Coleman v. People's Bank of Lumberton ( 1927 )

HoldeN, P. J.,

delivered the opinion of the court.

We have considered the suggestion of error filed by the appellants, in which it is urged that the five per cent, damages allowed on the dissolution of the injunc tion was error because the damag'es were allowed on a basis of five per cent, of the total amount of the indebtedness, whereas the property involved was less than the amount of the indebtedness, and that, since the court-failed to find the value of the property, the damages assessed were erroneous.

We agree with counsel for the appellants that, under section 383, Hemingway’s Code, the lower court should have assessed damages upon the value of the property, which was less than the debt, instead of basing the assessment upon the amount of the debt. But, since the filing of the suggestion of error, counsel for the appellee has entered a remittitur here, for all of the damages assessed on account of the dissolution of the injunction, and this, of course, settles the case in that regard.

Therefore the clerk will enter the remittitur, and deduct the decreed amount of damages from the amount of the. decree, and shall assess equally the costs of this court against each party. The decree is otherwise affirmed, and the suggestion of error is overruled.

Suggestion of error overruled.