1. Appeal — attorney's fee — rule as to allowance on appeal.
It is the long-established custom of Supreme Court to allow in the Supreme Court as attorney's fees on appeal one-half of the amount awarded in the Trial Court.
2. Costs — motion for allowance of attorney's fee on appeal — overruled — where none allowed in Trial Court.
Where no attorney's fee was asked for or allowed in the Trial Court, appellee's motion in Supreme Court for allowance of attorney's fee on appeal would be overruled without prejudice.
Headnotes as approved by Hall, J.
HALL, J.
ON MOTION FOR ATTORNEY'S FEE
(Hn 1) The appellee has filed a motion for the allowance of an attorney's fee and frankly says in the motion that no attorney's fee was asked for or allowed in the trial court. It has been our custom, established over a long period of years, to allow in this Court as attorneys fees on the appeal one-half of the amount awarded in the lower court. Owen v. Owen, 88 So.2d 100 (102), not yet reported in the state reports. This is not in conflict with what we said in Castleberry v. Castleberry, 214 Miss. 94, 58 So.2d 67, and in Hibner v. Hibner, 217 Miss. 611, 64 So.2d 756, for the reason that attorneys fees were asked for in the lower court in those cases.
(Hn 2) The motion under consideration in this case sets out numerous pleadings which were filed in the lower court and which are not a part of the record before us, and, if the motion before us were for a writ of certiorari to complete the record, we would probably sustain it. However, under the present status of the record, the motion for attorney's fee will be overruled without prejudice.
Motion overruled without prejudice.
Roberds, P.J., Lee, Holmes and Ethridge, JJ., concur.