Louisville Chemical Works v. Commonwealth
| Decision Date | 23 September 1871 |
| Citation | 71 Ky. 179 |
| Parties | Louisville Chemical Works v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CITY COURT.
BODLEY & SIMRALL, B. H. ALLEN, J. R. DUPUY, For Appellant,
Ms Opinion, December, 1855, Commonwealth v. Lady.
Criminal Code, sections 343, 334.
3 Bibb 93, Gillespsie v. G., & c.
4 Phillips's Evidence, 775, 2d part, note 403.
1 Starkie on Evidence, page 515.
6 Bush 703, Weil & Bro. v. Silverstone.
6 Peters, 621, Crane v. Morris.
6 Connecticut, 189, Johnson v. Scribner.
2 Metcalfe, 377, Commonwealth v. McCready.
1 Monroe, 3, Buckner v. Corley.
16 B Monroe, 339, Commonwealth v. Adams.
1 Duvall, 10, Tipper v. Commonwealth.
1 S. & R. 342, Commonwealth v. Stewart.
2 Dana, 418, Commonwealth v. Hopkins.
JOHN RODMAN, Attorney-General, F. HAGAN, Pros. Att'y Lou. City Court, For Appellee,
Criminal Code, sections 342, 343, 348, 349, 269.
Act of March 3,1870, establishing new Charter for city of Louisville, Session Acts, page 30, section 54.
1 Metcalfe, 365, Murphy v. Commonwealth.
| 6 Bush, 327. | 5 Randall, 591. |
| 6 Car. & P. 292. | 8 Cowen, 146, Lansing v. Smith. |
8 Indiana, 494, Hackney v. Smith.
6 Ches. 80, Commonwealth v. Smith.
1 Bishop's Criminal Law, sections 540, 939, 1074.
2 Car. & P. 485, Rex v. Neil.
1 Burrows, 333, Rex v. White.
1 Phillips on Evidence, side page 713.
4 Hals. 26-31, State v. Potts.
3 Greenleaf's Evidence, page 375.
1 Wendell, 625, Martin v. Malin.
12 Wendell, 27, Fowler v. Loomis.
6 Connecticut, 185, Johnson v. Scribner.
| 2 Alabama, 571, 698. | 1 Starkie, 579. |
16 B. Monroe, 339, Commonwealth v. Adams.
2 Metcalfe, 376, Commonwealth v. McCready
3 Metcalfe, 517, McManama v. Garnett.
The appellants, the Louisville Chemical Works, were indicted in the Louisville City Court for a misdemeanor, and upon the trial of the indictment were found guilty, and a fine imposed upon them, by the verdict of the jury, of three thousand dollars, and a judgment rendered thereon by the court.
The appellees have made their motion in this court to dismiss the appeal, for the alleged reason that it was not prayed during the term at which the judgment was rendered. That portion of the act of the legislature passed in March, 1870, creating a new charter for the city of Louisville, referring to the city court, provides that it shall hold In this case the judgment was entered at the November term, 1870, of the court, and a motion for a new trial made at the same time, and the hearing of this motion postponed by an order of the court until the December term following. At the December term the motion for a rehearing was overruled, to which the appellants excepted, and prayed an appeal.
In misdemeanors appeals may be prosecuted by the defendant to the Court of Appeals, to reverse judgments rendered by an inferior court, where the amount of the judgment exceeds fifty dollars. " The appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon condition that the record is lodged in the clerk's office of the Court of Appeals within sixty days after the judgment." (Civil Code of Practice, section 343.)
It is an indispensable requisite that the appeal shall be prayed in the lower court during the term at which the judgment was rendered, and the record lodged with the clerk of this court within sixty days afterward; and this court, in the case of the Commonwealth v. Adams, 16 B. Monroe, dismissed the appeal because the record was not filed in the clerk's office of this court within the sixty days.
No appeal can be taken by either party, plaintiff or defendant, to this court from the judgment of an inferior court, in a case like this, without first making a motion for a new trial in the court where the error complained of occurred. Upon the hearing of the motion, if overruled, the party complaining files his bill of evidence, and is then in a condition to bring his case to this court, and not before. If either party should bring the case here upon the judgment alone, with the motion for a new trial pending in the lower court, or without having made such motion, the dismissal of the appeal would be the inevitable result. If appellants had appealed from the judgment in this case at the time it was entered, viz., at the November term, and filed their record in this court, with the motion for a new trial pending in the lower court, and continued over until the December term, we are at a loss to perceive how this court could take jurisdiction and try the appeal.
There is no judgment in fact upon the verdict of a jury until the motion for a new trial, if made in proper time, is disposed of. This motion suspends the judgment, and it has no more effect than the verdict of the jury until the application for a new trial is overruled. Any other construction of the law would deprive parties of the right to an appeal in all cases, where the court, for prudential reasons or otherwise, saw proper to continue the motion from one term to another, a right that the court can...
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