dissenting.
Respectfully, I dissent. I would affirm the decision of the Court of Appeals and hold that the ten percent penalty provisions of KRS 26A.300 do not apply.
Gray brought an action against Coomer, which he won. He was awarded a judgment for the payment of $27,000. Gray’s other claims were dismissed. He appealed: the Court of Appeals affirmed the judgment of the Adair Circuit Court, and the Kentucky Supreme Court denied discretionary review. Coomer then filed his motion under KRS 26A.300 to penalize Gray in the amount of ten percent of the money paid into court.
Coomer won no suit. No judgment was decided in his favor. The money upon which Coomer sought a penalty, was paid into court at the agreement of both parties. Out of these funds, entrusted to the court, the payment for Gray’s judgment was to be made. The fund contained far more money than was necessary to satisfy the judg*428ment, so the court ordered the remaining money returned to Coomer. There was no judgment for the payment of money in favor of Coomer.
KRS 26A.300(2) provides:
(2) When collection of a judgment for the payment of money has been stayed as provided in the Rules on Civil Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an appellate court.
Thus, it applies only when “collection of a judgment for the payment of money has been stayed”. When there has been no judgment for the payment of money, the statute simply does not apply. As we held in Ford v. Ford, Ky., 623 S.W.2d 903, 904 (1981):
A review of Kentucky decisions dealing with the KRS 26A.300(2) penalty and its predecessors reveals that “it has been written in many cases that damages will only be awarded in cases where the judgment is for the payment of money and may be enforced by execution or similar process.”
Moreover, in Hall v. Dineen, 120 Ky. 483, 87 S.W. 275, 276 (1905) we held:
[Djamages on the affirmance of a judgment superceded should not be given where the contest was over a fund in court, but that the judgment must be one that might be enforced by execution.
The majority contends that Hall is no longer good law, as it turned on a construction of Civ.Code Prac. § 764, the predecessor of KRS 26A.300. Although § 764 was more harsh than the present law, imposing a penalty on the first appeal, the principle still applies. Hall is directly on point. The reasoning is the same no matter which statute is construed.
Finally, it is argued by the majority that there are no policy differences which would require a judgment for money paid from a fund in court to be treated any differently than an execution on the losing party. I disagree. Simply put, the difference depends upon who has possession and control of the funds. In the hands of a party, they are at the disposal of that party: to invest, to spend, to loan. In the hands of the court, they are the lawful property of no one. Neither party obtains an unfair advantage over the other through the means of endless appeals which KRS 26A.300 sought to avoid.
Therefore, for these reasons, I would affirm the decision of the Court of Appeals, and must accordingly dissent.
GANT, J., and STEPHENSON, J., join in this dissenting opinion.