ON SUGGESTION OF ERROR. The decree appealed from was affirmed on a former day, and the appellee now suggests that we erred in not including in the judgment of affirmance a judgment on the appeal bond for five per cent. of the value of the land involved.
Leaving out of view rule 14 of this court (104 Miss. 906), which would bar this motion, for it is only a suggestion of error, and coming to the merits of the motion, the statute on which the appellee's claims is based is section 4926, Code of 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 . . . as follows: . . . If the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or be a judgment or decree . . . to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it," etc.
The appellee's contention is that the decree "was for the dissolution of a restraining process as to certain property, real or personal, or an interest in property, or was a judgment to enforce or establish a lien or charge or claim on, or some interest in property."
Section 3148, Code of 1906 (Hemingway's Code, section 2499 et seq.), provides that, when a person begins a suit affecting real property, he shall file with the clerk of the chancery court of the county where the property is situated a notice containing the names of all the parties to the suit, a description of the property, and a brief statement of the nature of the lien, right, or interest sought to be enforced, which the clerk shall file and record in the lis pendens record. In event such notice is not *Page 392 filed with the clerk, the pendency of the suit shall not affect the rights of bona-fide purchasers or incumbrancers of the property, unless they have actual notice thereof. On the termination of the suit, it is the duty of the court wherein it was pending to direct the clerk to make an entry thereof in thelis pendens record. When the court below dismissed the appellant's bill of complaint, it complained with the statute, and directed the clerk to note the disposition of the case in thelis pendens record.
The appellant's contention is that a lis pendens notice is a restraining process, and that an order of the court directing the clerk to note in the lis pendens record the termination of the suit, is a dissolution of such process within the meaning of the satute. There is no merit in this contention. In the absence of a statute, the pendency of a suit affecting real property is constructive notice to all persons of the right claimed thereby therein. And the statute hereinbefore referred to simply narrows that rule by making it apply, when the statute has not been complied with, only to persons who have actual notice of the suit.
The decree of the court below did not enforce or establish any lien or charge or claim upon or any interest in the property involved in the suit; it simply declined to enforce or establish a claim thereto asserted by the appellant.
The statute is highly penal, and must be strictly construed.
Overruled.