Opinion
No. 25252.
June 15, 1926.
1. APPEAL AND ERROR.
Under supreme court rule No. 6, any error in awarding interest on judgment recovered against city and assessing five per cent damages under Code 1906, section 4926 (Hemingway's Code, section 3202), was waived when not raised by assignment of error on submission to supreme court.
2. APPEAL AND ERROR.
Procedure for obtaining reconsideration of award of interest on judgment against city, if properly raised by assignment of error, is by suggestion of error, which must be filed within time allowed under supreme court rule 14.
D.E. and C.W. Sullivan, for appellant, on motion to correct judgment.
The motion to correct the judgment is not a suggestion of error and has no kinship to a suggestion of error. The motion is made under section 736, Hemingway's Code, to correct or amend the judgment of the supreme court for "a misrecital of a sum of money."
The motion to amend the judgment was filed during the term of the court at which the judgment was rendered, and, therefore, the court has jurisdiction to hear and determine the motion and correct the "misrecital of any sum of money." Rule 14 of the supreme court applies to correction of mistakes, miscalculations and misrecitals of any sum of money, etc.
We submit that the motion to amend the judgment should be sustained.
Stevens Heidelberg, for appellee, on motion to correct judgment.
The matters complained of by appellant on motion to correct the judgment herein could only be raised by suggestion of error. See Y. M.V.R.R. Co. v. James, 80 So. 2, 118 Miss. 724; Couret et al. v. Conner et al., 79 So. 801.
The court will not now treat this motion to correct the judgment as a suggestion of error and pass thereon, for the reason that it comes too late. Rule 14 requires a suggestion of error to be filed within fifteen days; and even if a motion for further time is made within the fifteen days, it can be extended only to thirty days; and more than thirty days has elapsed since the rendition of judgment before the filing of this motion.
This is an appeal by the city of Hattiesburg from a judgment against it in favor of the New Orleans Northeastern Railroad Company for taxes wrongfully collected from the railroad company by the city, and the judgment appealed from was affirmed at the last term of this court. ___ Miss. ___, 106 So. 749. The judgment of the court below awarded the appellee interest on the amount sued for and recovered at the rate of "six per cent per annum from the 30th day of January, A.D. 1925, until paid." This award of interest was brought forward by the clerk of this court when the judgment of affirmance was entered by him on his minutes, and the amount thereof was included in the amount on which the five per cent damages provided by section 4926, Code of 1906 (Hemingway's Code, section 3202), were calculated. No complaint was made by the appellant in its assignment of error of this interest awarded in the court below. After the affirmance of the judgment and after the time allowed for the filing of a suggestion of error under rule 14 of this court ( 104 Miss. 906) had expired, the appellant filed a motion to correct the judgment of affirmance by striking therefrom the allowance of interest on the judgment rendered by the court below and the five per cent damages allowed on this interest.
The error sought here to be corrected, assuming for the sake of argument that error it is, was committed by the court below, and was one of the questions which the appellant, if it desired a review by this court thereof, should have raised by its assignment of error when the case was submitted to this court for affirmance or reversal. Consequently, it is not now open to consideration for two reasons: (1) It was waived by not being included in the assignment of error (rule No. 6 of this court, 104 Miss. 906); and (2) had it been included in the appellant's assignment of error the procedure for obtaining a reconsideration thereof is by a suggestion of error filed within the time allowed therefor by rule No. 14. Should we treat this motion as a suggestion of error, and such in fact it is ( Railroad Co. v. James, 118 Miss. 724, 80 So. 2), the limitation of rule No. 14 would still apply.
The motion will be overruled.