Calvert v. Wilder

• Decision Date: 22 March 1918
• Citation: 201 S.W. 449,180 Ky. 97
• Parties: CALVERT v. WILDER.
• Court: Kentucky Court of Appeals

201 S.W. 449

180 Ky. 97

CALVERT v. WILDER.

Court of Appeals of Kentucky.

March 22, 1918

Appeal from Circuit Court, Whitley County.

Action by A. S. Wilder, Treasurer, against D. B. Calvert. Appeal by defendant was dismissed, with award of damages, and he moves to set aside such award. Motion overruled.

M. A Gray, of Corbin, for appellant.

Stephens & Steely, of Williamsburg, for appellee.

SETTLE C.J.

This case is before us upon the appellant's motion to set aside so much of the order dismissing the appeal as awarded appellee 10 per cent. damages on that part of the judgment of the circuit court superseded by him. It is claimed by the appellant that the amount in controversy was less than $500 which deprived the Court of Appeals of the power to award damages upon the dismissal of the appeal. In Childers et al. v. Ratliff et al., 164 Ky. 123, 175 S.W. 25, we held that as under the act of March 17, 1914, (Kentucky Statutes § 950), and rule 20, (169 S.W. vii) of the Court of Appeals regulating appeals to that court, an appeal from a money judgment amounting to as much as $200, inclusive of interest and costs, and less than $500, must be granted by the Court of Appeals, the judgment can be superseded only by executing a supersedeas bond before the clerk of that court; and, further, that as a circuit court is without jurisdiction to grant an appeal from a judgment for as much as $200 and less than $500, a bond taken thereunder for the purpose of superseding the judgment by the clerk of the circuit court is void.

Obviously, if a supersedeas bond taken by the clerk of the circuit court, where that court was without jurisdiction to grant the appeal, would be void, it would necessarily follow that the Court of Appeals in dismissing the appeal would be without power to award damages upon the amount of the judgment superseded by such bond. L. & N. R. R. Co. v. Smith's Adm'r, 178 Ky. 681, 199 S.W. 805. But we find from the record in this case that the appellant is in error in his contention that the amount in controversy on the appeal was less than $500. The judgment rendered against him in the lower court was for $5,308.83, with 6 per cent. interest thereon from May 27, 1916, until paid, and the costs of the action; the recovery being for money with which he was chargeable as former treasurer of the Corbin graded school district. The judgment also directed him to make a settlement of his accounts, as former treasurer, with the appellee, the present treasurer of the district, and to turn over to the latter the books and all moneys and property belonging to the district within 30 days after the entry of the judgment. The judgment closes as follows:

"To all of which the defendant [appellant] objects and excepts and prays an appeal to the Kentucky Court of Appeals, which is granted."

It will thus be seen that the appeal prayed of and granted by the circuit court was from the judgment as a whole. It is true,...