Boyd v. Applewhite

• Decision Date: 14 June 1920
• Docket Number: 20630
• Citation: 85 So. 87,123 Miss. 185
• Court: Mississippi Supreme Court
• Parties: BOYD ET AL. v. APPLEWHITE ET AL

85 So. 87

123 Miss. 185

BOYD ET AL. v. APPLEWHITE ET AL

No. 20630

Supreme Court of Mississippi

June 14, 1920

March 1920

APPEAL from chancery court of Attala county, HON. A. Y. WOODWARD Chancellor.

On motion to correct judgment. Motion overruled in part and sustained in part.

For former opinion, see 84 So. 16.

The motion reads as follows:

Comes the appellants, J. Niles Boyd, A. M. Stoner, J. A. Niles, J A. Russell, Eugene Cole, V. A. Coulson, J. S. Niles, sureties in his appeal bond, and J. N. Alexander, J. M. Knotts, Mrs Clara Lowenberg, administratrix of the estate of Gus Lowenberg, deceased, and severally moves the court to correct the decree entered in this court during this term on the 22d day of March, 1920, and for grounds assign as follows:

(1) For a credit by way of satisfaction protanto of the decree rendered in this court, thirteen thousand seven hundred sixty-five dollars and eighty-two cents, as of February 6, 1919, on the principal, for these reasons: The decree of the chancery court was rendered November 19, 1918 (R. vol. 4, 156). Appellants, J. N. Alexander (V. 4, p. 167) N. M. Falk (V. 4, p. 166), J. M. Knotts (V. 4, p. 168), and Mrs. Clara Lowenberg, administratrix (V.4,p. 159), appealed to this court without supersedeas, and execution was thereupon issued (see R. No. 21311, styled Mrs. Clara Lowenberg, Adm'x, v. Carrie S. Applewhite et al., p. 8) in solido, in favor of all the complaints jointly, for the sum of thirty-seven thousand one hundred seventy-one dollars and fifty-five cents, and costs, in solido, against Mrs. Lowenberg, adm'x, Alexander, Falk and Knotts and Boyd (but suspended as to Boyd, because he had given supersedeas bond, Id. p. 8), and said execution was levied on the real and personal property of Alexander (Id. pp. 13, 15), and the real property of Falk (Id. p. 15), and of Lowenberg (Id. p. 13), and at the sale under said execution said property of Alexander brought (Id. p. 16) six thousand five-hundred dollars, that of Lowenberg, seven thousand five-hundred dollars, that of Falk three hundred fifty dollars, aggregating fourteen thousand three hundred and fifty dollars, of which five hundred eighty-four dollars and eighteen cents, was paid by the sheriff on the costs in the chancery court (Id. p. 16), and the balance of thirteen thousand seven hundred sixty-five dollars and eighty-two cents, was paid over on February 6, 1919, (Id. p. 17), by the sheriff to appellees' solicitors, in solido, on said decree.

(2) That the five per cent. damages shall be disallowed, in that:

(A) The decree of the chancery court appealed from was not affirmed, but was reversed, in that all of the complainants, jointly, by the final decree of said chancery court, recover all of their costs (Boyd v. Applewhite, V. 4, p. 155), and sued out thereon a joint execution thereof in solido (R. Lowenberg v. Applewhite, pp. 8, 10, 11, 12, 16), and satisfaction for said costs, accrued to that time in the chancery court, had.

(B) Five per cent. damages on appeals are allowable under section 3202, Hemingway's Code, providing, "In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect" against appellants, under bond without supersedeas under section 25, Hemingway's Code, "conditioned for the payment of all costs of appeal in case the judgment of decree be affirmed as to such appellant," and against appellant Boyd under bond, with supersedeas, under section 26, Hemingway's Code, "conditioned that the appellant will satisfy the judgment or decree complained of, and also such final judgment as may be made in the cause, and all costs, if the same be affirmed. " That the said decree appealed from was not affirmed, but reversed:

(a) As to costs.

(b) As to the recovery in favor of Mrs. Burgess, administratrix, and W. T. Witherington, trustee.

(c) The decree rendered in this court was not the decree of the chancery court appealed from, but this court, instead of reversing and remanding for proper decree in the chancery court, proceeded to exercise such jurisdiction as the chancery court should have exercised, and rendered the decree which the chancery court should have rendered, and thereby a new and different decree was rendered in the supreme court, and the decree of the chancery court was not affirmed, and appellants did not fail to prosecute their appeal to effect.

(3) If all the five per cent. damages shall not be disallowed, then at least the damages should be computed on the amount of the decree in this court after applying the credit of thirteen thousand seven hundred sixty-five dollars and eighty-two cents, realized, pending the appeal by levy of execution, as shown supra, paragraph 1 of this motion.

(4) The decree in this court should be modified as to costs:

(a) So as to tax appellees with the costs of the appeal instead of with seven-eighths thereof, as the decree of the court below for costs in the chancery court was not affirmed, but was reversed.

(5) The decree entered here should be modified as to the costs in the chancery court, in that, instead of taxing all of said costs in the chancery court against appellants, there should be decreed to be taxed against appellants by the chancery court on the filing of the mandate herein in said court seven-eighths of the costs taxable...