MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Judiciary B; County Affairs
By: Representative Zuber
AN ACT TO AMEND SECTION 11-9-127, MISSISSIPPI CODE OF 1972, TO PRESERVE THE DUE PROCESS RIGHTS OF DEFENDANTS WHILE STREAMLINING CIVIL DOCKETS AND AVOIDING UNNECESSARY COSTS AND THE BURDEN OF NEEDLESS HEARING PREPARATION FOR PLAINTIFFS; TO FORMALIZE THE AVAILABILITY OF CERTAIN REMEDIES IN JUSTICE COURTS AS RECOGNIZED BY A SERIES OF OPINIONS OF THE ATTORNEY GENERAL; TO AMEND SECTION 11-53-81, MISSISSIPPI CODE OF 1972, TO CONFIRM THE AVAILABILITY OF THE OPEN ACCOUNT REMEDY TO COLLECT MEDICAL AND HOSPITAL BILLS; TO AMEND SECTION 25-7-13, MISSISSIPPI CODE OF 1972, TO ENCOURAGE COLLECTION OF MODEST FINES AND JUDGMENTS OBTAINED IN MUNICIPAL COURTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-9-127, Mississippi Code of 1972, is amended as follows:
11-9-127. Any defendant desiring a hearing before the justice court must notify the clerk of the court that a hearing is desired no later than the close of business two (2) working days before the return day of the summons. On the return day of the summons, unless continued, the justice court judge shall hear and determine the cause if the defendant has requested a hearing and both parties appear; give judgment by default if the defendant did not request a hearing, or fails to appear and contest plaintiff's demand after requesting a hearing, or judgment of nonsuit against the plaintiff if the defendant has requested a hearing and the plaintiff fails to appear and prosecute his claim; enter judgment in favor of the defendant where, in case of setoff, it shall appear that there is a balance due him, for the amount of such balance, and, when requested, 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 2. The statutory remedies of garnishment and examination of judgment debtor, and all defenses thereto, shall be available in justice court.
SECTION 3. Section 11-53-81, Mississippi Code of 1972, is amended as follows:
11-53-81. When any person fails to pay a medical or hospital bill or other open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney's fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff. Evidence of receipt of written demand by the spouse of the debtor when they are living together as husband and wife on behalf of the debtor may be introduced as evidence of written demand on the debtor. If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge.
If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor, and if the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.
SECTION 4. Section 25-7-13, Mississippi Code of 1972, is amended as follows:
[Until Laws, 2004, Chapter 505, Section 9, is effectuated under Section 5 of the Voting Rights Act of 1965, this section will read as follows:]
25-7-13. (1) The clerks of the circuit court shall charge the following fees:
(a) Docketing, filing, marking and registering each complaint, petition and indictment............................................... $75.00
The fee set forth in this paragraph shall be the total fee for all services performed by the clerk up to and including entry of judgment with respect to each complaint, petition or indictment, including all answers, claims, orders, continuances and other papers filed therein, issuing each writ, summons, subpoena or other such instruments, swearing witnesses, taking and recording bonds and pleas, and recording judgments, orders, fiats and certificates; the fee shall be payable upon filing and shall accrue to the clerk at the time of collection. The clerk or his successor in office shall perform all duties set forth above without additional compensation or fee.
(b) Docketing and filing each suggestion for a writ of garnishment, suggestion for a writ of execution and judgment debtor actions and issuing all process, filing and recording orders or other papers and swearing witnesses 30.00
(2) Except as provided in subsection (1) of this section, the clerks of the circuit court shall charge the following fees:
(a) Filing and marking each order or other paper and recording and indexing same....................................................... 2.00
(b) Issuing each writ, summons, subpoena, citation, capias and other such instruments................................................ 1.00
(c) Administering an oath and taking bond....... 2.00
(d) Certifying copies of filed documents, for each complete document 1.00
(e) Recording orders, fiats, licenses, certificates, oaths and bonds:
First page............................................ 2.00
Each additional page.................................. 1.00
(f) Furnishing copies of any papers of record or on file and entering marginal notations on documents of record:
If performed by the clerk or his employee, per page... 1.00
If performed by any other person, per page............. .25
(g) Judgment roll entry......................... 5.00
Notwithstanding any other law to the contrary, the circuit clerk shall not collect any other fine, assessment or other item of cost other than the fee authorized by this paragraph (g) when enrolling a municipal court judgment.
(h) Taxing cost and certificate................. 1.00
(i) For taking and recording application for marriage license, for filing and recording consent of parents when required by law, for filing and recording medical certificate, filing and recording proof of age, recording and issuing license, recording and filing returns.............................. 20.00
The clerk shall deposit Fourteen Dollars ($14.00) of each fee collected for a marriage license in the Victims of Domestic Violence Fund established in Section 93-21-117, on a monthly basis.
(j) For certified copy of marriage license and search of record, the same fee charged by the Bureau of Vital Statistics of the State Board of Health.
(k) For public service not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on presentation of the circuit court's order, the following amount.................... 5,000.00
However, in the counties having two (2) judicial districts, such above allowance shall be made for each judicial district.
(l) For drawing jurors and issuing venire, to be paid by the county 5.00
(m) For each day's attendance upon the circuit court term, for himself and necessary deputies allowed by the court, each to be paid by the county 30.00
(n) Summons, each juror to be paid by the county upon the allowance of the court...................................................... 1.00
(o) For issuing each grand jury subpoena, to be paid by the county on allowance by the court, not to exceed Twenty-five Dollars ($25.00) in any one (1) term of court................................................... 1.00
(3) On order of the court, clerks and deputies may be allowed five (5) extra days for attendance upon the court to get up records.
(4) The clerk's fees in state cases where the state fails in the prosecution, or in cases of felony where the defendant is convicted and the cost cannot be made out of his estate, in an amount not to exceed Four Hundred Dollars ($400.00) in one (1) year, shall be paid out of the county treasury on approval of the circuit court, and the allowance thereof by the board of supervisors of the county. In counties having two (2) judicial districts, such allowance shall be made in each judicial district; however, the maximum thereof shall not exceed Eight Hundred Dollars ($800.00). Clerks in the circuit court, in cases where appeals are taken in criminal cases and no appeal bond is filed, shall be allowed by the board of supervisors of the county after approval of their accounts by the circuit court, in addition to the above fees, for making such transcript the rate of Two Dollars ($2.00) per page.
(5) The clerk of the circuit court may retain as his commission on all money coming into his hands, by law or order of the court, a sum to be fixed by the court not exceeding one-half of one percent (1/2 of 1%) on all such sums.
(6) For making final records required by law, including, but not limited to, circuit and county court minutes, and furnishing transcripts of records, the circuit clerk shall charge Two Dollars ($2.00) per page. The same fees shall be allowed to all officers for making and certifying copies of records or papers which they are authorized to copy and certify.
(7) The circuit clerk shall prepare an itemized statement of fees for services performed, cost incurred, or for furnishing copies of any papers of record or on file, and shall submit the statement to the parties or, if represented, to their attorneys within sixty (60) days. A bill for same shall accompany the statement.
[From and after the date Laws, 2004, Chapter 505, Section 9, is effectuated under Section 5 of the Voting Rights Act of 1965, this section shall read as follows:]
25-7-13. (1) The clerks of the circuit court shall charge the following fees:
(a) Docketing, filing, marking and registering each complaint, petition and indictment............................................... $75.00
The fee set forth in this paragraph shall be the total fee for all services performed by the clerk up to and including entry of judgment with respect to each complaint, petition or indictment, including all answers, claims, orders, continuances and other papers filed therein, issuing each writ, summons, subpoena or other such instruments, swearing witnesses, taking and recording bonds and pleas, and recording judgments, orders, fiats and certificates; the fee shall be payable upon filing and shall accrue to the clerk at the time of collection. The clerk or his successor in office shall perform all duties set forth above without additional compensation or fee.
(b) Docketing and filing each suggestion for a writ of garnishment, suggestion for a writ of execution and judgment debtor actions and issuing all process, filing and recording orders or other papers and swearing witnesses $30.00
(2) Except as provided in subsection (1) of this section, the clerks of the circuit court shall charge the following fees:
(a) Filing and marking each order or other paper and recording and indexing same..................................................... $ 2.00
(b) Issuing each writ, summons, subpoena, citation, capias and other such instruments.............................................. $ 1.00
(c) Administering an oath and taking bond..... $ 2.00
(d) Certifying copies of filed documents, for each complete document $ 1.00
(e) Recording orders, fiats, licenses, certificates, oaths and bonds:
First page.......................................... $ 2.00
Each additional page................................ $ 1.00
(f) Furnishing copies of any papers of record or on file and entering marginal notations on documents of record:
If performed by the clerk or his employee, per page. $ 1.00
If performed by any other person, per page.......... $ .25
(g) Judgment roll entry....................... $ 5.00
Notwithstanding any other law to the contrary, the circuit clerk shall not collect any other fine, assessment or other item of cost other than the fee authorized by this paragraph (g) when enrolling a municipal court judgment.
(h) Taxing cost and certificate............... $ 1.00
(i) For taking and recording application for marriage license, for filing and recording consent of parents when required by law, for filing and recording medical certificate, filing and recording proof of age, recording and issuing license, recording and filing returns............................. $20.00
The clerk shall deposit Fourteen Dollars ($14.00) of each fee collected for a marriage license in the Victims of Domestic Violence Fund established in Section 93-21-117, on a monthly basis.
(j) For certified copy of marriage license and search of record, the same fee charged by the Bureau of Vital Statistics of the State Board of Health.
(k) For public service not particularly provided for, the circuit court may allow the clerk, per annum, to be paid by the county on presentation of the circuit court's order, the following amount................... $5,000.00
However, in the counties having two (2) judicial districts, such above allowance shall be made for each judicial district.
(l) For drawing jurors and issuing venire, to be paid by the county $ 5.00
(m) For each day's attendance upon the circuit court term, for himself and necessary deputies allowed by the court, each to be paid by the county $50.00
(n) Summons, each juror to be paid by the county upon the allowance of the court.................................................... $ 1.00
(o) For issuing each grand jury subpoena, to be paid by the county on allowance by the court, not to exceed Twenty-five Dollars ($25.00) in any one (1) term of court................................................. $ 1.00
(3) On order of the court, clerks and deputies may be allowed five (5) extra days for attendance upon the court to get up records.
(4) The clerk's fees in state cases where the state fails in the prosecution, or in cases of felony where the defendant is convicted and the cost cannot be made out of his estate, in an amount not to exceed Four Hundred Dollars ($400.00) in one (1) year, shall be paid out of the county treasury on approval of the circuit court, and the allowance thereof by the board of supervisors of the county. In counties having two (2) judicial districts, such allowance shall be made in each judicial district; however, the maximum thereof shall not exceed Eight Hundred Dollars ($800.00). Clerks in the circuit court, in cases where appeals are taken in criminal cases and no appeal bond is filed, shall be allowed by the board of supervisors of the county after approval of their accounts by the circuit court, in addition to the above fees, for making such transcript the rate of Two Dollars ($2.00) per page.
(5) The clerk of the circuit court may retain as his commission on all money coming into his hands, by law or order of the court, a sum to be fixed by the court not exceeding one-half of one percent (1/2 of 1%) on all such sums.
(6) For making final records required by law, including, but not limited to, circuit and county court minutes, and furnishing transcripts of records, the circuit clerk shall charge Two Dollars ($2.00) per page. The same fees shall be allowed to all officers for making and certifying copies of records or papers which they are authorized to copy and certify.
(7) The circuit clerk shall prepare an itemized statement of fees for services performed, cost incurred, or for furnishing copies of any papers of record or on file, and shall submit the statement to the parties or, if represented, to their attorneys within sixty (60) days. A bill for same shall accompany the statement.
SECTION 5. Section 2 of this act shall be codified in Title 11, Chapter 9, Mississippi Code of 1972.
SECTION 6. This act shall take effect and be in force from and after July 1, 2005.