title-13•Title 13 — Evidence, Process and Juries
Mississippi Code of 1972 — Title 13. Evidence, Process and Juries
Text as published by FindLaw, current as of 2025-01-01.
Miss. Code Ann. § 1-1-9 asserts that copyright in the Mississippi Code of 1972, including catchlines, section numbering, source lines and annotations, is owned by the State of Mississippi.
Chapter 1 Evidence
§ 13-1-1
All provisions contained in this chapter, unless restricted by their nature or by express provision to particular courts, shall apply to and govern all courts.
§ 13-1-5
Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.
§ 13-1-11
A conviction of a person for any offense, except perjury or subornation of perjury, shall not disqualify such person as a witness, but such conviction may be given in evidence to impeach his credibility. A person convicted of perjury or subornation of perjury shall not afterwards be a competent witness in any case, although pardoned or punished for the same.
§ 13-1-13
Any witness may be examined touching his interest in the cause or his conviction of any crime, and his answers may be contradicted, and his interest or his conviction of a crime established by other evidence. A witness shall not be excused from answering any material and relevant question, unless the answer would expose him to criminal prosecution or penalty.
§ 13-1-19
If any person subpoenaed as a witness in any case or matter, shall refuse to be sworn or affirmed, or to give evidence, he shall be committed to prison by the court, justice, master, commissioner, referee, or other person authorized to take his testimony, there to remain without bail until he shall be sworn or affirmed or shall give his evidence.
§ 13-1-21
(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will.
(2) Waiver of the medical privilege of patients regarding the release of medical information to health care personnel, the State Board of Health or local health departments, made to comply with Sections 41-3-15, 41-23-1 and 41-23-2 and related rules, shall be implied. The medical privilege likewise shall be waived to allow any physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor to report to the State Department of Health necessary information regarding any person afflicted with any communicable disease or infected with the causative agent thereof who neglects or refuses to comply with accepted protective measures to prevent the transmission of the communicable disease.
(3) Willful violations of the provisions of this section shall constitute a misdemeanor and shall be punishable as provided for by law. Any physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist, or chiropractor shall be civilly liable for damages for any willful or reckless and wanton acts or omissions constituting such violations.
(4) In any action commenced or claim made after July 1, 1983, against a physician, hospital, hospital employee, osteopath, dentist, nurse, pharmacist, podiatrist, optometrist or chiropractor for professional services rendered or which should have been rendered, the delivery of written notice of such claim or the filing of such an action shall constitute a waiver of the medical privilege and any medical information relevant to the allegation upon which the cause of action or claim is based shall be disclosed upon the request of the defendant, or his or her counsel.
(5) In any disciplinary action commencing on or after July 1, 1987, against a medical physician, an osteopathic physician or a podiatrist pursuant to the provisions of Sections 73-25-1 through 73-25-39, 73-25-51 through 73-25-67, 73-25-81 through 73-25-95 and 73-27-1 through 73-27-19, waiver of the medical privilege of a patient to the extent of any information other than that which would identify the patient shall be implied.
(6) The Mississippi State Asylum Records shall be exempt from the requirements of this section, provided that such records relating to any person who has not been deceased for at least fifty (50) years shall not be exempt.
§ 13-1-21.1
In any medical malpractice action with multiple defendants, the medical privilege shall be considered waived by and between all defendants.
§ 13-1-22
(1) As used in this section:
(a) A “clergyman” is a minister, priest, rabbi, or other similar functionary of a church, religious organization, or religious denomination.
(b) A communication is “confidential” if made privately and not intended for further disclosure except in furtherance of the purpose of the communication.
(2) A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
(3) The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman shall claim the privilege on behalf of the person unless the privilege is waived.
(4) A clergyman's secretary, stenographer or clerk shall not be examined without the consent of the clergyman concerning any fact, the knowledge of which was acquired in such capacity.
§ 13-1-22.1
(1) As used in this section, unless the context clearly indicates otherwise:
(a) “Certified peer support member” means a law enforcement officer, fireman or emergency medical technician of an emergency service agency or entity who has received training in critical incident stress management and who is certified as a peer support member by the State Board of Health or the Department of Public Safety to provide emotional and moral support to an emergency responder who needs those services as a result of job-related stress or an incident in which the emergency responder was involved while acting in his official capacity.
(b) “Peer support event” means any debriefing, defusing or counseling session conducted by a certified peer support member that involves the emotional or moral support of an emergency responder who needs those services as a result of job-related stress or an incident in which the emergency responder was involved while acting in his official capacity.
(2) A certified peer support member shall not be compelled, without the consent of the emergency responder making the communication, to testify or in any way disclose the contents of any communication made to the certified peer support member by the emergency responder while engaged in a peer support event. This privilege only applies when the communication was made to the certified peer support member during the course of an actual peer support event.
(3) The privilege shall not apply if:
(a) The certified peer support member was an initial emergency service responder, a witness or a party to the incident that prompted the providing of the peer support event to the emergency responder;
(b) A communication reveals the intended commission of a crime or harmful act and such disclosure is determined to be necessary by the certified peer support member to protect any person from a clear, imminent risk of serious mental or physical harm or injury, or to forestall a serious threat to the public safety; or
(c) A crime has been committed and divulged.
(4) Any certified peer support member who reveals the contents of a privileged communication, or any person who threatens, intimidates, or in any way attempts to compel a certified peer support member to disclose the contents of a privileged communication, shall be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
§ 13-1-23
(1) Except as otherwise provided in subsection (2) of this section, a person who shall remain beyond the sea, or absent himself or herself from this state, or conceal himself or herself in this state, for seven (7) years successively without being heard of, shall be presumed to be dead in any case where the person's death shall come in question, unless proof be made that the person was alive within that time. Any property or estate recovered in any such case shall be restored to the person evicted or deprived thereof, if, in a subsequent action, it shall be proved that the person so presumed to be dead is living.
(2)(a) This subsection shall be known and may be cited as the “Zeb Hughes Law.”
(b) A person who has undergone a catastrophic event that exposed the person to imminent peril or danger reasonably expected to result in loss of life and whose absence following the event is not explained satisfactorily after diligent search or inquiry is presumed to be dead if the sworn testimony of persons having firsthand knowledge of the event, including law enforcement officers, first responders, search and rescue personnel and volunteers, eyewitnesses and any other persons, along with any other evidence before the court, is uncontradicted and supports a determination that the death of the missing person occurred in the catastrophic event. The death is presumed to have occurred at the time of the catastrophic event.
(c) The hearing to review evidence of the catastrophic event shall be held no less than two (2) years after the catastrophic event. Loss of life shall be proven by clear and convincing evidence. A notice of the hearing shall be provided to the coroner, the district attorney and the sheriff of the county in which the catastrophic event occurred within thirty (30) days of the date set for the hearing in accordance with the Mississippi Rules of Civil Procedure.
§ 13-1-25
(1) A written finding of presumed death, made by any officer or employee of the United States authorized to make such finding, pursuant to federal law (5 USC §§ 5561-5568; 37 USC §§ 551-558), as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this state as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance.
(2) An official written report or record, or duly certified copy thereof, that a person is missing, missing in action, interned in a neutral country, or beleaguered, besieged, or captured by an enemy, or is dead, or is alive, made by any officer or employee of the United States authorized by the laws referred to in subsection (1) of this section or by any other law of the United States to make same, shall be received in any court, office or other place in this state as prima facie evidence that such person is missing, missing in action, interned in a neutral country, or beleaguered, besieged, or captured by an enemy, or is dead, or is alive, as the case may be.
(3) For the purposes of subsections (1) and (2) of this section any finding, report or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States as is described in said subsections shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and the person signing same shall prima facie be deemed to have acted within the scope of his authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his authority so to certify.
§ 13-1-77
All public officers in this state having the charge or custody of any public books, records, papers, or writings, are authorized to certify copies of the same.
§ 13-1-81
Any certificate, attestation, or authentication, purporting to have been made or given by any person as an officer of any state or of the United States, shall be prima facie evidence of the official character of such person.
§ 13-1-121
In all actions against common carriers for injury or damage done to livestock while in transit, proof that the injury inflicted or damage done was inflicted or done to the livestock while in transit, shall be prima facie evidence of the want of reasonable skill and care on the part of the common carrier, their agents and employees in handling the shipment of livestock so injured or damaged.
§ 13-1-123
In any action brought to recover any damages, either to person or property, caused by running or operating a motor vehicle in violation of any of the provisions of Chapters 3 and 5 of Title 63 of the Mississippi Code of 1972, the plaintiff or plaintiffs shall be deemed to have made out a prima facie case by showing the fact of such injury, and that such person or persons operating, or causing to be run or operated, such motor vehicle, was at the time of the injury running or operating, or causing the said motor vehicle to be run or operated in a manner contrary to the provisions of Chapters 3 and 5 of Title 63 of the Mississippi Code of 1972.
§ 13-1-131
All certificates issued in pursuance of any act of Congress by any board of commissioners, register of any land office, or any other person authorized to issue such certificate, founded on any warrant, order of survey, entry, grant, confirmation, donation, preemption, or purchase from the United States of any land in this state, shall vest the full legal title to such land in the person to whom such certificate is granted, his heirs or assigns, so far as to enable the holder thereof to maintain an action thereon.
§ 13-1-149
When any question shall arise as to the law of the United States, or of any other state or territory of the United States, or of the District of Columbia, or of any foreign country, the court shall take notice of such law in the same manner as if the question arose under the law of this state.
§ 13-1-151
Any business may cause any or all records kept by such business in the regular course of its operation to be recorded, copied or reproduced by any photographic, photostatic or miniature photographic process which correctly, accurately and permanently copies, reproduces or forms a medium for copying or reproducing the original record on a film or other durable material, and such business may thereafter dispose of the original record, provided that every original record pertaining to any claim, tax or report due the State of Mississippi or any of its agencies shall be preserved for five (5) years from the thirty-first day of December of the year in which such claim arose, or such tax or report was due.
§ 13-1-155
After not less than ninety (90) days after the final determination or disposition of any civil action, or if an appeal shall have been taken, then after not less than ninety (90) days after receiving a certificate of the final disposition of the action, the clerk of the court in which the action was filed or tried shall destroy, return or otherwise dispose of all exhibits which were filed in the action. Provided, however, that no exhibit shall be destroyed, returned or otherwise disposed of until after the expiration of the time within which a bill of review may be filed in applicable cases as provided in Section 11-5-121, Mississippi Code of 1972. The clerk shall notify the attorneys for all parties to the action and the owner or person having custody of the property prior to the court action before the expiration of the ninety (90) day period that the exhibits may be claimed.
§ 13-1-227
(a) Before action.
(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit or chancery court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (4) the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(2) Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the same manner of service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided by law, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent.
(3) Order and examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Sections 13-1-201, 13-1-226 through 13-1-237, 13-1-241, and 13-1-243; and the court may make orders of the character provided for by Section 13-1-234. For the purpose of applying Sections 13-1-201, 13-1-226 through 13-1-237, 13-1-241, and 13-1-243, to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
(4) Use of deposition. If a deposition to perpetuate testimony is taken under Sections 13-1-201, 13-1-226 through 13-1-237, 13-1-241, 13-1-243, it may be used in any action involving the same subject matter subsequently brought in a circuit, chancery or county court in accordance with Section 13-1-232(a).
(b) Pending appeal. If an appeal has been taken from a judgment of a court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Section 13-1-234, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in Sections 13-1-201, 13-1-226 through 13-1-237, 13-1-241, and 13-1-243, for depositions taken in actions pending in the court.
(c) Perpetuation by action. This section does not limit the power of a court to entertain an action to perpetuate testimony.
§ 13-1-229
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by Sections 13-1-201, 13-1-226 through 13-1-237, 13-1-241, and 13-1-243, for other methods of discovery, except that stipulations extending the time provided in Sections 13-1-233, 13-1-234 and 13-1-236 for responses to discovery may be made only with the approval of the court.
§ 13-1-245
(1) As used in this section:
(a) “Bank” means any state or national bank located in Mississippi.
(b) “Custodian” includes a bank's operations officer and any other person who is an official custodian of the bank's records, as well as their deputies and assistants.
(c) “Customer” means any person or authorized representative of a person who has maintained or is maintaining an account or deposit of any type, or has utilized or is utilizing any service of a bank, or for whom a bank has acted or is acting as a fiduciary in relation to an account or deposit maintained in the person's name.
(d) “Financial record” means any record in any form, or information derived from such record, that is maintained by a bank and pertains to a deposit or account of a customer, a service of the bank utilized by a customer or any other relationship between a customer and the bank.
(e) “Governmental authority” includes the state, any political subdivision, district and court, and any agency, department, officer or authorized employee of any of those entities.
(2) In any state court proceeding, if any party, including a governmental authority, requests a subpoena duces tecum (to be construed hereinafter to include a court order) to require a bank to assemble or provide a customer's financial records, and the bank is not a party to the proceeding or is a party solely by reason of its holding assets of another party defendant with no cause of action alleged against the bank, the party requesting the subpoena shall pay to the court conducting the proceeding all reasonable charges of the bank in searching for, reproducing and transporting the records. This payment shall be made promptly when the copy of the records is delivered to the proper person, as provided in subsection (4) of this section, whether or not the financial records are entered into evidence, and the amount of the payment shall be the amount certified by the custodian in the affidavit required by subsection (6) of this section. The payment of these reasonable charges shall be in addition to any witness fees.
(3) Except as hereinafter provided, when a subpoena duces tecum is served upon a custodian of records of any bank in any state court proceeding in which the bank is not a party, or in which the bank is a party solely by reason of its holding assets of another party defendant with no cause of action alleged against the bank, and such subpoena requires the production of a customer's financial records, it shall be deemed sufficient compliance if the custodian shall furnish a true and correct copy of all records described in the subpoena.
(4) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness and date of subpoena clearly inscribed thereon. The sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows: If the subpoena directs attendance in court, to the clerk of such court or to the judge thereof; if the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at a place designated in the subpoena for the taking of the deposition or at his place of business; in other cases, to the officer, body or tribunal conducting the hearing, at a like address.
(5) Unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition or other hearing, upon the direction of the judge, court, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition or hearing. However, the sealed envelope or wrapper may be opened and the records examined prior to the trial, deposition or hearing upon written consent of all parties or their counsel of record.
(6) The records shall be accompanied by an affidavit of a custodian stating in substance: (a) that the affiant is a duly authorized custodian of the records and has authority to certify such records; (b) that the copy is a true copy of all the records described in the subpoena; (c) that the records were prepared by the personnel of the bank, bank officers or persons acting under the control of either, in the ordinary course of the bank's business at or near the time of the act, condition or event reported therein; and (d) certifying the amount of the reasonable charges of the bank for furnishing such copies. If the bank has none of the records described or only part thereof, the custodian shall so state in the affidavit and furnish the affidavit and such records as are available. The furnishing of the affidavit with respect to such reasonable charges shall be sufficient proof of such expense, which shall be taxed as costs of the court. All reasonable charges paid hereunder shall be remitted to the bank not later than final determination of the suit by the court where the suit is initiated.
(7) The copy of the record shall be admissible in evidence to the same extent as though the original thereof were offered and the custodian had been present and testified to the matters stated in the affidavit. The affidavit shall be admissible in evidence and the matters stated therein shall be presumed true in the absence of a preponderance of evidence to the contrary.
(8) In rare cases where the personal attendance of the custodian may be required, the subpoena duces tecum shall contain a clause which reads: “The procedure authorized pursuant to subsection (3) of this section will not be deemed sufficient compliance with this subpoena.”
(9) In rare cases where the personal attendance of the custodian and the production of the original record may be required, the subpoena duces tecum shall contain a clause which reads: “Original records are required and the procedure authorized pursuant to subsection (3) of this section will not be deemed sufficient compliance with this subpoena.”
If the bank does not have such original record, it shall furnish such copies as it may have and shall be compensated as provided for in this section.
(10) Original records may be withdrawn after introduction into evidence and copies substituted, unless otherwise directed for good cause by the court, judge, officer, body or tribunal conducting the hearing. The custodian may prepare copies of original records in advance of testifying for the purpose of making substitution of the original record, and reasonable charges for furnishing such copies shall be taxed as costs of the court. If copies are not prepared in advance, they can be made and substituted at any time after introduction of the original record, and reasonable charges for furnishing such copies shall be taxed as costs of the court.
§ 13-1-261
(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.
(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.
§ 13-1-263
(1) Except as provided in subsection (2) of this section, the written motion for the examination of a judgment debtor shall be filed, and the proceedings conducted, in the court which rendered the judgment.
(2) If the judgment debtor is an individual who is domiciled in the state but not in the county where the judgment was rendered, or who has changed his domicile to another county after the institution of the suit, the written motion for his examination shall be filed, and the examination conducted, in a court of competent jurisdiction in the county of his then domicile. If the judgment debtor is a nonresident, the petition for his examination shall be filed, and the examination conducted, in a court of competent jurisdiction in any county where he may be found. In any case mentioned in this paragraph, a certified copy of the judgment shall be attached to the written motion for examination.
§ 13-1-265
On ex parte written motion of the judgment creditor, personally or through his attorney, the court shall order the judgment debtor to appear in court for examination at a time fixed by the court, not less than five (5) days from the date of service on him of the motion and order, and to produce any books, papers, and other documents relating to his property described in the motion; provided, however, that satisfaction of the judgment shall discharge the judgment debtor from his responsibility to appear for the examination as ordered by the court.
§ 13-1-267
(1) The debtor shall be sworn to tell the truth in the same manner as a witness in a civil action.
(2) No testimony given by a debtor shall be used in any criminal proceeding against him, except for perjury committed at such examination.
§ 13-1-269
Court costs in connection with the examination shall be taxed against the judgment debtor, except that if the court determines that the creditor invoked the remedy needlessly, the court may tax the costs against the creditor.
§ 13-1-271
If the motion and order have been served personally on the judgment debtor, and he refuses to appear for the examination or to produce his books, papers, or other documents when ordered to do so, or if he refuses to answer any question held pertinent by the court, he may be punished for contempt.
§ 13-1-301
As used in Sections 13-1-301 through 13-1-315 the following terms shall have the definition ascribed to them herein unless the context requires otherwise:
(a) “Deaf person” means any person whose hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the person from understanding oral communications when spoken to in a normal conversational tone. The term further includes, but is not limited to, a person who is mute and a person who is both deaf and mute.
(b) “Qualified interpreter” means an interpreter certified by the national registry of interpreters for the deaf, Mississippi Registry of Interpreters for the Deaf or, in the event a qualified interpreter so certified is not available, an interpreter whose qualifications are otherwise determined. Efforts to obtain the services of a qualified interpreter qualified with a legal skills certificate or a comprehensive skills certificate will be made prior to accepting services of an interpreter with lesser certification. No qualified interpreter may be appointed unless the appointing authority and the deaf person make a preliminary determination that the interpreter is able to interpret accurately the statements of the deaf person and interpret the proceedings in which a deaf person may be involved.
(c) “Oral interpreter” means a person who interprets language through facial and lip movements only and who does not use manual communication. An oral interpreter shall be provided upon the request of a deaf person who does not communicate in sign language. The right of a deaf person to have an interpreter may not be waived except by a deaf person who does not use sign language and who initiates such request for waiver in writing. Such waiver is subject to approval of counsel of such deaf person, if existent, and is subject to approval of the appointing authority.
§ 13-1-303
(1) In any case in law or equity before any court or the grand jury, wherein any deaf person is a party to such action, either as a defendant or witness, the court shall appoint a qualified interpreter of the deaf sign language to interpret the proceedings to the deaf person and interpret his testimony or statements and to assist in preparation with counsel.
(2) Whenever any deaf person is a party in interest, either as a defendant or witness at a proceeding before any department, board, commission, agency or licensing authority of the state or any political subdivision of the state, the department, board, commissioner, agency or licensing authority conducting the proceedings shall appoint a qualified interpreter of the deaf sign language to interpret the proceedings to the deaf person and to interpret any testimony he may give.
(3) In the event that a deaf person has been detained in police custody or has been arrested for any alleged violation of a criminal law, a qualified interpreter or, upon request, an oral interpreter shall be provided by the arresting officer and his superiors prior to any interrogation or taking of a statement from the person.
(4) In the event any interrogation statements in writing are made to the arresting officer by the deaf person with the qualified interpreter present, such interrogation and answers thereto shall be preserved and turned over to the court in the event such person is tried for the alleged offense.
(5) Any statement made by a deaf person to a law enforcement officer may be used as evidence against that person only if the statement was made, offered or elicited in the presence of a qualified interpreter of the deaf sign language. No statements taken from such deaf person prior to the presence of a qualified interpreter may be admissible in court.
§ 13-1-305
If the judge, or any other person charged under the provisions of Sections 13-1-301 through 13-1-315 with providing an interpreter, believes that a person claiming to be entitled to an interpreter may not actually be deaf or hearing impaired, unable to communicate verbally because of his hearing disability, or otherwise not entitled to such services, the judge may, on good cause shown, hold a hearing to determine the extent of the person's handicap or disability and the bona fide need for interpreting services. If it is determined that the person is not entitled to such services, an interpreter shall not be provided. Except in a preliminary hearing in a criminal case, every deaf person whose appearance before a proceeding entitles him to an interpreter shall notify the appointing authority of his disability not less than five (5) days prior to any appearance and shall request at such time the services of an interpreter. When a deaf person reasonably expects to need an interpreter for more than a single day, he shall so notify the appointing authority, and such notification shall be sufficient for the duration of his participation in the proceedings. When a deaf person receives notification of an appearance less than five (5) days before such appearance, he shall provide his notification and request for an interpreter as soon thereafter as practicable.
§ 13-1-307
The duties of the interpreter may include:
(a) Interpreting during court and court-related proceedings, including any and all meetings and conferences between client and his attorney;
(b) Translating or interpreting documents;
(c) Assisting in taking depositions;
(d) Assisting in administering oaths; and
(e) Such other duties as may be required by the judge of the court making the appointment.
§ 13-1-311
It shall be the responsibility of the appointing authority to channel requests for qualified interpreters through (a) the Mississippi Registry of Interpreters for the Deaf; (b) the community services program at the Mississippi School for the Deaf, or, (c) any community resource wherein the appointing authority or the deaf person is knowledgeable that such qualified interpreters can be found. It shall be the responsibility of the community services program at the Mississippi School for the Deaf to compile and update annually a listing of qualified interpreters and to make this listing available to authorities in possible need of interpreter services as provided in Sections 13-1-301 through 13-1-315.
§ 13-1-313
Before participating in any proceedings subsequent to an appointment under the provisions of Sections 13-1-301 through 13-1-315, an interpreter shall make an oath or affirmation that he will make a true interpretation in an understandable manner to the person for whom he is appointed and that he will repeat the statements of such persons in the English language to the best of his skill and judgment. The appointing authority shall provide recess periods as necessary for the interpreter when the interpreter so indicates.
§ 13-1-315
An interpreter appointed under the provisions of Sections 13-1-301 through 13-1-315 shall be entitled to a reasonable fee for such services in addition to actual expenses for travel and transportation. The court or appointing authority may consider standards established by the Mississippi Registry of Interpreters for the Deaf in determining a reasonable fee. When the interpreter is appointed by a court in a criminal case the fee shall be paid out of the general fund of the state, county or municipality, as the case may be. An interpreter's fee in a civil action shall be paid out of funds provided by law or by one or more of the parties as the court may direct and may be taxed ultimately as costs in the discretion of the court. When an interpreter is provided by an appointing authority pursuant to subsection (2) of Section 13-1-303, the fee shall be paid out of funds available to the appointing authority.
§ 13-1-401
The rules of evidence prescribed in Sections 13-1-401 through 13-1-415 shall be applicable in any youth court proceeding and in any criminal prosecution under the following sections of the Mississippi Code of 1972:
(a)Section 97-5-21, Mississippi Code of 1972, relating to seduction of a child under age eighteen (18);
(b)Section 97-5-23, Mississippi Code of 1972, relating to the touching of a child for lustful purposes;
(c)Section 97-5-35, Mississippi Code of 1972, relating to the exploitation of children;
(d)Section 97-5-39, Mississippi Code of 1972, relating to contributing to the neglect or delinquency of a child and felonious battery of a child;
(e)Section 97-5-41, Mississippi Code of 1972, relating to the carnal knowledge of a stepchild, adopted child or child of a cohabitating partner;
(f)Section 97-3-95, Mississippi Code of 1972, relating to sexual battery; or
(g)Section 97-29-59, Mississippi Code of 1972, relating to unnatural intercourse.
§ 13-1-403
(1) An out-of-court statement made by a child under the age of twelve (12) describing any act of child abuse, sexual abuse or any other offense involving an unlawful sexual act, contact, intrusion or penetration performed in the presence of, with, by or on the declarant child, not otherwise admissible, is admissible in evidence to prove the contents thereof, if:
(a) Such statement is made for the purpose of receiving assistance or advice in order to prevent or mitigate the recurrence of the offenses, or in order to obtain advice about the psychological, social or familial consequences associated with the offenses; and
(b) Such statement is made to a person on whom the child should reasonably be able to rely for assistance, counseling or advice; and
(c) The child either:
(i) Is available to testify; or
(ii) Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. A finding of unavailability, except in those situations specified by Rule 804 of the Mississippi Rules of Evidence, shall require a finding by the court, based on the specific behavioral indicators described in Section 13-1-411, that the child's participation in the trial would result in a substantial likelihood of traumatic emotional or mental distress; and
(d) The court finds in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient guarantees of trustworthiness. In determining the trustworthiness of the statement, the court may consider the age and maturity of the child, the nature and duration of the abuse or offense alleged, factors which may detract from the declarant's credibility, information provided about the child's reliability based on the specific behavioral indicators described in Section 13-1-411, or any other factor deemed appropriate.
(2) The defendant shall be notified no later than ten (10) days before trial that an out-of-court statement as described in this section shall be offered in evidence at trial. The notice shall include a written statement of the content of the child's statement, the time the statement was made, the circumstances surrounding the statement which indicate its reliability and such other particulars as necessary to provide full disclosure of the statement.
(3) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section.
§ 13-1-405
(1) Upon motion and hearing in camera, the trial court may order that the testimony of a child under the age of sixteen (16) that an unlawful sexual act, contact, intrusion, penetration or other sexual offense was committed upon him or her, or that he or she witnessed its perpetration upon another child, be taken outside of the courtroom and shown in the courtroom by means of closed circuit television, upon a finding based on specific behavioral indicators described in Section 13-1-411, that there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify in open court.
(2) The motion may be filed by the child, his attorney, parent, legal guardian or guardian ad litem, or any party to the case. The court may also raise the matter on its own motion.
(3) Upon stipulation of the parties, the court may appoint a person who is qualified as an expert and who has dealt with the child in a therapeutic setting concerning the offense to aid in formulating methods of questioning the child and to assist the court in interpreting the answers of the child.
(4) Closed circuit television testimony may be taken by any method not inconsistent with the Mississippi Rules of Civil Procedure and the Mississippi Uniform Criminal Rules of Circuit Court Practice. After a determination that the defendant's presence would cause a substantial likelihood of traumatic emotional or mental distress to the child, the judge may exclude the defendant from the room where the testimony is taken. In any case in which the defendant is so excluded, arrangements must be made for the defense attorney to be in continual contact with the defendant by any appropriate private electronic or telephonic method throughout the questioning. The defendant and the jury must be able to observe the demeanor of the child witness at all times during the questioning.
(5) The court shall make specific findings of fact, on the record, as to the basis for its rulings under this section.
(6) All parties must be represented by counsel at any taking of any testimony under this section.
§ 13-1-407
(1) On motion and hearing in camera and a finding based on information placed on the record which was subject to cross-examination:
(a) That there is a substantial likelihood, based on specific behavioral indicators described in Section 13-1-411 exhibited by the child, that a child who is under the age of sixteen (16) would suffer traumatic emotional or mental distress if he were required to testify in open court; or
(b) That such child is otherwise unavailable; a trial court may order the videotaping of the testimony of the victim or witness in a case in which the occurrence or non-occurrence of sexual abuse or child abuse is a material fact, which videotaped testimony is to be utilized at trial in lieu of testimony in open court.
(2) The motion may be made by:
(a) The child, or the attorney, parent, legal guardian or guardian ad litem of the child;
(b) The trial judge acting at his own discretion; or
(c) Any party to the case.
(3) The judge shall preside, or shall appoint a special master to preside, at the videotaping unless the following conditions are met:
(a) The child is represented by a guardian ad litem or counsel;
(b) The child's representative and the counsel for each party stipulate that the requirement for the presence of the judge or special master may be waived; and
(c) The court finds, after a hearing, that the presence of a judge or special master is not necessary to protect the child.
(4) The defendant and the defendant's counsel shall be present at the videotaping, unless the defendant has waived this right. Provided, however, that on motion of a party, or of the child's representative and hearing in camera and a finding based on information placed on the record which was subject to cross-examination that there is a substantial likelihood, based on specific behavioral indicators exhibited by the child, as described in Section 13-1-411, that the child would suffer traumatic emotional or mental distress if he or she were required to testify in the presence of an adult who is alleged to have abused the child, or to have participated in, or concealed such abuse, the court may require that adult, including without limitation a defendant, to view the testimony from outside the presence of the child by means of a two-way mirror or another similar method that will ensure that the defendant can directly observe and hear the testimony of the child, but that the child cannot hear or see the adult. If the defendant is excluded from the room in which testimony is being taken, the defendant and the attorney for the defendant may communicate by any appropriate private electronic or telephonic method.
(5) All questioning shall be done by attorneys for the prosecution and the defense; however, upon stipulation of all parties, the court may appoint a person who is qualified as an expert and who has dealt with the child in a therapeutic setting concerning the offense to aid the court throughout proceedings conducted under this section.
(6) The motion for the taking of videotaped testimony may be made at any time with three (3) days' written notice of the time and place of the taking of the testimony provided to all parties to the proceeding, to the child and to the child's representative or guardian.
(7) Any videotape which is made pursuant to this section is subject to a protective order of the court for the purpose of protecting the privacy of the child. The court shall order the destruction of a videotape made pursuant to this section after five (5) years have elapsed since the entry of the judgment in the case in which the videotape was made. However, such order may be made before the expiration of five (5) years upon motion filed by the child, his attorney, parent, legal guardian or guardian ad litem after notice to the defendant. In no event shall such a videotape be destroyed before a final judgment has been rendered on an appeal.
(8) The court shall make specific findings of fact, on the record, as to the basis for its rulings under this section.
(9) All parties must be represented by counsel at any taking of any testimony under this section.
§ 13-1-409
(1) If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the testimony of a child under the age of twelve (12) in a case in which the occurrence or non-occurrence of physical or sexual abuse of a child is a material issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify, based on such expertise, in the form of an opinion or otherwise.
(2) The facts or data in the particular case upon which such an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences about the occurrence or non-occurrence of physical or sexual abuse of children, or about children who may be victims or observers of such abuse, the facts or data need not be admissible in evidence.
(3) Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(4) The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
(5) The court, in a case where the occurrence or non-occurrence of physical or sexual child abuse is a material issue, may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nomination. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.
(6) In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(7) Nothing in this subsection limits the parties in calling expert witnesses of their own selection.
§ 13-1-411
The phrase “specific behavioral indicators” when used herein to refer to evidence (regardless of admissibility) that a child has suffered physical or sexual abuse or might suffer traumatic emotional or mental distress if required to testify in court, shall include, by way of illustration and not of limitation, indications of physical or psychological trauma which are (a) well defined, (b) positively correlated or causally linked with the likelihood of traumatic emotional or mental distress on testifying, and (c) rarely, if at all, present in children who have not suffered child abuse, considering the combination or intensity present in the child at issue.
The evidence described in this section shall be provided by competent witnesses, including but not limited to child psychologists, child psychiatrists and other qualified witnesses.
§ 13-1-413
Sections 13-1-401 through 13-1-415 do not in any way affect any court's power to order any person to refrain from contacting, or being in the presence of, any child.
§ 13-1-415
The Mississippi Supreme Court may, by rule, provide procedures to implement Sections 13-1-401 through 13-1-415.
Chapter 3 Process, Notice and Publication
§ 13-3-1
The law of process as declared in this chapter, except where its provisions are provided for by the Mississippi Rules of Civil Procedure or by the nature of the subject matter, shall govern in all courts.
§ 13-3-3
The style of all process shall be, “The State of Mississippi.” It shall not be necessary that any process bear teste in the name of any judge or of any term of the court, but all process, except where otherwise provided, shall be issued and signed by the clerk of the court, with the seal of his office affixed, and shall bear date of the day on which the process shall be issued.
§ 13-3-5
(1) The process to bring in defendants in all civil actions in all courts except justice court shall be a summons, the form, issuance, service, waiver, return, amendment and time limits of which shall be governed by the Mississippi Rules of Civil Procedure.
(2) The process to bring in defendants in all civil actions in justice court shall be a summons which shall be served in one of the following modes:
First. -- Upon the defendant personally, if to be found in the county, by handing him a true copy of the process.
Second. -- If the defendant cannot himself be found in the county, then by leaving a true copy of the process at his usual place of abode, with his wife or some other person of his family above the age of sixteen (16) years, and willing to receive such copy.
Third. -- If the defendant cannot himself be found, and if no person of his family aged sixteen (16) years can be found at his usual place of abode who is willing to receive such copy, then by posting a true copy on a door of the defendant's usual place of abode; provided, however, that if this mode is used when the defendant's usual place of abode is a multi-family dwelling, a copy of the summons shall be mailed to the defendant by the clerk of the court upon return of service.
§ 13-3-15
Upon the request of the plaintiff, separate or additional summons shall issue against any defendants. When the defendant shall not be found, the plaintiff may have an attachment against the estate of the defendant. If, upon such attachment, the sheriff shall seize or attach any property of the defendant, the same proceedings shall thereafter be had as if the suit had been originally commenced by attachment.
§ 13-3-17
Substitution of parties in case of death of a party shall be governed by the Mississippi Rules of Civil Procedure.
§ 13-3-25
When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the complainant may have publication of summons for them and such proceedings shall be had thereupon in all respects as are authorized in the case of a nonresident defendant. When the parties in interest are unknown, and affidavit of that fact be filed, they may be made parties by publication to them as unknown parties in interest.
§ 13-3-27
Publication of summons in all cases and in every court, when authorized by law, shall be made as prescribed in the Mississippi Rules of Civil Procedure.
§ 13-3-31
(1) Whenever it is required by law that any summons, order, citation, advertisement or other legal notice shall be published in a newspaper in this state, it shall mean, in addition to any other requirements imposed by law, publication in some newspaper which:
(a) Maintains a general circulation predominantly to bona fide paying subscribers within the political subdivision within which publication of such legal notice is required. The term “general circulation” means numerically substantial, geographically widespread, demographically diversified circulation to bona fide paying subscribers. In no event shall the term “general circulation” be interpreted to require that legal notices be published in a newspaper having the greatest circulation. The term “bona fide paying subscribers” means persons who have subscribed at a subscription rate which is not nominal, whether by mail subscriptions, purchases through dealers and carriers, street vendors and counter sellers, or any combination thereof, but shall not include free circulation, sales at a token or nominal subscription price and sales in bulk for purposes other than for resale for individual subscribers.
(b) Maintains a legitimate list of its bona fide paying subscribers by the following categories where applicable:
(i) Mail subscribers;
(ii) Dealers and carriers; and
(iii) Street vendors and counter sellers.
(c) Is not published primarily for advertising purposes and has not contained more than seventy-five percent (75%) advertising in more than one-half ( 1/2 ) of its issues during the period of twelve (12) months next prior to the first publication of any legal notice therein, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues.
(d) Has been established and published continuously for at least twelve (12) months next prior to the first publication of such matter to be published, is regularly issued at stated intervals no less frequently than once a week, bears a date of issue, and is numbered consecutively; provided, however, that publication on legal holidays of this state or of the United States and on Saturdays and Sundays shall not be required, and failure to publish not more than two (2) regular issues in any calendar year shall not disqualify a paper otherwise qualified.
(e) Is issued from a known office of publication, which shall be the principal public business office of the newspaper and need not be the place at which the newspaper's printing presses are physically located. A newspaper shall be deemed to be “published” at the place where its known office of publication is located.
(f) Is formed of printed sheets. However, the word “printed” does not include reproduction by the stencil, mimeograph or hectograph process.
(g) Is originated and published for the dissemination of current news and intelligence of varied, broad and general public interest, announcements and notices, opinions as editorials on a regular or irregular basis, and advertising and miscellaneous reading matter.
(h) Is not designed primarily for free circulation or for circulation at nominal rates.
(2) “Newspaper,” as used in this section, shall not include a newspaper, publication, or periodical which is published, sponsored by, is directly supported financially by, or is published to further the interests of, or is directed to, or has a circulation restricted in whole or in part to any particular sect, denomination, labor or fraternal organization or other special group or class of citizens, or which primarily contains information of a specialized nature rather than information of varied, broad and general interest to the general public, or which is directed to any particular geographical portion of any given political subdivision within which publication of such legal notice is required, rather than to such political subdivision as a whole. No newspaper otherwise qualified under this section shall be disqualified from publishing legal notices for the sole reason that such newspaper does not have as great a circulation as some other newspaper publishing in the same political subdivision.
(3) In the event of the discontinuance of the publication of all newspapers in any county qualified under this section to publish legal notices, any other such newspaper published in the same county, regardless of the length of time it has been published, shall be deemed qualified to publish such legal notices, provided such newspaper meets all requirements of this section other than the requirements of subsection (1)(d) of this section.
(4) A newspaper otherwise qualified under this section which is published in a municipality whose corporate limits encompass territory in more than one (1) county shall be qualified to publish legal notices, including foreclosure sale notices as described in Section 89-1-55, for any county a portion of whose territory is included within the municipality, irrespective of the actual physical location within the municipality of the principal public business office of the newspaper.
§ 13-3-32
All newspapers which were qualified to publish legal notices and which were publishing legal notices prior to July 1, 1976, shall be presumed to qualify under Section 13-3-31 unless and until a determination has been made by competent authority that such newspaper fails to meet the requirements and provisions of Section 13-3-31.
§ 13-3-37
The sheriff shall mark on all process the day of the receipt thereof by him, and he shall return the same promptly and in any event within the time during which the person served must respond to the process, with a written statement of his proceedings thereon, and of his fees, for serving it. For failing to note the time of the receipt of process, or for failing to return the same, the sheriff shall forfeit to the party aggrieved the sum of One Hundred Dollars ($100.00), and shall be liable for all damages, and the court may enforce return of the process by fine and imprisonment for contempt. Whenever a sheriff of any county shall receive from another county any writ or other process directed to him, he shall not be liable for a failure to return the same to the county from which the same was issued if he shall show to the court that he mailed the same in the post office, directed to the clerk of the court by whom the same was issued, at least two (2) days before the sitting of the court to which the same was returnable.
§ 13-3-41
All persons, firms, copartnerships or corporations carrying on business in the State of Mississippi, by or through trustees or attorneys in fact, may be served with process in all suits or proceedings in any court, by serving a copy of such process upon an agent of such trustees or attorneys in fact, in the same manner as is now provided for service of process upon foreign corporations.
§ 13-3-49
If the defendant in any suit or legal proceeding be a corporation, process may be served on the president or other head of the corporation, upon the cashier, secretary, treasurer, clerk, or agent of the corporation, or upon any one of the directors of such corporation. If the defendant corporation be a sleeping-car company, process may be served upon any conductor thereof. If the defendant corporation be a steamboat company, process may be served upon the captain or other officer of a boat thereof. If no such person or persons be found in the county, then it shall be sufficient to post a true copy of the process on the door of the office or principal place of business of the corporation. In suits against railroads, sleeping-car, telegraph, telephone, express, steamboat, and insurance companies or corporations, or in suits against a receiver or receivers in charge of the property of any such companies or corporations, the process may be served on any agent of the defendant or sent to any county in which the office or principal place of business may be located, and there served as herein directed and authorized, or process may be served on any one of the foregoing officers of such corporation or company, and upon the secretary, cashier, treasurer, clerk, depot agent, attorney or any other officer or agent of such receiver or receivers, or upon them in person. When any writ or process against such corporation, company, receiver or receivers has been returned executed, the defendant or defendants shall be considered in court, and the action shall proceed as actions against natural persons. All process and notices to be served upon such companies, corporations, or receivers may be served as herein directed.
§ 13-3-53
If there be two or more executors or administrators of the same estate, if process cannot be served on all of them in suits against them, service on one shall be sufficient to authorize a judgment against all.
§ 13-3-55
A partnership may sue or be sued in the partnership name, or in the names of the individuals composing the partnership, or both and service of process on any partner shall be sufficient to maintain the suit against all the partners so as to bind the assets of the partnership and of the individual summoned.
§ 13-3-57
Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state. Service of summons and process upon the defendant shall be had or made as is provided by the Mississippi Rules of Civil Procedure.
Any such cause of action against any such nonresident, in the event of death or inability to act for itself or himself, shall survive against the executor, administrator, receiver, trustee, or any other selected or appointed representative of such nonresident. Service of process or summons may be had or made upon such nonresident executor, administrator, receiver, trustee or any other selected or appointed representative of such nonresident as is provided by the Mississippi Rules of Civil Procedure, and when such process or summons is served, made or had against the nonresident executor, administrator, receiver, trustee or other selected or appointed representative of such nonresident it shall be deemed sufficient service of such summons or process to give any court in this state in which such action may be filed, in accordance with the provisions of the statutes of the State of Mississippi or the Mississippi Rules of Civil Procedure, jurisdiction over the cause of action and over such nonresident executor, administrator, receiver, trustee or other selected or appointed representative of such nonresident insofar as such cause of action is involved.
The provisions of this section shall likewise apply to any person who is a nonresident at the time any action or proceeding is commenced against him even though said person was a resident at the time any action or proceeding accrued against him.
§ 13-3-63
The acceptance by a nonresident of the rights and privileges conferred by the provisions of this section, as evidenced by his operating, either in person or by agent or employee, a motor vehicle upon any public street, road or highway of this state, or elsewhere in this state, or the operation by a nonresident of a motor vehicle on any public street, road or highway of this state, or elsewhere in this state, other than under this section, shall be deemed equivalent to an appointment by such nonresident of the Secretary of State of the State of Mississippi to be his true and lawful attorney, upon whom may be served all lawful processes or summonses in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such street, road or highway, or elsewhere in this state, and said acceptance or operation shall be a signification of his agreement that any such process or summons against him which is so served shall be of the same legal force and validity as if served on him personally. Service of such process or summons shall be made by the sheriff of Hinds County, upon prepayment of the fees to which he is entitled by law, by serving two (2) copies of the process or summons for each nonresident defendant, with a fee of Fifteen Dollars ($15.00) for each such defendant on the Secretary of State or by leaving two (2) copies of said process or summons with the fee in the office of the Secretary of State, and such service shall be service upon said nonresident defendant with the same force and effect as if such nonresident had been personally served with such process or summons within the State of Mississippi. One (1) of the copies of such process or summons shall be preserved by the Secretary of State as a record of his office. Notice of such service, together with a copy of the process or summons, shall be mailed forthwith as certified or registered mail, restricted for delivery to addressee only and with postage prepaid, by the Secretary of State to each such nonresident defendant at his last known address, which address shall be written on the process or summons upon the issuance thereof by the clerk of the court wherein the action is pending, or notice of such service and copy of process or summons actually shall be delivered to the said defendant. The defendant's return receipt or evidence of defendant's refusal to accept delivery of such certified or registered mail, in case such notice and copy of process or summons are sent by certified or registered mail, or affidavit of the person delivering such notice and copy of process or summons, in case such notice and copy of process or summons actually are delivered, shall be filed in the court wherein such action is pending before judgment can be entered against such nonresident defendant. The Secretary of State, upon receipt of such return receipt or evidence of the refusal of such defendant to accept delivery of such certified or registered mail, shall promptly return same to the clerk of the court wherein such action is pending, and the said clerk of the court shall promptly file and preserve same among the records of such action or proceeding. The court in which the action is pending may order such continuance as may be necessary to afford the defendant reasonable opportunity to defend the action.
Any cause of action arising out of such accident or collision against any such nonresident, in case of the death of such nonresident, shall survive against his administrator, executor or other personal representative of his estate, and service of all necessary and lawful process or summons, when had or obtained upon any such nonresident owner, nonresident operator or agent or employee, or upon the executor, administrator or other legal representative of the estate of such nonresident owner or nonresident operator, in the manner as hereinbefore provided, for the service of all lawful processes or summonses, herein, shall be deemed sufficient service of process or summons to give any court of this state, in which such action may be filed in accordance with the statutes of the State of Mississippi, jurisdiction over the cause of action and over the nonresident owner, nonresident operator or agent or employee, or the nonresident executor, or administrator of such nonresident owner or nonresident operator, defendant or defendants, and shall warrant and authorize personal judgment against such nonresident owner, nonresident operator, agent, employee, executor or administrator or other legal representative of the estate of such nonresident owner or nonresident operator, defendant or defendants, in the event the plaintiff in such cause of action shall prevail.
The agency or relationship created under the provisions of this section by and between the nonresident owner or nonresident operator of a motor vehicle operating upon the public road, street or highway of this state, or elsewhere in this state, as hereinbefore set forth, in the event of the death of such nonresident owner or nonresident operator of such motor vehicle, shall survive and continue and extend to his executor, administrator or other legal representative of his estate, and the Secretary of State of the State of Mississippi shall be in the same position and relationship with respect to the executor, administrator or other legal representative of the estate of such nonresident owner or nonresident operator of such motor vehicle, as he was in or would have been in with the nonresident owner or nonresident operator of said motor vehicle, had such nonresident owner or nonresident operator survived, and in any action arising or growing out of such accident or collision in which such nonresident owner or nonresident operator of a motor vehicle may be involved while operating a motor vehicle on such street, road or highway or elsewhere in this state, where the nonresident owner or nonresident operator of such motor vehicle has died prior to the commencement of an action against him because of or growing out of such accident or collision, service of process or summons may be had or made upon the nonresident executor, administrator or other legal representative of the estate of such nonresident owner or operator of the motor vehicle involved in such accident or collision, in the same manner and upon the same notice as hereinbefore provided in the case of process or summons upon the nonresident owner or nonresident operator of such motor vehicle. When such process or summons is served, made or had against the nonresident executor or administrator or such nonresident owner or such nonresident operator of such motor vehicle involved in such accident or collision, it shall be deemed sufficient service of such summons or process to give any court in this state in which such action may be filed, in accordance with the provisions of the statutes of the State of Mississippi, jurisdiction over the cause of action and over such nonresident executor or administrator of such nonresident owner or operator of such motor vehicle insofar as such cause of action is involved.
The provisions of this section shall likewise apply to any person who is a nonresident at the time any action or proceeding is commenced against him, even though said person was a resident at the time any action or proceeding accrued against him.
§ 13-3-69
If any matter required to be inserted in or indorsed on any process be omitted, such process shall not on that account be void, but it may be set aside as irregular, or amended on such terms as the court shall deem proper. The amendment may be made upon an application to set aside or quash the writ.
§ 13-3-73
When the sheriff shall return, on any process, that he has been kept off by force, the plaintiff may issue an alias or pluries, as the case may be, or he may proceed in the action against the defendant as if the process had been returned executed.
§ 13-3-75
If any process be executed, and for want of a return thereof other process be issued, the sheriff or other officer shall not execute the subsequent process, but shall return the first process by him executed, if it be in his possession, and, if it be not in his possession, he shall return the subsequent process, with an indorsement of the execution of the first process, and how it was executed, on which there shall be the same proceedings as if the said first process had been duly returned.
§ 13-3-77
The sheriff or other proper officer of a county may execute process out of his county, in case the person to be served or property to be seized was in the officer's county when the writ was received, but had removed or been carried into another county before its execution. In such case the officer shall state the facts in his return, and the writ and return shall have the same effect as if the process had been returned not executed and a testatum or duplicate writ had been issued to and executed and returned by an officer of the county where served.
§ 13-3-81
If there be no sheriff in any county, or if good cause of exception exists against him, by reason of his being a party to or interested in the suit, or otherwise, the process may be directed to any justice court judge of the county, who shall be bound to execute the same, and to do all things which the sheriff would be bound to do if no exception existed against him. In case of any neglect or breach of such duty, the justice court judge shall be liable to the same penalties and subject to the same actions and remedies as sheriffs are subject to in like cases.
§ 13-3-83
All notices provided for by law appertaining to actions, suits or proceedings of any kind in any court shall be served and returned by the sheriff or any constable of the county, or the marshal of any city, town or village therein in which such notices are to be served, to whom such notices may be delivered for that purpose. However, service of summonses and subpoenas in all courts except justice court shall be governed by the Mississippi Rules of Civil Procedure and in every instance, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served and filed in accordance with the provisions of the Mississippi Rules of Civil Procedure.
§ 13-3-85
In all cases where motions are made against officers, or officers and their sureties, for neglect of official duty under any law, five days' notice shall be given by summons, to be served as in other cases, and this shall apply to motions against the personal representative of a deceased officer.
§ 13-3-87
The return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties, but the officer himself shall not be permitted to question its truth.
§ 13-3-91
Where a judgment or decree is reversed on appeal taken by defendant for the want of service, or because of defective service of process, a new summons or citation need not be issued or served, but the defendant shall, without such process or service, be presumed to have entered his appearance to the cause in the court from which the appeal was taken when the mandate shall be filed therein.
§ 13-3-93
The first process, in all civil actions, and in all courts, to compel the attendance of a witness, shall be a subpoena, the procedural aspects of which shall be governed by the Mississippi Rules of Civil Procedure.
§ 13-3-103
If any person subpoenaed as a witness shall fail to appear and attend as required, an attachment shall be issued by order of the court or other authority before which he was subpoenaed to appear, returnable at such time as the court or authority may appoint. The court or authority shall, on ordering the attachment, direct whether the witness shall enter into bond for his appearance, and in what sum, and whether with or without sureties, which bond the sheriff, or other officer by whom the attachment is executed, is authorized to take, payable to the state. In case the witness shall appear in answer to the attachment, the court may discharge him therefrom, on good cause shown, or may require him to enter into recognizance or bond for his appearance until discharged, to testify in the cause. In case the witness shall not appear, in pursuance of his recognizance or bond, the same proceedings shall be had as upon the forfeiture of a recognizance in a criminal case.
§ 13-3-105
Every witness subpoenaed in any case, civil or criminal, shall attend, from day to day, and from term to term without further notice, until discharged by the court or by the party at whose instance he was subpoenaed, and in default thereof he shall be fined by the court not more than Five Hundred Dollars ($500.00), and a scire facias shall issue thereon, requiring him to appear at the next term of the court, to show cause why the fine should not be made absolute. If cause be not then shown, the fine shall be made final. In criminal cases, the court may cause the witnesses on either side to be bound by bond or recognizance to appear and testify until discharged.
§ 13-3-107
If a civil suit shall be settled in vacation, notice thereof shall be given to the witnesses subpoenaed to appear. If such notice is not given, they shall be entitled to the same compensation for their subsequent attendance in pursuance of the subpoena as if the suit had not been settled.
§ 13-3-109
The Clerk of the Supreme Court shall issue all process which may be ordered to issue by the court or any judge thereof. All process issuing from said court or on the order of any judge thereof, or which may be returnable therein, shall be under the seal of the court, and be signed by the clerk thereof, and may be directed to the sheriff or other proper officer of any county, who shall execute and return the same according to the command thereof. Whenever any such process shall not be executed or not returned, an alias may be issued by the clerk on the application of the person who sued out the former process.
§ 13-3-111
The clerks of all courts of law or equity, after the adjournment of the court for the term shall, at the request and cost of the owner of the judgment or decree or his attorney, issue executions on all judgments and decrees rendered therein, and place the same in the hands of the sheriff of the county. The sheriff shall effectuate any execution on a judgment. If requested by such owner, they shall issue executions directed to the sheriff of any other county, and shall deliver the same to the owner or his attorney.
§ 13-3-113
Writs of execution shall bear date and be issued in the same manner as original process, and shall be made returnable on the first day of the next term of the court in which the judgment or decree was rendered, if there be fifteen days between the issuance and return thereof, and, if not, on the first day of the term next thereafter. Such execution may be directed to the sheriff or other proper officer of any county, who shall serve and execute the same, and make return thereof to the court in which the judgment or decree was rendered.
§ 13-3-115
If a first writ of execution shall not have been returned and shall not have been executed, the clerk may issue another execution at the cost of any party in whose favor the execution was issued, if such party shall desire to take out another execution.
§ 13-3-117
When one judgment has been recovered against several defendants, execution shall issue thereon against all the defendants, and not otherwise.
§ 13-3-119
If one or more of several defendants have died before the issuance of a writ of execution, and a revivor shall not have been had, the fact of the death shall be noted on the writ, and the property of the survivors only shall be liable to the execution in such case.
§ 13-3-121
In cases decided in the Supreme Court, or dismissed or otherwise disposed of, the clerk of the court may issue executions for costs accrued in the Supreme Court, in excess of the filing fee, in the same manner that the clerks of the circuit courts are authorized to issue executions against any party liable therefor. Such executions may be directed to the sheriff of any county, and shall be returned in the same manner and under like penalties as in case of executions returnable to the circuit court.
§ 13-3-123
In case of a levy of an attachment on real estate in the occupancy of any person, the officer shall go to the house or upon the land of the defendant, and there declare that he attaches the same at the suit of the plaintiff, but if the land be unoccupied, or if the process be an execution, he may attach or levy upon the same by returning that he has attached or levied upon the land, describing it by numbers or otherwise properly, and, if the process be an attachment, stating that the land is unoccupied; and in all cases the return of the officer shall be conclusive of the facts stated therein, except on timely motion to quash.
§ 13-3-125
If the levy be upon personal property the officer shall take the same into his possession and dispose of it according to law.
§ 13-3-127
In case an attachment be levied on rights, credits, and choses in action, the officer shall take into his possession the books of accounts and other evidences of debt belonging to the defendant, and if the plaintiff so direct, he shall summon all persons appearing to be indebted to the defendant, or to have effects of his in their hands, as garnishees, in the manner prescribed by law.
§ 13-3-129
In case of the levy of an execution or attachment on the stock, shares, or interest of the defendant in any corporation or joint stock company, the officer shall go to the office or principal place of business of the corporation or company, and there declare that he attaches or levies upon the stock, shares, or interest of the defendant therein at the suit of the plaintiff. The officer shall demand of any officer, agent, or clerk of such corporation or company there present, and who is not the defendant, a statement in writing, under oath, of the amount of the defendant's stock, the number of his shares, or extent of his interest in such corporation or company, and shall leave with the officer, agent, or clerk, a copy of the writ. If no such officer, agent, or clerk be present, the officer shall post conspicuously at such office or place of business a copy of the writ, with a statement therewith that he has attached or levied upon the stock, shares, or interest of the defendant at the suit of the plaintiff, and that he demands of the corporation or company the statement, under oath, of the defendant's stock, share, or interest therein. The stock, shares, and interest of the defendant in the corporation or company, including all dividends that may accrue after such levy, shall be bound by the lien of the execution or attachment. The corporation or company shall, within a reasonable time, not longer than ten days after the levy, deliver to the officer a statement in writing, under oath, of the particulars demanded by the officer, and of the value of the defendant's stock, shares, or interest, and in case the corporation or company shall neglect or refuse to do so, or shall wilfully make any false statement thereof, such corporation or company shall be liable to the plaintiff for the full amount of the judgment or decree, or of such judgment as the plaintiff shall recover if the process be an attachment. The failure of the corporation or company to make such statement shall not affect the right of the officer to sell the stock, shares, or interest of the defendant.
§ 13-3-131
When a defendant in execution shall own or be entitled to an undivided interest in any property not exclusively in his own possession, such interest may be levied on and sold by the sheriff without taking the property into actual possession, and such sale shall vest in the purchaser all the interest of the defendant in such property.
§ 13-3-133
(1) Money, banknotes, bills, evidences of debt circulating as money, and any judgment or decree belonging to the defendant, may be taken under an execution or attachment and sold or disposed of according to law, or applied to the payment of the execution or in satisfaction of the judgment in attachment.
(2) The officer serving a writ may endorse all warrants, checks or drafts seized under execution or attachment. The officer serving the writ shall endorse on the warrant, check or draft the day and date it was received, shall take into possession, as they shall become due to the judgment debtor, monies, checks, drafts, warrants, vouchers or other evidences of indebtedness, and shall issue a receipt to the paying, disbursing or auditing officer therefor, and shall endorse, in the name of the judgment debtor, any and all checks, drafts, warrants, vouchers or other evidences of indebtedness delivered under the writ. The seized instruments may be negotiated and the proceeds thereof, or so much thereof as necessary, shall be applied to the payment of the execution or in satisfaction of the judgment in attachment in order of priority.
§ 13-3-135
The purchaser of any chose in action, stock, share, interest, judgment, or decree of the defendant, sold under execution or attachment, shall become the owner thereof, in the same manner as if it had been regularly assigned to him by the defendant.
§ 13-3-137
An execution shall nor be levied upon a growing crop, nor shall the same be seized under an attachment.
§ 13-3-139
Writs of executions, where there is no judgment lien, shall bind the property of defendant only from the time of the levy thereof. If two or more writs shall be delivered to the officer for execution against the same person, that which was first delivered shall be the first levied and satisfied. It shall be the duty of the sheriff or other officer, on receipt of an execution, to indorse thereon the day of the month and the year and the hour when he received the same. For a failure to make such indorsement, the sheriff or other officer shall be liable to a penalty of One Hundred Dollars ($100.00), to the use of the plaintiff, recoverable by motion before the court from which the execution issued, and the sheriff or other officer shall, moreover, be liable for all damages sustained by any party aggrieved.
§ 13-3-141
When a sheriff or other officer shall levy an execution on livestock, he shall provide for its sustenance until sold or otherwise legally discharged from the execution. Upon the return of the execution, the court, in cases where the compensation is not fixed by law, shall settle and adjust what the officer shall be allowed for his expenses incurred by providing for the stock, and also reasonable expenses of keeping personal property levied on by him, and the same shall be taxed as costs. The officer may retain the same out of the money arising from the sale of the property.
§ 13-3-143
When the executor or administrator of a plaintiff who dies before satisfaction of his judgment shall file with the clerk a copy of his letters testamentary or of administration, duly certified, execution may be issued on the judgment as if such death had not occurred, and the clerk shall indorse on the execution the fact of the death of the plaintiff, and that the execution is at the instance of his executor or administrator, stating the name of the executor or administrator. When an administrator, guardian, trustee, or other person acting in a fiduciary or official capacity, who recovered a judgment, shall die, resign, or be removed without having obtained satisfaction thereof, his successor may have execution of the judgment in the same manner, without revival of the judgment by scire facias.
§ 13-3-145
The death of one or more of several plaintiffs in a judgment shall not prevent the issuance of execution in favor of the survivors.
§ 13-3-147
The assignee of a judgment, where the plaintiff has died, may have execution thereof for his use as if such death had not occurred, upon filing with the clerk his affidavit of the death of the plaintiff and the assignment, and, where the plaintiff has not died, the assignee of a judgment may have an execution for his use in the same manner.
§ 13-3-149
The death of any plaintiff or defendant after the issuance or the levy of an execution on personal or real estate, shall not affect the duty of the officer making the levy to proceed and sell as if such death had not occurred.
§ 13-3-151
After one year from the death of any defendant in a judgment for money, execution thereof may be had by leave of the court rendering the judgment, or of the judge thereof in vacation, upon cause shown, against any property on which such judgment was a lien at the time of the death of the defendant, and a sale of such property may be made in the same manner and with the same effect as if the defendant were living. In case of the death of the defendant in a judgment for the recovery of real or personal property, execution may be had without revival, in the same manner as if the defendant had not died.
§ 13-3-153
Those provisions of the Mississippi Code of 1972 relating to the execution of judgments without revival shall not prevent a revival in any case by a motion to revive judgment.
§ 13-3-155
The clerk of the circuit court in whose office any judgment or decree shall be enrolled, may issue execution and writs of garnishment thereon, directed to the sheriff of his county, returnable before the court which rendered the judgment or decree.
§ 13-3-157
If the sheriff shall levy an execution, attachment, or writ of seizure for the purchase-money on any personal property, and a doubt shall arise whether the right to the property be in the defendant or not, the sheriff may demand of the plaintiff a bond with sufficient sureties, payable to the officer, in a penalty equal to double the value of the property, conditioned that the obligors therein will indemnify and save harmless the officer against all damages which he may sustain in consequence of the seizure or sale of the property, and will pay to and satisfy any person claiming title to the property all damages which such person may sustain in consequence of the seizure or sale. If such bond be not given on or before the day of the sale or the return day of the attachment, the sheriff shall be justified in releasing the levy and delivering the property to the party from whose possession it was taken; but the plaintiff or his agent or attorney shall have reasonable notice, in writing, before the day of sale or return day of the writ, that the bond is required.
However, in instances where a warrant is issued by the Chairman of the State Tax Commission, as the commissioner, under the authority of any statute by which such commissioner is authorized to issue such warrants, and where the officer to whom such warrant is directed shall demand of the commissioner an indemnifying bond under the circumstances and conditions hereinbefore provided, the commissioner is hereby authorized to execute such indemnifying bond demanded and pay all obligations which may accrue by reason of the execution of such bond out of the funds appropriated by the Legislature to defray the expenses of the State Tax Commission.
§ 13-3-159
If the bond and security required under Section 13-3-157 be given, it shall be returned with the writ, and the person claiming the property levied on may prosecute a suit upon the bond, with the name of the payee or his representatives, for the use of the claimant, and recover such damages as he may sustain by the seizure or sale of the property or levy of process; and the claimant shall, after the due execution of the bond, be barred of any action against the officer levying the process, unless the obligors in the bond shall be or become insolvent, or the bond be otherwise invalid.
§ 13-3-161
All sales by any sheriff by virtue of an execution or other process, when not issued by a justice court, shall be made at the courthouse of the county. The sheriff shall effectuate any execution on a judgment. However, personal property too cumbersome to be removed, may be sold at the place where the same may be, or at any convenient place. Cattle, sheep, or stock, other than horses and mules, may be sold at any public place in the neighborhood of the defendant's residence.
Sales of personal property under execution or other process from a justice court may be made at any convenient point in the county where it is found, or at the courthouse of the county. The sheriff shall effectuate any execution on a judgment. The sale of lands under executions or other process from such courts shall be made as under execution from the circuit courts.
§ 13-3-163
(1) Sales of land may be made on any day except Sunday and any legal holiday as defined by Section 3-3-7, Mississippi Code of 1972, and shall be advertised by the plaintiff in a newspaper published in the county, once in each week for three (3) successive weeks, or, if no newspaper is so published, in some newspaper having a general circulation therein once in each week for three (3) successive weeks.
(2) In addition to effectuating the advertisement, any expense or cost incurred by advertising and providing notice for the sale of land pursuant to subsection (1) of this section in justice court shall be paid by the plaintiff, and said expenses shall be taxed as costs.
§ 13-3-165
(1) Sales of personalty may be made on any day except Sunday and any legal holiday as defined by Section 3-3-7, Mississippi Code of 1972, and shall be advertised by the plaintiff ten (10) days before the day of sale by posting notices of the time, terms and place of sale in three (3) public places in the county, one (1) of which shall be at the courthouse.
(2) In addition to effectuating the advertisement, any expense or cost incurred by advertising and providing notice for the sale of personalty pursuant to subsection (1) of this section in justice court shall be paid by the plaintiff, and said expenses shall be taxed as costs.
§ 13-3-167
When goods and chattels are levied on, which by their nature are perishable and in danger of immediate waste or decay, the officer levying shall sell them at such time, and on such notice, and at such place as a sound discretion may warrant.
§ 13-3-169
(1) Except as otherwise provided in this section, sales under execution shall not commence sooner than eleven o'clock in the forenoon, nor continue later than four o'clock in the afternoon. All such sales shall be by auction, to the highest bidder for cash, and only so much of the property levied on shall be sold as will satisfy the execution and costs.
(2) Sales under execution conducted by a special agent of the State Tax Commission pursuant to a warrant, jeopardy warrant or alias warrant issued by the Chairman of the State Tax Commission, shall commence and be conducted at the times specified by the Chairman of the State Tax Commission or his duly authorized agent. All such sales shall be by auction to the highest bidder for cash or for cash equivalent deemed acceptable by the Chairman of the State Tax Commission. Only so much of the property levied on shall be sold as will satisfy the execution and costs.
§ 13-3-171
All lands comprising a single tract, sold under execution, shall be first offered in subdivisions not exceeding one hundred and sixty (160) acres, or one-quarter section, and then offered as an entirety, and the price bid for the latter shall control only when it shall exceed the aggregate of the bids for the same in subdivisions.
§ 13-3-173
Whenever, from a defect of bidders, caused by inclement weather or otherwise, the property shall not be likely to command a reasonable price, the officer may adjourn the sale and readvertise the same for a subsequent day. Whenever a sale advertised for a particular day shall not be completed on that day, the same may be continued from day to day.
§ 13-3-175
If any property taken in execution shall remain in the hands of the officer unsold, he shall so return on the execution, and thereupon a writ of venditioni exponas shall issue, directed to the officer, upon which the like proceedings shall be had as might and ought to have been had on the first execution. And if property sold on a venditioni exponas shall not bring enough to satisfy the judgment, the officer shall forthwith return the same, and thereupon another proper execution for the balance remaining unpaid may be issued.
§ 13-3-177
When the officer taking property under execution shall die before the sale thereof, a writ of venditioni exponas shall issue, directed to the proper officer of the county in which the property was taken, and such officer shall, under the writ of venditioni exponas, receive the property from the representatives of the former sheriff, or other officer, who are required to deliver the same to the officer having the venditioni exponas, on his producing the same and executing a receipt for the property, and the officer shall proceed to sell the same as in other cases.
§ 13-3-179
If the representatives of the deceased officer shall refuse or neglect to deliver the property on demand, or if there shall not be an executor or administrator of his estate, the officer having the writ of venditioni exponas may seize the property taken by the former officer wherever it may be found, and sell the same as in other cases, or the plaintiff may move in the court from which the execution issued against the representatives of the deceased officer and his sureties, and thereupon a judgment shall be entered against the representatives of the deceased officer and his sureties for the amount of the execution which came to the hands of such deceased officer, with interest and costs.
§ 13-3-181
After the sale of any property by the sheriff or other officer on execution, before the money is paid over by him, he shall examine the judgment-roll to ascertain if there by any elder judgment or judgments, decree or decrees, enrolled against the defendant or defendants in execution, having a priority of lien. If there be, he shall apply the proceeds of the sale to the judgment or decree having the priority of lien, and return such application upon the execution. Should there by any dispute as to which judgment or decree has the priority of lien, the officer shall make a statement of the fact of the dispute, and return the same, with the execution and the money raised thereon, into the court to which the same is returnable, and the court shall, on motion and examination of the facts, determine to whom the money so raised on execution shall be paid.
§ 13-3-183
When an officer shall receive under execution the whole or any part of the money for which the same was issued, and the defendant, before payment thereof to the plaintiff, obtain an injunction against the execution, the officer shall pay over to the defendant the money received, or such part thereof as may be enjoined. If an officer shall, when required, fail to pay over the money so received and enjoined to the person having a right to demand the same, such officer and his sureties shall be liable to the same remedies as are given by law to the plaintiff for the nonpayment of money levied on execution.
§ 13-3-185
The purchaser of any property sold at execution sale by the sheriff or other officer shall take the same discharge of all liens of judgments and decrees, whether the same be sold under an execution issued upon the elder or junior judgment or decree.
§ 13-3-187
When lands are sold by virtue of any writ of execution or other process, the officer making the sale shall, on payment of the purchase-money, execute to the purchaser a conveyance which shall vest in the purchaser all the right, title and interest which the defendant had in and to such lands, and which, by law, could be sold under such execution or other process.
§ 13-3-189
The title to land sold under execution issued by a justice of the peace shall not be complete in the purchaser until he shall have obtained from the justice a certified transcript of the proceedings had before him in the suit, including a copy of the execution and the officer's return on it, which shall be filed with the conveyance made by the officer in the chancery clerk's office and recorded with the conveyance. Upon filing such transcript and conveyance for record in the chancery clerk's office of the county where the land lies, the title of the purchaser shall be as full and complete as if the sale had been under a judgment and execution from a circuit court.
Chapter 5 Juries
§ 13-5-1
Every citizen not under the age of twenty-one years, who is either a qualified elector, or a resident freeholder of the county for more than one year, is able to read and write, and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror. No person who is or has been within twelve months the overseer of a public road or road contractor shall, however, be competent to serve as a grand juror. The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict. Moreover, no talesman or tales juror shall be qualified who has served as such talesman or tales juror in the last preceding two years, and no juror shall serve on any jury who has served as such for the last preceding two years. No juror shall serve who has a case of his own pending in that court, provided there are sufficient qualified jurors in the district, and for trial at that term.
In order to determine that prospective jurors can read and write, the presiding judge shall, with the assistance of the clerk, distribute to the jury panel a form to be completed personally by each juror prior to being empaneled as follows:
“1. Your name __________ Last __________ First __________ Middle initial
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Your home address __________
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Your occupation __________
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Your age __________
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Your telephone number __________ If none, write none
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If you live outside the county seat, the number of miles you live from the courthouse __________ Miles
Sign your name”
The judge shall personally examine the answers of each juror prior to empaneling the jury and each juror who cannot complete the above form shall be disqualified as a juror and discharged.
A list of any jurors disqualified for jury duty by reason of inability to complete the form shall be kept by the circuit clerk and their names shall not be placed in the jury box thereafter until such person can qualify as above provided.
§ 13-5-2
It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.
§ 13-5-4
As used in this chapter:
(a) “Court” means the circuit, chancery and county courts of this state and includes, when the context requires, any judge of the court.
(b) “Clerk” and “clerk of the court” means the circuit clerk of the county and any deputy clerk.
(c) “Master list” means the voter registration lists for the county.
(d) “Voter registration lists” means the official records of persons registered to vote in the county.
(e) “Jury wheel” means any physical device or electronic system for the storage of the names or identifying numbers of prospective jurors.
(f) “Jury box” means the jury wheel in which is placed the names or identifying numbers of prospective jurors whose names are drawn at random from the jury wheel and who are not disqualified.
(g) “Senior judge” means the circuit or chancery judge, as the case may be, who has the longest continuous service on the court in a particular judicial district which has more than one (1) such judge, or if the judges are equal in time of service, then the judge who has been engaged for the longest time continuously in the practice of law in this state.
§ 13-5-6
(1) A jury commission shall be established in each county to manage the jury selection process under the supervision and control of the court. The jury commission shall be composed of three (3) members who will serve a four-year term beginning on January 1, 1975, as follows: One (1) member shall be appointed by the circuit judge of said county; one (1) member shall be appointed by the chancery judge of said county; and one (1) member shall be appointed by the board of supervisors of said county. If there is more than one (1) circuit or chancery judge in a judicial district, then the senior circuit or chancery judge, as the case may be, shall make the said appointment for each county in his district. Any unexpired term shall be filled by the appropriate appointing authority who is in office at the time the vacancy occurs.
(2) A jury commissioner shall have the following qualifications:
(a) He shall be a duly qualified elector at the time of his appointment;
(b) He shall be a resident citizen in the county in which he is to serve; and
(c) He shall not be an attorney nor an elected public official.
(3) Each jury commissioner shall receive compensation at a per diem rate as provided in Section 25-3-69.
§ 13-5-8
(1) In April of each year, the jury commission for each county shall compile and maintain a master list consisting of the voter registration list for the county.
(2) The circuit clerk of the county and the registrar of voters shall have the duty to certify to the commission during the month of January of each year under the seal of his office the voter registration list for the county; the list shall exclude any person who has been permanently excused from jury service pursuant to Section 13-5-23(4). Any person who has been excluded from the master list for jury service may be reinstated to the master list after one (1) year by requesting that the circuit clerk reinstate him to the master list.
§ 13-5-10
The jury commission for each county shall maintain a jury wheel into which the commission shall place the names or identifying numbers of prospective jurors taken from the master list. If the total number of prospective jurors on the master list is one thousand (1,000) or less, the names or identifying numbers of all of them shall be placed in the jury wheel. In all other cases, the number of prospective jurors to be placed in the jury wheel shall be one thousand (1,000) plus not less than one percent (1%) of the total number of names on the master list. From time to time a larger or additional number may be determined by the jury commission or ordered by the court to be placed in the jury wheel. In April of each year, beginning in 1976, the wheel shall be emptied and refilled as prescribed in this chapter.
§ 13-5-12
Unless all the names on the master list are to be placed in the jury wheel pursuant to Section 13-5-10, the names or identifying numbers of prospective jurors to be placed in the jury wheel shall be selected by the jury commission at random from the master list in the following manner: The total number of names on the master list shall be divided by the number of names to be placed in the jury wheel; the whole number nearest the quotient shall be the “key number,” except that the key number shall never be less than two (2). A “starting number” for making the selection shall then be determined by a random method from the number from one (1) to the key number, both inclusive. The required number of names shall then be selected from the master list by taking in order the first name on the master list corresponding to the starting number and then successively the names appearing in the master list at intervals equal to the key number, recommencing if necessary at the start of the list until the required number of names has been selected. The name of any person who is under the age of twenty-one (21) years and the name of any person who has been permanently excused from jury service pursuant to Section 13-5-23(4) shall be passed over without interrupting the sequence of selection. Any person who has been excluded from the master list for jury service may be reinstated to the master list after one (1) year by requesting that the circuit clerk reinstate him to the master list. Upon recommencing at the start of the list, names previously selected from the master list shall be disregarded in selecting the additional names. The jury commission may use an electronic or mechanical system or device in carrying out its duties.
§ 13-5-14
At any time the jury commission places names in the jury wheel, the jury commission shall also deliver to the senior circuit judge a list of all names placed on or in the jury wheel, and said circuit judge shall spread upon the minutes of the circuit court all of the names so placed in the jury wheel.
§ 13-5-16
(1) Except as otherwise provided by subsection (2) of this section, from time to time and in a manner prescribed by the court, a private citizen who does not have an interest in a case pending trial and who is not a practicing attorney publicly shall draw at random from the jury wheel the names or identifying numbers of as many prospective jurors as the court by order requires. The clerk shall prepare an alphabetical list of the names drawn. Neither the names drawn nor the list shall be disclosed to any person other than pursuant to this chapter or specific order of the court.
(2) The court may order that the drawing of names or identifying numbers pursuant to subsection (1) of this section may be performed by random selection of a computer or electronic device pursuant to such rules and regulations as may be prescribed by the court.
§ 13-5-18
The clerk of the circuit court in each county shall purchase and install a telephone answering device for the purpose of providing a recorded message after 5:00 p.m. to jurors who have been summoned to jury duty, in order for such jurors to inquire as to whether their presence will be required in court the following day. The cost of purchasing and maintaining said telephone answering device shall be paid by the board of supervisors from the county general fund.
§ 13-5-21
In counties where there are two (2) circuit court districts, the jury commission shall make a list of jurors for each district in the manner directed for a county, and the same shall be treated in all respects as for an entire county. In such counties a juror shall not be required to serve out of his district, except should the court, in its discretion, otherwise direct, and except when drawn on a special venire. In either of such excepted cases, the jury shall be drawn from the two (2) jury boxes if the court so direct, one (1) name for each alternately.
§ 13-5-23
(1) All qualified persons shall be liable to serve as jurors, unless excused by the court for one (1) of the following causes:
(a) When the juror is ill and, on account of the illness, is incapable of performing jury service;
(b) When the juror's attendance would cause undue or extreme physical or financial hardship to the prospective juror or a person under his or her care or supervision; or
(c) When the potential juror is a breast-feeding mother.
(2) An excuse of illness under subsection (1)(a) of this section may be made to the clerk of court outside of open court by providing the clerk with a certificate of a licensed physician, stating that the juror is ill and is unfit for jury service, in which case the clerk may excuse the juror. If the excuse of illness is not supported by a physician's certificate, a judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(a) of this section.
(3)(a) The test of an excuse under subsection (1)(b) of this section for undue or extreme physical or financial hardship shall be whether the individual would either:
(i) Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury; or
(ii) Incur costs that would have a substantial adverse impact on the payment of the individual's necessary daily living expenses or on those for whom he or she provides the principal means of support; or
(iii) Suffer physical hardship that would result in illness or disease.
(b) “Undue or extreme physical or financial hardship” does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment or business.
(c) A judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(b) of this section.
(d) A person asking to be excused based on a finding of undue or extreme physical or financial hardship must take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.
(e) A person asking a judge to grant an excuse under subsection (1)(b) of this section may be required to provide the judge with documentation such as, but not limited to, federal and state income tax returns, medical statements from licensed physicians, proof of dependency or guardianship and similar documents, which the judge finds to clearly support the request to be excused. Failure to provide satisfactory documentation may result in a denial of the request to be excused.
(f) In cases under subsection (1)(c) of this section, the excuse must be made by the juror in open court under oath.
(4) A person is excused from jury service permanently only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature. A person who has been summoned for jury duty who meets the age threshold for exemption from jury service shall have the option to be permanently excused from jury service due to age by filing with the circuit clerk a notarized request to be permanently excused.
(5) Grand jurors shall serve until discharged by the court.
§ 13-5-25
Every citizen over sixty-five (65) years of age, and everyone who has served as a grand juror or as a petit juror in the trial of a litigated case within two (2) years, shall be exempt from service if the juror claims the privilege. No qualified juror shall be excluded because of any such reasons, but the same shall be a personal privilege to be claimed by any person selected for jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.
Provided, however, that no person who has served as a grand juror or as a petit juror in a trial of a litigated case in one (1) court may claim the exemption in any other court where the juror may be called to serve.
§ 13-5-26
(1) The circuit clerk shall maintain a jury box and shall place therein the names or identifying numbers of all prospective jurors drawn from the jury wheel.
(2) A judge or any court or any other state or county official having authority to conduct a trial or hearing with a jury within the county may direct the circuit clerk to draw and assign to that court or official the number of jurors he deems necessary for one or more jury panels or as required by law for a grand jury, except as otherwise provided by subsection (3) of this section. Upon receipt of the direction, and in a manner prescribed by the court, the circuit clerk shall publicly draw at random from the jury box the number or jurors specified.
(3) The court may order that the drawing and assigning of jurors pursuant to subsection (2) of this section may be performed by random selection of a computer or electronic device pursuant to such rules and regulations as may be prescribed by the court. The jurors drawn for jury service shall be assigned at random by the clerk to each jury panel in a manner prescribed by the court.
§ 13-5-28
If a grand, petit or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons, either personally or by mail, addressed to the juror at the juror's usual residence, business or post office address, requiring the juror to report for jury service at a specified time and place. The summons shall include instructions to the potential jurors that explain, in layman's terms, the provisions of Section 13-5-23.
§ 13-5-30
If there is an unanticipated shortage of available petit jurors drawn from a jury box, the court may require the sheriff to summon a sufficient number of petit jurors selected at random by the clerk from the jury box in a manner prescribed by the court.
§ 13-5-32
The names of jurors drawn from the jury box shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.
§ 13-5-33
(1) Notwithstanding any other provisions of this chapter, individuals scheduled to appear for jury service have the right to postpone the date of their initial appearance for jury service one (1) time only. Postponements shall be granted upon request, provided that:
(a) The juror has not been granted a postponement within the past two (2) years;
(b) The prospective juror appears in person or contacts the clerk of the court by telephone, electronic mail or in writing to request a postponement; and
(c) Prior to the grant of a postponement with the concurrence of the clerk of the court, the prospective juror fixes a date certain to appear for jury service that is not more than six (6) months or two (2) terms of court after the date on which the prospective juror originally was called to serve and on which date the court will be in session, whichever is the longer period.
(2) A subsequent request to postpone jury service may be approved by a judicial officer only in the event of an extreme emergency, such as a death in the family, sudden illness, or a natural disaster or a national emergency in which the prospective juror is personally involved, that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a second postponement, the prospective juror must fix a date certain on which the individual will appear for jury service within six (6) months or two (2) terms of court after the postponement on a date when the court will be in session.
(3) The Administrative Office of Courts shall promulgate rules for the implementation of this section.
§ 13-5-34
(1) A person summoned for jury service who fails to appear or to complete jury service as directed, and who has failed to obtain a postponement in compliance with the provisions for requesting a postponement, or who fails to appear on the date set pursuant to Section 13-5-33, may be ordered by the court to appear and show cause for failure to comply with the summons. If the juror fails to show good cause for noncompliance with the summons, the juror may be held in civil contempt of court and may be fined not more than Five Hundred Dollars ($500.00) or imprisoned not more than three (3) days, or both. The prospective juror may be excused from paying sanctions for good cause shown or in the interest of justice.
(2) In addition to, or in lieu of, the fine or imprisonment provided in subsection (1) of this section, the court may order that the prospective juror complete a period of community service for a period no less than if the prospective juror would have completed jury service, and provide proof of completion of this community service to the court.
§ 13-5-35
(1) It shall be unlawful for any employer or any other person to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee notifies his or her employer that he or she has been summoned to serve as a juror within a reasonable period of time after receipt of a summons.
(2) It shall be unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process, or time spent actually serving on a jury. Nothing in this provision shall be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies.
(3) Any violation of subsection (1) or (2) of this section shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.
(4) A court shall automatically postpone and reschedule the service of a summoned juror employed by an employer with five (5) or fewer full-time employees, or their equivalent, if another employee of that employer has previously been summoned to appear during the same period. Such postponement will not constitute the excused individual's right to one (1) automatic postponement under Section 13-5-33.
§ 13-5-36
All records and papers compiled and maintained by the jury commission or the clerk in connection with selection and service of jurors shall be preserved by the clerk for four (4) years after the jury wheel used in their selection is emptied and refilled, and for any longer period ordered by the court.
§ 13-5-38
In counties where the implementation of Sections 13-5-2 through 13-5-16, 13-5-21, 13-5-26 through 13-5-38, and 13-5-41, requires additional clerical or other personnel, the board of supervisors, in its discretion, may pay for such services out of the general county fund of the respective county.
§ 13-5-39
Unless otherwise directed by an order of the senior circuit judge, not more than two (2) grand juries shall be drawn or impaneled during a calendar year at or for a term or terms of the circuit court in any county or judicial district of a county; provided, however, upon impanelment, a grand jury may be convened and reconvened in termtime and in vacation. It shall continue to serve from term to term until the next grand jury is impaneled, and it may return indictments to any term of court, notwithstanding that a term of court at which criminal business may be conducted shall intervene between the time the grand jury is impaneled and the time an indictment is returned.
§ 13-5-41
The number of grand jurors shall not be less than fifteen (15) nor more than twenty-five (25), in the discretion of the court.
§ 13-5-43
Before swearing any grand juror as such, he shall be examined by the court, on oath, touching his qualification. After the grand jurors shall have been sworn and impaneled, no objection shall be raised, by plea or otherwise, to the grand jury, but the impaneling of the grand jury shall be conclusive evidence of its competency and qualifications. However, any party interested may challenge or except to the array for fraud.
§ 13-5-45
The court shall appoint one of the grand jurors to be foreman of the grand jury, to whom the following oath shall be administered in open court, in the presence of the rest of the grand jurors, to wit:
“You, as foreman of this grand inquest, shall diligently inquire into, and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service. The counsel of the state, your fellows, and your own you will keep secret. You shall not present any person through malice, hatred or ill will, nor shall you leave any person unpresented through fear, favor or affection, or for any reward, hope or promise thereof, but in all your presentments, you shall present the truth, the whole truth, and nothing but the truth, to the best of your skill and understanding. So help you God.”
And the following oath shall be administered to the other jurors, to wit:
“The same oath that your foreman has now taken before you on his part, you, and each of you, shall well and truly observe, and keep on your respective parts. So help you God.”
§ 13-5-47
The judge shall charge the grand jury concerning its duties and expound the law to it as he shall deem proper, and he shall particularly charge it concerning enforcement of the following statutes:
(1) those against gambling and the unlawful selling and handling of intoxicating liquors;
(2) those relating to gambling with minors, and the giving or selling to them tobacco, narcotics, or liquors;
(3) those providing for the assessment, collection and disbursement of the public revenues, both state and county;
(4) those defining the duties of public officers;
(5) those relating to the collection and paying over of fines and forfeitures;
(6) those relating to providing fire escapes in hotels, theaters and other buildings;
(7) those relating to the management of sixteenth section school trust lands; and
(8) all such other statutes as he shall deem proper at any time.
Moreover, the judge shall especially charge the grand jury with respect to the state forest fire laws as set forth in Section 95-5-25 and Section 92-17-13, and charge that the grand jury shall report to him as to the status of forest protection in the county.
It shall be unlawful for the district attorney or other officer, or person, to deliver to the grand jury the charge required by this section to be delivered by the judge, but this shall not prevent the judge from having the circuit clerk read the charge proposed by the judge, to the grand jury in the presence of the judge, when, by reason of physical infirmity, the judge shall be unable to deliver his charge.
§ 13-5-51
If, after the grand jury has been sworn, any of the members thereof should absent themselves from any cause, or become incompetent to sit, or be excused by the court, the court shall have power to cause others to be sworn in their places.
§ 13-5-53
The court or judge, in its discretion, may adjourn the grand jury to a subsequent day in termtime or vacation, and the jurors shall receive pay only for the number of days they shall be actually engaged in the performance of their duties.
§ 13-5-55
Each grand jury which is impaneled shall make a personal inspection of the county jail, its condition, sufficiency for the safekeeping of prisoners, and their accommodation and health, and make reports thereof to the court. For any violation or neglect of duty as to the jail, the sheriff may be punished as for a misdemeanor, or may be fined as for a contempt, such not to exceed Fifty Dollars ($50.00).
§ 13-5-57
The grand jury shall have free access at all proper hours to the papers, records, accounts and books of all county officers, for all examinations which, in its discretion, it may see fit to make, and may make report to the court in relation thereto.
§ 13-5-59
It shall be the duty of each grand jury which is impaneled to examine the tax collector's books and his reports and settlements, and make report thereon.
§ 13-5-61
A grand juror, except when called as a witness in court, shall not disclose any proceeding or action had by the grand jury in relation to offenses brought before it, within six (6) months after final adjournment of the grand jury upon which he served, nor shall any grand juror disclose the name or testimony of any witness who has been before the grand jury on pain of fine or imprisonment for contempt of court.
§ 13-5-63
The foreman of the grand jury shall have power to order subpoenas for all witnesses desired to be produced, and he shall also have power to swear all witnesses. A record shall be kept by the foreman and returned to court, certified and signed by the foreman, of the names of all witnesses sworn before the grand jury.
§ 13-5-65
After the drawing of the grand jury, the remaining jurors in attendance shall be impaneled into three petit juries for the first week of court if there be a sufficient number left, and, if not, the court may direct a sufficient number for that purpose to be drawn and summoned. If there be more than enough jurors for the three juries, or for two juries if the court shall direct only two to be impaneled, the excess may be discharged, or they may be retained, in the discretion of the court, to serve as talesmen. If so retained, they shall have the privilege of members of the regular panel, of exemption from service.
§ 13-5-67
Except in cases in which jury selection and selection of alternate jurors is governed by rules promulgated by the Mississippi Supreme Court, whenever, in the opinion of a circuit judge or chancellor presiding in a case in which a jury is to be used, the trial is likely to be a protracted one, such circuit judge or chancellor, in his discretion, may direct that one (1) or two (2) jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged at the time the jury retires to consider its verdict. In capital cases the defendant and the state shall each be allowed two (2) peremptory challenges to alternate jurors in addition to those otherwise provided by law. In all other cases each party shall be allowed one (1) peremptory challenge to alternate jurors in addition to those otherwise provided by law. In any criminal case all peremptory challenges by the state shall be made before the alternate juror is presented to the defendant. The additional peremptory challenges provided for herein may be used against an alternate juror only, and other peremptory challenges allowed by law may not be used against an alternate juror.
§ 13-5-69
Except in cases in which the examination of jurors is governed by rules promulgated by the Mississippi Supreme Court, the parties or their attorneys in all jury trials shall have the right to question jurors who are being impaneled with reference to challenges for cause, and for peremptory challenges, and it shall not be necessary to propound the questions through the presiding judge, but they may be asked by the attorneys or by litigants not represented by attorneys.
§ 13-5-71
Petit jurors shall be sworn in the following form:
“You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.”
The oath shall authorize the jury to try all issues and execute all writs of inquiry which may be submitted to it during that term of the court. Talesmen, if any be summoned or retained, shall in like manner be sworn to try all issues and execute all writs of inquiry which may be submitted to them during the day for which they are summoned or the time for which they are retained.
§ 13-5-73
The jurors in a capital case shall be sworn to “well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.” Bailiffs may be specially sworn by the court, or under its direction, to attend on such jury and perform such duties as the court may prescribe for them.
§ 13-5-77
When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, the accused or the district attorney in any such case shall, upon demand, be entitled to a special venire. If at a term of court a special venire has been demanded for any case or cases, it shall be the duty of the court to cause to be drawn, in open court, from the jury box as many names as the judge in his discretion may direct, not to be less than forty (40) for each special venire as the judge in his discretion may direct to be called, and it shall be the duty of the clerk to issue a special venire facias, commanding the sheriff to summon the persons whose names are so drawn, to attend the court on a particular day to be named in the writ. It shall not be necessary that a separate special venire be drawn for each case in which a special venire is demanded. Those persons summoned pursuant to the issuance of a special venire facias shall attend the court on the day named in the writ and shall serve as the court may direct on any case for which a special venire has been demanded; provided, however, no juror summoned as a special venireman shall be impaneled or serve on more than one (1) case. In the event a special venire be exhausted in a case without a jury being impaneled from those summoned and in attendance, the court shall proceed to make up the jury for the trial of the case from the regular panel and tales jurors who may have been summoned for the day. If, after exhausting said regular panel and tales jurors, a competent jury be not obtained, the court shall direct the sheriff to summon forthwith as many tales jurors as shall be sufficient to complete the jury.
In the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted, then the court may order a special venire facias to be issued by the clerk, directing the sheriff to summon as many jurors as may be necessary, not less than forty (40) for each special venire as the judge in his discretion may direct to be called and, after exhausting a special venire in any case, to impanel the jury as hereinbefore directed. The slips containing the names of all jurors drawn or summoned on a special venire, and not impaneled on a jury, shall be returned to the box from which they were drawn immediately after a jury shall be impaneled. If a special venire be not demanded, the jury in each case shall be composed of the regular venire for the week and as many talesmen and bystanders as may be required, to be summoned under the order of the court.
§ 13-5-79
Any person, otherwise competent, who will make oath that he is impartial in the case, shall be competent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused, if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct. Any juror shall be excluded, however, if the court be of opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.
§ 13-5-81
A challenge to the array shall not be sustained, except for fraud, nor shall any venire facias, except a special venire facias in a criminal case, be quashed for any cause whatever.
§ 13-5-83
If any juror summoned to appear at court, should render himself unfit for service by intoxication before his name is called in court, he shall be fined in a sum not exceeding One Hundred Dollars ($100.00), and be imprisoned for a term not exceeding twenty-four hours. After grand and petit jurors are impaneled they shall be under the control of the court, and, for any breach of duty or contempt of court, may be fined and imprisoned.
§ 13-5-85
In Harrison County, a county having two judicial districts, the law in relation to the selection and liability to jury service of grand and petit juries shall be applicable to each of the two judicial districts of the county in the same manner as if each district were a separate county, so far as the same may be made to apply. No person shall be made to serve as a grand or petit juror except in the district in which he resides. Lists of persons subject and liable to jury duty shall be made and grand and petit jurors shall be selected and empaneled in each of said districts in the same manner as if each were a separate county, except in such cases where it is otherwise provided by law.
§ 13-5-87
All the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely, and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn, and it shall have the power to perform all the duties devolving on the jury.
§ 13-5-89
In all cases where a jury is required in the exercise of the right of eminent domain, the sheriff and clerks of the circuit and chancery courts shall draw eighteen names from the jury box, and the slips containing the names shall be returned to the box. The sheriff shall summon the jury thus drawn, and the jurors shall attend, under the same penalties as in the circuit court, and the penalties may be enforced therein at the next term, on complaint of the proper party or of the sheriff.
§ 13-5-91
When, in the opinion of the court, on the trial of any cause, civil or criminal, it is proper, in order to reach the ends of justice, for the court and jury to have a view or inspection of the property which is the subject of litigation, or the place at which the offense is charged to have been committed, or the place or places at which any material fact occurred, or of any material object or thing in any way connected with the evidence in the case, the court may, at its discretion, enter an order providing for such view or inspection as is herein below directed. After such order is entered, the whole organized court, consisting of the judge, jury, clerk, sheriff, and the necessary number of deputy sheriffs, shall proceed, in a body, to such place or places, property, object or thing to be so viewed or inspected, which shall be pointed out and explained to the court and jury by the witnesses in the case, who may, at the discretion of the court, be questioned by the court and by the representative of each side at the time and place of such view or inspection, in reference to any material fact brought out by such view or inspection. The court on such occasion shall remain in session from the time it leaves the courtroom till it returns thereto, and while so in session outside the courtroom it shall have full power to compel the attendance of witnesses, to preserve order, to prevent disturbance and to punish for contempt such as it has when sitting in the courtroom. In criminal trials all such views or inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be in his presence.
§ 13-5-93
In the trial of all civil suits in the circuit or chancery courts of this state, nine or more jurors may agree on the verdict and return it into court as the verdict of the jury. Either party may request an instruction in writing to this effect and it shall thereupon be the duty of the trial judge to instruct the jury in writing that if nine or more jurors agree on the verdict that they may return the same into open court as the verdict of the jury.
§ 13-5-95
In selecting overnight accommodations for jurors, the court shall provide separate housing for men and women jurors. Male bailiffs shall accompany the male jurors, and female bailiffs the female jurors. At least one bailiff shall accompany each group, and the court in its sound discretion shall require as many bailiffs as are necessary. Either group may be housed in private premises if necessary.
§ 13-5-97
Records in the possession of a public body, as defined by paragraph (a) of Section 25-61-3, which are developed among juries concerning judicial decisions, shall be exempt from the provisions of the Mississippi Public Records Act of 1983.
Chapter 7 State Grand Jury Act
§ 13-7-1
This chapter may be cited as the “State Grand Jury Act,” and any state grand jury which may be convened as provided herein shall be known as “State Grand Jury of Mississippi.”
§ 13-7-3
For purposes of this chapter:
(a) The phrase “Attorney General or his designee” also includes:
(i) The Attorney General or his designees;
(ii) The Attorney General and his designee or designees.
(b) The term “impaneling judge” means any senior circuit court judge of any circuit court district who, upon petition by the Attorney General, impanels a state grand jury under the provisions of this chapter and shall also include any successor to such judge as provided by law.
§ 13-7-5
There is established a state grand jury system. Each state grand jury shall consist of twenty (20) persons who may be impaneled and who may meet at any suitable location within the state as designated by the impaneling judge. Fifteen (15) members of a state grand jury constitute a quorum.
§ 13-7-7
(1) The jurisdiction of a state grand jury impaneled under this chapter extends throughout the state. The subject matter jurisdiction of a state grand jury in all cases is limited to offenses involving any and all conduct made unlawful by the Mississippi Uniform Controlled Substances Law or any other provision of law involving narcotics, dangerous drugs or controlled substances, or any crime arising out of or in connection with a crime involving narcotics, dangerous drugs or controlled substances, and crimes involving any attempt, aiding, abetting, solicitation or conspiracy to commit any of the aforementioned crimes if the crimes occur within more than one (1) circuit court district or have transpired or are transpiring or have significance in more than one (1) circuit court district of this state.
(2) Whenever the Attorney General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the senior circuit court judge of any circuit court district in this state for an order impaneling a state grand jury. For the purposes of this chapter, such judge shall be referred to as the impaneling judge. The petition must allege the following:
(a) The type of offenses to be inquired into;
(b) That the state grand jury has jurisdiction to consider such matters;
(c) That the offenses to be inquired into have occurred within more than one (1) circuit court district or have transpired or are transpiring or have significance in more than one (1) circuit court district of this state;
(d) That the Attorney General has conferred with the Commissioner of Public Safety and the Director of the Mississippi Bureau of Narcotics and that each of such officials join in the petition; and
(e) That the Attorney General has conferred with the appropriate district attorney for each jurisdiction in which the crime or crimes are alleged to have occurred.
(3) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve (12) calendar months. Upon petition by the Attorney General, the impaneling judge, by order, may extend the term of that state grand jury for a period of six (6) months, but the term of that state grand jury, including any extension thereof, shall not exceed two (2) years.
(4) The impaneling judge shall preside over the state grand jury until its discharge.
(5) The impaneling judge may discharge a state grand jury prior to the end of its original term or any extensions thereof, upon a determination that its business has been completed, or upon the request of the Attorney General.
(6) If, at any time within the original term of any state grand jury or any extension thereof, the impaneling judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the impaneling judge may limit the investigations so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (5) of this section shall not become effective less than ten (10) days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal.
§ 13-7-9
A state grand jury may return indictments irrespective of the county or judicial district where the offense is committed. If an indictment is returned, it must be certified and transferred for prosecution to the county designated by the impaneling judge. The powers and duties of and the law applicable to county grand juries apply to the state grand jury, except when such powers and duties and applicable law are inconsistent with the provisions of this chapter.
§ 13-7-11
The Attorney General or his designee shall attend sessions of a state grand jury and shall serve as its legal advisor. The Attorney General or his designee shall examine witnesses, present evidence, and draft indictments and reports upon the direction of a state grand jury.
§ 13-7-13
The impaneling judge shall appoint a circuit clerk who shall serve as the clerk of the state grand jury. The compensation of the state grand jury clerk shall be paid out of any available funds appropriated for that purpose.
§ 13-7-15
After the impaneling judge orders a term for the state grand jury on petition of the Attorney General, the impaneling judge shall order that the circuit clerk for each county shall proceed to draw at random from the jury box as provided by Section 13-5-26, the name of one (1) voter of such county for each two thousand (2,000) voters or fraction thereof registered in such county and shall place these names on a list. The circuit clerk shall not disqualify or excuse any individual whose name is drawn. When the list is compiled, the clerk of the circuit court for each county shall forward the list to the clerk of the state grand jury. Upon receipt of all the lists from the clerks of the circuit courts, the clerk of the state grand jury shall place all the names so received upon a list which shall be known as the master list.
The impaneling judge shall order the clerk of the state grand jury to produce the master list and shall direct the random drawing of the names of one hundred (100) persons from the master list. The names drawn shall be given to the clerk of the state grand jury who shall cause each person drawn for service to be served with a summons either personally by the sheriff of the county where the juror resides or by mail, addressed to the juror at his usual residence, business or post office address, requiring him to report for state grand jury service at a specified time and place as designated by the impaneling judge. From the one hundred (100) persons summoned, a state grand jury shall be drawn for that term consisting of twenty (20) persons. State grand jurors must be drawn in the same manner as jurors are drawn for service on the county grand jury.
All qualified persons shall be liable to serve as state grand jurors, unless excused by the court for one (1) of the following causes:
(a) When the juror is ill, or when on account of serious illness in the juror's family, the presence of the juror is required at home;
(b) When the juror's attendance would cause a serious financial loss to the juror or to the juror's business; or
(c) When the juror is under an emergency, fairly equivalent to those mentioned in the foregoing paragraphs (a) and (b).
An excuse of illness under paragraph (a) may be made to the state grand jury clerk outside of open court by providing the clerk with either a certificate of a licensed physician or an affidavit of the juror, stating that the juror is ill or that there is a serious illness in the juror's family. The test of an excuse under paragraph (b) shall be whether, if the juror were incapacitated by illness or otherwise for a week, some other persons would be available or could reasonably be procured to carry on the business for the week, and the test of an excuse under paragraph (c) shall be such as to be the fair equivalent, under the circumstances of that prescribed under paragraph (b). In cases under paragraphs (b) and (c) the excuse must be made by the juror, in open court, under oath.
It shall be unlawful for any employer or other person to persuade or attempt to persuade any juror to avoid jury service, or to intimidate or to threaten any juror in that respect. So to do shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.
Every citizen over sixty-five (65) years of age shall be exempt from service if he claims the privilege. No qualified juror shall be excluded because of such reason, but the same shall be a personal privilege to be claimed by any person selected for state grand jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.
The state grand jurors shall be charged by the impaneling judge as to their authority and responsibility under the law and each juror shall be sworn pursuant to Section 13-5-45. Nothing in this section shall be construed as limiting the right of the Attorney General or his designee to request that a potential state grand juror be excused for cause. The jury selection process shall be conducted by the impaneling judge. Jurors of a state grand jury shall receive reimbursement for travel and mileage as provided for state employees by Section 25-3-41 and shall be paid per diem compensation in the amount provided by Section 25-3-69. All compensation and expenses for meals and lodging of state grand jurors shall be paid out of any available funds appropriated for that purpose.
§ 13-7-17
The impaneling judge shall appoint one (1) of the jurors to be a foreman and another to be deputy foreman. During the absence of the foreman, the deputy foreman shall act as foreman. The foreman and deputy foreman shall be sworn pursuant to Section 13-5-45.
§ 13-7-19
After the state grand jurors shall have been sworn and impaneled, no objections shall be raised by plea or otherwise, to the state grand jury, but the impaneling of the state grand jury shall be conclusive evidence of its competency and qualifications. However, any party interested may challenge the jury, except to the array, for fraud.
§ 13-7-21
The clerk of the state grand jury, upon request of the Attorney General or his designee, shall issue subpoenas, or subpoenas duces tecum to compel individuals, documents or other materials to be brought from anywhere in the state or another state to a state grand jury. In addition, a state grand jury may proceed in the same manner as is provided for by law in relation to the issuance of subpoenas and subpoenas duces tecum; however, the provisions of such law shall not be considered a limitation upon this section, but shall be supplemental thereto. The subpoenas and subpoenas duces tecum may be for investigative purposes and for the retention of documents or other materials so subpoenaed for proper criminal proceedings. Any investigator employed by the Attorney General or any law enforcement officer with appropriate jurisdiction is empowered to serve such subpoenas and subpoenas duces tecum and receive such documents and other materials for return to a state grand jury. Any person violating a subpoena or subpoena duces tecum issued pursuant to this chapter, or who fails to fully answer all questions put to him before proceedings of the state grand jury whenever the response thereto is not privileged or otherwise protected by law, including the granting of immunity as authorized by this chapter, or any other law, may be punished by the impaneling judge for contempt provided the response is not privileged or otherwise protected by law. The Attorney General or his designee may petition the impaneling judge to compel compliance by the person alleged to have committed the violation or who has failed to answer. If the impaneling judge considers compliance is warranted, he may order compliance and may punish the individual for contempt, as provided in Section 9-1-17, where the compliance does not occur. The clerk of the state grand jury may also issue subpoenas and subpoenas duces tecum to compel individuals, documents or other materials to be brought from anywhere in the state to the trial of any indictment returned by a state grand jury or the trial of any civil forfeiture action arising out of an investigation conducted by a state grand jury.
§ 13-7-23
Once a state grand jury has entered into a term, the petition and order establishing and impaneling the state grand jury may be amended as often as necessary and appropriate so as to expand the areas of inquiry authorized by the order or to add additional areas of inquiry thereto, consistent with the provisions of this chapter. The procedures for amending this authority are the same as those for filing the original petition and order.
§ 13-7-25
A court reporter shall record either stenographically or by use of an electronic recording device, all state grand jury proceedings except when the state grand jury is deliberating or voting. Subject to the limitations of Section 13-7-29 and any rule of court, a defendant has the right to review and to reproduce the stenographically or electronically recorded materials. Transcripts of the recorded testimony or proceedings must be made when requested by the Attorney General or his designee. An unintentional failure of any recording to reproduce all or any portion of the testimony or proceeding shall not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom and all books, papers, records and correspondence produced before the state grand jury shall remain in the custody and control of the Attorney General or his designee unless otherwise ordered by the court in a particular case.
§ 13-7-27
The foreman shall administer an oath or affirmation in the manner prescribed by law to any witness who testifies before a state grand jury.
§ 13-7-29
(1) State grand jury proceedings are secret, and a state grand juror shall not disclose the nature or substance of the deliberations or vote of the state grand jury. The only persons who may be present in the state grand jury room when a state grand jury is in session, except for deliberations and voting, are the state grand jurors, the Attorney General or his designees, an interpreter if necessary and the witness testifying. A state grand juror, the Attorney General or his designees, any interpreter used and any person to whom disclosure is made pursuant to subsection (2)(b) of this section may not disclose the testimony of a witness examined before a state grand jury or other evidence received by it except when directed by a court for the purpose of:
(a) Ascertaining whether it is consistent with the testimony given by the witness before the court in any subsequent criminal proceedings;
(b) Determining whether the witness is guilty of perjury;
(c) Assisting local, state or federal law enforcement or investigating agencies, including another grand jury, in investigating crimes under their investigative jurisdiction;
(d) Providing the defendant the materials to which he is entitled pursuant to Section 13-7-25; or
(e) Complying with constitutional, statutory or other legal requirements or to further justice.
If the court orders disclosure of matters occurring before a state grand jury, the disclosure shall be made in that manner, at that time, and under those conditions as the court directs.
(2) In addition, disclosure of testimony of a witness examined before a state grand jury or other evidence received by it may be made without being directed by a court to:
(a) The Attorney General or his designees for use in the performance of their duties; or
(b) Those governmental personnel, including personnel of the state or its political subdivisions, as are considered necessary by the Attorney General or his designee to assist in the performance of their duties to enforce the criminal laws of the state; however, any person to whom matters are disclosed under this paragraph (b) shall not utilize the state grand jury material for purposes other than assisting the Attorney General or his designee in the performance of their duties to enforce the criminal laws of this state. The Attorney General or his designees shall promptly provide the impaneling judge the names of the persons to whom the disclosure has been made and shall certify that he has advised these persons of their obligations of secrecy under this section.
(3) Nothing in this section affects the attorney-client relationship. A client has the right to communicate to his attorney any testimony given by the client to a state grand jury, any matters involving the client discussed in the client's presence before a state grand jury and evidence involving the client received by a proffer to a state grand jury in the client's presence.
(4) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding Five Thousand Dollars ($5,000.00), or by a term of imprisonment not exceeding one (1) year, or by both such fine and imprisonment.
(5) State grand jurors, the Attorney General and his designee, any interpreter used and the clerk of the state grand jury shall be sworn to secrecy and also may be punished for criminal contempt for violations of this section.
§ 13-7-31
Except for the prosecution of cases arising from indictments issued by the state grand jury, the impaneling judge has jurisdiction to hear all matters arising from the proceedings of a state grand jury, including, but not limited to, matters related to the impanelment or removal of state grand jurors, the quashing of subpoenas and the punishment for contempt.
§ 13-7-33
The Attorney General or his designee shall coordinate the scheduling of activities of any state grand jury.
§ 13-7-35
(1) In order to return a “True Bill” of indictment, twelve (12) or more state grand jurors must find that probable cause exists for the indictment and vote in favor of the indictment. Upon indictment by a state grand jury, the indictment shall be returned to the impaneling judge. If the impaneling judge considers the indictment to be within the authority of the state grand jury and otherwise in accordance with the provisions of this chapter, he shall order the clerk of the state grand jury to certify the indictment and return the indictment to the county designated by the impaneling judge as the county in which the indictment shall be tried.
(2) Indictments returned by a state grand jury are properly triable in any county of the state where any of the alleged conduct occurred. The impaneling judge to whom the indictment is returned shall designate the county in which the indictment shall be tried. If a multicount indictment returned by a state grand jury is properly triable in a single proceeding as otherwise provided by law, all counts may be tried in the county designated by the impaneling judge notwithstanding the fact that different counts may have occurred in more than one (1) county.
(3) In determining the venue for indictments returned by a state grand jury, the impaneling judge shall select the county in which the state and defendant may receive a fair trial before an impartial jury taking into consideration the totality of the circumstances of each case.
(4) When the indictment has been returned to the circuit clerk of the county designated by the impaneling judge, the capias shall be issued as otherwise provided by law. The indictment shall be kept secret until the defendant is in custody or has been released pending trial.
§ 13-7-37
If any person asks to be excused from testifying before a state grand jury or from producing any books, papers, records, correspondence or other documents before a state grand jury on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to any penalty or forfeiture and such person, notwithstanding such ground, is directed by the impaneling judge to give the testimony or produce the evidence, he shall comply with this direction, but no testimony so given or evidence produced may be received against him in any criminal action, investigation or criminal proceeding. No individual testifying or producing evidence or documents is exempt from prosecution or punishment for any perjury committed by him while so testifying, and the testimony or evidence given or produced is admissible against him upon any criminal action, criminal investigation or criminal proceeding concerning this perjury; however, any individual may execute, acknowledge and file a statement with the appropriate court expressly waiving immunity or privilege in respect to any testimony given or produced and thereupon the testimony or evidence given or produced may be received or produced before any judge or justice, court tribunal, grand jury or otherwise, and if so received or produced, the individual is not entitled to any immunity or privilege on account of any testimony he may give or evidence produced.
§ 13-7-39
Records, orders and subpoenas related to state grand jury proceedings shall be kept under seal to the extent and for the time that is necessary to prevent disclosure of matters occurring before a state grand jury.
§ 13-7-41
The Attorney General shall make available suitable space for state grand juries to meet. The Mississippi Department of Public Safety and the Mississippi Bureau of Narcotics may provide such services as required by the Attorney General and the state grand juries.
§ 13-7-43
The Supreme Court may promulgate rules as are necessary for the operation of the state grand jury system established by this chapter.
§ 13-7-45
If any part of this chapter is declared invalid, unenforceable or unconstitutional by a court of competent jurisdiction, that part shall be severable from the remaining portions of this chapter, which portions shall remain in full force and effect as if the invalid, unenforceable or unconstitutional portion were omitted.
§ 13-7-47
This chapter applies to offenses committed both before and after its effective date.
§ 13-7-49
Nothing in this chapter shall be construed as amending, repealing or superseding any other law of this state governing the powers and duties of county grand jurors, district attorneys or law enforcement agencies or other officials with regard to their authority to investigate, indict or prosecute offenses that are prescribed by this chapter as within the jurisdiction of the state grand jury.
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