102 So. 69 | Miss. | 1924
delivered the opinion of .the court.
This cause was decided on a. former day and judgment entered allowing damages at five per cent, on the amount of the money judgment in the court below, which was thirteen thousand five hundred eight dollars and ninety-three cents. The judgment appealed from embraced a number of things besides the money judgment rendered. After the rendition of the judgment for thirteen thousand five hundred eight, dollars and ninety-cents, there was paid on the decree five thousand two hundred fifteen dollars and twelve cents, after which a supersedeas was applied for as to the balance of the money judgment, and supersedeas was allowed as to the money judgment on a bond for twice the amount "of the balance of the judgment, and the cause was appealed, and all of the issues involved in the court below were reviewed in this court. After the rendition of the judgment and the decision of the cause, two motions were filed to correct the judgment; one by the appellant and the other by the appellee. The appellant insists that the allowance of damages at five per cent, on the thirteen thousand five hundred eight dollars and ninety-three cents was error, and that such damages should only have been five per cent, of the balance of the judgment after giving credit for the amount paid subsequent to
The damages allowed on appeals when the appellant is not successful, that is to say, when the judgment is affirmed, involves an interpretation of section 4926, Code of 1906 (section 3202, Hemingway’s Code), which reads as follows:
£ £ In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If- the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property; if the 'judgment or decree be for the dissolution of an injunction or other' restraining process a.t law or in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained; if the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or 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*121 of the property or the interest in it, if the value of the property or interest in it he less than the judgment or decree against it; hut if the value of the property or interest in it he greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree.”
The receipt for the payment made on the judgment after its rendition recited that it was without prejudice to the appellants’ right to have the judgment reversed and restitution made. The section above quoted gives the damages on the sum of money decreed. The damages are not dependent upon superseding the judgment. An appeal may be prosecuted without supersedeas and damages accrue if the judgment be affirmed. So the payment made upon the judgment was not a recognition of the appellees ’ right to recover any sum, and the entire judgment was challenged as being wrongful. The section above quoted is .in the nature of a penalty, or a condition of appeal, and affords also the basis of remuneration of the expense to the successful party, and must be calculated upon the sum adjudged or decreed in the court below where the judgment is for a sum of money. We therefore hold that it was not error to ■calculate the five per cent, upon the thirteen thousand five hundred eight dollars and ninety-three cents, and the motion to correct as to the five per cent, penalty will be overruled.
The subject of partial payments upon judgments and other instruments bearing interest is governed by section 2681, Code of 1906 (section 2079, Hemingway’s Code), which provides:
“When partial payments are made, the interest that has accrued to the time of payment, if any, shall be first paid, and the residue of such partial payment shall be placed to the payment of the principal. ’ ’
Under this section the interest is calculated up to the date of payment, and is paid, and the balance becomes
So ordered..
