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Bolton v. Illinois Central Railroad Co. And Cliff Bishop

Court of Appeals of Mississippi

May 2, 2017

VIOLA BOLTON APPELLANT
v.
ILLINOIS CENTRAL RAILROAD COMPANY AND CLIFF BISHOP APPELLEES

          DATE OF JUDGMENT: 10/05/2015

         COURT FROM WHICH APPEALED ATTALA COUNTY CIRCUIT COURT C.E. MORGAN III TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: BRUCE L. BARKER LARRY STAMPS.

          ATTORNEYS FOR APPELLEES: ROMNEY H. ENTREKIN P. GRAYSON LACEY JR. BENJAMIN B. MORGAN.

          BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. The Circuit Court of Attala County dismissed Viola Bolton's claims against Illinois Central Railroad Company ("ICRC") and Cliff Bishop for untimely service of process. Bolton appeals the circuit court's dismissal. Bolton failed to timely appeal within the constraints of Mississippi Rule of Appellate Procedure 4; therefore, we find that her appeal is procedurally barred, thus divesting this Court of jurisdiction. Because our finding is dispositive, we decline to delve into the merits of the underlying dismissal. Therefore, we dismiss with prejudice.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On July 6, 2011, Bolton attempted to traverse a railroad crossing when she was struck by a train owned by ICRC and operated by Bishop, an employee of ICRC. Bolton waited to file her claims against ICRC and Bishop until July 3, 2014-three days before the three-year statute of limitations expired. Under Mississippi Rule of Civil Procedure 4(h), Bolton was required to serve the defendants before October 31, 2014, when her 120-day deadline under the rule would expire. It is undisputed that Bolton failed to issue summonses or serve either defendant prior to the October 31, 2014 deadline.

         ¶3. On November 3, 2014, Bolton filed a motion for additional time to complete service of process, and on November 4, 2014, the circuit court entered an order granting Bolton an additional ninety days to complete service. Under the order, Bolton's new deadline for service of process upon the defendants was February 1, 2015. It is again undisputed that Bolton failed to have summonses issued or serve either defendant prior to February 1, 2015.

         ¶4. On February 2, 2015, Bolton filed a second motion for additional time to complete service of process, and on February 6, 2015, the circuit court entered an order granting Bolton a second ninety-day extension. Under her second extension, Bolton's new deadline for service of process upon the defendants was May 7, 2015.

         ¶5. On April 24, 2015, some 295 days after she filed her lawsuit, Bolton had summonses issued for both defendants. On April 30, 2015, Bolton served Bishop within her second-ninety-day-extension deadline. On May 22, 2015, Bishop filed a motion to dismiss based on ineffective service of process, and Bolton responded on June 4, 2015.

         ¶6. However, on May 30, 2015, Bolton served ICRC twenty-three days after her second- ninety-day-extension deadline. On June 11, 2015, ICRC similarly filed a motion to dismiss based on ineffective service of process, to which Bolton responded on June 24, 2015.

         ¶7. The circuit court entered its order granting both defendants' motions to dismiss on October 7, 2015. The circuit court found that Bolton failed to show good cause for the substantial delay in service of process. Under Rule 4, Bolton was required to file her notice of appeal with the Attala County Circuit Clerk by November 6, 2015. M.R.A.P. 4. However, Bolton did not file ...


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