Murray Motor Company v. Overby
| Decision Date | 17 December 1926 |
| Citation | 217 Ky. 198 |
| Parties | Murray Motor Company v. Overby. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error — Sixty-Day Limitation for Appeal from Declaratory Judgment May Not be Extended by Deferring Filing Bill of Exceptions (Acts 1922, c. 83, Section 5). — Sixty-day limitation of time for appeal from declaratory judgment may not be deferred by postponing filing of bill of exceptions; permission of court being required for extension of time under Acts 1922, c. 83, section 5 2. Appeal and Error — On Enacting Declaratory Judgment Act, Legislature could Restrict and Qualify Right of Appeal. — In enacting Declaratory Judgment Act (Acts 1922, c. 83), legislature could attach restrictions and qualifications to right of appeal; such right being only a matter of grace and not constitutional.
3. Appeal and Error — Appeal from Declaratory Judgment Determining Rights of Tenant Cannot Avail Unless Taken Within Sixty-Day Time Limit (Declaratory Judgment Act, Section 5). — In appeal taken by tenant from declaratory judgment, in action to determine whether one who rented building, agreeing to pay such rent as lessor could secure from another party, was entitled to renew lease, failure to file appeal within sixty days required by Declaratory Judgment Act (Acts 1922, c. 83), section 5, ousted court of jurisdiction.
Appeal from Calloway Circuit Court.
JOE H. WEAKS and J.C. SPEIGHT for appellant.
COLEMAN & LANCASTER and WHEELER & HUGHES for appellee.
Appellee and plaintiff below, George W. Overby, owned a building in Murray, Kentucky, operated as a garage. Some time in 1924 he entered into a written contract with appellant and defendant below, Murray Motor Company, leasing that building for garage purposes for the years 1925 and 1926 at a monthly rental of $111.00. A clause in that lease said: "It is further agreed and contracted in consideration hereto that at the expiration of this lease of December 31, 1926, that the second party shall have the option of leasing and renting the said building thereafter for and during an additional period of three years, upon the condition that they will pay such rent as the first party may be able to lease said building to another party." In the spring of the latter year a conference was had between the parties with reference to the renewing of the lease for three years from and after December 31, 1926, pursuant to the quoted provision; but they differ as to what occurred at it. Plaintiff contends that at the conference he stated that he had been offered and could procure a rental of $160.00 per month after the expiration of defendant's lease, and that he would not agree to a nenewal thereof except upon those terms, which defendant by its representative at that time declined to accept, and he then and there stated that plaintiff could rent the property to another to begin after the expiration of defendant's lease; while defendant's representative contradicts that testimony. At any rate, plaintiff subsequently entered into a written contract with the E.J. Beale Motor Company, whereby he rented the same building for a period of five years beginning January 1, 1927, at a monthly rental of $160.00, and Beale & Company arranged to vacate the building it was then occupying. Later defendant asserted that it would claim its right to renew its lease pursuant to the quoted provision therefrom, and plaintiff brought this action in the Calloway circuit court under the Declaratory Judgment Act for the purpose of settling the rights of the parties.
After the issues were made and evidence heard the court to whom the cause was submitted...
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