McBride v. Burgin

McG-owen, J.,

delivered the opinion of the court.

The motion in this case is that the case he remanded to the lower court in order that a writ of inquiry he issued by that court to ascertain the value of the real estate, the possession of which was adjudged to the appellee, Bur-gin, in the lower court, and which was affirmed here, so that when said value is ascertained the appellee may have the five per cent damages allowed him upon the appeal in this case under sections 4926 and 4927 of the Mississippi 'Code of 1906 (Hemingway’s Code, sections 3202 and 3203).

It appears that this record does not disclose the value of the lands awarded to appellee, Burgin, in an ejectment action at a former day of this term of this court, and it being clear that he is entitled to five per cent damages on the value of the real estate, the motion to correct the judgment is sustained so that we shall remand the case to the lower court in order that said court by writ of in quiry may ascertain the value of the real estate involved in this controversy, and that the judgment of this court is that the appellee, Burgin,. shall have and recover of McBride and others, and the sureties on their bond, the amount of five per cent damages on the value of the property thus ascertained by the writ of inquiry in the lower court.

Motion sustained.