Pending R 59 Motion = No Appeal

September 6, 2016 § 2 Comments

Carla Magee and William Darnell were divorced from each other in 2012. The chancellor awarded William custody of the parties’ six-year-old son during the school year. There was evidence of precocious sexual knowledge on the part of the child. Carla appealed.

In Darnell v. Darnell, 167 So.3d 195 (Miss. 2014), the MSSC reversed because the chancellor had erroneously excluded two statements from evidence. The case was remanded with directions for the court to admit the two statements, and to make new findings of fact and conclusions of law taking the statements into account.

On remand, the chancellor entered an amended final judgment of divorce on April 23, 2015, apparently again ruling against Carla on the issue of custody. Eight days later, Carla filed a R59 motion seeking to alter or amend the judgment, or for a new trial. Without waiting for the trial court to rule on the R59 motion, Carla filed a notice of appeal on May 19, 2015. William filed a timely cross-appeal.

In the latest Darnell v. Darnell, decided August 25, 2016, The MSSC dismissed both the appeal and the cross-appeal. Justice Maxwell wrote for a unanimous court:

¶4. When timely post-trial motions are filed, “the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” M.R.A.P. 4(d). This particular provision “applies to a timely motion . . . (3) under Rule 59 to alter or amend the judgment; [or] (4) under Rule 59 for a new trial.” Id. So a notice of appeal only becomes “effective when the Rule 59 motion is disposed of.” Mallery v. Taylor, 792 So. 2d 226, 228 (¶7) (Miss. 2001). Until disposal of the Rule 59 motion, there is no final appealable judgment. [Fn 1]

[Fn 1] See M.R.A.P. 4(d) (“A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions [contemplated in M.R.A.P. 4] is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.”).

¶5. Carla’s motion to alter or amend the judgment, or alternatively for a new trial, was filed eight days after entry of the final judgment. Thus, her Rule 59 motion was timely. However, Carla has not yet brought her motion for hearing, and it remains pending. So this court lacks appellate jurisdiction. [Fn 2]

[Fn 2] When Mississippi adopted its present constitution, this Court’s precedent recognized that an appeal from a chancellor’s order—when a motion to set aside the order had been filed, but not decided, in the chancery court—did not fall within this Court’s appellate jurisdiction. Perryman v. Gardner, 42 Miss. 548, 549-50 (1869). Facing a similar situation here, this case does not fall within “such jurisdiction as properly belongs to a court of appeals.” Miss Const. art. 6, § 146.


¶6. Because Carla’s timely Rule 59 motion is still pending in chancery court, we dismiss the appeal and cross-appeal for lack of jurisdiction.


Not a lot to chew on here. Pretty straightforward: A timely-filed R59 motion not only stays the time for filing an appeal, it keeps jurisdiction in the trial court until it is disposed of by the trial court.

It’s nice to see the court cite to the 1869 Perryman case. Sometimes we lose sight of the fact that old, old law is still good law unless it has been reversed or was based on statutory law that has been changed or repealed. I once got an adultery judgment against my client reversed based on a 1916 case that was still good law. Sometimes those venerable, white-haired cases can be a trove of helpful authority.   .


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