Federal Reserve Bank v. Sparkman , 140 Miss. 336 ( 1925 )

^* Headnote 1. Costs, 15 C.J., Section 659. The appellant, Federal Reserve Bank, filed a bill in the chancery court of Issaquena county, seeking to enforce the lien of a deed of trust executed by the appellees Lee Sparkman and Louis Kunofsky to the First National Bank of Rosedale, as a superior lien to that of a deed of trust executed by the same grantors in favor of the appellee Malone Hyde. The property conveyed by the two deeds of trust consisted of the proceeds of the sale of cotton in the hands of the Staple Cotton Co-operative Association, amounting to one thousand seven hundred eighty-six dollars and fifty-nine cents, and certain other personal property. Upon the final hearing, the chancery court rendered a decree adjudging that the lien of the deed of trust in favor of the appellee Malone Hyde, was a superior lien, that Malone Hyde was entitled to recover from the appellees Lee Sparkman and Louis Kunofsky the sum of two thousand seven hundred fifty-six dollars and sixty-five cents, and directing the Staple Cotton Co-operative Association to pay to the appellee Malone Hyde the proceeds of the sale of cotton in its hands, and appointing a commissioner to sell the other personal property and apply the proceeds from such sale to the payment of the balance owing on the decree in favor of the appellee Malone Hyde. From this decree the appellant prosecuted an appeal to this court with supersedeas, and on May 11, 1925, the decree of the chancery court was affirmed by this court, and a decree entered against the appellant and the surety on its appeal bond for costs only.

Within the time allowed by law, the appellee Malone Hyde filed a motion to correct the decree of this court so as to include therein the statutory damages of five per centum on the amount in controversy, and also interest thereon from the date of the decree in the court below.

The only answer made by the appellant to the claim for the statutory damages appears in the form of a plea averring that the damages should not be assessed because the appellee Malone Hyde, the movant, filed with the clerk of the chancery court an indemnifying bond, and that immediately thereafter the Staple Cotton Co-operative Association paid to appellee Malone Hyde the sum of one thousand, seven hundred eighty-six dollars and fifty-nine cents as ordered by the decree of the court below, and that the commissioner appointed by the court below proceeded to sell the personal property and applied the proceeds as directed, and consequently the appellee Malone Hyde, suffered no delay in the execution of the decree by reason of the appeal.

This plea presents no answer to the motion. Upon the execution of the indemnifying bond, the appellee was permitted to enforce the decree as though it had not been stated by supersedeas, but that fact is not controlling. In the case of Tigner v.McGehee, 60 Miss. 242, it was held that: "The right of the appellee to judgment for damages on affirmance is independent of whether or not the judgment or decree appealed from is stayed bysupersedeas. Damages follow affirmance as a penalty for appealing from a proper judgment or decree."

The suit and decree appealed from involved the establishment of the priority of liens on, and the right to the possession of, certain personal property, and the appellee Malone Hyde is entitled to the statutory damages to be computed upon the value of the property involved.

It seems clear that the appellant is not liable for the interest on the indebtedness to appellee which accrued pending the appeal. There was no decree against the appellant in the court below, and the decree appealed from does not direct the appellants to pay any money, or deliver any property, to the appellee, but the decree was against the appellees Lee Sparkman and Louis Kunofsky and the Staple Cotton Co-operative Association. The only question involved in this appeal was that of the priority of liens claimed by the appellant and the appellee Malone Hyde; the decree of the court below having disallowed the asserted priority of appellant's lien. The case ofCrystal Springs Bank v. Cattle Loan Co., 132 Miss. 454, 96 So. 309, is decisive against the claim of appellee for a decree against the appellant for interest on the amount of the principal indebtedness due by the appellees Sparkman and Kunofsky.

The decree hereinbefore entered will therefore be corrected according to views herein expressed.

Motion sustained in part, and overruled in part.