on petition eor rehearing
Potter, Chief Justioe.The facts in the case, and the reasons urged for a reversal of the judgment, are set out in the former opinion. The particular objection made in this application for rehearing, is that the judgment is in contravention of Section 3, of Chapter 30, Laws 1895, which provides that interest on decrees and judgments, shall run at the rate of eight per cent per annum, and that it therefore contravenes the fourteenth amendment of the Federal Constitution which guarantees to plaintiffs in error equal protection of the laws.
In our former opinion we held that the statute requiring this court, upon affirmance of a judgment to tax a reasonable counsel fee for the benefit of defendant in error, and also adjudge in his favor damages in such sum *236as may be reasonable, not exceeding five hundred dollars unless the judgment directs the payment of money, and execution thereon has been stayed in the proceeding in error, when in lieu’of such penalty, the judgment shall bear additional interest, during the time for which it was stayed, at a rate not exceeding five per cent, per annum, to be ascertained and awarded by the court, was not invalid as conflicting with or repealed by the statute of 1895 above cited. We are still of that opinion.
If, however, that part of the judgment was erroneous and ought not to have been included as damages in the suit upon the supersedeas undertaking, it did not render the original judgment invalid, but the objection would go only to the amount of the recovery. As to that, we held the motion for new trial insufficient to raise the question, for the reason that the statute prescribes, as one of the grounds for new- trial, ‘ ‘ Error in the assessment of the amount of recovery,” and we then held, and are still of that opinion, that such an objection to the judgment, or cause for new trial, is not included in a specification that the judgment is- not sustained by sufficient evidence, or is contrary to law, each of which are independent statutory grounds for new trial.
Neither the statute upon the authority of which the additional interest was ordered, nor the judgment of this court awarding such interest, violates or contravenes the provisions of the Constitution of the United States, which prohibits a State from denying to any person within its jurisdiction equal protection of its laws. The statute acts upon all litigants alike. A general rule is provided, which is within the power of the Legislature for the government of procedure in this court, and the protection of those who have obtained judgments in the trial courts against frivolous appeals, and to compensate them to some extent for the expense necessarily undergone in attending to their interests when error proceedings have been prosecuted without just cause. The statute, allowing such additional interest, expressly provides that neither the *237same, nor any penalty shall be awarded or taxed, in cases wherein it is certified in tbe judgment of this court that there was reasonable cause for the proceeding in error.
The reasons for our failure to certify that there existed reasonable cause for the proceedings in error, will sufficiently appear by reference to the opinions delivered in the original cause. Syndicate Improvement Co. v. Bradley, 43 Pac., 79; 44 Pac., 60.
Sehea/ri/ng denied.
Corn, J., and Knight, J., concur.