Summary
applying former Mississippi penalty statute to unsuccessful plaintiff-appellant
Summary of this case from Bankers Life Casualty Co. v. CrenshawOpinion
No. 28897.
June 15, 1931.
1. COSTS.
Statute imposes damages on unsuccessful appellant on appeal from judgment or decree for sum of money without reference to whether judgment or decree was for or against appellant (Code 1930, section 3387).
2. STATUTES.
Where statute is unambiguous, its scope cannot rightfully be limited unless not to do so would do violence to intent and purpose of legislature.
3. COSTS.
Appellant appealing because dissatisfied with amount of judgment held liable for five per cent damages, where judgment was affirmed (Code 1930, section 3387).
4. APPEAL AND ERROR.
Surety on appeal bond not including supersedeas held not liable for five per cent damages, where judgment was affirmed (Code 1930, sections 3387, 3390).
APPEAL from circuit court of Hinds county, First district; HON. R.B. RICKETTS, Special Judge.
Brief of appellee on motion, Chas. S. Campbell, of Jackson.
The matter of five per cent damages in favor of appellee and against appellant and its bondsmen is covered by section 3387 of the Mississippi Code of 1930.
This court held in the case of Huckaby v. Jenkins, 122 So. 487, that the question is properly raised by motion to correct.
Damages follow affirmance as a penalty for appealing from a proper judgment or decree.
Tigner v. McGehee, 60 Miss. 242; Federal Reserve Bank of St. Louis v. Sparkman et al., 140 Miss. 336, 105 So. 637.
The damages imposed by such statute are liquidated damages, and constitute a condition of taking an appeal from the lower court to this court.
Davis, Director General of Railroads, v. Wilkins, 127 Miss. 460, 90 So. 180; Crystal Springs Bank v. New Orleans Cattle Loan Company, 132 Miss. 454, 96 So. 309.
This court speaking through Chief Justice SMITH, on suggestion of error, in the case of Garner v. Townes, 134 Miss. 761, 100 So. 20, the same being a controversy over the right to an insurance policy, held that five per cent damages should be allowed to the successful appellee, to be computed on the value of the policy.
The five per cent damages is in the nature of a penalty or a condition of appeal and affords basis of remuneration of the expense to the successful party.
Meek et al. v. Alexander et al., 137 Miss. 117, 102 So. 69; Canal Bank Trust Company v. Brewer et al., 147 Miss. 885, 114 So. 127.
The statute imposes five per cent damages against any unsuccessful appellant.
Sec. 3387, Code of 1930.
The right to render such judgment against the sureties on a cost bond is proper because the five per cent damages are a part of the expenses resulting from the taking of the appeal just as much as any other costs. It was so held by this court in the case of National Box Company v. New Amsterdam Casualty Company, 105 So. 539.
Green Green, of Jackson, for appellant.
The motion recites that it is predicated upon section 3387 of the Code of 1930. Section 3387 has no application to a judgment on an appeal bond for costs. Judgment for costs on appeal bonds is covered by section 3390, Code of 1930.
Surety on appellant's cost bond held not liable for penalty of five per cent on money judgment affirmed such penalty not being a part of the costs.
Humphreys v. Thompson, 130 So. 152.
There is no foundation in section 3387, or 3388, or 3389, Code 1930, for the contention that the penalty of five per cent damages applies where the judgment affirmed was not against the appellant, but here the judgment was against appellee, as here. The judgment of the court below was against Stokes V. Robertson with no appeal and yet he contends that after having gotten the benefit of the time consumed by this appeal from February 26, 1930, to May 4, 1931, for the payment of the money, and enjoyment of the houses built with the materialmen's material, and for which he owed the contractor, Broadway, that he is entitled, in addition to the penalty of five per cent damages on the amount of the judgment against him rendered, he being the appellee.
The language of section 3387 while it names appellant, proceeds upon the hypothesis that the appellant is the party against whom the judgment was rendered, and this is evidenced further by the succeeding clauses of section 3387, which shows that it is in judgments against the appellant for property which are affirmed, and not judgments for property in favor of appellee.
Clark v. The German Security Bank, 61 Miss. 614; Vicksburg Bank v. Adams, 74 Miss. 179-196; Canal Bank Trust Co. v. Brewer, 114 So. 127, 147 Miss. 885; Pan-American Petroleum Corp. v. Miller, 122 So. 393, 154 Miss. 565.
In the suggestion of error as filed we, with deference, suggest to the court that its opinion and judgment over turns the uniform construction of section 3387, Mississippi Code of 1930, as indicated by the judgments uniformly rendered by this honorable court en banc, and by its divisions whereby the minutes of this court, read and signed, show that in no case since the adoption of the Mississippi Code of 1906 has five per cent damages been adjudged where there was not a money or property judgment against the appellant in the lower court, upon an affirmance by the supreme court.
In every case cited and discussed by learned counsel for the appellee in their brief on the motion, and in every case referred to by the court in its opinion on the question of five per cent damages there was a money or a property judgment rendered against the appellant in the court below. The cases indicate, by implication, at least, that the legislative intent, as construed by judicial interpretation opposes the view of counsel for appellee, and the view adopted by the court in its opinion on the motion.
Argued orally by Marcellus Green, for appellant, and by Chas. S. Campbell, for appellee.
The appellant recovered a judgment in the court below against the appellee for a sum of money, but, being dissatisfied with the amount thereof, brought the case to this court.
On a former day of this term, the decree of the court below was affirmed, and a motion is now made by the appellee to correct the judgment of affirmance by adding thereto a judgment against the appellant for five per cent of the amount of the judgment appealed from. The motion is based on section 3387, Code of 1930, which provides that: "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," etc.
The appellant's contention is that the statute "proceeds upon the hypothesis that the appellant is the party against whom the judgment was rendered," and imposes damages on an unsuccessful appellant in an appeal from a money judgment or decree only when the judgment or decree is for a sum of money against him. This legislative intent, it says, not only appears from the statute, but is demonstrated by the history thereof. As it appeared in the Code of 1880 as section 1422, its language was: "If the judgment or decree affirmed be for a sum of money adjudged or decreed against the appellant, the damages shall be upon such sum." It was brought forward into the Code of 1892 as section 4360 thereof, without change in this connection, but when it appeared in the Code of 1906 as section 4926, and in the Code of 1930 as section 3387, the words "adjudged or decreed against the appellant" were omitted therefrom. This omission, according to the appellant, was for the reason that the words omitted were surplusage, and added nothing to the plain intent of the legislature as expressed in the statute without them.
We are unable to adopt that view of the matter. The statute, without the insertion of the words "adjudged or decreed against the appellant" between the words "for a sum of money" and the words "the damages shall be" seems clearly to impose damages on an unsuccessful appellant in an appeal from a judgment or decree for a sum of money without reference to whether the judgment or decree was for or against the appellant. The omission of the quoted language seems clearly to indicate that the legislature intended thereby to broaden the scope of the statute.
The statute is plain and unambiguous, and therefore its scope cannot rightfully be limited unless not so to do would do violence to the intent and purpose of the legislature. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B, 392. In Tigner v. McGehee, 60 Miss. 242, it was said that the statute was intended to penalize an appellant "for appealing from a proper judgment or decree," and in Meek v. Alexander, 137 Miss. 117, 102 So. 69, 70, that the statute "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." Any or all of these purposes apply with equal force to an appeal from a judgment in favor of an appellant, as from a judgment against him.
The case of Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127, 128, relied on by the appellant, in which the court held that the statute did not apply to an interlocutory appeal to settle the principles of the case, has no application here, for such an appeal, as the court there said, is "for the benefit of all parties to the cause."
The motion prays for a judgment for five per cent damages against both the appellant and the surety on his appeal bond. This bond does not include a supersedeas and is for costs only, from which it follows that, while the appellant is liable for five per cent damages, Tigner v. MeGehee, supra, the surety on his appeal bond is not. Section 3390, Code 1930; Humphreys v. Thompson (Miss.), 130 So. 152.
The motion will be sustained to the extent that the judgment hereinbefore rendered will be corrected so as to award a judgment against the appellant, but not against its surety, for five per cent on the amount of the judgment appealed from.
So ordered.