Turner v. Wickliffe

• Decision Date: 14 February 1912
• Citation: 143 S.W. 406,146 Ky. 776
• Parties: TURNER v. WICKLIFFE.
• Court: Kentucky Court of Appeals

143 S.W. 406

146 Ky. 776

TURNER v. WICKLIFFE.

Court of Appeals of Kentucky.

February 14, 1912

Appeal from Circuit Court, Ballard County.

Action between Henry F. Turner and J. B. Wickliffe, assignee of Farmers' Bank of Wickliffe. On motion to dismiss appeal with damages. Motion to dismiss granted, and motion for damages overruled.

J. B. Wickliffe, pro se.

HOBSON, C.J.

Section 749 of the Code regulating supersedeas on appeals to this court is as follows: "The bond must be executed before the clerk of the court rendering the judgment if the appeal be granted by that court. In other cases it must be executed before the clerk of the Court of Appeals. The clerk of the court rendering the judgment shall issue the supersedeas if the bond be executed before him before the expiration of the time for filing a copy of the record in the clerk's office of the Court of Appeals, pursuant to section 738. In other cases it must be issued by the clerk of the Court of Appeals."

This appeal was granted September 6, 1911. The time for filing the record in this court expired in December, 1911. The bond was executed before the clerk of the circuit court on February 5, 1912, and the supersedeas was issued by him on the same day. He had no power then to issue a supersedeas. He had power then to take the bond, but the supersedeas could properly then be issued only by the clerk of this court. The supersedeas, being issued without authority, was void, and did not suspend the execution of the judgment. No damages can therefore be awarded.

The motion to dismiss the appeal with costs is sustained, the transcript not having been filed in time; but the motion for 10 per cent. damages is overruled.