October 10, 2012

United States Fidelity & Guaranty Co. v. Herzig, Laurel, 1910





124 S.W. 279; 1910 Ky. LEXIS 764

January 7, 1910, Decided

Appeal from Circuit Court, Laurel County.

Action by A. Herzig against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals.

DISPOSITION: Reversed and remanded.

COUNSEL: W. L. Brown, Eli H. Brown, Jr., and Brown & Nuckols, for appellant.

Sam C. Harding and Greene, Van Winkle & Schoolfield, for appellee.




 [*279]  HOBSON, J. M. A. Miller brought a suit in the Laurel circuit court to enjoin A. Herzig, Cy Jones, and Green Jones from cutting the timber on a certain tract of land which she claimed that she owned. An injunction was obtained, and she executed bond with the United States Fidelity & Guaranty Company as provided by law. On the trial of the action in the circuit court her petition was dismissed and the injunction was dissolved. She prosecuted an appeal to this court without supersedeas. Thereupon Cy Jones and Green Jones, who claimed the timber on a certain part of the tract, brought an action on the injunction bond to recover the damages which they had sustained by reason of the injunction; and A. Herzig, who claimed the timber on another part of the tract, brought a similar action on the injunction bond to recover the damages which he had sustained by  [**2] reason of the injunction. When these suits were brought, M. A. Miller executed a supersedeas bond and took out a supersedeas from the clerk of this court. The defendant then amended its answer in the suits on the injunction bond pleading the supersedeas in bar of the further prosecution of those actions until the termination of the appeal. The court sustained a demurrer to this pleading in both cases. The suit brought by Cy and Green Jones came on for trial, resulting in a judgment in favor of Jones in the sum of $425. The defendant prosecuted an appeal from that judgment to this court. Reversing the judgment, and holding that the amended answer setting up the supersedeas was good, this court said: "In Gardner v. Continental Insurance Co. [101 S. W. 911], 31 Ky. Law Rep. 69, it was held by this court that a supersedeas suspends the judgment, but does not annul it or undo what is already done. It has no retroactive effect; whatever is done under the judgment while it is superseded is done without authority from the judgment, as it is then powerless. Other authorities are collected in that opinion. See, also: Durham v. Strait, 119 Ky. 222 [83 S. W. 581, 26 Ky. Law Rep. 1147]; 2 Cyc.  [**3] 910. In Johnson v. Williams, 82 Ky. 45, it was held that, after the judgment was superseded, the plaintiff could not bring an action upon the judgment and take out an attachment against the defendant's property. As the judgment had not been superseded at the time this action was brought, it was properly instituted; but the subsequent supersedeas took away from the judgment all efficacy while the supersedeas remained in force, and the action should have been continued until the appeal was determined in this court, or the supersedeas was discharged. As the supersedeas does not undo what has been done, where it is given pending an action, it does not operate to abate the action, for this might seriously prejudice the plaintiff where he had obtained a lien by his action, or where he had the parties before the court and might be unable, in a second action, to get his process served. But the condition of the bond is that the surety will pay the defendant such damages as he may sustain by reason of the injunction, if it is finally decided that the injunction ought not to have been granted. When the judgment dissolving the injunction is superseded, it has not been finally determined that the  [**4] injunction ought not to have been granted, for that is the question to be determined on the appeal." United States Fidelity & Guaranty Co. v. Jones, 111 S. W. 298, 33 Ky. Law Rep. 737.

While that case was pending in this court, the suit of A. Herzig on the injunction bond came on for trial, and a recovery was had in favor of the plaintiff in the sum of $540. An appeal was prayed, and time was given until the second day of the next term to file a bill of exceptions. The bill of exceptions, however, was not filed until the seventh day of the term, and as it was not filed within the time allowed, and the time had not been extended, it cannot be considered on the appeal. But although the evidence heard on the trial is not before us, the judgment must be reversed because the pleadings do not warrant it. As was held in the Jones Case, the defendant in the injunction suit has no cause of action upon the injunction bond until it is finally decided that the injunction was improperly granted. At the time this case was tried it had not been finally decided that the injunction was improperly granted. It is true a judgment to that effect had been rendered in the circuit court; but that  [*280]  judgment  [**5] had been superseded. A supersedeas suspends the judgment, and it cannot be relied on as authority for any action so long as it is superseded. There being no judgment in force determining that the injunction was improperly granted, the plaintiff in this case at the time of the trial had no cause of action on the injunction bond. After the trial of this case, this court decided the original action brought, by M. A. Miller to enjoin the cutting of the timber, and held that she owned the land, reversing the judgment of the circuit court, and directing that the injunction should be perpetuated.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

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