Howie v. Bonds
40 So. 227
Miss.
1905
Check Treatment
Whitfield, C. J.,

delivered the opinion of the court on the motion.

The record discloses a judgment of affirmance, not one of reversal. Where a remittitur is entered as a condition of affirmance, what follows is just as much an affirmance as in a case where there is an unconditional affirmance. The judgment entered being, therefore, one of affirmance, as shown by the face of the record, it was proper to allow the five per cent damages provided by the statute in cases of affirmance. We do not think any just distinction can'be made as to the right to damages on affirmance between actions arising ex delicto and those arising ex contractu. In the two c^ses referred to by the appellant—Delta & Pine Land Co. v. Wallace, 83 Miss., 656 (36 South. Rep., 263), which arose ex contractu, and Carver v. Jackson, 82 Miss., 583 (35 South. Rep., 157), which arose ex delicto, and in both of which a remittitur was entered — the record does not show any effort on the part of appellee in either case to secure damages.

The motion is overruled.

After the delivery of the foregoing opinion, Green & Green, for appellants, filed a suggestion of error to the action of the court in overruling the motion to correct the judgment and disallow damages, calling the attention of the court, for the first time, to Vicksburg, etc., R. R. Co. v. Lawrence, 78 Miss., 88.

Whitfield, O. J.,

delivered the opinion of the court in response to the suggestion of error.

The case of Vicksburg, etc., R. R. Co. v. Lawrence, 78 Miss., 88 (28 South. Rep., 826), for the first time referred to in the suggestion of error, seems decisive of the contention. Besides, after mature consideration, we think the true construction of the statute — Code 1892, § 1360 — is that it intends damages to be assessed only where there is' an unconditional affirmance. In reality, where there has been a remittitur, it is consented to *701because of error, which but for the remittitur would reverse the judgment. There was error in every.such case; and there has been, practically, to the extent of the remittitur, a reversal.

The suggestion of error is sustained, the motion to correct the judgment is sustained, and the damages are disallowed.