Kash v. Strong

• Decision Date: 05 October 1915
• Citation: 178 S.W. 1133,165 Ky. 843
• Parties: KASH v. STRONG.
• Court: Kentucky Court of Appeals

178 S.W. 1133

165 Ky. 843

KASH v. STRONG.

Court of Appeals of Kentucky.

October 5, 1915

Appeal from Circuit Court, Breathitt County.

Proceeding to contest an election by W. L. Kash against South Strong. Petition dismissed, and contestant appeals. Appeal dismissed.

A. F Byrd and Jas. P. Adams, both of Jackson, and O'Rear &amp Williams, of Frankfort, for appellant.

O. H Pollard and Chester Gourley, both of Jackson, and Hazelrigg &amp Hazelrigg, of Frankfort, for appellee.

HANNAH J.

At the election of November, 1913, in Breathitt county, appellant, W. L. Kash, and appellee, South Strong, were candidates for the office of county attorney; the former being the Republican nominee, and the latter the Democratic nominee. Appellee was awarded the certificate of election, and appellant instituted this contest proceeding. Upon the trial thereof in the circuit court, his petition was dismissed, and he appealed to this court.

Kentucky Statutes, section 1596a, subsection 12, provides that 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 30 days after final judgment in the circuit court. Appellant filed the record in time, but failed to execute the bond before the clerk of the circuit court as required by the statute. Because of his failure so to do, appellee has entered a motion to dismiss the appeal. This motion was not entered until after appellee had filed his brief on the merits, and for this reason appellant insists that it comes too late. It is conceded, however, by appellant that, if the execution of the bond is a jurisdictional fact, the motion should prevail.

In Clinton v. Phillips, 7 T. B. Mon. 117, the court said that, where an appeal bond is not executed within the time prescribed by the order of the court, in granting the appeal, the appeal would by this court be treated as a nullity.

In Wickliffe v. Clay, 1 Dana, 589, the appellant failed to execute an appeal bond as directed by the order of the lower court in granting the appeal, and this court treated the appeal as a nullity, upon the authority of the Clinton Case.

In Strong v. Jones, 101 Ky. 652, 42 S.W. 752, 43 S.W. 704, 19 Ky. Law Rep. 1298, which was an election contest, the contestant sought to appeal from the finding of the county contesting board to the circuit court. The statute required that the person appealing must execute bond, with surety, to pay costs and damages as in other appeals to the circuit court; and in the case of other appeals it was required to be executed in 60 days. The contestant failed to execute the bond within 60 days, and it was contended in this court that the circuit court should have dismissed the appeal when brought to it from the county contesting board, because of the failure to execute the bond. It was held by this court that the appeal should have been dismissed by the circuit court because of the failure to execute the bond within the time prescribed by law.

Patterson v. Davis, 114 Ky. 77, 70 S.W. 47, 24 Ky. Law Rep. 842, was a contested election appeal. The appellant failed to execute the bond required, within 30 days. The statute involved was the same as is now in force. Appellee moved to dismiss the appeal, and the court granted the motion, saying:

"In our opinion, the requirement of this bond within the time is made a condition precedent to a right of appeal, and, unless complied with, an appellant has no standing in this court."

Lykins v. Steele, 76 S.W. 39, 25 Ky. Law Rep. 536, was a contested election appeal, and the statute the same as is now in force. Appellant failed to execute the bond...