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Mississippi Civil Practice and Procedure
University of Mississippi School of Law
Abbott, Guthrie T.

MISSISSIPPI CIVIL PRACTICE OUTLINE
Professor Abbott
Spring 2010
 
 
I.                    INTRODUCTION TO THE COURT SYSTEM
a.      Statutory provisions
b.      Constitutional provisions
                                                              i.      171 – creates justice cts
                                                            ii.      172 – legislature may create/abolish inferior cts
c.       Justice courts
                                                              i.      Created – S. 171
                                                            ii.      Jur – (const. amount $500) – now $2,500 and down (may be changed by legislature – 9-11-9). Potentially can hear cases in which the matter of controversy exceeds the jur amount.
                                                          iii.      Title – justice of the peace
                                                           iv.      Number – at least 2 in each county, 82 counties, 10 divided in 2
                                                             v.      Qualifications – high school diploma, 21, resident of the county
                                                           vi.      Record – yes, but no ct reporter. Ct can subpoena witnesses, hold in contempt, etc. Can only be used to impeach witnesses, b/c review on appeal is de novo. 9-13-31 – atty may record ct proceedings  – can use later b/c testimony under oath, although only for impeachment. The record in justice ct is simply a lits of the things that have been entered on the clerk’s docket. If appeal, the clerk must certify the record.
                                                         vii.      Res judicata – decisions become bound, further claims for damages are barred
                                                       viii.      Jury – can demand trial by jury
                                                           ix.      Misdemeanors – may be tried
                                                             x.      Appeal – within 30 days under UR CCC 5.04. Cross out 11-51-85.
                                                           xi.      Brown v. Vance – statutory fee system to compensate JPs unconstitutional.
d.      County courts
                                                              i.      Created – 9-9-21
                                                            ii.      Jur amount – $200,000 and down, both law and equity
                                                          iii.      Number – 19 counties have county cts, population requirement, so not in every county
                                                           iv.      Qualification – law degree, practice 5 years in MS, resident of the county
                                                             v.      Misdemeanors – may be tried
                                                           vi.      Concurrent jur – with justice ct over the matters $2,500 and down, concurrent with circuit and chancery cts in all matters of law and equity if less then $200,000.
                                                         vii.      Exclusive jur – eminent domain – no $200,000 limit (appeal to S. Ct), partition of personal ppty, and actions of unlawful entry and detainer 9-9-21. If no county ct, appeal goes to circuit ct that sits as special ct of eminent domain. Appeal must be filed within 10 days.
e.      The courts of appeals
                                                              i.      Bifurcated ct system – from county and justice cts:
1.      Chancery court – ct of limited jur – ct in equity – frequently closely related to matters at law, but also involve suits for specific performance, injunctions, etc.
a.      Created – S. 159. S. 152 allows the legislature to divide the state into “an appropriate number of circuit ct districts and chancery ct districts.”
b.      Jur amount – no limit
c.       Number – 20 chancery ct districts. Usually the ct has 4 terms during any given year in each county. Most judges use ct administrators to manage their calendars. Time in b/w the term – “vacation” is used sometimes to hear cases, especially ex parte matters. Formal terms of ct are not as important b/c usually no jury sitting.
d.      Title – chancellor
e.      Qualifications – 26, law degree, 5 years of practice, resident of MS
f.        Subject matter jur – S. 159
                                                                                                                                      i.      All matter in equity
                                                                                                                                    ii.      Divorce and alimony
                                                                                                                                  iii.      Matters testamentary and of administration
                                                                                                                                   iv.      Minor’s business – under 21
                                                                                                                                     v.      Cases of idiocy, lunacy, and person of unsound mind
                                                                                                                                   vi.      All cases of which the said ct had jur under the laws in force when this Constitution is put in operation
                                                                                                                                 vii.      Title to real ppty – S. 160
g.      Concurrent jur – with circuit ct of suits on bonds of fiduciaries and public officers for failure to account for money or ppty received, or wasted or lost by neglect or failure to collect, and of suits involving inquiry into matters of mutual accounts; but if the P brings his suit in the circuit ct, that ct may, on application of the D, transfer the cause to the chancery ct, if it appear that the accounts to be investigated are mutual and complicated.
h.      Jury – no most of the time
2.      Circuit court – ct at law. Matters at law usually involve P seeking damages. Judges move around circuits – formal terms of ct. Period b/w terms – vacation.
a.      Created – S. 156. S. 152 allows the legislature to divide the state into “an appropriate number of circuit ct districts and chancery ct districts.”
b.      Jur amount – no limit
c.       Jur – all encompassing, unless vested by const. in some other ct, and such appellate jur as shall be prescribed by law
d.      Concurrent jur – with circuit ct of suits on bonds of fiduciaries and public officers for failure to account for money or ppty received, or wasted or lost by neglect or failure to collect, and of suits involving inq

on from practice for not more than 30 days.
4.      Comment – purpose of the rule to prevent judge shopping within a district or a ct. Voluntary dismissal and immediate refiling may also be a violation of the rule.
5.      1.07 Presentation to other chancellor of matter when relief is denied prohibited – go to the right chancellor the first time. Chancellor shopping?
6.      1.08 Withdrawal of counsel – not allowed when already made an appearance, except upon written motion and after a reasonable notice to the client and opposing counsel.
7.      1.10 Discovery Deadlines and Practice
a.      discovery completed within 90 days from service of an answer by D. Can ask for extension, but need to show good cause and really depends on the judge.
b.      Responses must be set forth right after discovery requests, interrogatories, requests for production and requests for admission. If not comply, response is not deemed to be served.
8.      1.12 Electronic Media coverage – usually have to allow unless a good reason to keep them out.
                                                            ii.      Rules concerning pleading
1.      2.02 Pleadings must be filed before presented – with clerk, unless emergency or undue hardship – then with judge under 5(e).
                                                          iii.      Rules Concerning Trials
1.      3.01 Vacation business – rules of precedence – Where the Chancellor has, by order or custom, set apart time for hearing vacation actions, all vacation matters coming before him at such time and place shall have precedence over all the business of any term of Court that may be then in session and not finally adjourned. At all other times during any term of Court, the business of the term shall have precedence over all vacation matters presented to the Chancellor. Abbott: if you check with the clerk or court administrator, judges announce/publish vacation day “hearings.” So if the judge is in Calhoun county, and you are in Lafayette county, first file in Lafayette county, and then check out the court file and take all of that with you to Calhoun county.
2.      3.05 Copy of exhibits – duty to distribute copies of exhibits to judge and opposing counsel, unless excused by ct. If copy, the original shall be presented. Just give copies.
3.      3.06 Only one atty for each party may examine witness – unless permission by chancellor.
4.      3.09 Agreements of counsel – “you can screw me once” rule – oral ag’ts in the presence of the ct – recorded by ct reporter. All other ag’ts – should be reduced to writing and filed.
5.      3.11 Argument of counsel – judges don’t have to listen to oral argument, unless you want to put something on the record – better to talk to judge before.