The opinion
On Rehearing.
THOMAS, J.
The statute providing for the taxing of 10 per cent as damages when there is affirmance on appeal of judgment rendered for money, whether debt or damages (section 6153, Code), does not apply here. This judgment was rendered against a claimant in interpleader, where the defendant has not the money.
The case of Caldwell v. U. S. F. & G. Co., 205 Ala. 463, 465, 466 , 88 So. 574 , is in point —there was supersedeas to hold up funds as here, and it was remarked that no summary judgment for damages could be rendered. This is the effect of Mrs. Woolfolk’s application on point in rehearing. In the Caldwell Case, supra, it was held supersedeas bond required payment of interest on the fund withheld from distribution.
In Smith v. Alexander, 87 Ala. 387 , 6 So. 51 , the allowance of interest was denied as. against the
claimant,
though charged • and allowed against the holder of the fund pending the. appeal. And in Dent v. Foy, 210 Ala. 161, 97 So. 627 , the allowance of reasonable attorney’s fees from which the appeal was taken, held that such a decree was not as that rendered in money, and within the influence of the above-cited statute. In this
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holding there is analogy to the instant question.
The fact that on appeal a supersedeas bond was given under sections 6132-6136, Code, does not render the claimant intervening — and who is not in possession and who does not keep the money — subject to statutory penalty and the summary judgment therefor. See Caldwell v. U. S. F. & G. Co., supra, as to rights ahd remedies indicated.
The motion of appellee is denied.
SAYRE, BOXJLDIN, and BROWN, JJ., concur.