Philips v. Frank

YARRUT, Judge.

Defendant-Appellee moves to dismiss Plaintiff-Appellant’s appeal claiming that, since the rendition of the judgment against him, he had deposited the principal amount of the judgment in the registry of the district court.

In answer to the motion to dismiss, Plaintiff-Appellant admits the full principal amount of the judgment has been deposited in the registry of the court, exclusive of any interest or costs; hence, the question of interest and costs is still open for decision on appeal.

The record shows that Plaintiff, an attorney, sued Defendant for $2500 attorney’s fees, interest and costs. Defendant admitted owing the $2500, but contended Plaintiff agreed to let him make payment at the rate of $100 per month; that, in pursuance thereof, he tendered Plaintiff $100 per month, which Plaintiff refused. The district judge agreed with Defendant that he had the right to pay the fee at the rate of $100 a month, and ordered him forthwith to pay the accumulated monthly payments of $1600, and thereafter, the balance at the rate of $100 per month until final payment in full. Defendant paid the full amount into the registry of the court and now moves for the dismissal of the appeal.

Since the question of interest and costs is still open on appeal, Defendant’s motion should be dismissed. If this court should hold that Defendant owes interest and costs, the amount deposited was not the full amount due under the judgment.

For the reasons assigned, the motion to dismiss the appeal is denied.

Motion denied.