Bruce v. Bruce

587 So. 2d 898, 1991 WL 200798
CourtMississippi Supreme Court
DecidedOctober 2, 1991
Docket90-CA-0482
StatusPublished
Cited by69 cases

This text of 587 So. 2d 898 (Bruce v. Bruce) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruce v. Bruce, 587 So. 2d 898, 1991 WL 200798 (Mich. 1991).

Opinion

587 So.2d 898 (1991)

Emmitt Russell BRUCE
v.
Rebecca Annell S. BRUCE (Barnett).

No. 90-CA-0482.

Supreme Court of Mississippi.

October 2, 1991.

*899 Paul E. Rogers, Davis & Rogers, Jackson, for appellant.

Barry W. Gilmer, Gilmer Law Firm, Jackson, for appellee.

En Banc.

PETITION FOR REHEARING ON MOTION TO DISMISS

ROBERTSON, Justice, for the Court:

I.

This matter is before the Court on Petition for Rehearing of Rebecca Annell S. Bruce Barnett ("Barnett"), Appellee here, who seeks reconsideration and reversal of our decision and opinion of March 27, 1991. That opinion denied Barnett's Motion to Dismiss the appeal of her ex-husband, Emmitt Russell Bruce ("Bruce"). Central to Barnett's motion is her claim that Bruce has failed to file and serve an effective notice of appeal within the time allowed by law. The issue turns on when the time for filing notice of appeal began to run which, itself, turns on the correct legal characterization and effect of a post-trial motion Barnett filed below.

Upon review we find that our original opinion proceeded upon an erroneous premise — that Barnett's post-trial motion was one under Rule 60(b), Miss.R.Civ.P. Barnett's motion urged reconsideration of matters properly within the merits of her claim and was filed within ten legal days of the judgment. The order adjudging the matters the motion tendered became in law the final judgment. Bruce filed no notice of appeal within thirty days thereafter.

We grant the Petition for Rehearing, withdraw our previous opinion, and grant Barnett's Motion to Dismiss Bruce's appeal, for reasons presently to be stated.

II.

In 1975, the Chancery Court for the First Judicial District of Hinds County, Mississippi, entered its final judgment granting Rebecca Annell S. Bruce (Barnett) and Emmitt Russell Bruce a divorce and making extensive provisions for child custody, support, and the like. Several modification proceedings followed, of no consequence today.

On June 8, 1989, Barnett returned to the Chancery Court, filing her Motion For Contempt And Other Relief, raising a plethora *900 of issues. The matter proceeded to trial. Of importance, the Chancery Court, on April 20, 1990, entered and filed Judgment Modifying Former Decree and therein adjudged thirteen separate issues, ranging from custody, to medical insurance, to college expenses. On the sixth day thereafter — April 26, 1990 — Bruce filed in the Chancery Court his notice of appeal to this Court.

On the eleventh day — May 1, 1990 — Barnett filed and served a Motion To Amend Judgment. In that motion, Barnett said she was proceeding under Rule 59 and 60, Miss.R.Civ.P., and asked the Chancery Court to make "proper findings of fact relative to child support and set the commencement date for the payment of child support and accurately fix the payment of college expenses." On June 1, 1990, the Chancery Court entered an Order Amending Judgment which did in fact amend the April 20, 1990, Judgment, in accordance with Barnett's motion. The amendment affects only one of the thirteen paragraphs of the original Judgment. It effects no substantive change there, merely clarifying the time when Bruce's payments will be due. See Fultz v. Doss By Doss, 507 So.2d 891, 893 (Miss. 1987).

III.

A.

Barnett now says that Bruce's appeal should be dismissed. She says his Notice given April 26, 1990, was fatally premature and was ineffective to perfect an appeal. The reason this is so, according to Barnett, is that her May 1, 1990, motion operated to stay the running of the time for perfecting an appeal and that this stay related back to April 20, so that the thirty day time clock did not then begin to tick. Barnett says there was no appealable final judgment until the Order Amending Judgment was entered June 1, 1990, and that any notice filed prior to that time was legally ineffective to perfect an appeal. Bruce filed no notice of appeal within thirty days from June 1, 1990, and, because of this, Barnett says his appeal should be dismissed. See Rules 2(a)(1) and 4(d), Miss.Sup.Ct.Rules; Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308 (Miss. 1989).

The issue turns on whether Barnett's May 1, 1990, Motion to Amend Judgment was, in legal effect, a motion to alter or amend a judgment under Rule 59(e), Miss. R.Civ.P.,[1] or a motion for relief from judgment or order made under Rule 60(b), Miss. R.Civ.P.[2] If her motion was a Rule 59(e) *901 motion, other rules decree she must prevail here.

Barnett correctly perceives the matter as governed by the structure of Rule 4, Miss.Sup.Ct.Rules, fixing the time for filing notice of appeal.[3] Our general rule, of course, is that notice must be given within thirty days of the date of the entry of the judgment or order appealed from. Rule 4(a), Miss.Sup.Ct.Rules; Pittman v. Commonwealth National Life Insurance Co., 562 So.2d 73, 74 (Miss. 1990) ("more than six months passed"); Moore v. Wax, 554 So.2d 312, 313 (Miss. 1989) (one day late). A Rule 59 motion to alter or amend judgment or for a new trial interrupts the running of the thirty day time period. Rule 4(d)(iii) and (iv), Miss.Sup.Ct.Rules; King v. King, 556 So.2d 716, 721 (Miss. 1990) (Robertson, J., concurring). It stays the judgment and relates back, for all purposes resetting the appeals clock to the moment that judgment was entered and holding it there pending the motion. Rule 4(d) provides further:

A notice of appeal filed before the disposition of any of the above motions [including Rule 59(e) motions] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of a motion as provided above.

A notice of appeal given before the filing of a timely filed Rule 59 motion is similarly of no effect. See Ex Parte Andrews, 520 So.2d 507 (Ala. 1987).

The Supreme Court has explained the structure and theory of identically worded Federal Rules.

Rule 59(e) of the Federal Rules of Civil Procedure provides that a motion to "alter or amend the judgment" shall be filed within 10 days of the entry of judgment. Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that a notice of appeal filed [before or] while a timely Rule 59(e) motion is pending has no effect. Together, these Rules work to implement the finality requirement ... by preventing the filing of an effective notice of appeal until the District Court has had an opportunity to dispose of all motions that seek to amend or alter what otherwise might appear to be a final judgment.

Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74, 109 S.Ct. 987, 990, 103 L.Ed.2d 146, 153 (1989). Professor J.W. Moore has aptly described the effect of a Rule 59 motion on a previously filed notice of appeal: "The appeal simply self-destructs." 9 Moore's Federal Practice ¶ 204.12[1], p. 4-70, n. 17 (1989). The Supreme Court has consistently enforced this view. Osterneck v. Ernst & Whinney, supra; Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 60-61, 103 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
587 So. 2d 898, 1991 WL 200798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-bruce-miss-1991.