168 S.W.2d 1004 | Ky. Ct. App. | 1943
Dismissing cross-appeal.
Promptly after rendition of a judgment declaring defendants to be in contempt of court, imposing fines and awarding plaintiffs certain relief pro confesso, the defendants filed a schedule on March 30, 1942, directing the circuit clerk to copy the entire record for the purpose of appeal, except the summonses. The appeal was perfected and the case docketed in this court under the style of Crook et al. v. Schumann et al. It appears as Case No. 1 on our Civil Docket for the Fall Term, 1942. The opinion in the case was delivered November 24, 1942, Crook v. Schumann,
On Rule Day May 4, 1942, the plaintiffs filed an amended petition, designated as "A," reiterating allegations of their previous pleadings, and adding another charge or ground for the relief they had been seeking. They also pleaded causes and asked for a mandatory injunction against the officers of the corporation, in which they were or claimed to be minority stockholders, ordering the defendants to produce certain of its records. They filed some depositions supporting their claims. At the June term on a trial of several motions of the defendants, including one to strike amended petition "A" from the record, the court sua sponte sustained a demurrer to it. The plaintiffs electing to stand upon their amended petition, the court dismissed it and granted them an appeal. See Schumann v. Crook,
It appears that the plaintiffs in prosecuting the appeal from the June judgment adverse to them have done so as conforming with Section 741 of the Civil Code of Practice, which authorizes an appellee to file an authenticated copy of the record, with the same effect as if filed by the appellant, and as supplementing the record which the appellants had filed. It is contended that that record was not complete. The procedure provided for in Section 741 is not the proper one in a situation of this kind. The judgments from which the appellant sought relief were those rendered adverse to them at the March, 1942, term of the circuit court. Those judgments were complete and final. The determination of their correctness or propriety was to be determined by the record as it was presented to the circuit court. After the judgment no new matter could be put into the record filed in this court unless it was something that had been omitted and needed to be supplied. Additions cannot be made of matters not before the circuit court when the judgment was rendered. Hibbard v. Estridge,
While rendered in the same suit the subsequent judgment dismissing the amended petition "A" was separate and distinct from the final judgment appealed from by the other parties to the suit. A cross-appeal, as appellees contend they are prosecuting, was improperly granted by the clerk. Therefore, the cross-appeal, docketed as Case No. 2, should be dismissed. It is so ordered at the cost of Schumann, et al.