Crystal Springs Bank v. New Orleans Cattle Loan Co.

96 So. 309 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

The appeal bond executed herein by the appellant superseded the execution of the decree appealed from and in entering the judgment of affirmance rendered on a former day the clerk included in the judgment the following provision :

“And that appellee do have and recover of appellant and H. J. Wilson and W. S. Henley, sureties in the supersedeas bond, the sum of six thousand one hundred ninety-seven dollars and ten cents, the amount of the decree in the court below, and three hundred nine dollars and eighty-six cents, being damages at the rate of five per centum as allowed by law, as well as interest ion the amount of said decree from date of rendition till paid at the rate of six per centum per annum, and also cost of this cause in this court and in the court below, to be taxed,” etc.

A motion is made by the appellant to correct the decree by eliminating this provision therefrom. It will be necessary to add to the statement of the facts contained in our former opinion (95 So. 520) only that Mathis owes the appellee the snm of sixteen thousand seventeen dollars and twenty-five cents, that the money in the hands of the receiver amounts to six thousand one hundred ninety-seven dollars and ten cents, and that the debt of Mathis to the appellant, as set forth in its petition for leave to intervene, amounts to “ten thousand dollars or more.” The effect of the decree appealed from is to establish a lien or claim or charge on the money in the hands of the receiver for payment on the debt -due by Mathis to the appellee, and the complaint of the appellant is that it was not permitted to establish a claim or charge on the money for the payment of the debt due it by Mathis. Section 4926, Code of 1906 (section 3202, Hemingway’s Code), provides: “In case the judgment or decree of the court below be affirmted, . . . the supreme court shall render judgment against the appellant for damages, at the rate of five per centuto and costs, as follows: ... If the judgment or decree . . . establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it,' if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the.damages shall be upon the amount of the judgment or decree.”

Under this statute it seems clear that the appellee is entitled to five per cent, damages on the amount of the money in the hands of the receiver, and which the appellant seeks to have applied to the payment of the debt due it by Mathis. The statute under which the appellee seeks to uphold .the judgment ¿gainst the appellant and his bondsmen for the amount of money in the hands of the receiver, with five per cent, interest thereon, is section 4928, Code of 1906 (section 3204, Hemingway’s Code), and is as follows:

“In case a bond has been given for a supersedeas, the judgment of the supreme court, on affirming the judgment or decree of the court below, or on a dismissal of the appeal by the appellant or the court, shall be for thespioney adjudged or decreed against appellant, and damages and costs, or for the specific property and damages and costs, or for the damages and costs, as the case may be, against all the obligors in the bond who may be living at that time, and execution may be issued thereon accordingly. . . .”

This statute has no application here, for the reason that the decree appealed from does not direct the appellant to pay to the appellee any money whatever, or tó deliver to it any specific property. It simply disallows, in so far as this appeal is concerned, the appellant’s claim to subject the money in the hands of the receiver to the payment of the debt due it by Mathis. We are not here concerned with the right vel non of the appellee to recover on the supersedeas bond for any damage that it may have suffered because of the execution thereof, and express, no opinion relative thereto.

It follows, from the foregoing views, that the appellee is entitled to a judgment for five per cent, damages against the appellant and his bondsmen, but not for the money in the hands of the receiver and interest thereon, and the judgment hereinbefore entered will be corrected accordingly.

Affirmed Conditionally.