereon, and the same shall be tried and determined as other issues. If the issue be found in favor of the plaintiff, judgment shall be rendered for him against the garnishee, and also for the costs of the interpleader against the claimant; but if the issue be found for the claimant, judgment shall be rendered in his favor against the garnishee, and against the plaintiff for the costs. Where the garnishee has paid money into court, the judgment shall direct its payment to the party entitled thereto, and a judgment therefor shall not go against the garnishee.

HISTORY: Codes, 1857, ch. 52, art. 35; 1871, § 1452; 1880, § 2450; 1892, § 2144; 1906, § 2352; Hemingway’s 1917, § 1947; 1930, § 1853; 1942, § 2805.

Cross References —

Trial of right of property, see §11-23-1 et seq.

Interpleader proceedings, see Miss. R. Civ. P. 22.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Trial court may allow judgment creditor to join issue on third party claim after expiration of term to which garnishment was returnable and at which claim was filed. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

Trial court’s decision allowing judgment creditor to join issue on third party claim after term to which garnishment is returnable is reviewable only in case of abuse of discretion. Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749, 1934 Miss. LEXIS 353 (Miss. 1934).

Under Code 1892, § 2143, an issue made up orally was proper, no objection being made, although under Code 1892, § 2144 it could have been required that the claim be propounded under oath. First Nat'l Bank v. Fain Grocery Co., 87 Miss. 503, 40 So. 6, 1905 Miss. LEXIS 164 (Miss. 1905).

RESEARCH REFERENCES

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment §§ 506 et seq.

§ 11-35-45. Contest of garnishee’s answer by plaintiff.

If the plaintiff believe that the answer of the garnishee is untrue, or that it is not a full discovery as to the debt due by the garnishee, or as to the property in his possession belonging to the defendant, he shall, at the term when the answer is filed, unless the court grant further time, contest the same, in writing, specifying in what particular he believes the answer to be incorrect. Thereupon, the court shall try the issue at once, unless cause be shown for a continuance, as to the truth of the answer, and shall render judgment upon the facts found, when in plaintiff’s favor, as if they had been admitted by the answer, but if the answer be found correct, the garnishee shall have judgment for costs against the plaintiff.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (21), ch. 62, art. 7 (4); 1857, ch. 52, art. 28; 1871, § 1445; 1880, § 2451; 1892, § 2145; 1906, § 2353; Hemingway’s 1917, § 1948; 1930, § 1854; 1942, § 2806.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Time for contest.

3. Trial of issue.

4. —Evidence.

5. —Burden of proof.

6. Judgment.

1. In general.

Under the section, the garnishor must file a written contest to the garnishee’s answer in order to frame the issue to be tried. State Farm Mut. Auto Ins. Co. v. Eakins, 707 So. 2d 1100, 1997 Miss. App. LEXIS 817 (Miss. Ct. App. 1997), rev'd, 1998 Miss. LEXIS 593 (Miss. Dec. 10, 1998).

Where a judgment creditor failed to join issue raised in answers filed both by the judgment debtor and garnishee as to whether the indebtedness owing by the garnishee to the judgment debtor was dischargeable in bankruptcy, chancery court was without jurisdiction to render final orders in the garnishment proceedings. Hunter v. Commercial Sec. Co., 237 Miss. 41, 113 So. 2d 127, 1959 Miss. LEXIS 571 (Miss. 1959).

The garnishee’s answer is conclusive until contested as provided by law. Williams v. Jones, 42 Miss. 270, 1868 Miss. LEXIS 60 (Miss. 1868); Grenada Bank v. Seligman, 164 Miss. 168, 143 So. 474, 1932 Miss. LEXIS 212 (Miss. 1932).

2. Time for contest.

Response to a writ of garnishment, claiming a party was not indebted at the time the writ issued, if properly asserted, would have unquestionably entitled the party to relief from the garnishment without the need for a Miss. R. Civ. P. 60(b) inquiry, and the proper remedy was to remand the case to allow the party a reasonable opportunity in the trial court to contest the denial of indebtedness. Bechtel Power Corp. v. MMC Materials, Inc., 830 So. 2d 672, 2002 Miss. App. LEXIS 299 (Miss. Ct. App.), cert. denied, 830 So. 2d 1251, 2002 Miss. App. LEXIS 731 (Miss. Ct. App. 2002).

The answer of the garnishee must be contested at the return term or leave then granted by the court to contest it at a subsequent term. Hattiesburg Trust & Banking Co. v. Hood, 97 Miss. 340, 52 So. 790, 1910 Miss. LEXIS 274 (Miss. 1910); Mechanics' & Traders' Ins. Co. v. Butler, 115 Miss. 476, 76 So. 521, 1917 Miss. LEXIS 221 (Miss. 1917).

On certiorari to circuit court an answer of a garnishee in the justice court cannot be contested unless the answer clearly admits liability. Hattiesburg Trust & Banking Co. v. Hood, 97 Miss. 340, 52 So. 790, 1910 Miss. LEXIS 274 (Miss. 1910).

This section [Code 1942, § 2806] is imperative in requiring that a plaintiff wishing to contest the answer of a garnishee shall file his traverse at the term to which the answer is filed. Application made at a subsequent term for leave to file such traverse should be denied. Consumers' Ice Co. v. Cook Well Co., 71 Miss. 886, 16 So. 259, 1894 Miss. LEXIS 29 (Miss. 1894).

3. Trial of issue.

The issue cannot be submitted to a jury at the same time with the issue between plaintiff and defendant in attachment. Roberts v. Barry, 42 Miss. 260, 1868 Miss. LEXIS 57 (Miss. 1868).

4. —Evidence.

Where the answer is contested, it is not itself evidence. Lasley v. Sisloff, 8 Miss. 157, 1843 Miss. LEXIS 70 (Miss. 1843).

On such an issue it is not necessary to produce the original judgment in evidence. Lasley v. Sisloff, 8 Miss. 157, 1843 Miss. LEXIS 70 (Miss. 1843).

5. —Burden of proof.

In a post-judgment garnishment action in which in which the garnishee sought to recover against a motor vehicle insurance company on a judgment obtained in a motor vehicle personal injury action, there was a presumption that the person driving the insured motor vehicle did so with the permission of the insured owner. State Farm Mut. Auto Ins. Co. v. Eakins, 707 So. 2d 1100, 1997 Miss. App. LEXIS 817 (Miss. Ct. App. 1997), rev'd, 1998 Miss. LEXIS 593 (Miss. Dec. 10, 1998).

Judgment creditor in automobile negligent suit has burden of proving compliance with conditions precedent to recovery under judgment debtor’s automobile liability insurance policy in garnishment action against debtor’s automobile liability carrier. Leader Nat'l Ins. Co. v. Lindsey, 477 So. 2d 1323, 1985 Miss. LEXIS 2184 (Miss. 1985).

Judgment creditor in automobile negligence suit satisfies burden of proving notice of suit, as condition precedent to recovery under judgment debtor’s automobile liability insurance policy, in garnishment action against judgment debtor’s automobile liability carrier by evidence showing actual knowledge on part of carrier and its agents of both accident and existence of lawsuit sufficient to enable carrier to take necessary steps to protect itself from legal liability. Leader Nat'l Ins. Co. v. Lindsey, 477 So. 2d 1323, 1985 Miss. LEXIS 2184 (Miss. 1985).

Judgment creditor has burden of proof to show answer was untrue. Grenada Bank v. Seligman, 164 Miss. 168, 143 So. 474, 1932 Miss. LEXIS 212 (Miss. 1932).

The burden of proof in such an issue is on the plaintiff, and if it appear that the defendant had assigned the note due by the garnishee the transfer will be presumed to have been bona fide. Thomas v. Sturges, 32 Miss. 261, 1856 Miss. LEXIS 193 (Miss. 1856).

6. Judgment.

Judgment on pleadings for judgment creditor on traverse of garnishees’ answer held unauthorized, in absence of proof to support contest, though garnishees failed to appear. Grenada Bank v. Seligman, 164 Miss. 168, 143 So. 474, 1932 Miss. LEXIS 212 (Miss. 1932).

Where court erroneously rendered judgment on pleadings for judgment creditor traversing garnishees’ answer, cause should be remanded to give opportunity to offer proof. Grenada Bank v. Seligman, 164 Miss. 168, 143 So. 474, 1932 Miss. LEXIS 212 (Miss. 1932).

One who accepted devise conditioned upon payment of an annuity to another was subject to garnishment for the debts of such other person, and where issue joined upon traverse of the answer was found against him, judgment was properly rendered against him “as if the facts found had been confessed by the garnishee in his answer.” Red v. Powers, 69 Miss. 242, 13 So. 586, 1891 Miss. LEXIS 133 (Miss. 1891).

RESEARCH REFERENCES

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Attachment And Garnishment, Forms 291 et seq.

§ 11-35-47. Contest of garnishee’s answer by defendant.

The defendant may contest, in writing, the answer of the garnishee, and may allege that the garnishee is indebted to him in a larger sum than he has admitted, or that he holds property of his not admitted by the answer, and shall specify in what particular the answer is untrue or defective. Thereupon an issue shall be made up and tried; but the plaintiff may take judgment for the sum admitted by the garnishee, or for the condemnation of the property admitted to be in his hands, notwithstanding the contest.

HISTORY: Codes, 1857, ch. 52, art. 32; 1871, § 1449; 1880, § 2452; 1892, § 2146; 1906, § 2354; Hemingway’s 1917, § 1949; 1930, § 1855; 1942, § 2807.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Circuit court had authority to add a former husband to the garnishment proceeding between his former wife and his employer because the husband possessed a sufficient interest to be joined; the husband’s personal property was under the employer’s control, and he asserted that the wife obtained title and possession to that property through fraudulent misrepresentation. Cooper v. Estate of Gatwood, 119 So.3d 1031, 2013 Miss. LEXIS 412 (Miss. 2013).

In a garnishment proceeding against an insurer brought by the judgment creditor of the insured, the insured was not an indispensable party. Moore v. Sentry Ins. Co., 399 F. Supp. 929, 1975 U.S. Dist. LEXIS 16141 (S.D. Miss. 1975).

§ 11-35-49. Transfer to other county; change of venue.

Writs of garnishment, in all cases, may be issued to any county; but if the garnishee whose answer is contested, shall not be a resident of the county, then, upon an issue being made upon his answer, the venue of the trial of the issue may be changed, on his application, to the county of his residence. The court in which the issue is tried shall cause the facts found to be certified and returned with the issue to the court from which the writ issued, and judgment shall be entered thereupon as if the issue had there been tried.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 4 (27), art. 13 (4); 1857, ch. 52, art. 29; 1871, § 1446; 1880, § 2453; 1892, § 2147; 1906, § 2355; Hemingway’s 1917, § 1950; 1930, § 1856; 1942, § 2808.

Cross References —

Change of venue, generally, see §§11-11-51 through11-11-59.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

A defendant in garnishment proceedings cannot object to the venue because of the garnishee’s residence in another county, and an order of transfer made on defendant’s application is void. McCloud v. McCullers, 84 Miss. 20, 36 So. 65, 1904 Miss. LEXIS 3 (Miss. 1904).

A defendant in attachment cannot avail of the right to a change of venue given by this section [Code 1942, § 2808] to garnishees who reside out of the county and whose answers are controverted. McCloud v. McCullers, 84 Miss. 20, 36 So. 65, 1904 Miss. LEXIS 3 (Miss. 1904).

§ 11-35-51. Judgment on issue against garnishee.

If the issue in any case be found against the garnishee, judgment shall be rendered against him for the amount of the debt or money or property in his hands, which judgment shall be in favor of the plaintiff, if necessary to satisfy his judgment or claim against the defendant, or in favor of the defendant, if the judgment of the plaintiff have been satisfied, or for so much thereof as may remain after satisfying said judgment.

HISTORY: Codes, 1857, ch. 52, art. 33; 1871, § 1450; 1880, § 2454; 1892, § 2148; 1906, § 2356; Hemingway’s 1917, § 1951; 1930, § 1857; 1942, § 2809.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-35-53. Valuation and discharge of judgment.

If the personal property levied on under an attachment, or any part thereof, shall have been left in the hands of the garnishee on his giving bond as prescribed, the court or jury trying the issue between the plaintiff and garnishee, if it find for the plaintiff, shall assess the value of the property left in the hands of the garnishee. If the value of the property equal or exceed the amount due the plaintiff, judgment shall be entered against the garnishee and his sureties on his replevin bond for the sum due the plaintiff. If the value of the property be less than the amount due the plaintiff, judgment shall be entered against the garnishee and his sureties for the value of the property so replevied or left in his hands. If judgment by default shall be rendered against the garnishee, the value of the property so replevied or left in his hands shall be assessed, and judgment shall be entered as above provided. In all cases the judgment against the garnishee and his sureties shall be satisfied and discharged by the delivery to the sheriff of the property replevied or left in his hands within ten days after execution on the judgment shall have come to the hands of the sheriff, and he shall sell the property so delivered to him, and apply the proceeds to the payment of the execution.

HISTORY: Codes, 1857, ch. 52, art. 9; 1871, § 1448; 1880, § 2455; 1892, § 2149; 1906, § 2357; Hemingway’s 1917, § 1952; 1930, § 1858; 1942, § 2810.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

But in case of a reversal for want of such finding of value the judgment will stand and a writ of inquiry only be awarded. Atkinson v. Foxworth, 53 Miss. 733, 1876 Miss. LEXIS 142 (Miss. 1876).

The only remedy for an insufficient replevy bond is against the officer taking the same. Atkinson v. Foxworth, 53 Miss. 733, 1876 Miss. LEXIS 142 (Miss. 1876).

And the value of each separate item thereof must be found. Thomason v. Wadlington, 53 Miss. 560, 1876 Miss. LEXIS 115 (Miss. 1876).

The jury must assess the value of the property. Bedon v. Alexander, 47 Miss. 254, 1872 Miss. LEXIS 70 (Miss. 1872).

§ 11-35-55. No final judgment in certain cases.

Final judgment upon a garnishment shall not go against a surety or accommodation indorser until judgment be rendered against the principal and the cosureties or prior indorsers who may be liable to judgment, if they be residents of the state.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 13 (1); 1857, ch. 52, art. 30; 1871, § 1447; 1880, § 2456; 1892, § 2150; 1906, § 2358; Hemingway’s 1917, § 1953; 1930, § 1859; 1942, § 2811.

Cross References —

Contract of accommodation party to negotiable instrument, see §75-3-415.

Suits on indorsed bills and notes, see §75-13-3.

Law of principal and surety, see §87-5-1.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

A judgment is not erroneous as a violation of this statute unless it appear affirmatively that the principal debtor or other party liable is a resident of this state. Thrasher v. John Buckingham & Co., 40 Miss. 67, 1866 Miss. LEXIS 51 (Miss. 1866).

§ 11-35-57. Executors and administrators may be garnished.

Executors and administrators may be garnished for a debt due by their testator or intestate to the defendant; but judgment shall not be entered in such case against an executor or administrator until the lapse of six months after the grant of letters; and they may be garnished as having effects due to legatees or distributees; but judgment shall not be rendered against them in such case, except with their consent, until after a final settlement of the estate.

HISTORY: Codes, 1857, ch. 52, art. 24; 1871, § 1485; 1880, § 2457; 1892, § 2151; 1906, § 2359; Hemingway’s 1917, § 1954; 1930, § 1860; 1942, § 2812.

Cross References —

What actions survive against an executor, see §91-7-235.

Executor or administrator not to be sued for six months, see §91-7-239.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Decree in attachment for alimony against executors, as trustees, of estate which was finally settled with all debts paid except for ten-year trust estate provided by will, which did not interfere with trust although fixing a lien on real estate attached, and awarded wife and child amount of annuity due husband from estate, held proper, notwithstanding statutory provision that judgment should not be rendered against executors before final settlement without their consent, since there was an actual if not formal settlement, and purpose of statute was to hold estate free from process against heirs until debts of estate were paid. Kearney v. Kearney, 178 Miss. 766, 174 So. 59, 1937 Miss. LEXIS 246 (Miss. 1937).

In a suit against an executor a debtor of the testator may be garnished. Thrasher v. John Buckingham & Co., 40 Miss. 67, 1866 Miss. LEXIS 51 (Miss. 1866).

RESEARCH REFERENCES

ALR.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

§ 11-35-59. Proceedings if garnishee dies.

If the garnishee dies, like proceedings may be had as provided for in case of the death of a party to an action.

HISTORY: Codes, 1880, § 2458; 1892, § 2152; 1906, § 2360; Hemingway’s 1917, § 1955; 1930, § 1861; 1942, § 2813.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in this section. The word “die” was changed to “dies”. The Joint Committee ratified the correction at its December 3, 1996, meeting.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-35-61. Garnishee compensation; conditions.

The garnishee shall be allowed for his attendance, out of the debts or effects in his possession, or against the plaintiff in attachment, judgment, or decree in case there be no debts or effects in his possession, provided he shall put in his answer within the time prescribed by law, the pay and mileage of a juror, and, in exceptional cases rendering it proper, the court may allow the garnishee reasonable compensation additional to the foregoing and to be obtained in the same way.

HISTORY: Codes, Hutchinson’s 1848, ch. 62, art. 7 (6); 1857, ch. 52, art. 37; 1871, § 1454; 1880, § 2448; 1892, § 2153; 1906, § 2361; Hemingway’s 1917, § 1956; 1930, § 1862; 1942, § 2814.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

A garnishee may be allowed compensation for filing his answer together with pay and mileage as a juror, but the court cannot allow him an attorney’s fee for defending his answer. Carruthers-Jones Shoe Co. v. Chickasaw County Bank, 112 Miss. 315, 73 So. 49, 1916 Miss. LEXIS 110 (Miss. 1916).

A garnishee entitled to costs under this section [Code 1942, § 2814] should be allowed payment of same out of the fund in his hands, although a third person interpleads and establishes his right to such fund. The garnishing plaintiff is ultimately liable for all costs in such case, but it is error to refuse the garnishee his allowance out of the fund and tax the same against the plaintiff, thereby imposing risk upon the garnishee in collecting costs out of the plaintiff. Clark v. Gresham, 67 Miss. 203, 7 So. 223, 1889 Miss. LEXIS 47 (Miss. 1889).

The statute which authorizes the court, in exceptional cases, to allow the garnishee reasonable compensation in addition to per diem and mileage, does not warrant the allowance to him of his attorney’s fee in a controversy between the plaintiff and garnishee, the good faith of the transaction between the defendant and the garnishee being the subject of the issue. Senior v. Brogan, 66 Miss. 178, 6 So. 649, 1888 Miss. LEXIS 84 (Miss. 1888).

Chapter 37. Replevin

§§ 11-37-1 through 11-37-57. Repealed.

Repealed by Laws of 1975, ch. 508, § 30, eff from and after July 1, 1975.

§11-37-1. [Codes, Hutchinson’s 1848, ch. 56, art. 11(2); 1857, ch. 56, art. 2; 1871, § 1529; 1880, § 2613; 1892, § 3707; 1906, § 4214; Hemingway’s 1917, § 3043; 1930, § 3079; 1942, § 2841]

§11-37-3. [Codes, 1880, § 2635; 1892, § 3708; 1906, § 4215; Hemingway’s 1917, § 3004; 1930, § 3080; 1942, § 2842]

§11-37-5. [Codes, 1880, § 2634; 1892, § 3709; 1906, § 4216; Hemingway’s 1917, § 3045; 1930, § 3081; 1942, § 2843]

§11-37-7. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1530; 1880, § 2614; 1892, § 3710; 1906, § 4217; Hemingway’s 1917, § 3046; 1930, § 3082; 1942, § 2844]

§11-37-9. [Codes, 1880, § 2636; 1892, § 3711; 1906, § 4218; Hemingway’s 1917, § 3047; 1930, § 3083; 1942, § 2845]

§11-37-11. [Codes, 1880, § 2615; 1892, § 3712; 1906, § 4219; Hemingway’s 1917, § 3048; 1930, § 3084; 1942, § 2846]

§11-37-13. [Codes, 1880, § 2639; 1892, § 3713; 1906, § 4220; Hemingway’s 1917, § 3049; 1930, § 3085; 1942, § 2847]

§11-37-15. [Codes, 1880, § 2622; 1892, § 3714; 1906, § 4221; Hemingway’s 1917, § 3050; 1930, § 3086; 1942, § 2848]

§11-37-17. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1531; 1880, § 2616; 1892, § 3715; 1906, § 4222; Hemingway’s 1917, § 3051; 1930, § 3087; 1942, § 2849; Laws, 1924, ch. 166]

§11-37-19. [Codes 1892, § 3716; 1906, § 4223; Hemingway’s 1917, § 3052; 1930, § 3088; 1942, § 2850]

§11-37-21. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1531; 1880, § 2617; 1892, § 3717; 1906, § 4224; Hemingway’s 1917, § 3053; 1930, § 3089; 1942, § 2851; Laws, 1926, ch. 151]

§11-37-23. [Codes, 1892, § 3718; 1906, § 4225; Hemingway’s 1917, § 3054; 1930, § 3090; 1942, § 2852]

§11-37-25. [Codes, 1880, § 2638; 1892, § 3719; 1906, § 4226; Hemingway’s 1917, § 3055; 1930, § 3091; 1942, § 2853]

§11-37-27. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (8); 1857, ch. 56, art. 9; 1871, § 1536; 1880, § 2626; 1892, § 3720; 1906, § 4227; Hemingway’s 1917, § 3056; 1930, § 3092; 1942, § 2854]

§11-37-29. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (9); 1857, ch. 56, art. 10; 1871, § 1537; 1880, § 2627; 1892, § 3721; 1906, § 4228; Hemingway’s 1917, § 3057; 1930, § 3093; 1942, § 2855]

§11-37-31. [Codes, 1880, § 2618; 1892, § 3722; 1906, § 4229; Hemingway’s 1917, § 3058; 1930, § 3094; 1942, § 2856]

§11-37-33. [Codes, 1880, § 2619; 1892, § 3723; 1906, § 4230; Hemingway’s 1917, § 3059; 1930, § 3095; 1942, § 2857]

§11-37-35. [Codes, 1880, § 2620; 1892, § 3724; 1906, § 4231; Hemingway’s 1917, § 3060; 1930, § 3096; 1942, § 2858]

§11-37-37. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (4); 1857, ch. 56, art 4; 1871, § 1532; 1880, § 2621; 1892, § 3725; 1906, § 4232; Hemingway’s 1917, § 3061; 1930, § 3097; 1942, § 2859; Laws, 1960, ch. 269]

§11-37-39. [Codes, Hutchinson’s 1848, ch. 56, art. 11 (5); 1857, ch. 56, art. 5; 1871, § 1533; 1880, § 2622; 1892, § 3726; 1906, § 4233; Hemingway’s 1917, § 3062; 1930, § 3098; 1942, § 2860]

§11-37-41. [Codes, 1880, § 2623; 1892, § 3727; 1906, § 4234; Hemingway’s 1917, § 3063; 1930, § 3099; 1942, § 2861]

§11-37-43. [Codes, 1880, § 2623; 1892, § 3728; 1906, § 4235; Hemingway’s 1917, § 3064; 1930, § 3100; 1942, § 2862]

§11-37-45. [Codes, 1857, ch. 56, art. 7; 1871, § 1535; 1880, § 2624; 1892, § 3729; 1906, § 4236; Hemingway’s 1917, § 3065; 1930, § 3101; 1942, § 2863]

§11-37-47. [Codes, 1880, § 2628; 1892, § 3730; 1906, § 4237; Hemingway’s 1917, § 3066; 1930, § 3102; 1942, § 2864]

§11-39-49. [Codes, 1880, § 2629; 1892, § 3731; 1906, § 4238; Hemingway’s 1917, § 3067; 1930, § 3103; 1942, § 2865]

§11-39-51. [Codes, 1880, § 2630; 1892, § 3732; 1906, § 4239; Hemingway’s 1917, § 3068; 1930, § 3104; 1942, § 2866]

§11-39-53. [Codes, 1880, § 2631; 1892, § 3733; 1906, § 4240; Hemingway’s 1917, § 3069; 1930, § 3105; 1942, § 2867]

§11-39-55. [Codes, 1880, § 2632; 1892, § 3734; 1906, § 4241; Hemingway’s 1917, § 3070; 1930, § 3106; 1942, § 2868]

§11-39-57. [Codes, 1880, § 2633; 1892, § 3735; 1906, § 4242; Hemingway’s 1917, § 3071; 1930, § 3107; 1942, § 2869]

Editor’s Notes —

Laws of 1975, ch. 508, § 30, effective July 1, 1975, additionally provides that “nothing in this act shall be construed to defeat or affect in any manner whatsoever any proceeding or cause of action commenced prior to the effective date of this act under the authority of the statutes hereby repealed.” As to current statutory provisions dealing with replevin actions, see §11-37-101 et seq.

Former §11-37-1 related to how replevin commenced.

Former §11-37-3 related to form of affidavit.

Former §11-37-5 related to venue.

Former §11-37-7 related to the writ.

Former §11-37-9 related to form of the writ.

Former §11-37-11 related to how and when writ may be executed.

Former §11-37-13 related to form of return of officer.

Former §11-37-15 related to officer’s valuation prima facie evidence.

Former §11-37-17 related to property restored to defendant on bond.

Former §11-37-19 related to form of bond by defendant.

Former §11-37-21 related to plaintiff may give bond and receive property – bond to cover damage to, or depreciation in value of, property covered.

Former §11-37-23 related to plaintiff in certain cases has first right to bond.

Former §11-37-25 related to form of plaintiff’s replevin bond.

Former §11-37-27 related to bond returned, and may be excepted to.

Former §11-37-29 related to new bond may be required.

Former §11-37-31 related to property to be sold, when.

Former §11-37-33 related when property not taken, plaintiff may elect to recover damages.

Former §11-37-35 related to duplicate, alias, and pluries writs, and publication.

Former §11-37-37 related to the pleadings.

Former §11-37-39 related to judgment for plaintiff – default – writ of inquiry.

Former §11-37-41 related to judgment for defendant – default – writ of inquiry.

Former §11-37-43 related to judgment where no bond is given.

Former §11-37-45 related to execution.

Former §11-37-47 related to claim of property by third person.

Former §11-37-49 related to claim of property by third person – issue, trial and judgment.

Former §11-37-51 related to claim of property by third person – judgment in favor of claimant.

Former §11-37-53 related to claim of property by third person – claimant considered a plaintiff.

Former §11-37-55 related to laws applicable in case of death.

Former §11-37-57 related to replevin not maintainable in certain cases.

§ 11-37-101. How replevin commenced; immediate seizure of property sought.

If any person, his agent or attorney, shall file a complaint under oath setting forth:

A description of any personal property;

The value thereof, giving the value of each separate article and the value of the total of all articles;

The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all contracts and documents evidencing his claim;

That the property is in the possession of the defendant; and

That the defendant wrongfully took and detains or wrongfully detains the same; and shall present such pleadings to a justice of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice court judge or other duly elected judge, such justice or judge may issue an order directing the clerk of such court to issue a writ of replevin for the seizure of the property described in said complaint, upon the plaintiff posting a good and valid replevin bond in favor of the defendant, for double the value of the property as alleged in the complaint, conditioned to pay any damages which may arise from the wrongful seizure of said property by the plaintiff. The said writ shall be directed to the sheriff or other lawful officer, returnable as a summons before the proper circuit or county court where the value of the property, as alleged in the complaint, exceeds the jurisdictional amount of the justice court, or to the circuit or county court or the proper justice court if the value shall not exceed such amount. The complaint along with the order of the court, the writ of replevin with the officer’s return thereon, and the bond of the plaintiff shall be filed in the proper court at once. Writs of replevin may be made returnable to the proper court of another county where the property may be found.

HISTORY: Laws, 1975, ch. 508, § 1; Laws, 1990, ch. 344, § 1, eff from and after July 1, 1990.

Cross References —

Attachment of perishable commodities, see §§11-1-43 to11-1-49 and11-1-55.

Proceedings in replevin, attachment, and enforcement of liens, see §11-9-135.

Attachment against parters, see §11-33-5.

Replevin of attached property, see §§11-33-45 et seq.

Alternative procedure where immediate seizure of property is not sought, see §§11-37-131 et seq.

Cases in which replevin is not maintainable, see §11-37-155.

Replevy of an animal, see §69-13-27.

Repossession by secured party of collateral by action under Uniform Commercial Code, see §75-9-609.

Replevy of exempt property wrongfully levied upon, see §85-3-9.

Posting of bond and replevy of property seized, see §85-7-47.

Selling of goods not replevied, see §89-7-69.

Procedure when goods are replevied, see §§89-7-89 et seq.

Salvage of abandoned boats, logs, etc., see §§89-17-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Circuit court properly affirmed the dismissal of a former mother-in-law’s complaint for replevin of two rings, a cameo, and a figurine against her former daughter-in-law because while the former mother-in-law put on proof of the value of the rings, the circuit court determined that the former daughter-in-law had not wrongfully retained the property inasmuch as it was awarded to her in her divorce. Stevens v. Grissom, 214 So.3d 298, 2017 Miss. App. LEXIS 154 (Miss. Ct. App. 2017).

Trial court acted within its authority in ruling on a tenant’s unlawful-reentry issue against a landlord because the tenant’s claims against both the towing company which removed vehicles from the tenant’s leased premises and the landlord stemmed from the landlord’s action in using self-help to have the vehicles removed. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

Because issues regarding the possessory rights of the parties remained unresolved, remand for a new trial on the merits was warranted to determine which party had a superior possessory right, under Miss. Code Ann. §§11-37-101 and85-7-251, to vehicles which a towing company towed from an auto repairman’s leased premises at the landlord’s direction. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

Tenant, who operated an auto repair business on leased premises, met the statutory requirements to maintain a replevin action against the towing company for the return of the tenant’s vehicles, when the towing company removed and stored the vehicles at the landlord’s direction, Further, the tenant, who claimed possession of the vehicles under the theory of bailment, was not required to show title ownership of the vehicles or a written and documented mechanic’s lien. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

After reviewing the replevin code provisions, Miss. Code Ann. §11-37-101 through Miss. Code Ann. §11-37-157, the appellate court found no requirement that a replevin order had to be issued by means of an agreed order, and nothing indicated that the trial court was without authority to enter a non-agreed order, which was essentially what it did, and any error on the part of the trial court simply did not rise to the level of reversible error where the order merely enforced a settlement agreement to which the husband had already agreed. Madison v. Madison, 922 So. 2d 832, 2006 Miss. App. LEXIS 127 (Miss. Ct. App. 2006).

Prisoner, who was proceeding pro se in replevin action against police officers, failed to set forth proof that property was in possession of officers, and thus prisoner failed to meet essential element of his claim and officers were entitled to judgment as matter of law. Hyde v. State, 666 So. 2d 445, 1995 Miss. LEXIS 639 (Miss. 1995).

Section 11-37-101 was redrafted by the legislature after it was found to be unconstitutional in Wyatt v. Cole (S.D. Miss. 1989) 710 F. Supp. 180, and the statute now meets minimum due process requirements. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

A circuit judge erred in deciding not to subject a creditor to liability for injurious violation of a debtor’s constitutional right to due process when the creditor seized the debtor’s mobile home and furnishings in compliance with §11-37-101 simply because the creditor acted pursuant to a presumptively valid (albeit unconstitutional) statute. An evidentiary hearing should have been held, and the creditor’s claim of good faith reliance on a presumptively valid statute should have been considered in light of not only the sincerity in its belief that it was acting properly, but the reasonableness of its actions under the circumstances. A fact finder conceivably could have concluded that the creditor’s “surprise” seizure of the debtor’s mobile home and its contents was, under the circumstances, unreasonable and compensable, where the record indicated no explanation for the necessity of an immediate seizure. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

Replevin proceedings are governed by statute (§§11-37-101 et seq.), supplemented only by so much of Mississippi Rules of Civil Procedure as are not inconsistent with statute. Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

Since agreed judgment in replevin action was entered by consent, the fixing of the indebtedness was appropriate; however, absent clear agreement between parties, there can be no transfer of title from the debtor to the creditor. In re Fred's Dollar Store, Inc., 44 B.R. 491, 1984 Bankr. LEXIS 4573 (Bankr. N.D. Miss. 1984).

A default judgment in a replevin action would be set aside where the value of each separate article, as required by statute, was not given in the declaration or in the final judgment, and where the location of the hearing on the writ of inquiry was contrary to the order entered on the minutes of the court. Birdsong v. Trans-American Van Service, Inc., 369 So. 2d 751, 1979 Miss. LEXIS 1968 (Miss. 1979).

2. Applicability.

Bond requirement of Miss. Code Ann. §11-37-101 did not apply because a loan servicer commenced its action under Miss. Code Ann. §11-37-131 and did not seek immediate possession of the borrowers’ recreational vehicle. Thus, the circuit court was under no statutory requirement to set a bond amount or require the loan servicer to post bond when it issued its third final judgment awarding the loan servicer possession of the vehicle. Lacoste v. Sys. & Servs. Techs., 126 So.3d 111, 2013 Miss. App. LEXIS 760 (Miss. Ct. App. 2013).

RESEARCH REFERENCES

ALR.

Sufficiency of proof in replevin of defendant’s possession at time of commencement of action. 2 A.L.R.2d 1043.

Remedy of replevin where agent, employed to purchase personal property, buys it for himself. 20 A.L.R.2d 1140.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants. 93 A.L.R.2d 358.

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property. 97 A.L.R.2d 896.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail instalment sales contract. 45 A.L.R.3d 1233.

Modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property. 18 A.L.R. Fed. 223.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 1, 5 et seq.

Initiating pleadings, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 11 et seq.

Answers and other responsive pleadings, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 231 et seq.

21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 271 et seq. (prejudgment seizure or repossession).

Law Reviews.

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

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-37-103. Judge may determine value of bond.

Should the judge to whom such pleadings are presented determine that the property in question is not properly valued, then he may, in his order, require a bond in an amount double the value of the property in question, as determined by such judge.

HISTORY: Laws, 1975, ch. 508, § 2, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-105. Form of plaintiff’s replevin bond.

The plaintiff’s bond in replevin shall be in the following form, to-wit:

“Be it known, that we, , the principal and plaintiff, and and , sureties, agree and bind ourselves to pay to , the defendant, the sum of $, unless the said principal and plaintiff shall prosecute to effect his replevin action against the defendant for possession of (here describe the property in detail), now to be seized and delivered to the plaintiff; and shall, without delay, return said property to the defendant, if return thereof be adjudged, and shall pay to the defendant such damages as he may sustain by the wrongful suing out of a writ of replevin, and such costs as may be awarded against the plaintiff, and save harmless the officer who seizes and delivers said property to the plaintiff herein; otherwise to be of no force and effect. WITNESS OUR SIGNATURES, this day of , 2 . The above bond is approved by me this day of , 2 . ”

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HISTORY: Laws, 1975, ch. 508, § 3, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin § 47.

§ 11-37-107. Venue.

The action of replevin may be instituted in the circuit or county court of a county or in the justice court of a county in which the defendant, or one (1) of several defendants, or property, or some of the property, may be found, and all proper process may be issued to other counties.

HISTORY: Laws, 1975, ch. 508, § 4; Laws, 1981, ch. 471, § 37; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

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).

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Venue of actions generally, see §§11-11-1 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Proper county for bringing possessory action. 60 A.L.R.2d 487.

Am. Jur.

66 Am. Jur. 2d, Replevin § 41.

§ 11-37-109. The writ.

The writ of replevin shall command the sheriff, or other lawful officer, to immediately seize and take possession of the property described in the writ and deliver it to the plaintiff after two (2) days, unless bonded by the defendant, and summon the defendant to appear before the court shown in the writ, in termtime or in vacation, and to answer to the action of the plaintiff.

HISTORY: Laws, 1975, ch. 508, § 5, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 48 et seq.

§ 11-37-111. Form of the writ.

The writ of replevin shall be in the following form, to-wit:

“State of Mississippi County of To the sheriff of any lawful officer of County: We command you to immediately seize and take into your possession (here describe the property as shown in the declaration) alleged by , the plaintiff, to be wrongfully detained by , the defendant, and to deliver said property to the plaintiff unless bonded by the defendant; and to summon the said defendant to appear before the court of County, Mississippi, at o’clock .M., on the day of , 2 , to answer the suit of the plaintiff for the wrongful detention of said property, and have then and there this writ. WITNESS MY HAND, this day of , 2 . ”

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HISTORY: Laws, 1975, ch. 508, § 6, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-113. How writ may be executed.

The writ may be executed by seizing the property described therein and summoning the defendant as in other civil actions, with a copy of the declaration and exhibits attached thereto to be attached to said writ, so as to fully inform the defendant as to the claim being made against him.

HISTORY: Laws, 1975, ch. 508, § 7, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 63 et seq.

§ 11-37-115. Property restored to defendant on bond.

If the defendant shall, within two (2) days from the seizure of the property, enter into bond, with sufficient sureties, to be approved by the officer or the court, payable to the plaintiff, in double the value of the property, conditioned that it shall be forthcoming to satisfy the judgment of the court, the property shall be restored to him pending final judgment.

HISTORY: Laws, 1975, ch. 508, § 8, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 50.

§ 11-37-117. Form of return of officer.

The officer’s return on such writ may be in the following form, to-wit:

“Executed the within writ, by taking possession of (here describe the property described in the writ which has been seized by the officer) found in the possession of the defendant, and by summoning the defendant (naming him) according to the command of said writ, and I have delivered him a true copy of the writ, declaration and exhibits (or otherwise, as the case may be). The plaintiff (or defendant) having entered into bond, conditioned according to law, I delivered said property to the plaintiff (or defendant) and now return said writ. This day of , 2 . Sheriff”

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HISTORY: Laws, 1975, ch. 508, § 9, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-119. New bond may be required of plaintiff.

If the defendant in a replevin suit shall at any time deem any bond taken to be insufficient, such defendant may, upon filing a motion in the court where the suit is pending, obtain a hearing to determine the sufficiency of such bond. The court shall, after hearing the evidence upon such motion determine the sufficiency or insufficiency of the bond. If the bond given by the plaintiff be adjudged insufficient, the plaintiff shall be required to give a new and sufficient bond, or restore the property to the defendant within the time limited by the court; and, in default thereof, the defendant shall be entitled to proceed and enter judgment as in case the plaintiff had nonsuited or otherwise made default.

HISTORY: Laws, 1975, ch. 508, § 10, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

jdufl

1. In general.

jdufl

It is not necessary to take exception to the sufficiency of a replevin bond as a prerequisite to causing the sheriff to be liable thereon for his lack of reasonable care in determining the sufficiency of the sureties. McKenzie v. Curet, 313 So. 2d 396, 1975 Miss. LEXIS 1672 (Miss. 1975).

§ 11-37-121. When property not taken, plaintiff may elect to recover damages.

If the return of the officer on the writ shows a failure to take the goods and chattels, but the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property, and damages for the taking or detention of the property, as if he had thus commenced his action, and the plaintiff and his sureties shall, upon motion, be discharged on their bond.

HISTORY: Laws, 1975, ch. 508, § 11, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

ALR.

Interest on value of property where property itself cannot be recovered. 36 A.L.R.2d 404.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 66 et seq.

§ 11-37-123. Duplicate, alias, and pluries writs or process, and publication.

The plaintiff shall be entitled to duplicate writs or process to other counties, and alias and pluries writs or process to take the property or to summon the defendant, as in other actions. When property shall be taken under the writ, but the defendant cannot be found, the defendant shall be notified by publication, as provided in case of attachment under like circumstances, as provided in Section 11-33-37, Mississippi Code of 1972, except that said cause may be triable five (5) days after completion of publication.

HISTORY: Laws, 1975, ch. 508, § 12, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin § 48.

§ 11-37-125. Trial of replevin actions.

All replevin actions, whether followed by writ of replevin as herein provided or by summons, as hereinafter provided, shall be triable in termtime or in vacation, and the court or judge having jurisdiction shall proceed at such hearing to a final determination of the rights of the parties to possession, provided at least five (5) days process has been had upon the defendant.

HISTORY: Laws, 1975, ch. 508, § 13, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-127. Judgment for plaintiff.

If, upon a trial, the judgment shall be for the plaintiff, he shall retain possession of the property delivered to him under the writ of replevin, or if said property has not been found, then the plaintiff shall have a judgment for its value as determined by such hearing, or the value of the plaintiff’s interest therein. Upon the entry of a judgment for the plaintiff in such replevin action, the plaintiff and the sureties on his bond shall be fully and finally discharged and said bond cancelled. If the defendant shall have bonded the property after seizure and the judgment shall be for the plaintiff, then such judgment shall be that the defendant shall immediately deliver up said property to the plaintiff, with the defendant and the sureties on his bond to be liable to the plaintiff for any damage to or depreciation in the value of such property from the date of its surrender to the defendant under his bond until the date of its surrender by the defendant in obedience to the judgment of the court, in addition to any other damage the plaintiff may have sustained by reason of the wrongful taking or detention of such property by the defendant, all as determined upon writ of inquiry; or that the plaintiff recover from the defendant and his sureties the value of said property at the date of its return to the defendant under bond.

HISTORY: Laws, 1975, ch. 508, § 14, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Judgment for value.

1. In general.

The trial court in a replevin action erred in submitting the combined issues of possession and damages for decision by the jury at the same time; if either party to such an action seeks damages, they must be sought after judgment on the issue of possession on a writ of inquiry, and not by way of counterclaim or recoupment filed with the answer. Finance America Private Brands, Inc. v. Durbin, 370 So. 2d 1356, 1979 Miss. LEXIS 2047 (Miss. 1979).

2. Judgment for value.

In a case seeking replevin and contractual damages, there was uncontroverted testimony that none of a drug company’s collateral remained within the debtor’s possession or control; therefore, it was not error to order the debtor to pay the value of the property that could not be discovered and returned. A corporate representative testified that he looked into the debtor’s closed store and observed that the shelves were almost empty. Cooley v. J.M. Smith Corp., 205 So.3d 1167, 2016 Miss. App. LEXIS 402 (Miss. Ct. App. 2016).

RESEARCH REFERENCES

ALR.

Credit for upkeep or other expense in computing damages for use or detention of property in replevin. 7 A.L.R.2d 933.

Recovery of damages in replevin for usable value of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like. 33 A.L.R.2d 774.

Interest on damages for period before judgment for injury to or detention, loss or destruction of, property. 36 A.L.R.2d 337.

Allowance of loss of profits from deprivation of use of detained property. 48 A.L.R.2d 1053.

Recovery of attorney’s fees as damages by successful litigant in replevin or detinue action. 60 A.L.R.2d 945.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 64 et seq.

Verdict for plaintiff, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Form 531.

Law Reviews.

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

§ 11-37-129. Judgment for defendant; default; writ of inquiry.

If the judgment be for the defendant, the plaintiff and the sureties on the plaintiff’s bond shall restore to the defendant the property, if to be had, or pay to him the value thereof and any damages for the wrongful suing out of the writ, as assessed upon writ of inquiry. If the defendant shall have made bond for such property, he and his sureties shall be fully discharged and he may recover any damages from the plaintiff and his sureties for the wrongful suing out of said writ. In case the plaintiff make default in prosecuting the replevin action, or be nonsuited, after seizure under writ of replevin, the defendant may have a writ of inquiry to assess the value of the property, or the damages sustained by the wrongful suing out of the writ, or both, as the case may be; and like judgment shall be rendered upon the finding as upon an issue found for him.

HISTORY: Laws, 1975, ch. 508, § 15, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

1. In general.

In an action by a person whose agent pledged equipment as security for a bank overdraft seeking to replevy a truck and trailer from the possession of a person who had obtained possession of the equipment by paying off a lien held by the bank, the trial court improperly granted a monetary judgment against plaintiff for the amount of defendant’s lien, where the trial court made no finding as to who was entitled to possession of the property, and replevin is a possessory action only. Ferris v. Hawkins, 418 So. 2d 811, 1982 Miss. LEXIS 2117 (Miss. 1982).

The trial court in a replevin action erred in submitting the combined issues of possession and damages for decision by the jury at the same time; if either party to such an action seeks damages, they must be sought after judgment on the issue of possession on a writ of inquiry, and not by way of counterclaim or recoupment filed with the answer. Finance America Private Brands, Inc. v. Durbin, 370 So. 2d 1356, 1979 Miss. LEXIS 2047 (Miss. 1979).

2. Jurisdiction.

Trial court lacked subject matter jurisdiction to enter a writ of inquiry under Miss. Code Ann. §11-37-129 where: (1) the replevin action was filed under Miss. Code Ann. §11-37-131 since the property was not pre-seized; (2) §11-37-131 did not provide for a writ of inquiry; and (3) jurisdiction ended when the replevin action ended; (4) neither party appealed the grant of defendant’s motion to set aside the replevin, which was effectively a Miss. R. Civ. P. 60(b)(4) motion; and (5) the procedures for the replevin were under Miss. Code Ann. §§11-37-141 and 11-37-143, which did not provide for a writ of inquiry. Magee v. Covington County Bank, 119 So.3d 1053, 2012 Miss. App. LEXIS 591 (Miss. Ct. App. 2012), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 408 (Miss. 2013).

RESEARCH REFERENCES

ALR.

Interest on damages for period before judgment for injury to or detention, loss or destruction of, property. 36 A.L.R.2d 337.

Recovery of attorney’s fees as damages by successful litigant in replevin or detinue action. 60 A.L.R.2d 945.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 64 et seq.

Verdict for defendant, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Form 532.

Law Reviews.

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

§ 11-37-131. How replevin commenced—immediate seizure of property not sought.

If any person, his agent or attorney, shall desire to institute an action of replevin without the necessity of posting bond, and without requesting the immediate seizure of the property in question, he shall file a declaration under oath setting forth those matters shown in subparagraphs (a) through (e) of Section 11-37-101 and shall present such pleadings to a judge of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice of the peace or other duly elected judge, and such judge shall issue a fiat directing the clerk of such court, or a deputy clerk, to issue a summons to the defendant, to appear before a court or judge having jurisdiction, as determined by the value of the property as alleged in the declaration, and as outlined in Section 11-37-101, with said process being returnable in termtime or in vacation, upon at least five (5) days’ notice, summoning the defendant to appear for a final hearing to determine the rights of the parties as to possession, and upon such final hearing the court shall enter judgment accordingly.

HISTORY: Laws, 1975, ch. 508, § 16, eff from and after passage (approved April 8, 1975).

Cross References —

Alternative procedure where immediate seizure of property is sought, see §§11-37-101 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Jurisdiction.

2. Due process.

3. Possession properly granted to lender.

4. Bond.

5. Judgment for value.

6. Damages award.

1. Jurisdiction.

Trial court lacked subject matter jurisdiction to enter a writ of inquiry under Miss. Code Ann. §11-37-129 where: (1) the replevin action was filed under Miss. Code Ann. §11-37-131 since the property was not pre-seized; (2) §11-37-131 did not provide for a writ of inquiry; and (3) jurisdiction ended when the replevin action ended; (4) neither party appealed the grant of defendant’s motion to set aside the replevin, which was effectively a Miss. R. Civ. P. 60(b)(4) motion; and (5) the procedures for the replevin were under Miss. Code Ann. §§11-37-141 and 11-37-143, which did not provide for a writ of inquiry. Magee v. Covington County Bank, 119 So.3d 1053, 2012 Miss. App. LEXIS 591 (Miss. Ct. App. 2012), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 408 (Miss. 2013).

2. Due process.

Circuit court erred in awarding a business owner damages for the storage of an antique truck when the business owner never filed a responsive pleading or a separate cause of action giving the truck owner notice in the truck driver’s replevin action that the business owner was seeking storage fees because the due process rights of the truck owner were violated. Stratton v. McKey, 204 So.3d 1245, 2016 Miss. LEXIS 508 (Miss. 2016).

3. Possession properly granted to lender.

Because the parties were allowed to argue their claims to certain equipment, and because the buyer did not dispute that the lender had a valid prior, perfected security interest in the equipment by virtue of a properly filed financing statement, the lender was entitled to possession of the equipment under Miss. Code Ann. §11-37-131. Hammond v. Caterpillar Fin. Servs. Corp., 66 So.3d 700, 2011 Miss. App. LEXIS 347 (Miss. Ct. App. 2011).

4. Bond.

Bond requirement of Miss. Code Ann. §11-37-101 did not apply because a loan servicer commenced its action under Miss. Code Ann. §11-37-131 and did not seek immediate possession of the borrowers’ recreational vehicle. Thus, the circuit court was under no statutory requirement to set a bond amount or require the loan servicer to post bond when it issued its third final judgment awarding the loan servicer possession of the vehicle. Lacoste v. Sys. & Servs. Techs., 126 So.3d 111, 2013 Miss. App. LEXIS 760 (Miss. Ct. App. 2013).

5. Judgment for value.

In a case seeking replevin and contractual damages, there was uncontroverted testimony that none of a drug company’s collateral remained within the debtor’s possession or control; therefore, it was not error to order the debtor to pay the value of the property that could not be discovered and returned. A corporate representative testified that he looked into the debtor’s closed store and observed that the shelves were almost empty. Cooley v. J.M. Smith Corp., 205 So.3d 1167, 2016 Miss. App. LEXIS 402 (Miss. Ct. App. 2016).

6. Damages award.

Because damages resulting from a replevin were not authorized by statute and because the owner of an antique truck failed to put forward any evidence of damages at trial, damages could not be awarded in the case sub judice. Stratton v. McKey, 204 So.3d 1245, 2016 Miss. LEXIS 508 (Miss. 2016).

RESEARCH REFERENCES

ALR.

Sufficiency of proof in replevin of defendant’s possession at time of commencement of action. 2 A.L.R.2d 1043.

Conversion as precluded by resort to replevin. 3 A.L.R.2d 230.

Remedy of replevin where agent, employed to purchase personal property, buys it for himself. 20 A.L.R.2d 1140.

Action by landowner for recovery by possession of cut timber after revocation of license. 26 A.L.R.2d 1197.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants. 93 A.L.R.2d 358.

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property. 97 A.L.R.2d 896.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail instalment sales contract. 45 A.L.R.3d 1233.

Modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property. 18 A.L.R. Fed. 223.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 1, 5 et seq.

Initiating pleadings, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 11 et seq.

Answers and other responsive pleadings, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 231 et seq.

§ 11-37-133. Form of summons.

The summons may be in the following form, to-wit:

“The State of Mississippi To the sheriff of County, Greetings: We command you hereby that you summons , (put full address) defendant, if to be found in your county, so that he be and appear before the court, to be holden in and for the County of , at the courthouse thereof in the City of , Mississippi, on the day of , 2 , at o’clock .M., to answer the plaintiff’s declaration in replevin filed herein, a copy of which is attached hereto, and for a final hearing to determine the rights of the parties herein as to the possession of the property as described in the declaration in replevin. Declaration filed when summons issued. ISSUED THIS day of , 2 . Clerk”

Click to view

HISTORY: Laws, 1975, ch. 508, § 17, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-135. How summons shall be executed.

The summons in replevin shall be executed by summoning the defendant as in other civil cases, a copy of the declaration and exhibits being attached to said summons, directing the defendant to appear before the court shown in said summons, to answer the plaintiff’s declaration under oath. The officer serving said process shall determine whether or not the defendant is then in possession of the property described in the declaration and shall so indicate on his return.

HISTORY: Laws, 1975, ch. 508, § 18, eff from and after passage (approved April 8, 1975).

Cross References —

Summons and their execution generally, see §§13-3-5 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

OPINIONS OF THE ATTORNEY GENERAL

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.

§ 11-37-137. Contempt of defendant for concealing or disposing of property.

If the defendant be found to be in possession of the property in question at the time of the service of process upon him, and if he shall conceal said property or dispose of the same, or fail to have the same within the jurisdiction of the court for such final judgment as may be rendered by the court in said replevin action, upon the return day of process herein, he shall be subject to penalties of contempt, upon motion of the plaintiff or order of the court.

HISTORY: Laws, 1975, ch. 508, § 19, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-139. Resettlement of action for trial on a future date.

Where process in any replevin action is by way of a summons in replevin, said cause shall be triable on its merits upon at least five (5) days process upon the defendant, and said cause shall be triable in termtime or in vacation and at such place as the court may direct. In the event it shall appear at the return day that there is secondary service of process, or less than five (5) days process upon the defendant, the court may enter an order resetting said matter for trial on a future date, so as to insure that said cause will not be tried on its merits except upon a resetting on secondary process or except upon at least five (5) days process upon the defendant. In the event of such order resetting said cause for such later date, it shall not be necessary that further process be served upon the defendant.

HISTORY: Laws, 1975, ch. 508, § 20, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

OPINIONS OF THE ATTORNEY GENERAL

When the judge hears the case, pursuant to the terms of this section, the judgment would be for possession of the property, or if the property has not been found, then the judgment shall be for its value or the value of the plaintiff’s interest therein. Mullen, Dec. 10, 2004, A.G. Op. 04-0585.

§ 11-37-141. Judgment for plaintiff where property not previously seized.

Upon the trial of any replevin action in which the property has not previously been seized under writ of replevin, if the judgment be for the plaintiff, the court shall enter judgment awarding to the plaintiff the immediate possession of the property and such judgment shall order and direct the sheriff or other lawful officer to immediately seize the property in question, without further process upon the defendant, and deliver said property to the plaintiff, a certified copy of the final judgment rendered in such case being furnished to the sheriff as evidence of his authority to seize such property and deliver it to the plaintiff.

HISTORY: Laws, 1975, ch. 508, § 21, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Jurisdiction.

2. Damages award.

1. Jurisdiction.

Trial court lacked subject matter jurisdiction to enter a writ of inquiry under Miss. Code Ann. §11-37-129 where: (1) the replevin action was filed under Miss. Code Ann. §11-37-131 since the property was not pre-seized; (2) §11-37-131 did not provide for a writ of inquiry; and (3) jurisdiction ended when the replevin action ended; (4) neither party appealed the grant of defendant’s motion to set aside the replevin, which was effectively a Miss. R. Civ. P. 60(b)(4) motion; and (5) the procedures for the replevin were under Miss. Code Ann. §§11-37-141 and 11-37-143, which did not provide for a writ of inquiry. Magee v. Covington County Bank, 119 So.3d 1053, 2012 Miss. App. LEXIS 591 (Miss. Ct. App. 2012), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 408 (Miss. 2013).

2. Damages award.

Because damages resulting from a replevin were not authorized by statute and because the owner of an antique truck failed to put forward any evidence of damages at trial, damages could not be awarded in the case sub judice. Stratton v. McKey, 204 So.3d 1245, 2016 Miss. LEXIS 508 (Miss. 2016).

OPINIONS OF THE ATTORNEY GENERAL

A constable may enter a dwelling to seize property as commanded by a writ of replevin, but such entering must be done without a breach of the peace; further, obtaining entry into a rented house or apartment by means of the landlord in order to seize replevied property is a proper action to be taken by the constable. Sherrell, March 10, 1999, A.G. Op. #99-0035.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 64 et seq.

Judgment for plaintiff where property not previously delivered, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Form 536.

§ 11-37-143. Judgment for defendant where property not previously seized.

In any replevin action in which the property has not been previously seized by writ of replevin, if the defendant be successful in such action, the judgment of the court shall be that the declaration of the plaintiff be dismissed and court costs assessed against the plaintiff.

HISTORY: Laws, 1975, ch. 508, § 22, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Jurisdiction.

2. Damages award.

1. Jurisdiction.

Trial court lacked subject matter jurisdiction to enter a writ of inquiry under Miss. Code Ann. §11-37-129 where: (1) the replevin action was filed under Miss. Code Ann. §11-37-131 since the property was not pre-seized; (2) §11-37-131 did not provide for a writ of inquiry; and (3) jurisdiction ended when the replevin action ended; (4) neither party appealed the grant of defendant’s motion to set aside the replevin, which was effectively a Miss. R. Civ. P. 60(b)(4) motion; and (5) the procedures for the replevin were under Miss. Code Ann. §§11-37-141 and 11-37-143, which did not provide for a writ of inquiry. Magee v. Covington County Bank, 119 So.3d 1053, 2012 Miss. App. LEXIS 591 (Miss. Ct. App. 2012), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 408 (Miss. 2013).

2. Damages award.

Because damages resulting from a replevin were not authorized by statute and because the owner of an antique truck failed to put forward any evidence of damages at trial, damages could not be awarded in the case sub judice. Stratton v. McKey, 204 So.3d 1245, 2016 Miss. LEXIS 508 (Miss. 2016).

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 64 et seq.

Judgment for defendant, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 537 et seq.

§ 11-37-145. Replevin actions to be treated as preference cases.

All replevin actions shall be treated by the court as preference cases and shall be heard on the merits at the earliest possible date, with the view of reaching an early determination as to the rights of the parties to the property in question.

HISTORY: Laws, 1975, ch. 508, § 23, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Summary judgment.

Summary judgment was an appropriate means to determine the possessory rights to a recreational vehicle because the judge’s use of Miss. R. Civ. P. 56 supplemented – and was not inconsistent with – the requirement under Miss. Code Ann. §11-37-145 that replevins be resolved as early as possible. Lacoste v. Sys. & Servs. Techs., 126 So.3d 111, 2013 Miss. App. LEXIS 760 (Miss. Ct. App. 2013).

§ 11-37-147. Jury trial.

All replevin actions shall be tried by the court without a jury, unless one (1) of the parties thereto shall file a written request for a jury trial.

HISTORY: Laws, 1975, ch. 508, § 24, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-149. Claim of property by third person.

If a third person, not a party to the action of replevin, shall claim to be the owner or entitled to the possession of goods or chattels involved in a replevin action, he shall not be allowed to institute another action of replevin while the former is pending, but may intervene in said action and present his claim under oath.

HISTORY: Laws, 1975, ch. 508, § 25, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Mississippi Rule Civil Procedure 24 is supplementary to statute (§11-37-149) governing intervention in replevin action, rather than inconsistent with statute. Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

Party asserting nonpossessory interest in property which is subject of replevin action may assert such interest within ancillary jurisdiction of circuit court, so long as there is common nucleus of operative fact between party’s claim and original complaint in replevin, and such party may intervene in circuit court replevin action even though claim is of equitable origins. Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Replevin § 44.

Intervention, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 251 et seq.

§ 11-37-151. Claim of property by third person—issue, trial and judgment.

After the trial of the action of replevin, an issue shall be made between the successful party and the claimant as to the validity of his claim, and a trial shall be had to determine the right of possession as between them and judgment entered accordingly.

HISTORY: Laws, 1975, ch. 508, § 26, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-153. Laws applicable in case of death.

All the provisions of law in reference to the death of either party, and the revival of the cause in personal actions, and the death of any of the obligors in a bond given in a replevin action, and the proceedings thereon before and after judgment, shall apply in like case to the action of replevin, and to a claim of property in such action.

HISTORY: Laws, 1975, ch. 508, § 27, eff from and after passage (approved April 8, 1975).

Cross References —

Death of party to action generally, see §11-7-29.

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. In general.

Nonpossessory equitable claim of intervenor in replevin action survives death of intervenor, whose executor is permitted to revive claim by intervention. Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

§ 11-37-155. Replevin not maintainable in certain cases.

The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin.

HISTORY: Laws, 1975, ch. 508, § 28, eff from and after passage (approved April 8, 1975).

Cross References —

How replevin is commenced, see §§11-37-101,11-37-131.

Replevy of exempt property levied upon, see §85-3-9.

Seizure of person or property, see Miss. R. Civ. P. 64.

§ 11-37-157. Replevin cumulative and additional to all other actions.

The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.

HISTORY: Laws, 1975, ch. 508, § 29, eff from and after passage (approved April 8, 1975).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

JUDICIAL DECISIONS

1. Attorney’s fees.

Because a loan servicer’s right to attorney’s fees under the terms of a loan agreement was in addition to its right to possess the borrowers’ recreational vehicle, the loan servicer did not have to prove it was entitled to punitive damages to be awarded attorney’s fees. Lacoste v. Sys. & Servs. Techs., 126 So.3d 111, 2013 Miss. App. LEXIS 760 (Miss. Ct. App. 2013).

Chapter 38. Claim and Delivery

§ 11-38-1. Commencement of action.

Any person with an enforceable lien on any personal property, or right to the immediate possession thereof, or who asserts that such property has been wrongfully taken or detained may bring an action for claim and delivery by filing a complaint in writing, under oath, describing the property, setting forth his claim, share or interest therein, attaching an itemized account, if required, and giving the names of any other persons who have a similar or other claims or interests in such property. Thereupon the clerk or justice shall issue a writ directed to the proper officer to value the property, or so much thereof as may be necessary to satisfy the plaintiff’s demand and cost, and to summon the persons named in the affidavit to appear in court, at the time fixed, to answer the complaint.

HISTORY: Laws, 1973, ch. 400, § 1, eff from and after passage (approved March 28, 1973).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

Filing and service requirements for pleadings and motions in Circuit Courts, see Miss. U.R.C.C.C. 2.06.

JUDICIAL DECISIONS

1. In general.

The declaration in an action for claim and delivery brought by a bank against an automobile dealer and an automobile manufacturer credit corporation complied with the requirements of this section, even though there was no allegation that the value of the property in question exceeded $200. Chrysler Credit Corp. v. Bank of Wiggins, 358 So. 2d 714, 1978 Miss. LEXIS 2554 (Miss. 1978).

RESEARCH REFERENCES

ALR.

Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative. 42 A.L.R.2d 418.

Allowance, in replevin action, of loss of profits from deprivation of use of detained property. 48 A.L.R.2d 1053.

Proper county for bringing replevin, or similar possessory action. 60 A.L.R.2d 487.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants. 93 A.L.R.2d 358.

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property. 97 A.L.R.2d 896.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract. 45 A.L.R.3d 1233.

Construction and Application of Parratt-Hudson Doctrine, Providing That Where Deprivation of Property Interest Is Occasioned by Random and Unauthorized Conduct of State Officials, Procedural Due Process Inquiry Is Limited to Issue of Adequacy of Postdeprivation Remedies Provided by State. 89 A.L.R.6th 1.

Am. Jur.

66 Am. Jur. 2d, Replevin §§ 3, 36 et seq.

CJS.

77 C.J.S., Replevin §§ 1, 38–41 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-38-3. Venue; issuance and return of process; jurisdiction of court; right to jury trial.

The action for claim and delivery may be instituted in the circuit or county court of a county, or the justice court of a county, in which the defendant, or one (1) of several of them, resides or where the property, or some of it, may be found. Proper process shall issue to other counties and shall be made returnable to the first term of the court held after the issuance of said writ unless it shall be issued more than ten (10) days before the said term of court, when it may be returnable to the judge of the court at the usual place of holding the court at a day to be named, not more than ten (10) days or less than five (5) days after the date of the issuance of the writ, or before the judge in vacation, and the cause will be triable, provided the defendant has been served with process at least five (5) days before the return day of the writ. The judge shall have jurisdiction to hear the cause, or any matter pertaining thereto, in termtime or vacation, at such time and place as he may direct, and to enter such orders and judgment thereon as to adjust the rights of the parties in the subject matter; and all such cases shall be tried by the judge without the intervention of a jury unless a jury is demanded in the complaint or answer.

HISTORY: Laws, 1973, ch. 400, § 2; Laws, 1981, ch. 471, § 38; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

Laws, 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, 1992).

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-38-5. Preliminary hearing.

The clerk or justice issuing the writ may also, by a separate summons, require the parties to appear before him for a preliminary hearing to determine the rights of the parties to immediate possession of the property involved, at a time and place fixed in the summons, but shall allow the defendant not less than two (2) days’ notice. At the preliminary hearing the clerk or justice shall determine whether the temporary possession of the property is to be delivered to the plaintiff, retained by the defendant, or whether the proper officer shall seize and hold the property until a hearing on the merits to determine what bond, if any, should be required. An appropriate writ shall thereupon be issued for the enforcement of the temporary order. Upon written demand of either party the clerk, when the action is before a clerk of the court, shall refer the action for such preliminary hearing before any justice of the county or the judge of the court from which the process was issued. If temporary possession be granted to the plaintiff, the bond shall be for double the value of the property, and if temporary possession be granted to the defendant and bond be required, it shall be for not less than double the value of the plaintiff’s interest therein.

Preliminary hearings may be determined by the justice or judge designated without regard to jurisdictional amount.

HISTORY: Laws, 1973, ch. 400, §§ 3, 5, eff from and after passage (approved March 28, 1973).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-38-7. Answer; judgment.

The defendant, or any interested person, may contest the demand of the plaintiff on or before the return day of the writ by filing an answer in writing, under oath, of his claim or defense, itemizing his account, if any, and the case shall be then at issue between the parties, and shall be tried as other cases in the court. The judgment or judgments of the court shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit, and costs may be adjudged accordingly.

HISTORY: Laws, 1973, ch. 400, § 4, eff from and after passage (approved March 28, 1973).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the last sentence. The word “cost” was changed to “costs.” The Joint Committee ratified the correction at its December 3, 1996 meeting.

Cross References —

Filing and service requirements for pleadings and motions in circuit courts, see URCCC 4.02.

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

§ 11-38-9. Claim and delivery cumulative and additional to other actions.

The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.

HISTORY: Laws, 1973, ch. 400, § 6, eff from and after passage (approved March 28, 1973).

Cross References —

Seizure of person or property, see Miss. R. Civ. P. 64.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Provisional and Final Remedies and Special Proceedings – Rules 64-71. 52 Miss. L. J. 183, March 1982.

Chapter 39. Quo Warranto

In General

§ 11-39-1. To what cases applicable.

The remedy by information in the nature of a quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz.:

First.— Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office.

Second.— Whenever any public officer has done or suffered to be done, or has omitted to do any act, the doing or omission of which works a forfeiture of office.

Third.— Whenever any two or more persons shall act as a corporation, or assume so to do without being legally incorporated.

Fourth.— Whenever any corporation shall be guilty of a misuser or abuse of its powers, or ceases to discharge the duty for which it was created.

Fifth.— Whenever any corporation willfully exercises powers not conferred by law.

Sixth.— Whenever any corporation fails to exercise powers conferred by law and essential to its corporate existence, or implied in its duty to the public.

Seventh.— Whenever any corporation shall be guilty of doing or neglecting to do any act the doing or neglecting of which is made by law a cause of forfeiture of franchise.

Eighth.— Whenever any corporation shall willfully and persistently violate the law made for regulating such corporations, or the criminal law; but acts done in good faith before adjudication of the constitutionality of a doubtful statute shall not be cause of forfeiture.

Ninth.— Whenever it is sought to have the right of any corporation, not created by the laws of this state, to do business in this state forfeited because of its persistent refusal to comply with the laws thereof.

Tenth.— Whenever any nonresident alien or corporation shall acquire or hold lands contrary to law.

HISTORY: Codes, 1857, ch. 35, art. 12; 1871, § 1490; 1880, §§ 2585, 2586, 2587; 1892, § 3520; 1906, § 4017; Hemingway’s 1917, § 3012; 1930, § 3053; 1942, § 1120.

Cross References —

Subject-matter jurisdiction of circuit courts generally, see §9-7-81.

Quo warranto proceedings against municipal marshal or chief of police, see §21-21-1.

Vacancy in office due to removal or default of officer, see §§25-5-1,25-1-59.

Filling vacancy in office resulting from failure of official to qualify for office, see §25-1-7.

Proceedings against motor vehicle manufacturers for cancellation of dealer agency contract, see §63-17-137.

Proceedings against fraternal society, see §83-29-45.

Proceedings to forfeit charter of club violating liquor laws, see §99-27-25.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. To determine right to office.

2. To corporation or persons assuming to act as such.

3. Miscellaneous.

1. To determine right to office.

In public quo warranto action, respondent has burden of proving his entitlement to public office against challenge from state by either district attorney or attorney general. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Private quo warranto action is required to be brought on behalf of state by person claiming entitlement to office which puts burden on plaintiff to establish entitlement to office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Relator in private writ of quo warranto must stand on strength of his entitlement to office as opposed to weaknesses of person alleged as not properly holding office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

In comparison to public writ, person need not have private petition for writ of quo warranto filed by attorney general or district attorney so long as it is filed in name of state on relation of another who is seeking their right to office against person who has held over in office when petitioner has been elected to said office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Voter bringing quo warranto action had incorrectly filed private rather than public action and did not have standing to file public action to contest candidate’s qualifications for chancellor’s office, as publication had to be filed by attorney general or district attorney. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Even if private action, rather than public action, for quo warranto had been proper to challenge qualifications of candidate for chancellor’s office, voter did not have standing to bring private action as voter did not claim entitlement to chancellor position. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

As elected chancellor had not yet taken office and was not in possession of or exercising any function of office of chancellor at time of private action of quo warranto challenging his qualifications, claim was not ripe for private action of quo warranto. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

A chancery clerk was entitled to bring an original action in the circuit court, in the nature of quo warranto, under §§11-39-1 and11-39-5 as supplanted by the rules of civil procedure, for reinstatement by the county board of supervisors to the posts of clerk of the board of supervisors and county auditor. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

A private person may bring a petition, on information in quo warranto, to try the right of an office in the name of the State of Mississippi, and such is the proper remedy to contest the qualifications of a successful candidate to hold the office. State ex rel. Muirhead v. State Board of Election Comm'rs, 259 So. 2d 698, 1972 Miss. LEXIS 1543 (Miss.), cert. denied, 409 U.S. 851, 93 S. Ct. 64, 34 L. Ed. 2d 94, 1972 U.S. LEXIS 1351 (U.S. 1972).

Generally, a bill for injunction will not lie to try the right and title to a public office, but the proper remedy is by quo warranto. Lacey v. Noblin, 238 Miss. 329, 118 So. 2d 336, 1960 Miss. LEXIS 409 (Miss. 1960).

One of the functions of a writ of quo warranto at common law and under the statute is to serve as an appropriate and adequate means for determination of the right or title to a public office, and to oust an incumbent who was unlawfully holding the office. State ex rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764, 1957 Miss. LEXIS 537 (Miss.), aff'd, 231 Miss. 529, 96 So. 2d 828, 1957 Miss. LEXIS 538 (Miss. 1957).

Although the writ of quo warranto is not a writ of right, but issues in the sound discretion of the court, where the judgment of the circuit court was not placed upon the discretionary exercise of power in denial of the writ but was based upon the erroneous premise that § 9, chapter 10 of the Laws of 1953 (§ 6271-09) was unconstitutional, and the defendant, who was serving as County Superintendent of Public Education did not comply with the requirements of the statute, the Supreme Court, upon determining that the statute was constitutional, was under the duty to enforce the act and issue the writ of quo warranto, finding that the defendant had been exercising the functions of office without authority and removing him therefrom. State ex rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764, 1957 Miss. LEXIS 537 (Miss.), aff'd, 231 Miss. 529, 96 So. 2d 828, 1957 Miss. LEXIS 538 (Miss. 1957).

In a quo warranto proceeding filed by the Attorney General of the state against defendant, who was serving as County Superintendent of Public Education, on the ground that he was unlawfully holding and exercising that public office, and for the purpose of trying his right to that office, since the defendant was impelled to show a right de jure and not one merely de facto, it was incumbent upon him to show a good legal title and not merely a colorable one, and he must rely wholly on the strength of his own title. State ex rel. Patterson v. Land, 231 Miss. 529, 95 So. 2d 764, 1957 Miss. LEXIS 537 (Miss.), aff'd, 231 Miss. 529, 96 So. 2d 828, 1957 Miss. LEXIS 538 (Miss. 1957).

A petition in the nature of quo warranto to oust one from office as trustee of a consolidated school which alleged that relator had been duly elected as trustee of the school and showing that there was no vacancy in the trusteeship such as would indicate the necessity of the superintendent of education to appoint the respondent as continuing trustee, stated a good cause of action. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So. 2d 339, 1952 Miss. LEXIS 598 (Miss. 1952).

Petition in the nature of quo warranto to oust one from office as trustee of consolidated school was properly filed in the name of the state on relation of another and not in the name of attorney general or a district attorney. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So. 2d 339, 1952 Miss. LEXIS 598 (Miss. 1952).

In quo warranto proceedings to try title to public office where State is relator, instead of another individual claimant of the office, the burden is on respondent to prove his right or title to the office, hence there was no error by a trial court in refusing an instruction which sought to place burden of proof on relator. Jones v. State, 207 Miss. 208, 42 So. 2d 123, 1949 Miss. LEXIS 330 (Miss. 1949).

Town marshal held properly removed from office as result of quo warranto proceedings, where he failed to show resident in town as required by §§ 241, 250 of Constitution, and Code of 1942, § 3762. Jones v. State, 207 Miss. 208, 42 So. 2d 123, 1949 Miss. LEXIS 330 (Miss. 1949).

In order to maintain a proceeding in the nature of quo warranto to try the right to a public office, it must appear that the respondent is in actual possession and use of the office in question; it is not sufficient for the information to show that the respondent lay some claim to the office without usurping the functions thereof. O'Neal v. Fairley, 190 Miss. 650, 200 So. 722, 1941 Miss. LEXIS 70 (Miss. 1941).

One legally elected to fill a vacancy in a public office, making the required bond and taking the oath of office required, is not entitled to a judgment of the court awarding him the possession of the office unless there is someone holding the office not entitled so to do. O'Neal v. Fairley, 190 Miss. 650, 200 So. 722, 1941 Miss. LEXIS 70 (Miss. 1941).

Neither of two candidates claiming to have been elected to a public office, which is vacant, has a right to resort to quo warranto. O'Neal v. Fairley, 190 Miss. 650, 200 So. 722, 1941 Miss. LEXIS 70 (Miss. 1941).

One claiming to be entitled to the office of a member of a county board of supervisors because of the failure of another elected to the office to make bond and take the oath of office and by reason of having received the next highest number of votes at such election could not maintain a proceeding in the nature of quo warranto to establish his right to possession thereof where the respondent was not in possession of such office and the office was vacant. O'Neal v. Fairley, 190 Miss. 650, 200 So. 722, 1941 Miss. LEXIS 70 (Miss. 1941).

A proper remedy to contest the qualifications to hold office of one nominated in a party primary is by quo warranto after the general election. McKenzie v. Thompson, 186 Miss. 524, 191 So. 487, 1939 Miss. LEXIS 260 (Miss. 1939).

One who contested the election of another to a municipal office because of his illegal nomination in the primary, who made no claim to have been elected himself, was not entitled to contest the election, the proper remedy in such case being quo warranto, since the question is a public and not a private one. Omar v. West, 186 Miss. 136, 188 So. 917, 1939 Miss. LEXIS 196 (Miss. 1939).

An action contesting an election of a candidate for a municipal office by one who himself made no claim to have been elected to a certain office and who was not entitled under Code 1930, § 6258 to bring an action, his remedy being by quo warranto, could not be treated as a quo warranto proceeding because it was not in the name of the state as required. Omar v. West, 186 Miss. 136, 188 So. 917, 1939 Miss. LEXIS 196 (Miss. 1939).

Proceeding to try right to office of councilman instituted in name of State on relation of claimant is in the nature of a private action, in which claimant must succeed on strength of his own claim. State ex rel. Parks v. Tucei, 175 Miss. 218, 166 So. 370, 1936 Miss. LEXIS 20 (Miss. 1936).

State could not debar city officers from exercising jurisdiction over annexed territory where annexation proceedings were void, but city, as constituted, had functioned nearly seven years and annexed municipality had been abolished by statute. State ex rel. Jordan v. Mayor & Comm'rs of Greenwood, 157 Miss. 875, 129 So. 682 (Miss. 1930).

Quo warranto is proper to test the validity of the formation of a county under a legislative act providing therefor. State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1, 1919 Miss. LEXIS 13 (Miss. 1919).

A person unlawfully acting as clerk of the board of trustees of the penitentiary exercises the functions of a public officer, and may be proceeded against by quo warranto. Yerger v. State, 91 Miss. 802, 45 So. 849, 1907 Miss. LEXIS 196 (Miss. 1907).

A trusteeship of a public school is an office within this provision [Code 1942, § 1120]. Ellis v. Greaves, 82 Miss. 36, 34 So. 81, 1903 Miss. LEXIS 135 (Miss. 1903).

A quo warranto proceeding must fail if it appears that the relator at the time of his election and institution of the suit not being registered was not a qualified elector of the state, and therefore under § 250 Const 1890, not eligible to office. Andrews v. State, 69 Miss. 740, 13 So. 853, 1892 Miss. LEXIS 50 (Miss. 1892).

Where an officer fails to qualify under newly imposed conditions, quo warranto is an appropriate remedy to remove him. Hyde v. State, 52 Miss. 665, 1876 Miss. LEXIS 272 (Miss. 1876).

2. To corporation or persons assuming to act as such.

If trustees could not operate railroad, state’s remedy was by quo warranto not anti-trust law proceedings. State ex rel. Knox v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598, 1928 Miss. LEXIS 101 (Miss. 1928).

Quo warranto is the proper remedy where a corporation practiced fraud in obtaining its charter and its acts under the charter have been all in violation of law. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

That a corporation has so conducted its affairs as to subject it to a quo warranto by the state does not prevent its recovery in an action of unlawful detainer against a private person. Home Mut. Bldg. & Loan Ass'n v. Leonard, 77 Miss. 39, 25 So. 351, 1899 Miss. LEXIS 47 (Miss. 1899).

Where a charter is repealed, and the performance of its function is made criminal, it is no objection to a prosecution that the franchise was not forfeited by a quo warranto proceeding. Moore v. State, 48 Miss. 147, 1873 Miss. LEXIS 43 (Miss. 1873), writ of error dismissed, 88 U.S. 636, 22 L. Ed. 653, 1874 U.S. LEXIS 1397 (U.S. 1875).

3. Miscellaneous.

Quo warranto writ under statute, being form of action, was interred with adoption of Mississippi Rules of Civil Procedure. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Unless and until the state courts of Mississippi have been given the opportunity to pass upon a quo warranto action brought by the State of Mississippi against a non-profit, non-share corporation seeking forfeiture of its corporate franchises and privileges on the ground that it has exceeded its corporate powers, the action was prematurely sought to be removed to the federal courts. Williams v. Tri-County Community Center, 323 F. Supp. 286, 1971 U.S. Dist. LEXIS 14935 (S.D. Miss.), aff'd, 452 F.2d 221, 1971 U.S. App. LEXIS 6768 (5th Cir. Miss. 1971).

In proceeding to remove district supervisor, court dismissing case improperly taxed costs against individuals, named as relators, having no interest other than that common to all citizens. State v. Henderson, 166 Miss. 530, 146 So. 456, 1933 Miss. LEXIS 347 (Miss. 1933).

Where a demurrer to the petition is sustained and an appeal is taken, the Supreme Court cannot consider matters resting on facts not appearing in the petition. State ex rel. Baker v. Nichols, 106 Miss. 419, 63 So. 1025, 1913 Miss. LEXIS 148 (Miss. 1913).

RESEARCH REFERENCES

ALR.

Right of private person not claiming office to maintain quo warranto proceedings to test title to or existence of office. 51 A.L.R.2d 1306.

Am. Jur.

65 Am. Jur. 2d, Quo Warranto §§ 12- 40.

CJS.

74 C.J.S., Quo Warranto §§ 8-30.

§ 11-39-3. Proceedings.

The proceedings in the cases set forth in Section 11-39-1 shall be by complaint, in the name of the state, by the Attorney General or a district attorney, on his own motion or on relation of another, and, in a case to try the right to an office, on the relation of the claimant thereof. The complaint shall be filed in the circuit court of the county of the residence of the defendant; or, in the case of an officer, where he acts as such; or, in case of a corporation or pretended corporation, where its principal office or place of business may be or where it may transact any business and has an agent; or, in case of an alien or corporation acquiring or holding land contrary to law, where any of the land is situated.

HISTORY: Codes, 1857, ch. 35, art. 12; 1871 §§ 1490, 1491; 1880, §§ 2585, 2587; 1892, § 3521; 1906, § 4018; Hemingway’s 1917, § 3013; 1930, § 3054; 1942, § 1121; Laws, 1991, ch. 573, § 73, eff from and after July 1, 1991.

Cross References —

Suits by the attorney general generally, see §7-5-37.

Subject-matter of circuit courts generally, see §9-7-81.

Duty of district attorney to appear in court and prosecute generally, see §25-31-11.

Prohibition against nonresident alien purchasing public land, see §29-1-75.

Acquisition and holding of land by aliens generally, see §89-1-23.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Who may institute action.

3. Jurisdiction and venue.

1. In general.

In public quo warranto action, respondent has burden of proving his entitlement to public office against challenge from state by either district attorney or attorney general. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Private quo warranto action is required to be brought on behalf of state by person claiming entitlement to office which puts burden on plaintiff to establish entitlement to office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Relator in private writ of quo warranto must stand on strength of his entitlement to office as opposed to weaknesses of person alleged as not properly holding office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

The words in this section [Code 1942, § 1121] “on relation of another” refer to a person at whose instance and for whose benefit the proceeding is instituted. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So. 2d 339, 1952 Miss. LEXIS 598 (Miss. 1952).

A petition in the nature of quo warranto to oust one from office as trustee of a consolidated school which alleged that relator had been duly elected as trustee of the school and showing that there was no vacancy in the trusteeship such as would indicate the necessity of the superintendent of education to appoint the respondent as continuing trustee, stated a good cause of action. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So. 2d 339, 1952 Miss. LEXIS 598 (Miss. 1952).

This section [Code 1942, § 1121] should be given that construction, if possible, which will preserve the essentials of harmony and consistency in the judicial system. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

Proceeding to try right to office of councilman instituted in name of State on relation of claimant is in the nature of a private action, in which claimant must succeed on strength of his own claim. State ex rel. Parks v. Tucei, 175 Miss. 218, 166 So. 370, 1936 Miss. LEXIS 20 (Miss. 1936).

Words “on relation of another,” in quo warranto statute, refer to person at whose instance and for whose benefit proceeding is instituted. State v. Henderson, 166 Miss. 530, 146 So. 456, 1933 Miss. LEXIS 347 (Miss. 1933).

Demurrer to an information in quo warranto admits all the allegations contained in the information, and the appellate court should assume that the allegations are true as stated. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

2. Who may institute action.

In comparison to public writ, person need not have private petition for writ of quo warranto filed by attorney general or district attorney so long as it is filed in name of state on relation of another who is seeking their right to office against person who has held over in office when petitioner has been elected to said office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Voter bringing quo warranto action had incorrectly filed private rather than public action and did not have standing to file public action to contest candidate’s qualifications for chancellor’s office, as publication had to be filed by attorney general or district attorney. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Even if private action, rather than public action, for quo warranto had been proper to challenge qualifications of candidate for chancellor’s office, voter did not have standing to bring private action as voter did not claim entitlement to chancellor position. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Where relators have no claim to the office, the right to which they seek to attack in a quo warranto proceeding, a demurrer was properly sustained to their petition. State ex rel. Powe v. Pittman, 253 Miss. 844, 179 So. 2d 563, 1965 Miss. LEXIS 1060 (Miss. 1965).

Petition in the nature of quo warranto to oust one from office as trustee of consolidated school was properly filed in the name of the state on relation of another and not in the name of attorney general or a district attorney. State ex rel. Funches v. Keys, 215 Miss. 562, 61 So. 2d 339, 1952 Miss. LEXIS 598 (Miss. 1952).

Attorney general alone has right to institute suit for quo warranto to forfeit corporate charter or corporate right where relief prayed for is to forfeit such charter or right throughout the state; the district attorney may bring such a suit only when the corporation is authorized by its charter to exercise its functions only in certain county or judicial district of the state, or where its charter powers are such that, because of the essential manner of the exercise thereof, or because of exclusive physical conditions or situations or the like, those powers cannot be exercised except in a certain territorial location in the state, so that its ouster in that territory could not be of any real interest to other sections of the state. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

Incapacity of district attorney to institute quo warranto on behalf of the state in matters of state-wide interest is a defect which goes to the very power and jurisdiction of the court to act at all in the premises, and therefore it is immaterial whether the defect is specifically challenged by demurrer. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

It is not within the province of the trial court to limit the scope of its judgment in quo warranto proceedings on account of the fact that the state had purported to appear through one legal representative (district attorney) rather than another (attorney general). Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

State is not bound by appearance in court on its behalf by an unauthorized official to any greater extent than an individual would be bound by the act of a person assuming to sue on his behalf without authority. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

Quo warranto proceedings brought by an unauthorized officer on behalf of the state should be dismissed without prejudice to right of the state to sue by its proper officer. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

Ousting of a theater corporation, authorized to do business throughout the state, from the exercise of its rights and franchises anywhere in the state is a subject of state-wide interest, for which quo warranto may be brought only by the attorney general and not by a district attorney, although the particular ground of ouster is the violation of the Sunday law by theaters operated by the corporation within the district, and this is true even though this section [Code 1942, § 1121] expressly provides that quo warranto may be “by the attorney general or a district attorney,” since this is not to be so construed as to disrupt the natural division of authority between the attorney general and district attorneys, under which the former takes care of state matters and the latter take care of local matters, especially in view of the confusion which would necessarily follow from leaving matters of state interest in the hands of the various district attorneys. Kennington-Saenger Theatres, Inc. v. State, 196 Miss. 841, 18 So. 2d 483, 1944 Miss. LEXIS 263 (Miss. 1944).

Under this section [Code 1942, § 1121] a municipality which created the office may be the relator in a quo warranto proceeding instituted by the district attorney to oust an intruder who has usurped the office of policeman. Beverly v. Hattiesburg, 83 Miss. 621, 36 So. 74, 1903 Miss. LEXIS 81 (Miss. 1903).

3. Jurisdiction and venue.

Circuit Court had jurisdiction to decide suit challenging powers being exercised by Lieutenant Governor where there was no exclusive vesting in another court of jurisdiction to hear and decide such claim, and due to nature of relief sought, i.e., that Lieutenant Governor’s exercise of certain powers in Senate be declared unconstitutional and he be debarred from exercising such authority, such case was akin to those historically within circuit court jurisdiction, to-wit: quo warranto proceedings. Dye v. State, 507 So. 2d 332, 1987 Miss. LEXIS 2507 (Miss. 1987).

Equity court held without jurisdiction to try, by injunction, right to office of county supervisor. Yates v. Summers, 177 Miss. 252, 170 So. 827, 1936 Miss. LEXIS 259 (Miss. 1936).

Suit to forfeit charter of domestic corporation must be brought in county of its domicil or in which it has a fixed place of business. Most Worshipful Cuney Grand Lodge A. F. & A. M. v. Knox, 144 Miss. 628, 109 So. 866, 1926 Miss. LEXIS 373 (Miss. 1926).

Where the board of election commissioners in a county having two judicial districts are in the habit of meeting at the courthouse in the second district for the performance of their duties, quo warranto proceedings may be instituted in that district, though the defendant resides in the other judicial district of the county. State ex rel. Fontaine v. Anderson, 133 Miss. 533, 97 So. 884, 1923 Miss. LEXIS 162 (Miss. 1923).

The information in quo warranto against an alleged officer should be filed in the circuit court of the county where the duties of the office are performed. State ex rel. Fontaine v. Anderson, 133 Miss. 533, 97 So. 884, 1923 Miss. LEXIS 162 (Miss. 1923).

A quo warranto proceeding instituted by the state on the relation of the attorney-general, under § 4 of the act of March 12, 1900 (Laws 1900 p. 125), to forfeit the charter of a corporation belonging to a trust, is a civil and not a criminal proceeding, and the venue of such a suit is regulated by this section [Code 1942, § 1121]. State ex rel. Attorney Gen. v. Mississippi Cotton Oil Co., 79 Miss. 203, 30 So. 609, 1901 Miss. LEXIS 38 (Miss. 1901).

OPINIONS OF THE ATTORNEY GENERAL

The Attorney General, the District Attorney, and the person who claims the right to a particular office are authorized to bring quo warranto against the incumbent. Ops. Atty. Gen. 1931-33, p. 51.

When there are two contestants for an office, and one of them is in possession of such office, then the other contestant can, and should, institute the necessary legal proceedings to try his rights to the office. Ops. Atty. Gen. 1931-33, p. 51.

When it is alleged that a county or county district officer is ineligible, disqualified, or for any reason is holding said office unlawfully, then it is the paramount duty of the District Attorney of the district where the person is located to make the necessary investigation and if in his judgment the facts warrant that proceedings be instituted to oust such officer, then such District Attorney should proceed to do so. Ops. Atty. Gen. 1931-33, p. 51.

In the event such proceeding is taken and an appeal is prosecuted by either party to the Supreme Court, then the Attorney General would represent the State in the Supreme Court. Ops. Atty. Gen. 1931-33, p. 51.

In the event such allegation is made against a state or state district officer, then it is the paramount duty of the Attorney General to make the necessary investigation and institute the proper proceedings. Ops. Atty. Gen. 1931-33, p. 51.

The law authorizes the Attorney General, as well as the District Attorneys to proceed in all cases. However, it was not contemplated by the Legislature that the Attorney General would institute the proceedings against county or county district officers. This is especially true when ouster is sought on some technical ineligibility to the person in office. Ops. Atty. Gen. 1931-33, p. 51.

It is in exceptional cases only that the Attorney General will interfere in reference to county and county district officers. Ops. Atty. Gen. 1931-33, p. 51.

RESEARCH REFERENCES

ALR.

Propriety of default judgment against defendant, without introduction of evidence, in quo warranto proceeding. 92 A.L.R.2d 1121.

Am. Jur.

65 Am. Jur. 2d, Quo Warranto §§ 42, 59- 67.

Complaints and informations, 21 Am. Jur. Pl & Pr Forms (Rev), Quo Warranto, Forms 41 et seq.

Complaints and information, 16 Am. Jur. Pl & Pr Forms, Quo Warranto, Forms 16:1011-16:1031.

CJS.

74 C.J.S., Quo Warranto §§ 47–57.

Law Reviews.

1987 Mississippi Supreme Court Review, Civil Procedure. 57 Miss. L. J. 443, August, 1987.

§ 11-39-5. Trial of right to office.

In case the proceedings be on the relation of a person claiming to be entitled to an office, the ground of his claim shall be stated by proper averment, and judgment shall be rendered according to the rights of the respective claimants; and, if it be in favor of the relator, he shall be entitled to the office on qualifying according to law, and may recover of the defendant in an action all damages that may have accrued in consequence of withholding the office from him.

HISTORY: Codes, 1857, ch. 35, art. 18; 1871, § 1497; 1880, § 2587; 1892, § 3522; 1906, § 4019; Hemingway’s 1917, § 3014; 1930, § 3055; 1942, § 1122.

Cross References —

Trial of right to office in vacation, see §§11-39-51 to11-39-61.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Who may institute action.

1. In general.

In public quo warranto action, respondent has burden of proving his entitlement to public office against challenge from state by either district attorney or attorney general. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Private quo warranto action is required to be brought on behalf of state by person claiming entitlement to office which puts burden on plaintiff to establish entitlement to office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Relator in private writ of quo warranto must stand on strength of his entitlement to office as opposed to weaknesses of person alleged as not properly holding office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

2. Who may institute action.

In comparison to public writ, person need not have private petition for writ of quo warranto filed by attorney general or district attorney so long as it is filed in name of state on relation of another who is seeking their right to office against person who has held over in office when petitioner has been elected to said office. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Voter bringing quo warranto action had incorrectly filed private rather than public action and did not have standing to file public action to contest candidate’s qualifications for chancellor’s office, as publication had to be filed by attorney general or district attorney. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

Even if private action, rather than public action, for quo warranto had been proper to challenge qualifications of candidate for chancellor’s office, voter did not have standing to bring private action as voter did not claim entitlement to chancellor position. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

As elected chancellor had not yet taken office and was not in possession of or exercising any function of office of chancellor at time of private action of quo warranto challenging his qualifications, claim was not ripe for private action of quo warranto. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1995 Miss. LEXIS 610 (Miss. 1995), cert. denied, 519 U.S. 812, 117 S. Ct. 59, 136 L. Ed. 2d 22, 1996 U.S. LEXIS 4695 (U.S. 1996).

A chancery clerk was entitled to bring an original action in the circuit court, in the nature of quo warranto, under §§11-39-1 and11-39-5 as supplanted by the rules of civil procedure, for reinstatement by the county board of supervisors to the posts of clerk of the board of supervisors and county auditor. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

In quo warranto proceedings to try title to public office where State is relator, instead of another individual claimant of the office, the burden is on respondent to prove his right or title to the office, hence there was no error by a trial court in refusing an instruction which sought to place burden of proof on relator in the instant case. Jones v. State, 207 Miss. 208, 42 So. 2d 123, 1949 Miss. LEXIS 330 (Miss. 1949).

Town marshal held properly removed from office as result of quo warranto proceedings, where he failed to show residence in town as required by §§ 241, 250 of Constitution, and Code of 1942 § 3762. Jones v. State, 207 Miss. 208, 42 So. 2d 123, 1949 Miss. LEXIS 330 (Miss. 1949).

Equity court held without jurisdiction to try, by injunction, right to office of county supervisor. Yates v. Summers, 177 Miss. 252, 170 So. 827, 1936 Miss. LEXIS 259 (Miss. 1936).

Appointment of the defendants to the offices of aldermen and members of the board of school trustees by the governor, and the performance of the duties, constituted them “de facto officers,” and the only remedy for complainants claiming title to the offices is by quo warranto. Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829, 1917 Miss. LEXIS 296 (Miss. 1917).

In an action of quo warranto to decide which of two persons received a majority of the legal votes cast at election after plaintiff’s evidence is closed, defendant is entitled to amend his pleadings and offer evidence to show that votes were cast for the relator by persons who were not qualified electors. Kelly v. State, 79 Miss. 168, 30 So. 49, 1901 Miss. LEXIS 31 (Miss. 1901) but see Wade v. Williams, 517 So. 2d 573, 1987 Miss. LEXIS 2971 (Miss. 1987).

A quo warranto proceeding cannot be heard by a special judge under appointment by the governor, as Code 1892, § 922, providing for the appointment of special judges, does not apply. Kelly v. State, 79 Miss. 168, 30 So. 49, 1901 Miss. LEXIS 31 (Miss. 1901) but see Wade v. Williams, 517 So. 2d 573, 1987 Miss. LEXIS 2971 (Miss. 1987).

An information which shows that the election officers had declared the defendant elected and that he had qualified and entered upon his duties, but questions his right to the office because of irregularities or illegalities in the election is demurrable if it does not aver the facts; the statement of the pleaders’ conclusion is not sufficient. Conner v. McLaurin, 77 Miss. 373, 27 So. 594, 1899 Miss. LEXIS 79 (Miss. 1899).

It is unnecessary for a relator to have taken oath and executed bond or have offered to do so on or before the beginning of the term to maintain by quo warranto a contest for a municipal office with one usurping same. State ex rel. Bourgeois v. Laizer, 77 Miss. 146, 25 So. 153, 1899 Miss. LEXIS 44 (Miss. 1899).

RESEARCH REFERENCES

CJS.

74 C.J.S., Quo Warranto §§ 77, 78.

§ 11-39-7. Form of complaint against corporation.

For convenience and certainty, the complaint, if against a corporation, shall set out briefly the causes of forfeiture. It may be in the form following, to-wit:

“State of Mississippi, Circuit Court, term, County of . A.D. , “The State of Mississippi, by A B, district attorney for the judicial district of the state, of his own accord (or on the relation of C D, as the case may be) gives the court here to understand and be informed that the corporation of has forfeited all right to exercise any of the franchises and privileges granted it in this, to-wit (set out the causes of forfeiture). “Wherefore, the State of Mississippi, by said district attorney, prays judgment of forfeiture and ouster against said corporation.”

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And in all other cases the complaint shall be in form substantially the same as near as may be, conforming to the state of case.

HISTORY: Codes, 1857, ch. 35, art. 15; 1871, § 1494; 1880, § 2588; 1892, § 3523; 1906, § 4020; Hemingway’s 1917, § 3015; 1930, § 3056; 1942, § 1123; Laws, 1991, ch. 573, § 74, eff from and after July 1, 1991.

§ 11-39-9. Form of complaint against individuals.

If the complaint be filed against persons exercising corporate franchises without authority, the following language may be used after the word “informed,” to-wit:

“That certain persons (naming them) have for months last past used, and still do use, the following liberties and franchises without lawful authority, to-wit: (set out the franchises), which said franchises and privileges the said have usurped, and still do usurp. “Wherefore the State of Mississippi, by said district attorney, prays that they may be debarred of such rights.”

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HISTORY: Codes, 1857, ch. 35, art. 17; 1871, § 1494; 1880, § 2590; 1892, § 3524; 1906, § 4021; Hemingway’s 1917, § 3016; 1930, § 3057; 1942, § 1124; Laws, 1991, ch. 573, § 75, eff from and after July 1, 1991.

§ 11-39-11. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 35, art. 16; 1871, § 1496; 1880, § 2589; 1892, § 3525; 1906, § 4022; Hemingway’s 1917, § 3017; 1930, § 3058; 1942, § 1125]

Editor’s Notes —

Former §11-39-11 related to defense to information in nature of quo warranto – how made.

§ 11-39-13. Summons.

After the complaint has been filed, summons shall be issued as required by the Mississippi Rules of Civil Procedure.

HISTORY: Codes 1857, ch. 35, art. 13; 1871, § 1495; 1880, § 2591; 1892, § 3526; 1906, § 4023; Hemingway’s 1917, § 3018; 1930, § 3059; 1942, § 1126; Laws, 1991, ch. 573, § 76, eff from and after July 1, 1991.

Cross References —

Duty of sheriff to keep process docket, see §19-25-59.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quo Warranto § 43.

21 Am. Jur. Pl & Pr Forms (Rev), Quo Warranto, Form 30 (summons in quo warranto).

CJS.

74 C.J.S., Quo Warranto § 35.

§ 11-39-15. Court or judge may make certain orders.

During the pendency of the action, the court, or judge in vacation, may make all proper orders for preventing damage or injury to the plaintiff before the case is decided.

HISTORY: Codes, 1880, § 2598; 1892, § 3527; 1906, § 4024; Hemingway’s 1917, § 3019; 1930, § 3060; 1942, § 1127.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-39-17. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 35, art. 14; 1871, § 1496; 1880, § 2592; 1892, § 3528; 1906, § 4025; Hemingway’s 1917, § 3020; 1930, § 3061; 1942, § 1128]

Editor’s Notes —

Former §11-39-17 related to nature of proceedings and trial term.

§ 11-39-19. Judgments against defendants.

If it be found on the trial of an information that a corporation has forfeited its charter, judgment of ouster from the franchises shall be given, and that it be dissolved; and if it be found, on trial, that persons claiming to exercise a franchise are not entitled to the same, the judgment shall be that such persons be debarred and excluded from the use of the franchise; and in both cases the state shall recover costs. If judgment be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from office and debarred therefrom, and shall pay costs.

The court shall order the defendant to deliver over all records, books, and papers in his custody or under his control, belonging to the office, and may make and enforce all orders proper to carry its judgment into effect.

HISTORY: Codes, 1857, ch. 35, art. 19; 1871, §§ 1499, 1502; 1880, §§ 2593, 2594; 1892, § 3529; 1906, § 4026; Hemingway’s 1917, § 3021; 1930, § 3062; 1942, § 1129.

Cross References —

Cases in which appeals are returnable at any time, see §11-3-3.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In proceeding to remove district supervisor, court dismissing case improperly taxed costs against individuals, named as relators, having no interest other than that common to all citizens. State v. Henderson, 166 Miss. 530, 146 So. 456, 1933 Miss. LEXIS 347 (Miss. 1933).

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quo Warranto §§ 96 et seq.

Judgment of ouster, 21 Am. Jur. Pl & Pr Forms (Rev), Quo Warranto, Forms 81-83, 97, 115.

CJS.

74 C.J.S., Quo Warranto §§ 76–79.

§ 11-39-21. Disobedience punishable.

Any person who refuses or knowingly neglects to obey any order of the court made as herein provided, shall be guilty of contempt of court, and shall be fined in any sum not exceeding Five Thousand Dollars ($5,000.00), and imprisoned in the county jail until he comply with the order. He shall be further liable for damages resulting to any person on account of his refusal to obey.

HISTORY: Codes, 1871, § 1515; 1880, § 2595; 1892, § 3530; 1906, § 4027; Hemingway’s 1917, § 3022; 1930, § 3063; 1942, § 1130.

Cross References —

Punishment of contempt by courts generally, see §9-1-17.

§ 11-39-23. Private person relator, liable for costs.

When an information is upon the relation of a private individual, it shall be so stated in the petition and proceedings, and such individual shall be responsible for costs as plaintiffs are responsible in other cases.

HISTORY: Codes, 1871, § 1504; 1880, § 2596; 1892, § 3531; 1906, § 4028; Hemingway’s 1917, § 3023; 1930, § 3064; 1942, § 1131.

Cross References —

Costs for trial in vacation, see §11-39-61.

Liability of person for costs of suit brought in his name, see §11-53-15.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quo Warranto § 102.

CJS.

74 C.J.S., Quo Warranto § 80.

§ 11-39-25. Trustees to be appointed.

When judgment of forfeiture and ouster shall be rendered against any corporation or against any person pretending to exercise corporate franchises, the debtors to such corporation, or other body, shall not be thereby released from their debts and liabilities, and it shall be the duty of the judge of the court rendering the judgment to appoint one or more trustees to take charge of the books, evidences of debts, assets and property of such corporation or body pretending to exercise corporate franchises. Such trustees are invested with full power and authority to sue, in their own name, for and to collect all debts due to such corporation or body pretending to exercise corporate franchise, and to be sued in any court upon permission to sue being first obtained from the chancery court, and, generally, to maintain any action, or to revive or have revived against them any suit or judgment for or against such corporation or other body. The proceeds of debts collected and property sold shall be applied by such trustees to the payment of the costs in the quo warranto proceedings and in payment of debts, under the direction of the court.

HISTORY: Codes, 1857, ch. 35, art. 22; 1871, §§ 1506, 1609; 1880, § 2599; 1892, § 3532; 1906, § 4029; Hemingway’s 1917, § 3024; 1930, § 3065; 1942, § 1132; Laws, 1908, ch. 193.

Cross References —

Rules for appointment of receivers, see §§11-5-151 et seq.

Proceedings against trusts and combines for forfeiture of charter and right to do business, see §§75-21-19 to75-21-23.

RESEARCH REFERENCES

Am. Jur.

65 Am. Jur. 2d, Quo Warranto § 99.

§ 11-39-27. Bond of trustees.

Before they enter upon the discharge of their duties, the trustees shall execute bond in such sum as may be prescribed, and with such sureties as may be approved by the judge, payable to the state, and conditioned for the faithful discharge of their duties as trustees, which bond may be put in suit for a breach thereof; and the amount collected thereon shall constitute a fund for the benefit of creditors or stockholders, as other funds of the corporation.

HISTORY: Codes, 1857, ch. 35, art. 23; 1871, §§ 1507, 1508; 1880, § 2600; 1892, § 3533; 1906, § 4030; Hemingway’s 1917, § 3025; 1930, § 3066; 1942, § 1133.

RESEARCH REFERENCES

Am. Jur.

Bond or undertaking, 21 Am. Jur. Pl & Pr Forms (Rev), Replevin, Forms 13, 14.

§ 11-39-29. Property surrendered to trustees.

It shall be the duty of all persons having possession of property or evidences of debt belonging to any corporation, or persons pretending to exercise corporate franchises, against which or whom judgment of forfeiture shall have been rendered, to surrender and deliver the same to the trustees so appointed, and, in case of failure to do so, such trustees may maintain an action therefor.

HISTORY: Codes, 1857, ch. 35, art. 24; 1871, § 1510; 1880, § 2601; 1892, § 3534; 1906, § 4031; Hemingway’s 1917, § 3026; 1930, § 3067; 1942, § 1134.

§ 11-39-31. Trustees to return inventory to chancery court—vacancies filled—new bonds.

It shall be the duty of the trustees, at the next succeeding term after their appointment of the chancery court of the county in which the quo warranto judgment was rendered, or at such other time as may be designated by the said chancery court or the chancellor, to return, under oath, to the court, a full and complete inventory of all evidences of debt, and property of every description, which may have come to their possession or knowledge as the property of the corporation or body pretending to exercise corporate franchises, and from time to time such further inventories as may be necessary, in case additional assets or property shall be discovered, which inventories shall be recorded by the clerk. The chancery court, or the chancellor in vacation, may remove trustees and appoint new ones, or fill vacancies in case of death or resignation, and may require new bonds of the trustees.

HISTORY: Codes, 1857, ch. 35, art. 25; 1871, § 1512; 1880, § 2602; 1892, § 3535; 1906, § 4032; Hemingway’s 1917, § 3027; 1930, § 3068; 1942, § 1135.

§ 11-39-33. Sales of property—proceedings—trustees not to buy.

The chancery court, or chancellor in vacation, shall order the sale of the property, real and personal, in the same manner and on the same terms as such property of intestate decedents is sold, and like proceedings shall be had as far as applicable. It shall not be lawful for a trustee to become the purchaser of any property sold by him in that capacity, or by his cotrustees, either directly or indirectly, or to act as agent of any other person in making such purchase; and all purchases in violation of this provision shall be void.

HISTORY: Codes, 1857, ch. 35, arts. 22, 26; 1871, § 1511; 1880, §§ 2599, 2603; 1892, § 3536; 1906, § 4033; Hemingway’s 1917, § 3028; 1930, § 3069; 1942, § 1136.

Cross References —

Salability of property and franchise of corporation under judgment, see §79-1-13.

§ 11-39-35. Claims presented and audited—notice.

The chancery court shall require all claims against the funds in the hands of the trustees to be presented and audited in such manner as shall be deemed proper. Notice shall be given to all persons holding such claims to present and have them audited in the same manner as such notice is given in the administration of estates, and all claims not presented and audited within twelve months after the last publication shall be forever barred.

HISTORY: Codes, 1880, § 2606; 1892, § 3537; 1906, § 4034; Hemingway’s 1917, § 3029; 1930, § 3070; 1942, § 1137.

Cross References —

Probate of claims, see §91-7-149.

Procedural rules applicable to civil actions, see Mississippi Rules of Civil Procedure, Rule 1 et seq.

§ 11-39-37. Compensation of trustees and others.

The compensation of trustees and others shall be determined by the court, and allowed out of the effects of the corporation or other body, under the control of the court.

HISTORY: Codes, 1880, § 2605; 1892, § 3538; 1906, § 4035; Hemingway’s 1917, § 3030; 1930, § 3071; 1942, § 1138.

§ 11-39-39. Report of trustees, and order of paying debts.

It shall be the duty of the trustees, at the first term of the court after the time for presenting claims has elapsed, to make a full and complete report of all claims presented and audited, at which time exception may be taken to the allowance or rejection of any claim, and, if sustained, the report may be corrected. When the report is settled, and the amount of indebtedness ascertained, the court shall order the trustees to pay the debts in the following order:

The compensation to the trustees and others, and expenses incurred in settling the affairs of the corporation, including the payment of the costs in the quo warranto proceedings in the circuit court, and the costs in the chancery court.

Debts due to the state or any county, city, town, or village for taxes or otherwise.

A ratable distribution amongst creditors who have proved their claims, and had them allowed.

The surplus, if any, shall be ratably distributed among the stockholders, according to their respective rights.

HISTORY: Codes, 1880, § 2606; 1892, § 3539; 1906, § 4036; Hemingway’s 1917, § 3031; 1930, § 3072; 1942, § 1139.

Trial of Right to Public Office in Vacation

§ 11-39-51. Right to public office triable in vacation.

A proceeding by quo warranto to try the right to any public office, may be tried and determined in vacation as well as in term time.

HISTORY: Codes, 1880, § 2607; 1892, § 3540; 1906, § 4037; Hemingway’s 1917, § 3032; 1930, § 3073; 1942, § 1140.

Cross References —

Trial of right to office generally, see §11-39-5.

JUDICIAL DECISIONS

1. In general.

A municipal office is a public office within the meaning of this section [Code 1942, § 1140]. Kelly v. State, 79 Miss. 168, 30 So. 49, 1901 Miss. LEXIS 31 (Miss. 1901) but see Wade v. Williams, 517 So. 2d 573, 1987 Miss. LEXIS 2971 (Miss. 1987).

§§ 11-39-53 through 11-39-57. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-39-53. [Codes, 1880, § 2608; 1892, § 3541; 1906, § 4038; Hemingway’s 1917, § 3033; 1930, § 3074; 1942, § 1141]

§11-39-55. [Codes, 1880, § 2609; 1892, § 3542; 1906, § 4039; Hemingway’s 1917, § 3034; 1930, § 3075; 1942, § 1142]

§11-39-57. [Codes, 1880, § 2610; 1892, § 3543; 1906, § 4040; Hemingway’s 1917, § 3035; 1930, § 3076; 1942, § 1143]

Editor’s Notes —

Former §11-39-53 related to how trial in vacation obtained.

Former §11-39-55 related to record of proceedings – process to enforce judgment.

Former §11-39-57 related to process for witnesses.

§ 11-39-59. Fees of officers, jurors, and witnesses.

The clerk, sheriff, jurors, and witnesses shall have the same allowance for attendance, to be taxed in the costs, as if their attendance was upon a circuit court, and shall be compellable to attend in like manner.

HISTORY: Codes, 1880, § 2611; 1892, § 3544; 1906, § 4041; Hemingway’s 1917, § 3036; 1930, § 3077; 1942, § 1144.

Cross References —

Fees for clerks of court generally, see §§25-7-9 to25-7-13.

Fees for sheriffs and tax collectors generally, see §§25-7-19,25-7-21.

Witnesses’ fees generally, see §25-7-47.

Jurors’ fees generally, see §25-7-61.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

§ 11-39-61. Costs in such cases.

The judge, before making the order for trial in vacation or afterward, may impose such terms, and make such requirements as to costs and payment thereof or security therefor, as he thinks proper, and shall tax the costs of the case as he may deem just.

HISTORY: Codes, 1871, § 1504; 1880, § 2612; 1892, § 3545; 1906, § 4042; Hemingway’s 1917, § 3037; 1930, § 3078; 1942, § 1145.

Cross References —

Costs where information is upon relation of private individual, see §11-39-61.

Liability for costs where suit is brought in name of state or person by another, see §11-53-15.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

Where a defendant by filing a crossaction or auxiliary action in the same case assumes the position of a complainant, he may be required to post security for costs. Martin v. McGraw, 249 Miss. 334, 160 So. 2d 89, 161 So. 2d 784, 1964 Miss. LEXIS 530 (Miss. 1964).

Chapter 41. Mandamus; Prohibition

§ 11-41-1. In what cases a remedy and how obtained.

On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law. All procedural aspects of this action shall be governed by the Mississippi Rules of Civil Procedure.

HISTORY: Codes, 1871, § 1517; 1880, § 2542; 1892, § 2846; 1906, § 3231; Hemingway’s 1917, § 2533; 1930, § 2348; 1942, § 1109; Laws, 1991, ch. 573, § 77, eff from and after July 1, 1991.

Cross References —

Issuance of remedial writs by judges of the supreme and circuit courts and chancellors, see §9-1-19.

Compliance with provisions as to title to sixteenth section and lien lands, see §29-3-9.

Enforcing orders of Tennessee river basin water pollution control commission, see §49-17-71.

Enforcement of rights of bondholders of bridge and park commission, see §55-7-51.

Mandamus proceedings in regard to agriculture and industry program bonds, see §§57-1-29,57-3-21,57-3-27.

Enforcement of county road sign provisions, see §§65-7-19,65-7-21.

Enforcement of payment of toll bridge revenue bonds, see §65-23-5.

Enforcement of rights of bondholders under Gulf of Mexico or Mississippi Sound project, see §65-23-109.

Compelling county supervisors to comply with tick eradication statute, see §69-15-315.

Enforcement of meat inspection law by mandamus, see §75-35-315.

Enforcement of law as to dental service corporations, see §83-43-31.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

Application to supreme court for writ of mandamus to compel trial judge to render decision, see Miss. R. App. P. 15.

Writs of mandamus and prohibition directed to a judge or judges and other extraordinary writs, see Miss. R. App. P. 21.

JUDICIAL DECISIONS

1. In general.

2. Existence of other remedy.

3. Who may petition.

4. Propriety of remedy.

5. —Discretionary matters.

6. —Moot questions.

7. —Election matters.

8. —Payment of claims.

9. —Tax matters.

10. —Bond issues.

11. —School matters.

12. —Miscellaneous cases.

13. Defenses.

14. Judgment.

15. Injunction against issuance.

16. Miscellaneous.

1. In general.

Petitions for mandamus requesting that circuit clerk and justice court clerk be directed to accept in forma pauperis filings were not properly before Supreme Court; petitions should have been filed with circuit court. Ivy v. State, 688 So. 2d 223, 1997 Miss. LEXIS 5 (Miss. 1997).

Writ of prohibition is proper procedural vehicle to vest court with jurisdiction to address and settle question of whether alleged trade secrets were proper matters for discovery. American Tobacco Co. v. Evans, 508 So. 2d 1057, 1987 Miss. LEXIS 2498 (Miss. 1987).

The writ of mandamus will not issue in every case even where there is a clear legal right, and where the circumstances make it unwise or inexpedient the court may refuse to issue the writ, especially when it is sought to enforce a private right. Chatham v. Johnson, 195 So. 2d 62, 1967 Miss. LEXIS 1425 (Miss. 1967).

Mandamus is a purely personal action. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Writ of mandamus is a discretionary writ and even in a case where an absolute legal right is shown, writ will be withheld whenever public interest would be adversely affected. Board of Sup'rs v. Mississippi State Highway Com., 207 Miss. 839, 42 So. 2d 802, 1949 Miss. LEXIS 394 (Miss. 1949).

Before a writ of mandamus may issue three essentials must exist: (1) a clear right in petitioner to relief sought, (2) a legal duty on part of defendant to do the thing which petitioner seeks to compel, and (3) there must be an absence of another adequate remedy at law. Board of Sup'rs v. Mississippi State Highway Com., 207 Miss. 839, 42 So. 2d 802, 1949 Miss. LEXIS 394 (Miss. 1949).

Mandamus is a discretionary writ. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

A writ of mandamus will not be issued whenever public interest will be adversely affected, especially where only public political rights of those for whom petition is filed are asserted. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

The cause of action must exist at date of filing of petition for mandamus. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

The writ is never granted to take effect prospectively. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

A writ of mandamus will not issue unless there has been actual default in performance of duty. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

Demand for performance of act cannot be made before time has expired wherein officer is allowed to do the act. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

Mandamus would not issue, four months in advance of time for performance of duty, to compel secretary of state to disregard, in preparation of sample ballot, designations of candidates for Congress by districts on ground redistricting act was void. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

Writ of mandamus lies only to require performance of official duty which officer has refused to discharge. Anderson v. Robins, 161 Miss. 604, 137 So. 476, 1931 Miss. LEXIS 281 (Miss. 1931).

Mandamus is an extraordinary writ, and not to be resorted to where the purpose can otherwise reasonably be accomplished. McHenry v. State, 91 Miss. 562, 44 So. 831, 1907 Miss. LEXIS 155 (Miss. 1907).

2. Existence of other remedy.

Where, following the entry of an order refusing a building permit for the construction of a building which would in all respects conform to the applicable laws, ordinances, and regulations, the city authorities failed for some 60 days to sign or file a bill of exceptions, the result was an unreasonable and unwarranted delay in the issuance of the permit, effectively depriving the applicants of a plain, speedy, adequate remedy in the ordinary course of law; and a writ of mandamus was properly granted directing the issuance of the permit. Thompson v. Mayfield, 204 So. 2d 878, 1967 Miss. LEXIS 1227 (Miss. 1967).

A bill for mandatory injunction directing board of veterinary examiners to issue a license to practice veterinary medicine, surgery and dentistry was the proper remedy to obtain review of the board’s order denying application for license, since there was no adequate remedy at law either by certiorari or mandamus. Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 67 So. 2d 378, 1953 Miss. LEXIS 550 (Miss. 1953).

Where district attorney was serving three counties, he was not precluded from maintaining mandamus proceedings on behalf of one of such counties to compel motor vehicle comptroller to pay over certain funds to county out of gasoline tax collections in excess of the share which comptroller was willing to concede. McCullen v. State, 217 Miss. 256, 63 So. 2d 856, 1953 Miss. LEXIS 429 (Miss. 1953).

Right to appeal under Code 1942, §§ 1195, 1196, from refusal of board of supervisors to levy tax for school district, is not a “speedy remedy” within meaning of this section [Code 1942, § 1109], so as to bar issuance of writ of mandamus. State ex rel. Chatham v. Bd. of Supervisors, 209 Miss. 79, 46 So. 2d 73, 1950 Miss. LEXIS 363 (Miss. 1950).

Writ of mandamus should not be issued where there is plain, adequate and speedy remedy at law. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938); State by Coleman v. Cameron, 223 Miss. 50, 77 So. 2d 716, 1955 Miss. LEXIS 351 (Miss. 1955); Grenada County School Bd. v. Provine, 224 Miss. 574, 80 So. 2d 798, 1955 Miss. LEXIS 523 (Miss. 1955).

Mandamus will not lie where there is adequate remedy by appeal. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

3. Who may petition.

Resident and an association of concerned citizens lacked standing to pursue the remedy of mandamus because they did not show that they had any interest in a county landfill under the “any-private-person-who-is-interested” provision of Miss. Code Ann. §11-41-1, separate from or in excess of that of the general population of the county. Bennett v. Bd. of Supervisors, 987 So. 2d 984, 2008 Miss. LEXIS 390 (Miss. 2008).

Trial court properly granted council members’ petition for a writ of mandamus directing a reelected mayor to resubmit department directors for approval to the council pursuant to Miss. Code Ann. §21-8-23(2) where the council members had standing to seek a writ; the council members demonstrated that, by virtue of their position as the legislative check and balance on the executive power of the mayor, they had a separate interest or an interest in excess of the general public. DuPree v. Carroll, 967 So. 2d 27, 2007 Miss. LEXIS 589 (Miss. 2007).

Appellate court affirmed the denial of the writ of mandamus sought by the citizens after the trial court dismissed their petition because the citizens clearly did not have standing to pursue a mandamus action under Miss. Code Ann. §11-41-1, because the citizens admitted that they did not suffer an injury separate and apart from that suffered by other citizens. Aldridge v. West, 929 So. 2d 298, 2006 Miss. LEXIS 266 (Miss. 2006).

Governor, suing in his capacity as Governor and Administrator of Medicaid Division to preclude attorney general from proceeding with suit, did not meet statutory requirements for seeking mandamus, which may be sought by Attorney General or district attorney. In re Fordice, 691 So. 2d 429, 1997 Miss. LEXIS 104 (Miss. 1997).

A private person did not have standing to seek a writ of mandamus under §11-41-1 where he testified that he had no interest separate from or in excess of that of the general public. Jackson County School Bd. v. Osborn, 605 So. 2d 731, 1992 Miss. LEXIS 313 (Miss. 1992).

Although the writs of mandamus and prohibition ordinarily may be sought only by the Attorney General or a district attorney, relief may be available to a private citizen if he can show “an interest separate from or in excess of that of the general public”. Fondren v. State Tax Com., 350 So. 2d 1329, 1977 Miss. LEXIS 2245 (Miss. 1977).

One state agency cannot obtain a writ of mandamus against another state agency in its own right. Board of Education v. Sigler, 208 So. 2d 890, 1968 Miss. LEXIS 1433 (Miss. 1968).

A petition for a writ of mandamus filed by a county board of education against the board of supervisors of that county to require the payment by the board of supervisors of funds earmarked for the use of the schools will be dismissed because the county board of education had no authority to compel the board of supervisors to act by issuance of a writ of mandamus. Board of Education v. Sigler, 208 So. 2d 890, 1968 Miss. LEXIS 1433 (Miss. 1968).

A taxpayer sustaining no injury other than is common to all taxpayers from a failure to back-assess and collect certain income taxes may not sue to compel the state tax commission to do so. Stietenroth v. Monaghan, 237 Miss. 305, 114 So. 2d 754, 1959 Miss. LEXIS 470 (Miss. 1959).

Where the statute provides that it shall be the duty of district attorney to appear in circuit court and prosecute for the state in his district all criminal prosecutions and civil cases in which the state or any county within his district may be interested, and where it also provides that if two or more counties are adversely interested, district attorney should not represent either, the statute is general and covers civil cases as a general class, whereas, a statute authorizing district attorney to petition for mandamus any matter affecting public interest is specific and constitutes exception to the general provision. McCullen v. State, 217 Miss. 256, 63 So. 2d 856, 1953 Miss. LEXIS 429 (Miss. 1953).

Mandamus is regulated by statute, and, in matters affecting public interest, action must be brought on petition of state by its attorney general or a district attorney. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Prerequisite to commencement of mandamus suit against commissioner of highway safety patrol to compel him to enforce laws of state applicable to transportation, possession and sale of intoxicating liquor, is petition either of attorney general or district attorney, and private citizen cannot assert that right for himself and general public. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Right to bring a mandamus action on behalf of Hancock County, to compel the state highway commission to appraise and reimburse such county for its proportionate value of a bridge, connecting Hancock and Harrison Counties, which had been taken over by the commission, was not in the attorney general exclusively, but the district attorney of the judicial district in which Hancock County is located also had such right, and could maintain the action in Hinds County. State ex rel. Cowan v. State Highway Com., 195 Miss. 657, 13 So. 2d 614, 1943 Miss. LEXIS 120 (Miss. 1943).

The writ of mandamus is distinct from ordinary suits; it is a prerogative writ issued by the state through such representatives as it may impress with that power, and under this section [Code 1942, § 1109], suits involving the public interest are to be brought on the petition of the attorney general or a district attorney. Hancock County v. State Highway Com., 188 Miss. 158, 193 So. 808, 1940 Miss. LEXIS 15 (Miss. 1940).

This section [Code 1942, § 1109] does not authorize a county to bring an action of mandamus to compel the state highway commission to allow the county moneys expended in building a bridge, since mandamus affecting public interest can only be brought by the attorney general or by a district attorney under this section. Hancock County v. State Highway Com., 188 Miss. 158, 193 So. 808, 1940 Miss. LEXIS 15 (Miss. 1940).

4. Propriety of remedy.

Mandamus is proper remedy to compel any inferior tribunal, corporation, board, officer, or person to do or not to do an act, performance or omission of which law specially enjoins as duty resulting from office, trust, or station. Jacobs v. Bodie, 208 Miss. 779, 45 So. 2d 587, 1950 Miss. LEXIS 297 (Miss. 1950).

5. —Discretionary matters.

Circuit court erred in issuing the writ of mandamus under Miss. R. App. P. 21 because the justice court judge’s decisions to deny any further continuance and to proceed to trial on the misdemeanor DUI charge in petitioner’s absence pursuant to Miss. Code Ann. §99-17-9 were discretionary, and appeals from the justice court to the circuit court required a trial de novo, pursuant to Miss. Code Ann. §99-35-1 and Miss. Unif. Cir. & County Ct. Prac. R. 12.02; thus, the writ of mandamus was the improper procedural tool to remedy petitioner’s grievances regarding the denial of a continuance and proceeding to trial in petitioner’s absence and, therefore, the grant of the writ of mandamus was in error. In re Chisolm, 837 So. 2d 183, 2003 Miss. LEXIS 42 (Miss. 2003).

Mandamus would not lie with respect to effecting of proper conduct of coroner’s inquest proceeding, such proceeding involving more than a merely ministerial act. Chisolm v. Bozeman, 336 So. 2d 1313, 1976 Miss. LEXIS 1560 (Miss. 1976).

A trial judge must have control of his docket and should be accorded reasonable latitude with respect to it and a certain amount of judicial discretion in the setting, disposition, and continuance of cases, so that only in a case of the clearest abuse of such discretion would a circuit judge’s actions with respect to the docket settings in his court be subjected to control by mandamus. Boydstun v. Perry, 249 So. 2d 661, 1971 Miss. LEXIS 1172 (Miss. 1971).

A writ of mandamus can compel an inferior tribunal to exercise its discretion but it cannot control the same. Powell v. State Tax Com., 233 Miss. 185, 101 So. 2d 350, 1958 Miss. LEXIS 368 (Miss. 1958).

Since the commissioner, in denying the applicant a permit to sell beer at retail, was not acting ministerially but in the exercise of discretion, the action of the trial judge in refusing to grant the writ of mandamus was affirmed. Powell v. State Tax Com., 233 Miss. 185, 101 So. 2d 350, 1958 Miss. LEXIS 368 (Miss. 1958).

Mandamus was not the proper remedy to obtain relief from the action of the board of disability and relief appeal, in denying benefits to a policeman’s widow from a relief fund for firemen and policemen, where such board did not refuse to act but in the exercise of its discretion denied relief. City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647, 1940 Miss. LEXIS 86 (Miss. 1940).

Statute providing that state auditor should issue warrants for fees of county officers in connection with lands sold to state for taxes after receiving land commissioner’s calculations as to fees, if auditor should find fees correct, conferred upon auditor exercise of discretion and judgment in passing on fees, so that county officer was not entitled to mandamus to compel auditor to issue warrants without first bringing suit. Thomas v. Price, 171 Miss. 450, 158 So. 206, 1934 Miss. LEXIS 284 (Miss. 1934).

Mandamus will not lie to compel extension of municipal water system for connection to new addition over distance of 700 feet the matter being discretionary with city authorities. City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 1926 Miss. LEXIS 242 (Miss. 1926).

Act of insurance commission in licensing insurance companies to do business in this state are not reviewable by mandamus on the ground that the company’s policy on its face violates statute, nor can mandamus to compel him to revoke such license for subsequent acts be sustained without proof dehors the policy itself. Cole v. State, 91 Miss. 628, 45 So. 11, 1907 Miss. LEXIS 168 (Miss. 1907).

In approving or disapproving bonds of county officers, the president of the board of supervisors acts judicially, and however unjust or arbitrary his acts may be, they are not subject to revision by mandamus. Shotwell v. Covington, 69 Miss. 735, 12 So. 260, 1892 Miss. LEXIS 17 (Miss. 1892).

Where a discretion is left in an inferior tribunal, the writ of mandamus can only compel it to act, but cannot control the discretion. Madison County Court v. Alexander, 1 Miss. 523, 1832 Miss. LEXIS 13 (Miss. 1832); Board of Police v. Grant, 17 Miss. 77, 1847 Miss. LEXIS 91 (Miss. 1847); Swan v. Gray, 44 Miss. 393, 1870 Miss. LEXIS 124 (Miss. 1870); Vicksburg v. Rainwater, 47 Miss. 547, 1872 Miss. LEXIS 90 (Miss. 1872); Clayton v. McWilliams, 49 Miss. 311, 1873 Miss. LEXIS 117 (Miss. 1873); State Board of Education v. West Point, 50 Miss. 638, 1874 Miss. LEXIS 103 (Miss. 1874); Board of Supervisors v. State, 63 Miss. 135, 1885 Miss. LEXIS 33 (Miss. 1885); Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 1926 Miss. LEXIS 242 (Miss. 1926); Alex Loeb, Inc., v. Board of Trustees, 171 Miss. 467, 158 So. 333, 1935 Miss. LEXIS 2 (Miss. 1935); Clarksdale v. Harris, 188 Miss. 806, 196 So. 647, 1940 Miss. LEXIS 86 (Miss. 1940).

6. —Moot questions.

Mandamus properly dismissed on question becoming moot. State ex rel. Horton v. Lawrence, 121 Miss. 338, 83 So. 532, 1919 Miss. LEXIS 168 (Miss. 1919).

A petition for mandamus against officers for the performance of duties enjoined by the statute will be dismissed when the statute, pending an appeal by the defendants, is repealed in so far as the petitioner can claim any right thereunder. McClurg v. Wineman, 80 Miss. 73, 31 So. 537 (Miss. 1902).

7. —Election matters.

The petitioners were not entitled to a writ of mandamus to require a city to call an election under Code 1942, § 7322-23, pursuant to the issuance of bonds for the purpose of carrying out an urban renewal project, where in their petition for the writ they did not allege and claim that they had an interest separate from or in excess of that of the general public or that they would suffer any special legal injury or personal damages apart from the body of citizens of the city as a whole. Wilson v. Laurel, 249 So. 2d 801, 1971 Miss. LEXIS 1180 (Miss. 1971).

Mandamus did not lie to require county election commissioners to restore name erased from registration books on ground petitioner had become disqualified as elector. Calvert v. Crosby, 163 Miss. 177, 139 So. 608, 1932 Miss. LEXIS 25 (Miss. 1932).

As to mandamus to compel mayor and board of aldermen to order an election. Mayor & Board of Aldermen of Jackson v. State, 102 Miss. 663, 59 So. 873, 1912 Miss. LEXIS 105 (Miss. 1912).

Where commissioners of election reject an entire ballot box on the ground of illegal votes, mandamus will lie to compel them to reassemble and canvass and return the ballots. State ex rel. Hudson v. Pigott, 97 Miss. 599, 54 So. 257 (Miss. 1910).

Mandamus not maintainable in primary election contests. State ex rel. Barbee v. Brown, 90 Miss. 876, 44 So. 769, 1907 Miss. LEXIS 119 (Miss. 1907).

Where a municipal charter requires the mayor and aldermen to appoint election commissioners, and after the close of the polls to ascertain the results in the presence of the mayor and at least one alderman, who, with the commissioners, shall certify the returns, the duty of the mayor to certify the returns is ministerial, and he may be compelled to do so by mandamus. Bourgeois v. Fairchild, 81 Miss. 708, 33 So. 495, 1902 Miss. LEXIS 191 (Miss. 1902).

A writ of mandamus will not lie for the purpose of inquiring into the qualifications of electors, or the legality of an election as affected by matters not apparent on the face of the returns. State ex rel. Attorney Gen. v. Board of Sup'Rs., 91 Miss. 582, 3 So. 143, 1907 Miss. LEXIS 131 (Miss. 1907).

8. —Payment of claims.

Order of board of supervisors allowing claim, not act of clerk issuing warrant, must be foundation of mandamus proceeding against board to compel payment of warrant. Tullos v. Board of Supervisors, 208 Miss. 705, 45 So. 2d 349, 1950 Miss. LEXIS 289 (Miss. 1950).

Petition for mandamus against county board of supervisors to compel payment of warrants is properly dismissed when neither petition nor proof showed steps necessary to make valid contracts had been taken, and orders of board allowing accounts neither showed nor recited jurisdictional facts, there was nothing in orders to show existence of contracts between board and creditor, nothing in records showing call for bids, submission of bids, or making of contracts, and no statement or bills in record showed existence of these accounts. Tullos v. Board of Supervisors, 208 Miss. 705, 45 So. 2d 349, 1950 Miss. LEXIS 289 (Miss. 1950).

Formal written demand upon the state highway commission was not prerequisite to relief in mandamus to compel the commission to appraise and reimburse county for the value of paving on state highway, pursuant to Code 1942, § 8036, where formal written notice would not have availed the county. State Highway Com. v. McGowen, 198 Miss. 853, 23 So. 2d 893, 1945 Miss. LEXIS 261 (Miss. 1945).

Order of county board of supervisors allowing three claims each for less than $250 although their total exceeded that amount, was sufficient on its face to constitute a valid and binding judgment, the payment of which the holders thereof were entitled to compel by mandamus, although the order did not recite jurisdictional facts reciting competitive bids. Clayton v. Paden, 198 Miss. 163, 21 So. 2d 823, 1945 Miss. LEXIS 179 (Miss. 1945).

The chancery court was without jurisdiction to grant a mandatory writ of injunction to a county to compel the state highway commission to appraise the pavement of sections of state highway built at local expense and to pay the county therefor, as provided by statute, mandamus being the proper remedy for the county to pursue. Madison County v. Mississippi State Highway Com., 191 Miss. 192, 198 So. 2d 284, 198 So. 284, 1940 Miss. LEXIS 255 (Miss. 1940).

That governor as chairman of building commission could not be compelled to sign certificate for claimant’s warrant held not to deprive claimant of right to have mandamus issued against secretary of commission. Trotter v. Frank P. Gates & Co., 162 Miss. 569, 139 So. 843, 1932 Miss. LEXIS 150 (Miss. 1932).

Mandamus will not lie to compel county to pay salary of prosecuting attorney. Board of Sup'rs v. State, 134 Miss. 180, 98 So. 593, 1924 Miss. LEXIS 252 (Miss. 1924).

Mandamus will not lie to compel supervisors to issue warrant in payment of claim for refund of taxes allowed by auditor and attorney-general. Pearl River County v. Lacey Lumber Co., 128 Miss. 885, 91 So. 572, 1922 Miss. LEXIS 149 (Miss. 1922).

County board of supervisors may be compelled by mandamus to pay judgment from its general fund or to levy a tax. Town of Crenshaw v. Jackson, 122 Miss. 711, 84 So. 912, 1920 Miss. LEXIS 471 (Miss. 1920).

Mandamus proper remedy to compel clerk of separate district to issue warrant to pay compensation to school superintendent. Ladner v. Talbert, 121 Miss. 592, 83 So. 748 (Miss. 1920).

Constitution 1890 § 212 fixing the rate of interest to be paid by the state upon trust funds held by it for educational purposes and the dates for the distribution of same, is not self-executing, and the courts will not compel the auditor to issue a warrant in payment of the state’s obligation thereunder in the absence of legislative appropriation for that purpose. State ex rel. Barron v. Cole, 81 Miss. 174, 32 So. 314, 1902 Miss. LEXIS 108 (Miss. 1902).

The board of supervisors is without discretion to reject an allowance by the circuit court to its clerk, under Code 1892, § 1995 (Code 1906, § 2171), and may be compelled by mandamus to provide for its payment. Chatters v. Coahoma County, 73 Miss. 351, 19 So. 107, 1895 Miss. LEXIS 138 (Miss. 1895).

The writ should be allowed as to the items of an account that the board has illegally rejected, although the account may contain another item that it has legally rejected, in view of the strongly remedial nature of the statute assimilating mandamus proceedings to ordinary actions at law. Chatters v. Coahoma County, 73 Miss. 351, 19 So. 107, 1895 Miss. LEXIS 138 (Miss. 1895).

The equitable assignee of a part of a claim against a county cannot by mandamus compel the supervisors to make an allowance and issue a warrant in his favor. Foote v. Board of Supervisors, 67 Miss. 156, 6 So. 612, 1889 Miss. LEXIS 2 (Miss. 1889).

Mandamus is the proper remedy to enforce the payment of valid claims against towns which have been audited and allowed. Kelly v. Wimberly, 61 Miss. 548, 1884 Miss. LEXIS 127 (Miss. 1884).

Mandamus is the proper remedy to enforce the payment of valid claims against counties which have been audited and allowed. Beard v. Board of Supervisors, 51 Miss. 542, 1875 Miss. LEXIS 77 (Miss. 1875); Board of Supervisors v. Arrghi, 51 Miss. 667, 1875 Miss. LEXIS 93 (Miss. 1875); Klein v. Board of Supervisors, 54 Miss. 254, 1876 Miss. LEXIS 27 (Miss. 1876); Honea v. Board of Supervisors, 63 Miss. 171, 1885 Miss. LEXIS 42 (Miss. 1885); Taylor v. Board of Sup'rs, 70 Miss. 87, 12 So. 210, 1892 Miss. LEXIS 107 (Miss. 1892).

9. —Tax matters.

Mandamus will lie to require drainage commissioners to assemble and act in matter of making additional assessments. Anderson v. Robins, 161 Miss. 604, 137 So. 476, 1931 Miss. LEXIS 281 (Miss. 1931).

Drainage commissioners cannot be required by mandamus to make such assessment of benefits as will be sufficient to pay indebtedness due contractor. Anderson v. Robins, 161 Miss. 604, 137 So. 476, 1931 Miss. LEXIS 281 (Miss. 1931).

Mandamus proper remedy to compel board of supervisors to increase valuations as ordered by tax commission. Taylor v. State, 121 Miss. 771, 83 So. 810, 1920 Miss. LEXIS 121 (Miss. 1920).

Mandamus cannot be issued to compel levy of tax beyond statutory limit. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

Mandamus will lie to compel tax collector to collect assessment on property that has escaped taxation though some of the assessments may be barred. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, 1909 Miss. LEXIS 202 (Miss. 1909).

Mandamus will lie to compel the assessor to assess property that has escaped taxation for former years. State ex rel. District Attorney v. Simmons, 70 Miss. 485, 12 So. 477, 1892 Miss. LEXIS 130 (Miss. 1892), limited, Barnes v. Jones, 139 Miss. 675, 103 So. 773, 1925 Miss. LEXIS 115 (Miss. 1925).

10. —Bond issues.

Mandamus will lie to compel board of supervisors to issue bonds for purpose of acquiring land for constructing and operating a community hospital after election in favor thereof was had pursuant to the provisions of Laws 1944, ch 277, as amended by Laws 1946, ch 412 (Code 1942, §§ 7129-50 et seq.), notwithstanding subsequent order of board rescinding its action, since a validating act eliminated any irregularity in the proceeding with respect to the election. Board of Sup'rs v. State, 206 Miss. 443, 40 So. 2d 273, 1949 Miss. LEXIS 272 (Miss. 1949).

Company selling goods to county held not entitled to mandatory order requiring board of supervisors to issue bonds to pay claim, where seller did not show it would be entitled as matter of right to have clerk issue warrant if money were available to pay it. American Oil Co. v. Bishop, 163 Miss. 249, 141 So. 271, 1932 Miss. LEXIS 35 (Miss. 1932).

Mandamus proper remedy to enforce ministerial act of board of supervisors in issuing road district bonds. Board of Sup'rs v. Dean, 120 Miss. 334, 82 So. 257, 1919 Miss. LEXIS 90 (Miss. 1919).

Mandamus will not lie to compel supervisors to issue bonds for roads. Robinson v. Board of Sup'rs, 105 Miss. 90, 62 So. 3, 1913 Miss. LEXIS 185 (Miss. 1913).

11. —School matters.

A petition for a writ of mandamus filed by a county board of education against the board of supervisors of funds earmarked for the use of the schools will be dismissed because the county board of education had no authority to compel the board of supervisors to act by issuance of a writ of mandamus. Board of Education v. Sigler, 208 So. 2d 890, 1968 Miss. LEXIS 1433 (Miss. 1968).

A writ of mandamus was properly refused in action by school principal against county superintendent of education, to which county board of education was not a party, to require payment of principal’s salary for a period of time during which he was required by order of the board to take a leave of absence, for the board alone has control of school funds, and to have granted writ would have left superintendent in precarious position and subjected him to possible further litigation. Chatham v. Johnson, 195 So. 2d 62, 1967 Miss. LEXIS 1425 (Miss. 1967).

Where the members of a board have exercised their discretion as to whether or not they should risk incurring court costs and the expenditure of funds for attorneys’ fees in connection with a suit to require a contractor to carry out the terms for construction of a high school and to make good on defects therein, their discretion cannot be controlled by a mandamus, nor can they be required to act in a prescribed manner to obtain relief on account of the defects complained of. State by Coleman v. Cameron, 223 Miss. 50, 77 So. 2d 716, 1955 Miss. LEXIS 351 (Miss. 1955).

Mayor could not be compelled to execute and deliver a warrant, upon requisition by board of trustees, on maintenance fund in municipal separate school district for the payment of an installment due on building contract for the construction of a gymnasium and vocational training building instead of against a bond and building fund containing ample funds for that purpose. Williams v. State, 209 Miss. 251, 46 So. 2d 591, 1950 Miss. LEXIS 385 (Miss. 1950).

Order of county school board detaching territory of outlying school district and adding it to another district in adjacent county without concurrent action by school board of other county was ineffectual as ground for refusal of board of supervisors to continue annual tax levy for the school district and to constitute a defense to mandamus proceedings to compel the board of supervisors to levy such tax. State ex rel. Chatham v. Bd. of Supervisors, 209 Miss. 79, 46 So. 2d 73, 1950 Miss. LEXIS 363 (Miss. 1950).

Where school tax was originally ordered on petition of a majority of the electors of school district, the board of supervisors was under a duty to continue the tax for successive years so long as the school district is maintained unless changed by petition of a majority of the electors of the district, and mandamus will lie at the suit of the district attorney to compel the board to levy such tax upon their neglect or refusal. State ex rel. Chatham v. Bd. of Supervisors, 209 Miss. 79, 46 So. 2d 73, 1950 Miss. LEXIS 363 (Miss. 1950).

Mandamus will lie against trustees of consolidated school district to issue trustee order for payment of balance due under contract to build auditorium for total cost price set out in accepted bid, since simple mathematical process of subtraction of sum of payments made demonstrates amount due, and no judicial attributes or exercise of discretion is involved. Jacobs v. Bodie, 208 Miss. 779, 45 So. 2d 587, 1950 Miss. LEXIS 297 (Miss. 1950).

Under Code 1942, § 6370, providing that on petition of majority of qualified electors residing in consolidated school district, board of supervisors may issue bonds for such consolidated school district for purposes therein set out, it becomes mere ministerial duty of board of supervisors to issue bonds for consolidated school district as petitioned for, performance of which duty can be compelled by mandamus, when all jurisdictional facts have been affirmatively adjudicated by board, or by circuit court upon appeal from order of board on bill of exceptions, to be present. Board of Sup'rs v. State, 205 Miss. 43, 38 So. 2d 314, 1949 Miss. LEXIS 410 (Miss. 1949).

Under Code 1942, § 6370, providing that on petition of majority of qualified electors residing in consolidated school district, board of supervisors may issue bonds for such consolidated school district for purposes therein set out, it is judicial function of board to decide question of whether or not majority of qualified electors of school district have petitioned for issuance of bonds, to determine whether amount petitioned for will exceed any statutory limitation thereon, and to determine whether or not bonds are to be issued for purposes authorized by law and this judicial function of board cannot be controlled by writ of mandamus. Board of Sup'rs v. State, 205 Miss. 43, 38 So. 2d 314, 1949 Miss. LEXIS 410 (Miss. 1949).

When board of supervisors, acting under Code 1942, § 6370, providing that on petition of majority of qualified electors residing in consolidated school district, board may issue bonds for such district for purposes therein set out, rejects such petition for reasons it deems sufficient, or for no reason at all, without adjudicating necessary jurisdictional facts to exist, remedy of petitioners is appeal to circuit court under Code 1942, § 1195, and not writ of mandamus under this section [Code 1942, § 1109], on which appeal petitioners can obtain in circuit court adjudication of all jurisdictional facts which are alleged to have existed by having embodied such facts in bill of exceptions. Board of Sup'rs v. State, 205 Miss. 43, 38 So. 2d 314, 1949 Miss. LEXIS 410 (Miss. 1949).

Mandamus proper remedy to require superintendent to contract with qualified teacher selected by trustees of district. State ex rel. Cowan v. Morgan, 141 Miss. 585, 106 So. 820, 1926 Miss. LEXIS 459 (Miss. 1926).

Mandamus will lie to compel school trustees to receive children wrongfully excluded from school. Clark v. Board of Trustees, 117 Miss. 234, 78 So. 145, 1918 Miss. LEXIS 168 (Miss. 1918).

A public schoolteacher duly licensed to teach has a valuable right, the loss of which cannot be compensated in damages, and for the protection of which he is entitled to a mandamus. Brown v. Owen, 75 Miss. 319, 23 So. 35, 1897 Miss. LEXIS 131 (Miss. 1897).

12. —Miscellaneous cases.

Petition for writ of prohibition was denied where discovery of alleged trade secrets was sought, although issuance of protective order concerning disclosure of alleged trade secrets was found to be appropriate. American Tobacco Co. v. Evans, 508 So. 2d 1057, 1987 Miss. LEXIS 2498 (Miss. 1987).

Where the charges made by the game and fish commission to support the discharge of a game warden were not sufficient to comply with the statute, the action of the trial court in a mandamus action in entering judgment reinstating him to his position was not contrary to the overwhelming weight of the law and evidence. Vinzant v. Poole, 185 So. 2d 919, 1966 Miss. LEXIS 1535 (Miss. 1966).

No relief through mandamus can be granted against public officers to compel them to perform their duties generally, but petition for mandamus against public officers must charge them with failure to perform specific duty. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

It is reversible error for trial court to overrule motion for change of venue to official domicil made by commissioner of state highway patrol in mandamus proceeding brought in county other than his official domicil, where no case for relief is stated against patrolmen who were joined with commissioner as defendants for sole purpose of retaining venue in county in which proceeding is filed. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Mandamus is a proper remedy to enforce stockholder’s right to inspect the books of the corporation. Sanders v. Neely, 197 Miss. 66, 19 So. 2d 424, 1944 Miss. LEXIS 276 (Miss. 1944).

Stockholder of domestic insurance corporation was entitled to mandamus to compel inspection of books and records of corporations, upon petition alleging that purpose of such request was “in order to ascertain and know how the affairs of the company are conducted and whether or not the capital of which he has contributed a share is being prudently and properly employed, and in order that he may protect the business and interest of said corporation and his interest as such stockholder,” unless the executive officers of the corporation plead and prove as an affirmative defense that the stockholder is actuated by bad motives or that the inspection is not desired in order to obtain information germane to his interest as stockholder, but is for speculative purposes or to gratify idle curiosity, or out of spirit of hostility to the welfare of the corporation. Sanders v. Neely, 197 Miss. 66, 19 So. 2d 424, 1944 Miss. LEXIS 276 (Miss. 1944).

Action in mandamus by attorney general to compel board of supervisors to repair a bridge on highway No. 7 could not be maintained where there was no allegation that the board had failed to provide and maintain a bridge adequate for travel in lieu of the collapsed bridge, and the court had no power or authority to tell the board of supervisors in specific terms what kind of a bridge it should maintain at the location in question. State ex rel. Attorney Gen. v. Board of Supervisors, 196 Miss. 806, 17 So. 2d 433, 1944 Miss. LEXIS 258 (Miss. 1944).

Mandamus was proper remedy to compel city officials to comply with statute providing for retirement benefits for firemen and policemen. Mayor & Aldermen of Vicksburg v. Crichlow, 196 Miss. 259, 16 So. 2d 749, 1944 Miss. LEXIS 185 (Miss. 1944).

A bank was entitled to maintain mandamus action against a corporation to compel it to issue a new certificate of stock in exchange for the original certificate which the original stockholder had indorsed in blank and delivered to the bank, notwithstanding that the pleading showed that the stock was claimed by a third person who held a certificate thereto pursuant to the request of the administrator of the original stockholder and that the original certificate was lost or destroyed. Jackson Opera House Co. v. Cox, 188 Miss. 237, 191 So. 665, 192 So. 293, 1939 Miss. LEXIS 4 (Miss. 1939).

Mandamus will not lie when act is only done in case another person approves thereof. Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

Writ of mandamus will not be issued to direct inferior tribunal to decide issue of fact in particular way, when law has invested tribunal with original jurisdiction to decide question. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

Where ordinance designated property as residential property, and question was doubtful, court would not interfere by mandamus to compel issuance of building permit. City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287, 1930 Miss. LEXIS 43 (Miss. 1930).

Mandamus will lie to compel purchaser of property and franchises of electric lighting plant to operate the plant for the benefit of the public. State ex rel. Howie v. Benson, 108 Miss. 779, 67 So. 214, 1914 Miss. LEXIS 274 (Miss. 1914).

Mandamus will not lie to compel street railway company to operate cars on a portion of track abandoned and ordered removed by the board of supervisors as a nuisance. Wright v. Edwards H. & C. R. Co., 101 Miss. 470, 58 So. 332, 1911 Miss. LEXIS 159 (Miss. 1911).

Mandamus is maintainable against city officers. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, 1909 Miss. LEXIS 202 (Miss. 1909).

Mandamus will lie to compel board of aldermen to expunge void act from its records. Adams v. Clarksdale, 95 Miss. 88, 48 So. 242, 1909 Miss. LEXIS 202 (Miss. 1909).

A contractor for public work cannot mandamus the board of supervisors to have the work inspected and approved, under Code 1892, § 342, the section being alone for the security of the county. Young v. Leflore County, 81 Miss. 466, 33 So. 410, 1902 Miss. LEXIS 177 (Miss. 1902).

Mandamus lies to compel a board of supervisors to perform the duty imposed by Code 1892, § 2061 (Code 1906, § 2240), as to jointly building and maintaining a fence at or near the county line to prevent stock straying from a county in which the stock law has not been adopted into an adjoining county where it is in force. Board of Sup'rs v. State, 70 Miss. 769, 12 So. 904 (Miss. 1893); Montgomery County v. State, 71 Miss. 153, 15 So. 28, 1893 Miss. LEXIS 198 (Miss. 1893).

Officers and tribunals have no right to refuse to enforce a statute because it may be thought unwise; and they may be forced by mandamus to act. Board of Supervisors v. State, 63 Miss. 135, 1885 Miss. LEXIS 33 (Miss. 1885).

The governor cannot be compelled by mandamus to perform any act. Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102, 1883 Miss. LEXIS 79 (Miss. 1883); Wood v. State, 169 Miss. 790, 142 So. 747, 1932 Miss. LEXIS 8 (Miss. 1932).

A judge may be compelled by mandamus to sign a bill of exceptions. Williams v. Ramsey, 52 Miss. 851, 1876 Miss. LEXIS 306 (Miss. 1876), limited, Rankin County Savings-Bank v. Johnson, 56 Miss. 125, 1878 Miss. LEXIS 46 (Miss. 1878).

13. Defenses.

Where the game and fish commission was in no way adversely affected by the plaintiff’s delay of seven months in filing a mandamus action for reinstatement to the position from which he had been unlawfully discharged, and there was no evidence of laches on plaintiff’s part, the judgment of the lower court reinstating the plaintiff was affirmed. Cannada v. Marlar, 185 So. 2d 649, 1966 Miss. LEXIS 1514 (Miss. 1966).

It is no defense in a mandamus suit by stockholder of a domestic insurance corporation to compel inspection of the books and records of the corporation that, if one stockholder is given that right, all the stockholders can demand the same right, thereby interrupting the orderly conduct of the business of the corporation. Sanders v. Neely, 197 Miss. 66, 19 So. 2d 424, 1944 Miss. LEXIS 276 (Miss. 1944).

It was no defense in mandamus suit by stockholder of domestic insurance corporation to compel the officers thereof to permit inspection of the books and records of the corporation, that the officers of the corporation refused to permit such inspection pursuant to interpretation of insurance commissioner, based upon erroneous advice obtained from the state’s legal department that the stockholder’s common-law right of inspection had been abrogated by the insurance laws. Sanders v. Neely, 197 Miss. 66, 19 So. 2d 424, 1944 Miss. LEXIS 276 (Miss. 1944).

The unconstitutionality of the statute creating the duty the performance of which is sought is an available defense. Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, 1925 Miss. LEXIS 304 (Miss. 1925).

No defense to mandamus to compel county to pay a valid claim, that officers in charge of funds have illegally used them to pay other claims. Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209, 1915 Miss. LEXIS 170 (Miss. 1915).

It is no defense to a mandamus to compel a county which has not adopted the stock law to build half of a fence between it and an adjoining county in which the law has been declared in force, or to pay half the expense of erecting such fence, to plead the invalidity of the election in the other county. Montgomery County v. State, 71 Miss. 153, 15 So. 28, 1893 Miss. LEXIS 198 (Miss. 1893).

Nor is it an answer that the other county has already built the larger part of the fence, and it is no objection to the form of a judgment that it is in the alternative, commanding defendant to join in defraying the expense, or to erect half the fence. Montgomery County v. State, 71 Miss. 153, 15 So. 28, 1893 Miss. LEXIS 198 (Miss. 1893).

It is no defense to an application for a mandamus to compel the issuance of a patent to state land that there is an outstanding title in a stranger. Myers v. State, 61 Miss. 138, 1883 Miss. LEXIS 86 (Miss. 1883).

14. Judgment.

Although mandamus would issue to compel state highway commission to appraise and reimburse county for paving part of final location of state highway under Code 1942, § 8036 where the commission has on hand money for the appraisement and which is at its command for that purpose, the order will not include payment of the appraised amount where the commission does not have on hand, or within prospect without legislative aid, the sums needed to pay the appraisement along with similar demands of other counties. State Highway Com. v. McGowen, 198 Miss. 853, 23 So. 2d 893, 1945 Miss. LEXIS 261 (Miss. 1945).

Judgment in mandamus action to compel city to comply with statute creating retirement benefits for firemen and policemen, was too broad in assuming to adjudge merits of petitioner’s claim, in that it included a prejudgment of matters within the discretion of the board, created by the act, and as applying to duties imposed upon the city which could not be enforced by mandamus. Mayor & Aldermen of Vicksburg v. Crichlow, 196 Miss. 259, 16 So. 2d 749, 1944 Miss. LEXIS 185 (Miss. 1944).

Judgment in mandamus to compel payment of prior judgment, not void because against mayor and board of aldermen where suit was against town. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

Judgment in mandamus against town operates on the clerk and other officers thereof. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

The circuit court cannot fix the time and place for the meeting of the eminent domain court, and in awarding mandamus it can only command the justice to reconvene the court and proceed according to law. Sullivan v. Yazoo & M. V. R. Co., 85 Miss. 649, 38 So. 33, 1904 Miss. LEXIS 177 (Miss. 1904).

15. Injunction against issuance.

Prosecution of mandamus proceedings can be restrained. Humphreys County v. Cashin, 136 Miss. 476, 101 So. 571, 1924 Miss. LEXIS 157 (Miss. 1924).

County’s suit to enjoin prosecution of mandamus or an alternative for judgment on indemnity bond held within jurisdiction of equity. Humphreys County v. Cashin, 136 Miss. 476, 101 So. 571, 1924 Miss. LEXIS 157 (Miss. 1924).

16. Miscellaneous.

A circuit court had jurisdiction to issue a writ of mandamus compelling a city to comply with an order of its civil service commission to reinstate an employee where the city had placed the employee in a different job position from the one she had previously held; placement of the employee in another position at the same salary was not “reinstatement” which entitles an employee to be reinstated in the position from which he or she was removed. City of Jackson v. Martin, 623 So. 2d 253, 1993 Miss. LEXIS 316 (Miss. 1993).

Equity will not grant a mandatory injunction to a county against the state highway commission on the ground that an adequate remedy by mandamus is unavailable, because the attorney general is required by law to represent the commission in suits brought against it, and that, therefore, he is not available to represent the county in a proceeding by mandamus against the commission, where the complaint contained no allegation that a request was ever made that either the attorney general or any of the district attorneys of the state permit the use of their names to bring a mandamus proceeding on petition of the state on relation of such an officer, or that such a request would have been of no avail. Madison County v. Mississippi State Highway Com., 191 Miss. 192, 198 So. 2d 284, 198 So. 284, 1940 Miss. LEXIS 255 (Miss. 1940).

Where petition for mandamus was sufficient to charge that commissioners of drainage district had failed to make annual assessment as required to do by statute and which was necessary as predicate to action by board of supervisors in making annual tax levy, neither board of supervisors nor tax collectors were necessary parties in mandamus proceeding to compel payment of bonds. Johnson v. Bruce, 177 Miss. 581, 171 So. 685, 1937 Miss. LEXIS 143 (Miss. 1937).

Where jurisdiction of law court to remedy official inaction was not wholly of statutory origin, supreme court could not reverse decree in equity enjoining officials to make assessment because equity court was without jurisdiction. Anderson v. Robins, 161 Miss. 604, 137 So. 476, 1931 Miss. LEXIS 281 (Miss. 1931).

On appeal from judgment improperly refusing mandamus to compel commissioners of election to reassemble and canvass and return the ballots, the supreme court will not remand case but will render judgment requiring them to do so. State ex rel. Hudson v. Pigott, 97 Miss. 599, 54 So. 257 (Miss. 1910).

In mandamus to compel supervisors to meet and declare the result of an election, no evidence is admissible except the report of the election commissioners. McHenry v. State, 91 Miss. 562, 44 So. 831, 1907 Miss. LEXIS 155 (Miss. 1907).

In mandamus by a teacher to enforce her rights under contract, it is competent to show that a trustee, notwithstanding the irregularity in his election, had been recognized as trustee by the county superintendent and others. Whitman v. Owen, 76 Miss. 783, 25 So. 669, 1899 Miss. LEXIS 17 (Miss. 1899).

OPINIONS OF THE ATTORNEY GENERAL

If the Clerk of the Board of Supervisors believes the Board of Supervisors has issued an order directing the Clerk to act, when in good faith such action is believed by the Clerk to be improper or illegal, the appropriate action in such a case would be for the Clerk to seek judicial review of the board’s order. Blackwell, April 27, 1995, A.G. Op. #95-0193.

Miss. Code Ann. §21-8-19 requires a mayor who is unable to serve due to absence, disability or other causes to appoint a member of the city council to assume the duties of the mayor. The appointee cannot be a city employee or a group of city employees, however a mayor may delegate certain powers to city employees in the ordinary course of business. When a mayor is unable to serve for sixty consecutive days, the city council is required to appoint one of its members as acting mayor and may be forced to do so by a writ of mandamus. McLemore, February 23, 2007, A.G. Op. #07-00087, 2007 Miss. AG LEXIS 32.

RESEARCH REFERENCES

ALR.

Mandamus as remedy to compel assertedly disqualified judge to rescue self or to certify his disqualification. 45 A.L.R.2d 937.

Prohibition as appropriate remedy to restrain civil action for lack of jurisdiction of the person. 92 A.L.R.2d 247.

Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case. 92 A.L.R.2d 306.

Prohibition or mandamus as appropriate remedy to review ruling on change of venue in civil case. 93 A.L.R.2d 802.

Availability of mandamus or prohibition to compel or to prevent discovery proceedings. 95 A.L.R.2d 1229.

Scope and extent, and remedy or sanctions for infringement, of accused’s right to communicate with his attorney. 5 A.L.R.3d 1360.

Mandamus to compel zoning officials to cancel permit granted in violation of zoning regulation. 68 A.L.R.3d 1656.

Mandamus, under 28 USCS § 1361, to compel prompt hearing in appeal from denial of Social Security disability benefits. 47 A.L.R. Fed. 929.

Mandamus as remedy to compel disqualification of federal judge. 56 A.L.R. Fed. 494.

Am. Jur.

52 Am. Jur. 2d (Rev), Mandamus §§ 29 et seq., 39 et seq., 44 et seq., 57 et seq., 380 et seq.

17 Am. Jur. Pl & Pr Forms (Rev), Mandamus, Forms 21 et seq. (application for writ).

17 Am. Jur. Pl & Pr Forms (Rev), Mandamus, Form 172.1 (Demurrer – To petition or application for writ of mandamus).

17 Am. Jur. Pl & Pr Forms (Rev), Mandamus, Form 191.1 (Order – Dismissing application for writ of mandamus – Multiple bases).

17 Am. Jur. Pl & Pr Forms (Rev), Mandamus, Form 205.1 (Alternative writ of mandamus – To prevent destruction of animals).

20 Am. Jur. Pl & Pr Forms (Rev), Prohibition, Forms 21 et seq. (petition or application for writ).

CJS.

55 C.J.S., Mandamus §§ 28 et seq., 67 et seq., 81–83 et seq., 130 et seq., 158 et seq., 258, 259 et seq., 357-366.

§ 11-41-3. Filing of complaint.

The complaint shall be filed in the circuit court of the county in which the tribunal, corporation, board, officer, or person made defendant, or some one or more of them, shall reside or be found; but if the judge of that court be interested, the complaint may be filed in an adjoining circuit court district.

HISTORY: Codes, 1871, § 1518; 1880, § 2543; 1892, § 2847; 1906, § 3232; Hemingway’s 1917, § 2534; 1930, § 2349; 1942, § 1110; Laws, 1991, ch. 573, § 78, eff from and after July 1, 1991.

Cross References —

Jurisdiction of circuit court generally, see §9-7-81.

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In an action by the members of a Confederate Veterans society against a university for violating Miss. Code Ann. §55-15-81, the circuit court properly ruled that, despite their argument to the contrary and the nomenclature used, the case was a mandamus action and not one for injunctive relief, denied the members’ motion to retransfer to the chancery court, and granted a university’s motion to dismiss the action for lack of standing because the members failed to challenge the judgment from the chancery court transferring the case, the circuit court had jurisdiction under two statutes, and the members had no private right that entitled them to require that the university refrain from implementing its diversity plan. Miss. Div. of Sons of Confederate Veterans v. Univ. of Miss., 269 So.3d 1235, 2018 Miss. App. LEXIS 425 (Miss. Ct. App. 2018).

Petitions for mandamus requesting that circuit clerk and justice court clerk be directed to accept in forma pauperis filings were not properly before Supreme Court; petitions should have been filed with circuit court. Ivy v. State, 688 So. 2d 223, 1997 Miss. LEXIS 5 (Miss. 1997).

In an action by a forensic psychiatric aide for reinstatement to his former position at a state hospital, the trial court erred in overruling defendant hospital’s motion for a change of venue to the county in which it was domiciled and in which its director was a resident. Mississippi State Hospital v. Crawford, 372 So. 2d 297, 1979 Miss. LEXIS 2149 (Miss. 1979).

Where there were two suits pending against the superintendent of education for mandamus in connection with proposed lease of certain sixteenth section lands, one in the circuit court brought by the prospective lessees and the other in the Supreme Court brought by the county board of supervisors, the petition filed in the Supreme Court as an original suit would be dismissed because the appeal by the superintendent of education from the order of the board of supervisors directing the execution of the lease, pending before the Supreme Court, could not be cut off in this manner and, secondly, statutory jurisdiction of a mandamus suit against an official such as the superintendent of education was vested in the circuit court whose jurisdiction could not be circumvented by the filing of an independent and original case in the Supreme Court. State ex rel. Herring v. Cox, 285 So. 2d 462, 1973 Miss. LEXIS 1288 (Miss. 1973).

In a case showing the clearest abuse of judicial discretion in a circuit judge’s actions with respect to the docket headings in his court, original jurisdiction of the proceedings must necessarily rest with the Supreme Court, although factual questions might be heard by a specially designated trial judge appointed by the Supreme Court to act as the trier of fact. Boydstun v. Perry, 249 So. 2d 661, 1971 Miss. LEXIS 1172 (Miss. 1971).

Proper venue of mandamus proceeding against commissioner of Mississippi highway safety patrol is public officer’s official domicil; that is, the City of Jackson in the First Judicial District of Hinds County. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

It is reversible error for trial court to overrule motion for change of venue to official domicil made by commissioner of state highway patrol in mandamus proceeding brought in county other than his official domicil where no case for relief is stated against patrolmen who were joined with commissioner as defendants for sole purpose of retaining venue in county in which proceeding is filed. Birdsong v. Grubbs, 208 Miss. 123, 43 So. 2d 878, 1950 Miss. LEXIS 234 (Miss. 1950).

Venue of a mandamus action by Hancock County to compel the state highway commission to appraise and reimburse such county its proportionate value of a bridge constructed by Hancock and Harrison Counties, which had been taken over by the highway commission and had become a part of United States Highway 90, was in Hinds County, where the state highway commission had its permanent office. State ex rel. Cowan v. State Highway Com., 195 Miss. 657, 13 So. 2d 614, 1943 Miss. LEXIS 120 (Miss. 1943).

RESEARCH REFERENCES

ALR.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Am. Jur.

52 Am. Jur. 2d, Mandamus § 371.

CJS.

55 C.J.S., Mandamus § 392, 393.

§§ 11-41-5 through 11-41-17. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-41-5. [Codes, 1871, § 1519; 1880, § 2544; 1892, § 2848; 1906, § 3233; Hemingway’s 1917, § 2535; 1930, § 2350; 1942, § 1111]

§11-41-7. [Codes, 1871, § 1520; 1880, § 2545; 1892, § 2849; 1906, § 3234; Hemingway’s 1917, § 2536; 1930, § 2351; 1942, § 1112; Am Laws, 1980, ch. 383, § 1]

§11-41-9. [Codes, 1871, § 1523; 1880, § 2546; 1892, § 2850; 1906, § 3235; Hemingway’s 1917, § 2537; 1930, § 2352; 1942, § 1113]

§11-41-11. [Codes, 1871, § 1524; 1880, § 2547; 1892, § 2851; 1906, § 3236; Hemingway’s 1917, § 2538; 1930, § 2353; 1942, § 1114]

§11-41-13. [Codes, 1880, § 2548; 1892, § 2852; 1906, § 3237; Hemingway’s 1917, § 2539; 1930, § 2354; 1942, § 1115]

§11-41-15. [Codes 1871, § 1525; 1880, § 2549; 1892, § 2853; 1906, § 3238; Hemingway’s 1917, § 2540; 1930, § 2355; 1942, § 1116]

§11-41-17. [Codes, 1871, § 1526; 1880, § 2550; 1892, § 2854; 1906, § 3239; Hemingway’s 1917, § 2541; 1930, § 2356; 1942, § 1117]

Editor’s Notes —

Former §11-41-5 related to what petition shall contain and summons.

Former §11-41-7 related to the pleadings and proceedings.

Former §11-41-9 related to the writ – how served.

Former §11-41-11 related to obedience to the writ enforced.

Former §11-41-13 related to orders in vacation – appeal and supersedeas.

Former §11-41-15 related to an act order done by another in certain cases.

Former §11-41-17 related to temporary orders.

§ 11-41-19. Mandamus in certain cases triable in vacation.

A proceeding by mandamus may be tried and determined in termtime or in vacation; and, if tried in vacation, all the provisions of law relating to the trial and proceedings in vacation of information in the nature of quo warranto shall apply.

HISTORY: Codes, 1880, § 2551; 1892, § 2855; 1906, § 3240; Hemingway’s 1917, § 2542; 1930, § 2357; 1942, § 1118; Laws, 1980, ch. 383, § 2, eff from and after July 1, 1980.

Cross References —

Procedural rules applicable to civil actions, see Miss. R. Civ. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

In a mandamus proceeding, the supreme court on appeal may issue the writ. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

Where a case was begun as a vacation matter under this section [Code 1942, § 1118], the petitioner had complied with the provisions of Code 1942, § 1141, and the supreme court had reversed the case with direction that the lower court issue a writ of mandamus as prayed for in the petition, the circuit judge, after the mandate went down, had power to issue the writ of mandamus in vacation. State ex rel. Patterson v. Bd. of Supervisors, 234 Miss. 26, 105 So. 2d 154, 1958 Miss. LEXIS 457 (Miss. 1958).

Where the unsuccessful candidate brought mandamus proceeding against the circuit clerk for an order permitting the examination of ballot boxes and where the clerk filed a written agreement for a hearing during vacation, the holding of the hearing during vacation was not in error even though consent was not given by the successful candidate who intervened later in the hearing. Lopez v. Holleman, 219 Miss. 822, 69 So. 2d 903, 1954 Miss. LEXIS 392 (Miss. 1954).

A bill for mandatory injunction directing board of veterinary examiners to issue a license to practice veterinary medicine, surgery and dentistry was the proper remedy to obtain review of the board’s order denying application for license, since there was no adequate remedy at law either by certiorari or mandamus. Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 67 So. 2d 378, 1953 Miss. LEXIS 550 (Miss. 1953).

Candidate is entitled to enforce right of examination of ballot boxes, conferred by Corrupt Practices Act, by mandamus to be heard and determined in vacation, since such right is one affecting public interest and not merely personal to the candidate seeking to exercise it. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Writ of prohibition issued in vacation without notice by clerk of circuit court, on order of circuit judge of another district, forbidding supervisors to conduct election, held void and not to affect election. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

RESEARCH REFERENCES

Am. Jur.

52 Am. Jur. 2d, Mandamus § 477.

CJS.

55 C.J.S., Mandamus § 296.

§ 11-41-21. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1892, § 2856; 1906, § 3241; Hemingway’s 1917, § 2543; 1930, § 2358; 1942, § 1119]

Editor’s Notes —

Former §11-41-21 related to the applicability of mandamus to writs of prohibition.

Chapter 43. Habeas Corpus

§ 11-43-1. To what cases the writ extends.

The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in the cases expressly excepted.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (1, 18); 1857, ch. 48, art. 2; 1871, § 1396; 1880, § 2519; 1892, § 2226; 1906, § 2445; Hemingway’s 1917, § 2011; 1930, § 1914; 1942, § 2815.

Cross References —

Constitutional provision on habeas corpus, see Miss. Const. Art. 3, § 21.

Remedial writs grantable by supreme and circuit judges and chancellors, see §9-1-19.

Mississippi Capital Defense Litigation Act, see §§19-18-1 et seq.

Compensation of counsel in post-conviction relief cases involving the death penalty, see §99-15-18.

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

Mississippi Capital Post-Conviction Counsel Act, see §§99-39-101 et seq.

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. Nature and function of writ.

2. Restraint or confinement, necessity of.

3. Persons entitled to maintain writ.

4. Custody of minors.

5. Custody of lunatics and other incompetents.

6. To obtain bail.

7. Grounds for habeas corpus.

8. Scope of inquiry.

9. Right of appeal.

10. Review.

1. Nature and function of writ.

The function of the habeas corpus court in Mississippi in criminal cases is to release a prisoner who is being unlawfully held or to grant him a bail bond which he can make; a habeas corpus writ cannot be used as a collateral method to prevent a trial on an indictment in this state, nor can the writ be used as a post-conviction remedy, or a method of appeal out of time. Keller v. Romero, 303 So. 2d 481, 1974 Miss. LEXIS 1444 (Miss. 1974).

A habeas corpus proceeding has but one purpose, that is to set at liberty persons illegally held, by entering an order discharging the prisoner, granting bail, or for the purpose of delivering a child to the rightful custody of persons who are properly entitled to the care and custody of the child. State v. Ridinger, 279 So. 2d 618, 1973 Miss. LEXIS 1480 (Miss. 1973), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A habeas corpus proceeding may not perform the function of an appeal unless the original judgment sentence was void. State v. Ridinger, 279 So. 2d 618, 1973 Miss. LEXIS 1480 (Miss. 1973), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A habeas corpus proceeding cannot be used to effect an appeal to the Supreme Court. State v. Ridinger, 279 So. 2d 618, 1973 Miss. LEXIS 1480 (Miss. 1973), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Where a petitioner had been convicted upon a plea of guilty, his remedy, if any, for the alleged violation of his constitutional rights by questioning him without prior advice as to the right of counsel and the right to remain silent, and failure to offer the services of an attorney at his preliminary hearing, was not by habeas corpus but rather by writ of error coram nobis. Clayton v. State, 254 So. 2d 874, 1971 Miss. LEXIS 1523 (Miss. 1971).

The Mississippi habeas corpus statutes strictly limit the application of that remedy to cases only involving such defects as may appear on the face of the judgment. King v. Cook, 287 F. Supp. 269, 1968 U.S. Dist. LEXIS 9484 (N.D. Miss. 1968).

Habeas corpus proceedings cannot be made to perform the function of a writ of error. Jackson v. Waller, 248 Miss. 166, 156 So. 2d 594, 1963 Miss. LEXIS 388, 1964 Miss. LEXIS 265 (Miss. 1963), modified, 248 Miss. 172, 160 So. 2d 184 (Miss. 1964).

Coram nobis, not habeas corpus, is the proper mode of examination of the legality of a conviction of crime. Smith v. State, 155 So. 2d 494 (Miss. 1963).

The only function of a writ of habeas corpus after a conviction of crime is to inquire into the jurisdiction of the convicting tribunal. Smith v. State, 155 So. 2d 494 (Miss. 1963).

The Mississippi statutes relating to habeas corpus, and those relating to interstate rendition, are “not applicable to interstate extradition except to the extent that they may be in aid of, and not inconsistent with, the Constitution and laws of the United States on the question.” Loper v. Dees, 210 Miss. 402, 49 So. 2d 718, 1951 Miss. LEXIS 274 (Miss. 1951).

In habeas corpus proceedings questioning the sufficiency of a requisition for extradition, the admission by appellant of his indictment and conviction for rape in a sister state cures the defect of the omission of indictment or judgment of conviction being attached to the demanding papers from the governor of sister state. Loper v. Dees, 210 Miss. 402, 49 So. 2d 718, 1951 Miss. LEXIS 274 (Miss. 1951).

A telegram from another state is an adequate basis for a provisional arrest and detention of a fugitive from justice from that state and the provisional detention pending the obtaining of extradition papers is reasonable and proper. Loper v. Dees, 210 Miss. 402, 49 So. 2d 718, 1951 Miss. LEXIS 274 (Miss. 1951).

Habeas corpus cannot perform function of an appeal from criminal prosecution which is not absolutely void. McLemore v. Love, 197 Miss. 273, 19 So. 2d 828, 1944 Miss. LEXIS 296 (Miss. 1944).

Habeas corpus cannot perform functions of writ of error or appeal. Kelly v. Douglas, 164 Miss. 153, 144 So. 237, 1932 Miss. LEXIS 238 (Miss. 1932).

Adverse judgment of county court, on motion in arrest of judgment, in criminal case, on ground verdict, judgment, and sentence were void for uncertainty, could be reviewed only on appeal, and not by habeas corpus. Kelly v. Douglas, 164 Miss. 153, 144 So. 237, 1932 Miss. LEXIS 238 (Miss. 1932).

A proceeding to enforce the right of personal liberty by means of a writ of habeas corpus is civil and not criminal. State v. Gordon, 105 Miss. 454, 62 So. 431, 1913 Miss. LEXIS 231 (Miss. 1913).

2. Restraint or confinement, necessity of.

A habeas corpus petition which was filed by a work-releasee who was reincarcerated would be dismissed where the prisoner had been discharged from prison during the pendency of the appeal; nor were the prisoner’s wife or employer entitled to relief under this section. Bradley v. State, 355 So. 2d 675, 1978 Miss. LEXIS 1993 (Miss. 1978).

A petitioner is not entitled to a writ of habeas corpus while released on bond. Keller v. Romero, 303 So. 2d 481, 1974 Miss. LEXIS 1444 (Miss. 1974).

The foundation of the writ of habeas corpus in any court is the allegation that the relator is detained in custody; accordingly, one released on bail is not considered to be restrained of his liberty so as to entitle him to a writ of habeas corpus. Ex parte Walker, 53 Miss. 366, 1876 Miss. LEXIS 81 (Miss. 1876).

3. Persons entitled to maintain writ.

Inmate did not argue that he was being illegally confined, detained, or deprived of his liberty; he merely argued that the parole board failed to give him a meaningful parole hearing. However, in Mississippi, prisoners had no constitutionally recognized liberty interest in parole, and because the inmate’s petition was merely a request for parole, his petition was not a writ of habeas corpus and he was not entitled to a hearing. Johnson v. Miller, 919 So. 2d 273, 2005 Miss. App. LEXIS 430 (Miss. Ct. App. 2005).

A habeas corpus petition which was filed by a work-releasee who was reincarcerated would be dismissed where the prisoner had been discharged from prison during the pendency of the appeal; nor were the prisoner’s wife or employer entitled to relief under this section. Bradley v. State, 355 So. 2d 675, 1978 Miss. LEXIS 1993 (Miss. 1978).

A defendant having failed to take an appeal from the judgment and sentence under which he stands committed, the habeas corpus court could not, in Mississippi, consider his complaint attacking the irregularities allegedly amounting to want of due process in the proceedings by which he was convicted and sentenced. Harvey v. Mississippi, 340 F.2d 263, 1965 U.S. App. LEXIS 6900 (5th Cir. Miss. 1965).

Where the jail sentence of accused, who had been convicted of two separate charges of trespass and one of assault and battery, was suspended during good behavior, an appeal would not lie from the trial judge’s action revoking the suspension and committing the accused to jail following a finding that accused, without justification, had assaulted another person; neither was the accused entitled to relief by invoking habeas corpus. Blount v. Blount, 231 Miss. 398, 95 So. 2d 545, 96 So. 2d 232, 97 So. 2d 240, 1957 Miss. LEXIS 525, 1957 Miss. LEXIS 526, 1957 Miss. LEXIS 527 (Miss. 1957).

A sheriff can maintain habeas corpus to recover custody of a prisoner under an order of the court having jurisdiction of the offense. Wray v. Kelly, 98 Miss. 172, 53 So. 492, 1910 Miss. LEXIS 49 (Miss. 1910).

A defendant charged with a misdemeanor who has been bound over to the circuit court by a committing magistrate and imprisoned for default in making the required bond cannot maintain a writ of habeas corpus to secure a remand of his case to the magistrate for trial. Ex parte Smith, 79 Miss. 373, 30 So. 710, 1901 Miss. LEXIS 67 (Miss. 1901).

Where a convict sues out a writ and escapes before the hearing, the writ should be dismissed. Hamilton v. Flowers, 57 Miss. 14, 1879 Miss. LEXIS 3 (Miss. 1879).

Persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to a writ of habeas corpus. Ex parte Walker, 53 Miss. 366, 1876 Miss. LEXIS 81 (Miss. 1876).

4. Custody of minors.

In a child custody proceeding brought by the mother pursuant to §93-11-65, the trial court’s error in dismissing the mother’s action was harmless where the court immediately held a full hearing on the father’s petition for a writ of habeas corpus, which hearing was the same as would have been held under the mother’s original suit; the trial court had jurisdiction to hear the mother’s suit alleging a change of circumstances, where the Alabama court that had granted custody to the father had the right to modify the terms of the decree. Further, the trial court had complete jurisdiction to hear a child custody matter in a habeas corpus proceeding under this section. Brashers v. Green, 377 So. 2d 597, 1979 Miss. LEXIS 2523 (Miss. 1979).

Where a mother of a child filed a sworn consent to the adoption of her child but her husband was not made a party to the adoption proceedings nor summoned because he told the attorneys that he was not the father of the child, in view of the presumption the a child born in wedlock is a legitimate child, the husband was a necessary party to the adoption proceedings in order for the court to decree an adoption of the child, and therefore, the decree of adoption was a nullity and could be attacked collaterally in a habeas corpus proceeding. Krohn v. Migues, 274 So. 2d 654, 1973 Miss. LEXIS 1598 (Miss. 1973).

A father, awarded custody of minor children in a divorce action, who subsequently made an arrangement with his former wife to care for the children during the time he was employed in another state, could not thereafter successfully contend in a habeas corpus proceeding that the children were wrongfully withheld from him. Fulton v. Fulton, 218 So. 2d 866, 1969 Miss. LEXIS 1626 (Miss. 1969).

A habeas corpus proceeding is brought in a special court convened to try a single cause, whose powers wholly cease upon rendition of a final judgment. Such court, therefore, may not make a child custody order. Talley v. Womack, 249 Miss. 773, 163 So. 2d 742, 1964 Miss. LEXIS 434 (Miss. 1964).

On rendition of a final judgment the functions and powers of a habeas corpus court wholly cease, and it may not thereafter modify a judgment of a court of a sister state so as to divide the custody of a child between contending parents. Talley v. Womack, 249 Miss. 773, 163 So. 2d 742, 1964 Miss. LEXIS 434 (Miss. 1964).

In a habeas corpus proceeding instituted by a mother in a court other than one which had granted her custody of the children in a divorce proceeding, to obtain custody of the children from a paternal aunt and paternal grandparents, who were not parties to the divorce action, the prior decree of custody was not binding upon proof of circumstances and conditions arising since the date of its rendition, showing that the mother was unfit to exercise such right or had forfeited it. Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

The venue of a habeas corpus proceeding by a mother seeking custody of her children is necessarily in the county where the children are being allegedly unlawfully detained, by the persons not parties to the earlier divorce action, and who were defending against the mother’s petition. Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

In a contest between the paternal and maternal grandmothers over the custody of two children of the ages of 12 and 13 years, where it was shown that the paternal grandmother had made a good mother during the time she had had the care and custody of the children for approximately ten years, and that neither the maternal grandmother nor the mother had contributed anything to the support of the children during this period, and the children testified that they wanted to live with the paternal grandmother, the paternal grandmother was entitled to their custody. Gladney v. Hopkins, 233 Miss. 342, 102 So. 2d 181, 1958 Miss. LEXIS 389 (Miss. 1958).

Where paternal grandparents in whose custody the mother had placed child when mother was required to work to support herself and children, conceded in trial court that father was not necessary party to habeas corpus proceedings brought against them by the mother, the paternal grandparents on appeal could not contend that the father was a necessary party. Newman v. Young, 215 Miss. 467, 61 So. 2d 296, 1952 Miss. LEXIS 587 (Miss. 1952).

The chancery court in granting a divorce is authorized to make such orders touching the care, custody and maintenance of the children of the marriage as may seem equitable and just and where the chancery court makes no order of custody, the county court has jurisdiction to issue writ of habeas corpus and to determine the rightful custody of the minor. Payne v. Payne, 58 So. 2d 377 (Miss. 1952).

Natural parents of adopted child are not in position to make collateral attack by habeas corpus proceedings on adoption decree on ground of fraud when they were parties to petition of adoption and were fully advised of all facts relied upon by adopting parents to obtain decree. Welch v. Welch, 208 Miss. 726, 45 So. 2d 353, 1950 Miss. LEXIS 291 (Miss. 1950).

In habeas corpus suit brought by mother to obtain custody of two children from father, custody having previously been granted mother by decree of different chancery court, habeas corpus proceeding is not available to father as a device to amend existing decree. Hinman v. Craft, 204 Miss. 568, 37 So. 2d 770, 1948 Miss. LEXIS 390 (Miss. 1948).

Maternal grandparents were entitled to retain custody, until further order of court, of eleven months’ old child whose mother had died and whose father was in the army, as against the paternal grandparents on father’s application, where the child was sick and had lived all his life with the maternal grandparents who had done everything in their power to conserve his well-being. Clark v. Davis, 197 Miss. 135, 19 So. 2d 500, 1944 Miss. LEXIS 283 (Miss. 1944).

On death of father, mother has right to custody of her child as against any other person unless she has forfeited her right by abandonment or immoral conduct. Stegall v. Stegall, 151 Miss. 875, 119 So. 802, 1929 Miss. LEXIS 249 (Miss. 1929).

In a contest between mother and father as to the custody of a child, the welfare of the child is the paramount consideration of the court. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, 1920 Miss. LEXIS 481 (Miss. 1920).

An instance where the mother is entitled to custody of her child in preference to the child’s grandmother. Kinnaird v. Lowry, 102 Miss. 557, 59 So. 843, 1912 Miss. LEXIS 88 (Miss. 1912).

Where neither parent was shown fit to have custody of two-year-old child after divorce the court property awarded temporary custody to the mother. O'Neal v. O'Neal, 95 Miss. 415, 48 So. 623, 1909 Miss. LEXIS 232 (Miss. 1909).

On habeas corpus by a father for his child in the custody of collateral relatives, it will be presumed to be for the best interest of the child to be with the father unless his unfitness or abandonment of the child be shown. Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 1900 Miss. LEXIS 129 (Miss. 1900).

Where the petition alleges that the rightful custody of certain children is withheld by the defendant from petitioner and the sheriff’s return on the writ of habeas corpus shows that they are not found, the court should not, in their absence, entertain objections to the petition or proceed further with the hearing of the case. A writ should be issued requiring the defendant to produce the children or show that he cannot do so. Board of Sup'rs. v. Leigh, 69 Miss. 754, 13 So. 854, 1892 Miss. LEXIS 51 (Miss. 1892).

Where the board of supervisors makes an order authorizing one of its members to procure a home for certain poor orphans in the county and their custody is withheld from him, he may by habeas corpus obtain the custody of the children that they may be dealt with according to law. Board of Sup'rs. v. Leigh, 69 Miss. 754, 13 So. 854, 1892 Miss. LEXIS 51 (Miss. 1892).

Though the father by abstract right be entitled to the custody of his children, yet such right is modified by the circumstances of each case and the court will be guided by the children’s best interest. McShan v. McShan, 56 Miss. 413, 1879 Miss. LEXIS 139 (Miss. 1879).

A widowed mother is entitled to the custody of her thirteen-year-old son, notwithstanding he prefers remaining with a man of good character to whom his deceased father had contracted him. Moore v. Christian, 56 Miss. 408, 1879 Miss. LEXIS 138 (Miss. 1879).

In such case if the infant’s condition would not be materially improved by the change sought for in the writ, it should be refused. Cocke v. Hannum, 39 Miss. 423, 1860 Miss. LEXIS 71 (Miss. 1860); Maples v. Maples, 49 Miss. 393, 1873 Miss. LEXIS 128 (Miss. 1873), overruled, Moore v. Christian, 56 Miss. 408, 1879 Miss. LEXIS 138 (Miss. 1879).

On a writ by a guardian for the ward who has been forcibly taken from him by the mother if it appear that the ward’s interest and inclinations would be consulted by remaining with the mother, the court can rightfully refuse to restore the ward though the guardian have not abused the trust and be competent. Foster v. Alston, 7 Miss. 406, 1842 Miss. LEXIS 58 (Miss. 1842).

5. Custody of lunatics and other incompetents.

Sheriff of the county could not recover custody of one adjudged to be insane and committed to the care of the superintendent of the state insane hospital upon a capias for the arrest of such lunatic who was indicted for murder after his commitment to the insane hospital. Mabry v. Hoye, 124 Miss. 144, 87 So. 4, 1920 Miss. LEXIS 536 (Miss. 1920).

6. To obtain bail.

Petition for habeas corpus challenged the denial of bail for petitioner’s capital murder charge, but failed to challenge the detention for conspiracy to commit murder; because he was legally detained without bail on the conspiracy charge because he was a danger to his intended victim, Miss. Const. art. 3, § 29, cl. 3, he was not entitled to relief. Smith v. Banks, 134 So.3d 715, 2014 Miss. LEXIS 67 (Miss. 2014).

One who has been denied bail may seek his or her liberty via habeas corpus. There is nothing in the Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.), §99-35-115, Miss. Sup. Ct. R. 9 or Unif. Crim. R. Cir. Ct. Prac. 7.02 which purports to suspend this right nor could the right ever be suspended except in the limited circumstance provided for by the constitution. Although purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post-conviction collateral relief sense, is arguably “post-conviction habeas corpus renamed,” matters of appeal may appropriately be addressed through true habeas corpus actions; bail pending appeal via habeas corpus is incident to the direct review of a conviction or sentence and, therefore, is not affected, prohibited or otherwise governed by the Uniform Post-Conviction Collateral Relief Act. Habeas corpus is one way of seeking liberty following conviction and pending appeal, and statutory and uniform rule procedure another, although the standards for granting or denying bail remain the same in either situation. Walker v. State, 555 So. 2d 738, 1990 Miss. LEXIS 40 (Miss. 1990).

In habeas corpus to obtain bail of relator the state is a real party in interest and can appeal. State v. Gordon, 105 Miss. 454, 62 So. 431, 1913 Miss. LEXIS 231 (Miss. 1913).

In capital offenses where the proof leaves no reasonable doubt as to the guilt of the prisoner, bail as a matter of right is denied by law and can be rightfully granted only in exceptional and extraordinary circumstances such as protracted or unusual delay on the part of the state in bringing the prisoner to trial, or such as are likely to seriously or fatally affect the health of the prisoner by reason of imprisonment and the denial of bail. Ex parte Hamilton, 65 Miss. 147, 3 So. 241, 1887 Miss. LEXIS 26 (Miss. 1887).

Where there is a well-founded doubt of the guilt of a prisoner it cannot be said that the “proof is evident or that the presumption great” of his guilt, and where upon the evidence there is a probability of the prisoner’s innocence there must be a reasonable doubt of his guilt. Ex parte Hamilton, 65 Miss. 147, 3 So. 241, 1887 Miss. LEXIS 26 (Miss. 1887).

7. Grounds for habeas corpus.

Trial court did not err by treating an inmate’s writ of habeas corpus as a petition for post-conviction relief, as a habeas corpus writ was available only to protest a constitutionally-recognized liberty interest, and the interests of a person in the intensive supervision program did not rise to the level of constitutionally-cognized liberty interests. Moore v. Miss. Dep't of Corr., 936 So. 2d 941, 2005 Miss. App. LEXIS 973 (Miss. Ct. App. 2005), cert. denied, 2006 Miss. LEXIS 560 (Miss. Aug. 24, 2006).

Inmate’s complaint filed with the circuit court for a review of the parole board’s determinations was properly dismissed because the circuit court did not have the jurisdiction to grant or deny parole. Further, while the inmate had entitled his petition a habeas corpus action, because the parole board had complete discretion to grant or deny parole, the inmate failed to state a claim that would have required an evidentiary hearing. Johnson v. Miller, 919 So. 2d 273, 2005 Miss. App. LEXIS 430 (Miss. Ct. App. 2005).

Issuance of writ in habeas corpus proceeding on grounds that defendant-petitioner had been denied right to appeal, was erroneous. State v. Ridinger, 279 So. 2d 618, 1973 Miss. LEXIS 1480 (Miss. 1973), but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A writ of habeas corpus is not a proper proceeding to test the sufficiency of the evidence to support an otherwise valid order revoking a suspension of sentence. State v. Nicholson, 286 So. 2d 820, 1973 Miss. LEXIS 1323 (Miss. 1973).

Habeas corpus proceedings cannot be used as a vehicle to appeal a case to the Supreme Court after time for an appeal has expired, unless the sentence is void on its face. Royalty v. McAdory, 278 So. 2d 464, 1973 Miss. LEXIS 1450 (Miss. 1973).

Where the judgment by which a person is confined is void, a writ of habeas corpus will issue to release such person. Krohn v. Migues, 274 So. 2d 654, 1973 Miss. LEXIS 1598 (Miss. 1973).

Only such defects as may appear on the face of the judgment may be made the basis of an attack by habeas corpus under the laws of Mississippi. Harvey v. Mississippi, 340 F.2d 263, 1965 U.S. App. LEXIS 6900 (5th Cir. Miss. 1965).

The writ may be invoked for the purpose of determining the legality of a revocation of a suspension of sentence. Jackson v. Waller, 248 Miss. 166, 156 So. 2d 594, 1963 Miss. LEXIS 388, 1964 Miss. LEXIS 265 (Miss. 1963), modified, 248 Miss. 172, 160 So. 2d 184 (Miss. 1964).

Persons arrested for violating ordinances by parading without a permit, in an anti-segregation demonstration, held not entitled to habeas corpus in federal court on ground that mass arrests had so loaded state courts as to deprive them of an adequate remedy under state law. Brown v. Rayfield, 320 F.2d 96, 1963 U.S. App. LEXIS 4762 (5th Cir. Miss.), cert. denied, 375 U.S. 902, 84 S. Ct. 191, 11 L. Ed. 2d 143, 1963 U.S. LEXIS 255 (U.S. 1963).

That one convicted on a plea of guilty may not appeal does not entitle him to habeas corpus upon the ground that the plea was fraudulently obtained; his remedy is by writ of coram nobis. Rogers v. Jones, 240 Miss. 610, 128 So. 2d 547, 1961 Miss. LEXIS 491 (Miss. 1961).

Aggrieved party may resort to habeas corpus to review judgment or proceedings void on their face and subject to collateral attack. Kelly v. Douglas, 164 Miss. 153, 144 So. 237, 1932 Miss. LEXIS 238 (Miss. 1932).

Order of the court setting aside verdict of acquittal and remanding accused into custody was beyond its jurisdiction, depriving person of liberty, and relief by habeas corpus was proper. State v. Chambliss, 142 Miss. 256, 107 So. 200, 1926 Miss. LEXIS 62 (Miss. 1926).

An erroneous judgment of the court will not entitle the defendant to discharge under habeas corpus. Ex parte Burden, 92 Miss. 14, 45 So. 1, 1907 Miss. LEXIS 5 (Miss. 1907).

Accused, convicted on affidavit charging no crime, is entitled to be discharged on a writ of habeas corpus. Ex parte Weems, 96 Miss. 635, 51 So. 2, 1910 Miss. LEXIS 157 (Miss. 1910); Ex parte Harris, 85 Miss. 4, 37 So. 505, 1904 Miss. LEXIS 103 (Miss. 1904).

A defendant who has been convicted of a misdemeanor before a justice of the peace will not be released from custody on a writ of habeas corpus because of defects in the affidavit upon which the conviction was based. Ex parte Grubbs, 79 Miss. 358, 30 So. 708, 1901 Miss. LEXIS 64 (Miss. 1901).

Although mere irregularities or reversible errors in the proceedings before the conviction cannot be availed of by habeas corpus, it is otherwise if it be plainly manifest of record that because of radical and incurable defects, the verdict and judgment are nullities. Ex parte Scott, 70 Miss. 247, 11 So. 657, 1892 Miss. LEXIS 65 (Miss. 1892).

While the accused is entitled to relief by habeas corpus as against such a judgment, he will not be discharged, but will be held for another trial on the same indictment. Ex parte Scott, 70 Miss. 247, 11 So. 657, 1892 Miss. LEXIS 65 (Miss. 1892).

The judgment of the circuit court adjudging an indictment sufficient constitutes the law of the case until reversed on appeal. Emanuel v. State, 36 Miss. 627, 1859 Miss. LEXIS 75 (Miss. 1859).

8. Scope of inquiry.

A habeas corpus proceeding is neither a method of appeal, a method of deciding the sufficiency of evidence introduced before a trial court, a postconviction remedy nor a means of obtaining a new trial; and so long as the trial court had jurisdiction under a valid law and rendered a valid judgment, a petitioner is not entitled to release on a writ of habeas corpus. Ray v. State, 229 So. 2d 579, 1969 Miss. LEXIS 1253 (Miss. 1969).

In habeas corpus proceedings to determine the validity to revoke suspension of sentence, where evidence showed a breach of condition of good behavior under which the sentences were suspended, it was not necessary to show guilt beyond a reasonable doubt. Crabb v. State, 55 So. 2d 485 (Miss. 1951).

A writ of habeas corpus cannot be made to perform the functions of a writ of error or an appeal, and a person in custody under a judgment or order of a court of competent jurisdiction cannot obtain his discharge on habeas corpus on account of errors or irregularities, however gross, in the judgment or in the proceedings on which the judgment was founded. Ex parte Chain, 210 Miss. 415, 49 So. 2d 722, 1951 Miss. LEXIS 275 (Miss. 1951).

In reviewing conviction of crime by habeas corpus proceeding, all doubts must be resolved in favor of integrity, competence, and proper performance of their official duties by judge and state attorney. Miller v. State, 207 Miss. 156, 41 So. 2d 375, 1949 Miss. LEXIS 325 (Miss.), cert. denied, 338 U.S. 844, 70 S. Ct. 93, 94 L. Ed. 516, 1949 U.S. LEXIS 1837 (U.S. 1949).

Where child was brought into this state and was in the custody of its father, who asserted that the mother had abandoned the child and that although the mother was awarded custody by a foreign decree of divorce, she had become unfit to have custody, court had jurisdiction to inquire into the merits of the controversy. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99, 1920 Miss. LEXIS 481 (Miss. 1920).

On appeal from requirement of an excessive bail bond, health of defendant and ability to give bond are to be considered. Ex parte Goldsby, 121 Miss. 479, 83 So. 673, 1920 Miss. LEXIS 93 (Miss. 1920).

Guilt or innocence not inquired into. State v. Morgan, 114 Miss. 634, 75 So. 441, 1917 Miss. LEXIS 72 (Miss. 1917).

If it be claimed that the prisoner is detained under a sentence by a justice of the peace, he may deny the existence of the sentence, the jurisdiction of the justice or the constitutionality of the law under which he was prosecuted, but he cannot go into the evidence upon which he was convicted. Donnell v. State, 48 Miss. 661, 1873 Miss. LEXIS 89 (Miss. 1873).

9. Right of appeal.

The state, though not formally designated as such, is always a real party to the record in habeas corpus proceedings, where the petitioner is being held to await trial for an alleged violation of the criminal law, and is therefore entitled to an appeal from a judgment adverse to its interest. State v. Gordon, 105 Miss. 454, 62 So. 431, 1913 Miss. LEXIS 231 (Miss. 1913).

If on the hearing of the writ the relator be awarded his liberty upon the execution of the bond and he give the bond, he is not restrained of his liberty and he cannot appeal. Ex parte Walker, 53 Miss. 366, 1876 Miss. LEXIS 81 (Miss. 1876).

10. Review.

Appellant’s claim for excessive detention while awaiting a revocation hearing was procedurally barred because appellant should have either filed a habeas petition or a motion for relief, and his failure to do so resulted in the issue never being presented to the circuit court and, therefore, it was procedurally barred on appeal. Edmonson v. State, 238 So.3d 1218, 2018 Miss. App. LEXIS 101 (Miss. Ct. App. 2018).

There must be evidence to support the finding of a chancellor on habeas corpus. Ex parte Jackson, 63 So. 571 (Miss. 1913).

A chancellor’s finding on facts in a habeas corpus trial is conclusive on appeal. Robinson v. Yazoo & M. V. R. Co., 58 So. 539 (Miss. 1912); Ex parte Semmes, 60 So. 1016 (Miss. 1913).

The judicial officer who hears an application for bail is the trier of the facts and must determine on his own judgment and conscience whether the evidence under the law warrants bail or not, but in doing so he is governed by the established rules of law and the supreme court, when called upon to review a judgment denying bail, is governed by the same rules of law which control the action of the officer below, giving to his judgment however the prima facie presumption of correctness which attaches to the judgments of all courts of competent jurisdiction. Ex parte Hamilton, 65 Miss. 147, 3 So. 241, 1887 Miss. LEXIS 26 (Miss. 1887).

RESEARCH REFERENCES

ALR.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Habeas corpus on ground of deprivation of right to appeal. 19 A.L.R.2d 789.

Habeas corpus on ground of restoration to sanity of one confined as an incompetent other than in connection with crime. 21 A.L.R.2d 1004.

Habeas corpus to test validity of confinement under statutes relating to sexual psychopaths. 24 A.L.R.2d 376.

Insanity of accused at time of commission of offense [not raised at trial] as ground for habeas corpus after conviction. 29 A.L.R.2d 703.

Waiver or loss of accused’s right to speedy trial as affecting right to habeas corpus. 57 A.L.R.2d 339.

Right of one at large on bail to writ of habeas corpus. 77 A.L.R.2d 1307.

Parolee’s right to habeas corpus. 92 A.L.R.2d 682.

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 A.L.R.2d 916.

Attack, by petition for writ of habeas corpus, on personal service as having been obtained by fraud or trickery. 98 A.L.R.2d 600.

Child custody provisions of divorce or separation decree as subject to modification on habeas corpus. 4 A.L.R.3d 1277.

Scope and extent, and remedy or sanctions for infringement, of accused’s right to communicate with his attorney. 5 A.L.R.3d 1360.

Anticipatory relief in federal courts against state criminal prosecutions growing out of civil rights activities. 8 A.L.R.3d 301.

Court’s power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child’s support. 17 A.L.R.3d 764.

Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction. 34 A.L.R.3d 16.

When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus – modern cases. 26 A.L.R.4th 455.

Availability of federal habeas corpus relief, under 28 USCS §§ 2241 and 2254, in child custody cases. 49 A.L.R. Fed. 674.

Availability of postconviction relief under 28 USCS § 2254 based on alleged governmental violation of Interstate Agreement on Detainers Act (18 USCS Appx). 63 A.L.R. Fed. 155.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ 11 et seq.

13 Am. Jur. Pl & Pr Forms (Rev), Habeas Corpus, Form 113.4 (Petition or application – By state prisoner – Denial of assistance of counsel).

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

41 Am. Jur. Trials 349, Habeas Corpus: Pretrial Motions.

CJS.

39 C.J.S., Habeas Corpus §§ 13–20, 42–44, 49–54 et seq.

Lawyers’ Edition.

When is person “in custody” in violation of Federal Constitution, so as to be eligible for relief under federal habeas corpus legislation – Supreme Court cases. 104 L. Ed. 2d 1122.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March 1982.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-3. Chapter not to apply in certain cases — service of petition and writ on Attorney General in extradition cases.

Nothing in this chapter shall authorize the discharge of any person convicted of an offense, or charged with an offense committed in any other part of the United States, and who, agreeably to the Constitution of the United States or the laws of the state, ought to be delivered up to the executive power of the state or territory where the offense is charged to have been committed; nor of any person suffering imprisonment under lawful judgment.

This chapter shall not apply to any collateral relief sought by any person following his conviction of a crime. Such relief shall be governed by the procedures prescribed in the Mississippi Uniform Post-Conviction Collateral Relief Act.

Provided, in any suit filed seeking the release of any person being held for extradition to any other part of the United States, its territories or foreign countries or any suit filed hereunder seeking the release of any person ordered extradicted, a copy of the petition and writ shall be served upon the Attorney General not less than three (3) days before the date and time set for hearing thereon.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (15); 1857, ch. 48, art. 3; 1871, § 1397; 1880, § 2520; 1892, § 2227; 1906, § 2446; Hemingway’s 1917, § 2012; 1930, § 1915; 1942, § 2816; Laws, 1966, ch. 365, § 1; Laws, 1984, ch. 378, § 16, eff from and after passage (approved April 17, 1984).

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

2. Validity of judgment.

3. Contempt cases.

4. Extradition proceedings.

5. —Scope of inquiry.

6. Service of notice on attorney general.

1. In general.

One who has been denied bail may seek his or her liberty via habeas corpus. There is nothing in the Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.), §99-35-115, Miss. Sup. Ct. R. 9 or Unif. Crim. R. Cir. Ct. Prac. 7.02 which purports to suspend this right nor could the right ever be suspended except in the limited circumstance provided for by the constitution. Although purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post-conviction collateral relief sense, is arguably “post-conviction habeas corpus renamed,” matters of appeal may appropriately be addressed through true habeas corpus actions; bail pending appeal via habeas corpus is incident to the direct review of a conviction or sentence and, therefore, is not affected, prohibited or otherwise governed by the Uniform Post-Conviction Collateral Relief Act. Habeas corpus is one way of seeking liberty following conviction and pending appeal, and statutory and uniform rule procedure another, although the standards for granting or denying bail remain the same in either situation. Walker v. State, 555 So. 2d 738, 1990 Miss. LEXIS 40 (Miss. 1990).

Habeas corpus will not lie to release a prisoner held under a lawful sentence. Allred v. State, 187 So. 2d 28, 1966 Miss. LEXIS 1340 (Miss. 1966).

That one convicted on a plea of guilty may not appeal does not entitle him to habeas corpus upon the ground that the plea was fraudulently obtained; his remedy is by writ of coram nobis. Rogers v. Jones, 240 Miss. 610, 128 So. 2d 547, 1961 Miss. LEXIS 491 (Miss. 1961).

A writ of habeas corpus cannot be made to perform the functions of a writ of error or an appeal, and a person in custody under a judgment or order of a court of competent jurisdiction cannot obtain his discharge on habeas corpus on account of errors or irregularities, however gross, in the judgment or in the proceedings on which the judgment was founded. Ex parte Chain, 210 Miss. 415, 49 So. 2d 722, 1951 Miss. LEXIS 275 (Miss. 1951).

A defendant charged with a misdemeanor who has been bound over to the circuit court by a committing magistrate and imprisoned for default in making the required bond cannot maintain a writ of habeas corpus to secure a remand of his case to the magistrate for trial. Ex parte Smith, 79 Miss. 373, 30 So. 710, 1901 Miss. LEXIS 67 (Miss. 1901).

A convict held after serving out his term for the cost of his prosecution can be discharged on habeas corpus. Ex parte Meyer, 57 Miss. 85, 1879 Miss. LEXIS 18 (Miss. 1879).

The statute, however, does not contemplate detention of a convict to serve out the costs of his defense. Ex parte Meyer, 57 Miss. 85, 1879 Miss. LEXIS 18 (Miss. 1879).

2. Validity of judgment.

In this state a writ of habeas corpus has the principal function of testing the legality of a petitioner’s detention prior to his conviction, and may be utilized as a post-conviction remedy to release a petitioner from imprisonment only where the petitioner was convicted under an invalid statute or by a court lacking jurisdiction. However, where a petition is filed seeking post-conviction relief, the court should look through the form and to the substance of the petition, and where a case for relief under a writ of error coram nobis is stated, the court should treat it accordingly. Nelson v. Tullos, 323 So. 2d 539, 1975 Miss. LEXIS 1565 (Miss. 1975).

A petitioner is not entitled to be released on a writ of habeas corpus so long as the trial court has jurisdiction under a valid law and renders a valid judgment, and this is true even when the defendant is innocent. Ledbetter v. Bishop, 210 So. 2d 880, 1968 Miss. LEXIS 1531 (Miss. 1968).

Habeas corpus was not available to procure petitioner’s release from penitentiary on ground that his conviction of grand larceny for theft of automobile tires was void because the indictment did not state the value of the property alleged to have been stolen or that it constituted personal property, where these questions were raised for the first time on motion for new trial, and the appeal from conviction was dismissed for lack of prosecution, since the alleged errors, even if sustainable, did not render the conviction void. McLemore v. Love, 197 Miss. 273, 19 So. 2d 828, 1944 Miss. LEXIS 296 (Miss. 1944).

Conviction before a justice, disqualified by interest, held not void and not ground for habeas corpus. Hays v. Barnes, 148 Miss. 599, 114 So. 395, 1927 Miss. LEXIS 51 (Miss. 1927).

A defendant who has been convicted before a justice of the peace will not be released from custody on a writ of habeas corpus because of defects in the affidavit upon which he was convicted. Ex parte Grubbs, 79 Miss. 358, 30 So. 708, 1901 Miss. LEXIS 64 (Miss. 1901).

A convict is entitled to be discharged from the judgment if the record of his conviction be so defective as to render his sentence a nullity. Ex parte Phillips, 57 Miss. 357, 1879 Miss. LEXIS 89 (Miss. 1879).

3. Contempt cases.

A judge cannot, on habeas corpus, discharge a prisoner who is in custody for contempt of another court. Ex parte Adams, 25 Miss. 883, 1853 Miss. LEXIS 35 (Miss. 1853); Shattuck v. State, 51 Miss. 50, 1875 Miss. LEXIS 10 (Miss. 1875).

4. Extradition proceedings.

State statutes and decisions relating to habeas corpus and extradition are not applicable to interstate extradition except to extent that they may be in aid of, and not inconsistent with, the constitution and laws of United States on the question. Bishop v. Jones, 207 Miss. 438, 42 So. 2d 421 (1949).

Conclusion of governor of asylum state as to existence of jurisdictional prerequisites to surrender of an alleged offender to the authorities of the demanding state, that he has been furnished with a copy of an indictment found by a grand jury or an affidavit made before a magistrate of the demanding state or territory, charging the person demanded with the commission of the alleged crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, and that he is satisfied that such alleged offender is a fugitive from justice of the demanding state, is subject to judicial review on habeas corpus. Bishop v. Jones, 207 Miss. 438, 42 So. 2d 421 (1949).

Decree of court in habeas corpus proceedings adjudging extradition proceedings to be insufficient both in form and substance but providing for discharge of relator unless within a stated period of time the sheriff should be served with a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings, violated accused’s constitutional right to have the trial judge as a judicial officer not only to pass upon the sufficiency of the extradition proceedings then before the court but also the sufficiency of any such papers that were to be thereafter supplied in their stead. Bishop v. Jones, 207 Miss. 438, 42 So. 2d 421 (1949).

The issuance of a warrant makes a prima facie case in an extradition proceeding under habeas corpus. Ex parte Walters, 106 Miss. 439, 64 So. 2, 1913 Miss. LEXIS 151 (Miss. 1913).

On habeas corpus to test the validity of an arrest and imprisonment under extradition proceedings, petitioner is not entitled to be liberated on bail, although the offense charged is bailable in the jurisdiction where it was committed. Ex parte Edwards, 91 Miss. 621, 44 So. 827, 1907 Miss. LEXIS 153 (Miss. 1907).

A person indicted for murder in another state, in which such offense is not bailable, and who has been arrested in this state on a warrant issued by the governor upon requisition from the chief executive of such other state, is not entitled to bail pending his appeal to the supreme court from a judgment remanding him to custody in a habeas corpus proceeding based upon the ground that he is not a fugitive from justice and was not in such other state when the crime was committed. Ex parte Wall, 84 Miss. 783, 38 So. 628, 1904 Miss. LEXIS 101 (Miss. 1904).

On question of right to bail, distinction pointed out between cases of arrest and examination for commitment to await extradition, demand and warrant on the one hand, and cases arising on habeas corpus after arrest on execution warrant for extradition on the other. Ex parte Wall, 84 Miss. 783, 38 So. 628, 1904 Miss. LEXIS 101 (Miss. 1904).

Upon habeas corpus, it is not cause of exception to the officer’s return showing that the relator is held upon the warrant of the governor of this state for extradition for crime committed in another state, that it does not show an affidavit or indictment emanating from the authorities of the other state. The warrant of the governor is prima facie correctly issued and the return to be prima facie sufficient need not show anything more. Ex parte Devine, 74 Miss. 715, 22 So. 3, 1897 Miss. LEXIS 73 (Miss. 1897), limited, Ex parte Edwards, 91 Miss. 621, 44 So. 827, 1907 Miss. LEXIS 153 (Miss. 1907); Ex parte Scott, 70 Miss. 247, 11 So. 657, 1892 Miss. LEXIS 65 (Miss. 1892).

5. —Scope of inquiry.

Upon judicial review on habeas corpus with respect to extradition of an alleged fugitive from justice of the demanding state, relator may introduce proof to show that he was not in the demanding state at the time of the commission of the alleged crime, and that he could not therefore be a fugitive from the justice of such state. Bishop v. Jones, 207 Miss. 438, 42 So. 2d 421 (1949).

If the governor’s warrant of extradition and all of the requisition papers are sufficient in form and substance they may be introduced at the hearing on habeas corpus to constitute a prima facie right on the part of the respondent to surrender the alleged defendant to the demanding state, but relator may nevertheless introduce proof before the court where the habeas corpus petition is being heard to show that he was not in the demanding state at the time of the commission of the alleged crime. Bishop v. Jones, 207 Miss. 438, 42 So. 2d 421 (1949).

A defense on the merits of the case is not available under extradition proceedings. Ex parte Edwards, 91 Miss. 621, 44 So. 827, 1907 Miss. LEXIS 153 (Miss. 1907).

Where relator is arrested for crime committed in another state upon the warrant of the governor of this state authorizing extradition, the guilt or innocence of the relator cannot be inquired into on habeas corpus in this state. Ex parte Devine, 74 Miss. 715, 22 So. 3, 1897 Miss. LEXIS 73 (Miss. 1897), limited, Ex parte Edwards, 91 Miss. 621, 44 So. 827, 1907 Miss. LEXIS 153 (Miss. 1907).

6. Service of notice on attorney general.

When it is brought to the attention of the judge in a habeas corpus court that the attorney general has not been served with notice in accordance with Code 1942, § 2816, he may issue a temporary order continuing the hearing until the attorney general of Mississippi has been given the notice required by this section. Corkern v. State, 269 So. 2d 630, 1972 Miss. LEXIS 1226 (Miss. 1972).

Noncompliance with the requirement that the attorney general be given notice as required by Code 1942, § 2816 does not deprive the judges named in Code 1942, § 2818 of jurisdiction to issue writs and hear habeas corpus proceedings, for the only jurisdictional requirements are that a proper petition be presented to a qualified judge, and when the judge issues a habeas corpus writ it must be served upon the party defendant who is said to be unlawfully holding a prisoner, or depriving a person of his liberty. Corkern v. State, 269 So. 2d 630, 1972 Miss. LEXIS 1226 (Miss. 1972).

RESEARCH REFERENCES

ALR.

Right of one at large on bail to writ of habeas corpus. 77 A.L.R.2d 1307.

Parolee’s right to habeas corpus. 92 A.L.R.2d 682.

Right of prisoner held under extradition warrant to raise question of identity in habeas corpus proceeding. 93 A.L.R.2d 916.

When is a person in custody of governmental authorities for purposes of exercise of state remedy of habeas corpus – modern cases. 26 A.L.R.4th 455.

Am. Jur.

41 Am. Jur. Trials 349, Habeas Corpus: Pretrial Motions.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-5. Relator not discharged on account of defective proceedings.

If it appear on the trial of any habeas corpus that the relator is held by virtue of proceedings against him for crime which are invalid, the judge shall not discharge the relator because thereof, but shall investigate the facts; and if it be found that he ought to be held for any crime alleged against him, the judge shall not discharge him, but shall commit him or require bail, according to the nature of the case.

HISTORY: Codes, 1892, § 2228; 1906, § 2447; Hemingway’s 1917, § 2013; 1930, § 1916; 1942, § 2817.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Regardless of any constitutional rights that may have been violated, the habeas corpus court could not release the prisoner from his bond to appear in the circuit court and could not enjoin the district attorney from prosecuting the petitioner for the charged offense. Keller v. Romero, 303 So. 2d 481, 1974 Miss. LEXIS 1444 (Miss. 1974).

Executing warrant for extradition prima facie evidence of facts recited. Grace v. Dogan, 151 Miss. 267, 117 So. 596, 1928 Miss. LEXIS 303 (Miss. 1928).

In such case, evidence by alleged fugitive from justice of an alibi is not advisable. Grace v. Dogan, 151 Miss. 267, 117 So. 596, 1928 Miss. LEXIS 303 (Miss. 1928).

The finding of a justice of the peace acting as conservator of the peace is not conclusive in a habeas corpus proceeding. Ex parte Oliver, 127 Miss. 208, 89 So. 915, 1921 Miss. LEXIS 215 (Miss. 1921).

Notwithstanding the provisions of this section [Code 1942, § 2817], the party having custody of the prisoner must produce a detention warrant showing his authority to detain the prisoner before the court can inquire into whether or not there is a valid and unexecuted sentence outstanding against the prisoner. Ex parte Moody, 104 Miss. 836, 61 So. 741, 1913 Miss. LEXIS 86 (Miss. 1913).

Where the trial court pronounced improper sentence under a lawful conviction on habeas corpus the relator should be remanded for proper sentence. Ex parte Burden, 92 Miss. 14, 45 So. 1, 1907 Miss. LEXIS 5 (Miss. 1907).

The section [Code 1942, § 2817] does not prevent a discharge on habeas corpus of a person in custody where the affidavit under which he is held charges no offense and it does not appear that he has been guilty of any crime. Ex parte Harris, 85 Miss. 4, 37 So. 505, 1904 Miss. LEXIS 103 (Miss. 1904); Ex parte Weems, 96 Miss. 635, 51 So. 2, 1910 Miss. LEXIS 157 (Miss. 1910).

RESEARCH REFERENCES

ALR.

Former jeopardy as ground for habeas corpus. 8 A.L.R.2d 285.

Determination of sufficiency of charge of crime. 40 A.L.R.2d 1151.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies § 34.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-7. By whom granted.

The writ of habeas corpus may be granted by a judge of the Supreme Court, or a judge of the circuit or chancery court, in term time or in vacation, returnable before himself or another judge.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (1); 1857, ch. 48, art. 1; 1871, § 1398; 1880, § 2521; 1892, § 2229; 1906, § 2448; Hemingway’s 1917, § 2014; 1930, § 1917; 1942, § 2818.

Cross References —

Granting of remedial writs by supreme and circuit judges and chancellors, see §9-1-19.

Jurisdiction of Mississippi Supreme Court, see §9-3-9.

Jurisdiction of chancery court in general, see §9-5-81.

General enumeration of subjects of circuit court jurisdiction, see §9-7-81.

Power of county court, see §9-9-19.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Noncompliance with the requirement that the attorney general be given notice as required by Code 1942, § 2816 does not deprive the judges named in Code 1942, § 2818 of jurisdiction to issue writs and hear habeas corpus proceedings, for the only jurisdictional requirements are that a proper petition be presented to a qualified judge, and when the judge issues a habeas corpus writ it must be served upon the party defendant who is said to be unlawfully holding a prisoner, or depriving a person of his liberty. Corkern v. State, 269 So. 2d 630, 1972 Miss. LEXIS 1226 (Miss. 1972).

A petition seeking a writ of habeas corpus for the recovery of custody of minor children awarded to petitioner in a divorce action is not a chancery court proceeding and should not be filed in the original divorce case; for a habeas corpus court is a separate court and is to be distinguished from the chancery court or the circuit court; and it is organized when a judge issues an order for a hearing on a writ of habeas corpus, returnable before himself or another judge. Fulton v. Fulton, 218 So. 2d 866, 1969 Miss. LEXIS 1626 (Miss. 1969).

The proper venue for an habeas corpus proceeding by a mother to obtain custody of her children from the father was in the county where the children resided in the custody of the father, rather than in the county where the decree, largely giving custody to the mother, was entered. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

In habeas corpus proceedings by grandmother who had obtained appointment as guardian of orphaned child without notice, evidence sustained award of custody to persons who, having lawfully taken child into their custody and assumed the obligations to her incident to the parental relation, stood in loco parentis to her. Britt v. Allred, 199 Miss. 786, 25 So. 2d 711, 1946 Miss. LEXIS 246 (Miss. 1946).

A county judge, passing upon an application in habeas corpus, acts not as a county court, but with all the power and authority of a circuit judge or chancellor, and an appeal may be taken direct to the supreme court under Code 1942, § 1149. Cole v. Cole, 194 Miss. 292, 12 So. 2d 425, 1943 Miss. LEXIS 71 (Miss. 1943).

Chancellor without authority in habeas corpus proceeding to admit person convicted of felony to bail pending appeal; this power being lodged in circuit and supreme courts and judges thereof. Leggett v. Vannison, 133 Miss. 22, 96 So. 518, 1923 Miss. LEXIS 106 (Miss. 1923).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ 79- 83.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-9. How obtained.

Application for a writ of habeas corpus shall be by petition, in writing, sworn to by the person for whose relief it is intended, or by someone in his behalf, describing where and by whom he is deprived of liberty, and the facts and circumstances of the restraint, with the ground relied on for relief; and the application shall be made to the judge or chancellor of the district in which the relator is imprisoned, unless good cause be shown in the petition to the contrary. However, any petition filed by an inmate of any training school or hospital attacking his commitment for a claimed denial of a fundamental constitutional right under the Constitution of the State of Mississippi or of the United States which would affect his commitment shall be filed in a court of the county from which he was committed. And, if filed in any other court, the judge of that court shall, if he grants the writ, make it returnable to a court of the county from which the relator was committed; and in the case of a person committed by a youth court, not less than five (5) days’ notice prior to hearing shall be given to the county attorney or district attorney of the county of commitment.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (1); 1857, ch. 48, art. 1; 1871, § 1400; 1880, § 2522; 1892, § 2230; 1906, § 2449; Hemingway’s 1917, § 2015; 1930, § 1918; 1942, § 2819; Laws, 1966, ch. 366, § 1; Laws, 1972, ch. 453, § 1; Laws, 1984, ch. 378, § 17, eff from and after passage (approved April 17, 1984).

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Appellant’s claim for excessive detention while awaiting a revocation hearing was procedurally barred because appellant should have either filed a habeas petition or a motion for relief, and his failure to do so resulted in the issue never being presented to the circuit court and, therefore, it was procedurally barred on appeal. Edmonson v. State, 238 So.3d 1218, 2018 Miss. App. LEXIS 101 (Miss. Ct. App. 2018).

Trial court did not err by treating an inmate’s writ of habeas corpus as a petition for post-conviction relief as the writ was not filed in the county where the inmate was detained as required by Miss. Code Ann. §11-43-9. Moore v. Miss. Dep't of Corr., 936 So. 2d 941, 2005 Miss. App. LEXIS 973 (Miss. Ct. App. 2005), cert. denied, 2006 Miss. LEXIS 560 (Miss. Aug. 24, 2006).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

An application for a writ of habeas corpus must be verified. Corkern v. State, 269 So. 2d 630, 1972 Miss. LEXIS 1226 (Miss. 1972).

Where the answer of the attorney general to a letter in the form of a petition for habeas corpus, filed by one who pleaded guilty to a criminal charge in Sharkey County and was being then held in the state penitentiary in Sunflower County, revealed that no petition for habeas corpus had been filed in either Sunflower County or Sharkey County, and where the petition was not verified by oath as required under the section [Code 1942, § 2819], the petition would be dismissed without prejudice. Tucker v. Sneed, 246 So. 2d 736, 1971 Miss. LEXIS 1427 (Miss. 1971).

The proper venue for an habeas corpus proceeding by a mother to obtain custody of her children from the father was in the county where the children resided in the custody of the father, rather than in the county where the decree, largely giving custody to the mother, was entered. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

A petition to the supreme court for a writ of habeas corpus on grounds of illegal confinement is insufficient, in absence of attached affidavit and showing in petition of good cause for failure to apply to a judge or chancellor of district where the petitioner is imprisoned. Wheeler v. State, 219 Miss. 129, 63 So. 2d 517, 1953 Miss. LEXIS 377 (Miss.), cert. denied, 346 U.S. 852, 74 S. Ct. 67, 98 L. Ed. 367, 1953 U.S. LEXIS 1649 (U.S. 1953).

The function of supreme court is to review the lower court’s action in disposing of an application for writ of habeas corpus and the issuance of writ should not be first requested of the supreme court. Wheeler v. State, 219 Miss. 129, 63 So. 2d 517, 1953 Miss. LEXIS 377 (Miss.), cert. denied, 346 U.S. 852, 74 S. Ct. 67, 98 L. Ed. 367, 1953 U.S. LEXIS 1649 (U.S. 1953).

Granting of writ of habeas corpus on application therefor is not mandatory. Lewis v. State, 153 Miss. 759, 121 So. 493, 1929 Miss. LEXIS 79 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Parolee’s right to habeas corpus. 92 A.L.R.2d 682.

When is a person in custody of governmental authorities for purposes of exercise of state remedy of habeas corpus-modern cases. 26 A.L.R.4th 455.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ 88, , 129 et seq.

Application for writ, 13 Am. Jur. Pl & Pr Forms (Rev ed), Habeas Corpus, Forms 21-190.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

CJS.

39 C.J.S., Habeas Corpus §§ 333–335 et seq.

Lawyers’ Edition.

When is person “in custody” in violation of Federal Constitution, so as to be eligible for relief under federal habeas corpus legislation – Supreme Court cases. 104 L. Ed. 2d 1122.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-11. Refusal to grant writ.

If from the showing made by the petition for habeas corpus it be manifest that the person by whom, or on whose behalf, it is presented is not entitled to any relief thereby, the judge or chancellor may refuse to grant the writ, indorsing on the application his reason therefor.

HISTORY: Codes, 1880, § 2536; 1892, § 2231; 1906, § 2450; Hemingway’s 1917, § 2016; 1930, § 1919; 1942, § 2820.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Circuit court was not required to hold an evidentiary hearing before denying appellant’s petition for a writ of habeas corpus because no writ of habeas corpus was granted; neither the statutes nor the Uniform Rules of Circuit and County Court Practice mandate a hearing upon every petition for a writ of habeas corpus, but instead, both contemplate scenarios where the petition would be summarily dismissed on its face. Johnson v. State, 159 So.3d 601, 2014 Miss. App. LEXIS 667 (Miss. Ct. App. 2014).

Habeas corpus is one of the procedures available to test and decide the rightful custody of minors and a Mississippi court on such a petition may conduct a full hearing to determine whether there has been a material change of circumstances and whether for the best interests of a minor child another state’s decree of divorce and custody should be modified. Thus, in a habeas corpus proceeding instituted by a mother who had legal custody of her minor son pursuant to a Louisiana decree, where the son was being held by the father, the chancery court properly conducted a full hearing to determine whether there had been a material change of circumstances affecting the welfare and best interests of the child and properly concluded that conditions in the mother’s home warranted a change of custody from mother to father, thereby in effect modifying the Louisiana decree. Garza v. Shoffner, 386 So. 2d 397, 1980 Miss. LEXIS 2040 (Miss. 1980).

The function of supreme court is to review the lower court’s action in disposing of an application for writ of habeas corpus and the issuance of writ should not be first requested of the supreme court. Wheeler v. State, 219 Miss. 129, 63 So. 2d 517, 1953 Miss. LEXIS 377 (Miss.), cert. denied, 346 U.S. 852, 74 S. Ct. 67, 98 L. Ed. 367, 1953 U.S. LEXIS 1649 (U.S. 1953).

Granting of writ of habeas corpus on application therefor is not mandatory. Lewis v. State, 153 Miss. 759, 121 So. 493, 1929 Miss. LEXIS 79 (Miss. 1929).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ , 31 et seq.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-13. Bail by the way may be required.

Where the application is by or on behalf of one detained on a criminal charge, the judge or chancellor, on granting the writ, may, in his discretion, require a bail bond by or on behalf of the person detained, conditioned that he shall not escape by the way. The judge or chancellor may fix the amount of such bail, and direct who shall approve the bond; but such bail bond shall not operate to discharge the relator from custody. Such bond shall be deposited by the judge or chancellor in the clerk’s office of the court in which the case is triable. If the condition of the bond be broken, the proceedings thereon shall be as in case of other forfeited bonds or recognizances.

HISTORY: Codes, 1880, § 2537; 1892, § 2232; 1906, § 2451; Hemingway’s 1917, § 2017; 1930, § 1920; 1942, § 2821.

Cross References —

Appeal from judgment on habeas corpus, see §11-43-55.

Question of bail, see §§99-5-31 to99-5-35.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

ALR.

Admission of petitioner to bail pending determination of habeas corpus on merits. 56 A.L.R.2d 668.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-Conviction Remedies § 146.

CJS.

39 C.J.S., Habeas Corpus §§ 10, 223, 224, 226, 240 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-15. Writ issued by judge or clerk.

The judge granting the writ may order it to be issued by the Clerk of the Supreme Court, or of any circuit or chancery court, who shall immediately issue it on receiving the order; or, when not convenient to a clerk, the judge himself shall issue the writ. Any judge or chancellor who shall wilfully refuse or neglect to grant, or to issue and try, the writ of habeas corpus, when required by law to do so, shall be guilty of a high misdemeanor in office, and any clerk who shall not, when ordered, immediately issue the writ, and other process, shall be liable, on conviction thereof, to be removed from office; and the judge or clerk shall, in case of such neglect or refusal, be liable, civilly, to the party aggrieved.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (1, 13); 1857, ch. 48, arts. 4, 6; 1871, § 1401; 1880, § 2523; 1892, § 2233; 1906, § 2452; Hemingway’s 1917, § 2018; 1930, § 1921; 1942, § 2822.

Cross References —

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

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ 90, 138 et seq.

CJS.

39 C.J.S., Habeas Corpus §§ 5, 6, 13–20, 42–44, 49–54 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-17. Form and service of writ.

The writ may be in substance, as follows, to wit:

“The State of Mississippi, to : “We command you to have the body of , by you detained, as it is said, before , a judge of our court, at , forthwith (or on a given day), to do and receive what may be then and there considered concerning him. Witness my hand,” etc.

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And it may be served by such person as the judge granting it may direct, or by the sheriff or any constable, and it shall be served by the delivery of a true copy thereof to the person to whom it is directed, if to be found. And if it be directed to a sheriff or other officer who cannot be found, it may be served by leaving a copy with any deputy or servant of the officer to whom it is directed, at the place where the prisoner or other person is detained; and it shall be returned with an indorsement of service as in other cases.

HISTORY: Codes, 1871, § 1402; 1880, § 2524; 1892, § 2234; 1906, § 2453; Hemingway’s 1917, § 2019; 1930, § 1922; 1942, § 2823.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Am. Jur.

Writ, notice, and service, 13 Am. Jur. Pl & Pr Forms (Rev ed), Habeas Corpus, Forms 201-223.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-19. Taking of person in certain cases.

When it shall be shown to the judge to whom application is made for the writ, that there is reasonable ground to apprehend that the person in whose behalf the writ is applied for will be concealed or removed so as not to be brought up with the writ, it shall be the duty of the judge to order or issue the writ directed to the sheriff or other officer or person designated to execute it, commanding him to take the body of the person to be relieved by the writ, and bring him forthwith before the judge, and to summon the person alleged to have illegally detained him; in which case the form of the writ shall be, in substance, as follows, to wit:

“The State of Mississippi. “To the sheriff or any lawful officer of county: “We command you to take and have the body of restrained of his liberty, it is said, by , before , a judge of our court, at , forthwith, to do and receive what shall then be considered; and do you summon the said to appear, then and there to show the cause of detaining said ; and have you then and there this writ, with your proceedings indorsed thereon. Witness my hand,” etc.

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The writ shall be executed according to its tenor and effect, and returned as other writs.

HISTORY: Codes, 1871, § 1403; 1880, § 2525; 1892, § 2235; 1906, § 2454; Hemingway’s 1917, § 2020; 1930, § 1923; 1942, § 2824.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-21. May be served on Sunday.

All writs of habeas corpus may be issued or served on Sunday in case of emergency.

HISTORY: Codes, 1892, § 2236; 1906, § 2455; Hemingway’s 1917, § 2021; 1930, § 1924; 1942, § 2825.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-23. Where and when returnable.

The writ of habeas corpus shall be returnable forthwith, or on a particular day within a reasonable time, and at a place to be named by the judge granting the writ. But when granted by a circuit judge or chancellor, on the application of any person in custody, before conviction upon a criminal charge under the laws of this state, the judge or chancellor shall cause the writ to be made returnable at a convenient place in the county in which the offense is alleged to have been committed, unless so doing will interfere with his holding of a term of court.

HISTORY: Codes, 1871, § 1404; 1880, § 2526; 1892, § 2237; 1906, § 2456; Hemingway’s 1917, § 2022; 1930, § 1925; 1942, § 2826.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 2826] providing that the writ be returnable within the county where the crime was committed unless it interferes with the holding of a term of court by the judge or chancellor granting it, is directory and not jurisdictional and is to be confined to causes in which the merits are to be gone into and witnesses examined as to the legality of the detention. Ex parte Patterson, 71 Miss. 675, 15 So. 794, 1893 Miss. LEXIS 86 (Miss. 1893).

Where one charged with murder is confined in the jail of a different county from that in which the homicide occurred and he resorts to habeas corpus to obtain bail because of ill health, the hearing may, and in case of his dangerous illness should, be in the county of his confinement. Ex parte Patterson, 71 Miss. 675, 15 So. 794, 1893 Miss. LEXIS 86 (Miss. 1893).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-conviction Remedies §§ 91, 141 et seq.

CJS.

39 C.J.S., Habeas Corpus §§ 319, 320, 369 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-25. When person detaining another guilty of crime.

Whenever the judge or chancellor, on issuing a writ of habeas corpus, shall be satisfied, by affidavit or otherwise, that the person unlawfully depriving another of his liberty has committed a crime in connection with such unlawful act, he may embody in the writ a warrant for the arrest of such person and have him brought up for examination at the hearing of the habeas corpus; and being satisfied, on the trial and examination, of the guilt of such person, the judge or chancellor shall commit him, or order his release on bail, to appear before the proper court to answer the charge.

HISTORY: Codes, 1892, § 2238; 1906, § 2457; Hemingway’s 1917, § 2023; 1930, § 1926; 1942, § 2827.

Cross References —

Liability for arrest of innocent person made legally, see §99-3-23.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-27. Production of the body.

Whenever any writ of habeas corpus shall be served upon the sheriff or any other person to whom the same may be directed, or who may be ordered summoned thereby, he shall bring, or permit the officer executing the writ to bring, the body of the prisoner or person detained in custody before the judge who is to try the same, at the time and place designated in the writ, or, in case of the absence of such judge, then before any other judge, and to make return or answer to said writ.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (2); 1857, ch. 48, art. 7; 1871, § 1406; 1880, § 2528; 1892, § 2239; 1906, § 2458; Hemingway’s 1917, § 2024; 1930, § 1927; 1942, § 2828.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Post-Conviction Remedies § 96, 145.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-29. What the return or answer shall contain.

The officer or other person upon whom a writ of habeas corpus shall be served shall state in his return or answer:

First.—Whether he have or have not the party in his custody or under his power or restraint.

Second.—If he have the party in his custody or power, or under his restraint, he shall state the authority and cause of imprisonment or restraint, setting forth the same at large.

Third.—If the party be restrained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return or answer, and the original shall be produced on the hearing.

Fourth.—If the officer or person upon whom the writ is served shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but such person has escaped, or such officer or person has transferred the custody or restraint to another, the return or answer shall state the facts particularly, and, in case of transfer, set forth the time and place, for what cause, and by what authority the transfer took place.

Fifth.—The return must be signed by the officer or person making it, and, except when a sworn public officer shall make return in his official capacity, it shall be verified by his oath.

HISTORY: Codes 1892, § 2240; 1906, § 2459; Hemingway’s 1917, § 2025; 1930, § 1928; 1942, § 2829.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Sufficiency of answer where party is in custody of captain of military company. Birdsong v. Blackman, 127 Miss. 693, 90 So. 441, 1921 Miss. LEXIS 272 (Miss. 1921).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 91, 141 et seq.

Return and other pleadings, 13 Am. Jur. Pl & Pr Forms (Rev ed), Habeas Corpus, Forms 231-262.

CJS.

39 C.J.S., Habeas Corpus §§ 370, 371.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-31. Penalty for disobedience of the writ.

Any person who is duly served with a writ of habeas corpus commanding him to produce the body of any other person in his custody, who shall fail to produce the body of the person before the judge, according to the command of the writ, shall forfeit and pay to the party not so produced the sum of One Thousand Dollars ($1,000.00), to be recovered before any court having jurisdiction, the right to recover which shall not cease by the death of either party. The judge before whom the writ was made returnable may also punish the person failing to obey the command thereof or to perform the duties prescribed, or to obey such order as the judge may make, as for a contempt, and compel obedience by process of attachment or otherwise. Any officer from whom the custody of any person is taken by writ of habeas corpus who shall fail to return the cause of commitment of any prisoner or other person as prescribed, may be punished in like manner.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (3); 1857, ch. 48, art. 8; 1871, § 1407; 1880, § 2529; 1892, § 2241; 1906, § 2460; Hemingway’s 1917, § 2026; 1930, § 1929; 1942, § 2830.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

CJS.

39 C.J.S., Habeas Corpus § 321.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-33. The trial.

The judge or chancellor before whom the prisoner or other person may be brought, shall inquire into the cause of imprisonment or detention, and shall either discharge, commit, admit to bail, or remand the prisoner, or award the custody to the party entitled thereto, as the law and the evidence shall require; and may also award costs and charges, for or against either party, as may seem right. And the clerk of the court in whose office the proceedings may be filed, shall issue execution for the costs and charges so awarded, against the party bound therefor. But the judge may continue the trial from day to day as the case may require.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (4); 1857, ch. 48, art. 10; 1871, § 1049; 1880, § 2530; 1892, § 2242; 1906, § 2461; Hemingway’s 1917, § 2027; 1930, § 1930; 1942, § 2831.

Cross References —

Continuance of action or proceeding where counsel is legislator, see §11-1-9.

County prosecuting attorney’s duty to appear at habeas corpus trials, see §19-23-11.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

2. Custody of minors.

3. Discharge of accused.

4. Admission to bail.

1. In general.

Circuit court was not required to hold an evidentiary hearing before denying appellant’s petition for a writ of habeas corpus because no writ of habeas corpus was granted; neither the statutes nor the Uniform Rules of Circuit and County Court Practice mandate a hearing upon every petition for a writ of habeas corpus, but instead, both contemplate scenarios where the petition would be summarily dismissed on its face. Johnson v. State, 159 So.3d 601, 2014 Miss. App. LEXIS 667 (Miss. Ct. App. 2014).

The remedies contained in this section [Code 1972, §11-43-33] do not include a bar to any further prosecution for the charged offense, and the habeas corpus court could not release the prisoner from his bond to appear in the circuit court and could not enjoin the district attorney from prosecuting the petitioner for the charged offense. Keller v. Romero, 303 So. 2d 481, 1974 Miss. LEXIS 1444 (Miss. 1974).

That sheriff in habeas corpus trial took initiative and introduced evidence first did not affect materiality of evidence so as to preclude conviction for perjury. Slade v. State, 119 So. 355 (Miss. 1928).

2. Custody of minors.

In habeas corpus suit brought by mother to obtain custody of two children from father, custody having previously been granted mother by decree of chancery court, chancery decree was sufficient basis for awarding custody in habeas corpus suit to mother. Hinman v. Craft, 204 Miss. 568, 37 So. 2d 770, 1948 Miss. LEXIS 390 (Miss. 1948).

Only final judgment that can be rendered for custody of child is its liberty or award to person entitled thereto. Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892, 1922 Miss. LEXIS 250 (Miss. 1922).

After judgment awarding custody of infant to parents, court cannot require them to permit child to visit grandparents. Gray v. Gray, 121 Miss. 541, 83 So. 726, 1920 Miss. LEXIS 101 (Miss. 1920).

3. Discharge of accused.

Accused, convicted on an affidavit charging no crime, should have been discharged on writ of habeas corpus. Ex parte Weems, 96 Miss. 635, 51 So. 2, 1910 Miss. LEXIS 157 (Miss. 1910).

4. Admission to bail.

It is not essential on an application for bail by a person who is indicted for murder that all the witnesses whose names are indorsed on the indictment shall be examined. If the judge be led to believe that there is other testimony procurable and important, he should postpone the hearing. Ex parte Floyd, 60 Miss. 913, 1883 Miss. LEXIS 35 (Miss. 1883).

A person discharged on bail will not be considered as restrained of his liberty so as to be entitled to a writ of habeas corpus, and if released on bail on habeas corpus, the supreme court on appeal from that decision cannot discharge him from the bond on grounds that he should have been discharged without bond. Ex parte Walker, 53 Miss. 366, 1876 Miss. LEXIS 81 (Miss. 1876).

The bill of rights makes bail a matter of right for all crimes except capital felony where the “presumption is great or proof evident.” The courts of many of the states hold the indictment for murder as furnishing “the presumption great” and decline to hear testimony to reduce the grade of the crime from murder to manslaughter. Street v. State, 30 Miss. 681 (1856); the practice has been to receive testimony aliunde, Street v. State, 43 Miss. 1, 1870 Miss. LEXIS 1 (Miss. 1870).

RESEARCH REFERENCES

ALR.

Determination of sufficiency of charge of crime. 40 A.L.R.2d 1151.

Admission of petitioner to bail pending determination of habeas corpus on merits. 56 A.L.R.2d 668.

Court’s power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child’s support. 17 A.L.R.3d 764.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies § 40 et seq.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

CJS.

39 C.J.S., Habeas Corpus § 327–332, 415, 416, 421–427, 456, 472–475.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-35. Temporary orders.

The court or judge may make any temporary order in the cause during the progress of the proceedings that may be right and proper, or that justice may require.

HISTORY: Codes, 1892, § 2243; 1906, § 2462; Hemingway’s 1917, § 2028; 1930, § 1931; 1942, § 2832.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. Interstate compact on the placement of children.

As the Department of Human Services was the “sending agency” under the Interstate Compact on the Placement of Children, it had all the powers necessary to effectuate the purpose of the statute, including the power to intervene in a North Carolina lawsuit to bring back to Mississippi, for the purpose of determining custody, a child who had been sent to North Carolina to live with relatives and, therefore, the chancellor could order the department to intervene in the North Carolina lawsuit and return the child to the state of Mississippi so that a full trial on the issue of custody could be had. Oktibbeha County Dep't of Human Servs. v. N. G., 782 So. 2d 1226, 2001 Miss. LEXIS 33 (Miss. 2001).

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-37. Return not conclusive.

The return or answer made to a writ of habeas corpus shall not be conclusive as to the facts therein stated, but evidence may be received to contradict the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (5); 1857, ch. 48, art. 11; 1871, § 1410; 1880, § 2531; 1892, § 2244; 1906, § 2463; Hemingway’s 1917, § 2029; 1930, § 1932; 1942, § 2833.

Cross References —

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Under the Constitution of Mississippi, bail for capital crime is a matter of right if well founded doubt of the prisoner’s guilt be sustained. Ex parte Bridewell, 57 Miss. 39, 1879 Miss. LEXIS 10 (Miss. 1879).

Evidence is not admissible of the guilt or innocence of the relator where he has already been convicted. Donnell v. State, 48 Miss. 661, 1873 Miss. LEXIS 89 (Miss. 1873).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 106 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-39. Witnesses subpoenaed—affidavits of.

The judge or chancellor may issue or order subpoenas for witnesses and compel their attendance, as a circuit court could in term time, and fine witnesses or others for contempt. Whenever the personal attendance of a witness cannot be procured, his affidavit, taken on reasonable notice to the adverse party, may be received in evidence.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (6); 1857, ch. 48, art. 12; 1871, § 1411; 1880, § 2532; 1892, § 2245; 1906, § 2464; Hemingway’s 1917, § 2030; 1930, § 1933; 1942, § 2834.

Cross References —

Subpoena of witnesses generally, see §§13-3-93 et seq.,99-9-11 et seq.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

In a habeas corpus proceeding by a mother against paternal aunt and paternal grandparents seeking custody of two children awarded to the mother by a prior divorce decree, the trial court erred in suppressing affidavits of nonresident witnesses whose personal attendance could not be procured, where the affidavits were taken on notice to the adverse party, and counsel for both sides had examined them. Neal v. Neal, 238 Miss. 572, 119 So. 2d 273, 1960 Miss. LEXIS 440 (Miss. 1960).

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-41. Record of proceedings.

The proceedings and judgment shall in all cases be entered of record. If the trial be in vacation, the proceedings shall be written out and signed by the judge or chancellor and deposited with the clerk of the circuit court of the county in which the habeas corpus is tried, unless the judge shall direct it to be deposited with such clerk of some other county. If either party require it, the evidence shall be made a part of the record by bill of exceptions, as in other cases.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (7); 1857, ch. 48, art. 13; 1871, § 1412; 1880, § 2533; 1892, § 2246; 1906, § 2465; Hemingway’s 1917, § 2031; 1930, § 1934; 1942, § 2835.

Cross References —

Record of trial, see §§9-13-31 et seq.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-43. Conclusiveness of judgment.

The judgment rendered on the trial of any writ of habeas corpus shall be conclusive until reversed, and, whilst so in force, shall be a bar to another habeas corpus in the same cause, or to any other proceedings, to bring the same matter again in question, except by appeal or by action for false imprisonment; nor shall any person so discharged be afterward confined for the same cause, except by a court of competent jurisdiction.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 1 (8); 1857, ch. 48, art. 15; 1871, § 1413; 1880, § 2534; 1892, § 2247; 1906, § 2466; Hemingway’s 1917, § 2032; 1930, § 1935; 1942, § 2836.

Cross References —

Appeals from cases that are returnable at any time, see §11-3-3.

Appeal in habeas corpus cases, see §11-43-53.

Appeal from judgment on habeas corpus, see §11-43-55.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 2836], the remedy of one to whom habeas corpus has been denied is by appeal and not a subsequent petition. Bellew v. Dedeaux, 240 Miss. 79, 126 So. 2d 249, 1961 Miss. LEXIS 433 (Miss. 1961).

Judgment awarding custody of child to person entitled thereto is res judicata of rights of parties as facts then existed. Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892, 1922 Miss. LEXIS 250 (Miss. 1922).

But new evidence of old facts will not do; a new state of case which in and of itself presents a ground for granting bail alone can prevent the bar. Ex parte Nichols, 62 Miss. 158, 1884 Miss. LEXIS 38 (Miss. 1884); Ex parte Hamilton, 65 Miss. 98, 3 So. 68, 1887 Miss. LEXIS 25 (Miss. 1887).

A legislative act making prisoner a competent witness does not give him a right to a new writ when the first was denied before the passage of the act. Ex parte Nichols, 62 Miss. 158, 1884 Miss. LEXIS 38 (Miss. 1884).

The statute does not preclude the issuance of a second writ based upon facts which have occurred since the first hearing. Ex parte Pattison, 56 Miss. 161, 1878 Miss. LEXIS 52 (Miss. 1878); Ex parte Bridewell, 57 Miss. 177, 1879 Miss. LEXIS 41 (Miss. 1879).

A mistrial is not such a fact as will entitle to bail, nor is bad health unless it be shown by the evidence that the confinement will probably produce fatal or serious results. Ex parte Pattison, 56 Miss. 161, 1878 Miss. LEXIS 52 (Miss. 1878).

RESEARCH REFERENCES

ALR.

Abuse of writ as basis for dismissal of state prisoner’s second or successive petition for federal habeas corpus. 60 A.L.R. Fed. 481.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 149 et seq.

Judgment, 13 Am. Jur. Pl & Pr Forms (Rev), Habeas Corpus, Forms 271-302.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-45. Sheriff to attend trial.

The sheriff, when required by the judge or chancellor, shall attend in person, or by deputy, upon the trial of a habeas corpus in his county, to keep order and execute the mandates of the judge or chancellor, and shall be subject to the orders of the judge or chancellor during the trial in vacation in the same manner as in term time. The judge or chancellor trying a habeas corpus in vacation shall have the same power to fine and imprison for contempt as in term time.

HISTORY: Codes, 1871, § 1414: 1880, § 2535; 1892, § 2248; 1906, § 2467; Hemingway’s 1917, § 2033; 1930, § 1936; 1942, § 2837.

Cross References —

Sheriff attending courts and executing orders, see §19-25-35.

Fee allowed sheriff for attendance of prisoner on habeas corpus trial, see §25-7-21.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-47. Costs in certain cases, and security for.

When the application for a writ of habeas corpus is in the nature of a civil action between parties, the law providing for security for costs shall be applicable; and in such cases persons who may produce the body of another, or render other services, may be allowed the same fees as allowed by law to officers for the same services, the costs to be taxed and collected as in other cases.

HISTORY: Codes, 1880, § 2538; 1892, § 2249; 1906, § 2468; Hemingway’s 1917, § 2034; 1930, § 1937; 1942, § 2838.

Cross References —

Deposit for costs being certified on transcript, see §11-51-69.

Costs in criminal prosecutions, see §§99-1-11 et seq.

Deposit for costs in criminal appeals cases, see §99-35-107.

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

Costs in civil actions or suits, see Chapter 53 of this title.

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Am. Jur.

24A Am. Jur. Pl & Pr Forms (Rev), Venue, Form 291.2 (Motion – For change of venue – To county where real property subject to litigation is located).

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-49. Defaulting witness dealt with.

If a witness shall not obey the subpoena served on him in case of habeas corpus, the judge or chancellor may not only issue, or cause the clerk to issue, an attachment for the witness, but shall indorse on the subpoena the default of the witness and a fine therefor, and file it with the other papers in the clerk’s office of the proper circuit court. Scire facias shall issue for the witness, returnable before the court, and proceedings shall be had as provided in case of a defaulting witness in the circuit court.

HISTORY: Codes, 1880, § 2539; 1892, § 2250; 1906, § 2469; Hemingway’s 1917, § 2035; 1930, § 1938; 1942, § 2839.

Cross References —

Attachment of non-appearing subpoenaed witness, see §§13-3-103,99-9-19.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-51. Liabilities and rights of witnesses.

Witnesses in a habeas corpus case shall be subject to the same penalties, and be entitled to the same privileges and compensation, and be paid in the same way, as in other cases. They may prove their attendance before the clerk in whose office the record of the proceeding is filed, and obtain from him a certificate of their attendance and of the compensation to which they are entitled, as in cases in the circuit courts; or the judge trying the case may give the witnesses certificates of their attendance and the compensation to which they are entitled, which shall have the same effect as such certificates in a like case by the clerk.

HISTORY: Codes, 1880, § 2541; 1892, § 2251; 1906, § 2470; Hemingway’s 1917, § 2036; 1930, § 1939; 1942, § 2840.

Cross References —

Witness fees, see §§25-7-47 et seq.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

RESEARCH REFERENCES

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-53. Appeal in habeas corpus.

Any party aggrieved by the judgment on the trial of a habeas corpus, shall have an appeal to the Supreme Court. If any person held in service by this state, or by the United States, should be discharged by any judge in vacation, or any court, on habeas corpus, the Attorney General or any district attorney, or any attorney duly authorized by the United States, may in like manner obtain an appeal to reverse the judgment by which such person was discharged.

HISTORY: Codes, Hutchinson’s 1848, ch. 65, art. 9; 1857, ch. 48, art. 16, 17; 1871, §§ 1415, 1416; 1880, §§ 2312, 2313; 1892, § 35; 1906, § 36; Hemingway’s 1917, § 11; 1930, § 15; 1942, § 1149.

Cross References —

Time for returning appeal in habeas corpus, see §11-3-3.

Appeals in criminal cases, see §§99-35-1 et seq.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

All appeals from a trial of a habeas corpus, whether tried in circuit, chancery, or county court, must be to the Supreme Court. Wilson v. State, 318 So. 2d 889, 1975 Miss. LEXIS 1463 (Miss. 1975).

A county judge, passing upon an application in habeas corpus, acts not as a county court, but with all the power and authority of a circuit judge or chancellor, and an appeal may be taken direct to the supreme court under this section [Code 1942, § 1149]. Cole v. Cole, 194 Miss. 292, 12 So. 2d 425, 1943 Miss. LEXIS 71 (Miss. 1943).

In a proceeding for a writ of habeas corpus to compel the admission of the relator to bail, the sheriff who has the custody of the relator is a “party aggrieved” and entitled to appeal. Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455, 1920 Miss. LEXIS 446 (Miss. 1920).

The state, though not formally designated as such, is always a real party to the record in habeas corpus proceedings where the petitioner is being held to await trial for an alleged violation of the criminal law, and is therefore entitled to appeal from a judgment adverse to its interest. State v. Gordon, 105 Miss. 454, 62 So. 431, 1913 Miss. LEXIS 231 (Miss. 1913).

RESEARCH REFERENCES

ALR.

Habeas corpus on ground of deprivation of right to appeal. 19 A.L.R.2d 789.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 91, 141 et seq.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

CJS.

39 C.J.S., Habeas Corpus §§ 472–509.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

§ 11-43-55. Procedure on appeal from judgment on habeas corpus.

An appeal from a judgment on the trial of a writ of habeas corpus may be had by or in behalf of the person deprived of his liberty on the same terms and conditions as are provided for in criminal cases; but such appeal shall not entitle a party to be discharged on bail in any case held not to be one in which the party is entitled to bail. In all other cases, an appeal from a judgment on trial of a writ of habeas corpus may be had on their terms prescribed for appeals in civil cases, where a supersedeas is not desired.

HISTORY: Codes, 1880, §§ 2337, 2338; 1892, § 63; 1906, § 64; Hemingway’s 1917, § 40; 1930, § 43; 1942, § 1177.

Cross References —

Return-day for appeal in habeas corpus, see §11-3-3.

Requirement for bail in habeas corpus, see §11-43-13.

Conclusiveness of judgment in habeas corpus, see §11-43-43.

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

Seizure of person or property, see Miss. R. Civ. P. 64.

Proceedings pertaining to the writ of habeas corpus, see Miss. R. Civ. P. 81.

Application for post-conviction collateral relief in criminal cases, see Miss. R. App. P. 22.

JUDICIAL DECISIONS

1. In general.

All appeals from a trial of a habeas corpus, whether tried in circuit, chancery, or county court, must be to the Supreme Court. Wilson v. State, 318 So. 2d 889, 1975 Miss. LEXIS 1463 (Miss. 1975).

RESEARCH REFERENCES

ALR.

Habeas corpus on ground of deprivation of right to appeal. 19 A.L.R.2d 789.

Am. Jur.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 91, 141 et seq.

39 Am. Jur. Trials, Historical Aspects and Procedural Limitations of Federal Habeas Corpus, §§ 1 et seq.

CJS.

39 C.J.S., Habeas Corpus §§ 472–509.

Law Reviews.

Habeas corpus: The “Great Writ” in Mississippi state courts. 58 Miss. L. J. 25, Spring, 1988.

Chapter 44. Compensation to Victims of Wrongful Conviction and Imprisonment

§ 11-44-1. Legislative findings and intent.

The Legislature finds that innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and should be compensated. In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the provisions of this chapter that innocent people who are wrongfully convicted be able to receive monetary compensation.

HISTORY: Laws, 2009, ch. 472, § 1, eff from and after July 1, 2009.

Comparable Laws from other States —

Code of Alabama, §29-2-150 et seq.

California Penal Code, § 4900 et seq.

Connecticut Annotated Statutes, §§ 54-102pp, 54-102uu.

Florida Annotated Statutes, § 961.01 et seq.

Texas Civil Practice and Remedies Code, § 103.001 et seq.

Virginia Code Annotated, § 8.01-195.10 et seq.

JUDICIAL DECISIONS

1. In general.

2. Evidence — sufficiency.

1. In general.

In a case in which plaintiff sought compensation for the time that he served in prison because of his criminal convictions for issuing and delivering bad checks, the appellate court found that despite being given ample opportunity to prove his innocence, plaintiff failed to do so. Even though the convictions were reversed, plaintiff was unable to rebut the properly applied statutory presumption of guilt. Higgins v. State, 202 So.3d 1274, 2016 Miss. App. LEXIS 365 (Miss. Ct. App. 2016).

2. Evidence — sufficiency.

In a case in which appellant requested compensation under the Mississippi Wrongful Conviction Act, the trial court’s finding that defendant had failed to show by a preponderance of the evidence that he was wrongfully convicted for failure to register as a sex offender was supported by substantial evidence. Williams v. State, 220 So.3d 243, 2017 Miss. App. LEXIS 280 (Miss. Ct. App. 2017).

§ 11-44-3. Prerequisite for claim for compensation.

  1. In order to present an actionable claim for wrongful conviction and imprisonment under this chapter, a claimant must establish by documentary evidence that:
    1. The claimant has been convicted of one or more felonies and subsequently sentenced to a term of imprisonment and has served all or any part of the sentence;
    2. On grounds not inconsistent with innocence:
      1. The claimant was pardoned for the felony or felonies for which sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or
      2. The judgment of conviction was vacated and/or reversed;
    3. If there was a vacatur or reversal, either the accusatory instrument was dismissed or nol prossed; or if a new trial was held, the defendant was found not guilty;
    4. The claimant’s claim is not time-barred by the provisions of this chapter; and
    5. The claimant did not intentionally waive any appellate or post-conviction remedy otherwise available in order to benefit under this chapter.
  2. The claim shall be verified by the claimant.
  3. If the court finds after reading the claim that the claimant has not demonstrated the foregoing, it shall dismiss the claim, either on its own motion or on the state’s motion. This dismissal shall be without prejudice to allow adequate refiling within ninety (90) days.

HISTORY: Laws, 2009, ch. 472, § 2, eff from and after July 1, 2009.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (1) by substituting “...claim for wrongful conviction and imprisonment under this chapter...” for “...claim for wrongful conviction and imprisonment under this section...” The Joint Committee ratified the correction at its August 16, 2012, meeting.

JUDICIAL DECISIONS

1. Applicability.

2. Relief granted.

3. Relief not granted.

4. Requirements met.

1. Applicability.

Claimant was entitled to compensation for the time which the claimant served under house arrest in Mississippi’s Intensive Supervision Program because the claimant was later was determined to have been wrongfully convicted. Tipton v. State, 150 So.3d 82, 2014 Miss. LEXIS 542 (Miss. 2014).

2. Relief granted.

Requirement that a conviction be vacated on grounds consistent with innocence is most naturally and plainly read to refer to innocence of the felony or felonies referenced in the immediately preceding paragraph, not to some broader notion of “innocence” of any and all related criminal activity, including misdemeanors. Therefore, appellant was entitled to relief because his conviction was vacated on the ground that he was innocent of the sole felony of which he was convicted, and the possession of certain pills constituted a misdemeanor. Moore v. State, 203 So.3d 775, 2016 Miss. App. LEXIS 209 (Miss. Ct. App.), cert. denied, 204 So.3d 290, 2016 Miss. LEXIS 480 (Miss. 2016).

3. Relief not granted.

In a case in which plaintiff sought compensation for the time that he served in prison because of his criminal convictions for issuing and delivering bad checks, the appellate court found that despite being given ample opportunity to prove his innocence, plaintiff failed to do so. Even though the convictions were reversed, plaintiff was unable to rebut the properly applied statutory presumption of guilt. Higgins v. State, 202 So.3d 1274, 2016 Miss. App. LEXIS 365 (Miss. Ct. App. 2016).

4. Requirements met.

Trial court erred in finding that defendant failed to establish his innocence on the basis that the order passing to inactive files was neither a dismissal nor a nol pross because the offense for which he was convicted and sentenced, accessory after the fact, was not a lesser-included offense of burglary of building; thus, there was no indictment for the accessory after the fact offense for which defendant was convicted and sentenced to dismiss, nol pross, or pass to the files. Hall v. State, 187 So.3d 133, 2016 Miss. LEXIS 123 (Miss. 2016).

§ 11-44-5. Jurisdiction of claims for wrongful conviction and imprisonment.

Jurisdiction of all claims of wrongful conviction and imprisonment brought under this chapter shall lie in the circuit court of the county in which the claimant was convicted. The respondent will be the State of Mississippi, which will be represented by the Attorney General’s office.

HISTORY: Laws, 2009, ch. 472, § 3, eff from and after July 1, 2009.

§ 11-44-7. Determination of eligibility for compensation; award of compensation.

  1. In order to obtain a judgment under this chapter, a claimant must prove by a preponderance of the evidence that:
    1. He was convicted of one or more felonies and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and
      1. He has been pardoned for the felony or felonies for which he was sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or
      2. His judgment of conviction was reversed or vacated; and

      1. The accusatory instrument was dismissed or nol prossed; or

      2. If a new trial was ordered, he was found not guilty at the new trial; and

    2. He did not commit the felony or felonies for which he was sentenced and which are the grounds for the complaint, or the acts or omissions for which he was sentenced did not constitute a felony; and
    3. He did not commit or suborn perjury, or fabricate evidence to bring about his conviction.
  2. If the court finds that the claimant was wrongfully convicted and incarcerated pursuant to subsection (1) of this section, the court shall award:
    1. Fifty Thousand Dollars ($50,000.00) for each year of incarceration regardless of the number of felonies for which a claimant was convicted, but the total amount for each claimant shall not exceed Five Hundred Thousand Dollars ($500,000.00). There shall be no compensation for any preindictment detention. This award shall be paid to the claimant in installments of Fifty Thousand Dollars ($50,000.00) per year until the award is fully paid. The state may purchase an annuity to satisfy this obligation.
    2. Reasonable attorney’s fees for bringing a claim under this chapter calculated at ten percent (10%) of the amount awarded under paragraph (a) of this subsection for preparing and filing the claim, twenty percent (20%) for litigating the claim if it is contested by the Attorney General, and twenty-five percent (25%) if the claim is appealed, plus expenses. These fees shall not be deducted from the compensation due the claimant, nor is counsel entitled to receive additional fees from the client for a claim under this section.
  3. The award shall not be subject to:
    1. Any cap applicable to private parties in civil lawsuits;
    2. Any taxes, except that those portions of the judgment awarded as attorney’s fees for bringing a claim under this chapter shall be taxable as income to the attorney; or
    3. Treatment as gross income to a claimant under the provisions of Title 27, Chapter 7, Mississippi Code of 1972.
  4. A claimant may choose to pursue a claim under this chapter in lieu of pursuing a claim against the State of Mississippi or a political subdivision thereof under the Mississippi Tort Claims Act, Section 11-46-1 et seq., Mississippi Code of 1972. Any claimant who obtains an award under this chapter may not obtain an award by reason of the same subject against the State of Mississippi or a political subdivision thereof under the provisions of the Mississippi Tort Claims Act, Section 11-46-1 et seq., Mississippi Code of 1972.
  5. The immunity of the State of Mississippi and any political subdivision thereof is hereby waived with respect to the claims described in this chapter and within the limits prescribed by this chapter.

HISTORY: Laws, 2009, ch. 472, § 4, eff from and after July 1, 2009.

JUDICIAL DECISIONS

1. Applicability.

2. Conviction held proper.

3. Evidence; admissibility.

4. Evidence; sufficiency.

5. No right to jury trial.

6. Relief granted.

7. Requirements met.

8. Attorney’s fees

1. Applicability.

Trial court erred in granting summary judgment to the State in a former inmate’s action for compensation for the years he spent in custody because the Wrongful Conviction and Imprisonment Act required an element of intent to fabricate evidence, an issue of material fact remained as to the former inmate’s intent to bring about his conviction when fabricating evidence where he testified that, being 13-years old at the time, he confessed with the intent to help his sister and not to fabricate evidence or be incarcerated, and although the Act was completely silent as to whether a jury trial could be, and the right to a jury trial was unquestionably the former inmate’s right. Edmonds v. State, 234 So.3d 286, 2017 Miss. LEXIS 269 (Miss. 2017)

Claimant was entitled to compensation for the time which the claimant served under house arrest in Mississippi’s Intensive Supervision Program because the claimant was later was determined to have been wrongfully convicted. Tipton v. State, 150 So.3d 82, 2014 Miss. LEXIS 542 (Miss. 2014).

2. Conviction held proper.

Defendant failed to prove by a preponderance of the evidence that he was actually innocent of possessing marijuana with intent to distribute, and thus the denial of his claim for compensation under the wrongful-conviction and restitution statute was proper; he admitted that he was voluntarily in the home where marijuana was actually being cut and bagged for distribution, a detective testified that it appeared that defendant had either placed a package of marijuana in a bowl or he was reaching for a package, and the trial court found the detective credible, and thus defendant failed to show that he did not constructively possess the marijuana found in the home. Martin v. State, 221 So.3d 374, 2016 Miss. App. LEXIS 721 (Miss. Ct. App. 2016), cert. denied, 220 So.3d 977, 2017 Miss. LEXIS 260 (Miss. 2017).

Trial court properly ruled in favor of the State in a former prisoner’s action seeking compensation for wrongful conviction and imprisonment under the Mississippi Wrongful Conviction Act because substantial evidence supported the findings that the former prisoner intentionally set the fire that led to his incarceration and that he failed to prove the absence of malice; the former prisoner’s narrative varied between the civil and criminal trials, and a witness testified to establish his intent. Isaac v. State, 187 So.3d 1009, 2016 Miss. LEXIS 140 (Miss. 2016).

Trial court properly ruled in favor of the State in a former prisoner’s action seeking compensation for wrongful conviction and imprisonment under the Mississippi Wrongful Conviction Act because it did not err in failing to explicitly discuss the malice element of arson; the trial court clearly determined that the former prisoner intentionally set a fire and that he failed to prove that he did not maliciously set the fire. Isaac v. State, 187 So.3d 1009, 2016 Miss. LEXIS 140 (Miss. 2016).

Appellant’s suit against the State for wrongful conviction and imprisonment for possession of a firearm by a convicted felon was properly dismissed. His claim that the firearm was inoperable was unavailing because he offered no evidence that it could not be readily converted to expel a projectile, and Miss. Code Ann. §97-37-5(1) did not require the State to prove that it was operable at the time of his arrest. Hymes v. State, 121 So.3d 938, 2013 Miss. App. LEXIS 272 (Miss. Ct. App. 2013), overruled in part, Edmonds v. State, 234 So.3d 286, 2017 Miss. LEXIS 269 (Miss. 2017).

3. Evidence; admissibility.

Appellant claimed that in his wrongful conviction and imprisonment suit, the trial court erred in admitting his co-defendant’s prior testimony under Miss. R. Evid. 804(b)(1), because appellant’s counsel in the criminal trial was ineffective in cross-examining that witness. This claim failed because appellant, in his criminal appeal based on ineffective assistance, never objected to his attorney’s cross-examination of this witness. Hymes v. State, 121 So.3d 938, 2013 Miss. App. LEXIS 272 (Miss. Ct. App. 2013), overruled in part, Edmonds v. State, 234 So.3d 286, 2017 Miss. LEXIS 269 (Miss. 2017).

4. Evidence; sufficiency.

In a case in which appellant requested compensation under the Mississippi Wrongful Conviction Act, the trial court’s finding that defendant had failed to show by a preponderance of the evidence that he was wrongfully convicted for failure to register as a sex offender was supported by substantial evidence. Williams v. State, 220 So.3d 243, 2017 Miss. App. LEXIS 280 (Miss. Ct. App. 2017).

Appellant’s suit against the State alleging wrongful conviction and imprisonment was properly dismissed because he failed to present sufficient evidence to demonstrate that he did not constructively possess any of the marijuana recovered from his co-defendant’s vehicle. Hymes v. State, 121 So.3d 938, 2013 Miss. App. LEXIS 272 (Miss. Ct. App. 2013), overruled in part, Edmonds v. State, 234 So.3d 286, 2017 Miss. LEXIS 269 (Miss. 2017).

In a case in which plaintiff sought compensation for the time that he served in prison because of his criminal convictions for issuing and delivering bad checks, it was plaintiff’s duty to disprove every element of the crime for which he was charged and convicted. Despite being given ample opportunity to prove his innocence, plaintiff failed to do so. Higgins v. State, 202 So.3d 1274, 2016 Miss. App. LEXIS 365 (Miss. Ct. App. 2016).

5. No right to jury trial.

Appellant was not entitled to a jury trial in his suit against the State alleging wrongful conviction and imprisonment, because the right to a jury trial under Miss. Const. art. III, § 31 applies only to those cases in which a jury trial was necessary at common law, and at common law, sovereign immunity prevented citizens from suing the State. Hymes v. State, 121 So.3d 938, 2013 Miss. App. LEXIS 272 (Miss. Ct. App. 2013), overruled in part, Edmonds v. State, 234 So.3d 286, 2017 Miss. LEXIS 269 (Miss. 2017).

6. Relief granted.

Requirement that a conviction be vacated on grounds consistent with innocence is most naturally and plainly read to refer to innocence of the felony or felonies referenced in the immediately preceding paragraph, not to some broader notion of “innocence” of any and all related criminal activity, including misdemeanors. Therefore, appellant was entitled to relief because his conviction was vacated on the ground that he was innocent of the sole felony of which he was convicted, and the possession of certain pills constituted a misdemeanor. Moore v. State, 203 So.3d 775, 2016 Miss. App. LEXIS 209 (Miss. Ct. App.), cert. denied, 204 So.3d 290, 2016 Miss. LEXIS 480 (Miss. 2016).

7. Requirements met.

Use of the word “if” to create conditional clauses, such as, “if the claim is appealed,” along with the lack of any other potentially additive language, reflects the Legislature’s intent to use “and” to connect alternatives rather than aggregate numbers; in other words, the word “and” creates a sliding scale for calculating the fee award, and as a result, the plain language of the statute does not require the percentages to be added together if the subsequent conditions are met. Hall v. State, 241 So.3d 629, 2018 Miss. LEXIS 50 (Miss. 2018).

Trial court erred in finding that defendant failed to establish his innocence on the basis that the order passing to inactive files was neither a dismissal nor a nol pross because the offense for which he was convicted and sentenced, accessory after the fact, was not a lesser-included offense of burglary of building; thus, there was no indictment for the accessory after the fact offense for which defendant was convicted and sentenced to dismiss, nol pross, or pass to the files. Hall v. State, 187 So.3d 133, 2016 Miss. LEXIS 123 (Miss. 2016).

8. Attorney’s fees

Trial court properly calculated an attorney’s fees award as 25 percent of the amount awarded to an inmate’s attorneys; the statute creates a sliding scale with increased percentages at each stage of the case (i.e., when the claim is filed, litigated, and appealed), and a plain reading of the statute does not aggregate those percentages for calculating the attorney’s fee award. Hall v. State, 241 So.3d 629, 2018 Miss. LEXIS 50 (Miss. 2018).

§ 11-44-9. Statute of limitations on commencement of action for compensation.

  1. An action for compensation brought by a wrongfully convicted person under the provisions of this chapter shall be commenced within three (3) years after either the grant of a pardon or the grant of judicial relief and satisfaction of other conditions described in Section 11-44-3(1); provided, however, that any action by the state challenging or appealing the grant of said judicial relief shall toll the three-year period. Persons convicted, incarcerated and released from custody prior to July 1, 2009, shall commence an action under this chapter not later than June 30, 2012.
  2. Notwithstanding any other provision of law, failure to file any applicable Notice of Claim shall not bar filing of a claim under this chapter.

HISTORY: Laws, 2009, ch. 472, § 5, eff from and after July 1, 2009.

§ 11-44-11. Appeal of claim of wrongful conviction and imprisonment decision.

Any party aggrieved by a decision as to a claim brought under this chapter is entitled to appeal the decision as in other civil cases.

HISTORY: Laws, 2009, ch. 472, § 6, eff from and after July 1, 2009.

§ 11-44-13. Effect of death of claimant prior to filing claim or full payment of compensation.

If a claimant dies prior to the full payment of any claim awarded under this chapter, the remaining payments shall be made to his or her estate or heirs. If any potential claimant dies prior to the filing of a claim, the claim may be filed by and on behalf of his or her estate or heirs.

HISTORY: Laws, 2009, ch. 472, § 7, eff from and after July 1, 2009.

§ 11-44-15. Release from future claims against the state.

Any claimant who receives compensation under this chapter shall sign a release from all claims against the state regarding the incarceration for which the claimant receives compensation.

HISTORY: Laws, 2009, ch. 472, § 8, eff from and after July 1, 2009.

Chapter 45. Suits by and Against the State or Its Political Subdivisions

§ 11-45-1. When the state may be sued.

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be.

HISTORY: Codes, 1871, § 1573; 1880, § 2641; 1892, § 4248; 1906, § 4800; Hemingway’s 1917, § 3164; 1930, § 5997; 1942, § 4387.

Editor’s Notes —

Section7-7-2, as added by Laws, 1984, chapter 488, § 90, and amended by Laws, 1985, chapter 455, § 14, Laws, 1986, chapter 499, § 1, provided, at subsection (2) therein, that the words “state auditor of public accounts,” “state auditor,” and “auditor” appearing in the laws of the state in connection with the performance of auditor’s functions transferred to the state fiscal management board, shall be the state fiscal management board, and, more particularly, such words or terms shall mean the state fiscal management board whenever they appear. Thereafter, Laws, 1989, chapter 532, § 2, amended §7-7-2 to provide that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer, and, more particularly, such words or terms shall mean the State Fiscal Officer whenever they appear. Subsequently, Laws, 1989, ch. 544, § 17, effective July 1, 1989, and codified as §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Cross References —

Filing of claims against state as result of purchases, services, salaries, travel expense, or other encumbrances made, or liabilities incurred, see §7-7-27.

Duty of auditor of public accounts to pre-audit all claims, see §7-7-33.

The issuance, signing, and delivery of warrants for payment of claims by auditor of public accounts, see §7-7-35.

Issuance by auditor of public accounts of duplicate warrants in replacement of lost or destroyed warrants, see §7-7-57.

Immunity of state and its political subdivisions from liability and suit for torts and torts of employees, see §§11-46-1 et seq.

Limitation of suits by and against state, counties and municipalities, see §15-1-51.

JUDICIAL DECISIONS

1. In general.

2. Necessity that claim be one that auditor is empowered to audit.

1. In general.

Where plaintiff sued the Mississippi Attorney General to obtain discovery from him for use in an administrative proceeding, as the suit was against him in his official capacity, and under Miss. Const. Art. 4, § 101, the seat of state government was in Hinds County, venue was proper there, not in Rankin County, where he lived. Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So. 2d 939, 2004 Miss. LEXIS 12 (Miss. 2004).

The proprietary nature of a State agency’s conduct is of no consequence in determining whether sovereign immunity is waived for torts committed while engaged in such conduct, since the proprietary-governmental function distinction applies only to cases involving municipalities. Strait v. Pat Harrison Waterway Dist., 523 So. 2d 36, 1988 Miss. LEXIS 114 (Miss. 1988), overruled, Churchill v. Pearl River Basin Dev. Dist., 619 So. 2d 900, 1993 Miss. LEXIS 74 (Miss. 1993).

State auditor held to have discretion and judgment in connection with payment of fees due county officers on land sold for taxes, so that county officer was not entitled to mandamus to compel auditor to issue warrant without first bringing suit. Thomas v. Price, 171 Miss. 450, 158 So. 206, 1934 Miss. LEXIS 284 (Miss. 1934).

A suit against the land commissioner to recover the purchase price of a tax title declared void is an action against the state and controlled by this section [Code 1942, § 4387]. Brown v. Ford, 112 Miss. 678, 73 So. 722, 1916 Miss. LEXIS 161 (Miss. 1916).

An action against the state to recover the purchase price of a void tax title should have been brought in Hinds County instead of Wilkinson County. Brown v. Ford, 112 Miss. 678, 73 So. 722, 1916 Miss. LEXIS 161 (Miss. 1916).

Where the bill fails to state cause of action the case should be dismissed. Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281, 1916 Miss. LEXIS 128 (Miss. 1916).

The auditor and treasurer were made, by Acts 1876 ch 108, the successors of levee board No. 1, and were liable to be sued as such. The state is a proper party to a suit which sought to enforce a right against said board. State v. Woodruff, 83 Miss. 111, 36 So. 79, 1903 Miss. LEXIS 17 (Miss. 1903).

A sovereign state cannot be sued except by its consent. Hall v. State, 79 Miss. 38, 29 So. 994, 1901 Miss. LEXIS 22 (Miss. 1901).

2. Necessity that claim be one that auditor is empowered to audit.

Pursuant to the general venue statute, venue was proper in the First Judicial District of Harrison County because the Mississippi State Port Authority “resided” there; there was no basis for applying the venue aspect of the statute when the Mississippi Supreme Court had squarely held that the statute did not apply to cases in which the State auditor did not have authority over the claim at issue, like a contractor’s breach of contract claim against the Mississippi State Port Authority. Miss. State Port Auth. at Gulfport v. S. Indus. Contrs. LLC, 271 So.3d 742, 2018 Miss. App. LEXIS 653 (Miss. Ct. App. 2018).

Claim by subcontractor against state building commission arising from nonpayment by general contractor is breach of contract claim for damages which auditor is not empowered to audit; accordingly, §11-45-1 does not apply to claim. Mississippi State Bldg. Com. v. S & S Moving, Inc., 475 So. 2d 159, 1985 Miss. LEXIS 2218 (Miss. 1985).

Claim for privilege taxes erroneously collected, not being subject to allowance by auditor of public accounts, will not support action against state. National Life & Acci. Ins. Co. v. State, 159 Miss. 513, 132 So. 549, 1931 Miss. LEXIS 72 (Miss. 1931).

An action cannot be brought upon a claim which the auditor has no authority to audit and allow. Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281, 1916 Miss. LEXIS 128 (Miss. 1916).

The chancery court has no power to decree what the state should pay for alleged breach of contract with reference to claims against the state which the auditor may not allow. Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281, 1916 Miss. LEXIS 128 (Miss. 1916).

A claim for damages for breach of contract by the state cannot be allowed by the auditor. Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281, 1916 Miss. LEXIS 128 (Miss. 1916).

This section [Code 1942, § 4387] does not embrace claims which the auditor of public accounts is not empowered to audit and allow. Hall v. State, 79 Miss. 38, 29 So. 994, 1901 Miss. LEXIS 22 (Miss. 1901).

Under this section [Code 1942, § 4387], suits can be maintained against the state only upon claims which the auditor is empowered to audit. State v. Dinkins, 77 Miss. 874, 27 So. 832, 1900 Miss. LEXIS 32 (Miss. 1900).

The governor has sole discretion in respect to offering and paying rewards for the arrest of escaped criminals, and consequently no suit can be maintained against the state to recover a reward which the governor declines to pay. State v. Dinkins, 77 Miss. 874, 27 So. 832, 1900 Miss. LEXIS 32 (Miss. 1900).

RESEARCH REFERENCES

ALR.

Tortious breach of contract as within consent to suit against United States or state on contract. 1 A.L.R.2d 864.

Maintenance of class action against governmental entity as affected by requirement of notice of claim. 76 A.L.R.3d 1244.

Sovereign immunity doctrine as precluding suit against sister state for tort committed within forum state. 81 A.L.R.3d 1239.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

When may claims against United States under Federal Tort Claims Act (28 USCS §§ 2671-2680) be maintained as class action. 48 A.L.R. Fed. 860.

Exceptions to jurisdictional immunity of foreign states and their property under the Foreign Sovereign Immunities Act of 1976 (28 USCS §§ 1602 et seq.). 59 A.L.R. Fed. 99.

Am. Jur.

72 Am. Jur. 2d, States, Territories, and Dependencies §§ 101 et seq.

CJS.

81A C.J.S., States §§ 274, 279, 297 et seq.

§ 11-45-3. Service of summons and conduct of case.

The summons in such suit shall be served on the Attorney General in the mode prescribed by law for the service of a summons in other cases; and he shall appear for the state. The suit shall be proceeded with as if it were between private persons; but a bill shall not be taken as confessed nor a judgment by default be rendered against the state. The answer of the state to any bill need not be under oath or under the great seal, but may be made by the Attorney General for the state.

HISTORY: Codes, 1871, §§ 1577, 1578; 1880, § 2642; 1892, § 4249; 1906, § 4801; Hemingway’s 1917, § 3165; 1930, § 5998; 1942, § 4388.

Cross References —

Duty of attorney general to direct issuance of process to carry into execution judgment in cause represented by him, see §7-5-33.

JUDICIAL DECISIONS

1. In general.

In action by plaintiff against state agency, where service was not made on Attorney General as required by Miss Code §11-45-3 but was instead affected by mailing copy of summons and complaint to manager of local office that committed act complained of, claims against state agency were properly dismissed where plaintiff’s counsel failed to establish good cause why service was not made within prescribed period but merely stated that he had not realized he had served wrong person until motion to dismiss was filed; court noted that deficiency in service had been expressly asserted and explained in agency’s answer 4 1/2 months prior to motion to dismiss. Way v. Mueller Brass Co., 840 F.2d 303, 1988 U.S. App. LEXIS 3514 (5th Cir. Miss. 1988).

RESEARCH REFERENCES

ALR.

Local government tort liability: Minority as affecting notice of claim requirement. 58 A.L.R.4th 402.

Am. Jur.

22 Am. Jur. Pl & Pr Forms (Rev), States, Territories, and Dependencies, Form 1 (allegation of complaint, petition, or declaration that state official is authorized agent for service of process).

18 Am. Jur. Pl & Pr Forms, States, Territories, and Dependencies, Form 18:1243 (allegation that state attorney general is authorized agent for service of process on state).

CJS.

81A C.J.S., States §§ 574, 575.

§ 11-45-5. Payment of judgment or decree against the state.

A judgment or decree against the state shall not be satisfied except by an appropriation therefor by the legislature, and an execution shall not be issued against the state.

HISTORY: Codes, 1871, § 1580; 1880, § 2644; 1892, § 4250; 1906, § 4802; Hemingway’s 1917, § 3166; 1930, § 5999; 1942, § 4389.

JUDICIAL DECISIONS

1. In general.

In a civil rights suit commenced against the State and state officials over conditions at state penitentiary, the trial court did not act outside the scope of its authority in ordering the state auditor to issue a warrant upon the state treasurer and ordering the state treasurer in turn to satisfy the judgment of attorney’s fees, where to strike down the order because it was in conflict with Code 1972, §11-45-5, which prohibits the satisfaction of any judgment against the state except by an appropriation therefor by the legislature would be allowing the state, by legislative action, to recloak itself with the Eleventh Amendment immunity which Congress had chosen to remove and would be contrary to the command of the Supremacy Clause of the United States Constitution. Gates v. Collier, 616 F.2d 1268, 1980 U.S. App. LEXIS 17548 (5th Cir. Miss. 1980).

RESEARCH REFERENCES

Am. Jur.

72 Am. Jur. 2d, States, Territories, and Dependencies § 99.

CJS.

81A C.J.S., States § 586.

§ 11-45-7. Remedy against intruders on the lands of the state.

If any person shall unlawfully enter on, and intrude upon or hold land belonging to the state, or take possession of or hold any personal property belonging to the state, such person may be proceeded against by action to be instituted by the district attorney of the district, or by the escheator of the county in a proper case. On the trial of the issue, the court or jury shall assess damages for rents and profits, and for injury done to the property by the despoilment of the timber or otherwise. If the trespass complained of be the cutting, belting, girdling, boxing, or otherwise injuring the timber, triple damages shall be recovered.

HISTORY: Codes, 1857, ch. 17, art. 13; 1880, § 893; 1892, § 4251; 1906, § 4803; Hemingway’s 1917, § 3167; 1930, § 6000; 1942, § 4390.

Cross References —

Persons through which land commissioner may prosecute suits concerning public lands, see §29-1-7.

Duty of land commissioner to institute and prosecute suits to cancel patents to lands fraudulently obtained or issued, and to recover possession of land, see §29-1-9.

Disposition by land commissioner of private claims to public lands, see §29-1-13.

Duty of land commissioner to protect public lands from trespass, see §29-1-17.

RESEARCH REFERENCES

ALR.

Standard of proof as to conduct underlying punitive damage awards-modern status. 58 A.L.R.4th 878.

Am. Jur.

72 Am. Jur. 2d, States, Territories, and Dependencies §§ 89 et seq.

CJS.

81A C.J.S., States §§ 529-531 et seq.

§ 11-45-9. Any property accrued to the state recovered.

In like manner as set forth in Section 11-45-7, an action may be prosecuted in all cases where property, real or personal, has accrued to the state by any forfeiture or otherwise.

HISTORY: Codes, 1857, ch. 17, art. 13; 1880, § 895; 1892, § 4252; 1906, § 4804; Hemingway’s 1917, § 3168; 1930, § 6001; 1942, § 4391.

RESEARCH REFERENCES

Am. Jur.

72 Am. Jur. 2d, States, Territories, and Dependencies §§ 89 et seq.

CJS.

81A C.J.S., States §§ 529-531 et seq.

§ 11-45-11. The state entitled to all actions — unlawful detainer for its lands.

The state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case. It may maintain the action of unlawful entry and detainer in all cases, at its option, for the recovery of land.

HISTORY: Codes, 1880, § 897; 1892, § 4253; 1906, § 4805; Hemingway’s 1917, § 3169; 1930, § 6002; 1942, § 4392.

Cross References —

Duty of attorney general to represent state officers in suits brought by them in their official capacity, see §7-5-39.

Who is entitled to summary remedy of unlawful entry and detainer, see §11-25-1.

Statute of limitations in suits by and against state, see §15-1-51.

Persons through which land commissioner may prosecute suits concerning public lands, see §29-1-7.

Duty of land commissioner to institute and prosecute suits to cancel patents to lands fraudulently obtained or issued, and to recover possession of land, see §29-1-9.

Disposition by land commissioner of private claims to public lands, see §29-1-13.

Duty of land commissioner to protect public lands from trespass, see §29-1-17.

Criminal offense of conspiracy to defraud state, see §§97-7-11 to97-7-15.

JUDICIAL DECISIONS

1. In general.

A school district is an agent of the State, and therefore has within its authority all actions and all remedies to which an individual is entitled. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

A county board of education was an agent of the State, and therefore had the authority to object to a proposed annexation. The board of education was a party interested in, affected by or aggrieved by the proposed annexation within the meaning of §21-1-31, where the territory sought to be annexed was served by schools administered by the county board of education. Additionally, the school board had the authority to exercise its standing and to employ counsel and participate fully in the annexation confirmation proceeding. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

A municipal separate school district may bring suit for alleged damages resulting from the alleged faulty construction of a district’s school building against the contractor, the architect, the bonding company, the sub-contractors, and the furnishers of building materials. Grenada Municipal Separate School Dist. v. Jesco, Inc., 449 So. 2d 226, 1984 Miss. LEXIS 1707 (Miss. 1984).

Under the rule that where a special and particular statute deals with a special and particular subject, its particular terms as to that special subject control over general statutes dealing with the subject generally, the newly elected members of a county board of supervisors could not claim authority under Code 1942, § 2872, § 2944, § 2955, § 4392, or § 4394, to bring suit against the defeated members of the board and their sureties for allegedly illegally expended amounts, in view of the fact that Code 1942, § 9118-10 is specifically directed toward recovery of sums expended contrary to the mandate of the county budget law, and the state auditor is expressly authorized to sue for such recovery. Lincoln County v. Entrican, 230 So. 2d 801, 1970 Miss. LEXIS 1565 (Miss. 1970).

The state has the right and power to file an action for the collection of unpaid privilege taxes and penalties thereon due the state and its political subdivisions by the use of the statutory remedy of an attachment at law without the giving of an attachment bond provided for by Code 1942, § 2680. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

The state, county and municipality were the real parties in interest in a suit by the state for the collection of debts due the state and its political subdivisions as unpaid privilege taxes and penalties. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

The state does not legally become a party to a suit brought on its behalf unless the suit is brought by some officer having statutory authority so to do and a suit brought by the state tax collector without authority is not binding on the state, and a decree therein is not res judicata against the state. State v. Rogers, 206 Miss. 643, 39 So. 2d 533, 1949 Miss. LEXIS 289 (Miss. 1949).

District attorney, with approval of attorney general, was authorized to maintain suit on behalf of county or district thereof against member of board of supervisors and his surety for unlawfully permitting a tractor and other construction equipment belonging to the county to be used for benefit of private individuals, to recover loss to the county arising from depreciation of such equipment, the illegal use of gasoline and oil, and the expenditure of considerable sums for wages to its employees. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

Authorization by board of supervisors of district of county was not required before bringing suit by district attorney on behalf of the county or district against a member of the board for loss resulting from his unauthorized action in permitting county’s construction equipment to be used for benefit of private individuals. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

The fact that the state tax collector had previously brought suit on behalf of the state to recover for removal of sand and gravel from tidewater lands was not res adjudicata as to a subsequent suit on the identical cause of action brought by the state attorney-general, since no jurisdiction could be acquired over the state in the prior suit by the unauthorized act of one of its officials in assuming to appear on its behalf. State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44, 1938 Miss. LEXIS 306 (Miss. 1938).

The state, as trustee for the people of the state, was entitled to recover the value of sand and gravel alleged to have been dredged for commercial purposes from the bed of bayou where the tide ebbed and flowed therein. State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44, 1938 Miss. LEXIS 306 (Miss. 1938).

The state may sue a county as trustee of the 16th section lands and compel an accounting and enforce payment to townships of their proper share. Robertson v. Monroe County, 118 Miss. 520, 79 So. 184, 1918 Miss. LEXIS 84 (Miss. 1918).

RESEARCH REFERENCES

ALR.

Sovereign immunity doctrine as precluding suit against sister state for tort committed within forum state. 81 A.L.R.3d 1239.

State’s standing to sue on behalf of its citizens. 42 A.L.R. Fed. 23.

Am. Jur.

72 Am. Jur. 2d, States, Territories, and Dependencies §§ 89 et seq.

CJS.

81A C.J.S., States §§ 529-531 et seq.

Law Reviews.

1984 Mississippi Supreme Court Review: Corporate, Contract and Commercial Law. 55 Miss. L. J. 65, March, 1985.

§ 11-45-13. Certain suits abated.

All suits which have by acts of the Legislature been heretofore abated shall continue so abated. All rights of action and causes of action which the state, or any officer for the use of the state may have had, where by act of the Legislature such right has been abrogated and the authority and right to bring suit thereon denied, such right shall continue so abrogated and such right and authority to bring suit thereon and therefor shall continue to be denied.

HISTORY: Codes, 1930, § 6003; 1942, § 4393.

§ 11-45-15. County to have like remedies.

Any county may have like remedies given to recover any property belonging to it, or damages for injury thereto; and action may be brought in behalf of the county by the county prosecuting attorney or by someone employed therefor by the board of supervisors.

HISTORY: Codes, 1880, § 896; 1892, § 4254; 1906, § 4806; Hemingway’s 1917, § 3170; 1930, § 6004; 1942, § 4394; Laws, 1978, ch. 509, § 2, eff from and after January 1, 1980.

Cross References —

Limitations of suits by and against state, counties and municipalities, see §15-1-51.

Employment of counsel by county board of supervisors, see §19-3-49.

JUDICIAL DECISIONS

1. In general.

Under the rule that where a special and particular statute deals with a special and particular subject, its particular terms as to that special subject control over general statutes dealing with the subject generally, the newly elected members of a county board of supervisors could not claim authority under Code 1942, § 2872, § 2944, § 2955, § 4392, or § 4394, to bring suit against the defeated members of the board and their sureties for allegedly illegally expended amounts, in view of the fact that Code 1942, § 9118-10 is specifically directed toward recovery of sums expended contrary to the mandate of the county budget law, and the state auditor is expressly authorized to sue for such recovery. Lincoln County v. Entrican, 230 So. 2d 801, 1970 Miss. LEXIS 1565 (Miss. 1970).

If a district attorney may bring suit on behalf of a county, he may bring it where only part of the county is concerned. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

District attorney, with approval of attorney general, was authorized to maintain suit on behalf of county or district thereof against member of board of supervisors and his surety for unlawfully permitting tractor and other construction equipment belonging to the county to be used for benefit of private individuals, to recover loss to the county arising from depreciation of such equipment, the illegal use of gasoline and oil, and the expenditure of considerable sums for wages to its employees. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

Authorization by board of supervisors of district of county was not required before bringing suit by district attorney on behalf of the county or district against a member of the board for loss resulting from his unauthorized action in permitting county’s construction equipment to be used for benefit of private individuals. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

This section [Code 1942, § 4394] does not authorize a county to bring an action of mandamus affecting public interest, as in the case of mandamus to compel the state highway commission to allow a county moneys expended in building a bridge. Hancock County v. State Highway Com., 188 Miss. 158, 193 So. 808, 1940 Miss. LEXIS 15 (Miss. 1940).

A county may institute a suit against a railroad company for the conversion of negotiable bonds of the county issued in aid of the railroad. Board of Sup'rs v. Georgia P. R. Co., 11 So. 471 (Miss. 1892).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 633, 698.

CJS.

20 C.J.S., Counties §§ 410, 411 et seq.

§ 11-45-17. County may sue and be sued.

Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; but suit shall not be brought by the county without the authority of the board of supervisors, except as otherwise provided by law.

HISTORY: Codes, 1857, ch. 59, art. 34; 1871, § 1384; 1880, § 2175; 1892, § 290; 1906 § 309; Hemingway’s 1917, § 3682; 1930, § 270; 1942, § 2955.

Cross References —

Limitations of suits by and against state, counties and municipalities, see §15-1-51.

JUDICIAL DECISIONS

1. In general.

2. Suits by, or on behalf of, or in name of, county.

3. Suits against county.

4. —Venue.

1. In general.

A county had standing under §21-1-31 to object to the annexation of county territory by a city since it was a party interested in, affected by or aggrieved by the annexations. Furthermore, a combined reading of §§11-45-17,11-45-19, and19-3-47(1)(b) vested in the county, acting by and through its board of supervisors, authority to exercise its standing and to employ counsel and participate fully in each annexation and confirmation proceeding. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

Under the rule that where a special and particular statute deals with a special and particular subject, its particular terms as to that special subject control over general statutes dealing with the subject generally, the newly elected members of a county board of supervisors could not claim authority under Code 1942, § 2872, § 2944, § 2955, § 4392, or § 4394, to bring suit against the defeated members of the board and their sureties for allegedly illegally expended amounts, in view of the fact that Code 1942, § 9118-10 is specifically directed toward recovery of sums expended contrary to the mandate of the county budget law, and the state auditor is expressly authorized to sue for such recovery. Lincoln County v. Entrican, 230 So. 2d 801, 1970 Miss. LEXIS 1565 (Miss. 1970).

In a suit against members of a county school board and county superintendent to compel them to provide transportation for children of the school district who were legally enrolled in a school located in another school district, plaintiffs in addition to being citizens, property owners and taxpayers were also fathers and mothers of the children who were denied transportation, had the right to bring the action. Grenada County School Bd. v. Provine, 224 Miss. 574, 80 So. 2d 798, 1955 Miss. LEXIS 523 (Miss. 1955).

2. Suits by, or on behalf of, or in name of, county.

Authority of board of supervisors is not necessary in suit by or on behalf of the county against individual member of the board. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

Authorization by board of supervisors of district of county was not required before bringing suit by district attorney on behalf of the county or district against a member of the board for loss resulting from his unauthorized action in permitting county’s construction equipment to be used for benefit of private individuals. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

This section [Code 1942, § 2955] does not authorize a county to bring an action of mandamus affecting public interest, as in the case of mandamus to compel the state highway commission to allow a county moneys expended in building a bridge. Hancock County v. State Highway Com., 188 Miss. 158, 193 So. 808, 1940 Miss. LEXIS 15 (Miss. 1940).

A private citizen cannot bring a suit on behalf of the county to challenge lease of its property. American Oil Co. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70, 1925 Miss. LEXIS 98 (Miss. 1925).

A suit brought in the name of the board of supervisors for the benefit of the county, instead of in the name of county, is merely a misnomer which should have been objected to in the trial court, and a failure to object then amounts to a waiver and precludes the defendant from raising the point on appeal. National Surety Co. v. Board of Sup'rs, 120 Miss. 706, 83 So. 8, 1919 Miss. LEXIS 125 (Miss. 1919).

A drainage district with power to sue and be sued is not required to bring a suit in the name of the county. Robertson v. Thomas, 118 Miss. 423, 79 So. 289, 1918 Miss. LEXIS 90 (Miss. 1918).

Where two or more officers are authorized to bring suit for the benefit of the county, the one first to bring suit takes control of it. Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318, 1917 Miss. LEXIS 335 (Miss. 1917).

The board of supervisors may authorize, and the county can maintain, an action of replevin for logs cut for sale, and not for necessary estovers or for clearing so much of the land as a prudent owner in fee would clear for cultivation from sixteen sections leased in 1834 for ninety-nine years. Board of Sup'rs v. Gans, 80 Miss. 76, 31 So. 539 (Miss. 1902).

In a suit by a county plea of set-off is bad which fails to show that the claim sought to be set off has been presented to the board of supervisors and rejected. State use of Noxubee County v. Banks, 66 Miss. 431, 6 So. 184, 1889 Miss. LEXIS 122 (Miss. 1889).

While it is only in regard to matters in which the county is interested that boards of supervisors may sue, it cannot escape liability for costs and damages which it has caused by the wrongful suing out of an injunction. Freeman v. Supervisors, 66 Miss. 1, 5 So. 516, 1888 Miss. LEXIS 47 (Miss. 1888).

3. Suits against county.

Preliminary petition to county board of supervisors to institute or permit petitioners to institute a suit to test the legality of annexation of territory of one consolidated school district to an adjoining consolidated school district, is a prerequisite to the right of the petitioners to file such a suit. Hopkins v. Lee, 217 Miss. 624, 64 So. 2d 759, 1953 Miss. LEXIS 471 (Miss. 1953).

Where a petition which asked county board of supervisors to institute or permit petitioners to institute a suit to test the legality of purported annexation of territory of one consolidated district to an adjoining consolidated district, had been filed but had not been acted upon, this was litigation within the meaning of the Validating Act of 1952 and act was inapplicable. Hopkins v. Lee, 217 Miss. 624, 64 So. 2d 759, 1953 Miss. LEXIS 471 (Miss. 1953).

One to whom, as the lowest bidder, a county has awarded a contract for lumber to be used during the year, cannot maintain an action against the county for breach of contract in purchasing lumber from others. Board of Sup'rs v. Payne, 175 Miss. 12, 166 So. 332, 1936 Miss. LEXIS 10 (Miss. 1936).

The amount of damage recoverable by an abutting owner for abandoning a public highway is loss resulting from the depreciation in the fair market value of his land. Jackson v. Monroe County, 124 Miss. 264, 86 So. 769, 1920 Miss. LEXIS 505 (Miss. 1920).

The county will be liable for damages caused in constructing a road negligently under plans and specifications accepted and approved by the board where such work done according to contract has damaged plaintiff. Covington County v. Watts, 120 Miss. 428, 82 So. 309, 1919 Miss. LEXIS 102 (Miss. 1919).

Authority to bring suit against a county does not necessarily carry with it the means of enforcing a judgment, but when judgment is rendered it should be paid by appropriation from any available fund, but if the county has no available funds nor power to levy tax to pay the same the payment of such judgment must be provided for by legislative enactment. Town of Crenshaw v. Panola County, 115 Miss. 891, 76 So. 741, 1917 Miss. LEXIS 276 (Miss. 1917).

Counties are immune from liability to the same extent that the state is and unless statute authorizes a suit the county cannot be held liable. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682, 1917 Miss. LEXIS 267 (Miss. 1917).

Public property of a county cannot be sold under execution against a county. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682, 1917 Miss. LEXIS 267 (Miss. 1917).

4. —Venue.

Where a wrongful death action accrued prior to the enactment of the Mississippi Torts Claims Act, the action against the county was properly transferred to a court in the county. Boston v. Hartford Accident & Indem. Co., 822 So. 2d 239, 2002 Miss. LEXIS 119 (Miss. 2002), overruled in part, Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 2004 Miss. LEXIS 1329 (Miss. 2004).

In an action against the state and two counties to recover for the death of a prisoner, who was found hanging by a shoestring in a shower stall in a jail, the state was properly named as a defendant and, therefore, proper venue was determined by §11-46-13, rather than by §11-45-17. Estate of Jones v. Quinn, 716 So. 2d 624, 1998 Miss. LEXIS 296 (Miss. 1998).

County must be sued in court having jurisdiction of amount sitting at county site, though another person is named as joint defendant. Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692, 1930 Miss. LEXIS 267 (Miss. 1930).

Where a county deprives an abutting owner of access to his farm by vacating a county road, the county is liable for damages. Morris v. Covington County, 118 Miss. 875, 80 So. 337, 1918 Miss. LEXIS 142 (Miss. 1918); Jackson v. St. Louis & S. F. R. Co., 120 Miss. 149, 81 So. 796, 1919 Miss. LEXIS 72 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Maintenance of class action against governmental entity as affected by requirement of notice of claim. 76 A.L.R.3d 1244.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant. 53 A.L.R.5th 617.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 633, 698.

13 Am. Jur. Legal Forms 2d, Municipal, School and State Tort Liability, §§ 181:34-181:36 (claims).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 91 et seq. (notice and presentation of claims).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 101 et seq. (compromise or settlement of claims).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 111 et seq. (actions on claims).

CJS.

20 C.J.S., Counties §§ 414, 415 et seq.

§ 11-45-19. Suit where part only of county is interested.

Suit may be brought, in the name of the county, where only a part of the county or of its inhabitants are concerned, and where there is a public right of such part to be vindicated.

HISTORY: Codes, 1892, § 291; 1906, § 310; Hemingway’s 1917, § 3683; 1930, § 271; 1942, § 2956.

Cross References —

Statute of limitations in suits by and against counties, see §15-1-51.

JUDICIAL DECISIONS

1. In general.

2. Particular actions.

1. In general.

Authorization by board of supervisors of district of county was not required before bringing suit by district attorney on behalf of the county or district against a member of the board for loss resulting from his unauthorized action in permitting county’s construction equipment to be used for benefit of private individuals. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

If a district attorney may bring suit on behalf of a county, he may bring it where only part of the county is concerned. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

2. Particular actions.

A county had standing under §21-1-31 to object to the annexation of county territory by a city since it was a party interested in, affected by or aggrieved by the annexations. Furthermore, a combined reading of §§11-45-17,11-45-19, and19-3-47(1)(b) vested in the county, acting by and through its board of supervisors, authority to exercise its standing and to employ counsel and participate fully in each annexation and confirmation proceeding. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

In a suit against members of a county school board and county superintendent to compel them to provide transportation for children of the school district who were legally enrolled in a school located in another school district, plaintiffs in addition to being citizens, property owners and taxpayers were also fathers and mothers of the children who were denied transportation, and had the right to bring the action. Grenada County School Bd. v. Provine, 224 Miss. 574, 80 So. 2d 798, 1955 Miss. LEXIS 523 (Miss. 1955).

Preliminary petition to county board of supervisors to institute or permit petitioners to institute a suit to test the legality of annexation of territory of one consolidated school district to an adjoining consolidated school district, is a prerequisite to the right of the petitioners to file such a suit. Hopkins v. Lee, 217 Miss. 624, 64 So. 2d 759, 1953 Miss. LEXIS 471 (Miss. 1953).

Where a petition which asked county board of supervisors to institute or permit petitioners to institute a suit to test the legality of purported annexation of territory of one consolidated district to an adjoining consolidated district, had been filed but had not been acted upon, this was litigation within the meaning of the Validating Act of 1952 and act was inapplicable. Hopkins v. Lee, 217 Miss. 624, 64 So. 2d 759, 1953 Miss. LEXIS 471 (Miss. 1953).

A bill in name of individual taxpayers and patrons of consolidated line school district complaining of order of A. county school board transferring A. county pupils of line school to other schools within A. county did not lie, where there was no allegation of any special claim or interest of complainants as compared with balance of taxpayers and patrons of district and no allegation that county board of supervisors had been asked and had refused to vindicate complainants’ rights. Storey v. Rhodes, 178 Miss. 776, 174 So. 560, 1937 Miss. LEXIS 263 (Miss. 1937), but see Grenada Municipal Separate School Dist. v. Jesco, Inc., 449 So. 2d 226, 1984 Miss. LEXIS 1707 (Miss. 1984).

County held to have sufficient interest in suit to compel admission of Chinese children into white schools to warrant allowance to state’s attorney-general for counsel to defend suit. Coahoma County v. Knox, 173 Miss. 789, 163 So. 451, 1935 Miss. LEXIS 259 (Miss. 1935).

§ 11-45-21. Bond not to be required.

Neither the state nor any county shall be required to give bond in any suit.

HISTORY: Codes, 1880, § 897; 1892, § 4255; 1906, § 4807; Hemingway’s 1917, § 3171; 1930, § 6005; 1942, § 4395.

Cross References —

State and local governments, and officials thereof, not having to give appeal bond on appeals, see §11-51-101.

JUDICIAL DECISIONS

1. In general.

An action by the state for the collection of debts due to the state and its political subdivisions as unpaid privilege taxes and penalties thereon was a suit within the meaning of this section [Code 1942, § 4395]. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

The state, county and municipality are the real parties in interest in a suit by the state for the collection of debts due the state and its political subdivisions as unpaid privilege taxes and penalties. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

The state has the right to file action for the collection of unpaid privilege taxes and the interest thereon due the state and its political subdivisions by the use of the statutory remedy of an attachment at law without the giving of an attachment bond provided for by Code 1942, § 2680. Winter v. Brooks, 232 Miss. 742, 100 So. 2d 362, 1958 Miss. LEXIS 323 (Miss. 1958).

§ 11-45-23. Property recovered delivered to agent.

When the state or any county, shall recover property by suit, the possession of the property shall be delivered to such officer, agent or representative of the state or county as may be designated by proper authority to receive it, or having right to its custody for the state or county.

HISTORY: Codes, 1880, § 898; 1892, § 4256; 1906, § 4808; Hemingway’s 1917, § 3172; 1930, § 6006; 1942, § 4396.

§ 11-45-25. Suits by and against municipalities.

A municipality may sue and be sued by its corporate name. Suits against any municipality shall be instituted in the county in which such municipality is situated, where such actions are brought in the circuit or chancery or county courts, and where such municipality is wholly situated in one (1) county. In a case where a county has two (2) judicial districts, such suits shall be brought in the judicial district in which the municipality or its principal office is located. In cases where a municipality is located in two (2) counties, such suits shall be brought in the county in which the principal office of the municipality is located. As to justice court actions, the same shall be brought in the county in which the municipality or its principal office is located.

HISTORY: Codes, 1892, § 2912; 1906, § 3300; Hemingway’s 1917, § 5796; 1930, § 2370; 1942, § 3374-02; Laws, 1938, ch. 335; Laws, 1950, ch. 491, § 2; Laws, 1981, ch. 471, § 39; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

Laws, 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).

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

Location for bringing suits within jurisdiction of justice of the peace, see §11-9-101.

Limitations of suits by and against state, counties and municipalities, see §15-1-51.

For another section derived from same 1942 code section, see §21-1-5.

Establishment of police courts in municipalities, see §§21-23-1 et seq.

Claims by or against municipalities, generally, see §§21-39-5 et seq.

JUDICIAL DECISIONS

I. Under Current Law.

1. Venue.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. Venue.

In an action against the state and two counties to recover for the death of a prisoner, who was found hanging by a shoestring in a shower stall in a jail, the state was properly named as a defendant and, therefore, proper venue was determined by §11-46-13, rather than by §11-45-25. Estate of Jones v. Quinn, 716 So. 2d 624, 1998 Miss. LEXIS 296 (Miss. 1998).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

A judgment in mandamus rendered against the mayor and board of aldermen of the municipality instead of the municipality itself is not for such reason void. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

A municipality is not subject to garnishment for the wages of employees where the same are exempt, and it is the duty of the municipality to set up the facts in its answer to the writ of garnishment. City of Laurel v. Turner, 80 Miss. 530, 31 So. 965, 1902 Miss. LEXIS 281 (Miss. 1902).

A municipality, unless subjected thereto by statute, is not liable to suit by garnishment or otherwise for debts arising from its exercise of governmental functions. Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

A plaintiff or complainant who seeks to subject a municipality to garnishment on the ground that its debt to the defendant was contracted in its private capacity, and not for the exercise of governmental functions, must show the nature of the transaction, and the facts which render it amenable to the process. Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Maintenance of class action against governmental entity as affected by requirement of notice of claim. 76 A.L.R.3d 1244.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred. 69 A.L.R.4th 484.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant. 53 A.L.R.5th 617.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 630, 675.

Notice and presentation of claims, 18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 91 et seq.

Compromise or settlement of claims, 18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 101 et seq.

Actions on claims, 18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Forms 111 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal, School, and State Tort Liability, Forms 1 et seq.

Claims, 13 Am. Jur. Legal Forms 2d, Municipal, School, and State Tort Liability, §§ 181:34-181:36.

CJS.

64 C.J.S., Municipal Corporations §§ 2541-2546 et seq.

Chapter 46. Immunity of State and Political Subdivisions From Liability and Suit for Torts and Torts of Employees

§ 11-46-1. Definitions.

As used in this chapter, the following terms shall have the meanings ascribed unless the context otherwise requires:

“Claim” means any demand to recover damages from a governmental entity as compensation for injuries.

“Claimant” means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.

“Board” means the Mississippi Tort Claims Board.

“Department” means the Department of Finance and Administration.

“Director” means the executive director of the department who is also the executive director of the board.

“Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; and

For purposes of the limits of liability provided for in Section 11-46-15, the term “employee” shall include:

1. Physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under the contract;

2. Any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites, including any physician or other health care practitioner employed by UMMC under an arrangement with a public or private health-related organization;

3. Any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning;

4. Any physician, dentist or other health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for the State Veterans Affairs Board;

The term “employee” shall also include Mississippi Department of Human Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8; and

The term “employee” also shall include any employee or member of the governing board of a charter school but shall not include any person or entity acting in the capacity of an independent contractor to provide goods or services under a contract with a charter school.

“Governmental entity” means the state and political subdivisions.

“Injury” means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.

“Political subdivision” means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, charter school, volunteer fire department that is a chartered nonprofit corporation providing emergency services under contract with a county or municipality, community hospital as defined in Section 41-13-10, airport authority, or other instrumentality of the state, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.

“State” means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.

“Law” means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.

HISTORY: Laws, 1984, ch. 495, § 1; reenacted without change, Laws, 1985, ch. 474, § 1; Laws, 1988, ch. 479, § 2; Laws, 1993, ch. 476, § 1; Laws, 1999, ch. 518, § 1; Laws, 2002, 3rd Ex. Sess., ch. 2, § 2; Laws, 2013, ch. 385, § 1; Laws, 2013, ch. 497, § 32; brought forward without change, Laws, 2016, ch. 367, § 2; Laws, 2017, ch. 398, § 3, eff from and after July 1, 2017.

Joint Legislative Committee Note —

Section 1 of ch. 385, Laws of 2013, effective from and after passage (approved March 20, 2013), amended this section. Section 32 of ch. 497, Laws of 2013, effective from and after July 1, 2013 (approved April 17, 2013), also amended this section. As set out above, this section reflects the language of Section 32 of ch. 497, Laws of 2013, 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, the amendment with the latest effective date shall supersede all other amendments to the same section taking effect on an earlier date.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in (i) by substituting “contract with a county or municipality, community hospital” for “contract with a county or municipality community hospital.” The Joint Committee ratified the correction at its August 1, 2013, meeting.

Editor's Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Laws of 2013, ch. 385, § 6, effective March 20, 2013, provides:

“SECTION 6. This act shall take effect and be in force from and after its passage [approved March 20, 2013]; volunteer fire departments shall have until July 1, 2013, to obtain and have approved the insurance policies of self-insurance reserves or combination thereof required for political subdivisions under the Tort Claims Act.”

Laws of 2017, ch. 398, § 6, provides:

“SECTION 6. The provisions of this act are severable. If any part is declared invalid or unconstitutional, that declaration shall not affect the part which remains.”

Amendment Notes —

The 2002 amendment, 3rd Ex. Sess., rewrote (f).

The first 2013 amendment (ch. 385), in (f), inserted “including firefighters who are members of a volunteer fire department that is a political subdivision” to the end of the first sentence, inserted the subdivision designations, and made minor stylistic changes; in (g), deleted “and includes” preceding “and herein defined” and following “also”; rewrote (i); and made minor stylistic changes throughout.

The second 2013 amendment (ch. 497), in (f), inserted “including firefighters who are members of a volunteer fire department that is a political subdivision” at the end of the first sentence, inserted the subdivision designations and made related changes, and added (f)(iii); rewrote (i); and made minor stylistic changes throughout.

The 2016 amendment brought the section forward without change.

The 2017 amendment added “including any physician…private health-related organization” at the end of (f)(i)2.

Cross References —

Immunity from suit of political subdivisions as they are defined in this section, see §11-46-3.

Applicability of sections11-46-1 et seq. to community hospitals, their owners, and their boards of trustees, see §41-13-11.

Applicability of §§11-46-1 et seq. to causes of action arising out of any wrongful act or omission in connection with an activity or operation of a hospital, nursing home or other community hospital facility or community health program, see §41-13-11.

Application of this chapter to actions by and against electric utilities arising out of injuries resulting from contact with high voltage overhead lines, see §45-15-13.

“State” or a “political subdivision,” as defined in this section, as being an employer subject to the Workers’ Compensation Law, see §71-3-5.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

3. Constitutionality.

4. Employee.

5. Political subdivision.

6. Dismissal of claim.

7. Expert testimony.

8. Standard of care.

9. Miscellaneous.

1. In general.

Former directors and officers of a bankruptcy debtor were not immune from liability under the Mississippi Tort Claims Act because the Act did not bind the hands of the sovereign from pursuing any civil claim inasmuch as the Act did not refer to claims “by” the sovereign, its application came about only as to claims “against” the sovereign, and the debtor was a governmental entity, not seeking compensation under the provisions of the Act. Lefoldt v. Rentfro, 241 So.3d 565, 2017 Miss. LEXIS 456 (Miss. 2017).

Language of the immunity granted by the Mississippi Workers’ Compensation Self-Insurer Guaranty Association Law is different and significantly more restrictive than the immunities granted by the Mississippi Tort Claims Act. Former Bd. of Trs. & Members of Miss. Comp Choice Self-Insurers Fund v. Miss. Workers' Comp. Group Self-Insurer Guar. Ass'n, 157 So.3d 820, 2014 Miss. LEXIS 571 (Miss. 2014).

Where a nurse working at an adult detention center witnessed a sheriff’s department employee beat an inmate and cause injuries that ultimately led to the inmate’s death, the nurse failed to state a claims against the County for common law negligence and negligence under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to -23 (Supp. 2010) because the nurse failed to establish a breach of any duty owed her by the County. Smith v. Harrison County, 67 So.3d 815, 2011 Miss. App. LEXIS 363 (Miss. Ct. App. 2011).

In an action brought under the Mississippi Tort Claims Act, plaintiff failed to prove that an ambulance driver was negligent as a matter of law in operating an ambulance during an emergency when she ran over plaintiff’s foot and caused him to suffer damages. Albright v. Delta Reg'l Med. Ctr., 899 So. 2d 897, 2004 Miss. App. LEXIS 909 (Miss. Ct. App. 2004), cert. denied, 898 So. 2d 679, 2005 Miss. LEXIS 273 (Miss. 2005).

In the context of actions pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 to11-46-23, the common thread running through cases where an officer acts with reckless disregard in operating a motor vehicle is an appreciation of the unreasonable risk of the danger involved coupled with a conscious indifference to the consequences that are certain to follow. Davis v. Latch, 873 So. 2d 1059, 2004 Miss. App. LEXIS 445 (Miss. Ct. App. 2004).

Trial court properly granted summary judgment for defendants in a medical malpractice case where, since the hospital was protected by the Mississippi Tort Claims Act (MTCA), the husband had to meet the requirements of Miss. Code Ann. §11-46-11; he did not substantially comply with the MTCA requirements; plaintiff filed his complaint after the one-year statute of limitations had expired. Davis v. Hoss, 869 So. 2d 397, 2004 Miss. LEXIS 319 (Miss. 2004).

Chancery court lacked subject matter jurisdiction to consider the individuals’ claims brought pursuant to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. against the Mississippi Municipality Liability Plan, for injuries suffered as the result of a motor vehicle accident with a city police officer, as Miss. Const. Art. 6, §§ 159 & 161 did not include actions under the MTCA; rather, the circuit court had jurisdiction over the matter pursuant to Miss. Const. Art. 6, § 156. Miss. Mun. Liab. Plan v. Jordan, 863 So. 2d 934, 2003 Miss. LEXIS 875 (Miss. 2003).

Where a widow filed an action against a city, its police chief, and two police officers, arising from the shooting death of her husband in his home, the trial court erred in dismissing her amended complaint as to her claim under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. because she had specified and separated the negligence-and tort-based state law claims from the constitutional tort claims brought pursuant to 42 U.S.C.S. § 1983 in her amended complaint; the MTCA operated as the exclusive remedy for the state law civil claims against the city, the chief, and the officers; and Miss. R. Civ. P. 8(a) only required that notice of a claim be given. Elkins v. McKenzie, 865 So. 2d 1065, 2003 Miss. LEXIS 582 (Miss. 2003).

Because the only claim for equitable relief in a negligence action brought under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 through11-46-23, was a request for an accounting, the proper jurisdiction was in a circuit court, and not in chancery court. City of Ridgeland v. Fowler, 846 So. 2d 210, 2003 Miss. LEXIS 57 (Miss. 2003).

The clear intent of the legislature in enacting this chapter was to immunize the state and its political subdivisions from any tortious conduct, including tortious breach of implied term or condition of any warranty or contract; however, the provisions of this chapter have no application to a pure breach of contract action. City of Grenada v. Whitten Aviation, Inc., 755 So. 2d 1208, 1999 Miss. App. LEXIS 499 (Miss. Ct. App. 1999).

This chapter does not proscribe actions against the state for the return of private property allegedly wrongfully acquired by the state or its agencies or institutions. Greyhound Welfare Found. v. Mississippi State Univ., 736 So. 2d 1048, 1999 Miss. LEXIS 155 (Miss. 1999).

Negligence cause of action against municipality, arising after Pruett decision abolishing judicially-created sovereign immunity but before Presley decision prospectively holding unconstitutional the tort claims act provision stating sovereign immunity provisions were not yet effective, was governed by pre-Pruett common law. (Per Mills, J., with three justices concurring and three justices concurring in the result). Hord v. City of Yazoo City, 702 So. 2d 121, 1997 Miss. LEXIS 626 (Miss. 1997).

Physicians and other medical personnel at state prison, against whom action was brought following death of prisoner, were not the “state” or its “political subdivisions”, and thus did not come within scope of statute under which state and its political subdivisions are not, have never been, and shall not be liable and are entitled to immunity. Sparks v. Kim, 701 So. 2d 1113, 1997 Miss. LEXIS 619 (Miss. 1997).

Codification of principles of sovereign immunity did not violate Mississippi constitutional provision that courts shall be open and remedy shall be available for every injury; remedy clause is not absolute guarantee of trial and it is legislature’s decision whether or not to address restrictions upon actions against government entities. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

Codification of principles of sovereign immunity did not violate due process clause of Fourteenth Amendment; there was no right to sue state or its political subdivisions at common law and, through codification, legislature continued to withhold such right, and thus there was no property right to sue state. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

The decision of Presley v. Mississippi State Highway Commission (Miss. 1992) 608 So. 2d 1288, which declared the codified principle of sovereign immunity (§§11-46-1 et seq.) unconstitutional, has no retroactive application. Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

There is no “property right” to sue the State, since the Mississippi Legislature has withheld that right through its statutes, and therefore the principle of sovereign immunity, as enacted by the legislature in §§11-46-1 et seq., does not violate the due process clause of the Mississippi Constitution or the 14th Amendment to the United States Constitution.Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

The Mississippi Legislature’s post-Pruett legislative enactments on sovereign immunity (§§11-46-1 et seq.) do not violate the remedy clause of the Mississippi Constitution. Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

The governmental immunity and tort claims act should not be construed to immunize governmental authorities and agencies from suits other than for money damages. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

The decision of the Supreme Court declaring unconstitutional the portion of the Sovereign Immunity Act (§§11-46-1 et seq.) mandating that all claims against the State be governed by case law governing sovereign immunity as it existed on November 10, 1982, applies prospectively only, and is “purely prospective” so that it applies only to claims arising after the mandate issues. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

To the extent that §11-46-6 [Repealed] purports to freeze the doctrine of sovereign immunity to the state of development of the common law prior to Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046, it is void; the State is immunized from claims arising thereafter to the extent that the Supreme Court would do so applying the evolving standards of common law, including any extensions or contractions of the doctrine deemed appropriate, on a case by case basis and to the extent that those benefitting by the immunity did not prepare themselves by acquiring insurance policies covering the liability in question in the event that immunity did not obtain. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The portion of the Sovereign Immunity Act (§§11-46-1 et seq.) requiring that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to the decision in Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046 is unconstitutional as it violates the doctrine of separation of powers and the prohibition against reviving or amending a law by reference to its title only. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

State Highway Commission is alter ego of state and shares in state’s Eleventh Amendment immunity from suit in federal court. Brady v. Michelin Reifenwerke, 613 F. Supp. 1076, 1985 U.S. Dist. LEXIS 17616 (S.D. Miss. 1985).

2. Applicability.

When a father who was denied access to a settlement agreement in a suit filed on behalf of the father’s injured child under the Mississippi Tort Claims Act (Act) sued a court clerk, the father was not required to serve the clerk as provided in the Act because the father’s request for access to the settlement agreement was not a “claim” under the Act. Ewing v. Neese, 199 So.3d 681, 2016 Miss. LEXIS 344 (Miss. 2016).

Ambulance service was entitled to Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., protections because the ambulance service was an instrumentality of governmental entities, specifically a city, a county, and a county general hospital, as the operations of the ambulance service were overwhelmingly controlled by the governmental entities, which owned the ambulance service. Woodall v. AAA Ambulance Serv., 161 So.3d 1071, 2015 Miss. LEXIS 188 (Miss. 2015).

Given the context of the relationship between the manager and the nursing home, there was no genuine issue of material fact regarding whether the manager was an “instrumentality” of the nursing home; as an instrumentality of a community hospital, the manager was entitled to the protections, limitations, and immunities of the Mississippi Tort Claims Act. Estate of Fedrick v. Quorum Health Res., Inc., 2008 Miss. App. LEXIS 672 (Miss. Ct. App. Nov. 4, 2008), rev'd, 45 So.3d 641, 2010 Miss. LEXIS 363 (Miss. 2010).

Sections 11-46-1 et seq., applied to a case where the event giving rise to the action occurred on June 1, 1994, clearly after the Act went into effect. Henderson v. Un-Named Emergency Room, 758 So. 2d 422, 2000 Miss. LEXIS 79 (Miss. 2000), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Trial court, on remand, had to determine whether at the time of the alleged negligent conduct, the doctor was an employee of a state entity covered by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1; if so, the trial court had to further determine whether the statute of limitations had run as to the doctor as prescribed by Miss. Code Ann. §11-46-11. McClain v. Clark, 992 So. 2d 636, 2008 Miss. LEXIS 515 (Miss. 2008).

Finding against the student in her action against a state university and a professor after she suffered a third-degree burn at an iron pour demonstration was improper because the state university, falling within the coverage of Miss. Code Ann. §11-46-1(j), was not protected by discretionary function immunity and was liable for the professor’s negligence pursuant to the waiver of sovereign immunity; it was difficult to fathom how the professor’s failure to put down dry sand before the pour involved a policy judgment of a social, political, or economic nature. Pritchard v. Von Houten, 960 So. 2d 568, 2007 Miss. App. LEXIS 42 (Miss. Ct. App.), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 391 (Miss. 2007).

Finding in favor of the husband and wife in their action against the city for personal injuries and loss of consortium under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., was proper pursuant to Miss. R. Evid. 401 and Miss. R. Evid. 402 because an expert’s testimony tended to make the fact that the city negligently repaired and maintained the grate and sidewalk more probable than that without his proffered evidence. City of Natchez v. Jackson, 941 So. 2d 865, 2006 Miss. App. LEXIS 686 (Miss. Ct. App. 2006).

Finding in favor of the hospital in the patient’s action under the Mississippi Tort Claims Act was proper because the patient failed to prove that the treatment he received was the proximate cause of his alleged injuries. Lander v. Singing River Hosp. Sys., 933 So. 2d 1043, 2006 Miss. App. LEXIS 523 (Miss. Ct. App. 2006).

Dismissal of the decedent’s mother’s and a student’s action against a state university resulting from a shooting on campus was appropriate under Miss. Code Ann. §11-46-1 et seq. because the shooting of the victims was not the harm that would have otherwise resulted from failing to log the gunman in on campus; additionally, there was no authority that the university, through an employee, had a duty to warn the victims of the dangerous condition of the gunman’s character. Johnson v. Alcorn State Univ., 929 So. 2d 398, 2006 Miss. App. LEXIS 406 (Miss. Ct. App. 2006).

Police did not have immunity from suit where a police officer acted recklessly in initiating a police chase of a suspect where the chase was not because a serious crime had just been committed; the vehicles exceeded the speed limit in a residential neighborhood, in the dark, with a low probability of apprehending the suspect, as he was known as someone who would flee and had successfully fled in the past. City of Ellisville v. Richardson, 913 So. 2d 973, 2005 Miss. LEXIS 275 (Miss. 2005).

Miss. Code Ann. §11-46-3 granted immunity to the state and its political subdivisions for breach of implied term or condition of any warranty or contract. Thus, although the decedent was indeed a third-party beneficiary of the written contract between the city and the development district, her estate was not permitted to pursue claims of breach of implied terms of that contract against the city or its political subdivisions. City of Jackson v. Estate of Stewart, 908 So. 2d 703, 2005 Miss. LEXIS 298 (Miss. 2005).

Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, did not provide immunity for a city that neglected to inspect or maintain a city ditch; business was entitled to damages when, during a heavy rain, the ditch flooded, causing property damage. City of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60, 2005 Miss. LEXIS 219 (Miss. 2005).

Denial of the general hospital’s and physicians’ motion to transfer venue in a medical malpractice action was improper under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., where the general hospital was entitled to a venue in the county in which the principal offices were located, Miss. Code Ann. §11-11-3(1), because the decedent’s heirs failed to assert a reasonable claim of liability against the medical center and treating physicians. Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 2004 Miss. LEXIS 289 (Miss. 2004).

Personal injury plaintiffs’ motion for a remand of the matter to state court was granted because it could not be stated that the Mississippi Department of Transportation (MDOT) was fraudulently joined as a defendant in the action simply to defeat diversity jurisdiction, particularly when the MDOT could be held potentially liable to plaintiffs under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Johnson v. James Constr. Group, LLC, 306 F. Supp. 2d 654, 2004 U.S. Dist. LEXIS 2597 (S.D. Miss. 2004).

Department of Public Safety was not immune from liability in a suit by a driver. A state trooper, who was speeding excessively, acted in reckless disregard of the driver’s safety. Miss. Dep't of Pub. Safety v. Durn, 861 So. 2d 990, 2003 Miss. LEXIS 871 (Miss. 2003).

Under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., whether governmental conduct was discretionary required a two-prong analysis: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment involved social, economic or political policy alternatives, and, conversely, governmental conduct was ministerial if imposed by law, and its performance was not dependent on the employee’s judgment. Doe v. State ex rel. Miss. Dep't of Corr., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

While parole supervision procedures appeared to be ministerial in nature, a field officer’s responsibilities to monitor and supervise a parolee were immune from suit in cases where the State had no indication of a specific threat on a parolee’s part to harm an individual. Doe v. State ex rel. Miss. Dep't of Corr., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

The University of Mississippi Medical Center and the University Anesthesia Services Practice Group (UAS) established in connection with the Medical Center are instrumentalities of the State of Mississippi within the meaning of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 through11-46-23 and, as such, waived their immunity against a claim for medical malpractice liability only to the extent that UAS had purchased liability insurance; further, a staff anesthesiologist who participated in an operation in which a child suffered brain damage while sedated was an employee of the Center entitled to immunity despite also being a member of UAS and despite the fact that the doctor had personal liability insurance. Mozingo v. Scharf, 828 So. 2d 1246, 2002 Miss. LEXIS 315 (Miss. 2002).

3. Constitutionality.

The fact that the parties disagreed as to whether an individual was an employee within the meaning of the statute did not mean the statute’s definition was constitutionally vague. Smith v. Braden, 765 So. 2d 546, 2000 Miss. LEXIS 201 (Miss. 2000).

The Tort Claims Act does not violate the right to due process by depriving persons of their day in court as there is no property right to sue the state. Smith v. Braden, 765 So. 2d 546, 2000 Miss. LEXIS 201 (Miss. 2000).

The Tort Claims Act does not violate the right to equal protection by protecting a physician employed by the state, while not protecting other physicians practicing medicine in Mississippi. The relevant question is whether the plaintiff, rather than the defendant, is treated differently from others that are similarly situated. Smith v. Braden, 765 So. 2d 546, 2000 Miss. LEXIS 201 (Miss. 2000).

Sections 11-46-1 to 11-46-23 do not violate the constitutional requirements that courts be open and that a remedy be available for every injury since the remedy clause is not an absolute guarantee of trial and it is the legislature’s decision whether to address restrictions upon actions against government entities. Quinn v. Mississippi State Univ., 720 So. 2d 843, 1998 Miss. LEXIS 328 (Miss. 1998), overruled in part, City of Jackson v. Estate of Stewart, 908 So. 2d 703, 2005 Miss. LEXIS 298 (Miss. 2005).

The court rejected the contention that the Sovereign Immunity Act is unconstitutional as it pertains to claims arising between April 1, 1993, and October 1, 1993. Chamberlin v. City of Hernando, 716 So. 2d 596, 1998 Miss. LEXIS 295 (Miss. 1998).

4. Employee.

In a medical malpractice action, summary judgment was properly granted in favor of defendant doctor because he was employed by an entity covered by the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23 (2002), and was thus afforded the MTCA’s protection and because plaintiff patient failed to provide a timely notice of the claim under the MTCA. Because MTCA’s one-year statute of limitations had expired, the patient was barred from asserting a claim for the wrongful death of her 10-month-old son. Gorton v. Rance, 52 So.3d 351, 2011 Miss. LEXIS 62 (Miss. 2011).

Although a patient alleged that he was injured by the negligence of a doctor who was an independent contractor of a hospital, the Mississippi Tort Claims Act provided immunity to the state and its political subdivisions, such as the hospital, for the negligence of its independent contractors. Therefore, the trial court properly entered summary judgment in favor of the hospital. Brown v. Delta Reg'l Med. Ctr., 997 So. 2d 195, 2008 Miss. LEXIS 498 (Miss. 2008).

Plaintiff VA patient conceded that a vascular surgeon was a state employee, and despite the patient’s arguments to the contrary, the court found that there was no genuine issue of material fact that at the pertinent time, the surgeon was acting within the course and scope of his duties as a state employee, under Miss. Code Ann. §§11-46-5(3),11-46-7(7), and, thus, immune under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 et seq. His involvement with the patient was solely by virtue of his being on-call pursuant to his employment with the university and its relationship to the VA facility. Creel v. United States, 512 F. Supp. 2d 574, 2007 U.S. Dist. LEXIS 39306 (S.D. Miss. 2007), rev'd, 598 F.3d 210, 2010 U.S. App. LEXIS 4252 (5th Cir. Miss. 2010).

Pursuant to Miss. Code Ann. §11-46-1(f) and Miller factors, the doctor was an employee of the state hospital and the state for purposes of liability under the Mississippi Tort Claims Act; therefore, summary judgment was properly granted in favor of the doctor on the husband’s wrongful death and medical malpractice claims. Barksdale v. Carroll, 944 So. 2d 107, 2006 Miss. App. LEXIS 638 (Miss. Ct. App.), cert. denied, 946 So. 2d 368, 2006 Miss. LEXIS 697 (Miss. 2006).

Doctor acted as an employee of the state of Mississippi when he treated the patient; therefore, the doctor was entitled to immunity as provided in the Mississippi Tort Claims Act and the trial court erred when it denied the doctor’s motion for summary judgment. Meeks v. Miller, 956 So. 2d 942, 2006 Miss. App. LEXIS 500 (Miss. Ct. App. 2006), aff'd, 956 So. 2d 864, 2007 Miss. LEXIS 281 (Miss. 2007).

According to the plain language of Miss. Code Ann. §11-46-1(f), the State intends to protect part-time workers, full-time workers, salaried employees, and uncompensated employees. The purpose of the Mississippi Torts Claim Act (MTCA) is to provide immunity to the physicians who are acting on behalf of the State or a political subdivision in any official capacity, temporarily or permanently, in the service of the State or a political subdivision, whether with or without compensation; the 2002 amendment to Miss. Code Ann. §11-46-1 was not intended as an additional restriction to exclude certain physicians, but, rather, the addition was meant to assure that the physicians who were members of the departmental practice plans were fully protected under the MTCA. Thus, the appellate court was unable to conclude that the doctor (who was being sued by decedent’s husband) was not an employee, merely because he did not belong to the departmental practice plan; an uncompensated, part-time physician at University of Mississippi Medical Center does not have to be a member of the employee practice plans to be considered an employee under Miss. Code Ann. §11-46-1(f) of the MTCA. Barksdale v. Carroll, 2006 Miss. App. LEXIS 177 (Miss. Ct. App. Mar. 14, 2006), sub. op., op. withdrawn, 944 So. 2d 107, 2006 Miss. App. LEXIS 638 (Miss. Ct. App. 2006).

In a car accident case, where decedent’s husband was suing a doctor who was an employee of the University of Mississippi Medical Center (UMMC), and the State, for purposes of liability under Miss. Code Ann. §11-46-1(f) of the Mississippi Tort Claims Act (MTCA), the doctor was immune from liability because (1) he was acting as a supervisor with regard to the decedent; (2) he did not choose his patients or the residents that he supervised; (3) he was acting as a faculty physician and was following the direction of the UMMC; (4) over the phone, he acted in a supervisory capacity to a surgical resident, which involved little judgment or discretion; and (5) he was acting as an uncompensated faculty member for the UMMC, not as an independent contractor. Therefore, the doctor’s motion for summary judgment on the husband’s second amended complaint alleging causes of action for malpractice, negligence and medical negligence, res ipsa loquitur, and failure to obtain informed consent, was properly granted. Barksdale v. Carroll, 2006 Miss. App. LEXIS 177 (Miss. Ct. App. Mar. 14, 2006), sub. op., op. withdrawn, 944 So. 2d 107, 2006 Miss. App. LEXIS 638 (Miss. Ct. App. 2006).

Doctor was not immune under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2), from a patient’s malpractice suit because the doctor was an independent contractor, rather than an employee of a county hospital, within the meaning of “employee” in Miss. Code Ann. §11-46-1(f), where the doctor’s contract was with a private corporation that assigned her to work at the hospital and issued her paycheck. Carpenter v. Reinhard, 2005 U.S. Dist. LEXIS 37207 (N.D. Miss. July 15, 2005).

Grant of summary judgment against the patient in her medical malpractice action against the physician was proper where the physician was an employee of the state university medical center and therefore an employee of the state of Mississippi. Thus, he was immune from liability under Miss. Code Ann. §11-46-7(2) of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Owens v. Thomae, 904 So. 2d 207, 2005 Miss. App. LEXIS 401 (Miss. Ct. App. 2005).

In a medical malpractice action, a doctor was not entitled to summary judgment on the issue of immunity under the Mississippi Tort Claims Act because there were disputed issues of fact regarding the doctor’s true employment status, including the nature of the doctor’s contractual and business relationships with a county hospital and a private corporation. Carpenter v. Reinhard, 345 F. Supp. 2d 629, 2004 U.S. Dist. LEXIS 26581 (N.D. Miss. 2004).

Although a man, who fell under the definition of “employee” for purposes of Miss. Code Ann. §11-46-1(f) of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23, caused an accident that injured an individual and then failed to disclose to the individual that the man was a county employee, the individual failed to establish that the county withheld information regarding the employee’s work status, nor did the individual show that the county provided the individual with misleading or inaccurate information, and the individual did not exercise due diligence in determining the true parties of the lawsuit or in determining the man’s work status; thus, the court affirmed the trial court’s grant of summary judgment under Miss. R. Civ. P. 56(c) in favor of the county and the man on the grounds that the individual failed to substantially comply with the notice requirements of the MTCA, and, therefore, the statute of limitations had expired. Ray v. Keith, 859 So. 2d 995, 2003 Miss. LEXIS 409 (Miss. 2003).

For purposes of Miss. Code Ann. §11-46-1(f) of the the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 through11-46-23, receiving income for a University of Mississippi Medical Center medical practice plan does not make a physician an independent contractor. Watts v. Tsang, 828 So. 2d 785, 2002 Miss. LEXIS 304 (Miss. 2002).

For purposes of Miss. Code Ann. §11-46-1(f) of the the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 through11-46-23, the doctor who supervised a procedure that left the patient a paraplegic was a state employee and immune from liability because (1) the doctor was employed by the University of Mississippi Medical Center (UMMC) and acting according to the terms and conditions of the doctor’s contract; (2) the doctor was a full-time faculty member at UMMC and had never engaged in the practice of medicine outside the course and scope of the doctor’s employment; and (3) the doctor was a supervising teacher and trainer of residents (interns and fellows as well) and did not receive compensation from any person or entity other than a State entity. Watts v. Tsang, 828 So. 2d 785, 2002 Miss. LEXIS 304 (Miss. 2002).

Summary judgment for the defendant physician was not appropriate in a medical malpractice action where the plaintiffs did not dispute that the physician was an employee of a state university in his role as an assistant professor, but there was a material issue of fact as to whether he was an employee of the state university in connection with his private practice. Smith v. Braden, 765 So. 2d 546, 2000 Miss. LEXIS 201 (Miss. 2000).

The defendant physician was not entitled to summary judgment in a medical malpractice action on the basis of the one year statute of limitations contained in the Tort Claims Act. There was a triable issue of fact regarding whether he was a state employee within the meaning of the statute while engaged in clinical outpatient practice under the general auspices of the state university which employed him. Miller v. Meeks, 762 So. 2d 302, 2000 Miss. LEXIS 169 (Miss. 2000).

The evidence showed that a doctor was not a staff physician, but rather a post-graduate house staff officer, and thus she was an employee of the state, who was provided with no additional compensation for her services; thus, the Tort Claims Act applied to her, and the lower court was correct in dismissing a medical malpractice action against her; however, the evidence with regard to two other doctors was not clear, and the cases against them were remanded for additional discovery. Pickens v. Donaldson, 748 So. 2d 684, 1999 Miss. LEXIS 292 (Miss. 1999).

5. Political subdivision.

In a pedestrian’s action to recover for injuries she sustained after she stepped into a sunken utility box, a utilities commission was properly granted summary judgment because the pedestrian released it when she executed a settlement agreement with the city; the pedestrian sent notice to both the city and the commission under the Mississippi Tort Claims Act, claiming the city was liable for the negligence of its employees by not making sure the sidewalk and utility box were installed properly. Hathorn v. Louisville Utils. Comm'n, 233 So.3d 273, 2017 Miss. LEXIS 403 (Miss. 2017).

When a developer sued a city, the city’s public utilities commission, and a utilities department (department) for damage to the developer’s property in installing utility lines, the department was a “political subdivision” because (1) the department was an arm of the public utilities commission, (2) the department was responsible for governmental activities, and (3) whether the department was engaged in proprietary activities was irrelevant. Kelley v. Corinth PUC, 200 So.3d 1107, 2016 Miss. App. LEXIS 36 (Miss. Ct. App.), cert. denied, — So.3d —, 2016 Miss. LEXIS 393 (Miss. 2016), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 394 (Miss. 2016), cert. denied, 203 So.3d 599, 2016 Miss. LEXIS 403 (Miss. 2016).

School district constitutes a governmental entity and a political subdivision pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Swindle v. Neshoba County Sch. Dist., 137 So.3d 869, 2013 Miss. App. LEXIS 574 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 235 (Miss. 2014).

Definition of “governmental entity” included political subdivisions, and a county was a political subdivision. Alexander v. Newton County, 124 So.3d 688, 2013 Miss. App. LEXIS 197 (Miss. Ct. App.), cert. denied, 123 So.3d 450, 2013 Miss. LEXIS 565 (Miss. 2013).

Volunteer firefighter was not immune from suit under the Mississippi Tort Claims Act (MTCA) for claims arising from an automobile accident because the volunteer fire department was not a political subdivision of the State. Under Miss. Code Ann. §95-9-1(3)(b), the firefighter could be liable for negligent operation of a vehicle. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 2012 Miss. LEXIS 486 (Miss. 2012).

Trial court erred by denying the community hospital’s motion for summary judgment because: (1) the community hospital was a political subdivision of the State under Miss. Code Ann. §11-46-1(i), and therefore the son was subject to the notice requirements and statutes of limitations of Miss. Code Ann. §11-46-11(1); (2) under §11-46-11(1), proper service of notice to the hospital would be on the CEO of the hospital, and not the county; (3) the trial court erred by concluding that substantial compliance with § 11-46-11(1) in regard to whom the notice was sent was erroneous; and (4) because the son never filed the statutorily required notice with the hospital’s CEO, the hospital’s sovereign immunity from suit was intact. Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 2010 Miss. LEXIS 645 (Miss. 2010).

Husband and wife’s 42 U.S.C.S. § 1983 suit against a Mississippi county sheriff’s department failed because the department when viewed in accordance with Fed. R. Civ. P. 17(b)(3) and the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., was not a separate legal entity that could be sued. Winn v. Harrison County, 2009 U.S. Dist. LEXIS 35323 (S.D. Miss. Apr. 27, 2009).

Where the deceased patient’s daughter brought a medical malpractice suit against the University of Mississippi Medical Center, the Supreme Court of Misssippi held that the medical center was an instrument of the State and subject to the requirements of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1(j). Therefore, plaintiff was required to timely give notice of her claim to the medical center within one year as provided by Miss. Code Ann. §11-46-11(3). Univ. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837, 2008 Miss. LEXIS 597 (Miss. 2008).

Where a doctor working in partnership with a community hospital was sued for medical malpractice, the trial court determined that he was entitled to immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-5. The doctor was an employee of a “community hospital” within the definition of “political subdivision” pursuant to Miss. Code Ann. §11-46-1(i). Estate of Grimes v. Warrington, 982 So. 2d 365, 2008 Miss. LEXIS 101 (Miss. 2008).

Where a doctor working in partnership with a community hospital was sued for medical malpractice, he did nothing to assert immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., for five years until he moved for summary judgment; because he delayed and actively participated in discovery, he waived MTCA immunity. Estate of Grimes v. Warrington, 982 So. 2d 365, 2008 Miss. LEXIS 101 (Miss. 2008).

While plaintiffs erred under Miss. Code Ann. §11-46-1(i) in naming a sheriff’s department as a defendant in a personal injury suit, the trial court erred in denying plaintiffs’ motion for leave to amend the complaint pursuant to Miss. R. Civ. P. 15(c) to add a county as a defendant where plaintiffs’ notice of claim letter put the proper county official on notice that, except for the mistake of naming the wrong party, the action would have been brought against the county. Mieger v. Pearl River County, 986 So. 2d 1025, 2008 Miss. App. LEXIS 21 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 371 (Miss. 2008).

Where plaintiff parent sued defendant school district in state court alleging her child was sexually assaulted at school and obtained a judgment under the Mississippi Tort Claims Act, her later claims in federal court were properly held as barred due to res judicata; while school districts’ sources of funding under Miss. Code Ann. §37-45-21,37-47-1 et seq., Miss. Code Ann. §37-57-1, Miss. Code Ann. §37-59-3, and Miss. Code Ann. §37-151-7 were equally divided between local school districts and the state under Miss. Code Ann. §11-46-7, Miss. Code Ann. §11-46-16(2), and Miss. Code Ann. §11-46-17(2), any judgment against the school district would be paid through the Tort Claims Fund and excess liability insurance, and thus, the school district was not considered an arm of the state entitled to Eleventh Amendment immunity. Black v. N. Panola Sch. Dist., 461 F.3d 584, 2006 U.S. App. LEXIS 21259 (5th Cir. Miss. 2006).

State legislature did not intend for the Mississippi Tort Claims Act (MTCA) to extend to a private entity such as defendant, a transit company that executed an agreement with a city to operate and maintain a public transportation system; defendant was not created for the sole purpose of fulfilling a state mandated government service (rather, defendant was presumably created to be a profitable business for the benefit of its shareholders). Thompson v. McDonald Transit Assocs., 440 F. Supp. 2d 530, 2006 U.S. Dist. LEXIS 50919 (S.D. Miss. 2006).

Although Miss. Code Ann. §19-25-19 states that all sheriffs shall be liable for the acts of their deputies, this does not provide sufficient weight to tip the argument in favor of finding that a sheriff’s department is a separate political subdivision or governmental entity for purposes of the Mississippi Tort Claims Act (MTCA). Brown v. Thompson, 927 So. 2d 733, 2006 Miss. LEXIS 100 (Miss. 2006).

In a case of first impression, the Supreme Court of Mississippi held that a county sheriff’s department was not a political subdivision as defined in Miss. Code Ann. §11-46-1(i), of the Mississippi Tort Claims Act (MTCA), and thus an individual’s suit naming the sheriff’s department was not properly filed; the county should have been named as the governmental defendant. A review of the structural relationship between counties and sheriff’s departments in Miss. Code Ann. §19-25-13 and Miss. Code Ann. §19-25-19 supported that holding. Brown v. Thompson, 927 So. 2d 733, 2006 Miss. LEXIS 100 (Miss. 2006).

Suspect in murder gave a videotaped statement indicating that the couple were present during the victim’s murder, robbery having been the motive, and based on that information, the sheriff obtained an arrest warrant for the couple. When the aforementioned suspect recanted his allegation, and sheriff realized there was no longer probable cause to hold the couple, sovereign immunity applied in the couple’s suit against the sheriff and the county for false arrest and malicious prosecution, under the exception of Miss. Code Ann. §11-46-9(1)(c). Keen v. Simpson County, 904 So. 2d 1157, 2004 Miss. App. LEXIS 1039 (Miss. Ct. App. 2004).

Trial court abused its discretion in denying a motion by a hospital and three physicians to transfer venue in a medical malpractice action because a decedent’s heirs had failed to assert a reasonable claim of liability against certain defendants that had been dismissed from the action and because the hospital was a community hospital under the Mississippi Tort Claims Act and was entitled to venue in the county in which its governing body’s principal offices were located. Wayne Gen. Hosp. v. Hayes, 2003 Miss. LEXIS 598 (Miss. Nov. 6, 2003).

Working in conjunction with Miss. Code Ann. §11-46-3(1), §11-46-1(i) defines “political subdivisions” to specifically include school districts. Harris v. McCray, 867 So. 2d 188, 2003 Miss. LEXIS 553 (Miss. 2003).

Airport authority that argued it was a “joint airport board” was nevertheless a governmental entity that exercised powers that were declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity, and thus was a political subdivision under subsection (i); the airport authority could not escape liability by merely asserting that it was really an airport board because airport boards, although not specifically listed, were by definition subject to the statute. Spencer v. Greenwood/Leflore Airport Auth., 834 So. 2d 707, 2003 Miss. LEXIS 5 (Miss. 2003).

For purposes of Miss. Code Ann. §11-46-1(i), (j) of the the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 through11-46-23, the University Anesthesia Services is an instrumentality of the State, even though it is a private, for-profit corporation that pays state taxes like other private corporations. Watts v. Tsang, 828 So. 2d 785, 2002 Miss. LEXIS 304 (Miss. 2002).

For purposes of Miss. Code Ann. §11-46-1(i), (j) of the the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 through11-46-23, where a medical practice group was created by the University of Mississippi Medical Center (UMMC), and is overseen by UMMC, and the purpose is to supplement the income of its faculty; when the day-to-day oversight is left to the department chair, subject to limited oversight by the vice chancellor, and its membership is composed solely of full-time UMMC-faculty physicians; where the faculty physicians can only practice at UMMC-approved sites, and the money is distributed on a point system based on factors other than mere patient service, the medical practice group is a State entity. Watts v. Tsang, 828 So. 2d 785, 2002 Miss. LEXIS 304 (Miss. 2002).

School district was entitled to sovereign immunity from wrongful death action arising out of death of eight-year-old special education student who ran away from school. Brown v. Houston Sch. Dist., 704 So. 2d 1325, 1997 Miss. LEXIS 745 (Miss. 1997).

6. Dismissal of claim.

Grant of summary judgment in favor of the university, Board, and others was proper because the professor failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit; her claims based on tortious conduct, tortious breach of contract, and breach of an implied contractual term or warranty were foreclosed by her failure to adhere to the requirement of the Mississippi Tort Claims Act, Miss Code Ann. §11-46-1 et seq., that all administrative remedies be exhausted prior to filing suit. Whiting v. Univ. of S. Miss., 62 So.3d 907, 2011 Miss. LEXIS 170 (Miss. 2011), overruled in part, Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

State court negligence claim under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 through11-46-23 (Rev. 2002), was properly dismissed on the ground of res judicata because administratrix’s prior federal 42 U.S.C.S. § 1983 suit was derived from the same underlying facts and circumstances, and the four elements of the doctrine of res judicata were met. Hill v. Carroll County, 17 So.3d 1081, 2009 Miss. LEXIS 443 (Miss. 2009).

Civil rights litigant’s motion to amend his pro se complaint in tort to add a federal claim under 42 U.S.C.S. § 1983 for violation of his right to free speech on the ground that the tort claims were barred by the Mississippi Tort Claims Act was properly denied because the federal claim was barred under the applicable residual three-year statute of limitation period in Miss. Code Ann. §15-1-49 and because the amended claim did not relate back to the time of the filing of the original pleading, pursuant to Miss. R. Civ. P. 15(c); the proposed amendment did not pass the identity of transaction test because the tort claims asserted in the original complaint did not bear a relation to the free speech claim and the defendant was not on notice regarding the free speech claim. Giles v. Stokes, 988 So. 2d 926, 2008 Miss. App. LEXIS 419 (Miss. Ct. App. 2008).

Where a county hospital and its employee were sued in tort for injuries related to a car accident that occurred when the employee was running an errand for her employer, the dismissal of the employee from the action under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1, et seq., did not act as a release of her insurance company. The insurance company was contractually obligated to defend or indemnify the county hospital as an additional insured under the language of the insurance policy. Franklin County Mem'l Hosp. v. Miss. Farm Bureau Mut. Ins. Co., 975 So. 2d 872, 2008 Miss. LEXIS 122 (Miss. 2008).

Grant of summary judgment in favor of the city and police officer in the jogger’s action under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, after he was struck by the police officer while jogging was appropriate because the jogger failed to prove that the officer acted with reckless disregard of the safety and well-being of others, Miss. Code Ann. §11-46-9(1)(c). Morton v. City of Shelby, 984 So. 2d 323, 2007 Miss. App. LEXIS 761 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 274 (Miss. 2008).

Dismissal of the employee’s action after he was terminated was proper because although he filed his suit against the sheriff’s department and the sheriff within the statutorily prescribed period in Miss. Code Ann. §11-46-11(3), he still failed to comply with the Mississippi Tort Claims Act since he filed his complaint 37 days before he filed his notice of claim with the sheriff’s department. Clanton v. DeSoto County Sheriff's Dep't, 963 So. 2d 560, 2007 Miss. App. LEXIS 30 (Miss. Ct. App. 2007).

In an action pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., where a slow-moving county motor grader executed a turn on the highway, even though the operator did not give a hand signal, the grader operator was not negligent in failing to do same or for failing to keep a proper lookout, but the injured driver was negligent in passing the grader within 100 feet of an intersection and failing to keep a proper lookout. Barnett v. Lauderdale County Bd. of Supervisors, 880 So. 2d 1085, 2004 Miss. App. LEXIS 853 (Miss. Ct. App. 2004).

Evidence showed the officer was traveling approximately 37 miles per hour with lights and sirens activated, there was nothing obstructing the view of either the person later injured or the officer, and the greater weight of evidence also proved that the person’s left turn signal was not activated. In addition, the officer had consciously stopped at the previous two intersections because the officer considered both of those to be blind intersections, and therefore, the officer’s behavior supported the finding that the officer appreciated the risk involved in approaching the intersection and did not act with reckless disregard. Davis v. Latch, 873 So. 2d 1059, 2004 Miss. App. LEXIS 445 (Miss. Ct. App. 2004).

Grant of summary judgment in favor of the employee’s employer was proper where the employee failed to substantially comply with the notice provisions of the Mississippi Tort Claim Act’s, Miss. Code Ann. §11-46-1 et seq., Miss. Code Ann. §11-46-11. Harris v. Miss. Valley State Univ., 873 So. 2d 970, 2004 Miss. LEXIS 492 (Miss. 2004).

When a victim was raped by a parolee accepted from another state for supervision, summary judgment was correctly granted to the State in the victim’s action against it for negligently accepting supervision of the parolee and negligently supervising him because acceptance of the parolee’s supervision was mandatory under the Uniform Act for Out-of-State Parolee Supervision, Miss. Code Ann. §47-7-71, as he had family and a job in Mississippi, and decisions made by the parolee’s supervising parole officer in the course of the parolee’s supervision were discretionary, so the State could not be held liable under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Doe v. State ex rel. Miss. Dep't of Corr., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

Former university professor’s tortious interference with contract claim against the university that formerly employed her and its officials was covered by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq.; accordingly, the professor had to comply with the Act’s requirements as it was the exclusive remedy for the professor under Miss. Code Ann. §11-46-7(1); furthermore, the professor’s claim was time-barred under Miss. Code Ann §11-46-11(3) as it was not timely filed. Black v. Ansah, 2003 Miss. App. LEXIS 502 (Miss. Ct. App. June 3, 2003), op. withdrawn, sub. op., 876 So. 2d 395, 2003 Miss. App. LEXIS 948 (Miss. Ct. App. 2003).

In an arrestee’s suit alleging that a deputy sheriff used excessive force, the arrestee’s state-law tort claims were dismissed because the arrestee failed, under the substantial compliance standard, to comply with the notice provisions of the Mississippi Tort Claims Act. Whiting v. Tunica County, 222 F. Supp. 2d 809, 2002 U.S. Dist. LEXIS 16741 (N.D. Miss. 2002).

7. Expert testimony.

In a case filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., a trial court did not err by allowing expert testimony under Miss. R. Evid. 702 because a witness did not have to be a pulmonologist in order to opine on matters concerning aspiration pneumonia; the witness had received specialized training and knowledge in medical school and by treating other patients. Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141, 2007 Miss. LEXIS 691 (Miss. 2007).

8. Standard of care.

In a medical negligence suit brought by the decedent’s brother under the Mississippi Tort Claims Act, the circuit court did not err in finding in favor of appellees, the intermediate-care facility and the Mississippi Department of Mental Health, as no breach of the standard of care proximately caused the decedent’s death because appellees’ expert witness testified that the decedent was an independent patient who, within reason, could move about her residence at the facility without an escort; and, although the facility’s staff was required to know the decedent’s location at all times and to perform 15-minute checks on her, the term “monitored closely” did not equate to constant one-on-one supervision of the decedent. Harper v. Hudspeth Reg'l Ctr., 270 So.3d 239, 2018 Miss. App. LEXIS 392 (Miss. Ct. App. 2018).

Where alleged negligent actions are caused by an employee who is not a doctor or a nurse in a medical malpractice case, the conduct must be evaluated using traditional negligence/reasonable care standards; therefore, in a case filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., the reasonable care standard was properly applied where an employee’s action caused water to be aspirated by a post-surgical patient, which allegedly resulted in pneumonia. This action contradicted the medical records, which stated that the patient was to receive nothing by mouth. Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141, 2007 Miss. LEXIS 691 (Miss. 2007).

9. Miscellaneous.

Trial court erred in dismissing a son’s wrongful death action against a state hospital because its director was the hospital’s CEO under the Mississippi Tort Claims Act, and the son provided pre-suit notice to the proper party; the definition of “State” in the MTCA included hospitals, and the Department of Mental Health was not a substitute for the CEO of the hospital, which was the “state entity.” Ivy v. E. Miss. State Hosp., 191 So.3d 120, 2016 Miss. LEXIS 188 (Miss. 2016).

In a personal injury suit brought against a deputy sheriff and the county that employed him, the trial court did not err in finding that immunity under the Mississippi Tort Claims Act did not attach to the county because the deputy acted in reckless disregard for the safety of others by continuing to drive a vehicle that had been signaling that there were brake problems for several weeks and failing to properly resolve the brake issues. The deputy, being aware that the brake-warning light was still on in the vehicle during the weeks leading up to the accident, should not have continued driving the vehicle in a professional capacity. Pearl River Cnty. v. Bethea, 196 So.3d 1012, 2015 Miss. App. LEXIS 627 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 616, 2016 Miss. LEXIS 307 (Miss. 2016).

Personal-injury action did not need to be remanded for a determination of the mother’s competency under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because the son did not request a determination of unsoundness of mind from the trial court and issues not raised in the trial court were barred from consideration at the appellate level. Further, because the son brought the action on behalf of his mother and she was not the plaintiff in the case, her competence to assert her rights in the lawsuit was not at issue. Kimball Glassco Residential Ctr. v. Shanks, 64 So.3d 941, 2011 Miss. LEXIS 281 (Miss. 2011).

There was no showing of inequitable conduct on behalf of either defendant in a personal injury action since no action by either reasonably could have induced the mother’s son to believe that defendants were not entitled to the privileges and immunities of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. Thus, the trial court erred by finding that the doctrine of equitable estoppel prevented defendants from asserting the MTCA statute of limitations. Kimball Glassco Residential Ctr. v. Shanks, 64 So.3d 941, 2011 Miss. LEXIS 281 (Miss. 2011).

Driver and center did not waive their defenses under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Although there was an approximately 11-month delay in the case, during the delay no party took any action to advance the litigation and during the delay, the center and driver pursued their affirmative defenses by informing the mother’s son of their intent to seek a hearing on the motion to dismiss, Miss. Code Ann. §11-46-11(3). Kimball Glassco Residential Ctr. v. Shanks, 64 So.3d 941, 2011 Miss. LEXIS 281 (Miss. 2011).

Trial court did not apply an incorrect standard of care for comparative negligence when it failed to require an employee to show that a county sheriff’s deputy acted with reckless disregard because the deputy was not afforded the protection provided by Miss. Code Ann. §11-46-9(1)(c) when his personal injury suit against the employer, a non-governmental entity, was not a claim as defined under Miss. Code Ann. §11-46-1(a); section11-46-9(1)(c) limits liability, not fault, when a plaintiff files suit against a governmental entity, and there was no reason why it should prohibit the allocation of fault when an employee of the governmental entity files suit against a non-governmental entity. Thompson v. Rizzo Farms, Inc., 27 So.3d 452, 2009 Miss. App. LEXIS 568 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 67 (Miss. 2010).

Pursuant to 28 U.S.C.S. § 1367(c)(3), a court declined to exercise supplemental jurisdiction over the Mississippi Tort Claims Act (MTCA) claims of an arrestee and her children after their federal 42 U.S.C.S. § 1983 claims were dismissed with prejudice, as the Mississippi Supreme Court expressed a strong preference that MTCA claims be litigated before a state circuit judge. Smith v. City of Nettleton, 2008 U.S. Dist. LEXIS 101175 (N.D. Miss. Dec. 15, 2008).

After dismissing, upon summary judgment, a former student’s 42 U.S.C.S. § 1983 claims against a university and its officials, a court declined, pursuant to 28 U.S.C.S. § 1367(c)(3), to exercise supplemental jurisdiction over the student’s Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., and state law breach of contract claims. Senu-Oke v. Jackson State Univ., 521 F. Supp. 2d 551, 2007 U.S. Dist. LEXIS 76367 (S.D. Miss. 2007), aff'd, 283 Fed. Appx. 236, 2008 U.S. App. LEXIS 13264 (5th Cir. Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Drainage district is political subdivisions of state, as well as private enterprise, and should have liability insurance coverage. Bradley Sept. 8, 1993, A.G. Op. #93-0632.

Office of district attorney is not exempt from supporting Tort Claims System through requirements to have liability insurance by virtue of general immunity. Mellen, Jan. 12, 1994, A.G. Op. #93-0705.

Although counties and cities are without authority to provide specific types of insurance set forth in Section 25-15-101 to volunteer firefighters, tort risk coverage may be provided under Section 11-46-1. Ranck, Feb. 16, 1994, A.G. Op. #94-0080.

Sections 11-46-1 et seq. include actions brought against state agency employees and political subdivision employees in federal law actions for acts or omissions occurring within the course and scope of their duties. Hardy, March 2, 1995, A.G. Op. #95-0084.

The Mississippi Business Finance Corporation (MBFC), as a state agency, has sovereign immunity. MBFC does not have the authority to execute an agreement which would, in effect, waive the immunity by agreeing to indemnify a third party for claims. Pittman, March 29, 1995, A.G. Op. #95-0107.

The Workers’ Compensation Commission peer reviewers fall within the definition of Section 11-46-1(f) and as such would be entitled to a defense subject to all provisions of the Act. Additionally, if Section 11-46-9(1)(d) applies, the Commission’s peer reviewers would be exempt from liability and therefore immune from suit. Porter, August 23, 1995, A.G. Op. #95-0343.

The definition, in Section 11-46-1(f), does exclude from the protection of the Act those persons “acting on behalf of the state” who are “independent contractors.” Howell, March 8, 1996, A.G. Op. #96-0137.

The Tort Claims Act is not a “law with respect to the acquisition, operation or disposition of property,” and therefore a housing authority is not excluded from the requirements of the Tort Claims Act. See Sections 11-46-1(i), 43-33-5 and 43-33-11. Hardy, March 29, 1996, A.G. Op. #96-0157.

There appears to be no statutory prohibition to using wanted posters in an effort to find individuals with outstanding contempt of court warrants. However, the Mississippi Tort Claims Act as set forth in Section 11-46-1 et. seq., does not protect state agencies or political subdivisions from defamation. Moran, July 8, 1996, A.G. Op. #96-0431.

If the county does not choose to provide a bond for the medical examiner, and the medical examiner is sued in her official capacity, the county would be obligated to provide legal counsel. See Sections 25-1-47 and 11-46-1, et seq. Brooks, December 20, 1996, A.G. Op. #96-0835.

Staff physicians under contract with the University of Mississippi Medical Center are employees of a governmental entity of the State of Mississippi, and the Medical Center is responsible for affording them a defense and paying any judgment against them or settlement for any claim arising out of an act or omission within the course and scope of their employment, and within the limits of the Mississippi Tort Claims Act. Conerly, September 4, 1998, A.G. Op. #98-0500.

A county supervisor falls within the definition of “employee” under the Mississippi Tort Claims Act. Ross, Jr., Jan. 22, 2002, A.G. Op. #01-0754.

An unpaid volunteer acting on behalf of a state university hospital is afforded coverage under the Tort Claims Act. Connerly, Mar. 29, 2002, A.G. Op. #02-0144.

Full-time staff doctors employed by and paid by a public hospital owned by a county are considered employees for purposes of the Tort Claims Act, and as such, are not personally liable for acts or omissions occurring within the course and scope of their employment. Brown, Apr. 26, 2002, A.G. Op. #02-0211.

The Bolivar Medical Center Foundation is a public corporation and the respective trustees and employees are covered by the Tort Claims Act. Griffith, Oct. 18, 2002, A.G. Op. #02-0590.

Employees of the Pat Harrison Waterway District acting within the scope and course of their employment are covered by the Tort Claims Act. Matthews, Dec. 6, 2002, A.G. Op. #02-0686.

Doctors, nurses and pharmacists employed by the State Department of Health and acting within the scope and course of their employment are covered by the Tort Claims Act. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

A legal defense is provided to doctors, nurses and pharmacists employed by the State Department of Health even though the conduct is alleged to be outside the course and scope of their employment. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

There is no reason for a practitioner to obtain additional liability coverage as long as the acts are within the course and scope of his employment with the State Health Department. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

Physicians, while performing responsibilities as Emergency Medical Services Medical Directors, are acting on behalf of the state in an official capacity and would fall within the definition of “employee” under the Mississippi Tort Claims Act. Amy, Aug. 8, 2005, A.G. Op. #05-0366.

No authority can be found for a state agency to enter into a contract which includes language obligating the state to defend a vendor or contractor, when the state or its employees are negligent. The state may affirmatively acknowledge its potential liability for negligence under the Tort Claims Act. Stringer, Jan. 25, 2006, A.G. Op. #06-0610.

In an instance where a Mississippi Animal Response Team volunteer is injured in a training exercise sponsored by the Mississippi Board of Animal Health, or where the volunteer injures a third party at such training event, any liability claims arising out of actions of the volunteer are subject to the Mississippi Tort Claims Act. Watson, Feb. 3, 2006, A.G. Op. #06-0005.

A county may enter private land and remove tree stumps and debris as part of a settlement with the landowner. Clanton, Feb. 10, 2006, A.G. Op. #06-0023.

Where a Mississippi Animal Response Team volunteer is injured in a training exercise sponsored by the Mississippi Board of Animal Health, or where the volunteer injures a third party at such training event, any liability claims arising out of actions of the volunteer are subject to the Mississippi Tort Claims Act. Watson, Feb. 24, 2006, A.G. Op. #06-0050.

Although a community hospital is a political subdivision protected by the Mississippi Tort Claims Act, any non-profit corporation or limited liability company formed by the hospital is not. Williamson, Apr. 7, 2006, A.G. Op. #06-0040.

There is no authority that would allow a city to reimburse city employees for the cost incurred for damage that was caused to their personal property while it was housed or displayed on city property. Lawrence, June 26, 2006, A.G. Op. #06-0237.

A community hospital is a political subdivision protected by the Mississippi Tort Claims Act. Donnell, July 22, 2005, A.G. Op. #05-0304.

A county may accept the donation of services and materials from a private developer for public construction projects performed on public land, including county roads. The county board of supervisors should make the appropriate findings of fact citing the need for the work and characterizing the work as a donation, and record the findings in the minutes. The board of supervisors should also assess any potential liability concerns with the county’s insurance carrier regarding the implications under the Tort Claims Act. Bond, February 23, 2007, A.G. Op. #07-00048.

RESEARCH REFERENCES

ALR.

Liability of county for torts in connection with activities which pertain, or are claimed to pertain, to private or proprietary function. 16 A.L.R.2d 1079.

Persons upon whom notice of injury or claim against municipal corporation may or must be served. 23 A.L.R.2d 969.

Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 A.L.R.2d 203.

Tort liability of governmental unit for injury or damage resulting from insecticide and vermin eradication operations. 25 A.L.R.2d 1057.

Operation of garage for maintenance and repair of municipal vehicles as governmental function. 26 A.L.R.2d 944.

Installation or operation of parking meters as within governmental immunity from tort liability. 33 A.L.R.2d 761.

Infancy or incapacity as affecting notice required as condition of holding municipality or other political subdivision liable for personal injury. 34 A.L.R.2d 725.

Tort liability of municipality or other governmental unit in connection with destruction of weeds and the like. 34 A.L.R.2d 1210.

Maintenance of auditorium, community recreational center, building, or the like, by municipal corporation as governmental or proprietary function for purposes of tort liability. 47 A.L.R.2d 544.

Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability. 55 A.L.R.2d 1434.

Rule of municipal immunity from liability for acts in performance of governmental functions as applicable to personal injury or death as result of a nuisance. 56 A.L.R.2d 1415.

Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability. 57 A.L.R.2d 1336.

Municipal immunity from liability for torts. 60 A.L.R.2d 1198.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body. 65 A.L.R.2d 1278.

Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability. 68 A.L.R.2d 1437.

What is “motor vehicle” or the like within statute waiving governmental immunity as to operation of such vehicles. 77 A.L.R.2d 945.

Liability for performing an autopsy. 83 A.L.R.2d 955.

Snow removal operations as within doctrine of governmental immunity from tort liability. 92 A.L.R.2d 796.

Right of contractor with federal, state, or local public body to latter’s immunity from tort liability. 9 A.L.R.3d 382.

Modern status of the rules as to immunity of foreign sovereign from suit in federal or state courts. 25 A.L.R.3d 322.

Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning. 33 A.L.R.3d 703.

Liability of highway authorities arising out of motor vehicle accident allegedly caused by failure to erect or properly maintain traffic control device at intersection. 34 A.L.R.3d 1008.

Tort liability of public schools and institutions of higher learning for injuries caused by acts of fellow students. 36 A.L.R.3d 330.

Tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes. 37 A.L.R.3d 712.

Tort liability of public schools and institutions of higher learning for injuries due to condition of grounds, walks, and playgrounds. 37 A.L.R.3d 738.

Tort liability of public schools and institutions of higher learning for injuries resulting from lack or insufficiency of supervision. 38 A.L.R.3d 830.

Liability of municipal corporation for negligent performance of building inspector’s duties. 41 A.L.R.3d 567.

Liability of governmental entity or public officer for personal injury or damages arising out of vehicular accident due to negligent or defective design of highway. 45 A.L.R.3d 875.

Attorney’s mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit. 55 A.L.R.3d 930.

Modern status of the law as to validity of statutes or ordinances requiring notice of tort claim against local governmental entity. 59 A.L.R.3d 93.

Liability of governmental entity for issuance of permit for construction which caused or accelerated flooding. 62 A.L.R.3d 514.

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties. 71 A.L.R.3d 6.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties. 71 A.L.R.3d 90.

Maintenance of class action against governmental entity as affected by requirement of notice of claim. 76 A.L.R.3d 1244.

Sovereign immunity doctrine as precluding suit against sister state for tort committed within forum state. 81 A.L.R.3d 1239.

Governmental tort liability for social service agency’s negligence in placement, or supervision after placement, of children. 90 A.L.R.3d 1214.

Governmental liability from operation of zoo. 92 A.L.R.3d 832.

Liability of governmental unit or private owner or occupant of land abutting highway for injuries or damage sustained when motorist strikes tree or stump on abutting land. 100 A.L.R.3d 510.

Liability of university, college, or other school for failure to protect student from crime. 1 A.L.R.4th 1099.

Tort liability of public schools and institutions of higher learning for educational malpractice. 1 A.L.R.4th 1139.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge. 2 A.L.R.4th 635.

Actual notice or knowledge by governmental body or officer of injury or incident resulting in injury as constituting required claim or notice of claim for injury – modern status. 7 A.L.R.4th 1063.

Liability of urban redevelopment authority or other state or municipal agency or entity for injuries occurring in vacant or abandoned property owned by governmental entity. 7 A.L.R.4th 1129.

Construction and application, under state law, of doctrine of “executive privilege”. 10 A.L.R.4th 355.

Liability of state, in issuing automobile certificate of title, for failure to discover title defect. 28 A.L.R.4th 184.

Governmental tort liability as to highway median barriers. 58 A.L.R.4th 559.

Governmental tort liability for injury to roller skater allegedly caused by sidewalk or street defects. 58 A.L.R.4th 1197.

Governmental liability for failure to post highway deer crossing warning signs. 59 A.L.R.4th 1217.

State’s liability for personal injuries from criminal attack in state park. 59 A.L.R.4th 1236.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents’ custody. 60 A.L.R.4th 942.

Liability of municipal corporation or other governmental entity for injury or death caused by action or inaction of off-duty police officer. 36 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries. 48 A.L.R.5th 129.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student. 85 A.L.R.5th 301.

Liability of municipality or other governmental unit for failure to provide police protection from crime. 90 A.L.R.5th 273.

Action in Replevin for Recovery of Dog or Cat. 85 A.L.R.6th 429.

Federal Tort Claims Act: When is government officer or employee “acting within the scope of his office or employment” for purpose of determining government liability under 28 USCS sec. 1346(b). 6 A.L.R. Fed. 373.

Effect of Foreign Sovereign Immunities Act (28 USCS secs. 1330, 1441(d), 1602 et seq.) on right to jury trial in action against foreign state. 56 A.L.R. Fed. 679.

Am. Jur.

41 Am. Jur. Trials 1, Social Worker Malpractice for Failure to Protect Foster Children.

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

Fraiser, A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees Individual Liability, Exemptions to the Waiver of Immunity, Non-Jury Trial, and Limitation of Liability, 68 Miss L.J. 703, Spring, 1999.

Litigation in Mississippi Today: A Symposium: Comment: Mississippi Tort Claims Act: Is Discretionary Immunity Useless?, 71 Miss. L.J. 695, Winter, 2002.

Tort Reform and the Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22 Miss. C. L. Rev. 9, Fall, 2002.

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues: Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss. L.J. 973, Spring, 2007.

§ 11-46-3. Declaration of legislative intent.

  1. The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the “state” and its “political subdivisions,” as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.
  2. The immunity of the state and its political subdivisions recognized and reenacted herein is and always has been the law in this state, before and after November 10, 1982, and before and after July 1, 1984, and is and has been in full force and effect in this state except only in the case of rights which, prior to the date of final passage hereof, have become vested by final judgment of a court of competent jurisdiction or by the express terms of any written contract or other instrument in writing.

HISTORY: Laws, 1984, ch. 495, § 2; reenacted and amended, Laws, 1985, ch. 474, § 2; reenacted and amended, Laws, 1986, ch. 438, § 1; Laws, 1987, ch. 483, § 1; Laws, 1988, ch. 442, § 1; Laws, 1989, ch. 537, § 1; Laws, 1990, ch. 518, § 1; Laws, 1991, ch. 618, § 1; Laws, 1992, ch. 491 § 3; Laws, 1992 Special Session, ch. 3, § 1; Laws, 1993, ch. 476, § 2, eff from and after passage (approved April 1, 1993).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Cross References —

Waiver of immunity granted in this section, see §11-46-5.

JUDICIAL DECISIONS

1. In general.

2. Retroactivity.

3 Implied contracts.

4. Illustrative cases.

1. In general.

Holding that Mississippi Tort Claims Act covers both tortious breach of contract and breaches of implied terms and warranties of a contract, extends to claims for tortious interference with business relations as well. Idom v. Natchez-Adams Sch. Dist., 115 F. Supp. 3d 792, 2015 U.S. Dist. LEXIS 91321 (S.D. Miss. 2015).

Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., serves to provide immunity from suit to the State of Mississippi and its political subdivisions; however, the MTCA waives immunity for claims for money damages arising out of the torts of government entities and employees while acting within the course and scope of their employment to the extent set forth in the MTCA. Swindle v. Neshoba County Sch. Dist., 137 So.3d 869, 2013 Miss. App. LEXIS 574 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 235 (Miss. 2014).

A thorough review of Miss. Code Ann. §1-3-33 and the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., revealed that there was no contrary intent manifested by the Legislature that meant that the MTCA should be interpreted only in the singular manner; Miss. Code Ann. §11-46-15(1) was interpreted by using singular or plural language. The Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent set forth in Miss. Code Ann. §11-46-3. Miss. DOT v. Allred, 928 So. 2d 152, 2006 Miss. LEXIS 114 (Miss. 2006).

Resident’s argument that the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-3, should not apply to investment property was untenable as Miss. Code Ann. §11-46-3 (1) explicitly mentioned immunity pertaining to proprietary functions; furthermore, under a political subdivision’s broad power to purchase and hold real estate, the lesser power to lease was necessarily implied. Davis v. Forrest Royale Apts., 938 So. 2d 293, 2006 Miss. App. LEXIS 172 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 545 (Miss. 2006).

In conjunction with Miss. Code Ann. §11-46-3(1), §11-46-1(i) defines “political subdivisions” to specifically include school districts. Harris v. McCray, 867 So. 2d 188, 2003 Miss. LEXIS 553 (Miss. 2003).

The statute does not violate the separation of powers doctrine. Fortune v. Lee County Bd. of Supervisors, 725 So. 2d 747, 1998 Miss. LEXIS 321 (Miss. 1998).

Under subsection (2), only acts of an incorporated municipality which are proprietary in nature are excepted from sovereign immunity. Mosby v. Moore, 716 So. 2d 551, 1998 Miss. LEXIS 276 (Miss. 1998), limited, Gale v. Thomas, 759 So. 2d 1150, 1999 Miss. LEXIS 379 (Miss. 1999).

Department of Transportation had sovereign immunity from liability to motorist who was injured at intersection where department was conducting road construction when oncoming ambulance struck her car at intersection, allegedly after department’s flagman flagged motorist to proceed with left turn; department’s purchase of liability insurance for employees operating motor vehicles in performance of official duties did not waive immunity, as flagman was not operating motor vehicle. Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597, 1997 Miss. LEXIS 421 (Miss. 1997).

Department of Transportation had sovereign immunity on claim for indemnification by ambulance service that was sued for injuries sustained by motorist when oncoming ambulance struck her car at intersection, allegedly after department’s flagman flagged her to proceed with left turn. Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597, 1997 Miss. LEXIS 421 (Miss. 1997).

Sovereign immunity applies to actions where state is possible joint tort-feasor. Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597, 1997 Miss. LEXIS 421 (Miss. 1997).

School district was “political subdivision” of state and thus was protected by sovereign immunity from negligence suit arising from incident on August 26, 1993, after effective date of statute restoring sovereign immunity for state and its political subdivisions, but before effective date of statute largely waiving such immunity for political subdivisions. Gressett by & Through Gressett v. Newton Separate Mun. Sch. Dist., 697 So. 2d 444, 1997 Miss. LEXIS 326 (Miss. 1997).

Codification of principles of sovereign immunity did not violate Mississippi constitutional provision that courts shall be open and remedy shall be available for every injury; remedy clause is not absolute guarantee of trial and it is legislature’s decision whether or not to address restrictions upon actions against government entities. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

Codification of principles of sovereign immunity did not violate due process clause of Fourteenth Amendment; there was no right to sue state or its political subdivisions at common law and, through codification, legislature continued to withhold such right, and thus there was no property right to sue state. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

Sovereign immunity cloaks all “governmental functions” a city performs. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

“Governmental functions,” which are cloaked with sovereign immunity, are those functions which a city is required to undertake. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Operation of fire department, including the supply of water to combat fires, is a governmental function, cloaked by sovereign immunity, even if the same supply provides drinking water, which is proprietary activity. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

City could not lose sovereign immunity for fire protection service in annexed area through negligence per se, where annexation ordinance did not require specific placement of water lines or mains in a certain point. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Governmental officers are immune from personal liability for fire protection decisions if the decision to provide water lines, or certain aspects of fire protection to property, is a discretionary matter involving public policy decisions. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Provision of water lines, under annexation ordinance providing for installment of water lines “when necessary and economically feasible,” was discretionary decision, for which city officials were entitled to qualified immunity. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

The decision of Presley v. Mississippi State Highway Commission (Miss. 1992) 608 So. 2d 1288, which declared the codified principle of sovereign immunity (§§11-46-1 et seq.) unconstitutional, has no retroactive application. Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

There is no “property right” to sue the State, since the Mississippi Legislature has withheld that right through its statutes, and therefore the principle of sovereign immunity, as enacted by the legislature in §§11-46-1 et seq., does not violate the due process clause of the Mississippi Constitution or the 14th Amendment to the United States Constitution.Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

The Mississippi Legislature’s post-Pruett legislative enactments on sovereign immunity (§§11-46-1 et seq.) do not violate the remedy clause of the Mississippi Constitution. Robinson v. Stewart, 655 So. 2d 866, 1995 Miss. LEXIS 223 (Miss. 1995).

A city’s operation of a service garage and towing service for its vehicles was a proprietary function, and therefore the defense of sovereign immunity was not available in a wrongful death action against the city arising from a collision between the deceased’s car and a city tow truck. Thomas v. Hilburn, 654 So. 2d 898, 1995 Miss. LEXIS 230 (Miss. 1995).

For purposes of governmental immunity, the statutory framework for reporting cases of suspected child abuse includes elements of both ministerial and discretionary conduct; §43-21-353 first requires a person to make a determination of whether “reasonable cause” exists as a foundation for an incident report, which involves a duty to investigate a ministerial duty and a decision as to whether reasonable cause exists a decision involving the exercise of personal judgment and discretion; if a determination is made that there is reasonable cause to report the incident, the statute then mandates that an immediate oral report be issued to the Department of Human Services an action involving no discretion. T.M. v. Noblitt, 650 So. 2d 1340, 1995 Miss. LEXIS 15 (Miss. 1995).

The governor was not protected by §11-46-3 in a declaratory action alleging that he engaged in rulemaking under state law and violated the plaintiff’s right to take part in the rulemaking process under the state’s Administrative Procedures Law because he failed to give notice of his plans to adopt a Capacity Assurance Plan before its submission to the United States Environmental Protection Agency, since the statute is part of the governmental immunity and tort claims act and the plaintiff’s claim was not based on tort damages under §11-46-3(1). Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

The governmental immunity and tort claims act should not be construed to immunize governmental authorities and agencies from suits other than for money damages. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

A county was protected by sovereign immunity in a wrongful death action arising from an automobile collision which occurred on a county road bridge on September 20, 1985, following the enactment of §§11-46-1 et seq. Coplin v. Francis, 631 So. 2d 752, 1994 Miss. LEXIS 40 (Miss. 1994), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

The decision of the Supreme Court declaring unconstitutional the portion of the Sovereign Immunity Act (§§11-41-6 et seq.) mandating that all claims against the State be governed by case law governing sovereign immunity as it existed on November 10, 1982, applies prospectively only, and is “purely prospective” so that it applies only to claims arising after the mandate issues. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

To the extent that §11-46-6 purports to freeze the doctrine of sovereign immunity to the state of development of the common law prior to Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046, it is void; the State is immunized from claims arising thereafter to the extent that the Supreme Court would do so applying the evolving standards of common law, including any extensions or contractions of the doctrine deemed appropriate, on a case by case basis and to the extent that those benefitting by the immunity did not prepare themselves by acquiring insurance policies covering the liability in question in the event that immunity did not obtain. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

The portion of the Sovereign Immunity Act (§§11-46-1 et seq.) requiring that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to the decision in Pruett v. City of Rosedale (Miss. 1982) 421 So. 2d 1046 is unconstitutional as it violates the doctrine of separation of powers and the prohibition against reviving or amending a law by reference to its title only. Presley v. Mississippi State Highway Com., 608 So. 2d 1288, 1992 Miss. LEXIS 581 (Miss. 1992).

In a personal injury action against a city and city officials, the 6-year statute of limitations set forth in §15-1-49, rather than the 2-year statute of limitations set forth in §11-46-11(3) of the Tort Claims Act, applied since the Tort Claims Act had not yet taken effect. Starnes v. Vardaman, 580 So. 2d 733, 1991 Miss. LEXIS 312 (Miss. 1991).

The continuance of electrical power is a property interest worthy of due process protections. Thus, the defense of sovereign immunity was not available to a county where a homeowner alleged that he had been damaged when the county and an electrical utility discontinued his electrical power, since sovereign immunity is no defense where a violation of constitutional rights is concerned. Tucker v. Hinds County, 558 So. 2d 869, 1990 Miss. LEXIS 173 (Miss. 1990).

2. Retroactivity.

Where the plaintiff was not prejudiced by application of the retroactive provisions of this section, she had no standing to assert that the retroactive provisions of this section rendered this section constitutionally defective as a whole. Lincoln County Sch. Dist. v. D.B., 749 So. 2d 943, 1999 Miss. LEXIS 164 (Miss. 1999).

3 Implied contracts.

County was not entitled to a dismissal of a health care provider’s reimbursement claim for a prisoner’s medical expenses under Miss. Code Ann. §47-1-59 because such claims were separate and distinct from the state’s law related to sovereign immunity and the claims were not implied contractual claims subject to immunity under Miss. Code Ann. §11-46-3. Vuncannon v. United States, 650 F. Supp. 2d 577, 2009 U.S. Dist. LEXIS 52190 (N.D. Miss. 2009).

Building owner’s claims against a city for money had and received and unjust enrichment constituted implied-in-law contract causes of action and were covered by the Mississippi Tort Claims Act because under Miss. Code Ann. §11-46-3(1), the legislature intended for the state and its political subdivisions to be immune from suits for breach of an implied term or condition of any contract. 1704 21st Ave., Ltd v. City of Gulfport, 988 So. 2d 412, 2008 Miss. App. LEXIS 457 (Miss. Ct. App. 2008).

4. Illustrative cases.

State university’s head football coach had a viable claim for breach of the implied covenant of good faith and fair dealing against the university that was subject to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because, by its plain language, the Act applied to any claim for any breach of an implied term or condition of any contract. Jones v. Miss. Insts. of Higher Learning, 264 So.3d 9, 2018 Miss. App. LEXIS 378 (Miss. Ct. App. 2018).

When a developer sued a city, the city’s public utilities commission, and a utilities department (department) for damage to the developer’s property in installing utility lines, the developer’s contract claim failed because (1) no breach of a provision of a written contract was alleged, (2) no oral agreement allegedly breached was reflected in the minutes of a governmental body, and (3) a claim based on a breach of a contractual duty not to commit negligence was a tort claim. Kelley v. Corinth PUC, 200 So.3d 1107, 2016 Miss. App. LEXIS 36 (Miss. Ct. App.), cert. denied, — So.3d —, 2016 Miss. LEXIS 393 (Miss. 2016), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 394 (Miss. 2016), cert. denied, 203 So.3d 599, 2016 Miss. LEXIS 403 (Miss. 2016).

Trial court was correct when it granted the Mississippi Department of Transportation summary judgment on all of the property owners’ claims because all of their causes of action were barred by the design exemption; although there is a waiver of immunity for claims for money damages arising out of the State’s alleged tortious conduct, there is no such waiver of immunity for injunctive relief in this context. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

Miss. Code Ann. §11-46-3 granted immunity to the state and its political subdivisions for breach of implied term or condition of any warranty or contract. Thus, although the decedent was indeed a third-party beneficiary of the written contract between the city and the development district, her estate was not permitted to pursue claims of breach of implied terms of that contract against the city or its political subdivisions. City of Jackson v. Estate of Stewart, 908 So. 2d 703, 2005 Miss. LEXIS 298 (Miss. 2005).

In a driver’s suit against a county for failing to install warning signs near a curve, the evidence was sufficient to support a verdict for the county; compliance with the Manual on Uniform Traffic Control Devices was not conclusive as to the standard of care. Donaldson v. Covington County, 846 So. 2d 219, 2003 Miss. LEXIS 133 (Miss. 2003).

Although the “interim” version of Miss. Code Ann. §11-46-3 (Supp. 1993) was in effect at the time of the police officer’s automobile accident with plaintiff, the immunity exception provided in subsection (3) of that section was inapplicable because the operation and maintenance of a police department was not a function of proprietary nature; thus, the city was entitled to summary judgment on the issue of sovereign immunity. Gale v. Thomas, 759 So. 2d 1150, 1999 Miss. LEXIS 379 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

OPINIONS OF THE ATTORNEY GENERAL

Municipality does not have authority to waive immunity set forth in Section 11-46-1, et seq., by agreeing to indemnify railroad for claims; municipality does not have authority to agree to indemnify railroad for losses relating to use of license or arising from same location; city has authority to maintain shrubbery and vegetation on municipal property, but does not have authority to maintain shrubbery and vegetation on private property, such as railroad right-of-way. Scott Nov. 3, 1993, A.G. Op. #93-0727.

A nonprofit corporation established by a regional housing authority pursuant to §43-33-11(i) is excluded from the provisions of the Mississippi Tort Claims Act. McArty, April 9, 1999, A.G. Op. #99-0150.

A for-profit corporation established by a nonprofit corporation which has been established by a regional housing authority pursuant to §43-33-11(i) is excluded from the provisions of the Mississippi Tort Claims Act. McArty, April 9, 1999, A.G. Op. #99-0150.

RESEARCH REFERENCES

ALR.

Governmental liability for failure to post highway deer crossing warning signs. 59 A.L.R.4th 1217.

State’s liability for personal injuries from criminal attack in state park. 59 A.L.R.4th 1236.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents’ custody. 60 A.L.R.4th 942.

When is federal agency employee independent contractor, creating exception to United States waiver of immunity under Federal Tort Claims Act ( 28 U.S.C.S. § 2671). 166 A.L.R. Fed. 187.

Am. Jur.

51 Am. Jur. 2d (Rev), Limitation of Actions, §§ 72, 301.

57 Am. Jur. 2d, Municipal, County, School, and State Tort Liability, §§ 44, 45 et seq.

64 Am. Jur. 2d, Public Works and Contracts, §§ 111 et seq.

63C Am. Jur. 2d, Public Officers and Employees, §§ 292 et seq.

72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 91- 93, 128.

19 Am. Jur. POF2d p 583, Governmental Entity’s Liability for Injuries caused by Negligently Released Individual.

CJS.

81A C.J.S., States §§ 474 et seq.

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

§ 11-46-5. Waiver of immunity; course and scope of employment; presumptions.

  1. Notwithstanding the immunity granted in Section 11-46-3, or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity in any such case shall be waived only to the extent of the maximum amount of liability provided for in Section 11-46-15.
  2. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.
  3. For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.
  4. Nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.

HISTORY: Laws, 1984, ch. 495, § 3; reenacted and amended, Laws, 1985, ch. 474, § 3; reenacted and amended, Laws, 1986, ch. 438, § 2; Laws, 1987, ch. 483, § 2; Laws, 1988, ch. 442, § 2; Laws, 1989, ch. 537, § 2; Laws, 1990, ch. 518, § 2; Laws, 1991, ch. 618, § 2; Laws, 1992, ch. 491 § 4, eff from and after passage (approved May 12, 1992).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Cross References —

Immunity of vocational rehabilitation agency for the blind from suit for damages arising out of the operation of the agency’s motor vehicles, see §37-33-55.

Repeal of provisions requiring motor vehicle liability insurance on department of human service’s vehicles on date sovereign immunity of state is waived as provided in this section, see §37-33-55.

Federal Aspects—

Eleventh Amendment to the Constitution of the United States, see USCS Const. Amend. 11.

JUDICIAL DECISIONS

1. In general.

2. Applicability of waiver.

3. Course and scope of employment.

4. Evidence sufficient to prove liability.

5. Evidence insufficient to prove liability.

6. Employee.

7. Waiver of immunity defense.

8. Immunity.

1. In general.

Hospital was immune from a physician’s defamation claim and IIED claim to the extent it referenced malicious conduct. O'Hea v. George Reg'l Health & Rehab. Ctr., 276 So.3d 1266, 2018 Miss. App. LEXIS 627 (Miss. Ct. App. 2018), cert. denied, 276 So.3d 658, 2019 Miss. LEXIS 274 (Miss. 2019).

In a case arising from a failure to renew an employment contract, an individual defamation claim against an alderman was barred by the one-year statute of limitations, and an allegation of continued slander “throughout the year” was insufficient to state an actionable claim within the limitations period. Moreover, the city was immune from liability on the defamation claim. Williams v. City of Belzoni, 229 So.3d 171, 2017 Miss. App. LEXIS 126 (Miss. Ct. App. 2017).

City was immune from a former municipal judge’s claims for defamation, slander, and intentional infliction of emotional distress. Jones v. City of Hattiesburg, 228 So.3d 816, 2017 Miss. App. LEXIS 14 (Miss. Ct. App.), cert. denied, 229 So.3d 118, 2017 Miss. LEXIS 372 (Miss. 2017).

Contractor’s claim against a county engineer in his individual capacity for acts outside the scope of his employment were not subject to the presuit notice requirements of the Tort Claims Act because the claim was for tortious interference with a contract, which required proof of malice as an essential element. Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., serves to provide immunity from suit to the State of Mississippi and its political subdivisions; however, the MTCA waives immunity for claims for money damages arising out of the torts of government entities and employees while acting within the course and scope of their employment to the extent set forth in the MTCA. Swindle v. Neshoba County Sch. Dist., 137 So.3d 869, 2013 Miss. App. LEXIS 574 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 235 (Miss. 2014).

Where plaintiff parent sued defendant school district in state court alleging her child was sexually assaulted at school and obtained a judgment under the Mississippi Tort Claims Act, her later claims in federal court were properly held as barred due to res judicata; while school districts’ sources of funding under Miss. Code Ann. §37-45-21,37-47-1 et seq., Miss. Code Ann. §37-57-1, Miss. Code Ann. §37-59-3, and Miss. Code Ann. §37-151-7 were equally divided between local school districts and the state under Miss. Code Ann. §11-46-7, Miss. Code Ann. §11-46-16(2), and Miss. Code Ann. §11-46-17(2), any judgment against the school district would be paid through the Tort Claims Fund and excess liability insurance, and thus, the school district was not considered an arm of the state entitled to Eleventh Amendment immunity as Miss. Code Ann. §11-46-5(1) permitted school districts to be sued. Black v. N. Panola Sch. Dist., 461 F.3d 584, 2006 U.S. App. LEXIS 21259 (5th Cir. Miss. 2006).

Finding that a city was not liable for a citizen’s injuries under Miss. Code Ann. §11-46-5(2) was reversed because the police acted with malice when they responded to a domestic disturbance call; a citizen was arrested for resisting arrest and disorderly conduct, was handcuffed and in submission, and one officer ground the citizen’s face into the concrete garage floor, causing his teeth to break. The court held that the circuit court properly found that the immunity provisions of Miss. Code Ann. §§93-21-27 and93-21-28 pertaining to domestic abuse incidents did not apply. City of Jackson v. Calcote, 910 So. 2d 1103, 2005 Miss. App. LEXIS 49 (Miss. Ct. App. 2005).

In a wrongful death suit, as Miss. Code Ann. §11-46-9(1)(m) applied to any non-intentional/non-criminal acts alleged to have been committed upon a deceased inmate by a sheriff and/or his deputies in the course and scope of their employment, the trial court correctly dismissed claims alleging negligent acts by defendants and properly left an assault claim viable; however, it erred by dismissing other counts that alleged intentional criminal acts, as pursuant to Miss. Code Ann. §§11-46-5(2),11-46-7(2), these claims remained viable under the wrongful death statute, Miss. Code Ann. §11-7-13. Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Dismissal of a minor student’s suit against a school district and others over an alleged sexual assault by male students was affirmed, where the trial court’s finding of no causation in fact, as the student failed to show she had been sexually assaulted, and that the district met its duty to use ordinary care to protect students from harm, were supported by the record. T.K. v. Simpson County Sch. Dist., 846 So. 2d 312, 2003 Miss. App. LEXIS 470 (Miss. Ct. App. 2003).

Because the parents failed to support their contention that Miss. Code Ann. §11-46-5 superseded the specific types of immunity set forth in Miss. Code Ann. §11-46-9, failure to cite legal authority in support of an issue was a procedural bar on appeal. Webb v. DeSoto County, 843 So. 2d 682, 2003 Miss. LEXIS 186 (Miss. 2003).

School district was “political subdivision” of state and thus was protected by sovereign immunity from negligence suit arising from incident on August 26, 1993, after effective date of statute restoring sovereign immunity for state and its political subdivisions, but before effective date of statute largely waiving such immunity for political subdivisions. Gressett by & Through Gressett v. Newton Separate Mun. Sch. Dist., 697 So. 2d 444, 1997 Miss. LEXIS 326 (Miss. 1997).

While decision to replace bridge with culvert on county road was discretionary one to which qualified immunity attached, fact issue existed as to whether county supervisor who determined that replacement was necessary, determined size of culvert needed, and supervised installation of culvert substantially exceeded his authority or was so grossly negligent that his action could be described as constructively intentional such that he was deprived of immunity, precluding summary judgment for supervisor on motorist’s personal injury claim. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

2. Applicability of waiver.

Based on the clear language of Miss. Code Ann. §11-46-5(2), the Supreme Court of Mississippi holds the Mississippi Tort Claims Act does not apply to a malicious-prosecution claim against a governmental entity and its employees in their official capacity. Univ. of Miss. Med. Ctr. v. Oliver, 235 So.3d 75, 2017 Miss. LEXIS 339 (Miss. 2017).

Trial court was correct when it granted the Mississippi Department of Transportation summary judgment on all of the property owners’ claims because all of their causes of action were barred by the design exemption; although there is a waiver of immunity for claims for money damages arising out of the State’s alleged tortious conduct, there is no such waiver of immunity for injunctive relief in this context. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

To the extent the parents’ and student’s claim for intentional infliction of emotional distress (as a result of alleged repeated failure to protect the student from bullying) is based on malicious conduct, it was not barred by the Mississippi Tort Claims Act as to the individual school district officials and immunity was not waived as to the school district. R.S. v. Starkville Sch. Dist., 2013 U.S. Dist. LEXIS 134264 (N.D. Miss. Sept. 19, 2013).

Store patron’s 42 U.S.C.S. § 1983 and state law tort claims against the State of Mississippi, the Mississippi Department of Public Safety, the Mississippi Highway Patrol, and a state trooper, in his official capacity, in connection with the patron’s detainment for shoplifting at a store were barred under U.S. Const. Amend. XI immunity and Miss. Code Ann. §11-46-5(4); the Ex Parte Young exception did not apply because the patron was seeking monetary, not injunctive, relief. Hopkins v. Mississippi, 634 F. Supp. 2d 709, 2009 U.S. Dist. LEXIS 52686 (S.D. Miss. 2009).

Former state university student’s defamation, breach of contract, and other unspecified state-law claims against the university, a state board of trustees, and several professors were barred under U.S. Const. Amend. XI, and Miss. Code Ann. §11-46-5 did not waive such immunity because the student’s suit was brought in federal court. Washington v. Jackson State Univ., 532 F. Supp. 2d 804, 2006 U.S. Dist. LEXIS 97302 (S.D. Miss. 2006).

3. Course and scope of employment.

District court erred when it denied police officers’ motion for summary judgment on homeowners’ claims that the officers committed reckless infliction of emotional distress in violation of Mississippi law when they entered the wrong house during an operation to buy drugs and used force to subdue people in the house because the officers were immune from liability under the Mississippi Tort Claims Act; however, the district court did not err when it denied the officers’ motion for summary judgment on the homeowners’ claims under the Fourth Amendment to the U.S. Constitution because there were genuine issues of fact about whether the officers made reasonable efforts to identify the proper house and used excessive force. Gerhart v. Barnes, — F.3d —, 2018 U.S. App. LEXIS 6042 (5th Cir. Miss. Mar. 12, 2018), op. withdrawn, sub. op., 724 Fed. Appx. 316, 2018 U.S. App. LEXIS 10626 (5th Cir. Miss. 2018).

City enjoyed police-protection immunity because when an accident wreck occurred a police officer had been engaged in the performance of police-protection activities, responding to a call about an unconscious person; the officer had been remiss but not reckless as he drove through a parking lot, and because his actions did not rise above simple negligence, police-protection immunity applied. City of Clinton v. Tornes, 252 So.3d 34, 2018 Miss. LEXIS 371 (Miss. 2018).

In a Mississippi Tort Claims Act case filed against the town and the chief of police resulting from the chief slapping plaintiff on her bottom while in the workplace, summary judgment was properly granted and her claim against the town for the failure to properly train and/or supervise the chief was properly dismissed because plaintiff failed to provide any legal authority that the town was required to provide training in addition to that training statutorily required by the Mississippi Law Enforcement Training Academy; the town nonetheless provided the chief with some local training before and after the incident; and the chief acted outside the course and scope of his law-enforcement duties when he committed the simple-assault. Harris v. Town of Woodville, 196 So.3d 1121, 2016 Miss. App. LEXIS 477 (Miss. Ct. App. 2016).

In a case in which property owners alleged that a county supervisor, a contractor, and a subcontractor engaged in a scheme to profit from a debris-removal contract between a county and the contractor by not paying the property owners for providing a dumpsite, the property owners were not required to give the county supervisor notice of their claims because the property owners alleged that the county supervisor’s conduct amounted to fraud and malice and such conduct was outside the scope of the county supervisor’s employment. Bradley v. Kelley Bros. Contrs., Inc., 117 So.3d 331, 2013 Miss. App. LEXIS 340 (Miss. Ct. App. 2013).

Where a teacher was terminated for accessing confidential student information, the teacher’s malicious interference with employment claim survived because, regarding presuit notice under the Mississippi Torts Claims Act, the superintendent did not address the Zumwalt decision in rebuttal or attempt to distinguish it, and the determination of whether the superintendent acted in bad faith and “without right or justifiable cause” presented a fact issue. Dearman v. Stone County Sch. Dist., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 37489 (S.D. Miss. Mar. 21, 2014).

Plaintiff VA patient conceded that a vascular surgeon was a state employee, and despite the patient’s arguments to the contrary, the court found that there was no genuine issue of material fact that at the pertinent time, the surgeon was acting within the course and scope of his duties as a state employee, under Miss. Code Ann. §§11-46-5(3),11-46-7(7), and, thus, immune under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. His involvement with the patient was solely by virtue of his being on-call pursuant to his employment with the university and its relationship to the VA facility. Creel v. United States, 512 F. Supp. 2d 574, 2007 U.S. Dist. LEXIS 39306 (S.D. Miss. 2007), rev'd, 598 F.3d 210, 2010 U.S. App. LEXIS 4252 (5th Cir. Miss. 2010).

Summary judgment in favor of the driver was affirmed because there was no issue of material fact that the driver, by running a stop sign, was not acting outside the course and scope of her employment with the governmental entity, and it was undisputed that the claimants did not comply with the one year statute of limitations that accompanied actions under the Mississippi Tort Claims Act. Jackson v. Hodge, 911 So. 2d 625, 2005 Miss. App. LEXIS 647 (Miss. Ct. App. 2005).

Although a trial court had not erred when it held that a city was not liable for the acts of two police officers during and after an arrest of an African-American male because the officers had acted beyond the scope of their employment, the court erred when it found the city liable because it had negligently supervised the officers. There was not a scintilla of evidence presented to indicate that the city had any policy which encouraged the type of activity that the officers engaged in and there was no factual support for the factual holding that the city was deliberately indifferent to the rights of African-Americans. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

In the patient’s suit against the doctor and the state hospital for the death of the patient’s unborn child, the Miller factors were more than sufficient to determine the status of physicians working for state hospitals, and the state hospital’s disclaimer of liability for the doctor’s acts did not change the legal status of the doctor, especially when the state hospital had admitted that the doctor was its employee. Thus, the trial court properly determined that the doctor was shielded from liability under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1-23. Wright v. Quesnel, 876 So. 2d 362, 2004 Miss. LEXIS 801 (Miss. 2004).

Where a deputy assaulted an individual in attempting to force the individual to sit for a casino security photograph, the deputy was acting for the casino, and not in his official capacity for the county, and the deputy was not entitled to immunity. Kirk v. Crump, 886 So. 2d 741, 2004 Miss. App. LEXIS 613 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1384 (Miss. 2004).

Dismissal of an inmate’s claim against the employees of the Missouri Department of Corrections was proper where the employees were acting within the course and scope of their employment; the inmate’s negligence action was barred by the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq.,11-46-5. Whitt v. Gordon, 872 So. 2d 71, 2004 Miss. App. LEXIS 56 (Miss. Ct. App. 2004).

Because a public school coach’s actions at a fund-raiser where a plaintiff was injured were performed not for his own benefit but for the school’s, the trial court properly held that he had acted in the scope of his employment and was thus immune from suit under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq. Singley v. Smith, 844 So. 2d 448, 2003 Miss. LEXIS 167 (Miss. 2003).

Proof by a preponderance of the evidence is necessary to overcome the presumption created by Miss. Code Ann. § 11- 46-5 that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment. Singley v. Smith, 844 So. 2d 448, 2003 Miss. LEXIS 167 (Miss. 2003).

An employee can be found to be acting outside the course and scope of employment if acting with malice. Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 2001 Miss. LEXIS 84 (Miss. 2001).

A county sheriff was acting in his official capacity when he responded to an emergency call at a residence and eventually shot a suspect; the plaintiff failed to offer any evidence to suggest that the sheriff was not acting as an employee of the county; and there was a wealth of evidence to show that the sheriff acted in his official capacity. Holmes v. Defer, 722 So. 2d 624, 1998 Miss. LEXIS 530 (Miss. 1998), overruled, Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999).

Where the plaintiff sued the defendant city for false arrest, subsection (2) did not bar the city’s liability. Foster v. Noel, 715 So. 2d 174, 1998 Miss. LEXIS 270 (Miss. 1998).

4. Evidence sufficient to prove liability.

In a child’s suit against the Mississippi Department of Human Services (DHS), failure to investigate a child’s allegations of sexual abuse by an employee of a youth care facility was a ministerial act for which DHS could be held liable. Miss. Dep't of Human Servs. v. S.W., 974 So. 2d 253, 2007 Miss. App. LEXIS 503 (Miss. Ct. App. 2007).

5. Evidence insufficient to prove liability.

Caucasian retired school principal’s intentional infliction of emotional distress claim, arising from her alleged constructive discharge, was based on malicious conduct, so the School District was immune from liability. Idom v. Natchez-Adams Sch. Dist., 115 F. Supp. 3d 792, 2015 U.S. Dist. LEXIS 91321 (S.D. Miss. 2015).

Finding against the student in her action against a state university and a professor after she suffered a third-degree burn at an iron pour demonstration was improper under Miss. Code Ann. §11-46-9(1)(d) because the university was not protected by discretionary function immunity and was liable for the professor’s negligence pursuant to the waiver of sovereign immunity codified at Miss. Code Ann. §11-46-5; it was difficult to fathom how the professor’s failure to put down dry sand before the pour involved a policy judgment of a social, political, or economic nature. Pritchard v. Von Houten, 960 So. 2d 568, 2007 Miss. App. LEXIS 42 (Miss. Ct. App.), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 391 (Miss. 2007).

When a teacher’s aide was escorting an autistic child to his classroom, the child became agitated while the aide continued to move him through the hallway. The child suffered bruises as a result of the teacher’s aide’s fully sensible attempts to restrain him, and no treatment or medication was warranted or prescribed for the bruises; the aide’s restraint of the child constituted control and discipline under Miss. Code Ann. §37-11-57, and the circuit court properly applied Miss. Code Ann. §11-46-9(1)(x) in finding that said actions did not constitute wanton and willful conduct to allow the parents to recover damages. Pigford v. Jackson Pub. Sch. Dist., 910 So. 2d 575, 2005 Miss. App. LEXIS 90 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 545 (Miss. 2005).

Officer didn’t show malice in an arrest in which the arrestee allegedly suffered a sprained wrist, and was immune from liability. The district, as well, was immune from from liability. Pearl River Valley Water Supply Dist. v. Bridges, 878 So. 2d 1013, 2004 Miss. App. LEXIS 225 (Miss. Ct. App. 2004).

Primary issue was whether the physicians were acting as employees of the University of Mississippi Medical Center (UMMC), or whether they were independent contractors for purposes of immunity or liability, and although the physicians did wear two hats, because they were entitled to engage, to an extent, in separate private practice, the appellate court, applying the standard of Miller v. Meeks, held that the State exercised reasonable control over the physicians, including the power to terminate the physicians’ contract, the uncontroverted evidence was that the physicians were acting as employees of UMMC at the time of the subject surgery on the complaining patient, and pursuant to Mississippi’s former sovereign immunity law, Miss. Code Ann. §11-46-7(2), the physicians were immune from liability. Brown v. Warren, 858 So. 2d 168, 2003 Miss. App. LEXIS 965 (Miss. Ct. App. 2003).

Where an individual worked for the Mississippi Bureau of Narcotics making drug buys, and was caught in the crossfire between a dealer and a Bureau officer, all the individual was able to show with regard to his negligence claim, was that the Bureau and its agents made a series of challengeable choices, from the level of training before sending an officer on a drug buy, to the directions given that officer; bad judgment; however, was insufficient for liability where the individual offered no evidence to meet the evidentiary burden of the reckless disregard standard. Lippincott v. Miss. Bureau of Narcotics, 856 So. 2d 465, 2003 Miss. App. LEXIS 282 (Miss. Ct. App. 2003).

6. Employee.

Although a patient alleged that he was injured by the negligence of a doctor who was an independent contractor of a hospital, the Mississippi Tort Claims Act provided immunity to the state and its political subdivisions, such as the hospital, for the negligence of its independent contractors. Therefore, the trial court properly entered summary judgment in favor of the hospital. Brown v. Delta Reg'l Med. Ctr., 997 So. 2d 195, 2008 Miss. LEXIS 498 (Miss. 2008).

Where a doctor working in partnership with a community hospital was sued for medical malpractice, the trial court determined that he was an employee of the community hospital for purposes of immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-5. The partnership was an “instrumentality” of the community hospital and was entitled to the protections, limitations and immunities of the MTCA. Estate of Grimes v. Warrington, 982 So. 2d 365, 2008 Miss. LEXIS 101 (Miss. 2008).

7. Waiver of immunity defense.

State university’s head football coach had a viable claim for breach of the implied covenant of good faith and fair dealing against the university that was subject to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because malice was not an essential element of the claim. Jones v. Miss. Insts. of Higher Learning, 264 So.3d 9, 2018 Miss. App. LEXIS 378 (Miss. Ct. App. 2018).

A doctor’s participation in a medical malpractice action for eleven years, coupled with his failure to pursue the immunity affirmative defense under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1, et seq., constituted a waiver of such defense. Aikens v. Whites, 8 So.3d 139, 2008 Miss. LEXIS 481 (Miss. 2008).

8. Immunity.

Under the statute, the city possessed immunity from the employee’s slander claim, as well as to the claims alleging malicious conduct by another city worker. Mark v. City of Hattiesburg, — So.3d —, 2019 Miss. App. LEXIS 2 (Miss. Ct. App. Jan. 8, 2019).

Summary judgment was properly granted to the medical center defendants on the fraud, misrepresentation, civil conspiracy, and slander claim where the center was immune from those intentional tort claims. Bissette v. Univ. of Miss. Med. Ctr., — So.3d —, 2019 Miss. App. LEXIS 303 (Miss. Ct. App. June 25, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Municipality does not have authority to waive immunity set forth in Section 11-46-1, et seq., by agreeing to indemnify railroad for claims; municipality does not have authority to agree to indemnify railroad for losses relating to use of license or arising from same location; city has authority to maintain shrubbery and vegetation on municipal property, but does not have authority to maintain shrubbery and vegetation on private property, such as railroad right-of-way. Scott Nov. 3, 1993, A.G. Op. #93-0727.

Members of Foster Care Review Board enjoy public official immunity for any of their acts arising out of and within course and scope of their duties on Board pursuant to Section 11-46-9 provided that conduct does not constitute fraud, malice, libel, slander, defamation or criminal offense. Tardy, Jan. 5, 1994, A.G. Op. #93-0972.

RESEARCH REFERENCES

ALR.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body. 65 A.L.R.2d 1278.

Immunity of police or other law enforcement officer from liability in defamation action. 100 A.L.R.5th 341.

Liability of municipal corporation or other governmental entity for injury or death caused by action or inaction of off-duty police officer. 36 A.L.R.5th 1.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student. 85 A.L.R.5th 301.

When is federal agency employee independent contractor, creating exception to United States waiver of immunity under Federal Tort Claims Act ( 28 U.S.C.S. § 2671). 166 A.L.R. Fed. 187.

Am. Jur.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal, School, and State Tort Liability, Forms 1 et seq.

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Constitutional Law – Fourth Amendment – The Warrantless Use of Thermal Imaging Technologies Is Unconstitutional, 71 Miss. L.J. 325, Fall, 2001.

§ 11-46-6. Repealed.

Repealed by Laws of 1992 Special Session, ch. 3, § 2, eff from and after passage (approved September 16, 1992).

[Laws, 1987, ch. 483, § 3; Laws, 1988, ch. 442, § 3; Laws, 1989, ch. 537, § 3; Laws, 1990, ch. 518, § 3; Laws, 1991, ch. 618, § 3; Laws, 1992, ch. 491, § 5]

Editor’s Notes —

Former §11-46-6 prescribed the claims and causes of action to which Chapter 46, Title 11, Miss. Code of 1972 applied.

§ 11-46-7. Exclusiveness of remedy; joinder of government employee; immunity for acts or omissions occurring within course and scope of employee’s duties; provision of defense for and payment of judgments or settlements of claims against employees; contribution or indemnification by employee.

  1. The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
  2. An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.
  3. From and after July 1, 1993, as to the state, from and after October 1, 1993, as to political subdivisions, and subject to the provisions of this chapter, every governmental entity shall be responsible for providing a defense to its employees and for the payment of any judgment in any civil action or the settlement of any claim against an employee for money damages arising out of any act or omission within the course and scope of his employment; provided, however, that to the extent that a governmental entity has in effect a valid and current certificate of coverage issued by the board as provided in Section 11-46-17, or in the case of a political subdivision, such political subdivision has a plan or policy of insurance and/or reserves which the board has approved as providing satisfactory security for the defense and protection of the political subdivision against all claims and suits for injury for which immunity has been waived under this chapter, the governmental entity’s duty to indemnify and/or defend such claim on behalf of its employee shall be secondary to the obligation of any such insurer or indemnitor, whose obligation shall be primary. The provisions of this subsection shall not be construed to alter or relieve any such indemnitor or insurer of any legal obligation to such employee or to any governmental entity vicariously liable on account of or legally responsible for damages due to the allegedly wrongful error, omissions, conduct, act or deed of such employee.
  4. The responsibility of a governmental entity to provide a defense for its employee shall apply whether the claim is brought in a court of this or any other state or in a court of the United States.
  5. A governmental entity shall not be entitled to contribution or indemnification, or reimbursement for legal fees and expenses from its employee unless a court shall find that the act or omission of the employee was outside the course and scope of his employment. Any action by a governmental entity against its employee and any action by an employee against the governmental entity for contribution, indemnification, or necessary legal fees and expenses shall be tried to the court in the same suit brought on the claim against the governmental entity or its employee.
  6. The duty to defend and to pay any judgment as provided in subsection (3) of this section shall continue after employment with the governmental entity has been terminated, if the occurrence for which liability is alleged happened within the course and scope of duty while the employee was in the employ of the governmental entity.
  7. For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.
  8. Nothing in this chapter shall enlarge or otherwise adversely affect the personal liability of an employee of a governmental entity. Any immunity or other bar to a civil suit under Mississippi or federal law shall remain in effect. The fact that a governmental entity may relieve an employee from all necessary legal fees and expenses and any judgment arising from the civil lawsuit shall not under any circumstances be communicated to the trier of fact in the civil lawsuit.

HISTORY: Laws, 1984, ch. 495, § 5; reenacted and amended, Laws, 1985, ch. 474, § 4; reenacted and amended, Laws, 1986, ch. 438, § 3; Laws, 1987, ch. 483, § 4; Laws, 1988, ch. 442, § 4; Laws, 1989, ch. 537, § 4; Laws, 1990, ch. 518, § 4; Laws, 1991, ch. 618, § 4; Laws, 1992, ch. 491 § 6; Laws, 1993, ch. 476, § 3, eff from and after passage (approved April 1, 1993).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Cross References —

Statute of limitations and notice requirements, see §11-46-11.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Course and scope of duties.

4. Applicability.

5. Joinder.

6. Employee’s criminal conduct.

1. In general.

Trial court erred in denying a city and a police officer summary judgment in a driver’s action alleging that the officer’s negligent actions caused an accident and that the city was vicariously liable for his operation of his vehicle because the Mississippi Tort Claims Act (MTCA) provided the exclusive remedy for the action, and under the MTCA, neither the officer nor the city could be liable. City of Clinton v. Tornes, 252 So.3d 34, 2018 Miss. LEXIS 371 (Miss. 2018).

Contractor’s claim against a county engineer in his individual capacity for acts outside the scope of his employment were not subject to the presuit notice requirements of the Tort Claims Act because the claim was for tortious interference with a contract, which required proof of malice as an essential element. Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

Under Miss. Code Ann. §11-55-7(a)-(b), although a former professor had no hope of success on his negligence-based claims against university staff who were immune, they were not entitled to fees incurred defending against those claims after the professor conceded them in his responses to summary judgment motions. Payne v. Univ. of S. Miss., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 73028 (S.D. Miss. June 5, 2015), aff'd, 681 Fed. Appx. 384, 2017 U.S. App. LEXIS 4495 (5th Cir. Miss. 2017).

Five-part test articulated by the Mississippi Supreme Court to analyze a doctor’s employment status for purposes of Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2), in a case involving a doctor who served as both a contract employee for a state hospital and also as a solo practitioner, is not applicable in cases where a doctor has no direct contractual relationship with a state hospital. Carpenter v. Reinhard, 2005 U.S. Dist. LEXIS 37207 (N.D. Miss. July 15, 2005).

Trial court did not err in dismissing the decedent’s estate’s negligence action against the circuit court clerks for failing to enroll a foreign judgment, which allegedly prevented the estate from being able execute the judgment, because according to Miss. Code Ann. §11-46-7(1) of the Mississippi Tort Claims Act (MTCA), when bringing suit against a governmental official for actions taken in his or her official capacity, a plaintiff must comply with the provisions of the MTCA. Among the provisions of the MTCA with which the estate failed to comply was the one-year statute of limitations and the notice of claim requirements of Miss. Code Ann. §11-46-11. Estate of Spiegel v. Western Sur. Co., 908 So. 2d 859, 2005 Miss. App. LEXIS 525 (Miss. Ct. App. 2005).

Absent evidence showing otherwise, state environmental agencies and their employee were immune to landowners’ claims of tortious interference with contract and business relations concerning the development of protected wetlands that belonged to the landowners. Dunston v. Miss. Dep't of Marine Res., 892 So. 2d 837, 2005 Miss. App. LEXIS 66 (Miss. Ct. App. 2005).

Deputy responding to a call from a fellow officer was not speeding and did not sound a siren because the deputy did not want there to be any accidents resulting from motorists coming to an abrupt stop, and while the deputy failed to anticipate that another vehicle might be pulling out from the blind spot in front of the truck in front of the deputy, the deputy’s decision to steer around that turning truck did not exhibit a wilful or wanton disregard for the safety of others or a willingness that harm should follow; thus, summary judgment for the county was proper. Kelley v. Grenada County, 859 So. 2d 1049, 2003 Miss. App. LEXIS 1080 (Miss. Ct. App. 2003).

Trial court abused its discretion in denying a motion by a hospital and three physicians to transfer venue in a medical malpractice action because a decedent’s heirs had failed to assert a reasonable claim of liability against certain defendants that had been dismissed from the action and because the hospital was a community hospital under the Mississippi Tort Claims Act and was entitled to venue in the county in which its governing body’s principal offices were located. Wayne Gen. Hosp. v. Hayes, 2003 Miss. LEXIS 598 (Miss. Nov. 6, 2003).

Mississippi Torts Claims Act provides the exclusive civil remedy for claims of negligence against a school district. Harris v. McCray, 867 So. 2d 188, 2003 Miss. LEXIS 553 (Miss. 2003).

Where a widow filed an action against a city, its police chief, and two police officers arising from the shooting death of her husband in his home, the trial court erred in dismissing her amended complaint as to her claim under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., because she had specified and separated the negligence-and tort-based state law claims from the constitutional tort claims brought pursuant to 42 U.S.C.S. § 1983 in her amended complaint; under Miss. Code Ann. §11-46-7(1) the MTCA operated as the exclusive remedy for the state law civil claims against the city, the chief, and the officers; and Miss. R. Civ. P. 8(a) only required that notice of a claim be given. Elkins v. McKenzie, 865 So. 2d 1065, 2003 Miss. LEXIS 582 (Miss. 2003).

Former university professor’s tortious interference with contract claim against the university that formerly employed her and its officials was covered by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq.; accordingly, the professor had to comply with the Act’s requirements as it was the exclusive remedy for the professor under Miss. Code Ann. §11-46-7(1); furthermore, the professor’s claim was time-barred under Miss. Code Ann §11-46-11(3) as it was not timely filed. Black v. Ansah, 2003 Miss. App. LEXIS 502 (Miss. Ct. App. June 3, 2003), op. withdrawn, sub. op., 876 So. 2d 395, 2003 Miss. App. LEXIS 948 (Miss. Ct. App. 2003).

City was liable for the wrongful death of a driver under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., because several officers acted in reckless disregard of the safety of the driver when they initiated a police chase in violation of department policy. City of Jackson v. Brister, 838 So. 2d 274, 2003 Miss. LEXIS 79 (Miss. 2003).

Court affirmed the trial court’s dismissal of a physician, a faculty neurosurgeon at a state medical center, from a patient’s medical malpractice action on the grounds of immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2); there was nothing to support the patient’s claim that the physician was an independent contractor because the physician performed the patient’s operation in front of a surgical resident in furtherance of the resident’s education, given that the state exercised sufficient control over the physician, and the fact that the physician exercised independent judgment in performing the operation did not make the physician an independent contractor. Clayton v. Harkey, 826 So. 2d 1283, 2002 Miss. LEXIS 295 (Miss. 2002).

In a case where a mother filed a lawsuit for damages after her son died in police custody, the trial court correctly granted summary judgment to a sheriff and a sheriff’s deputy because the mother failed to also sue the county. Conrod v. Holder, 825 So. 2d 16, 2002 Miss. LEXIS 249 (Miss. 2002).

Trial court erred in granting summary judgment on the ground of governmental immunity to two psychiatrists who worked for a medical center at a state school, where a conservator claimed that his father had suffered side effects from prescription drugs the psychiatrists prescribed, as genuine issues of material fact existed as to whether the psychiatrists were protected by immunity for their actions. Bennett v. Madakasira, 821 So. 2d 794, 2002 Miss. LEXIS 107 (Miss. 2002).

Where doctor was hired as an employee of a community hospital, which was afforded immunity protection under Miss. Code Ann. §41-13-11(5), and the doctor was found to be an employee of the hospital rather than an independent contractor, the patient was not able to proceed with a medical malpractice action against the doctor because the doctor was entitled to sovereign immunity protection. Gilchrist v. Veach, 807 So. 2d 485, 2002 Miss. App. LEXIS 79 (Miss. Ct. App. 2002).

Under the plain language of the Mississippi Tort Claims Act even though a government employee may not be personally liable for acts and omissions occurring within the course and scope of the employee’s duties, the employee’s still may be joined in the action against the employer, if the acts or omissions are ones for which the governmental entity may be liable. Stewart v. City of Jackson, 804 So. 2d 1041, 2002 Miss. LEXIS 16 (Miss. 2002).

Statute provided the exclusive civil remedy against a governmental entity and its employees for acts or omissions that give rise to a suit; any claim filed against a governmental entity and its employees had to be brought under the statutory scheme. City of Jackson v. Sutton, 797 So. 2d 977, 2001 Miss. LEXIS 259 (Miss. 2001).

Where a school district was dismissed from a motor vehicle personal injury action because it was never served with process and the plaintiffs did not appeal that dismissal, the school district employee vehicle operator was not individually liable, due to immunity granted to an employee acting within the course and scope of her employment. Cotton v. Paschall, 782 So. 2d 1215, 2001 Miss. LEXIS 25 (Miss. 2001).

No claim upon which relief could be granted was stated in an action alleging that a student was physically injured when a teacher administered excessive corporal punishment to him where it was alleged that the teacher was acting within the course and scope of her employment. Duncan v. Chamblee, 757 So. 2d 946, 1999 Miss. LEXIS 190 (Miss. 1999).

Nurses employed by a community hospital owned by a county were immune under subsection (2) of this section for alleged negligence which occurred within the course and scope of their duties. Jones v. Baptist Mem'l Hospital-Golden Triangle, Inc., 735 So. 2d 993, 1999 Miss. LEXIS 106 (Miss. 1999).

2. Constitutionality.

Statute was not in conflict with Mississippi Constitution because it did not violate due process; there was no property right to sue the State and without such a property interest there could be no due process violation. City of Jackson v. Sutton, 797 So. 2d 977, 2001 Miss. LEXIS 259 (Miss. 2001).

3. Course and scope of duties.

District court erred when it denied police officers’ motion for summary judgment on homeowners’ claims that the officers committed reckless infliction of emotional distress in violation of Mississippi law when they entered the wrong house during an operation to buy drugs and used force to subdue people in the house because the officers were immune from liability under the Mississippi Tort Claims Act; however, the district court did not err when it denied the officers’ motion for summary judgment on the homeowners’ claims under the Fourth Amendment to the U.S. Constitution because there were genuine issues of fact about whether the officers made reasonable efforts to identify the proper house and used excessive force. Gerhart v. Barnes, — F.3d —, 2018 U.S. App. LEXIS 6042 (5th Cir. Miss. Mar. 12, 2018), op. withdrawn, sub. op., 724 Fed. Appx. 316, 2018 U.S. App. LEXIS 10626 (5th Cir. Miss. 2018).

Police officer could not be held individually liable because pursuant to the Mississippi Tort Claims Act, he was acting within the course and scope of his employment when an accident occurred; thus, the officer’s presence as a named defendant stemmed only from his being a representative of the city, and a driver had no claim against the officer individually. City of Clinton v. Tornes, 252 So.3d 34, 2018 Miss. LEXIS 371 (Miss. 2018).

Employee of a state administrative agency was not personally liable when a claimant alleged that the employee falsely imprisoned the claimant in the lobby of a state office building because the employee was immune from personal liability, under Miss. Code Ann. §11-46-7(2), in that, at all relevant times, the employee was acting within the course and scope of the employee’s employment and was entitled to discretionary immunity, under Miss. Code Ann. §11-46-9(1)(d). Bell v. Miss. Dep't of Human Servs., 126 So.3d 999, 2013 Miss. App. LEXIS 826 (Miss. Ct. App. 2013).

Miss. Code Ann. §37-9-69 applied to alleged ministerial acts of negligent failure to enforce school district policies, failure to respond to bullying by other students, and failure to discipline those bullies, thus, Miss. Cod Ann. §11-46-9(1)(a), (d)’s discretionary immunity did not bar those claims; finding that the alleged conduct was ministerial rather than discretionary did not remove the absolute personal immunity afforded the individual officials for actions committed within the course and scope of employment. R.S. v. Starkville Sch. Dist., 2013 U.S. Dist. LEXIS 134264 (N.D. Miss. Sept. 19, 2013).

In judgment creditors’ suit alleging a court clerk’s negligence in approving the judgment debtors’ supersedeas bonds prevented the creditors from recovering from the bonds, as the clerk was acting in the course and scope of his employment, he was not personally liable to the creditors; therefore, he was not obligated to indemnify the surety on his performance bond. Newton County v. State ex rel. Dukes, 133 So.3d 819, 2013 Miss. App. LEXIS 332 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 8 (Miss. 2014), aff'd in part and rev'd in part, 133 So.3d 805, 2014 Miss. LEXIS 143 (Miss. 2014).

In judgment creditors’ suit alleging a court clerk’s negligence in approving the judgment debtors’ supersedeas bonds prevented the creditors from recovering from the bonds, as the clerk was acting in the course and scope of his employment when he approved the bonds, he and the county were immune from liability. Newton County v. State ex rel. Dukes, 133 So.3d 819, 2013 Miss. App. LEXIS 332 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 8 (Miss. 2014), aff'd in part and rev'd in part, 133 So.3d 805, 2014 Miss. LEXIS 143 (Miss. 2014).

Under Miss. Code Ann. §11-46-7(2), a city was not liable for its police officers’ sexual contact with a runaway child because they were not acting within the course and scope of their employment at the time they engaged in the sexual misconduct. City of Jackson v. Sandifer, 107 So.3d 978, 2013 Miss. LEXIS 60 (Miss. 2013).

Where a teacher was terminated for accessing confidential student information, the teacher’s malicious interference with employment claim survived because, regarding presuit notice under the Mississippi Torts Claims Act, the superintendent did not address the Zumwalt decision in rebuttal or attempt to distinguish it, and the determination of whether the superintendent acted in bad faith and “without right or justifiable cause” presented a fact issue. Dearman v. Stone County Sch. Dist., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 37489 (S.D. Miss. Mar. 21, 2014).

In an action filed by a husband and wife against a driver, the housing authority of a city, and the housing authority’s insurer, the trial court did not abuse its discretion in setting aside entries of default against the driver and the insurer pursuant to Miss. R. Civ. P. 55(c) because vacation of the default entry for the driver and insurer would serve the interests of justice; the trial court determined that the insurer was never a proper defendant in the lawsuit, and under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2), the driver could not be held personally liable. King v. Bunton, 43 So.3d 361, 2010 Miss. LEXIS 162 (Miss. 2010).

The trial court did not err in finding in favor of a driver in her action against a city and a police officer under the Mississippi Tort Claims Act (MTCA), because there was substantial, credible evidence to support a finding of reckless disregard for public safety on the part of the officer. The officer knew that there was a good chance that traffic would be coming through the green light of the busy intersection and she proceeded against her own red light, even though her view to the left was completely blocked by a truck; therefore, the trial court did not err in finding that the officer’s conduct went beyond mere negligence to reckless disregard and that the city was therefore not immune from liability under the MTCA. City of Jackson v. Presley, 40 So.3d 578, 2009 Miss. App. LEXIS 793 (Miss. Ct. App. 2009), rev'd, 40 So.3d 520, 2010 Miss. LEXIS 385 (Miss. 2010).

Store patron’s 42 U.S.C.S. § 1983 and state law tort claims against the State of Mississippi, the Mississippi Department of Public Safety, the Mississippi Highway Patrol, and a state trooper, in his official capacity, in connection with the patron’s detainment for shoplifting at a store were barred under U.S. Const. Amend. XI immunity and Miss. Code Ann. §11-46-5(4), but if the trooper, who was working as a store security guard during his off-duty hours, was acting in his capacity as a public employee, then to the extent the patron was alleging that the trooper acted with malice and thereby exceeded the course and scope of his employment, he could potentially be held individually or personally liable under Miss. Code Ann. §11-46-7(2), but the State of Mississippi, the Mississippi Department of Public Safety, and the Mississippi Highway Patrol could not. Hopkins v. Mississippi, 634 F. Supp. 2d 709, 2009 U.S. Dist. LEXIS 52686 (S.D. Miss. 2009).

Plaintiff VA patient conceded that a vascular surgeon was a state employee, and despite the patient’s arguments to the contrary, the court found that there was no genuine issue of material fact that at the pertinent time, the surgeon was acting within the course and scope of his duties as a state employee, under Miss. Code Ann. §§11-46-5(3),11-46-7(7), and, thus, immune under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. His involvement with the patient was solely by virtue of his being on-call pursuant to his employment with the university and its relationship to the VA facility. Creel v. United States, 512 F. Supp. 2d 574, 2007 U.S. Dist. LEXIS 39306 (S.D. Miss. 2007), rev'd, 598 F.3d 210, 2010 U.S. App. LEXIS 4252 (5th Cir. Miss. 2010).

There was substantial credible evidence to conclude that the instructor was acting within the course and scope of his employment at the time of the student’s injuries; there was nothing on the tape to indicate that the instructor was doing anything other than what he was told. Hayes v. Univ. of Southern Miss., 952 So. 2d 261, 2006 Miss. App. LEXIS 614 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 190 (Miss. 2007).

Summary judgment in favor of the driver was affirmed because there was no issue of material fact that the driver, by running a stop sign, was not acting outside the course and scope of her employment with the governmental entity, and it was undisputed that the claimants did not comply with the one year statute of limitations that accompanied actions under the Mississippi Tort Claims Act. Jackson v. Hodge, 911 So. 2d 625, 2005 Miss. App. LEXIS 647 (Miss. Ct. App. 2005).

Although a trial court had not erred when it held that a city was not liable for the acts of two police officers during and after an arrest of an African-American male because the officers had acted beyond the scope of their employment, the court erred when it found the city liable because it had negligently supervised the officers. There was not a scintilla of evidence presented to indicate that the city had any policy which encouraged the type of activity that the officers engaged in and there was no factual support for the factual holding that the city was deliberately indifferent to the rights of African-Americans. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

In plaintiff’s personal injury action against a police officer, court did not err in finding that the officer was not individually liable under Miss. Code Ann. §11-46-7(2) because the officer was acting within the course and scope of his employment at the time when he stopped plaintiff’s vehicle and drew his gun. Officer had received a call that two vehicles were speeding and that shots had been fired. Smith v. Brookhaven, 914 So. 2d 180, 2005 Miss. App. LEXIS 50 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 750 (Miss. 2005).

Officer didn’t show malice in arrest in which the arrestee allegedly suffered a sprained wrist, and was immune from liability. The district, as well, was immune from from liability. Pearl River Valley Water Supply Dist. v. Bridges, 878 So. 2d 1013, 2004 Miss. App. LEXIS 225 (Miss. Ct. App. 2004).

As a security officer who hugged and kissed appellant after arresting her for driving under the influence had not been acting within the scope of the officer’s employment with a water district, appellant’s claims against the district were properly dismissed on summary judgment. Cockrell v. Pearl River Valley Water Supply Dist., 865 So. 2d 357, 2004 Miss. LEXIS 69 (Miss. 2004).

Where the driver of a car was stopped during a police chase and then the driver gunned the engine and hit defendant police officer as the car again sped away, and the officer shot at the car, hitting plaintiff, a passenger in the car, the passenger’s state law claims of assault, battery, aggravated assault, false arrest, false imprisonment, and intentional infliction of emotional distress failed, as none of the state law claims alleged misconduct occurring outside the scope of employment under Miss. Code Ann. §11-46-7(2); rather, the officer’s actions were within the course and scope of employment. Herman v. City of Shannon, 296 F. Supp. 2d 709, 2003 U.S. Dist. LEXIS 24859 (N.D. Miss. 2003), aff'd, 104 Fed. Appx. 398, 2004 U.S. App. LEXIS 14624 (5th Cir. Miss. 2004).

Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2) barred plaintiff’s state law claims against the police chief and the officer because the wrongful arrest of plaintiff occurred in the scope and course of their employment, but did not bar the state law claims against the city under Miss. Code Ann. §11-46-9(1)(c) because the officer was acting within the scope of his employment when he acted with reckless disregard in the arrest of the mother. Craddock v. Hicks, 314 F. Supp. 2d 648, 2003 U.S. Dist. LEXIS 25637 (N.D. Miss. 2003).

State officials were immune from liability following the death of a 15-year-old who was incarcerated at the Oakley Training School, as a nurse’s misdiagnosis of meningitis as a cold virus or flu did not establish “deliberate indifference” or give rise to cause of action; under the Mississippi Tort Claims Act officials and employees had immunity, under Miss. Code Ann. §§11-46-7(2) and11-46-9-(1)(m). Mallery v. Taylor, 805 So. 2d 613, 2002 Miss. App. LEXIS 39 (Miss. Ct. App. 2002).

An employee can be found to be acting outside the course and scope of employment if acting with malice. Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 2001 Miss. LEXIS 84 (Miss. 2001).

Physicians employed by the University of Mississippi Medical Center were entitled to immunity in a medical malpractice action arising from their conduct during a 10 day period in January 1993 where (1) there was no dispute that the physicians were employees of the medical center acting within the course and scope of their employment, (2) the patient was a Medicaid patient who did not choose any particular doctor, and (3) the physicians were assigned to the patient in accordance with their duties at the medical center as a public hospital and an educational institution. Sullivan v. Washington, 768 So. 2d 881, 2000 Miss. LEXIS 193 (Miss. 2000).

Plaintiff’s assertion that the police officer was acting within the course of his employment at the time of the accident was fatal to her attempt to hold the officer personally liable because subsection (2) precludes liability for acts of an officer that occur within the course and scope of his duties. Gale v. Thomas, 759 So. 2d 1150, 1999 Miss. LEXIS 379 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Statute under which governmental entity and its employees are immune from any claim asserted by prison inmate could not be applied retroactively to bar action brought against prison physicians and other medical personnel following death of prison inmate, which occurred prior to effective date of statute, as state prison physicians and other prison personnel were not protected by sovereign immunity as it existed prior to enactment of statute. Sparks v. Kim, 701 So. 2d 1113, 1997 Miss. LEXIS 619 (Miss. 1997).

4. Applicability.

Trial court properly entered a judgment in favor of a city and its police department and found that were entitled to governmental immunity because, while a police officer was negligent in driving his vehicle when he hit a student with his patrol car in front of a school after a football game ended, his conduct did not rise to the level of reckless disregard. Crisler v. City of Crystal Springs, 171 So.3d 588, 2015 Miss. App. LEXIS 403 (Miss. Ct. App. 2015).

Ambulance service was entitled to Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., protections because the ambulance service was an instrumentality of governmental entities, specifically a city, a county, and a county general hospital, as the operations of the ambulance service were overwhelmingly controlled by the governmental entities, which owned the ambulance service. Woodall v. AAA Ambulance Serv., 161 So.3d 1071, 2015 Miss. LEXIS 188 (Miss. 2015).

Trial court was correct when it granted the Mississippi Department of Transportation summary judgment on all of the property owners’ claims because all of their causes of action were barred by the design exemption; subsection (1) is unambiguous and provides that any claim for money damages arising out of the State’s tortious acts must be brought under the Mississippi Tort Claims Act. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., provides the exclusive remedy against a governmental entity or its employee for the act or omission which has given rise to a suit. Swindle v. Neshoba County Sch. Dist., 137 So.3d 869, 2013 Miss. App. LEXIS 574 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 235 (Miss. 2014).

Injured motorist’s negligence action against a county was governed by the provisions of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., because the MTCA was the exclusive remedy for claims against governmental entities and their employees. Alexander v. Newton County, 124 So.3d 688, 2013 Miss. App. LEXIS 197 (Miss. Ct. App.), cert. denied, 123 So.3d 450, 2013 Miss. LEXIS 565 (Miss. 2013).

In a medical malpractice action, summary judgment was properly granted in favor of defendant doctor because he was employed by an entity covered by the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23 (2002), and was thus afforded the MTCA’s protection and because plaintiff patient failed to provide a timely notice of the claim under the MTCA. Because MTCA’s one-year statute of limitations had expired, the patient was barred from asserting a claim for the wrongful death of her 10-month-old son. Gorton v. Rance, 52 So.3d 351, 2011 Miss. LEXIS 62 (Miss. 2011).

Plaintiff landowner’s state law claims were based on constitutional violations of due process and governmental takings and not based or founded on torts. Therefore, any immunity under the Mississippi Tort Claims Act defendant city sought to assert was inapplicable. Pearson v. City of Louisville, 2008 U.S. Dist. LEXIS 89580 (N.D. Miss. Nov. 4, 2008).

Physician was entitled to the immunity provided under Miss. Code Ann. §11-46-7 with respect to a patient’s claim of negligence per se because there was no evidence that he acted maliciously when he evaluated her for involuntary commitment for mental health treatment; moreover, the patient did not dispute that the physician was subject immunity under §11-46-7 and did not explain how an exception for intentional torts applied to a claim for per se negligence in violating a statute or negligently providing mental care. Tebo v. Tebo, 550 F.3d 492, 2008 U.S. App. LEXIS 25296 (5th Cir. Miss. 2008).

Where a county hospital and its employee were sued in tort for injuries related to a car accident that occurred when the employee was running an errand for her employer, the dismissal of the employee from the action under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1, et seq., did not act as a release of her insurance company. The insurance company was contractually obligated to defend or indemnify the county hospital as an additional insured under the language of the insurance policy; Miss. Code Ann. §11-46-7(5) did not apply. Franklin County Mem'l Hosp. v. Miss. Farm Bureau Mut. Ins. Co., 975 So. 2d 872, 2008 Miss. LEXIS 122 (Miss. 2008).

Because defendants, two county attorneys, a sheriff, and the sheriff’s deputy, were acting in their official roles in enforcing a facially valid Virginia custody order granting custody of children to the children’s mother, immunity under Miss. Code Ann. §11-46-7(2) applied to the claims of plaintiffs, a father and his adult son who had been granted custody of the children by a Mississippi court. Blake v. Wilson, 962 So. 2d 705, 2007 Miss. App. LEXIS 252 (Miss. Ct. App. 2007).

Dismissal of the decedent’s mother’s and a student’s action against a state university resulting from a shooting on campus was appropriate where Miss. Code Ann. §11-46-7(1) provided the exclusive civil remedy against state and governmental entitles and the underlying act of the claims was the fact that the gunman shot the victims; there was no authority suggesting that the university, through an employee, had a duty to warn the victims of the dangerous conditions of the gunman’s character. Johnson v. Alcorn State Univ., 929 So. 2d 398, 2006 Miss. App. LEXIS 406 (Miss. Ct. App. 2006).

Where plaintiff parent sued defendant school district in state court alleging her child was sexually assaulted at school and obtained a judgment under the Mississippi Tort Claims Act, her later claims in federal court were properly held as barred due to res judicata; while school districts’ sources of funding under Miss. Code Ann. §37-45-21,37-47-1 et seq., Miss. Code Ann. §37-57-1, Miss. Code Ann. §37-59-3, and Miss. Code Ann. §37-151-7 were equally divided between local school districts and the state under Miss. Code Ann. §11-46-7, Miss. Code Ann. §11-46-16(2), and Miss. Code Ann. §11-46-17(2), any judgment against the school district would be paid through the Tort Claims Fund and excess liability insurance, and thus, the school district was not considered an arm of the state entitled to Eleventh Amendment immunity. Black v. N. Panola Sch. Dist., 461 F.3d 584, 2006 U.S. App. LEXIS 21259 (5th Cir. Miss. 2006).

From the time of the resident’s injury on May 7, 2001, she was under a duty to exercise due diligence in ascertaining the proper defendant; the warranty deed, which listed Forrest County as the owner of the property, was available to the resident during the entire period, had she chosen to exercise due diligence by examining it; her own failure to exercise due diligence did not excuse her duty to comply with the procedural requirements of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Davis v. Forrest Royale Apts., 938 So. 2d 293, 2006 Miss. App. LEXIS 172 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 545 (Miss. 2006).

Doctor was not immune under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2), from a patient’s malpractice suit because the doctor was an independent contractor, rather than an employee of a county hospital, where the doctor’s contract was with a private corporation that assigned her to work at the hospital and issued her paycheck. Carpenter v. Reinhard, 2005 U.S. Dist. LEXIS 37207 (N.D. Miss. July 15, 2005).

Grant of summary judgment against the patient in her medical malpractice action against the physician was proper where the physician was an employee of the state university medical center and therefore an employee of the state of Mississippi. Thus, he was immune from liability under Miss. Code Ann. §11-46-7(2) of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Owens v. Thomae, 904 So. 2d 207, 2005 Miss. App. LEXIS 401 (Miss. Ct. App. 2005).

District court should have granted the motion for judgment notwithstanding the verdict of defendants, a state university and professors, regarding the applicability of the Mississippi Tort Claims Act in a doctoral student’s action alleging that defendants’ conduct prevented her from receiving her doctoral degree because although the student claimed that the action was in contract, clearly tort claims were before the jury, and the Act’s statute of limitations had run. Univ. of S. Miss. v. Williams, 891 So. 2d 160, 2004 Miss. LEXIS 1357 (Miss. 2004).

5. Joinder.

Where a doctor working in partnership with a community hospital was sued for medical malpractice, he did nothing to assert immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., for five years until he moved for summary judgment; because he delayed and actively participated in discovery, he waived MTCA immunity. To be in compliance with the MTCA, plaintiff would have had to sue the partnership, joining the doctor under Miss. Code Ann. §11-46-7(2) in his representative capacity only, and would have been required to provide ninety-day notice pursuant to Miss. Code Ann. §11-46-11(1). Estate of Grimes v. Warrington, 982 So. 2d 365, 2008 Miss. LEXIS 101 (Miss. 2008).

6. Employee’s criminal conduct.

A city was not liable for its police officers’ sexual contact with a runaway child because the officers’ conduct constituted a criminal offense, and under Miss. Code Ann. §11-46-7(2), an employee is not considered to be acting within the course and scope of his employment and a governmental entity is not liable and is not considered to have waived immunity for any conduct of its employees if the employee’s conduct constituted any criminal offense. City of Jackson v. Sandifer, 107 So.3d 978, 2013 Miss. LEXIS 60 (Miss. 2013).

OPINIONS OF THE ATTORNEY GENERAL

Members of Foster Care Review Board enjoy public official immunity for any of their acts arising out of and within course and scope of their duties on the Board pursuant to Section 11-46-9 provided that conduct does not constitute fraud, malice, libel, slander, defamation or criminal offense. Tardy, Jan. 5, 1994, A.G. Op. #93-0972.

Under Section 11-46-7(3), a School District may not require that school district personnel who use their personal vehicles for travel in the course of their employment provide proof of liability insurance coverage on such vehicles. Sadler, February 9, 1995, A.G. Op. #95-0006.

Since Section 11-46-7 creates an exclusive remedy against the state for an employee’s negligence, and clearly states that no employee shall be held personally liable for any judgments obtained in any action brought under the Mississippi Tort Claims Act, within the course and scope of his employment, then no state employee’s insurer should ever be liable to a plaintiff for injuries sustained as a result of the employee’s negligence, thereby obviating the need for the insurer to defend or pay any judgment or settlement. Hardy, February 16, 1996, A.G. Op. #96-0053.

Staff physicians under contract with the University of Mississippi Medical Center are employees of a governmental entity of the State of Mississippi, and the Medical Center is responsible for affording them a defense and paying any judgment against them or settlement for any claim arising out of an act or omission within the course and scope of their employment, and within the limits of the Mississippi Tort Claims Act. Conerly, September 4, 1998, A.G. Op. #98-0500.

Doctors, nurses and pharmacists employed by the State Department of Health and acting within the scope and course of their employment are covered by the Tort Claims Act. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

A legal defense is provided to doctors, nurses and pharmacists employed by the State Department of Health even though the conduct is alleged to be outside the course and scope of their employment. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

There is no reason for a practitioner to obtain additional liability coverage as long as the acts are within the course and scope of his employment with the State Health Department. Amy, Jan. 17, 2003, A.G. Op. #02-0746.

In a situation in which a complainant files an action against an employer or employee for acts which the employer has determined to be outside the course and scope of the employee’s duties for the employer, the employer may choose to seek a determination of that question by the court prior to declining to provide a defense for the employee. Banks, Feb. 17, 2006, A.G. Op. 06-0047.

RESEARCH REFERENCES

ALR.

Causes of action governed by limitations period in UCC § 2-725. 49 A.L.R.5th 1.

Am. Jur.

5 Am. Jur. Proof of Facts 3d, Defamation by Employer, §§ 1 et seq.

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Checking Up On the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 Miss. L.J. 1001 (2004).

§ 11-46-8. Foster parents covered under this chapter.

Mississippi Department of Human Services licensed foster parents shall be covered under this chapter for claims made by parties other than the foster child which are based on inadequate supervision or inadequate care of the foster child on the part of the foster parent.

HISTORY: Laws, 1999, ch. 518, § 2, eff from and after July 1, 1999.

§ 11-46-9. Exemption of governmental entity from liability on claims based on specified circumstances.

  1. A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
    1. Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
    2. Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
    3. Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
    4. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
    5. Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;
    6. Which is limited or barred by the provisions of any other law;
    7. Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
    8. Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature;
    9. Arising out of the assessment or collection of any tax or fee;
    10. Arising out of the detention of any goods or merchandise by any law enforcement officer, unless such detention is of a malicious or arbitrary and capricious nature;
    11. Arising out of the imposition or establishment of a quarantine, whether such quarantine relates to persons or property;
    12. Of any claimant who is an employee of a governmental entity and whose injury is covered by the Workers’ Compensation Law of this state by benefits furnished by the governmental entity by which he is employed;
    13. Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;
    14. Arising out of any work performed by a person convicted of a crime when the work is performed pursuant to any sentence or order of any court or pursuant to laws of the State of Mississippi authorizing or requiring such work;
    15. Under circumstances where liability has been or is hereafter assumed by the United States, to the extent of such assumption of liability, including, but not limited to, any claim based on activities of the Mississippi National Guard when such claim is cognizable under the National Guard Tort Claims Act of the United States, 32 USCS 715, or when such claim accrues as a result of active federal service or state service at the call of the Governor for quelling riots and civil disturbances;
    16. Arising out of a plan or design for construction or improvements to public property, including, but not limited to, public buildings, highways, roads, streets, bridges, levees, dikes, dams, impoundments, drainage channels, diversion channels, harbors, ports, wharfs or docks, where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;
    17. Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways;
    18. Arising out of the lack of adequate personnel or facilities at a state hospital or state corrections facility if reasonable use of available appropriations has been made to provide such personnel or facilities;
    19. Arising out of loss, damage or destruction of property of a patient or inmate of a state institution;
    20. Arising out of any loss of benefits or compensation due under a program of public assistance or public welfare;
    21. Arising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances;
    22. Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;
    23. Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice;
    24. Arising out of the administration of corporal punishment or the taking of any action to maintain control and discipline of students, as defined in Section 37-11-57, by a teacher, assistant teacher, principal or assistant principal of a public school district in the state unless the teacher, assistant teacher, principal or assistant principal acted in bad faith or with malicious purpose or in a manner exhibiting a wanton and willful disregard of human rights or safety; or
    25. Arising out of the construction, maintenance or operation of any highway, bridge or roadway project entered into by the Mississippi Transportation Commission or other governmental entity and a company under the provisions of Section 65-43-1 or 65-43-3, where the act or omission occurs during the term of any such contract.
  2. A governmental entity shall also not be liable for any claim where the governmental entity:
    1. Is inactive and dormant;
    2. Receives no revenue;
    3. Has no employees; and
    4. Owns no property.
  3. If a governmental entity exempt from liability by subsection (2) becomes active, receives income, hires employees or acquires any property, such governmental entity shall no longer be exempt from liability as provided in subsection (2) and shall be subject to the provisions of this chapter.

HISTORY: Laws, 1984, ch. 495, § 6; reenacted without change, 1985, ch. 474, § 5; Laws, 1987, ch. 483, § 5; Laws, 1993, ch. 476, § 4; Laws, 1994, ch. 334, § 1; Laws, 1995, ch. 483, § 1; Laws, 1996, ch. 538, § 1; Laws, 1997, ch. 512, § 2; Laws, 2007, ch. 582, § 21; brought forward without change, Laws, 2016, ch. 367, § 3, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

On July 18, 2007, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2007, ch. 582, § 21.

Amendment Notes —

The 2007 amendment, added (1)(y); and made minor stylistic changes.

The 2016 amendment brought the section forward without change.

Federal Aspects—

Provisions of the National Guard Tort Claims Act, see 32 USCS § 715.

JUDICIAL DECISIONS

1. In general.

2. Construction with other laws.

3. Constitutionality.

4. Absence, condition, malfunction, or removal by third parties of sign, signal, warning device, etc.

5. Adequate governmental services.

6. Discretionary functions.

7. Ministerial duty.

8. Police or fire protection.

9. Immunity.

10. Waiver of immunity.

11. Illustrative cases.

1. In general.

Inmate’s claims against the Department of Corrections–for failure to release the inmate upon completion of the inmate’s sentence–were barred by Miss. Code Ann. §11-46-9(1)(m) because the inmate did not seek administrative or other relief during the three and a half months that the inmate claimed the inmate was unlawfully detained, and the inmate was unquestionably confined in the custody of the Department of Corrections when the inmate’s claims arose. Tillman v. Miss. Dep't of Corr., 95 So.3d 716, 2012 Miss. App. LEXIS 479 (Miss. Ct. App. 2012).

Miss. Code Ann. §11-46-9(1)(b) required the use of ordinary care when performing a statutory duty, and Miss. Code Ann. §11-46-9(1)(d) had no requirement of ordinary care when the act was a discretionary function; the student was not harmed or injured at school, nor was she harmed or injured during the numerous times that she skipped school and walked off campus, instead, she was injured when her bus driver took her to his home, and the duty to hire and supervise employees was necessarily and logically dependent upon judgment and discretion, and this discretionary function did not require that the school district exercise ordinary care. A.B. v. Stone County Sch. Dist., 14 So.3d 794, 2009 Miss. App. LEXIS 488 (Miss. Ct. App. 2009).

Summary judgment was properly awarded to a county board of supervisors in plaintiffs’ action to recover damages for injuries sustained after their vehicle collided with a mailbox on the shoulder of a road because plaintiffs’ evidence failed to establish that the county owned the property where the mailbox was located, as required for a claim under Miss. Code Ann. §11-46-9(1)(v). Bryant v. Bd. of Supervisors, 10 So.3d 919, 2008 Miss. App. LEXIS 595 (Miss. Ct. App. 2008).

In granting immunity from claims brought by an inmate, Miss. Code Ann. §11-46-9(1)(m) does not distinguish between those lawfully and those unlawfully within the custody of the state. Brooks v. Pennington, 995 So. 2d 733, 2007 Miss. App. LEXIS 378 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 680 (Miss. Dec. 4, 2008).

Construction project was executed by the independent contractor’s employees, and appellants presented no evidence that the Mississippi Department of Transportation’s (MDOT) employees committed any act or omission that led to the accident; the supreme court could not look to apply the immunity provisions of the Mississippi Tort Claims Act (MTCA) unless some wrong by the government was first established, and the requisite negligence could not be established. Chisolm v. Miss. DOT, 942 So. 2d 136, 2006 Miss. LEXIS 638 (Miss. 2006).

Legal principle referred to as “Frasier’s octopus” applies to an individual claim, but may or may not apply to all claims; therefore, summary judgment was improperly granted to a department of transportation on claims of negligent construction, negligent maintenance, negligent improvement, and failure to warn based on a finding of immunity under Miss. Code Ann. §11-46-9(1)(p) on a defective design claim. MacDonald v. Miss. DOT, 955 So. 2d 355, 2006 Miss. App. LEXIS 682 (Miss. Ct. App. 2006), cert. denied, 2007 Miss. LEXIS 246 (Miss. Apr. 19, 2007).

County and deputy sheriff were immune from that arose out of a traffic collision when the deputy was on his way to have spare keys made for the county’s gas pumps, which was deemed to be performance of governmental duties, and the deputy did not act with reckless disregard of a risk. At worst, the deputy’s action in pulling into an intersection was negligent. Reynolds v. County of Wilkinson, 936 So. 2d 395, 2006 Miss. App. LEXIS 245 (Miss. Ct. App. 2006).

In a case where a mental health patient suffered injuries due to a fall during an attempted escape, Miss. Code Ann. §11-46-9(1)(m) did not shield a state department of mental health from liability because it only pertained to penal institutions. Miss. Dep't of Mental Health v. Hall, 936 So. 2d 917, 2006 Miss. LEXIS 462 (Miss. 2006).

In a case where a patient in a mental health facility was injured during an attempted escape, liability was not precluded under Miss. Code Ann. §97-9-25 and Miss. Code Ann. §11-46-9(1)(f) because an attempted escape by a mental patient was not a criminal act. Miss. Dep't of Mental Health v. Hall, 936 So. 2d 917, 2006 Miss. LEXIS 462 (Miss. 2006).

Miss. Code Ann. §11-46-9(1) provided that any governmental entity and its employees who were acting within the scope of their employment were not liable for any claim unless the employee acted in reckless disregard of the safety and well-being of any person; therefore, because the driver had to show more than mere negligence to establish reckless disregard and there was no indication that the deputy acted with deliberate disregard for the safety of others when he hit her vehicle, the trial court properly granted the sheriff summary judgment in her lawsuit seeking to collect for injuries that she sustained in an accident with a sheriff’s department vehicle. Jackson v. Payne, 922 So. 2d 48, 2006 Miss. App. LEXIS 137 (Miss. Ct. App. 2006).

County was not immune from its duty to properly maintain and repair the bridge and its duty to warn of a dangerous condition where the county had been on notice for five years that the bridge needed repair and was in danger of imminent collapse; the county had more than enough money to fix the bridge, without jeopardizing funds for other road and bridge projects. Ladner v. Stone County, 938 So. 2d 270, 2006 Miss. App. LEXIS 49 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 542 (Miss. 2006).

Driver could not maintain a dangerous condition cause of action against the State Aid defendants because there was no dispute that the bridge was a county road, not a state highway. Ladner v. Stone County, 938 So. 2d 270, 2006 Miss. App. LEXIS 49 (Miss. Ct. App.), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 542 (Miss. 2006).

Inmate’s state claims were barred pursuant to Miss. Code Ann. §11-46-9(m) because the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, specifically excluded claims arising under state law while a person was lawfully incarcerated in a penal facility. Harvison v. Greene County Sheriff Dep't, 899 So. 2d 922, 2005 Miss. App. LEXIS 214 (Miss. Ct. App. 2005).

Miss. Code Ann. §11-46-9 did not provide immunity for a city that neglected to inspect or maintain a city ditch; a business was entitled to recover damages when, during a heavy rain, the ditch flooded, causing property damage. City of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60, 2005 Miss. LEXIS 219 (Miss. 2005).

Officer didn’t show malice in an arrest in which the arrestee allegedly suffered a sprained wrist, and was immune from liability. The district, as well, was immune from liability. Pearl River Valley Water Supply Dist. v. Bridges, 878 So. 2d 1013, 2004 Miss. App. LEXIS 225 (Miss. Ct. App. 2004).

Inmate was an inmate of the county jail at the time of the incident in question and appellees were exempt from liability under Miss. Code Ann. §11-46-9(1)(m); because a governmental entity was immune from all claims arising from claimants who were inmates at the time the claim arose, Miss. Code Ann. §11-46-9(1)(m) of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., did not apply to sheriff’s department employees. Love v. Sunflower County Sheriff's Dep't, 860 So. 2d 797, 2003 Miss. LEXIS 756 (Miss. 2003).

Miss. Code Ann. §11-46-9(1)(m) clearly barred the parents’ wrongful death suit against the county and individuals after the death of their son while he was incarcerated in the county detention center; since §11-46-9(1)(m) provided the decedent with no remedy, it also prevented a suit by the heirs, and the parents were unable to bring a wrongful death suit on behalf of a prisoner who died while incarcerated. Webb v. DeSoto County, 843 So. 2d 682, 2003 Miss. LEXIS 186 (Miss. 2003).

Legislature expressly stated the governmental entity would be immune from all liability from any claim of any claimant who was an inmate at the time the claim arose; an inmate remained an inmate while being transported, while participating in public service work programs or while on leave if a pass was granted. Wallace v. Town of Raleigh, 815 So. 2d 1203, 2002 Miss. LEXIS 169 (Miss. 2002).

After witnessing the deceased’s commission of several criminal offenses, which were more than misdemeanors, the officers were empowered to stop and arrest him as there was a causal nexus between the deceased’s criminal activity and the actions of the officers. Tory v. City of Edwards, 829 So. 2d 1246, 2002 Miss. App. LEXIS 395 (Miss. Ct. App. 2002).

Miss. Code Ann. §11-46-9(1)(m) preserves the government’s sovereign immunity with regard to the claims of jail inmates. Liggans v. Coahoma County Sheriff's Dep't, 823 So. 2d 1152, 2002 Miss. LEXIS 248 (Miss. 2002).

Tort Claims Act was the exclusive route for filing suit against a governmental entity and its employees; governmental entity and its employees acting within the course and scope of their employment were free of liability for a claim based upon any of the acts or omissions enumerated therein. City of Jackson v. Sutton, 797 So. 2d 977, 2001 Miss. LEXIS 259 (Miss. 2001).

Governor was not protected by sovereign immunity from resident’s action to compel public hearing pursuant to Administrative Procedures Law (APL) before submitting Capacity Assurance Plan (CAP) to federal Environmental Protection Agency (EPA). USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

Under §83-11-101(1), uninsured motorist (UM) carrier was entitled to assert city’s defense of sovereign immunity (§11-46-9) in connection with collision between fire truck and insured; insured’s statutory right to UM benefits is limited to instances in which insured would be entitled, at time of injury, to recover through legal action. Coleman v. American Mfrs. Mut. Ins. Co., 930 F. Supp. 255, 1996 U.S. Dist. LEXIS 8961 (N.D. Miss. 1996).

Decision to replace bridge with culvert on county road was discretionary function to which qualified immunity attached in personal injury action brought by motorist. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

Evidence did not establish breach of ministerial duty on part of county supervisors in their individual capacities in connection with replacement of bridge with culvert on county road; while statute required culverts to be not less than full width of crown of roadway and to have guide or warning posts on either side, there was no evidence that such minimum standards were not met. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

While decision to replace bridge with culvert on county road was discretionary one to which qualified immunity attached, fact issue existed as to whether county supervisor who determined that replacement was necessary, determined size of culvert needed, and supervised installation of culvert substantially exceeded his authority or was so grossly negligent that his action could be described as constructively intentional such that he was deprived of immunity, precluding summary judgment for supervisor on motorist’s personal injury claim. Mohundro v. Alcorn County, 675 So. 2d 848, 1996 Miss. LEXIS 301 (Miss. 1996).

Sovereign immunity cloaks all “governmental functions” a city performs. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

“Governmental functions,” which are cloaked with sovereign immunity, are those functions which a city is required to undertake. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Operation of fire department, including the supply of water to combat fires, is a governmental function, cloaked by sovereign immunity, even if the same supply provides drinking water, which is proprietary activity. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

City could not lose sovereign immunity for fire protection service in annexed area through negligence per se, where annexation ordinance did not require specific placement of water lines or mains in a certain point. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Governmental officers are immune from personal liability for fire protection decisions if the decision to provide water lines, or certain aspects of fire protection to property, is a discretionary matter involving public policy decisions. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Provision of water lines, under annexation ordinance providing for installment of water lines “when necessary and economically feasible,” was discretionary decision, for which city officials were entitled to qualified immunity. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

A city’s operation of a service garage and towing service for its vehicles was a proprietary function, and therefore the defense of sovereign immunity was not available in a wrongful death action against the city arising from a collision between the deceased’s car and a city tow truck. Thomas v. Hilburn, 654 So. 2d 898, 1995 Miss. LEXIS 230 (Miss. 1995).

For purposes of governmental immunity, the statutory framework for reporting cases of suspected child abuse includes elements of both ministerial and discretionary conduct; §43-21-353 first requires a person to make a determination of whether “reasonable cause” exists as a foundation for an incident report, which involves a duty to investigate a ministerial duty and a decision as to whether reasonable cause exists a decision involving the exercise of personal judgment and discretion; if a determination is made that there is reasonable cause to report the incident, the statute then mandates that an immediate oral report be issued to the Department of Human Services an action involving no discretion. T.M. v. Noblitt, 650 So. 2d 1340, 1995 Miss. LEXIS 15 (Miss. 1995).

When the State is sued to determine whether a state statute or action is unconstitutional, the State cannot be held liable for damages if the conduct falls within one of the exceptions found in §11-46-9. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

A county’s action seeking a determination of whether §47-5-112 [Repealed] violated any constitutional rights enjoyed by the county was not barred, since there is no sovereign immunity when the relief sought is a declaration that a particular statute or action of the State is unconstitutional. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

Sheriff’s deputies who obtained a search warrant were shielded from liability by qualified immunity since the action of obtaining the search warrant was discretionary rather than ministerial. Barrett v. Miller, 599 So. 2d 559, 1992 Miss. LEXIS 201 (Miss. 1992).

Sheriff deputies were not exercising discretionary authority in searching a home where the deputies were acting under a search warrant which gave them the authority to search and set out the parameters in which the search should be carried out; the execution of the search warrant was a ministerial act and required no discretionary decision making, aside from the places in the house to be searched, on the part of the deputies executing the warrant, and therefore the deputies who executed it were not shielded from liability by qualified immunity. Barrett v. Miller, 599 So. 2d 559, 1992 Miss. LEXIS 201 (Miss. 1992).

A sheriff’s duties with respect to operating a jail and keeping prisoners confined were discretionary in nature and, therefore, the sheriff was entitled to the protection of qualified immunity in a suit to recover for the wrongful death of a victim who was murdered by escaped inmates. McQueen v. Williams, 587 So. 2d 918, 1991 Miss. LEXIS 715 (Miss. 1991), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Any liability on the part of the Mississippi State Highway Commission for a breach of its implied warranty that plans and specifications to a contractor for resurfacing would provide a reasonably safe highway, was premised upon a tort liability arising from negligently defective plans and specifications, rather than any contractual obligation, and therefore the Commission was immune from suit. Employers Ins. of Wausau v. Mississippi State Highway Com., 575 So. 2d 999, 1990 Miss. LEXIS 894 (Miss. 1990), cert. denied, 502 U.S. 817, 112 S. Ct. 72, 116 L. Ed. 2d 46, 1991 U.S. LEXIS 4432 (U.S. 1991).

The governor’s duties under §47-5-93 and §7-1-5(c) and (d) are discretionary and, as such, the governor enjoys a qualified immunity to a civil suit for damages based on the governor’s alleged failure to perform his duties under those statutes. McFadden v. State, 542 So. 2d 871, 1989 Miss. LEXIS 65 (Miss. 1989).

Although ordinarily private individual may not maintain suit against school district to enforce zoning ordinance or to enjoin what is in essence public nuisance created by construction of school building, where construction of school building in violation of municipal offstreet parking ordinance would obstruct abutting landowner’s right of ingress and egress, landowner may obtain injunction against construction of building unless and until school district complies with parking ordinance. Robinson v. Indianola Municipal Separate School Dist., 467 So. 2d 911, 1985 Miss. LEXIS 1973 (Miss. 1985).

2. Construction with other laws.

Trial court applied the correct legal standard and did not err when it found a city was immune from liability because a police officer did cause a rear-end collision, but his conduct simply did not rise to the level of reckless disregard, and thus, the city was entitled to immunity; a driver did not present any evidence indicating that the officer was reckless in the operation of his vehicle or acted with willful or wanton conduct, which resulted in the accident. Carothers v. City of Water Valley, 242 So.3d 138, 2017 Miss. App. LEXIS 281 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 67, 2018 Miss. LEXIS 206 (Miss. 2018).

Statute governs suits against governmental entities, and, therefore, Miss. Code Ann. §63-3-205 neither controls nor affects a municipality’s grant of immunity pursuant to the Mississippi Tort Claims Act (MTCA); the statutory language of §63-3-205 is unambiguous and serves as general guidelines for traffic regulations and rules of the road, and the language neither instructs nor implies that § 63-3-205 should be read in conjunction with the provisions of the MTCA. Carothers v. City of Water Valley, 242 So.3d 138, 2017 Miss. App. LEXIS 281 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 67, 2018 Miss. LEXIS 206 (Miss. 2018).

Trial court did not err in failing to find that a police officer committed a traffic violation by tailgating a driver’s vehicle because the driver had to show more than mere negligence to establish reckless disregard and remove a city’s immunity; Miss. Code Ann. §63-3-619 applies to traffic regulations but does not address governmental immunity. Carothers v. City of Water Valley, 242 So.3d 138, 2017 Miss. App. LEXIS 281 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 67, 2018 Miss. LEXIS 206 (Miss. 2018).

Statute mandates the tax collector to act and positively imposes upon the tax collector the duty to file the tax-sale list with the chancery clerk; because there is no element of choice or judgment, the duty is ministerial, and the Mississippi Tort Claims Act affords no immunity. Booneville Collision Repair, Inc. v. City of Booneville, 152 So.3d 265, 2014 Miss. LEXIS 582 (Miss. 2014).

Mississippi Tort Claims Act (MTCA) did not provide a city and its tax collector with immunity from suit on a purchaser’s negligence claim; because the overarching purpose of filing the tax-sale list is to provide notice, and the tax collector’s failure to file the tax-sale list does not arise out of the assessment or collection of any tax or fee under the MTCA. Booneville Collision Repair, Inc. v. City of Booneville, 152 So.3d 265, 2014 Miss. LEXIS 582 (Miss. 2014).

Property owners’ negligence suit fell within the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23, because it was a claim against state agencies, but because Miss. Code Ann. §11-46-9(1)(f) of the MTCA and Miss. Code Ann. §33-15-21 of the Mississippi Emergency Management Law (MEML), Miss. Code Ann. §§33-15-1 to33-15-53, working together, the Mississippi Port Authority and Mississippi Development Authority were immune from liability stemming from emergency management activities; accordingly, the MTCA had not superseded the MEML as the two could be read in harmony. Parsons v. Miss. State Port Auth. at Gulfport, 996 So. 2d 165, 2008 Miss. App. LEXIS 705 (Miss. Ct. App. 2008).

While Miss. Code Ann. §11-7-13 allows wrongful death beneficiaries to maintain an action to recover damages as would the decedent if death had not ensued, the action is derivative and the beneficiaries stand in the position of their decedent; thus, where the decedent was a prison inmate who could not have filed an action against the Mississippi Department of Corrections or a prison superintendent because of the immunity granted in Miss. Code Ann. §11-46-9(1)(m), his wrongful death beneficiaries could not maintain a wrongful death action against those defendants. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

The purchase of liability insurance by a governmental entity under §11-46-17(4) does not limit the exclusions or exemptions enumerated in this section. Leslie v. City of Biloxi, 758 So. 2d 430, 2000 Miss. LEXIS 87 (Miss. 2000).

3. Constitutionality.

The Remedy Clause, Miss. Const. art. 3, § 24, does not conflict with sovereign immunity, does not require exceptions to sovereign immunity, and does not grant an absolute guarantee of a trial; thus, no violation of the Remedy Clause occurred when plaintiff’s action against the Mississippi Department of Corrections and a prison official for the wrongful death of an inmate was dismissed based on the immunity granted in Miss. Code Ann. §11-46-9(1)(m). Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Sovereign immunity does not violate due process; such a violation requires the infringement of a liberty or property right and as the right to sue the State has been withheld by the Mississippi Legislature, the denial of the right to sue the State or other governmental entities or employees under Miss. Code Ann. §11-46-9(1)(m) does not infringe upon any property right and does not violate due process. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Miss. Code Ann. §11-46-9(1)(m), which denies inmates the right to bring claims against the State or other governmental entities, does not violate the Equal Protection clause of the Fourteenth Amendment because there is a legitimate purpose in protecting governmental entities from claims brought by inmates. Carter v. Miss. Dep't of Corr., 860 So. 2d 1187, 2003 Miss. LEXIS 655 (Miss. 2003), cert. denied, 541 U.S. 959, 124 S. Ct. 1714, 158 L. Ed. 2d 399, 2004 U.S. LEXIS 2392 (U.S. 2004).

Subsection (1)(d) of this section does not violate either the fourteenth amendment of the U.S. Constitution or the Remedy Clause of the Mississippi Constitution, Article 3, Section 24, which guarantees that individuals shall have access to courts to redress their injuries. Jones v. Mississippi DOT, 744 So. 2d 256, 1999 Miss. LEXIS 201 (Miss. 1999).

4. Absence, condition, malfunction, or removal by third parties of sign, signal, warning device, etc.

Where a state transportation department was entitled to immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(d), for a lawsuit based on a vehicular collision occurring when a car hydroplaned in water pooled on a highway after a heavy rainstorm because road repairs were discretionary functions, the state did not waive its immunity by failing to warn of the dangerous condition because the risk of hydroplaning after inclement weather was an open and obvious danger to one exercising due care. Lee v. Miss. DOT, 37 So.3d 73, 2009 Miss. App. LEXIS 604 (Miss. Ct. App. 2009), cert. dismissed, 34 So.3d 1176, 2010 Miss. LEXIS 243 (Miss. 2010), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Placement of a warning sign at a culvert is considered a ministerial function, as set forth in Miss. Code Ann. §65-21-1. Barr v. Hancock County, 950 So. 2d 254, 2007 Miss. App. LEXIS 109 (Miss. Ct. App. 2007).

Miss. Code Ann. §11-46-9 and the corresponding case law make it clear that a governmental entity is immune from claims arising from a non-obvious dangerous condition on government property, or failure to warn of the dangerous condition, absent actual or constructive notice of the dangerous condition. Jones v. Miss. Transp. Comm'n, 920 So. 2d 516, 2006 Miss. App. LEXIS 69 (Miss. Ct. App. 2006).

Summary judgment was properly awarded to a county in a wrongful death action filed by a driver’s beneficiaries under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(v), because the beneficiaries failed to present any evidence that the accumulation of excess gravel on roads constituted a dangerous condition. Lowery v. Harrison County Bd. of Supervisors, 891 So. 2d 264, 2004 Miss. App. LEXIS 1003 (Miss. Ct. App. 2004).

Miss. Code Ann. §11-46-9(1)(w) does not require a governmental entity to actively patrol areas containing warning signs to see if a third party has removed the signs. The statute exempts the governmental entity from liability for the removal of warning signs unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice. Mitchell v. City of Greenville, 846 So. 2d 1028, 2003 Miss. LEXIS 259 (Miss. 2003).

Where precautions were taken to warn motorists of the dangerous road condition, the city was not required to actively patrol areas containing warning signs to see if a third party removed the signs, and no evidence was presented to indicate that the city knew or should have known that the sign was blown or tipped over; therefore, the city was entitled to immunity from suit and entitled to summary judgment. Mitchell v. City of Greenville, 846 So. 2d 1028, 2003 Miss. LEXIS 259 (Miss. 2003).

In a citizen’s negligence suit against the city for injuries she sustained when she fell at a construction site that had no warning devices, the city was not immune under Miss. Code Ann. §11-46-9(v), (w) because the condition was not obvious and readily apparent. City of Newton v. Lofton, 840 So. 2d 833, 2003 Miss. App. LEXIS 227 (Miss. Ct. App. 2003).

Subsection (1)(a) did not require the grant of summary judgment to the defendant county in an action arising from a single vehicle accident where the plaintiffs alleged that the county was negligent in its failure to warn of the danger at the curve because there were no advisory speed limits, warning signs or other devices at the curve where the accident occurred; the plaintiffs did not assert claims relating to legislative, judicial or administrative action or inaction and, instead, complained about an alleged dangerous condition about which there was a failure to warn and questioned whether the county had exercised ordinary care. Leflore County v. Givens, 754 So. 2d 1223, 2000 Miss. LEXIS 12 (Miss. 2000), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

In light of the plain language of subsection (1)(b), which makes qualified sovereign immunity contingent on the exercise of ordinary care, a county was not entitled to summary judgment in an action arising from a single vehicle accident where the plaintiffs alleged that the county was negligent in its failure to warn of a dangerous curve. Leflore County v. Givens, 754 So. 2d 1223, 2000 Miss. LEXIS 12 (Miss. 2000), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Subsection (1)(p) did not require the grant of summary judgment to the defendant county in an action arising from a single vehicle accident where the plaintiffs did not assert claims relating to the design, plan or construction of the road at issue and, instead, complained about an alleged dangerous condition about which there was a failure to warn and questioned whether the county had exercised ordinary care. Leflore County v. Givens, 754 So. 2d 1223, 2000 Miss. LEXIS 12 (Miss. 2000), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Subsection (1)(e) did not require the grant of summary judgment to the defendant county in an action arising from a single vehicle accident where the plaintiffs did not assert claims relating to the adoption, or failure to adopt, a statute, ordinance or regulation and, instead, complained about an alleged dangerous condition about which there was a failure to warn and questioned whether the county had exercised ordinary care. Leflore County v. Givens, 754 So. 2d 1223, 2000 Miss. LEXIS 12 (Miss. 2000), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Subsection (1)(w) of this section is an extension of an exemption subsumed in subsection (1)(d) of this section, as opposed to the establishment of a new exemption. Jones v. Mississippi DOT, 744 So. 2d 256, 1999 Miss. LEXIS 201 (Miss. 1999).

5. Adequate governmental services.

In promoting a fund-raising event to raise funds for a state school serving people who suffered from mental retardation, the Mississippi Department of Mental Health (MDMH) was immune from tort liability under Miss. Code Ann. §11-46-9 of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, for a patron’s negligence action after the patron fell down steps; the MDMH’s promotion involved social and economic policy decisions, and was a discretionary function that qualified for immunity. Miss. Dep't of Mental Health & Ellisville State Sch. v. Shaw, 45 So.3d 656, 2010 Miss. LEXIS 537 (Miss. 2010).

City was immune to a homeowner’s claim of negligence in which he claimed that the city’s negligent maintenance of his dirt road had caused damage to his wife physically and to his vehicles because: (1) the claim arose from an injury which resulted solely from the effect rain had on the road, and (2) even if one concluded that the city had a duty to purchase its own grading equipment, that was a discretionary decision for which the city had immunity under the act. Schepens v. City of Long Beach, 924 So. 2d 620, 2006 Miss. App. LEXIS 187 (Miss. Ct. App. 2006).

While subsection (1)(g) of this section provides that a school district is immune for certain policy decisions, such as how much money to allocate, it does not immunize a school district for failure to fulfill its statutory obligations; a school board is required by §37-7-301(d) to erect, repair, and equip school facilities as well as maintain, control, and care for the same, and subsection (1)(g) of this section provides a school district and its employees with protection from liability while performing or failing to perform such statutory duties so long as ordinary care is exercised. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So. 2d 1234, 1999 Miss. LEXIS 167 (Miss. 1999).

6. Discretionary functions.

Because the widower’s allegations concerning the design of the city’s ballpark, including lighting, gates, and safe ingress and egress to the park, as well as the proper hiring, training, and supervision of employees and the adoption of safety protocols for use of the park by the public were discretionary functions, the trial court properly dismissed those claims pleaded by the widower in his wrongful death action. Shutze v. City of Pearl, — So.3d —, 2019 Miss. App. LEXIS 359 (Miss. Ct. App. July 30, 2019).

Because the widower’s allegations of negligently leaving the gate unsecured, failing to maintain the gate, and failing to inspect fixtures upon the property that could create a dangerous condition were not exempt under the public-policy function test of discretionary immunity, the trial court erred by dismissing those claims. Shutze v. City of Pearl, — So.3d —, 2019 Miss. App. LEXIS 359 (Miss. Ct. App. July 30, 2019).

City was entitled to summary judgment on a driver’s claims that it acted negligently in training a police officer and entrusting him with one of its police vehicles because the driver sought to hold the city liable for its exercise of a discretionary function, actions that were clearly immune under subsection (1)(d). City of Clinton v. Tornes, 252 So.3d 34, 2018 Miss. LEXIS 371 (Miss. 2018).

Circuit court erred in granting the motions filed by a county board of supervisors and a city to dismiss a driver’s personal injury action based on discretionary-function immunity because the driver alleged a simple act of negligence, where the allegedly tortious act was a construction crew’s alleged failure to barricade or warn against the significant drop-off in the road—a condition it created—and not the result of statutory noncompliance or the result of a policy decision. Wilcher v. Lincoln Cty. Bd. of Supervisors, 243 So.3d 177, 2018 Miss. LEXIS 229 (Miss. 2018).

Circuit court properly granted a city’s motion for summary judgment in an invitee’s personal injury action because the city was entitled to discretionary-function immunity where both the governmental function—the city’s ownership and holding of the premises at issue—and the activity at issue in furtherance of that function—mowing and maintaining the lawn—were discretionary, and none of the statutes cited by the invitee required or imposed an affirmative duty on the city to purchase, maintain, care, or control the property. Lowe v. City of Moss Point, 243 So.3d 753, 2017 Miss. App. LEXIS 587 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 69, 2018 Miss. LEXIS 214 (Miss. 2018).

Trial court properly granted a county convention and visitors bureau summary judgment in a visitor’s action alleging that the bureau failed to maintain a civic center’s grassy area in a safe condition because the bureau’s operation of the civic center was a discretionary function to which immunity attached; by owning and using the civic center, the bureau engaged in a function Miss. Code Ann. §17-3-29(4) authorized but did not require. Crider v. DeSoto Cnty. Convention, 201 So.3d 1063, 2016 Miss. LEXIS 322 (Miss. 2016).

Circuit court properly granted summary judgment in favor of a school district in a parent’s wrongful-death action because the district was immune from the parent’s claims, the district’s oversight of a school parking lot–where the decedent, who was riding on the trunk of a car, fell and struck her head on the parking-lot pavement–was discretionary, not ministerial. Davis v. Jones County Sch. Dist., 193 So.3d 653, 2015 Miss. App. LEXIS 632 (Miss. Ct. App. 2015).

Student’s action against a school district for failure to oversee student conduct and school safety was remanded to the trial court for the parties to present evidence in light of the new standard for determining the application of discretionary-function immunity in Brantley v. City of Horne Lake, 152 So.3d 1106 (Miss. 2014) where the school district did not waive immunity through active participation in the litigation and discovery was necessary to determine whether the school district enjoyed the right to discretionary-function immunity. Doe v. Rankin Cnty. Sch. Dist., 189 So.3d 616, 2015 Miss. LEXIS 552 (Miss. 2015).

Because the Supreme Court of Mississippi’s rules for determining discretionary-function immunity under Miss. Code Ann. §11-46-9(1)(d) (Rev. 2012) had changed drastically during the pendency of the litigation, the interests of justice demanded that the instants case be remanded for the parties to present evidence and arguments in light of the new Brantley test. City of Magee v. Jones, 161 So.3d 1047, 2015 Miss. LEXIS 190 (Miss. 2015).

Duty to maintain a sewage system is not imposed by law upon municipalities; the language of the statute explicitly leaves it to the discretion of municipalities whether and how to maintain their sewage systems, if any, and accordingly, sewage maintenance, as a general function, is discretionary. Boroujerdi v. City of Starkville, 158 So.3d 1106, 2015 Miss. LEXIS 84 (Miss. 2015).

Miss. Code Ann. §63-3-303 (Rev. 2013) allowed the Mississippi Department of Transportation, in its discretion, to determine the appropriate type, number, and location of traffic-control devices, making it immune from liability for a claim of failure to erect or maintain appropriate and reasonable signs, signals, warning devices, illumination devices, or guardrails and/or barriers despite actual or constructive notice of the absence and/or inadequate condition of the existing devices under Miss. Code Ann. §11-46-9(1)(d) (Rev. 2012). Ala. Great S. R.R. Co. v. Jobes, 156 So.3d 871, 2015 Miss. LEXIS 37 (Miss. 2015).

Miss. Code Ann. §65-1-175(3) allowed the Mississippi Department of Transportation, in its discretion, to determine the appropriate type, number, and location of protective devices at railroad crossings, making it immune from liability for failing to provide an adequate clear zone or shoulder or adequate and necessary crash cushions under Miss. Code Ann. §11-46-9(1)(d) (Rev. 2012). Ala. Great S. R.R. Co. v. Jobes, 156 So.3d 871, 2015 Miss. LEXIS 37 (Miss. 2015).

Because the act of maintaining or repairing the apartments – or failing to maintain or repair – fell under the housing authority’s duty to provide its residents a safe dwelling, it could not be said the decision to not repair or replace a light fixture was the exercise of a discretionary function; however, the housing authority was entitled to sovereign immunity because it had no actual or constructive notice of the dangerous condition of the light fixture before it fell on the tenant. Serrano v. Laurel Hous. Auth., 151 So.3d 256, 2014 Miss. App. LEXIS 661 (Miss. Ct. App. 2014).

Employee of a state administrative agency was not personally liable when a claimant alleged that the employee falsely imprisoned the claimant in the lobby of a state office building because the employee was immune from personal liability, under Miss. Code Ann. §11-46-7(2), in that, at all relevant times, the employee was acting within the course and scope of the employee’s employment and was entitled to discretionary immunity, under Miss. Code Ann. §11-46-9(1)(d). Bell v. Miss. Dep't of Human Servs., 126 So.3d 999, 2013 Miss. App. LEXIS 826 (Miss. Ct. App. 2013).

School district was immune from liability regarding a student’s tort claims because the decision by the school district’s employees to deny the student permission to go to a rest room during a test was a discretionary function subject to immunity. Harris v. Bd. of Trustees of the Clinton Public Sch. Dist., 126 So.3d 100, 2013 Miss. App. LEXIS 762 (Miss. Ct. App. 2013).

Although a county pleaded the affirmative defense of immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., in its answer to a negligence action, the county waived the defense because the county actively participated in the litigation and the county’s two-year-and-four-month delay in pursuing the affirmative defense of immunity under Miss. Code Ann. §11-46-9(1)(d) was unreasonable and unnecessary. Alexander v. Newton County, 124 So.3d 688, 2013 Miss. App. LEXIS 197 (Miss. Ct. App.), cert. denied, 123 So.3d 450, 2013 Miss. LEXIS 565 (Miss. 2013).

Mississippi Department of Transportation (MDOT) was immune from suit under Miss. Code Ann. §11-46-9(1)(d) as Miss. Code Ann. §65-1-65 did not impose any specific directives as to the time, manner, and conditions for carrying out MDOT’s duty to maintain highways, and the duty to remove trees from the right-of-way was discretionary; MDOT was not liable for the driver’s injuries arising out of road maintenance. Little v. Miss. DOT, 129 So.3d 192, 2012 Miss. App. LEXIS 627 (Miss. Ct. App. 2012), rev'd, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Evidence supported the conclusion that the city’s refusal to extend new water service to the subdivision was based upon a perceived lack of adequate fire flow pressure in the water line, and although that perception turned out to be incorrect, even if the city’s conduct rose to the level of negligence, that did not amount to an abuse of discretion, nor did it show that the city’s decision to deny new water service was arbitrary and capricious. The developer’s evidence was insufficient to overcome the city’s entitlement to immunity under Miss. Code Ann. §§11-46-9(1)(d), (g), and (h). L&F Homes & Dev., LLC v. City of Gulfport, 2012 U.S. Dist. LEXIS 100855 (S.D. Miss. July 20, 2012), aff'd, 538 Fed. Appx. 395, 2013 U.S. App. LEXIS 16452 (5th Cir. Miss. 2013).

City was not liable for its alleged failure to properly investigate a runaway child’s claim that she had sex with a police officer, as the manner in which its police department supervised, disciplined, and regulated its officers was a discretionary function; thus, the city was immune from suit under Miss. Code Ann. §11-46-9(1)(d). City of Jackson v. Sandifer, 107 So.3d 978, 2013 Miss. LEXIS 60 (Miss. 2013).

In a premises liability action for injuries a claimant sustained when the claimant was trampled by a cow, the Mississippi Fairgrounds Commission was immune from liability under the discretionary-function exemption at Miss. Code Ann. §11-46-9(1)(d) of the Mississippi Tort Claims Act; the livestock show furthered important social, economic and political policies. Wiltshire v. Miss. Fairgrounds Comm'n, 75 So.3d 563, 2011 Miss. App. LEXIS 184 (Miss. Ct. App.), cert. denied, 73 So.3d 1168, 2011 Miss. LEXIS 549 (Miss. 2011).

Trial court erred in granting a city summary judgment in landowners’ action to recover for the damages they sustained when raw sewage flooded their homes due to blockage in the city’s sewage lines because a genuine issue of material fact existed as to whether the city violated a ministerial duty that it articulated and imposed on itself in a subdivision ordinance as to minimum-design standards and sewage pipe size; the record reflected evidence that the city breached a ministerial duty set forth in its own ordinance that contained no element of choice. Fortenberry v. City of Jackson, 71 So.3d 1211, 2010 Miss. App. LEXIS 76 (Miss. Ct. App. 2010), rev'd, 71 So.3d 1196, 2011 Miss. LEXIS 88 (Miss. 2011).

Circuit court erred in denying a school district’s motion for summary judgment as to a mother’s negligence claim because the Mississippi Tort Claims Act, Miss Code Ann. §11-46-9(1)(d), operated to shield the district and its coaches and employees from any liability for the death of her son, who allegedly suffered from heat stroke during football practice, since nothing in the record indicated that the district and/or the football coaches, or any district employee or staff member, violated any statute, ordinance, or regulation concerning conducting football practice, and the conduct at issue constituted discretionary behavior; the district’s discretionary decision to allow coaches the ability to set and conduct practices was rooted in policy because coaches know their players and had to be able to control their teams. Covington County Sch. Dist. v. Magee, 29 So.3d 1, 2010 Miss. LEXIS 45 (Miss. 2010).

State transportation department was entitled to immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(d), for a lawsuit based on a vehicular collision occurring when a car hydroplaned in water pooled on a highway after a heavy rainstorm because highway repairs were discretionary functions. Lee v. Miss. DOT, 37 So.3d 73, 2009 Miss. App. LEXIS 604 (Miss. Ct. App. 2009), cert. dismissed, 34 So.3d 1176, 2010 Miss. LEXIS 243 (Miss. 2010), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

School district was immune from suit with regard to a minor’s action seeking to recover damages after he fell from the bed of a pickup truck while being transported by another student to football practice based on the discretionary function exemption of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(d). Strange v. Itawamba County Sch. Dist., 9 So.3d 1187, 2009 Miss. App. LEXIS 240 (Miss. Ct. App. 2009).

Mississippi Transportation Commission was immune from liability under Miss. Code Ann. §11-46-9(1)(d) in a wrongful death suit alleging negligent highway maintenance and negligence in failing to install necessary traffic control devices because decisions regarding the maintenance and repair of highways and the placement of traffic control devices were discretionary matters entrusted to public officials. Because such decisions involved discretionary functions and not ministerial adherence to established policy or protocol, the discretionary decisions were subject to immunity under the Mississippi Tort Claims Act. Knight v. Miss. Transp. Comm'n, 10 So.3d 962, 2009 Miss. App. LEXIS 217 (Miss. Ct. App. 2009), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Order granting summary judgment in favor of a county’s board of supervisors with regard to a properly owner’s action for damage to his timberland was affirmed because the board was immune under Miss. Code Ann. §11-16-9(1)(d). While Miss. Code Ann. §65-21-1 set the minimum length for a culvert, it did not make the sizing and installation of a culvert ministerial; therefore, such functions were entitled to immunity under Miss. Code Ann. §11-46-9(1)(d) as a discretionary function. Fisher v. Lauderdale County Bd. of Supervisors, 7 So.3d 968, 2009 Miss. App. LEXIS 175 (Miss. Ct. App. 2009).

In action brought by a husband and wife against defendants, a city, its mayor, the chief of police, and police officers, pursuant to 42 U.S.C.S. § 1983 and state law, the court denied defendants’ motion to dismiss because the police protection and discretionary function exemptions to waiver of immunity under Miss. Code Ann. §11-46-9(1)(c), (d) did not apply; the husband was not engaged in criminal activity at the time of his arrest, so the issue regarding the applicability of §11-46-9(1)(c) was whether the officers acted in reckless disregard of the husband’s safety or well being, and it could not be said that the officers’ actions, as identified in plaintiffs’ allegations of excessive force and wrongful arrest, fell within the exemption, and if, as the husband alleged, the officers had no arguable basis for concluding they had probable cause to arrest the husband, it would seem that they had no discretion to arrest him, and in no event did the officers have discretion to use excessive force against him. McGregory v. City of Jackson, 504 F. Supp. 2d 143, 2007 U.S. Dist. LEXIS 60313 (S.D. Miss. 2007).

In an action brought by plaintiff against defendants, a city, its mayor, the chief of police, and a police officer, pursuant to 42 U.S.C.S. § 1983 and state law, asserting claims of excessive force, false arrest and false imprisonment, and various other state tort claims, the court granted defendants’ motion to dismiss for immunity pursuant to Fed. R. Civ. P. 12(b)(6) because Miss. Code Ann. §11-46-9(1)(c), (d) did not provide exceptions to the Mississippi Tort Claims Act (MTCA) waiver of immunity for plaintiff’s claims, as the court was unable to conclude on the basis of the facts alleged by plaintiff that defendants were immune under the MTCA. Spencer v. City of Jackson, 511 F. Supp. 2d 671, 2007 U.S. Dist. LEXIS 55630 (S.D. Miss. 2007).

After learning of the former professor’s affair with a student at a university where he previously taught, the decision of the former president of the university and the former vice-president of academic affairs to recommend the professor for only a one-year position necessarily involved an act of choice or judgment, as by nature the president’s and vice-president’s administrative positions at the university required them to make those types of choices and judgments regarding the faculty, and Miss. Code Ann. §37-101-15(f) provided that the executive head of the university nominate for election all subordinate employees of the university; nothing in the statute limited the discretion of the president and thus the action by the president and vice-president recommending the professor for one year’s employment instead of tenure-track, after learning of the affair with the student, was a discretionary act immune from suit under Miss. Code Ann. §11-46-9(1)(d). Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 2007 Miss. App. LEXIS 492 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 1144, 2008 Miss. LEXIS 150 (Miss. 2008).

Because defendants, two county attorneys, a sheriff, and the sheriff’s deputy, were enforcing a facially valid Virginia custody order granting custody of children to the children’s mother, it arose out of a judicial action; thus, immunity under Miss. Code Ann. §11-46-9(1)(a) applied to the claims of plaintiffs, a father and his adult son who had been granted custody of the children by a Mississippi court. Blake v. Wilson, 962 So. 2d 705, 2007 Miss. App. LEXIS 252 (Miss. Ct. App. 2007).

Because defendants, two county attorneys, a sheriff, and the sheriff’s deputy, were enforcing a facially valid Virginia custody order granting custody of children to the children’s mother, they acted with discretion and were forced to make choices that involved social, economical, or political policy alternatives; thus, immunity under Miss. Code Ann. §11-46-9(1)(d) applied to the claims of plaintiffs, a father and his adult son who had been granted custody of the children by a Mississippi court. Blake v. Wilson, 962 So. 2d 705, 2007 Miss. App. LEXIS 252 (Miss. Ct. App. 2007).

Miss. Code Ann. §65-21-1 plainly states that certain construction requirements must be met once a governmental entity determines that a culvert is needed; it only sets forth the minimum requirements to be met with regard to the construction of culverts, and any decisions made outside of those minimum requirements are discretionary functions of government. Barr v. Hancock County, 950 So. 2d 254, 2007 Miss. App. LEXIS 109 (Miss. Ct. App. 2007).

Finding against the student in her action against a state university and a professor after she suffered a third-degree burn at an iron pour demonstration was improper under Miss. Code Ann. §11-46-9(1)(d) because the university was not protected by discretionary function immunity and was liable for the professor’s negligence pursuant to the waiver of sovereign immunity codified at Miss. Code Ann. §11-46-5; it was difficult to fathom how the professor’s failure to put down dry sand before the pour involved a policy judgment of a social, political, or economic nature. Pritchard v. Von Houten, 960 So. 2d 568, 2007 Miss. App. LEXIS 42 (Miss. Ct. App.), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 391 (Miss. 2007).

Summary judgment was properly awarded to the Mississippi Transportation Commission (MTC) in appellants’ action for injuries and death resulting from a two-vehicle collision because the MTC’s duty to place warning signs was discretionary under Miss. Code Ann. §63-3-303; hence, the MTC’s failure to place warning signs was shielded from liability according to Miss. Code Ann. §11-46-9(1)(d). Willingham v. Miss. Transp. Comm'n, 944 So. 2d 949, 2006 Miss. App. LEXIS 916 (Miss. Ct. App. 2006).

State hospital was entitled to immunity from tort liability pursuant to Miss. Code Ann. §41-4-7(g) because the hospital was acting in a discretionary manner when it made placement decisions for the patient and allowed the patient to participate in a day program where the patient suffered an injury; the decisions were a matter of social policy and the hospital and its employees were thus immune from tort liability in a lawsuit filed by the patient. Dancy v. East Miss. State Hosp., 944 So. 2d 10, 2006 Miss. LEXIS 688 (Miss. 2006).

When the Mississippi Department of Mental Health enacted policies and procedures pursuant to Miss. Code Ann. §41-4-7(g), it was enacting in a discretionary fashion and was thus immune from tort liability when a patient was injured allegedly because of a placement decision that was made for him while he was committed to a state hospital. Dancy v. East Miss. State Hosp., 944 So. 2d 10, 2006 Miss. LEXIS 688 (Miss. 2006).

Officer’s actions with regard to the icy condition on the highway involved an element of choice or judgment, and therefore his decision to promptly notify the Mississippi Department of Transportation of the condition rather than remaining at the scene after the first accident was discretionary and not ministerial, and there was no statute, regulation, or police department policy that outlined how the officer should have addressed the condition; accordingly, the precise time, manner, and conditions by which the officer’s duties were to be observed were not prescribed, and therefore were left to the judgment of the officer. Willing v. Benz, 2006 Miss. App. LEXIS 873 (Miss. Ct. App. Nov. 21, 2006), sub. op., op. withdrawn, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App. 2007).

Regional housing authority’s officers were immune from tort liability based on their actions in the wake of a flood that damaged a developer’s apartment complex because their issuance of housing choice vouchers to the developer’s tenants during a declared state of emergency, although based upon their questionable reliance on erroneous statements, qualified as discretionary acts under Miss. Code Ann. 11-46-9(d). Urban Developers LLC v. City of Jackson, 468 F.3d 281, 2006 U.S. App. LEXIS 26435 (5th Cir. Miss. 2006).

Waterway district was immune from liability under Miss. Code Ann. §11-46-9 in a wrongful death case because its discretionary decisions regarding the operation of a swimming facility were grounded in public policy, there was inadequate proof regarding knowledge of a missing buoy and signs, and there could have been other causes of a drowning. Dotts v. Pat Harrison Waterway Dist., 933 So. 2d 322, 2006 Miss. App. LEXIS 504 (Miss. Ct. App. 2006).

While Miss. Code Ann. §63-3-305 contains the term “shall”, it also contains the phrase, “as they may deem necessary”, which, as state legal precedent suggests, means that a local authority’s placement of traffic control devices is a discretionary duty. Because the placement of traffic control devices, including road construction signs, is a discretionary duty, Miss. Code Ann. §11-46-9(1)(d) applies, and a county cannot be liable with regard to the placement of such signs, regardless of whether or not it abused its discretion in doing so. Dozier v. Hinds County, 379 F. Supp. 2d 834, 2005 U.S. Dist. LEXIS 15666 (S.D. Miss. 2005).

Trial court did not err in granting summary judgment to Mississippi Department of Transportation (DOT) in a wrongful death because the DOT was immune under Miss. Code Ann. §11-46-9(1)(d), failing to warn of a dangerous condition, because the placement of warning signs was a discretionary function not within the context of ordinary care. Barrentine v. Miss. DOT, 913 So. 2d 391, 2005 Miss. App. LEXIS 270 (Miss. Ct. App. 2005).

Claimants in a wrongful death action were not entitled to a remand because a non-diverse county defendant had been fraudulently joined in the cause, making removal under 28 U.S.C.S. § 1441 appropriate. The county was not responsible for the placement of stop signs at the intersection where the accident occurred, and its placement of road construction signs near the intersection was a discretional governmental function, for which the county had immunity and no duty of ordinary care under Miss. Code Ann. §11-46-9(1)(d); thus, the county had no basis for liability. Dozier v. Hinds County, 354 F. Supp. 2d 707, 2005 U.S. Dist. LEXIS 820 (S.D. Miss. 2005).

Where the victim was shot by her estranged husband the county was not liable for the failure of the justice court clerk or justice court judge to transmit the signed arrest warrant to the county sheriff’s department. The alleged conduct of both the justice court clerk and judge fell squarely within Miss. Code Ann. §11-46-9(1)(a) and the trial court properly found that sovereign immunity prevented prosecution of the injured person’s negligence based claims; moreover, the actions of said officials were discretionary and the ordinary care standard was not applicable to Miss. Code Ann. §11-46-9(1)(d). Collins v. Tallahatchie County, 876 So. 2d 284, 2004 Miss. LEXIS 798 (Miss. 2004).

Although a student suffered damages as a result of heatstroke during a high school football practice, the school district and the football coach were immune from liability under the Mississippi Tort Claims Act; acts or omissions of the coach were discretionary in nature. Harris v. McCray, 867 So. 2d 188, 2003 Miss. LEXIS 553 (Miss. 2003).

Statute did not provide immunity to the city and the driver as the discretionary act of deciding to help an invalid exit a van did not implicate any social, economic or political policy. Stewart v. City of Jackson, 804 So. 2d 1041, 2002 Miss. LEXIS 16 (Miss. 2002).

The addition of the abuse of discretion phrase into subsection (1)(d) of this section is not in derogation of the common law right and, therefore, the subsection need not be construed against any such limitation under the rules of statutory construction. L.W. v. McComb Separate Mun. Sch. Dist., 1999 Miss. LEXIS 128 (Miss. Mar. 31, 1999), op. withdrawn, sub. op., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999).

The discretionary function exemption contained in subsection (1)(d) of this section did not bar an action in which a 14 year old student who was assaulted by a fellow student alleged that the school was negligent in failing to (1) maintain a safe environment, (2) properly monitor its grounds, (3) properly supervise its students, and (4) have a route of safe departure for detention students. L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999), overruled in part, Miss. Transp. Comm'n v. Montgomery, 2011 Miss. LEXIS 609 (Miss. Oct. 20, 2011), overruled in part, Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 2012 Miss. LEXIS 96 (Miss. 2012).

7. Ministerial duty.

Circuit court erred in finding that a school district was entitled to discretionary-function immunity from a bullied student’s negligence and negligence per se claims where collectively, Miss. Code Ann. §§37-9-69,37-11-67, and37-11-69 imposed a ministerial duty on the school district to provide a safe school environment and prevent acts of bullying against students. Smith v. Leake Cnty. Sch. Dist., 195 So.3d 771, 2016 Miss. LEXIS 293 (Miss. 2016).

Examining discretionary-function immunity under Miss. Code Ann. §11-46-9(1)(d) and case law, the overarching function involved, holding students to strict account for disorderly conduct and preventing acts of bullying, is ministerial. And while Miss. Code Ann. §§37-11-67 and37-11-69 give a school district discretion as to how to prevent bullying, these statutes do not provide discretion as to whether to prevent bullying. Nor do these statutes override the ministerial statutory duty found in Miss. Code Ann. §37-9-69 to provide a safe school environment. Smith v. Leake Cnty. Sch. Dist., 195 So.3d 771, 2016 Miss. LEXIS 293 (Miss. 2016).

Mississippi Transportation Commission and the Mississippi Department of Transportation breached the ministerial duties imposed by Miss. Code Ann. §65-1-65 because the statute applied to the portion of the highway that was under construction and imposed a ministerial duty of maintenance and repair. Miss. Transp. Comm'n v. Adams, 197 So.3d 406, 2016 Miss. LEXIS 232 (Miss. 2016).

Mississippi Transportation Commission (MTC) and the Mississippi Department of Transportation (MDOT) were not entitled to discretionary-function immunity from a widow’s claims they violated Miss. Code Ann. §65-1-67 because MTC decided to abide by the prescriptions in the regulations; since one of the regulations provided that all edge lines that had been covered or removed had to be replaced with temporary stripe before work is discontinued for the day, MTC and MDOT could not assert discretion. Miss. Transp. Comm'n v. Adams, 197 So.3d 406, 2016 Miss. LEXIS 232 (Miss. 2016).

Placement and maintenance of traffic-control devices is discretionary, unless narrower duties encompassed in that function, such as placing and maintaining edge lines, have been rendered ministerial through statute or regulation. Miss. Transp. Comm'n v. Adams, 197 So.3d 406, 2016 Miss. LEXIS 232 (Miss. 2016).

Trial court did not err in finding that the Mississippi Transportation Commission (MTC) and the Mississippi Department of Transportation (MDOT) were not entitled to discretionary-function immunity under the Mississippi Tort Claims Act because a widow produced evidence that MTC and MDOT breached specific ministerial duties imposed by their duly adopted regulations. Miss. Transp. Comm'n v. Adams, 197 So.3d 406, 2016 Miss. LEXIS 232 (Miss. 2016).

Several functions and duties involved in sewage maintenance and operation are ministerial, and if a plaintiff can show that his or her injuries were caused by the government’s act or failure to act in furtherance of one or more of such ministerial functions, that plaintiff can proceed with his or her claim. Boroujerdi v. City of Starkville, 158 So.3d 1106, 2015 Miss. LEXIS 84 (Miss. 2015).

Function of maintaining a sewage system to maintain compliance with the Water Pollution Control Act Act is a ministerial function that is set within the larger discretionary function of general sewage creation and maintenance; the federal government sets the standards, and, although the states have some discretion with respect to how they will meet those standards, they have no choice but to comply. Boroujerdi v. City of Starkville, 158 So.3d 1106, 2015 Miss. LEXIS 84 (Miss. 2015).

Driver’s negligence claim regarding the Mississippi Department of Transportation’s (MDOT’s) failure to repair and maintain a highway were not barred as a matter of law by Miss. Code Ann. §11-46-9(1)(d) (Rev. 2012) where Miss. Code Ann. §65-1-65 required MDOT to maintain and repair state highways, and thus, its acts were ministerial. Ala. Great S. R.R. Co. v. Jobes, 156 So.3d 871, 2015 Miss. LEXIS 37 (Miss. 2015).

School district, which was sued by plaintiff after she tripped over a section of conduit that protruded from the surface of a driveway in front of the district’s administrative building, had a ministerial duty to repair the protruding conduit and was not entitled to discretionary immunity; accordingly, the circuit court did not err when it refused to apply the discretionary-immunity exemption of the Mississippi Tort Claims Act. Natchez-Adams Sch. Dist. v. Bruce, 2014 Miss. App. LEXIS 485 (Miss. Ct. App. Sept. 9, 2014), op. withdrawn, sub. op., — So.3d —, 2015 Miss. App. LEXIS 221 (Miss. Ct. App. Apr. 21, 2015), sub. op., 168 So.3d 1181, 2015 Miss. App. LEXIS 231 (Miss. Ct. App. 2015).

Trial court erred in granting the Department of Human Services (DHS) summary judgment on a mother’s wrongful death claim where there were conflicting affidavits as to whether a report of abuse had been made to the DHS, resolution depended on the credibility of the affiants, DHS had no discretion to determine whether the phone calls from a medical center were reports under Miss. Code Ann. §43-21-353(1) (2009), and thus, a genuine issue of fact existed as to whether the DHS’s ministerial duty to investigate was triggered. Watkins v. Miss. Dep't of Human Servs., 132 So.3d 1037, 2014 Miss. LEXIS 136 (Miss. 2014).

Miss. Code Ann. §37-9-69 applied to alleged ministerial acts of negligent failure to enforce school district policies, failure to respond to bullying by other students, and failure to discipline those bullies, thus, Miss. Cod Ann. §11-46-9(1)(a), (d)’s discretionary immunity did not bar those claims. R.S. v. Starkville Sch. Dist., 2013 U.S. Dist. LEXIS 134264 (N.D. Miss. Sept. 19, 2013).

Mississippi Department of Transportation (MDOT) was not immune in a wrongful death claim alleging that a failure to place warning signs around a highway culvert, as required by Miss. Code Ann. §65-21-1, resulted in an auto accident that caused the decedent’s death because §65-21-1 imposed a ministerial duty, and, as Miss. Code Ann. §63-3-301 and Miss. Code Ann. §63-3-303 included no language suggesting abrogation or repeal of § 65-21-1, that section-narrowly, precisely, and specifically requiring warning posts around culverts-remained in effect as an exception to the general rule of §63-3-303 that the MDOT had discretion over such placement; Miss. Code Ann. § 65-21-1 controlled the specific issue of guide and warning posts around culverts, and § 63-3-303 controlled the discretionary placement of traffic devices that were not the subject of a specific statutory mandate. Miss. DOT v. Nosef, 110 So.3d 317, 2013 Miss. LEXIS 143 (Miss. 2013).

8. Police or fire protection.

At the time of the encounter, the police officer was acting in the course and scope of his police duties and that the detainee was engaged in criminal activity; the plain language of the Mississippi Tort Claims Act absolved officers from liability in these circumstances, so the district court properly dismissed Plaintiffs’ state law claims against the officer. Shumpert v. City of Tupelo, 905 F.3d 310, 2018 U.S. App. LEXIS 27263 (5th Cir. Miss. 2018), cert. denied, — U.S. —, 139 S. Ct. 1211, 203 L. Ed. 2d 206, 2019 U.S. LEXIS 1058 (U.S. 2019).

County was not entitled to summary judgment under the police protection exemption from liability, following a two-vehicle accident involving a sheriff’s deputy who was driving a sheriff’s department vehicle, because there was a genuine issue of material fact as to whether the deputy’s conduct in crossing a highway constituted reckless disregard for the safety and well-being of others. Additionally, the other driver’s speeding at the time of the crash could not be imputed to the deputy. Irwin-Giles v. Panola Cty., 253 So.3d 922, 2018 Miss. App. LEXIS 103 (Miss. Ct. App.), cert. denied, 252 So.3d 596, 2018 Miss. LEXIS 394 (Miss. 2018).

Trial court correctly granted a city and a fire chief summary judgment on property damage claims because a firefighter and his wife did not allege the safety and well-being of any person was endangered by the fire department’s actions fighting a fire, and thus, their claim was subject to immunity; the statute’s plain language simply does not contemplate liability for actions that may relate merely to alleged reckless disregard of property. Collins v. City of Newton, 240 So.3d 1211, 2018 Miss. LEXIS 123 (Miss. 2018).

Deputy sheriffs were not entitled to summary judgment on the ground of immunity for their police-protection activities because genuine issues of material fact existed as to whether they acted in reckless disregard of the safety and well-being of a car accident victim. Furthermore, there was a dispute as to whether, by fleeing law enforcement, the victim was engaged in criminal activity at the time of the accident because, according to the deputies’ version of events, they were no longer in pursuit when the accident occurred. Hill v. Hinds Cty., 237 So.3d 838, 2017 Miss. App. LEXIS 446 (Miss. Ct. App. 2017), cert. denied, 237 So.3d 1269, 2018 Miss. LEXIS 121 (Miss. 2018).

City enjoyed police-protection immunity because when an accident wreck occurred a police officer had been engaged in the performance of police-protection activities, responding to a call about an unconscious person; the officer had been remiss but not reckless as he drove through a parking lot, and because his actions did not rise above simple negligence, police-protection immunity applied. City of Clinton v. Tornes, 252 So.3d 34, 2018 Miss. LEXIS 371 (Miss. 2018).

Circuit court’s dismissal of a driver’s direct-liability claims was proper because the city admitted vicarious liability, and thus, there was no need to show it was negligent in hiring, training, retaining, or entrusting the officer; regardless of whether the city was negligent, the claim arose out of police-protection activities, and it could not be held liable unless the officer acted with reckless disregard. Carothers v. City of Water Valley, 242 So.3d 138, 2017 Miss. App. LEXIS 281 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 67, 2018 Miss. LEXIS 206 (Miss. 2018).

In a Mississippi Tort Claims Act case filed against the town and the chief of police resulting from the chief slapping plaintiff on her bottom while in the workplace, summary judgment was properly granted and her claim against the town for the failure to properly train and/or supervise the chief was properly dismissed because plaintiff failed to provide any legal authority that the town was required to provide training in addition to that training statutorily required by the Mississippi Law Enforcement Training Academy; the town nonetheless provided the chief with some local training before and after the incident; and the chief acted outside the course and scope of his law-enforcement duties when he committed the simple-assault. Harris v. Town of Woodville, 196 So.3d 1121, 2016 Miss. App. LEXIS 477 (Miss. Ct. App. 2016).

In a case where plaintiff sued the city pursuant to Mississippi Tort Claims Act after he was arrested for discharging a firearm in the city limits when he informed police officers that he discharged a firearm to prevent an attack by a neighbor’s dog, the trial court did not err in denying the city’s motion to dismiss plaintiff’s complaint because plaintiff alleged in his complaint that the officers – acting within the scope of their employment and in complete disregard for his rights – grossly and negligently arrested him, causing physical and psychological damages; thus, plaintiff’s pleading was sufficient under the liberal pleadings standard, and the trial court did not err in finding plaintiff sufficiently stated a claim against the city. City of Vicksburg v. Williams, 191 So.3d 1242, 2016 Miss. LEXIS 213 (Miss. 2016).

In a case in which a city appealed a judgment awarding damages to plaintiff for injuries he sustained when police officers shot and arrested him, the appellate court concluded that the record supported the circuit court’s findings that the officers acted in reckless disregard for the public’s safety, which precluded immunity under the Mississippi Tort Claims Act. City of Jackson v. Jackson, 200 So.3d 1141, 2016 Miss. App. LEXIS 305 (Miss. Ct. App. 2016).

Circuit court properly affirmed a county court’s decision that a city was immune from liability under the Mississippi Tort Claims Act for damages a driver sustained when he struck a displaced manhole cover during a heavy rain storm because the driver failed to create a genuine issue of material fact by affidavits or as otherwise provided that the manhole cover was not displaced solely by the effect of the rain. Ostrowski v. City of D'Iberville, 269 So.3d 418, 2018 Miss. App. LEXIS 286 (Miss. Ct. App. 2016), cert. denied, 260 So.3d 796, 2019 Miss. LEXIS 12 (Miss. 2019).

In a claim against the city under the Mississippi Tort Claims Act for plaintiffs’ damages resulting from a collision with a suspect’s vehicle involved in a high speed pursuit by a police officer, governmental immunity did not shield the city from liability because the officer’s continuation of a high speed pursuit, realizing that the suspect, who had committed only a misdemeanor offense, was unlikely to stop, constituted a violation of the department’s established policy and a reckless disregard for the safety of the public. City of Jackson v. Lewis, 153 So.3d 689, 2014 Miss. LEXIS 580 (Miss. 2014).

City could not avail itself of governmental immunity under the Mississippi Tort Claims Act because substantial evidence supported the finding that the city, through a police officer, acted with reckless disregard for the safety of the public, resulting in the death of a passenger and injury to others; the officer’s continuing pursuit of a suspect constituted a violation of the police department’s established policy, and he knew or should have known that the suspect was not going to stop. City of Jackson v. Lewis, 146 So.3d 320, 2014 Miss. LEXIS 270 (Miss.), op. withdrawn, sub. op., 153 So.3d 689, 2014 Miss. LEXIS 580 (Miss. 2014).

Volunteer firefighter was not immune from suit under the Mississippi Tort Claims Act (MTCA) for claims arising from an automobile accident because the volunteer fire department was not a political subdivision of the State. Under Miss. Code Ann. §95-9-1(3)(b), the firefighter could be liable for negligent operation of a vehicle. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 2012 Miss. LEXIS 486 (Miss. 2012).

Court properly entered judgment for appellees under Miss. Code Ann. §11-46-9 after a vehicle being chased by police struck their vehicle, because the pursuing officer was not familiar with the police department’s pursuit policy and continued to pursue a suspect into a residential area, despite the fact that the suspect had driven recklessly on the highway, was becoming increasingly reckless, and was obviously not going to stop. City of Jackson v. Law, 65 So.3d 821, 2011 Miss. LEXIS 219 (Miss. 2011).

Deputy who stopped at an intersection and, with his blue lights and sirens activated, slowly proceeded across in a stop-and-start fashion, exercised sufficient safety measures to prompt other drivers near the intersection to yield the right-of-way, including the driver traveling in the lane ahead of plaintiffs. Thus, viewing the evidence in the light most favorable to plaintiffs, the deputy’s conduct did not demonstrate a conscious indifference to consequences, nor did it rise to the level of reckless disregard for the safety and well-being of persons not engaged in criminal activity, so as subject the county to liability under Miss. Code Ann. §11-46-9(1)(c). Rayner v. Pennington, 25 So.3d 305, 2010 Miss. LEXIS 12 (Miss. 2010).

Where police officers, responding to a 911 call relating to a domestic complaint, went to the house and interviewed all of the parties present, and where neither the victim nor her boyfriend expressed a desire to press charges against the other, the trial court did not err in finding that there was insufficient evidence to establish intentional harm by the officers, or a conscious indifference on their part to the consequences of their actions. As such, the officers did not act with reckless disregard for the safety and well-being of the victim, and liability under Miss. Code Ann. §11-46-9(1)(c) did not exist. City of Laurel v. Williams, 21 So.3d 1170, 2009 Miss. LEXIS 566 (Miss. 2009).

The trial court did not err in finding in favor of a driver in her action against a city and a police officer under the Mississippi Tort Claims Act (MTCA), because there was substantial, credible evidence to support a finding of reckless disregard for public safety on the part of the officer. The officer knew that there was a good chance that traffic would be coming through the green light of the busy intersection and she proceeded against her own red light, even though her view to the left was completely blocked by a truck; therefore, the trial court did not err in finding that the officer’s conduct went beyond mere negligence to reckless disregard and that the city was therefore not immune from liability under the MTCA. City of Jackson v. Presley, 40 So.3d 578, 2009 Miss. App. LEXIS 793 (Miss. Ct. App. 2009), rev'd, 40 So.3d 520, 2010 Miss. LEXIS 385 (Miss. 2010).

In a wrongful death case in which the administratrix of the deceased’s estate appealed the trial court’s dismissal of the case, she unsuccessfully argued that a police officer acted in reckless disregard of the deceased’s safety and well-being by failing to properly investigate the 911 call. Even assuming that the officer’s investigation was inadequate, his behavior was, at most, simple negligence, which did not support a finding of liability under the Mississippi Tort Claims Act. Davis v. City of Clarksdale, 18 So.3d 246, 2009 Miss. LEXIS 431 (Miss. 2009).

Trial court did not err in entering judgment in favor of a police officer in an action filed by a father and sons to recover damages for injuries they sustained when the officer hit their ATV because the officer’s actions were protected under the sovereign immunity provided by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(c), when they did not amount to reckless disregard for the safety of others; an expert in police pursuit interviewed the officer, reviewed the depositions and the accident report, and viewed the accident scene, and he ultimately concluded that the officer did not act in reckless disregard in the accident. Giles v. Brown, 31 So.3d 1232, 2009 Miss. App. LEXIS 548 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 178 (Miss. 2010).

In a 42 U.S.C.S. § 1983 suit, an arrestee adequately pled claims for excessive use of force against a police officer because the arrestee had a clearly established Fourth Amendment right not to be bodily removed from his car and thrown to the ground after allegedly committing a traffic infraction; the officer’s actions were not shielded by the doctrine of qualified immunity or by governmental immunity arising under Miss. Code Ann. §11-46-9(1). Stepney v. City of Columbia, 2009 U.S. Dist. LEXIS 16376 (S.D. Miss. Feb. 18, 2009).

In a wrongful death case in which a mother asserted state law tort claims for negligent and/or intentional infliction of emotional distress and for loss of consortium against a sheriff, those claims failed. Not only was the sheriff protected from liability by the police protection exception under Miss. Code Ann. §11-46-9(1)(c), but even if he was not exempt, the mother’s allegations and proof did not support her claims in any event. Bradley v. City of Jackson, 590 F. Supp. 2d 817, 2008 U.S. Dist. LEXIS 95683 (S.D. Miss. 2008).

In a mother’s wrongful death action, the trial court properly held that the actions of a police chief in attempting to execute an arrest warrant against a daughter’s boyfriend were discretionary in nature and that the city was entitled to discretionary function immunity pursuant to Miss. Code Ann. §11-46-9(1)(d) because the chief’s actions in attempting to execute the warrant were reasonable and appropriate. Estate of Carr v. City of Ruleville, 5 So.3d 455, 2008 Miss. App. LEXIS 510 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 136 (Miss. 2009).

Mississippi Department of Public Safety and the Mississippi Highway Patrol were exempt from liability, under Miss. Code Ann. §11-46-9(1)(c), because plaintiff did not meet his burden of showing by a preponderance of the evidence that a first law enforcement officer intentionally disregarded information and thus, acted in reckless disregard when he misidentified plaintiff or his vehicle because (1) the first officer knew only the make, model, and color of vehicle for which he was looking; (2) the first officer pulled over a vehicle which appeared to fit the description he had been given, which was traveling very near to a pursuing officer at the time the first officer was approaching the pursuing officer to assist him in the pursuit; (3) after the stop, plaintiff, by his own admission, neither identified himself nor complied with the first officer’s requests during takedown and handcuffing; and (4) although the first officer mistakenly identified plaintiff as the suspect, plaintiff failed to prove that the officers acted in any way other than reasonably under the circumstances. Phillips v. Miss. Dep't of Pub. Safety, 978 So. 2d 656, 2008 Miss. LEXIS 171 (Miss. 2008).

Grant of summary judgment in favor of the city and police officer in the jogger’s action under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, after he was struck by the police officer while jogging was appropriate because the jogger failed to prove that the officer acted with reckless disregard of the safety and well-being of others, Miss. Code Ann. §11-46-9(1)(c). Morton v. City of Shelby, 984 So. 2d 323, 2007 Miss. App. LEXIS 761 (Miss. Ct. App. 2007), cert. denied, 984 So. 2d 277, 2008 Miss. LEXIS 274 (Miss. 2008).

While Miss. Code Ann. §37-7-321 and Miss. Code Ann. §37-7-323 allowed schools to retain independent contractors to work as peace officers on school grounds, the legislature however did not provide an express grant of immunity to those independent contractors under Miss. Code Ann. §19-19-5 or the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-9; accordingly, the trial court erred in finding that the security contractor was immune to suit by virtue of the MTCA. Knight v. Terrell, 961 So. 2d 30, 2007 Miss. LEXIS 408 (Miss. 2007).

Because defendants, two county attorneys, a sheriff, and the sheriff’s deputy, were acting in their official roles in enforcing a facially valid Virginia custody order granting custody of children to the children’s mother, immunity under Miss. Code Ann. §11-46-7(2) applied to the claims of plaintiffs, a father and his adult son who had been granted custody of the children by a Mississippi court. Blake v. Wilson, 962 So. 2d 705, 2007 Miss. App. LEXIS 252 (Miss. Ct. App. 2007).

City was immune from liability under Miss. Code Ann. §11-46-9(1)(c) for the decedent’s death, and therefore it was properly granted summary judgment because the officer’s conduct did not amount to reckless disregard for the safety of the traveling public; the officer notified his dispatcher of the condition of the highway and the dispatcher promptly notified the Mississippi Department of Transportation so that sand or salt could be applied to the ice patch. Willing v. Estate of Benz, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App.), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 340 (Miss. 2007).

City was immune from liability under Miss. Code Ann. §11-46-9(1)(q) for the decedent’s death, and therefore it was properly granted summary judgment because the ice was caused solely by the effect of weather, and the family did not point to any evidence that the city or the officer contributed to or were responsible for the formation of the ice patch. Willing v. Estate of Benz, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App.), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 340 (Miss. 2007).

Judgment was properly entered for a city in a personal injury case based on sovereign immunity under Miss. Code Ann. §11-46-9(1)(c) because an officer did not act with reckless disregard when she pursued a suspect with outstanding warrants since she saw an open container in his car and suspected he was driving under the influence. Broome v. City of Columbia, 952 So. 2d 1050, 2007 Miss. App. LEXIS 190 (Miss. Ct. App. 2007).

City was entitled to immunity under the police protection exemption under Miss. Code Ann. §11-46-9(1)(c), and therefore the city’s motion for summary judgment was properly granted in the party guest’s personal injury action, because the officer’s failure to remove the keys from and/or lock the doors of his patrol car did not show a reckless disregard for the safety of others, given that the party guest testified that there was a crowd of 15 or more angry teenagers who were wielding knives and throwing sticks, bricks, and other objects and who the party guest was convinced were intent on killing or seriously injuring him. Chapman v. City of Quitman, 954 So. 2d 468, 2007 Miss. App. LEXIS 176 (Miss. Ct. App. 2007).

Summary judgment was properly granted to a city in a negligence case because it was immune under Miss. Code Ann. §11-46-9(1)(c) since an officer was not acting with reckless disregard when she pursued a suspect while trying to serve outstanding domestic warrants; the officer suspected he was driving under the influence and saw an open container. Broome v. City of Columbia, 2006 Miss. App. LEXIS 762 (Miss. Ct. App. Oct. 17, 2006), sub. op., op. withdrawn, 952 So. 2d 1050, 2007 Miss. App. LEXIS 190 (Miss. Ct. App. 2007).

Record showed that the police officers did not exercise reckless disregard when they chose to charge the victim’s murderer with simple assault where the police officer was apparently unaware that an aggressor may be charged with domestic violence if that person commits an assault upon one with whom they formerly resided; the administratrix also failed to present any evidence to show how the town acted in a willful, wanton, or wrongful manner in failing to relay a detailed account of the assault to the murderer’s parole officer or by not informing the municipal judge of the murderer’s prior aggravated assault conviction. Fair v. Town of Friars Point, 930 So. 2d 467, 2006 Miss. App. LEXIS 419 (Miss. Ct. App. 2006).

Defendants were properly granted judgment on plaintiffs’ personal injury claims because defendant police officer’s conduct during a vehicle pursuit did not rise to the level of reckless disregard, which was required by Miss. Code Ann. §11-46-9(1)(c) for a finding of liability; the officer took specific steps in an attempt to safeguard other vehicles that may have entered the intersection where the accident occurred, including, inter alia, sounding his air horn and reducing his speed. Cole v. Miss. Dep't of Pub. Safety, 930 So. 2d 472, 2006 Miss. App. LEXIS 428 (Miss. Ct. App. 2006).

University police corps provided local law enforcement with college-educated, specialized, quasi-military trained police officers to assist in protecting against violent crime; therefore, it was related to police protection and satisfied the government/proprietary distinction, as police training was a governmental function. Hayes v. Univ. of Southern Miss., 952 So. 2d 261, 2006 Miss. App. LEXIS 614 (Miss. Ct. App. 2006), cert. denied, 951 So. 2d 563, 2007 Miss. LEXIS 190 (Miss. 2007).

Directed verdict in favor of the sheriff and county in the family’s action alleging reckless disregard by an auxiliary deputy sheriff concerning an accident involving the deputy and their son was appropriate under Miss. Code Ann. §11-46-9(1)(c) because the deputy’s actions, at the most, amounted to negligence; the deputy was traveling no more than five miles over the speed limit and Miss. Code Ann. §63-3-517 permitted him to do so because he was responding to an accident. Peebles v. Winston County, 929 So. 2d 385, 2006 Miss. App. LEXIS 373 (Miss. Ct. App. 2006).

Record revealed immense suffering by the resident and his wife and children due to the resident’s arrest for a crime which he unquestionably did not commit, and the cellular phone company paid for transposing numbers that led to the resident’s arrest; the city police officers were at the most, negligent, they did not act in reckless disregard of the safety and well-being of the resident or any other citizen, and pursuant to Miss. Code Ann. §11-46-9(1)(c), the city was exempt from liability. City of Greenville v. Jones, 925 So. 2d 106, 2006 Miss. LEXIS 122 (Miss. 2006).

In plaintiff’s personal injury action against a police officer, court did not err in finding that the officer was immune from liability under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(c), because the officer was justified in drawing his gun upon stopping plaintiff’s car; officer had received call that two cars were speeding and that shots had been fired. Smith v. Brookhaven, 914 So. 2d 180, 2005 Miss. App. LEXIS 50 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 750 (Miss. 2005).

Suspect in murder gave a videotaped statement indicating that the couple were present during the victim’s murder, robbery having been the motive, and based on that information, the sheriff obtained an arrest warrant for the couple. When the aforementioned suspect recanted his allegation, and sheriff realized there was no longer probable cause to hold the couple, sovereign immunity applied in the couple’s suit against the sheriff and the county for false arrest and malicious prosecution, under the exception of Miss. Code Ann. §11-46-9(1)(c). Keen v. Simpson County, 904 So. 2d 1157, 2004 Miss. App. LEXIS 1039 (Miss. Ct. App. 2004).

In a mother’s suit against aa police officer and the department of public safety when her son was killed in a car accident while riding with his father soon after the officer had given the father a speeding ticket, judgment in the officer’s favor was proper as his failure to check the father’s sobriety did not rise to the level of reckless disregard required for the mother to recover against the State. Thomas ex rel. Thomas v. Miss. Dep't of Pub. Safety, 882 So. 2d 789, 2004 Miss. App. LEXIS 930 (Miss. Ct. App. 2004).

Evidence showed the officer was traveling approximately 37 miles per hour with lights and sirens activated, there was nothing obstructing the view of either the person later injured or the officer, and the greater weight of evidence also proved that the person’s left turn signal was not activated. In addition, the officer had consciously stopped at the previous two intersections because the officer considered both of those to be blind intersections, and therefore, the officer’s behavior supported the finding that the officer appreciated the risk involved in approaching the intersection and did not act with reckless disregard. Davis v. Latch, 873 So. 2d 1059, 2004 Miss. App. LEXIS 445 (Miss. Ct. App. 2004).

In the context of actions pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 to11-46-23, the common thread running through cases where an officer acts with reckless disregard in operating a motor vehicle is an appreciation of the unreasonable risk of danger involved coupled with a conscious indifference to the consequences that are certain to follow. Davis v. Latch, 873 So. 2d 1059, 2004 Miss. App. LEXIS 445 (Miss. Ct. App. 2004).

Mississippi Tort Claims Act, Miss. Code Ann. §11-46-7(2) barred plaintiff’s state law claims against the police chief and the officer because the wrongful arrest of plaintiff occurred in the scope and course of their employment, but did not bar the state law claims against the city under Miss. Code Ann. §11-46-9(1)(c) because the officer was acting within the scope of his employment when he acted with reckless disregard in the arrest of the mother. Craddock v. Hicks, 314 F. Supp. 2d 648, 2003 U.S. Dist. LEXIS 25637 (N.D. Miss. 2003).

Department of Public Safety was not immune from liability in a suit by a driver. A state trooper, who was speeding excessively and acted in reckless disregard of the driver’s safety; the fact that the driver made a left turn did not matter, as this was not criminal activity. Miss. Dep't of Pub. Safety v. Durn, 861 So. 2d 990, 2003 Miss. LEXIS 871 (Miss. 2003).

As a decedent was engaged in criminal activity (drunk driving) and there was a causal nexus between that activity and his death in a collision with a fire truck, the city was immune from a wrongful death suit under Miss. Code Ann. §11-46-9(1)(c). Estate of Williams v. City of Jackson, 844 So. 2d 1161, 2003 Miss. LEXIS 209 (Miss. 2003).

Operating a vehicle involves both the moving and the stopping of a vehicle, and when these are done under the influence of alcohol, it is considered criminal activity which operates to limit the duty owed by police and fire personnel under Miss. Code Ann. §11-46-9(1)(c); however, in order for recovery from a governmental entity to be barred, the criminal activity has to have some causal nexus to the wrongdoing of the tortfeasor. Estate of Williams v. City of Jackson, 844 So. 2d 1161, 2003 Miss. LEXIS 209 (Miss. 2003).

Dismissal of the driver and passengers’ action against the city and police officer after they were struck by the officer’s vehicle was proper where the officer’s action evinced no recklessness, Miss. Code Ann. §11-46-9(1)(c); he was remiss in paying attention to traffic directly in his lane, but he was guilty of simple negligence and nothing more. Joseph v. City of Moss Point, 856 So. 2d 548, 2003 Miss. App. LEXIS 430 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 720 (Miss. 2003).

Where conflicting evidence was presented as to whether the police officer, who was engaged in a high speed chase when the officer struck the decedent, had the officer’s blue lights flashing, summary judgment pursuant to Miss. R. Civ. P. 56 was improperly granted in favor of the city in the wrongful death action; the conflicting testimony raised an issue of material fact as to whether the officer’s behavior constituted reckless disregard under Miss. Code Ann. §11-46-9(1)(c). Johnson v. City of Cleveland, 846 So. 2d 1031, 2003 Miss. LEXIS 257 (Miss. 2003).

In a wrongful death suit against a town, the town was correctly granted summary judgment since there were no facts of record to support the allegation that the town acted with reckless disregard for the decedent’s safety; only 13 minutes elapsed between the decedent’s report to the police that he had been shot at and his fatal shooting, and the police acted responsibly and within their discretion. Titus v. Williams, 844 So. 2d 459, 2003 Miss. LEXIS 206 (Miss. 2003).

The “reckless disregard” exception to the Mississippi Tort Claims Act in Miss. Code Ann. §11-46-9(1)(c) was not applicable to the homeowners’ suit against county for delay in 911 response by police, which did not involve personal injury, but only loss of property. Lee County v. Davis, 838 So. 2d 243, 2003 Miss. LEXIS 7 (Miss. 2003).

Government and its employees acting within the course and scope of their employment are not liable for any claims arising out of an act or omission of the employee engaged in the performance of execution of duties or activities relating to police or fire protection, unless it is proven by a preponderance of the evidence that the employee was acting in a reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury; therefore, a trial court correctly determined that a city and its police officer waived immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., because an injured party established that the officer acted in reckless disregard of his safety when he answered a burglary call without activating his lights or siren. City of Jackson v. Lipsey, 834 So. 2d 687, 2003 Miss. LEXIS 8 (Miss. 2003).

Maintenance and inspection of police vehicles are activities related to police protection, so that a city and an officer were immune from liability arising out of negligence in the performance of either act under the police protection exemption of Miss. Code Ann. §11-46-9(1)(c) when the brakes in a police car failed and the police car collided with another car. McGrath v. City of Gautier, 794 So. 2d 983, 2001 Miss. LEXIS 167 (Miss. 2001).

In an action in which the plaintiff alleged that he was injured by a security officer for a water supply district, the water supply district was not entitled to summary judgment as the record did not contain any evidence that the district engaged in a policy-oriented decision-making process concerning the supervision of its employees. Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 2001 Miss. LEXIS 84 (Miss. 2001).

The criminal activity supporting the exemption for police or fire protection unless the government employee acted in reckless disregard of the safety of a person “not engaged in criminal activity at the time of injury” must be more than fortuitous, but need not rise to the level of a felony. Bridges v. Pearl River Valley Water Supply Dist., 793 So. 2d 584, 2001 Miss. LEXIS 84 (Miss. 2001).

A governmental agency and its employees, acting within the course and scope of their official duties, and engaged in the performance or execution of duties relating to police or fire protection, will not be liable for any claim arising out of the performance or execution of thoses duties, unless it is proven, by a preponderance of the evidence, that the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. Simpson v. City of Pickens, 761 So. 2d 855, 2000 Miss. LEXIS 133 (Miss. 2000).

A police officer and the city that employed him were not entitled to immunity with regard to a motor vehicle accident involving the officer since the evidence showed reckless disregard by the officer of the safety and well-being of others where (1) the officer testified to seeing the plaintiff’s vehicle stopped at the a townhome complex, (2) the plaintiff attempted a left turn from the complex, (3) the officer was driving at a minimum of 57 miles per hour in a posted 35 miles per hour zone and struck the plaintiff’s vehicle in the driver’s door knocking the vehicle 75 feet, and (4) the officer was in a non-emergency situation using neither sirens nor flashing lights and was going to meet fellow officers for dinner. City of Jackson v. Perry, 764 So. 2d 373, 2000 Miss. LEXIS 107 (Miss. 2000).

The fact that the plaintiff was driving without a license at the time that his vehicle was struck by a police officer’s vehicle being driven in a reckless manner did not bar his recovery for injuries sustained in the accident as the officer’s conduct did not have anything to do with the plaintiff’s criminal activity. City of Jackson v. Perry, 764 So. 2d 373, 2000 Miss. LEXIS 107 (Miss. 2000).

A deputy sheriff acted with reckless disregard within the meaning of subsection (1)(c) of this section when he backed up the incline entrance to a parking lot knowing he could not be sure the area was clear. Maye v. Pearl River County, 758 So. 2d 391, 1999 Miss. LEXIS 198 (Miss. 1999).

In an action arising from a collision with a drunk driver in which the plaintiff alleged that, immediately prior to the accident, a city police officer had stopped the drunk driver for operating his vehicle in an erratic fashion and failing to have the vehicle’s headlights on, but permitted the drunk driver to continue driving even though he knew the driver was intoxicated and incapable of driving in a safe and prudent manner, the trial court erred in holding that the complaint was insufficient because it did not allege that the officer intended to harm the plaintiff; the proper focus should have been whether the officer intended to do the act that caused harm to the plaintiff. Turner v. City of Ruleville, 735 So. 2d 226, 1999 Miss. LEXIS 113 (Miss. 1999).

Reckless disregard within the meaning of subsection (1)(c) of this section is synonymous with willfulness and wantonness. Turner v. City of Ruleville, 735 So. 2d 226, 1999 Miss. LEXIS 113 (Miss. 1999).

A police officer who detained the plaintiff when she went to the police station to inquire about an outstanding warrant for shoplifting did not act in reckless disregard for the plaintiff’s safety and well-being since he was faced with an arrest warrant that was valid on its face and had a duty to execute the warrant. Foster v. Noel, 715 So. 2d 174, 1998 Miss. LEXIS 270 (Miss. 1998).

9. Immunity.

In a case in which a minor foster child alleged that his foster parent sexually abused him, the circuit court did not err in denying the motion for summary judgment of the Mississippi Department of Human Services (DHS) because the DHS did not meet its burden of production or persuasion under the summary judgment rule as the Mississippi Tort Claims Act immunity was an affirmative defense, and there was no evidence in the record that the DHS followed its policies and regulations regarding the DHS’s care and treatment of the minor child during placement or after the abuse allegations were reported and investigated. Miss. Dep't of Human Servs. v. D.C., — So.3d —, 2019 Miss. LEXIS 286 (Miss. Aug. 15, 2019).

Supreme Court of Mississippi overruled Keen v. Simpson County, 904 So. 2d 1157, 2004 Miss. App. LEXIS 1039 (Miss. Ct. App. 2004) Code Ann. §11-46-9(1)(c) to the malicious-prosecution claim against Simpson County and its sheriff. Univ. of Miss. Med. Ctr. v. Oliver, 235 So.3d 75, 2017 Miss. LEXIS 339 (Miss. 2017).

Circuit court properly granted a county’s motion for summary judgment in a personal injury action filed by a visitor to the county correctional center because the county was entitled to immunity under the Mississippi Torts Claim Act where there was no proof of any recent malfunctioning of a security gate to put the county on notice of a dangerous condition and there was no evidence that a deputy intended to close the gate on the visitor where the evidence demonstrated that the deputy accidentally closed the visitor’s leg in the gate when she tried to reset it. Ware v. Adams Cnty., 199 So.3d 1257, 2016 Miss. App. LEXIS 547 (Miss. Ct. App. 2016).

In a condemnation proceeding, the trial court did not err in denying a city’s motion for summary judgment, for its immunity against tort claims did not encompass claims of constitutional violations. City of Jackson v. Jordan, 202 So.3d 199, 2016 Miss. LEXIS 347 (Miss. 2016).

Circuit court erred in awarding homeowners damages to repair their home because the city was immune from liability under the Mississippi Tort Claims Act; the city did not act arbitrarily and capriciously in allowing one contractor to continue to perform work on the homeowners’ residence after he withdrew because the city permit manager’s inclusion of a second contractor’s name was a genuine mistake, and the city had no police for when a contractor released a permit and withdraw. City of Tupelo v. McMillin, 192 So.3d 948, 2016 Miss. LEXIS 152 (Miss. 2016).

In a false imprisonment claim, a county was immune based on the inmate exception under this statute because an injured party was a pretrial detainee; an argument that the claims arose at the time he was not an inmate, but was in the process of being booked, was rejected. Hinds Cnty. v. Burton, 187 So.3d 1016, 2016 Miss. LEXIS 136 (Miss. 2016).

Injured party could not recover from a city and county following a shooting because they were immune based on the police-protection exemption under this statute where agents and a deputy all testified that they either saw or heard someone shooting, and the injured party presented nothing that contradicted the testimony. An officer’s act of returning fire was objectively reasonable under the circumstances, and a violation of a police policy was not dispositive on the issue of reckless disregard. Hinds Cnty. v. Burton, 187 So.3d 1016, 2016 Miss. LEXIS 136 (Miss. 2016).

City and police officer were exempt from liability for hitting a minor’s vehicle because (1) the minor was engaged in criminal activity, as the minor had marijuana in the minor’s system and a blood alcohol content above the legal limit for minors, and (2) a causal nexus existed between this activity and the minor’s death. McElroy v. City of Brandon, 198 So.3d 373, 2015 Miss. App. LEXIS 678 (Miss. Ct. App. 2015), cert. denied, 203 So.3d 596, 2016 Miss. LEXIS 374 (Miss. 2016).

Trial court properly entered a judgment in favor of a city and its police department and found that were entitled to governmental immunity because, while a police officer was negligent in driving his vehicle when he hit a student with his patrol car in front of a school after a football game ended, his conduct did not rise to the level of reckless disregard. Crisler v. City of Crystal Springs, 171 So.3d 588, 2015 Miss. App. LEXIS 403 (Miss. Ct. App. 2015).

County had immunity under the Mississippi Tort Claims Act for a county justice court clerk’s negligence in failing to cancel an arrest warrant because the clerk’s administrative duty to issue notice of the cancelled warrant was judicial in nature; the clerk had an administrative duty to issue notice of the cancelled warrant, clearly an act of a judicial nature, which related to and derived from the judge’s decision. DeSoto County v. Dennis, 160 So.3d 1154, 2015 Miss. LEXIS 174 (Miss. 2015).

It would be patently unfair to affirm summary judgment in the city’s favor without the property owner having an opportunity to attempt to conform his complaint and proof to the current approach to discretionary function immunity; municipal sewage maintenance generally is a discretionary function, but several narrower functions and duties associated with sewage maintenance are mandated by statute or regulation and thus are ministerial and removed from discretionary function immunity. Boroujerdi v. City of Starkville, 158 So.3d 1106, 2015 Miss. LEXIS 84 (Miss. 2015).

Trial court was correct when it granted the Mississippi Department of Transportation summary judgment on all of the property owners’ claims because all of their causes of action were barred by the design exemption; although there is a waiver of immunity for claims for money damages arising out of the State’s alleged tortious conduct, there is no such waiver of immunity for injunctive relief in this context. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

Trial court did not err in granting the Mississippi Department of Transportation (MDOT) summary judgment in property owners’ action alleging that bypass construction caused silt to flood onto their land damage their timber because MDOT was immune under subsection (1)(p); MDOT submitted an affidavit from its roadway design engineer, who testified that the plans or designs for the project were approved in advance of construction. Garretson v. Miss. DOT, 156 So.3d 241, 2014 Miss. LEXIS 579 (Miss. 2014).

There was no evidence in the record that conditions existed that would have made a ramp dangerous when plaintiff fell on it, and the record was also void of any indication that the ramp was wet from another source other than weather conditions. Hence, plaintiff failed to overcome defendant county’s assertion of immunity under Miss. Code Ann. §11-46-9(1)(v). Case v. Bd. of Supervisors, 164 So.3d 1043, 2014 Miss. App. LEXIS 609 (Miss. Ct. App. 2014).

Trial court erred in granting summary judgment to the Department of Transportation and the Transportation Commission (the defendants) on the injured parties’ negligence claim because issues of fact existed as to whether the repair of a bridge was performed in a negligent manner and they were not immune from liability. Logan v. Miss. DOT, 174 So.3d 264, 2014 Miss. App. LEXIS 486 (Miss. Ct. App. 2014), cert. denied, 160 So.3d 704, 2015 Miss. LEXIS 180 (Miss. 2015), aff'd in part and rev'd in part, 174 So.3d 249, 2015 Miss. LEXIS 460 (Miss. 2015).

Under the Mississippi Tort Claims Act (MTCA), it was the function of a governmental entity–not the acts performed in order to achieve that function– to which immunity did or did not ascribe under the MTCA. Pursuant to the Montgomery decision, the line of cases holding otherwise was overruled; the Supreme Court of Mississippi holds that, where a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity. Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Commissioner of the state department of corrections, the community correctional director for the region, and a correctional facility officer who assigned work were entitled to immunity from state law claims brought by an inmate based on injuries sustained when he was subjected to dangerous conditions and contracted tuberculosis while fulfilling the terms of his restitution at a chicken-processing plant. Jones v. Tyson Foods, Inc., 971 F. Supp. 2d 648, 2013 U.S. Dist. LEXIS 143376 (N.D. Miss. 2013).

Mississippi did not have to show that it qualified for immunity under Miss. Code Ann. §11-46-9(1)(v) as it was immune from a driver’s suit under Miss. Code Ann. §11-46-9(1)(d); if an entity qualified for immunity under §11-46-9(1)(d), the conditions for immunity under §11-46-9(1)(v) were irrelevant. Little v. Miss. DOT, 129 So.3d 192, 2012 Miss. App. LEXIS 627 (Miss. Ct. App. 2012), rev'd, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

10. Waiver of immunity.

In a negligence action filed against a school district after a student was sexually assaulted, a school district had governmental immunity under the Mississippi Torts Claims Act because the oversight of student conduct and school safety involved an element of choice or judgment and constituted a discretionary function; a statute did not set forth how the ministerial duty to hold students accountable for disorderly conduct at school was to be carried out. Moreover, the school district’s actions regarding the implementation of school safety measures and student discipline involved both social and economic policy; however, this immunity was waived due to delay and active participation in the litigation. Doe v. Rankin County Sch. Dist., 2014 Miss. App. LEXIS 617 (Miss. Ct. App. Oct. 28, 2014), rev'd, 189 So.3d 616, 2015 Miss. LEXIS 552 (Miss. 2015).

School district was not entitled to an award of summary judgment, based upon governmental immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because, although the school district was immune under Miss. Code Ann. §11-46-9(1)(d), the school district waived this affirmative defense by actively participating in the litigation process and unreasonably delayed its pursuit of immunity for sixteen months. Doe v. Rankin County Sch. Dist., 2013 Miss. App. LEXIS 850 (Miss. Ct. App. Dec. 10, 2013), sub. op., 2014 Miss. App. LEXIS 617 (Miss. Ct. App. Oct. 28, 2014).

11. Illustrative cases.

In a plurality opinion, the Supreme Court concluded the trial court did not err in finding that plaintiff failed to establish a prima facie case of negligence on the part of defendant county’s employees. The only evidence of any type of negligence was plaintiff’s running into the rear end of a garbage truck in blinding fog. Robinson v. Holmes Cty., — So.3d —, 2019 Miss. LEXIS 348 (Miss. Sept. 26, 2019).

Circuit court properly granted a county summary judgment on a negligence claim where the 16 to 18 foot open drainage channel into which the individual fell was an open and obvious danger, the sole proximate cause of the individual’s injuries was his own negligence in walking directly into the channel at night without a flashlight. Campbell v. Harrison Cty. Bd. of Supervisors, 269 So.3d 1269, 2018 Miss. App. LEXIS 574 (Miss. Ct. App. 2018), cert. denied, 268 So.3d 1280, 2019 Miss. LEXIS 194 (Miss. 2019).

It was appropriate to reverse summary judgment for a city dismissing an estate’s wrongful death claim to allow the estate to fully present a negligence claim because (1) the case was pending when the applicable test was overruled and the public-policy function test was reinstituted, and (2) questions existed regarding the applicability of both Miss. Code Ann. §11-46-9(1)(d) and (v) to the facts. Hudson v. Yazoo City (Estate of Hudson), 246 So.3d 872, 2018 Miss. LEXIS 294 (Miss. 2018).

Court of appeals erred in reversing the trial court’s judgment because it ignored substantial, credible, and reasonable evidence that supported the trial court’s finding that Mississippi Department of Wildlife, Fisheries, and Parks officers acted with reckless disregard for the safety of others; the trial court’s finding that the officers’ testimony was not credible because substantial, credible, and reasonable evidence in the record contradicted the testimony could not be discarded. Miss. Dep't of Wildlife v. Webb, 248 So.3d 772, 2018 Miss. LEXIS 127 (Miss. 2018).

In a suit alleging an officer acted with reckless disregard for public safety, while applying the ten factors used to evaluate pursuit cases erred, substantial evidence showed reckless disregard, under the totality of the circumstances, removing a city’s Mississippi Tort Claims Act immunity, because the officer sped down a darkly lit street without using emergency lights and a siren to warn others of the officer’s presence. City of Jackson v. Graham, 226 So.3d 608, 2017 Miss. App. LEXIS 538 (Miss. Ct. App. 2017).

Circuit court improperly ruled for a family in their action claiming that Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) conservation officers acted with reckless disregard for the safety of boaters because it erroneously applied the legal standard for reckless disregard; the violation of a MDWFP standard operation procedure failed to establish reckless disregard because no provision prohibited officers from requesting a boater pull to a safe area to conduct a traffic stop. Miss. Dep't of Wildlife, Fisheries, & Parks v. Webb, 248 So.3d 823, 2017 Miss. App. LEXIS 217 (Miss. Ct. App. 2017), rev'd, 248 So.3d 772, 2018 Miss. LEXIS 127 (Miss. 2018).

Circuit court improperly ruled for a family in their action against the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) because it erroneously applied the legal standard for reckless disregard under the Mississippi Torts Claim Act; MDWFP officers possessed the discretion to request that boaters pull out of the hazardous and high-traffic area of a river, and the MDWFP possessed the authority to regulate the boating traffic on the river and the discretion to do so in a safe manner. Miss. Dep't of Wildlife, Fisheries, & Parks v. Webb, 248 So.3d 823, 2017 Miss. App. LEXIS 217 (Miss. Ct. App. 2017), rev'd, 248 So.3d 772, 2018 Miss. LEXIS 127 (Miss. 2018).

Contractor’s claim against a county engineer for tortious interference with a road construction contract implicated the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because the county engineer’s responsibilities concerned the review, mitigation, and approval of alterations to the original construction contract. Springer v. Ausbern Constr. Co., 231 So.3d 1065, 2016 Miss. App. LEXIS 499 (Miss. Ct. App. 2016), aff'd, 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

Mississippi Transportation Commission (MTC) was not immune under subsection (1)(p) because a widow did not claim that MTC’s plans were deficient, but rather, she claimed that MTC’s plans were not followed; the widow specifically argued that the construction plans incorporated the requirements of MTC’s regulations and that MTC violated those requirements, but nothing in her complaint, pleadings, or arguments on appeal cold be construed as a claim that MTC’s plans were deficient. Miss. Transp. Comm'n v. Adams, 197 So.3d 406, 2016 Miss. LEXIS 232 (Miss. 2016).

Although plaintiff argued that a medical center was required to have a thoracic surgeon on call 24 hours a day, seven days a week, the trial judge correctly applied the plain language of the Mississippi Tort Claims Act when he concluded that the medical center could not be held liable for not devoting resources to attempting to hire additional thoracic surgeons. Taylor v. Delta Reg'l Med. Ctr., 186 So.3d 384, 2016 Miss. App. LEXIS 81 (Miss. Ct. App. 2016).

In a personal injury suit brought against a deputy sheriff and the county that employed him, the trial court did not err in finding that immunity under the Mississippi Tort Claims Act did not attach to the county because the deputy acted in reckless disregard for the safety of others by continuing to drive a vehicle that had been signaling that there were brake problems for several weeks and failing to properly resolve the brake issues. The deputy, being aware that the brake-warning light was still on in the vehicle during the weeks leading up to the accident, should not have continued driving the vehicle in a professional capacity. Pearl River Cnty. v. Bethea, 196 So.3d 1012, 2015 Miss. App. LEXIS 627 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 616, 2016 Miss. LEXIS 307 (Miss. 2016).

Notwithstanding Miss. Code Ann. §63-3-303, the act giving rise to the injuries in this case was not the placement or maintenance of a traffic-control device – but rather a Department of Transportation (DOT) employee’s alleged negligent operation of a pickup truck; because the employee did not fall within the exceptions to Miss. Code Ann. §63-3-205, and his duty to adhere to applicable traffic regulations was not discretionary, the circuit court erred in finding the DOT immune under Miss. Code Ann. §11-46-9(1)(d). Mixon v. Miss. DOT, 183 So.3d 90, 2015 Miss. App. LEXIS 313 (Miss. Ct. App. 2015), cert. denied, 181 So.3d 1010, 2016 Miss. LEXIS 52 (Miss. 2016).

School district was not immune from liability for injuries caused by a protruding conduit in the district’s parking lot under the dangerous-condition exemption because (1) the protruding conduit was a dangerous condition on the school district’s property, (2) substantial credible evidence supported the conclusion that the condition was not open and obvious, (3) there was substantial credible evidence that the school district had notice of the condition before an injury, and (4) there was no evidence that the school district took any measures to warn people. Natchez-Adams Sch. Dist. v. Bruce, 168 So.3d 1181, 2015 Miss. App. LEXIS 231 (Miss. Ct. App.), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 334 (Miss. 2015).

School district was not entitled to discretionary immunity from liability for injuries caused by a protruding conduit in the district’s parking lot because Miss. Code Ann. §37-7-301(d) imposed a ministerial duty on the district to repair the hazard. Natchez-Adams Sch. Dist. v. Bruce, 168 So.3d 1181, 2015 Miss. App. LEXIS 231 (Miss. Ct. App.), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 334 (Miss. 2015).

School district was not entitled to summary judgment finding the district immune from liability for a student’s injury, under Miss. Code Ann. §11-46-9(1)(d)(v), because (1) a divider which fell and struck the student was vertically placed and left unsecured between doors frequently used by students, so the divider was a dangerous condition, and (2) evidence showed the district created the condition by leaving the divider unsecured. K.N. v. Moss Point Sch. Dist., 167 So.3d 1280, 2014 Miss. App. LEXIS 659 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 359 (Miss. 2015).

School district was not entitled to summary judgment finding the district immune from liability for a student’s injury, under Miss. Code Ann. §11-46-9(1)(d), because the district had a ministerial duty under Miss. Code Ann. §37-7-301(d) to ensure a divider which fell and struck the student was properly replaced and secured. K.N. v. Moss Point Sch. Dist., 167 So.3d 1280, 2014 Miss. App. LEXIS 659 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 359 (Miss. 2015).

In suit by a tenant against the housing authority, the government entity that managed an apartment complex, the housing authority was entitled to sovereign immunity because it had no notice about the danger the light posed before it fell as the long-term maintenance supervisor and the property manager for almost two decades both testified they were not aware of other light boxes falling before the tenant’s; while the maintenance supervisor had previously replaced light boxes, he did not say it was because he knew they were too heavy, improperly installed or otherwise dangerous; and the fact a smaller, lighter fixture was put up after the other light fell did not prove the housing authority knew before the fixture fell that it was too heavy. Serrano v. Laurel Hous. Auth., 151 So.3d 256, 2014 Miss. App. LEXIS 661 (Miss. Ct. App. 2014).

School district was not entitled to summary judgment, based on governmental immunity, when an independent contractor fell through a hole in a catwalk above a high school stage and alleged that the district’s negligent maintenance of the theater led to the contractor’s injuries because the discretionary-function exemption did not bar the contractor’s claim that the school district failed to carry out its duty to maintain the theater. Calonkey v. Amory Sch. Dist., 163 So.3d 940, 2014 Miss. App. LEXIS 499 (Miss. Ct. App. 2014), cert. denied, 163 So.3d 301, 2015 Miss. LEXIS 238 (Miss. 2015).

School district was not entitled to summary judgment, based on governmental immunity, when an independent contractor fell through a hole in a catwalk above a high school stage and alleged that the district’s negligent maintenance of the theater led to the contractor’s injuries because the obvious-dangerous-condition exemption did not bar the contractor’s claim that the school district’s negligence led to the dangerous condition. Calonkey v. Amory Sch. Dist., 163 So.3d 940, 2014 Miss. App. LEXIS 499 (Miss. Ct. App. 2014), cert. denied, 163 So.3d 301, 2015 Miss. LEXIS 238 (Miss. 2015).

Because there was substantial credible evidence that a school district had notice of a protruding conduit before plaintiff tripped over it, the circuit court did not abuse its discretion when it found that the district was not entitled to immunity under the Mississippi Tort Claims Act’s dangerous-condition exemption. Natchez-Adams Sch. Dist. v. Bruce, 2014 Miss. App. LEXIS 485 (Miss. Ct. App. Sept. 9, 2014), op. withdrawn, sub. op., — So.3d —, 2015 Miss. App. LEXIS 221 (Miss. Ct. App. Apr. 21, 2015), sub. op., 168 So.3d 1181, 2015 Miss. App. LEXIS 231 (Miss. Ct. App. 2015).

State administrative agency was not liable when a claimant alleged that an employee of the agency falsely imprisoned the claimant in the lobby of a state office building because the agency was entitled to immunity for its employment of the employee under Miss. Code Ann. §§11-46-9(1)(d) and11-46-9(1)(g). Bell v. Miss. Dep't of Human Servs., 126 So.3d 999, 2013 Miss. App. LEXIS 826 (Miss. Ct. App. 2013).

Where three drivers appealed the Miss. R. Civ. P. 12(b)(6) dismissal of their claim against the Mississippi Department of Transportation (MDOT) because of discretionary-function immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §65-1-65 required the MDOT to maintain and repair state highways, and the MDOT was not entitled to discretionary-function immunity for failure to properly maintain and repair highways because that function was ministerial. It was the function, not the act, to which the MTCA granted or denied immunity. Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Trial court erred in ruling that discretionary immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., barred a personal injury action, because a genuine issue of material fact existed as to whether a school district breached its duty of ordinary care in performing its ministerial duty to maintain discipline and to supervise the students, when one student assaulted another student, as required by the school district’s handbook. Swindle v. Neshoba County Sch. Dist., 137 So.3d 869, 2013 Miss. App. LEXIS 574 (Miss. Ct. App. 2013), cert. denied, 139 So.3d 74, 2014 Miss. LEXIS 235 (Miss. 2014).

There was no evidence the City caused or had actual notice of any loose dirt or gravel in the area where the pedestrian fell to support a claim under this section since: (1) there was no evidence that the parks and recreation director did not exercise reasonable care in inspecting the park on his daily inspections; (2) there were no complaints from park visitors about the condition of the ground in the area; and (3) the pedestrian assumed that when her foot hit the loose gravel, the loose gravel made her slip. Hawkins v. City of Morton, 119 So.3d 1104, 2013 Miss. App. LEXIS 278 (Miss. Ct. App. 2013).

City was entitled to summary judgment in an arrestee’s claim for injury allegedly suffered during an arrest because, under Miss. Code Ann. §11-46-9(1)(c), the city was immune unless the officer acted in reckless disregard of the safety and well-being of the arrestee, and the officer’s actions did not rise to the level of reckless disregard; the officer’s conduct was a reasonable precautionary measure in response to surrounding circumstances. When the arrestee deliberately disobeyed the his directive, the officer was forced to act for his safety and the safety of the arrestee. City of Jackson v. Gardner, 108 So.3d 927, 2013 Miss. LEXIS 68 (Miss. 2013).

City was not liable for the death of a runaway at the hands of her boyfriend, as there was no showing that police officers violated the police department’s policy by failing to ascertain that the child was a runaway minor and failing to take her into custody, or that they acted with reckless disregard for the child’s safety and well-being. City of Jackson v. Sandifer, 107 So.3d 978, 2013 Miss. LEXIS 60 (Miss. 2013).

City was not liable for its alleged failure to properly investigate a runaway’s claim that she had sex with a police officer, because any failure by the city to properly investigate the officer constituted negligence, for which the city was not liable. City of Jackson v. Sandifer, 107 So.3d 978, 2013 Miss. LEXIS 60 (Miss. 2013).

Provisions of Miss. Code Ann. §11-46-9(1)(c), which provided government immunity for duties or activities related to police or fire protection, applied to a vehicle accident involving a Mississippi Forestry Commission employee who had fire suppression duties; the statute did not limit immunity to police officers and fire departments. Herndon v. Miss. Forestry Comm'n, 67 So.3d 788, 2010 Miss. App. LEXIS 636 (Miss. Ct. App. 2010), cert. denied, 69 So.3d 9, 2011 Miss. LEXIS 380 (Miss. 2011).

Mississippi Transportation Commission was immune under Miss. Code Ann. §11-46-9(1)(d) from liability for injuries suffered by a driver from a dead tree that fell on his car. There was no evidence that the dead tree was known about prior to the accident, and there was no requirement for inspecting trees along the highway. Farris v. Miss. Transp. Comm'n, 63 So.3d 1241, 2011 Miss. App. LEXIS 158 (Miss. Ct. App. 2011), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

City was immune from homeowners’ claims arising from sewer back-ups as a result of a city ordinance requiring larger sewer lines than were present on the homeowners’ property because Jackson, Miss., Ordinances art. II, § 205(4) exempted the homeowners’ subdivision from the ordinance, so the ordinance did not cause the city’s maintenance of the city’s sewage system to be a ministerial function. Fortenberry v. City of Jackson, 71 So.3d 1196, 2011 Miss. LEXIS 88 (Miss. 2011).

City was immune from homeowners’ claims arising from sewer back-ups because, if the city was otherwise liable for a discretionary decision resulting in damage, Miss. Code Ann. §11-46-9(1)(d) shielded the city from liability. Fortenberry v. City of Jackson, 71 So.3d 1196, 2011 Miss. LEXIS 88 (Miss. 2011).

Judgment dismissing appellant’s negligence case under the Mississippi Tort Claims Act against the county was affirmed where (1) the County did provide adequate warning that the bridge was out; and (2) in addition to being under the influence of alcohol, appellant was an adult who knew the bridge was out prior to that date, and knowingly proceeded past warning signs and dirt barriers. Martin v. Franklin County, 29 So.3d 862, 2010 Miss. App. LEXIS 124 (Miss. Ct. App. 2010).

State transportation department was entitled to immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(v), for a lawsuit based on a vehicular collision occurring when a car hydroplaned in water pooled on a highway after a heavy rainstorm because under §11-46-9(1)(v), there was no liability for accidents caused by a dangerous condition that was open and obvious to one exercising due care, and the increased risk of hydroplaning in inclement weather was such an open and obvious risk. Lee v. Miss. DOT, 37 So.3d 73, 2009 Miss. App. LEXIS 604 (Miss. Ct. App. 2009), cert. dismissed, 34 So.3d 1176, 2010 Miss. LEXIS 243 (Miss. 2010), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

State transportation department was entitled to immunity under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(q), for a lawsuit based on a vehicular collision occurring when a car hydroplaned in water pooled on a highway after a heavy rainstorm because under §11-46-9(1)(q), there was no liability for accidents arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways, and the accident was solely caused by the inclement weather. Lee v. Miss. DOT, 37 So.3d 73, 2009 Miss. App. LEXIS 604 (Miss. Ct. App. 2009), cert. dismissed, 34 So.3d 1176, 2010 Miss. LEXIS 243 (Miss. 2010), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Legislature determined that it is necessary to protect governmental entities and their employees from liability for the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury, but the Legislature has not burdened non-governmental entities and private persons with liability for personal injuries sustained by an employee of a governmental entity when that person’s actions fall somewhere in between simple negligence and the reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury. Thompson v. Rizzo Farms, Inc., 27 So.3d 452, 2009 Miss. App. LEXIS 568 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 67 (Miss. 2010).

Trial court did not apply an incorrect standard of care for comparative negligence when it failed to require an employee to show that a county sheriff’s deputy acted with reckless disregard because the deputy was not afforded the protection provided by Miss. Code Ann. §11-46-9(1)(c) when his personal injury suit against the employer, a non-governmental entity, was not a claim as defined under Miss. Code Ann. §11-46-1(a); §11-46-9(1)(c) limits liability, not fault, when a plaintiff files suit against a governmental entity, and there was no reason why it should prohibit the allocation of fault when an employee of the governmental entity files suit against a non-governmental entity. Thompson v. Rizzo Farms, Inc., 27 So.3d 452, 2009 Miss. App. LEXIS 568 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 67 (Miss. 2010).

Where an inmate sued prison officials for allegedly denying his visitation privileges, Miss. Code Ann. §11-46-9(1)(m) provided the officials with immunity from the inmate’s claim for monetary damages; however, the prison officials were not immune from the inmate’s request for injunctive relief. The trial court erred by dismissing that claim under the Mississippi Tort Claims Act. Roland v. Epps, 10 So.3d 972, 2009 Miss. App. LEXIS 237 (Miss. Ct. App. 2009).

City and gym were immune under Miss. Code Ann. §11-46-9 with regard to a mother’s personal injury action arising out of the injuries of a minor child who fell through a ceiling at the gym because the mother failed to prove that the child’s injury was caused by dangerous condition, to show that the city or the gym had actual or constructive notice that the child had climbed into the false ceiling and was in danger of falling to the floor, or to show that there was adequate time to protect or warn against danger. Kaigler v. City of Bay St. Louis, 12 So.3d 577, 2009 Miss. App. LEXIS 380 (Miss. Ct. App. 2009).

Where an inmate sued prison officials for allegedly denying his visitation privileges, Miss. Code Ann. §11-46-9(1)(m) provided the officials with immunity from the inmate’s claim for monetary damages; however, the prison officials were not immune from the inmate’s request for injunctive relief. The trial court erred by dismissing that claim under the Mississippi Tort Claims Act. Roland v. Epps, 10 So.3d 972, 2009 Miss. App. LEXIS 237 (Miss. Ct. App. 2009).

Officer’s behavior did not constitute reckless disregard under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(c), where the officer’s actions would not have been reasonably foreseeable by the owner; based on the totality of the circumstances, the officer’s conduct was a reasonable reaction to what he perceived to be a potentially dangerous situation, and the finding that the officer’s conduct failed to rise to the level of reckless disregard was sufficient to dispose of the resident’s contentions that the officer’s actions were unwarranted and excessive. Scott v. City of Goodman, 997 So. 2d 270, 2008 Miss. App. LEXIS 783 (Miss. Ct. App. 2008).

Dismissal of an inmate’s case arising from an assault by a fellow prisoner was proper because there was immunity under Miss. Code Ann. §11-46-9(1)(m), and there was no showing of deliberate indifference in relation to claims of an alleged failure to protect and an alleged failure to provide adequate medical treatment. No hearing was warranted because it was clear from the record that the inmate was not entitled to any relief. Clay v. Epps, 19 So.3d 743, 2008 Miss. App. LEXIS 565 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 158 (Miss. 2009).

Trial court properly dismissed a student’s negligence action against a school system for failure to protect the student from harassment by fellow students where the system exercised ordinary care and conducted a reasonable investigation into the alleged incidents of harassment; hence, the system was immune from any liability pursuant to the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9(1)(b). Beacham v. City of Starkville Sch. Sys., 984 So. 2d 1073, 2008 Miss. App. LEXIS 368 (Miss. Ct. App. 2008).

With respect to an accident victim’s Mississippi Tort Claims Act suit against a county arising from an automobile accident with a county sheriff’s deputy, a trial court properly granted summary judgment to the county because the victim failed to establish that the deputy acted recklessly, rather than negligently, when backing his vehicle out of a parking space. Vo v. Hancock County, 989 So. 2d 414, 2008 Miss. App. LEXIS 292 (Miss. Ct. App. 2008).

Mississippi Department of Transportation (MDOT) was entitled to summary judgment in the injured driver’s suit for damages arising out of a car accident that occurred while the highway was being refurbished. The injured driver did not put forward evidence that MDOT had notice of any defective condition; therefore, MDOT was immune from liability under Miss. Code Ann. §11-46-9. Frazier v. Miss. DOT, 970 So. 2d 221, 2007 Miss. App. LEXIS 810 (Miss. Ct. App. 2007).

Inmate was incarcerated when the inmate filed a complaint against numerous governmental entities and employees; those governmental entities and employees were immune from the inmate’s lawsuit and the chancellor properly dismissed the inmate’s complaint. Bessent v. Clark, 974 So. 2d 928, 2007 Miss. App. LEXIS 633 (Miss. Ct. App. 2007).

In a 42 U.S.C.S. § 1983 case against a city that also alleged state tort claims, since the facts as set forth in the complaint did not rise to level of reckless disregard, a city was not liable under the Mississippi Tort Claims Act. Bynum v. City of Magee, 507 F. Supp. 2d 627, 2007 U.S. Dist. LEXIS 61035 (S.D. Miss. 2007).

In a child’s suit against the Mississippi Department of Human Services (DHS), failure to investigate a child’s allegations of sexual abuse by an employee of a youth care facility was a ministerial act for which DHS could be held liable. Miss. Dep't of Human Servs. v. S.W., 974 So. 2d 253, 2007 Miss. App. LEXIS 503 (Miss. Ct. App. 2007).

Trial court erred in granting a sheriff, county, and surety summary judgment on an individual’s claims of false imprisonment and negligence where the individual raised issues of fact as to whether the sheriff or his deputies complied with their duties in accepting surrender from a bail bondsman, and whether they evinced a reckless disregard for the individual’s safety and well-being in accepting his surrender. Brooks v. Pennington, 995 So. 2d 733, 2007 Miss. App. LEXIS 378 (Miss. Ct. App. 2007), cert. dismissed, 2008 Miss. LEXIS 680 (Miss. Dec. 4, 2008).

Trial court erred by holding that the city was immune from liability under Miss. Code Ann. §11-46-9(1)(d), and therefore it erred by granting the city summary judgment because the trial court failed to consider the second prong of the public policy test, which required that the choice involved social, economic, or political policy. Willing v. Estate of Benz, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App.), cert. denied, 958 So. 2d 1232, 2007 Miss. LEXIS 340 (Miss. 2007).

City was entitled to immunity under the mob exemption under Miss. Code Ann. §11-46-9(1)(u), and therefore the city’s motion for summary judgment was properly granted in the party guest’s personal injury action, because: (1) the actions of the angry crowd of teenagers constituted a riot, as the party guest testified that there were at least 15 people assembled on the night in question, all angry with the party guest and attempting to seriously injury or kill him by wielding knives and throwing sticks and bricks at him; and (2) the bystander who stole the officer patrol car and struck the party guest with it was part of the rioting mob, and therefore the party guest’s claim arose out of and resulted from the riot. Chapman v. City of Quitman, 954 So. 2d 468, 2007 Miss. App. LEXIS 176 (Miss. Ct. App. 2007).

Trial court erred by granting the city summary judgment under the discretionary function exemption under Miss. Code Ann. §11-46-9(1)(d) because the trial court applied only the first prong of the public policy function test rather than both prongs. Chapman v. City of Quitman, 954 So. 2d 468, 2007 Miss. App. LEXIS 176 (Miss. Ct. App. 2007).

Summary judgment was properly granted to a county based on sovereign immunity under Miss. Code Ann. §11-46-9(1)(d) because the decision to backfill a road instead of paving it after the upgrade or installation of a culvert was a discretionary function; even though the failure to place a warning sign was a ministerial function, there was no liability for the county because the condition of the roadway, and not the failure to place the sign, was the cause of the accident. Barr v. Hancock County, 950 So. 2d 254, 2007 Miss. App. LEXIS 109 (Miss. Ct. App. 2007).

Trial court properly granted summary judgment to a county constable under Miss. R. Civ. P. 56 in a personal injury suit because the constable had immunity, under Miss. Code Ann. §11-46-9(1)(c), for injuries to a father, which occurred when the constable’s car collided with his four-wheeler, because there was significant evidence that the father was engaged in criminal activity that had a causal nexus to the accident; the father was driving on a suspended license and pled guilty to reckless driving, however summary judgment against the father’s sons was improper because genuine issues of fact existed as to whether the sons were engaged in criminal activity, whether any criminal activity on the part of the sons had a causal nexus to the accident, and whether the constable acted with reckless disregard in his pursuit of appellants. Giles v. Brown, 962 So. 2d 612, 2006 Miss. App. LEXIS 930 (Miss. Ct. App. 2006), cert. denied, 962 So. 2d 38, 2007 Miss. LEXIS 477 (Miss. 2007).

Summary judgment was properly granted to a city in a negligence case based on a fall from a raised sidewalk crack because the city had immunity under Miss. Code Ann. §11-46-9(1)(v); the city did not have a duty to maintain the sidewalks in a perfect condition, it did not have notice, and the open and obvious defense applied. Howard v. City of Biloxi, 943 So. 2d 751, 2006 Miss. App. LEXIS 893 (Miss. Ct. App. 2006).

City was immune from liability under Miss. Code Ann. §11-46-9(1)(q), and therefore it was properly granted summary judgment in the family’s wrongful death action, because the ice was caused solely by the effect of weather, and the family did not point to any evidence that the city or the officer contributed to or were responsible for the formation of the ice patch on the highway. Willing v. Benz, 2006 Miss. App. LEXIS 873 (Miss. Ct. App. Nov. 21, 2006), sub. op., op. withdrawn, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App. 2007).

City was immune from liability under Miss. Code Ann. §11-46-9(1)(c), and therefore it was properly granted summary judgment in the family’s wrongful death action, because the officer’s conduct did not amount to reckless disregard for the safety of the traveling public; the officer notified his dispatcher of the condition of the highway and the dispatcher promptly notified the Mississippi Department of Transportation so that sand or salt could be applied to the ice patch. Willing v. Benz, 2006 Miss. App. LEXIS 873 (Miss. Ct. App. Nov. 21, 2006), sub. op., op. withdrawn, 958 So. 2d 1240, 2007 Miss. App. LEXIS 191 (Miss. Ct. App. 2007).

Trial court erred in sua sponte entering a default judgment against a city under Miss. R. Civ. P. 55 in a suit brought under the Mississippi Tort Claims Act, specifically Miss. Code Ann. §11-46-9(1)(c); although the city did not timely answer plaintiff’s amended complaint pursuant to Miss. R. Civ. P. 15(a), the parties continued to engage in discovery for over four years and plaintiff had no intention of seeking of a default judgment. City of Jackson v. Presley, 942 So. 2d 777, 2006 Miss. LEXIS 649 (Miss. 2006).

Trial court did not err in finding that the Mississippi Department of Transportation (MDOT) was immune from liability for a traffic accident pursuant to Miss. Code Ann. §11-46-9(1) as credible evidence supported the court’s finding that the parents of an infant who died from the injuries she received in the collision had failed to prove that the MDOT had had notice of a dangerous condition at the intersection, at least prior to the instant accident. Reeves v. Miss. DOT, 941 So. 2d 884, 2006 Miss. App. LEXIS 821 (Miss. Ct. App. 2006).

Finding in favor of the husband and wife in their action against the city for personal injuries and loss of consortium was appropriate pursuant to Miss. Code Ann. §11-46-9(1)(v) because the coal grate at issue was a dangerous condition. City of Natchez v. Jackson, 941 So. 2d 865, 2006 Miss. App. LEXIS 686 (Miss. Ct. App. 2006).

Department of mental health was found liable for negligence because a psychiatric hospital owed a duty of care to, inter alia, monitor the patient, and an injury during an escape was foreseeable. Immunity under Miss. Code Ann. §11-46-9(d) did not apply either because the duties owed were not discretionary based on Miss. Code Ann. §41-21-102(6). Miss. Dep't of Mental Health v. Hall, 936 So. 2d 917, 2006 Miss. LEXIS 462 (Miss. 2006).

In a wrongful death action filed by the parents of two passengers who were killed during a police pursuit of the driver of a stolen vehicle, a city was properly granted summary judgment because the court could not find that the officer recklessly disregarded the passengers’ safety when considering the totality of the circumstances; evidence showed, inter alia, that: (1) the driver’s flight from the police lasted for a matter of minutes over five miles; (2) the flight did not occur on a residential street or within a residential neighborhood; (3) there was little or no testimony regarding the characteristics of the streets on which the flight took place; (4) traffic was light; (5) the weather was sunny and clear; and (6) the driver was operating a stolen vehicle with a suspended license and the officer noticed him because of his excessive speed and reckless driving. McCoy v. City of Florence, 949 So. 2d 69, 2006 Miss. App. LEXIS 526 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 113 (Miss. 2007).

In a wrongful death action filed by the parents of two passengers who were killed during a police pursuit of the driver of a stolen vehicle, a city was properly granted summary judgment because the passengers were engaged in criminal activity, as there was no dispute that they knew that the car was stolen and that they encouraged the driver to flee from the police, in violation of Miss. Code Ann. §97-35-7(2). McCoy v. City of Florence, 949 So. 2d 69, 2006 Miss. App. LEXIS 526 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 113 (Miss. 2007).

In a wrongful death action filed by the parents of two passengers who were killed during a police pursuit of the driver of a stolen vehicle, a county and a city were properly granted summary judgment because neither were involved in the pursuit. McCoy v. City of Florence, 949 So. 2d 69, 2006 Miss. App. LEXIS 526 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 113 (Miss. 2007).

Dismissal of the decedent’s mother’s and a student’s action against a state university resulting from a shooting on campus was appropriate under Miss. Code Ann. §11-46-9(1)(v) where the underlying act of the claims was the fact that the gunman shot the victims; they cited no authority suggesting that the university, through an employee, had a duty to warn the victims of the dangerous conditions of the gunman’s character. Johnson v. Alcorn State Univ., 929 So. 2d 398, 2006 Miss. App. LEXIS 406 (Miss. Ct. App. 2006).

Where plaintiff parent sued defendant school district in state court alleging her child was sexually assaulted at school and obtained a judgment under the Mississippi Tort Claims Act, her later claims in federal court were properly held as barred due to res judicata; while school districts’ sources of funding under Miss. Code Ann. §37-45-21,37-47-1 et seq., Miss. Code Ann. §37-57-1, Miss. Code Ann. §37-59-3, and Miss. Code Ann. §37-151-7 were equally divided between local school districts and the state under Miss. Code Ann. §11-46-7, Miss. Code Ann. §11-46-16(2), and Miss. Code Ann. §11-46-17(2), any judgment against the school district would be paid through the Tort Claims Fund and excess liability insurance, and thus, the school district was not considered an arm of the state entitled to Eleventh Amendment immunity as Miss. Code Ann. §11-46-5(1) permitted school districts to be sued. Black v. N. Panola Sch. Dist., 461 F.3d 584, 2006 U.S. App. LEXIS 21259 (5th Cir. Miss. 2006).

Summary judgment was properly awarded to a county medical center in plaintiff’s negligence action where the medical center was immune from liability under Miss. Code Ann. §11-46-9(1)(v); there was no evidence that the medical center caused the dangerous condition of a chair-bed that collapsed when plaintiff sat on it. Hodges v. Madison County Med. Ctr., 929 So. 2d 381, 2006 Miss. App. LEXIS 391 (Miss. Ct. App. 2006).

Summary judgment was granted to a police officer and a city in a personal injury case arising from an arrest because the evidence did not show that the officer acted with reckless disregard under Miss. Code Ann. §11-46-9(1)(c); an arrestee only complained once that handcuffs were too tight, and there was no evidence of medical bills or lost wages. Bradley v. McAllister, 929 So. 2d 377, 2006 Miss. App. LEXIS 387 (Miss. Ct. App. 2006).

Mississippi Department of Wildlife, Fisheries, and Parks should have been granted immunity under Miss. Code Ann. §11-46-9(1)(v) because there was insufficient evidence to establish that there was a dangerous condition on the Department’s property of which it had constructive notice and time to correct or warn against. There was no evidence that the Department had prior notice of the drop-off where the visitor fell, which the trial court found was covered by leaves and pine straw; there was no evidence that the Department failed to exercise reasonable care in its inspections of the roadways, as a risk management supervisor testified that he inspected the park about a month before the visitor’s fall and found no drop-offs that needed to be corrected. Miss. Dep't of Wildlife, Fisheries & Parks v. Brannon, 943 So. 2d 53, 2006 Miss. App. LEXIS 204 (Miss. Ct. App. 2006).

Appellate court affirmed the grant of summary judgment in favor of a county in wrongful death action brought by the personal representative of the decedent who was an inmate when he was killed in an accident after having volunteered for garbage detail because Miss. Code Ann. §11-46-9(1)(m) specifically precluded state tort claims by inmates. Powell v. Clay County Bd. of Supervisors, 924 So. 2d 523, 2006 Miss. LEXIS 112 (Miss. 2006).

Judgment was properly awarded to the Mississippi Transportation Commission (MTC) in plaintiff’s negligence action under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-9, where substantial evidence showed that the MTC had no notice of a defective shoulder, plaintiff produced no evidence showing that the defect was noticeable upon passing, and there was no evidence that any verbal or written complaints were filed prior to plaintiff’s collision with another vehicle. Jones v. Miss. Transp. Comm'n, 920 So. 2d 516, 2006 Miss. App. LEXIS 69 (Miss. Ct. App. 2006).

Summary judgment was granted in favor of defendant city and police officers in a 42 U.S.C.S. § 1983 suit alleging false arrest and imprisonment, malicious prosecution, and intentional and/or negligent infliction of emotional distress filed by two citizens arrested for an arson/murder but later exonerated; although the officers could have done a more thorough investigation at the scene, they did not act recklessly under Miss. Code Ann. §11-46-9(1)(c). Mitchell v. City of Jackson, 481 F. Supp. 2d 586, 2006 U.S. Dist. LEXIS 95887 (S.D. Miss. 2006), aff'd, 223 Fed. Appx. 411, 2007 U.S. App. LEXIS 6889 (5th Cir. Miss. 2007).

Where an assistant district attorney was acting in the scope of her employment by providing police with identifying information regarding a person who had committed the crime of false pretenses, even though the information was incorrect, there was no liability under Miss. Code Ann. §11-46-9(1)(d). Stewart v. DA, 923 So. 2d 1017, 2005 Miss. App. LEXIS 589 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 161 (Miss. 2006).

Bridge contractor was hired by Mississippi Department of Transportation as an independent contractor, and under the language of the contract, said contractor bore responsibility for the signage at the construction site; however, under the Mississippi Torts Claim Act, Miss. Code Ann. §11-46-1 et seq., MDOT could have still been liable under the narrow exceptions of Miss. Code Ann. §11-46-9(1)(p) and (v), if MDOT had notice of the dangerous condition, and MDOT had adequate opportunity to protect or warn against the dangerous condition; in the latter respect, in the case at bar, MDOT’s liability for the lack of warning signs and other measures at the bridge construction site was a question of fact, where it was clear that an MDOT representative made frequent visits to the construction site, and it was clear that at least on one occasion, MDOT requested that the contractor install additional warning devices. Chisolm v. Miss. DOT, 942 So. 2d 165, 2005 Miss. App. LEXIS 560 (Miss. Ct. App. 2005), rev'd, 942 So. 2d 136, 2006 Miss. LEXIS 638 (Miss. 2006).

Under Miss. Code Ann. §11-46-9(1)(v), the Mississippi Department of Transportation (MDOT) and its employees could not be liable for any claim resulting from a dangerous condition on the State’s property if: (1) that condition was not caused by the negligence or wrongful conduct of the employee, or (2) MDOT lacked notice and an adequate opportunity to warn of the dangerous condition. However, in the case at bar, based on testimony of MDOT employees, the appellate court found that there were clearly issues of fact for the jury as far as MDOTs notice of a dangerous condition at the bridge construction site, and MDOTs opportunity to have warned or protected against the condition; thus, in the suit by the heirs of the decedent who was killed at said construction site, summary judgment for the MDOT was improper. Chisolm v. Miss. DOT, 942 So. 2d 165, 2005 Miss. App. LEXIS 560 (Miss. Ct. App. 2005), rev'd, 942 So. 2d 136, 2006 Miss. LEXIS 638 (Miss. 2006).

Mississippi county was fraudulently joined in a suit, arising out of a fatal car accident because: (1) the county did not have any legal responsibility with regard to the posting of a stop sign at the intersection where the accident occurred, (2) Miss. Code Ann. §63-3-305 granted discretionary authority to the county to place and maintain traffic control devices upon highways within the county, (3) under Miss. Code Ann. §11-46-9(1)(d), the county could not be held liable for its exercise of discretionary power under Miss. Code Ann. §63-3-305, even if an abuse of discretion was shown, and (4) although there was precedent under Mississippi law to hold municipalities liable, either under Miss. Code Ann. §11-46-9(1)(b) or (1)(w), for failing to warn about known dangerous conditions on roads, no reasonable factfinder would find that the motorist who caused the accident was not adequately warned about the approaching intersection. Dozier v. Hinds County, 379 F. Supp. 2d 834, 2005 U.S. Dist. LEXIS 15666 (S.D. Miss. 2005).

Trial court had not committed reversible error by failing to find it immune from liability under Miss. Code Ann. §11-46-9(1)(c) because the person who brought a suit against the city and police officers was contemporaneously engaged in criminal activity because the crimes for which he was charged and convicted ceased prior to the delivery of the offensive blows by the officers. His attempt to resist arrest ended, at the latest under the facts of the instant case, when he was handcuffed. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

Although a trial court had not erred when it held that a city was not liable for the acts of two police officers during and after an arrest of an African-American male because the officers had acted beyond the scope of their employment, the court erred when it found the city liable because it had negligently supervised the officers. There was not a scintilla of evidence presented to indicate that the city had any policy which encouraged the type of activity that the officers engaged in and there was no factual support for the factual holding that the city was deliberately indifferent to the rights of African-Americans. City of Jackson v. Powell, 917 So. 2d 59, 2005 Miss. LEXIS 755 (Miss. 2005).

Appellate court affirmed grant of summary judgment in favor of the county because the testimony of the individual and a third party was sufficient to establish that dense fog was the sole proximate cause of the accident, and thus, the county was entitled to immunity under Miss. Code Ann. §11-46-9 (1)(q). Hayes v. Greene County, 932 So. 2d 831, 2005 Miss. App. LEXIS 774 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 521 (Miss. 2006).

Teacher’s aide was walking side-by-side with an autistic child when the child had an anxiety attack, and during said anxiety attacks, it was common for the child to become violent with other children and to hit them. During the particular anxiety attack, the child was running into walls and tables, and for those reasons, the aide was required to act quickly in order to prevent the child from hurting himself or others; under those circumstances, the aide took reasonable steps to minimize the risk of harm to the child who suffered bruises during the incident and the child’s parents were not entitled to damages on grounds of school district negligence. Pigford v. Jackson Pub. Sch. Dist., 910 So. 2d 575, 2005 Miss. App. LEXIS 90 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 545 (Miss. 2005).

When a teacher’s aide was escorting the autistic child to his classroom, the child became agitated while he aide continued to move him through the hallway. The child suffered bruises as a result of the teacher’s aide’s fully sensible attempts to restrain him, and no treatment or medication was warranted or prescribed for said bruises; the aide’s restraint of the child constituted control and discipline under Miss. Code Ann. §37-11-57, and the circuit court properly applied Miss. Code Ann. §11-46-9(1)(x) in finding that said actions did not constitute wanton and willful conduct to allow the parents to recover damages. Pigford v. Jackson Pub. Sch. Dist., 910 So. 2d 575, 2005 Miss. App. LEXIS 90 (Miss. Ct. App.), cert. denied, 920 So. 2d 1008, 2005 Miss. LEXIS 545 (Miss. 2005).

Paramedic testified that the “hallmark signs” of a placental abruption, excruciating pain and excessive bleeding, were not present, and both paramedics testified that they did not see blood. The pregnant employee testified that blood was not found because her co-workers had wiped the blood from the floor, but the trial court properly found that since neither paramedic testified that they saw blood, then it could only find such a decision to be discretionary; therefore, given that the employee’s condition was abnormal, whether to have treated the situation as a “load and go” required the paramedics to use their own judgment, the trial court correctly deemed the paramedic’s decision as discretionary, and it correctly granted the city’s motion to dismiss the wrongful death action under Miss. R. Civ. P. 41(b). Sanders v. Riverboat Corp., 913 So. 2d 351, 2005 Miss. App. LEXIS 272 (Miss. Ct. App. 2005).

Husband’s claims against his employer’s personnel officers were properly dismissed because officers, as employees of a state prison, were acting within the scope of their employment when they collected insurance premiums while wife’s life insurance application, which was ultimately denied, was pending. Smith v. Med. Life Ins. Co., 910 So. 2d 48, 2005 Miss. App. LEXIS 52 (Miss. Ct. App. 2005).

Absent evidence showing otherwise, state environmental agencies and their employee were immune to landowners’ claims of tortious interference with contract and business relations concerning the development of protected wetlands that belonged to the landowners. Dunston v. Miss. Dep't of Marine Res., 892 So. 2d 837, 2005 Miss. App. LEXIS 66 (Miss. Ct. App. 2005).

In a citizen’s excessive force action, substantial evidence supported the circuit court’s finding that the city was liable for the citizen’s injuries pursuant to Miss. Code Ann. §11-46-9(1)(c) because the police officers’ actions were not reasonable or in good faith, and the citizen was not engaged in criminal conduct at the time of his injuries. The record showed that the citizen had been arrested for resisting arrest and disorderly conduct, was handcuffed and in submission, and that one officer ground the citizen’s face into the concrete garage floor, causing his teeth to break. City of Jackson v. Calcote, 910 So. 2d 1103, 2005 Miss. App. LEXIS 49 (Miss. Ct. App. 2005).

In a family’s suit following a car accident, summary judgment in favor of the department of transportation, the county, and the engineer was proper as the family failed to produce sufficient evidence to establish that the last inspection by the department was negligently performed, or that the county or the engineer negligently inspected and maintained the culvert. Jenkins v. Miss. DOT, 904 So. 2d 1207, 2004 Miss. App. LEXIS 1050 (Miss. Ct. App. 2004).

Contractor had not presented any evidence that the Mississippi Department of Transportation (MDOT) was entitled to immunity from liability based upon the exemption set forth in Miss. Code Ann. §11-46-9, and MDOT could not be deemed to have been fraudulently joined in the action based upon an alleged exemption under §11-46-9. Johnson v. James Constr. Group, LLC, 306 F. Supp. 2d 654, 2004 U.S. Dist. LEXIS 2597 (S.D. Miss. 2004).

Dismissal of an inmate’s claim against the employees of the Missouri Department of Corrections was proper where the employees were acting within the course and scope of their employment; the inmate’s negligence action was barred by the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq.,11-46-9-(1)(m). Whitt v. Gordon, 872 So. 2d 71, 2004 Miss. App. LEXIS 56 (Miss. Ct. App. 2004).

Deputy responding to a call from a fellow officer was not speeding and did not sound a siren because the deputy did not want there to be any accidents resulting from motorists coming to an abrupt stop, and while the deputy failed to anticipate that another vehicle might be pulling out from the blind spot in front of the truck in front of the deputy, the deputy’s decision to steer around that turning truck did not exhibit a wilful or wanton disregard for the safety of others or a willingness that harm should follow; thus, summary judgment for the county was proper. Kelley v. Grenada County, 859 So. 2d 1049, 2003 Miss. App. LEXIS 1080 (Miss. Ct. App. 2003).

In a slip and fall case, the trial court erred in not granting the city immunity under Miss. Code Ann. §11-46-9(1)(v) as the injured patient admitted that the steps and ramp outside the municipal building where he fell were covered with enough snow and ice for anyone to see and that he wasn’t paying attention as he left the building holding his money and a receipt. City of Clinton v. Smith, 861 So. 2d 323, 2003 Miss. LEXIS 550 (Miss. 2003).

In a wrongful death suit, as Miss. Code Ann. §11-46-9(1)(m) applied to any non-intentional/non-criminal acts alleged to have been committed upon a deceased inmate by a sheriff and/or his deputies while in the course and scope of their employment, the trial court correctly dismissed claims alleging negligent acts by defendants and properly left an assault claim viable; however, it erred by dismissing other counts that alleged intentional criminal acts, as pursuant to Miss. Code Ann. §§11-46-5(2),11-46-7(2), these claims remained viable under the wrongful death statute, Miss. Code Ann. §11-7-13 (Supp. 2003). Lee v. Thompson, 859 So. 2d 981, 2003 Miss. LEXIS 407 (Miss. 2003).

Before municipal officials could be found negligent, thereby entitling a plaintiff to recover, the plaintiff had to show the existence of a legal duty owed to him by the municipal officials; any assertion that the municipal officials breached a duty to the decedent because they failed to guarantee his safety and well-being was unrealistic and untenable, given that the municipal officials were not present when the threat on the decedent’s life was made, and the municipal officials, acting in their individual capacity, owed no duty to the decedent. Dependants of Reid v. City of Canton, 858 So. 2d 163, 2003 Miss. App. LEXIS 912 (Miss. Ct. App. 2003).

Trial court properly ruled that the Mississippi Department of Transportation (MDOT) was not immune from suit under Miss. Code Ann. §11-46-9, as it found that, while MDOT’s duty to inspect and maintain a highway where plaintiff’s accident occurred was discretionary, it failed to exercise a minimum standard of ordinary care when it did not give notice of the dangerous condition of the highway. Miss. DOT v. Cargile, 847 So. 2d 258, 2003 Miss. LEXIS 255 (Miss. 2003), overruled in part, Miss. Transp. Comm'n v. Montgomery, 2011 Miss. LEXIS 609 (Miss. Oct. 20, 2011), overruled in part, Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 2012 Miss. LEXIS 96 (Miss. 2012), overruled, Little v. Miss. DOT, 129 So.3d 132, 2013 Miss. LEXIS 551 (Miss. 2013).

Though the Mississippi Department of Transportation was not immune from suit, as the trial court properly found that a five to six inch drop-off on the shoulder of a road was a dangerous condition that was not obvious, which was created by the negligence of the Department and of which the Department knew but failed to warn against, the trial court erred by not assessing some degree of fault to plaintiff driver, who had been obliged to exercise vigilant caution when she learned the road was under construction. Miss. DOT v. Trosclair, 851 So. 2d 408, 2003 Miss. App. LEXIS 666 (Miss. Ct. App. 2003).

Where an individual worked for the Mississippi Bureau of Narcotics making drug buys, and was caught in the crossfire between a dealer and a Bureau officer, each factual allegation made by the individual to support the individual’s claim of breach of contract amounted to mere negligence; the individual did not claim the Bureau acted with “dishonest purpose or moral obliquity,” but claimed the Bureau made a series of bad choices, and that was insufficient on its face to constitute a breach of an implied covenant of good faith and fair dealing. Lippincott v. Miss. Bureau of Narcotics, 856 So. 2d 465, 2003 Miss. App. LEXIS 282 (Miss. Ct. App. 2003).

Where an individual worked for the Mississippi Bureau of Narcotics making drug buys, and was caught in the crossfire between a dealer and a Bureau officer, all the individual was able to show with regard to his negligence claim, was that the Bureau and its agents made a series of challengeable choices, from the level of training before sending an officer on a drug buy, to the directions given that officer; bad judgment, however, was insufficient for liability where the individual offered no evidence to meet the evidentiary burden of the reckless disregard standard. Lippincott v. Miss. Bureau of Narcotics, 856 So. 2d 465, 2003 Miss. App. LEXIS 282 (Miss. Ct. App. 2003).

Parolee fell under Miss. Code Ann. §47-7-71(1) of the Uniform Act for Out-of-State Parolee Supervision because the parolee’s parents lived in the state and the parolee indicated that parolee had a job in the state, and thus the State’s acceptance of the parolee under the Act was proper and mandatory; because there was nothing in the Act or the state corrections department regulations that required a field officer to revoke one’s parole, the officer’s decision not to revoke the parole after the parolee failed to timely report was an exercise of discretion, and because (1) there was no evidence of a gross, reckless, or wanton failure in the State’s supervision of the parolee, and (2) there was no sufficient causal connection or element of foreseeability between the alleged violated statutory duty and the injuries sustained by the victim when raped by a parolee, the State maintained the benefit of immunity under Miss. Code Ann. §11-46-9(1) of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., and the State was properly granted summary judgment in the victim’s action for damages. Connell v. State, 841 So. 2d 1127, 2003 Miss. LEXIS 147 (Miss. 2003), op. withdrawn, 2003 Miss. LEXIS 625 (Miss. Nov. 6, 2003), sub. op., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

Victim’s one-year window under Miss. Code Ann. §11-46-11(3) of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to et seq., to file a notice of claim against the State for damages related to the victim’s rape by a parolee did not begin to run until the day the victim was raped, and the victim’s notice of claim and complaint were timely filed, although the court ultimately found the State immune from liability under Miss. Code Ann. §11-46-9(1). Connell v. State, 841 So. 2d 1127, 2003 Miss. LEXIS 147 (Miss. 2003), op. withdrawn, 2003 Miss. LEXIS 625 (Miss. Nov. 6, 2003), sub. op., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

City was liable for the wrongful death of a driver under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., because several officers acted in reckless disregard of the safety of the driver when they initiated a police chase in violation of department policy. City of Jackson v. Brister, 838 So. 2d 274, 2003 Miss. LEXIS 79 (Miss. 2003).

Where driver merely alleged a police officer negligently collided with her vehicle, it was insufficient to defeat an immunity-based defense on summary judgment under Mississippi tort claims act because the driver failed to prove the act was willful or wanton or otherwise exhibited a reckless disregard for the safety and well being of others. Bonner v. McCormick, 827 So. 2d 39, 2002 Miss. App. LEXIS 521 (Miss. Ct. App. 2002).

In an action arising from an injury sustained by the plaintiff when a fight broke out at a high school basketball game, remand to the trial court was necessary because the trial court made no reference to ordinary care in its findings of fact and conclusions of law as to whether the defendant school district was immune from liability. Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 2001 Miss. LEXIS 94 (Miss. 2001).

The defendant city and police officers were immune from liability for injuries sustained by the plaintiff when he lost control of his vehicle while being pursued by police officers for traffic violations since it did not appear that the officers intentionally chased after the plaintiff in such a way as to frighten him and cause him to wreck his vehicle and since the plaintiff was engaged in criminal activity at the time of his accident, based on his possible speeding, his failure to yield to the blue lights, and his driving with a suspended license. Topps v. City of Hollandale, 2000 U.S. Dist. LEXIS 9925 (N.D. Miss. June 30, 2000).

A county may be held liable under subsection (1)(h) for damages for issuing a permit to perform work when it knows that the applicant who proposes to do the work is not duly licensed to perform the work in question since such conduct is arbitrary and capricious conduct violative of a statutory mandate. Lowe v. Lowndes County Bldg. Inspection Dep't, 760 So. 2d 711, 2000 Miss. LEXIS 66 (Miss. 2000).

A police officer who was struck by an automobile while riding a motorcycle and leading a funeral procession was barred from bringing suit against the defendant city and the defendant automobile driver (who was another police officer) as he was employed by a governmental entity and received worker’s compensation benefits provided by that entity. Leslie v. City of Biloxi, 758 So. 2d 430, 2000 Miss. LEXIS 87 (Miss. 2000).

Sovereign immunity was not an absolute bar to an action against a defendant school district for failing to act after a student told a teacher of a threat by another student; public schools have a ministerial responsibility to insure a safe school environment under §37-9-69 and should take reasonable steps to minimize risks to students. L.W. v. McComb Separate Mun. Sch. Dist., 1999 Miss. LEXIS 128 (Miss. Mar. 31, 1999), op. withdrawn, sub. op., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999).

The purchase of insurance by a school district under §11-46-17(4) does not limit the exclusions or exemptions enumerated in this section. L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999), overruled in part, Miss. Transp. Comm'n v. Montgomery, 2011 Miss. LEXIS 609 (Miss. Oct. 20, 2011), overruled in part, Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 2012 Miss. LEXIS 96 (Miss. 2012).

OPINIONS OF THE ATTORNEY GENERAL

Municipality does not have authority to waive immunity set forth in Section 11-46-1, et seq., by agreeing to indemnify railroad for claims; municipality does not have authority to agree to indemnify railroad for losses relating to use of license or arising from same location; city has authority to maintain shrubbery and vegetation on municipal property, but does not have authority to maintain shrubbery and vegetation on private property, such as railroad right-of-way. Scott Nov. 3, 1993, A.G. Op. #93-0727.

Members of Foster Care Review Board enjoy public official immunity for any of their acts arising out of and within course and scope of their duties on Board pursuant to Section 11-46-9 provided that conduct does not constitute fraud, malice, libel, slander, defamation or criminal offense. Tardy, Jan. 5, 1994, A.G. Op. #93-0972.

Section 11-46-9 would bar payment of damages to property seized unless the detention of the property was arbitrary or capricious. In addition, there is a one year statute of limitations under Section 11-46-11. Walters, March 29, 1996, A.G. Op. #96-0146.

Section 11-46-9(1) provides that a governmental entity and its employees shall not be liable for any claim “arising out of any work performed by a person convicted of a crime when the work is performed pursuant to any sentence or order of any court or pursuant to laws of the State of Mississippi authorizing or requiring such work.” An adjudication of delinquency by the Youth Court might not rise to the level of a criminal conviction. Trapp, July 8, 1996, A.G. Op. #96-0398.

Municipalities may insure themselves only for claims for which they are liable; the police and fire protection exemption specifically bars claims against municipalities and the city of Jackson may not gratuitously provide coverage. Tedder, March 13, 1998, A.G. Op. #98-0133.

If the Mississippi Department of Transportation denies an access permit to a state highway under its police power and the denial effectively prohibits ingress and egress to the individual requesting the permit, an aggrieved individual may seek judicial review of the denial of the permit; however, absent malicious, arbitrary, or capricious conduct, the denial of a permit is a legitimate exercise of police power by the Mississippi Department of Transportation. Brown, Mar. 22, 2002, A.G. Op. #02-0121.

Damages will not ordinarily lie against the Mississippi Department of Transportation or their employees for the denial of a permit for ingress and egress in cases to a state highway where there is no pre-existing right. Brown, Mar. 22, 2002, A.G. Op. #02-0121.

Employees acting within the scope and course of their employment are covered by the Tort Claims Act for breaches of fiduciary or administrative duties sounding in tort that are discretionary in nature; the same is not true regarding ministerial acts. Matthews, Dec. 6, 2002, A.G. Op. #02-0686.

The sheriff of the county of conviction, and/or where an inmate will be during temporary leave is exempt under the Mississippi Tort Claims Act from any legal liability as long as the sheriff is acting in the scope of his duties and shows no reckless disregard of the safety and well-being of any person not engaged in criminal activity. Trowbridge, Nov. 14, 2005, A.G. Op. 05-0472.

The basic common law immunity from liability for good faith actions still exists, except where modified by the Tort Claims Act. Mitchell, Sept. 29, 2006, A.G. Op. 06-0454.

RESEARCH REFERENCES

ALR.

Liability of municipal corporation or other governmental entity for injury or death caused by action or inaction of off-duty police officer. 36 A.L.R.5th 1.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant. 53 A.L.R.5th 617.

Liability of municipality or other governmental unit for failure to provide police protection from crime. 90 A.L.R.5th 273.

Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of federal tort claims act ( 28 U.S.C.S. § 2680(a)). 167 A.L.R. Fed. 1.

Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to Federal Tort Claims Act. 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act ( 28 U.S.C.S. § 2680(a)). 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act. 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act ( 28 U.S.C.S. § 2680(a)). 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.S. § 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications. 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.S. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer. 173 A.L.R. Fed. 465.

Am. Jur.

2A Am. Jur. Pl & Pr Forms (Rev), Assault and Battery, Form 72.1 (Complaint, petition, or declaration-Assault and battery – Plaintiff shot by police officer during arrest).

19A Am. Jur. Pl & Pr Forms (Rev), Penal and Correctional Institutions, Form 5.1 (Complaint, petition, or declaration – Against municipal corporation – Failure to prevent suicide of jail inmate – Survival and wrongful death action).

41 Am. Jur. Trials 1, Social Worker Malpractice for Failure to Protect Foster Children.

Law Reviews.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

1985 Mississippi Supreme Court Review – Administrative Law. 55 Miss. L. J. 735, December 1985.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Litigation in Mississippi Today: A Symposium: Comment: Mississippi Tort Claims Act: Is Discretionary Immunity Useless?, 71 Miss. L.J. 695, Winter, 2002.

Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues: Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss. L.J. 973, Spring, 2007.

§ 11-46-11. Statute of limitations; notice of claim requirements; savings clause in favor of infants and those of unsound mind.

  1. After all procedures within a governmental entity have been exhausted, any person having a claim under this chapter shall proceed as he might in any action at law or in equity, except that at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity.
    1. Service of notice of claim shall be made as follows:

      1. If the governmental entity is a county, then upon the chancery clerk of the county sued;

      2. If the governmental entity is a municipality, then upon the city clerk.

      1. For local governments:
      2. If the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), or is a political subdivision other than a county or municipality, service of notice of claim shall be had only upon that entity’s or political subdivision’s chief executive officer. The chief executive officer of a governmental entity participating in a plan administered by the board pursuant to Section 11-46-7(3) shall notify the board of any claims filed within five (5) days after receipt thereof.
    2. Every notice of claim shall:
      1. Be in writing;
      2. Be delivered in person or by registered or certified United States mail; and
      3. Contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought, and the residence of the person making the claim at the time of the injury and at the time of filing the notice.
    1. All actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designated official of a political subdivision receives the notice of claim.
    2. No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an additional ninety (90) days to file suit; failure to file within the time allowed is an absolute bar to any further proceedings under this chapter.
    3. All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only.
      1. To determine the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim is effective upon delivery by the methods statutorily designated in this chapter.
      2. The limitations period provided in this section controls and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations that would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.
  2. From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

HISTORY: Laws, 1984, ch. 495, § 7; reenacted without change, Laws, 1985, ch. 474, § 6; Laws, 1987, ch. 483, § 6; Laws, 1988, ch. 479, § 3; Laws, 1993, ch. 476, § 5; Laws, 1999, ch. 469, § 1; Laws, 2000, ch. 315, § 1; Laws, 2002, ch. 380, § 1; Laws, 2012, ch. 513, § 1, eff from and after July 1, 2012.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the fifth sentence of (3), as amended by Laws, 1999, ch. 469, § 1. The words “denial of notice of claim” were changed to “notice of denial of claim.” The Joint Committee ratified the correction at its April 28, 1999 meeting.

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Amendment Notes —

The 2000 amendment added (4).

The 2002 amendment substituted “April 1, 1993” for “May 15, 2000” in (4).

The 2012 amendment rewrote the section.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Legislative intent.

4. Applicability.

5. Relation to other laws.

6. “Chief executive officer.”

7. Form of notice.

8. Written notice.

9. Sufficiency of notice.

10. Time to file action.

11. Discovery rule.

12. Estoppel to assert statute of limitations.

13. Tolling of limitation period.

14. Minor savings clause.

15. Intervention.

16. Illustrative cases.

1. In general.

Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C.S. § 1395dd, incorporates and does not preempt Miss. Code Ann. §11-46-11(1), the State-law requirement at issue here, that defendant municipalities be given pre-suit notice of tort claims pursuant to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. Plaintiff’s claims against the hospital under the EMTALA were therefore dismissed for failure to comply with the MTCA’s strictly-construed pre-suit notice requirement. Glaskox v. George Cnty. Hosp., — F. Supp. 3d —, 2016 U.S. Dist. LEXIS 100223 (S.D. Miss. Aug. 1, 2016).

Court upheld a ruling against a medical center in a medical malpractice action under the Mississippi Tort Claims Act because substantial evidence supported the judgment; although the expert testimony was conflicting, there was ample evidence for a finding that the patient had pneumonia while she was in the hospital and that the hospital staff failed to diagnose her. Univ. of Miss. Med. Ctr. v. Johnson, 977 So. 2d 1145, 2007 Miss. App. LEXIS 345 (Miss. Ct. App. 2007).

Allowing a plaintiff to file suit before 90 days have passed since noticing the claim is tantamount to reading out the notice provisions of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 through11-46-23, and gross disregard for the notice provisions is not considered substantial compliance. Wright v. Quesnel, 876 So. 2d 362, 2004 Miss. LEXIS 801 (Miss. 2004).

The statute applied to a case where the event giving rise to the action occurred on June 1, 1994, clearly after the Act went into effect. Henderson v. Un-Named Emergency Room, 758 So. 2d 422, 2000 Miss. LEXIS 79 (Miss. 2000), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

A notice of claim delivered to the administrator of a subsidiary hospital may be held to constitute valid notice upon the subsidiary’s parent hospital chain; however, the record in the present case was too sparse to make a final determination in such regard and, therefore, the trial court’s ruling dismissing the case would be reversed and the matter would be remanded for additional findings. Humphrey v. Ocean Springs Hosp., 749 So. 2d 1044, 1999 Miss. LEXIS 360 (Miss. 1999).

The effective date of this section was April 1, 1993. Pickens v. Donaldson, 748 So. 2d 684, 1999 Miss. LEXIS 292 (Miss. 1999).

A school district was not entitled to dismissal on the basis of noncompliance with the statute where there was evidence that there were some negotiations between the school district’s insurance carrier and the plaintiff and that there was a letter sent from the insurance carrier to the plaintiff, confirming a previous conversation between the plaintiff and the carrier, initiated by the carrier, which indicated evidence that the carrier was notified of the claim by someone from the school district. Smith County Sch. Dist. v. McNeil, 743 So. 2d 376, 1999 Miss. LEXIS 267 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Plaintiff’s claim was barred by the applicable one-year statute of limitation where the complaint was filed nearly two years and five months after the accident at issue. State v. Dampeer, 744 So. 2d 754, 1999 Miss. LEXIS 218 (Miss. 1999).

In order to carry out the legislative purpose of providing relief to injured citizens, the court held that substantial compliance with the notice provisions of this section is sufficient. Reaves by & Through Rouse v. Randall, 1999 Miss. LEXIS 151 (Miss. Mar. 26, 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

This section does not require notice be filed with a governmental entity’s insurance company. Brewer v. Burdette, 1999 Miss. LEXIS 150 (Miss. Apr. 15, 1999), op. withdrawn, sub. op., 768 So. 2d 920, 2000 Miss. LEXIS 223 (Miss. 2000).

A substantial compliance standard applies with respect to the notice of claim requirements of this section. Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Police officer’s action in turning onto road despite fact that view of oncoming traffic was blocked by row of hedges, while negligent, did not turn collision with motorist into crime of assault, so as to relieve motorist of having to comply with notice requirements in Tort Claims Act in subsequent personal injury claim against city and officer. City of Jackson v. Lumpkin, 697 So. 2d 1179, 1997 Miss. LEXIS 306 (Miss. 1997), overruled, Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Uninsured motorist carrier’s third party subrogation claim against city accrued, and one-year statute of limitations began to run, on date of accident. Coleman v. American Mfrs. Mut. Ins. Co., 930 F. Supp. 255, 1996 U.S. Dist. LEXIS 8961 (N.D. Miss. 1996).

In a personal injury action against a city and city officials, the 6-year statute of limitations set forth in §15-1-49, rather than the 2-year statute of limitations set forth in §11-46-11(3) of the Tort Claims Act, applied since the Tort Claims Act had not yet taken effect. Starnes v. Vardaman, 580 So. 2d 733, 1991 Miss. LEXIS 312 (Miss. 1991).

2. Constitutionality.

Supreme Court of Mississippi holds that the March 2002 amendment to Miss. Code Ann. §11-46-11(4) is unconstitutional to the extent that it makes the savings clause applicable to all claims since April 1, 1993. However, the savings clause as first enacted in April of 2000 is valid and enforceable, and those claims in existence on May 15, 2000, are subject to the savings clause. Univ. of Miss. Med. Ctr. v. Robinson, 876 So. 2d 337, 2004 Miss. LEXIS 778 (Miss. 2004).

The one-year statute of limitations in the Mississippi Tort Claims Act is rationally related to a proper legislative purpose, i.e., protecting the state’s interest in conserving government funds and protecting the public health and welfare at the earliest possible moment, and, therefore, is constitutional. Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 1999 Miss. LEXIS 31 (Miss. 1999), overruled, Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007).

The notice provision of this section does not violate the equal protection clause of the federal constitution, notwithstanding that it requires a person to give 90 days notice to the head of a governmental entity before suing that entity, whereas this type of notice is not required when suing an individual. Vortice v. Fordice, 711 So. 2d 894, 1998 Miss. LEXIS 248 (Miss. 1998).

3. Legislative intent.

Court erred in dismissing a student’s personal injury lawsuit against a university and two of its police officers on the ground that the action was barred by the statute of limitations; applying Miss. Code Ann. §11-46-11 as written, the student timely filed lawsuit. It was the intention of the Legislature to toll the statutory period, meaning to suspend temporarily, and to grant claimants 90 days in addition to the one year in which to file their lawsuits. Page v. Univ. of S. Miss., 878 So. 2d 1003, 2004 Miss. LEXIS 972 (Miss. 2004).

The legislature intended for the statute to take effect from and after April 1, 1993, its date of passage. Chamberlin v. City of Hernando, 716 So. 2d 596, 1998 Miss. LEXIS 295 (Miss. 1998).

4. Applicability.

Circuit court properly denied the Mississippi State Port Authority’s motion to dismiss based on a contractor’s failure to comply with the Mississippi Tort Claims Act (MTCA) prior to filing a wrongful termination claim because the MTCA was not implicated; a contract existed between the parties, and the contractor brought an action for breach of that specific contract and had not alleged any breach of some duty independent of the contract. Miss. State Port Auth. at Gulfport v. S. Indus. Contrs. LLC, 271 So.3d 742, 2018 Miss. App. LEXIS 653 (Miss. Ct. App. 2018).

Contractor’s claim against a county engineer in his individual capacity for acts outside the scope of his employment were not subject to the presuit notice requirements of the Tort Claims Act because the claim was for tortious interference with a contract, which required proof of malice as an essential element. Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

Whiting v. University of Southern Mississippi, 62 So.3d 907 (Miss. 2011), did not overrule Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss. 2009), or McGehee v. DePoyster, 708 So. 2d 77 (Miss. 1998); however, due to the conflicting decisions that have arisen in district courts and the court of appeals, the supreme court overrules Whiting to the extent it held a claim for tortious interference with a contract is subject to presuit notice requirements of the Tort Claims Act. Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

In a case in which property owners alleged that a county supervisor, a contractor, and a subcontractor engaged in a scheme to profit from a debris-removal contract between a county and the contractor by not paying the property owners for providing a dumpsite, the property owners were not required to give the county supervisor notice of their claims because the property owners alleged that the county supervisor’s conduct amounted to fraud and malice and such conduct was outside the scope of the county supervisor’s employment. Bradley v. Kelley Bros. Contrs., Inc., 117 So.3d 331, 2013 Miss. App. LEXIS 340 (Miss. Ct. App. 2013).

Judgment creditors’ suit alleging a court clerk’s negligence in approving the judgment debtors’ supersedeas bonds prevented the creditors from recovering from the bonds was governed by the Mississippi Tort Claims Act; therefore, the Act’s one-year statute of limitations, not the general three-year limitations period, applied. Newton County v. State ex rel. Dukes, 133 So.3d 819, 2013 Miss. App. LEXIS 332 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 8 (Miss. 2014), aff'd in part and rev'd in part, 133 So.3d 805, 2014 Miss. LEXIS 143 (Miss. 2014).

Trial court, on remand, had to determine whether at the time of the alleged negligent conduct, the doctor was an employee of a state entity covered by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1; if so, the trial court had to further determine whether the statute of limitations had run as to the doctor as prescribed by Miss. Code Ann. §11-46-11. McClain v. Clark, 992 So. 2d 636, 2008 Miss. LEXIS 515 (Miss. 2008).

Suit against the state transportation commission, alleging a taking without just compensation in violation of Miss. Const. Art. 3, § 17, need not have been brought under the Mississippi Tort Claims Act, and thus was not time-barred under Miss. Code Ann. §11-46-11(3), because the constitutional provision was self-executing. McLemore v. Miss. Transp. Comm'n, 992 So. 2d 1107, 2008 Miss. LEXIS 305 (Miss. 2008).

Tax sale purchasers’ entire suit against the chancery clerk for failing to reimburse them for the 1994 taxes they paid when the prior owner redeemed the property for 1993 unpaid taxes was not governed by Miss. Code Ann. §11-46-11 because the purchasers had raised claims in law for damages and in equity for recovery of land, which were not tort claims. Alexander v. Taylor, 928 So. 2d 992, 2006 Miss. App. LEXIS 357 (Miss. Ct. App. 2006).

Decedent’s estate’s negligence action against the circuit court clerks for failing to enroll a foreign judgment was barred by the one-year statute of limitations in the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-11, because the complaint alleged that the court clerks were negligent in performing their official duties and the addition of the sureties as parties did not change the action into a contract action. Also, the action accrued when the estate learned that judgment had not been enrolled and not when the judgment debtor later filed bankruptcy, and the bankruptcy court held that the judgment was unenforceable in Mississippi. Estate of Spiegel v. Western Sur. Co., 908 So. 2d 859, 2005 Miss. App. LEXIS 525 (Miss. Ct. App. 2005).

Miss. Code Ann. §11-46-11 of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., applied to the university professor’s attempt to recover tort damages; the alleged wrongful conduct by the university and individuals was the tortious failure to give her a new contract, and since the professor’s claim of tortious interference was a tort claim and not a contract claim, she could only pursue that claim against the State using the Tort Claims Act. Black v. Ansah, 876 So. 2d 395, 2003 Miss. App. LEXIS 948 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 822 (Miss. 2004).

Former university professor’s tortious interference with contract claim against the university that formerly employed her and its officials was covered by the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq.; accordingly, the professor had to comply with the Act’s requirements as it was the exclusive remedy for the professor under Miss. Code Ann. §11-46-7(1); furthermore, the professor’s claim was time-barred under Miss. Code Ann §11-46-11(3) as it was not timely filed. Black v. Ansah, 2003 Miss. App. LEXIS 502 (Miss. Ct. App. June 3, 2003), op. withdrawn, sub. op., 876 So. 2d 395, 2003 Miss. App. LEXIS 948 (Miss. Ct. App. 2003).

Statute did not apply to medical malpractice action because the tortious act occurred three years before the statute came into effect, thus the general medical malpractice statute, Miss. Code Ann. §15-1-36 applied and allowed a patient two years to file suit. Bailey v. Al-Mefty, 807 So. 2d 1203, 2001 Miss. LEXIS 229 (Miss. 2001).

When the simple requirements of the act have been substantially complied with, jurisdiction will attach for the purposes of the act. Reaves by & Through Rouse v. Randall, 729 So. 2d 1237, 1998 Miss. LEXIS 624 (Miss. 1998), modified, 1998 Miss. LEXIS 643 (Miss. Dec. 31, 1998), op. withdrawn, sub. op., 1999 Miss. LEXIS 151 (Miss. Mar. 26, 1999).

5. Relation to other laws.

Emergency Medical Treatment and Active Labor Act (EMTALA), 42 USCS § 1395dd, incorporates and does not preempt Miss. Code Ann. §11-46-11(1), the State-law requirement at issue here, that defendant municipalities be given pre-suit notice of tort claims pursuant to the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq. Plaintiff ’s claims against the hospital under the EMTALA were therefore dismissed for failure to comply with the MTCA’s strictly-construed pre-suit notice requirement. Glaskox v. George Cnty. Hosp., — F. Supp. 3d —, 2016 U.S. Dist. LEXIS 100223 (S.D. Miss. Aug. 1, 2016).

6. “Chief executive officer.”

Trial court erred in dismissing a son’s wrongful death action against a state hospital because its director was the hospital’s CEO under the Mississippi Tort Claims Act (MTCA), and the son provided pre-suit notice to the proper party; the definition of “State” in the MTCA included hospitals, and the Department of Mental Health was not a substitute for the CEO of the hospital, which was the “state entity.” Ivy v. E. Miss. State Hosp., 191 So.3d 120, 2016 Miss. LEXIS 188 (Miss. 2016).

Department of Human Services was a state “department,” as such, proper service would be had on the chief executive officer of DHS; nothing in the record showed there was even an attempt by the father to serve DHS’s chief executive officer, or anyone at DHS. Little v. Miss. Dep't of Human Servs., 835 So. 2d 9, 2002 Miss. LEXIS 333 (Miss. 2002), cert. denied, 540 U.S. 878, 124 S. Ct. 296, 157 L. Ed. 2d 142, 2003 U.S. LEXIS 6253 (U.S. 2003), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The term “chief executive officer” may be read to include any of the following: president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability. Reaves by & Through Rouse v. Randall, 729 So. 2d 1237, 1998 Miss. LEXIS 624 (Miss. 1998), modified, 1998 Miss. LEXIS 643 (Miss. Dec. 31, 1998), op. withdrawn, sub. op., 1999 Miss. LEXIS 151 (Miss. Mar. 26, 1999).

7. Form of notice.

Although the complainant challenged the trial court’s finding that the complainant’s handwritten notice of claim was insufficient to satisfy the statutory pre-suit notice requirement, the appellate court was unable to consider the complainant’s argument because the complainant failed to see that the record included a copy of the notice for the appellate court to review. Accordingly, the circuit court’s ruling that the complainant failed to substantially comply with the pre-suit notice requirement was considered correct. O'Hara v. City of Hattiesburg, 222 So.3d 314, 2017 Miss. App. LEXIS 165 (Miss. Ct. App. 2017).

Grant of summary judgment in favor of the employee’s employer was proper where the employee failed to substantially comply with the notice provisions of the Mississippi Tort Claim Act’s, Miss. Code Ann. §11-46-1 et seq., Miss. Code Ann. §11-46-11. Harris v. Miss. Valley State Univ., 873 So. 2d 970, 2004 Miss. LEXIS 492 (Miss. 2004).

Negligence complaint against a sheriff’s deputy was properly dismissed in a case where no notice of action was given to the deputy until a full two years after the alleged negligent conduct occurred. Conrod v. Holder, 825 So. 2d 16, 2002 Miss. LEXIS 249 (Miss. 2002).

A failure to comply with the requirement that a notice of claim be mailed by registered or certified mail will not serve as a basis to dismiss an action; in cases in which notice is sent by first class mail, a governmental entity must demonstrate actual prejudice resulting from the failure to comply with the registered or certified mail requirement in order to be entitled to a dismissal on this basis. Thornburg v. Magnolia Reg'l Health Ctr., 741 So. 2d 220, 1999 Miss. LEXIS 181 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The statutory language implies that the required notice should be a single document which must in fact be sent by the claimant. Soileau v. Mississippi Coast Coliseum Comm'n, 730 So. 2d 101, 1998 Miss. App. LEXIS 1028 (Miss. Ct. App. 1998).

8. Written notice.

Dismissal of a contractor’s claim against a county engineer for tortious interference with a road construction contract was appropriate because the claim implicated the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., and there was a lack of pre-suit notice. Springer v. Ausbern Constr. Co., 231 So.3d 1065, 2016 Miss. App. LEXIS 499 (Miss. Ct. App. 2016), aff'd, 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

Regardless of whether the individual complied with the notice requirement under Miss. Code Ann. §11-46-11, the conversion claim failed because the individual had not shown any ownership interest in anything she claims was wrongfully converted. Zumwalt v. Jones County Bd. of Supervisors, 19 So.3d 672, 2009 Miss. LEXIS 421 (Miss. 2009).

In a case in which a professor asserted a claim for intentional infliction of emotional distress against a state university, the university was entitled to summary judgment on that claim since the professor had not complied with the notice requirement in the Mississippi Tort Claims Act. Gentry v. Jackson State Univ., 610 F. Supp. 2d 564, 2009 U.S. Dist. LEXIS 35271 (S.D. Miss. 2009).

In an employment discrimination case in which a former teacher had not complied with the notice requirement in Miss. Code Ann. §11-46-11, pursuant to the Mississippi Supreme Court, the failure to provide the 90 days’ notice was grounds for summary judgment. Burnworth v. Vicksburg Warren Sch. Dist., 2008 U.S. Dist. LEXIS 57434 (S.D. Miss. July 24, 2008).

Building owner’s claims against a city for money had and received and unjust enrichment constituted implied-in-law contract causes of action and were covered by the Mississippi Tort Claims Act; the owner’s failure to submit a notice of claim prior to commencing the suit meant its claims were barred under Miss. Code Ann. §11-46-11(1). 1704 21st Ave., Ltd v. City of Gulfport, 988 So. 2d 412, 2008 Miss. App. LEXIS 457 (Miss. Ct. App. 2008).

Finding against the employee in his action after he was terminated was proper because although he filed his suit against the sheriff’s department and the sheriff within the statutorily prescribed period in Miss. Code Ann. §11-46-11(3), he still failed to comply with the Mississippi Tort Claims Act since he filed his complaint 37 days before he filed his notice of claim with the sheriff’s department. Clanton v. DeSoto County Sheriff's Dep't, 963 So. 2d 560, 2007 Miss. App. LEXIS 30 (Miss. Ct. App. 2007).

Although Miss. Code Ann. §11-46-11 requires a plaintiff to file a notice of claim as a condition precedent to seeking damages from a municipal entity, it does not require the entity to respond to the notice of claim in order to preserve the defense of immunity. Mitchell v. City of Jackson, 481 F. Supp. 2d 586, 2006 U.S. Dist. LEXIS 95887 (S.D. Miss. 2006), aff'd, 223 Fed. Appx. 411, 2007 U.S. App. LEXIS 6889 (5th Cir. Miss. 2007).

There is no provision in the statute for actual or constructive notice, and a requirement of written notice is expressly stated. Holmes v. Defer, 722 So. 2d 624, 1998 Miss. LEXIS 530 (Miss. 1998), overruled, Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999). But see Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

9. Sufficiency of notice.

Accident victim’s pre-suit notice of claim to the Mississippi Department of Transportation was not sufficient because, although the notice disclosed that on or about a date one year earlier the victim wrecked a motorcycle on a particular highway, that the victim suffered personal injuries and property damages, and that the victim was seeking damages in excess of a certain amount, the notice provided no information to satisfy the extent of the injury and as to the victim’s residence at the time of the injury and at the time of the claim. Lane v. Miss. DOT, 220 So.3d 254, 2017 Miss. App. LEXIS 290 (Miss. Ct. App. 2017).

Circuit court erred in granting a city’s motion to dismiss a driver’s personal injury action because a letter sent to the mayor by the driver’s attorney provided information about each of the statutorily required categories, including, inter alia, the notice was in writing, delivered via certified mail, contained a short and plain statement of the facts upon which his claim was based, the time and place that his injury occurred, the name of the person known to be involved, the amount of damages the driver sought to recover. Marbly v. Manuel, 210 So.3d 1033, 2015 Miss. App. LEXIS 411 (Miss. Ct. App. 2015).

Where a teacher was terminated for accessing confidential student information, the teacher’s malicious interference with employment claim survived because, regarding presuit notice under the Mississippi Torts Claims Act, the superintendent did not address the Zumwalt decision in rebuttal or attempt to distinguish it, and the determination of whether the superintendent acted in bad faith and “without right or justifiable cause” presented a fact issue. Dearman v. Stone County Sch. Dist., — F. Supp. 3d —, 2014 U.S. Dist. LEXIS 37489 (S.D. Miss. Mar. 21, 2014).

Notice-of-claim letter a daughter gave a state-sponsored hospital complied fully with the requirements of Miss. Code Ann. §11-46-11(2) because the written notice-of-claim letter sent contained a statement of the facts upon which the claim was based, including the circumstances that brought about a father’s injuries and the time, place, and extent of those injuries, including the father’s alleged wrongful death; the notice also included the names of all persons known to be involved, it specified the amount of money damages the daughter sought, and the letter gave the residence address of one of the persons making the claim and the person who sent the notice. Saul ex rel. All Wrongful Death Heirs of Cook v. South Central Reg'l Med. Ctr., Inc., 25 So.3d 1037, 2010 Miss. LEXIS 13 (Miss. 2010).

In a case in which a circuit court dismissed a mother’s medical negligence claim against a hospital because she had not complied with the 90-day notice requirement Miss. Code Ann. §11-46-11(1) and the mother raised constitutional challenges to the Mississippi Tort Claims Act for the first time on appeal, it was clear that she resorted to those novel claims on appeal because there was no error on the part of the circuit court. While the mother gave the hospital notice, she filed suit after only 85 days, and the 90-day requirement in §11-46-11(1) was a mandatory rule which the courts strictly enforce. Jones v. Laurel Family Clinic, P.A., 37 So.3d 665, 2010 Miss. App. LEXIS 14 (Miss. Ct. App. 2010).

Order granting summary judgment in favor of a city with regard to a property owner’s action under the Mississippi Tort Claims Act was affirmed because the owner failed to meet the notice requirements of Miss. Code Ann. §11-46-11(2). The notice only contained the circumstances which brought about the owner’s injury and the time and place of the injury, and failed to provide the extent of injury suffered, the names of all the persons known to be involved, the money damages sought, or the owner’s residential address either at the time of the injury or at the time of the filing of the notice. Webster v. City of D'Iberville City Council, 6 So.3d 448, 2009 Miss. App. LEXIS 185 (Miss. Ct. App. 2009).

Representative’s first notice letter regarding a wrongful death claim complied with the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 through11-46-23; the notice was not statutorily insufficient simply because it did not specifically mention all of the claims ultimately raised in the complaint. The timing of the representative’s second letter was irrelevant. Briere v. S. Cent. Reg'l Med. Ctr., 3 So.3d 126, 2009 Miss. LEXIS 89 (Miss. 2009).

Driver and passenger could not maintain their action against a county and a county employee because they failed to abide by the notice requirements of Miss. Code Ann. §11-46-11(2); their letters to the county’s insurance adjuster contained only scant information and did not provide information in each of the seven categories required in §11-46-11(2). Parker v. Harrison County Bd. of Supervisors, 987 So. 2d 435, 2008 Miss. LEXIS 360 (Miss. 2008).

With regard to the ripeness of a Takings Clause claim, adequate state procedures include both administrative and state court remedies, and Mississippi has provided an adequate procedure for compensation in the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11; however, merely sending a notice of claim letter is not sufficient for a plaintiff to avail himself of the adequate state judicial procedure provided in the Act. The entity receiving the letter is under no obligation to respond and may choose to remain silent, and once the plaintiff files a notice of claim and the defendant has been given an opportunity to respond, the plaintiff may then sue under the Act. Waltman v. Payne, 535 F.3d 342, 2008 U.S. App. LEXIS 14757 (5th Cir. Miss. 2008).

Licensee’s U.S. Const. Amend. V takings claim that a sheriff, thinking they were marijuana plants, destroyed kenaf plants that were growing on the land upon which the licensee held a hunting license was unripe because the licensee had not sought compensation under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11, by filing state court suit; the licensee’s sending of a letter seeking compensation under §11-46-11 was insufficient to exhaust the adequate remedies provided by Mississippi, and instead, the licensee should have filed a state court suit after receiving no response to his letter. Waltman v. Payne, 535 F.3d 342, 2008 U.S. App. LEXIS 14757 (5th Cir. Miss. 2008).

In a patient’s medical malpractice suit against a hospital and a limited liability company, diversity jurisdiction existed because the hospital was improperly joined since the patient provided deficient notice under the Mississippi Tort Claims Act because the notice contained no information regarding the amount of damages sought or the patient’s residence at the time of injury or filing. Harden v. Field Mem. Cmty. Hosp., 516 F. Supp. 2d 600, 2007 U.S. Dist. LEXIS 28436 (S.D. Miss. 2007), aff'd, 265 Fed. Appx. 405, 2008 U.S. App. LEXIS 3524 (5th Cir. Miss. 2008).

In an employment dispute with the university, its former president, and its former vice-president of academic affairs, the former professor’s state-law tort claims were barred for lack of jurisdiction under the Mississippi Tort Claims Act because the professor’s grievance and letter of representation did not substantially comply with the notice requirements of Miss. Code Ann. §11-46-11(2) since: (1) the grievance letter to the board of trustees did not inform the university or the board of trustees of the professor’s intent to file a claim in court; (2) the notice of claim was not filed after administrative remedies had been exhausted; (3) the notice of his claim was not served on the president of the university as required; (4) neither the letter nor the grievance stated an amount of damages sought or the extent of the alleged injury; and (5) the letter was not served upon the former president of the university. Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 2007 Miss. App. LEXIS 492 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 1144, 2008 Miss. LEXIS 150 (Miss. 2008).

Trial court erred in finding that the patient substantially complied with the notice provisions of Miss. Code Ann. §11-46-11(2); due to the lack of any written notice, the patient failed to comply with the mandatory requirements of §11-46-11(2) as none of the seven required categories of information were provided. South Cent. Reg'l Med. Ctr. v. Guffy, 930 So. 2d 1252, 2006 Miss. LEXIS 289 (Miss. 2006).

Injured person’s letter of notice was not sent to the county, but rather to an attorney. In addition, the letter: (1) was not sent by registered mail or certified mail, nor was it delivered in person; (2) did not contain a short and plain statement of the facts with regard to circumstance of injury; (3) did not give the extent of injuries; (4) did not give the name of all persons involved; (5) did not list the damages sought; and (6) did not give the residence of the claimant. Because there was a bare attempt at “minimal compliance,” and certainly not “substantial compliance,” summary judgment for the county was proper. Fairley v. George County, 871 So. 2d 713, 2004 Miss. LEXIS 415 (Miss. 2004).

Telephone calls to several supervisors and a letter directed to a county employee regarding a fall down a staircase in a courthouse was sufficient to comply with the notice requirements of Miss. Code Ann. §11-46-11(2). Williams v. Clay County, 861 So. 2d 953, 2003 Miss. LEXIS 659 (Miss. 2003), overruled, Page v. Univ. of S. Miss., 878 So. 2d 1003, 2004 Miss. LEXIS 972 (Miss. 2004).

There was substantial compliance with the notice requirements where the city received a notice of claim letter and suffered no actual prejudice as a result of plaintiff’s failure to include her own address, because plaintiff was represented by an attorney at the time and his address was included. Powell v. City of Pascagoula, 752 So. 2d 999, 1999 Miss. LEXIS 385 (Miss. 1999), overruled in part, Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 2010 Miss. LEXIS 645 (Miss. 2010).

The notice substantially complied with the requirements of the notice provisions of this section where it provided sufficient details regarding the incident at issue and was served on the city clerk and the city attorney. City of Pascagoula v. Tomlinson, 741 So. 2d 224, 1999 Miss. LEXIS 180 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The plaintiff’s notice of claim substantially complied with the statutory requirements where (1) the notice letter, sent to the defendant’s Manager for Public Housing listed the persons involved in the accident, when the accident occurred, and the circumstances which brought about the injury, (2) the plaintiff’s attorney contacted the defendant’s offices to inquire as to who was the chief executive officer, (3) the plaintiff’s attorney explained that the claim originated from the public housing division of the defendant, and (4) the Manager of Public Housing was employed by the defendant in an executive capacity and through the letter he received, the defendant’s board of commissioners was put on notice of the claim. Tennessee Valley Regional Hous. Auth. v. Bailey, 740 So. 2d 869, 1999 Miss. LEXIS 169 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The plaintiff’s actions of communicating with the defendant board of supervisors equated to substantial compliance with the notice requirements of this section where (1) there was prolonged, continuous, and extensive communications between the parties, (2) as a result of these discussions, information regarding the plaintiff’s claim was directed to and/or received by numerous people associated with the county, and (3) all of the parties involved in the settlement discussions were directly associated with the county and/or the board of supervisors. Ferrer v. Jackson County Bd. of Supervisors, 741 So. 2d 216, 1999 Miss. LEXIS 166 (Miss. 1999).

The plaintiff substantially complied with the notice provisions of this section where her notice letter, sent to the superintendent of the defendant school district, listed the persons involved in the accident, when the accident occurred, where the accident occurred, and what vehicles were involved. Reaves by & Through Rouse v. Randall, 1999 Miss. LEXIS 151 (Miss. Mar. 26, 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Notice of claim to the chairman of the Mississippi Gaming Commission is sufficient to satisfy the pre-suit notice of claim requirements under the substantial compliance doctrine of the Mississippi Tort Claims Act. Alexander v. Mississippi Gaming Comm'n, 735 So. 2d 360, 1999 Miss. LEXIS 136 (Miss. 1999).

The plaintiff substantially complied with the requirements for a notice of claim where she provided the defendant town with all of the required information except a liquidated amount of damages, although she stated the extent of her injuries in adequate detail; she was given the form by a city employee and assisted in completing the form; and once her damages were ascertainable, the insurance adjuster was made aware of same and actively pursued settlement with the plaintiff and her attorney. Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The plaintiff substantially complied with the notice provisions of the act where her notice letter, sent to the school superintendent, listed the persons involved in the accident at issue, when the accident occurred, where the accident occurred, and what vehicles were involved; the superintendent was employed in an executive capacity by the school board and through this letter the board was put on notice of the claim. Reaves by & Through Rouse v. Randall, 729 So. 2d 1237, 1998 Miss. LEXIS 624 (Miss. 1998), modified, 1998 Miss. LEXIS 643 (Miss. Dec. 31, 1998), op. withdrawn, sub. op., 1999 Miss. LEXIS 151 (Miss. Mar. 26, 1999).

An initial incident report, coupled with correspondence between the plaintiff’s attorney, the defendant coliseum’s attorney, and the coliseum’s insurance adjuster did not constitute compliance with the notice provisions of the statute. Soileau v. Mississippi Coast Coliseum Comm'n, 730 So. 2d 101, 1998 Miss. App. LEXIS 1028 (Miss. Ct. App. 1998).

The plaintiff failed to comply with the notice requirements of the statute where he maintained communication only with the insurance carrier of the defendant political subdivision and did not file a notice of claim with the superintendent of the school district as required under the strict compliance standard of the statute. Watts by & Through Watts v. Lafayette County Sch. Dist., 737 So. 2d 1019, 1998 Miss. App. LEXIS 1075 (Miss. Ct. App. 1998).

10. Time to file action.

Trial court erred in concluding that the pre+suit notice filed by a student’s parents triggered the statute of limitations because the parents never filed a complaint on the student’s behalf. Doe v. Holmes Cty. Sch. Dist., 246 So.3d 920, 2018 Miss. App. LEXIS 225 (Miss. Ct. App. 2018).

Because a student was incapacitated during the time she filed a claim against a school district she should have been allowed to substitute her mother; the student’s parents did not file suit on her behalf, and thus, the mother could be substituted as an interested party and file a complaint on the student’s behalf until she was twenty-one, or the student could individually file after turning twenty-one within the one-year statute of limitation prescribed under the Mississippi Tort Claims Act. Doe v. Holmes Cty. Sch. Dist., 246 So.3d 920, 2018 Miss. App. LEXIS 225 (Miss. Ct. App. 2018).

Estate’s claims for loss of society and companionship were not untimely pursuant to the one-year statute of limitations. While the claims the decedent could have brought had she not died were rendered untimely by application of the one-year statute of limitations, the estate’s claims for loss of society and companionship did not accrue until her death. Fedrick v. Quorum Health Res., Inc., 45 So.3d 667, 2009 Miss. App. LEXIS 926 (Miss. Ct. App. 2009).

Miss. Code Ann. §11-46-11(3) was clear that the patient should have filed her claim against the doctor for medical malpractice within one year of the alleged conduct; the patient did not exercise due diligence to discover the doctor’s employment status, and there was no evidence that the doctor, hospital, or clinics concealed the doctor’s status. Stark v. Greenwood Leflore Hosp., 39 So.3d 901, 2009 Miss. App. LEXIS 347 (Miss. Ct. App. 2009), cert. dismissed, 24 So.3d 1038, 2010 Miss. LEXIS 22 (Miss. 2010).

Plaintiff may file a complaint without waiting the full 90 days under Miss. Code Ann. §11-46-11(1) if the plaintiff receives a denial of notice of claim pursuant to §11-46-11(3). Lee v. Mem'l Hosp., 999 So. 2d 1263, 2008 Miss. LEXIS 599 (Miss. 2008).

Where summary judgment was granted in favor of a medical center based upon a wrongful death beneficiary’s filing of his complaint only 41 days after he served the medical center with his notice of claim, the reviewing court rejected the argument that dismissal with prejudice was improper absent egregious circumstances warranting such a harsh sanction. While such a rule applied to the dismissal of medical malpractice actions for failure to comply with the 60-day notice provision of Miss. Code Ann. §15-1-36(15), this case was governed by the Mississippi Tort Claims Act (MTCA), and the court was bound to adhere to the supreme court’s precedent interpreting it. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 652, 2008 Miss. App. LEXIS 774 (Miss. Ct. App. 2008), rev'd, 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Estate’s doctor’s affidavit did not allege any negligent conduct by the nursing home or its manager within one year of the notice of the estate’s wrongful death claim; there was no genuine issue of material fact regarding whether the doctor raised a timely allegation of negligence. Estate of Fedrick v. Quorum Health Res., Inc., 2008 Miss. App. LEXIS 672 (Miss. Ct. App. Nov. 4, 2008), rev'd, 45 So.3d 641, 2010 Miss. LEXIS 363 (Miss. 2010).

Mississippi Supreme Court’s 2006 decision requiring strict compliance with the Mississippi Tort Claims Act’s 90-day notice requirement had to be applied retroactively to a case pending at the time of the 2006 decision because the supreme court did not specifically state that its 2006 holding applied prospectively only. Stuart v. Univ. of Miss. Med. Ctr., 2008 Miss. App. LEXIS 379 (Miss. Ct. App. June 24, 2008).

Patient’s medical malpractice case against a regional medical center was properly dismissed where the patient failed to strictly comply with the notice provisions of Miss. Code Ann. §11-46-11(1). The patient filed his notice of claim with the center and then filed suit less than a week later, although the patient should have waited 90 days before filing suit. Brown v. Southwest Miss. Reg'l Med. Ctr., 989 So. 2d 933, 2008 Miss. App. LEXIS 71 (Miss. Ct. App.), cert. denied, 993 So. 2d 832, 2008 Miss. LEXIS 434 (Miss. 2008).

Patient’s medical malpractice suit against a medical center was properly dismissed with prejudice because the patient failed to timely file suit within the one-year statute of limitations. Johnson v. Rao, 952 So. 2d 151, 2007 Miss. LEXIS 178 (Miss. 2007).

Patient’s medical malpractice and wrongful death action against the Mississippi Department of Health (MDH) was time-barred under Miss. Code Ann. §11-46-11(3) because the alleged improper prenatal care occurred no later than August 6, 1999, the last date the patient was treated at the clinic, the statute of limitations expired no later than August 6, 2000, and MDH did not receive notice of claim until October 24, 2000. Pounds v. Miss. Dep't of Health, 946 So. 2d 413, 2006 Miss. App. LEXIS 476 (Miss. Ct. App. 2006).

Record was clear that the patient’s complaint against the hospital was filed fifty-five days after the accident occurred, and the hospital was served four days later; therefore, even though no written notice was contained in the record, the patient clearly did not wait the statutory ninety days under Miss. Code Ann. §11-46-11(1) before commencing the action against the hospital. South Cent. Reg'l Med. Ctr. v. Guffy, 930 So. 2d 1252, 2006 Miss. LEXIS 289 (Miss. 2006).

Pursuant to Miss. Code Ann. §11-46-11(3), a resident’s negligence complaint against the county was timely; he filed his complaint on January 16, 2002, and assuming that he gave notice on August 7, 2000, the statute of limitations was tolled for 120 days or until December 5, 2000; after the tolling period ended, the one-year statute commenced running, and the deadline for filing was March 5, 2002. Farmer v. Bolivar County, 910 So. 2d 671, 2005 Miss. App. LEXIS 168 (Miss. Ct. App. 2005).

Dismissal of the individual’s action against the city, fire department, fire department employee, and municipal services company after she was injured when the employee backed a fire truck into the individual’s car was appropriate pursuant to Miss. Code Ann. §11-46-11 since her complaint was filed beyond the one-year statute of limitations and she did not establish that the company’s conduct was fraudulent, or that the company prevented her from filing her complaint on time. Patrick v. Shields, 912 So. 2d 1114, 2005 Miss. App. LEXIS 749 (Miss. Ct. App. 2005).

County board of supervisors and engineers were not entitled to dismissal of landowners’ claims for damages allegedly sustained as a result of the board’s and engineers’ negligence in designing, approving, and constructing a subdivision that flooded, on the ground that the claims were barred by the one-year statute of limitations in Miss. Code Ann. §11-46-11(3), because the statute of limitations began to run when the subdivision flooded or the landowners discovered that the flooding resulted from the design of the subdivision and the landowners’ notices of claim, which tolled the statute of limitations, was filed within a year of both. Scheinblum v. Lauderdale County Bd. of Supervisors, 350 F. Supp. 2d 743, 2004 U.S. Dist. LEXIS 26321 (S.D. Miss. 2004).

Trial court properly granted summary judgment in favor of county hospital where an individual did not file suit against the hospital until more than two years after tripping on its sidewalk; the hospital’s contract with a private management company to run the hospital did not exempt it from the Mississippi Tort Claims Act. Allstadt v. Baptist Mem. Hosp., 2004 Miss. App. LEXIS 847 (Miss. Ct. App. Aug. 24, 2004), op. withdrawn, sub. op., 893 So. 2d 1083, 2005 Miss. App. LEXIS 133 (Miss. Ct. App. 2005).

Trial court properly granted summary judgment for defendants in a medical malpractice case where, since the hospital was protected by the Mississippi Tort Claims Act (MTCA), the husband had to meet the requirements of Miss. Code Ann. §11-46-11; he did not substantially comply with the MTCA requirements; plaintiff filed his complaint after the one-year statute of limitations had expired. Davis v. Hoss, 869 So. 2d 397, 2004 Miss. LEXIS 319 (Miss. 2004).

District court did not err in dismissing a claim filed against a county under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, because the claim was filed after the one-year statute of limitations had expired; an injured party did not receive extra time to file the claim under Miss. Code Ann. §11-46-11(3) after the time period had run because both tolling periods had run prior to the expiration of the one-year period. Williams v. Clay County, 861 So. 2d 953, 2003 Miss. LEXIS 659 (Miss. 2003), overruled, Page v. Univ. of S. Miss., 878 So. 2d 1003, 2004 Miss. LEXIS 972 (Miss. 2004).

Professor did not timely file her claim under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. where the professor knew of her claim when or soon after she received the May 1999 notice that her contract would not be renewed; at no time in the proceedings did the professor allege that she had failed to realize the connection she presently claimed between her whistleblowing and the refusal to renew her contract. Black v. Ansah, 876 So. 2d 395, 2003 Miss. App. LEXIS 948 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 822 (Miss. 2004).

Victim’s one-year window under Miss. Code Ann. §11-46-11(3) of the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., to file a notice of claim against the State for damages related to the victim’s rape by a parolee did not begin to run until the day the victim was raped, and the victim’s notice of claim and complaint were timely filed, although the court ultimately found the State immune from liability under Miss. Code Ann. §11-46-9(1). Connell v. State, 841 So. 2d 1127, 2003 Miss. LEXIS 147 (Miss. 2003), op. withdrawn, 2003 Miss. LEXIS 625 (Miss. Nov. 6, 2003), sub. op., 859 So. 2d 350, 2003 Miss. LEXIS 603 (Miss. 2003).

Although the tort claims act allowed 90 days after the running of the one-year statute of limitations for filing of a claim, a widow’s claim against the county for the death of her husband was time barred because she filed it 94 days after the statute had run. Marshall v. Warren County Bd. of Supervisors, 831 So. 2d 1211, 2002 Miss. App. LEXIS 703 (Miss. Ct. App. 2002).

Discovery rule applied to the Mississippi Tort Claim Act’s statute of limitations; the circuit court erred in holding that the parents’ claim against the hospital was untimely filed because it calculated the time in which to file the complaint by using the old 95-day period for filing a notice of claim instead of the amendment’s 120-day period. Moore v. Mem'l Hosp., 825 So. 2d 658, 2002 Miss. LEXIS 279 (Miss. 2002).

Trial court did not err in granting summary judgment to a hospital that was a governmental entity under Miss. Code Ann. §11-46-11(1), where the parents on behalf of their minor child failed to file their suit for negligent care and treatment against the hospital within the one-year limitation period under the Mississippi Tort Claims Act at Miss. Code Ann. §11-46-11(3). Moore v. Mem'l Hosp., 2002 Miss. LEXIS 134 (Miss. Apr. 11, 2002).

Amendment to statute was retroactive as claims pending at the time of the statute’s amendment and not barred by its previous limitation gave them the benefit of the longer limitations period. Hollingsworth v. City of Laurel, 808 So. 2d 950, 2002 Miss. LEXIS 62 (Miss. 2002).

Mother’s suit against the chancery court clerk for failure to timely dispense funds from another suit was properly dismissed where the complaint was barred by the one-year statute of limitations of Miss. Code Ann. §11-46-11(3) on tort claims brought against public officials. The claim accrued when the court clerk received the funds in late 1997, to reimburse the mother for medical bills she paid arising out of her daughter’s automobile accident, but the mother’s suit was not filed until December 6, 1999. Young v. Benson, 828 So. 2d 821, 2002 Miss. App. LEXIS 28 (Miss. Ct. App.), cert. denied, 829 So. 2d 1245, 2002 Miss. App. LEXIS 606 (Miss. Ct. App. 2002).

The trial court erred when it dismissed a personal injury action against a city on the ground that the plaintiff did not wait 90 days after filing his notice of claim to commence the action; the appropriate remedy would have been for the court to issue an order staying the lawsuit until such time as the city had been given the benefit of the waiting period. Jackson v. City of Wiggins, 760 So. 2d 694, 2000 Miss. LEXIS 63 (Miss. 2000), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

A notice of claim that included a settlement offer that would expire in 20 days did not violate the 90 day waiting period for filing an action. Thornburg v. Magnolia Reg'l Health Ctr., 741 So. 2d 220, 1999 Miss. LEXIS 181 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Although a party must wait 90 days from the providing of notice to file a lawsuit, the dismissal of a lawsuit based on a failure to comply with the waiting period is a disproportionate remedy; instead, a governmental entity should request that the trial court issue an order staying the lawsuit until such time as the entity has been given the benefit of the applicable waiting period, and the governmental entity should be permitted to recover any expenses, including court costs and attorney’s fees, which it incurs in obtaining a stay of the proceedings. City of Pascagoula v. Tomlinson, 741 So. 2d 224, 1999 Miss. LEXIS 180 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

11. Discovery rule.

Claimant’s injury was the misdiagnosis of her condition, which she could not reasonably have known about until another doctor told her she did not have multiple sclerosis; her limitations period began to run when she first learned of her misdiagnosis, and her notice-of-claim letter was timely, as was her filing of suit. 2019 Miss. App. LEXIS 543.

It was error to grant a hospital and subsidiary summary judgment on the ground that a widow had not filed suit within the one-year statute of limitations because a genuine issue of material fact existed on whether the statute of limitations was tolled since she produced evidence of reasonable diligence under the discovery rule; the widow made numerous inquiries regarding the final death certificate, and there was a two-year gap between the death and the issuance of the final death certificate. Lyas v. Forrest Gen. Hosp., 177 So.3d 412, 2015 Miss. LEXIS 541 (Miss. 2015).

Judgment creditors’ suit alleging a court clerk’s negligence in approving the judgment debtors’ supersedeas bonds prevented the creditors from recovering from the bonds was timely under the Mississippi Tort Claims Act’s one-year statute of limitations, because it was filed within a year after judgment was rendered on the bonds. Newton County v. State ex rel. Dukes, 133 So.3d 819, 2013 Miss. App. LEXIS 332 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 8 (Miss. 2014), aff'd in part and rev'd in part, 133 So.3d 805, 2014 Miss. LEXIS 143 (Miss. 2014).

Circuit court erred in granting a hospital’s motion to dismiss a daughter’s wrongful-death action on the ground that the one-year statute of limitations, Miss. Code Ann. §11-46-11(3) barred her claims because the wrongful-death claims were timely brought, and the discovery rule applied to her survival-type claims; however, it could not be determined whether the daughter’s survival-type claims were timely brought because the record did not indicate whether, before the father died, he “discovered” the act or omission by the hospital that allegedly caused his injuries, and whether he did or not, and whether the daughter’s survival-type claims were timely brought, had to be decided by the fact-finder. Saul ex rel. All Wrongful Death Heirs of Cook v. South Central Reg'l Med. Ctr., Inc., 25 So.3d 1037, 2010 Miss. LEXIS 13 (Miss. 2010).

Order granting a medical center’s motion for summary judgment in a patient’s medical malpractice action on the ground that the patient filed her complaint outside the limitations period set forth in the Mississippi Tort Claims Act’s (MTCA), Miss. Code Ann. §11-46-11, was reversed, and the case was remanded for a determination of when the patient, by exercise of reasonable diligence, did or should have known of her alleged injury and the acts or omissions because in its order granting the motion for summary judgment, the trial court specifically relied upon a supreme court decision and correctly determined that it applied retroactively to the patient’s claim; however, since a second supreme court decision revived the discovery rule and mandated that the MTCA’s one-year statute of limitations began to run when the patient knew, or by exercise of reasonable diligence should know, of both the damage or injury, the operative question was whether statutory notice was provided within a year next following the earliest date the patient, by exercise of reasonable diligence, should have known of the injury and the acts or omission that caused them. Weary v. Blake, 17 So.3d 635, 2009 Miss. App. LEXIS 600 (Miss. Ct. App. 2009).

Trial court erred in ruling that a widow’s claims for wrongful death/medical malpractice were barred based on the statute of limitations because a widow could not have known both the damage or injury and the act or omission until at least the date the decedent vomited blood and died later that day. Naomi Ruth McDonald v. Mem'l Hosp., 8 So.3d 175, 2009 Miss. LEXIS 187 (Miss. 2009).

By reenacting Miss. Code Ann. §11-46-11(3) without addressing or countermanding the Mississippi Supreme Court’s decision in Barnes, the Legislature acquiesced and tacitly approved and incorporated into the statute a discovery rule as announced in Barnes. Pursuant to the doctrine of stare decisis, the discovery rule was recognized as to §11-46-11(3). Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Summary judgment was improperly granted to several health care providers in a medical negligence case because the limitations period in Miss. Code Ann. §11-46-11 did not bar the claim; a discovery rule was recognized for claims filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

One-year statute of limitations under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 through11-46-23, begins to run when a claimant knows, or by exercise of reasonable diligence should know, of both the damage or injury, and the act or omission which proximately caused it. The finder of fact must decide when those requirements are satisfied. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

By reenacting Miss. Code Ann. §11-46-11(3) without addressing or countermanding the Mississippi Supreme Court’s decision in Barnes v. Singing River Hosp., 733 So. 2d 199 (Miss. 1999), the Mississippi Legislature has acquiesced and tacitly approved and incorporated into §11-46-11(3) a discovery rule as announced in Barnes. Pursuant to the doctrine of stare decisis, the Mississippi Supreme Court shall continue to recognize a discovery rule with respect to § 11-46-11(3). Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Supreme Court of Kansas overrules Barnes v. Singing River Hosp., 733 So. 2d 199, 205 (Miss. 1999), and its progeny, insofar as they judicially amended the statutes of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 et seq., by supplying a discovery rule tolling the MTCA’s one-year statute of repose. Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007), op. withdrawn, sub. op., 2007 Miss. LEXIS 710 (Miss. Dec. 6, 2007).

Husband’s medical malpractice and wrongful death claim against the hospital was not barred under Miss. Code Ann. §11-46-11(3) where there was sufficient evidence to show that the husband was reasonably diligent in investigating the cause of his wife’s death; there were numerous requests made for medical records and the husband submitted a notice of claim and filed suit shortly after the expert witness determined that the records indicated wrongful conduct; the husband could not have known of the alleged wrongdoing until he had access to the necessary medical records. Forrest County General Hosp. v. Kelley, 914 So. 2d 242, 2005 Miss. App. LEXIS 440 (Miss. Ct. App. 2005).

When the patient discovered that the patient’s child had died in the womb, the patient should have known that there was some causal connection between the death and the doctor’s treatment. Moreover, even if the patient did not recognize the causal connection at the time of death, there was absolutely no indication that the patient made any attempts to determine the cause of the patient’s child’s death until after one year had elapsed; thus, there was no issue of fact with respect to whether the discovery rule tolled the statute of limitations, and accordingly, the state hospital and its doctor were entitled to summary judgment. Wright v. Quesnel, 876 So. 2d 362, 2004 Miss. LEXIS 801 (Miss. 2004).

Denial of the general hospital’s and physicians’ motion to transfer venue in a medical malpractice action was improper where the general hospital was entitled to venue in the county in which the principal offices were located; further, the decedent’s heirs were not reasonably diligent in investigating the cause of her injuries, the discovery rule did not apply in the case, and the claims against the medical center and treating physicians were, therefore, time-barred, Miss. Code Ann. §11-46-11 (Rev. 2002). Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 2004 Miss. LEXIS 289 (Miss. 2004).

Libel claims against a county filed more than one year after the last publication of allegedly defamatory statements by a coroner about the cause of death of a convalescent center patient were dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as time-barred because the discovery rule did not apply to libel actions under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11(3). River Oaks Convalescent Ctr., Inc. v. Coahoma County, 280 F. Supp. 2d 565, 2003 U.S. Dist. LEXIS 23855 (N.D. Miss. 2003).

Trial court erred in dismissing the money damages portion of the landowner’s complaint against the county as time barred; the second flood on the landowner’s property occurred just six months before the third flood and his learning of bridge alterations by the county, due to which his property was damaged; within six months after the third flood, the landowner learned of the alleged cause, and six months was a reasonable period in which to discover the alleged cause of the harm. Punzo v. Jackson County, 861 So. 2d 340, 2003 Miss. LEXIS 750 (Miss. 2003).

Action for wrongful death should not be given the benefit of the discovery rule; thus, a decedent’s heirs’ medical malpractice action against a hospital and three physicians was time-barred because it was brought over two years after the decedent’s death, which was beyond the one-year statute of limitations of the Mississippi Tort Claims Act. Wayne Gen. Hosp. v. Hayes, 2003 Miss. LEXIS 598 (Miss. Nov. 6, 2003).

Although the discovery rule applied to claims filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, involving latent injuries, it did not operate to toll the statute of limitations because an injured party was aware of an injury after a fall down a staircase, despite the fact that the full extent of the injuries was not apparent. Williams v. Clay County, 861 So. 2d 953, 2003 Miss. LEXIS 659 (Miss. 2003), overruled, Page v. Univ. of S. Miss., 878 So. 2d 1003, 2004 Miss. LEXIS 972 (Miss. 2004).

The discovery rule does not apply to toll the accrual of a libel claim and to prevent the running of the one year statute of limitations under the statute. Ellisville State Sch. v. Merrill, 732 So. 2d 198, 1999 Miss. LEXIS 70 (Miss. 1999).

The discovery rule did not apply to an action for burns sustained by a quadriplegic when hot packs were placed on the backs of his legs during physical therapy treatments, notwithstanding his contention that he was unaware of the cause of action until he received correspondence from a physician stating the cause of the injuries; the plaintiff knew of his injuries at the time they occurred, since his burns were treated that day and for months afterwards, and he threatened legal action the next day. Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 1999 Miss. LEXIS 57 (Miss. 1999).

The discovery rule applies to Tort Claims Act actions involving latent injuries. Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 1999 Miss. LEXIS 57 (Miss. 1999).

Despite the absence of specific discovery language in this section, the discovery rule applies to subsection (3) of this section in actions involving latent injuries. Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 1999 Miss. LEXIS 31 (Miss. 1999), overruled, Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007).

The discovery rule did not apply to an action in which the plaintiff alleged that the volunteer director/emergency medical technician for a city ambulance service negligently contributed to the death of her husband since the death of her husband was not a latent injury. Chamberlin v. City of Hernando, 716 So. 2d 596, 1998 Miss. LEXIS 295 (Miss. 1998).

12. Estoppel to assert statute of limitations.

Statute of limitations barred homeowners’ complaint against a city because the doctrine of equitable estoppel did not apply; the listing of the wrong person as the residence’s licensed contractor were the result of a mistaken belief, and there was no proof that the city or its permit manager knew or had reason to know that its actions or inactions would result in the homeowners’ claims or suits being barred by a statute of limitations. City of Tupelo v. McMillin, 192 So.3d 948, 2016 Miss. LEXIS 152 (Miss. 2016).

County was not estopped from asserting the statute of limitations defense in a case involving a claim filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, because the statements of a county employee regarding the payment of medical bills were not fraudulent since an injured party failed to submit any valid medical claims; therefore, a trial court did not err in dismissing the case for failing to state a cause of action. Williams v. Clay County, 861 So. 2d 953, 2003 Miss. LEXIS 659 (Miss. 2003), overruled, Page v. Univ. of S. Miss., 878 So. 2d 1003, 2004 Miss. LEXIS 972 (Miss. 2004).

The defendant was not estopped from asserting the statute of limitations since, although settlement negotiations were ongoing between the parties, there was never any representation by the defendant that the statute of limitations was tolled, and the plaintiff did not allege that the defendant led him to believe that he need not comply with the statute. Mississippi Dep't of Pub. Safety v. Stringer, 748 So. 2d 662, 1999 Miss. LEXIS 194 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

The defendant town and its insurer were estopped from asserting that the plaintiff failed to strictly comply with the notice of claim requirements where (1) the notice of claim form did not provide a blank for liquidated damages other than for an estimate for property damage; (2) the completed form disclosed the date and time of the accident, the nature/cause of the accident, persons/witnesses involved, and the exact location of the accident; (3) the insurer was given a medical release to obtain the plaintiff’s medical records and did obtain those records in a timely fashion; (4) the plaintiff and her attorney cooperated fully with the city and its insurer throughout the investigation and settlement discussions; (5) the plaintiff and her attorney were contacted directly by the insurer and dealt almost exclusively with the insurer; and (6) the town and its insurer only asserted the plaintiff’s failure to strictly comply after settlement negotiations broke down approximately one year and 90 days after the fall and after the plaintiff filed suit and discovery was completed. Carr v. Town of Shubuta, 733 So. 2d 261, 1999 Miss. LEXIS 72 (Miss. 1999), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

13. Tolling of limitation period.

Circuit court erred in dismissing a visitor’s personal injury action against a university, its athletic department, and the Mississippi Institutes of Higher Learning (jointly, the university) because, while the visitor’s notice of claim letters failed to comply with the Mississippi Tort Claims Act—failing to provide the university with the amount of damages sought, the visitor’s residential address at the time of injury, and the visitor’s residential address at the time the letter was mailed to the university—the court erred in dismissing the claim with prejudice inasmuch as the complaint was properly filed within one year of the incident, thereby tolling the statute of limitations. Keever v. Miss. Insts. of Higher Learning, — So.3d —, 2019 Miss. App. LEXIS 184 (Miss. Ct. App. Apr. 30, 2019).

Because a state university’s head football coach, who had a viable claim against the university for breach of the implied covenant of good faith and fair dealing, did not satisfy the pre-suit notice requirement of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., the coach’s claim had to be dismissed without prejudice. The coach could refile the claim as the statute of limitations was tolled by the initial filing until the complaint was dismissed for lack of proper pre-suit notice. Jones v. Miss. Insts. of Higher Learning, 264 So.3d 9, 2018 Miss. App. LEXIS 378 (Miss. Ct. App. 2018).

Tolling provision of the Mississippi Tort Claims Act (MTCA) statute of limitations does not toll the separate statute of limitations applicable to non-MTCA defamation claims. Therefore, a notice of claim did not toll a statute of limitations for a defamation claim against an alderman because the statute of limitations for a non MTCA case applied. Williams v. City of Belzoni, 229 So.3d 171, 2017 Miss. App. LEXIS 126 (Miss. Ct. App. 2017).

Where a court declined to exercise supplemental jurisdiction over the Mississippi Tort Claims Act (MTCA) claims of an arrestee and her children after their federal 42 U.S.C.S. § 1983 claims were dismissed with prejudice, those MTCA claims were dismissed without prejudice to refiling in state court, and the limitations period in Miss. Code Ann. §11-46-11 was deemed tolled during the pendency of the case in federal court. Smith v. City of Nettleton, 2008 U.S. Dist. LEXIS 101175 (N.D. Miss. Dec. 15, 2008).

Where plaintiff, the deceased patient’s daughter, brought a medical malpractice suit against the University of Mississippi Medical Center, the statute of limitations for the wrongful-death claim began to run on December 19, 2004 when the patient died; since plaintiff’s notice of claim letter was received on November 28, 2005, it was timely given within the one-year of the date of death as required by Miss. Code Ann. §11-46-11(3). The statute of limitations was tolled for ninety-five days from the date of the notice, and plaintiff timely brought suit on February 21, 2006. Univ. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837, 2008 Miss. LEXIS 597 (Miss. 2008).

Supreme Court of Mississippi held that the March 2002 amendment to Miss. Code Ann. §11-46-11(4) was unconstitutional to the extent that it made the savings clause for minors’ claims under the Miss. Tort Claims Act applicable to all claims since April 1, 1993, as doing so could revive claims that previously been barred by the statute of limitations. Univ. of Miss. Med. Ctr. v. Robinson, 876 So. 2d 337, 2004 Miss. LEXIS 778 (Miss. 2004).

Pursuant to Miss. Code Ann. §11-46-11 of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to 11-46-23, and Miss. Code Ann. §15-1-1, Miss. Code Ann. §15-1-69 did not apply to the MTCA, and it is worth noting that non-tort claims act cases are not controlling as to the applicability of §15-1-69, and because the MTCA has a one-year statute of limitation that is significantly shorter than the catchall three-year statute of limitation, the one-year statute of limitation found in Miss. Code Ann. §11-46-11 is controlling; thus, the court rejected the parents’ claim that Miss. Code Ann. § 15-1-69 applied to the MTCA to toll the statute of limitations under Miss. Code Ann. §11-46-11. Stockstill v. State, 854 So. 2d 1017, 2003 Miss. LEXIS 449 (Miss. 2003).

Injured party’s suit against a school district was timely filed; the injured party gave notice of her claim to the district within the one-year statutory time period, and she filed her suit within the subsequent 90-day period available for filing suit. Roberts v. New Albany Separate Sch. Dist., 813 So. 2d 729, 2002 Miss. LEXIS 131 (Miss. 2002).

Statutory amendments were prospective only and not retroactive; where plaintiff filed a suit under the amended statute, the claim could not be applied retroactively and the pre-amendment statute dictated the outcome of the case. Roberts v. New Albany Separate Sch. Dist., 2001 Miss. LEXIS 230 (Miss. Sept. 13, 2001), op. withdrawn, sub. op., 813 So. 2d 729, 2002 Miss. LEXIS 131 (Miss. 2002).

The one (1) year statute of limitations of the Mississippi Tort Claims Act set forth in this section is not tolled by the minors’ savings clause in §15-1-59. Hays v. Lafayette County Sch. Dist., 759 So. 2d 1144, 1999 Miss. LEXIS 376 (Miss. 1999).

The minor savings clause in §15-1-59 only applies to periods of limitation within that chapter and not to the Mississippi Tort Claims Act, and plaintiff failed to file her claim under the MTCA within the prescribed limitations period. Hays v. Lafayette County Sch. Dist., 759 So. 2d 1144, 1999 Miss. LEXIS 376 (Miss. 1999).

The Mississippi Tort Claims Act’s one year statute of limitations expressed in this section is not tolled by the “minor savings clause” of §15-1-59 until the minor achieves majority. Marcum v. Hancock County Sch. Dist., 741 So. 2d 234, 1999 Miss. LEXIS 189 (Miss. 1999).

The statute of limitations was not tolled by fraud with regard to a medical malpractice claim where (1) the first request for the plaintiff’s medical records was made on November 13, 1995, (2) when he did not receive the record by January 29, 1996, plaintiff’s attorney contacted the hospital and was informed of the fee for copying the file, and (3) after plaintiff’s attorney paid the copying fee, the medical records were delivered sometime in mid-February of 1996. Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 1999 Miss. LEXIS 31 (Miss. 1999), overruled, Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007).

14. Minor savings clause.

Trial court erred in granting a school district’s motion to dismiss a student’s action under the Mississippi Tort Claims Act because the claim was tolled under the minors savings clause until she reached the age of majority or an interested party actually filed a complaint on her behalf; the minors savings clause was the controlling provision in the student’s claim because the purpose of the statute was to protect the legal rights of those unable to assert their own rights due to disability. Doe v. Holmes Cty. Sch. Dist., 246 So.3d 920, 2018 Miss. App. LEXIS 225 (Miss. Ct. App. 2018).

Mere filing and reception of a notice of claim do not trigger the running of a statute of limitations when the statute of limitations is tolled by the minors savings clause. Doe v. Holmes Cty. Sch. Dist., 246 So.3d 920, 2018 Miss. App. LEXIS 225 (Miss. Ct. App. 2018).

Minor savings clause added to the Mississippi Tort Claims Act in 2000 did not apply retroactively to a medical negligence claim that accrued in 1997. Blailock v. Hubbs, 919 So. 2d 126, 2005 Miss. LEXIS 360 (Miss. 2005).

15. Intervention.

In an action arising out of an automobile accident in which five persons and five others were injured, it was error for the court to permit the representatives of two of the deceased persons to intervene in an action filed against the defendant city where the motion for intervention was not filed until after the expiration of the notice of claim and statute of limitations provisions of this section. City of Tupelo v. Martin, 747 So. 2d 822, 1999 Miss. LEXIS 278 (Miss. 1999).

16. Illustrative cases.

Because a state university’s head football coach, who had a viable claim against the university for breach of the implied covenant of good faith and fair dealing, did not satisfy the pre-suit notice requirement of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., the coach’s claim had to be dismissed without prejudice. The coach could refile the claim, to be tried by the judge without a jury, as the statute of limitations was tolled by the initial filing until the complaint was dismissed for lack of proper pre-suit notice. Jones v. Miss. Insts. of Higher Learning, 264 So.3d 9, 2018 Miss. App. LEXIS 378 (Miss. Ct. App. 2018).

Despite the different notice requirements in Miss. Code Ann. §15-1-36 and the Mississippi Tort Claims Act, a daughter did not have to file different wrongful death lawsuits at different times because she could have waited until the earliest she could have filed all her claims and still comply with the statute’s pre-suit notice requirement and the two-year statute of limitations; the daughter’s notice served to toll the statute of limitations, and she had an additional ninety days to file suit. Estate of Davis v. Blaylock, 212 So.3d 755, 2017 Miss. LEXIS 2 (Miss. 2017).

Sweet-potato buyer could not maintain his claims against a various state officials for, inter alia, malicious prosecution, false arrest and imprisonment, abuse of process, and intentional infliction of emotional distress because the officials were entitled to sovereign immunity as to the buyer’s federal civil rights claims since states were not “persons” subject to liability and since some alleged personal involvement in the complaint or a causal connection between their conduct and the violation was required, and the buyer’s state-law claims failed to comply with the 90-day pre-suit notice requirement and the one-year statute of limitations in the Mississippi Tort Claims Act. Gatheright v. Barbour, — F. Supp. 3d —, 2017 U.S. Dist. LEXIS 3143 (N.D. Miss. Jan. 9, 2017), superseded, — F. Supp. 3d —, 2017 U.S. Dist. LEXIS 17366 (N.D. Miss. Feb. 6, 2017).

University medical center did not waive its right to claim its affirmative statute-of-limitations defense because it provided a reasonable justification for why it did not move the trial court for summary judgment until months after the complaint was filed as it lacked exact knowledge of when plaintiff discovered the claim necessary to present its statute-of-limitations defense; it pleaded the defense and timely pursued discovery of the information needed to successfully bring the defense to the court’s attention; and, once it gained the necessary information via plaintiff’s deposition, it promptly filed a motion for summary judgment on the basis of its defense and pursued the court’s adjudication of its defense. Univ. of Miss. Med. Ctr. v. Hampton, 227 So.3d 1138, 2016 Miss. App. LEXIS 652 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 413 (Miss. 2017).

In a wrongful death action, plaintiff’s complaint was filed outside of the limitations period because the discovery date of her cause of action was November 12, 2010; the university medical center received notice of plaintiff’s claim on November 7, 2011; the 95-day tolling period ended on February 10, 2012; the medical center denied plaintiff’s claim on February 28, 2012, but the remaining five days in the original one-year statute were calculated from February 10, 2012, the date on which the tolling period expired; and the five days remaining in the original limitations period combined with the final 90 days expired on May 15, 2012; thus, plaintiff’s complaint filed on May 29, 2012, was filed 14 days outside of the limitations period. Univ. of Miss. Med. Ctr. v. Hampton, 227 So.3d 1138, 2016 Miss. App. LEXIS 652 (Miss. Ct. App. 2016), cert. dismissed, — So.3d —, 2017 Miss. LEXIS 413 (Miss. 2017).

Trial court properly dismissed the injured plaintiffs’ negligence action against a city and a visitors bureau because the plaintiffs failed to present a question of material fact regarding the city’s liability and failed to give the bureau proper notice of the claim under the Mississippi Tort Claims Act where, while the bureau’s budget had to be approved by the city, it was a political subdivision that was separate entity from the city, funded by a tax, the proceeds of which were deposited into a separate account dedicated solely to the bureau’s activities,and the legislature vested the bureau with a variety of powers to carry out duties for the city; primarily promoting tourism for the benefit of the city and its citizens. Barnes v. City of Canton, 207 So.3d 1272, 2016 Miss. App. LEXIS 268 (Miss. Ct. App. 2016).

When a developer sued a city, the city’s public utilities commission, and a utilities department (department) for damage to the developer’s property in installing utility lines, it was error to grant summary judgment dismissing the developer’s claims under the Mississippi Tort Claims Act on the basis of the statute of limitations because the developer’s claims arguably did not accrue until the department refused to repair the damage, rather than when the developer became aware of the damage. Kelley v. Corinth PUC, 200 So.3d 1107, 2016 Miss. App. LEXIS 36 (Miss. Ct. App.), cert. denied, — So.3d —, 2016 Miss. LEXIS 393 (Miss. 2016), cert. denied, 203 So.3d 598, 2016 Miss. LEXIS 394 (Miss. 2016), cert. denied, 203 So.3d 599, 2016 Miss. LEXIS 403 (Miss. 2016).

Ambulance service was entitled to Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., protections because the ambulance service was an instrumentality of governmental entities. Therefore, the ambulance service was entitled to summary judgment in a wrongful death suit because the complainant did not file her complaint within the one-year statute of limitations. Woodall v. AAA Ambulance Serv., 161 So.3d 1071, 2015 Miss. LEXIS 188 (Miss. 2015).

Trial court did not abuse its discretion by determining that no good cause was shown by a property owner in failing to timely serve process on a county under Miss. R. Civ. P. 4, because the owner made no attempt to obtain an extension of time to serve process on the county. Sturdivant v. Moore Bayou Water Ass'n, 130 So.3d 1152, 2013 Miss. App. LEXIS 493 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 578, 2014 Miss. LEXIS 81 (Miss. 2014).

Under Miss. R. Civ. P. 4(h), the trial court abused its discretion by denying school district’s and bus driver’s motion to set aside the order granting the extension of time because substantial evidence did not support a finding of good cause for the driver’s failure to serve the school district and bus driver within the required 120-day period. Thus, the other driver was not entitled to an extension of time to effect service, the statute of limitations had expired under Miss. Code Ann. §11-46-11(3), and the complaint was subject to dismissal with prejudice. Copiah County Sch. Dist. v. Buckner, 61 So.3d 162, 2011 Miss. LEXIS 258 (Miss. 2011).

Personal-injury action did not need to be remanded for a determination of the mother’s competency under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq., because the son did not request a determination of unsoundness of mind from the trial court and issues not raised in the trial court were barred from consideration at the appellate level. Further, because the son brought the action on behalf of his mother and she was not the plaintiff in the case, her competence to assert her rights in the lawsuit was not at issue, Miss. Code Ann. §11-46-11(4). Kimball Glassco Residential Ctr. v. Shanks, 64 So.3d 941, 2011 Miss. LEXIS 281 (Miss. 2011).

Driver and center did not waive their defenses under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-1 et seq. Although there was an approximately 11-month delay in the case, during the delay no party took any action to advance the litigation and during the delay, the center and driver pursued their affirmative defenses by informing the mother’s son of their intent to seek a hearing on the motion to dismiss, Miss. Code Ann. §11-46-11(3). Kimball Glassco Residential Ctr. v. Shanks, 64 So.3d 941, 2011 Miss. LEXIS 281 (Miss. 2011).

Grant of summary judgment in favor of the university, Board, and others was proper because the professor failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit; her claims based on tortious conduct, tortious breach of contract, and breach of an implied contractual term or warranty were foreclosed by her failure to adhere to the requirement of the Mississippi Tort Claims Act, Miss Code Ann. §11-46-1 et seq., that all administrative remedies be exhausted prior to filing suit. Whiting v. Univ. of S. Miss., 62 So.3d 907, 2011 Miss. LEXIS 170 (Miss. 2011), overruled in part, Springer v. Ausbern Constr. Co., 231 So.3d 980, 2017 Miss. LEXIS 418 (Miss. 2017).

In a medical malpractice action, summary judgment was properly granted in favor of defendant doctor because he was employed by an entity covered by the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23 (2002), and was thus afforded the MTCA’s protection and because plaintiff patient failed to provide a timely notice of the claim under the MTCA. Because MTCA’s one-year statute of limitations had expired, the patient was barred from asserting a claim for the wrongful death of her 10-month-old son. Gorton v. Rance, 52 So.3d 351, 2011 Miss. LEXIS 62 (Miss. 2011).

Trial court erred by denying the community hospital’s motion for summary judgment because: (1) the community hospital was a political subdivision of the State under Miss. Code Ann. §11-46-1(i), and therefore the son was subject to the notice requirements and statutes of limitations of Miss. Code Ann. §11-46-11(1); (2) under §11-46-11(1), proper service of notice to the hospital would be on the CEO of the hospital, and not the county; (3) the trial court erred by concluding that substantial compliance with § 11-46-11(1) in regard to whom the notice was sent was erroneous; and (4) because the son never filed the statutorily required notice with the hospital’s CEO, the hospital’s sovereign immunity from suit was intact. Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 2010 Miss. LEXIS 645 (Miss. 2010).

Jackson v. Lumpkin, 697 So. 2d 1179, 1181 (Miss. 1997) and Carr v. Town of Shubuta, 733 So. 2d 261, 265 (Miss. 1999) and their progeny are overruled to the extent that these cases characterize the notice requirements set out in the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-11 (Rev. 2002), as jurisdictional requirements because the notice requirements in the MTCA are substantive requirements, which are no more or less important than a statute of limitations; the notice requirements in the MTCA are not jurisdictional, but they are nonjurisdictional and, therefore, waivable. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Medical center’s motion for summary judgment should have been denied in a beneficiary’s wrongful-death action because the medical center waived its objection to the beneficiary’s noncompliance with the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11(1), when it participated in the lawsuit and failed to raise the beneficiary’s noncompliance with the ninety-day-notice requirement until two-and-a-half years after the suit was filed; at no point throughout the trial and appellate processes did the medical center provide an explanation for why it waited two-and-a-half years from the filing of the complaint to actually pursue a defense that was available to it from the moment the beneficiary filed the complaint, and waiting for that length of time and doing nothing to prevent the case from proceeding was unreasonable and inexcusable. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Where a wrongful death beneficiary served a notice of claim upon a medical center and filed a wrongful death claim 41 days later, the medical center was entitled to summary judgment because the complaint was filed in violation of the 90-day notice requirement of Miss. Code Ann. §11-46-11(1), which courts were bound to strictly enforce. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 652, 2008 Miss. App. LEXIS 774 (Miss. Ct. App. 2008), rev'd, 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Where the deceased patient’s daughter brought a medical malpractice suit against the University of Mississippi Medical Center after it was discovered that a sponge was left in the patient’s body during a surgery performed on September 1, 2004, plaintiff sent a notice-of-claim letter to the medical center on November 21, 2005 and filed a medical negligence suit on February 21, 2006. The Supreme Court of Mississippi held that plaintiff’s survival claim based on the negligent act of leaving the sponge in the patient accrued more than one year prior to providing notice; thus, that claim was barred by the statute of limitations. Univ. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837, 2008 Miss. LEXIS 597 (Miss. 2008).

In a medical malpractice case, a hospital patient substantially complied with Miss. Code Ann. §11-46-11(2)’s requirement that she list all persons known to be involved by stating multiple hospital employees caused her injuries. If the identity of these persons was not known, the patient, who was unconscious a majority of her time at the hospital, was not required to provide their names. Lee v. Mem'l Hosp., 999 So. 2d 1263, 2008 Miss. LEXIS 599 (Miss. 2008).

Ninety-day notice requirement of Miss. Code Ann. §11-46-11 was to be strictly enforced by the courts; where plaintiffs in an automobile negligence action against a governmental agency and its employee failed to strictly comply with the 90-day pre-suit notice requirement of Miss. Code Ann. §11-46-11(1) and filed their complaint only seven days after sending their notice letter, the circuit court never obtained jurisdiction over their complaint and therefore erred in denying the government agency’s motion to dismiss. Bunton v. King, 995 So. 2d 694, 2008 Miss. LEXIS 447 (Miss. 2008), overruled in part, Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 2009 Miss. LEXIS 396 (Miss. 2009).

Where a doctor working in partnership with a community hospital was sued for medical malpractice, he did nothing to assert immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., for five years until he moved for summary judgment; because he delayed and actively participated in discovery, he waived MTCA immunity. To be in compliance with the MTCA, plaintiff would have had to sue the partnership, joining the doctor under Miss. Code Ann. §11-46-7(2) in his representative capacity only, and would have been required to provide ninety-day notice pursuant to Miss. Code Ann. §11-46-11(1). Estate of Grimes v. Warrington, 982 So. 2d 365, 2008 Miss. LEXIS 101 (Miss. 2008).

Wife’s medical malpractice action against a hospital and a physician for her husband’s death was untimely under Miss. Code Ann. §11-46-11(3), and therefore the trial court properly granted the hospital and physician summary judgment, where her husband died on April 17, 2000, and her notice of claim was not provided to the hospital until February 13, 2002, and was never provided to the physician. Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007), op. withdrawn, sub. op., 2007 Miss. LEXIS 710 (Miss. Dec. 6, 2007).

Where plaintiff fireman filed claims against defendants, a city, its mayor, and an alderman for wrongful demotion, because the fireman failed to provide the pre litigation notice as required by Miss. Code Ann. §11-46-11(1) of the Mississippi Tort Claims Act, a wrongful demotion tort claim was barred. Montgomery v. Mississippi, 498 F. Supp. 2d 892, 2007 U.S. Dist. LEXIS 49604 (S.D. Miss. 2007).

Appellate court reversed the denial of a university medical center’s motion for summary judgment because plaintiff failed to comply with the ninety-day notice requirement under Miss. Code Ann. §11-46-11(1). Judgment was entered for the medical center. Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss.), cert. denied, 549 U.S. 995, 127 S. Ct. 549, 166 L. Ed. 2d 369, 2006 U.S. LEXIS 8061 (U.S. 2006).

Summary judgment in favor of the driver was affirmed because there was no issue of material fact that the driver, by running a stop sign, was not acting outside the course and scope of her employment with the governmental entity, and it was undisputed that the claimants did not comply with the one year statute of limitations that accompanied actions under the Mississippi Tort Claims Act. Jackson v. Hodge, 911 So. 2d 625, 2005 Miss. App. LEXIS 647 (Miss. Ct. App. 2005).

Government hospital was properly dismissed from a medical negligence suit; the parents of a child with cerebral palsy did not sue the hospital within the one-year limitation set forth in the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11(3). The discovery rule did not apply, because the child’s injuries were apparent at birth. Blailock v. Hubbs, 919 So. 2d 126, 2005 Miss. LEXIS 360 (Miss. 2005).

Even if the language in the contract had been convincing enough to create a private entity and the county hospital had been deemed private, the injured person’s claim remained one of premises liability. The agreement did not alter the fact that the county remained the owner of the physical property that comprised the hospital, and that includes the sidewalk outside the hospital where the injure person tripped and fell; thus, the trial court did not err in granting summary judgment in favor of the county hospital due to the injured person’s claim being filed outside the one-year statute of limitations under Miss. Code Ann. Section 11-46-11(3). Allstadt v. Baptist Mem'l Hosp., 893 So. 2d 1083, 2005 Miss. App. LEXIS 133 (Miss. Ct. App. 2005).

Trial court erred in denying the medical center’s summary judgment claim. The statute of limitations barred the minor’s claim in 1996 and Miss. Code Ann. 11-46-11(4) unconstitutional to the extent that it revived claims that had previously been barred by the statute of limitations. Univ. of Miss. Med. Ctr. v. Robinson, 876 So. 2d 337, 2004 Miss. LEXIS 778 (Miss. 2004).

Even though a man, who qualified as an “employee” for purposes of Miss. Code Ann. §11-46-1(f) of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§11-46-1 to11-46-23, caused an accident that injured an individual and then failed to disclose to the individual that he was a county employee, because the individual failed to establish that the county withheld information regarding the employee’s work status, did not show that the county had provided the individual with misleading or inaccurate information, and did not exercise due diligence in determining the true parties to the lawsuit or in determining the man’s work status, the court affirmed the trial court’s grant of summary judgment under Miss. R. Civ. P. 56(c) in favor of the county and the employee, man on the grounds that the individual had failed to substantially comply with the notice requirements of the MTCA, and, that therefore, the statute of limitations had expired. Ray v. Keith, 859 So. 2d 995, 2003 Miss. LEXIS 409 (Miss. 2003).

Trial court did not err when, pursuant to Miss. R. Civ. P. 12(b)(6), a patient’s complaint against a state hospital and physicians for failure to comply with Miss. Code Ann. §11-46-11 of the Mississippi Tort Claims Act; the court found that (1) the record did not reflect that the patient had complied with the notice of claim requirements under §11-46-11(3), and (2) the patient waited for over two years to file his action, which fell outside of the limitations period. Southern v. Miss. State Hosp., 853 So. 2d 1212, 2003 Miss. LEXIS 410 (Miss. 2003).

Because a citizen failed to file a notice of claim against the city pursuant to Miss. Code Ann. §11-46-11(1) of the Mississippi Tort Claims Act, and because a document agreed to between the citizen and the city four years earlier did not serve as proper notice, the citizen failed to comply with the Act and the action was properly dismissed under Miss. R. Civ. P. 12(b)(6). Black v. City of Tupelo, 853 So. 2d 1221, 2003 Miss. LEXIS 414 (Miss. 2003).

Because parents waited over one year after their son’s death to file an action under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 to11-46-23, against the State and state agencies, and nothing operated to toll the statute of limitations under Miss. Code Ann. §11-46-11, the action was time-barred and properly dismissed pursuant to Miss. R. Civ. P. 12(b)(6). Stockstill v. State, 854 So. 2d 1017, 2003 Miss. LEXIS 449 (Miss. 2003).

Patient in medical malpractice action who underwent surgery, was aware the next day that she had suffered a stroke, and two years after the surgery hand-delivered a letter to two of her treating physicians, as well as filed her initial complaint against a third physician was time-barred from bringing her medical malpractice action. Gilchrist v. Veach, 807 So. 2d 485, 2002 Miss. App. LEXIS 79 (Miss. Ct. App. 2002).

A notice of claim was sufficient with regard to a constable, notwithstanding that it misidentified the county for which he was a constable, where the notice of claim was delivered to the county administrator for the county that employed the constable, the constable had been employed by the county for several years, and it was clear that the county administrator knew of the existence of the constable. Williams v. Toliver, 759 So. 2d 1195, 2000 Miss. LEXIS 115 (Miss. 2000).

The trial court was correct in determining that two residents were employees of a state university hospital and that the plaintiff’s failure to comply with the resulted in their dismissal since both doctors were student doctors where one was an intern in his first year of residency and the other was a resident physician in training there; however, the dismissal of a third doctor was premature and further discovery was required to determine whether he was an employee of the hospital or an independent contractor. Owens v. Thomae, 759 So. 2d 1117, 1999 Miss. LEXIS 277 (Miss. 1999).

The plaintiff substantially complied with the notice requirements of this section, notwithstanding that the notice of claim was not personally delivered or sent by registered or certified mail, since the defendant school district was not prejudiced by the plaintiff’s failure to send her letter in the manner prescribed by statute; the superintendent of the school district was aware of the claim and the matter was already in the hands of the school district’s insurance company. Overstreet v. George County Sch. Dist., 741 So. 2d 965, 1999 Miss. App. LEXIS 358 (Miss. Ct. App. 1999).

Despite the fact that the plaintiff’s notice of claim letter was sent to the wrong person and sent via an improper route, she substantially satisfied the notice requirements of this section since she made a reasonable, good faith effort to comply with this section’s requirements, the defendant received actual notice of her claim, and the defendant suffered no actual prejudice as a result of the plaintiff’s failure to comply with the statute. McNair v. University of Miss. Med. Ctr., 742 So. 2d 1078, 1999 Miss. LEXIS 192 (Miss. 1999).

Where the plaintiff served the mayor of the defendant city with a complaint on April 2, 1997 and with a notice of claim on November 12, 1997 and where the complaint and the notice of claim taken together as a whole outlined each and every aspect required by the statute, she substantially complied with the notice requirement. Jackson v. City of Booneville, 738 So. 2d 1241, 1999 Miss. LEXIS 182 (Miss. 1999), overruled in part, Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 2006 Miss. LEXIS 177 (Miss. 2006).

The court refused to lift statutory immunity in medical malpractice cases against state hospitals, notwithstanding the argument that hospitals should be prevented from claiming immunity merely because they’re owned by a governmental entity unless acting in some governmental capacity. Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 1999 Miss. LEXIS 31 (Miss. 1999), overruled, Caves v. Yarbrough, 2007 Miss. LEXIS 614 (Miss. Nov. 1, 2007).

OPINIONS OF THE ATTORNEY GENERAL

The president of the board of supervisors is the chief executive officer for the county for the purpose of giving notice of claim under the statute. Creekmore, August 21, 1998, A.G. Op. #98-0478

RESEARCH REFERENCES

ALR.

Insufficiency of notice of claim against municipality as regards statement of place where accident occurred. 69 A.L.R.4th 484.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

Person or entities upon whom notice of injury or claim against state or state agencies may or must be served. 45 A.L.R.5th 173.

Sufficiency of notice of claim against local governmental unit as regards identity, name, address, and residence of claimant. 53 A.L.R.5th 617.

Sufficiency of notice of claim against local political entity as regards time when accident occurred. 57 A.L.R.5th 689.

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

Frasier III, A Review of Issues Presented by §11-46-11

Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues: Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions, 76 Miss. L.J. 973, Spring, 2007.

§ 11-46-13. Jurisdiction; appeals; venue.

  1. Jurisdiction for any suit filed under the provisions of this chapter shall be in the court having original or concurrent jurisdiction over a cause of action upon which the claim is based. The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter. Appeals may be taken in the manner provided by law.
  2. The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

HISTORY: Laws, 1984, ch. 495, § 8; reenacted without change, Laws, 1985, ch. 474, § 7; Laws, 1987, ch. 483, § 7; Laws, 1992, ch. 491 § 1; Laws, 1993, ch. 476, § 10, eff from and after passage (approved April 1, 1993).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

JUDICIAL DECISIONS

1. Applicability.

2. Venue.

3. Jury trial.

1. Applicability.

In a wrongful death action where the decedent died prior to the enactment of the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-13 was not applicable because the statute did not contain plain and clearly expressed language that it was to be retroactive. Boston v. Hartford Accident & Indem. Co., 822 So. 2d 239, 2002 Miss. LEXIS 119 (Miss. 2002), overruled in part, Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 2004 Miss. LEXIS 1329 (Miss. 2004).

2. Venue.

Trial court erred in denying the Mississippi Department of Human Services’ (MDHS’s) motion for a change of venue, because the venue for suits against MDHS was in the county in which its negligence occurred, and plaintiff alleged no facts showing that any negligent decisions by MDHS occurred in the county where she filed suit, which was where MDHS had its headquarters. Miss. Dep't of Human Servs. v. S.C., 119 So.3d 1011, 2013 Miss. LEXIS 406 (Miss. 2013).

Miss. Code Ann. §11-46-13 applied, where the city, a subdivision of the State of Mississippi, was a defendant and, therefore, §11-46-13 was the controlling venue statute; because the city was wholly situated in Lauderdale County, venue was only proper in Lauderdale County and not in Hinds County, and the suit should have been transferred. United States Fid. & Guar. Co. v. Moss, 873 So. 2d 76, 2004 Miss. LEXIS 284 (Miss. 2004).

Trial court abused its discretion in denying a motion by a hospital and three physicians to transfer venue in a medical malpractice action because a decedent’s heirs had failed to assert a reasonable claim of liability against certain defendants that had been dismissed from the action and because the hospital was a community hospital under the Mississippi Tort Claims Act and was entitled to venue in the county in which its governing body’s principal offices were located. Wayne Gen. Hosp. v. Hayes, 2003 Miss. LEXIS 598 (Miss. Nov. 6, 2003).

In an action against the state and two counties to recover for the death of a prisoner who was found hanging by a shoestring in a shower stall in a jail, the state was properly named as a defendant and proper venue was the county in which the prisoner hanged himself. Estate of Jones v. Quinn, 716 So. 2d 624, 1998 Miss. LEXIS 296 (Miss. 1998).

3. Jury trial.

Where an appellate court determined that a deputy who assaulted an individual in attempting to force the individual to sit for a casino security photograph, was acting for the casino, and not in his official capacity for the county, the deputy was not entitled to immunity and the individual was entitled to a jury trial. Kirk v. Crump, 886 So. 2d 741, 2004 Miss. App. LEXIS 613 (Miss. Ct. App.), cert. denied, 887 So. 2d 183, 2004 Miss. LEXIS 1384 (Miss. 2004).

There is no right to a jury trial under the Tort Claims Act. Simpson v. City of Pickens, 761 So. 2d 855, 2000 Miss. LEXIS 133 (Miss. 2000).

RESEARCH REFERENCES

Law Reviews.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

§ 11-46-15. Limitation of liability; exemplary or punitive damages; interest; attorney’s fees; reduction of award.

  1. In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
    1. For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00);
    2. For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00);
    3. For claims or causes of action arising from acts or omissions occurring on or after July 1, 2001, the sum of Five Hundred Thousand Dollars ($500,000.00).
  2. No judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award for exemplary or punitive damages or for interest prior to judgment, or an award of attorney’s fees unless attorney’s fees are specifically authorized by law.
  3. Except as otherwise provided in Section 11-46-17(4), in any suit brought under the provisions of this chapter, if the verdict which is returned, when added to costs and any attorney’s fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount of liability provided in subsection (1) of this section.

HISTORY: Laws, 1984, ch. 495, § 9; reenacted without change, Laws, 1985, ch. 474, § 8; Laws, 1987, ch. 483, § 8; Laws, 1988, ch. 442, § 5; Laws, 1989, ch. 537, § 5; Laws, 1990, ch. 518, § 5; Laws, 1991, ch. 618, § 5; Laws, 1992, ch. 491 § 2, eff from and after passage (approved May 12, 1992).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Cross References —

Definition of “employee,” see §11-46-1.

Waiver of immunity, see §11-46-5.

Provisions relative to insurance coverage in excess of the maximum liability set forth in this section and waiver of such maximum, see §11-46-17.

Limitations of liability provided herein also available to emergency 911 telephone service suppliers operating within state, see §19-5-361.

JUDICIAL DECISIONS

1. Interest.

2. Interpretation.

3. Joint liability.

4. Governmental immunity.

5. Determination of damages.

1. Interest.

In a medical malpractice case filed under the Mississippi Tort Claims Act, Miss. Code Ann. §§11-46-1 et seq., both parties agreed that pre-judgment interest was improperly awarded under Miss. Code Ann. §11-46-15. Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d 141, 2007 Miss. LEXIS 691 (Miss. 2007).

2. Interpretation.

Post-judgment interest over and above the statutory cap may be awarded against a governmental entity because such is not excluded under Miss. Code Ann. §11-46-15(2). Miss. Dep't of Mental Health v. Hall, 936 So. 2d 917, 2006 Miss. LEXIS 462 (Miss. 2006).

A thorough review of Miss. Code Ann. §1-3-33 and the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., revealed that there was no contrary intent manifested by the Legislature that meant that the MTCA should be interpreted only in the singular manner; Miss. Code Ann. §11-46-15(1) was interpreted by using singular or plural language. Miss. DOT v. Allred, 928 So. 2d 152, 2006 Miss. LEXIS 114 (Miss. 2006).

This section does not bar the award of postjudgment interest against a governmental entity. City of Jackson v. Williamson, 740 So. 2d 818, 1999 Miss. LEXIS 89 (Miss. 1999).

3. Joint liability.

In an action against a city and the plaintiff’s underinsured motorist carrier arising from a motor vehicle accident involving a police officer, since the maximum amount recoverable from the defendant city was $50,000, a judgment in excess of $100,000 was reformed to provide that the insurance carrier was liable for its $50,000 policy and that the city was liable for $50,000. City of Jackson v. Perry, 764 So. 2d 373, 2000 Miss. LEXIS 107 (Miss. 2000).

4. Governmental immunity.

Mississippi Tort Claims Act, Miss. Code Ann. §11-46-15(2) bars assessment of punitive damages against state agencies. Claiborne v. Miss. Bd. of Pharm., 2011 U.S. Dist. LEXIS 93849 (S.D. Miss. Aug. 22, 2011).

A review of the agreement between the non-governmental entity and the community hospital indicated that the entity was an instrumentality of the nursing home. As an “instrumentality” of a community hospital, the entity was entitled to the protections, limitations, and immunities of the Mississippi Tort Claims Act. Fedrick v. Quorum Health Res., Inc., 45 So.3d 667, 2009 Miss. App. LEXIS 926 (Miss. Ct. App. 2009).

In plaintiff’s 42 U.S.C.S. § 1983 suit, plaintiff’s claims for punitive damages failed under Miss. Code Ann. §11-46-15(2) and because the 42 U.S.C.S. § 1983 claims against the county failed as a matter of law. Grosch v. Tunica County, 2008 U.S. Dist. LEXIS 12736 (N.D. Miss. Feb. 4, 2008).

Medical center was an instrumentality of the community hospital as the hospital had nearly total interest in the income and losses of the medical center and majority control over the center’s Executive Committee membership, which clearly qualified the hospital as an intermediary or agent through which certain functions of the hospital were accomplished; therefore, the medical center was an instrumentality of the hospital and as an instrumentality, the center was entitled to the protections, limitations and immunities of the Mississippi Tort Claims Act. Bolivar Leflore Med. Alliance, LLP v. Williams, 938 So. 2d 1222, 2006 Miss. LEXIS 536 (Miss. 2006).

Mississippi is a single occurrence state where liability per occurrence is limited to a statutory amount or the policy limits for any excess coverage purchased to cover such claims; therefore the district court did not err in enjoining the driver to abandon further efforts to recover from appellees after $50,000 was interpled into the court’s registry. Allred v. Yarborough, 843 So. 2d 727, 2003 Miss. LEXIS 199 (Miss. 2003).

Miss. Code Ann. §11-46-15, provides that no governmental body, or employee thereof, may be held liable for punitive damages in any action in the courts of the State of Mississippi; thus, a resident’s claims for punitive damages from a county were barred. Madison v. DeSoto County, 822 So. 2d 306, 2002 Miss. App. LEXIS 82 (Miss. Ct. App. 2002).

5. Determination of damages.

In a claim against the city under the Mississippi Tort Claims Act for plaintiffs’ damages resulting from a collision with a suspect’s vehicle involved in a high speed pursuit by a police officer, substantial evidence did not support the trial court’s finding that the suspect’s actions were not a proximate contributing cause of the accident and constituted zero percent of the injuries sustained by plaintiffs because the suspect prompted the pursuit, and his vehicle actually collided into the one occupied by plaintiffs. City of Jackson v. Lewis, 153 So.3d 689, 2014 Miss. LEXIS 580 (Miss. 2014).

Because a decedent began to decline in physical and mental health shortly after a fall upon exiting a city transport bus that sent the decedent to a hospital, and an expert causally linked the deterioration and rising medical costs to a city’s negligent act, the estate administrator was awarded damages of $250,000 under the Mississippi Tort Claims Act, Miss. Code Ann. §11-46-15(1)(b). City of Jackson v. Estate of Stewart, 48 So.3d 502, 2010 Miss. LEXIS 541 (Miss. 2010).

There was sufficient evidence to support a wrongful death judgment against a hospital under the Mississippi Tort Claims Act based on medical malpractice where an expert testified that the hospital failed to turn the patient, failed to properly treat a decubitus ulcer, and failed to make sure the patient had proper nutrition and hydration; moreover, the expert testified that sepsis from the ulcer was the cause of death, and considering the size of the wound and the amount of pain and suffering, a million dollar judgment was not outrageous. Delta Reg'l Med. Ctr. v. Venton, 964 So. 2d 500, 2007 Miss. LEXIS 517 (Miss. 2007).

In a child’s suit against the Mississippi DHS, the record failed to indicate how a trial court reached the figure of $750,000 damage award; the trial judge found that DHS had breached duties towards the child, but there was no finding in the record as to what damages were attributable to which breach. Miss. Dep't of Human Servs. v. S.W., 974 So. 2d 253, 2007 Miss. App. LEXIS 503 (Miss. Ct. App. 2007).

OPINIONS OF THE ATTORNEY GENERAL

County boards of supervisors may, within limits prescribed by Section 11-46-15, settle claims for property damage and injuries sustained from accidents involving county owned and operated equipment without necessity for enactment of local and private legislation by Legislature. Compretta, Feb. 16, 1994, A.G. Op. #94-0058.

A private insurer should not be called upon to pay any judgment in excess of the amount established by Section 11-46-15, as no such judgment will survive the mandated judicial intervention. Hardy, February 16, 1996, A.G. Op. #96-0053.

The Pat Harrison Waterway District is immune from any liability exceeding the statutory maximum provided for by this section for negligent acts, although the question of whether ticket purchases may create contractual liability that would not be limited by sovereign immunity remains open to future interpretation. Matthews, July 18, 1997, A.G. Op. #97-0391.

Provided the mandates of the Tort Claims Act have been met and upon the advice and consent of its insurance carrier, or administrator if self-insured, a county school board may settle valid claims for property damage and personal injury upon proper resolution spread on the minutes. Adams, Mar. 8, 2002, A.G. Op. #02-0087.

The Mississippi Military Department is authorized to purchase liability insurance to cover claims in excess of the amounts provided in the Tort Claims Act, as long as the purchase of such coverage is made in accordance with the provisions of the Act. Majors, Sept. 29, 2006, A.G. Op. 06-0484.

RESEARCH REFERENCES

Law Reviews.

1984 Mississippi Supreme Court Review: Civil Procedure. 55 Miss L. J. 49, March, 1985.

The History and Future of Sovereign Immunity for Mississippi School Districts. 58 Miss. L. J. 275, Fall 1988.

§ 11-46-16. Expired.

Expired by operation of law, eff from and after July 1, 1993 as to the state, and from and after October 1, 1995 as to political subdivisions.

[Laws,1990, ch. 518, § 6; Laws, 1992, ch. 491 § 7; Laws, 1992 Special Session, ch. 3, § 3, eff from and after passage (approved September 16, 1992).]

Editor’s Notes —

Former §11-46-16 pertained to authority of governmental entities to purchase liability insurance, and immunity from liability to the extent of such coverage.

This section expired pursuant to the terms of former subsection (4), which provided that “this section shall be of no force or effect from and after July 1, 1993, as to the state and from and after October 1, 1993, shall be of no force or effect as to political subdivisions.”

§ 11-46-17. Creation of Tort Claims Fund; liability insurance.

  1. There is hereby created in the State Treasury a special fund to be known as the “Tort Claims Fund.”

    All monies that the Department of Finance and Administration receives and collects under the provisions of subsection (2) of this section and all funds that the Legislature appropriates for use by the board in administering the provisions of this chapter shall be deposited in the fund. All monies in the fund may be expended by the board for any and all purposes for which the board is authorized to expend funds under the provisions of this chapter. All interest earned from the investment of monies in the fund shall be credited to the fund. Monies remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund.

  2. From and after July 1, 1993, each governmental entity other than political subdivisions shall participate in a comprehensive plan of self-insurance or one or more policies of liability insurance or combination of the two (2), all to be administered by the Department of Finance and Administration. The plan shall provide coverage to each of such governmental entities for every risk for which the board determines the respective governmental entities to be liable in the event of a claim or suit for injuries under the provisions of this chapter, including claims or suits for injuries from the use or operation of motor vehicles; the board may allow the plan to contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to governmental entities. The plan may also provide coverage for liabilities outside the provisions of this chapter, including, but not limited to, liabilities arising from Sections 1983 through 1987 of Title 42 of the United States Code and liabilities from actions brought in foreign jurisdictions, and the board shall establish limits of coverage for such liabilities. Each governmental entity participating in the plan shall make payments to the board in such amounts, times and manner determined by the board as the board deems necessary to provide sufficient funds to be available for payment by the board of the costs it incurs in providing coverage for the governmental entity. Each governmental entity of the state other than the political subdivisions thereof participating in the plan procured by the board shall be issued by the board a certificate of coverage whose form and content shall be determined by the board but which shall have the effect of certifying that, in the opinion of the board, each of such governmental entities is adequately insured.

    Before July 1, 1993, the Board of Trustees of State Institutions of Higher Learning may provide liability coverage for each university, department, trustee, employee, volunteer, facility and activity as the board of trustees, in its discretion, shall determine advisable. If liability coverage, either through insurance policies or self-insurance retention is in effect, immunity from suit shall be waived only to the limit of liability established by the insurance or self-insurance program. From and after July 1, 1993, liability coverage established by the board of trustees must conform to the provisions of this section and must receive approval from the board. Should the board reject a plan, the board of trustees shall participate in the liability program for state agencies established by the board.

  3. All political subdivisions shall, from and after October 1, 1993, obtain a policy or policies of insurance, establish self-insurance reserves, or provide a combination of insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; a political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against a political subdivision relative to limits of liability under the Tort Claims Act. The policy or policies of insurance or self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All the plans of insurance or reserves or combination of insurance and reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the board’s approval of its plan, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance or reserves or combination of insurance and reserves to be approved by the board.
  4. Any governmental entity may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of the excess insurance carried; however, the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of excess liability insurance carried.
  5. Any two (2) or more political subdivisions may contract to pool their liabilities as a group under this chapter. The pooling agreements and contracts may provide for the purchase of one or more policies of liability insurance or the establishment of self-insurance reserves or a combination of insurance and reserves and shall be subject to approval by the board in the manner provided in subsections (2) and (3) of this section.
  6. The board shall have subrogation rights against a third party for amounts paid out of any plan of self-insurance administered by the board pursuant to this section on behalf of a governmental entity that is not a political subdivision as a result of damages caused under circumstances creating a cause of action in favor of such governmental entity against a third party. The board shall deposit in the Tort Claims Fund all monies received in connection with the settlement or payment of any claim, including proceeds from the sale of salvage.
  7. During fiscal year 2017, the board shall have full authority to assess agencies and governmental entities as per Section 11-46-19(1)(r).

HISTORY: Laws, 1984, ch. 495; reenacted and amended, Laws, 1985, ch. 474, § 9; reenacted and amended, Laws, 1986, ch. 438, § 4; Laws, 1987, ch. 483, § 9; Laws, 1988, ch. 442, § 6; Laws, 1988, ch. 479, § 4; Laws, 1989, ch. 537, § 6; Laws, 1990, ch. 518, § 7; Laws, 1991, ch. 618, § 7; Laws, 1992, ch. 491 § 8; Laws, 1993, ch. 476, § 6; Laws, 1995, ch. 568, § 1; Laws, 1996, ch. 377, § 1; Laws, 1998, ch. 496, § 1; Laws, 2013, ch. 385, § 2; Laws, 2016, ch. 459, § 66; Laws, 2017, 1st Ex Sess, ch. 7, § 10, eff from and after passage (approved June 23, 2017).

Editor’s Notes —

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Laws of 2013, ch. 385, § 6, effective March 20, 2013, provides:

“SECTION 6. This act shall take effect and be in force from and after its passage [approved March 20, 2013]; volunteer fire departments shall have until July 1, 2013, to obtain and have approved the insurance policies of self-insurance reserves or combination thereof required for political subdivisions under the Tort Claims Act.”

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2013 amendment, in (2), substituted “or” for “and/or” and inserted “or combination of the two, all to be” in the first sentence; deleted “In addition to the coverage authorized in the preceding sentence” at the beginning of the third sentence; in (3), substituted “or reserves or combination of insurance and reserves” for “and/or reserves” in the fourth and last sentences; in (5), substituted “may contract to pool” for “are hereby authorized to enter into agreement and to contract between and among themselves for the purpose of pooling” in the first sentence and substituted “or” for “and/or” and inserted “or a combination of insurance and reserves” in the second sentence; and in (6), inserted “that is not a political subdivision” in the first sentence; and made minor stylistic changes throughout.

The 2016 amendment added (7) and (8).

The 2017 amendment, effective June 23, 2017, inserted “(2)” in the first sentence of (2); rewrote (7), which read: “From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law”; and deleted (8), which read: “From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.”

Cross References —

Duty of government entity to indemnify and/or defend claim on behalf of employee where such entity has certificate of coverage issued under this section, see §11-46-7.

Reduction of verdicts which, together with costs and fees, exceed $500,000, see §11-46-15.

Survey of political subdivisions that might be interested in a comprehensive plan liability insurance, see §11-46-19.

Hiring of administrator for comprehensive plan of self-insurance and/or policies of liability insurance, see §11-46-19.

Power and duty of Executive Director of Department of Finance and Administration to coordinate and administer liability plans authorized in this section, see §27-104-31.

Liability insurance for community hospitals, see §41-13-11.

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Federal Aspects—

Federal laws pertaining to actions for violations of certain laws and deprivation of civil rights, see 42 USCS §§ 1983-1987.

JUDICIAL DECISIONS

1. In general.

2. Construction with other laws.

3. Waiver for excess liability.

1. In general.

Where plaintiff parent sued defendant school district in state court alleging her child was sexually assaulted at school and obtained a judgment under the Mississippi Tort Claims Act, her later claims in federal court were properly held as barred due to res judicata; while school districts’ sources of funding under Miss. Code Ann. §37-45-21,37-47-1 et seq., Miss. Code Ann. §37-57-1, Miss. Code Ann. §37-59-3, and Miss. Code Ann. §37-151-7 were equally divided between local school districts and the state under Miss. Code Ann. §11-46-7, Miss. Code Ann. §11-46-16(2), and Miss. Code Ann. §11-46-17(2), any judgment against the school district would be paid through the Tort Claims Fund and excess liability insurance, and thus, the school district was not considered an arm of the state entitled to Eleventh Amendment immunity. Black v. N. Panola Sch. Dist., 461 F.3d 584, 2006 U.S. App. LEXIS 21259 (5th Cir. Miss. 2006).

The purchase of insurance by a school district under subsection (4) of this section does not limit the exclusions or exemptions enumerated in §11-46-9. L.W. v. McComb Separate Mun. Sch. Dist., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999), overruled in part, Miss. Transp. Comm'n v. Montgomery, 2011 Miss. LEXIS 609 (Miss. Oct. 20, 2011), overruled in part, Miss. Transp. Comm'n v. Montgomery, 80 So.3d 789, 2012 Miss. LEXIS 96 (Miss. 2012).

The purchase of insurance waives sovereign immunity to extent of the policy. L.W. v. McComb Separate Mun. Sch. Dist., 1999 Miss. LEXIS 128 (Miss. Mar. 31, 1999), op. withdrawn, sub. op., 754 So. 2d 1136, 1999 Miss. LEXIS 273 (Miss. 1999).

Mississippi Municipal Liability Plan of self-insurance, authorized by §11-46-17(5), is not “insurance” within meaning of §83-11-103(c)(i), which defines uninsured motor vehicle to include vehicle to which there is no bodily injury liability insurance. Coleman v. American Mfrs. Mut. Ins. Co., 930 F. Supp. 255, 1996 U.S. Dist. LEXIS 8961 (N.D. Miss. 1996).

2. Construction with other laws.

Defense costs eroded a community hospital’s insurance policy’s coverage limits because (1) the policy so stated, (2) public policy did not bar the provision, as public policy did not bar a defense-within-limits policy, and Miss. Code Ann. §§41-13-11 and11-46-17(3) created no such public policy, and (3) a defense-within-limits clause was not unenforceable for not being placed on the hospital’s board’s minutes. Fed. Ins. Co. v. Singing River Health Sys., 850 F.3d 187, 2017 U.S. App. LEXIS 3742 (5th Cir. Miss. 2017).

The purchase of liability insurance by a governmental entity under this section does not does not limit the exclusions or exemptions enumerated in §11-46-9. Leslie v. City of Biloxi, 758 So. 2d 430, 2000 Miss. LEXIS 87 (Miss. 2000).

3. Waiver for excess liability.

Mississippi Municipality Liability Plan (MMLP) could not be liable to the individuals bringing tort claims for injuries, incurred in an auto accident with a city police officer, of up to the $500,000 policy limits in the city’s policy, where participation in the MMLP was considered to be participation in a risk-sharing pool and was not, under Miss. Code Ann. §11-46-17(4), the same as obtaining liability insurance. Miss. Mun. Liab. Plan v. Jordan, 863 So. 2d 934, 2003 Miss. LEXIS 875 (Miss. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Mississippi Industries for the Blind is state agency and therefore is subject to Tort Claims Act. Williams, Jan. 24, 1994, A.G. Op. #93-0984.

Decision by state agency to discontinue excess insurance is an “administrative call”. Williams, Jan. 24, 1994, A.G. Op. #93-0984.

The District Attorney may use bad check funds to purchase insurance covering his office for liability for such federal law claims not covered by the Tort Claims Fund. Harkey, April 27, 1995, A.G. Op. #95-0130.

Planning and development districts do not constitute political subdivisions for purposes of the Tort Claims Act. Hardy, Nov. 7, 1997, A.G. Op. #97-0701.

Municipalities may insure themselves only for claims for which they are liable; the police and fire protection exemption under Section 11-46-9 specifically bars claims against municipalities and the city of Jackson may not gratuitously provide coverage. Tedder, March 13, 1998, A.G. Op. #98-0133.

A water supply district is required by subsection (2) to participate in a plan of self-insurance or to purchase liability insurance, both as administered by the Tort Claims Board. Tohill, Nov. 19, 1999, A.G. Op. #99-0621.

A water supply district has the authority to purchase excess liability insurance with a deductible per occurrence in the amount of the current statutory limitation of liability. Tohill, Nov. 19, 1999, A.G. Op. #99-0621.

A regional medical center, a public hospital owned by a county, is covered under the Tort Claims Act. Brown, Apr. 26, 2002, A.G. Op. #02-0211.

Members or employees of the Pat Harrison Waterway District acting in the course and scope of their employment in federal actions sounding in tort subject to the current liability cap provided by this section. Matthews, Dec. 6, 2002, A.G. Op. #02-0686.

The Pat Harrison Waterway District may not purchase liability insurance to cover tort claims for amounts under the statutory cap, but may purchase excess liability policies to cover federal actions or other claims sounding in tort that exceed the liability cap. Matthews, Dec. 6, 2002, A.G. Op. #02-0686.

The Northeast Mississippi Solid Waste Management Authority must provide coverage for the Authority and hence the Authority’s Board of Commissioners pursuant to this section. Hatcher, Jan. 23, 2004, A.G. Op. 03-0655.

Existing public liability coverage of the elected officials who are representatives of their particular bodies on the Board of Commissioners does not suffice for public official liability for the Northeast Mississippi Solid Waste Management Authority. The Authority must provide coverage under the Tort Claims Act for the Authority and for those officials as Commissioners. Hatcher, Jan. 23, 2004, A.G. Op. 03-0655.

The Northeast Mississippi Solid Waste Management Authority may not drop the required tort claims coverage for any of its commissioners. Hatcher, Jan. 23, 2004, A.G. Op. 03-0655.

Where an “insurance” pool paid an amount to the claimant, and the claimant accepted that payment, and executed a release or waiver in favor of the city, once such a settlement was accepted, the claimant was barred from making any additional claim for damages. To preserve the right to pursue the full amount claimed, the claimant should have refused the settlement tendered by the pool. Thus, as there remains no further legal obligation, the city cannot now supplement the amount accepted by the claimant from the insurance pool in settlement of the claim. McLaurin, July 16, 2004, A.G. Op. 04-0251.

RESEARCH REFERENCES

ALR.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency. 40 A.L.R.4th 998.

Reviewability before trial of order denying qualified immunity to defendant sued in state court under 42 USCS § 1983. 49 A.L.R.5th 717.

Duty of liability insurer to initiate settlement negotiations. 51 A.L.R.5th 701.

Requirement that multicoverage umbrella insurance policy offer uninsured-or underinsured-motorist coverage equal to liability limits under umbrella provisions. 52 A.L.R.5th 451.

§ 11-46-18. Mississippi Tort Claims Board; membership; payment of expenses; officers; meetings.

  1. There is created a board which shall be known as the Mississippi Tort Claims Board. The board shall consist of seven (7) members as follows:
    1. The Governor, subject to the advice and consent of the Senate, shall appoint one (1) member who shall serve at the will and pleasure of the Governor and who shall serve as chairman of the board.
    2. The Director of the Department of Environmental Quality or a designee.
    3. The Commissioner of Insurance or a designee.
    4. The Director of the Department of Finance and Administration or a designee shall be a member of the board, shall serve as the executive director to the board, and shall be authorized to conduct the administrative affairs of the board.
    5. The Attorney General or a designee.
    6. The Commissioner of Public Safety or a designee.
    7. The State Treasurer or a designee.
  2. The member of the board appointed by the Governor shall receive per diem as provided by Section 25-3-69 and reimbursement of travel expenses as provided in Section 25-3-41 for expenses incurred in carrying out his duties as a member of the Mississippi Tort Claims Board.
  3. The board, by majority vote, shall determine the place and time of its meetings and shall spread the same on its minutes. A majority of the members shall constitute a quorum, and final action of the board shall require the affirmative vote of a majority of those present and voting. The board shall elect a vice chairman who shall preside in the absence or incapacity of the chairman and such other officers as it deems necessary and as established by its rules of order. Extraordinary meetings may be held upon call of the chairman or upon petition of any four (4) members of the board should the chairman refuse to call a meeting. The initial meeting of the board shall convene upon call of the chairman.
  4. The Lieutenant Governor may designate one (1) Senator and the Speaker of the House of Representatives may designate one (1) Representative to attend any meeting of the Tort Claims Board. The appointing authorities may designate alternate members from their respective houses to serve when the regular designees are unable to attend such meetings of the board. Such legislative designees shall have no jurisdiction or vote on any matter within the jurisdiction of the board. For attending meetings of the board, such legislators shall receive per diem and expenses which shall be paid from the contingent expense funds of their respective houses in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem and expenses for attending meetings of the board will be paid while the Legislature is in session. No per diem and expenses will be paid, except for attending meetings of the board, without prior approval of the proper committee in their respective houses.
  5. If a member of the board appoints a designee to attend meetings of the board on the member’s behalf, the member must inform the chairman of the board in writing of the name and contact information of the designee.
  6. The designee of any member of the board is authorized to take all action which the person making the designation is authorized to do under this chapter.

HISTORY: Laws, 1993, ch. 476, § 7; Laws, 1994, ch. 568, § 2; Laws, 2017, ch. 366, § 1, eff from and after July 1, 2017.

Amendment Notes —

The 2017 amendment, in (1), substituted “or a designee” for “shall be a member of the board” in (b), (c), and (e) through (g), and in (d), inserted “or a designee”; and added (5) and (6).

§ 11-46-19. Powers and duties of board.

  1. The board shall have the following powers:
    1. To provide oversight over the Tort Claims Fund;
    2. To approve any award made from the Tort Claims Fund;
    3. To pay all necessary expenses attributable to the operation of the Tort Claims Fund from such fund;
    4. To assign litigated claims against governmental entities other than political subdivisions to competent attorneys unless such governmental entity has a staff attorney who is competent to represent the governmental entity and is approved by the board; the board shall give primary consideration to attorneys practicing in the jurisdiction where the claim arose in assigning cases; attorneys hired to represent a governmental entity other than a political subdivision shall be paid according to the department fee schedule;
    5. To approve all claimants’ attorney fees in claims against the state;
    6. To employ on a full-time basis a staff attorney who shall possess the minimum qualifications required to be a member of The Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of this chapter; the employees in the positions approved by the board shall be hired by the director, shall be employees of the department, and shall be compensated from the Tort Claims Fund;
    7. To contract with one or more reputable insurance consulting firms as may be necessary;
    8. To purchase any policies of liability insurance and to administer any plan of self-insurance or policies of liability insurance required for the protection of the state against claims and suits brought under this chapter;
    9. To expend money from the Tort Claims Fund for the purchase of any policies of liability insurance and the payment of any award or settlement of a claim against the state under the provisions of this chapter or of a claim against any school district, junior college or community college district, or state agency, arising from the operation of school buses or other vehicles, under the provisions of Section 37-41-42;
    10. To cancel, modify or replace any policy or policies of liability insurance procured by the board;
    11. To issue certificates of coverage to governmental entities, including any political subdivision participating in any plan of liability protection approved by the board;
    12. To review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions if such plan is intended to serve as security for risks of claims and suits against them for which immunity has been waived under this chapter;
    13. To administer disposition of claims against the Tort Claims Fund;
    14. To withhold issuance of any warrants payable from funds of a participating state entity should such entity fail to make required contributions to the Tort Claims Fund in the time and manner prescribed by the board;
    15. To develop a comprehensive statewide list of attorneys who are qualified to represent the state and any employee thereof named as a defendant in a claim brought under this chapter against the state or such employee;
    16. To develop a schedule of fees for paying attorneys defending claims against the state or an employee thereof;
    17. To adopt and promulgate such reasonable rules and regulations and to do and perform all such acts as are necessary to carry out its powers and duties under this chapter;
    18. To establish and assess premiums to be paid by governmental entities required to participate in the Tort Claims Fund;
    19. To contract with a third-party administrator to process claims against the state under this chapter;
    20. To annually submit its budget request to the Legislature as a state agency;
    21. To dispose of salvage obtained in settlement or payment of any claim at fair market value by such means and upon such terms as the board may think best; and
    22. [Repealed]
  2. Policies of liability insurance purchased for the protection of governmental entities against claims and suits brought under this chapter shall be purchased pursuant to the competitive bidding procedures set forth in Section 31-7-13.
  3. The department shall have the following powers and duties:
    1. To annually report to the Legislature concerning each comprehensive plan of liability protection established pursuant to Section 11-46-17(2). Such report shall include a comprehensive analysis of the cost of the plan, a breakdown of the cost to participating state entities, and such other information as the department may deem necessary.
    2. To provide the board with any staff and meeting facilities as may be necessary to carry out the duties of the board as provided in this chapter.
    3. To submit the board’s budget request for the initial year of operation of the board in order to authorize expenditures for the 1993-1994 fiscal year and for the appropriation of such general funds as shall be required for the commencement of its activities.

HISTORY: Laws, 1984, ch. 495, § 11; reenacted and amended, Laws, 1985, ch. 474, § 10; Laws, 1987, ch. 483, § 10; Laws, 1988, ch. 442, § 7; Laws, 1988, ch. 479, § 5; Laws, 1993, ch. 476, § 8; Laws, 1995, ch. 568, § 2; Laws, 1996, ch. 428, § 2; Laws, 2003, ch. 560, § 5; reenacted and amended, Laws, 2005, ch. 539, § 5; Laws, 2006, ch. 567, § 6, eff from and after passage (approved Apr. 24, 2006).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a publishing error in the introductory language and former second version of this section. The words “Until July 1, 2005, this section shall read as follows:” was deleted and also the second tier of the section was deleted. The Joint Committee ratified the correction at its July 8, 2004, meeting.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in a statutory reference at the end of (1)(v). The Section “83-48-6(i)” was changed to “83-48-5(6)(i).” The Joint Committee ratified the correction at its May 31, 2006, meeting.

Editor’s Notes —

Section 37-41-42 referred to in (1)(i) was repealed by Laws of 1996, ch. 428, § 1, eff June 30, 1997.

Subsection (1)(v), which authorized the board to administer the Medical Malpractice Insurance Availability Plan, was repealed by its own terms effective July 1, 2008.

Laws of 1987, ch. 483, § 50, provides as follows:

“SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.”

Amendment Notes —

The 2003 amendment added (1)(v); and made minor stylistic changes.

The 2005 amendment reenacted and amended the section by adding a repealer in (1)(v).

The 2006 amendment substituted “the transfer of the plan’s assets and liabilities as provided in Section 83-48-5(6)(i)” for “July 1, 2007” at the end of (1)(v).

Cross References —

Medical Malpractice Insurance Availability Act, see §§83-48-1 et seq.

RESEARCH REFERENCES

ALR.

Duty of liability insurer to initiate settlement negotiations. 51 A.L.R.5th 701.

§ 11-46-20. Tort Claims Board; regulation of liability coverage of governmental entities; annual review of insurance plans; other powers; fees.

  1. The Tort Claims Board shall be charged with the responsibility to regulate all liability coverage of governmental entities required to have certificates of coverage under this chapter which elect to provide the same through a public entity group or individual self-insurance program. This regulation shall be accomplished through an initial approval as provided in Section 11-46-17 and by ongoing or annual review. Each self-insurance program shall annually submit to the Tort Claims Board the following items within ninety (90) days from the end of the group year:
    1. An audited financial statement;
    2. An actuarial valuation;
    3. Contracts with third-party administrators (if any);
    4. Excess insurance policies;
    5. A list of members and premiums due from and collected from each member; and
    6. Other data as may be required by the Tort Claims Board.
  2. Areas of regulation under this section shall include, but not be limited to, the following:
    1. Financial solvency;
    2. Rating plans, rates and rating basis;
    3. Assessment plans of public entity groups;
    4. Coverages offered and excluded;
    5. Deductibles and deductible credits;
    6. Proper purchase of excess insurance or reinsurance; and
    7. Review of losses, reserves and expenses annually.
  3. Individual self-insurers and group public entity self-insurers must provide the data requested for the purposes of this section in order to receive continuing approval of the Tort Claims Board and issuance of annual certificates of coverage to the governmental entities involved.
  4. The Tort Claims Board is authorized to assess and charge appropriate fees for the costs of regulation, as determined by the board, to the individual self-insurers and group public entity self-insurers being regulated.
  5. The Tort Claims Board is empowered to:
    1. Issue cease and desist orders;
    2. Require rate increases or decreases;
    3. Require assessments of members of group public entity self-insurers in such amounts as are authorized and required by the board;
    4. Require changes in excess insurance or reinsurance; or
    5. Take such other actions as deemed necessary by the board to carry out the provisions of this chapter.

HISTORY: Laws, 1994, ch. 568, § 1, eff from and after passage (approved April 7, 1994).

RESEARCH REFERENCES

ALR.

Requirement that multicoverage umbrella insurance policy offer uninsured-or underinsured-motorist coverage equal to liability limits under umbrella provisions. 52 A.L.R.5th 451.

§ 11-46-21. Repealed.

Repealed by Laws of 1996, ch. 428, § 3, eff from and after passage (approved March 25, 1996).

[Laws, 1984, ch. 495, § 12; Laws, 1985, ch. 474, § 11; Laws, 1986, ch. 438, § 5; Laws, 1987, ch. 483, § 11; Laws, 1988, ch. 442, § 8; Laws, 1989, ch. 537, § 7; Laws, 1990, ch. 518, § 8; Laws, 1992, ch. 491 § 9; Laws, 1993, ch. 476, § 9; Laws, 1994, ch. 617, § 2]

Editor’s Notes —

Former §11-46-21 was entitled: Transfer of funds from Accident Contingent Fund and Tort Claims Fund to Accident Contingent Tort Fund.

§ 11-46-23. Provisions of chapter independent and severable.

If any provision or clause of Chapter 46, Title 11, Mississippi Code of 1972, or application thereof is held invalid or unenforceable for any reason, such holding shall have no effect on any other provisions or applications of Chapter 46, Title 11, Mississippi Code of 1972, and to this end the provisions of Chapter 46, Title 11, Mississippi Code of 1972, are declared to be severable.

HISTORY: Laws, 1993, ch. 476, § 11, eff from and after passage (approved April 1, 1993).

Chapter 47. Lis Pendens

§ 11-47-1. Record to be kept by chancery clerk.

The clerk of the chancery court shall keep in his office, as a public record, a suitable book, to be called the “Lis Pendens Record.”

HISTORY: Codes 1892, § 2782; 1906, § 3147; Hemingway’s 1917, § 2498; 1930, § 2324; 1942, § 754.

Cross References —

Fees for chancery clerk, see §§25-7-9,25-7-13.

Complaints and orders filed in slum clearance proceedings, see §43-35-109.

Soil conservation contracts, see §69-27-207.

Notice by unsecured creditors to subject decedent’s realty to liability, see §91-7-91.

RESEARCH REFERENCES

ALR.

Duration of operation of lis pendens as dependent upon diligent prosecution of suit. 8 A.L.R.2d 986.

Propriety of filing of lis pendens in action affecting leasehold interest. 67 A.L.R.3d 747.

Lis pendens suit to compel stock transfer. 48 A.L.R.4th 731.

§ 11-47-3. Notice of suit affecting real estate recorded.

When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled, in the county in which the real estate is situated, such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the lis pendens record, and note on it, and in the record, the hour and day of filing and recording.

HISTORY: Codes, 1892, § 2783; 1906, § 3148; Hemingway’s 1917, § 2499; 1930, § 2325; 1942, § 755.

Cross References —

Filing lis pendens notice in eminent domain proceedings, see §11-27-7.

Lien of laborers, materialmen, architects, engineers, etc. see §§85-7-131 et seq.

JUDICIAL DECISIONS

1. In general.

2. Notice in general.

3. —Description of realty.

4. Encumbrancers and purchasers pending suit.

5. Rights and liabilities of purchasers pending suit.

1. In general.

Filing of lis pendens notice was privileged communication and therefore not actionable for slander of title, where chancellor expressly found that persons alleging easement rights in underground conduit that drained their land had right to assert such interest. Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112, 1987 Miss. LEXIS 2629 (Miss. 1987).

An action to set aside a deed on certain property on the basis of fraud under Code §11-5-75 was not barred by a former action to place a lis pendens notice on the same property pursuant to Code §11-47-3, where not only were these two causes of action grounded in different statutes but they also involved entirely different classes of litigants, inasmuch as the lis pendens statute was enacted for those who claimed to rightfully own an interest in the property and the statute permitting an attack on fraudulent conveyances was devised for the protection of creditors who had no specific interest in the land. Dunaway v. W.H. Hopper & Associates, Inc., 422 So. 2d 749, 1982 Miss. LEXIS 2314 (Miss. 1982).

In an action by the purchaser of a house for specific performance or a money decree arising out of the failure of the corporate defendant to complete the house and premises as agreed, the chancellor erred in his final decree in failing to expunge a lis pendens notice placed on property owned by the corporation and located beside that owned by the plaintiffs where the next-door property was not involved in the money decree against the corporate defendant. W. H. Hopper & Associates, Inc. v. Dunaway, 396 So. 2d 43, 1981 Miss. LEXIS 1982 (Miss. 1981).

Notice of pendency of foreclosure suit will be imputed to assignee of judgment against mortgagor before Code 1892 became operative, without lis pendens notice. Smith v. Munger, 93 Miss. 627, 47 So. 676, 1908 Miss. LEXIS 160 (Miss. 1908).

Pendency of suit to foreclose mortgage is constructive notice to all parties. Alabama & V. R. Co. v. Thomas, 86 Miss. 27, 38 So. 770, 1905 Miss. LEXIS 81 (Miss. 1905).

Code 1892, § 503, pertaining to creditors’ bills to vacate fraudulent conveyances and providing for a lien in favor of creditor upon the filing of a bill except as to bona fide purchasers before service of process on defendant, is not affected by the chapter on lis pendens. Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502, 1904 Miss. LEXIS 134 (Miss. 1904).

Prior to this act, mere pendency of suit concerning land was noticed to a purchaser of the timber thereon of the rights of complainant. Alliance Trust Co. v. Nettleton Hardwood Co., 74 Miss. 584, 21 So. 396, 1896 Miss. LEXIS 176 (Miss. 1896).

Doctrine of lis pendens does not apply so far as to defeat title acquired under the statute of limitations. Nelson v. Ratliff, 72 Miss. 656, 18 So. 487, 1895 Miss. LEXIS 69 (Miss. 1895).

2. Notice in general.

In an action alleging breach of contract, breach of fiduciary duty, unjust enrichment, tortious breach of contract, and requesting imposition of a constructive trust and equitable lien upon property owned by the defendants, the court removed a lis pendens, but allowed the plaintiffs’ claims to proceed to trial, since (1) the currently existing status quo caused the defendants irreparable injury and threatened them with the necessity of filing for bankruptcy, and (2) removing the lis pendens would cause little injury to the plaintiffs and would not disserve the public interest. Marett v. Scott, 2000 U.S. Dist. LEXIS 5356 (N.D. Miss. Apr. 7, 2000).

The filing of a notice of lis pendens in an action before the recordation of a prior deed is effective to make a judgment recovered against the grantor after such recordation a lien on the property conveyed. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

Filing of lis pendens notice giving names of parties to suit and description of land, with statement that by suit it is sought to fix and enforce lien against land in order to effect sale thereof and application of proceeds of sale to payment of complainant’s claim, is insufficient to create lien on land. Ryals v. Douglas, 205 Miss. 695, 39 So. 2d 311, 1949 Miss. LEXIS 461 (Miss. 1949).

Lis pendens notice is not a restraining process and damages are not allowable on affirmance of decree dismissing complaint for specific performance, with direction to note disposition in lis pendens record. Bancroft v. Martin, 144 Miss. 384, 109 So. 859, 1926 Miss. LEXIS 367 (Miss. 1926).

Where lis pendens notice is filed, judgment obtained thereafter in the suit takes effect as of the date of filing notice. Bank of Tupelo v. Motley, 127 Miss. 674, 90 So. 438, 1921 Miss. LEXIS 269 (Miss. 1921).

Where bill alleged that defendant vendor owned land or an interest therein, and that defendant buyer had property belonging to vendor, dismissal of bill as to defendant buyer left it still pending as to the other defendant, and lis pendens notice on land sold should not be cancelled. Slattery v. P. L. Renoudet Lumber Co., 120 Miss. 621, 82 So. 332, 1919 Miss. LEXIS 114 (Miss. 1919).

3. —Description of realty.

Where lis pendens notice misdescribes the land, there is not constructive notice. McDaniel v. Latham, 143 Miss. 672, 109 So. 671, 1926 Miss. LEXIS 307 (Miss. 1926).

4. Encumbrancers and purchasers pending suit.

Wife’s right to alimony constitutes such an interest in her husband’s real estate as that she may take advantage of the lis pendens statute to protect such interest as a vested right to maintenance therefrom. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

Assignee of mortgagee held entitled to priority over judgment lien of materialman filing petition against mortgagor to enforce lien against house prior to execution of trust deed, where materialman failed to file lis pendens notice and there was no written contract on file, in absence of knowledge by mortgagee of proceedings. Swift & Co. v. Everett, 171 Miss. 410, 157 So. 476, 1934 Miss. LEXIS 241 (Miss. 1934).

Where wife obtains a decree for alimony, declared a lien on land, she acquires a lien superior to a deed of trust executed by the husband alone after filing of lis pendens notice. W. H. Gallaspy Sons Co. v. Massey, 99 Miss. 208, 54 So. 805, 1911 Miss. LEXIS 191 (Miss. 1911).

Lis pendens notice must be given in mechanic’s lien proceedings against realty to affect bona fide purchasers without notice. McKenzie v. Fellows, 97 Miss. 31, 52 So. 628, 1910 Miss. LEXIS 253 (Miss. 1910).

5. Rights and liabilities of purchasers pending suit.

When a construction money lender foreclosed its deed of trust on a shopping center and purchased the property at the trustee’s sale, it took title pendente lite, subject to the contingency that laborers’ and materialmen’s liens were valid, where the laborers and materialmen had filed their claims more than six months before the trustee’s sale was advertised, and where the materialmen and laborers brought suit to enforce their liens one day before the sale and filed notice of the suit on the lis pendens record; as between the lender and the landowners, who filed suit to enforce their liens and filed a lis pendens notice two days before the trustee’s sale, the lender took title subject to the outcome of the landowners’ suit and could not defeat their claim by foreclosing its deed of trust. Guaranty Mortg. Co. v. Seitz, 367 So. 2d 438, 1979 Miss. LEXIS 2202 (Miss. 1979).

Where lis pendens notice is filed, purchaser of the land takes it subject only to the right of plaintiff to have it sold pursuant to judgment. Glattli v. Bradford, 105 Miss. 573, 62 So. 643, 1913 Miss. LEXIS 236 (Miss. 1913).

Bona fide purchaser from a non-resident defendant without actual notice of suit, before completion of publication and mailing of process, will be protected in his title, though lis pendens notice was filed. Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502, 1904 Miss. LEXIS 134 (Miss. 1904).

In a suit to enforce a lien upon machinery, the lien was effectual from the time of bringing suit, and dismissal on demurrer did not affect it prior to taking appeal, and one who purchased the property under a deed of trust given by defendant, between the time of the dismissal and plaintiff’s appeal was a purchaser pendente lite and purchased subject to the lien. Smith & Vaile Co. v. Burns, 72 Miss. 966, 18 So. 483, 1895 Miss. LEXIS 67 (Miss. 1895).

RESEARCH REFERENCES

ALR.

Claim barred by limitation as subject to setoff, counterclaim, recoupment, cross bill, or cross action. 1 A.L.R.2d 630.

Propriety of filing of lis pendens in action affecting leasehold interest. 67 A.L.R.3d 747.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay. 49 A.L.R.4th 242.

Lis pendens as applicable to suit for separation or dissolution of marriage. 65 A.L.R.4th 522.

Am. Jur.

51 Am. Jur. 2d (Rev), Lis Pendens §§ 1-10, 20, 46-50.

Notice of lis pendens, 17 Am. Jur. Pl & Pr Forms (Rev), Lis Pendens, Forms 3-7.

18 Am. Jur. Pl & Pr Forms (Rev), Mortgages, Form 152.1 ( Notice of Lis Pendens – Foreclosure).

CJS.

54 C.J.S., Lis Pendens §§ 2-11.

§ 11-47-5. Notice by officer levying on real estate.

When the sheriff, United States marshal, or other officer, shall levy upon real estate by virtue of any process, unless it be in execution upon a judgment which is duly enrolled in the county where the real estate is situated, he shall file with the clerk of the chancery court of each county in which the real estate, or any part thereof, is situated, a notice of the levy, containing the names of the parties to the proceedings, the kind of process, and a description of the real estate levied on. The clerk shall file, record and note upon the notice and record, as required in Section 11-47-3.

HISTORY: Codes, 1892, § 2784; 1906, § 3149; Hemingway’s 1917, § 2500; 1930, § 2326; 1942, § 756.

Cross References —

Liability of officer for failing to file notice, see §11-47-13.

Writs of execution or attachment on land, see §13-3-123.

JUDICIAL DECISIONS

1. In general.

In attachment suit in chancery against land of nonresident, no lien is created until mandatory provisions of Code 1942, §§ 1904, 2731, and this section [Code 1942, § 756] 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 that 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).

§ 11-47-7. Clerk to index the record.

The clerk, upon filing and recording each notice, shall index the same, both directly and indirectly, under the name of each party, each plaintiff or complainant, against each defendant, and each defendant at the suit of each plaintiff or complainant.

HISTORY: Codes, 1892, § 2785; 1906, § 3150; Hemingway’s 1917, § 2501; 1930, § 2327; 1942, § 757.

Cross References —

Indexing of instruments generally, see §§89-5-25,89-5-33,89-5-35.

JUDICIAL DECISIONS

1. In general.

A lien on property is not obtained by the mere filing of a lis pendens notice. The legal function of lis pendens is to give notice to the world of an alleged claim or lien in the property; the notice itself does not constitute an independent basis for imposition of a lien. Aldridge v. Aldridge, 527 So. 2d 96, 1988 Miss. LEXIS 263 (Miss. 1988).

The purchasers of property were unaffected by any lien to which the property may have been subject, even though a lis pendens notice was filed prior to purchase of the property, where the Chancery Clerk failed to immediately record notice of the lis pendens. Aldridge v. Aldridge, 527 So. 2d 96, 1988 Miss. LEXIS 263 (Miss. 1988).

§ 11-47-9. Effect of failure to enter notice.

If a person beginning any such suit, by declaration, bill, or cross-complaint affecting real estate, or if an officer levying any process upon real estate, shall fail to have the required notice entered in the lis pendens record, such suit or levy shall not affect the rights of bona fide purchasers or incumbrancers of such real estate, unless they have actual notice of the suit or levy.

HISTORY: Codes, 1892, § 2786; 1906, § 3151; Hemingway’s 1917, § 2502; 1930, § 2328; 1942, § 758.

JUDICIAL DECISIONS

1. In general.

The purchasers of property were unaffected by any lien to which the property may have been subject, even though a lis pendens notice was filed prior to purchase of the property, where the Chancery Clerk failed to immediately record notice of the lis pendens. Aldridge v. Aldridge, 527 So. 2d 96, 1988 Miss. LEXIS 263 (Miss. 1988).

Although the better practice is to join both co-beneficiaries of a deed of trust as parties defendant in an action involving their interests, it is not reversible error to join only one beneficiary when both have actual notice of the pending suit. Owens v. State, 192 So. 2d 258, 1966 Miss. LEXIS 1235 (Miss. 1966).

The bona fide purchasers protected by this section [Code 1942, § 758] are those who become such after the beginning of the suit or service of the writ. Martin v. Adams Mercantile Co., 203 Miss. 177, 33 So. 2d 633, 1948 Miss. LEXIS 247 (Miss. 1948).

Where lis pendens notice misdescribes the land, there is not constructive notice. McDaniel v. Latham, 143 Miss. 672, 109 So. 671, 1926 Miss. LEXIS 307 (Miss. 1926).

Lis pendens notice must be given in mechanic’s lien proceedings against realty to affect bona fide purchasers without notice. McKenzie v. Fellows, 97 Miss. 31, 52 So. 628, 1910 Miss. LEXIS 253 (Miss. 1910).

RESEARCH REFERENCES

ALR.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay. 49 A.L.R.4th 242.

Am. Jur.

51 Am. Jur. 2d(Rev), Lis Pendens § 49-50.

CJS.

54 C.J.S., Lis Pendens § 18.

§ 11-47-11. Result of proceeding entered.

Where the proceedings in or as to the suit or levy, notice of which has been entered in the lis pendens record, shall be terminated, whether on the merits or not, the court wherein the same were pending shall direct the clerk who has the record to make such entry therein as it shall prescribe, to give notice of the result of the proceedings and of the devolution of the real estate; and the clerk shall at once, on presentation thereof, file and record the prescribed entry and note the date of filing and recording on the record.

HISTORY: Codes, 1892, § 2787; 1906, § 3152; Hemingway’s 1917, § 2503; 1930, § 2329; 1942, § 759.

§ 11-47-13. Liability of a clerk, sheriff, or other officer.

If any clerk fail to perform any of the duties herein required of him, he shall be liable on his official bond to any party injured for all damages he may have sustained. If any sheriff, marshal, or other officer, fail to file the notice provided for in this chapter, upon the levy by him of any process on real estate, he shall be liable on his bond for all damages resulting therefrom.

HISTORY: Codes, 1892, § 2788; 1906, § 3153; Hemingway’s 1917, § 2504; 1930, § 2330; 1942, § 760.

Cross References —

Notice by officer levying on real estate, see §11-47-5.

§ 11-47-15. Form of the docket.

The lis pendens docket shall be ruled, and have printed at the top of the pages, or opposite page, the following headings for the columns, and the entries shall correspond with them, viz.: Names of plaintiffs; names of defendants; kind of suit or writ; when suit instituted or writ levied; in, or from what court; nature of the suit or writ; description of the land involved or levied on; date of filing and recording lis pendens notice; result of the suit or levy; and remarks.

HISTORY: Codes, 1892, § 2789; 1906, § 3154; Hemingway’s 1917, § 2505; 1930, § 2331; 1942, § 761.

Chapter 49. Rights and Duties of Attorneys, Generally

§ 11-49-1. Attorney to state residence of plaintiff.

Any attorney whose name is subscribed to or indorsed on any declaration or bill or petition in chancery, shall, on demand in writing, made by or on behalf of the defendant, declare forthwith, in writing, whether the suit has been brought by him, or with his authority or privity, and also the place of abode of the plaintiff; and if such attorney shall state that the suit was not brought by him, or with his authority or privity, or shall refuse to declare the place of abode of the plaintiff, then no further proceedings shall be taken in the action without leave of the court.

HISTORY: Codes, 1880, § 1545; 1892, § 217; 1906, § 224; Hemingway’s 1917, § 201; 1930, § 3704; 1942, § 8676.

Cross References —

General rules of pleading, practice, and procedure in county courts, see §11-9-1.

Procedures to discipline attorneys and to determine capacity to practice law, see §§73-3-301 et seq.

Rules governing the professional conduct of attorneys, see Miss. Rules of Professional Conduct 1.1 et seq.

§ 11-49-3. Proceedings for money collected.

Every attorney or counselor at law receiving money for his client, and failing or refusing to pay the same when demanded, may be proceeded against in a summary way, by motion before the circuit court of the county where such attorney or counselor usually resides, or where he may be found, or before the court in which the money was collected, in the same manner that sheriffs are liable to be proceeded against for money collected on execution, five days’ notice of such motion being given. In addition to the principal and legal interest, damages at ten per centum on the amount thereof shall be awarded. In case the failure to pay over said money shall appear to have been wilful and without reasonable excuse, the court shall fine and imprison such attorney or counselor as for a contempt and strike his name from the roll and revoke his license, or may suspend his right to practice until the money shall be paid over.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (9), art. 11; 1857, ch. 9, art. 10; 1871, § 2253; 1880, § 2405; 1892, § 218; 1906, § 225; Hemingway’s 1917, § 202; 1930, § 3705; 1942, § 8677.

Cross References —

Power of circuit court to hear and determine all motions against attorneys for money collected or received and not paid over on demand to party entitled thereto, see §9-7-89.

Giving of notice in cases where motions are made against officers for neglect of official duties, see §13-3-85.

Liability of sheriff for failing to pay over money collected on execution or attachment, see §19-25-45.

JUDICIAL DECISIONS

1. In general.

Summary remedy by motion against an attorney, authorized by this section [Code 1942, § 8677], can only be maintained by the client. Sloan v. Johnson, 14 Miss. (6 S. & M.) 47 (1850); McCreary v. Hoopes, 25 Miss. 428, 1853 Miss. LEXIS 9 (Miss. 1853); Brown v. Pool, 127 Miss. 488, 90 So. 179, 1921 Miss. LEXIS 248 (Miss. 1921).

Pleading of client which, while bearing many of the earmarks of a declaration, was found to be a substantial compliance with this section [Code 1942, § 8677], as a summary motion against attorney to pay over money collected for his client, was held to require an answer. Spivey v. Rodgers, 114 Miss. 639, 75 So. 444, 1917 Miss. LEXIS 73 (Miss. 1917).

An attorney at law is liable for any breach of duty under his contract of employment; such liability attaches immediately upon the breach, and the statute of limitation begins to run from that time. Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885, 1896 Miss. LEXIS 131 (Miss. 1896).

A decision in an attorney’s favor because the motion was an improper remedy, does not bar a suit against him on the same case. Coopwood v. Baldwin, 25 Miss. 129, 1852 Miss. LEXIS 159 (Miss. 1852).

It is no defense to the motion that the attorney has been notified by others, claiming the fund, not to pay; and the attorney’s right of set-off is good only to the extent of his lien for his fees in that particular case. Dunn v. Vannerson, 8 Miss. 579, 1843 Miss. LEXIS 125 (Miss. 1843).

Notice must be given the attorney. Ex parte Heyfron, 8 Miss. 127, 1843 Miss. LEXIS 65 (Miss. 1843).

The statute gives the remedy, by motion, only where the attorney fails or refuses to pay over money actually collected. The statute must be strictly construed. Lombard v. Whiting & Lewis, 1 Miss. 229, 1826 Miss. LEXIS 6 (Miss. 1826); Banks v. Cage, 2 Miss. 293, 1836 Miss. LEXIS 9 (Miss. 1836); Sloan v. Johnson, 14 Miss. (6 S. & M.) 47 (1850).

RESEARCH REFERENCES

ALR.

Power of court to order restitution to wronged client in disciplinary proceeding against attorney. 75 A.L.R.3d 307.

Am. Jur.

7 Am. Jur. 2d, Attorneys at Law §§ 188- 191.

Complaint, petition, or declaration-For conversion of funds belonging to client-Money collected by attorney, 2 Am. Jur. Pl & Pr Forms (Rev), Attorneys at Law, Form 271.

CJS.

7 C.J.S., Attorney and Client § 313.

§ 11-49-5. Attorney not to have pay as a witness.

An attorney or counselor at law shall not be allowed any compensation as a witness in any cause in which he shall be concerned as attorney or counsel.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (15); 1857, ch. 9, art. 9; 1871, § 2252; 1880, § 2406; 1892, § 219; 1906, § 226; Hemingway’s 1917, § 203; 1930, § 3706; 1942, § 8678.

Cross References —

Amount of witness fees generally, see §25-7-47.

RESEARCH REFERENCES

Am. Jur.

81 Am. Jur. 2d (Rev), Witnesses § 68, 70.

CJS.

98 C.J.S., Witnesses § 117, 118, 138, 194.

§ 11-49-7. Right to inspect papers.

Every attorney or counselor at law, practicing in any court in this state, shall be allowed, at all reasonable times, to inspect the papers and records relating to any suit in such court in which he may be concerned as attorney or counsel, without being compelled to take copies thereof. A clerk of any court may permit an attorney to take out of the office the papers in which he is interested, under such regulations as the court or the law may prescribe.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (16); 1857, ch. 9, art. 8; 1871, § 2251; 1880, § 2407; 1892, § 220; 1906, § 227; Hemingway’s 1917, § 204; 1930, § 3707; 1942, § 8679.

Cross References —

Withdrawal of exhibits, maps, or other items of evidence belonging to party or witness before expiration of appeal period or determination of suit, see §9-13-29.

Court order making available to opposite party copies of books, papers and other documents relating to merits of action or proceeding or of defense thereto, see §11-1-51.

Furnishing of copy of indictment and list of special venire to persons indicted for capital crimes, see §99-15-27.

RESEARCH REFERENCES

ALR.

Applicability of attorney-client privilege to communications relating to drafting of documents. 55 A.L.R.3d 1322.

Am. Jur.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

§ 11-49-9. Limitation of number to argue cause.

A court shall not permit more than two attorneys to argue on one side, unless good cause be shown therefor.

HISTORY: Codes, Hutchinson’s 1848, ch. 26, art. 3 (11); 1857, ch. 9, art. 11; 1871, § 2254; 1880, § 2408; 1892, § 221; 1906, § 228; Hemingway’s 1917, § 205; 1930, § 3708; 1942, § 8680.

Cross References —

Limitation on number of counsel to be heard in criminal cases, see §99-17-11.

Oral arguments in supreme court, see Miss. R. App. P. 34.

RESEARCH REFERENCES

ALR.

Prejudicial effect, of trial court’s denial, or equivalent, of counsel’s right to argue case. 38 A.L.R.2d 1396.

Am. Jur.

75 Am. Jur. 2d (Rev), Trial § 104.

CJS.

88 C.J.S., Trial § 255.

§ 11-49-11. Notice to attorney as effectual as if to his client.

Any notice required in the progress of a suit or action, in any court of this state, shall be as valid and effectual when served on the attorney or solicitor of the party in that cause as if served on the party himself.

HISTORY: Codes 1871, § 2255; 1880, § 2409; 1892, § 222; 1906, § 229; Hemingway’s 1917, § 206; 1930, § 3709; 1942, § 8681.

Cross References —

Service of notices in legal proceedings, see §13-3-83.

JUDICIAL DECISIONS

1. In general.

A three-day notice to counsel of a motion to correct the record of an appealed conviction is an adequate compliance with due process. Polk v. State, 247 Miss. 734, 156 So. 2d 592, 1963 Miss. LEXIS 351 (Miss. 1963).

This section [Code 1942, § 8681] has reference to notice to an attorney during the progress of a trial until that particular litigation has been tried and judgment or decree rendered which is final until further order of the court upon proper service of process upon the litigant who is to be affected by such subsequent litigation. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

A letter, relied on as process in husband’s action for modification of the provisions of a divorce decree, largely awarding custody of the children to the wife, served both upon the wife’s attorney of record at the time of the former decree, and an attorney subsequently employed by the wife to negotiate with opposing counsel as to whether some different arrangement might be agreed upon as to the custody of the children, which did not advise wife’s attorneys what modifications would be sought but merely notified that the husband would insist upon the wife obeying the terms of the former decree, did not constitute legal process upon the wife, who could not be found by the sheriff, so that a judgment awarding complete custody of the children to the father was void. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

RESEARCH REFERENCES

Am. Jur.

7 Am. Jur. 2d (Rev), Attorneys at Law § 139.

2 Am. Jur. Pl & Pr Forms (Rev), Attorneys At Law, Forms 1 et seq.

CJS.

7 C.J.S., Attorney and Client §§ 286, 287.

Chapter 51. Appeals

§ 11-51-1. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 2308; 1892, § 31; 1906, § 32; Hemingway’s 1917, § 7; 1930, § 12; 1942, § 1146]

Editor’s Notes —

Former §11-51-1 related to appeals to the supreme court; writs of error abolished.

§ 11-51-3. Appeals to Supreme Court.

An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 34; 1857, ch. 62, art. 103; 1871, § 410; 1880, § 2309; 1892, § 32; 1906, § 33; Hemingway’s 1917, § 8; 1930, § 13; 1942, § 1147; Laws, 1991, ch. 573, § 79, eff from and after July 1, 1991.

Editor’s Notes —

This section is modified or supplanted by Rule 8, Mississippi Rules of Appellate Procedure, as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Appellate jurisdiction of the supreme court, see §9-3-9.

Jurisdiction of supreme court to try issues of fact on appeal, see §9-3-37.

Appeal from circuit court orders in arbitration proceedings based on controversies arising from construction contracts or related agreements, see §11-15-141.

Right of appeal in suits to confirm state land patents, see §11-17-11.

Right of appeal from county court, see §11-51-79.

Right of appeal in classification of sixteenth section school lands, see §29-3-37.

Right of appeal in school-reopening proceeding, see §37-65-129.

Right of appeal under Animal and Poultry Byproducts Disposal Law, see §§41-51-27,41-51-29.

Right of appeal under Urban Flood and Drainage Control Law, see §51-35-313.

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

Rules of practice and procedure before appellate courts, see Miss. R. App. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Right to appeal.

3. —Effect of death of party.

4. —Estoppel.

5. Cross appeal.

6. Appeal bond.

7. Persons entitled to appeal.

8. Time for appeal.

9. Effect of appeal.

10. Decisions appealable in general.

11. —Omissions in record, effect of.

12. Finality of determination.

13. —Nature and character of final determination.

14. —Final judgments and decrees.

15. Matters presented for review.

16. Dismissal of appeal.

17. Statutory damages.

18. Limitations.

1. In general.

On appeal the failure of the appellee to file a brief is tantamount to a confession of error, and will be accepted as such, and the judgment of the court below will be reversed, since an answer to the appellant’s brief cannot be made without the court doing that which the appellee should have done, that is brief the appellee’s side of the case. Charles F. Hayes & Associates, Inc. v. Blue, 233 So. 2d 127, 1970 Miss. LEXIS 1652 (Miss. 1970).

Supersedeas in civil cases under this section [Code 1942, § 1147] is a matter of right only where there is a money decree or judgment, or where there is a decree or judgment for the recovery or against the retention of specific property, or where the sale of or delivery of possession of real estate is directed. Walton v. Tupelo, 241 Miss. 894, 133 So. 2d 531, 1961 Miss. LEXIS 418 (Miss. 1961).

Statutes allowing a “person” to appeal give the right to one directly interested although not a party; those allowing a “party” to appeal limit the right to the original parties. Ridgway v. Scott, 237 Miss. 400, 114 So. 2d 844, 1959 Miss. LEXIS 484 (Miss. 1959).

Where a chancery court denies materialmen the right to intervene in a suit to recover contract price for erection of storage bins, the supreme court will affirm the decree on the ground that it was impossible to grant effective relief, where the materialmen appealed from the decree without supersedeas and did not appeal from the final decree in the main suit and the owner paid a judgment to the beneficiaries under a decree in the main suit. Orgill Bros. & Co. v. Roddy, 227 Miss. 291, 86 So. 2d 37, 1956 Miss. LEXIS 687 (Miss. 1956).

Without a decree, no appeal will lie from chancery court to Supreme Court, and when there is no decree of any kind signed or filed in proper office, and no application for appeal, motion to dismiss appeal must be sustained although record discloses admission by parties that interlocutory decree had been entered by chancery court. In re Graham's Estate, 208 Miss. 857, 45 So. 2d 726, 1950 Miss. LEXIS 305 (Miss. 1950).

In suit to quiet title, decree of chancellor that covenant in deed prohibiting use of property for any type of textile industry did not prohibit use of described property as place to manufacture garments or other similar articles of wearing apparel, given on conflicting evidence equally balanced, or nearly so, will be affirmed on appeal to Supreme Court. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Although statute (Laws, 1944, ch 208, Code 1942 §§ 3825-01 et seq.), creating civil service commissions in certain municipalities, provides for appeal only to circuit court by discharged employees, appeal from circuit court to Supreme Court is authorized by this section [Code 1942, § 1147]. McLain v. State, 198 Miss. 831, 24 So. 2d 15, 1945 Miss. LEXIS 256 (Miss. 1945).

An appeal is not a matter of right. Jones v. Cashin, 133 Miss. 585, 98 So. 98, 1923 Miss. LEXIS 170 (Miss. 1923). but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

This section [Code 1942, § 1147] does not apply to appeals from justices of the peace. It applies only to appeals from circuit and chancery courts. Neblett v. State, 75 Miss. 105, 21 So. 799, 1897 Miss. LEXIS 100 (Miss. 1897).

2. Right to appeal.

An indigent civil litigant may not appeal to the Supreme Court and proceed in forma pauperis. Nelson v. Bank of Mississippi, 498 So. 2d 365, 1986 Miss. LEXIS 2754 (Miss. 1986).

Where there is no order of the Chancery Court allowing an interlocutory appeal the Supreme Court has no jurisdiction to entertain an appeal until a final decree has been entered with reference to the release or discharge of a petitioner who intervened in the action. Hendrick v. Bridges, 211 So. 2d 544, 1968 Miss. LEXIS 1272 (Miss. 1968).

Where all orders prior to the final order with reference to the custody of children were consented to by the parties to a divorce action, neither of the parties could appeal from the orders to which they had consented. Anderson v. Watkins, 208 So. 2d 573, 1968 Miss. LEXIS 1412 (Miss. 1968).

An appeal cannot be taken from a consent decree or judgment of a trial court by one of the parties to the consent decree or judgment. Potts v. Bryant, 194 So. 2d 495, 1967 Miss. LEXIS 1412 (Miss. 1967).

Appeals are not a matter of right except as given by statute. State ex rel. Patterson v. Autry, 236 Miss. 316, 110 So. 2d 377 (1959), overruled on other grounds, Brown v. Water Valley, 319 So. 2d 649 (Miss. 1975), and see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Husband had the right to appeal from a final decree directing him to make payments to his divorced wife in specified amounts as permanent alimony and for support of the parties’ minor child, and his failure to pay in full the monthly instalments of alimony order to be paid, and which had matured while the appeal was pending, did not warrant a dismissal of the appeal. Lowry v. Lowry, 229 Miss. 376, 90 So. 2d 852, 1956 Miss. LEXIS 617 (Miss. 1956).

Right of appeal from final decree is absolute, and no court order is necessary for that purpose. Thompson v. Wilson, 172 Miss. 766, 160 So. 388, 161 So. 153, 1935 Miss. LEXIS 146 (Miss. 1935).

It is unnecessary with respect to the right of appeal to except to the final judgment. Wills v. Howie Bros., 109 Miss. 568, 68 So. 780, 1915 Miss. LEXIS 194 (Miss. 1915).

The trial court was without power to limit the right of appeal to a period of time less than that prescribed by statute. Wills v. Howie Bros., 109 Miss. 568, 68 So. 780, 1915 Miss. LEXIS 194 (Miss. 1915).

If decree appealed from is final and not interlocutory, leave to appeal is unnecessary. Yazoo & M. V. R. Co. v. James, 108 Miss. 656, 67 So. 152, 1914 Miss. LEXIS 255 (Miss. 1914).

3. —Effect of death of party.

In suit by State for use of another, death of use plaintiff after final judgment, but before appeal was taken, held not to abate right of appeal. State use of Russell v. McRae, 169 Miss. 169, 152 So. 826, 1934 Miss. LEXIS 26 (Miss. 1934).

4. —Estoppel.

Defendant may pay monetary judgment and afterwards appeal. Currie v. Bennett, 111 Miss. 228, 71 So. 324, 1916 Miss. LEXIS 274 (Miss. 1916).

Where a creditor of a decedent’s estate was a party to a suit by which the title to land was adjudged to have been in the decedent at the time of her death and to the decree which ordered a sale thereof to pay debts, he was estopped to appeal therefrom after sale made, and, with his consent, confirmed, and he had received payment of the debt due him. Parsons v. Rutherford, 84 Miss. 70, 36 So. 187, 1904 Miss. LEXIS 15 (Miss. 1904).

5. Cross appeal.

No cross-appeal lies from judgment by which appellee obtains in trial court amount demanded by his declaration. Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

Attorney for party has right to take cross-appeal as to amount allowed for attorney’s fees, he having filed in case proper assignment by party covering his fees. Walsh Const. Co. v. Davis, 204 Miss. 509, 37 So. 2d 757, 1948 Miss. LEXIS 385 (Miss. 1948).

Cross appeal may be taken by execution of bond therefor under the statute regulating appeals; but bond does not have to be given where the necessary record was brought to the Supreme Court by direct appeal. Crawley v. Ivy, 149 Miss. 764, 116 So. 90, 1928 Miss. LEXIS 88 (Miss. 1928).

No cross-appeal is necessary to obtain judgment in Supreme Court for fees fixed by statute when amount approved by Supreme Court is less than amount awarded appellee in trial court. Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, 1923 Miss. LEXIS 153 (Miss. 1923).

In absence of cross-appeal and appellee’s declaration failing to demand full amount sheriff could have successfully sued for as fees for serving overseers’ commissions, Supreme Court cannot increase judgment, but will affirm judgment recovered. Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, 1923 Miss. LEXIS 153 (Miss. 1923).

One not defendant to motion against sheriff for failure to return execution cannot cross appeal to review questions arising on original judgment. Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, 1923 Miss. LEXIS 153 (Miss. 1923).

6. Appeal bond.

On policeman’s appeal from affirmance by circuit court of order of municipal civil service commission approving policeman’s discharge, the obligee on the appeal bond should have been the municipality instead of the civil service commission. McLain v. State, 198 Miss. 831, 24 So. 2d 15, 1945 Miss. LEXIS 256 (Miss. 1945).

Defect in policeman’s appeal bond, on appeal to the Supreme Court from affirmance by circuit court of order of municipal civil service commission approving policeman’s discharge, in naming the civil service commission as the obligee rather than the city, was cured by Code 1942, § 1673, which provides that a bond executed in a legal proceeding shall inure to the person to whom it is designed by law as security irrespective of to whom it is made payable. McLain v. State, 198 Miss. 831, 24 So. 2d 15, 1945 Miss. LEXIS 256 (Miss. 1945).

An appeal bond not stricken and the appeal dismissed because names of some of principals inserted without authority. Avent v. Markette, 109 Miss. 835, 69 So. 705, 1915 Miss. LEXIS 231 (Miss. 1915).

Where on motion to dismiss appeal counsel admitted defect in appeal bond that it was signed only by one surety and requested leave to file a new bond, such request will be granted. Wills v. Howie Bros., 109 Miss. 568, 68 So. 780, 1915 Miss. LEXIS 194 (Miss. 1915).

7. Persons entitled to appeal.

Wife’s motion to dismiss a daughter as an appellant from an appeal was granted because the daughter was never a party to the matter at the trial level and only purportedly became a party once the matter was appealed. Chester v. Labasse (In re Estate of Labasse), 242 So.3d 167, 2017 Miss. App. LEXIS 540 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 70, 2018 Miss. LEXIS 192 (Miss. 2018).

Because the decedent’s adult children did not appeal the chancellor’s decision to void the warranty deeds conveying the subject property from the decedent to the decedent’s children, they no longer possessed standing, pursuant to Miss. Code Ann. §11-51-3 and Miss. R. App. P. 3, to appeal the chancellor’s finding that the children’s siblings obtained title to the property at issue by adverse possession. Posey v. Pope, 130 So.3d 1183, 2014 Miss. App. LEXIS 40 (Miss. Ct. App. 2014).

Person seeking leave to gain amicus curiae status in Supreme Court should assert basis for request in petition and attach to petition proposed written brief in succinct and concise statement, but never to exceed page limitation allowed party to suit under Mississippi Supreme Court Rule 7; in addition, one seeking to become amicus must assert: (1) interest in some other pending case involving similar questions; (2) inadequacy of counsel for party or insufficiency brief; (3) facts, circumstances or laws in matters before court that may otherwise escape court’s attention; or (4) substantial legitimate interest that will likely be affected by outcome of case and which interest will not adequately be protected by those already parties to case. Taylor v. Roberts, 475 So. 2d 150, 1985 Miss. LEXIS 2208 (Miss. 1985).

Where the employer’s petition for citation of contempt for violation of a temporary injunction charged that the labor union and its officials had failed and refused to direct the union members to cease participating in a work stoppage and to return to work, the charge was one of civil contempt and the employer was entitled to appeal from a decree of the chancery court which found the defendants were not guilty. Masonite Corp. v. International Woodworkers of America, 206 So. 2d 171, 1967 Miss. LEXIS 1242 (Miss. 1967).

An appeal may not be taken from the appointment of a guardian for an incompetent for the purpose of bringing a suit to set aside his conveyance, by the persons against whom such suit is to be brought. Ridgway v. Scott, 237 Miss. 400, 114 So. 2d 844, 1959 Miss. LEXIS 484 (Miss. 1959).

Husband had the right to appeal from a final decree directing him to make payments to his divorced wife for permanent alimony and for support of the parties’ minor child, and his failure to pay in full the monthly instalments of alimony ordered to be paid, and which had matured while the appeal was pending, did not warrant a dismissal of the appeal. Lowry v. Lowry, 229 Miss. 376, 90 So. 2d 852, 1956 Miss. LEXIS 617 (Miss. 1956).

Where a landlord brought an action against a tenant and others who were claiming to have an interest in lease for rent owing and possession of premises, and where a judgment was rendered against the tenant and others and their sureties, even though the tenant did not appeal the others in interest with the tenant and their sureties could prosecute an appeal. Treuting v. Guice, 224 Miss. 794, 80 So. 2d 829, 1955 Miss. LEXIS 542 (Miss. 1955).

Attorney for party has right to take cross-appeal as to amount allowed for attorney’s fees, he having filed in case proper assignment by party covering his fees. Walsh Const. Co. v. Davis, 204 Miss. 509, 37 So. 2d 757, 1948 Miss. LEXIS 385 (Miss. 1948).

Persons who are not parties to proceedings are not entitled to an appeal therefrom. Hunter v. Stanford, 198 Miss. 299, 22 So. 2d 166, 1945 Miss. LEXIS 196 (Miss. 1945).

Guardian cannot appeal from an order which he petitioned the court to make and which, therefore, was by his consent. Hunter v. Stanford, 198 Miss. 299, 22 So. 2d 166, 1945 Miss. LEXIS 196 (Miss. 1945).

Although nonresident defendants, against whom a decree pro confesso was taken upon their failure to answer by publication and summons, have right to apply to the court rendering the decree for a rehearing, they also have the right to treat the decree as final and to appeal therefrom in order to avoid danger that the property might be sold to a purchaser in good faith pursuant to the decree. Henderson v. Odom, 198 Miss. 208, 22 So. 2d 159, 1945 Miss. LEXIS 186 (Miss. 1945).

Where the judgment of the court complained of in a personal injury action was entered on the minutes of the court on September 8th, 1939, the court adjourned on September 22d, 1939, an appeal bond filed and approved on March 21, 1940, more than six months after the entry of judgment but less than six months after the adjournment of the court, was not filed within time, the six months’ limitation on the time within which to appeal from the judgment beginning on the day after it was rendered. Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642, 1940 Miss. LEXIS 111 (Miss. 1940).

A county having no right to institute a suit for mandamus in a manner affecting public interest had no such interest or right as would enable it to appeal from the order of the court below dismissing such proceeding. Hancock County v. State Highway Com., 188 Miss. 158, 193 So. 808, 1940 Miss. LEXIS 15 (Miss. 1940).

Where tax collector brought suit against taxpayer for taxes owed to taxing districts, including county, and cause proceeded to final decree from which no appeal was taken by tax collector, county was not entitled to appeal as party to final decree. Gulley v. Denkmann Lumber Co., 177 Miss. 164, 170 So. 151, 1936 Miss. LEXIS 235 (Miss. 1936).

Only those who are actually parties to the suit or who are privies or personal representatives may appeal. Farmers & Merchants Bank v. Rushing, 175 Miss. 826, 167 So. 784, 1936 Miss. LEXIS 71 (Miss. 1936).

In suit by superintendent of banks, in charge of liquidation of bank, for collection of debt allegedly due the bank, superintendent held entitled to appeal from adverse decree without bond. Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446, 1935 Miss. LEXIS 28 (Miss. 1935).

An amicus curiae has no right to appeal from an adverse judgment. Jones v. Cashin, 133 Miss. 585, 98 So. 98, 1923 Miss. LEXIS 170 (Miss. 1923). but see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Attorney-general may appeal from a decree in suit to collect taxes and damages and sell property of the railroad therefor. State ex rel. Roberson v. Columbus & G. R. Co., 129 Miss. 882, 93 So. 362, 1922 Miss. LEXIS 98 (Miss. 1922).

Assignee of a chose in action may appeal to the Supreme Court in assignor’s name, from a judgment in an action begun and prosecuted in the court below in the assignor’s name. Ridgeway v. Jones, 122 Miss. 624, 84 So. 692, 1920 Miss. LEXIS 463 (Miss. 1920).

Under Laws 1918 ch 238, the attorney-general may bring an appeal, though the judgments below were rendered prior to the passage of the statute. Board of Sup'rs v. Guaranty Loan, Trust & Banking Co., 118 Miss. 600, 79 So. 802, 1918 Miss. LEXIS 102 (Miss. 1918).

Laws 1912 ch 196 and Laws 1914 ch 270 do not give a drainage district a right to appeal from an order of a chancellor directing payment of damages for land appropriated. Bogue Hasty Drainage Dist. v. Napanee Plantation Co., 118 Miss. 493, 78 So. 709, 1918 Miss. LEXIS 40 (Miss. 1918).

Defendant may pay monetary judgment and afterwards appeal. Currie v. Bennett, 111 Miss. 228, 71 So. 324, 1916 Miss. LEXIS 274 (Miss. 1916).

When one or more of the parties aggrieved by the decree may appeal, stated. Avent v. Markette, 109 Miss. 835, 69 So. 705, 1915 Miss. LEXIS 231 (Miss. 1915).

County entitled to appeal from judgment of circuit court allowing a claim of $40.00 against the county, the appeal being first from the Board of Supervisors. Marshall County v. Rivers, 88 Miss. 45, 40 So. 1007, 1906 Miss. LEXIS 153 (Miss. 1906).

Where judgment in suit by a creditor is rendered against one surety and in favor of another, the surety held liable may appeal and contest the rightfulness of his cosurety’s discharge. Ruff v. Montgomery, 83 Miss. 185, 36 So. 67, 1903 Miss. LEXIS 31 (Miss. 1903).

Section 2 Act of 1894, amending § 2330 Code of 1892 (§ 2571 Code of 1906), does not prevent an appeal by an insurance company against which a judgment has been rendered. Supreme Lodge, K. H. v. Fletcher, 78 Miss. 377, 28 So. 872, 1900 Miss. LEXIS 113 (Miss. 1900), limited, Nehi Bottling Co. v. Jefferson, 226 Miss. 586, 84 So. 2d 684, 1956 Miss. LEXIS 435 (Miss. 1956).

8. Time for appeal.

Appeal [April 3, 1985] from March 4, 1985 order denying motion to reconsider November 21, 1984 order, which was filed on [April 3, 1985], was timely. Belhaven Improv. Asso. v. Jackson, 507 So. 2d 41, 1987 Miss. LEXIS 2428 (Miss. 1987).

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, for an appeal under §11-51-3 time runs from the entry of the decree ordering the sale rather than from the order confirming the sale, therefore, the appeal was untimely since it was not brought within statutory period. First Mississippi Nat'l Bank v. S & K Enterprises, Inc., 460 So. 2d 839, 1984 Miss. LEXIS 2008 (Miss. 1984).

Appeal may be prosecuted from judgment or decree final in its nature, immediately after its rendition and before the end of the term of the court at which it is rendered. Byrne, Vance & Co. v. Jeffries, 38 Miss. 533, 1860 Miss. LEXIS 23 (Miss. 1860).

9. Effect of appeal.

Lower court without power to proceed further with trial until appeal is disposed of. Jennings v. Shapira, 131 Miss. 596, 95 So. 305, 1923 Miss. LEXIS 198 (Miss. 1923).

Supreme Court, after obtaining jurisdiction on appeal, will not allow any disposition of the cause by the nominal parties, where it is reasonably probable that the equitable interest of third persons will be prejudiced. Sivley v. Sivley, 96 Miss. 134, 50 So. 552, 1909 Miss. LEXIS 28 (Miss. 1909).

10. Decisions appealable in general.

Appeal may be taken from an order denying a motion to compel arbitration. Tupelo Auto Sales, Ltd. v. Scott, 844 So. 2d 1167, 2003 Miss. LEXIS 212 (Miss. 2003).

A person convicted of criminal or civil contempt may appeal to the Supreme Court pursuant to §11-51-11 and §11-51-12. Also, a plaintiff in a civil contempt case may appeal by authority of §11-51-3, which authorizes appeals from final judgments in civil cases. An appeal from a dismissal of a petition for criminal contempt does not lie under §99-35-103(b); there is no statute authorizing an appeal by the petitioner when a trial court has dismissed a petition for criminal contempt. Common Cause of Mississippi v. Smith, 548 So. 2d 412, 1989 Miss. LEXIS 362 (Miss. 1989).

A judgment of nonsuit is a “final judgment” within the meaning of that term as contemplated by this section [Code 1942, § 1147], and is, therefore, a judgment from which an appeal can be prosecuted to the Supreme Court. Hattiesburg Butane Gas Co. v. Griffin, 206 So. 2d 845, 1968 Miss. LEXIS 1590 (Miss. 1968).

The plaintiff in a civil contempt proceeding has a right to appeal under this section [Code 1942, § 1147] which provides generally for appeals in civil cases. Masonite Corp. v. International Woodworkers of America, 206 So. 2d 171, 1967 Miss. LEXIS 1242 (Miss. 1967).

A decree entered by consent of the parties is not appealable. Legg v. Legg, 251 Miss. 12, 168 So. 2d 58, 1964 Miss. LEXIS 322 (Miss. 1964).

Since the enactment of L. of 1956, ch. 230 (Code 1942, § 1536), an appeal lies from an order granting a new trial on the ground that the damages awarded are excessive. Strickland v. Mississippi State Highway Com., 240 Miss. 7, 124 So. 2d 696, 1960 Miss. LEXIS 481 (Miss. 1960).

Order granting plaintiff’s motion for nonsuit requested after defendant had moved for directed verdict and court had indicated an intention to grant defendant’s motion but before the peremptory instruction was given, is not appealable. Johns-Manville Products Corp. v. McClure, 46 So. 2d 538 (Miss. 1950).

Order of dismissal as to resident defendant, by reason of which nonresident defendant was able to and did procure a removal to federal court, was appealable, since trial court was thereby prevented from proceeding to develop the entire case and to make a final decree as to all parties. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Order removing case to Federal court at request of nonresident defendant, did not deprive Supreme Court of jurisdiction to entertain an appeal from order of dismissal as to a resident defendant made prior to the removal order, as the rule applied that transfer of a suit from state to Federal court does not vacate what was done in the state court prior to removal. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Appeal may be taken from judgment on agreed state of facts without agreement as to judgment to be rendered. Thompson v. Hill, 152 Miss. 388, 118 So. 895, 1928 Miss. LEXIS 231 (Miss. 1928).

Supreme Court under no duty to consider appeal unless assignment of error and brief pointing out the matters relied upon are filed according to rules of the court. Henson v. State, 143 Miss. 199, 108 So. 719, 1926 Miss. LEXIS 255 (Miss. 1926).

Appeal lies from a judgment establishing lost record. Johnson v. Richey Land Imprv. & Mfg. Co., 126 Miss. 240, 88 So. 634, 1921 Miss. LEXIS 30 (Miss. 1921).

A judgment rendered on peremptory instruction granted at the request of both parties pursuant to an agreement between them is a “judgment by confession,” and not appealable. Grand Lodge, C. K. P. v. Barlow, 108 Miss. 663, 67 So. 152, 1914 Miss. LEXIS 256 (Miss. 1914).

An appeal will lie from a judgment rendered in the circuit court in a suit commenced therein though it does not exceed $50.00. Liles v. Cawthorn, 78 Miss. 559, 29 So. 834, 1900 Miss. LEXIS 178 (Miss. 1900).

Where the jury find a defendant not guilty on the ground of insanity at the time and certify that he is still insane and dangerous, the verdict is not reviewable on appeal. Caffey v. State, 78 Miss. 645, 29 So. 396, 1900 Miss. LEXIS 146 (Miss. 1900).

When appeal is prosecuted from decision of the Board of Supervisors to the circuit court, and there decided, the party aggrieved may appeal to the Supreme Court; the statute is “from any final judgment,” etc. Crump v. Board of Supervisors, 52 Miss. 107, 1876 Miss. LEXIS 174 (Miss. 1876).

11. —Omissions in record, effect of.

Appeal dismissed where the record contains no final judgment from which the appeal could have been prosecuted. Nelson v. Henderson, 16 So. 911 (Miss. 1895); J. T. Gabbart & Co. v. Bauer, 38 So. 548 (Miss. 1905); Perkins v. Thompson, 127 Miss. 864, 90 So. 710, 1921 Miss. LEXIS 289 (Miss. 1921).

Where transcript on appeal fails to show that final judgment was rendered by the circuit court the appeal will be dismissed. Brown v. State, 95 Miss. 670, 49 So. 146, 1909 Miss. LEXIS 260 (Miss. 1909).

12. Finality of determination.

Because a circuit court’s ruling on an inmate’s motion to show cause was a final judgment, the inmate’s appeal from that final judgment was appealable to supreme court under its constitutional appellate jurisdiction and assignable by the supreme court to the court of appeals. Pryer v. State, 139 So.3d 713, 2014 Miss. LEXIS 272 (Miss. 2014).

Orders denying and subsequently granting a motion to recuse the trial judge in a legal malpractice case were in no way final as to the issues in the case; as such, the appellate court had no jurisdiction to review the orders under Miss. Code Ann. §11-51-3. Turner v. Everett, 13 So.3d 311, 2008 Miss. App. LEXIS 743 (Miss. Ct. App. 2008), cert. denied, 14 So.3d 731, 2009 Miss. LEXIS 356 (Miss. 2009).

Pursuant to Miss. Code Ann. §11-51-3, the appellate court had jurisdiction to hear the father’s appeal of the denial of his motion for modification of custody as it was an appeal from a final order. Quadrini v. Spradley, 964 So. 2d 576, 2007 Miss. App. LEXIS 543 (Miss. Ct. App. 2007).

Dismissal of a motion to require that the executrix of an estate post bond was an interlocutory order, not a final decree, and was not appealable under this section. In re Estate of Rosamond, 326 So. 2d 465, 1976 Miss. LEXIS 1738 (Miss. 1976).

An order sustaining a demurrer of one of plaintiffs to cross-bill of one of defendants, although final as to the party involved, is not a final order within the meaning of §11-51-3, since to be a final decree appealable under that section, decree must be final as to all parties and all issues. American Empire Life Ins. Co. v. Skil--Craft Builders, Inc., 291 So. 2d 735, 1974 Miss. LEXIS 1744 (Miss. 1974).

Ordinarily rights and liabilities of several parties are so connected and interwoven that appeals by piecemeal should not be allowed; moreover, fragmented appeals result in needless delay and expense, and interfere with rights of other litigants to proceed with litigation. American Empire Life Ins. Co. v. Skil--Craft Builders, Inc., 291 So. 2d 735, 1974 Miss. LEXIS 1744 (Miss. 1974).

A judgment is not final which settles a case as to a part only of the defendants, and an order dismissing the suit as to one of several defendants, all of whom are charged to be jointly and severally liable, is not a final judgment from which an appeal will lie, while the case remains undisposed of in the lower court as to the other defendants. Eubanks v. Aero Mayflower Transit Co., 253 Miss. 159, 175 So. 2d 169, 1965 Miss. LEXIS 978 (Miss. 1965).

A decree confirming a sale on foreclosure is not a final decree and so not appealable under this section [Code 1942, § 1147]. Worthy v. Graham, 246 Miss. 358, 149 So. 2d 469, 1963 Miss. LEXIS 449 (Miss. 1963).

No appeal is allowable from circuit court judgment unless judgment is in all respects final, and order ruling on demurrer, which goes no further than to rule on demurrer, is no final judgment. Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

Appeals to Supreme Court from interlocutory orders or decrees apply only to cases in chancery courts. Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

No appeal is allowable from circuit court judgment unless judgment is in all respects a final judgment. State ex rel. Rice v. Large, 171 Miss. 330, 157 So. 694, 1934 Miss. LEXIS 253 (Miss. 1934).

13. —Nature and character of final determination.

State supreme court was without jurisdiction to entertain an appeal under Miss. Code Ann. §11-51-3 because an order setting aside a prior order of reinstatement did not adjudicate the case on its merits, and left a pending motion to be dealt with by the assigned judge. Lafontaine v. Holliday, 110 So.3d 785, 2013 Miss. LEXIS 146 (Miss. 2013).

It was not error for chancellor to amend oral pronouncement of alimony increase from $500 per month to $250 per month because oral pronouncement does not constitute final judgment. Banks v. Banks, 511 So. 2d 933, 1987 Miss. LEXIS 2694 (Miss. 1987).

To be a final decree appealable under §11-51-3, the decree must be final as to all parties and all issues. American Empire Life Ins. Co. v. Skil--Craft Builders, Inc., 291 So. 2d 735, 1974 Miss. LEXIS 1744 (Miss. 1974).

Although an appeal may be taken to the Supreme Court from any final judgment of the circuit court in a civil case under the provisions of Code 1942, § 1147, there is no interlocutory appeal from a judgment of the circuit court, except from an order for a new trial based on the excessiveness or inadequacy of damages; and a judgment of the circuit court is not final which does not settle the cause as to all of the parties or does not finally dispose of all the issues presented. State Tax Com. v. Clinton, 267 So. 2d 312, 1972 Miss. LEXIS 1415 (Miss. 1972).

Where a decree set aside a prior decree admitting to probate in solemn form an alleged lost holographic will, but did not dismiss petition for probate of will, the decree was not a final decree from which an appeal could successfully be taken. In re Hollensbee's Estate, 218 Miss. 700, 67 So. 2d 275, 1953 Miss. LEXIS 590 (Miss. 1953).

Order of circuit court from which appeal was taken to effect that demurrer to petition was heard and considered and it is ordered that demurrer be sustained and, petitioners praying appeal to Supreme Court, it is ordered that same be granted, is not final judgment and not appealable. Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

While a judgment which adjudicates everything material to the determination of the cause, and which, when executed according to its terms, will give all the relief which could be afforded, is final, a necessary qualification of this rule is that, if a motion for the setting aside of a judgment is filed before the end of the term of the court at which it was rendered, the finality of the judgment is thereby suspended and the limitation on the time for an appeal begins when, but not until, the motion is disposed of. Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642, 1940 Miss. LEXIS 111 (Miss. 1940).

Judgment lacks finality putting statute of limitations repsecting appeals into operation until final disposition of seasonable motion for new trial or other proper motion challenging it. Moore v. Montgomery Ward & Co., 171 Miss. 420, 156 So. 875, 1934 Miss. LEXIS 204 (Miss.), aff'd, Moore v. Montgomery-Ward & Co., 158 So. 148 (Miss. 1934).

While motion for new trial is unnecessary to obtain review of judgment in Supreme Court, unless made on grounds which would set aside or modify judgment and could not otherwise be considered by trial judge, complaining party has right to make motion and judgment is not final as respects appeal until trial court disposes of motion, if seasonably made. Moore v. Montgomery Ward & Co., 171 Miss. 420, 156 So. 875, 1934 Miss. LEXIS 204 (Miss.), aff'd, Moore v. Montgomery-Ward & Co., 158 So. 148 (Miss. 1934).

Judgment to be final must adjudicate merits of the controversy. Bank of Courtland v. Long Creek Drainage Dist., 133 Miss. 531, 97 So. 881, 1923 Miss. LEXIS 161 (Miss. 1923); Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

Decree adjudicating everything material, and which when executed, will give all the relief that could be afforded, is final. Humphreys v. Stafford, 71 Miss. 135, 13 So. 865, 1893 Miss. LEXIS 136 (Miss. 1893); Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642, 1940 Miss. LEXIS 111 (Miss. 1940).

14. —Final judgments and decrees.

Because the chancellor retained jurisdiction to supervise the reunification process and to revisit the case in six months for further review, its order and opinion did not constitute a final, appealable judgment, and thus, the order was, not appropriate for consideration on direct appeal; the order left open for consideration in the chancery court the issues of custody and visitation. Wigington v. McCalop, 191 So.3d 124, 2016 Miss. LEXIS 192 (Miss. 2016).

Chancellor’s order that found father in contempt for failing to pay child support but did not determine the amount of the arrearage or the amount of future child support the father would be obligated to pay was not a final order and could not be considered on appeal. Maurer v. Boyd, 111 So.3d 690, 2013 Miss. App. LEXIS 171 (Miss. Ct. App. 2013).

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, the denial of a Miss. Code Ann. §11-51-3 (Supp. 1993), the denial of a Miss. R. Civ. P. 60(b) motion is a final judgment that is reviewable. Clark v. Clark, 43 So.3d 496, 2010 Miss. App. LEXIS 28 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 467 (Miss. 2010).

Where the trial court’s order simply compelled arbitration, but did not dismiss claims or end litigation on the merits, it had to be treated as interlocutory and not as final; thus, the Mississippi Supreme Court did not have jurisdiction to review it. Banks v. City Fin. Co., 825 So. 2d 642, 2002 Miss. LEXIS 280 (Miss. 2002), overruled in part, Sawyers v. Herrin-Gear Chevrolet Co., 26 So.3d 1026, 2010 Miss. LEXIS 16 (Miss. 2010).

There was no final judgment where the appellant sought review of an order of the county board of supervisors calling for a special election as an election had yet to be held and the board had declined to act unilaterally on the appellant’s petition. Miss. Waste of Hancock County, Inc. v. Bd. of Supervisors, 818 So. 2d 326, 2001 Miss. LEXIS 43 (Miss. 2001).

This section [Code 1942, § 1147] does not authorize an appeal from an order or a judgment vacating a writ of garnishment and dismissing the suit as to a garnishee where the garnishment is issued as a part of an attachment writ in a suit which is still pending in the trial court at the time the appeal is allowed. Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 199 So. 270, 1940 Miss. LEXIS 189 (Miss. 1940). But see De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The Supreme Court was authorized to treat a circuit court’s denial of a criminal defendant’s motion to dismiss the indictment against him on double jeopardy grounds as a “final judgment” in a civil action under §11-51-3, which authorizes an appeal from a final judgment, and §9-3-9, which gives the Supreme Court jurisdiction of an appeal from any final judgment in the circuit court, since the double jeopardy claim went beyond the defendant’s right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore denial of the claim was final and justified immediate determination. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A Chancery Court ruling entitled “Court Opinion,” which stated that it was the “final order,” acted to finally terminate litigation in the trial court for purposes of appeal such that no further act by the court was necessary even though no separate “final judgment” was entered. Adoption of Karenina v. Presley, 526 So. 2d 518, 1988 Miss. LEXIS 244 (Miss. 1988).

Order overruling motion to reconsider is final judgment for purposes of appeal. Belhaven Improv. Asso. v. Jackson, 507 So. 2d 41, 1987 Miss. LEXIS 2428 (Miss. 1987).

Rule, that order dismissing cause of action as to all defendants served with process is final even though no order has been entered as to defendant who has not been served, has not been changed by adoption of Mississippi Rules of Civil Procedure. Stanley v. Allstate Ins. Co., 465 So. 2d 1023, 1985 Miss. LEXIS 1943 (Miss. 1985).

In a tort action based on an alleged defect in a bridge that was brought against a county board of supervisors and other named defendants, the trial court’s order sustaining demurrers filed by each of the defendants, except one who was not served with process and who filed no pleadings, was a final appealable judgment as to all the parties legally before the lower court; the mere naming of a person in a declaration and the issuance of process without service thereof did not make the remaining named defendant a party to the action for purposes of the statute governing appeals from final judgments or decrees. State use of Moak v. Moore, 373 So. 2d 1011, 1979 Miss. LEXIS 2287 (Miss. 1979).

In an action on an open account in which the defendant’s plea in bar was sustained by the county court and the case dismissed, the order of the circuit court reversing the county court, holding that the plea in bar was without merit and setting the case on its docket for trial was not a final judgment from which an appeal to the Supreme Court would lie. Southern Saw & Mower Distributors, Inc. v. Dolmar North American Corp., 317 So. 2d 400, 1975 Miss. LEXIS 1750 (Miss. 1975).

Order of the circuit court requiring the presence of the court reporter to transcribe the proceedings of the grand jury was a final order appealable by the state, as all issues raised by the appellee’s motion upon which the order was based were concluded and no further proceedings were to be had that could affect them. State v. Burrill, 312 So. 2d 1, 1975 Miss. LEXIS 1629 (Miss. 1975).

An order sustaining a demurrer is not final for purposes of appeal where leave to amend is granted, unless there is a formal judgment of dismissal by the trial judge on or after the expiration of the period to amend. Farned v. Aetna Casualty & Surety Co., 263 So. 2d 790, 1972 Miss. LEXIS 1350 (Miss. 1972).

Where the circuit court sustained an insurer’s demurrer to the declaration of the insured seeking recovery under uninsured motorist coverage, and no leave to amend was granted, the judgment became final at the end of the court term and an appeal could lie therefrom. Farned v. Aetna Casualty & Surety Co., 263 So. 2d 790, 1972 Miss. LEXIS 1350 (Miss. 1972).

Order granting new trial in the circuit court is not a final order as required by this section [Code 1942, § 1147], and hence is not appealable. Street v. Lokey, 209 Miss. 412, 47 So. 2d 816, 1950 Miss. LEXIS 405 (Miss. 1950).

Order granting plaintiff’s motion for nonsuit requested after defendant had moved for directed verdict and court had indicated an intention to grant defendant’s motion but before the peremptory instruction was given, is not appealable. Johns-Manville Products Corp. v. McClure, 46 So. 2d 538 (Miss. 1950).

After motion for new trial is filed, judgment finally disposing of case, prior to which no appeal to Supreme Court will lie, is judgment overruling motion for new trial. Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So. 2d 916, 1949 Miss. LEXIS 443 (Miss. 1949).

Motion for new trial suspends final judgment as final judgment until motion is overruled, but it does not operate to revoke notice to court reporter to transcribe notes of evidence which was given according to law and at proper time, and motion to strike stenographer’s transcript on ground notice was revoked should be overruled. Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So. 2d 916, 1949 Miss. LEXIS 443 (Miss. 1949).

Action by judge in vacation in denying writ of prohibition was not such a final order as may be appealable. Holmes v. Board of Supervisors, 199 Miss. 363, 24 So. 2d 867, 1946 Miss. LEXIS 204 (Miss. 1946).

When a decree dismisses a bill as to one party and it is not contemplated that any further proceedings are to be taken against him, it is final as to that party, although other parties remain against whom further proceedings are to be taken, but, generally, there must be a final decree as to all the parties before an appeal will lie, and the statute limiting the time for appeal does not begin to run until final judgment as to all parties. Mid South Paving Co. v. State Highway Com., 197 Miss. 751, 21 So. 2d 646, 1945 Miss. LEXIS 309 (Miss. 1945).

Where permission granted to corporate receiver to file bill of complaint was revoked and bill of complaint was dismissed, dismissal of defendant’s cross bill, though without prejudice, was a final decree within the meaning of this section [Code 1942, § 1147], and appealable. Federal Credit Co. v. Newman, 196 Miss. 463, 16 So. 2d 153, 1944 Miss. LEXIS 215 (Miss. 1944).

No final judgment valid in law was entered in the circuit court where the presiding judge failed to sign the minutes on or before the last day of the term and, accordingly, under this section [Code 1942, § 1147] the supreme court had no jurisdiction over an appeal therefrom except to determine upon the record before it that there was no final judgment, and to enter an order vacating the supposed judgment upon the record of the case. Jackson v. Gordon, 194 Miss. 268, 11 So. 2d 901, 1943 Miss. LEXIS 49 (Miss. 1943), but see, De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Under statutes governing appeals, order sustaining demurrer to replication in part and overruling it in part was not “final,” and hence not appealable. Covington v. Ross, 180 Miss. 789, 178 So. 474, 1938 Miss. LEXIS 35 (Miss. 1938).

Dismissal of a case without prejudice held “final judgment” within this section [Code 1942, § 1147]. Solomon v. Continental Baking Co., 174 Miss. 890, 165 So. 607, 166 So. 376, 1936 Miss. LEXIS 215 (Miss. 1936).

In quo warranto proceeding, order ruling on demurrer, and which went no further than simply to rule on demurrer, was not appealable “final judgment.” State ex rel. Rice v. Large, 171 Miss. 330, 157 So. 694, 1934 Miss. LEXIS 253 (Miss. 1934).

Refusal to grant either writ of error coram nobis or supersedeas by judge in vacation held not “judgment” from which appeal lies. Carraway v. State, 163 Miss. 639, 141 So. 342, 1932 Miss. LEXIS 79 (Miss. 1932).

Decree ordering sale of land to pay debts was final decree as regards appeal, and precluded the necessity of compliance with the requirements of the statute relating to interlocutory decrees. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Interlocutory decree in chancery court, sustaining demurrer to bill and transferring cause to circuit court was not appealable. Warner v. Hogin, 148 Miss. 562, 114 So. 347, 1927 Miss. LEXIS 39 (Miss. 1927).

Judgment of circuit court setting aside judgment by default rendered at a former term and reinstating cause on the docket of court for trial, was not a “final judgment,” and was not appealable. American Cotton Oil Co. v. La Valle House, 148 Miss. 259, 114 So. 321, 1927 Miss. LEXIS 22 (Miss. 1927).

Order substituting another for complainant held appealable. Miller v. Hay, 143 Miss. 467, 106 So. 818, 1926 Miss. LEXIS 281 (Miss. 1926).

Decree of court of equity is final, which dismisses bill as to certain persons and claims, when no further hearing or proceeding is contemplated as to such claims or persons, though the decree is not final as to other claims in the bill, and further proceedings are to be taken as to some of the defendants. Carter v. Kimbrough, 122 Miss. 543, 84 So. 251, 1920 Miss. LEXIS 453 (Miss. 1920).

Nonsuit without prejudice is not a final judgment. State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124, 1919 Miss. LEXIS 21 (Miss. 1919), overruled, Solomon v. Continental Baking Co., 174 Miss. 890, 166 So. 376, 165 So. 607, 1936 Miss. LEXIS 215 (Miss. 1936).

Decree sustaining demurrer to bill and ordering transfer of cause to circuit court is appealable. Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, 1917 Miss. LEXIS 203 (Miss. 1917).

However, where court sustained demurrer to a bill, and granted time to amend, an appeal from the order should be dismissed. Armstrong v. Moore, 112 Miss. 511, 73 So. 566, 1916 Miss. LEXIS 138 (Miss. 1916).

Voluntary dismissal or nonsuit by a plaintiff after defendant had moved for a peremptory instruction and the court had indicated its intention of giving such instruction was not a final judgment and not appealable. Gulf & S. I. R. Co. v. Williams, 109 Miss. 549, 68 So. 776, 1915 Miss. LEXIS 192 (Miss. 1915), overruled, Solomon v. Continental Baking Co., 174 Miss. 890, 166 So. 376, 165 So. 607, 1936 Miss. LEXIS 215 (Miss. 1936).

Judgment, on defendants’ plea in abatement in suit instituted by attachment, adjudging that attachment was wrongfully sued out and assessing defendants’ damages, was a final judgment. Chas. Brooks & Co. v. Gentry, 108 Miss. 447, 66 So. 812, 1914 Miss. LEXIS 214 (Miss. 1914).

Decree vacating temporary injunction and dismissing bill was final and appealable. Anderson v. Henderson, 103 Miss. 211, 60 So. 137, 1912 Miss. LEXIS 157 (Miss. 1912).

Order allowing complainant 30 days to file amended bill after demurrer to complaint sustained is not appealable. Moore v. Evans, 98 Miss. 855, 54 So. 438, 1910 Miss. LEXIS 133 (Miss. 1910).

Appeal from an order granting a new trial is not from final judgment and will be dismissed. Yazoo & M. V. R. Co. v. Reid, 90 Miss. 616, 43 So. 952, 1907 Miss. LEXIS 99 (Miss. 1907).

Ruling on demurrer in action at law, not reviewed where no final judgment rendered by the trial court. Pine Lumber Co. v. Covington County, 87 Miss. 706, 40 So. 260, 1905 Miss. LEXIS 200 (Miss. 1905); Tate County v. Bourland, 42 So. 379 (Miss. 1906); Davis v. Woods, 95 Miss. 432, 48 So. 961, 1909 Miss. LEXIS 249 (Miss. 1909).

The Supreme Court is without jurisdiction of an appeal in a criminal case which is prosecuted before judgment from a verdict convicting the appellant, and will of its own motion dismiss the same. Hayden v. State, 81 Miss. 55, 32 So. 922, 1902 Miss. LEXIS 130 (Miss. 1902).

A decree sustaining or dismissing a bill of review is a final decree from which an appeal will lie. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482, 1896 Miss. LEXIS 189 (Miss. 1896).

A decree directing a partition of land if it can be equitably done, and if not that the commissioners appointed to make the sale shall report accordingly to the next term, is an interlocutory and not a final decree. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482, 1896 Miss. LEXIS 189 (Miss. 1896).

If plaintiff does not during the term obtain leave to amend, judgment sustaining demurrer to declaration, though not expressing that the action is dismissed, is final and may be appealed from. Jacobs v. New York Life Ins. Co., 71 Miss. 656, 71 Miss. 658, 15 So. 639 (1894); Dickerson v. Western Union Tel. Co., 111 Miss. 264, 71 So. 385, 1916 Miss. LEXIS 284 (Miss. 1916).

Decree on final account of administrator, which allows some items and disallows others, and awards payment of certain sums in partial distribution, is final, and may be appealed from without leave, although it continues the final account. McDonald v. McDonald, 68 Miss. 689, 9 So. 896, 1891 Miss. LEXIS 27 (Miss. 1891).

Order of circuit court sustaining motion for removal of cause to Federal court, not a final judgment from which an appeal can be prosecuted. Jackson v. Alabama G. S. R. Co., 58 Miss. 648, 1881 Miss. LEXIS 17 (Miss. 1881).

15. Matters presented for review.

There are practical and institutional limitations upon the Supreme Court’s ability to find facts; consequently, much deference is placed upon the trial judge’s full discharge of his or her responsibility to make findings of fact as to the question of whether Miranda rights have been intelligently, knowing and voluntarily waived. However, when the trial judge fails to make specific findings and only makes general findings thereby allowing admissibility of evidence, the Supreme Court’s scope of review is considerably broader particularly when the trial judge’s findings on the precise points at issue on appeal are not clearly inferable from the findings made. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

Findings of fact made by a chancellor may not be set aside or disturbed on appeal unless manifestly wrong; this is so whether the finding relates to evidentiary or ultimate fact questions. Smith v. Smith, 545 So. 2d 725, 1989 Miss. LEXIS 295 (Miss. 1989).

With respect to issues of fact where the chancellor made no specific finding, the Supreme Court proceeds on the assumption that the chancellor resolved all such fact issues in favor of the appellee, or at least in a manner consistent with the decree. Smith v. Smith, 545 So. 2d 725, 1989 Miss. LEXIS 295 (Miss. 1989).

Where appeal with supersedeas was still pending in the court and issue remained open, Supreme Court could correct judgment awarding appellee impleaded fund which erroneously included interest on the fund, on motion, although judgment of circuit court was rendered against appellee rather than against the fund. Gayden v. Kirk, 208 Miss. 283, 44 So. 2d 410, 1950 Miss. LEXIS 247 (Miss. 1950).

Purchaser of real property who refuses to carry out contract to purchase on other grounds cannot, on appeal from judgment in favor of vendor, raise the objection to form of deed tendered that it required vendee to pay taxes, since grantor did not have opportunity to meet this objection, which he might have corrected had any request been made that he do so. Vanlandingham v. Jenkins, 207 Miss. 882, 43 So. 2d 578, 1949 Miss. LEXIS 399 (Miss. 1949).

Rule that question not raised in trial court cannot be raised for first time on appeal is subject to exception where alleged error affects fundamental rights of the parties or public policy, if such will work no injustice to any party to the appeal. Carter v. State, 198 Miss. 523, 21 So. 2d 404, 1945 Miss. LEXIS 226 (Miss. 1945).

If the records show that the court adjudicated that a fact existed, the existence of which was essential to the court’s acquiring jurisdiction over the party, the record is conclusive as against attack on appeal. 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).

On issue raised by plea in abatement, finding was against defendant, and on appeal from judgment on the merits exonerating defendant, the cause was reversed and remanded to fix plaintiff’s damages. An appeal was taken from the judgment fixing damages, and the bond recited that appeal was taken also from the judgment on the plea. Whether appellant was entitled to have reviewed the judgment on the plea could be determined on appeal from the final judgment. Yazoo & M. V. R. Co. v. McNeely, 121 Miss. 803, 83 So. 815, 1920 Miss. LEXIS 122 (Miss. 1920).

Correction of errors made by a court having full jurisdiction of the cause is committed solely to the Supreme Court on direct appeal. Hinton v. Shedd, 115 Miss. 208, 76 So. 144, 1917 Miss. LEXIS 200 (Miss. 1917).

Appeal from the final decree in an equity suit brings in review all interlocutory decrees adverse to the appellant to which due exception was taken and made of record. Jackson v. Lemler, 83 Miss. 37, 35 So. 306, 1903 Miss. LEXIS 10 (Miss. 1903).

16. Dismissal of appeal.

In an appeal from what was effectively, a partial summary judgment, which resolved the ownership of the disputed life insurance policy as being owned by the decedent, the ultimate issue of who was the proper beneficiary, the decedent’s former husband, or the decedent’s child, was apparently reserved, there was no showing to justify a certification, and therefore, the appeal was an improper interlocutory appeal and was dismissed. Evans v. Moore, 853 So. 2d 850, 2003 Miss. App. LEXIS 751 (Miss. Ct. App. 2003).

Supreme Court is without jurisdiction of case by appeal from order of circuit court sustaining demurrer to petition and granting appeal, and case so appealed must be dismissed. Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

Appeal from court’s refusal to modify divorce decree directing that parties’ minor children be placed in certain boarding school for scholastic year and then be returned to mother’s father for six weeks, then transferred to custody of father for six weeks was dismissed as moot on mother’s motion where the scholastic term and the two successive six weeks’ periods had expired. Savell v. Savell, 206 Miss. 55, 39 So. 2d 532, 1949 Miss. LEXIS 241 (Miss. 1949).

Appellant cannot dismiss appeal unless granted right to do so by the court. Wolf v. Mississippi Valley Trust Co., 130 Miss. 144, 93 So. 581, 1922 Miss. LEXIS 192 (Miss. 1922).

Where it appears that all of the principles of the case cannot be settled on the appeal, the appellant will be allowed to dismiss it. Wolf v. Mississippi Valley Trust Co., 130 Miss. 144, 93 So. 581, 1922 Miss. LEXIS 192 (Miss. 1922).

Assignment of error not considered when decision of the question it presents will have no effect upon the rights of appellant. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 1921 Miss. LEXIS 113 (Miss. 1921).

Appeal dismissed where real purpose is not to obtain a reversal of the decree but to have it affirmed. Smith v. Citizens' Bank & Trust Co., 125 Miss. 139, 87 So. 488, 1920 Miss. LEXIS 341 (Miss. 1920).

The Supreme Court is without jurisdiction of an appeal in a criminal case which is prosecuted before judgment from a verdict convicting the appellant, and will of its own motion dismiss the appeal. Hayden v. State, 81 Miss. 55, 32 So. 922, 1902 Miss. LEXIS 130 (Miss. 1902).

17. Statutory damages.

Statute (Code 1942, § 1971), providing for damages in case of unsuccessful appeals, is applicable only to final decrees and not to appeals from interlocutory decrees. Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 1927 Miss. LEXIS 358 (Miss. 1927); Sample v. Romine, 193 Miss. 736, 10 So. 2d 346 (Miss. 1942).

18. Limitations.

Constitution of 1890, § 104 and Code 1906, § 3096, providing that the statutes of limitation in civil cases shall not run against municipal corporations have no bearing on appeals. Section 3112 fixing the time for taking appeals must be construed with § 33 authorizing appeals. Town of Tutwiler v. Gibson, 117 Miss. 879, 78 So. 926, 1918 Miss. LEXIS 232 (Miss. 1918).

RESEARCH REFERENCES

ALR.

Appealability of order entered on motion to strike pleading. 1 A.L.R.2d 422.

Finality of judgment or decree for purposes of review as affected by provision for future accounting. 3 A.L.R.2d 342.

Right of trustee of express trust to appeal from order or decree not affecting his own personal interest. 6 A.L.R.2d 147.

Judgment as res judicata pending appeal or motion for a new trial, or during the time allowed therefor. 9 A.L.R.2d 984.

Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted. 10 A.L.R.2d 1075.

Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below. 11 A.L.R.2d 317.

Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant. 11 A.L.R.2d 607.

Appealability of order denying directed verdict or for judgment n. o. v. where movant has been granted new trial. 57 A.L.R.2d 1198.

Appealability of order setting aside, or refusing to set aside, default judgment. 8 A.L.R.3d 1272.

Reviewability of order denying motion for summary judgment. 15 A.L.R.3d 899.

Right to perfect appeal, against party who has not appealed, by cross appeal filed after time for direct appeal had passed. 32 A.L.R.3d 1290.

Appealability of state court’s order granting or denying motion to disqualify attorney. 5 A.L.R.4th 1251.

Appealability, under 28 USCS § 1291, of order awarding or denying attorneys’ fees. 73 A.L.R. Fed. 271.

When will federal court of appeals review issue raised by party for first time on appeal where legal developments after trial affect issue. 76 A.L.R. Fed. 522.

Am. Jur.

15 Am. Jur. Pl & Pr Forms (Rev), Judgments, Form 463.2 (Notice of motion – To vacate judgment – Insufficiency of evidence and error of law).

18 Am. Jur. Pl & Pr Forms (Rev), Motions, Rules, and Orders, Form 5.1 (Notice of motion – To vacate or modify judgment – By stipulation of parties).

CJS.

4 C.J.S., Appeal and Error §§ 140-159, 213, 233, 419-421.

Law Reviews.

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

Recent Trends in Mississippi Judicial Rule Making: Court Power, Judicial Recusals, and Expert Testimony, 23 Miss. C. L. Rev. 1, Fall, 2003.

§ 11-51-5. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 57, art. 1 (16); 1857, ch. 57, art. 17; 1871, § 2161; 1880, § 2682; 1892, § 2752; 1906, § 3112; Hemingway’s 1917, § 2476; 1930, § 2323; 1942, § 753; Laws, 1916, ch. 222; Laws, 1926, ch. 153; Laws, 1954, ch. 214, §§ 1, 2 (¶¶ 1, 2), effective sixty days after passage (approved March 2, 1954); Am Laws, 1972, ch. 459, § 1]

Editor’s Notes —

Former §11-51-5 related to time for appeals to the supreme court.

§ 11-51-7. Repealed.

Repealed by Laws of 1993, ch. 448, § 1, eff from and after passage (approved March 22, 1993).

[Codes, Hutchinson’s 1848, ch. 54, art. 37; 1857, ch. 60, art. 102; 1871, § 1257; 1880, § 2311; 1892, § 34; 1906, § 35; Hemingway’s 1917, § 10; 1930, § 14; 1942, § 1148; Laws, 1924, ch. 151; Am. Laws, 1978, ch. 335, § 10]

Editor’s Notes —

Former §11-51-7 provided how and when interlocutory orders or decrees of the chancery court may be appealed.

§ 11-51-9. Decrees in matters testamentary.

The final decrees of chancery courts, and interlocutory orders or decrees named in this chapter, include such final or interlocutory decrees as may be made in matters testamentary and of administration, and in minors’ business, and in cases of persons of unsound mind, unless it be otherwise expressly provided by a statute applicable to such cases.

HISTORY: Codes, 1880, § 2315; 1892, § 37; 1906, § 38; Hemingway’s 1917, § 14; 1930, § 17; 1942, § 1151.

Cross References —

All orders that meet requirements of Miss. Rules of Appellate Procedure Rule 5 may be considered on interlocutory appeal, see Miss. R. App. P. 1 and 5.

JUDICIAL DECISIONS

1. In general.

An appeal may not be taken from the appointment of a guardian for an incompetent for the purpose of bringing a suit to set aside his conveyance, by the persons against whom such suit is to be brought. Ridgway v. Scott, 237 Miss. 400, 114 So. 2d 844, 1959 Miss. LEXIS 484 (Miss. 1959).

RESEARCH REFERENCES

ALR.

Right of appeal from order on application for removal of personal representative, guardian, or trustee. 37 A.L.R.2d 751.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 171- 173.

CJS.

4 C.J.S., Appeal and Error § 221.

§ 11-51-11. Appeal from judgment of criminal contempt.

  1. A person ordered by any tribunal, except the Supreme Court, to be punished for a contempt, may appeal to the court to which other cases are appealable from said tribunal. Where the punishment is either a fine only, or jail confinement only, the appeal shall be allowed upon the posting of a bond, payable to the state, with sufficient sureties, not exceeding One Thousand Dollars ($1,000.00), conditioned to abide the results of the appeal. Where the punishment is both a fine and jail confinement, the appeal shall be allowed upon the posting of a bond, not exceeding Two Thousand Dollars ($2,000.00), conditioned to appear in the court to which the appeal is prosecuted and to abide the results of such appeal.
  2. The amount of the bonds provided for in subsection (1) of this section shall be fixed by the tribunal appealed from, shall be approved by the sheriff or other officer in whose custody the appellant may be and shall not be construed as a limitation on the amount of any fine which may be imposed.
  3. All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.
  4. The burden of proof in criminal contempt shall be proof beyond a reasonable doubt. A contemnor shall not be entitled to a jury trial unless the contemnor requests a jury trial and unless the fine exceeds Five Hundred Dollars ($500.00), or the imprisonment exceeds six (6) months.

HISTORY: Codes, 1880, § 2316; 1892, § 38; 1906, § 39; Hemingway’s 1917, § 15; 1930, § 18; 1942, § 1152; Laws, 1978, ch. 335, § 11; Laws, 1981, ch. 369, § 1, eff from and after July 1, 1981.

Cross References —

Bills of exception generally, see §11-7-211.

JUDICIAL DECISIONS

1. In general.

2. Criminal contempt.

3. Punishment.

4. Bonds.

1. In general.

The factual findings of a chancery court in a civil contempt case are affirmed unless manifest error is present and apparent. However, the Supreme Court is not bound by the manifest error rule when reviewing an appeal of a conviction of criminal contempt; reviewing proceeds ab initio to determine whether on the record the contemnor is guilty of contempt beyond a reasonable doubt. Premeaux v. Smith, 569 So. 2d 681, 1990 Miss. LEXIS 628 (Miss. 1990).

A person convicted of criminal or civil contempt may appeal to the Supreme Court pursuant to §11-51-11 and §11-51-12. Also, a plaintiff in a civil contempt case may appeal by authority of §11-51-3, which authorizes appeals from final judgments in civil cases. An appeal from a dismissal of a petition for criminal contempt does not lie under §99-35-103(b); there is no statute authorizing an appeal by the petitioner when a trial court has dismissed a petition for criminal contempt. Common Cause of Mississippi v. Smith, 548 So. 2d 412, 1989 Miss. LEXIS 362 (Miss. 1989).

Under this statute, the Supreme Court must decide from the record whether the appellant was actually guilty of contempt, and in so doing the Court is not held to the rule that they will not reverse unless the chancellor is manifestly wrong. Prestwood v. Hambrick, 308 So. 2d 82, 1975 Miss. LEXIS 1832 (Miss. 1975).

Under this section [Code 1942, § 1152] a husband had a right to appeal with supersedeas from his conviction of contempt for failure to pay child support. Mullen v. Mullen, 248 So. 2d 786, 1971 Miss. LEXIS 1482 (Miss. 1971).

An appeal from a judgment of civil contempt was properly based on this section [Code 1942, § 1152]. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

The application of this section [Code 1942, § 1152] is not limited to criminal contempts. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

This statute is designed to protect a person convicted of any kind of contempt, by fixing specific amounts for his appeal and appearance bonds, and by giving the Supreme Court a broader than usual review of the decision of the trial court. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

On appeals from a judgment for contempt of court, the Supreme Court will decide for itself the question of contempt. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

In an appeal from a conviction for contempt, the Supreme Court is not held to the rule that it will not reverse unless the chancellor is manifestly wrong, but is empowered to review the case and decide for itself whether there had been an actual contempt of court. Ballew v. Case, 232 Miss. 183, 98 So. 2d 451, 1957 Miss. LEXIS 458 (Miss. 1957).

Appellant, who claimed that certain household goods and an automobile which had been in possession of the decedent belonged to his wife and his principal, respectively, was not guilty of contempt of court by filing replevin action against the administratrix, in her individual capacity, to recover possession of the property while the estate was in process of administration. Ballew v. Case, 232 Miss. 183, 98 So. 2d 451, 1957 Miss. LEXIS 458 (Miss. 1957).

Court’s knowledge in contempt case should be reflected in judgment for purposes of review. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

Judgment for contempt should be clear and explicit to constitute res judicata, and warrant appellate court in affirming, reversing, annulling, or modifying it. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

Judgment, in effect reciting court found respondent guilty of contempt, but leaving time and manner to conjecture, could not be maintained. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

In proceeding for direct contempt, contemnor should be permitted to make statement and apology, and courteously state views to have them incorporated in bill of exceptions. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

An appeal can be taken only from a final judgment or decree. Eure v. Taylor, 126 Miss. 155, 88 So. 514, 1921 Miss. LEXIS 20 (Miss. 1921).

The court being the trier of facts in criminal contempt proceedings, it is presumed that he followed the evidence in finding facts showing guilt. Durham v. State, 97 Miss. 549, 52 So. 627, 1910 Miss. LEXIS 252 (Miss. 1910).

A decree adjudging a party guilty of contempt and providing that unless he purges himself thereof within a designated time the court will adjudge punishment, is interlocutory and non-appealable. Nutt v. State, 95 Miss. 422, 49 So. 145, 1909 Miss. LEXIS 259 (Miss. 1909); Eure v. Taylor, 126 Miss. 155, 88 So. 514, 1921 Miss. LEXIS 20 (Miss. 1921).

2. Criminal contempt.

In a child custody case, there was sufficient evidence to support a conviction for constructive criminal contempt based on a failure to comply with visitation and a failure to provide an accounting of college funds. Even though some of the facts were disputed, it was admitted that there was a violation of a visitation order, and several explanations were given for this conduct. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

A contemnor was denied due process of law where the show cause hearing for the contempt charges was conducted by the same judge who presided over the divorce proceedings and the related motion for recusal from which the alleged contempt originated, the contemnor was charged with a course of conduct that was committed, for the most part, outside the presence of the court, his conduct associated with the divorce proceedings involved the judge personally, and the judge chose to set a show cause hearing at a date subsequent to the alleged contemptuous conduct. Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994), on rehearing (Miss. Apr. 27, 1995).

The evidence was sufficient to support a conviction of an attorney for criminal contempt based on the violation of a court order prohibiting communication with jurors after the return of the verdict, where the attorney admitted to being present in the courtroom when the judge read the order twice, the attorney contacted two jurors and attempted to have them discuss items relevant to the case with him by pretending to have authority from the judge to contact the jurors, and the conversations between the attorney and the jurors indicated the attorney’s knowledge of the order, even though the attorney claimed that he did not comprehend the order because of a hearing problem and fatigue as a result of the trial. Lawson v. State, 573 So. 2d 684, 1990 Miss. LEXIS 803 (Miss. 1990).

Criminal contempt was not proven beyond a reasonable doubt, in spite of the antagonistic behavior of an adjoining landowner who had been unsuccessful in a boundary dispute action, where there was no proof that the landowner aided the lessee in continuing farming operations on the land, the landowner testified that he moved the court-ordered property line stakes so that the farming machinery would not run over them, and the landowner did not pose any real threat to other adjoining landowners, even though he made reference to a “smoking stick” during a verbal altercation, since he did not have a gun and there was no testimony that the other landowners felt so threatened as to abandon the survey of the land. Mabry v. Howington, 569 So. 2d 1165, 1990 Miss. LEXIS 560 (Miss. 1990).

A citation for criminal contempt is to vindicate the dignity and authority of the court. A citation is proper only when the contemnor has willfully, deliberately and contumaciously ignored the court. A decree which defines with reasonable specificity what the alleged contemnor must do or refrain from doing is prerequisite to a citation. The burden of proving the criminal contempt is on the party asserting it. The guilt of the contemnor must be established beyond a reasonable doubt for a conviction of criminal contempt. Premeaux v. Smith, 569 So. 2d 681, 1990 Miss. LEXIS 628 (Miss. 1990).

Attorney who aids client in denying visitation rights to client’s former spouse when client petitions court for modification of custody and visitation, only to confront congested court calendar and legitimate trial preparation needs and scheduling conflicts of opposing counsel, as result of which immediate hearing cannot be had, is not guilty of criminal contempt; furthermore, where judge whose court or order has allegedly been offended by conduct of attorney has substantial personal involvement in bringing and prosecution of criminal contempt proceedings, he may not adjudge attorney’s guilt. Cook v. State, 483 So. 2d 371, 1986 Miss. LEXIS 2393 (Miss. 1986).

This section [Code 1942, § 1152] is the only statute authorizing an appeal from conviction of criminal contempt. Masonite Corp. v. International Woodworkers of America, 206 So. 2d 171, 1967 Miss. LEXIS 1242 (Miss. 1967).

In the absence of proof in the record sufficient to convict beyond a reasonable doubt, conviction for constructive criminal contempt was not sustained. Brannon v. State, 202 Miss. 571, 29 So. 2d 916, 1947 Miss. LEXIS 319 (Miss. 1947).

3. Punishment.

A divorced wife appealing from a judgment of contempt of court for her failure to return a house to her divorced husband in good condition in violation with the provisions of the divorce decree, could enter a plea for mitigation of punishment by reason of insanity, for the first time on appeal. Adair v. Holden, 222 So. 2d 834, 1969 Miss. LEXIS 1562 (Miss. 1969).

Appeal from a decree of conviction of contempt does not lie where the decree imposes no fine or punishment of any kind. Bond v. Anderson, 203 Miss. 283, 33 So. 2d 833, 1948 Miss. LEXIS 265 (Miss. 1948).

4. Bonds.

On an appeal from a judgment of civil contempt, the question as to the sufficiency of the appeal bond is not governed by Code 1942, § 1162, but by this section [Code 1942, § 1152]. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

Where a sheriff, who had been judged guilty of contempt of court, made no effort to file an appeal bond, and, after the time for an appeal had expired, the county judge directed the issuance of a capias pro fine to the coroner, who took the sheriff into custody, whereupon the sheriff petitioned the circuit court for a writ of habeas corpus, which was made returnable before the county judge, the trial judge in the habeas corpus proceedings did not have the power then to permit the sheriff to execute bonds and thereby effectually appeal the contempt judgments to the circuit court of the county. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Since the sheriff, in his contemptuous acts was not representing the county, and it had no beneficial interest in his conviction or acquittal, the sheriff was not exempt by Code 1942, § 1210, from executing a bond upon appealing from contempt judgments. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

OPINIONS OF THE ATTORNEY GENERAL

Conviction of contempt for failing to pay previously assessed fines is appealable under the provisions of this section or §11-51-12. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

A separate appeal bond is required for each case in which a contempt finding is made. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

A defendant has the right to appeal a contempt conviction, but not the sentence. His appeal would be limited to whether or not he was guilty of contempt. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

RESEARCH REFERENCES

ALR.

Perjury or false swearing as contempt. 89 A.L.R.2d 1258.

Appealability of acquittal from or dismissal of charge of contempt of court. 24 A.L.R.3d 650.

Appealability of contempt adjudication or conviction. 33 A.L.R.3d 589.

Oral communications insulting to particular state judge, made to third party out of judge’s physical presence, as criminal contempt. 30 A.L.R.4th 155.

Right to appointment of counsel in contempt proceedings. 32 A.L.R.5th 31.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 182- 184.

17 Am. Jur. 2d, Contempt § 101.

CJS.

4 C.J.S., Appeal and Error §§ 268, 269.

17 C.J.S., Contempt §§ 207-242.

Law Reviews.

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

§ 11-51-12. Appeal from judgment of civil contempt.

  1. A person ordered by any tribunal, except the Supreme Court, to be punished for a civil contempt, may appeal to the court to which other cases are appealable from said tribunal. If jail confinement is ordered to compel the payment of any monetary sum, the contemnor shall be allowed to appeal upon the execution of an appearance bond, payable to the appellee, with sufficient sureties, in the penalty of one hundred twenty-five percent (125%) of such sum as he has been adjudicated in contempt for failure to pay, unless the court shall determine that a lesser bond should be required. The bond shall be conditioned to abide the results of the appeal.
  2. Where the punishment for civil contempt is other than jail confinement, the contemnor shall be allowed to appeal upon the posting of a bond, payable to the appellee, with sufficient sureties, to be approved by the tribunal appealed from, in an amount to be fixed by such tribunal, conditioned to abide the results of the appeal.
  3. All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.
  4. The burden of proof in civil contempt shall be proof by a preponderance of the evidence.

HISTORY: Laws, 1981, ch. 369, § 2; Laws, 1991, ch. 573, § 80, eff from and after July 1, 1991.

Cross References —

Stay or injunction pending appeal, see Miss. R. App. P. 8.

Procedural requirements for appeals to circuit courts in civil cases, see MRCrP 18.1, 29.1 through 29.5, and 30.1.

JUDICIAL DECISIONS

1. In general.

In a child custody proceedings, the evidence was sufficient to support a finding of civil contempt based on a mother’s failure to provide an accounting of certain college funds; the mother was unable to testify with certainty that the accounting was ever filed with the chancery clerk as ordered by the court. Davis v. Davis, 17 So.3d 114, 2009 Miss. App. LEXIS 105 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 436 (Miss. 2009).

In a divorce matter, a chancellor’s decision to disbelieve a contemnor when the contemnor asserted that the contemnor did not have an ability to pay was supported by the record because the contemnor failed to show, by a preponderance of the evidence, an inability to pay; moreover, the chancellor chose to disbelieve the contemnor’s assertions because, among other things, the contemnor had previously manufactured figures and understated the contemnor’s income. Stribling v. Stribling, 960 So. 2d 556, 2007 Miss. App. LEXIS 1 (Miss. Ct. App. 2007).

There are several available defenses to a civil contempt charge. One defense is that whatever violation there may have been of a decree or order was not wilful or deliberate such that the behavior in question may not be labeled as contumacious. Included in this defense may be an honest inability to perform according to the dictates of the order or decree. Another available defense is the traditional notion of “clean hands.” A third defense is that of an inability to obey an order which is vague or not sufficiently specific. Smith v. Smith, 545 So. 2d 725, 1989 Miss. LEXIS 295 (Miss. 1989).

A person convicted of criminal or civil contempt may appeal to the Supreme Court pursuant to §11-51-11 and §11-51-12. Also, a plaintiff in a civil contempt case may appeal by authority of §11-51-3, which authorizes appeals from final judgments in civil cases. An appeal from a dismissal of a petition for criminal contempt does not lie under §99-35-103(b); there is no statute authorizing an appeal by the petitioner when a trial court has dismissed a petition for criminal contempt. Common Cause of Mississippi v. Smith, 548 So. 2d 412, 1989 Miss. LEXIS 362 (Miss. 1989).

Father who was imprisoned for civil contempt because of failure to pay past due child support was entitled to release pending appeal in accordance with the terms and conditions of Mississippi Code §11-51-12. Jones v. Hargrove, 493 So. 2d 346, 1986 Miss. LEXIS 2554 (Miss. 1986).

Mother’s proposal that the appearance bond, required of father to secure his release from custody pending appeal, should be conditioned so that, in the event Supreme Court affirmed the lower court’s contempt order, payment of child support average would be forthcoming was beyond the requirement of Mississippi Code §11-51-12. Jones v. Hargrove, 493 So. 2d 346, 1986 Miss. LEXIS 2554 (Miss. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Conviction of contempt for failing to pay previously assessed fines is appealable under the provisions of §11-51-12 or this section. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

A defendant has the right to appeal a contempt conviction, but not the sentence. His appeal would be limited to whether or not he was guilty of contempt. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

A separate appeal bond is required for each case in which a contempt finding is made. Markopoulos, Nov. 19, 2004, A.G. Op. 04-0566.

RESEARCH REFERENCES

ALR.

Appealability of acquittal from or dismissal of charge of contempt of court. 24 A.L.R.3d 650.

Appealability of contempt adjudication or conviction. 33 A.L.R.3d 589.

Oral communications insulting to particular state judge, made to third party out of judgment’s physical presence, as criminal contempt. 30 A.L.R.4th 155.

Right to appointment of counsel in contempt proceedings. 32 A.L.R.5th 31.

Am. Jur.

17 Am. Jur. 2d (Rev), Contempt § 3.

CJS.

4 C.J.S., Appeal and Error §§ 268, 269.

§§ 11-51-13 and 11-51-15. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-51-13. [Codes, 1871, §§ 410, 1250; 1880, § 2317; 1892, § 40; 1906, § 41; Hemingway’s 1917, § 17; 1930, § 20; 1942, § 1154]

§11-51-15. [Codes, 1871, § 2841; 1880, § 2318; 1892, § 41; 1906, § 42; Hemingway’s 1917, § 18; 1930, § 21; 1942, § 1155; Am. Laws, 1978, ch. 335, § 12]

Editor’s Notes —

Former §11-51-13 related to how appeal obtained; by petition to clerk except in certain cases.

Former §11-51-15 related to the petition for appeal.

§ 11-51-17. One of several parties may appeal; failure to join appeal.

Any one or more of the parties to a judgment or decree may appeal therefrom. If all the parties to a judgment after receiving notice thereof in the time required by the Supreme Court do not join the appeal, they shall not afterward have the right of appeal, and the judgment of the court below shall remain in full force against them.

HISTORY: Codes, 1857, ch. 62, art. 107; 1871, § 1258; 1880, § 2319; 1892, § 42; 1906, § 43; Hemingway’s 1917, § 19; 1930, § 22; 1942, § 1156; Laws, 1991, ch. 573, § 81, eff from and after July 1, 1991.

Cross References —

Return-days for appeals, see §11-3-3.

Appeal as of right, how taken, see Miss. R. App. P. 3.

Filing and service, see Miss. R. App. P. 25.

JUDICIAL DECISIONS

1. In general.

2. Issuance of summons.

3. Failure to issue summons, effect of.

4. —Time for objection.

5. Necessary parties.

1. In general.

The purpose of the statute is to prevent the splitting of appeals. Duckworth v. Allis-Chalmers Mfg. Co., 247 Miss. 198, 150 So. 2d 163, 1963 Miss. LEXIS 293 (Miss. 1963).

Where plaintiffs brought an action against a city and landowner, among others, for injury sustained by the fall of a tree upon their automobile, and the landowner entered his appearance but filed no defensive pleadings, order of the trial court sustaining demurrer to an amended petition had the effect of finally dismissing plaintiff’s entire suit upon the failure to plead further within the time allowed and finally disposed of the case as to the landowner, and neither this section nor chapter 259, Laws of 1952 ( [Code 1942, § 1156] § 335.5), precluded plaintiff’s appeal from the trial court’s action. Barron v. Natchez, 229 Miss. 276, 90 So. 2d 673, 1956 Miss. LEXIS 607 (Miss. 1956).

Final decree against certain named defendants where not all of the defendants were even in court by any known valid form of process, which decree was wholly ineffectual and validly accomplished no purpose sought by the complainant, would be reversed and remanded pursuant to appeal by some of the defendants. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

Summons and severance requirement of statute respecting appeal is procedural only, and not jurisdictional, purpose being to prevent splitting of appeals. Hartford Acci. & Indem. Co. v. N. O. Nelson Mfg. Co., 167 Miss. 63, 146 So. 889, 1933 Miss. LEXIS 93 (Miss. 1933).

Statutory provision for summons and severance when all parties to decree do not join in appeal held inapplicable to appeals from county to circuit courts. Barber v. Loveland, 166 Miss. 625, 146 So. 854, 1933 Miss. LEXIS 357 (Miss. 1933).

Complainants, seeking separate and distinct judgment, cannot file cross-assignment of errors to defendants’ appeal, transferring controversy with other complainant. Walter Fisher Co. v. I. Lowenberg & Co., 149 Miss. 761, 116 So. 91, 1928 Miss. LEXIS 89 (Miss. 1928).

Within statutory period, one or more parties to judgment may appeal without consent of others. Wilkinson v. Love, 149 Miss. 523, 115 So. 707, 1928 Miss. LEXIS 58 (Miss. 1928).

2. Issuance of summons.

Where a landlord brought an action against a tenant and others who were claiming to have an interest in lease for rent owing and possession of premises, and a judgment was rendered against the tenant and others and their sureties, even though the tenant did not appeal the others in interest with the tenant and their sureties could prosecute an appeal. Treuting v. Guice, 224 Miss. 794, 80 So. 2d 829, 1955 Miss. LEXIS 542 (Miss. 1955).

Those summoned to join in appeal must give bond, and they cannot join after cause has proceeded to judgment. Wilkinson v. Love, 149 Miss. 523, 115 So. 707, 1928 Miss. LEXIS 58 (Miss. 1928).

After expiration of 6 months from rendition of judgment, parties summoned cannot join in appeal. Wilkinson v. Love, 149 Miss. 523, 115 So. 707, 1928 Miss. LEXIS 58 (Miss. 1928).

Where one defendant appeals by giving supersedeas bond a summons should issue to the other judgment defendants before proceeding to final hearing, and if appellant does not issue such summons the appellee should have it issued or move to dismiss the appeal, and if no summons is issued no execution can be issued on the judgment superseded. United States Fidelity & Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456, 1920 Miss. LEXIS 69 (Miss. 1920).

Where all parties against whom judgment was rendered did not join in appeal and no summons was issued to those not joined, the appellee may have such summons issued. Tardy v. Rosenstock, 118 Miss. 720, 80 So. 1, 1918 Miss. LEXIS 124 (Miss. 1918).

3. Failure to issue summons, effect of.

Where parties permitted cause to proceed to judgment, validity cannot be questioned on ground summons to other parties not joining in appeal was not issued, and cause will not be remanded to docket for that purpose. Wilkinson v. Love, 149 Miss. 523, 115 So. 707, 1928 Miss. LEXIS 58 (Miss. 1928).

Where one defendant appeals by giving a supersedeas bond and no summons is issued, no execution can be issued on the judgment superseded, since if the appellant does not issue summons for the other judgment defendants the appellee should have it issued or move to dismiss the appeal. United States Fidelity & Guaranty Co. v. Jackson, 123 Miss. 676, 86 So. 456, 1920 Miss. LEXIS 69 (Miss. 1920).

Where judgment was rendered against several defendants and an appeal taken in which one of the defendants did not join and for whom no summons was issued requiring him to join, the Supreme Court will either dismiss appeal or require statute to be complied with before consideration by court. Tardy v. Rosenstock, 118 Miss. 720, 80 So. 1, 1918 Miss. LEXIS 124 (Miss. 1918).

Where judgment was rendered against a firm, and it does not appear that there was any summons and severance so as to conclude one of the partners, the other cannot alone appeal. Gibson v. Carr, 91 Miss. 773, 45 So. 864, 1907 Miss. LEXIS 202 (Miss. 1907).

4. —Time for objection.

Contention based on fact that appellant’s co-complainants in trial court did not appeal, and that there was no summons and severance, could not be made for first time on suggestion of error. Hamel v. Marlow, 171 Miss. 559, 157 So. 255, 157 So. 905, 1934 Miss. LEXIS 222 (Miss.), set aside, 171 Miss. 565, 157 So. 905 (Miss. 1934).

Objection that all parties to decree were not joined in appeal from county to circuit court could not be raised for first time in Supreme Court. Barber v. Loveland, 166 Miss. 625, 146 So. 854, 1933 Miss. LEXIS 357 (Miss. 1933).

5. Necessary parties.

Sureties on bond on appeal to circuit court were not necessary parties to appeal. Wilson v. Lexington, 153 Miss. 209, 119 So. 795, 1929 Miss. LEXIS 1 (Miss. 1929).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 260.

CJS.

4A C.J.S., Appeal and Error §§ 29, 264, 273-276, 290, 294-297, 348, 353-387.

§ 11-51-19. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1892, § 43; 1906, § 44; Hemingway’s 1917, § 20; 1930, § 23; 1942, § 1157]

Editor’s Notes —

Former §11-51-19 related to when appeal returnable if issued by the clerk of the supreme court.

§ 11-51-21. Bond to be given by parties who join in the appeal.

If the parties summoned to join in the appeal desire to do so, they must comply with the requirements to perfect an appeal as if they had appealed in the first instance, or they shall not be allowed to join in said appeal. Such compliance shall be made within the time required by the Supreme Court, and if a supersedeas bond be filed, may be approved by the Clerk of the Supreme Court, or the clerk of the court from whose judgment the appeal was taken, and certified and filed in the office of the Clerk of the Supreme Court.

HISTORY: Codes, 1880, § 2320; 1892, § 44; 1906, § 45; Hemingway’s 1917, § 21; 1930, § 24; 1942, § 1158; Laws, 1978, ch. 335, § 13; Laws, 1991, ch. 573, § 82, eff from and after July 1, 1991.

Cross References —

Circuit court restrictions on who may sign bonds, see Uniform Rules of Circuit and County Court Practice Rule 1.07.

Appeal as of right, when taken, see Miss. R. App. P. 4.

JUDICIAL DECISIONS

1. In general.

The purpose of the statute is to prevent the splitting of appeals. Duckworth v. Allis-Chalmers Mfg. Co., 247 Miss. 198, 150 So. 2d 163, 1963 Miss. LEXIS 293 (Miss. 1963).

Those summoned to join in appeal must give bond, and they cannot join after cause has proceeded to judgment. Wilkinson v. Love, 149 Miss. 523, 115 So. 707, 1928 Miss. LEXIS 58 (Miss. 1928).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 292, 294.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 461.1 (notice – motion for order dispensing with or limiting security); Form 491.1 (notice – motion for order that security is insufficient).

CJS.

4A C.J.S., Appeal and Error §§ 325.

Law Reviews.

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

§ 11-51-23. Execution when suspended as to some parties.

If only part of those against whom a judgment or decree is rendered appeal and supersede its execution, an execution may be issued against all, and the clerk issuing it shall note on it the fact of the supersedeas as to those who appeal, and it shall be executed only as to the others.

HISTORY: Codes, 1880, § 2321; 1892, § 45; 1906, § 46; Hemingway’s 1917, § 22; 1930, § 25; 1942, § 1159.

Cross References —

Executions generally, see §§13-3-111 et seq.

§ 11-51-25. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 2322; 1892, § 46; 1906, § 47; Hemingway’s 1917, § 23; 1930, § 26; 1942, § 1160; Am Laws, 1978, ch. 335, § 14]

Editor’s Notes —

Former §11-51-25 related to petition not necessary to the validity of appeal.

§ 11-51-27. Terms for granting appeal.

An appeal may be granted by the court in all cases, upon terms prescribed, which shall include payment of all costs in the lower court.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, art. 2, § 150; 1857, ch. 62, art. 108; 1871, § 1250; 1880, § 2323; 1892, § 47; 1906, § 48; Hemingway’s 1917, § 24; 1930, § 27; 1942, § 1161; Laws, 1978, ch. 335, § 15; Laws, 1991, ch. 573, § 83, eff from and after July 1, 1991.

Cross References —

Computation and extension of time, see Miss. R. App. P. 26.

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error § 402.

Law Reviews.

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

§ 11-51-29. Prepayment of costs in civil cases on appeal.

On appeals from decrees overruling demurrers or other interlocutory orders or decrees, or where the appeal is granted to settle the principles of the case, or on appeals from final judgments of a circuit court in civil cases, or from final decrees of a chancery court including cases where the circuit court or chancery court has acted as an appellate court, the appellant shall prepay all of the costs in the lower court including the cost of the preparation of the record of the proceedings in the trial court, and fee prescribed in Section 25-7-3, to the clerk of the court from which the appeal is taken.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 2, § 37; 1857, ch. 62, art. 104; 1871, § 1252; 1880, § 2334; 1892, § 48; 1906, § 49; Hemingway’s 1917, § 25; 1930, § 28; 1942, § 1162; Laws, 1896, ch. 90; Laws, 1978, ch. 335, § 16, eff from and after July 1, 1978.

Cross References —

Power of supreme and circuit judges and chancellors to grant writ of supersedeas, see §9-1-19.

Power of county judge to issue writ of supersedeas, see §9-9-23.

Motion to discharge supersedeas, see §11-3-21.

Judgment on bond for supersedeas, see §11-3-27.

Exception to sufficiency of bond for supersedeas, see §11-3-33.

Deposit for costs, see §§11-51-69,99-35-107.

Appeals from county court operating as supersedeas, see §11-51-79.

JUDICIAL DECISIONS

1. In general.

2. Sufficiency.

3. Operation.

4. Sureties.

5. Statutory damages.

1. In general.

Although §11-51-29 may be interpreted to require all court costs to be prepaid upon the taking of an appeal, the statutory language is subject to Supreme Court Rule 11(b)(1) which clearly limits prepaid costs to those essential to the processing of the appeal. In re Newsom, 536 So. 2d 1, 1988 Miss. LEXIS 393 (Miss. 1988).

An appeal taken to the Supreme Court either by means of prepaying the costs in the lower court and the fee required by §25-7-3 or by means of filing in the office of the Clerk of the Supreme Court a transcript of the record of the case (§11-51-25 [Repealed]) is taken when the costs are prepaid as provided in §§11-51-29 and11-51-61 [Repealed]; since an appeal must be taken within 45 days after the rendition of the judgment or decree (§11-51-5 [Repealed]), the prepayment of costs must be accomplished within that period of time. Dixieland Food Stores, Inc. v. Kelly's Big Star, Inc., 384 So. 2d 1031, 1980 Miss. LEXIS 2011 (Miss. 1980), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

Although an appeal was not perfected where appellant failed to prepay court costs and the filing fee within the forty-five-day time limit, the appeal would not be dismissed where a new statute requiring the prepayment of costs and fees for the perfection of an appeal had gone into effect shortly before the final judgment was rendered, where the appellant had made a good faith effort to timely perfect the appeal under the old method, and where appellant was not timely presented with a bill of costs, as required by the new statute, but prepaid the cost bill as soon as presented. In future cases, if the clerk of the trial court fails to satisfy the statutory requirements as to the bill of costs, the attorney of record desiring an appeal must make a motion in writing to the trial judge, within the allotted forty-five-days, compelling production of the costs bill from the trial court clerk and, absent such a written motion within the time for appeal, the appeal will be dismissed for lack of jurisdiction. Allgood v. Allgood, 367 So. 2d 450, 1979 Miss. LEXIS 2213 (Miss. 1979), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

Legislative intent of amendments to §§11-51-25 [Repealed] and11-51-29 is to require prepayment of costs as means to perfect appeal; failure to timely perfect appeal, which requires prepayment of costs and fees, is jurisdictional and requires dismissal. Allgood v. Allgood, 367 So. 2d 450, 1979 Miss. LEXIS 2213 (Miss. 1979), overruled, Moran v. Necaise, 437 So. 2d 1222, 1983 Miss. LEXIS 2928 (Miss. 1983).

Appellant’s Motion for Stay of Execution and Motion for Leave to Appeal Without Supersedeas Bond did not toll the time allowed for appeal by Code 1972, §11-51-5 [Repealed]. When it became apparent that no ruling would be had on the appellant’s motions within the 45 day period, the appellant was required to post a cost bond as provided by Code 1972, §11-51-29 within the 45 day period, and he could then have filed a motion to the Supreme Court for supersedeas as provided for in Code 1972, §11-51-43. Summer v. Henn, 323 So. 2d 751, 1975 Miss. LEXIS 1575 (Miss. 1975).

This section [Code 1942, § 1162] and Code 1942, § 1163, which deal with appeal bonds generally in civil cases, were inapplicable to an appeal bond given on an appeal from a judgment of civil contempt. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

The furnishing of a bond by appellant and its approval, or a deposit in lieu thereof, must be within the time allowed for appeal. Hutchinson v. Ferrell, 248 Miss. 700, 160 So. 2d 903, 1964 Miss. LEXIS 294 (Miss. 1964).

County board of education, and its president, as agents of the state, may appeal without giving bond. County Board of Education v. Smith, 239 Miss. 53, 121 So. 2d 139, 1960 Miss. LEXIS 266 (Miss. 1960).

This section [Code 1942, § 1162] did not apply in an appeal from the determination of the chancellor in an annexation proceeding. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Where the circuit court, upon appeal, reviewed the case upon a record made in the county court, the contention of appellant, who undertook an appeal to the Supreme Court and deposited $100.00 in cash with the circuit clerk in lieu of a bond, that “the cost of the transcript” meant solely the cost in the circuit court and did not include the cost previously accrued in the county court was rejected, since the quoted term meant the transcript upon which the appellant relied for his appeal, including the stenographer’s notes of the testimony in county court, as well as other costs accrued in the appeal to the circuit court. Walters v. Fine, 232 Miss. 494, 95 So. 2d 229, 1957 Miss. LEXIS 485 (Miss. 1957).

Appellee could not file bond under this section [Code 1942, § 1162] and thereby prosecute appeal for appellant and move to advance cause on Supreme Court docket. Gaudet v. Mayor & Board of Aldermen, 42 So. 2d 808 (Miss. 1949).

Defect in appeal bond given in appeal from municipal ordinance to Circuit Court, in that it was signed only by the protestants as principals, and without the two sureties required by law, was waived by failure to object thereto in the circuit court; and, bond being amendable, defect did not deprive either the circuit court or supreme court of jurisdiction. Neely v. Charleston, 35 So. 2d 316 (Miss. 1948).

All defendants in the trial court must be specifically named as obligees in the appeal bond. Williams v. J. E. Walton & Son, 202 Miss. 641, 32 So. 2d 131, 1947 Miss. LEXIS 325 (Miss. 1947).

A drainage district is a separate, distinct legal entity, with power to sue and be sued as such in its corporate name, and is not excepted from the necessity of giving bond for appeal to the supreme court. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

Where an effort had been made in good faith by a drainage district to perfect an appeal within six months, and there had been no intentional delay in having the record filed with the clerk of the Supreme Court, and only a short delay in filing it, with no damage or prejudice to the other party, the Supreme Court in its discretion overruled a motion to dismiss the appeal on the ground of inexcusable delay in filing the transcript in the Supreme Court, and granted the drainage district permission to file the proper appeal bond within ten days. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

That circuit court permitted alleged defective bond given on appeal from county court to be amended held not error. Bassett v. Building & Loan Ass'n, 164 Miss. 674, 145 So. 109, 1933 Miss. LEXIS 229 (Miss. 1933).

Failure to file $100 appeal bond after prepaying cost of transcript requires dismissal of appeal. Howell v. Miller, 151 Miss. 372, 118 So. 178, 1928 Miss. LEXIS 314 (Miss. 1928).

An appeal bond is valid though executed and approved before the entry of the decree to be appealed from, and when the decree is entered will transfer the cause to the Supreme Court. Hughes v. Kaw Inv. Co., 129 Miss. 434, 91 So. 702, 1922 Miss. LEXIS 18 (Miss. 1922).

2. Sufficiency.

On an appeal from a judgment of civil contempt, the question as to the sufficiency of the appeal bond is not governed by this section, but by Code 1942, § 1152. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

A deposit of money equal to the penalty of the bond does not satisfy the requirements of the statute for an appeal without supersedeas in a civil case except where the cost of the transcript is prepaid, in which event a deposit of $100 may be made in view of the bond. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

Under a statute providing that where appellant prepays cost of transcript, a bond for $100 shall be sufficient or appellant may deposit that sum in cash with the clerk in lieu of the bond, and the appellants had not prepaid the cost of transcript within six months’ period, an appeal would be dismissed. Wooten v. Laurel, 221 Miss. 652, 74 So. 2d 752, 1954 Miss. LEXIS 572 (Miss. 1954).

Deposit of $100 with chancery clerk from which he deducted cost of making transcript of records was insufficient to comply with provision in this section [Code 1942, § 1162] permitting prepayment of costs of transcript and a $100 deposit in lieu of bond; consequently, the appeal was not perfected under Code 1942, § 1174, so that a motion to advance cause on docket of Supreme Court was properly denied as prematurely made. Gaudet v. Mayor & Board of Aldermen, 42 So. 2d 808 (Miss. 1949).

The appeal bond of an appellant, not desiring a supersedeas, in the amount of $100 is insufficient where appellant has not prepaid the cost of the transcript. Williams v. J. E. Walton & Son, 202 Miss. 641, 32 So. 2d 131, 1947 Miss. LEXIS 325 (Miss. 1947).

3. Operation.

There is nothing in this section which requires the clerk or any party to apply for an additional bond; The statute merely provides that such persons may apply for a greater bond if the cost of the appeal will exceed $500. Summer v. Henn, 323 So. 2d 751, 1975 Miss. LEXIS 1575 (Miss. 1975).

To operate as supersedeas, one of conditions of bond must be that appellant will satisfy judgment or decree complained of. Spiro v. Shapleigh Hardware Co., 153 Miss. 195, 119 So. 206, 1928 Miss. LEXIS 191 (Miss. 1928).

Where condition of bond was to pay Supreme Court’s judgment and all costs, it would not operate as supersedeas. Spiro v. Shapleigh Hardware Co., 153 Miss. 195, 119 So. 206, 1928 Miss. LEXIS 191 (Miss. 1928).

An appeal with or without supersedeas has the same effect except that the former operates to stay execution. Yazoo & M. V. R. Co. v. Adams, 78 Miss. 977, 30 So. 44, 1901 Miss. LEXIS 152 (Miss. 1901).

4. Sureties.

Where trial court fixed the bond at $1000 for an appeal without supersedeas and the appellant filed a petition for appeal and deposited cash without prepaying the transcript, this cash deposit did not satisfy the statutory requirement but the appellant should be given seven days to file a good and sufficient bond with proper sureties. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 82 So. 2d 895, 1955 Miss. LEXIS 590 (Miss. 1955).

A surety against whom judgment was rendered in the lower court, along with its principal there, is not a sufficient surety on an appeal bond, whether the surety be personal or corporate. Williams v. J. E. Walton & Son, 202 Miss. 641, 32 So. 2d 131, 1947 Miss. LEXIS 325 (Miss. 1947).

Appeal bond must have more than one surety unless surety is guaranty company. Champenois & Blanks v. Donald Co., 153 Miss. 719, 121 So. 485, 1929 Miss. LEXIS 77 (Miss. 1929).

A bond with but one surety is insufficient. Pfiefer & Dreyfus v. Hartman, 60 Miss. 505, 1882 Miss. LEXIS 90 (Miss. 1882).

5. Statutory damages.

Surety on appellant’s cost bond held not liable for statutory penalty of 5 per cent on money judgment affirmed, such penalty not being a part of “costs.” Humphreys v. Thompson, 130 So. 152 (Miss. 1930).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 292, 294.

Deposit in lieu of bond, 2 Am. Jur. Pl & Pr Forms (Rev ed), Appeal and Error, Forms 381-388.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal And Error, Forms 295, 296.

CJS.

4A C.J.S., Appeal and Error §§ 322-324, 337-340, 349-352.

Law Reviews.

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

§ 11-51-31. Bond for supersedeas.

  1. A supersedeas shall not be granted in any case pending before the Supreme Court, unless the party applying for it shall give bond as required by the Rules of the Supreme Court.
  2. In civil litigation under any legal theory, the appeal bond to be furnished during the pendency of all appeals or discretionary reviews by any appellate courts in order to stay the execution of any judgment granting legal, equitable, or other relief during the entire course of appellate review shall be set in accordance with applicable laws or court rules, except that the total appeal bond or other forms of security that are required of an appellant shall be in the amount of the judgment, but not to exceed fifty percent (50%) of the net worth of the appellant, and in no event shall the appeal bond exceed Thirty-five Million Dollars ($35,000,000.00).
  3. Notwithstanding subsection (2) of this section, if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter orders that:
    1. Are necessary to protect the appellee; and
    2. Require the appellant to post a bond in an amount up to the total amount of the judgment.
  4. In this section:
    1. “Civil litigation” includes, without limitation, cases involving individual, aggregated, class action, or otherwise joined claims.
    2. “Legal, equitable, or other relief” means all forms of relief including, without limitation, compensatory, special, punitive, exemplary or other damages, injunctive relief, or any other form of relief.
    3. “Dissipation of assets” shall not include expenditures, including payments to the owners of a business, of a kind that the appellant made in the regular course of business prior to entry of the judgment being appealed.
  5. The provisions of this section shall apply to all judgments entered on or after July 1, 2016, regardless of the date the civil litigation was filed.

HISTORY: Codes, Hutchinson’s 1848, ch. 54, art. 2, §§ 34, 37; 1857, ch. 62, art. 105; 1871, § 1251; 1880, § 2325; 1892, § 49; 1906, § 50; Hemingway’s 1917, § 26; 1930, § 29; 1942, § 1163; Laws, 1954, ch. 238; Laws, 1978, ch. 335, § 17; Laws, 1985, ch. 386; Laws, 1991, ch. 573, § 84; Laws, 2016, ch. 498, § 1, eff from and after July 1, 2016.

Amendment Notes —

The 2016 amendment added (2) through (5).

Cross References —

Appeal with supersedeas to chancery court from suspension, cancellation or revocation of grain warehouseman’s license, see §75-44-25.

Application of this section to appeal with supersedeas from suspension, cancellation or revocation of license of pulpwood receiving facility, see §75-79-21.

Circuit court restrictions on who may sign bonds, see Miss. Uniform Circuit and County Court Rule 1.07.

Interlocutory appeal by permission, see Miss. R. App. P. 5.

Stay or injunction pending appeal, see Miss. R. App. P. 8.

JUDICIAL DECISIONS

1. In general.

2. Bond on supersedeas.

3. Rights and liabilities on supersedeas.

4. Statutory damages.

1. In general.

The filing of a $500 cost bond by a party appealing to the Supreme Court of Mississippi from a decree confirming a municipal ordinance extending the city limits does not operate as a supersedeas where, following an unsuccessful appeal to that court, the appellant filed a petition for certiorari in the Supreme Court of the United States. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

Code 1942, § 1162 and this section [Code 1942, § 1163], which deal with appeal bonds generally in civil cases, were inapplicable to an appeal bond given on an appeal from a judgment of civil contempt. Bryant v. Associates Discount Corp., 251 Miss. 1, 167 So. 2d 657, 1964 Miss. LEXIS 321 (Miss. 1964).

Supersedeas in civil cases under this section [Code 1942, § 1163] is a matter of right only where there is a money decree or judgment, or where there is a decree or judgment for the recovery or against the retention of specific property, or where the sale of or delivery of possession of real estate is directed. Walton v. Tupelo, 241 Miss. 894, 133 So. 2d 531, 1961 Miss. LEXIS 418 (Miss. 1961).

This section [Code 1942, § 1163] did not have any application in an appeal in an annexation proceeding. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Since the denial to an electric power distributing company of a decree, enjoining a municipality and rural cooperative from proceeding further in establishing a competitive electrical power distribution system in the municipality, was not a money decree, was not for the recovery or against a retention of specific property, nor directed the sale of property, the electric power distributing company was not entitled to a supersedeas as a matter of right. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 640, 99 So. 2d 443, 1958 Miss. LEXIS 535 (Miss.), modified, 234 Miss. 615, 99 So. 2d 443, 1958 Miss. LEXIS 564 (Miss. 1958).

The dismissal of an appeal for failure to file the appeal bond within the required time is a breach of the conditions of the appeal bond so as to render the sureties liable. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

Code 1942, § 1970, permitting motion to discharge supersedeas in appeal to Supreme Court before appeal is returnable, is not applicable in case arising under this section [Code 1942, § 1163], which unquestionably grants right to appeal with supersedeas. Coulter v. Banks, 38 So. 2d 696 (Miss. 1949).

This section [Code 1942, § 1163] is not applicable to an appeal from an order issuing a writ of mandamus to compel a circuit clerk to permit a candidate to examine the ballot boxes after a primary election as provided by the Corrupt Practices Act, so as to allow an appeal with supersedeas as of right. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Appeals to the Supreme Court with supersedeas in civil cases are matters of right only under this section and §§ 31 and 33, Code of 1930 (Code 1942, §§ 1165, 1167), and then only in three classes of cases: (1) Where there is a money decree or judgment, or (2) where there is a decree or judgment for the recovery or against the retention of specific property, or (3) where the decree directs the sale or delivery of possession of real estate, in which cases a supersedeas is allowed as a matter of right when an approved supersedeas bond in double the amount or value is given, provided, of course, the decree or judgment is final in its nature or effect. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Where the chancery court, having found that the plaintiff had an interest in certain oil and gas leases, appointed a master, who was directed to state an account of the income and profits from the operation theretofore conducted under the leases, and of expenditures appropriately made to develop the property, and to report to the court his findings as to the rights of the parties under the accounting and for proper hearing and further decree thereon, and, to settle controlling principles and to avoid delay and expense, directed that an appeal should be granted to the Supreme Court, the chancery court, in undertaking to fix the value of the interest of the plaintiff, did so only for the purpose of determining the amount of the appeal bond to be furnished, and not as a final decree which would preclude further consideration of such value. Sample v. Romine, 193 Miss. 706, 10 So. 2d 346, 8 So. 2d 257, 1942 Miss. LEXIS 104 (Miss. 1942).

A drainage district is a separate, distinct legal entity, with power to sue and be sued as such in its corporate name, and is not excepted from the necessity of giving bond for appeal to the supreme court. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

To operate as supersedeas, one of conditions of bond must be that appellant will satisfy judgment or decree complained of. Spiro v. Shapleigh Hardware Co., 153 Miss. 195, 119 So. 206, 1928 Miss. LEXIS 191 (Miss. 1928).

Where condition of bond was to pay Supreme Court’s judgment and all costs, it could not operate as supersedeas. Spiro v. Shapleigh Hardware Co., 153 Miss. 195, 119 So. 206, 1928 Miss. LEXIS 191 (Miss. 1928).

If supersedeas does not on compliance with Code 1906 § 50, as matter of right, follow an appeal from a final decree, a judge of the Supreme Court may grant it under § 56 [Code 1942, § 1169]. Yazoo & M. V. R. Co. v. James, 108 Miss. 656, 67 So. 152, 1914 Miss. LEXIS 255 (Miss. 1914).

Appeals with and without supersedeas have the same effect except that the former operate to stay execution. Yazoo & M. V. R. Co. v. Adams, 78 Miss. 977, 30 So. 44, 1901 Miss. LEXIS 152 (Miss. 1901).

2. Bond on supersedeas.

Chancery court did not err in denying a county board of supervisors a supersedeas bond because nothing in the judgment awarded anything to anyone, it merely validated bonds; the chancery court reviewed the evidence of costs submitted by the board and also took note of the hardship that would cause to the objectors. Lauderdale Cnty. v. Lauderdale Cnty. Bd. of Supervisors, 172 So.3d 714, 2015 Miss. LEXIS 432 (Miss. 2015).

In judgment creditors’ suit alleging a court clerk’s negligence in approving the judgment debtors’ supersedeas bonds prevented the creditors from recovering from the bonds, as the clerk was acting in the course and scope of his employment when he approved the bonds, he and the county were immune from liability. Newton County v. State ex rel. Dukes, 133 So.3d 819, 2013 Miss. App. LEXIS 332 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 8 (Miss. 2014), aff'd in part and rev'd in part, 133 So.3d 805, 2014 Miss. LEXIS 143 (Miss. 2014).

The amount of a supersedeas bond should be sufficient to protect the appellee in his or her judgment and, therefore, it should ensure the payment of the judgment and interest, and any waste that could occur pending the appeal. If the appeal is affirmed, the appellee should be able to satisfy the payment of the judgment in full, together with costs, interests, and the damages for delay. The bond is the typical means of giving the appellees security. However, the court may approve security in the form of cash or property. The judgment may be secured in other ways such as the court’s taking possession of personal property or otherwise providing for a method to ensure payment of the appellee’s judgment. The controlling guideline in determination of form, amount, and procedure for supersedeas bonds is Mississippi Supreme Court Rule 8, effective January 1, 1988 which governs all proceedings in appeals and other proceedings subsequently brought. Perkins v. Thompson, 539 So. 2d 1029 (Miss. 1989).

Since appellant’s filing of two appeal bonds totaling 125 per cent of the judgment appealed from, under which different sureties bound themselves for a stated portion of the required supersedeas bond, was not a sufficient compliance with Code 1942, §§ 1163 and 1973, appellee’s exceptions to the sufficiency of the bonds would be sustained, unless within 30 days appellant filed a good and sufficient supersedeas bond. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

A supersedeas bond signed by only one individual surety is defective. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

The requirement as to the amount of a supersedeas bond is not met by giving bonds with different sureties for varying amounts aggregating the required amount. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

The NAACP, against whom a judgment was entered in a protracted state antitrust action arising from civil rights activities, was denied due process of law and was entitled to a preliminary injunction against the enforcement of §11-51-31 where state remedies with respect to the bond provisions had been exhausted, where the prevailing parties at trial were not required to give security for any loss or damage which might be sustained should the trial court’s judgment be set aside on appeal, where the parties prevailing at trial would not be substantially harmed by granting the injunctive relief and where, if injunctive relief were not granted, the NAACP’s rights of free speech and association would be severely impaired and the NAACP would suffer immediate and irreparable harm to its projects and programs. Henry v. First Nat'l Bank, 424 F. Supp. 633, 1976 U.S. Dist. LEXIS 12672 (N.D. Miss. 1976), aff'd, 595 F.2d 291, 1979 U.S. App. LEXIS 14550 (5th Cir. Miss. 1979).

Where the value of appellee’s net interest, including the money decree and the value of the property in controversy, less the amount awarded to appellants on their cross-bill, was $13,225, an appeal bond in the penal sum of $593.75 was for an insufficient amount, and the supersedeas would be ordered discharged unless, within 10 days, an adequate bond should be given and approved. Horton v. Boatright, 234 Miss. 446, 105 So. 2d 567, 1958 Miss. LEXIS 515 (Miss. 1958).

In an arbitration proceeding where an award has been entered almost two years earlier and which was subsequently affirmed, the chancery court had authority to correct the decree and where supersedeas bond had been overlooked in declaring a decree, the chancery court could include finding of liability to cost claimants against the supersedeas bond given by surety in connection with prior interlocutory appeal which had been dismissed. Fidelity & Casualty Co. v. State Bldg. Com., 228 Miss. 37, 87 So. 2d 449, 1956 Miss. LEXIS 485 (Miss. 1956).

On appeal by the defendants from an adverse decree in a suit by the owners of one-fourth of the stock of a corporation to have the corporation dissolved and the proceeds distributed, a supersedeas bond in double the par value of the stock of the complainants, rather than a bond in double the amount of the entire capital stock of the corporation, would be required. Hyman Mercantile Co. v. Kiersky, 192 Miss. 195, 192 Miss. 201, 4 So. 2d 881, 198 So. 574, 1940 Miss. LEXIS 1 (Miss. 1940).

On appeal from order granting injunction, if the bond required by the supersedeas decree is deemed insufficient and a motion filed to increase the bond, the facts showing the insufficiency of the bond must be set forth in the motion. McNeeley v. Natchez, 139 Miss. 628, 102 So. 564, 1925 Miss. LEXIS 107 (Miss. 1925).

Bond in double the amount of decree is required for supersedeas except where impounded funds are separately decreed to be turned over. Surety companies are qualified bondsmen. Aetna Ins. Co. v. Robertson, 127 Miss. 440, 90 So. 120, 1921 Miss. LEXIS 244 (Miss. 1921).

Where appellant executed appeal bond which is insufficient as a supersedeas under § 50, Code 1906, a motion to require a larger penalty will be overruled. McCrory v. Donald, 118 Miss. 596, 79 So. 801, 1918 Miss. LEXIS 101 (Miss. 1918).

If in a suit to restrain proceedings under an act of the Legislature, the chancery court dissolve the injunction, award damages against complainants and dismiss the bill, and the complainants obtain a supersedeas appeal under Code 1892, § 49, the Supreme Court on motion of appellees will discharge the supersedeas as to the dissolution of the injunction, but will continue it until the final hearing as to the decrees dismissing the suit and adjudging the act constitutional. Ross v. Quick, 89 Miss. 29, 42 So. 281, 1906 Miss. LEXIS 25 (Miss. 1906).

Bond with but one personal surety is insufficient. Pfiefer & Dreyfus v. Hartman, 60 Miss. 505, 1882 Miss. LEXIS 90 (Miss. 1882).

3. Rights and liabilities on supersedeas.

Sureties on husband’s supersedeas bond, staying enforcement pending appeal of decree granting wife divorce and establishing her title to the home, whereby husband was enabled to occupy part of the property and collect rent upon the remainder, were liable in a suit for an accounting for such rent due by the husband for his occupancy and for the amounts collected by him from the other tenants during the pendency of appeal. Hemphill v. Hemphill, 199 Miss. 428, 24 So. 2d 855, 1946 Miss. LEXIS 213 (Miss. 1946).

Where a surety appealed from a judgment against it and its principal executed an appeal bond providing that the surety should satisfy the judgment or decree complained of and also such final judgment or decree as might be made in the cause and all costs if the same should be affirmed, the surety was not liable for the judgment rendered in the court below by reason of such appeal bond where the judgment as to it was reversed on appeal. United States Fidelity & Guaranty Co. v. Rice, 184 Miss. 443, 185 So. 563, 186 So. 620, 1939 Miss. LEXIS 25 (Miss. 1939).

Authority of a court to make orders for the preservation of property in the hands of a receiver is not impaired by an appeal with supersedeas from the final decree. Lamb v. Rowan, 81 Miss. 369, 33 So. 4, 1902 Miss. LEXIS 146 (Miss. 1902).

Actions on supersedeas and injunction bonds are not maintainable until the final disposition of the case in which they were given. Yazoo & M. V. R. Co. v. Adams, 78 Miss. 977, 30 So. 44, 1901 Miss. LEXIS 152 (Miss. 1901).

Where pending an appeal with supersedeas, the bond not having been executed until nearly four months after date of judgment, and the sheriff not having been served with the writ of supersedeas or received other official notification of it, he is not liable on his bond for permitting a successful claimant to take property that had been adjudged to him. Memphis Grocery Co. v. Anderson, 76 Miss. 322, 24 So. 387, 1898 Miss. LEXIS 87 (Miss. 1898).

By executing bond to supersede a decree in chancery the sureties subject themselves to the jurisdiction of the court to enforce the decree and it may render a decree against them on the bond. Kiernan v. Cameron, 66 Miss. 442, 6 So. 206, 1889 Miss. LEXIS 124 (Miss. 1889).

4. Statutory damages.

The amount of the supersedeas bond is not conclusive of the basis upon which the 5% damages of a successful appellee is to be computed. Sunflower Farms, Inc. v. McLean, 238 Miss. 168, 117 So. 2d 808, 1960 Miss. LEXIS 393 (Miss. 1960).

Where an appeal was dismissed because of the appellant’s failure to file an appeal bond within the required time, under Code 1942, § 1973 statutory damages will be allowed. Davidson v. Hunsicker, 224 Miss. 203, 80 So. 2d 834, 1955 Miss. LEXIS 480 (Miss. 1955).

Notwithstanding granting of appeal with supersedeas to settle principles of the case on dissolution of an injunction to restrain a sale under a trust deed, statutory damages should be allowed. Burns v. Dreyfus, 69 Miss. 211, 11 So. 107, 1891 Miss. LEXIS 93 (Miss. 1891).

RESEARCH REFERENCES

ALR.

Validity and construction of state statutory provision forbidding court to stay, pending review, judgment or order revoking or suspending professional, trade, or occupational license. 42 A.L.R.4th 516.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 292, 294.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 461.1 (notice – motion for order dispensing with or limiting security); Form 491.1 (notice – motion for order that security is insufficient).

2 Am. Jur. Pl & Pr Forms (Rev), Appeal And Error, Forms 295, 296.

Law Reviews.

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

§ 11-51-33. Parties and sureties on bonds examined on oath.

To enable the clerk to determine the value or amount of the matter in controversy, or the value of rents, where the same shall not appear by the proceedings in the cause, he may examine the parties and other persons, on oath. He may also examine, on oath, all persons who may be offered as sureties on any supersedeas bond, touching their sufficiency as such sureties, and require the examination to be put in writing and signed by such persons.

HISTORY: Codes, 1857, ch. 62, art. 106; 1871, § 1253; 1880, § 2343; 1892, § 50; 1906, § 51; Hemingway’s 1917, § 27; 1930, § 30; 1942, § 1164; Laws, 1978, ch. 335, § 18, eff from and after July 1, 1978.

Cross References —

Power of clerk to administer oaths, see §11-1-1.

RESEARCH REFERENCES

ALR.

Counterclaim, etc. as affecting appellate jurisdictional amount. 58 A.L.R.2d 84.

Jurisdictional amount for appellate review as affected by payment, tender, or settlement. 58 A.L.R.2d 166.

Jurisdictional amount for appellate review as affected by abandonment of claim, wholly or in part. 58 A.L.R.2d 177.

Perjury or false swearing as contempt. 89 A.L.R.2d 1258.

Am. Jur.

5 Am. Jur. 2d Appellate Review §§ 387,393, 394.

CJS.

4A C.J.S., Appeal and Error §§ 339, 342.

Law Reviews.

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

§ 11-51-35. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 61, art. 1 (88); 1857, ch. 55, art. 19; 1871, § 1556; 1880, § 2326; 1892, § 51; 1906, § 52; Hemingway’s 1917, § 28; 1930, § 31; 1942, § 1165; Am Laws, 1978, ch. 335, § 19]

Editor’s Notes —

Former §11-51-35 related to bond to supersede writ of possession.

§ 11-51-37. Judgment on bond to supersede writ of possession.

If the judgment or decree as to the land embraced in the stay of execution obtained under Section 11-51-35 shall be affirmed, the court below, on the receipt of the certificate of the affirmance, shall, after the obligors in the supersedeas bond have been summoned, proceed to inquire, as well of the value of the use and occupation of said land as of the damages by any waste or injury contemplated by the bond. Judgment for the sums assessed shall be rendered against the obligors in the bond, or such as are alive; and if any be dead, like proceedings in all respects may be had as are provided for in other cases of deceased obligors in bonds given in legal proceedings.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 1(88); 1857, ch. 55, art. 19; 1871, § 1556; 1880, § 2327; 1892, § 52; 1906, § 53; Hemingway’s 1917, § 29; 1930, § 32; 1942, § 1166; Laws, 1978, ch. 335, § 20, eff from and after July 1, 1978.

Editor’s Notes —

Section 11-51-35 referred to in this section was repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

This section is modified or supplanted by Rule 8, Miss. R. App. P. as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Proceedings on death of surety on bonds, see §§11-1-29 to11-1-35.

Judgment on appeal bonds generally, see §§11-3-27 to11-3-33.

Proceedings upon affirmance of judgment in ejectment when crop is growing on land, see §§11-19-91,11-19-93.

JUDICIAL DECISIONS

1. In general.

Neither Code 1942, § 1165 nor this section [Code 1942, § 1166] has any application to an appeal by tenant from judgment rendered in proceeding against him as a holdover tenant, awarding appellee recovery of land as against contention that tenant was in possession under contract for purchase, since this is not an appeal from judgment in an action of ejectment with a stay of execution. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 917, 1944 Miss. LEXIS 279 (Miss. 1944).

Plaintiff’s cause of action on defendant’s appeal bond stipulating that if the judgment, awarding plaintiff possession of land under statute (Code 1942, § 948) providing for proceedings against tenant holding over, as against defendant’s contention that he was in possession under contract of purchase, should be affirmed, defendant would pay all costs and the value of the use and occupation of the land after the time of taking the appeal, as well as damages for waste or injury, is enforceable, upon affirmance of the judgment, only by an original action on the bond and not merely by remanding the cause to the court below for the ascertainment of the amount of damages covered by the bond. Hodges v. Jones, 197 Miss. 107, 19 So. 2d 917, 1944 Miss. LEXIS 279 (Miss. 1944).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 393, 394, 387.

CJS.

5 C.J.S., Appeal and Error §§ 1182, 1223-1233.

Law Reviews.

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

§ 11-51-39. Requirements of supersedeas bond where judgment appealed from directs sale or delivery of possession of real estate.

If the judgment appealed from directs the sale or the delivery of possession of real estate, the supersedeas bond shall be conditioned to pay all damages, and not to commit or suffer to be committed any waste thereon, and to pay the value of the use and occupation thereof until the delivery of possession, in case the possession is to be surrendered, if the judgment appealed from shall be affirmed. In such case, the chancery court, when the cause shall be remanded, shall ascertain the value of the use and occupation and of any waste committed and the damages, and shall render such judgment therefor against the obligors in the supersedeas bond, or the representatives of any who have died, as may be necessary to secure the rights of the party entitled to such judgment. A judgment for the sums assessed shall be rendered against the obligors in the bond or such as are alive; and if any be dead, like proceedings may be had in all respects as provided for in other cases of deceased obligors in bonds given in legal proceedings.

HISTORY: Codes, 1880, § 2328; 1892, § 53; 1906, § 54; Hemingway’s 1917, § 30; 1930, § 33; 1942, § 1167; Laws, 1978, ch. 335, § 21; Laws, 1991, ch. 573, § 85, eff from and after July 1, 1991.

Editor’s Notes —

This section is modified or supplanted by Miss. R. App. P. 8, as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Proceedings on death of surety on bond, see §§11-1-29 to11-1-35.

Sale of land under decree, see §§11-5-93 et seq.

JUDICIAL DECISIONS

1. In general.

2. Bond on real property judgment.

1. In general.

Supersedeas in civil cases under this section [Code 1942, § 1167] is a matter of right only where there is a money decree or judgment, or where there is a decree or judgment for the recovery or against the retention of specific property, or where the sale of or delivery of possession of real estate is directed. Walton v. Tupelo, 241 Miss. 894, 133 So. 2d 531, 1961 Miss. LEXIS 418 (Miss. 1961).

Since denial to an electric power distributing company of a decree enjoining a municipality and rural cooperative from proceeding further in establishing a competitive electrical power distribution system in the municipality, was not a money decree, was not for the recovery or against a retention of specific property, nor directed the sale of property, the electric power distributing company was not entitled to a supersedeas as a matter of right. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 640, 99 So. 2d 443, 1958 Miss. LEXIS 535 (Miss.), modified, 234 Miss. 615, 99 So. 2d 443, 1958 Miss. LEXIS 564 (Miss. 1958).

Since Code 1942, § 1165, was inapplicable, to an appeal from the chancellor’s action in refusing to quash an alias writ of possession instituted at the instance of a party who had previously been adjudicated to have the title to and possession of the land in question, a bond conditioned thereon was improper. The bond should have been conditioned upon this section [Code 1942, § 1167]. Melvin v. Parker, 231 Miss. 844, 95 So. 2d 790, 1957 Miss. LEXIS 571 (Miss. 1957).

This section [Code 1942, § 1167] is not applicable to an appeal from an order issuing a writ of mandamus to compel a circuit clerk to permit a candidate to examine the ballot boxes after a primary election as provided by the Corrupt Practices Act, so as to allow an appeal with supersedeas as of right. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Appeals to the Supreme Court with supersedeas in civil cases are matters of right only under this section [Code 1942, § 1167] and §§ 29 and 31, Code of 1930 (Code 1942, §§ 1163, 1165) and then only in three classes of cases: (1) Where there is a money decree or judgment, or (2) where there is a decree or judgment for the recovery or against the retention of specific property, or (3) where the decree directs the sale or delivery of possession of real estate, in which cases a supersedeas is allowed as a matter of right when an approved supersedeas bond in double the amount or value is given, provided, of course, the decree or judgment is final in its nature or effect. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Where court decrees sale of real estate to satisfy lien established by the court, to obtain an appeal with supersedeas, a bond is required in double the value of the property ordered sold, or in double the judgment rendered against the property, taking whichever is the smallest as a basis for the bond. Beekman v. Bost, 125 Miss. 77, 86 So. 713, 1921 Miss. LEXIS 91 (Miss. 1921).

Where appellant executed bond which is insufficient as a supersedeas under Code 1906, § 54, a motion to increase penalty will be overruled. McCrory v. Donald, 118 Miss. 596, 79 So. 801, 1918 Miss. LEXIS 101 (Miss. 1918).

2. Bond on real property judgment.

Trial court did not err in awarding each party 50 percent of marital assets where the husband maintained the farms and helped wife through medical school, which gave her a higher income, but the trial court erred in determining the amount of the supersedeas bond because the bond on the money judgment awarded to the husband should have been set in accordance with Miss. R. App. P. 8, and the bond on the farm awarded to the husband should have been set according to Miss. Code Ann. §11-51-39. Deal v. Wilson, 922 So. 2d 24, 2005 Miss. App. LEXIS 475 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 127 (Miss. 2006).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 393, 394, 387.

Undertaking to stay judgment directing sale or delivery of possession of real property, 2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Forms 233, 234.

CJS.

5B C.J.S., Appeal and Error §§ 1018, 1065-1075.

Law Reviews.

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

§ 11-51-41. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 2331; 1892, § 56; 1906, § 57; Hemingway’s 1917, § 33; 1930, § 36; 1942, § 1170]

Editor’s Notes —

Former §11-51-41 related to supersedeas as to decree fixing specific charge on real estate.

§ 11-51-43. Supersedeas in cases not provided for.

In any case of an appeal to the Supreme Court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from or by the judge thereof, or by the supreme court or any of the judges of said court, upon such bond, with such sureties as said court or judge may direct in the order for a supersedeas.

HISTORY: Codes, 1880, § 2330; 1892, § 55; 1906, § 56; Hemingway’s 1917, § 32; 1930, § 35; 1942, § 1169.

Editor’s Notes —

This section is modified or supplanted by Rule 8, Miss. R. App. P. as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Exception to sufficiency of bond for supersedeas, see §11-3-33.

JUDICIAL DECISIONS

1. Allowance of writ.

2. Matters covered.

3. Bond required.

1. Allowance of writ.

Appellant’s Motion for Stay of Execution and Motion for Leave to Appeal Without Supersedeas Bond did not toll the time allowed for appeal by Code 1972, §11-51-5 [Repealed]; When it became apparent that no ruling would be had on the appellant’s motions within the 45 day period, the appellant was required to post a cost bond as provided by Code 1972, §11-51-29 within the 45 day period, and he could then have filed a motion to the Supreme Court for supersedeas as provided for in Code 1972, §11-51-43. Summer v. Henn, 323 So. 2d 751, 1975 Miss. LEXIS 1575 (Miss. 1975).

Supersedeas is in the discretion of the court on appeal from a decree granting an injunction. Walton v. Tupelo, 241 Miss. 894, 133 So. 2d 531, 1961 Miss. LEXIS 418 (Miss. 1961).

In a proceeding by an electric power distributing company to enjoin a municipality and rural cooperative from proceeding further in establishing a competitive electric power distributing system, a decree that the complainant “take nothing” was a self-executing decree for which no process was required, and, since there was nothing upon which a supersedeas could operate, the writ would not issue. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 640, 99 So. 2d 443, 1958 Miss. LEXIS 535 (Miss.), modified, 234 Miss. 615, 99 So. 2d 443, 1958 Miss. LEXIS 564 (Miss. 1958).

Under this section [Code 1942, § 1169] whether a supersedeas shall be allowed is within the sound discretion of the court. Orkin Exterminating Co. v. Posey, 218 Miss. 611, 67 So. 2d 526, 1953 Miss. LEXIS 577 (Miss. 1953).

Where the chancellor heard the evidence and denied request for appeal with supersedeas, and that evidence was not before the supreme court, the court was in no position to say that this action of the chancellor constituted an abuse of sound discretion vested in him and accordingly would deny petition filed in supreme court by supersedeas. Orkin Exterminating Co. v. Posey, 218 Miss. 611, 67 So. 2d 526, 1953 Miss. LEXIS 577 (Miss. 1953).

This section [Code 1942, § 1169], governs appeals to the Supreme Court with supersedeas from final decrees or judgments in all civil cases other than those mentioned in Code 1942, §§ 1163, 1165, and 1167, and allowance thereof is within the sound discretion of the court. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

Allowance of appeal with supersedeas from writ of mandamus ordering circuit clerk to permit candidate to examine ballot boxes after primary election as provided by the Corrupt Practices Act was an abuse of discretion, where such allowance had the practical effect of denying the writ so far as affording any relief before the day of the general election, and it appeared on review that the appeal was without merit and instituted for the purpose of delay. Sartin v. Barlow, 196 Miss. 159, 16 So. 2d 372, 1944 Miss. LEXIS 175 (Miss. 1944).

If supersedeas does not, on compliance with Code 1906 § 50 (Code 1942, § 1163), as matter of right, follow an appeal from a final decree, a judge of the Supreme Court can grant it under this section (Code 1906, § 56). Yazoo & M. V. R. Co. v. James, 108 Miss. 656, 67 So. 152, 1914 Miss. LEXIS 255 (Miss. 1914).

2. Matters covered.

Affirmative injunctive relief, denied the appellant by the lower court, may not be granted by the Supreme Court under the guise of a writ of supersedeas. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 640, 99 So. 2d 443, 1958 Miss. LEXIS 535 (Miss.), modified, 234 Miss. 615, 99 So. 2d 443, 1958 Miss. LEXIS 564 (Miss. 1958).

A supersedeas or stay will not be granted by either the lower or the appellate court where it would result in irreparable or disproportionate injury to the appellee, or where the damage which may result from it cannot be compensated for in money, so that the appellee will not be protected by the bond in case of affirmance. Orkin Exterminating Co. v. Posey, 218 Miss. 611, 67 So. 2d 526, 1953 Miss. LEXIS 577 (Miss. 1953).

On motion for a supersedeas in cause appealed thereto, the Supreme Court will not pass on matters litigated further than is necessary to determine the motion. Alabama & V. R. Co. v. Jackson & E. R. Co., 129 Miss. 437, 91 So. 902, 1922 Miss. LEXIS 34 (Miss. 1922).

3. Bond required.

On appeal by the defendants from an adverse decree in a suit by the owners of one-fourth of the stock of a corporation to have the corporation dissolved and the proceeds distributed, a supersedeas bond in double the par value of the stock of the complainants, rather than a bond in double the amount of the entire capital stock of the corporation, would be required. Hyman Mercantile Co. v. Kiersky, 192 Miss. 195, 192 Miss. 201, 4 So. 2d 881, 198 So. 574, 1940 Miss. LEXIS 1 (Miss. 1940).

Supersedeas may be granted upon giving bond for costs, interest and damages where a money decree is separable in ordering payment of impounded funds in a suit for penalty for violating anti-trust law. Aetna Ins. Co. v. Robertson, 127 Miss. 440, 90 So. 120, 1921 Miss. LEXIS 244 (Miss. 1921).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 393, 394 et seq.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 241.1 (application for stay of execution pending appeal).

CJS.

5B C.J.S., Appeal and Error §§ 1018-1094.

§ 11-51-45. When bond made payable to state.

In all cases not specially provided for, the supersedeas bond may be made payable to the state. Where it is provided that such bond shall be made payable to the opposite party, it shall not be an objection to the bond that it is not payable to the proper person, but such bond shall be valid and binding on the obligors, and may be proceeded on in all respects as if it were payable as directed by law.

HISTORY: Codes, 1880, § 2329; 1892, § 54; 1906, § 55; Hemingway’s 1917, § 31; 1930, § 34; 1942, § 1168; Laws, 1978, ch. 335, § 22, eff from and after July 1, 1978.

Cross References —

General effect of defect in bond, see §11-3-5.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 387- 397.

CJS.

5 C.J.S., Appeal and Error §§ 1182-1187, 1191-1193.

Law Reviews.

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

§ 11-51-47. Supersedeas bond signed by one appellant sufficient.

Supersedeas bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond; but if the decree or judgment be affirmed as to some and reversed as to others of said appellants, the judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the bond.

HISTORY: Codes, 1857, ch. 62, art. 111; 1871, § 1261; 1880, § 2332; 1892, § 57; 1906, § 58; Hemingway’s 1917, § 34; 1930, § 37; 1942, § 1171; Laws, 1978, ch. 335, § 23, eff from and after July 1, 1978.

Cross References —

Circuit court restrictions on who may sign bonds, see Miss. Uniform Circuit and County Court Rule 1.07.

JUDICIAL DECISIONS

1. In general.

2. Defects in bond.

3. Liability on bond.

1. In general.

Defendant who did not sign appeal bond held estopped, after decision, from setting up want of authority in his attorney to authorize appeal where petition for appeal was filed jointly and severally by defendants and was signed by attorney who represented each of them in trial court. Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 378, 168 So. 468 (Miss. 1936).

It is unnecessary for all the appellants who unite in the appeal to execute the bond. Hudson v. Gray, 58 Miss. 589, 1881 Miss. LEXIS 3 (Miss. 1881); Avent v. Markette, 109 Miss. 835, 69 So. 705, 1915 Miss. LEXIS 231 (Miss. 1915).

2. Defects in bond.

Where appeal bond executed by surety and signed by one defendant recited that both defendants were appellants and record came before Supreme Court in regular form with appeal bond operating as a supersedeas and court’s attention was not directed to any defects therein, surety held estopped to rely on any defects in proceedings or to assert that defendant who did not sign bond did not authorize appeal. Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 378, 168 So. 468 (Miss. 1936).

Sureties on appeal bonds, make themselves parties to appeal and answerable to appellee respecting all liability thereon; hence must ascertain before bonds are signed and approved who are appellants therein. Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 378, 168 So. 468 (Miss. 1936).

After appeal has been granted and cause removed by approval of the appeal bond, the chancellor has lost jurisdiction to reform the bond. Avent v. Markette, 109 Miss. 835, 69 So. 705, 1915 Miss. LEXIS 231 (Miss. 1915).

Appeal bond will not be stricken and appeal dismissed because names of some of principals were inserted without authority. Avent v. Markette, 109 Miss. 835, 69 So. 705, 1915 Miss. LEXIS 231 (Miss. 1915).

Where on motion to dismiss appeal appellant’s counsel admits defect in the appeal bond and requests leave to file a bond, such leave will be granted. Wills v. Howie Bros., 109 Miss. 568, 68 So. 780, 1915 Miss. LEXIS 194 (Miss. 1915).

3. Liability on bond.

Where judgment is rendered against two or more persons from which an appeal with supersedeas is taken and the judgment is reversed as to one and affirmed as to the other or others, the appellee as to whom the case is reversed is not liable on the supresedeas bond but the sureties are liable thereon. Wise v. Cobb, 135 Miss. 673, 100 So. 189, 1924 Miss. LEXIS 58 (Miss. 1924).

If appellants execute a joint supersedeas bond and the judgment be reversed as to some and affirmed as to others, the court will render judgment against the sureties. Terry v. Curd & Sinton Mfg. Co., 66 Miss. 394, 6 So. 229, 1889 Miss. LEXIS 113 (Miss. 1889).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 387- 397.

CJS.

5 C.J.S., Appeal and Error §§ 1191-1193.

Law Reviews.

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

§ 11-51-49. Bonds by corporations.

Appeal bonds may be executed by a corporation by its authorized agent or attorney, in the name of the corporation, without affixing its corporate seal, and such bond, when so executed by the attorney of record of a corporation, shall be held and conclusively presumed to have been executed by the authority of such corporation.

HISTORY: Codes, 1892, § 58; 1906, § 59; Hemingway’s 1917, § 35; 1930, § 38; 1942, § 1172; Laws, 1888, p. 92.

Cross References —

Corporate instrumentalities of United States government appealing without bond, see §11-51-101.

RESEARCH REFERENCES

CJS.

5B C.J.S., Appeal and Error §§ 1034-1037.

§§ 11-51-51 through 11-51-55. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-51-51. [Codes, 1892, § 59; 1906, § 60; Hemingway’s 1917, § 36; 1930, § 39; 1942, § 1173; Am Laws, 1978, ch. 335, § 24]

§11-51-53. [Codes, 1892, § 60; 1906, § 61; Hemingway’s 1917, § 37; 1930, § 40; 1942, § 1174; Am Laws, 1978, ch. 335, § 25]

§11-51-55. [Codes, Hutchinson’s 1848, ch. 63, class IV, art. 1 (24); 1851; 1851, ch. 63, art. 29; 1871, § 431; 1880, § 2345; 1892, § 72; 1906, § 73; Hemingway’s 1917, § 53; 1930, § 52; 1942, § 1186]

Editor’s Notes —

Former §11-51-51 related to appeals to be granted and bonds approved by clerk.

Former §11-51-53 related to bond to be given to perfect an appeal.

Former §11-51-55 related service and return of summons in appeal.

§ 11-51-57. Appellee, nonresident or residence unknown.

When the appellee’s residence is unknown, and he has no attorney in this state, notice of the appeal may be published in the manner provided for by the Mississippi Rules of Civil Procedure for service by publication upon such persons, and the Supreme Court, being satisfied thereof, may hear and determine the appeal as if a summons had been duly served on the appellee.

HISTORY: Codes, Hutchinson’s 1848, ch. 63, class IV, art. 3; 1857, ch. 63, art. 30; 1871, § 432; 1880, § 1420; 1892, § 73; 1906, § 74; Hemingway’s 1917, § 54; 1930, § 53; 1942, § 1187; Laws, 1991, ch. 573, § 86, eff from and after July 1, 1991.

Cross References —

Appeal as of right, how taken, see Miss. R. App. P. 3.

Filing and service, see Miss. R. App. P. 25.

RESEARCH REFERENCES

CJS.

4 C.J.S., Appeal and Error §§ 472-476.

Lawyers’ Edition.

State regulation of appellate procedure in civil case as violating equal protection clause of Federal Constitution’s Fourteenth Amendment – Supreme Court cases. 100 L. Ed. 2d 947.

§ 11-51-59. Execution stayed by bond.

When an appeal shall be taken, and bond for stay of execution given, the clerk shall not issue execution on the judgment or decree appealed from until such stay shall end or be discharged. If execution had been issued before the bond for stay of execution was given, the clerk shall issue a command to the officer in whose hands the execution may be to desist from enforcing it, and to surrender any property seized under it to the person from whom it was taken or who may be entitled to it.

HISTORY: Codes, 1880, § 2346; 1892, § 74; 1906, § 75; Hemingway’s 1917, § 55; 1930, § 54; 1942, § 1188.

Cross References —

Judgments and executions generally, see §9-7-91.

Motion to discharge supersedeas in appeal to Supreme Court, see §11-3-21.

Bond required to stay proceedings at law, see §11-13-3.

Time for issuance of executions on judgments and decrees, see §13-3-109.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 257, 294, 340- 342.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 241.1 (application for stay of execution pending appeal).

General forms for bond to stay execution, 2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Forms 211-223.

CJS.

4 C.J.S., Appeal and Error §§ 472-476.

§§ 11-51-61 and 11-51-63. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-51-61. [Codes, Hutchinson’s 1848, ch. 63, art. 2 (151); 1857, ch. 62, art. 103; 1871, § 1255; 1880, § 2344; 1892, § 68; 1906, § 69; Hemingway’s 1917, § 47; 1930, § 55; 1942, § 1189; Am Laws, 1978, ch. 335, § 26]

§11-51-63. [Codes, Hemingway’s 1917, § 48; 1930, § 56; 1942, § 1190; Laws, 1914, ch. 209]

Editor’s Notes —

Former §11-51-61 related to duty of clerk when appeal is taken.

Former §11-51-63 related to appeals to Supreme Court – records to be made in duplicate.

§ 11-51-65. Record on second appeal.

If a case be remanded by the Supreme Court to the court below, and afterwards an appeal be taken in the same case to the Supreme Court, it shall not be necessary for the appellant to cause to be filed in the Supreme Court a transcript of so much of the record as may be already on file in said court, but the transcript previously sent up, together with a transcript of the subsequent proceedings in the case in the court below, shall constitute the record for the case in the Supreme Court. In such case, if the appellant shall, in his application for appeal, signify his desire for the clerk to make out and certify only a transcript of such subsequent proceedings, the clerk shall act accordingly.

HISTORY: Codes, 1880, § 2347; 1892, § 75; 1906, § 76; Hemingway’s 1917, § 56; 1930, § 57; 1942, § 1191.

JUDICIAL DECISIONS

1. In general.

Pleadings and replications already in Supreme Court on first appeal should be omitted from record on subsequent appeal. Yazoo & M. V. R. Co. v. M. Levy & Sons, 147 Miss. 211, 113 So. 325, 1927 Miss. LEXIS 345 (Miss. 1927).

Record on second appeal purporting to be full and complete is presumed so. Gilbert v. Glenny, 106 So. 517 (Miss. 1925).

Statute does not authorize court to consider on second appeal evidence in record on first appeal in passing on sufficiency of that on second trial. Gilbert v. Glenny, 106 So. 517 (Miss. 1925).

The court on appeal from decree enjoining enforcement of a judgment cannot examine the record filed on an appeal in the action in which the judgment was obtained. Hooks v. Alabama & V. R. Col, 73 Miss. 145, 18 So. 925, 1895 Miss. LEXIS 113 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 402- 409, 424- 430, 538.

CJS.

4 C.J.S., Appeal and Error §§ 554-687.

§ 11-51-67. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1942, § 1191.5; Laws, 1958, ch. 277, eff May 26, 1958]

Editor’s Notes —

Former §11-51-67 related to appeal to supreme court without transcript of evidence.

§ 11-51-69. Prepayment for costs certified on transcript.

When prepayment for costs shall be made with a clerk, he shall certify the fact on the transcript of the record, and immediately pay the costs of the court reporter. When the case shall be determined, if costs be adjudged against the appellant, the clerk shall pay the remaining costs out of the money so deposited, and shall deliver the residue of the money, or all of it if costs be not adjudged against such party, to the party entitled to it; and for any failure thereof he shall be liable to be dealt with by the Supreme Court, or the court of which he is clerk, for a contempt.

HISTORY: Codes, 1880, § 2348; 1892, § 76; 1906, § 77; Hemingway’s 1917, § 57; 1930, § 58; 1942, § 1192; Laws, 1978, ch. 335, § 27; Laws, 1979, ch. 482, § 2, eff from and after passage (approved April 18, 1979).

Cross References —

Security for costs in civil action of habeas corpus, see §11-43-47.

Deposit for costs in lieu of bond, see §11-51-29.

Deposits for costs in criminal cases, see §99-35-107.

JUDICIAL DECISIONS

1. In general.

Section 11-51-69 clearly contemplates that the court reporter will be paid after the transcript is completed, and not before; estimated fees should not be disbursed to court reporters, but rather, the actual cost of the transcript should be paid to the court reporter when the transcript is satisfactorily completed in compliance with the Mississippi Supreme Court Rules and filed with the trial court clerk. In re Southwest Mississippi Regional Medical Center, 593 So. 2d 44, 1992 Miss. LEXIS 51 (Miss. 1992).

Clerk’s certificate showing merely aggregate amount of fees for making transcript and for other services did not authorize taxation of costs therefor. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

Taxation of costs by clerk of Supreme Court based upon trial court’s certificate which stated aggregate amount of fees for making transcript and for other services rather than itemizing the account to show amount of fee for transcript would be set aside except insofar as it taxed fee due clerk of Supreme Court, but with permission granted to clerk of trial court to file a proper certificate and without prejudice to appellant to move for retaxation of costs. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

RESEARCH REFERENCES

Am. Jur.

Deposit in lieu of bond, 2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Forms 381-388.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal And Error, Forms 561 et seq.

CJS.

4 C.J.S., Appeal and Error §§ 441, 442.

Law Reviews.

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

§ 11-51-71. Statement on transcript of payment of fee therefor.

The clerk shall make a statement on the transcript of the record sent to the Supreme Court that the amount of his fee for such transcript has been paid to him; and, if he shall not do this, the Clerk of the Supreme Court shall not be required to demand and receive the same prior to filing the appeal.

HISTORY: Codes, 1880, § 2349; 1892, § 77; 1906, § 78; Hemingway’s 1917, § 58; 1930, § 59; 1942, § 1193; Laws, 1978, ch. 335, § 28, eff from and after July 1, 1978.

Cross References —

Fees of clerks of chancery courts, see §§25-7-9,25-7-13.

Fees of clerks of circuit courts, see §§25-7-9,25-7-13.

JUDICIAL DECISIONS

1. In general.

An item for transcribing court reporter’s notes erroneously omitted by the chancery clerk from the transcript, upon the supposition that the fact that the reporter had been paid made inclusion improper, may be added by the Supreme Court to the costs taxable against appellees, although the time for filing a motion to retax costs has expired. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 640, 99 So. 2d 443, 1958 Miss. LEXIS 535 (Miss.), modified, 234 Miss. 615, 99 So. 2d 443, 1958 Miss. LEXIS 564 (Miss. 1958).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 794- 840.

Law Reviews.

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

§ 11-51-73. Provision as to sending up bond directory.

The provision that the clerk shall send up to the Supreme Court any bond taken is directory, and shall not preclude the rendition of judgment by the Supreme Court on a copy of such bond, but said court may give judgment on a copy of such bond as if the original were before it.

HISTORY: Codes, 1880, § 2350; 1892, § 78; 1906, § 79; Hemingway’s 1917, § 59; 1930, § 60; 1942, § 1194; Laws, 1978, ch. 335, § 29, eff from and after July 1, 1978.

Cross References —

Effect of defect in bond, see §11-3-5.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 292, 294.

CJS.

4 C.J.S., Appeal and Error §§ 519, 520, 531-545.

Law Reviews.

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

§ 11-51-75. Appeal to circuit court from decision of a local governing authority.

Any person aggrieved by a judgment or decision of the board of supervisors of a county, or the governing authority of a municipality, may appeal the judgment or decision to the circuit court of the county in which the board of supervisors is the governing body or in which the municipality is located. A written notice of appeal to the circuit court must be filed with the circuit clerk within ten (10) days from the date at which session of the board of supervisors or the governing authority of the municipality rendered the judgment or decision. Upon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors or to the mayor or city clerk of the municipality and, if applicable, to any party who was a petitioner before the board of supervisors or the governing authority of the municipality.

The notice of appeal filed in the circuit court with the circuit clerk shall contain the following:

The name of the county board of supervisors or the name of the municipality as the appellee. If applicable, any party who was a petitioner before the board of supervisors or the governing authority of the municipality shall be named as an appellee.

A succinct statement of the reasons, or grounds, for the appeal.

A written description or designation of record which includes all matters that the appellant desires to be made part of the record.

Appellant must also deliver a copy of the notice of appeal and a written designation of the record, along with a list of all documents or transcripts in appellant’s possession, to the clerk of the board of supervisors or to the clerk of the municipality.

An appellee has ten (10) days from the filing of the notice of appeal with the circuit clerk to designate any other items or matters that appellee believes should be included in the designated record.

The clerk of the board of supervisors or the municipal clerk must assemble a complete record of the proceedings to include all writings, matters, items, documents, plats, maps and transcripts of proceedings that were part of the record and deliver the complete record to the circuit clerk within thirty (30) days after the filing of the notice of appeal with the circuit clerk. The clerk of the board of supervisors or the municipal clerk shall certify that the record is accurate and complete and contains all writings, matters, items, documents, plats, maps and transcripts of proceedings designated by appellant and appellee in their designations of record.

The circuit court, as an appellate court, either in term time or in vacation, shall hear and determine the same on the record and shall affirm or reverse the judgment. The circuit court shall enter an order establishing a briefing schedule and a hearing date, if any, for the parties to appear and present oral argument. If the judgment is reversed, the circuit court shall render such judgment or decision as the board of supervisors or the governing authority of the municipality ought to have rendered, and certify the same to the board of supervisors or the governing authority of the municipality. Costs shall be awarded as in other cases.

No appeal to the circuit court shall be taken from any order of the board of supervisors or the governing authority of the municipality which authorizes the issuance or sale of bonds, but all objections to any matters relating to the issuance and sale of bonds shall be adjudicated and determined by the chancery court, in accordance with the provisions of Sections 31-13-5 through 31-13-11. And all rights of the parties shall be preserved and not foreclosed, for the hearing before the chancery court, or the chancellor in vacation.

HISTORY: Codes, Hutchinson’s 1848, ch. 51, art. 5 (45, 46); 1857, ch. 59, art. 33; 1871, § 1383; 1880, § 2351; 1892, § 79; 1906, § 80; Hemingway’s 1917, § 60; 1930, § 61; 1942, § 1195; Laws, 1940, ch. 245; Laws, 1955, Ex ch. 33; Laws, 1962, ch. 240, eff from and after passage (approved June 1, 1962); Laws, 2018, ch. 448, § 1, eff from and after July 1, 2018.

Editor's Notes —

Laws of 2018, ch. 448, § 2, provides as follows:

“SECTION 2. This act shall take effect and be in force from and after July 1, 2018, but nothing in this act shall affect any appeal perfected before July 1, 2018.”

Amendment Notes —

The 2018 amendment rewrote the first paragraph, which read: “Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment be reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities. Costs shall be awarded as in other cases. The board of supervisors or municipal authorities may employ counsel to defend such appeals, to be paid out of the county or municipal treasury. Any such appeal may be heard and determined in vacation in the discretion of the court on motion of either party and written notice for ten (10) days to the other party or parties or the attorney of record, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct”; added (a) through (d); and designated the formerly undesignated last paragraph as (e), and therein, in the first sentence, deleted “Provided, however that” at the beginning, substituted “the governing authority of the municipality” for “municipal authorities,” deleted “both inclusive, of the Mississippi Code of 1972” from the end, and deleted the last sentence, which read: “Provided, further, nothing in this section shall affect pending litigation”; and made minor stylistic changes.

Cross References —

Actions to recover past due income, inheritance, and privilege taxes, see §7-5-55.

Bills of exceptions generally, see §11-7-211.

Appeals from special court of eminent domain, see §11-27-29.

Taxation of costs in cases appealed from inferior tribunals, see §11-53-71.

Presentation of claims against county, see §19-13-23.

Appeal from decree on municipal incorporation, see §21-1-21.

Appeal from decree of extension or contraction of municipal corporate boundaries, see §21-1-37.

Right of appeal from municipal equalization of tax assessments, see §21-33-39.

Right of appeal from action of municipality in assessing or collecting property taxes, see §21-33-83.

Claimant against municipality having right of appeal, see §21-39-11.

Right of appeal from determinations under Homestead Exemption Law, see §27-33-35.

Appeal from action of board of supervisors in equalizing tax assessments, see §§27-35-119,27-35-121.

Effect of appeal of tax assessment, see §27-35-121.

Appeal from order of county board of education in abolition, alteration, or creation of school districts, see §§37-7-103 et seq.

Appeal of an order by the school board, see §37-7-115.

Appeal from ordinance incorporating airport property into municipal boundaries, see §61-9-7.

Appeal from decision of Board of Bar Admissions, see §73-3-39.

Appeal from determination by municipal governing authorities of future power requirements of municipality, see §77-5-707.

JUDICIAL DECISIONS

1. In general.

2. Rules of Civil Procedure.

3. Bill of exceptions in general.

4. —Signing bill of exceptions.

5. Appeal bond.

6. Persons entitled to appeal.

7. Time for appeal.

8. Particular matters as appealable.

9. Questions presented for review.

10. Proceedings on appeal.

11. Disposition of appeal.

12. Other remedies.

13. Standing.

14. Jurisdiction.

15. Evidence.

16. Res judicata.

1. In general.

Circuit court properly dismissed employees’ petition for a writ of mandamus because the employees had another adequate remedy at law; the employees could have appealed to the circuit court under the state the decision of the city board of aldermen to discharge them. Prendergast v. City of Waveland, 146 So.3d 1021, 2014 Miss. App. LEXIS 483 (Miss. Ct. App. 2014).

Circuit court had to enter an order granting the appropriate building permit to the corporation as the city did not have discretion to deny a building permit to the corporation as a building leased by the corporation was zoned for commercial business, which included a package retail store; the city had no legally valid reason for denying a building permit. Vineyard Invs., LLC v. City of Madison, 999 So. 2d 438, 2009 Miss. App. LEXIS 21 (Miss. Ct. App. 2009).

Where a person objects to unethical conduct by that body, that person is only entitled to file a charge with the Mississippi Ethics Commission for investigation and subsequent action in the courts. The Commission should then investigate the individual’s allegations, and upon finding probable cause for believing that a violation has occurred, the Commission is statutorily commanded to refer all complaints and evidence gathered during its investigation to the attorney general and the local district attorney having jurisdiction for prosecution. City of Jackson v. Greene, 869 So. 2d 1020, 2004 Miss. LEXIS 337 (Miss. 2004).

Although the words, “final judgment” or “decision,” were not used, since a board of supervisors had in fact rendered its final decision on the matter, having ordered the zoning administrator to take legal action in an effort to seek the removal of structures from a property owner’s land, it had in fact rendered a final judgment; thus, the circuit court had jurisdiction to hear the owner’s appeal. Hinds County Bd. of Supervisors v. Leggette, 833 So. 2d 586, 2002 Miss. App. LEXIS 839 (Miss. Ct. App. 2002).

A mayor’s veto is an appealable action of a “municipal authority” under the statute. City of Madison v. Shanks, 793 So. 2d 576, 2000 Miss. LEXIS 183 (Miss. 2000).

This section is not applicable to a school board’s decision granting or denying the issuance of a Sixteenth Section land hunting and fishing lease. Prisock v. Perkins, 735 So. 2d 440, 1999 Miss. LEXIS 162 (Miss. 1999).

This section’s 10-day time limit in which to appeal the decision of a board of supervisors is both mandatory and jurisdictional, even where the decision of a board is claimed to be unlawful. Newell v. Jones County, 731 So. 2d 580, 1999 Miss. LEXIS 24 (Miss. 1999).

Where, within 10 days of the granting of a special exception by a county board of supervisors, a property owner filed a motion to amend his pending complaint, which amended complaint raised the issues that would have been raised by an appeal, the defects in procedure were not on the timeliness or on the issues raised, but on the label, “complaint” instead of “appeal,” and on the absence of a bill of exceptions, and, therefore, the property owner was entitled to promptly correct his deficiencies. Bowling v. Madison County Bd. of Supervisors, 724 So. 2d 431, 1998 Miss. App. LEXIS 952 (Miss. Ct. App. 1998).

The zoning decision of a local governing body which appears to be “fairly debatable” will not be disturbed on appeal, and will be set aside only if it clearly appears that the decision is arbitrary, capricious, discriminatory, illegal, or not supported by substantial evidence; neither the Supreme Court nor the circuit court should sit as a “super-zoning commission”; thus, the circuit court erred in overturning a city council’s decision that the character of a neighborhood had changed substantially and that a public need existed to justify rezoning where the decision of the city council was fairly debatable. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

Any court in state sitting as appellate court has inherent authority to allow additional parties to participate in appeal upon timely application or upon court’s invitation, and upon timely application any such third party should be permitted to intervene if that party claims interest relating to property or transaction which is subject of appeal and is so situated that disposition of appeal may as practical matter impair or impede his ability to protect that interest, unless that party’s interest is adequately represented by existing party; parties other than original parties to appeal may participate in appellate process by filing amicus curiae at request of court or by leave of court; motion for leave to file amicus brief should demonstrate (1) amicus has interest in some other case involving similar question, or (2) counsel for a party is inadequate or brief insufficient, or (3) there are matters of fact or law which might otherwise escape court’s attention, or (4) amicus has substantial legitimate interests that will likely be affected by outcome of case and which interest will not be adequately protected by those already parties. Cooper v. Picayune, 511 So. 2d 922, 1987 Miss. LEXIS 2677 (Miss. 1987).

Validation proceedings are the exclusive remedy for raising objections in connection with the issuance and sale of bonds, except those which could be or should be raised before the board of supervisors or municipal authorities, and such objections cannot be properly raised in a suit for an injunction. Chambers v. Perry, 183 So. 2d 645, 1966 Miss. LEXIS 1432 (Miss. 1966).

The statute as amended has the effect of requiring that objections to an issue of school bonds shall be heard in validation proceedings, whether or not the order of the board of supervisors overruling such objections is appealed from. In re Validation of $250,000 School Bonds, 246 Miss. 470, 150 So. 2d 412, 1963 Miss. LEXIS 467 (Miss. 1963).

This section [Code 1942, § 1195] provides an adequate remedy at law precluding an injunction against an order denying a request to rezone property. Highland Village Land Co. v. Jackson, 243 Miss. 34, 137 So. 2d 549, 1962 Miss. LEXIS 310 (Miss. 1962).

From the nature of the judgments and decisions of the various boards mentioned in this section [Code 1942, § 1195], persons who are not parties may have a direct pecuniary or other interest in such judgment or decision. Ridgway v. Scott, 237 Miss. 400, 114 So. 2d 844, 1959 Miss. LEXIS 484 (Miss. 1959).

Where following a published notice of a hearing at which no one appeared and protested, the board of supervisors adopted a resolution finding a need for housing authority to function, and no appeal was taken from the board’s adopted resolution, which was legal on its face, a collateral attack upon the resolution in the form of a proceeding to enjoin the board of supervisors from acting under the Housing Authority Act was not maintainable. Biloxi-Pascagoula Real Estate Board v. Mississippi Regional Housing Authority, 231 Miss. 89, 94 So. 2d 793, 1957 Miss. LEXIS 492 (Miss. 1957).

Where, following the time when it became publicly known that the board of supervisors and the housing authority were attempting to apply for loans, the complainant without avail appeared before the board and asked it to rescind its prior action declaring the need for the authority, and the approval of the application for preliminary loans, but took no appeal to the circuit court, the board’s action was not subject to a collateral attack by a suit to enjoin it from proceeding under the Housing Authority Act. Biloxi-Pascagoula Real Estate Board v. Mississippi Regional Housing Authority, 231 Miss. 89, 94 So. 2d 793, 1957 Miss. LEXIS 492 (Miss. 1957).

Where objectors to a school bond issue charged that a large majority of the petitioners would not have signed the petition had they known that the proposed issue would raise their taxes, it was their duty to appeal to the circuit court from a decision of the board of supervisors and in absence of such an appeal the objection constitutes a collateral attack and is too late. In re Magee Consol. School Bonds, 212 Miss. 454, 54 So. 2d 664, 1951 Miss. LEXIS 469 (Miss. 1951).

Right to appeal from refusal of board of supervisors to levy tax for school district is not a “speedy remedy” within meaning of Code 1942, § 1109, so as to bar issuance of writ of mandamus. State ex rel. Chatham v. Bd. of Supervisors, 209 Miss. 79, 46 So. 2d 73, 1950 Miss. LEXIS 363 (Miss. 1950).

Statute (Code 1942, § 2932) relating to allowance of claims against county is not the only statutory provision authorizing an appeal to the circuit court from disallowance of a claim by county board of supervisors, since this section [Code 1942, § 1195] is the general statute providing for such an appeal. Board of Supervisors v. Jones, 199 Miss. 373, 24 So. 2d 844, 1946 Miss. LEXIS 206 (Miss. 1946).

Sheriff’s claim presented to county board of supervisors for entering, returning and serving the road overseer’s commission, for services required of the sheriff by the board of supervisors for which no fees were fixed, and for executing decrees, judgments, orders of process of the Supreme Court, chancery court or board of supervisors, was not required to be accompanied by any evidence of performance or delivery of services to an amount equal to the compensation claimed, irrespective of whether Code 1942, § 2932 or this section [Code 1942, § 1195] was applicable to the presentation of such claim. Board of Supervisors v. Jones, 199 Miss. 373, 24 So. 2d 844, 1946 Miss. LEXIS 206 (Miss. 1946).

Adjudication of county board of supervisors as to sufficiency of signatures to petition for an election to determine whether traffic in light wines and beer should be excluded from county, was interlocutory, and entire cause, including that issue, must on pertinent and competent protest be adjudicated by the board upon trial after the election before the final judgment could be entered in the case. Costas v. Board of Sup'rs, 198 Miss. 440, 22 So. 2d 229, 1945 Miss. LEXIS 213 (Miss. 1945).

This section [Code 1942, § 1195] (Code 1906, § 80) gives right of appeal to any person aggrieved by a judgment or decision of a board of supervisors and requires that bill of exceptions embodying the facts as duly presented shall be signed by the person acting as president of the board. Wilkinson County v. Tillery, 122 Miss. 515, 84 So. 465, 1920 Miss. LEXIS 451 (Miss. 1920).

Code 1906, § 81 (Code 1942, § 1196), applies specifically to all appeals relating to taxes, while this section [Code 1942, § 1195] (Code 1906, § 80) applies to all other cases. Kuhn Bros. v. Warren County, 98 Miss. 879, 54 So. 442, 1910 Miss. LEXIS 137 (Miss. 1910).

This section [Code 1942, § 1195] (Code 1892, § 79) allows appeal from board of supervisors to the circuit court for final judgment there. Section 85 (Code 1942, § 1201), limits appeals from circuit court to cases where amount in controversy exceeds $50 if originating in courts of justices of the peace. There is no such limitation as to boards of supervisors, and § 93 (Code 1942, § 1210) allows board to appeal from a judgment without bond. Marshall County v. Rivers, 88 Miss. 45, 40 So. 1007, 1906 Miss. LEXIS 153 (Miss. 1906).

This section [Code 1942, § 1195] applies to appeals generally from judgments of boards of supervisors, while Code 1906 § 81 (Code 1942, § 1196) regulates appeals relating to assessments of property for taxation. Jennings v. Board of Sup'rs, 79 Miss. 523, 31 So. 107 (Miss. 1901).

2. Rules of Civil Procedure.

The Rules of Civil Procedure do not replace the statute. Bowling v. Madison County Bd. of Supervisors, 724 So. 2d 431, 1998 Miss. App. LEXIS 952 (Miss. Ct. App. 1998).

3. Bill of exceptions in general.

Property owner’s filing of the bill of exceptions in the circuit court did not deprive that court of subject-matter jurisdiction because the supreme court intended its holding that the ten-day deadline contained in the statute applied to the filing of the bill of exceptions with the clerk of the county or municipal board to apply prospectively rather than retroactively; the owner’s appeal before the court of appeals was pending when the supreme court made the holding. Wirtz v. Adams Cty. Bd. of Supervisors, 278 So.3d 1170, 2019 Miss. App. LEXIS 156 (Miss. Ct. App. 2019).

Circuit court properly dismissed a property owner’s appeal because the owner’s bill of exceptions was fatally defective for failing to provide a sufficient record, and the owner refused to amend the bill of exceptions to include the minutes of the board of supervisors; meeting minutes of a board of supervisors constituted relevant material necessary for a sufficient record on appeal because public boards spoke and acted solely through their meeting minutes. Wirtz v. Adams Cty. Bd. of Supervisors, 278 So.3d 1170, 2019 Miss. App. LEXIS 156 (Miss. Ct. App. 2019).

Circuit court was limited to determining whether the city council, based on the evidence contained in the bill of exceptions, had erred in approving the city’s application to use property as a recreation center because the circuit court was acting as an appellate court on review of a bill of exceptions challenging the decision or judgment of a municipal authority. Barrett v. City of Gulfport, 196 So.3d 905, 2016 Miss. LEXIS 164 (Miss. 2016).

In a case in which a losing candidate for mayor challenged the municipal election commission’s decision to place the winning candidate’s name on the ballot, the circuit court did not have jurisdiction to hear the losing candidate’s challenge via a writ of mandamus. The appropriate procedural mechanism for challenging the commission’s decision was through a bill of exceptions under Miss. Code Ann. §11-51-75. Powell v. Mun. Election Comm'n, 156 So.3d 250, 2014 Miss. LEXIS 601 (Miss. 2014).

Trial court was without jurisdiction to review a property owner’s claim that a town’s destruction of the owner’s property was an unconstitutional taking because the owner failed to perfect the owner’s appeal from the town board of alderman’s decision to demolish the owner’s warehouse as a public nuisance in that the owner failed to comply with Miss. Code Ann. §11-51-75, by not embodying the facts and proceedings below in a proper bill of exceptions. Carthan v. Patterson, 134 So.3d 374, 2014 Miss. App. LEXIS 130 (Miss. Ct. App. 2014).

Bill of exceptions did not comply with the procedural requirements set forth in Miss. Code Ann. §11-51-75 because it did not contain the mayor’s signature, and a city also failed to comply with the requirements because, rather than noting the portions of the resident’s bill of exceptions that it deemed incorrect and allowing him to amend it, it filed its own bill of exceptions; however, the court of appeals did not dismiss for lack of subject matter jurisdiction the resident’s appeal of a decision of the city’s board of aldermen because the bills of exceptions contained the pertinent and important facts and documents and constituted a record upon which the court of appeals could intelligently act. McKee v. City of Starkville, 97 So.3d 97, 2012 Miss. App. LEXIS 480 (Miss. Ct. App. 2012).

Circuit court lacked jurisdiction over a high school’s attempted appeal of an expulsion decision by a school board because the student’s bill of exceptions lacked the signature of the school board president and, as such, the bill of exceptions did not comply with Miss. Code Ann. §§37-7-115 and11-51-75. M.L.R. v. Pontotoc City Sch. Dist. Bd. of Trs., 46 So.3d 874, 2010 Miss. App. LEXIS 597 (Miss. Ct. App. 2010).

Plaintiff property owner was not seeking to overturn a decision to condemn his property or destroy his property, he was asserting his right to constitutional protections, so his failure to file his notice of appeal and bill of exceptions was not dispositive in this case. Pearson v. City of Louisville, 2008 U.S. Dist. LEXIS 89580 (N.D. Miss. Nov. 4, 2008).

Where the circuit court dismissed a company’s challenge to the City’s decision to award a sewer improvement project to the second lowest bidder, the circuit court did not err by not including a news release as part of the record showing that the second lowest bidder had been fined extensively for safety violations which resulted in the death of one of its employees because the press release was not included in the bill of exceptions. Nelson v. City of Horn Lake, 968 So. 2d 938, 2007 Miss. LEXIS 636 (Miss. 2007).

District court found a part of an ordinance intended to regulate businesses providing nude exotic dancing but that restricted other sexual conduct, was both overbroad and in conflict with other parts of the ordinance; time periods in the statute were also in need of amendment, and the statutory procedure for filing a bill of exceptions on judicial appeal required to be followed. Freelance Entm't, LLC v. Sanders, 280 F. Supp. 2d 533, 2003 U.S. Dist. LEXIS 21831 (N.D. Miss. 2003).

Dismissal of property owner’s attempted appeal of the county board of supervisors’ denial of the property owner’s request for a conditional use permit was error as the property owner was not obligated to file a bill of exceptions within the statutory time period for filing an appeal in order to confer subject matter jurisdiction on the trial court as the statute only required that a pleading be filed indicating an intent to appeal, which the property owner filed, and that the bill of exceptions be filed within a reasonable time as it was necessary to decide the appeal. Bowen v. DeSoto County Bd. of Supervisors, 850 So. 2d 1156, 2002 Miss. App. LEXIS 324 (Miss. Ct. App. 2002), aff'd, 852 So. 2d 21, 2003 Miss. LEXIS 357 (Miss. 2003).

Even if a school board held a secret meeting for the purpose of rendering impossible a timely appeal, the plaintiff’s failure to file a bill of exceptions was fatal to the appeal; further, even if the plaintiff did all he could to obtain execution of a tendered bill of exceptions, but his efforts were refused by the school board, he should have proceeded by mandamus to compel signature. Prisock v. Perkins, 1998 Miss. LEXIS 633 (Miss. Dec. 31, 1998), op. withdrawn, sub. op., 735 So. 2d 440, 1999 Miss. LEXIS 162 (Miss. 1999).

The bill of exceptions required by §11-51-75 is necessary to vest the circuit court with subject matter jurisdiction in all appeals from boards of supervisors, regardless of the issues presented. (Overruling Evans v. Sharkey County, 89 Miss 302, 42 So 173 (1906)). Thus, the failure to obtain and file a bill of exceptions as prescribed by §11-51-75 was fatal to an appeal prosecuted under §65-7-67. McIntosh v. Amacker, 592 So. 2d 525, 1991 Miss. LEXIS 961 (Miss. 1991).

Neither the circuit court nor the Supreme Court had the authority to consider a county supervisor’s attempted appeal from an order of the board of supervisors finding that he had removed himself from his district and declaring his office vacant under the authority of §25-1-59, where the supervisor filed a notice of appeal to the circuit court but failed to file a bill of exceptions as required by §11-51-75. Moore v. Sanders, 569 So. 2d 1148, 1990 Miss. LEXIS 445 (Miss. 1990).

In the absence of a bill of exceptions a circuit court had no jurisdiction to reverse the action of the board of supervisors pertaining to a lease of certain 16th section lands. Cox v. Board of Supervisors, 290 So. 2d 629, 1974 Miss. LEXIS 1716 (Miss. 1974).

A bill of exceptions which embodies the facts and the decision of the city council on a petition to rezone property, and is signed by the mayor, is sufficient to confer jurisdiction on the circuit court despite the fact that a copy of the actual ordinance formally setting forth the council’s decision was omitted from the bill. Weathersby v. Jackson, 226 So. 2d 739, 1969 Miss. LEXIS 1314 (Miss. 1969).

On appeal to the circuit court from an order of the board of supervisors of Neshoba county directing issuance of bonds in the amount of $40,000 for the benefit of a high school, the circuit court had authority to hear and determine the matter only on the case as presented by the bill of exceptions as an appellate court, and hence the court was correct in refusing to permit the introduction of evidence on the hearing of the cause. East Neshoba Vocational High School Bonds v. Board of Sup'rs, 213 Miss. 146, 56 So. 2d 394, 1952 Miss. LEXIS 343 (Miss. 1952).

Where a bill of exceptions in an appeal from an order of the Board of Supervisors, adjudicating all the necessary jurisdictional facts to entitle the Board to issue bonds on behalf of a Consolidated School District, undertook to recite the matters and things which had transpired at the meeting at which the order had been made, by setting forth the objections made at the meeting and averring facts in conflict with the express adjudications contained in the order, but failed to state the grounds on which the judgment appealed from had been entered, as required by statute in case of appeal, the order appealed from, which was attached to the bill of exceptions as an exhibit and made a part thereof by statute, was affirmed. Adcock v. Board of Sup'rs, 191 Miss. 379, 2 So. 2d 556, 1941 Miss. LEXIS 137 (Miss. 1941).

That order disallowing city’s claim for road taxes collected by county was not entered on minutes of board of supervisors and embodied in bill of exceptions held not to deprive circuit court of jurisdiction of appeal therefrom on bill of exceptions, where record contained agreement by parties reciting that claim was rejected. Grenada County v. Grenada, 168 Miss. 68, 150 So. 655, 1933 Miss. LEXIS 179 (Miss. 1933).

Thirty days within which to procure signing of bill of exceptions after adjournment of term of board of supervisors held not unreasonable time. Board of Sup'rs v. Stephenson, 160 Miss. 372, 134 So. 142, 1931 Miss. LEXIS 182 (Miss. 1931).

“Next term” of circuit court, to which appeal from decision of board of supervisors must go, is term next after appeal has been perfected. Board of Sup'rs v. Stephenson, 160 Miss. 372, 134 So. 142, 1931 Miss. LEXIS 182 (Miss. 1931).

Bill of exceptions to order annexing territory to school district, with uncontroverted caption reciting that objectors were taxpayers of such territory, a statement of fact, sufficiently showed their interest to allow them to appeal. Brannan v. Board of Sup'rs, 141 Miss. 444, 106 So. 768, 1926 Miss. LEXIS 448 (Miss. 1926).

Without a bill of exceptions a circuit court has no jurisdiction of an appeal from a judgment of a board of supervisors disallowing a claim against a county and can only dismiss the appeal. Yandell v. Madison County, 79 Miss. 212, 30 So. 606, 1901 Miss. LEXIS 36 (Miss. 1901).

A bill of exceptions to the action of a board of supervisors must be taken and signed during the term, unless by consent or under an order of court, the time for preparing and perfecting it be extended into vacation. McGee v. Jones, 63 Miss. 453, 1886 Miss. LEXIS 121 (Miss. 1886); Board of Sup'rs v. Stephenson, 160 Miss. 372, 134 So. 142, 1931 Miss. LEXIS 182 (Miss. 1931).

4. —Signing bill of exceptions.

Given that the Supreme Court must resolve doubts in favor of constitutionality, it holds that Miss. Code Ann. §11-51-75 does not establish the signature requirement as a jurisdictional prerequisite; accordingly, as it does not exist in the statute, it cannot be an unconstitutional infringement upon the procedural prerogative of the Court, because the statute neither mandates nor forbids that the courts do anything whatsoever. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Bill of exceptions is, in and of itself, a jurisdictional requirement should an aggrieved party wish to appeal a decision of a county or municipal board. However, the long history of the Supreme Court of Mississippi’s opinions in bill of exceptions cases convinces it that a perfect bill of exceptions is not a jurisdictional requirement and, more narrowly, the signature of the president of the board is not a jurisdictional requirement. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Supreme Court of Mississippi clarifies Stewart v. City of Pascagoula, 206 So. 2d 325 (Miss. 1968), and Weathersby v. City of Jackson, 226 So. 2d 739 (Miss. 1969), and makes it clear that, fatal or not, an insufficient record does not rob the circuit court of jurisdiction as the term is properly understood. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Because the Supreme Court of Mississippi is unconvinced the Legislature never intended the signature requirement to be a jurisdictional prerequisite, and given the three operating principles for analyzing the signature requirement, the Supreme Court declines to find that the pertinent part of Miss. Code Ann. §11-51-75 is unconstitutional. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Resolving doubts in favor of the constitutionality of Miss. Code Ann. §11-51-75 leads to the conclusion, backed by several cases, that the Legislature did not intend the signature requirement to be a constitutional prerequisite. Therefore, it cannot be unconstitutional as such. Further, the Supreme Court of Mississippi clarifies that, although the bill of exceptions itself is a jurisdictional requirement for the circuit court to hear an appeal via §11-51-75, imperfections in it go to the adequacy of the record to decide the excepted issues rather than the authority of the court to hear the appeal. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Supreme Court of Mississippi overrules the holding in Bowen v. DeSoto County Board of Supervisors, 852 So. 2d 21, 24 (¶ 9) (Miss. 2003), that the bill of exceptions is nothing more than an optional vehicle for transmitting the record to the circuit court and that some other filing, such as a notice of appeal, can suffice to confer jurisdiction there. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

In order to restore fairness and sensibility to the bill of exceptions process, the Supreme Court of Mississippi holds that, going forward, the 10-day deadline contained in Miss. Code Ann. §11-51-75 applies to the filing of the bill of exceptions with the clerk of the county or municipal board. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Taxpayer’s failure to obtain the signature of the board of supervisor’s president, standing alone, did not deprive the circuit court of jurisdiction to review a taxpayer’s challenge to the board’s failure to comply with the mandatory statutory notice requirements. Tunica Cty. Bd. of Supervisors v. HWCC-Tunica, LLC, 237 So.3d 115, 2017 Miss. LEXIS 458 (Miss. 2017).

When the appellant signed the bill of exceptions, he essentially waived an issue that was not included in the bill and agreed that it would not be considered on appeal. Van Meter v. City of Greenwood, 724 So. 2d 925, 1998 Miss. App. LEXIS 988 (Miss. Ct. App. 1998).

Signature of the bill of exceptions by the attorney for an appellant city does not meet this requirement. City of Jackson v. Varia, Inc., 241 Miss. 705, 133 So. 2d 16, 1961 Miss. LEXIS 386 (Miss. 1961).

On appeal from the adoption by a city of a re-zoning ordinance, the mayor may not arbitrarily refuse to sign a bill of exceptions on the ground that it is incorrect, but should sign it with corrections. Reed v. Adams, 236 Miss. 333, 111 So. 2d 222, 1959 Miss. LEXIS 323 (Miss. 1959).

The officer by whom bill of exceptions is to be signed is without discretion in the matter. Koestler v. Dallas Tank Co., 234 Miss. 112, 107 So. 2d 361 (1958).

A bill of exceptions to a decision of municipal authorities is properly signed by successor in office of the mayor at the time of decision, the latter having refused to sign. Koestler v. Dallas Tank Co., 234 Miss. 112, 107 So. 2d 361 (1958).

The act of the president of a Board of Supervisors, in signing a bill of exceptions to the Board’s order for the issuance of school bonds, was an acknowledgment that the objections set out in the bill were in fact made by the persons who had appeared as objectors, but did not constitute an agreement that the facts therein recited were true. Adcock v. Board of Sup'rs, 191 Miss. 379, 2 So. 2d 556, 1941 Miss. LEXIS 137 (Miss. 1941).

When bill of exceptions is duly presented, it is the duty of the presiding officer to sign same. He has no discretion in the matter. Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, 1915 Miss. LEXIS 236 (Miss. 1915); Polk v. Hattiesburg, 110 Miss. 80, 69 So. 1005, 1915 Miss. LEXIS 19 (Miss. 1915).

Where bill of exceptions was not taken and signed during term of municipal board at which the order complained of was passed, and time was not extended, the mayor was correct in refusing to sign the bill. Hathorn v. Morgan, 107 Miss. 589, 65 So. 643, 1914 Miss. LEXIS 123 (Miss. 1914).

Only the president of the board of supervisors can sign a bill of exceptions upon appeals under this section [Code 1942, § 1195] and if he refuses he may be compelled by mandamus. Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93, 1900 Miss. LEXIS 132 (Miss. 1900).

Section 798, Code 1906, providing for all bills of exceptions to be signed by attorneys where the judge refuses to sign, does not apply to appeals under this section [Code 1942, § 1195]. Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93, 1900 Miss. LEXIS 132 (Miss. 1900).

When the bill is duly prepared and tendered to the president during the term, the exceptor will not be prejudiced because of the failure of that officer to sign it during the term. McGee v. Beall, 63 Miss. 455, 1886 Miss. LEXIS 122 (Miss. 1886).

5. Appeal bond.

Decision of Board of Supervisors that petition for tax levy was signed by majority of electors held final and appealable without bond. Moore v. Board of Sup'rs, 151 Miss. 671, 118 So. 349, 1928 Miss. LEXIS 330 (Miss. 1928).

The appeal provided for by this section [Code 1942, § 1195] can be prosecuted without bond. Monroe County v. Strong, 78 Miss. 565, 29 So. 530, 1900 Miss. LEXIS 170 (Miss. 1900).

6. Persons entitled to appeal.

Circuit court did not abuse its discretion in finding that the president of a downtown partnership had standing to challenge the city council’s rezoning decision where the relief sought by the president on behalf of the partnership would insure the benefit of the members of the association actually injured, i.e., the remaining property owners in the district. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

In an appeal under Miss. Code Ann. §11-51-75 by vendors of a city council’s decision to award a contract for the operation of a wastewater facility to a partnership, the circuit court properly denied the partnership’s motion to intervene because the partnership was not aggrieved and was neither a proper, necessary, nor indispensible party. City of Jackson v. United Water Servs., 47 So.3d 1160, 2010 Miss. LEXIS 602 (Miss. 2010).

Mississippi Supreme Court adopted the federal test for associational standing; under that test, the Supreme Court found that the trial court erred in dismissing the manufactured housing association’s bill of exceptions regarding the adoption of a zoning ordinance and map restricting manufactured housing developments in the city for lack of standing by the association because (1) one of the association’s members owned property and managed a retail manufacturing housing center in the city; (2) the zoning decision would have a direct negative economic impact on any member of the association that sold manufactured homes in the city because their buyer’s market would be diminished; and (3) the association’s challenge to the city’s zoning restrictions was of importance to the association’s members. Miss. Manufactured Hous. Assn v. Bd. of Aldermen, 870 So. 2d 1189, 2004 Miss. LEXIS 362 (Miss. 2004).

Statute outlined the proper procedure to appeal when someone was aggrieved by a decision of a municipality; it did not in any way confer standing. Burgess v. City of Gulfport, 814 So. 2d 149, 2002 Miss. LEXIS 142 (Miss. 2002).

The appellant was not a person aggrieved by a judgment or decision of the board where it sought review of the board’s order calling for a special election as an election had yet to be held and the board had declined to act unilaterally on the appellant’s petition. Miss. Waste of Hancock County, Inc. v. Bd. of Supervisors, 818 So. 2d 326, 2001 Miss. LEXIS 43 (Miss. 2001).

Any court in state sitting as appellate court has inherent authority to allow additional parties to participate in appeal upon timely application or upon court’s invitation, and upon timely application any such third party should be permitted to intervene if that party claims interest relating to property or transaction which is subject of appeal and is so situated that disposition of appeal may as practical matter impair or impede his ability to protect that interest, unless that party’s interest is adequately represented by existing party; parties other than original parties to appeal may participate in appellate process by filing amicus curiae at request of court or by leave of court; motion for leave to file amicus brief should demonstrate (1) amicus has interest in some other case involving similar question, or (2) counsel for a party is inadequate or brief insufficient, or (3) there are matters of fact or law which might otherwise escape court’s attention, or (4) amicus has substantial legitimate interests that will likely be affected by outcome of case and which interest will not be adequately protected by those already parties. Cooper v. Picayune, 511 So. 2d 922, 1987 Miss. LEXIS 2677 (Miss. 1987).

Community improvement association may have standing to appeal from decision of board of supervisors or municipal authorities, by falling within category of “persons aggrieved,” on showing extent of interest, adverse effect, participation of membership, and authority of association to act pursuant to its charter, by laws, and minutes. Belhaven Improv. Asso. v. Jackson, 507 So. 2d 41, 1987 Miss. LEXIS 2428 (Miss. 1987).

One not an abutting owner, who will be compelled by the closing of an alley to take a less direct route to his place of business, is not a “person aggrieved” by a determination of the city to close the alley, so as to be entitled to appeal therefrom. Hattisburg v. Colson, 236 Miss. 237, 109 So. 2d 868, 1959 Miss. LEXIS 312 (Miss. 1959).

Mortgagees of abutting lots are not “persons aggrieved” so as to have a right to appeal from the city’s determination to close an alley, unless the adequacy of their security will be impaired by such closing. Hattisburg v. Colson, 236 Miss. 237, 109 So. 2d 868, 1959 Miss. LEXIS 312 (Miss. 1959).

A foreign power and light company qualified to do business within the state which had a considerable investment in electric distribution lines in a county and the election district sought to be incorporated as an electric power district, was a person adversely affected by the order of the board of supervisors purporting to create a power district, and could appeal therefrom. Mississippi Power & Light Co. v. Mississippi Power Dist., 230 Miss. 594, 93 So. 2d 446, 1957 Miss. LEXIS 402 (Miss. 1957).

This section [Code 1942, § 1195] authorizes an appeal by any qualified elector and taxpayer from a decision of the board of supervisors ordering an election to determine as to the sale of intoxicating liquors in the county. Ferguson v. Board of Sup'rs, 71 Miss. 524, 14 So. 81, 1893 Miss. LEXIS 106 (Miss. 1893).

Any taxpayer may appeal from a decision allowing a claim against the county. Wilson v. Wallace, 64 Miss. 13, 8 So. 128, 1886 Miss. LEXIS 4 (Miss. 1886).

It is unnecessary that the appellant be a party to the record; he may show by evidence apart from the proceedings in the supervisors’ court that his right has thus been injured by said judgment. Deberry v. President & Selectmen of Holly Springs, 35 Miss. 385, 1858 Miss. LEXIS 39 (Miss. 1858).

7. Time for appeal.

Because a county board of supervisors filed a notice of appeal 96 days after a circuit court entered an order and opinion, reversing the board’s decision, the appellate court lacked jurisdiction as the appeal was untimely filed in that the board’s motion for rehearing in the circuit court, which was filed 11 days after the circuit court entered its judgment, did not toll the time for filing the notice of appeal. DeSoto Cty. v. Std. Constr. Co., — So.3d —, 2019 Miss. App. LEXIS 31 (Miss. Ct. App. Jan. 22, 2019), aff'd, in part, rev'd, — So.3d —, 2019 Miss. LEXIS 323 (Miss. Sept. 12, 2019).

Circuit court erred in dismissing the homeowners’ complaint challenging rezoning of nearby property as untimely under Miss. Code Ann. §11-51-75 where the published notice for the rezoning hearing lacked any mention of the parcels at issue, and as a result of that deficiency, §11-51-75 was not the exclusive remedy. Lee v. City of Byram, 269 So.3d 1194, 2018 Miss. App. LEXIS 403 (Miss. Ct. App. 2018).

Plain, unambiguous language of the statute counts the ten-day period from the date of the completed decision to be appealed. Pemberton Props. v. Mayor & Bd. of Aldermen, 224 So.3d 531, 2017 Miss. LEXIS 52 (Miss. 2017).

Circuit court properly dismissed rental-property owners’ complaint against a mayor and a city’s board of aldermen because the bill of exceptions was not timely presented; the appeal period for city ordinances began on the date an ordinance was adopted, and the owners’ bill of exceptions was presented to the city outside the ten-day period following the date of adoption. Pemberton Props. v. Mayor & Bd. of Aldermen, 224 So.3d 531, 2017 Miss. LEXIS 52 (Miss. 2017).

Wrongful termination case was properly dismissed due to failure to file a timely appeal, which was the exclusive remedy for a party aggrieved by a decision of a municipal authority; if an employee believed that the action of the board was unlawful, he was required to appeal its decision within 10 days. Williams v. City of Belzoni, 229 So.3d 171, 2017 Miss. App. LEXIS 126 (Miss. Ct. App. 2017).

Residents’ bill of exceptions was timely as to an appeal of the board’s subsequent order reconsidering its decision and issuing a new order that abandon the railroad crossing as it was filed within 10 days of the reconsideration decision. Lowndes Cnty. v. McClanahan, 161 So.3d 1052, 2015 Miss. LEXIS 193 (Miss. 2015).

As to a board of supervisors’ first order that abandoned a railroad crossing, the residents’ bill of exception was untimely under Miss. Code Ann. §11-51-75 as it was filed more than 10 days after the order was issued. Lowndes Cnty. v. McClanahan, 161 So.3d 1052, 2015 Miss. LEXIS 193 (Miss. 2015).

Although the residents, who did not file a timely appeal, claimed their right to appeal was preserved because the board effectively granted their motion for rehearing, case law held that the statute did not permit rehearings, and a timely appeal was the exclusive remedy. Lowndes County v. McClanahan, 161 So.3d 1091, 2014 Miss. App. LEXIS 228 (Miss. Ct. App. 2014), rev'd, 161 So.3d 1052, 2015 Miss. LEXIS 193 (Miss. 2015).

Residents did not file their appeal within 10 days of the adjournment of the meeting of the board; the appeal, having been filed under the statute, did not conform to the statute’s requirements. Lowndes County v. McClanahan, 161 So.3d 1091, 2014 Miss. App. LEXIS 228 (Miss. Ct. App. 2014), rev'd, 161 So.3d 1052, 2015 Miss. LEXIS 193 (Miss. 2015).

Complaint that was amended to include a claim under Miss. Code Ann. §11-51-75 (2002), which the trial court advised would provide for review of a decision of municipal authorities essentially disqualifying a candidate from a mayoral election, was properly dismissed. The claim was not made within ten days of the municipal authorities’ decision. Town of Terry v. Smith, 48 So.3d 507, 2010 Miss. LEXIS 567 (Miss. 2010).

Judgment for municipal authorities in a case filed by citizens over increases in trash collection fees was vacated. The case should have been dismissed for lack of jurisdiction because the citizens failed to perfect its appeal from the municipal authorities within the time limitations of Miss. Code Ann. §11-51-75 (2002) for such an appeal, in that the group had ten days from the end of the sessions during which the rate increases were made to appeal those increases, but they did not do so until two or more years later. Foster v. Edwards, 61 So.3d 960, 2011 Miss. App. LEXIS 251 (Miss. Ct. App. 2011).

Buyer’s appeal of the city’s decision not to sign his bill of exceptions was filed outside the ten-day period allowed by Miss. Code Ann. §11-51-75; pursuant to Miss. Code Ann. §21-15-33, the ten-day time period for appeal began when the city adjourned the meeting on September 11, 2007, after making a decision about the property. Rankin Group, Inc. v. City of Richland, 8 So.3d 259, 2009 Miss. App. LEXIS 142 (Miss. Ct. App. 2009).

Trial court properly dismissed property owners’ appeal of the denial of their rezoning petition because the petition to rezone was time-barred; the city council denied the owners’ petition to rezone on April 17, 2007, but the owners did not appeal to the trial court until May 3, 2007, clearly more than 10 days after the city council’s decision. Pruitt v. Zoning Bd. of the City of Laurel, 5 So.3d 464, 2008 Miss. App. LEXIS 613 (Miss. Ct. App. 2008).

Since the landowners’ appeal was not filed within 10 days from the day of adjournment of the board meeting, under Miss. Code Ann. §11-51-75 neither the circuit court, nor the appellate court had jurisdiction to consider the appeal; although the failure to file the appeal within 10 days determined the outcome of the landowners’ appeal, the landowners had not presented a proper bill of exceptions because the bill was not signed by the person acting as president of the board of supervisors or of the municipal authorities. Tilghman v. City of Louisville, 874 So. 2d 1025, 2004 Miss. App. LEXIS 506 (Miss. Ct. App. 2004).

Although the owner failed to file a bill of exceptions with his notice of appeal, it was not necessary to file the bill of exceptions within 10 days where the owner had timely and properly filed a notice of appeal, which was sufficient to vest jurisdiction; the owner could have a reasonable amount of time in which to file the bill of exceptions. Bowen v. DeSoto County Bd. of Supervisors, 852 So. 2d 21, 2003 Miss. LEXIS 357 (Miss. 2003), overruled, overruled in part, City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

Neighbor did not file his bill of exception until well beyond the time frame dictated by statute; as such, the filing was not timely and the circuit court was correct in dismissing the appeal with prejudice for failure to have subject matter jurisdiction. Lucas v. Williamson, 852 So. 2d 67, 2003 Miss. App. LEXIS 22 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 616 (Miss. 2003).

Trial court reached the correct result in granting judgment to the city, but erred in not dismissing the employee’s claim on jurisdictional grounds due to his failure to timely appeal the adverse decision of the city to terminate his services in accordance with Miss. Code Ann. §11-51-75 (2002); the employee had 10 days to appeal after the city board of aldermen failed to sustain a motion to take up the mayor’s veto of the employee’s reinstatement. McPhail v. City of Lumberton, 832 So. 2d 489, 2002 Miss. LEXIS 394 (Miss. 2002).

Final actions by municipal authorities or a board of supervisors was appealable under the statute, but an appeal had to be filed within the prescribed 10 days from the day of adjournment of the board of supervisors session, or the circuit court or appellate court will not have jurisdiction to consider the appeal. House v. Honea, 799 So. 2d 882, 2001 Miss. LEXIS 307 (Miss. 2001).

A mayor’s veto became final for purposes of perfecting an appeal on the date it was accepted by the board of aldermen and, consequently, an appeal filed within 10 days of that date was timely. City of Madison v. Shanks, 793 So. 2d 576, 2000 Miss. LEXIS 183 (Miss. 2000).

An appeal under the statute was filed in a timely manner where (1) the mayor issued a veto which was filed with the city clerk on June 27, (2) the board of aldermen accepted the veto and refused to override it on August 2, and (3) the appeal was filed on August 12. The veto became effective on August 2, rather than on June 27, and the appeal was filed within 10 days thereafter. City of Madison v. Shanks, 793 So. 2d 576, 2000 Miss. LEXIS 183 (Miss. 2000).

A bill of exceptions was properly before the Circuit Court in an action concerning an appeal of the decision of a county commission and board to sell real property owned by the county; although the transaction did in fact substitute one parcel of property for another parcel, it was nevertheless a conveyance evidenced by a special warranty deed which was directly challenged by the bill of exceptions, and the fact that the plaintiff did not properly appeal the previous sale of land was irrelevant since it challenged the latter decision within 10 days as required by the statute. Coast Materials Co. v. Harrison County Dev. Comm'n, 730 So. 2d 1128, 1998 Miss. LEXIS 632 (Miss. 1998).

The ten-day period for an appeal of a decision by the defendant board of aldermen did not begin when the board awarded a contract to a competitor of the plaintiff, but on the later date when the board received requisite approvals from the Mississippi Department of Transportation and the Federal Highway Commission. J. H. Parker Constr. Co. v. Board of Aldermen, 721 So. 2d 671, 1998 Miss. App. LEXIS 630 (Miss. Ct. App. 1998).

Heavy equipment vendor’s action against a county board of supervisors which was timely filed in the chancery court, but later transferred to the circuit court, would be deemed to have been timely filed in the circuit court. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

Since a city utilities commission was not a municipal authority, the vacation pay cause of one of its employees should not have been dismissed on the ground that the employee had failed to appeal within 10 days of the adjournment date of the commission’s regular meeting. Robinson v. Utilities Com. of Columbus, 487 So. 2d 827, 1986 Miss. LEXIS 2439 (Miss. 1986).

A bill of exceptions filed on June 13, 1980, to challenge a rezoning of certain property was not untimely where, although the Mayor and Board of Aldermen voted on May 6, 1980, to reclassify the property, the rezoning ordinance did not become effective until written, signed and formally adopted on June 3, 1980, at which time the ten-day appeal period commenced to run. City of Oxford v. Inman, 405 So. 2d 111, 1981 Miss. LEXIS 2242 (Miss. 1981).

Order of board of supervisors, adjudicating sufficiency of petitions for election and providing for election to exclude traffic in light wines and beer in the county, was an interlocutory order and not a final order, requiring appeal therefrom within ten days in order to question sufficiency of petitions. Costas v. Board of Sup'rs, 196 Miss. 104, 15 So. 2d 365, 1943 Miss. LEXIS 6 (Miss. 1943).

Although board of supervisors was acting judicially in adjudicating sufficiency of petitions for election and providing for election to exclude traffic in light wines and beer in county, it did not complete its judicial functions in regard to such matter, as regards appeal therefrom, until the election was held and it adjudicated that notice of the election stated the proposition to be voted on, that it was published as required by law and that the election had been conducted according to law in all other respects. Costas v. Board of Sup'rs, 196 Miss. 104, 15 So. 2d 365, 1943 Miss. LEXIS 6 (Miss. 1943).

Final order of board of supervisors from which appeal will lie in the exclusion of light wines and beer in the county is the order showing affirmatively an adjudication as to the sufficiency of the notice of the election and publication according to law, that the notice contained a statement of the proposition to be voted on at the election, and that the report of the election commissioners disclosed that a majority of those voting in the election had voted in favor of the exclusion. Costas v. Board of Sup'rs, 196 Miss. 104, 15 So. 2d 365, 1943 Miss. LEXIS 6 (Miss. 1943).

The board is the only tribunal empowered to take the initiative action necessary to the lawful establishment of a stock law. Until such action is taken no appeal properly lies. Bailey v. Delta Electric Light, Power & Mfg. Co., 86 Miss. 634, 38 So. 354, 1905 Miss. LEXIS 44 (Miss. 1905).

A creditor of a county has no access to the circuit court until after his claim has been rejected by the supervisors; if the board disallow his claim he can appeal or he may sue directly in any court of competent jurisdiction. Board of Supervisors v. Brookhaven, 51 Miss. 68, 1875 Miss. LEXIS 13 (Miss. 1875); Taylor v. Marion County, 51 Miss. 731, 1875 Miss. LEXIS 100 (Miss. 1875).

8. Particular matters as appealable.

Appeals from the initial extension of an option agreement and the conveyance of city property were timely under Miss. Code Ann. §11-51-75 because both actions extended beyond an earlier resolution and option agreement. Ball v. Mayor & Bd. of Aldermen, 983 So. 2d 295, 2008 Miss. LEXIS 184 (Miss. 2008).

A mayor’s veto is an appealable action of a municipal authority as contemplated by the statute. City of Madison v. Shanks, 793 So. 2d 576, 2000 Miss. LEXIS 183 (Miss. 2000).

In action by registered voters against county board of supervisors alleging that board violated due process right by refusing to hold election on bond issues, refusal did not rise to level of constitutional deprivation, and even if board members, as alleged, improperly eliminated signatures on plaintiffs’ protest petition or viewed required number of signatures too restrictively, proper avenue for such claims was through state election procedures, not action in federal court. Thrasher v. Board of Supervisors, 765 F. Supp. 896, 1991 U.S. Dist. LEXIS 7289 (N.D. Miss. 1991).

Statute, directing that appeals from judgments or decisions of municipal authorities are to be taken to Circuit Court, provided exclusive remedy for plaintiff, seeking declaratory and injunctive relief and alleging election regarding use, possession and sale of alcoholic beverages within city was without legal authority, and thus, Chancery Court lacked subject matter jurisdiction over plaintiff’s action, even though election was not complete before plaintiff filed complaint, where remedy from city’s action of holding election was provided for in Circuit Court. Benedict v. City of Hattiesburg, 693 So. 2d 377, 1997 Miss. LEXIS 161 (Miss. 1997).

Any act of county or municipality leaving party aggrieved is appealable to circuit court when all issues of controversy are finally disposed of by order of city council. Garrard v. City of Ocean Springs, 672 So. 2d 736, 1996 Miss. LEXIS 135 (Miss. 1996).

City council’s decision to transfer property to park commission was appealable; order was final resolution of controversy as to disposition of property. Garrard v. City of Ocean Springs, 672 So. 2d 736, 1996 Miss. LEXIS 135 (Miss. 1996).

Any act of a county or municipality which leaves a party aggrieved is appealable under §11-51-75, which provides for appeal from a “judgment or decision” of the board of supervisors or municipal authorities of a city, town or village, where all issues of the controversy are finally disposed of by order of the city council. Thus, a city council’s award of a lease contract for golf carts was an appealable action under §11-51-75. South Cent. Turf, Inc. v. Jackson, 526 So. 2d 558, 1988 Miss. LEXIS 290 (Miss. 1988).

The circuit court acted within its jurisdiction in reversing a rezoning ordinance of the city of Oxford which rezoned 8.33 acres from agricultural to multi-family residential and such decision of the circuit court would be affirmed where the building of low-rent housing and a recreational facility as well as a road expansion had been changes in accordance with the original zoning plan and where there had been no concrete evidence of public need for housing on the 8.33 acres sought to be rezoned, but only testimony that there was generally a public need for multi-family dwellings in the city. City of Oxford v. Inman, 405 So. 2d 111, 1981 Miss. LEXIS 2242 (Miss. 1981).

Order prescribing hours of opening and closing of places for sale of beer or wine outside the municipality in the county, under Code 1942, § 10224, is appealable under this section [Code 1942, § 1195]. Board of Sup'rs v. McCormick, 207 Miss. 216, 42 So. 2d 177, 1949 Miss. LEXIS 331 (Miss. 1949).

Order of board of supervisors excluding traffic in light wines and beer pursuant to election had is a final order from which an appeal lies. Costas v. Board of Sup'rs, 196 Miss. 104, 15 So. 2d 365, 1943 Miss. LEXIS 6 (Miss. 1943).

Order of county board of supervisors providing for election to determine whether sales of beer and light wines should be abolished held appealable by certiorari. Mohundro v. Board of Sup'rs, 174 Miss. 512, 165 So. 124, 1936 Miss. LEXIS 194 (Miss. 1936).

Issues arising under law relating to objections to improvements by majority of property owners are appealable. Faison v. Indianola, 156 Miss. 872, 127 So. 558, 1930 Miss. LEXIS 232 (Miss. 1930).

Decision of board of supervisors denying petitioners for increase in school tax right to withdraw, can be questioned only on an appeal to the circuit court. Havens v. Brown, 132 Miss. 747, 96 So. 405, 1923 Miss. LEXIS 59 (Miss. 1923).

This section [Code 1942, § 1195] has no application to an appeal to the circuit court from the judgment of municipal authorities changing the boundaries of a municipality. Yerger v. Greenwood, 77 Miss. 378, 27 So. 620, 1899 Miss. LEXIS 89 (Miss. 1899).

9. Questions presented for review.

Decision to reverse the denial of a petition for rezoning from residential to commercial under Miss. Code Ann. §11-51-75 was reversed on appeal because the issue of whether a change in the community had occurred was fairly debatable, and there was no evidence that the decision was arbitrary, capricious, or unsupported by substantial evidence; as such, the trial court overreached the applicable standard of appellate review of a decision from a mayor and board of aldermen. Mayor & Bd. of Alderman v. Estate of Lewis, 2006 Miss. App. LEXIS 887 (Miss. Ct. App. Nov. 28, 2006).

An appeal from a board of supervisors or city by a bill of exceptions is an appeal to an appellate court, and the circuit court is bound by the record made before the board. Thornton v. Wayne County Election Com., 272 So. 2d 298, 1973 Miss. LEXIS 1528 (Miss. 1973); Tally v. Board of Supervisors, 323 So. 2d 547, 1975 Miss. LEXIS 1566 (Miss. 1975).

Where a determinative vote on a resolution, directing the dismissal of the city’s suit to recover losses resulting from budget excesses, illegal expenditures and failure to keep proper records by officials of the city, was cast by one of the officials sued, the resolution was void, not only as to the voting city official but as to the other defendant as well. Freidhof v. Biloxi, 232 Miss. 20, 97 So. 2d 742, 1957 Miss. LEXIS 440 (Miss. 1957).

Appeal from decision of Board of Supervisors on legislative or administrative matters is within the contemplation of this section [Code 1942, § 1195] but such appeal is limited to whether or not the order is reasonable and proper or is arbitrary or capricious, or beyond the power of the board to make, or whether it violates any constitutional right of the complaining party. Board of Sup'rs v. McCormick, 207 Miss. 216, 42 So. 2d 177, 1949 Miss. LEXIS 331 (Miss. 1949).

In proceeding to close road, where question whether road was private rather than public road was not raised or passed upon by county board of supervisors or circuit court, issue could not be considered in Supreme Court. Byrd v. Board of Sup'rs, 179 Miss. 889, 176 So. 910 (Miss. 1937).

10. Proceedings on appeal.

In an election contest filed by a mayor’s opponent, the mayor’s certification of a bill of exceptions did not estop the mayor from raising legal arguments on appeal not found in the bill of exceptions because the mayor’s certification did not confess the opponent’s legal arguments. McAdams v. Perkins, 204 So.3d 1257, 2016 Miss. LEXIS 506 (Miss. 2016).

Circuit court sitting as an appellate court under Miss. Code §11-51-75 has no power to grant an injunction; if it is necessary to delay implementation of a municipality’s order pending the circuit court’s ruling on a bill of exceptions, the proper remedy is issuance of a stay under Miss. R. Civ. P. 62. Falco Lime, Inc. v. Mayor & Aldermen of Vicksburg, 836 So. 2d 711, 2002 Miss. LEXIS 314 (Miss. 2002).

A city was not entitled to a jury trial in the Circuit Court where the court was sitting as an appellate court pursuant to §11-51-75 and where the cause of action at issue derived from statutory, rather than common, law. City of Durant v. Laws Constr. Co., 721 So. 2d 598, 1998 Miss. LEXIS 391 (Miss. 1998).

The Circuit Court, sitting as an appellate court pursuant to the statute, without a jury, may award and determine compensatory damages and attorney’s fees. City of Durant v. Laws Constr. Co., 721 So. 2d 598, 1998 Miss. LEXIS 391 (Miss. 1998).

A circuit court order remanding a rezoning case to the city council for a determination of the number and percentage of eligible property owners who protested the zoning change and ordering that a report of its findings and conclusions be filed with the court clerk to become part of the record was not intended to constitute a final judgment contemplated by §11-51-75, but, rather, the circuit court, sitting as an appellate court, retained jurisdiction pending record expansion and supplementation. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

Any court in state sitting as appellate court has inherent authority to allow additional parties to participate in appeal upon timely application or upon court’s invitation, and upon timely application any such third party should be permitted to intervene if that party claims interest relating to property or transaction which is subject of appeal and is so situated that disposition of appeal may as practical matter impair or impede his ability to protect that interest, unless that party’s interest is adequately represented by existing party; parties other than original parties to appeal may participate in appellate process by filing amicus curiae at request of court or by leave of court; motion for leave to file amicus brief should demonstrate (1) amicus has interest in some other case involving similar question, or (2) counsel for a party is inadequate or brief insufficient, or (3) there are matters of fact or law which might otherwise escape court’s attention, or (4) amicus has substantial legitimate interests that will likely be affected by outcome of case and which interest will not be adequately protected by those already parties. Cooper v. Picayune, 511 So. 2d 922, 1987 Miss. LEXIS 2677 (Miss. 1987).

An appeal cannot be heard on oral testimony by agreement of the parties, whether or not confined to witnesses examined before the municipal authorities. City of Greenwood v. Henderson, 84 Miss. 802, 37 So. 745, 1904 Miss. LEXIS 98 (Miss. 1904).

11. Disposition of appeal.

Trial court properly remanded to the board of supervisors to provide a caterer with a due-process hearing and to consider evidence to determine if its prior contract rescission was justified because a supplementation of the factual basis of the board’s justification after the hearing was required to allow for judicial review of the board’s decision. Howell v. Bd. of Supervisors, 179 So.3d 34, 2015 Miss. App. LEXIS 187 (Miss. Ct. App.), cert. denied, 178 So.3d 729, 2015 Miss. LEXIS 566 (Miss. 2015).

Circuit court properly ruled that a contractor’s appeal of the decision of a county board of supervisors to award a contract to another was moot because the circuit court gave the board an opportunity to decide that it would reject all previous bids and reopen the request-for-proposals process, and the board decided to reject all bids and reopen the request-for-proposals process; any error that resulted from the circuit court’s decision to remand for reconsideration of the matter by the board was harmless because the circuit court could have ordered the board to reject all bids and reopen the request-for-proposals process. Precision Communs., Inc. v. Hinds County, 74 So.3d 366, 2011 Miss. App. LEXIS 252 (Miss. Ct. App.), cert. denied, 73 So.3d 1168, 2011 Miss. LEXIS 548 (Miss. 2011).

County board of supervisors’ consideration of a local company’s promise to employ local residents and provide special services to the elderly in awarding a contract for solid waste disposal, when it had failed to include them in the request for proposals, was a violation of Miss. Code Ann. §31-7-13(r), requiring the bid process to be reinitiated. Because the remedy of reinitiating the bid process was authorized under §31-7-13, it was properly ordered under Miss. Code Ann. ’11-51-75. Preferred Transp. Co., LLC v. Claiborne County Bd. of Supervisors, 32 So.3d 549, 2010 Miss. App. LEXIS 170 (Miss. Ct. App. 2010).

The party relying on the 2/3 majority voting requirement of §17-1-17 has the burden of proving that 20 percent or more of the protesting landowners fit within the class of landowners outlined in the statute, and this showing must be made before the local governing body and not for the first time on appeal; thus, the circuit court’s remand of a rezoning case to the city council for the purpose of applying the enhanced voting requirements of §17-1-17 was unwarranted where the applicability of § 17-1-17 was not raised until the appeal was taken to the circuit court, and the circuit court erroneously placed upon the city council the burden of satisfying the requirements of § 17-1-17, as it was up to the protesting landowners to affirmatively show that they were within the statutory class who could validly object. City of Biloxi v. Hilbert, 597 So. 2d 1276, 1992 Miss. LEXIS 150 (Miss. 1992).

The manifest error doctrine did not apply to an appeal from a decision by the board of supervisors as the appellants had no access to a jury trial and, therefore, should not be held to the manifest error standard. Leigh v. Board of Supervisors, 525 So. 2d 1326, 1988 Miss. LEXIS 265 (Miss. 1988).

In a proceeding to review the discharge for cause of a fire fighter, the circuit court improperly modified the Civil Service Commission’s decision by entry of an addittur or remand to the commission, where, absent certain inadmissible judicially noticed statistical data erroneously considered by the Commission, the fire fighter’s evidence as to his earnings and what he reasonably should have earned was not substantially contradicted and therefore the circuit court should have reversed the Commission’s order and rendered the fire fighter a judgment for his back pay due him less the total of what, accordingly to relevant and properly adduced evidence, he earned and reasonably should have earned after he was terminated. Eidt v. Natchez, 421 So. 2d 1225, 1982 Miss. LEXIS 2276 (Miss. 1982).

The Circuit Court can only consider the case as made by the bill of exceptions, and if the bill is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, the court does not have a record upon which it can intelligently act and the appeal must be dismissed. Stewart v. Pascagoula, 206 So. 2d 325, 1968 Miss. LEXIS 1563 (Miss. 1968).

Where, upon appeal, the circuit judge correctly reversed the action of the mayor and board of supervisors in dismissing a petition asking that an election be held to determine whether or not beer could be lawfully sold in the city, it was error to fail to enter a judgment directing the mayor and the board of aldermen to call an election in accordance with Code 1942, § 10208.5. Lee County Drys v. Anderson, 231 Miss. 222, 95 So. 2d 224, 1957 Miss. LEXIS 508 (Miss. 1957).

An appeal from an order of the board of supervisors authorizing a loan prayed for and affirmed by a school board for the construction of a building and the repair of others should not have been dismissed, but should have been either affirmed or reversed. White v. Board of Supervisors, 192 Miss. 327, 5 So. 2d 233, 1941 Miss. LEXIS 34 (Miss. 1941).

Where one convicted in a mayor’s court appeals to the circuit court, but fails to appear, the court should dismiss the appeal and direct a procedendo to the mayor. Henning v. Greenville, 69 Miss. 214, 12 So. 559, 1891 Miss. LEXIS 119 (Miss. 1891).

If he appeals from such dismissal to the Supreme Court, he cannot assign for error defects in the affidavit, or complain that the circuit court refused in his absence to inquire into his guilt on the merits. Henning v. Greenville, 69 Miss. 214, 12 So. 559, 1891 Miss. LEXIS 119 (Miss. 1891).

12. Other remedies.

Trial court did not err in reversing a board’s decision denying a county’s request for a special exception and granting the request, as the board’s decision was not supported by substantial evidence and the court had the authority to implement the decision the board should have made. Mayor & Bd. of Aldermen v. Jefferson Davis County, 874 So. 2d 962, 2004 Miss. LEXIS 647 (Miss. 2004).

Inadequacy of the remedy at law is the basis upon which the power of injunction is exercised; an injunction will not issue when the complainants have a complete and adequate remedy by appeal. Thus, a county supervisor’s request for injunctive relief from the board of supervisor’s ruling that the county supervisor was no longer a resident of the electing district and declaring the office vacant, was properly denied since the statutory method of appeal to the circuit court under §11-51-75 afforded the county supervisor a plain, adequate, speedy, and complete remedy for a judicial determination of his right. Moore v. Sanders, 558 So. 2d 1383, 1990 Miss. LEXIS 154 (Miss. 1990).

Although persons aggrieved by the action or decision of municipal authorities may appeal pursuant to this section, it provided no authority for aggrieved persons to petition municipal authorities for rehearing a zoning ordinance adopted by the municipal authorities; thus, a city council had no authority to remand a petition to rezone property to its planning board for a rehearing after the city council had adopted an ordinance rezoning the property and after an appeal contesting the rezoning had been perfected in the circuit court. Gatlin v. Cook, 380 So. 2d 236, 1980 Miss. LEXIS 1826 (Miss. 1980), but see Griffin v. Armana, 679 So. 2d 1049, 1996 Miss. LEXIS 298 (Miss. 1996).

Where, following the entry of an order refusing a building permit for the construction of a building which would in all respects conform to the applicable laws, ordinances, and regulations, the city authorities failed for some 60 days to sign or file a bill of exceptions, the result was an unreasonable and unwarranted delay in the issuance of the permit, effectively depriving the applicants of a plain, speedy, adequate remedy in the ordinary course of law; and a writ of mandamus was properly granted directing the issuance of the permit. Thompson v. Mayfield, 204 So. 2d 878, 1967 Miss. LEXIS 1227 (Miss. 1967).

The remedy by a writ of prohibition does not lie where there is a plain, adequate and speedy remedy in the ordinary course of the law and a writ of prohibition will not be issued to an inferior court unless its attention has been called to the claimed lack or excess of jurisdiction. Wilby v. Board of Supervisors, 226 Miss. 744, 85 So. 2d 195, 1956 Miss. LEXIS 458 (Miss. 1956).

When board of supervisors, acting under Code 1942, § 6370, providing that on petition of majority of qualified electors residing in consolidated school district board may issue bonds for such district for purposes therein set out, rejects such petition for reasons it deems sufficient, or for no reason at all, without adjudicating necessary jurisdictional facts to exist, remedy of petitioners is appeal to circuit court under this section [Code 1942, § 1195] and not writ of mandamus under Code 1942, § 1109, on which appeal petitioners can obtain in circuit court adjudication of all jurisdictional facts which are alleged to have existed by having embodied such facts in bill of exceptions. Board of Sup'rs v. State, 205 Miss. 43, 38 So. 2d 314, 1949 Miss. LEXIS 410 (Miss. 1949).

Where election commissioners certified to a Board of Supervisors the essential matters necessary for the issuance of bonds of a school district, and had determined all the jurisdictional facts essential to the validity of the election, and the Board of Supervisors had found all the jurisdictional facts essential to the issuance of the bond and had directed their issuance and validation, the pendency of a mandamus suit in the circuit court was no bar to a validation proceeding in chancery court, where no appeal was taken from the order of the Board of Supervisors to the circuit court, a mandamus suit being no substitute for the appeal provided by statute. In re Validation of Bonds, 185 Miss. 864, 188 So. 318, 1939 Miss. LEXIS 168 (Miss. 1939).

Taxpayer instituting direct suit against municipality to recover privilege taxes abandoned statutory proceeding. Chassaniol v. Greenwood, 166 Miss. 770, 144 So. 548, 1932 Miss. LEXIS 309 (Miss. 1932).

It is the duty of persons claiming to have been illegally assessed to avail themselves of the statutory remedy before applying to a Federal court for relief. First Nat'l Bank v. Gildart, 64 F.2d 873, 1933 U.S. App. LEXIS 4241 (5th Cir. Miss.), cert. denied, 290 U.S. 631, 54 S. Ct. 50, 78 L. Ed. 549, 1933 U.S. LEXIS 616 (U.S. 1933).

Mandamus will not lie to compel board of supervisors to issue bonds for construction of roads, since this section [Code 1942, § 1195] (Code 1906, § 80) provides for an appeal to the circuit court. Robinson v. Board of Sup'rs, 105 Miss. 90, 62 So. 3, 1913 Miss. LEXIS 185 (Miss. 1913); Board of Sup'rs v. Lee, 147 Miss. 99, 113 So. 194, 1927 Miss. LEXIS 334 (Miss. 1927).

On rejection of claim by municipal authorities the claimant is entitled to bring an original suit, and is not bound to pursue the remedy prescribed by this section [Code 1942, § 1195]. Pylant v. Purvis, 87 Miss. 433, 40 So. 7, 1905 Miss. LEXIS 165 (Miss. 1905).

13. Standing.

Plaintiff citizens had no standing to seek redress for a city board’s illegal decision in rehiring a patrolman under Miss. Code Ann. §11-51-75 because they had not alleged an injury separate and apart from that suffered by other citizens. Aldridge v. West, 929 So. 2d 298, 2006 Miss. LEXIS 266 (Miss. 2006).

In the context of standing, while any person may file a complaint with the Mississippi Ethics Commission under Mississippi law, only local district attorneys, the Mississippi Attorney General, or the Commission itself may file direct actions in court challenging the ethical conduct of public officials. As a result, where the parents sought reversal of the confirmations of two school board members by the city council, alleging that certain council members were required to have recused themselves due to conflicts of interest, the parents were not “persons aggrieved” for purposes of Miss. Code Ann. §11-51-75, and they did not meet the statutory requirements to file a bill of exceptions under the facts presented; their sole remedy was to file a complaint with the Commission. City of Jackson v. Greene, 869 So. 2d 1020, 2004 Miss. LEXIS 337 (Miss. 2004).

14. Jurisdiction.

Circuit court properly dismissed a neighbor for lack of personal and subject-matter jurisdiction because the owner improperly added the neighbor as a party to his appeal; the circuit court lacked personal jurisdiction over the neighbor and lacked subject matter jurisdiction over the owner’s claims because the neighbor was not aggrieved by the board’s decision, and he never participated in the matter before the board. Wirtz v. Adams Cty. Bd. of Supervisors, 278 So.3d 1170, 2019 Miss. App. LEXIS 156 (Miss. Ct. App. 2019).

Because the time-bar in Miss. Code Ann. §11-51-75 was inapplicable to appellee, the trial court did not err in failing to dismiss for lack of jurisdiction. Appellee’s failure to appeal under §11-51-75 did not deprive the circuit court of jurisdiction because appellee was not provided adequate notice of the condemnation hearing. City of Jackson v. Jordan, 202 So.3d 199, 2016 Miss. LEXIS 347 (Miss. 2016).

Circuit court erred in granting summary judgment for a city in a property owner’s action alleging that the city improperly rezoned her commercial property to residential because a genuine dispute of material facts existed, and the owner could meet an exception to the requirement of exhausting her administrative; if the city unconstitutionally rezoned the property, any attempt to rezone would be unnecessary, as any unconstitutional rezoning was void. Durr v. City of Picayune, 185 So.3d 1042, 2015 Miss. App. LEXIS 362 (Miss. Ct. App. 2015), cert. denied, 185 So.3d 385, 2016 Miss. LEXIS 89 (Miss. 2016).

Appellate court affirmed the grant of summary judgment in favor of the city as the trial court did not have subject matter jurisdiction due to the firefighter’s failure to exhaust his administrative remedies as required by Miss. Code Ann. §11-51-75. Pratt v. City of Greenville, 918 So. 2d 81, 2006 Miss. App. LEXIS 7 (Miss. Ct. App. 2006).

15. Evidence.

Chancellors do not have discretion in admitting and/or considering relevant evidence in the context of the statute for determining the validity of bond issues; therefore, a chancellor erred by finding that the time had passed for the presentation of evidence as to the sufficiency of the signatures on the petition. Not only was it the correct time for presenting evidence of the sufficiency of the signatures on the petition, it was the only time. Russell v. Humphreys Cnty. Bd. of Supervisors (In re Validation of Tax Anticipation Note), 187 So.3d 1025, 2016 Miss. LEXIS 138 (Miss. 2016).

16. Res judicata.

Adult entertainment club operator’s claims against various county defendants, arising from the denial of its request for an exemption from an ordinance that restricted its business hours, were barred by res judicata because the four identities and a final judgment existed in a state court action raising similar claims, and there was a full and fair opportunity to litigate the claims. MEC, Inc. v. Lowndes Cty. Bd. of Supervisors, 759 Fed. Appx. 331, 2019 U.S. App. LEXIS 1027 (5th Cir. Miss. 2019).

OPINIONS OF THE ATTORNEY GENERAL

The deadline for filing an appeal from the decision of the Mayor and Board of Aldermen under Section 17-1-17 is 10 days because any party aggrieved by the decision of the governing authorities may appeal the decision to circuit court within 10 days under Section 11-51-75. Peeples, June 14, 1995, A.G. Op. #95-0359.

RESEARCH REFERENCES

ALR.

Standing of zoning board of appeals or similar body to appeal reversal of its decision. 13 A.L.R.4th 1130.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 73, 74.

CJS.

4 C.J.S., Appeal and Error §§ 1, 41, 43-50, 54, 56-85.

§ 11-51-77. Appeal from assessment of taxes — Attorney General, district attorney, county attorney may appeal.

  1. Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten (10) days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term. The controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten percent (10%) on the amount in controversy and all costs. If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs.
  2. A political subdivision may appeal an assessment of taxes as provided in this subsection (2). Only the county attorney, the district attorney, the Attorney General, or the political subdivision acting through its attorney, if the state, county, municipality or political subdivision be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town, or village as to the assessment of taxes, may, within twenty (20) days after the adjournment of the meeting at which such decision is made, or within twenty (20) days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the Department of Revenue, or within twenty (20) days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the Department of Revenue is entered, appeal to the circuit court of the county in like manner as in the case of any person aggrieved as provided in subsection (1) of this section, except no bond shall be required, and such appeal may be otherwise governed by the provisions of this section.

HISTORY: Codes, 1880, § 504; 1892, § 80; 1906, § 81; Hemingway’s 1917, § 61; 1930, § 62; 1942, § 1196; Laws, 1918, ch. 120; Laws, 2018, ch. 431, § 1, eff from and after July 1, 2018.

Amendment Notes —

The 2018 amendment divided the former section into (1) and (2) by adding “A political subdivision may appeal an assessment of taxes as provide in this subsection (2). Only” preceding what was the fourth sentence of the section; inserted “(10)” in (1); and in (2), inserted “or the political subdivision acting through its attorney,” and “or political subdivision,” inserted “(20)” three times, and substituted “Department of Revenue” for “State Tax Commission” twice, and “aggrieved as provided in subsection (1) of this section” for “aggrieved as hereinbefore provided.”

Cross References —

Appeals of equalizations as final assessments of real and personal property, see §21-33-39.

Appeals by Commissioner of Revenue, see §27-3-33.

Appeal from order of board of supervisors approving assessment for former years, see §27-35-157.

JUDICIAL DECISIONS

1. In general.

2. Validity.

3. Construction and application generally.

4. Failure to appeal, effect of.

5. Persons entitled to appeal.

6. Payment of taxes, effect of.

7. Appeal bond.

8. Time for appeal.

9. Finality of assessment.

10. Effect of appeal.

11. Questions presented for review.

12. Proceedings on appeal.

13. —Evidence.

14. —Judgment.

15. —Damages.

16. — Costs.

17. Other remedies.

1. In general.

Circuit court had jurisdiction under Miss. Code Ann. §11-51-77 where a taxpayer’s bill of exceptions challenged the board of supervisors’ compliance with the mandatory statutory notice requirements, it supplemented the bill of exceptions after the tax was assessed and it paid the tax in protest, and thus, the bill of exceptions was an appeal from a tax assessment. Tunica Cty. Bd. of Supervisors v. HWCC-Tunica, LLC, 237 So.3d 115, 2017 Miss. LEXIS 458 (Miss. 2017).

Cases in which the statute creating the cause of action was silent regarding jury trial have been tried before juries for parts of three centuries. That continued custom and practice is the common law, and it was an inviolate right prior to the adoption of our 1890 Constitution; therefore, the right to a jury trial exists in tax-assessment appeals to circuit court. Riverboat Corp. v. Harrison Cnty. Bd. of Supervisors, 198 So.3d 289, 2016 Miss. LEXIS 291 (Miss. 2016).

2. Validity.

This section [Code 1942, § 1196] does not violate the due process and equal protection clauses of the Constitution by giving the state and county a longer time in which to appeal than that given the taxpayer. Robinson Land & Lumber Co. v. Roberson, 126 Miss. 535, 89 So. 160, 1921 Miss. LEXIS 62 (Miss. 1921).

3. Construction and application generally.

Circuit court erred in finding in favor of a taxpayer in its action challenging the amount of the ad valorem taxes assessed against it because the circuit court lacked subject matter jurisdiction; the taxpayer was required to post a bond in order to appeal the tax assessments, and its failure to post a bond deprived the circuit court of jurisdiction to hear the appeal. Bd. of Supervisors of Clarke Cty. v. BTH Quitman Hickory, LLC, 255 So.3d 1261, 2018 Miss. LEXIS 414 (Miss. 2018).

Section 11-51-77 governs appeals to the circuit court from decisions of a county board of supervisors regarding tax matters, and the statute does not require that a bill of exceptions be filed as a prerequisite to the circuit court obtaining subject matter jurisdiction over such matters. Lenoir v. Madison County, 641 So. 2d 1124, 1994 Miss. LEXIS 379 (Miss. 1994).

The penalty under this section [Code 1942, § 1196] should be confined to its specific terms and should be strictly construed. City of Pascagoula v. Advertiser Pub. Co., 226 Miss. 247, 84 So. 2d 157, 1955 Miss. LEXIS 629 (Miss. 1955).

In a taxpayer’s suit attacking the validity of a contract between the city and company for professional services by the company in making a detailed appraisal and valuation study of all properties in the city including its replacement, physical and other values, if the taxpayers were aggrieved by tax assessments affecting their property which was based upon valuations made by the city assessor under the contract, they should have sought relief by filing objections with the mayor and the board of aldermen and by appealing from such assessments in the manner provided by the statute. Alexander v. Mayor & Board of Aldermen, 219 Miss. 78, 68 So. 2d 434, 1953 Miss. LEXIS 372 (Miss. 1953), modified, 220 Miss. 207, 70 So. 2d 529, 1954 Miss. LEXIS 427 (Miss. 1954).

The validity of city tax assessment, where city court denied the petition but it was not requested to apply this section [Code 1942, § 1196] allowing damages for unsuccessful appeal in such cases, no cross appeal or cross assignment of error was filed on appeal to Supreme Court and the issue of statutory damages was not raised in brief or by suggestion of error to Supreme Court’s affirmance of judgment, the Supreme Court would not consider a motion to correct judgment to include statutory damages for unsuccessful appeal. McArdle's Estate v. Jackson, 215 Miss. 571, 61 So. 2d 400, 1952 Miss. LEXIS 600 (Miss. 1952).

Right to appeal from refusal of board of supervisors to levy tax for school district is not a “speedy remedy” within meaning of Code 1942, § 1109, so as to bar issuance of writ of mandamus. State ex rel. Chatham v. Bd. of Supervisors, 209 Miss. 79, 46 So. 2d 73, 1950 Miss. LEXIS 363 (Miss. 1950).

Remedy of one who is party to proceedings before board of supervisors and is aggrieved by its decision is by appeal on bill of exceptions to circuit court under this section [Code 1942, § 1196], and if this remedy is not pursued as provided by law, objections to board’s decision constitute collateral attack which cannot be maintained. In re Savannah Special Consol. School Dist., 208 Miss. 460, 44 So. 2d 545, 1950 Miss. LEXIS 265 (Miss. 1950).

Since a taxpayer would have been entitled to an appeal to the circuit court and trial de novo therein from an unfavorable decision of the board of supervisors on the question of reduction of ad valorem assessment on his property, and the jury therein would be governed by an instruction that no specific parcel of real estate may be assessed at more than its actual value, the right of the taxpayer in this respect could not be less with respect to a review by the state tax commission of a favorable decision of the board of supervisors, the state tax commission being subject to the same instruction. Stuart v. Board of Supervisors, 195 Miss. 1, 11 So. 2d 212, 1943 Miss. LEXIS 115 (Miss. 1943).

Proceedings under this statute are judicial rather than administrative in character and hence a “suit” within the statute relating to removal from state to Federal courts. City of Hattiesburg v. First Nat'l Bank, 8 F. Supp. 157, 1934 U.S. Dist. LEXIS 1322 (D. Miss. 1934).

Circuit court, on appeal from the board of supervisors, as to taxes, has same power as the board. Knox v. L. N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873, 1927 Miss. LEXIS 94 (Miss. 1927).

Tax Laws are to be construed together in determining when taxpayer has right of appeal to the circuit court. Moller-Vandenboom Lumber Co. v. Board of Sup'rs, 135 Miss. 249, 99 So. 823, 1924 Miss. LEXIS 34 (Miss. 1924).

Laws 1916 ch. 98, creating the state board of tax commissioners, does not take property without due process, since an appeal may be taken by the taxpayer. State ex rel. Forman v. Wheatley, 113 Miss. 555, 74 So. 427, 1917 Miss. LEXIS 135 (Miss. 1917).

This section (Code 1906, § 81) applies specifically to appeals relating to taxes, while § 80 (Code 1942, § 1195) applies to all other cases. Kuhn Bros. v. Warren County, 98 Miss. 879, 54 So. 442, 1910 Miss. LEXIS 137 (Miss. 1910).

This section [Code 1942, § 1196] only regulates appeals from judgments relating to assessments of property for taxation. Jennings v. Board of Sup'rs, 79 Miss. 523, 31 So. 107 (Miss. 1901).

The right to apply for a reduction in the valuation of property for taxation as fixed by the board of supervisors is not affected by this section [Code 1942, § 1196]. Simmons v. Board of Supervisors, 68 Miss. 37, 8 So. 259, 1890 Miss. LEXIS 4 (Miss. 1890).

4. Failure to appeal, effect of.

Denying a board of supervisors’ motion to dismiss an appeal of its decision to assess ad valorem taxes for property the taxpayer leased from an airport was not error as nothing in Miss. Code Ann. §§27-35-143,27-35-93, or11-51-77 required an application before filing an appeal with the court. Rankin Cty. Bd. of Supervisors v. Lakeland Income Props., LLC, 241 So.3d 1279, 2018 Miss. LEXIS 198 (Miss. 2018).

Where a corporate taxpayer erroneously paid a municipal ad valorem tax assessment on personal property of the taxpayer consigned to a lessee operating as an exempt free port warehouse under Code 1972 §§27-31-51 et seq., the taxpayer’s failure to protest the assessment by appeal to the circuit court as provided by Code §11-51-77 did not constitute a waiver and the corporation was entitled to petition the municipality for refund under Code §21-33-79 and thereafter appeal the municipal denial of the refund to the circuit court under Code 1972 §21-33-83. Jackson v. De Soto, Inc., 350 So. 2d 684, 1977 Miss. LEXIS 2229 (Miss. 1977).

Parties are bound by order awarding contract for municipal improvements without appeal therefrom; injunction is not available as to order awarding contract for improvements, where proceedings were not void on their face. Moore v. Board, etc., of Duck Hill, 151 Miss. 840, 119 So. 324, 1928 Miss. LEXIS 388 (Miss. 1928).

Taxpayers failing to appeal from an order of the board of supervisors approving an assessment are concluded thereby. Yazoo Delta Inv. Co. v. Suddoth, 70 Miss. 416, 12 So. 246, 1892 Miss. LEXIS 109 (Miss. 1892).

If a taxpayer failed to appeal he will not be relieved in equity. Anderson v. Ingersoll, 62 Miss. 73, 1884 Miss. LEXIS 21 (Miss. 1884).

5. Persons entitled to appeal.

School district and a city had standing to sue a county board of supervisors to challenge its approval of tax assessments on a company’s leasehold interest in property because they experienced an adverse effect from the board’s conduct, and that adverse effect was different from that experienced by the general public; both the district and the city had statutory duties associated with the taxes, and their funding was reduced by any allegedly improperly low tax assessment. Pascagoula- Gautier Sch. Dist. v. Bd. of Supervisors, 212 So.3d 742, 2016 Miss. LEXIS 437 (Miss. 2016).

Attorney-general may appeal from assessments without first objecting; on appeal, trial is anew and taxpayer may show overvaluation of property. Robinson Land & Lumber Co. v. Roberson, 126 Miss. 535, 89 So. 160, 1921 Miss. LEXIS 62 (Miss. 1921).

Appeal lies from decision of board of supervisors increasing assessor’s valuation of property for taxation, though person aggrieved by decision did not object thereto. Louis Cohn & Bros. v. Lincoln County, 119 Miss. 718, 81 So. 492, 1919 Miss. LEXIS 48 (Miss. 1919).

6. Payment of taxes, effect of.

Questions involved on taxpayer’s appeal to circuit court from municipal assessment of taxes did not become moot, notwithstanding taxpayer while appeal was pending paid taxes under protest. Grenada Bank v. Moorhead, 160 Miss. 163, 133 So. 666, 1931 Miss. LEXIS 169 (Miss. 1931).

Taxpayer’s payment of assessment under protest does not preclude him from prosecuting appeal from erroneous assessment. Grenada Bank v. Moorhead, 160 Miss. 163, 133 So. 666, 1931 Miss. LEXIS 169 (Miss. 1931).

7. Appeal bond.

Hospital that was appealing a circuit court’s decision to dismiss its complaint for reduction of assessment on software failed to post the necessary appeal bond required by Miss. Code Ann. §11-51-77. The hospital’s payment of the ad valorem assessment did not excuse the requirement to post a bond. Natchez Hosp. Co., LLC v. Adams Cty. Bd. of Supervisors, 238 So.3d 1162, 2018 Miss. LEXIS 137 (Miss. 2018).

Circuit court erred in finding in favor of a taxpayer in its action challenging the amount of the ad valorem taxes assessed against it because the circuit court lacked subject matter jurisdiction; the taxpayer was required to post a bond in order to appeal the tax assessments, and its failure to post a bond deprived the circuit court of jurisdiction to hear the appeal. Bd. of Supervisors of Clarke Cty. v. BTH Quitman Hickory, LLC, 255 So.3d 1261, 2018 Miss. LEXIS 414 (Miss. 2018).

Appeal bond executed and filed with clerk during session of board of supervisors appealed case from board, although final judgment assessing lands was entered after filing. Moller-Vonderboom Lumber Co. v. Board of Sup'rs, 138 Miss. 289, 103 So. 81, 1925 Miss. LEXIS 48 (Miss. 1925).

The remedy of the appellee from an insufficient appeal bond is an order requiring the bond to be made sufficient rather than a preemptory dismissal. Bank of Oxford v. Board of Sup'rs, 79 Miss. 152, 29 So. 825 (Miss. 1901).

8. Time for appeal.

Circuit court properly granted summary judgment to a county board of supervisors and denied the leaseholders’ request for a declaratory judgment because the leaseholders did not timely lodge an objection to a spike in their ad valorem taxes with the board or present sufficient evidence to establish that they leased the land for agricultural purposes, none of their 2010 assessments varied more than 10 percent from the previous year, and the court order that they cited did not apply to them. Darden v. Bd. of Supervisors, 169 So.3d 913, 2014 Miss. App. LEXIS 91 (Miss. Ct. App. 2014).

Where appellant filed his 1999 notice of appeal with the circuit court beyond the 10-day limitation of former Miss. Code Ann. §11-51-79 but within the 30-day time limit of Miss. Unif. Cir. & County Ct. Prac. R. 5.04, the court of appeals applied the 30- day time limit because such rules supersede statutes that are in conflict with the rules. Wolfe v. City of D'Iberville, 799 So. 2d 142, 2001 Miss. App. LEXIS 409 (Miss. Ct. App. 2001).

City’s appeal of decision of county board of supervisors granting bar center property tax exempt status could be brought within 20 days after adjournment of meeting at which decision was made, and did not instead have to be brought within 20 days after board gave final approval to State Tax Commission rolls; therefore, city’s appeal was not premature. Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

Three events are sufficient to trigger time within which municipality must file appeal of tax decision of county board of supervisors: adjournment of meeting at which decision is made; adjournment of meeting at which assessment rolls are corrected in accordance with instructions of State Tax Commission; or adjournment of meeting at which approval of roll by State Tax Commission is entered. Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

Attorney-general aggrieved by decision of board of supervisors equalizing assessment roll, need not appeal till after approval of assessment roll. Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12, 1927 Miss. LEXIS 236 (Miss. 1927), but see Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

Appeal can only be taken from order finally approving assessment after its approval by state tax commission. State ex rel. Knox v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, 1925 Miss. LEXIS 47 (Miss. 1925).

Appeal from board of supervisors assessing and equalizing taxes does not lie until after the state tax commission has passed on the roll and equalized it with those of other counties; appeal prior to filing of assessment roll with tax commission will be dismissed. Wilkinson County v. Foster Creek Lumber & Mfg. Co., 135 Miss. 616, 100 So. 2, 1924 Miss. LEXIS 40 (Miss. 1924).

Owner of property assessed for taxation may appeal from the assessment finally approved by the tax commission and is not required to appeal until that time. Mobile & O. R. Co. v. Board of Sup'rs, 124 Miss. 655, 87 So. 139, 1920 Miss. LEXIS 552 (Miss. 1920).

Motion to dismiss appeal from municipal assessment because not filed within five days after assessment made was properly overruled where the appeal was filed within five days after the assessment roll was approved. Gloster Compress & Trading Co. v. Gloster, 115 Miss. 578, 76 So. 550, 1917 Miss. LEXIS 236 (Miss. 1917).

An appeal does not lie from an order directing an assessment until the judgment approving the assessment roll shall have become final. Madison County v. Frazier, 78 Miss. 880, 29 So. 765, 1901 Miss. LEXIS 136 (Miss. 1901).

9. Finality of assessment.

Order of mayor and board of aldermen of town, in substance adopting and approving assessment rolls, notwithstanding subsequent order, held final, and therefore appealable. Grenada Bank v. Moorhead, 160 Miss. 163, 133 So. 666, 1931 Miss. LEXIS 169 (Miss. 1931).

Entering on the minutes order of state tax commission approving rolls certified to it by the board, is final assessment from which the taxpayer can appeal. Marathon Lumber Co. v. State, 139 Miss. 125, 103 So. 798, 1925 Miss. LEXIS 119 (Miss. 1925).

Assessment rolls ordered to be changed by the state tax commission does not become final until approved by the board of supervisors. Marathon Lumber Co. v. State, 139 Miss. 125, 103 So. 798, 1925 Miss. LEXIS 119 (Miss. 1925).

An order directing an assessment is not final until the assessment roll is approved and the board adjourns. Madison County v. Frazier, 78 Miss. 880, 29 So. 765, 1901 Miss. LEXIS 136 (Miss. 1901).

10. Effect of appeal.

Where a taxpayer appealed to the circuit court from an assessment by the city of the company’s personal property taxes and before the case came on trial de novo in the circuit court, the company filed a motion to dismiss its appeal, the case was not decided against the taxpayer in the circuit court within the meaning of this section [Code 1942, § 1196]. City of Pascagoula v. Advertiser Pub. Co., 226 Miss. 247, 84 So. 2d 157, 1955 Miss. LEXIS 629 (Miss. 1955).

State Revenue Agent cannot recover commissions for delinquent taxes after suit brought to compel payment, but before trial, where an appeal from assessment of such tax was pending. Harrison County v. Robertson, 121 Miss. 387, 83 So. 617, 1919 Miss. LEXIS 173 (Miss. 1919); Robertson v. Harrison County, 127 Miss. 281, 90 So. 8, 1921 Miss. LEXIS 223 (Miss. 1921).

After the execution of an appeal bond, an appeal by a taxpayer to the circuit court from the judgment of the board of supervisors approving an additional assessment made by the tax collector is not subject to dismissal for failure to pay or tender taxes. Board of Sup'rs v. Tate, 78 Miss. 294, 29 So. 74 (Miss. 1900).

11. Questions presented for review.

An appeal from a city assessment covers the entire assessment; one securing deduction of fire loss in equalization of his property cannot complain because deduction was made on wrong building. Redmond v. Jackson, 143 Miss. 114, 108 So. 444, 1926 Miss. LEXIS 249 (Miss. 1926).

Objection to assessment on ground of exemption precludes company from raising regularity of assessment on appeal. Adams County v. National Box Co., 125 Miss. 598, 88 So. 168, 1921 Miss. LEXIS 146 (Miss. 1921).

One who appeals to the circuit court from a decision of the board of supervisors raising his assessment and is defeated cannot appeal to the Supreme Court from that portion only of the judgment of the circuit court adjudging against him statutory damages and costs. Wm. Atkinson & Bacot Co. v. Pike County, 73 Miss. 348, 18 So. 924, 1895 Miss. LEXIS 112 (Miss. 1895).

12. Proceedings on appeal.

Where the owner of property protested the assessment as being too high but the city commissioners rejected the protest and adopted the assessment without change, the burden of proof was on the owner to overturn such assessment on appeal to the circuit court with the attendant right to open and close the argument. City of Jackson v. McCardle's Estate, 189 Miss. 781, 198 So. 736, 1940 Miss. LEXIS 161 (Miss. 1940).

Appeal by the attorney-general from assessment of taxes is tried de novo in circuit court. Knox v. L. N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873, 1927 Miss. LEXIS 94 (Miss. 1927).

On appeal from assessment of taxes, circuit court may require production of books and papers showing value of property. Knox v. L. N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873, 1927 Miss. LEXIS 94 (Miss. 1927).

On appeal from order increasing assessment, error to grant a peremptory instruction in favor of taxpayer, where there is testimony of undervaluation. Union v. J. R. Buchwalter Lumber Co., 136 Miss. 414, 101 So. 561, 1924 Miss. LEXIS 153 (Miss. 1924).

Trial by circuit court on an agreed statement of facts, of appeal from order of board of supervisors reducing or refusing to reduce an assessment of property for taxation, is trial on merits. Board of Sup'rs v. Laurel Mills, 130 Miss. 454, 94 So. 448, 1922 Miss. LEXIS 222 (Miss. 1922).

13. —Evidence.

Circuit court erred in its assessment of a taxpayer’s student-housing complex property because the court erroneously adopted the county’s true value determination of the property when the income capitalization approach was the best approach for the property as the valuation included the student-housing complex’s individual property characteristics and actual income in ascertaining the true value of the property. TNHYIF REIV GOLF, LLC v. Forrest Cty., 275 So.3d 92, 2018 Miss. App. LEXIS 556 (Miss. Ct. App. 2018).

That Board of Supervisors placed all cut-over land in the County, except certain swamp lands, at an arbitrary assessment value of $2.50 per acre, that the greater area of all taxable lands was in such cut-over class assessed at $2.50 per acre, and that taxpayer’s land was so assessed although it was not worth on an average as much as the average of other land in such class, did not warrant the circuit court on appeal to receive in evidence the entire assessment roll of all lands in the county in order to emphasize taxpayer’s point, where taxpayer’s land was not assessed at more than its true value. Batson v. Pearl River County, 204 Miss. 882, 35 So. 2d 712, 1948 Miss. LEXIS 416 (Miss. 1948).

Burden of proof on municipality on appeal from board of equalization increasing taxpayer’s assessment above that returned by assessor. Whittle v. Hattiesburg, 132 Miss. 808, 96 So. 741, 1923 Miss. LEXIS 78 (Miss. 1923).

14. —Judgment.

In proceeding to review an order of a board of supervisors levying a special county-wide tax for the payment of indebtedness incurred in the purchase of road machinery for the separate use of public road districts, and the refusal of the board to refund tax to taxpayer paying same under protest, in which the taxpayer filed a brief supporting its claim to a refund of the tax, failure of county’s attorney to file a brief is tantamount to a confession of error and warrants judgment for the taxpayer. Gulf, M. & O. R. Co. v. Webster County, 194 Miss. 660, 13 So. 2d 644, 1943 Miss. LEXIS 107 (Miss. 1943).

A substantial increase, by virtue of a judgment of the circuit court on appeal by the Attorney General from the assessment adjudicated by the Board of Supervisors of the county and the State Tax Commission, of the assessment of the taxpayers’ land over what similar lands of other taxpayers generally and systematically were assessed at was a discrimination against the taxpayers and a violation of the constitutional principal of uniformity, irrespective of what percentage of the true value was used as the basis of valuation. Edward Hines Yellow Pine Trustees v. Stewart, 46 F.2d 910, 1931 U.S. App. LEXIS 2522 (5th Cir. Miss.), cert. denied, 283 U.S. 861, 51 S. Ct. 654, 75 L. Ed. 1466, 1931 U.S. LEXIS 428 (U.S. 1931).

On appeal of attorney-general from the board of supervisors, judgment increasing assessment should not order payment of his commission. Edward Hines Yellow Pine Trustees v. State, 146 Miss. 101, 112 So. 12, 1927 Miss. LEXIS 236 (Miss. 1927), but see Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

Equality of city assessment is equality over city as a whole, and property not assessed at a greater rate than general assessment over city is not assessed beyond its true value, and assessment will be affirmed. Redmond v. Jackson, 143 Miss. 114, 108 So. 444, 1926 Miss. LEXIS 249 (Miss. 1926).

Judgment on certiorari reversing judgment of state tax commission is a “final judgment,” and the commission is not entitled to appeal therefrom. Illinois C. R. Co. v. Miller, 141 Miss. 213, 106 So. 635, 1925 Miss. LEXIS 232 (Miss. 1925).

Record held to show affirmance on merits of order abating assessment. Miller v. Beltzhoover's Estate, 141 Miss. 24, 105 So. 751, 1925 Miss. LEXIS 195 (Miss. 1925).

15. —Damages.

Where a protestant appealed the assessment of property taxes in the circuit court which awarded 10 per cent damages and in supreme court which awarded 5 per cent as provided by the statute, the awards were for damages for unsuccessful appeals and were not a penalty. Sellers v. Jackson, 221 Miss. 150, 75 So. 2d 265, 1954 Miss. LEXIS 525 (Miss. 1954).

Where City of Jackson assessed property and there was an appeal to the circuit court which confirmed the assessment, an award giving the city 10 per cent statutory damages for unsuccessful appeal was subject to interest at the rate of 6 per cent from date of judgment until paid. Sellers v. Jackson, 221 Miss. 150, 75 So. 2d 265, 1954 Miss. LEXIS 525 (Miss. 1954).

Attorney-general is entitled to 15% on amount recovered in tax assessment appeals. Jefferson Davis County v. Berry, 152 Miss. 578, 120 So. 572, 1929 Miss. LEXIS 235 (Miss. 1929).

Ten per cent damages can be recovered, where judgment in circuit court for appellant was reversed on appeal, only by claim or motion in the Supreme Court within the time prescribed to amend or correct judgment, and not by subsequent motion in the circuit court. Board of Sup'rs v. Foster Creek Lumber & Mfg. Co., 138 Miss. 543, 103 So. 482, 1925 Miss. LEXIS 90 (Miss. 1925).

16. — Costs.

Circuit court erred in denying the taxpayers’ motion to tax costs because the applicable statute undisputedly mandated that the county board of supervisors pay “the costs,” and the civil and appellate rules provided that costs included, inter alia, the premiums paid for cost of supersedeas bonds. Gulfport Partners V, L.P. v. Harrison Cty. Bd. of Supervisors & Tal Flurry, 231 So.3d 234, 2017 Miss. App. LEXIS 292 (Miss. Ct. App.), cert. denied, — So.3d —, 2017 Miss. LEXIS 466 (Miss. 2017), cert. denied, — So.3d —, 2017 Miss. LEXIS 467 (Miss. 2017), cert. denied, — So.3d —, 2017 Miss. LEXIS 473 (Miss. 2017), cert. denied, — So.3d —, 2017 Miss. LEXIS 478 (Miss. 2017).

17. Other remedies.

It is the duty of persons claiming to have been illegally assessed to avail themselves of the statutory remedy before applying to a Federal court for relief. First Nat'l Bank v. Gildart, 64 F.2d 873, 1933 U.S. App. LEXIS 4241 (5th Cir. Miss.), cert. denied, 290 U.S. 631, 54 S. Ct. 50, 78 L. Ed. 549, 1933 U.S. LEXIS 616 (U.S. 1933).

A taxpayer action challenging the assessment of property added to a municipal separate school district and lying outside the municipality could not be maintained as a class action where the claims of the purported class members related to individually owned parcels of real estate separate and distinct from each other; the remedy of each of these persons, as landowners, was by exercising the statutory right of appeal. Thompson v. Anding, 370 So. 2d 1335, 1979 Miss. LEXIS 2031 (Miss. 1979).

Where bank voluntarily paid taxes and did not avail itself of statutory remedies to cure alleged errors, receiver of bank held not entitled to mandamus to compel Attorney-General to approve refund. Selig v. Price, 167 Miss. 612, 142 So. 504, 1932 Miss. LEXIS 204 (Miss. 1932).

Appeal to the circuit court from tax assessment is the exclusive remedy, where the assessment is valid on its face. Reed v. Norman-Breaux Lumber Co., 149 Miss. 395, 115 So. 724, 1928 Miss. LEXIS 63 (Miss. 1928).

Bill to enjoin attorney-general from appealing from tax assessment cannot be maintained if remedy sought is defensive merely and equally available in suit at law. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Contention that appeal from tax assessment was nullity because not signed by attorney-general or assistants and because not taken within prescribed time does not constitute ground for equitable relief by way of injunction. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

Alleged intention of attorney-general in appeal from tax assessment, to secure 100 per cent assessment as against assessment of 60 per cent as to other property, does not present ground for injunction. Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560, 108 So. 907, 1926 Miss. LEXIS 336 (Miss. 1926).

RESEARCH REFERENCES

ALR.

Standing of one taxpayer to complain of underassessment or nonassessment of property of another for state and local taxation. 9 A.L.R.4th 428.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 73, 74.

CJS.

4 C.J.S., Appeal and Error §§ 1, 43, 44.

§ 11-51-79. Appeals from the county court.

No appeals or certiorari shall be taken from any interlocutory order of the county court, but if any matter or cause be unreasonably delayed of final judgment therein, it shall be good cause for an order of transfer to the circuit or chancery court upon application therefor to the circuit judge or chancellor. Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided. Such appeal shall operate as a supersedeas only when such would be applicable in the case of appeals to the Supreme Court. Appeals should be considered solely upon the record as made in the county court and may be heard by the appellate court in termtime or in vacation. If no prejudicial error be found, the matter shall be affirmed and judgment or decree entered in the same manner and against the like parties and with like penalties as is provided in affirmances in the Supreme Court. If prejudicial error be found, the court shall reverse and shall enter judgment or decree in the manner and against like parties and with like penalties as is provided in reversals in the Supreme Court; provided, that if a new trial is granted the cause shall be remanded to the docket of such circuit or chancery court and a new trial be had therein de novo. Appeals from the county court shall be taken and bond given within thirty (30) days from the date of the entry of the final judgment or decree on the minutes of the court; provided, however, that the county judge may within said thirty (30) days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty (60) days from the date of the said final judgment or decree. Judgments or decrees of affirmance, except as otherwise hereinafter provided, may be appealed to the Supreme Court under the same rules and regulations and under the same penalties, in case of affirmance, as appertain to appeals from other final judgments or decrees of said courts, but when on appeal from the county court a case has been reversed by the circuit or chancery court there shall be no appeal to the Supreme Court until final judgment or decree in the court to which it has been appealed. When the result of an appeal in the Supreme Court shall be a reversal of the lower court and in all material particulars in effect an affirmance of the judgment or decree of the county court, the mandate may go directly to the county court, otherwise to the proper lower court. Provided, however, that when appeals are taken in felony cases which have been transferred from the circuit court to the county court for trial, and have been there tried, such appeals from the judgment of the county court shall be taken directly to the Supreme Court.

HISTORY: Codes, 1930, § 704; 1942, § 1616; Laws, 1926, ch. 131; Laws, 1932, chs. 140, 256; Laws, 1940, ch. 229; Laws, 1966, ch. 348, § 1; Laws, 2001, ch. 423, § 1, eff from and after July 1, 2001.

Amendment Notes —

The 2001 amendment substituted “thirty (30) days” for “ten (10) days” and “sixty (60) days,” respectively.

Cross References —

Appeals in eminent domain cases, see §11-27-29.

JUDICIAL DECISIONS

1. Validity.

2. Jurisdiction.

3. Right and requisites of appeal.

4. Appeals in felony cases transferred to county court.

5. Time for appeal.

6. Matters considered on appeal.

7. Judgments or orders on appeal.

8. —Trial de novo.

9. —Statutory damages or penalties.

1. Validity.

Although the statute provides that interlocutory appeals may not be taken from county court decisions and that certain appeals from county court must be made to the circuit court. Mississippi Supreme Court rules regarding appeals from county court take precedence over the statute. Clinton Healthcare, LLC v. Atkinson, — So.3d —, 2019 Miss. LEXIS 1 (Miss. Jan. 10, 2019).

Where the judgment of the Supreme Court reversed the circuit court and in effect affirmed the judgment of the county court, the mandate will be issued direct to the county court. Martin v. Motors Ins. Corp., 219 Miss. 473, 68 So. 2d 869, 1954 Miss. LEXIS 354 (Miss. 1954).

This section [Code 1942, § 1616], in providing an appeal from county court to chancery court in equity cases, is valid as against contention that an appeal from an inferior court can be taken only to the circuit court by virtue of § 156 of the Constitution. W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So. 2d 582, 1945 Miss. LEXIS 173 (Miss. 1945).

This section [Code 1942, § 1616] in providing for appeals directly from the county court to the supreme court in felony cases which have been transferred from the circuit court to the county court for trial and tried in the county court is not unconstitutional as a violation of § 172 of the Constitution of 1890, providing for the establishment of inferior courts. Drummond v. State, 184 Miss. 738, 185 So. 207, 1938 Miss. LEXIS 316 (Miss. 1938).

2. Jurisdiction.

Medical center’s appeal of an order denying its motion for summary judgment on medical negligence claims did not violate the statute; Miss. Unif. Cir. & Cty. R. 4.06 and Miss. R. App. P. 5 conflict with §11-51-79 regarding interlocutory appeals, and the court’s rules trump statutory law. Jackson HMA, LLC v. Harris, 242 So.3d 1, 2018 Miss. LEXIS 51 (Miss. 2018).

Mississippi Rules of Appellate Procedure do not supersede the jurisdictional requirements of Miss. Code Ann. §11-51-79 (Rev. 2012). Even if they did, the §11-51-79 requirement comports with the applicable procedural rule, Miss. Unif. Cir. & Cty. R. 5.04, which requires that, in order to perfect an appeal from county to circuit court, the costs of the appeal be paid within 30 days of the entry of the judgment being appealed. Belmont Holding, LLC v. Davis Monuments, LLC, 253 So.3d 323, 2018 Miss. LEXIS 380 (Miss. 2018).

To the extent that Van Meter v. Alford, 774 So. 2d 430 (Miss. 2000), may be interpreted as holding that the bond requirement under Miss. Code Ann. §11-51-79 (Rev. 2012) is not jurisdictional, but rather a deficiency under Miss. R. App. P. 2(a)(2), such an interpretation is incorrect. Belmont Holding, LLC v. Davis Monuments, LLC, 253 So.3d 323, 2018 Miss. LEXIS 380 (Miss. 2018).

Circuit court did not err in finding that it was deprived of jurisdiction by an LLC’s failure to pay the cost bond within 30 days as mandated by Miss. Code Ann. §11-51-79 (Rev. 2012) where the Mississippi Rules of Appellate Procedure did not supersede the jurisdictional requirements of §11-51-79, and even if they did, the § 11-51-79 requirement comported with Miss. Unif. Cir. & Cty. R. 5.04. Belmont Holding, LLC v. Davis Monuments, LLC, 253 So.3d 323, 2018 Miss. LEXIS 380 (Miss. 2018).

On remand, it was of no consequence that one of the consolidated cases originated in county court because Miss. Code Ann §11-51-79 required that the replevin and mechanic’s lien cases be remanded to the circuit court, not the county court, for further proceedings and consideration of all claims, possession, and enforcement of liens. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So.3d 659, 2013 Miss. App. LEXIS 175 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 586 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 587 (Miss. 2013).

Appeals in paternity suits are governed exclusively by §93-9-41, not by §11-51-79, and such appeals may be made to no other court than the Supreme Court. Grisham v. Britfield, 391 So. 2d 107, 1980 Miss. LEXIS 2171 (Miss. 1980).

The filing of an appeal bond within ten days from the entry of judgment in county court is jurisdictional. Williams v. Michael, 319 So. 2d 226, 1975 Miss. LEXIS 1476 (Miss. 1975).

The filing of an approved appeal bond within 10 days, unless an extension is granted, is a jurisdictional requirement. Parkman v. Mississippi State Highway Com., 250 So. 2d 637, 1971 Miss. LEXIS 1188 (Miss. 1971).

Where an appeal from county court in equity case was erroneously taken to the circuit court instead of the chancery court as required by Code 1942, § 1616, and it was too late to appeal anew, circuit court should have transferred case to chancery court under § 157 of the Constitution, and that court erred in overruling a motion therefor and dismissing the appeal. W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So. 2d 582, 1945 Miss. LEXIS 173 (Miss. 1945).

Under statute requiring that appeals from county court to circuit court be made within ten days from entry of final judgment unless county judge extends time, circuit court held not to have jurisdiction where appeal was filed more than ten days after entry of final judgment, in absence of affidavit asking for extension of time, since statute is mandatory. Flowers v. Trotlos, 172 Miss. 305, 160 So. 581, 1935 Miss. LEXIS 155 (Miss. 1935).

County court being without jurisdiction to try eminent domain proceeding during vacation, circuit court and Supreme Court on appeal were likewise without jurisdiction. But see Code 1942, § 1604, providing for trial in vacation of eminent domain and unlawful entry and detainer actions. Mississippi State Highway Dep't v. Haines, 162 Miss. 216, 139 So. 168, 1932 Miss. LEXIS 121 (Miss. 1932).

3. Right and requisites of appeal.

Failure to post required bond within time prescribed by law is jurisdictional and Circuit Court has no power to hear appeal, although failure to give notice to court reporter is not jurisdictional. Johnson v. Evans, 517 So. 2d 570, 1987 Miss. LEXIS 2963 (Miss. 1987).

In an action on an open account in which the defendant’s plea in bar was sustained by the county court and the case dismissed, the order of the circuit court reversing the county court, holding that the plea in bar was without merit and setting the case on its docket for trial was not a final judgment from which an appeal to the Supreme Court would lie. Southern Saw & Mower Distributors, Inc. v. Dolmar North American Corp., 317 So. 2d 400, 1975 Miss. LEXIS 1750 (Miss. 1975).

A money judgment of the county court, entered in a replevin action, was an interlocutory judgment from which no appeal to circuit court would lie after an order had been entered in the trial court granting the issuance of a writ of inquiry to ascertain the value of the property in question, and before a final judgment had been entered. A. B. Cash Register Co. v. Travelers Reservation Asso., 219 So. 2d 147, 1969 Miss. LEXIS 1415 (Miss. 1969).

Where a landlord recovered judgment for rent due and possession of the premises against his tenant and other persons who were claiming to have an interest in lease, the other persons in interest with the tenant and their sureties could prosecute an appeal, even though the tenant did not appeal. Treuting v. Guice, 224 Miss. 794, 80 So. 2d 829, 1955 Miss. LEXIS 542 (Miss. 1955).

The application for an appeal is merely formal, the clerk being without the right to refuse it, provided it is accompanied by a proper bond-the only substantial requirement of the statute. SCHWARTZ v. MCKAY, 184 Miss. 422, 185 So. 200, 185 So. 811, 1938 Miss. LEXIS 315 (Miss. 1938).

The tender of an appeal bond is in fact a request that it be approved for the purpose of an appeal, and where the bond was filed with and approved by the circuit court clerk, who was also the clerk of the county court, in connection with an appeal from the county court to the circuit court, it was error to dismiss the appeal on the ground that no application therefor had been made. SCHWARTZ v. MCKAY, 184 Miss. 422, 185 So. 200, 185 So. 811, 1938 Miss. LEXIS 315 (Miss. 1938).

On appeal from county court to circuit court in eminent domain proceeding, appellants must give notice to stenographer to transcribe notes, as prescribed by statutes relating to court reporters. Mississippi State Highway Dep't v. Haines, 162 Miss. 216, 139 So. 168, 1932 Miss. LEXIS 121 (Miss. 1932).

Appeals from county court held not triable in circuit court until stenographer’s transcript becomes part of record or time therefor expires. Lollar v. Greenwood, 148 Miss. 363, 114 So. 627, 1927 Miss. LEXIS 65 (Miss. 1927).

4. Appeals in felony cases transferred to county court.

A direct appeal from a conviction of forgery in the county court to the supreme court was proper in view of this statutory provision. Drummond v. State, 184 Miss. 738, 185 So. 207, 1938 Miss. LEXIS 316 (Miss. 1938).

Cases transferred from circuit courts to county courts are appealable to circuit courts. Ex parte Tucker, 164 Miss. 20, 143 So. 700, 1932 Miss. LEXIS 219 (Miss. 1932).

5. Time for appeal.

The time for appeal ran from the date of entry of an order overruling a motion to set aside summary judgment, rather than the date of the order granting summary judgment, and therefore an appeal was timely pursuant to §11-51-79 where the appeal bond was paid 6 days after the motion to set aside summary judgment was overruled. Allen v. Mayer, 587 So. 2d 255, 1991 Miss. LEXIS 673 (Miss. 1991).

A motion for a new trial, filed during the term of entry of the judgment but 21 days subsequent to the entry, was violative of the statute authorizing appeals from a county court judgment, and should have been dismissed as not timely made, the provisions of the statute being mandatory and jurisdictional. Mid-Continent Refrigerator Co. v. Doherty, 232 So. 2d 360, 1970 Miss. LEXIS 1621 (Miss. 1970).

All appeals from the county court to the circuit court, including eminent domain proceedings, must be taken within 10 days from the date of the entry of the final judgment, or such extended time as the county judge may grant. Garrett v. Mississippi State Highway Com., 227 So. 2d 856, 1969 Miss. LEXIS 1376 (Miss. 1969).

Where a sheriff, who had been judged guilty of contempt of court, made no effort to file an appeal bond, and, after the time for an appeal had expired, the county judge directed the issuance of a capias pro fine to the coroner, who took the sheriff into custody, whereupon the sheriff petitioned the circuit court for a writ of habeas corpus, which was made returnable before the county judge, the trial judge in the habeas corpus proceedings did not have the power then to permit the sheriff to execute bonds and thereby effectually appeal the contempt judgments to the circuit court of the county. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Motion to set aside judgment may be made at any time during term at which judgment was entered, the finality of the judgment being thereby suspended and the limitation of the time for appeal beginning when, but not until, the motion is disposed of. Rogers v. Ziller, 48 So. 2d 476 (Miss. 1950).

Ten-day limitation on time for appeal from judgment of county court is not applicable to motion to set aside judgment which appears on its face to have been irregularly and improperly entered against garnishee before time allowed for garnishee to answer had expired. Rogers v. Ziller, 48 So. 2d 476 (Miss. 1950).

Appeal bond and notice to stenographer on appeal from judgment of county court which were filed within ten days from time order was entered overruling motion for new trial, but not within ten days after rendition of judgment held timely, since motion for new trial extended the judgment until the motion was disposed of and the judgment denying the new trial was a “final judgment.” Laurel Oil & Fertilizer Co. v. McCraw, 178 Miss. 117, 172 So. 503, 1937 Miss. LEXIS 190 (Miss. 1937).

Under statute requiring that appeals from county court to circuit court be made within ten days from entry of final judgment unless county judge extends time, circuit court held not to have jurisdiction where appeal was filed more than ten days after entry of final judgment, in absence of affidavit asking for extension of time, since statute is mandatory. Flowers v. Trotlos, 172 Miss. 305, 160 So. 581, 1935 Miss. LEXIS 155 (Miss. 1935).

Filing motion for new trial in county court over ten days after entry of final judgment, during same term, does not suspend judgment, nor resuscitate right of appeal. Mutual Health & Ben. Ass'n v. Cranford, 173 Miss. 152, 156 So. 876, 1934 Miss. LEXIS 387 (Miss. 1934).

Appeals from county to circuit court, including eminent domain proceedings, must be taken within ten days from judgment, or such extended time as county judge may grant. Mississippi State Highway Dep't v. Haines, 162 Miss. 216, 139 So. 168, 1932 Miss. LEXIS 121 (Miss. 1932).

6. Matters considered on appeal.

Testimony, taken in the circuit court on a motion for a new trial and a further motion to set aside the judgment, whereby the circuit court had affirmed the judgment of the county court, tending to show that the note sued upon was executed prior to its alleged date, was wholly incompetent under this section [Code 1942, § 1616], for the reason that the appeal was to be considered solely upon the record as made in the county court, and when so considered, the judgment appealed from should be affirmed if no prejudicial error be found. Peebles v. Miles, 189 Miss. 623, 198 So. 29, 1940 Miss. LEXIS 130 (Miss. 1940).

An appellant cannot for the first time on appeal from the county court to the circuit court present a plea supported by proof that appellee was a foreign corporation and had not complied with the statutes of this state authorizing it to do business therein and giving it access to its courts, since the circuit court, sitting as a court of appeals, can consider nothing except the record coming up from the county court. Carmichael v. J. Cahn Co., 183 Miss. 535, 184 So. 417, 1938 Miss. LEXIS 266 (Miss. 1938).

Where evidence warranted punitive damages, question whether they should be inflicted was for county judge trying case without jury, not for circuit judge on appeal. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Points not raised by assignments of error in circuit court, other than as to jurisdiction, cannot be raised in Supreme Court on appeal. State v. Carraway, 160 Miss. 263, 134 So. 846, 1931 Miss. LEXIS 209 (Miss. 1931).

7. Judgments or orders on appeal.

Where defendant in prosecution in county court for unlawful possession of whisky was entitled to a directed verdict of not guilty, circuit court should have reversed judgment of conviction and discharged defendant, and consequently Supreme Court would reverse judgment of circuit court affirming conviction and would discharge defendant. Lewis v. State, 198 Miss. 767, 23 So. 2d 401, 1945 Miss. LEXIS 245 (Miss. 1945).

Where only error in judgment of county court upholding buyer’s right to rescind sale was in providing that, upon default of the seller returning to the buyer the note and conditional sales contract the buyer was entitled to recover from the seller as damages to the face value of the note, with interest at 6 per cent per annum after maturity of each note instalment, instead of simply providing that upon such default the buyer recover the face value thereof, circuit court could make this correction, and consequently on appeal the Supreme Court would make such correction. Nichols Bus & Trailer Co. v. Fuller, 198 Miss. 230, 22 So. 2d 243, 1945 Miss. LEXIS 188 (Miss. 1945).

If on appeal prejudicial error is found, it is the duty of the circuit court to reverse the case whereupon this section [Code 1942, § 1616] requires that it be transferred to the issue docket of the circuit court for trial therein de novo; and after such trial de novo the circuit court would be entitled to entertain a motion for a new trial and to hear evidence in support thereof, but not otherwise. Peebles v. Miles, 189 Miss. 623, 198 So. 29, 1940 Miss. LEXIS 130 (Miss. 1940).

Under this section [Code 1942, § 1616] the circuit court considers the case on the record made in the county court, and if harmful error is found, grants a trial de novo in the circuit court, and if not, affirms the judgment, an eminent domain proceeding in the county court being in the same category as any other civil cause in that court. Mississippi State Highway Com. v. Reddoch, 184 Miss. 302, 186 So. 298, 1939 Miss. LEXIS 53 (Miss. 1939).

Where description of mortgaged property was void because insufficient and record presented no other facts for jury’s determination which could affect right of purchaser at bankruptcy sale to recover, Supreme Court reversed judgment for mortgagee and entered final judgment for such purchaser. National Foods, Inc. v. Friedrich, 173 Miss. 717, 163 So. 126, 1935 Miss. LEXIS 248 (Miss. 1935).

Circuit court, when affirming money judgment of county court, where appeal bond supersedes judgment, should render judgment on bond for amount of judgment affirmed, with interest thereon from date of rendition at same rate as borne by judgment affirmed, court costs, and six per cent damages on amount of judgment. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Supreme Court, reversing circuit court’s judgment which reversed county court’s judgment, could render such judgment as circuit court should have rendered. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Where Supreme Court reverses circuit court’s judgment, and, by rendering contrary judgment, in effect affirms county court judgment, mandate will be issued direct to county court. Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273, 1932 Miss. LEXIS 53 (Miss. 1932).

Supreme Court judgment, affirming circuit court judgment, affirming county court judgment, need not direct circuit court to remand case for enforcement by execution. Brandon v. Interstate Life & Acci. Co., 149 Miss. 814, 116 So. 739, 1928 Miss. LEXIS 99 (Miss. 1928).

8. —Trial de novo.

Because issues regarding the possessory rights of the parties remained unresolved, remand for a new trial on the merits was warranted to determine which party had a superior possessory right, under Miss. Code Ann. §§11-37-101 and85-7-251, to vehicles which a towing company towed from an auto repairman’s leased premises at the landlord’s direction. Crowell v. Butts, 153 So.3d 719, 2013 Miss. App. LEXIS 866 (Miss. Ct. App. 2013), cert. denied, 145 So.3d 674, 2014 Miss. LEXIS 395 (Miss. 2014), aff'd in part and rev'd in part, 153 So.3d 684, 2014 Miss. LEXIS 530 (Miss. 2014).

Since upon the circuit court’s reversal of the county court, based upon the granting of certain erroneous instructions by the county judge, the case became a pending cause on the docket of the circuit court for a new trial de novo, the order of reversal was not such a final judgment as an appeal could lie therefrom. Allen v. Sowell, 231 Miss. 597, 97 So. 2d 227, 1957 Miss. LEXIS 542 (Miss. 1957).

A judgment in county court in an unlawful entry and detainer action awarding plaintiff double rent from a fixed date until surrender of premises was properly affirmed by the circuit court on appeal, without remanding the case to its own docket for a new trial, after striking this provision and substituting the amount which had accrued prior to rendition of judgment. Stewart v. Miller, 200 Miss. 188, 26 So. 2d 540, 1946 Miss. LEXIS 281 (Miss. 1946).

Circuit court, in action of replevin on appeal from judgment of county court which failed to hold part of claim was barred by limitations, should reverse and try case de novo. Blount v. Miller, 172 Miss. 492, 160 So. 598, 1935 Miss. LEXIS 157 (Miss. 1935).

In replevin against sheriff who seized automobile under unconstitutional provision of taxing statute, where county court, on appeal from justice court, erroneously rendered judgment for defendant, circuit court, on appeal from county court, should have reversed county court’s judgment and tried case de novo. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

On Supreme Court’s reversal of circuit court judgment affirming county court judgment, which was in effect reversal of county court judgment, proper course was to remand case to circuit court to try de novo in accordance with statute. McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731, 1933 Miss. LEXIS 82 (Miss. 1933).

Trial on appeal from county court to circuit court in condemnation proceedings is not de novo, but on record and assignments of error. State v. Carraway, 160 Miss. 263, 134 So. 846, 1931 Miss. LEXIS 209 (Miss. 1931).

Appeal to circuit court in suit of eminent domain, brought in county court, is not triable de novo on appeal to circuit court, § 1497, Code of 1930 (§ 2766, Code of 1942) not being applicable. City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140, 1931 Miss. LEXIS 181 (Miss. 1931).

9. —Statutory damages or penalties.

A circuit court judge did not exceed his authority by assessing statutory damages of fifteen percent against a party for failure to prosecute its appeal from the county court. Johnson, Ltd. v. Signa, 410 So. 2d 1320, 1982 Miss. LEXIS 1879 (Miss. 1982).

Code 1942, § 1616 makes applicable to appeals from county courts damages imposed by Code 1942, § 1971, in the event that judgment or decree of the court below is affirmed or the appellant fails to prosecute his appeal. Excel Saw & Tool Co. v. Micor Corp., 265 So. 2d 926, 1972 Miss. LEXIS 1382 (Miss. 1972).

Court in construing statutes relating to imposition of penalties on unsuccessful appeals must look to substance rather than form. Hawkins Hardware Co. v. Crews, 176 Miss. 434, 169 So. 767, 1936 Miss. LEXIS 146 (Miss. 1936).

Where landlord brought suit to recover rent accompanied by an attachment, penalty on affirmance of judgment on landlord’s appeal should have been calculated on money judgment recovered by tenant for wrongful suing out of attachment and not on property attached. Hawkins Hardware Co. v. Crews, 176 Miss. 434, 169 So. 767, 1936 Miss. LEXIS 146 (Miss. 1936).

County court’s money judgment for claimant being affirmed by circuit court and Supreme Court, claimant could recover statutory damages. Brandon v. Interstate Life & Acci. Co., 149 Miss. 814, 116 So. 739, 1928 Miss. LEXIS 99 (Miss. 1928).

RESEARCH REFERENCES

ALR.

Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief. 45 A.L.R.5th 531.

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 75- 109, 155.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal And Error, Forms 851 et seq.

CJS.

4 C.J.S., Appeal and Error §§ 157 et seq., 137, 222 et seq., 213, 230-233, 281, 284, 282, 419-421.

Law Reviews.

Mandatory assessment of damages against an unsuccessful appellant: A constitutional analysis, 53 Miss. L. J. 281, June, 1983.

Inherent Judicial Rule Making Authority and the Right to Appeal: Time for Clarification, 22 Miss. C. L. Rev. 57, Fall, 2002.

§ 11-51-81. Appeals to the county court.

All appeals from courts of justices of the peace, special and general, and from all municipal courts shall be to the county court under the same rules and regulations as are provided on appeals to the circuit court, but appeals from orders of the board of supervisors, municipal boards, and other tribunals other than courts of justice of the peace and municipal courts, shall be direct to the circuit court as heretofore. And from the final judgment of the county court in a case appealed to it under this section, a further appeal may be taken to the circuit court on the same terms and in the same manner as other appeals from the county court to the circuit court are taken: Provided that where the judgment or record of the justice of the peace, municipal or police court is not properly certified, or is not certified at all, that question must be raised in the county court in the absence of which the defect shall be deemed as waived and by such waiver cured and may not thereafter be raised for the first time in the circuit court on the appeal thereto; and provided further that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court.

HISTORY: Codes, 1930, § 705; 1942, § 1617; Laws, 1926, ch. 131.

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 —

Municipal police courts and police justices generally, see §§21-23-1 et seq.

JUDICIAL DECISIONS

1. Constitutionality.

2. Validity.

3. Construction and application generally.

4. Appeal to Supreme Court.

5. —Constitutional question.

6. Judgments or orders on appeal.

6. Appeal dismissed.

1. Constitutionality.

Miss. Code Ann. §11-51-81’s “three-court rule” is unconstitutional because it usurps the Mississippi Supreme Court’s constitutional rule-making power and violates the doctrine of separation of powers. Thus, any litigant whose case originates in either justice court or municipal court, and whose case is ultimately decided by the circuit court, whether it be via a trial de novo or on appellate review from a final judgment of the county court conducted by the circuit court under the applicable statute, shall have the right to appeal to the Mississippi Supreme Court. Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

2. Validity.

Provision of this section [Code 1942, § 1617] limiting appeal from circuit court to Supreme Court in cases originating in justice of peace, municipal or police court, held not invalid as denying equal protection of law. Worley v. Pappas, 161 Miss. 330, 135 So. 348, 1931 Miss. LEXIS 256 (Miss. 1931).

3. Construction and application generally.

Appellate court had jurisdiction to hear a landlord’s appeal as the appeal was from the tenant’s counterclaim that was originally filed in the county court. Johnson v. Brooks, 915 So. 2d 536, 2005 Miss. App. LEXIS 970 (Miss. Ct. App. 2005).

Defendant’s appeal from his convictions for indecent exposure, reckless driving, and malicious mischief was dismissed as the appeal was not accompanied by the necessary formal allowance of either the circuit judge or a Supreme Court justice as required by Miss. Code Ann. §11-51-81. Johnson v. State, 879 So. 2d 1057, 2004 Miss. App. LEXIS 554 (Miss. Ct. App. 2004), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Where a landlord brought an action against a tenant and others who were claiming to have an interest in lease for rent owing and possession of premises, and where a judgment was rendered against the tenant and others and their sureties, even though the tenant did not appeal the others in interest with the tenant and their sureties could prosecute an appeal. Treuting v. Guice, 224 Miss. 794, 80 So. 2d 829, 1955 Miss. LEXIS 542 (Miss. 1955).

This section [Code 1942, § 1617] expressly applies to criminal as well as to civil cases. State v. Warren, 197 Miss. 13, 19 So. 2d 491, 1944 Miss. LEXIS 268 (Miss. 1944), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

A case carried from the court of a justice of the peace to a county court for the purpose of reviewing a judgment is an appeal within the meaning of this section [Code 1942, § 1617] a writ of certiorari being one of the methods by which appellate jurisdiction is exercised. SCHWARTZ v. MCKAY, 184 Miss. 422, 185 So. 200, 185 So. 811, 1938 Miss. LEXIS 315 (Miss. 1938).

Where appeal bond for less than statutory amount was approved, appeal from justice court to county court was not void but only defective, and county court could enter nonsuit on appellant’s motion. Keys v. Borden, 178 Miss. 173, 171 So. 887, 1937 Miss. LEXIS 174 (Miss. 1937).

On appeal from justice court to county court, no demand for jury is necessary. Speir v. Moseley, 158 Miss. 63, 130 So. 53, 1930 Miss. LEXIS 18 (Miss. 1930).

On appeal from justice to county court, appellant’s obtaining delay to week in which cases before court without jury came up held not waiver of jury trial. Speir v. Moseley, 158 Miss. 63, 130 So. 53, 1930 Miss. LEXIS 18 (Miss. 1930).

Criminal case in which justice was disqualified because of interest on appeal to county court is tried de novo. State v. Dearman, 152 Miss. 6, 118 So. 349, 1928 Miss. LEXIS 204 (Miss. 1928).

4. Appeal to Supreme Court.

Once an appeal is before the Supreme Court under §11-51-81, it is there for all purposes as the Supreme Court’s jurisdiction extends to “appeals,” which are entire cases, and not merely isolated or discrete issues therein; however, it is within the discretion of the Supreme Court to decline to consider nonconstitutional issues and restrict review to issues of general importance in the administration of justice, or to protect a party from substantial and irreparable injury. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

An appeal to the Supreme Court would be dismissed where the case originated in justice court, was tried de novo in county court and was appealed on the record to the circuit court, and nothing in the record indicated the allowance of the appeal by the circuit judge or by a judge of the Supreme Court. Davidson v. State, 592 So. 2d 1006, 1992 Miss. LEXIS 3 (Miss. 1992), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

The requirements under §11-51-81 that a case originating in municipal court, appealed to county court and there tried de novo, and from county court appealed to circuit court and by that court affirmed, may not be appealed to the Supreme Court of Mississippi unless (1) a constitutional question is necessarily involved and (2) then only upon the allowance of an appeal by the circuit judge or by a judge of the Supreme Court-are jurisdictional requirements. Thus, an appeal would be dismissed where the record failed to reflect that the appeal was allowed by a circuit judge or by a judge of the Supreme Court and no constitutional violation or constitutional question had been alleged or presented to the Supreme Court for appellate review; the appeal would be dismissed even though the jurisdictional issue was not raised in the appellate briefs, since the Supreme Court has a duty to raise on its own motion a question of jurisdiction of an appeal even though such question is not raised by either party. Sumrall v. Jackson, 576 So. 2d 1259, 1991 Miss. LEXIS 94 (Miss. 1991), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Where a defendant entered a plea of nolo contendere in municipal court and was found guilty, appealed to the county court and, following a trial de novo, was again convicted and sentenced to pay a fine, and thereafter appealed to the circuit court in which the case was heard and the conviction and sentence affirmed, the defendant’s appeal to the Supreme Court would be dismissed on the ground that the defendant had failed to present his “constitutional claims” before the circuit court and had therefore precluded appeal to the Supreme Court. Alt v. Biloxi, 397 So. 2d 897, 1981 Miss. LEXIS 2005 (Miss. 1981), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Upon an appeal to the supreme court from the circuit court under this section, only the constitutional question is considered. Gaughf v. Jackson, 243 Miss. 50, 137 So. 2d 190, 1962 Miss. LEXIS 312 (Miss. 1962).

The presence of a constitutional question and the granting of an appeal by the circuit judge must concur in order to justify such an appeal to the supreme court. Wells v. State, 201 Miss. 249, 29 So. 2d 119, 1947 Miss. LEXIS 393 (Miss. 1947), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

An appeal to the Supreme Court will not lie from a misdemeanor conviction in a justice of the peace court which has been appealed to the county court and thence to the circuit court, where no constitutional question is involved. Kitchens v. State, 198 Miss. 346, 22 So. 2d 493, 1945 Miss. LEXIS 204 (Miss. 1945), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

There can be no appeal to Supreme Court in a case originating in justice court and thence appealed to county court and from that court to circuit court, unless a constitutional question is involved. State v. Warren, 197 Miss. 13, 19 So. 2d 491, 1944 Miss. LEXIS 268 (Miss. 1944), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Supreme Court has no jurisdiction to entertain an appeal from circuit court affirming conviction in county court in a proceeding on charge of operating house of ill fame, which originated in justice court, where no constitutional question is involved and there has been no order by the circuit judge or any judge of Supreme Court allowing the appeal. Keeton v. State, 197 Miss. 11, 19 So. 2d 477, 1944 Miss. LEXIS 267 (Miss. 1944), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Where a suit on a note commenced in justice of the peace court was by agreement of the parties transferred for trial to the county court, this section [Code 1942, § 1617] did not prevent an appeal to the supreme court from a judgment of the circuit court affirming judgment in the county court, where by reason of such agreement the cause occupied the same status as if it had been first instituted in the county court, and no appeal had been perfected from the justice of the peace court since there had been no judgment to appeal from. Peebles v. Miles, 189 Miss. 623, 198 So. 29, 1940 Miss. LEXIS 130 (Miss. 1940).

If a circuit court wrongfully dismisses an appeal to it from a county court, the appellant has not had his day in the former court which this section [Code 1942, § 1617] contemplates, and consequently it does not bar him from appealing to the supreme court for the correction of that error. SCHWARTZ v. MCKAY, 184 Miss. 422, 185 So. 200, 185 So. 811, 1938 Miss. LEXIS 315 (Miss. 1938).

When a case has been properly appealed from a county court to a circuit court, that court should take jurisdiction thereof and try it in the manner provided by Code 1942, § 704, and it is from judgments then rendered that this section [Code 1942, § 1617] forbids appeals to the supreme court. SCHWARTZ v. MCKAY, 184 Miss. 422, 185 So. 200, 185 So. 811, 1938 Miss. LEXIS 315 (Miss. 1938).

Appeal should be allowed to Supreme Court where defendant’s constitutional rights are invaded by admitting evidence obtained by illegal search or where constitutional question is doubtful. Johnson v. Hattiesburg, 170 Miss. 527, 155 So. 418, 1934 Miss. LEXIS 173 (Miss. 1934), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

Appeal in case originating in justice court and appealed to county and circuit courts will be dismissed unless appeal involves constitutional question. Williams v. State, 160 Miss. 489, 135 So. 199, 1931 Miss. LEXIS 215 (Miss. 1931), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

5. —Constitutional question.

Appellate court was procedurally barred from reaching the merits of defendant’s non-constitutional issues because the appellate court was limited to issues that involved constitutional questions. Sasser v. City of Richland, 850 So. 2d 206, 2003 Miss. App. LEXIS 627 (Miss. Ct. App. 2003), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

A constitutional question is required for an appeal from a municipal court to the Mississippi Supreme Court. Barrett v. State, 491 So. 2d 833, 1986 Miss. LEXIS 2504 (Miss. 1986), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

No constitutional question was presented within Supreme Court’s appellate jurisdiction in liquor prosecution claimed to involve illegal search, where defendant, before search of closet, told policeman he was pouring whisky into commode and that closet was public. Johnson v. Hattiesburg, 170 Miss. 527, 155 So. 418, 1934 Miss. LEXIS 173 (Miss. 1934), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

6. Judgments or orders on appeal.

A county court’s enhancement of a defendant’s sentence for breach of the peace from $50 to $250 on appeal from the municipal court, was proper since the fine fell within the breach of the peace statute’s sentencing guideline and there was no evidence that the enhancement was reflective of judicial vindictiveness. Jones v. Meridian, 552 So. 2d 820, 1989 Miss. LEXIS 422 (Miss. 1989).

In replevin against sheriff who seized automobile under unconstitutional provision of taxing statute, where county court, on appeal from justice court, erroneously rendered judgment for defendant, circuit court, on appeal from county court, should have reversed county court’s judgment and tried case de novo. Holloway v. Jordan, 170 Miss. 99, 154 So. 340, 1934 Miss. LEXIS 116 (Miss. 1934).

Where defendant was tried in county court for removing and concealing personal property on which there was lien, but was convicted of larceny, and court, after hearing evidence in accordance with circuit court’s order on appeal, failed to enter correct judgment, judgment would be reversed, and cause remanded to circuit court for trial de novo. Wardlaw v. State, 158 Miss. 400, 130 So. 513, 1930 Miss. LEXIS 70 (Miss. 1930).

6. Appeal dismissed.

Where defendant was convicted of driving under the influence offense, careless driving, and speeding in the Municipal Court of the City of Florence, and the conviction was affirmed by the Rankin County Court and then the Rankin County Circuit Court, no further appeal was permitted pursuant to Miss. Code Ann. §11-51-81 (Rev. 2002); although a constitutional issue was presented (defendant alleged a denial of equal protection), an appeal was not specifically allowed by either the circuit judge or by a judge of the supreme court. Estate of Beckley v. Beckley, 2007 Miss. App. LEXIS 82 (Miss. Ct. App. Jan. 16, 2007).

Appeal was dismissed because it was procedurally barred due to the absence of the second jurisdictional requirement of Miss. Code Ann. §11-51-81 (2002); the circuit court denied defendant’s motion for reconsideration of judgment, or in the alternative, to certify a constitutional question, and there was nothing in the appellate court’s file to indicate that defendant presented a request to the Mississippi Supreme Court to allow the appeal, nor that any such request was granted by a justice of the Mississippi Supreme Court. Withers v. City of Pearl, 919 So. 2d 1050, 2005 Miss. App. LEXIS 469 (Miss. Ct. App. 2005), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

RESEARCH REFERENCES

Am. Jur.

47 Am. Jur. 2d (Rev), Justices of the Peace §§ 31 et seq., 32 et seq.

CJS.

51 C.J.S., Justices of the Peace §§ 129 et seq.

§ 11-51-83. Appeals from unlawful entry and detainer court.

Either party aggrieved by the judgment of the justices rendered in a case of unlawful entry and detainer, may, after final judgment, appeal to the circuit court of the county, within five days after the rendition of the judgment, by entering into bond with sufficient sureties, to be approved by the justice before whom the complaint was made, or in his absence before another justice, who tried the case, in a penalty double the amount of the rent recovered, but never less than Two Hundred Dollars ($200.00), payable to the opposite party, conditioned for the payment of such judgment as the circuit court may render against him. Such appeal shall operate as a supersedeas. The justice shall send to the circuit court all the papers and proceedings, and a transcript of all orders and judgments in said cause, and shall deliver the same to the clerk of the circuit court, to be there docketed for trial. The circuit court shall, at the first term, hear and determine the cause anew on its merits, in a summary way. On the trial in the circuit court, the plaintiff may claim for all arrears of rent due at the time of such trial, or for the use and occupation of the premises up to that time. The court shall cause judgment to be entered against the defendant and his sureties on the appeal bond, for the amount found to be due, and award a fieri facias thereon, with legal interest and all costs; but the judgment against the surety shall not exceed the penalty of the appeal bond.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 7 (17); 1857, ch. 42, art. 18; 1871, § 1594; 1880, § 2657; 1892, § 81; 1906, § 82; Hemingway’s 1917, § 62; 1930, § 63; 1942, § 1197.

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 —

Actions for unlawful entry and detainer generally, see §§11-25-1 et seq.

Appeals from county court, see §11-51-79.

Written demand for appeal in lieu of bond in unlawful entry and detainer, see §11-51-103.

Taxation of costs in cases appealed from inferior tribunals, see §11-53-71.

JUDICIAL DECISIONS

1. In general.

2. Appeal bond.

3. Time for appeal.

4. Matters determinable on appeal.

5. Jurisdiction.

1. In general.

Where a circuit court affirmed the decision of justice of peace for landlord in a suit to remove tenant for nonpayment of rent, the circuit court properly allowed the landlord rent up to the time of the judgment. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

In an unlawful entry and detainer action where throughout the trial the appellant did not ask for rent, and the case was submitted to jury without any mention of rent, and no claim for rent was made until after the trial and verdict, and thereby the appellant obtained a distinctive advantage in the presentation of his case to the jury, such an advantage was sufficient to constitute a waiver of claim for rent. Producers Gin Ass'n (AAL) v. Beck, 215 Miss. 263, 60 So. 2d 642, 1952 Miss. LEXIS 561 (Miss. 1952).

A judgment is “rendered” when pronounced in open court at conclusion of trial, and not at time it is entered on docket. Simpson v. Boykin, 118 Miss. 701, 79 So. 852, 1918 Miss. LEXIS 123 (Miss. 1918), overruled, Jackson v. Schwartz, 240 So. 2d 60, 1970 Miss. LEXIS 1267 (Miss. 1970).

An unlawful entry and detainer case upon appeal is tried anew on its merits. Harvey v. Clark, 81 Miss. 166, 32 So. 906, 1902 Miss. LEXIS 113 (Miss. 1902).

2. Appeal bond.

Circuit court held authorized to permit amendment of $100 appeal bond from unlawful entry and detainer court to meet statutory requirement for appeal bond of not less than $200, or to permit execution of new bond. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

Defendant’s bond on appeal from unlawful entry and detainer court to circuit court did not obligate sureties to pay costs of plaintiff’s appeal to Supreme Court from circuit court’s judgment for defendant, resulting in reversal and remand. Cahn v. Wright, 119 Miss. 107, 80 So. 494, 1918 Miss. LEXIS 16 (Miss. 1918).

If the bond state the date of the judgment as subsequent to its own date, the defect can be cured by amendment or by giving a new bond. Leavenworth v. Crittenden, 62 Miss. 573, 1885 Miss. LEXIS 111 (Miss. 1885).

The bond must conform substantially to the statute. Warren v. Trustees of African Baptist Church, 50 Miss. 223, 1874 Miss. LEXIS 48 (Miss. 1874).

Objection to an appeal bond from the justice’s court must be made in the circuit court, they cannot be raised for the first time in the Supreme Court. Poston v. MHOON, 49 Miss. 620, 1873 Miss. LEXIS 154 (Miss. 1873).

The appeal taken after judgment is not a matter which can appear in the record of the special tribunal; it is sufficient if the appeal bond appear to have been executed and approved within five days after the rendition of the judgment. Busby v. Grayham, 26 Miss. 210, 1853 Miss. LEXIS 77 (Miss. 1853).

3. Time for appeal.

Appeal to circuit court taken within 10 days from county court judgment in unlawful entry and detainer action held timely, five-day statute being inapplicable. McCandless v. Day, 162 Miss. 859, 140 So. 337, 1932 Miss. LEXIS 172 (Miss. 1932).

Appeal from a judgment dispossessing a tenant, rendered by justice of peace, must be taken within five days after pronouncement of judgment. Simpson v. Boykin, 118 Miss. 701, 79 So. 852, 1918 Miss. LEXIS 123 (Miss. 1918), overruled, Jackson v. Schwartz, 240 So. 2d 60, 1970 Miss. LEXIS 1267 (Miss. 1970).

The limitation of time on appeals from justice’s court to the circuit court prescribed herein does not apply to criminal cases. Ex parte Grubbs, 80 Miss. 288, 31 So. 741, 1902 Miss. LEXIS 243 (Miss. 1902).

4. Matters determinable on appeal.

In a suit to remove tenant for nonpayment of rent, where the Supreme Court affirmed judgment for the landlord, money judgment would be assessed against tenant’s supersedeas bond for rent in default for the period in which an appeal was pending. Williams v. Shivers, 222 Miss. 626, 76 So. 2d 838, 1955 Miss. LEXIS 646 (Miss. 1955).

The Legislature has adopted this section as part of the proceeding under Code 1906, § 2885, by a landlord to get possession of the rented premises and in such proceeding a recovery of rent is also permissible though not claimed in the affidavit. Stollenwerck v. Eure, 120 Miss. 233, 82 So. 68, 1919 Miss. LEXIS 80 (Miss. 1919).

Where, in proceedings to dispossess a tenant for holding over under Code 1892, § 2552, he appealed, it was error not to allow him to file in the circuit court for the first time the affidavit denying the facts averred by the landlord provided for in such section so as to entitle him to a trial on the merits of the issue so made. Harvey v. Clark, 81 Miss. 166, 32 So. 906, 1902 Miss. LEXIS 113 (Miss. 1902).

A defendant who has appealed to the circuit court cannot there complain of defects in the warrant or of the record to show the formal organization of the court of the justices. Brown v. Ashford, 56 Miss. 677, 1879 Miss. LEXIS 190 (Miss. 1879).

5. Jurisdiction.

Matter was brought in a county that did not have a county court; therefore, the matter was filed in justice court. Upon the ruling in justice court, the aggrieved party, which was a creditor, could appeal the ruling to the circuit court for a new hearing on the merits, albeit in a summary manner. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Based on Section 11-51-83, a tenant may obtain a supersedeas bond to stay a removal order while his appeal is pending. A supersedeas bond is a separate bond from the appeal bond. Grubbs, August 9, 1996, A.G. Op. #96-0523.

The court may grant a supersedeas upon proof of the party requesting the same, applying the same standards as for a preliminary injunction. In all cases in which a discretionary supersedeas is granted, the court may require a bond sufficient to protect the interests of the other parties. This opinion supersedes MS AG Op., Grubbs (August 9, 1996) and MS AG Op., Smith (June 27, 1997). Parker, Aug. 27, 2004, A.G. Op. 04-0407.

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d (Rev), Appellate Review §§ 75, 76, 94.

CJS.

4 C.J.S., Appeal and Error §§ 86-89.

§ 11-51-85. Appeals from judgment of justice court judge in civil cases.

Either party may appeal to the circuit court of the county from the judgment of any justice court judge if appeal be demanded and bond given within (10) days after the rendition of the judgment. The party taking the appeal shall give bond with a sufficient surety, to be approved by the clerk of the justice court payable to the opposite party, in the penalty of double the amount of the judgment, or double the value of the property involved, and all costs accrued and likely to accrue in the case, and in no case to be less than One Hundred Dollars ($100.00), conditioned for the payment of such judgment as the circuit court may render against him; and the appeal, when demanded and bond given, shall operate as a supersedeas of execution on such judgment. Any defendant against whom a civil judgment may have been entered by a justice court judge who, by reason of his poverty, is not able to give bond may nevertheless appeal from such judgment on his making an affidavit that, by reason of his poverty, he is unable to give bond or other security to obtain such appeal, but the appeal in such case shall not operate as a supersedeas of the judgment. The clerk of the justice court shall at once make up a transcript of the record and properly transmit the same to the clerk of the circuit court, within fifteen (15) days after the bond has been filed. In counties where there is a county court, appeals from justice courts shall be to the county court.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 17; 1857, ch. 58, art. 23; 1871, § 1332; 1880, § 2353; 1892, § 82; 1906, § 83; Hemingway’s 1917, § 63; 1930, § 64; 1942, § 1198; Laws, 1912, ch. 203; Laws, 1973, ch. 374, § 1; Laws, 1981, ch. 471, § 40; Laws, 1982, ch. 423, § 24, eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

Laws, 1982, ch. 423, § 29, provides as follows:

“SECTION 29. Sections 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 27 and 28 of this act shall take effect and be in force from and after March 31, 1982. Sections 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of this act shall take effect and be in force 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.”

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

Cross References —

As to appeal from judgment of justice of the peace in proceedings for partition of property, see §11-21-81.

Appeals from county court, see §11-51-79.

Appeals to county court, see §11-51-81.

Written demand for appeal in certain cases, see §11-51-103.

Taxation of costs in cases appealed from inferior tribunals, see §11-53-71.

Appeal from judgment of justice of the peace under state stock law, see §69-13-23.

Appeals in proceedings against tenants holding over, see §89-7-47.

Appeals from party wall proceedings before justice of the peace, see §89-15-9.

Restrictions on who may sign bonds, see Miss. Uniform Circuit and County Court Rule 1.07.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction of circuit court.

3. Amount in controversy.

4. Appeal bond.

5. —Validity of bond.

6. —Liability on bond.

7. Time for appeal.

8. Notice of appeal.

9. Persons entitled to appeal.

10. Effect of appeal.

11. Proceedings on appeal.

12. —Omissions in record, effect of.

13. —Evidence.

14. Nonsuit or dismissal of appeal.

1. In general.

This statute is mandatory and jurisdictional. Carney v. Moore, 130 Miss. 658, 94 So. 890, 1922 Miss. LEXIS 249 (Miss. 1922).

Judgment is “rendered” when pronounced in open court at conclusion of trial, and not at time it is entered on docket. Simpson v. Boykin, 118 Miss. 701, 79 So. 852, 1918 Miss. LEXIS 123 (Miss. 1918), overruled, Jackson v. Schwartz, 240 So. 2d 60, 1970 Miss. LEXIS 1267 (Miss. 1970).

Neither this section (§ 83, Code 1906) nor § 95, Code 1906 (Code 1942, § 1211) have any application to an appeal provided for by § 80 (Code 1942, § 1195), giving a right of appeal to any person aggrieved by the action of a municipality. Polk v. Hattiesburg, 110 Miss. 80, 69 So. 1005, 1915 Miss. LEXIS 19 (Miss. 1915).

The statute (Code 1942, § 1147, supra) denying the right to appeal from a judgment by confession or consent does not apply to the courts of justices of the peace. James v. Woods, 65 Miss. 528, 5 So. 106, 1888 Miss. LEXIS 38 (Miss. 1888).

2. Jurisdiction of circuit court.

While it is true that on appeals to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

The circuit court did not err in overruling a motion to dismiss an appeal on the ground that the defendant appellant had failed to introduce in evidence the judgment, appeal bond and other proceedings had in a justice of the peace court so as to show that the circuit court had jurisdiction of the appeal from the justice court, the transcript of the proceedings and judgment of the justice of the peace being properly a part of the record in the supreme court although not offered in evidence in the circuit court, there being no showing as to the absence of the transcript from the justice of the peace court when the case was tried in the circuit court nor on the record before the supreme court. Myrick v. Mansell, 184 Miss. 701, 184 So. 447, 185 So. 581, 1938 Miss. LEXIS 311 (Miss. 1938).

On appeal from justice court, circuit court’s jurisdiction is original, and case is tried de novo, though no written pleadings are required. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

Circuit court has no jurisdiction of an appeal from justice court of prosecuting witness taxed with cost. Town of Lumberton v. Peyton, 143 Miss. 777, 109 So. 740, 1926 Miss. LEXIS 320 (Miss. 1926).

Where a county is divided into two judicial districts and the district of a justice of the peace is partly in each of them, an appeal by a plaintiff from the justice court must be to the circuit court of the district of defendant’s residence, the circuit court of the other district being without jurisdiction of such appeal. Nations v. Lovejoy, 77 Miss. 36, 25 So. 494, 1899 Miss. LEXIS 49 (Miss. 1899).

The time prescribed for the appeal is a limitation of the jurisdiction of the circuit court and an appeal taken after the prescribed time is a nullity. Kramer v. Holster, 55 Miss. 243, 1877 Miss. LEXIS 130 (Miss. 1877); Campbell v. McCormick Motorcar Co., 147 Miss. 777, 113 So. 175, 1927 Miss. LEXIS 323 (Miss. 1927).

3. Amount in controversy.

Contradictory statements as to value or damage involved will not defeat circuit court’s jurisdiction unless there was fraudulent undervaluation of property or damage for the purpose of conferring jurisdiction in the justice of the peace court. Harper v. Adams, 141 Miss. 806, 106 So. 354, 1925 Miss. LEXIS 222 (Miss. 1925).

In appeal to Supreme Court amount in controversy is determined by value of the property replevied. Gresham v. Kennedy, 128 Miss. 469, 91 So. 129, 1922 Miss. LEXIS 131 (Miss. 1922).

4. Appeal bond.

Where an appellant had timely filed a proper appeal bond, he ought not be deprived of his right of appeal through the dereliction of the justice of the peace in failing to properly certify the transcript and the appellant should be allowed reasonable time in which to have perfected the transcript of proceedings in the justice of peace court. Adams v. Day, 212 Miss. 778, 55 So. 2d 490, 1951 Miss. LEXIS 510 (Miss. 1951).

Appellant, if desiring to avail himself of arbitrary refusal of justice of peace to approve appeal bond, should leave bond with justice before expiration of time for appeal. Tripp Furniture Co. v. Cox, 160 Miss. 90, 133 So. 238, 1931 Miss. LEXIS 156 (Miss. 1931).

Failure to deliver bond for appeal from justice of the peace within 10 days required dismissal, though delivery was impossible because of flood condition. Lamas v. Renaldo, 151 Miss. 325, 117 So. 331, 1928 Miss. LEXIS 274 (Miss.), modified, 152 Miss. 353, 118 So. 417, 1928 Miss. LEXIS 214 (Miss. 1928).

Rejection by justice of appeal bond, after previous timely acceptance and approval, did not defeat appeal. Helton v. Federal Credit Co., 147 Miss. 95, 113 So. 196, 1927 Miss. LEXIS 335 (Miss. 1927).

Bond on appeal from justice being less than required by Code 1906 § 83 amended by Laws 1912 ch 203 denial of motion to dismiss appeal for insufficient bond without amendment or leave was error. De Laval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522, 1926 Miss. LEXIS 87 (Miss. 1926).

Bond insufficient when purporting to refer to entirely different appeal where nothing in record shows it was executed to perfect appeal therein described. Nevers v. Gullotta, 96 So. 513 (Miss. 1923).

Failure to file appeal bond within ten days after rendition of judgment not excused by fact justice was absent from home during last three days of period. Jacobs v. Jackson, 128 Miss. 434, 91 So. 36, 1922 Miss. LEXIS 126 (Miss. 1922).

Where justice refused to approve bond, but offered to receive it and investigate, but it was not left with him or presented in due time, the appeal was properly dismissed. Jacobs v. Jackson, 128 Miss. 434, 91 So. 36, 1922 Miss. LEXIS 126 (Miss. 1922).

Plaintiff appealing from justice’s court need not give bond in double value of property where defendant in possession. Jacobs v. Jackson, 128 Miss. 434, 91 So. 36, 1922 Miss. LEXIS 126 (Miss. 1922).

Appeal from circuit court in case originating in justice’s court dismissed where there was no bond in the record on appeal from the justice to the circuit court. Gaines v. State, 48 So. 182 (Miss. 1909).

When an appeal bond has been tendered to a justice of the peace, the names of the sureties read to him, their sufficiency unquestioned and his approval of the bond stated by him, such facts constitute a legal filing which he cannot afterward invalidate. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

Filing a bond in accordance with the statute within the time, with a justice of the peace, operates to remove a civil case to the circuit court. A justice cannot defeat the appeal by demanding a bond in a greater sum than that required by statute or by refusing to approve a proper bond. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

Failure by a justice of the peace to endorse his approval of an appeal bond within five days will not affect the validity of the appeal if his subsequent approval endorsed thereon shows that the bond was filed within five days. Winner & Meyer v. Williams, 82 Miss. 669, 35 So. 308, 1903 Miss. LEXIS 201 (Miss. 1903).

An appeal bond is not bad because made before and in anticipation of the adverse judgment. James v. Woods, 65 Miss. 528, 5 So. 106, 1888 Miss. LEXIS 38 (Miss. 1888).

One who sues in forma pauperis cannot appeal without bond. Woods v. Davidson, 57 Miss. 206, 1879 Miss. LEXIS 44 (Miss. 1879).

5. —Validity of bond.

Although the approval of an appeal bond by the constable did not meet the requirements of the statutes, when the justice of peace accepted the bond and treated it as a valid appeal bond and filed it, along with other papers in the cause, in office of the clerk of the circuit court, the court had a right to permit the bond to be amended to conform with the statutory requirements, and to permit the justice of the peace to approve the bond, notwithstanding the expiration of the ten day period of time allowed by statute for the filing of such appeal bond. Pennyan v. Alexander, 229 Miss. 704, 91 So. 2d 728, 1957 Miss. LEXIS 317 (Miss. 1957).

Where bond on appeal to county court from justice court was approved, although it was for a sum less than statutory amount, and case was transferred to county court, appeal was not void but only defective, and county court had jurisdiction to enter nonsuit on appellant’s motion which prevented justice court judgment from having effect of a final adjudication. Keys v. Borden, 178 Miss. 173, 171 So. 887, 1937 Miss. LEXIS 174 (Miss. 1937).

Bond must be presented to and approved by justice who tried the case, and where case was begun before one justice, who because of disqualification transferred it to another justice as provided by law, an appeal bond filed with and approved by the first was of no effect. McPhail v. Blaun, 95 Miss. 53, 48 So. 725 (Miss. 1909).

An appeal bond in a penalty less than the minimum sum required by law is not void but may be amended under Code 1892 § 92. Denton v. Denton, 77 Miss. 375, 27 So. 383, 1899 Miss. LEXIS 71 (Miss. 1899).

6. —Liability on bond.

Partner held not liable as surety on appeal bond from justice of peace court, which bond partner had not signed and had not authorized to be signed, and of which he had no knowledge, and did not acquiesce in signing of his name to bond by clerk of partnership. Woodruff v. Lillis, 174 Miss. 91, 164 So. 225, 1935 Miss. LEXIS 69 (Miss. 1935).

Partner held not liable on appeal bond from justice of peace court which was signed with authority of copartner in name of partnership, where partnership was mercantile firm not engaged in business of making surety bonds and copartner was without authority to bind partner unless authorized so to do by scope of partnership, or by partner. Woodruff v. Lillis, 174 Miss. 91, 164 So. 225, 1935 Miss. LEXIS 69 (Miss. 1935).

A surety on an appeal bond ceases to be liable when pending the appeal the principal is discharged, his liability as surety not being continued by Bankrupt Act 1898 § 16. Goyer Co. v. Jones, 79 Miss. 253, 30 So. 651, 1901 Miss. LEXIS 52 (Miss. 1901).

If a defendant appeal to the circuit court and there dismiss his appeal, the plaintiff is entitled to judgment on the appeal bond for his debt, damages, and costs. Pass v. Payne, 63 Miss. 239, 1885 Miss. LEXIS 56 (Miss. 1885).

7. Time for appeal.

Motion to set aside justice court judgment and appeal, made and taken over 10 days after rendition of judgment, were void and did not justify sheriff’s refusal to levy execution issued on judgment. Womack v. Richardson, 168 Miss. 347, 151 So. 173, 1933 Miss. LEXIS 209 (Miss. 1933).

The time prescribed for the appeal is a limitation of the jurisdiction of the circuit court and an appeal taken after the prescribed time is a nullity. Campbell v. McCormick Motorcar Co., 147 Miss. 777, 113 So. 175, 1927 Miss. LEXIS 323 (Miss. 1927); Kramer v. Holster, 55 Miss. 243, 1877 Miss. LEXIS 130 (Miss. 1877).

The limitations of time on appeals from justices’ courts to the circuit court, prescribed by Code 1892 §§ 82 and 84 do not apply to criminal cases. Ex parte Grubbs, 80 Miss. 288, 31 So. 741, 1902 Miss. LEXIS 243 (Miss. 1902).

8. Notice of appeal.

Notice of appeal from justice of the peace to the circuit court, unnecessary. Corry v. Buddendorff, 98 Miss. 98, 54 So. 84, 1910 Miss. LEXIS 104 (Miss. 1910).

Where appellant on appeal from a justice gave the bond required by the statute and the record and papers were sent up, no notice of appeal was necessary. Rowe v. W. D. Cannon, Jr., & Co., 84 Miss. 101, 36 So. 146, 1904 Miss. LEXIS 11 (Miss. 1904).

When a bond is executed and the record transmitted, the case stands for trial de novo in the circuit court without new process to the appellee. Rowe v. W. D. Cannon, Jr., & Co., 84 Miss. 101, 36 So. 146, 1904 Miss. LEXIS 11 (Miss. 1904).

9. Persons entitled to appeal.

A plaintiff whose suit before a justice of the peace has been dismissed because of his absence and failure to prosecute may appeal to the circuit court from the judgment of dismissal. Horn v. McKinnon, 78 Miss. 307, 29 So. 149 (Miss. 1900).

When a judgment was rendered by a justice of the peace against three persons, only two of whom executed an appeal-bond, the appeal was good as to the two and the judgment remained in force as to the defendant who did not give bond. Roberts v. Weiler & Haas, 52 Miss. 299, 1876 Miss. LEXIS 213 (Miss. 1876).

10. Effect of appeal.

Justice court’s judgment is vacated or superseded by appeal to circuit court, although revived by dismissal of appeal. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

11. Proceedings on appeal.

On appeal from justice court, transcript is presumptively correct, there being no suggestion from either party that anything is omitted. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

Circuit court may dismiss an appeal from conviction before a justice for failure to appear without inquiring into the trial affidavit’s validity. Gillie v. State, 126 Miss. 832, 89 So. 665, 1921 Miss. LEXIS 81 (Miss. 1921).

Where the next term of the circuit court after trial of claimant’s issue on November 13th convened on November 17th, and bond and papers in the case were not filed in the circuit court at that term, and there was no proceeding to require justice to send them up, a motion in the following March term to dismiss the appeal for want of prosecution was properly denied. Dalee Bros. v. Wigginton, 111 Miss. 749, 72 So. 149, 1916 Miss. LEXIS 383 (Miss. 1916).

12. —Omissions in record, effect of.

Where justice did not file in circuit court certified transcript of record, judgment on appeal from circuit court will be reversed and remanded. Gordon v. Sykes, 155 Miss. 705, 125 So. 85, 1929 Miss. LEXIS 340 (Miss. 1929).

Failure of justice to certify record in bastardy proceedings did not defeat jurisdiction of circuit court, justice proceedings being preliminary. Shelby v. Harvey, 152 Miss. 180, 118 So. 896, 1928 Miss. LEXIS 232 (Miss. 1928).

Order overruling motion to dismiss appeal from justice court will be affirmed, where record does not contain testimony introduced thereon. Campbell v. McCormick Motorcar Co., 147 Miss. 777, 113 So. 175, 1927 Miss. LEXIS 323 (Miss. 1927).

Where record in case originating in justice’s court contains no transcript of proceedings therein, judgment of court below must be reversed and case remanded. Burrow v. State, 143 Miss. 221, 108 So. 505, 1926 Miss. LEXIS 258 (Miss. 1926).

Where neither justice’s transcript nor original papers certified by the justice showed service of process supporting default judgment, an execution on the judgment was properly quashed and the garnishment discharged by circuit court on appeal. Carrollton Hardware & Implement Co. v. Marshall, 117 Miss. 224, 78 So. 7, 1918 Miss. LEXIS 166 (Miss. 1918), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Where transcript fails to show any judgment rendered in justice court where the action originated, or that any appeal bond was given, appeal will be dismissed for want of jurisdiction. Kimball v. Louisville & N. R. Co., 94 Miss. 396, 48 So. 230, 1908 Miss. LEXIS 39 (Miss. 1908).

Where record does not show any appeal from the justice nor any judgment there, the Supreme Court is without jurisdiction. Bush v. Ross, 90 Miss. 32, 43 So. 70 (Miss. 1907).

Where the sum demanded is less than $200 in a case at law and the record does not show that it was appealed from a justice court to the circuit court, the Supreme Court of its own motion will dismiss the appeal to it for want of jurisdiction, although the stenographer’s notes recite that the case was appealed to the circuit court from a justice court. Gardner v. New Orleans & N. E. R. Co., 78 Miss. 640, 29 So. 469, 1900 Miss. LEXIS 160 (Miss. 1900), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

After the submission of such a case, the Supreme Court will remand it to the docket and award a certiorari to perfect the record only on condition that the appellant pay all costs of the appeal. Gardner v. New Orleans & N. E. R. Co., 78 Miss. 640, 29 So. 469, 1900 Miss. LEXIS 160 (Miss. 1900), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

If on appeal the record shows the amount in controversy to be below the original jurisdiction of the circuit court and does not show that the case originated in a justice court, the Supreme Court will reverse the judgment and dismiss the proceedings in the circuit court, leaving the judgment in the justice court, if any, to stand. Andrews v. Wallace, 72 Miss. 291, 16 So. 204, 1894 Miss. LEXIS 64 (Miss. 1894).

13. —Evidence.

On appeal from justice court, alleged defect in transcript, or omission of essential parts, cannot be supplied by oral testimony. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

Notes sued on in justice court, not shown by transcript to have been lodged with justice, held inadmissible over objection in circuit court, notwithstanding plaintiff testified that he filed notes with declaration. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

14. Nonsuit or dismissal of appeal.

Where bond on appeal to county court from justice court was approved, although it was for a sum less than statutory amount, and case was transferred to county court, appeal was not void but only defective, and county court had jurisdiction to enter nonsuit on appellant’s motion which prevented justice court judgment from having effect of a final adjudication. Keys v. Borden, 178 Miss. 173, 171 So. 887, 1937 Miss. LEXIS 174 (Miss. 1937).

Although a dismissal of an appeal from justice court to circuit court revives the judgment in the justice court, plaintiff could suffer voluntary nonsuit without thereby reinstating justice court’s judgment so as to render it res judicata. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

If a defendant appeal to the circuit court and there dismiss his appeal, the plaintiff is entitled to judgment on the appeal bond for his debt, damages and costs. Pass v. Payne, 63 Miss. 239, 1885 Miss. LEXIS 56 (Miss. 1885).

OPINIONS OF THE ATTORNEY GENERAL

Party who perfects civil appeal is not required to prepay any costs into Circuit Court Clerk’s office as condition of perfecting said appeal; all costs involved in civil appeal from Justice Court are required to be included in amount of appeal bond which is conditioned for payment of such judgment and costs as Judge may levy, said costs are not due until final determination of appeal. Barnette, July 29, 1992, A.G. Op. #92-0567.

The 10-day rule in Section 11-51-85 does not apply to replevins; someone wishing to appeal a replevin has 30 days to file a notice of appeal with the circuit court under Rule 5.04 of the Uniform Rules of Circuit and County Court Practice. Aldridge, May 13, 2005, A.G. Op. 05-0180.

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 209- 221, 539- 553.

47 Am. Jur. 2d (Rev), Justices of the Peace §§ 31 et seq.

CJS.

4 C.J.S., Appeal and Error §§ 237, 238, 246.

4 C.J.S., Appeal and Error § 357.

51 C.J.S., Justices of the Peace §§ 129 et seq.

§ 11-51-87. Copy of record to be transmitted.

The justice court judge may prepare and certify his record to the following effect, viz.:

“Copy of the record of the proceedings before , a justice court judge of county, in the case therein set forth, to wit: (here copy the entries on the docket and certify as follows, viz.:) “State of Mississippi, County: “I, , a justice court judge of the said county, certify that the foregoing is a copy of the record of the proceedings before me in the case stated therein, as appears on my docket. “Given under my hand, this the day of , A.D. . Justice Court Judge”

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HISTORY: Codes, 1880, § 2241; 1892, § 83; 1906, § 84; Hemingway’s 1917, § 64; 1930, § 65; 1942, § 1199; Laws, 1981, ch. 471, § 41; Laws, 1982, ch. 423, § 28, made eff from and after January 1, 1984, or, with respect to a given county, from and after such earlier date as the county appoints a justice court clerk pursuant to §9-11-27(3).

Editor's Notes —

Laws, 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).

In the effective date language for Chapter 423, Laws of 1982, in this section's history information, there is a reference to provisions found in Section 9-11-27(3). Section 9-11-27 has been amended several times since this section was amended by Chapter 423, Laws of 1982, and subsection (3) has been deleted. Corresponding provisions are now found in subsection (1) of Section 9-11-27.

JUDICIAL DECISIONS

1. Certification of record.

2. —Waiver of defective certification.

3. Transcript, necessity and sufficiency of.

4. Evidence.

1. Certification of record.

The many cases cited under this section [Code 1972, §11-51-87] holding that the Supreme Court acquired no jurisdiction in cases where a copy of the judgment of the justice of the peace was not included in the record on appeal are overruled because of two statutes-Code 1972, §§11-3-35 and99-35-143 which were apparently overlooked by the early cases. Avera v. State, 300 So. 2d 787, 1974 Miss. LEXIS 1636 (Miss. 1974).

Although under the statutes it is still mandatory that the justice of the peace, or the mayor or police justice, in appeals from their courts, shall transmit to the proper clerk a certified copy of the record of the proceedings with the original papers, process and appeal bond, yet, if no objection is made to the transcript before or during the trial of the case on its merits, it will be conclusively presumed that the transcript was before the court and complied in every respect with the law. Whittington v. State, 218 Miss. 631, 67 So. 2d 515, 1953 Miss. LEXIS 581 (Miss. 1953).

Where the supreme court affirmed a judgment of the circuit court dismissing the appeal of defendant from conviction in a mayor’s court for selling beer to a minor, and granting a writ of procedendo to the mayor’s court, to be issued “unless appellant shall perfect the record of the certificate of the mayor’s court,” and the circuit court dismissed appellant’s motion thereafter to reinstate the cause in the circuit court and to issue a writ of certiorari to compel the mayor to certify the transcript to the circuit court on the ground that the writ was not applied for within the six months allowed by law, such appellant was entitled to have the cause reinstated in the circuit court and to an issuance of the writ of certiorari, since the fact remained that the appellant had never been able to obtain a trial of the cause in the circuit court on its merits. Fassman v. Centreville, 184 Miss. 520, 186 So. 641, 1939 Miss. LEXIS 67 (Miss. 1939).

Justice certifying at bottom of a petition for appeal, that the same had been filed and appeal granted as of a certain date, will not be permitted to impeach his own certificate. Town of Purvis v. Rees, 99 Miss. 636, 55 So. 481, 1911 Miss. LEXIS 233 (Miss. 1911).

A copy of the record must be certified to by the justice of the peace or police justice, and certification by the city clerk is insufficient. Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911).

Where proceedings in justice court are not certified as required and are not shown in any manner, circuit court is without jurisdiction. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Where a copy of the justice’s docket entries, judgment, affidavit and appeal bond were filed in the circuit court, defendant, after a trial and conviction in the circuit court cannot raise the objection that there was no certificate of the justice to his record. Calhoun v. State, 86 Miss. 553, 38 So. 660, 1905 Miss. LEXIS 70 (Miss. 1905).

It is a copy of the docket entries and judgments which the justice of the peace is to certify. Hughston v. Cornish, 59 Miss. 372, 1882 Miss. LEXIS 119 (Miss. 1882).

2. —Waiver of defective certification.

Defective certification of record by justice may not be cured or waived. Xydias v. Pellman, 121 Miss. 400, 83 So. 620, 1919 Miss. LEXIS 174 (Miss. 1919).

3. Transcript, necessity and sufficiency of.

The many cases cited under this section [Code 1972, §11-51-87] holding that the Supreme Court acquired no jurisdiction in cases where a copy of the judgment of the justice of the peace was not included in the record on appeal are overruled because of two statutes-Code 1972, §§11-3-35 and99-35-143 which were apparently overlooked by the early cases. Avera v. State, 300 So. 2d 787, 1974 Miss. LEXIS 1636 (Miss. 1974).

Justice court record of conviction which included copy of affidavit charging unlawful possession of liquor, warrant for arrest, appearance bond, and judgment followed by justice’s certificate that such was true copy of record was sufficient to give circuit court jurisdiction of appeal under statute. Stewart v. State, 179 Miss. 31, 174 So. 579, 1937 Miss. LEXIS 22 (Miss. 1937).

Transcript of proceedings of unlawful entry and detainer court held to show substantial compliance with statute, conferring jurisdiction on circuit court on appeal thereto, although justice did not precede his record with statement that it was copy of record of proceedings had before him. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

Failure of judgment of justice of peace on appeal to circuit court, to set forth judicial district, did not invalidate it. Dotson v. State, 156 Miss. 365, 126 So. 38, 1930 Miss. LEXIS 180 (Miss. 1930).

Where justice did not file in circuit court certified transcript of record, judgment on appeal from circuit court will be reversed and remanded. Gordon v. Sykes, 155 Miss. 705, 125 So. 85, 1929 Miss. LEXIS 340 (Miss. 1929).

On failure of record to show judgment of justice, certificate or transcript, circuit court has not jurisdiction of prosecution for assault and battery. Cook v. State, 144 Miss. 519, 110 So. 443, 1926 Miss. LEXIS 413 (Miss. 1926).

Where record shows that circuit court did not have jurisdiction because transcript was not filed at time case was tried, but shows that since the circuit court trial, such transcript had been filed, the Supreme Court must reverse and remand the case for a new trial. Salers v. State, 142 Miss. 88, 107 So. 375, 1926 Miss. LEXIS 72 (Miss. 1926).

Transcript of proceedings before justice of the peace is essential to jurisdiction of appeal to circuit court; in case appealed from justice of the peace court to circuit court, judgment of latter court must be reversed, where record does not show transcript of first named court was in circuit court at time of trial. Dorsey v. State, 141 Miss. 600, 106 So. 827, 1926 Miss. LEXIS 464 (Miss. 1926).

Appeal from the circuit court, which was without jurisdiction because of insufficiency of the record, will be heard in the Supreme Court only where the record is perfected by certiorari. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

A circuit court has no jurisdiction of an appeal taken from a justice of the peace unless the record shows that a judgment was rendered by the justice of the peace and an appeal bond executed. Ball, Brown & Co. v. Sledge, 82 Miss. 747, 35 So. 214, 1903 Miss. LEXIS 199 (Miss. 1903), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

If appellants do not have the transcript show a judgment of justice of the peace and bond for appeal to the circuit court, the Supreme Court will dismiss an appeal to it from the circuit court with leave to reinstate only upon completing the record and paying all costs of appeal. Gardner v. New Orleans & N. E. R. Co., 78 Miss. 640, 29 So. 469, 1900 Miss. LEXIS 160 (Miss. 1900), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

4. Evidence.

While it is true that on appeals to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer on the circuit court jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

On appeal it must be assumed that certification of record of justice claimed to have been made but lost was not established, and that circuit court did not have jurisdiction, there being no judgment of the circuit court showing such establishment. Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

Record certified to circuit court on appeal from justice of the peace, including copy of the judgment of justice, is competent evidence in the circuit court. Broadus v. Calhoun, 139 Miss. 28, 103 So. 808, 1925 Miss. LEXIS 125 (Miss. 1925).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 385 et seq., 227 et seq., 410.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 546.1 (notice to clerk – to prepare record – clerk’s and reporter’s transcripts – selective reporter’s transcript and designated papers for clerk’s transcript).

CJS.

4 C.J.S., Appeal and Error § 554.

§ 11-51-89. Justice, mayor, or police justice to deliver papers to circuit clerk.

The justice of the peace, mayor or police justice of any city, town or village from whose decision an appeal shall be taken, shall at once transmit to the clerk of that court a certified copy of the record of the proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant, and the clerk shall docket the same, and shall be entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The justice, mayor, or police justice of any city, town or village shall, at all times, be allowed to amend his return according to the facts.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 3; 1857, ch. 58, art. 24; 1871, § 1333; 1880, § 2353; 1892, § 84; 1906, § 85; Hemingway’s 1917, § 65; 1930, § 66; 1942, § 1200.

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 —

Appeals to county court, see §11-51-81.

JUDICIAL DECISIONS

1. Transmission of record.

2. —Certificate of justice.

3. Failure to transmit record.

4. Jurisdiction on appeal.

5. Omissions in record, effect of.

6. Notice of appeal.

7. Time for appeal.

8. Evidence.

9. Amendment of return.

1. Transmission of record.

Although under the statutes it is still mandatory that the justice of the peace, or the mayor or police justice, in appeals from their courts, shall transmit to the proper clerk a certified copy of the record of the proceedings with the original papers, process and appeal bond, yet, if no objection is made to the transcript before or during the trial of the case on its merits, it will be conclusively presumed that the transcript was before the court and complied in every respect with the law. Whittington v. State, 218 Miss. 631, 67 So. 2d 515, 1953 Miss. LEXIS 581 (Miss. 1953).

Where a justice of the peace had not certified record made in his court as required by statute, and there was no objection made at the trial, the objection could not be made for the first time in the Supreme Court. Laird v. Forbes, 214 Miss. 250, 58 So. 2d 660, 1952 Miss. LEXIS 464 (Miss. 1952).

On appeal from justice court, transcript is presumptively correct; there being no suggestion from either party that anything is omitted. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

This section [Code 1942, § 1200] is so modified by Code 1892, § 2432 (Code 1906, § 2763) that an appeal may be heard after the term following, provided the record is sent up by the successor of a justice of the peace who died after appeal taken but before the record had been sent up. Brennan v. Straas, 85 Miss. 341, 37 So. 956, 1904 Miss. LEXIS 163 (Miss. 1904).

The record of which the justice is to transmit a copy is his docket entries and judgments. Hughston v. Cornish, 59 Miss. 372, 1882 Miss. LEXIS 119 (Miss. 1882).

2. —Certificate of justice.

The circuit court acquires no jurisdiction of a cause appealed from the justice of peace court where the transcript of the proceedings in the latter court, filed in the circuit court, is not authenticated by the certificate of the justice of peace. Adams v. Day, 212 Miss. 778, 55 So. 2d 490, 1951 Miss. LEXIS 510 (Miss. 1951).

Where an appellant timely filed a proper appeal bond, he ought not to be deprived of his right of appeal through the dereliction of the justice of peace in failing to properly certify the transcript and the appellant should be allowed reasonable time in which to have perfected the transcript of proceedings in the justice of peace court. Adams v. Day, 212 Miss. 778, 55 So. 2d 490, 1951 Miss. LEXIS 510 (Miss. 1951).

A copy of the record must be certified to by the justice of the peace or police justice, and certification by the city clerk is insufficient. Greenwood v. Weaver, 96 Miss. 604, 50 So. 981, 1910 Miss. LEXIS 154 (Miss. 1910); Allen v. State, 98 Miss. 192, 53 So. 498, 1910 Miss. LEXIS 51 (Miss. 1910); Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911).

Where, on appeal, a copy of the justice’s docket entries, judgment, affidavit and appeal bond were filed in the circuit court, defendant, after trial and conviction in the circuit court cannot raise objection that there was no certificate of the justice to his record. Calhoun v. State, 86 Miss. 553, 38 So. 660, 1905 Miss. LEXIS 70 (Miss. 1905).

3. Failure to transmit record.

Circuit court may issue necessary writ to compel justice of peace to send up record to circuit court. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

Such a writ though commonly called a certiorari is not a certiorari. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

It may be issued without appellant giving any other than the appeal bond and when performance of duty by a justice is effected the trial will be de novo. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

4. Jurisdiction on appeal.

While it is true that on appeal to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer on the circuit court jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

Certificates must be attached to record of proceedings before justice of peace to warrant circuit court jurisdiction on appeal. Pierce v. Jernigan, 151 Miss. 758, 118 So. 898, 1928 Miss. LEXIS 375 (Miss. 1928).

When the circuit court acquired no jurisdiction on appeal from a police justice of a city, the Supreme Court has no jurisdiction. Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911).

Where the proceedings in justice court are not certified and are not shown in any manner, the circuit court is without jurisdiction. McPhail v. Blann, 47 So. 666 (Miss. 1908), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 1908 Miss. LEXIS 163 (Miss. 1908).

A circuit court has no jurisdiction of an appeal taken from a justice of the peace unless the record shows that a judgment was rendered by the justice of the peace and an appeal bond executed. Ball, Brown & Co. v. Sledge, 82 Miss. 747, 35 So. 214, 1903 Miss. LEXIS 199 (Miss. 1903), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

5. Omissions in record, effect of.

Where, on appeal from justice court, no certified transcript appeared in record, and objection raising such question was specifically made in circuit court, such court had no authority to render judgment on merits, but should dismiss appeal. Land v. Coffey, 171 Miss. 91, 157 So. 89, 1934 Miss. LEXIS 210 (Miss. 1934).

Not necessary that judgment of police court by mayor pro tempore show mayor’s absence or incapacity. City of Pascagoula v. Sharp, 136 Miss. 756, 101 So. 683, 1924 Miss. LEXIS 163 (Miss. 1924).

Defendant convicted of misdemeanor in the circuit court, on appeal from justice of peace cannot complain on motion in arrest of judgment of absence of a duly certified copy of the proceedings of the justice of the peace, if there be on file in the circuit court the affidavit, a copy of the judgment, and his appeal bond. Calhoun v. State, 86 Miss. 553, 38 So. 660, 1905 Miss. LEXIS 70 (Miss. 1905).

If appellants do not have the transcript show a judgment of the justice of the peace and bond for appeal to the circuit court, the Supreme Court will dismiss an appeal to it from the circuit court with leave to reinstate only upon completing the record and paying all costs of appeal. Gardner v. New Orleans & N. E. R. Co., 78 Miss. 640, 29 So. 469, 1900 Miss. LEXIS 160 (Miss. 1900), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

6. Notice of appeal.

When a bond is executed and the record transmitted, the case stands for trial de novo in the circuit court without new process to the appellee. Rowe v. W. D. Cannon, Jr., & Co., 84 Miss. 101, 36 So. 146, 1904 Miss. LEXIS 11 (Miss. 1904).

7. Time for appeal.

The limitations of time on appeals from justices’ courts to the circuit court, prescribed by Code 1892, §§ 82, 84, do not apply to criminal cases. Ex parte Grubbs, 80 Miss. 288, 31 So. 741, 1902 Miss. LEXIS 243 (Miss. 1902).

8. Evidence.

On appeal from justice court, alleged defect in transcript, or omission of essential parts, cannot be supplied by oral testimony. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

Notes sued on in justice court, not shown by transcript to have been lodged with justice, held inadmissible over objection in circuit court, notwithstanding plaintiff testified that he filed notes with declaration. Anthony v. Bassett, 172 Miss. 206, 159 So. 854, 1935 Miss. LEXIS 137 (Miss. 1935).

Record certified to the circuit court on appeal from justice court, including copy of judgment of justice of peace is competent evidence in the circuit court. Broadus v. Calhoun, 139 Miss. 28, 103 So. 808, 1925 Miss. LEXIS 125 (Miss. 1925).

Where the record shows that the judgment was rendered several days after the return day of the summons, it is presumed, nothing appearing to the contrary, that the court met on the return day and adjourned from day to day until the judgment was entered. Leavenworth v. Crittenden, 62 Miss. 573, 1885 Miss. LEXIS 111 (Miss. 1885).

9. Amendment of return.

Under this section [Code 1942, § 1200], circuit court properly permitted police justice to amend printed form used for certifying to transcript of proceedings had before him, which amendment consisted of striking out printed words “Ex officio Justice of the Peace” as they appeared underneath signature of person who had tried case as police justice, and inserting in lieu thereof the words “Police Justice of said City,” caption of transcript having been changed from “State of Mississippi” to “City of Brookhaven,” amendment being made according to facts. Serio v. Brookhaven, 208 Miss. 620, 45 So. 2d 257, 1950 Miss. LEXIS 279 (Miss. 1950).

Justice of the peace should have been permitted to amend the affidavit for appeal in accordance with the facts, by affixing his signature and the date, and a refusal to allow such amendment required reversal of the judgment of dismissal of the appeal. Green v. Boon, 57 Miss. 617, 1880 Miss. LEXIS 17 (Miss. 1880).

The power to allow amendments should be liberally exercised. Weddell v. Seal, 45 Miss. 726, 1871 Miss. LEXIS 125 (Miss. 1871); Green v. Boon, 57 Miss. 617, 1880 Miss. LEXIS 17 (Miss. 1880).

Mere omission, in affidavit for an appeal from the judgment of a justice of the peace, of the date of the affidavit, if in fact the affidavit was made and filed in proper time, may be amended to show the true date. Weddell v. Seal, 45 Miss. 726, 1871 Miss. LEXIS 125 (Miss. 1871).

RESEARCH REFERENCES

ALR.

Amendment of record of judgment in state civil case to correct judicial errors and omissions. 50 A.L.R.5th 653.

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 402- 412, 417, 424.

CJS.

4 C.J.S., Appeal and Error §§ 564, 565-572.

§ 11-51-91. Trial of cases on appeal from justice of the peace.

On appeal from a justice of the peace court to the circuit court the case shall be tried anew, in a summary way, without pleadings in writing, at the first term, unless cause be shown for a continuance; provided, however, that the circuit court shall have the authority and power of its own motion or on motion of any party to require that defenses to the action shall be set up by way of answer in like manner as is required by Section 11-7-59, Mississippi Code of 1972.

If it appear on the trial that the suit was brought before a justice of the peace not having jurisdiction thereof, the circuit court shall reverse the judgment of the justice and dismiss the case. If the defendant be the appellant and judgment be rendered for the plaintiff in the original suit for a sum equal to or greater than he recovered before the justice of the peace, ten per cent (10%) damages upon the amount thereof shall be included in such judgment; and similarly, when there has been an appeal from a justice of the peace court to a county court, and any judgment against an appellant shall be rendered against the principal and his sureties jointly and when there shall be an appeal from the county court to the circuit court and the same shall be affirmed, then, there shall be added five per cent (5%) damages, and judgment shall be rendered against the principal and the sureties on the appeal bond jointly. In all such cases where the amount in controversy exceeds the sum of Fifty Dollars ($50.00), either party shall be entitled to an appeal to the supreme court as in cases originating in the circuit court, and the plaintiff may also appeal to the supreme court in cases where the difference between his demand and the judgment in his favor shall exceed said sum.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 2 (19); 1857, ch. 58, art. 25; 1871, § 1334; 1880, § 2354; 1892, § 85; 1906, § 86; Hemingway’s 1917, § 66; 1930, § 67; 1942, § 1201; Laws, 1964, ch. 301, § 1.

Editor’s Notes —

Section 11-7-59 referred to in this section was repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

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 —

Appeals from county court, see §11-51-79.

Appeals to county court, see §11-51-81.

Costs in case of appeal from justice of the peace, see §11-53-51.

Taxation of costs in case appealed from inferior tribunal, see §11-53-71.

Procedural requirements for appeals to circuit courts, see MRCrP 18.1 and 29.1 through 29.5.

JUDICIAL DECISIONS

1. In general.

2. Appeal bond.

3. Jurisdiction of circuit court.

4. Appeals to Supreme Court.

5. —Amount in controversy, determination of.

6. —Consent of parties, effect of.

7. Effect of appeal.

8. Proceedings on appeal.

9. —Amendment.

10. —Parties.

11. —Evidence.

12. —Judgment.

13. —Damages.

14. Nonsuit or dismissal of appeal.

1. In general.

Under this section [Code 1972, §11-51-91], when the circuit court determined on appeal that the justice court did not have jurisdiction of the defendants, the circuit court only had authority to reverse and dismiss the case against each defendant, and jurisdiction could not be conferred upon the proper justice court by remand of the circuit court; such action would have been harmless if the second justice court had acquired jurisdiction independently of remand, by the filing of new affidavits in that court. Avera v. State, 305 So. 2d 359, 1974 Miss. LEXIS 1484 (Miss. 1974).

On appeal of a cause by the defendant from justice’s court to the circuit court, the successful plaintiff may be required to furnish security for cost, since the case will be tried anew, as if never tried before, and the rights of both parties are the same as if the suit had been originally brought in the circuit court; the plaintiff, who must now prosecute his case anew, enjoys the privilege of seeking a larger judgment and is confronted with the possibility of liability or further cost in the event he loses his case or recovers judgment for less than the amount appealed from. Archer v. High, 193 Miss. 361, 9 So. 2d 647, 1942 Miss. LEXIS 118 (Miss. 1942).

Code 1892, § 79 (Code 1942, § 1195) allows appeal from board of supervisors to the circuit court for final judgment there. This section [Code 1942, § 1201] (§ 85, Code 1892) limits appeals from the circuit court to cases where amount in controversy exceeds $50 if originating in the courts of justices of the peace. There is no such limitation as to boards of supervisors, and the board may appeal from a judgment without bond. Marshall County v. Rivers, 88 Miss. 45, 40 So. 1007, 1906 Miss. LEXIS 153 (Miss. 1906).

This section [Code 1942, § 1201] applies in bastardy proceedings. Norton v. Wicker, 87 Miss. 365, 39 So. 809, 1905 Miss. LEXIS 138 (Miss. 1905).

2. Appeal bond.

Where bond on appeal to county court from justice court was approved, although it was for a sum less than statutory amount, and case was transferred to county court, appeal was not void but only defective, and county court had jurisdiction to enter nonsuit on appellant’s motion which prevented justice court judgment from having effect of a final adjudication. Keys v. Borden, 178 Miss. 173, 171 So. 887, 1937 Miss. LEXIS 174 (Miss. 1937).

Partner held not liable as surety on appeal bond from justice of peace court, which bond partner had not signed and had not authorized to be signed, and of which he had no knowledge, and did not acquiesce in signing of his name to bond by clerk of partnership. Woodruff v. Lillis, 174 Miss. 91, 164 So. 225, 1935 Miss. LEXIS 69 (Miss. 1935).

Partner held not liable on appeal bond from justice of peace court which was signed with authority of copartner in name of partnership, where partnership was mercantile firm not engaged in business of making surety bonds and copartner was without authority to bind partner unless authorized so to do by scope of partnership, or by partner. Woodruff v. Lillis, 174 Miss. 91, 164 So. 225, 1935 Miss. LEXIS 69 (Miss. 1935).

3. Jurisdiction of circuit court.

While it is true that on appeals to the circuit courts from the justice of the peace courts in both civil and criminal cases, it is necessary that a certified transcript of the record of the proceedings in the justice courts be filed in the circuit court in order to confer on the circuit court jurisdiction to try the appeal on its merits, it is not necessary to produce in evidence on the trial such transcript or any essential part thereof in order to confer jurisdiction on the circuit court to try the case upon its merits. Lee v. State, 190 Miss. 877, 1 So. 2d 492, 2 So. 2d 148, 1941 Miss. LEXIS 85 (Miss. 1941).

On appeal from justice court, circuit court’s jurisdiction is original, and case is tried de novo, though no written pleadings are required. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

Jurisdictional amount may be supplied by counterclaim. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

Circuit court on appeal from justice court has jurisdiction if justice court had jurisdiction. Hobbs Auto Co. v. Jones, 140 Miss. 610, 105 So. 764, 1925 Miss. LEXIS 296 (Miss. 1925).

Where the district of a justice of the peace is partly in each of two circuit court districts, an appeal must be prosecuted to the circuit court of the district of defendant’s residence. Woods v. Speer, 127 Miss. 593, 90 So. 322, 1921 Miss. LEXIS 262 (Miss. 1921).

On appeal from a judgment of a justice of the peace, rendered without service of summons or appearance of defendant, the circuit court had no other jurisdiction than the justice of the peace had, the appellant’s appearance in the circuit court conferring no original jurisdiction on that court. Dufour v. Chapotel, 75 Miss. 656, 23 So. 387, 1898 Miss. LEXIS 10 (Miss. 1898).

Under this section [Code 1942, § 1201] it is only where the justice has no jurisdiction and not where he makes an erroneous decision within his jurisdiction that the case is to be dismissed by the circuit court on appeal. Goodbar v. Owen, 70 Miss. 840, 12 So. 556, 1893 Miss. LEXIS 6 (Miss. 1893).

If the plaintiff loses an attachment suit in the justice court and appeals, the circuit court has jurisdiction, though after dismissal by the plaintiff, to allow claimant’s issues to be made up and tried, although no trial thereof was had in the justice’s court, for the appeal of the plaintiff on the main issues carries with it all such ancillary issues as are necessary to determine the proper disposition of the property. Dreyfus v. Mayer, 69 Miss. 282, 12 So. 267, 1891 Miss. LEXIS 107 (Miss. 1891).

The appearance of the defendant before a justice of the peace is not a waiver of his right to raise the question of jurisdiction in the circuit court. Heggie v. Stone, 70 Miss. 39, 12 So. 253, 1892 Miss. LEXIS 113 (Miss. 1892).

The circuit court has no other jurisdiction than such as the justice had. Glass v. Moss, 2 Miss. 519, 1837 Miss. LEXIS 9 (Miss. 1837); Crapoo v. Grand Gulf, 17 Miss. 205, 1848 Miss. LEXIS 4 (Miss. 1848); Stier v. Surget, 18 Miss. 154, 1848 Miss. LEXIS 67 (Miss. 1848); Scofield v. Pensons, 26 Miss. 402, 1853 Miss. LEXIS 108 (Miss. 1853), overruled, Pittman v. Chrisman, 59 Miss. 124, 1881 Miss. LEXIS 82 (Miss. 1881); Richardson v. Davis, 59 Miss. 15, 1881 Miss. LEXIS 64 (Miss. 1881); Askew v. Askew, 49 Miss. 301, 1873 Miss. LEXIS 115 (Miss. 1873).

4. Appeals to Supreme Court.

Appeal from circuit court of case arising in justice court held not allowable, where not allowed by circuit court or Supreme Court judge. Gray v. Crump, 162 Miss. 251, 139 So. 463, 1932 Miss. LEXIS 138 (Miss. 1932), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

In case originating in justice court where plaintiff’s demand exceeds $50, and on appeal to circuit court, he recovers less than $50 he may appeal to the Supreme Court, if the difference between demand and judgment exceeds $50. Home Ins. Co. v. McFarland, 142 Miss. 555, 107 So. 383, 1926 Miss. LEXIS 77 (Miss. 1926).

Amount in controversy on appeal by defendant from judgment for plaintiff in circuit court for $25 does not exceed $50 necessary for appeal to Supreme Court, though in justice court, plaintiff had judgment for $150. Kelley v. Ladies' Aid Soc., 140 Miss. 580, 106 So. 627, 1926 Miss. LEXIS 479 (Miss. 1926).

Where Supreme Court is without jurisdiction, it will, of its own motion, raise it, and dismiss appeal. Kelley v. Ladies' Aid Soc., 140 Miss. 580, 106 So. 627, 1926 Miss. LEXIS 479 (Miss. 1926).

No appeal can be had where the judgment is for only $50. City of Pass Christian v. Lizana, 106 Miss. 470, 64 So. 209, 1913 Miss. LEXIS 157 (Miss. 1913).

Appeal to Supreme Court from circuit court in a case originating in justice court will be dismissed where the judgment appealed from is less than $50. Leake County v. Carr, 100 Miss. 91, 56 So. 345, 1911 Miss. LEXIS 25 (Miss. 1911).

An appeal lies to the Supreme Court from the judgment of a circuit court for $50, in a cause brought therein, this section [Code 1942, § 1201] limiting the right of appeal to cases where the judgment exceeds said sum, having reference only to suits begun before justices of the peace. Liles v. Cawthorn, 78 Miss. 559, 29 So. 834, 1900 Miss. LEXIS 178 (Miss. 1900).

Where the property claimed by a claimant exceeds $50 in value, and on appeal from a justice court has been subjected by the circuit court to an execution for more than that sum, the Supreme Court has jurisdiction of an appeal by the claimant, although the amount in the controversy in the original suit was less than $50. Andrews v. Partee, 79 Miss. 80, 29 So. 788, 1901 Miss. LEXIS 9 (Miss. 1901).

If on appeal from the circuit court the record shows the amount in controversy to be below its original jurisdiction and contains nothing to show that the case originated in a justice court, the Supreme Court will reverse the judgment and dismiss the proceedings in the circuit court, leaving the judgment in the justice court, if any, to stand. Andrews v. Wallace, 72 Miss. 291, 16 So. 204, 1894 Miss. LEXIS 64 (Miss. 1894).

If the circuit court judgment be less than fifty dollars, an appeal cannot be taken by the defendant to the Supreme Court, and this even if the amount demanded and recovered in the justice’s court be greater. Ward v. Scott, 57 Miss. 826, 1880 Miss. LEXIS 71 (Miss. 1880); Wimbush v. Chinault, 58 Miss. 234, 1880 Miss. LEXIS 113 (Miss. 1880).

If the plaintiff recover verdict for more than fifty dollars, he cannot remit the excess for the purpose of, and thereby prevent the defendant from, appealing; but if, on motion for a new trial before judgment, the plaintiff enter a remittitur because the court expressed the opinion that the judgment was excessive, the defendant will not be entitled to an appeal. Wimbush v. Chinault, 58 Miss. 234, 1880 Miss. LEXIS 113 (Miss. 1880).

5. —Amount in controversy, determination of.

The amount in controversy is limited to the principal of the claim, exclusive of interest, in determining the minimum amount requisite to an appeal from justice court to the Supreme Court. Gardner v. Bookout, 200 Miss. 158, 26 So. 2d 343, 1946 Miss. LEXIS 276 (Miss. 1946).

In replevin action in justice of peace court to recover horse worth $50, in which defendant filed counterclaim for $185 for wrongful suing out of writ, counterclaim gave Supreme Court jurisdiction of appeal. Garner v. Broom, 161 Miss. 734, 138 So. 336, 1931 Miss. LEXIS 309 (Miss. 1931).

Difference between amount sued on in justice court, with interest, and amount claimed by defendant by way of recoupment, held not amount involved, as respects Supreme Court’s jurisdiction of appeal. James v. Williams Furniture Co., 161 Miss. 358, 137 So. 101, 1931 Miss. LEXIS 266 (Miss. 1931).

Jurisdictional amount may be supplied by counterclaim. Crooke v. Deas & Duke, 146 Miss. 260, 111 So. 293, 1927 Miss. LEXIS 176 (Miss. 1927).

In an appeal in replevin the amount in controversy is determined by the value of the property replevied. Jacobs v. Jackson, 128 Miss. 434, 91 So. 36, 1922 Miss. LEXIS 126 (Miss. 1922); Gresham v. Kennedy, 128 Miss. 469, 91 So. 129, 1922 Miss. LEXIS 131 (Miss. 1922).

The jurisdiction of the Supreme Court of an issue made before a justice of the peace under Code 1906, § 2866, after seizure under a landlord’s attachment for rent or supplies, is determinable on his appeal by the sum for which he might have obtained judgment, there having been no trial on the merits in the circuit court. Schlicht v. Callicott, 76 Miss. 487, 24 So. 869, 1898 Miss. LEXIS 102 (Miss. 1898).

Upon an appeal to the Supreme Court from a judgment of the circuit court in favor of a landlord in an action of replevin by the tenant for property distrained for rent, begun in a justice court, the amount in controversy is determined by the rent due as adjudged by the circuit court, and not by the value of the property seized. Bittle v. Paine, 74 Miss. 494, 21 So. 250, 1896 Miss. LEXIS 169 (Miss. 1896).

The limit provided for an appeal has reference to the debt, demand, or damages in litigation, and not to interest on the judgment, or the costs or per centum added to the judgment. N. O., J. & G. N. R. Co. v. Evans, 49 Miss. 785, 1874 Miss. LEXIS 13 (Miss. 1874); Jackson v. Whitfield, 51 Miss. 202, 1875 Miss. LEXIS 35 (Miss. 1875); Ward v. Scott, 57 Miss. 826, 1880 Miss. LEXIS 71 (Miss. 1880); Davis v. Holberg, 59 Miss. 362, 1882 Miss. LEXIS 115 (Miss. 1882); Kiernan v. Germaine, 62 Miss. 75, 1884 Miss. LEXIS 22 (Miss. 1884); James v. Williams Furniture Co., 161 Miss. 358, 137 So. 101, 1931 Miss. LEXIS 266 (Miss. 1931).

6. —Consent of parties, effect of.

Where amount in controversy is insufficient under the statute to give Supreme Court jurisdiction, it cannot be given it by consent of parties. Kelley v. Ladies' Aid Soc., 140 Miss. 580, 106 So. 627, 1926 Miss. LEXIS 479 (Miss. 1926); James v. Williams Furniture Co., 161 Miss. 358, 137 So. 101, 1931 Miss. LEXIS 266 (Miss. 1931).

7. Effect of appeal.

Where a judgment rendered in the court of a justice of the peace against a garnishee was later set aside by the justice without authority, and an appeal subsequently taken, the trial in the circuit court should have been de novo, the judgment there rendered superseding that of the justice of the peace, and should have been that the petition be dismissed, leaving the original judgment rendered by the justice of the peace in the same force and effect it had been when the petition for setting it aside was filed. Lott v. Illinois C. R. Co., 193 Miss. 443, 10 So. 2d 96, 1942 Miss. LEXIS 125 (Miss. 1942).

Justice court’s judgment is vacated or superseded by appeal to circuit court, although revived by dismissal of appeal. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

8. Proceedings on appeal.

Debtors could not simply fail to defend a suit to collect a debt and also fail to appeal the default judgment entered against them, and then file suit and argue that the judgment, though not in dispute, was the result of fraud or abuse of process, especially in circumstances where their allegations of fraud and abuse of process were without merit; the proper avenue available to attack the judgment, the attorney’s fees awarded, and the alleged fraud, was to have defended the action in justice court or to make a timely appeal of the judgment to the circuit court, thus, the debtors were procedurally barred by the doctrine of res judicata from bringing any action concerning the default judgments of the justice court. Franklin Collection Serv. v. Stewart, 863 So. 2d 925, 2003 Miss. LEXIS 870 (Miss. 2003).

Recoupment may be interposed for the first time on the appeal to the circuit court, and no pleading is necessary. Criss v. Bailey, 243 Miss. 130, 137 So. 2d 160, 1962 Miss. LEXIS 324 (Miss. 1962).

On appeal to circuit court from judgment against defendant in civil action in justice of peace court, defendant cannot challenge jurisdiction of justice of peace over his person when he appeared in justice court, offered evidence and argued case before entry of judgment. Beck v. Kersh, 208 Miss. 879, 45 So. 2d 730, 1950 Miss. LEXIS 309 (Miss. 1950).

Criminal case, in which justice was disqualified because of interest, must, on appeal to county court, be tried de novo. State v. Dearman, 152 Miss. 6, 118 So. 349, 1928 Miss. LEXIS 204 (Miss. 1928).

Where appeal bond correctly recites appeal to the proper circuit court district, but appeal papers filed in other court district, it is error to dismiss the case. Woods v. Speer, 127 Miss. 593, 90 So. 322, 1921 Miss. LEXIS 262 (Miss. 1921).

Where next term of circuit court after trial of claimant’s issue on November 13 convened on November 17, and bond and papers in the case were not filed in the circuit court at that term, and there was no proceeding to require the justice to send them up, a motion in the following March term to dismiss the appeal for want of prosecution was properly denied. Dalee Bros. v. Wigginton, 111 Miss. 749, 72 So. 149, 1916 Miss. LEXIS 383 (Miss. 1916).

Appellant is not precluded from making an attack from the judgment rendered by a justice of the peace merely because he has executed an appeal bond to the circuit court. Adams v. Fidelity Mut. L. Ins. Co., 94 Miss. 433, 49 So. 119, 1909 Miss. LEXIS 368 (Miss. 1909).

A defendant who has been tried and convicted of a misdemeanor in the circuit court, on his appeal from the judgment of a justice of the peace, cannot complain on motion in arrest of judgment of the absence of a duly certified copy of the proceedings of the justice of the peace, if there be on file in the circuit court the affidavits on which he was tried, a copy of the judgment of the justice of the peace convicting him, and his appeal bond. Calhoun v. State, 86 Miss. 553, 38 So. 660, 1905 Miss. LEXIS 70 (Miss. 1905).

Appeals from judgments of justices of the peace are to be tried anew, as if never tried before, and any evidence may be set up for the first time in the circuit court. Illinois C. R. R. Co. v. Andrews, 61 Miss. 474, 1884 Miss. LEXIS 115 (Miss. 1884); Amory Independent Tel. Co. v. Cox, 103 Miss. 541, 60 So. 641, 1912 Miss. LEXIS 196 (Miss. 1912).

9. —Amendment.

Circuit court is authorized on appeal from justice of the peace to allow amendments to answers of garnishees, changing admission of indebtedness to attachment or judgment debtor to denial of such indebtedness. Wymond v. Gaude Service, Inc., 168 Miss. 678, 152 So. 60, 1934 Miss. LEXIS 361 (Miss. 1934).

Garnishee may amend answer in circuit court after appeal thereto from justice court. Green v. Western Union Tel. Co., 146 Miss. 703, 111 So. 750, 1927 Miss. LEXIS 218 (Miss. 1927).

Denial of motion to dismiss appeal for insufficient bond, without amendment of bond on request made and allowed, was error. De Laval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522, 1926 Miss. LEXIS 87 (Miss. 1926).

Statement of cause of action may be amended after appeal to circuit court to show true amount of damage. Harper v. Adams, 141 Miss. 806, 106 So. 354, 1925 Miss. LEXIS 222 (Miss. 1925).

Circuit court will not dismiss cause appealed from justice court because plaintiff without authority of court added item accruing subsequent to filing suit. Hobbs Auto Co. v. Jones, 140 Miss. 610, 105 So. 764, 1925 Miss. LEXIS 296 (Miss. 1925).

On appeal from justice court to circuit court, amount cannot be amended so as to increase the amount above justice court’s jurisdiction. Hobbs Auto Co. v. Jones, 140 Miss. 610, 105 So. 764, 1925 Miss. LEXIS 296 (Miss. 1925).

Suit in partnership name may be amended in the circuit court by inserting names of partners, and refusal to allow such amendment on application therefor is reversible error. McCullar & Co. v. Mink, 121 Miss. 829, 83 So. 907, 1920 Miss. LEXIS 124 (Miss. 1920).

10. —Parties.

Circuit court on appeal from justice may add other joint owner as coplaintiff. American R. E. Co. v. Roby, 129 Miss. 120, 91 So. 449, 1922 Miss. LEXIS 7 (Miss. 1922).

11. —Evidence.

Record certified to circuit court on appeal from justice’s court, including copy of judgment of justice, is competent evidence in circuit court. Broadus v. Calhoun, 139 Miss. 28, 103 So. 808, 1925 Miss. LEXIS 125 (Miss. 1925).

Evidence in support of a set-off, filed for the first time in the circuit court, should not be admitted, it being a cross-action. Marx v. Trussell, 50 Miss. 498, 1874 Miss. LEXIS 83 (Miss. 1874).

12. —Judgment.

On appeal to circuit court from judgment against defendant in justice of peace court in suit for breach of warranty, arising out of contract, amount involved being definite and fixed sum, on motion by plaintiff for default judgment, court properly entered judgment for amount sued for without awarding writ of inquiry and having jury assess amount of damages, defendant never having filed any kind of plea or denial. Beck v. Kersh, 208 Miss. 879, 45 So. 2d 730, 1950 Miss. LEXIS 309 (Miss. 1950).

Where defendant did not prosecute a cross-appeal from a judgment assessing him with costs of the appeal to circuit court and the cost of the trial de novo therein, such judgment is final, even if the cause should be affirmed. Douglas v. Warren, 44 So. 2d 853 (Miss. 1950).

Judgment against appellant on appeal from justice need not be against his sureties also, but, if against one surety must also be against the other. Helmer Bros. v. Hastings, 142 Miss. 403, 107 So. 551, 1926 Miss. LEXIS 95 (Miss. 1926).

Judgment in attachment suit for plaintiff affirmed on debt issue on appeal should be against both defendant and surety on appeal bond. Laurel Mills v. Ward, 137 Miss. 221, 102 So. 263, 1924 Miss. LEXIS 221 (Miss. 1924).

A judgment against appellant and only one of his two sureties is void and may be vacated on subsequent motion and the cause reinstated for hearing. Leathers v. Fred O. Howe & Co., 108 Miss. 1, 66 So. 280, 1914 Miss. LEXIS 158 (Miss. 1914).

A surety on an appeal bond, against whom judgment has been jointly rendered, is a “codebtor” within the bankrupt act. Bailey v. Reeves, 102 Miss. 438, 59 So. 802, 1912 Miss. LEXIS 71 (Miss. 1912).

13. —Damages.

Where there was a judgment in the justice of the peace court for $85 from which defendant prosecuted an appeal to the circuit court, where there is a jury verdict and judgment, also for $85, 10 per centum damages should have been added by the circuit court. Harper v. Adams, 141 Miss. 806, 106 So. 354, 1925 Miss. LEXIS 222 (Miss. 1925).

The circuit court rendered a judgment for the plaintiff for the full amount of his claim plus ten per cent damages. This was an error, as this section [Code 1942, § 1201] has no application to an appeal of a defeated plaintiff. Galloway v. Champlin, 101 Miss. 822, 58 So. 710, 1911 Miss. LEXIS 179 (Miss. 1911).

Where defendant’s appeal is dismissed the circuit court should enter judgment against appellant and the sureties on his bond for the amount for which judgment was rendered by the justice of the peace, with statutory damages and costs. Jacobs v. Johnson, 84 Miss. 450, 36 So. 544, 1904 Miss. LEXIS 70 (Miss. 1904).

It is only where the defendant appeals to the circuit court and plaintiff there recovers as much or more than the judgment in the justice court that damages can be added to the judgment. Louisville & N. R. Co. v. Pool, 72 Miss. 487, 16 So. 753, 1894 Miss. LEXIS 109 (Miss. 1894).

14. Nonsuit or dismissal of appeal.

In an appeal from an entry of a default judgment by a justice court, a circuit court, in dismissing the appeal, addressed a husband’s claim that he had not been properly served by a collection agency. The circuit court correctly found that not only had the husband failed to produce credible evidence to support his claim, but that the husband failed to timely challenge the service of process and, thus, waived his right to dispute the sufficiency of the process. Laffitte v. Southern Fin. Sys., 30 So.3d 1236, 2009 Miss. App. LEXIS 599 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 153 (Miss. 2010).

In an appeal from an entry of a default judgment by a justice court, a circuit court, in dismissing the appeal, addressed a wife’s claim that, while she had been personally served with process, the summons itself was defective. The circuit court correctly found that the wife had waived her right to dispute the sufficiency of the process by failing to timely challenge the service of process. Laffitte v. Southern Fin. Sys., 30 So.3d 1236, 2009 Miss. App. LEXIS 599 (Miss. Ct. App. 2009), cert. denied, 29 So.3d 774, 2010 Miss. LEXIS 153 (Miss. 2010).

On appeal from justice court to circuit court, plaintiff could suffer voluntary nonsuit without thereby reinstating justice court’s judgment so as to render it res judicata. Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769, 1932 Miss. LEXIS 50 (Miss. 1932).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d, Appellate Review §§ 578- 583.

CJS.

5 C.J.S., Appeal and Error §§ 886-899.

§ 11-51-93. Certiorari proceedings in circuit court.

All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same be apparent, or may then try the cause anew on its merits, and may in proper cases enter judgment on the certiorari or appeal bond, and shall, when justice requires it, award restitution. The clerk of the circuit court, on the issuance of a certiorari, shall issue a summons for the party to be affected thereby; and, in case of nonresidents, he may make publication for them as in other cases.

HISTORY: Codes, Hutchinson’s 1848, ch. 50, art. 9; 1857, ch. 58, art. 28; 1871, § 1336; 1880, § 2358; 1892, § 89; 1906, § 90; Hemingway’s 1917, § 72; 1930, § 72; 1942, § 1206.

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 —

Powers of county judge to order issuance of writs of certiorari, see §9-9-23.

Costs in cases of certiorari from inferior tribunals, see §11-53-53.

Restrictions on who may sign bonds and procedural requirements for appeals to circuit courts, see MRCrP 1.07, 18.1, and 29.1 through 29.5.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

3. Issuance of certiorari in general.

4. Matters appealable by certiorari.

5. Limit of time.

6. Notice.

7. Effect of certiorari.

8. Matters for review.

9. Proceedings on certiorari.

10. —Pleading.

11. —Evidence.

12. —Judgment.

13. Dismissal of certiorari.

1. In general.

A former university employee could not bring a breach of contract action against the university following the termination of his employment where he had no written contract of employment; the employee was afforded statutory protections and procedures for the purpose of appealing employment decisions and was required to seek review by writ of certiorari. Smith v. Univ. of Miss., 797 So. 2d 956, 2001 Miss. LEXIS 129 (Miss. 2001).

Notions of due process would be impugned by requiring a state university employee to pursue a breach of contract claim against the university’s personnel action review board in an administrative tribunal ultimately answerable to the board itself and subject to the limited review of the circuit court allowed under this section. Board of Trustees of State Insts. of Higher Learning v. Brewer, 732 So. 2d 934, 1999 Miss. LEXIS 59 (Miss. 1999).

Since neither Rule 7.03 nor any other part of the Uniform Criminal Rules of Circuit Court Practice has abolished or supplanted the certiorari procedure, the writ of certiorari is still available to obtain a full review in the circuit court to one convicted of a misdemeanor in the justice court. Merritt v. State, 497 So. 2d 811, 1986 Miss. LEXIS 2729 (Miss. 1986).

Application for a writ of certiorari under §11-51-93 is addressed to the sound discretion of the circuit court. Merritt v. State, 497 So. 2d 811, 1986 Miss. LEXIS 2729 (Miss. 1986).

One against whom judgment is recovered by default in justice court without process can enjoin execution or take cause to circuit court on certiorari. Turner v. Williams, 162 Miss. 258, 139 So. 606, 1932 Miss. LEXIS 312 (Miss. 1932).

Proceeding by certiorari to remove a cause from justice court to circuit court is not commencement of suit, but more in nature of a writ of error to have reviewed record of cause determined in inferior court. Citizens' Bank v. Ratliff & Bradshaw, 142 Miss. 866, 108 So. 146, 1926 Miss. LEXIS 136 (Miss. 1926).

A writ issued by the circuit court to compel a justice to transmit a certified copy of the record and the original papers when an appeal has been perfected from a judgment of the justice is not a writ of certiorari within the section. Redus v. Gamble, 85 Miss. 165, 37 So. 1010, 1904 Miss. LEXIS 124 (Miss. 1904).

The remedy by certiorari is merely to secure correction of the judgment and when secured there is no liability on the sureties on the bond, neither is the judgment debtor liable for the costs accruing. McInnis v. Graves, 80 Miss. 632, 31 So. 902, 1902 Miss. LEXIS 269 (Miss. 1902).

2. Jurisdiction.

Statute’s bond requirement is jurisdictional; regardless of whether the bond required is a cost or supersedeas bond, the bond is jurisdictional because the statute requires it. Avery v. Univ. of Miss., — So.3d —, 2019 Miss. App. LEXIS 194 (Miss. Ct. App. May 7, 2019).

Cost bond was required in the appeal of an employee’s termination as it was jurisdictional, and the employee’s payment of court fees and costs did not satisfy the requirement. Avery v. Univ. of Miss., — So.3d —, 2019 Miss. App. LEXIS 194 (Miss. Ct. App. May 7, 2019).

Failure to post the required appeal bond is a jurisdictional issue. Board of Trustees of State Insts. of Higher Learning v. Brewer, 732 So. 2d 934, 1999 Miss. LEXIS 59 (Miss. 1999).

An appeal from a circuit court order reversing an order of the Employee Appeals Board, which granted a state service employee’s motion to collaterally estop her employer-the Mississippi Department of Corrections (MDOC)-from relitigating factual issues decided in the employee’s unemployment claim, would be dismissed for lack of jurisdiction since no appeal to the circuit court by an administrative agency is authorized by §25-9-132, and the MDOC did not comply with the statutory requisites for certiorari pursuant to §§11-51-93 and11-51-95 where the MDOC filed only a brief in support of review and failed to file a petition supported by affidavit. Bertucci v. Mississippi Dep't of Corrections, 597 So. 2d 643, 1992 Miss. LEXIS 157 (Miss. 1992).

Circuit court was without jurisdiction to order the reinstatement of a park manager who had filed no appeal bond with his petition to the circuit court for appeal and for writ of certiorari. Grand Gulf Military Monument Com. v. Cox, 492 So. 2d 287, 1986 Miss. LEXIS 2529 (Miss. 1986).

The Circuit Court erred in granting petitioner’s writ of certiorari without his having filed a bond, pursuant to the requirements of §§11-51-95,11-51-93 and11-51-53 [Repealed], since the failure of petitioner to file the appeal bond within the statutory period defeated the jurisdiction of the Circuit Court to act. Mississippi State Personnel Bd. v. Armstrong, 454 So. 2d 912, 1984 Miss. LEXIS 1842 (Miss. 1984).

If the justice’s court had no jurisdiction, the circuit court has none. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 1901 Miss. LEXIS 24 (Miss. 1901).

A justice of the peace cannot serve a summons and a judgment by default based on a summons served by him is void and on certiorari the circuit court acquires no jurisdiction. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 1901 Miss. LEXIS 24 (Miss. 1901).

Unless the amount in controversy exceed $50 in cases brought by certiorari from a justice of the peace to the circuit court, an appeal will not be allowed from the circuit court in such case to the Supreme Court. O'Leary v. Harris, 50 Miss. 13, 1874 Miss. LEXIS 16 (Miss. 1874).

3. Issuance of certiorari in general.

Since Miss. Unif. Cir. & Cty. R. 5.08 involved a supersedeas bond, it was not applicable in the appeal of an employee’s termination; the bond required in Miss. Code Ann. §11-51-93 does not appear to be a supersedeas bond, but a cost bond. Avery v. Univ. of Miss., — So.3d —, 2019 Miss. App. LEXIS 194 (Miss. Ct. App. May 7, 2019).

A motorist whose operator’s license was revoked following his conviction for driving while intoxicated was not entitled to proceed by writ of certiorari in the circuit court to review the action of the commissioner of public safety when he had previously failed to exhaust the administrative remedies provided by Code 1942, § 8105. Mississippi State Dep't of Public Safety v. Berry, 217 So. 2d 11, 1968 Miss. LEXIS 1249 (Miss. 1968); Mississippi State Dep't of Public Safety v. Brown, 217 So. 2d 13, 1968 Miss. LEXIS 1251 (Miss. 1968).

Where the supreme court affirmed a judgment of the circuit court dismissing the appeal of defendant from conviction in a mayor’s court, to be issued “unless appellant shall perfect the record of the certificate of the mayor’s court,” and the circuit court dismissed appellant’s motion thereafter to reinstate the cause in the circuit court and to issue a writ of certiorari to compel the mayor to certify the transcript to the circuit court on the ground that the writ was not applied for within the six months allowed by law, such appellant was entitled to have the cause reinstated in the circuit court and to an issuance of the writ of certiorari, since the fact remained that the appellant had never been able to get a trial of the cause in the circuit court on its merits. Fassman v. Centreville, 184 Miss. 520, 186 So. 641, 1939 Miss. LEXIS 67 (Miss. 1939).

In petition for certiorari to review order of supervisors, it is only where ground for reversal appears from the record that circuit court can grant hearing on merits. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Writ to review order of supervisors ordering an election on the question of prohibiting sale and distribution of beer and wine in the county, held improvidently issued where exhibits attached to petition recited all necessary jurisdictional facts entitling board to act. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Writ of certiorari to review order of supervisors, although improperly issued because of failure to show good cause, held not void where judge had jurisdiction to issue it. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Certiorari to remove to circuit court case decided by justice should be denied, no question of law appearing for review. Henderson v. Grantham, 148 Miss. 521, 114 So. 323, 1927 Miss. LEXIS 24 (Miss. 1927).

The writ cannot properly issue without good grounds shown by petition, but appearance in the circuit court, and entry upon trial without noticing the defects in the petition is a waiver of all objections to the writ. Moore v. Ernst, 54 Miss. 642, 1877 Miss. LEXIS 66 (Miss. 1877).

Where a certiorari has been improperly awarded it may be dismissed by the circuit court upon motion. Leech v. Irwing, 3 Miss. 887, 1838 Miss. LEXIS 73 (Miss. 1838).

4. Matters appealable by certiorari.

Due to the absence of a statutory right of appeal and the hospitals lacked a full, plain, complete, and adequate remedy at law, the chancery court had jurisdiction over the hospitals’ appeals challenging the Division of Medicaid’s recalculation of their Medicaid outpatient rates for fiscal year 2001. Miss. Div. of Medicaid v. Alliance Health Ctr., 174 So.3d 254, 2015 Miss. LEXIS 461 (Miss. 2015).

Availability of a petition for a writ of certiorari under Miss. Code Ann. §11-51-95 (Rev. 2012) was not the equivalent of a statutory right of appeal where the plain language of Miss. Code Ann. §11-51-93 (Rev. 2012) and case law made certiorari review discretionary, and thus, appellate review was not guaranteed. Miss. Div. of Medicaid v. Alliance Health Ctr., 174 So.3d 254, 2015 Miss. LEXIS 461 (Miss. 2015).

Although the circuit court did not have the authority, under §25-9-132, to hear the Department of Wildlife Conservation’s (DWC) appeal of a final decision of the Employee Appeals Board (EAB), limited judicial review via writ of certiorari was available to the DWC under §11-51-93, since the EAB is a “tribunal inferior” within the meaning of §11-51-95. Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 1990 Miss. LEXIS 789 (Miss. 1990).

Order of county board of supervisors providing for election to determine whether sales of beer and light wines should be abolished held appealable by certiorari. Mohundro v. Board of Sup'rs, 174 Miss. 512, 165 So. 124, 1936 Miss. LEXIS 194 (Miss. 1936).

Appellant may have writ of certiorari issued to trial court clerk to send up parts omitted from transcript. Aluminum Cooking Utensil Co. v. Shivers, 149 Miss. 197, 115 So. 345, 1928 Miss. LEXIS 27 (Miss. 1928).

Certiorari lies to the circuit court to review assessments of board of railroad assessors, and test the legality thereof. Illinois C. R. Co. v. Miller, 141 Miss. 223, 106 So. 636, 1926 Miss. LEXIS 436 (Miss. 1926).

Where minutes of court show that a pleading and exhibit were filed and left out of the record on appeal, certiorari will be granted to bring such papers up as a part of the record. It is incompetent to contradict minutes by evidence of the clerk and attorneys or other officers of the court. Yazoo & M. V. R. Co. v. M. Levy & Sons, 141 Miss. 196, 106 So. 524, 1925 Miss. LEXIS 230 (Miss. 1925).

Writ of certiorari will not lie to review order of railroad commission fixing telephone rates. Cumberland Tel. & Tel. Co. v. State, 135 Miss. 835, 100 So. 378, 1924 Miss. LEXIS 71 (Miss. 1924).

If justice of the peace, on appeal to the circuit court, refuses to approve the appeal bond and send up record, it may be brought up by certiorari. Barrett v. Pickett, 117 Miss. 825, 78 So. 777, 1918 Miss. LEXIS 227 (Miss. 1918).

Certiorari may be had to correct mistaken findings of fact by the railroad commission induced by an error of law apparent on the record or the finding of a fact contrary to law or the making of an order beyond its power, although this section confines the courts on certiorari to questions of law appearing on the face of the record and proceedings. Gulf & S. I. R. Co. v. Adams, 85 Miss. 772, 88 Miss. 772, 38 So. 348, 1904 Miss. LEXIS 125 (Miss. 1904).

An interlocutory order entered by a justice of the peace will not warrant the carrying of the case by certiorari to the circuit court. Morris v. Shryock & Rowland, 50 Miss. 590, 1874 Miss. LEXIS 98 (Miss. 1874).

5. Limit of time.

The limitation of time within which cases may be removed to the circuit court by certiorari applies to both civil and criminal cases. Ex parte Grubbs, 80 Miss. 288, 31 So. 741, 1902 Miss. LEXIS 243 (Miss. 1902).

6. Notice.

Where, on return of writ of garnishment, claim of exemption was allowed, and plaintiff secured writ of certiorari within proper time, issuing summons only for judgment defendant, failure to issue summons on garnishee within six-month statutory limit held not to bar proceedings as to him since petition and bond were filed and writ issued within statutory limits. Citizens' Bank v. Ratliff & Bradshaw, 142 Miss. 866, 108 So. 146, 1926 Miss. LEXIS 136 (Miss. 1926).

The defendant in a certiorari proceeding must have notice. Copeland v. Pate, 7 Miss. 275, 1842 Miss. LEXIS 36 (Miss. 1842).

7. Effect of certiorari.

Where a judgment is obtained in a justice court and real estate of the defendant levied upon, and the defendant thereafter removes the case to the circuit court by certiorari, which operates as a supersedeas, the lien of such judgment acquired by the levy is not destroyed but only stayed and may be enforced when the certiorari is dismissed. Grayson v. Harris, 102 Miss. 57, 58 So. 775, 59 So. 1, 1912 Miss. LEXIS 29 (Miss. 1912).

8. Matters for review.

Circuit court properly refused a defendant’s request for certiorari review of his trial, in absentia, for refusing to give a breath test because Miss. Code Ann. §11-51-93 provided for certiorari review only when a pure question of law was presented; defendant was citing to a document in an attempt to support his argument that the municipal court date was changed, but the document was not part of the municipal court record. Lott v. City of Bay Springs, 960 So. 2d 525, 2006 Miss. App. LEXIS 842 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 405 (Miss. 2007).

It may be doubted that the contention that the verdict in the justice court was against the weight of the evidence is one which presents a sort of pure question of law reviewable on certiorari by means of the procedure authorized in §11-51-93. Merritt v. State, 497 So. 2d 811, 1986 Miss. LEXIS 2729 (Miss. 1986).

Certiorari is statutory remedy designed for purpose of bringing into review acts of inferior tribunal upon record made by such tribunal on questions of law, but upon hearing in reviewing court evidence may be heard to make manifest the error of law committed by inferior tribunal. Caruthers v. Panola County, 205 Miss. 403, 38 So. 2d 902, 1949 Miss. LEXIS 438 (Miss. 1949).

Petitioner for writ of certiorari to review proceedings of board of supervisors of county divided into two court districts has right to show that board has never adopted order for holding of regular meetings in second district on second Monday of each month and on failure to make such showing he cannot contend orders of board of supervisors are void because they fail to show lawful authority for holding meetings at which orders were adopted. Caruthers v. Panola County, 205 Miss. 403, 38 So. 2d 902, 1949 Miss. LEXIS 438 (Miss. 1949).

Where the circuit court petitioned by way of certiorari, after a decree in chancery court validating the issuance of county funding bonds, was confined to the same record, made by the board of supervisors, which the chancery court had before it in the validation proceedings, disposition of an appeal from the chancery court would not be stayed. In re Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26, 1940 Miss. LEXIS 221 (Miss. 1940).

Statute permitting circuit court on certiorari to review only questions of law appearing on face of record and proceedings held not to authorize examination of transcript of evidence on review of Railroad Commission’s decision granting certificate of convenience and necessity. Yazoo & M. V. R. Co. v. Mississippi R. Com., 169 Miss. 131, 152 So. 649, 1934 Miss. LEXIS 18 (Miss. 1934).

Word “proceedings” within Code includes only such proceedings as must appear of record, and does not include the evidence on which the inferior tribunal acted. Yazoo & M. V. R. Co. v. Mississippi R. Com., 169 Miss. 131, 152 So. 649, 1934 Miss. LEXIS 18 (Miss. 1934).

Circuit court and Supreme Court were confined to examination of questions of law arising or appearing on face of record and proceedings in court of justice of peace. Simpson v. Phillips, 164 Miss. 256, 141 So. 897, 1932 Miss. LEXIS 208 (Miss. 1932).

Under this section [Code 1942, § 1206], the court to which a case has been removed by a writ of certiorari is confined to the examination of questions of law arising or appearing on the face of the record and proceedings. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173, 1929 Miss. LEXIS 2 (Miss. 1929); Simpson v. Phillips, 164 Miss. 256, 141 So. 897, 1932 Miss. LEXIS 208 (Miss. 1932); Federal Credit Co. v. Rogers, 166 Miss. 559, 148 So. 353, 1933 Miss. LEXIS 384 (Miss. 1933); Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938); In re Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26, 1940 Miss. LEXIS 221 (Miss. 1940); Viator v. State Tax Com., 193 Miss. 266, 5 So. 2d 487, 1942 Miss. LEXIS 78 (Miss.), cert. denied, 316 U.S. 643, 62 S. Ct. 1036, 86 L. Ed. 1728, 1942 U.S. LEXIS 732 (U.S. 1942).

Under writ of certiorari from circuit court to county court, return should not have included transcript of evidence. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 494, 121 So. 114, 1929 Miss. LEXIS 34 (Miss. 1929).

9. Proceedings on certiorari.

Judgment creditor, having issued certiorari within time after exemption allowed on return of garnishment, not estopped to prosecute the writ because garnishee had paid out money in its hands before filing petition. Citizens' Bank v. Ratliff & Bradshaw, 142 Miss. 866, 108 So. 146, 1926 Miss. LEXIS 136 (Miss. 1926).

Circuit court should not award trial by jury to determine whether garnishee had or had not made answer in justice court exempting him from judgment by default in plaintiff’s favor, although record, failing to contain answer, showed a notation by the justice that the garnishee’s answer denied all indebtedness, followed by a default judgment against him. Arky v. Cameron, 92 Miss. 632, 46 So. 54, 1908 Miss. LEXIS 198 (Miss. 1908).

It is the duty of the party who sues out a certiorari to appear in the circuit court and point out the errors if any exist; and if he fail to do so, he cannot complain in the Supreme Court of a judgment by default affirming the justice’s judgment rendered in the circuit court. O'Leary v. Bolton, 50 Miss. 172, 1874 Miss. LEXIS 41 (Miss. 1874).

10. —Pleading.

Reviewing court found no abuse of discretion in a trial court’s decision to grant a writ of certiorari to the Mississippi Department of Corrections to review an order of the Employee Appeals Board requiring that an employee be reinstated even though the petition only complained about the Employee Appeals Board’s decision in a general way. Miss. Dep't of Corr. v. Smith, 883 So. 2d 124, 2004 Miss. App. LEXIS 449 (Miss. Ct. App.), cert. denied, 882 So. 2d 772, 2004 Miss. LEXIS 1208 (Miss. 2004).

On petition for certiorari to review an order of a board of supervisors ordering an election on the question of prohibiting sale of beer and wine in the county, the averment of exhibits attached to petition control. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Refusal to allow amendment of pleadings, whereby it was sought to have registration books and pool books, and other records, brought up to ascertain percentage of qualified electors signing petition for election, held not error, since evidence and testimony considered by an inferior tribunal are no part of the record on certiorari. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

The circuit judge has the sole power to determine the sufficiency of the petition; its insufficiency cannot be assigned for error in the Supreme Court. Loomis v. Commerical Bank of Columbus, 5 Miss. 660, 1840 Miss. LEXIS 48 (Miss. 1840).

11. —Evidence.

In certiorari proceeding to review case commenced in justice court, evidence contradicting record was inadmissible. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, 1929 Miss. LEXIS 175 (Miss. 1929).

District court could not look to evidence in case transferred from county court by writ of certiorari. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 494, 121 So. 114, 1929 Miss. LEXIS 34 (Miss. 1929).

12. —Judgment.

After the election on the question of prohibiting sale and distribution of beer and wine in the county was had pursuant to order of the board of supervisors, while certiorari proceedings were pending, the court properly affirmed supervisors’ order, in absence of error appearing on face of record. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Supreme court, reversing circuit court judgment reversing county court judgment, cannot render summary judgment on appeal bond carrying case from county to circuit court. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 498, 121 So. 858, 1929 Miss. LEXIS 95 (Miss. 1929).

Judgment on certiorari reversing judgment of state tax commission held “final judgment.” Illinois C. R. Co. v. Miller, 141 Miss. 223, 106 So. 636, 1926 Miss. LEXIS 436 (Miss. 1926).

On certiorari, it was error to render judgment against alleged surety, when no bond was before the court. Addington v. Ashford, 97 So. 515 (Miss. 1923).

In replevin in justice’s court, where defendant asked writ of certiorari in the circuit court, the proper judgment to be entered was either one of affirmance or of reversal, and if reversal a proper judgment entry was required to be made under this section. Williams v. Williams, 117 Miss. 251, 78 So. 152, 1918 Miss. LEXIS 172 (Miss. 1918).

Circuit court on certiorari should reverse judgment against and discharge garnishee who has filed, before justice, an uncontested answer denying liability. Hattiesburg Trust & Banking Co. v. Hood, 97 Miss. 340, 52 So. 790, 1910 Miss. LEXIS 274 (Miss. 1910).

When on reversal it is apparent from the record and proceedings alone what final judgment the justice should have entered, the circuit court should enter that judgment. Otherwise there must be trial anew on the whole merits. Evans v. Southern R. Co., 74 Miss. 230, 21 So. 15, 1896 Miss. LEXIS 146 (Miss. 1896).

The judgment of the circuit court if the writ were properly awarded on the petition should be either an affirmance or a reversal of the justice’s judgment and not a dismissal of the writ. Burrow v. Sanders, 57 Miss. 211, 1879 Miss. LEXIS 46 (Miss. 1879).

13. Dismissal of certiorari.

Trial court erred in granting a university’s motion to dismiss an employee’s appeal because the employee encountered unusual, extenuating circumstances that thwarted her attempt to post a timely bond; the employee’s failure to post bond could be excused by extenuating circumstances because her counsel tried to meet with a judge but was advised he and other judges were recusing from the case, and after the order of recusal was entered, there was no judge available to set the bond. Avery v. Univ. of Miss., — So.3d —, 2019 Miss. App. LEXIS 194 (Miss. Ct. App. May 7, 2019).

Circuit court did not abuse its discretion by failing to grant a writ of certiorari, pursuant to Miss. Code Ann. §11-51-93, based on an affidavit submitted by petitioner regarding broad statements made by a county prosecutor as to the prosecutor’s memory about in absentia traffic tickets in general; the circuit court did not rule the affidavit was not relevant or admissible, within the meaning of Miss. R. Evid. 406, rather the circuit court found the affidavit alone was insufficient to grant certiorari. Abraham v. State, 61 So.3d 199, 2010 Miss. App. LEXIS 645 (Miss. Ct. App. 2010).

Circuit court did not abuse its discretion in denying a petition for a writ of certiorari, Miss. Code Ann. §11-51-93, after a justice court found petitioner guilty in absentia of two traffic offenses, because petitioner did not provide the required justice court record for the circuit court to review and, as such, petitioner did not show “good cause” as to why his petition should have been granted; the record did not indicate any effort by petitioner to secure the justice court record or any evidence the justice court ever received notice of petitioner’s attempt to file an appeal of its judgment, as required by Miss. Unif. Cir. & Cty. R. 5.04. Abraham v. State, 61 So.3d 199, 2010 Miss. App. LEXIS 645 (Miss. Ct. App. 2010).

The dismissal of a writ of certiorari is a bar to the granting of a new writ of the same character to the same party in the same case. Williams v. Williams, 34 Miss. 143, 1857 Miss. LEXIS 117 (Miss. 1857).

RESEARCH REFERENCES

ALR.

Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari. 5 A.L.R.2d 675.

Applicability of statute of limitations or doctrine of laches to certiorari. 40 A.L.R.2d 1381.

Validity of express statutory grant of power to state to seek, or to court to grant, restitution of fruits of consumer fraud. 59 A.L.R.3d 1222.

Admissibility of videotape film in evidence in criminal trial. 60 A.L.R.3d 333.

Am. Jur.

5A Am. Jur. Pl & Pr Forms (Rev), Certiorari, Forms 41 et seq. (judicial proceedings-for review of inferior court proceedings).

CJS.

4 C.J.S., Appeal and Error §§ 667-669.

§ 11-51-95. Certiorari to all other inferior tribunals.

Like proceedings as provided in Section 11-51-93 may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not. However, petitions for a writ of certiorari to the circuit court for review of a decision of a municipal civil service commission created under Section 21-31-1 et seq. or Section 21-31-51 et seq. shall be filed within thirty (30) days after the entry of the judgment or order of the commission.

HISTORY: Codes, 1892, § 90; 1906, § 91; Hemingway’s 1917, § 73; 1930, § 73; 1942, § 1207; Laws, 1984, ch. 521, § 5, eff from and after July 1, 1984.

Cross References —

Restrictions on who may sign bonds and procedural requirements for appeals to circuit courts, see MRCrP 1.07, 18.1, and 29.1 through 29.5.

JUDICIAL DECISIONS

1. In general.

2. Inferior tribunals.

3. Issuance of certiorari in general.

4. Matters appealable by certiorari.

5. Effect of certiorari.

6. Matters for review.

7. Proceedings on certiorari.

8. —Pleading.

9. —Parties.

10. —Judgment.

1. In general.

Mississippi Transportation Commission (MTC) was not an inferior tribunal, and its decision to terminate the memorandum of understanding with the engineering firm was administrative in nature and not akin to a judgment rendered in a judicial or quasi-judicial proceeding; the findings were from a MTC meeting and there was no hearing on the merits, and witnesses were neither sworn in nor guided through questioning, and the minutes of the meeting were recorded on an audio tape that was transcribed for submission to the circuit court such that the meeting was purely administrative and a writ of certiorari was not the appropriate method of appeal in this case. Miss. Transp. Comm'n v. Eng'g Assocs., 39 So.3d 6, 2009 Miss. App. LEXIS 254 (Miss. Ct. App. 2009), rev'd, 39 So.3d 1, 2010 Miss. LEXIS 294 (Miss. 2010).

In a disciplinary case involving a fraternity and two students, because the fraternity and the students failed to strictly comply with Miss. Code Ann. §11-51-95 by failing to file a petition of certiorari and to post a bond with security, the trial court did not have jurisdiction to hear their motion for injunctive relief against the university’s decision upholding the disorderly conduct finding against the fraternity and the students and their punishment. Jackson State Univ. v. Upsilon Epsilon Chptr. of Omega Psi Phi Fraternity, Inc., 952 So. 2d 184, 2007 Miss. LEXIS 181 (Miss. 2007).

The circuit court lacked jurisdiction to review a university’s employment decision where the plaintiff former employee failed to submit a petition supported by an affidavit and post a bond, with security, within six months of the decision of the university’s personnel action review board per the requirements of the statute. Smith v. Univ. of Miss., 797 So. 2d 956, 2001 Miss. LEXIS 129 (Miss. 2001).

The Circuit Court erred in granting petitioner’s writ of certiorari without his having filed a bond, pursuant to the requirements of §§11-51-95,11-51-93 and11-51-53 [Repealed], since the failure of petitioner to file the appeal bond within the statutory period defeated the jurisdiction of the Circuit Court to act. Mississippi State Personnel Bd. v. Armstrong, 454 So. 2d 912, 1984 Miss. LEXIS 1842 (Miss. 1984).

This section [Code 1942, § 1207] is superseded, as to appeals under the Public Utility Act of 1956, by Code 1942, § 7716-26. Mississippi Valley Gas Co. v. Jackson, 236 Miss. 81, 109 So. 2d 637, 1959 Miss. LEXIS 297 (Miss. 1959).

Evidence in the proceeding below cannot be examined on certiorari. Mississippi Valley Gas Co. v. Jackson, 236 Miss. 81, 109 So. 2d 637, 1959 Miss. LEXIS 297 (Miss. 1959).

Certiorari is an extraordinary writ and should not be employed where the legislature has provided a plain, speedy and adequate remedy by direct appeal with a reporter’s transcript of the testimony. Mississippi Valley Gas Co. v. Jackson, 236 Miss. 81, 109 So. 2d 637, 1959 Miss. LEXIS 297 (Miss. 1959).

Statute (§ 4405, Code 1906) providing for a review of all proceedings of the board of supervisors in laying out, altering, or changing any public road and assessing damages therefor by an appeal to the circuit court, does not preclude the right to have such proceedings reviewed by certiorari as provided by this section [Code 1942, § 1207]. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

2. Inferior tribunals.

Although the circuit court did not have the authority, under §25-9-132, to hear the Department of Wildlife Conservation’s (DWC) appeal of a final decision of the Employee Appeals Board (EAB), limited judicial review via writ of certiorari was available to the DWC under §11-51-93, since the EAB is a “tribunal inferior” within the meaning of §11-51-95. Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 1990 Miss. LEXIS 789 (Miss. 1990).

Review by certiorari is confined to an examination of the questions of law arising and appearing on the face of the records and proceedings before the board of supervisors. Stennis v. Board of Supervisors, 232 Miss. 212, 98 So. 2d 636, 1957 Miss. LEXIS 462 (Miss. 1957).

Circuit court has power to review by certiorari decisions of the secretary of state on the sufficiency of initiative and referendum petitions. Power v. Robertson, 130 Miss. 188, 93 So. 769, 1922 Miss. LEXIS 196 (Miss. 1922).

A case may be removed from a board of supervisors to the circuit court on a writ of certiorari. Board of Sup'rs v. Melton, 123 Miss. 615, 86 So. 369, 1920 Miss. LEXIS 62 (Miss. 1920).

The railroad commission is an inferior tribunal within the meaning of this section [Code 1942, § 1207], whose judgment may be reviewed by certiorari. Gulf & S. I. R. Co. v. Adams, 85 Miss. 772, 88 Miss. 772, 38 So. 348, 1904 Miss. LEXIS 125 (Miss. 1904).

3. Issuance of certiorari in general.

In petition for certiorari to review order of supervisors, it is only where ground for reversal appears from the record that circuit court can grant hearing on merits. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Writ to review order of supervisors, ordering an election on the question of prohibiting the sale and distribution of beer and wine in the county, held improvidently issued where exhibits attached to the petition recited all necessary jurisdictional facts entitling board to act. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Writ of certiorari to review order of supervisors, although improperly issued because of failure to show good cause, held not void where judge had jurisdiction to issue it. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Where no timely appeal or certiorari was taken to review judgment of board of supervisors that election to exclude sale of beer and wine was legal, that electors had voted to exclude, and prohibiting sale thereof, validity of judgment could not be questioned in proceeding to prohibit prosecution for selling beer and wine. Blount v. Kerley, 180 Miss. 863, 178 So. 591, 1938 Miss. LEXIS 42 (Miss. 1938).

4. Matters appealable by certiorari.

Circuit court properly refused a defendant’s request for certiorari review of his trial, in absentia, for refusing to give a breath test because Miss. Code Ann. §11-51-93 provided for certiorari review only when a pure question of law was presented; defendant was citing to a document in an attempt to support his argument that the municipal court date was changed, but the document was not part of the municipal court record. Lott v. City of Bay Springs, 960 So. 2d 525, 2006 Miss. App. LEXIS 842 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 405 (Miss. 2007).

The circuit court properly denied a motion of the Civil Service Commission to quash a writ of certiorari where the Commission’s quasi-judicial modification of a penalty imposed upon a fireman presented a question of law upon the construction to be given to §21-31-23. Banks v. Greenwood, 404 So. 2d 1038, 1981 Miss. LEXIS 2241 (Miss. 1981), but see Beasley v. City of Gulfport, 724 So. 2d 883, 1998 Miss. LEXIS 611 (Miss. 1998).

Order of board of supervisors providing for election on abolition of beer and light wine held appealable by certiorari. Mohundro v. Board of Sup'rs, 174 Miss. 512, 165 So. 124, 1936 Miss. LEXIS 194 (Miss. 1936).

Inferior tribunals’ administrative and legislative orders cannot be removed to and re-examined by circuit court on writ of certiorari. Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134, 1933 Miss. LEXIS 262 (Miss. 1933).

Writ of certiorari will not lie to circuit court from school board’s order eliminating territory from school district; such order being legislative and judicial. Anderson v. Franklin County School Board, 164 Miss. 646, 146 So. 134, 1933 Miss. LEXIS 262 (Miss. 1933).

Writ of certiorari should not have been issued to county school board of education which organized consolidated school district; board’s action being more legislative than judicial in character. Board of Supervisors v. Stephenson, 130 So. 684 (Miss. 1930), rev'd, 160 Miss. 372, 134 So. 142, 1931 Miss. LEXIS 182 (Miss. 1931).

Order of board of supervisors directing road to be laid out and condemning land, held “final judgment,” reviewable by certiorari. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

Certiorari will not lie to review order of railroad commission fixing intrastate freight rates under authority of law; determination of such rates being a legislative and not a judicial function. Illinois C. R. Co. v. Mississippi R. Com., 143 Miss. 805, 109 So. 868, 1926 Miss. LEXIS 324 (Miss. 1926).

Certiorari lies to the circuit court to review assessments of board of railroad assessors and test the legality thereof. Illinois C. R. Co. v. Miller, 141 Miss. 223, 106 So. 636, 1926 Miss. LEXIS 436 (Miss. 1926).

Writ of certiorari will not lie to review order of railroad commission fixing telephone rates. Cumberland Tel. & Tel. Co. v. State, 135 Miss. 835, 100 So. 378, 1924 Miss. LEXIS 71 (Miss. 1924).

Order of another board or tribunal cannot be reviewed by the circuit court in a case removed to it from a board of supervisors, unless such order is the basis for a judgment rendered by the board of supervisors in a judicial proceeding. Board of Sup'rs v. Melton, 123 Miss. 615, 86 So. 369, 1920 Miss. LEXIS 62 (Miss. 1920).

Mere administrative orders of an inferior tribunal cannot be removed to and be re-examined by a circuit court on a writ of certiorari, but only such as are of a judicial, or quasi-judicial, nature. Board of Sup'rs v. Melton, 123 Miss. 615, 86 So. 369, 1920 Miss. LEXIS 62 (Miss. 1920).

5. Effect of certiorari.

Due to the absence of a statutory right of appeal and the hospitals lacked a full, plain, complete, and adequate remedy at law, the chancery court had jurisdiction over the hospitals’ appeals challenging the Division of Medicaid’s recalculation of their Medicaid outpatient rates for fiscal year 2001. Miss. Div. of Medicaid v. Alliance Health Ctr., 174 So.3d 254, 2015 Miss. LEXIS 461 (Miss. 2015).

Availability of a petition for a writ of certiorari under Miss. Code Ann. §11-51-95 (Rev. 2012) was not the equivalent of a statutory right of appeal where the plain language of Miss. Code Ann. §11-51-93 (Rev. 2012) and case law made certiorari review discretionary, and thus, appellate review was not guaranteed. Miss. Div. of Medicaid v. Alliance Health Ctr., 174 So.3d 254, 2015 Miss. LEXIS 461 (Miss. 2015).

Upon the filing of the proper petition and bond, and the issuance and service of the writ of certiorari removing the proceedings wherein the board of supervisors made an order directing the laying out of a road and the condemnation of land to the circuit court for review, all proceedings therein by the board of supervisors were thereby superseded, and any attempted orders or proceedings thereafter taken were improperly made a part of the transcript of the record transmitted to the circuit court, and a motion to strike such orders and proceedings should have been sustained. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

6. Matters for review.

Where the mayor and board of aldermen had by resolution adjudged that a property owner’s proposed addition to a building did not violate the city’s zoning ordinances, the trial court, on certiorari, erred in hearing testimony upon the issue. Mayor & Board of Aldermen v. White, 230 Miss. 698, 93 So. 2d 852, 1957 Miss. LEXIS 411 (Miss. 1957).

Certiorari is statutory remedy designed for purpose of bringing into review acts of inferior tribunal upon record made by such tribunal on questions of law, but upon hearing in reviewing court evidence may be heard to make manifest the error of law committed by inferior tribunal. Caruthers v. Panola County, 205 Miss. 403, 38 So. 2d 902, 1949 Miss. LEXIS 438 (Miss. 1949).

Petitioner for writ of certiorari to review proceedings of board of supervisors of county divided into two court districts has right to show that board has never adopted order for holding of regular meetings in second district on second Monday of each month and on failure to make such showing he cannot contend orders of board of supervisors are void because they fail to show lawful authority for holding meetings at which orders were adopted. Caruthers v. Panola County, 205 Miss. 403, 38 So. 2d 902, 1949 Miss. LEXIS 438 (Miss. 1949).

Where the circuit court petitioned to act by way of certiorari, after a decree in chancery court validating the issuance of county funding bonds, was confined to the same record, made by the board of supervisors, which the chancery court had before it in the validation proceedings, disposition of an appeal from the chancery court would not be stayed. In re Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26, 1940 Miss. LEXIS 221 (Miss. 1940).

Statute held not to authorize examination of transcript of evidence on review of Railroad Commission’s decision granting certificate of convenience and necessity. Yazoo & M. V. R. Co. v. Mississippi R. Com., 169 Miss. 131, 152 So. 649, 1934 Miss. LEXIS 18 (Miss. 1934).

Under this section [Code 1942, § 1207], the court to which a case has been removed by a writ of certiorari is confined to the examination of questions of law arising or appearing on the face of the record and proceedings. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173, 1929 Miss. LEXIS 2 (Miss. 1929); Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938); In re Validation of Lincoln County Funding Bonds, 187 Miss. 392, 193 So. 26, 1940 Miss. LEXIS 221 (Miss. 1940); Viator v. State Tax Com., 193 Miss. 266, 5 So. 2d 487, 1942 Miss. LEXIS 78 (Miss.), cert. denied, 316 U.S. 643, 62 S. Ct. 1036, 86 L. Ed. 1728, 1942 U.S. LEXIS 732 (U.S. 1942).

District court could not look to evidence in case transferred from county court by writ of certiorari. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 494, 121 So. 114, 1929 Miss. LEXIS 34 (Miss. 1929).

Under writ of certiorari from circuit court to county court, return should not have included transcript of evidence. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 494, 121 So. 114, 1929 Miss. LEXIS 34 (Miss. 1929).

7. Proceedings on certiorari.

There was no error with an employee appealing the University of Mississippi Personnel Action Review Board’s (PARB) decision upholding her dismissal because to follow the statute and a letter by the assistance human resource director, the employee would need to appeal to the chancellor within seven days of the PARB decision and to the circuit court within 180 days of the PARB decision, and that was exactly what she did. Avery v. Univ. of Miss., — So.3d —, 2019 Miss. App. LEXIS 194 (Miss. Ct. App. May 7, 2019).

If a case removed to the circuit court by a writ of certiorari is there tried anew on its merits, the procedure is the same as that in cases tried de novo in ordinary appeals to the circuit court. Board of Sup'rs v. Melton, 123 Miss. 615, 86 So. 369, 1920 Miss. LEXIS 62 (Miss. 1920).

8. —Pleading.

An appeal from a circuit court order reversing an order of the Employee Appeals Board, which granted a state service employee’s motion to collaterally estop her employer-the Mississippi Department of Corrections (MDOC)-from relitigating factual issues decided in the employee’s unemployment claim, would be dismissed for lack of jurisdiction since no appeal to the circuit court by an administrative agency is authorized by §25-9-132, and the MDOC did not comply with the statutory requisites for certiorari pursuant to §§11-51-93 and11-51-95 where the MDOC filed only a brief in support of review and failed to file a petition supported by affidavit. Bertucci v. Mississippi Dep't of Corrections, 597 So. 2d 643, 1992 Miss. LEXIS 157 (Miss. 1992).

On petition for certiorari to review an order of a board of supervisors ordering an election on the question of prohibiting the sale and distribution of beer and wine in the county, the averment of exhibits attached to petition control. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Refusal to allow amendment of pleadings, whereby it was sought to have registration books and poll books, and other records, brought up to ascertain percentage of qualified electors signing petition for election, held not error. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

9. —Parties.

Signers of petitions to lay out or change road held not proper parties to certiorari for review of proceedings by board of supervisors pursuant thereto. Ferguson v. Seward, 146 Miss. 613, 111 So. 596, 1927 Miss. LEXIS 208 (Miss. 1927).

10. —Judgment.

After election had, pursuant to the order of the board of supervisors on the question of prohibiting the sale and distribution of beer and wine in the county, while certiorari proceedings were pending, court properly affirmed supervisors’ order, in absence of error appearing on face of record. Hamilton v. Long, 181 Miss. 627, 180 So. 615, 1938 Miss. LEXIS 103 (Miss. 1938).

Supreme court, reversing circuit court judgment reversing county court judgment, cannot render summary judgment on appeal bond carrying case from county to circuit court. Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 498, 121 So. 858, 1929 Miss. LEXIS 95 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari. 5 A.L.R.2d 675.

Applicability of statute of limitations or doctrine of laches to certiorari. 40 A.L.R.2d 1381.

Am. Jur.

5A Am. Jur. Pl & Pr Forms (Rev), Certiorari, Forms 41 et seq. (judicial proceedings-for review of inferior court proceedings).

§ 11-51-97. New appeal bond.

In all appeals and in proceedings of certiorari to the circuit court, the said court, on motion of the appellee or obligee, may inquire into the sufficiency of the amount of the bond, and of the security thereon, and may at any time require a new bond, or additional security, on pain of dismissal; and if any bond be defective, the principal therein may give a new one, which shall have the same effect as if given originally.

HISTORY: Codes, Hutchinson’s 1848, ch. 56, art. 16 (7); 1857, ch. 42, art. 20; 1871, § 1596; 1880, § 2658; 1892, § 91; 1906, § 92; Hemingway’s 1917, § 74; 1930, § 74; 1942, § 1208.

Cross References —

Authority of court or judge to require new security, see §11-1-23.

Effect of insufficiency of appeal bond in Supreme Court, see §11-3-33.

JUDICIAL DECISIONS

1. In general.

2. Amendment.

3. New or additional bond.

1. In general.

Since the sheriff, who had been convicted of contempt of court, had made no effort whatever to give an appeal bond, this section [Code 1942, § 1208] did not apply. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Where a sheriff, who had been adjudged guilty of contempt of county court, made no effort to file an appeal bond, and, after the time for appeal had expired, the county judge directed the issuance of a capias pro fine to the coroner, who took the sheriff into custody, but the sheriff had presented to the judge of the circuit court of the county a petition for habeas corpus, which was made returnable before the county judge, the judge in the habeas corpus proceedings was without the authority to then permit the sheriff to execute bonds and thereby effectually appeal the contempt judgments to the circuit court of the county. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Where appeal-bond for less than statutory amount was approved, appeal from justice court to county court was not void but only defective, and county court could enter nonsuit on appellant’s motion. Keys v. Borden, 178 Miss. 173, 171 So. 887, 1937 Miss. LEXIS 174 (Miss. 1937).

Bank, which was depository of school funds, was not entitled to appeal without bond in action for mandamus to require payment of warrant on the funds. Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810, 1918 Miss. LEXIS 104 (Miss. 1918).

The justice of the peace, on appeal to the circuit court, refusing to approve the appeal bond and send up the record, it may be brought up by certiorari. Barrett v. Pickett, 117 Miss. 825, 78 So. 777, 1918 Miss. LEXIS 227 (Miss. 1918).

2. Amendment.

Circuit court held authorized to permit amendment of $100 appeal bond from unlawful entry and detainer court to meet statutory requirement for appeal bond of not less than $200, or to permit execution of new bond. Williams v. Johnson, 175 Miss. 419, 167 So. 639, 1936 Miss. LEXIS 67 (Miss. 1936).

Where an appeal bond is defective in any respect, the circuit court should permit it to be amended. Gaddis v. Palmer, 60 Miss. 758, 1883 Miss. LEXIS 9 (Miss. 1883); Leavenworth v. Crittenden, 62 Miss. 573, 1885 Miss. LEXIS 111 (Miss. 1885); James v. Woods, 65 Miss. 528, 5 So. 106, 1888 Miss. LEXIS 38 (Miss. 1888).

Where a county has two judicial districts, a bond reciting an appeal to the circuit court of the wrong district may be amended by leave of the court of the proper district. Nations v. Lovejoy, 80 Miss. 401, 31 So. 811, 1902 Miss. LEXIS 259 (Miss. 1902).

A bond in a penalty less than the minimum sum required by law is not void but may be amended. Denton v. Denton, 77 Miss. 375, 27 So. 383, 1899 Miss. LEXIS 71 (Miss. 1899).

3. New or additional bond.

An appeal bond, defective because the penalty thereof was too small, was not a nullity and the appellant had the right to file a new bond. Thorsen v. Illinois C. R. Co., 112 Miss. 139, 72 So. 879, 1916 Miss. LEXIS 76 (Miss. 1916).

An order requiring an additional appeal bond to be given within a limited time and providing that in default thereof the appeal be dismissed, being interlocutory, failure to give the bond within the time does not operate as a dismissal and the court retains jurisdiction until final judgment dismissing the appeal. Nichols v. Kendrick, 76 Miss. 334, 24 So. 534, 1898 Miss. LEXIS 90 (Miss. 1898).

RESEARCH REFERENCES

ALR.

Applicability of statute of limitations or doctrine of laches to certiorari. 40 A.L.R.2d 1381.

Am. Jur.

2 Am. Jur. Pl & Pr Forms (Rev), Appeal and Error, Form 491.1 (notice – motion for order that security is insufficient).

CJS.

4 C.J.S., Appeal and Error §§ 445, 447, 448.

§ 11-51-99. How executors, administrators, guardians, and conservators appeal.

The chancery court, in its discretion, may allow executors, administrators, guardians and conservators to appeal money or property judgments or orders against their wards or estates with supersedeas under any existing bond or one set for that purpose; but they shall pay the costs of the lower court including the Supreme Court filing fee.

HISTORY: Codes, 1880, § 2334; 1892, § 92; 1906, § 93; Hemingway’s 1917, § 75; 1930, § 75; 1942, § 1209; Laws, 1978, ch. 335, § 30; Laws, 2000, ch. 577, § 7, eff from and after July 1, 2000.

Amendment Notes —

The 2000 amendment rewrote the section.

Cross References —

Bond required of executor or administrator with the will annexed, see §91-7-41.

Bond required of administrator, see §91-7-67.

Bond required of guardian, see §93-13-17.

JUDICIAL DECISIONS

1. In general.

An appellant could not claim §11-51-99 as a basis for not having to file a supersedeas bond on an appeal of a case concerning the distribution of an estate of which she had been the administratrix where she was no longer the administratrix of the estate. Perkins v. Thompson, 539 So. 2d 1029 (Miss. 1989).

Section 11-51-99 mandatorily requires supersedeas without bond for conservators appealing orders affecting the conservator in his or her fiduciary capacity, however, conservator is required to pay court costs and transcription costs. In re Conservatorship of Stallings, 523 So. 2d 49, 1988 Miss. LEXIS 69 (Miss. 1988).

In view of statute (§93-13-259) stating that conservators have same powers, rights and duties as guardians, statute (§11-51-99) governing appeals by guardians also governs appeals by conservators; accordingly, conservator appealing decree discharging conservator is entitled to do so with supersedeas without bond in accordance with §11-51-99. Conservatorship of Harris v. King, 480 So. 2d 1131, 1985 Miss. LEXIS 2371 (Miss. 1985).

A decree that a devise had lapsed and that the property which was the subject of that devise became intestate property was an adjudication as to the rights of the litigants among themselves and was not an adjudication against the administratrix cum testamento annexo in her capacity as a fiduciary or representative, and she was not, therefore, entitled to appeal under this section [Code 1942, § 1209]. House v. Roberts, 254 So. 2d 904, 1971 Miss. LEXIS 1532 (Miss. 1971).

Where an administrator, appealing from a decree dismissing his bill of complaint, failed to file a written petition for the appeal with the clerk below or to file the record in the supreme court within the six months during which an appeal could be taken, appeal was barred by limitation before the record was filed, and should be dismissed upon motion. Oswalt v. Austin, 192 Miss. 653, 6 So. 2d 924, 1942 Miss. LEXIS 53 (Miss. 1942).

While a petition in writing for an appeal to the supreme court filed with the clerk of the trial court is one method of obtaining an appeal, such a petition is not necessary to the validity thereof; and where no appeal bond is given or required, the appeal is considered to have been taken when, but not until, the transcript of the record in the case is filed with the clerk of the supreme court. Oswalt v. Austin, 192 Miss. 653, 6 So. 2d 924, 1942 Miss. LEXIS 53 (Miss. 1942).

The section [Code 1942, § 1209] does not relieve an executor against whom a decree has been rendered to be satisfied de bonis propriis from giving bond. Hudson v. Gray, 58 Miss. 589, 1881 Miss. LEXIS 3 (Miss. 1881).

But the appeal may be without bond if by the executor in his fiduciary character only. Hudson v. Gray, 58 Miss. 589, 1881 Miss. LEXIS 3 (Miss. 1881).

RESEARCH REFERENCES

ALR.

Right of trustee or executor to appeal from decree or order of removal. 37 A.L.R.2d 751.

Right to allowance out of estate for attorneys’ fees incurred on appeal in attempt to establish or defeat will. 40 A.L.R.2d 1407.

Necessity that person acting in fiduciary or representative capacity give bond to maintain appellate review proceedings. 41 A.L.R.2d 1324.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

CJS.

4 C.J.S., Appeal and Error § 443.

Law Reviews.

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

§ 11-51-101. State, county, and municipality, and officials representing them, may appeal without bond; prepayment of costs in lower court; costs of record of trial court.

  1. The state and any county or municipality of the state, and the officials representing the state, county or municipality, in any suit or action, and any state, county or municipal officer who is a party to any suit or action in his official character, in which suit or action the state, county or municipality is beneficially interested, and the several incorporated charitable or educational institutions established and maintained by the state, and all corporate instrumentalities wholly owned by the United States government, shall be entitled to appeal from a judgment, decree, decision or order of any court or judge from which an appeal may be taken without prepayment of costs in the lower court; however, the cost of the preparation of the record of the proceedings in the trial court shall be prepaid. In any such case, if a supersedeas is allowed and desired, a bond for supersedeas shall not be required.
  2. Any person who is a party to a suit or action in his individual capacity, which suit arises from allegedly tortious actions and deeds committed by him during the time he was a member, trustee, director, superintendent, official or employee, as the case may be, of the Department of Corrections, the State Penitentiary or the state psychiatric hospitals or institutions, and which allegedly tortious acts and deeds were committed by the person in the performance of his duties or employment, shall be entitled to appeal from a judgment, decree, decision or order of any court or judge from which an appeal may be taken without prepayment of costs in the lower court, including the costs of the preparation of the record of the proceedings in the trial court. In those cases, if a supersedeas is allowed and desired, a bond for supersedeas shall not be required. The provisions of this section shall not apply to any such judgment, decree, decision or order in favor of the State of Mississippi.

HISTORY: Codes, 1880, § 2333; 1892, § 93; 1906, § 94; Hemingway’s 1917, § 76; 1930, § 76; 1942, § 1210; Laws, 1938, ch. 356; Laws, 1975, ch. 448; Laws, 1990, ch. 454, § 1; Laws, 2008, ch. 442, § 7, eff from and after July 1, 2008.

Amendment Notes —

The 2008 amendment in (1), substituted references to “municipality” and “municipal” for references to “city, town or village”; in (2), substituted “Department of Corrections” for “Mississippi Penitentiary Board” and “state psychiatric hospitals or institutions” for “state insane hospitals”; and made minor stylistic changes throughout.

Cross References —

Authority of state, county, or municipality to appeal from tax assessment without bond, see §11-51-77.

Authority of state tax commission to appeal without bond, see §27-3-33.

State of Mississippi’s exemption from giving security to obtain a stay of judgment, see Miss. R. Civ. P. 62.

JUDICIAL DECISIONS

1. In general.

2. Particular applications.

1. In general.

Election commissioners are officials within the meaning of §11-51-101. Fisher v. Crowe, 289 So. 2d 921, 1974 Miss. LEXIS 1694 (Miss. 1974).

This section [Code 1942, § 1210] was intended to apply to all persons representing State in judicial proceedings under delegated authority, and words “beneficially interested” are not limited to financial interest in particular suit, but include interest therein of State in governmental capacity. Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446, 1935 Miss. LEXIS 28 (Miss. 1935).

Code 1892 § 79 (Code 1942, § 1195) allows appeals from board of supervisors to circuit court. Section 85 [Code 1942, § 1201] limits appeals from circuit court to cases where amount in controversy exceeds $50 if originating in justices’ court. There is no such limitation on board of supervisors, and the board may appeal without bond. Marshall County v. Rivers, 88 Miss. 45, 40 So. 1007, 1906 Miss. LEXIS 153 (Miss. 1906).

2. Particular applications.

Trial court erred in enforcing a supersedeas bond against a city as a surety because the bond did not include two valid sureties or a surety company, and thus, the circuit clerk did not have the authority to receive it or issue supersedeas upon it; the city was not required to post a bond to stay the judgment and pursue its appeal because it was exempted by statute and procedural rule from the requirement to file a supersedeas bond. City of Belzoni v. Johnson, 121 So.3d 216, 2013 Miss. LEXIS 472 (Miss. 2013).

Mississippi Regional Housing Authority was entitled to a stay pending appeal and was not required to post a supersedeas bond under Fed. R. Civ. P. 62(f), Miss. R. Civ. P. 62(f), and Miss. Code Ann. §11-51-101 because: (1) Miss. Code Ann.43-33-11, which provided that an authority constituted a public body corporate and politic, that exercised public and essential governmental functions, and had all the powers necessary or convenient to carry out and effectuate its purposes, supported the conclusion that the housing authority was entitled to the exemptions; (2) the housing authority and its functions were “integral parts” of Mississippi government; and (3) the Mississippi Supreme Court recognized that a housing authority was a “governmental entity” in another context. Urban Developers, Inc. v. City of Jackson, 227 F.R.D. 464, 2005 U.S. Dist. LEXIS 5423 (S.D. Miss. 2005).

Municipal separate school district is agency exempted by §11-51-101 from giving appeal bond; accordingly, cost of appeal bond posted by school board in appeal by board from decision of Chancery Court reversing board decision made under §37-9-111 may not be assessed as court costs. Board of Trustees v. Gates, 467 So. 2d 216, 1985 Miss. LEXIS 1987 (Miss. 1985).

County board of education, and its president, as agents of the estate, may appeal without giving bond. County Board of Education v. Smith, 239 Miss. 53, 121 So. 2d 139, 1960 Miss. LEXIS 266 (Miss. 1960).

Since the sheriff, in his contemptuous acts, was not representing the county and it had no beneficial interest in his conviction or acquittal, the sheriff was not exempt by this section [Code 1942, § 1210] from executing a bond upon appealing from contempt judgments. Watson v. Holifield, 229 Miss. 27, 89 So. 2d 924, 1956 Miss. LEXIS 582 (Miss. 1956).

Action taken first by mayor in effecting appeal from judgment in mandamus proceedings requiring him to execute and deliver warrant on maintenance fund of municipal separate school district for payment of installment due under building contract for construction of a gymnasium and vocational building, and thereafter by a taxpayer entering into bond for costs and prosecuting the appeal from failure of the mayor to do so, constituted an appeal with supersedeas, especially where no appeal supersedeas was denied by the trial court. Williams v. State, 209 Miss. 251, 46 So. 2d 591, 1950 Miss. LEXIS 385 (Miss. 1950).

A drainage district is a separate, distinct legal entity, with power to sue and be sued as such in its corporate name, and is not excepted from the necessity of giving bond for appeal to the supreme court. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

Where an effort had been made in good faith by a drainage district to perfect an appeal within six months, and there had been no intentional delay in having the records filed with the clerk of the Supreme Court, and only a short delay in filing it, with no damage or prejudice to the other party, the Supreme Court in its discretion overruled a motion to dismiss the appeal on the ground of inexcusable delay in filing the transcript in the Supreme Court, and granted the drainage district permission to file the proper appeal bond within ten days. Sabougla Drainage Dist. v. People's Bank & Trust Co., 191 Miss. 331, 1 So. 2d 219, 2 So. 2d 573, 1941 Miss. LEXIS 109 (Miss. 1941).

In suit by superintendent of banks, in charge of liquidation of bank, for collection of debt allegedly due the bank, superintendent held entitled to appeal from adverse decree without bond. Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446, 1935 Miss. LEXIS 28 (Miss. 1935).

Bank, which was depository of school funds, was not entitled to appeal without bond in action for mandamus to require payment of warrant on the funds. Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768, 79 So. 810, 1918 Miss. LEXIS 104 (Miss. 1918).

A county may appeal from a decree overruling its demurrer to a bill in equity under Code 1892 § 33 (Code 1906, § 34), without giving bond. Jones v. Rogers, 85 Miss. 578, 38 So. 310 (Miss. 1904).

A petition for a mandamus in behalf of the state to compel the board of supervisors of a county to hold a special election to locate the county site having been denied, the state can appeal without bond. State ex rel. Attorney Gen. v. Board of Sup'rs, 64 Miss. 358, 1 So. 501, 1886 Miss. LEXIS 73 (Miss. 1886).

RESEARCH REFERENCES

ALR.

Standing of zoning board of appeals or similar body to appeal reversal of its decision. 13 A.L.R.4th 1130.

Hospital’s liability for mentally deranged patient’s self-inflicted injuries. 36 A.L.R.4th 117.

Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit. 43 A.L.R.4th 19.

Payment of attorneys’ services in defending action brought against officials individually as within power or obligation of public body. 47 A.L.R.5th 553.

CJS.

4 C.J.S., Appeal and Error §§ 444.

§ 11-51-103. Written demand for appeal in certain cases.

In all cases where an appeal is desired without bond, from a judgment of a justice of the peace, and in cases of unlawful entry and detainer, by parties who are not required to give bond therefor, a written demand for the appeal shall be filed, in lieu of the bond required of others, within the time allowed for appeal in such cases.

HISTORY: Codes, 1892, § 94; 1906, § 95; Hemingway’s 1917, § 77; 1930, § 77; 1942, § 1211.

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 —

Unlawful entry and detainer actions generally, see §§11-25-1 et seq.

Appeal from unlawful entry and detainer court, see §11-51-83.

Criminal appeal without bond, see §99-35-7.

JUDICIAL DECISIONS

1. In general.

Neither this section [Code 1942, § 1211] (§ 95, Code 1906) nor § 83, Code 1906 (Code 1942, § 1198) has any application to an appeal provided for by § 80 (Code 1942, § 1195). Polk v. Hattiesburg, 110 Miss. 80, 69 So. 1005, 1915 Miss. LEXIS 19 (Miss. 1915).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review, §§ 292, 294, 340- 342.

CJS.

4 C.J.S., Appeal and Error §§ 432-456.

§§ 11-51-105 through 11-51-109. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-51-105. [Codes, Hemingway’s 1921 Supp. § 211a; 1930, § 78; 1942, § 1212; Laws 1920, ch. 220; Am Laws, 1978, ch. 335, § 31]

§11-51-107. [Codes, Hemingway’s 1921 Supp. § 211b; 1930, § 79; 1942, § 1213; Laws, 1920, ch. 220; Am Laws, 1978, ch. 335, § 32]

§11-51-109. [Codes, Hemingway’s 1921 Supp. § 211c; 1930, § 80; 1942, § 1214; Laws, 1920, ch. 220; Am Laws, 1978, ch. 335, § 33]

Editor’s Notes —

Former §11-51-105 related to taxpayer liable for costs only – no petition for appeal required.

Former §11-51-107 related to taxpayer liable for costs only – no petition for appeal by taxpayers.

Former §11-51-109 related to notice to court reporter and other officers in appeal by taxpayers.

§ 11-51-111. Taking of appeal from courts of separate judicial districts in Harrison County.

In Harrison County, a county having two judicial districts, all appeals, writs of error or other like remedies may be taken and prosecuted from the circuit, chancery and county courts of either of said districts to the Supreme Court, in the same manner and to the same extent and on the same terms as appeals, writs of error and other like remedies are authorized to be taken from the circuit, chancery and county courts holden in the different counties of the state.

HISTORY: Codes, 1942, § 2910-11; Laws, 1962, ch. 257, § 11, eff from and after passage (approved June 1, 1962).

§ 11-51-113. Repealed.

Repealed by Laws of 1978, ch. 335, § 41, eff from and after July 1, 1978.

[En Laws 1973, ch. 345, § 1]

Editor’s Notes —

Former §11-51-113 related to cash deposits in lieu of posting a penal bond.

Chapter 53. Costs

§§ 11-53-1 and 11-53-3. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-53-1. [Codes, Hutchinson’s 1848, ch. 58, art. 1 (71); 1857, ch. 61, art. 54; 1871, § 571; 1880, § 2359; 1892, § 861; 1906, § 939; Hemingway’s 1917, § 648; 1930, § 655; 1942, § 1566]

§11-53-3. [Codes, Hutchinson’s 1848, ch. 58, art. 5 (6); 1857, ch. 61, art. 55; 1871, § 572; 1880, § 2360; 1892, § 862; 1906, § 940; Hemingway’s 1917, § 649; 1930, § 656; 1942, § 1567]

Editor’s Notes —

Former §11-53-1 related to security for costs before suit commenced.

Former §11-53-3 related to security for costs after suit commenced.

§ 11-53-5. How security given.

Security for costs may be given by recognizance entered into in open court, or by written undertaking indorsed on or filed with the papers in the cause, or by a deposit with the clerk of the court of the amount in cash or a certified check on any solvent bank in this state. The judgment, when rendered against the plaintiff or complainant, shall be rendered against the surety as well as against the plaintiff or complainant; and execution may be issued as in other cases for all costs for which the plaintiff or complainant may be liable in the cause. Additional security may be required by the court or the justice of the peace, if it appear that the security already taken is insufficient.

HISTORY: Codes, 1857, ch. 61, art. 56; 1871, § 573; 1880, § 2361; 1892, § 863; 1906, § 941; Hemingway’s 1917, § 650; 1930, § 657; 1942, § 1568.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

Cross References —

Appeal bonds where no supersedeas is granted, see §11-51-29.

Liability of clerk or justice of the peace on his official bond for money deposited for costs, see §11-53-11.

Provision for additional cost to create court education and training fund, see §§37-26-1 et seq.

Appeal bonds in criminal cases, see §99-35-105.

Deposit in lieu of bond in criminal cases, see §99-35-107.

Requiring additional costs associated with the commencement of an action, see Miss. R. Civ. P. 3.

JUDICIAL DECISIONS

1. In general.

Court, where parties during term tender deposit of money for costs, should set aside order of dismissal because of failure to give security. Meeks v. Meeks, 156 Miss. 638, 126 So. 189, 1930 Miss. LEXIS 185 (Miss. 1930).

On reversal of decree for complainant, his bond, given under this section [Code 1942, § 1568], is liable for costs below and on appeal, and decree is against principal and surety. Victory Sparkler & Specialty Co. v. Price, 146 Miss. 192, 111 So. 437, 1927 Miss. LEXIS 185 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 82, 83.

Complaint, petition, or declaration – On undertaking for costs, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Form 121.

Filing of bond for costs, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 21-27.

CJS.

20 C.J.S., Costs §§ 77 et seq., 80 et seq.

§ 11-53-7. Security for costs before justice of the peace.

The foregoing provisions as to securing or paying costs before suit brought, and requiring security for costs after suit commenced, and as to rendering judgment against the plaintiff and surety, shall apply to justices of the peace, and the courts held by them as such, or in proceedings in unlawful entry and detainer, or in any other proceeding; but in those courts the security, when required after the commencement of a suit, shall be given within ten days after the order of the court made for that purpose.

HISTORY: Codes, 1880, § 2362; 1892, § 864; 1906, § 942; Hemingway’s 1917, § 651; 1930, § 658; 1942, § 1569.

Editor’s Notes —

Pursuant to Miss. Const., Art. 6, § 171, all references in the Mississippi Code to justice of the peace shall mean justice court judge.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 74 et seq.

7A Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 31 et seq. (filing of bond for costs).

7A Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 41 et seq. (dismissal for failure to give security).

Proceedings to require plaintiff to give security, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 1-14.

Filing of bond for costs, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 21-27.

Dismissal for failure to give security, 7 Am. Jur. Pl & Pr Forms (Rev ed), Costs, Forms 31-38.

CJS.

20 C.J.S., Costs §§ 61, 62 et seq., 68 et seq., 80 et seq., 189-192 et seq.

§ 11-53-9. Costs paid from deposit.

In case of a deposit of money or certified check for costs, if the costs be adjudged against the party making the deposit, the clerk or justice shall pay the costs out of the deposit, and the residue to the party entitled thereto. If the party making the deposit be not liable for costs, the whole of the deposit shall be returned to him.

HISTORY: Codes, 1880, § 2364; 1892, § 866; 1906, § 943; Hemingway’s 1917, § 652; 1930, § 659; 1942, § 1570.

Cross References —

Provision that clerk shall pay the costs on appeal out of money deposited for that purpose, see §11-51-69.

Unused cost deposits being promptly returned to the parties on a case-by-case basis, see Miss. Rule Civil Proc. 3.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 74 et seq.

CJS.

20 C.J.S., Costs § 78.

§ 11-53-11. Official bond covers deposit.

The clerk or justice of the peace shall be liable on his official bond to all persons having any claim to or interest in any money so deposited for costs; and for failure to pay over the same, as required, to the person entitled to it, shall, besides any other penalty provided, be liable to be dealt with for contempt by the court in which the deposit was made. A deposit in the hands of a clerk or justice at the expiration of his term of office shall be delivered to his successor.

HISTORY: Codes, 1880, § 2365; 1892, § 867; 1906, § 944; Hemingway’s 1917, § 653; 1930, § 660; 1942, § 1571.

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.

JUDICIAL DECISIONS

1. In general.

Allegations held to state a cause of action on clerk’s bond. United States Fidelity & Guaranty Co. v. Young, 128 Miss. 296, 91 So. 3, 1922 Miss. LEXIS 116 (Miss. 1922).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d (Rev), Clerks of Court §§ 56, 57, 61-65.

§ 11-53-13. Security for costs shall not be required in certain suits.

Neither the state, nor any county, city, town, or village, nor any state board, nor any state, county, city, town, or village officer, suing in his official character, shall be required to pay costs before commencing a suit, nor to give security for costs before or after the commencement of a suit.

HISTORY: Codes, 1880, § 2366; 1892, § 868; 1906, § 945; Hemingway’s 1917, § 654; 1930, § 661; 1942, § 1572.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1572] merely relieves against the necessity of securing costs before bringing suit, but not against liability for costs of an unsuccessful suit. State Board of Registration v. Rogers, 239 Miss. 35, 121 So. 2d 720, 1960 Miss. LEXIS 498 (Miss. 1960).

OPINIONS OF THE ATTORNEY GENERAL

The fees of the constable must be paid if the process is served, therefore if the costs are not collected from the defendant, the county must pay them to the constable. Franklin, Nov. 1991, A.G. Op. #91-0803.

Under Section 11-53-13, a county-owned hospital filing suit in justice court is not required to pre-pay court costs. If it is unsuccessful in its case, it shall become immediately liable to pay the costs of the case. Thornton, December 6, 1995, A.G. Op. #95-0775.

Section 11-53-13 does not relieve the state of the duty of payment of court costs assessed against it by the court at the conclusion of the case. McCarty, December 7, 1995, A.G. Op. #95-0798.

Where a constable serves process in an action to collect a delinquent bill that is filed by the county, the constable is entitled to have his fee paid by the county if the defendant is unable to pay a judgment rendered against him. Massey, June 5, 1998, A.G. Op. #98-0322

A constable is not entitled to receive a fee for service of process unless that process is actually served; if the constable returns the process “unable to serve” or “not found,” then he has not actually served the process and he is not entitled to a fee. Fortier, October 9, 1998, A.G. Op. #98-0599

This section does not require the District Attorney, acting in his or her official capacity, to pre-pay fees in the Chancery or Circuit Courts; however, the Chancery Clerk may be entitled to fees upon adjudication and assessment of costs by the court. Jones, July 30, 1999, A.G. Op. #99-0369.

An entity of government is not required to prepay court costs prior to commencing a civil action. Erby, Apr. 29, 2005, A.G. Op. 05-0118.

RESEARCH REFERENCES

ALR.

Liability of state, or its agency or board, for costs in civil action to which it is a party. 72 A.L.R.2d 1379.

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 32- 37.

CJS.

20 C.J.S., Costs §§ 63, 65.

§ 11-53-15. Usee liable for costs—state as nominal plaintiff.

In suits in the name of the state or any person for the use of another, the usee may be required to secure or pay the costs, and shall be liable therefor; and in no case shall the state, as a nominal plaintiff, be liable for costs.

HISTORY: Codes, Hutchinson’s 1848, ch. 58, art. 1 (23); 1857, ch. 61, art. 57; 1880, § 2367; 1892, § 869; 1906, § 946; Hemingway’s 1917, § 655; 1930, § 662; 1942, § 1573.

Cross References —

Liability for costs where information in quo warranto case is upon relation of private individual, see §11-39-23.

Handling of costs in quo warranto case by judge before order for trial in vacation or afterward is made, see §11-39-61.

RESEARCH REFERENCES

ALR.

Liability of state, or its agency or board, for costs in civil action to which it is a party. 72 A.L.R.2d 1379.

Am. Jur.

20 Am. Jur. 2d (Rev), Costs § 21, 27.

CJS.

20 C.J.S., Costs §§ 4, 5.

§ 11-53-17. Poor persons may sue without security for costs.

A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit:

“I,_______________ , do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or which I have begun, as the case may be) and that, to the best of my belief, I am entitled to the redress which I seek by such suit.”

HISTORY: Codes, 1880, §§ 2368, 2369; 1892, § 870; 1906, § 947; Hemingway’s 1917, § 656; 1930, § 663; 1942, § 1574; Laws, 1936, ch. 251; Laws, 1991, ch. 573, § 87, eff from and after July 1, 1991.

Cross References —

Appeals in criminal cases by one unable to give an appeal-bond or to deposit money to cover costs, see §§99-35-7,99-35-105.

Provision that cost deposit, which ordinarily must accompany complaint, may be waived for paupers, see Miss. R. Civ. P. 3.

JUDICIAL DECISIONS

1. In general.

In a premises liability case, plaintiff was not entitled to proceed in forma pauperis on appeal, as any right to proceed in forma pauperis in a civil case existed only at the trial level. Davis v. Office Max, 131 So.3d 588, 2013 Miss. App. LEXIS 428 (Miss. Ct. App. 2013), cert. denied, 132 So.3d 579, 2014 Miss. LEXIS 97 (Miss. 2014).

In proceedings on remand for a new trial, a litigant may seek and obtain in forma pauperis status because the new trial proceeds de novo, or as if the case is being tried for the first time. Blake v. Estate of Clein, 37 So.3d 622, 2010 Miss. LEXIS 322 (Miss. 2010).

Miss. Code Ann. §11-53-17 authorized in forma pauperis proceedings in civil cases at the trial level only; therefore, the inmate should not have been allowed to appeal his claims under the Mississippi Tort Claims Act in forma pauperis. Bessent v. Clark, 974 So. 2d 928, 2007 Miss. App. LEXIS 633 (Miss. Ct. App. 2007).

The right to proceed in forma pauperis applies only at the trial court level; appellate court cautioned trial courts against allowing appeals in forma pauperis unless required by law. Slaydon v. Hansford, 830 So. 2d 686, 2002 Miss. App. LEXIS 477 (Miss. Ct. App. 2002), overruled, Blake v. Estate of Clein, 37 So.3d 622, 2010 Miss. LEXIS 322 (Miss. 2010).

Mississippi’s post-deprivation remedies for civil in forma pauperis litigants (§11-53-17) satisfied the Due Process Clause, notwithstanding the rule requiring civil litigants to prepay appellate costs, since the state provided a procedure, not conditioned on the payment of any fee, through which an indigent litigant would be able to seek redress at the trial court level. Nickens v. Melton, 38 F.3d 183, 1994 U.S. App. LEXIS 30971 (5th Cir. Miss. 1994), cert. denied, 514 U.S. 1025, 115 S. Ct. 1376, 131 L. Ed. 2d 230, 1995 U.S. LEXIS 2136 (U.S. 1995).

The Mississippi rule requiring civil litigants to prepay appellate costs did not violate the Equal Protection Clause with respect to litigants suing in forma pauperis (IFP) since IFP litigants are not a suspect class, and the rule requiring prepayment of costs for a civil appeal was rationally related to the state’s legitimate interest in offsetting expenses associated with operating its appellate court system. Nickens v. Melton, 38 F.3d 183, 1994 U.S. App. LEXIS 30971 (5th Cir. Miss. 1994), cert. denied, 514 U.S. 1025, 115 S. Ct. 1376, 131 L. Ed. 2d 230, 1995 U.S. LEXIS 2136 (U.S. 1995).

Where an action is brought pursuant to §11-53-17 and the court conducts a hearing on the issue of poverty to determine whether the action should be dismissed pursuant to §11-53-19, it is entirely reasonable and in the interest of judicial economy that the pleading also be examined and the affiant questioned to determine whether the action is frivolous and, therefore, subject to dismissal pursuant to Rule 11, Miss. R. Civ. P. Blanks v. State, 594 So. 2d 25, 1992 Miss. LEXIS 44 (Miss. 1992).

While §11-53-17 provides that persons who are truly indigent may proceed in civil actions as paupers, the statute authorizes in forma pauperis proceedings in civil cases at the trial level only. Nelson v. Bank of Mississippi, 498 So. 2d 365, 1986 Miss. LEXIS 2754 (Miss. 1986).

Statute permitting suit in forma pauperis applies only to a court of original jurisdiction and not to courts of appeal so as to permit setting down of a mandate on an affidavit in forma pauperis. Life & Casualty Ins. Co. v. Walters, 190 Miss. 761, 198 So. 746, 200 So. 732, 1940 Miss. LEXIS 183 (Miss. 1940).

Delay for almost a year after granting of rule for security for costs did not justify court in striking affidavit of poverty and dismissing cause, in absence of showing that defendant was prejudiced by delay. Bond v. Hattiesburg American, 178 Miss. 122, 172 So. 509, 1937 Miss. LEXIS 193 (Miss. 1937).

All persons satisfying court of inability to secure costs are entitled to maintain suit, though not able to give bond or deposit money. Meeks v. Meeks, 156 Miss. 638, 126 So. 189, 1930 Miss. LEXIS 185 (Miss. 1930).

Evidence held insufficient to warrant holding plaintiff pauper’s affidavit was not true. Carroll v. Louisville & N. R. Co., 154 Miss. 188, 122 So. 469, 1929 Miss. LEXIS 129 (Miss. 1929).

A litigant who has sued in forma pauperis in a justice’s court cannot appeal from an adverse judgment without bond. Woods v. Davidson, 57 Miss. 206, 1879 Miss. LEXIS 44 (Miss. 1879).

OPINIONS OF THE ATTORNEY GENERAL

This statute allows a citizen to commence “any civil action,” which includes an action to enforce the Public Records Act in chancery court. Peacock, March 31, 1999, A.G. Op. #99-0109.

In a civil action where the plaintiff was allowed to proceed as an indigent, in the event the court declines to hold a hearing to inquire into the affidavit of poverty or if the court holds a hearing and does not dismiss the complaint, the sheriff is required to deliver the summons and complaint in accordance with Rule 4 of the Mississippi Rules of Civil Procedure, and the county would bear the cost of the sheriff’s fee. McCormick, May 27, 2005, A.G. Op. 05-0234.

RESEARCH REFERENCES

ALR.

Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant. 11 A.L.R.2d 607.

What costs or fees are contemplated by statute authorizing proceeding in forma pauperis. 98 A.L.R.2d 292.

Am. Jur.

Order – Ex parte – Granting leave to sue in forma pauperis, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Form 60.

Affidavit in support of motion for leave to sue in forma pauperis, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 55, 56.

Order – Denying leave to sue in forma pauperis, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Form 61.

CJS.

20 C.J.S., Costs §§ 90, 91, 99, 101 et seq.

§ 11-53-19. Court may dismiss action of poor persons.

The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.

HISTORY: Codes, 1880, § 2370; 1892, § 871; 1906, § 948; Hemingway’s 1917, § 657; 1930, § 664; 1942, § 1575.

Cross References —

Indigent being examined as to his financial condition, and a court dismissing the action if the claim of indigency is false, see Miss R. Civ. P. 3.

JUDICIAL DECISIONS

1. In general.

Evidence was sufficient to support a trial court’s determination that a patient’s estate’s claim of poverty was true and, therefore, the action, which was on remand for a new trial, was not subject to dismissal. Blake v. Estate of Clein, 37 So.3d 622, 2010 Miss. LEXIS 322 (Miss. 2010).

Where an action is brought pursuant to §11-53-17 and the court conducts a hearing on the issue of poverty to determine whether the action should be dismissed pursuant to §11-53-19, it is entirely reasonable and in the interest of judicial economy that the pleading also be examined and the affiant questioned to determine whether the action is frivolous and, therefore, subject to dismissal pursuant to Rule 11, Miss. R. Civ. P. Blanks v. State, 594 So. 2d 25, 1992 Miss. LEXIS 44 (Miss. 1992).

Evidence held insufficient to warrant holding plaintiff’s pauper’s affidavit was not true. Carroll v. Louisville & N. R. Co., 154 Miss. 188, 122 So. 469, 1929 Miss. LEXIS 129 (Miss. 1929).

If the court is satisfied that allegation of poverty is untruthful, dismissal must be based on testimony taken and preserved the same as other testimony. Feazell v. Soltzfus, 98 Miss. 886, 54 So. 444 (Miss. 1910).

RESEARCH REFERENCES

Am. Jur.

24 Am. Jur. 2d, Dismissal, Discontinuance and Nonsuit § 51.

Order – Vacating order granting leave to sue in forma pauperis, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Form 73.

CJS.

20 C.J.S., Costs §§ 99, 100.

§ 11-53-21. Judgment for costs against poor persons.

In cases commenced or continued on an affidavit of poverty, the officers of the court shall perform all the duties required in the prosecution of the suit, and the witnesses shall attend until released; but in the case of failure to prosecute his suit to effect, judgment shall be given against the plaintiff for costs, and execution may be issued as in other cases.

HISTORY: Codes, 1880, § 2371; 1892, § 872; 1906, § 949; Hemingway’s 1917, § 658; 1930, § 665; 1942, § 1576.

Cross References —

Rule governing the awarding of costs to litigants, see Miss. R. Civ. P. 54.

§ 11-53-23. Costs on dismissal for want of jurisdiction.

When a case shall be dismissed by any court for want of jurisdiction, judgment shall be rendered by such court for costs against the party who invoked the jurisdiction, as in other cases.

HISTORY: Codes, 1880, § 2372; 1892, § 873; 1906, § 950; Hemingway’s 1917, § 659; 1930, § 666; 1942, § 1577.

Cross References —

Rule with respect to payment of cost of previously dismissed action, see Miss. R. Civ. P. 41.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs § 23.

CJS.

20 C.J.S., Costs §§ 33, 35.

§ 11-53-25. Stale cases dismissed at cost of plaintiff.

The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.

HISTORY: Codes, 1857, ch. 61, art. 58; 1871, § 575; 1880, § 2373; 1892, § 874; 1906, § 951; Hemingway’s 1917, § 660; 1930, § 667; 1942, § 1578.

Cross References —

Requirement of notice before the dismissal of any case in which no action has been taken during the preceding twelve months, see Miss. R. Civ. P. 41.

JUDICIAL DECISIONS

1. Construction and application, generally.

2. Presumptions.

3. Dismissal.

4. Reinstatement.

5. Miscellaneous.

1. Construction and application, generally.

Statute of limitations applicable to action founded on judgment or decree (§15-1-43) is tolled when suit to renew decree is filed, but commences to run again when suit to renew is dismissed as stale under §11-53-25; dismissal of stale case is not dismissal for matter of form to which statute of limitations applicable to commencement of new action subsequent to abatement or defeat of original action (§15-1-69) would apply. Deposit Guaranty Nat'l Bank v. Roberts, 483 So. 2d 348, 1986 Miss. LEXIS 2396 (Miss. 1986).

This section [Code 1942, § 1578] manifests a legislative policy which renders improper the granting of leave to amend an inadequate complaint after fifteen years, though the action was never dismissed by the clerk or the court because never in the chancery clerk’s files. Osborne v. Vince, 240 Miss. 807, 129 So. 2d 345, 1961 Miss. LEXIS 514 (Miss. 1961).

While this section [Code 1942, § 1578] does not provide for notice to be given of the clerk’s motion to dismiss, evidently because of the fact that the interested parties are presumed to be before the court in cases pending on the active docket and are cognizant of what action is being taken or is proposed to be taken in their cases, and are, therefore, afforded opportunity to show “good cause” to the contrary, it was never contemplated by this section that the parties to a suit which has been passed to the files until the further order of the court should be required to remain in attendance from day to day and from term to term pending such further order in order to show cause why the case should not be finally disposed of in the proposed manner, if and when it is withdrawn from the file, whether the proceedings be civil or criminal. Ross v. Milner, 194 Miss. 497, 12 So. 2d 917, 1943 Miss. LEXIS 84 (Miss. 1943).

This section [Code 1942, § 1578] is applicable only to cases not yet decided, and hence was inapplicable where judgment below had been reversed on appeal, although under court rule no mandate had been issued because of appellee’s failure to pay costs. Dubois v. Thomas, 173 Miss. 697, 161 So. 868, 1935 Miss. LEXIS 239 (Miss. 1935).

This section [Code 1942, § 1578] is mandatory. Mississippi C. R. Co. v. Brookhaven Lumber & Mfg. Co., 165 Miss. 820, 147 So. 814, 1933 Miss. LEXIS 315 (Miss. 1933).

2. Presumptions.

Action not tried for more than three years after institution, presumed continued from term to term by consent. McCain v. Wade, 181 Miss. 664, 180 So. 748, 1938 Miss. LEXIS 106 (Miss. 1938).

Order of dismissal in county court was presumed to be correct where there was nothing in record to show that it was absolutely void, since there is a general presumption in favor of correctness of judgments and presumption would obtain that dismissal was had because case was stale, in which event no notice was required. Baker v. Moore, 176 Miss. 431, 169 So. 773, 1936 Miss. LEXIS 148 (Miss. 1936).

3. Dismissal.

Statute of limitations applicable to action founded on judgment or decree (§15-1-43) is tolled when suit to renew decree is filed, but commences to run again when suit to renew is dismissed as stale under §11-53-25; dismissal of stale case is not dismissal for matter of form to which statute of limitations applicable to commencement of new action subsequent to abatement or defeat of original action (§15-1-69) would apply. Deposit Guaranty Nat'l Bank v. Roberts, 483 So. 2d 348, 1986 Miss. LEXIS 2396 (Miss. 1986).

In an action by a savings and loan association against a former vice-president of the association and members of the board of directors for $26 million dollars in damages based on alleged breach of fiduciary duty in the management of the association, the trial court erred in granting the defendants’ motion to dismiss the action as stale where the case was complex, involving an enormous mass of documentary material, and required a tremendous amount of work and time to comply with discovery, where the attorney for the savings and loan association had been killed in an airplane crash following four years of discovery proceedings and the association had made diligent efforts to retain substitute counsel, and where the defendants had made no effort to show prejudice which may have been sustained over the period of time prior to the dismissal. Liberty Sav. & Loan Asso. v. Mitchell, 398 So. 2d 208, 1981 Miss. LEXIS 2003 (Miss. 1981).

Where the order sustaining the defendant’s demurrer and granting the complainant 30 days in which to amend his bill was entered in 1964, and when no amendment was filed the solicitor for the complainant, and defendant at several calls of the docket requested the chancery clerk to move to dismiss the suit as a stale case in compliance with Code 1942, § 1578, but no motion was made by the clerk and defendants did not file a motion to dismiss until 1967 when an attorney other than the attorney who had filed the original bill appeared and filed a motion asking for additional time in which to plead, the trial court did not err in refusing to dismiss the suit. Helton v. Evans, 208 So. 2d 778, 1968 Miss. LEXIS 1429 (Miss. 1968).

Where the heirs of a grantor brought an action to set aside a deed on the ground of mental incapacity of grantor, and such action was passed to the files pending the determination of a will contest predicated on grantor’s want of testamentary capacity, and more than two years after the adjudication of the will contest in complainants’ favor, such suit was reinstated on the active docket by an heir of grantee and dismissed on motion, this section [Code 1942, § 1578] did not apply to permit dismissal of the action as a stale case where the heirs of grantor were not informed of the reinstatement of the action. Ross v. Milner, 194 Miss. 497, 12 So. 2d 917, 1943 Miss. LEXIS 84 (Miss. 1943).

Where cause was dismissed as stale on clerk’s motion, court properly refused, under facts shown, to set aside order of dismissal. Mississippi C. R. Co. v. Brookhaven Lumber & Mfg. Co., 165 Miss. 820, 147 So. 814, 1933 Miss. LEXIS 315 (Miss. 1933).

4. Reinstatement.

Case which has been dismissed as stale cannot be reinstated after expiration of term of court within which dismissal is entered unless dismissal is defective, or involves fraud, mistake or accident. Deposit Guaranty Nat'l Bank v. Roberts, 483 So. 2d 348, 1986 Miss. LEXIS 2396 (Miss. 1986).

A case dismissed as stale by a trial court may be reinstated during the same term of court without notice to the adverse party. Mississippi Rice Growers Asso. v. Pigott, 191 So. 2d 399, 1966 Miss. LEXIS 1210 (Miss. 1966).

5. Miscellaneous.

Circuit court properly refused to entertain petition to transfer case which had been dismissed in county court by order from which no appeal had been taken. Baker v. Moore, 176 Miss. 431, 169 So. 773, 1936 Miss. LEXIS 148 (Miss. 1936).

OPINIONS OF THE ATTORNEY GENERAL

Under Section 11-53-25 a county should have two months following date of judgment before it would be required to pay the accrued costs in justice court. Thornton, December 6, 1995, A.G. Op. #95-0775.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 22, 87,.93

CJS.

20 C.J.S., Costs § 33, 35.

§§ 11-53-27 and 11-53-29. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

§11-53-27. [Codes, Hutchinson’s 1848, ch. 61, art. 1 (74); 1857, ch. 61, art. 255; 1880, § 2375; 1892, § 875; 1906, § 952; Hemingway’s 1917, § 661; 1930, § 668; 1942, § 1579]

§11-53-29. [Codes, 1892, § 876; 1906, § 953; Hemingway’s 1917, § 662; 1930, § 669; 1942, § 1580]

Editor’s Notes —

Former §11-53-27 related to successful party to recover costs generally.

Former §11-53-29 related to successful defendant recovers costs, though plaintiff recover against others.

§ 11-53-31. Successful party liable for certain costs.

All costs accrued at the instance of the successful defendant in a suit, which cannot be collected out of the other party, may be collected from such defendant; and after return of “no property” on execution against a plaintiff or complainant against whom costs were adjudged, execution may be issued against the successful defendant for all cost accrued at his instance and not paid or collected from the other party. A successful plaintiff or complainant shall be liable for all the costs of the case accrued at his instance which cannot be collected from the defendants; and after return of “no property” on execution against the defendant against whom costs were adjudged, execution may be issued against the successful plaintiff or complainant for all the costs of the case accrued at his instance not paid or collected from the defendant. An unsuccessful plaintiff or complainant shall be liable for all the costs of the case.

HISTORY: Codes, 1880, § 2381; 1892, § 877; 1906, § 954; Hemingway’s 1917, § 663; 1930, § 670; 1942, § 1581.

Cross References —

Rule covering the awarding of costs to litigants, see Miss. R. Civ. P. 54.

JUDICIAL DECISIONS

1. In general.

The state employment security commission is not exempted from the payment of court costs incurred in connection with litigation in which it engages. Mississippi Employment Sec. Com. v. Wilks, 251 Miss. 744, 171 So. 2d 157, 1965 Miss. LEXIS 898 (Miss. 1965).

Where no property of plaintiff could be found, a successful defendant was liable for the jury-tax of $3. Gulf & S. I. R. Co. v. Mitchell, 112 Miss. 560, 73 So. 577, 1916 Miss. LEXIS 146 (Miss. 1916).

Where by the fault of the defendant in not keeping accounts as he obligated himself to do, a large volume of testimony was necessarily taken touching a great number of items, the supreme court will adjudge defendant to pay two-thirds of the cost of his appeal, although it reverses the decree appealed from by him because of errors in respect to several of said items. Rowan v. Lamb, 83 Miss. 45, 35 So. 427, 1903 Miss. LEXIS 11 (Miss. 1903).

OPINIONS OF THE ATTORNEY GENERAL

Unsuccessful civil action brought in name of county would nevertheless, subject county to same liability as to court cost, i.e. constable fees, that any other civil plaintiff would be required to pay into court for said services. Gann, March 21, 1990, A.G. Op. #90-0184.

Under Section 11-53-31, a tax collector does have to prepay the sheriff’s fee, therefore, if there is no property found upon which to execute, a tax collector will lose the money used to pay the sheriff’s fee. Hollimon, July 12, 1996, A.G. Op. #96-0400.

RESEARCH REFERENCES

ALR.

Validity of statute allowing attorneys’ fees to successful claimant but not to defendant, or vice versa. 73 A.L.R.3d 515.

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 86, 9 et seq.

CJS.

20 C.J.S., Costs §§ 10 et seq., 53, 54.

§ 11-53-33. Costs not recovered in some cases — limited in others.

In actions of assault, assault and battery, libel and slander, if the plaintiff recover less than Ten Dollars ($10.00), costs shall not be awarded to him. In all other actions sounding in damages, where the plaintiff sues for more than Ten Dollars ($10.00) and recovers less than that sum, no more costs than the amount of damages recovered shall be awarded to him, unless the court be of the opinion that the plaintiff had reasonable cause to expect to recover more, and that the action was brought for no other purpose than to be compensated for the wrong done, and enter the same on its minutes. If more costs be awarded, the judgment may be amended on motion at any time.

HISTORY: Codes, Hutchinson’s 1848, ch. 61, art. 2 (17); 1857, ch. 61, art. 256; 1880, § 2376; 1892, § 878; 1906, § 955; Hemingway’s 1917, § 664; 1930, § 671; 1942, § 1582.

Cross References —

Actionability of words generally, see §95-1-1.

Punishment of one convicted of writing or publishing any libel, see §97-3-55.

Truth as defense in criminal prosecution for libel, see §97-3-57.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 1582] governs in action ex delicto. It was enacted to discourage frivolous and vexatious litigation. Kansas City, M. & B. R. Co. v. Mabry, 67 Miss. 131, 7 So. 224, 1889 Miss. LEXIS 50 (Miss. 1889).

RESEARCH REFERENCES

ALR.

Validity, construction, and application of statute limiting damages recoverable for defamation. 13 A.L.R.2d 277.

Who is protected by statute restricting recovery unless retraction is demanded. 84 A.L.R.3d 1249.

Libel and slander: Charging one with breach or nonperformance of contract. 45 A.L.R.5th 739.

Validity, Construction, and Application of State Vexatious Litigant Statutes. 45 A.L.R.6th 493.

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 2, 5, 14.

CJS.

20 C.J.S., Costs §§ 19 et seq.

§ 11-53-35. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1857, ch. 62, art. 56; 1871, § 1035; 1880, § 2374; 1892, § 879; 1906, § 956; Hemingway’s 1917, § 665; 1930, § 672; 1942, § 1583]

Editor’s Notes —

Former §11-53-35 related to costs discretionary in chancery.

§ 11-53-37. Costs in class suits.

Where a party hereafter institutes a suit for the benefit of himself and all others similarly situated, and thereby there is in such suit recovered or preserved property or a fund for the common benefit, the chancery court may make an allowance to such party of the reasonable costs incurred, which costs shall include the necessary disbursements, and reasonable solicitor’s fees, out of the property recovered or preserved for the common benefit.

HISTORY: Codes, 1942, § 1583.5; Laws, 1948, ch. 234.

JUDICIAL DECISIONS

1. In general.

2. Class actions not available.

1. In general.

Section 11-53-37 does not apply to public service litigation. Fordice v. Thomas, 649 So. 2d 835, 1995 Miss. LEXIS 34 (Miss. 1995), but see USPCI of Mississippi v. State ex rel. McGowan, 688 So. 2d 783, 1997 Miss. LEXIS 42 (Miss. 1997).

An attorney’s fee is properly allowed to attorneys for successful appellees in a proceeding involving the construction of a will. In re Will of Powell, 239 Miss. 10, 121 So. 2d 1, 1960 Miss. LEXIS 261 (Miss. 1960).

2. Class actions not available.

Miss. Code Ann. §11-53-37 explained how attorney’s fees would be awarded in class actions in chancery if there was an equitable class action; if and when the Mississippi Supreme Court chose to adopt a class action rule, §11-53-37 would become operable again, as it was decades ago. It served no function currently because there were no class actions under the Mississippi Rules of Civil Procedure, whether in circuit or chancery court; the chancery court erred in concluding otherwise. USF&G Ins. Co. v. Walls, 2004 Miss. LEXIS 657 (Miss. June 10, 2004).

RESEARCH REFERENCES

ALR.

Attorneys’ fees in class actions. 38 A.L.R.3d 1384.

Attorneys’ fees; cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Award of attorneys’ fees under § 204(b) of Civil Rights Act of 1964 (42 USCS § 2000a-3(b)) authorizing court to allow prevailing party, other than United States, reasonable attorney’s fee as part of costs in action under public accommodations part of Act. 16 A.L.R. Fed. 621.

Award of attorneys’ fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)) authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission or United States, reasonable attorney’s fee as part of costs in action under equal employment opportunities part of Act. 16 A.L.R. Fed. 643.

Construction and application of “common fund” doctrine in allocating attorneys’ fees among multiple attorneys whose efforts were unequal in benefiting multiple claimants. 42 A.L.R. Fed. 134.

Am. Jur.

20 Am. Jur. 2d (Rev), Costs § 30.

Law Reviews.

Tort Reform by the Mississippi Supreme Court, 24 Miss. C. L. Rev. 427, Spring, 2005.

§ 11-53-39. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 49, art. 1 (111); 1857, ch. 60, art. 119; 1880, § 2377; 1892, § 880; 1906, § 957; Hemingway’s 1917, § 666; 1930, § 673; 1942, § 1584]

Editor’s Notes —

Former §11-53-39 related to executors and administrators entitled to and liable for costs.

§ 11-53-41. Executors and administrators entitled to and liable for costs — when not individually liable.

When costs are adjudged against an executor or administrator in a suit at law or in equity, and he shall obtain the certificate of the court before which the suit was tried that there was probable cause for bringing or defending the same, he shall not be individually liable for costs, although the estate may be insufficient to pay them.

HISTORY: Codes, 1857, ch. 60, art. 132; 1880, § 2378; 1892, § 881; 1906, § 958; Hemingway’s 1917, § 667; 1930, § 674; 1942, § 1585.

JUDICIAL DECISIONS

1. In general.

Where a verdict is rendered against an administrator in a suit brought by him, and he obtains a certificate from the courts, under this section [Code 1942, § 1585], exempting him personally from the costs upon such certificate, that there was probable cause of bringing the suit, a judgment for costs should not be rendered against the sureties on a voluntary bond given by the plaintiff limiting their liability to the payment of such costs as might be adjudged against the plaintiff involuntarily. Nichols v. Gulf & S. I. R. Co., 83 Miss. 126, 36 So. 192, 1903 Miss. LEXIS 20 (Miss. 1903).

The statute does not absolve an administrator from liability for costs incurred by him in the service of process for his witness fees, and the cost of a transcript on appeal, whether he be successful or not in prosecuting or defending the suit. Campbell v. Doyle, 57 Miss. 292, 1879 Miss. LEXIS 73 (Miss. 1879).

The administrator will not be allowed for costs in his accounts unless he obtains the certificate provided in the statute. Williamson v. Childress, 26 Miss. 328, 1853 Miss. LEXIS 96 (Miss. 1853); Effinger v. Richards, 35 Miss. 540, 1858 Miss. LEXIS 57 (Miss. 1858).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 30- 31.

CJS.

20 C.J.S., Costs §§ 56, 60.

§ 11-53-43. Executors and administrators entitled to and liable for costs — in their administration.

Executors and administrators shall be personally liable for the fees which accrue in the administration, and the estates in their hands shall be chargeable with such fees in preference to all other demands. It shall be lawful for the clerk of the chancery court to make out executions for the fees that may become due the officers of court or the publisher of a newspaper at any time in the administration of an estate. Every such execution shall have annexed to it a copy of the bill of costs, specifying the particular items thereof, to be enforced as in other cases.

HISTORY: Codes, 1880, § 2379; 1892, § 882; 1906, § 959; Hemingway’s 1917, § 668; 1930, § 675; 1942, § 1586.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 30- 31.

CJS.

20 C.J.S., Costs §§ 56, 60.

§ 11-53-45. Next friend of infant liable for costs.

If in any case the plaintiff or complainant be an infant suing by next friend, such next friend shall be liable for costs.

HISTORY: Codes, 1880, § 2380; 1892, § 883; 1906, § 960; Hemingway’s 1917, § 669; 1930, § 676; 1942, § 1587.

Cross References —

Power of chancery court to appoint guardian ad litem to infant, see §9-5-89.

Institution of proceedings by next friend of minor to remove disability of minority, see §93-19-3.

RESEARCH REFERENCES

ALR.

Validity of statute allowing attorneys’ fees to successful claimant but not to defendant, or vice versa. 73 A.L.R.3d 515.

§ 11-53-47. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 2382; 1892, § 884; 1906, § 961; Hemingway’s 1917, § 670; 1930, § 677; 1942, § 1588]

Editor’s Notes —

Former §11-53-47 related to costs as between defendants.

§ 11-53-49. Costs in cases of setoff.

When a setoff is pleaded or filed and established, the defendant shall recover of the plaintiff his costs expended in establishing it, although judgment be rendered in favor of the plaintiff for a balance due him.

HISTORY: Codes, 1880, § 2385; 1892, § 885; 1906, § 962; Hemingway’s 1917, § 671; 1930, § 678; 1942, § 1589.

JUDICIAL DECISIONS

1. In general.

Trial court does not abuse its discretion by entering order allowing plaintiff to recover full costs in action for recovery of damages caused by killing of one milch cow and wounding of three others, in which action defendant claimed and was allowed $50 damages on account of corn destroyed by plaintiff’s cattle, since defendant was not entitled to set off in tort action unliquidated damages caused by separate tort on part of plaintiff. Vines v. Perry, 208 Miss. 869, 45 So. 2d 734, 1950 Miss. LEXIS 307 (Miss. 1950).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 11, 12.

CJS.

20 C.J.S., Costs § 13.

§ 11-53-51. Costs in cases of appeal from justices of the peace.

In cases of appeal from a judgment of a justice of the peace, if the appeal be by the defendant, and judgment be rendered thereon for the plaintiff equal to or greater than that recovered by him before the justice of the peace, he shall recover of the defendant full costs; but if the judgment for plaintiff be less than that recovered by him before the justice of the peace, the court may, on motion of defendant, apportion the costs between the parties as may be proper, otherwise defendant shall be liable for all the costs. If the judgment on such appeal be rendered for the defendant, he shall recover of the plaintiff full costs. If the appeal be by plaintiff from a judgment rendered against him, and he recover judgment thereon, he shall recover of the defendant full costs; but if the defendant recover judgment thereon, he shall recover of plaintiff full costs. If a party appeal from a judgment in his favor, and does not obtain judgment for more than he recovered before the justice of the peace, he shall not recover costs that accrued on appeal, but shall be liable for such costs. But in such cases the circuit court, may, when the circumstances justify it, tax the costs to meet the ends of justice. In all cases where the principal is made liable for costs, judgment shall be rendered therefor against him and the sureties on his appeal bond jointly.

HISTORY: Codes, 1871, § 1597; 1880, §§ 2354, 2384; 1892, § 886; 1906, § 963; Hemingway’s 1917, § 672; 1930, § 679; 1942, § 1590.

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 —

Trial of case on appeal from justice of the peace court to circuit court, see §11-51-91.

Duty of circuit court clerk to tax costs accruing on trial before justice of the peace of case appealed to circuit court, see §11-53-71.

JUDICIAL DECISIONS

1. In general.

On appeal of a cause by a defendant from justice’s court to the circuit court, the successful plaintiff may be required to furnish security for costs, since the case will be tried anew, and the rights of both parties are the same as if the suit had been originally brought in the circuit court; the plaintiff enjoys the privilege of seeking a larger judgment and is confronted with the possibility of liability or further cost in the event he loses his case or recovers judgment for less than the amount appealed from. Archer v. High, 193 Miss. 361, 9 So. 2d 647, 1942 Miss. LEXIS 118 (Miss. 1942).

The statute arms the circuit court with authority as to the costs on appeals from justices’ courts, under which any abuse by a defendant of the right to interpose a defense for the first time in the circuit court could be prevented from doing injury to the plaintiff. D. Callahan & Co. v. Newell, 61 Miss. 437, 1884 Miss. LEXIS 105 (Miss. 1884).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 812.

§ 11-53-53. Costs in cases of certiorari and appeals from certain inferior tribunals.

In all cases of certiorari upon the judgment of any inferior court or tribunal, and the cases of appeal from the judgment of a board or supervisors, of a court of unlawful entry and detainer, of any municipal board or court, the successful party shall be entitled to recover full costs; but the circuit court may, when the circumstances of the case justify it, tax the costs to meet the ends of justice.

HISTORY: Codes, 1880, § 2384; 1892, § 887; 1906, § 964; Hemingway’s 1917, § 673; 1930, § 680; 1942, § 1591.

Cross References —

Use of certiorari to review cases decided by justices of the peace in circuit court, see §11-51-93.

Use of certiorari to review judgments of tribunals inferior to circuit court, see §11-51-95.

Duty of circuit court clerk to tax costs accruing on trial before any inferior tribunal or court of case appealed to the circuit court, see §11-53-71.

JUDICIAL DECISIONS

1. In general.

Trial court did not abuse discretion in taxing costs of condemnation proceedings against county, though recovery was less than damage allowed. Yalobusha County v. Davis, 148 Miss. 153, 114 So. 34, 1927 Miss. LEXIS 7 (Miss. 1927).

RESEARCH REFERENCES

Am. Jur.

5 Am. Jur. 2d (Rev), Appellate Review §§ 812.

§ 11-53-55. Cases not expressly embraced by statute or Rule.

If a case shall occur in any court not embraced expressly by statute, Mississippi Rules of Civil Procedure or Mississippi Supreme Court Rules, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper.

HISTORY: Codes, 1880, § 2386; 1892, § 889; 1906, § 966; Hemingway’s 1917, § 675; 1930, § 682; 1942, § 1593; Laws, 1993, ch. 452, § 2, eff from and after passage (approved March 22, 1993).

Cross References —

Payment of costs of causes transferred from chancery court to circuit court, or vice versa, see §11-1-41.

JUDICIAL DECISIONS

1. In general.

Consolidated cases never lose their identity as separate and distinct cases for purposes of assessment of costs. The court has no authority to assess costs in one of the consolidated cases against one who was a party only in the other case. Adoption of Karenina v. Presley, 526 So. 2d 518, 1988 Miss. LEXIS 244 (Miss. 1988).

On a motion to retax costs, costs of the appeal would be taxed one-half against each party where the appellant had obtained reversal of that portion of the judgment which awarded appellee punitive damages but that portion of the judgment awarding appellee actual damages had been affirmed. Gulf Guaranty Life Ins. Co. v. Kelley, 392 So. 2d 518, 1981 Miss. LEXIS 1906 (Miss. 1981).

Under the rule authorizing a court to exercise its discretion in the assessment of costs in certain cases, the cost of appeal would be assessed one half to each party in the case where the status of the plaintiff was that of an unsuccessful appellant and a successful cross appellee although a successful but dissatisfied plaintiff below, while a defendant was a successful appellee and an unsuccessful cross appellant. Pearce v. Ford Motor Co., 235 So. 2d 281, 1970 Miss. LEXIS 1442 (Miss. 1970).

Where a claimant, appealing from the decision of the workmen’s compensation commission to the circuit court, successfully contended that he was entitled to recover the 20 per cent penalty as provided for in Code 1942, § 6998-19 (f), but was unsuccessful as to his contention that the entire award should have been judged to be due and payable, as provided in Code 1942, § 6998-25, the court was authorized under this section [Code 1942, § 1593] to apportion the cost between the parties. T. C. Fuller Plywood Co. v. Moffett, 231 Miss. 382, 95 So. 2d 475, 1957 Miss. LEXIS 523 (Miss. 1957).

Where an award of appeal costs had been an authorized act of the supreme court clerk and the question of appeal costs was not brought to the attention of the court, a motion to correct a decree entered by changing award of costs so to assess the costs evenly between the parties, was not in effect a suggestion of error. Shipman v. Lovelace, 215 Miss. 141, 60 So. 2d 559, 1952 Miss. LEXIS 546 (Miss. 1952).

Trial court did not abuse its discretion by its judgment reciting that in court’s opinion plaintiff had reasonable ground to expect to recover more than $200 from defendant and ordering that plaintiff recover full costs in action for recovery of $225 actual damages and punitive damages for killing of milch cow and injuring three others, particularly where jury failed to award damage for injury to one cow in awarding plaintiff $192. Vines v. Perry, 208 Miss. 869, 45 So. 2d 734, 1950 Miss. LEXIS 307 (Miss. 1950).

On appeal of a cause by a defendant from justice’s court to the circuit court, the successful plaintiff may be required to furnish security for costs, since the case will be tried anew, and the rights of both parties are the same as if the suit had been originally brought in the circuit court; the plaintiff enjoys the privilege of seeking a larger judgment and is confronted with the possibility of liability or further cost in the event he loses his case or recovers judgment for less than the amount appealed from. Archer v. High, 193 Miss. 361, 9 So. 2d 647, 1942 Miss. LEXIS 118 (Miss. 1942).

The power to order payment of costs by either party under the section [Code 1942, § 1593] arises only where no provision has been made by law, “expressly or by fair implication,” for the payment of costs. Clarke v. Parker, 63 Miss. 549, 1886 Miss. LEXIS 136 (Miss. 1886).

The discretion given by the statute to the trial court in the matter of taxation of costs will not be interfered with. Highland A. & B. R. Co. v. Robinson, 125 Ala. 483, 28 So. 28, 1899 Ala. LEXIS 321 (Ala. 1899).

RESEARCH REFERENCES

ALR.

Allowance of attorneys’ fees in, or other costs of, litigation by beneficiary respecting trust. 9 A.L.R.2d 1132.

§ 11-53-57. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, Hutchinson’s 1848, ch. 33, art. 4 (2); 1857, ch. 8, art. 2; 1880, § 2387; 1892, § 890; 1906, § 967; Hemingway’s 1917, § 676; 1930, § 683; 1942, § 1594]

Editor’s Notes —

Former §11-53-57 related to taxation of costs – what costs taxed.

§§ 11-53-59 and 11-53-61. Repealed.

Repealed by Laws of 1977, ch. 408, § 2, eff from and after passage (approved March 29, 1977), and further providing that any funds previously collected under said section shall be paid to the circuit clerk of each county and utilized in accordance with the provisions of this section.

§11-53-59. [Codes, 1942, § 1594.5; Laws, 1962, chs. 298, 304; Laws, 1964, ch. 321; Laws, 1968, ch. 331, § 1; Laws, 1968, ch. 332, § 1; Laws, 1969 Ex Sess, ch. 21, § 1; Laws, 1971, ch. 420, § 1, eff from and after passage (approved March 23, 1971); Am 1972, ch. 442, § 1]

§11-53-61. [Codes, 1942, § 1594.7; Laws, 1970, ch. 338, § 1, eff from and after the first day of the next succeeding month after passage (approved March 6, 1970)]

Editor’s Notes —

Former §11-53-59 related to collection of library fee as costs in certain counties.

Former §11-53-61 related to collection of library fees as costs in additional counties.

§ 11-53-63. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

[Codes, 1880, § 2383; 1892, § 891; 1906, § 968; Hemingway’s 1917, § 677; 1930, § 684; 1942, § 1595]

Editor’s Notes —

Former §11-53-61 related to retaxation of costs.

§ 11-53-65. Bill of costs made and filed.

When a cause shall be determined, the clerk of the court, and the justice of the peace in cases had before him, shall tax the costs of the case and make out a bill thereof, specifying therein each section of the law, and each paragraph or subdivision of section, if any, by virtue of which each fee or item of costs therein is charged or taxed, and he shall file the same with the papers in the cause.

HISTORY: Codes, 1857, ch. 8, art. 3; 1880, § 2388; 1892, § 892; 1906, § 969; Hemingway’s 1917, § 678; 1930, § 685; 1942, § 1596.

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 —

Duty of circuit court clerk to deliver to clerk of the board of supervisors certified list of allowances made by court, payable out of county treasury, see §9-7-129.

Duty of justice of peace to give itemized receipt to any person paying fees or costs, see §9-11-21.

Preparation by clerk of supreme court of fee-bill of fees adjudged against state, see §25-7-7.

Duty of district attorney to pass on all accounts of public nature before they are allowed by circuit court, see §25-31-15.

JUDICIAL DECISIONS

1. In general.

Where the clerk’s cost bill was not properly itemized, was apparently excessive for the reason that nearly 40 witness subpoenas were improperly copied into the record, and the court reporter’s cost bill did not contain a certificate of a number of words transcribed, appellant was granted leave to file a motion to retax costs. Conn v. State, 231 Miss. 835, 97 So. 2d 923, 1957 Miss. LEXIS 569 (Miss. 1957).

Where a chancery clerk in preparing his certified statement of transcript fees stated the rate charged and the total sum for preparing the transcript, but failed to disclose the number of the words in the transcript, the certificate was null and void. Superior Oil Co. v. Foote, 216 Miss. 728, 65 So. 2d 453, 1953 Miss. LEXIS 687 (Miss. 1953).

Until this section [Code 1942, § 1596] is complied with, no taxation of costs has been made, as respects right to retaxation thereof. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

Compliance with statute (Code 1942, § 1597), providing that fees and costs shall not be payable until person chargeable has been presented with a bill containing the particulars of such fees signed by the clerk or officer is dependent upon a taxation of costs in accordance with section of statute requiring taxation of costs and preparation of a bill thereof, specifying the section of law by virtue of which each fee is charged. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

Taxation of costs by clerk of supreme court based upon trial court’s certificate which stated aggregate amount of fees for making transcript and for other services rather than itemizing the account to show amount of fee for transcript would be set aside except in so far as it taxed fees due clerk of supreme court, but with permission granted to clerk of trial court to file a proper certificate and without prejudice to appellant to move for retaxation of costs. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs § 86.

Taxation of costs, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 91-109.

CJS.

20 C.J.S., Costs §§ 163-165.

§ 11-53-67. Fees not payable until bill produced.

Fees and costs shall not be payable by any person until there be produced to the person chargeable with the same a bill, or account in writing, containing the particulars of such fees, signed by the clerk or officer, in which shall be intelligently expressed and specified each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each fee is charged. If any fee shall be paid without the production of such bill, the party paying the same shall at all times be entitled to demand and have from the officer receiving the same a copy of such bill without charge.

HISTORY: Codes, Hutchinson’s 1848, ch. 33, art. 4 (4); 1857, ch. 8, art. 3; 1880, § 2389; 1892, § 893; 1906, § 970; Hemingway’s 1917, § 679; 1930, § 686; 1942, § 1597.

JUDICIAL DECISIONS

1. In general.

Where a chancery clerk in preparing his certified statement of transcript fees stated the rate charged and the total sum for preparing the transcript, but failed to disclose the number of the words in the transcript, the certificate was null and void. Superior Oil Co. v. Foote, 216 Miss. 728, 65 So. 2d 453, 1953 Miss. LEXIS 687 (Miss. 1953).

This section [Code 1942, § 1597] is inapplicable to require sheriff’s claim presented to county board of supervisors for services required of the sheriff by board of supervisors for which no fees were fixed and for executing decrees, judgments, orders of process of the supreme court, chancery courts, or board of supervisors, to contain detailed itemization of the particular instances of such services. Board of Supervisors v. Jones, 199 Miss. 373, 24 So. 2d 844, 1946 Miss. LEXIS 206 (Miss. 1946).

Compliance with this section [Code 1942, § 1597] is dependent upon a taxation of costs in accordance with Code 1942, § 1596. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

Taxation of costs by clerk of supreme court based on trial court’s certificate of aggregate amount of fees for transcript and other services rather than itemized account showing fee for transcript, set aside, except as to fees due clerk of supreme court, with permission to clerk of trial court to file a proper certificate, and without prejudice to appellant’s moving for retaxation of costs. McDonald v. Spence, 179 Miss. 348, 176 So. 607, 1937 Miss. LEXIS 72 (Miss. 1937).

RESEARCH REFERENCES

CJS.

20 C.J.S., Costs § 224.

§ 11-53-69. Costs not due until suit ended.

The costs accruing upon suits in any court shall not be due until the final determination thereof, and may then be collected by execution; but the judges shall have power to order and adjudge costs and give decrees and judgments thereon in the progress of suits, as heretofore practised in said courts.

HISTORY: Codes, 1857, ch. 8, art. 8; 1880, § 2392; 1892, § 894; 1906, § 971; Hemingway’s 1917, § 680; 1930, § 687; 1942, § 1598.

Cross References —

Duty of circuit court clerk to issue execution, after adjournment of every term, for all fines, penalties, and forfeitures assessed by court and remaining due and unpaid, see §§11-7-217,99-19-65.

Liability of clerks, sheriffs, and other officers for neglect of duty in respect to executions for fines, penalties, and forfeitures, see §§11-7-221,99-19-69.

Provision for additional costs to create court education and training fund, see §§37-26-1 et seq.

JUDICIAL DECISIONS

1. In general.

No authority is conferred by this section [Code 1942, § 1598] to require a defendant to post security for costs. Martin v. McGraw, 249 Miss. 334, 160 So. 2d 89, 161 So. 2d 784, 1964 Miss. LEXIS 530 (Miss. 1964).

No authority for requiring a defendant to pay a filing fee as a condition for receiving a defensive pleading is conferred by this section [Code 1942, § 1598]. Martin v. McGraw, 249 Miss. 334, 160 So. 2d 89, 161 So. 2d 784, 1964 Miss. LEXIS 530 (Miss. 1964).

Where a law authorizes a party recovering costs to file the certificates of his witnesses, the fees of whom he has paid, and have the same included in an execution for costs, this does not apply to the fees of witnesses for an unsuccessful party. They have merely a claim against him, enforceable by suit. Hall v. Moore, 70 Miss. 75, 11 So. 655, 1892 Miss. LEXIS 63 (Miss. 1892).

One at whose instance an execution for costs is issued, having by agreement with the officers of the court control of the execution, stands, as the officers would, in the attitude of a public trustee and cannot use the process for oppression or speculation. Hall v. Moore, 70 Miss. 75, 11 So. 655, 1892 Miss. LEXIS 63 (Miss. 1892).

RESEARCH REFERENCES

CJS.

20 C.J.S., Costs § 224.

§ 11-53-71. Taxation of costs in cases from justices of the peace.

The clerk of the circuit court is required to tax in the bill of costs, after final judgment, all the costs that accrued on the trial before a justice of the peace, or before any other inferior tribunal or court, in all cases carried to the circuit court by appeal or by certiorari, and include the same in the execution issued for the costs accruing in the case in the circuit court.

HISTORY: Codes, 1880, § 2659; 1892, § 895; 1906, § 972; Hemingway’s 1917, § 681; 1930, § 688; 1942, § 1599.

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 —

Appeals from judgments of justices rendered in cases of unlawful entry and detainer, see §11-51-83.

Appeals from judgments of justices of the peace in civil cases, see §11-51-85.

Trial of cases on appeal from justice of the peace court to circuit court, see §11-51-91.

Imposition of costs in cases of appeal from judgments of justices of the peace, see §11-53-51.

Imposition of costs in cases of certiorari and appeals from certain inferior tribunals, see §11-53-53.

Appeals from judgments of certain inferior courts in criminal cases, see §§99-35-1 et seq.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 84 et seq.

Taxation of costs, 7 Am. Jur. Pl & Pr Forms (Rev), Costs, Forms 91-109.

CJS.

20 C.J.S., Costs §§ 156 et seq.

§ 11-53-73. Execution for costs.

It shall be lawful for the clerks of the several courts, when suits or causes are determined and the fees not paid by the party from whom they are due, to make out executions, directed to the sheriff or other proper officer of the county where the party resides; and the sheriff or other officer shall execute and return such execution as in other cases.

HISTORY: Codes, Hutchinson’s 1848, ch. 33, art. 4 (5); 1857, ch. 8, art. 5; 1880, § 2390; 1892, § 896; 1906, § 973; Hemingway’s 1917, § 682; 1930, § 689; 1942, § 1600.

Cross References —

Another section derived from same 1942 code section, see §11-53-75.

Time within which executions on judgments and decrees shall be issued, see §13-3-111.

Issuance and return of executions generally, see §13-3-113.

JUDICIAL DECISIONS

1. In general.

Sales under execution issued to satisfy costs taxed against surety on appeal bond is void, where execution was issued and levy made in one county, and surety lived in another. Griffin v. Hickman, 92 Miss. 266, 46 So. 73, 1908 Miss. LEXIS 209 (Miss. 1908).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Costs §§ 84, 89, 90.

CJS.

20 C.J.S., Costs §§ 233-236.

§ 11-53-75. Bill of costs appended to execution.

On all executions in which any costs are included, there shall be entered thereon or annexed a copy of the bill of costs, specifying the particular items thereof, in intelligible words and figures, and each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each item therein is charged; and all such executions issuing without the copy of such bill of costs shall be illegal, and the sheriff or other officer shall not execute the same. The sheriff or other officer receiving the same shall add thereto, in like manner, his fees, including all additional fees and costs, and shall make out a fair copy of the same and deliver it, on demand, to the person from whom he receives the money or out of whose property he makes the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 33, art. 4 (5); 1857, ch. 8, art. 5, 6; 1880, §§ 2390, 2391; 1892, §§ 896, 897; 1906, §§ 973, 974; Hemingway’s 1917, §§ 682, 683; 1930, §§ 689, 690; 1942, §§ 1600, 1601.

Cross References —

Another section derived from same 1942 code section, see §11-53-73.

JUDICIAL DECISIONS

1. In general.

Execution for costs accruing in criminal case held quashable on motion, where execution contained no itemized bill for costs specifying sections of law by virtue of which items were charged. Riley v. State, 175 Miss. 831, 168 So. 475, 1936 Miss. LEXIS 86 (Miss. 1936).

Execution sale of land without having bill of costs attached thereto is void, and may be quashed on motion. Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93, 1930 Miss. LEXIS 292 (Miss. 1930).

No costs can be collected under execution not having statement of costs attached. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, 1929 Miss. LEXIS 175 (Miss. 1929).

Failure to annex to execution copy of bill of costs does not render execution void in so far as it commands collection of principal of judgment. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, 1929 Miss. LEXIS 175 (Miss. 1929).

Judgment against claimant of property levied on and sureties for costs accrued in justice court proceedings held erroneous, where copy of bill of costs was not annexed to execution. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773, 1929 Miss. LEXIS 175 (Miss. 1929).

RESEARCH REFERENCES

ALR.

Validity of statute allowing attorneys’ fees to successful claimant but not to defendant, or vice versa. 73 A.L.R.3d 515.

Am. Jur.

20 Am. Jur. 2d, Costs §§ 84, 86, 90.

CJS.

20 C.J.S., Costs §§ 163-165, 233-236.

§ 11-53-77. Combining orders and decrees to save costs.

It shall be the duty of the judges of the several courts to require the clerks to combine in one judgment or decree as many interlocutory or other orders as can be lawfully and conveniently done, with a view to prevent the increase of costs, and, on application of any party, to correct any incorrect bill of costs as charged and made out by a clerk.

HISTORY: Codes, 1857, ch. 8, art. 10; 1880, § 2393; 1892, § 898; 1906, § 975; Hemingway’s 1917, § 684; 1930, § 691; 1942, § 1602.

§ 11-53-79. Table of fees to be posted conspicuously.

It shall be the duty of the clerks of the circuit and chancery courts, and of the sheriff, to post in a conspicuous place in his office, and each justice of the peace at his place of holding court, a copy of the bill of fees which he is entitled to receive, and on failure to do so he shall not be entitled to receive or collect any fee for any service rendered during the time of such failure.

HISTORY: Codes, 1857, ch. 8, art. 11; 1880, § 2394; 1892, § 899; 1906, § 976; Hemingway’s 1917, § 685; 1930, § 692; 1942, § 1603.

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 —

Fees chargeable by chancery court clerks, see §25-7-9.

Fees chargeable by circuit court clerks, see §25-7-13.

Fees chargeable by sheriffs, see §25-7-19.

Fees chargeable by justices of the peaces, see §25-7-25.

§ 11-53-81. Recovery of attorney’s fees in suit on open account.

When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff. Evidence of receipt of written demand by the spouse of the debtor when they are living together as husband and wife on behalf of the debtor may be introduced as evidence of written demand on the debtor. If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney’s fees to be set by the judge.

If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor, and if the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.

HISTORY: Laws, 1980, ch 443, eff from and after July 1, 1980.

Cross References —

Office confession of judgment on debt, see §11-7-181.

When statute of limitation commences to run on open account, see §§15-1-21 and15-1-31.

JUDICIAL DECISIONS

1. In general.

2. “Prevailing plaintiff.”

3. Counterclaims.

4. Difference between demand letter and complaint.

1. In general.

Equipment rental company could not recover attorney’s fees under the open account statute because no underlying contract existed between the company and a subcontractor. M & R Builders, LLC v. Williams Equip. & Supply Co., — So.3d —, 2019 Miss. App. LEXIS 393 (Miss. Ct. App. Aug. 13, 2019).

Because the principal of a health care provider was not personally liable under Mississippi’s open-account statute on the claims brought against the health care provider and the principal by a medical supply business, the principal was entitled to an attorney fees. Patton Med. of Gulf Coast, Inc. v. Relle, 269 So.3d 266, 2018 Miss. App. LEXIS 156 (Miss. Ct. App. 2018).

Company was awarded one-half of the attorney’s fees and expenses awarded to it by the circuit court because it was reasonable to award a company its attorney’s fees for post-judgment collection efforts that resulted in garnishments; the company’s attorney’s fees in defending the appeal would be proper under the open account statute. Knights Marine & Indus. Servs. v. Gulfstream Enters., 216 So.3d 1164, 2017 Miss. App. LEXIS 207 (Miss. Ct. App. 2017).

In a company’s action under the open account statute, the county court’s denial of punitive damages was proper because the trier of fact could easily have found that a contractor did not act with a sufficient level of malice to warrant them; the record indicated that the contractor attempted to negotiate a settlement with the company and was nearly successful. Knights Marine & Indus. Servs. v. Gulfstream Enters., 216 So.3d 1164, 2017 Miss. App. LEXIS 207 (Miss. Ct. App. 2017).

County court properly awarded pre-judgment interest to a company because the company and a contractor were operating under an open account, a type of unwritten contract, and thus, the company had to be granted pre-judgment interest if the contractor’s debt was liquidated; however, the county court erred in determining the date pre-judgment interest began, and it should have calculated pre-judgment interest from the date the breach occurred. Knights Marine & Indus. Servs. v. Gulfstream Enters., 216 So.3d 1164, 2017 Miss. App. LEXIS 207 (Miss. Ct. App. 2017).

County court did not abuse its discretion in awarding a company compensatory damages in its action under the open account statute alleging a contractor failed to pay the balance owed to the company for providing a crew-transport vessel with a captain and crew because the company presented substantial evidence that it was hired to provide a vessel whether work was performed or not. Knights Marine & Indus. Servs. v. Gulfstream Enters., 216 So.3d 1164, 2017 Miss. App. LEXIS 207 (Miss. Ct. App. 2017).

Miss. Code Ann. §11-53-81 does not mandate that a demand letter and a complaint list the same amount; rather, just a correct amount is required. Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So. 2d 974, 2007 Miss. App. LEXIS 771 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 341 (Miss. 2008).

Because a contractor ratified the course of conduct by paying on account for items purchased from a supply company on delivery tickets that were not signed by himself or his employees, the defense with without merit under Miss. Code Ann. §75-2-204(1); because the record contained overwhelming evidence of an obligation owed by the contractor to the supply company for goods delivered on signed and unsigned delivery tickets, entry of judgment notwithstanding the verdict in favor of the supply company was proper, but there was evidence to suggest that mistakes in the invoices were made, and a new trial on the issue of damages alone was ordered. Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 358, 2007 Miss. LEXIS 512 (Miss. 2007).

Attorney fees are not available under Miss. Code Ann. §11-53-81 when the claim is based on contract, and therefore in a case that originally sought to recover on an open account, there was no entitlement to attorney fees under §11-53-81 because this issue was resolved in a pretrial motion to dismiss and/or summary judgment; thereafter, the claims proceeded on contract. H & E Equip. Servs., LLC v. Floyd, 959 So. 2d 578, 2007 Miss. App. LEXIS 428 (Miss. Ct. App. 2007).

Court of appeals erred in reversing a jury’s finding in favor of a contractor in an open account case filed by an electrical equipment supplier and granting a JNOV to the supplier; the contractor’s defense was that the invoices were, inter alia, inaccurate and that overbilling was commonplace and the fact that the supplier had already credited the contractor $19,025 due to billing errors and fired one of its employees because of the errors, carried weight with the jury. Natchez Elec. & Supply Co. v. Johnson, 2007 Miss. LEXIS 20 (Miss. Jan. 18, 2007).

In a dispute over the sale of certain tractors, the lower court ruled that it was an action on an open account, but despite some apparent past dealings between the parties, nothing in the record indicated that the transaction was predicated upon defendant’s credit or an advance agreement to allow purchases on credit. The action was more properly characterized as an action in contract and the trial court’s ruling and the judgment regarding attorney’s fees were in error; a new trial was necessary to determine the terms of the contract, whether the parties mutually assented to the terms of the contract, and whether there was a breach of the contract. Mauldin Co. v. Lee Tractor Co., 920 So. 2d 513, 2006 Miss. App. LEXIS 73 (Miss. Ct. App. 2006).

Circuit court did not err in awarding attorney fees to plaintiff who prevailed in the action for an open account and established evidence of reasonable attorney fees. Prime Rx, LLC v. McKendree, Inc., 917 So. 2d 791, 2005 Miss. LEXIS 671 (Miss. 2005).

There was nothing to warrant a departure from the rule that accounts established by medical providers for services provided to their patients were open accounts within the purview of Miss. Code Ann. §11-53-81, and attorney fees were allowable; moreover, pursuant to the default judgments, res judicata was applicable with regard to the questions regarding the open account procedure because the debtors did not allege they were improperly served or that jurisdiction was improper in the justice court, and they did not dispute that the debt was actually owed. Franklin Collection Serv. v. Stewart, 863 So. 2d 925, 2003 Miss. LEXIS 870 (Miss. 2003).

An award of attorney’s fees was appropriate under §11-53-81 where the debtor did not satisfy its account in full with the creditor before the action on open account was heard on its merits by the trial court, the debtor did not pay the creditor the amount of accrued interest it owed despite notice from the creditor that it had not paid the full amount owed, and the creditor received a judgment against the debtor for the amount of its claim against the debtor that had yet to be satisfied. Dynasteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977, 1992 Miss. LEXIS 828 (Miss. 1992).

Plaintiff is not entitled to attorneys’ fees under §11-53-81 where its claim against defendant is based on contract rather than open account. C.R. Daniels, Inc. v. Yazoo Mfg. Co., 641 F. Supp. 205, 1986 U.S. Dist. LEXIS 23550 (S.D. Miss. 1986).

Claimant under contractor’s bond is not entitled to attorney’s fees, notwithstanding that claimant might be entitled to such fees under §11-53-81 in action on open account against defaulting contractor, since claimant on contract surety bond is not entitled to recover attorney’s fees unless statute or contract with surety so requires, and in instant case surety’s bond does not require payment of attorney’s fees and no such payment is required by §85-7-185, which governs instant bond pertaining to contract between private parties. Kimberly-Clark Corp. v. Alpha Bldg. Co., 591 F. Supp. 198, 1984 U.S. Dist. LEXIS 15922 (N.D. Miss. 1984).

In an action by a creditor on an open account, the creditor was not a prevailing party within the meaning of §11-53-81, and therefore could not recover attorney’s fees under the statute, where it recovered no more than the debtor had unqualifiedly offered to pay without suit. Also, the debtor was not a prevailing party within the meaning of the statute even though it conceded prior to and during trial that it owed the sum actually recovered by the creditor where it made no efforts to either pay the sum, tender it into court, or make an offer of judgment under Rule 68, Miss. R. Civ. P. Rainbow Rental & Fishing Tools, Inc. v. Delta Underground Storage, Inc., 542 So. 2d 258, 1989 Miss. LEXIS 189 (Miss. 1989).

Judgment must be rendered in favor of defendant and against plaintiff to constitute defendant as prevailing party entitled to award of attorney fees under §11-53-81. Hughes Equipment Co. v. Fife, 482 So. 2d 1144, 1986 Miss. LEXIS 2360 (Miss. 1986).

Attorney fees are not available under §11-53-81 unless written demand is made upon debtor by means of demand letter 30 days prior to filing suit; notice and demand in form of complaint or lawsuit does not suffice. Putt v. Ray Sewell Co., 481 So. 2d 785, 1985 Miss. LEXIS 2429 (Miss. 1985).

Claim by subcontractor against prime contractor based upon work for which no agreement has been made in advance as to price does not qualify as open account upon which attorney fees and prejudgment interest might be based. Stanton & Associates, Inc. v. Bryant Constr. Co., 464 So. 2d 499, 1985 Miss. LEXIS 1916 (Miss. 1985).

Attorney fees were not recoverable under §11-53-81, where an account was paid in full before trial and no judgment was ever rendered on the once-delinquent account. Magnolia Farm Services, Inc. v. Tunica Oil Co., 438 So. 2d 285, 1983 Miss. LEXIS 2927 (Miss. 1983).

2. “Prevailing plaintiff.”

Attorney was not entitled to the costs of collection under Miss. Code Ann. §11-53-81 because the judgment was partially in favor of both parties, and the attorney was not entitled to attorney’s fees for collecting the debt. Barnes, Broom, Dallas & McLeod, PLLC v. Estate of Cappaert, 991 So. 2d 1209, 2008 Miss. LEXIS 499 (Miss. 2008).

Award of attorney fees was not proper because both parties partially prevailed in the case. Thus, neither party was a “prevailing plaintiff” within the meaning of Miss. Code Ann. §11-53-81. Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 444, 2006 Miss. App. LEXIS 118 (Miss. Ct. App. 2006), rev'd, 2007 Miss. LEXIS 20 (Miss. Jan. 18, 2007).

3. Counterclaims.

Where the defendant prevailed on the plaintiff’s claims and where a judgment was rendered in favor of the defendant on its counterclaim for a debt on an open account after a demand for payment was made prior to filing its counterclaim, the defendant was the prevailing party and attorney fees were properly awarded. Par Indus. v. Target Container Co., 708 So. 2d 44, 1998 Miss. LEXIS 41 (Miss. 1998).

4. Difference between demand letter and complaint.

Creditor complied with Miss. Code Ann. §11-53-81, even though a different amount was stated in a demand letter and a complaint; although a strict construction of §11-53-81 was required, there was nothing mandating that the same amount be stated in both, so long as the correct amount was set forth. This was in conformity with case law from Louisiana relating to La. Rev. Stat. Ann. § 9:2781, which was considered persuasive authority. Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So. 2d 974, 2007 Miss. App. LEXIS 771 (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 341 (Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Section 11-53-81 provides for reasonable attorneys fees to be awarded in the discretion of the judge. Also attorneys fees may be provided for by contract. Peterson, October 11, 1996, A.G. Op. #96-0698.

RESEARCH REFERENCES

ALR.

Amount of attorneys’ fees in matters involving commercial and general business activities. 58 A.L.R.3d 1327.

Factors or conditions in employment discrimination cases said to justify increase in attorney’s fees awarded under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)). 140 A.L.R. Fed. 301.

Am. Jur.

1 Am. Jur. 2d (Rev), Accounts and Accounting §§ 8-20.

Complaint for balance due on open account, 1 Am. Jur. Pl & Pr Forms (Rev), Accounts and Accounting, Forms 21, 23, 25, 26.

Demand for payment of account, 1 Am. Jur. Legal Forms 2d, Accounts and Accounting § 6:13.

CJS.

1 C.J.S., Accounts, Actions on §§ 2-32.

Law Reviews.

1983 Mississippi Supreme Court Review: Attorneys’ fee in suit on open account. 54 Miss L. J. 103, March, 1984.

Dunn, Construction Contract Claims and Litigation – Suits on Public Bonds and Suits on Private Bonds. 55 Miss. L. J. 431, September 1985.

Chapter 55. Litigation Accountability Act of 1988

§ 11-55-1. Title.

This chapter may be cited as the “Litigation Accountability Act of 1988.”

HISTORY: Laws, 1988, ch. 495, § 1, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

JUDICIAL DECISIONS

1. In general.

2. Paternity.

3. Wills.

1. In general.

Although defendant bore the burden of designating those parts of the record necessary for the appeal, defendant designated no transcript, and no testimony of the trial was made a part of the record. The record contained insufficient evidence to analyze defendant’s argument the trial court should have granted his motion for sanctions. Hampton v. Blackmon, 145 So.3d 632, 2014 Miss. LEXIS 309 (Miss. 2014).

Mississippi Supreme Court considered and ruled upon the issues of personal jurisdiction and sufficient service of process such that the Tennessee courts found that the Mississippi circuit court had subject matter jurisdiction to award appellee attorney’s fees and expenses against the Tennessee attorney under Miss. Code Ann. §11-55-1; the attorney’s appeal was barred under res judicata and the enrollment of the Mississippi judgment against the attorney was affirmed and the Mississippi judgments afforded full faith and credit in Tennessee. First State Bank v. Wyssbrod, 124 S.W.3d 566, 2003 Tenn. App. LEXIS 511 (Tenn. Ct. App. 2003).

Litigation Accountability Act of 1988, Miss. Code Ann. §§11-55-1 through11-55-15 (2002), allows only a court, not an administrative board, to award attorneys’ fees. Miss. Empl. Sec. Comm'n v. Culbertson, 832 So. 2d 519, 2002 Miss. LEXIS 409 (Miss. 2002).

State employer’s failure to follow state personnel board rules regarding promotions entitled employees to promotions and back pay; but only the reviewing court, not the Employee Appeals Board, had the authority to award the employees their attorneys’ fees. Miss. Empl. Sec. Comm'n v. Culbertson, 832 So. 2d 519, 2002 Miss. LEXIS 409 (Miss. 2002).

Grandson’s claim that his uncle should be required to return the proceeds of three certificates of deposit his grandmother had obtained in her name and the uncle’s name, jointly, to the grandmother’s estate, because of the uncle’s undue influence over the grandmother, without offering any proof of a confidential relationship between the uncle and the grandmother, subjected the grandson, and his attorney, to the assessment of the uncle’s attorney’s fees and costs. Foster v. Ross, 804 So. 2d 1018, 2002 Miss. LEXIS 14 (Miss. 2002).

The adoption of Rule 11, Miss. R. Civ. Proc., which provides for sanctions for the filing of a motion or pleading which is frivolous or was filed for the purpose of harassment or delay, did not render void the Mississippi Litigation Accountability Act of 1988 (§§11-55-1 et seq.), which provides for sanctions for the bringing of an action or the assertion of a claim or defense which is without substantial justification or was interposed for delay or harassment, since there is no apparent conflict between the plain language of the statutes and the rule. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

2. Paternity.

Refusal to award attorney’s fees to the mother in a child custody action was proper pursuant to the Mississippi Litigation Accountability Act, Miss. Rev. Code §11-55-1 et seq., because the father’s claim for custody was not frivolous. He was and remained the legal father of the children because the parties voluntarily signed an acknowledgment of paternity knowing that the father was not the biological father of the children. Adcock v. Van Norman, 918 So. 2d 747, 2005 Miss. App. LEXIS 208 (Miss. Ct. App.), aff'd in part and rev'd in part, 917 So. 2d 86, 2005 Miss. LEXIS 830 (Miss. 2005).

3. Wills.

Chancellor abused her discretion in failing to award sanctions because a stepson withheld the existence of a handwritten document stating, among other things, the testator’s intention to revoke all prior wills, the stepson had no hope of rebutting the presumption that the will had been lost and not destroyed, the nondisclosure made his petition to probate a will frivolous, and the son incurred unnecessary expense in contesting the probate of the will. Pannagl v. Lambert (In re Estate of Pannagl), 166 So.3d 39, 2014 Miss. App. LEXIS 627 (Miss. Ct. App. 2014), cert. denied, 166 So.3d 38, 2015 Miss. LEXIS 336 (Miss. 2015).

RESEARCH REFERENCES

ALR.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

When statute of limitations begins to run upon action against attorney for legal malpractice – deliberate wrongful acts or omissions. 67 A.L.R.5th 587.

Law Reviews.

Robertson, Discovering Rule 11 of the Mississippi Rules of Civil Procedure. 8 Miss. C. L. Rev. 111, Spring, 1988.

§ 11-55-3. Definitions.

The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:

“Without substantial justification,” when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that it is frivolous, groundless in fact or in law, or vexatious, as determined by the court.

“Person” means any individual, corporation, company, association, firm, partnership, society, joint stock company or any other entity, including any governmental entity or unincorporated association of persons.

“Action” means a civil action that contains one or more claims for relief, defense or an appeal of such civil action. For the purposes of this chapter only, an “action” also means any separate count, claim, defense or request for relief contained in any such civil action.

HISTORY: Laws, 1988, ch. 495, § 2, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

JUDICIAL DECISIONS

1. In general.

2. “Frivolous.”

1. In general.

Judge did not abuse her discretion in sanctioning an attorney and his client because a standing order merely implemented Miss. Unif. Ch. Ct. R. 1.06(C), which authorized the opponent’s Miss. R. Civ. P 81(d) summons; thus, the attorney’s motion to quash and request for sanctions against the opponent had no hope for success. Garner v. Smith, 277 So.3d 536, 2019 Miss. LEXIS 241 (Miss. 2019).

Evidence supported the chancellor’s findings that the claims concerning the dissemination of the daughter’s medical records and custody claims were without substantial justification; therefore, the attorney was liable for sanctions under the Litigation Accountability Act, Miss. Code Ann. §11-55-1 et seq. In re Spencer, 985 So. 2d 330, 2008 Miss. LEXIS 327 (Miss.), cert. denied, 555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 U.S. LEXIS 8600 (U.S. 2008).

Where a party in a divorce proceeding had substantial justification in presenting a motion for modification, the chancellor erred in imposing sanctions upon his attorney. Norton v. Norton, 742 So. 2d 126, 1999 Miss. LEXIS 188 (Miss. 1999).

A chancellor erred in assessing sanctions against a plaintiff and his attorney based upon a finding that they had brought their action for trespass to real property “without substantial justification” since it could not be said that they had “no hope of success,” even though the action was effectively barred by a judgment in a separate action declaring the plaintiff to have no legally cognizable interest in the subject property, where the plaintiff and his attorney had “hope,” which proved to be well-founded, that the Supreme Court would remove the bar by reversing the prior judgment, the plaintiff’s claim was clearly not “groundless in fact or in law” as he would be entitled to prevail if the allegations in his complaint were proven, and there was no allegation that the action was filed for purposes of vexation. Smith v. Malouf, 597 So. 2d 1299, 1992 Miss. LEXIS 216 (Miss. 1992).

2. “Frivolous.”

Under Miss. Code Ann. §11-55-7(a)-(b), although a former professor had no hope of success on his negligence-based claims against university staff who were immune under Miss. Code Ann. §11-46-7(2), they were not entitled to fees incurred defending against those claims after the professor conceded them in his responses to summary judgment motions. Payne v. Univ. of S. Miss., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 73028 (S.D. Miss. June 5, 2015), aff'd, 681 Fed. Appx. 384, 2017 U.S. App. LEXIS 4495 (5th Cir. Miss. 2017).

Chancellor did not abuse his discretion in finding that a pipeline services company had acted in bad faith by attaching an irrelevant purchase order, which had not been signed by a vendor, to its complaint as the basis for a preliminary injunction. Moreover, the chancellor found that, based on the complaint as pleaded by the company, it was apparent that the company was not entitled to the relief it requested, an injunction, as its application for a preliminary injunction was frivolous. Expro Ams., LLC v. Walters, 179 So.3d 1010, 2015 Miss. LEXIS 574 (Miss. 2015).

Circuit court abused its discretion in awarding sanctions based on a daughter’s untimely filing because the daughter’s attempt to avoid dismissal by asserting the discovery rule was not sanctionable under the Mississippi Litigation Accountability Act; because the application of the discovery rule was a fact-intensive process, the daughter’s discovery-rule argument, objectively speaking, was not frivolous. Waldrup v. Eads, 180 So.3d 820, 2015 Miss. App. LEXIS 635 (Miss. Ct. App. 2015).

Quiet title action based on adverse possession was a frivolous suit because plaintiff and his counsel knew before filing suit that no patent had been issued by the United States releasing the particular parcel from the public domain and that based on the language of 28 U.S.C.S. § 2409a. suit could not be brought against the United States under an adverse possession theory. Sullivan v. Maddox, 122 So.3d 75, 2013 Miss. App. LEXIS 26 (Miss. Ct. App.), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 453 (Miss. 2013).

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).

Father’s appeal of a chancellor’s denial of the father’s recusal motion was frivolous and thus without substantial justification because the chancellor had recused himself long before the appeal, and the father was aware of the recusal. Balius v. Gaines, 95 So.3d 730, 2012 Miss. App. LEXIS 488 (Miss. Ct. App. 2012).

Chancellor’s decision not to award attorney’s fees to the landowner was not an abuse of discretion where there was no evidence that the county filed the title claim in bad faith or without justification; to the contrary, the county presented ample evidence to support its claim. Knight v. Covington County, 27 So.3d 1163, 2009 Miss. App. LEXIS 216 (Miss. Ct. App. 2009), cert. dismissed, 2010 Miss. LEXIS 76 (Miss. Feb. 18, 2010).

Because a father was aware of a son’s statute of limitation’s defense and the father proceeded with his action on a promissory note even though he had no hope of success, a trial court did not abuse its discretion in determining that the suit was frivolous and without substantial justification under Miss. Code Ann. §§11-55-5(1) and11-55-3(a). Accordingly, the trial court could impose sanctions in the form of attorneys’ fees and expenses against the father. Merideth v. Merideth, 987 So. 2d 477, 2008 Miss. App. LEXIS 393 (Miss. Ct. App. 2008).

Sanctions against plaintiffs were not warranted where, based on the background of the case and including its long history of transfers and the period of time allowed by the multi-district court for discovery, plaintiffs did not delay the litigation for the purpose of harassment; the grounds for the dismissal of claims were based on a recent clarification of the law in Mississippi regarding joinder pursuant to Miss. R. Civ. P. 20. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis & Dove, 965 So. 2d 1041, 2007 Miss. LEXIS 557 (Miss. 2007).

Where a chancery court had already issued an order regarding the disposition of insurance funds, a subsequent lawsuit over the same issue involving the same parties was barred by the doctrine of collateral estoppel; since a subsequent claim arising from the same issue had no hope of success, sanctions were properly awarded. Richardson v. Audubon Ins. Co., 948 So. 2d 445, 2006 Miss. App. LEXIS 712 (Miss. Ct. App. 2006).

Appellate court affirmed a grant of summary judgment in favor of defendants as plaintiff had admitted it had no contract with a group of property owners to auction their property, but defendants’ request for attorney fees under Miss. Code Ann. §11-55-5(1) was denied as the court could not state that plaintiff’s claim was substantially without justification as defined by Miss. Code Ann. §11-55-3. John Mozingo Real Estate & Auction, Inc. v. Nat'l Auction Group, Inc., 925 So. 2d 141, 2006 Miss. App. LEXIS 201 (Miss. Ct. App. 2006).

Refusal to award attorney’s fees to the mother in a child custody action was proper pursuant to the Mississippi Litigation Accountability Act, Miss. Code Ann. §11-55-1 et seq., because the father’s claim for custody was not frivolous pursuant to Miss. Rev. Code §§11-55-5(1) and11-55-3(a). He was and remained the legal father of the children because the parties voluntarily signed an acknowledgment of paternity knowing that the father was not the biological father of the children. Adcock v. Van Norman, 918 So. 2d 747, 2005 Miss. App. LEXIS 208 (Miss. Ct. App.), aff'd in part and rev'd in part, 917 So. 2d 86, 2005 Miss. LEXIS 830 (Miss. 2005).

RESEARCH REFERENCES

ALR.

Institution of confessed judgment proceedings as ground of action for abuse of process or malicious prosecution. 87 A.L.R.3d 554.

Civil liability of attorney for abuse of process. 97 A.L.R.3d 688.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

§ 11-55-5. Assessment of attorney fees and costs against attorney or party for meritless action, claim or defense, unwarranted delay, or unnecessary proceedings.

  1. Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
  2. No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense.
  3. When a court determines reasonable attorney’s fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.
  4. No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney’s fees unless the court finds that the party clearly knew or reasonably should have known that such party’s action, claim or defense or any part of it was without substantial justification.

HISTORY: Laws, 1988, ch. 495, § 3, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

JUDICIAL DECISIONS

1. In general.

2. Attorneys’ fees awarded excessive.

3. Payment of attorneys’ fees awarded.

4. Attorneys’ fees awarded not excessive.

5. Payment of attorneys’ fees denied.

1. In general.

Because the circuit court failed to make any of the required findings as to the appropriateness of an award of attorney’s fees, the circuit court abused its discretion. Wirtz v. Adams Cty. Bd. of Supervisors, 278 So.3d 1170, 2019 Miss. App. LEXIS 156 (Miss. Ct. App. 2019).

Judge did not abuse her discretion in sanctioning an attorney and his client because a standing order merely implemented Miss. Unif. Ch. Ct. R. 1.06(C), which authorized the opponent’s Miss. R. Civ. P 81(d) summons; thus, the attorney’s motion to quash and request for sanctions against the opponent had no hope for success. Garner v. Smith, 277 So.3d 536, 2019 Miss. LEXIS 241 (Miss. 2019).

It was error to award a town and school district attorney’s fees because the court did not consider required statutory factors. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

“Judgment for Defendant” contained in the record was a sufficient final judgment for appellate review of the trial court’s award of attorney’s fees and expenses to a patient under the Litigation Accountability Act because although a separate order granting the doctor’s voluntary dismissal did not appear in the appellate record, the “Judgment for Defendant” was clearly predicated upon such a dismissal. Monaghan v. Autry, 229 So.3d 201, 2017 Miss. App. LEXIS 155 (Miss. Ct. App. 2017).

Mortgage company owed appellee association dues, and appellant owed the company rent, and he agreed to pay the dues in lieu of some of his rent; appellant lived in the condominium and enjoyed the services provided by appellee, but neither appellant nor the mortgage company paid the association dues, and appellee’s claim to be a third-party beneficiary was hardly frivolous for sanction purposes. Russell v. Beachwalk Condominums Ass'n, 193 So.3d 657, 2016 Miss. App. LEXIS 311 (Miss. Ct. App. 2016).

Trial court specifically addressed and rejected appellant’s requests for sanctions on the merits of his claims, and there was no merit to his argument that the trial court employed the wrong legal standard in denying sanctions. Russell v. Beachwalk Condominums Ass'n, 193 So.3d 657, 2016 Miss. App. LEXIS 311 (Miss. Ct. App. 2016).

Any failure of the trial court to specifically address potential sanctions claims stemmed from the lack of specificity in appellant’s motion, which lacked a clear statement of the issues presented; the trial court addressed the contentions that were presented in detail, and the court would not hold the trial court in error for other matters not properly presented by appellant. Russell v. Beachwalk Condominums Ass'n, 193 So.3d 657, 2016 Miss. App. LEXIS 311 (Miss. Ct. App. 2016).

Appellant argued that appellee lacked authority or standing to sue, but these arguments were all premised on the unsupported assertion that appellant was a lawful tenant when appellee filed suit; there was some evidence in the record suggesting the potential for a factual dispute, and the denial of sanctions was proper. Russell v. Beachwalk Condominums Ass'n, 193 So.3d 657, 2016 Miss. App. LEXIS 311 (Miss. Ct. App. 2016).

Trial court did not err in not considering all of appellant’s claims for sanctions on their own individual merits because appellant’s contentions were not distinctly identified in the statement of issues or separately and distinctly argued and were therefore procedurally barred. Russell v. Beachwalk Condominums Ass'n, 193 So.3d 657, 2016 Miss. App. LEXIS 311 (Miss. Ct. App. 2016).

Circuit court abused its discretion in awarding sanctions based on a daughter’s untimely filing because the daughter’s attempt to avoid dismissal by asserting the discovery rule was not sanctionable under the Mississippi Litigation Accountability Act; because the application of the discovery rule was a fact-intensive process, the daughter’s discovery-rule argument, objectively speaking, was not frivolous. Waldrup v. Eads, 180 So.3d 820, 2015 Miss. App. LEXIS 635 (Miss. Ct. App. 2015).

Chancery court did not abuse its discretion in denying a husband’s motion to alter or amend the award of sanctions because the husband’s motion for recusal was without substantial justification; sanctions were awarded because the husband admitted that allegations in his first motion to recuse and attached affidavit were false or beyond his knowledge. Boatwright v. Boatwright, 184 So.3d 952, 2015 Miss. App. LEXIS 351 (Miss. Ct. App. 2015), cert. denied, 185 So.3d 385, 2016 Miss. LEXIS 72 (Miss. 2016), cert. denied, 185 So.3d 385, 2016 Miss. LEXIS 73 (Miss. 2016), cert. denied, 185 So.3d 385, 2016 Miss. LEXIS 74 (Miss. 2016).

In conformity with the plain meaning of the Mississippi Litigation Accountability Act, the imposition of attorney’s fees as sanctions for frivolous removal is within the powers of Mississippi courts; federal court does not provide the exclusive remedy for attorney’s fees incurred as a result of frivolous removals. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Statute contains no express language which prohibits a judge’s imposition of attorney’s fees for frivolous removals to federal court; insofar as a party must file a notice of removal in state court in order to remove the case to federal court, and assuming the removal to have been frivolous, this would fall squarely within the parameters of the statute. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Husband’s claim that the chancery court should have sanctioned his wife under the Litigation Accountability Act was procedurally barred because the husband never raised it before the chancery court. Pierce v. Pierce, 132 So.3d 553, 2014 Miss. LEXIS 122 (Miss. 2014).

Trial court did not err in ordering sanctions in a citizen’s action against a city, a municipal court, and a municipal court judge pursuant to the Mississippi Litigation Accountability Act and Miss. R. Civ. P. 11(b) because the record clearly supported a finding that the citizen pursued a frivolous collateral action in trial court and that the sanctions were appropriate; in granting sanctions of attorney fees against the citizen pursuant to the factors set out in the Litigation Accountability Act, Miss. Code Ann. §11-55-7, and Rule 11(b), the trial court found that the action was a frivolous action filed without substantial notification in order to harass the city, municipal court, and municipal court judge. Prewitt v. City of Oxford, 44 So.3d 922, 2010 Miss. LEXIS 184 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 274 (Miss. June 3, 2010), cert. denied, 562 U.S. 893, 131 S. Ct. 294, 178 L. Ed. 2d 142, 2010 U.S. LEXIS 6224 (U.S. 2010).

Violations under the Litigation Accountability Act, Miss. Code Ann. §11-55-5(1) had to be brought in motion form; thus, the Legislature did not create a separate cause of action by virtue of Miss. R. Civ. P. 11, and the doctor’s claim against the attorney was properly dismissed; the attorney did not act in manner that was improper or would warrant sanctions. Rose v. Tullos, 994 So. 2d 734, 2008 Miss. LEXIS 573 (Miss. 2008).

Chancellor committed plain error and therefore abused her discretion by awarding a judgment of fees and expenses greater than that supported by the record; there was nothing in the Litigation Accountability Act (Act) or Miss. R. Civ. P. 11 which supported awarding attorneys’ fees and expenses in excess of those actually incurred as both the Act and the Rule allowed only for the recovery of “reasonable” fees and costs; the punitive functions of both the Act and the Rule were served by simply awarding reasonable attorneys’ fees and costs, not an amount in excess of them. In re Spencer, 2008 Miss. LEXIS 126 (Miss. Feb. 28, 2008).

Sanctions against plaintiffs were not warranted where, based on the background of the case and including its long history of transfers and the period of time allowed by the multi-district court for discovery, plaintiffs did not delay the litigation for the purpose of harassment; the grounds for the dismissal of claims were based on a recent clarification of the law in Mississippi regarding joinder pursuant to Miss. R. Civ. P. 20. Choctaw, Inc. v. Campbell-Cherry-Harrison-Davis & Dove, 965 So. 2d 1041, 2007 Miss. LEXIS 557 (Miss. 2007).

Trial court had the authority to award the employees attorney fees pursuant to the Litigation Accountability Act of 1988 after they established that the State personnel agency passed them over for promotions they would have received had the State personnel followed its manual of policies, procedures, and rules in awarding promotions and not engaged in favoritism or bias in filling its own employment openings. Miss. Empl. Sec. Comm'n v. Culbertson, 2002 Miss. LEXIS 48 (Miss. Feb. 21, 2002), op. withdrawn, sub. op., 2002 Miss. LEXIS 428 (Miss. Dec. 12, 2002).

Trial court improperly awarded sanctions against the Mississippi Department of Human Services in a suit that sought to establish that a divorce decree that did not include a child support award was either void or insufficiently supported; neither argument was necessarily frivolous, and the trial court failed to set forth its reasons for awarding sanctions. Miss. Dep't of Human Servs. v. Shelby, 2001 Miss. LEXIS 209 (Miss. Aug. 23, 2001), op. withdrawn, sub. op., 802 So. 2d 89, 2001 Miss. LEXIS 326 (Miss. 2001).

Although third trial resulted in directed verdict for insured, there was no evidence that insurer had prolonged the proceedings, as required to support insured’s claim for attorney fees; insurer won both times that case was submitted to jury. Allstate Ins. Co. v. McGory, 697 So. 2d 1171, 1997 Miss. LEXIS 303 (Miss. 1997).

In determining whether claim is frivolous for purposes of Litigation Accountability Act, warranting award of attorney fees, court looks to definition of “frivolous” found in Miss. R. Civ. P. 11. Scruggs v. Saterfiel, 693 So. 2d 924, 1997 Miss. LEXIS 166 (Miss. 1997).

In reviewing decision regarding the imposition of sanctions pursuant to Litigation Accountability Act, appellate court is limited to consideration of whether trial court abused its discretion. Scruggs v. Saterfiel, 693 So. 2d 924, 1997 Miss. LEXIS 166 (Miss. 1997).

Unsuccessful action in which child and aunt acting as child’s guardian sought to obtain visitation with child’s half brother, who was living with his father, was not frivolous for purposes of Litigation Accountability Act, and thus did not warrant attorney fee award; objectively speaking, it could not be said that motion, which concerned issue of first impression in state, was without hope of success. Scruggs v. Saterfiel, 693 So. 2d 924, 1997 Miss. LEXIS 166 (Miss. 1997).

In buyer’s breach of contract action, in which contract itself did not provide for recovery of attorney fees, trial court was justified in refusing to require seller to pay buyer’s attorney fees under Litigation Accountability Act; seller mounted articulate, cogent defense as to whether it was liable for cost of cover, and seller had already been required to pay buyer attorney fees incurred in bankruptcy proceeding in which seller sought to forestall instant litigation. Terex Corp. v. Ingalls Shipbuilding, 671 So. 2d 1316, 1996 Miss. LEXIS 129 (Miss. 1996).

An award of attorney’s fees and costs against a will contestant pursuant to Rule 11, Miss. R. Civ. P. and the Litigation Accountability Act would be reversed where there was a presumption of undue influence by the testator’s daughter and suspicious circumstances surrounding the execution of the will, which justified the filing of the complaint and gave the contestant some “hope of success.” Pallatin v. Jones (In re Will of Fankboner), 638 So. 2d 493, 1994 Miss. LEXIS 314 (Miss. 1994).

The adoption of Rule 11, Miss. R. Civ. Proc., which provides for sanctions for the filing of a motion or pleading which is frivolous or was filed for the purpose of harassment or delay, did not render void the Mississippi Litigation Accountability Act of 1988 (§§11-55-1 et seq.), which provides for sanctions for the bringing of an action or the assertion of a claim or defense which is without substantial justification or was interposed for delay or harassment, since there is no apparent conflict between the plain language of the statutes and the rule. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

By stating that the court shall specifically set forth the reasons for awarding attorney’s fees and costs and enumerating factors to be considered by the court when making such an award, §11-55-7 augments Rule 11, Miss. R. Civ. Proc., which provides for sanctions for the filing of a motion or pleading which is frivolous or was filed for the purpose of harassment or delay, and §11-55-5, which provides for sanctions for the bringing of an action or the assertion of a claim or defense which is without substantial justification or was interposed for delay or harassment. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

A petitioner’s action for a writ of mandamus compelling a county board of education to adopt a resolution requesting the board of supervisors to create single member districts was not without substantial justification, and therefore the trial court did not err in declining to award attorney’s fees to the school board under the Litigation Accountability Act (§§11-55-1 et seq.), even though the petitioner did not make an effort to dismiss the action when he learned that his claim was moot though the board of education suggested that he do so, where there was no evidence that the action was prosecuted in bad faith or for an improper purpose, there were no issues of fact determinative of the validity of the claim in conflict at the time of the first hearing, and there was no prevailing party since the petitioner’s claim became moot via action of the school board following the first hearing. Jackson County School Bd. v. Osborn, 605 So. 2d 731, 1992 Miss. LEXIS 313 (Miss. 1992).

A chancellor erred in assessing sanctions against a plaintiff and his attorney based upon a finding that they had brought their action for trespass to real property “without substantial justification” since it could not be said that they had “no hope of success,” even though the action was effectively barred by a judgment in a separate action declaring the plaintiff to have no legally cognizable interest in the subject property, where the plaintiff and his attorney had “hope,” which proved to be well-founded, that the Supreme Court would remove the bar by reversing the prior judgment, the plaintiff’s claim was clearly not “groundless in fact or in law” as he would be entitled to prevail if the allegations in his complaint were proven, and there was no allegation that the action was filed for purposes of vexation. Smith v. Malouf, 597 So. 2d 1299, 1992 Miss. LEXIS 216 (Miss. 1992).

2. Attorneys’ fees awarded excessive.

Under Miss. Code Ann. §11-55-7(a)-(b), although a former professor had no hope of success on his negligence-based claims against university staff who were immune under Miss. Code Ann. §11-46-7(2), they were not entitled to fees incurred defending against those claims after the professor conceded them in his responses to summary judgment motions. Payne v. Univ. of S. Miss., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 73028 (S.D. Miss. June 5, 2015), aff'd, 681 Fed. Appx. 384, 2017 U.S. App. LEXIS 4495 (5th Cir. Miss. 2017).

Chancellor abused her discretion by awarding a judgment of fees and expenses greater than that supported by the record as there was nothing in the Litigation Accountability Act, Miss. Code Ann. §§11-55-1 et seq., or Miss. R. Civ. P. 11 which supported awarding attorneys’ fees and expenses in excess of those actually incurred. In re Spencer, 985 So. 2d 330, 2008 Miss. LEXIS 327 (Miss.), cert. denied, 555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 U.S. LEXIS 8600 (U.S. 2008).

3. Payment of attorneys’ fees awarded.

Trial court did not err in awarding attorney’s fees and expenses to a patient pursuant to the Litigation Accountability Act because the patient had to incur unnecessary expenses in a doctor’s action seeking payment for medical services; prior to the lawsuit, the patient advised the doctor’s office they were attempting to collect payment from the wrong person, but the doctor still served the patient with the summons and complaint. Monaghan v. Autry, 229 So.3d 201, 2017 Miss. App. LEXIS 155 (Miss. Ct. App. 2017).

Special court of eminent domain erred in denying an owner’s request for attorney’s fees and expenses because the neighbors clearly invoked the statutory procedures of the special court of eminent domain when they petitioned to condemn the owner’s property for a private road and the state constitution clearly prohibited the Legislature from creating the statutory right to condemn for a private road property within an incorporated city or town. High v. Kuhn, 240 So.3d 1198, 2017 Miss. LEXIS 455 (Miss. 2017).

Chancery court properly found that a tenant filed a lis pendens (a “Notice of Subordination, Attornment and Non-Disturbance Agreement with a ”rental agreement“ attached) without substantial justification and awarded fees and costs to the owner because the tenant never had a valid rental agreement inasmuch as the agreement was between the tenant and her father and uncle, and the property was owned by her cousin and later sold to the current owner when the document was prepared and filed, and the tenant’s denial of the allegation to remove the notice from the county records had no justification whatsoever. Huey v. Strong, 206 So.3d 547, 2016 Miss. App. LEXIS 795 (Miss. Ct. App. 2016).

Chancery court properly awarded attorney’s fees to a buyer because, although the chancellor did not expressly identify the legal basis of the award, it was clear from context that the fees were awarded pursuant to the Litigation Accountability Act, there was substantial evidence to support the chancellor’s findings that the various legal maneuvers pursued by the seller in seeking to avoid its clear obligation to reimburse the buyer were frivolous and calculated to delay and harass the buyer and that the seller’s attempt to have the buyer’s utilities disconnected was especially egregious in nature. Main St. Holding v. Omsiv Inc., 203 So.3d 668, 2016 Miss. App. LEXIS 711 (Miss. Ct. App. 2016).

Vendor and a former employee of a company in the pipeline services business were entitled to an award of attorneys’ fees and expenses because the company filed its application for a preliminary injunction against them frivolously and in bad faith, regardless of the amount of the injunction bond posted by the company. Expro Ams., LLC v. Walters, 179 So.3d 1010, 2015 Miss. LEXIS 574 (Miss. 2015).

Chancery court properly awarded an insured attorney’s fees because it did not abuse its discretion in determining that an insured’s removal to federal court was unsubstantiated and contrary to well-established precedent; there was clearly established precedent that the Employment Retirement Income Security Act of 1974 did not preempt a chancery court’s power to settle the claims of minors. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Chancery court did not err in awarding an insured attorney’s fees on the ground that an insurer’s removal to federal court was contrary to clearly established law and was done for the purpose of delaying litigation because the insurer sought a remedy in federal court that did not exist under the Enforcement Provision of the Employment Retirement Income Security Act of 1974; by removing the case to federal court, the insurer failed to state a claim that was cognizable under federal law. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Chancery court did not abuse its discretion in awarding an insured attorney’s fees on the ground that an insurer’s removal of the case to federal court was frivolous because the award was inextricably intertwined with its determination that it was clearly established that the chancery court’s statutory duty to approve the settlement of the insured’s liability insurance claims was not preempted by the Employment Retirement Income Security Act of 1974. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Chancery court did not err in awarding an insured attorney’s fees on the ground that an insurer’s removal to federal court was contrary to clearly established law and was done for the purpose of delaying litigation because frivolous removals to federal court were subject to the Mississippi Litigation Accountability Act; the insurer’s removal suspended the chancery court’s jurisdiction for two years, preventing it approval of the settlements of an insured’s claims. Ashley Healthcare Plan v. Dillard (In re O.D.), 177 So.3d 175, 2015 Miss. LEXIS 390 (Miss. 2015).

Trial court did not abuse its discretion in awarding attorneys fee sanction against plaintiff and his counsel in a quiet title action because the record established that both plaintiff and his counsel were fully aware of the fact that the quiet title claim, based on adverse possession and regarding a parcel that was held by the United States, could not be successful under 28 U.S.C.S. § 2409a. Sullivan v. Maddox, 122 So.3d 75, 2013 Miss. App. LEXIS 26 (Miss. Ct. App.), cert. denied, 119 So.3d 328, 2013 Miss. LEXIS 453 (Miss. 2013).

As appellant failed to serve a complaint on an estate and his claim against the estate was time barred, the trial court did not abuse its discretion in awarding the estate attorneys’ fees under Miss. Code Ann. §11-55-5(1). Covington v. McDaniel (In re Estate of Necaise), 126 So.3d 49, 2013 Miss. App. LEXIS 108 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 598 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 601 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 610 (Miss. 2013).

Attorney’s fees were awarded in favor of and against the father in a custody proceeding even though the father was proceeding pro se in an appeal of a chancellor’s denial of the father’s recusal motion. The appeal was without substantial justification because the chancellor had recused himself long before the appeal, and the father was aware of the recusal. Balius v. Gaines, 95 So.3d 730, 2012 Miss. App. LEXIS 488 (Miss. Ct. App. 2012).

Decision to impose sanctions under Miss. R. Civ. P. 45(f) and Miss. Code Ann. §11-55-5(1), including an award of attorney’s fees, against creditors was consistent with the decision that the garnishment was unreasonable as a result of the considerable evidence that creditors knew or should have known prior to filing for garnishment of the good efforts debtors made with regard to making the payment at issue. Deliman v. Anthony Clarke Thomas & Act Envtl., Inc., 16 So.3d 721, 2009 Miss. App. LEXIS 79 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 415 (Miss. 2009).

Where plaintiff’s counsel commenced a personal injury suit against defendant railroad company one year and eight months after plaintiff’s demise, the lawsuit amounted to a nullity; because the railroad company had a complete defense based upon the death of plaintiff some 20 months earlier, the lawsuit was frivolous, and an award of attorney fees was proper under Miss. R. Civ. P. 11 and Miss. Code Ann. §11-55-5. Ill. Cent. R.R. Co. v. Broussard, 2008 Miss. App. LEXIS 589 (Miss. Ct. App. Sept. 30, 2008).

Because a father was aware of a son’s statute of limitation’s defense and the father proceeded with his action on a promissory note even though he had no hope of success, a trial court did not abuse its discretion in determining that the suit was frivolous and without substantial justification under Miss. Code Ann. §§11-55-5(1) and11-55-3(a). Accordingly, the trial court could impose sanctions in the form of attorneys’ fees and expenses against the father. Merideth v. Merideth, 987 So. 2d 477, 2008 Miss. App. LEXIS 393 (Miss. Ct. App. 2008).

Evidence supported the chancellor’s findings that the claims concerning the dissemination of the daughter’s medical records and custody claims were without substantial justification; therefore, the attorney was liable for sanctions under the Litigation Accountability Act, Miss. Code Ann. §§11-55-1 et seq. In re Spencer, 985 So. 2d 330, 2008 Miss. LEXIS 327 (Miss.), cert. denied, 555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 U.S. LEXIS 8600 (U.S. 2008).

Award of attorneys’ fees based upon a quantum meruit claim in favor of the subcontractor was proper because the contractor delayed paying the subcontractor the remaining balance on its contract for no apparent reason. The contractor knew that the subcontractor was entitled to the money, but withheld the money and continued to do so; further, the contractor solicited and secured the subcontractor’s efforts to persuade the agency to release the retainage, inducing the subcontractor to believe that it would get its money when in fact the contractor had already assigned the entire retainage to its bank. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 2007 Miss. LEXIS 577 (Miss. 2007).

Where a chancery court had already issued an order regarding the disposition of insurance funds, a subsequent lawsuit over the same issue involving the same parties was barred by the doctrine of collateral estoppel; since a subsequent claim arising from the same issue had no hope of success, sanctions were properly awarded. Richardson v. Audubon Ins. Co., 948 So. 2d 445, 2006 Miss. App. LEXIS 712 (Miss. Ct. App. 2006).

Executor’s misrepresentation of the true facts to the chancery court (his brother’s known claims of ownership to the livestock and the evidence of a valid inter vivos gift by the decedent), amounted to “improper conduct” under Miss. Code Ann. §91-7-85, and his removal as executor of the estate was proper. Further, the chancellor properly found that the executor (and his attorney), violated the Mississippi Litigation Accountability Act, Miss. Code Ann. §§11-55-1 to11-55-15 (Rev. 2002), and Miss. R. Civ. P. 11(b), by their misrepresentations in obtaining an order from the chancery court, permitting them to retrieve the subject livestock, and the chancellor’s award of attorney’s fees and expenses was proper. In re Estate of Ladner v. Ladner, 909 So. 2d 1051, 2004 Miss. LEXIS 1356 (Miss. 2004) (Miss. – 2004).

Attorney fees were properly awarded against a pro se litigant in an action by him against a judge where the judge’s attorney wrote to him advising that his cause of action lacked merit, advising him of the Litigation Accountability Act of 1988, requesting that he seek legal counsel, and stating that, if he pursued the complaint, an award of attorney’s fees would be sought. Wheeler v. Stewart, 798 So. 2d 386, 2001 Miss. LEXIS 42 (Miss. 2001).

Sanctions were properly awarded to the defendant in an action for intentional infliction of emotional distress based on an allegation that the plaintiff’s former wife set out on a course of conduct calculated to lead to the total destruction of the parent-child/grandparent-child relationship between the parties’ child and her father’s side of the family where the trial court found that the plaintiffs had no hope of success in the case. Little v. Collier, 759 So. 2d 454, 2000 Miss. App. LEXIS 103 (Miss. Ct. App. 2000).

The plaintiff’s attorney was properly ordered to pay attorneys’ fees to the defendant since (1) he had every opportunity to research and insure that the claim had a hope of survival and chose to file the suit and to pursue it even after he learned of prior proceedings that showed no hope of success, and (2) even if he filed the suit with a hope of success, once he learned of those prior proceedings, he should have voluntarily dismissed the suit. McBride v. Meridian Pub. Improvement Corp., 730 So. 2d 548, 1998 Miss. LEXIS 550 (Miss. 1998).

4. Attorneys’ fees awarded not excessive.

Chancellor did not err in denying a husband’s request for sanctions and attorney’s fees for defending the wife’s attacks on the validity of the prenuptial agreement where, in light of the unavailability of the original prenuptial agreement, the wife’s attacks on the validity of the photocopied duplicates were neither frivolous not without substantial justification. Black v. Black, 240 So.3d 1226, 2017 Miss. App. LEXIS 629 (Miss. Ct. App. 2017).

Owner was properly awarded attorneys fees and costs of $32,837.06 for slander of title where a law firm filed lis pendens notices claiming that the land the transportation commission was seeking to condemn was of interest in a Louisiana action, when in fact the land had nothing to do with the Louisiana action and the same parties were not involved; the firm stipulated that the $200 per hour rate was reasonable Lehman v. Miss. Transp. Comm'n, 127 So.3d 277, 2013 Miss. App. LEXIS 363 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 658 (Miss. 2013).

Amount of attorneys’ fees awarded in favor of the subcontractor were not excessive because the facts surrounding and concerning that portion of the subcontractor’s motion for attorneys’ fees relating to setting the amount of attorney’s fees justified the assessment of the fees in an amount that the trial judge found to have been reasonable and fair and that satisfied the requirements of law. The trial judge presided over a two-week trial in which numerous witnesses testified and more than 100 exhibits were received into evidence. Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 2007 Miss. LEXIS 577 (Miss. 2007).

5. Payment of attorneys’ fees denied.

Decedent’s wife was not entitled to attorney’s fees and expenses on appeal because in asserting her claim to attorney’s fees and expenses, the wife failed to cite any relevant statutory law, caselaw, or rules; because the decedent’s daughter asserted a nonfrivolous issue on appeal, and because the wife failed to cite relevant authority to support her claim, her request for attorney’s fees and expenses on appeal was denied. Chester v. Labasse (In re Estate of Labasse), 242 So.3d 167, 2017 Miss. App. LEXIS 540 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 70, 2018 Miss. LEXIS 192 (Miss. 2018)

Circuit court did not err by failing to sanction a boat insurer for making a frivolous claim for defense costs and expenses where although the cases it cited in support of its position were distinguishable, its position was neither frivolous nor interposed for delay or harassment. Cont'l Cas. Co. v. Allstate Prop. & Cas. Ins. Co., 235 So.3d 40, 2017 Miss. LEXIS 340 (Miss. 2017)

In an easement dispute, it was not error to deny the dominant estate holder’s request for attorney’s fees because (1) the servient estate holders acted in good faith, (2) no contractual provision or statute authorized an award, and (3) no monetary damages were shown. McDowell v. Zion Baptist Church, 203 So.3d 676, 2016 Miss. App. LEXIS 703 (Miss. Ct. App. 2016).

Chancery court erred in finding that the e Department of Marine Resources (DMR) violated the Mississippi Litigation Accountability Act because DMR was under no duty to join the State Auditor as a necessary party. Miss. Dep't of Audit v. Gulf Publ. Co., 235 So.3d 1452, 2016 Miss. App. LEXIS 170 (Miss. Ct. App. 2016), rev'd, in part, vacated, 236 So.3d 32, 2017 Miss. LEXIS 437 (Miss. 2017).

Chancery court erred in finding that the Department of Marine Resources (DMR) violated the Mississippi Litigation Accountability Act because although the chancery court found that DMR was under an affirmative duty to maintain a back up copy of the complete set of records it was charged to keep as a public body, nothing in Miss. Code Ann. §25-59-15 required every public record to be backed up with paper or electronic copies. Miss. Dep't of Audit v. Gulf Publ. Co., 235 So.3d 1452, 2016 Miss. App. LEXIS 170 (Miss. Ct. App. 2016), rev'd, in part, vacated, 236 So.3d 32, 2017 Miss. LEXIS 437 (Miss. 2017).

Sanctions were inappropriate because a husband’s pleading was not frivolous; it was possible that the husband’s petition could have been granted, and his intentions in filing the pleading were irrelevant because the pleading itself was capable of succeeding. Huseth v. Huseth, 135 So.3d 846, 2014 Miss. LEXIS 196 (Miss. 2014).

Chancery court did not err in failing to sanction a wife under the Litigation Accountability Act because the wife did not withhold the information from the chancery court, and the information was before the chancery court when it made the original attorney’s fees award as well as the attorney’s fees award on remand. Pierce v. Pierce, 132 So.3d 553, 2014 Miss. LEXIS 122 (Miss. 2014).

Doctor’s motion for sanctions under Miss. R. Civ. P. 11 and Miss. Code Ann. §11-55-5 against a patient’s attorney in a wrongful death action that alleged medical malpractice was properly denied as the attorney had a reasonable hope of success and had performed due diligence in determining the validity of the claim against the doctor. Todd v. Clayton, 53 So.3d 827, 2011 Miss. App. LEXIS 51 (Miss. Ct. App. 2011).

Refusal to award attorney fees to the employer after the deceased employee’s personal-injury suit was dismissed was proper under Miss. R. Civ. P. 11 and the Litigation Accountability Act of 1988, Miss. Code Ann. §§11-55-1 to11-55-15, because, although the filing of a claim for a deceased person was frivolous since the claim had no hope of success, the decision to award sanctions was within the discretion of the trial court and the trial court was within its discretion to deny sanctions. The deceased employee’s counsel filed the lawsuit and tried to follow up on it, and the employee was alive when it was originally filed; when counsel was unable to contact the employee, counsel pursued the lawsuit on the employee’s behalf in order to avoid being barred by the statute of limitations. Ill. Cent. R.R. v. Broussard, 19 So.3d 821, 2009 Miss. App. LEXIS 745 (Miss. Ct. App. 2009).

Appellate court could not find that the chancery court erred in concluding that sanctions under neither Miss. R. Civ. P. 11(b) nor the Litigation Accountability Act, Miss. Code Ann. §11-55-5(1) were warranted because while the chancellor had ordered the property owner to pay the county’s fees for producing the records, it was unclear whether the property owner was to pay the bill within 20 days of the hearing or the final judgment. However, once the property owner paid the fees and the county withdrew its motion, the issue became moot. LaCroix v. Marshall County Bd. of Supervisors, 28 So.3d 650, 2009 Miss. App. LEXIS 537 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 90 (Miss. 2010).

Chancellor’s decision not to award attorney’s fees to the landowner was not an abuse of discretion where there was no evidence that the county filed the title claim in bad faith or without justification; to the contrary, the county presented ample evidence to support its claim. Knight v. Covington County, 27 So.3d 1163, 2009 Miss. App. LEXIS 216 (Miss. Ct. App. 2009), cert. dismissed, 2010 Miss. LEXIS 76 (Miss. Feb. 18, 2010).

In a will-contest action, even if the matter were properly before the appellate court, the girlfriend of the decedent’s motion for sanctions and attorney fees under Miss. Code Ann. §11-55-5(1) and Miss. R. Civ. P. 11(b) was waived since she filed no notice of appeal for her “counter-appeal” as required by Miss. R. App. P. 4(a). Moreover, once the chancellor held the matter in abeyance, the record did not reflect that the girlfriend raised the motion for sanctions again until her appellate brief and she did not file her notice of appeal until 28 days after entry of the final judgment; at any time in the interim, the girlfriend could have requested a ruling on her motion for sanctions, but she failed to do so. Frazier v. Loew (In re Caspelich), 22 So.3d 1199, 2009 Miss. App. LEXIS 200 (Miss. Ct. App. 2009).

In a breach of contract case between a rehabilitative services company, a nursing home, and their two owners, the services company was not entitled to recover attorney fees for the defense of a withdrawn counterclaim under Miss. R. Civ. P. 11(b) and Miss. Code Ann. §11-55-5(1) because, even though the counterclaim was weak, there was no showing that it lacked any hope of success. Cain v. Cain, 967 So. 2d 654, 2007 Miss. App. LEXIS 445 (Miss. Ct. App. 2007).

Appellate court affirmed a grant of summary judgment in favor of defendants as plaintiff had admitted it had no contract with a group of property owners to auction their property, but defendants’ request for attorney fees under Miss. Code Ann. §11-55-5(1) was denied as the court could not state that plaintiff’s claim was substantially without justification. John Mozingo Real Estate & Auction, Inc. v. Nat'l Auction Group, Inc., 925 So. 2d 141, 2006 Miss. App. LEXIS 201 (Miss. Ct. App. 2006).

To be awarded attorney’s fees, the mother would have had to have been successful in her action against the father regarding child support, but she was not; there had been an extra-judicial modification to the child support agreement, but the father was compliant with the modified agreement. The failure to pay the daughter’s medical expenses was the result of the mother not providing the father with proof of the expenses, and his willingness to pay those expenses was evident in the record where upon presentation of the bills, the father promptly paid them; thus, the mother was not entitled to an award of attorney’s fees. Bryant v. Bryant, 924 So. 2d 627, 2006 Miss. App. LEXIS 190 (Miss. Ct. App. 2006).

Refusal to award attorney’s fees to the mother in a child custody action was proper pursuant to the Mississippi Litigation Accountability Act, Miss. Code Ann. §11-55-1 et seq., because the father’s claim for custody was not frivolous pursuant to Miss. Rev. Code §§11-55-5(1) and11-55-3(a). He was and remained the legal father of the children because the parties voluntarily signed an acknowledgment of paternity knowing that the father was not the biological father of the children. Adcock v. Van Norman, 918 So. 2d 747, 2005 Miss. App. LEXIS 208 (Miss. Ct. App.), aff'd in part and rev'd in part, 917 So. 2d 86, 2005 Miss. LEXIS 830 (Miss. 2005).

Trial court did not err in denying the doctors’ motion for sanctions where nothing in the record supported their claim that they were entitled to fees and expenses because the patient fired her counsel shortly before trial and caused delay of the proceedings and great expense to them; the trial court did not find that the patient requested a continuance for an improper purpose or to delay the trial, but allowed the patient time to obtain new counsel and ordered that each party pay its own fees and expenses. Hodges v. Lucas, 904 So. 2d 1098, 2004 Miss. App. LEXIS 975 (Miss. Ct. App. 2004).

Award of attorney fees to the husband in a divorce action was improper where the chancellor never made a finding that the wife had fabricated the sexual abuse charges involving their older son and had in some manner convinced the child to make the statements that he did; an award of some amount of fees incurred by the husband allocable to enforcing the visitation order might be supportable but a finding of contempt must first have been made. Gregory v. Gregory, 881 So. 2d 840, 2003 Miss. App. LEXIS 1082 (Miss. Ct. App. 2003), cert. denied, 883 So. 2d 1180, 2004 Miss. LEXIS 1333 (Miss. 2004).

Though the Mississippi Life and Health Guaranty Association “stretched the limits” in various defenses it raised to defeat a trustee’s claim for coverage for sums lost under an annuity contract with an insolvent insurer, the circuit court did not abuse its discretion by denying the trustee’s request for attorney’s fees. Bank of Miss. v. Miss. Life & Health Ins. Guar. Ass'n, 850 So. 2d 127, 2003 Miss. App. LEXIS 137 (Miss. Ct. App. 2003).

RESEARCH REFERENCES

ALR.

Attorneys’ fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond. 37 A.L.R.2d 525.

Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney. 52 A.L.R.2d 1217.

Use of criminal process to collect debt as abuse of process. 27 A.L.R.3d 1202.

Conduct of attorney in connection with making objections or taking exceptions as contempt of court. 68 A.L.R.3d 314.

Institution of confessed judgment proceedings as ground of action for abuse of process or malicious prosecution. 87 A.L.R.3d 554.

Method employed in collecting debt due client as ground for disciplinary action against attorney. 93 A.L.R.3d 880.

Civil liability of attorney for abuse of process. 97 A.L.R.3d 688.

Liability of attorney, acting for client, for malicious prosecution. 46 A.L.R.4th 249.

Excessiveness or inadequacy of compensatory damages for malicious prosecution. 50 A.L.R.4th 843.

Attorney’s liability under state law for opposing party’s counsel fees. 56 A.L.R.4th 486.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

What circumstances justify award of damages and/or double costs against appellant’s attorney under 28 USCS sec. 1912, or Rule 38 of the Federal Rules of Appellate Procedure.50 A.L.R. Fed. 652.

Authority of United States District Court, under 28 USCS sec. 1651(a), to enjoin, sua sponte, a party from filing further papers in support of frivolous claim. 53 A.L.R. Fed. 651.

Award of damages or costs under 28 USCS sec. 1912 or Rule 38 of Federal Rules of Appellate Procedure, against appellant who brings frivolous appeal. 67 A.L.R. Fed. 319.

Attorney’s liability under 42 USCS sec. 1983 for improperly instituting or pursuing legal procedure. 72 A.L.R. Fed. 724.

Inherent power of Federal District Court to impose monetary sanctions on counsel in absence of contempt of court. 77 A.L.R. Fed. 789.

Award of counsel fees to prevailing party based on adversary’s bad faith, obduracy, or other misconduct, 31 A.L.R. Fed. 833; 80 A.L.R. Fed. 302.

What conduct constitutes multiplying proceedings unreasonably and vexatiously so as to warrant imposition of liability on counsel under 28 USCS sec. 1927 for excess costs, expenses, and attorney fees. 81 A.L.R. Fed. 36.

Am. Jur.

6 Am. Jur. 2d, Attachment and Garnishment § 20 et seq.

16A Am. Jur. 2d, Constitutional Law § 664.

20 Am. Jur. 2d, Costs §§ 32, 33.

CJS.

20 C.J.S., Costs §§ 209-214.

72 C.J.S., Process §§ 136-140.

Lawyers’ Edition.

Supreme Court’s views as to awards of attorneys’ fees in federal civil rights cases. 87 L. Ed. 2d 713.

Law Reviews.

Robertson, Discovering Rule 11 of the Mississippi Rules of Civil Procedure. 8 Miss. C. L. Rev. 111, Spring, 1988.

§ 11-55-7. Award of costs and attorney’s fees; amount of award; factors to consider.

In determining the amount of an award of costs or attorney’s fees, the court shall exercise its sound discretion. When granting an award of costs and attorney’s fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorney’s fees and costs and the amount to be assessed:

The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted, and the time remaining within which the claim or defense could be filed;

The extent of any effort made after the commencement of an action to reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;

The availability of facts to assist in determining the validity of an action, claim or defense;

Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;

Whether or not issues of fact, determinative of the validity of a party’s claim or defense, were reasonably in conflict;

The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;

The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;

The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;

The extent to which a reasonable effort was made to determine prior to the time of filing of an action or claim that all parties sued or joined were proper parties owing a legally defined duty to any party or parties asserting the claim or action;

The extent of any effort made after the commencement of an action to reduce the number of parties in the action; and

The period of time available to the attorney for the party asserting any defense before such defense was interposed.

HISTORY: Laws, 1988, ch. 495, § 4, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

3. Attorneys’ fees awarded excessive.

1. In general.

Because the circuit court failed to make any of the required findings as to the appropriateness of an award of attorney’s fees, the circuit court abused its discretion. Wirtz v. Adams Cty. Bd. of Supervisors, 278 So.3d 1170, 2019 Miss. App. LEXIS 156 (Miss. Ct. App. 2019).

It was error to award a town and school district attorney’s fees because the court did not consider required statutory factors. Tunica County v. Town of Tunica, 227 So.3d 1007, 2017 Miss. LEXIS 179 (Miss. 2017).

Trial court did not err in awarding attorney’s fees and expenses to a patient pursuant to the Litigation Accountability Act because the patient had to incur unnecessary expenses in a doctor’s action seeking payment for medical services; prior to the lawsuit, the patient advised the doctor’s office they were attempting to collect payment from the wrong person, but the doctor still served the patient with the summons and complaint. Monaghan v. Autry, 229 So.3d 201, 2017 Miss. App. LEXIS 155 (Miss. Ct. App. 2017).

Although a former professor had no hope of success on his negligence-based claims against university staff who were immune under Miss. Code Ann. §11-46-7(2), they were not entitled to fees incurred defending against those claims after the professor conceded them in his responses to summary judgment motions. Payne v. Univ. of S. Miss., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 73028 (S.D. Miss. June 5, 2015), aff'd, 681 Fed. Appx. 384, 2017 U.S. App. LEXIS 4495 (5th Cir. Miss. 2017).

Trial court did not err in ordering sanctions in a citizen’s action against a city, a municipal court, and a municipal court judge pursuant to the Mississippi Litigation Accountability Act and Miss. R. Civ. P. 11(b) because the record clearly supported a finding that the citizen pursued a frivolous collateral action in trial court and that the sanctions were appropriate; in granting sanctions of attorney fees against the citizen pursuant to the factors set out in the Litigation Accountability Act, Miss. Code Ann. §11-55-7, and Rule 11(b), the trial court found that the action was a frivolous action filed without substantial notification in order to harass the city, municipal court, and municipal court judge. Prewitt v. City of Oxford, 44 So.3d 922, 2010 Miss. LEXIS 184 (Miss. 2010), cert. denied, 2010 Miss. LEXIS 274 (Miss. June 3, 2010), cert. denied, 562 U.S. 893, 131 S. Ct. 294, 178 L. Ed. 2d 142, 2010 U.S. LEXIS 6224 (U.S. 2010).

Chancellor was within her discretion in finding the grandparents’ visitation claim, the claims concerning the dissemination of the daughter’s medical records, and custody claims were without substantial justification; therefore, the chancellor properly found the attorney liable for sanctions under the Litigation Accountability Act. In re Spencer, 2008 Miss. LEXIS 126 (Miss. Feb. 28, 2008).

In a wrongful death action filed by the parents of two passengers who were killed during a police pursuit of the driver of a stolen vehicle, the parents were ordered to pay the county’s attorney fees that were incurred in defending the action on appeal because the appeal was frivolous, as they had no hope of success against the county; the parents were only able to construct a one-sentence argument against the county and the undisputed facts showed that the passengers were involved in criminal activity at the time of the death, namely fleeing from the police in a stolen vehicle. McCoy v. City of Florence, 949 So. 2d 69, 2006 Miss. App. LEXIS 526 (Miss. Ct. App. 2006), cert. denied, 949 So. 2d 37, 2007 Miss. LEXIS 113 (Miss. 2007).

Trial court erred in awarding attorney fees to the father and against the state human service agency in its action to obtain child support for the mother as the court did not consider the factors for awarding attorney fees set forth in Miss. Code Ann. §11-55-7, as it was required to do, but instead noted only that the father’s motion for attorney fees as a sanction for the state human service agency’s allegedly frivolous pleading was granted. State Dep't of Human Servs. v. Shelby, 802 So. 2d 89, 2001 Miss. LEXIS 326 (Miss. 2001).

Trial court improperly awarded sanctions against the Mississippi Department of Human Services in a suit that sought to establish that a divorce decree that did not include a child support award was either void or insufficiently supported; neither argument was necessarily frivolous, and the trial court failed to set forth its reasons for awarding sanctions. Miss. Dep't of Human Servs. v. Shelby, 2001 Miss. LEXIS 209 (Miss. Aug. 23, 2001), op. withdrawn, sub. op., 802 So. 2d 89, 2001 Miss. LEXIS 326 (Miss. 2001).

The court properly awarded attorney fees and expenses under the act on the ground that the action was brought without substantial justification as there was no evidence that either the plaintiff or his attorney exercised sufficient effort to determine the validity of the claims before they were asserted. Wyssbrod v. Wittjen, 798 So. 2d 352, 2001 Miss. LEXIS 23 (Miss. 2001).

Where a chancery court gave no specific reasons for imposing sanctions, as required by the Litigation Accountability Act (§11-55-1 et seq.), the sanctions imposed must have been pursuant to Rule 11, Miss. R. Civ. P. Leaf River Forest Prods. v. Deakle, 661 So. 2d 188, 1995 Miss. LEXIS 455 (Miss. 1995).

The adoption of Rule 11, Miss. R. Civ. Proc., which provides for sanctions for the filing of a motion or pleading which is frivolous or was filed for the purpose of harassment or delay, did not render void the Mississippi Litigation Accountability Act of 1988 (§§11-55-1 et seq.), which provides for sanctions for the bringing of an action or the assertion of a claim or defense which is without substantial justification or was interposed for delay or harassment, since there is no apparent conflict between the plain language of the statutes and the rule. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

By stating that the court shall specifically set forth the reasons for awarding attorney’s fees and costs and enumerating factors to be considered by the court when making such an award, §11-55-7 augments Rule 11, Miss. R. Civ. Proc., which provides for sanctions for the filing of a motion or pleading which is frivolous or was filed for the purpose of harassment or delay, and §11-55-5, which provides for sanctions for the bringing of an action or the assertion of a claim or defense which is without substantial justification or was interposed for delay or harassment. Stevens v. Lake, 615 So. 2d 1177, 1993 Miss. LEXIS 73 (Miss. 1993).

A petitioner’s action for a writ of mandamus compelling a county board of education to adopt a resolution requesting the board of supervisors to create single member districts was not without substantial justification, and therefore the trial court did not err in declining to award attorney’s fees to the school board under the Litigation Accountability Act (§§11-55-1 et seq.), even though the petitioner did not make an effort to dismiss the action when he learned that his claim was moot though the board of education suggested that he do so, where there was no evidence that the action was prosecuted in bad faith or for an improper purpose, there were no issues of fact determinative of the validity of the claim in conflict at the time of the first hearing, and there was no prevailing party since the petitioner’s claim became moot via action of the school board following the first hearing. Jackson County School Bd. v. Osborn, 605 So. 2d 731, 1992 Miss. LEXIS 313 (Miss. 1992).

2. Jurisdiction.

The court had jurisdiction to award attorney fees and expenses against both the plaintiff and his out-of-state counsel notwithstanding that counsel was no longer representing the plaintiff at the time of the award and his authority to practice law pro hac vice in the court had been rescinded, as he submitted to the jurisdiction of the court by appearing for the plaintiff and he was served with notice of the hearing on attorney fees and expenses. Wyssbrod v. Wittjen, 798 So. 2d 352, 2001 Miss. LEXIS 23 (Miss. 2001).

3. Attorneys’ fees awarded excessive.

Chancellor abused her discretion by awarding a judgment of fees and expenses greater than that supported by the record as there was nothing in the Litigation Accountability Act, Miss. Code Ann. §§11-55-1 et seq., or Miss. R. Civ. P. 11 which supported awarding attorneys’ fees and expenses in excess of those actually incurred. In re Spencer, 985 So. 2d 330, 2008 Miss. LEXIS 327 (Miss.), cert. denied, 555 U.S. 1046, 129 S. Ct. 629, 172 L. Ed. 2d 610, 2008 U.S. LEXIS 8600 (U.S. 2008).

RESEARCH REFERENCES

ALR.

Attorneys’ fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond. 37 A.L.R.2d 525.

Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney. 52 A.L.R.2d 1217.

Use of criminal process to collect debt as abuse of process. 27 A.L.R.3d 1202.

Conduct of attorney in connection with making objections or taking exceptions as contempt of court. 68 A.L.R.3d 314.

Liability of attorney, acting for client, for malicious prosecution. 46 A.L.R.4th 249.

Excessiveness or inadequacy of compensatory damages for malicious prosecution. 50 A.L.R.4th 843.

Attorney’s liability under state law for opposing party’s counsel fees. 56 A.L.R.4th 486.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Bringing of frivolous civil claim or action as ground for discipline of attorney. 85 A.L.R.4th 544.

Award of counsel fees to prevailing party based on adversary’s bad faith, obduracy, or other misconduct, 31 A.L.R. Fed. 833.

What circumstances justify award of damages and/or double costs against appellant’s attorney under 28 USCS sec. 1912, or Rule 38 of the Federal Rules of Appellate Procedure.50 A.L.R. Fed. 652.

Authority of United States District Court, under 28 USCS sec. 1651(a), to enjoin, sua sponte, a party from filing further papers in support of frivolous claim. 53 A.L.R. Fed. 651.

Award of damages or costs under 28 USCS sec. 1912 or Rule 38 of Federal Rules of Appellate Procedure, against appellant who brings frivolous appeal. 67 A.L.R. Fed. 319.

Attorney’s liability under 42 USCS sec. 1983 for improperly instituting or pursuing legal procedure. 72 A.L.R. Fed. 724.

Inherent power of Federal District Court to impose monetary sanctions on counsel in absence of contempt of court. 77 A.L.R. Fed. 789.

What conduct constitutes multiplying proceedings unreasonably and vexatiously so as to warrant imposition of liability on counsel under 28 USCS sec. 1927 for excess costs, expenses, and attorney fees. 81 A.L.R. Fed. 36.

Am. Jur.

6 Am. Jur. 2d (Rev), Attachment and Garnishment § 17 et seq.

16A Am. Jur. 2d, Constitutional Law § 664.

20 Am. Jur. 2d, Costs §§ 32, 33.

CJS.

20 C.J.S., Costs §§ 209-214.

Lawyers’ Edition.

Supreme Court’s views as to awards of attorneys’ fees in federal civil rights cases. 87 L. Ed. 2d 713.

Law Reviews.

Robertson, Discovering Rule 11 of the Mississippi Rules of Civil Procedure. 8 Miss. C. L. Rev. 111, Spring, 1988.

§ 11-55-9. Limitations of chapter.

Nothing in this chapter shall be construed to prevent an attorney and his client from negotiating in private the actual fee which the client is to pay the client’s attorney. Nothing in this chapter is intended to limit the authority of the court to approve written stipulations filed with the court or oral stipulations in open court agreeing to no award of attorney’s fees or costs, or an award of attorney’s fees or costs in a manner different than that provided in this chapter.

HISTORY: Laws, 1988, ch. 495, § 5, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

§ 11-55-11. Application of chapter.

This chapter shall apply in all cases unless attorney’s fees are otherwise specifically provided by statute or court rule, in which case the provision allowing the greater award shall prevail.

HISTORY: Laws, 1988, ch. 495, § 6, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

JUDICIAL DECISIONS

1. In general.

This section is not applicable in the context of a criminal case. State v. Blenden, 748 So. 2d 77, 1999 Miss. LEXIS 219 (Miss. 1999).

RESEARCH REFERENCES

Law Reviews.

Robertson, Discovering Rule 11 of the Mississippi Rules of Civil Procedure. 8 Miss. C. L. Rev. 111, Spring, 1988.

§ 11-55-13. Severability.

If any section, paragraph, sentence, phrase or any part of this chapter shall be held invalid or unconstitutional, such holding shall not affect any other section, paragraph, sentence, clause, phrase or part of this chapter which is not in and of itself invalid or unconstitutional. Moreover, if the application of this chapter, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this chapter to other persons or circumstances which can be given effect without the invalid provision or application.

HISTORY: Laws, 1988, ch. 495, § 7, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

§ 11-55-15. Actions to which chapter applies.

This chapter shall apply to any suit or claim or defense or appeal filed or perfected subsequent to July 1, 1988. It shall also apply to any suit or claim or defense or appeal which has been filed or perfected prior to July 1, 1988, and which is not dismissed within one hundred eighty (180) days after July 1, 1988.

HISTORY: Laws, 1988, ch. 495, § 8, eff from and after July 1, 1988.

Cross References —

Sanctions for abusive pleadings and motions under rules of civil procedure, see Miss. R. Civ. P. 11.

RESEARCH REFERENCES

Law Reviews.

Robertson, Discovering Rule 11 of the Mississippi Rules of Civil Procedure. 8 Miss. C. L. Rev. 111, Spring, 1988.

Chapter 57. Structured Settlements

§ 11-57-1. Short Title.

This chapter shall be known and may be cited as the “Structured Settlement Protection Act.”

HISTORY: Laws, 2002, ch. 530, § 1, eff from and after July 1, 2002.

RESEARCH REFERENCES

ALR.

Construction and Application of State Structured Settlement Protection Acts.. 27 A.L.R. 6th 323.

§ 11-57-3. Definitions.

The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:

“Annuity issuer” means an insurer that has issued a contract to fund periodic payments under a structured settlement.

“Dependents” include a payee’s spouse and minor children and all other persons for whom the payee is legally obligated to provide support, including alimony.

“Discounted present value” means the present value of future payments determined by discounting such payments to the present using the most recently published Applicable Federal Rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service.

“Gross advance amount” means the sum payable to the payee or for the payee’s account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from such consideration.

“Independent professional advice” means advice of an attorney, certified public accountant, actuary or other licensed professional adviser.

“Interested parties” means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee’s death, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement.

“Net advance amount” means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under Section 11-57-5(e).

“Payee” means an individual who is receiving tax-free payments under a structured settlement and proposes to make a transfer of payment rights thereunder.

“Periodic payments” includes both recurring payments and scheduled future lump-sum payments.

“Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of 26 USCS 130.

“Responsible administrative authority” means, with respect to a structured settlement, any government authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement.

“Settled claim” means the original tort claim or workers’ compensation claim resolved by a structured settlement.

“Structured settlement” means an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers’ compensation claim.

“Structured settlement agreement” means the agreement, judgment, stipulation or release embodying the terms of a structured settlement.

“Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement.

“Structured settlement payment rights” means rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, where:

The payee is domiciled in, or the domicile or principal place of business of the structured settlement obligor or the annuity issuer is located in, this state;

The structured settlement agreement was approved by a court or responsible administrative authority in this state; or

The structured settlement agreement is expressly governed by the laws of this state.

“Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or other approval of any court or responsible administrative authority or other government authority that authorized or approved such structured settlement.

“Transfer” means any sale, assignment, pledge, hypothecation or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration; provided that the term “transfer” does not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered into with an insured depository institution, in the absence of any action to redirect the structured settlement payments to such insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce such blanket security interest against the structured settlement payment rights.

“Transfer agreement” means the agreement providing for a transfer of structured settlement payment rights.

“Transfer expenses” means all expenses of a transfer that are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including, without limitation, court filing fees, attorney’s fees, escrow fees, lien recordation fees, judgment and lien search fees, finder’s fees, commissions, and other payments to a broker or other intermediary; “transfer expenses” do not include preexisting obligations of the payee payable for the payee’s account from the proceeds of a transfer.

“Transferee” means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.

HISTORY: Laws, 2002, ch. 530, § 2, eff from and after July 1, 2002.

§ 11-57-5. Disclosure statement.

Not less than three (3) days before the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold type no smaller than fourteen (14) points, setting forth:

The amounts and due dates of the structured settlement payments to be transferred;

The aggregate amount of such payments;

The discounted present value of the payments to be transferred, which shall be identified as the “calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities,” and the amount of the Applicable Federal Rate used in calculating such discounted present value;

The gross advance amount;

An itemized listing of all applicable transfer expenses, other than attorney’s fees and related disbursement payable in connection with the transferee’s application for approval of the transfer, and the transferee’s best estimate of the amount of any such fees and disbursements;

The net advance amount;

The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee; and

A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by the payee.

HISTORY: Laws, 2002, ch. 530, § 3, eff from and after July 1, 2002.

§ 11-57-7. Transfers of structured settlement payment rights.

No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order or order of a responsible administrative authority based on express findings by such court or responsible administrative authority that:

The transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents;

The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing; and

The transfer does not contravene any applicable statute or the order of any court or other government authority.

HISTORY: Laws, 2002, ch. 530, § 4, eff from and after July 1, 2002.

JUDICIAL DECISIONS

1. Notice of transfer.

2. Transfer deemed ineffective.

3. Court approval of transfer.

1. Notice of transfer.

Notice of the transfer of structured settlement payment rights under Miss. Code Ann. §11-5-11(2) requires a return for a date certain similar to the procedure authorized in Miss. R. Civ. P. 81(d)(5); once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Miss. R. Civ. P. 5. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

2. Transfer deemed ineffective.

As appellant did not provide appellee with the notice required under Miss. Code Ann.11-57-11(2) of Mississippi’s Structured Settlement Protection Act, Miss. Code Ann. §§11-57-1 through 11-57-1-15, appellee’s purported transfer to appellant of his rights to receive structured settlement payments was ineffective. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

3. Court approval of transfer.

Because the Mississippi Structured Settlement Protection Act, Miss. Code Ann. §§11-57-1 through11-57-1-15, requires court approval of a transfer of structured settlement payment rights, a civil action is commenced by filing a complaint with the court; to obtain personal jurisdiction over an interested party, service of process is required consistent with either Miss. R. Civ. P. 4 or 81. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

§ 11-57-9. Consequences of transfer.

Following a transfer of structured settlement payment rights under this chapter:

The structured settlement obligor and the annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments;

The transferee shall be liable to the structured settlement obligor and the annuity issuer:

If the transfer contravenes the terms of the structured settlement, for any taxes incurred by such parties as a consequence of the transfer; and

For any other liabilities or costs, including reasonable costs and attorney’s fees, arising from compliance by such parties with the order of the court or responsible administrative authority or arising as a consequence of the transferee’s failure to comply with this chapter;

Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees; and

Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this chapter.

HISTORY: Laws, 2002, ch. 530, § 5, eff from and after July 1, 2002.

§ 11-57-11. Application for transfer; notification; hearing.

  1. An application under this chapter for approval of a transfer of structured settlement payment rights shall be made by the transferee and may be brought in the county in which the payee resides, in the county in which the structured settlement obligor or the annuity issuer maintains its principal place of business, or in any court or before any responsible administrative authority which approved the structured settlement agreement.
  2. Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court or responsible administrative authority and serve on all interested parties a notice of the proposed transfer and the application for its authorization, including with such notice:
    1. A copy of the transferee’s application;
    2. A copy of the transfer agreement;
    3. A copy of the disclosure statement required under Section 11-57-5;
    4. A listing of each of the payee’s dependents, together with each dependent’s age;
    5. Notification that any interested party is entitled to support, oppose or otherwise respond to the transferee’s application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and
    6. Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.

HISTORY: Laws, 2002, ch. 530, § 6, eff from and after July 1, 2002.

JUDICIAL DECISIONS

1. Notice of transfer.

2. Transfer deemed ineffective.

3. Court approval of transfer.

1. Notice of transfer.

Notice of the transfer of structured settlement payment rights under Miss. Code Ann. §11-5-11(2) requires a return for a date certain similar to the procedure authorized in Miss. R. Civ. P. 81(d)(5); once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Miss. R. Civ. P. 5. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

2. Transfer deemed ineffective.

As appellant did not provide appellee with the notice required under Miss. Code Ann.11-57-11(2) of Mississippi’s Structured Settlement Protection Act, Miss. Code Ann. §§11-57-1 through 11-57-1-15, appellee’s purported transfer to appellant of his rights to receive structured settlement payments was ineffective. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

3. Court approval of transfer.

Because the Mississippi Structured Settlement Protection Act, Miss. Code Ann. §§11-57-1 through11-57-1-15, requires court approval of a transfer of structured settlement payment rights, a civil action is commenced by filing a complaint with the court; to obtain personal jurisdiction over an interested party, service of process is required consistent with either Miss. R. Civ. P. 4 or 81. RSL Funding, LLC v. Saucier (In re Saucier), 130 So.3d 1108, 2013 Miss. App. LEXIS 133 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 71 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 74 (Miss. 2014).

§ 11-57-13. Transferee and payee responsibilities.

  1. The provisions of this chapter may not be waived by any payee.
  2. Any transfer agreement entered into on or after July 1, 2002, by a payee who resides in this state shall provide that disputes under such transfer agreement, including any claim that the payee has breached the agreement, shall be determined in and under the laws of this state. No such transfer agreement shall authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.
  3. No transfer of structured settlement payment rights shall extend to any payments that are life-contingent unless, prior to the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for (a) periodically confirming the payee’s survival, and (b) giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee’s death.
  4. No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to be proposed transferee or any assignee based on any failure of such transfer to satisfy the conditions of this chapter.
  5. Nothing contained in this chapter shall be construed to authorize any transfer of structured settlement payment rights in contravention of any law or to imply that any transfer under a transfer agreement entered into before July 1, 2002, is valid or invalid.
  6. Compliance with the requirements set forth in § 11-57-5 and fulfillment of the conditions set forth in § 11-57-7 shall be solely the responsibility of the transferee in any transfer of structured settlement payment rights, and neither the structured settlement obligor nor the annuity issuer shall bear any responsibility for, or any liability arising from, noncompliance with such requirements or failure to fulfill such conditions.

HISTORY: Laws, 2002, ch. 530, § 7, eff from and after July 1, 2002.

§ 11-57-15. Applicability.

This chapter shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after August 1, 2002; provided, however, that nothing contained herein shall imply that any transfer under a transfer agreement reached before such date is either effective or ineffective.

HISTORY: Laws, 2002, ch. 530, § 8, eff from and after July 1, 2002.

Chapter 59. Uniform Interstate Depositions and Discovery Act

§ 11-59-1. Short title.

This chapter may be cited as the Uniform Interstate Depositions and Discovery Act.

HISTORY: Laws, 2011, ch. 347, § 1, eff from and after July 1, 2011.

Comparable Laws from other States —

Alabama: Code of Ala. §12-21-400 et seq.

California: Cal Code Civ Proc § 2029.100 et seq.

Colorado: C.R.S. § 13-90.5-101 et seq.

Delaware: 10 Del. C. § 4311.

District of Columbia: D.C. Code § 13-441 et seq.

Georgia: O.C.G.A. §24-13-110 et seq.

Hawaii: HRS § 624D-1 et seq.

Illinois: 735 ILCS 35/1 et seq.

Indiana: Burns Ind. Code Ann. § 34-44.5-1-1 et seq.

Kansas: K.S.A. § 60-228a.

Kentucky: KRS § 421.360

Louisiana: La. R.S. § 13:3825.

Maryland: Md. Courts and Judicial Proceedings Code Ann. § 9-407 et seq.

Michigan: MCLS § 600.2201 et seq.

New York: NY CLS CPLR § 3119.

North Carolina: N.C. Gen. Stat. § 1F-1 et seq.

Ohio: ORC Ann. 2319.09.

South Carolina: S.C. Code Ann. §15-47-100 et seq.

Tennessee: Tenn. Code Ann. §24-9-201 et seq.

Utah: Utah Code Ann. § 78B-17-101 et seq.

Virgin Islands: 5 V.I.C. § 4922 et seq.

Virginia: Va. Code Ann. § 8.01-412.8 et seq.

Washington: Rev. Code Wash. (ARCW) § 5.51.010 et seq.

West Virginia: W. Va. Code §56-12-1 et seq.

§ 11-59-3. Definitions.

In this chapter:

  1. “Foreign jurisdiction” means a state other than this state.
  2. “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.
  3. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
  4. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
  5. “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:

Attend and give testimony at a deposition;

Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

Permit inspection of premises under the control of the person.

HISTORY: Laws, 2011, ch. 347, § 2, eff from and after July 1, 2011.

§ 11-59-5. Issuance of subpoena.

To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this chapter does not constitute an appearance in the courts of this state.

When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

A subpoena under subsection (b) must:

Incorporate the terms used in the foreign subpoena; and

Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

HISTORY: Laws, 2011, ch. 347, § 3, eff from and after July 1, 2011.

§ 11-59-7. Service of subpoena.

A subpoena issued by a clerk of court under Section 11-59-5 must be served in compliance with Rule 45 of the Rules of Civil Procedure.

HISTORY: Laws, 2011, ch. 347, § 4, eff from and after July 1, 2011.

§ 11-59-9. Deposition, production and inspection.

Rule 45 of the Mississippi Rules of Civil Procedure and Rule 2.01 of the Uniform Rules of Circuit and County Court Practice apply to subpoenas issued under Section 11-59-5.

HISTORY: Laws, 2011, ch. 347, § 5, eff from and after July 1, 2011.

§ 11-59-11. Application to court.

An application to the court for a protective order or to enforce, quash or modify a subpoena issued by a clerk of court under Section 11-59-5 must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.

HISTORY: Laws, 2011, ch. 347, § 6, eff from and after July 1, 2011.

§ 11-59-13. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Laws, 2011, ch. 347, § 7, eff from and after July 1, 2011.

§ 11-59-15. Application to pending actions.

This chapter applies to requests for discovery in cases pending on July 1, 2011.

HISTORY: Laws, 2011, ch. 347, § 8, eff from and after July 1, 2011.

Chapter 61. Mississippi Religious Freedom Restoration Act

§ 11-61-1. Mississippi Religious Freedom Restoration Act; legislative findings; purpose; applicability; relation to First Amendment.

  1. This section shall be known and may be cited as the Mississippi Religious Freedom Restoration Act.
  2. The Mississippi Legislature finds the following:
    1. The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
    2. Laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
    3. Government should not substantially burden religious exercise without compelling justification;
    4. In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
    5. The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
  3. The purposes of this section are as follows:
    1. To restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
    2. To provide a claim or defense to persons whose religious exercise is substantially burdened by government.
  4. As used in this section, the following words shall have the following meanings:
    1. “Government” means any branch, department, agency, instrumentality or political subdivision of the State of Mississippi and any official or other person acting under color of law of the State of Mississippi.
    2. “Demonstrates” means to meet the burdens of going forward with the evidence and of persuasion.
    3. “Exercise of religion” means the exercise of religion under the First Amendment to the Constitution.
    1. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in paragraph (b) of this subsection.
    2. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:
      1. Is in furtherance of a compelling governmental interest; and
      2. Is the least restrictive means of furthering that compelling governmental interest.
  5. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government, as defined by subsection (4) of this section. Standing to assert a claim or defense under this section shall be the same as the general rules of standing under Article III of the United States Constitution.
    1. This section applies to all state laws, rules, regulations and any municipal or county ordinances, rules or regulations and the implementation of those laws, whether statutory or otherwise, and whether adopted before or after July 1, 2014.
    2. Any such law, rule, regulation or ordinances adopted after July 1, 2014, shall be subject to this section unless such law explicitly excludes such application by reference to this section.
  6. Nothing in this section shall be construed to authorize any government to burden any religious belief.
  7. Nothing in this section shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion. Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this section. As used in this subsection, the term “granting,” used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
  8. Nothing in this section shall create any rights by an employee against an employer if the employer is not the government.

HISTORY: Laws, 2014, ch. 474, § 1, eff from and after July 1, 2014.

Chapter 62. Protecting Freedom of Conscience from Government Discrimination Act

§ 11-62-1. Short title.

This chapter shall be known and may be cited as the “Protecting Freedom of Conscience from Government Discrimination Act.”

HISTORY: Laws, 2016, ch. 334, § 1, eff from and after July 1, 2016.

Editor’s Notes —

In Barber v. Bryant, 2016 U.S. Dist. LEXIS 86120, the United States District Court for the Southern District of Mississippi held that HB 1523 (Chapter 334, Laws of 2016) violates the Establishment Clause in at least two ways: it establishes an official preference for certain religious beliefs over others because it enumerates three religious beliefs or moral convictions entitled to protection; and its broad religious accommodations come at the expense of other citizens, giving persons with the three enumerated religious beliefs absolute right to refuse service to LGBT citizens without regard for the impact on their employer, coworkers, or those being denied service. On June 30, 2016, the day before HB 1523 was to take effect, the court granted plaintiffs’ motions and preliminarily enjoined HB 1523.

HB 1523 has been codified as Chapter 62 in Title 11, comprising Sections 11-62-1 through 11-62-19.

§ 11-62-3. Protected beliefs.

The sincerely held religious beliefs or moral convictions protected by this chapter are the belief or conviction that:

Marriage is or should be recognized as the union of one man and one woman;

Sexual relations are properly reserved to such a marriage; and

Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.

HISTORY: Laws, 2016, ch. 334, § 2, eff from and after July 1, 2016.

§ 11-62-5. Discriminatory action by state government prohibited.

  1. The state government shall not take any discriminatory action against a religious organization wholly or partially on the basis that such organization:
    1. Solemnizes or declines to solemnize any marriage, or provides or declines to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3;
    2. Makes any employment-related decision including, but not limited to, the decision whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3; or
    3. Makes any decision concerning the sale, rental, occupancy of, or terms and conditions of occupying a dwelling or other housing under its control, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.
  2. The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.
  3. The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child, or who seeks from the state custody of a foster or adoptive child, wholly or partially on the basis that the person guides, instructs or raises a child, or intends to guide, instruct, or raise a child based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.
  4. The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction described in Section 11-62-3. This subsection (4) shall not be construed to allow any person to deny visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law.
  5. The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3:
    1. Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or
    2. Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.
  6. The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person establishes sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.
  7. The state government shall not take any discriminatory action against a state employee wholly or partially on the basis that such employee lawfully speaks or engages in expressive conduct based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3, so long as:
    1. If the employee’s speech or expressive conduct occurs in the workplace, that speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed; or
    2. If the employee’s speech or expressive conduct occurs outside the workplace, that speech or expressive conduct is in the employee’s personal capacity and outside the course of performing work duties.
    1. Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.
    2. Any person employed or acting on behalf of the state government who has authority to perform or solemnize marriages, including, but not limited to, judges, magistrates, justices of the peace or their deputies, may seek recusal from performing or solemnizing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3. Any person making such recusal shall provide prior written notice to the Administrative Office of Courts, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The Administrative Office of Courts shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal.

HISTORY: Laws, 2016, ch. 334, § 3, eff from and after July 1, 2016.

§ 11-62-7. Discriminatory action defined.

  1. As used in this chapter, discriminatory action includes any action taken by the state government to:
    1. Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in Section 11-62-5;
    2. Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person;
    3. Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, or other similar benefit from or to such person;
    4. Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program from or to such person;
    5. Impose, levy or assess a monetary fine, fee, penalty or injunction;
    6. Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any person; or
    7. Refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person employed or commissioned by the state government.
  2. The state government shall consider accredited, licensed or certified any person that would otherwise be accredited, licensed or certified, respectively, for any purposes under state law but for a determination against such person wholly or partially on the basis that the person believes, speaks or acts in accordance with a sincerely held religious belief or moral conviction described in Section 11-62-3.

HISTORY: Laws, 2016, ch. 334, § 4, eff from and after July 1, 2016.

§ 11-62-9. Actions under chapter.

  1. A person may assert a violation of this chapter as a claim against the state government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state government, any private person or any other party.
  2. An action under this chapter may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted available administrative remedies.
  3. Violations of this chapter which are properly governed by Chapter 46, Title 11, Mississippi Code of 1972, shall be brought in accordance with that chapter.

HISTORY: Laws, 2016, ch. 334, § 5, eff from and after July 1, 2016.

§ 11-62-11. Remedies.

An aggrieved person must first seek injunctive relief to prevent or remedy a violation of this chapter or the effects of a violation of this chapter. If injunctive relief is granted by the court and the injunction is thereafter violated, then and only then may the aggrieved party, subject to the limitations of liability set forth in Section 11-46-15, seek the following:

Compensatory damages for pecuniary and nonpecuniary losses;

Reasonable attorneys’ fees and costs; and

Any other appropriate relief, except that only declaratory relief and injunctive relief shall be available against a private person not acting under color of state law upon a successful assertion of a claim or defense under this chapter.

HISTORY: Laws, 2016, ch. 334, § 6, eff from and after July 1, 2016.

§ 11-62-13. Limitations period.

A person must bring an action to assert a claim under this chapter not later than two (2) years after the date that the person knew or should have known that a discriminatory action was taken against that person.

HISTORY: Laws, 2016, ch. 334, § 7, eff from and after July 1, 2016.

§ 11-62-15. Construction and applicability.

  1. This chapter shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted by the state and federal constitutions.
  2. The protection of free exercise of religious beliefs and moral convictions afforded by this chapter are in addition to the protections provided under federal law, state law, and the state and federal constitutions. Nothing in this chapter shall be construed to preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions. Nothing in this chapter shall be construed to narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions. Nothing in this chapter shall be construed to prevent the state government from providing, either directly or through an individual or entity not seeking protection under this chapter, any benefit or service authorized under state law.
  3. This chapter applies to, and in cases of conflict supersedes, each statute of the state that impinges upon the free exercise of religious beliefs and moral convictions protected by this chapter, unless a conflicting statute is expressly made exempt from the application of this chapter. This chapter also applies to, and in cases of conflict supersedes, any ordinance, rule, regulation, order, opinion, decision, practice or other exercise of the state government’s authority that impinges upon the free exercise of religious beliefs or moral convictions protected by this chapter.

HISTORY: Laws, 2016, ch. 334, § 8, eff from and after July 1, 2016.

§ 11-62-17. Definitions.

As used in this chapter, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

  1. “State benefit program” means any program administered or funded by the state, or by any agent on behalf of the state, providing cash, payments, grants, contracts, loans or in-kind assistance.
  2. “State government” means:
    1. The State of Mississippi or a political subdivision of the state;
    2. Any agency of the state or of a political subdivision of the state, including a department, bureau, board, commission, council, court or public institution of higher education;
    3. Any person acting under color of state law; and
    4. Any private party or third party suing under or enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.
  3. “Person” means:
    1. A natural person, in his or her individual capacity, regardless of religious affiliation or lack thereof, or in his or her capacity as a member, officer, owner, volunteer, employee, manager, religious leader, clergy or minister of any entity described in this section;
    2. A religious organization;
    3. A sole proprietorship, or closely held company, partnership, association, organization, firm, corporation, cooperative, trust, society or other closely held entity operating with a sincerely held religious belief or moral conviction described in this chapter; or
    4. Cooperatives, ventures or enterprises comprised of two (2) or more individuals or entities described in this subsection.
  4. “Religious organization” means:
    1. A house of worship, including, but not limited to, churches, synagogues, shrines, mosques and temples;
    2. A religious group, corporation, association, school or educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship; and
    3. An officer, owner, employee, manager, religious leader, clergy or minister of an entity or organization described in this subsection (4).
  5. “Adoption or foster care” or “adoption or foster care service” means social services provided to or on behalf of children, including:
    1. Assisting abused or neglected children;
    2. Teaching children and parents occupational, homemaking and other domestic skills;
    3. Promoting foster parenting;
    4. Providing foster homes, residential care, group homes or temporary group shelters for children;
    5. Recruiting foster parents;
    6. Placing children in foster homes;
    7. Licensing foster homes;
    8. Promoting adoption or recruiting adoptive parents;
    9. Assisting adoptions or supporting adoptive families;
    10. Performing or assisting home studies;
    11. Assisting kinship guardianships or kinship caregivers;
    12. Providing family preservation services;
    13. Providing family support services; and
    14. Providing temporary family reunification services.

HISTORY: Laws, 2016, ch. 334, § 9, eff from and after July 1, 2016.

§ 11-62-19. Relation to Mississippi Religious Freedom Restoration Act.

The provisions of this chapter shall be excluded from the application of Section 11-61-1.

HISTORY: Laws, 2016, ch. 334, § 10, eff from and after July 1, 2016.

Editor’s Notes —

Section 11-61-1, referred to in this section, is the Mississippi Religious Freedom Restoration Act.

Chapter 63. Application of Foreign Law

§ 11-63-1. Application of foreign law prohibited under certain circumstances.

  1. In this section, “foreign law” means any law, rule, legal code or legal system other than the constitution, laws and ratified treaties of the United States and the territories of the United States, the constitution and laws of another state of the United States, Native American tribal law, the Mississippi Constitution of 1890, and the laws of this state.
  2. A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

HISTORY: Laws, 2015, ch. 408, § 1, eff from and after July 1, 2015.

Chapter 65. Enforcement of Federal Laws, Orders, Rules

§ 11-65-1. Enforcement of certain federal laws, orders, or rules prohibited.

No federal executive order, agency order, law not enrolled by the United States Congress and signed by the President of the United States, rule, regulation or administrative interpretation of a law or statute issued, enacted or promulgated after July 1, 2016, that violates the United States Constitution or the Mississippi Constitution of 1890 shall be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof.

HISTORY: Laws, 2016, ch. 421, § 5, eff from and after passage (approved Apr. 15, 2016).

Chapter 67. Asbestos Bankruptcy Trust Claims Transparency Act

§ 11-67-1. Short title.

This chapter may be cited as the “Asbestos Bankruptcy Trust Claims Transparency Act.”

HISTORY: Laws, 2017, ch. 435, § 1, eff from and after July 1, 2017.

§ 11-67-3. Declaration of legislative intent.

  1. The Legislature finds and determines that:
    1. Asbestos is a mineral that was widely used for insulation, fireproofing, and other purposes;
    2. Exposure to asbestos has been causally associated with mesothelioma and lung cancer, as well as nonmalignant conditions such as asbestosis, pleural plaques, and diffuse pleural thickening;
    3. Approximately one hundred (100) employers have declared bankruptcy at least partially due to asbestos-related liability;
    4. Over ten thousand (10,000) companies have been named as asbestos defendants, including many small- and medium-sized companies, in industries that cover eighty-five percent (85%) of the United States economy;
    5. Scores of trusts have been established in asbestos-related bankruptcy proceedings to form a multibillion dollar asbestos bankruptcy trust compensation system outside of the tort system, and new asbestos trusts continue to be established;
    6. Asbestos plaintiffs often seek compensation both from solvent defendants in civil actions and from trusts or claims facilities formed in asbestos-related bankruptcy proceedings;
    7. There is limited coordination and transparency between these two (2) paths to recovery, which has resulted in the suppression of evidence in asbestos actions; and
    8. Justice is promoted by transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions.
  2. Now, therefore, it is the intent of the Legislature to:
    1. Provide transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions by creating a substantive right for defendants to obtain bankruptcy trust discovery;
    2. Reduce the opportunity for oversight or suppression of evidence in asbestos actions; and
    3. Enhance the ability of courts to oversee and manage asbestos cases.

HISTORY: Laws, 2017, ch. 435, § 2, eff from and after July 1, 2017.

§ 11-67-5. Definitions.

The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:

“Asbestos” includes, without limitation, chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, and any of these minerals that have been chemically treated or altered, including all minerals defined as asbestos in 29 CFR 1910 at the time the asbestos action is filed.

“Asbestos action” means a claim for damages or other civil or equitable relief presented in a civil action by a plaintiff arising out of, based on, or related to the health effects of exposure to asbestos, including, but not limited to, loss of consortium, wrongful death, mental or emotional injury.

“Asbestos trust” means a government-approved or court-approved trust, qualified settlement fund, compensation fund or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. 524(g) or 11 U.S.C. 1121(a) or other applicable provision of law, that is intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.

“Asbestos trust claim” includes, but is not limited to, any claim or demand for compensation for asbestos-related injuries from an asbestos trust.

“Plaintiff” means the exposed person, deceased or living, and the person bringing the asbestos action, including a personal representative if the asbestos action is brought by an estate, or a conservator or next friend if the asbestos action is brought on behalf of a minor or legally incapacitated individual.

“Trust materials” means a final executed proof of claim and all other documents and information related to a claim against an asbestos trust and any other information that the plaintiff submits to the asbestos trust, including claims forms and supplementary materials, affidavits, correspondence, depositions and trial testimony, work history, medical and health records, documents reflecting the status of a claim against an asbestos trust, and, if the trust claim has settled, all documents relating to the settlement of the trust claim.

“Trust governance documents” means all documents that relate to eligibility and payment levels, including, but not limited to, claims payment matrices, trust distribution procedures, or plans for reorganization, for an asbestos trust.

HISTORY: Laws, 2017, ch. 435, § 3, eff from and after July 1, 2017.

§ 11-67-7. Required disclosures by the plaintiff.

  1. Within thirty (30) days after an asbestos action is filed, or by August 1, 2017, whichever is later, the plaintiff shall do all of the following:
    1. Provide the court and parties with a sworn statement signed by the plaintiff, under penalties of perjury, that all asbestos trust claims that can be made by the plaintiff have been filed and that includes the following:
      1. A statement that an investigation of all asbestos trust claims has been conducted;
      2. A list identifying each asbestos trust claim that has been filed by the plaintiff;
      3. A list identifying each asbestos trust claim that can be made by the plaintiff, which has not been filed for the sole permissible reason that the cost of submitting an asbestos trust claim exceeds the plaintiff’s reasonably anticipated recovery; and
      4. Whether there has been a request to defer, delay, suspend, toll, withdraw, or otherwise alter the standing of any asbestos trust claim, and provide the status and disposition of each asbestos trust claim.
    2. Provide all parties with all trust materials, including trust materials that relate to conditions other than those that are the basis for the asbestos action and including all trust materials from all law firms connected to the plaintiff in relation to exposure to asbestos, including anyone at a law firm involved in the asbestos action, any referring law firm, and any other firm that has filed an asbestos trust claim for the plaintiff. Documents should be accompanied by a custodial affidavit from the asbestos trust, certifying that the trust materials submitted to defendants are true and complete.
    3. If the plaintiff’s asbestos trust claim is based on secondary exposure to asbestos through another individual or individuals, the plaintiff shall produce all trust materials submitted by the other individual or individuals to any asbestos trusts if the materials are available to the plaintiff or the plaintiff’s counsel.
  2. The plaintiff has a continuing duty to supplement the information and materials required under subsection (1) and the supplementation shall be made no later than thirty (30) days after the plaintiff supplements an existing asbestos trust claim, receives additional information or materials related to an asbestos trust claim, or files an additional asbestos trust claim.
  3. The court may dismiss the asbestos action if the plaintiff fails to comply with this section.
  4. An asbestos action may not be set for trial until at least one hundred eighty (180) days after the requirements of subsection (1) are met.
  5. Not less than thirty (30) days before trial in an asbestos action, the court shall enter into the record a document that identifies every asbestos trust claim made by the plaintiff.

HISTORY: Laws, 2017, ch. 435, § 4, eff from and after July 1, 2017.

§ 11-67-9. Identification of additional asbestos trust claims by defendant; trust record.

  1. A defendant may file a motion requesting a stay of the proceeding on or before the later of the sixtieth day before the date of trial in the action is set to commence or any other such time for which the defendant has a good faith reasonable basis to request a stay. The motion shall identify the asbestos trust claims not previously identified that the defendant believes the plaintiff can file and include information supporting the asbestos trust claims.
  2. Within ten (10) days of receiving the defendant’s motion, the plaintiff shall:
    1. File the asbestos trust claims; or
    2. File a written response with the court requesting a determination that the cost to file the asbestos trust claims exceeds the plaintiff’s reasonably anticipated recovery.
    1. Subject to paragraph (b) of this subsection (3), if the court determines that there is a basis for the plaintiff to file an asbestos trust claim identified in the motion to stay, the court shall stay the asbestos action until the plaintiff files the asbestos trust claim and produces all related trust claims materials.
    2. If the court determines that the cost of submitting an asbestos trust claim exceeds the plaintiff’s reasonably anticipated recovery, the court shall stay the asbestos action until the plaintiff files with the court and provides all parties with a verified statement of the plaintiff’s history of exposure, usage, or other connection to asbestos covered by that asbestos trust.
  3. An asbestos action may not be set for trial until at least sixty (60) days after the plaintiff complies with the requirements of this section.

HISTORY: Laws, 2017, ch. 435, § 5, eff from and after July 1, 2017.

§ 11-67-11. Discovery; use of materials.

  1. Trust materials and trust governance documents are presumed to be relevant and authentic, and are admissible in evidence in an asbestos action. A claim of privilege does not apply to any trust materials or trust governance documents.
  2. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent at the time of asbestos trust identification, including, but not limited to, authorization for release of trust materials or other expression of permission that may be required by the asbestos trust to release information and materials sought by a defendant.
  3. Trust materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents are sufficient to support a jury finding that the plaintiff was exposed to products for which the trust was established to provide compensation and that, under applicable law, such exposure is a substantial contributing factor in causing the plaintiff’s injury that is at issue in the asbestos action.

HISTORY: Laws, 2017, ch. 435, § 6, eff from and after July 1, 2017.

§ 11-67-13. Failure to provide information; sanctions.

  1. If the plaintiff files an asbestos trust claim after the plaintiff obtains a judgment in an asbestos action, and that asbestos trust was in existence at the time the plaintiff obtained the judgment, the trial court, on motion by a defendant or judgment debtor seeking sanctions or other relief, has jurisdiction to reopen the judgment in the asbestos action and adjust the judgment and order any relief to the parties that the court considers just and proper.
  2. A defendant or judgment debtor shall file any motion under this section within a reasonable time and not more than one (1) year after the judgment was entered.

HISTORY: Laws, 2017, ch. 435, § 7, eff from and after July 1, 2017.

§ 11-67-15. Application.

This chapter shall apply to all asbestos actions filed on or after July 1, 2017, and to all pending asbestos tort actions in which trial has not commenced as of July 1, 2017.

HISTORY: Laws, 2017, ch. 435, § 8, eff from and after July 1, 2017.

Chapter 69. Liability exemption for furnishing information concerning insurance fraud.

§ 11-69-1. Immunity of persons or entities from civil liability for furnishing information concerning insurance fraud; applicability.

  1. Except as otherwise providedin subsection (2) of this section, there shall be no civil liabilityimposed on and no cause of action shall arise against a person orentity for furnishing information concerning suspected or completedinsurance fraud to any law enforcement, investigatory, prosecutorialor regulatory agent or agency, insurer, or statutory residual marketplan. This shall not abrogate or modify common law or statutory privilegesor immunities enjoyed by a person or entity. The prohibition of civilliability applies only to the act of reporting and does not limitcivil liability against a person or entity for committing fraud orother tortious conduct.
  2. Subsection (1) of thissection shall not apply to claims against persons where false statementswere made in bad faith by persons furnishing information concerningsuspected or completed insurance fraud. Any civil action brought againsta person for filing a report or furnishing other information concerninginsurance fraud shall be dismissed unless the party bringing the actionhas pleaded specifically that subsection (1) of this section doesnot apply because the person filing the report or furnishing the informationdid so in bad faith, and has pleaded specifically facts that supporta claim of bad faith.

HISTORY: Laws, 2018, ch. 419, § 1, eff from and after July 1, 2018.