Com., Dept. of Highways v. Berryman

• Decision Date: 26 October 1962
• Citation: 363 S.W.2d 525
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Martha BERRYMAN, Widow, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 525

363 S.W.2d 525

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Martha BERRYMAN, Widow, et al., Appellees.

Court of Appeals of Kentucky.

Oct. 26, 1962.

Rehearing Denied Feb. 1, 1963.

John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hunley, Atty., Dept. of Highways, Frankfort, for appellant.

John Marshall Prewitt, Mt. Sterling, Max E. Conn, Ames, Iowa, for appellees.

PALMORE, Judge.

This is a highway condemnation case originating in the Montgomery County Court and governed by the provisions of KRS 177.081 et seq. The report of commissioners awarding the landowner $13,540 was confirmed by a judgment of the county court entered on September 19, 1958. The Commonwealth filed its appeal in the Montgomery Circuit Court on October 17, 1958, within the 30-day period allowed by KRS 177.087. The landowner did not appeal or otherwise plead in the circuit court until October 21, 1958, the 32d day after the date of the county court judgment, when she filed an answer and counterclaim. The counterclaim raised the question of inadequacy of the award and demanded a jury trial on all questions of damages.

In a similar case it has been held that an amended answer and counterclaim pleading inadequacy of the award, but not filed within 30 days after the date of the county court judgment, could not be treated as a cross-appeal by the landowners. 'The circuit court should have stricken or disregarded the pleading or attempt to cross-appeal because it was too late, with the result that the landowners were not entitled to claim more than * * * the amount of the county court judgment.' Keeney v. Com., Ky.1961, 345 S.W.2d 481. See also Bennett v. Com., Ky.1959, 322 S.W.2d 706.

The Commonwealth never questioned the defective appeal and did not object to the court's failure to limit recovery to $13,540 in its instructions to the jury. The result was a verdict for $18,316.

It is an accepted principle that jurisdiction of the subject-matter cannot be conferred by waiver or consent. Thompson v. Com., 1937, 266 Ky. 529, 99 S.W.2d 705; Rodney v. Adams, Ky.1954, 268 S.W.2d 940, 942; Burke v. Tartar, Ky.1961, 350 S.W.2d 146, 148. Though we do not appear to have held directly that a compliance with the 30-day time limit of KRS 177.087 is jurisdictional, that is the inference to be drawn from the language of several opinions to the effect that the circuit court obtains 'jurisdiction' when an appeal is perfected in accordance with the requirements of that statute. Cf. Com. ex rel. Curlin v. Taylor, Ky.1955, 279 S.W.2d 813; Com., Dept. of Highways v. Hale, Ky.1961, 348 S.W.2d 831, 833; Com., Dept. of Highways v. Bargo, Ky.1961, 350 S.W.2d 153.

The 30-day limit having been held independently applicable to each of the parties, if it is jurisdictional neither can waive the failure of the other to comply.

The word 'jurisdiction' is more easily used than understood. Conceived in terms of power, or effective authority, it may represent policy instead. Applied to questions of time, it is a convenient label to mark a requirement as ultra-mandatory. We think the requirement of KRS 177.087 that an appeal be taken within 30 days falls in that category. A fundamental purpose of the statute was to compel each party to speak up...