121 Ky. 537 | Ky. Ct. App. | 1905
Opinion by
Reversing.
This is a proceeding’ against appellee to list omitted personal property for five years before the filing of the statement. The trial in the county court resulted' in a judgment in favor of the Commonwealth, finding that personal estate, varying from $6,000 to $9,000, liad been omitted for the years stated, giving the exact amounts found to have been omitted each year, and directing it to be listed as of those years. After the adjournment of the term at which the judgment was rendered, the Commonwealth gave notice to the defendant that it would on the succeeding county court day move the court to correct the judgment in certain particulars because of clerical misprision in entering it. At the time and place-specified in the notice the motion was made and heard, and the judgment corrected in accordance with the notice. The defendant prayed and was granted an appeal from each of these judgments.
Appeals from judgments of the county court to the circuit court must be prosecuted within sixty days from the rendition of the judgment. In this,, case the appeal was prosecuted within sixty-days after the
Appellee contends, and such must have been the view taken by the circuit court, that the judgment from which he appealed was the one fixing his liability to be assessed upon omitted property; that both the judgments in the county court are for the same thing, but that neither of the judgments became final or conclusive against him until the last one was rendered; that until the' last one was rendered, and thereby it became a final judgment affecting his property rights, he had not the right of appeal, and therefore had full sixty days from that time in which to perfect it under the statute. While a motion for a
It would follow from this, if appellee’s contentions were correct, that he might have at least five years and two months within which to prosecute an appeal from the county court, or seven years within which to prosecute an appeal to this court from the circuit court, where the clerical misprision existed in the case. For his argument is that, so long as there is a clerical misprisiop in the entry of the judgment if is not a final judgment, and therefore the right of appeal has not attached, and the limitation against it can not run. Our view of it is that the judgment of the court fixing the rights of the parties may be appealed from at any time after it is rendered. Tin right of appeal is not affected at all by the fact whether there has been a misprision of the clerk in the entry of the judgment, nor whether there exist grounds for a new trial of the action. The appeal may be prosecuted, notwithstanding a motion may-then be or may thereafter be allowed also in the court rendering the judgment to correct the misprision. The only limitation upon this is that contained in sec. 516, Civil Code Practice, which is that a misprision of the clerk shall not be a ground for an appeal until the same shall have been presented and acted upon in the circuit court. This does not mean that there can not be an appeal upon the merits of the action until the misprision has been acted upon by the court, but only that the latter ground can not be reviewed upon appeal until it has been presented to the lower court for correction. Under these views the practice would be that the right of appeal
As to the proceedings to correct clerical misprisions, except in the instance indicated in sec. 519 of the Civil Code of Practice the five-year statute of limitation would apply to the motion in the trial court. After that court has acted upon the motion, the right of the party aggrieved to prosecute an appeal, where an appeal lies, will be regulated by the statutes governing appeals. We conclude that the circuit court erred in dismissing the complaint of the Commonwealth, and the appellee should be allowed to elect which of the appeals he is prosecuting before the circuit court. If it be the one from the judgment first rendered, the .appeal should be dismissed; if it be the one from the judgment last rendered, the judgment should be affirmed.
The judgment of the circuit court is reversed, and cause remanded for proceedings not inconsistent herewith.
Petition by appellee for extension of opinion overruled.