Creech v. Brock

• Decision Date: 24 September 1914
• Citation: 159 Ky. 739,169 S.W. 483
• Parties: CREECH v. BROCK.
• Court: Kentucky Court of Appeals

169 S.W. 483

159 Ky. 739

CREECH v. BROCK.

Court of Appeals of Kentucky.

September 24, 1914

Appeal from Circuit Court, Harlan County.

Election contest between John A. Creech and W. A. Brock. From a judgment in favor of the latter, the former appeals. On motion to dismiss. Granted.

Hall &amp Bowling and Acree & Stewart, all of Harlan, for appellant.

G. A Eversole and J. S. Forester, both of Harlan, and H. M. Brock of Hyden, for appellee.

HOBSON C.J.

The statute regulating appeals to this court in contested election cases provides:

"Either party may appeal from the judgment of the circuit court to the Court of Appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damages the other party may sustain by reason of the appeal and by filing the record in the clerk's office of the Court of Appeals, within thirty days after final judgment in the circuit court. And in the Court of Appeals the case shall be heard and determined as speedily as possible, and shall have precedence over all other cases." Section 1596a, subsec. 12, Ky. St.

Construing this statute in Krinn v. Helmbold, 113 Ky. 759, 68 S.W. 1103, 24 Ky. Law Rep. 551, where the transcript was not filed and the supersedeas bond was not executed in 30 days, and the time had not been extended, the court, sustaining a motion to dismiss the appeal, said:

"It seems to us that the act in question is mandatory, and that, unless the appellant complies with the statute, he cannot prosecute an appeal from the judgment of the circuit court.

It seems to us that the transcript must be filed within the time prescribed by law in order to confer jurisdiction upon this court to hear and determine the matter. We have examined with care the brief of appellant, but deem it unnecessary to discuss the authorities cited, as in our opinion they have no application to the question under consideration. It results from the foregoing that the motion to dismiss the appeal must be sustained."

Again in Lykins v. Steele, 76 S.W. 39, 25 Ky. Law Rep. 536, upon a similar motion, we said:

"Both of these requirements are conditions upon the fulfillment of which depend the jurisdiction of this court upon the appeal."

This is an election contest case involving the office of county judge of Harlan county. Judgment was rendered in the circuit court on June 17, 1914, setting aside the election. Creech was on that day granted an appeal and duly executed a supersedeas bond. On July 8th he filed in the clerk's office of this court a motion to extend the period of time 90 days for filing the transcript in this court, and in support of the motion he filed his affidavit as follows:

"The affiant and contestee, John A. Creech, says that the above-styled case in the Harlan circuit court was and is an election contest case, over the office of county judge of Harlan county; that the record, to include the pleadings, the evidence, exhibits, orders, and final judgment, will amount to something over 1,400 pages of closely made typewritten matter, and it will be impossible as he believes to obtain a transcript of the record and prepare and file the appeal of this case in the clerk's office of the Court of Appeals within 30 days from the rendition of the final judgment."

Rule 12 of the court (154 S.W. viii) is in these words:

"Except motions to extend the time for filing petitions for rehearing, a motion filed in the clerk's office on reasonable notice to the adverse party or his attorney of record, during vacation will be treated as made in court on that day, and will be considered by the court on the first day of its next session."

In Bennett v. Com., 150 Ky. 604, 150 S.W. 806, 43 L. R. A. (N. S.) 419, where the defendant in a felony case had filed a similar motion in vacation, we said:

"It has been the long-established custom of the court to treat such an application made in vacation as sufficient to maintain the status quo until the court, duly in session, shall have had opportunity to pass upon the motion. We see no reason to depart from the just custom."

On the 19th day of August the appellee filed with the clerk a motion to dismiss the appeal, and also entered his objection to the motion for an extension of time to file the transcript. In support of his objection to the extension of the time, he also filed this certificate by the clerk of the circuit court:

"I further certify that a transcript of the record in this case has never been called for by either party, and that said record could have been copied in the time fixed by law for filing transcripts in such cases, if directed by either party."

The pending motions have been submitted on this showing.

Under the rule and the long-established practice of the court, the motion of the appellant for an extension of time entered during a vacation of the court, must be treated as made in court on that day. A certificate by an officer as to a fact which he is by law authorized to certify is evidence; but a certificate by him as to other facts is no more competent as evidence than a similar certificate from a private person. The certificate of the clerk, not relating to a matter which he is authorized by law to certify, cannot therefore be considered. His affidavit should have been filed. The case therefore presents two questions: First, has this court power under the statute to extend the time for filing the transcript? Second, do the facts shown by appellant's affidavit warrant the extension of time?

1. As to the power of the court. The statute requires the contestee to file his answer within 20...