|19 Ky.L.Rptr. 1833|
|Court of Appeals of Kentucky.|
|GILBERT et al. v. BAMBERGER et al. (two cases).|
|Feb. 2, 1898.|
Appeal from circuit court, Knox county.
"Not to be officially reported."
Actions by Bamberger, Bloom & Co. against William Gilbert and others on a supersedeas bond.
Judgments for plaintiffs, and defendants appeal.
James T. Gibson owned a house and lot in the town of Barboursville, Ky. Suits were instituted against him by parties, in which liens were asserted on the property. Among others, Bamberger, Bloom & Co. asserted a lien for several notes, each for the sum of $227.62. The appellant Gilbert claimed that he had a lien upon the property superior to that of Bamberger, Bloom & Co., for several thousand dollars. There was a personal judgment against James T. Gibson in favor of Bamberger, Bloom & Co., for $227.62, with interest from June 12, 1891; $227.62, with interest from August 12, 1891; and $227.62, with interest from October 12, 1891. The court adjudged that Bamberger, Bloom & Co. had a lien for their debt which was superior to that of Gilbert. Gilbert was not in any wise liable for the personal judgment rendered in favor of Bamberger, Bloom & Co. against Gibson, but he did complain because the court adjudged their lien superior to his. Thereupon he prosecuted an appeal from the judgment, which was affirmed. For the purpose of superseding the judgment, he executed a supersedeas bond, with appellants Hays and Carton as sureties. The bond reads as follows: "Whereas, said appellant, William Gilbert, has prayed an appeal from the judgment of the Knox circuit court, rendered at its August term, 1894, in favor of the appellee, Bamberger, Bloom & Co., for the sum of $227.62, with interest from June 12, 1891; $227.62, with interest from August 12, 1891; and $227.62, with interest from October 12, 1891,-and adjudging said sums of money a lien upon the house and lot involved in this action, superior to the claim of appellant, and said appellant desires to supersede said judgment, in so far as same adjudges the lien of appellee superior to that of appellant, above mentioned: Now, we, William Gilbert, principal, and John T. Hays and John H. Carton, sureties, do hereby covenant to and with the appellee, Bamberger, Bloom & Co., that the appellant will pay to the appellee all costs and damages that may be adjudged against the appellant on the appeal, and also that they will satisfy and perform the judgment above stated, in case it shall be affirmed, and any judgment or order which the court of appeals may render, or order to be rendered by the inferior court, not exceeding in amount or value the judgment aforesaid, and also pay all rents, hire, damage, which during the pendency of the appeal may accrue on any part of the property of which the appellee is kept out of possession by reason of the appeal."
This appeal raises the question as to what were the liabilities of the obligors on the bond. The appellees instituted this action upon the bond, and the only recovery which they sought was the amount of their personal judgment, and interest and costs, which they recovered against James T. Gibson. There was no reason why Gilbert should supersede the personal judgment which had been rendered in favor of the appellees against Gibson. There seems to have been no controversy as to the personal liability of Gibson to Bamberger, Bloom & Co. for the amounts for which they recovered judgment against him. The bond recited that the appellant desired to supersede the judgment, "in so far as same adjudges the lien of appellee superior to that of appellant, above mentioned." This language clearly indicates that his desire and intention were to only supersede that part of the judgment which held the lien of the appellee superior to that of Gilbert. Language appears in the bond as follows: "And also that they will satisfy and perform the judgment above stated, in case it shall be affirmed." This is the only language in the bond upon which the appellees can assert any right to recover against the appellants the amount of the personal judgment rendered against Gibson. When this language is taken in connection with the balance of the bond, it is clear that the covenant to perform the judgment "above stated" refers to that part of the judgment which alone affected his rights, and which was that part of the judgment that gave the appellees a lien superior to that of the appellant Gilbert. In order to determine as to what obligations were assumed by the obligors in its execution, the bond should be read and considered in its entirety. When this is done, it is perfectly manifest that the bond does not fix a liability on the obligers to pay the amount of the personal judgment which appellees recovered against Gibson. The recital of the various sums in the bond for which a lien was adjudged on the property superior to that of the appellant Gilbert was evidently to show the amount for which the lien was adjudged the appellees, and of which Gilbert complained. Had it been the intention to supersede the judgment in the case in its entirety, it would have been unnecessary to have added the words "above stated." They were placed there for the purpose of indicating that part of the judgment of which the appellant Gilbert was complaining, being that part which he declared in the bond he desired to supersede. To hold that the obligors of the bond are bound for the personal judgment of appellees against Gibson would be creating an obligation which the parties never intended to assume, nor which, in our opinion, is imposed by the letter of the bond. It is evident that the terms of the bond were varied so as to make the obligors liable for damages which would result from superseding that part of the judgment which gave Bamberger, Bloom & Co. a lien superior to that of Gilbert. The obligors in a supersedeas bond can only be held liable according to its terms. There was but one question tried by the jury, and that was as to whether Gibson had paid Bamberger, Bloom & Co. part of the judgment which had been rendered against him; and, as there is no bill of exceptions in the record, the only question remaining is whether, under the pleading in the case, the appellees were entitled to recover the judgments appealed from. We do not think, under the pleading in the case, independent of the plea that Gibson had paid part of the judgment, the appellees were entitled to recover, on the bond, the amount of their personal judgment against Gibson. This is upon the idea that the bond shows that it was not executed for the purpose of superseding the personal judgment against Gibson. The judgments are reversed for proceedings consistent with this opinion.
GILBERT et al. v. BAMBERGER et al. (two cases).
44 S.W. 421, 19 Ky.L.Rptr. 1833
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