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USF&G Insurance Co. of Mississippi v. Walls9/15/2005
. The numbering is a byproduct of the patterning of the Mississippi Rules of Civil Procedure after the Federal Rules of Civil Procedure, which do have class actions. See Owens v. Thomae, 759 So.2d 1117, 1121 n.2 (Miss. 1999). The comment to Mississippi Rule 23 was meant to convey our reluctance to adopt the elaborate mechanisms of the class action, since " ew procedural devices have been the subject of more widespread criticism and more sustained attack-and equally spirited defense-than practice under Federal Rule 23 and its state counterparts." Miss. R. Civ. P. 23 cmt.
. Yet the comment was ambiguous. The first sentence reads: " lass action practice is not being introduced into Mississippi trial courts at this time." (emphasis added). For it is a matter of fact and law that "class actions were recognized in Mississippi as a matter of general equity jurisdiction long before adoption of the Mississippi Rules of Civil Procedure," so no introduction was necessary. Phillips, at 455 (emphasis added). See also Marx v. Broom, 632 So. 2d 1315, 1322 (Miss. 1994) (noting that " rior to the enactment of the Rules of Civil Procedure, this Court recognized the possibility of class action suits as a matter of general equity jurisdiction in chancery court under limited circumstances"). This has long been accepted. The "lawyer's bible" of chancery practice in Mississippi, Mississippi Chancery Practice, details the ambiguity. "It was not necessary to introduce class action, as it already existed." Griffith, Mississippi Chancery Practice, § 130 (2000) ("Griffith") (emphasis added).
. Furthermore, " he Mississippi Code has long provided and still provides for costs in class action suits in the Mississippi chancery courts." Phillips, at 458 (emphasis added); see also Griffith, at § 130 (" rovision is made for costs in class actions"). Miss. Code Ann. § 11-53-37 (Rev. 2002), adopted in 1948, specifies:
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. (emphases added). Section 11-53-37 presents a conflict with Rule 23.
. Three commentators have noted the statute's existence and simply relied upon the section as evidence that Mississippi has class action suits at equity. See Geoffrey P. Miller & Lori S. Singer, Non-pecuniary Class Action Settlements, 60 Law & Contemp. Probs. 97, 146 (1997) (under the table "State Rules," showing that Mississippi " ecognizes common fund by statute," citing to Section 11-53-37); Phillips, at 458; Kurt A. Schwarz, Note, Due Process and Equitable Relief in State Multistate Class Actions after Phillips Petroleum Co. v. Shutts, 68 Tex. L. Rev. 415, 450 n.84 (1989) (offering that while "Mississippi has no formal rule [pertaining to class actions] . . . section 11-53-37 permits costs and attorneys' fees in successful class suits").
. The original version of the Encyclopedia of Mississippi Law also "recognized that in limited circumstances, class action suits might be possible within the general equity jurisdiction of the chancery court." J. Jackson, M. Miller, R. Morton, and J. Matheny, Civil Procedure, in 2 Ency. of Miss. Law § 13:59 (J. Jackson & M. Miller eds. 2001). It is also written that " enerally . . . the class action remains an available remedy only in chancery[,] from whence it sprang." T. Jackson Lyons, Corporations, in
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