City of Louisville v. Muldoon

• Decision Date: 04 December 1897
• Citation: 43 S.W. 867
• Parties: CITY OF LOUISVILLE v. MULDOON et al.
• Court: Kentucky Court of Appeals

43 S.W. 867

CITY OF LOUISVILLE v. MULDOON et al.

Court of Appeals of Kentucky.

December 4, 1897

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action between the city of Louisville and M. Muldoon and others. From a judgment for the latter, the former appealed. The appeal was dismissed, without opinion, and appellant petitions for a rehearing. Petition overruled.

Henry L. Stone, for appellant.

T. L Burnett and Barnett, Miller & Barnett, for appellees.

LEWIS C.J.

The appeal in this case was, October 29, 1897, on motion of appellees, and because the transcript of the record had not been filed within the time required by Civ. Code, § 738 dismissed, with damages. November 30, 1897, appellant filed a petition for rehearing of, and overruling, the motion to dismiss, upon the ground that the order of the lower court granting the appeal was null and void, and consequently the supersedeas bond is unenforceable. It has, as argued by counsel, been definitely determined by this court that the trial court is without power, after expiration of the term during which a judgment was rendered, to make an order granting an appeal therefrom to this court. And, if so, it would seem to follow a supersedeas bond executed to stay proceedings under a judgment, the right to appeal from which does not at the time exist, is superfluous and ineffectual and, being so, should not be treated as binding upon, or enforceable against, the party executing it. Indeed, it has been more than once so held by this court. Civ. Code, § 734 provides: "The mode of bringing the judgment of an inferior court to the court of appeals for reversal or modification shall be by an appeal which shall be granted as a matter of right to a, party or privy against a party or privy, by the court rendering the judgment on motion made during the term at which it is rendered, or thereafter by the clerk of the court of appeals on the application of either party or his privy." And by section 988 it is provided that a "court having continuous session shall have control of its judgment for sixty days as circuit courts have over their judgments during the term in which they are rendered." The Jefferson circuit court, where the present action was pending, being one of continuous session it had no power to grant the appeal in question 60 days after the judgment was rendered. Said judgment was in one sense actually rendered ...