105 Ky. 396 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opinion oe the court.
By the judgment of the circuit court it was adjudged that Atkinson & Co. were the owners of certain described property then in possession of the defendant, A. EL Rennebaum, and “that said property be by the said Rennebaum returned to the plaintiffs, if a return can be had; if not to be had, then the court adjudges that the plaintiffs recover of the defendant, A. H, Rennebaum, the sum of $800, the value of said property as found by the jury. The court further adjudges that the plaintiffs recover of the defendant, A. EL Rennebaum, the sum of $100 in damages.” The judgment was superseded, and on appeal to this court was affirmed, with damages. [45 S. TV., 874], On filing the mandate in the circuit court, an execution was ordered on the original judgment. The execution was returned, with the following indorsement: “After making diligent search, the property named herein can not be found as a whole, the. defendant, A. H. Rennebaum, stating' that a part of the property was in Knoxville, Tennessee; hence no delivery can be made of said property. Nor can any property be found in Bell county belonging to the defendant, out of which to make the sum of $900.00 and interest, or any part of same.” Thereafter a summons was issued against Rennebaum to show cause why judgment should not be rendered for $90 damages on the judgment superseded, and judgment was accordingly rendered for said sum, but, at the same term, on motion, was set aside, and in lieu thereof a judgment was rendered for $10, “that being ten per cent, of the $100
We have reached the conclusion that the judgment superseded was not merely a judgment for personal property, and $100 damages for its detention, but was in the alternative,— a judgment for the payment of $900 in the event the property could not be returned. Eight hundred dollars of this amount could have been discharged by the return of the property; and in that event no damages would have been awarded upon that part of the judgment; but, it appearing from the return of the execution that the property could not be restored, the judgment became a judgment solely for the payment of $900, the collection of which had been superseded. We
Rehearing
Response to petition eoe' bei-iearing by
Since the opinion herein was filed, the circuit judge has responded to the motion for a rule against him.
The case of Stamps v.Beaty, [Hardin, 337],does not reach the question presented in this case, as the procedure in that case was by motion for a judgment in the court of appeals, upon a state of facts which did not entitle the party moving to the relief sought.
TVe are of opinion that, while the judgment of affirmance could have been satisfied by the surrender of the machinery and the payment of $100 damages> and costs, nevertheless, upon its appearing by the return of the execution that the property could not be returned, the judgment became a money judgment, - and the execution itself was an execution for the full amount thereof, authorizing levy and sale to collect it. Being such a judgment as authorized a levy upon and sale of property for the full amount of the value of the property detained, it became a money judgment for that amount. The stipulation of the bond, under section 718 of the Code, that the appellant shall pay to the appellee all rents or hire of the property during the pendency of the appeal, would seem to apply to a case where the return of the property was accomplished by the writ, and not to a case where, such return of the property proving impossible, the judg