Elizabethtown, Railroad v. Ashland, Street Railway Co.

94 Ky. 478 | Ky. Ct. App. | 1893

JUDGE HAZELRIGG

delivered the orriaoir of the court.

The appellant, desiring to prevent the appellee from crossing its track at grade at a point south-east of Ashland, Kentucky, on November 2, 1892, filed its petition in the Boyd Circuit Court, and obtained an injunction appropriate for the purpose sought. After filing its answer and counter-claim, and giving notice of motion to dissolve the injunction, the appellee filed a general demurrer to the petition. It was sustained, as was also the motion to dissolve. The plaintiff declining to amend or further plead, its petition was ■dismissed, and a judgment for the costs of thp action was rendered against it. From this judgment the plaintiff was granted an appeal to this court, where it is still pending. It executed in the office of the lower court a supersedeas bond, the force and effect of which on the order of injunction theretofore granted is the .sole question on the motion now under consideration. The appellee, contending that the injunction was no longer in force, proceeded to construct its line of street railway across the track of the appellant at the point where it had been prohibited from building its line, doing its. work in the night, and without the knowledge or consent of the appellant; hence this proceeding to punish the appellee for contempt. Therefore, as has been said, the question is as to the legal effect ■of the execution of the supersedeas bond with respect to the injunction.

In the case of Smith v. Telegraph Co., 83 Ky., 270, the precise question now under consideration was involved. It was held that when, on final hearing, an injunction has been dissolved, the execution of a supersedeas bond by the plaintiff and the service of an order of supersedeas leaves the injunction in full force, and the defendant is guilty of contempt if he disregards it. This doctrine was approved in the case of Ky. & Ind. Bridge Co. v. Krieger, 91 Ky., 625, and may be regarded as the well-settled rule in this State. Whether, therefore, the injunction be perpetuated or dissolved when the proceeding on the judgment is stayed by the execution of a supersedeas bond, as provided by the express language of the Civil Code (section 752), defining the supersedeas, the judgment itself, upon authority quoted, is suspended or stayed, and the parties stand as if it had not been rendered. The execution of the supersedeas bond and service of the supersedeas may be regarded as operating retroactively on the judgment rendered, rather than as reviving the dissolved injunction. It effects, therefore, not merely to stay proceeding on the judgment, but to suspend the judgment itself. Mr. High is thus quoted as announcing a contrary doctrine: “An appeal, being merely the act of the party, can not of itself affect the validity of the order of the court, nor can it give new life and force to an injunction which the court has decreed no longer to exist. It follows, therefore, that an appeal from a decree dissolving an injunction can not have the effect of reviving the injunction, and of continuing in force, by the mere act of the party appealing, a judicial order which has (been set aside.” 2 High, Inj., section 1709. Apparently, the learned author is considering the effect of an appeal merely on the order of injunction, and not the stay or suspension provided for by statutory regulation, such as we have seen exists in Kentucky. His language,, “nor can it give new life and force to an injunction which the court has decreed no longer to exist,” is-certainly not applicable to a case where the very judgment which decrees “an injunction no longer to exist” is stayed or suspended by statutory regulation. The mere appeal of which the author wrote doubtless-stayed future proceedings in execution of-the judgment, but we must give broader effect to the stay provided for in our Code, and hold that the entire-force of the judgment is stayed and rendered temporarily nugatory by the execution and service of the supersedeas, thus leaving the injunction where it was, before the rendition of the suspended judgment.

It is contended, however, that the injunction was dissolved pendente lite, and the supersedeas issued on an interlocutory judgment; that, while final in form, the judgment was not so in fact. As we have seen, the defendant filed an answer and counter-claim.. It is claimed that “the cardinal fact of plaintiff’s petition was the impracticability of joint occupancy at. the point of the proposed intersection, and the cardinal fact of the counter-claim was the converse of this averment;” that, therefore, the counter-claim not-being disposed of by the judgment, the case to that extent is still pending, and the order sustaining the demurrer and dismissing the petition, with costs, is not a final order; that the supersedeas, therefore, was-issued imprudently, and is void; hence has no efficacy towards staying the judgment or reviving the injunction. The bare statement of this contention— and we have made it substantially in the language of the learned counsel for the appellee — carries with it its own answer. If the cardinal facts of the so-called “counter-claim” were the converse of the cardinal facts of the plaintiff’s petition, the pleading, which was in name a “counter-claim,” was in fact merely an “answer.” Certain it is that the dismissal of the petition disposed of all the issues in the case, and was, therefore, final. It does not occur to us, as is feared by counsel, that the issues were segregated, or that there is danger that they may 'not find their way together again.

It is said, however, that as the judgment of the dismissal and dissolution gave the plaintiff leave to apply for a reinstatement of the injunction, and continued it in force for twenty days after its rendition, the remedy was by such application, and not by the execution of the supersedeas bond. It seems clear to us that such a remedy was not open to the plaintiff. In Pendergest v. Heekin, 94 Ky., 384, it was distinctly held that when, on final judgment, an injunction is dissolved, the right to apply for reinstatement does not exist, but that the only remedy is by an appeal. But, say counsel for the appellee, the plaintiff is about to construct an additional track at the point of the proposed intersection, thus so changing the situation that the appellee may not be able to enforce its judgment after it shall have obtained it. It seems to us, however, that, while this may be a matter for future inquiry and regulation, it affords no justification for appellee’s plain violation of the order of injunction. As to the appellee company and respondents Ringo, Wellman and Hughes, the rule is made absolute, and dismissed as to the other respondents. The only process of purging the contempt is to remove the obnoxious track placed at the point of intersection on the night of the 10th of May, 1893, which is now directed to be done by July 1st, next.