The verdict in this case in the trial court was for $25,000 damages, but upon appeal this court concluded that said verdict was excessive, and that the same should not have exceeded $15,000 under the facts and circumstances connected with the cause; and, as there was no reversible error other than the awarding of excessive damages, the cause was, under Acts 1915, p. 610, amendatory of the act of April 21, 1911 (Laws 1911, p. 587), reversed and remanded unless the plaintiff, within the time specified, remitted all damages in excess of $15,000, but, if such remittitur was made and entered, the judgment as thus reduced should be affirmed.
The remittitur was made and entered, and the cause is accordingly affirmed, and the question now arising and which has been brought to our attention is whether or not the plaintiff is entitled to 10 per cent. damages upon the affirmance as provided by section 2893 of the Code of 1907, and whether said judgment as last rendered should draw interest from the date of the rendition in the trial court or in this court.
While the final judgment as rendered by this court under the above-mentioned facts resulted in an ultimate affirmance of this cause, we do not think that it is such an affirmance as carries with it the penalty of 10 per cent. damages as provided by said section 2893, as this court, notwithstanding the subsequent affirmance, did not confirm the judgment as originally rendered, but reduced it to the extent of $10,000; and, while the judgment as last rendered was an affirmance, it was such in form only, but not in substance. New York Life Ins. Co. v. Reese. 201 Ala. 673, 79 So. 245. This statute (section 2893) was evidently intended to penalize frivolous or delay appeals and did not contemplate that an appellant would be penalized on account of the mere form of the judgment as last rendered by this court, notwithstanding there was a substantial change of alteration of the judgment in his favor. Indeed, it seems to have been the unbroken custom of this court to exclude the penalty in cases similar to this one, though the fact may not have appeared in the opinion. We therefore hold that the clerk will not include the 10 per cent. damages in the judgment as finally rendered by this court.
The court is of the opinion, however, that while the judgment as rendered by this court is different from the one rendered by the trial court, it is merely the rendition of such a one as should have been rendered by the trial court and should bear interest from the date of the trial. Indeed, the latter part of the act of 1915 provides that the judgment entered by this court "shall be and remain the judgment of the lower court and date back to the time of the rendition of the judgment in the lower court."
All the Justices concur. *Page 685