                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 97-CA-01255-SCT
AMERICAN INVESTORS, INC.
v.
STANLEY KING, CAROL KING AND RICHARD H. YOUNG, TRUSTEE

DATE OF JUDGMENT:                                 08/29/97
TRIAL JUDGE:                                      HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED:                        RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           R. CHARLES ROBB
ATTORNEY FOR APPELLEES:                           RICHARD H. YOUNG
NATURE OF THE CASE:                               CIVIL - OTHER
DISPOSITION:                                      REVERSED AND REMANDED - 3/11/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   4/12/99




     BEFORE PRATHER, C.J., SMITH AND MILLS, JJ.


     PRATHER, CHIEF JUSTICE, FOR THE COURT:


                                     STATEMENT OF THE CASE

¶1. On February 24, 1995, the County Court of Rankin County entered a judgment against appellant
American Investors, Inc. ("AII") in a lawsuit filed by AII against Stanley and Carol King and Richard
Young ("appellees"). AII perfected an appeal to the Circuit Court of Rankin County on June 26, 1995. On
September 29, 1995, AII filed a petition for bankruptcy, which automatically stayed any acts to obtain
possession of the property which was the subject of the litigation between AII and appellees. See: 11
U.S.C. § 362(a)(3). Based on the bankruptcy filing, AII did not file an appellant's brief with the Circuit
Court by the October 1, 1996 deadline.

¶2. On March 4, 1996, the circuit court, finding that AII had failed to prosecute the appeal, entered on its
own motion an order dismissing the appeal. The order, which was issued without prior notice to either
party, provided that:

     This cause heard on the matter of dismissing the appeal on the grounds that the Appellant has failed to
     comply with Rules 4.00 et seq. of the Uniform Circuit Court Rules governing appeals from judgments
     of the County Court, and it appearing that the record was filed on July 7, 1995, that on September
     21, 1995 the Appellant applied for and was granted a ten (10) day extension to file the required brief
      and assignment of errors but has failed to do so even though five months has now elapsed, the Court
      is of the opinion that the Appellant is in violation of the Rules and that under the opinions in the cases
      of Johnson Limited, Inc. v. Signa, 410 So.2d 1320 (Miss. 1982), Graham v. Murray, 359
      So.2d 1370 (Miss. 1978) and Martin v. City of Waynesboro, 559 So.2d 1024 (Miss. 1990) the
      appeal should be dismissed.

Two days after the issuance of the circuit court's order dismissing AII's appeal, appellees flied a Motion to
Dismiss AII's appeal with prejudice. On March 14, 1996, AII finally filed its brief and later filed a motion to
set aside the dismissal of the appeal. On August 29, 1997, the circuit court entered an order denying AII's
motion to set aside the dismissal, and AII timely appealed to this Court.

      Whether Rules 2 (a)(2) and 31 (d) of the Mississippi Rules of Appellate Procedure, and
      series 4 and 5 of the Uniform Rules of Circuit and County Court Practice, which afford
      procedural due process with regard to discretionary dismissal of an appeal, supersede prior
      case law of Martin v. City of Waynesboro, 559 So.2d 1024 (Miss. 1990), and Graham v.
      Murray, 359 So.2d 1370 (Miss. 1978) which based upon series 4.00 of the Uniform Rules of
      Circuit Court, now superseded by the U.R.C.C.C. and the M.R.A.P.

      The distinction between the applicable rules and erroneous case law is the requirement of
      notice to a defaulting party and a provision of an opportunity to cure any default rather
      than summary dismissal without notice at the discretion of the appellate court.

¶3. The appellees have filed a motion confessing AII's appeal brief, and the error raised by AII is
accordingly not contested by any party. All parties agree, and the record reveals, that the circuit court erred
in dismissing AII's appeal based on Rules 4.00 et seq. of the former Uniform Circuit Court Rules. These
rules have been superceded by the Uniform Rules of Circuit and County Court Practice ("URCCC") and
the Mississippi Rules of Appellate Procedure ("M.R.A.P."), which rules were in effect at the time of the
dismissal of AII's appeal in 1996. AII argues that:

      The lower appellate court in dismissal of the appeal erroneously relied upon rules no longer in force
      and superseded by the combined U.R.C.C.C. and the M.R.A.P. Further the lower court cited case
      law based upon the superceded Uniform Rules of Circuit Court and failed to acknowledge that the
      cited cases allowed for procedural due process in the form of a motion and an opportunity of the
      offending party to cure the default and to be heard on the motion.

      The lower appellate court denied AII substantive due process by entering an order without notice to
      it, without hearing on any motion, and without directing the Clerk of this Court to provide a copy of
      said order to AII.

This Court agrees with AII that the circuit court erred in dismissing AII's appeal without providing AII with
prior notice of the dismissal and an opportunity to cure the default.

¶4. An appeal from county court to circuit court is controlled by the Mississippi Rules of Civil Procedure
("Miss. R. Civ. P"), the URCCC, and the M.R.A.P. M.R.A.P. 2(a)(2), Penalties for Non-Compliance
With Rules; Suspension of Rules, "Discretionary Dismissal", effective January 1, 1995, provides in part
that:

      .... When either court, on its own motion or on motion of a party, determines that dismissal may be
      warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the
      party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct
      the deficiency within 14 days after notification, the appeal shall be dismissed by the clerk of the
      Supreme Court.

URCCC 5.06, effective May 1, 1995, provides in pertinent part that "(t)he consequences of failure to
timely file a brief will be the same as in the Supreme Court."

¶5. It is thus apparent that the circuit court erred in dismissing AII's appeal without giving prior written
notice to AII of its "deficiency" in failing to file an appeal brief and without giving AII 14 days to correct this
deficiency. The circuit judge expressly based his ruling on rules which were not in effect at the time of the
ruling. The record reveals that AII filed an appeal brief within 14 days of the circuit judge's order dismissing
AII's appeal, and it is thus apparent that AII cured its deficiency within the 14 day period prescribed by
M.R.A.P. 2(a)(2). Under the rules in effect at the time of AII"s appeal, AII's appeal should not have been
dismissed due to a failure to prosecute, and the circuit judge erred in ruling to the contrary. The ruling of the
circuit court is reversed, and this case is remanded for further proceedings consistent with this Court's
opinion.

¶6. REVERSED AND REMANDED.

SULLIVAN, P.J., BANKS, McRAE, SMITH AND MILLS, JJ., CONCUR. PITTMAN, P.J.,
WALLER, J., NOT PARTICIPATING.
