Miss. R. App. P. 43

As amended through March 21, 2024

Rule 43 - Substitution of Parties

(a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the Supreme Court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appropriate appellate court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this Rule 43(a). If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by that party's personal representative, or, if there is no personal representative, by that party's attorney of record within the time prescribed by these rules. After the notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this Rule 43(a).

(b) Substitution for Other Causes. If substitution for a party in either appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in Rule 43(a).

(c) Public Officers: Death or Separation From Office.

(1)Substitution. When a public officer is a party in an official capacity to an appeal or other proceeding in either appellate court and, during its pendency, the officer dies, resigns, or otherwise ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but failure to enter such an order shall not affect the substitution.

(2)Use of Title. When a public officer is a party to an appeal or other proceeding in an official capacity, that public officer may be described as a party by the public officer's official title rather than by name, but the court may require the public officer's name be added.

Miss. R. App. P. 43

Advisory Committee Historical Note

Effective January 1, 1995, Miss.R.App.P. 43 replaced Miss.Sup.Ct.R. 43, embracing proceedings in the Court of Appeals. 644-647 So.2d LXXXII-LXXXIII (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 43 was amended to delete references to repealed statutes and material concerning the transition from statutory procedures to Rule practice, and to effect attendant technical changes. 632-635 So.2d LIV (West Miss.Cases 1994).

Comment

Rule 43 is patterned after Fed. R. App. P. 43. It applies to civil cases only, and not to criminal cases. Berryhill v. State, 492 So. 2d 288 (Miss. 1986) (dismissing criminal appeal on death of defendant).

When the party against whom an appeal is taken dies after judgment in the lower court but before the appeal has been perfected, the appellant may proceed as if death had not occurred and substitute under Rule 43 after the appeal has been perfected.

Likewise, the personal representative of a deceased party who dies before perfecting the appeal may file the notice of appeal. If there is no representative, the attorney of record may perfect the appeal and substitute a representative after perfection. However, the perfection still must be timely in accordance with Rule 4 or 5.

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