Popp v. L. & N. R. R. Company

40 S.W. 254, 101 Ky. 157, 1897 Ky. LEXIS 166

• Court: Court of Appeals of Kentucky
• Decided: April 14, 1897
• Status: Published

Opinion

JUDGE GUFFY

delivered the opinion, or the court.

Tbe appellant obtained a judgment in the court below against tbe appellee for $10,000, from which judgment appellee prosecuted an appeal to this court. This court affirmed the judgment, with damages. It appears that the interest 'accrued on the judgment amounted to about $2,000 at tbe time-of the affirmance. Upon the return of the cause to the court below, tbe appellant moved for or sought to obtain judgment for 10 per cent, damages on the $2,000 interest as. well as on the $10,000, which the lower court finally refused, and to reverse that judgment this appeal is prosecuted.

Section 764 of the Code of Practice provides that, “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dismissal of an appeal from a judgment for the payment of money, the collection of which, in whole or part, has been superseded, as provided in chapter 2 of this title, 10 per cent, damages on the amount superseded shall be awarded against the appellant.”

The contention of appellant is that, inasmuch as the supersedeas prevented the collection of the interest and that interest being part of the judgment or sum due at the time of the affirmance, damages should be given on the amount of the accrued interest.

The sureties in the supersedeas bond, it is true, are bound to pay the interest in case of affirmance, as well as the principal, and all legal cost and damages, but it seems to us that the proper meaning and construction of the Code as to damages is damages on the amount of the judgment at the time it was superseded.

The damages allowed partake of the nature of a penalty, and should not be allowed unless the law clearly authorizes it.

Judgment affirmed.