OF JUDGMENT: 10/05/2015
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.
GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
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.
AND PROCEDURAL HISTORY
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,
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.
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.
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.
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.
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 ...