Bruce v. Bruce

Decision Date02 October 1991
Docket NumberNo. 90-CA-0482,90-CA-0482
Citation587 So.2d 898
PartiesEmmitt Russell BRUCE v. Rebecca Annell S. BRUCE (Barnett).
CourtMississippi Supreme Court

Paul E. Rogers, Davis & Rogers, Jackson, for appellant.

Barry W. Gilmer, Gilmer Law Firm, Jackson, for appellee.

En Banc.


ROBERTSON, Justice, for the Court:


This matter is before the Court on Petition for Rehearing of Rebecca Annell S. Bruce Barnett ("Barnett"), Appellee here, who seeks reconsideration and reversal of our decision and opinion of March 27, 1991. That opinion denied Barnett's Motion to Dismiss the appeal of her ex-husband, Emmitt Russell Bruce ("Bruce"). Central to Barnett's motion is her claim that Bruce has failed to file and serve an effective notice of appeal within the time allowed by law. The issue turns on when the time for filing notice of appeal began to run which, itself, turns on the correct legal characterization and effect of a post-trial motion Barnett filed below.

Upon review we find that our original opinion proceeded upon an erroneous premise--that Barnett's post-trial motion was one under Rule 60(b), Miss.R.Civ.P. Barnett's motion urged reconsideration of matters properly within the merits of her claim and was filed within ten legal days of the judgment. The order adjudging the matters the motion tendered became in law the final judgment. Bruce filed no notice of appeal within thirty days thereafter.

We grant the Petition for Rehearing, withdraw our previous opinion, and grant Barnett's Motion to Dismiss Bruce's appeal, for reasons presently to be stated.


In 1975, the Chancery Court for the First Judicial District of Hinds County, Mississippi, entered its final judgment granting Rebecca Annell S. Bruce (Barnett) and Emmitt Russell Bruce a divorce and making extensive provisions for child custody, support, and the like. Several modification proceedings followed, of no consequence today.

On June 8, 1989, Barnett returned to the Chancery Court, filing her Motion For Contempt And Other Relief, raising a plethora of issues. The matter proceeded to trial. Of importance, the Chancery Court, on April 20, 1990, entered and filed Judgment Modifying Former Decree and therein adjudged thirteen separate issues, ranging from custody, to medical insurance, to college expenses. On the sixth day thereafter--April 26, 1990--Bruce filed in the Chancery Court his notice of appeal to this Court.

On the eleventh day--May 1, 1990--Barnett filed and served a Motion To Amend Judgment. In that motion, Barnett said she was proceeding under Rule 59 and 60, Miss.R.Civ.P., and asked the Chancery Court to make "proper findings of fact relative to child support and set the commencement date for the payment of child support and accurately fix the payment of college expenses." On June 1, 1990, the Chancery Court entered an Order Amending Judgment which did in fact amend the April 20, 1990, Judgment, in accordance with Barnett's motion. The amendment affects only one of the thirteen paragraphs of the original Judgment. It effects no substantive change there, merely clarifying the time when Bruce's payments will be due. See Fultz v. Doss By Doss, 507 So.2d 891, 893 (Miss.1987).



Barnett now says that Bruce's appeal should be dismissed. She says his Notice given April 26, 1990, was fatally premature and was ineffective to perfect an appeal. The reason this is so, according to Barnett, is that her May 1, 1990, motion operated to stay the running of the time for perfecting an appeal and that this stay related back to April 20, so that the thirty day time clock did not then begin to tick. Barnett says there was no appealable final judgment until the Order Amending Judgment was entered June 1, 1990, and that any notice filed prior to that time was legally ineffective to perfect an appeal. Bruce filed no notice of appeal within thirty days from June 1, 1990, and, because of this, Barnett says his appeal should be dismissed. See Rules 2(a)(1) and 4(d), Miss.Sup.Ct.Rules; Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308 (Miss.1989).

The issue turns on whether Barnett's May 1, 1990, Motion to Amend Judgment was, in legal effect, a motion to alter or amend a judgment under Rule 59(e), Miss.R.Civ.P., 1 or a motion for relief from judgment or order made under Rule 60(b), Miss.R.Civ.P. 2 If her motion was a Rule 59(e) motion, other rules decree she must prevail here.

Barnett correctly perceives the matter as governed by the structure of Rule 4, Miss.Sup.Ct.Rules, fixing the time for filing notice of appeal. 3 Our general rule, of course, is that notice must be given within thirty days of the date of the entry of the judgment or order appealed from. Rule 4(a), Miss.Sup.Ct.Rules; Pittman v. Commonwealth National Life Insurance Co., 562 So.2d 73, 74 (Miss.1990) ("more than six months passed"); Moore v. Wax, 554 So.2d 312, 313 (Miss.1989) (one day late). A Rule 59 motion to alter or amend judgment or for a new trial interrupts the running of the thirty day time period. Rule 4(d)(iii) and (iv), Miss.Sup.Ct.Rules; King v. King, 556 So.2d 716, 721 (Miss.1990) (Robertson, J., concurring). It stays the judgment and relates back, for all purposes resetting the appeals clock to the moment that judgment was entered and holding it there pending the motion. Rule 4(d) provides further:

A notice of appeal filed before the disposition of any of the above motions [including Rule 59(e) motions] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of a motion as provided above.

A notice of appeal given before the filing of a timely filed Rule 59 motion is similarly of no effect. See Ex Parte Andrews, 520 So.2d 507 (Ala.1987).

The Supreme Court has explained the structure and theory of identically worded Federal Rules.

Rule 59(e) of the Federal Rules of Civil Procedure provides that a motion to "alter or amend the judgment" shall be filed within 10 days of the entry of judgment. Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that a notice of appeal filed [before or] while a timely Rule 59(e) motion is pending has no effect. Together, these Rules work to implement the finality requirement ... by preventing the filing of an effective notice of appeal until the District Court has had an opportunity to dispose of all motions that seek to amend or alter what otherwise might appear to be a final judgment.

Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74, 109 S.Ct. 987, 990, 103 L.Ed.2d 146, 153 (1989). Professor J.W. Moore has aptly described the effect of a Rule 59 motion on a previously filed notice of appeal: "The appeal simply self-destructs." 9 Moore's Federal Practice p 204.12, p. 4-70, n. 17 (1989). The Supreme Court has consistently enforced this view. Osterneck v. Ernst & Whinney, supra; Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 60-61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225, 229-30 (1982); see also, Echevarria-Gonzales v. Gonzales-Chapel, 849 F.2d 24, 26 (1st Cir.1988).


Barnett labels her post-trial motion a "Motion to Amend Judgment," and our question is what manner of motion this is. In paragraph five of her motion, Barnett adds uncertainty when she says it is "filed pursuant to Rules 59 and 60, Mississippi Rules of Civil Procedure." The label and this language are equivocal and without controlling effect. In cases such as this we disregard the label or title attached to a pleading or motion and look to its content. Williams v. Mason, 556 So.2d 1045, 1050 (Miss.1990); Shannon v. Henson, 499 So.2d 758, 762 (Miss.1986); Peeples v. Yarbrough, 475 So.2d 1154, 1156-57 (Miss.1985); Moore v. Moore, 451 So.2d 226, 227 (Miss.1984); Thornton v. Breland, 441 So.2d 1348, 1349 (Miss.1983).


One fact shedding light on the point is the date Barnett moved. Cannon v. Cannon, 571 So.2d 976, 978, n. 2 (Miss.1990). Her right to proceed under Rule 59 was temporally limited. A motion under Rule 59 "shall be served not later than ten days after entry of the judgment." Rules 59(b) and (c), Miss.R.Civ.P.; see Fultz v. Doss By Doss, 507 So.2d 891, 893 (Miss.1987). The judgment was entered April 20, 1990. The tenth day was April 30, 1990, a Monday. See Rule 6(a), Miss.R.Civ.P. Barnett, in fact, both filed and served her Motion To Amend Judgment on the eleventh day, May 1, 1990. This might ordinarily suggest the motion falls under Rule 60(b). See Cannon v. Cannon, 571 So.2d at 978.

Rule 6(a), however, provides that the last day of a time period allowed under the Rules may not fall on "a legal holiday," and proceeds to prescribe that "legal holiday" as used in the Rules includes "the last Monday of April (Confederate Memorial Day)." April 30, 1990, was the last Monday of April and was, in fact, observed as Confederate Memorial Day. Miss.Code Ann. Sec. 3-3-7 (Supp.1990). This meant that Barnett had until the next day, May 1, 1990, within which to file and serve a Rule 59 motion and that the Motion to Amend Judgment she did, in fact, file was eligible for consideration under Rule 59. 4

The United States Court of Appeals for the Tenth Circuit has spoken to the point.

This Court has consistently held that regardless of how styled, a motion questioning the correctness of a judgment and timely made within ten days thereof will be treated under Rule 59(e).

Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 703 (10th Cir.1988). Barnett's is such a motion. It was filed within ten legal days of the April 20, 1990, judgment, although it raises only technical and clarifying questions.

The Fifth and Eleventh Circuits enforce this "bright line" rule. Finch v. City of Vernon, 845 F.2d 256, 258-59 (11th Cir.1988); Ross v. Global Marine, Inc., 859 F.2d 336, 338-39 (5th Cir.1988). United States Fire Insurance Co. v. Schnabel, 504 P.2d 847, 853 n. 18 (Alaska 1972), considering Alaska's identically worded rules, suggests such a...

To continue reading

Request your trial
63 cases
  • Cruse v. Nunley
    • United States
    • Mississippi Supreme Court
    • September 18, 1997
    ...because they are 'collateral' and do not seek a change in the judgment but 'merely' what is due because of the judgment." Bruce v. Bruce, 587 So.2d 898 (1991) (quoting Buchanan v. Stanships, Inc., 485 U.S. at 267-68, 108 S.Ct. at 1131, 99 L.Ed.2d at 293-94; White v. New Hampshire Dept. Of E......
  • Kirk v. Pope
    • United States
    • Mississippi Supreme Court
    • December 6, 2007
    ...procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies." Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991). Accordingly, a litigant should pursue other available remedies before requesting relief under Rule ¶ 17. On November 5, 2002......
  • Roley v. Roley
    • United States
    • Mississippi Court of Appeals
    • May 18, 2021 noted, he asserts that the chancellor erred when he did not conduct a "de novo" hearing on his motion. Veto cites Bruce v. Bruce , 587 So. 2d 898 (Miss. 1991), among other cases, in support of this assertion. In Bruce , the supreme court recognized that "[w]hen hearing a motion under Rul......
  • Fulton v. Miss. Farm Bureau Cas. Ins. Co.
    • United States
    • Mississippi Court of Appeals
    • April 3, 2012
    ...ruling was in direct conflict with supreme court precedent. Indeed, Mississippi law on this issue is well settled. In Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991), the Mississippi Supreme Court held that “motions for reassessment of costs or for attorneys fees lie outside Rule 59(e), beca......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT