Opinion
Decided February 23, 1926.
Appeal from Perry Circuit Court.
LEWIS LEWIS, JOE W. CRAFT and P.T. WHEELER for appellant.
FAULKNER, STANFILL FAULKNER for appellees.
Reversing.
On September 3, 1913, appellant, Frick Company, recovered judgment in the Perry circuit court against R.B. and J.C. Combs for $1,100.00, with interest and cost, to satisfy which it was adjudged that certain property be sold. An appeal was prosecuted to this court and the judgment was affirmed with damages, in an opinion which may be found in 162 Ky. 42. After the mandate had been filed in the lower court and to enforce the collection of the judgment, cost and damages, this action was instituted by appellant upon the supersedeas bond against the principals and their sureties, appellees, J.K.P. Turner, J.B. Eversole and C.W. Napier. For the sureties a defense was interposed based wholly upon the ground that no appeal was granted by the circuit court from the judgment appealed from; that the clerk of that court was without authority to take the supersedeas bond sued on herein; that the bond was void; and that their having signed it imposed upon them no liability. The trial court sustained that plea and directed a verdict to be returned for the sureties in the bond. Hence the appeal.
To sustain the trial court appellees insist that the only order of the Perry circuit court from which an appeal was granted by that court in the case of Frick Company v. Combs, etc., was that striking from the files of the record the answer and set-off which had been filed. The orders of the court can not be given that narrow construction. The two orders, that granting the judgment for $1,100.00, with interest and cost, and directing certain property to be sold to satisfy the same, and the order of the court striking the answer and set-off from the files of the record, must be read together. The question as to whether the appeal granted by the Perry circuit court was an appeal from the entire judgment rendered by the court in the action, or was merely an appeal from the order of that court striking the answer and set-off from the files, was determined adversely to appellant's contention upon the former appeal, as reference to the opinion, supra, will make clear. On the former appeal this court, considering the same orders and judgment which appellees insist must be construed to have granted an appeal only from the order striking the answer, concluded that an appeal was granted from the entire judgment, and on the merits concluded that it should be affirmed with damages. That question having once been determined herein is not open for further controversy.
It appears that appellees, as sureties, signed the supersedeas bond sued on herein by which they did covenant to and with appellant, Frick Company, that Robert B. and J.C. Combs would pay to it all cost and damages that might be adjudged against them on the appeal, and that they would satisfy and perform the judgment appealed from in case it should be affirmed and any judgment or order which this court might render or order to be rendered by the inferior court. They do not pretend that a supersedeas did not issue. Their sole defense is that no appeal was granted by the trial court and that, therefore, the clerk of the court was without authority to take the supersedeas bond which they executed. Their position as to that question being untenable, as above indicated, it was error for the trial court to peremptorily instruct the jury to find for appellees. On the other hand, a peremptory instruction should have been given for appellant; in fact, a demurrer should have been sustained to the answer.
Judgment reversed and cause remanded for further proceedings consistent herewith.