200 S.W.2d 481 | Ky. Ct. App. | 1947
Affirming.
This appeal is the aftermath of a divorce case which reached this court and was decided January 29, 1946. Combs v. Combs,
It is argued that because the supersedeas bond stayed the collection of the fee allowed to plaintiff's attorney, she is entitled to 10 per cent. damages thereon. Section 764 of the Civil Code of Practice provides that upon the affirmance of a judgment for the payment of money, the collection of which has been suspended, 10 per cent. damages on the amount superseded shall be awarded against the appellant. In construing this section of the Code, we have consistently held that damages will not be awarded on costs adjudged in the lower court. Kelly v. Kelly,
"It is well settled that on the affirmance or dismissal of an appeal, 10 per cent. damages will not be allowed upon the costs adjudged the appellee by the lower court."
The fee allowed to the wife's attorney in a divorce action is part of the costs. Maher v. Maher,
Appellant further contends that she is entitled to a judgment against the surety on the supersedeas bond for $250, the fee allowed in the supplemental judgment in the divorce action for her attorney's services on the appeal. It is a firmly established rule that a fee allowed for an attorney's services on appeal does not constitute an element of damage in an action on the supersedeas bond. Dowling's Adm'x v. Walker,
Appellant finally contends that the court erred in refusing to adjudge that the surety on the bond is liable for the payment beyond March 9, 1946, of the $50 monthly *274
allowance for the benefit of the child. The correctness of so much of the judgment as required the surety to pay the installments falling due prior to the filing of the mandate in the Knox circuit court is questioned by the appellee Hammons, but he paid these sums with interest thereon and penalties, and has not cross-appealed. Consequently, that question is not presented, but, in passing, it may be noted that this court has held that pending appeal in a divorce case, the circuit court retains jurisdiction of all matters pertaining to the care and custody of the children of the parties. Duncan v. Burnett,
The judgment is affirmed.