Nicholas v. Hook
| Decision Date | 06 February 1942 |
| Citation | 289 Ky. 406 |
| Parties | Nicholas v. Hook et al. (two cases). |
| Court | United States State Supreme Court — District of Kentucky |
2. Exceptions, Bill of. — There is no power in a court of continuous session to extend the time for filing the bill of exceptions beyond 120 days after judgment becomes final (Ky. Stats., sec. 1016).
3. Exceptions, Bill of. — The statutory requirements as to filing of bills of exceptions are "mandatory" (Ky. Stats., sec. 1016; Civil Code of Practice, sec. 334).
4. Appeal and Error; Exceptions, Bill of; Time. — Where motion for new trial was overruled on June 21, 1940, at which time judgment became final, and circuit court on that day entered an order allowing appellants 60 days from June 22 in which to file a bill of exceptions, and an order was entered on August 20 granting an additional 60 days for filing of bill, and bill was not filed until October 19, the bill was not filed within 120 days after judgment became final and appellees' motion to strike bill from record on appeal would be sustained (Ky. Stats., sec. 1016; Civil Code of Practice, sec. 334).
5. Appeal and Error. — Where motion to strike bill of exceptions from record on appeal was sustained, the only question remaining for review was whether pleadings sustained judgment, and, where they did so, judgment was affirmed.
Appeal from Jefferson Circuit Court.
Robert E. Hogan for appellants.
Jones, Keith & Jones and Stephen S. Jones for appellee.
Before Eugene Hubbard, Judge.
Affirming.
The appellants filed separate actions against the appellees to recover damages for injuries arising out of an automobile wreck. The actions were tried together and resulted in verdicts and judgments for appellees.
Appellees docketed their appeals in this court on December 9, 1940, and on December 16, 1940, appellees moved to strike the bill of exceptions from the record. Briefs were not filed on the motion to strike and it was overruled on January 28, 1941. The question is now again presented to us in the briefs and, as the order overruling the motion to strike was merely an interlocutory order, we, of course, have power to set aside the former order and sustain the motion to strike the bill of exceptions if appellees are correct in their contention. Appellees' motion is based on the theory that the bill of exceptions was filed more than one hundred twenty days after the judgments became final, which, appellees insist, can in no event be done.
Motions for new trials were overruled on June 21, 1940, at which time the judgments became final. On that day the trial court entered an order allowing the appellants sixty days from June 22, 1940, in which to file their bill. On August 20, 1940, more than sixty days after the judgments became final, an order was entered granting an additional sixty days time for the filing of the bill. On October 19, 1940, the bill of exceptions was filed and made a part of the record and an appeal granted to this court.
It will thus be seen that if the day on which the motions for new trials were overruled is to be counted the bill of exceptions was filed one hundred and twenty-one days after the judgments became final. That this day must be counted is not open to question. See Louisville Ry. Co. v. Wellington, 137 Ky. 719, 126 S.W. 370, 128 S.W. 1077 and cases therein cited.
It is equally clear that there is no power in a court of continuous session to extend the time for filing the bill of exceptions beyond one hundred and twenty days after the judgment becomes final. Kentucky Statutes, Section 1016, so provides. Even before the enactment of this statute...
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