Smith v. Jones

11 S.W.2d 937, 226 Ky. 785, 1928 Ky. LEXIS 174

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 14, 1928
• Status: Published

Opinion

Opinion of the Court by

Judge Thomas—

Dismissing appeal.

The appellees and plaintiffs, F. M. Jones and J. G. Forester, sued G. F. Blackburn et al. in the Harlan.circuit court to recover .judgment against them for $1,413.32, the amount plaintiffs were compelled to pay as sureties for defendants. In the petition grounds of at tachment were alleged and one was obtained and it was delivered to the sheriff of the county for execution and he levied it on a lot of personal property composing a pressing outfit. Defendants executed a bond under the provisions of section 221 of the Civil Code of Practice, obligating those who signed it to perform whatever judgment might be rendered against defendants in the action, and the property upon which the attachment was levied was thereupon left in their custody. At the following regular October, 1925, term of the court the case was tried and plaintiffs recovered judgment for the amount they prayed in their petition and the attachment was sustained. They were also adjudged a lien on the attached property to satisfy their judgment, and the master commissioner of the court was directed to sell it and make his report at the next term of the court. Upon filing his report at that term the appellant, Smith, tendered his intervening petition in the cause and asked to be made a party thereto, and in it he averred that after the execution of the bond above mentioned, and on November 17, 1925, after the judgment of sale was rendered, he purchased the attached property from those who retained its possession following the execution of the bond referred to, and that he paid therefor the sum of $1,500. He prayed that a writ of possession in favor of plaintiffs (who had purchased the property at the sale, and which writ the clerk had issued without an order from the court so directing) be quashed and that he be adjudged the owner of the property. He, furthermore, and at the same time, filed his exceptions to the sale and asked that it be set aside, which motions, in the main, were based upon the same facts averred by him in his tendered intervening pleading. The court overruled all his motions and also his exceptions to the report of sale.

Thereafter, and at the same term of court, he entered motion that the court set aside its previous adverse rulings against him, and that motion was overruled. He then offered to execute a supersedeas bond before the clerk, who was one of the plaintiffs in the cause, and that officer declined to approve or accept it, after which appellant moved the court to require the clerk to approve and accept the bond, the solvency of which was not disputed, and that motion was overruled. The sale was confirmed, and-under the writ of possession the property was taken from appellant and delivered into the possession of plaintiffs, who, as. we have said, were the purchasers at the. sale, and from such adverse rulings appellant prosecutes this appeal.

If appellant had the right under section 29 of our Civil Code of. Practice to intervene in the cause, then the court erroneously made the rulings complained of, unless the motion of appellant to file his intervening pleading came too late, ánd which latter counsel for plaintiffs insist is true. In support of that insistence they rely on the cases of Brown v. Vancleave, 86 Ky. 381, 6 S. W. 25, 9 Ky. Law Rep. 593; Meadows v. Goff, 90 Ky. 540, 14 S. W. 535, 12 Ky. Law Rep. 495, and Combs v. Cardwell, 164 Ky. 542, 175 S. W. 1009, neither of which upon examination decide anything applicable to the facts of this case; but, on the contrary, when analyzed, they sustain the right of appellant to intervene at the particular stage of the proceeding that he offered to do so. Those cases go no further than to deny the right of a party to the litigation to amend his pleadings, or a stranger to intervene therein, after all of the questions and issues involved as between the original parties thereto have been finally adjudicated and there remains nothing to be done except ministerial duties, to be performed by ministerial officers, in carrying out such final directions of the court. Hence, if at the time appellant offered to intervene in this case the sale had been confirmed and the proceeds of it had been ordered distributed to those entitled thereto by a final judgment of the court and nothing remained to be done, except to carry out the directions contained in such judgment, by the ministerial officer who was directed to. do so, then the cases relied on by counsel would be applicable. . ,.

. On the other hand, section 29, supra, of the Civil Code of Practice, expressiy gives the right of a stranger to the litigation to intervene in the cause for the purpose of asserting his rights to the property involved, or its proceeds, and which he may do at any time‘“before payment of the proceéds to the pláintiff,” but which has been construed in the cases supra to mean after, the pror ceeds had been adjudged to him and ordered' to be so paid, and the proper officer of the court directed to dd so. In conformity with stich Code provisions we have steadfastly held thát the right of a stranger to intervene was not lost, if'he made application therefor \Uthin'''the time specified in our' Code provision, as so construed, giving him sneh right. Some of the cases so holding are Murphy v. Cochran, 80 Ky. 239; Heaverin v. Robinson, 21 S. W. 876, 15 Ky. Law Rep. 15, and others cited in the notes to the section of the Code, supra. The court was, therefore, in error, if it declined to permit appellant to intervene on the ground that his motion therefor was too late. '

The next question is: Did the averments of the tendered intervening pleading of appellant manifest such an interest in the involved property as to entitle him to assert his alleged right thereto in this action? He alleged therein the fact of the execution of the bond, supra, and that it operated to discharge the attachment and to release the attached property of any lien that might have been acquired by the attachment; that thereafter the property was turned over to the defendants in the action, who afterwards sold it to him for a valuable consideration, and that he thereby took it free, from any rights of plaintiffs, since after the execution of that bond they could look to no other security but it in satisfaction of whatever judgment they might eventually obtain, and all of which has been so determined by this court in an unbroken line of decisions, some of the many of which are Hazelrigg v. Donaldson, 2 Metc. 445; Taylor v. Taylor, 3 Bush, 118; Inman v. Stratton, 4 Bush, 445; Thompson v. Arnet, 64 S. W. 735, 23 Ky. Law Rep. 1082; Bell v. Western River Co., 3 Metc. 558; and Fidelity & Deposit Co. v. Helm, 217 Ky. 384, 289 S. W. 280. To the same effect is the text in 6 C. J. 335, sec. 693, which, upon the identical point says: “A bond . . . conditioned to perform the judgment which may be rendered, dissolves the attachment and discharges the property from'- the custody of the law, and after giving such bond the attachment defendant' can .Sell or dispose of the property without violating any legal obligations assumed to the parties concerned in the cause.” - In note 75 of that text; on page 336 of the cited volume, there are cases from practically every court of last resort in' almost every state of the. Union,- including those supra, together with others from this state. Those cases and - authorities not only sustain the legal principles to the extent already indicated,-but-they furthermore establish the doctrine -that, when Such a-bond is executed in attachment proceedings, the.property, levied, on is completely released.so as,.1.0 entirely destroy the jurisdiction of the rem and the consequent jurisdiction of the court to sell it. For the latter reason the fact that appéllant purchased the attached property in this case after the judgment sustaining the attachment had been rendered does not militate against his rights, because the court was without jurisdiction of the property, and its judgment, purporting to establish a lien upon it and ordering it sold in enforcement thereof, was coram non judice, and therefore void. From what has been said it is clear that the judgments and orders appealed from were each and all of them erroneous, and appellant would be entitled to a reversal thereof but for the reasons stated below.

After the appeal was briefed and submitted both plaintiffs and appellant filed their written motions in this court to dismiss it (as is provided by section 757 and 758 of the Civil Code) upon the ground that since the submission the parties had settled their controversies and the consideration therefor ($500 cash) had been paid to appellant. With the motions there was also filed a written receipt by appellant for the consideration paid him and he admits that it was done. Notwithstanding appellant’s motion and the receipt executed by him, he later appeared in this court and objected to the dismissal upon the ground that he was unduly and unlawfully procured to compromise his interests in the case and to execute the papers evidencing that fact. Undoubtedly, and which is approved by all courts and text-writers, an appellant may voluntarily dismiss his appeal at any time before final termination thereof, if the rights of no other party to the litigation would be adversely affected thereby. See the text in 4 C. J. 563, sec. 2376, and the many cases cited in the notes thereto.

It is equally well settled that, if only the rights of the appellant or appellants are involved in the appeal, he or they may settle the controversy with the appellee or appellees, and if such settlement is understandingly made, and under such circumstances as that it could be enforced in law, then the appellee by manifesting such facts to the appellate court (and which is provided for in this jurisdiction by sections 757 and 758;, supra, of the Civil Code), with a motion to dismiss the appeal, will be entitled to have that motion sustained. However, in such case it is competent for the appellant, or his associates, if more than one, to resist the motion so made by appellee upon any ground that would defeat the latter in enforcing the compromise settlement as between the parties. But, before such opposition to the motion will be heard, the consideration received for the settlement, furnishing the grounds of dismissal, must be returned by the appellant, since he may not retain it and at the same time resist the motion to dismiss the appeal based upon the settlement. ■See text in 4 C. J. 579, sec. 2387, and Lake v. Dredge, 158 Iowa, 725, 138 N. W. 869.

The requirement that appellant must return the consideration for the settlement of the matters involved in the litigation before resisting appellee’s motion to dismiss the appeal is in conformity with the well-settled principle of the law that, before one may repudiate or rescind his contract, he must return the consideration that he received under it. Appellant in this case, as we have seen, was paid $500 by appellees and under the rule stated, although he may have been fraudulently induced to make the settlement, he cannot take advantage of the alleged fraud or repudiate it, until he returns to appellees the amount they paid him.

At the same time that appellant filed his motion resisting the dismissal of the appeal his attorneys and his sureties on the note he executed to obtain' the money to buy the pressing outfit each filed pleadings in this court also resisting the motion to dismiss, thereby raising the question, whether a stranger to the record may appear for the first time in this court and by pleading his actual or alleged interest in the subject-matter of the litigation resist a motion to dismiss the appeal made by a party or parties of record on the ground that all involved questions were settled after it was prosecuted, as between all the parties of record at that time. Before answering that question it might be of benefit to remember that, “in the absence of a statute extending the right of review to persons other than parties who are aggrieved by a judgment, order, or decree, the general rule is that no one can appeal from a judgment, order, or decree . . . unless he was a party to the action or proceeding below, or to the judgment, order, or decree, or unless he is a legal representative of a party, or his privity of estate, title, or interest appears from the record.” 3 C. J. 616, sec. 466. More than three columns of cases are cited in note 55 to that text, including ■ those from this court of. Combs v. Combs, 144 Ky. 389, 138 S. W. 629; Jones v. Yantis (Ky.) 113 S. W. 111 (not elsewhere reported); Rout v. Monntjoy, 3 B. Mon. 300; and Stevens v. Stevens, 2 Dana 428. The “privity” mentioned in the excerpt means and includes only those upon whom the law casts that relationship, and does not include those who are privies only by contract, as is shown by the text in the same volume, p. 623, sec. 479. The case of Miller v. Wheeler, 147 Ky. 131, 143 S. W. 1028, does not militate against the principle of law last stated, since in that case the purchaser, who it was held might appeal, had become a party to the litigation in the court below by virtue of the.commissioner’s report filed in the action manifesting that fact, and which casé is but an illustration of many others in which we have held that a purchaser at a decretal sale becomes a party to the proceedings below when the sale to him is so reported. If, therefore, the attorneys of appellant in this case, or his sureties above mentioned, could not prosecute this appeal because they in no manner became parties in the court below, it would seem to naturally follow that they were not entitled to any voice in the appeal after it was brought by others to this court.

But, independently of any analogy that might be drawn from a consideration of those having the right to prosecute an appeal, the law appears to be well settled that no one who did not in some manner become a party; to the action in the court below, or who in some .legal way offered to become such, may resist a motion to dismiss an appeal after it has been taken to the-appellate court, as is shown by the text in 4 C. J. supra, 593, sec. 2405, wherein it is said, inter alia: “ Third persons whose interests are separable from those of the parties to the-appeal may not resist the motion when appellant sees fit to dismiss his appeal-or'appellee acquires the right to compel, its dismissal.” The text also makes the statement to the effect that one who might have been made a party defendant in the court below “may be heard in the appellate court to oppose a motion to dismiss ’ ’; but the cases cited in support of that text show that it applies only to one who moved to become a party in the court below, but whose motion was overruled, and includes one standing in the exact position of appellant in this case, but it does not include a stranger who never made any effort in the court below to become a party to the action. Also compare the .cases of Harks v. Doty, 13 Bush, 727, and Taliaferro v. Gray, 78 Ky. 196.

Two reasons are assigned for disallowing such stranger to the record to resist the motion to dismiss an •appeal, and they are: (1) That this court' is one of appellate jurisdiction only, except the. original jurisdiction conferred upon it by section 110 of the Constitution and which has no relevancy to a case like this; and (2) that such stranger is not bound by the judgment appealed from and can assert and obtain his rights in an independent action against the invaders of his rights, though themselves parties to the litigation, since, not being a party at the time the judgment was rendered, he is not bound by it. If such stranger could be heard for the purposes stated, in- disregard of reason 1, then this court would become a trial one for the purposes of determining the interests of the stranger in the subject-matter of litigation, but which the Parks case, supra, and others .from this court ¡hold may not be done. Besides, the summary determination in the appellate court on such applications might later prove to be erroneous in a final trial of the issues in a court of original jurisdiction; an illustration of which, as arising in this case, would be that the Harlan circuit court upon a return of this case might find, from the evidence heard at the final submission, that the objecting attorneys and sureties for appellant had either been satisfied; or that their claims were for some other reason not legally assertable against him, in which event the judgment appealed from would be undisturbed and the entire subsequent proceedings in the trial court would have been futile and to no effect.

The soundness of reason 2 is so apparent that it needs no authorities in its support, and under it the attorneys and appellants’ sureties may. yet assert their rights in appropriate actions in the proper court of original jurisdiction against appellees, or others who may have •legally wronged them.

' For the reasons stated,. the motion to dismiss the appeal is sustained, and it is dismissed.