
    Davis, Director General of Railroads, etc., v. Wilkins.
    [90 South. 180.
    No. 21890.]
    Railroads. United States Director General liable for damages on affirmance of appeal; United States is not a favored litigant as to appeals.
    
    Where the director general of Railroads appeals from a judgment, and the judgment is affirmed, damages at the rate of five per cent. on such judgment appealed from will be rendered under section 4936, Code 1906 (section 3303, Hemingway’s Code). Such damages are liquidated damages in the nature of a condition of appeal, and not a penalty in the sense that term is used in Mo. Pac. R. R. Co. v. Ault, 355 U. S. —, 41 Sup. Ct. 593, 65 L. Ed. —. As to appeals, the United States is not a favored litigant, but stands upon the same plane as other parties.
    Appeal from circuit court of Montgomery county.
    Hon. T. L. Lamb, Judge.
    On motion to correct judgment by eliminating that portion embracing damages at the rate of five per cent, as not recoverable against the United States or the director general.
    Motion overruled.
    For former opinion, see 88 So. 720.
   Ethridge, J.,

delivered the opinion of the court.

On a former day this cause was affirmed and judgment entered, with five per cent, damages on the judgment appealed from under section 4926, Code of 1906 (section 3202, Hemingway’s Code.) This motion is made to correct the judgment then rendered so as to eliminate that portion of the judgment embracing damages at the rate of five per cent, on the ground that the same is not recoverable against the United States or the director general, acting under the authority of the United States, and the cases of Mo. Pao. R. R. Co. v. Ault, 225 U. S. —, 41 Sup. Ct. 593, 65 L. Ed. —; Davis v. Elzey, 89 So. 666; Neely v. Payne, 89 So. 669.

We have considered the question presented, and have reached the conclusion that these cases have no application to the five per cent, damages under the above Code section, which section does not impose a penalty upon the director general nor upon the United States government .for neglect of the duty, nor as a liability for negligence for the nonperformance of any obligation. The damages imposed by such statute are liquidated damages, and constitute a condition of taking an appeal from the lower court to this court. It is entirely optional with the director general or the government as to whether such ajipeal will be taken. As to appeals, the government stands- in no different condition from an individual, but when it comes into court and submits to the jurisdiction of the court it comes in on the same terms, as to appeal, as any other litigant. Digest U. S. Sup. Ct. Rep. (L. Ed.) p. 5778, and authorities there cited; 29 Am. & Eng. Ency. L. 172 et seq.; 39 Cyc. 788; U. S. v. Smith, 94 U. S. 214, 24 L. Ed. 115.

The motion will therefore be overruled.

Overruled.  