Opinion
No. 4092
Opinion Filed February 23, 1915.
APPEAL AND ERROR — Excessive Recovery — Decision. When plaintiff in a judgment offers in this court to remit the amount he is not legally entitled to recover, and this court can separate and determine the items which he was lawfully entitled to recover from the balance of the judgment, the judgment appealed from will be modified and affirmed.
(Syllabus by the Court.)
Error from District Court, Muskogee County; R. P. De Graffenried, Judge.
Action by Elmer Coon against Moses Ayers. Judgment for plaintiff, and defendant brings error. Modified and affirmed.
S. M. Rutherford and James W. Cosgrove, for plaintiff in error.
Bailey Wyand, for defendant in error.
On January 26, 1915, an opinion was filed herein, reversing the case for the reasons stated in said opinion. In the opinion it was held that the item of $100 for attorney's fees, and $25 for loss of time and money in defending suit, were proper elements of recovery, holding that the item of $2,500 for loss of building, and $175 for money contracted and paid for work in its removal, were not proper elements of recovery. Upon handing down this opinion on February 6, 1915, defendant in error files his petition for rehearing and offers to remit all claims for damages, other than the item of $100 for attorney's fees and $25 for expenses and loss of time, and prays that upon rehearing the judgment appealed from be modified and affirmed.
The verdict of the jury fixed the amount of the attorney's fees at $100, and there is evidence reasonably tending to support this finding; and it is alleged in the petition for rehearing, and not controverted, that the evidence is uncontradicted as to the item of $25 for expenses and loss of time. Upon the offer of defendant in error to remit amounts recovered in excess of this, we are of the opinion that the order reversing this cause should be set aside and the judgment appealed from be modified and affirmed. Moore v. Calvert et al., 8 Okla. 358, 58 P. 627; Board of County Commissioners v. Smith, 18 Okla. 132, 89 P. 1121; Lee v. Haizlip, 22 Okla. 393, 99 P. 806, 1135; F. M. Ins. Co. v. Cuff, 29 Okla. 106, 116 P. 435, 35 L. R. A. (N. S.) 892; M., K. T. Ry. Co. v. Johnson, 30 Okla. 754, 120 P. 1100; St. L. S. F. Ry. Co. v. Goode, 142 P. 1185.
It is therefore ordered that the judgment of the trial court be modified and affirmed as to the item of $100 for attorney's fees and $25 for expenses and loss of time.
All the Justices concur.