It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter's transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial.I.e., no, a Rule 59 motion is *not* a prerequisite to filing an appeal. Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).
Wednesday, October 05, 2011
Aide-memoire
Why can I never remember this?
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Do not be so hard on yourself. The MSSCT does not always remember it either.
ReplyDeleteOn the right case, usually civil, they will remember. Otherwise the procedural bar will drop on you.
It does seem like the sort of issue that the court would address directly in a rule, if it wanted to be clear about it.
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