Rennebaum v. Atkinson & Co. , 105 Ky. 396 ( 1899 )

JUDGE DuRELLE

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 The judgment was superseded, and on appeal to this court was affirmed, with damages.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summons was issued against Rennebaum to show cause why judgment should not be rendered for $90 damages on the judgment superseded, and judgment was accordingly rendered for said sum, but, at the same term, on motion, was set aside, and in lieu thereof a judgment was rendered for $10,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 in damages recovered by the plaintiffs by former judgment, and said $100 being, in the opinion of the court, the amount superseded, as mentioned in said mandate, to which plaintiff excepts.” Thereupon the appellees filed in this court a transcript of the proceedings subsequent to the affirmance, together with an affidavit showing that all of the property of which appellees were adjudged the owners had been removed from Bell county; that it was impossible to recover said property, and that appellees had never received any part thereof, nor had said property ever been tendered them in satisfaction of their judgment. Upon this transcript and affidavit, appellees moved for a rule against the circuit judge to show cause why he should not enter a judgment in accordance with the mandate of this court. “Upon the affirmance of, or the dismissal of an appeal from, a judgment for the payment of money, the collection of which, in whole or part, has been superseded, . . . ten per cent, damages on the amount superseded shall be awarded against the appellant.” (Code, sec. 764.)

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 are of opinion, therefore, that the circuit court should enter a judgment for $90 damages. The procedure by rule is proper to bring the question before this court for re-view (Smith v. Cochran, 7 Bush, 555); but, as the circuit judge evidently believed the judgment entered was in accordance with the mandate, the rule moved for will not be awarded. The whole court sitting.