February 7, 2013 § 1 Comment

Judge Griffis tells of a time that he filed a “Motion to Reconsider” in federal court after a judgment that he took issue with had been entered. Judge Lee, in his ruling, devoted the first page or two to pointing out that there is no such motion.

When I heard the story, I took exception and pointed out that even under our pre-MRCP practice there was a motion to reconsider, and that the MRCP even continues our pre-rules practice. I added that lawyers even today file motions to “reconsider.” 

Well, I was wrong. Sort of.

MRCP 59 says that a new trial may be granted ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”

That’s rehearing, not reconsideration.    

To discover the reasons for which rehearings were granted in pre-rules suits in equity, I consulted Griffith, Mississippi Chancery Practice, 2d Ed., 1950, which is the bible of pre-rules practice. Under that ancient practice, all the business of the court was conducted during the terms. All judgments became final on the last day of the term, unless the judge entered an order during the term that set a matter for hearing on a day outside the term (“in vacation”), and orders and decrees could not be altered or amended by the chancellor after the term ended except for some very limited circumstances.

During the term, all decrees and orders issued by the chancellor, even if filed, were considered to be “in the bosom of the court,” and could be changed, altered, withdrawn or vacated by the court at any time up to the close of the term, either on its own motion, or on motion of any party to the suit. The request to the court during the term was a “motion for rehearing,” and some of the bases mentioned by Griffith are: on the court’s on motion to vacate or modify its decree; reargument to point out an overlooked point of law; urging a different result based on something in evidence that the court failed to mention; and newly-discovered evidence (now an MRCP 60 matter).

So “the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi” include not merely a naked request for a new trial, but also a request for the chancellor to go back and study the evidence and the law again, to see whether perhaps a different result would have been reached. The judge could then, during the term, alter the decree or order, or withdraw it and direct a new trial. 

That smells a lot like both reconsideration on the one hand, and rehearing on the other.  

Even today in chancery court, lawyers may know under the rules that they are asking for rehearing, but they know, too, that they are asking for reconsideration. Out of curiosity, I asked my staff attorney to pull up the R59 motions that had been filed in the preceding year. Of the dozens filed, only a couple were styled or even asked for “rehearing.” Nearly every one was styled “Motion for Reconsideration,” or asked for reconsideration. That’s reconsideration, not rehearing.

Thus, I was sort of right, and sort of wrong in response to Judge Griffis. Right in the sense that the common usage is to call a R59 motion a request for reconsideration, and to ask for reconsideration. Wrong because the rule and pre-rule practice call for rehearing.

It’s not a big deal because the MSSC said many years ago after the MRCP went into effect that judges are to look to the substance of the motion, and not the form, and MRCP 8(f) mandates that pleadings be construed so as to do “substantial justice.” Thus, what you call the motion, and whether you ask for rehearing or reconsideration, is less important than clearly invoking MRCP 59.

Most “Motions for Reconsideration” are just that. They ask the court, “Please, take a look at this one more time and, please, change your mind.” That’s not in keeping with the rehearing language of R59, but it definitely captures what the pre-rules practice was. As the COA said in Brown v. Weatherspoon, which is a R60 case, but the principle is the same, “Finality should yield to fairness.”

Don’t worry too much about getting caught with your proverbial pants down in an appeal because you called your R59 motion one for reconsideration, rather than rehearing. It appears that reconsideration is the vogue word for our appellate judges, too … 

  • Check this out from the COA decision in Estate of Ristroph v. Ristroph, decided in January, 2013: “John then filed a motion to reconsider under Mississippi Rule of Civil Procedure 59. While awaiting the chancellor’s decision on John’s Rule 59 motion, Paul filed a motion for summary judgment with respect to the other alleged inter vivos gifts, contending these claims were also time-barred under section 15-1-49. The chancellor denied John’s motion to reconsider the timeliness of his petition to set aside the warranty deed, and John appealed the denial to the Mississippi Supreme Court.”
  • And this from the COA in Rodgers v. Moore, et al., decided in November, 2012: “According to the briefs, plaintiffs filed a motion to reconsider the dismissal with the chancery court. The chancery court entered an order on March 8, 2007, denying the motion to reconsider.”

I am sure there are more, but you get the picture.

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