56 S.W.2d 722 | Ky. Ct. App. | 1933
Affirming.
A judgment was rendered in the Jefferson circuit court in favor of the Ford Elkhorn Coal Company against the Bituminous Casualty Exchange, for $654.03, with interest at 6 per cent. per annum from August 1, 1927, until paid, and $59.60 costs, subject to a credit of $48, paid December 7, 1929. An appeal to this court was granted in the judgment. The Bituminous Casualty Exchange as principal, with V.C. McDonald as surety, executed a supersedeas bond before the clerk of the circuit court, wherein they covenanted with the plaintiff that they would pay all costs and damage that might be adjudged against the appellant on an appeal; also satisfy and perform the judgment in the case if it should be affirmed, or any judgment or order which the court might render.
The Bituminous Casualty Exchange failed to file a transcript in the office of the clerk of this court, 20 days before the first day of the second term thereof next after the granting of the appeal by the circuit court; nor did it obtain from this court an extension of time in which to file it, or show cause for not filing it as required by section 738 of the Civil Code of Practice. Williams v. Board of Councilmen,
This action was filed in the Jefferson circuit court on the supersedeas bond to enforce the judgment for the debt, interest and costs, and the damages awarded by this court on the dismissal of the appeal. The Bituminous Casualty Exchange presented as its defense the allegation that after the dismissal of the appeal, an appeal had been granted by the clerk of this court, on its application, as provided for by section 734 of the Civil Code of Practice, and that it had executed another supersedeas bond before the clerk of this court as authorized by the Code in such cases. The circuit court sustained a demurrer to its answer and entered a judgment in conformity with the prayer of the petition. The Bituminous Casualty Exchange appeals.
It argues that after a judgment is superseded, no further steps can be taken under it, and therefore no judgment should have been rendered against it; it having alleged in its answer the judgment had been superseded. To sustain this insistence it presents Weber v. Tanner (Ky.)
Wherefore the judgment is affirmed.