2006 Regular Session
To: Judiciary, Division A
By: Senator(s) Nunnelee
AN ACT TO AMEND SECTION 11-9-105, MISSISSIPPI CODE OF 1972, TO REVISE THE FORM OF SUMMONS IN JUSTICE COURT; TO AMEND SECTION 11-9-107, MISSISSIPPI CODE OF 1972, TO REVISE THE ISSUANCE OF PROCESS IN JUSTICE COURT; TO AMEND SECTIONS 11-9-109 AND 11-9-113, MISSISSIPPI CODE OF 1972, TO REVISE AND CLARIFY PERSONS ELIGIBLE TO SERVE PROCESS IN JUSTICE COURT; TO AMEND SECTION 11-9-117, MISSISSIPPI CODE OF 1972, TO REVISE THE ENTRY OF JUDGMENT NISI IN JUSTICE COURT; TO AMEND SECTION 11-9-123, MISSISSIPPI CODE OF 1972, TO REVISE THE ENTRY OF FINAL DEFAULT JUDGMENT IN JUSTICE COURT; TO AMEND SECTION 11-9-127, MISSISSIPPI CODE OF 1972, TO REVISE CIVIL TRIAL ON AN ALLEGED DEBT IN JUSTICE COURT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-9-105, Mississippi Code of 1972, is amended as follows:
11-9-105. (1) Anyone desiring to sue in the justice court shall lodge with the clerk of the justice court the evidence of debt, statement of account, or other written statement of the cause of action. The clerk shall render assistance in preparation of a statement of claim upon request. The clerk shall record all filings and shall, as far as practicable, assign the cases to each justice court judge in the county on a rotating basis to insure equal distribution of the cases among the judges of the county; however, in all counties in which the courtrooms provided by the county for use of the justice court judges are located in more than one (1) place in the county, the clerk, in addition to assigning cases to the judges on a rotating basis, may also assign a courtroom for each case, such assignment may be made based upon the proximity of the courtroom to the defendant's residence or place of business.
(2) The clerk shall issue a summons for the defendant, which shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and time within which the defendant is required to appear and defend, and shall notify him that in case of his failure to do so, judgment by default will be rendered against him. Any summons issued within fourteen (14) days before a term of the court shall be made returnable to the next succeeding term, unless a shorter day be named, in pursuance of the provision for a trial without delay in the case of nonresident or transient defendants. When the case has been recorded and assigned and process issued, the clerk shall, within two (2) working days, forward certified copies of all documents pertaining to the case to the justice court judge to which the case is assigned for further processing.
SECTION 2. Section 11-9-107, Mississippi Code of 1972, is amended as follows:
11-9-107. (1) When any process has not been returned by a constable within ten (10) working days after issuance by the clerk of the justice court, the clerk shall direct the sheriff of his county and his deputies to execute any such process of the justice court; and the sheriff and his deputies shall execute any process so directed to him by any clerk of the justice court.
(2) (a) Alternatively, a summons and statement of claim may be served upon a defendant by mailing a copy of the summons and of the statement of claim by first-class mail, postage prepaid, to the person to be served, together with two (2) copies of a notice and acknowledgment and a return envelope, postage prepaid, addressed to the sender.
(b) Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within twenty (20) days after mailing the notice and acknowledgment of receipt of summons and statement of claim.
(c) The notice and acknowledgment of receipt of summons and statement of claim shall be executed under oath or affirmation.
SECTION 3. Section 11-9-109, Mississippi Code of 1972, is amended as follows:
11-9-109. In cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the clerk of the justice court may appoint some reputable person who is not a party and who is not less than eighteen (18) years of age to execute any process, the clerk to be liable on his bond for all damage which may result to a party to the cause or other person from his appointment of an insolvent or incompetent person.
SECTION 4. Section 11-9-113, Mississippi Code of 1972, is amended as follows:
11-9-113. The process so delivered to the sheriff or constable or other person authorized by law shall be returned by him to the clerk of the justice court, according to its command.
SECTION 5. Section 11-9-117, Mississippi Code of 1972, is amended as follows:
11-9-117. (1) If the defendant does not file an answer within fourteen (14) days from the date of service, the plaintiff may make application for default judgment.
(2) The judgment nisi against a defaulting witness, may be in the following form, viz: "________, being subpoenaed to appear this day as a witness for ________, the ________, in the case of ________ v. ________, No. ________, and having made default, judgment is given against said ________, the defaulting witness, for Ten Dollars ($10.00), in favor of ________, to be made final unless said ________, the witness, shall show cause against it according to law."
(3) Notice of the entry of judgment nisi shall be sent to the defendant by first-class mail, postage prepaid.
SECTION 6. Section 11-9-123, Mississippi Code of 1972, is amended as follows:
11-9-123. (1) If the defendant does not file an answer within thirty (30) days from the date of mailing of the judgment nisi, the entry of final judgment in such case may be in the following form, viz: "________ being duly summoned to appear and show cause against the judgment nisi for Ten Dollars ($10.00) entered against him in favor of ________, as a defaulting witness in the case of ________ v. ________ No. ________ on the ________ day of ________ A.D. ________, and having failed to show cause for such default, the said judgment nisi for Ten Dollars ($10.00) is now made final, as well as judgment for costs in said matter, this the ________ day of ________ A.D. ________."
SECTION 7. Section 11-9-127, Mississippi Code of 1972, is amended as follows:
11-9-127. (1) If the defendant files an answer admitting the debt, the plaintiff may file for a consent judgment. If the defendant files an answer denying the debt, the case will be set for trial and the clerk of the justice court shall notify the parties of the trial date.
(2) The justice court judge, when requested, may issue execution against the goods and chattels, lands and tenements, of the party against whom judgment is rendered, for the amount of the judgment and costs, or costs alone, as the case may require, returnable to a day more than twenty (20) days after the rendition of the judgment, and not more than six (6) months after the issuance of the execution; and the execution may be directed to the proper officer of any county in this state.
SECTION 8. This act shall take effect and be in force from and after July 1, 2006.