Joseph Davis, Jr. v. Nationwide Recovery Service, Inc.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CP-00036-SCT
JOSEPH DAVIS, JR.
v.
NATIONWIDE RECOVERY SERVICE, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
12/09/1999
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
PRO SE
MARIA M. COBB
CIVIL - OTHER
REVERSED AND REMANDED - 03/29/2001
4/19/2001
BEFORE BANKS, P.J., SMITH AND WALLER, JJ.
WALLER, JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. Nationwide Recovery Service, Inc., filed suit against Joseph Davis, Jr., in the County Court of the
Second Judicial District of Harrison County to collect a past due balance on a Visa credit card issued by
Bank of America NT&SA to Davis. The account was later assigned to Nationwide. A judgment was
ultimately entered against Davis and no appeal was taken therefrom. Davis next filed two motions under
M.R.C.P. 60. A motion under Rule 60(a) was never ruled upon, but the merits of the motion were
incorporated into the Rule 60(b) motion, which was denied on February 8, 1999. Davis filed a "motion for
appeal" from the denial of the Rule 60(b) motion on March 4, 1999. The Circuit Court of the Second
Judicial District of Harrison County dismissed the appeal as untimely filed. Because the appeal was timely,
we reverse the dismissal of the appeal from the Rule 60(b) motion and remand this matter to the circuit
court for further proceedings consistent with this opinion.
DISCUSSION
¶2. After a non-jury trial was held, a judgment was entered in favor of Nationwide on March 7, 1997.
Almost six months later, on September 5, 1997, Davis filed a motion "pursuant to M.R.C.P. 60(a)" and a
motion "pursuant to M.R.C.P. 60(b)." On February 8, 1999, the county court judge entered an order
denying the 60(b) motion. On March 4, 1999, Davis filed a motion for appeal, twenty-four (24) days after
the order was entered. Our standard of review for evaluating the denial of a motion for relief from judgment
is abuse of discretion. Montgomery v. Montgomery, 759 So. 2d 1238, 1240 (Miss. 2000).
¶3. Miss. Code Ann. § 11-51-79 provides that appeals from county court to circuit court shall be made
within ten (10) days of the entry of judgment. However, U.R.C.C.C. 5.04 and 12.03 provide that such
appeals be made within thirty (30) days of the entry of judgment.
¶4. We note that when the U.R.C.C.C. were adopted, the thirty-day period was used in the interest of
promoting uniformity between our rules and the federal appellate rules which allow thirty days. With the
adoption of the Rules of Civil Procedure and the Court's pronouncements in Hall v. State, 539 So. 2d
1338, 1345 (Miss. 1989), and Newell v. State, 308 So. 2d 71, 76 (Miss. 1975), we articulated its power
to establish rules regarding appeals from court to court, and its mandate that such rules supercede statutes
which are in conflict with the rules. Accord, Van Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000);
American Investors, Inc. v. King, 733 So. 2d 830, 832 (Miss. 1999). While our own rulemaking power
takes precedence, we note that, with the passage of H.B. No. 1207 during its 2001 regular session, the
Legislature amended § 11-51-79 to replace the ten-day appeal period with the thirty-day appeal period,
effective July 1, 2001.(1)
¶5. In accordance with the intentions of the Court as manifested in the U.R.C.C.C., and in Hall and
Newell, we find that Davis' appeal from the denial of the Rule 60(b) motion was timely filed and that the
circuit court abused its discretion in dismissing the appeal.
CONCLUSION
¶6. Because the appeal of the denial of Davis' Rule 60 motion from the Harrison County Court to the
Harrison County Circuit Court was timely, the order dismissing the appeal is reversed, and this case is
remanded to the Harrison County Circuit Court for further proceedings consistent with this opinion.
¶7. REVERSED AND REMANDED.
PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, COBB, DIAZ AND
EASLEY, JJ., CONCUR.
1. The Governor has approved the legislation.
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