ON SUGGESTION OF ERROR. The appellee sued the appellant in the circuit court of Jones county for monthly payments of ten dollars each, alleged to be due him under an accident insurance policy, aggregating the sum of four hundred dollars, and for one hundred four dollars and eighty cents alleged to be due him because of premiums paid by him on the policy after his disability arose.
The jury returned a verdict for the appellee for the amount sued for, in the following language: "We, the jury, find for the plaintiff, the sum of five hundred four dollars and eighty cents," and a judgment was rendered thereon for five hundred four dollars and eighty cents, "with interest and costs."
The appellant, defendant in the court below, brought the case to this court, and on a former day of the present term the judgment of the court below was reversed, this court holding that the appellee was entitled to recover four hundred dollars due him under the disability clause *Page 63 of the policy, but not for the premiums paid by him thereon, and rendered a judgment here for the appellee for four hundred dollars and interest from the date of the judgment in the court below. 144 So. 50. The opinion then rendered contained no order as to the costs of the appeal, but the judgment rendered adjudged the costs of the appeal against the appellant. On a suggestion of error by the appellant, responded to by the appellee, complaining, among other things, of this award of costs in this court to the appellee, we corrected the judgment so as to adjudge the costs of the appeal against the appellee. The appellee has now filed a suggestion of error on two grounds:
First, that we erred in sustaining the appellant's suggestion of error; and
Second, that we erred when rendering the original judgment on the merits, in not awarding the appellee interest on each of the monthly payments due him under the policy from their due dates.
The first of these complaints is but a second suggestion of error addressed to the same question argued and decided on the suggestion of error filed by the appellant.
The second complaint comes long after the time for filing suggestions of errors has expired. Rule 14 of this court.104 Miss. 906. The suggestion of error, therefore, should be dismissed; but since the same result will be reached by deciding it on its merits, we have decided so to do, without intending thereby to establish a precedent therefor.
Under his first complaint the appellee's contentions seem to be, (1) that he should not have been taxed with the costs on appeal, and if mistaken in this, then (2) the costs thereof should have been apportioned between him and the appellant.
The question as to who shall pay court costs is regulated by statutes. Under section 668, Code 1930, which applies to all courts, "the party in whose favor judgment *Page 64 shall be given . . . shall be entitled to full costs, except when it may be otherwise directed by law."
The only statute which makes the successful appellant in the Supreme Court liable for costs is section 3408, Code 1930, which provides that he shall be liable for certain costs in event they cannot be made out of the appellee.
The question then is: Is the appellant here a successful party within the meaning of the statute? Or, to express it differently, did he obtain here the judgment sought by him on the appeal?
Under section 3378, Code 1930, the judgment to be rendered by this court, when error appears in a judgment or decree, appealed from, is to reverse the judgment or decree, and (1) remand the case for a new trial, or (2) render such judgment as the trial court should have rendered; or, if the decree is not erroneous in all particulars, then (3) to affirm it in so far as it is correct, and reverse it in so far as it is erroneous, and remand the case for a new trial on the questions only with respect to which the judgment or decree is erroneous, if separable. Section 3405, Code 1930; Rules 12 and 13 of this court, 104 Miss. 906.
The judgment in the Supreme Court sought by an appellant on an appeal thereto is, therefore, one reversing the judgment or decree appealed from, in whole or in part, and the rendition of one of these three judgments. This, the appellant here succeeded in accomplishing, for the judgment of the trial court was reversed, and the judgment which the trial court should have rendered was here rendered. Howie v. Bonds, 87 Miss. 698, 40 So. 227. The appellant, therefore, under the statute, seems to be entitled to recover the costs incurred on the appeal.
Section 3387, Code 1930, in part provides 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 *Page 65 the appellant for damages, at the rate of five per centum and costs," etc.
Under this statute, an appellant who obtains a reversal of the judgment appealed from cannot be taxed with the 5 per cent. penalty, when the court, instead of remanding the case, renders such judgment or decree as the trial court should have rendered. Howie v. Bonds, supra; Vicksburg. S. P.R. Co. v. Lawrence,78 Miss. 86, 28 So. 826: Courtney Bros. v. John Deere Plow Co.,122 Miss. 611, 84 So. 690; Fidelity Deposit Co. v. Wilkinson County, 109 Miss. 879, 69 So. 865. It would seem to follow that the same rule should be applied when adjudging the payment of costs for the statute covers both costs and the five per cent. penalty, without making any distinction between them.
There are several statutes which provide for the apportionment of costs in certain cases, but none of them apply here. These statutes are sections 672, 682, 3404 and 3405.
In several cases this court has apportioned costs when reversing the judgment or decree appealed from, and rendering such judgment or decree as the trial court should have rendered, among which are: Lamb v. Rowan, 83 Miss. 45, 35 So. 427, 690; Brewer v. Overton (Miss.), 92 So. 558; Vicksburg, S. P.R. Co. v. Lawrence, 78 Miss. 86, 28 So. 826; Barry v. Wingfield (Miss.), 126 So. 842, and Hartford Fire Ins. Co. v. Williams (Miss.),145 So. 94. In none of these cases were reasons given or statutes cited, except in Barry v. Wingfield, where it is said that section 4296 (which should be section 4926) Code of 1906, section 3407, Hemingway's 1927 Code, now section 3387, Code 1930, "has long been construed by this Court to authorize it to apportion the costs in this class of cases," citing Lamb v. Rowan and Brewer v. Overton.
In Lamb v. Rowan there was both a direct and cross appeal, each of which was successful in part. In this *Page 66 case there were two appellants, one on direct and the other on cross appeal, each of whom was successful in part, and each, therefore, was entitled to recover his costs, thereby necessitating, there being only one record, the apportioning of the costs between them. Should it be thought that the costs in that case were "not embraced expressly or by fair implication in some provision of law," then the apportionment of the costs was authorized by section 682, Code of 1930. The case is, therefore, not in point here for the record here was brought to this court by direct appeal only, there being no cross-appeal or cross-assignment of errors.
It has been suggested that in appeals from the chancery court this court may apportion the costs on appeal under section 672, Code of 1930, which provides that the chancery court "shall have power to decree that either party shall pay the costs of any suit in equity, or that the same may be divided as may appear equitable." Whether this statute applies in appeals from chancery courts is not before us, this appeal being from a circuit court, and we express no opinion thereon.
If the other four of these cases are controlling here, as to which we express no opinion, the effect of their holding is not that this court must apportion the costs when it reverses a judgment or decree, and renders such judgment or decree as the trial court should have rendered, but only that it has the right within its discretion, so to do. This discretion, if such there here is, we declined to exercise when entering the order here said to be erroneous by counsel for the appellee, and we see no reason for receding therefrom.
The judgment appealed from is in solido for five hundred four dollars and eighty cents, was not separable for the purposes of appeal therefrom, unless by agreement, as to which we express no opinion. So that it was necessary for the appellant to appeal from it in its entirety, in order to obtain any relief whatever therefrom. *Page 67 The record also being an entirety, it was necessary for the whole of it to be brought to this court, in the absence of an approved agreement to the contrary, in order for the appellant to obtain any relieef from the judgment based on it. The appellant could not by itself alone have lessened, and it did nothing to increase, the costs of the appeal.
This brings us to the appellee's complaint that we erred in awarding interest on the judgment rendered from the date of the judgment in the court below, instead of awarding interest on each monthly installment from the date it was due under the policy. If there is any error in this respect, as to which we express no opinion, it was committed in the court below. Its judgment is in this language: "The plaintiff, Cap Thomas, do have of and recover from the defendant, Ætna Life Ins. Co., a corporation, the sum of five hundred four dollars and eighty cents, with interest and costs." This is a judgment for interest only from the date of the judgment. The case was presented to us on direct appeal by the appellant, no cross-appeal being taken by the appellee, nor any cross-assignment of error being filed by him. If there was error in the judgment appealed from, it should have been complained of on the original hearing, in the absence of which the error, if any, was waived.
The suggestion of error will be overruled.