Davis v. Wilkins , 127 Miss. 490 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

On a former day this cause was affirmed and judgment entered, with five per cent, damages on the judgment appealed from under section 4926, Code of 1906 (section 3202, Hemingway’s Code.) This motion is made to correct the judgment then rendered so as to eliminate that portion of the judgment embracing damages at the rate of five per cent, on the ground that the same is not recoverable against the United States or the director general, acting under the authority of the United States, and the cases of Mo. Pao. R. R. Co. v. Ault, 225 U. S. —, 41 Sup. Ct. 593, 65 L. Ed. —; Davis v. Elzey, 89 So. 666; Neely v. Payne, 89 So. 669.

We have considered the question presented, and have reached the conclusion that these cases have no application to the five per cent, damages under the above Code section, which section does not impose a penalty upon the director general nor upon the United States government .for neglect of the duty, nor as a liability for negligence for the nonperformance of any obligation. The damages imposed by such statute are liquidated damages, and constitute a condition of taking an appeal from the lower court to this court. It is entirely optional with the director general or the government as to whether such ajipeal will be taken. As to appeals, the government stands- in no different condition from an individual, but when it comes into court and submits to the jurisdiction of the court it comes in on the same terms, as to appeal, as any other litigant. Digest U. S. Sup. Ct. Rep. (L. Ed.) p. 5778, and authorities there cited; 29 Am. & Eng. Ency. L. 172 et seq.; 39 Cyc. 788; U. S. v. Smith, 94 U. S. 214, 24 L. Ed. 115.

The motion will therefore be overruled.

Overruled.