190 Ky. 762 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming on the original appeal and reversing in part on the cross appeal.
The appellant, Farmers Bank and Trust Company, was the administrator with the will annexed of Mrs. Fannie S. McAllister, who died a resident of Henderson county. It filed suit in its individual capacity against itself as personal representative, and against II. M. Stanley, on three notes aggregating $1,700.00 which had been jointly executed to it by its decedent and H. M. Stanley. The latter filed answer, making it a counterclaim and set-off, in which he charged plaintiff as the personal repre
It is doubtful whether ground (1) urgied for a reversal is properly before us, since the exceptions filed to the commissioner’s report, upon which the judgment appealed from was rendered, do not include the particular error complained of. We have concluded, however, to dispose of the questions raised, as briefly as possible. It is insisted that the order of February 23, 1917 (the one affirmed in 186 Ky. 836), was not a final order from which an appeal corüd be prosecuted and not being so its affirmance by this court did not change its legal effect or render it conclusive upon the parties or the court. That order only purported to charge the trust company with a particular item to be accounted for by it on final distribution. That such order is not a final one from which an appeal may be prosecuted there can be no question. It has been expressly so held by this court in the cases of Adkisson v. Dent, 88 Ky. 628; Paul v. Wetlauf, 24 Ky. L. R., 1480; McClure’s Admr. v. Anchor Roller Mills, 30 Ky. L. R., 509, 99 S. W. R., 221; Vandever’s Admr. v. Richart, 5 Ky. L. R., 582; Eubank v. Eubank, 7 Ky. L. R., 294; Skillman v. Frost, 4 Ky. L. R., 621; Salyer v. Arnett, 23 Ky. L. R., 321, and Wooley v. Louisville, 23 Ky. L. R., 100.
That no appeal may be prosecuted to this court, except from final orders, is too well settled to require reference to the cases, and should an appeal, be prosecuted from an interlocutory order it would be promptly dismissed upon motion, or without motion, if the attention of the court should be directed to it. It is furthermore probable that such an appeal, while pending and undisposed of by the appellate court, would not suspend proceedings in the trial court or in any manner affect its authority to proceed with the case as though no appeal was pending. An altogether different result, however, follows the determination of the case on the appeal, and especially so if the judgment is affirmed. In that case the question as to the finality of the judgment appealed from becomes conclusive and the parties may not thereafter question the jurisdiction of the appellate court to entertain and. dispose of the appeal, and undoubtedly so, after the expiration of the time for filing a petition for rehearing. This consequence, following the disposition of an appeal from an order which'was not final, is sustained by the following opinions and texts, with none to the contrary so far
In the Washington Bridge Company case, from the United State Supreme Court, and in the Grand Central Mining Company-case, the identical question here presented was involved and each of those courts held that after an appellate court had assumed jurisdiction from a non-appealaible order (because it was not final), its opinion upon that appeal was conclusive upon the parties as to all questions necessarily determined, including jurisdictional ones, in a subsequent appeal from a final order in the same case. This general rule as applied by the courts and laid down by text writers is thus stated in R. O. L., referred to: ‘ ‘ The decision of the prior appeal is conclusive on the second appeal both as to the jurisdiction of the trial court and as to that of the appellate court on the prior appeal. On the second appeal the decision of the appellate court, arising* merely from its assuming jurisdiction of the appeal, is conslusive that the order appealed from was appealable and that the court had jurisdiction of the appeal; and, as has been said, to permit afterwards, upon an appeal from proceedings upon the mandate of the appellate court, a suggestion of the want of jurisdiction in the appellate court upon the first ■ appeal, as a sufficient causeufor re-examining the judgment, would certainly be a novelty in practice.” Indeed it is difficult for us to see, in the light of the rule governing appellate practice, how an opposite view could be upheld. It is fundamental with us (a rule which universally prevails with appellate courts) that an opinion on appeal becomes the law of the case in subsequent trials and subsequent appeals, whether the first opinion was right or wrong, provided, the point involved was expressly or by necessary implication determined upon its merits upon the first appéal. Applying that rule to the instant case it was necessarily determined in the opinion in 186 Ky.
We are furthermore convinced that the court did not err in adjudging interest on the $4,000.00, as complained of in ground (2) urged against the judgment. The former opinions of this court, as we have seen, fixed indisputably the amount for which the administrator should be charged. Nothing back of that may be looked to by us in reviewing the error now under consideration. Those opinions also held that appellant was grossly negligent in not recovering the brooch, or its value, which could have been done as pointed out in those opinions. Our statute (section 3859) says: “A personal representative, after the expiration of two years from the time he qualified, shall be charged with interest on the surplus assets in his hands from that period, and before the expiration of two years shall be charged with all interest realized on assets.” Construing that section, this court in the cases of Steele v. Louis, 32 Ky. L. R. 439, and Howe v. Winn, 150 Ky. 667, held that the administrator was not chargeable with interest on assets of the estate for two years after his qualification, except such as he actually or could have, by the exercise of ordinary care, realized, and that after that time he is prima facie chargeable with interest “and the burden is on him to show that by reason of circumstances beyond his control he was unable, in the exercise of ordinary care, to earn interest on the fund.” (Howe case). In the Steele case the court said: “The statutes require administrators to be charged with interest after two years, on any balance remaining* in their hands. There are cases in which administrators should not be charged with interest on such a balance, but the burden rests upon the administrator to show a state of fact to relieve himself from this charge.” Other cases found in the notes to the section support those referred to. In this case, assuming that the administrator was rightfully charged with the $4,000.00 (as we have seen must be done), it has held that sum since February 23, 1917, the day when the commissioner’s report charging it therewith was confirmed. The decedent died in April, 1914, and the appointment of appellant as her representative was made in November following. From the time of its appointment it knew of the existence of the brooch and of the contention made that it was an asset of the estate. It chose to take no action in the matter and, in the mean
In disposing of ground (3) relied on for a reversal we find ourselves in the same embarrassed situation as confronted us iñ disposing of ground (1). It may be assumed that this court erred on the former appeal in awarding damages and directing their collection in its mandate, but its judgment in that respect can not be considered as void, but at most as only*.erroneous. Appellant could easily have corrected the judgment in this particular .at any time within thirty days after the issual of the mandate and, perhaps, at any time during that term of court. It did not do so, and the trial court was directed to render a judgment for the ten per cent, damages. It had no other alternative but to obey the mandate of this court and its action in doing so is neither void nor erroneous. If, as insisted, the order directing damages made in this court on the former appeal was a clerical misprision it could not then be corrected on this appeal, since such errors must be corrected by the court on motion made in the particular case or appeal, in which the error was committed.
As before intimated, under the peculiar facts of this case, and the harsh results which the events following the judgment have created, we have been led to give tó this appeal more research and study than is ordinarily done, in the hope that we might find some consistent way to relieve appellant from accounting for any more than the demonstrated value of the brooch; but we have been
In the judgment appealed from there was left in the administrator’s hands, after the payment of all claims, the sum of $363.57, which the court ordered to be distributed equally among the three children of the decedent. Appellee H. M. Stanley, one of the children, in his cross appeal complains of that action of the court and contends, as he did below, that that balance should he paid to him in partial settlement of attorney’s fees heretofore paid by him in all of the litigation seeking to charge the administrator with the value of the brooch, as was finally done. The commissioner reported that appellee had paid $500.-00 individually to attorneys in prosecuting the litigation for the benefit of the estate, and that he should receive the balance of $363.57. The court declined to confirm the report in this particular and ordered the fund distributed as stated. In this we think the court erred. It is the settled practice, frequently upheld by this court, to allow a litigant attorney’s fees in the settlement of estates when the services of the attorney benefited the estate by bringing funds into it, or in defeating claims against it. In conformity with that rule appellee should be paid the balance of the funds for which he contends, and which, as we have seen, only partially repays him for a reasonable attorney’s fee.
Wherefore the judgment is affirmed on the original appeal, and reversed on the cross appeal to the extent indicated, with directions for the court to modify the judgment as herein directed.