Memorandum of Defendants in Support of Motion to Amend Judgment

     [||72e70fe3-139d-4dc7-8bcb-f785f6a04b0e||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, et al., 

PLAINTIFFS 

Y. CIVIL ACTION 
NO. WC 70-53-K 

D. L. HARRISON, et al. , 

DEFENDANTS 

MEMORANDUM OF DEFENDANTS IN 

SUPPORT OF MOTION TO AMEND JUDGMENT 
  

On March 2, 1976 this Court entered an Order declaring that 

the members and executive secretary of the Mississippi State Textbook 

Purchasing Board be assessed in their official capacity with liability for 

the sum of $23,852.00 as attorney fees due and payable to counsel for 

plaintiffs and $4,999.44 taxable costs incurred by plaintiffs. Defendants 

filed a Notice of Appeal from this Order and filed a Motion for Stay Without 

Supersedeas Bond, which this Court granted by Order dated March 22, 1976. 

As a condition of the Order of March 22, 1976, it was provided that if the 

Order of March 2, 1976 is affirmed on appeal, then the amount of the award 

so affirmed shall bear interest in the amount of eight percent (8 %) per 

annum from March 2, 1976 until paid. 

 



  

The appeal was briefed and argued to the United States Court 

of Appeals for the Fifth Circuit, which rendered an opinion on November 21, 

1977, in which that Court held that the Order of this Court of March 2, 1976 

from which the appeal was taken was not a "final judgment" from which an 

appeal may be taken. Accordingly, the Court of Appeals ordered that the 

appeal be dismissed. Norwood v. Harrison (5 Cir. , 1977, No. 76-1865). 

Defendants submit that the fact that the Court of Appeals has 

held that the Order of March 2, 1976 was not an appealable order is per- 

suasive and strong authority for this Court to amend its Amended Order 

of February 27, 1978 so as to provide that interest should run on the 

judgment from and after the entry of the Final Judgment of this Court dated 

January 3, 1978, and not from the date of the prior Order of this Court. 

First, the terms of the Order of this Court of March 22, 1976 

granting the motion of defendants for stay of the Order of March 2, 1976 

provides that: 

In the event that such Order [of March 2, 

1976] is affirmed on appeal, then the amount 

of the award so affirmed shall bear interest 
in the amount of 8 % per annum from 
March 2, 1976, until paid. 

(Emphasis added.) 

The Order of this Court of March 2, 1976 was not affirmed by the Court of 

Appeals. The appeal was dismissed. The provision in this Court's Amended 

Order of February 27, 1978 that interest should run from March 2, 1976 until 

paid appears to be contrary to the intent of the March 22, 1976 Order of this 

Court. 

Secondly , Rule 54(a) of the Federal Rules of Civil Procedure 

specifies in pertinent part that: 

'Judgment' as used in these rules includes a 

decree and any order from which an appeal 

lies. 

 



  

It has been held that a "final decision" from which an appeal 

is permitted under 28 U.S.C., § 1291 is equivalent to a "judgment", as 

defined by Rule 54(a), F.R.C.P. . In Re Forstner Chain Corp. , 

177 F. 2d 572 { Cir. , 1949). - 

Since it is clear that the March 2, 1976 Order of this Court 

was not a "judgment" within the meaning of the Federal Rules of Civil 

Procedure, it would be inequitable to access interest against defendants 

from the date of the entry of such Order. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 

ASSISTANT ATTORNEY GENERAL 

er 
  

PETER M. STOCKETT,! JR. 

 



  

CERTIFICATE OF SERVICE 
  

The undersigned, Peter M. Stockett, Jr., Assistant Attorney 

General for the State of Mississippi, hereby certifies that a true and 

correct copy of the foregoing Motion to Amend Judgment and Notice of 

Motion have been mailed by United States mail, postage prepaid, to the 

following: 

Bill Lann Lee, Esq. 

Jack Greenberg, Esq. 

10 Columbus Circle, Suite 2030 

New York, New York 10019 

Fred L. Banks, Jr. , Esq. 

538 1/2 North Farish Street 

Jackson, Mississippi 39202 

This the’ HD. day of March, 1978. 

Lee m <latr T 
  

PETER M. STOCKETT,'JR. [||72e70fe3-139d-4dc7-8bcb-f785f6a04b0e||]