Opinion
No. 39902.
April 16, 1956. ON MOTION TO CORRECT JUDGMENT
1. Appeal — motion to correct judgment — sustained — interest allowed.
Where trial court's award included interest on sum of $5,400 at rate of six per centum per annum from April 23, 1954, and Supreme Court on appeal affirmed judgment as to $5,400 but reversed as to damages awarded in excess of such amount, Supreme Court in entering judgment for $5,400 should have included interest at six per centum from April 23, 1954.
2. Appeal — same — proper — judgments — interest.
Where purpose of motion was not to change decision of Court but rather to have judgment made conformable to opinion by including interest on award, motion for correction of judgment was appropriate.
3. Appeal — same — timely filed.
Where motion for the correction of judgment was filed within time allowed for filing suggestion of error, it was, whether treated as motion to correct judgment or as suggestion of error, timely filed.
Headnotes as approved by Holmes, J.
APPEAL from the Chancery Court of Simpson County; NEVILLE PATTERSON, Chancellor.
Satterfield, Shell, Williams Buford, Jackson; James B. Sykes, Mendenhall, for movant.
I. Cited and discussed the following authorities: 24 Am. Jur., Sec. 238 p. 68; Annos. 96 A.L.R. 240, 111 A.L.R. 1307; 27 C.J., Sec. 238 p. 88; 37 C.J.S., Sec. 141(g) p. 469.
Jones Stratton, Brookhaven, for movee.
I. Cited and discussed the following authorities: Bates v. Dresser, 251 U.S. 524, 64 L.Ed. 388, 40 S.Ct. 247; Compton v. Hammond Lbr. Co., 154 Oregon 650, 61 P.2d 1257; 47 C.J.S., Sec. 59 (Note 96) p. 69.
On March 19, 1956, we handed down our opinion in this cause affirming the decree of the court below insofar as it awarded damages to the appellees in the sum of $5400, representing the loss of the sale of a lease by the appellees to Earl R. Wilson, which the evidence shows occurred on April 23, 1954, and reversing said decree insofar as it awarded damages in excess of said sum of $5400. Judgment was entered here in favor of the appellees for said sum of $5400. No reference was made in the opinion to interest on said sum of $5400, and interest was not provided in the judgment entered. The decree appealed from had awarded interest on said sum at the rate of six percent per annum from April 23, 1954.
Within the fifteen days allowed for the filing of a suggestion of error, the appellees have now filed what they denominate as a "motion for the correction of judgment," seeking to have the judgment heretofore entered corrected so as to provide for interest on said sum of $5400 at the rate of six percent per annum from April 23, 1954.
(Hn 1) We may treat the motion as a suggestion of error, but whether treated as such or as a motion for the correction of the judgment, we are of the opinion that it should be sustained. It was the opinion of the Court that the award made by the chancellor for the loss of the lease to Wilson should be affirmed. This award by the chancellor included damages in the sum of $5400 with interest thereon at the rate of six percent per annum from April 23, 1954. The motion will therefore be sustained and the judgment heretofore entered corrected so as to include interest on said sum of $5400 at the rate of six percent per annum from April 23, 1954.
(Hn 2) It is contended by the appellant that the question here raised should have been raised by a suggestion of error and that none was filed within the time allowed. We think that the error here sought to be corrected is one properly reached by a motion to correct judgment, since the motion does not seek to change the decision of the Court but rather to have the judgment entered conform to the opinion of the Court. Shipman v. Lovelace, et al, 215 Miss. 141, 60 So.2d 559. (Hn 3) Without regard, however, to the merit of this contention of the appellant, the motion was filed within the time allowed for the filing of a suggestion of error, and whether it be treated as a motion to correct judgment or as a suggestion of error, it was timely filed.
Motion to correct judgment sustained.
McGehee, C.J. and Hall, Lee and Kyle, JJ., concur.