Walker v. McKenzie, et al.
| Docket Number: | 2004-CP-02162-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-26-2006 Opinion Author: GRIFFIS, J. Holding: Affirmed in Part, Reversed & Remanded in Part |
|
| Additional Case Information: |
Topic: Personal injury - Failure to prosecute Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 10-13-2004 Appealed from: MARION COUNTY CIRCUIT COURT Judge: Michael R. Eubanks Disposition: PLAINTIFF’S CLAIMS DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE THE CASE. Case Number: 2003-0141 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | DEMARIO WALKER |
DEMARIO WALKER (PRO SE) |
||
| Appellee: | MARY MCKENZIE, MARYLIN PAYNE, JOHNNY GLOVER, COREY GRAHAM, TERRY WATTS, CHARLES HOWARD, AND MARION COUNTY BOARD OF SUPERVISORS | J. LAWSON HESTER, PAUL H. KIMBLE |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Personal injury - Failure to prosecute |
| Summary of the Facts: | Demario Walker filed a lawsuit against Mary McKenzie, Marilyn Payne, Johnny Glover, Corey Graham, Terry Watts, Charles Howard, and Marion County. Walker’s claims result from incidents that occurred during his imprisonment in the Marion-Walthall Correctional Facility. The judge dismissed the case without prejudice, and Walker appeals. |
| Summary of Opinion Analysis: | Walker argues that the court erred in dismissing the complaint for a failure to prosecute and failure to appear, knowing that the plaintiff was incarcerated and unable to attend the trial without a court order directing his appearance. Dismissal without prejudice was proper under the circumstances. The circuit court simply granted the relief that Walker himself requested. In his sworn “Joint Motions to Dismiss Certain Defendants and for Default Judgment,” Walker requested the dismissal of all defendants except Terry Watts and Charles Howard. However, the record indicates that defendant Charles Howard was duly served with process, failed to enter an appearance or otherwise defend this action, and Walker properly filed a motion for default judgment as to the claims against Howard. Therefore, the order of dismissal as it relates to Charles Howard must be reversed and remanded to allow further proceedings. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
