
    Case 31 — ¡Motion by Loins Oberdorfer to Correct Mandate Awarding Nina L. P. White Damages Against Him in a Case Appealed to the Court of Appeals.
    Oberdorfer v. White.
    Appeal — Judgment—Costs—Damages—Assessment.
    Civil Code, see. 764, providing that 10 per cent, damages shall be allowed on the amount superseded against the ¡appellant on the affirmance of a judgment for the payment of money, the collection of which has been superseded, does not apply where the only pecuniary relief afforded by the judgment appealed from was an award of the costs of the action.
    
      LE'IBER & LINCOLN, por appellant.
    In this proceeding a judgment was entered in the lower court reforming a deed which was superseded and appealed and affirmed, on February 4, 1904, and a mandate was issued awarding 10 per cent, damages on the costs, and this motion is made to correct said mandate. We submit that it was error to award a mandate for damages in this case, under the settled rule of this court, and we ask that it be corrected in so far as it awards damages. Bergen v. Farmers & Traders’ Bank, 9 Rep., 194; Worsham v. Lancaster, 104 Ky., 813; Wade v. First Nat. Bank, 1 Bush, 697.
    SAMUEL AVRITT, por appellee.
    We insist that this motion can not be sustained:
    1. Because the amount involved is so small that the court will not consider it;
    2. Because this court has no authority to correct a mandate issued at a previous ter
    3. Because the mandate is proper.
    AUTHORITIES.
    Civil Code, sec. 764; Cockrell v. Mize, 11 Bush, 637; Ky. Stat., see. 2220; Calfin v. Kelling, 6 Rep., 510; Cornwall v. Fletcher, 9 Rep., 403; Bergen v. Farmers & Traders’ Bank, 9 Rep., 194; Southern Mutual Life Ins. Co. v. Best. 8 Rep., 610.
   Opinion op the court by

JUDGE HOBSON

Sustaining Motion.

Appellee obtained a judgment in the Jefferson circuit court adjudging a deed executed by ber to appellant to be a mortgage. He appealed from that judgment, with supersedeas to this court, and the judgment was affirmed. Oberdorfer ■v. White, 78 S. W., 436, 25 Ky. Law Rep., 1629. The clerk entered up a judgment affirming the judgment appealed from, with damages. A motion is now made to correct the mandate in so far as it awards damages. Section 764 of the Civil Code provides that 10 per cent, damages on the amount superseded shall be awarded against the appellant upon the affirmance of a judgment for the payment of money, the collection of which has been superseded. The only judgment for money in favor of appellee was the judg* ment for costs in the action. It has been the uniform rule of the court not to adjudge damages on costs. It was so held in Handley v. Russell, 8 Ky., 152, and this rule has been uniformly maintained by the court since.

The motion to correct the mandate is therefore sustained.  