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Rule 62 – Stay of Proceedings to Enforce a Judgment

May 13, 2021 | Civil Procedure, Mississippi

(a) Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by statute or by order of the court for good cause shown, no execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after the later of its entry or the disposition of a motion for a new trial, whichever last occurs. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
(b) Stay on Motion. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60(b), or of a motion for judgment in accordance with a motion for a directed to set aside a verdict made pursuant to Rule 50(b), or of a motion for amendment to the findings or for additional finding made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an interlocutory or final judgment has been rendered granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of an appeal from such judgment upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. The power of the court to make such an order is not terminated by the taking of the appeal.
(d) Stay Upon Appeal. When an appeal is taken, the appellant, when and as authorized by statute or otherwise, may obtain a stay subject to the exceptions contained in subdivision (a) of this rule.
(e) [Omitted].
(f) Stay in Favor of the State of Mississippi or Agency Thereof. When an appeal is taken by the State of Mississippi or an officer or agency thereof or by direction of any department of the government of same and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required of the appellant.
(g) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
(h) Stay of Judgment Upon Multiple Claims or as to Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

Rule 62(a) provides for automatic stays of judgments, with certain exceptions, until ten days after the entry of a judgment or until the disposition of a motion for a new trial, whichever last occurs. This stay applies only to judgments as defined in Rule 54(a), and it only prevents enforcement of the judgment; it does not affect the appealability of the judgment nor prevent the time for appeal from running. See Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955) (a judgment is not final until the motion for a new trial is overruled; the time period for perfecting an appeal commences on the day after the motion for a new trial is overruled); but cf. Miss. Code Ann. 13-3-111(1972)as amended by 1976 Miss. Laws, ch. 331 (clerks shall issue executions on all judgments and decrees after close of term of court at request and on the cost of the prevailing party).

The automatic stay permits the party against whom judgment has been entered to determine what course of post-judgment action he wishes to follow. If he desires to attack the judgment in the trial court by a motion for a new trial or a similar post-trial motion, he can make his motion, thereby obtaining a stay pending disposition of the motion. If he prefers to appeal, he can file a notice of appeal and seek a stay pending appeal as provided in Rule 62(c) and (d).

The automatic stay becomes ineffective ten days after the entry of judgment. Even though further stays are available, they only can be had in accordance with the other subdivisions of Rule 62 and are not automatic but must be ordered by the court. See 11 Wright & Miller, Federal Practice and Procedure, Civil 2901-2903 (1972); 7 Moore’s Federal Practice 62.01-.10 (1972).

By expressed provision in Rule 62(a), different treatment is given to two classes of cases. These are:

(1) an interlocutory or final judgment in an action for an injunction; and
(2) an interlocutory or final judgment in a receivership action. In these two classes of actions the judgment is not stayed during the period after its entry and until an appeal is taken, or during the pendency of an appeal, “unless otherwise ordered by the court.” Thus the automatic stay does not apply in these two classes of cases, nor can a stay pending appeal be obtained in these cases merely by filing a supersedeas bond. But the trial court, under Rule 62(c), and the appellate court, under Rule 62(g), have ample power to make whatever order is appropriate in injunction cases, and Rule 62(a) permits the trial court to order a stay in receivership cases in which an accounting has been ordered. As is obvious from the fact that this class of cases is excepted from the automatic stay of Rule 62(a), the court should not grant a stay in such cases as a matter of course but should consider carefully the harm that a stay might cause to the party who has obtained the judgment and balance this against the harm that denial of a stay would cause to the losing party. See, e. g, Powell v. Maryland Trust Co., 125 F.2d 260 (4th Cir.), cert. denied 316 U.S. 671 [62 S. Ct. 1041, 86 L.Ed. 1746] (1942) (stay ordered in receivership action); American St. Gobain Corp. v. Armstrong Glass Co., 300 F. Supp. 419 (D.Tenn.), appeal dismissed 418 F.2d 571 (6th Cir. 1969) (stay refused). See also 11 Wright & Miller, supra 2902; 7 Moore’s Federal Practice, supra 62.03.

A post-trial motion seeking relief under Rule 60(b) does not stay the judgment. The party in whose favor the judgment runs is free to have execution on it or to bring proceedings to enforce it after the expiration of the automatic stay provided for in Rule 62(a). But if a post-trial motion is made, the court is given discretion in Rule 62(b) to stay execution or enforcement of the judgment pending disposition of the motion.

A stay under Rule 62(b) is discretionary with the court and may be “on such conditions for the security of the adverse party as are proper.” A stay may be granted under Rule 62(b) on a motion to alter or amend a judgment under Rule 59(e), a motion for relief from a judgment under Rule 60, a motion for judgment notwithstanding the verdict under Rule 50, or a motion for amendment to the findings or for additional findings under Rule 52(b).

There is no automatic stay in actions for injunctions and in such an action a judgment, whether interlocutory or final, may be stayed only by order of court. If no stay has been obtained, an injunction remains in effect. If the court has denied an injunction and there has been no stay, defendant is free to take the action sought to be enjoined, and if the event sought to be enjoined transpires before the appeal is heard, the appeal should be dismissed as moot. See 11 Wright & Miller, supra 2904.

An application under Rule 62(c) or (g) necessarily goes to the discretion of the court. The governing considerations are the same whether the application is to the trial court under subdivision (c) or to an appellate court under subdivision (g). Thus it is generally required that (A) the applicant make a strong showing that he is likely to succeed on the merits of the appeal; (B) the applicant establish that unless a stay is granted he will suffer irreparable injury; (C) no substantial harm will come to other interested parties; (D) a stay would do no harm to the public interest. See Wright & Miller, supra; Belcher v. Birmingham Trust Nat. Bank, 395 F.2d 685 (5th Cir. 1968); Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969);Fortune v. Molpus, 431 F.2d 799 (5th Cir. 1970); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972).

If the court is satisfied that these considerations or other relevant considerations indicate that an injunction should be stayed pending appeal, a stay will be granted. Otherwise the stay will be denied. See Corpus Christi Ind. School Dist. v. Cisneros, 404 U.S. 1211 [92 S. Ct. 9, 30 L.Ed.2d 15] (1971) (stay granted);Dandridge v. Jefferson Parish School Bd., 404 U.S. 1219 [92 S. Ct. 18, 30 L.Ed.2d 23] (1971) (stay denied).

Subdivision (d) of Rule 62 tracks prior Mississippi practice with respect to stays and supersedeas, subject to the subdivision (a) exceptions discussed above.

Subdivision (e) of the Federal Rules applies to stays in favor of the United States; it is omitted from the Mississippi Rules of Civil Procedure.

Subdivision (f) exempts the State of Mississippi from giving security to obtain a stay of judgment. This tracks prior practice under Miss. Code Ann. 11-51-101(1972).

Rule 62(g) is merely a declaration that whatever power an appellate court may possess to stay proceedings during the pendency of an appeal is not infringed by any provision of Rule 62.

Rule 62(h) provides that if a court has ordered a final judgment under the conditions stated in Rule 54(b), which allows the court to give judgment as to fewer than all of the claims or parties in a case, the court may stay enforcement of that judgment until the entry of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit of the judgment to the party in whose favor it was entered. Thus the court is given a choice in the matter: It may refuse a stay and allow immediate enforcement of the partial judgment it has entered, or it may grant the stay and prevent enforcement of that judgment until judgment hasbeen given on the whole case. If a stay is entered, the court, if it sees fit, may require the party against whom a judgment has been entered to file a bond securing payment of that judgment with interest.

Miss. R. Civ. P. 62

Amended effective July 1, 1997.

Advisory Committee Historical Note

Effective July 1, 1997, Rule 62(a) was amended to clarify that the stay of enforcement of a judgment expires ten days after the later of the entry of the judgment or the disposition of a motion for a new trial, and Rule 62(b) was amended to state that a court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion to set aside a verdict made pursuant to Rule 50(b). _____ So. 2d _____ (West Miss. Cases).

Advisory Committee Notes

Subdivision (e) of the Federal Rules applies to stays in favor of the United States; it is omitted from the Mississippi Rules of Civil Procedure.

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