State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081 (1959); Newton v. Main, 96 Ariz. 319, 395 P.2d 360 (1964) (en banc). This is the rule in our court also. Columbia Lumber Co. v. Agostino, 13 Alaska 34, 184 F.2d 731, 736 (9th Cir. 1950); Southern Pac. Co. v. Souza, 179 F.2d 691, 694 (9th Cir. 1950). We have carefully reviewed all of the instructions given and remain convinced that the possible prejudicial effect of the erroneous instruction was not eliminated by those which were given before and after.
Appellants contend the amounts due appellees were unliquidated (and indeterminable until judgment) and that interest may be recovered only on liquidated demands, citing Stephens v. Phoenix Bridge Co., 2 Cir., 1905, 139 F. 248; Excelsior Terra Cotta Co. v. Harde, 1905, 181 N.Y. 11, 73 N.E. 494. We agree that appellants correctly state the general rule, Columbia Lumber Co. v. Agostino, 9 Cir., 1950, 184 F.2d 731, but do not agree appellees' claim was unliquidated. All work had been completed prior to September 1, 1956, and appellants well knew the amounts due. They were furnished periodic statements from which the amounts claimed to be due were readily ascertainable, and which the trial court found, to the penny, to be due in fact.
We pretermit discussion of the jurisdictional issue raised by appellee's motion to dismiss for appellant's late filing of the record and brief on appeal. Exercising the broad discretion vested in this Court by Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A., we simply hold that appellant's failure in these respects to show strict compliance with Rule 73(g) and this Circuit's Rule 24, 28 U.S.C.A., are at most non-jurisdictional defects in the prosecution of his appeal, which we consider insufficient to warrant dismissal. See Martin v. Handy-Andy Community Stores of Texas, 5 Cir., 214 F.2d 10, 11; Columbia Lumber Co. v. Agostino, 9 Cir., 184 F.2d 731, 733; cf. Fong v. James W. Glover, Ltd., 9 Cir., 197 F.2d 710, 712. Dr. Schoolfield, a specialist in Bone and Joint Surgery, who had not treated appellant, but examined him for the purpose of testifying, described appellant's injury as follows:
08; plus interest on B/L and draft No. 9 from June 21, 1960, until the date of judgment, at 6%, $5,965.47. Upon further consideration of this matter and review of pertinent or comparable authorities I have concluded that such holding as to interest was in error; that is, that under circumstances such as this case the claims of plaintiff were liquidated and determined upon the dates of conversion, and that such interest should be allowed, the cases of Columbia Lumber Co. v. Agostino, 184 F.2d 731, 13 Alaska 34, and Chirikoff Island Cattle Corp. v. Robinette, Alaska, 372 P.2d 791 not being applicable. See 47 C.J.S. Interest § 19, subd. b, p. 30; Anno. 96 A.L.R. 18, 74; First Nat. Bank v. Felker, 185 F. 678, aff'd (C.A. 8) 196 F. 200; Felder v. Reeth, (C.A. 9) 34 F.2d 744, 97 A.L.R. 244; New York Alaska Gold Dredging Co. v. Walbridge, (C.A.9) 38 F.2d 199; Hansen Rowland v. C. F. Lytle Co., (C.A. 9) 167 F.2d 170; Blankenship v. Rowntree, (C.A.10) 238 F.2d 500; Soby v. Johnson, (C.A.9) 270 F.2d 193; Abrams v. Rushlight, 157 Or. 53, 69 P.2d 1063, 111 A.L.R. 1292.
But such interest may not be allowed on unliquidated claims; and it is further held that interest may not be allowed where liability for the claim is not determined until the date of trial. Columbia Lbr. Co. v. Agostino, 9 Cir., 184 F.2d 731. Chirikoff Island Cattle Corp. v. Robinette, Alaska, 372 P.2d 791. Therefore interest may not be allowed except after judgment.
The allowance of such fees is in the discretion of the Court and, as Judge Dimond has indicated, the allowance of attorney fees to the prevailing party under this statute is customarily made in the courts of Alaska. Columbia Lumber Co., Inc., v. Agostino, 9 Cir., 184 F.2d 731, 736; United States for Use and Benefit of Brady's Floor Covering, Inc., v. Breeden, D.C., 110 F. Supp. 713, 14 Alaska 214. The precise question here is whether under our statute there is anything to indemnify.
The sections of our procedural statutes above quoted are part of an act of Congress approved June 6, 1900, entitled "An Act Making further provision for a civil government for Alaska, and for other purposes." 31 Stat. 321. While the allowance of attorneys' fees to the prevailing party under this law is customarily made in the Courts of Alaska, such allowance is discretionary, Columbia Lumber Company, Inc., v. Agostino, 9 Cir., 184 F.2d 731, 736. The several defendants, General Casualty Company of America in Cause No. A-7413 and the Continental Casualty Company in Cause No. A-7411, object to the allowance of any attorneys' fees whatever in these cases upon the ground that the Miller Act does not envisage or provide for or allow the imposition of attorneys' fees upon the sureties in payment bonds, and defendants cite especially the case of United States to Use of Watsabaugh Co. v. Seaboard Surety Co., 1938, 26 F. Supp. 681, 693, an opinion of the District Court for the District of Montana.
Under these circumstances it was error to allow interest on the loan claim for any time previous to the date of the judgment. On the other hand, Columbia Lumber Co. v. Agostino, 13 Alaska 34, 184 F.2d 731, 736 (9th Cir. 1950), and Valentine v. Quackenbush, 239 F. 832, 835-836, 152 CCA 618 (9th Cir. 1917), do distinguish between liquidated and unliquidated claims under what is now AS 45.45.010. Courts in other jurisdictions and commentators have over the years been moving away from medieval religious notions that all interest was evil toward recognition by awarding prejudgment interest of the economic fact that money awarded for any reason is worth less the later it is received.
Section 25-1-1 A.C.L.A. 1949. See Valentine v. Quackenbush, 4 Alaska Fed. 528, 532-533, 239 F. 832, 835-836 (9th Cir. 1917); Columbia Lumber Co., Inc. v. Agostino, 184 F.2d 731, 736, 13 Alaska 34, 46 (9th Cir. 1950); Dawson, Corbett Shelp v. Lieurance Canfield Const. Co., 68 Wyo. 465, 235 P.2d 457, 464-466 (1951). The last issue raised by the defendant is that the trial court committed error in finding that Kenny had assigned his wage claim to the plaintiffs.