| Ky. Ct. App. | Feb 1, 1924
Opinion of the Court by
Affirming.
This is the second appeal of this case; the first one is styled Caudill Coal Company v. Solner Mining Company, et al., and reported in 198 Ky. 243" court="Ky. Ct. App." date_filed="1923-03-13" href="https://app.midpage.ai/document/caudill-coal-co-v-solner-mining-co-7147860?utm_source=webapp" opinion_id="7147860">198 Ky. 243. In the opinion
The court overruled the motion of appellant, made after the return of the ease, to give it a preference, to the extent of its preferred claim as adjudged in the first opinion, as against any of the alleged creditors, except the Maynard Coal Company, upon the ground that none ofYhe others were parties to the first appeal and, consequently, they were not bound by the opinion rendered therein, and that their rights to share pro rata in the fund to be distributed were fixed by the original judgment of the trial court and which the first appeal did not disturb as to them because they were not parties thereto, and to reverse that ruling the present appeal is prosecuted, and it is contended on this hearing (1), that the judgment from which the first appeal was prosecuted was not a final one so far as the general creditors of the insolvent debtor are concerned, and (2), that if it was a final one from which an appeal could be prosecuted then the appellees here, who are the general creditors, were not necessary parties to the first appeal and the opinion therein is binding upon them.
As to the first contention reliance is had upon the cases of Bank of Kentucky v. Allen, 8 Ky. L. R. 36; Adkisson v. Dent, 88 Ky. 628" court="Ky. Ct. App." date_filed="1889-05-25" href="https://app.midpage.ai/document/adkisson-v-dent-7132188?utm_source=webapp" opinion_id="7132188">88 Ky. 628; Chorn v. Chorn, 98 Ky. 627" court="Ky. Ct. App." date_filed="1896-01-29" href="https://app.midpage.ai/document/chorn-v-chorns-administrator-7133312?utm_source=webapp" opinion_id="7133312">98 Ky. 627; Jacobs v. Jacobs’ Guardian, 23 Ky. L. R. 186; Saylor v. Arnett, idem 321; Reed v. Reed, 25 Ky. L. R. 2324; McClure ’s Admr. v. Anchor Roller Mills, etc., 30 Ky. L. R. 509; Harding v. Harding, 145 Ky. 315" court="Ky. Ct. App." date_filed="1911-11-10" href="https://app.midpage.ai/document/harding-v-harding-7139110?utm_source=webapp" opinion_id="7139110">145 Ky. 315, and other cases from this court dealing with similar questions and analogous facts. Those cases hold in substance that an order confirming a master commissioner’s report of claims, or a judgment fixing the amount of debts and naming thé perstíns entitled to them are neither of them final, but are only interlocutory, and of course subject to alteration or change until a final judgment is rendered, from which only an appeal may be prosecuted. It is stated in 2 R. C. L. 40, that a final judgment or decree is
In the case of Bondurant v. Apperson, 4 Met. 30" court="Ky. Ct. App." date_filed="1862-06-14" href="https://app.midpage.ai/document/bondurant-v-apperson-7383390?utm_source=webapp" opinion_id="7383390">4 Met. 30, in dealing with the question as to what was and what was not a final judgment, this court held that “It is certain, however, that a judgment can not be final .merely because it decides some question of law or fact relating even to final relief, nor merely because it decides what are the rights of the parties as to such relief. (Jameson v. Mosely, 4 Mon. 414; Phillips & Co. v. Alcorn, 4 J. J. Mar. 38; Craig v. McBride’s Heirs, 9 B. Mon. 9" court="Ky. Ct. App." date_filed="1848-12-08" href="https://app.midpage.ai/document/craig-v-mcbrides-heirs-7129099?utm_source=webapp" opinion_id="7129099">9 B. Mon. 9; Portwood v. Outon, 1 B. Mon. 149" court="Ky. Ct. App." date_filed="1840-12-19" href="https://app.midpage.ai/document/portwood-v-outon-7127980?utm_source=webapp" opinion_id="7127980">1 B. Mon. 149; Mitchell v. Cloyd, MS. Opin. February, 1854.) Those cases furnish various illustrations, proving that a judgment may decide every question of law and fact, and what are the rights of the parties to everything involved in a suit, without being final to any extent. In each of them the judgment was held to be not final, because it could not be enforced, to the extent of giving the final relief contemplated by it, without further action by the court. ’ ’ And in defining what was a final judgment, the opinion said: “that a judgment, to be final, must not merely decide that one of the parties is entitled to relief of a final character, but must give that relief by its own force, or be enforceable for that purpose without further action by the court or by process for contempt.”
The test therein announced for determining the finality of a judgment, is not only in accord with the definitions given by learned authors upon the subject, but it has been followed substantially by this and other courts without modification or qualification. Measuring the first judgment appealed from in this case by those tests, it is clearly manifest that it was a final one, since it not only fixed the rights of the parties but it also gave final relief and by its own force directed the satisfaction of those adjudged rights through and by the court’s commissioner, without any further necessary action on the part of the court. It, as we have seen, adjudged the amount to be distributed, the persons to whom it should be distributed, and their respective amounts upon which
If, however, we were incorrect in that conclusion, the appellant here did appeal from that judgment, and the question, as to whether it was a final one or not, was not raised at any time during the continuance of the appeal and a final disposition of it on its merits; and under the doctrine, as announced in the case of Farmers Bank & Trust Co. v. Stanley, 190 Ky. 762" court="Ky. Ct. App." date_filed="1921-02-18" href="https://app.midpage.ai/document/farmers-bank--trust-co-v-stanley-7146517?utm_source=webapp" opinion_id="7146517">190 Ky. 762, it is in no position to raise that question on this appeal.
It is again insisted, under contention (2), that under the opinions in the cases of Hamner, Receiver v. Boering, 191 Ky. 833" court="Ky. Ct. App." date_filed="1921-06-07" href="https://app.midpage.ai/document/hamner-v-boreing-7146684?utm_source=webapp" opinion_id="7146684">191 Ky. 833, and Smith v. Craft, 22 Ky. L. R. 643, the general creditors of the Solner Mining Company (appellees here), were not necessary parties to the original appeal and that they are therefore bound by the judgment therein rendered. An examination of those cases, however, will demonstrate the falsity of that contention. The questions involved in them were, whether certain transactions were preferential and operated as a general assignment for the benefit of creditors under our statute commonly known as “the act of 1856.” It was held that, under section 1912 of our present statutes, which is the remedial part of that act, all of the creditors of the alleged preferential transferer are not required to be made parties, and those who are not such are bound by the judgment in the proceedings which the statute allows to be brought by some for the benefit of all. It requires no argument to demonstrate that the questioned judgment
Not having been so, it necessarily follows that their rights are to be measured by the judgment as originally rendered, and it is our conclusion that the court did not err in rendering the last judgment from which this appeal is prosecuted, and it is .accordingly affirmed.