313 Ky. 680 | Ky. Ct. App. | 1950
Dismissing appeal.
The case is submitted upon a motion to dismiss the appeal because not timely filed.
S. L. Crook and others filed a suit against Holman E. Wilson, his wife, and Emma S. Eademaker stating that at a decretal sale by the United States District Court, Wilson had purchased certain real estate with valuable fluorspar deposits, which had belonged to the S. L. Crook Corporation, and charging that he had acquired same under a contract to hold title as trustee and when sold would divide, the proceeds, but he had fraudulently sold the same tó Mrs. Eademaker. The plaintiffs prayed that they be adjudged the rightful owners of an undivided one-half interest in the prop
A judgment was entered in the consolidated casé as of the last day of the June, 1949, term of court, dismissing the first action instituted by Crook and declaring the rights of the respective parties, which declaration was adverse to the plaintiffs in the first action who were among the defendants in the second. The appeal was not filed in this court until April 10, 1950.
It is readily apparent that this court has no jurisdiction to review the declaratory judgment since the filing of an appeal within sixty days from such a judgment is mandatory. Sec. 639a—5, Civil Code of Practice. McAllister v. Rennison, 305 Ky. 497, 204 S.W.2d 808. In order to avoid the effect of this well settled law, the appellants have shown in this court that the trial court did not decide the case until August, 1949; that the draft of a judgment was not approved until October; and that the judgment was not in fact entered on the order book as of June 25, 1949. On the same day the judgment was approved and ordered to be entered in October, the appellants had filed a schedule for the record, but it was not delivered to them until January, 1950. The cause of the delay is not revealed. We cannot regard these extenuating circumstances, for the record of the entry of the order on June 25, 1949, must stand as recorded. The very question was decided early after the enactment of the declaratory judgment statute in Supreme Tent of Knights of Maccabees of World v. Dupriest, 238 Ky. 352, 38 S.W.2d 241. Even were it otherwise, after the appellants received the record they did not bring the appeal until after the expiration of sixty days. ’
The case first filed in the circuit court was a suit in equity to enforce an alleged trust and did not seek, a declaratory judgment. But all of the issues were em
The appeal in the consolidated case, therefore, is dismissed.