U. S. Fidelity & Guaranty Co. v. Citizens National Bank of Monticello

137 S.W. 240, 143 Ky. 699, 1911 Ky. LEXIS 494

• Court: Court of Appeals of Kentucky
• Decided: May 18, 1911
• Status: Published

Opinion

Opinion op the Couht by

Chire Justice Hobson

On Motion to Dismiss Appeal With Damages.

On May 20th, 1910, appellee recovered judgment against appellant in the Wayne Circuit Court for $15,-000.00. On July 20th, 1910, appellant executed a superse-deas bond but the clerk then issued no supersedeas. The time for filing the record in this court expired December 13,1910, and! the record was not filed and'the time was not extended. On February 11,1911, appellant had an appeal granted by this Court but obtained no supersedeas. On April 18, 1911, the Clerk of the Wayne Circuit Court issued a supersedeas, on appellee's counsel-calling his attention to the fact that he had not issued it and it was its duty to issue it then. On April 21st, appellant obtained a supersedeas from the Clerk of this court. Appellee has entered a motion to dismiss Ithe appeal granted by the ’Circuit Court with damages.

The case of L. & N. R. R. Co. v. Lucas, 120 Ky., 359, controls. That ease is similar to this except that 'there the second appeal was taken after the supersedeas was issued by the Circuit Clerk. But that circumstance is not material. The appeal was still pending and the Clerk was authorized to issue the supersedeas as no superse-deas had been obtained from the Clerk of this Court. It is 'true appellant had abandoned that appeal but it bad ■not been dismissed. Appellee was not entitled to execution on the judgment after the supersedeas issued.

'Motion sustained.