Opinion
Decided May 21, 1926.
Appeal from Boyd Circuit Court.
JOHN T. DIEDERICH for appellant.
J.F. STEWART and W.D. O'NEAL for appellees.
Overruling motion to award damages.
Appellees recovered judgment in the Boyd circuit court on December 15, 1923, against appellant, city of Ashland for $1,331.71, with interest from July 24, 1919, and costs, to which it objected and excepted and prayed an appeal to this court, which was granted. On June 24, 1924, it superseded the judgment, and on the same day the clerk of the Boyd circuit court issued a supersedeas thereon. The transcript of the record, including a copy of the judgment, was filed in this court by the city on December 12, 1925, and an appeal was granted by the clerk of this court, but no supersedeas bond was ever executed before the clerk of this court. The case being duly submitted, the judgment against the city was affirmed on April 20, 1926, and appellees have entered motion for 10% damages thereon, which may be done at any time after affirmance and before mandate is due. C. O. Railroad Company v. Kelley's Admrx., 161 Ky. 660. But in order to entitle appellees to a judgment for damages on the supersedeas bond it must be one that the clerk before whom it was executed had the right to take at the time he did so. The right to prosecute the appeal granted by the trial court expired in this case twenty days before the convening of the April, 1924, term of this court. Section 738 of the Civil Code and cases cited in the notes thereto. Both at the time the clerk of the Boyd circuit court took the bond and issued the supersedeas thereon, and at the time of the filing of the transcript in this court, the right to prosecute the appeal on the order granting it by the trial court had long since expired and the only appeal that could thereafter be granted was one by the clerk of this court, which practice was adopted and pursued in this case.
The time for the prosecution of the appeal under the order granting it by the trial court having expired at the time the bond was taken by the clerk of that court, it was invalid for any purpose and did not operate to stay proceedings on the judgment. When the time to prosecute that appeal expired and no appeal had been taken the situation was the same as if none had been granted, and a bond thereafter taken by the clerk of the trial court could have no greater effect than one taken by him when no appeal was granted by the trial court. See cases of City of Louisville v. Muldoon, 19 K. L. R. 1386; Torbitt and Castleman v. Middlesboro Grocery Co., 147 Ky. 343, and L. N. Railroad Company v. Smith's Admr., 178 Ky. 681, in which we held that a bond so taken was invalid.
It is, therefore, manifest that appellees are not entitled to damages in this case, because of the execution of the supersedeas bond before the Boyd circuit court on June 24, 1924, since the right to prosecute the appeal under the order of the trial court granting it did not then exist, and the judgment not being superseded before the clerk of this court, who did grant the appeal that was actually prosecuted, there is no supersedeas upon which damages could be assessed.
Wherefore, the motion for the assessment of damages is overruled.