Empire Coal Co. v. Empire Coal Mining Co.

• Citation: 222 S.W. 947,188 Ky. 516
• Parties: EMPIRE COAL CO. ET AL. v. EMPIRE COAL MINING CO. ET AL.
• Decision Date: 15 June 1920
• Court: Court of Appeals of Kentucky

222 S.W. 947

188 Ky. 516

EMPIRE COAL CO. ET AL. v. EMPIRE COAL MINING CO. ET AL.

Court of Appeals of Kentucky.

June 15, 1920

Appeal from Circuit Court, Christian County.

Action by the Empire Coal Company against the Empire Coal Mining Company and others, wherein, after judgment and appeal by defendants, plaintiff company and Douglas Henry, its trustee in bankruptcy, appeal. Appeal dismissed.

See also, 183 Ky. 699, 210 S.W. 474.

Trimble & Bell, of Hopkinsville, for appellants.

John T Edmunds, of Hopkinsville, Stites & Stites, of Louisville Thomas N. Greer, of Shelbyville, Tenn., Laffoon & Waddill, of Madisonville, and Guy H. Briggs, of Frankfort, for appellees.

HURT J.

The Empire Coal & Coke Company on the 15th day of March, 1911 executed a lease upon its mines, etc., in Christian county to the appellant Empire Coal Company. The duration of the lease was 10 years from its date. During the year 1916, the Empire Coal & Coke Company sold its mines and mining property to C. N. Bryan, who in turn sold same to J. D. Hutton and G. Bibbs Jacobs, who thereupon organized two corporations called the Empire Coal & Land Company and the Empire Coal Mining Company. Hutton and Jacobs were the owners of all the stock in both of these corporations, except a few shares issued in the names of members of their families. The latter corporation being in possession of the property, under some kind of an arrangement with the Empire Coal & Land Company, and engaged in working the mines and selling coals therefrom, when on February 13, 1917, the Empire Coal Company instituted an action at law against the Empire Coal Mining Company, the Empire Coal & Land Company, J. D. Hutton, G. Bibbs Jacobs, and C. N. Bryan, alleging that the defendants were wrongfully in possession of the property and praying to recover same from them, and damages for its detention. Each of the defendants to this action filed a separate answer, in which were presented certain equitable defenses, which resulted in causing a transfer of the action from the law side of the docket to the equity side of it, and a final judgment in the case by the chancellor. Before the submission of the cause, the Empire Coal Company filed an amended petition, in which it averred as a fact its claim to the possession and use of the property under the lease to it from the Empire Coal & Coke Company, and that the defendants had acquired their rights to the property with full knowledge of the existence of the lease which it held, and prayed in the alternative that either it be granted the relief sought in its petition, or "that, if said relief cannot be granted in full, it be adjudged a lien on said property for whatever amount the court may adjudge to be due it, and all other relief which plaintiff may be shown to be entitled according to the rules of equity," etc. When the cause was submitted for trial and judgment, the court adjudged that the Empire Coal Company recover of C. N. Bryan the sum of $8,000 for the value of its rights under the lease, but of this sum it should recover from the Empire Coal Mining Company and the Empire Coal & Land Company the sum of $4,000, with a lien upon the property to secure the payment of the judgment and an order of sale of the property to satisfy the judgment, but with a judgment over in favor of the two latter companies against Bryan for the amount of the judgment, when it should have been paid by them. The Empire Coal Company was awarded a judgment for its costs against the Empire Coal Mining Company, the Empire Coal & Lumber Company, J. D. Hutton, G. Bibbs Jacobs, and C. N. Bryan. From so much of the judgment as adjudged a recovery of costs, and a lien upon the property for the satisfaction of the judgment of $4,000 and its interest, against the Empire Coal Mining Company and Empire Coal & Land Company, the latter two companies, Hutton, Jacobs, and Bryan prayed and were granted an appeal to this court, and from so much of the judgment as adjudged a recovery of $4,000 with its interest against the Empire Coal Mining Company and Empire Coal & Land Company, they prayed and were granted an appeal to this court. From so much of the judgment as adjudged a recovery in favor of the Empire Coal Company against the Empire Coal Mining Company and the Empire Coal & Land Company of only $4,000 and its interest, and failed to adjudge $12,500, the Empire Coal Company prayed and was granted an appeal to this court. From so much of the judgment as adjudged a recovery of only $8,000, instead of $12,500, and failed to adjudge a recovery in its favor of the further sum of $2,200 against Bryan for the value of certain personal property, the Empire Coal Company prayed and was granted an appeal to this court.

The judgment was rendered on the 7th day of July, 1917, and on the 17th day of December thereafter the Empire Coal Mining Company, the Empire Coal & Land Company, Hutton, and Jacobs perfected their appeal to this court against the Empire Coal Company, and thereafter, on the 28th day of March, 1919, the action was tried upon that appeal in this court, and the judgment of the circuit court was affirmed. Empire Coal Mining Co. et al. v. Empire Coal Co., 183 Ky. 699, 210 S.W. 474. After the judgment had been affirmed the Empire Coal Company collected the judgment which it had recovered against the Empire Coal Mining Company and the Empire Coal & Land Company. After the affirmance of the judgment the Empire Coal Company became a bankrupt, and before two years had expired, in fact lacking a day, after the rendition of the original judgment, the Empire Coal Company by its trustee in bankruptcy took this appeal upon the same record as the appeal of the Empire Coal Mining Company and others against it had been taken. The appellees here are the same as the appellants upon the former appeal, and the appellant here was the appellee upon the former appeal. The appellees, by answer in this court, set up several grounds upon which they insist that the present appeal ought to be denied. One of the grounds is that the question to be decided is res judicata, and that the appellant is estopped by the former judgment of this court, rendered upon the appeal of the present appellees, to again litigate the question which the appellants seek to have again considered upon the present appeal. It will be observed that the judgment of the circuit court determined that the appellant had a right of recovery against the appellees because of appellant's rights under the lease, and the amount which appellant was entitled to recover of appellees was adjudged by the circuit court to be the sum of $4,000, and for the satisfaction of such sum awarded appellant a lien upon the property, which lien was directed by the judgment to be enforced. The appellees, upon their appeal from that judgment, among other things, insisted that the judgment against them was erroneous, because the lease was, as they asserted, valueless. The appellant was the sole appellee, and appeared in this court and by briefs of its counsel insisted upon an affirmance of the judgment which was adjudged by this court to be done, and that judgment has long since become final.

The appellant being a party to the former appeal, and a party to the judgment of this court which affirmed the judgment of the circuit court, it is difficult to suggest any reason why it should not be concluded by that judgment, as to matters and things in issue upon the...