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Rule 77 – Courts and Clerks

May 13, 2021 | Civil Procedure, Mississippi

(a) Court Always Open. The courts shall be deemed always open for the purposes of filing any pleading or other proper paper, of issuing and returning process, and of making and directing all interlocutory motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court, except as otherwise provided by statute. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place within the state either within or without the district; but no hearing shall be conducted outside the district without the consent of all parties affected thereby.
(c) Clerk’s Office and Orders by Clerk. The clerk’s office with the clerk or a deputy clerk in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. All motions and applications to the clerk for issuing process, for issuing process to enforce and execute judgments, for entering defaults, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service. Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Supreme Court Rules.

Miss. R. Civ. P. 77

Amended effective February 1, 1990.

Advisory Committee Historical Note

Effective February 1, 1990, Rule 77 was amended by adding subsection (d), requiring the clerk of the court to give notice of the entry of orders and judgments to the interested parties. 553-556 So. 2d XLII (West Miss. Cas. 1990).

Effective July 1, 1997, Rule 77(d) was amended to allow for service of notices of the entry of orders and judgments by parties. _____ So. 2d _____ (West Miss. Cases).

Advisory Committee Notes

Rule 77(a) provides that the courts shall be deemed always open for the purpose of filing papers and issuing and returning process and making motions and orders. This does not mean that the office of the clerk must be physically open at all hours or that the filing of papers can be effected by leaving them in a closed or vacant office. Under Rule 5(e)(1) papers may be filed out of business hours by delivering them to the clerk or to the judge if he or she permits. See Miss. Const. ยง 24 (all courts shall be open).

Rule 77(b) requires that the “all trials upon the merits” be conducted in “open court”; all other acts or proceedings may be done or conducted by a judge “in chambers,” without the necessity of the attendance of the clerk or other court official and at any place within the state. However, no hearing, other than one heard ex parte, shall be conducted outside the district without the consent of all parties affected thereby. See Corporate Mgmt., Inc. v. Greene Rural Health Ctr. Bd. of Trustees, 47 So. 3d 142, 146 (Miss. 2010).

Rule 77(d) requires that the clerk provide copies of all orders and judgments, immediately upon their entry, to all parties who are not in default for failure to appear.

M.R.A.P. 4(h) provides that a party who did not receive notice of entry of a judgment or order from the clerk or any party within 21 days of its entry may move the trial court to reopen the time for appeal.

Rule 77(d) gives a prevailing party who wants to ensure that the time for appeal is not reopened pursuant to M.R.A.P. 4(h), the opportunity to serve notice of entry of the judgment or order upon opposing parties in the manner provided in Rule 5. Although prevailing parties may take the initiative to assure that their adversaries receive effective notice, the clerk retains the duty to give notice of entry of judgments and orders.

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