This is an action upon an undertaking given in pursuance of the statute to stay execution, pending proceedings in error, upon a judgment recovered by Chester B. Bradley against the Syndicate Improvement Company in the District Court for Natrona County. That judgment was affirmed by this court.
It having been determined that there was no reasonable cause for the proceeding in error, this court allowed the sum of one hundred dollars as a reasonable fee for counsel for defendant in error in that cause, and ordered that the judgment of the District Court bear additional interest at the rate of one per cent per annum for the time the same was stayed, by authority of Section 3130, Rev. Statutes 1887.
Upon the trial of the present case, the plaintiff offered in evidence the proceedings and judgment of the District Court and the opinions of this court in the original case, and judgment was rendered againt the principal and sureties in the undertaking for the sum of $5,334.75.
*233This case comes here on error, and the plaintiffs in error .contend that the judgment is erroneous because its amount is greatly in excess of the sum actually due. In support thereof it is contended, First: That the judgment of this court imposing the additional interest was in violation of the Act of February 11, 1895, which fixed the rate of interest upon judgments at eight per cent per annum, except that in case a' judgment is founded upon a contract by the terms of which a less rate of interest shall have been agreed upon, the contract rate shall ’ apply to the judgment. (Sess. Laws 1895, p. 55.) Second: That in computing the amount due upon the judgment interest was compounded by determining the sum due on the third day of March, 1896, the date of the final order in this court, and computing interest upon that amount to the date of judgment.
The condition of the undertaking is that, ‘ ‘ The Syndicate Improvement Company, plaintiff in error, will pay the condemnation money and costs, if the said judgment so as aforesaid sought to be reversed, be affirmed in whole or in part, or if the said proceedings in error be dismissed. ” The judgment which is nowhere for review seems to have been made up as follows: The original judgment, $3,741.-54; costs, 1>383.75; additional costs, $190.25; interest at nine per cent from May 18, .1895, to March 3, 1896, and $100.00 attorney fees allowed by the .Supreme Court, making a total of $4,875.51, and then interest on this amount at nine per cent per annum until date of judgment March 19, 1897.
We do not regard the provision of Section 3130 of the Revised Statutes as in conflict with the act of February 11, 1895. The later act fixes the rate of interest which judgments shall bear by operation of law; the former requires that in a certain class of cases, by order of the Supreme Court, it shall bear additional interest. Prior to the act of 1895 the rate of interest upon judgments was twelve percent per annum. Rev. Stat., Sec. 1312. That section and the chapter of which it was a part was expressly repealed by the act of 1895. Sections 1312 and 3130 *234stood together, and the later act aforesaid contains nothing which prevents the continuing effect and operation of Section 3130. If the judgment of this court was erroneous because it merely determined the rate of additional interest, instead of ascertaining by computation, the amount thereof which should be added .to the judgment by way of penalty, it would amount to an irregularity only, and would not render the judgment void and susceptible to attack for that reason in the present action. Gill v. Backus (Mich.), 66 N. W., 347.
We think, however, that the interest should not have been compounded, and also that the judgment did not bear the additional interest of one per cent after the expiration of the time for which execution was stayed. After the mandate had gone down from this court execution was no longer stayed. It was error, therefore, to include that additional rate after that time. It is also questionable whether it was proper to compute interest upon the amount awarded as counsel fees. The amount erroneously included in the judgment is not large, and it may be doubtful whether it reaches such a sum as would justify a reversal. However that may be, the question must be disposed of in this case upon other considerations. The motion for new trial presented as the only grounds therefor, that the decision of the court is not sustained by sufficient evidence and is contrary to law. The statute provides as a separate cause for a new trial the following: “Fifth: Error in the assessment of the amount of recovery, whether too large or too small, when the action is upon a contract, or for the injury or detention of property.” Error in the amount of recovery constitutes the sole objection urged to the judgment. It was not specified as a ground for new trial, and consequently was not presented to the district court. It - is, therefore, no cause for reversal by this court. Hillebrant v. Brewer, 6 Tex., 45; Jacobs et al. v. Hawkins et al., 63 Tex., 1; Ray v. Thompson, 26 Mo. App., 431; Brosnahan v. Best Brewing Co., id., 386; Cook v. Clary, 48 Mo. App., 166; *235Bartlett v. Burden, 39 N. E. (Ind. App.), 175; Thickstun v. B. & O. R. R., 119 Ind., 26.
The difference between an allegation that the judgment is not sustained by sufficient evidence, or is contrary to law, and one that there is error in the amount of recovery, is obvious. Under the latter there would be no dispute respecting the correctness of the judgment in general; and that it was rendered in favor of the proper party would be conceded. The error would be chai’ged only as to the sum found due. A manifest purpose therefore appears in the statutory specification of such an error as an independent cause for new trial. It is not embraced within the charge that the judgment is not sustained by the evidence or is contrary to law. The judgment must be affirmed.
CoRN, J., concurs. Knight, J., did not sit in this case, it having been heard and submitted prior to the death of the late Mr. Chief Justice Conaway.