Opinion
No. 47175.
October 1, 1973.
Appeal from Harrison County Court, Gaston H. Hewes, J.
Eaton Cottrell, Galloway Lang, Gulfport, for appellant.
Dale Upton, Columbia, for appellee.
ON MOTION FOR 5% DAMAGES ON AFFIRMANCE
The Motion of J.G. Barbee, III, Appellee and Cross-Appellant, to assess 5% Damages against the Housing Authority of the City of Gulfport, Mississippi, Appellant and Cross-Appellee, is sustained to this extent:
5% damages will be calculated on $7,625.00, the difference between the $20,000.00 judgment and $12,375.00 which was paid to Barbee by the Housing Authority on June 15, 1972.
The stipulation, which was attached to the Order for Disbursement, provides in part:
"It is further agreed that interest on the said sum of $12,375.00 shall cease to run, and any damages based upon the verdict of the County Court shall cease to run as to that percentage of the damages represented by this sum to be withdrawn, both ceasing as of the date of withdrawal of the said sum;"
The pertinent portion of Section 1971, Mississippi Code 1942 Annotated (1956), provides:
" 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." (Emphasis added).
Even though the Housing Authority and Barbee both were dissatisfied with the $20,000 judgment, the Housing Authority first took advantage of the appellate process and initiated an appeal. Barbee later cross-appealed. The judgment of the court below was affirmed without change, 279 So.2d 604; this case fits squarely within the terms of the statute. The statute provides: ". . . the Supreme Court shall render judgment against the appellant for damages, . . ." We must comply with the mandate of the law.
The litigant who first initiates an appeal was construed by us in Pearce v. Ford Motor Company, 235 So.2d 281 (Miss. 1970) to be the appellant referred to in Section 1971 against whom damages are to be assessed upon affirmance without change of the lower court's judgment.
The Motion to Assess Damages is, therefore, sustained and 5% damages will be calculated on $7,625.00.
All Justices concur.