Western Union Tel. Co. v. Johnson

• Decision Date: 04 February 1897
• Citation: 100 Ky. 589,38 S.W. 1043
• Parties: WESTERN UNION TEL. CO. v. JOHNSON.
• Court: Kentucky Court of Appeals

38 S.W. 1043

100 Ky. 589

WESTERN UNION TEL. CO. v. JOHNSON.

Court of Appeals of Kentucky.

February 4, 1897

Appeal from circuit court, Warren county.

"To be officially reported."

Action between the Western Union Telegraph Company and Betty Johnson. There was a judgment for the latter, and the former appealed. The appeal was dismissed, and appellant moves to set aside the order of dismissal. Overruled.

Wright & McElroy, for appellant.

W. E Garth, for appellee.

LEWIS C.J.

As provided by section 734, Civ. Code, "the mode of bringing the judgment of an inferior court to the court of appeals, for reversal or modification, shall be by appeal which shall be granted, as 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 said clerk a copy of the judgment from which he appeals." But section 738 provides that, when an appeal has been granted by the court rendering the judgment "the appellant shall file the transcript in the office of the clerk of the court of appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time, as for cause shown the court may do." And section 740 provides that "if he fails to file the transcript within the time allowed by section 738, or by the court pursuant thereto, his appeal shall be dismissed."

The appeal granted in this case by the court rendering the judgment was December, 1896, on motion of appellee dismissed, because the transcript was not filed within the time prescribed by section 738; and now the present motion is to set aside that order of dismissal, upon the ground that at the time, which was during the June term, 1896, the judgment was rendered, and an appeal to the court of appeals granted, leave was given to appellant until the fifth day of the next term of the inferior court in which to present and file its bill of exceptions therein. Section 334 does authorize the court rendering a judgment to give, to the party objecting, time to procure a bill of exceptions, not beyond a day in the succeeding term, to be fixed by the court. But the time within which the appellant is required by section 738 to file the transcript cannot be computed...