Bobbitt v. Cundiff

• Decision Date: 29 February 1944
• Citation: 296 Ky. 802
• Parties: Bobbitt v. Cundiff et al.
• Court: Supreme Court of Kentucky

296 Ky. 802

Bobbitt v.Cundiff et al.

Court of Appeals of Kentucky.

November 16, 1943.

As Modified on Denial of Rehearing February 29, 1944.

1.Appeal and Error.— Generally, on a motion to dismiss an appeal because not timely filed, the court looks only to the record.Civil Code of Practice, sec. 745.

2.Appeal and Error.— The appellant must show the timely filing of the appeal, and failure to do so compels its dismissal.Civil Code of Practice, sec. 745.

3.Appeal and Error.— An appeal from an order entered March 2, 1940, though endorsed by the clerk as filed on March 2, 1942, and therefore not within the two years allowed by statute, would not be dismissed, where affidavits showed that the record had been brought to the clerk's office on February 27, 1942, together with a check, bearing the same date, for the filing fee.

4. Automobiles.— Before a license can be obtained for a new automobile, the buyer must present to the county clerk his bill of sale, executed in accordance with the statute.KRS 186.200.

5. Sales.— Though a bill of sale is not conclusive as to who is the actual owner, its execution, delivery, and lodging for record, and surrender of the property described, are conclusive as to the date on which the sale was consummated.

6.Chattel Mortgages; Sales.— Where an automobile buyer received the bill of sale and on the following day obtained his license and on the same date executed a mortgage on the automobile, the sale was effective from that date, and hence the mortgage was valid as against the seller's assignee, even though the conditional sales contract and note to the seller were not signed until 9 days later.KRS 186.200.

7.Chattel Mortgages.— As between an attachment levied and a chattel mortgage filed for record on the same day, priority depends on the exact time of day of the lodging with the sheriff and clerk, respectively.

8.Attachment; Chattel Mortgages.— Under a mortgage contract and note providing for monthly installments, plus interest, and making the entire sum due on failure to meet three payments, the interest was as much a part of the contract as the principal, but acceptance of the principal without interest waived the right of acceleration, and hence a petition alleging failure to pay only two installments with interest, and nonpayment of interest on three installments, sought to recover a "debt not due" within the statutes governing attachment.Civil Code of Practice, secs. 194, subd. 2, 237, 249, 251.

9. Attachment.— Where plaintiff sued for a debt not due, and his allegations did not conform strictly with the appropriate attachment statute, but were sufficient under another section governing specific attachment, and plaintiff asked for a general and specific order of attachment, the clerk had no authority to act under the section regulating specific attachment, and a specific order of attachment issued by him must fail.Civil Code of Practice, secs. 194, subd. 2, 237, 249, 251.

Appeal from Pulaski Circuit Court.

R.C. Tartar for appellant.

B.J. Bethurum and Neil G. Sullivan for appellees.

Before J.S. Sandusky, Judge.

OPINION OF THE COURT BY JUDGE CAMMACK.

Affirming in part, and reversing in part.

This appeal is from an order entered March 2, 1940.According to the clerk's endorsement on the record it was filed in this Court on March 2, 1942.This being more than the two years allowed under section 745 of the Civil Code of Practice for taking an appeal, the appellees have filed a motion to dismiss it.In reponse to appellees' motion the attoney for the appellant has filed his affidavit stating he brought the record to the clerk's office in person, together with his check for the filing fee, on February 27, 1942.The affidavit also states that the records of the Quarterly Court of Pulaski County show that the attorney, who is County Judge of Pulaski County, held court there on February 28th, and again on March 2, 1940, the date on which the record is purported to have been filed in this Court.The statements made in the affidavit as to the date are supported by the date of the check which is February 27, 1942.There is also filed the affidavit of the appellant to the effect that he inquired at the office of his attorney on February 27, 1942, as to whether his appeal had been filed and was informed by someone that his attorney was that day in Frankfort.The man who drove the attorney to Frankfort also filed an affidavit stating that, "sometime about the last of February, 1942, he drove R.C. Tartar (the attorney) to Frankfort, Ky., and that on the way the said R.C. Tartar discussed with him an appeal for Virgil Bobbitt, that the said Tartar informed him that he was that day filing with the Court of Appeals; he states that previously he had had a law suit with the said A.G. Colyer, and that same was discussed in connection with the Bobbitt appeal * * *."

Due to the nature of these affidavits and the check the appellees are in no position to deny or contradict them, and have not done so.They rely upon the well settled rule that the Court looks only to the record and since it is undeniably shown to have been filed too late they insist the appeal must be dismissed.Under ordinary circumstances this motion would be sustained, since it is the duty of the appellant to show that he has filed his appeal in the time required by law and his neglect or failure to do so would compel this Court to dismiss his appeal.However, in this casethe appellant is contending there has been no neglect or failure on his part, but on the contrary he has diligently prosecuted his appeal, and the neglect or failure, if any, is not with him.He is insisting his appeal was brought within the time allowed by law, and he files with the record his affidavits and cancelled check to support this fact.In view of the response we are inclined to uphold his contention.Where he has shown that the record was delivered to the clerk within the time allowed by law, together with the filing fee, the appeal should not be dismissed on the ground the filing date was not endorsed upon the record until the filing date had expired.The motion to dismiss the appeal is overruled.SeeDreher v. Guaranty Bond & Finance Co., 193 La. 757, 192 So. 246, which involved circumstances very similar to those just discussed.

The appellant owned two used automobiles which he sold to Estill Cundiff for $500.Cundiff desired to trade in one of them on a new car, but needed, in addition to the used car, $100, which he got from the appellant.After purchasing the new car from the appellee, Colyer, on March 11, 1938, and obtaining his bill of sale, it developed he also needed $30.50 to pay the usage tax before he could get a license.This sum he also got from the appellant and obtained his license on March 12, 1938.On this same date the appellant and Cundiff entered into a mortgage contract which recited, in effect, that Cundiff had purchased the two used cars, one of which he...