Schmidt v. Mitchell

• Citation: 95 Ky. 342,25 S.W. 278
• Parties: SCHMIDT v. MITCHELL et al.
• Decision Date: 24 February 1894
• Court: Kentucky Court of Appeals

25 S.W. 278

95 Ky. 342

SCHMIDT v. MITCHELL et al.

Court of Appeals of Kentucky.

February 24, 1894

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by John Mitchell and others against the Oregon Gold Mining Company, A. L. Schmidt, and others. From a judgment against defendant Schmidt, he sought to appeal. The trial court having refused to recognize the appeal, appellant moves for a rule to show cause. Motion denied.

B. F Buckner, C. B. Seymour, Byron Bacon, and Ernest Macpherson for appellant.

Humphrey & Davie, for appellees.

HAZELRIGG J.

On January 31, 1894, the appellant, Schmidt, filed in the office of the clerk of this court a copy of the judgment against him in the Jefferson circuit court, law and equity division, in the case of John Mitchell and others against the Oregon Gold Mining Company and others, and was granted an appeal therefrom by the clerk, who also issued a supersedeas upon the execution by the appellant of the bond required by law. The inferior court declining to stay proceedings upon the judgment appealed from, the appellant seeks a rule against the judge of that court and certain of the appellees to show cause why they have disobeyed the order of supersedeas. It is evident that, unless this order were absolutely void, it was the duty of the court below and all others to obey it; and, if they wished to avoid it, by reason of any irregularity in the manner of its issual, a motion to quash would have been the proper remedy. The inquiry therefore, is as to the validity of the order of supersedeas.

The judgment sought to be appealed from was rendered on January 30, 1894, the day before the appeal was granted and the supersedeas was issued. This, therefore, was during the term of the inferior court at which the judgment was rendered. Section 734 of the Civil Code 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 the court of appeals on application of either party or his privy, upon filing in the office of said clerk a copy of the judgment from which he appeals." Therefore the granting of the appeal and the issual of the supersedeas were unauthorized and these acts were not mere irregularities, to be taken advantage of by motions to dismiss the appeal or to discharge the supersedeas. They are void, and therefore may be disregarded. If the bond were insufficient as to the surety offered, or defective in securing the rights of the appellee, a motion to discharge would have been the proper remedy; or if the appeal were improperly granted, or the appellant's right to prosecute it further had ceased,...