133 Ky. 773 | Ky. Ct. App. | 1909
Opinion op the court by
Affirming.
In the year 1895 the Drovers’ & Mechanics’ National Bank of Baltimore, Maryland, and others instituted an action in the Pike Circuit Court against A. B. Merritt and others, in which they sought a personal judgment against defendants for the amount oí the claim sued on, and to enforce the same as a lien on certain property in Pike county. At the July term, 1895, of that court it appears that judgment was rendered against defendants. All other questions were reserved for further adjudication. At the November term, 1895,the amounts adjudged plaintiffs at the July term were adjudged a lien upon certain real property located in Pike county, and it was ordered that a sufficiency of same be sold to satisfy the judgment. An appeal was prosecuted to this court, but no supersedeas was executed. On December 4, 1895, executions were issued upon the personal judgments to Letcher county, Ky., returnable the fourth Monday in January, 1896. On December 21, 1895, these executions •were levied upon certain coal and mineral rights and privileges in lands situated in Letcher county and belonging to the defendants in the execution. There-was no lien upon the Letcher county property; it affected only the property situated in Pike county. On January 6,1896, the sheriff of Letcher county sold the property levied on, and the plaintiffs became the pur
We deem it unnecessary to discuss the question of the validity of the deed made by the sheriff of Letcher county to appellants two days after the reversal of the judgment of the lower court by this, court. We shall confine ourselves to the discussion' of the effect of the order .of March 4, 1897. The doctrine is well settled in this state that, where the plaintiff purchases property under an execution issued upon a judgment subsequently reversed, the reversa! of the judgment does not have the effect of reinvesting the title in the execution defendant. Yocum v.
The only question remaining is whether or not the order of March 4, 1897, is void. It is attacked on two grounds' — fraud and want .of notice. The charge of fraud is not made out by the evidence.. The proof is
But is the order void for want of notice? It is first insisted that, under section 761, sub-sec. 2, Civ. Code Prac., notice of the filing of the mandate should have been given. It appears from the record that more than two terms of the Pike Circuit Court had intervened between the date of the judgment of this court and the filing of the mandate. That being the case, no notice was necessary. Baker v. Baker, &c., 87 Ky. 461, 9 S. W. 382, 10 R. 430; Lloyd, Trustee v. Matthews, 92 Ky. 300, 17 S. W. 795, 13 R. 537; Chestnut, &c. v. Russell, &c. (Ky.) 69 S. W. 965, 24 R. 704. But it is’ insisted that the order of March 4, 1897, is void for want of actual notice to appellants -or their counsel. As stated above, the record shows that the mandate itself was sent to the Pike Circuit Court by appellant’s attorney. That being the case, he should have anticipated that the chancellor would act upon the mandate by setting aside the personal judgment, and by either restoring the property,
Judgment affirmed.