Torbitt & Castleman v. Middlesboro Grocery Co.

• Decision Date: 05 March 1912
• Citation: 147 Ky. 343
• Parties: Torbitt & Castleman v. Middlesboro Grocery Co.
• Court: Kentucky Court of Appeals

147 Ky. 343

Torbitt & Castleman v. Middlesboro Grocery Co.

Court of Appeals of Kentucky.

Decided March 5, 1912.

Appeal from Bell Circuit Court.

PRYOR & CASTLEMAN for appellant.

N. R. PATTERSON for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSON — Sustaining Motion.

The judgment here appealed from was rendered June 30, 1911, and the appeal was then granted. On December 11, 1911, the appellee had an execution issued on the judgment, no supersedeas having been taken out. The time for filing the transcript in this court expired on December 12, 1911. On January 11, 1912, at the instance of appellants the clerk of the Bell Circuit Court accepted a supersedeas bond and issued a supersedeas thereon. Thereafter at this term of the court, an order was entered by this court, dismissing the appeal because the transcript was not filed in time. The appeal was dismissed with ten per cent. damages, and the motion is now entered to set aside so much of the order as awarded ten per cent. damages.

In Turner v. Wickliffe, Assignee of Farmers' Bank, 146 Ky., 776, it was held that the clerk of the circuit court though he has power to take an appeal bond has no power to issue a supersedeas thereon after the time has expired for filing a transcript in this court; and that a supersedeas issued without authority does not suspend the execution of the judgment or warrant the awarding of 10 per cent. damages on the dismissal of the appeal. It is insisted that this case is taken out of the rule there laid down by reason of the fact that the appellant insisted that the clerk should take the bond and issue the supersedeas; that the officer who had the execution obeyed the supersedeas; and that as appellant has enjoyed the suspension of the judgment obtained by his own acts, he is estopped to question the validity of the supersedeas. In support of this view we are referred to Spooner v. Beth's Ex'or, 8 R., 185. But in that case the bond bore date at a time when the clerk had authority to act, and the case really went off on the ground that this was its true date. What is said by the court as to the estoppel in that case must be limited to the case which the court had before it. If the clerk by the procurement of appellant had dated the bond back and the appellee, being misled by this and not knowing the facts, had obeyed the supersedeas, the estoppel might well be applied; but in the case at bar the appellee knew all the facts. An estoppel never arises where the...