McGee v. Clark
| Citation | 346 So.2d 914 |
| Decision Date | 01 June 1977 |
| Docket Number | No. 49217,49217 |
| Parties | Clyde McGEE and Evelyn McGee v. Raymond CLARK and Mary Clark. |
| Court | Mississippi Supreme Court |
Felts, Russell & Adams, Nathan P. Adams, Jr., Abraham, Gleason & Powell, Claude H. Powell, Greenville, Wells, Gerald, Brand, Watters & Cox, Martha W. Gerald, Jackson, for appellants.
Campbell & DeLong, Roy D. Campbell, Jr., Claude L. Stuart, III, Greenville, for appellees.
LEE, Justice, for the Court:
ON MOTION FOR FIVE PERCENT (5%) DAMAGES PURSUANT TO
MISSISSIPPI CODE ANNOTATED SECTION 11-3-23 (1972)
The decree of the Chancery Court of Washington County ordering specific performance of an option contract involving land valued at three hundred thousand dollars ($300,000) was affirmed by this Court on March 16, 1977 (McGee v. Clark, 343 So.2d 486 (Miss.1977)). Appellees have filed a motion for the awarding of damages as set out in our Rule 19.
Mississippi Code Annotated Section 11-3-23 (1972) provides for damages on certain judgments and covers five (5) categories of cases:
"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:
(1) If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum.
(2) 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.
(3) If the judgment or decree be for the dissolution of an injunction or other restraining process at law or in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained.
(4) If the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or
(5) be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree."
Clearly, if appellees may recover five percent damages, they must come within Category No. 5.
Bancroft v. Martin, 144 Miss. 384, 109 So. 859 (1926), was a suit for specific performance on a contract to convey land. The trial court dismissed the bill and this Court affirmed. The appellee claimed five percent (5%) damages under the statute, contending that he had filed a lis pendens notice in the suit and that it involved a judgment to enforce or establish a lien or charge or claim upon or some interest in property. This Court said:
"The decree of the court below did not enforce or establish...
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