Big Sandy Ry. Co. v. Dils

• Decision Date: 23 May 1905
• Citation: 87 S.W. 310,120 Ky. 563
• Parties: BIG SANDY RY. CO. v. DILS et al.
• Court: Kentucky Court of Appeals

87 S.W. 310

120 Ky. 563

BIG SANDY RY. CO. v. DILS et al.

Court of Appeals of Kentucky.

May 23, 1905

Appeal from Circuit Court, Pike County.

"To be officially reported."

Condemnation proceedings by Big Sandy Railway Company against Annie L Dils and others. From a judgment of the circuit court rendered on appeal from the county court, assessing defendants' damages, plaintiff appeals. Reversed.

York &amp York, J. W. York, and W. H. Wadsworth, for appellant.

N. J. Auxier, for appellees.

HOBSON C.J.

On March 23, 1903, the Big Sandy Railway Company filed in the Pike county court its petition to condemn as part of its right of way a strip of land, belonging to John A. Dils' heirs, 100 feet wide and 1,181 feet long, containing 2 71/100 acres. Commissioners were appointed, who valued the strip taken at $1,000, and fixed the damages to the remainder of the tract at $400. The defendants filed exceptions to the commissioners' report, and, the case being heard by a jury, a verdict was rendered fixing the value of the strip taken and the damages to the residue of the tract at $3,500. The defendants were not satisfied with the verdict of the jury, and took an appeal to the Pike circuit court. In the circuit court the case was tried anew, and a verdict and judgment were obtained fixing the damages at $8,800, and from this judgment the railroad company appeals.

When the case reached the circuit court, the railroad company entered a motion to dismiss it. The court overruled the motion, and the correctness of this ruling is the first question arising on the appeal. The judgment in the county court was rendered on April 23, 1903. On May 14th the defendants filed with the clerk of the circuit court an attested copy of the judgment, and executed before him an appeal bond. He thereupon issued a supersedeas and a summons. Some days after this the county clerk made a copy of the other orders entered in the county court, and pinned them to the copy of the judgment which had been filed in the circuit court; but no statement of the parties to the appeal was filed until the motion to dismiss the appeal was entered by the railroad company at a subsequent term of the circuit court. A statement of the parties to the appeal was then tendered, and the court allowed it to be filed. Section 839 Ky. St. 1903, provides: "Either party may appeal to the circuit court, by executing bond as required in other cases, within thirty days, and the appeal shall be tried de novo." Section 840 further provides: "The appeal from the county court shall be taken by filing with the clerk of the court to which the appeal lies a statement of the parties to the appeal, and a transcript of the orders of the county court, and thereupon the said clerk shall certify to the clerk of the county court that said appeal has been filed, and the clerk of the county court shall immediately transfer the original papers to the clerk of the court to which the appeal is pending." It will be observed that by section 839 either party may appeal by executing the bond within 30 days, and that by section 840 the appeal shall be taken by filing with the clerk of the court to which the appeal lies a statement of the parties to the appeal and a transcript of the orders of the county court. The two sections are to be read together. It is incumbent upon the appellant to file the transcript of the orders of the county court, a statement of the parties to the appeal, and execute the bond within 30 days after the judgment in the county court. In the case before us the bond was executed in time, and a partial transcript of the orders of the county court was filed, which showed the parties to the appeal sufficiently to enable the clerk to issue a summons and a supersedeas, which were issued in time. In other words, a good appeal bond was executed, and an imperfect transcript was filed, which contained an imperfect statement of the parties to the appeal. After the 30 days had expired, the court, instead of dismissing the appeal, allowed the appellant to file a full statement of the parties to the appeal and a full transcript of the orders of the county court. Section 134 of the Civil Code of Practice is as follows: "The court may, at any time, in furtherance of justice, and on such terms as may be proper, cause or permit a pleading or proceeding to be amended, by adding or striking out the name of a party; or, by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, if the amendment do not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." The purpose of this section of the Code is to permit amendments in just such cases as this, where by some irregularity the proceeding does not conform to the requirements of the law. In Bush v. Lisle, 86 Ky. 504, 6 S.W. 330, an imperfect transcript was filed in this court, and, after the time had expired for filing the transcript, it was insisted that the appeal should be dismissed, but the court held otherwise, and allowed the imperfect transcript to be perfected. In Puff v. Huchter, 78 Ky. 146, the plaintiff failed to file a petition in the magistrate's court, but after appeal to the circuit court he was allowed to file an amended petition setting up his cause of action. In the same way it has been held that a defective bastardy warrant, or a defective warrant for forcible entry or detainer, or defective warrant for a misdemeanor, may be amended on appeal. Commonwealth v. Cantrell, 45 S.W. 72, 20 Ky. Law Rep. 24; Louisville v. Wehmhoff, 76 S.W. 876, 25 Ky. Law Rep. 995; Forsythe v. Huey, 74 S.W. 1088, 25 Ky. Law Rep. 147. In Galloway v. Bradburn, 82 S.W. 1013, 26 Ky. Law Rep. 977, it was held that where a defective appeal bond is executed in due time in a contested election case a good and sufficient bond may be given under this provision of the Code after the time for the execution of the bond has expired. In that case the court, among other things, said, referring to the provision of the Code above quoted: "As the Code regulates proceedings in all actions, so this section allows an amendment of all proceedings in the process of an action. It was intended by it to provide in general for the amendment of anything that was found to be defective in the progress of an action, the purpose being to perfect rather than to destroy. It is not limited to mistakes in...