Turner v. Johnson
| Decision Date | 20 May 1896 |
| Parties | TURNER et al. v. JOHNSON. |
| Court | Kentucky Court of Appeals |
On rehearing. For former report, see 31 S.W. 1027.
W. H Holt, J. H. Hazelrigg, Wood & Day, R. A. Mitchell, C. C Turner, and G. C. Lockhart, for appellants.
Stone & Suddeth, White & Brooks, and Thomas H. Hines, for appellee.
The court, being sufficiently advised, withdrew the former opinion herein, and delivered the following:
This appeal was decided by this court June 19, 1895, and reported in 31 S.W. 1027, to which reference is made for a statement of the case. Appellee filed a petition for a rehearing, and a reargument was ordered, and, after hearing the same, the court now withdraws the former opinion. Appellee's motion to dismiss the appeal, made on the ground that appellants had collected the judgment recovered in the court below, is reversed.
Section 757 of the Civil Code of Practice authorizes this appeal but, if it did not authorize the appeal, the agreed order on page 206 of the record would preclude appellee from pleading the collection of the judgment in bar of this appeal. It appears that the judgment appealed from was rendered at the November term, 1891, of the Montgomery circuit court, and appellants' motion for a new trial made and overruled, and time given until a day in the November term, 1892, to file bill of exceptions. Afterwards, at the same term at which the motion for a new trial was overruled, the court entertained a motion by appellants to reconsider the order overruling the motion for a new trial, and reserved the consideration and decision of said motion to reconsider until a succeeding special term of the court. It seems that no determination or decision of that question was made until the November term, 1892, and until after the day fixed for filing the bill of exceptions, at which time the court refused to set aside the said order, and extended the time for filing the bill of exceptions to a certain day, at which time the bill was filed and approved. Appellee insists on his motion to strike the bill of exceptions from the record. The contention of appellee is that the court had no power to set aside the order overruling the motion for a new trial after the term at which the order was made, and that the order of court reserving the right to do so is a nullity, as is also the order of the November term, 1892, giving time to prepare and tender the bill of exceptions. The contention of appellants is that the...
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Wermeling v. Wermeling
...the Civil Code, the judgment is suspended. Louisville R. & L. Co. v. Kerr, 78 Ky. 12; Harper v. Harper, 10 Bush, 447; Turner v. Johnson, 35 S.W. 923, 18 Ky. Law Rep. 202; Miller, Appellate Practice, section 53. It is therefore held that the circuit court may grant an appeal on motion at the......
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