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TIFFANY MICHELLE CUNNINGHAM, A MINOR, BY AND THROUGH HER NEXT FRIEND, PATRICIA CUNNINGHAM, INDIVIDUALLY, AND CHARLES CUNNINGHAM v. ERNEST MITCHELL

DECEMBER 07, 1988

TIFFANY MICHELLE CUNNINGHAM, A MINOR, BY AND THROUGH HER NEXT FRIEND, PATRICIA CUNNINGHAM, INDIVIDUALLY, AND CHARLES CUNNINGHAM
v.
ERNEST MITCHELL, M.D.; A, B AND C, WHOSE IDENTITIES ARE UNKNOWN BUT WHO WILL BE ADDED BY AMENDMENT UPON DISCOVERY, JOINTLY AND SEVERALLY



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This matter raises questions regarding the time limitations within which a minor must perfect an appeal to this Court and the extent to which we may reconsider an order dismissing an appeal which has become final.

 II.

 The record before us reveals a tortured procedural history. We begin in the Circuit Court of Jackson County, Mississippi. On June 28, 1985, Tiffany Michelle Cunningham, an infant, by and through her next friend, Patricia Cunningham, her mother, filed her complaint in a cause of medical malpractice. Patricia Cunningham and Charles Cunningham, Tiffany's parents, joined as plaintiffs. Named as defendants were Dr. Ernest Mitchell and others to be joined later. The gravamen of the complaint was that on June 29, 1983, Dr. Mitchell and others negligently delivered the child, Tiffany, causing her personal injury.

 Various pre-trial wranglings ensued, primarily related to Dr. Mitchell's efforts to obtain discovery of and from

 plaintiffs. On October 15, 1985, the Circuit Court entered an order compelling discovery. Thereafter, on November 7, 1985, the Circuit Court found that plaintiffs had failed to comply with the October 15 order and finally dismissed the complaint. See Rule 37 (b) (2) (C), Miss.R.Civ.P.

 Some 29 days later, on December 6, 1985, the plaintiffs Cunningham filed a motion for relief of judgment, citing Rules 59 *fn1 and 60, Miss.R.Civ.P. in which they asked that the Court vacate the November 7 order of dismissal. As grounds for the motion, plaintiffs argued excusable neglect. On the same day, December 6, 1985, the plaintiffs Cunningham filed with the Circuit Court a notice of appeal to this Court. The notice designated the order compelling discovery of October 15, 1985, and the order of dismissal of November 7, 1985, as the orders appealed from.

 On January 3, 1986, the Circuit Court entered its order overruling and denying plaintiffs' motion for relief of judgment. No new notice of appeal was filed following the January 3, 1986, order.

 On July 9, 1986, Dr. Ernest Mitchell, as appellee, filed a motion to docket and dismiss appeal. On August 8, 1986, the Plaintiffs Cunningham filed their response to the motion and their brief in opposition. The record reflects that the notice of appeal was filed on December 6, 1985, some 29 days after the November 7 order of dismissal. Our rules in effect at the time provided that a notice of appeal would be filed within 30 days of entry of the order appealed from. *fn2 Notwithstanding, this Court entered its order granting Mitchell's motion to docket and dismiss on August 20, 1986.

 On September 9, 1986, the Plaintiffs Cunningham filed a new notice of appeal, again designating as the orders appealed from the October 15, 1985 order compelling discovery and the November 7, 1985 order dismissing their complaint. On the same day, Tiffany Michelle Cunningham filed her motion to reinstate appeal. The Court denied this motion without opinion on October 15, 1986. No petition for rehearing was filed.

 On November 18, 1987, the infant, Tiffany Michelle Cunningham, filed in the Circuit Court of Jackson County yet another notice of appeal. In this notice she designated as the orders appealed from the October 15, 1985 motion compelling discovery, the November 7, 1985 order of dismissal and the January 3, 1986 order overruling the motion for relief of judgment. Then on December 4, 1987, Tiffany Michelle Cunningham filed her motion to suspend rules and for

 reinstatement of cause to which Appellee Mitchell has ...


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