Louisville Rock and Lime Company v. Kerr, &C.
| Decision Date | 13 June 1879 |
| Citation | 78 Ky. 12 |
| Parties | Louisville Rock and Lime Company v. Kerr, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE JEFFERSON COURT OF COMMON PLEAS.
MESSRS. LANE & HARRISON FOR APPELLANT.
MESSRS. BEATTIE & WINCHESTER FOR APPELLEES.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
May 7th, 1878, the appellant recovered a verdict and judgment against the appellees in the Jefferson Court of Common Pleas. May the 9th the appellee filed grounds and moved the Court for a new trial, which was overruled June 8th. June 15th the appellees entered a motion to set aside the order overruling the motion for a new trial and for a rehearing of said motion, and July 20th the Court set aside the order of June 8th, and granted a new trial.
The appellant, regarding the order granting a new trial as void, moved the Court to set it aside; but the motion was overruled, and this appeal is prosecuted to have said order reversed.
Counsel agree that the Common Pleas Court has the same power over its judgments and orders for the period of sixty days which Circuit Courts have over their judgments and orders during the term at which they are rendered and made.
More than sixty days elapsed between the date of the judgment and the making of the order granting a new trial, and it is clear that the Court then had no power to grant a new trial unless the entry of the motion to set aside the order denying a new trial had the effect to prolong the duration of the Court's power over the judgment.
A motion for a new trial suspends the judgment, and may be continued and passed upon at a subsequent term. But it by no means follows that a motion to set aside an order overruling a motion for new trial has a like effect. If this were so, then no reason is perceived why motions and counter-motions may not be continued indefinitely.
When a motion for new trial has been made and overruled, the only redress of the defeated litigant is by appeal. It is true, the Court, having power over its judgments and orders during the term, or, in the case of the Jefferson Court of Common Pleas, for sixty days, has power within that time to set aside an order overruling a motion for a new trial; but that power of the Court cannot be extended beyond the period limited by the mere entry within the time of a motion to set aside the order refusing a new trial. Such practice is not only unauthorized by anything in the Code or in the act relating to the Common Pleas Court, but is contrary to the recognized...
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Wermeling v. Wermeling
...When a motion for a new trial is filed within the time allowed by section 342 of the Civil Code, the judgment is suspended. Louisville R. & L. Co. v. Kerr, 78 Ky. 12; Harper v. Harper, 10 Bush, 447; Turner Johnson, 35 S.W. 923, 18 Ky. Law Rep. 202; Miller, Appellate Practice, § 53. It is th......
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Gordon v. Commonwealth
...to finally determine the points and questions raised. This practice has been expressly approved in civil cases many times. Louisville Rock Lime Co. v. Kerr, 78 Ky. 12; Harper v. Harper, 10 Bush, 447; Turner v. Johnson, 35 S. W. 923, 18 Ky. Law Rep. 202; Trapp v. Aldrich, 67 S. W. 834, 23 Ky......
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Trapp v. Aldridge
...the motion for a new trial was made in proper time, the effect of which was to suspend the judgment until it was overruled. See Lime Co. v. Kerr, 78 Ky. 12, Louisville Chemical Works v. Com., 71 Ky. 182. In the latter case this court said: "There is no judgment in fact until the motion for ......
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Commonwealth v. Tarvin
...motion for a new trial suspends the judgment in a civil case, and may be continued and passed on at a subsequent term. See Louisville Rock Lime Go. v. Kerr, 78 Ky. 12; Harper v. Harper, 10 Bush, 447; Turner Johnson (Ky.) 35 S.W. 923; and Trapp, etc., v. Aldrich (Ky.) 67 S.W. 834. We are the......