Curtis Curry v. Elizabeth C. Walls
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-00485-COA
CURTIS CURRY
APPELLANT
v.
ELIZABETH C. WALLS, JOHNNIE E. WALLS AND
WALLS LAW FIRM
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
12/04/1997
HON. LARRY O. LEWIS
COAHOMA COUNTY CIRCUIT COURT
CURTIS CURRY (PRO SE)
JOHNNIE E. WALLS
CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISMISSED FOR FAILURE TO PROSECUTE
AFFIRMED - 04/20/2004
BEFORE MCMILLIN, C.J., LEE AND MYERS, JJ.
LEE, J., FOR THE COURT:
PROCEDURAL HISTORY AND FACTS
¶1.
On January 26, 1994, Curtis Curry filed a complaint in the Circuit Court of Coahoma County
against Johnnie E. Walls and Elizabeth C. Walls for fraud and embezzlement. Curry later amended the
complaint on March 16, 1994, to include the claim of conversion. On July 3, 1996, Curry filed a motion
for trial setting and, on December 2, 1996, filed a motion for a copy of the record. The court clerk filed
a motion to dismiss for failure to prosecute on November 3, 1997. The trial judge dismissed the case
without prejudice on December 4, 1997.
¶2.
On February 7, 1998, Curry filed a petition for writ of mandamus or for an order to show cause
with the supreme court, which was denied on March 30, 1998. The supreme court dismissed the petition
for writ of mandamus on May 11, 2000. Curry filed a motion for reconsideration on March 12, 2002, and
on December 27, 2002, a motion to amend the motion for reconsideration. The circuit court denied
Curry's motions on February 6, 2003. Curry now appeals to this Court asserting that the trial court abused
its discretion in sustaining the clerk's motion to dismiss the case for want of prosecution; and that the motion
for reconsideration should have been granted because the initial order dismissing the case was void.
DISCUSSION OF ISSUES
¶3.
According to the supreme court in Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss. 1990), "[t]he
power to dismiss for failure to prosecute is inherent in any court of law or equity, being a means necessary
to the orderly expedition of justice and the court's control of its own docket." Furthermore, we will not
disturb a trial court's finding on appeal unless it is manifestly wrong. Id. Curry contends that his letter
requesting a copy of the court file dated December 2, 1996, was sufficient to constitute an action of record.
Curry also argues that the clerk misfiled his motion of December 1, 1997, seeking an extension of time and,
as a result, the judgment should be set aside. However, there is no record of the motion in the clerk's
papers. The only copy of the motion was attached by Curry to his petition for writ of mandamus, both of
which were stamped as filed on February 7, 1998.
¶4.
Mississippi Rule of Civil Procedure 41(d) states in part the following:
. . . . In all civil actions wherein there has been no action of record during the preceding
twelve months, the clerk of the court shall mail notice to the attorneys of record that such
case will be dismissed by the court for want of prosecution unless within thirty days
2
following said mailing, action of record is taken or an application in writing is made to the
court and good cause shown why it should be continued as a pending case. If action of
record is not taken or good cause is not shown, the court shall dismiss each such case
without prejudice.
¶5.
The clerk's motion to dismiss stated that Curry was given written notice of the filing and that he had
thirty days to take action of record. The trial court's order dismissing Curry's case on December 4, 1997,
stated that "no action of record has been taken during the preceding twelve months, nor any application
made to the Court and good cause shown why this case should not be dismissed."
¶6.
Furthermore, the trial court stated, in its order dated February 6, 2003, that Curry ultimately
wanted his case reconsidered and set for trial. However, the trial court found that Curry's motion for
reconsideration was void as untimely filed. According to Mississippi Rule of Civil Procedure 59(e) a
motion for reconsideration is treated as a motion to amend judgment and must be filed within ten days from
the entry of judgment sought to be amended. Curry's case was dismissed in December 1997 and his
motion for reconsideration was filed over four years later on March 12, 2002.
¶7.
The trial court further stated that:
Even if the Motion for Reconsideration were timely filed, the case was properly dismissed
for failure to prosecute. In denying and dismissing the Petition for Writ of Mandamus, the
Supreme Court of Mississippi found that this Court had the authority and discretion to
control its own docket. Plaintiff's letter filed December 2, 1996 requesting a copy of the
court file did not constitute an "action of record" within the meaning of Rule 41(d) of the
Mississippi Rules of Civil Procedure and did not "hasten the suit to judgment." See Wilson
v. Freeland, 773 So. 2d 305 (¶¶13,14) (Miss. 2000).
The trial court also found that the motion should still be denied if it were considered a motion for relief from
judgment under Mississippi Rule of Civil Procedure Rule 60, as none of the grounds for a Rule 60 motion
were present. The grounds for relief include clerical mistakes; fraud, misrepresentation, or other
misconduct of an adverse party; accident or mistake; newly discovered evidence which by due diligence
3
could not have been discovered in time to move for a new trial under Rule 59(b); the judgment is void; the
judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
application; or any other reason justifying relief from the judgment.
¶8.
We cannot find that the trial court was manifestly wrong in dismissing Curry's case for want of
prosecution; thus, we affirm.
¶9.
THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
