Rule 81 Mess

The Court of Appeals in Mississippi threw a big curve ball yesterday in Curry v. Frazier.  A link to the opinion is here.   If the Mississippi Supreme Court does not take up the issue, from my reading of the opinion you may now have to issue a Rule 81 summons and serve the other party on a counterclaim.  Potentially to me the facts are distinguishable.  To me it looks like the issue was that the original petitioner had only issued a Rule 4 summons. As such, there was no attachment of jurisdiction over the parties to decide a Rule 81 matter. My opinion has been that jurisdiction attaches to both parties on a Rule 81 matter since equity does not occur in halves and that a counterclaim can be heard at the trial of the original Rule 81 matter with Rule 5 notice to the opposing party.  This is a potential mess the Rules Committee needs to look at.  I think the dissent had the right idea that you waive the issue if you participate in the hearing.  Might be worth updating the office forms to add a waiver provision for serve of process on a counterclaim in an order setting a matter for trial.