Opinion
No. 27875.
June 10, 1929.
H.M. McIntosh, of Seminary, for appellee.
M.S. Conner, D.A. McIntosh, Tarver McIntosh, all of Seminary, for appellant.
On a former day of this term, this cause was affirmed without a written opinion, and the appellant has filed a suggestion of error in which, among other things, it is contended that the affirmance of this cause was erroneous for the reason that by error or miscalculation the decree of the court below awarded a recovery against the appellant, in excess of the amount authorized by the proof and the findings of the chancellor thereon as the same appeared in the decree. The decree contains the following recital:
"It is therefore ordered that J.H. Polk Sons, a partnership composed of J.H. Polk, R.E. Polk, do have and recover of and from the defendants J.M. Hickman, J.P. Rutland, and J.D. Rutland the sum of four hundred thirty-five dollars and twenty-eight cents, the same being the amount sued for by complainant, which is three hundred eighty-eight dollars and sixty-six cents, with interest at six per cent for two years, less twenty-five dollars, the amount found to be due by J.M. Hickman at the time the other defendant herein became surety for him."
In response to the suggestion of error counsel for appellees contend that this recital in the decree is, in fact, an award of a recovery for four hundred thirty-five dollars and twenty-eight cents less twenty-five dollars, or four hundred ten dollars and twenty-eight cents. We do not think this recital in the decree can be so construed; but, if so, it is still erroneous to the extent of three dollars, for the reason that the sum of four hundred ten dollars and twenty-eight cents can only be arrived at by deducting the twenty-five dollars from the sum of the amount sued for and interest accrued thereon for two years, while, under the findings of the chancellor, this twenty-five dollars reduction should have been made before the calculation of the interest to be recovered; and, if this had been done, the correct amount to be recovered under this provision of the decree would have been four hundred seven dollars and twenty-eight cents.
The suggestion of error will, therefore, be sustained upon this point, and the decree heretofore entered will be set aside, and the decree of the court below will be reversed in so far as a recovery against appellant, J.P. Rutland, for four hundred thirty-five dollars and twenty-eight cents is allowed, and a decree will be entered here against this appellant for the sum of four hundred seven dollars and twenty-eight cents. In all other respects the suggestion of error will be overruled and the decree of the court below will stand affirmed.
Suggestion of error sustained in part. Overruled in part.