Sweeney v. Coulter

• Decision Date: 31 October 1900
• Citation: 58 S.W. 784,109 Ky. 295
• Parties: SWEENEY v. COULTER. [1]
• Court: Kentucky Court of Appeals

58 S.W. 784

109 Ky. 295

SWEENEY v. COULTER. ^[1]

Court of Appeals of Kentucky.

October 31, 1900

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by Gus G. Coulter against John S. Sweeney to recover possession of the books and papers of the office of state auditor, and to have the defendant declared a usurper. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O Bradley, W. H. Yost, and T. L. Edelen, for appellant.

Jas Andrew Scott and John K. Hendrick, for appellee.

PAYNTER J.

At the November election, 1899, the appellee, Coulter, and the appellant Sweeney, were opposing candidates for the office of auditor of this commonwealth. The state board of election commissioners issued to the appellant, Sweeney, the certificate of election, and thereafter the appellee Coulter, contested his right to the office before that board, the law conferring upon it the authority to try the contest. This board heard the contest, and adjudged that the appellant had not, but that the appellee had, been elected to that office, and duly entered its judgment in accordance with its finding. The appellant continuing to occupy the rooms in the executive building where the duties of the office of auditor are performed, and refusing to surrender it, this action was instituted to enforce the judgment of the board of election commissioners, and have the appellant declared a usurper, and that the books and papers of the office be turned over to the appellee. The court below adjudged that this should be done, and from that judgment the appellant prayed an appeal in that court, which was granted, and then executed a supersedeas bond. The appellee thereupon filed a transcript of the record here, and afterwards moved to affirm the case as a delay case. Pending that motion the appellant moved to dismiss his appeal without prejudice. Objections were made to these motions. The motions were made in May of the present year, but were not then disposed of. On September 17th the appellee entered a motion to advance and submit and have it affirmed as a delay case. The appellant again entered his motion to dismiss his appeal without prejudice. The case was set for oral argument for October 6th, and, not having been argued, was submitted on the motions and on the merits with 10 days leave to brief.

The first question presented is as to the right of the appellant to dismiss his appeal without prejudice. Our Code of Practice provides that a plaintiff in an action may dismiss it without prejudice, but this court has repeatedly held that this cannot be done where it results to the prejudice of some one interested in its prosecution. Numerous cases might be cited on this question. The only two reported cases cited by counsel for appellant are Cobb v. Waggoner, 17 B. Mon. 562, and City of Bowling Green v. Elrod, 14 Bush, 216, which substantially hold that, where an appeal is granted in the court below, and is dismissed because the appellant fails to file the transcript within the time prescribed by law, he is not thereby barred from having the appeal granted by the clerk of this court. The rule announced is correct. Where the court has permitted the appellant to dismiss his appeal which he prayed in the court below, or where the court has done so, he can again take his appeal within two years from the rendition of the judgment. That, however, is not the question involved on the motion to dismiss on this appeal. Neither does the motion here involve the same question as would be involved where the plaintiff in the court below sought to obtain a judgment against the defendant, and then elected, before trial, to dismiss his action without prejudice. In the latter case the defendant has acquired no right to insist that the plaintiff shall proceed in his action to try his right to recover a judgment against him. In this case the appellee had recovered a judgment against the appellant. The relief which was sought in the court below had been granted, and, with the view of suspending the execution of the judgment, a supersedeas bond was executed and supersedeas issued. The purpose of the appeal is to have this court adjudge that the lower court erred in rendering the judgment complained of. The appellant seeks to have that judgment reversed, and obtained a supersedeas bond with the view of preventing its enforcement until the question could be adjudged. While he could have waited two years before prosecuting his appeal if he had not executed a supersedeas bond, he elected to prosecute it at once, and superseded the judgment. When the enforcement of the judgment was suspended by the supersedeas, the appellee became interested at once in a speedy determination of the appeal. If the appeal was prosecuted for delay merely, the appellee was entitled to have it affirmed as a delay case. Section 741, Civ. Code Prac., reads as follows: "The appellee may file an authenticated copy of the record in the clerk's office of the court of appeals with the same effect as if filed by the appellant." The intention of the legislature was to give the appellee the right to thus file a transcript, that the appeal might be speedily terminated. Therefore, when the transcript is so filed, the effect is the same "as if filed by the appellant." So we have a judgment superseded, and an appeal prosecuted therefrom and pending in court, where the appellee exercises his right in filing a transcript of the record. He has paid the cost of the transcript. When everything has been done to bring the errors complained of before this court for review, and the defendant has been damaged by the supersedeas, and been forced to make an expenditure for the transcript of the record, why should the appellant be permitted to dismiss his appeal where the court has jurisdiction of it, and everything has been done that is essential to bring it before this court? There is no provision of law to regulate the matter of dismissing appeals by the appellant without prejudice; neither is there any rule of this court which attempts to regulate it. Therefore the question arises, what are the rights of the parties in the light of the facts of this case? The appellee would be greatly prejudiced by having the enforcement of the judgment suspended, but the appellant is not in the slightest degree prejudiced by not being allowed to dismiss his appeal, because the steps taken by the appellant and by the appellee collectively complete the steps necessary to have the issue tried by this court. In the absence of a statute or a rule of this court regulating the matter, the court should not permit the appeal to be dismissed. In any case, to allow the appeal to be dismissed under the condition of the record in this case would be to prejudice the defendant, and trifling with the court, and especially in this character of case, where the public interest demands as speedy settlement of it as can be done consistent with the law and rules of the court.

We are not aware that the precise question here involved has ever been adjudged by this court. In State v. Moriarty, 20 Iowa 595, it appeared that the appeal had been prosecuted by the state, and the attorney general asked that the appeal be dismissed. It did not appear that the appellee would be prejudiced by the dismissal of the appeal, and in referring to the right of the appellant to dismiss his appeal the court said: "This is the right of the state as well as of any other appellant, unless it appears that the appellee will be injured or prejudiced thereby. Such prejudice or injury is not shown in this case, and the appeal is therefore dismissed, at appellant's cost." In Merrill v Dearing, 24 Minn. 179, it appeared that the appellee moved to affirm the judgment under some rule of the court. In opposition to the motion the appellant presented a notice which had been executed upon the appellee that the appeal was or would be dismissed, and in passing upon these motions the court said: "There is no statute or rule of court controlling the practice in relation to the dismissal or withdrawal of appeals to this court. Where there is no such statute or rule of court, we think that, if an appellate court has once got jurisdiction of a cause, it cannot be deprived of that jurisdiction, and the respondent of a decision, at the mere will of the appellant." In Whitney v. Cook, 99 U.S. 607, 25 L.Ed. 446, there was a motion under the rule of the court to affirm the judgment, and which rule also authorized to be united with a motion to affirm a motion to dismiss. The court said: "This implies that there shall appear on the record at least some color of right to a dismissal. That is not pretended in this case. We are therefore compelled to deny the motion. Our experience teaches that the only way to discourage frivolous appeals and writs of error is by the use of our power to award damages, and we think this a proper case in which to say that hereafter more attention will be given to that subject, and the rule enforced both according to its letter and spirit. Parties should not be subjected to the delay of proceedings for review in this court without reasonable cause, and our power to make compensation to some extent for the loss occasioned by an unwarranted delay ought not to be overlooked." In Shannon v. Barnwell, 4 Mart. (La.) 35, it appeared that the plaintiff in the judgment moved to affirm with damages, and the defendant...