City of Hattiesburg v. New Orleans & N. E. R.

108 So. 799, 108 So. 797, 143 Miss. 587, 1926 Miss. LEXIS 295

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal by the city of Hattiesburg from a judgment against it in favor of the New Orleans & Northeastern Railroad Company for taxes wrongfully collected from the railroad company by the city, and the judgment appealed from was affirmed at the last term of this court. —■ Miss. —, 106- So. 749. The judgment of the court below awarded the appellee interest on the amount sued for and recovered at the rate of “six per. cent per annum from the 30th day of January, A. D. 1925, until paid.” This award of interest was brought forward by the clerk of this court when the judgment of affirmance was entered by him on his minutes, and the amount thereof was included in the amount on which the five per cent damages provided by section 4926, Code of 1906 (Hemingway’s Code, section 3202), were 'calculated. No complaint was made by the appellant in its assignment of error of this interest awarded in the court below. After the affirmance of the judgment and after the time allowed for the filing of a suggestion of error under rule 14 of this court (104 Miss. 906) had expired, the appellant filed a motion to correct the judgment of affirmance by striking therefrom the allowance of interest on the judgment rendered by the court below and the five per cent damages allowed on this interest.

The error sought here to be corrected, assuming for the sake of argument that error it is, was committed by the court below, and was one of the questions which the appellant, if it desired a review by this court thereof, should have raised by its assignment of error when the case was submitted to this court for affirmance or reversal. Consequently, it is not now open to consideration for two-reasons: (1)’ It was waived by not being included in the assignment of error (rule No. 6 of this court, 104 Miss. 906); and (2) had it been included in the appellant’s assignment of error the procedure for obtaining a reconsideration thereof is by a suggestion of error filed within the time allowed therefor by rule No. 14. Should we treat this motion as a suggestion of error, aad such in fact it is (Railroad Co. v. James, 118 Miss. 724, 80 So. 2), the limitation of rule No. 14 would still apply.

The motion will be overruled.