Roemele v. Schmidt

• Decision Date: 12 May 1910
• Parties: ROEMELE v. SCHMIDT.
• Court: Kentucky Court of Appeals

128 S.W. 65

138 Ky. 336

ROEMELE v. SCHMIDT.

Court of Appeals of Kentucky.

May 12, 1910

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division.

"To be officially reported."

Action between Ottoe Roemele and Ferdinand Schmidt. From a judgment for the latter, the former appealed. A motion to enter an order of dismissal is overruled.

Benj. F. Gardner, for appellant.

Edelen & Davis and O'Neal & O'Neal, for appellee.

BARKER, C.J.

The appellee has entered a motion in this case to dismiss the appeal granted by the court below because of the failure of the appellant to file the transcript within the time prescribed by law. It is true, the trial court granted what on its face purports to be an appeal; but at the time the order was entered the court had lost jurisdiction to entertain it. Section 734 of the Civil Code of Practice provides that an appeal shall be granted, as a matter of right, by the court rendering the judgment, on motion made during the term at which it is rendered, or thereafter by the clerk of this court. The Jefferson circuit court is one of continuous session, and 60 days, therefore, constitutes a term. Section 1042, Ky. St. (Russell's St. § 2911). After the expiration of 60 days from the time the motion for a new trial is overruled, the lower court is without authority to grant an appeal. In this case the motion for a new trial was overruled on the 10th day of August, 1909. The appeal was granted by the lower court November 1, 1909. More than 60 days having elapsed since the motion for a new trial was overruled, the order granting the appeal was a nullity, and there is, therefore, no appeal pending in this court. American Accident Company of Louisville v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; Wright v. Woolfolk, 14 Bush, 308; City of Bowling Green v. Elrod, Id. 216.

There is no reason why the appellee may not proceed to collect his judgment, as both the order granting the appeal and supersedeas issued are ineffectual to stop him.

The motion to enter an order of dismissal overruled.