American Accident Company of Louisville v. Reigart

• Decision Date: 17 October 1891
• Citation: 92 Ky. 142
• Parties: American Accident Company of Louisville v. Reigart.
• Court: Kentucky Court of Appeals

Page 142

92 Ky. 142

American Accident Company of Louisville v. Reigart.

Court of Appeals of Kentucky.

October 17, 1891.

APPEAL FROM MASON CIRCUIT COURT.

A. M. J. COCHRAN, EDWARD W. HINES FOR MOTION.

THOMAS H. HINES AGAINST MOTION.

CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.

This is a motion to dismiss an appeal with ten per cent. damages, upon the ground that it was improperly granted by the lower court.

The order allowing the appeal was made upon a motion entered at a term subsequent to the judgment, and to the order overruling the motion for a new trial. The Civil Code, section 734, provides, "that an appeal shall be granted as a matter of right by the court rendering the judgment, on motion made during the term at which it is rendered, or thereafter by the clerk of this court." Section 757 gives the right to the appellee when it appears from the record that an appeal has been "improperly granted" to move to dismiss it; and section 764 provides, "upon the affirmance of, or the dismissal of an appeal from a judgment for the payment of money, the collection of which in whole or part has been superseded, as provided in chapter 2 of this title, ten per cent. damages on the amount superseded shall be `awarded against the appellant.'" The appellee contends that the appeal was "improperly granted," and, therefore, by the terms of the statute it must not only be dismissed, but the judgment having been for money, and a supersedeas bond executed and supersedeas issued, the allowance of the damages necessarily follows the dismissal. Undoubtedly, the court had no right to entertain the motion or grant the appeal at a term of court subsequent to the judgment and the overruling of the motion for a new trial. This is conceded by the appellant, but it insists that the order allowing it was void, and that, therefore, the execution of the supersedeas bond before, and the issual of the supersedeas by, the clerk of the lower court were void acts, which did not prevent the enforcement of the judgment.

The order granting the appeal was a nullity. (City of Bowling Green v. Elrod, 14 Bush, 216; Wright, &c., v. Woolfolk, 14 Bush, 308.)

The Code expressly declares that after the expiration of the term at which the judgment is rendered, an appeal must be granted by the clerk of this court. The lower court has no longer any power in the matter. For any such purpose there is no cause pending before it, and if it assumes to act, it is coram non judice. Its order is, in legal effect, no...