American Accident Co. v. Reigart

92 Ky. 142 | Ky. Ct. App. | 1891

CHIEF JUSTICE HOLT

delivered the opinion op the court.

This is a motion to dismiss an appeal' with ten per cent, damages, upon the ground that it was improperly granted by the lower court.

The order allowing the appeal was made upon a motion entered at a term subsequent to the judgment, and to the order overruling the motion for a new trial. The Civil Code, section 734, provides, “ that an appeal shall be granted as a matter of right by the court rendering the judgment, on motion made during the term at lohich it is rendered, or thereafter by the clerk of this court.” Section 757 gives the right to the appellee when it appears from the record that an appeal has been “ improperly granted” to move to dismiss it; and section 764 provides, “ 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.the dismissal of an appeal from a judgment for the payment of money, the collection of which in whole or part has been superseded, as provided in chapter 2 of this title, ten per cent, damages on the amount superseded shall be ‘ awarded against the appellant.’ ” The appellee contends that the appeal was “ improperly granted,” and, therefore, by the terms of the statute it must not only be dismissed, but the judgment having been for money, and a supersedeas bond executed and supersedeas issued, the allowance of the damages necessarily follows the dismissal. Undoubtedly, the court had no right to entertain the motion or grant the appeal at a term of court subsequent to the judgment and the overruling of the motion for a new, trial. This is conceded by the appellant, but it insists that the order allowing it was void, and that, therefore, the execution of the supersedeas bond before, and the issual of the supersedeas by, the clerk of the lower court were void acts, which did not prevent the enforcement of the judgment.

The order granting the appeal was a nullity. (City of Bowling Green v. Elrod, 14 Bush, 216; Wright, &c., v. Woolfolk, 14 Bush, 308.)

The Code expressly declares that after the expiration of the term at which the judgment is rendered, an appeal must be granted by the clerk of this court. The lower court has no longer any power in the matter. For any such purpose there is no cause pending before it, and if it assumes to act, it is coram non judice. Its order is, in legal effect, no oi’der. Being void, it has no legal existence. Freeman in his work on Judgments, section 117, says: “A void judgment is, in legal effect, no judgment. By it no rights are divested; from it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it, and all claims flowing out of it are void.” As the order was absolutely void, it can not properly be said that an appeal was “improperly granted.” None was granted either properly or. improperly. It is the same as if no order had been made. This being so, there is no appeal pending to be dismissed.

It can not be correctly said that the party having obtained the void order, and having acted under it by executing a supersedeas bond before the clerk, is estopped to deny its validity. In the absence of an order allowing an appeal, no bond could be taken or supersedeas issued as provided in the statute. The order being void, there was none. It was not the act of the party, but of the court; and a. judgment or order of court to serve as an estoppel must proceed from one having jurisdiction. If a party sues in a court, and the suit goes to judgment against him, yet if the court had no jurisdiction, its action is wholly void, and the party may still resort to the proper tribunal. (Freeman on Judgments, section 264.)

The order purporting to grant the appeal was not binding upon the other party, and being altogether void was ineffectual to work an estoppel or for any purpose whatever. There was not even colorable authority to make it. It was expressly forbidden by the statute, and had no more validity than if it-.had been made by a private individual. Whether the 'boud is valid as a. common law obligation is not a question before us, and what has been ■said must be regarded as relating-only to whether any appeal is pending which may be dismissed, and whether any valid statutory bond with supersedeas ever existed authorizing the allowance of damages.

In our opinion there is no appeal pending, and the motion is, therefore, overruled. ; “