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JAMES H. TELFORD, ET UX v. SHELBY E. ALOWAY

AUGUST 24, 1988

JAMES H. TELFORD, ET UX
v.
SHELBY E. ALOWAY



BEFORE ROY NOBLE LEE, C.J., SULLIVAN & ANDERSON, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

On October 14, 1985, James and Louise Telford filed suit in the Circuit Court of Lafayette County, Mississippi, seeking $100,000.00 in actual and punitive damages from Shelby Aloway for injuries and damages arising out of an automobile accident. On May 6, 1986, a judgment was entered awarding James Telford $1,000.00 in damages and Louise Telford nothing.

The judgment that was entered by the circuit court on May 6, 1986, provided that the Telfords would have thirty days within which to file any post-trial motions. Defense counsel advised plaintiff's counsel of the ten day time limit prescribed by Rules 59 (b) and 6 (b), Miss. R. Civ. P. Defense counsel further advised that he would rely on that ten day time limit in opposing any post-trial motions filed by plaintiffs beyond that period. On May 28, 1986, twenty-two days after the judgment was entered, plaintiff filed his post-trial Motion for New Trial or Additur. Defendant responded asking that the Motion be stricken as untimely. At this time defense counsel advised Telford's counsel of the thirty day appeal period. The trial court declined to strike the Telfords' Motion for New Trial or Additur, but denied those motions on the merits on August 5, 1986. It was not until August 15, 1986, that the Telfords' notice of appeal was filed.

 Aloway argues before us that the ten day period for serving the Motion for New Trial begins to run from the day of entry of judgment, and that the Rule 6 (b), Miss. R.

 Civ. P. proscription concerning extension of the time limit is mandatory and jurisdictional. Under this argument the ten day time period could never be extended. Aloway further argues that the thirty day period within which the Telfords could file notice of appeal began to run on May 6, 1986, and had long since run out when the notice of appeal was filed on August 15, 1986.

 In answering the Motion to Docket and Dismiss the Telfords argue that under Rule 6 (b), Miss. R. Civ. P., the trial judge has discretion to allow additional time for the filing of post-trial motions. Also, the Telfords argue that the unique circumstances of this case do not warrant a strict application of the ten day rule.

 Rule 59 (b) provides as follows:

 Rule 59

 NEW TRIALS; AMENDMENT OF JUDGMENTS

 (b) Time for Motion. A motion for a new trial shall be served not later than ten days after the entry of the judgment.

 Rule 59 (b), Miss. R. Civ. P.

 The rule, by its terms, requires that the motion for new trial be served within ten days after the entry of the judgment. Further, the Comment to Rule 59 (b) provides as follows:

 The motion must be made within ten days after the entry of judgment (defined as the time of delivery to the clerk for filing; MRCP 58). This is a departure from prior Mississippi practice, National Cas. Co. v. Calhoun, 219 Miss. 9, 67 So. 2d 908 (1953) (new trial may be ordered any time prior to expiration of court term), and is authorized by MRCP 6 (c). This time limit is tolled by the service of the motion on all parties, rather than by the filing of same, see 11 ...


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