Rush v. Handley

• Citation: 97 S.W. 726
• Parties: RUSH v. HANDLEY ET AL.
• Decision Date: 23 November 1906
• Court: Kentucky Court of Appeals

97 S.W. 726

RUSH v. HANDLEY ET AL.

Court of Appeals of Kentucky.

November 23, 1906

Appeal from Circuit Court, Hardin County.

"Not to be officially reported."

Action by Albert Rush, as committee of George W. Upton, an incompetent, against William Handley and another. From a judgment in favor of defendants, plaintiff appeals. On motion to dismiss. Denied. Judgment reversed, and cause remanded.

James Montgomery, for appellant.

L. B Handley and J. P. O'Meara, for appellees.

NUNN J.

The first question presented on this appeal is whether appellees' motion to dismiss should be sustained. The ground upon which the motion is based is that appellant did not file the transcript in this court within two years from the date of the judgment appealed from. The judgment in question was rendered June 19, 1902. Appellant was granted an appeal on the 2d day of September, 1903, and thereupon filed a copy of the judgment, and had summons issued and served on the appellees. He also obtained an order of this court allowing him to prosecute the appeal in forma pauperis. Several minor motions were made and passed upon, and on the 14th day of June, 1904, five days before the lapse of two years from the date of the judgment, the appeal was dismissed on motion of appellant, and on that day another appeal was granted him by this court. The transcript of the record was not filed until the 13th of December, 1904, which was not within two years from the date of the judgment. The appellees claim that, for this reason, the appeal should be dismissed and cite the case of Berends v. Bellevue Water & Fuel Gas Light Co., 82 S.W. 983, 26 Ky. Law Rep. 912, in support of this contention. In that case the appeal was granted by the lower court, but not prosecuted within two years after the judgment was rendered, and no extension of time was ever asked of, or granted by, this court for the filing of the transcript of the record. In the case at bar, however, the appeal was granted in this court within two years from the date of the judgment, and the transcript of the record was filed, at least, 20 days before the first day of the second term of this court next after the granting of the appeal.

A party is entitled, as a matter of right, to an appeal from a judgment at any time within two years next after the right to appeal first accrues. Section 738 of the Code of Practice reads as follows: "The appellant shall file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time, as, for cause shown, the court may do." This section is applicable to appeals granted by the clerk of the Court of Appeals, and, also, to those granted by the inferior courts; and in each case the appellant is required to file the transcript in the office of the clerk of the Court of Appeals, at least 20 days before the first day of the second term of the court next after the granting of the appeal by...