Opinion
No. 35024.
November 23, 1942.
COSTS.
The statute authorizing Supreme Court to render judgment against appellant for damages, at rate of 5 percent and costs, in case judgment be affirmed or appellant fails to prosecute his appeal, would not authorize a judgment for damages against a cross-appellant who merely followed the case without making any motions therein but did not bring it to the Supreme Court after decree was affirmed on both direct appeal and cross-appeal (Code 1930, sec. 3387).
APPEAL from the chancery court of Webster county, HON. JAS. A. FINLEY, Chancellor.
S.I. Osborn, of Greenwood, for appellant.
Undoubtedly under the statute and decisions of this court, the court will render the 5 percent penalty against the party who fails in its appeal, whether it be appellant or appellee. I think there is no question that we, appellants, should be assessed with the costs of the appeal. We do say, however, and earnestly insist, that the appellee's appeal from the judgment against it (the bank) for $5,000 renders it liable by force and in virtue of the statute to a 5 percent penalty — that is to say, $250 — and this court should correct the judgment even if the suggestion of error herewith filed is overruled. In support of this statement, we call attention to the obvious effect of the cross-appeal by appellee bank. Appellants could not abandon the cause of its appeal and during the pendency of the appeal dismiss its appeal. For example, it is well settled in this jurisprudence that a complainant cannot dismiss his complaint without prejudice after a cross-complaint has been filed. The statute on the 5 percent damages works both ways. In this case, should the suggestion of error be overruled, appellants, in the vernacular of the streets, are "stuck" for 5 percent damages and costs; but appellee bank was not satisfied any more than the appellants with the decision of the lower court, and so it cross-appealed without bond; but it has been definitely decided by this court in at least three cases that the party who is dissatisfied with the decision of the lower court is liable to his opponent for 5 percent of the amount involved, regardless of whether the appellant was the complainant or the defendant in the court below. If the appellee bank was satisfied with the decision of the lower court, then it should not have cross-appealed. It is true, as clearly stated by this court, that a cross-complainant on appeal is not required to file an appeal bond, but that, we submit, does not relieve him from liability for the 5 percent damages, should he decide to cross-appeal. His cross-appeal, bond or no bond, was effective to prevent the appellants from collecting the amount of money and costs adjudged to them against appellee bank in the court below. As a matter of fact, as suggested by Judge Griffith in his Griffith's "Chancery Practice" in the latter part of Section 689, and as further explained by our Chief Justice Smith in Crawley v. Ivy, 149 Miss. 758, 764, 116 So. 90, the idea of not requiring the appellee to make a bond for a cross-appeal is not in accord with the verbage of the statute on the subject, but a matter of practice, which practice we submit was under the decisions cited by the Chief Justice and Justice Griffith, apparently adopted by this court as a matter of convenience, a fiction of law and not the law itself. We would not contend that the appellee bank should be assessed with the same damages as the appellants were assessed, if it, the bank, had not made a cross-appeal. Having made the cross-appeal seeking relief from the judgment for $5,000 against it, that being the amount involved, it cannot, certainly, be relieved of its liability for $250 — the 5 percent penalty. One off-sets the other.
McKeigney McKeigney, of Eupora, for appellee.
We respectfully submit that it would not be fair to assess cross-appellants with the damages asked, if not unlawful. Nor do we believe that they are entitled to a judgment for damages. Their own direct appeal delayed the enforcement of the judgment.
We are unaware of any decision in this state on the proposition for which counsel contend.
We respectfully submit that the motion is not well taken.
Appellants, as complainants, brought their suit against the defendant in the chancery court, seeking to recover a large sum of money. Upon the hearing the court rendered a decree for $5,000 in favor of the complainants, which was considerably less than that for which they sued. The complainants were dissatisfied with the decree and appealed to this court, the record having been filed here on February 26, 1942.
On March 2, 1942, the defendant took a cross-appeal, contending that no decree for any sum should have been rendered against it. After due consideration we affirmed the decree both on the direct and on the cross appeal, 9 So.2d 640, and appellants' suggestion of error has been overruled.
Appellants have now presented a motion requesting the court to correct the decree rendered by us so as to impose upon cross-appellant the damages of five percent on the $5,000 decree, and appellants say that they are entitled to have this done under Section 3387, Code 1930. This section, so far as pertinent, reads as follows: "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 percentum and costs," etc.
The only authority which the section confers, as regards the five per cent damages, is that such damages are to be adjudged against an unsuccessful appellant — the party who by his appeal brings the case to this court. No reference is had, either in the letter of the statute or in the purpose thereof, to a cross-appellant, who follows the case but does not bring it here. It may be, as to which we express no opinion, that if the appellant were to request that his appeal be dismissed, and in response the cross-appellant should demand that his cross-appeal be retained, the five percent statute would thereupon apply to the cross-appellant, for the reason that although the cross-appellant did not bring the case to this court, he would be the party through whom it was kept here; but there is no such a situation under the present record.
Motion overruled.