Asher v. Cornett

• Decision Date: 04 October 1907
• Citation: 126 Ky. 569,104 S.W. 347
• Parties: ASHER v. CORNETT.
• Court: Kentucky Court of Appeals

104 S.W. 347

126 Ky. 569

ASHER v. CORNETT.

Court of Appeals of Kentucky.

October 4, 1907

Appeal from Circuit Court, Leslie County.

"To be officially reported."

Action by A. B. Cornett against A. J. Asher. Judgment for plaintiff. Defendant appeals. Plaintiff moves to dismiss the appeal and discharge the supersedeas. Denied.

N. J Weller, for appellant.

Jas. H Jeffries, for appellee.

O'REAR C.J.

The question for decision now in this case is whether appellee's motion to dismiss the appeal granted by the lower court, and to discharge the supersedeas issued by the clerk of the circuit court, should prevail. Appellee sued appellant in assumpsit in the Leslie circuit court. A default judgment was rendered against appellant at the February 1907, term of that court. No appeal was asked for, and none was granted by the court at that term. Appellant executed a supersedeas bond before the clerk of the Leslie circuit court and had issued a supersedeas staying proceedings upon the judgment on the 13th day of June thereafter. On the 26th day of June appellee filed notice, copies of the judgment and supersedeas bond, and moved this court to dismiss the appeal granted by the lower court, and to discharge the supersedeas. The papers filed did not disclose whether an order granting the appeal had been made by the circuit court. In this state of the record the court entered this order: "It appearing from the record that no appeal was granted before the execution of the supersedeas, the clerk was not authorized to issue a supersedeas or to accept bond. It was void. There is no necessity for quashing it, nor has the court power to do so in the present state of the record. Motion overruled." It now appears from the complete record filed in the case that at the April term, 1907, of the Leslie circuit court, appellant entered a motion to set aside the judgment rendered at the February term and to grant him a new trial of the action. Upon hearing, that motion was overruled, and from the judgment refusing the new trial appellant was granted an appeal to this court. It is insisted now that the appeal so granted was an appeal from the default judgment rendered at the February term, and that the clerk of the circuit court was therefore authorized to accept the bond and issue the supersedeas.

The circuit court has not the jurisdiction to grant an appeal from its judgment, except at the term of the court at which the judgment is rendered. Section 734, Civ. Code Prac. An appeal granted by the circuit court at a term subsequent to the one at which the judgment was rendered is void. American Accident Co. v. Reigart, 92 Ky. 142, 17 S.W. 280. We construe that the order granting the appeal in this case has relation alone to the judgment rendered at the term of the court during which the appeal was allowed, to wit, from the judgment of the April term of the court refusing a new trial of the action. A judgment vacating a former judgment, or refusing to...