Title 11 — Civil Practice and Procedure

(1) The authority to bring an action against any firearms or ammunition manufacturer, distributor or dealer duly licensed under federal law on behalf of any governmental entity created by or pursuant to an act of the Mississippi Legislature or the Mississippi Constitution of 1890, or any department, agency or authority thereof, for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to the lawful design, manufacture, distribution or sale of firearms, firearm components, ammunition or ammunition components to the public, shall be exclusively reserved to the state. This section shall not prohibit a political subdivision from bringing an action against a firearm or ammunition manufacturer, distributor or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship.

(2) “Political subdivision” and “governmental entity” shall have the meanings ascribed in Section 11-46-1.

§ 11-1-69

(1) In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life. However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering. The determination of the existence and extent of recovery for pain and suffering and loss of enjoyment of life shall be a question for the finder of fact, subject to appellate review, and the monetary value of the pain and suffering and loss of enjoyment of life shall not be made the subject of expert testimony.

(2) In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.

§ 11-1-71

(1) Any licensed physician, certified nurse practitioner, psychologist or physician assistant who voluntarily provides needed medical or health services to any program at an accredited school in the state without the expectation of payment shall be immune from liability for any civil action arising out of the provision of such medical or health services provided in good faith on a charitable basis. This section shall not extend immunity to willful acts or gross negligence. Except in cases of rendering emergency care wherein the provisions of Section 73-25-37, Mississippi Code of 1972, apply, immunity under this section shall be extended only if the physician, certified nurse practitioner, psychologist or physician assistant and patient execute a written waiver in advance of the rendering of such medical services specifying that such services are provided without the expectation of payment and that the licensed physician or certified nurse practitioner, psychologist or physician assistant shall be immune as provided herein.

(2) Any physician who voluntarily renders any medical service under a special volunteer medical license authorized under Section 73-25-18 without any payment or compensation or the expectation or promise of any payment or compensation shall be immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service unless the act or omission was the result of the physician's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written or oral agreement for the physician to provide a voluntary noncompensated medical service before the rendering of the service by the physician.

Chapter 3 Practice and Procedure in Supreme Court

§ 11-3-3

Appeals from judgments against persons deprived of their liberty in cases of habeas corpus, and from judgment on informations in the nature of quo warranto to try the right to a public office, whether state, district, county, or municipal, and in actions of mandamus where the public interest is concerned, and in cases at law or in chancery involving taxes claimed by the state, county, or municipality, may be returnable before the Supreme Court immediately, without reference to the return days for other appeals; and when the transcript of the record of the case shall be filed in the office of the clerk of the Supreme Court, the appellee having been summoned to appear and answer the appeal, ten days after service of the summons on him or his attorney, the court shall consider such cases as entitled to be heard without regard to the district from which they are brought, and in preference to all civil cases, and they shall be heard and disposed of with all convenient speed.

§ 11-3-5

An appeal to the Supreme Court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because an insufficient amount was paid to prepay the costs or because of any failure by an officer to comply with the requirements of law in reference to appeals; but all defects and irregularities may be cured by amendment so as to perfect the appeal and obtain the judgment of the Supreme Court in the case; but the court may dismiss an appeal for a failure of the appellant to do, within a reasonable time, what may be necessary to perfect his appeal.

§ 11-3-7

In case the judgment, sentence or decree of the court below be reversed, the Supreme Court shall render such judgment, sentence or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision; and when so remanded shall be proceeded with in the court below according to the direction of the Supreme Court, or according to law in the absence of such directions.

§ 11-3-9

A judgment or decree in any chancery or circuit court rendered in a civil case, shall not be reversed or annulled on account of want of jurisdiction to render the judgment or decree.

§ 11-3-11

If an appellant shall voluntarily dismiss his appeal after the transcript of the record has been filed in the Supreme Court, he shall be liable to judgment by said court as in case of an affirmance of the judgment or decree.

§ 11-3-15

After the dismissal of an appeal or supersedeas by the supreme court, another appeal or supersedeas shall not be granted in the same cause, so as to bring it again before the court.

§ 11-3-21

A motion to discharge a supersedeas in an appeal to the Supreme Court may be made before and heard by the court on ten days' notice to the opposite party, at any time before the day to which the appeal is returnable, and the court shall make such orders and render such judgment as may be proper in the case.

§ 11-3-27

In case a bond has been given for a supersedeas, the judgment of the Supreme Court, on affirming the judgment or decree of the court below, or on a dismissal of the appeal by the appellant or the court, shall be for the money adjudged or decreed against appellant, and damages and costs, or for the specific property and damages and costs, or for the damages and costs, as the case may be, against all the obligors in the bond who may be living at that time, and execution may be issued thereon accordingly. If any of the obligors be dead, his representatives may be summoned to show cause why judgment should not be rendered against them on the bond; and if good cause be not shown to the contrary, judgment shall be entered against them in like manner as against the living obligors, and certified to the court below, and execution may be issued thereon.

§ 11-3-31

On receiving the certificate of the clerk of the Supreme Court of the judgment of that court in any matter, it shall be the duty of the clerk of the court below to issue the proper process to enforce the judgment according to its terms.

§ 11-3-33

The sufficiency of a bond in any respect as a security may be excepted to before the Supreme Court, or a judge thereof in vacation, on five (5) days' notice to the opposite party and, if the exception be sustained and the security be not immediately perfected, the appeal shall cease to operate as a supersedeas, and the supersedeas shall be discharged by order of the court or judge, and execution may be issued on the judgment or decree appealed from; and the Supreme Court may give judgment on the bond as in other cases, as if the supersedeas had not been discharged. If necessary, a new execution may be issued on the judgment, although one may have been issued on the discharge of the supersedeas.

§ 11-3-35

No judgment in any case originating in a justice court, or in a municipal court, and appealed to the circuit court, shall be reversed because it may appear in the Supreme Court transcript that the judgment or record of the said justice or municipal court was not properly certified or was not certified at all, or was missing in whole or in part, unless the record further shows that objection on that account was made in the circuit court, in the absence of which objection in the circuit court there shall be a conclusive presumption that the defects in this clause mentioned did not exist in the circuit court proceedings: Provided however, that the foregoing clause shall not apply to cases wherein a record in the supreme court of the transcript from the justice or municipal court is necessary to a fair understanding of the proceedings in the circuit court.

§ 11-3-37

In all cases, civil and criminal, a judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case. And when a judgment or decree shall be affirmed as to some of the appellants and be reversed as to others, the case shall thereafter be proceeded with, so far as necessary, as if the separate suits had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly. Costs may be adjudged in such cases as the supreme court shall deem proper.

§ 11-3-39

Where the judgment appealed from is for property, real or personal, and damages, the supreme court, finding the judgment to be erroneous as to the damages only, may affirm it as to the property and reverse and remand it for a new trial as to the damages, and may adjudge the costs as may be proper.

§ 11-3-41

It shall be the duty of the clerk of the court below, upon receiving the mandate of the Supreme Court, to issue the proper execution on the final judgment or decree, if the same be for the plaintiff in the original cause, for the amount of money or other thing adjudged to the plaintiff, and all costs paid in the court below if not previously paid; and, if the judgment be rendered for the defendant in the original cause, then, on receipt of the mandate, execution shall issue against the plaintiff in the cause for the defendant's costs paid in the court below. In cases where the Supreme Court assesses the costs against the appellee, the appellant shall, with no further court action, be entitled to a judgment against the appellee in the amount expended by the appellant on court costs. The appellee shall be responsible for the cost of collection of this judgment, including attorney's fees. If the Clerk of the Supreme Court fails to issue the mandate as required, he shall forfeit to the aggrieved party One Hundred Dollars ($100.00), to be recovered by motion before the Supreme Court on five (5) days' notice.

§ 11-3-43

In all cases in which the Supreme Court shall reverse the judgment or decree of the court below, and remand the cause to be proceeded within such court, or remand a cause for further proceedings, the Clerk of the Supreme Court shall prepare and certify a copy of the opinion of the Supreme Court in the case, and send it, with the mandate of the judgment or decree rendered in the cause by the Supreme Court, to the clerk of the court from which the cause was brought, or to which it may be remanded. The copy of the opinion furnished shall be preserved by the clerk to whom it is delivered, for the use of the court and parties in the case.

But in all cases wherein the appellant has paid the costs of his appeal and is the successful litigant and the action is reversed and remanded for further proceedings, with costs taxed against the appellee, the action shall not proceed further before the trial court, on application of the appellee, until the appellee has paid to the clerk of the trial court, for the benefit of the appellant, the costs so paid by the appellant in perfecting his successful appeal. Should the appellee fail to make such a refund of costs to the trial court within two (2) years next after the date of the judgment of reversal and remand by the Supreme Court, the appellee, his heirs or assigns, shall not thereafter be entitled to proceed further at his own instance and the appellee's right of action, as well as his remedy, shall be forever barred and extinguished.

Chapter 5 Practice and Procedure in Chancery Courts

§ 11-5-1

Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom, shall be brought in the county where the land, or some part thereof, is situated; suits against executors, administrators, and guardians, touching the performance of their official duties, and suits for an account and settlement by them, and suits for the distribution of personalty of decedents among the heirs and distributees, and suits for the payment of legacies, shall be brought in the chancery court in which the will was admitted to probate, or letters of administration were granted, or the guardian was appointed; other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be; and all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found; and in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court.

§ 11-5-3

The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried to be made up in writing. The jury shall be drawn in open court from the jury box used in the circuit court, in the presence of the clerk of the circuit court who shall attend with the box for that purpose. The number drawn shall not exceed twenty, and the slips containing the names shall be returned to the box. The clerk of the chancery court shall issue the venire facias to the sheriff, returnable as the court shall direct. If there be no jury box the jury may be obtained as provided for in the circuit court in such case. The sheriff and jurors, for failure to perform duty or to attend, shall be liable to like penalty as in the circuit court. The parties shall have the same right of challenge as in trials in the circuit court, and the jury may be completed in the same manner. The chancellor may instruct the jury in the same way that juries are instructed in the circuit court, and the parties shall have the same rights in respect thereto; the instructions shall be filed in the cause and become a part of the record, and the chancellor shall sign bills of exceptions as in the circuit court, and the court may grant new trials in proper cases.

§ 11-5-5

The chancery court may award a change of venue for the trial of all issues to be tried by a jury pursuant to the procedure provided for in the Mississippi Rules of Civil Procedure. The clerk of the court from which the issue is to be removed, and the clerk of the court to which it is removed, respectively, shall, upon an order for a change of venue, discharge the duties directed to be performed by the clerks of circuit courts in such cases; and in such case the chancery court to which the venue is changed shall try the issue by a jury, and shall proceed and render decrees and finally dispose of the cause as if the suit had begun therein.

§ 11-5-31

Answers of defendants out of the state may be sworn to before any commissioner for this state, or any judge, chancellor, or any justice of the peace, notary public, or the mayor or alderman of any city or town, or clerk of a court of record, in the state or country where such defendant may be, if such officer shall be authorized to administer oaths by the law of such state or country; and the certificate of such officer as to his official character, shall be prima facie evidence thereof.

§ 11-5-49

In proceedings in matters testamentary and of administration, in minors' business, and in cases of persons with an intellectual disability, persons with mental illness and persons of unsound mind, as provided for by law, no answer shall be required to any petition or application of any sort. Such a petition or application shall not be taken as confessed because of the lack of an answer, but every petition, application, or account shall be supported by the proper evidence and may be contested without an answer. All such proceedings shall be as summary, as the statutes authorizing and regulating them contemplate; however, when either of the parties having a controversy in court as to any of those several matters requires and the court sees proper, it may direct plenary proceedings by bill or petition, to which there shall be an answer on oath or affirmation. If an adult or sane party refuses to answer as to any matter alleged in the bill or petition and proper for the court to decide upon, the party refusing may be attached, fined, and imprisoned at the discretion of the court, and the matter set forth in the bill or petition shall be taken as confessed and a decree shall be made accordingly.

§ 11-5-51

Where an answer is not necessary in the matters mentioned in Section 11-5-49, anyone desiring to contest any petition or application may file an answer, or may demur to any petition, and in that way test its sufficiency.

§ 11-5-75

The chancery court shall have jurisdiction of causes of action filed under the Uniform Fraudulent Transfer Act. Upon such a complaint, a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for receivers, in same manner as if the creditor had recovered judgment and had execution returned “no property found.” The creditor in such case shall have a lien upon the property described therein from the filing of his complaint, except as against bona fide purchasers before the service of process upon the defendant in the complaint.

§ 11-5-79

The decree of a court of chancery shall have the force, operation, and effect of a judgment at law in the circuit court.

§ 11-5-81

Whenever the court shall render an order, judgment, or decree for the payment of money against any executor, administrator, or guardian, or any other party litigant therein, a compliance with such order, judgment or decree may be enforced by process of fieri facias or garnishment.

§ 11-5-83

Decrees, where a master or special commissioner is not appointed to execute them, shall be executed by the sheriff; and the clerk shall issue all writs of fieri facias, habere facias possessionem, or other final process, according to the nature of the case, directed to the sheriff, and returnable to the next term of the court or at such other time as in a given case may be prescribed.

§ 11-5-85

When a decree shall be made for a conveyance, release or acquittance, or other writing, and the party against whom the decree is made shall not comply therewith, then such decree shall be considered and taken in all courts of law and equity to have the same operation and effect, and shall be as available, as if the conveyance, release, or acquittance, or other writing had been executed in conformity to the decree; or the court may appoint a commissioner to execute such writing, which shall have the same effect as if executed by the party.

§ 11-5-91

A defendant against whom a judgment has been rendered on publication only may request to reopen the judgment pursuant to the procedures provided for in the Mississippi Rules of Civil Procedure. The title to property sold to a purchaser, in good faith, in pursuance of a judgment, shall not be affected by reopening of the judgment.

§ 11-5-93

Every sale of real estate ordered by a decree of any court of chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice as is required in case of sales of land under execution at law. The person making the sale, if made on credit, shall take bond, with sufficient security, in double the amount of the purchase money, payable to the parties entitled to receive the same under the decree, or to such persons as the court may direct, conditioned for the payment of the purchase money, with interest at the rate borne by the decree, to the time when the same, as directed by the decree, shall fall due. Such bond shall be returned and filed in the clerk's office, and if not paid at maturity, shall have the force and effect of a judgment; and the clerk shall issue execution thereon. If any of the obligees be dead, the execution shall be in favor of the survivors and the representatives of those deceased. And in all decrees for the sale of real estate, the chancellor may fix a sum to be paid on sale, and if the sale be not confirmed, the sum so paid shall be returned to the bidder. If the purchaser fail to pay the amount of his bid or to comply with the decree, the amount advanced shall go to the party entitled to the purchase money, and the land shall be resold.

§ 11-5-95

All property may be sold on such terms and at such time and place as the court may direct.

§ 11-5-97

All land sold under decree of the chancery court shall be held liable and subject to a lien for the unpaid purchase money therefor as if a mortgage had been executed by the purchaser and duly recorded; and said lien shall exist until actual payment of the purchase money, or until, by order of the court or chancellor, the same shall be discharged.

§ 11-5-99

A sale of real estate shall not commence before the hour of eleven o'clock on the day appointed, nor continue longer than four o'clock of the same day; but if the time be insufficient to complete the sale, it may be continued from day to day until completed, by giving public notice to the company present at the conclusion of each day's sale; and such sale on the succeeding day shall commence and end as directed for the first day.

§ 11-5-101

In no instance shall the person who makes the sale become, either directly or indirectly, the purchaser at a sale made by him.

§ 11-5-103

And when the sale has been completed, the person making the same shall make report thereof in writing to the court, stating the time and place of sale, the name of the purchaser, and the amount of purchase money, and shall satisfy the court that the directions prescribed in the decree of sale and the law have been followed; and thereupon the court shall proceed to make a decree confirming the sale, unless good reason be shown to the contrary. And the court shall order the person who made the sale to make a conveyance to the purchaser of the land so sold; but if the sale be not reported to the following term, the court may compel the making of a proper report at a subsequent term, and may then confirm or set aside the same; and the person failing to make such report in proper time may be fined, as for a contempt, not exceeding one hundred dollars.

§ 11-5-105

If the executor, administrator, guardian, master, or special commissioner who was ordered to make a sale or lease, shall die, resign, or be removed before doing it, such sale or lease may be made by the successor of such executor, administrator, guardian, master, or commissioner, or by any person appointed by the court or the chancellor in vacation to make it. In case of a death, resignation or removal of an executor, administrator, guardian, master, or commissioner, after making a sale, and before its report or confirmation, or before a conveyance of the title, in case of the sale of land, the court shall ascertain the facts, and, if satisfied that the sale ought to be confirmed, shall make a decree confirming it, and order a conveyance, if land was sold, to be made to the purchaser, either by the successor in the administration or guardianship of the person who made the sale, or by a master or commissioner appointed for that purpose; and such conveyance shall have the same effect to vest the title in the person to whom it is made, as if it had been made and delivered by the person who made the sale.

§ 11-5-107

Reports of sales of lands or leases or of partition in kind, where there is no contest, may be made in vacation to the chancellor, and upon five days' notice to the parties and the purchaser or lessee, or to the parties to the proceedings for partition in kind, of the time and place of hearing the application therefor, or upon such publication for any of the interested parties who may be nonresidents of this state, or who cannot be found upon diligent inquiry, as is required for nonresident or absent defendants in chancery, may be confirmed by him. But the said five days' notice to parties and the purchaser, or lessee or to the parties defendant to the proceedings for partition in kind of the time and place of hearing application therefor, and also such publication for any of the interested parties who may be nonresidents of this state, and to persons who cannot be found upon diligent inquiry, may be dispensed with, provided the interlocutory decree ordering said sale or lease or partition in kind shall specifically designate a definite date and place for the hearing of such application to confirm said report of sale, or lease, or partition in kind before the chancellor in vacation, but said application to confirm shall not be heard earlier than five days after the report of such sale or lease, or partition in kind shall have been filed in the proper court with papers in the cause.

§ 11-5-109

The party who objects to a sale under a decree because of the inadequacy of the bid, or any person interested therein, may prevent the confirmation thereof by entering into a bond in a penalty equal to double the amount of the bid, with sufficient sureties, to be approved by the court or clerk, payable to the opposite party, conditioned to pay all costs of a resale, and that the property shall bring thereat an advance of not less than twenty per centum upon the bid, exclusive of the cost of resale.

§ 11-5-111

Upon the confirmation of the report of sale of any property, real or personal, under a decree for sale to satisfy a mortgage, deed of trust, or other lien on such property, if there be a balance due to the complainant, the court, upon motion, shall give a decree against the defendant for any such balance for which by the record of the case he may be personally liable, upon which decree execution may issue.

§ 11-5-113

All the provisions of this chapter on the subject of sales shall apply to all sales of real estate under any decree in the chancery court made in matters testamentary and of administration, minors' business, cases of persons with an intellectual disability, persons with mental illness and persons of unsound mind, of partition, and all other matters.

§ 11-5-115

When a decree shall be made for the sale or conveyance of the real estate of an infant, such decree shall be binding on the infant unless he shall, within one year after attaining the age of eighteen (18) years, show to the court good cause to the contrary; and it shall not be necessary to insert the saving in the decree, but the saving shall not extend to decrees for the sale of the property of deceased persons, authorizing sales by guardians, or enforcing deeds of trust or mortgages.

§ 11-5-117

(1) In addition to the law now in force authorizing the chancery court to decree the sale of land and personal property, the chancery court and the chancellor in vacation are authorized in all matters providing for a sale or lease of real and personal property, including matters testamentary and of administration, minors' business, persons with mental illness, partition and receivers, to order or decree the sale or lease of real and personal property or any interest in the property, including timber, oil, gas and minerals, at private sale, under such terms and conditions as the chancellor may impose. If all of the terms of sale are made certain by the order or decree, a deed or lease executed in full compliance with the order or decree shall become immediately effective without further confirmation by the court or chancellor.

(2) This section shall not be construed to invalidate any proceedings previously done in conformity with this section.

§ 11-5-123

When it shall be alleged that the security on an injunction or receiver's bonds, or any bond taken upon any proceeding in the chancery court, is insufficient, the chancellor shall have power to hear and determine the same in vacation, as well as in term time, and may order the injunction to be dissolved, or the receiver to be suspended or removed, or may make such other order as may be just and equitable in the case, unless a new bond with sufficient sureties be given within twenty days, or such time as he shall appoint; but if done in vacation, at least five days' notice of the time and place of making the application shall be given to the opposite party.

§ 11-5-151

Receivers may be appointed by the chancellor in vacation, as well as by the chancery court in term time; and any receiver may be removed by the chancellor in vacation, as well as by the chancery court in term time; but before any receiver shall be so removed in vacation, the party applying therefor must give the adverse party, or his solicitor, and the receiver five days' notice of the time and place of presenting such application; such application may be heard in term time on two days' notice.

§ 11-5-153

A receiver shall not be appointed without the party praying the appointment having given the opposite party at least five days' notice of the time and place of making the application, unless it shall appear that an immediate appointment is necessary, or good cause be shown for not giving notice.

§ 11-5-155

Before any receiver shall be appointed without notice, the party applying for the appointment shall execute bond, payable to the adverse party, in a sufficient penalty to be fixed by the court or chancellor, with sufficient sureties, conditioned to pay all damages that may be sustained by the appointment of such receiver in case the appointment be revoked; and said bond shall be filed in the cause, and damages may be recovered thereon in the suit in the same manner as damages are recoverable on an injunction bond or the party entitled to damages may maintain an independent suit on such bond for such damages.

§ 11-5-157

On an application for the appointment of a receiver, the court or chancellor may, in the exercise of sound discretion, in lieu of a receiver, order that the party against whom the receiver is asked, execute bond, to be approved by the court or chancellor, payable to the party who asks for the appointment, with sufficient sureties, in a sufficient penalty, to be fixed by the court or chancellor, conditioned according to the nature of the case, as the court or chancellor may direct. Upon the execution, approval, and filing of such bond, the receiver shall not be appointed; and any decree rendered in the cause on final hearing against the principal obligor in the bond shall be rendered against the sureties therein, within the scope of its conditions and penalty. On an application to remove a receiver who shall have been appointed without notice, the court or chancellor may exercise the same discretion, and, in lieu of retaining the receiver, may remove him upon the execution, approval, and filing of such bond; and decree may be rendered thereon as if given on the application for the appointment of a receiver.

§ 11-5-159

Every receiver, when appointed, shall, before being authorized to act as such, give bond, payable to the state, in such penalty and with such sureties as may be approved by the court or chancellor, conditioned that he will in all things faithfully discharge the duties of his office as receiver; which bond shall be filed with the clerk of the court, and may be put in suit, in the name of the state, for the use of the party aggrieved, from time to time, until the whole penalty shall be recovered.

§ 11-5-161

Receivers shall be subject to the orders, instructions, and decrees of the court, and of the chancellor in vacation; and they, or any party in interest, may apply therefor in term time, or to the chancellor in vacation, or for modifications of previous orders or instructions; and obedience thereto may be enforced by attachment.

§ 11-5-163

In all cases in which it may be thought to be necessary for the protection of the estate of decedents, minors, and persons of unsound mind, a receiver may be appointed, either by the court or by the chancellor in vacation, subject to the provisions of sections 11-5-151 to 11-5-161.

§ 11-5-165

When money shall be paid into court under its order, a receiver may be appointed to keep the same, who shall give bond and security as in other cases; but if the money shall be ordered to be paid to the clerk of such court, his official bond shall cover it, and an additional bond may be required if the court or chancellor shall think proper.

§ 11-5-167

Receivers shall be entitled to have such compensation for their services as the court shall allow, and shall have a lien upon the property in their hands for the payment thereof, and of their necessary expenses. The court shall make such order to compel the payment thereof as may be just and necessary, and may decree the payment thereof by any of the parties as a portion of the costs of the suit.

Chapter 7 Practice and Procedure in Circuit Courts

§ 11-7-1

All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

§ 11-7-3

The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. If in any case a transfer or assignment of interest in any demand or chose in action be made in writing before or after suit is filed, to an attorney or firm of attorneys, appearing in the case, it shall be sufficient notice to all parties of such assignment or transfer, if such assignment or transfer be filed with the papers in said cause, and such attorney or attorneys shall not be required to be made parties to said suit. An “assignee” for purposes of this section includes both absolute assignees, with or without recourse, and conditional or limited assignees including assignees for collection purposes.

§ 11-7-5

A setoff or other defense existing under Section 11-7-3 at the time of or before notice of the assignment shall not be prejudiced thereby.

§ 11-7-7

Any chose in action or any interest therein, after suit has been filed thereon, may be sold or assigned the same as other property, whether such claim or any interest therein was heretofore assignable under the laws of this state or not. Such sale shall be evidenced by writing signed and acknowledged by the party making the same, which shall be filed with the papers of such suit. After such filing, it shall be the duty of the clerk, in whose office such papers are kept, to make a minute of such sale or transfer on the trial docket where the suit is entered, giving briefly the substance thereof, for which he shall be entitled to a fee of Twenty-five Cents (25¢), to be paid by the party applying therefor. Such transfer when so made and dealt with shall be valid and binding upon all persons thereafter dealing with such claim, whether they have actual notice thereof or not.

§ 11-7-9

An unmarried female may prosecute an action for her own seduction, and recover damages.

§ 11-7-11

A parent may bring an action for the seduction of a child, although such child be not living with nor in the service of the plaintiff, and though there be no loss of service; but a recovery by the parent or child shall bar any other action for the same cause.

§ 11-7-12

(1) If a check, draft or order is made, drawn, issued, uttered or delivered in violation of Section 97-19-55, the payee, endorser or his assignee shall be entitled to collect, in addition to the face amount of the check, draft or order, a service charge of Forty Dollars ($40.00).

(2) In any civil action founded on a check, draft or order made, drawn, issued, uttered or delivered in violation of Section 97-19-55, the plaintiff, if he be a payee, endorser, holder or assignee, shall be entitled to recover, in addition to the face amount of the check, draft or order, damages in the following amount:

(a) If the amount of the check, draft or order is up to and including Twenty-five Dollars ($25.00), then the additional damages shall be:

(i) A service charge of Thirty Dollars ($30.00); and

(ii) In the event suit is filed by a licensed attorney, reasonable attorney's fees as determined by the judge.

(b) If the amount of the check, draft or order is above Twenty-five Dollars, then the additional damages shall be:

(i) A service charge of Forty Dollars ($40.00); and

(ii) In the event suit is filed by a licensed attorney, reasonable attorney's fees as determined by the judge.

(c) The payee, endorser, holder or assignee of a check, draft or order may claim in a single civil action all checks, drafts or orders made, drawn, issued, uttered or delivered in violation of Section 97-19-55 by a single drawer without regard to venue or the identity or number of payees on those instruments.

(d) The provisions of this section shall also apply to electronic transfers of funds.

§ 11-7-13

Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.

Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or interested party may bring an action pursuant to the provisions of this section outside an estate, regardless of whether there are real or personal assets of an estate. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

The list of persons in this section who may bring a wrongful death action is exclusive and only those persons shall be considered interested parties who are entitled to bring an action under this section.

A defendant in an action under this section is authorized within ninety (90) days of filing an answer, to request that the plaintiff initiate the process of determining heirs. Such determination must be resolved before commencement of trial.

§ 11-7-15

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

§ 11-7-17

All questions of negligence and contributory negligence shall be for the jury to determine.

§ 11-7-18

Except as otherwise provided in Sections 75-2-314, 75-2-315 and 75-2-719, there shall be no limitation of remedies or disclaimer of liability as to any implied warranty of merchantability or fitness for a particular purpose in a sale to a consumer, as defined in Section 75-1-201(b)(11), of consumer goods, as defined in Section 75-9-102(a)(23). The provisions of this section may not be waived or varied by agreement.

§ 11-7-19

In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master. This rule shall not apply to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them.

§ 11-7-20

In all causes of action for personal injury or property damage or economic loss brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action.

§ 11-7-29

When judgment shall have been rendered against two or more persons, and any one or more of them shall die, such judgment shall survive against the representatives of the deceased parties and the survivor. A scire facias may issue against the survivor, jointly with the representatives of the deceased parties; and such judgment may be thereupon revived, and execution issued in like manner.

§ 11-7-41

In actions on written instruments, the defendant may be sued by the initial letters or contraction of the Christian name, used by him in his signature to such writing.

§ 11-7-43

In actions against one or more of several partners, it shall be sufficient to declare that he or they made the contract or executed the writing sued on by the co-partnership name, or other signature affixed to such writing.

§ 11-7-67

Where there shall have been mutual dealings between two or more persons, and one or more of them shall die before an adjustment of such dealings, the lawful demands of such parties against each other shall be a good payment, or setoff, to the amount thereof, notwithstanding the estate of one or more of such deceased persons shall be insolvent; and only the balance due shall be the debt.

§ 11-7-73

In actions in justice court for trespass on land, the defendant may plead that he disclaims any title or claim to the land in question, and that the trespass was involuntary or by negligence, and that he tendered or offered sufficient amends therefor before suit brought, and he shall thereupon bring the amount so tendered into court; and unless the plaintiff in such action shall recover more damage than the amount so tendered, he shall be adjudged to pay the costs of the action.

§ 11-7-107

A right by virtue of a private way may be pleaded generally in the same manner as if pleading a public way.

§ 11-7-131

The judge may take a case under advisement until the next term. If an issue of fact be involved, before taking it under advisement, he shall, on notice to each party, cause the evidence on both sides to be reduced to writing and signed by him. At the next term, the judge shall deliver his opinion in writing, and the evidence and opinion shall be a part of the record without a bill of exceptions. Either party prosecuting an appeal may avail himself of all questions arising upon the record.

§ 11-7-135

In cases tried by the court, either party may take bills of exception, and have an appeal, as in case of trial by jury.

§ 11-7-147

Before the introduction of the evidence, the plaintiff may briefly state his case orally to the jury, and the evidence by which he expects to sustain it. Then the defendant may briefly state his case, and the evidence by which he expects to support it.

§ 11-7-149

The sheriff, bailiff, or other officer, shall not be in the room or converse with a juror after the jury has retired from the bar, save by order of the court. A violation of this section shall subject the offender to a fine of fifty dollars and one week's imprisonment for a contempt.

§ 11-7-151

All papers read in evidence on the trial of any cause may be carried from the bar by the jury.

§ 11-7-155

The judge in any civil cause shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence.

§ 11-7-157

No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein.

§ 11-7-159

If the verdict is informal or defective, the court may direct it to be reformed at the bar. Where there has been a manifest miscalculation of interest, the court may direct a computation thereof at the bar, and the verdict may, if the jury assent thereto, be reformed in accordance with such computation.

§ 11-7-161

If the verdict is not responsive to the issue submitted to the jury, the court shall call their attention thereto and send them back for further deliberation.

§ 11-7-163

If, on an issue concerning several things in one count, a verdict be found for only part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted.

§ 11-7-165

(1) In a civil action where it is proven that a person took property having a value of Two Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable adult by conversion, embezzlement, extortion, theft or fraud without the owner's consent, or obtained the owner's consent by intimidation, deception, undue influence or by misusing a position of trust or a confidential relationship with the owner, then whether the action is to recover the property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property embezzled, converted or otherwise stolen, in addition to any other damages.

(2) For purposes of this section, “position of trust” shall include, but not be limited to, a person who:

(a) Is named the attorney-in-fact in a power of attorney, whether executed before or after the adult became vulnerable;

(b) Has assumed a duty to provide care to the vulnerable adult;

(c) Is in a fiduciary relationship with the vulnerable adult, including a de facto guardian or de facto conservator; or

(d) Is a joint tenant or tenant in common with the vulnerable adult.

(3) “Vulnerable adult” shall have the meaning defined in Section 43-47-5, Mississippi Code of 1972.

(4) Civil remedies provided under this section shall be supplemental and cumulative, and not exclusive of other remedies afforded under any other law. Damages awarded under this section are remedial and not punitive, and do not limit and are not limited by any criminal action or any other provision of law. Any civil damages paid by the civil defendant shall reduce the amount such defendant, upon conviction, may be ordered to pay in restitution, and any restitution paid under a criminal penalty shall reduce any civil damages owed.

(5) The cause of action, the right to bring a cause of action, or the right to seek treble damages pursuant to this section shall not be limited or affected by the death of the owner.

§ 11-7-169

In all actions in which the right to real or personal estate is in controversy, the court or the judge thereof shall make an order for the protection of the property in controversy from waste or destruction, and to prevent the removal of personal property beyond the jurisdiction of the court, upon satisfactory proof being made of the necessity for such order, and may enforce such order by an attachment for contempt and other proper process; but in all such cases the court or judge may require a bond of the party applying for the order, in an adequate penalty, payable to the opposite party, with sufficient sureties, to be approved by the court or judge, conditioned to pay all such damages as may be suffered by reason of such order in case the principal obligor be cast in the suit.

§ 11-7-173

In an action brought upon a bond for the payment of money, wherein the plaintiff shall recover, judgment shall be entered for the penalty of the bond, to be discharged by the payment of the principal and interest due and costs of suit, and execution shall issue accordingly. However, if before judgment the defendant shall bring into court the principal and interest due upon the bond, he shall be discharged, and in that case judgment shall be entered for the costs alone.

§ 11-7-175

Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any ship or vessel, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against the said ship or vessel, or in personam against the owners thereof, or those having control of her, and to recover damages in respect thereof, then, in every such case the ship or vessel, which, had not death ensued, would have been liable to an action for damages, or to a libel in rem, and her owners, or those responsible for her acts or defaults or negligence to a libel in personam, shall be liable for all damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

§ 11-7-181

A person indebted to another in any sum of money within the jurisdiction of the circuit court, on any promise, agreement, or covenant, may sign an office confession of judgment in the clerk's office of the circuit court, in the manner following, to wit: The creditor shall file in the clerk's office a statement, under oath, substantially to the effect following, viz.:

“The State of Mississippi, __________ County.

In the circuit court of said county, ___ day of __________, A.D. . states, on oath, that __________ is justly indebted to him for the amount of __________ dollars on an instrument of writing in the following words and figures, viz.: (here copy the same), and in case of indorsement say indorsed as follows: (here copy the indorsement), or on open account, of which a copy is hereto attached, which remains due and unpaid, and that said sum of money is not due or claimed under a fraudulent or usurious consideration.

(Signed)

“Sworn to and subscribed the ___ day of __________ A.D.__________ before me. “__________, Clerk.”

And if the evidence of the debt be in writing, the same shall be filed with said statement; and if not in writing, then a copy of the open account shall be filed; and the party indebted shall sign, before the clerk, an acknowledgment written upon or annexed to such statement, to the effect following, to wit:

“I do hereby acknowledge myself indebted to the said __________ in the sum of __________ Dollars, which includes interest up to the first day of the next term of the said circuit court, and I give my consent for judgment to be rendered against me in favor of said __________, at the next term of said circuit court for said amount and all legal costs accruing thereon, with stay of execution (if any) until (as may be agreed upon).

“Taken and acknowledged the ___ day of ___, A.D. ___, before me.

“___________________________, Clerk.”

§ 11-7-183

When such statement and acknowledgment are filed, the clerk shall docket the cause on the appearance docket, and at the next term on the motion of the plaintiff, the court shall render judgment thereon for the amount acknowledged to be due, with interest from the first day of the term, and with such stay of execution, if any, as may be stipulated; and such judgment shall be final unless set aside during the term, and shall be as binding and obligatory as a judgment rendered in any other form; and a full and complete final record shall be made therein as in other cases.

§ 11-7-185

A judgment rendered on office confession shall be void in toto as to third parties, if tainted with fraud or usury.

§ 11-7-187

A judgment on confession shall be equal to a release of all errors; but all powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error made or to be made by any person before action brought, shall be absolutely null and void.

§ 11-7-189

(1) The clerk of the circuit court shall procure and keep in his office one or more books to be styled “The Judgment Roll,” which book or books shall be appropriately divided under the several letters of the alphabet, and on each page shall be placed the following captions:

| Defendant's | | | | | | --- | --- | --- | --- | --- | | Name and | | | | | | Name of | | | | | | Defendant's | | | | | | Attorney | | | County | Social | | and Post | | | and | Security | | Office | Amount of | | Court | or Tax | | Address of | Judgment | Date of | in Which | Identification | | Each | or Decree | Rendition | Rendered | Number | | | Plaintiff's Name, | | | | | | Plaintiff's | | | | | Date, Hour | Attorney, | When and | | | | and Minute of | and Post Office | How | | | | Enrollment | Address of Each | Satisfied | Remarks | |

The clerk shall, within twenty (20) days after the adjournment of each term of court, enroll all final judgments rendered at that term in the order in which they were entered on the minutes by entering on The Judgment Roll, under the proper letter or letters of the alphabet, the name of each and every defendant to such judgment, the post office address of each defendant, and the social security or tax identification number of each defendant if such information is known or readily ascertainable, and if such defendant or defendants have an attorney at law in such case the name and post office address of such attorney or firm of attorneys if such post office address is known or readily ascertainable; the amount of such judgment; date of rendition; county and court in which rendered; the date, hour and minute of enrollment; and the name of the plaintiff or plaintiffs and the post office address of each plaintiff if readily ascertainable, and if represented by an attorney at law or a firm of attorneys then the name and post office address of such attorney or firm of attorneys if the post office address is known or readily ascertainable. The name of the attorney or firm of attorneys and post office addresses of the parties may be subsequently inserted by the clerk at any time.

Notwithstanding the foregoing, the failure to list a social security number on a judgment shall not invalidate said judgment nor shall it make the party failing to list said judgment liable for such failure to list or the recording official liable for such failure.

(2) Any attorney of record representing a plaintiff or plaintiffs in the case may, for and on behalf of his client or clients, satisfy in whole or in part a judgment on such Judgment Roll by endorsing thereon the extent of such satisfaction and signing an entry so showing, and when so satisfied the clerk shall attest and subscribe such endorsement under the proper heading therein. When any judgment shall otherwise be satisfied, the clerk shall so enter under proper heading and subscribe the entry.

(3) The Judgment Roll may be kept on computer as provided in Section 9-7-171. In such case the plaintiff or attorney representing such plaintiff shall present to the clerk a sworn affidavit directing the clerk to cancel or otherwise show as satisfied the judgment recorded under this section.

§ 11-7-191

A judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor and all persons claiming the property under him after the rendition of the judgment. A judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled. In counties having two (2) judicial districts, a judgment shall operate as a lien only in the district or districts in which it is enrolled. Any judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state, and shall not be enforced or satisfied against any such property.

§ 11-7-193

A junior judgment creditor may give written notice to any senior judgment creditor requiring him to execute his judgment; and if the senior judgment creditor, being so notified, shall fail, neglect or refuse to have execution issued, and levied within ten days from said notice for the satisfaction of his judgment, he shall lose his priority, and the junior judgment creditor may cause execution to issue on his judgment and to be levied on any of the property of the defendant, and the proceeds of a sale thereof shall be applied to the junior judgments so levied.

§ 11-7-195

A judgment or decree rendered in any court of the United States or of this state shall not be a lien upon or bind any property of the defendant situated out of the county in which the judgment or decree was rendered until the plaintiff shall file in the office of the clerk of the circuit court of the county in which such property is situated an abstract of such judgment or decree which has been certified by the clerk of the court in which the same was rendered containing the names of all the parties to such judgment or decree, its amount, the social security or tax identification number of the defendant if such information is known or readily ascertainable, the date of the rendition, and the amount appearing to have been paid thereon, if any. It shall be the duty of the clerk of the circuit court on receiving such abstract and on payment of the fees allowed by law for filing and enrolling the same, to file and forthwith enroll the same on The Judgment Roll, as in other cases. Such judgment or decree shall, from the date of its enrollment, be a lien upon and bind the property of the defendant within the county where it shall be so enrolled. If a foreign judgment has been filed in any county of this state pursuant to Sections 11-7-301 through 11-7-309 and such judgment may be enforced in such county, then, for purposes of this section, such judgment shall be treated as if it had been rendered in such county and may be enrolled on The Judgment Roll in other counties pursuant to the provisions of this section. Any judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state and shall not be enforced or satisfied against any such property.

§ 11-7-197

Judgments and decrees, at law or in equity, rendered in any court of the United States held within this state, or in the Supreme Court or the court of chancery of this state, shall not be a lien upon or bind the property of the defendant within the county in which such judgments or decrees may be rendered, until an abstract thereof shall be filed in the office of the clerk of the circuit court of the county and enrolled on the judgment roll, in the manner and on the terms hereinbefore provided in Section 11-7-195. Such judgments and decrees shall bind the property of the defendants from the date of such enrollment, in like manner as judgments and decrees rendered in a different county and so enrolled.

§ 11-7-199

A growing crop shall not be subject to the lien of a judgment.

§ 11-7-201

It shall not be necessary to revive a judgment by scire facias because no execution shall have been issued on such judgment within a year and a day after its rendition, but execution may be issued without such revival.

§ 11-7-211

Bills of exception, with the approval of the trial judge, may be amended at any time before the hearing on appeal, for the purpose of curing omissions, defects, or inaccuracy; but no such amendment shall be made until the parties interested shall have been given five days' notice of such proposed amendment.

§ 11-7-217

The clerk of the circuit court shall, immediately after the adjournment of every term, issue execution according to the nature of the case, for all fines, penalties and forfeitures assessed by the court, or which shall have accrued to the state or to the county, and remaining due and unpaid. Said clerk shall, within thirty days after such adjournment, transmit a list of said executions to the clerk of the board of supervisors of the county, noting the names of the defendants, the amounts, and the sheriff or other officer to whom the same was delivered; and, at the same time, he shall transmit to said clerk a statement of the returns made by the sheriff or other officer on execution for fines, penalties, and forfeitures returnable to the last term of the court. Any circuit court clerk who shall fail to issue such executions, or to transmit the lists thereof as required, shall forfeit and pay the sum of two hundred dollars for every such offense, to be recovered by the state or county, on motion against him and his sureties by the district attorney, before the circuit court. The clerk of the board of supervisors shall notify the district attorney of such default.

§ 11-7-219

If any sheriff or other officer shall return on any such writ of execution, that he hath levied the fine, penalty, or forfeiture therein mentioned, or any part thereof; or, that he hath taken the body of the defendant, and shall have suffered such defendant to escape; or, if any person be committed to the custody of such sheriff or other officer until the fine, penalty, or forfeiture for which he was committed shall be paid, and such sheriff or officer shall permit such defendant to escape; or, if such sheriff or officer shall have received such fine, penalty, or forfeiture, or any part thereof, and shall not immediately account to the clerk of the board of supervisors and pay the same into the treasury of the county, then, in either of the cases above specified, it shall be the duty of said clerk to notify the district attorney of such default, who shall thereupon, on motion at the next term of the circuit court, demand judgment against such sheriff, or other officer, and his sureties, for the fines, penalties, and forfeitures mentioned in such writs, or for so much thereof as he shall have received on such execution or commitment, or the whole amount thereof in case he shall have suffered such defendant or defendants to escape; and the court shall give judgment accordingly, and award execution thereon.

§ 11-7-221

Clerks, sheriffs, and other officers shall be liable to the same proceedings for any neglect of duty, in respect to executions for fines, penalties, and forfeitures, as in case of executions in civil cases.

§ 11-7-301

In Sections 11-7-301 through 11-7-309 “foreign judgment” means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

§ 11-7-303

A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state or any rule promulgated and adopted by the Mississippi Supreme Court may be filed in the office of the clerk of the circuit court of any county in this state. Said clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any county in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of any county in this state and may be enforced or satisfied in like manner, subject to the provisions of Section 15-1-45. Any foreign judgment for the purpose described in Section 85-3-52 shall not be a lien on any property in this state, real, personal or mixed, that is owned by a resident of this state, and shall not be enforced or satisfied against any such property.

§ 11-7-305

(1) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of the circuit court, as the case may be, an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor.

(2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

(3) No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until twenty (20) days after the date the judgment is filed.

§ 11-7-307

(1) If the judgment debtor shows the circuit court of any county that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.

(2) If the judgment debtor shows the circuit court of any county any ground upon which enforcement of a judgment of any court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

§ 11-7-309

The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under Sections 11-7-301 through 11-7-309 remains unimpaired.

Chapter 9 Practice and Procedure in County Courts and Justice Courts

§ 11-9-1

Whenever under any statute a writ is made returnable to, or the institution of any suit or proceeding is required to be in, a justice court, general or special, or a circuit or chancery court, or when in respect to such matters any justice court judge, or clerk, or judge or chancellor, or other officer, is empowered to do any act in or about any of said courts, the said writs may be made returnable to the county court in any cause or matter there pending or which, within its jurisdiction, is there to be instituted, and all the said acts of the officers aforesaid may be done in behalf of or in respect to the county court in all such matters and causes to the same extent as had the county court been expressly included in each and every of such statutes first aforementioned.

§ 11-9-3

The venue of actions, suits and proceedings in the county court shall be the same as that now generally provided, or which may hereafter be provided with respect to the particular action, suit or proceedings. Provided, however, that all suits and matters filed in the county court which, if there were no county court, would be triable in the justice court, shall be tried at the courthouse of the county or courthouse of the proper judicial district in counties having two (2) circuit and chancery court districts therein.

§ 11-9-101

(1) The jurisdiction of the justice court shall be coextensive with its county, and any process may be issued in matters within its jurisdiction, to be executed in any part of the county. Every defendant may be sued only in the county in which he resides or where the cause of action arose and if a defendant does not reside in the State of Mississippi or has no fixed place of residence, he shall be sued in the county where the cause of action arose. Whenever by reason of interest, relationship to one of the parties, or other like cause, any justice court judge shall be disqualified to preside in any case before him, the same shall be transferred to a justice court judge in the county, free from such objection, who shall hear and determine the same. Nothing herein contained shall be construed as authorizing or empowering the clerk of the justice court or any justice court judge to perform any official act outside of the territorial boundaries of their county.

(2) The provisions of this section shall not apply to any cause of action commenced before January 1, 1984; and any such action shall be concluded in accordance with state law as it was constituted before that date.

§ 11-9-103

In suits or proceedings against two (2) or more defendants, jointly or jointly and severally liable, it shall be lawful to bring the suit in the justice court of the county wherein either of the defendants reside or where the cause of action arose; and such justice court shall have power to issue a summons or other process to bring in all codefendants from any other county.

§ 11-9-105

Anyone desiring to sue in the justice court shall lodge with the clerk of the justice court the evidence of debt, statement of account, or other written statement of the cause of action. The clerk shall record all filings and shall, as far as practicable, assign the cases to each justice court judge in the county on a rotating basis to insure equal distribution of the cases among the judges of the county; however, in all counties in which the courtrooms provided by the county for use of the justice court judges are located in more than one (1) place in the county, the clerk, in addition to assigning cases to the judges on a rotating basis, may also assign a courtroom for each case, such assignment may be made based upon the proximity of the courtroom to the defendant's residence or place of business. The clerk shall issue a summons for the defendant, returnable to the next term of the court of the justice court judge to which the case is assigned, which shall be executed five (5) days before the return day; but if the process be executed less than five (5) days before the return day, the service shall be good to require the appearance of the defendant at the term next succeeding the one to which it is returnable. Any summons issued within five (5) days before a term of the court shall be made returnable to the next succeeding term, unless a shorter day be named, in pursuance of the provision for a trial without delay in the case of nonresident or transient defendants. When the case has been recorded and assigned and process issued, the clerk shall, within two (2) working days, forward certified copies of all documents pertaining to the case to the justice court judge to which the case is assigned for further processing.

§ 11-9-107

When any process has not been returned by a constable within ten (10) working days after issuance by the clerk of the justice court, the clerk shall direct the sheriff of his county and his deputies to execute any such process of the justice court; and the sheriff and his deputies shall execute any process so directed to him by any clerk of the justice court.

§ 11-9-109

In cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the clerk of the justice court may appoint some reputable person to execute any process, the clerk to be liable on his bond for all damage which may result to a party to the cause or other person from his appointment of an insolvent or incompetent person.

§ 11-9-111

Property seized in execution of any process by one appointed by the clerk of the justice court to execute it shall be immediately delivered, with the process, to the sheriff of the county; and the person from whom the property was taken shall be at once informed who has it. Such property shall be considered and dealt with as if it had been seized by the officer to whom it was delivered at the time of its delivery to him.

§ 11-9-113

The process so delivered to the sheriff or constable shall be returned by him to the clerk of the justice court, according to its command.

§ 11-9-115

The justice court judge before whom any cause is pending shall direct the clerk of the justice court to issue all subpoenas for witnesses which either of the parties may require, and such subpoenas shall be returnable on a day certain, giving reasonable time for attendance. If any witness, duly subpoenaed, shall fail to appear in pursuance of the subpoena, he shall forfeit the sum of ten dollars ($10,00), for the use of the party in whose behalf he was subpoenaed, for which the justice court judge may enter judgment nisi, which shall be made final in case the witness, on being duly subpoenaed to appear and show cause, shall fail to appear and show cause for such default. The justice court may issue an attachment for such witness, as a circuit court may do in like case.

§ 11-9-117

The judgment nisi against a defaulting witness, may be in the following form, viz.:

“__________, being subpoenaed to appear this day as a witness for __________, the __________, in the case of __________ v. __________, No. __________, and having made default, judgment is given against said __________, the defaulting witness, for ten dollars, in favor of __________, to be made final unless said __________, the witness, shall show cause against it according to law.”

§ 11-9-119

The scire facias to be issued by the justice for a defaulting witness may be as follows, viz.:

“The State of Mississippi.

“To any lawful officer of __________ County:

“This is to command you to make known to __________ that a judgment in favor of __________ for ten dollars has been given against him by me, a justice of the peace of __________ County, for his default in not appearing before me, at __________, on the ___ day of __________ A.D. __________, to testify as a witness for __________ in the case of __________ against , No. as he has been subpoenaed to do; and unless, on the ___ day of __________, A.D. __________, before me at __________, at __________, o'clock, __________, he shall show cause to the contrary, the said judgment will be made final; and have there then this writ.

“Witness my hand this the ___ day of , A.D. J.P.”

§ 11-9-121

An attachment for a witness may be in the following form, viz.:

“The State of Mississippi.

“To any lawful officer of __________ County:

“We command you to take the body of __________, and have him before the undersigned justice of the peace of __________ County, at __________, on the ___ day of , A.D. at __________ o'clock __________, to testify for the __________ in the case of __________ against __________, No. __________. (But if the said __________ shall furnish bail, with sureties, to be approved by you, in the sum of one hundred dollars, for his appearance at said time and place, you will discharge him.) And have there then this writ.

“Witness my hand, the ___ day of __________, A.D. __________”

The part in brackets should be omitted, if it be not intended that the witness shall be discharged on bail, but shall be brought before the court by the officer. An attachment and scire facias for a defaulting witness may be combined in one writ, and when the witness is before the justice of the peace in pursuance of such process, the judgment nisi shall be made final, if good cause to the contrary be not shown.

§ 11-9-123

The entry of final judgment in such case may be in the following form, viz.:

“__________ being duly summoned to appear and show cause against the judgment nisi for ten dollars entered against him in favor of , as a defaulting witness in the case of __________ v. No. __________ on the ___ day of __________ A.D. __________, and having failed to show cause for such default, the said judgment nisi for ten dollars is now made final, as well as judgment for costs in said matter, this the ___ day of __________ A.D. __________.”

§ 11-9-125

The defendant in any action shall, on or before the return day of the summons, and before the trial of the case, file with the justice court judge to whom the case is assigned the evidence of debt, statement of account, or other written statement of the claim, if any, which he may desire to and which lawfully may be set off against the demand of the plaintiff, and, in default thereof, he shall not be permitted to use it on the trial.

§ 11-9-127

On the return day of the summons, unless continued, the justice court judge shall hear and determine the cause if both parties appear; give judgment by default if the defendant fails to appear and contest plaintiff's demand, or judgment of nonsuit against the plaintiff if he fails to appear and prosecute his claim; enter judgment in favor of the defendant where, in case of setoff, it shall appear that there is a balance due him, for the amount of such balance, and, when requested, issue execution against the goods and chattels, lands and tenements, of the party against whom judgment is rendered, for the amount of the judgment and costs, or costs alone, as the case may require, returnable to a day more than twenty (20) days after the rendition of the judgment, and not more than six (6) months after the issuance of the execution; and the execution may be directed to the proper officer of any county in this state.

§ 11-9-129

Judgments rendered by justices of the peace shall operate as a lien upon the property, real or personal, of the defendant or defendants therein, found or situated in the county where rendered, or in any other county where the same may be, which is not exempt by law from execution, if an abstract of the judgment be filed with the clerk of the circuit court of the county wherein the property is situated, and entered upon the judgment roll, as in other cases of enrolled judgments. The lien shall commence from the date of enrollment, and the judgment may be enrolled and have the force and effect of a lien in all cases where an appeal is taken, as well as in other cases. And in the event of a reversal of the judgment of the justice's court, the clerk of the circuit court shall enter a memorandum to that effect on the judgment roll.

§ 11-9-131

An execution shall not issue on any judgment of a justice of the peace until ten days after its rendition, unless the party recovering therein shall make and file an affidavit that he believes he will be in danger of losing his debt or demand by such delay, in which case execution shall issue immediately; but the opposite party shall not be deprived of his right of appeal within the time prescribed.

§ 11-9-133

An execution may be in the following form, viz.:

“The State of Mississippi.

“To any lawful officer of __________ County:

“We command you that of the real and personal estate of __________ you cause to be made __________ dollars, adjudged by the undersigned, justice of the peace of the county of __________ in said state, on the ___ day of __________ A.D. __________, to __________, also interest at __________ per centum on said sum until you shall make said money, and costs to amount of __________ dollars, as taxed, and costs to accrue under this execution, to be taxed by you; and have said money before me on the ___ day of __________, A.D. __________, and have there then this writ.

“Witness my hand the ___ day of __________ A.D.__________ J. P.”

Detailed statement of costs, giving each item separately and specifying the law for it, the section and paragraph thereof, viz.; “Issuing summons, $, serving summons $,” etc.

§ 11-9-135

Proceedings in replevin, attachment, trial of a claim to property levied on, and for the enforcement of statutory liens before justices of the peace, shall be, as far as practicable, according to those in the circuit courts, in all like cases.

§ 11-9-137

When any suit brought before a justice of the peace shall be finally decided on its merits by the justice, it shall be a bar to a recovery for the same cause of action or setoff in any other suit.

§ 11-9-139

If the party against whom judgment is given, shall, within ten days thereafter, procure some responsible person to appear before the justice, and in writing, to be entered on the docket of the justice and signed by such person, consent to become surety therefor, the justice shall grant a stay of execution for thirty days from the date of the judgment on all sums not exceeding fifty dollars and for sixty days on all sums over fifty dollars. In case the money be not paid at the expiration of such stay, execution shall issue against the principal and sureties, or either of them, for the principal, interest, and costs.

§ 11-9-141

A party obtaining a stay of execution shall thereby waive all errors in the judgment and abandon the right of appeal and certiorari.

§ 11-9-143

On or before the return day of the process either party may demand a trial by jury, and thereupon the justice of the peace shall order the proper officer to summon six persons, competent to serve as jurors in the circuit court, to appear immediately, or at such early day as he may appoint, whether at a regular term or not, who shall be sworn to try the case; but each party shall be entitled to challenge peremptorily two jurors, and as many more as he can show sufficient cause for. If a sufficient number of jurors shall not appear, others may be summoned until a jury is made up, to consist of six, against whom legal objections shall not exist. If the jury fail to agree, it may be discharged and another jury summoned, and so on until a verdict is obtained, and judgment shall be entered by the justice on the verdict.

§ 11-9-145

If a justice have more jury cases than one on the same day, he shall use the same jury for the trial of each, subject to the right of challenge by either party and like proceedings in all respects as in other cases. If more cases than one be tried by the same jury, the justice shall apportion the cost of the jury among the several cases and tax it in accordance with justice.

§ 11-9-147

The justice of the peace may fine any person summoned as a juror failing to attend in any sum not exceeding ten dollars; and if such person, when summoned to show cause why the fine should not be made final, shall not appear and show cause, execution shall issue for the fine and costs.

Chapter 11 Venue of Actions

§ 11-11-1

All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

§ 11-11-3

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.

(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

(2) In any civil action where more than one (1) plaintiff is joined, each plaintiff shall independently establish proper venue; it is not sufficient that venue is proper for any other plaintiff joined in the civil action.

(3) Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

(4)(a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(i) Relative ease of access to sources of proof;

(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;

(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his remedy;

(v) Administrative difficulties for the forum courts;

(vi) Existence of local interests in deciding the case at home; and

(vii) The traditional deference given to a plaintiff's choice of forum.

(b) A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

§ 11-11-9

Executors, administrators or guardians, appointed in this state and residing out of it, may be sued in the county of their appointment and may be made parties to such suit so as to authorize judgment against them by publication of summons made as provided for in the case of absent and nonresident defendants.

Actions against resident executors, administrators or guardians may be brought in the county or judicial district of their appointment.

§ 11-11-15

The venue of actions against the Mississippi State Board of Health wherein said board is a defendant, or the State Board of Medical Licensure wherein said board is a defendant, shall be in Hinds County.

§ 11-11-17

Where an action is brought in any justice court of this state, of which the court in which it is brought has jurisdiction of the subject matter, but lacks venue jurisdiction, such action shall not be dismissed because of such lack of proper venue, but on objection on the part of the defendant shall, by the court, be transferred, together with all prepaid costs remaining after the court in which the action was originally brought has deducted the costs incurred in that court, to the venue to which it belongs.

§ 11-11-19

If the judge of the court be a party to or interested in any suit about to be commenced, the suit may be instituted in an adjacent district, and the process may be issued to and served in any county where the defendant may be found; or the suit may be brought as if the judge were not a party to or interested in it.

§ 11-11-51

When either party to any civil action in the circuit court shall desire to change the venue, he shall present to the court, or the judge of the district, a petition setting forth under oath that he has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. On reasonable notice in writing to the adverse party of the time and place of making the application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear the parties and examine the evidence which either may adduce, and may award a change of venue to some convenient county where an impartial trial may be had, and, if practicable, in which the circuit court may next be held. If made in vacation, the order shall be indorsed on the petition and directed to the clerk, who shall file the same with the papers in the suit.

§ 11-11-53

(1) When an order for a change of venue shall be made, the clerk shall make out a descriptive list of all the papers in the cause and a certified copy of all orders and judgments made therein, with their dates, and a bill of the costs that have accrued. The said clerk shall carefully and safely put all the papers, with a copy of the descriptive list, and a copy of the orders and judgments, and the bill of costs, into a package, to be well covered and sealed up, and directed to the clerk of the court in which the suit is ordered removed. The clerk shall, if not otherwise directed by the judge, take the receipt of the party obtaining the change of venue for the papers contained on said list, and deliver the package to said party, to be carried to the clerk of the court to whom it may be directed, or it may be sent by mail, postage paid, or by express, the clerk taking proper receipt therefor.

(2) In Harrison County, a county having two judicial districts, in all civil proceedings, or matters, where the venue thereof shall be changed, or the trial transferred or removed from one district to the other, the original papers, together with certified copies of all motions, orders and decrees made and entered in such suits, proceedings, matters and cases, shall be transmitted, transferred and filed by the proper clerk to and in his office at the proper place to which such change of venue or transfer shall be made.

§ 11-11-55

The clerk to whom the papers may be transmitted shall open the package and compare the papers with the descriptive list, and shall give the person delivering the same, if demanded, a receipt therefor. He shall then enter the cause on his docket as if it had been commenced in the court of which he is clerk, and issue subpoena for witnesses as in other cases.

§ 11-11-57

A civil suit shall not be removed more than once, or in any other manner than as prescribed, and in no case where it shall appear that there has been unnecessary delay or negligence in making the application.

§ 11-11-59

The provisions for a change of venue shall be applied in those counties where there are two places of holding circuit courts in the same manner as if each district were a separate county.

Chapter 13 Injunctions

§ 11-13-1

An injunction shall not be granted unless the judge or chancellor shall be satisfied of the complainant's equity and of the truth of the allegations of the bill, by oath or other means.

§ 11-13-3

An injunction to stay proceedings at law shall not be issued until after the party obtaining the injunction shall give security in such sum as the court deems proper for the payment of costs, damages and reasonable attorney's fees as may be incurred or suffered by any party who is found to be wrongfully enjoined.

§ 11-13-5

Where the injunction shall not be for the stay of proceedings in an action at law for the recovery of money, or upon a judgment requiring the payment of money, the party applying for the injunction shall, before the issuance of the same, enter into bond in like manner as provided for in Section 11-13-3, in a sufficient penalty, to be fixed by the judge granting the same, conditioned for the payment of all damages and costs which may be awarded against him, or which the opposite party may suffer or sustain by reason of the suing out of said injunction, in case the same shall be dissolved.

§ 11-13-7

If the injunction be to stay a sale under execution of certain designated property, real or personal, or any proceeding at law as to certain specified things, and not to restrain proceedings at law generally, bond may be given as provided in Section 11-13-5; but if the injunction shall be obtained on the ground of some objection to the judgment or execution, or the demand of the party enjoined to sustain his claim, and shall not be confined to a contest of his right to subject to his demand particular property by his proceeding, bond shall be given as prescribed in Section 11-13-3.

§ 11-13-9

Neither the state, nor any county, nor any municipality, nor any state officer of the state suing out an injunction in his official character, shall be required to give bond to obtain an injunction.

§ 11-13-11

The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.

§ 11-13-13

An injunction shall not be granted to stay the collection of state, county, city, town or village taxes unless upon condition that, before its issuance, the party obtaining it shall give security to the state in such sum as the court deems proper for the payment of damages, costs, and reasonable attorney's fees as may be incurred or suffered by the state, in case the injunction shall be dissolved.

§ 11-13-15

All causes in which it is sought to enjoin or delay the collection of any taxes imposed by competent authority shall be preference cases, and tried at the earliest moment compatible with the ends of justice. Upon a dissolution of any such injunction, the chancellor or court ordering it dissolved shall enter a judgment against the person suing out the same and the sureties on his injunction bond, for the amount of the taxes so enjoined and ten percent (10%) thereon, and all costs of suit. Such judgment shall be enforced by execution for the use of the state or county, or both, or of the city, town or village, as the case may require. The said judgment shall be a lien from its date upon the property of the persons against whom it is rendered; and all the property on which the taxes enjoined were assessed shall remain bound by the lien for taxes declared by law, notwithstanding such injunction; and such property may be sold under the execution upon such judgment.

§ 11-13-17

The provisions of Section 11-13-15 shall apply to a partial dissolution of an injunction of the collection of taxes and to an injunction of the sale of any property for taxes. In all cases of the injunction of the collection of taxes, or of the sale of any property for taxes, the court, or chancellor in vacation, in dissolving in part or in whole, or in modifying an injunction, shall have full power to make such judgment as may be necessary to enforce the right of the state, county, city, town, village, or other competent authority entitled to the taxes involved in such suit, and may direct a sale of any property liable to such taxes, and involved in such suit.

§ 11-13-19

When an injunction shall be granted to stay the sale of personal property, levied on by virtue of an execution, the chancellor may order the property to be restored to the plaintiff, on his giving bond to the sheriff, in such amount and with sufficient sureties as the judge deems proper, payable to the plaintiff in the execution, and conditioned for the redelivery of the property to the sheriff in case the injunction shall be dissolved. Such bond shall be returned by the sheriff with the execution, and shall have the force and effect of a judgment. Liability thereupon may be enforced by the procedure provided for in the Mississippi Rules of Civil Procedure. In case the property shall not be redelivered to the sheriff within fifteen (15) days after the dissolution of the injunction, the clerk of the court to which the bond was returned shall issue execution thereon for the amount of the assessed value of said property and all costs. But in such case, the lien on the property created by the judgment and the execution and levy, shall remain in force; and the sheriff, on a writ of venditioni exponas, or other order of sale, may seize the property so levied on wherever the same may be found.

§ 11-13-21

When an injunction shall be granted to stay a sale of personal property seized under a deed of trust or mortgage with power of sale, or in any case in which the sale of such property may be enjoined, the judge may order the property to be restored to the plaintiff on his giving bond to the sheriff in such amount and with sufficient sureties as the judge deems proper, payable to the person by whom such property is to be surrendered and conditioned for the return of the property to the person surrendering it, if the injunction shall be dissolved. Such bond shall be returned by the sheriff with the execution and shall have the force and effect of a judgment. Liability thereupon may be enforced by the procedure provided for in the Mississippi Rules of Civil Procedure. If not discharged by the delivery, within fifteen (15) days after the dissolution of the injunction, of the property to the person in whose possession it was before said order for the restoration to the plaintiff, execution shall be issued on such bond by the clerk for the value of said property.

§ 11-13-31

Either party may, on the hearing of a motion to dissolve an injunction on bill and answer, read in evidence affidavits taken by him, on two days' notice to the opposite party of the time and place of taking such affidavits, and may also introduce oral or documentary evidence, or both, at the hearing.

§ 11-13-33

A bond to enjoin proceedings at law on a judgment for money, upon the dissolution of the injunction, in whole or in part, shall have the force and effect of a judgment against the obligors; and liability of such sureties may be enforced under the procedure provided for in the Mississippi Rules of Civil Procedure.

§ 11-13-35

When an injunction, obtained to stay proceedings on a judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs; and the clerk of the chancery court shall certify such dissolution to the clerk of the court in which the judgment was rendered, who shall thereupon issue execution for the damages, as well as for the original debt and costs. Damages at the same rate shall be allowed upon the dissolution of injunctions to stay sales under deeds of trust, or mortgages with power of sale; and such damages may be added to the debt, and collected by the sale of the property, or execution may issue from the chancery court for the same, together with the costs of suit, unless the value of the property, the sale of which was restrained, be less than the amount of the debt, in which case the damages shall be computed on the value of the property, to be ascertained and determined by the chancellor. In all cases upon the dissolution of an injunction, the damages may be ascertained by the court or chancellor, or upon reference to a master, and proof, if necessary, and decree therefor be made, and execution be issued thereon.

§ 11-13-37

Where the party claiming damages shall desire, upon the dissolution of an injunction, to have the same ascertained and decreed by the chancellor or the chancery court, he shall suggest in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages; and the chancellor or court shall hear evidence, if necessary, and assess the damages, and decree the same to the party entitled thereto, for which execution may be issued, as in other cases, against the obligors in the bond given for the injunction. And if the chancellor, instead of hearing evidence as to said damages--which may be by witnesses examined before him in vacation or in term time, or by deposition, according to the circumstances--shall see proper, he may make a reference to a master to take testimony and report in such matter. But nothing herein contained shall prevent the party entitled from maintaining a suit on the injunction bond, if his damages shall not be assessed as herein provided for.

§ 11-13-39

When, on motion, an injunction shall be wholly dissolved, the bill of complaint shall be dismissed of course with costs, unless sufficient cause be shown against its dismissal at the next succeeding term of the court.

§ 11-13-41

(1) A victim of stalking, as defined in Section 97-3-107, or sexual assault, as defined in Section 97-3-65 or 97-3-95, who files an action seeking injunctive relief preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to the victim against the perpetrator of that offense, shall not be assessed any fees related to the filing of such request, the issuance of any process of court or the issuance of any order providing such protection.

(2) The court, upon issuing any such relief, shall assess costs of court to the perpetrator of the offense. In the event the court determines the request is frivolous, the court shall assess the costs of court to the petitioner.

Chapter 15 Arbitration and Award

§ 11-15-1

All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission. In such case, however, should the parties agree upon a court without jurisdiction of the subject matters of the award, the judgment shall be rendered by the court having jurisdiction in the county of the residence of the party, or some one of them, against whom the award shall be made.

§ 11-15-3

A person shall not act as an arbitrator where he is interested in the subject matter in dispute, nor where he is related, by consanguinity or affinity, to any of the parties to the arbitration.

§ 11-15-5

The arbitrators selected by agreement of the parties shall appoint a time and place for the hearing, and notify the parties thereof, and shall adjourn the hearing from time to time, as may be necessary, and on the application of either party, and for good cause may postpone the hearing to a time not extending beyond the day fixed in the submission, if a day be fixed, for rendering the award.

§ 11-15-7

The notice which the arbitrators shall give to the parties of the time and place of the hearing of the controversy shall be in writing, and may be in the following form, viz:

“To __________ and __________ and __________ [naming all of the parties]

“You are notified that the undersigned arbitrators, agreed upon by you to determine the controversy mentioned in your articles of submission, of date the ___ day of __________ A.D. __________, have fixed upon and will hear and consider your said controversy on the ___ day of __________ A.D. __________, at __________

“ “ “ “Arbitrators.”

Such notice shall be served by delivering to each of the parties a copy thereof at least one whole day before the hearing, and shall be given to the parties by one of the arbitrators, who shall indorse on said notice that he has served the same by giving the party or parties so served a true copy thereof; but, if the parties appear, the want of notice shall not affect the proceedings.

§ 11-15-9

Before proceeding to hear any testimony in relation to the matter, the arbitrators shall be sworn, by some officer authorized to administer an oath, to faithfully and impartially hear and determine the matters submitted to them, according to the evidence and the manifest justice and equity of the case, to the best of their judgment, without favor or affection.

§ 11-15-11

All arbitrators must meet together and hear all of the allegations and evidence of the parties pertinent or material to the cause; but the parties may mutually waive, in writing, the appearance of all of the arbitrators named in the articles of submission and consent for those present to proceed, or they may, in like manner, substitute other persons for the absent one. An award made, and every other act done, by a majority of the arbitrators shall be valid, unless the concurrence of all or a certain number of the arbitrators to the award or acts be expressly required in the submission.

§ 11-15-13

All witnesses before arbitrators shall be sworn as if before a court, and the parties shall have the benefit of legal process to compel the attendance of witnesses, which may be issued by the clerk of any court or a justice of the peace, and shall require the witness to attend before the arbitrators on a day and at a place certain to be named in the subpoena.

§ 11-15-15

Process returnable to the arbitrators may be served as provided for in the Mississippi Rules of Civil Procedure.

§ 11-15-17

If any person duly subpoenaed to appear before arbitrators and testify, shall fail to do so, he shall be guilty of contempt of the court from which, or by whose clerk, the process issued, and upon complaint thereto of the party injured, the court or justice may punish the person for such contempt as in other like cases.

§ 11-15-19

To entitle an award to be enforced according to the provisions of this chapter, it must be made in writing, and be signed by the arbitrators making the same and who concur therein. The arbitrators shall attach to the award the articles of submission, the notice served on the parties, with indorsements of service, and, if the parties appear, that fact should be noted in the award itself; and they shall give a duplicate of the whole to each of the parties to the controversy, and the duplicates shall each be treated as originals.

§ 11-15-21

Upon presentation of the articles of submission and the award to the court designated in the submission or the court having jurisdiction of the subject matter of the award, the court shall, upon motion, confirm the award, unless the same be vacated or modified, or a decision thereon be postponed, as hereinafter provided. An award shall not be confirmed unless notice in writing of such motion shall have been served on the adverse party at least five days before the hearing, to be served as other process; but such motion shall not be made after the expiration of one year from the making and publication of the award.

§ 11-15-23

Any party complaining of an award may move the court to vacate the same upon any of the following grounds:

(a) That such award was procured by corruption, fraud, or undue means;

(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;

(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;

(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

§ 11-15-25

Any party to the submission may also move the court to modify or correct the award in the following cases:

(a) Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property referred to in such award;

(b) Where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted;

(c) Where the award shall be imperfect in some matter of form, not affecting the merits of the controversy, and when, if it had been a verdict of a jury rendered in such court, the defect could have been amended or disregarded by the court.

§ 11-15-27

An application to vacate or modify an award shall be made to the court at the term next after the making and publication of the award, upon at least five days' notice, in writing, being given to the adverse party, if there be time for that purpose; and if there be not time, such court, or the judge thereof, may, upon good cause shown, order a stay of proceedings upon the award, either absolutely or upon such terms as shall appear just, until the next succeeding term of court.

§ 11-15-29

On application as provided for in Section 11-15-27, the court may vacate the award in any of the cases specified in Section 11-15-23, and if the time in which the award shall have been required to be made by the articles of submission has not expired, may, in its discretion, direct a new hearing by the arbitrators; and, in the cases specified in Section 11-15-25, the court may modify and correct the award so as to effect the intent thereof, and to promote justice between the parties.

§ 11-15-31

Upon such award being confirmed or modified, the court shall render such judgment therein in favor of the party entitled to the same, as would be rendered in such case in the circuit or chancery court.

§ 11-15-33

The costs of the proceedings, after an application to the court for its action upon the award, and the fees allowed by law to the arbitrators, where no provision for payment is made thereof in the award, shall be taxed and collected as in other suits.

§ 11-15-35

In all suits or actions in any court, it shall be lawful for the plaintiff and defendant to consent to a rule of court referring all matters in controversy between them in such suit or action to the arbitrament of any person or persons who may be mutually chosen by them; and the award of such arbitrators being made and returned according to the rule of submission of the parties, approved by the court and entered of record, shall have the same effect as the final judgment or decree of the court into which such award may be returned, and execution may issue thereon accordingly; and like proceedings may be had, where applicable, as is provided in other cases.

§ 11-15-37

This chapter shall not be construed to take away from the courts of equity their power over awards, nor to make invalid any award good at common law. It shall be liberally construed for the encouragement of the settlement of disputes and the prevention of litigation.

§ 11-15-101

(1)Sections 11-15-101 through 11-15-143 apply only to agreements and provisions for arbitration made subsequent to July 1, 1981.

(2)Sections 11-15-101 through 11-15-143 shall apply to any agreement for the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof, and to any purchase by, or supply to, any contractor or subcontractor qualified to do business in this state of any materials to be used in the planning, design, engineering, construction, erection, repair or alteration of any building, structure, fixture, road, highway, utility or any part thereof; provided, however, that nothing contained in Sections 11-15-101 through 11-15-143 shall be construed as amending or otherwise affecting the provisions of Sections 65-2-1 through 65-2-17, Section 65-1-89, Section 65-1-91, and Section 77-9-387, Mississippi Code of 1972.

(3)Sections 11-15-101 through 11-15-143 shall also apply to any agreement for architectural, engineering, surveying, planning and related professional services performed in connection with any of the agreements enumerated in subsection (2) of this section.

(4)Sections 11-15-101 through 11-15-143 shall have no effect on the establishment or enforcement of any lien provided for in Title 85, Chapter 7, Mississippi Code of 1972.

§ 11-15-103

Two (2) or more parties referred to in Section 11-15-101 may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable and irrevocable without regard to the justiciable character of the controversy. Provided, however, that in the event either party to such an agreement initiates litigation against the other with respect to such agreement, such arbitration provision shall be deemed waived unless asserted as a defense on or before the responding party is required to answer to such litigation. Whenever a provision for binding arbitration is included in the contract documents of a public contract, any bidder may refuse to accept such clause and shall so state on the bid document before entering into such public contract, and such refusal shall not be cause to reject any bid on, or refuse the award of such public contract.

§ 11-15-105

(1) Any party to an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 claiming the neglect or refusal of another party thereto to comply therewith may make application to the court as described in Sections 11-15-133 and 11-15-135 for an order directing the parties to proceed with arbitration in accordance with the terms of such agreement or provision. If the court finds that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine such issue and shall, consistent with such determination, grant or deny the application.

(2) Any action or proceeding involving an issue subject to arbitration under Sections 11-15-101 through 11-15-143 shall be stayed if an order for arbitration or an application therefor has been made under this section. If such issue is severable, the stay may be with respect to such issue only. An order for arbitration shall include the stay.

(3) On application, the court may stay an arbitration proceeding commenced or threatened if it shall find no agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and shall, consistent with such determination, grant or deny the application.

(4) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

§ 11-15-107

If an agreement or provision for arbitration provides a method for the initiation of arbitration, such method shall be followed. In the absence thereof, the party desiring to initiate the arbitration shall, within the time specified by the contract, if any, file with the other party a notice of an intention to arbitrate which notice shall contain a statement setting forth the nature of the dispute, the amount involved, and the remedy sought. A party upon whom the demand for arbitration is made may file an answering statement to the other party within twenty (20) days after receipt of the initial demand. If no answer is filed within the stated time, it will be treated as a denial of the claim. Failure to file an answer shall not operate to delay the arbitration.

§ 11-15-109

If an agreement or provision for arbitration provides a method for the appointment of arbitrators this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator who has been appointed fails or is unable to act and his successor has not been duly appointed, the court, on application of a party to such agreement or provision, shall appoint one or more arbitrators. An arbitrator so appointed shall have the same powers as if he had been named or provided for in the agreement or provision.

§ 11-15-111

The powers of the arbitrators may be exercised by a majority of their number unless otherwise provided in the agreement or provision for arbitration.

§ 11-15-113

Unless otherwise provided by the agreement or provision for arbitration:

(a) The arbitrators so appointed shall set a time and place for the hearing and cause notification to the parties to be served personally in any manner provided for by law or by registered or certified mail not less than twenty (20) days before the hearing. Appearance at the hearing waives a party's right to such notice. The arbitrators may adjourn their hearing from time to time upon their own motion and shall do so upon the request of any party to the arbitration for good cause shown; provided that no adjournment or postponement of the hearing shall extend beyond the date fixed in the agreement or provision for making the award unless the parties consent to a later date.

(b) A hearing shall be opened by the recording of the place, time and date of the hearing, the presence of the arbitrator and parties, and counsel, if any, and by the receipt by the arbitrator of the statement of the claim and answer, if any.

The arbitrator may, at the beginning of the hearing, ask for a statement clarifying the issues involved.

The complaining party shall then present its claim, proofs and witnesses, who shall submit to questions or other examination. The defending party shall then present its defenses, proofs and witnesses, who shall submit to questions or other examination. The arbitrator may vary this procedure but shall afford full and equal opportunity to the parties for the presentation of any material or relevant proofs.

Any party shall be entitled to cross-examine the witnesses of any other party appearing at the hearing. Exhibits, when offered by either party, may be received in evidence by the arbitrator.

The names and addresses of all witnesses and exhibits in order received shall be made a part of the record.

(c) The parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. The arbitrators shall be the judge of the admissibility of the evidence offered and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent in default or has waived his or her right to be present.

(d) The hearing shall be conducted by all of the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.

§ 11-15-115

A party has the right to be represented by an attorney at any proceeding or hearing under Sections 11-15-101 through 11-15-143. A waiver thereof prior to the proceeding or hearing shall be ineffective.

§ 11-15-117

(1) The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence and shall have the power to administer oaths. Subpoenas so issued shall be served and, upon application to the court by a party to the arbitration or the arbitrators, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.

(2) On application of a party to the arbitration, the arbitrators, in the manner and upon terms designated by the arbitrators, may permit a deposition to be taken of any person.

(3) Any prehearing discovery other than that referred to above shall only be permissible if agreed to by the parties involved in the arbitration.

(4) All provisions of law compelling a person under subpoena to testify are applicable.

(5) Fees for attendance as a witness shall be the same as for a witness in circuit court.

§ 11-15-119

(1) The arbitrators may grant any remedy or relief which is just, equitable and consistent with the agreement of the parties which is the subject of the arbitration.

(2) The award shall be in writing and shall be signed by the arbitrator joining in the award. The arbitrators shall deliver a copy to each party to the arbitration either personally or by registered or certified mail, or as provided in the agreement or provision.

(3) An award shall be made within the time fixed therefor by the agreement or provision for arbitration or, if not so fixed, within such time as the court may order on application of a party to the arbitration. The parties may, by written agreement, extend the time before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.

(4) An arbitrator may award attorney's fees and costs to a prevailing party.

§ 11-15-121

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators' reasonable expenses and fees, together with other reasonable expenses, not including counsel fees, incurred in the conduct of the arbitration shall be paid as provided in the award. Such compensation shall be taxed and collected as costs in the suit.

§ 11-15-123

Upon request by a party to the arbitration, mailed by registered or certified mail to the arbitrators and opposing party(s) within twenty (20) days of the receipt of the award, to modify or correct the award on any or all of the grounds enumerated in Section 11-15-135, the arbitrators shall, within ten (10) days, modify, correct or affirm the award as they find proper.

§ 11-15-125

Upon application by a party to the arbitration filed within ninety (90) days of the receipt of the later of a copy of the award issued pursuant to Section 11-15-119, or a modified or corrected award as provided by Section 11-15-123 the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating, modifying or correcting the award, in which case the court shall proceed as provided in Sections 11-15-133 and 11-15-135.

§ 11-15-127

Except as otherwise provided, an application to the court under Sections 11-15-101 through 11-15-143 shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.

§ 11-15-129

The term “court” as used in Sections 11-15-101 through 11-15-143 means the circuit court of the county as provided in Section 11-15-131. The making of an agreement or provision for arbitration subject to Sections 11-15-101 through 11-15-143 and providing for arbitration in this state shall, whether made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under Sections 11-15-101 through 11-15-143 and to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify or correct an award rendered thereunder for such cause and in the manner provided in Sections 11-15-101 through 11-15-143.

§ 11-15-131

An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise, the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the court of any county. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.

§ 11-15-133

(1) Upon application of a party, the court shall vacate an award where:

(a) The award was procured by corruption, fraud or other undue means;

(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.

The fact that the relief was such that it could not or would not be granted by a court of law or equity is no ground for vacating or refusing to confirm the award.

(2) An application under this section shall be made within ninety (90) days after receipt of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known.

(3) In vacating the award on such grounds, the court may order a rehearing before new arbitrators chosen as provided in the agreement or provision for arbitration or, in the absence thereof, by the court in accordance with Section 11-15-107. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order.

(4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

§ 11-15-135

(1) Upon application made by a party to the arbitration within ninety (90) days after receipt of a copy of the award, the court shall modify or correct the award where:

(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.

(2) If such application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected; otherwise, the court shall confirm the award as made.

(3) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.

§ 11-15-137

Upon the granting of an order confirming, modifying or correcting an award, a judgment or decree shall be entered and be enforced as any other judgment or decree. Costs may be awarded by the court.

§ 11-15-139

(1) On entry of judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:

(a) The agreement or provision for arbitration and each written extension of the time within which to make the award;

(b) The award;

(c) A copy of the order confirming, modifying or correcting the award; and

(d) A copy of the judgment or decree.

(2) The judgment or decree shall be docketed as if rendered in a civil action.

§ 11-15-141

(1) An appeal from the court may be taken from:

(a) An order denying the application to compel arbitration made under Section 11-15-105;

(b) An order granting an application to stay arbitration made under Section 11-15-105;

(c) An order confirming or denying confirmation of an award;

(d) An order modifying or correcting an award;

(e) An order vacating an award without directing a rehearing; or

(f) A judgment or decree entered pursuant to the provisions of Sections 11-15-101 through 11-15-143.

(2) The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.

§ 11-15-143

Sections 11-15-1, 11-15-3, 11-15-5, 11-15-7, 11-15-9, 11-15-11, 11-15-13, 11-15-15, 11-15-17, 11-15-19, 11-15-21, 11-15-23, 11-15-25, 11-15-27, 11-15-29, 11-15-31, 11-15-33, 11-15-35 and 11-15-37, Mississippi Code of 1972, which provide for the submission for determination of disputed matter to arbitrators selected by law or agreement, shall not be applicable to those agreements enumerated in Section 11-15-101.

Chapter 17 Suits to Confirm Title or Interest and to Remove Clouds on Title 11-69-1

§ 11-17-1

Any person holding or claiming under a tax title lands heretofore or hereafter sold for taxes, when the period of redemption has expired, may proceed by sworn complaint in the chancery court to have such title confirmed and quieted, and shall set forth in his complaint his claim under the tax sale, and the names and places of residence of all persons interested in the land, so far as known to plaintiff, or as he can ascertain by diligent inquiry. Where the names of persons in interest or their places of residence are unknown and have not been ascertained by diligent inquiry, the complaint shall so state. Where the name and places of residence of persons in interest are given they shall be made parties defendant. Where the complaint shall show that the persons interested are unknown to plaintiff and that he has made diligent inquiry for their names and could not obtain them, all persons interested may be made defendants by a notice addressed: “To all persons having or claiming any interest in the following described land, sold for taxes on (inserting date of sale), viz: (Describing land as described in the tax collector's conveyance).” The notice shall state the nature of the suit and it shall be published in accordance with the requirements of the Mississippi Rules of Civil Procedure. It shall be lawful in all cases to set forth in the complaint the names of all persons interested, as far as ascertained, and make them parties and also to join and make defendants “all persons having or claiming any legal or equitable interest in” the lands described in the complaint. Such suits shall be proceeded with as other cases; and if the complaints be taken for confessed, or if it appear that plaintiff is entitled to a judgment, it shall be rendered, confirming the tax title against all persons claiming to hold the land by title existing at the time of the sale for taxes. Such judgment shall vest in the plaintiff, without any conveyance by a master or commissioner, a good and sufficient title to said land; and such judgment shall, in all courts of this state, be held as conclusive evidence that the title to said land was vested in the plaintiff, as against all persons claiming the same under the title existing prior to the sale for taxes.

§ 11-17-3

Any patentee, or any person, firm or corporation, claiming title or other interest in land under or through any patentee by virtue of any patent issued by the state for lands forfeited to the state for nonpayment of taxes, whether such claimant be in possession or not, or be threatened to be disturbed in his possession or not, may proceed as party plaintiff against the state, as a party defendant, by sworn complaint in the chancery court of the county where the land, or some part thereof, is situated, to have such title or interest confirmed and quieted. No deraignment of plaintiff's title in such cases shall be required.

§ 11-17-5

The attorney general, in proper cases after investigation, shall file an answer in all such cases setting up any defense on the part of the state of Mississippi, and all of the pleadings in such cases shall be the same as in other cases in chancery. The said cause shall be heard and determined as other cases in chancery.

§ 11-17-7

The court is hereby granted large discretion and far reaching powers in the matter of establishing and fixing the validity of land patents issued by the state and title conveyed thereunder, and the sound discretion of the court in deciding all such cases shall be the controlling factor in settling the issues where only state interests are involved. No decree pro confesso shall be taken against the state, but on failure of the attorney general to answer within the time required by law, the cause shall be heard on the bill and proof thereon.

§ 11-17-9

Upon the hearing of such cases, it shall be the duty of the chancery court to enter a decree validating and perfecting the title of said land from the state of Mississippi, unless it shall appear to the court and the court shall find as a fact that the state has not acquired title to said land by virtue of said tax sale, or that the title to the said land involved in the suit was divested out of the state of Mississippi without payment of purchase price or by reason of actual fraud on the part of the patentee, or his representatives. In such cases of fraud and failure to pay purchase price, the chancery court shall enter a decree forever annulling and cancelling the said patent; but no patent heretofore issued shall be cancelled in such proceeding because of loss of the application papers to purchase said land, or because of errors or omissions or incorrect statements in said application, or other papers in connection with the sale of said land, such matters not constituting fraud as above defined.

§ 11-17-11

Any of the parties to the suit may appeal as in other proceedings in chancery, provided any interlocutory appeal is taken within ten days after the rendition of the decree from which the appeal is desired, and provided that any final appeal is taken within sixty days from the date of the rendition of the final decree.

§ 11-17-13

Any land patent and title perfected by a decree in a suit under Sections 11-17-3 through 11-17-17 shall forever estop and preclude the state and other parties from thereafter questioning the validity of the patent involved in such proceeding.

§ 11-17-15

It is hereby made the duty of the district attorneys and county attorneys in their respective jurisdictions to fully cooperate with the attorney general in the investigation and trial of all cases filed under Sections 11-17-3 through 11-17-17; and, at the request of the attorney general, such officers shall investigate the facts involved and file such answers and perform such other reasonable services in connection therewith as the attorney general may request.

§ 11-17-17

Sections 11-17-3 through 11-17-17 shall be liberally construed to validate and quiet title to lands heretofore passing under patent from the state and shall in no way be construed as repealing or limiting any other statutes now existing in aid of such titles under patents from the state.

§ 11-17-19

Any person, firm or corporation which claims title to or a leasehold or other interest in any real property, other than sixteenth section school lands or lands granted in lieu thereof, under or by virtue of a sale, conveyance or lease of such property by any county, municipality, supervisor's district, or other political subdivision of the State of Mississippi, acting either separately or jointly, may proceed by sworn complaint in the chancery court of the county in which such real property, or some part thereof, is located, to have the title to or leasehold or other interest in such real property quieted and confirmed. Such action may be brought whether or not such person, firm or corporation be in possession of such real property, or whether he or it be threatened to be disturbed in such possession or not. In such complaint, the person, firm or corporation claiming such title or leasehold or other interest shall be the party plaintiff and there shall be made defendants thereto the county, municipality or other political subdivision which sold, conveyed or leased said property, the Attorney General of the state and the district attorney of the county in which said suit is filed. In any such suit, it shall not be necessary that the plaintiff therein deraign his title to said property.

§ 11-17-21

All proceedings in said suit shall be governed by the Mississippi Rules of Civil Procedure. However, no default judgment shall be entered against the defendants unless the court determines the truth of the averments after a hearing pursuant to the Mississippi Rules of Civil Procedure.

§ 11-17-23

In all such proceedings the court shall find whether the sale, conveyance or lease of such real property was lawful and valid. Upon the hearing of such case, the chancery court shall enter a decree validating and confirming the complainant's title to or leasehold or other interest in such real property as against the defendants in said suit, unless it shall appear to the court and the court shall find that the title thereto or leasehold or other interest therein was not lawfully and validly acquired by virtue of the sale, conveyance or lease under which such complainant claims, in which latter case the chancery court shall enter a decree annulling and cancelling such sale, conveyance or lease, or such other decree as the court may find to be lawful, just and equitable in such case. When any sale, conveyance or lease of any such property shall be confirmed and validated under the provisions of Sections 11-17-19 through 11-17-27 by decree of the chancery court, such decree shall forever estop and preclude the defendants and all other parties from thereafter questioning the validity of the sale, conveyance or lease involved in such proceedings.

§ 11-17-25

Any of the parties to a confirmation suit filed under the provisions of Sections 11-17-19 through 11-17-27 may appeal from the decree of the chancery court in the manner and within the time provided by law, and such appeals shall be heard as are other cases of appeals from the decrees of the chancery court.

§ 11-17-27

Sections 11-17-19 through 11-17-27 shall be applicable to all sales, conveyances and leases of real property, other than sixteenth section school lands or lands granted in lieu thereof, made by any county, municipality, supervisor's district or other political subdivision of the State of Mississippi, acting either jointly or separately, to any person, firm or corporation, including, but not being limited to, sales, conveyances and leases made under the authority of Sections 57-1-1 through 57-1-51, any other statute of the State of Mississippi, whether same be general, special or local and private, and sales, conveyances and leases made under the general authority of counties, municipalities, and other political subdivisions, whether same were authorized by a specific statute or not.

§ 11-17-29

The owner in possession of any land, or the owner thereof who may be out of possession, if there be no adverse occupancy thereof, may file a bill in the chancery court to have his title confirmed and quieted. The law for notice, process, proceedings, and practice, as provided for confirming and quieting tax titles shall apply, no matter by what tenure the complainant may hold. Unknown and nonresident parties may be made defendants as they are made defendants to proceedings to confirm tax titles. If on the final hearing of any such suit, the court shall be satisfied that the complainant is the real owner of the land, it shall so adjudge, and its decree shall be conclusive evidence of title as determined from the date of the decree as against all parties defendant.

§ 11-17-31

When a person not the rightful owner of any real estate, shall have any conveyance or other evidence of title thereto, or shall assert any claim, or pretend to have any right of title thereto, which may cast doubt, or suspicion on the title of the real owner, such real owner may file a bill in the chancery court to have such conveyance or other evidence or claim of title cancelled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession or not, or be threatened to be disturbed in his possession or not, and whether the defendant be a resident of this state or not. Any person having the equitable title to land may, in like cases, file a bill to divest the legal title out of the person in whom the same may be vested, and to vest the same in the equitable owner. Any person holding or claiming under a tax title lands heretofore or hereafter sold for taxes may proceed hereunder in like manner and may include, as a defendant, any political subdivision of the state, having or asserting any evidence or claim of title adverse to such tax title.

§ 11-17-33

(1) To encourage the exploration and development of the state's mineral resources, upon application, accompanied by sworn affidavit, of one or more persons, firms or corporations claiming or owning any mineral interest in a tract of land and upon which mineral production is desired, the chancery court of the county in which the land, or any part thereof, is located shall have the authority to appoint the chancery clerk as receiver of any mineral interest claimed or owned by any person, or persons, whose whereabouts or identity is unknown, if the court is satisfied after hearing and proof that the said person, or persons, could not be found after diligent search and inquiry and that petitioners will suffer loss, damage or injury unless such receiver is appointed.

(2) Such receiver shall have power and authority, under court order, to execute and deliver to a lessee, determined by the court, a mineral lease on any such outstanding mineral interest, upon such terms and conditions as may be prescribed by the court; provided, however, that the court affirmatively find that the lease taken as a whole shall be at least as favorable to the absent person as other leases in the same tract of land and shall be in the best interest of all parties. It shall be conclusively presumed in every court in this state that the terms and conditions of said lease are reasonable, fair and represent the fair market value of the interests leased. The moneys, if any, paid to such receiver for execution, delay rentals, royalties or any other proceeds of such lease shall be paid immediately upon accrual to the receiver and shall be impounded by said receiver for the use and benefit of such person. The receiver shall hold, preserve and invest any such money so received in the same manner as other moneys held by the chancery clerk and on order of the court shall pay any money so held, with any interest accrued less costs of the receivership, to any person holding a valid claim thereto when said claim is asserted within ten (10) years of the date of the decree establishing the receivership. The official bond of the chancery clerk shall cover any money paid him as such receiver and the chancellor may prescribe such additional bond as he may think proper.

(3) No receiver shall be appointed under the provisions of this section unless all interested parties who are not parties to the petition shall be made defendants and all such defendants shall have been served with process of the court provided by law for cases in chancery court. The summons by publication shall be substantially in the following form:

“THE STATE OF MISSISSIPPI

__________(inserting names of defendants)

You are summoned to appear before the Chancery Court of the County of __________ in said state, on the ___ Monday of __________, A.D. __________, to defend the suit of __________ (et al.) praying the appointment of a receiver of an undivided mineral interest claimed to be owned by you in and under __________(here describe the land) wherein you are a defendant. This the ___ day of __________, A.D.

_____________________________ Clerk”

(4) The costs of the action for appointment of the receiver shall be taxed against the petitioners if they fail to prove their case.

(5) The receivership, once established, shall continue, unless dissolved by the court for good cause, for a period of at least ten (10) years.

(6) This section shall not alter or change any laws now in effect relating to suits for the removal of clouds upon title or the appointment of receivers under any other law, but is cumulative thereof.

(7) The term “tract of land” as used herein shall not be limited to property wherein petitioner owns an undivided interest; but may include any geographic boundary upon which mineral exploration and/or production may be conducted even though the tract may include property in which petitioner has no property interest or any other geographic boundary the court, in its discretion, may deem appropriate.

§ 11-17-34

Unless otherwise released by the court, the receiver appointed in Section 11-17-33 shall hold all net proceeds paid in connection with such lease for a period of ten (10) years from the date of the decree establishing the receivership. If, at the end of that period of ten (10) years, no valid claim has been made for such moneys and said mineral interests, all moneys and mineral interests held by the receiver shall immediately escheat to the state in the same manner as if the absent person had died intestate leaving no heirs capable of inheriting as set forth in Chapter 11, Title 89, Mississippi Code of 1972. Provided, however, any person who is not concluded as a party or privy by a decree in favor of the state in proceedings to establish an escheat, may recover of the state, by suit, the net proceeds derived from any lease and from the sale of such minerals and paid into the state treasury, if the party shall establish his right to such minerals and that the same had not properly escheated to the state; but the title of the purchaser of such minerals shall not be thereby disturbed.

§ 11-17-35

In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title. If title has passed out of the sovereign more than seventy-five (75) years prior to the filing of the bill, then the deraignment shall be sufficient if it show title out of the sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of the bill. A mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title. In all such cases, final decrees in the complainant's favor shall be recorded in the record of deeds, and shall be indexed as if a conveyance of the land from the defendant or each of them, if more than one, to the complainant or complainants, if more than one.

§ 11-17-37

In suits to try title, to cancel deeds and other clouds upon title, and to confirm title to real estate, the chancery court shall have jurisdiction to decree possession and to displace possession, to decree rents and compensation for improvements and taxes. In all cases where said courts heretofore exercised jurisdiction auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by a suit at law.

Chapter 19 Ejectment

§ 11-19-1

A civil action seeking ejectment as relief may be maintained in all cases where the plaintiff is legally entitled to the possession of the land sued for and demanded.

§ 11-19-3

The court in which an action of ejectment may be brought or be pending may exercise over the proceedings therein the like jurisdiction and control as heretofore exercised in the action of ejectment, so as to insure a trial of the title only, and of actual ouster when necessary, and for all other purposes for which such jurisdiction was heretofore exercised.

§ 11-19-5

If the premises for which the action is brought be actually occupied by any person, such actual occupant shall be made a defendant in the suit; and all other persons claiming title or interest to or in the same may also, in all cases, be joined as defendants. If the premises be not occupied, the action shall be brought against some person exercising acts of ownership over the premises claimed, or claiming title thereto or some interest therein at the commencement of the suit.

§ 11-19-9

Every tenant sued in a civil action seeking ejectment as relief shall forthwith give notice thereof to his landlord, under penalty of three (3) years' rent of the premises, to be recovered by the landlord or his representatives in a civil action. The landlord of such tenant, or any other proper person, shall, by leave of the court or judge, be admitted to appear and defend the action in all cases where the same would have been allowed heretofore, and either separately or jointly with the tenant. Any person admitted to defend as landlord in respect of property whereof he is in possession only by his tenant, shall state in his answer that he defends as such landlord, and such person shall be allowed to set up any defense he has heretofore been allowed to set up, and no other. Any judgment in such action shall have the same effect for or against such person so admitted to defend as if he had been named in the complaint and regularly served with process.

§ 11-19-11

If a tenant for life or lives be impleaded concerning the land holden, the person to whom the reversion or remainder belongs may come into court at any time before judgment, and shall be admitted to defend his right.

§ 11-19-13

If a tenant for life or lives, when impleaded, make default or give up the tenement demanded, or if the judgment be given on such default or surrender, the person to whom the reversion or remainder belongs after the determination of the life estate, shall not be prejudiced or injured by such default, surrender, or judgment.

§ 11-19-15

The consent rule, and all fictions heretofore used in a civil action seeking ejectment as relief, are abolished; and the action shall be commenced by filing a complaint in the name of the person claiming the premises in question, as plaintiff against the defendant. The complaint shall describe the premises with such certainty as will distinctly apprise the defendant of their description and situation, and so that from such description possession may be delivered. If the plaintiff claim only an undivided interest therein, it shall state such interest. If the plaintiff claim more than he is entitled to, he may, nevertheless, recover so much as he shall prove title to.

§ 11-19-19

The defendants, or any of them, shall be allowed to answer or otherwise defend the action, either jointly or separately. The answer, if the defendant do not admit the plaintiff's title, shall be “not guilty,” which shall be filed within the like time as required in personal actions; and under said answer the defendant may give in evidence any lawful defense to the action not inconsistent with the other provisions of this chapter. Any defendant may defend for a part only of the premises in question; and in such case the part shall be described in the answer with the same certainty required in the complaint.

§ 11-19-21

If the premises be not described with sufficient certainty in the complaint or answer, the court or judge may order the pleading to be amended so as to contain a sufficient description. If either party fail to comply with such order, judgment may be entered as for want of a complaint or answer, according to the circumstances of the case.

§ 11-19-23

Declarations, writs, and pleas in the form or to the effect of the precedents appended hereto, shall be good and sufficient for all purposes in proceedings under this chapter.

§ 11-19-25

| “The State of Mississippi | In the circuit court | | --- | --- | | | ___term, | | County of __________ | A.D. ___ |

“A B, plaintiff, claims the right to possession of a tract of land, situated in __________ County, containing __________ acres, more or less, and being more particularly described as follows: (here insert legal description of premises); and that the defendant wrongfully deprives him of the possession thereof, for which damage in the amount of __________ Dollars are here demanded.

“E F, Attorney for Plaintiff.”

If mesne profits be demanded, add to the above form the following:

“And the plaintiff also demands of the defendant the sum of __________ Dollars for the use and occupation of the said land by the defendant.”

§ 11-19-53

After issue joined in ejectment, either party may discover the details of the other's claim or title to the premises in question, and the response thereto shall include a short abstract of such documentary evidences of title as the party may intend to give in evidence on the trial, and a clear and succinct statement of the substance of any and all lost or destroyed documents the contents of which he may expect to prove. If title be claimed by inheritance, or if claimed on any fact which rests in parol, the facts shall be stated. In case of claim by inheritance, if either party demand it, the other shall give the ages of the several persons to whom the land descended, and the date of the death of the person from whom they inherited the premises. If any document referred to in the response to such discovery request made by law be recorded, it shall also state where it is recorded, or, if not recorded, then it shall include copies of such as are in the possession of the party, with the names of the subscribing witnesses thereto, if any. The discovery response shall be served within the time and in the manner prescribed by the Mississippi Rules of Civil Procedure and, in default thereof, evidence of such title shall not be given on the trial. In all cases, the evidence of title shall be confined to the matters contained in the discovery response.

§ 11-19-55

In case either party shall desire a survey to be made of the premises sued for in ejectment, he may cause the same to be made, after the institution of the suit, by applying to the clerk of the court in which the suit is brought to issue a commission for that purpose, directed to the county surveyor, or other surveyor, authorizing him to make a survey of the premises, and report the same, under oath, to the court at the next term. Such a survey shall not be made without first giving five days' notice to the opposite party at the time of making the same. The party at whose instance the survey was made shall pay the expenses thereof, but may recover the same as costs, in case he succeed in the action and the judgment be that the survey was necessary in deciding the issue.

§ 11-19-57

The death of a plaintiff or defendant in ejectment shall not cause the action to abate, but it may be continued after timely substitution of parties as prescribed by the Mississippi Rules of Civil Procedure.

§ 11-19-81

If it appear at the trial that the plaintiff or plaintiffs, or one (1) of them, was, at the commencement of the action, entitled to recover possession of the premises in question, or of some part thereof, but that his or their title has expired at the time of the trial, the plaintiff or plaintiffs so entitled shall, notwithstanding such expiration, have a verdict according to the fact that he had such right of recovery at the commencement of the action, and shall recover his costs of suit; but as to the premises claimed, the judgment shall be that the plaintiff be involuntarily dismissed.

§ 11-19-85

In case the action be brought by some one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener defending the action, may give notice with his answer or other defense that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property. Upon the trial of the issue, if it appear that the defendant is a joint tenant, tenant in common, or coparcener with the plaintiff, and actual ouster shall not be proved, then the plaintiff shall be involuntarily dismissed, with costs. But if it be proved either that the defendant is not a joint tenant, tenant in common, or coparcener, or that an actual ouster had taken place, then the jury shall so find by the verdict, and the plaintiff shall have judgment in accordance with the verdict for the recovery of possession and costs.

§ 11-19-87

If the jury find for the plaintiff in an action of ejectment, and the defendant have a crop then planted and growing upon the premises in question, it shall assess a reasonable rent for the plaintiff to receive for the use of the premises, for such time as it may think necessary for the defendant to make and gather his crop. If the defendant enter into bond with security, to be approved by the court, or by the clerk in vacation, in a penalty of double the amount of rent so assessed, payable to the plaintiff, conditioned for the payment of the rent assessed at the expiration of the term fixed by the jury for the defendant to hold possession of the premises, then a writ of possession shall not issue upon the judgment in the action, until the expiration of the time so allowed by the jury. The bond shall be filed in the office of the clerk of the court, and, if forfeited, shall have the force and effect of a judgment, and execution may issue thereon against the principal and sureties as upon other judgments in the court.

§ 11-19-89

If a judgment in favor of the plaintiff in an action of ejectment be affirmed by the Supreme Court, and the appellant have a crop then planted and growing upon the premises in question, and shall file with the clerk of the circuit court in which the judgment was recovered an affidavit of the fact, and shall undertake, in writing, with such sureties and such sum as the clerk may require, to pay to the opposite party the rent which may be adjudged to be paid for the use and occupation of said premises until the end of the current year, a writ of possession shall not issue until the end of the year, and the affidavit and security for rent shall be filed by the clerk among the papers in the case. The clerk may examine the parties and other persons on oath as to the value of such rent and the sufficiency of the sureties, and may require their statements to be written and signed by them.

§ 11-19-91

If such rent be not paid, on motion of the plaintiff, a motion to assess damages shall be executed at the next or any future term of the circuit court to ascertain the value of the rent of said premises, and judgment shall be rendered on the verdict for the amount found by the jury against the parties bound on such undertaking for rent. If any have died, like proceedings shall be had as provided in case of the death of any of the sureties on the bond of a claimant of personal property levied on under execution before final judgment.

§ 11-19-93

If the plaintiff allege that the amount of the security required by the clerk for rent to prevent the issuance of a writ of possession is insufficient, the circuit judge, in term time or vacation, shall hear the allegations and inquire into the matter, and may order a new undertaking for the rent to be given within such time as he shall prescribe; and if it shall not be given, a writ of possession shall be issued as if security for rent had not been given. Five days' notice of such complaint to the circuit judge shall be given to the opposite party.

§ 11-19-95

In all cases where the defendant in ejectment would be liable for mesne profits and damages, the plaintiff may declare for and recover the same in the action of ejectment, or he may have his action for mesne profits after the recovery in ejectment as heretofore. It shall be lawful in all cases for the defendant in ejectment, whether the plaintiff demand mesne profits or damages or not, or in an action of mesne profits, to plead the value of all permanent, valuable and not ornamental improvements made on the land by the defendant, or by any one under whom he holds, before notice of the intention of the plaintiff to bring the action, and all taxes that may have been lawfully paid on the land by defendant or those under whom he holds up to the date of trial, including interest, costs, and damages incident to such taxes; but a defendant shall not be entitled to such compensation for improvements or taxes unless he claim the premises under some deed or contract of purchase acquired or made in good faith.

§ 11-19-97

The jury shall find the actual cash value of such improvements and the amount of taxes paid, the value of the mesne profits and damages, and the actual cash value of the land without the improvements. Where the value of the improvements and taxes exceed the value of the mesne profits and damages, the defendant shall have a lien upon the land for the difference between the value of the mesne profits and the value of the improvements and taxes so found, and execution shall not issue in favor of the plaintiff until he shall have paid the amount so due to the defendant. Unless the plaintiff, within three months after the rendition of the verdict, pay the amount so due, the defendant may pay to the plaintiff the assessed value of the land with interest from the date of the verdict, and pay the costs of the suit, and thereupon the execution of the judgment for the recovery of the land shall be perpetually stayed. If the defendant fail to pay to the plaintiff the value of the land so assessed, with interest and costs of suit, within three months after the expiration of the time allowed the plaintiff for making payment, an execution shall issue for the sale of the land recovered in the ejectment.

§ 11-19-99

The proceeds of the sale, after payment of costs, shall be divided between the plaintiff and the defendant in proportion to the sums due them respectively as found by the verdict.

§ 11-19-101

If a tenant for life be impleaded, and judgment given against him for the lands or tenements, then the person to whom the reversion or remainder belongs at the time of such judgment, his heirs or successors, may have an appeal as well in the lifetime of the tenant as after his death. If the judgment be reversed, the tenant, if living, shall be restored to the possession of the lands or tenements, and the party prosecuting the appeal shall be entitled to the arrearages of rent for the same. If the tenant be dead at the time of judgment given on the appeal, then restitution of the lands or tenements shall be made to the party prosecuting the appeal, together with the arrearages of rent. If the party prosecuting the appeal allege that the judgment first obtained against the tenant was by covin or assent, then restitution shall be made to the party prosecuting such appeal with arrearages of rent, although the tenant be living; but in such case the tenant may have a scire facias against the party appealing if he deny and traverse the covin or assent, but not otherwise.

§ 11-19-103

A judgment in an action of ejectment shall be conclusive as to the right of possession established upon the party against whom it is recovered, and upon all persons claiming from, through, or under such party, by title arising after the commencement of the action; but if any person against whom such judgment is recovered shall be, at the time of its recovery, an infant or person of unsound mind, the judgment shall not be a bar to an action commenced by such person, or any one claiming by inheritance from, through, or under him, within three years after the removal of his disability.

§ 11-19-105

A certified copy of the complaint, the writ, the answer or other defense, if any, and the judgments in an ejectment suit may be recorded, without acknowledgment by anyone, in the proper record of conveyances of land in the county in which the land is situated; and the same shall be indexed as a deed from the unsuccessful party to the party in whose favor the final judgment is rendered.

Chapter 21 Partition of Property

§ 11-21-1

(1) Partition of land held by adult joint tenants, tenants in common, and coparceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties. They may also bind themselves by written agreement to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive between the parties, unless made or procured by fraud.

(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.

§ 11-21-3

Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five (5), may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.

However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, remaindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as plaintiffs.

§ 11-21-5

Any of the parties in interest, whether infants or adults, may institute proceedings for the partition of lands or for a partition sale thereof, by judgment of court as herein provided, except that if the court determines that the property is heir property under the Uniform Partition of Heir Property Act, then such partition or sale must comply with the provisions of Title 91, Chapter 31, Mississippi Code of 1972. All persons in interest must be made parties except (a) in cases where a part of the freehold is owned by persons owning a life estate therein or a life tenancy therein subject to the rights of remaindermen or reversioners, then, in such event, it shall only be necessary that the person or persons owning or claiming a life estate or life tenancy therein be made parties; and (b) in cases where the partition is for the surface of the land only, it shall not be necessary that persons owning divided or undivided interests in the minerals in the land be made parties unless such persons also have an interest in the surface of the land. An infant, or person of unsound mind, may sue by next friend as in other cases; but if the infant, or non compos mentis, have a guardian, the guardian must appear as next friend, unless good cause to the contrary be shown. Where an infant or non compos is made a party defendant, the guardian, if any, of such infant or non compos shall also be made a party, whether the infant or non compos be resident or nonresident and whether the guardian be a resident or a nonresident; and the said guardian may appear and answer the complaint. The summons to the defendants, including the guardian aforesaid, shall be made pursuant to the Mississippi Rules of Civil Procedure. The word “guardian,” where used in this section, shall be held to apply also to all persons who, under the laws of any other state or country, stand in that relation whether known as curator, tutor, committee or conservator, or by whatever other name or title such person may be known.

§ 11-21-7

Except as otherwise provided herein, the proceedings for partition shall be instituted and conducted as other suits in chancery; and all ex parte petitions may be heard and determined by the chancellor in term time or in vacation.

§ 11-21-9

If the title of the plaintiffs seeking partition or sale of land for a division shall be controverted, it shall not be necessary for the court to dismiss the complaint, but the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion encumbrances, if partition be made of land encumbered and it be deemed proper to do so. The court may adjust the equities between and determine all claims of the several cotenants, as well as the equities and claims of encumbrancers.

§ 11-21-11

If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests. The court may appoint a master to make the sale, and may make all proper orders to protect the rights of the parties interested. The court may order the sale of a part of the land and the partition in kind of the residue.

Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.

§ 11-21-13

If, at the hearing, it appear that the intervention of masters is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the court may order the partition and fix the amount to be paid by one (1) or several cotenants to another or others; or this may be done on hearing the report of the master.

§ 11-21-15

If the judgment is for a partition of the land, it shall state the number of shares into which the land is to be divided, and shall appoint not more than three (3) discreet freeholders, not related to the parties by consanguinity or affinity, to make partition according to the judgment. Either party may object to any master for cause, and, in case the objection is sustained, the place shall be filled by another appointment. If any vacancy occurs among the masters, the chancellor may fill the vacancy at any time by written appointment.

§ 11-21-17

Before the special commissioners enter upon the discharge of their duties, they shall take and subscribe an oath before some competent officer, that they will honestly, faithfully and impartially make the partition decreed, and perform the duties required of them to the best of their skill, knowledge and judgment.

§ 11-21-19

The special commissioners shall, if deemed advisable, cause a survey to be made of the lands to be divided, in their presence, and shall divide the same into the number of parts or shares directed in the order containing their appointment, each part or share to contain one or more lots, as the special commissioners may think proper, having regard to the situation, quantity, quality and advantages of each part or share, so that they may be equal in value as nearly as may be, or according to the respective rights of the parties. If the bounds or title of any tract be controverted and the controverted part be valuable, the special commissioners shall separate it from the part not controverted, and make a partition of the tract or tracts in such manner that a portion of the controverted part may be allotted to each share, as well as a portion of the part not controverted. The special commissioners, or any one of them, previous to the survey, if any, shall administer an oath to the surveyors and chain bearers that they will honestly and impartially perform their respective duties.

§ 11-21-21

The special commissioners, if the same have not been done by the surveyor, shall make a plat of land to be divided; shall make true field notes, specifying the metes and bounds of the several shares, and of each parcel of each share which contains more than one parcel; and the several shares and parcels of shares shall be distinctly designated on the plat and numbered from one progressively, and the same number shall designate the several parcels of one share; and they shall allot the several shares in the following manner: The special commissioners shall publicly number as many tickets as there are shares marked on the plat, and put the tickets into a hat or box, and the names of the persons entitled to shares shall be written on separate tickets and put into another hat or box, when a person appointed for that purpose by the special commissioners shall proceed to draw a ticket of those containing the names, and then a ticket of the numbers, and so proceed until the whole are drawn; and the number which shall be drawn to the name of any cotenant shall be his separate share in the land so divided. The special commissioners shall make certificate of the balloting, signed by them, specifying the time, place and manner thereof, and the allotment of shares.

§ 11-21-23

Instead of making an allotment of shares by ballot, the special commissioners may assign shares to the parties entitled, if so directed by the court or chancellor, or if they find it desirable, and in any case, if an equal partition in kind cannot be made otherwise, or so advantageously, the special commissioners may assess the amount of money to be paid by one or more of the cotenants to another or others, so as to equalize their respective shares.

§ 11-21-25

The special commissioners shall make to the court, at the first term held after they have acted, or else as the court shall direct, a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court, and other special commissioners appointed, or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.

§ 11-21-27

If, after a judgment for partition and the appointment of masters, it shall appear from the report of the masters, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cotenants, the court shall order a sale of the land, or such part thereof as may be deemed proper, and a division of the proceeds among those interested, as provided for.

Before the court shall order a sale of the lands, the court may cause an appraisal to be made of the property, the expense of which shall be taxed and collected as costs in the proceedings. If the court causes an appraisal of the property to be made, then, subsequent to the receipt and filing of the appraisal with the court, the court shall hold in abeyance its order for sale of the land for a period of thirty (30) days in order to allow the parties the opportunity to reach an agreement as to a partition in kind or sale of the lands.

§ 11-21-29

The court in which the cause is pending, or the chancellor or judge thereof in vacation, shall fix and allow reasonable compensation for each of the masters, and such compensation shall be taxed and collected as costs in the suit.

§ 11-21-31

In all cases of the partition or sale of property for division of proceeds, the court may allow a reasonable attorney's fee to the attorney or the plaintiff, to be taxed as a common charge on all the interests, and to be paid out of the proceeds in case of a sale, and to be a lien on the several parts in case of partition.

§ 11-21-33

In all cases where owelty is allowed, it shall be a lien upon the share of the party charged therewith, which shall be superior to all other liens made or suffered by such party.

§ 11-21-35

The final judgment of the chancery court in partition proceedings shall ascertain and settle the rights of all parties; and it, and the judgment confirming the partition, shall constitute an instrument of evidence in all questions as to the title of the lands which may be the subject of the judgment, in all courts, and shall be conclusive as to the rights of all parties to the suit, and subject to motions and other post trial review, as in other suits, and to a repartition as provided.

§ 11-21-37

Judgments making partition shall be recorded in the record book of conveyances of the county or district in which any of the lands are situated, within three (3) months after the partition is confirmed; and a partition, the judgment making which is not so deposited with the clerk for record, shall not be valid as against purchasers without notice, or against creditors.

§ 11-21-39

Any mortgage or other lien executed by any joint tenant, tenant in common, or coparcener, shall remain in force on the share of such cotenant after partition, and on his share only; but this shall not prevent the holder of such mortgage or other lien from asserting claim to owelty awarded to such cotenant.

§ 11-21-41

Nothing herein contained shall be construed so as to injure, prejudice, defeat or destroy the estate, right, or title of any person claiming a tract of land, or any part thereof, or any piece or lot of land by title under any other person, or title paramount to the title of the joint tenants, tenants in common, or coparceners, among whom partition may have been made.

§ 11-21-43

If any person who has received a share of land partitioned, shall be evicted therefrom, or from any portion thereof, by a paramount title existing at the time of the partition, and there be a residue of land left not subject to such paramount title, the party so evicted shall be entitled to a new partition of the residue.

§ 11-21-45

Where the partition was in kind, any joint tenant, tenant in common, or coparcener shall be entitled to a new partition at any time within one year after the first partition, provided, he shall present his sworn petition for that purpose to the chancery court which decreed the partition and shall show thereby (a) that at the time of the partition he was absent from, or a nonresident of the state, and (b) that neither he nor any agent of his received any notice or knowledge whatever of the pendency of the bill for partition, and (c) that the first partition was unfair or unjust or fraudulent as to him, and (d) shall exhibit with said petition the affidavit of at least one credible person to the same effect. Whereupon, if satisfied with the truth of all the grounds aforesaid, the court may proceed to award a new partition; but one who has made improvements on the share first assigned him shall not be evicted from such share; nor shall the improvements be estimated by the second commissioners in fixing its value, but it shall be valued as though the improvements had not been made. If the premises have been sold, and purchased by any of the joint tenants, tenants in common, or coparceners, the nonresident or absent joint tenant, tenant in common or coparcener shall be entitled to set aside such sale at any time within one year thereafter, if it can be shown to have been unfairly made, and fraudulent as to him. In proceedings under this section, all persons interested shall be summoned to appear and contest the application.

§ 11-21-71

Any person entitled to a division of personal property may apply therefor to the chancery court of the proper county, subject to the foregoing provisions of Sections 11-21-1 through 11-21-45 in reference to land, as far as applicable, considering the difference in the kind of property; and a sale or a division may be ordered in such cases, as provided for in case of land which is incapable of equal division, or which it may be to the interest of the parties to sell, and the court shall have power to make all such orders as may be necessary to protect the rights of parties. And any sale or partition ordered in such cases shall be made and reported as in case of the sale or partition of land; and decrees making partition shall vest title according to their terms. In such cases, the court or chancellor may make all orders, and cause to be issued all process necessary to secure the rights of parties; and writs of sequestration may be issued as provided for in any other cases in which they are authorized.

§ 11-21-73

A tenant in common of personal property, not exceeding in value the amount provided in Section 9-11-9, may apply for a partition of it by petition in writing to the county court of the county in which the property or some part of it may be, or, in counties not having a county court, to the justice court of the county in which the property or some part of it may be. Thereupon, all the cotenants shall be summoned and the rights of parties ascertained, and an order made for a division of the property. If the property be incapable of division in kind according to the several interests, or if a sale and division of the proceeds will better promote the interests of parties, the county court or justice court, as the case may be, shall order a sale and a division of its proceeds, and may designate a person to make the sale, and may issue execution specially framed to that end, and make all orders necessary or proper to protect the rights of parties and to effect a sale and division of the proceeds.

§ 11-21-75

If partition be ordered, it shall be made by the county court or the justice of the peace, as the case may be, who shall value the property and divide it equally into as many shares as there are separate owners, and allot the several shares to the different owners after the manner prescribed for the proceeding of commissioners to make partition of real estate, as nearly as may be. A statement of such allotment shall be made by the county judge or the justice on his docket, so as to show what property was allotted to each party. The allotment shall vest the title of the property in the parties to whom it is allotted.

§ 11-21-77

If the petitioner make affidavit at the commencement of his suit, or afterwards, of his right as a tenant in common, and that there is danger of the removal of the property, so as to defeat or endanger his right, the county court or the justice of the peace, as the case may be, shall issue a writ for the seizure of the property; and if the person having it in possession will not give a bond with sufficient sureties, approved by the officer executing the writ, conditioned to have the property forthcoming to abide the final order which shall be made in the case, payable to the petitioner, in a sum sufficient to cover his interest in the property, it shall be delivered to petitioner on his giving a bond, payable to the person from whom it was taken, with sufficient sureties, approved as above provided, in a penalty equal to the value of the interest of such person, conditioned to have the property before the county court or the justice of the peace, as the case may be, to abide the final order in the case; but if neither party give the required bond, the property shall remain in the hands of the officer, unless it be perishable or expensive to keep, in which case it shall be sold, as such property seized under attachment is sold, and the proceeds of the sale shall be disposed of according to the rights of the parties.

§ 11-21-79

A sale of property ordered by the county court or a justice of the peace, as the case may be, to be made for a division of the proceeds shall be made for cash and on such notice and at such place as sales of like property are made under execution issued by the county court or a justice of the peace, and the money arising from the sale shall be paid to the county court or the justice of the peace, as the case may be, for division among the parties.

§ 11-21-81

A person aggrieved may appeal from the judgment of the county court or the justice of the peace, as the case may be, in refusing or ordering a sale or partition, or in making partition, or from any final action of the county court or the justice of the peace, as the case may be, as in any other civil case decided by the county court or a justice of the peace. On appeal, the circuit court may give such judgment as may be right.

Chapter 23 Trial of Right of Property

§ 11-23-1

Upon affidavit of a defendant, before pleas filed in any action in a circuit court upon contract or for the recovery of personal property, that a third party, without collusion with him, has a claim to the subject of the action, and that he is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping or payment, or deposit in court, or delivery of the subject matter of the action to such person as it may direct, and an order requiring such third party to be summoned to appear in a reasonable time and maintain or relinquish his claim against the defendant. If such third party, being duly summoned, as provided for in the Mississippi Rules of Civil Procedure, shall fail to appear, the court may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if such third party appear, he shall be allowed to make himself defendant in the action at law instead of the original defendant, who shall be discharged from all liability to either of the other parties, in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof. If the claim of such third party extend to only a part of the subject matter of the action, similar proceedings may be had respecting the part so claimed, and the action shall proceed as to the residue as in other cases.

§ 11-23-3

The provisions of the Section 11-23-1 shall be applicable to any action brought in a circuit court against a sheriff or other officer for the recovery of personal property taken by him under executions or attachment, or for the proceeds of property so taken and sold by him; and the defendant in any such action shall have the benefit of said provisions against the party in whose favor the execution or attachment issued by making affidavit that the property, for the recovery of which or its proceeds the action is brought, was taken under process, describing it; and in such case the judgment of the court shall be framed to effect justice between the parties according to their rights.

§ 11-23-7

When any person not a party to the execution shall claim to be the owner of or to have a lien on any personal property levied upon, such person may make affidavit to his right or title to the property, and may enter into bond, payable to the plaintiff in the execution, with one or more sufficient sureties, in the penalty of double the value of the property claimed, or in double the amount of the execution, if that be less than the value of the property, to be estimated by the officer holding the execution, and indorsed thereon, conditioned for the prosecution of the claim with effect, or, in case of failure therein, for the payment to the plaintiff in the execution of all damages that may be awarded against the claimant, and for the delivery of the property to the proper officer; and upon the making of the affidavit and bond, the officer holding the execution shall receive the same, and shall deliver the property to the claimant, and return the affidavit and bond with the execution. The claim may be interposed without giving bond, and the same proceedings be had thereon except that the property claimed shall not be delivered to the claimant, but shall be sold, as provided in case of property of like kind seized in replevin, or, if not such as should be sold, shall be held by the officer. The bond of the claimant shall stand as security to the parties to the action and judgment may be rendered on it according to the exigency.

§ 11-23-9

Further proceedings on the execution shall be stayed for an amount equal to the value of the property claimed, as returned by the officer, until final decision of the claim; and on all subsequent executions issued on the judgment prior to the final decision of the claim, the clerk shall indorse the amount of the estimated value for the government of the officer to whom the same may be directed; but the plaintiff may dismiss the levy, and have execution as if it were never made.

§ 11-23-11

Upon the return of the execution with the affidavit and bond, if any, the court shall, on motion of the plaintiff in execution, direct an issue to be made up between the parties to try the right of property at the same term, unless good cause be shown for a continuance.

§ 11-23-13

If by default of the plaintiff in execution an issue for the trial of the right of property be not made up at the term to which the execution is returnable, the court shall discharge the claimant from his bond, and the property shall not thereafter be subject to execution on plaintiff's judgment; but if the claimant fail to join issue when tendered at the first term, the court, at the instance of the plaintiff in execution, shall order a writ of inquiry as to the value of the property, and also to inquire whether or not the claim was made for fraudulent purposes or for purposes of delay.

§ 11-23-15

On the trial of the issue, the burden of proof shall be on the plaintiff in execution, and the issue shall be tried as in ordinary actions at law, and either party shall have the same rights as in other trials. The jury trying the issue, in case it find in favor of the plaintiff in execution, shall assess the value of the property subject to the execution, and shall certify whether the claim was made for fraudulent purposes or for delay. The valuation of the officer taking the bond of the claimant shall be prima facie evidence of the value of the property; and in case the jury fail to find the value of the property, the plaintiff may, at his election, take judgment for the value as returned by the officer, or have a writ of inquiry.

§ 11-23-17

If the verdict be in favor of the plaintiff in execution, either on an issue joined or on an inquiry by default, or in case the plaintiff take judgment by default, and elect to take the value as returned by the officer, the court shall render judgment against the claimant and the sureties on his bond, for the restoration of the specific property to the officer, if to be had, and, if not, for the payment of its value not exceeding the amount of the original judgment to the plaintiff, and all costs. If the jury find that the claim was made for fraudulent purposes, or for delay, the judgment shall also award the plaintiff ten per centum damages on the value of the property. If the property be restored to the officer, it shall be sold, under a venditioni exponas to be issued for that purpose, as if the claim had not been made. If bond be not given, and the property or its proceeds be in the hands of the officer, the judgment may be modified accordingly. If the verdict be in favor of the claimant, he shall recover his costs, the levy shall be removed, the claimant shall be discharged from his bond, and the property shall not thereafter be subject to execution on plaintiff's judgment.

§ 11-23-19

All the provisions of law in reference to the death of either party, and the revival of the cause, in personal actions, and the death of any of the obligors, in a bond given in the progress of a cause, and the proceedings thereon before or after judgment, shall apply to proceedings under Sections 11-23-7 through 11-23-29; but in case the claimant shall die before judgment, and there be no representative of his estate, judgment shall be entered against the sureties on his bond for the property, or the value thereof, as assessed by the sheriff, or to be found by the verdict of a jury impaneled to inquire of the same, at the option of the plaintiff, with interest on such value from the date of the claimant's bond.

§ 11-23-21

If the sureties on the claimant's bond shall become insufficient, the court, on motion of the plaintiff, may require the claimant to give a new bond or to surrender to the officer the property claimed. If new bond be given, the sureties thereon shall be jointly liable with the sureties on the first bond, but if the claimant fail to give a new bond and to surrender the property, judgment shall be rendered against him and the sureties on his bond as by default. If the claimant surrender the property as required, the sureties on the bond given shall thereby be discharged, and the cause shall be proceeded with as if the officer had retained the property in the first instance.

§ 11-23-23

If the claimant shall not be a resident of the county in which the execution is issued, and the property be levied on in the county of his residence, the venue for the trial of the issue may be changed, on his application, to the circuit court of the county of his residence, and the result shall be certified to the court. The procedure governing a claimant's objection to venue and transfer thereof shall be as provided for in the Mississippi Rules of Civil Procedure.

§ 11-23-25

If the claim be interposed in a court of a justice of the peace, on filing the affidavit and bond, or the affidavit, if a bond be not given, the justice shall fix a day for the trial, and give notice thereof to the parties.

§ 11-23-27

A claimant's affidavit may be in the following form, viz.:

State of Mississippi, __________ County:

“Before me, __________, a justice of the peace of said county, __________ makes oath that a certain __________ [here describe the property], levied on by virtue of an execution in favor of __________ against __________, issued by __________, a justice of the peace of said county, on the ___ day of __________, A.D. __________, and now in the hands of __________, a __________ of __________ county, under said execution, is the property of affiant, and is not the property of __________.

“Sworn to and subscribed before me, __________, A.D.____________________, J. P.”

§ 11-23-29

A claimant's bond may be in the following form, viz.:

“We, __________, principal, and __________ and __________, sureties, bind ourselves to pay __________ dollars, unless the said __________ shall prosecute with effect his claim to a __________ [here describe the property], levied on by virtue of an execution issued on the ___ day of __________, A.D. __________, by __________ court of __________ county, in favor of __________ against __________, returnable before the __________ court on the ___ day of __________, A.D. __________, and valued at __________ dollars: or, in case he fail therein, shall pay to the said __________ all such damages as may be awarded against the said __________, in case his claim shall not be sustained, and shall deliver the same property to the officer having said execution, if the claim thereto shall be determined against the said __________.

“Witness our hands, this ___ day of __________, A.D. __________.

“, “, “,

“I approve the foregoing bond and sureties, this the ____ day of _______, A.D. __________.

___________________________ Sheriff.”

Chapter 25 Unlawful Entry and Detainer

§ 11-25-1

Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed.

§ 11-25-3

The purchaser of land at a sale for taxes, or his vendee, after two years from the date of the sale for taxes, and within three years from such date, may bring the action of unlawful detainer, for the recovery of possession of the land; and a judgment in his favor in the action shall be a bar to any action in any court brought after one year from the date of such judgment, to controvert the tax title to the land, saving the rights of infants and persons of unsound mind to redeem the same.

§ 11-25-5

The party turned out of possession, or held out of possession, may exhibit his complaint before the clerk of the justice court of the county within which the lands, or some part thereof, may lie, to the following effect:

“County of __________, to wit:

“AB, of said county, complains that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, whereof he prays the possession. AB, Plaintiff.”

The complaint shall be verified by the oath or affirmation of the plaintiff, certified at the foot thereof, after the following manner:

“County of __________, to wit:

“This day the above-named AB made oath (or affirmed) before me, the clerk of the justice court for said county, that the allegations of the above complaint are correct and true.

“Given under my hand, this ___ day of __________, A.D. . EF, Clerk of the Justice Court.”

§ 11-25-7

The clerk of the justice court before whom the complaint is made shall thereupon issue a warrant to the following effect:

“The State of Mississippi

“To the Sheriff of __________ County:

“WHEREAS, AB hath made complaint on oath (or affirmation), before me, the clerk of the justice court for the said county, that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, and hath prayed the possession thereof, this is therefore to command you to summon the said CD to appear at __________ (which shall be at the usual place of holding the justice court of the justice court judge to whom the case is assigned), on the ___ day of __________, before said justice court judge, to answer to the complaint, and have then there this warrant.

“Witness my hand, this ___ day of __________.

EF, Clerk of the Justice Court”

§ 11-25-11

The warrant shall be directed to the sheriff or any constable of the proper county, as the case may require, and shall be made returnable on a day certain, not less than five (5) days nor more than twenty (20) days after its date, and shall be forthwith executed by the proper officer on the defendant, in the same manner as a summons is required to be served, by delivering a copy, and he shall make due return to the justice court judge to whom the case is assigned, at the time and place therein mentioned, of the manner in which he shall have executed the same.

§ 11-25-13

At any time after the warrant is issued, the clerk of the justice court or the justice court judge to whom the case is assigned may, upon application of either party, issue subpoenas for witnesses, requiring them to attend court before the justice court judge to whom the case is assigned at the time appointed, to give evidence on the trial.

§ 11-25-15

Depositions may be taken to be read on the trial, in the same manner and under the same circumstances as in cases before justices of the peace.

§ 11-25-17

It shall be the duty of the justice court judge to whom the case is assigned, on the days specified, to hold a court for the trial of the complaint. The court shall be considered a court of record. It shall have power to issue alias writs for the defendant, and all proper process to bring before it witnesses or other persons whose attendance may be lawfully required; and may adjourn from day to day and from time to time until the trial shall be ended. The sheriff or constable, as the case may require, shall be attendant upon the court and execute its orders.

§ 11-25-19

If on the day of court and at the place designated, it appears that the defendant has been duly served with the warrant, the justice court judge shall proceed, without further pleadings in writing, to the trial of the complaint.

§ 11-25-21

The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent of the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the justice court judge shall find, upon the evidence, the arrears of rent or reasonable compensation, and may give judgment against the defendant in the action for such arrears of rent or reasonable compensation, and award a writ of fieri facias thereon.

§ 11-25-23

If the finding be for the plaintiff, the justice court judge shall render judgment in favor of the plaintiff that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem; and the justice court judge may issue alias writs and enforce the judgment and punish for contempt of process thereon; but a writ of habere facias possessionem or execution shall not issue within five (5) days from the date of the judgment.

§ 11-25-25

In case of forfeiture under contract of purchase, the purchaser, and in case of foreclosure of deeds in trust or mortgages, the mortgagor shall be entitled to cultivate and gather the crops, if any, planted by him and grown or growing on the premises at the time of the commencement of the suit; and shall, after eviction therefrom have the right to enter thereon for the purpose of completing the cultivation and removing the crops, first paying or tendering to the party entitled to the possession a reasonable compensation for the use of the land. The court may, on demand of the defendant, adjudge the sum to be paid or tendered.

§ 11-25-27

If the finding be in favor of the defendant, the justices shall render judgment against the plaintiff that his complaint be dismissed, and the defendant recover of him full costs. The judgment of the justices, either in favor of the plaintiff or the defendant, shall be executed in the same manner as the judgment of any other court of record.

§ 11-25-31

A judgment rendered in a suit of unlawful entry or detainer, either for the plaintiff or defendant, shall not bar any action in the circuit court between the same parties, respecting the same land; nor shall any judgment given therein be held conclusive of the facts found in any other action between the same parties.

§ 11-25-101

Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed.

§ 11-25-103

The purchaser of land at a sale for taxes, or his vendee, after two years from the date of the sale for taxes, and within three years from such date, may bring the action of unlawful detainer, for the recovery or possession of the land; and a judgment in his favor in the action shall be a bar to any action in any court brought after one year from the date of such judgment, to controvert the tax title to the land, saving the rights of infants and persons of unsound mind to redeem the same.

§ 11-25-105

The party turned out of possession, or held out of possession, may exhibit his complaint before the judge or clerk of the county court of the county within which the lands, or some part thereof, may lie, to the following effect:

“County of __________, to-wit:

“AB, of said county, complains that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, whereof he prays the possession.

“AB, Plaintiff.”

The complaint shall be verified by the oath or affirmation of the plaintiff, certified at the foot hereof, after the following manner:

“County of __________, to-wit:

“This day the above-named AB made oath (or affirmed) before me, __________ of the county court for said county, that the allegations of the above complaint are correct and true.

“Given under my hand, this ___ day of __________ A.D. __________.

“EF, __________ of the County Court.”

§ 11-25-107

The county judge or the clerk of the county court upon the filing of the complaint shall thereupon issue a warrant to the following effect:

“The State of Mississippi.

“To the Sheriff of __________ County:

“Whereas, AB hath made complaint, on oath (or affirmation), before me, __________ of the county court for the said county, that CD hath unlawfully turned him out of possession (or unlawfully withholds from him the possession) of certain land (here describe it), lying and being in the said county, and hath prayed the possession thereof, this is therefore to command you to summon the said CD to appear at __________ (which shall be at the usual place of holding the county court), on the ___ day of __________, before the county court, to answer to the complaint.

“Witness my hand, this ___ day of __________.

“EF, __________ of the County Court.”

§ 11-25-109

The warrant shall be directed to the sheriff, or any constable of the county, and shall be made returnable to the first term of the county court held after the issuance of the said warrant, unless it shall be issued more than ten days before the said term of court when it may be made returnable before the judge of the county court at the usual place of holding the county court at a day to be named not more than ten days, or less than five days, after the date of issuance of the said warrant; and the cause shall be triable at such term, or before the judge in vacation, (if so returnable), on the day therein, provided the defendant has been served with process at least five days before the return day of writ.

§ 11-25-111

The plaintiff may, on the trial, claim and establish by evidence, any amount due for arrears of rent on the land of which possession is sought, or a reasonable compensation for the use and occupation thereof; and the judge of the county court, shall find upon the evidence the arrears of rent or reasonable compensation and the judge of the county court may give judgment against the defendant in the action for such arrears of rent or reasonable compensation and may award a writ of fieri facias thereon. All such cases shall be tried by the judge without the intervention of the jury.

§ 11-25-113

If the finding be for the plaintiff, the judge of the county court shall render judgment in favor of the plaintiff, that he recover possession of the land, with costs, and shall award a writ of habere facias possessionem, and said judge may issue alias writs and enforce the judgment and may punish for contempt of process thereon; provided, however, that a writ of habere facias possessionem or execution shall not issue within five days from the date of judgment.

§ 11-25-115

In case of forfeiture under contract of purchase, the purchaser, and in case of foreclosure of deeds in trust or mortgages, the mortgagor shall be entitled to cultivate and gather the crops, if any, planted by him and grown or growing on the premises at the time of the commencement of the suit; and shall, after eviction therefrom have the right to enter thereon for the purpose of completing the cultivation and removing the crops, first paying or tendering to the party entitled to the possession a reasonable compensation for the use of the land. The court may, on demand of the defendant, adjudge the sum to be paid or tendered.

§ 11-25-117

If the finding be in favor of the defendant, the court shall render judgment against the plaintiff that his complaint be dismissed, and that the defendant recover of him full costs.

§ 11-25-119

A judgment rendered in a suit of unlawful entry or detainer, either for the plaintiff or defendant, shall not bar any action in the circuit court between the same parties, respecting the same land; nor shall any judgment given therein be held conclusive of the facts found in any other action between the same parties.

Chapter 27 Eminent Domain

§ 11-27-1

Any person or corporation having the right to condemn private property for public use shall exercise that right as provided in this chapter, except as elsewhere specifically provided under the laws of the state of Mississippi.

§ 11-27-3

A special court of eminent domain is hereby created, to consist of a judge, jury, and such other officers and personnel as hereinafter set out, and it shall have and exercise the jurisdiction and powers hereinafter enumerated. The original powers and jurisdiction shall be and is hereby fixed in the county court in each county that has elected to come under the provisions of Section 9-9-1 Mississippi Code of 1972, or that may hereafter come under the provisions of said Section 9-9-1, and in every other county of this state, the original powers and jurisdiction shall be and is hereby fixed in the circuit court of such county, which said powers and jurisdiction may be exercised in full either in termtime or vacation, or both.

§ 11-27-5

Any person or corporation having the right to condemn private property for public use shall file a complaint to condemn with the circuit clerk of the county in which the affected property, or some part thereof, is situated and shall make all the owners of the affected property involved, and any mortgagee, trustee or other person having any interest therein or lien thereon a defendant thereto. The complaint shall be considered a matter of public interest and shall be a preference case over other cases except other preference causes. The complaint shall describe in detail the property sought to be condemned, shall state with certainty the right to condemn, and shall identify the interest or claim of each defendant.

§ 11-27-7

The complaint shall be filed with the circuit clerk and shall be assigned a number and placed on the docket as other pleadings in circuit court or county court. The plaintiff shall also file a lis pendens notice in the office of the chancery clerk immediately after filing the complaint. The circuit clerk, or the plaintiff by his attorney, shall forthwith present such complaint to the circuit judge or county judge, as the case may be, who shall by written order directed to the circuit clerk fix the time and place for the hearing of the matter, in termtime or vacation, and the time of hearing shall be fixed on a date to allow sufficient time for each defendant named to be served with process as is otherwise provided by the Mississippi Rules of Civil Procedure, for not less than thirty (30) days prior to the hearing. If a defendant, or other party in interest, shall not be served for the specified time prior to the date fixed, the hearing shall be continued to a day certain to allow the thirty-day period specified. Not less than twenty (20) days prior to the date fixed for such hearing, the plaintiff shall file with the circuit clerk and serve upon the defendants, or their respective attorneys, a statement showing: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the plaintiff. Not less than ten (10) days prior to the date fixed for such hearing, each of the defendants shall file with the circuit clerk and serve upon the plaintiff, or his attorney, a statement showing: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the defendants. In each such instance, both the plaintiff and the defendant shall set out in such statement the asserted highest and best use of the property and shall itemize the elements of damage, if any, to the remainder if less than the whole is taken. The statements required by this section shall constitute the pleadings of the parties with respect to the issue of value, and shall be treated as pleadings are treated in civil actions in the circuit court. The judge, for good cause shown, may increase or decrease the time for pleading by the plaintiff or by the defendant.

§ 11-27-11

The circuit clerk shall deliver a copy of said order of the court fixing the time and place for the hearing to the sheriff of the county and to the official court reporter. The sheriff shall attend the court and execute all process. The court reporter shall take the testimony. The circuit clerk, in the presence of the sheriff and chancery clerk, shall draw from the jury box of the court the names of twenty-four (24) jurors, or such numbers of jurors as shall be ordered by the court, who shall serve in said court, and shall issue a venire facias to the sheriff, commanding him to summon the jurors so drawn to appear at the time and place designated by the order of the court. All acts and actions of the clerk and sheriff, including the return endorsed on each summons issued, shall be filed by the clerk and made a part of the record in the cause.

§ 11-27-13

Each different property, identified by separate ownership, shall constitute a separate civil action and shall require a separate trial, unless otherwise agreed by all parties with the approval of the court. Trial shall be to a jury which shall be examined and impaneled in accordance with the Mississippi Rules of Civil Procedure. Alternatively, trial may be to the court, as provided by the Mississippi Rules of Civil Procedure.

§ 11-27-15

Any defendant may, not less than five (5) days prior to the date fixed for the hearing of the complaint and in the same court where the complaint is pending, serve and file a motion to dismiss under the Mississippi Rules of Civil Procedure for failure to state a claim upon which relief can be granted on any of the following grounds: (1) that the plaintiff seeking to exercise the right of eminent domain is not, in character, such a corporation, association, district or other legal entity as is entitled to the right; (2) that there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn; or (3) that the contemplated use alleged to be a public use is not in law a public use for which private property may be taken or damaged. Any such motion, if served and filed, shall be heard and decided by the judge as a preference proceeding, without a jury, prior to the hearing on the complaint. Any party may appeal directly to the Supreme Court from an order overruling or granting any such motion to dismiss, as in other cases, but if the order be to overrule the motion, the appeal therefrom shall not operate as a supersedeas and the court of eminent domain may nevertheless proceed with the trial on the complaint. Any appeal from an order overruling or granting a motion to dismiss shall be a preference action in the Supreme Court and advanced on the docket as appropriate.

§ 11-27-17

When the jury shall be so impaneled, the jurors shall be sworn as follows: “I do solemnly swear or affirm that as a member of this jury I will discharge my duty honestly and faithfully, to the best of my ability, and that I will a true verdict render according to the evidence, without fear, favor, or affection, and that I will be governed by the instructions of the court. So help me God.”

§ 11-27-19

Evidence may be introduced by either party, and the jury may, in the sound discretion of the judge, go to the premises, under the charge of the court as to conduct, conversation and actions as may be proper in the premises. Evidence of fair market value shall be established as of the date of the filing of the complaint. Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the jury from the date of the filing of the complaint until payment is actually made; provided, however, that interest need not be paid on any funds deposited by the plaintiff and withdrawn by the defendants prior to judgment. At the conclusion of the trial, the court shall instruct the jury in accordance with the Mississippi Rules of Civil Procedure.

§ 11-27-21

In determining damages, if any, to the remainder if less than the whole of a defendant's interest in property is taken, nothing shall be deducted therefrom on account of the supposed benefits incident to the public use for which the petitioner seeks to acquire the property.

§ 11-27-23

In the trial of all cases provided for herein, nine (9) jurors may bring in a verdict as in other civil cases. The verdict of the jury shall be in the following form: “We, the jury, find that the defendant (naming him) will be damaged by the acquisition of his property for the public use, in the sum of __________ Dollars.”

§ 11-27-25

Upon the return of the verdict, the court shall enter a judgment as follows, viz: “In this case the claim of (naming him or them) to have condemned certain lands named in the complaint, to-wit: (here describe the property), being the property of (here name the owner), was submitted to a jury composed of (here insert their names) on the ___ day of __________, A.D., __________, and the jury returned a verdict fixing said defendant's compensation and damages at __________ Dollars, and the verdict was received and entered. Now, upon payment of the said award, with legal interest from the date of the filing of the complaint, ownership of the said property shall be vested in plaintiff and it may be appropriated to the public use as prayed for in the complaint. Let the plaintiff pay the costs, for which execution may issue.”

§ 11-27-27

Upon the return of the verdict and entry of the judgment, the applicant shall pay to defendants, or to the clerk if defendants absent themselves, the differences between the judgment and deposits previously made, if any; shall pay the costs of court, including the cost of jury service as is otherwise provided by law for the court in which the case is tried. Then, ownership of the property described in the petition shall be vested in petitioner and it may use said property as specified in the petition. If deposits previously made exceed the judgment, then the clerk or defendant to whom disbursement thereof has been made, as the case may be, shall pay such excess to the petitioner.

§ 11-27-29

(1) Every party shall have the right to appeal directly to the Supreme Court from the judgment entered in the special court of eminent domain, whether tried in county court or circuit court, by giving notice within ten (10) days from the date of the judgment or final order entered by the court to the court reporter to transcribe the record as taken and by prepaying all costs that may be adjudged against him; and said notice to the court reporter shall be given and the costs shall be paid as is otherwise required by law for appeals to the Supreme Court. If the judgment be in excess of the sum, if any, deposited, and the plaintiff, other than the State of Mississippi or any political subdivision thereof, desires an appeal, he shall deposit a sum, or a good and sufficient surety bond with a surety company authorized to do business in the State of Mississippi acceptable to the clerk, equal to double the amount of the judgment, less the amount of the deposit, if any, which shall be held exclusively to secure all damages assessed against plaintiff. In any case where the deposit exceeds the compensation to be paid the defendants as determined by the final judgment, the excess shall be returned to the plaintiff. If the appeal is by the defendant, it shall not operate as a supersedeas, nor shall the right of the plaintiff to enter in and upon the land and to appropriate the same to public use be delayed. If the appeal be by the State of Mississippi or any political subdivision thereof, no bond or prepayment of costs shall be required, except the Supreme Court filing fee as required by Section 25-7-3.

(2) The term of a special court of eminent domain shall begin when the court is convened as provided by statute and shall continue for ten (10) days immediately following the entry and filing of a judgment or final order with the clerk of the court, and thereafter the court shall have jurisdiction to dispose of any post trial motions or proceedings filed within said ten (10) days. The jurisdiction of a special court of eminent domain shall expire upon the entry and filing with the clerk of a final judgment or order disposing of any post trial motions or proceedings.

§ 11-27-30

No property acquired by the exercise of the power of eminent domain under the laws of the State of Mississippi shall, for a period of ten (10) years after its acquisition, be transferred or any interest therein transferred to any person, nongovernmental entity, public-private partnership, corporation, or other business entity with the following exceptions:

(a) The above provisions shall not apply to drainage and levee facilities and usage, roads and bridges for public conveyance, flood control projects with a levee component, seawalls, dams, toll roads, public airports, public ports, public harbors, public wayports, common carriers or facilities for public utilities and other entities used in the generation, transmission, storage or distribution of telephone, telecommunication, gas carbon dioxide, electricity, water, sewer, natural gas, liquid hydrocarbons or other utility products.

(b) The above provisions shall not apply where the use of eminent domain (i) removes a public nuisance; (ii) removes a structure that is beyond repair or unfit for human habitation or use; (iii) is used to acquire abandoned property; or (iv) eliminates a direct threat to public health or safety caused by the property in its current condition.

§ 11-27-31

In case the property sought to be condemned be in more than one (1) county, proceedings may be instituted in either of the counties in which a part of said property is situated.

§ 11-27-33

The provisions of this chapter shall not be applied to cases provided for by Section 233 of the Constitution, or to those cases covered under the provisions of Section 51-29-39, Mississippi Code of 1972.

§ 11-27-35

Telephone, telegraph or street railway companies, may acquire a right-of-way across railroads by condemnation by proceeding in accordance with the provisions of this chapter. If a right-of-way across a railroad has been condemned by a telegraph, telephone or street railway company, the railroad company shall be advised of the manner in which such telephone or telegraph company proposes to erect its poles and string its wires or place plant facilities underground, and in case of a street railway company, it shall give the railroad company notice of the manner in which it proposes to construct its tracks across the railroad, and if the railroad company shall object thereto, the public service commission shall have jurisdiction, upon complaint filed with it by the railroad company, to enter an order directing how the poles and wires or underground plant, if a telephone or telegraph company, shall be erected and strung or placed underground, and how tracks, if a street railway company, shall be constructed, and the railroad shall be crossed as ordered, and in no other manner.

§ 11-27-37

In case the plaintiff shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or in case the suit shall be dismissed by the plaintiff except pursuant to settlement, or the judgment be that the plaintiff is not entitled to a judgment condemning property, the defendant may recover of the plaintiff in an action brought therefor all reasonable expenses, including attorneys' fees, incurred by him in defending the suit.

§ 11-27-39

Railroads, street or interurban railroads, mining, lighting, power, telephone, and telegraph corporations, and all other corporations, companies, persons and associations of persons, having rights and powers to condemn property may cause to be made such examinations and surveys for their proposed railroads, lines and stations, as may be necessary to the selection of the most advantageous routes and sites, and for such purpose may, by their officers, agents and servants, enter upon the lands and waters of any person, but subject to liability for all damages done thereto.

§ 11-27-41

All companies or associations of persons incorporated or organized for the purpose of improving and developing the water power of rivers and streams for generating, distributing and selling electricity and electro-mechanical power for any purpose for which electricity or electro-mechanical power is now or may hereafter be used or applied, are empowered and authorized to exercise the right of eminent domain, as provided in the chapter on that subject, to condemn and take such lands as may be necessary for the establishment of their reservoirs, ponds, dams, and works, and the right-of-way through all lands between such reservoirs, ponds, dams and works and cities, towns and other points where light, heat or power may be consumed, to place and extend their electric wires and conductors, either underground or on poles overhead and to keep same in repair; provided that such wires and conductors shall be so constructed and placed as not to be dangerous to persons or property and to do as little injury as possible.

§ 11-27-43

(1) All companies or associations of persons incorporated or organized for the purposes set forth in Section 11-27-41 are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands, and to do such clearing as may be reasonably necessary for the proper protection, operation and maintenance of such facilities, provided in all cases such authorization shall meet the requirements of the National Electrical Safety Code. The same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies; or more than is necessary with the convenience of any landowner.

(2) The duty of care owed to the public by owners and operators of public utility facilities located adjacent to a highway, road, street or bridge in this state is satisfied when:

(a) With respect to state highways, the public utility facilities comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.

(b) With respect to roads, streets and bridges that are not part of the state highway system, the public utility facilities located in a public right-of-way comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.

(c) With respect to roads, streets and bridges that are not part of the state highway system, the public utility facilities located on private property comply with the provisions of the applicable edition of the National Electrical Safety Code for structure placement relative to roadways.

(d) With respect to structures, appurtenances, equipment or appliances whose placement or installation is not subject to the provisions of the National Electrical Safety Code, the public utility facilities comply with the provisions of the standards in effect when the structure, appurtenance, equipment or appliance is placed, installed or located adjacent to any highway, road, street or bridge in this state, whether or not a part of the state highway system.

(3)(a) The owner of a road, street, highway or bridge, which is not itself the owner or operator of a public utility, owes no duty to the public regarding or relating to the placement or location of public utility facilities within or appurtenant to the right-of-way of the road, street, highway or bridge.

(b) The owner of private property, which is not itself the owner or operator of a public utility, owes no duty to the public regarding or relating to the placement or location of public utility facilities on or appurtenant to the private property.

(4) For the purpose of this section, the term “public utility facilities” means pipes, mains, conduits, cables, wires, towers, poles and other structures, equipment or appliances, whether publicly or privately owned, installed or placed adjacent to any roadway by an owner or operator of a public utility facility.

§ 11-27-45

All companies, or associations of persons incorporated or organized for the purposes set forth in Section 11-27-41 may acquire a right-of-way across railroads by condemnation by the exercise of such right of eminent domain. If a right-of-way across a railroad has been condemned by a hydroelectric company, as herein defined, the railroad company shall be advised of the manner in which said hydroelectric company proposes to erect its poles and string its wires and conductors, and if the railroad company shall object thereto, the public service commission shall have jurisdiction upon complaint filed with it by the railroad company to enter an order directing how the poles, wires and conductors shall be constructed, and the railroad shall be crossed as ordered and in no other manner.

§ 11-27-47

All companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi, or natural gas districts, incorporated or organized for the purpose of building or constructing pipelines and appliances for the conveying and distribution of oil or gas, including carbon dioxide or other gaseous substances for use in connection with secondary or tertiary recovery projects located within the state of Mississippi for the enhanced recovery of liquid or gaseous hydrocarbons, or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, or for the purpose of constructing, maintaining and operating lines and appliances, for storing, transmitting and distributing water and for transmitting, treating and disposing of sewage, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipelines and appliances along or across highways, waters, railroads, canals and public lands, above or below ground, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands.

The board of supervisors of any county through which any such line may pass shall have the power to regulate, within its respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county. All such companies, associations of persons, municipalities, associations of municipalities, public utility districts authorized by and under the laws of the state of Mississippi or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.

§ 11-27-48

No entity empowered under the laws of the State of Mississippi to exercise the power of eminent domain shall be required, as a condition precedent to exercising such power, to obtain from the applicable regulatory agency, whether the Mississippi Public Service Commission or the Federal Energy Regulatory Commission, or any successor agency, any of the following:

(a) A determination that the entity qualifies as one to which the Legislature has granted the power of eminent domain;

(b) A determination that the entity has complied with state law in invoking the statutory power of eminent domain; or

(c) A certificate of public convenience and necessity for the particular taking in question.

However, this section shall not affect or alter in any way the terms and provisions contained in Sections 77-3-13, 77-3-17 and 77-3-21.

§ 11-27-49

The boards of trustees of an agricultural high school, or agricultural high school and junior college, or any municipal separate school district, and the county board of education, in the case of other school districts, are authorized and empowered to exercise the right of eminent domain, for the purpose of acquiring property to be used for school and playground purposes. However, the rights of eminent domain created hereunder shall not be used for the condemnation of the property of any school or college whatsoever, either private, fraternal, sectarian or denominational.

§ 11-27-51

Nothing in this chapter shall be considered or construed to affect in any way any eminent domain proceeding filed before January 1, 1972 and such proceeding may be prosecuted to final conclusion according to the law in effect on the date such proceeding was filed, but the provisions of Section 11-27-29 relating to direct appeals to the supreme court shall apply to cases pending in any county court on January 1, 1972 wherein no appeal has been taken. Nothing in this chapter shall be construed or shall operate to negate, abridge or alter rights vested pursuant to any prior statutes repealed and reenacted hereby, or to affect judicial construction thereof.

§ 11-27-81

The right of immediate possession pursuant to Sections 11-27-81 through 11-27-89, Mississippi Code of 1972, may be exercised only:

(a) By the State Highway Commission for the acquisition of highway rights-of-way only;

(b) By any county or municipality for the purpose of acquiring rights-of-way to connect existing roads and streets to highways constructed or to be constructed by the State Highway Commission;

(c) By any county or municipality for the purpose of acquiring rights-of-way for widening existing roads and streets of such county or municipality; provided, however, that said rights-of-way shall not displace a property owner from his dwelling or place of business;

(d) By the boards of supervisors of any county of this state for the acquisition of highway or road rights-of-way in connection with a state-aid project designated and approved in accordance with Sections 65-9-1 through 65-9-31, Mississippi Code of 1972;

(e) By any county, municipality or county utility authority created under the Mississippi Gulf Region Utility Act, Section 49-17-701 et seq., for the purpose of acquiring rights-of-way for water, sewer, drainage and other public utility purposes; provided, however, that such acquisition shall not displace a property owner from his dwelling or place of business. A county utility authority should prioritize utilizing easements within ten (10) feet of an existing right-of-way when economically feasible. A county utility authority may not exercise the right to immediate possession under this paragraph after July 1, 2013. Provisions of this paragraph (e) shall not apply to House District 109;

(f) By any county authorized to exercise the power of eminent domain under Section 19-7-41 for the purpose of acquiring land for construction of a federal correctional facility or other federal penal institution;

(g) By the Mississippi Major Economic Impact Authority for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(iv)1 or any facility related to the project as provided in Section 57-75-11(e)(ii);

(h) By the boards of supervisors of any county of this state for the purpose of constructing dams or low-water control structures on lakes or bodies of water under the provisions of Section 19-5-92;

(i) By the board of supervisors of any county of this state for the purpose of acquiring land, property and/or rights-of-way for any project the board of supervisors, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(iv). The board of supervisors of a county may not exercise the right to immediate possession under this paragraph (i) after July 1, 2003;

(j) By a regional economic development alliance created under Section 57-64-1 et seq., for the purpose of acquiring land, property and/or rights-of-way within the project area and necessary for any project such an alliance, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(xxi). An alliance may not exercise the right to immediate possession under this paragraph (j) after July 1, 2012;

(k) By the board of supervisors of any county of this state for the purpose of acquiring or clearing title to real property, property and/or rights-of-way within the project site and necessary for any project such board of supervisors, by a duly adopted resolution, determines to be related to a project as defined in Section 57-75-5(f)(xxii). A county may not exercise the right to immediate possession under this paragraph (k) after July 1, 2012; or

( l ) By any public agency, as defined in Section 57-75-37(7)(a)(ii), for the purpose of acquiring land, property or interests therein, including, but not limited to, easements or rights-of-way for public highways and roads, and for public water utilities, public wastewater and wastewater treatment utilities, public drainage utilities and other public utility purposes in connection with a project defined in Section 57-75-5(f)(xxxiii).

§ 11-27-83

If a plaintiff eligible to claim the right of immediate possession under the provisions of Sections 11-27-81 through 11-27-89 shall desire immediate possession of the property sought to be condemned, other than property devoted to a public use, the plaintiff shall so state in the complaint to condemn property filed with the circuit clerk pursuant to Sections 11-27-1 through 11-27-49, Mississippi Code of 1972, and shall therein make and substantiate the following declaration concerning the governmental project for which the property is being condemned:

That the plaintiff shall suffer irreparable harm and delay by exercising the right to condemn said property through eminent domain proceedings pursuant to Sections 11-27-1 through 11-27-49, as opposed to claiming the right of immediate possession of said property pursuant to Sections 11-27-81 through 11-27-89.

The court, or the judge thereof in vacation, as soon as practicable after being satisfied that service of process has been obtained, shall appoint a disinterested, knowledgeable person qualified to make an appraisal of the property described in the complaint to act as appraiser. The appraiser, after viewing the property, shall return to the clerk of court within ten (10) days after his appointment, his report in triplicate, under oath, which report shall state: (1) the fair market value of the property to be condemned, determined as of the date of the filing of the complaint; (2) the damages, if any, to the remainder if less than the whole is taken, giving a total compensation and damages to be due as determined by the appraiser; and (3) his opinion as to the highest and best use of the property, and a narrative of the facts pertaining to his appraisal.

§ 11-27-85

(1) Upon the filing of the report of the appraiser, the clerk shall within three (3) days mail notice to the parties and the court that the report has been filed. The court shall review the report of the appraiser and shall, after not less than five (5) days' notice thereof to the defendants, enter an order granting to the plaintiff title to the property, less and except all oil, gas and other minerals which may be produced through a well bore, and the right to immediate entry unless, for other cause shown or for uncertainty concerning the immediate public need for such property pursuant to Section 11-27-83, the judge shall determine that such passing of title, and right of entry should be denied. However, no person lawfully occupying real property shall be required to move from a dwelling or to move his business or farm operation without at least ninety (90) days' written notice prior to the date by which such move is required.

(2) Upon entry of said order, the plaintiff may deposit not less than eighty-five percent (85%) of the amount of the compensation and damages as determined by the appraiser with the clerk of the court, and upon so doing, the plaintiff shall be granted title to the property, less and except all oil, gas and other minerals which may be produced through a well bore, and shall have the right to immediate entry to said property. The defendant, or defendants, shall be entitled to receive the amount so paid to the clerk of the court, which shall be disbursed as their interest may appear, pursuant to order of the court.

(3) Notwithstanding any provisions of subsections (1) and (2) of this section to the contrary, title and immediate possession to real property, including oil, gas and other mineral interests, may be granted under this section to (a) any county authorized to exercise the power of eminent domain under Section 19-7-41 for the purpose of acquiring land for construction of a federal correctional facility or other federal penal institution, (b) the Mississippi Major Economic Impact Authority for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(iv)1 and any facility related to such project, (c) a regional economic development alliance for the purpose of acquiring land, property and rights-of-way for a project as defined in Section 57-75-5(f)(xxi) and any facility related to the project; and (d) any county for the purpose of acquiring or clearing title to real property, property and rights-of-way for a project as defined in Section 57-75-5(f)(xxii).

§ 11-27-87

If the plaintiff takes title to and possession of the land condemned pursuant to the order of the court and the amount of compensation as determined upon final disposition of the case is in excess of the amount of the deposit, the plaintiff shall pay interest to the owner at the rate of eight percent (8%) per annum upon the amount of such excess from the date of the filing of the complaint until payment is actually made. If the plaintiff takes title to and possession of the land condemned pursuant to the order of the court and the amount of the compensation as determined upon final disposition of the case is less than the amount of the deposit, the plaintiff shall be entitled to a personal judgment against the owner for the amount of the difference.

§ 11-27-89

The appraiser shall receive as compensation for his services such sum, plus expenses, as the court allows, which shall be taxed as cost in the proceedings. The sum allowed shall be based upon the degree of difficulty and the time required to perform the appraisal, but may not exceed One Thousand Dollars ($1,000.00) unless, in the opinion of the court, special circumstances warrant a greater sum. An order granting a sum greater than One Thousand Dollars ($1,000.00) must describe in detail the special circumstances that warrant payment of a greater sum.

The making of a deposit by the plaintiff or the withdrawal of said deposit by the defendant or defendants shall not prejudice the right of any party to a trial by jury in the special court of eminent domain to determine the fair market value of the property to be condemned and the damages, if any, to the remainder if less than the whole is taken, as provided in Sections 11-27-1 through 11-27-49, Mississippi Code of 1972.

§ 11-27-91

The highway commission of the State of Mississippi is hereby authorized to set up and maintain such special funds and accounts as it may consider necessary and proper to make the deposits and pay the costs as authorized by Sections 11-27-81 through 11-27-89, and to pay such judgments as may be entered and such other costs as may be incidental to the acquisition of property for right-of-way purposes. Disbursement from such special funds shall be by check properly drawn against said fund signed by such personnel as may be duly authorized by the highway commission of the State of Mississippi.

Chapter 29 Sequestration

§ 11-29-1

When a bill is filed in the chancery court in reference to personal property, and affidavit and bond as required therefor is made and filed, the clerk of the court shall issue a writ of sequestration.

§ 11-29-3

Before any writ of sequestration shall issue, the complainant shall make and file an affidavit showing that he has good cause to believe, and does believe, that there is danger of the removal of the property involved in the suit beyond the limits of the state, or of its concealment in the state so as to be beyond the process of the court, or of its transfer so as to defeat the rights of the complainant, and that such removal, concealment, or transfer is about to occur, and, moreover, shall give the bond required by Section 11-29-5.

§ 11-29-5

Before the writ of sequestration shall issue in any case, the complainant shall enter into bond with sufficient sureties, payable to the defendant, in double the value of the property proposed to be seized, to be fixed by the clerk from affidavit, or such evidence as may satisfy him, conditioned to pay all damages which may accrue from the wrongful seizure of the property to be sequestered, which bond shall be filed in the cause.

§ 11-29-7

Writs of sequestration may also be ordered, and the amount of the bond to be given therefor by complainant may be prescribed, by the chancellor or by any judge authorized to grant remedial process of such nature.

§ 11-29-9

The writ of sequestration shall be directed to the sheriff or other proper officer commanding him to seize and take into possession the property in question and to hold the same until the further order of the court or chancellor, or until the defendant from whose possession the same was taken shall enter into bond with sufficient sureties, payable to the complainant in double the value of the property, to be assessed by the officer, conditioned to have the property forthcoming to abide the decree to be made by the court in the cause, or until the said defendant shall enter into bond with sufficient sureties, to be approved by the officer, payable to the complainant, in double the amount of the indebtedness claimed, conditioned for the performance of such final decree as may be entered in the cause. If a forthcoming bond be given, it shall be returned with the writ and filed in the cause, and, in case the property shall not be delivered or forthcoming to abide the decree, the bond shall have the force and effect of a judgment; and execution may issue thereon against all the obligors for the amount of the decree or the value of the property, according to the nature of the case. If a bond in double the debt be given, it shall be returned and filed with the papers in the cause. A bond in double the value of the property shall always be required, except when its value shall greatly exceed the debt and all probable costs.

§ 11-29-11

Should the defendant fail to give bond as above allowed, within five days from the date of seizure, then the complainant at whose instance the property was seized may give such bond and receive the property. In such case, the bond shall be dealt with in all respects as if the defendant had given it and retained the property.

§ 11-29-13

If neither of the parties litigant shall give such bond as allowed within ten days after the seizure, the officer having possession of the property shall sell the same, in the mode prescribed by law for selling property levied upon under writs of fieri facias, if the property be liable to waste or decay, or if subject to extraordinary expense in preserving the same, and hold the proceeds subject to the future orders of the court. If the property be not liable to waste or decay, or be not expensive to keep, it shall be held by such officer, unless the court or the chancellor shall order it to be sold, as may be done when it is thought best to do so. If such property shall be sold, either by the officer seizing it, in the state of case provided for when he may sell it, or by order of the court or chancellor, the proceeds of such sale shall be subject to the orders of the court or chancellor, as to their safe keeping or investment, during the litigation. If the property seized be liable to immediate waste or decay, it shall be sold immediately. If the defendant do not give bond to retain the property within five days from its seizure, and the complainant do not do so within five days after defendant's failure, either party may, before sale of the property, give the required bond and receive the property, or after sale may give such bond and receive the proceeds.

Chapter 31 Attachment in Chancery Against Nonresident, Absent or Absconding Debtors

§ 11-31-1

The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance.

§ 11-31-2

(1) Upon the filing of the bill of complaint, the complainant may apply for an order of attachment by presenting to the chancellor the bill, and an affidavit which shall include the following:

(a) A statement that the action is one described in Section 11-31-1, and is brought against a defendant described in said Section 11-31-1.

(b) A detailed statement of the facts and grounds which entitle the complainant to an order of attachment including a statement of the specific reasons why the complainant's ability to recover the amount of his claim may be endangered or impeded if the order of attachment is not issued.

(c) A statement of the amount the plaintiff seeks to recover.

(d) A statement that the complainant has no information or belief that the claim is discharged in a proceeding under the Federal Bankruptcy Act (11 U.S.C., Section 1, et seq.), or that the prosecution is stayed in a proceeding under the Federal Bankruptcy Act.

(e) A description of the property to be attached under the writ of attachment and a statement that the complainant is informed and believes that such property is not exempt from attachment or seizure under Section 85-3-1.

(f) A listing of other persons known to the complainant who may have an interest in the property sought to be attached together with a description of such interest.

(2) The chancellor shall examine the affidavit and bill of complaint and may, in term time or in vacation, issue an order of attachment with respect to such property under the following conditions:

(a) The chancellor finds that unless the order of attachment is issued, the complainant's ability to recover the amount of his claim may be significantly impaired or impeded.

(b) The chancellor finds that the affidavit establishes a prima facie case demonstrating the complainant's right to recover on his claim against the defendant.

(c) The complainant gives security in an amount satisfactory to the chancellor to abide further orders of the court and to protect the defendant from injury should the action of attachment be judicially determined to have been wrongfully brought.

(3)(a) If such an order of attachment is issued, the defendant shall, upon request, be entitled to an immediate post-seizure hearing to seek dissolution of the order of attachment. Such post-seizure hearing shall have precedence on the docket of the chancery court over all other matters except similar matters previously filed. At such hearing, the chancellor shall order dissolution of the order of attachment unless the complainant establishes by satisfactory proof the grounds upon which the order was issued, including the existence of a claim as described in Section 11-31-1, and the impairment or impediment which a failure to continue the attachment could bring to the complainant's ability to recover the amount of such debt. An appearance by the defendant at the post-seizure hearing shall be considered a special appearance and not a general appearance for purposes of personal jurisdiction over the defendant.

(b) In the alternative, a debtor may regain immediate possession of the property attached by giving security satisfactory to the chancellor in an amount equal to one hundred twenty-five percent (125%) of the value of the property attached or one hundred twenty-five percent (125%) of the amount of the claim, whichever is less.

(c) If the chancellor should determine that the attachment was not brought in good faith, then the chancellor in his discretion may award actual damages (including reasonable attorney's fees) to the defendant.

§ 11-31-3

When a bill shall be filed for an attachment of the effects of a nonresident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of persons in this state to such nonresident, absent or absconding debtor, it shall be sufficient to bind such effects or indebtedness that the order of attachment together with a copy of the bill of complaint and affidavit be served upon the persons possessing such effects or owing such indebtedness.

§ 11-31-5

If the land of the nonresident, absent or absconding debtor be the subject of such suit, and an order of attachment be issued, the order shall be levied by the sheriff or other officer as such writs of law are required to be levied on land, and shall have like effect.

§ 11-31-7

Writs of sequestration may be issued for personal property in such cases as in others.

§ 11-31-9

The nonresident, absent or absconding debtor shall be made a party to such suit by publication of summons as in other cases, and may appear and plead, demur or answer to the bill without giving security. If such debtor fails to appear, the court shall have power to make any necessary orders to restrain the defendants within this state from paying, conveying away or secreting the debts by them owing, or the effects in their hands belonging to, the nonresident, absent or absconding defendant, and may order such debts to be paid or such effects to be delivered to the complainant on his giving security for the return thereof in such manner as the court may direct.

§ 11-31-11

If a decree be rendered in such case without the appearance of the absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made, for restoring of the estate or effects to the absent defendant, on his appearing and answering the bill within two years; and if the complainant shall not give such security, the effects shall remain under the direction of the court, in the hands of a receiver, or otherwise, for such time, and shall then be disposed of as the court may direct.

Chapter 33 Attachment at Law Against Debtors

§ 11-33-1

The remedy by attachment shall apply to all actions or demands founded upon any indebtedness, or for the recovery of damages for the breach of any contract, express or implied, and to actions founded upon any penal statutes.

§ 11-33-3

The creditor may sue out an attachment against one or more of joint debtors or joint and several debtors, whether primarily or secondarily liable, without affecting his rights as against the others.

§ 11-33-5

In case one or more partners shall be liable to attachment on any of the enumerated grounds therefor, save the first, an attachment may be maintained against said partner, or all of the partners, by the partnership creditors. The property of the partnership, in either case, may be levied on and dealt with in all respects as if the grounds of attachment existed as to all the partners. The effects levied upon may be replevied by the partners sued by giving bond as other defendants in attachments, or, if they fail to do so, any partner not sued therein may replevy the same in like manner; but, by doing so, such partner shall thereby become a party defendant to the suit for all purposes, and judgment may be rendered on his bond against the obligors therein as in other attachment cases.

§ 11-33-7

When two or more persons, not residing in this state, are jointly indebted, the writ of attachment may be issued against such debtors, or any of them, by their proper names or by the name of the partnership, or by whatever other names such debtors may be called or known in this state, or against the executors or administrators of them or any or either of them, and may be levied upon the separate or joint estate or both of such debtors, and the lands, tenements, money, goods, chattels, effects, rights and credits of such debtors, or any or either of them, which shall be liable to be seized and taken for the satisfaction of any debt or demand for which an attachment will lie.

§ 11-33-9

The creditor, his agent or attorney, shall make oath before a judge of the supreme court, a judge of a circuit court, or a chancellor, or before a clerk of the circuit court or chancery court or the deputy of such clerk, or any justice court judge, or the mayor of any city, town or village, of the amount of his debt or demand, to the best of his knowledge and belief, and shall also make oath, to the best of his knowledge and belief, to one or more of the following grounds for attachment:

(1) That the defendant is a foreign corporation, or a nonresident of this state; or

(2) That he has removed, or is about to remove, himself or his property out of this state; or

(3) That he so absconds or conceals himself that he cannot be served with a summons; or

(4) That he contracted the debt or incurred the obligation in conducting the business of a ship, steamboat or other watercraft in some of the navigable waters of this state; or

(5) That he has property or rights in action which he conceals, and unjustly refuses to apply to the payment of his debts; or

(6) That he has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with the intent to defraud his creditors; or

(7) That he has converted, or is about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors; or

(8) That he fraudulently contracted the debt or incurred the obligation for which suit has been or is about to be brought; or

(9) That he is buying, selling, or dealing in, or has, within six (6) months next before the suing out of the attachment, directly or indirectly bought, sold, or dealt in future contracts, commonly called “futures”; or

(10) That he is in default for public money, due from him as a principal, to the state, or some county, city, town, or village thereof; or

(11) That defendant is a banker, banking company or corporation, and received deposits of money knowing at the time he or it was insolvent; or has made or published a false or fraudulent statement as to his or its financial condition; or

(12) That a judgment lien under Title 93, Mississippi Code of 1972, has been enrolled against said obligor for nonpayment of an order for support as defined by Section 93-11-101, Mississippi Code of 1972, as amended.

§ 11-33-11

The creditor, his agent, or attorney, shall also give bond, with a sufficient surety or sureties, to be approved by the officer issuing the attachment, in double the sum for which the complaint is made payable to the defendant and conditioned to the effect following, to wit:

“The condition of the above obligation is that, whereas, the above bound __________ prays an attachment against the estate of The said __________ for the sum of __________ dollars, returnable to the __________ court of __________, on the ___ day of __________ next:

“Now, if the plaintiff shall pay to the defendant all such damages as he shall sustain by the wrongful suing out of the attachment, and all costs which may be awarded against the plaintiff in said suit, then the obligation shall be void.”

The bond, together with the affidavit for the attachment, shall be returned by the officer taking the same to the court to which the attachment is returnable.

§ 11-33-13

If the bond purport to be executed by an agent or attorney of the attaching creditor, it shall be prima facie evidence that the agent or attorney had due authority to act.

§ 11-33-15

When it shall appear to the court, on exceptions taken by the defendant or otherwise, that the sureties on any attachment bond are insufficient, the court shall direct the plaintiff to give a new bond with sufficient surety; and such bond shall be as valid, in all respects, as the original bond. If the plaintiff fail to give a new bond within the time required by the court, the attachment shall be dismissed. In all cases where an attachment bond or affidavit may be defective in any respect, or may be lost or destroyed, the plaintiff shall be allowed to file a new affidavit and bond, which shall be, in all respects, as valid and binding as if given at the commencement of the suit.

§ 11-33-17

On affidavit being made and bond given, the officer approving the bond shall issue one or more writs of attachment against the estate of the debtor, directed to the sheriff, or any other proper officer of the county or counties in which the defendant shall have property or debts, and shall be returnable to the next term of the circuit court of any county, or to the justice court of any county, in cases within the jurisdiction of the justice court, in which the defendant or property or debts of the defendant may be found and shall be the leading process of the suit.

§ 11-33-19

The writ shall be in the form or to the effect following, to wit:

“THE STATE OF MISSISSIPPI

“To the sheriff or any constable of __________ county, greeting:

“Whereas, AB (or agent or attorney of AB) hath complained on oath to __________ one of the judges of the Supreme Court (or other officer as the case may be) that CD is justly indebted to the said AB to the amount of __________ and that the said CD is a nonresident, etc. (reciting the affidavit) and bond and security having been given according to the statute:

“We therefore command you that you attach the said CD by his estate, re al and personal, in your county to the value of the said demand and costs of suit, and that you safely keep the same according to law, so as to compel the said CD to appear before the __________ court (or before the court of __________, a justice court judge of __________ county), to be held at __________, in and for the county of __________, on the __________ Monday of __________, to answer the above complaint. And that you summon the said CD, if to be found in your county, to appear and answer accordingly; and have there then this writ, with your proceedings thereon.

“Witness my hand, this ___ day of __________, A.D. __________.”

The writ shall be signed by the officer granting the same or, if issued by a clerk or his deputy, shall be dated, signed and sealed as other writs; and an attachment shall not be quashed or abated for want of form if the substantial matters expressed in the foregoing precedent be contained therein; and on the demand of the plaintiff said writ may embody a garnishment.

§ 11-33-21

The officer granting an attachment may issue duplicate writs to any other county in which the defendant may have property or debts due him, which writs shall be returnable to the court to which the original is returnable, and shall be executed and returned in like manner. Where the attachment has not been executed, or where no property has been found, or not sufficient to satisfy the debt, or where the plaintiff desires to garnish other persons, the clerk of the court to which same is returnable may issue alias writs to the same or other counties without a renewal bond or affidavit.

§ 11-33-23

The officer receiving the writ of attachment shall forthwith levy the same, according to law, on the property of the defendant, real and personal, wherever found; and he shall summon as garnishees, by writs of garnishment, to be issued and served by himself, and duly returned, all persons indebted to the defendant, or having in possession effects belonging to him, to appear at the court to which the attachment is returnable, there to answer as required by law; and he shall seize the books of accounts and other evidence of debt belonging to the defendant and levy on the stock, shares, or interest of the defendant in any corporation, joint-stock company, or copartnership. All the property, debts, choses in action, stock, shares, and interest of the defendant attached, shall be bound by the levy from the date thereof.

§ 11-33-25

The officer serving the attachment shall summon the defendant, if to be found, to appear and answer the action, as in other cases.

§ 11-33-27

If a writ of attachment, returnable to the circuit court, be served by a constable, marshall, or by any person specially appointed for that purpose, the writ of attachment with the return thereon of the action of such person and all property and effects levied on, shall forthwith be delivered to the sheriff of the proper county, who shall be responsible for the property so seized, and shall return the writ to the proper court, with a statement of his action under it; but if the sheriff be a party, the office serving the attachment shall make the return, and so state therein, and likewise retain the property, unless the court, or judge in vacation, make an order for the safekeeping and forthcoming thereof.

§ 11-33-29

Attachments may in all cases be issued and executed on Sunday; and may be executed in any part of the county, by any constable of the county, or by the constable or any police officer of any municipality, in the same manner as the sheriff of the county. In cases of emergency, and when a sheriff or his deputy, or a constable or police officer cannot be had in time, the officer issuing an attachment may appoint some reputable person to execute such attachment; and such officer shall be liable on his bond and individually for the consequence of appointing an insolvent or incompetent person for such service.

§ 11-33-31

The officer serving an attachment shall make a full return thereon of all his proceedings, on or before the return day of the writ. He shall deliver to the court or clerk all bonds which he may have taken pursuant to law.

§ 11-33-33

When a suit shall have been commenced, the plaintiff may obtain an attachment against the defendant, or one or more of them, on making affidavit and giving bond as required in other cases of attachment, which attachment shall be granted, issued, executed, and returned by the same officers; and the like proceedings as far as applicable, shall be had thereon as in other cases. The affidavit, bond, and writ, when returned, shall be filed with the papers in the original suit, which shall not be delayed thereby.

§ 11-33-35

When any creditor whose debt is not due, shall make affidavit of any of the last six grounds for an attachment, or that he has just cause to suspect, and verily believes, that his debtor will remove himself or his effects out of the state before said debt will become payable, with intent to hinder, delay, or defraud his creditors, or that he hath removed, with like intent, leaving property in this state, and shall give bond as in other cases, he may obtain an attachment returnable to the county where the debtor resides, or last resided, or where his property may be found. Such attachment shall be issued, executed, and returned, and the like proceedings had thereon as in other cases of attachment.

§ 11-33-37

When any writ of attachment shall be executed and returned, if the defendant be not summoned, the clerk of the court shall cause a notice to be published once a week for three weeks in some newspaper published within the county, or in some convenient county, and having a circulation in the county in which the suit is pending, stating the issuance of such attachment, at whose suit, against whose estate, for what sum, and in what court the same is pending and that unless the defendant appear on the first day of the next succeeding term of court and plead to said action, judgment will be entered, and the estate attached will be sold. Such publication may be made before or after the return term of court, but in cases of attachment against persons residing out of this state, the creditor, his agent or attorney, shall file with the clerk his affidavit-if the affidavit for the attachment do not contain such statement-showing the post office of the defendant, or that he has made diligent inquiry to ascertain it without success; and if the post office shall be stated, the clerk shall send by mail to such defendant, at his post office, a copy of such notice, and shall make it appear to the court that he has done so, before judgment shall be rendered on publication of notice; and for a failure of duty in this respect, the clerk may be punished as for contempt.

§ 11-33-39

Such publication of notice shall not be necessary if it shall be served on the nonresident defendant, and proof of such service be made as provided for in case of nonresident defendants in chancery; but such proof of service of notice shall be as effectual as if such defendant had been served with a summons.

§ 11-33-41

The notice of the attachment which the clerk is required to cause to be published may be in the following form, to wit:

“The State of Mississippi to __________:

An attachment at the suit of __________ against your estate, for __________ dollars, returnable before the circuit court of __________ County, at __________, Mississippi, has been executed, and is now pending in said court; and unless you appear before said court on the __________ Monday of __________ A.D. __________, and plead to said action, judgment will be entered, and the estate attached will be sold.

, A.D._______________, Clerk.”

§ 11-33-43

If there should be no newspaper published within the county in which the attachment is pending, or in a convenient county, such notice shall be posted at the door of the courthouse of the county, and that shall be instead of publication in a newspaper.

§ 11-33-45

The defendant, at any time before final judgment, may replevy the personal property seized and taken into possession by the officer serving an attachment, by giving to such officer a bond, with sufficient sureties, to be approved by him, payable to the plaintiff, in double the value of such property, conditioned to have said property forthcoming to answer and abide the judgment of the court in said suit, or, in default thereof, to pay and satisfy the judgment to the extent of the value of said property; and on the execution of such bond, the officer shall restore to the defendant the property so replevied, and shall return the bond so taken with the writ of attachment and all proceedings thereon. Such replevin shall not affect the lien of the attachment, or the proceedings thereon, as to any rights, credits, or choses in action of the defendant.

§ 11-33-47

The defendant's replevin bond may be in the following form, viz.:

“We, __________, principal, and __________ and __________ sureties, bind ourselves to pay __________ dollars, unless the said __________ shall have forthcoming to abide the judgment of the circuit court of __________ County, in the suit by attachment therein pending in which said __________ is plaintiff and said __________ is defendant, returnable on the ___ day of __________, __________ a certain __________ levied on by the sheriff of said county by virtue of said attachment, and valued by him at __________, and now restored to said __________; or in default thereof shall satisfy such judgment to the extent of the value of said property, to replevy which this bond is given.

Witness our hands, this the __________ of __________.

_________________________________________________________________________________________________________”

§ 11-33-49

If personal property be seized under an attachment writ, and the defendant, or a claimant, replevy the same, giving bond therefor, he shall not be deprived of the property under a subsequent attachment against the same defendant returnable to the same court to which the first writ is returnable; nor shall but one replevy bond be required. The bond given to the plaintiff in the first attachment shall inure to the benefit of the plaintiff in any subsequent attachment, and judgment may be rendered thereon as if it had been made payable to the plaintiff in the subsequent attachment. The officer shall show in his return on a subsequent attachment writ, what prior attachments in same court have been levied upon the property, if any, and whether the property has been replevied therein, naming the sureties on the bond.

§ 11-33-51

Where the amount demanded in an untried prior attachment, or the judgment, if the same be tried, shall equal or exceed the value of the property replevied, an execution or other process shall not be issued against the sureties on the replevin bond on a judgment in a subsequent attachment, unless the prior attachment fails, or the judgment therein be satisfied otherwise than by the proceeds of the property replevied.

§ 11-33-53

If the plaintiff in a prior attachment fail to enforce his judgment, after ten days written notice to do so by the plaintiff in a subsequent attachment, he shall lose his priority; but where the amount of the prior attachment shall be less than the value of the property, process may issue on the subsequent judgment against the sureties on the replevin bond for the difference between the amount of the prior attachment and the value of the property as shown in the officer's return.

§ 11-33-55

If the value of the property be paid by the sureties, or the property surrendered as provided in the bond, the judgment in the subsequent attachment shall, as to the sureties on the replevin bond, be satisfied.

§ 11-33-57

Execution or other process shall not issue against the sureties on the replevin bond where the property replevied hath been levied upon and replevied in a prior attachment against the same defendant, returnable to another court, unless the amount of the prior attachment and probable costs thereof be first deducted from the value of the property; and in such case execution may issue against the sureties only for the difference.

§ 11-33-59

If any defendant in attachment for a debt due shall, at any time before the return thereof, execute and deliver to the officer serving the same, a bond, with two or more sufficient sureties, to be approved by said officer, payable to the plaintiff in attachment, in a penalty double the amount claimed by the plaintiff, conditioned to pay and satisfy any judgment which may be recovered by the plaintiff in the suit, with all costs, the attachment shall be thereby discharged; and all the property of every kind levied on, attached or seized by virtue thereof, shall be released and restored to such defendant. The bond shall be returned with the attachment; and in case of any recovery by the plaintiff in the suit, judgment shall be entered against the defendant and the sureties in the said bond. After the return of the attachment, the bond herein provided for may be given at any time before final judgment, and may be taken by the sheriff, or officer by whom the attachment was served, in case any of the attached property remains in his hands; otherwise, by the clerk of the court in which the attachment is pending.

§ 11-33-61

The bond to discharge the attachment for a debt due may be in the following form, viz.:

“We, __________ principal, and __________ and __________, as sureties, are held and bound to pay __________ the sum of __________ dollars, unless the said __________ shall satisfy any judgment which may be recovered against him by the said __________ in his attachment suit against the said __________ for __________ dollars, returnable before the circuit court of __________ County, on the ___ day of __________ A.D. __________.”

§ 11-33-63

If a defendant in attachment for a debt not due, shall on or before the return-day thereof, execute and deliver to the officer serving the same, a bond, with two or more sufficient sureties, to be approved by said officers, payable to the plaintiff in attachment, in a penalty double the amount claimed by the plaintiff, conditioned to pay the said debt when it shall become payable and costs of the attachment, the said attachment shall be discharged thereby, and all the property attached shall be released to the defendant. The bond shall be delivered by the officer to the plaintiff. After the return of the attachment, the bond herein provided for may be given at any time before final judgment, and may be taken by the sheriff or officer by whom the attachment was served, in case any of the attached property remains in his hands, or by the clerk of the court in which the attachment is pending.

§ 11-33-65

The bond to discharge attachment for a debt not due may be in the following form, viz.:

“We, __________ principal, and __________ and __________, sureties, are held and bound to pay __________ the sum of __________ dollars, unless __________ shall well and truly pay __________ the sum demanded by him as plaintiff is his attachment suit for a debt not due, the sum of __________, dollars, on or before the ___ day of __________, A.D. __________, and pay the costs of said suit, which is pending in the circuit court of __________ County, Mississippi. This the ___ day of , A.D..”

“”

§ 11-33-67

If the bond or sureties given by the defendant, or any claimant of the property, or garnishee or other person, be insufficient, then the sheriff or other officer shall be subject to the same judgment with the surety in such bond as if he were cosurety thereon. And the court or judge, being satisfied that such bond is not a sufficient security, may order process to seize the property for which the bond was given; and when seized it shall be dealt with as provided by law upon its seizure in the first instance under attachment.

§ 11-33-69

All the provisions of law in relation to third persons claiming property levied on by virtue of fieri facias shall extend and apply to claimants of property levied on by virtue of writs of attachment. The trial of the right of property shall not be had until after judgment in favor of the plaintiff in the attachment suit, and proceedings in garnishment shall be in accordance with the provisions of law on that subject.

§ 11-33-71

When goods and chattels levied upon under an attachment are in danger of immediate waste and decay, or when live stock, or a stock of goods of any kind, is so levied upon, and the same is not replevied by the defendant or claimant, the officer holding them may sell them as like property is required to be sold under execution. The proceeds of such sale shall be held by the officer to abide the result of the suit, unless replevied. The owner of such goods may replevy the same, as in other cases, at any time before sale, and after sale, the money. If the term of court to which the writ of attachment is returnable commences within fifteen days of the levy, none of the property, except such as may be in danger of immediate waste and decay, shall be sold until after the court is held; and if the cause be continued, the property may then be sold.

§ 11-33-73

When personal property levied upon under an attachment shall not be subject to sale under the provisions of Section 11-33-71, and the same shall not be replevied by the defendant or claimant within ten days after the levy, the judge or the justice of the peace in whose court the suit may be pending, on the application of any party to the suit, and upon ten days' notice to all other parties to the suit of the time and place of the hearing, may make an order directing the officer having custody of said property to sell the same, as provided by law for such sales, under execution, and the proceeds of said sale shall be held by such officer to abide the result of the suit unless replevied by the defendant or claimant.

§ 11-33-75

If the defendant dies after service of the writ of attachment, the action shall not thereby be abated, but may be prosecuted to judgment, sale, transfer, and final determination as if the defendant's death had not occurred; and all proceedings and conveyances in such case shall be as valid and effectual in law as if had and made in the lifetime of defendant.

§ 11-33-77

The declaration may be filed on or before the return day of the attachment or before an order of dismissal be taken; and the defendant shall plead thereto as in other cases.

§ 11-33-79

If the defendant shall not appear and plead to the action, in pursuance of notice, the court, as in other cases, shall give judgment against him by default, and award a writ of inquiry if necessary; but on such judgment by default, unless granted on the service of summons executed in this state, no execution shall issue except against the property on which the attachment has been served, or against a garnishee who shall have money or property in his hands belonging to the defendant.

§ 11-33-81

The defendant in attachment may appear, without replevying the property attached, and defend the suit as in other actions for the recovery of money. In case the defendant shall have been personally summoned, or shall appear and plead to the action, the judgment therein shall have the same force and effect against the person and property of the defendant as in other actions where a summons has been personally served on him. Such appearance shall not vacate or affect any bond taken hereunder, nor discharge any garnishee, nor affect any lien created by the attachment; but the proceedings in respect to any property attached, or any garnishee summoned, shall be the same as if final judgment had been entered by default.

§ 11-33-83

The defendant in attachment may, as a defense in his answer, traverse the truth of the alleged grounds upon which the attachment was sued out. Upon such defense being filed, the court, in its discretion, upon motion of either or any party, may order a jury to be empaneled to try the issue, or it may submit such issue to the jury empaneled to try the case on its merits. If the jury shall find for the defendant, it shall assess damages against the plaintiff for wrongfully suing out the same.

§ 11-33-85

On the trial of the issue of the truth of the alleged attachment grounds, the defendant may introduce evidence as to the actual damages, if any, which the issuance of the attachment has occasioned him; but the defendant, when he files his answer setting up the defense traversing the truth of the alleged attachment grounds, shall file therewith written notice of what damages he will insist upon at the trial. If the issue be decided for the defendant, he shall have judgment that the attachment be discharged and against plaintiff and the sureties in his attachment bond, for the damages assessed by the jury and the costs of suit; and the jury may add to the actual damages found a reasonable sum as an attorney's fee for defending the issue; but the judgment against the sureties in the attachment bond shall not exceed the penalty thereof.

§ 11-33-87

If the issue on the defense traversing the truth of the alleged attachment grounds be decided for plaintiff, the defendant shall be permitted to go on to trial of the merits upon his answer as a whole.

§ 11-33-89

If the personal property attached, or any part thereof, shall have been replevied by the defendant, the court or jury trying the issue between the parties, if it find for the plaintiff, shall assess the value of the property so replevied by the defendant, as well as the debt or damages due the plaintiff. If the value of the property shall equal the amount found due the plaintiff, judgment shall be entered against the defendant and his sureties in such replevin bond, for the amount of said value. If the value of the property be less than the amount found due the plaintiff, judgment shall be entered against the defendant for the amount of the verdict, and against the sureties in his replevin bond for the value of the property so replevied. If judgment by default shall be entered in such case against the defendant, an inquiry shall be awarded to assess the value of the property so replevied; and on the execution thereof judgment shall be rendered as above provided. In all cases, the judgment against the sureties of the defendant shall be satisfied and discharged by the delivery to the sheriff of the property replevied within ten days after execution on such judgment shall have come to his hands; and the sheriff shall sell the property so delivered to him, and apply the proceeds to the payment of the execution.

§ 11-33-91

The plaintiff may dismiss his attachment, but defendant shall have a jury impanelled forthwith to assess the damages sustained by reason of suing out the attachment.

§ 11-33-93

In determining the amount for which judgment shall be rendered on the merits in favor of plaintiff whose debt is not due, interest shall not be computed on the principal for a time beyond the rendition of the judgment; and if the debt do not bear interest until a future day, the principal shall be discounted for the time to elapse before interest begins, at the rate at which the debt will bear interest. Such judgments shall be enforced as in other cases.

§ 11-33-95

The judgment in favor of the defendant against the plaintiff for the damages assessed and the costs may be pleaded by the defendant as a payment in the same action, or in any other suit on the same cause of action on which the attachment was sued out. An execution shall not be issued on such judgment until after the dismissal of the action or final judgment on the merits. If the action be dismissed, or if, upon a trial on the merits, judgment be in favor of the defendant, without his having obtained the benefit of the judgment in his favor for damages and costs, he shall have execution of said judgment in his favor. If the plaintiff recover in the trial on the merits, and on such trial the defendant did not avail of his judgment against the plaintiff for damages and costs, the greater recovery shall be credited with the sum of the smaller, and judgment shall be rendered by the court in favor of the party to whom the difference may be due.

§ 11-33-97

If the issue on the defense traversing the truth of the alleged attachment grounds be found for the defendant, the attachment shall be thereby discharged, and all property seized under it, and all persons summoned as garnishees, shall be released from it; but the action, unless dismissed by the plaintiff, shall be proceeded with in all respects as if it had been an ordinary action in its commencement; and the costs accruing in it, after the trial of the issue on the said defense, shall abide the result of such action.

§ 11-33-99

If the plaintiff, within ten days after the expiration of the term of the court at which judgment is rendered discharging his attachment, shall perfect an appeal from such judgment, the attachment shall not be discharged, nor garnishees nor property released therefrom, by such judgment; but such appeal shall preserve the attachment in full force, to await the result of the appeal.

§ 11-33-101

Any creditor of the defendant in attachment, upon filing a petition under oath, averring that he is a creditor, and that the grounds of attachment alleged are untrue, or that the attachment was sued out by collusion between the plaintiff and the defendant, or that the debt claimed by the defendant is fictitious or simulated, in whole or in part, or any other fact showing fraud or collusion in suing out the attachment, may intervene and make defense, and in such case the facts stated in the petition shall be tried; but the intervening creditor must give bond, payable to the plaintiff, in such penalty and with such sureties as the court or judge may prescribe, conditioned to pay the costs of the trial in case the issue be found against him.

§ 11-33-103

But one trial shall be allowed under the provisions of Section 11-33-101, unless the petitions of the intervenors present different issues; and if the judgment be in favor of the intervening creditor, he shall recover of the plaintiff and his sureties the costs of suit, and the attachment shall be dissolved.

§ 11-33-105

Justice court judges shall have cognizance of attachments in all cases where the amount in controversy is within their jurisdiction. In such case, the notice to a defendant not found shall require the appearance of the defendant at some reasonable time, to be fixed by the judge, not less than one (1) month after the return day of the attachment, and shall be transmitted by such judge by mail to the defendant at his post office, when stated. Such notice shall not be published in a newspaper, but shall be posted in three (3) public places, where they will be likely to be seen by persons in the county of the justice court judge, three (3) weeks before the time for the appearance of the defendant. Such mailing and posting, or posting alone when the post office is not stated, shall be in lieu of publication in a newspaper in attachments before a justice court judge, and shall authorize such further proceedings as are provided for in other cases of publication.

§ 11-33-107

On the return of an attachment before a justice of the peace, the defendant may file an affidavit, or plea sworn to, traversing the grounds on which the attachment was sued out, and the justice shall hear all evidence adduced by either party, as to whether said attachment was wrongfully sued out or not; and, if the same was wrongfully sued out, he shall dismiss the attachment, with costs, and shall give judgment against the plaintiff for such damages as the defendant may have sustained by the wrongful suing out of said attachment, and shall proceed to hear the case on the merits.

Chapter 35 Garnishment

§ 11-35-1

On the suggestion in writing by the plaintiff in a judgment or decree in any court upon which an execution may be issued, that any person, either natural or artificial, including the state, any county, municipality, school district, board or other political subdivision thereof, is indebted to the defendant therein, or has effects or property of the defendant in his, her or its possession, or knows of some other person who is indebted to the defendant, or who has effects or property of the defendant in his, her or its possession, it shall be the duty of the clerk of such court to issue a writ of garnishment, directed to the sheriff or proper officer, commanding him to summon such person, the state, county, municipality, school district, board or other political subdivision thereof, as the case may be, as garnishee to appear at the term of court to which the writs of garnishment may be returnable, to answer accordingly.

§ 11-35-3

If, at the time of issuing a writ of attachment, or thereafter before the attachment issue has been tried, the attaching creditor shall suggest that any person is indebted to the debtor, or has property of the debtor in his hands, or knows of any other person so indebted or who has effects or property of the debtor in his hands, the officer issuing the writ of attachment shall insert therein a command to summon such person to appear on the return day of the attachment, to answer accordingly.

§ 11-35-5

The writ of garnishment, when issued on a judgment or decree, may be in the following form, to wit:

“THE STATE OF MISSISSIPPI.

“To any lawful officer of __________ county:

“Whereas, __________ recovered a judgment in __________ court of __________ county, on the ___ day __________, A.D. __________, for the sum of __________ dollars and costs, against __________, and the judgment has not been satisfied, and said __________ having made the proper suggestion for a writ of garnishment against __________:

“We therefore command you to summon said __________ to appear in said court, at __________, on the ___ day of __________, A.D. __________, then and there to answer, on oath in writing, whether (here copy in full every particular that a garnishee is required to answer). And have you then and there this writ, with your proceedings indorsed thereon.

“Witness my signature (and if by a clerk, add an official seal), this ___ day of __________, A.D. __________.”

“”

The writ must be signed by the officer who issues it, and his official character should be written after his name.

§ 11-35-7

When the sheriff issues a writ of garnishment in executing an attachment, it may be in the following form:

“THE STATE OF MISSISSIPPI.

“To __________, garnishee:

“Whereas, the undersigned holds an attachment writ against __________, as defendant at the suit of __________, as plaintiff, and it appearing that you should be summoned as garnishee:

“We therefore command you to appear in the __________ court, at __________, on the ___ day of __________, A.D. __________, being the return day of said attachment, then and there in said attachment suit to answer (here copy in full every particular that a garnishee is required to answer). Herein fail not, under penalty of having judgment rendered against you for the whole amount of plaintiff's demand.

“Witness my signature, this ___ day of __________, A.D. __________.

“”

The original must be returned to the court properly indorsed with the mode of service and the defendant served, as in other cases.

§ 11-35-9

A writ of garnishment, whether issued in a case of attachment or on a judgment or decree, shall be served as a summons is required by law to be executed; but if the garnishee be not personally served, and make default, judgment nisi shall be rendered against him, and a scire facias awarded, returnable to the next term, unless the court be satisfied that the garnishee can be personally served at once, in which case it may be returnable instanter.

§ 11-35-11

Service of writs of garnishment upon judgments against any officer or employee of the state, a county, a municipality, any state institution, board, commission or authority shall be effected as follows:

(1) In a case of garnishment against any employee of a state department, agency, board, commission, institution or other authority, the writ shall be served upon the department head, president of the institution or chairman or other presiding officer thereof. In case of a garnishment against a state officer, departmental head, president of an institution, director of a board or other head of any other agency or commission of the state government, the writ shall be served upon the state auditor. In case of a garnishment against the state auditor, the writ shall be served upon the state treasurer, this being the only case in which the state treasurer is served with a writ of garnishment except where a garnishment is against an employee of the state treasurer.

(2) In case of a garnishment against any person who is now or may hereafter be a salaried officer or employee of a county, the writ shall be served upon the clerk of the chancery court of the county, except that in case of garnishment upon a judgment against such clerk the writ shall be served upon the sheriff of the county.

(3) In case of a garnishment against any person who is now or may hereafter be a salaried officer or employee of a county school district or a municipal separate school district, the writ shall be served upon the superintendent of the respective school district, except in the event the garnishment be against such superintendent the writ shall be served upon the president of the board of education or the board of trustees.

(4) In case of a garnishment against an officer or employee of a municipality, the writ shall be served upon the city, town or village clerk.

§ 11-35-13

In no case shall judgment be rendered against the state, a county, a municipality or any state institution, board, commission or authority for default in failing to make answer to a writ served hereunder.

§ 11-35-15

Any person suggesting and obtaining a writ of garnishment upon a judgment against any person who is an officer or employee of the state shall advance and pay the sum of two dollars which shall be paid by the officer serving the writ of garnishment to the state officer upon whom such writ is directed to be served and such payment shall be retained by such officer as compensation for the additional duty imposed upon him by Sections 11-35-1 and 11-35-11 through 11-35-21, in the capacity of such officer as special agent of the state for service of garnishment writs.

§ 11-35-17

Any person suggesting and obtaining a writ of garnishment to issue against any officer or employee of a county, municipality or any state institution, board, commission or authority shall advance and pay the sum of one dollar which shall be paid to the officer upon whom such writ is directed to be served at the time of service of the writ and such sum shall be retained by such officer as compensation for answering the writ of garnishment.

§ 11-35-19

Any person upon whom, in his representative capacity as above set out in Section 11-35-11, there shall be served a writ of garnishment under the provisions of Sections 11-35-1 and 11-35-11 through 11-35-21 shall, if he shall fail or refuse to answer such writ as provided by law in other cases of writs of garnishment and answers thereto forfeit and pay to the plaintiff in the judgment upon which the writ has issued the sum of twenty-five dollars, the same to be recovered in any court of competent jurisdiction.

§ 11-35-21

Service of writ of garnishment as provided for in Section 11-35-11 shall be effective to bind funds in the hands of the garnishee as in other cases and upon judgment rendered upon the garnishment issue in any court the funds bound, or so much thereof as shall be necessary to pay the judgment upon which garnishment issued and all cost accrued, shall be paid over to the court in which such judgment was rendered and for such payment a properly certified copy of the said judgment in the garnishment proceeding and a certified copy of the bill of costs in such proceedings shall be sufficient warrant and any payment so made shall be charged against the salary or wages of the judgment debtor in the judgment on which writ of garnishment issued.

§ 11-35-23

(1)(a) Except for wages, salary or other compensation, all property in the hands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment shall be bound by and subject to the lien of the judgment, decree or attachment on which the writ shall have been issued. If the garnishee shall surrender such property to the sheriff or other officer serving the writ, the officer shall receive the same and, in case the garnishment issued on a judgment or decree, shall make sale thereof as if levied on by virtue of an execution, and return the money arising therefrom to satisfy the judgment; and if the garnishment issued on an attachment, the officer shall dispose of the property as if it were levied upon by a writ of attachment. And any indebtedness of the garnishee to the defendant, except for wages, salary or other compensation, shall be bound from the time of the service of the writ of garnishment, and be appropriable to the satisfaction of the judgment or decree, or liable to be condemned in the attachment.

(b) If the garnishee is a bank or other financial institution and its indebtedness to the defendant consists of funds that the defendant has on deposit with the bank or other financial institution at the time of service of the writ of garnishment, then the garnishee shall be held to account for only such funds on deposit between the time of service of the writ of garnishment and the time of service of its answer to such writ, and the garnishee shall have no obligation to account for additional deposits accruing after the time of service of its answer. If the bank or other financial institution is not indebted to the defendant at the time of service of the writ of garnishment or does not have possession of property of the defendant at the time of service of such writ, then the bank or other financial institution may serve its answer and thereafter shall not be held to account for any indebtedness that arises subsequent to service of its answer or property that may come into its hands subsequent to such service. The financial institution may submit its Answer of Indebtedness at any time within the thirty (30) days allowed for response.

(2) The court issuing any writ of garnishment shall show thereon the amount of the claim of the plaintiff and the court costs in the proceedings and should at any time during the pendency of said proceedings in the court a judgment be rendered for a different amount, then the court shall notify the garnishee of the correct amount due by the defendant under said writ.

(3)(a) Except for judgments, liens, attachments, fees or charges owed to the state or its political subdivisions; wages, salary or other compensation in the hands of the garnishee belonging to the defendant at the time of the service of the writ of garnishment shall not be bound by nor subject to the lien of the judgment, decree or attachment on which the writ shall have been issued when the writ of garnishment is issued on a judgment based upon a claim or debt that is less than One Hundred Dollars ($100.00), excluding court costs.

(b) If the garnishee be indebted or shall become indebted to the defendant for wages, salary or other compensation during the first thirty (30) days after service of a proper writ of garnishment, the garnishee shall pay over to the employee all of such indebtedness, and thereafter, the garnishee shall retain and the writ shall bind the nonexempt percentage of disposable earnings, as provided by Section 85-3-4, for such period of time as is necessary to accumulate a sum equal to the amount shown on the writ as due, even if such period of time extends beyond the return day of the writ. Unless the court otherwise authorizes the garnishee to make earlier payments or releases and except as otherwise provided in this section, the garnishee shall retain all sums collected pursuant to the writ and make only one (1) payment into court at such time as the total amount shown due on the writ has been accumulated, provided that, at least one (1) payment per year shall be made to the court of the amount that has been withheld during the preceding year. Should the employment of the defendant for any reason be terminated with the garnishee, then the garnishee shall not later than fifteen (15) days after the termination of such employment, report such termination to the court and pay into the court all sums as have been withheld from the defendant's disposable earnings. If the plaintiff in garnishment contest the answer of the garnishee, as now provided by law in such cases, and proves to the court the deficiency or untruth of the garnishee's answer, then the court shall render judgment against the garnishee for such amount as would have been subject to the writ had the said sum not been released to the defendant; provided, however, any garnishee who files a timely and complete answer shall not be liable for any error made in good faith in determining or withholding the amount of wages, salary or other compensation of a defendant which are subject to the writ.

(4) Wages, salaries or other compensation as used in this section shall mean wages, salaries, commissions, bonuses or other compensation paid for employment purposes only.

(5) The circuit clerk may, in his or her discretion, spread on the minutes of the county or circuit court, as the case may be, an instruction that all garnishment defendants shall send all garnishment monies to the attorney of record or in the case where there is more than one (1) attorney of record, then to the first-named attorney of record, and not to the clerk. The payment schedule shall be the same as subsection (3)(b) of this section.

(6) All payments made pursuant to a garnishment issued out of the justice court shall be made directly to the plaintiff or to the plaintiff's attorney as indicated by the plaintiff in his or her suggestion for writ of garnishment. The employer shall notify the court and the plaintiff or the plaintiff's attorney when a judgment is satisfied or when the employee is no longer employed by the employer.

(7) If the plaintiff in a garnishment is the Department of Employment Security, the garnishee shall make monthly payments to the department until such time as the total amount shown due on the writ has been accumulated.

§ 11-35-24

(1) Where more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served. In the event more than one (1) garnishment on an employee is received on the same day, the writ of garnishment which is the smallest amount shall be satisfied first. However, in every case, garnishments issued pursuant to court ordered child support shall have first priority, even if previous garnishments are in effect or pending.

(2) Any such conflicting or subsequent garnishments on an employee of the garnishee shall be returned to the court issuing such writ of garnishment with a statement by the garnishee that a previous garnishment is in effect. Such statement shall operate as a stay of the subsequent garnishment until satisfaction of any prior garnishments has been made.

(3) Upon satisfaction of the writ of garnishment in progress, the garnishee shall immediately begin collection of such writ of garnishment with next priority.

(4) Good faith compliance with this section shall release the garnishee from any liability for failure of compliance with this section.

§ 11-35-25

(1) Every person duly summoned as a garnishee shall answer on oath as to the following particulars, viz.:

(a) Whether he be indebted to the defendant or were so indebted at the time of the service of the writ on him, or have at any time since been so indebted; and, if so indebted, in what sum, whether due or not, and when due or to become due, and how the debt is evidenced, and what interest it bears;

(b) What effects of the defendant he has or had at the time of the service of the writ on him, or has had since, in his possession or under his control;

(c) Whether he knows or believes that any other person is indebted to the defendant; and, if so, whom, and in what amount, and where he resides; and

(d) Whether he knows or believes that any other person has effects of the defendant in his possession or under his control; and, if so, whom, and where he resides.

(2) In addition to answering as to the particulars in subsection (1) of this section, each person duly summoned as a garnishee in any case in which he be indebted to the defendant for wages, salary or other compensation shall answer on oath as to whether the defendant is an employee of the garnishee and, if so, the time interval between pay periods of the defendant including any specific day of a week or month on which such defendant is regularly paid.

§ 11-35-27

Except as otherwise provided in Section 11-35-23, garnishees shall, in all cases in the circuit or chancery court, answer on the first day of the return term, and, in the courts of justices of the peace, they shall answer by noon on the return day of the writ, unless the court, for cause shown, shall grant further time; and, if upon the answer of any garnishee, it appear that there is any estate of the defendant in the hands of any person not summoned, an alias writ may at once be issued, to be levied on the property in the hands of such person, or he may be summoned as garnishee.

§ 11-35-29

If the garnishee admits indebtedness to or the possession of effects of the defendant, and he have not paid or delivered the same to the sheriff, judgment may be rendered against him in favor of the plaintiff for the amount of the debt admitted, or for the property, or the value thereof (to be assessed if necessary), admitted to be in his possession; but the judgment shall not be for a greater sum than the plaintiff's demand.

§ 11-35-31

If a garnishee, personally summoned, shall fail to answer as required by law, or if a scire facias on a judgment nisi be executed on him, and he fail to show cause for vacating it, the court shall enter a judgment against him for the amount of plaintiff's demand; and execution shall issue thereon, provided, however, that the garnishee may suspend the execution by filing a sworn declaration in said court showing the property and effects in his possession belonging to the debtor, and his indebtedness to the debtor, if any, or showing that there be none, if that be true; and by such act and upon a hearing thereon, the garnishee shall limit his liability to the extent of such property and effects in his hands, and such indebtedness due by him to the debtor, plus court costs and reasonable attorney's fees of the judgment creditor in said garnishment action.

§ 11-35-33

Any garnishee who answers admitting an indebtedness, or the possession of property due or belonging to the defendant, may show by his answer that he is advised and believes that the defendant does or will claim the debt or property, or some part thereof, as exempt from garnishment, levy, or sale. Upon the filing of such answer, the clerk or justice of the peace shall issue a summons or make publication, if defendant be shown by oath to be absent from the state, for the defendant, notifying him of the garnishment and the answer, and requiring him to assert his right to the exemption. Proceedings against the garnishee shall be stayed until the question of the debtor's right to the exemption be determined. If the defendant fail to appear, judgment by default may be taken against him, adjudging that he is not entitled to the property or debt as exempt; but if he appear, the court shall, on his motion, cause an issue to be made up and tried between him and the plaintiff.

§ 11-35-35

If a garnishee admit an indebtedness not then due, execution shall be stayed until its maturity; and if he admit the possession of goods or chattels of the defendant, such goods or chattels shall be delivered to the sheriff; but, in attachment cases, the garnishee may replevy the property by giving a bond for the same, as the defendant in attachment may do, and subject to the same proceedings and liabilities.

§ 11-35-37

If a garnishee shall pay over or deliver, in pursuance of the judgment or process of the court, any money or property belonging to the defendant, before notice of sale, assignment, or transfer thereof by the defendant to any other person, such garnishee shall not thereafter be liable for the debt or property to the vendee or assignee thereof.

§ 11-35-39

The garnishee may plead that the judgment under which the writ of garnishment was issued is void, and if his plea be sustained, no judgment shall be rendered against him.

§ 11-35-41

When a garnishee, by his answer or by affidavit at any time before final judgment against him, or after such judgment if he had no such notice before the judgment was rendered, shall show that he has been notified that another person claims title to or an interest in the debt or property, which has been admitted by him, or found on a trial to be due or to be in his possession, the court shall suspend all further proceedings, and cause a summons to issue or publication to be made for the person so claiming to appear and contest with the plaintiff the right to such money, debt, or property. In such case, if the answer admit an indebtedness, and the garnishee pay the money into court, he shall thereupon be discharged from liability to either party for the sum so paid. And whenever such garnishee shall by said answer or affidavit show that he has been notified that another person claims title to or interest in such debt or property, it shall be lawful for such third person of his own motion to come in and claim the debt or property, and the claim shall be tried as other claimant's issues are tried whether summons or publication has been made to bring him in or not.

§ 11-35-43

If the claimant, being duly summoned, fail to appear, the court shall adjudge the money, debt, or property to the plaintiff. If he appear, he shall propound his claim to the money, debt, or property in writing under oath; and the plaintiff may take issue thereon, and the same shall be tried and determined as other issues. If the issue be found in favor of the plaintiff, judgment shall be rendered for him against the garnishee, and also for the costs of the interpleader against the claimant; but if the issue be found for the claimant, judgment shall be rendered in his favor against the garnishee, and against the plaintiff for the costs. Where the garnishee has paid money into court, the judgment shall direct its payment to the party entitled thereto, and a judgment therefor shall not go against the garnishee.

§ 11-35-45

If the plaintiff believe that the answer of the garnishee is untrue, or that it is not a full discovery as to the debt due by the garnishee, or as to the property in his possession belonging to the defendant, he shall, at the term when the answer is filed, unless the court grant further time, contest the same, in writing, specifying in what particular he believes the answer to be incorrect. Thereupon, the court shall try the issue at once, unless cause be shown for a continuance, as to the truth of the answer, and shall render judgment upon the facts found, when in plaintiff's favor, as if they had been admitted by the answer, but if the answer be found correct, the garnishee shall have judgment for costs against the plaintiff.

§ 11-35-47

The defendant may contest, in writing, the answer of the garnishee, and may allege that the garnishee is indebted to him in a larger sum than he has admitted, or that he holds property of his not admitted by the answer, and shall specify in what particular the answer is untrue or defective. Thereupon an issue shall be made up and tried; but the plaintiff may take judgment for the sum admitted by the garnishee, or for the condemnation of the property admitted to be in his hands, notwithstanding the contest.

§ 11-35-49

Writs of garnishment, in all cases, may be issued to any county; but if the garnishee whose answer is contested, shall not be a resident of the county, then, upon an issue being made upon his answer, the venue of the trial of the issue may be changed, on his application, to the county of his residence. The court in which the issue is tried shall cause the facts found to be certified and returned with the issue to the court from which the writ issued, and judgment shall be entered thereupon as if the issue had there been tried.

§ 11-35-51

If the issue in any case be found against the garnishee, judgment shall be rendered against him for the amount of the debt or money or property in his hands, which judgment shall be in favor of the plaintiff, if necessary to satisfy his judgment or claim against the defendant, or in favor of the defendant, if the judgment of the plaintiff have been satisfied, or for so much thereof as may remain after satisfying said judgment.

§ 11-35-53

If the personal property levied on under an attachment, or any part thereof, shall have been left in the hands of the garnishee on his giving bond as prescribed, the court or jury trying the issue between the plaintiff and garnishee, if it find for the plaintiff, shall assess the value of the property left in the hands of the garnishee. If the value of the property equal or exceed the amount due the plaintiff, judgment shall be entered against the garnishee and his sureties on his replevin bond for the sum due the plaintiff. If the value of the property be less than the amount due the plaintiff, judgment shall be entered against the garnishee and his sureties for the value of the property so replevied or left in his hands. If judgment by default shall be rendered against the garnishee, the value of the property so replevied or left in his hands shall be assessed, and judgment shall be entered as above provided. In all cases the judgment against the garnishee and his sureties shall be satisfied and discharged by the delivery to the sheriff of the property replevied or left in his hands within ten days after execution on the judgment shall have come to the hands of the sheriff, and he shall sell the property so delivered to him, and apply the proceeds to the payment of the execution.

§ 11-35-55

Final judgment upon a garnishment shall not go against a surety or accommodation indorser until judgment be rendered against the principal and the cosureties or prior indorsers who may be liable to judgment, if they be residents of the state.

§ 11-35-57

Executors and administrators may be garnished for a debt due by their testator or intestate to the defendant; but judgment shall not be entered in such case against an executor or administrator until the lapse of six months after the grant of letters; and they may be garnished as having effects due to legatees or distributees; but judgment shall not be rendered against them in such case, except with their consent, until after a final settlement of the estate.

§ 11-35-59

If the garnishee dies, like proceedings may be had as provided for in case of the death of a party to an action.

§ 11-35-61

The garnishee shall be allowed for his attendance, out of the debts or effects in his possession, or against the plaintiff in attachment, judgment, or decree in case there be no debts or effects in his possession, provided he shall put in his answer within the time prescribed by law, the pay and mileage of a juror, and, in exceptional cases rendering it proper, the court may allow the garnishee reasonable compensation additional to the foregoing and to be obtained in the same way.

Chapter 37 Replevin

§ 11-37-101

If any person, his agent or attorney, shall file a complaint under oath setting forth:

(a) A description of any personal property;

(b) The value thereof, giving the value of each separate article and the value of the total of all articles;

(c) The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all contracts and documents evidencing his claim;

(d) That the property is in the possession of the defendant; and

(e) That the defendant wrongfully took and detains or wrongfully detains the same; and shall present such pleadings to a justice of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice court judge or other duly elected judge, such justice or judge may issue an order directing the clerk of such court to issue a writ of replevin for the seizure of the property described in said complaint, upon the plaintiff posting a good and valid replevin bond in favor of the defendant, for double the value of the property as alleged in the complaint, conditioned to pay any damages which may arise from the wrongful seizure of said property by the plaintiff. The said writ shall be directed to the sheriff or other lawful officer, returnable as a summons before the proper circuit or county court where the value of the property, as alleged in the complaint, exceeds the jurisdictional amount of the justice court, or to the circuit or county court or the proper justice court if the value shall not exceed such amount. The complaint along with the order of the court, the writ of replevin with the officer's return thereon, and the bond of the plaintiff shall be filed in the proper court at once. Writs of replevin may be made returnable to the proper court of another county where the property may be found.

§ 11-37-103

Should the judge to whom such pleadings are presented determine that the property in question is not properly valued, then he may, in his order, require a bond in an amount double the value of the property in question, as determined by such judge.

§ 11-37-105

The plaintiff's bond in replevin shall be in the following form, to-wit:

“Be it known, that we, __________, the principal and plaintiff, and __________ and __________, sureties, agree and bind ourselves to pay to , the defendant, the sum of $, unless the said principal and plaintiff shall prosecute to effect his replevin action against the defendant for possession of (here describe the property in detail), now to be seized and delivered to the plaintiff; and shall, without delay, return said property to the defendant, if return thereof be adjudged, and shall pay to the defendant such damages as he may sustain by the wrongful suing out of a writ of replevin, and such costs as may be awarded against the plaintiff, and save harmless the officer who seizes and delivers said property to the plaintiff herein; otherwise to be of no force and effect.

WITNESS OUR SIGNATURES, this ___ day of _______, 2.

The above bond is approved by me this ___ day of _______, 2.

__________”

§ 11-37-107

The action of replevin may be instituted in the circuit or county court of a county or in the justice court of a county in which the defendant, or one (1) of several defendants, or property, or some of the property, may be found, and all proper process may be issued to other counties.

§ 11-37-109

The writ of replevin shall command the sheriff, or other lawful officer, to immediately seize and take possession of the property described in the writ and deliver it to the plaintiff after two (2) days, unless bonded by the defendant, and summon the defendant to appear before the court shown in the writ, in termtime or in vacation, and to answer to the action of the plaintiff.

§ 11-37-111

The writ of replevin shall be in the following form, to-wit:

“State of Mississippi

County of __________

To the sheriff of any lawful officer of __________ County:

We command you to immediately seize and take into your possession (here describe the property as shown in the declaration) alleged by __________, the plaintiff, to be wrongfully detained by __________, the defendant, and to deliver said property to the plaintiff unless bonded by the defendant; and to summon the said defendant to appear before the __________ court of __________ County, Mississippi, at __________ o'clock __________.M., on the ___ day of _______, 2, to answer the suit of the plaintiff for the wrongful detention of said property, and have then and there this writ.

WITNESS MY HAND, this ___ day of _______, 2.

__________”

§ 11-37-113

The writ may be executed by seizing the property described therein and summoning the defendant as in other civil actions, with a copy of the declaration and exhibits attached thereto to be attached to said writ, so as to fully inform the defendant as to the claim being made against him.

§ 11-37-115

If the defendant shall, within two (2) days from the seizure of the property, enter into bond, with sufficient sureties, to be approved by the officer or the court, payable to the plaintiff, in double the value of the property, conditioned that it shall be forthcoming to satisfy the judgment of the court, the property shall be restored to him pending final judgment.

§ 11-37-117

The officer's return on such writ may be in the following form, to-wit:

“Executed the within writ, by taking possession of (here describe the property described in the writ which has been seized by the officer) found in the possession of the defendant, and by summoning the defendant (naming him) according to the command of said writ, and I have delivered him a true copy of the writ, declaration and exhibits (or otherwise, as the case may be). The plaintiff (or defendant) having entered into bond, conditioned according to law, I delivered said property to the plaintiff (or defendant) and now return said writ.

This ___ day of _______, 2.

Sheriff”

§ 11-37-119

If the defendant in a replevin suit shall at any time deem any bond taken to be insufficient, such defendant may, upon filing a motion in the court where the suit is pending, obtain a hearing to determine the sufficiency of such bond. The court shall, after hearing the evidence upon such motion determine the sufficiency or insufficiency of the bond. If the bond given by the plaintiff be adjudged insufficient, the plaintiff shall be required to give a new and sufficient bond, or restore the property to the defendant within the time limited by the court; and, in default thereof, the defendant shall be entitled to proceed and enter judgment as in case the plaintiff had nonsuited or otherwise made default.

§ 11-37-121

If the return of the officer on the writ shows a failure to take the goods and chattels, but the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property, and damages for the taking or detention of the property, as if he had thus commenced his action, and the plaintiff and his sureties shall, upon motion, be discharged on their bond.

§ 11-37-123

The plaintiff shall be entitled to duplicate writs or process to other counties, and alias and pluries writs or process to take the property or to summon the defendant, as in other actions. When property shall be taken under the writ, but the defendant cannot be found, the defendant shall be notified by publication, as provided in case of attachment under like circumstances, as provided in Section 11-33-37, Mississippi Code of 1972, except that said cause may be triable five (5) days after completion of publication.

§ 11-37-125

All replevin actions, whether followed by writ of replevin as herein provided or by summons, as hereinafter provided, shall be triable in termtime or in vacation, and the court or judge having jurisdiction shall proceed at such hearing to a final determination of the rights of the parties to possession, provided at least five (5) days process has been had upon the defendant.

§ 11-37-127

If, upon a trial, the judgment shall be for the plaintiff, he shall retain possession of the property delivered to him under the writ of replevin, or if said property has not been found, then the plaintiff shall have a judgment for its value as determined by such hearing, or the value of the plaintiff's interest therein. Upon the entry of a judgment for the plaintiff in such replevin action, the plaintiff and the sureties on his bond shall be fully and finally discharged and said bond cancelled. If the defendant shall have bonded the property after seizure and the judgment shall be for the plaintiff, then such judgment shall be that the defendant shall immediately deliver up said property to the plaintiff, with the defendant and the sureties on his bond to be liable to the plaintiff for any damage to or depreciation in the value of such property from the date of its surrender to the defendant under his bond until the date of its surrender by the defendant in obedience to the judgment of the court, in addition to any other damage the plaintiff may have sustained by reason of the wrongful taking or detention of such property by the defendant, all as determined upon writ of inquiry; or that the plaintiff recover from the defendant and his sureties the value of said property at the date of its return to the defendant under bond.

§ 11-37-129

If the judgment be for the defendant, the plaintiff and the sureties on the plaintiff's bond shall restore to the defendant the property, if to be had, or pay to him the value thereof and any damages for the wrongful suing out of the writ, as assessed upon writ of inquiry. If the defendant shall have made bond for such property, he and his sureties shall be fully discharged and he may recover any damages from the plaintiff and his sureties for the wrongful suing out of said writ. In case the plaintiff make default in prosecuting the replevin action, or be nonsuited, after seizure under writ of replevin, the defendant may have a writ of inquiry to assess the value of the property, or the damages sustained by the wrongful suing out of the writ, or both, as the case may be; and like judgment shall be rendered upon the finding as upon an issue found for him.

§ 11-37-131

If any person, his agent or attorney, shall desire to institute an action of replevin without the necessity of posting bond, and without requesting the immediate seizure of the property in question, he shall file a declaration under oath setting forth those matters shown in subparagraphs (a) through (e) of Section 11-37-101 and shall present such pleadings to a judge of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice of the peace or other duly elected judge, and such judge shall issue a fiat directing the clerk of such court, or a deputy clerk, to issue a summons to the defendant, to appear before a court or judge having jurisdiction, as determined by the value of the property as alleged in the declaration, and as outlined in Section 11-37-101, with said process being returnable in termtime or in vacation, upon at least five (5) days' notice, summoning the defendant to appear for a final hearing to determine the rights of the parties as to possession, and upon such final hearing the court shall enter judgment accordingly.

§ 11-37-133

The summons may be in the following form, to-wit:

“The State of Mississippi

To the sheriff of __________ County, Greetings:

We command you hereby that you summons __________, (put full address) defendant, if to be found in your county, so that he be and appear before the __________ court, to be holden in and for the County of __________, at the courthouse thereof in the City of __________, Mississippi, on the ___ day of _______, 2, at __________ o'clock __________.M., to answer the plaintiff's declaration in replevin filed herein, a copy of which is attached hereto, and for a final hearing to determine the rights of the parties herein as to the possession of the property as described in the declaration in replevin.

Declaration filed when summons issued.

ISSUED THIS ___ day of _______, 2.

__________ Clerk”

§ 11-37-135

The summons in replevin shall be executed by summoning the defendant as in other civil cases, a copy of the declaration and exhibits being attached to said summons, directing the defendant to appear before the court shown in said summons, to answer the plaintiff's declaration under oath. The officer serving said process shall determine whether or not the defendant is then in possession of the property described in the declaration and shall so indicate on his return.

§ 11-37-137

If the defendant be found to be in possession of the property in question at the time of the service of process upon him, and if he shall conceal said property or dispose of the same, or fail to have the same within the jurisdiction of the court for such final judgment as may be rendered by the court in said replevin action, upon the return day of process herein, he shall be subject to penalties of contempt, upon motion of the plaintiff or order of the court.

§ 11-37-139

Where process in any replevin action is by way of a summons in replevin, said cause shall be triable on its merits upon at least five (5) days process upon the defendant, and said cause shall be triable in termtime or in vacation and at such place as the court may direct. In the event it shall appear at the return day that there is secondary service of process, or less than five (5) days process upon the defendant, the court may enter an order resetting said matter for trial on a future date, so as to insure that said cause will not be tried on its merits except upon a resetting on secondary process or except upon at least five (5) days process upon the defendant. In the event of such order resetting said cause for such later date, it shall not be necessary that further process be served upon the defendant.

§ 11-37-141

Upon the trial of any replevin action in which the property has not previously been seized under writ of replevin, if the judgment be for the plaintiff, the court shall enter judgment awarding to the plaintiff the immediate possession of the property and such judgment shall order and direct the sheriff or other lawful officer to immediately seize the property in question, without further process upon the defendant, and deliver said property to the plaintiff, a certified copy of the final judgment rendered in such case being furnished to the sheriff as evidence of his authority to seize such property and deliver it to the plaintiff.

§ 11-37-143

In any replevin action in which the property has not been previously seized by writ of replevin, if the defendant be successful in such action, the judgment of the court shall be that the declaration of the plaintiff be dismissed and court costs assessed against the plaintiff.

§ 11-37-145

All replevin actions shall be treated by the court as preference cases and shall be heard on the merits at the earliest possible date, with the view of reaching an early determination as to the rights of the parties to the property in question.

§ 11-37-147

All replevin actions shall be tried by the court without a jury, unless one (1) of the parties thereto shall file a written request for a jury trial.

§ 11-37-149

If a third person, not a party to the action of replevin, shall claim to be the owner or entitled to the possession of goods or chattels involved in a replevin action, he shall not be allowed to institute another action of replevin while the former is pending, but may intervene in said action and present his claim under oath.

§ 11-37-151

After the trial of the action of replevin, an issue shall be made between the successful party and the claimant as to the validity of his claim, and a trial shall be had to determine the right of possession as between them and judgment entered accordingly.

§ 11-37-153

All the provisions of law in reference to the death of either party, and the revival of the cause in personal actions, and the death of any of the obligors in a bond given in a replevin action, and the proceedings thereon before and after judgment, shall apply in like case to the action of replevin, and to a claim of property in such action.

§ 11-37-155

The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin.

§ 11-37-157

The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.

Chapter 38 Claim and Delivery

§ 11-38-1

Any person with an enforceable lien on any personal property, or right to the immediate possession thereof, or who asserts that such property has been wrongfully taken or detained may bring an action for claim and delivery by filing a complaint in writing, under oath, describing the property, setting forth his claim, share or interest therein, attaching an itemized account, if required, and giving the names of any other persons who have a similar or other claims or interests in such property. Thereupon the clerk or justice shall issue a writ directed to the proper officer to value the property, or so much thereof as may be necessary to satisfy the plaintiff's demand and cost, and to summon the persons named in the affidavit to appear in court, at the time fixed, to answer the complaint.

§ 11-38-3

The action for claim and delivery may be instituted in the circuit or county court of a county, or the justice court of a county, in which the defendant, or one (1) of several of them, resides or where the property, or some of it, may be found. Proper process shall issue to other counties and shall be made returnable to the first term of the court held after the issuance of said writ unless it shall be issued more than ten (10) days before the said term of court, when it may be returnable to the judge of the court at the usual place of holding the court at a day to be named, not more than ten (10) days or less than five (5) days after the date of the issuance of the writ, or before the judge in vacation, and the cause will be triable, provided the defendant has been served with process at least five (5) days before the return day of the writ. The judge shall have jurisdiction to hear the cause, or any matter pertaining thereto, in termtime or vacation, at such time and place as he may direct, and to enter such orders and judgment thereon as to adjust the rights of the parties in the subject matter; and all such cases shall be tried by the judge without the intervention of a jury unless a jury is demanded in the complaint or answer.

§ 11-38-5

The clerk or justice issuing the writ may also, by a separate summons, require the parties to appear before him for a preliminary hearing to determine the rights of the parties to immediate possession of the property involved, at a time and place fixed in the summons, but shall allow the defendant not less than two (2) days' notice. At the preliminary hearing the clerk or justice shall determine whether the temporary possession of the property is to be delivered to the plaintiff, retained by the defendant, or whether the proper officer shall seize and hold the property until a hearing on the merits to determine what bond, if any, should be required. An appropriate writ shall thereupon be issued for the enforcement of the temporary order. Upon written demand of either party the clerk, when the action is before a clerk of the court, shall refer the action for such preliminary hearing before any justice of the county or the judge of the court from which the process was issued. If temporary possession be granted to the plaintiff, the bond shall be for double the value of the property, and if temporary possession be granted to the defendant and bond be required, it shall be for not less than double the value of the plaintiff's interest therein.

Preliminary hearings may be determined by the justice or judge designated without regard to jurisdictional amount.

§ 11-38-7

The defendant, or any interested person, may contest the demand of the plaintiff on or before the return day of the writ by filing an answer in writing, under oath, of his claim or defense, itemizing his account, if any, and the case shall be then at issue between the parties, and shall be tried as other cases in the court. The judgment or judgments of the court shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit, and costs may be adjudged accordingly.

§ 11-38-9

The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.

Chapter 39 Quo Warranto

§ 11-39-1

The remedy by information in the nature of a quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz.:

First.--Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office.

Second.--Whenever any public officer has done or suffered to be done, or has omitted to do any act, the doing or omission of which works a forfeiture of office.

Third.--Whenever any two or more persons shall act as a corporation, or assume so to do without being legally incorporated.

Fourth.--Whenever any corporation shall be guilty of a misuser or abuse of its powers, or ceases to discharge the duty for which it was created.

Fifth.--Whenever any corporation willfully exercises powers not conferred by law.

Sixth.--Whenever any corporation fails to exercise powers conferred by law and essential to its corporate existence, or implied in its duty to the public.

Seventh.--Whenever any corporation shall be guilty of doing or neglecting to do any act the doing or neglecting of which is made by law a cause of forfeiture of franchise.

Eighth.--Whenever any corporation shall willfully and persistently violate the law made for regulating such corporations, or the criminal law; but acts done in good faith before adjudication of the constitutionality of a doubtful statute shall not be cause of forfeiture.

Ninth.--Whenever it is sought to have the right of any corporation, not created by the laws of this state, to do business in this state forfeited because of its persistent refusal to comply with the laws thereof.

Tenth.--Whenever any nonresident alien or corporation shall acquire or hold lands contrary to law.

§ 11-39-3

The proceedings in the cases set forth in Section 11-39-1 shall be by complaint, in the name of the state, by the Attorney General or a district attorney, on his own motion or on relation of another, and, in a case to try the right to an office, on the relation of the claimant thereof. The complaint shall be filed in the circuit court of the county of the residence of the defendant; or, in the case of an officer, where he acts as such; or, in case of a corporation or pretended corporation, where its principal office or place of business may be or where it may transact any business and has an agent; or, in case of an alien or corporation acquiring or holding land contrary to law, where any of the land is situated.

§ 11-39-5

In case the proceedings be on the relation of a person claiming to be entitled to an office, the ground of his claim shall be stated by proper averment, and judgment shall be rendered according to the rights of the respective claimants; and, if it be in favor of the relator, he shall be entitled to the office on qualifying according to law, and may recover of the defendant in an action all damages that may have accrued in consequence of withholding the office from him.

§ 11-39-7

For convenience and certainty, the complaint, if against a corporation, shall set out briefly the causes of forfeiture. It may be in the form following, to-wit:

| “State of Mississippi, | Circuit Court, __________ term, | | --- | --- | | County of ____________. | A.D. ____, |

“The State of Mississippi, by A B, district attorney for the __________ judicial district of the state, of his own accord (or on the relation of C D, as the case may be) gives the court here to understand and be informed that the corporation of __________ has forfeited all right to exercise any of the franchises and privileges granted it in this, to-wit (set out the causes of forfeiture).

“Wherefore, the State of Mississippi, by said district attorney, prays judgment of forfeiture and ouster against said corporation.”

And in all other cases the complaint shall be in form substantially the same as near as may be, conforming to the state of case.

§ 11-39-9

If the complaint be filed against persons exercising corporate franchises without authority, the following language may be used after the word “informed,” to-wit:

“That certain persons (naming them) have for __________ months last past used, and still do use, the following liberties and franchises without lawful authority, to-wit: (set out the franchises), which said franchises and privileges the said __________ have usurped, and still do usurp.

“Wherefore the State of Mississippi, by said district attorney, prays that they may be debarred of such rights.”

§ 11-39-13

After the complaint has been filed, summons shall be issued as required by the Mississippi Rules of Civil Procedure.

§ 11-39-15

During the pendency of the action, the court, or judge in vacation, may make all proper orders for preventing damage or injury to the plaintiff before the case is decided.

§ 11-39-19

If it be found on the trial of an information that a corporation has forfeited its charter, judgment of ouster from the franchises shall be given, and that it be dissolved; and if it be found, on trial, that persons claiming to exercise a franchise are not entitled to the same, the judgment shall be that such persons be debarred and excluded from the use of the franchise; and in both cases the state shall recover costs. If judgment be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from office and debarred therefrom, and shall pay costs.

The court shall order the defendant to deliver over all records, books, and papers in his custody or under his control, belonging to the office, and may make and enforce all orders proper to carry its judgment into effect.

§ 11-39-21

Any person who refuses or knowingly neglects to obey any order of the court made as herein provided, shall be guilty of contempt of court, and shall be fined in any sum not exceeding Five Thousand Dollars ($5,000.00), and imprisoned in the county jail until he comply with the order. He shall be further liable for damages resulting to any person on account of his refusal to obey.

§ 11-39-23

When an information is upon the relation of a private individual, it shall be so stated in the petition and proceedings, and such individual shall be responsible for costs as plaintiffs are responsible in other cases.

§ 11-39-25

When judgment of forfeiture and ouster shall be rendered against any corporation or against any person pretending to exercise corporate franchises, the debtors to such corporation, or other body, shall not be thereby released from their debts and liabilities, and it shall be the duty of the judge of the court rendering the judgment to appoint one or more trustees to take charge of the books, evidences of debts, assets and property of such corporation or body pretending to exercise corporate franchises. Such trustees are invested with full power and authority to sue, in their own name, for and to collect all debts due to such corporation or body pretending to exercise corporate franchise, and to be sued in any court upon permission to sue being first obtained from the chancery court, and, generally, to maintain any action, or to revive or have revived against them any suit or judgment for or against such corporation or other body. The proceeds of debts collected and property sold shall be applied by such trustees to the payment of the costs in the quo warranto proceedings and in payment of debts, under the direction of the court.

§ 11-39-27

Before they enter upon the discharge of their duties, the trustees shall execute bond in such sum as may be prescribed, and with such sureties as may be approved by the judge, payable to the state, and conditioned for the faithful discharge of their duties as trustees, which bond may be put in suit for a breach thereof; and the amount collected thereon shall constitute a fund for the benefit of creditors or stockholders, as other funds of the corporation.

§ 11-39-29

It shall be the duty of all persons having possession of property or evidences of debt belonging to any corporation, or persons pretending to exercise corporate franchises, against which or whom judgment of forfeiture shall have been rendered, to surrender and deliver the same to the trustees so appointed, and, in case of failure to do so, such trustees may maintain an action therefor.

§ 11-39-31

It shall be the duty of the trustees, at the next succeeding term after their appointment of the chancery court of the county in which the quo warranto judgment was rendered, or at such other time as may be designated by the said chancery court or the chancellor, to return, under oath, to the court, a full and complete inventory of all evidences of debt, and property of every description, which may have come to their possession or knowledge as the property of the corporation or body pretending to exercise corporate franchises, and from time to time such further inventories as may be necessary, in case additional assets or property shall be discovered, which inventories shall be recorded by the clerk. The chancery court, or the chancellor in vacation, may remove trustees and appoint new ones, or fill vacancies in case of death or resignation, and may require new bonds of the trustees.

§ 11-39-33

The chancery court, or chancellor in vacation, shall order the sale of the property, real and personal, in the same manner and on the same terms as such property of intestate decedents is sold, and like proceedings shall be had as far as applicable. It shall not be lawful for a trustee to become the purchaser of any property sold by him in that capacity, or by his cotrustees, either directly or indirectly, or to act as agent of any other person in making such purchase; and all purchases in violation of this provision shall be void.

§ 11-39-35

The chancery court shall require all claims against the funds in the hands of the trustees to be presented and audited in such manner as shall be deemed proper. Notice shall be given to all persons holding such claims to present and have them audited in the same manner as such notice is given in the administration of estates, and all claims not presented and audited within twelve months after the last publication shall be forever barred.

§ 11-39-37

The compensation of trustees and others shall be determined by the court, and allowed out of the effects of the corporation or other body, under the control of the court.

§ 11-39-39

It shall be the duty of the trustees, at the first term of the court after the time for presenting claims has elapsed, to make a full and complete report of all claims presented and audited, at which time exception may be taken to the allowance or rejection of any claim, and, if sustained, the report may be corrected. When the report is settled, and the amount of indebtedness ascertained, the court shall order the trustees to pay the debts in the following order:

(a) The compensation to the trustees and others, and expenses incurred in settling the affairs of the corporation, including the payment of the costs in the quo warranto proceedings in the circuit court, and the costs in the chancery court.

(b) Debts due to the state or any county, city, town, or village for taxes or otherwise.

(c) A ratable distribution amongst creditors who have proved their claims, and had them allowed.

(d) The surplus, if any, shall be ratably distributed among the stockholders, according to their respective rights.

§ 11-39-51

A proceeding by quo warranto to try the right to any public office, may be tried and determined in vacation as well as in term time.

§ 11-39-59

The clerk, sheriff, jurors, and witnesses shall have the same allowance for attendance, to be taxed in the costs, as if their attendance was upon a circuit court, and shall be compellable to attend in like manner.

§ 11-39-61

The judge, before making the order for trial in vacation or afterward, may impose such terms, and make such requirements as to costs and payment thereof or security therefor, as he thinks proper, and shall tax the costs of the case as he may deem just.

Chapter 41 Mandamus; Prohibition

§ 11-41-1

On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law. All procedural aspects of this action shall be governed by the Mississippi Rules of Civil Procedure.

§ 11-41-3

The complaint shall be filed in the circuit court of the county in which the tribunal, corporation, board, officer, or person made defendant, or some one or more of them, shall reside or be found; but if the judge of that court be interested, the complaint may be filed in an adjoining circuit court district.

§ 11-41-19

A proceeding by mandamus may be tried and determined in termtime or in vacation; and, if tried in vacation, all the provisions of law relating to the trial and proceedings in vacation of information in the nature of quo warranto shall apply.

Chapter 43 Habeas Corpus

§ 11-43-1

The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in the cases expressly excepted.

§ 11-43-3

Nothing in this chapter shall authorize the discharge of any person convicted of an offense, or charged with an offense committed in any other part of the United States, and who, agreeably to the Constitution of the United States or the laws of the state, ought to be delivered up to the executive power of the state or territory where the offense is charged to have been committed; nor of any person suffering imprisonment under lawful judgment.

This chapter shall not apply to any collateral relief sought by any person following his conviction of a crime. Such relief shall be governed by the procedures prescribed in the Mississippi Uniform Post-Conviction Collateral Relief Act.

Provided, in any suit filed seeking the release of any person being held for extradition to any other part of the United States, its territories or foreign countries or any suit filed hereunder seeking the release of any person ordered extradited, a copy of the petition and writ shall be served upon the Attorney General not less than three (3) days before the date and time set for hearing thereon.

§ 11-43-5

If it appear on the trial of any habeas corpus that the relator is held by virtue of proceedings against him for crime which are invalid, the judge shall not discharge the relator because thereof, but shall investigate the facts; and if it be found that he ought to be held for any crime alleged against him, the judge shall not discharge him, but shall commit him or require bail, according to the nature of the case.

§ 11-43-7

The writ of habeas corpus may be granted by a judge of the Supreme Court, or a judge of the circuit or chancery court, in term time or in vacation, returnable before himself or another judge.

§ 11-43-9

Application for a writ of habeas corpus shall be by petition, in writing, sworn to by the person for whose relief it is intended, or by someone in his behalf, describing where and by whom he is deprived of liberty, and the facts and circumstances of the restraint, with the ground relied on for relief; and the application shall be made to the judge or chancellor of the district in which the relator is imprisoned, unless good cause be shown in the petition to the contrary. However, any petition filed by an inmate of any training school or hospital attacking his commitment for a claimed denial of a fundamental constitutional right under the Constitution of the State of Mississippi or of the United States which would affect his commitment shall be filed in a court of the county from which he was committed. And, if filed in any other court, the judge of that court shall, if he grants the writ, make it returnable to a court of the county from which the relator was committed; and in the case of a person committed by a youth court, not less than five (5) days' notice prior to hearing shall be given to the county attorney or district attorney of the county of commitment.

§ 11-43-11

If from the showing made by the petition for habeas corpus it be manifest that the person by whom, or on whose behalf, it is presented is not entitled to any relief thereby, the judge or chancellor may refuse to grant the writ, indorsing on the application his reason therefor.

§ 11-43-13

Where the application is by or on behalf of one detained on a criminal charge, the judge or chancellor, on granting the writ, may, in his discretion, require a bail bond by or on behalf of the person detained, conditioned that he shall not escape by the way. The judge or chancellor may fix the amount of such bail, and direct who shall approve the bond; but such bail bond shall not operate to discharge the relator from custody. Such bond shall be deposited by the judge or chancellor in the clerk's office of the court in which the case is triable. If the condition of the bond be broken, the proceedings thereon shall be as in case of other forfeited bonds or recognizances.

§ 11-43-15

The judge granting the writ may order it to be issued by the Clerk of the Supreme Court, or of any circuit or chancery court, who shall immediately issue it on receiving the order; or, when not convenient to a clerk, the judge himself shall issue the writ. Any judge or chancellor who shall wilfully refuse or neglect to grant, or to issue and try, the writ of habeas corpus, when required by law to do so, shall be guilty of a high misdemeanor in office, and any clerk who shall not, when ordered, immediately issue the writ, and other process, shall be liable, on conviction thereof, to be removed from office; and the judge or clerk shall, in case of such neglect or refusal, be liable, civilly, to the party aggrieved.

§ 11-43-17

The writ may be in substance, as follows, to wit:

“The State of Mississippi, to __________:

“We command you to have the body of __________, by you detained, as it is said, before __________, a judge of our __________ court, at __________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him. Witness my hand,” etc.

And it may be served by such person as the judge granting it may direct, or by the sheriff or any constable, and it shall be served by the delivery of a true copy thereof to the person to whom it is directed, if to be found. And if it be directed to a sheriff or other officer who cannot be found, it may be served by leaving a copy with any deputy or servant of the officer to whom it is directed, at the place where the prisoner or other person is detained; and it shall be returned with an indorsement of service as in other cases.

§ 11-43-19

When it shall be shown to the judge to whom application is made for the writ, that there is reasonable ground to apprehend that the person in whose behalf the writ is applied for will be concealed or removed so as not to be brought up with the writ, it shall be the duty of the judge to order or issue the writ directed to the sheriff or other officer or person designated to execute it, commanding him to take the body of the person to be relieved by the writ, and bring him forthwith before the judge, and to summon the person alleged to have illegally detained him; in which case the form of the writ shall be, in substance, as follows, to wit:

“The State of Mississippi.

“To the sheriff or any lawful officer of __________ county:

“We command you to take and have the body of __________ restrained of his liberty, it is said, by __________, before __________, a judge of our __________ court, at __________, forthwith, to do and receive what shall then be considered; and do you summon the said __________ to appear, then and there to show the cause of detaining said __________; and have you then and there this writ, with your proceedings indorsed thereon. Witness my hand,” etc.

The writ shall be executed according to its tenor and effect, and returned as other writs.

§ 11-43-21

All writs of habeas corpus may be issued or served on Sunday in case of emergency.

§ 11-43-23

The writ of habeas corpus shall be returnable forthwith, or on a particular day within a reasonable time, and at a place to be named by the judge granting the writ. But when granted by a circuit judge or chancellor, on the application of any person in custody, before conviction upon a criminal charge under the laws of this state, the judge or chancellor shall cause the writ to be made returnable at a convenient place in the county in which the offense is alleged to have been committed, unless so doing will interfere with his holding of a term of court.

§ 11-43-25

Whenever the judge or chancellor, on issuing a writ of habeas corpus, shall be satisfied, by affidavit or otherwise, that the person unlawfully depriving another of his liberty has committed a crime in connection with such unlawful act, he may embody in the writ a warrant for the arrest of such person and have him brought up for examination at the hearing of the habeas corpus; and being satisfied, on the trial and examination, of the guilt of such person, the judge or chancellor shall commit him, or order his release on bail, to appear before the proper court to answer the charge.

§ 11-43-27

Whenever any writ of habeas corpus shall be served upon the sheriff or any other person to whom the same may be directed, or who may be ordered summoned thereby, he shall bring, or permit the officer executing the writ to bring, the body of the prisoner or person detained in custody before the judge who is to try the same, at the time and place designated in the writ, or, in case of the absence of such judge, then before any other judge, and to make return or answer to said writ.

§ 11-43-29

The officer or other person upon whom a writ of habeas corpus shall be served shall state in his return or answer:

First.--Whether he have or have not the party in his custody or under his power or restraint.

Second.--If he have the party in his custody or power, or under his restraint, he shall state the authority and cause of imprisonment or restraint, setting forth the same at large.

Third.--If the party be restrained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return or answer, and the original shall be produced on the hearing.

Fourth.--If the officer or person upon whom the writ is served shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but such person has escaped, or such officer or person has transferred the custody or restraint to another, the return or answer shall state the facts particularly, and, in case of transfer, set forth the time and place, for what cause, and by what authority the transfer took place.

Fifth.--The return must be signed by the officer or person making it, and, except when a sworn public officer shall make return in his official capacity, it shall be verified by his oath.

§ 11-43-31

Any person who is duly served with a writ of habeas corpus commanding him to produce the body of any other person in his custody, who shall fail to produce the body of the person before the judge, according to the command of the writ, shall forfeit and pay to the party not so produced the sum of One Thousand Dollars ($1,000.00), to be recovered before any court having jurisdiction, the right to recover which shall not cease by the death of either party. The judge before whom the writ was made returnable may also punish the person failing to obey the command thereof or to perform the duties prescribed, or to obey such order as the judge may make, as for a contempt, and compel obedience by process of attachment or otherwise. Any officer from whom the custody of any person is taken by writ of habeas corpus who shall fail to return the cause of commitment of any prisoner or other person as prescribed, may be punished in like manner.

§ 11-43-33

The judge or chancellor before whom the prisoner or other person may be brought, shall inquire into the cause of imprisonment or detention, and shall either discharge, commit, admit to bail, or remand the prisoner, or award the custody to the party entitled thereto, as the law and the evidence shall require; and may also award costs and charges, for or against either party, as may seem right. And the clerk of the court in whose office the proceedings may be filed, shall issue execution for the costs and charges so awarded, against the party bound therefor. But the judge may continue the trial from day to day as the case may require.

§ 11-43-35

The court or judge may make any temporary order in the cause during the progress of the proceedings that may be right and proper, or that justice may require.

§ 11-43-37

The return or answer made to a writ of habeas corpus shall not be conclusive as to the facts therein stated, but evidence may be received to contradict the same.

§ 11-43-39

The judge or chancellor may issue or order subpoenas for witnesses and compel their attendance, as a circuit court could in term time, and fine witnesses or others for contempt. Whenever the personal attendance of a witness cannot be procured, his affidavit, taken on reasonable notice to the adverse party, may be received in evidence.

§ 11-43-41

The proceedings and judgment shall in all cases be entered of record. If the trial be in vacation, the proceedings shall be written out and signed by the judge or chancellor and deposited with the clerk of the circuit court of the county in which the habeas corpus is tried, unless the judge shall direct it to be deposited with such clerk of some other county. If either party require it, the evidence shall be made a part of the record by bill of exceptions, as in other cases.

§ 11-43-43

The judgment rendered on the trial of any writ of habeas corpus shall be conclusive until reversed, and, whilst so in force, shall be a bar to another habeas corpus in the same cause, or to any other proceedings, to bring the same matter again in question, except by appeal or by action for false imprisonment; nor shall any person so discharged be afterward confined for the same cause, except by a court of competent jurisdiction.

§ 11-43-45

The sheriff, when required by the judge or chancellor, shall attend in person, or by deputy, upon the trial of a habeas corpus in his county, to keep order and execute the mandates of the judge or chancellor, and shall be subject to the orders of the judge or chancellor during the trial in vacation in the same manner as in term time. The judge or chancellor trying a habeas corpus in vacation shall have the same power to fine and imprison for contempt as in term time.

§ 11-43-47

When the application for a writ of habeas corpus is in the nature of a civil action between parties, the law providing for security for costs shall be applicable; and in such cases persons who may produce the body of another, or render other services, may be allowed the same fees as allowed by law to officers for the same services, the costs to be taxed and collected as in other cases.

§ 11-43-49

If a witness shall not obey the subpoena served on him in case of habeas corpus, the judge or chancellor may not only issue, or cause the clerk to issue, an attachment for the witness, but shall indorse on the subpoena the default of the witness and a fine therefor, and file it with the other papers in the clerk's office of the proper circuit court. Scire facias shall issue for the witness, returnable before the court, and proceedings shall be had as provided in case of a defaulting witness in the circuit court.

§ 11-43-51

Witnesses in a habeas corpus case shall be subject to the same penalties, and be entitled to the same privileges and compensation, and be paid in the same way, as in other cases. They may prove their attendance before the clerk in whose office the record of the proceeding is filed, and obtain from him a certificate of their attendance and of the compensation to which they are entitled, as in cases in the circuit courts; or the judge trying the case may give the witnesses certificates of their attendance and the compensation to which they are entitled, which shall have the same effect as such certificates in a like case by the clerk.

§ 11-43-53

Any party aggrieved by the judgment on the trial of a habeas corpus, shall have an appeal to the Supreme Court. If any person held in service by this state, or by the United States, should be discharged by any judge in vacation, or any court, on habeas corpus, the Attorney General or any district attorney, or any attorney duly authorized by the United States, may in like manner obtain an appeal to reverse the judgment by which such person was discharged.

§ 11-43-55

An appeal from a judgment on the trial of a writ of habeas corpus may be had by or in behalf of the person deprived of his liberty on the same terms and conditions as are provided for in criminal cases; but such appeal shall not entitle a party to be discharged on bail in any case held not to be one in which the party is entitled to bail. In all other cases, an appeal from a judgment on trial of a writ of habeas corpus may be had on their terms prescribed for appeals in civil cases, where a supersedeas is not desired.

Chapter 44 Compensation to Victims of Wrongful Conviction and Imprisonment

§ 11-44-1

The Legislature finds that innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and should be compensated. In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the provisions of this chapter that innocent people who are wrongfully convicted be able to receive monetary compensation.

§ 11-44-3

(1) In order to present an actionable claim for wrongful conviction and imprisonment under this chapter, a claimant must establish by documentary evidence that:

(a) The claimant has been convicted of one or more felonies and subsequently sentenced to a term of imprisonment and has served all or any part of the sentence;

(b) On grounds not inconsistent with innocence:

(i) The claimant was pardoned for the felony or felonies for which sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or

(ii) The judgment of conviction was vacated and/or reversed;

(c) If there was a vacatur or reversal, either the accusatory instrument was dismissed or nol prossed; or if a new trial was held, the defendant was found not guilty;

(d) The claimant's claim is not time-barred by the provisions of this chapter; and

(e) The claimant did not intentionally waive any appellate or post-conviction remedy otherwise available in order to benefit under this chapter.

(2) The claim shall be verified by the claimant.

(3) If the court finds after reading the claim that the claimant has not demonstrated the foregoing, it shall dismiss the claim, either on its own motion or on the state's motion. This dismissal shall be without prejudice to allow adequate refiling within ninety (90) days.

§ 11-44-5

Jurisdiction of all claims of wrongful conviction and imprisonment brought under this chapter shall lie in the circuit court of the county in which the claimant was convicted. The respondent will be the State of Mississippi, which will be represented by the Attorney General's office.

§ 11-44-7

(1) In order to obtain a judgment under this chapter, a claimant must prove by a preponderance of the evidence that:

(a) He was convicted of one or more felonies and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and

(i) He has been pardoned for the felony or felonies for which he was sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or

(ii) His judgment of conviction was reversed or vacated; and

1. The accusatory instrument was dismissed or nol prossed; or

2. If a new trial was ordered, he was found not guilty at the new trial; and

(b) He did not commit the felony or felonies for which he was sentenced and which are the grounds for the complaint, or the acts or omissions for which he was sentenced did not constitute a felony; and

(c) He did not commit or suborn perjury, or fabricate evidence to bring about his conviction.

(2) If the court finds that the claimant was wrongfully convicted and incarcerated pursuant to subsection (1) of this section, the court shall award:

(a) Fifty Thousand Dollars ($50,000.00) for each year of incarceration regardless of the number of felonies for which a claimant was convicted, but the total amount for each claimant shall not exceed Five Hundred Thousand Dollars ($500,000.00). There shall be no compensation for any preindictment detention. This award shall be paid to the claimant in installments of Fifty Thousand Dollars ($50,000.00) per year until the award is fully paid. The state may purchase an annuity to satisfy this obligation.

(b) Reasonable attorney's fees for bringing a claim under this chapter calculated at ten percent (10%) of the amount awarded under paragraph (a) of this subsection for preparing and filing the claim, twenty percent (20%) for litigating the claim if it is contested by the Attorney General, and twenty-five percent (25%) if the claim is appealed, plus expenses. These fees shall not be deducted from the compensation due the claimant, nor is counsel entitled to receive additional fees from the client for a claim under this section.

(3) The award shall not be subject to:

(a) Any cap applicable to private parties in civil lawsuits;

(b) Any taxes, except that those portions of the judgment awarded as attorney's fees for bringing a claim under this chapter shall be taxable as income to the attorney; or

(c) Treatment as gross income to a claimant under the provisions of Title 27, Chapter 7, Mississippi Code of 1972.

(4) A claimant may choose to pursue a claim under this chapter in lieu of pursuing a claim against the State of Mississippi or a political subdivision thereof under the Mississippi Tort Claims Act, Section 11-46-1 et seq., Mississippi Code of 1972. Any claimant who obtains an award under this chapter may not obtain an award by reason of the same subject against the State of Mississippi or a political subdivision thereof under the provisions of the Mississippi Tort Claims Act, Section 11-46-1 et seq., Mississippi Code of 1972.

(5) The immunity of the State of Mississippi and any political subdivision thereof is hereby waived with respect to the claims described in this chapter and within the limits prescribed by this chapter.

§ 11-44-9

(1) An action for compensation brought by a wrongfully convicted person under the provisions of this chapter shall be commenced within three (3) years after either the grant of a pardon or the grant of judicial relief and satisfaction of other conditions described in Section 11-44-3(1); provided, however, that any action by the state challenging or appealing the grant of said judicial relief shall toll the three-year period. Persons convicted, incarcerated and released from custody prior to July 1, 2009, shall commence an action under this chapter not later than June 30, 2012.

(2) Notwithstanding any other provision of law, failure to file any applicable Notice of Claim shall not bar filing of a claim under this chapter.

§ 11-44-11

Any party aggrieved by a decision as to a claim brought under this chapter is entitled to appeal the decision as in other civil cases.

§ 11-44-13

If a claimant dies prior to the full payment of any claim awarded under this chapter, the remaining payments shall be made to his or her estate or heirs. If any potential claimant dies prior to the filing of a claim, the claim may be filed by and on behalf of his or her estate or heirs.

§ 11-44-15

Any claimant who receives compensation under this chapter shall sign a release from all claims against the state regarding the incarceration for which the claimant receives compensation.

Chapter 45 Suits by and Against the State or Its Political Subdivisions

§ 11-45-1

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be.

§ 11-45-3

The summons in such suit shall be served on the Attorney General in the mode prescribed by law for the service of a summons in other cases; and he shall appear for the state. The suit shall be proceeded with as if it were between private persons; but a bill shall not be taken as confessed nor a judgment by default be rendered against the state. The answer of the state to any bill need not be under oath or under the great seal, but may be made by the Attorney General for the state.

§ 11-45-5

A judgment or decree against the state shall not be satisfied except by an appropriation therefor by the legislature, and an execution shall not be issued against the state.

§ 11-45-7

If any person shall unlawfully enter on, and intrude upon or hold land belonging to the state, or take possession of or hold any personal property belonging to the state, such person may be proceeded against by action to be instituted by the district attorney of the district, or by the escheator of the county in a proper case. On the trial of the issue, the court or jury shall assess damages for rents and profits, and for injury done to the property by the despoilment of the timber or otherwise. If the trespass complained of be the cutting, belting, girdling, boxing, or otherwise injuring the timber, triple damages shall be recovered.

§ 11-45-9

In like manner as set forth in Section 11-45-7, an action may be prosecuted in all cases where property, real or personal, has accrued to the state by any forfeiture or otherwise.

§ 11-45-11

The state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case. It may maintain the action of unlawful entry and detainer in all cases, at its option, for the recovery of land.

§ 11-45-13

All suits which have by acts of the Legislature been heretofore abated shall continue so abated. All rights of action and causes of action which the state, or any officer for the use of the state may have had, where by act of the Legislature such right has been abrogated and the authority and right to bring suit thereon denied, such right shall continue so abrogated and such right and authority to bring suit thereon and therefor shall continue to be denied.

§ 11-45-15

Any county may have like remedies given to recover any property belonging to it, or damages for injury thereto; and action may be brought in behalf of the county by the county prosecuting attorney or by someone employed therefor by the board of supervisors.

§ 11-45-17

Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; but suit shall not be brought by the county without the authority of the board of supervisors, except as otherwise provided by law.

§ 11-45-19

Suit may be brought, in the name of the county, where only a part of the county or of its inhabitants are concerned, and where there is a public right of such part to be vindicated.

§ 11-45-21

Neither the state nor any county shall be required to give bond in any suit.

§ 11-45-23

When the state or any county, shall recover property by suit, the possession of the property shall be delivered to such officer, agent or representative of the state or county as may be designated by proper authority to receive it, or having right to its custody for the state or county.

§ 11-45-25

A municipality may sue and be sued by its corporate name. Suits against any municipality shall be instituted in the county in which such municipality is situated, where such actions are brought in the circuit or chancery or county courts, and where such municipality is wholly situated in one (1) county. In a case where a county has two (2) judicial districts, such suits shall be brought in the judicial district in which the municipality or its principal office is located. In cases where a municipality is located in two (2) counties, such suits shall be brought in the county in which the principal office of the municipality is located. As to justice court actions, the same shall be brought in the county in which the municipality or its principal office is located.

Chapter 46 Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees

§ 11-46-1

As used in this chapter, the following terms shall have the meanings ascribed unless the context otherwise requires:

(a) “Claim” means any demand to recover damages from a governmental entity as compensation for injuries.

(b) “Claimant” means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.

(c) “Board” means the Mississippi Tort Claims Board.

(d) “Department” means the Department of Finance and Administration.

(e) “Director” means the executive director of the department who is also the executive director of the board.

(f) “Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term “employee” shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; and

(i) For purposes of the limits of liability provided for in Section 11-46-15, the term “employee” shall include:

1. Physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under the contract;

2. Any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites, including any physician or other health care practitioner employed by UMMC under an arrangement with a public or private health-related organization;

3. Any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning;

4. Any physician, dentist or other health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for the State Veterans Affairs Board;

(ii) The term “employee” shall also include Mississippi Department of Child Protection Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8; and

(iii) The term “employee” also shall include any employee or member of the governing board of a charter school but shall not include any person or entity acting in the capacity of an independent contractor to provide goods or services under a contract with a charter school.

(g) “Governmental entity” means the state and political subdivisions.

(h) “Injury” means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.

(i) “Political subdivision” means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, charter school, volunteer fire department that is a chartered nonprofit corporation providing emergency services under contract with a county or municipality, community hospital as defined in Section 41-13-10, airport authority, or other instrumentality of the state, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.

(j) “State” means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.

(k) “Law” means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.

§ 11-46-3

(1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the “state” and its “political subdivisions,” as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

(2) The immunity of the state and its political subdivisions recognized and reenacted herein is and always has been the law in this state, before and after November 10, 1982, and before and after July 1, 1984, and is and has been in full force and effect in this state except only in the case of rights which, prior to the date of final passage hereof, have become vested by final judgment of a court of competent jurisdiction or by the express terms of any written contract or other instrument in writing.

§ 11-46-5

(1) Notwithstanding the immunity granted in Section 11-46-3, or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity in any such case shall be waived only to the extent of the maximum amount of liability provided for in Section 11-46-15.

(2) For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.

(3) For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment, except for actions described in subsection (2) of Section 73-25-33 and subsection (5) of this section.

(4) Nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.

(5) For purposes of this chapter, an employee shall not be considered as acting within the course and scope of his or her employment and a governmental entity shall be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted a violation of Title 41, Chapter 141, Mississippi Code of 1972.

§ 11-46-7

(1) The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.

(2) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee's conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

(3) From and after July 1, 1993, as to the state, from and after October 1, 1993, as to political subdivisions, and subject to the provisions of this chapter, every governmental entity shall be responsible for providing a defense to its employees and for the payment of any judgment in any civil action or the settlement of any claim against an employee for money damages arising out of any act or omission within the course and scope of his employment; provided, however, that to the extent that a governmental entity has in effect a valid and current certificate of coverage issued by the board as provided in Section 11-46-17, or in the case of a political subdivision, such political subdivision has a plan or policy of insurance and/or reserves which the board has approved as providing satisfactory security for the defense and protection of the political subdivision against all claims and suits for injury for which immunity has been waived under this chapter, the governmental entity's duty to indemnify and/or defend such claim on behalf of its employee shall be secondary to the obligation of any such insurer or indemnitor, whose obligation shall be primary. The provisions of this subsection shall not be construed to alter or relieve any such indemnitor or insurer of any legal obligation to such employee or to any governmental entity vicariously liable on account of or legally responsible for damages due to the allegedly wrongful error, omissions, conduct, act or deed of such employee.

(4) The responsibility of a governmental entity to provide a defense for its employee shall apply whether the claim is brought in a court of this or any other state or in a court of the United States.

(5) A governmental entity shall not be entitled to contribution or indemnification, or reimbursement for legal fees and expenses from its employee unless a court shall find that the act or omission of the employee was outside the course and scope of his employment. Any action by a governmental entity against its employee and any action by an employee against the governmental entity for contribution, indemnification, or necessary legal fees and expenses shall be tried to the court in the same suit brought on the claim against the governmental entity or its employee.

(6) The duty to defend and to pay any judgment as provided in subsection (3) of this section shall continue after employment with the governmental entity has been terminated, if the occurrence for which liability is alleged happened within the course and scope of duty while the employee was in the employ of the governmental entity.

(7) For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.

(8) Nothing in this chapter shall enlarge or otherwise adversely affect the personal liability of an employee of a governmental entity. Any immunity or other bar to a civil suit under Mississippi or federal law shall remain in effect. The fact that a governmental entity may relieve an employee from all necessary legal fees and expenses and any judgment arising from the civil lawsuit shall not under any circumstances be communicated to the trier of fact in the civil lawsuit.

§ 11-46-8

Mississippi Department of Child Protection Services licensed foster parents shall be covered under this chapter for claims made by parties other than the foster child which are based on inadequate supervision or inadequate care of the foster child on the part of the foster parent.

§ 11-46-9

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

(a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;

(f) Which is limited or barred by the provisions of any other law;

(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

(h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature;

(i) Arising out of the assessment or collection of any tax or fee;

(j) Arising out of the detention of any goods or merchandise by any law enforcement officer, unless such detention is of a malicious or arbitrary and capricious nature;

(k) Arising out of the imposition or establishment of a quarantine, whether such quarantine relates to persons or property;

(l) Of any claimant who is an employee of a governmental entity and whose injury is covered by the Workers' Compensation Law of this state by benefits furnished by the governmental entity by which he is employed;

(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;

(n) Arising out of any work performed by a person convicted of a crime when the work is performed pursuant to any sentence or order of any court or pursuant to laws of the State of Mississippi authorizing or requiring such work;

(o) Under circumstances where liability has been or is hereafter assumed by the United States, to the extent of such assumption of liability, including, but not limited to, any claim based on activities of the Mississippi National Guard when such claim is cognizable under the National Guard Tort Claims Act of the United States, 32 USCS 715 (32 USCS 715), or when such claim accrues as a result of active federal service or state service at the call of the Governor for quelling riots and civil disturbances;

(p) Arising out of a plan or design for construction or improvements to public property, including, but not limited to, public buildings, highways, roads, streets, bridges, levees, dikes, dams, impoundments, drainage channels, diversion channels, harbors, ports, wharfs or docks, where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design;

(q) Arising out of an injury caused solely by the effect of weather conditions on the use of streets and highways;

(r) Arising out of the lack of adequate personnel or facilities at a state hospital or state corrections facility if reasonable use of available appropriations has been made to provide such personnel or facilities;

(s) Arising out of loss, damage or destruction of property of a patient or inmate of a state institution;

(t) Arising out of any loss of benefits or compensation due under a program of public assistance or public welfare;

(u) Arising out of or resulting from riots, unlawful assemblies, unlawful public demonstrations, mob violence or civil disturbances;

(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;

(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice;

(x) Arising out of the administration of corporal punishment or the taking of any action to maintain control and discipline of students, as defined in Section 37-11-57, by a teacher, assistant teacher, principal or assistant principal of a public school district in the state unless the teacher, assistant teacher, principal or assistant principal acted in bad faith or with malicious purpose or in a manner exhibiting a wanton and willful disregard of human rights or safety; or

(y) Arising out of the construction, maintenance or operation of any highway, bridge or roadway project entered into by the Mississippi Transportation Commission or other governmental entity and a company under the provisions of Section 65-43-1 or 65-43-3, where the act or omission occurs during the term of any such contract.

(2) A governmental entity shall also not be liable for any claim where the governmental entity:

(a) Is inactive and dormant;

(b) Receives no revenue;

(c) Has no employees; and

(d) Owns no property.

(3) If a governmental entity exempt from liability by subsection (2) becomes active, receives income, hires employees or acquires any property, such governmental entity shall no longer be exempt from liability as provided in subsection (2) and shall be subject to the provisions of this chapter.

§ 11-46-11

(1) After all procedures within a governmental entity have been exhausted, any person having a claim under this chapter shall proceed as he might in any action at law or in equity, except that at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity.

(2)(a) Service of notice of claim shall be made as follows:

(i) For local governments:

1. If the governmental entity is a county, then upon the chancery clerk of the county sued;

2. If the governmental entity is a municipality, then upon the city clerk.

(ii) If the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), or is a political subdivision other than a county or municipality, service of notice of claim shall be had only upon that entity's or political subdivision's chief executive officer. The chief executive officer of a governmental entity participating in a plan administered by the board pursuant to Section 11-46-7(3) shall notify the board of any claims filed within five (5) days after receipt thereof.

(b) Every notice of claim shall:

(i) Be in writing;

(ii) Be delivered in person or by registered or certified United States mail; and

(iii) Contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought, and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

(3)(a) All actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designated official of a political subdivision receives the notice of claim.

(b) No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an additional ninety (90) days to file suit; failure to file within the time allowed is an absolute bar to any further proceedings under this chapter.

(c) All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only.

(d)(i) To determine the running of limitations periods under this chapter, service of any notice of claim or notice of denial of claim is effective upon delivery by the methods statutorily designated in this chapter.

(ii) The limitations period provided in this section controls and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations that would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

(4) From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

§ 11-46-13

(1) Jurisdiction for any suit filed under the provisions of this chapter shall be in the court having original or concurrent jurisdiction over a cause of action upon which the claim is based. The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter. Appeals may be taken in the manner provided by law.

(2) The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

§ 11-46-15

(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:

(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00);

(b) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00);

(c) For claims or causes of action arising from acts or omissions occurring on or after July 1, 2001, the sum of Five Hundred Thousand Dollars ($500,000.00).

(2) No judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award for exemplary or punitive damages or for interest prior to judgment, or an award of attorney's fees unless attorney's fees are specifically authorized by law.

(3) Except as otherwise provided in Section 11-46-17(4), in any suit brought under the provisions of this chapter, if the verdict which is returned, when added to costs and any attorney's fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount of liability provided in subsection (1) of this section.

§ 11-46-17

(1) There is hereby created in the State Treasury a special fund to be known as the “Tort Claims Fund.”

All monies that the Department of Finance and Administration receives and collects under the provisions of subsection (2) of this section and all funds that the Legislature appropriates for use by the board in administering the provisions of this chapter shall be deposited in the fund. All monies in the fund may be expended by the board for any and all purposes for which the board is authorized to expend funds under the provisions of this chapter. All interest earned from the investment of monies in the fund shall be credited to the fund. Monies remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund.

(2) From and after July 1, 1993, each governmental entity other than political subdivisions shall participate in a comprehensive plan of self-insurance or one or more policies of liability insurance or combination of the two (2), all to be administered by the Department of Finance and Administration. The plan shall provide coverage to each of such governmental entities for every risk for which the board determines the respective governmental entities to be liable in the event of a claim or suit for injuries under the provisions of this chapter, including claims or suits for injuries from the use or operation of motor vehicles; the board may allow the plan to contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to governmental entities. The plan may also provide coverage for liabilities outside the provisions of this chapter, including, but not limited to, liabilities arising from Sections 1983 through 1987 of Title 42 of the United States Code and liabilities from actions brought in foreign jurisdictions, and the board shall establish limits of coverage for such liabilities. Each governmental entity participating in the plan shall make payments to the board in such amounts, times and manner determined by the board as the board deems necessary to provide sufficient funds to be available for payment by the board of the costs it incurs in providing coverage for the governmental entity. Each governmental entity of the state other than the political subdivisions thereof participating in the plan procured by the board shall be issued by the board a certificate of coverage whose form and content shall be determined by the board but which shall have the effect of certifying that, in the opinion of the board, each of such governmental entities is adequately insured.

Before July 1, 1993, the Board of Trustees of State Institutions of Higher Learning may provide liability coverage for each university, department, trustee, employee, volunteer, facility and activity as the board of trustees, in its discretion, shall determine advisable. If liability coverage, either through insurance policies or self-insurance retention is in effect, immunity from suit shall be waived only to the limit of liability established by the insurance or self-insurance program. From and after July 1, 1993, liability coverage established by the board of trustees must conform to the provisions of this section and must receive approval from the board. Should the board reject a plan, the board of trustees shall participate in the liability program for state agencies established by the board.

(3) All political subdivisions shall, from and after October 1, 1993, obtain a policy or policies of insurance, establish self-insurance reserves, or provide a combination of insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; a political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against a political subdivision relative to limits of liability under the Tort Claims Act. The policy or policies of insurance or self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All the plans of insurance or reserves or combination of insurance and reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the board's approval of its plan, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance or reserves or combination of insurance and reserves to be approved by the board.

(4) Any governmental entity may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of the excess insurance carried; however, the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of excess liability insurance carried.

(5) Any two (2) or more political subdivisions may contract to pool their liabilities as a group under this chapter. The pooling agreements and contracts may provide for the purchase of one or more policies of liability insurance or the establishment of self-insurance reserves or a combination of insurance and reserves and shall be subject to approval by the board in the manner provided in subsections (2) and (3) of this section.

(6) The board shall have subrogation rights against a third party for amounts paid out of any plan of self-insurance administered by the board pursuant to this section on behalf of a governmental entity that is not a political subdivision as a result of damages caused under circumstances creating a cause of action in favor of such governmental entity against a third party. The board shall deposit in the Tort Claims Fund all monies received in connection with the settlement or payment of any claim, including proceeds from the sale of salvage.

(7) During fiscal year 2017, the board shall have full authority to assess agencies and governmental entities as per Section 11-46-19(1)(r).

§ 11-46-18

(1) There is created a board which shall be known as the Mississippi Tort Claims Board. The board shall consist of seven (7) members as follows:

(a) The Governor, subject to the advice and consent of the Senate, shall appoint one (1) member who shall serve at the will and pleasure of the Governor and who shall serve as chairman of the board.

(b) The Director of the Department of Environmental Quality or a designee.

(c) The Commissioner of Insurance or a designee.

(d) The Director of the Department of Finance and Administration or a designee shall be a member of the board, shall serve as the executive director to the board, and shall be authorized to conduct the administrative affairs of the board.

(e) The Attorney General or a designee.

(f) The Commissioner of Public Safety or a designee.

(g) The State Treasurer or a designee.

(2) The member of the board appointed by the Governor shall receive per diem as provided by Section 25-3-69 and reimbursement of travel expenses as provided in Section 25-3-41 for expenses incurred in carrying out his duties as a member of the Mississippi Tort Claims Board.

(3) The board, by majority vote, shall determine the place and time of its meetings and shall spread the same on its minutes. A majority of the members shall constitute a quorum, and final action of the board shall require the affirmative vote of a majority of those present and voting. The board shall elect a vice chairman who shall preside in the absence or incapacity of the chairman and such other officers as it deems necessary and as established by its rules of order. Extraordinary meetings may be held upon call of the chairman or upon petition of any four (4) members of the board should the chairman refuse to call a meeting. The initial meeting of the board shall convene upon call of the chairman.

(4) The Lieutenant Governor may designate one (1) Senator and the Speaker of the House of Representatives may designate one (1) Representative to attend any meeting of the Tort Claims Board. The appointing authorities may designate alternate members from their respective houses to serve when the regular designees are unable to attend such meetings of the board. Such legislative designees shall have no jurisdiction or vote on any matter within the jurisdiction of the board. For attending meetings of the board, such legislators shall receive per diem and expenses which shall be paid from the contingent expense funds of their respective houses in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem and expenses for attending meetings of the board will be paid while the Legislature is in session. No per diem and expenses will be paid, except for attending meetings of the board, without prior approval of the proper committee in their respective houses.

(5) If a member of the board appoints a designee to attend meetings of the board on the member's behalf, the member must inform the chairman of the board in writing of the name and contact information of the designee.

(6) The designee of any member of the board is authorized to take all action which the person making the designation is authorized to do under this chapter.

§ 11-46-19

(1) The board shall have the following powers:

(a) To provide oversight over the Tort Claims Fund;

(b) To approve any award made from the Tort Claims Fund;

(c) To pay all necessary expenses attributable to the operation of the Tort Claims Fund from such fund;

(d) To assign litigated claims against governmental entities other than political subdivisions to competent attorneys unless such governmental entity has a staff attorney who is competent to represent the governmental entity and is approved by the board; the board shall give primary consideration to attorneys practicing in the jurisdiction where the claim arose in assigning cases; attorneys hired to represent a governmental entity other than a political subdivision shall be paid according to the department fee schedule;

(e) To approve all claimants' attorney fees in claims against the state;

(f) To employ on a full-time basis a staff attorney who shall possess the minimum qualifications required to be a member of The Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of this chapter; the employees in the positions approved by the board shall be hired by the director, shall be employees of the department, and shall be compensated from the Tort Claims Fund;

(g) To contract with one or more reputable insurance consulting firms as may be necessary;

(h) To purchase any policies of liability insurance and to administer any plan of self-insurance or policies of liability insurance required for the protection of the state against claims and suits brought under this chapter;

(i) To expend money from the Tort Claims Fund for the purchase of any policies of liability insurance and the payment of any award or settlement of a claim against the state under the provisions of this chapter or of a claim against any school district, junior college or community college district, or state agency, arising from the operation of school buses or other vehicles, under the provisions of Section 37-41-42;

(j) To cancel, modify or replace any policy or policies of liability insurance procured by the board;

(k) To issue certificates of coverage to governmental entities, including any political subdivision participating in any plan of liability protection approved by the board;

(l) To review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions if such plan is intended to serve as security for risks of claims and suits against them for which immunity has been waived under this chapter;

(m) To administer disposition of claims against the Tort Claims Fund;

(n) To withhold issuance of any warrants payable from funds of a participating state entity should such entity fail to make required contributions to the Tort Claims Fund in the time and manner prescribed by the board;

(o) To develop a comprehensive statewide list of attorneys who are qualified to represent the state and any employee thereof named as a defendant in a claim brought under this chapter against the state or such employee;

(p) To develop a schedule of fees for paying attorneys defending claims against the state or an employee thereof;

(q) To adopt and promulgate such reasonable rules and regulations and to do and perform all such acts as are necessary to carry out its powers and duties under this chapter;

(r) To establish and assess premiums to be paid by governmental entities required to participate in the Tort Claims Fund;

(s) To contract with a third-party administrator to process claims against the state under this chapter;

(t) To annually submit its budget request to the Legislature as a state agency;

(u) To dispose of salvage obtained in settlement or payment of any claim at fair market value by such means and upon such terms as the board may think best; and

(v) Repealed.

(2) Policies of liability insurance purchased for the protection of governmental entities against claims and suits brought under this chapter shall be purchased pursuant to the competitive bidding procedures set forth in Section 31-7-13.

(3) The department shall have the following powers and duties:

(a) To annually report to the Legislature concerning each comprehensive plan of liability protection established pursuant to Section 11-46-17(2). Such report shall include a comprehensive analysis of the cost of the plan, a breakdown of the cost to participating state entities, and such other information as the department may deem necessary.

(b) To provide the board with any staff and meeting facilities as may be necessary to carry out the duties of the board as provided in this chapter.

(c) To submit the board's budget request for the initial year of operation of the board in order to authorize expenditures for the 1993-1994 fiscal year and for the appropriation of such general funds as shall be required for the commencement of its activities.

§ 11-46-20

(1) The Tort Claims Board shall be charged with the responsibility to regulate all liability coverage of governmental entities required to have certificates of coverage under this chapter which elect to provide the same through a public entity group or individual self-insurance program. This regulation shall be accomplished through an initial approval as provided in Section 11-46-17 and by ongoing or annual review. Each self-insurance program shall annually submit to the Tort Claims Board the following items within ninety (90) days from the end of the group year:

(a) An audited financial statement;

(b) An actuarial valuation;

(c) Contracts with third-party administrators (if any);

(d) Excess insurance policies;

(e) A list of members and premiums due from and collected from each member; and

(f) Other data as may be required by the Tort Claims Board.

(2) Areas of regulation under this section shall include, but not be limited to, the following:

(a) Financial solvency;

(b) Rating plans, rates and rating basis;

(c) Assessment plans of public entity groups;

(d) Coverages offered and excluded;

(e) Deductibles and deductible credits;

(f) Proper purchase of excess insurance or reinsurance; and

(g) Review of losses, reserves and expenses annually.

(3) Individual self-insurers and group public entity self-insurers must provide the data requested for the purposes of this section in order to receive continuing approval of the Tort Claims Board and issuance of annual certificates of coverage to the governmental entities involved.

(4) The Tort Claims Board is authorized to assess and charge appropriate fees for the costs of regulation, as determined by the board, to the individual self-insurers and group public entity self-insurers being regulated.

(5) The Tort Claims Board is empowered to:

(a) Issue cease and desist orders;

(b) Require rate increases or decreases;

(c) Require assessments of members of group public entity self-insurers in such amounts as are authorized and required by the board;

(d) Require changes in excess insurance or reinsurance; or

(e) Take such other actions as deemed necessary by the board to carry out the provisions of this chapter.

§ 11-46-23

If any provision or clause of Chapter 46, Title 11, Mississippi Code of 1972, or application thereof is held invalid or unenforceable for any reason, such holding shall have no effect on any other provisions or applications of Chapter 46, Title 11, Mississippi Code of 1972, and to this end the provisions of Chapter 46, Title 11, Mississippi Code of 1972, are declared to be severable.

Chapter 47 Lis Pendens

§ 11-47-1

The clerk of the chancery court shall keep in his office, as a public record, a suitable book, to be called the “Lis Pendens Record.”

§ 11-47-3

When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled, in the county in which the real estate is situated, such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the lis pendens record, and note on it, and in the record, the hour and day of filing and recording.

§ 11-47-5

When the sheriff, United States marshal, or other officer, shall levy upon real estate by virtue of any process, unless it be in execution upon a judgment which is duly enrolled in the county where the real estate is situated, he shall file with the clerk of the chancery court of each county in which the real estate, or any part thereof, is situated, a notice of the levy, containing the names of the parties to the proceedings, the kind of process, and a description of the real estate levied on. The clerk shall file, record and note upon the notice and record, as required in Section 11-47-3.

§ 11-47-7

The clerk, upon filing and recording each notice, shall index the same, both directly and indirectly, under the name of each party, each plaintiff or complainant, against each defendant, and each defendant at the suit of each plaintiff or complainant.

§ 11-47-9

If a person beginning any such suit, by declaration, bill, or cross-complaint affecting real estate, or if an officer levying any process upon real estate, shall fail to have the required notice entered in the lis pendens record, such suit or levy shall not affect the rights of bona fide purchasers or incumbrancers of such real estate, unless they have actual notice of the suit or levy.

§ 11-47-11

Where the proceedings in or as to the suit or levy, notice of which has been entered in the lis pendens record, shall be terminated, whether on the merits or not, the court wherein the same were pending shall direct the clerk who has the record to make such entry therein as it shall prescribe, to give notice of the result of the proceedings and of the devolution of the real estate; and the clerk shall at once, on presentation thereof, file and record the prescribed entry and note the date of filing and recording on the record.

§ 11-47-13

If any clerk fail to perform any of the duties herein required of him, he shall be liable on his official bond to any party injured for all damages he may have sustained. If any sheriff, marshal, or other officer, fail to file the notice provided for in this chapter, upon the levy by him of any process on real estate, he shall be liable on his bond for all damages resulting therefrom.

§ 11-47-15

The lis pendens docket shall be ruled, and have printed at the top of the pages, or opposite page, the following headings for the columns, and the entries shall correspond with them, viz.: Names of plaintiffs; names of defendants; kind of suit or writ; when suit instituted or writ levied; in, or from what court; nature of the suit or writ; description of the land involved or levied on; date of filing and recording lis pendens notice; result of the suit or levy; and remarks.

Chapter 49 Rights and Duties of Attorneys, Generally

§ 11-49-1

Any attorney whose name is subscribed to or indorsed on any declaration or bill or petition in chancery, shall, on demand in writing, made by or on behalf of the defendant, declare forthwith, in writing, whether the suit has been brought by him, or with his authority or privity, and also the place of abode of the plaintiff; and if such attorney shall state that the suit was not brought by him, or with his authority or privity, or shall refuse to declare the place of abode of the plaintiff, then no further proceedings shall be taken in the action without leave of the court.

§ 11-49-3

Every attorney or counselor at law receiving money for his client, and failing or refusing to pay the same when demanded, may be proceeded against in a summary way, by motion before the circuit court of the county where such attorney or counselor usually resides, or where he may be found, or before the court in which the money was collected, in the same manner that sheriffs are liable to be proceeded against for money collected on execution, five days' notice of such motion being given. In addition to the principal and legal interest, damages at ten per centum on the amount thereof shall be awarded. In case the failure to pay over said money shall appear to have been wilful and without reasonable excuse, the court shall fine and imprison such attorney or counselor as for a contempt and strike his name from the roll and revoke his license, or may suspend his right to practice until the money shall be paid over.

§ 11-49-5

An attorney or counselor at law shall not be allowed any compensation as a witness in any cause in which he shall be concerned as attorney or counsel.

§ 11-49-7

Every attorney or counselor at law, practicing in any court in this state, shall be allowed, at all reasonable times, to inspect the papers and records relating to any suit in such court in which he may be concerned as attorney or counsel, without being compelled to take copies thereof. A clerk of any court may permit an attorney to take out of the office the papers in which he is interested, under such regulations as the court or the law may prescribe.

§ 11-49-9

A court shall not permit more than two attorneys to argue on one side, unless good cause be shown therefor.

§ 11-49-11

Any notice required in the progress of a suit or action, in any court of this state, shall be as valid and effectual when served on the attorney or solicitor of the party in that cause as if served on the party himself.

Chapter 51 Appeals

§ 11-51-3

An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree.

§ 11-51-9

The final decrees of chancery courts, and interlocutory orders or decrees named in this chapter, include such final or interlocutory decrees as may be made in matters testamentary and of administration, and in minors' business, and in cases of persons of unsound mind, unless it be otherwise expressly provided by a statute applicable to such cases.

§ 11-51-11

(1) A person ordered by any tribunal, except the Supreme Court, to be punished for a contempt, may appeal to the court to which other cases are appealable from said tribunal. Where the punishment is either a fine only, or jail confinement only, the appeal shall be allowed upon the posting of a bond, payable to the state, with sufficient sureties, not exceeding One Thousand Dollars ($1,000.00), conditioned to abide the results of the appeal. Where the punishment is both a fine and jail confinement, the appeal shall be allowed upon the posting of a bond, not exceeding Two Thousand Dollars ($2,000.00), conditioned to appear in the court to which the appeal is prosecuted and to abide the results of such appeal.

(2) The amount of the bonds provided for in subsection (1) of this section shall be fixed by the tribunal appealed from, shall be approved by the sheriff or other officer in whose custody the appellant may be and shall not be construed as a limitation on the amount of any fine which may be imposed.

(3) All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.

(4) The burden of proof in criminal contempt shall be proof beyond a reasonable doubt. A contemnor shall not be entitled to a jury trial unless the contemnor requests a jury trial and unless the fine exceeds Five Hundred Dollars ($500.00), or the imprisonment exceeds six (6) months.

§ 11-51-12

(1) A person ordered by any tribunal, except the Supreme Court, to be punished for a civil contempt, may appeal to the court to which other cases are appealable from said tribunal. If jail confinement is ordered to compel the payment of any monetary sum, the contemnor shall be allowed to appeal upon the execution of an appearance bond, payable to the appellee, with sufficient sureties, in the penalty of one hundred twenty-five percent (125%) of such sum as he has been adjudicated in contempt for failure to pay, unless the court shall determine that a lesser bond should be required. The bond shall be conditioned to abide the results of the appeal.

(2) Where the punishment for civil contempt is other than jail confinement, the contemnor shall be allowed to appeal upon the posting of a bond, payable to the appellee, with sufficient sureties, to be approved by the tribunal appealed from, in an amount to be fixed by such tribunal, conditioned to abide the results of the appeal.

(3) All appeals allowed in accordance with the provisions of this section shall operate as a supersedeas.

(4) The burden of proof in civil contempt shall be proof by a preponderance of the evidence.

§ 11-51-17

Any one or more of the parties to a judgment or decree may appeal therefrom. If all the parties to a judgment after receiving notice thereof in the time required by the Supreme Court do not join the appeal, they shall not afterward have the right of appeal, and the judgment of the court below shall remain in full force against them.

§ 11-51-21

If the parties summoned to join in the appeal desire to do so, they must comply with the requirements to perfect an appeal as if they had appealed in the first instance, or they shall not be allowed to join in said appeal. Such compliance shall be made within the time required by the Supreme Court, and if a supersedeas bond be filed, may be approved by the Clerk of the Supreme Court, or the clerk of the court from whose judgment the appeal was taken, and certified and filed in the office of the Clerk of the Supreme Court.

§ 11-51-23

If only part of those against whom a judgment or decree is rendered appeal and supersede its execution, an execution may be issued against all, and the clerk issuing it shall note on it the fact of the supersedeas as to those who appeal, and it shall be executed only as to the others.

§ 11-51-27

An appeal may be granted by the court in all cases, upon terms prescribed, which shall include payment of all costs in the lower court.

§ 11-51-29

On appeals from decrees overruling demurrers or other interlocutory orders or decrees, or where the appeal is granted to settle the principles of the case, or on appeals from final judgments of a circuit court in civil cases, or from final decrees of a chancery court including cases where the circuit court or chancery court has acted as an appellate court, the appellant shall prepay all of the costs in the lower court including the cost of the preparation of the record of the proceedings in the trial court, and fee prescribed in Section 25-7-3, to the clerk of the court from which the appeal is taken.

§ 11-51-31

(1) A supersedeas shall not be granted in any case pending before the Supreme Court, unless the party applying for it shall give bond as required by the Rules of the Supreme Court.

(2) In civil litigation under any legal theory, the appeal bond to be furnished during the pendency of all appeals or discretionary reviews by any appellate courts in order to stay the execution of any judgment granting legal, equitable, or other relief during the entire course of appellate review shall be set in accordance with applicable laws or court rules, except that the total appeal bond or other forms of security that are required of an appellant shall be in the amount of the judgment, but not to exceed fifty percent (50%) of the net worth of the appellant, and in no event shall the appeal bond exceed Thirty-five Million Dollars ($35,000,000.00).

(3) Notwithstanding subsection (2) of this section, if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter orders that:

(a) Are necessary to protect the appellee; and

(b) Require the appellant to post a bond in an amount up to the total amount of the judgment.

(4) In this section:

(a) “Civil litigation” includes, without limitation, cases involving individual, aggregated, class action, or otherwise joined claims.

(b) “Legal, equitable, or other relief” means all forms of relief including, without limitation, compensatory, special, punitive, exemplary or other damages, injunctive relief, or any other form of relief.

(c) “Dissipation of assets” shall not include expenditures, including payments to the owners of a business, of a kind that the appellant made in the regular course of business prior to entry of the judgment being appealed.

(5) The provisions of this section shall apply to all judgments entered on or after July 1, 2016, regardless of the date the civil litigation was filed.

§ 11-51-33

To enable the clerk to determine the value or amount of the matter in controversy, or the value of rents, where the same shall not appear by the proceedings in the cause, he may examine the parties and other persons, on oath. He may also examine, on oath, all persons who may be offered as sureties on any supersedeas bond, touching their sufficiency as such sureties, and require the examination to be put in writing and signed by such persons.

§ 11-51-37

If the judgment or decree as to the land embraced in the stay of execution obtained under Section 11-51-35 shall be affirmed, the court below, on the receipt of the certificate of the affirmance, shall, after the obligors in the supersedeas bond have been summoned, proceed to inquire, as well of the value of the use and occupation of said land as of the damages by any waste or injury contemplated by the bond. Judgment for the sums assessed shall be rendered against the obligors in the bond, or such as are alive; and if any be dead, like proceedings in all respects may be had as are provided for in other cases of deceased obligors in bonds given in legal proceedings.

§ 11-51-39

If the judgment appealed from directs the sale or the delivery of possession of real estate, the supersedeas bond shall be conditioned to pay all damages, and not to commit or suffer to be committed any waste thereon, and to pay the value of the use and occupation thereof until the delivery of possession, in case the possession is to be surrendered, if the judgment appealed from shall be affirmed. In such case, the chancery court, when the cause shall be remanded, shall ascertain the value of the use and occupation and of any waste committed and the damages, and shall render such judgment therefor against the obligors in the supersedeas bond, or the representatives of any who have died, as may be necessary to secure the rights of the party entitled to such judgment. A judgment for the sums assessed shall be rendered against the obligors in the bond or such as are alive; and if any be dead, like proceedings may be had in all respects as provided for in other cases of deceased obligors in bonds given in legal proceedings.

§ 11-51-43

In any case of an appeal to the Supreme Court, where no special provision is made by law for a supersedeas of the judgment or decree appealed from, or for the bond to be given in such case, a supersedeas may be allowed by the court rendering the judgment or decree appealed from or by the judge thereof, or by the supreme court or any of the judges of said court, upon such bond, with such sureties as said court or judge may direct in the order for a supersedeas.

§ 11-51-45

In all cases not specially provided for, the supersedeas bond may be made payable to the state. Where it is provided that such bond shall be made payable to the opposite party, it shall not be an objection to the bond that it is not payable to the proper person, but such bond shall be valid and binding on the obligors, and may be proceeded on in all respects as if it were payable as directed by law.

§ 11-51-47

Supersedeas bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond; but if the decree or judgment be affirmed as to some and reversed as to others of said appellants, the judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the bond.

§ 11-51-49

Appeal bonds may be executed by a corporation by its authorized agent or attorney, in the name of the corporation, without affixing its corporate seal, and such bond, when so executed by the attorney of record of a corporation, shall be held and conclusively presumed to have been executed by the authority of such corporation.

§ 11-51-57

When the appellee's residence is unknown, and he has no attorney in this state, notice of the appeal may be published in the manner provided for by the Mississippi Rules of Civil Procedure for service by publication upon such persons, and the Supreme Court, being satisfied thereof, may hear and determine the appeal as if a summons had been duly served on the appellee.

§ 11-51-59

When an appeal shall be taken, and bond for stay of execution given, the clerk shall not issue execution on the judgment or decree appealed from until such stay shall end or be discharged. If execution had been issued before the bond for stay of execution was given, the clerk shall issue a command to the officer in whose hands the execution may be to desist from enforcing it, and to surrender any property seized under it to the person from whom it was taken or who may be entitled to it.

§ 11-51-65

If a case be remanded by the Supreme Court to the court below, and afterwards an appeal be taken in the same case to the Supreme Court, it shall not be necessary for the appellant to cause to be filed in the Supreme Court a transcript of so much of the record as may be already on file in said court, but the transcript previously sent up, together with a transcript of the subsequent proceedings in the case in the court below, shall constitute the record for the case in the Supreme Court. In such case, if the appellant shall, in his application for appeal, signify his desire for the clerk to make out and certify only a transcript of such subsequent proceedings, the clerk shall act accordingly.

§ 11-51-69

When prepayment for costs shall be made with a clerk, he shall certify the fact on the transcript of the record, and immediately pay the costs of the court reporter. When the case shall be determined, if costs be adjudged against the appellant, the clerk shall pay the remaining costs out of the money so deposited, and shall deliver the residue of the money, or all of it if costs be not adjudged against such party, to the party entitled to it; and for any failure thereof he shall be liable to be dealt with by the Supreme Court, or the court of which he is clerk, for a contempt.

§ 11-51-71

The clerk shall make a statement on the transcript of the record sent to the Supreme Court that the amount of his fee for such transcript has been paid to him; and, if he shall not do this, the Clerk of the Supreme Court shall not be required to demand and receive the same prior to filing the appeal.

§ 11-51-73

The provision that the clerk shall send up to the Supreme Court any bond taken is directory, and shall not preclude the rendition of judgment by the Supreme Court on a copy of such bond, but said court may give judgment on a copy of such bond as if the original were before it.

§ 11-51-75

Any person aggrieved by a judgment or decision of the board of supervisors of a county, or the governing authority of a municipality, may appeal the judgment or decision to the circuit court of the county in which the board of supervisors is the governing body or in which the municipality is located. A written notice of appeal to the circuit court must be filed with the circuit clerk within ten (10) days from the date at which session of the board of supervisors or the governing authority of the municipality rendered the judgment or decision. Upon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors or to the mayor or city clerk of the municipality and, if applicable, to any party who was a petitioner before the board of supervisors or the governing authority of the municipality.

(a) The notice of appeal filed in the circuit court with the circuit clerk shall contain the following:

(i) The name of the county board of supervisors or the name of the municipality as the appellee. If applicable, any party who was a petitioner before the board of supervisors or the governing authority of the municipality shall be named as an appellee.

(ii) A succinct statement of the reasons, or grounds, for the appeal.

(iii) A written description or designation of record which includes all matters that the appellant desires to be made part of the record.

(iv) Appellant must also deliver a copy of the notice of appeal and a written designation of the record, along with a list of all documents or transcripts in appellant's possession, to the clerk of the board of supervisors or to the clerk of the municipality.

(b) An appellee has ten (10) days from the filing of the notice of appeal with the circuit clerk to designate any other items or matters that appellee believes should be included in the designated record.

(c) The clerk of the board of supervisors or the municipal clerk must assemble a complete record of the proceedings to include all writings, matters, items, documents, plats, maps and transcripts of proceedings that were part of the record and deliver the complete record to the circuit clerk within thirty (30) days after the filing of the notice of appeal with the circuit clerk. The clerk of the board of supervisors or the municipal clerk shall certify that the record is accurate and complete and contains all writings, matters, items, documents, plats, maps and transcripts of proceedings designated by appellant and appellee in their designations of record.

(d) The circuit court, as an appellate court, either in term time or in vacation, shall hear and determine the same on the record and shall affirm or reverse the judgment. The circuit court shall enter an order establishing a briefing schedule and a hearing date, if any, for the parties to appear and present oral argument. If the judgment is reversed, the circuit court shall render such judgment or decision as the board of supervisors or the governing authority of the municipality ought to have rendered, and certify the same to the board of supervisors or the governing authority of the municipality. Costs shall be awarded as in other cases.

(e) No appeal to the circuit court shall be taken from any order of the board of supervisors or the governing authority of the municipality which authorizes the issuance or sale of bonds, but all objections to any matters relating to the issuance and sale of bonds shall be adjudicated and determined by the chancery court, in accordance with the provisions of Sections 31-13-5 through 31-13-11. And all rights of the parties shall be preserved and not foreclosed, for the hearing before the chancery court, or the chancellor in vacation.

§ 11-51-77

(1) Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten (10) days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term. The controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten percent (10%) on the amount in controversy and all costs. If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs.

(2) A political subdivision may appeal an assessment of taxes as provided in this subsection (2). Only the county attorney, the district attorney, the Attorney General, or the political subdivision acting through its attorney, if the state, county, municipality or political subdivision be aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town, or village as to the assessment of taxes, may, within twenty (20) days after the adjournment of the meeting at which such decision is made, or within twenty (20) days after the adjournment of the meeting at which the assessment rolls are corrected in accordance with the instructions of the Department of Revenue, or within twenty (20) days after the adjournment of the meeting of the board of supervisors at which the approval of the roll by the Department of Revenue is entered, appeal to the circuit court of the county in like manner as in the case of any person aggrieved as provided in subsection (1) of this section, except no bond shall be required, and such appeal may be otherwise governed by the provisions of this section.

§ 11-51-79

No appeals or certiorari shall be taken from any interlocutory order of the county court, but if any matter or cause be unreasonably delayed of final judgment therein, it shall be good cause for an order of transfer to the circuit or chancery court upon application therefor to the circuit judge or chancellor. Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided. Such appeal shall operate as a supersedeas only when such would be applicable in the case of appeals to the Supreme Court. Appeals should be considered solely upon the record as made in the county court and may be heard by the appellate court in termtime or in vacation. If no prejudicial error be found, the matter shall be affirmed and judgment or decree entered in the same manner and against the like parties and with like penalties as is provided in affirmances in the Supreme Court. If prejudicial error be found, the court shall reverse and shall enter judgment or decree in the manner and against like parties and with like penalties as is provided in reversals in the Supreme Court; provided, that if a new trial is granted the cause shall be remanded to the docket of such circuit or chancery court and a new trial be had therein de novo. Appeals from the county court shall be taken and bond given within thirty (30) days from the date of the entry of the final judgment or decree on the minutes of the court; provided, however, that the county judge may within said thirty (30) days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty (60) days from the date of the said final judgment or decree. Judgments or decrees of affirmance, except as otherwise hereinafter provided, may be appealed to the Supreme Court under the same rules and regulations and under the same penalties, in case of affirmance, as appertain to appeals from other final judgments or decrees of said courts, but when on appeal from the county court a case has been reversed by the circuit or chancery court there shall be no appeal to the Supreme Court until final judgment or decree in the court to which it has been appealed. When the result of an appeal in the Supreme Court shall be a reversal of the lower court and in all material particulars in effect an affirmance of the judgment or decree of the county court, the mandate may go directly to the county court, otherwise to the proper lower court. Provided, however, that when appeals are taken in felony cases which have been transferred from the circuit court to the county court for trial, and have been there tried, such appeals from the judgment of the county court shall be taken directly to the Supreme Court.

§ 11-51-81

All appeals from courts of justices of the peace, special and general, and from all municipal courts shall be to the county court under the same rules and regulations as are provided on appeals to the circuit court, but appeals from orders of the board of supervisors, municipal boards, and other tribunals other than courts of justice of the peace and municipal courts, shall be direct to the circuit court as heretofore. And from the final judgment of the county court in a case appealed to it under this section, a further appeal may be taken to the circuit court on the same terms and in the same manner as other appeals from the county court to the circuit court are taken: Provided that where the judgment or record of the justice of the peace, municipal or police court is not properly certified, or is not certified at all, that question must be raised in the county court in the absence of which the defect shall be deemed as waived and by such waiver cured and may not thereafter be raised for the first time in the circuit court on the appeal thereto; and provided further that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court.

§ 11-51-83

Either party aggrieved by the judgment of the justices rendered in a case of unlawful entry and detainer, may, after final judgment, appeal to the circuit court of the county, within five days after the rendition of the judgment, by entering into bond with sufficient sureties, to be approved by the justice before whom the complaint was made, or in his absence before another justice, who tried the case, in a penalty double the amount of the rent recovered, but never less than Two Hundred Dollars ($200.00), payable to the opposite party, conditioned for the payment of such judgment as the circuit court may render against him. Such appeal shall operate as a supersedeas. The justice shall send to the circuit court all the papers and proceedings, and a transcript of all orders and judgments in said cause, and shall deliver the same to the clerk of the circuit court, to be there docketed for trial. The circuit court shall, at the first term, hear and determine the cause anew on its merits, in a summary way. On the trial in the circuit court, the plaintiff may claim for all arrears of rent due at the time of such trial, or for the use and occupation of the premises up to that time. The court shall cause judgment to be entered against the defendant and his sureties on the appeal bond, for the amount found to be due, and award a fieri facias thereon, with legal interest and all costs; but the judgment against the surety shall not exceed the penalty of the appeal bond.

§ 11-51-85

Either party may appeal to the circuit court of the county from the judgment of any justice court judge if appeal be demanded and bond given within (10) days after the rendition of the judgment. The party taking the appeal shall give bond with a sufficient surety, to be approved by the clerk of the justice court payable to the opposite party, in the penalty of double the amount of the judgment, or double the value of the property involved, and all costs accrued and likely to accrue in the case, and in no case to be less than One Hundred Dollars ($100.00), conditioned for the payment of such judgment as the circuit court may render against him; and the appeal, when demanded and bond given, shall operate as a supersedeas of execution on such judgment. Any defendant against whom a civil judgment may have been entered by a justice court judge who, by reason of his poverty, is not able to give bond may nevertheless appeal from such judgment on his making an affidavit that, by reason of his poverty, he is unable to give bond or other security to obtain such appeal, but the appeal in such case shall not operate as a supersedeas of the judgment. The clerk of the justice court shall at once make up a transcript of the record and properly transmit the same to the clerk of the circuit court, within fifteen (15) days after the bond has been filed. In counties where there is a county court, appeals from justice courts shall be to the county court.

§ 11-51-87

The justice court judge may prepare and certify his record to the following effect, viz.:

“Copy of the record of the proceedings before __________, a justice court judge of __________ county, in the case therein set forth, to wit: (here copy the entries on the docket and certify as follows, viz.:)

“State of Mississippi, __________ County:

“I, __________, a justice court judge of the said county, certify that the foregoing is a copy of the record of the proceedings before me in the case stated therein, as appears on my docket.

“Given under my hand, this the ___ day of __________, A.D. __________.

Justice Court Judge”

§ 11-51-89

The justice of the peace, mayor or police justice of any city, town or village from whose decision an appeal shall be taken, shall at once transmit to the clerk of that court a certified copy of the record of the proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant, and the clerk shall docket the same, and shall be entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The justice, mayor, or police justice of any city, town or village shall, at all times, be allowed to amend his return according to the facts.

§ 11-51-91

On appeal from a justice of the peace court to the circuit court the case shall be tried anew, in a summary way, without pleadings in writing, at the first term, unless cause be shown for a continuance; provided, however, that the circuit court shall have the authority and power of its own motion or on motion of any party to require that defenses to the action shall be set up by way of answer in like manner as is required by Section 11-7-59, Mississippi Code of 1972.

If it appear on the trial that the suit was brought before a justice of the peace not having jurisdiction thereof, the circuit court shall reverse the judgment of the justice and dismiss the case. If the defendant be the appellant and judgment be rendered for the plaintiff in the original suit for a sum equal to or greater than he recovered before the justice of the peace, ten per cent (10%) damages upon the amount thereof shall be included in such judgment; and similarly, when there has been an appeal from a justice of the peace court to a county court, and any judgment against an appellant shall be rendered against the principal and his sureties jointly and when there shall be an appeal from the county court to the circuit court and the same shall be affirmed, then, there shall be added five per cent (5%) damages, and judgment shall be rendered against the principal and the sureties on the appeal bond jointly. In all such cases where the amount in controversy exceeds the sum of Fifty Dollars ($50.00), either party shall be entitled to an appeal to the supreme court as in cases originating in the circuit court, and the plaintiff may also appeal to the supreme court in cases where the difference between his demand and the judgment in his favor shall exceed said sum.

§ 11-51-93

All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same be apparent, or may then try the cause anew on its merits, and may in proper cases enter judgment on the certiorari or appeal bond, and shall, when justice requires it, award restitution. The clerk of the circuit court, on the issuance of a certiorari, shall issue a summons for the party to be affected thereby; and, in case of nonresidents, he may make publication for them as in other cases.

§ 11-51-95

Like proceedings as provided in Section 11-51-93 may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not. However, petitions for a writ of certiorari to the circuit court for review of a decision of a municipal civil service commission created under Section 21-31-1 et seq. or Section 21-31-51 et seq. shall be filed within thirty (30) days after the entry of the judgment or order of the commission.

§ 11-51-97

In all appeals and in proceedings of certiorari to the circuit court, the said court, on motion of the appellee or obligee, may inquire into the sufficiency of the amount of the bond, and of the security thereon, and may at any time require a new bond, or additional security, on pain of dismissal; and if any bond be defective, the principal therein may give a new one, which shall have the same effect as if given originally.

§ 11-51-99

The chancery court, in its discretion, may allow executors, administrators, guardians and conservators to appeal money or property judgments or orders against their wards or estates with supersedeas under any existing bond or one set for that purpose; but they shall pay the costs of the lower court including the Supreme Court filing fee.

§ 11-51-101

(1) The state and any county or municipality of the state, and the officials representing the state, county or municipality, in any suit or action, and any state, county or municipal officer who is a party to any suit or action in his official character, in which suit or action the state, county or municipality is beneficially interested, and the several incorporated charitable or educational institutions established and maintained by the state, and all corporate instrumentalities wholly owned by the United States government, shall be entitled to appeal from a judgment, decree, decision or order of any court or judge from which an appeal may be taken without prepayment of costs in the lower court; however, the cost of the preparation of the record of the proceedings in the trial court shall be prepaid. In any such case, if a supersedeas is allowed and desired, a bond for supersedeas shall not be required.

(2) Any person who is a party to a suit or action in his individual capacity, which suit arises from allegedly tortious actions and deeds committed by him during the time he was a member, trustee, director, superintendent, official or employee, as the case may be, of the Department of Corrections, the State Penitentiary or the state psychiatric hospitals or institutions, and which allegedly tortious acts and deeds were committed by the person in the performance of his duties or employment, shall be entitled to appeal from a judgment, decree, decision or order of any court or judge from which an appeal may be taken without prepayment of costs in the lower court, including the costs of the preparation of the record of the proceedings in the trial court. In those cases, if a supersedeas is allowed and desired, a bond for supersedeas shall not be required. The provisions of this section shall not apply to any such judgment, decree, decision or order in favor of the State of Mississippi.

§ 11-51-103

In all cases where an appeal is desired without bond, from a judgment of a justice of the peace, and in cases of unlawful entry and detainer, by parties who are not required to give bond therefor, a written demand for the appeal shall be filed, in lieu of the bond required of others, within the time allowed for appeal in such cases.

§ 11-51-111

In Harrison County, a county having two judicial districts, all appeals, writs of error or other like remedies may be taken and prosecuted from the circuit, chancery and county courts of either of said districts to the Supreme Court, in the same manner and to the same extent and on the same terms as appeals, writs of error and other like remedies are authorized to be taken from the circuit, chancery and county courts holden in the different counties of the state.

Chapter 53 Costs

§ 11-53-5

Security for costs may be given by recognizance entered into in open court, or by written undertaking indorsed on or filed with the papers in the cause, or by a deposit with the clerk of the court of the amount in cash or a certified check on any solvent bank in this state. The judgment, when rendered against the plaintiff or complainant, shall be rendered against the surety as well as against the plaintiff or complainant; and execution may be issued as in other cases for all costs for which the plaintiff or complainant may be liable in the cause. Additional security may be required by the court or the justice of the peace, if it appear that the security already taken is insufficient.

§ 11-53-7

The foregoing provisions as to securing or paying costs before suit brought, and requiring security for costs after suit commenced, and as to rendering judgment against the plaintiff and surety, shall apply to justices of the peace, and the courts held by them as such, or in proceedings in unlawful entry and detainer, or in any other proceeding; but in those courts the security, when required after the commencement of a suit, shall be given within ten days after the order of the court made for that purpose.

§ 11-53-9

In case of a deposit of money or certified check for costs, if the costs be adjudged against the party making the deposit, the clerk or justice shall pay the costs out of the deposit, and the residue to the party entitled thereto. If the party making the deposit be not liable for costs, the whole of the deposit shall be returned to him.

§ 11-53-11

The clerk or justice of the peace shall be liable on his official bond to all persons having any claim to or interest in any money so deposited for costs; and for failure to pay over the same, as required, to the person entitled to it, shall, besides any other penalty provided, be liable to be dealt with for contempt by the court in which the deposit was made. A deposit in the hands of a clerk or justice at the expiration of his term of office shall be delivered to his successor.

§ 11-53-13

Neither the state, nor any county, city, town, or village, nor any state board, nor any state, county, city, town, or village officer, suing in his official character, shall be required to pay costs before commencing a suit, nor to give security for costs before or after the commencement of a suit.

§ 11-53-15

In suits in the name of the state or any person for the use of another, the usee may be required to secure or pay the costs, and shall be liable therefor; and in no case shall the state, as a nominal plaintiff, be liable for costs.

§ 11-53-17

A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit:

“I, __________, do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or which I have begun, as the case may be) and that, to the best of my belief, I am entitled to the redress which I seek by such suit.”

§ 11-53-19

The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.

§ 11-53-21

In cases commenced or continued on an affidavit of poverty, the officers of the court shall perform all the duties required in the prosecution of the suit, and the witnesses shall attend until released; but in the case of failure to prosecute his suit to effect, judgment shall be given against the plaintiff for costs, and execution may be issued as in other cases.

§ 11-53-23

When a case shall be dismissed by any court for want of jurisdiction, judgment shall be rendered by such court for costs against the party who invoked the jurisdiction, as in other cases.

§ 11-53-25

The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.

§ 11-53-31

All costs accrued at the instance of the successful defendant in a suit, which cannot be collected out of the other party, may be collected from such defendant; and after return of “no property” on execution against a plaintiff or complainant against whom costs were adjudged, execution may be issued against the successful defendant for all cost accrued at his instance and not paid or collected from the other party. A successful plaintiff or complainant shall be liable for all the costs of the case accrued at his instance which cannot be collected from the defendants; and after return of “no property” on execution against the defendant against whom costs were adjudged, execution may be issued against the successful plaintiff or complainant for all the costs of the case accrued at his instance not paid or collected from the defendant. An unsuccessful plaintiff or complainant shall be liable for all the costs of the case.

§ 11-53-33

In actions of assault, assault and battery, libel and slander, if the plaintiff recover less than Ten Dollars ($10.00), costs shall not be awarded to him. In all other actions sounding in damages, where the plaintiff sues for more than Ten Dollars ($10.00) and recovers less than that sum, no more costs than the amount of damages recovered shall be awarded to him, unless the court be of the opinion that the plaintiff had reasonable cause to expect to recover more, and that the action was brought for no other purpose than to be compensated for the wrong done, and enter the same on its minutes. If more costs be awarded, the judgment may be amended on motion at any time.

§ 11-53-37

Where a party hereafter institutes a suit for the benefit of himself and all others similarly situated, and thereby there is in such suit recovered or preserved property or a fund for the common benefit, the chancery court may make an allowance to such party of the reasonable costs incurred, which costs shall include the necessary disbursements, and reasonable solicitor's fees, out of the property recovered or preserved for the common benefit.

§ 11-53-41

When costs are adjudged against an executor or administrator in a suit at law or in equity, and he shall obtain the certificate of the court before which the suit was tried that there was probable cause for bringing or defending the same, he shall not be individually liable for costs, although the estate may be insufficient to pay them.

§ 11-53-43

Executors and administrators shall be personally liable for the fees which accrue in the administration, and the estates in their hands shall be chargeable with such fees in preference to all other demands. It shall be lawful for the clerk of the chancery court to make out executions for the fees that may become due the officers of court or the publisher of a newspaper at any time in the administration of an estate. Every such execution shall have annexed to it a copy of the bill of costs, specifying the particular items thereof, to be enforced as in other cases.

§ 11-53-45

If in any case the plaintiff or complainant be an infant suing by next friend, such next friend shall be liable for costs.

§ 11-53-49

When a setoff is pleaded or filed and established, the defendant shall recover of the plaintiff his costs expended in establishing it, although judgment be rendered in favor of the plaintiff for a balance due him.

§ 11-53-51

In cases of appeal from a judgment of a justice of the peace, if the appeal be by the defendant, and judgment be rendered thereon for the plaintiff equal to or greater than that recovered by him before the justice of the peace, he shall recover of the defendant full costs; but if the judgment for plaintiff be less than that recovered by him before the justice of the peace, the court may, on motion of defendant, apportion the costs between the parties as may be proper, otherwise defendant shall be liable for all the costs. If the judgment on such appeal be rendered for the defendant, he shall recover of the plaintiff full costs. If the appeal be by plaintiff from a judgment rendered against him, and he recover judgment thereon, he shall recover of the defendant full costs; but if the defendant recover judgment thereon, he shall recover of plaintiff full costs. If a party appeal from a judgment in his favor, and does not obtain judgment for more than he recovered before the justice of the peace, he shall not recover costs that accrued on appeal, but shall be liable for such costs. But in such cases the circuit court, may, when the circumstances justify it, tax the costs to meet the ends of justice. In all cases where the principal is made liable for costs, judgment shall be rendered therefor against him and the sureties on his appeal bond jointly.

§ 11-53-53

In all cases of certiorari upon the judgment of any inferior court or tribunal, and the cases of appeal from the judgment of a board or supervisors, of a court of unlawful entry and detainer, of any municipal board or court, the successful party shall be entitled to recover full costs; but the circuit court may, when the circumstances of the case justify it, tax the costs to meet the ends of justice.

§ 11-53-55

If a case shall occur in any court not embraced expressly by statute, Mississippi Rules of Civil Procedure or Mississippi Supreme Court Rules, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper.

§ 11-53-65

When a cause shall be determined, the clerk of the court, and the justice of the peace in cases had before him, shall tax the costs of the case and make out a bill thereof, specifying therein each section of the law, and each paragraph or subdivision of section, if any, by virtue of which each fee or item of costs therein is charged or taxed, and he shall file the same with the papers in the cause.

§ 11-53-67

Fees and costs shall not be payable by any person until there be produced to the person chargeable with the same a bill, or account in writing, containing the particulars of such fees, signed by the clerk or officer, in which shall be intelligently expressed and specified each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each fee is charged. If any fee shall be paid without the production of such bill, the party paying the same shall at all times be entitled to demand and have from the officer receiving the same a copy of such bill without charge.

§ 11-53-69

The costs accruing upon suits in any court shall not be due until the final determination thereof, and may then be collected by execution; but the judges shall have power to order and adjudge costs and give decrees and judgments thereon in the progress of suits, as heretofore practised in said courts.

§ 11-53-71

The clerk of the circuit court is required to tax in the bill of costs, after final judgment, all the costs that accrued on the trial before a justice of the peace, or before any other inferior tribunal or court, in all cases carried to the circuit court by appeal or by certiorari, and include the same in the execution issued for the costs accruing in the case in the circuit court.

§ 11-53-73

It shall be lawful for the clerks of the several courts, when suits or causes are determined and the fees not paid by the party from whom they are due, to make out executions, directed to the sheriff or other proper officer of the county where the party resides; and the sheriff or other officer shall execute and return such execution as in other cases.

§ 11-53-75

On all executions in which any costs are included, there shall be entered thereon or annexed a copy of the bill of costs, specifying the particular items thereof, in intelligible words and figures, and each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each item therein is charged; and all such executions issuing without the copy of such bill of costs shall be illegal, and the sheriff or other officer shall not execute the same. The sheriff or other officer receiving the same shall add thereto, in like manner, his fees, including all additional fees and costs, and shall make out a fair copy of the same and deliver it, on demand, to the person from whom he receives the money or out of whose property he makes the same.

§ 11-53-77

It shall be the duty of the judges of the several courts to require the clerks to combine in one judgment or decree as many interlocutory or other orders as can be lawfully and conveniently done, with a view to prevent the increase of costs, and, on application of any party, to correct any incorrect bill of costs as charged and made out by a clerk.

§ 11-53-79

It shall be the duty of the clerks of the circuit and chancery courts, and of the sheriff, to post in a conspicuous place in his office, and each justice of the peace at his place of holding court, a copy of the bill of fees which he is entitled to receive, and on failure to do so he shall not be entitled to receive or collect any fee for any service rendered during the time of such failure.

§ 11-53-81

When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney's fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff. Evidence of receipt of written demand by the spouse of the debtor when they are living together as husband and wife on behalf of the debtor may be introduced as evidence of written demand on the debtor. If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge.

If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor, and if the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.

Chapter 55 Litigation Accountability Act of 1988

§ 11-55-1

This chapter may be cited as the “Litigation Accountability Act of 1988.”

§ 11-55-3

The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:

(a) “Without substantial justification,” when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that it is frivolous, groundless in fact or in law, or vexatious, as determined by the court.

(b) “Person” means any individual, corporation, company, association, firm, partnership, society, joint stock company or any other entity, including any governmental entity or unincorporated association of persons.

(c) “Action” means a civil action that contains one or more claims for relief, defense or an appeal of such civil action. For the purposes of this chapter only, an “action” also means any separate count, claim, defense or request for relief contained in any such civil action.

§ 11-55-5

(1) Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney's fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

(2) No attorney's fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense.

(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.

(4) No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that such party's action, claim or defense or any part of it was without substantial justification.

§ 11-55-7

In determining the amount of an award of costs or attorney's fees, the court shall exercise its sound discretion. When granting an award of costs and attorney's fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorney's fees and costs and the amount to be assessed:

(a) The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted, and the time remaining within which the claim or defense could be filed;

(b) The extent of any effort made after the commencement of an action to reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;

(c) The availability of facts to assist in determining the validity of an action, claim or defense;

(d) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;

(e) Whether or not issues of fact, determinative of the validity of a party's claim or defense, were reasonably in conflict;

(f) The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;

(g) The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;

(h) The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;

(i) The extent to which a reasonable effort was made to determine prior to the time of filing of an action or claim that all parties sued or joined were proper parties owing a legally defined duty to any party or parties asserting the claim or action;

(j) The extent of any effort made after the commencement of an action to reduce the number of parties in the action; and

(k) The period of time available to the attorney for the party asserting any defense before such defense was interposed.

§ 11-55-9

Nothing in this chapter shall be construed to prevent an attorney and his client from negotiating in private the actual fee which the client is to pay the client's attorney. Nothing in this chapter is intended to limit the authority of the court to approve written stipulations filed with the court or oral stipulations in open court agreeing to no award of attorney's fees or costs, or an award of attorney's fees or costs in a manner different than that provided in this chapter.

§ 11-55-11

This chapter shall apply in all cases unless attorney's fees are otherwise specifically provided by statute or court rule, in which case the provision allowing the greater award shall prevail.

§ 11-55-13

If any section, paragraph, sentence, phrase or any part of this chapter shall be held invalid or unconstitutional, such holding shall not affect any other section, paragraph, sentence, clause, phrase or part of this chapter which is not in and of itself invalid or unconstitutional. Moreover, if the application of this chapter, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this chapter to other persons or circumstances which can be given effect without the invalid provision or application.

§ 11-55-15

This chapter shall apply to any suit or claim or defense or appeal filed or perfected subsequent to July 1, 1988. It shall also apply to any suit or claim or defense or appeal which has been filed or perfected prior to July 1, 1988, and which is not dismissed within one hundred eighty (180) days after July 1, 1988.

Chapter 57 Structured Settlements

§ 11-57-1

This chapter shall be known and may be cited as the “Structured Settlement Protection Act.”

§ 11-57-3

The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:

(a) “Annuity issuer” means an insurer that has issued a contract to fund periodic payments under a structured settlement.

(b) “Dependents” include a payee's spouse and minor children and all other persons for whom the payee is legally obligated to provide support, including alimony.

(c) “Discounted present value” means the present value of future payments determined by discounting such payments to the present using the most recently published Applicable Federal Rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service.

(d) “Gross advance amount” means the sum payable to the payee or for the payee's account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from such consideration.

(e) “Independent professional advice” means advice of an attorney, certified public accountant, actuary or other licensed professional adviser.

(f) “Interested parties” means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee's death, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement.

(g) “Net advance amount” means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under Section 11-57-5(e).

(h) “Payee” means an individual who is receiving tax-free payments under a structured settlement and proposes to make a transfer of payment rights thereunder.

(i) “Periodic payments” includes both recurring payments and scheduled future lump-sum payments.

(j) “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of 26 USCS 130.

(k) “Responsible administrative authority” means, with respect to a structured settlement, any government authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement.

(l) “Settled claim” means the original tort claim or workers' compensation claim resolved by a structured settlement.

(m) “Structured settlement” means an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers' compensation claim.

(n) “Structured settlement agreement” means the agreement, judgment, stipulation or release embodying the terms of a structured settlement.

(o) “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement.

(p) “Structured settlement payment rights” means rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, where:

(i) The payee is domiciled in, or the domicile or principal place of business of the structured settlement obligor or the annuity issuer is located in, this state;

(ii) The structured settlement agreement was approved by a court or responsible administrative authority in this state; or

(iii) The structured settlement agreement is expressly governed by the laws of this state.

(q) “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement and any order or other approval of any court or responsible administrative authority or other government authority that authorized or approved such structured settlement.

(r) “Transfer” means any sale, assignment, pledge, hypothecation or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration; provided that the term “transfer” does not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered into with an insured depository institution, in the absence of any action to redirect the structured settlement payments to such insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce such blanket security interest against the structured settlement payment rights.

(s) “Transfer agreement” means the agreement providing for a transfer of structured settlement payment rights.

(t) “Transfer expenses” means all expenses of a transfer that are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including, without limitation, court filing fees, attorney's fees, escrow fees, lien recordation fees, judgment and lien search fees, finder's fees, commissions, and other payments to a broker or other intermediary; “transfer expenses” do not include preexisting obligations of the payee payable for the payee's account from the proceeds of a transfer.

(u) “Transferee” means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.

§ 11-57-5

Not less than three (3) days before the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold type no smaller than fourteen (14) points, setting forth:

(a) The amounts and due dates of the structured settlement payments to be transferred;

(b) The aggregate amount of such payments;

(c) The discounted present value of the payments to be transferred, which shall be identified as the “calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities,” and the amount of the Applicable Federal Rate used in calculating such discounted present value;

(d) The gross advance amount;

(e) An itemized listing of all applicable transfer expenses, other than attorney's fees and related disbursement payable in connection with the transferee's application for approval of the transfer, and the transferee's best estimate of the amount of any such fees and disbursements;

(f) The net advance amount;

(g) The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee; and

(h) A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by the payee.

§ 11-57-7

No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order or order of a responsible administrative authority based on express findings by such court or responsible administrative authority that:

(a) The transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents;

(b) The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing; and

(c) The transfer does not contravene any applicable statute or the order of any court or other government authority.

§ 11-57-9

Following a transfer of structured settlement payment rights under this chapter:

(a) The structured settlement obligor and the annuity issuer shall, as to all parties except the transferee, be discharged and released from any and all liability for the transferred payments;

(b) The transferee shall be liable to the structured settlement obligor and the annuity issuer:

(i) If the transfer contravenes the terms of the structured settlement, for any taxes incurred by such parties as a consequence of the transfer; and

(ii) For any other liabilities or costs, including reasonable costs and attorney's fees, arising from compliance by such parties with the order of the court or responsible administrative authority or arising as a consequence of the transferee's failure to comply with this chapter;

(c) Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two (2) or more transferees or assignees; and

(d) Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this chapter.

§ 11-57-11

(1) An application under this chapter for approval of a transfer of structured settlement payment rights shall be made by the transferee and may be brought in the county in which the payee resides, in the county in which the structured settlement obligor or the annuity issuer maintains its principal place of business, or in any court or before any responsible administrative authority which approved the structured settlement agreement.

(2) Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court or responsible administrative authority and serve on all interested parties a notice of the proposed transfer and the application for its authorization, including with such notice:

(a) A copy of the transferee's application;

(b) A copy of the transfer agreement;

(c) A copy of the disclosure statement required under Section 11-57-5;

(d) A listing of each of the payee's dependents, together with each dependent's age;

(e) Notification that any interested party is entitled to support, oppose or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and

(f) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee's notice in order to be considered by the court or responsible administrative authority.

§ 11-57-13

(1) The provisions of this chapter may not be waived by any payee.

(2) Any transfer agreement entered into on or after July 1, 2002, by a payee who resides in this state shall provide that disputes under such transfer agreement, including any claim that the payee has breached the agreement, shall be determined in and under the laws of this state. No such transfer agreement shall authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.

(3) No transfer of structured settlement payment rights shall extend to any payments that are life-contingent unless, prior to the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for (a) periodically confirming the payee's survival, and (b) giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee's death.

(4) No payee who proposes to make a transfer of structured settlement payment rights shall incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to be proposed transferee or any assignee based on any failure of such transfer to satisfy the conditions of this chapter.

(5) Nothing contained in this chapter shall be construed to authorize any transfer of structured settlement payment rights in contravention of any law or to imply that any transfer under a transfer agreement entered into before July 1, 2002, is valid or invalid.

(6) Compliance with the requirements set forth in § 11-57-5 and fulfillment of the conditions set forth in § 11-57-7 shall be solely the responsibility of the transferee in any transfer of structured settlement payment rights, and neither the structured settlement obligor nor the annuity issuer shall bear any responsibility for, or any liability arising from, noncompliance with such requirements or failure to fulfill such conditions.

§ 11-57-15

This chapter shall apply to any transfer of structured settlement payment rights under a transfer agreement entered into on or after August 1, 2002; provided, however, that nothing contained herein shall imply that any transfer under a transfer agreement reached before such date is either effective or ineffective.

Chapter 59 Uniform Interstate Depositions and Discovery Act

§ 11-59-1

This chapter may be cited as the Uniform Interstate Depositions and Discovery Act.

§ 11-59-3

In this chapter:

(1) “Foreign jurisdiction” means a state other than this state.

(2) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.

(3) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(4) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(5) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:

(A) Attend and give testimony at a deposition;

(B) Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

(C) Permit inspection of premises under the control of the person.

§ 11-59-5

(a) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this chapter does not constitute an appearance in the courts of this state.

(b) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under subsection (b) must:

(A) Incorporate the terms used in the foreign subpoena; and

(B) Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

§ 11-59-7

A subpoena issued by a clerk of court under Section 11-59-5 must be served in compliance with Rule 45 of the Rules of Civil Procedure.

§ 11-59-9

Rule 45 of the Mississippi Rules of Civil Procedure and Rule 2.01 of the Uniform Rules of Circuit and County Court Practice apply to subpoenas issued under Section 11-59-5.

§ 11-59-11

An application to the court for a protective order or to enforce, quash or modify a subpoena issued by a clerk of court under Section 11-59-5 must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.

§ 11-59-13

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§ 11-59-15

This chapter applies to requests for discovery in cases pending on July 1, 2011.

Chapter 61 Mississippi Religious Freedom Restoration Act

§ 11-61-1

(1) This section shall be known and may be cited as the Mississippi Religious Freedom Restoration Act.

(2) The Mississippi Legislature finds the following:

(a) The framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(b) Laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(c) Government should not substantially burden religious exercise without compelling justification;

(d) In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(e) The compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(3) The purposes of this section are as follows:

(a) To restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(b) To provide a claim or defense to persons whose religious exercise is substantially burdened by government.

(4) As used in this section, the following words shall have the following meanings:

(a) “Government” means any branch, department, agency, instrumentality or political subdivision of the State of Mississippi and any official or other person acting under color of law of the State of Mississippi.

(b) “Demonstrates” means to meet the burdens of going forward with the evidence and of persuasion.

(c) “Exercise of religion” means the exercise of religion under the First Amendment to the Constitution.

(5)(a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in paragraph (b) of this subsection.

(b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

(i) Is in furtherance of a compelling governmental interest; and

(ii) Is the least restrictive means of furthering that compelling governmental interest.

(6) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government, as defined by subsection (4) of this section. Standing to assert a claim or defense under this section shall be the same as the general rules of standing under Article III of the United States Constitution.

(7)(a) This section applies to all state laws, rules, regulations and any municipal or county ordinances, rules or regulations and the implementation of those laws, whether statutory or otherwise, and whether adopted before or after July 1, 2014.

(b) Any such law, rule, regulation or ordinances adopted after July 1, 2014, shall be subject to this section unless such law explicitly excludes such application by reference to this section.

(8) Nothing in this section shall be construed to authorize any government to burden any religious belief.

(9) Nothing in this section shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion. Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this section. As used in this subsection, the term “granting,” used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

(10) Nothing in this section shall create any rights by an employee against an employer if the employer is not the government.

§ 11-61-3

(1) The Legislature recognizes that the Mississippi Band of Choctaw Indians is the only federally recognized Indian tribe in the State of Mississippi, and the purpose of this section is to help further the state's recognition of the unique cultural heritage of federally recognized Indian tribes and the state's commitment to preserving the cultural integrity of federally recognized Indian tribes.

(2) A governmental entity may not prohibit an individual from wearing traditional tribal regalia or objects of cultural significance at a public event.

(3) For purposes of this section, the following definitions apply:

(a) “Individual” means a human being, regardless of age, who is a member or descendant of a federally recognized Indian tribe.

(b) “Governmental entity” means any branch, department, agency or instrumentality of state government, or any official or other person acting under color of state law, or any political subdivision of this state.

(c) “Political subdivision” has the meaning provided in Section 11-46-1.

(d) “Public event” means an event held or sponsored by a governmental entity, including, but not limited to, an award ceremony, a graduation ceremony or public meeting.

Chapter 62 Protecting Freedom of Conscience from Government Discrimination Act

§ 11-62-1

This chapter shall be known and may be cited as the “Protecting Freedom of Conscience from Government Discrimination Act.”

§ 11-62-3

The sincerely held religious beliefs or moral convictions protected by this chapter are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

§ 11-62-5

(1) The state government shall not take any discriminatory action against a religious organization wholly or partially on the basis that such organization:

(a) Solemnizes or declines to solemnize any marriage, or provides or declines to provide services, accommodations, facilities, goods or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3;

(b) Makes any employment-related decision including, but not limited to, the decision whether or not to hire, terminate or discipline an individual whose conduct or religious beliefs are inconsistent with those of the religious organization, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3; or

(c) Makes any decision concerning the sale, rental, occupancy of, or terms and conditions of occupying a dwelling or other housing under its control, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.

(2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.

(3) The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child, or who seeks from the state custody of a foster or adoptive child, wholly or partially on the basis that the person guides, instructs or raises a child, or intends to guide, instruct, or raise a child based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.

(4) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction described in Section 11-62-3. This subsection (4) shall not be construed to allow any person to deny visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law.

(5) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person has provided or declined to provide the following services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3:

(a) Photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or

(b) Floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.

(6) The state government shall not take any discriminatory action against a person wholly or partially on the basis that the person establishes sex-specific standards or policies concerning employee or student dress or grooming, or concerning access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings, based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3.

(7) The state government shall not take any discriminatory action against a state employee wholly or partially on the basis that such employee lawfully speaks or engages in expressive conduct based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3, so long as:

(a) If the employee's speech or expressive conduct occurs in the workplace, that speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed; or

(b) If the employee's speech or expressive conduct occurs outside the workplace, that speech or expressive conduct is in the employee's personal capacity and outside the course of performing work duties.

(8)(a) Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.

(b) Any person employed or acting on behalf of the state government who has authority to perform or solemnize marriages, including, but not limited to, judges, magistrates, justices of the peace or their deputies, may seek recusal from performing or solemnizing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 11-62-3. Any person making such recusal shall provide prior written notice to the Administrative Office of Courts, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The Administrative Office of Courts shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal.

§ 11-62-7

(1) As used in this chapter, discriminatory action includes any action taken by the state government to:

(a) Alter in any way the tax treatment of, or cause any tax, penalty, or payment to be assessed against, or deny, delay, revoke, or otherwise make unavailable an exemption from taxation of any person referred to in Section 11-62-5;

(b) Disallow, deny or otherwise make unavailable a deduction for state tax purposes of any charitable contribution made to or by such person;

(c) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any state grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, or other similar benefit from or to such person;

(d) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any entitlement or benefit under a state benefit program from or to such person;

(e) Impose, levy or assess a monetary fine, fee, penalty or injunction;

(f) Withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to any person; or

(g) Refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person employed or commissioned by the state government.

(2) The state government shall consider accredited, licensed or certified any person that would otherwise be accredited, licensed or certified, respectively, for any purposes under state law but for a determination against such person wholly or partially on the basis that the person believes, speaks or acts in accordance with a sincerely held religious belief or moral conviction described in Section 11-62-3.

§ 11-62-9

(1) A person may assert a violation of this chapter as a claim against the state government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the state government, any private person or any other party.

(2) An action under this chapter may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted available administrative remedies.

(3) Violations of this chapter which are properly governed by Chapter 46, Title 11, Mississippi Code of 1972, shall be brought in accordance with that chapter.

§ 11-62-11

An aggrieved person must first seek injunctive relief to prevent or remedy a violation of this chapter or the effects of a violation of this chapter. If injunctive relief is granted by the court and the injunction is thereafter violated, then and only then may the aggrieved party, subject to the limitations of liability set forth in Section 11-46-15, seek the following:

(a) Compensatory damages for pecuniary and nonpecuniary losses;

(b) Reasonable attorneys' fees and costs; and

(c) Any other appropriate relief, except that only declaratory relief and injunctive relief shall be available against a private person not acting under color of state law upon a successful assertion of a claim or defense under this chapter.

§ 11-62-13

A person must bring an action to assert a claim under this chapter not later than two (2) years after the date that the person knew or should have known that a discriminatory action was taken against that person.

§ 11-62-15

(1) This chapter shall be construed in favor of a broad protection of free exercise of religious beliefs and moral convictions, to the maximum extent permitted by the state and federal constitutions.

(2) The protection of free exercise of religious beliefs and moral convictions afforded by this chapter are in addition to the protections provided under federal law, state law, and the state and federal constitutions. Nothing in this chapter shall be construed to preempt or repeal any state or local law that is equally or more protective of free exercise of religious beliefs or moral convictions. Nothing in this chapter shall be construed to narrow the meaning or application of any state or local law protecting free exercise of religious beliefs or moral convictions. Nothing in this chapter shall be construed to prevent the state government from providing, either directly or through an individual or entity not seeking protection under this chapter, any benefit or service authorized under state law.

(3) This chapter applies to, and in cases of conflict supersedes, each statute of the state that impinges upon the free exercise of religious beliefs and moral convictions protected by this chapter, unless a conflicting statute is expressly made exempt from the application of this chapter. This chapter also applies to, and in cases of conflict supersedes, any ordinance, rule, regulation, order, opinion, decision, practice or other exercise of the state government's authority that impinges upon the free exercise of religious beliefs or moral convictions protected by this chapter.

§ 11-62-17

As used in this chapter, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(1) “State benefit program” means any program administered or funded by the state, or by any agent on behalf of the state, providing cash, payments, grants, contracts, loans or in-kind assistance.

(2) “State government” means:

(a) The State of Mississippi or a political subdivision of the state;

(b) Any agency of the state or of a political subdivision of the state, including a department, bureau, board, commission, council, court or public institution of higher education;

(c) Any person acting under color of state law; and

(d) Any private party or third party suing under or enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.

(3) “Person” means:

(a) A natural person, in his or her individual capacity, regardless of religious affiliation or lack thereof, or in his or her capacity as a member, officer, owner, volunteer, employee, manager, religious leader, clergy or minister of any entity described in this section;

(b) A religious organization;

(c) A sole proprietorship, or closely held company, partnership, association, organization, firm, corporation, cooperative, trust, society or other closely held entity operating with a sincerely held religious belief or moral conviction described in this chapter; or

(d) Cooperatives, ventures or enterprises comprised of two (2) or more individuals or entities described in this subsection.

(4) “Religious organization” means:

(a) A house of worship, including, but not limited to, churches, synagogues, shrines, mosques and temples;

(b) A religious group, corporation, association, school or educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship; and

(c) An officer, owner, employee, manager, religious leader, clergy or minister of an entity or organization described in this subsection (4).

(5) “Adoption or foster care” or “adoption or foster care service” means social services provided to or on behalf of children, including:

(a) Assisting abused or neglected children;

(b) Teaching children and parents occupational, homemaking and other domestic skills;

(c) Promoting foster parenting;

(d) Providing foster homes, residential care, group homes or temporary group shelters for children;

(e) Recruiting foster parents;

(f) Placing children in foster homes;

(g) Licensing foster homes;

(h) Promoting adoption or recruiting adoptive parents;

(i) Assisting adoptions or supporting adoptive families;

(j) Performing or assisting home studies;

(k) Assisting kinship guardianships or kinship caregivers;

(l) Providing family preservation services;

(m) Providing family support services; and

(n) Providing temporary family reunification services.

§ 11-62-19

The provisions of this chapter shall be excluded from the application of Section 11-61-1.

Chapter 63 Application of Foreign Law

§ 11-63-1

(1) In this section, “foreign law” means any law, rule, legal code or legal system other than the constitution, laws and ratified treaties of the United States and the territories of the United States, the constitution and laws of another state of the United States, Native American tribal law, the Mississippi Constitution of 1890, and the laws of this state.

(2) A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Chapter 65 Enforcement of Federal Laws, Orders, Rules

§ 11-65-1

No federal executive order, agency order, law not enrolled by the United States Congress and signed by the President of the United States, rule, regulation or administrative interpretation of a law or statute issued, enacted or promulgated after July 1, 2016, that violates the United States Constitution or the Mississippi Constitution of 1890 shall be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof.

Chapter 67 Asbestos Bankruptcy Trust Claims Transparency Act

§ 11-67-1

This chapter may be cited as the “Asbestos Bankruptcy Trust Claims Transparency Act.”

§ 11-67-3

(1) The Legislature finds and determines that:

(a) Asbestos is a mineral that was widely used for insulation, fireproofing, and other purposes;

(b) Exposure to asbestos has been causally associated with mesothelioma and lung cancer, as well as nonmalignant conditions such as asbestosis, pleural plaques, and diffuse pleural thickening;

(c) Approximately one hundred (100) employers have declared bankruptcy at least partially due to asbestos-related liability;

(d) Over ten thousand (10,000) companies have been named as asbestos defendants, including many small- and medium-sized companies, in industries that cover eighty-five percent (85%) of the United States economy;

(e) Scores of trusts have been established in asbestos-related bankruptcy proceedings to form a multibillion dollar asbestos bankruptcy trust compensation system outside of the tort system, and new asbestos trusts continue to be established;

(f) Asbestos plaintiffs often seek compensation both from solvent defendants in civil actions and from trusts or claims facilities formed in asbestos-related bankruptcy proceedings;

(g) There is limited coordination and transparency between these two (2) paths to recovery, which has resulted in the suppression of evidence in asbestos actions; and

(h) Justice is promoted by transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions.

(2) Now, therefore, it is the intent of the Legislature to:

(a) Provide transparency with respect to asbestos bankruptcy trust claims in civil asbestos actions by creating a substantive right for defendants to obtain bankruptcy trust discovery;

(b) Reduce the opportunity for oversight or suppression of evidence in asbestos actions; and

(c) Enhance the ability of courts to oversee and manage asbestos cases.

§ 11-67-5

The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:

(a) “Asbestos” includes, without limitation, chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, and any of these minerals that have been chemically treated or altered, including all minerals defined as asbestos in 29 CFR 1910 at the time the asbestos action is filed.

(b) “Asbestos action” means a claim for damages or other civil or equitable relief presented in a civil action by a plaintiff arising out of, based on, or related to the health effects of exposure to asbestos, including, but not limited to, loss of consortium, wrongful death, mental or emotional injury.

(c) “Asbestos trust” means a government-approved or court-approved trust, qualified settlement fund, compensation fund or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. 524(g) or 11 U.S.C. 1121(a) or other applicable provision of law, that is intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos.

(d) “Asbestos trust claim” includes, but is not limited to, any claim or demand for compensation for asbestos-related injuries from an asbestos trust.

(e) “Plaintiff” means the exposed person, deceased or living, and the person bringing the asbestos action, including a personal representative if the asbestos action is brought by an estate, or a conservator or next friend if the asbestos action is brought on behalf of a minor or legally incapacitated individual.

(f) “Trust materials” means a final executed proof of claim and all other documents and information related to a claim against an asbestos trust and any other information that the plaintiff submits to the asbestos trust, including claims forms and supplementary materials, affidavits, correspondence, depositions and trial testimony, work history, medical and health records, documents reflecting the status of a claim against an asbestos trust, and, if the trust claim has settled, all documents relating to the settlement of the trust claim.

(g) “Trust governance documents” means all documents that relate to eligibility and payment levels, including, but not limited to, claims payment matrices, trust distribution procedures, or plans for reorganization, for an asbestos trust.

§ 11-67-7

(1) Within thirty (30) days after an asbestos action is filed, or by August 1, 2017, whichever is later, the plaintiff shall do all of the following:

(a) Provide the court and parties with a sworn statement signed by the plaintiff, under penalties of perjury, that all asbestos trust claims that can be made by the plaintiff have been filed and that includes the following:

(i) A statement that an investigation of all asbestos trust claims has been conducted;

(ii) A list identifying each asbestos trust claim that has been filed by the plaintiff;

(iii) A list identifying each asbestos trust claim that can be made by the plaintiff, which has not been filed for the sole permissible reason that the cost of submitting an asbestos trust claim exceeds the plaintiff's reasonably anticipated recovery; and

(iv) Whether there has been a request to defer, delay, suspend, toll, withdraw, or otherwise alter the standing of any asbestos trust claim, and provide the status and disposition of each asbestos trust claim.

(b) Provide all parties with all trust materials, including trust materials that relate to conditions other than those that are the basis for the asbestos action and including all trust materials from all law firms connected to the plaintiff in relation to exposure to asbestos, including anyone at a law firm involved in the asbestos action, any referring law firm, and any other firm that has filed an asbestos trust claim for the plaintiff. Documents should be accompanied by a custodial affidavit from the asbestos trust, certifying that the trust materials submitted to defendants are true and complete.

(c) If the plaintiff's asbestos trust claim is based on secondary exposure to asbestos through another individual or individuals, the plaintiff shall produce all trust materials submitted by the other individual or individuals to any asbestos trusts if the materials are available to the plaintiff or the plaintiff's counsel.

(2) The plaintiff has a continuing duty to supplement the information and materials required under subsection (1) and the supplementation shall be made no later than thirty (30) days after the plaintiff supplements an existing asbestos trust claim, receives additional information or materials related to an asbestos trust claim, or files an additional asbestos trust claim.

(3) The court may dismiss the asbestos action if the plaintiff fails to comply with this section.

(4) An asbestos action may not be set for trial until at least one hundred eighty (180) days after the requirements of subsection (1) are met.

(5) Not less than thirty (30) days before trial in an asbestos action, the court shall enter into the record a document that identifies every asbestos trust claim made by the plaintiff.

§ 11-67-9

(1) A defendant may file a motion requesting a stay of the proceeding on or before the later of the sixtieth day before the date of trial in the action is set to commence or any other such time for which the defendant has a good faith reasonable basis to request a stay. The motion shall identify the asbestos trust claims not previously identified that the defendant believes the plaintiff can file and include information supporting the asbestos trust claims.

(2) Within ten (10) days of receiving the defendant's motion, the plaintiff shall:

(a) File the asbestos trust claims; or

(b) File a written response with the court requesting a determination that the cost to file the asbestos trust claims exceeds the plaintiff's reasonably anticipated recovery.

(3)(a) Subject to paragraph (b) of this subsection (3), if the court determines that there is a basis for the plaintiff to file an asbestos trust claim identified in the motion to stay, the court shall stay the asbestos action until the plaintiff files the asbestos trust claim and produces all related trust claims materials.

(b) If the court determines that the cost of submitting an asbestos trust claim exceeds the plaintiff's reasonably anticipated recovery, the court shall stay the asbestos action until the plaintiff files with the court and provides all parties with a verified statement of the plaintiff's history of exposure, usage, or other connection to asbestos covered by that asbestos trust.

(4) An asbestos action may not be set for trial until at least sixty (60) days after the plaintiff complies with the requirements of this section.

§ 11-67-11

(1) Trust materials and trust governance documents are presumed to be relevant and authentic, and are admissible in evidence in an asbestos action. A claim of privilege does not apply to any trust materials or trust governance documents.

(2) A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent at the time of asbestos trust identification, including, but not limited to, authorization for release of trust materials or other expression of permission that may be required by the asbestos trust to release information and materials sought by a defendant.

(3) Trust materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents are sufficient to support a jury finding that the plaintiff was exposed to products for which the trust was established to provide compensation and that, under applicable law, such exposure is a substantial contributing factor in causing the plaintiff's injury that is at issue in the asbestos action.

§ 11-67-13

(1) If the plaintiff files an asbestos trust claim after the plaintiff obtains a judgment in an asbestos action, and that asbestos trust was in existence at the time the plaintiff obtained the judgment, the trial court, on motion by a defendant or judgment debtor seeking sanctions or other relief, has jurisdiction to reopen the judgment in the asbestos action and adjust the judgment and order any relief to the parties that the court considers just and proper.

(2) A defendant or judgment debtor shall file any motion under this section within a reasonable time and not more than one (1) year after the judgment was entered.

§ 11-67-15

This chapter shall apply to all asbestos actions filed on or after July 1, 2017, and to all pending asbestos tort actions in which trial has not commenced as of July 1, 2017.

Chapter 69 Insurance Fraud

§ 11-69-1

(1) Except as otherwise provided in subsection (2) of this section, there shall be no civil liability imposed on and no cause of action shall arise against a person or entity for furnishing information concerning suspected or completed insurance fraud to any law enforcement, investigatory, prosecutorial or regulatory agent or agency, insurer, or statutory residual market plan. This shall not abrogate or modify common law or statutory privileges or immunities enjoyed by a person or entity. The prohibition of civil liability applies only to the act of reporting and does not limit civil liability against a person or entity for committing fraud or other tortious conduct.

(2) Subsection (1) of this section shall not apply to claims against persons where false statements were made in bad faith by persons furnishing information concerning suspected or completed insurance fraud. Any civil action brought against a person for filing a report or furnishing other information concerning insurance fraud shall be dismissed unless the party bringing the action has pleaded specifically that subsection (1) of this section does not apply because the person filing the report or furnishing the information did so in bad faith, and has pleaded specifically facts that support a claim of bad faith.

Chapter 71 Mississippi Back-To-Business Liability Assurance and Health Care Emergency Response Liability Protection Act Repealed

§ 11-71-1

<For expiration of this section, see Historical and Statutory Notes.>

This chapter shall be known and may be cited as the “Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act.”

§ 11-71-3

<For expiration of this section, see Historical and Statutory Notes.>

As used in this chapter, the following words shall have the following meanings:

(a) “COVID-19” means the novel coronavirus identified as SARS-CoV-2, the disease, health condition or threat caused by the novel coronavirus SARS-CoV-2, or a virus mutating therefrom, and conditions associated with the disease.

(b) “COVID-19 State of Emergency” means:

(i) A public health emergency related to COVID-19 declared by the United States Secretary of Health and Human Services under Section 319 of the Public Health Service Act (42 USC Section 247d);

(ii) A Presidential declaration of emergency related to COVID-19 under the National Emergencies Act or the Stafford Act; or

(iii) A state of emergency related to COVID-19 proclaimed by the Governor of the State of Mississippi under Section 33-15-11(b)(17).

(c) “Disinfecting or cleaning supplies” includes, but is not limited to, hand sanitizers, cleaners, disinfectants, sprays and wipes intended for use in removal or mitigation of bacterial or viral disease-causing agents from surfaces or spaces.

(d) “First responder” means state and local law enforcement personnel, fire department personnel, emergency medical personnel, ambulance service provider personnel, emergency management personnel and public works personnel who may be deployed in response to the COVID-19 state of emergency.

(e) “Health care facility” means:

(i) Any facility in which health care services are provided, including, but not limited to, any licensed or state-approved facility; or

(ii) Any field hospital, modular field-treatment facility or other facility designated by the State Department of Health or the Mississippi Emergency Management Agency for temporary use for the purpose of providing health care services related to the COVID-19 state of emergency.

(f) “Health care professional” means:

(i) A person who is licensed, registered, permitted, or certified in any state to provide health care services, whether paid or unpaid, including persons engaged in telemedicine or telehealth, and any employee, agent or contractor of such person;

(ii) An emergency medical technician who is licensed in any state; or

(iii) A volunteer or military personnel who is approved by or works under the direction of the State Department of Health or the Mississippi Emergency Management Agency and who provides health care services in response to the COVID-19 state of emergency in the State of Mississippi.

(g) “Health care services” means any care, treatment, service, or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition.

(h) “Person” means an individual, the state and political subdivisions as defined in Section 11-46-1, association, educational entity, for-profit or nonprofit entity, religious organization or charitable organization.

(i) “Personal protective equipment” means coveralls, face shields, gloves, gowns, masks, respirators or other equipment designed to protect the wearer from the spread of infection or illness.

(j) “Premises” means any physical place serving a commercial, residential, educational, religious, governmental, cultural, charitable or health care purpose.

(k) “Public health guidance” means written guidance related to the COVID-19 state of emergency that is issued by an executive agency or regulatory agency of the federal government or an executive agency of the State of Mississippi.

( l ) “Qualified product” means personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19; medical devices, equipment, and supplies used to treat a person with COVID-19, including products that are used or modified for an unapproved use to treat COVID-19 or prevent the spread of COVID-19; medical devices, equipment, or supplies utilized outside of the product's normal use to treat a person with COVID-19 or to prevent the spread of COVID-19; medications used to treat COVID-19, including medications prescribed or dispensed for off-label use to attempt to combat COVID-19; tests to diagnose or determine immunity to COVID-19 which have been approved by or submitted to the United States Food and Drug Administration (“FDA”) for approval within FDA-prescribed time periods; and components of qualified products.

§ 11-71-5

<For expiration of this section, see Historical and Statutory Notes.>

(1) A person, or agent of that person, who attempts in good faith to follow applicable public health guidance shall be immune from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19 in the course of or through the performance or provision of its functions or services.

(2) A person, or agent of that person, shall be immune from suit for civil damages for injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19 in the course of or through the performance or provision of its functions or services in the time before applicable public health guidance was available.

(3) An owner, lessee, occupant or any other person in control of a premises, who attempts, in good faith, to follow applicable public health guidance and directly or indirectly invites or permits any person onto a premises shall be immune from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19.

§ 11-71-7

<For expiration of this section, see Historical and Statutory Notes.>

(1) Any health care professional or health care facility shall be immune from suit for any injury or death directly or indirectly sustained because of the health care professional's or health care facility's acts or omissions while providing health care services related to a COVID-19 state of emergency. The immunity takes effect when the COVID-19 state of emergency is declared, applies to any health care services performed during the COVID-19 state of emergency, including any period of renewal or extension, and terminates one (1) year after the end of the COVID-19 state of emergency. The immunity includes, but is not limited to, injury or death resulting from screening, assessing, diagnosing or treating persons in relation to the COVID-19 state of emergency or the medical conditions causing the COVID-19 state of emergency, or acts or omissions while providing health care services to persons unrelated to the COVID-19 state of emergency when those acts or omissions were intended to support the state's response to the COVID-19 state of emergency, including, but not limited to, the following:

(a) Delaying or cancelling nonurgent or elective dental, medical or surgical procedures, or altering the diagnosing or treatment of any person in response to an order, directive or guideline issued by the federal, state or a local government;

(b) Diagnosing or treating patients outside the normal scope of the health care professional's license or practice;

(c) Using equipment or supplies outside of the product's normal use for medical practice and the provision of health care services, including using or modifying a medical device for an unapproved use or indication;

(d) Prescribing, administering or dispensing a pharmaceutical for off-label use to treat a patient in relation to a COVID-19 state of emergency;

(e) Conducting tests or providing treatment to any person outside of the premises of standard health care facilities; or

(f) Acts or omissions undertaken by a health care professional or health care facility because of a lack of staffing, facilities, equipment, supplies or other resources attributable to the COVID-19 state of emergency that make it impractical for the health care professional or health care facility to provide the level or manner of care to any person that otherwise would have been required in the absence of the COVID-19 state of emergency.

(2) This chapter shall be liberally construed with regard to immunizing health care professionals or health care facilities for acts or omissions undertaken while providing health care services related to a COVID-19 state of emergency.

§ 11-71-9

<For expiration of this section, see Historical and Statutory Notes.>

(1) A person who designs, manufactures, labels, sells, distributes, or donates a qualified product in response to COVID-19 shall be immune from suit for civil damages for any injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by a qualified product.

(2) A person who designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 outside the ordinary course of the person's business shall be immune from suit for civil damages for any injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by the disinfecting or cleaning supplies or personal protective equipment.

§ 11-71-11

<For expiration of this section, see Historical and Statutory Notes.>

(1) Notwithstanding any other provision of this chapter, the immunities provided in this chapter shall not apply where the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct.

(2) Nothing in this chapter:

(a) Creates, recognizes or ratifies a claim or cause of action of any kind;

(b) Eliminates a required element of any claim;

(c) Affects workers' compensation law, including the exclusive application of such law; or

(d) Amends, repeals, alters or affects any other immunity or limitation of liability.

§ 11-71-13

<For expiration of this section, see Historical and Statutory Notes.>

Except as otherwise provided in Section 11-46-11, a person must bring suit for any alleged injury arising from COVID-19 not later than two (2) years after the day the cause of action accrues.

Chapter 73 Civil Liability for Engaging in Human Trafficking

§ 11-73-1

For purposes of this chapter, the following words shall have the meanings ascribed herein unless the context requires otherwise:

(a) “Human trafficking” means the actions that constitute an offense under Section 97-3-54.1 or 97-3-54.3.

(b) “Venture” means any group of two (2) or more individuals associated in fact, whether or not a legal entity.

§ 11-73-3

(1) A defendant who engages in human trafficking or who willfully, intentionally and knowingly benefits from participating in a venture that trafficks another person is liable to the person trafficked, as provided by this chapter, for damages proximately caused by the trafficking of that person by the defendant or venture.

(2) The occurrence of human trafficking on the property of one not engaged in or benefitting from such human trafficking shall not, in and of itself, subject the property owner to liability under this chapter.

(3) It is not a defense to liability under this chapter that a defendant has been acquitted or has not been prosecuted or convicted under Section 97-3-54.1 or Section 97-3-54.4, or has been convicted of a different offense or of a different type or class of offense, for the conduct that is alleged to give rise to liability under this chapter.

(4) The cause of action created by this section is in addition to any other remedy provided by common law or statute.

(5) An action under this chapter shall be filed within:

(a) Three (3) years after the cause of action accrued; or

(b) Three (3) years after the claimant reaches the age of majority if at the time the cause of action accrued the claimant was a minor.

§ 11-73-5

A claimant who prevails in a suit under this chapter may be awarded:

(a) Compensatory damages;

(b) Court costs; and

(c) Reasonable attorneys' fees.

§ 11-73-7

A person who engages in human trafficking or who willfully, intentionally and knowingly benefits from participating in a venture that trafficks another person and who is found liable under this chapter for any amount of damages proximately caused by the trafficking is jointly liable with any other defendant found liable under this chapter for the entire amount of damages proximately caused by the trafficking.

§ 11-73-9

This chapter shall be liberally construed and applied to promote its underlying purpose to protect persons from human trafficking and provide adequate remedies to victims of human trafficking.

Chapter 75 Mississippi Architects and Engineers Good Samaritan Act

§ 11-75-1

(1) This section shall be known and may be cited as the “Mississippi Architects and Engineers Good Samaritan Act.”

(2) As used in this section, the following words shall have the meanings described in this section:

(a) “Building inspection official” means any appointed or elected federal, state, or local official with executive responsibility to coordinate building inspection in the jurisdiction in which the emergency or event has occurred;

(b) “Emergency” means an earthquake, eruption, flood, storm, hurricane, fire or other catastrophe that has been designated as a major disaster or emergency by the President of the United States, the Governor, or other public official, and shall include the terms “state of emergency” and “local emergency” as defined in Section 33-15-5;

(c) “Good Samaritan” means a professional engineer or a registered architect who performs safety assessment services only, and who provides such services uncompensated (other than reimbursement of expenses) at the scene of an emergency;

(d) “Law enforcement official” means any appointed or elected federal, state, or local official with executive responsibility to coordinate law enforcement in the jurisdiction in which the emergency or event has occurred;

(e) “Professional engineer” means a person duly licensed under the engineering licensure laws of a United States or Canadian jurisdiction as a professional engineer;

(f) “Public official” means any federal, state, or local official with executive responsibility in the jurisdiction in which the emergency or event has occurred;

(g) “Public safety official” means any appointed or elected federal, state, or local official with executive responsibility to coordinate public safety in the jurisdiction in which the emergency or event has occurred;

(h) “Registered architect” means a person duly licensed under the architectural licensure laws of a United States or Canadian jurisdiction as a registered architect; and

(i) “Safety assessment services” means inspection and evaluation of any structure, building, facility, project utility, equipment, machine, process, piping, or other system at the scene of an emergency related to structural integrity or nonstructural elements affecting life, safety and habitability.

(3)(a) Any registered architect or professional engineer who provides safety assessment services as a Good Samaritan at the request of or with the approval of a public official, law enforcement official, public safety official, or building inspection official acting in his or her official capacity as such shall be immune from liability from any civil action arising only from an act, service or omission performed in the course of providing safety assessment services as a Good Samaritan. The immunity provided in this section shall apply only to safety assessment services if such services: (i) occurred during the emergency or within ninety (90) days following the end of the period for the emergency, unless extended by an executive order; and (ii) if the architect or engineer was acting as a reasonably prudent person would have acted under the same or similar circumstances during a period of declared emergency, to include any other loss of any other nature related to the registered architect's or professional engineer's acts, errors or omissions in the performance of any architectural or engineering services for any structure, building or facility during the declared period of emergency.

(b) Architectural or engineering services beyond safety assessment services including, but not limited to, design of repairs, demolition plans, construction documents, or construction administration shall only be undertaken by an architect or professional engineer licensed in Mississippi.

(c) Nothing in this section shall be construed to provide immunity for wanton, willful, or intentional misconduct.

(4) Any architect or professional engineer not licensed in this state acting within the confines of this section as a Good Samaritan in order to perform safety assessment services shall be exempted from being required to be licensed as an architect or professional engineer in the State of Mississippi, but only to the extent of the services rendered for the period of time as provided for in subsection (4) of this section.

Chapter 77 Civil Liability for Distribution of Material Harmful to Minors on the Internet Absent Age Verification

§ 11-77-1

The Legislature finds that pornography contributes to:

(a) The hyper sexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders;

(b) An increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior;

(c) Difficulty in forming or maintaining positive, intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction; and

(d) A negative impact brain development and functioning, contribute to emotional and medical illnesses, shape deviant sexual arousal.

§ 11-77-3

The following words shall have the meanings described herein:

(a) “Commercial entity” includes corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized entities.

(b) “Distribute” means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means.

(c) “Internet” means the international computer network of both federal and nonfederal interoperable packet switched data networks.

(d) “Material harmful to minors” is defined as all of the following:

(i) Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.

(ii) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors:

1. Pubic hair, anus, vulva, genitals, or nipple of the female breast.

2. Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.

3. Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.

(iii) The material taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

(e) “Minor” means any person under the age of eighteen (18) years.

(f) “News-gathering organization” means any of the following:

(i) An employee of a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest, while operating as an employee as provided in this subparagraph, who can provide documentation of such employment with the newspaper, news publication, or news source.

(ii) An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee as provided in this subparagraph, who can provide documentation of such employment.

(g) “Publish” means to communicate or make information available to another person or entity on a publicly available internet website.

(h) “Reasonable age verification methods” include verifying that the person seeking to access the material is eighteen (18) years of age or older by using any of the following methods:

(i) Provide a digitized identification card;

(ii) Require the person attempting to access the material to comply with a commercial age verification system that verifies in one or more of the following ways:

1. Government-issued identification; or

2. Any commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the information is at least eighteen (18) years of age or older.

(i) “Substantial portion” means more than thirty-three and one-third (33- 1/3 ) percent of total material on a website, which meets the definition of “material harmful to minors” as defined by this section.

(j) “Transactional data” means a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event. Transactional data can include, but is not limited to, records from mortgage, education, and employment entities.

§ 11-77-5

(1) Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.

(2) Any commercial entity or third party that performs the required age verification shall not retain any identifying information of the individual after access has been granted to the material.

(3)(a) Any commercial entity that is found to have violated this section shall be liable to an individual for damages resulting from a minor's accessing the material, including court costs and reasonable attorney fees as ordered by the court.

(b) A commercial entity that is found to have knowingly retained identifying information of the individual after access has been granted to the individual shall be liable to the individual for damages resulting from retaining the identifying information, including court costs and reasonable attorney fees as ordered by the court.

§ 11-77-7

(1) The provisions of this chapter shall not apply to any bona fide news or public interest broadcast, website video, report, or event and shall not be construed to affect the rights of any news-gathering organizations.

(2) No internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated the provisions of this chapter for providing access or connection to or from a website or other information or content on the internet or a facility, system, or network not under that provider's control, including transmission, downloading, storage, access software, or other to the extent such provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors.