Roberts v. Jenkins

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT. This is an action upon a supersedeas bond executed byappellees Jenkins and Norris, his surety, pending an appeal by Jenkins and others v. The Boone County Court, See., from a judgment rendered by the Boone circuit court in April, 1872. It appears that in 1864 appellants borrowed a large sum' oí money, which was used in payment of bounties to soldiers enlisted in the United States army to supply the-places of men drafted under a call of the President in July, 1864^ to fill the quota of Boone county. By acts of the General Assembly passed in 1865, the Boone county court was empowered to issue county bonds, and to levy a tax upon the property of the county to repay to appellants the amount so advanced and used; but before the bonds were issued, and the tax levied, P. B. Cloud and others filed their petition in the Boone circuit court against Coleman, judge of the county court, and others, including appellants, and obtained a writ of prohibition enjoining and prohibiting the sale of the bonds and collection of the tax. This court, in the case of Cloud, &c., v. Coleman, &c., 1 Bush, 548, held that the acts referred to were void as to all tax-payers of the county, who neither aided in procuring-their passage, acquiesced in, approved, nor received benefits from them; but as to others, the acts were self-imposed, and they had no right to repudiate them, or resist their enforcement. Upon the return of the case to the circuit court, commissioners were appointed to hear proof, and report to the-court the names of those belonging to any of the classes held liable by this court; and at the April term, 1872, of the circuit court, judgment was rendered in which it was [668] decided that the only mode for the collection of the necessary money was by a tax to be enforced by the county ■court, and that the persons whose names were upon the schedules appended to the judgment, appellee Jenkins being ■one of them,, were within some one of the classes held liable to taxation for that purpose, according to the opinion of this court in the case of Cloud v. Coleman. In July, 1872, the Boone county court convened for the purpose, as stated in the order then made, of levying a tax ¡upon the persons bound to pay the same as directed in the judgment of the circuit court rendered in April; and it was then ordered that, for the purpose of discharging the amount so adjudged by the circuit court to be raised, the assessments be made against the persons'and for the amounts directed by that judgment. At the same term, as required by the acts •of 1865 a collector and treasurer were elected by the county •court. After that order was made the appeal from the judgment rendered by the circuit court in April, 1872, before referred to, was brought to this court, and in December, 1875, the judgment was affirmed. It is alleged in the petition in this case that in pursuance ■of the judgment of April, 1872, the Boone county court •did levy upon the property of appellee Jenkins to pay his pro rata portion of the amount to be so collected, such portion being $4,690.75, no part of which he has ever paid. That he and Norris, his surety, pending said appeal, executed before the clerk of the court of appeals said supersedeas bond, and thereupon the clerk issued an order of supersedeas commanding the appellees therein and all others to ■stay proceedings on said judgment, which order was served <on the county court and on the collector appointed to [669] collect -the tax from Jenkins, and the collection thereof was. thereby stayed. The appellants, in their petition, say that by reason of the breach of the covenants of the appeal bond they have been damaged in said sum of $4,690.75 and interest, and pray judgment therefor. There can be no question but that the effect of the order of supersedeas served upon the county court and collector has been to not only stay, pending the appeal, the collection of the sum appellee Jenkins was held liable for, but has. defeated its collection altogether. For, as held by this court in the case of Boone county v. Snyder, decided tia 1878, MS. Opinion, the acts .of 1865 had in December, 1875, when the judgment of April, 1872, was affirmed by this court, already expired by their own limitation, and of. course the special power conferred by them upon the county court to lev}' and collect the tax had then also ceased. But .whether the legal effect of the order of supersedeas, was to stay the collection under the order of the county court is a different question, and one upon which mainly depends the decision in this case. A supersedeas, in the language of the Civil Code, “is a written order signed by the clerk commanding the appellee and all others to stay proceedings on the judgment or order,” meaning of course the judgment or order appealed from. By the supersedeas issued in the case of Jenkins and others v. The Boone county court, &c., the appellee and all others were commanded to stay proceedings on the judgment of the circuit court and no other; and as Jenkins covenanted in the appeal bond to satisfy and perform that judgment in case it was affirmed, and to pay to appellees [670] ■•all costs and damages that might be adjudged against him' on that appeal, he is only liable in this action for such damages as may have resulted from the stay of proceedings on ■the judgment appealed from. The judgment of the circuit court was not for money or 'property, nor did it require appellee to do any' act the payment, surrender, or performance of which could have been ■ enforced by virtue of the judgment, or by any process legally issued in pursuance of it. Nor did this court, upon the ■appeal, render, or order to be rendered, by the circuit court, a judgment for money or property, or the performance of any act by the appellants in that qase. The appellants in this case could not have enforced, under that judgment, the collection of the amount now claimed,-or any part of it. It therefore follows that the affirmance of the judgment of April, 1872, did not necessarily give to the appellees in that case, or to the intended beneficiaries under ■the acts of 1865, any right of action against the obligors in '■the appeal bond for anything more than nominal damages ■and the costs of the appeal — not here sued for. ■ The collection of the amount for which Jenkins was held liable being •■enforceable under the order of the county court of July, 1872, ■and not under the circuit court judgment, it is obvious that the stay of proceedings on the latter judgment did not pre'vent its collection, or give to the appellees a right of action on the appeal bond unless the stay of proceedings on the judgment necessarily involved the suspension of the order •of the county court. Notwithstanding the persons held liable, as well as the ■pro rata portion of each, were ascertained and determined ‘by the judgment of the circuit court, still, in respect thereto, the judgment was, as is stated in it, merely directory, [671] •and neither final or mandatory. And, in our opinion, the ■county court had plenary power and jurisdiction, as the case then stood, to not merely determine the pers.ons who were liable, and the amounts they were liable for according to the ■decision of this court, but also to make the levy and collection independent of the judgment of the'circuit court. The county court was, in the first instance, empowered by the acts of 1865 to do or order done all that was required by them, and the circuit court obtained jurisdiction .alone by virtue of the writ of prohibition, which involved the validity of the acts themselves. But the decision in the case of Cloud v. Coleman operated to remit to the county court jurisdiction, exclusive of the circuit court, to enforce the provisions of the acts to the extent and against the ■classes of persons this court held in that case they, could be enforced. For the writ of prohibition had spent its force, and the circuit court was, after the decision of this ■court, without the power to render a judgment in respect 'to the levy and collection of the tax. It follows, therefore, that the stay of proceedings on the judgment of the circuit court, rendered in April, 1872, did ■not have the legal effect to suspend the order of the county court and prevent the collection of the amount appellee Jenkins was liable for. This conclusion is in accordance with the opinion of the court in the case of Boone County v. Snyder, supra, though this question did not directly arise in that case. There it was distinctly held that the appeal of Jenkins did not supersede or suspend the levy, and presented no obstruction to the collection of the tax under the order of the county court made July, 1872. The judgment of the court below sustaining the general ■demurrer to the petition must be affirmed.