Gregory v. Litsey

48 Ky. 43, 9 B. Mon. 43, 1848 Ky. LEXIS 14

• Court: Court of Appeals of Kentucky
• Decided: December 20, 1848
• Status: Published

Opinion

Judoe Beech

delivered the opinion of the Court.

Gregory obtained a decree against Litsey for $485 42 cents, which, after being paid off by the latter, was reversed in this Court. Upon the return of the mandate from this Court, the Court below granted a rule upon Gregory, to show cause why he should not be compelled to refund the amount thus paid him by Litsey. The rule, upon hearing, was made absolute, and Gregory decreed.to refund, and the propriety of that order or decree, is the only question for consideration.

Where money has been paid in obedience to a decree of the Circuit Court, which is reversed by the Court of Appeals, the Circuit Court, by rule upon the party, may cause it to be refunded, and it is not material whethei it has been voluntarily paid to the party or hi3 order, or coerced by execution. 'McHenry for appellant; Shtick for appellee.

It is conceded by counsel, if the money had been paid into Court by Litsey, or payment had been coerced by execution upon the decree, that the proceeding by rule to compel Gregory to refund after the reversal, would have been the appropriate remedy.. But i-t is insisted, as payment in this case was not so made, but voluntary, and in the country, that the proceeding was unauthorized. We perceive no good reason for this distinction, nor are we aware that any such has been recognized in practice by Courts of equity in cases of this kind. It is sufficient, if the 'payment has been made pursuant to the order of the Chancellor, and that the payment in this case was so made, satisfactorily appears. Whether made directly to Gregory, or by his direction, the money was paid for him to his creditors, is not material. The case of Kane, &c. vs Pilcher, &c., (7 B. Monroe, 651,) and other authorities, which might be cited, fully sustains the proceeding in. this case. And the decree is therefore affirmed.