To so much of the opinion and judgment in this case as awards 10 per cent damages for delay against appellants, I most respectfully dissent.
The discretion given to the higher courts by law, to include in their judgments of affirmance a decree for 10 per cent damages on the amount of the original judgment, as the court may deem proper, was only intended for the protection of the courts against appeals purely for delay, and should be carefully exercised, so that injustice may not be done. *Page 387 The adjudicated cases upon the subject in this State have usually been appeals in debt cases, and I have been able to find no case where such damages were awarded in a case diligently prosecuted under an apparently honest claim of right.
In this case appellants appealed from what they evidently believed to be an unjust rule, which allowed a claimant of goods to buy them in at public sale for $930, and then sue the sheriff and recover the full value of the goods, $2000; thus securing the goods themselves at less than half price, and recovering, by way of damages, their full value, with interest. The appeal was promptly taken and vigorously prosecuted, with brief and argument, in which appellants contend for a different measure of damages, as laid down in other States; and so far as the record shows, they have not attempted a moment's delay.
If they believed the rule to be unjust, it was their constitutional right to attack it; and I do not believe that in such a case the appellees have suffered by the delay to the extent of 10 per cent in addition to the full value of the goods and interest, which they have recovered; or that this court should give additional damages in such a case.