Phoenix Insurance v. McKernan

46 S.W. 698, 104 Ky. 224, 1898 Ky. LEXIS 150

• Court: Court of Appeals of Kentucky
• Decided: June 22, 1898
• Status: Published

Opinion

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

May 25, 1898, tlie judgment in each of these cases was affirmed, [46 S. W., 10], and June 14th- appellees moved this court to permit them to file a certified copy of each of three supersedeas bonds executed and filed in the Logan Circuit Court clerk’s office September 23, 1896, and, upon the filing of- said bonds, to direct either the clerk of the court or clerk of Logan Circuit Court to issue a supersedeas on each of said bonds, and to award appellee 10 per cent, damages on the amount of each of said judgments. Section 764 provides that upon affirmance of a judgment for payment of money, the collection of Avhich, in whole or part, has been superseded, ten per cent, damages on the amount superseded shall be awarded against the appellant. Of course, damages can not be awarded unless the judgment appealed from has been superseded; for if the appellee has not been prevented during pendency of the appeal from enforcing, by the usual and proper proceedings, collection or satisfaction of his judgment, he has sustained no damage by reason of the appeal. And, in order to stay proceedings on a judgment appealed from, a supersedeas must be issued; the mere execution of a supersedeas bond being ineffectual for that purpose, as expressly provided by section 747. Indeed, the motion now before us is made upon the assumption that the order of supersedeas must precede the award of damages we are asked to make. There appears to have been an execution on each of the three judgments duly issued, and returned, “No property found;” and thereafter supersedeas bonds were executed, and filed in the Circuit Court clerk's office, but never filed in the clerk’s office of the Court of Appeals. Appellants, however, did not, nor were they required to, apply for a supersedeas; and manifestly this court cannot — now the judgment has been affirmed, and there is no legal obstacle in the way of collection or satisfaction of it — on appellees’ own motion, order a supersedeas issued, merely that we may have a pretext for awarding damages. Motion overruled.