McMath v. Manns Bros. Boot & Shoe Co.

• Decision Date: 26 March 1891
• Citation: 15 S.W. 879
• Parties: MCMATH v. MANNS BROS. BOOT & SHOE CO.
• Court: Kentucky Court of Appeals

15 S.W. 879

MCMATH v. MANNS BROS. BOOT & SHOE CO.

Court of Appeals of Kentucky.

March 26, 1891

Appeal from circuit court, Pendleton county.

Applegate & Colvin and Bonar & Lee, for appellant.

J. T Simon, for appellee.

PRYOR J.

At the November term, 1888, of the Pendleton circuit court Manns Bros. filed a notice of their purpose to move for a judgment against the appellant for money collected as their attorney and which he had failed to pay or account for, and that he be suspended from the practice of the law until the money is paid. A judgment was rendered against the appellant for the sum collected, and then a rule issued on plaintiff's motion, made returnable on the first day of the April term of the court, against appellant to show cause why he should not be suspended from the practice of his profession, etc. The defense to the original motion was that the appellant had received the claim for collection from an agency in Cincinnati, and that these collecting agents were indebted to him for services rendered, and that he had the right to retain this money to satisfy this demand against this agency that the plaintiffs were strangers to him, and he only used their name because the claim upon its face seemed to be due them. The court very properly held that there was nothing in the defense, and rendered a judgment. The appellant then had until the next term of the court to pay the money, but in response to the rule to show cause why he should not be suspended he said that he had prayed an appeal to the superior court, and that the appeal was still pending, and therefore the rule should not be enforced. The judgment of the court was not superseded by an appeal, and that judgment is in full force, and we must hold it valid, because it must be presumed, as the judgment is in force, that there is nothing in the defense, and for the additional reason that an ample opportunity was given the appellant to pay the debt after judgment. The appellant is mistaken in saying that the court of its own motion had the rule to suspend issued. The rule was on the motion of the plaintiff. There was first a judgment for the money, as that part of the complaint asking a suspension from the practice was stricken out, and after the judgment the rule, on motion of the plaintiff, was issued asking the suspension. It may be that the appellant is appealing in good faith, but this does not stay the judgment below. The...