68 Ky. 598 | Ky. Ct. App. | 1869
delivered tiie opinion of the court:
Appellee having recovered a judgment for money against appellant in the Bourbon circuit court, prayed and obtained an appeal, and executed before the clerk of said court an appeal bond; but did not sue out from said clerk’s office, or from the clerk of this court, a supersedeas. The judgment having been affirmed, ten per cent, damages was awarded by this court; whereupon a rule was sued out by appellant against appellee, to show cause why this judgment as to damages should not be set aside, because a supersedeas had never been sued o.ut. Said rule has been executed, but no response has been made. Appellant, however, filed the certificate of the Bourbon circuit clerk, that no supersedeas had ever been issued from his office. This rule presents the isolated question, whether, in the absence of a supersedeas, an appellee is entitled to damages on an affirmance, though an appeal bond be executed.
By section 888, Civil Code, it is provided, that “ where the appeal was granted by the court rendering the judgment or order, and the bond is executed within thirty days thereafter before the clerk of such court, the supersedeas shall be issued by such clerk; in all other cases it shall be issued by the clerk of the Court of Appeals.” '
Section 892 defines the supersedeas to be “ a written order, signed by the clerk, commanding the appellee, and all others, to stay proceedings on the judgment or order.”
And section 887 provides that a supersedeas shall not issue “ until the appellant shall cause to be executed, before the clerk of the cóurt which rendered the judgment or order, or the clerk of the Court of Appeals, by one or more sufficient sureties, to be approved by such clerk, a bond to the effect,” &c.
It is perfectly apparent from these several, sections that whilst the order of appeal and execution of an appeal bond are essential prerequisites to the obtainmont of a supersedeas, that neither one nor both constitutes it; therefore the.judgment is not superseded until the order of supersedeas from the proper clerk is issued; hence, ten per cent, damages cannot be awarded in the absence of this order constituting the supersedeas; for it is provided in section 904, Civil Code, that “upon an affirmance of a judgment., order, or. decree, for the payment of money, the collection of which, in whole or part, has been superseded, as provided' in this chapter, ten per centum damages on the amount superseded shall be awarded against the appellant.”
• Wherefore, the order awarding damages in this case, on the affirmance of the judgment below, is set aside for the want of a supersedeas, no authority being found in this court to award damages unless the judgment be actually superseded; for until that is done, there is no legal impediment to the plaintiff, in coercing his judgment by execution.