Smith v. Western Union Tel. Co.
| Citation | 7 Ky.L.Rptr. 255,83 Ky. 269 |
| Parties | Smith, & c., v. Western Union Telegraph Co. |
| Decision Date | 10 October 1885 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM LOUISVILLE CHANCERY COURT.
EMMET FIELD FOR APPELLANT.
If a final judgment dissolves an injunction and dismisses the action, the injunction is continued in force by appeal and supersedeas. (Talbott v. Morton, & c., 5 Litt., 326; Yocum v. Moore, 4 Bibb, 221; Steele v Wilson, 9 Bush, 699; Civil Code, sections 747, 752; Whitehead v. Booram, 8 Bush, 400; Johnson v Williams, 5 Ky. Law Rep., 733; Hutchcraft's Ex'r v. Gentry, & c., 2 J. J. Mar., 500; Runyan v. Bennett, 4 Dana, 598; Turner v. Scott, 5 Ran., 332; Penrice v. Wallace, 37 Miss. 172; Brersler v. McCune, 56 Ill. 477; Williams v Pound, 48 Texas, 145; Drake on Attachments, 428.)
ROZEL WEISSINGER FOR APPELLEE.
Where a final judgment dissolves an injunction, an appeal by the plaintiff with supersedeas does not continue the injunction in force. Under the Code an appeal with supersedeas simply stays the execution of the judgment, and does not suspend the judgment itself. The old cases of Yocum v. Moore, 4 Bibb, 221, and Talbott v Morton, & c., 5 Litt., 326, do not now apply. ( Sixth Avenue R. R. Co. v. Gilbert, 71 N.Y. 430; High on Injunctions, section 1709.)
STATEMENT OF FACTS.
The appellee, the Western Union Telegraph Company, furnishes the market quotations direct to its patrons in the city of Louisville, by means of wires running into the offices of its customers, and by means of an instrument owned by it called a " ticker." Appellee threatening to remove the " ticker" from the office of appellant, to whom it had been furnishing the quotations in the manner described, appellant obtained an injunction restraining appellee from refusing to furnish him the market quotations it had theretofore furnished him in any manner less speedy and certain than it furnished the same to other customers, from disconnecting appellant's wire, and from removing the " " ticker." The injunction being dissolved on final hearing, appellant executed a supersedeas bond and had an order of supersedeas served. Other facts are stated in the opinion.
The appellant filed his petition and obtained an injunction against the appellee, that on the final hearing was dissolved and the action dismissed.
An appeal was prosecuted to this court with a supersedeas bond executed, and the order of supersedeas served.
It is insisted by counsel for the appellant that the execution of the supersedeas bond left the injunction in full force, and alleging that the appellee had been guilty of violating that order, a rule was awarded by this court against the appellee to show cause why it should not be punished for contempt. The question involved is one of law only, and the merits of the controversy have not been considered. What effect the service of the order of supersedeas had on the proceedings below is the only question involved here.
This court, as far back as the year 1815, in the case of Yocum v. Moore, 4 Bibb, 221, decided this question.
The plaintiffs in that case exhibited their bill with an injunction, and on the final hearing the bill was dismissed and the injunction dissolved. The title and right of possession to certain land was involved in the litigation, and the effect of dissolving the injunction entitled the parties to their writs of possession. The clerk refused to grant the writs, an appeal having been taken, and the lower court, on motion of the plaintiffs, directed the writs to issue. This court, in determining the question, said that the appeal suspended the operation of the order dissolving the injunction as well as that dismissing the bill. " The appeal under the circumstances, while it suspends the decree as to the main subject, should also, we apprehend, suspend the operation of all orders made during the same time incidental and relating to the principal matter in contest." The question as to the effect upon final judgments of the execution of a supersedeas bond and the service of the writ has been the subject of much diversity of opinion in the courts of this country.
The practice in the various States differ widely in this respect, but we may safely assume that the practice in this State has always followed the rule established in Yocum v. Moore, and we find nothing in the Code of Practice or in the experience of the past to justify departing from a practice so essential to the rights of parties involved in litigation.
A supersedeas is defined in the Code of Practice to be " a written order signed by the clerk, commanding the appellee and all others to stay proceedings on the judgment or order." It is a remedy provided by law for the unsuccessful litigant who complains of certain errors committed to his prejudice by the court below, and stops all proceedings on the judgment until this court disposes of the appeal.
If an injunction is the primary object of the action, or is an incidental remedy in aid of the purposes of...
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