Before Prather, C.j., Smith And Mills, JJ.
The opinion of the court was delivered by: Prather, Chief Justice
DATE OF JUDGMENT: 08/29/97
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 3/11/1999
MOTION FOR REHEARING FILED:
¶1. On February 24, 1995, the County Court of Rankin County entered a judgment against appellant American Investors, Inc. ("AII") in a lawsuit filed by AII against Stanley and Carol King and Richard Young ("appellees"). AII perfected an appeal to the Circuit Court of Rankin County on June 26, 1995. On September 29, 1995, AII filed a petition for bankruptcy, which automatically stayed any acts to obtain possession of the property which was the subject of the litigation between AII and appellees. See: 11 U.S.C. § 362(a)(3). Based on the bankruptcy filing, AII did not file an appellant's brief with the Circuit Court by the October 1, 1996 deadline. ¶2. On March 4, 1996, the circuit court, finding that AII had failed to prosecute the appeal, entered on its own motion an order dismissing the appeal. The order, which was issued without prior notice to either party, provided that:
"This cause heard on the matter of dismissing the appeal on the grounds that the Appellant has failed to comply with Rules 4.00 et seq. of the Uniform Circuit Court Rules governing appeals from judgments of the County Court, and it appearing that the record was filed on July 7, 1995, that on September 21, 1995 the Appellant applied for and was granted a ten (10) day extension to file the required brief and assignment of errors but has failed to do so even though five months has now elapsed, the Court is of the opinion that the Appellant is in violation of the Rules and that under the opinions in the cases of Johnson Limited, Inc. v. Signa, 410 So.2d 1320 (Miss. 1982), Graham v. Murray, 359 So.2d 1370 (Miss. 1978) and Martin v. City of Waynesboro, 559 So.2d 1024 (Miss. 1990) the appeal should be dismissed."
Two days after the issuance of the circuit court's order dismissing AII's appeal, appellees flied a Motion to Dismiss AII's appeal with prejudice. On March 14, 1996, AII finally filed its brief and later filed a motion to set aside the dismissal of the appeal. On August 29, 1997, the circuit court entered an order denying AII's motion to set aside the dismissal, and AII timely appealed to this Court.
Whether Rules 2 (a)(2) and 31 (d) of the Mississippi Rules of Appellate Procedure, and series 4 and 5 of the Uniform Rules of Circuit and County Court Practice, which afford procedural due process with regard to discretionary dismissal of an appeal, supersede prior case law of Martin v. City of Waynesboro, 559 So.2d 1024 (Miss. 1990), and Graham v. Murray, 359 So.2d 1370 (Miss. 1978) which based upon series 4.00 of the Uniform Rules of Circuit Court, now superseded by the U.R.C.C.C. and the M.R.A.P. The distinction between the applicable rules and erroneous case law is the requirement of notice to a defaulting party and a provision of an opportunity to cure any default rather than summary dismissal without notice at the discretion of the appellate court.
¶3. The appellees have filed a motion confessing AII's appeal brief, and the error raised by AII is accordingly not contested by any party. All parties agree, and the record reveals, that the circuit court erred in dismissing AII's appeal based on Rules 4.00 et seq. of the former Uniform Circuit Court Rules. These rules have been superceded by the Uniform Rules of Circuit and County Court Practice ("URCCC") and the Mississippi Rules of Appellate ...