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ROGER C. LANDRUM, ET AL. v. EVELYN W. BAILEY

SEPTEMBER 04, 1985

ROGER C. LANDRUM, ET AL.
v.
EVELYN W. BAILEY, ET AL.



ON PETITION FOR REHEARING

HAWKINS, JUSTICE, DISSENTING:

I respectfully dissent in the Court's denial of

the Petition for Rehearing. I would reinstate the appeal.

 I do not think any major disagreement exists on the Court as to the law in this matter. The considerable division comes about from our difference of opinion in what ought to be done with the motion to permit an appeal perfected four days late.

 I did not dissent from the original opinion. Upon greater reflection I am convinced I was wrong.

 If this were a case where failure to take certain steps in a certain time in order to perfect an appeal was jurisdictional, the question would be quite different. Thus, there was a time when a State statute required the appellant to give notice to the court reporter to transcribe her notes within ten days from date of judgment, or adjournment of court; failure to comply with this statute was a jurisdictional defect, and this Court would be without authority to hear the appeal. Ashe v. Ballard, 78 So. 2d 476 (1955); In Re Simpson, 199 So. 2d 833 (1967); Mississippi State Highway Commission v. Brown, 250 Miss. 773, 162 So. 2d 508 (1964).

 Likewise, we have held that failure to perfect an appeal within the time provided by statute deprived this Court of jurisdiction. See: Shannon Chair Co. v. City of Houston, 295 So. 2d 753 (Miss. 1974); Fisher v. Crowe, 289 So. 2d 921 (Miss. 1974); Mississippi State Highway Commission v. First Methodist Church of Biloxi, Mississippi, Inc., 323 So. 2d 92 (Miss. 1975).

 There was no violation of any statute governing appeals in this case. The attempted appellants scrupulously followed the appeal statutes. Indeed, the statutes misled them into thinking they had forty-five days within which to perfect an appeal instead of thirty days. They perfected the appeal in eleven days less time than authorized by the statute.

 What these attempted appellants violated was a rule of this Court, not a jurisdictional statute, and we have all the authority we want to exercise in deciding whether to enforce or suspend any rule of this Court.

 This case was tried in the Chancery Court of the First Judicial District of Hinds County and judgment entered on January 18, 1985. Petitioners' attorneys advised their clients to notify them if an appeal was desired, and also that the appeal had to be perfected

 within forty-five days. Petitioners desired an appeal and so notified their counsel.

 On the thirty-fourth day after counsel took all steps necessary to perfect an appeal, except for the time, they learned of Rule 48. When they discovered their error they acted swiftly. On that very same day, February 22, 1985, petitioners filed a motion in this Court to permit an out-of-time appeal. The motion was contested, and this Court denied the motion. We said:

 We recognize that there are exceptional cases in which the rules should not be strictly applied. For a short period of time after the effective date of the adoption of the rules, the Court exercised some leniency in its application and enforcement under circumstances then existing.

 The bench and bar should have been aware of Rule 48 long ago. In order that the rule may be meaningful and workable, it must be enforced. The fact that some members of the bar honestly are not aware of the rule and its ...


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