MCA Chapter 53

in effect

Miss. Code Ann. § 11-53-1 and 11-53-3. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. § 11-53-1 . [Codes, Hutchinson’s 1848, ch. 58, art. 1 (71); 1857, ch. 61, art. 54; 1871, § 571; 1880, § 2359; 1892, § 861; 1906, § 939; Hemingway’s 1917, § 648; 1930, § 655; 1942, § 1566] § 11-53-3 . [Codes, Hutchinson’s 1848, ch. 58, art. 5 (6); 1857, ch. 61, art. 55; 1871, § 572; 1880, § 2360; 1892, § 862; 1906, § 940; Hemingway’s 1917, § 649; 1930, § 656; 1942, § 1567] Editor’s Notes — Former § 11-53-1 related to security for costs before suit commenced. Former § 11-53-3 related to security for costs after suit commenced.

Miss. Code Ann. § 11-53-5 How security given.

Security for costs may be given by recognizance entered into in open court, or by written undertaking indorsed on or filed with the papers in the cause, or by a deposit with the clerk of the court of the amount in cash or a certified check on any solvent bank in this state. The judgment, when rendered against the plaintiff or complainant, shall be rendered against the surety as well as against the plaintiff or complainant; and execution may be issued as in other cases for all costs for which the plaintiff or complainant may be liable in the cause. Additional security may be required by the court or the justice of the peace, if it appear that the security already taken is insufficient.

Miss. Code Ann. § 11-53-7 Security for costs before justice of the peace.

The foregoing provisions as to securing or paying costs before suit brought, and requiring security for costs after suit commenced, and as to rendering judgment against the plaintiff and surety, shall apply to justices of the peace, and the courts held by them as such, or in proceedings in unlawful entry and detainer, or in any other proceeding; but in those courts the security, when required after the commencement of a suit, shall be given within ten days after the order of the court made for that purpose.

Miss. Code Ann. § 11-53-9 Costs paid from deposit.

In case of a deposit of money or certified check for costs, if the costs be adjudged against the party making the deposit, the clerk or justice shall pay the costs out of the deposit, and the residue to the party entitled thereto. If the party making the deposit be not liable for costs, the whole of the deposit shall be returned to him.

Miss. Code Ann. § 11-53-11 Official bond covers deposit.

The clerk or justice of the peace shall be liable on his official bond to all persons having any claim to or interest in any money so deposited for costs; and for failure to pay over the same, as required, to the person entitled to it, shall, besides any other penalty provided, be liable to be dealt with for contempt by the court in which the deposit was made. A deposit in the hands of a clerk or justice at the expiration of his term of office shall be delivered to his successor.

Miss. Code Ann. § 11-53-13 Security for costs shall not be required in certain suits.

Neither the state, nor any county, city, town, or village, nor any state board, nor any state, county, city, town, or village officer, suing in his official character, shall be required to pay costs before commencing a suit, nor to give security for costs before or after the commencement of a suit.

Miss. Code Ann. § 11-53-15 Usee liable for costs—state as nominal plaintiff.

In suits in the name of the state or any person for the use of another, the usee may be required to secure or pay the costs, and shall be liable therefor; and in no case shall the state, as a nominal plaintiff, be liable for costs.

Miss. Code Ann. § 11-53-17 Poor persons may sue without security for costs.

A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit: “I,_______________ , do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or which I have begun, as the case may be) and that, to the best of my belief, I am entitled to the redress which I seek by such suit.”

Miss. Code Ann. § 11-53-19 Court may dismiss action of poor persons.

The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.

Miss. Code Ann. § 11-53-21 Judgment for costs against poor persons.

In cases commenced or continued on an affidavit of poverty, the officers of the court shall perform all the duties required in the prosecution of the suit, and the witnesses shall attend until released; but in the case of failure to prosecute his suit to effect, judgment shall be given against the plaintiff for costs, and execution may be issued as in other cases.

Miss. Code Ann. § 11-53-23 Costs on dismissal for want of jurisdiction.

When a case shall be dismissed by any court for want of jurisdiction, judgment shall be rendered by such court for costs against the party who invoked the jurisdiction, as in other cases.

Miss. Code Ann. § 11-53-25 Stale cases dismissed at cost of plaintiff.

The clerk of any court shall move the court to dismiss any cause pending therein in which no step has been taken for the two terms preceding; and the court shall, unless good cause be shown to the contrary, dismiss the same at the costs of the plaintiff or complainant.

Miss. Code Ann. § 11-53-27 and 11-53-29. Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. § 11-53-27 . [Codes, Hutchinson’s 1848, ch. 61, art. 1 (74); 1857, ch. 61, art. 255; 1880, § 2375; 1892, § 875; 1906, § 952; Hemingway’s 1917, § 661; 1930, § 668; 1942, § 1579] § 11-53-29 . [Codes, 1892, § 876; 1906, § 953; Hemingway’s 1917, § 662; 1930, § 669; 1942, § 1580] Editor’s Notes — Former § 11-53-27 related to successful party to recover costs generally. Former § 11-53-29 related to successful defendant recovers costs, though plaintiff recover against others.

Miss. Code Ann. § 11-53-31 Successful party liable for certain costs.

All costs accrued at the instance of the successful defendant in a suit, which cannot be collected out of the other party, may be collected from such defendant; and after return of “no property” on execution against a plaintiff or complainant against whom costs were adjudged, execution may be issued against the successful defendant for all cost accrued at his instance and not paid or collected from the other party. A successful plaintiff or complainant shall be liable for all the costs of the case accrued at his instance which cannot be collected from the defendants; and after return of “no property” on execution against the defendant against whom costs were adjudged, execution may be issued against the successful plaintiff or complainant for all the costs of the case accrued at his instance not paid or collected from the defendant. An unsuccessful plaintiff or complainant shall be liable for all the costs of the case.

Miss. Code Ann. § 11-53-33 Costs not recovered in some cases — limited in others.

In actions of assault, assault and battery, libel and slander, if the plaintiff recover less than Ten Dollars ($10.00), costs shall not be awarded to him. In all other actions sounding in damages, where the plaintiff sues for more than Ten Dollars ($10.00) and recovers less than that sum, no more costs than the amount of damages recovered shall be awarded to him, unless the court be of the opinion that the plaintiff had reasonable cause to expect to recover more, and that the action was brought for no other purpose than to be compensated for the wrong done, and enter the same on its minutes. If more costs be awarded, the judgment may be amended on motion at any time.

Miss. Code Ann. § 11-53-35 Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, 1857, ch. 62, art. 56; 1871, § 1035; 1880, § 2374; 1892, § 879; 1906, § 956; Hemingway’s 1917, § 665; 1930, § 672; 1942, § 1583]

Miss. Code Ann. § 11-53-37 Costs in class suits.

Where a party hereafter institutes a suit for the benefit of himself and all others similarly situated, and thereby there is in such suit recovered or preserved property or a fund for the common benefit, the chancery court may make an allowance to such party of the reasonable costs incurred, which costs shall include the necessary disbursements, and reasonable solicitor’s fees, out of the property recovered or preserved for the common benefit.

Miss. Code Ann. § 11-53-39 Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, Hutchinson’s 1848, ch. 49, art. 1 (111); 1857, ch. 60, art. 119; 1880, § 2377; 1892, § 880; 1906, § 957; Hemingway’s 1917, § 666; 1930, § 673; 1942, § 1584]

Miss. Code Ann. § 11-53-41 Executors and administrators entitled to and liable for costs — when not individually liable.

When costs are adjudged against an executor or administrator in a suit at law or in equity, and he shall obtain the certificate of the court before which the suit was tried that there was probable cause for bringing or defending the same, he shall not be individually liable for costs, although the estate may be insufficient to pay them.

Miss. Code Ann. § 11-53-43 Executors and administrators entitled to and liable for costs — in their administration.

Executors and administrators shall be personally liable for the fees which accrue in the administration, and the estates in their hands shall be chargeable with such fees in preference to all other demands. It shall be lawful for the clerk of the chancery court to make out executions for the fees that may become due the officers of court or the publisher of a newspaper at any time in the administration of an estate. Every such execution shall have annexed to it a copy of the bill of costs, specifying the particular items thereof, to be enforced as in other cases.

Miss. Code Ann. § 11-53-45 Next friend of infant liable for costs.

If in any case the plaintiff or complainant be an infant suing by next friend, such next friend shall be liable for costs.

Miss. Code Ann. § 11-53-47 Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, 1880, § 2382; 1892, § 884; 1906, § 961; Hemingway’s 1917, § 670; 1930, § 677; 1942, § 1588]

Miss. Code Ann. § 11-53-49 Costs in cases of setoff.

When a setoff is pleaded or filed and established, the defendant shall recover of the plaintiff his costs expended in establishing it, although judgment be rendered in favor of the plaintiff for a balance due him.

Miss. Code Ann. § 11-53-51 Costs in cases of appeal from justices of the peace.

In cases of appeal from a judgment of a justice of the peace, if the appeal be by the defendant, and judgment be rendered thereon for the plaintiff equal to or greater than that recovered by him before the justice of the peace, he shall recover of the defendant full costs; but if the judgment for plaintiff be less than that recovered by him before the justice of the peace, the court may, on motion of defendant, apportion the costs between the parties as may be proper, otherwise defendant shall be liable for all the costs. If the judgment on such appeal be rendered for the defendant, he shall recover of the plaintiff full costs. If the appeal be by plaintiff from a judgment rendered against him, and he recover judgment thereon, he shall recover of the defendant full costs; but if the defendant recover judgment thereon, he shall recover of plaintiff full costs. If a party appeal from a judgment in his favor, and does not obtain judgment for more than he recovered before the justice of the peace, he shall not recover costs that accrued on appeal, but shall be liable for such costs. But in such cases the circuit court, may, when the circumstances justify it, tax the costs to meet the ends of justice. In all cases where the principal is made liable for costs, judgment shall be rendered therefor against him and the sureties on his appeal bond jointly.

Miss. Code Ann. § 11-53-53 Costs in cases of certiorari and appeals from certain inferior tribunals.

In all cases of certiorari upon the judgment of any inferior court or tribunal, and the cases of appeal from the judgment of a board or supervisors, of a court of unlawful entry and detainer, of any municipal board or court, the successful party shall be entitled to recover full costs; but the circuit court may, when the circumstances of the case justify it, tax the costs to meet the ends of justice.

Miss. Code Ann. § 11-53-55 Cases not expressly embraced by statute or Rule.

If a case shall occur in any court not embraced expressly by statute, Mississippi Rules of Civil Procedure or Mississippi Supreme Court Rules, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper.

Miss. Code Ann. § 11-53-57 Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, Hutchinson’s 1848, ch. 33, art. 4 (2); 1857, ch. 8, art. 2; 1880, § 2387; 1892, § 890; 1906, § 967; Hemingway’s 1917, § 676; 1930, § 683; 1942, § 1594]

Miss. Code Ann. § 11-53-59 and 11-53-61. Repealed.

Repealed by Laws of 1977, ch. 408, § 2, eff from and after passage (approved March 29, 1977), and further providing that any funds previously collected under said section shall be paid to the circuit clerk of each county and utilized in accordance with the provisions of this section. § 11-53-59 . [Codes, 1942, § 1594.5; Laws, 1962, chs. 298, 304; Laws, 1964, ch. 321; Laws, 1968, ch. 331, § 1; Laws, 1968, ch. 332, § 1; Laws, 1969 Ex Sess, ch. 21, § 1; Laws, 1971, ch. 420, § 1, eff from and after passage (approved March 23, 1971); Am 1972, ch. 442, § 1] § 11-53-61 . [Codes, 1942, § 1594.7; Laws, 1970, ch. 338, § 1, eff from and after the first day of the next succeeding month after passage (approved March 6, 1970)] Editor’s Notes — Former § 11-53-59 related to collection of library fee as costs in certain counties. Former § 11-53-61 related to collection of library fees as costs in additional counties.

Miss. Code Ann. § 11-53-63 Repealed.

Repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, 1880, § 2383; 1892, § 891; 1906, § 968; Hemingway’s 1917, § 677; 1930, § 684; 1942, § 1595]

Miss. Code Ann. § 11-53-65 Bill of costs made and filed.

When a cause shall be determined, the clerk of the court, and the justice of the peace in cases had before him, shall tax the costs of the case and make out a bill thereof, specifying therein each section of the law, and each paragraph or subdivision of section, if any, by virtue of which each fee or item of costs therein is charged or taxed, and he shall file the same with the papers in the cause.

Miss. Code Ann. § 11-53-67 Fees not payable until bill produced.

Fees and costs shall not be payable by any person until there be produced to the person chargeable with the same a bill, or account in writing, containing the particulars of such fees, signed by the clerk or officer, in which shall be intelligently expressed and specified each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each fee is charged. If any fee shall be paid without the production of such bill, the party paying the same shall at all times be entitled to demand and have from the officer receiving the same a copy of such bill without charge.

Miss. Code Ann. § 11-53-69 Costs not due until suit ended.

The costs accruing upon suits in any court shall not be due until the final determination thereof, and may then be collected by execution; but the judges shall have power to order and adjudge costs and give decrees and judgments thereon in the progress of suits, as heretofore practised in said courts.

Miss. Code Ann. § 11-53-71 Taxation of costs in cases from justices of the peace.

The clerk of the circuit court is required to tax in the bill of costs, after final judgment, all the costs that accrued on the trial before a justice of the peace, or before any other inferior tribunal or court, in all cases carried to the circuit court by appeal or by certiorari, and include the same in the execution issued for the costs accruing in the case in the circuit court.

Miss. Code Ann. § 11-53-73 Execution for costs.

It shall be lawful for the clerks of the several courts, when suits or causes are determined and the fees not paid by the party from whom they are due, to make out executions, directed to the sheriff or other proper officer of the county where the party resides; and the sheriff or other officer shall execute and return such execution as in other cases.

Miss. Code Ann. § 11-53-75 Bill of costs appended to execution.

On all executions in which any costs are included, there shall be entered thereon or annexed a copy of the bill of costs, specifying the particular items thereof, in intelligible words and figures, and each section of the law, and, if any, each paragraph or subdivision of section by virtue of which each item therein is charged; and all such executions issuing without the copy of such bill of costs shall be illegal, and the sheriff or other officer shall not execute the same. The sheriff or other officer receiving the same shall add thereto, in like manner, his fees, including all additional fees and costs, and shall make out a fair copy of the same and deliver it, on demand, to the person from whom he receives the money or out of whose property he makes the same.

Miss. Code Ann. § 11-53-77 Combining orders and decrees to save costs.

It shall be the duty of the judges of the several courts to require the clerks to combine in one judgment or decree as many interlocutory or other orders as can be lawfully and conveniently done, with a view to prevent the increase of costs, and, on application of any party, to correct any incorrect bill of costs as charged and made out by a clerk.

Miss. Code Ann. § 11-53-79 Table of fees to be posted conspicuously.

It shall be the duty of the clerks of the circuit and chancery courts, and of the sheriff, to post in a conspicuous place in his office, and each justice of the peace at his place of holding court, a copy of the bill of fees which he is entitled to receive, and on failure to do so he shall not be entitled to receive or collect any fee for any service rendered during the time of such failure.

Miss. Code Ann. § 11-53-81 Recovery of attorney’s fees in suit on open account.

When any person fails to pay an 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.