Roberts v. Jenkins

• Decision Date: 01 February 1883
• Citation: 4 Ky.L.Rptr. 648,80 Ky. 666
• Parties: Roberts, & c., v. Jenkins, & c.
• Court: Kentucky Court of Appeals

80 Ky. 666

4 Ky.L.Rptr. 648

Roberts, & c., v. Jenkins, & c.

Court of Appeals of Kentucky.

February 1, 1883

1.By the supersedeas bond issued in the case of Jenkins and others v. The Boone County Court, the said court and all others were commanded to stay proceedings on the judgment of the circuit court and no other, and therefore appellee Jenkins is only liable in this action for such damages as may have resulted from the stay of proceedings upon the judgment appealed from.

2.The collection of the amount for which appellee Jenkins was held liable to reimburse appellants being enforceable under the order of July, 1872, of the county court of Boone county, and not under the judgment of the circuit court, the stay of proceedings emanating from the circuit court did not prevent the action of the county court.

3.After the supersedeas issued, the county court had plenary power not only to determine who were liable, but also to make the levy and collection independent of the judgment of the circuit court.

APPEAL FROM KENTON CIRCUIT COURT.

JAMES O'HARA, JR., FOR APPELLANT.

1.Appellee Jenkins, desiring to test the validity of the judgment of the circuit court, executed his covenant with his surety that he would satisfy and perform its judgment in case of an affirmance.The judgment has been affirmed, but no satisfaction made.The supersedeas unquestionably prevented the Boone countycourt from enforcing the collection of appellee's pro rata from him, and now the demand is entirely lost.

2.What else can be a satisfaction of the judgment but the payment of the money?

3.A supersedeas takes effect from the time that notice is given the officer or party to be restrained.(4 Dana, 559.)

MCKEE &amp FINNELL AND W. LINDSAY FOR APPELLEES.

1.The bond sued upon was executed to supersede the judgment of the Boone circuit court.That court had rendered no judgment against appellee Jenkins for the payment of money.

2.The appeal and supersedeas did not protect him against the payment of the assessment by the Boone countycourt.This assessment might as well have been enforced after as before the supersedeas issued, and therefore the failure of the court to act creates no cause of action on the bond.(1 Bush, 601;Taylor v. Tibbatts,13 B. Mon., 180;Cloud v. Coleman, 1 Bush, 548;Ib., 601;Boone County Court v. Snyder, MS. Op., 28thJune, 1878.)

OPINION

LEWIS JUDGE.

This is an action upon a supersedeas bond executed by appellees Jenkins and Norris, his surety, pending an appeal by Jenkins and others v. The Boone County Court, & c., from a judgment rendered by the Boone circuit court in April, 1872.

It appears that in 1864appellants borrowed a large sum of money, which was used in payment of bounties to soldiers enlisted in the United States army to supply the places of men drafted under a call of the President in July, 1864, to fill the quota of Boone county.

By acts of the General Assembly passed in 1865, the Boone countycourt was empowered to issue county bonds, and to levy a tax upon the property of the county to repay to appellants the amount so advanced and used; but before the bonds were issued, and the tax levied, P. B. Cloud and others filed their petition in the Boone circuit court against Coleman judge of the county court, and others, including appellants and obtained a writ of prohibition enjoining and prohibiting the sale of the bonds and collection of the tax.

This court, in the case of Cloud, & c., v. Coleman, & c., 1 Bush, 548, held that the acts referred to were void as to all tax-payers of the county, who neither aided in procuring their passage, acquiesced in, approved, nor received benefits from them; but as to others, the acts were self-imposed, and they had no right to repudiate them, or resist their enforcement.

Upon the return of the case to the circuit court, commissioners were appointed to hear proof, and report to the court the names of those belonging to any of the classes held liable by this court; and at the April term, 1872, of the circuit court, judgment was rendered in which it was decided that the only mode for the collection of the necessary money was by a tax to be enforced by the county court, and that the persons whose names were upon the schedules appended to the judgment appellee Jenkins being one of them, were within some one of the classes held liable to taxation for that purpose according to the opinion of this court in the case of Cloud v. Coleman.

In July, 1872, the Boone countycourt convened for the purpose, as stated in the order then made, of levying a tax upon the persons bound to pay the same as directed in the judgment of the circuit court rendered in April; and it was then ordered that, for the purpose of discharging the amount so adjudged by the circuit court to be raised, the assessments be made against the persons and for the amounts directed by that judgment.At the same term, as required by the acts of 1865 a collector and treasurer were elected by the county court.

After that order was made the appeal from the judgment rendered by the circuit court in April, 1872, before referred to, was brought to this court, and in December, 1875, the judgment was affirmed.

It is alleged in the petition in this case that in pursuance of the judgment of April, 1872, the Boone countycourt did levy...