
    Courtney Bros. v. John Deere Plow Co.
    [84 South. 690.
    No. 21064.]
    Costs. No statutory damages on reversal and entry of modified judgment or decree.
    
    Under section 4926, Code 1906, Hemingway’s Code, section 3202, which provides that: “In case the judgment or decree, of the court below be affirmed, . . . the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum” — an appellee is not entitled to such damages, where the judgment or decree of the court below is reversed, and a modified decree is rendered by the supreme court.
    
      Appeal from the chancery court of Calhoun county.
    How. J. G. McGowaw, Chancellor.
    On motion to correct judgment.
    Motion sustained.
    For former opinion, see 84 So. 185. See, also, 83 So. 750.
    
      W. J. Evans and W. 0. Stone, for appellant.
    
      W. D. é J. B. Anderson and A. T. Stoval, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

On a. former day of this term the decree of the court below was reversed, and a modified decree was directed to be entered here, 84 So. 185, which was accordingly done, but there was included therein as damages five per cent, of the amount of the decree rendered in the court below.

The appellant’s motion to correct this decree by striking the five per cent, damages therefrom must be sustained, for the reason that such damages can be allowed only in accordance with section 4926, Code of 1906 (Hemingway’s Code, section 3202), which provides therefor only in case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect.

Motion sustained.  