AFFHOLDER, INC. v. SOUTHERN ROCK, INC.

No. 83-4420.

746 F.2d 305 (1984)

AFFHOLDER, INC., a Missouri Corporation, Plaintiff-Appellee, v. SOUTHERN ROCK, INC., a Mississippi Corporation, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

November 16, 1984.


Attorney(s) appearing for the Case

Butler, Snow, O'Mara, Stevens & Cannada, Thomas W. Prewitt, Luther T. Munford, Jackson, Miss., for defendant-appellant.

Campbell & DeLong, Fred C. DeLong, Jr., Greenville, Miss., Alan E. Popkin, St. Louis, Mo., for plaintiff-appellee.

Before CLARK, Chief Judge, RUBIN and POLITZ, Circuit Judges.


On Motion to Assess Damages for Appeal

ALVIN B. RUBIN, Circuit Judge:

The appellee, Affholder, having prevailed in this diversity case, seeks to recover 15% of its judgment, in addition to the judgment amount, under a Mississippi statute that assesses such a fixed penalty against a litigant who unsuccessfully appeals. We conclude that Fed.R.App.P. 38 precludes such an automatic deterrent to the right to appeal and allows a federal appellate court...

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