Rule 42 Voluntary Dismissal

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 42 replaced Miss.Sup.Ct.R. 42, embracing proceedings in the Court of Appeals. 644-647 So.2d LXXXI-LXXXII (West Miss.Cases 1994).

Comment

Subdivision (a) of Rule 42 is modeled on Fed.R.App.P. 42(a). It departs from previous practice and procedure in that the lower court may dismiss an appeal which has been perfected in the lower court, but not yet docketed with the Supreme Court, where all parties or their attorneys sign a stipulation of dismissal. However, because an appeal is docketed when the notice of appeal is filed with the Supreme Court clerk, see Rule 13(a), the circumstances in which such a dismissal can take place should be rare.

Section (b) is a restatement of existing case law in Mississippi regarding voluntary dismissal of an appeal. It reiterates the long recognized rule that while a voluntary dismissal of an appeal will usually be granted, the appellate court may have special reasons to refuse to grant the motion for a voluntary dismissal filed by the appellant, and further recognizes that an appellant's right to dismiss an appeal is not absolute, but subject to the discretion of the court. See Wolf v. Miss. Valley Trust & Co., 130 Miss. 144, 93 So. 581 (1922). Once an appeal is voluntarily dismissed, no further appeal may be brought. Miss. Code Ann. § 11-3-15 (1991).