Paducah & I.R. Co. v. Albritton

• Decision Date: 23 February 1917
• Citation: 191 S.W. 879,174 Ky. 270
• Parties: PADUCAH & I. R. CO. v. ALBRITTON.
• Court: Kentucky Court of Appeals

191 S.W. 879

174 Ky. 270

PADUCAH & I. R. CO. v. ALBRITTON.

Court of Appeals of Kentucky.

February 23, 1917

Appeal from Circuit Court, McCracken County.

Action between L. A. Albritton and the Paducah & Illinois Railroad Company. Judgment for Albritton, and the Railroad Company appeals. On motions by appellant to place with the record the records in other cases and to consolidate the cases, and motion by appellee to dismiss the appeal. Appellant's motions overruled, and appeal dismissed without prejudice.

Wheeler & Hughes, of Paducah, for appellant.

D. G Park, of Paducah, for appellee.

SETTLE C.J.

This case is submitted: (1) Upon appellant's motion to direct the clerk of this court to place with the record of this appeal the records now in this court in the appeals of Husbands v. Paducah & I. R. Co. and Fowler v. Paducah &amp I. R. Co., 195 S.W. 831, being cases 38 and 39 on the September, 1916, docket; (2) upon appellant's motion to consolidate this action with cases 38 and 39, above referred to; and (3) upon appellee's motion to dismiss the appeal.

1. Rule 7 of this court (154 S.W. xiii) reads as follows:

"When the record of a former appeal in the same cause is necessary to the decision of a subsequent appeal, or when a record already in this court is made part of a record in another case, and not copied into the transcript, the attorney for the appellant must see to it, on pain of having the appeal dismissed, that such old record is placed with the new record before the cause is submitted."

The rule refers: First, to records of former appeals in the same cause; and, secondly, to those cases where a record already in this court is made a part of a record in another case, and not copied into the transcript. In either case the old record may be placed with the new record and sent out with it.

It is clear that this motion is not within the purview of the rule since all the cases are new cases, and neither of them was an old case and made a part of a record in another case, within the meaning of the rule. To save costs, rule 7 contemplates the using of an old record upon the second appeal of the same case, or an old record already in this court which has in the circuit court been made part of the record in another case, but not copied into the transcript. But the motion now made proposes to apply the rule to several new cases which do not come within either class of cases covered by the rule. This motion is overruled.

2. We learn from the briefs that appellants' second motion is predicated upon the idea that this case and cases 38 and 39 above mentioned, were heard...