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IN THE SUPREME COURT OF MISSISSIPPI

NO. 89-R -99001 SCT

IN RE: MISSISSIPPI RULES OF CIVIL PROCEDURE IN ALL CHANCERY, CIRCUIT AND COUNTY COURTS OF THE STATE

ORDER This matter has come before the Court, en banc, upon petition of the Mississippi Supreme Court Rules Advisory Committee for amendment of certain rules, comments and historical notes to the Mississippi Rules of Civil Procedure. Having considered the proposal, the Court finds that such amendment will promote the fair and efficient administration of justice and that is should be adopted. NOW, THEREFORE, IT IS ORDERED that Rule 4(f) to the Mississippi Rules of Civil Procedure and to the accompanying comment and historical note shall be and are hereby amended as set out in Appendix A to this order. IT IS FURTHER ORDERED that Rule 15(c) to the Mississippi Rules of Civil Procedure and to the accompanying comment and historical notes shall be and are hereby amended as set out in Appendix B to this order. IT IS FURTHER ORDERED that the historical note set forth in Appendix C hereto shall be and is hereby added to the historical notes for Rule 43 of the Mississippi Rules of Civil Procedure.

IT IS FURTHER ORDERED that Rule 45 of the Mississippi Rules of Civil Procedure and the accompanying comment shall be and are hereby amended as set forth in Appendix D to this order, with the addition of the historical note indicated therein. IT IS FURTHER ORDERED that all such amendments shall be effective on July 1, 1998. IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court . SO ORDERED, this, the __________ day of May, 1998.

______________________________________ WILLIAM L. WALLER, JR., JUSTICE, FOR THE COURT PITTMAN, P.J. NOT PARTICIPATING MCRAE, J. WOULD DENY THE PROPOSED AMENDMENT OF RULES 4(f) BECAUSE THE CONSEQUENCES MUST BE DEFINED. MCRAE, J. WOULD DENY THE PROPOSED AMENDMENT OF RULE 15(c) BECAUSE IT IS RESTRICTIVE OF Brown v. Winn Dixie. MCRAE, J. WOULD DENY THE PROPOSED AMENDMENT OF RULE 45.

APPENDIX A RULE 4. SUMMONS * * * * * (Intervening text unchanged) (f) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. . . . Failure to make proof of service does not affect the validity of the service.

* * * * * (Intervening text unchanged) [Amended effective May 1, 1982; March 1, 1985; February 1, 1990; July 1, 1998.]

Advisory Committee Historical Note * * * * * (Intervening text unchanged.) Effective July 1, 1998, Rule 4(f) was amended to state that the person serving process shall promptly make proof of service thereof to the court.

Comment * * * * *(Intervening text unchanged.) Rule 4(f) provides that the person serving the process shall promptly file a return of service with the court. Prior to revision in 1997, the rule sanctioned making the return at any time before the person served was required to respond. The failure to promptly file a return may precipitate a default or defeat a defendant's right to remove the case. The purpose of the requirement for prompt filing is to avoid these problems that may arise when a defendant is unable to verify the date of service by examining the return of service in the court records. * * * * * (Intervening text unchanged.) [Comment adopted effective March 1, 1986; amended effective February 1, 1990; July 1, 1998.]

APPENDIX B RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS

* * * * * (Intervening text unchanged.) (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment: (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading. * * * * * (Intervening text unchanged.) [Amended effective July 1, 1998.]

Advisory Committee Historical Note Effective July 1, 1998, Rule 15(c) was amended to state that the relation back period includes the time permitted for service of process under Rule 4(h).

Comment * * * * *(Intervening text unchanged.) Prior to the Mississippi Rules of Civil Procedure, it was the law that amendments relate back to the date of the original pleading only when, generally, the amended bill stated no new cause of action and brought in no new parties. Brown v. Goolsby , 34 Miss. 437 (1857); Potts v. Hines, 57 Miss. 735 (1880); V. Griffith, supra,

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