Commonwealth v. Caudill

• Decision Date: 29 November 1905
• Citation: 89 S.W. 535,121 Ky. 537
• Parties: COMMONWEALTH v. CAUDILL.
• Court: Kentucky Court of Appeals

89 S.W. 535

121 Ky. 537

COMMONWEALTH v. CAUDILL.

Court of Appeals of Kentucky.

November 29, 1905

Appeal from Circuit Court, Pike County.

"To be officially reported."

Proceeding by the commonwealth against J. D. Caudill. From a judgment of the circuit court on appeal from the county court, the commonwealth appeals. Reversed.

N. J Auxier and S. M. Cecil, for the Commonwealth. J. M. York, for appellee.

O'REAR J.

This is a proceeding against appellee to list omitted personal property for five years before the filing of the statement. The trial in the county court resulted in a judgment in favor of the commonwealth, finding that personal estate, varying from $6,000 to $9,000, had been omitted for the years stated giving the exact amounts found to have been omitted each year, and directing it to be listed as of those years. After the adjournment of the term at which the judgment was rendered, the commonwealth gave notice to the defendant that it would on the succeeding county court day move the court to correct the judgment in certain particulars because of clerical misprision in entering it. At the time and place specified in the notice the motion was made and heard, and the judgment corrected in accordance with the notice. The defendant prayed and was granted an appeal from each of these judgments.

Appeals from judgments of the county court to the circuit court must be prosecuted within 60 days from the rendition of the judgment. In this case the appeal was prosecuted within 60 days after the last-named judgment, but not until after 60 days after the rendition of the first-named judgment. In the circuit court the commonwealth moved to dismiss the appeal which was overruled, and upon a trial on the merits the circuit court dismissed the proceeding of the commonwealth upon the ground that it had failed to make out a case. If it be deemed that the appeal tried in the circuit court was from the first judgment, which found the fact to be that appellee had omitted to list his property for taxation, and causing it to be listed, then the appeal was not prosecuted within time. On the other hand, if the appeal was prosecuted from the last judgment, which was to correct the clerical misprision, then the only thing to be considered on that appeal was whether there had been in fact a misprision of the clerk in the entering of the judgment, and whether the judgment so entered at last was in conformity to the one that should have been entered as indicated by the court's records. It may be as well to say here that there is nothing in this record to show that the correction of the judgment as made in the last judgment was not justified by the state of the record.

Appellee contends, and such must have been the view taken by the circuit court, that the judgment from which he appealed was the one fixing his liability to be assessed upon omitted property; that both the judgments in the county court are for the same thing, but that neither of the judgments became final or conclusive against him until the last one was rendered; that until the last one was rendered, and thereby it became a final judgment affecting his property rights, he had not the right of appeal, and therefore had full 60 days from that time in which to perfect it under the statute. While a motion for a new trial operates to suspend a judgment in the action in which it is pending until the motion is acted...