Ellis v. Merchants & Farmers Bank

Mississippi Supreme Court

Ellis v. Merchants & Farmers Bank

10 So. 2d 541, 193 Miss. 557, 1942 Miss. LEXIS 151

CourtMississippi Supreme Court

DecidedNovember 23, 1942

DocketNo. 35024.

StatusPublished

This text of 10 So. 2d 541 (Ellis v. Merchants & Farmers Bank) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellis v. Merchants & Farmers Bank, 10 So. 2d 541, 193 Miss. 557, 1942 Miss. LEXIS 151 (Mich. 1942).

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Opinion

Griffith, J.,

delivered the opinion of the court.

Appellants, as complainants, brought their suit against the defendant in the chancery court, seeking to recover a large sum of money. Upon the hearing the court rendered a decree for $5,000‘ in favor of - the complainants, which was considerably less than that for which they sued. The complainants were dissatisfied with the decree and appealed to this- court, the record having been filed here on February 26, 1942.

On March 2, 1942, the defendant took a cross-appeal, contending that no decree for any sum should have been rendered against it. After due consideration we affirmed the decree both on the direct and on the cross appeal, *560 9 So. (2d) 640, and appellants’ suggestion of error has been overruled.

Appellants have now presented a motion requesting the court to correct the decree rendered by us so as to impose upon cross-appellant the damages of five percent on the $5,000 decree, and appellants say that they are entitled to have this done under Section 3387, Code 1930. This section, so far as pertinent, reads as follows: “In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect .the Supreme Court shall render judgment against the appellant for damages, at the rate of five percentum and costs,” etc.

The only authority which the section confers, as regards the five per cent damages, is that such damages are to- be- adjudged against an unsuccessful appellant — the party who by his appeal brings the case to this court. No reference is had, either in the letter of the statute or in the- purpose thereof, to a cross-appellant, who follows the- case but does not bring it here. It may be, as to which we express no opinion, that if the appellant were to request that his appeal be dismissed, and in response the cross-appellant should demand that his cross-appeal be retained, the five percent statute would thereupon apply to the cross-appellant, for the reason that although the cross-appellant did not bring the case to this court, he would be the party through whom it was kept here; but there is no such a situation under the present record.

Motion overruled.

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Griffith, J.,

delivered the opinion of the court.

Appellants, as complainants, brought their suit against the defendant in the chancery court, seeking to recover a large sum of money. Upon the hearing the court rendered a decree for $5,000‘ in favor of - the complainants, which was considerably less than that for which they sued. The complainants were dissatisfied with the decree and appealed to this- court, the record having been filed here on February 26, 1942.

On March 2, 1942, the defendant took a cross-appeal, contending that no decree for any sum should have been rendered against it. After due consideration we affirmed the decree both on the direct and on the cross appeal, *560 9 So. (2d) 640, and appellants’ suggestion of error has been overruled.

Appellants have now presented a motion requesting the court to correct the decree rendered by us so as to impose upon cross-appellant the damages of five percent on the $5,000 decree, and appellants say that they are entitled to have this done under Section 3387, Code 1930. This section, so far as pertinent, reads as follows: “In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect .the Supreme Court shall render judgment against the appellant for damages, at the rate of five percentum and costs,” etc.

The only authority which the section confers, as regards the five per cent damages, is that such damages are to- be- adjudged against an unsuccessful appellant — the party who by his appeal brings the case to this court. No reference is had, either in the letter of the statute or in the- purpose thereof, to a cross-appellant, who follows the- case but does not bring it here. It may be, as to which we express no opinion, that if the appellant were to request that his appeal be dismissed, and in response the cross-appellant should demand that his cross-appeal be retained, the five percent statute would thereupon apply to the cross-appellant, for the reason that although the cross-appellant did not bring the case to this court, he would be the party through whom it was kept here; but there is no such a situation under the present record.

Motion overruled.

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Bluebook (online)

10 So. 2d 541, 193 Miss. 557, 1942 Miss. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-merchants-farmers-bank-miss-1942.