Wednesday, April 15, 2015

Effect of Appeal on Lower Court Relief

In Mississippi, the caselaw is a little sketchy on what affect an appeal has on the ability of the lower court to change the judgment.  The Mississippi supreme court has held that ordinarily the filing of a notice of appeal transfers jurisdiction of a matter from the lower court to the appellate court, and the lower court no longer has the authority to amend, modify, or reconsider its judgment. McNeese v. McNeese, 129 So. 3d 125, 128 (¶7) (Miss. 2013). If an appeal has no supersedeas bond, as in this case, a party may execute on the judgment, but the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” McNeil v. Hester, 753 So. 2d 1057, 1076 (¶68) (Miss. 2000).  My reading of this is that the trial court can still enforce the judgment through contempt power.  However, some commentators including noted fellow blogger Larry Primeaux disagree.  The biggest question I have is what happen if say a custody case is on appeal and it is determined that one parent is abusing a child?  Can the court do nothing, or can you file a separate action for relief outside of the case that is on appeal?  There is still some old caselaw that seems to give the trial court the ability to fix some problems while an appeal is pending.  The issue is pretty rare, but with the right fact pattern some relief can be obtained.  The flip side of the issue is, if the trial court has no jurisdiction, could you file for a modification in the appellate court with a request for the Court of Appeals to hear it or transfer the case to the trial court.  My gut says yes with the filing of a possible interlocutory appeal to get some action by a court no matter which one it is. 

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