First National Bank of Mayfield v. Lisanby

CULLEN, Commissioner. The First National Bank of Mayfield, Executor Under the Will of Ed Gardner, Deceased, has petitioned this Court for an order of mandamus directing J. Gordon Lisanby, Special Judge of the Graves Circuit Court, to “correct” the judgment entered by him in purported compliance with the mandate of this Court in First National Bank of Mayfield v. Gardner, Ky., 348 S.W.2d 839. The petitioner maintains that the judgment is erroneous and deficient in various respects and is not in conformity with the mandate. [33] The proceeding in the circuit court out of which arose the appeals involved in First National Bank of Mayfield v. Gardner, supra, was an appeal by Bunk Gardner, Sr., from orders of the county court admitting to probate a will and codicil of Ed Gardner, deceased. On October 23, 1959, the circuit court entered an interlocutory order holding invalid a “release” which Bunk Gardner, Sr., had executed and which the proponents of the will had asserted as a bar to the right of Bunk Gardner, Sr., to contest the will and codicil. On December 18, 1959, judgment was entered holding the will invalid but the codicil valid. Appeals were taken to this Court from so much of the judgment of December 18 as held the will invalid, and from the order of October 23. (The latter order was, of course, reviewable on the appeal from the final judgment, and it was treated by this Court as embraced in the final judgment for the purpose of disposition of the appeals.) The mandate of this Court was: “It is therefore considered that said judgment be reversed, with directions that the appeal from the order of the county court probating the will be dismissed ; * * * ” The judgment entered by Special Judge Lisanby upon the mandate was: “(1) The judgment of the Graves Circuit Court dated December 18, 1959 is now reversed; “(2) The appeal from the order of the County Court probating the will is dismissed.” Clearly, the judgment is in full conformity with the mandate. The petitioner desires that the judgment be expanded to state its operative effect in relation to various matters. We do not consider this normally to be an appropriate function of a judgment. The petition is denied.