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CITY OF MOUND BAYOU v. ROY COLLINS CONSTRUCTION COMPANY INC.

SEPTEMBER 19, 1984

CITY OF MOUND BAYOU
v.
ROY COLLINS CONSTRUCTION COMPANY INC., AND D. D. FREELAND CONSTRUCTION COMPANY, D/B/A A JOINT VENTURE



BEFORE WALKER, P.J., ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

ON MOTION TO DOCKET AND DISMISS

This matter is before the Court today on Appellees' motion to docket and dismiss. At issue is whether an incorporated municipality may be exempt from our general rule *fn1 requiring that an appellant make a deposit for court costs in order to perfect its appeal. Also at issue is the extent to which our recently promulgated Rule 48, regulating the perfection of an appeal, supersedes the former statutory procedural requirements for designation of the record on appeal and giving notice thereof to the court reporter. *fn2

 These matters are not without importance, theoretical and practical, nor have their contours and answers heretofore been clear. We hope they may now become so.

 II.

 The procedural history of this case, in pertinent part, begins on April 23, 1984. On that date, the Circuit Court of the Second Judicial District of Bolivar County, Mississippi entered judgment in the amount of $215,679.47 in favor of Roy Collins Construction Company, Inc. and D. D. Freeland Construction Company, d/b/a A Joint Venture, (" Collins and Freeland "or sometimes" Appellees ") and against the City of

 Mound Bayou, Mississippi (" the City "), an incorporated municipality of the State of Mississippi.

 Twenty-eight days later, on May 21, 1984, the City filed with the Clerk of the Circuit Court its notice of appeal. On the same day, in lieu of prepayment of costs as ordinarily required by Rule 48 (h), the City of Mound Bayou filed with the Clerk of the Circuit Court a document which provides

 CERTIFICATE REQUIRED BY RULE 48 (h)(1) OF MISSISSIPPI SUPREME COURT RULES

 Comes now the city of Mound Bayou, defendant herein, by and through one of its attorneys of record, and estimates the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of transcript, to be $1,200.00. However, said sum is not being tendered to the Clerk of the Court at this time because under the provisions of Mississippi Code Annotated 11-51-101 (Supp. 1983), defendant city of Mound Bayou is entitled to appeal without prepaying the estimated cost.

 This 21st day of May, 1984.

 Respectfully submitted, CITY OF MOUND BAYOU BY:/s/ Tyree Irving

 TYREE IRVING Walls, Buck & Irving, Ltd. 163 North Broadway Street Post Office Box 634 Greenville, Mississippi 38702-0634 (601) 335-6001

 One of the Attorneys for the CITY OF MOUND BAYOU

 No deposit for costs was made and, apparently, no such deposit has been made to this date.

 Thereafter, on June 22, 1984 - some 32 days following the attempted perfection of the appeal - the City of Mound Bayou filed with the clerk of the Circuit Court a designation of the record on appeal which provides as follows:

 DEFENDANT'S DESIGNATION OF RECORD

 Now comes the city of Mound Bayou, by and

 through one of its attorneys of record, and designates the entire record, including all pleadings(both pretrial and postrial), discovery documents, witness testimony, proceedings in chambers, and opinions, decisions and orders of the Court, for inclusion in the record on appeal. Respectfully submitted,

 CITY OF MOUND BAYOU

 BY:/s/ Tyree Irving TYREE IRVING Walls, Buck & Irving, Ltd. 163 North Broadway Street Post Office Box 634 Greenville, ...


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