Schnabel v. Waggener , 118 Ky. 362 ( 1904 )

Opinion of the court by

CHIEF JUSTICE BURNAM

Affirming.

This is an appeal from a judgment discharging a rule ■which sought restitution of money received under a judgment of the Jefferson Circuit Court which was subsequently reversed by this court. The facts of the case are fully recited in the opinion of the court upon the former appeal by Judge DuRelle, and in the separate opinion of Judge Guffy, reported in 56 S. W., 983, 22 Ky. Law Rep., 284. Upon the return •of the case to the lower court, it was decided that the infant defendants were entitled to $534, with interest from the 9th of July, 1898, as the value of the homestead adjudged them upon the former appeal. It was also shown that there had been paid to the appellee, R. C. Waggener, $514.60, from the funds on hand at the date of the former judgment, and upon motion of the infant defendants a rule was awarded against bim to show cause why he should not repay into court the full amount of the money which he had withdrawn under the ■reversed judgment. In his response to this rule, he claimed that he had only received, as his pro rata of the fund finally ■adjudged the infants in lieu of homestead, $158, and that he ought not to be held liable for any greater amount, and paid ■the sum which he admitted to be due into court. The action having been submitted on the response of Waggener to the rule against him, it was discharged, and a judgment awarding appellants $158 was entered. The defendants excepted ■to the judgment, and have again appealed, and insist that they should not be driven to collect the full amount allowed to them as a homestead exemption from the insolvent creditors, but are entitled to have restitution to the full extent of the pro rata received by appellee from the estate of their father upon his debt, upon the ground that their claim for the homestead' was a preferred one.

The rule is well settled that restitution on reversal of a judgment can be compelled from only parties to the record, their assignees or personal representatives, and only to the extent that such parties have actually profited by the erroneous judgment. Gregory v. Litsey, 48 Ky., 43, 48 Am. Dec., 415; Morgan v. Hart, 48 Ky., 79; Ball v. Lively, 34 Ky., 371; Outten v. Palmatter, 30 Ky., 241. We think the trial court properly limited the amount to be paid by appellee to the amount actually received by him as his pro rata of the fund finally adjudged appellants.

It is insisted in the brief of counsel representing appellants that as appellees delayed from the date of the submission of this case on the 13th of November, 1902, until the 26th of May, 1904, to file their brief, they should be required to pay the cost up to the latter date. Buie 3 provides that ■“in all cases or appeals hereafter filed, or now filed and not ■submitted, it shall be the duty of the appellant to file his brief twenty days prior to tlie day tbe ease is set for bearing, and tbe appellee to file bis brief ten days prior to that time, and a failure to do so by tbe appellant shall cause a dismissal of tbe appeal without prejudice, and upon tbe part of tbe 'appellee, be will, if in default, be required to pay tbe costs up to tbe date of filing bis brief.” This court bas not seen fit heretofore sua sponte to enforce rule 3, and bas uniformly refused to dismiss an appeal for failure of appellant to file brief when tbe motion came for tbe first time after tbe submission of tbe case; and it bas also for tbe same reason refused to impose tbe payment of costs Upon appellee for tbe failure to file brief unless motion to this effect was made by tbe appellant prior to tbe submission of tbe cause. As no motion was made by appellants in this case either before or after tbe submission of tbe case, tbe court does not feel warranted in following tbe suggestion of counsel for appellants as to costs.

For reasons indicated, the judgment is affirmed.