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IN THE SUPREME COURT OF MISSISSIPPI
No. 89-R-99027-SCT
IN RE: MISSISSIPPI RULES OF APPELLATE PROCEDURE
ORDER
This matter is today before the Court, en banc, on suggestion of by Judge Leslie
Southwick of the
Mississippi Court of Appeals that attention should be given to a certain apparent
conflict between Rule 40
and Rule 17 of the Mississippi Rules of Appellate Procedure. Having considered
Judge Southwick's
comments, the Court has found that the fair and efficient administration of justice will
be promoted by
the amendment of Rule 40 as set forth herein.
IT IS, THEREFORE ORDERED that M.R.A.P. 40 and the comment thereto be
and the same is
amended to read as set forth in Appendix A hereto.
IT IS FURTHER ORDERED that the Clerk of this Court shall spread this Order
upon the minutes
of the Court and shall forthwith forward a true certified copy hereof to West
Publishing Company for
publication as soon as practical in the advance sheets of Southern Reporter, Second
Series (Mississippi
Edition) and in the next edition of Mississippi Rules of Court.
APPENDIX A
RULE 40. MOTION FOR REHEARING
(a) Time for Filing; Content; Answer; Action by Court if Granted. A motion for
rehearing may be filed within 14 days after a decision is handed down on the merits of
a case by the Supreme Court or the Court of Appeals. The motion shall state with
particularity the points of law or fact which, in the opinion of the movant, the court has
overlooked or misapprehended and shall contain such argument in support of the
motion as movant desires to present. The motion for rehearing should be used to call
attention to specific errors of law or fact which the opinion is thought to contain; the
motion for rehearing is not intended to afford an opportunity for a mere repetition of
the argument already considered by the court. Oral argument in support of the motion
will not be permitted.
A motion for rehearing in the Court of Appeals shall be heard by the panel which
rendered the judgment in the matter unless the Court of Appeals shall vote to consider
the matter en banc.
Within seven days after the filing of a motion for rehearing, any other party may,
but need not, file and serve a written response in opposition to the motion. Failure to
file a response within this time period waives the right to respond but does not confess
the arguments made in the motion. If a motion for rehearing is granted, the appropriate
court may make a final disposition of the cause without reargument or may restore it to
the calendar for reargument or resubmission or may make such other orders as are
deemed appropriate under the circumstances in a particular case.
After a motion for rehearing has been granted or denied, no further motion for
rehearing shall be filed by any party. After a motion for rehearing has been granted, a
party has the option of filing a second motion for rehearing within 14 days after the
judgment on rehearing.
(b) Form of Motion; Length. The motion shall be in a form prescribed by Rule
32 and in cases decided by the Supreme Court an original and nine (9) copies shall be
filed with the clerk of the Supreme Court, and in cases decided by the Court of
Appeals an original and ten (10) copies shall be filed. The Supreme Court or the Court
of Appeals may require that additional copies be furnished. The motion shall be served
as prescribed by Rule 31 for the service and filing of briefs. Except by permission of
the appropriate court a motion for rehearing shall not exceed twenty-five (25) pages.
(c) Disrespectful Language Stricken. Any motion for rehearing containing
language showing disrespect or contempt for either appellate court will be stricken, and
the appropriate court will take such further action as it may deem proper.
[Adopted to govern matters filed on or after January 1, 1995; amended June 21, 1996;
amended July 15, 1996; amended effective Octover 15, 1998; amended effective
January 1, 1999; amended effective April 13, 2000.]
Advisory Committee Historical Note
Effective April 13, 2000, Rule 40(a) and the Comment were amended to allow a
second motion for rehearing after a first motion for rehearing has been granted. So. 2d
(West Miss.Cases 2000).
Effective June 21, 1996, Rule 40 and the Comment were amended to redesignate
rehearing "petitions" as "motions." In addition, the Comment was further amended to
provide that "Motions for rehearing are limited to cases on the merits and motions
which have been decided by panels of the Court or by the court sitting en banc.
Motions for rehearing are not entertained upon motions decided by a single justice."
673-678 So.2d XLI-XLII and LXXXVIII (West Miss. Cases 1996).
Effective January 1, 1995, Miss.R.App.P. 40 replaced Miss.Sup.Ct.R. 40,
embracing proceedings in the Court of Appeals. Subsection (a) was further amended
to provide that any response to a petition for rehearing must be filed within 7, not 14,
days of the filing of the petition. 644-647 So.2d LXXIX-LXXX (West Miss.Cases
1994).
Comment
Rule 40 is modeled on Fed.R.App.P. 40 and the former rules of the Supreme
Court. Following federal practice, the rule provides that the motion is to be written in
the form of a brief, and no separate brief is required. The rule also provides an
automatic time period in which to respond to a motion for rehearing if desired;
however, the appropriate court may call for additional response on specific issues. A
motion for rehearing should be distinguished from a motion for clarification or
correction of opinion. Such a motion, filed in the manner and form prescribed by Rule
27, does not seek to alter the judgment of the court, and will not stay the mandate.
Motions for rehearing are limited to cases on the merits and motions which have been
decided by panels of the Court or by the Court sitting en banc. Motions for rehearing
are not entertained upon motions decided by a single justice. and to motions as
expressly allowed under Rule 27(g).
[Amended June 21, 1996 ; amended effective April 13, 2000.]
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