Hackney v. Hoover

• Decision Date: 18 February 1902
• Citation: 67 S.W. 48
• Parties: HACKNEY v. HOOVER. [1]
• Court: Kentucky Court of Appeals

67 S.W. 48

HACKNEY v. HOOVER. ^[1]

Court of Appeals of Kentucky.

February 18, 1902

Appeal from circuit court, Hardin county.

"To be officially reported."

Action by Mary Alice Hackney against Marion Hoover, trustee. Judgment upon exceptions to commissioner's report of settlement of accounts of Marion Hoover, trustee, and Mary Alice Hackney appeals. Affirmed.

John M Wilkins and J. P. O'Meara, for appellant.

M. H Marriott and L. A. Faurest, for appellee.

O'REAR J.

This appeal is prosecuted from a judgment settling the accounts of appellee as trustee under the will of E. Parr. Appellee took the large estate of the testator to hold in trust till a given period, or till the happening of a named contingency when it was to be turned over to appellant. The estate was composed of notes, cash, and real estate in this state and in Texas. The duration of the trust was about 14 years. The accounts are necessarily voluminous. The nature of the suit was both to procure a final settlement and to surcharge certain partial settlements previously made. The whole account was recast by the commissioner, and, with but one or two exceptions, confirmed by the court. Both parties appeal.

At the threshold of the case we are brought to consider whether this partial transcript suffices to bring before the court the whole of the record essential to an adjudication of the various matters alleged as errors by appellant. The appeal was granted by the lower court June 15, 1899. A schedule was filed December 15, 1900, in the clerk's office of the circuit court, and notice of the fact that day given to appellee. The transcript was filed here March 19, 1901. By the provisions of Civ. Code Prac. § 738, the appeal granted by the court below expired 20 days before first Monday in January, 1901, unless the time was extended by this court. That was not done. Appellant, therefore, asked and was granted an appeal by the clerk of this court on March 19 1901. It is under the last-named order granting the appeal that the transcript was filed and this appeal is prosecuted.

Section 737, Civ. Code Prac., provides for the making and use of partial transcripts of the record in this court in certain cases. The purpose was to bring to this court only such parts of the record as might be germane to the question upon which a decision here was asked. Saving of costs to litigants and useless labor to the court were alike in view. That this court might have before it, not only such parts of the record as appellant might choose to bring up, but such other parts as appellee deemed relevant to the question in issue, a provision is made for the filing of a schedule of the parts to be copied. Section 737, subsec. 4a. The appellant is required to file his schedule "within 90 days after granting of the appeal." He is then required to give appellee notice of such filing, if he purposes filing his transcript within 120 days after filing his schedule. Or, if he does not file his transcript within 120 days after filing the schedule, he may not give notice. In either event, it is then the duty of the appellee, if he desires additional parts of the record brought here for use on the appeal, to file his schedule, if he has had notice, within 20 days after the notice, or, if he has not had notice, then within 120 days after appellant's schedule was filed. The parts of record designated by the schedules named shall then constitute, so far as that appeal is concerned, the complete record used in the trial court. Subsection 13, § 737. In such event, no presumption could be indulged that any missing part of the record would cure or aid apparently...