Ward v. Martin
| Decision Date | 26 November 1929 |
| Citation | 22 S.W.2d 95,231 Ky. 696 |
| Parties | WARD v. MARTIN, Sheriff. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Floyd County.
Action by M. L. Ward against T. Y. Martin, Sheriff of Floyd County. From a judgment of dismissal, plaintiff appeals. Reversed with directions.
Edward P. Hill, Jr., and J. C. Hopkins, both of Prestonsburg, for appellant.
J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for appellee.
At the April, 1929, term of the Floyd circuit court, one Leslie Thompson was convicted of violating some provision of our prohibition statute (Laws 1922, c. 33), and was given a fine of $100 and 30 days' imprisonment in the county jail. A motion by him for a new trial was made, and, while it was pending and undetermined, and on April 19, 1929, he executed a supersedeas bond with the appellant, Ward, as his surety with the intention and purpose of obtaining a review of the trial by this court, pursuant to the provisions of section 348 of the Criminal Code of Practice, which is section 2 of an enactment of the Legislature approved March 27, 1926, and is chapter 34, p. 144, of the Session Acts for that year. It provides, in substance, that an appeal as a matter of right in judgments of convictions in misdemeanor prosecutions shall not thereafter exist, but that defendant, or the commonwealth, may obtain a transcript of the record and file it with the clerk of this court within the prescribed time with a motion for an appeal, and, if the court concludes that prejudicial error was committed, it will grant the appeal; otherwise the motion will be overruled and the judgment automatically affirmed. So that the trial court whose judgment is sought to be reviewed by this court no longer has jurisdiction to grant appeals in such cases.
On the 23d day of April, or four days after the supersedeas bond was executed and approved by the clerk of the circuit court, the motion for a new trial was overruled, but Thompson abandoned his appeal and did not file the transcript with the clerk of this court within the time allowed and the judgment of the circuit court thereby became final. On the 13th day of September, 1929, the clerk of the circuit court issued an execution on the supersedeas bond, executed in the manner described, pursuant to the provisions of chapter 32, Acts of 1926, p. 138, which gave to such bonds in such cases the force and effect of a replevin bond upon which execution might issue. This action was then filed in the Floyd circuit court by appellant, Ward, who was the surety in the bond, against the sheriff of the county, to enjoin that officer from levying or enforcing the execution, upon the ground that the bond upon which it issued was void because executed before the motion for a new trial was acted on. The court sustained a demurrer to the petition, and, plaintiff declining to plead further, the action was dismissed, and, complaining of that judgment, plaintiff prosecutes this appeal.
Plaintiff's counsel rely upon this court's opinions in the cases of Louisville & Nashville R. R. Co. v. Smith's Adm'r, 178 Ky. 681, 199 S.W. 805; Wilson v. Hite's Ex'r, 154 Ky. 61, 157 S.W. 41, 42; Torbitt & Castleman v. Middlesboro Grocery Co., 147 Ky. 343, 144 S.W. 16; Turner v. Wickliffe, 146 Ky. 776, 143 S.W. 406; Asher v. Cornett, 126 Ky. 569, 104 S.W. 347, 31 Ky. Law Rep. 957; Leonard's Adm'r v. Cowling, 121 Ky. 631, 87 S.W. 812, 89 S.W. 131, 27 Ky. Law Rep. 1059, 28 Ky. Law Rep. 145; American Accident Co. v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; and Jones v. Green, 12 Bush, 127. In neither of them (except the Wilson Case) was the direct question here involved presented or determined. However, the principle here contended for was discussed in some of them. In all of them, including the Wilson Case, the supersedeas bond was executed and approved before an officer who had no authority at the time to take and approve it, either because no appeal had been granted by the court in which the officer was the clerk, or it had been taken and approved after the expiration of the time for the granting of an appeal by that particular court. The court held in each of them that a supersedeas bond executed under such circumstances was void as a statutory bond, but it was also broadly intimated that it might be enforceable as a common-law bond, but which question was not expressly determined.
In the Wilson Case the bond was signed by the surety before the motion for a new trial was acted on, and also before the trial court, which had the right to grant the appeal, had done so, and this court held that ordinarily the bond executed...
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