
    Carol S. AYERS and Richard J. Ayers v. J. Michael PETRO.
    No. 53181.
    Supreme Court of Mississippi.
    Aug. 25, 1982.
    
      See also Miss., 417 So.2d 912.
    George M. Quin, Gulfport, for appellant.
    Herbert W. Wilson, Gulfport, for appel-lee.
    Before SUGG, P.J., and HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

ON MOTION FOR STATUTORY DAMAGES

Appellee filed a petition to partite a parcel of real property in Harrison County. Appellants contested the partition proceedings and appealed from an order of the chancellor directing a sale of the property for division of proceeds. We affirmed on July 21, 1982. Carol S. Ayers and Richard J. Ayers v. J. Michael Petro, No. 53,181. 417 So.2d 912 (Miss.).

Appellee filed a motion for statutory damages under section 11-3-23 Mississippi Code Annotated (Supp.1981). Our decision on this motion is controlled by Gillen, et al, v. Stuckey, et al, 73 So. 626 (Miss.1917) which held the statute authorizing damages in an unsuccessful appeal did not apply to partition suits.

This was a suit for the partition of land, in which there was a decree in accordance with the prayer of the bill, and the appeal is from a decree confirming the report of the commissioners appointed to make the partition which decree was affirmed by this court on a former day. We are now requested by appellees to correct the judgment of affirmance, so as to award them damages upon the value of the property in dispute, or, in event we should hold that the value thereof does not appear from the record, “to amend said judgment so as to include damages at 5 per centum on the value in dispute, to be ascertained in the court below, and to remand the case to the court for the purpose of ascertaining the amount.” We are of the opinion that the decree appealed from is not one “for the possession of real property, within the meaning of sections 4926 and 4927 of the Code of 1906.” (73 So. at 627)

We follow the construction of the statute announced in Gillen, supra, and deny the motion for statutory damages.

MOTION DENIED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.  