Louisville & N.R. Co. v. Melton

• Decision Date: 16 January 1912
• Citation: 146 Ky. 242,142 S.W. 382
• Parties: LOUISVILLE & N. R. CO. v. MELTON.
• Court: Kentucky Court of Appeals

142 S.W. 382

146 Ky. 242

LOUISVILLE & N. R. CO. v. MELTON.

Court of Appeals of Kentucky.

January 16, 1912

Appeal from Circuit Court, Hopkins County.

Action by Spencer Melton against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

B. D Warfield and C.J. Waddill, for appellant.

Maurice Kirby Gordon, Clay & Clay, and Gordon, Gordon & Cox, for appellee.

HOBSON C.J.

The facts of this controversy are stated in the opinion delivered when the matter was before us on a motion entered after the return of the case from the United States Supreme Court. See L. & N. R. R. Co. v. Melton, 140 Ky. 741, 131 S.W 1006. We then held that, as this court has no original jurisdiction, the matter could not be determined by it in the first instance, and that the plaintiff's remedy was by an action on the appeal bond in a court of original jurisdiction. The motion was accordingly dismissed without prejudice to an action on the appeal bond. The plaintiff thereupon instituted his action in the Hopkins circuit court on the appeal bond, and, on a trial of the matter in that court, his position as to the mode in which the interest was to be counted was adopted, resulting in a judgment against the railroad company for the sum of $463.47, with interest from June 10, 1910. The railway company appeals.

As the facts are fully stated in the former opinion, they need not be repeated here. Under rule 23 of the Supreme Court, which is there quoted, the interest on the judgment must be calculated from the date of the original judgment until it is paid at the same rate that similar judgments bear interest in the courts of the state where the judgment was rendered. Section 2220, Ky. St. (section 1816, Russell's St.) provides: "A judgment shall bear legal interest from its date. A judgment may be for the principal and accrued interest; but if rendered for accruing interest it shall bear interest only according to its terms." Six per cent. is the legal interest under the statute. The judgment was rendered for $22,000, with interest at 6 per cent. from its date, and it bears interest only according to its terms; that is, the interest must be counted on the amount of the judgment at 6 per cent. from its date until it was paid. On the original appeal to this court by the railroad company from the judgment for $22,000, it was affirmed in this court with 10 per cent. damages, but no judgment was rendered by this court fixing the amount of the damages. Under the mandate, this judgment is always entered in the circuit court upon the filing of the mandate in that court. At the time the appeal to the Supreme Court of the United States was taken, no judgment had been rendered fixing the damages, and the mere award by this court of 10 per cent. damages did not bear interest. The rule is that penalties do not bear interest unless authorized by statute. McHaney v. Crabtree, 6 T. B. Mon. 109; Licking Valley Bldg. Ass'n v. Commonwealth, 89 S.W. 682, 28 Ky. Law Rep. 543; Bank of Kentucky v. Commonwealth, 107 S.W. 812, 32 Ky. Law Rep. 1087. In Kountze v. Omaha Hotel Co., 107 U.S. 387, 2 S.Ct. 911, 27 L.Ed. 609, it was held by the Supreme Court that the sureties in an appeal bond by reason of which the defendant had retained the possession of real estate were not liable for the rents on the property pending the appeal. In that case in discussing the liabilities of the sureties on such a bond, the court said: "In relation to money judgments, a long train of decisions in England shows that the damages for delay for which the bail in error were to respond were the interest on the sum recovered below from the day of signing final judgment to the time of affirmance, and costs in the writ of error, and in some cases double costs." The court in the subsequent part of the opinion points out that, where there is a real controversy, the damages for the delay in the payment of a money judgment shall be only at the rate of 6 per cent. per annum, and that 10 per cent. damages in addition to interest may be allowed when the writ of error appears to be sued out merely for delay. In the case before us there was a real controversy, and no damages were awarded in the Supreme Court. The rule announced by the Supreme Court of the United States was followed by the Supreme Court of Massachusetts in a suit on a bond taken on an appeal to the United States Supreme Court, where it was insisted that the sureties in the bond were liable for the rents of the property, which had thus been detained from the plaintiff. Burgess v. Doble, 149 Mass. 256, 21 N.E. 438. In Pike v. Gregory, 118 F. 128, 55 C.C.A. 78, in the Circuit Court of Appeals of the First Circuit, the court had before it a suit upon an appeal bond, executed on an appeal to the United States Supreme Court, where a judgment distributing a fund in court had been superseded, and it was insisted that the sureties in the bond were liable for the interest on the fund during the time that the plaintiffs were deprived of its possession by reason of the appeal. The court, however, rejected this contention, and refused to hold the sureties liable; the plaintiffs having received the fund and its accumulations while in the hands of the receiver. Precisely the same argument was made there as is made here; that is, that the plaintiffs had lost some of the interest during the time, and should be made whole by the sureties. After...