delivebed the opinion of the cottet

This is a motion by Thomas O. Hindman for a writ of mandamus requiring Emmet Field, judge of the Jefferson Circuit Court, Common Pleas division, to make a rule against Charles S. Crubbs and Frank Morancy, attorneys at law, to show cause why they shall not be compelled to put back into that court the sum of $4,000, withdrawn under these circumstances: Transcript of proceedings and bill of exceptions filed with the motion show there was pending in said court an action by S. H. Sullivan, assignee, &c., plaintiff, against

*149Columbia Fire Ins. Co., etc., defendants, in wbicb there was a judgment rendered as of February 23, 1897, one paragraph of which was as follows: “That in addition to the amount heretofore paid to said Grubbs & Morancy, they are allowed the further sum of $4,000 for services rendered the assigned estate of the Columbia Fire Insurance Co. of America, and they are now allowed to immediately withdraw from the fund in court said sum; and it is further ordered that James S. Ray, receiver, be, and he is hereby, directed to pay to Grubbs & Morancy their costs.herein expended, to which the Courier Journal Job Printing Co. and Thomas C. Hindman by counsel, except and pray an appeal to the Court of Appeals.”

There was in fact no entry made February 23,1897, in the proper record book of the judgment, nor until February 25, 1897, after the $4,000 was withdrawn by Grubbs <& Morancy, ■ was there any other record evidence of the judgment than a draft of it signed by the judge. Nevertheless Grubbs & Morancy, on February 24; 1897, presented to clerk of the court the draft mentioned, and he thereupon certified a check for $4,000 drawn by receiver of the court in favor of Grubbs & Morancy, and they then withdrew that sum and appropriated it.

A judgment directing an immediate payment to any party litigant out of a fund in court money that may be in controversy is unauthorized, and certainly can not deprive the opposing party of his indisputable right to stay such payment by executing a supersedeas bond.

In this proceeding the clerk knew and Grubbs & Morancy iknew plaintiff in the present motion intended to execute a *150supersedeas bond. In fact before Grubbs & Morancy presented to tbe clerk tbe draft of tbe judgment, and upon it procured certificate of the latter that was indispensable in order to enable the former to draw the money, directions had been given' by plaintiffs in this motion to the clerk to prepare a supersedeas bond, a surety to the bond had been obtained, and it was not promptiy executed because the clerk himself suggested completion of it be delayed until he by inspection of the judgment, not then ready for his inspection, could recite in the bond the particular part of the judgment it was intended to supersede.

' We do not hesitate to decide that plaintiff has been deprived practically of a right provided for by law in every such case, and Grubbs & Morancy have obtained the money in question prematurely and by irregular action of the clerk.

' But as the lower court was of opinion it had no jurisdiction of the motion made February 25, 1897, for the rule against Grubbs & Morancy, and probably, in view of the fact the supersedeas bond had then been executed, did not have such jurisdiction, we decline to^ order the writ of mandamus.

In his application for the writ petitioner asks this court, in case the writ is denied, to order a rule against Grubbs & Morancy, but we are not inclined, without a formal motion, to make the rule, and hope there will be no necessity for 't.