131 Ky. 433 | Ky. Ct. App. | 1909
Lead Opinion
Opinion op the Court by
Overruling motion to dismiss.
R, Boyd recovered a judgment against Nathan Buchanan, etc., for a tract of land. After the recovery of the judgment, Boyd died, and after his death, and within two years from the entry of the judgment, Buchanan, etc., sued out an appeal from it in this court, making R. Boyd and R. Boyd, Jr., as his executor, parties appellee. The executor has entered-a motion to dismiss the appeal. In response to this •motion appellant relies on Hopkins v. Hopkins, 91 Ky. 310, 15 S. W. 854, 12 Ky. Law Rep. 945; Magee v. Frazier, 51 S. W. 174, 21 Ky. Law Rep. 254. He also insists that R. Boyd, Jr., is one of the real representatives of R. Boyd, and that as to him at least the motion should be overruled. In the cases cited there was an appeal from a personal judgment. The executor was the 'only necessary party appellee. Here we have a real action, and the real representatives of the deceased are necessary parties to the appeal..
The motion to dismiss the appeal is on present showing overruled
Rehearing
Opinion on Rehearing by
On September 29, 1906, R. Boyd recovered a judgment against Nathan Buchanan, etc., for a tract of laud. After the entry of the judgment Boyd died; and after his death, on September 19,1908, Buchanan, etc., filed with the clerk of this court a copy of the judgment, and sued out an appeal from it before him, designating in the statement filed R. Boyd -and R. Boyd, Jr., as his executor the parties appellee.- On
By section 745 of the Civil Code of Practice an appeal shall not be granted except within two years, next after the right to appeal first accrued. By section 734 of the Civil Code of Practice an appeal is granted as a matter of right by the cleik of the1 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 739 of the Code the appellant must file with the transcript a statement showing, among other things, the names of the appellants and the names of the appellees, and by section 740 an appeal shall be docketed by the clerk until the appellant files this statement. The ground upon which the motion to dismiss is made is that the devisees of R. Boyd were not made parties to the appeal until more than two years had elapsed after the entry of the judgment, and that as to them the right of appeal is barred by the statute. In Jones’ Ex’r v. Finnell, 71 Ky. 25, it was held that,, although' an action is not commenced until a petition is filed, and a summons issued upon it in good faith, the same rule does not apply to appeals, and that an appeal is.
A rehearing is therefore granted. The order dismissing the appeal is set aside, and the motion to dismiss the appeal is overruled.