315 F.2d 780 (6th Cir. 1963), 15020, Nordmeyer v. Sanzone

Docket Nº:15020.
Citation:315 F.2d 780
Party Name:Ruth H. NORDMEYER, Administratrix of the Estate of Joseph A. Nordmeyer, Deceased, Plaintiff-Appellee, v. Charles SANZONE, Defendant-Appellant.
Case Date:April 16, 1963
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 780

315 F.2d 780 (6th Cir. 1963)

Ruth H. NORDMEYER, Administratrix of the Estate of Joseph A. Nordmeyer, Deceased, Plaintiff-Appellee,

v.

Charles SANZONE, Defendant-Appellant.

No. 15020.

United States Court of Appeals, Sixth Circuit.

April 16, 1963

Page 781

A. J. Jolly, Bassmann, Kaufmann, Root & Jolly, Newport, Ky., for appellant.

Robert C. Cetrulo, O'Hara & Ruberg, Covington, Ky., for appellee.

Before CECIL, Chief Judge, and MILLER and O'SULLIVAN, Circuit Judges.

PER CURIAM.

The Plaintiff, as Administratrix of the estate of Joseph A. Nordmeyer, deceased, recovered a judgment in the District Court against the defendant, Charles Sanzone, in the amount of $45,000.00 for damages by reason of the death of her husband arising out of an automobile accident alleged to have been caused by the negligence of the defendant in the operation of his automobile. In taking his appeal, the appellant executed a supersedeas bond. The judgment was affirmed by this Court. 6 Cir., 314 F.2d 202.

The plaintiff-appellee has filed a motion in this Court to assess an additional 10% Of the amount of the judgment as damages for the delay caused by the appeal, which it is claimed was without merit and was taken merely for delay.

In support of her motion, appellee relies first upon Rule 25(2), Rules of this Court, which provides:

'Damages for Delay. In any case where an appeal has delayed proceedings on a judgment appealed from, and shall appear to have been taken merely for delay, damages not exceeding 10 per cent of the amount of the judgment in addition to interest may be awarded and added to the judgment.'

Under this rule, the award of damages where an appeal has delayed proceedings on a judgment appealed from is discretionary with the Court. The rule provides that damages 'may be awarded' and added to the judgment. The amount of any such award is not 10% Of the judgment, but damages 'not exceeding 10% Of the amount of the judgment.' In our opinion, the appeal in this case was not so lacking in merit as to justify an award of damages under this rule.

In support of the motion, appellee also relies upon Section 21.130 of the Kentucky Revised Statutes, which provides as follows:

'Damages upon affirmance. Upon the affirmance of an appeal, or the dismissal of an appeal after it has been docketed in the Court of Appeals, where the...

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