85 So. 87 | Miss. | 1920
delivered the opinion of the court.
The motion, which the reporter will set out in full, together' with the statement of the case contained in the opinion handed down when the judgment sought to. be corrected was rendered, will set forth the facts sufficient for an understanding of the questions here determined.
The grounds of the motion will be disposed of seriatim.
1. The decree rendered here is that which should have been rendered in, and is for all practical purposes the decree of, the court below, and must be enforced by it. Consequently any credit which may be due the appellants thereon because of any execution issued during the pend-ency of the appeal can be taken care of in the court below.
2. The decree appealed from was not in favor of the appellees' in solido, as hereinbefore stated, but contained separate judgements in favor of each of them! for the amount found due him or her as the case may be, and the reversal was only of the judgments in favor of two of them. The practical effect of the judgment here sought to be collected is that all of the judgments on the decree were affirmed, except the two that were reversed. The claims of the various appellees having been separated in the decree as to the amounts recoverable by them, it was not necessary, for an appeal to have been taken from the entire decree, but could have been taken from each of the judgments therein rendered.
3. The appellee’s right, to a judgment for the five per cent, penalty imposed by section 4926, Code of 1906 (Hemingway’s Code, section 3202), is not dependent upon whether or not the decree appealed from was stayed
4. The appellees whose judgments were affirmed should not be taxed with any part of the costs incurred herein, and the taxation heretofore made of one-eighth thereof to the two appellees whose .judgments were reversed seems to be an equitable apportionment thereof.
5. This contention is well taken to this extent, that the appellants should be relieved of one-eighth of the costs in the court below, and this one-eighth should be taxed against those appellees whose judgments were reversed.
6. The sureties here referred to appear, from the judgment rendered, to have been included in the -taxation of the costs, but if they have not they should be.
The motion will be -overruled, except as set forth in the paragraph hereof numbered 5.
Overruled in part and sustained in part.
