Hays v. Jenkins

• Decision Date: 15 February 1921
• Parties: HAYS ET AL. v. JENKINS.
• Court: Kentucky Court of Appeals

227 S.W. 797

190 Ky. 518

HAYS ET AL. v. JENKINS.

Court of Appeals of Kentucky.

February 15, 1921

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Andrew J. Jenkins against R. F. Hays and one Dawson and others. From judgment for plaintiff defendants appeal, and plaintiff moves for order dismissing appeal, to which appellant Dawson responds by offering to file transcript to perfect the appeal. Motion to dismiss appeal sustained, and motion of appellant to file new transcript overruled.

Ben Chapeze and John B. Brachey, both of Louisville, for appellants.

J. L Richardson, of Louisville, and W. G. Dearing, of Frankfort for appellee.

HURT C.J.

Appeal granted by the circuit court dismissed, with damages, and overruling motion to file transcript upon appeal granted by circuit court.

On the 22d day of November, 1919, the appellee, Jenkins, recovered a judgment for money which he was entitled to enforce by execution of fieri facias in the Jefferson circuit court chancery branch, second division, against the appellant Dawson. On the 26th day of December, 1919, Dawson prayed and was granted an appeal from the judgment to this court. The appeal was prayed and granted in the circuit court. He never perfected his appeal by filing in the clerk's office of this court a transcript of the record 20 days before the second term of this court next after the granting of the appeal, as provided by section 738, Civil Code, nor did he secure an extension of time for so doing as he might have done for cause shown, nor did he seek such an extension of time, although on the 26th day of December, 1919, the day upon which his appeal was granted, he superseded the judgment by executing before the clerk of the circuit court a supersedeas bond, etc. On the 3d day of January, 1921, after the time had expired within which Dawson could have perfected his appeal in this court by filing a transcript of the record in the clerk's office of this court, the appellee Jenkins, after notice to Dawson of his intention, filed a copy of the judgment and order granting the appeal and supersedeas bond in the clerk's office of this court, and entered a motion for an order dismissing the appeal and for damages upon the bond. Dawson responded to the motion by offering to file a transcript of the record so as to perfect the appeal granted by the court below, and as an excuse for his failure to file the transcript within the time provided by section 738, supra, averred that certain depositions in the action had been misplaced, and that he could not sooner secure a copy of the complete record. The provisions of section 740, Civil Code, seem to be mandatory, and it provides:

"And if he fail to file the transcript within the time allowed by section 738, or by the court pursuant thereto, his appeal shall be dismissed." Langhorne v. Wiley, 120 Ky. 511, 87 S.W. 266, 27 Ky. Law Rep. 908; Ewing v. Stanley, 119 Ky. 689, 63 S.W. 984, 23 Ky. Law Rep. 739; Hernstein v. Depue, 65 S.W. 805, 23 Ky. Law Rep. 1498.

The dismissal must follow in such case, although the reasons given for a failure to file the transcript within the time provided by section 738 are such that the court, if applied to as authorized by that section, would have granted an extension of time. To permit the filing of a transcript after the expiration of the time allowed would be equivalent to now granting an extension of time, which we are not authorized to do. An extension of time cannot be granted unless application is made before the expiration of the time for filing...