Miss. R. App. P. 36

As amended through October 31, 2024

Rule 36 - Costs

(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Supreme Court or the Court of Appeals. If a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered. If a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered. If a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court which decided the case.

(b) Costs for and Against the State of Mississippi. Costs may be awarded for or against the State of Mississippi or any of its agencies, or officers, or political subdivisions unless otherwise provided by law.

(c) Costs on Appeal Taxable in Court Below. Costs incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.

(d) Rehearing and Retaxing Costs. If the allowance or disallowance of costs or other matter affecting the judgment has been incorporated in the opinion, a party seeking relief may file a petition for rehearing under Rule 40. All motions to retax costs in the Supreme Court or the Court of Appeals must be filed within 14 days after issuance of the mandate or any addition to the mandate. A party who is not aggrieved by the opinion or mandate but who seeks relief as to any other matter involving costs shall seek relief in the trial court.

Miss. R. App. P. 36

Amended 6/21/1996.

Advisory Committee Historical Note

Effective June 21, 1996, Rule 36(d) and the Comment were amended to redesignate rehearing "petitions" as "motions." 673-678 So.2d XLI (West Miss. Cases 1996).

Effective January 1, 1995, Miss.R.App.P. 36 replaced Miss.Sup.Ct.R. 36, embracing proceedings in the Court of Appeals. 644-647 So.2d LXXVI-LXXVII (West Miss.Cases 1994).

Effective January 1, 1994, the Comment to Miss.Sup.Ct.R. 36 was amended to delete unnecessary statutory references and delete a reference to a repealed statute. 632-635 So.2d LIII-LIV (West Miss.Cases 1994).

Comment

Rule 36 follows Fed. R. App. P. 39 and, in some respects, prior law. Subdivision (a) gives the both appellate courts discretion in taxation of costs. The Supreme Court has traditionally taxed costs as it thought "proper." See Miss. Code Ann. 11-3-37, 11-3-39(1991).

Subdivision (b) departs from Fed. R. App. P. 39(b) and reflects the general state rule that the state and its agencies are liable for costs unless a statute provides otherwise. Without such liability, court officials would have no source from which to collect costs. See State Board of Registration v. Rogers, 121 So. 2d 720, 721 (Miss. 1960); Miss. Code Ann. 25-7-7, 99-35-105 (Supp. 1986). The state, its subdivisions, and their officers, by statute, are not generally liable, however, for prepayment of costs. Miss. Code Ann. 11-53-13(1972); City of Mound Bayou v. Roy Collins Construction Co., 457 So. 2d 337, 340 (Miss. 1984).

Subdivision (c), for the convenience of the parties, makes all costs taxable in the trial court. Judgment may be rendered against an obligor on a supersedeas bond. See Rule 8(d); Miss. Code Ann. 11-3-27(1991). A party suing to enforce a judgment for costs is entitled to recover attorneys' fees. Miss. Code Ann. 11-3-41(1991). While execution should ordinarily be sought in the trial court, the appellate court retains the power to issue execution for costs.

Subdivision (d) provides that if the allowance or disallowance of costs or other matter affecting the judgment has been incorporated in the opinion, the proper procedure for seeking relief is a petition for rehearing under Rule 40. Normally, however, each court will tax costs in its judgment, and not in its opinions. The court does not send the parties a copy of the judgment until the mandate issues. See Rule 41. For this reason, subdivision (d) provides a 14 day period after issuance of the mandate for the filing of a motion to retax costs. Other parties may not be aggrieved by the mandate and yet may wish to challenge some aspect of the taxation of costs. For example, the mandate usually does not fix the amount of costs to be taxed. A party may admit liability yet wish to challenge the amount taxed. Subdivision (d) provides that relief in such cases is to be sought in the trial court.

The clerk of the Supreme Court continues to have the discretion to deny costs to a trial court clerk if the record is not properly prepared.

[Amended June 21, 1996.]

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