This motion is predicated upon an alleged mistake of the clerk in entering a judgment different from that intended to be rendered by the court, and not upon any alleged error of the court in deciding the issues which were considered and determined in the opinion, as presented by the assignment of error and briefs, when the decree appealed from was affirmed and remanded. The alleged mistake of the clerk consisted in including in the judgment heretofore entered the five per cent damages provided by Section 3387, Code of 1930, on the amount of the value of the property the possession of which was directed to be changed by the decree, and which five per cent damages amounts to the sum of $5,000 when calculated on the basis of the value fixed by the chancellor on the property involved, the statute in question providing that: "In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs."
The decision in the above styled cause was rendered on May 25, 1942, (8 So. 2d 257), on an appeal granted herein by the chancellor under Section 14, Code of 1930, to settle all of the controlling principles involved and to avoid expense and delay, the decree appealed from having directed a change in the possession of property. The chancellor had found the facts in favor of the appellee Romine under his contention that Sample and Falvey had furnished money with which Romine, who *Page 737 was experienced in the oil and gas business, had purchased oil leases with the understanding that after repayment of the money furnished the three parties to the agreement would share one-third each in the enterprise, and that the leases acquired by Romine in the minerals on certain lands so purchased in the names of Sample and Falvey were held by them as trustees of Romine's interest; ordered them to convey to Romine such one-third within thirty days, failing in which he empowered and ordered the clerk of the court as a commissioner thereof to execute the conveyance, and appointed a Master to state an account of the income and profits from the operations theretofore conducted under the said leases in order that Romine might thereafter be paid his one-third thereof, subject to the repayment of the money advanced by Sample and Falvey for the purchase of the leases and also subject to any expenditures then unascertained that they may have properly made for the development of the properties involved. The Master was ordered to report to the court his findings of law and fact as to the rights of the parties under such an accounting, and for proper hearing and further decree thereon. The decree then proceeds to adjudge that such an accounting will be voluminous and extraordinarily expensive, and that to avoid such expense and the delay incident thereto an appeal to the Supreme Court should be granted under said Section 14, Code of 1930, and it also undertook to adjudicate the value of the interest of the said Romine to be the sum of $100,000, as of that time, and fixed the amount of the supersedeas appeal bond at the sum of $200,000, under Section 29, Code of 1930, although the value of such one-third interest could not be adjudicated at any definite amount so as to preclude the value being questioned by the appellants, since an accounting was adjudged to be necessary to thereafter determine the income and profits from the operations theretofore conducted under the leases and to ascertain the amount of *Page 738 expenditures appropriately made by the appellants in connection therewith and for which they would be entitled to reimbursement from the one-third interest declared to be vested in the said Romine. Therefore, we think it clear that the court below undertook to fix the value of the one-third interest of Romine only for the purpose of determining the amount of the appeal bond to be furnished by the appellants and not as a final decree which would preclude a further consideration of such value. Moreover, the value of the one-third interest to be conveyed to Romine in the properties which remain to be developed and which are still held in the names of Sample and Falvey was wholly immaterial to the issue involved, except for the purpose of fixing the amount of a supersedeas bond for appeal. Only the amount of the income and profits derived from previous operations, after allowing proper credits for expenditures made by the defendants in developing the properties, is of importance; and as heretofore stated the accounting is yet to be had to ascertain the amount thus due, subject to approval by the court upon the coming in of the Master's report on a further hearing provided for in the decree appealed from.
The main question for decision on the motion now presented is whether the decree appealed from is a final or an interlocutory decree, since it was held in the case of Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127, 128, the five per cent damages allowed by Section 3387, Code of 1930, where the judgment or decree of the court below be affirmed or the appellant fails to prosecute his appeal to effect, are not permitted in appeals from interlocutory decrees, and in which case, supra, the court said: "In order to appeal from an interlocutory decree under section 17, chapter 151, Laws of 1924 [now Section 14, Code of 1930], it takes the joint action of the court and the appellant. If the appellant commits a wrong against the appellee in taking the appeal, *Page 739 the court granting the appeal, is a party to the wrong. An appeal under that statute from an interlocutory decree to settle the principles of the case is an appeal for the benefit of all parties to the cause. It has for its purpose the correct guidance of the trial court in the further progress of the case. Although the appellant may be unsuccessful, the result of such an appeal may be as much for the benefit of the appellee as the appellant. . . . We are of opinion, therefore, that the latter statute only applies to final decrees, such decrees as to which the law gives to the complaining party an absolute right of appeal; that the statute applies alone to cases where the unsuccessful appellant is the sole cause of the wrong done the successful appellee. That is not true of appeals from interlocutory decree."
In the case of Comans v. Tapley, 101 Miss. 203, 57 So. 567, 572, Ann. Cas. 1914B, 307, it was said, among other things, that "where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded, not as final, but interlocutory."
And in the case of Gilleylen v. Martin et al., 73 Miss. 695, 19 So. 482, it was held that a decree directing a partition of land, if it can be equitably done, and, if not, that the commissioners appointed to make the same shall report accordingly to the next term of the court, is not a final decree, but an interlocutory decree, from which no appeal lies. But, of course, such an appeal may now be granted as from an interlocutory decree under Section 14, Code of 1930. In such a case, it is often true that the rights of those claiming to be tenants in common of the property involved are fully adjudicated insofar as ownership is concerned, and the decree ordering the partition may still not be final.
In Griffith's Mississippi Chancery Practice, Section 610, the rule is stated to be that: "A decree is final when *Page 740 nothing in the case is reserved by the court for further decision. Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, then the decree upon which the question arises is to be regarded not as final but as interlocutory; . . ."
Again, in Griffith's Mississippi Chancery Practice, Section 611, it is said that "the decree may be interlocutory as to some one or more of the parties and final as to the others." But, that is not the case here; it is not final in definitely determining the amount of the recovery by the appellee or the measure of the liability of the appellants, but pretermits such an adjudication until the accounting can be had.
In the case at bar the decree appealed from expressly provided that the Master appointed to state an accounting as to the earnings and profits that had accrued from previous operations and of the expenditures appropriately made by the appellants for the development of the properties should be reported to the court, with findings of law and of fact upon said accounting, for proper hearing and further decree thereon. The chancellor, therefore retained matters of law and of fact — a substantial portion of the merits of this case, for further determination.
As to the right of the court to correct the judgment entered by the clerk under our decision herein of May 25, 1942, and in regard to which a suggestion of error challenging the correctness of the decision as to the issues which had been considered and discussed in the opinion then rendered was overruled on September 21, 1942 (9 So. 2d 643), during the present term of the court, it is provided by Section 755, Code of 1930, that: "Where, in the record of a judgment or decree of any court of law or equity, there shall be a mistake, miscalculation, or misrecital of any sum of money, quantity of any thing, or of any name, and there shall be among the *Page 741 records of the proceedings in the suit any verdict, bond, bill, note, or other writing of the like nature or kind, or docket or other memoranda by the judge or chancellor, whereby such judgment or decree may be safely amended, it shall be the duty of the court, and of the judge thereof in vacation, to amend such judgment or decree thereby according to the truth, . . ."
And in the case of Humphreys et al. v. Thompson et al., Miss., 130 So. 152, 153, wherein the five per cent damages were erroneously added by the clerk of this court, in entering up the judgment which had been affirmed, it was held that: "The court has the inherent right to enter the judgment that it could have entered under the law, and intended to enter; and this may be done, not only at the term of court at which the judgment was entered, but at a subsequent term. Wilson v. Town of Handsboro,99 Miss. 252, 54 So. 845, Ann. Cas. 1913E, 345; Rowell [ Co.] v. Sandifer, 129 Miss. 167, 91 So. 899; Wilson v. City of Lexington,155 Miss. 157, 124 So. 268;" and the motion to correct such judgment was sustained. See also Couret et al. v. Conner et al.,118 Miss. 598, 79 So. 801, recognizing the rule by clear implication that a judgment which does not conform to that intended to be rendered by the court the same may be corrected by motion, and holding that if it seeks to effect a change in the decision actually made or to modify a judgment intended to be rendered, the objection thereto can only be reached by suggestion of error seasonably filed. To the same effect are the cases of Crudup v. Roseboom, 125 Miss. 205, 88 So. 497, and Huckaby v. Jenkins, 154 Miss. 378, 122 So. 487.
We therefore hold that the question is properly and timely raised by motion in the instant case, since the court did not intend that the five per cent damages on the $100,000 valuation fixed as a basis for the interlocutory appeal should be assessed against the appellants and included in the judgment of affirmance and remand. *Page 742 The question of whether the appellee was entitled to recover such damages was of course not called to the attention of the court or considered by it in reaching a decision of the issue involved for determination, and such damages were not authorized on the affirmance of the appeal then pending. The motion to correct the judgment so as to eliminate such item is accordingly sustained.
Motion sustained.