Phillips v. Green

• Decision Date: 05 November 1941
• Citation: 155 S.W.2d 841,288 Ky. 202
• Parties: PHILLIPS et al. v. GREEN, Sheriff.
• Court: Kentucky Court of Appeals

155 S.W.2d 841

288 Ky. 202

PHILLIPS et al. v. GREEN, Sheriff.

Court of Appeals of Kentucky

November 5, 1941

Appeal from Circuit Court, Bell County; J. J. Tye, Special Judge.

Suit by John L. Phillips and others against Martin Green, Sheriff of Bell County, to enjoin the collection of a judgment. From a judgment, plaintiffs appeal and defendant cross-appeals.

Affirmed.

Cleon K. Calvert and W. L. Hammond, both of Pineville, for appellants.

H. L Bryant, of Pineville, for appellee.

STANLEY Commissioner.

The factual situation of the case presents the question of making a new application of familiar law.

A judgment for the net sum of $8,693.32 was rendered against J L. Phillips and five others as sureties on a bond purporting to guarantee the safety of bank deposits of a school board. An appeal was granted by the Bell Circuit Court. The defendants executed a supersedeas bond and writ of supersedeas issued staying further proceedings. Sections 747, 748, Civil Code of Practice. On May 30, 1939, we dismissed the appeal because the record had not been filed in this court within the time prescribed by Section 738, Civil Code of Practice. Pursuant to the terms of Section 764, Civil Code of Practice, the mandate provided for the recovery of damages by the appellee of 10 per cent. of the amount of the judgment. It was filed in the circuit court on September 12th and judgment was entered there against the appellants for $869.33, with 6 per cent. interest from the date of dismissal of the appeal, and also the costs of the action amounting to $189.95. Before the mandate had issued an appeal was prayed in this court and granted. Sections 734, 745, Civil Code of Practice. A supersedeas bond was at the time executed before the Clerk of the Court of Appeals and another writ of supersedeas issued. In due course the judgment was reversed with directions to dismiss the petition against the defendants because they were not liable on the bond. Phillips v. Board of Education of Pineville, 283 Ky 173, 140 S.W.2d 819.

Some time afterward an execution for the collection of the judgment of $869.33, with interest and costs, was placed in the hands of the sheriff of Bell County. The parties thereupon brought this suit to enjoin its collection upon the ground that as the principal judgment had been reversed and set aside the judgment on the first supersedeas bond had likewise failed, so that the execution was "without force and of no virtue whatever." The chancellor refused the injunction but directed that the execution be returned and another issue for the sum of $869.33 only instead of that sum with interest and costs. The plaintiffs prosecute this appeal from that judgment and the defendant has been granted a cross appeal from that part which eliminated the interest and costs.

We have a number of cases in which a judgment was affirmed with damages on an appeal granted by this court following the dismissal of an appeal granted by the circuit court. In them it is held that the appellee is entitled to 10 per cent. damages in both instances or on both bonds. Preece v. Burns' Adm'r, 261 Ky. 202, 87 S.W.2d 375, is a late one. A diligent search by counsel and by us, as well, has not revealed a case of any court of last resort where the judgment was reversed on the later appeal.

It is contended that damages are not authorized where it has been finally adjudged that the appellant is not liable in a suit for the reason that a judgment for damages on the dismissal of an appeal is supplemental and additional to the principal judgment; that without such a judgment there can be no supplement or addition. To state it another way, it is argued that in the absence of a valid existing judgment for a certain sum there is no basis for computing the damages. The argument is ingenious but we do not think sound. Something added to nothing is still something. But can it be said that at the time the 10 per cent. damages were adjudged there was no judgment? There was in fact a valid and subsisting judgment against the parties, the collection of which they had caused to be stayed by a voluntary contract. According to the terms of the Code, that judgment was the basis for computing the damages. In Empson v. Fortune, 102 Wash. 16, 172 P. 873, 874, a superseded judgment for $1,500 was reversed on a cross appeal with directions to the trial court to enter judgment for the same amount and something more in favor of the appellees. In an action to recover damages on the supersedeas bond it was contended that because the judgment had been reversed there was no liability on the bond, the argument being in substance that no judgment can be rendered upon a supersedeas bond unless the judgment appealed from is affirmed. It was rested upon the law as stated in 2 R.C.L. 270, to be that when an order is entered in an appellate court reversing a judgment it is forthwith vacated and no longer remains in existence. In responding to this it was assumed in the opinion arguendo that the disposition of the case was a reversal of the first $1,500, though in substance it was an affirmance. The Code of the state of Washington was quoted. Like Section 748 of our Civil Code of Practice, describing the conditions of a supersedeas bond, it contained the obligation of the appellant to satisfy and perform the judgment if it should be affirmed, "and any judgment or order which the supreme court may render, or make, or order to be rendered or made by the superior court." Rem.Code Wash.1915, § 1722. Said the court: "This language, it seems to us, renders it plain that a supersedeas bond secures something more than the mere payment of an affirmed judgment. If not, then we are wholly unable to assign any intelligible meaning to the concluding words of this quoted provision." The sureties on the supersedeas bond were, therefore, held liable.

What is denominated "damages" on a supersedeas bond is not strictly so, for it is at the same time a penalty. "It is a penalty or tax imposed by legislative enactment upon the unsuccessful litigant for having delayed the litigation, and for having kept the successful litigant from sooner collecting his debt--a panacea, as it were, for the law's delay. It is not laid upon the litigant because of any wrong done, or duty violated, but for the sole purpose of preventing useless and frequently vexatious delays in the termination of litigation. Some means had to be adopted that would tend to put an end to useless appeals, which would more frequently than otherwise be brought for the purpose of delay and annoyance. To meet this necessity, the Legislature passed the act imposing upon the unsuccessful appellant from a judgment for the payment of money a penalty in the shape of damages, equal to 10 per cent. of the judgment appealed from." Commonwealth v. French, 130 Ky. 744, 114 S.W. 255, 256, 17 Ann.Cas. 601.

It is of interest to note that the first act establishing the Court of Appeals, in 1792, provided that an appellant should give bond "to the appellee for the due prosecution of an appeal," the penalty to be "a reasonable sum in the discretion of the court." It was further provided that if the judgment should be affirmed the appellant should pay the appellee 10 per cent. on the sum due thereby and his costs. Littell's Laws, page 101. As early as 1802, in Hall v. Kennedy, Sneed Ky. Dec. 124, 2 Ky. 124, a motion by an appellee to dismiss an appeal because the...