U.S. Fidelity & Guaranty Co. v. Herzig

• Decision Date: 07 January 1910
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. HERZIG.
• Court: Kentucky Court of Appeals

124 S.W. 279

UNITED STATES FIDELITY & GUARANTY CO. v. HERZIG.

Court of Appeals of Kentucky.

January 7, 1910

Appeal from Circuit Court, Laurel County.

"Not to be officially reported."

Action by A. Herzig against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. L Brown, Eli H. Brown, Jr., and Brown & Nuckols, for appellant.

Sam C Harding and Greene, Van Winkle & Schoolfield, for appellee.

HOBSON J.

M. A Miller brought a suit in the Laurel circuit court to enjoin A. Herzig, Cy Jones, and Green Jones from cutting the timber on a certain tract of land which she claimed that she owned. An injunction was obtained, and she executed bond with the United States Fidelity & Guaranty Company as provided by law. On the trial of the action in the circuit court her petition was dismissed and the injunction was dissolved. She prosecuted an appeal to this court without supersedeas. Thereupon Cy Jones and Green Jones, who claimed the timber on a certain part of the tract, brought an action on the injunction bond to recover the damages which they had sustained by reason of the injunction; and A. Herzig, who claimed the timber on another part of the tract, brought a similar action on the injunction bond to recover the damages which he had sustained by reason of the injunction. When these suits were brought, M. A. Miller executed a supersedeas bond and took out a supersedeas from the clerk of this court. The defendant then amended its answer in the suits on the injunction bond pleading the supersedeas in bar of the further prosecution of those actions until the termination of the appeal. The court sustained a demurrer to this pleading in both cases. The suit brought by Cy and Green Jones came on for trial, resulting in a judgment in favor of Jones in the sum of $425. The defendant prosecuted an appeal from that judgment to this court. Reversing the judgment, and holding that the amended answer setting up the supersedeas was good this court said: "In Gardner v. Continental Insurance Co. , 31 Ky. Law Rep. 69, it was held by this court that a supersedeas suspends the judgment, but does not annul it or undo what is already done. It has no retroactive effect; whatever is done under the judgment while it is superseded is done without authority from the judgment, as it is then powerless. Other authorities are collected in that opinion. See, also: Durham v. Strait, 119 Ky. 222 [83 S.W. 581, 26 Ky. Law Rep. 1147]; 2 Cyc. 910. In Johnson v. Williams, 82 Ky. 45, it was held that after the judgment was superseded, the plaintiff could not bring an action upon the judgment and take out an attachment against the defendant's property. As the judgment had not been superseded at the time this action was brought, it was properly instituted; but the subsequent...