61 P.2d 1257 | Or. | 1936
On motion for modification of mandate of supreme court.
MOTION ALLOWED.
For former opinion see
This court in its original opinion, rendered March 3, 1936,
The mandate has not yet been sent down to the circuit court, due to the fact that after the modification of the former opinion the appellant applied to the supreme court of the United States for a writ of certiorari, which writ was, on October 12, 1936, denied by that court, since which date the mandate of that court has been received and filed by the clerk of this court.
Section 57-1201, Oregon Code 1930, provides in part as follows:
"The rate of interest in this state shall be six per centum per annum and no more, and shall be payable in the following cases, to wit:
"1. On all moneys after the same becomes due . . .
"2. On judgments and decrees for the payment of money from the date of the entry thereof unless some other date is specified in said judgment or decree." *652
This court, acting under authority granted to it by article VII, § 3, Constitution of Oregon, was able to "determine what judgment should have been entered in the court below" as to the second cause of action, and it entered judgment accordingly as to that cause of action. The amount which was thereby awarded by this court on the second cause of action was for unliquidated damages and was not determined until the decision of this court was rendered on the petition for rehearing. Therefore, interest on the $300 awarded on the second cause of action should be allowed only from June 2, 1936: Morris v. Standard Oil Company,
The verdict of the jury and the judgment of the circuit court each distinctly stated the amount which had been awarded the plaintiff by the jury on each of the separate causes of action, and under subdivision 2 of § 57-1201, supra, the plaintiff was entitled to recover interest on the amount of $700 found by the circuit court to be due him on the first cause of action, from the date of the judgment in the trial court, that is, December 5, 1934, which amount was not altered or modified by this court, and interest also on the costs allowed by the circuit court, from the date of the judgment of that court. See, in this connection: 4 C.J. 1181, § 3215; 33 C.J. 247, § 160; Kneeland v.American Loan and Trust Company,
The motion of the respondent for correction of the mandate is allowed as hereinabove indicated.
CAMPBELL, C.J., and BEAN and RAND, JJ., concur. *654