C. & O. R. Co. v. Kelly's Admx.
| Decision Date | 15 December 1914 |
| Citation | 161 Ky. 660 |
| Court | Kentucky Court of Appeals |
| Parties | Chesapeake & Ohio Railway Company v. Kelly's Administratrix. |
Appeal from Montgomery Circuit Court.
SHELBY, NORTHCUTT & SHELBY and L. APPERSON for appellant.
O'REAR & WILLIAMS for appellee.
On October 15, 1914, the opinion in this case was handed down and may be found in 160 Ky., 296. On November 17, 1914, the appellant filed in this court a petition for a rehearing which was pending, undisposed of on November 25th.
On November 25th the appellee moved the court to permit her to file an amended record from the Clerk of the Montgomery Circuit Court showing that the supersedeas bond and order of supersedeas issued thereon were omitted by mistake to be transcribed into the record, and tendered and offered to file, in connection with her motion, a copy of the supersedeas bond, duly attested by the Clerk of the Montgomery Circuit Court. The record accompanying this motion consisted of a copy of the supersedeas bond, certified as correct by the Clerk of the Montgomery Circuit Court, and his affidavit, in which he said that the appellant, Chesapeake & Ohio Railway Co., had executed in his office and before him the supersedeas bond, and thereafter an order of supersedeas was issued by him but that he was unable to find the order and return thereon because it had been mislaid. He further said that by oversight he failed to copy the supersedeas bond and transmit the same with the original record to this court.
Damages will not be awarded on the affirmance of a judgment unless the supersedeas bond is in the record and an order of supersedeas has issued, but when the bond has been executed, it will be presumed that an order of supersedeas issued unless it is affirmatively shown that it did not: Whitehead v. Boorom, 7 Bush, 399; United States Fidelity & Guaranty Co. v. Boyd, 29 Ky. L. R., 598.
The object, therefore, of tendering the supplementary record was to furnish the court authority upon which it might award damages on the judgment, which was affirmed. Counsel for appellant seriously protest against allowing the supplementary record to be filed upon the ground that unless the supersedeas bond is in the record when the case is decided, that is, when the opinion is handed down, the court is not authorized to award damages.
On the other hand, it is the argument on behalf of appellee that the court may permit a supplementary record, such as is here tendered, to be filed at any time before the judgment becomes final; or, in other words, before the mandate has been issued; and upon the filing of the supersedeas bond within this time damages should be awarded as if the bond were in the record when the opinion was delivered.
Section 760 of the Civil Code provides in part: "No mandate shall issue, nor decision become final, until after thirty days, excluding Sundays, from the day on which the decision is rendered," and the judgments of this court never become final until the mandate is issued. The mandate from this court is the order that gives authoritative notice to the parties and the trial court that the judgment appealed from has been reversed or affirmed, as the case may be. In other words, the mandate is the judgment of this court, the opinion being merely an expression of the views of the court that are made effective by the mandate.
If no petition for a rehearing is filed, it is the duty of the Clerk, unless otherwise directed by the court, to issue the mandate as a matter of course when it is due, as provided in Section 760, but if a petition for a rehearing is filed, this suspends the issual of the mandate until it is disposed of. When a petition for a rehearing is filed, and pending its disposal, the court has the same power over the case as it would have within the thirty days if no petition for a rehearing was filed. So that if this supplementary record could have been filed at any time after the opinion was handed down, it might be filed at any time before the petition for a rehearing was disposed of, although this might permit its filing after the expiration of thirty days from the date when the decision was rendered.
The precise question, therefore, is, may this court at any time after the opinion in the case has been delivered and before the mandate issues permit a supplementary record containing the supersedeas bond, to be filed? This is purely a question of practice entirely within the power of this court to control, there being no code or statutory provision on the subject. Being thus a question of practice, it is important that it should be definitely settled, as there appears to be some doubt as to the proper practice owing to apparent, if not real, conflict in the opinions in which the matter has been treated in cases involving questions like the one here presented, as well as in cases involving analogous questions.
In the case of Phoenix Ins. Co. v. McKernan, et al, 104 Ky., 224, it appears that after the opinion had been handed down affirming the case, and before the mandate issued, the appellees moved this court to permit them to file certified copies of the supersedeas bonds executed in the circuit court, and, upon the filing of the bonds, to direct either the clerk of this court or the clerk of the Logan Circuit Court to issue a supersedeas on the bonds and to award appellees 10%...
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