In re Rules Procedure

Decision Date09 June 2014
Docket NumberNo. 89-R-99001-SCT,89-R-99001-SCT
CourtMississippi Supreme Court

Serial: 191820


This matter is before the en banc Court on the Motion for the Amendment of Comments to the Mississippi Rules of Civil Procedure filed by the Supreme Court Rules Advisory Committee. As created by order of this Court originally dated November 9, 1983, the Committee is composed of members who represent the bench, bar, and the law schools of this state. In keeping with its responsibilities and for the purpose of assisting the bench and bar, the Committee has promulgated the notes that follow the Court's rules. These notes, while not official comments of the Supreme Court, are the product of extensive research and review and have been vetted by the members of the Committee as well as other trial judges and practicing members of the bar. The Court expresses its sincere appreciation for the Committee's commitment, diligence, and hard work. Having carefully considered the motion and its attachments, the en banc Court finds that the motion should be granted to the extent provided in this order.

IT IS, THEREFORE, ORDERED that the current Comments to the Mississippi Rules of Civil Procedure are repealed effective July 1, 2014.

IT IS FURTHER ORDERED that the Advisory Committee Notes to the Mississippi Rules of Civil Procedure as contained in Exhibit "A" are approved for publication with the Mississippi Rules of Civil Procedure effective July 1, 2014.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.





Rule 1. Scope of Rules

These rules are to be applied as liberally to civil actions as is judicially feasible, whether in actions at law or in equity. However, nothing in the rules should be interpreted as abridging or modifying the traditional separations of jurisdiction between the law courts and equity courts in Mississippi.

The salient provision of Rule 1 is the statement that "These rules shall be construed to secure the just, speedy, and inexpensive determination of every action." There probably is no provision in these rules more important than this mandate; it reflects the spirit in which the rules were conceived and written and in which they should be interpreted. The primary purpose of procedural rules is to promote the ends of justice; these rules reflect the view that this goal can best be accomplished by the establishment of a single form of action, known as a "civil action," thereby uniting the procedures in law and equity through a simplified procedure that minimizes technicalities and places considerable discretion in the trial judge for construing the rules in a manner that will secure their objectives.

Rule 2. One Form of Action

Rule 2 does not affect the various remedies that previously have been available in the courts of Mississippi. The abolition of the forms of action furnishes a single, uniform procedure by which a litigant may present a claim in an orderly manner to a court empowered to give whatever relief is appropriate and just; the substantive and remedial principles that applied prior to the advent of these rules are not changed. What was an action at law before these rules is still a civil action founded on legal principles and what was a bill in equity before these rules is still a civil action founded upon equitable principles.

Rule 3. Commencement of Action

Rule 3(a) establishes a precise date for fixing the commencement of a civil action. The first step in a civil action is the filing of the complaint with the clerk or judge. Service of process upon the defendant is not essential to commencement of the action, but Rule 4(h) does require service of the summons and complaint within 120 days after the filing of the complaint.

Ascertaining the precise date of commencement is important in determining whether an action has been brought prematurely; whether it is barred by a statute of limitations; and which of two or more courts in which actions involving the same parties and issues have been instituted should retain the case for disposition, absent special considerations.


The provisions in Rule 3 pertaining to costs are intended to make uniform the assessing, accounting for, and funding of costs.

Rule 3(c) allows indigents to sue without depositing security for costs; however, the indigent affiant may be examined as to affiant's financial condition and the court may, if the allegation of indigency is false, dismiss the action.

Rule 4. Summons

After a complaint is filed, the clerk is required to issue a separate summons for each defendant except in the case of summons by publication. The summons must contain the information required by Rule 4(b), which requires the summons to notify the defendant that, among other things, a failure to appear will result in a judgment by default. Although the "judgment by default will be rendered" language may be an overstatement, the strong language is intended to encourage defendants to appear to protect their interests. Forms 1A, 1AA, 1B, and 1C are provided as suggested forms for the various summonses.

The summons and a copy of the complaint must then be served on each defendant. This rule provides for personal service, residence service, first-class mail and acknowledgement service, certified mail service, and publication service.

Personal service is authorized by Rule 4(d)(1)(A) and requires delivery of a copy of the complaint and the summons to the person to be served.

Residence service is authorized by Rule 4(d)(1)(B) and requires that a copy of the complaint and the summons be left at the defendant's usual place of abode with the defendant's spouse or other family member who is above the age of sixteen and who is willing to accept service. Residence service further requires that a copy of the summons and complaint be thereafter mailed to the defendant at the location where the complaint and summons were left.

Personal service and residence service may be made by a process server or the sheriff in the county where the defendant resides or can be found. A party using a process server may pay such person any amount that is agreed upon but only that amount statutorily allowed as payment to the sheriff under Mississippi Code Annotated section 25-7-19 (Supp. 2013) may be taxed as recoverable costs in the action. Summonses served by process servers should be in substantial conformity with Form 1A and summonses served by sheriffs should be in substantial conformity with Form 1AA.

First-class mail and acknowledgement service is authorized by Rule 4(c)(3). The plaintiff must mail the defendant a copy of the summons and complaint, two copies of a notice and acknowledgement conforming substantially to Form 1B, and a postage paid envelope addressed to the sender. Upon receipt, the defendant may execute the acknowledgement of service under oath or by affirmation. If the defendant fails to execute and return theacknowledgement of service in a timely fashion, the defendant may be ordered to pay the costs incurred by the plaintiff in serving the defendant by another method. This provision is intended to encourage a defendant to acknowledge service by first-class mail in order to avoid having to pay the costs that would otherwise be incurred by the plaintiff in serving that defendant. Execution and return of the acknowledgement of service does not operate as a waiver of objections to jurisdiction or venue. All jurisdictional and venue objections are preserved whether Form 1B is completed and returned from inside or outside the state. Although M.R.C.P. 4(c)(3) is modeled after Fed. R. Civ. P. 4(d), defendants who execute and return the acknowledgement of service under M.R.C.P. 4(c)(3) are acknowledging actual service, whereas defendants who execute and return the waiver under Fed. R. Civ. P. 4(d) are waiving service.

Publication service is authorized by Rule 4(c)(4) and is limited to defendants in chancery court proceedings and other proceedings where service by publication is authorized by statute. Service by publication is further limited to defendants who are nonresidents or who cannot be found within the state after diligent inquiry. The requirements for service by publication are detailed in the rule and must be strictly followed; otherwise service is ineffective. See Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988).

Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside the state. The plaintiff must send a copy of the summons and complaint to the person to be served by certified mail, return receipt requested [and must thereafter mail by first-class mail, postage prepaid, a copy of the summons and complaint to the person to be served at the same address. The Proof of Service must indicate the date on which the summons and complaint were mailed by first-class mail and must also include as an attachment the signed return receipt or the return envelope marked "refused." Service upon a foreign corporation, partnership or unincorporated association is effective even if the certified mail is delivered to and signed for or refused by a person other than the addressee, if the person accepting delivery and signing or refusing delivery is an officer or employee of the defendant who is authorized to receive or who regularly receives certified mail. See Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail upon a foreign corporation effective where the plaintiff addressed the certified mail to the foreign corporation's registered agent for service of process and the certified mail was delivered to the...

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