183 Ky. 576 | Ky. Ct. App. | 1919
Opinion of the Court by
Overruling petition of appellant, for a modification and extension of tlie opinion, herein, and overruling certain motions of appellee, except for a judgment, awarding damages on supersedeas bond, wbicb is sustained.
With reference to that portion of the opinion, in this case, which is sought to be modified and extended, it was not the design of the court to adjust the rights of the parties from mathematical calculations based upon the tables of mortality, but, the purpose was, in the event, the appellee desired to give up the house, to require the appellant to pay to her such a sum per month, thereafter, during her lifetime, and so long as she did not become the wife of another, as would reasonably provide her with a home, whether she lived a few or many years. If she does give up the house, she can not require the appellant to pay her the agreed present value of the house, in lieu of all monthly payments. The option is with him to make the monthly payments, or in lieu of them to pay to her
(1) The appellee filed in this court, a copy of a supersedeas bond, executed before the clerk of the circuit court, by the appellant, in pursuance to the provisions of chapter 2, of title xviii, of the Civil Code, and entered a motion for a judment awarding damages upon the affirmance of the judgment appealed from, as provided by section 764, Civil Code.
(2) The appellee, further moved the court, as follows :
(a) To extend its opinion and to indicate to the circuit court, the amount of a fee to be paid the attorneys of appellee, for their services upon the appeal, and to give proper directions in regard to same.
(b) To allow interest on the judment from July 1, 1918, or to reinstate the order, directing the payment of temporary alimony of- $250.00 per month, from July 1st, until October 1st. The last two motions, are overruled. With relation to the one, requesting this court to fix the amount of a fee for the services of the attorneys, for appellee, in this court, upon the appeal, and give proper directions to the circuit court in regard to it, it may be said, that is a matter about which the circuit court has never adjudicated, and, as a matter of course, could not appear upon the record before us. Further, this court, upon such a subject, is a court of review. While the appellee might be willing to have the questions adjudicated upon the record before us, we would not be at liberty to preclude any defense, which the appellant may have before the court of original jurisdiction, before which the •parties may present their cases. Hence, we make no intimation touching the subject.
As to the motion, requesting, that interest be adjudged upon the amount of the judgment from July 1st, instead of from October 1st, or else to order the payment of temporary alimony, in the sum of $250.00 per month,' from
(3) To determine, whether the motion to award damages upon the amount of the judgment superseded, upon its affirmance, should prevail, a statement of the facts, as they appear upon the record, is necessary. The judgment was rendered at the June term, 1918, of the Boyd circuit court, and appeal granted at that time. The transcript was filed in the clerk’s office of this court, on the 16th day of December, 1918. A supersedeas bond, was executed before the clerk of the circuit court by the appellant, on the 1st day of October, 1918, but, a supersedeas was not issued by the clerk, until the 17th day of February, 1919, and after the opinion of this court, was handed down on the 4th day of February, 1919. The appeal having been granted by the circuit court, the supersedeas bond was properly executed before and accepted by the clerk of that court. Section 749, subsection 1, Civil Code. The bond having been executed before the clerk of the court, which rendered the judgment, and before the expiration of the time for filing the record, in the office of the clerk of this court, pursuant to section 738, Civil Code, it was the duty of the clerk of the circuit court, to issue the supersedeas. Section 749, subsection 2, Civil Code.
An appeal does not stay proceedings upon a judgment, unless a supersedeas is issued, and hence, damages will not be awarded on the affirmance of a judgment, where a supersedeas bond has been executed, unless a supersedeas was also issued. Section 747, Civil Code; Hoskins v. Southern National Bank, 24 R. 2250; 73 S. W. 786; O. & N. R. R. v. Barclay, 102 Ky. 16; Reed v. Lauder, 5 Bush 598; Jones v. Green, 12 Bush 127; Asher v. Cornett, 32 R. 1173. The supersedeas, however, having been issued, by the clerk of the circuit court, after the filing of the appeal in this court, and after the opinion having been handed down, but, before the issuing of the
The appellant insists, that the judgment was not such a one, as, within the provisions of section 764, Civil Code, damages should be awarded, upon its affirmance, in this, that it was not such a judgment as could be enforced, by execution or other similar process. Before the provisions of that section will authorize the awarding of damages in the sum of ten per centum of the amount of the judgment superseded, it must appear, that it is a final personal judgment for the payment of money, and which is enforcible by execution or other similar process, there can be no doubt. Bell’s Trustee v. Lexington, 124 Ky. 463; Shields v. Hinkle, 19 K. L. R. 1363; Remubaum v. Atkinson, 105 Ky. 396; Leofold v. Furber, 84 Ky. 214; Worsham v. Lancaster, 104 Ky. 814; Stamps v. Beatty, Hardin, 345; Rowan v. Pope, 14 B. Mon. 102; Woods v. Rodman, 5 B. Mon. 45; Sumrall v. Reed, 2 Dana 65; Talbott v. Morton, 5 Litt. 326; Hall v. Dineen, 27 K. L. R. 886. Section 1650 Ky. Stats., provides, that “If a final judgment in personam be rendered in any court of record . . . for an ascertained sum of money, with interest and costs, or for either, a fieri facias may issue thereon. ’ ’ Section 1663 Ky. Stats., dealing with judgments in chancery, provides, that, “A final order or judgment for money, lands or other specific things, may be enforced by any appropriate writ of execution, allowable on a judgment at law, according to the nature of the case. ’ ’ That the judgment, in the instant case, was a personal- judgment and for the collection of money, there can be no doubt, in so far as it directed the recovery, by appellee, of the sum of $33,500.00, and her costs and attorneys’ fees. The amount, directed to be paid, as alimony, and which was superseded, was a sum fixed and certain. It was directed to be paid on or before October 1, 1918. It bore interest from that date, by the express terms of the judgment. The judgment granted to the appellant, the right to satisfy the alimony allowed, by paying the sum of $1,500.00 in cash, and the execution of five notes, for equal amounts, of the balance, with personal sureties, acceptable to appellee, or to discharge the judgment, by paying $1,500.00 in cash, and executing and delivering five notes, each for an equal amount of the remainder, to be secured by certain stocks. The two latter methods, for satisfaction of the judgment for alimony, were to be