Willis v. Witt

• Decision Date: 19 January 1910
• Citation: 124 S.W. 362
• Parties: WILLIS v. WITT.
• Court: Kentucky Court of Appeals

124 S.W. 362

WILLIS v. WITT.

Court of Appeals of Kentucky.

January 19, 1910

Appeal from Circuit Court, Madison County.

"Not to be officially reported."

Action between John Willis and James H. Witt. From a judgment for the latter, the former appeals. Dismissed.

J. C. & D. M. Chenault, for appellant.

Grant E. Lilly, for appellee.

LASSING, J.

The judgment appealed from in this case was rendered at the February term, 1908, of the Madison circuit court. Appellant was then given until the following May term to tender his bill of evidence and exceptions. Within the time given the bill of evidence was tendered, but was not approved and filed until the February term, 1909. The appeal was not filed until May 4, 1909, which was not within the time, as provided for by section 738 of the Civil Code of Practice, within which it might be taken. The fact that appellant was given time within which to prepare and tender his bill of evidence and exceptions did not prevent the running of the statute, as was expressly held in the case of Western Union Telegraph Co. v. Johnson, 100 Ky. 589, 38 S.W. 1043, 18 Ky. Law Rep. 982. The statute begins to run when the motion for a new trial is overruled. The only way in which the time for filing an appeal granted by the lower court can be extended is by order made upon application in this court. If, for any reason, a litigant finds that he is unable to file his appeal in this court within the statutory period, he must secure an order from this court extending the time within which to file his appeal, or lose his right.

This not having been done, the appeal is dismissed.