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87 Miss. 698

Howie v. Bonds

Mississippi Supreme Court

Decided November 15, 1905

Mississippi Supreme Court · decided 1905-11-15

From the chancery court of Scott county. Hon.James L. McOaskill, Chancellor. Bonds, the appellee, was complainant in the court below; Howie and others, the appellants, doing business under the firm name of Howie Bros., were defendants there. The chancery court rendered a decree in favor of the complainant for the sum of eight hundred and thirty-four dollars as commissions on the sale of five thousand five hundred and sixty acres of land.

Good law ✅— No negative treatment on recordhow we know

Decided 1905-11-15

How this case has been cited

Cited by 12 later decisions — most recently December 1965

12 state decisions

401905191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Whitfield, C. J.,

¶1delivered the opinion of the court on the motion.

¶2The record discloses a judgment of affirmance, not one of reversal. Where a remittitur is entered as a condition of affirmance, what follows is just as much an affirmance as in a case where there is an unconditional affirmance. The judgment entered being, therefore, one of affirmance, as shown by the face of the record, it was proper to allow the five per cent damages provided by the statute in cases of affirmance. We do not think any just distinction can'be made as to the right to damages on affirmance between actions arising ex delicto and those arising ex contractu. In the two c^ses referred to by the appellant—Delta & Pine Land Co. v. Wallace, 83 Miss., 656 (36 South. Rep., 263), which arose ex contractu, and Carver v. Jackson, 82 Miss., 583 (35 South. Rep., 157), which arose ex delicto, and in both of which a remittitur was entered — the record does not show any effort on the part of appellee in either case to secure damages.

¶3The motion is overruled.

¶4After the delivery of the foregoing opinion, Green & Green, for appellants, filed a suggestion of error to the action of the court in overruling the motion to correct the judgment and disallow damages, calling the attention of the court, for the first time, to Vicksburg, etc., R. R. Co. v. Lawrence, 78 Miss., 88.

Whitfield, O. J.,

¶5delivered the opinion of the court in response to the suggestion of error.

¶6The case of Vicksburg, etc., R. R. Co. v. Lawrence, 78 Miss., 88 (28 South. Rep., 826), for the first time referred to in the suggestion of error, seems decisive of the contention. Besides, after mature consideration, we think the true construction of the statute — Code 1892, § 1360 — is that it intends damages to be assessed only where there is' an unconditional affirmance. In reality, where there has been a remittitur, it is consented to *701because of error, which but for the remittitur would reverse the judgment. There was error in every.such case; and there has been, practically, to the extent of the remittitur, a reversal.

¶7The suggestion of error is sustained, the motion to correct the judgment is sustained, and the damages are disallowed.

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