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TANDY ELECTRONICS, INC. d/b/a TANDY COMPUTER LEASING v. WAYNE A. FLETCHER d/b/a WAYNE A. FLETCHER ACCOUNTING

NOVEMBER 29, 1989

TANDY ELECTRONICS, INC. d/b/a TANDY COMPUTER LEASING
v.
WAYNE A. FLETCHER d/b/a WAYNE A. FLETCHER ACCOUNTING



ON MOTION TO DOCKET AND DISMISS APPEAL

EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

This case is before the Court on Appellee's motion to docket and dismiss. Appellant, Tandy Electronics, Inc., filed its notice of appeal one day late and the question is whether there are any credible or valid grounds on which we should decline to dismiss Tandy's appeal.

 On April 29, 1986, Tandy Electronics filed suit in the Circuit Court of Pearl River County against Wayne A. Fletcher Accounting seeking recovery of a balance due under a lease of computer equipment. On May 20, 1988, the case was heard and the jury returned a verdict for Tandy in the amount of $4,588.00 plus reasonable attorney's fees. After the jury was discharged, a judgment was entered on May 20, 1988, which included an award of attorney's fees in the sum of $1,376.00. This was far less than Tandy had sued for. Tandy filed no post-trial motions but did file its Notice of Appeal on June 21, 1988, thirty-two (32) days after entry of judgment.

 The following chronology reflects what happened:

 Trial and Jury Verdict May 12, 1988 Negotiations for settlement May 17, 1988

 Settlement offer rejected and Appellant's Attorney drafted order containing judgment May 19, 1988

 Judgment signed by Judge and entered May 20, 1988

 Notice of Appeal prepared June 16, 1988

 Notice of Appeal mailed June 20, 1988

 Notice of Appeal received and filed in Circuit Clerk's office June 21, 1988

 Thirty days ended on Sunday, June 19, 1988. According to a combined reading of Rules 4 and 26, Miss.Sup.Ct. Rules, Tandy had to file by the end of June 20, 1988. Tandy's notice was filed one day late.

 Tandy has since filed a Motion to File an Appeal Out-of-Time, which has been treated for purposes of this motion as a response to Fletcher's Motion to Dismiss Appeal. Tandy admits that its attorney failed to comply with the thirty-day requirement, and did file its Notice of Appeal one day late. Exactly why the notice was filed June 21 but not on June 20 we are not told. Apparently, Tandy has failed to avail itself of Mississippi Supreme Court Rule 4 (g) which allows the trial court to extend the time for filing a notice of appeal upon the showing of excusable neglect. Unfortunately, Rule 4 (g) would not be of any help to Tandy at this point in time.

 At least four of our rules are implicated. We begin with Rule 4 (a), Miss.Sup.Ct. Rules ...


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