120 Ky. 483 | Ky. Ct. App. | 1905
Response to-Motion by
The judgment appealed from herein, which was-affirmed, directs the master commissioner to pay to Ellen Dineen the sum of $620.72,' the balance found due her, out of the funds in his hands. Appellant superseded the judgment, and the clerk of this court, in entering the order of affirmance, so entered it as to give appellee ten per cent, damages upon the amount superseded. Appellant has entered a motion to set aside this part of the order. Sec. 764 of the Civil Code of Practice provides: “Upon the affirmance of, or the dismissal of an appeal from, a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in chapter two of this title, ten per cent, damages on the amount superseded shall be awarded against the appellant.” In discussing the meaning of this section this court, in Worsham v. Lancaster, 104 Ky., 814, 20 Ky. Law Rep., 969, 48 S. W., 411, said: “It has been repeatedly held that damages could not be awarded upon the supersedeas of a judgment directing a sale of property to satisfy a lien, unless there was a personal judgment for the amount of the lien, which was also: superseded. (Talbot v. Morton, 5 Litt., 326; Sumrall v. Reid, 2 Dana, 65; Woods v. Roman, 5 B. Mon., 145; Rowan v. Pope, 14 B. Mon.,
The motion is therefore sustained.