Mississippi State Highway Commission v. Jacobs
| Decision Date | 09 March 1964 |
| Docket Number | No. 42880,42880 |
| Citation | 161 So.2d 526,248 Miss. 476 |
| Parties | MISS. STATE HIGHWAY COMMISSION v. John JACOBS. |
| Court | Mississippi Supreme Court |
Pack & Ratcliff, Laurel, for appellant.
F. B. Collins, Paul G. Swartzfager, Laurel, for appellee.
This is a motion by the appellee John Jacobs, in the above styled cause, to retax the costs incurred by reason of the appeal in this case. The appellee cites State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468.
In the Mason case, supra, the Court held that, on affirmance by this Court of a judgment in an eminent domain proceeding, whether it arose from the taking or the damaging of property, the appellee landowner is entitled to recover costs, interest at the rate of six percent per annum from the date of the original entry in the eminent domain court, and damages in the amount of five percent on the amount of the judgment.
In Miss. State Highway Commission v. Herring, 241 Miss. 729, 133 So.2d 279, 895, the Court held that, where, in an eminent domain proceeding, the judgment is affirmed, conditioned upon the entry of a remittitur, thus making the judgment of affirmance for a lessor amount than that appealed from, the landowner is entitled to recover costs and interest at six percent per annum from the date of the original eminent domain judgment, but damage thereon is not allowable. See also Miss. State Highway Commission v. Slade, 241 Miss. 721, 133 So.2d 282, 896.
On the present appeal, no final judgment has been entered. The cause was reversed and remanded for a new trial solely because the appellee induced the trial court to commit the fatal error by reason of introducing evidence, properly objected to, in respect to alleged damages not demanded in the declaration. The error was his own making, and the motion to retax must be overruled.
Motion to retax costs overruled.
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