Editor’s Notes —

Former §9-1-1 authorized the holding of special terms of courts.

Former §9-1-3 specified conditions under which the term of court could be extended without a special order, or by order entered on the minutes of the court.

Editor’s Notes —

Former §9-1-7 provided that a change in the time or place of holding any court would not affect writs, process, bonds, recognizances, etc. issued or pending before the change.

JUDICIAL DECISIONS

1. In general.

2. Circuit court.

3. Chancery court.

1. In general.

Where the presiding judge of the court died during the term at which the defendant was indicted for murder and arraigned, and failed to sign any of the minutes of the term prior to his death, and during the interim before the appearance of the successor, the clerk of the court noted on the minutes thereof the judge’s absence and adjournment of court from day to day, and thereafter the duly appointed and qualified successor approved and signed the minutes of what transpired prior to the day on which he assumed the duties of the office, as reported by the clerk, overruling by such successor of a motion to quash the indictment, predicated on the lack of authority in such successor to sign the minutes of transactions taking place prior to his assumption of office, was proper. Grant v. State, 189 Miss. 341, 197 So. 826, 1940 Miss. LEXIS 124 (Miss. 1940).

Appeal taken within six months after rendition of order overruling new trial held not barred, though motion made at November term was not acted on until following July term. Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787, 1933 Miss. LEXIS 162 (Miss. 1933), overruled, Haralson v. State, 308 So. 2d 222, 1975 Miss. LEXIS 1852 (Miss. 1975).

Court convened on a day other than that set by law, except as provided by this section. [Code 1942 § 1648], is not a legal court. Steverson v. McLeod Lumber Co., 120 Miss. 65, 81 So. 788, 1919 Miss. LEXIS 67 (Miss. 1919).

This section [Code 1942 § 1648] provides for an adjourned session only if the judge be absent. Beard v. McLain, 117 Miss. 316, 78 So. 184, 1918 Miss. LEXIS 180 (Miss. 1918).

2. Circuit court.

Order in effect adjourning regular term of circuit court to later day, pursuant to which sheriff and clerk adjourned court, held valid. Mississippi & S. V. R. Co. v. Brown, 160 Miss. 123, 132 So. 556, 1931 Miss. LEXIS 124 (Miss. 1931).

Where circuit judge is unable to attend term of court on opening day or subsequent day, he may have order entered on minutes recessing court to future day during term. Perry v. State, 154 Miss. 459, 122 So. 744, 1929 Miss. LEXIS 164 (Miss. 1929).

Circuit judges have no authority to pretermit court terms, but they may be adjourned under statute. Ivey v. State, 154 Miss. 60, 119 So. 507, 1928 Miss. LEXIS 198 (Miss. 1928).

3. Chancery court.

Power of chancellor to authorize clerk or sheriff to adjourn court to later date exhausted when once exercised. Williams v. Simon, 135 Miss. 562, 99 So. 433, 1924 Miss. LEXIS 92 (Miss. 1924).

Where the chancery court directed the clerk to adjourn the regular term on a designated day, a decree in a suit pending on the first day of the regular term, rendered on the adjourned day, was not rendered at a special term, but at an adjourned term. First Nat'l Bank v. Abe Block & Co., 82 Miss. 197, 33 So. 849, 1903 Miss. LEXIS 115 (Miss. 1903).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 23.

CJS.

21 C.J.S., Courts §§ 157-159.

JUDICIAL DECISIONS

1. In general.

2. Relationship to parties.

3. Relationship to counsel for parties.

4. Relationship to victim of crime.

5. Interest in cause.

6. Prior interest in cause as counsel.

7. Consent.

8. Proceedings for disqualification.

1. In general.

Trial court did not abuse its discretion in denying a mother’s motion for recusal as the appellate record did not identify any evidence under Miss. Const. Art. 6, § 165 or Miss. Code. Ann. §9-1-11 that would disqualify the trial judge. J.N.W.E. v. W.D.W., 922 So. 2d 12, 2005 Miss. App. LEXIS 489 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 129 (Miss. 2006).

Presumption is that judge, sworn to administer impartial justice, is qualified and unbiased; to overcome presumption, evidence must produce reasonable doubt about validity of presumption. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

Judge is required to disqualify himself or herself if reasonable person, knowing all circumstances, would harbor doubts about his or her impartiality. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996); Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

When judge is not disqualified by Constitution or statute, propriety of decision not to recuse himself or herself is reviewed for abuse of discretion. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

In a proceeding for enforcement against the plaintiff of an oral settlement agreement allegedly reached regarding an automobile accident personal injury claim, the judge should have recused himself where he was present in the room during the critical settlement conference and was a witness to factual matters pertaining to the central issue of the credibility of the plaintiff and the plaintiff’s witnesses. Collins v. Dixie Transport, Inc., 543 So. 2d 160, 1989 Miss. LEXIS 196 (Miss. 1989).

A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubt about his impartiality. Rutland v. Pridgen, 493 So. 2d 952, 1986 Miss. LEXIS 2594 (Miss. 1986).

The chancellor did not err in refusing to recuse himself in an action by county taxpayers protesting the issuance of tax anticipation notes by the county board of supervisors where he was not related to any of the parties, and was not otherwise interested in the cause of action. West v. Greene County Board of Supervisors, 368 So. 2d 1260, 1979 Miss. LEXIS 2253 (Miss. 1979).

2. Relationship to parties.

Municipal court judge was publicly reprimanded because she committed judicial misconduct and conduct prejudicial to the administration of justice; the judge’s failure to recuse herself from a case involving a family member violated constitutional and statutory law. Miss. Comm'n on Judicial Performance v. Clinkscales, 192 So.3d 997, 2016 Miss. LEXIS 241 (Miss. 2016).

In a case alleging tortious interference with business relations, there was no error based on a trial judge’s failure to recuse himself under Miss. Unif. Cir. & Cty. R. 1.15 because the owners failed to raise the issue of alleged impartiality at the trial court level; the owners’ website showed that they knew of a grounds for recusal at the time of trial, and even if the owners had not been able to raise this issue before the trial judge, a reversal would still not have been granted because the judge was not connected to the objectors by affinity or consanguinity, and he had no interest in the outcome of the case based on vague allegations that the judge had eaten at the owners’ lodge. Bateman v. Gray, 963 So. 2d 1284, 2007 Miss. App. LEXIS 595 (Miss. Ct. App. 2007).

Trial judge was not required to disqualify himself under Miss. Const. Art. VI, § 165, Miss. Code Ann. §9-1-11, or Miss. Unif. Cir. & County Ct. Prac. R. 1.15 where there was no evidence that the trial judge was connected with the parties through marriage or blood and there was no evidence that the judge may have had an interest in the outcome of the proceeding, or that he was otherwise precluded by the statute; it was only in causes wherein the judge may have been of counsel that provided for disqualification. Hathcock v. S. Farm Bureau Cas. Ins. Co., 912 So. 2d 844, 2005 Miss. LEXIS 213 (Miss. 2005).

In an action against a school for injuries sustained by a five-year-old child, the trial judge did not err in failing to recuse himself based on the fact that he, as lead attorney, had cross-examined the child’s father as a medical expert witness in prior cases. Summers v. St. Andrew's Episcopal Sch., 759 So. 2d 1203, 2000 Miss. LEXIS 117 (Miss. 2000).

Defendant in capital murder trial was not prejudiced by trial judge’s denial of his motion for recusal, though trial judge’s former law firm had represented victim in divorce action, trial judge’s nephew who was member of same law firm represented victim’s estate and victim’s daughter, and victim’s daughter was witness against defendant at trial; there was nothing in manner trial judge presided over trial which indicated prejudice to defendant, and there was no evidence of any financial arrangements between trial judge and his former law firm. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

Where the prosecuting witness in a case brought under the “bad check” statute was his first cousin, the trial judge should have recused himself. Black v. State, 187 So. 2d 815, 1966 Miss. LEXIS 1355 (Miss. 1966).

A trial judge should avoid sitting in a case where the sole prosecuting witness is a near relative who is interested in the outcome of the prosecution. Black v. State, 187 So. 2d 815, 1966 Miss. LEXIS 1355 (Miss. 1966).

Judge is not disqualified to sit in a case unless connected with party by affinity or consanguinity, or pecuniarily interested. Cashin v. Murphy, 138 Miss. 853, 103 So. 787, 1925 Miss. LEXIS 93 (Miss. 1925).

Chancellor whose wife had deposit in bank, and who had other relatives connected with it, disqualified in proceedings for receivership. Dodd v. Kelley, 107 Miss. 471, 65 So. 561, 1914 Miss. LEXIS 110 (Miss. 1914).

Justice of peace disqualified where first cousin was president of corporation, one of the parties. Nimocks v. McGehee, 97 Miss. 321, 52 So. 626, 1910 Miss. LEXIS 251 (Miss. 1910).

3. Relationship to counsel for parties.

Recusal was not required by fact that judge was brother-in-law of attorney retained to help defense with jury selection, where all parties agreed to judge’s continued service, judge did not act in bad faith or dishonestly, and jury was not informed of the relationship. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

A trial judge who was the brother of a senior partner in a law firm representing a principal defendant should have recused himself from the case because of the appearance of impropriety. Trial judges in such a situation, particularly where the judge has filed a notice of relationship and a motion has been made for recusal because of the close kinship, should grant the motion and decline to participate in the case. In re Moffett, 556 So. 2d 723, 1990 Miss. LEXIS 30 (Miss. 1990).

A special chancellor in a divorce proceeding should have recused himself where both the chancellor and the husband had law offices in the same town, they had played golf together on several occasions and had had lunch together on one occasion, although, standing alone, the chancellor’s failure to recuse himself was not reversible error. Robinson v. Irwin, 546 So. 2d 683, 1989 Miss. LEXIS 321 (Miss. 1989).

A judge in a medical malpractice action should have recused himself in light of the fact that the judge’s brother was a senior partner in the law firm representing the defendant hospital, obviously a part of the medical community, coupled with allegations and testimony that the medical community in the county had assisted in electing the judge, since this would lead a reasonable person, with knowledge of the circumstances, to harbor doubts about the judge’s impartiality. Jenkins v. Forrest County General Hosp., 542 So. 2d 1180, 1988 Miss. LEXIS 642 (Miss. 1988).

Judge is not disqualified from hearing homicide case on basis of fact that homicide defendant’s former attorney, against whom defendant has filed bar complaint, has at one time been law partner of judge. Ruffin v. State, 481 So. 2d 312, 1985 Miss. LEXIS 2432 (Miss. 1985); Jenkins v. Forrest County General Hosp., 542 So. 2d 1180, 1988 Miss. LEXIS 642 (Miss. 1988).

Relationship to attorney not disqualification; suggestion of disqualification must be made before trial unless knowledge acquired subsequently. Shireman v. Wildberger, 125 Miss. 499, 87 So. 657, 1921 Miss. LEXIS 123 (Miss. 1921).

Relationship to attorney does not disqualify; “party” defined. Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 1920 Miss. LEXIS 97 (Miss. 1920).

However, a judge is disqualified where son and brother-in-law have taken case on contingent basis. Yazoo & M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 1912 Miss. LEXIS 28 (Miss.), modified, 102 Miss. 56, 58 So. 834 (Miss. 1912), limited, Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 1920 Miss. LEXIS 97 (Miss. 1920).

4. Relationship to victim of crime.

In a prosecution for capital murder, the trial judge did not err in refusing to recuse himself under this section, on the grounds that he was a near relative of the victim, where the judge was at most a third or fourth cousin of the deceased and could not be considered a close relative and where the record reflected no bias or prejudice on the part of the judge. Coleman v. State, 378 So. 2d 640, 1979 Miss. LEXIS 2542 (Miss. 1979); Jenkins v. Forrest County General Hosp., 542 So. 2d 1180, 1988 Miss. LEXIS 642 (Miss. 1988).

5. Interest in cause.

Postconviction relief was properly denied in a burglary case because the trial judge did nothing more than accept appellant’s plea and give the appropriate sentence; therefore, he did not get involved and there was no reason for him to recuse himself. Christie v. State, 915 So. 2d 1073, 2005 Miss. App. LEXIS 852 (Miss. Ct. App. 2005).

Defendant’s convictions for armed robbery and arson were proper where merely presenting a document which, testimony revealed, was inaccurate and written at the behest of defendant, was insufficient to establish that the judge had an interest in the outcome; defendant did not explain what benefit, other than to disqualify the judge, the testimony would have been to his case or how he was prejudiced by its absence. Payton v. State, 897 So. 2d 921, 2003 Miss. LEXIS 602 (Miss. 2003).

Judge is not disqualified to issue fiat for injunction restraining writ of execution against garnishee by mere fact that he rendered the judgment on which the garnishment was predicated. Campbell v. Yazoo & M. V. R. Co., 199 Miss. 309, 24 So. 2d 531, 1946 Miss. LEXIS 199 (Miss. 1946).

Judge not disqualified to sit in case, unless connected with party by affinity or consanguinity, or pecuniarily interested. Cashin v. Murphy, 138 Miss. 853, 103 So. 787, 1925 Miss. LEXIS 93 (Miss. 1925).

6. Prior interest in cause as counsel.

Trial judge abused his discretion in declining to recuse himself in a prosecution for aggravated assault and forcible rape of child, since he had served as county prosecuting attorney in an earlier youth-court shelter hearing regarding the child’s custody as a result of the events giving rise to the criminal charges, and 1) the threshold issue in that hearing was whether the complainant was an “abused child” under Miss. Code Ann. §43-21-105(m), which went to the heart of the issue of defendant’s guilt; 2) the judge might have personal knowledge of disputed evidentiary facts concerning the criminal case due to his participation in the youth-court shelter hearing. Miller v. State, 94 So.3d 1120, 2012 Miss. LEXIS 384 (Miss. 2012).

Because the judge appeared on behalf of the state as an assistant district attorney at the inmate’s plea colloquy he abused his discretion when he failed to recuse himself and ruled on the inmate’s post-conviction relief motion. Both due process and Miss. Code Ann. §9-1-11 required reversal of the dismissal of the inmate’s motion post conviction relief. Overstreet v. State, 17 So.3d 621, 2009 Miss. App. LEXIS 609 (Miss. Ct. App. 2009).

Because the judge appeared on behalf of the state as an assistant district attorney at the inmate’s plea colloquy he abused his discretion when he failed to recuse himself and ruled on the inmate’s post-conviction relief motion. Both due process and Miss. Code Ann. §9-1-11 required reversal of the dismissal of the inmate’s motion post conviction relief. Overstreet v. State, 17 So.3d 621, 2009 Miss. App. LEXIS 609 (Miss. Ct. App. 2009).

Defendant in capital murder trial was not prejudiced by trial judge’s denial of his motion for recusal, though trial judge’s former law firm had represented victim in divorce action, trial judge’s nephew who was member of same law firm represented victim’s estate and victim’s daughter, and victim’s daughter was witness against defendant at trial; there was nothing in manner trial judge presided over trial which indicated prejudice to defendant, and there was no evidence of any financial arrangements between trial judge and his former law firm. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

A circuit court judge should have recused himself in a medical malpractice action against a physician and a hospital where the judge had previously acted as counsel for the hospital, and the physician had been hired by the hospital during the time of the judge’s representation. Collins v. Joshi, 611 So. 2d 898, 1992 Miss. LEXIS 795 (Miss. 1992).

A judge would be disqualified from ruling on a defendant’s motion for an evidentiary hearing under the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seg.) where the judge was also the district attorney who signed the indictment. Moore v. State, 573 So. 2d 688, 1990 Miss. LEXIS 782 (Miss. 1990).

Evidence that a Supreme Court justice had served as Attorney General at the time the defendant was extradited from another state was insufficient to overcome the presumption that the justice was qualified and unbiased, where the justice had no personal involvement in or actual knowledge of the defendant’s case while he was Attorney General, the Office of Attorney General exercised no responsibility in the defendant’s trial, the involvement of the Office of Attorney General in the actual extradition of the defendant was minimal, and the Attorney General’s entrance into the case arose after being noticed by the filing of the defendant’s appeal which occurred only one week prior to the justice’s departure from the Office of Attorney General. Turner v. State, 573 So. 2d 657, 1990 Miss. LEXIS 792 (Miss. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2522 (U.S. 1991).

A judge who had served as the prosecutor at the time of the defendant’s indictment should have disqualified himself; the very functions involved in the performance of the positions of judge and prosecutor are contradictory and no person can be considered to be impartial while that person is also acting as a partisan. Since the judge failed to disqualify himself, the defendant was deprived of due process, which includes a fair and impartial trial. Jenkins v. State, 570 So. 2d 1191, 1990 Miss. LEXIS 701 (Miss. 1990).

Chancellor, who had represented one of the parties in 2 separate uniform reciprocal enforcement support act complaints in his official capacity as county attorney, was not required to disqualify himself in a child custody case. Rutland v. Pridgen, 493 So. 2d 952, 1986 Miss. LEXIS 2594 (Miss. 1986).

The statute does not disqualify a judge who had been the district attorney and had drawn the statutory indictment for murder upon which defendant was tried. Kirby v. State, 78 Miss. 175, 28 So. 846, 1900 Miss. LEXIS 104 (Miss. 1900).

Where the prisoner was tried and convicted, but his sentence was postponed, and the judge who tried the case went out of office, and one who had been consulted and retained as counsel for the state by the prosecuting attorney succeeded to the bench, the latter can pass sentence. Thomas v. State, 6 Miss. 20, 1840 Miss. LEXIS 56 (Miss. 1840).

7. Consent.

Circuit judge, who as an assistant district attorney had participated in a suspect’s prosecution, was disqualified from ruling on the suspect’s motion for postconviction relief and should have recused himself because, even assuming that the suspect had effectively waived the judge’s disqualification to preside over his guilty plea hearing, that waiver did not extend to the postconviction proceeding, which was separate and distinct from the underlying criminal proceeding. Holmes v. State, 966 So. 2d 858, 2007 Miss. App. LEXIS 668 (Miss. Ct. App. 2007).

Denial of the mother’s motion to recuse the judge was proper where the mother brought up the issue of recusal of the judge after the case was decided against her; therefore, she effectively acquiesced to the judge hearing her case. Watts v. Watts, 854 So. 2d 11, 2003 Miss. App. LEXIS 143 (Miss. Ct. App.), cert. denied, 859 So. 2d 392, 2003 Miss. LEXIS 378 (Miss. 2003).

Consent of parties presumed if qualifications of judge not questioned before final judgment, but objection may be made on motion for new trial if attorneys did not know of disqualification. Yazoo & M. V. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 1912 Miss. LEXIS 28 (Miss.), modified, 102 Miss. 56, 58 So. 834 (Miss. 1912), limited, Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 1920 Miss. LEXIS 97 (Miss. 1920).

8. Proceedings for disqualification.

While attorney may rightfully, in cases where he or she thinks judge’s relations would result to injury of defendant, move for recusation of judge, Supreme Court, in such case, will look to whole trial and pass upon questions on appeal in light of completed trial; every act and movement had during entire trial will be considered, and if Supreme Court is unable to find that rulings have been prejudicial to defendant, it will not reverse. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

When judge is not disqualified under constitutional or statutory provisions, propriety of his or her sitting is question to be decided by judge and is subject to review only in case of manifest abuse of discretion. Hunter v. State, 684 So. 2d 625, 1996 Miss. LEXIS 288 (Miss. 1996).

Motion for new trial charging presiding judge with being unfair and partial, and charging him with political bias and race prejudice, and asking judge to recuse himself in order that movant might have a fair and competent judge, in absence of explanations, held contemptuous. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

Ex parte affidavits inadmissible as evidence on recusation motion. Cashin v. Murphy, 138 Miss. 853, 103 So. 787, 1925 Miss. LEXIS 93 (Miss. 1925).

Judge, attacked by recusation motion, may hear and determine it instead of surrendering bench to another to pass thereon. Cashin v. Murphy, 138 Miss. 853, 103 So. 787, 1925 Miss. LEXIS 93 (Miss. 1925).

Suggestion of disqualification must be made before trial unless knowledge is acquired subsequently. Shireman v. Wildberger, 125 Miss. 499, 87 So. 657, 1921 Miss. LEXIS 123 (Miss. 1921).

OPINIONS OF THE ATTORNEY GENERAL

A practicing attorney selected as a special judge for service on the Supreme Court may remain of counsel in all cases presently pending in the state and federal courts. However, pursuant to §9-1-25 which applies to any judge of the Supreme Court, a special judge may not be engaged in the practice of law and, therefore, may not practice in any of the state courts during his tenure as a special judge. A special judge may, pursuant to the same statute, practice in the federal courts in any case in which he or she was engaged when appointed. Hurst, May, 21, 2004, A.G. Op. 04-0180.

RESEARCH REFERENCES

ALR.

Interest of judge in an official or representative capacity, or relationship of judge to one who is a party in an official or representative capacity, as disqualification. 10 A.L.R.2d 1307.

Relationship to attorney as disqualifying judge. 50 A.L.R.2d 143.

Disqualification of judge in contempt proceedings involving himself or court of which he is member. 64 A.L.R.2d 600.

Prior representation or activity as attorney or counsel as disqualifying judge. 72 A.L.R.2d 443.

Time for asserting disqualification of judge, and waiver of disqualification. 73 A.L.R.2d 1238.

Intervenor’s right to disqualify judge. 92 A.L.R.2d 1110.

Disqualification of judge because of his or another’s holding or owning stock in corporation involved in litigation. 25 A.L.R.3d 1331.

Disqualification of judge, justice of the peace, or similar judicial officer for pecuniary interest in fines, forfeitures, or fees payable by litigants. 72 A.L.R.3d 375.

Membership in fraternal or socil club or order affected by a case as ground for disqualification of judge. 75 A.L.R.3d 1021.

Prior representation or activity as prosecuting attorney as disqualifying judge from sitting or acting in criminal case. 16 A.L.R.4th 550.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence. 37 A.L.R.4th 1004.

Disqualification of judge because of political association or relation to attorney in case. 65 A.L.R.4th 73.

Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant. 72 A.L.R.4th 651.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

Prior Representation or Activity as Prosecuting Attorney as Disqualifying Judge From Sitting or Acting in Criminal Case. 85 A.L.R.5th 471.

Disqualification of Judge for Having Decided Different Case Against Litigant – State Cases. 85 A.L.R.5th 547.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution. 91 A.L.R.5th 437.

Construction of provision in Federal Criminal Procedure Rule 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant’s consent. 3 A.L.R. Fed. 420.

Disqualification of judge under 28 USCS § 455(b)(5)(iii), where judge or his or her spouse, or certain of their relatives, is known to have an interest that could be affected by the proceeding. 54 A.L.R. Fed. 855.

Disqualification of judge under 28 USCS § 455(b)(4), providing for disqualification where judge has financial or other interest in proceeding. 55 A.L.R. Fed. 650; 163 A.L.R. Fed. 575.

Am. Jur.

15 Am. Jur. Pl & Pr Forms (Rev), Judges, Form 31.1 (Affidavit – In support of petition to disqualify judge – partiality of judge).

CJS.

48A C.J.S., Judges §§ 137, 138, 264-266, 290.

Editor’s Notes —

Former §9-1-13 permitted the commission of special judges to fill in for sick or disabled circuit judges, county judges, or chancellors.

Former §9-1-14 permitted the reactivation of retired chancery, circuit, or county judges in emergency situations.

Former §9-1-15 permitted the governor to appoint full-time replacement chancery and circuit judges for periods of extended disability of sitting judges.

For present similar provisions, see §9-1-105.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Amendment Notes —

The 2009 amendment added the last paragraph.

Cross References —

Authority of impaneling judge of state grand jury to punish for contempt as provided in this section, see §13-7-21.

Contempt for refusal to present books, records, or invoices reflecting transactions involving the purchase, gift, or sale of tobacco by persons subject to tax, see §27-69-35.

Disobedience of final order in consumer protection proceeding constituting contempt, see §75-24-17.

Court’s authority in proper cases to adjudge party in contempt, see Miss. R. Civ. P. 70.

Circuit Court may punish non-compliance with Uniform Circuit Court Rules as contempt, see Uniform Circuit and County Court Rule 1.03.

Inapplicability of Mississippi Rules of Evidence in contempt proceedings, see Miss. R. Evid. 1101.

JUDICIAL DECISIONS

1. In general.

2. Contempt, what constitutes.

3. —Constructive contempt.

4. Rights of defendant.

5. Proceedings for contempt.

6. —Information.

7. —Evidence.

8. —Judgment.

9. —Review.

1. In general.

Chancery court could hold a mother in contempt pursuant to Miss. Code Ann. §9-1-17 because her failure to pay her portion of a car lease constituted a direct violation of the chancery court’s order. Mercier v. Mercier, 11 So.3d 1283, 2009 Miss. App. LEXIS 365 (Miss. Ct. App. 2009).

Where a decedent’s daughter was held in contempt for failing to inventory and turn over to decedent’s wife all assets in her possession that belonged to the decedent’s estate, the contempt was civil and not criminal because: (1) the contempt order’s primary purpose was to enforce the wife’s rights to possess the decedent’s property, and (2) the daughter had been ordered not to pay a fine to the court, but only to pay the wife’s attorney’s fees. Fisher v. Patton (In re Estate of Patton), 971 So. 2d 1281, 2008 Miss. App. LEXIS 10 (Miss. Ct. App. 2008).

The limits of the statute apply only where the sanction is imposed for direct contempt; the limits do not apply to constructive contempt. Wyssbrod v. Wittjen, 798 So. 2d 352, 2001 Miss. LEXIS 23 (Miss. 2001).

It was proper for a chancellor to find a father not in contempt for failure to pay the full amount of child support required where the father filed for a modification of child support before the children’s mother filed the motion for contempt concerning the arrearage in child support payments. Thurman v. Thurman, 559 So. 2d 1014, 1990 Miss. LEXIS 185 (Miss. 1990).

A petition to hold a county board of supervisors in contempt for failure to comply with a consent decree was a petition for criminal contempt rather than civil contempt, where the alleged contempt did not consist of the defendants refusing to do any affirmative act required but rather doing that which had been prohibited, and the petition recited that prior acts of the defendants justified an increase in previously imposed criminal sanctions “in order to deter such defendants from further violations.” Common Cause of Mississippi v. Smith, 548 So. 2d 412, 1989 Miss. LEXIS 362 (Miss. 1989).

The indemnitor of surety company, which had furnished payment and performance bonds in connection with construction contracts, held in civil contempt for refusal to comply with decree of state chancery court requiring him to provide financial statements and disclose the whereabouts of his assets, and whose refusal was based on the ground that compliance with the decree would result in self-incrimination under the fourth and fifth amendments to the federal constitution, was directed to furnish the required information if granted immunity from prosecution under state criminal statutes. Morgan v. Thomas, 448 F.2d 1356, 1971 U.S. App. LEXIS 8009 (5th Cir. Miss. 1971), cert. denied, 405 U.S. 920, 92 S. Ct. 948, 30 L. Ed. 2d 790, 1972 U.S. LEXIS 3636 (U.S. 1972).

This section [Code 1942 § 1656] does not apply to the scope of punishment for contempt occurring while the court is not sitting, the applicable section under these circumstances is Code 1942, § 2562, applying to offenses for which a penalty is not provided elsewhere by statute. Melvin v. State, 210 Miss. 132, 48 So. 2d 856, 1950 Miss. LEXIS 329 (Miss. 1950).

This section [Code 1942 § 1656] defines the extent of punishment only while the court is sitting, but it does not exclude the power to punish for contempt while the court is not sitting. Melvin v. State, 210 Miss. 132, 48 So. 2d 856, 1950 Miss. LEXIS 329 (Miss. 1950).

Contrition and apology serve only to ameliorate the offense of contempt and to mitigate the punishment. Brannon v. State, 202 Miss. 571, 29 So. 2d 916, 1947 Miss. LEXIS 319 (Miss. 1947).

Provision empowering the court to punish any person for breach of any decree or order of the court, by fine or imprisonment, or both, provides for criminal contempt, while a provision providing that, if any person refuses to obey or perform any order or judgment of the court, the court shall have power to fine and imprison him until the order or judgment is complied with, provides for civil or quasi criminal contempt; the order for imprisonment in the former case is for a past and completed act or omission, is punitory and must be suffered, and its purpose is to preserve the power and vindicate the dignity of the court; in the latter case the punishment is coercive and the contemnor may discharge himself by compliance with the terms of the decree violated, and its purpose is to compel obedience to its decrees. Evans v. Evans, 193 Miss. 468, 9 So. 2d 641, 1942 Miss. LEXIS 116 (Miss. 1942).

2. Contempt, what constitutes.

Chancellor erred in finding a father in contempt because the lack of specificity in the parties’ property-settlement agreement, combined with the mother’s failure to timely submit the invoices or bills, made it impossible for the father to pay his half of the expenses, and the findings that the father failed to pay child support and that he had overpaid child support were incompatible. Jones v. Jones, 265 So.3d 195, 2019 Miss. App. LEXIS 58 (Miss. Ct. App. 2019).

Husband was not in contempt for failure to comply with a modified child support order; the order made it virtually impossible for the husband to be held in contempt by allowing him to estimate and subtract college expenses from the monthly support obligation during the summer months. Weeks v. Weeks, 29 So.3d 80, 2009 Miss. App. LEXIS 860 (Miss. Ct. App. 2009).

Husband was not in contempt for failing to provide a wife with evidence that he had complied with a previous order to maintain the wife as an irrevocable beneficiary on a life insurance policy, because the order only required him to maintain the coverage, not to provide her with proof of coverage. Weeks v. Weeks, 29 So.3d 80, 2009 Miss. App. LEXIS 860 (Miss. Ct. App. 2009).

Chancery court’s refusal to hold the husband in contempt was not error where the wife failed to show that he had not maintained a life insurance policy with her as an irrevocable beneficiary. Weeks v. Weeks, 2008 Miss. App. LEXIS 187 (Miss. Ct. App. Apr. 1, 2008), op. withdrawn, sub. op., 29 So.3d 80, 2009 Miss. App. LEXIS 860 (Miss. Ct. App. 2009).

Contemnor failed to comply with divorce decree, and a chancellor did not commit manifest error or abuse the chancery court’s discretion by incarcerating the contemnor, as the chancellor’s decision was supported by the record, which included the chancellor’s findings that the contemnor was not credible; further, the divorce decree was not ambiguous, so the contemnor’s argument that the contemnor could not obey because of the decree’s alleged vagueness was rejected. Stribling v. Stribling, 960 So. 2d 556, 2007 Miss. App. LEXIS 1 (Miss. Ct. App. 2007).

Through the court reporter’s repeated failure to complete trial transcripts in a timely manner, the court reporter had a serious negative effect on the efficiency of the court; pursuant to Miss. R. Governing Certified Ct. Reporters IX(A)(2), the court reporter was in willful constructive criminal contempt of the Mississippi Supreme Court for his repeated failure to comply with its orders and the Supreme Court revoked his court reporter certification and ordered him to pay all costs of the the contempt proceedings, including attorney’s fees and court reporter’s fees. In re Hoppock, 849 So. 2d 1275, 2003 Miss. LEXIS 342 (Miss. 2003).

A chancellor was “manifestly in error” when he found a mother in contempt of court for effectively curtailing the father’s court-ordered visitation rights with the parties’ daughter by moving to Alaska. The mother never ignored an order of the court since there was nothing in the court order that restricted her from moving to another state. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A former husband was properly held in contempt of court for failure to pay his former wife monies due for insurance premiums under the parties’ original divorce decree, which provided that the former wife was to purchase insurance on behalf of the parties’ children and that the former husband was to reimburse the former wife for the premium allocated to the parties’ son, in spite of the former husband’s arguments that he had obtained health insurance on the children’s behalf and should be absolved of any responsibility to reimburse the former wife for any insurance she obtained; the divorce judgment required the former husband to reimburse the former wife for the son’s premiums, which the former husband failed to do. Stevison v. Woods, 560 So. 2d 176, 1990 Miss. LEXIS 205 (Miss. 1990).

A father was not in contempt for failure to pay child support under an automatic adjustment clause of a property settlement agreement where the agreement was uncertain in that a genuine dispute existed over the amount owed, over the commencement year of the escalation clause, and over which consumer price index was to be utilized. Wing v. Wing, 549 So. 2d 944, 1989 Miss. LEXIS 443 (Miss. 1989).

Direct criminal contempt is one which takes place in very presence of judge, making all elements of offense personal knowledge, and such may be summarily punished without affidavit, pleading, or formal charges, and no evidence or proof other than court’s own knowledge is required to punish such contempt. Varvaris v. State, 512 So. 2d 886, 1987 Miss. LEXIS 2783 (Miss. 1987).

Appellant, who contended that certain household goods and an automobile which had been in the possession of the deceased actually belonged to his wife and his principal, respectively, was not guilty of contempt 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).

Contempt is complete when there is a deliberate purpose or calculation to corrupt administration of justice and that purpose or calculation is accompanied by definite overt act or declaration on part of contemnor, designed to carry that purpose or calculation into effect; and failure of design becomes immaterial, except as it may have some place in considering punishment to be inflicted. Jones v. State, 208 Miss. 762, 45 So. 2d 576, 1950 Miss. LEXIS 294 (Miss. 1950).

One who attempts to bribe or influence decision of juror is guilty of contempt of court, regardless of whether act which constitutes contempt is committed in or out of presence of court, or whether juror is actually sworn on particular case or is only member of panel from which trial jury is to be selected. Jones v. State, 208 Miss. 762, 45 So. 2d 576, 1950 Miss. LEXIS 294 (Miss. 1950).

Person is guilty of contempt of court when he approaches prospective juror, who has been summoned for trial of murder case, at juror’s home and advises juror that there are some things in favor of defendant that court will not permit to go to jury, that deceased had been running over defendant, but that fact would be kept from jury and if it wasn’t brought out juror should give defendant a break. Jones v. State, 208 Miss. 762, 45 So. 2d 576, 1950 Miss. LEXIS 294 (Miss. 1950).

Where defendant, as a witness in a criminal prosecution, had the appearance of being intoxicated on the witness stand, was chewing gum and smoking a cigarette, and upon retiring from the witness stand faced the district attorney, and in close proximity to the judge’s bench, gritted his teeth at the district attorney and scowled at him in a hostile and threatening manner and said “I’ll see you when you come down,” conduct constituted contempt. Estes v. State, 192 Miss. 400, 6 So. 2d 132, 1942 Miss. LEXIS 28 (Miss. 1942).

Any words or conduct which impedes, embarrasses, obstructs, defeats or corrupts the administration of courts of justice or which to a substantial degree is calculated, or would tend so to do, is a contempt and within the protection of the rule are included all those who are actually a part of the official personnel of the court and when the prohibited language or conduct has a real relation to the discharge by them of official functions appertaining to the court as a court, and so long as the protected person is acting in a lawfully authorized manner; and it is immaterial that the prohibited language or conduct had no successful eventuation. Estes v. State, 192 Miss. 400, 6 So. 2d 132, 1942 Miss. LEXIS 28 (Miss. 1942).

The right of the court to enforce respect for itself begins where the right of the citizen to speak ends, and the line of demarcation is fixed at that point where that which is spoken or published is calculated to obstruct the functioning processes of the court or to impede or impair the efficiency of its machinery then in motion, it being immaterial whether the obstruction is by force, insult, persuasion or disobedience, whether committed by act or word, or whether it affects the judge, the grand or petit jury, or any person made part of its personnel by its process. Sullens v. State, 191 Miss. 856, 4 So. 2d 356, 1941 Miss. LEXIS 195 (Miss. 1941).

The citizens may reasonably criticize even the court or the judges thereof; and the exercise of this right may embarrass the particular functionary; it may depreciate the effectiveness of our legal procedure, yet so long as it pulls up short of the obstruction or impediment of the machinery of the court then in motion, it is free from interference by the court. Sullens v. State, 191 Miss. 856, 4 So. 2d 356, 1941 Miss. LEXIS 195 (Miss. 1941).

A newspaper article, stating that a good show was then being staged in the Hinds County Circuit Court room, that on the stage or screen it would be well worth the price of admission, and that statutes ought to provide an admission fee for court rooms when big human dramas were being staged to help in defraying court expenses, when viewed through the lens of the constitutional provision protecting freedom of speech, did not constitute contempt nor indicate any reasonable tendency to obstruct, embarrass or hinder the court in the proper exercise of its functions. Sullens v. State, 191 Miss. 856, 4 So. 2d 356, 1941 Miss. LEXIS 195 (Miss. 1941).

Filing motion for new trial is not contempt. Ex parte Redmond, 156 Miss. 582, 126 So. 485, 1930 Miss. LEXIS 208 (Miss. 1930).

“Direct contempt” is language or conduct which interferes with orderly administration of justice, and may be an open insult in the presence of the court, or defiance or resistance of the court’s authority. Neely v. State, 98 Miss. 816, 54 So. 315, 1910 Miss. LEXIS 128 (Miss. 1910).

Being in the courtroom while drunk does not constitute contempt where judge knows nothing about it and there is no interference with the court. Neely v. State, 98 Miss. 816, 54 So. 315, 1910 Miss. LEXIS 128 (Miss. 1910).

3. —Constructive contempt.

Through the court reporter’s repeated failure to complete trial transcripts in a timely manner, the court reporter had a serious negative effect on the efficiency of the court; pursuant to Miss. R. Governing Certified Ct. Reporters IX(A)(2), the court reporter was in willful constructive criminal contempt of the Mississippi Supreme Court for his repeated failure to comply with its orders and the Supreme Court revoked his court reporter certification and ordered him to pay all costs of the the contempt proceedings, including attorney’s fees and court reporter’s fees. In re Hoppock, 849 So. 2d 1275, 2003 Miss. LEXIS 342 (Miss. 2003).

The limits of this section upon the punishment that may be imposed for direct contempt of court are inapplicable to a constructive contempt. Wood v. State, 227 So. 2d 288, 1969 Miss. LEXIS 1343 (Miss. 1969).

Misrepresentations and disrespectful language contained in a bill of exceptions constitute only a constructive, and not a direct, contempt of court. Wood v. State, 227 So. 2d 288, 1969 Miss. LEXIS 1343 (Miss. 1969).

Where a defendant, found to have committed constructive contempt, was sentenced to six months confinement, and to pay a $500 fine, the offense of which he was convicted was petty, and the court did not commit error in refusing to grant the defendant a trial by jury. Hinton v. State, 222 So. 2d 690, 1969 Miss. LEXIS 1551 (Miss. 1969).

This section [Code 1942 § 1656], in referring to direct contempt, does not exclude the power to punish for constructive contempt. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

To warrant a conviction for constructive contempt the State must show beyond a reasonable doubt that the conduct of the alleged contemnor would have a reasonably real and substantial tendency to impede the administration of justice. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

Constructive contempts of court are confined to cases pending at the time of the publication, and a case decided cannot be considered pending because it is subject to be reopened by the court before the end of the term. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

A statement to the press, after a conviction and sentence of another, characterizing the conviction as “a mockery of justice”, “in a courtroom of segregationists apparently resolved to put [defendant, a Negro] legally away”, held not to constitute constructive contempt. Evers v. State, 241 Miss. 560, 131 So. 2d 653, 1961 Miss. LEXIS 374 (Miss. 1961).

Evidence that the accused, who had not on any prior occasion been before a court, was in the witness room when another witness came in and announced that the case “was off,” whereupon the accused went home and failed to appear at trial time the next morning, but, upon being brought into the court room within 45 minutes, after an attachment was issued, stated that he did not act intentionally, was not sufficient to prove that the accused was guilty of constructive criminal contempt. Ridgeway v. State, 232 Miss. 588, 100 So. 2d 99, 1958 Miss. LEXIS 307 (Miss. 1958).

This section [Code 1942 § 1656] defines the extent of the punishment only while the court is sitting, but it does not exclude the power to punish for contempt while the court is not sitting, and the power to deal with constructive contempts is derived from the inherent power of the court. Young v. State, 230 Miss. 525, 93 So. 2d 452, 1957 Miss. LEXIS 393 (Miss. 1957).

Conduct of defendant which is calculated to influence juror interfering with proper function of jury as part of court, and shows intention to obstruct justice is constructive contempt of court. Yarber v. State, 208 Miss. 806, 45 So. 2d 596, 1950 Miss. LEXIS 302 (Miss. 1950).

Defendant is guilty of constructive contempt of court, when, knowing that juror was on special venire to try criminal case, defendant went to juror’s home at night and told juror that he was friend of man to be tried, that his friend had made mistake and if juror would be as light on him as he possibly could without doing anything he thought he should not do, friend would try to repay juror some way or other. Yarber v. State, 208 Miss. 806, 45 So. 2d 596, 1950 Miss. LEXIS 302 (Miss. 1950).

Constructive contempt is any act done which tends to impede, degrade, obstruct, embarrass, interrupt, defeat or corrupt the administration of justice when the act is done beyond the presence of the court. Brannon v. State, 202 Miss. 571, 29 So. 2d 916, 1947 Miss. LEXIS 319 (Miss. 1947); Jones v. State, 208 Miss. 762, 45 So. 2d 576, 1950 Miss. LEXIS 294 (Miss. 1950).

Defendant may be punished for constructive contempt although liable to criminal prosecution for his acts. Durham v. State, 97 Miss. 549, 52 So. 627, 1910 Miss. LEXIS 252 (Miss. 1910).

4. Rights of defendant.

Defendant’s due process rights were not violated by a contempt conviction because a trial court, even though not required for direct contempt, gave defendant notice and conducted a hearing where she was allowed to present evidence. In re Hampton, 919 So. 2d 949, 2006 Miss. LEXIS 18 (Miss.), cert. denied, 547 U.S. 1131, 126 S. Ct. 2042, 164 L. Ed. 2d 784, 2006 U.S. LEXIS 3868 (U.S. 2006).

Inability to pay to avoid incarceration is a continuing defense to civil contempt since imprisonment does not accomplish the purpose of the civil contempt decree, but merely punishes. A litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration. Thus, when a chancellor suspended a contemnor’s incarceration and granted her an additional month to pay the judgment, the suspension carried with it the right of the contemnor prior to the hearing to determine whether or not she should be incarcerated and an opportunity to again offer proof on the defense to the incarceration of inability to pay, and it was reversible error for the chancellor to refuse to hear such proof. Stewart v. Wilkinson, 566 So. 2d 210, 1990 Miss. LEXIS 482 (Miss. 1990).

Individual held in prison for civil contempt was improperly held without being afforded opportunity to prove present inability to pay. defendant may avoid judgment of contempt by establishing that he is without present ability to discharge obligation, he has burden of proving his inability to pay, and such showing must be made with particularity and not in general terms. Where contemnor is unable to pay, even if that present inability is due to his misconduct, imprisonment cannot accomplish purpose of civil contempt decree, which is to compel obedience. Jones v. Hargrove, 516 So. 2d 1354, 1987 Miss. LEXIS 2950 (Miss. 1987).

As a matter of due process, a defendant who, during the course of representing himself in a state prosecution, repeatedly engaged in disruptive conduct and denounced, insulted and slandered the trial judge, was entitled to a public trial before another judge on criminal contempt charges entered at the conclusion of the trial, and the trial judge erred in pronouncing the defendant guilty of 11 criminal contempts and sentencing him to 11 to 22 years thereon, after a jury verdict of guilty in the criminal trial, since marked personal feelings were evident on both sides. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532, 1971 U.S. LEXIS 89 (U.S. 1971).

Where defendant was arrested in October 1948, and he was arraigned at the following November term of county court, at which time he waived a trial by jury but there was a six-month delay between his arraignment and trial in May, 1949, the court in the exercise of its judicial discretion erred in not granting the defendant a trial by jury. Newton v. State, 211 Miss. 644, 52 So. 2d 488, 1951 Miss. LEXIS 394 (Miss. 1951).

Defendant in contempt is entitled to be informed of the nature and cause of the accusation, cannot be compelled to testify against himself, and is presumed innocent until proven guilty beyond reasonable doubt. Ramsay v. Ramsay, 125 Miss. 715, 88 So. 280, 1921 Miss. LEXIS 157 (Miss. 1921).

Punitive sentence may be imposed only after opportunity to defend. Ramsay v. Ramsay, 125 Miss. 715, 88 So. 280, 1921 Miss. LEXIS 157 (Miss. 1921).

Defendant not entitled to jury in contempt proceeding. O'Flynn v. State, 89 Miss. 850, 43 So. 82, 1906 Miss. LEXIS 97 (Miss. 1906).

5. Proceedings for contempt.

The determination of punishment for contempt-fine, imprisonment, both, or neither-is within the discretion of the chancellor; while §9-1-17 provides that all state courts have the power to imprison any person guilty of contempt, a court is not required to incarcerate any person found in contempt of court. Gebetsberger v. East, 627 So. 2d 823, 1993 Miss. LEXIS 532 (Miss. 1993).

Even where there has been established a prima facie case of contempt, the contemnor may avoid judgment of contempt by establishing that he or she is without present ability to discharge the obligation; if the contemnor raises this as a defense, he or she has the burden of proving his or her inability to pay, and this showing must be made with particularity. Gebetsberger v. East, 627 So. 2d 823, 1993 Miss. LEXIS 532 (Miss. 1993).

Only court contemned has jurisdiction to punish contemnor. Contempt was against Chancery Court of Lowndes County, and not Washington County, where Lowndes Chancery Judges recused themselves from cause, and Chancery Judge from Washington County was designated special judge to hear cause; contempt is affront to court, and not to judge as individual. Culpepper v. State, 516 So. 2d 485, 1987 Miss. LEXIS 2957 (Miss. 1987).

A state trial judge in whose courtroom a contemptuous act was allegedly committed by a civil rights worker, should recuse himself from hearing any later proceedings in the matter of the contempt charge, where it was said in affidavits submitted that the judge had previously made intemperate remarks concerning civil rights litigation generally, and where the judge had been a losing defendant in a civil rights suit filed by the alleged contemnor. Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d 423, 1971 U.S. LEXIS 35 (U.S. 1971).

A trial judge can only adjudge a witness in contempt and punish him for false swearing where he finds the witness guilty as a result of his own personal or judicial knowledge of the facts in regard to which the testimony has been given and knows beyond a reasonable doubt that the witness has wilfully and corruptly sworn falsely; otherwise, the procedure prescribed by Code 1942 § 2479, should be followed. McInnis v. State, 202 Miss. 715, 32 So. 2d 444, 1947 Miss. LEXIS 334 (Miss. 1947).

Contempt of court, based on attempt to intimidate witness, is offense against state, and prosecution must be in name of and on behalf of public. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

Statutes regulating venue of criminal trials generally not applicable to contempt proceedings. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

Proper procedure, where accused was charged by information with attempted bribery of witness, was taken by citing him, having him answer the charge, and then taking testimony offered in the matter. Durham v. State, 97 Miss. 549, 52 So. 627, 1910 Miss. LEXIS 252 (Miss. 1910).

6. —Information.

Information for contempt need not conclude against peace and dignity of state. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

Information for contempt held not void because of failure to state venue. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

Information for contempt held sufficient. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

7. —Evidence.

In wife’s contempt action against former husband, the wife presented no evidence that the husband issued 23 checks for child support, which the wife did not present to the bank for months, with fraudulent intent; rather, the record showed the wife rebuffed the husband’s efforts to make good on the checks, and wanted to file another complaint causing the husband yet more financial problems and emotional distress, and the wife was properly held in contempt. Broome v. Broome, 832 So. 2d 1247, 2002 Miss. App. LEXIS 858 (Miss. Ct. App. 2002).

Lower court judge’s ruling finding defendant in direct criminal contempt was proper, although judge admitted that he did not hear exactly what was said prior to defendant’s outburst of profanity, but did state that statements of defendant were directed assistant district attorney; court rejected defendant’s contention that all evidence presented at hearing indicated that defendant was merely repeating words which policeman said to his son upon his arrest, placing much emphasis on fact that state put no one on stand to refute testimony except assistant district attorney who simply stated that words spoken were directed to another assistant district attorney. Varvaris v. State, 512 So. 2d 886, 1987 Miss. LEXIS 2783 (Miss. 1987).

Trial court did not have sufficient facts before it to properly issue contempt order where Supreme Court’s review of record revealed no clear and explicit evidence that order placing defendants in contempt of court was well taken, and judgment of conviction did not contain material facts known to court constituting contempt. Mississippi Asso. of Educators v. Trustees of Jackson Municipal Separate School Dist., 510 So. 2d 123, 1987 Miss. LEXIS 2439 (Miss. 1987).

In civil contempt cases the weight and sufficiency of the evidence must be clear and convincing, and not beyond a reasonable doubt, as required in criminal cases. Masonite Corp. v. International Woodworkers of America, 206 So. 2d 171, 1967 Miss. LEXIS 1242 (Miss. 1967).

Sworn answer in constructive contempt proceedings does not preclude court from receiving evidence therein. O'Flynn v. State, 89 Miss. 850, 43 So. 82, 1906 Miss. LEXIS 97 (Miss. 1906).

8. —Judgment.

It was no error to imprison a father for not paying attorney’s fees ordered in contempt proceedings because (1) Miss. Code Ann. §9-1-17 gave a chancellor such authority, and (2) the father could have avoided a contempt finding by showing inability to pay with particularity. Vincent v. Rickman, 167 So.3d 245, 2015 Miss. App. LEXIS 125 (Miss. Ct. App. 2015).

Attorney fees, witness fees, and court reporter fees were properly imposed against an attorney who failed to attend a court-ordered hearing; she was properly fined and ordered to serve jail time under Miss. Code Ann. §9-1-17 for direct contempt, and the fees were awarded in a bifurcated proceeding. In re Hampton, 919 So. 2d 949, 2006 Miss. LEXIS 18 (Miss.), cert. denied, 547 U.S. 1131, 126 S. Ct. 2042, 164 L. Ed. 2d 784, 2006 U.S. LEXIS 3868 (U.S. 2006).

In direct contempt, judgment of conviction should contain material facts known to court constituting contempt. 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).

9. —Review.

A chancellor was without authority to give defendants fixed jail sentences and fines, having found the defendants guilty of civil contempt but not criminal contempt and, therefore, the sentences and fines had to be reversed, even though the chancellor was manifestly wrong in finding the defendants not guilty of criminal contempt, since the Supreme Court was powerless to reverse on the chancellor’s finding of not guilty of criminal contempt. Hinds County Bd. of Supervisors v. Common Cause of Mississippi, 551 So. 2d 107, 1989 Miss. LEXIS 719 (Miss. 1989).

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).

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 contempt conviction, 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 whether there has been an actual contempt of court. 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).

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).

If witness, after testifying in murder case, committed for contempt in presence of jury, reversal will be proper. Walker v. State, 143 Miss. 421, 108 So. 899, 1926 Miss. LEXIS 276 (Miss. 1926).

Request of district attorney to hold witness for contempt, declined by court, not reversible error. Walker v. State, 143 Miss. 421, 108 So. 899, 1926 Miss. LEXIS 276 (Miss. 1926).

Conviction for contempt of court based on attempted intimidation of witness not reversed because attempt failed. Prine v. State, 143 Miss. 231, 108 So. 716, 1926 Miss. LEXIS 260 (Miss. 1926).

RESEARCH REFERENCES

ALR.

Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous. 12 A.L.R.2d 1059.

Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner. 14 A.L.R.2d 580.

Bail jumping after conviction, failure to surrender or to appear for sentencing, and the like, as contempt. 34 A.L.R.2d 1100.

Limitation statute applicable to criminal contempt proceedings. 38 A.L.R.2d 1131.

Necessity of affidavit or sworn statement as foundation for constructive contempt. 41 A.L.R.2d 1263.

Assaulting, threatening, or intimidating witness as contempt of court. 52 A.L.R.2d 1297.

Sufficiency of notice to, or service upon, contemnor’s attorney in civil contempt proceedings. 60 A.L.R.2d 1244.

Who may institute civil contempt proceedings. 61 A.L.R.2d 1083.

Published article or broadcast as direct contempt of court. 69 A.L.R.2d 676.

Court’s power to punish for contempt a child within the age group subject to jurisdiction of juvenile court. 77 A.L.R.2d 1004.

Use of affidavit to establish contempt. 79 A.L.R.2d 657.

Power to base separate contempt prosecutions or punishments on successive refusals to respond to same or similar questions. 94 A.L.R.2d 1246.

False or inaccurate report of judicial proceedings as contempt. 99 A.L.R.2d 440.

Circumstances under which one court can punish a contempt against another court. 99 A.L.R.2d 1100.

Delay in adjudication of contempt committed in the actual presence of court as affecting court’s power to punish contemnor. 100 A.L.R.2d 439.

Interference with enforcement of judgment in criminal or juvenile delinquent case as contempt. 8 A.L.R.3d 657.

Release of information concerning forthcoming or pending trial as ground for contempt proceeding or other disciplinary measures against member of the bar. 11 A.L.R.3d 1104.

Attack on judiciary as a whole as indirect contempt. 40 A.L.R.3d 1204.

Defense of entrapment in contempt proceedings. 41 A.L.R.3d 418.

Allowance of attorneys’ fees in civil contempt proceedings. 43 A.L.R.3d 793.

Failure of party or his attorney to appear at pretrial conference. 55 A.L.R.3d 303.

Attorney’s addressing allegedly insulting remarks to court during course of trial as contempt. 68 A.L.R.3d 273.

Conduct of attorney in connection with making objections or taking exceptions as contempt of court. 68 A.L.R.3d 314.

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

Power of court to impose standard of personal appearance or attire. 73 A.L.R.3d 353.

Right of injured party to award of compensatory damages or fine in contempt proceedings. 85 A.L.R.3d 895.

Oral court order implementing prior written order or decree as independent basis of charge of contempt within contempt proceedings based on violation of written order. 100 A.L.R.3d 889.

Attorney’s failure to attend court, or tardiness, as contempt. 13 A.L.R.4th 122.

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.

Attorney’s use of objectionable questions in examination of witness in state judicial proceeding as contempt of court. 31 A.L.R.4th 1279.

Failure to rise in state courtroom as constituting criminal contempt. 38 A.L.R.4th 563.

Intoxication of witness or attorney as contempt of court. 46 A.L.R.4th 238.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order. 72 A.L.R.4th 298.

Abuse or misuse of contempt power as ground for removal or discipline of judge. 76 A.L.R.4th 982.

Contempt: state court’s power to order indefinite coercive fine or imprisonment to exact promise of future compliance with court’s order-anticipatory contempt. 81 A.L.R.4th 1008.

Attorney’s argument as to evidence previously ruled inadmissible as contempt. 82 A.L.R.4th 886.

Holding jurors in contempt under state law. 93 A.L.R.5th 493.

Violation of automatic stay provisions of 1978 Bankruptcy Code (11 USCS § 362) as contempt of court. 57 A.L.R. Fed. 927.

Attorney’s conduct as justifying summary contempt order under Rule 42(a) of the Federal Rules of Criminal Procedure.58 A.L.R. Fed. 22.

Participation of private counsel for beneficiary of court order allegedly violated by defendant, in prosecution of federal criminal contempt proceeding. 96 A.L.R. Fed. 519.

Am. Jur.

17 Am. Jur. 2d, Contempt §§ 199 et seq.

CJS.

17 C.J.S., Contempt §§ 69 et seq.

Editor’s Notes —

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

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

Procedure for petitioning for remedial writs in supreme court, see Miss. R. App. P. 21.

JUDICIAL DECISIONS

1. In general.

2. Supersedeas.

3. Certiorari.

4. Coram nobis.

5. Prohibition.

6. Injunction.

7. Other writs and remedies.

1. In general.

The procedural availability of remedial writ is proper to promote judicial efficiency and economy with respect to determination of whether the defendant’s constitutional right to have trial conducted in the “county where the offense was committed,” which was waived at his first trial, may be reinstated after appellate reversal. State v. Caldwell, 492 So. 2d 575, 1986 Miss. LEXIS 2531 (Miss. 1986).

No appeal may be taken from the court’s refusal to set aside a transfer made under this section [Code 1942 § 1657]. McMahan v. Adult Membership Boards of Phi Kappa, etc., 244 Miss. 692, 145 So. 2d 692, 1962 Miss. LEXIS 497 (Miss. 1962).

Appeal from transfer in vacation from a circuit to a chancery court held to have been improvidently granted. McMahan v. Adult Membership Boards of Phi Kappa, etc., 244 Miss. 692, 145 So. 2d 692, 1962 Miss. LEXIS 497 (Miss. 1962).

This section [Code 1942 § 1657], providing for remedial writs grantable by supreme and circuit judges, deals solely with original jurisdiction. Alexander v. Johnson, 165 Miss. 721, 138 So. 329, 1931 Miss. LEXIS 321 (Miss. 1931).

2. Supersedeas.

Where attempted appeal from order granting temporary injunction was abortive, Supreme Court judge could not grant writ of supersedeas under this section [Code 1942 § 1657]. Alexander v. Johnson, 165 Miss. 721, 138 So. 329, 1931 Miss. LEXIS 321 (Miss. 1931).

Supreme Court, on motion for supersedeas, will not pass on matters further than necessary to determine motion. Alabama & V. R. Co. v. Jackson & E. R. Co., 129 Miss. 437, 91 So. 902, 1922 Miss. LEXIS 34 (Miss. 1922).

The terms of granting a supersedeas may be fixed by the judge who grants it. Kramer v. Holster, 55 Miss. 243, 1877 Miss. LEXIS 130 (Miss. 1877).

3. Certiorari.

Writ of certiorari to review order of supervisors 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).

4. Coram nobis.

Although the refusal by the circuit judge to issue a writ of coram nobis is not an appealable action the Supreme Court will consider the petition in banc in a regular term on its merits as being addressed to the inherent constitutional powers of the court in its revisory capacity with reference to a case pending before it. Wetzel v. State, 225 Miss. 450, 76 So. 2d 188, 76 So. 2d 194, 76 So. 2d 846, 78 So. 2d 774, 84 So. 2d 429, 1954 Miss. LEXIS 607, 1954 Miss. LEXIS 608, 1955 Miss. LEXIS 601, 1955 Miss. LEXIS 602, 1956 Miss. LEXIS 396, 1957 Miss. LEXIS 583 (Miss. 1957).

Refusal of Supreme Court to grant an appeal from trial court’s refusal to grant writ of error coram nobis did not leave petitioner without further remedy, since petitioner could apply to judge of Supreme Court for such writ. Buckler v. State, 173 Miss. 350, 161 So. 683, 1935 Miss. LEXIS 224 (Miss. 1935).

Writ of error coram nobis may be granted by judges of Supreme Court, although trial judge refused to grant writ and although writ is not in aid of appellate jurisdiction of Supreme Court, since writ is remedial. Buckler v. State, 173 Miss. 350, 161 So. 683, 1935 Miss. LEXIS 224 (Miss. 1935).

5. Prohibition.

The Supreme Court has original jurisdiction to issue a writ of prohibition. State v. Maples, 402 So. 2d 350, 1981 Miss. LEXIS 2151 (Miss. 1981).

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).

Writ of prohibition cannot be used to prevent prosecution for violation of valid ordinance. Hurley v. Corinth, 97 Miss. 396, 52 So. 695, 1910 Miss. LEXIS 264 (Miss. 1910).

One whose business has been closed under prosecution for violation of void ordinance has no other adequate remedy and is entitled to writ of prohibition. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 1908 Miss. LEXIS 177 (Miss. 1908).

6. Injunction.

After the circuit court signed an order directing a chancery clerk to issue the injunction, the filing of the petition and order and the docketing of the case in the circuit court confers no jurisdiction on the circuit court. McMahan v. Adult Membership Boards of Phi Kappa, etc., 244 Miss. 692, 145 So. 2d 692, 1962 Miss. LEXIS 497 (Miss. 1962).

Chancery court has jurisdiction to hear in vacation application for a mandatory injunction. Stigall v. Sharkey County, 197 Miss. 307, 20 So. 2d 664, 1945 Miss. LEXIS 291 (Miss. 1945).

If chancellor of district having jurisdiction of receivership improperly refuses injunction writ, judge of Supreme Court on proper showing will issue writ to preserve status quo of case until chancellor passes on merits. Sullivan v. Hughes, 172 Miss. 744, 161 So. 316, 1935 Miss. LEXIS 184 (Miss. 1935).

7. Other writs and remedies.

This section (Code 1871 § 2267) does not confer upon the circuit court power to appoint a receiver in chancery. Alexander v. Manning, 58 Miss. 634, 1881 Miss. LEXIS 13 (Miss. 1881).

RESEARCH REFERENCES

ALR.

Contempt: state court’s power to order indefinite coercive fine or imprisonment to exact promise of future compliance with court’s order-anticipatory contempt. 81 A.L.R.4th 1008.

Editor’s Notes —

Former §9-1-21 permitted judges of the circuit and county courts, as well as chancellors, to order writs of subpoena duces tecum in vacation.

Editor’s Notes —

On July 13, 1993, 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, 1993, ch. 518.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Election and terms of chancellor, see §9-5-1.

Election and terms of judge of the circuit court, see §9-7-1.

County judges being prohibited from practicing law, see §9-9-9.

JUDICIAL DECISIONS

1. In general.

2. Evidence.

3. Discipline.

1. In general.

Where a county judge had not willfully abused the privilege of filing new complaints while in office, the court adopted the commission’s recommendation that the judge be publicly reprimanded and that he be reinstated after his temporary suspension. Miss. Comm'n on Judicial Performance v. Osborne, 876 So. 2d 324, 2004 Miss. LEXIS 780 (Miss. 2004).

Since, pursuant to Miss Const of 1890, § 175, the only action a grand jury can take after investigating the conduct of a public officer is to return a presentment or indictment, it was necessary to expunge from a grand jury report all references to the nonjudicial conduct of a judge whose indictment was barred by the statute of limitations. Petition of Moore, 336 So. 2d 736, 1976 Miss. LEXIS 1520 (Miss. 1976).

2. Evidence.

Where a judge became involved in lease negotiations pertaining to a barge landing site for a county landfill, and advised one party to the lease on the benefits of dealing with the landfill and drafting the lease agreement himself, he violated Canons 1, 2 A, 2.B, 3 A(1), 3 C, 5 C(1) and 5 F, as well as §§9-1-25 and23-15-975. Mississippi Comm'n on Judicial Performance v. Jenkins, 725 So. 2d 162, 1998 Miss. LEXIS 436 (Miss. 1998).

3. Discipline.

Where a judge breached the peace during the repossession of an automobile jointly owned by the judge’s wife and mother-in-law, his conduct violated Miss. Code Jud. Conduct Canon 1; the Supreme Court of Mississippi suspended him for 180 days without compensation. The judge had a pattern of misconduct, as he had been disciplined in the past for practicing law as a judge in violation of Miss. Code Ann. §§9-1-25, §9-9-9. Miss. Comm'n on Judicial Performance v. Osborne, 977 So. 2d 314, 2008 Miss. LEXIS 69 (Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

A judge has six months to bring to a conclusion any cases from their prior private practice pending at the time of their election or appointment as Chancellor. After that six month period has expired further representation of a client would result in violation of this Section. Patterson, July 20, 1995, A.G. Op. #95-0438.

The statute prohibits an attorney from representing new social security cases and new bankruptcy cases while serving as a Justice of the Mississippi Supreme Court and also prevents the attorney from representing new federal cases in federal court. Easley, Jr., Feb. 1, 2001, A.G. Op. #2001-0044.

The statute prohibits a Justice of the Mississippi Supreme Court from practicing law before an administrative agency after assuming office; however, the Justice may appear in a federal court in a case in which he was engaged when elected or appointed to the Supreme Court. Easley, Jr., Feb. 1, 2001, A.G. Op. #2001-0044.

A Justice of the Mississippi Supreme Court may represent himself in a lawsuit in state courts as long as such representation does not constitute representation of any other party, individual, or entity, e.g., partnerships or professional corporations. Easley, Jr., Feb. 1, 2001, A.G. Op. #2001-0044.

A Mississippi Supreme Court Justice is prohibited from practicing law after taking office with the exception of continuing any representation of clients whose cases are in a federal court; however, a Supreme Court Justice may represent himself in a matter by presenting a motion to a court for payment of services rendered prior to becoming a Supreme Court Justice. Easley, Jr., Apr. 23, 2001, A.G. Op. #01-0216.

Once an attorney has concluded his or her service as a special judge, the prohibition of this section would no longer apply. Therefore, the attorney may return to the practice of law in all cases in which the attorney was designated as counsel of record before his selection as special judge. The length of the appointment’s term does not change this conclusion. Hurst, May, 21, 2004, A.G. Op. 04-0180.

A practicing attorney selected as a special judge for service on the Supreme Court may remain of counsel in all cases presently pending in the state and federal courts. However, pursuant to this section which applies to any judge of the Supreme Court, a special judge may not be engaged in the practice of law and, therefore, may not practice in any of the state courts during his tenure as a special judge. A special judge may, pursuant to the same statute, practice in the federal courts in any case in which he or she was engaged when appointed. Hurst, May, 21, 2004, A.G. Op. 04-0180.

RESEARCH REFERENCES

ALR.

Validity and application of state statute prohibiting judge from practicing law. 17 A.L.R.4th 829.

Judge’s previous legal association with attorney connected to current case as warranting disqualification. 85 A.L.R.4th 700.

Removal or discipline of state judge for neglect of, or failure to perform, judicial duties. 87 A.L.R.4th 727.

Cross References —

Appointment of a temporary coroner, see §9-1-27.

Appointment of a coroner pro tempore, see §41-61-57.

Business hours of the clerk’s office, see Miss. R. Civ. P. 77.

JUDICIAL DECISIONS

1. In general.

An appointment under the provisions of the act for the appointment of a clerk pro tempore in case the clerk should be at any time unable from sickness or any unavoidable cause to attend the court, is not limited to the term of the court. Cocke v. Halsey, 41 U.S. 71, 10 L. Ed. 891, 1842 U.S. LEXIS 348 (U.S. 1842).

The court has no authority to remove a clerk or suspend him (unless under the section [Code 1942 § 1663] as now amended he be on trial) from office except upon conviction for an offense which subjects him to removal. Ex parte Lehman, 60 Miss. 967, 1883 Miss. LEXIS 49 (Miss. 1883).

OPINIONS OF THE ATTORNEY GENERAL

When a sheriff is so ill as to be unable to perform his official duties, the circuit court may appoint a suitable person to discharge the sheriff’s duties until such time as the incumbent is able to return, and the county board may make a recommendation to the court in regard to such appointment. Farese, Apr. 6, 2001, A.G. Op. #01-0080.

Cross References —

Clerks of Supreme Court, see §§9-3-13 et seq.

Clerks of chancery court, see §§9-5-131 et seq.

Clerks of circuit court, see §§9-7-121 et seq.

Administrative Office of Courts to assist court clerks, see §9-21-3.

JUDICIAL DECISIONS

1. In general.

The circuit court has ample power to promulgate rules pertaining to appeals to it from the county court, and when its rules are not complied with the order dismissing the appeal will be affirmed, in the absence of evidence that this act constituted an abuse of the court’s discretion. Mississippi State Highway Com. v. McGrew, 206 So. 2d 334, 1968 Miss. LEXIS 1572 (Miss. 1968).

Whether dismissal of bill on plaintiff’s request during last 1917 vacation was erroneous, properly presented by exceptions at January term 1918. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

OPINIONS OF THE ATTORNEY GENERAL

Chancery Judge is not authorized to order employees to be provided to Office of Chancery Clerk. O’Neal Sept. 1, 1993, A.G. Op. #93-0605.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Clerks of Court §§ 23 et seq.

CJS.

21 C.J.S., Clerks of Courts §§ 327, 328.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Maintenance of the minute book, see Miss. R. Civ. P. 79.

JUDICIAL DECISIONS

1. In general.

2. Signing minutes.

3. —Who may sign.

4. —Time for signing.

5. —Signing after term, effect of.

6. Impeachment of minutes.

7. —Evidence.

1. In general.

The day after rendition of a judgment at law is the date of the pronouncement of the judgment by the court at the conclusion of the trial and this day is determined by the entry of the judgment and the minutes of the court. Duncan v. Brock, 216 Miss. 406, 62 So. 2d 562, 1953 Miss. LEXIS 650 (Miss. 1953).

The date when a judgment is rendered is determined by the entry of the judgment on the minutes of the court. Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642, 1940 Miss. LEXIS 111 (Miss. 1940).

Order extending court term must be entered on minutes signed by judge before expiration of extended term. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

Judgment is void where entered by the clerk 30 days after adjournment. Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489, 1918 Miss. LEXIS 12 (Miss. 1918).

2. Signing minutes.

The proper interpretation of this section as now written is that the judgments or decrees rendered and entered on the unsigned minutes are either voidable or valid, as the case may be, depending on the determination of the judge or chancellor as to whether the minutes are correct and should be signed. Eubanks v. W. H. Hodges & Co., 207 So. 2d 640, 1968 Miss. LEXIS 1626, 1968 Miss. LEXIS 1627 (Miss. 1968).

Where the trial judge before the expiration of a term extended the same for an additional term during which the judgment of conviction in question was entered, and thereafter ordered a second extension, but he did not sign the minutes either during or on the last day of the regular term or at the beginning or ending of the first extended term, or for the second extended term, the judgment of conviction was invalid, under the decision in Jackson v. Gordon (1943) 194 Miss 268, 11 So. 2d 901; Patton v. State (1943) 194 Miss 757, 12 So. 2d 383; Tucker v. State (Miss. Ward v. State, 12 So. 2d 526 (Miss. 1943); Patton v. State, 12 So. 2d 537 (Miss. 1943); Bell v. State, 12 So. 2d 784 (Miss. 1943).

Order extending the regular term of court of a circuit court was invalid where the presiding judge did not sign the minutes day by day throughout the term, nor did he sign the minutes on the last day of the term, and a signing of the minutes thereafter was a signing thereof in vacation. 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).

The duty of trial judge to sign minutes within term time is function which appertains to general administration of his office, and is not one which litigant is required to stand by and watch as to whether duty has been performed. Williams v. State, 179 Miss. 419, 174 So. 581, 1937 Miss. LEXIS 23 (Miss. 1937).

Writing or entry on court’s minute book does not become part of minutes until they are read and signed by presiding judge. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

3. —Who may sign.

Where a presiding judge, who died during the term, would have had the right to sign all the minutes of the term of the last day thereof, or at any time before the adjournment of the term, it necessarily followed that his successor in office was vested with the same power and authority where he was appointed and qualified before the adjournment of the term commenced by his predecessor. Grant v. State, 189 Miss. 341, 197 So. 826, 1940 Miss. LEXIS 124 (Miss. 1940).

4. —Time for signing.

Signing by the presiding judge of the minutes at the end of an invalid extended term could not be considered as a correction of the minutes nunc pro tunc, since there is no right or authority in a presiding judge to sign the minutes of his court after the term has expired by operation of law and is in vacation. 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).

While the entry of the minutes each day by the clerk of court against the next sitting of the court is contemplated, and is to be commended as good practice, it is not made mandatory that they shall be signed until the last day of the term, but it is mandatory that the same shall be signed before the adjournment of the court. Grant v. State, 189 Miss. 341, 197 So. 826, 1940 Miss. LEXIS 124 (Miss. 1940).

Statutory provision that court’s minutes shall be drawn up, read, and signed on last day of term before adjournment is mandatory, and requires signature thereof before expiration of term fixed by law or order calling special term. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

Presiding judge has no right to sign court minutes after term expires by operation of law. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

5. —Signing after term, effect of.

Where the trial judge prior to the expiration of the term signed an order to extend the term, and thereafter signed another order for a second extension, but failed to sign the minutes either from day to day or at the end of the regular term, or at the beginning or ending of the first extended term, or for the second extended term, and his signature did not appear on the minutes when the validity of the proceedings were challenged during the second extended term, judgment of conviction entered during the first extended term was invalid. Patton v. State, 194 Miss. 757, 12 So. 2d 383, 1943 Miss. LEXIS 67 (Miss. 1943); Tucker v. State, 12 So. 2d 524 (Miss. 1943); Ward v. State, 12 So. 2d 526 (Miss. 1943); Patton v. State, 12 So. 2d 537 (Miss. 1943); Bell v. State, 12 So. 2d 784 (Miss. 1943).

Where circuit judge failed to sign any of minutes until after expiration of term, and therefore record did not legally show that any term of court had been held, defect could be raised for first time on appeal. Williams v. State, 179 Miss. 419, 174 So. 581, 1937 Miss. LEXIS 23 (Miss. 1937).

Attempted extension of court term, at which defendant was indicted, by order entered on minutes not signed by presiding judge before expiration of term, was ineffective, and trial of defendant thereafter was nullity. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

6. Impeachment of minutes.

Judicial record complete on its face not subject to impeachment; judgment rendered day court adjourned entered several days later on blank page in front of place where judge signed minutes finally adjourning the court, in absence of showing of irregularity or fraud such fact cannot be shown in chancery suit to declare the judgment void. Childress v. Carley, 92 Miss. 571, 46 So. 164, 1908 Miss. LEXIS 220 (Miss. 1908).

7. —Evidence.

Exclusion of circuit clerk’s testimony that court’s minutes, on which order was entered extending special term at which defendant was indicted, had not been signed when defendant’s objections to trial after expiration of such term were heard, held prejudicial error. Watson v. State, 166 Miss. 194, 146 So. 122, 1933 Miss. LEXIS 335 (Miss. 1933).

Circuit court minutes cannot be contradicted by parol. Williams v. State, 125 Miss. 347, 87 So. 672, 1921 Miss. LEXIS 129 (Miss. 1921).

Parol evidence is inadmissible to contradict the minutes as to date of adjournment. Jones v. Williams, 62 Miss. 183, 1884 Miss. LEXIS 46 (Miss. 1884).

The question of priority between two judgments in the same court is to be determined by the minutes and evidence aliunde is inadmissible to show that the one last entered was the first rendered. Johnson v. Edde, 58 Miss. 664, 1881 Miss. LEXIS 21 (Miss. 1881).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 23 et seq.

CJS.

21 C.J.S., Courts §§ 246 et seq.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Editor’s Notes —

Laws of 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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 1993, ch. 518.

Amendment Notes —

The 2004 amendment added the second sentence in (8).

The 2007 amendment, in (1), substituted “Supreme Court in the amounts set forth in this subsection; however” for “Supreme Court and then in an amount of Four Thousand Dollars ($4,000.00) per annum; however” in the introductory paragraph and added (a) and (b); in (5), added (b), and divided the former first paragraph into the present introductory paragraph and (a) and (b) by inserting “(a)” preceding “From and after” and adding “(b)” and the first three sentences in (b); added (6)(d); and made minor stylistic changes.

The 2010 amendment brought the section forward without change.

Cross References —

Court reporters and court reporting generally, see §§9-13-1 et seq.

Allowing judges and chancellors to apply their expense allowances to court administration special fund, see §9-17-5.

OPINIONS OF THE ATTORNEY GENERAL

Section 9-1-36(4) is the only provision for reimbursement of expenses to a legal research assistant employed by a circuit judge or chancellor, and the board of supervisors may not pay such travel expenses. Jones, December 20, 1995, A.G. Op. #95-0765.

Section 9-1-36(8) does not contemplate payments by a county for expenses in maintaining a private office by a circuit judge or chancellor. Shands, Mar. 5, 2003, A.G. Op. #03-0049.

There is no authority for counties within a circuit court district to supplement by pro rata share the salaries of court support staff. Gordon, Oct. 17, 2003, A.G. Op. 03-0472.

County approval is required before a position is submitted for approval by the Administrative Office of Courts at a salary which would increase the county’s supplemental payment obligations. Williams, Apr. 2, 2004, A.G. Op. 04-0106.

This section allows a county to provide funds for expenses in maintaining a private office by a circuit judge or chancellor if no office is provided by the county. The term “actual expenses” means expenses actually incurred by the circuit judge or chancellor in maintaining an office. Shands, Aug. 27, 2004, A.G. Op. 04-0433.

Counties within a judicial district do not have a responsibility to pay for the office expenses of a circuit judge or chancellor. However, each county within the judicial district may provide funds to assist in defraying the actual expenses to maintain an office. Shands, Aug. 27, 2004, A.G. Op. 04-0433.

Shands, Aug, 27, 2004, A.G. Op. 04-0433 withdrawn. Littlejohn, Dec. 9, 2004, A.G. Op. 04-0596.

JUDICIAL DECISIONS

1. In general.

The circuit and chancery courts are respectively empowered under this section [Code 1942 § 1668], in case the board of supervisors have failed to do so, to procure the necessary record books, stationery, furniture, etc., belonging to the court exercising the power, but have no authority to procure other such articles for the county. Board of Sup'rs v. Hughes, 83 Miss. 195, 35 So. 424 (Miss. 1903).

The clerk should first ask the court to make the allowance, and if the application is approved in whole or in part, the court should direct the court what to purchase, limiting the sum to be expended. Board of Sup'rs v. Hughes, 83 Miss. 195, 35 So. 424 (Miss. 1903).

The court should allow or disallow the bill for supplies presented by the clerk rather than certify the same to the board of supervisors to be passed on. State v. Lovell, 70 Miss. 309, 12 So. 341, 1892 Miss. LEXIS 122 (Miss. 1892).

OPINIONS OF THE ATTORNEY GENERAL

All requests made by the chancery or circuit courts for equipment or supplies must be presented first to the board of supervisors; only if and when the board of supervisors fails to procure necessary items may the court order the court clerk to procure those items, and such court order has the legal effect of binding the board to follow that order. Bryant, Aug. 1, 1997, A.G. Op. #97-0405.

Cross References —

Mississippi Public Records Act, see §25-61-1 et seq.

Exemption from Mississippi Public Records Act of 1983 of those records judicially determined to be exempt, see §25-61-11.

Cross References —

Duties of clerk of chancery court, see §§9-5-135,9-5-137.

Oath and bond of clerk of circuit court, see §9-7-121.

JUDICIAL DECISIONS

1. In general.

2. Application.

1. In general.

In a case where there are many billable hours that the trial court is unable to observe or lacks knowledge of, it is incumbent upon the party requesting attorney fees to place before the trial court evidence as to the reasonableness of the amount of the award, so that the record as a whole can support the award of attorney’s fees. Speights v. Speights, 126 So.3d 76, 2013 Miss. App. LEXIS 743 (Miss. Ct. App. 2013).

Standard of review for award of attorneys’ fees is abuse of discretion, and such awards must be supported by credible evidence. Regency Nissan v. Jenkins, 678 So. 2d 95, 1996 Miss. LEXIS 435 (Miss. 1996).

Award of $7,500 in attorney fees to successful plaintiff in action against used car dealer for violation of Odometer Disclosure Act was not abuse of discretion; plaintiff supported his claim with sixteen pages of itemized expenses, plaintiff’s attorney billed 82.50 hours at $140 per hour plus expenses of $164.91 for total of $11,714.91, and amount was adjusted downward by trial court. Regency Nissan v. Jenkins, 678 So. 2d 95, 1996 Miss. LEXIS 435 (Miss. 1996).

2. Application.

Chancery court did not abuse its discretion in by awarding a father attorney’s fees given the lengthy procedural history of the case and the mother’s persistent contempt of court; An award of $ 5,000 was not an unreasonable amount for prosecution of the contempt action, which required three hearings in chancery court and forced the father to retain counsel in Missouri. Brown v. Hewlett, 281 So.3d 189, 2019 Miss. App. LEXIS 94 (Miss. Ct. App. 2019).

Chancery court did not abuse its discretion in connection with the issue of attorney’s fees because a father was not entitled to fees that he would have incurred anyway litigating issues of custody, which was the primary issue in the case, or child support; with no specific evidence as to the amount of fees that the father incurred because of the mother’s contempt, the chancellor did not abuse his discretion by awarding the father attorney’s fees. Heisinger v. Riley, 243 So.3d 248, 2018 Miss. App. LEXIS 154 (Miss. Ct. App. 2018).

Chancery court did not err in awarding attorney’s fees to a mother because it determined that the award was a reasonable amount based on its experience, observation, and the information before it, i.e., the pleadings that requested the attorney’s fees and a three-day hearing that required the presence of the mother’s attorney Taylor v. Timmons (In re C.T.), 228 So.3d 311, 2017 Miss. App. LEXIS 332 (Miss. Ct. App. 2017).

Where the court found that debt owed by debtor was nondischargeable in the amount of $2,903.89, and the creditor’s attorney requested $11,988.75 in fees and costs, considering the Miss. R. Prof. Conduct 1.5 factors and the lodestar amount, the court reduced the amount requested by 50% because it found no basis to justify a fee award so much greater than the amount recovered. Hometown Credit, LLC v. Peters (In re Peters), — B.R. —, 2017 Bankr. LEXIS 861 (Bankr. S.D. Miss. Mar. 28, 2017).

Where debtor agreed to nondischargeable judgment in amount of $1,347.90 on underlying debt and creditor requested $5,080 in attorney fees, court, applying factors in Miss. R. Prof. Conduct 1.5, reduced amount to $1,270 because there was no basis to justify award of fees so much greater than amount recovered, the customary fee for actions of this type was one-third of the amount of the indebtedness and the questions presented were not novel or difficult. Pikco Finance, Inc. v. Staten (In re Staten), 559 B.R. 666, 2016 Bankr. LEXIS 3997 (Bankr. S.D. Miss. 2016).

Chancellor did not abuse the chancellor’s discretion in ordering a former spouse to pay damages to the ex-spouse in a contempt judgment because, while there was no itemized bill of the legal services or travel expenses of the ex-spouse, the record showed the amount of legal work performed and the ex-spouse’s residence in another state. Moreover, the award was reasonable. Moseley v. Smith, 180 So.3d 667, 2014 Miss. App. LEXIS 689 (Miss. Ct. App. 2014), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 605 (Miss. 2015), cert. dismissed, — So.3d —, 2015 Miss. LEXIS 625 (Miss. 2015).

In this declaratory judgment action, plaintiff was awarded attorney’s fees and expenses because the time billed by plaintiff in pursuit of the declaratory judgment, including the time billed pursuing summary judgment, was neither excessive nor unreasonable where plaintiff’s briefs were thoroughly researched and well written — a fact that greatly contributed to its success in this proceeding. MGM Resorts Miss., Inc. v. Thyssenkrupp Elevator Corp., — F. Supp. 3d —, 2015 U.S. Dist. LEXIS 118483 (N.D. Miss. Sept. 4, 2015).

Trial court did not err in awarding a wife attorney’s fees because it awarded a reasonable amount of attorney’s fees to the wife pursuant to the statute based on its experience, observation, and the information before it, i.e., the pleadings and a one-day hearing. Riley v. Riley, 196 So.3d 1159, 2016 Miss. App. LEXIS 505 (Miss. Ct. App. 2016).

In a divorce action, the trial court’s award of attorneys fees to the wife was not supported by the evidence; although she testified about her lack of income, she did not submit a financial statement to substantiate her inability to pay, and there was no evidence as to the amount or reasonableness of the fees. Speights v. Speights, 126 So.3d 76, 2013 Miss. App. LEXIS 743 (Miss. Ct. App. 2013).

Award of attorney’s fees was not an abuse of discretion because there was evidence of the actual attorney’s fees homeowners incurred; since there was a basis for the award of punitive damages, an award of attorney’s fees was proper. Woodkrest Custom Homes Inc. v. Cooper, 108 So.3d 460, 2013 Miss. App. LEXIS 24 (Miss. Ct. App. 2013).

In a products liability action alleging three welding rod manufacturers’ failure to warn, the court granted the married couple’s request for an attorney’s fee award; exercising its discretion under Fed. R. Civ. P. 54(d) and recognizing the factors for determining a reasonable fee, set forth in Miss. R. Prof. Conduct 1.5, as well as the legislative dictated regarding reasonable fees in Miss. Code Ann. §9-1-41, the court allowed the manufacturers to either stipulate to the fee amount requested by the couple, $2,173,185.73, or to provide the court with a challenge to the couple’s fee request within 28 days from the date of the court’s order. 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 an insurance salesman breached an employment agreement by selling policies to former clients, the award of attorney’s fees was proper because the former employer was not require to provide any additional offer of proof on the necessity or reasonableness of attorneys’ fees. Raines v. Bottrell Ins. Agency, Inc., 992 So. 2d 642, 2008 Miss. App. LEXIS 274 (Miss. Ct. App.), cert. dismissed, 997 So. 2d 924, 2008 Miss. LEXIS 541 (Miss. 2008).

In a collection suit, an award of attorney’s fees in the amount of one-third of the judgment was presumptively reasonable based on the application of several factors, such as the difficulty in collecting the judgment due to a bankruptcy filing and a fee agreement. 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).

In a dispute involving the sale of real estate, a chancellor used the reasonableness factors under Miss. Code Ann. §9-1-41 in awarding the sellers their attorney fees under the terms of a contract since they prevailed. Culbreath Revocable Trust v. Sanders, 979 So. 2d 704, 2007 Miss. App. LEXIS 591 (Miss. Ct. App. 2007), cert. denied, 979 So. 2d 691, 2008 Miss. LEXIS 162 (Miss. 2008).

In a complex contract case regarding damages to equipment owned by a utilities commission, a trial court did not abuse its discretion by awarding fees to two attorneys in the case, as it was clear from the language of the trial judge’s order that the judge did in fact apply the reasonableness factors under McKee v. McKee, 418 So. 2d 764 (Miss 1982), even though he did not detail his reasoning; moreover, it was unnecessary to determine whether McKee predated Miss. Code Ann. §9-1-41. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, 2007 Miss. LEXIS 495 (Miss. 2007).

Chancery court erred in finding that there was nothing before it to show that the creditor’s accountant’s fees were reasonable; but for the fraud of the debtor, the creditor would not have incurred this expense. Allred v. Fairchild, 916 So. 2d 529, 2005 Miss. LEXIS 809 (Miss. 2005).

An award of one-third of the amount collected was appropriate where the defendant had to defend against the plaintiff’s claim in order to collect the amount owed and where the defendant presented testimony from an experienced trial attorney in Mississippi who stated that 25 percent of the amount collected is a reasonable attorneys’ fee in Mississippi for collection of an open account if suit is not filed and that 33 1/3 percent is appropriate if suit is filed. Par Indus. v. Target Container Co., 708 So. 2d 44, 1998 Miss. LEXIS 41 (Miss. 1998).

Attorneys’ fees awarded in a case involving an employer’s bad faith failure to pay a worker’s compensation claim were improperly granted because the trial court abused its discretion by making inaccurate findings regarding the factors outlined in determining the reasonableness of such an award. Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

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 second sentence of subsection (2). The words “However, that the prohibition” were changed to “However, the prohibition.” The Joint Committee ratified the correction at its May 20, 1998 meeting.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in subsection (2). The words “and/r” were changed to “and/or.” The Joint Committee ratified the correction at its April 26, 2001, meeting.

Editor’s Notes —

The United States Attorney General, by letter dated May 14, 1993, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the addition of this section by Laws, 1993, ch. 481, § 1.

The United States Attorney General, by letter dated September 5, 1997, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1997, ch. 570, § 9.

On August 2, 1999, 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, 1999, ch. 422, § 1.

By letter dated August 19, 2004, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965 to the amendment of this section by Laws, 2004, ch. 505, § 16.

Laws of 2019, ch. 485, § 14, provides as follows:

“SECTION 14. This act shall take effect and be in force from and after January 1, 2020, except for Section 11, which shall take effect and be in force from and after July 1, 2019, and Sections 12 and 13, which shall take effect and be in force from and after the passage of this act.”

Amendment Notes —

The 2004 amendment substituted “Ninety Thousand Dollars ($90,000.00)” for “Seventy-five Thousand Six Hundred Dollars ($75,600.00) annually, and from and after January 1, 2000, in excess of Eighty-three Thousand One Hundred Sixty Dollars ($83,160.00) annually” in (1); and substituted “Ninety Thousand Dollars ($90,000.00)” for “Seventy-five Thousand Six Hundred Dollars ($75,600.00) annually, and from and after January 1, 2000, in excess of Eighty-three Thousand One Hundred Sixty Dollars ($83,160.00) annually” in (2).

The 2011 amendment inserted “employer contributions paid by the chancery or circuit clerk to the Public Employees’ Retirement System under Sections 25-11-106.1 and 25-11-123 (f)(4)” in (1).

The 2019 amendment, effective January 1, 2020, substituted “Ninety-four Thousand Five Hundred Dollars ($94,500.00)” for “Ninety Thousand Dollars ($90,000.00)” in (1) and (2).

Cross References —

Additional allowance for chancery court clerks in certain counties, see §25-7-10.

JUDICIAL DECISIONS

1. In general.

In a case in which defendant, a former county circuit clerk, was convicted of embezzlement, in violation of 18 U.S.C.S. § 666(a)(1), his reliance on the Phillips decision, a Louisiana case, was misplaced. In the Phillips case, defendant, a former tax assessor of a parish, was not an agent of the parish under 18 U.S.C.S. § § 666(d)(1), because Louisiana law completely separated the tax assessor’s office from the parish government; however, in Mississippi, circuit clerks were not completely separated from county governments in Mississippi, and the Phillips decision was not applicable in the present case. United States v. Harris, 296 Fed. Appx. 402, 2008 U.S. App. LEXIS 22020 (5th Cir. Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Under Section 9-1-43, the only time that a relative of a chancery or circuit clerk may be paid a salary, which combined with the clerk’s fees would exceed the cap, would be when that relative was employed by the clerk’s office prior to the time the clerk was first elected to office. To allow otherwise would defeat the intent of the statute. Ashley, August 10, 1995, A.G. Op. #95-0477.

Any compensation received by circuit clerks for services rendered that are not statutorily required would be exempt from the salary limitations as set forth in Section 9-1-43. Carpenter, February 7, 1996, A.G. Op. #96-0003.

Under Section 9-1-43(1) chancery and circuit clerks will be allowed to deduct employee salaries and related expenses, and any expenses allowed as deductions by Schedule C of the Internal Revenue Code for purposes of determining fees to be received by them as compensation. Evans, November 8, 1996, A.G. Op. #96-0716.

A chancery or circuit clerk may employ anyone related to them outside the first degree, pay that employee’s salary and related expenses out of fees earned by that office and deduct that employee’s salary and related expenses as a deductible expense of the office in reaching the salary cap. Bryant, Dec. 19, 1997, A.G. Op. #97-0757.

A new chancery clerk’s salary for the remainder of that year is limited by the unfulfilled salary cap of the old clerk, and the new clerk is entitled to earn fees limited by that portion of the salary cap that can be attributed to his time in office on a pro rata basis. Bryant, December 2, 1998, A.G. Op. #98-0744

The county identification number should be used in setting up a clearing account in the county depository for funds held by the chancery court in a case before the court. Creekmore, May 30, 2003, A.G. Op. 03-0035.

Nothing in subsection (2) of this section would authorize a circuit clerk to employ a relative within the third degree of kinship who is to be paid out of public funds by the board of supervisors pursuant to §9-7-126. Dulaney, Aug. 27, 2004, A.G. Op. 04-0413.

The salary of a family member would not count as part of the twenty-five percent compensation of a retired circuit or chancery clerk. McLeod, Mar. 11, 2005, A.G. Op. 05-0056.

Editor’s Notes —

Laws of 2019, ch. 485, § 14, provides as follows:

“SECTION 14. This act shall take effect and be in force from and after January 1, 2020, except for Section 11, which shall take effect and be in force from and after July 1, 2019, and Sections 12 and 13, which shall take effect and be in force from and after the passage of this act.”

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2004 amendment designated the two formerly undesignated paragraphs as (1) and (2); and added (3).

Cross References —

Chancery court clerk fees, see §25-7-9.

As to fees charged by clerks of the chancery court, see §25-7-9.

Circuit court clerk fees, see §25-7-13.

As to fees charged by clerks of the circuit court, see §25-7-13.

OPINIONS OF THE ATTORNEY GENERAL

The content of the clerk’s annual report to the State Auditor is set forth by Section 9-1-45. The report includes revenues, including fees both subject to and not subject to the cap, expenses and additional information which may be requested by the Public Employees’ Retirement System for purposes of retirement calculations. Evans, November 8, 1996, A.G. Op. #96-0716.

Amendment Notes —

The 2016 amendment inserted “whether counsel was appointed” in (1)(a); and inserted “and the Office of State Public Defender” in (3).

Cross References —

Oversight Task Force, see §47-5-6.

Editor’s Notes —

Laws, 1999, ch. 432, § 1, provides:

“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.”

Cross References —

Chancery court clerk authorized to keep minute books by means of electronic filing or storage or both, as provided in this section in lieu of or in addition to any paper records, see §§9-5-135 et seq.

Electronic storage of certain files, records and other documents of circuit or county courts, see §9-7-128.

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

Cross References —

Chancery Court clerk authorized to keep minute books by means of electronic filing or storage or both, as provided in this section in lieu of or in addition to any paper records, see §§9-5-135 et seq.

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

Editor’s Notes —

Former §9-1-55 directed the Mississippi Supreme Court to promulgate rules and regulations to implement the provisions of §§9-1-51 through 9-1-57.

Cross References —

Chancery Court clerk authorized to keep minute books by means of electronic filing or storage or both, as provided in this section in lieu of or in addition to any paper records, see §§9-5-135 et seq.

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Appointment of special judge to fill vacancy until Governor makes his appointment, see §9-1-105.

JUDICIAL DECISIONS

1. Write-in election.

Write-in election for a circuit court judge was proper under Miss. Code Ann. §23-15-365 because the circuit judge passed away after qualifying for the November 2, 2010 election, and Miss. Code Ann. §9-1-103 permitted the appointee judge to serve for the unexpired term with no requirement of a special election since the circuit judge died fewer than nine months before the expiration of his term; the use of the word “or” in Miss. Code Ann. §9-1-103 means that an election under Miss. Code Ann. §23-15-849(1) need not occur if there is so little time in the unexpired term that the appointee may legally serve for the unexpired term. Rayner v. Barbour, 47 So.3d 128, 2010 Miss. LEXIS 572 (Miss. 2010).

RESEARCH REFERENCES

Law Reviews.

Judicial Selection – What is Right for Mississippi?, 21 Miss. C. L. Rev. 199, Spring, 2002.

Editor's Notes —

On July 13, 1993, 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 1993, ch. 518.

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 2005, ch. 501, § 18.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

Amendment Notes —

The 2005 amendment , in (2), in the first sentence, inserted “or upon his own motion,” and “in the event of an emergency or overcrowded docket,” and substituted “serve on a temporary basis” for “serve on an emergency basis,” and in the last sentence, added “for whatever period of time is designated by the Chief Justice” at the end; and substituted “currently” for “presently” in the first sentences of (6) and (10).

The 2014 amendment, in (10), substituted “fifty percent (50%)” for ”twenty-five percent (25%).”

The 2018 amendment, effective March 19, 2018, in (2), inserted “the senior judge of a county court” and “or county” in the first sentence and made related changes, and added the last sentence; in the second sentence of (10), substituted “equal to 1/260ths” for “equal to 1/260”; and made minor stylistic changes throughout.

Cross References —

Designation of certain retired judges as Senior Judges, see §9-1-107.

Recall of retired Supreme Court justices, see §9-3-6.

Services of retired Supreme Court Judges, see §9-3-12.

Compensation of special judge, see §§25-3-53 and25-3-55.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former §9-1-13.

6. In general.

7. Powers and functions of special judge.

8. Termination of authority.

I. Under Current Law.

1. In general.

Trial court properly dismissed individuals’ complaint against the Supreme Court chief justice for appointing a special chancellor to hear outstanding matters regarding two underlying cases as the chief justice enjoyed judicial immunity and the appointment was a judicial act. Vinson v. Prather, 879 So. 2d 1053, 2004 Miss. App. LEXIS 555 (Miss. Ct. App. 2004).

An order denying a defendant’s motion for post-conviction relief would not be vacated on the ground that the appointment of the judge who issued the order did not comply with §9-1-105(5) because notice of the appointment was not sent to the Chief Justice of the Supreme Court, since one who acts pursuant to the color of authority, though without legal authority, nevertheless performs valid acts. Lack v. Illinois Cent. Gulf R.R., 626 So. 2d 121, 1993 Miss. LEXIS 484 (Miss. 1993).

2.-5. [Reserved for future use.]

II. Under Former § 9-1-13.

6. In general.

Whether a chancellor will call in another chancellor under [Code 1942 § 1652], because of his disqualification, or certify his disqualification to the governor for the appointment of a special chancellor under this section, is a matter pertaining to the administrative functions of his office, and is not subject to review. Anderson v. Anderson, 190 Miss. 508, 200 So. 726, 1941 Miss. LEXIS 72 (Miss. 1941).

Case argued before special judge, sitting for chief justice, and two regular judges, where chief justice resumed seat and read the opinion, it was binding on the parties, the two regular judges hearing the argument concurring therein. Bowles v. Wood, 90 Miss. 742, 44 So. 169, 1907 Miss. LEXIS 116 (Miss. 1907).

7. Powers and functions of special judge.

Constitution § 165, authorizing the Governor to commission a lawyer to preside at a term of the court or in a case necessarily encompasses the right of the commissioned special judge to sign orders and decrees in a case or cases over which he has been designated to preside. De Moe v. McLeod, 228 Miss. 481, 89 So. 2d 730, 1956 Miss. LEXIS 537 (Miss. 1956).

A special chancellor, appointed and commissioned by the Governor under Constitution § 165 to try a suit to confirm title to real estate, has authority to sign a final decree in vacation. De Moe v. McLeod, 228 Miss. 481, 89 So. 2d 730, 1956 Miss. LEXIS 537 (Miss. 1956).

Fact that a special judge presided at the murder trial and regular judge heard and denied a motion for new trial did not constitute reversible error where the motion was properly denied on its merits and there was no showing that a special judge would have sustained the motion. Sims v. State, 209 Miss. 545, 47 So. 2d 849, 1950 Miss. LEXIS 412 (Miss. 1950).

The appointment of a special judge becomes effective upon the signing of his commission by the governor and its attestation by the secretary of state, even though the commission is not received until later by the appointee; and acts done by the appointee after acceptance of the appointment and qualification by taking the prescribed oath are valid. Smith v. State, 200 Miss. 184, 26 So. 2d 543, 1946 Miss. LEXIS 280 (Miss. 1946).

A special judge commissioned under this section is a de facto officer and his acts are valid although he failed to take the required official oath before assuming the duties of office. 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).

A special judge, appointed under this section, is empowered to approve the stenographer’s report of the evidence and to sign the bill of exceptions. Lopez v. Jackson, 79 Miss. 460, 31 So. 206, 1901 Miss. LEXIS 101 (Miss. 1901).

A bill of exceptions must be signed by the special judge, where he is appointed under this section [Code 1942 § 1653], and not by the regular judge. Illinois C. R. Co. v. Bowles, 71 Miss. 994, 16 So. 235, 1894 Miss. LEXIS 6 (Miss. 1894).

8. Termination of authority.

Authority of special judge appointed to act for chief justice of the Supreme Court during his illness terminates when chief justice resumes his duties. John E. Hall Com. Co. v. R. L. Crook & Co., 87 Miss. 445, 40 So. 20, 1905 Miss. LEXIS 99 (Miss. 1905).

OPINIONS OF THE ATTORNEY GENERAL

Unless the Supreme Court order appointing a county court judge as special judge specifies otherwise, such county judge would continue to serve in the capacity of a special judge even when his/her elected term ends. Floyd, Oct. 18, 2002, A.G. Op. #02-0595.

Pursuant to subsection (14) of this section, special judges receive compensation from the Department of Finance and Administration. Floyd, Oct. 18, 2002, A.G. Op. #02-0595.

A special judge is entitled to the same power and authority as a regularly elected judge and would be able to carry a firearm under the provisions of §97-37-7. Floyd, Oct. 18, 2002, A.G. Op. #02-0595.

A special judge would be able to conduct marriage ceremonies under the same authority and limitations as a judge in the office to which he has been appointed. Floyd, Oct. 18, 2002, A.G. Op. #02-0595.

A practicing attorney selected as a special judge for service on the Supreme Court may remain of counsel in all cases presently pending in the state and federal courts. However, pursuant to §9-1-25 which applies to any judge of the Supreme Court, a special judge may not be engaged in the practice of law and, therefore, may not practice in any of the state courts during his tenure as a special judge. A special judge may, pursuant to the same statute, practice in the federal courts in any case in which he or she was engaged when appointed. Hurst, May, 21, 2004, A.G. Op. #04-0180.

Assignment of causes or matters to a county judge pursuant to §9-9-35 is by consent of the county judge. Therefore, the latter has discretion is accepting assignments while the former does not appear to have the same authority. Yerger, July 23, 2004, A.G. Op. #04-0312.

RESEARCH REFERENCES

ALR.

Substitution of judge in state criminal trial. 45 A.L.R.5th 591.

Construction and validity of state provisions governing designation of substitute, pro tempore, or special judge. 97 A.L.R.5th 537.

Law Reviews.

Recent Trends in Mississippi Judicial Rule Making: Court Power, Judicial Recusals, and Expert Testimony, 23 Miss. C. L. Rev. 1, Fall, 2003.

Editor’s Notes —

Section 27-104-1 provides that the term “Fiscal Management Board” shall mean the “Department of Finance and Administration.”

Laws of 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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 1993, ch. 518.

On March 1, 2002, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965 to the amendment of this section by Laws of 2002, ch. 348, § 1.

Amendment Notes —

The 2001 amendment, in the first sentence of (1), deleted “who are at least sixty-two (62) years of age” following “Justices” and inserted “and who are either at least sixty-two (62) years of age or are receiving retirement benefits” following “eight (8) years.”

The 2016 amendment substituted “six (6) years” for “eight (8) years” in the first sentence of (1); and substituted “sum equal to 1/260ths” for “sum equal to 1/260” in the first sentence of (4).

Cross References —

Appointment of special judges to serve on emergency basis, see §9-1-105.

Recall of retired supreme court justices, see §9-3-6.

Services of retired Supreme Court Judges, see §9-3-12.

Cross References —

Civil practice and procedure provisions common to courts, see §11-1-1 et seq.

Provisions for filling vacancies in the office of judge of the Supreme Court, see §23-15-849.

JUDICIAL DECISIONS

1. In general.

State system of electing judges to Supreme Court, including at-large, multi-member features, and east-to-west district lines dividing state into three districts did not dilute black voting strength, and did not violate § 2 of Federal Voting Rights Act of 1965. Magnolia Bar Ass'n v. Lee, 793 F. Supp. 1386, 1992 U.S. Dist. LEXIS 10889 (S.D. Miss. 1992), aff'd, 994 F.2d 1143, 1993 U.S. App. LEXIS 17043 (5th Cir. Miss. 1993).

RESEARCH REFERENCES

ALR.

Power of court to impose standard of personal appearance or attire. 73 A.L.R.3d 353.

Editor’s Notes —

This section is modified or supplanted by Rule 26(d), Mississippi Rules of Appellate Procedure, as indicated in Appendix II, Statutes Modified or Supplanted, to those Rules.

Cross References —

Exemption of the judiciary from provisions of open meetings law, see §25-41-3.

Period of time for filing unaffected by expiration of term of court, see Miss. R. App. P. 26.

JUDICIAL DECISIONS

1. In general.

Appeal would not be reinstated, where motion to reinstate was made after term at which appeal was dismissed and no special circumstances were shown excusing delay. Lampton v. Stevens, 173 Miss. 316, 160 So. 274, 1935 Miss. LEXIS 199 (Miss. 1935).

Appellant should apply for certiorari directing clerk to send up record, on clerk’s failure to certify record within time prescribed by law. Lovett v. Harrison, 162 Miss. 814, 137 So. 471, 1931 Miss. LEXIS 102 (Miss. 1931).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Courts § 37.

CJS.

21 C.J.S., Courts §§ 148, 149.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 23 et seq.

CJS.

21 C.J.S., Courts §§ 157-159, 161-163.

Cross References —

Appointment of special judges to serve on emergency basis, see §9-1-105.

Designation of certain retired judges as Senior Judges, see §9-1-107.

Services of retired Supreme Court Judges, see §9-3-12.

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judges §§ 15, 223–225.

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Jurisdiction of chancery courts in general, see §9-5-81.

Jurisdiction of circuit courts generally, see §§9-7-81 et seq.

Jurisdiction of county court, see §9-9-21.

Civil practice and procedure provisions applicable to courts, see §§11-1-1 et seq.

Appeals from denial of applications to register as an elector, see §§23-15-61 through23-15-79.

Appeal to the Supreme Court of a determination of a contest of a primary election, see §23-15-933.

Judicial review of final decisions of employee appeals board, see §25-9-132.

Appeals to Supreme Court in school board cases, see §37-65-129.

Appeals from chancery courts from decisions as to disciplining of nurses, see §73-15-31.

Appeals from chancery courts in proceedings involving licenses or permits issued by state board of pharmacy, see §73-21-101.

Appeals to Supreme Court in criminal cases, see §§99-35-101 et seq.

JUDICIAL DECISIONS

1. Jurisdiction in general.

2. —Original jurisdiction.

3. —Cases commenced in justice of the peace court.

4. —Advisory opinions.

5. —Title to property.

6. —Other particular matters.

7. Right of review.

8. Standing.

9. Filing of appeal.

10. Filing of cross-appeal.

11. Effect of appeal.

12. Matters reviewable in general.

13. —Moot issues.

14. —Jurisdiction.

15. —Process.

16. —Rulings on particular motions.

17. —Instructions.

18. —Other particular matters.

19. Presentation and objection in lower court, necessity of.

20. —Issues considered on appeal.

21. —Issues not considered on appeal.

22. Motion for new trial in lower court, necessity of.

23. Requirement of final judgment or order.

24. —Rulings on demurrers.

25. —Rulings on requests for new trials.

26. —Interlocutory decrees or orders.

27. —Other particular rulings or orders.

28. Record on appeal.

29. Review in general.

30. —Abuse of discretion.

31. —Federal questions.

32. —Presumptions.

33. —Comments or argument of counsel.

34. —Comments on failure of defendant to testify.

35. —Comments on failure of defendant to present evidence.

36. —Comments on evidence presented.

37. —Comments to jurors relating to rendition of verdict.

38. —Comments relating to sentencing.

39. —Miscellaneous Comments.

40. —Instructions.

41. —Weight and sufficiency of evidence.

42. —Validity and construction of statutes.

43. Disposition of appeal.

44. —Affirmance.

45. —Reversal; remand.

46. —Granting of new trial.

47. —Dismissal of appeal.

48. —Restitution.

49. Procedure and practice.

50. —Pleading.

51. —Parties.

52. —Evidence.

53. —Judgment.

54. —Attorney fees.

1. Jurisdiction in general.

Jury did not return proper verdict as it was instructed to find for either the husband and wife or the driver, but by its verdict, the jury did neither; only then was the circuit judge authorized to enter a judgment upon that verdict, and since there was no proper verdict, it was improper for the circuit judge to enter a final judgment, and the appellate court did not have jurisdiction under Miss. Code Ann. §9-3-9. Baham v. Sullivan, 924 So. 2d 580, 2005 Miss. App. LEXIS 1032 (Miss. Ct. App. 2005).

The Supreme Court’s authority to impose sanctions on a judge is not dependant upon the recommendations of the Commission on Judicial Performance. The Supreme Court has full jurisdiction to increase or diminish sanctions based on its review of the record made before the commission. In re Collins, 524 So. 2d 553, 1987 Miss. LEXIS 2932 (Miss. 1987).

The Supreme Court has no jurisdiction where there had ceased to be a controversy. Insured Sav. & Loan Asso. v. State, 242 Miss. 547, 135 So. 2d 703, 1961 Miss. LEXIS 592 (Miss. 1961).

Supreme Court cannot temporarily suspend its jurisdiction, confer the same on a circuit court to pass upon a matter, and, after it has done so, to report back to, and reinvest the Supreme Court with jurisdiction. Copeland v. Robertson, 236 Miss. 95, 108 So. 2d 419, 1959 Miss. LEXIS 299 (Miss. 1959).

On appeal to Supreme Court, it is primary duty of court to determine ex mero motu its jurisdiction of cause. Roach v. Black Creek Drainage Dist., 206 Miss. 794, 41 So. 2d 5, 1949 Miss. LEXIS 301 (Miss. 1949).

What properly belongs to a court of appeals depends on consideration of public policy, and is mainly to be determined by the legislature. The legislature has the power to make a decision of a lower court final. Dismukes v. Stokes, 41 Miss. 430, 1867 Miss. LEXIS 15 (Miss. 1867), 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).

2. —Original jurisdiction.

Supreme Court would not act as trial court and would not invoke its discretionary jurisdiction to hear Governor’s petition, brought in his capacity as Governor and Administrator of Medicaid Division, for mandamus or prohibition to prevent Attorney General from proceeding with suit against tobacco companies for reimbursement of medicaid expenditures on ground that he lacked authority to do so. In re Fordice, 691 So. 2d 429, 1997 Miss. LEXIS 104 (Miss. 1997).

The Supreme Court has original jurisdiction to issue a writ of prohibition. State v. Maples, 402 So. 2d 350, 1981 Miss. LEXIS 2151 (Miss. 1981).

3. —Cases commenced in justice of the peace court.

Supreme Court has no jurisdiction where circuit court acquired no jurisdiction on appeal from police justice of city, and may dismiss on its own motion. Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911).

Supreme Court has no jurisdiction on appeal where no judgment of justice of peace is filed in circuit court. Rayborn v. Cothern, 43 So. 70 (Miss. 1907), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Jones v. State, 47 So. 479 (Miss. 1908); Murphy v. Hutchinson, 47 So. 666 (Miss. 1908), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Donald Bros. Mercantile Co. v. Marsh, 48 So. 230 (Miss. 1909).

The Supreme Court has no jurisdiction of a suit begun in the court of a justice of the peace where the record does not show the proceedings in that court nor a bond for appeal to the circuit court, and the case will be dismissed by the Supreme Court of its own motion. Ruff v. Montgomery, 83 Miss. 184, 35 So. 465, 1903 Miss. LEXIS 30 (Miss. 1903), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

The Supreme Court has no jurisdiction of a case begun in the court of a justice of the peace, unless the circuit court had jurisdiction. 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).

The Supreme Court has jurisdiction of an appeal by a claimant from the circuit court in cases originating in a justice’s court where the property claimed exceeds fifty dollars in value and has been by the circuit court subjected to 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).

4. —Advisory opinions.

The Supreme Court does not give advisory opinions. Gangloff v. State, 232 Miss. 395, 99 So. 2d 461, 1958 Miss. LEXIS 285 (Miss. 1958).

Motion filed, as a suggestion of error, for advisory opinion which may be of advantage to the administration of justice by clarification of certain matters must be overruled when no action by Supreme Court is sought by way of changing the judgment rendered or otherwise than an advisory opinion. Gipson v. State, 203 Miss. 434, 35 So. 2d 327, 1948 Miss. LEXIS 289 (Miss. 1948).

The importance of questions submitted does not give to Supreme Court power to render advisory opinions which it does not have under the Constitution and law. Gipson v. State, 203 Miss. 434, 35 So. 2d 327, 1948 Miss. LEXIS 289 (Miss. 1948).

The Supreme Court has no power or duty to render advisory opinions. Van Norman v. Barney, 199 Miss. 581, 25 So. 2d 324, 1946 Miss. LEXIS 228 (Miss. 1946); Sheldon v. Ladner, 205 Miss. 264, 38 So. 2d 718, 1949 Miss. LEXIS 428 (Miss. 1949).

5. —Title to property.

Supreme Court has no jurisdiction to make conclusive adjudication of title to property on appeal of proceeding under Code 1942, § 948, begun in justice of peace court, where neither justice of peace court nor circuit court on appeal had jurisdiction to make final and conclusive adjudication of title to property as between parties to litigation. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Supreme Court, circuit courts, chancery courts and county courts, when acting on appeal from a special possessory court of a justice or justices of peace, have only such jurisdiction to adjudicate regarding title to land as is vested in special court from which appeal was taken. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

6. —Other particular matters.

The Supreme Court has subject matter jurisdiction to hear an appeal by the State from a dismissal with prejudice for violation of §99-17-1’s 270-day rule under §99-35-103(a). State v. Harrison, 648 So. 2d 66, 1994 Miss. LEXIS 633 (Miss. 1994).

Although the Rules of Discipline for the Mississippi Bar provide for reinstatement through petition, an order of automatic reinstatement is within the scope of the Supreme Court’s exclusive and inherent jurisdiction of attorney discipline matters. Broome v. Mississippi Bar, 603 So. 2d 349, 1992 Miss. LEXIS 385 (Miss. 1992).

Unless some property rights are involved, civil courts have no jurisdiction over ecclesiastical controversy and are without jurisdiction to decide who is, or who ought to be, presiding bishop of the diocese. Conic v. Cobbins, 208 Miss. 203, 44 So. 2d 52, 1950 Miss. LEXIS 240 (Miss. 1950).

Provision in church manual permitting bishops to retain 10% of all monies raised by them in their respective dioceses does not give an ousted bishop such property rights in monies raised by his successor in the diocese as to entitle him to invoke jurisdiction of civil courts as to the 10% claimed by him. Conic v. Cobbins, 208 Miss. 203, 44 So. 2d 52, 1950 Miss. LEXIS 240 (Miss. 1950).

An application to file a bill of review based on newly discovered evidence, even after affirmance by the Supreme Court of the decree sought to be avoided, should be made to the chancery court which rendered the decree and not to the Supreme Court. Hall v. Waddill, 78 Miss. 16, 27 So. 936, 1900 Miss. LEXIS 71 (Miss. 1900).

7. Right of review.

Where defendant did not cite any authority to support his claim that he was entitled to jury instruction on lesser included offense of simple assault, claim was barred. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Supreme Court is not under obligation to review all capital murder sentences to determine whether death sentence is appropriate in particular case, but Court must determine whether sentence is excessive or disproportionate to penalty imposed in similar cases. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Supreme Court has judicial review of any action by the Mississippi Gaming Commission that exceeds its statutory authority. Casino Magic Corp. v. Ladner, 666 So. 2d 452, 1995 Miss. LEXIS 651 (Miss. 1995).

The State did not have the authority to appeal from an order granting a judgment notwithstanding the verdict rendered by the trial court to the defendant in a criminal case. State v. Insley, 606 So. 2d 600, 1992 Miss. LEXIS 532 (Miss. 1992).

An order revoking a suspension of sentence is not appealable. Kittrell v. State, 201 Miss. 514, 29 So. 2d 313, 1947 Miss. LEXIS 412 (Miss. 1947).

Appeal by plaintiff from judgment of circuit court is barred by acceptance of payment of judgment. 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).

The Supreme Court has no jurisdiction of an appeal prosecuted by a municipality from a judgment of the circuit court discharging one arrested for violating an ordinance of the municipality. City of Water Valley v. Davis, 73 Miss. 521, 19 So. 235, 1895 Miss. LEXIS 156 (Miss. 1895).

8. Standing.

Owners of residential property located near property that was rezoned by the city had standing to appeal from a decision of the circuit court regarding the rezoning classification since the value of their property might be affected by the zoning of the subject property. Luter v. Oakhurst Associates, Ltd., 529 So. 2d 889, 1988 Miss. LEXIS 332 (Miss. 1988).

A municipal taxpayer and owner of property rezoned by the city had standing to prosecute an appeal from the circuit court’s reversal of the city’s decision to rezone, and was a proper party appellant. Luter v. Hammon, 529 So. 2d 625, 1988 Miss. LEXIS 336 (Miss. 1988).

Objection of multifariousness in enjoining makers and assignees of notes not considered on appeal where only makers can be prejudiced and they make no complaint. Coast Realty & Colony Co. v. Security Trust Co., 118 Miss. 690, 79 So. 848, 1918 Miss. LEXIS 121 (Miss. 1918).

9. Filing of appeal.

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 22nd, 1939, an appeal bond filed and approved on March 21, 1930, 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).

Statutes limiting time for appeals are mandatory and jurisdictional. Turner v. Simmons, 99 Miss. 28, 54 So. 658, 1910 Miss. LEXIS 7 (Miss. 1910).

Where appeal, in case involving rights of the parties to an office, is not filed in time for court to decide question while their rights are existent, and when the case is reached neither is entitled to it, the case will be dismissed. Pafhausen v. State, 94 Miss. 103, 47 So. 897, 1908 Miss. LEXIS 29 (Miss. 1908).

Where appeal bond filed within two years but citation not served on appellee nor transcript filed in Supreme Court within that time, the appeal will be dismissed. Beasley v. Cottrell, 94 Miss. 253, 47 So. 662, 1908 Miss. LEXIS 22 (Miss. 1908).

10. Filing of cross-appeal.

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).

Supreme court refused to review chancellor’s refusal to grant complainant damages in action to quiet title on defendant’s appeal where no cross-appeal was filed by complainant. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

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).

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).

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. Forrest County v. Thompson, 204 Miss. 628, 37 So. 2d 787, 1948 Miss. LEXIS 395 (Miss. 1948).

Appellee may file cross assignment of error. Webb Sumner Oil Mill v. Southern Coal Co., 129 Miss. 127, 91 So. 698, 1922 Miss. LEXIS 15 (Miss. 1922).

Cross appeal and cross assignment of errors not considered where filed after submission of case. Reid v. Yazoo & M. V. R. Co., 94 Miss. 639, 47 So. 670, 1909 Miss. LEXIS 323 (Miss. 1909).

11. Effect of appeal.

Lower court without power to proceed further with trial until appeal disposed of. Jennings v. Shapira, 131 Miss. 596, 95 So. 305, 1923 Miss. LEXIS 198 (Miss. 1923).

12. Matters reviewable in general.

Defendant’s double jeopardy claim was properly before the appellate court because it was considered a final judgment pursuant to Miss. Code Ann. §11-51-3. Roberson v. State, 856 So. 2d 532, 2003 Miss. App. LEXIS 404 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 569 (Miss. 2003).

Supreme Court can only review matters on appeal as were considered by lower court. Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

Supreme Court may not act upon or consider matters which do not appear in record and must confine itself to what actually does appear in record. Ditto v. Hinds County, 665 So. 2d 878, 1995 Miss. LEXIS 585 (Miss. 1995).

The issue of whether the interrogation of a juvenile without the presence of his mother was violative of statutory law was not moot and would be addressed on appeal, even though the juvenile’s sentence of 6 months’ probation had been completed, since appellate review of the issue was necessary in order to avoid future repetition by law enforcement officers. M.A.C. v. Harrison County Family Court, 566 So. 2d 472, 1990 Miss. LEXIS 449 (Miss. 1990).

Assignment of error not considered where decision will not affect right of appellant. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 1921 Miss. LEXIS 113 (Miss. 1921).

Supreme Court on determining bill without equity will not retain case because of great public importance in order to settle principles. Lampton v. Edwards, 54 So. 245 (Miss. 1911).

Question settled by Supreme Court not open for review unless resulting evil is manifest and mischievous. Moss Point Lumber Co. v. Board of Sup'rs, 89 Miss. 448, 42 So. 290, 1906 Miss. LEXIS 103 (Miss. 1906).

13. —Moot issues.

Although judicial discipline proceeding was moot insofar as it required that judge leave office since he had already left office and was not a candidate for reelection, Supreme Court would hear case given that judicial conduct is a matter of great public interest and Supreme Court decisions on same serve as guide for entire judiciary. Mississippi Comm'n on Judicial Performance v. Dodds, 680 So. 2d 180, 1996 Miss. LEXIS 425 (Miss. 1996).

An appeal from a judgment affirming a decision of the board of trustees of a school district to expel a student was not rendered moot by the student’s completion of the semester while the appeal was pending. The expulsion, if upheld, should have as its legal consequence the nullification of the student’s credit for the semester in question, thus the case is not moot. Furthermore, school expulsions or suspensions are, in most instances, capable of repetition yet evade review. Jones v. Board of Trustees, 524 So. 2d 968, 1988 Miss. LEXIS 189 (Miss. 1988).

Supreme Court will not adjudicate moot questions and will not render judgment which is unenforceable and useless. Sheldon v. Ladner, 205 Miss. 264, 38 So. 2d 718, 1949 Miss. LEXIS 428 (Miss. 1949).

Appeal in suit to enjoin election not entertained after election is held. McDaniel v. Hurt, 92 Miss. 197, 41 So. 381, 190 Miss. LEXIS 3 (Miss. 1906).

14. —Jurisdiction.

If chancellor sustains demurrer to bill in equity on ground of no equity jurisdiction and declines jurisdiction when in fact case is good one in equity, his action is reviewable by Supreme Court. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Question of whether chancery court has full or general jurisdiction of proceedings to remove disabilities of minority under § 159(f), Constitution of 1890, because chancery court was invested with jurisdiction for removal of disabilities of minority when Constitution became effective will not be passed on by Supreme Court when another decisive question will dispose of case. Dyer v. Russell, 204 Miss. 719, 38 So. 2d 104, 1948 Miss. LEXIS 400 (Miss. 1948).

The question of sufficiency of process may be raised in the Supreme Court for the first time. Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 1948 Miss. LEXIS 244 (Miss. 1948).

Whether cross bill presents matter of common law or equity jurisdiction will not be first considered on appeal. Schaff v. Kahn & Bernstein, 121 Miss. 412, 83 So. 622, 1919 Miss. LEXIS 176 (Miss. 1919).

Order of chancellor sustaining demurrers to bill and ordering transfer to the circuit court is appealable. Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, 1917 Miss. LEXIS 203 (Miss. 1917).

Defendant not objecting to jurisdiction of chancery court and filing cross bill held estopped on appeal from questioning jurisdiction. Indianola Compress & Storage Co. v. Southern R. Co., 110 Miss. 602, 70 So. 703, 1915 Miss. LEXIS 88 (Miss. 1915).

Question of jurisdiction may be raised at any time. 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); Ruff v. Montgomery, 83 Miss. 184, 35 So. 465, 1903 Miss. LEXIS 30 (Miss. 1903), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); McPhail v. Blann, 47 So. 666 (Miss. 1908), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Greenwood v. Weaver, 96 Miss. 604, 50 So. 981, 1910 Miss. LEXIS 154 (Miss. 1910); Rodgers v. Hattiesburg, 99 Miss. 639, 55 So. 481, 1911 Miss. LEXIS 234 (Miss. 1911); Xydias v. Pellman, 121 Miss. 400, 83 So. 620, 1919 Miss. LEXIS 174 (Miss. 1919); Brasham v. State, 140 Miss. 712, 106 So. 280, 1925 Miss. LEXIS 306 (Miss. 1925).

15. —Process.

Writ of seizure returnable in middle of term of circuit court is triable at next succeeding term, and judgment entered at term at which return is erroneous, and though not subject to collateral attack may be corrected by appeal. Willsford v. Meyer-Kiser Corp., 139 Miss. 387, 104 So. 293, 1925 Miss. LEXIS 165 (Miss. 1925).

Lower court may after appeal correct sheriff’s return so as to show valid service and such amendment will be considered by appellate court. H. Lupkin & Sons v. Russell, 108 Miss. 742, 67 So. 185, 1914 Miss. LEXIS 267 (Miss. 1914).

16. —Rulings on particular motions.

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).

Where demurrer improperly sustained as to one of two counts of declaration, appellate court will not pass on question presented by other. Hudson v. Mississippi C. R. Co., 95 Miss. 41, 48 So. 289, 1909 Miss. LEXIS 204 (Miss. 1909).

Overruling accused’s objection to bill of particulars not reviewed on appeal unless gross abuse of discretion shown. Richberger v. State, 90 Miss. 806, 44 So. 772, 1907 Miss. LEXIS 122 (Miss. 1907).

17. —Instructions.

In employee’s suit against employer for damages for wrongful discharge, where no appeal is taken by employee from judgment entered pursuant to peremptory instruction to return verdict for unpaid salary to date of judgment, correctness of the instruction, which resulted in disallowance of incidental damages claimed by employee, is not before the Supreme Court. Masonite Corp. v. Handshoe, 208 Miss. 166, 44 So. 2d 41, 1950 Miss. LEXIS 238 (Miss. 1950).

Peremptory instruction granted, marked and filed became part of record and reviewable on appeal. McCorkle v. Illinois C. R. Co., 101 Miss. 124, 57 So. 419, 1911 Miss. LEXIS 106 (Miss. 1911).

18. —Other particular matters.

Once a judge has exercised his or her discretion and determined that a juror probably could not be impartial, that determination may not be assigned on appeal as error. Coverson v. State, 617 So. 2d 642, 1993 Miss. LEXIS 168 (Miss. 1993).

Decision of judge as to legality of place designated for holding court other than the regular court house not open to collateral attack. Brookhaven Lumber & Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484, 1923 Miss. LEXIS 101 (Miss. 1923).

Judgment dismissing action for untruthfulness of allegation of poverty in affidavit in lieu of security for costs is reviewable by Supreme Court. Feazell v. Soltzfus, 98 Miss. 886, 54 So. 444 (Miss. 1910).

19. Presentation and objection in lower court, necessity of.

Where party against whom motion for summary judgment is made wishes to attack one or more of affidavits upon which motion is based, he must file in trial court motion to strike affidavit, and failure to file motion to strike constitutes waiver of any objection to affidavit. Travis v. Stewart, 680 So. 2d 214, 1996 Miss. LEXIS 530 (Miss. 1996).

Objection to use of affidavit in connection with summary judgment motion may not be raised for first time on appeal. Travis v. Stewart, 680 So. 2d 214, 1996 Miss. LEXIS 530 (Miss. 1996).

Failure to raise a specific objection to testimony at trial will result in a waiver of this point on appeal. Jones v. State, 678 So. 2d 707, 1996 Miss. LEXIS 411 (Miss. 1996).

Although the justice of the peace or the mayor or the police justice, in appeals from their courts, are required to transmit to the proper clerk a certified copy of the record of the proceedings, 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, and no error can be predicated on that ground on appeal to the supreme court. Whittington v. State, 218 Miss. 631, 67 So. 2d 515, 1953 Miss. LEXIS 581 (Miss. 1953).

Errors committed in county court, not complained of in circuit court on appeal thereto, are waived, and will not be considered in the Supreme Court. Eaton v. Hattiesburg Auto Sales Co., 151 Miss. 211, 117 So. 534, 1928 Miss. LEXIS 298 (Miss. 1928).

Question of trial errors not raised below may not be raised on appeal. De Laval Separator Co. v. Cutts, 142 Miss. 379, 107 So. 522, 1926 Miss. LEXIS 87 (Miss. 1926).

Consideration of points first made on suggestion of error optional with court. Mars v. Germany, 135 Miss. 387, 100 So. 23, 1924 Miss. LEXIS 44 (Miss. 1924).

New points raised by suggestion of error not considered. Lusk v. Seal, 129 Miss. 228, 91 So. 386, 1922 Miss. LEXIS 4 (Miss. 1922).

20. —Issues considered on appeal.

A search and seizure question was preserved for review by the Supreme Court, even though the defendant did not use the term “Fourth Amendment” or “Section 23” at the initial suppression hearing, where there was no doubt that the defendant was seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, § 23 of the Mississippi Constitution. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

Errors affecting fundamental rights are exceptions to 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).

Where defendant failed to object to search warrant when offered in evidence but did request peremptory instruction and, after trial, made motion in arrest of judgment, the Supreme Court will treat the question as though defendant made timely objection. Jenkins v. State, 207 Miss. 281, 42 So. 2d 198, 1949 Miss. LEXIS 338 (Miss. 1949).

Insufficiency of bigamy indictment may be raised for first time on appeal when indictment is fatally defective for failure to set forth time, place and circumstance of former marriage, or name of person with whom former marriage is alleged to have been contracted. Wash v. State, 206 Miss. 858, 41 So. 2d 29, 1949 Miss. LEXIS 307 (Miss. 1949).

21. —Issues not considered on appeal.

Party was procedurally barred from raising issue of alleged error in use of jury instruction where no contemporaneous objection was made. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Defendant’s argument as to portion of jury instruction to which no objection was made at trial was procedurally barred. Tran v. State, 681 So. 2d 514, 1996 Miss. LEXIS 432 (Miss. 1996).

Defendant waived appellate review of his claim that trial court erred in allowing evidence of marijuana and syringes at his trial for possession of methamphetamine; in his objection at trial, defendant complained of relevancy of marijuana to methamphetamine charge, but on appeal, his claim was bottomed on prejudicial effect of introduction of evidence on jury’s decision. (Per Smith, J., with the Chief Justice, a Presiding Justice, and one Justice concurring, two Justices concurring in result only, and a Presiding Justice concurring and joining in separate concurrence.) Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Defendant convicted of possessing methamphetamine waived appellate review of his claim that trial court erred by refusing his instruction which correctly spoke to jury’s need to find that defendant was “beyond a reasonable doubt,” “aware of the presence and character of the particular substance . . . and was intentionally and consciously in possession of it”; defense counsel refused to delete portions of that proposed instruction that trial court found offending and superfluous, and defendant, without objection, refused to submit amended version upon trial court’s request. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Contention by plaintiff in medical malpractice action that defendants had improperly supported motion for summary judgment with affidavit of expert witness whose identity had not previously been disclosed despite request by plaintiff for disclosure of identity and opinions of experts who would be used at trial was waived and could not be considered on appeal where plaintiff did not file motion to strike affidavit or file rebuttal affidavit. Travis v. Stewart, 680 So. 2d 214, 1996 Miss. LEXIS 530 (Miss. 1996).

Justice court judge obstructed justice where, after being served with formal complaint by Commission on Judicial Performance, he circulated order to Constables and members of staff demanding that they deliver to him official and unofficial notes and evidence relating to cases and allegations against him and that failure to abide by his orders would constitute grounds for contempt, even though judge never executed order as it was an attempt to knowingly and intentionally intimidate staff in performance of their duties and as potential witnesses against judge. Mississippi Comm'n on Judicial Performance v. Dodds, 680 So. 2d 180, 1996 Miss. LEXIS 425 (Miss. 1996).

Defendants, by failing to object at trial, waived any error in admission of police officer’s testimony that he had asked one defendant, whose child died from cocaine overdose, whether cocaine was used as a tool to quiet the child. Jones v. State, 678 So. 2d 707, 1996 Miss. LEXIS 411 (Miss. 1996).

Trial issue raised for first time in defendant’s rebuttal brief on appeal would not be considered. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Court will not consider issues raised for first time in rebuttal brief on appeal; appellants cannot be allowed to ambush appellees in their rebuttal briefs, thereby denying appellees opportunity to respond to appellants’ arguments. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Mother was procedurally barred from raising on appeal claim that Chancellor erred in ordering mother and her current husband to take a drug test, the failure of which would result in change of custody, where she failed to make a contemporaneous objection. Riley v. Doerner, 677 So. 2d 740, 1996 Miss. LEXIS 287 (Miss. 1996).

Passenger’s objection “for the record” to jury instruction requiring verdict for driver if jury found that one vehicle accident was “unavoidable” was not put to court in specific meaningful manner and resulted in waiver of issue on appeal. Shields v. Easterling, 676 So. 2d 293, 1996 Miss. LEXIS 307 (Miss. 1996).

The rule that questions not raised in the lower court will not be reviewed on appeal to the Supreme Court applies to the Supreme Court’s review of appeals involving collateral attacks originating in the lower court as well as its review of convictions flowing in the wake of direct appeal, and is particularly true where constitutional questions are involved; thus, a post-conviction relief petitioner, by failing to attack the constitutionality of the Mississippi Uniform Post-Conviction Collateral Relief Act (§§99-39-1 et seq.) in the lower court, waived any error in this regard and could not seek reversal of the trial court’s ruling in the Supreme Court. Patterson v. State, 594 So. 2d 606, 1992 Miss. LEXIS 42 (Miss. 1992).

A defendant failed to preserve for appeal the issue of whether the trial court abused its discretion in refusing the defendant’s request for a preliminary determination as to whether his prior convictions could be used for impeachment, where the defendant did not make a proffer of the testimony that he would have offered. Settles v. State, 584 So. 2d 1260, 1991 Miss. LEXIS 456 (Miss. 1991).

Fact that judgment of conviction in prosecution for assault and battery with intent to kill and murder erroneously recites that case was tried by jury of twelve consisting of named juror and eleven others, named juror being member of regular jury panel for term but not in fact on this jury, will not be considered by supreme court on appeal when affidavits setting forth facts were filed long after motion for new trial had been overruled and after court term had adjourned, and matter was not presented to trial court for correction. Craig v. State, 208 Miss. 528, 44 So. 2d 860, 1950 Miss. LEXIS 270 (Miss. 1950).

Where suit was brought against vendor of realty for breach of warranty based on prior owner’s reservation of one half of minerals and was tried on assumption that reservation was valid, Supreme Court refused to consider validity of reservation for first time on appeal. Meredith v. Pratt, 208 Miss. 412, 44 So. 2d 521, 1950 Miss. LEXIS 257 (Miss. 1950).

Where assignment of error related to improper remarks of district attorney which did not appear in the record and no special bill of exceptions was actually taken, Supreme Court refused to notice the alleged error. Page v. State, 208 Miss. 347, 44 So. 2d 459, 1950 Miss. LEXIS 254 (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).

Exclusion of evidence by trial court will not be considered on appeal when evidence offered was large box of vouchers and invoices, offered en masse, without individual consideration of their materiality, and appellant failed to offer any individual exhibit although court offered to permit any or all papers to be identified, their materiality shown and introduction then made. Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So. 2d 916, 1949 Miss. LEXIS 443 (Miss. 1949).

Objection to admission of evidence must be specific; general objection to admission of evidence overruled not considered on appeal, unless evidence was inadmissible for any purpose. Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445, 1925 Miss. LEXIS 288 (Miss. 1925).

In absence of record objection, no complaint of admission of statement will be heard. Bowman v. State, 141 Miss. 115, 106 So. 264, 1925 Miss. LEXIS 218 (Miss. 1925).

Point as to validity of Sunday contract, not raised directly or inferentially in the court below, will not be considered on appeal. Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 1925 Miss. LEXIS 213 (Miss. 1925).

Objection to revivor in administrator’s name cannot be made for first time on appeal. Weaver v. Turner, 125 Miss. 250, 87 So. 641, 1921 Miss. LEXIS 114 (Miss. 1921).

Failure to object below to misnaming of complainant precluded raising point on appeal. National Surety Co. v. Board of Sup'rs, 120 Miss. 706, 83 So. 8, 1919 Miss. LEXIS 125 (Miss. 1919).

On appeal from order discharging receiver and awarding damages subsequent order of court is not reviewable. Huston v. King, 119 Miss. 347, 80 So. 779, 1919 Miss. LEXIS 7 (Miss. 1919).

Objection to want of arraignment of accused, not made in court below, not considered on appeal. Washington v. State, 93 Miss. 270, 46 So. 539, 1908 Miss. LEXIS 95 (Miss. 1908).

Rulings on admission and exclusion of evidence will not be considered on appeal where motion for new trial did not direct court’s attention to particular rulings. Carpenter v. Savage, 93 Miss. 233, 46 So. 537, 1908 Miss. LEXIS 92 (Miss. 1908).

22. Motion for new trial in lower court, necessity of.

Contention that verdict in suit for property damage growing out of collision of automobiles was contrary to overwhelming weight of evidence is not properly presented for review on appeal, where no motion for new trial was filed in the lower court raising point. Gilmer v. Gunter, 46 So. 2d 447 (Miss. 1950).

The attorney general may waive motion for a new trial as a prerequisite for appeal in a criminal prosecution. Holmes v. State, 201 Miss. 509, 29 So. 2d 312, 1947 Miss. LEXIS 411 (Miss. 1947).

While motion for new trial is unnecessary to obtain review 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 it, and judgment is not final until disposed of, 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).

Failure to move for new trial defeats review as to inadequacy of damages. Tendall v. Davis, 129 Miss. 30, 91 So. 701, 1922 Miss. LEXIS 17 (Miss. 1922).

The purpose of rule 6 of the rules of the Supreme Court is to dispense with the necessity for a motion for new trial when the error assigned is based upon any ruling made in the trial, but in the absence of error in any of the rulings of the trial court, the rule in question does not dispense with the necessity for a motion for a new trial when the assignment of error is based solely upon objection to the amount of the verdict. Coccora v. Vicksburg Light & Traction Co., 126 Miss. 713, 89 So. 257, 1921 Miss. LEXIS 68 (Miss. 1921).

23. Requirement of final judgment or order.

Appellate court lacked jurisdiction to hear an appeal because a chancellor’s interim judgment was interlocutory in nature and not a final, appealable judgment where the language in the interim judgment that it was a final judgment had been scratched out and initialed by the chancellor, the chancellor had apparently not ruled on a pending issue regarding attorneys’ fees, and there was no final judgment certification. Lewis v. Harvey (In re Estate of Lewis), 135 So.3d 202, 2014 Miss. App. LEXIS 141 (Miss. Ct. App. 2014).

An appeal cannot be taken in a criminal case from a verdict of the jury without the judgment and sentence of the court having been rendered. Lang v. State, 238 Miss. 677, 119 So. 2d 608, 1960 Miss. LEXIS 456 (Miss. 1960).

Without 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).

Final judgment of circuit court is judgment adjudicating merits of controversy. 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).

No appeal is allowable from circuit court judgment unless in all respects final. State ex rel. Rice v. Large, 171 Miss. 330, 157 So. 694, 1934 Miss. LEXIS 253 (Miss. 1934).

Judgment, putting statute of limitations respecting appeals into operation, lacks finality 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).

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 it. Hayden v. State, 81 Miss. 55, 32 So. 922, 1902 Miss. LEXIS 130 (Miss. 1902).

The court has no jurisdiction of an appeal by the state in criminal cases except from final judgments. State v. McDowell, 72 Miss. 138, 17 So. 213, 1894 Miss. LEXIS 133 (Miss. 1894).

24. —Rulings on demurrers.

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).

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).

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).

In quo warranto proceeding order merely ruling on demurrer was not appealable. State ex rel. Rice v. Large, 171 Miss. 330, 157 So. 694, 1934 Miss. LEXIS 253 (Miss. 1934).

Judgment sustaining demurrer to declaration not a final judgment. Bank of Courtland v. Long Creek Drainage Dist., 133 Miss. 531, 97 So. 881, 1923 Miss. LEXIS 161 (Miss. 1923).

Where demurrer sustained to bill and 60 days granted in which to amend, appeal then taken from order sustaining demurrer should be dismissed. Armstrong v. Moore, 112 Miss. 511, 73 So. 566, 1916 Miss. LEXIS 138 (Miss. 1916).

Sustaining demurrer and allowing thirty days to file amended bill without dismissing bill was not a final decree. Moore v. Evans, 98 Miss. 855, 54 So. 438, 1910 Miss. LEXIS 133 (Miss. 1910).

Ruling on demurrer in action at law not reviewed where no final judgment rendered by trial court. Tate County v. Bourland, 42 So. 379 (Miss. 1906).

25. —Rulings on requests for new trials.

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 a 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).

Under the Code of 1892 the court had no jurisdiction of an appeal from an order granting a new trial until the case had been finally decided. Wood v. American Life Ins. & Trust Co., 8 Miss. 609, 1843 Miss. LEXIS 130 (Miss. 1843); Bank of Lexington v. Taylor, 10 Miss. 27, 1843 Miss. LEXIS 186 (Miss. 1843); Terry v. Robins, 13 Miss. 291, 1845 Miss. LEXIS 72 (Miss. 1845); S. & F. Dorr & Co. v. Watson & Woodhouse, 28 Miss. 383, 1854 Miss. LEXIS 185 (Miss. 1854); Brown v. Carraway, 47 Miss. 668, 1873 Miss. LEXIS 19 (Miss. 1873).

26. —Interlocutory decrees or orders.

Where disputes of fact must be settled before the law may be applied to them, an interlocutory appeal should rarely be granted. Where the question presented is one of law application, certification for appeal is not per se precluded since in some sense every question of law will likely involve some application of law to fact. Nevertheless, an interlocutory appeal ought ordinarily to be granted only where at its core the question concerns a dispute regarding the content of the applicable law, a dispute with respect to which there is a substantial basis for a difference of opinion, or where the difficulty of application makes the case the substantial equivalent of one wherein the legal principles are not well settled. American Electric, Div. of FL Industries v. Singarayar, 530 So. 2d 1319, 1988 Miss. LEXIS 418 (Miss. 1988).

The fact that a case is certified for interlocutory appeal by a lower court pursuant to Rule 5(a), Miss. Sup. Ct. R,. does not preclude a de novo review by the Supreme Court as to whether the rule’s criteria have been met and whether the application for interlocutory appeal should be granted. The Supreme Court retains absolute authority to decide whether an interlocutory appeal should be granted, notwithstanding the rule’s provision that the lower courts may assist in the exercise of that authority. American Electric, Div. of FL Industries v. Singarayar, 530 So. 2d 1319, 1988 Miss. LEXIS 418 (Miss. 1988).

A Rule 5(a), Miss. Sup. Ct. R., certificate for interlocutory appeal should include a statement of the question of law being certified and the prong or prongs of the rule deemed applicable. American Electric, Div. of FL Industries v. Singarayar, 530 So. 2d 1319, 1988 Miss. LEXIS 418 (Miss. 1988).

An order of a Circuit Court holding in abeyance a motion to dissolve a preliminary injunction was not appropriate for interlocutory appeal since the motion was not denied or granted, and thus there was no final order. State v. Europa Cruise Line, Ltd., 528 So. 2d 839, 1988 Miss. LEXIS 328 (Miss. 1988).

In exceptional circumstances appeals from circuit court interlocutory orders are warranted; thus, such appeals may be granted where the appeal may settle an important principle of law in the case and may advance the ultimate determination of the action, and where justice may be served without delay and expense to the litigant and the court. Sonford Products Corp. v. Freels, 495 So. 2d 468, 1986 Miss. LEXIS 2658 (Miss. 1986), overruled, Bickham v. Department of Mental Health, 592 So. 2d 96, 1991 Miss. LEXIS 978 (Miss. 1991).

Where an interlocutory appeal was taken by defendants in a suit for contract construction and specific performance, and the chancellor failed to make special findings of fact and law as requested by the complainants, and undisposed issues of law and fact existed at the time the appeal was taken, it was improvidently granted and was dismissed by the Supreme Court on the ground that the court lacked jurisdiction to act as a trial court in the decisions of propositions which should have been settled by the court below. Management, Inc. v. Crosby, 186 So. 2d 466, 1966 Miss. LEXIS 1313 (Miss. 1966).

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).

Appeal from interlocutory decree without allowance by the chancellor pursuant to Code 1906, § 35, (see Code 1942 § 1148), dismissed and case remanded. Greve v. McGee, 92 Miss. 190, 45 So. 706, 1907 Miss. LEXIS 23 (Miss. 1907).

27. —Other particular rulings or orders.

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).

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).

An order for psychiatric examination of an accused to ascertain his mental capacity to stand trial is not a final judgment so as to be appealable. Jaquith v. Beckwith, 248 Miss. 491, 157 So. 2d 403, 1963 Miss. LEXIS 404 (Miss. 1963).

28. Record on appeal.

Error could not be predicated on a trial court’s refusal of defense instructions where the reviewing court was not provided with a trial transcript of what transpired when the instructions were presented to the trial court; it is the duty of the appellant to see that the record of trial proceedings wherein error is claimed is brought before the reviewing court. Smith v. State, 572 So. 2d 847, 1990 Miss. LEXIS 664 (Miss. 1990).

Supreme Court will not consider matters which are not properly a part of the record before it, hence papers obtained after adjournment of trial court not presented to that court for correction will not be considered on appeal. Craig v. State, 208 Miss. 528, 44 So. 2d 860, 1950 Miss. LEXIS 270 (Miss. 1950).

The Supreme Court is without authority to consider, on motion for certiorari, a prayer that a motion for a new trial made after adjournment of the term be sent up and incorporated into the appeal record. Dobbs v. State, 200 Miss. 595, 27 So. 2d 551, 29 So. 2d 84, 1946 Miss. LEXIS 330, 1947 Miss. LEXIS 354 (Miss. 1946), cert. denied, 331 U.S. 787, 67 S. Ct. 1318, 91 L. Ed. 1817, 1947 U.S. LEXIS 2295 (U.S. 1947), overruled in part, Flowers v. State, 473 So. 2d 164, 1985 Miss. LEXIS 2140 (Miss. 1985).

Duty of appellant to perfect record to show omitted objection, and in the absence of such showing, no complaint will be heard. Bowman v. State, 141 Miss. 115, 106 So. 264, 1925 Miss. LEXIS 218 (Miss. 1925).

In the absence of a sufficient showing in the record of an abuse of advocacy, assignment of error for alleged improper argument of counsel will not be considered. McLeod v. State, 130 Miss. 83, 92 So. 828, 1922 Miss. LEXIS 199 (Miss. 1922).

Supreme Court will not consider statement dehors the record, made by the trial judge as reasons for his order. Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 1920 Miss. LEXIS 484 (Miss. 1920).

Where record shows the questions but not what the answers of a witness would have been, exclusion of such testimony cannot be reviewed. New Orleans & N. E. R. Co. v. Scarlet, 115 Miss. 285, 76 So. 265, 1917 Miss. LEXIS 210 (Miss. 1917), rev'd, 249 U.S. 528, 39 S. Ct. 369, 63 L. Ed. 752, 1919 U.S. LEXIS 2071 (U.S. 1919).

Court must try case on facts shown by record and not on briefs. Atlantic Horse Ins. Co. v. Nero, 108 Miss. 321, 66 So. 780, 1914 Miss. LEXIS 208 (Miss. 1914).

Where circuit court had no jurisdiction of appeal from justice court because of insufficiency of record, Supreme Court will hear appeal only where record is corrected by certiorari. Levis-Zukoski Mercantile Co. v. McIntyre, 93 Miss. 806, 47 So. 435, 1908 Miss. LEXIS 140 (Miss. 1908).

Affidavit not considered to help out record on appeal. Jenkins v. Barber, 85 Miss. 666, 38 So. 36, 1904 Miss. LEXIS 113 (Miss. 1904).

The Supreme Court cannot consider papers which are not a part of the record. Whit v. State, 85 Miss. 208, 37 So. 809, 1904 Miss. LEXIS 151 (Miss. 1904).

The Supreme Court alone in the exercise of its appellate jurisdiction can authoritatively determine what papers constitute the record on appeal, and the clerk of the lower court cannot be enjoined from incorporating certain papers in the transcript on the ground that they are not properly a part of the record. Portwood v. Feld, 72 Miss. 542, 17 So. 373, 1895 Miss. LEXIS 11 (Miss. 1895).

29. Review in general.

Supreme Court reviews de novo record on appeal from grant of motion for summary judgment. J. O. Hooker & Sons v. Roberts Cabinet Co., 683 So. 2d 396, 1996 Miss. LEXIS 596 (Miss. 1996).

Supreme Court will not disturb findings of Chancellor when supported by substantial evidence unless Chancellor abused his discretion, was manifestly wrong, or made finding which was clearly erroneous. Settle v. Galloway, 682 So. 2d 1032, 1996 Miss. LEXIS 573 (Miss. 1996).

Reviewing court does not consider unsupported assignments of error. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Admission of evidence is within the discretion of the chancellor, who should not be held in error for excluding repetitive and probably irrelevant evidence. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Court will consider only those matters that actually appear in the record and does not rely on mere assertions in briefs. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Question of defendant’s actual guilt of conspiracy could not be litigated on appeal from denial of postconviction relief after defendant pled guilty to conspiracy. Taylor v. State, 682 So. 2d 359, 1996 Miss. LEXIS 532 (Miss. 1996).

On appeal, Supreme Court and circuit court are limited to findings of Board of Review of Employment Security Commission. Clark Printing Co. v. Mississippi Empl. Sec. Comm'n, 681 So. 2d 1328, 1996 Miss. LEXIS 528 (Miss. 1996).

Supreme Court is ultimate expositor of state’s law and conducts de novo review on questions of law. Clark Printing Co. v. Mississippi Empl. Sec. Comm'n, 681 So. 2d 1328, 1996 Miss. LEXIS 528 (Miss. 1996).

Test of reasonableness to be applied by Supreme Court in determining whether provision of covenant for homeowners’ association is reasonable is same as that which is to be applied by chancery court, and question of validity of clear and unambiguous covenant at issue is matter of law. Griffin v. Tall Timbers Dev., 681 So. 2d 546, 1996 Miss. LEXIS 516 (Miss. 1996).

Supreme Court would assume that trial court made sufficient findings to support summary determination that plaintiffs were not entitled to attorney fees based on defendants’ unsuccessful motion to compel withdrawal of plaintiffs’ counsel, where parties did not designate transcripts of hearings on appeal. Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 1996 Miss. LEXIS 496 (Miss. 1996).

Supreme Court would assume that trial courts made sufficient findings to support summary denials of plaintiffs’ requests for attorney fees after bringing successful motions to compel discovery, where transcripts of hearings were not designated on appeal. Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 1996 Miss. LEXIS 496 (Miss. 1996).

Supreme Court requires appellate counsel to not only make condensed statement of the case but to also support propositions of law with reasons and authorities. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Defendant’s claim that youthful offender statute was unconstitutional was procedurally barred, since defendant did not cite any authority for his proposition or give any reasons as to why his position was correct reflection of the law. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Sentencing is within complete discretion of trial court and not subject to appellate review if it is within limits prescribed by statute. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Supreme Court is under no duty to consider assignments of error when no authority is cited. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

Supreme Court will always review chancellor’s findings of fact, but Court will not disturb factual findings of chancellor when supported by substantial evidence unless Court can say with reasonable certainty that chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or applied erroneous legal standard. Cummings v. Benderman, 681 So. 2d 97, 1996 Miss. LEXIS 501 (Miss. 1996).

Even if Supreme Court disagrees with lower court on finding of fact and might have arrived at different conclusion, Supreme Court is still bound by chancellor’s findings unless manifestly wrong. Cummings v. Benderman, 681 So. 2d 97, 1996 Miss. LEXIS 501 (Miss. 1996).

In reviewing errors of law, Supreme Court proceeds de novo. Cummings v. Benderman, 681 So. 2d 97, 1996 Miss. LEXIS 501 (Miss. 1996).

Supreme Court will not reverse trial judge’s denial of motion for new trial unless Court is convinced that verdict is so contrary to weight of evidence that, if it is allowed to stand, it would sanction an unconscionable injustice. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Review of jurisdictional matters by Mississippi Supreme Court is on de novo basis, but in reviewing circuit court’s findings of fact in support of its jurisdictional holdings, Supreme Court recognizes that circuit judge heard testimony and was in a much better position to judge extent of party’s contacts with forum. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

State Supreme Court generally gives great deference to jury’s findings and will set aside verdict only when it is contrary to weight of evidence and credible testimony. Ducker v. Moore, 680 So. 2d 808, 1996 Miss. LEXIS 499 (Miss. 1996).

On review of whether jury verdict was against weight of evidence, when evidence is conflicting, state Supreme Court defers to jury’s determination of credibility of witnesses and weight of their testimony. Ducker v. Moore, 680 So. 2d 808, 1996 Miss. LEXIS 499 (Miss. 1996).

Reviewing court in divorce action will not set aside chancellor’s findings of fact on issue of adultery unless they are manifestly wrong. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Where the chancellor in a divorce action has failed to make his or her own findings of fact and conclusions of law on issue of adultery, Supreme Court will review the record de novo. Holden v. Frasher-Holden, 680 So. 2d 795, 1996 Miss. LEXIS 485 (Miss. 1996).

Supreme Court will not disturb chancellor’s findings when supported by substantial evidence, unless chancellor abused his discretion, was manifestly wrong or clearly erroneous, or erroneous legal standard was applied. United Southern Bank v. Bank of Mantee, 680 So. 2d 220, 1996 Miss. LEXIS 527 (Miss. 1996).

Supreme Court employs de novo standard of review in reviewing lower court’s grant of summary judgment; evidentiary matters are viewed in light most favorable to nonmoving party, and if any triable issues of fact exist, lower court’s decision to grant summary judgment will be reversed, but otherwise, decision is affirmed. Travis v. Stewart, 680 So. 2d 214, 1996 Miss. LEXIS 530 (Miss. 1996).

Although Supreme Court is not bound by the Commission on Judicial Performance’s findings in judicial disciplinary proceeding, Commission’s findings are given great deference when based on clear and convincing evidence. Mississippi Comm'n on Judicial Performance v. Dodds, 680 So. 2d 180, 1996 Miss. LEXIS 425 (Miss. 1996).

Standard for reviewing granting or denying of summary judgment is same standard as is employed by trial court. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Appellate court conducts de novo review of orders granting or denying summary judgment. McCullough v. Cook, 679 So. 2d 627, 1996 Miss. LEXIS 434 (Miss. 1996).

Clearly erroneous standard of review was appropriate in determining whether trial court erred in holding that defendant failed to make prima facie showing of gender discrimination in exercise of peremptory challenges against female jurors. Simon v. State, 679 So. 2d 617 (Miss. 1996).

Summary judgment is reviewed de novo. Mississippi Farm Bureau Cas. Ins. Co. v. Curtis, 678 So. 2d 983, 1996 Miss. LEXIS 409 (Miss. 1996), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

Standard of review is de novo for questions of law. Mississippi Farm Bureau Cas. Ins. Co. v. Curtis, 678 So. 2d 983, 1996 Miss. LEXIS 409 (Miss. 1996), overruled in part, Meyers v. Am. States Ins. Co., 914 So. 2d 669, 2005 Miss. LEXIS 322 (Miss. 2005).

In considering bar matters, Supreme Court examines evidence de novo and renders such orders as it deems appropriate. The Mississippi Bar v. Carter, 678 So. 2d 981, 1996 Miss. LEXIS 406 (Miss. 1996).

Supreme Court conducts de novo review in bar disciplinary matter, which necessarily includes review of sanctions imposed. Wright v. State, 678 So. 2d 963, 1996 Miss. LEXIS 220 (Miss. 1996).

In reviewing bar disciplinary matter, deference is accorded to findings of complaint tribunal but Supreme Court has nondelegable duty of ultimately satisfying itself as to facts, and reaching such conclusions and making such judgments as it considers appropriate and just. Wright v. State, 678 So. 2d 963, 1996 Miss. LEXIS 220 (Miss. 1996).

In attorney disciplinary proceedings, beyond reasonable doubt standard does not apply, but rather Supreme Court applies clear and convincing evidence standard. Wright v. State, 678 So. 2d 963, 1996 Miss. LEXIS 220 (Miss. 1996).

Alimony award will not be disturbed on appeal unless it is found to be against overwhelming weight of the evidence or manifestly in error. Parsons v. Parsons, 678 So. 2d 701, 1996 Miss. LEXIS 410 (Miss. 1996).

Defendant failed to adequately demonstrate violation of fundamental right regarding his claim of speedy trial violation in connection with delay of more than 18 months between his arrest and his indictment and trial and, thus, reviewing court would not use rule of plain error to hear speedy trial issue, which was not raised in trial court; defendant’s discussion of issue on appeal was brief and did not state how delay violated his rights. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

As a rule, Supreme Court only addresses issues on plain error review when error of trial court has impacted upon fundamental right of defendant; it has been established that where fundamental rights are violated, procedural rules give way to prevent miscarriage of justice. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Chancellor’s finding of fact will not be overturned on appeal unless manifestly erroneous. Shepard v. Jones by & Through Jones (In re Estate of Stowers), 678 So. 2d 660, 1996 Miss. LEXIS 329 (Miss. 1996).

For speedy trial purposes, finding of good cause for delay is finding of ultimate fact, and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in record substantial credible evidence from which it could have been made. Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

If trial judge applied erroneous standard in ruling on motion to dismiss on speedy trial grounds, Supreme Court will not affirm trial court’s finding of fact. Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

Supreme Court reviews conclusions of law de novo. Ramsey v. Copiah Bank, N.A., 678 So. 2d 637, 1996 Miss. LEXIS 208 (Miss. 1996).

Questions of law are subject to de novo appellate review. Bank of Mississippi v. Southern Mem. Park, 677 So. 2d 186, 1996 Miss. LEXIS 315 (Miss. 1996).

Chancellor’s ruling on findings of fact will not be disturbed on appeal unless manifestly wrong or clearly erroneous. Bank of Mississippi v. Southern Mem. Park, 677 So. 2d 186, 1996 Miss. LEXIS 315 (Miss. 1996).

Denial of requested attorney fees, incurred by perpetual trust trustee while new cemetery owner attempted to substitute trustee, resolved question of law that was subject to de novo review on appeal. Bank of Mississippi v. Southern Mem. Park, 677 So. 2d 186, 1996 Miss. LEXIS 315 (Miss. 1996).

When reviewing a jury verdict of guilty, Supreme Court is required to accept as true all evidence favorable to state, together with reasonable inferences arising therefrom, and to disregard evidence favorable to defendant; if such will support a verdict of guilty beyond a reasonable doubt and to exclusion of every reasonable hypothesis consistent with innocence, jury verdict shall not be disturbed. Rhodes v. State, 676 So. 2d 275, 1996 Miss. LEXIS 318 (Miss. 1996).

Supreme Court conducts de novo review on questions of law, including whether joint tenancy can be severed by will and whether conservator violated fiduciary duties. Herrington v. Bodman (In re Estate of Bodman), 674 So. 2d 1245, 1996 Miss. LEXIS 190 (Miss. 1996).

Supreme Court’s review of whether confession was voluntary is limited, and circuit court sits as fact finder when determining voluntariness of confession and its determination will not be reversed unless manifestly wrong. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Where counsel failed to proffer contemplated questions and answers from witnesses concerning defendant’s future behavior, Supreme Court cannot assume what the witness would have testified to. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

When reviewing denial of motion for judgment notwithstanding the verdict (JNOV), jury’s decision is afforded great deference because of jury’s position to evaluate and weigh evidence and truthfulness of witnesses’ testimony. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 1996).

Supreme Court reviewing denial of post-conviction relief in capital murder case lacked authority under state law to reweigh aggravating and mitigating circumstances in order to uphold death sentence after finding that improperly defined aggravating circumstance had been submitted to jury, and also lacked authority to engage in harmless error analysis, where case was tried and affirmed on direct appeal before passage of statute granting such authority. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Supreme Court will not disturb findings of chancellor in action for title to real property unless chancellor is manifestly wrong, clearly erroneous or applied erroneous legal standard. Dew v. Langford, 666 So. 2d 739, 1995 Miss. LEXIS 594 (Miss. 1995).

Supreme Court is without authority to disturb conclusions of chancellor in suit claiming title to real property when substantial evidence supports findings, even though Supreme Court may have found otherwise as an original matter. Dew v. Langford, 666 So. 2d 739, 1995 Miss. LEXIS 594 (Miss. 1995).

Supreme Court will not reverse final order of Mississippi State Department of Health unless agency’s decision was arbitrary or capricious. Cain v. Mississippi State Dep't of Health, 666 So. 2d 506, 1995 Miss. LEXIS 621 (Miss. 1995).

That Supreme Court will not reverse chancellor’s finding where it is supported by substantial credible evidence holds true for contempt matters. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Determination of punishment for contempt falls within discretion of chancellor, and Supreme Court will not reverse on appeal absent manifest error or application of erroneous legal standard. Varner v. Varner, 666 So. 2d 493, 1995 Miss. LEXIS 599 (Miss. 1995).

Supreme Court proceeds de novo in determining claimed errors of law. Ford v. Holly Springs Sch. Dist., 665 So. 2d 840, 1995 Miss. LEXIS 452 (Miss. 1995).

Issues of whether notice of nonrenewal of principal’s employment was timely and whether superintendent of school district had authority to issue a letter of nonrenewal to principal were questions of law to which de novo standard of review applied on appeal. Ford v. Holly Springs Sch. Dist., 665 So. 2d 840, 1995 Miss. LEXIS 452 (Miss. 1995).

In reviewing a school district’s decision not to renew an employee’s contract, the Supreme Court’s inquiry concerns whether the nonrenewal decision was (1) made for a reason not specifically prohibited by law, (2) made in accordance with the applicable procedural requirements, (3) supported by substantial evidence, and (4) arbitrary or capricious. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

When a defendant raises the issue of severance, a trial court should hold a hearing on the issue. The State has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, the defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. If a trial court follows this procedure, the Supreme Court will review the trial court’s decision under the abuse of discretion standard giving due deference to the trial court’s findings. On review, the Supreme Court will defer to the trial court’s findings even if the jury later acquits the defendant on one or more counts or if the Supreme Court concludes on appeal that a directed verdict, j.n.o.v. or new trial should have been granted on one or more counts. Corley v. State, 584 So. 2d 769, 1991 Miss. LEXIS 480 (Miss. 1991).

The Supreme Court will vacate or modify the Board of Bar Admissions’ bar examination grading decision only where it is found to be “arbitrary, capricious or malicious.” Mississippi Bd. of Bar Admissions v. Applicant F, 582 So. 2d 377, 1991 Miss. LEXIS 181 (Miss.), cert. denied, 502 U.S. 984, 112 S. Ct. 591, 116 L. Ed. 2d 616, 1991 U.S. LEXIS 6863 (U.S. 1991).

The Supreme Court has the independent authority to reassess the punishment meted out by the Complaint Tribunal and to increase or decrease the punishment as it deems proper; there is no standard as to what punishment for particular misconduct ought to be, and cases are considered on a case by case basis. Mississippi State Bar v. Attorney D., 579 So. 2d 559, 1991 Miss. LEXIS 252 (Miss. 1991).

The Supreme Court conducts a de novo review in a bar disciplinary matter which necessarily includes a review of the sanctions imposed. Deference is accorded the findings of the complaint tribunal but the Supreme Court “has the non-delegable duty of ultimately satisfying itself as to the facts, and reaching such conclusions and making such judgments as it considers appropriate and just.” Mississippi State Bar v. Smith, 577 So. 2d 1249, 1991 Miss. LEXIS 185 (Miss. 1991).

In the youth court, as elsewhere, requests for continuance are addressed to the sound discretion of the court, except that in youth court more so than almost any other there is an imperative that the Court proceed with the matter as promptly as may fairly be done. The Supreme Court will not reverse the youth court in exercising its discretion in these cases unless the youth court abused its discretion and the Supreme Court is convinced that injustice would result therefrom. In Interest of T.L.C., 566 So. 2d 691, 1990 Miss. LEXIS 431 (Miss. 1990), overruled in part, D.T. v. Hinds Cnty. Youth Court (In re J.T.), 188 So.3d 1192, 2016 Miss. LEXIS 165 (Miss. 2016).

The Supreme Court acts as the fact-finder in judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, and the recommendations of the Mississippi Judicial Performance Commission. However, the Supreme Court is not bound by the recommendations of the Commission and may impose additional sanctions. Mississippi Judicial Performance Com. v. Walker, 565 So. 2d 1117, 1990 Miss. LEXIS 291 (Miss. 1990).

The review of the decisions of the Workers’ Compensation Commission is like the review of any other administrative body which sits as a trier of fact. If the decision of the Commission is based upon substantial evidence and there is no error of law, the decision will be affirmed on appeal. Thus, if there is a quantum of credible evidence which supports the decision of the Commission, no court will reverse the decision. The Supreme Court will not determine where the preponderance of the evidence lies when the evidence is conflicting, the assumption being that the Commission, as the trier of facts, has previously determined which evidence is credible and which is not. This is not to say that the reviewing court will merely “rubber stamp” the Commission’s actions; where no evidence or only a scintilla of evidence supports a Workers’ Compensation Commission decision, the Supreme Court would not hesitate to reverse. Metal Trims Industries, Inc. v. Stovall, 562 So. 2d 1293, 1990 Miss. LEXIS 277 (Miss. 1990).

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).

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).

Statement by trial judge that accused waived requirement of Code 1942 § 2505, that copy of indictment be delivered to him must be given great weight by supreme court on appeal of defendant from judgment of conviction. Simmons v. State, 208 Miss. 586, 45 So. 2d 149, 1950 Miss. LEXIS 276 (Miss. 1950).

On appeal, Supreme Court is limited to facts which are of record, and reasonable inference therefrom. American Life Ins. Co. v. Walker, 208 Miss. 1, 43 So. 2d 657, 1949 Miss. LEXIS 401 (Miss. 1949).

Function of Supreme Court as appellate court is to examine record of trial and determine whether any error of law was committed by trial court, and, in that connection, whether facts in evidence are sufficient to sustain jury’s verdict. Dickins v. State, 208 Miss. 69, 43 So. 2d 366, 1949 Miss. LEXIS 409 (Miss. 1949).

Supreme Court is limited on review to case as presented to jury in trial court and is not permitted to conjecture as to what result might or could have been had recovery been sought on some other ground. Picard v. Waggoner, 204 Miss. 366, 37 So. 2d 567, 1948 Miss. LEXIS 375 (Miss. 1948).

Determination must be made solely on the record of the court below. Hemphill v. Smith, 128 Miss. 586, 91 So. 337, 1922 Miss. LEXIS 141 (Miss. 1922).

A question, not raised either by assignment of error or mentioned in brief of the appellant, need not be considered on appeal. McCaleb v. McCaleb, 110 Miss. 486, 70 So. 563, 1915 Miss. LEXIS 62 (Miss. 1915), modified, 113 Miss. 337, 74 So. 275, 1917 Miss. LEXIS 106 (Miss. 1917).

Supreme Court may ignore theory on which case tried in lower court. Yazoo & M. V. R. Co. v. Hawkins, 104 Miss. 55, 61 So. 161, 1913 Miss. LEXIS 8 (Miss. 1913).

Where case submitted on agreed statement of facts, Supreme Court can look only to facts set out in such statement. Grant v. Independent Order of Sons & Daughters of Jacob, 97 Miss. 182, 52 So. 698, 1910 Miss. LEXIS 266 (Miss. 1910).

Issues on appeal must be same as those made in trial court. Vicksburg Mfg. & Supply Co. v. J. H. Jaffray Constr. Co., 94 Miss. 282, 49 So. 116, 1908 Miss. LEXIS 57 (Miss. 1908).

Question not directly involved and unnecessary to decision need not be considered. Adams v. Samuel R. Bullock & Co., 94 Miss. 27, 47 So. 527, 1908 Miss. LEXIS 15 (Miss. 1908).

30. —Abuse of discretion.

Appellate court applies abuse of discretion standard of review when determining whether trial court erred in refusing additur or new trial. Lewis v. Hiatt, 683 So. 2d 937, 1996 Miss. LEXIS 632 (Miss. 1996).

Admissibility of photographs rests within sound discretion of trial court which will be upheld unless there has been abuse of discretion. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Standard of review for trial court’s decision on whether to award attorney fees to party who successfully brings motion to compel discovery is abuse of discretion standard. Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 1996 Miss. LEXIS 496 (Miss. 1996).

Supreme Court would not reach issues of school board’s statutory power to create alcohol policy for its students and set punishments for violation of such policy and whether student suspended in adherence to such policy received procedural due process, where such issues were not raised in proceedings below with respect to student’s suspension; review procedure was not available for purpose of settling abstract or academic questions, and Supreme Court had no power to issue advisory opinions. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

When defendant alleges that he cannot obtain impartial jury without change of venue, lower court’s decision to deny such motion is within trial judge’s sound discretion; decision of lower court will not be overturned if that discretion has not been abused. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Standard of review when trial court institutes sanctions for discovery abuses is whether trial court abused its discretion in its decision; Supreme Court will affirm unless there is definite and firm conviction that trial court committed clear error of judgment in conclusion it reached upon weighing of relevant factors. Kinard v. Morgan, 679 So. 2d 623, 1996 Miss. LEXIS 422 (Miss. 1996).

Standard of review for award of attorneys’ fees is abuse of discretion, and such awards must be supported by credible evidence. Regency Nissan v. Jenkins, 678 So. 2d 95, 1996 Miss. LEXIS 435 (Miss. 1996).

Chancellor’s ruling on findings of fact will not be disturbed on appeal unless manifestly wrong or clearly erroneous. Bank of Mississippi v. Southern Mem. Park, 677 So. 2d 186, 1996 Miss. LEXIS 315 (Miss. 1996).

Supreme Court will reverse trial judge’s denial of request for new trial only when such denial amounts to abuse of that judge’s discretion. Shields v. Easterling, 676 So. 2d 293, 1996 Miss. LEXIS 307 (Miss. 1996).

Supreme Court will not disturb trial court’s ruling on matters pertaining to redirect unless there has been clear abuse of discretion. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 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).

Abuse of discretion standard applies to Supreme Court’s review of trial judge’s decision not to allow rebuttal testimony. 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).

If trial court follows proper procedure in determining whether multi-count indictment warrants severance, Supreme Court will give deference to trial court’s findings on review, employing abuse of discretion standard. Hughes v. State, 665 So. 2d 852, 1995 Miss. LEXIS 564 (Miss. 1995).

No reversal for refusal of continuance unless abuse of sound discretion is clear. Continental Ins. Co. v. Brown, 142 Miss. 199, 106 So. 633, 1926 Miss. LEXIS 48 (Miss. 1926).

Conviction not reversed on appeal for refusal of change of venue except on clear showing of abuse of trial court’s discretion. Dalton v. State, 141 Miss. 841, 105 So. 784, 1925 Miss. LEXIS 199 (Miss. 1925).

31. —Federal questions.

Law of case rule is inapplicable on second appeal where question involved arises under Constitution and laws of the United States. Louisville & N. R. Co. v. State, 107 Miss. 597, 65 So. 881, 1914 Miss. LEXIS 130 (Miss. 1914).

Federal Supreme Court decisions on the Constitution of the United States are binding on state courts. State v. Louisville & N.R.R., 97 Miss. 35, 51 So. 918 (1910).

The Supreme Court will consider authoritative decisions of the Supreme Court of the United States on Federal question. Overton v. State, 70 Miss. 558, 13 So. 226 (Miss. 1893).

32. —Presumptions.

Judgment of circuit court as to qualification of juror is prima facie correct. Donahue v. State, 142 Miss. 20, 107 So. 15, 1926 Miss. LEXIS 55 (Miss. 1926).

No presumption of verdict for certain defendant being influenced by erroneous peremptory instruction for other defendant. Gilliam v. McLemore, 141 Miss. 253, 106 So. 99, 1925 Miss. LEXIS 213 (Miss. 1925).

Where stenographer’s notes of evidence not set up or stricken, presumption is that evidence supported chancellor’s decree. Berry v. Dampier, 131 Miss. 893, 95 So. 744, 1923 Miss. LEXIS 224 (Miss. 1923).

33. —Comments or argument of counsel.

Prosecutor’s closing argument that defendant’s accomplices were not being tried because they had been exonerated in prior judicial hearing was proper response to defense counsel’s references to the fact that no action was being taken against defendant’s accomplices. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutor’s closing argument during guilt phase that “This man deserves everything that he can get for the most brutal murder” and “He’s guilty” were not personal opinion comments, as prosecutor never said that she believed that defendant was guilty or that she believed that defendant deserved the death penalty. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecutors are afforded the right to argue anything in the State’s closing argument that was presented as evidence, but arguing statements of fact which are not in evidence or necessarily inferable from it and which are prejudicial to the defendant is error. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecuting attorney should refrain from commenting upon appearance of defendant when he has not been introduced as a witness. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Prosecuting attorney should refrain from doing anything or saying anything that would tend to cause jury to disfavor defendant due to matters other than evidence relative to the crime. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A prosecutor’s biblical references during closing argument at the sentencing phase of a capital murder prosecution did not deprive the defendant of a fair trial, as the comments were within the “broad latitude” afforded counsel in closing argument. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A trial court abused its discretion when it sustained the State’s objection to the defense counsel’s use during closing argument of a homemade chart as a visual aid to demonstrate to the jury the various standards of proof and belief which fell short of the “beyond a reasonable doubt” standard; while distinctions between reasonable doubt, all possible doubt, beyond a shadow of a doubt, and the like, are not properly the subject of jury instructions, they are permissible during a trial counsel’s closing argument. However, the trial court’s error was harmless beyond a reasonable doubt since there was nothing depicted on the chart that could not have been generously explored and explained via the spoken word. Heidelberg v. State, 584 So. 2d 393, 1991 Miss. LEXIS 437 (Miss. 1991).

Where an objection to a comment made during closing argument is sustained, and no request is made that the jury be instructed to disregard the comment, there is no error unless a fundamental right is clearly involved. Brock v. State, 530 So. 2d 146, 1988 Miss. LEXIS 361 (Miss. 1988).

The failure to obtain rulings from the trial court on objections to alleged improper argument of counsel waived the objections. Cole v. State, 525 So. 2d 365, 1987 Miss. LEXIS 2655 (Miss. 1987), cert. denied, 488 U.S. 934, 109 S. Ct. 330, 102 L. Ed. 2d 348, 1988 U.S. LEXIS 4775 (U.S. 1988).

34. —Comments on failure of defendant to testify.

Prosecutor’s comment on defendant’s demeanor and appearance may have highlighted his failure to testify, which is plainly prohibited, and the remark should not have been made. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Any error in prosecutor’s comment on defendant’s demeanor, which might have been taken as a comment on failure to testify, was cured by instructions to jurors to disregard remarks of counsel which have no basis in the evidence and to not draw any unfavorable inference against defendant because of his failure to testify. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A prosecutor’s remarks during the penalty phase of a capital murder prosecution did not constitute an improper comment on the defendant’s failure to testify where the prosecutor stated that the defendant “showed no compassion, but would send a lawyer up here and ask you for compassion,” since the argument pointed out the lack of a mitigation defense presented by the defendant, and that he was reduced to sending his lawyer in to plead for his life after all else had failed. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

The prosecutor’s closing argument in the guilt phase of a capital murder prosecution did not constitute an improper comment on the defendant’s right to remain silent following arrest where the prosecutor, while discussing a county jail inmate’s testimony as to statements made by the defendant while he was in the jail, referred to the relationship between the defendant and the witness, and described the circumstances under which the statements were made. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s closing argument in a capital murder case did not constitute a comment on the defendant’s failure to testify at trial, in spite of the defendant’s argument that the prosecutor’s comments highlighted the fact that the only people alive who could have testified as to the events surrounding the murders were the defendant and his accomplice, where the prosecutor merely stated that the defendant and his accomplice saw to it that there were no eyewitnesses, and that “people who kill their victims and kill their eyewitnesses cannot be set free.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the State’s closing argument did not constitute a comment on the defendant’s failure to take the witness stand in his own defense where the State made the following argument: “Do you think she was suffering? Do you think that’s cruel and atrocious, and what’s even more than that, what do you think was running through [defendant’s] head as he sat through watching her gag on her own blood? What do you think he was thinking?” Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

A prosecutor did not improperly comment during closing argument on the defendant’s right to remain silent where the prosecutor remarked that the victim could not talk because she was dead and stated that only the defendant and God knew what happened, but he did not observe the defendant’s silence during trial; the prosecutor’s comments would be a reference to the defendant’s failure to testify only if innuendo and insinuation were employed. Alexander v. State, 610 So. 2d 320, 1992 Miss. LEXIS 580 (Miss. 1992).

A prosecutor improperly commented during closing argument on a capital murder defendant’s failure to testify where the prosecutor stated that the defendant “hasn’t told you the whole truth yet,” that “you still don’t know the whole story,” and that the defendant was the only person alive who could give the whole story. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A prosecutor did not improperly comment on the defendant’s failure to testify when he stated during closing argument: “That’s what you have got before you, and that’s all you have got before you. All the evidence in this case points to one thing and one thing only”; the prosecutor’s comment related to the evidence presented in the trial by both the State and defense as a whole, rather than the failure of the defendant to take the stand. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In a capital murder prosecution, the prosecutor’s statement that there had not been any testimony that the defendant acted in self-defense did not constitute an impermissible comment upon the failure of the defendant to testify, where the prosecutor’s statement was made in connection with his argument that the State had proved the required element that the defendant’s actions were not done in necessary self-defense. Ladner v. State, 584 So. 2d 743, 1991 Miss. LEXIS 434 (Miss.), cert. denied, 502 U.S. 1015, 112 S. Ct. 663, 116 L. Ed. 2d 754, 1991 U.S. LEXIS 7261 (U.S. 1991).

A prosecutor’s statement in closing argument that “they” hadn’t bothered to tell the jury what the defendant was doing at a certain location was not an impermissible comment on the defendant’s failure to testify since it was proper for the prosecutor to question the defense’s inability to successfully explain the defendant’s presence in the area where the crime took place, and the prosecutor’s use of the word “they” appeared to be a reference to the defendant’s 2 attorneys rather than the defendant himself. Jimpson v. State, 532 So. 2d 985, 1988 Miss. LEXIS 428 (Miss. 1988).

An assignment of error based on the prosecutor’s comment on the defendant’s failure to testify was not procedurally barred for failure to make a contemporaneous objection because the right not to take the witness stand is a fundamental constitutional right. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

35. —Comments on failure of defendant to present evidence.

A prosecutor’s comments on the defendant’s failure to testify reached a constitutional dimension so egregious that failure on the part of the defense counsel to make a proper objection either at trial or in his motion for a new trial did not waive the error where the prosecutor made 4 separate statements telling the jury that the State’s witness’ testimony was “unopposed,” “unimpeached,” “unrebutted,” and that there was “no evidence whatsoever toward their unreliability.” Whigham v. State, 611 So. 2d 988, 1992 Miss. LEXIS 821 (Miss. 1992).

It was improper for a prosecutor to comment on a burglary defendant’s failure to call a witness who was allegedly with the defendant at the time the crime was committed, where there was no suggestion that the witness was not equally available to the State, the witness was not identified as a person under the control of the defendant, and he was not a close relative who would ordinarily be expected to be put in an unacceptable compromising position should he be called to testify as to the validity of the defendant’s alibi. Burke v. State, 576 So. 2d 1239, 1991 Miss. LEXIS 54 (Miss. 1991).

A prosecutor’s comment in closing argument regarding the defense’s failure to call the defendant’s “good friend” to testify was reversible error since the failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury. Holmes v. State, 537 So. 2d 882, 1988 Miss. LEXIS 628 (Miss. 1988).

A prosecutor’s comment during closing argument regarding the defendant’s failure to call witnesses on his own behalf was harmless error where there was substantial evidence of the defendant’s guilt and the trial judge sustained the objection to the improper statement although he did not admonish the jury when requested to do so. Brock v. State, 530 So. 2d 146, 1988 Miss. LEXIS 361 (Miss. 1988).

36. —Comments on evidence presented.

A prosecutor’s comments during closing argument, referring to the defendant as a liar, where not improper where the defendant had admitted on the witness stand that he had lied on more than one occasion about key facts, and the prosecutor’s comments were in response to evidence and testimony presented in the case. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

In a prosecution for aggravated assault and shooting into a dwelling house, comments made by the district attorney to the effect that no one knew whether the defendant contended that he was not guilty because he didn’t shoot the gun into the house or because he did shoot the gun into the house but could not appreciate the wrongfulness of that act, were comments on the defense presented, or lack thereof, rather than comments on the defendant’s failure to testify and, therefore, were not improper. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

Record does not properly preserve for review point that district attorney in prosecution for unlawful possession of intoxicating liquor accused defendant of perjury during course of argument of case, when record shows that no objection was made at time of argument and question was not raised until after argument was concluded and jury retired. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661, 1949 Miss. LEXIS 402 (Miss. 1949).

37. —Comments to jurors relating to rendition of verdict.

The prohibition against “golden rule” arguments, which ask the jurors to put themselves in the place of one of the parties, extends to criminal cases. Chisolm v. State, 529 So. 2d 635, 1988 Miss. LEXIS 348 (Miss. 1988).

A prosecutor’s remark during closing argument, to the effect that finding the defendant guilty would make the statement that law and order exists for everyone in the county, was improper. Jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether he or she wishes to “send a message” but whether he or she believes that the evidence showed the defendant to be guilty of the crime charged. Williams v. State, 522 So. 2d 201, 1988 Miss. LEXIS 125 (Miss. 1988).

38. —Comments relating to sentencing.

In the penalty phase of a capital murder prosecution, the prosecutor’s comment that “we have never heard one single witness say he ever felt sorry for what he did” was not impermissible, as it was simply an argument that none of the defendant’s mitigation witnesses indicated that the defendant was sorry for killing the victim, and was not an argument for “lack of remorse” as an aggravating factor. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

A prosecutor’s comments in closing argument during the sentencing phase of a capital case suggesting that prisoners and guards might be in danger if the defendant were to receive a life sentence rather than the death penalty were not improper. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

A prosecutor’s comments during closing argument which referred to the potential sentences for murder and manslaughter were improper. The question of punishment is categorically unrelated to whether the verdict should be murder or manslaughter. Marks v. State, 532 So. 2d 976, 1988 Miss. LEXIS 425 (Miss. 1988).

A prosecutor’s argument in the sentencing phase of a capital case regarding the possibility of the defendant being paroled and the fact that another murder defendant had committed murder after being paroled from a life sentence constituted reversible error. The argument regarding parole introduced an arbitrary factor into the sentencing process proscribed by §99-19-105(3)(a). Williams v. State, 544 So. 2d 782, 1987 Miss. LEXIS 2843 (Miss. 1987).

39. —Miscellaneous Comments.

Comments made by a prosecutor during his closing argument in a capital murder prosecution did not constitute prosecutorial misconduct, where the prosecutor stated that the victim was a human being and had a right to be protected by the law even though he may not have been wealthy or prominent or a leader in his community, in spite of the defendant’s argument that the “value” of the victim’s life should not be a factor in considering whether the defendant should live or die and that such a consideration introduces an arbitrary factor into the process, since the prosecutor’s statement was innocuous. Mackbee v. State, 575 So. 2d 16, 1990 Miss. LEXIS 831 (Miss. 1990).

A prosecutor’s references to the Bible during his closing argument were not improper. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

In a murder prosecution, the prosecutor’s comment during closing argument that the defendant was “clothed in the full protection of the Constitution of the United States and he has got what [the victim] never got. And that is a jury of 12 good people to decide his fate,” did not warrant reversal of the jury’s verdict where the comment was an isolated statement and no other portion of the closing argument focused on the exercise of constitutional rights by the defendant. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

A prosecutor’s remarks during closing argument referring to an expert as a “whore,” stating that the expert was paid $2,000, and that the expert resided outside the state should not have been made but did not constitute reversible error. Dunaway v. State, 551 So. 2d 162, 1989 Miss. LEXIS 371 (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).

A prosecutor’s comments during cross-examination of the defendant pertaining to the fact that the defendant had been released from jail after the preliminary hearing because bond had been posted did not constitute error where the remarks were made in response to the defendant’s implication that his release from jail was due to the State’s inability to present evidence sufficient to retain him in custody. Dixon v. State, 519 So. 2d 1226, 1988 Miss. LEXIS 152 (Miss. 1988).

Permitting district attorney in closing argument to refer to defendant in murder prosecution as a “black gorilla,” is reversible error. Harris v. State, 209 Miss. 141, 46 So. 2d 91, 1950 Miss. LEXIS 372 (Miss. 1950).

Court’s refusal to prevent improper argument together with refusal of proper charge as to such argument held prejudicial to defendant and constituted reversible error. Illinois C. R. Co. v. Weinstein, 99 Miss. 515, 55 So. 48, 1911 Miss. LEXIS 220 (Miss. 1911).

40. —Instructions.

Supreme Court does not review jury instructions in isolation. Hoops v. State, 681 So. 2d 521, 1996 Miss. LEXIS 433 (Miss. 1996).

On review of jury instructions, state Supreme Court does not review instructions in isolation, but rather, reads instructions as whole to determine if jury was properly instructed; accordingly, defects in specific instructions do not require reversal where all instructions taken as whole fairly, although not perfectly, announce applicable primary rules of law, however, if those instructions do not fairly or adequately instruct jury, state Supreme Court can and will reverse. Boone v. Wal-Mart Stores, 680 So. 2d 844, 1996 Miss. LEXIS 500 (Miss. 1996).

On appeal, Supreme Court does not review jury instructions in isolation; rather, they are read as whole to determine if jury was properly instructed. Shields v. Easterling, 676 So. 2d 293, 1996 Miss. LEXIS 307 (Miss. 1996).

In reviewing trial judge’s denial of request for peremptory instructions that direct a verdict, Supreme Court will consider evidence in light most favorable to appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from evidence, and if facts so considered point so overwhelmingly in favor of appellant that reasonable men could not have arrived at contrary verdict, Supreme Court is required to reverse and render; if there is substantial evidence in support of the verdict, however, affirmance is required. 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).

Supreme Court will reverse judgment on appeal because of errors of court below in erroneously granting some, and refusing other, instructions which result 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).

Error of court in overruling defendant’s motion to exclude state’s evidence and for instruction requiring jury to return verdict of not guilty made at conclusion of state’s evidence in trial of charge of unlawful possession of intoxicating liquor is waived by defendant who proceeds to introduce evidence in his own behalf. Faust v. State, 43 So. 2d 379 (Miss. 1949).

Supreme Court must find verdict improper before reversing case on ground that inaccuracy in instruction may have misled jury in reaching improper verdict. Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

Supreme Court will not reverse a case because the instruction is not happily phrased, or because not technically correct, so long as instruction is not misleading, or where the inaccuracy complained of could have had no influence on jury in reaching verdict that could be said to be improper. Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

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).

Only one of several reasons for reversal selected therefor. Richardson Corp. v. Standard Drug Co., 141 Miss. 92, 106 So. 95, 1925 Miss. LEXIS 211 (Miss. 1925).

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

Judgment not reversed for erroneous instruction unless complaining party prejudiced. Hampton v. State, 132 Miss. 154, 96 So. 165, 1923 Miss. LEXIS 43 (Miss. 1923).

If there be evidence which would have supported a contrary verdict the Supreme Court will set aside a verdict rendered on erroneous instructions unless it is clear they could not have influenced the result. Solomon v. City Compress Co., 69 Miss. 319, 10 So. 446, 1891 Miss. LEXIS 65 (Miss. 1891).

41. —Weight and sufficiency of evidence.

When Supreme Court reviews sufficiency of evidence, it looks to all of the evidence before jurors to determine whether or not reasonable, hypothetical juror could find, beyond reasonable doubt, that defendant is guilty. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

On review of sufficiency of evidence to support conviction, evidence which supports verdict is accepted as true, and state is given benefit of all reasonable inferences flowing from that evidence. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

When reviewing denial of motion for judgment notwithstanding the verdict (JNOV), Supreme Court is bound to consider evidence in light most favorable to appellee, giving that party benefit of all favorable inferences that may be reasonably drawn from evidence. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 1996).

A finding of “good cause” for a continuance under §99-17-1 is a finding of ultimate fact, and should be treated as any other finding of ultimate fact challenged on appeal, i.e., the finding will be undisturbed only where there is in the record substantial, credible evidence from which it may fairly have been made, and will ordinarily be reversed where there is a complete absence of probative evidence in the record. Folk v. State, 576 So. 2d 1243, 1991 Miss. LEXIS 57 (Miss. 1991).

Findings by a trial judge that a confession was admissible are findings of fact, which are treated as any other findings of fact; as long as the trial judge applies the correct legal standards, his or her decision will not be reversed on appeal unless it is manifestly in error or is contrary to the overwhelming weight of the evidence. Berry v. State, 575 So. 2d 1, 1990 Miss. LEXIS 849 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126, 1991 U.S. LEXIS 2673 (U.S. 1991).

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).

If a decision of the Workers’ Compensation Commission is based on substantial evidence, the circuit court and the Supreme Court are bound by the finding of fact made by the Commission. International Paper Co. v. Kelley, 562 So. 2d 1298, 1990 Miss. LEXIS 274 (Miss. 1990).

A finding of fact is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Ponthieux v. State, 532 So. 2d 1239, 1988 Miss. LEXIS 483 (Miss. 1988).

A finding of fact is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made. In re Estate of Varvaris, 528 So. 2d 800, 1988 Miss. LEXIS 264 (Miss. 1988).

Chancellor’s findings, on conflicting evidence, are conclusive on appeal unless manifestly wrong. 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).

Decree of chancellor will not be reversed unless it is manifestly erroneous, and, while it is duty of Supreme Court to affirm if there is sufficient substantial evidence to support chancellor’s finding, it is equally its duty to reverse in absence of such support where overwhelming proof is barrier against affirmance of decree. Reed v. Charping, 207 Miss. 1, 41 So. 2d 11, 1949 Miss. LEXIS 312 (Miss. 1949).

Decree of chancellor substantially supported by competent evidence will not be reversed by Supreme Court on appeal. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

Chancellor’s finding on conflicting evidence will be affirmed on appeal when his finding is not against weight of evidence and is not manifestly wrong. Williams v. Barlow, 205 Miss. 449, 38 So. 2d 914, 1949 Miss. LEXIS 442 (Miss. 1949).

Only question presented on appeal from decision of chancellor overruling motion to dismiss bill for divorce is whether chancellor was manifestly wrong in his findings and conclusions. Canerdy v. Canerdy, 37 So. 2d 490 (Miss. 1948).

On clear preponderance of evidence in favor of plaintiff, Supreme Court will reverse findings of fact by chancellor based on general and inconclusive testimony. Pannell v. Glidewell, 142 Miss. 77, 107 So. 273, 1926 Miss. LEXIS 63 (Miss. 1926).

Decree on verdict not disturbed unless manifestly wrong. Thomas v. State, 129 Miss. 332, 92 So. 225, 1922 Miss. LEXIS 46 (Miss. 1922); New Orleans & N. E. R. Co. v. Ward, 132 Miss. 462, 96 So. 401, 1923 Miss. LEXIS 56 (Miss. 1923); Louisville & N. R. Co. v. Jones, 134 Miss. 53, 98 So. 230, 1923 Miss. LEXIS 234 (Miss. 1923); Ayers v. Tonkel, 138 Miss. 712, 103 So. 361, 1925 Miss. LEXIS 77 (Miss. 1925); Green v. Everson, 141 Miss. 129, 106 So. 265, 1925 Miss. LEXIS 219 (Miss. 1925); Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926); Pierce v. Garrett, 142 Miss. 641, 107 So. 885, 1926 Miss. LEXIS 129 (Miss. 1926).

Chancellor’s decree based on conflicting testimony not disturbed unless manifestly wrong. Grace v. Pierce, 127 Miss. 831, 90 So. 590, 1921 Miss. LEXIS 286 (Miss. 1921); Meek v. Humphreys County, 133 Miss. 386, 97 So. 674, 1923 Miss. LEXIS 135 (Miss. 1923); Starnes v. Nation, 97 So. 881 (Miss. 1923); Planters' Gin & Milling Co. v. Greenville, 138 Miss. 876, 103 So. 796, 1925 Miss. LEXIS 96 (Miss. 1925).

Conviction on insufficient testimony reversed. Adams v. State, 47 So. 787 (Miss. 1908).

42. —Validity and construction of statutes.

Supreme Court will not pass upon constitutionality of statute unless such decision is necessary to dispose of the case. Gatlin v. State, 207 Miss. 588, 42 So. 2d 774, 1949 Miss. LEXIS 371 (Miss. 1949).

Later re-enactment of statute after construction by Supreme Court adopts construction. Burks v. Moody, 141 Miss. 370, 106 So. 528, 1926 Miss. LEXIS 429 (Miss. 1926).

One of two reasonable constructions of statute will be adhered to. Maris v. Lindsey, 124 Miss. 742, 87 So. 12, 1920 Miss. LEXIS 544 (Miss. 1920).

Prior reasonable construction placed upon statute by Supreme Court followed whether the best construction or not. Zama v. Ayers Separate School Dist., 120 Miss. 444, 82 So. 313, 1919 Miss. LEXIS 105 (Miss. 1919).

Supreme Court is bound by former construction of statute re-enacted under that construction. R. J. McLin & Co. v. Worden, 99 Miss. 547, 55 So. 358, 1911 Miss. LEXIS 229 (Miss. 1911).

While the facts of a case may be settled by agreement of the parties the Supreme Court cannot upon the mere concession or admission of counsel declare a statute valid or invalid. Jones v. Madison County, 72 Miss. 777, 18 So. 87, 1895 Miss. LEXIS 33 (Miss. 1895).

43. Disposition of appeal.

Decree of confirmation of title and removal of clouds in suit brought by purchaser of land at foreclosure sale under deed of trust will be modified so as to eliminate finding of confirmation, but affirmed as to removal of clouds when defendant mortgagor remained in possession after foreclosure sale but foreclosure sale was valid. Duncan v. Mars, 44 So. 2d 529 (Miss. 1950).

On appeal to supreme court, verdict given in trial court will not be disturbed where evidence is equally balanced or nearly so, and would warrant verdict for either party. Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So. 2d 6, 1949 Miss. LEXIS 302 (Miss. 1949).

44. —Affirmance.

When reviewing denial of motion for judgment notwithstanding the verdict (JNOV), if there is substantial evidence in support of verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in exercise of impartial judgment might have reached different conclusions, affirmance is required. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 1996).

“Substantial evidence” in support of a verdict, such as to require affirmance of trial court’s denial of appellant’s request for directed verdict, is evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of their impartial judgment might have reached different conclusions. 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).

Where appellee’s counsel states in his brief that careful examination of the record shows no error which he could with confidence assert, and therefore respectfully confesses that cause should be affirmed, supreme court will affirm judgment appealed from without reading the record. Horne v. Burnett's Lumber & Supply Co., 208 Miss. 448, 44 So. 2d 536, 1950 Miss. LEXIS 263 (Miss. 1950).

Affirmance by evenly divided court is binding judicial precedent unless and until it is overruled. Montgomery Ward & Co. v. Harland, 205 Miss. 380, 38 So. 2d 771, 1949 Miss. LEXIS 436 (Miss. 1949); Montgomery Ward & Co. v. Higgins, 201 Miss. 467, 29 So. 2d 267, 1947 Miss. LEXIS 407 (Miss. 1947).

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).

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).

The rule in passing on a ruling of a lower court is that the Supreme Court will look to the whole record, and, if in the light thereof no harm appears to have resulted to the appellant from the ruling complained of, the judgment will be affirmed, though the ruling may have been erroneous when made. Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440, 1922 Miss. LEXIS 182 (Miss. 1922).

Judgment for plaintiff affirmed where all questions settled on former appeal adversely to defendant. Supreme Lodge K. P. v. Hines, 109 Miss. 500, 68 So. 485, 1915 Miss. LEXIS 184 (Miss. 1915).

Judgment correct on merits affirmed although minor errors committed on trial. Cumberland Tel. & Tel. Co. v. Jackson, 95 Miss. 79, 48 So. 614, 1909 Miss. LEXIS 225 (Miss. 1909).

Judgment affirmed where testimony essential to consideration of question presented has been stricken from record. Pafhausen v. State, 94 Miss. 103, 47 So. 897, 1908 Miss. LEXIS 29 (Miss. 1908).

Affirmance by Supreme Court of decree of chancery court does not affect the right to request chancery court for leave to file a bill of review based on newly discovered evidence. Hall v. Waddill, 78 Miss. 16, 27 So. 936, 1900 Miss. LEXIS 71 (Miss. 1900).

The affirmance by the Supreme Court of a judgment of a circuit court does not render the judgment more effective in bar of another suit than it was before the appeal. Alabama & V. R. Co. v. McCerren, 75 Miss. 687, 23 So. 423, 1898 Miss. LEXIS 16 (Miss. 1898).

45. —Reversal; remand.

Supreme Court will not per se reverse trial court for failing to order mistrial after witness exclusion rule violation; rather, resultant degree of prejudice to defendant must first demonstrate that trial court abused its discretion. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Remand was required to determine reasonable amount of attorney fees to award perpetual trust trustee, incurred to ensure proper substitution of trustee by new cemetery owner. Bank of Mississippi v. Southern Mem. Park, 677 So. 2d 186, 1996 Miss. LEXIS 315 (Miss. 1996).

When reviewing denial of motion for judgment notwithstanding the verdict (JNOV), if facts considered point so overwhelmingly in favor of appellant that reasonable men could not have arrived at contrary verdict, Supreme Court is required to reverse and render. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 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).

Where, two years after a suit was filed for the establishment of a land line, the chancery court entered an order dismissing without prejudice the bill of complaint, a temporary injunction and a cross bill, the Supreme Court, not being an original trier of fact, would not determine the case, but would remand for reopening, to permit any party to introduce further or other evidence, and for a final decision. Everett v. Berry, 244 So. 2d 736, 1971 Miss. LEXIS 1347 (Miss. 1971).

Where fine greater than that permitted by Code 1942, § 2562, providing for maximum penalties in misdemeanor cases, was imposed for violation of Code 1942 § 2613, subsection b, providing only a minimum penalty for second conviction for unlawful possession of intoxicating liquors, supreme court, upon reversal, would remand cause to trial court for imposition of sentence. Jenkins v. State, 207 Miss. 281, 42 So. 2d 198, 1949 Miss. LEXIS 338 (Miss. 1949).

Where four justices of the Supreme Court vote to reverse judgment of conviction for attempted rape, but only three vote to reverse and dismiss, the judgment will be reversed and the cause remanded. Street v. State, 196 Miss. 818, 18 So. 2d 297, 1944 Miss. LEXIS 259 (Miss. 1944).

Where, at beginning of trial, accused’s counsel caused state’s witness to be summoned for accused and requested private interview with him, but declined court’s offer to permit conference in sheriff’s hearing, and failed to renew request after state examined witness, and examination was full and complete, case will not be reversed for such reason. Frazier v. State, 142 Miss. 456, 107 So. 674, 1926 Miss. LEXIS 110 (Miss. 1926).

To reverse, an error must have been committed in the trial favorable to appellee and prejudicial to appellant. Calicoat v. State, 131 Miss. 169, 95 So. 318, 1922 Miss. LEXIS 296 (Miss. 1922).

Judgment reversed by majority of Supreme Court, although not concurring in reasons therefor. 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).

Judgment of trial court not reversed except by majority of participating judges of Supreme Court holding specific supporting ruling erroneous. 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).

Notwithstanding that petition for setting aside default judgment failed to set forth the character of the intended defense, judgment setting aside such default judgment will not be reversed on appeal to the Supreme Court after a trial on the merits wherein the defendant attempted a substantial defense. Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440, 1922 Miss. LEXIS 182 (Miss. 1922).

Mere confession of error does not necessitate reversal of judgment or decree. Webb Sumner Oil Mill v. Southern Coal Co., 129 Miss. 127, 91 So. 698, 1922 Miss. LEXIS 15 (Miss. 1922).

Decree reversed where recovery of an impossible amount is decreed and course of trial is not entirely satisfactory. Quitman Lumber Co. v. Turner, 48 So. 819 (Miss. 1909).

Where only possible judgment reached, case will not be reversed because some of defendant’s pleas were traversed on immaterial issues. Evans v. Lilly & Co., 95 Miss. 58, 48 So. 612, 1909 Miss. LEXIS 383 (Miss. 1909).

Where accused is found entitled to bail on appeal from order denying it, and record does not show facts on which to determine amount, case will be remanded for bail to be fixed in lower court. Saunders v. Stephenson, 94 Miss. 676, 47 So. 783, 1909 Miss. LEXIS 328 (Miss. 1909).

No reversal of judgment unless prejudicial error shown. Rector v. Shippey, Outzen & Co., 93 Miss. 254, 46 So. 408, 1908 Miss. LEXIS 80 (Miss. 1908).

Case remanded where lower court passed on only one of two points involved. Edwards v. Kingston Lumber Co., 92 Miss. 598, 46 So. 69, 1908 Miss. LEXIS 207 (Miss. 1908).

46. —Granting of new trial.

On appeal from conviction of unlawful possession of intoxicating liquor all Supreme Court can grant defendant is new trial where evidence against him was so lacking in weight that court is justified in reversing case and defendant failed to ask for directed verdict in lower court at end of all evidence for both sides but incorporated in motion for new trial ground that verdict of jury was against overwhelming weight of evidence. Faust v. State, 43 So. 2d 379 (Miss. 1949).

Supreme Court may grant new trial only where trial court has erroneously refused to do so. Hattiesburg Chero Cola Bottling Co. v. Price, 143 Miss. 14, 108 So. 291, 1926 Miss. LEXIS 239 (Miss. 1926).

When decree of chancery court, rendered on bill, answer, and proof, is reversed and remanded generally, it must be tried de novo. Pigford v. Ladner, 142 Miss. 435, 107 So. 658, 1926 Miss. LEXIS 103 (Miss. 1926).

On reversal for lack of evidence, case remanded for new trial on absence of request below for directed verdict. Berry v. Magee, Gibson & Magee, 140 Miss. 307, 105 So. 518, 1925 Miss. LEXIS 263 (Miss. 1925).

New evidence of defendant’s absence when crime committed not ground for new trial. Quick v. State, 133 Miss. 634, 98 So. 108 (Miss. 1923).

New trial not granted for newly discovered evidence, where issue non est factum and due diligence not shown. John A. Shank & Co. v. Geiger, 132 Miss. 320, 96 So. 515, 1923 Miss. LEXIS 63 (Miss. 1923).

Jury’s finding held contrary to evidence and new trial awarded. Mobile & O. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113, 1921 Miss. LEXIS 239 (Miss. 1921).

Newly discovered evidence, impeaching material witness, is ground for new trial. Campbell v. State, 123 Miss. 713, 86 So. 513, 1920 Miss. LEXIS 73 (Miss. 1920).

Supreme Court can 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).

The Supreme Court will set aside a verdict and grant a new trial on consideration of the facts alone if they fail to sustain it. Monroe v. State, 71 Miss. 196, 13 So. 884, 1893 Miss. LEXIS 146 (Miss. 1893); Harris v. State, 71 Miss. 462, 14 So. 266, 1893 Miss. LEXIS 98 (Miss. 1893).

If it appears that a fourth new trial is unauthorized the court will vacate the order and remand for judgment nunc pro tunc on the third verdict, and if it was authorized the court will affirm with directions to proceed to another trial. Tagert v. Baker, 57 Miss. 303, 1879 Miss. LEXIS 77 (Miss. 1879).

Code 1906 § 800, (see Code 1942 § 1536), providing that no more than two trials shall be granted to the same party in any case, applies only to the circuit court. The power of the Supreme Court to award new trials for errors of law is without limit. Shelby v. Offutt, 51 Miss. 128, 1875 Miss. LEXIS 23 (Miss. 1875).

47. —Dismissal of appeal.

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).

Appeal from a decision in an election contest concerning a primary mayoral race was dismissed for lack of jurisdiction under Miss. Code Ann. §9-3-9 because documents required under Miss. Code Ann. §23-15-927 were not included in the appellate record. Moore v. Parker, 2007 Miss. LEXIS 127 (Miss. Mar. 8, 2007), op. withdrawn, sub. op., 962 So. 2d 558, 2007 Miss. LEXIS 476 (Miss. 2007).

Where the court declined to set aside a jury verdict finding the defendant guilty of rape, but set aside the sentence imposed by the court, found the defendant insane, and committed him to a state hospital for treatment, and directed that defendant be remanded to the circuit court for imposition of sentence, when and if he regained his sanity, there was final judgment, and the supreme court was without jurisdiction and would dismiss the appeal and remand the case to the circuit court. Lang v. State, 238 Miss. 677, 119 So. 2d 608, 1960 Miss. LEXIS 456 (Miss. 1960).

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

Statute authorizing dismissal of “pending” causes for want of prosecution held 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).

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).

Appellant allowed to dismiss appeal from decree overruling demurrer to bill, where all questions cannot be decided on appeal because supplemental bill had been filed by appellee. Wolf v. Mississippi Valley Trust Co., 130 Miss. 144, 93 So. 581, 1922 Miss. LEXIS 192 (Miss. 1922).

Supreme Court may dismiss bill on affirming decree sustaining demurrer. Parker v. Board of Sup'rs, 125 Miss. 617, 88 So. 172, 1921 Miss. LEXIS 149 (Miss. 1921).

Appeal dismissed where real purpose is to obtain affirmance. Smith v. Citizens' Bank & Trust Co., 125 Miss. 139, 87 So. 488, 1920 Miss. LEXIS 341 (Miss. 1920).

Where no petition for appeal and no appeal bond tendered Supreme Court cannot docket and dismiss cause. Calcote v. Stampley, 114 Miss. 887, 75 So. 689, 1917 Miss. LEXIS 97 (Miss. 1917).

Court cannot dismiss appeal and order writ of procedendo to issue without giving appellant an opportunity to defend. Wilson v. Handsboro, 96 Miss. 376, 50 So. 982, 1909 Miss. LEXIS 53 (Miss. 1909).

Appeal dismissed where no bond in record on appeal from justice to the circuit court. Johnson v. Marshall, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929); Humphreys v. McFarland, 48 So. 182 (Miss. 1909), overruled, Jones v. State, 155 Miss. 364, 123 So. 882, 1929 Miss. LEXIS 261 (Miss. 1929).

Where the record of a case at law does not show an appeal from a justice’s court to the circuit court and the sum demanded is less than $200, the Supreme Court of its own motion will dismiss the appeal for want of jurisdiction, although the stenographer’s notes recite that the case was appealed to the circuit court from a justice’s 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).

In default of payment of attorney fees allowed to wife on appeal by husband from a decree in a suit for divorce within the time allowed by the court therefor, the bill will be dismissed. Hall v. Hall, 77 Miss. 741, 27 So. 636, 1900 Miss. LEXIS 22 (Miss. 1900).

48. —Restitution.

The Supreme Court has inherent power on reversing a judgment, where the facts appear of record, to award a restitution to the party dispossessed under the judgment pending his appeal. Hall v. Wells, 54 Miss. 289, 1877 Miss. LEXIS 1 (Miss. 1877).

49. Procedure and practice.

Although trial court initially determines in forma pauperis status, Supreme Court is in unique position of deciding which inmate, if any, abuses in forma pauperis status, and thus Supreme Court will determine when such abuse is oppressive to judiciary, and by order will apprise trial court to restrict privilege if necessary. Hyde v. State, 666 So. 2d 445, 1995 Miss. LEXIS 639 (Miss. 1995).

Trial courts should advise criminal defendants of their rights concerning appeal on the record at the time of sentencing and should solicit a decision in that regard. Should a decision be made on the record to appeal, the defendant should be advised that the decision will stand unless a written statement to the contrary, signed by the defendant and the attorney, is filed with the court. Should the decision be made to waive appeal, the defendant should nevertheless be informed of the timeliness for appeal and told that the decision to waive shall stand unless the defendant gives written notice to the court and the attorney prior to the expiration of the time. Should no decision be made, the court should inform the defendant that the failure to express the desire to appeal shall be considered a waiver of the right to appeal and that such waiver will stand unless the defendant gives written notice to the court and counsel prior to the expiration of the time in which to perfect the appeal. Wright v. State, 577 So. 2d 387, 1991 Miss. LEXIS 182 (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).

A motion to stay hearing on an appeal, filed in reply to a suggestion of error, until the trial court should have an opportunity to “perfect the record” and “furnish a supplemental transcript herein” is a procedure unknown in this state. Irwin v. Vick, 203 Miss. 44, 34 So. 2d 725, 1948 Miss. LEXIS 230 (Miss. 1948).

Case may not on appeal be transformed into a different one from that in trial court. Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 1925 Miss. LEXIS 209 (Miss. 1925).

Limiting time for argument not error unless accused prejudiced; where the record showed no prejudice, the time allowed not being consumed, there was no error in limitation. McLeod v. State, 130 Miss. 83, 92 So. 828, 1922 Miss. LEXIS 199 (Miss. 1922).

50. —Pleading.

Motion to strike portions of former husband’s brief would be denied, where motion appeared to be just another in the series of actions and incidents the parties had used to harass each other at their child’s expense. Touchstone v. Touchstone, 682 So. 2d 374, 1996 Miss. LEXIS 534 (Miss. 1996).

Acceptance of payment of judgment by plaintiff must be raised in Supreme Court by special plea in bar of appeal and not motion to dismiss. Adams v. Carter, 92 Miss. 578, 46 So. 59, 1908 Miss. LEXIS 201 (Miss. 1908).

51. —Parties.

One neither necessary nor proper party to equity suit cannot intervene. Crystal Springs Bank v. New Orleans Cattle Loan Co., 132 Miss. 52, 95 So. 520, 1923 Miss. LEXIS 5 (Miss.), modified, 132 Miss. 454, 96 So. 309, 1923 Miss. LEXIS 54 (Miss. 1923).

52. —Evidence.

Although the prosecutor told a sequestered witness of the testimony of another witness before the sequestered witness gave rebuttal testimony, the admission of the witness’ rebuttal testimony did not result in sufficient prejudice to require reversal of the conviction where her rebuttal testimony was consistent with her testimony in the case-in-chief. Doby v. State, 532 So. 2d 584, 1988 Miss. LEXIS 500 (Miss. 1988).

Supreme Court has right to make use of knowledge of popular and general customs of people of state and public conditions therein. Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505, 1949 Miss. LEXIS 472 (Miss. 1949).

53. —Judgment.

Where appeal with supersede as was 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).

Supreme Court will not enter final decree on appeal when case has features of detail which make it better that final decree be worked out and entered by chancery court in conformity to opinion of supreme court. Dyer v. Russell, 204 Miss. 719, 38 So. 2d 104, 1948 Miss. LEXIS 400 (Miss. 1948).

Seventh Amendment to United States Constitution, preserving right of trial by jury, inapplicable to state courts, and does not prevent final judgment on appeal in state court contrary to verdict, where trial court should have directed verdict. Gulf & S. I. R. Co. v. Hales, 140 Miss. 829, 105 So. 458, 1925 Miss. LEXIS 313 (Miss. 1925).

Common law on subject remains as if case subsequently overruled had never been decided. Gross v. State, 135 Miss. 624, 100 So. 177, 1924 Miss. LEXIS 50 (Miss. 1924).

Recitals of jurisdictional facts in judgment are controlled by record on appeal. Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, 1917 Miss. LEXIS 247 (Miss. 1917).

Supreme Court has full jurisdiction over orders and judgments made during term until term expires. Fairley v. State, 114 Miss. 510, 75 So. 374, 1917 Miss. LEXIS 57 (Miss. 1917).

Judgment on appeal is res judicata, but not as to new case made by new pleading and new evidence. Middleton v. Davis, 105 Miss. 152, 62 So. 164, 1913 Miss. LEXIS 190 (Miss. 1913).

The Supreme Court after deciding a case and giving judgment cannot sustain a motion to correct the judgment filed at a subsequent term because of the existence of some fact neither pleaded nor proved in the court below, on the suggestion that such course is necessary to make the judgment conform to the decision. Le Blanc v. Illinois C. R. Co., 73 Miss. 463, 19 So. 211, 1895 Miss. LEXIS 153 (Miss. 1895).

The Supreme Court is without power to correct its own judgment at a subsequent term on account of any error of law or of fact, although to prevent a failure of justice it will sometimes correct a judgment at a subsequent term where the circumstances are peculiar and exceptional, as in the case of fraud on the part of the person obtaining the judgment, the failure of the judgment as entered to accord with that intended to be entered, some misconception by the court of the case made in the record, or other circumstances of like nature. Le Blanc v. Illinois C. R. Co., 73 Miss. 463, 19 So. 211, 1895 Miss. LEXIS 153 (Miss. 1895); Cotten v. McGehee, 54 Miss. 621, 1877 Miss. LEXIS 59 (Miss. 1877).

54. —Attorney fees.

On appeal by a husband from a decree in a suit for divorce directing him to pay alimony pendente lite and counsel fees to the wife the Supreme Court has the power to award the wife a reasonable solicitor’s fee for reciting the appeal. Hall v. Hall, 77 Miss. 741, 27 So. 636, 1900 Miss. LEXIS 22 (Miss. 1900).

RESEARCH REFERENCES

ALR.

Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below. 11 A.L.R.2d 317.

Sufficiency of random sampling of drug or contraband to establish jurisdictional amount required for conviction. 45 A.L.R.5th 1.

Civil actions removable from state court to federal court under 28 U.S.C.S. § 1443. 159 A.L.R. Fed. 377.

Who is “person acting under” officer of United States or any agency thereof for purposes of availability of right to remove state action to federal court under 28 U.S.C.A. § 1442(a)(1). 166 A.L.R. Fed. 297.

Am. Jur.

4 Am. Jur. 2d, Appellate Review §§ 75 et seq.

5 Am. Jur. 2d, Appellate Review §§ 552, 618.

Cross References —

Administrative Office of Courts to assist Chief Justice of Supreme with his administrative duties, see §9-21-3.

Cross References —

Appointment of special judges to serve on emergency basis, see §9-1-105.

Designation of certain retired judges as Senior Judges, see §9-1-107.

Recall of retired Supreme Court justices, see §9-3-6.

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d, Judges § 15.

CJS.

48A C.J.S., Judges §§ 61, 62.

Cross References —

Provisions common to court clerks, see §§9-1-27 et seq.

Cross References —

Provisions common to court clerks, see §§9-1-27 et seq.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 2-6.

Cross References —

Provisions common to court clerks, see §§9-1-27 et seq.

JUDICIAL DECISIONS

1. In general.

Acting as guardian of the person or estate of an habitual drunkard is not one of the ex officio duties of a clerk of the chancery court, but devolves upon him when, but not unless, he is appointed as such by a decree of that court, and therefore is not within the ex officio powers vested in a deputy chancery clerk by the statute. O'Bannon v. Henrich, 191 Miss. 815, 4 So. 2d 208, 1941 Miss. LEXIS 176 (Miss. 1941).

Deputy circuit clerk may appoint justice of peace to preside over eminent domain court. 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).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 42.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Provisions common to court clerks, see §§9-1-27 et seq.

Administrative Office of Courts to assist court clerks, see §9-21-3.

When the clerk must refuse to accept a record, see Miss. Sup. Ct., Rule 1.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 23 et seq.

CJS.

21 C.J.S., Courts §§ 337 et seq.

Cross References —

Call and order of the docket, in cases where oral argument is and is not requested, see Miss. R. App. P. 23.

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Editor’s Notes —

Section 29-5-1, as added by Laws, 1984, Chapter 488, § 7, provided, at subsection (2) therein, that the words “capitol commission” appearing in the laws of the state shall be construed to mean the bureau of capitol facilities of the office of general services. Thereafter, Laws of 1989, Chapter 544, § 24, amended Section 7-1-451 to provide that the term “Office of General Services” appearing in any law of the state shall mean the Department of Finance and Administration.

Cross References —

Archives and Records Management Law, generally, see §§25-59-1 et seq.

Requirement that consent of director of department of archives and history be obtained prior to destruction of public records, see §§25-59-21, 25-59-31.

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

OPINIONS OF THE ATTORNEY GENERAL

A board of supervisors has no power to require a chancery clerk, circuit clerk, or person holding both offices, to personally perform official duties when the duties incumbent upon a chancery clerk, a circuit clerk or the person who holds both offices, are in fact being properly and timely performed by the deputy; regardless of whether the board hires a recording clerk for the board minutes, it must still pay the chancery clerk those fees and compensation that are mandatory; there is no authority that would permit the board to require a chancery clerk to take down the proceedings of the board in long hand rather than short hand; since the compensation of the deputy clerk is by salary, not by fees, the fees that accrue will accrue to the clerk, not the deputy. Johnson, January 9, 1998, A.G. Op. #97-0808.

Editor’s Notes —

Former §9-3-28 authorized the Supreme Court to request active chancery and circuit court judges to sit temporarily as supreme court commissioners, and provided for the duties, expenses and oath of commissioners.

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Editor’s Notes —

Former §9-3-33 granted Supreme Court judges the power to grant certain appeals.

Former §9-3-35 authorized the Supreme Court to make all orders and issue all process.

JUDICIAL DECISIONS

1. In general.

2. Specific issues of fact.

1. In general.

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).

Although the Supreme Court may direct a trial judge to act as facility or agent for the Supreme Court for the purpose of developing evidence as to whether a defendant or his attorneys deliberately waived defendant’s right to object to testimony with reference to the search of his automobile, the burden is upon the Supreme Court to determine whether it is satisfied that such a waiver had or had not occurred. Mixon v. Black, 198 So. 2d 213, 1967 Miss. LEXIS 1247 (Miss. 1967).

When matters are to be presented to the Supreme Court in the form of evidence, as permitted by this section, it is better practice for appellee for file a plea in bar. Insured Sav. & Loan Asso. v. State, 242 Miss. 547, 135 So. 2d 703, 1961 Miss. LEXIS 592 (Miss. 1961).

Supreme Court will receive affidavits; and determine whether title to judgment on which appealing execution creditor relies has been transferred to third person. McInnis v. Simmons, 162 Miss. 606, 139 So. 872, 1932 Miss. LEXIS 162 (Miss. 1932).

Motion to dismiss plaintiff’s appeal because he accepted payment of the judgment pending appeal must be dismissed, the proper way of raising the question being by plea in bar, supported by proper evidence. Adams v. Carter, 92 Miss. 578, 46 So. 59, 1908 Miss. LEXIS 201 (Miss. 1908).

A plea in bar of an appeal based on the statute of limitations may be filed in and passed upon by the Supreme Court. Farmer v. Allen, 85 Miss. 672, 38 So. 38, 1904 Miss. LEXIS 181 (Miss. 1904).

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).

The Supreme Court has no jurisdiction to try a claimant’s issue for property seized under execution from it, since the court has no power to try any issue of fact not necessary to be decided for the disposition of a pending appeal. The remedy is replevin. State v. Booker, 61 Miss. 16, 1883 Miss. LEXIS 62 (Miss. 1883).

2. Specific issues of fact.

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).

This section [Code 1942 § 1960] does not apply to a case where no appeal has been perfected, for under its terms the issues of fact which the Supreme Court may try are limited to those arising out of the appeal. Windom v. State, 192 So. 2d 689, 1966 Miss. LEXIS 1263 (Miss. 1966).

On appeal of a libel action where the lower court’s findings as to malice were not clear, the Supreme Court had authority under this section [Code 1942 § 1960] and its rules to require the trial judge who heard the case on the merits and sitting without a jury to supplement his findings of fact with specific findings on the issue of malice, and as to whether the proof of malice was made to the extent and in the manner required by decisions of the federal courts. Reaves v. Foster, 191 So. 2d 423, 1966 Miss. LEXIS 1217 (Miss. 1966).

The jurisdiction of the Supreme Court under this section [Code 1942 § 1960] is limited to the trial of issues of fact which may arise out of any appeal before it and necessary to the disposition thereof, and consequently does not permit issuance by the clerk of the trial court of a writ of garnishment to collect costs incurred on appeal to the Supreme Court. State v. Keeton, 176 Miss. 590, 169 So. 760, 1936 Miss. LEXIS 143 (Miss. 1936).

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

For current set of court rules made under authority of this section and Mississippi Constitution, as well as procedures related to tracking system adopted by Supreme Court for all civil and criminal cases, see Miss. R. App. P. 1 et seq.

Provision that local rules shall be filed with Supreme Court, which shall publish and disseminate them, see Miss. R. Civ. P. 83.

JUDICIAL DECISIONS

1. Transcript of record in general.

2. —Form and contents.

3. —Agreed transcript.

4. —Transcript fee.

5. Assignment of errors.

6. Briefs.

7. Agreement of counsel.

8. Docketing and hearing of causes.

9. —Original papers — when considered.

10. —Harmless error — no reversal.

11. New trial.

12. Suggestion of error.

13. Motions.

14. Mandate, issuance or retention of.

15. Reinstatement of dismissed causes.

16. Divisions of court.

1. Transcript of record in general.

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. Supreme Court Rule 44 is adopted in order to establish a uniform procedure with reference to requests by court reporters for additional time in which to transcribe their notes. Brown v. Water Valley, 319 So. 2d 649, 1975 Miss. LEXIS 1481 (Miss. 1975).

When return day has passed without clerk of trial court filing record, failure of appellant to apply for writ of certiorari is negligent. Yazoo & M. V. R. Co. v. McGraw, 118 Miss. 850, 80 So. 331, 1918 Miss. LEXIS 137 (Miss. 1918).

Recitals of jurisdictional fact in judgment are controlled by record on appeal. Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, 1917 Miss. LEXIS 247 (Miss. 1917).

2. —Form and contents.

Use of loose-leaf binders was not a compliance with Supreme Court rule requiring transcript of record to be bound in “non-flexible pasteboard covers, with marbled sides.” Davis v. Rosenthal Plywood Sales Co., 207 Miss. 574, 42 So. 2d 750, 1949 Miss. LEXIS 368 (Miss. 1949).

Though the trial judge may require court reporter to take all voir dire examinations, it is sufficient that reporter be required to take questions and answers to which objections are made in course of voir dire. Phenizee v. State, 180 Miss. 746, 178 So. 579, 1938 Miss. LEXIS 39 (Miss. 1938).

Where record shows questions but not what answers of witness would have been, exclusion of such testimony cannot be reviewed. New Orleans & N. E. R. Co. v. Scarlet, 115 Miss. 285, 76 So. 265, 1917 Miss. LEXIS 210 (Miss. 1917), rev'd, 249 U.S. 528, 39 S. Ct. 369, 63 L. Ed. 752, 1919 U.S. LEXIS 2071 (U.S. 1919).

Under Supreme Court rule 2 (59 So VII) clerk making up transcript need not include copies of his endorsement of filing on papers and records deposited with him. Mississippi C. R. Co. v. Chambers, 103 Miss. 400, 60 So. 562, 1912 Miss. LEXIS 184 (Miss. 1912), overruled, Richmond v. Enochs, 109 Miss. 14, 67 So. 649, 1915 Miss. LEXIS 108 (Miss. 1915).

Where record not double spaced, case will be remanded to docket for writ of certiorari to clerk of lower court to send up proper transcript. Howell v. State, 103 Miss. 520, 60 So. 135, 1912 Miss. LEXIS 155 (Miss. 1912).

3. —Agreed transcript.

Court rule held not to authorize counsel to make whole or any part of original record of trial court record on appeal. Austin v. Von Seutter, 170 Miss. 467, 151 So. 563, 1934 Miss. LEXIS 87 (Miss. 1934).

4. —Transcript fee.

Motion to retax costs was dismissed where certificate alleging that costs paid were excessive was made by mother-in-law of attorney who filed motion and who was to receive as compensation one-half of amount collected, since mother-in-law was not “disinterested person” within court rule requiring certificate to be made by disinterested person (Supreme Court Rule 21A). Deer Island Fish & Oyster Co. v. First Nat'l Bank, 172 Miss. 284, 159 So. 656, 1935 Miss. LEXIS 129 (Miss. 1935).

Lower court clerk having acted on agreement of counsel that original exhibits be certified to Supreme Court in lieu of transcript thereof, after he had made copies of exhibits, though not required to act on such agreement, clerk was not entitled to fees he would have earned by filing transcript. Austin v. Von Seutter, 170 Miss. 467, 151 So. 563, 1934 Miss. LEXIS 87 (Miss. 1934).

Motion to retax costs in Supreme Court on account of incorrect number of words in instrument, or transcript thereof, or transcript of entire record, must be accompanied by written statement of true number of words with certificate of its correctness by competent disinterested person. Peck & Hills Furniture Co. v. Greer, 166 Miss. 249, 148 So. 387 (Miss. 1933).

Clerk failing to incorporate bill of lading in evidence without excuse not allowed fees for making transcript. Jordan v. Mississippi C. R. Co., 107 Miss. 323, 65 So. 276, 1914 Miss. LEXIS 85 (Miss. 1914).

5. Assignment of errors.

On appeal from a conviction for the sale of LSD, the wrongful refusal of the state to disclose the identity of the confidential informant, although not directly assigned as error, was apparent from the briefs and the record and therefore noticeable as plain error under Rule 6. Hemphill v. State, 313 So. 2d 25, 1975 Miss. LEXIS 1665 (Miss. 1975).

The Supreme Court on its own motion will raise question of absence of necessary parties. Robbins v. Berry, 209 Miss. 422, 47 So. 2d 846, 1950 Miss. LEXIS 407 (Miss. 1950).

Assignments of error not argued in appellants’ brief are waived. Vail v. Jackson, 206 Miss. 299, 40 So. 2d 151, 41 So. 2d 357 (1949); McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

Supreme Court must accept version of incident given by appellee in civil case and accepted by jury when on appeal appellants do not assign as error that verdict of jury was against weight of evidence. Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So. 2d 654, 1949 Miss. LEXIS 400 (Miss. 1949).

Case will not be reversed for error unless such error is prejudicial to defendant and is embraced in an assignment of error. McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

In suit for partition of real property, Supreme Court will not pass upon question of size of complainant’s proportionate interest in the property when lower court’s failure to adjudicate question is not assigned as error, under rule 6. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

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 nor motion for new trial made assigning as ground giving of the 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).

Error in admitting evidence may be presented, though question was not included in motion for new trial. Deposit Guaranty Bank & Trust Co. v. Silver Saver Stores, Inc., 166 Miss. 882, 148 So. 367, 1933 Miss. LEXIS 387 (Miss. 1933).

Error in decree not complained of on appeal therefrom cannot be considered on motion to correct reviewing court’s judgment. Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, 1933 Miss. LEXIS 81 (Miss. 1933), aff'd, 292 U.S. 393, 54 S. Ct. 743, 78 L. Ed. 1323, 1934 U.S. LEXIS 718 (U.S. 1934).

Alleged error in calculation and statement in court below of amount due by appellants could not be rectified on motion to correct reviewing court’s judgment where not separately and particularly assigned. Nickey v. State, 167 Miss. 650, 145 So. 630, 146 So. 859, 147 So. 324, 1933 Miss. LEXIS 81 (Miss. 1933), aff'd, 292 U.S. 393, 54 S. Ct. 743, 78 L. Ed. 1323, 1934 U.S. LEXIS 718 (U.S. 1934).

Under rule 6, the test of Supreme Court’s right to review ruling of trial court is whether it could be assigned for error. 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).

Where controversy appears to be between appellants and a county and appellees are not interested, cause will be retained to permit appellants to file assignments of error raising point and serving copy on attorney-general, and time will be given to file briefs and replies. McCaleb v. McCaleb, 110 Miss. 486, 70 So. 563, 1915 Miss. LEXIS 62 (Miss. 1915), modified, 113 Miss. 337, 74 So. 275, 1917 Miss. LEXIS 106 (Miss. 1917).

6. Briefs.

Absent a showing by the appellee that the abstract or abridgment prepared by the appellant is defective or insufficient, the appellee is not permitted to file a counter abstract or abridgment, as such duplication would defeat the purposes for which Rule 41 was adopted. Litton Systems, Inc. v. Burrows, 321 So. 2d 297, 1975 Miss. LEXIS 1525 (Miss. 1975).

Abstract of record which referred to certain pages of the voir dire examination and instructions submitted to the trial court, and to three volumes of the record in their entirety, did not comply with Rule 41. Stevenson v. State, 312 So. 2d 10, 1975 Miss. LEXIS 1636 (Miss. 1975).

Where the appendix to the appellant’s brief was clearly an attempt to extend the 75 page limitation placed on appellants’ briefs, the appendix was removed from the file and returned to the appellant. Stevenson v. State, 312 So. 2d 10, 1975 Miss. LEXIS 1636 (Miss. 1975).

McGee v. State, 40 So. 2d 160 (Miss.), cert. denied, 338 U.S. 805, 70 S. Ct. 77, 94 L. Ed. 487, 1949 U.S. LEXIS 1886 (U.S. 1949).

When counsel for appellant complies with rule 7, paragraph 2, of Supreme Court, requesting that a concise statement of the case precede the argument of counsel, and counsel for appellee neither challenges his statement of facts of the case nor sets forth in his brief a different statement of facts, appellee has no just cause of complaint if the Supreme Court accepts the appellant’s statement of facts as being true. Frederic v. Board of Sup'rs, 197 Miss. 293, 20 So. 2d 92, 1944 Miss. LEXIS 300 (Miss. 1944).

Briefs should be confined to facts and law and should not contain opinions counsel may entertain of each other. Felder v. Acme Mills, 112 Miss. 322, 73 So. 52, 1916 Miss. LEXIS 113 (Miss. 1916).

Party excepting to questions of fact in administratix’s account should set forth each exception in his brief with reasons why it sould be sustained and citation to pages of record containing evidence as to items excepted to. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

Supreme Court Rule 7 par. 3 as to double spacing applies both to original matter and quotations, and where single spaced brief filed it will be remanded with leave to file new brief within one week. Bank of Roxie v. Lampton, 103 Miss. 398, 60 So. 561, 1912 Miss. LEXIS 183 (Miss. 1912).

Case remanded to docket with leave to file new brief where appellant’s brief is partly in black and partly in red ink in violation of rule 7 par. City of Water Valley v. State, 103 Miss. 314, 60 So. 325, 1912 Miss. LEXIS 175 (Miss. 1912).

Case remanded to docket with leave to file another brief where attorney has his name, profession, and address printed in large letters in middle of each page of brief contrary to rule 7 par. 3. Grace v. Floyd, 103 Miss. 201, 60 So. 135, 1912 Miss. LEXIS 154 (Miss. 1912).

7. Agreement of counsel.

Disputed oral agreement of counsel not regarded as excuse for delay in not filing appeal within time by law. Rule 22, 72 So. VIII. Williams v. Meredian L. & R. Co., 114 Miss. 73, 75 So. 59, 1917 Miss. LEXIS 26 (Miss. 1917).

8. Docketing and hearing of causes.

Appeal from judgment of circuit court upholding reasonableness of ordinance extending city limits, where appeal bond was filed by one objector on the 22nd of March and the other on the 24th of March, is returnable on the 1st day of May. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Cause is on docket for trial the Monday first after expiration of 20 days from taking appeal. Rule of court fixing time of hearing criminal docket is within power of court and consistent with law, being necessary to enable court to properly handle the business before it. Bennett v. State, 99 Miss. 644, 55 So. 482, 1911 Miss. LEXIS 235 (Miss. 1911).

All criminal cases on docket ready for hearing on day of term fixed will be tried. Other criminal cases placed on docket after that time will be continued. Bennett v. State, 99 Miss. 644, 55 So. 482, 1911 Miss. LEXIS 235 (Miss. 1911).

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).

9. —Original papers — when considered.

Where there appeared to be no reason why original exhibits sent to Supreme Court by order of trial court could not have been copied in record, such exhibits were stricken from record and returned to clerk of lower court. Spitchley v. Covington, 181 Miss. 678, 177 So. 31, 1937 Miss. LEXIS 133 (Miss. 1937).

Original exhibits should be sent to Supreme Court only when an inspection of them instead of copies thereof would aid court in determining matter before it. Spitchley v. Covington, 181 Miss. 678, 177 So. 31, 1937 Miss. LEXIS 133 (Miss. 1937).

The court rule relating to sending of original papers to Supreme Court does not authorize trial court generally to send up all documentary exhibits to Supreme Court. Spitchley v. Covington, 181 Miss. 678, 177 So. 31, 1937 Miss. LEXIS 133 (Miss. 1937).

An original paper introduced as evidence on trial could be made part of record on appeal only pursuant to court rule providing for judge or chancellor making necessary order in proper case. Sovereign Camp, W. O. W., v. Duncan, 175 Miss. 724, 165 So. 546, 1936 Miss. LEXIS 2 (Miss. 1936).

An original paper introduced as evidence on trial could be made part of record on appeal only pursuant to court rule providing for judge or chancellor making necessary order in proper case, and such relief could not be granted on motion for certiorari to bring up such paper and have it made part of record on appeal. Sovereign Camp, W. O. W., v. Duncan, 175 Miss. 724, 165 So. 546, 1936 Miss. LEXIS 2 (Miss. 1936).

Lower court clerk having acted on agreement of counsel that original exhibits be certified to Supreme Court in lieu of transcript thereof, after he had made copies of exhibits, though not required to act on such agreement, clerk was not entitled to fees he would have earned by filing transcript. Austin v. Von Seutter, 170 Miss. 467, 151 So. 563, 1934 Miss. LEXIS 87 (Miss. 1934).

Original of papers constituting part of record in trial court may be sent up to Supreme Court on appeal only when Supreme Court, trial judge, or chancellor makes order therefor. Austin v. Von Seutter, 170 Miss. 467, 151 So. 563, 1934 Miss. LEXIS 87 (Miss. 1934).

The order and recitals thereof in the judge’s order sending original papers up for inspection under Supreme Court rule 28 are not considered as evidence in the record, and the court will limit its consideration to the instructions and verdict without reference to recitals in the order. Gulf Coast Stevedoring Co. v. Gibbs, 124 Miss. 188, 86 So. 582, 1920 Miss. LEXIS 484 (Miss. 1920).

10. —Harmless error — no reversal.

Under Rule 11 of Supreme Court, no judgment shall be reversed on ground of misdirection to jury, or improper admission or exclusion of evidence, or for error as to matter of pleading or procedure, unless it shall affirmatively appear from whole record that such judgment has resulted in miscarriage of justice. Summerall v. State, 206 Miss. 878, 41 So. 2d 51, 1949 Miss. LEXIS 310 (Miss. 1949).

Judgment of conviction of grand larceny will not be reversed on ground of misdirection to jury or other errors which are harmless in face of testimony in record and when judgment of court below is not miscarriage of justice. Countryman v. State, 204 Miss. 117, 37 So. 2d 21, 1948 Miss. LEXIS 349 (Miss. 1948).

Supreme Court will not reverse, unless record discloses that trial court erred in making ruling complained of, and that appellant was materially prejudiced thereby. Lewis v. State, 173 Miss. 821, 163 So. 387, 1935 Miss. LEXIS 252 (Miss. 1935).

Where insured’s demurrer to special plea was erroneously sustained, question whether insurer had waived defense relied on must be determined by trial court and not by Supreme Court. New York Life Ins. Co. v. Gresham, 170 Miss. 211, 154 So. 547, 1934 Miss. LEXIS 125 (Miss. 1934).

Judgment not reversed for erroneous instruction unless it affirmatively appears that complaining party is prejudiced. Smith v. Shelton, 132 Miss. 118, 95 So. 835, 1923 Miss. LEXIS 25 (Miss. 1923).

Erroneous instruction held harmless. Cecil Lumber Co. v. McLeod, 122 Miss. 767, 85 So. 78, 1920 Miss. LEXIS 475 (Miss. 1920).

Where accused voluntarily absented himself during examination of two jurors one of whom was accepted, error, if any, in proceeding with trial was harmless. Thomas v. State, 117 Miss. 532, 78 So. 147, 1918 Miss. LEXIS 170 (Miss. 1918).

11. New trial.

On appeal of a libel action where the lower court’s findings as to malice were not clear, the Supreme Court had authority under this section [Code 1942 § 1961] and its rules to require the trial judge who heard the case on the merits and sitting without a jury to supplement his findings of fact with specific findings on the issue of malice, and as to whether the proof of malice was made to the extent and in the manner required by decisions of the federal courts. Reaves v. Foster, 191 So. 2d 423, 1966 Miss. LEXIS 1217 (Miss. 1966).

Although Supreme Court’s order is one of reversal and remand, its opinion is to be regarded as law of case on any similar facts or issues upon rehearing in trial court. State Highway Com. v. Coahoma County, 203 Miss. 629, 32 So. 2d 555, 1947 Miss. LEXIS 367 (Miss. 1947).

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).

The purpose of rule 6 of the rules of the Supreme Court is to dispense with the necessity for a motion for new trial when the error assigned is based upon any ruling made in the trial, but in the absence of error in any of the rulings of the trial court, the rule in question does not dispense with the necessity for a motion for a new trial when the assignment of error is based solely upon objection to the amount of the verdict. Coccora v. Vicksburg Light & Traction Co., 126 Miss. 713, 89 So. 257, 1921 Miss. LEXIS 68 (Miss. 1921).

Where cause reversed solely on measure of damages but remanded generally, motion to correct judgment so as to remand for trial as to damages only will be sustained. Yazoo & M. V. R. Co. v. Boon, 112 Miss. 493, 73 So. 563, 1916 Miss. LEXIS 134 (Miss. 1916).

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).

12. Suggestion of error.

Where on the original submission to a quorum of the judges elaborate briefs had been submitted by both sides, and on suggestion of error reply briefs were requested and filed, and the matter was considered en banc, the Supreme Court would not grant authority to file a second suggestion of error. Carter v. Berry, 243 Miss. 378, 142 So. 2d 13 (Miss. 1962).

On suggestion of error in affirmance of conviction for murder, crucial test is not whether original opinion of supreme court may have contained erroneous statement or conclusion of law, but whether such error was committed in trial court. Dickins v. State, 208 Miss. 69, 43 So. 2d 366, 1949 Miss. LEXIS 409 (Miss. 1949).

Supreme Court is compelled to limit its examination to record before it on suggestion of error in affirmance of judgment of murder conviction and cannot consider assurances of innocence of defendant which derive not from record but from independent investigation of counsel. McAfee v. State, 41 So. 2d 43 (Miss. 1949).

Second suggestion of errors filed after expiration of time for filing suggestion of errors, without permission, and in violation of Rule 14 of Supreme Court, is no part of record. Ball v. State, 203 Miss. 521, 36 So. 2d 159, 1948 Miss. LEXIS 300 (Miss. 1948).

A suggestion of error under rule 14 is to all intents and purposes a request for rehearing, and may be filed without an order of the court if done within the original fifteen days allowed, or within the extended time granted by order of the court therefor; and in such event it suspends the judgment and also the effect and operation of any mandate issued thereon until the suggestion of error shall have been disposed of. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

The proper construction of the statute relating to certifying final judgments to the court below (Code 1942 § 1990) requires the clerk of the Supreme Court to certify a final judgment of 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).

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).

Year within which municipal bonds might be issued after favorable determination of litigation did not begin to run until issuance of mandate fifteen days after Supreme Court’s decision, which was time allowed for filing of suggestion of error. Love v. Mayor & Board of Aldermen, 166 Miss. 322, 148 So. 382, 1933 Miss. LEXIS 389 (Miss. 1933).

Suggestion of error not filed until long after time for filing thereof had expired should be dismissed. Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 1932 Miss. LEXIS 306 (Miss. 1932).

Motion to change award of costs must be filed in time allowed for filing suggestion of error. Bacot v. Holloway, 140 Miss. 120, 104 So. 696, 1925 Miss. LEXIS 240 (Miss. 1925).

Motion to correct judgment of remand filed after adjournment and more than 15 days after rendition, not predicated on mistake nor grounds contained in Code 1906 § 1016, is a suggestion of error and must be overruled as not filed within time fixed. Rule 14, 72 So. VIII. McCrory v. Donald, 118 Miss. 596, 79 So. 801, 1918 Miss. LEXIS 101 (Miss. 1918).

13. Motions.

Supreme Court rule 16 is amended to require that all motions to strike the court reporter’s notes for failure to give notice to court reporter as required by the provisions of Code 1972 §9-13-33 [Repealed] shall be filed not later than 10 days after the record in the cause is filed in Supreme Court. Sossaman v. State, 308 So. 2d 222, 1975 Miss. LEXIS 1851 (Miss. 1975).

Supreme Court may overrule motion to dismiss appeal when record has not been filed at time motion is made but is filed few days later and prior to order on motion without impairment of general provisions of Code 1942, § 1966, or Rules of Court, where circumstances are not ordinary and advancement of justice requires that court relax its rules. Van Norman v. Van Norman, 45 So. 2d 847 (Miss. 1950).

Motion to expunge parts of record dismissed where no brief filed or counsel appeared as required by rule 16 (59 So IX) when motions called for hearing. Goehns v. Wallace, 108 Miss. 489, 66 So. 978, 1914 Miss. LEXIS 226 (Miss. 1914).

Compliance with rule 16 as to notice to opposite party may be shown by proper certificate signed; unsigned memorandum, not sufficient and motion to continue remanded to docket on failure to comply with rule. Germain v. Harwell, 103 Miss. 521, 60 So. 212, 1912 Miss. LEXIS 164 (Miss. 1912).

14. Mandate, issuance or retention of.

Statute permitting suit in forma pauperis applies only to a court of original jurisdiction and not to courts of appeal; accordingly it does not authorize 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).

Failure of the Supreme Court to recall a mandate issued to and received by the court below after reversal of a manslaughter prosecution by a division of the Supreme Court, pending a hearing on a suggestion of error, prior to judgment of affirmance of the conviction or before the expiration of the term, did not deprive the Supreme Court of power to recall the same, where the court entered an order on its minutes continuing all matters undisposed of to the next succeeding term; and the issuance by the clerk of a mandate under the judgment of affirmance in lieu of the former mandate would be effective ipso facto to revoke and recall the original mandate. White v. State, 190 Miss. 589, 195 So. 479, 1940 Miss. LEXIS 173 (Miss. 1940).

Where costs on appeal, though adjudged against appellee, were paid by appellant after execution against appellee was returned unsatisfied, appellant held not entitled to dismissal of cause or to order directing clerk to refuse payment of costs if tendered by appellee and to decline to issue mandate on ground of appellee’s laches in delaying to pay costs; applicability of doctrine of laches being for determination of court below on return of cause. Dubois v. Thomas, 173 Miss. 697, 161 So. 868, 1935 Miss. LEXIS 239 (Miss. 1935).

15. Reinstatement of dismissed causes.

Felony cases dismissed because appellant has escaped and remains a fugitive when the case is called for hearing on the merits may be reinstated only under the provisions of Supreme Court Rule 18. Miller v. State, 311 So. 2d 348, 1975 Miss. LEXIS 1607 (Miss. 1975).

Rule 18, relating to reinstatement of a cause which has been dismissed, has been construed to require a statement, not merely that there is merit in the appeal, but the substance of the ground for which reversal is asked must be set forth, with sufficient facts to show the pertinency of such ground for reversal. Warren v. State, 165 Miss. 783, 144 So. 698, 1932 Miss. LEXIS 293 (Miss. 1932), overruled, Brown v. Water Valley, 319 So. 2d 649, 1975 Miss. LEXIS 1481 (Miss. 1975).

16. Divisions of court.

Supreme Court rule authorizing the court to sit in three divisions of three judges each, with each division having full power to hear and to judge all cases assigned to it, was not unconstitutional. In Mississippi Constitution § 149A, authorizing two divisions of three judges each, “two” was surplusage as there were only six judges on the court at the time the section was adopted. Russell v. State, 312 So. 2d 422, 1975 Miss. LEXIS 1641 (Miss. 1975).

Under constitutional provision authorizing Supreme Court to sit in two divisions under such rules and regulations as court might adopt, decision of division of Supreme Court becomes authoritative and binding as to cases thus determined and decided by division of court. Jefferson Standard Life Ins. Co. v. Ham, 178 Miss. 838, 173 So. 672, 1937 Miss. LEXIS 236 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Dismissal of action for failure or refusal of plaintiff to obey court order. 4 A.L.R.2d 348.

Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories. 56 A.L.R.3d 1109.

Dismissal of state court action for failure or refusal of plaintiff to obey request or order for production of documents or other objects. 27 A.L.R.4th 61.

Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral examination. 32 A.L.R.4th 212.

Dismissal of state court action for plaintiff’s failure or refusal to obey court order relating to pleadings or parties. 3 A.L.R.5th 237.

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 48- 52.

CJS.

21 C.J.S., Courts §§ 171-174.

Editor’s Notes —

Former §9-3-40 provided for the approval of local court rules by the Supreme Court.

Former §9-3-41 specified which cases required that opinions be in writing.

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 wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration.”

Amendment Notes —

The 2002 amendment rewrote the section.

Editor’s Notes —

Former §9-3-47 related to the appointment of magistrates from Supreme Court districts to assist the Supreme Court.

Former §9-3-49 related to the duty of the Supreme Court Clerk to maintain statistics concerning former §9-3-47.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, 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, 1993, ch. 518.

Cross References —

Power of the court to prescribe rules for the development of records control schedules for the courts of the state, see §25-59-17.

RESEARCH REFERENCES

ALR.

Propriety of exclusion of press or other media representatives from civil trial. 39 A.L.R.5th 103.

Law Reviews.

1981 Mississippi Supreme Court Review: Civil Procedure. 52 Miss. L. J. 399, June 1982.

The Limits of the Mississippi Supreme Court’s Rule-Making Authority. 60 Miss. L. J. 359, Fall 1990.

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

Recent Trends in Mississippi Judicial Rule Making: Court Power, Judicial Recusals, and Expert Testimony, 23 Miss. C. L. Rev. 1, Fall, 2003.

RESEARCH REFERENCES

Law Reviews.

The Limits of the Mississippi Supreme Court’s Rule-Making Authority. 60 Miss. L. J. 359, Fall 1990.

Editor’s Notes —

Former Section 9-3-70 related to review of proposed new rules and rule changes by the Advisory Committee on Rules.

Editor’s Notes —

Former §9-3-71 was entitled: Submission of proposed rules to legislature; when effective; legislative disapproval; rules not submitted of no effect.

Former §9-3-73 was entitled: Conflicts of proposed rules and Code of 1972 to be specifically noted.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Laws, 1994, ch. 564, § 104, provides as follows:

“SECTION 104. Section 100 of this act shall take effect and be in force from and after January 1, 1995, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended whichever is later and the remainder of this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On September 6, 1994, 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, 1994, ch. 564, § 97.

On July 30, 2001, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 2001, ch. 574, § 1.

Amendment Notes —

The 2001 amendment substituted “Court of Appeals District” for “congressional district” in (2).

Cross References —

Election of judges of Court of Appeals to be as prescribed in this chapter, see §23-15-994.

For rules governing practice and procedures in appeals to the Court of Appeals of the State of Mississippi, see Miss. R. App. P. 1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Residency requirement.

1. In general.

Sections 9-4-1 through 9-4-17, which establish the Court of Appeals of the State of Mississippi, are constitutional. Marshall v. State, 662 So. 2d 566, 1995 Miss. LEXIS 492 (Miss. 1995).

2. Residency requirement.

As a candidate for judge of the Mississippi Court of Appeals has to reside within the district for the office she seeks, and as appellee did not meet her burden to prove that she met the residency requirement, the trial court erred in finding that she was a qualified candidate for the position. Bryant v. Westbrooks, 99 So.3d 128, 2012 Miss. LEXIS 462 (Miss. 2012).

Candidate for the office of Court of Appeals of the State of Mississippi must reside within the district for the office she seeks. Bryant v. Westbrooks, 99 So.3d 128, 2012 Miss. LEXIS 462 (Miss. 2012).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 8- 11.

Law Reviews.

Southwick, The Mississippi Court of Appeals: History, Procedures, and First Year’s Jurisprudence. 65 Miss. L. J. 593, Spring 1996.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Cross References —

Power of court to punish for contempt, see §9-1-17.

JUDICIAL DECISIONS

1. In general.

It is within the authority of the Court of Appeals, upon proper referral from the Supreme Court, to grant a motion for a discretionary interlocutory appeal. McGriggs v. Montgomery, 710 So. 2d 886, 1998 Miss. App. LEXIS 192 (Miss. Ct. App. 1998).

There is no rule, statute, or constitutional provision which would limit the state’s right to seek certiorari review of a Court of Appeals decision which reverses a criminal conviction and remands for a new trial. Cohen v. State, 732 So. 2d 867, 1998 Miss. LEXIS 623 (Miss. 1998).

While jurisdiction of Court of Appeals is limited solely to those cases assigned to it by Supreme Court, once such an assignment is made, that court considers and disposes of each case not by way of preliminary review but as fully empowered appellate court; except as to those cases which by statute must be retained by Supreme Court, no litigant has right to further review by certiorari. Harris v. State, 704 So. 2d 1286, 1997 Miss. LEXIS 47 (Miss.), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed. 2d 47, 1997 U.S. LEXIS 4857 (U.S. 1997).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d, Courts §§ 22, 23, 82.

Law Reviews.

Southwick, The Mississippi Court of Appeals: History, Procedures, and First Year’s Jurisprudence. 65 Miss. L. J. 593, Spring 1996.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Laws, 1994, ch. 564, § 104, provides as follows:

“SECTION 104. Section 100 of this act shall take effect and be in force from and after January 1, 1995, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended whichever is later and the remainder of this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On September 6, 1994, 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, 1994, ch. 564, § 98.

On July 30, 2001, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 2001, ch. 574, § 2.

Amendment Notes —

The 2001 amendment added the proviso in the second sentence of (1); deleted “congressional” following “five (5)” in (2)(a); deleted “congressional” following “section in the” in (2)(c); and added (5).

JUDICIAL DECISIONS

1. Residency requirement.

As a candidate for judge of the Mississippi Court of Appeals has to reside within the district for the office she seeks, and as appellee did not meet her burden to prove that she met the residency requirement, the trial court erred in finding that she was a qualified candidate for the position. Bryant v. Westbrooks, 99 So.3d 128, 2012 Miss. LEXIS 462 (Miss. 2012).

Candidate for the office of Court of Appeals of the State of Mississippi must reside within the district for the office she seeks. Bryant v. Westbrooks, 99 So.3d 128, 2012 Miss. LEXIS 462 (Miss. 2012).

RESEARCH REFERENCES

ALR.

Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor. 51 A.L.R.5th 747.

Editor’s Notes —

Laws of 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws of 1993, ch. 518.

Amendment Notes —

The 2007 amendment added (5).

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Editor’s Notes —

Laws of 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws of 1993, ch. 518.

Editor’s Notes —

Laws of 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Laws of 1999, ch. 532, § 4 provides:

“SECTION 4. This act shall take effect and be in force from and after July 1, 1999, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever date is later.”

On July 6, 1999, 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, 1999, ch. 532, § 2.

Amendment Notes —

The 2007 amendment, in (2), inserted “the opinion editor,” and made a minor stylistic change.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Laws, 1994, ch. 564, § 104, provides as follows:

“SECTION 104. Section 100 of this act shall take effect and be in force from and after January 1, 1995, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended whichever is later and the remainder of this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On September 6, 1994, 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, 1994, ch. 564, § 99.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“SECTION 45. Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the enactment of this section by Laws, 1993, ch. 518.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 1.

Laws 2002, ch. 713 (Senate Concurrent Resolution No. 543), provides in pertinent part:

“BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI, That the following amendment to the Mississippi Constitution of 1890 is proposed to the qualified electors of the state:

“Amend Section 153, Mississippi Constitution of 1890, to read as follows:

“‘Section 153. The judges of the circuit and chancery courts shall be elected by the people in a manner and at a time to be provided by the Legislature. The judges elected for a term of office beginning from and after January 1, 2003, shall hold their office for a term of six (6) years.’

“BE IT FURTHER RESOLVED, That this proposed amendment shall be submitted by the Secretary of State to the qualified electors at an election to be held on the first Tuesday after the first Monday of November 2002, as provided by Section 273 of the Constitution and by general law.

“BE IT FURTHER RESOLVED, That the explanation of this proposed amendment for the ballot shall read as follows: ‘This proposed constitutional amendment increases the terms of office of circuit and chancery court judges from four to six years beginning January 1, 2003.’

“BE IT FURTHER RESOLVED, That the Attorney General of the State of Mississippi shall submit this resolution, immediately upon adoption by the Legislature, to the Attorney General of the United States or to the United States District Court for the District of Columbia, in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.”

This section was set out to correct an error in the 2014 Replacement Volume. The version of the section that was to become effective upon effectuation under Section 5 of the Voting Rights Act of 1965, as amended and extended, provided a proposed amendment to Section 153 of the Mississippi Constitution (by Chapter 713, Laws of 2002) was ratified by the electorate, was erroneously set out in the bound volume. The United States Attorney General interposed no objection to the amendment of this section by Chapter 356, Laws of 2002, but the constitutional amendment was defeated by the electorate, and the amendment by Chapter 356, Laws of 2002, never became law. The section as set out above is the section as it appeared prior to the 2002 amendment.

Laws of 2015, ch. 476, § 63, provides in part:

“SECTION 63. (1) The Standing Joint Legislative Committee on Reapportionment is directed to provide the counties census block equivalency files and maps necessary to assist the counties in identifying the boundaries of any subdistricts within a chancery or circuit court district.

“(2)(a) The Split Precinct Block List developed in conjunction with House Bill No. 703, 2015 Regular Session [Chapter 476, Laws of 2015], that details the portions of the partial or split precincts that are contained within a judicial subdistrict by census block number as that list is utilized to detail partial or split precincts for judicial subdistricts in this act is hereby incorporated into and shall be construed to be an integral part of this act. A partial or split precinct contained in this act is identified by an asterisk (*) following its designation within any judicial subdistrict. The Standing Joint Legislative Committee on Reapportionment shall file the Split Precinct Block List with the Secretary of State.

“(3)(a) This act shall be liberally construed to effectuate the purposes hereof and to redistrict the trial courts of this state in compliance with constitutional requirements.

“(b) It is intended that this act and the districts and subdistricts described herein completely encompass all the area within the state and all the voters in this state. It is also intended that no district shall include any of the area included within the description of any other district, and that no subdistrict shall include any of the area included within the description of any other subdistrict.

“(c)(i) If the districts or subdistricts described in this act do not carry out the purposes hereof because of: omissions; duplication; overlapping areas; erroneous nomenclature; lack of adequate maps or descriptions of political subdivisions, wards or other divisions thereof, or of their boundary lines; then the Secretary of State, at the joint request of the Lieutenant Governor and the Speaker of the House, by order, shall correct any omissions, overlaps, erroneous nomenclature or other defects in the description of the districts and subdistricts so as to accomplish the purposes and objectives of this act.

“(ii) In promulgating any order under this subsection (3), the Secretary of State, in addition to insuring that all areas of the state are completely and accurately encompassed in the districts and subdistricts, shall be guided by the following standards:

“1. Gaps in the description of any district or subdistrict shall be completed in a manner that results in a total description of the district or subdistrict that is consonant with the description of adjacent districts or subdistricts and results in complete contiguity of districts and subdistricts;

“2. In any allocation of area or correction of descriptions made pursuant to this subsection, the Secretary of State shall, consistent with the foregoing standards, preserve the contiguity and compactness of districts and subdistricts and avoid the unnecessary division of political subdivisions.

“(d) A copy of any order issued under this subsection shall be filed by the Secretary of State in his own office and in the offices of the affected commissioners of election and registrars. The Secretary of State may adopt reasonable rules regulating the procedure for applications for orders under this act and the manner of serving and filing any notice or copy of orders. Upon the filing of an order, the description of any affected district or subdistrict shall be deemed to have been corrected to the full extent as if the correction had been contained in the original description set forth in this act.

“(e) The redistricting contained in this act supersedes any prior redistricting.”

Laws of 2015, ch. 476, § 63, was enacted with a subdivision (2)(a) but no (2)(b).

Chapter 476, Laws of 2015 amended a number of sections in Chapters 5 and 7 of Title 9. For a complete list of Code sections affected by Chapter 476, Laws of 2015, see Table B, Allocation of Acts, in the Statutory Tables Volume.

Amendment Notes —

The 2002 amendment added “provided, however, that the terms of all chancellors elected at the regular election in November 2002 shall begin on the first day of January 2003, and their terms of office shall continue for six (6) years” at the end of the third sentence.

Cross References —

Judge not to sit when interested or related, see §9-1-9.

General provisions common to courts, see §§11-1-1 et seq.

Civil practice and procedure provisions common to courts, see §11-1-1 et seq.

Civil practice and procedure generally in chancery courts, see §11-5-1 et seq.

Provisions for filling vacancies in the office of chancellor, see §23-15-849.

For rules governing practice and procedure in chancery courts, see Miss. Uniform Chancery Court Rules 1.01 et seq.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application.

1. Validity.

This section is constitutional, although the Const. 1890 § 158, while authorizing the legislature to provide for the interchange of circuit judges, contains no similar provision respecting chancellors. First Nat'l Bank v. Abe Block & Co., 82 Miss. 197, 33 So. 849, 1903 Miss. LEXIS 115 (Miss. 1903).

2. Construction and application.

State judicial elections come within coverage of “results test” provisions of § 2 of Voting Rights Act of 1965 (42 USCS § 1973), as amended in 1982; if term “representatives” limited coverage with respect to judicial elections, limitation would exclude all claims involving judicial elections; better reading of term describes winners of representative, popular elections. Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L. Ed. 2d 348, 1991 U.S. LEXIS 3627 (U.S. 1991).

Chancellor is not disqualified when not related to parties or financially interested. Walker v. Walker, 140 Miss. 340, 105 So. 753, 1925 Miss. LEXIS 267 (Miss. 1925), overruled, Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 1943 Miss. LEXIS 75 (Miss. 1943).

Chancellor has no authority in habeas corpus proceedings to admit person convicted of felony to bail pending appeal. Leggett v. Vannison, 133 Miss. 22, 96 So. 518, 1923 Miss. LEXIS 106 (Miss. 1923).

RESEARCH REFERENCES

ALR.

Power of successor judge taking office during termtime to vacate, etc., judgment entered by his predecessor. 11 A.L.R.2d 1117.

Power of court to impose standard of personal appearance or attire. 73 A.L.R.3d 353.

Law Reviews.

Case, In search of an independent judiciary: alternatives to judicial elections in Mississippi. 13 Miss. C. L. Rev. 1, Fall, 1992.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 2.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment, in (1), substituted “composed of the counties” for “comprised of the counties” in the first sentence, and deleted “From and after January 1, 1995, the dates upon which” from the beginning of the second sentence; substituted “all Mississippi Bar members” for “all members of the Mississippi Bar” in the next-to-last sentence of (2); and made minor stylistic changes throughout.

Cross References —

Division of state into chancery court districts, see Miss. Const. Art. 6, § 152.

Constitutional authority for electing chancellor, see Miss. Const. Art. 6, § 153.

Prohibition of chancellor practicing law, see §9-1-25.

Circuit court districts and terms, see §§9-7-3 et seq.

Terms of county court, see §9-9-19.

Exemption of the judiciary from provisions of open meetings law, see §25-41-3.

Chancellor violating gambling law, see §97-33-3.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 1- 9, 22, 23.

CJS.

21 C.J.S., Courts §§ 121-135, 148-170.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 3.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed of the following” for “shall be comprised of the following” in the introductory paragraph.

Editor’s Notes —

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 4.

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 1.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment substituted “four (4) chancellors” for “three (3) chancellors” in (1); and added (2).

The 2015 amendment, in (2), deleted “For purposes of appointment and election” from the beginning of the first sentence, substituted “must be a resident” for “shall be a resident” in the second sentence, “must reside in Itawamba” for “shall be a resident of Itawamba” in the third sentence, and “may be a resident” for “shall be a resident” in the fourth sentence, and deleted “of Mississippi” from the end of the last sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 5.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence.

Cross References —

Terms of chancery court in Rankin County as twentieth chancery court district, see §9-5-57.

JUDICIAL DECISIONS

1. In general.

Summons by publication addressed to a nonresident minor made returnable on a day which is neither a rules day nor the first day of a regular term of court is void on direct attack. Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 1948 Miss. LEXIS 244 (Miss. 1948).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 6.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 7.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 2.

Amendment Notes —

The 2005 amendment added (2)(b).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 8.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 64, provides:

“SECTION 64. Candidates for new chancellorships and circuit judgeships created by this act shall run for those offices in a special election to be conducted in conjunction with the general election of November 2015. Candidates shall file the intent to be a candidate not later than 5:00 p.m. on June 1, 2015, and otherwise shall qualify as provided by Section 23-15-977, and shall run for office and be elected as provided in Sections 23-15-974 through 23-15-985 (Nonpartisan Judicial Election Act). The judges elected shall serve a three-year term to begin January 1, 2016, and the terms of those offices shall thereafter be as is provided for chancellors and circuit judges generally.”

Amendment Notes —

The 2015 amendment, effective until January 1, 2016, substituted “is composed of” for “is comprised of” in the introductory paragraph; and effective from and after January 1, 2016, substituted “is composed of” for “is comprised of” in (1), and added (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 9.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 62 provides:

“SECTION 62. The boundaries of the precincts described in Sections 9-5-17 (Fifth Chancery Court District), 9-5-31, (Ninth Chancery Court District), 9-5-37 (Eleventh Chancery District), 9-5-43 (Fourteenth Chancery Court District), 9-5-51 (Seventeenth Chancery Court District), 9-7-21 (Sixth Circuit Court District), 9-7-23 (Seventh Circuit Court District), 9-7-29 (Ninth Circuit Court District) and 9-7-33 (Eleventh Circuit Court District), Mississippi Code of 1972, shall be the boundaries of the precincts as those boundaries are contained in the Census Bureau’s 2010 TIGER/Line Shapefiles released in November 2010. Partial or split precincts are identified by an asterisk (*).”

Amendment Notes —

The 2015 amendment substituted “is composed of” for “is comprised of” in (1); and in (2), added “and Jackson State” at the end of (c), inserted “1, Byram 2” in (d), and deleted “Precincts” following Hinds County, rearranged the list of precincts to put them in numerical order, and made minor stylistic changes throughout.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 10.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 11.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 12.

The preamble to Laws of 2005 of ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 3.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment added (2).

The 2015 amendment deleted “For purposes of appointment and election” from the beginning of (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 13.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence of (1).

JUDICIAL DECISIONS

1. Jurisdiction.

Separate maintenance was related to the transaction forming the basis of a former husband’s complaint for divorce as he conceded that he sought a divorce in Florida in order to avoid or cease his separate maintenance obligation in Mississippi; in his Florida complaint, the husband asserted that no alimony was sought. To the contrary, the Mississippi separate maintenance orders showed a basis for a possible award of alimony, and the former wife’s motion to enforce the Mississippi orders did not waive personal jurisdiction for alimony purposes. Because the Florida court did not obtain personal jurisdiction over the former wife, and its judgment was not res judicata over her claim for alimony, the issue of alimony was properly before a chancery court in Mississippi. Lofton v. Lofton, 924 So. 2d 596, 2006 Miss. App. LEXIS 168 (Miss. Ct. App. 2006).

Editor’s Notes —

The version of this section that is currently in effect is not certain. The amendments in the second tier of this section are to take effect from and after the date the bill containing the amendments is effectuated under Section 5 of the Voting Right Act of 1965, as amended and extended. The bill was submitted to the United States Attorney General under Section 5, but the Attorney General has not yet responded to the submission. The United States Supreme Court, in the case of Shelby County v. Holder (June 25, 2013), struck down the coverage formula that determined what jurisdictions are subject to Section 5 of the Voting Rights Act, so the coverage formula can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.

Because of the Shelby County decision, the United States Attorney General is not making any determinations under Section 5 on voting or election changes made by states. The Supreme Court did not strike down Section 5, so it is still in effect. It has not yet been determined if bills that were submitted to the United States Attorney General under Section 5 and were pending at the time of the Shelby County decision are now in effect as a result of that decision. After such a determination has been made, that information will be included in the Advance Code Service.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 14.

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 4.

Amendment Notes —

The 2005 amendment provided for two versions of the section effective until January 1, 2011, and effective from and after January 1, 2011; in the version effective from and after January 1, 2011, rewrote the section.

The 2010 amendment, in the second version, effective January 1, 2011, rewrote the section.

OPINIONS OF THE ATTORNEY GENERAL

Senate Bill 2339 of 2005 [Chapter 501, Laws of 2005] does not, by its express terms, amend, modify or repeal Sections 9-5-255 and 41-21-61 (a). Miller, Aug. 2, 2005, A.G. Op. 05-0206.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 15.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 16.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment deleted “For purposes of appointment and election” from the beginning of (2); and made a minor stylistic change in (3).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 17.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 62 provides:

“SECTION 62. The boundaries of the precincts described in Sections 9-5-17 (Fifth Chancery Court District), 9-5-31, (Ninth Chancery Court District), 9-5-37 (Eleventh Chancery District), 9-5-43 (Fourteenth Chancery Court District), 9-5-51 (Seventeenth Chancery Court District), 9-7-21 (Sixth Circuit Court District), 9-7-23 (Seventh Circuit Court District), 9-7-29 (Ninth Circuit Court District) and 9-7-33 (Eleventh Circuit Court District), Mississippi Code of 1972, shall be the boundaries of the precincts as those boundaries are contained in the Census Bureau’s 2010 TIGER/Line Shapefiles released in November 2010. Partial or split precincts are identified by an asterisk (*).”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in (1); substituted “is composed” for “shall be comprised” in (1); and in (2), rewrote ((a)(i) and (ii), which read: “(i) Sunflower County: Indianola 3 North, Indianola 3 South, Ruleville, Boyer-Linn, Fairview-Hale, Rome, Sunflower Plantation, Drew and Ruleville North Precincts; and (ii) Washington County: Buster Brown Community Center, Extension Building, Faith Lutheran Church, Brent Center, William Percy Library, American Legion, Metcalf City Hall, Elks Club, Leland Health Department Clinic, Leland Light and Water Plant and Greenville Industrial College Precincts”; and rewrote (b)(i) and (ii), which read: “(i) Sunflower County: Inverness, Indianola 1, Moorhead, Indianola 2 West, Indianola 2 East, Sunflower, Indianola 3 Northeast and Doddsville Precincts; and (ii) Washington County: St. James Episcopal Church, Swiftwater Baptist Church, Glen Allan Health Clinic, Italian Club, Ward’s Recreation Center, Avon Health Center, Arcola City Hall, Kapco Co., Hollandale City Hall, Darlove Baptist Church, Mangelardi Bourbon Store and Grace Methodist Church Precincts.”

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 18.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 19.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 20.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 5.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment substituted “four (4) chancellors” for “three (3) chancellors” in (1); and rewrote (2).

The 2015 amendment, in (2), deleted “For purposes of appointment and election” from the beginning of the first sentence, substituted “may be a resident” for “shall be a resident” in the second sentence and “must be a resident” for “shall be a resident” in the third and fourth sentences, and deleted “of Mississippi” from the end of the last sentence.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 21.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 62 provides:

“SECTION 62. The boundaries of the precincts described in Sections 9-5-17 (Fifth Chancery Court District), 9-5-31, (Ninth Chancery Court District), 9-5-37 (Eleventh Chancery District), 9-5-43 (Fourteenth Chancery Court District), 9-5-51 (Seventeenth Chancery Court District), 9-7-21 (Sixth Circuit Court District), 9-7-23 (Seventh Circuit Court District), 9-7-29 (Ninth Circuit Court District) and 9-7-33 (Eleventh Circuit Court District), Mississippi Code of 1972, shall be the boundaries of the precincts as those boundaries are contained in the Census Bureau’s 2010 TIGER/Line Shapefiles released in November 2010. Partial or split precincts are identified by an asterisk (*).”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the first sentence of (1); and in (2), rewrote (a) and (b), which read: “(a) Subdistrict 11-1 shall consist of Holmes County, Yazoo County and Canton Precinct 4, Canton Precinct 5, Smith School, Magnolia Heights and Flora Precincts of Madison County; (b) Subdistrict 11-2 shall consist of Leake County and Farmhaven, Madisonville, Trace Harbor, Canton Precinct 1, Canton Precinct 2, Canton Precinct 3, Canton Precinct 6, Cameron Street, Bear Creek, Madison, Ridgeland, Gluckstadt, Lorman/Cavalier, Virlilia, Cameron, Couparle, Camden and Sharon Precincts of Madison County.”

Cross References —

Administrative Office of Courts to assist court clerks, see §9-21-3.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 22.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 64, provides:

“SECTION 64. Candidates for new chancellorships and circuit judgeships created by this act shall run for those offices in a special election to be conducted in conjunction with the general election of November 2015. Candidates shall file the intent to be a candidate not later than 5:00 p.m. on June 1, 2015, and otherwise shall qualify as provided by Section 23-15-977, and shall run for office and be elected as provided in Sections 23-15-974 through 23-15-985 (Nonpartisan Judicial Election Act). The judges elected shall serve a three-year term to begin January 1, 2016, and the terms of those offices shall thereafter be as is provided for chancellors and circuit judges generally.”

Amendment Notes —

The 2015 amendment, effective January 1, 2016, rewrote the section, which read: “There shall be two (2) chancellors for the Eleventh Chancery Court District. One (1) chancellor shall be elected from each subdistrict.”

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 23.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for ”shall be comprised” in the introductory language.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 24.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 6.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment added (2).

The 2015 amendment deleted “For purposes of appointment and election” from the beginning of (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 25.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 7.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment added (2).

The 2015 amendment substituted “is composed” for “shall be comprised” in (1); and deleted “For purposes of appointment and election” from the beginning of the last sentence in (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 26.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 62 provides:

“SECTION 62. The boundaries of the precincts described in Sections 9-5-17 (Fifth Chancery Court District), 9-5-31, (Ninth Chancery Court District), 9-5-37 (Eleventh Chancery District), 9-5-43 (Fourteenth Chancery Court District), 9-5-51 (Seventeenth Chancery Court District), 9-7-21 (Sixth Circuit Court District), 9-7-23 (Seventh Circuit Court District), 9-7-29 (Ninth Circuit Court District) and 9-7-33 (Eleventh Circuit Court District), Mississippi Code of 1972, shall be the boundaries of the precincts as those boundaries are contained in the Census Bureau’s 2010 TIGER/Line Shapefiles released in November 2010. Partial or split precincts are identified by an asterisk (*).”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised of” in (1); rewrote (2)(a), which read: “Subdistrict 14-1 shall consist of Chickasaw County, Webster County and the following precincts in Oktibbeha County: West Starkville, Adaton, North Longview, Self Creek, Double Springs, Northeast Starkville, East Starkville, North Starkville, Maben, South Starkville, South Longview, Craig Springs, Bradley, Center Grove and Sturgis Precincts”; in (2)(b), alphabetized the precincts in (i), and rewrote (ii), which read: “Lowndes County: Caledonia, Steens A, Steens B, Caldwell, Stokes Beard B, Fairview, Sale, Rural Hill B, Lee High, Brandon, Franklin, Air Base A, Air Base B, Air Base C, Steens C, Rural Hill A, New Hope A, Mitchell, New Hope B, Union Academy A and University A Precincts”; in (2)(c), in (i), alphabetized the precincts, and deleted “Una” from the list, rewrote (ii), which read: “Lowndes County: Stokes Beard A, Fair Grounds, Coleman, Plum Grove A, Crawford A, Hunt B, Hunt A, Union Academy B, University B, West Lowndes, Artesia, Mayhew, Crawford B, Crawford C, New Hope C and Plum Grove B Precincts; and,” rewrote (iii), which read: “Oktibbeha County: Osborn, Hickory Grove, Bell Schoolhouse, Central Starkville, Gillespie Street Center, Sessums and Oktoc Precincts”; and made minor stylistic changes throughout.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 27.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 28.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory paragraph.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 29.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory paragraph.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 30.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment deleted “For the purposes of appointment and election” from the beginning of (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 31.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 62 provides:

“SECTION 62. The boundaries of the precincts described in Sections 9-5-17 (Fifth Chancery Court District), 9-5-31, (Ninth Chancery Court District), 9-5-37 (Eleventh Chancery District), 9-5-43 (Fourteenth Chancery Court District), 9-5-51 (Seventeenth Chancery Court District), 9-7-21 (Sixth Circuit Court District), 9-7-23 (Seventh Circuit Court District), 9-7-29 (Ninth Circuit Court District) and 9-7-33 (Eleventh Circuit Court District), Mississippi Code of 1972, shall be the boundaries of the precincts as those boundaries are contained in the Census Bureau’s 2010 TIGER/Line Shapefiles released in November 2010. Partial or split precincts are identified by an asterisk (*).”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in (1); and in (2), rewrote (a), which read: “Subdistrict 17-1 shall consist of Claiborne County, Jefferson County, and the following precincts in Adams County: Maryland Heights, Palestine, Northside School, Thompson, Pine Ridge, Airport, Anchorage and Washington Precincts,” and rewrote (b), which read: “Subdistrict 17-2 shall consist of Wilkinson County and the following precincts in Adams County: Courthouse, By-Pass Fire Station, Cloverdale, Bellemont, Carpenter No. 1, Duncan Park, Beau Pre, Kingston, Concord, Liberty Park, Morgantown and Oakland Precincts.”

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 32.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory language.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 33.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 2005, ch. 501, § 8.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment added (2).

The 2015 amendment deleted “For purposes of appointment and election” from the beginning of (2).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 34.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory language.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 35.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment deleted “comprised of” preceding “Rankin County.”

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the addition of this section by Laws, 1994, ch. 564, § 36.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Laws of 2015, ch. 476, § 64, provides:

“SECTION 64. Candidates for new chancellorships and circuit judgeships created by this act shall run for those offices in a special election to be conducted in conjunction with the general election of November 2015. Candidates shall file the intent to be a candidate not later than 5:00 p.m. on June 1, 2015, and otherwise shall qualify as provided by Section 23-15-977, and shall run for office and be elected as provided in Sections 23-15-974 through 23-15-985 (Nonpartisan Judicial Election Act). The judges elected shall serve a three-year term to begin January 1, 2016, and the terms of those offices shall thereafter be as is provided for chancellors and circuit judges generally.”

Amendment Notes —

The 2015 amendment, effective January 1, 2016, substituted “three (3)” for “two (2)” both times it appears, and added “and ‘Place Three’ ” at the end, and made related stylistic changes.

Cross References —

Constitutional jurisdiction of the chancery court, see Miss. Const. Art. 6, § 159.

Jurisdiction of Supreme Court, see §9-3-9.

Jurisdiction of circuit courts generally, see §§9-7-81 et seq.

Jurisdiction of county courts, see §9-9-21.

Civil practice and procedure provisions common to courts, see §11-1-1 et seq.

Prohibition against reversal of judgment or decree in civil case for want of jurisdiction to render, see §11-3-9.

Civil practice and procedure in chancery courts generally, see §§11-5-1 et seq.

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

Provisions pertaining to injunctions, see §§11-13-1 et seq.

Suits to confirm title or interest, and to remove clouds on title, see §§11-17-1 et seq.

Jurisdiction over real property interests, see §11-17-37.

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 by and against state or its political subdivisions, see §§11-45-1 et seq.

Provision that a person aggrieved by the refusal or neglect of a registrar or election commissioner to perform any duty relative to registration of electors may petition the chancery court for injunctive relief, see §23-15-95.

Determination of primary election contests by a circuit judge or chancellor, see §§23-15-929 through23-15-941.

Proceedings to compel public access to public records, see §25-61-13.

Jurisdiction of appeals from school closing order of board of trustees, see §37-65-129.

Jurisdiction of and procedures in chancery court for involuntary commitment proceedings, see §41-21-63.

Appeal from denial, suspension or revocation of license to operate ambulatory surgical facility, see §41-73-23.

Jurisdiction of chancery court to issue injunction and appoint receiver under Medicaid Fraud Control Act, see §43-13-227.

Jurisdiction of organization of master water management district, see §§51-7-1 et seq.

Jurisdiction over creation of urban flood and drainage control district, see §51-35-307.

Appeals from adverse actions by the state board of pharmacy on licenses or permits, see §73-21-101.

Enforcement by chancery court of monetary penalty assessed by state board of pharmacy, see §73-21-103.

Proceedings to restrain or prevent violations of consumer protection law, see §75-24-9.

Jurisdiction of appeals under the meat, meat-food and poultry regulation and inspection law, see §75-33-23.

Proceedings for removal of directors of nonprofit corporations, see §79-11-249.

Chancery court’s power to order inspection and copying of records of nonprofit corporation, see §79-11-289.

Jurisdiction of chancery court with respect to foreign nonprofit corporation’s appeal of revocation of its certificate of authority, see §79-11-389.

Jurisdiction of chancery court where person fails or refuses to properly execute certificate relative to limited partnership, see §79-14-205.

Jurisdiction of chancery court with respect to application for dissolution of limited partnership, see §79-14-802.

Jurisdiction of chancery court with respect to winding up limited partnership’s affairs, see §79-14-803.

Jurisdiction to establish escheats, see §89-11-11.

Jurisdiction of proceedings brought by trustee or beneficiary concerning administration of a trust, see §91-8-203.

Jurisdiction in suits for divorce, see §93-5-5.

Jurisdiction of suits for annulment of marriage, see §§93-7-11,93-7-13.

Jurisdiction of proceedings under the uniform law on paternity, see §93-9-15.

Jurisdiction to enjoin a nuisance, see §95-3-7.

Jurisdiction to entertain suits against violators of intoxicating liquor laws, see §§99-27-41.

JUDICIAL DECISIONS

I. Matters in Equity.

1. In general.

2. Legal remedy as affecting relief in equity.

3. Jurisdiction in general.

4. —Foreign persons, controversies and decrees.

5. Equitable causes.

6. —Fraud or false representations.

7. —Mistake.

8. —Multiplicity of actions.

9. Penalties and forfeitures.

10. Subjects of jurisdiction.

11. —Property rights.

12. —Preservation of property.

13. —Contracts.

14. —Conveyances, mortgages and liens.

15. —Trusts.

16. —Adoptions.

17. —Miscellaneous.

18. Equitable suits and remedies.

19. —Accounting.

20. —Discovery.

21. —Injunction.

22. —Condemnation proceedings.

23. —Exercise of trust powers.

24. Filing of criminal charges.

25. —Foreign judicial proceedings.

26. —Labor disputes.

27. —Nuisances and unlawful obstructions.

28. —Trespass.

29. —Violations of ordinances.

30. —Cancellation and rescission.

31. —Recoupment.

32. —Reformation.

33. Specific performance.

34. —Interpleader.

35. —Bill of revivor.

36. Relief from judgments.

37. Appeal; bill of review.

II. Divorce and Alimony.

38. Jurisdiction in general.

39. Annulment.

40. Separate maintenance.

III. Matters Testamentary and of Administration.

41. Jurisdiction in general.

42. Powers and authority of court.

43. Jurisdiction in particular matters.

IV. Minor’s Business.

44. Jurisdiction in general.

45. Jurisdiction in particular matters.

V. Idiocy, Lunacy, and Persons of Unsound Mind.

46. Jurisdiction in general.

47. Jurisdiction in particular matters.

VI. Cases Transferred from Circuit Court, or Remanded by Supreme Court.

48. In general.

VII. Other Cases Provided by Law.

49. Jurisdiction in general.

50. Accounting.

51. Assignment.

52. Attachment.

53. Creditors’ bills to set aside fraudulent conveyances.

54. Land titles.

55. Liens.

56. Mutual accounts.

57. Official and fiduciary bonds.

58. Personal decrees.

59. Receivers.

60. Penalties.

61. Miscellaneous.

I. Matters in Equity.

1. In general.

While subject matter jurisdiction lay within either the circuit or the chancery court, the circuit court had subject matter jurisdiction of heavy equipment vendor’s action against a county board of supervisors where the amended complaint, although it sought some relief equitable in nature, in substantial part partook of an action at law, in that it charged the board of supervisors with breach of duties not unlike those generally contractual, and the complaint sought the assessment of civil penalties. Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1987 Miss. LEXIS 2273 (Miss. 1987).

Where under a divorce decree, entered pursuant to an agreement of the parties thereto relative to the support and maintenance of the parties’ two children, the father assumed obligation to transfer to the children two insurance policies, but failed to do so before his death, equity would treat the children as clothed with the same interests as if the duty had been actually performed. Mahaffey v. First Nat'l Bank, 231 Miss. 798, 97 So. 2d 756, 1957 Miss. LEXIS 567 (Miss. 1957).

Chancery court of this state derives its equity jurisprudence from English Court of Chancery. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Equity will order that done which ought to have been done. United States Fidelity & Guaranty Co. v. Marathon Lumber Co., 119 Miss. 802, 81 So. 492, 1919 Miss. LEXIS 49 (Miss. 1919).

Court of equity is court of conscience, and exercising broad discretion should see that wrong and oppression are not inflicted under guise of legal procedure, but that justice is done as the right of each case demands. Herring v. Sutton, 86 Miss. 283, 38 So. 235, 1905 Miss. LEXIS 19 (Miss. 1905).

Equity is defined to be that system of justice which was administered by the high court of chancery in England. Smith v. Everett, 50 Miss. 575, 1874 Miss. LEXIS 95 (Miss. 1874), overruled, Bank of Mississippi v. Duncan, 52 Miss. 740, 1876 Miss. LEXIS 287 (Miss. 1876).

2. Legal remedy as affecting relief in equity.

A personal injury action arising out of an automobile accident was outside the subject matter jurisdiction of the chancery court although it was alleged that full, adequate and expeditious relief could not be granted by a circuit court and the expenses for discovery required in circuit court would be exorbitant, time consuming and inadequate. Blackledge v. Scott, 530 So. 2d 1363, 1988 Miss. LEXIS 434 (Miss. 1988).

Mortgagee will not be enjoined from foreclosing until accounting can be had between parties concerning a difference in attorney’s fees where there was a plain, adequate, and complete remedy at law. Hub Bldg. & Loan Ass'n v. Warren, 207 Miss. 297, 42 So. 2d 203, 1949 Miss. LEXIS 340 (Miss. 1949).

Chancery court having taken jurisdiction on any ground of equity will administer full relief, although ground of equity fails under proof and remaining issues present legal subjects only and decree will cover only legal rights and grant legal remedies. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Resort to equity is improper if there is a plain, adequate and complete remedy at law. Pollard v. Phalen, 98 Miss. 155, 53 So. 453, 1910 Miss. LEXIS 47 (Miss. 1910).

The court cannot grant relief against a judgment at law where the remedy at law is plain and adequate. McKinney v. Willis, 64 Miss. 82, 1 So. 3, 1886 Miss. LEXIS 19 (Miss. 1886).

3. Jurisdiction in general.

The chancery court is a court of record and of general jurisdiction. Hollingsworth v. Central Oil Co., 236 Miss. 779, 112 So. 2d 518, 1959 Miss. LEXIS 376 (Miss. 1959).

Section 147 of Constitution, prohibiting reversal of decree in chancery for want of jurisdiction by reason of error as to whether cause was one of equity or common-law jurisdiction, covers only cases in which trial judge assumes jurisdiction, but where judge declines jurisdiction when in fact case is one good in equity, his action is reviewable. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Chancery court taking jurisdiction will retain the cause and adjust all equities. Barber v. Barber, 106 Miss. 128, 63 So. 343, 1913 Miss. LEXIS 114 (Miss. 1913).

The court having taken jurisdiction of a bill because of an equitable feature charged, does not lose it because such feature is not maintained by the evidence, and may adjudicate the legal rights of the parties. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

The inhibition of § 147 of the Constitution against the reversal of a decree because the case was one of common law jurisdiction, does not confer jurisdiction of such a case upon the chancery court. Carbolineum Wood-Preserving & Mfg. Co. v. Meyer, 76 Miss. 586, 25 So. 297, 1898 Miss. LEXIS 138 (Miss. 1898).

The court will not take jurisdiction where the matters in controversy are actually pending in the circuit court, since to do so might lead to different results in the two courts. Ricks v. Richardson, 70 Miss. 424, 11 So. 935, 1892 Miss. LEXIS 81 (Miss. 1892).

“Full jurisdiction” indicates that where a court takes hold of a subject it ought to dispose of it fully and finally. Bank of Mississippi v. Duncan, 52 Miss. 740, 1876 Miss. LEXIS 287 (Miss. 1876); Georgia P. R. Co. v. Brooks, 66 Miss. 583, 6 So. 467, 1889 Miss. LEXIS 150 (Miss. 1889); Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615, 1889 Miss. LEXIS 6 (Miss. 1889).

The legislature may confer on the chancery court jurisdiction of legal matters in aid of its authority over the principal matter of equitable nature. Bank of Mississippi v. Duncan, 52 Miss. 740, 1876 Miss. LEXIS 287 (Miss. 1876); Buie v. Pollock, 55 Miss. 309, 1877 Miss. LEXIS 137 (Miss. 1877).

4. —Foreign persons, controversies and decrees.

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).

The chancery court of Mississippi has no power to set aside a decree of the chancery court of Arkansas. Cliburn v. Cliburn, 209 Miss. 631, 48 So. 2d 126, 1950 Miss. LEXIS 424 (Miss. 1950).

The court has jurisdiction of a bill for relief filed against a non-resident 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).

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 demands of creditors the effects in this state of a nonresident. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

5. Equitable causes.

In an action relating to waste disposal, a transfer to a chancery court was improper because equitable claims were not added until after the transfer, and the action had been pending in the circuit court for five years before the transfer was requested. Georgia-Pacific Corp. v. Mooney, 909 So. 2d 1081, 2005 Miss. LEXIS 73 (Miss. 2005).

The court has jurisdiction, where one corporation transfers all its property to another, to enforce its liabilities against the property in the hands of the purchasing corporation, if the transfer is not in good faith, and its jurisdiction is not affected because incidentally the ascertainment of unliquidated damages is involved. Vicksburg & Y. C. Tel. Co. v. Citizens' Tel. Co., 79 Miss. 341, 30 So. 725, 1901 Miss. LEXIS 76 (Miss. 1901).

6. —Fraud or false representations.

Jurisdiction of court of equity to relieve against fraud and its legal equivalent with respect to judgments and decrees is as ample as that respecting contracts, dominant requirements being that facts constituting fraud, accident, mistake or surprise must have been controlling factors in effectuation of original decree, without which original decree would not have been made as it was made; facts justifying relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; facts must not have been known to injured party at time of original decree, and his ignorance at time must not have been result of want of reasonable care and diligence. Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

Chancery court has general jurisdiction of fraud. Foote-Patrick Co. v. Caladonia Ins. Co., 113 Miss. 419, 74 So. 292, 1917 Miss. LEXIS 116 (Miss. 1917).

Where an illiterate colored man was induced to exchange his land for other land worth not more than half his land by one in whom he had confidence representing other parties, deed was properly set aside for fraud. Carter v. Eastman Gardner & Co., 95 Miss. 651, 48 So. 615, 1909 Miss. LEXIS 226 (Miss. 1909).

7. —Mistake.

Equity will not give any relief from mistake if party could by reasonable diligence have ascertained real facts; nor where means of information are open to both parties and no confidence is reposed, but relief may be proper if enforcement of contract would be unconscionable and party making mistake was in exercise of ordinary diligence. Hunt v. Davis, 208 Miss. 710, 45 So. 2d 350, 1950 Miss. LEXIS 290 (Miss. 1950).

Equity will never give any relief from a mistake, if the party could by reasonable diligence, have ascertained the real facts, or where the means of information are open to both parties and no confidence is reposed. Terre Haute Cooperage v. Branscome, 203 Miss. 493, 35 So. 2d 537, 1948 Miss. LEXIS 297 (Miss. 1948).

Equity will grant appropriate relief to a party to a contract for a unilateral mistake under proper circumstances. Terre Haute Cooperage v. Branscome, 203 Miss. 493, 35 So. 2d 537, 1948 Miss. LEXIS 297 (Miss. 1948).

Equity will interfere to prevent unfair advantage of judgment rendered by mutual mistake of facts. Robertson v. Aetna Ins. Co., 134 Miss. 398, 98 So. 833, 1924 Miss. LEXIS 263 (Miss. 1924).

Equity jurisdiction of mistake is as broad and extensive as in case of fraud. Brown v. Wesson, 114 Miss. 216, 74 So. 831, 1917 Miss. LEXIS 23 (Miss. 1917).

Equity will correct mistake in description of land conveyed in a deed. McAllister v. Richardson, 103 Miss. 418, 60 So. 570, 1912 Miss. LEXIS 188 (Miss. 1912).

If one or both of the parties to an instrument are mistaken as to the subject matter, if the mistake is material equity will grant relief. Allen v. Luckett, 94 Miss. 868, 48 So. 186, 1909 Miss. LEXIS 339 (Miss. 1909).

Generally a mistake of law pure and simple is not ground for relief but there are some exceptions. Powell v. Plant, 23 So. 399 (Miss. 1898).

The court has jurisdiction to afford relief where there has been a mistake and such consequent confusion of goods that there is no adequate remedy at law. Selleck v. Macon Compress & Warehouse Co., 72 Miss. 1019, 17 So. 603, 1895 Miss. LEXIS 23 (Miss. 1895).

8. —Multiplicity of actions.

Where the rights and remedies of the complainants are entirely separate, independent and distinct, they cannot maintain a joint action either at common law or equity. Newton Oil & Mfg. Co. v. Sessums, 102 Miss. 181, 59 So. 9 (Miss. 1912).

To warrant joinder of all in one suit there must be some recognized ground of equitable interference or some community of interest in the subject-matter or a common right or title involved or a common purpose in pursuit of a common adversary where each may resort to equity. Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559, 1910 Miss. LEXIS 1 (Miss. 1910).

Where injury is continuous in its nature equity will interfere to prevent a multiplicity of suits. Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559, 1910 Miss. LEXIS 1 (Miss. 1910).

Actions at law by different parties for different forms of negligence will not be enjoined. Gulf Compress Co. v. Wooten Cotton Co., 98 Miss. 651, 54 So. 86, 1910 Miss. LEXIS 106 (Miss. 1910).

There is a marked difference between “multiplicity of suits” and “multitude of suits.” Gulf & S. I. R. Co. v. Barnes, 94 Miss. 484, 48 So. 823, 1909 Miss. LEXIS 359 (Miss. 1909); Cumberland Tel. & Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559, 1910 Miss. LEXIS 1 (Miss. 1910).

Suits must be governed by same principles of law and practically the same facts before equity jurisdiction attaches. Gulf & S. I. R. Co. v. Barnes, 94 Miss. 484, 48 So. 823, 1909 Miss. LEXIS 359 (Miss. 1909); Gulf Compress Co. v. Wooten Cotton Co., 98 Miss. 651, 54 So. 86, 1910 Miss. LEXIS 106 (Miss. 1910).

Bill to avoid multiplicity of suits will not lie where the same law and facts do not apply to all the claims. Gulf & S. I. R. Co. v. Barnes, 94 Miss. 484, 48 So. 823, 1909 Miss. LEXIS 359 (Miss. 1909).

To avoid a multiplicity of suits complainant was entitled to maintain bill to restrain ejectment at law. Butler v. Scottish-American Mortg. Co., 93 Miss. 215, 46 So. 829, 1908 Miss. LEXIS 110 (Miss. 1908).

Equity has jurisdiction to restrain prosecution of a number of actions at law based upon the same state of facts. Whitlock v. Yazoo & M. V. R. Co., 91 Miss. 779, 45 So. 861, 1907 Miss. LEXIS 199 (Miss. 1907).

The court will not take jurisdiction on the ground of multiplicity to enjoin three separate actions at law, though the defense to all of them is the same. Johnston v. Stone, 71 Miss. 593, 14 So. 81, 1893 Miss. LEXIS 121 (Miss. 1893).

The court has no jurisdiction, in order to prevent a multiplicity of suits, to enjoin separate actions to recover damages against the complainant where the plaintiffs have no common interest except in the questions of law and fact involved and where they could not be proceeded against by the complainant separately. Tribbette v. Illinois C. R. Co., 70 Miss. 182, 12 So. 32, 1892 Miss. LEXIS 87 (Miss. 1892).

9. Penalties and forfeitures.

Where optional right of forfeiture is solely in the hands of one of the parties equity will enforce forfeiture of contract only where he acts with promptness and at the earliest reasonable time after default. Gannaway v. Toler, 122 Miss. 111, 84 So. 129, 1920 Miss. LEXIS 423 (Miss. 1920).

Equity will not enforce forfeiture, but will relieve against it. Eckert v. Searcy, 114 Miss. 150, 74 So. 818, 1917 Miss. LEXIS 15 (Miss. 1917).

Courts of equity cannot refuse to enforce statutory penalties. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

The rule that equity will not enforce a penalty applies only to penalties imposed by private contract, and not to statutory penalties. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

Where chancery court takes jurisdiction of suit to recover penalties under Code 1906 § 5004 Supreme Court will not reverse case solely on ground of want of jurisdiction. Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, 1910 Miss. LEXIS 92 (Miss. 1910).

The chancery court in proper cases will enforce statutory penalties as, where having jurisdiction for one purpose, the enforcement of such penalty is necessary to full relief. State v. Hall, 70 Miss. 678, 13 So. 39, 1893 Miss. LEXIS 49 (Miss. 1893).

10. Subjects of jurisdiction.

The ascertainment of boundaries alone does not confer jurisdiction as a separate ground of equity. Wroten v. Fenn, 203 Miss. 361, 35 So. 2d 534, 1948 Miss. LEXIS 279 (Miss. 1948).

11. —Property rights.

Section65-7-201’s procedure for establishing a private right-of-way is not a complete and adequate alternative remedy to the recognition and enforcement of an easement of way by necessity; thus, §65-7-201 was not a bar to the chancery court’s granting of equitable relief in establishing an easement by necessity. Broadhead v. Terpening, 611 So. 2d 949, 1992 Miss. LEXIS 824 (Miss. 1992).

Where a bill sought to cancel a cloud on the title to real estate and an injunction to prevent acts of alleged trespass, and discovery, the chancery court did not err in refusing to transfer the case to Circuit Court. Evans v. Broadhead, 233 So. 2d 771, 1970 Miss. LEXIS 1667 (Miss. 1970).

Unless some property rights are involved, civil courts have no jurisdiction over ecclesiastical controversy and are without jurisdiction to decide who is, or who ought to be, presiding bishop of diocese. Conic v. Cobbins, 208 Miss. 203, 44 So. 2d 52, 1950 Miss. LEXIS 240 (Miss. 1950).

Provision in church manual permitting bishops to retain 10% of all monies raised by them in their respective dioceses does not give an ousted bishop such property rights in monies raised by his successor in dioceses as to entitle him to invoke jurisdiction of civil courts as to the 10% claimed by him. Conic v. Cobbins, 208 Miss. 203, 44 So. 2d 52, 1950 Miss. LEXIS 240 (Miss. 1950).

Equity has jurisdiction to apportion between owners of property burden of common lien thereon. Swalm v. Sauls, 141 Miss. 515, 106 So. 775, 1926 Miss. LEXIS 454 (Miss. 1926).

Circumstances calling for equity to assume jurisdiction of boundary dispute between parties claiming through common grantor stated. Middleton v. Howell, 127 Miss. 880, 90 So. 725, 1921 Miss. LEXIS 292 (Miss. 1921).

The court has jurisdiction to 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).

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).

The court has jurisdiction under § 500 Code 1892 (§ 550 Code 1906), of suits to remove clouds upon the title to real estate, if the complainant has a perfect legal or equitable title. Gentry v. Gamblin, 79 Miss. 437, 28 So. 809, 1901 Miss. LEXIS 4 (Miss. 1901).

The court has jurisdiction under § 2576 Code 1880 (Code 1906 § 3525), in a partition suit to adjudicate all conflicting claims of those properly joined as parties. This is true even where a defendant denies he is a co-tenant and asserts adverse title. Claughton v. Claughton, 70 Miss. 384, 12 So. 340, 1892 Miss. LEXIS 121 (Miss. 1892).

The chancery court, upon petition of a purchaser at a sale, under a decree made by it, may issue a writ of assistance to put the grantee of the purchaser in possession of the land bought, if the grantee, though not a party to the record, be entitled to possession as against him who has the possession. Gibson v. Marshall, 64 Miss. 72, 8 So. 205, 1886 Miss. LEXIS 16 (Miss. 1886).

To prevent a multiplicity of suits the court has jurisdiction of a bill by the purchaser of personal property which has been attached in his hands by creditors of the seller against the sheriff and attaching creditors to recover from the proceeds of a sale under the attachments a sum equal to the debt satisfied by his purchase. Lowenstein v. Abramsohn, 76 Miss. 890, 25 So. 498, 1899 Miss. LEXIS 10 (Miss. 1899); J. Pollock & Co. v. Okolona Sav. Institution, 61 Miss. 293, 1883 Miss. LEXIS 123 (Miss. 1883).

12. —Preservation of property.

Independently of statute the court has jurisdiction to issue a writ of sequestration for the seizure and preservation of personal property, so that it may be subject to any final decree that may be rendered. Dean v. Boyd, 86 Miss. 204, 38 So. 297, 1905 Miss. LEXIS 22 (Miss. 1905).

Notwithstanding an appeal from the final decree with supersedeas the chancery court has jurisdiction to make orders for the preservation of property in the hands of its receiver. Lamb v. Rowan, 81 Miss. 369, 33 So. 4, 1902 Miss. LEXIS 146 (Miss. 1902).

13. —Contracts.

A claim for specific performance of contract of employment plus attendant injunctive relief is within the jurisdiction of the county court on its equity side, and is also within the jurisdiction of the chancery court. Lee v. Coahoma Opportunities, Inc., 485 So. 2d 293, 1986 Miss. LEXIS 2423 (Miss. 1986).

Equity cannot give relief to party on the ground he has made an improvident contract. Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 1908 Miss. LEXIS 174 (Miss. 1908).

The court will not entertain jurisdiction of a bill for relief against a usurious contract except upon the condition that complainant submits to due equity. American Freehold Land & Mortg. Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 1892 Miss. LEXIS 20 (Miss. 1892).

Where a suit is brought in equity on a note stipulating for an attorney’s fee, if suit should be necessary to collect it, the chancery court has full jurisdiction to fix the quantum of the fee and include it in the decree. Eyrich v. Capital State Bank, 67 Miss. 60, 6 So. 615, 1889 Miss. LEXIS 6 (Miss. 1889).

14. —Conveyances, mortgages and liens.

A tort claimant may maintain an action in chancery court to set aside a conveyance made to hinder, delay or defraud such creditor without first obtaining a judgment at law ascertaining damages. Allred v. Nesmith, 245 Miss. 376, 149 So. 2d 29, 1963 Miss. LEXIS 525 (Miss. 1963).

Equity may foreclose mortgage or deed of trust independently of powers conferred on trustee by contract, and may order sale of property where trustee is precluded by stipulation to act. Smith v. Cleveland Steam Laundry, Inc., 131 Miss. 254, 95 So. 433, 1922 Miss. LEXIS 286 (Miss. 1922).

Equity foreclosing deed of trust may determine all questions in controversy. Robertson v. F. Krauss & Sons, 129 Miss. 310, 92 So. 74, 1922 Miss. LEXIS 42 (Miss. 1922).

Assignee of debt may appoint substitute trustee under provision of deed of trust allowing beneficiary, his executor, administrator, or assigns, under his hand and seal to appoint a substitute trustee. Scruggs v. Northern, 123 Miss. 169, 85 So. 89, 1920 Miss. LEXIS 15 (Miss. 1920).

The chancery court has jurisdiction of a bill by the assignee of a landlord’s claim for rent against non-resident beneficiaries of a trust deed given by the tenant on agricultural products, the trustee in which had sued out a writ of replevin against the tenant, who had given a replevin-bond, sold the cotton, and paid the proceeds to his sureties to abide the result of the suit, and against such sureties as trustees in invitum, to have the priority of his lien established and the proceeds subjected to it. Dreyfus v. Gage, 79 Miss. 403, 30 So. 691, 1901 Miss. LEXIS 59 (Miss. 1901).

The jurisdiction of the court over property exceeding one thousand dollars in value, embraced in an assignment from creditors, does not attach until the petition and bond required by §§ 117, 118, and 119 Code 1892 (Code 1906 §§ 120, 121, 122), are filed and approved. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

When jurisdiction has attached, the court will determine all controversies in which liens are asserted, including attachments. Weimer v. Scales, 74 Miss. 1, 19 So. 588, 1896 Miss. LEXIS 94 (Miss. 1896).

The court has jurisdiction to enforce, in favor of the assignee of a note for the purchase price of personal property, and of a separate written contract reserving the legal title to the property sold as security therefor, the lien thereby created. Ross-Meehan Brake-Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364, 1895 Miss. LEXIS 37 (Miss. 1895).

The court has jurisdiction of a bill to have sold for the payment of the purchase money an undivided interest in a partnership conveyed by conditional sale. Journey v. Priestly, 70 Miss. 584, 12 So. 799, 1893 Miss. LEXIS 25 (Miss. 1893).

15. —Trusts.

The chancery court properly authorized a sale of a portion of land conveyed for public burial purposes, even if the trustee of the land had no express power to sell, where the business owned by the trustee was in extreme financial difficulties and the land in question was threatened with foreclosure, and with the sale accomplished, all liens would be released and a substantial fund would be created for continued operation of the cemetery; courts of equity have an inherent power to protect trusts and may order a sale of part of the trust property if necessary for the execution of trust purposes. Hengen v. Perpetual Care Cemeteries, Inc., 230 So. 2d 795, 1970 Miss. LEXIS 1563 (Miss. 1970).

A chancery court may authorize an endowment trustee to sell sufficient of the corpus to enable it to fulfill the purpose of the endowment. Merchants Bank & Trust Co. v. Garrett, 203 Miss. 182, 33 So. 2d 603, 1948 Miss. LEXIS 248 (Miss. 1948).

Chancery court having jurisdiction of testamentary trust funds, bank acting as trustee and executor, and of the plaintiff has full jurisdiction to determine issues in respect to alleged improper handling of the trust funds. Garrett v. First Nat'l Bank & Trust Co., 153 F.2d 289, 1946 U.S. App. LEXIS 1914 (5th Cir. Miss. 1946).

Chancery court has general superintendence of all fiduciary relations, and the removal of a trustee appointed by it is within its power. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

The court has jurisdiction at the suit of the beneficiary to enforce a trust which has been abandoned by the trustee. Carey v. Fulmer, 74 Miss. 729, 21 So. 752, 1897 Miss. LEXIS 54 (Miss. 1897).

The court has jurisdiction to follow a trust fund through all changes, whether its identity is preserved or it is merged in a mass. To fix a charge upon a mass, however, complainant must show that his specific fund or thing has gone into and remains part of the mass. Shields v. Thomas, 71 Miss. 260, 14 So. 84, 1893 Miss. LEXIS 154 (Miss. 1893); Ryan v. Paine, 66 Miss. 678, 6 So. 320, 1889 Miss. LEXIS 164 (Miss. 1889); Kinney v. Paine, 68 Miss. 258, 8 So. 747, 1890 Miss. LEXIS 69 (Miss. 1890); Billingsley v. Pollock, 69 Miss. 759, 13 So. 828, 1892 Miss. LEXIS 38 (Miss. 1892).

16. —Adoptions.

The chancery court had jurisdiction to hear an adoption action even though the Youth Court had previously assumed jurisdiction of the minors involved as neglected children; although the Youth Court’s jurisdiction continued for the offense and for the purpose of the “neglected or abused” subject matter, the jurisdiction did not act to exclude the adoption proceeding in the Chancery Court, since it constituted a different subject matter. In re Petition of Beggiani, 519 So. 2d 1208, 1988 Miss. LEXIS 51 (Miss. 1988).

17. —Miscellaneous.

Courts will not decide dispute as to which party was elected deacon of church. Edwards v. De Vance, 138 Miss. 580, 103 So. 194, 1925 Miss. LEXIS 57 (Miss. 1925).

Equity has jurisdiction of suit by depositors of insolvent bank against directors for deceit in inducing them to make deposits when the bank was insolvent, to prevent multiplicity of suits. Brotherhood of Locomotive Firemen v. Hand, 90 Miss. 893, 44 So. 161, 1907 Miss. LEXIS 112 (Miss. 1907).

The court has jurisdiction of a bill by a citizen and taxpayer in his own name and behalf to prevent a violation of the Constitution by an unauthorized and unlawful action of the boards of supervisors, although the attorney general and the district attorney decline to sue and refuse to authorize the use of their names in so doing. Board of Sup'rs v. Buckley, 81 Miss. 474, 33 So. 650 (Miss. 1902).

The court has no jurisdiction to determine when highways shall be improved. In the matter of local improvements and special assessments it can only interfere in cases of fraud or oppression, or some wrong constituting a plain abuse of discretion by the local authorities. Nugent v. Mayor, etc., of Jackson, 72 Miss. 1040, 18 So. 493, 1895 Miss. LEXIS 70 (Miss. 1895).

The remedy at law being inadequate, the court has jurisdiction without previous recovery at law of a bill by the owner of a residence fronting on a street to abate as a nuisance permanent obstructions in the street. Canton Cotton Warehouse Co. v. Potts, 69 Miss. 31, 10 So. 448, 1891 Miss. LEXIS 66 (Miss. 1891).

18. Equitable suits and remedies.

Case held to be one for an accounting in equity. Evans v. Hoye, 101 Miss. 244, 57 So. 805, 1911 Miss. LEXIS 131 (Miss. 1911).

19. —Accounting.

Chancery court had concurrent jurisdiction over a suit by the client of a real estate agency seeking damages and other relief at law based on an alleged failure to properly supervise an employee because the client also made a proper request for an equitable accounting; transfer of the action to a circuit court so that the realtors could try the case to a jury trial was not required because the relators did not have an absolute right to a jury trial in a civil action. RE/Max Real Estate Partners., Inc. v. Lindsley, 840 So. 2d 709, 2003 Miss. LEXIS 118 (Miss. 2003).

Where a nursing professor established a fiduciary relationship with a former employer, and the former employer had control of all the financial information involved in the relationship, a chancery court could properly order an accounting. Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 2003 Miss. LEXIS 59 (Miss. 2003).

A bill for redemption of corporate stock, pledged as collateral for indebtedness, and an accounting brought by the owner against the corporation will lie where the stock has been retired. Hudson v. Belzoni Equipment Co., 203 Miss. 212, 33 So. 2d 796, 1948 Miss. LEXIS 252 (Miss. 1948).

An action involving numerous dealings over a period of 16 years was properly transferred to the chancery court for accounting. Dunagin v. First Nat'l Bank, 118 Miss. 809, 80 So. 276, 1918 Miss. LEXIS 135 (Miss. 1918).

One who lends money at extortionate rates of interest under a contract void as against public policy and who establishes an agency for carrying on his nefarious business cannot maintain a suit in equity against one placed by him in charge of such business for an accounting where he must call in the aid directly or indirectly of the illegal contracts to make out his case. Woodson v. Hopkins, 85 Miss. 171, 37 So. 1000, 1904 Miss. LEXIS 167 (Miss. 1904).

20. —Discovery.

When a bill is sufficient as a bill of discovery, it is not competent to challenge it by motion for a bill of particulars or by special demurrers on grounds that, as to matters about which discovery is sought and is due, the bill does not allege in that detail and precision of averment required when the complainant is in possession of the facts which will enable him so to allege. Universal Life Ins. Co. v. Keller, 197 Miss. 1, 17 So. 2d 797, 1944 Miss. LEXIS 265 (Miss. 1944).

Having jurisdiction to discover amount of timber wasted chancery court could award damages therefor although plaintiff could have sued at law. Bomer Bros. v. Warren County, 103 Miss. 343, 60 So. 328, 1912 Miss. LEXIS 178 (Miss. 1912).

Having taken jurisdiction for discovery chancery court may grant full relief in the case. Keystone Lumber Yard v. Yazoo & M. V. R. Co., 96 Miss. 116, 50 So. 445, 1909 Miss. LEXIS 11 (Miss. 1909).

Discovery is proper where a subsequent written agreement affecting liability of the parties on a note was entered into by them before its assignment, possession of which is withheld from complainant who acquired the note, leaving him uncertain of his rights. Enochs v. Mississippi Bank & Trust Co., 87 Miss. 325, 39 So. 529, 1905 Miss. LEXIS 127 (Miss. 1905).

Where a compress company and a railroad company, for their own convenience, make an agreement whereby the latter instead of delivering cotton to the consignee, delivers it to the former and turns over to the consignee compress tickets calling not for specific bales, but for an equal number of bales of average weight and quality, the court has jurisdiction of a bill by the consignee to secure equitable relief for the loss of cotton shipped and for a shortage in shipment, against either or both, when the facts, when discovered, may justify. Mississippi Cotton Compress & Warehouse Co. v. M. Levy & Co., 83 Miss. 774, 36 So. 281, 1903 Miss. LEXIS 96 (Miss. 1903).

The court has jurisdiction of a bill to cancel an acquittance, for a discovery, and an accounting, notwithstanding the defendant is a foreign corporation having its office, books and assets out of the state, and though the court may find itself powerless to grant administrative relief if the defendant declines to make the discovery. Clark v. Equitable Life Assurance Soc., 76 Miss. 22, 23 So. 453, 1898 Miss. LEXIS 60 (Miss. 1898).

21. —Injunction.

Injunction is a proper remedy to declare void a state statute. Smith v. State, 242 So. 2d 692, 1970 Miss. LEXIS 1390 (Miss. 1970).

A bill of complaint alleging that state statutes prohibiting the teaching in public schools that man ascended or descended from a lower form of animal violated the First Amendment prohibition of the United States Constitution stated a cause of action for injunctive relief in Chancery against the State Board of Education. Smith v. State, 242 So. 2d 692, 1970 Miss. LEXIS 1390 (Miss. 1970).

The court has no jurisdiction of a bill to enjoin the clerk of a lower court from incorporating certain papers in the transcript on the ground that they are not properly part of the record. Portwood v. Feld, 72 Miss. 542, 17 So. 373, 1895 Miss. LEXIS 11 (Miss. 1895).

22. —Condemnation proceedings.

The court has jurisdiction, notwithstanding an injunction against the action of the Mississippi levee commissioners is prohibited by statute, to enjoin the condemnation of land for levee purposes on the ground that one of the three persons claiming to be commissioners to assess damages is without right to the office. Hurley v. Board of Mississippi Levee Comm'rs, 76 Miss. 141, 23 So. 580, 1898 Miss. LEXIS 62 (Miss. 1898).

23. —Exercise of trust powers.

In order to enjoin a sale under a deed of trust given to secure a usurious debt it is unnecessary for the complainant to have paid or tendered more than the principal of the debt, since under the statute he could recover back all interest paid. 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).

The court may enjoin an effort to sell under the trust deed for largely more than the sum due. Carey v. Fulmer, 74 Miss. 729, 21 So. 752, 1897 Miss. LEXIS 54 (Miss. 1897).

24. Filing of criminal charges.

Equity has no jurisdiction to enjoin one from making an affidavit charging a criminal offense. Crighton v. Dahmer, 70 Miss. 602, 13 So. 237, 1893 Miss. LEXIS 55 (Miss. 1893).

25. —Foreign judicial proceedings.

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).

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 in determining right of injunction against foreign suit will consider hardship and inconvenience that may arise when party is called upon to defend at a distance. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

Citizen of state will be restrained by its courts from instituting suit in another state against another citizen, both parties at all times residing within state, upon cause of action which has been adjudicated by such courts, and arose within its jurisdiction necessary witnesses being all there, and foreign suit being instituted for purpose of harassing and annoying other party, and plaintiff being insolvent. Poole v. Mississippi Publishers Corp., 208 Miss. 364, 44 So. 2d 467, 1950 Miss. LEXIS 255 (Miss. 1950).

26. —Labor disputes.

Norris-LaGuardia Act curtails only equity jurisdiction of federal courts in field of labor disputes and has no application to equity courts of state. 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 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).

27. —Nuisances and unlawful obstructions.

Where suit, brought in the chancery court for an injunction to abate a nuisance, failed on an injunction issue, the chancellor erred in not deciding the issue of damages. Shaw v. Owen, 229 Miss. 126, 90 So. 2d 179, 1956 Miss. LEXIS 593 (Miss. 1956).

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).

Equity has jurisdiction, on grounds of injunctive relief and to prevent multiplicity of suits, of suit filed by a number of landowners against State Highway Commission for injunction to restrain continuation by defendant of common nuisance caused by obstruction of water course through respective lands of plaintiffs and for damages done to their crops and lands. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

The court has jurisdiction at the suit of private parties having a special interest to award a mandatory injunction requiring the removal from navigable waters of an unlawful obstruction. Pascagoula Boom Co. v. Dickson, 77 Miss. 587, 28 So. 724, 1900 Miss. LEXIS 53 (Miss. 1900).

28. —Trespass.

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).

29. —Violations of ordinances.

The chancery court has the power and authority to enjoin parties for violations of zoning ordinances and subdivision ordinances. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

30. —Cancellation and rescission.

In a suit by an executrix for cancellation of a deed as a forgery, where there was a sharply drawn factual issue as to whether the purported conveyance was or was not a forgery, and the evidence adduced by the parties on the issue was in irreconcilable conflict, it was the province of the chancellor as trier of fact to resolve the conflict, and in so doing the credibility of the witnesses and the weight of the evidence were matters exclusively for the determination of the chancellor, and he having resolved the issue and found as a matter of fact that the instrument was a forgery and void, and there being ample evidentiary support for such finding, his decree must be affirmed on appeal. Blakeney v. Blakeney, 244 So. 2d 3, 1971 Miss. LEXIS 1309 (Miss. 1971).

Unilateral mistakes due to negligence of complainant in grossly overestimating number of feet of timber on land, did not entitle it to rescission of timber deed, where the real facts could have been ascertained by reasonable diligence and means of information were open to both parties and contract was not unconscionable. Terre Haute Cooperage v. Branscome, 203 Miss. 493, 35 So. 2d 537, 1948 Miss. LEXIS 297 (Miss. 1948).

Failure to support in accordance with a promise in a deed is not sufficient ground for cancellation of the deed. Wilson v. Combs, 203 Miss. 286, 33 So. 2d 830, 1948 Miss. LEXIS 266 (Miss. 1948).

Deed will not be set aside because grantor did not understand it, in absence of timely application. Wynn v. Kendall, 122 Miss. 809, 85 So. 85, 1920 Miss. LEXIS 477 (Miss. 1920).

The court has jurisdiction of a joint suit by a large number of persons who were fraudulently induced to execute separate promissory notes to the same payee, the facts in respect to each of them being the same, to enjoin the assignment of the notes, and have them surrendered and cancelled. Hightower & Crawford v. Mobile, J. & K. C. R. Co., 83 Miss. 708, 36 So. 82, 1903 Miss. LEXIS 92 (Miss. 1903).

31. —Recoupment.

Recoupment is of common law origin. It is a purely defensive claim and cannot be used by defendant offensively. Jurisdiction of courts of equity to make complete adjustment necessary to ends of justice is not affected by statute allowing set-off and recoupment nor repeal thereof; where complainant is a nonresident recoupment may be used both defensively and offensively. Sterling Products Co. v. Watkins-Gray Lumber Co., 131 Miss. 145, 95 So. 313, 1922 Miss. LEXIS 282 (Miss. 1922).

32. —Reformation.

The chancery court has jurisdiction of a suit to reform a contract for mutual mistake of the parties. Poole v. McCarty, 233 Miss. 724, 103 So. 2d 922, 1958 Miss. LEXIS 433 (Miss. 1958).

Court will reform mineral deed to include an eight acre tract where evidence discloses the eight-acres were omitted therefrom by mutual mistake of the parties. Adams v. Hill, 208 Miss. 341, 44 So. 2d 457, 1950 Miss. LEXIS 253 (Miss. 1950).

Chancery court has jurisdiction to reform deed and adjust equities between parties. Eichelberger v. Cooper, 101 Miss. 253, 57 So. 808, 1911 Miss. LEXIS 132 (Miss. 1911).

The court will not reform a contract where the parties did what they intended at the time, informed as they were. Wise v. Brooks, 69 Miss. 891, 13 So. 836, 1892 Miss. LEXIS 44 (Miss. 1892).

Where, through ignorance, a county treasurer is not required to give an additional bond as security for school funds, but gives only a general bond, the same being intended, however, by all parties, including the sureties, as security for all moneys to be received by the officer, the chancery court has jurisdiction of a bill to have the bond reformed so as to hold the securities liable for the proper disbursement of the school funds. Hall v. State, 69 Miss. 529, 13 So. 38, 1891 Miss. LEXIS 124 (Miss. 1891).

33. Specific performance.

Defendants’ unconditional offer to sell, by warranty deed, their rights to certain land for $30,000 cash was an offer of a cash sale as distinguished from sale on credit, and plaintiff’s statement, contained in his acceptance, that he would deliver a cashier’s check upon execution of the deed was not a counteroffer, and the chancellor erred in refusing specific performance. Hutton v. Hutton, 239 Miss. 217, 119 So. 2d 369, 1960 Miss. LEXIS 280 (Miss.), cert. denied, 364 U.S. 834, 81 S. Ct. 67, 5 L. Ed. 2d 60, 1960 U.S. LEXIS 583 (U.S. 1960).

As a general rule, to be subject to specific performance a contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties have met and mutually agreed as to all its details upon the offer made on one hand and accepted on the other, but if any of these requisites are lacking, specific performance will not be decreed by a court of equity. Hutton v. Hutton, 239 Miss. 217, 119 So. 2d 369, 1960 Miss. LEXIS 280 (Miss.), cert. denied, 364 U.S. 834, 81 S. Ct. 67, 5 L. Ed. 2d 60, 1960 U.S. LEXIS 583 (U.S. 1960).

Specific performance of contracts in equity is not a matter of right, but of sound legal discretion, and it will never be decreed unless the contract is just and fair in all its parts. Everett v. Hubbard, 199 Miss. 857, 25 So. 2d 768, 1946 Miss. LEXIS 254 (Miss. 1946).

Bill for specific performance of contract made by undisclosed agent must aver the facts of agency, authority of the agent to make the contract, and that it was made for the principal or ratified by him. Young v. Clark, 135 Miss. 683, 100 So. 180, 1924 Miss. LEXIS 52 (Miss. 1924).

Specific performance of contract for sale of land will not be decreed unless the contract is specific in its terms and shows with certainty that the parties mutually agreed upon all the details. Fowler v. Nunnery, 126 Miss. 510, 89 So. 156, 1921 Miss. LEXIS 60 (Miss. 1921).

Equity will not specifically enforce contract obligating railroad to perfectly drain a farm through which its line extends and provide crossings as there is an adequate remedy at law. Yazoo & M. V. R. Co. v. Payne, 93 Miss. 50, 46 So. 405, 1908 Miss. LEXIS 79 (Miss. 1908).

The court has jurisdiction of a bill for the specific performance of a contract for the lease of trees on a homestead acquired under the United States Homestead laws, such leases not being prohibited either expressly or by fair implication by any statute, decision of the federal courts, or rules of any department or officer of the government. Orrell v. Bay Mfg. Co., 83 Miss. 800, 36 So. 561, 1903 Miss. LEXIS 98 (Miss. 1903), writ of error dismissed, 198 U.S. 581, 25 S. Ct. 804, 49 L. Ed. 1172, 1905 U.S. LEXIS 946 (U.S. 1905).

34. —Interpleader.

Sheriff can maintain interpleader to settle conflicting claims of parties to money realized under execution. Kelly v. Howard, 98 Miss. 543, 54 So. 10, 1910 Miss. LEXIS 93 (Miss. 1910).

35. —Bill of revivor.

Bill of revivor must be against personal representatives of deceased defendant. Carter v. Kimbrough, 122 Miss. 543, 84 So. 251, 1920 Miss. LEXIS 453 (Miss. 1920).

36. Relief from judgments.

The court has jurisdiction to grant new trials at law after the adjournment of the law court on newly discovered evidence. Tatum v. Tate, 77 Miss. 684, 27 So. 647, 1900 Miss. LEXIS 30 (Miss. 1900).

The court has jurisdiction of relief against a judgment obtained without notice, but instead of granting a new trial at law will take full cognizance of the case and do justice between the parties. Newman v. Taylor, 69 Miss. 670, 13 So. 831, 1892 Miss. LEXIS 41 (Miss. 1892).

37. Appeal; bill of review.

After term court of equity cannot set aside decree when matter completely disposed of. Correction can be made only on appeal or in proper case by bill of review. Carter v. Kimbrough, 122 Miss. 543, 84 So. 251, 1920 Miss. LEXIS 453 (Miss. 1920); Shirley v. Conway, 44 Miss. 434, 1870 Miss. LEXIS 132 (Miss. 1870); Lane & Standley v. W. J. Wheless & Co., 46 Miss. 666, 1872 Miss. LEXIS 35 (Miss. 1872).

Where the court has taken jurisdiction of a proceeding to compel an agent to account for misappropriated funds, its decree will not be disturbed on appeal on the ground that the complainant had a complete remedy at law. Const. 1890 § 147. Decell v. Hazlehurst Oil Mill & Fertilizer Co., 83 Miss. 346, 35 So. 761, 1903 Miss. LEXIS 50 (Miss. 1903).

The court has jurisdiction of a bill of review based on newly discovered evidence, though the decree has been appealed from and affirmed. Hall v. Waddill, 78 Miss. 16, 27 So. 936, 1900 Miss. LEXIS 71 (Miss. 1900).

The court or the chancellor in vacation has jurisdiction to grant an appeal from an interlocutory order discharging a receiver. Pearson v. Kendrick, 74 Miss. 235, 21 So. 37, 1896 Miss. LEXIS 147 (Miss. 1896).

If the court errs in holding that a cause is of equity jurisdiction, its decree because of the mandate of § 147 of the Constitution cannot be reversed on that ground. Barrett v. Carter, 69 Miss. 593, 13 So. 625, 1891 Miss. LEXIS 137 (Miss. 1891).

II. Divorce and Alimony.

38. Jurisdiction in general.

Separate maintenance was related to the transaction forming the basis of a former husband’s complaint for divorce as he conceded that he sought a divorce in Florida in order to avoid or cease his separate maintenance obligation in Mississippi; in his Florida complaint, the husband asserted that no alimony was sought. To the contrary, the Mississippi separate maintenance orders showed a basis for a possible award of alimony, and the former wife’s motion to enforce the Mississippi orders did not waive personal jurisdiction for alimony purposes. Because the Florida court did not obtain personal jurisdiction over the former wife, and its judgment was not res judicata over her claim for alimony, the issue of alimony was properly before a chancery court in Mississippi. Lofton v. Lofton, 924 So. 2d 596, 2006 Miss. App. LEXIS 168 (Miss. Ct. App. 2006).

Bill to set aside decree of divorce granted in another state on the ground of fraud and praying for decree that complainant and defendant are husband and wife under the law of Mississippi, is beyond the power of the chancery court to grant, since the decree, if granted, would be merely advisory, there being no affirmative or executory relief prayed for. Cliburn v. Cliburn, 209 Miss. 631, 48 So. 2d 126, 1950 Miss. LEXIS 424 (Miss. 1950).

Party who appears after judgment and moves to discharge judgment on ground of insufficient process or notice submits himself to jurisdiction of court, and court, in discharging judgment previously taken, should render proper judgment against him. Hawkins v. Hawkins, 208 Miss. 686, 45 So. 2d 271, 1950 Miss. LEXIS 286 (Miss. 1950).

When husband has submitted himself to general jurisdiction of chancery court by filing bill of review praying for review of decree in favor of wife on ground that court was without jurisdiction to award custody of child, alimony, attorney’s fees and lien upon process by publication, wife’s motion for rehearing on whole case should be sustained to extent of granting her rehearing upon such portions of her original bill as court has under its jurisdiction in view of husband’s entry of appearance. Hawkins v. Hawkins, 208 Miss. 686, 45 So. 2d 271, 1950 Miss. LEXIS 286 (Miss. 1950).

Decree in separate maintenance suit is conclusive as res judicata in subsequent divorce suit, so far as concerns any issue which was litigated between parties in separate maintenance suit, and if issue was decided in favor of wife in that suit, it bars husband in any subsequent divorce suit brought by him predicated on facts which were in existence at time of maintenance decree and which were put in issue and decided in favor of wife therein. Van Norman v. Van Norman, 205 Miss. 114, 38 So. 2d 452, 1949 Miss. LEXIS 416 (Miss. 1949).

A court of equity has inherent power to declare a decree for alimony a specific lien upon the real estate of the husband to enforce the payment of alimony to the wife. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

The chancery court has inherent power where, in its judgment, it is deemed necessary for the enforcement of its orders to remand a defendant to the custody of the sheriff until he has executed the bond for the payment of alimony required of him by decree of the court. Felder v. Felder's Estate, 195 Miss. 326, 13 So. 2d 823, 1943 Miss. LEXIS 127 (Miss. 1943).

While the general rule is that in order for a decree or judgment awarding the custody of children to be valid, the child or children must be within the territorial jurisdiction of the court, their removal from the jurisdiction prior to decree after the court has once acquired jurisdiction of such children does not deprive the court of jurisdiction to fix their custody. Cole v. Cole, 194 Miss. 292, 12 So. 2d 425, 1943 Miss. LEXIS 71 (Miss. 1943).

The chancery court has jurisdiction of a bill by a wife driven from her home to vacate a conveyance by her husband of the homestead and subject it to alimony. Scott v. Scott, 73 Miss. 575, 19 So. 589, 1895 Miss. LEXIS 172 (Miss. 1895).

39. Annulment.

At common law, equity court had jurisdiction to annual marriage where party thereto did not have sufficient capacity to comprehend meaning of marriage and duties of such relation; and statute providing for insanity at the time of marriage as a cause for absolute divorce did not abrogate the power of the chancery court to annul a marriage on the ground of insanity brought for that purpose on behalf of the insane spouse. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

40. Separate maintenance.

Grant of a wife’s petition for separate maintenance was upheld because the chancery court did not manifestly err in finding that the wife, although admittedly partly to blame for the couple’s separation, did not substantially contribute to the separation; considering each party’s financial state and additional factors, the chancery court did not abuse its discretion in awarding $1,200 per month to the wife, even though this award was in excess of the husband’s income after expenses. Tackett v. Tackett, 967 So. 2d 1264, 2007 Miss. App. LEXIS 746 (Miss. Ct. App. 2007).

The jurisdiction of the chancery court to make an allowance to a wife living apart from her husband for her separate maintenance is to be exercised according to equitable principles, and the amount to be allowed in any case must be determined according to the facts disclosed by the record in the particular case, and is largely within the discretion of the trial judge. Gardiner v. Gardiner, 230 Miss. 778, 90 So. 2d 668, 93 So. 2d 638, 1957 Miss. LEXIS 421, 1957 Miss. LEXIS 422 (Miss. 1957).

Separate maintenance of $250 per month for wife and her two children did not compel correction where husband was worth between $15,000 and $18,000 with a net annual income of from $5,000 to $6,000, especially since it remained subject to the court’s revision. Hall v. Hall, 199 Miss. 478, 24 So. 2d 347, 1946 Miss. LEXIS 218 (Miss. 1946).

Suits for separate maintenance, wherein there is no prayer by bill or cross-bill for divorce, are not based upon statute (Code 1942, § 2743) providing for allowances under divorce decrees, or any other statute, but are lodged in the equity jurisdiction of the chancery courts and are regulated by equitable principles independently of, and apart from, statutes of divorce. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

Wife will be denied decree of separate maintenance where she has left or abandoned her husband and remains away without just cause. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161, 1945 Miss. LEXIS 202 (Miss.), modified, 198 Miss. 334, 23 So. 2d 303, 1945 Miss. LEXIS 203 (Miss. 1945).

III. Matters Testamentary and of Administration.

41. Jurisdiction in general.

Equity will not exercise jurisdiction merely to interpret will, without request for further relief. Kendrick v. Kendrick, 135 Miss. 428, 100 So. 181, 1924 Miss. LEXIS 86 (Miss. 1924).

Chancery court has jurisdiction to determine all matters relating to administration of estates, and is always open for hearing petitions by interested parties for the construction of last wills of decedents. Owens v. Waddell, 87 Miss. 310, 39 So. 459, 1905 Miss. LEXIS 111 (Miss. 1905).

42. Powers and authority of court.

Duties and powers of administrator are fixed by law and cannot be enlarged by the chancery court. Alexander v. Herring, 99 Miss. 427, 55 So. 360, 1910 Miss. LEXIS 34 (Miss. 1910).

Chancery court cannot authorize administrator to engage in business with estate funds. Alexander v. Herring, 99 Miss. 427, 55 So. 360, 1910 Miss. LEXIS 34 (Miss. 1910).

43. Jurisdiction in particular matters.

Title vests in ward where guardian, though owner of land, under mistake holds it for ward for the statutory period; equity does not relieve where party mistakes law as to his private legal rights. Smith v. Muse, 138 Miss. 518, 103 So. 356, 1925 Miss. LEXIS 75 (Miss. 1925).

Suit on bond of executor appointed in Tennessee, in the name of the state of Tennessee, to compel payment of money to persons in this state to be administered in accordance with the laws of Tennessee was maintainable in Mississippi. Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, 1910 Miss. LEXIS 132 (Miss. 1910).

Distributee of an estate can recover personal estate of decedent in chancery but not at law if there are no valid debts outstanding and no administration or final settlement of administration. Jones v. R. L. Clemmer & Son, 98 Miss. 508, 54 So. 4, 1910 Miss. LEXIS 90 (Miss. 1910).

Courts of Mississippi have jurisdiction of a suit by creditors on an executrix bond for concealing assets, where executrix resided here at decedent’s death, administration was undertaken in this state, the assets had their situs here, and her surety resides here. Myers v. Martinez, 95 Miss. 104, 48 So. 291, 1909 Miss. LEXIS 206 (Miss. 1909).

The court has jurisdiction of a suit by legatees upon a cause of action specifically bequeathed to them if there be no executor of the will and the estate of the testator owe no debts. Patton v. Pinkston, 86 Miss. 651, 38 So. 500, 1905 Miss. LEXIS 53 (Miss. 1905).

IV. Minor’s Business.

44. Jurisdiction in general.

Decree in proceeding to remove disabilities of minority is valid though failing to recite jurisdictional facts when allegations of petition show basis of jurisdiction of court to act, as petition is part of record of the proceeding. Dyer v. Russell, 204 Miss. 719, 38 So. 2d 104, 1948 Miss. LEXIS 400 (Miss. 1948).

Question of whether chancery court has full or general jurisdiction of proceedings to remove disabilities of minority under § 159(f), Constitution of 1890, because chancery court was invested with jurisdiction for removal of disabilities of minority when Constitution became effective will not be passed on by Supreme Court when another decisive question will dispose of case. Dyer v. Russell, 204 Miss. 719, 38 So. 2d 104, 1948 Miss. LEXIS 400 (Miss. 1948).

The court exercises a general jurisdiction conferred by the Constitution in minor’s business, just as in matters of general equity, and its records need not show the facts authorizing the exercise of such jurisdiction in a particular case. Ames v. Williams, 72 Miss. 760, 17 So. 762, 1895 Miss. LEXIS 28 (Miss. 1895).

45. Jurisdiction in particular matters.

Chancery court, in proceeding to remove disabilities of minority, acts as court of special and limited jurisdiction, and all jurisdictional facts must appeal of record. Dyer v. Russell, 204 Miss. 719, 38 So. 2d 104, 1948 Miss. LEXIS 400 (Miss. 1948).

The court has jurisdiction of a bill filed by one within two years after the removal of his disability of infancy to review the proceedings and decree in a partition suit under which land had been sold and the purchase money paid in good faith more than two years prior to filing such bill, notwithstanding the limitation of two years fixed by § 2693 Code 1880 (Code 1906 § 3122). Martin v. Gilleyler, 70 Miss. 324, 12 So. 254 (Miss. 1892).

The jurisdiction of the chancery court extends to the allowance of an attorney’s fees out of an infant’s estate for services rendered in the recovery of the estate. Epperson v. Nugent, 57 Miss. 45, 1879 Miss. LEXIS 11 (Miss. 1879).

A court of chancery has jurisdiction to decree an account for profits of land against a disseizor, where some of the complainants are infants. Carmichael v. Hunter, 5 Miss. 308, 1840 Miss. LEXIS 14 (Miss. 1840); Wathen v. Glass, 54 Miss. 382, 1877 Miss. LEXIS 16 (Miss. 1877).

V. Idiocy, Lunacy, and Persons of Unsound Mind.

46. Jurisdiction in general.

Chancery court has full jurisdiction over persons of unsound mind. Mabry v. Hoye, 124 Miss. 144, 87 So. 4, 1920 Miss. LEXIS 536 (Miss. 1920).

47. Jurisdiction in particular matters.

Chancery court has jurisdiction of suit to cancel settlement between two persons, both of whom claim all of a decedent’s estate, on ground that one party was incompetent mentally to agree to it and that it was improvident and fraudulent, and it is unimportant that plaintiff described himself as co-administrator rather than next friend of incompetent, since the court looks to substance and not to the form of pleading. McCullum v. Gavin, 206 Miss. 151, 39 So. 2d 859, 1949 Miss. LEXIS 249 (Miss. 1949).

Court cannot reject and exercise jurisdiction at same time, and it is improper for court to dismiss suit to cancel settlement on ground it is without jurisdiction to hear petition in which plaintiff describes himself as co-administrator when in fact plaintiff was suing as next friend and at same time uphold agreement sought to be cancelled. McCullum v. Gavin, 206 Miss. 151, 39 So. 2d 859, 1949 Miss. LEXIS 249 (Miss. 1949).

Chancery court held to have jurisdiction to annul marriage of person where, at time of marriage, he was permanently insane. Parkinson v. Mills, 172 Miss. 784, 159 So. 651, 1935 Miss. LEXIS 128 (Miss. 1935).

Chancery court may not inquire into sanity of one under an indictment for murder. Hawie v. Hawie, 128 Miss. 473, 91 So. 131, 1922 Miss. LEXIS 133 (Miss. 1922).

Guardian of an insane widow may renounce will for her and exercise right of redemption given by Code 1906 § 5086. Hardy v. Richards, 98 Miss. 625, 54 So. 76, 1910 Miss. LEXIS 101 (Miss. 1910).

Renunciation of will by guardian of insane widow may be by ex parte proceedings and need not be by a bill in chancery. Hardy v. Richards, 98 Miss. 625, 54 So. 76, 1910 Miss. LEXIS 101 (Miss. 1910).

Where a conveyance of the homestead was executed by the husband when he was non compos as to all duties to his wife, and in fraud of her rights, a court of equity has jurisdiction to enjoin proceedings in ejectment by the grantee against her and to cancel the deed as a fraud on her rights in the homestead. Moseley v. Larson, 86 Miss. 288, 38 So. 234, 1905 Miss. LEXIS 18 (Miss. 1905).

Chancery court can decree an account for profits of land against a disseizor where complainants are non compos mentis. Robinson v. Burritt, 66 Miss. 356, 6 So. 206, 1889 Miss. LEXIS 105 (Miss. 1889).

VI. Cases Transferred from Circuit Court, or Remanded by Supreme Court.

48. In general.

The Supreme Court’s remand of a child support case to the chancery court “for such further proceedings and judgments as may be required and as may be consistent with this opinion” did not restrict the chancery court to consideration of the issues litigated in the original proceeding. Harrell v. Duncan, 593 So. 2d 1, 1991 Miss. LEXIS 979 (Miss. 1991).

Where a suit was brought in the circuit court, but prior to the conclusion of the trial, the plaintiff made a motion to transfer the case to chancery court, and where 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).

Circuit court and chancery court to which suit was transferred were courts of competent jurisdiction to adjudicate litigation against Federal Housing Authority under Contract Settlement Act of 1944, 41 USCA, §§ 101 et seq., and Government Corporation Control Act of 1945, 31 USCA, § 846; and Federal Public Housing Authority is suable in Mississippi courts. Walsh Const. Co. v. Davis, 204 Miss. 509, 37 So. 2d 757, 1948 Miss. LEXIS 385 (Miss. 1948).

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).

Section 157 of the Constitution, providing that causes brought in circuit court of which chancery court has exclusive jurisdiction shall be transferred to the chancery court, is mandatory and applies to appeals from county court. W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So. 2d 582, 1945 Miss. LEXIS 173 (Miss. 1945).

Decree of chancery court not reversed solely for reason that cause in which it was rendered is properly cognizable in law court only. Yazoo Delta Mortg. Co. v. Hutson, 140 Miss. 461, 106 So. 5, 1925 Miss. LEXIS 280 (Miss. 1925).

It is error to sustain demurrer after cause transferred to chancery court solely because plaintiff’s right is at law or because equitable action is not strictly presented. Stark v. Fulton, 136 Miss. 637, 101 So. 857, 1924 Miss. LEXIS 188 (Miss. 1924).

Court will not take jurisdiction where the matters in controversy are actually pending in the circuit court. Ricks v. Richardson, 70 Miss. 424, 11 So. 935, 1892 Miss. LEXIS 81 (Miss. 1892).

VII. Other Cases Provided by Law.

49. Jurisdiction in general.

County youth court did not err in transferring what was a child custody case to the county chancery court, as the mother’s allegation that her 10-month-old child was in need of supervision was insufficient to show the child was in need of supervision under the relevant statute, Miss. Code Ann. §43-21-105(k), which required a child in need of supervision to have at least reached his seventh birthday; since there were also no allegations of abuse or neglect of the child, the case was a child custody case that fell under the jurisdiction of the county chancery court. In re L.D.M, 910 So. 2d 522, 2005 Miss. LEXIS 94 (Miss. 2005).

While partnership assets may be tangible property, the partnership interest being litigated upon dissolution of the partnership constitutes intangible personal property and, therefore, an action to dissolve a partnership is an action over personal property; thus, a chancery court may properly hear a case for the dissolution and accounting of a partnership. Crowe v. Smith, 603 So. 2d 301, 1992 Miss. LEXIS 327 (Miss. 1992).

If any aspect of a case is within its subject matter jurisdiction, the chancery court has authority to hear and adjudge any non-chancery pure law claims via pendent jurisdiction. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

Landowners, joining in equity suit to abate common nuisance and for damages, have right to have their controversy adjudicated in court of competent jurisdiction, and chancery court in which suit was brought has jurisdiction to proceed, after settlement of suit on abatement of nuisance issue, to full and complete determination of all remaining issues, even though they may cover only legal rights and require granting of none but legal remedies. McClendon v. Mississippi State Highway Com., 205 Miss. 71, 38 So. 2d 325, 1949 Miss. LEXIS 413 (Miss. 1949).

Const. of 1890 § 162, providing that all causes that may be brought in chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court, is mandatory. Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

Const. of 1890 § 147 does not apply where court below declines jurisdiction. It applies only where trial court erroneously assumes jurisdiction. Mitchell v. Bank of Indianola, 98 Miss. 658, 54 So. 87, 1910 Miss. LEXIS 107 (Miss. 1910).

By virtue of § 160 of the Constitution, the chancery court has jurisdiction as to cases within paragraph “f” of § 159 of the Constitution to try legal as well as equitable titles. Woods v. Riley, 72 Miss. 73, 18 So. 384, 1894 Miss. LEXIS 143 (Miss. 1894).

Equity may afford auxiliary aid where a law court first acquires jurisdiction; it may afford complete relief where it first acquires jurisdiction, though the titles and rights involved are of a legal, as distinguished from an equitable, character. Woods v. Riley, 72 Miss. 73, 18 So. 384, 1894 Miss. LEXIS 143 (Miss. 1894).

Section 160 of the Constitution reversed the former relations of the courts in which the circuit court possessed general jurisdiction and was the repository of the power to administer legal remedies, and the chancery court had jurisdiction of certain designated matters and where there was not a full, adquate and complete remedy at law. Now by § 156 of the Constitution the circuit court has original jurisdiction “in all matters, civil and criminal, in this state not vested by this Constitution in some other court.” Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

The legislature may confer on the chancery court jurisdiction of legal matters in aid of its authority over the principal matter of equitable negligence. Buie v. Pollock, 55 Miss. 309, 1877 Miss. LEXIS 137 (Miss. 1877).

As a matter of necessity, in order to ascertain the boundaries of the jurisdiction of the courts, reference must be had to the system of jurisprudence prevalent at the time the Constitution was adopted, and to the legislation of the state with a view to which the framers of the Constitution must be understood to have acted. Servis v. Beatty, 32 Miss. 52, 1856 Miss. LEXIS 146 (Miss. 1856).

50. Accounting.

Equity may compel accounting of the perquisites and emoluments of the sheriff’s office in suit of a rightful claimant, although incidentally determination of the title to the office may be necessary. Baker v. Nichols, 111 Miss. 673, 72 So. 1, 1916 Miss. LEXIS 366 (Miss. 1916).

51. Assignment.

Court has no jurisdiction under Code 1892 § 117 (Code 1906 § 120), except where assignment for creditors is general. Lowenstein v. Hooker, 71 Miss. 102, 14 So. 531, 1893 Miss. LEXIS 192 (Miss. 1893).

52. Attachment.

Code of 1906 § 536 giving chancery court jurisdiction of attachments does not violate Const. 1890 § 159 ¶f. Dinwiddie v. Glass, 111 Miss. 449, 71 So. 745, 1916 Miss. LEXIS 319 (Miss. 1916).

53. Creditors’ bills to set aside fraudulent conveyances.

The court can exercise jurisdiction, as provided by § 503 Code 1892 (Code 1906 § 553), to set aside conveyances of other devices made to defraud creditors only in behalf of creditors whose debts are due when the bill is filed. Browne v. Hernsheim, 71 Miss. 574, 14 So. 36, 1893 Miss. LEXIS 120 (Miss. 1893).

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).

Such jurisdiction is not affected by § 31 of the Constitution declaring that the right of trial by jury shall remain inviolate. McBride v. Adams, 70 Miss. 716, 12 So. 699 (Miss. 1893).

54. Land titles.

Original jurisdiction to make conclusive and final adjudication of title to land rests alone with circuit and chancery courts, and to a limited extent with the county courts. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Supreme Court, circuit courts, chancery courts and county courts, when acting on appeal from a special possessory court of a justice or justices of peace, have only such jurisdiction to adjudicate regarding title to land as is vested in special court from which appeal was taken. McCoy v. McRae, 204 Miss. 309, 37 So. 2d 353, 1948 Miss. LEXIS 368 (Miss. 1948).

Const. 1890 § 159 par. f and § 160 confer on chancery court jurisdiction to try legal as well as equitable titles. Keystone Lumber Yard v. Yazoo & M. V. R. Co., 96 Miss. 116, 50 So. 445, 1909 Miss. LEXIS 11 (Miss. 1909).

The court has no jurisdiction to reform a tax collector’s deed. Boone v. Dulion, 80 Miss. 584, 32 So. 1, 1902 Miss. LEXIS 283 (Miss. 1902).

55. Liens.

Where debt to bank was assumed by grantees in deed to husband and wife, court held it was only equitable and just that the one-half interest of husband in property be charged with an equitable lien to secure one-half of the amount assumed. Prater v. Prater, 208 Miss. 59, 44 So. 2d 538, 1950 Miss. LEXIS 229 (Miss. 1950).

Assignee of note and deed of trust covering machinery and equipment in manufacturing plant who files suit in chancery court for foreclosure of deed of trust, for appointment of receivor, for adjudication of priorities of liens and moves to abate prior action filed by mechanic to enforce his lien, must abide by equities of case resulting from fact that mechanic’s lien had been created in favor of mechanic without notice of existence of prior executed note containing agreement to subsequently give deed of trust on same property to which mechanic’s lien attached. Buckwalter v. McElroy, 205 Miss. 54, 38 So. 2d 317, 1949 Miss. LEXIS 411 (Miss. 1949).

But the equity of an accounting is sufficient as basis for the jurisdiction of a chancery court in cases of mechanics’ and materialmen’s liens. W. M. Carter Lumber Co. v. Deopp, 110 Miss. 591, 70 So. 701, 1915 Miss. LEXIS 84 (Miss. 1915).

56. Mutual accounts.

The court has no jurisdiction under § 161 of the Constitution of 1890 conferring upon it concurrent jurisdiction with the circuit court of “suits involving inquiry into matters of mutual accounts” of an account containing items of debit and credit and items in favor of defendant, being mere payments, where it did not appear that he had an independent account against the complainant. George D. Barnard & Co. v. Sykes, 72 Miss. 297, 18 So. 450, 1894 Miss. LEXIS 147 (Miss. 1894).

57. Official and fiduciary bonds.

Chancery court had jurisdiction under § 161 of the Constitution of 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. Moreover, additional basis for chancery jurisdiction, even apart from this constitutional section, existed in prayer for discovery as to the loss, expenses and outlays incurred by rendition of the unauthorized services to the some fourteen named citizens of the county. Shumpert v. Lee County, 197 Miss. 513, 20 So. 2d 82, 1944 Miss. LEXIS 316 (Miss. 1944).

Chancery court has jurisdiction of suit on bond of secretary and treasurer of board of levee commissioners. Adams v. Williams, 97 Miss. 113, 52 So. 865, 1910 Miss. LEXIS 283 (Miss. 1910).

Section 161 of the Const. of 1890, conferring jurisdiction upon the chancery court of suits on “bonds of fiduciaries” embraces only technical trusts, where bond is required by law. George D. Barnard & Co. v. Sykes, 72 Miss. 297, 18 So. 450, 1894 Miss. LEXIS 147 (Miss. 1894).

Section 161 Const. 1890, giving concurrent jurisdiction “of suits on bonds of public officers for failure to account for money, or property received or wasted, or lost by neglect” does not give the chancery court jurisdiction of a suit on the bond of a sheriff for damages because of an excessive attachment of personal property, a part of which is destroyed in his custody. Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, 1893 Miss. LEXIS 47 (Miss. 1893).

58. Personal decrees.

The court has no jurisdiction in a foreign attachment under §§ 486-487 Code 1892 (§§ 536, 537 Code 1906), to render a personal decree against the non-resident defendant. Rothrock Const. Co. v. Port Gibson Mfg. Co., 80 Miss. 517, 32 So. 116, 1902 Miss. LEXIS 298 (Miss. 1902).

Section 592 Code 1892 (Code 1906 § 643), authorizing personal decrees for balance, after sale of mortgaged property, and § 147 Const. 1890, prohibiting reversals from certain errors of jurisdiction by analogy support such right to adjudicate. Atkinson v. Felder, 78 Miss. 83, 29 So. 767, 1900 Miss. LEXIS 175 (Miss. 1900).

59. Receivers.

Neither the court nor chancellor in vacation has jurisdiction to appoint a receiver until the bill is filed and the cause is pending. 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).

All distinction between equity and common law jurisdiction, after it has been entertained, being swept away by § 147 of the Constitution, where an independent creditor’s bill for the preservation of the assets taken control of by the chancery court under such void appointment has been filed, a decree in such suit appointing a new receiver, even if erroneous, is not assailable collaterally as being void for want of jurisdiction. Section 160 of the Constitution dispensing with the necessity for first exhausting legal remedies, is also invoked by the court in this case. Whitney v. Hanover Nat'l Bank, 71 Miss. 1009, 15 So. 33, 1894 Miss. LEXIS 4 (Miss. 1894).

Such proceeding is not protected by § 147 of the Const., 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 court has no jurisdiction to 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).

60. Penalties.

Laws 1910 ch. 134 giving chancery court concurrent jurisdiction of suits for penalties for violation thereof does not violate Const. 1890 § 159. State ex rel. Attorney Gen. v. Marshall, 100 Miss. 626, 56 So. 792, 1911 Miss. LEXIS 64 (Miss. 1911).

The court is without jurisdiction ordinarily to enforce penalties. Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

Under our Constitution the legislature cannot confer jurisdiction upon chancery courts of bills for the mere purpose of recovering penalties. Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

61. Miscellaneous.

Where suit, brought in the chancery court for an injunction to abate a nuisance, failed on an injunction issue, the chancellor erred in not deciding the issue of damages. Shaw v. Owen, 229 Miss. 126, 90 So. 2d 179, 1956 Miss. LEXIS 593 (Miss. 1956).

Suit for damages over laying of sidewalk due to change of grading is not within Const. 1890 § 161. Murphy v. Meridian, 103 Miss. 110, 60 So. 48, 1912 Miss. LEXIS 143 (Miss. 1912).

Sec. 4286 Code 1892 (Code 1906 § 4838), authorizing the railroad commission to apply to the circuit or chancery court for aid in enforcing obedience to their process, orders, decisions, and determinations, does not affect their jurisdiction, but merely directs resort to them according to their established jurisdiction. Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

A chancery court has no jurisdiction to assess and collect the taxes authorized under the act of March 17, 1871, creating levee board No. 1, but it may enforce the trust created by it in favor of the bond-holders-creditors of the board. Woodruff v. State, 77 Miss. 68, 25 So. 483, 1899 Miss. LEXIS 48 (Miss. 1899).

The court has jurisdiction, pending an appeal from a decree against one seeking a cancellation of his adversary’s title, of a bill filed by him for an injunction against cutting and removing trees, the defendant being insolvent and the timber constituting its chief value. The jurisdiction is auxiliary or ancillary within § 160 of the Constitution to that conferred by § 1833 Code 1880 (§ 500 Code 1892; § 550 Code 1906), in conjunction with paragraph “f” of § 159 of the Constitution. Woods v. Riley, 72 Miss. 73, 18 So. 384, 1894 Miss. LEXIS 143 (Miss. 1894).

In appointing guardians the court exercises general, and not limited and inferior, jurisdiction, and its decree appointing a clerk cannot be collaterally attacked. Ames v. Williams, 72 Miss. 760, 17 So. 762, 1895 Miss. LEXIS 28 (Miss. 1895).

OPINIONS OF THE ATTORNEY GENERAL

The County Attorney has no obligation to represent a petitioner in a commitment proceeding in chancery court. Grant, Dec. 5, 1997, A.G. Op. #97-0758.

RESEARCH REFERENCES

ALR.

Availability of equitable remedy of accounting between principal and agent. 3 A.L.R.2d 1310.

Injunction by state court against action in court of another state. 6 A.L.R.2d 896.

Remedies during promisor’s lifetime on contract to convey or will property at death in consideration of support or services. 7 A.L.R.2d 1166.

Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence, or incompetency. 7 A.L.R.2d 1317.

Specific performance or injunctive relief against breach of contract, other than lease or agreement therefor, or contract for services, terminable by one party but not the other. 8 A.L.R.2d 1208.

Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance. 11 A.L.R.2d 390.

Punitive damages: power of equity court to award. 58 A.L.R.4th 844.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 4 et seq.

CJS.

30A C.J.S., Equity §§ 9 et seq.

Cross References —

Registering claims against estates, see §9-5-173.

Docketing estate matters, see §9-5-203.

Limitation of express trusts in equity matters, see §15-1-39.

Proceedings in escheat matters, see §89-11-11.

Administration of estates of decedents, generally, see §§91-7-1 et seq.

Guardianships, generally, see §§93-13-1 et seq.

JUDICIAL DECISIONS

1. Validity.

2. Construction and application generally.

3. Jurisdiction in particular matters.

4. Suits by or against estate.

5. Suits on bond.

6. Parties.

7. Venue.

1. Validity.

The statute is constitutional. Bank of Mississippi v. Duncan, 52 Miss. 740, 1876 Miss. LEXIS 287 (Miss. 1876); Brunini v. Pera, 54 Miss. 649, 1877 Miss. LEXIS 69 (Miss. 1877).

2. Construction and application generally.

This section [Code 1942 § 1263] is full, specific and definite, and authorizes the court at which letters of administration or of guardianship have been granted, to hear and determine all questions in relation to the execution of the trust of the executor, administrator, guardian or other officer appointed for the administration and management of all the estate, and all demands against it by heirs at law, distributees, devisees, legatees, wards, creditors or others. Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595, 1939 Miss. LEXIS 38 (Miss. 1939).

The statute contemplates that the chancery court in which the guardianship is being administered shall draw to itself the decision and control of all litigations affecting the guardianship, between the wards and the guardian, or between third persons and the guardian, or against the ward though the guardian. Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595, 1939 Miss. LEXIS 38 (Miss. 1939).

The chancellor, in the administration of estates and guardianships, may supervise and inquire into the management; he need not personally conduct the inquiry or consult witnesses and prepare the papers necessary to such supervision, but may appoint such assistants as may be required for the proper development and conduct of such cases, under his supervision; and the chancery court has full jurisdiction of proceedings against administrators, executors or guardians and sureties on their bonds to enforce claims or other liabilities against them, in his own court. Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595, 1939 Miss. LEXIS 38 (Miss. 1939).

Chancery court has full jurisdiction of proceedings against administrators and surety, to enforce claim allowed against estate. Lawson v. Dean, 144 Miss. 309, 109 So. 801, 1926 Miss. LEXIS 361 (Miss. 1926).

The statute applies in favor of distributees, even after a formal settlement by the administrator. Brunini v. Pera, 54 Miss. 649, 1877 Miss. LEXIS 69 (Miss. 1877).

3. Jurisdiction in particular matters.

Beneficiaries’ complaint focused on the administration of the trust, and they had labeled their claims as negligence, breach of contract, breach of fiduciary duty, and gross negligence; however, the bank’s actions or inactions that were at issue arose solely from its capacity as trustee and any duty it might have had arose from its appointment as trustee, such that because the action sought to interpret the trustee’s obligations under the terms of the trust, the trust was under the exclusive jurisdiction of the Warren County Chancery Court and had been since its inception. Trustmark Nat'l Bank v. Johnson, 865 So. 2d 1148, 2004 Miss. LEXIS 185 (Miss. 2004).

The chancery court had jurisdiction of an executor’s action for construction of a will, a determination of the identity of the legatees, and a direction as to the distribution of the residual estate. Cain v. Dunn, 241 So. 2d 650, 1970 Miss. LEXIS 1351 (Miss. 1970).

Where a will was admitted to probate in the county where the testatrix had had her residence and citizenship, and where the executor of the will was appointed and qualified, the chancery court thereof had jurisdiction and venue of an action to construe the will even though it involved title to real property located in another county. Hutton v. Hutton, 233 Miss. 458, 102 So. 2d 424, 1958 Miss. LEXIS 404 (Miss. 1958).

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).

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).

Chancery court having jurisdiction of testamentary trust funds, bank acting as trustee and executor, and of the plaintiff has full jurisdiction to determine issues in respect to alleged improper handling of the trust funds. Garrett v. First Nat'l Bank & Trust Co., 153 F.2d 289, 1946 U.S. App. LEXIS 1914 (5th Cir. Miss. 1946).

Court of chancery has inherent power to remove a trustee for good cause, such power being incidental to the court’s paramount duty to see that trusts are properly executed. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

Will vesting right in trustees to determine when the trust is to be closed does not put arbitrary power in their hands, but, at most, only the authority for exercise of sound discretion, and bill in equity seeking review of such discretion may be maintained. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

While chancery court will not substitute its judgment for that of a trustee, it will, whenever the circumstances require, review the exercise of discretion given to a trustee to decide whether it is reasonable or unreasonable. Yeates v. Box, 198 Miss. 602, 22 So. 2d 411, 1945 Miss. LEXIS 232 (Miss. 1945).

Chancery courts may remove trustee irrespective of his domicile. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

Supreme Court will not interfere with removal of trustee by the chancery court for misconduct unless it be palpably unjust. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

The chancery court in which a will is probated has jurisdiction to decree the sale of lands, at the suit of the legatee, though the land lie and all defendants reside out of the county. Turner v. Turner, 57 Miss. 775, 1880 Miss. LEXIS 58 (Miss. 1880).

The chancery court in which a guardian is subsequently appointed has jurisdiction to ascertain proper compensation to those entitled thereto from the ward’s estate. Epperson v. Nugent, 57 Miss. 45, 1879 Miss. LEXIS 11 (Miss. 1879).

4. Suits by or against estate.

No suit can be maintained under this statute without application having been presented to the court in which the guardianship is pending, setting up some reasonable necessity for the bringing of such suit. Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595, 1939 Miss. LEXIS 38 (Miss. 1939).

The statute does not authorize a suit by an administrator against a person who bid off the same for the price of goods sold by the administrator under decree directing the sale to be for cash. Pate v. Taylor, 66 Miss. 97, 5 So. 515, 1888 Miss. LEXIS 67 (Miss. 1888).

Ex contractu creditors may sue in chancery without judgments. Hunt v. Potter, 58 Miss. 96, 1880 Miss. LEXIS 101 (Miss. 1880); Brasfield v. French, 59 Miss. 632, 1882 Miss. LEXIS 176 (Miss. 1882).

The statute enables a judgment-creditor of an estate to sue in equity. Whitfield & Billups v. Evans, 56 Miss. 488, 1879 Miss. LEXIS 150 (Miss. 1879); Clopton v. Haughton, 57 Miss. 787, 1880 Miss. LEXIS 61 (Miss. 1880).

5. Suits on bond.

Executors de son tort of a deceased surety on the bond of an administrator may be sued in equity with the principal thereon. Buie v. Pollock, 55 Miss. 309, 1877 Miss. LEXIS 137 (Miss. 1877).

6. Parties.

A chancellor is justified in dismissing a petition filed by life tenants under a testamentary trust for its modification where process has not been served on the remaindermen. Reedy v. Johnson's Estate, 200 Miss. 205, 26 So. 2d 685, 1946 Miss. LEXIS 284 (Miss. 1946).

Judgment creditors of the heirs of an intestate were proper parties to a proceeding involving the final account of the administrator. Stone v. Townsend, 190 Miss. 547, 1 So. 2d 237, 1941 Miss. LEXIS 81 (Miss. 1941).

7. Venue.

Where a will was admitted to probate in the county where the testatrix had had her residence and citizenship, and where the executor of the will was appointed and qualified, the chancery court thereof had jurisdiction and venue of an action to construe the will even though it involved title to real property located in another county. Hutton v. Hutton, 233 Miss. 458, 102 So. 2d 424, 1958 Miss. LEXIS 404 (Miss. 1958).

Chancery Court of county in which nonexempt land of decedent is located does not have jurisdicition 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).

Where testator bequeathed $1,000 to his brother and directed that if any part thereof remained unused by him at his death, it should become the property of testator’s nephew, and testator’s brother died within a month of the testator, the chancery court administering the estate of the testator and not the chancery court administering the estate of testator’s brother was the proper court to decide to whom the legacy belonged. Rose v. Bennett, 193 Miss. 878, 11 So. 2d 307, 1943 Miss. LEXIS 10 (Miss. 1943).

Under this section [Code 1942 § 1263] jurisdiction of all demands by creditors or others against an estate of a decedent is vested in the chancery court of the county in which letters of administration were granted, even though there are other defendants to the suit, some of whom may reside or be found in county other than that in which the letters of administration were granted. State ex rel. Gully v. Massachusetts Bonding & Ins. Co., 187 Miss. 66, 191 So. 285, 1939 Miss. LEXIS 79 (Miss. 1939).

An action to recover on a public official’s bond against the principal’s executrix and surety was properly dismissed for want of jurisdiction in the chancery court, where the action was brought in the county in which the surety could be served with process instead of the county in which letters of administration had been granted. State ex rel. Gully v. Massachusetts Bonding & Ins. Co., 187 Miss. 66, 191 So. 285, 1939 Miss. LEXIS 79 (Miss. 1939).

RESEARCH REFERENCES

ALR.

Revocation or withdrawal of election to take under or against will. 71 A.L.R.2d 942.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

Am. Jur.

27A Am. Jur. 2d, Equity §§ 4, 37, 52.

CJS.

30A C.J.S., Equity §§ 33-71.

Cross References —

Power of courts to punish contempt, see §9-1-17.

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

Disobedience of final order entered in consumer protection proceeding constituting contempt, see §75-24-17.

RESEARCH REFERENCES

ALR.

Intoxication of witness or attorney as contempt of court. 46 A.L.R.4th 238.

Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous. 12 A.L.R.2d 1059.

Am. Jur.

17 Am. Jur. 2d, Contempt §§ 23, 37 et seq.

CJS.

17 C.J.S., Contempt §§ 65, 70, 76, 77 et seq.

Amendment Notes —

The 2009 amendment added the second paragraph.

Cross References —

Punishment for violation of injunction against nuisances, see §95-3-19.

Court’s authority in proper cases to adjudge party in contempt, see Miss. R. Civ. P. 70.

JUDICIAL DECISIONS

1. In general.

2. Matters within power to punish for contempt.

3. Contempt proceedings.

4. —Evidence.

5. —Judgment or decree.

6. Appeal.

1. In general.

Contempt findings were reversed, based on lack of jurisdiction over various named defendants, where there was failure to properly issue service of process, which is required before named person becomes party to motion; knowledge by way of media is not sufficient to bring person before court. Mississippi Asso. of Educators v. Trustees of Jackson Municipal Separate School Dist., 510 So. 2d 123, 1987 Miss. LEXIS 2439 (Miss. 1987).

Criminal contempt is punishment for a past offense, is quasi criminal, and a defendant is presumed innocent until proved guilty beyond a reasonable doubt, and the essence of the offense is that a defendant wilfully, maliciously, and contumaciously has refused to comply with the decree of court. Langford v. Langford, 253 Miss. 483, 176 So. 2d 266, 1965 Miss. LEXIS 1006 (Miss. 1965).

A statute empowering the court to punish any person for breach of any decree or order of the court, by fine or imprisonment, or both, provides for criminal contempt, while a statute providing that if any person refused to obey or perform any order or judgment of the court, the court shall have power to fine and imprison him until the order or judgment is complied with, provides for civil or quasi criminal contempt; the order for imprisonment in the former case is for a past and completed act or omission, is punitory and must be suffered, and its purpose is to preserve the power and vindicate the dignity of the court; in the latter case the punishment is coercive and the contemnor may discharge himself by compliance with the terms of the decree violated, and its purpose is to compel obedience to its decrees. Evans v. Evans, 193 Miss. 468, 9 So. 2d 641, 1942 Miss. LEXIS 116 (Miss. 1942).

2. Matters within power to punish for contempt.

Contemnor failed to comply with divorce decree, and a chancellor did not commit manifest error or abuse the chancery court’s discretion by incarcerating the contemnor, as the chancellor’s decision was supported by the record, which included the chancellor’s findings that the contemnor was not credible; further, the divorce decree was not ambiguous, so the contemnor’s argument that the contemnor could not obey because of the decree’s alleged vagueness was rejected. Stribling v. Stribling, 960 So. 2d 556, 2007 Miss. App. LEXIS 1 (Miss. Ct. App. 2007).

Individual held in prison for civil contempt was improperly held without being afforded opportunity to prove present inability to pay. While defendant may avoid judgment of contempt by establishing that he is without present ability to discharge obligation, he has burden of proving his inability to pay, and such showing must be made with particularity and not in general terms. Where contemnor is unable to pay, even if that present inability is due to his misconduct, imprisonment cannot accomplish purpose of civil contempt decree, which is to compel obedience. Jones v. Hargrove, 516 So. 2d 1354, 1987 Miss. LEXIS 2950 (Miss. 1987).

The chancery court does not have the power to punish for an injunction prohibiting gambling operations under Code 1942 § 2562, which covers penalty where none fixed elsewhere by statute, but under this section. Alexander v. State, 210 Miss. 517, 49 So. 2d 890, 1951 Miss. LEXIS 290 (Miss. 1951).

Statute (Code 1942 § 2646), providing that any place where liquors are found, kept or possessed shall be deemed to be a common nuisance and may be abated by writ of injunction issued out of a court of equity upon a bill filed in the name of the state, may appropriately be taken in connection with this section, [Code 1942 § 1278] which is declaratory of the power of the chancery court or chancellor in vacation to punish any person for violation of an injunction as for a contempt. Murphy v. State, 202 Miss. 890, 32 So. 2d 875, 1947 Miss. LEXIS 352 (Miss. 1947).

The power to punish for contempt in vacation hereunder is not confined to injunction cases but expressly includes “any other order, decree or process of the court,” and, therefore, includes the enforcement of an alimony decree in vacation. Johnson v. Johnson, 189 Miss. 561, 198 So. 308, 1940 Miss. LEXIS 145 (Miss. 1940).

Husband wilfully and deliberately ignoring orders of the court to pay alimony was properly sentenced to confinement until alimony was paid. Millis v. State, 106 Miss. 131, 63 So. 344, 1913 Miss. LEXIS 115 (Miss. 1913).

A restraining order is foreign to the practice in this state and such an order without bond is a nullity; Wherefore defendant charged with violating a restraining order issued upon an amended bill can only be adjudged guilty of violating such void order, and their guilt cannot be predicated on a violation of an injunction issued upon the original bill. Castleman v. State, 94 Miss. 609, 47 So. 647, 1909 Miss. LEXIS 317 (Miss. 1909).

3. Contempt proceedings.

Trial court did not have sufficient facts before it to properly issue contempt order where Supreme Court’s review of record revealed no clear and explicit evidence that order placing defendants in contempt of court was well taken, and judgment of conviction did not contain material facts known to court constituting contempt. Mississippi Asso. of Educators v. Trustees of Jackson Municipal Separate School Dist., 510 So. 2d 123, 1987 Miss. LEXIS 2439 (Miss. 1987).

In determining whether a person cited for contempt has the right to a jury trial, which determination must be based on whether the contempt is to be treated as a serious or a petty offense, the court must look to the maximum sentence which could be imposed under the statute if a maximum penalty has been set, and if no maximum penalty has been set, the court should look to the penalty actually imposed as the best evidence of the seriousness of the offense. McGowan v. State, 258 So. 2d 801, 1972 Miss. LEXIS 1516 (Miss.), cert. denied, 409 U.S. 1006, 93 S. Ct. 430, 34 L. Ed. 2d 298, 1972 U.S. LEXIS 632 (U.S. 1972).

A defendant who, in a trial without a jury was found guilty of contempt for violating an injunction prohibiting him from conducting the unlawful business of keeping and selling intoxicating liquor on certain premises, and was sentenced to 5 months imprisonment and a fine of $750, was not entitled to a jury trial, but was entitled to have his fine reduced to $500. McGowan v. State, 258 So. 2d 801, 1972 Miss. LEXIS 1516 (Miss.), cert. denied, 409 U.S. 1006, 93 S. Ct. 430, 34 L. Ed. 2d 298, 1972 U.S. LEXIS 632 (U.S. 1972).

Since the chancellor had power both in vacation and term time to hear and determine a petition alleging that the appellant was in contempt of the court’s injunction, the chancellor did not divest himself of the power to hear the matter in vacation by a citation requiring appellant to execute a bond, where neither the citation nor the bond required appellant to appear at the next term of court, but required his appearance on the vacation date named in the order for citation, and it further appeared that the appellant never executed the bond in question. Livaudais v. Mississippi E. R. Co., 228 Miss. 576, 89 So. 2d 588, 1956 Miss. LEXIS 548 (Miss. 1956).

Chancery court has authority to hear and determine petitions for contempt in vacation. Gordon v. Gordon, 196 Miss. 476, 17 So. 2d 191, 1944 Miss. LEXIS 217 (Miss. 1944).

For a conviction for criminal contempt, not only the procedure, but the proof, must conform to practice in criminal cases. Evans v. Evans, 193 Miss. 468, 9 So. 2d 641, 1942 Miss. LEXIS 116 (Miss. 1942).

Contempt proceedings against executor for failure to pay widow year’s support theretofore allowed her by court were properly held by chancellor in vacation in another county. Prentiss v. Turner, 170 Miss. 496, 155 So. 214, 1934 Miss. LEXIS 158 (Miss. 1934).

4. —Evidence.

In civil contempt cases the weight and sufficiency of the evidence must be clear and convincing, and not beyond a reasonable doubt, as required in criminal cases. Masonite Corp. v. International Woodworkers of America, 206 So. 2d 171, 1967 Miss. LEXIS 1242 (Miss. 1967).

Where evidence is insufficient to show beyond a reasonable doubt that a defendant deliberately and contumaciously intended to defy the power and dignity of the court in failing to comply with the alimony and child support provisions of a divorce decree, his imprisonment for criminal contempt is not justified. Langford v. Langford, 253 Miss. 483, 176 So. 2d 266, 1965 Miss. LEXIS 1006 (Miss. 1965).

Regardless of the rule as to the essentials of a prima facie case in civil contempt, mere proof of failure to pay alimony without more is not sufficient to make a case of proof beyond a reasonable doubt of an intent deliberately and contumaciously to defy the power and dignity of the court justifying imprisonment as for criminal contempt. Evans v. Evans, 193 Miss. 468, 9 So. 2d 641, 1942 Miss. LEXIS 116 (Miss. 1942).

In a proceeding for criminal contempt for failure of a husband, defendant in a divorce suit, to obey a decree ordering the payment of alimony and solicitor’s fees, a prima facie case of “wilful, deliberate and contumacious refusal” was not established, where the only evidence was the testimony of the wife as to the mere fact that the alimony had not been paid. Evans v. Evans, 193 Miss. 468, 9 So. 2d 641, 1942 Miss. LEXIS 116 (Miss. 1942).

Absence of violated writ of injunction, with sheriff’s return, from record in contempt proceeding, held immaterial, where counsel’s agreement disclosed that writ was served on contemner. Hanna v. State, 169 Miss. 314, 153 So. 371, 1934 Miss. LEXIS 57 (Miss. 1934).

Evidence held not sufficient to show contempt for interference with decree awarding custody of minor child. Magee v. State, 99 Miss. 83, 54 So. 802, 1910 Miss. LEXIS 18 (Miss. 1910).

5. —Judgment or decree.

Only judgment or decree chancellor was authorized to render in proceeding for contempt in violating injunction against sale of gasoline without permit and payment of excise tax was one of fine, imprisonment, or both, for contemner’s past conduct. Hanna v. State, 169 Miss. 314, 153 So. 371, 1934 Miss. LEXIS 57 (Miss. 1934).

6. Appeal.

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).

Decree holding one guilty of contempt and providing punishment if he does not comply with the order of the court within a certain time is interlocutory and cannot be appealed from. Nutt v. State, 95 Miss. 422, 49 So. 145, 1909 Miss. LEXIS 259 (Miss. 1909).

RESEARCH REFERENCES

ALR.

Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous. 12 A.L.R.2d 1059.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order. 72 A.L.R.4th 298.

Am. Jur.

42 Am. Jur. 2d, Injunctions §§ 235, 314-318.

Cross References —

Infant, defined, see §1-3-21.

Appointment of receivers of estates of minors and persons of unsound mind, see §11-5-163.

Divorce proceedings for married minor, see §93-5-9.

Appointment of guardian ad litem in divorce proceedings, see §93-5-13.

Court appointment of guardian for minor, see §93-13-13.

Proceedings to remove minority disability, see §93-19-3.

Court appointment of an attorney to serve as guardian, and its costs, see Miss. Rule Civ. Proc., Rule 17.

JUDICIAL DECISIONS

1. In general.

2. Minors.

3. Incompetents.

1. In general.

A guardian ad litem should object to incompetent testimony, and if he fails to do so, the court of its own motion should reject it. Neblett v. Neblett, 70 Miss. 572, 12 So. 598, 1893 Miss. LEXIS 17 (Miss. 1893).

2. Minors.

Because the child’s best interest was the court’s “polestar” consideration in determining child custody, the importance of guardian ad litem appointments in child custody proceedings could not be overemphasized; in a case where a mother sought modification of child custody, and there was an allegation of abuse, it was mandatory that a guardian ad litem be appointed, under Miss. Code Ann. §93-5-23 (Supp. 2002). Robison v. Lanford, 841 So. 2d 1119, 2003 Miss. LEXIS 151 (Miss. 2003).

In an action to construe a will wherein the question was whether the intended devisee was the testatrix’ minor granddaughter, or testatrix’ daughter, the decree of the chancery court was not void as against the minor because no guardian ad litem had been appointed, where the minor and her father, with whom she resided, were made parties to the petition, and were both served with process, and the natural father and mother of the minor were both very active and diligent in behalf of the minor on the trial of the case. Hutton v. Hutton, 233 Miss. 458, 102 So. 2d 424, 1958 Miss. LEXIS 404 (Miss. 1958).

Guardian’s ad litem duty to represent infant throughout litigation; guardian ad litem not qualified to act as commissioner to foreclose vendor’s lien. Belt v. Adams, 124 Miss. 194, 86 So. 584, 1920 Miss. LEXIS 485 (Miss. 1920).

Service of process in another state on minor defendants to a suit in this state, it not being made to appear that there is no father, mother, or guardian in this state upon whom process may be served, does not give jurisdiction as to such minors, or authorize the appointment of a guardian ad litem for them. Erwin v. Carson, 54 Miss. 282, 1876 Miss. LEXIS 31 (Miss. 1876); Frank v. Webb, 67 Miss. 462, 6 So. 620, 1889 Miss. LEXIS 9 (Miss. 1889).

3. Incompetents.

Where a grantee and optionee sued the grantor and trustee in a deed of trust, seeking a declaration as to the mental competency of the grantor and confirmation of title in the grantee, and the grantor had never disclaimed the grantee’s title until this was done by the guardian ad litem, the grantee and the optionee rather than the grantor should be charged with compensation of the guardian ad litem. Austin v. Branch, 221 So. 2d 727, 1969 Miss. LEXIS 1507 (Miss. 1969).

Where a testatrix left all of her property to the use of her incompetent brother during his life, with the remainder to his guardian, and a guardian ad litem, who was appointed by the court to represent the incompetent during the probate proceedings, filed an answer on behalf of his ward, the incompetent was adequately represented at the probate. Darby v. Arrington, 194 Miss. 123, 11 So. 2d 220, 1942 Miss. LEXIS 170 (Miss. 1942).

Where the alleged incompetent owner of realty and his guardian were both made parties to a proceeding to foreclose a trust deed given by the guardian, and the owner appeared in the proceeding to contest confirmation of the sale on the ground of invalidity of the adjudication of insanity and appointment of a guardian because the owner was not served with process, questions as to the regularity and efficacy of the foreclosure proceedings were res judicata, in a subsequent proceeding to remove the cloud from the title (the sale having been confirmed), if the owner was sane, since he was not only properly summoned but appeared and resisted the entry of the final decree on the identical grounds urged in the proceeding to clear the title, and they were also res judicata, even if the owner was insane and the appointment of the guardian was invalid because no process had been served on the owner in the incompetency proceedings, since he was properly sued through the guardian, who was at least invested with the capacities of a guardian ad litem or next friend. Dana v. Zerkowsky, 192 Miss. 302, 5 So. 2d 423, 1942 Miss. LEXIS 4 (Miss. 1942).

RESEARCH REFERENCES

ALR.

Right of child to action against mother for infliction of prenatal injuries. 78 A.L.R.4th 1082.

Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child. 70 A.L.R.5th 461.

Am. Jur.

27A Am. Jur. 2d, Equity § 63.

CJS.

30A C.J.S., Equity § 53.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March 1979.

Editor’s Notes —

A former §9-5-91 [Codes, 1880, § 1952; 1892, §§ 457, 593; 1906, § 506; Hemingway’s 1917, § 262; 1930, § 320; 1942, § 1228; Laws, 1886, p. 145; Laws, 1940, ch. 244; Laws, 1946, ch. 274; Laws, 1966, ch. 336, § 1; Laws, 1972, ch. 446, § 1; Repealed by Laws, 1991, ch. 573, § 141, effective from and after July 1, 1991] authorized a chancellor to exercise the same jurisdiction and perform the same duties in vacation as exercised and performed in term time.

Cross References —

Rules concerning vacation matters, see Miss. Uniform Chancery Court Rules 7.00 et seq.

JUDICIAL DECISIONS

1. In general.

A will contest may not be tried in vacation where there was no precedent order therefor at term or written consent by the parties. Winters v. Carver, 248 Miss. 792, 161 So. 2d 202, 1964 Miss. LEXIS 305 (Miss. 1964).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 22.

CJS.

21 C.J.S., Courts § 156.

Cross References —

Constitutional prohibition of delay in justice, see Miss Const. Art. 3, § 24.

Enlargement of time in which to comply with provisions of the Mississippi Rules of Civil Procedure, see Miss. R. Civ. P. 6.

Overruled demurrers not delaying trials, see Miss. Uniform Chancery Court Rule 2.10.

Rules concerning vacation matters, see Miss. Uniform Chancery Court Rules 7.00 et seq.

JUDICIAL DECISIONS

1. In general.

2. Decree pro confesso.

1. In general.

Where a vendor brought an action to obtain purchasers’ execution of a new note and a deed of trust for a lost one and to obtain a lien for balance of indebtedness then due on land conveyed, this action could have properly been tried by chancellor in term time and the chancellor was without authority to try the case and enter final decree for the vendor in vacation in view of the fact that since the deed of trust had not been recorded, there was no constructive notice to be restored, and restoration of constructive notice was the object of the statute. Hood v. Lamar, 219 Miss. 349, 68 So. 2d 456, 1953 Miss. LEXIS 395 (Miss. 1953).

2. Decree pro confesso.

A decree pro confesso will not be set aside where delay in filing an answer is inexcusable. Davis v. Polk Financial Service, 242 Miss. 419, 135 So. 2d 175, 1961 Miss. LEXIS 578 (Miss. 1961).

As a general rule the motion to set aside a pro confesso decree must set out a meritorius defense and be supported by affidavit. Bates v. McClellan, 212 Miss. 860, 56 So. 2d 52, 1952 Miss. LEXIS 319 (Miss. 1952).

A person who has recovered a pro confesso decree may waive the requirement of a formal motion, affidavit and answer on an application to set aside the decree. Bates v. McClellan, 212 Miss. 860, 56 So. 2d 52, 1952 Miss. LEXIS 319 (Miss. 1952).

Where an application to set aside a pro confesso decree is presented by a short motion spread on the motion docket and by a statement to the court ore tenus by the solicitor for the defendant and the matter proceeds to the final hearing without objection, no question can be successfully raised as to form. Bates v. McClellan, 212 Miss. 860, 56 So. 2d 52, 1952 Miss. LEXIS 319 (Miss. 1952).

On motion to set aside decree pro confesso, affidavit and motion must set out not only that defendant has meritorious defense, but also sufficient details thereof so as to enable judge to determine its meritoriousness vel non. Alexander v. Hyland, 208 Miss. 890, 45 So. 2d 739, 1950 Miss. LEXIS 312 (Miss. 1950).

Motion to set aside decree pro confesso in suit involving title to land to permit defendant to answer and to continue case until next term of court for trial on merits should be sustained when it is shown that defendant has meritorious defense, that failure to file answer was caused by misunderstandings as to time of trial and that valuable witness for defendant, a surveyor, was absent because he had been injured, and there is no showing that any harm will ensue to plaintiff if defendant is granted trial on merits. Alexander v. Hyland, 208 Miss. 890, 45 So. 2d 739, 1950 Miss. LEXIS 312 (Miss. 1950).

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 107-173.

CJS.

30A C.J.S., Equity §§ 139-166.

Cross References —

Powers of circuit judge in vacation, see §11-7-131.

Authority of chancellor in vacation to order executor or administrator to continue business of decedent, see §91-7-173.

Procedure in vacation for executor or administrator to borrow money to pay claims, see §91-7-219.

Rules concerning vacation matters, see Miss. Uniform Chancery Court Rules 7.00 et seq.

JUDICIAL DECISIONS

1. In general.

2. Specific decrees.

1. In general.

Petition for sale of decedent’s lands in W. county to pay debts may be heard by chancellor in S. county within same chancery district. Whitley v. Towle, 163 Miss. 418, 141 So. 571, 1932 Miss. LEXIS 57 (Miss. 1932).

Judicial sale cannot be confirmed in vacation when a bona fide protest is filed. Culley v. Rhodes, 124 Miss. 640, 87 So. 136, 1920 Miss. LEXIS 482 (Miss. 1920).

Chancery court or chancellor in vacation may exact an accounting from guardians or remove them. United States Fidelity & Guaranty Co. v. Jackson, 111 Miss. 752, 72 So. 150, 1916 Miss. LEXIS 384 (Miss. 1916).

Chancellor may approve executor’s final account in vacation. United States Fidelity & Guaranty Co. v. State, 110 Miss. 16, 69 So. 1007, 1915 Miss. LEXIS 20 (Miss. 1915).

2. Specific decrees.

Chancellor had jurisdiction to render decree removing disabilities of minority in vacation, where only living parent appeared and answered petition. Wilkerson v. Swayze, 147 Miss. 141, 113 So. 327, 1927 Miss. LEXIS 347 (Miss. 1927).

Final decrees made in vacation cannot be vacated after adjournment. Ex parte Stanfield, 98 Miss. 214, 53 So. 538, 1910 Miss. LEXIS 54 (Miss. 1910).

Ex parte petition by attorney for decree requiring payment of his fee for services in estate matter cannot be granted in vacation. Murphy v. Harris, 93 Miss. 286, 48 So. 232, 1908 Miss. LEXIS 166 (Miss. 1908).

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 22.

CJS.

21 C.J.S., Courts § 242.

Editor’s Notes —

Former §9-5-99 specified rules governing service of process in matters heard and decided in vacation.

Former §9-5-101 provided for appearances and continuances invacation.

Cross References —

Chancellor’s authority to require additional security in vacation, see §11-1-23.

Appointing or removing receivers in vacation, see §11-5-151.

Discharge of surety from liability on bond, see §91-7-317.

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

Rules concerning vacation matters, see Miss. Uniform Chancery Court Rules 7.00 et seq.

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 127, 128 et seq.

CJS.

21 C.J.S., Courts § 156.

Cross References —

Payment of chancellor’s expenses for drainage district hearings, see §51-29-109.

RESEARCH REFERENCES

Am. Jur.

46 Am. Jur. 2d (Rev), Judges §§ 48- 54.

CJS.

48A C.J.S., Judges §§ 232 et seq.

Editor’s Notes —

Section 48, Chapter 458, Laws, 1986, provided that §9-5-131 would stand repealed from and after October 1, 1989. Subsequently, three 1989 chapters (341, 342, and 343) amended Section 48, Chapter 458, Laws, 1986, by deleting the date for repeal.

Cross References —

Constitutional authority for office of clerk of the chancery court, see Miss. Const. Art. 6, § 168.

Provisions common to court clerks, see §§9-1-27 et seq.

Provision that chancery clerks shall be elected in 1987 and every four years thereafter, see §23-15-193.

Nominations for state, district, county, and county district offices which are elective, see §§23-15-291 et seq.

Officer before whom oath shall be taken, see §25-1-9.

Place of filing oath, see §25-1-11.

Office hours and site of office of chancery court clerk, see §25-1-99.

Same person holding offices of circuit and chancery court clerk, see §25-1-103.

Fees of chancery court clerks, see §§25-7-9,25-7-13.

Duties of chancery clerk with respect to county depositories, see §27-105-315.

Rules concerning chancery clerks, see Miss. Uniform Chancery Court Rules 9.00 et seq.

JUDICIAL DECISIONS

1. In general.

The sureties on the official bond are liable to the heirs for the proceeds of land of a decedent sold by the clerk as commissioner, although a special statutory bond to account therefor had been given before the sale. Johnson v. Bobbitt, 81 Miss. 339, 33 So. 73, 1902 Miss. LEXIS 152 (Miss. 1902).

OPINIONS OF THE ATTORNEY GENERAL

As the position of county administrator and its attendant responsibilities not within the statutory responsibilities of the chancery clerk, such position represents an additional position of responsibility the clerk may, in the mutual discretion of the board of supervisors and the clerk, assume in consideration for additional compensation, and, as such, both the bond required by a chancery clerk and the bond required by a county administrator must be given. Amos, July 2, 1992, A.G. Op. #92-0455.

The provisions of §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, only mandate the use of tax assessment rolls and the avails to be collected from levies thereon in calculating the amount of the bonds therein required. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all assessment rolls upon which a board of supervisors may levy ad valorem taxes. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all ad valorem tax levies listed on the certified levy sheet, including school district levies. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all classes of property upon which ad valorem taxes are levied and collected. Bryant, January 29, 1999, A.G. Op. #99-0011.

In calculating the amount of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, the total amount of ad valorem taxes to be collected, rather than the actual amount collected, must be used. Bryant, January 29, 1999, A.G. Op. #99-0011.

There is no requirement in Section 9-5-131 et seq., which would require a chancery clerk to post foreclosure notices and execute an affidavit stating that the same was posted, nor is there such requirement or authority in Sections 25-7-9, 25-7-11, and 89-1-53 et. seq., however, pursuant to Sections 25-7-33 and 25-7-45, if a clerk chooses to post such notices, he may assess a fee of $ .25 for executing an affidavit stating that the same was posted. Gex, Mar. 14, 2003, A.G. Op. #03-0112.

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 127, 128 et seq.

CJS.

21 C.J.S., Courts §§ 327, 328.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 2-4.

CJS.

21 C.J.S., Courts § 253 et seq.

Cross References —

Provisions common to court clerks, see §§9-1-27 et seq.

JUDICIAL DECISIONS

1. In general.

Acting as guardian of the person or estate of an habitual drunkard is not one of the ex officio duties of a clerk of the chancery court, but devolves upon him when, but not unless, he is appointed as such by a decree of that court, and therefore is not within the ex officio powers vested in a deputy chancery clerk by the statute. O'Bannon v. Henrich, 191 Miss. 815, 4 So. 2d 208, 1941 Miss. LEXIS 176 (Miss. 1941).

Deputy circuit clerk may appoint justice of peace to preside over eminent domain court. 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).

OPINIONS OF THE ATTORNEY GENERAL

Chancery Judge is not authorized to order employees to be provided to Office of Chancery Clerk. O’Neal Sept. 1, 1993, A.G. Op. #93-0605.

A board of supervisors is vested with the power to purchase real estate on which to construct public health buildings and clinics sponsored by the public health units of any county, or a public health building to house the county health department, out of the general fund and, provided that ultimate control and management of the facilities remains in the hands of local government, the operation of the building may be done pursuant to contract. Gex, January 9, 1998, A.G. Op. #97-0801.

There is no statutory authority for a chancery clerk to hire a public information officer. Crook, June 14, 2002, A.G. Op. #02-0304.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 43.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Provisions common to clerks, see §§9-1-27 et seq.

Minutes of all courts of record, see §9-1-33.

Clerk’s custody of exhibits, see §9-13-27.

Duty of clerk to keep minutes for board of supervisors, see §19-3-27.

Crime of alteration of records, see §97-11-1.

Clerk’s duty to keep minute book, see Miss. R. Civ. P. 79.

JUDICIAL DECISIONS

1. In general.

Under Article 6, § 170 of the Mississippi Constitution and §19-17-1, the duties of the clerk of the board of supervisors and the county auditor are just as much a part of the duties of the chancery clerk as attending and keeping the minutes of all chancery court proceedings as is required by §§9-5-135 and9-5-137. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

OPINIONS OF THE ATTORNEY GENERAL

Chancery Judge is not authorized to order employees to be provided to Office of Chancery Clerk. O’Neal Sept. 1, 1993, A.G. Op. #93-0605.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 1, 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Provisions common to clerks, see §§9-1-27 et seq.

Lis pendens record, see §§11-47-1 et seq.

Duty of chancery clerks following creation of municipal corporation, see §21-1-23.

Duty of clerk following enlargement or contraction of corporate limits of municipality, see §§21-1-39,21-1-41.

Duty of court and clerks following abolition of municipal corporation, see §§21-1-53,21-1-55,21-1-57.

Records of motor vehicle ad valorem tax collections, see §27-51-25.

Duty of clerk with respect to land classification report, see §29-3-37.

Duty of clerk with respect to records of veterans, see §35-3-11.

Duty of clerk with regard to commitment proceedings of persons in need of mental treatment, see §§41-21-61 et seq.

Filing to perfect security interest, see §75-2-401.

Recording declaration of trust under investment trust law, see §79-15-19.

Filing certificate of dissolution of credit union, see §81-13-59.

Recording construction liens, see §85-7-133.

Filing instrument concerning the sale of lands, see §89-3-1.

Duty of clerk in recording instruments concerning land, see §89-5-25.

Duty of clerk in filing vouchers for annual accounts by executors and administrators, see §91-7-279.

Appointment of clerk as guardian of minor, see §93-13-21.

JUDICIAL DECISIONS

1. In general.

Former husband was unable to show a violation of U.S. Const. Art. IV, § 1 or Miss. Code Ann. §9-5-137 in a divorce action because the evidence demonstrated that he was served personally, and no hearing was commenced without adequate and timely process. Richardson v. Richardson, 856 So. 2d 426, 2003 Miss. App. LEXIS 259 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 638 (Miss. Nov. 6, 2003).

Under Article 6, § 170 of the Mississippi Constitution and §19-17-1, the duties of the clerk of the board of supervisors and the county auditor are just as much a part of the duties of the chancery clerk as attending and keeping the minutes of all chancery court proceedings as is required by §§9-5-135 and9-5-137. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 20-31.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Duties of clerk of chancery court, see §§9-5-135,9-5-137.

Cross References —

Power of court to determine all matters in estates administered, see §9-5-83.

Appointment of temporary administrator, see §91-7-53.

Grant of administration in decedents’ estates, see §91-7-63.

Grant of administration de bonis non, see §91-7-69.

Grant of letters to county administrator, see §91-7-79.

Appointment of sheriff as administrator, see §91-7-83.

Method for probating claims, see §91-7-149.

Proceedings in insolvent estates, see §91-7-261.

Appointment of guardian, see §§93-13-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Validity of wills.

1. In general.

Where instrument purporting to be a will was admitted to probate by the clerk in vacation, without notice to the objectors, and will contest was filed thereafter but before approval and confirmation of clerk’s acts in question, and admission to probate was thereafter approved and confirmed over objection of contestants, and on subsequent trial of will contest probate of the instrument was offered in evidence but contestant offered no evidence, peremptory instruction in favor of proponent was correct. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

2. Validity of wills.

Attempt to contest will was unseasonable where, while chancery court was in vacation, chancery clerk on January 24, 1983, admitted will and codicils to probate, thereafter issuing Letters Testamentary; on June 13, 1983, chancellor entered order ratifying actions by chancery clerk conducted while court was in vacation; and, action to set aside will alleging mental incompetency when making will was commenced on May 6, 1985. Sims v. Stennis, 510 So. 2d 798 (Miss. 1987).

Probate of will in common form before chancery clerk in vacation is prima facie evidence of validity of will until will is declared invalid and set aside by proper and lawful proceeding in proper court, having jurisdiction of subject matter and of parties in interest. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

In proceeding by residuary legatee to recover his share of estate, introduction in evidence of proceedings before chancery clerk in vacation admitting will to probate in common form makes out prima facie case of validity of will. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Probate of a will in common form before the clerk in vacation should be deemed prima facie evidence of the validity of the will unless and until its invalidity shall have been determined by the court. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Where contest of a will was filed after admission of the will to probate by the clerk in vacation without notice to the objectors but before such admission was approved and confirmed by the court, such contest was not filed “before probate” within the meaning of Code 1942 § 504, so as to preclude introduction in evidence of the probate of the will as prima facie evidence of its validity, in the trial of the will contest. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Entry by the clerk of his order in vacation admitting a will to probate is an adjudication by him that the instrument has been duly proven by the presentation thereof with the affidavits of the subscribing witnesses thereto attached. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

RESEARCH REFERENCES

ALR.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered. 17 A.L.R.3d 603.

What circumstances excuse failure to submit will for probate within time limit set by statute. 17 A.L.R.3d 1361.

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 20-23.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 191 et seq.

CJS.

21 C.J.S., Courts §§ 327-351.

Editor’s Notes —

Former §9-5-143 directed that rules be held in the clerk’s office, specified the purposes for such rules, and when they should be held.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Courts §§ 24, 25.

CJS.

14 C.J.S., Clerks of Courts §§ 236-265.

JUDICIAL DECISIONS

1. In general.

2. Probate of wills.

1. In general.

Whether dismissal of bill on plaintiff’s request during the last 1917 vacation was erroneous was properly presented by exceptions at the January term 1918. Northern v. Scruggs, 118 Miss. 353, 79 So. 227, 1918 Miss. LEXIS 87 (Miss. 1918).

2. Probate of wills.

Where contest of a will was filed after admission of the will to probate by the clerk in vacation without notice to the objectors but before such admission was approved and confirmed by the court, such contest was not filed “before probate” within the meaning of Code 1942, § 504, so as to preclude introduction in evidence of the probate of the will as prima facie evidence of its validity, in the trial of the will contest. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Entry by the clerk of his order in vacation admitting a will to probate is an adjudication by him that the instrument has been duly proven by the presentation thereof with the affidavits of the subscribing witnesses thereto attached. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Probate of a will in common form before the clerk in vacation should be deemed prima facie evidence of the validity of the will unless and until its invalidity shall have been determined by the court. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Where instrument purporting to be a will was admitted to probate by the clerk in vacation, without notice to the objectors, and will contest was filed thereafter but before approval and confirmation of clerk’s acts in question, and admission to probate was thereafter approved and confirmed over objection of contestants, and on subsequent trial of will contest probate of the instrument was offered in evidence but contestant offered no evidence, peremptory instruction in favor of proponent was correct. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

As respects liability of chancery clerk for failure to attach to claim against estate certificate that claim was probated, allowed, and registered, probating, allowing, and registering of claims against estate are not “judicial acts.” Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

Whenever claim against estate of decedent, to which affidavit in compliance with statute is attached, is presented to clerk for probate, clerk has mandatory duty to admit claim to probate by attaching his certificate thereto. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

Bill against chancery clerk and his surety for failure to attach to claim against estate clerk’s certificate setting forth that claim was probated, allowed, and registered, because of which failure claim was disallowed, held not demurrable because not alleging that administrator possessed assets with which to pay claim if it had been properly probated, since claimant would at least be entitled to nominal damages. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 20-28.

CJS.

14 C.J.S., Clerks of Courts §§ 236-265.

Editor’s Notes —

Former §9-5-149 directed that the clerk keep minutes of proceedings before the clerk and specified the manner of taking and recording the minutes.

JUDICIAL DECISIONS

1. In general.

Attempt to contest will was unseasonable where, while chancery court was in vacation, chancery clerk on January 24, 1983, admitted will and codicils to probate, thereafter issuing Letters Testamentary; on June 13, 1983, chancellor entered order ratifying actions by chancery clerk conducted while court was in vacation; and action to set aside will alleging mental incompetency when making will was commenced on May 6, 1985. Sims v. Stennis, 510 So. 2d 798 (Miss. 1987).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court §§ 20-29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Rules concerning vacation matters, see Miss. Uniform Chancery Court Rules 7.00 et seq.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds §§ 4-22.

CJS.

11 C.J.S., Bonds §§ 7-30.

Cross References —

Register of sureties on bonds to be kept by circuit clerks, see §9-7-137.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. 2d, Bonds §§ 1 et seq.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Final judgment rendered in Supreme Court, see §11-3-41.

Form of judgment roll, see §11-7-189.

Effect of enrollment of judgment, see §11-7-197.

Decree rendered in estate of intestate, see §91-1-31.

RESEARCH REFERENCES

Am. Jur.

27A Am. Jur. 2d, Equity §§ 155 et seq.

Cross References —

Final record in suit affecting real estate in circuit court, see §9-7-127.

Filing of papers relating to any cause, see §11-1-5.

Final judgment rendered in Supreme Court, see §11-3-41.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Authority to purchase photorecording equipment for chancery clerks, see §19-15-5.

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

Rule requiring that all papers be kept in proper files, see Miss. Uniform Chancery Court Rule 9.02.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Duties of board of supervisors as to indexing and filing of chancery causes finally disposed of, see §19-15-7.

Removal of case files from the clerk’s office, see Miss. R. Civ. P. 79.

JUDICIAL DECISIONS

1. In general.

The approval of sufficiency of an appeal bond is not the equivalent of the filing of the bond, when the provisions of this section [Code 1942 § 1238] have not been complied with. Wood v. Warren, 193 So. 2d 123, 1966 Miss. LEXIS 1274 (Miss. 1966).

Suit in chancery begun when bill filed with clerk. Williams v. New York Life Ins. Co., 132 Miss. 345, 96 So. 97, 1923 Miss. LEXIS 32 (Miss. 1923).

A paper is not filed in the legal sense, notwithstanding it may be marked “filed,” until it has been delivered to the proper official with the purpose that the usual steps be taken in reference thereto. 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 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).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

Cross References —

Summons by publication, see §§13-3-27,13-3-31, and13-3-32.

Publication of notice to creditors of estates of decedent, see §§91-7-49,91-7-145,91-7-147.

JUDICIAL DECISIONS

1. In general.

That notice was given taxpayers that rolls were open to objections could not be shown by copies of newspaper filed in chancery clerk’s office. Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716, 1928 Miss. LEXIS 61 (Miss. 1928).

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Amendment Notes —

The 2019 amendment added the exception at the beginning; substituted “inquiring” for “enquiring”; inserted “or her” and “or she”; and made a minor stylistic change.

JUDICIAL DECISIONS

1. In general.

In view of public policy to encourage small holdings in fee, equality among heirs, activity of sales, and freedom of transfers, and the fact that the statutes provide for recording of instruments affecting title to land, and charge the public with notice of such instruments and their contents, the law should be liberalized as to the right of inspection of records and making copies thereof. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 1941 Miss. LEXIS 68 (Miss. 1941).

The right to make copies of public records is restricted as to time to “all reasonable hours on business days,” and as to methods, so as not to interfere unduly with the use of the records by the public, or with the clerk in the discharge of his duties, or materially to lessen the compensation of the clerk. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 1941 Miss. LEXIS 68 (Miss. 1941).

The word “copy” in the statute includes photographic copies. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 1941 Miss. LEXIS 68 (Miss. 1941).

A Mississippi corporation, chartered to own, use, make and keep a full set of abstract books and records, by which to make and compile abstracts of title and ownership maps covering the real estate in the state, and in connection therewith, to make copies of public records by all means and devices, had the right to examine and make photostatic copies of the records of Coahoma County, although such corporation had no special existing or prospective interest in any lands in such county nor present employment to examine and copy the records. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 1941 Miss. LEXIS 68 (Miss. 1941).

RESEARCH REFERENCES

Am. Jur.

1 Am. Jur. 2d, Abstracts of Title §§ 3, 4.

CJS.

1 C.J.S., Abstracts of Title §§ 6, 7.

Amendment Notes —

The 2006 amendment rewrote the section to provide that records retention and destruction standards apply to all counties regardless of election.

Cross References —

Authority of Supreme Court clerk to destroy old records on appeal, see §9-3-25.

Provision for formulation of records control schedules for courts and requirement that director of department of archives and history be consulted prior to destruction of records, see §25-59-17.

OPINIONS OF THE ATTORNEY GENERAL

Jackson County Adult Detention Center inmate requests for sick call are not on list of enumerated records in this section and may be legally destroyed when they are no longer of benefit to the agency. Evans, April 29, 1997, A.G. Op. #97-0100.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Jurisdiction of court to determine all matters in estates administered, see §9-5-83.

Duty of clerk to docket matters testamentary, see §9-5-203.

Limitation of time for filing claims against estate of deceased person, see §§91-7-151,91-7-153.

Method of probating claims, see §91-7-149.

Examination and adjudication of claims, see §91-7-269.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 535 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 611-628.

CJS.

33 C.J.S., Executors and Administrators §§ 540-556, 558-563, 565-587.

Cross References —

Alternate manner of keeping docket, see §9-5-215.

Form of lis pendens docket, see §11-47-15.

Chancery clerk maintaining a general docket for the Chancery Court, see Miss. R. Civ. P. 79.

Setting of causes for trial, see Miss. Uniform Chancery Court Rule 3.01.

Clerk’s duty to maintain the general docket, see Miss. Uniform Chancery Court Rule 9.01.

Clerk’s duty to securely maintain all disputed documents, see Miss. Uniform Chancery Court Rule 9.04.

Cross References —

Jurisdiction of chancery court to determine all matters in estates administered, see §9-5-83.

Index and filing of all estate matters finally disposed of, see §19-15-7.

Duty of clerk to list defaulting executors, administrators, and guardians, see §91-7-283.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Cross References —

Alternate manner of keeping docket, see §9-5-215.

Precedence on docket of suits to compel public access to public records, see §25-61-13.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

Editor’s Notes —

Former §9-5-207 directed the clerk to enter causes on the issue docket in the order in which they are numbered, without the need of a request of any party.

Former §9-5-209 authorized the court to cause to be entered in the issue docket any cause which the clerk omitted to enter.

Former §9-5-211 directed that the issue docket be called for trial as in the circuit court.

Cross References —

Rules relative to motion day and to books and records kept by clerk, see Miss. R. Civ. P. 78 and Miss. R. Civ. P. 79, respectively.

RESEARCH REFERENCES

Am. Jur.

15A Am. Jur. 2d, Clerks of Court § 29.

CJS.

21 C.J.S., Courts §§ 327-351.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts § 25.

CJS.

21 C.J.S., Courts § 248.

Cross References —

Execution docket of circuit court, see §9-7-181.

Execution docket kept by sheriff, see §19-25-61.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts, § 25.

CJS.

21 C.J.S., Courts, § 248.

Editor’s Notes —

Former §9-5-241 authorized the appointment of masters of the chancery court.

Former §9-5-243 specified the powers of the masters.

Former §9-5-245 granted masters the power to subpoena witness.

Former §9-5-247 authorized the chancellor to direct an accounting in any cause, and specified the manner in which a master could express doubts concerning the accounting.

Former §9-5-249 authorized masters to charge a fee for providing copies of reports or other papers.

Former §9-5-251 authorized the appointment of special commissioners.

Former §9-5-253 authorized the court to require bonds of masters or special commissioners.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Chapter 564, Laws of 1994.

Laws of 1999, ch. 432, § 1, provides:

“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.”

By letter dated May 28, 1999, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965 to the changes made by Chapter 432, Laws of 1999. For a complete list of sections affected by Chapter 432, Laws of 1999, see the Statutory Tables Volume, Table B, Allocation of Acts.

Amendment Notes —

The 2003 amendment inserted “at a minimum of Two Hundred Fifty Dollars ($250.00) or an amount set by the court” following “reasonable attorney’s fees” in (3).

Cross References —

Qualifications of chancery and circuit court judges, see Miss. Const. Art. 6, § 154 and Code §9-1-23.

Department of Human Services generally, see §43-1-1 et seq.

Temporary Assistance to Needy Families (TANF) program, see §§43-17-1 et seq.

Mississippi Uniform Law on Paternity, see §§93-9-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A county court judge may be appointed as a family master and receive additional compensation from the county beyond the compensation that is received for being a county court judge. Griffith, Dec. 6, 2002, A.G. Op. #02-0689.

The Chief Justice can execute a Memorandum of Understanding on behalf of all appointed family masters allowing the Child Support Maximization Project to use the monies paid to the family masters by the counties as a source for federal matching funds. Lackey, Nov. 15, 2004, A.G. Op. 04-0554.

Senate Bill 2339 of 2005 [Chapter 501, Laws of 2005] does not, by its express terms, amend, modify or repeal Sections 9-5-255 and 41-21-61 (a). Miller, Aug. 2, 2005, A.G. Op. 05-0206.

RESEARCH REFERENCES

ALR.

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.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 37.

Laws 2002, ch. 713 (Senate Concurrent Resolution No. 543), provides in pertinent part:

“BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI, That the following amendment to the Mississippi Constitution of 1890 is proposed to the qualified electors of the state:

“Amend Section 153, Mississippi Constitution of 1890, to read as follows:

“‘Section 153. The judges of the circuit and chancery courts shall be elected by the people in a manner and at a time to be provided by the Legislature. The judges elected for a term of office beginning from and after January 1, 2003, shall hold their office for a term of six (6) years.’

“BE IT FURTHER RESOLVED, That this proposed amendment shall be submitted by the Secretary of State to the qualified electors at an election to be held on the first Tuesday after the first Monday of November 2002, as provided by Section 273 of the Constitution and by general law.

“BE IT FURTHER RESOLVED, That the explanation of this proposed amendment for the ballot shall read as follows: ‘This proposed constitutional amendment increases the terms of office of circuit and chancery court judges from four to six years beginning January 1, 2003.’

“BE IT FURTHER RESOLVED, That the Attorney General of the State of Mississippi shall submit this resolution, immediately upon adoption by the Legislature, to the Attorney General of the United States or to the United States District Court for the District of Columbia, in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.”

Laws of 2015, ch. 476, § 63, provides in part:

“SECTION 63. (1) The Standing Joint Legislative Committee on Reapportionment is directed to provide the counties census block equivalency files and maps necessary to assist the counties in identifying the boundaries of any subdistricts within a chancery or circuit court district.

“(2)(a) The Split Precinct Block List developed in conjunction with House Bill No. 703, 2015 Regular Session [Chapter 476, Laws of 2015], that details the portions of the partial or split precincts that are contained within a judicial subdistrict by census block number as that list is utilized to detail partial or split precincts for judicial subdistricts in this act is hereby incorporated into and shall be construed to be an integral part of this act. A partial or split precinct contained in this act is identified by an asterisk (*) following its designation within any judicial subdistrict. The Standing Joint Legislative Committee on Reapportionment shall file the Split Precinct Block List with the Secretary of State.

“(3)(a) This act shall be liberally construed to effectuate the purposes hereof and to redistrict the trial courts of this state in compliance with constitutional requirements.

“(b) It is intended that this act and the districts and subdistricts described herein completely encompass all the area within the state and all the voters in this state. It is also intended that no district shall include any of the area included within the description of any other district, and that no subdistrict shall include any of the area included within the description of any other subdistrict.

“(c)(i) If the districts or subdistricts described in this act do not carry out the purposes hereof because of: omissions; duplication; overlapping areas; erroneous nomenclature; lack of adequate maps or descriptions of political subdivisions, wards or other divisions thereof, or of their boundary lines; then the Secretary of State, at the joint request of the Lieutenant Governor and the Speaker of the House, by order, shall correct any omissions, overlaps, erroneous nomenclature or other defects in the description of the districts and subdistricts so as to accomplish the purposes and objectives of this act.

“(ii) In promulgating any order under this subsection (3), the Secretary of State, in addition to insuring that all areas of the state are completely and accurately encompassed in the districts and subdistricts, shall be guided by the following standards:

“1. Gaps in the description of any district or subdistrict shall be completed in a manner that results in a total description of the district or subdistrict that is consonant with the description of adjacent districts or subdistricts and results in complete contiguity of districts and subdistricts;

“2. In any allocation of area or correction of descriptions made pursuant to this subsection, the Secretary of State shall, consistent with the foregoing standards, preserve the contiguity and compactness of districts and subdistricts and avoid the unnecessary division of political subdivisions.

“(d) A copy of any order issued under this subsection shall be filed by the Secretary of State in his own office and in the offices of the affected commissioners of election and registrars. The Secretary of State may adopt reasonable rules regulating the procedure for applications for orders under this act and the manner of serving and filing any notice or copy of orders. Upon the filing of an order, the description of any affected district or subdistrict shall be deemed to have been corrected to the full extent as if the correction had been contained in the original description set forth in this act.

“(e) The redistricting contained in this act supersedes any prior redistricting.”

Laws of 2015, ch. 476, § 63, was enacted with a subdivision (2)(a) but no (2)(b).

Chapter 476, Laws of 2015 amended a number of sections in Chapters 5 and 7 of Title 9. For a complete list of Code sections affected by Chapter 476, Laws of 2015, see Table B, Allocation of Acts, in the Statutory Tables Volume.

Amendment Notes —

The 2002 amendment added “provided, however, that the terms of all circuit judges elected at the regular election in November 2002 shall begin on the first day of January 2003, and their terms of office shall continue for six (6) years” at the end of the third sentence.

Cross References —

Constitutional authority for the election and term of office of circuit judges, see Miss. Const. Art. 6, § 153.

Prohibition against judge having interest in cause or being related to parties sitting in cases, see §9-1-11.

Proceedings when judge is disabled or disqualified, see §9-1-11.

Required residence within the district, see §9-1-23.

Prohibition against practice of law, see §9-1-25.

Civil practice and procedure provisions common to courts, see §11-1-1 et seq.

Civil practice and procedure in circuit courts generally, see §11-7-1 et seq.

Provisions for filling vacancies in the office of circuit judge, see §23-15-849.

Violation of gambling laws by judge, see §97-33-3.

Criminal procedure generally, see §99-1-1 et seq.

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

Rules governing practice and procedure in circuit courts, see Miss. Uniform Rules of Circuit and County Court Practice 1.01 et seq.

JUDICIAL DECISIONS

1. In general.

State judicial elections come within coverage of “results test” provisions of § 2 of Voting Rights Act of 1965 (42 USCS § 1973), as amended in 1982; if term “representatives” limited coverage with respect to judicial elections, limitation would exclude all claims involving judicial elections; better reading of term describes winners of representative, popular elections. Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 115 L. Ed. 2d 348, 1991 U.S. LEXIS 3627 (U.S. 1991).

The record need not show that the “public interest” required the interchange. Fletcher v. State, 60 Miss. 675, 1882 Miss. LEXIS 112 (Miss. 1882).

RESEARCH REFERENCES

ALR.

Power of successor judge taking office during termtime to vacate, etc., judgment entered by his predecessor. 11 A.L.R.2d 1117.

Power of court to impose standard of personal appearance or attire. 73 A.L.R.3d 353.

Am. Jur.

46 Am. Jur. 2d (Rev), Judges §§ 5- 19.

CJS.

48A C.J.S., Judges §§ 20-79, 81-122, 124-135.

Law Reviews.

Case, In search of an independent judiciary: alternatives to judicial elections in Mississippi. 13 Miss. C. L. Rev. 1, Fall, 1992.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 38.

The effective date of Chapter 361, Laws of 2013, which amended this section, is “from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.” However, after the bill was approved, the United States Supreme Court, in the case of Shelby County v. Holder (June 25, 2013), struck down the coverage formula that determined what jurisdictions are subject to Section 5 of the Voting Rights Act, so the coverage formula can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5.

Because of the Shelby County decision, the United States Attorney General is not making any determinations under Section 5 on voting or election changes made by states. The Supreme Court did not strike down Section 5, so it is still in effect. For that reason, the Mississippi Attorney General’s Office submitted Chapter 361, Laws of 2013, to the United States Attorney General, in order to technically meet the requirements of Section 5 and fulfill the condition in the effective date of the bill, which will allow the bill to take effect.

By letter dated October 22, 2013, the United States Attorney General responded that he is not making determinations on the merits of any bill that is submitted under Section 5. The submission of Chapter 361 and the response from the United States Attorney General technically met the requirements of Section 5 and fulfilled the condition in the effective date of Chapter 361, so Chapter 361 became effective from and after October 22, 2013, the date of the United States Attorney General’s response letter.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2013 amendment added the last sentence in (5).

The 2015 amendment, in (1), substituted “and composed of” for “and comprised of” in the first sentence and deleted “From and after January 1, 1995, the dates upon which” from the beginning of the third sentence; in (2), substituted “all Mississippi Bar members” for “all members of the Mississippi Bar” in the second sentence; and made minor stylistic changes throughout.

Cross References —

Constitutional authority for dividing the state into circuit court districts, see Miss. Const. Art. 6, § 152.

Provisions for furniture, equipment, and supplies, see §§9-1-35 to9-1-37.

Chancery court districts, see §§9-5-3 et seq.

Authority of circuit court judge to assign criminal matters to county judge, see §9-9-21.

Exemption of the judiciary from provisions of open meetings law, see §25-41-3.

JUDICIAL DECISIONS

1. In general.

Although a judge’s conduct in entering orders regarding a defendant at the same time the senior judge was also entering orders regarding that defendant in some of the same cases did not evidence the level of civility and professionalism expected of judges, the judge’s conduct did not constitute a violation of the statute. Mississippi Comm'n on Judicial Performance v. Byers, 757 So. 2d 961, 2000 Miss. LEXIS 27 (Miss. 2000).

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 to 133,11-7-121 [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).

Where the business of a circuit court does not require that it sit for the entire length of the term as fixed by statute, the trial of a defendant’s appeal was properly dismissed for want of prosecution during the three days which the court sat, and his motion for a new trial was properly overruled. McDowell v. State, 251 Miss. 156, 168 So. 2d 658, 1964 Miss. LEXIS 336 (Miss. 1964).

OPINIONS OF THE ATTORNEY GENERAL

Circuit court must be held within the boundaries of the county. See Sections 9-7-3 and 19-3-43. Lee, August 30, 1996, A.G. Op. #96-0531.

Since §9-9-35 specifically governs the assignment of cases to a county judge when justified by an overcrowded docket, controls over the more general provision of this section stating that the senior judge has the authority to assign causes and dockets. Yerger, July 23, 2004, A.G. Op. 04-0312.

RESEARCH REFERENCES

Am. Jur.

20 Am. Jur. 2d (Rev), Courts §§ 20 et seq.

CJS.

21 C.J.S., Courts §§ 148, 149.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1994, ch. 564, § 39.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory paragraph.

JUDICIAL DECISIONS

1. In general.

Defendant’s offense was charged to have been committed in Lee County, which was in the First Circuit Court District, Miss. Code Ann. §9-7-5, and any other circuit court in the First Circuit Court District could have accepted defendant’s guilty plea, Miss. Code Ann. §99-15-24; the Monroe County Circuit Court was in the First Circuit Court District, Miss. Code Ann. §9-7-5, and therefore the Monroe County Circuit Court was an appropriate venue for defendant’s guilty plea to the Lee County charge, and thus all of defendant’s arguments dependent on the impropriety of the venue for the plea were without merit. Garner v. State, 944 So. 2d 934, 2006 Miss. App. LEXIS 921 (Miss. Ct. App. 2006), cert. dismissed, 951 So. 2d 563, 2007 Miss. LEXIS 534 (Miss. 2007).

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 40.

The preamble to Laws of 2005, ch. 501, reads as follows:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit court districts and chancery court districts; and

“WHEREAS, the Legislature has thoroughly investigated the state of the trial courts and trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW THEREFORE,”

Laws of 2005, ch. 501, §§ 19 and 22 provide:

“SECTION 19. The candidates for any new judgeships or chancellorships created under Laws 2005, Chapter 501, shall be entitled to run for those offices in the judicial election prior to the commencement of the initial term of the new judgeship or chancellorship.

“SECTION 22. This act shall take effect and be in force from and after January 1, 2007, provided it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

On July 15, 2005, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2005, ch. 501, § 9.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2005 amendment substituted “four (4) judges” for “three (3) judges” in (1); and added (2).

The 2015 amendment in (2), deleted “For purposes of appointment and election” at the beginning, substituted “must reside in” for “shall be a resident of” in the second and third sentences, and substituted “may be a resident” for “shall be a resident” in the next-to-last sentence.

Cross References —

Judicial review of final decisions of employee appeals board, see §25-9-132.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 41.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory paragraph.

Editor’s Notes —

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 42.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment deleted “circuit” preceding “judges for the Second Circuit Court District” in (1); and deleted “For the purposes of appointment and election” from the beginning of (2).

Editor’s Notes —

Laws of 1975, ch. 475, § 2, effective from and after September 1, 1975, provides as follows:

“SECTION 2. All summonses, subpoenas, citations, writs, process and processes of every nature and kind whatsoever which have been heretofore lawfully issued and made returnable to a term of court the date of which is changed by this act shall be legal and valid precisely as if they were made returnable to the terms and dates herein fixed; provided, however, that in all instances where the time for appearance or pleading is shortened by the changes of court terms herein made, such appearance or pleading shall be due on the first day of the next succeeding term of court.”

Laws of 1980, ch. 432, § 2 effective from and after July 1, 1980, provides as follows:

“SECTION 2. All summonses, subpoenas, citations, writs, process and processes of every nature and kind whatsoever which have been heretofore lawfully issued and made returnable to a term of court the date of which is changed by this act shall be legal and valid precisely as if they were made returnable to the terms and dates herein fixed; provided, however, that in all instances where the time for appearance or pleading is shortened by the changes of court terms herein made, such appearance or pleading shall be due on the first day of the next succeeding term of court.”

The United States Attorney General, by letter dated September 6, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 564, § 43.

The preamble to Chapter 476, Laws of 2015, effective from and after April 22, 2015, provides:

“WHEREAS, it is the responsibility of the Legislature under Section 152 of the Mississippi Constitution of 1890 to divide the state into an appropriate number of circuit and chancery court districts; and

“WHEREAS, the Legislature has investigated the state of the trial courts and the trial court districts and has considered the needs of the state according to all the criteria imposed by the Constitution and by general law; NOW, THEREFORE,”

Amendment Notes —

The 2015 amendment substituted “is composed” for “shall be comprised” in the introductory paragraph.

JUDICIAL DECISIONS

1. In general.

Order in effect adjourning regular term of circuit court of Calhoun County to later day, pursuant to which sheriff and clerk adjourned court, held valid. Mississippi & S. V. R. Co. v. Brown, 160 Miss. 123, 132 So. 556, 1931 Miss. LEXIS 124 (Miss. 1931).

Where circuit court of Lafayette County undertook to hold spec