Moran v. Necaise, 54703
| Decision Date | 28 September 1983 |
| Docket Number | No. 54703,54703 |
| Parties | Alden R. MORAN v. Regina Stanford NECAISE. |
| Court | Mississippi Supreme Court |
Pete H. Carrubba, Dukes, Carrubba, Dukes & Keating, Gulfport, Billy R. Gibson, Bay St. Louis, for appellant.
Herbert J. Stelly, Sr., Gulfport, for appellee.
En Banc.
ON MOTION TO DOCKET AND DISMISS APPEAL
Motion of appellee, Regina Stanford Necaise, to docket and dismiss appeal from judgment of the Circuit Court of Hancock County was received and filed in this Court on April 18, 1983, alleging Moran's failure to timely pay estimated court costs. Appellant, Alden R. Moran, then petitioned this Court on May 13, 1983, for writ of certiorari, requesting us to direct the lower court's clerk and official court reporter to prepare and certify the transcript of the record.
Judgment for movant/plaintiff Necaise on a promissory note was rendered October 12, 1982, by the Circuit Court of Hancock County against the defendant/appellant Alden R. Moran, in the amount of $11,822.00. 1 Motion for a new trial, timely made by defendant Moran, was overruled by the circuit On the question of when appellant Moran received notice of the estimate of costs to appeal, he points out that a writ of certiorari ordering the circuit clerk and court reporter to furnish him an estimate of costs was issued by Justice Bowling of this Court on January 21, 1983. Moran further states that the clerk's estimate of costs for appeal was dated January 27, 1983, and filed with the circuit clerk which Moran says he received on January 28, 1983. Additionally, Moran pointed out that the estimate was stamped "Filed, August 4, 1982", which date is prior to judgment date and obviously not the correct date. Costs were paid by Moran to the circuit clerk on March 11, 1983.
judge on October 18, 1982. Notice to the court reporter(s) to transcribe and estimate costs of the appeal was mailed by Moran's attorney, Billy R. Gibson, on October 12, 1982. Moran's petition for appeal with supersedeas was filed with the circuit clerk October 22, 1982. On December 21, 1982, an order was obtained by Moran allowing supersedeas.
To the contrary, Mrs. Necaise indicates that Moran's attorney was verbally advised of the estimated court costs as early as October 22, 1982, and was again advised of the same on December 11, 1982. Necaise avers that on January 13, 1983, the court reporter further advised Moran's attorney of such costs and filed a duplicate of the written estimate with the clerk on the same day after it was found that the original was not in the file. Possibly some of the confusion may have resulted from personnel changes in clerk's office below.
Mrs. Necaise's motion to docket and dismiss the appeal was filed with the clerk of this Court April 18, 1983, reasoning that dismissal was warranted due to failure of Moran (defendant below) to timely pay the estimated court costs. Petition for writ of certiorari was filed by Moran on May 13, 1983, requesting that the circuit clerk and court reporter be directed to prepare and certify the transcript of the record of trial.
Two questions are presented here and both may be answered by the same analysis: Should Moran's requested writ of certiorari be issued? Or, Should Mrs. Necaise's motion to docket and dismiss be granted?
As to her docket and dismiss motion, Mrs. Necaise takes the position that Moran's attempted appeal was not perfected because of his failure to timely pay the estimated court costs and that, therefore, the appeal should be dismissed. However, her rebuttal brief concedes that under the rationale of Dixieland Food Stores, Inc. v. Kelly's Big Star, Inc., 384 So.2d 1031 (Miss.1980), a petition for appeal 2 is sufficient to perfect the appeal. Then Mrs. Necaise points out, however, that, if January 13, 1983, is considered as the date of notification to Moran of costs, payment was not made within 45 days of that date. 3
Moran claims that he timely noticed the court reporter to transcribe, timely petitioned for an appeal, and made good faith effort to obtain and pay estimated appeal costs. Although payment was not made until later than 45 days from the date of judgment, 4 Moran claims he paid costs within a reasonable time and that dismissal of his appeal is not justified.
Three of our recent prior decisions and several statutes on appeals may have relevance to the situation presented here. An appeal must be taken within 45 days of rendition of judgment, according to language of § 11-51-5 supra, "saving to persons under a disability of infancy or unsoundness of mind ...."
Our opinion in Dixieland, authored by Justice Sugg, delineated three methods of
appeal to this Court, indicating that either method must be pursued within 45 days in order to "perfect" the appeal:
(1) ... prepaying the costs in the lower court and the fee required by section 25-7-3.
(2) ... filing in the office of the clerk of this Court a transcript of the record of the case in which the appeal is taken.
(3) By petition for appeal....
Moran's appeal in the present case, according to Dixieland, was perfected by his petition for appeal filed October 22, 1982. Mississippi Code Annotated § 11-51-15 (Supp.1982) provides for "Petition for Appeal". Dixieland further holds that:
[I]n cases where petition for appeal is filed and granted by the clerk of the trial court, the appeal is taken when the petition is filed. Of course, appellant must pay the costs "as then required," which means after the estimate of costs is prepared by the clerk and before the record is filed in this Court.
Under Dixieland, Moran's appeal was "perfected" in the present case by filing of the petition within the 45-day period, but he still would have to pay the estimate of costs as required under § 11-51-15, supra, after the clerk's preparation of the estimate of costs. The trial court clerk was required to file a cost estimate within 5 days of judgment according to Mississippi Code Annotated § 11-51-61 (Supp.1982). Mississippi Code Annotated § 11-3-5 (Supp.1982) provides that an appeal "shall" not be dismissed "because of any failure by an officer to comply with the requirements of law in reference to appeals; ...." [emphasis supplied].
Moran claims that his March 11, 1983, payment of costs was in good faith and within a reasonable time after notification in January of the costs of the appeal from the October 12, 1982, judgment. Authored by Walker, J., Allgood v. Allgood, 367 So.2d 450 (Miss.1979) states:
We also hold that in future cases, if the clerk of the trial court fails to satisfy the statutory requirements as to the bill of costs, the attorney of record desiring an appeal must make a motion in writing to the trial judge, within the allotted forty-five days, compelling production of the cost bill from the trial court clerk. Absent such a written motion within the time for appeal, the appeal must be dismissed for lack of jurisdiction. See Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924 (1942).
The appeal was not dismissed in Allgood for lack of timely payment, however, because the circumstances were unique inasmuch as the appeal statutes were new, and the appellant made a good faith effort to appeal according to the case law then existing. Id. at 451-52.
Garrett v. Nix, 431 So.2d 137 (Miss.1983), authored by Prather, J., (but decided subsequent to the main events presented here), stated that:
Although the payment of costs was a necessary step to perfect the appeal under the procedure discussed in Allgood, we think the same procedure should be followed when payment of costs is a procedural step also. In this case, the appellants never made any effort to compel production of the cost bill. This factor alone warrants dismissal of the appeal.
As to timely payment of cost estimates, Garrett further stated:
Payment of estimated costs came fifty-four days after the appellants acquired knowledge of the estimated costs. (January 20-March 15). Payment of court costs, on a date beyond the initial forty-five day period, should follow immediately, absent extenuating circumstances, after receipt of the clerk's cost bill. The appellants' failure to do so also justifies a dismissal.
Garrett was characterized as a case of unnecessary delay and the appeal was dismissed. 5
Events transpiring and brought to our attention since Dixieland, Allgood, and Garrett, clearly establish that confusion exists regarding applicable procedures to be taken in appeals from lower courts. The administration of justice will be better served by only one method of appeal rather than the three discussed above and presently allowable under our statutes and decisions. We now deem it needful and imperative, in keeping with judicial economy, for the prevention of further confusion, to provide for one (and only one) method of appeal to the Supreme Court of Mississippi. No longer is it doubted that we have the power to act accordingly. Newell v. State, 308 So.2d 71 (Miss.1975). Therefore, we now promulgate Supreme Court of Mississippi Rule 48, attached as APPENDIX "A", 6 to be effective January 1, 1984.
Rule 48, as is true of all other rules, will not likely fit every conceivable situation that may arise in the bringing of appeals. However, when one desiring to take an appeal gives proper notice of appeal provided by Rule 48 and pays the cost estimate as stated therein, he is then entitled to have the record made up and certified to this Court. When the record is made up, a bill or statement of the total costs shall be forthwith furnished to appellant or appellant's counsel by the lower court clerk. Payment shall then be made by appellant of the total costs, and upon failure of such payment the case shall be subject to docketing and dismissal upon motion of appellee.
To the extent that the cases referred to above, or any other case, rule or statut...
To continue reading
Request your trial
-
Mitchell v. State, 57746
...So.2d 71, 76 (Miss.1975). See also City of Mound Bayou v. Roy Collins Construction Co., 457 So.2d 337, 342 (Miss.1984); Moran v. Necaise, 437 So.2d 1222, 1225 (Miss.1983); Scott v. State, 310 So.2d 703, 705 (Miss.1975); Brown v. City of Water Valley, 319 So.2d 649, 651 (Miss.1975); Order Ad......
-
Bickham v. Department of Mental Health
...(Miss.1989); Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308 (Miss.1989); Landrum v. Bailey, 475 So.2d 140 (Miss.1985); Moran v. Necaise, 437 So.2d 1222 (Miss.1983). 3 Rule 54(b), Miss.R.Civ.P., contains as well an established and recognized process by which this Court accepts interlocut......
-
Jones v. City of Ridgeland
...six months violated the doctrine of separation of powers by impinging on our power to promulgate procedural rules. In Moran v. Necaise, 437 So.2d 1222, 1225 (Miss.1983), we exercised our rule-making power by prescribing a thirty-day time period after entry of judgment for perfecting an appe......
-
Southern Farm Bureau Cas. Ins. Co. v. Holland, 54413
...time period following entry of judgment within which an appeal must be perfected. See Rule 48(b), Miss.Sup.Ct.Rules; Moran v. Necaise, 437 So.2d 1222 (Miss.1983). I recognize without hesitation that the traditional practice in this state has precluded interlocutory appeals in circuit court ......