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CONNIE RAY EVANS v. STATE OF MISSISSIPPI

FEBRUARY 19, 1986

CONNIE RAY EVANS
v.
STATE OF MISSISSIPPI



ON PETITION FOR WRIT OF CERTIORARI TO THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

EN BANC.

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Petitioner Connie Ray Evans has filed a petition for certiorari, seeking to bring to this Court the record of proceedings filed by him in the Chancery Court of the First Judicial District of Hinds County, entitled" Motion for Deposition before Action or Pending Appeal. "On July 6, 1984, the lower court denied the motion, being of the opinion that it was without jurisdiction under Chapter 378, Mississippi Laws 1984, and Rule 81, Mississippi Rules of Civil Procedure, to entertain such an action, and further, that the petitioner failed to make an adequate showing that he could not commence the anticipated post-conviction collateral proceeding at the present time nor had he shown that the purpose of the petition was actually to perpetuate testimony rather than to merely obtain discovery.

 In addition, the petitioner filed a motion to consolidate this Misc. No. 1931 with No. 53,754, the Application for Leave to File Motion to Vacate, or Set Aside, Judgment and Sentence. We do not consolidate the two causes, but now proceed to a consideration of the petition for writ of certiorari.

 The post-conviction relief act provides that all post-conviction petitions are to be filed in the court which last exercised jurisdiction in the case. Mississippi Code Annotated 99-39-7 (Supp. 1985), and 99-35-145 (Supp. 1984) and Rule 8.07. Therefore, jurisdiction is vested in the Mississippi Supreme Court rather than a lower court. Cannady v. State, 455 So.2d 713 (Miss. 1984); Johnson v. State, 394 So. 2d 319 (Miss. 1981). This Court has not granted petitioner's request to proceed in the lower circuit court, and, on the other hand, has denied the Application for Leave to File Motion to Vacate, or Set Aside, Judgment and Sentence, in the opinion preceding this discussion.

 Petitioner, in the chancery court proceeding, relied upon Rule 27, Miss. Rules Civ. Proc., which provides in part, the following:

 (a) Before Action.

 (1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit or chancery court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and his interest therein, (3) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (4) the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

 See Miss. Code Ann. 13-1-227 (1972).

 In Arizona v. California, 292 U.S. 341, 54 S. Ct. 735, 78 L.Ed. 1298 (1934), discussing application of the rule, the United States Supreme Court said:

 The sole purpose of such a suit is to perpetuate the testimony. To sustain a bill of this character, it must appear that the facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined will be material in the determination of the matter in controversy; that the testimony will be competent evidence; that depositions of the witnesses cannot be taken and perpetuated in the ordinary methods prescribed by law, because the then condition of the suit (if one is pending) renders it impossible, or (if no suit is then pending) because the

 plaintiff is not in a position to start one in which the issue may be determined; and that taking of the testimony on bill in equity is made necessary by the danger that it may be lost by delay.

 292 U.S. at 347-349, 54 S. Ct. at 737-38, 78 L.Ed. 2d 1300-1301.

 Reasons for denying motions under Rule 27 include (1) that no adequate showing was made that the petitioner could not commence the anticipated action at the present time; [In Re Sims, 389 F.2d 148 (5th Cir. 1967); Application of Carson, 22 F.R.D. 64 (E.D.Ill. 1957); Petition of Johanson Glove Co., 7 F.R.D. 156 (E.D.N.Y. 1945)]; and (2) that the purpose of the petition was to obtain discovery rather than to to perpetuate testimony [In Re Sims, supra; Petition of Exstein, 3 F.R.D. 242 (S.D.N.Y. 1942); Petition of Ferkauf, 3 F.R.D. 89 (S.D.N.Y. 1943)]. Both of those reasons were obvious in the motion filed in ...


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