Wermeling v. Wermeling
| Decision Date | 17 April 1928 |
| Parties | Wermeling v. Wermeling. |
| Court | United States State Supreme Court — District of Kentucky |
1. New Trial. — When motion for new trial is filed within time allowed by Civil Code of Practice, sec. 342, judgment is suspended.
2. Appeal and Error. — In view of Civil Code of Practice, sec. 342, relating to time for applying for new trial, circuit court may grant appeal on motion at term of court at which judgment becomes final by denial of such motion, and in courts of continuous session within 60 days thereafter under Ky. Stats., sec. 1014.
3. Appeal and Error. — During term of court at which judgment is rendered, or motion for new trial, made under Civil Code of Practice, sec. 342, is overruled, power of circuit court to grant appeal is exclusive, and until such term or time expires no appeal can be granted by clerk of Court of Appeals.
4. Appeal and Error. — After expiration of term of circuit court at which judgment was rendered or became final, exclusive right to grant appeal rests with clerk or Court of Appeals under Civil Code of Practice, sec. 734.
5. Appeal and Error. — Under Civil Code of Practice, sec. 734, circuit court's attempt to grant appeal after term at which judgment becomes final is nullity, and supersedeas bond executed on such void order is nullity and may be disregarded.
6. Appeal and Error. — Where appeal has been granted by court rendering judgment within time allowed by Civil Code of Practice, sec. 734, or Ky. Stats., sec. 1014, under Civil Code of Practice, sec. 748. supersedeas bond may be executed before clerk of that court at any time before expiration of limit fixed by section 738 for filing transcript in Court of Appeals.
7. Appeal and Error. — Supersedeas bond required by Civil Code of Practice, sec. 748, executed before appeal is granted by court rendering judgment within time allowed by section 734 or Ky. Stats., sec. 1014, or after time fixed for filing transcript by Civil Code of Practice, sec. 738, has expired, is void.
8. Appeal and Error. — Execution of supersedeas bond and issuance of supersedeas provided for by Civil Code of Practice, sec. 748, suspends all rights under judgment until appeal is disposed of by appellate court.
9. Appeal and Error. — After appeal has been properly granted either by lower court or clerk of Court of Appeals under Civil Code of Practice, sec. 734, or Ky. Stats. sec. 1014, under Civil Code of Practice, sec. 738, appellant must file transcript of record in office of clerk of Court of Appeals at least 20 days before first day of second term of Court of Appeals next after granting appeal unless Court of Appeals extends time, and unless time is extended transcript cannot be filed after time expires, nor can Court of Appeals then make extension of time.
10. Appeal and Error. — Civil Code of Practice, sec. 740, providing that no appeal shall be docketed by clerk of Court of Appeals until appellant complies with provisions of section 739, and, if he fails to file transcript within time allowed by section 738 or by court pursuant thereto, appeal shall be dismissed, is mandatory.
11. Costs. — Ten per cent. damages allowed against appellant under Civil Code of Practice, sec. 764, on affirmance or dismissal of appeal from judgment for payment of money, collection of which in whole or in part has been superseded, as provided in sections 747-752, both inclusive, are awarded on or after filing of mandate of Court of Appeals in circuit court.
12. Costs. — Ten per cent. damages allowed against appellant by Civil Code of Practice, sec. 764, on affirmance or dismissal of appeal from judgment for payment of money, collection of which in whole or in part has been superseded as provided by sections 747-752, may be awarded on repeated appeals from same judgment.
13. Costs. — If appellant does not file transcript or obtain extension of time therefor within period fixed by Civil Code of Practice, sec. 738, appeal will be dismissed with damages pursuant to section 764, where supersedeas has issued.
14. Costs. — If appeal was granted without authority or supersedeas bond was executed when no right existed to take it, no damages can be allowed under Civil Code of Practice, sec. 764, on dismissal of appeal for failure to file transcript or obtain extension of time therefor within period fixed by section 738.
15. Appeal and Error. — Failure to move to dismiss appeal because transcript of record was not filed within time prescribed by Civil Code of Practice, sec. 738, or extension thereof until after case has been submitted on final hearing waives right to dismissal of appeal on such ground.
16. Courts. — If reason for rule of law is absent, rule itself is not applied.
17. Appeal and Error. — Fact that appeal granted by clerk of Court of Appeals under Civil Code of Practice, sec. 734, was perfected, submitted, and decided did not waive right to have appeal granted by lower court, which had not been perfected pursuant to section 738, dismissed.
18. Appeal and Error. — Appeal properly granted by lower court under Civil Code of Practice, sec. 734, whether regarded as lapsed or abandoned, may be dismissed at any time on motion for failure to file transcript pursuant to section 738.
19. Appeal and Error. — Where appeal from money judgment was granted by lower court pursuant to Civil Code of Practice, sec. 734, and supersedeas bond, given pursuant to section 748, and appeal was abandoned, after affirmance of judgment on appeal granted by clerk of Court of Appeals, appeal granted by lower court should be dismissed or supersedeas vacated on motion by order of Court of Appeals duly entered of record in lower court, giving appellee remedies on bond or otherwise to enforce judgment.
20. Costs. — Where appeal from money judgment was properly granted by lower court under Civil Code of Practice, sec. 734, and judgment was duly superseded by appellant pursuant to section 748, before time fixed by section 738 for filing transcript in Court of Appeals, and such transcript was never filed, but judgment was affirmed on appeal granted by clerk of Court of Appeals, appellee on motion was entitled to have abandoned appeal dismissed with damages pursuant to section 764.
Appeal from Jefferson Circuit Court
FRANK A. ROPKE for appellant.
MORTON K. YONTS for appellee.
Dismissing appeal.The motions submitted in this case raise questions of appellate practice upon which we have concluded to review our decisions and restate the principles deducible therefrom.
On May 9, 1925, Margaret Wermeling recovered in the Jefferson circuit court a judgment for money against Henry Wermeling. An appeal to this court was granted by the lower court on May 28, 1925, and a supersedeas bond was executed before the clerk on the same date and supersedeas issued.
A transcript of the record was filed in this court on September 21, 1925, but instead of prosecuting the appeal granted by the circuit court, as he might have done, the appellant then sought and was granted an appeal by the clerk of this court. The latter appeal was submitted on January 6, 1926, and the judgment was thereafter affirmed. Wermeling v. Wermeling, 217 Ky. 126, 288 S. W. 1050.
The appellee, on February 3, 1928, entered a motion in this court to dismiss the appeal granted by the lower court, and abandoned by the appellant. The motion was overruled on the authority of Nickell v. Citizens' Bank of Kuttawa, 109 Ky. 641, 60 S.W. 408, 22 Ky. Law Rep. 1257. Thereafter, during the same term of this court, a motion was made to dismiss the appeal granted by the clerk of this court in which the judgment of affirmance was entered, and upon consideration thereof the court denied the motion, but then set aside its previous order overruling the motion to dismiss the appeal granted by the circuit court, and dismissed that appeal with damages. The court also directed that this opinion be prepared.
It is provided by section 734 of the Civil Code that an appeal shall be granted as a matter of right to a party or privy against a party or privy 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 the clerk a copy of the judgment from which he appeals. By section 1014, Kentucky Statutes, courts of continuous sessions are authorized to grant appeals within 60 days after the judgment. Appellant is required by section 739 of the Code to file a statement of the facts there indicated.
When a motion for a new trial is filed within the time allowed by section 342 of 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 term of court at which the judgment becomes final by the denial of motion for a new trial, and, in courts of continuous session, within 60 days thereafter. Wright v. Woolfolk, 14 Bush, 308; Roemele v. Schmidt, 138 Ky. 336, 128 S.W. 65; Louisville Chemical Works v. Com., 8 Bush, 179; American Accident Co. v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; City of Louisville v. Muldoon, 43 S.W. 876, 19 Ky. Law Rep. 1386.
During the term of court at which a judgment is rendered, or the motion for a new trial is overruled, the power of the circuit court to grant an appeal is exclusive, and until that term or time expires, no appeal can be granted by the clerk of this court. Kelly v. Toney, 95 Ky. 338, 25 S.W. 264, 15 Ky. Law Rep. 718; Schmidt v. Mitchell, 95 Ky. 344, 25 S.W. 278, 15 Ky. Law Rep. 768; American Accident Co. v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; City of Newport v. Newport Gaslight Co., 92 Ky. 445, 17 S.W. 435, 13 Ky....
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