October 20, 2012

U. S. Fidelity & Guaranty Co. v Citizens Nat'l Bank of Monticello, Wayne, 1911

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U. S. Fidelity & Guaranty Co. v Citizens National Bank of Monticello.

COURT OF APPEALS OF KENTUCKY

143 Ky. 699; 137 S.W. 240; 1911 Ky. LEXIS 494

May 18, 1911, Decided

PRIOR HISTORY:  [**1]  Appeal from Wayne Circuit Court. 

DISPOSITION: Motion sustained. 

COUNSEL: O. H. WADDLE & SON and HARRISON & HARRISON for appellant.

WM. MARSHALL BULLITT and KEITH L. BULLITT for appellee. 

JUDGES: CHIEF JUSTICE HOBSON. 

OPINION BY: HOBSON 

OPINION
 [*699]  OPINION OF THE COURT BY CHIEF JUSTICE HOBSON--On Motion to Dismiss Appeal With Damages.

On May 20th, 1910, appellee recovered judgment against appellant in the Wayne Circuit Court for $ 15,000.00. On July 20th, 1910, appellant executed a supersedeas bond but the clerk then issued no supersedeas. The time for filing the record in this court expired December 13, 1910, and the record was not filed and the time was not extended. On February 11, 1911, appellant had an appeal granted by this Court but obtained no supersedeas. On April 18, 1911, the Clerk of the Wayne Circuit Court issued a supersedeas, on appellee's counsel calling his attention to the fact that he had not issued it and it was its duty to issue it then. On April 21st, appellant obtained a supersedeas from the Clerk of this court. Appellee has entered a motion to dismiss the appeal granted by the Circuit Court with damages.

The case of L. & N. R. R. Co. v. Lucas', 120 Ky. 359, 86 S.W. 682, [**2]  controls. That case is similar to this except that there the second appeal was taken after the supersedeas was issued  [*700]  by the Circuit Clerk. But that circumstance is not material. The appeal was still pending and the Clerk was authorized to issue the supersedeas as no supersedeas had been obtained from the Clerk of this Court. It is true appellant had abandoned that appeal but it had not been dismissed. Appellee was not entitled to execution on the judgment after the supersedeas issued.

Motion sustained.

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