Tennessee Cent. R. Co. v. Reeves' Adm'r

• Decision Date: 01 March 1912
• Citation: 147 Ky. 305,143 S.W. 995
• Parties: TENNESSEE CENT. R. CO. v. REEVES' ADM'R.
• Court: Kentucky Court of Appeals

143 S.W. 995

147 Ky. 305

TENNESSEE CENT. R. CO. v. REEVES' ADM'R.

Court of Appeals of Kentucky.

March 1, 1912

Appeal from Circuit Court, Christian County.

Action by James Reeves' administrator against the Tennessee Central Railroad Company. From a judgment for damages against defendant on a supersedeas, it appeals. Affirmed.

Downer & Russell, for appellant.

R. O Hester, for appellee.

WINN J.

The administrator of James Reeves brought his action in the Christian circuit court against the Tennessee Central Railroad Company to recover damages for his death. Upon the trial the plaintiff recovered a verdict and judgment for $2,000. The railroad company superseded the judgment and prayed an appeal to this court. The transcript was not filed in this court in time, and in May, 1911, on motion of Reeves' administrator, the appeal was dismissed, with damages, on the supersedeas. 143 Ky. 467, 136 S.W. 870. Reeves' administrator thereupon filed in the Christian circuit court the mandate, and entered his motion for a judgment for damages against the railroad company upon the supersedeas. The railroad company entered appropriate objections to the rendition of such a judgment, its objections were overruled, and a judgment was entered in favor of Reeves' administrator for $200, 10 per cent. on the judgment superseded. This judgment for the damages was superseded by the railroad company, and it prosecutes this appeal.

The question presented is one of practice. The railroad company takes the position that damages upon a supersedeas can be recovered only by original action; while Reeves' administrator takes the position that the practice followed was a proper practice, and that as against the appellant company he did not have to resort to an independent action. Section 764 of the Civil Code of Practice provides as follows: "Upon the affirmance of, or the dismissal of an appeal from, a judgment for the payment of money, the collection of which, in whole or part, has been superseded as provided in chapter 2 of this title, 10 per cent. damages on the amount superseded shall be awarded against the appellant."

Under this provision the appellee, upon the dismissal of the appeal from the superseded judgment, was entitled to his judgment for the 10 per cent. damages against the appellant as a matter of right. It would be folly to require him to resort to an independent action to recover that his right to which was...