What can be Appealed?

February 4, 2020 § 1 Comment

Can you appeal from a temporary order? What about a consent decree or judgment?

MCA § 11-51-3 says in its entirety:

“An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree.”

So the judgment must be final, disposing of all issues as to all parties. MRCP 54. If the order or judgment is final as to fewer than all the issues or parties, then it is not a final, appealable judgment unless the judge certifies that there is no just reason for delay and directs entry of a judgment.

Thus, there is no appeal from a temporary order. Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995).

A decree entered by consent of the parties is not appealable. Legg v. Legg, 251 Miss. 12, 168 So. 2d 58, 60 (1964).

An order denying a motion to recuse is appealable even though not a final judgment as to all claims or parties. That’s because it is authorized by MRAP 48B.

An order denying or granting a probated claim is appealable despite the fact that the estate remains open. Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987).

You can try to appeal from a less-than-final judgment or an interlocutory ruling by petitioning the MSSC for permission to file an interlocutory appeal per MRAP 5. You have to convince the court that “a substantial basis exists for a difference of opinion on a question of law” that appellate resolution may advance termination of the suit and save the parties money, or protect a party from irreparable injury, or “resolve an issue of general importance in the administration of justice.”

 

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