Rennebaum v. Atkinson

• Decision Date: 23 September 1899
• Citation: 52 S.W. 828
• Parties: RENNEBAUM v. ATKINSON et al. [1]
• Court: Kentucky Court of Appeals

52 S.W. 828

RENNEBAUM v. ATKINSON et al.^[1]

Court of Appeals of Kentucky.

September 23, 1899

"Not to be officially reported."

Rule against M. J. Moss, judge of the Bell circuit court, to show cause why he should not cause to be entered a judgment for damages in accordance with the mandate of the court of appeals in the case of Rennebaum v. Atkinson.Rule made absolute.

DU RELLE, J.

To a rule against M. J. Moss, judge of the Bell circuit court, to show cause why he should not enter, or cause to be entered, a judgment for damages, in accordance with the mandate of this court in the case of Rennebaum v. Atkinson, the circuit judge has responded, setting forth a number of objections, which will be considered in their order.It is first objected that upon a former motion for a rule, this court held, in an opinion in 49 S.W. 342, that in the record upon which that motion was based it did not appear that a state of facts existed which authorized the award of damages upon a money judgment, because the record here presented did not show that the return of the execution had been made by the sheriff at the time of the motion in the circuit court, or was before the circuit court upon the hearing of that motion.It appears from the record before us that since that opinion was rendered a motion was made for a judgment for the damages and that the return of the sheriff showing that the property could not be delivered was before the circuit court upon the hearing of the motion.An affidavit entitled a "Response" was filed upon the hearing of the motion, and a demurrer to this response was overruled by the circuit court, upon the theory that the relief sought was barred by the former refusal of the circuit court to award damages; such refusal being held to be a former adjudication upon that motion, because upon the hearing thereof the return of the sheriff was in existence, and might have been introduced.The response of the circuit judge relies upon his ruling upon the original motion for damages as res judicata.We are unable to concur in this contention.It does not seem to us that a motion for a judgment in accordance with the mandate of this court can, in any just sense, be deemed a litigation of property rights, or that a refusal to grant such motion can be pleaded as res judicata, so as to bar a litigant of the enforcement of rights which the court has adjudged to him.It seems to us more in the nature of final process.We concede freely that, under section 388 of the Civil Code of Practice, providing that, in actions for the possession of specific personal property, the plaintiff may have judgment for its delivery if it can be had, or, if not, for its value and for damages for its detention, in accordance with which section the judgment in this case appears to have been asked and the execution sued out, the question whether damages upon the value of the property claimed should be awarded, in the event the property could not be restored, is a narrow one either side of which might be plausibly maintained.But having reached the conclusion that damages in such case should be awarded, and that the mandate of this court was a direction to award them in the event that the writ failed to obtain the property, a refusal to so award them does not estop the party from renewing his motion, any more than a return of nulla bona would estop him from suing out a new execution.Moreover, under the later statute(Acts1891-93, p. 1010, c. 219, art. 7), which is a re-enactment of...