Hernstein v. Depue

• Decision Date: 06 December 1901
• Parties: HERNSTEIN v. DEPUE. [1]
• Court: Kentucky Court of Appeals

65 S.W. 805

HERNSTEIN v. DEPUE. ^[1]

Court of Appeals of Kentucky.

December 6, 1901

Appeal from circuit court, Lewis county.

"Not to be officially reported."

Motion to dismiss appeal. Granted.

R. D Wilson and A. E. Cole & Sons, for appellant.

W. C Halbert, for appellee.

PAYNTER C.J.

The question is as to whether a motion to dismiss the appeal should be sustained, as the judgment was rendered on January 26, 1901, and the appeal granted on that day, but no transcript has yet been filed. Section 738, Civ. Code Prac provides that the appellant shall file the transcript in the office of the clerk of the court of appeals at least 20 days before the first day of the second term of this court next after the granting of the appeal, unless the court extend the time, as, for cause shown, the court may do. There has been no order of this court extending the time for filing the transcript. Section 740, Civ. Code Prac., provides that if the transcript is not filed within the time allowed by section 738 the appeal shall be dismissed. The provision of the Code is mandatory, and this court has no discretion in the matter. It is made to appear that the reason the transcript was not filed is that the appellant and appellee have been talking through their attorneys of a compromise and settlement of the controversy, and by reason of that they (attorneys) had been thrown off of their guard, and did not anticipate a motion like the one under consideration.

We are of the opinion that the facts will not justify the court in disregarding the mandatory provisions of the Code. Even if the party having the judgment had discussed a compromise with the intention that the time should pass for filing the transcript, and then move to dismiss the appeal, we could not refuse to sustain the motion. The only way that the postponement of the time for filing a transcript can be had is for an appellant to make a motion before the time expires during which it should be filed, and obtain an order extending the time. This court has decided that after the time has expired it is without power to make such an order.

The appellant is entitled to have an appeal granted by the clerk of this court at any time within two years from the time the judgment of the lower court was rendered.

The motion to dismiss the appeal must be sustained.

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Notes:

^[1] Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state...