| Ky. Ct. App. | Nov 28, 1905
Opinion by
Affirming.
On January 18, 1901, the court entered a judgment in this case defining the rights of the parties in the land in controversy, appointing commissioners to make partition of it between them, and adjudging to the Ft. Jefferson Improvement Co. a lien on the land allotted to J. C. Dupoyster and his wife, Rebecca
It is insisted for appellants that there are numerous errors in the judgment of January 18, 1901, as to the directions given the commissioners in dividing the land, and it is insisted that land was included in the division which should not have been included. There can not be a succession of appeals from the same judgment. When an appeal is taken, all errors in the judgment must be presented to the court, and as to all matters not found erroneous by this court the judgment stands affirmed. On the last appeal the judgment was expressly affirmed as to all the parties except Rebecca S. Dupoyster, and as to her it was only reversed in so far as it subjected her land to the debts of the Ft. Jefferson Improvement Co. It therefore follows that on this appeal that judg
It is insisted, however, that the judge who tried the case was not competent to preside. This objection was not made in the circuit court. After he had made several orders in the case there! was an affidavit filed to the, effect that he would not do the appellants justice, but this affidavit was insufficient and came too late. It not appearing from the record that the judge was not properly'qualified, and no objection having been made on this ground in the circuit court, it must be presumed on appeal that he had authority to sit in tlie case.
As to the correctness.of the commissioners’ report and the ruling of the court upon the exceptions thereto, the question is made that the evidence before the court is not properly before us. It appears from the record that at the next term after the judgment was entered, and on August 22, 1904, the circuit court made an order filing the stenographer’s transcript of the evidence, and this transcript has been brought up on the appeal. No time was given at the term when the judgment was entered to prepare a bill of exceptions, and a motion has been made to strike out the stenographer’s transcript on the ground that it is not properly a part of the record. It is insisted for appellants that a bill of exceptions is unknown in equity, and that therefore no bill of exceptions was necessary. This is ordinarily true, as equity cases are usually tried upon the record and without oral evidence. But, when oral evidence is heard, it must be made part of the record by bill of exceptions in equity cases, just as it is in ordinary
“Sec. 336. If the decision objected to be entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that, he excepts.
“Sec. 337. If the decision be not entered on the record, or the grounds of objection do not appear m the entry, the party must prepare his bill of exceptions and present to the judge for his signature.”
Sec. 334 also provides: “The party objecting must except when the decision is made; and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court.”
These sections apply to all cases, whether equitable or ordinary, where oral evidence is heard.
It is also insisted for appellant that a transcript of evidence made out by the stenographer may be received under the statute authorizing such transcripts to be made. (Ky. Stats. 1903, secs. 4637-4645.) The provisions of the act, so far as material,, are as follows:
“Sec. 4639. Upon any trial or proceeding in any civil case in said court or division, if either party to the suit, or their attorney, shall request the services, of said reporter, or if, in the opinion of the presiding judge, the testimony should be preserved, the presiding judge shall direct such reporter to make a full report of the testimony heard therein, whereupon it shall be the duty of the reporter to.take full stenographic notes of such testimony, and upon the motion of either party to the suit or proceeding or their attorney, to cause a full and accurate transcript of the
“Sec. 4641. In any equity suit or proceeding pending in such court or division, where testimony is to be taken, if either of the parties to the suit or proceeding, or their attorney, shall suggest, the presiding judge may, in his discretion, direct such testimony to be taken by the reporter, in which case it shall be the duty of said reporter to take the testimony in shorthand, and to cause a full and accurate transcript of the same to be made, and filed among the papers of the case.
“Sec. 4644. Any of said transcripts of testimony made by such reporter, as aforesaid, when attested by the judge before whom the trial was had, may be taken, without being copied, to the Court of Appeals, to be used upon, an appeal, and thereafter returned to the court in which it was made.”
We had these sections under consideration in the recent case of John Knecht v. Home Telephone Company, 121 Ky., —, 89 S.W., 508" court="Ky. Ct. App." date_filed="1905-11-17" href="https://app.midpage.ai/document/knecht-v-louisville-home-telephone-co-7136001?utm_source=webapp" opinion_id="7136001">89 S. W., 508, 28 Ky. Law Rep., 456. It was held in that case that in an ordinary action the stenographer’s transcript could not be considered, where it was filed at a subsequent term, when the court had lost jurisdiction over the case, and after a bill of exceptions had been filed at a previous term. The same rule must apply in equity cases. The court has no power in an equity case, after the judgment has become final and he has lost jurisdiction over it, to file at a subsequent term papers as part of
The record not disclosing the evidence which was heard before the circuit judge on the exceptions to the report it must be presumed that he ruled properly in overruling the exceptions, and his judgment to this extent can not be disturbed. It will be ob
The appellees have filed in this court affidavits to the effect that appellants are wasting the timber on the land, and have entered a motion that this court appoint a receiver to take charge of the property Or grant a restraining order to protect appellees’ rights. Our jurisdiction is only appellate. We can not make orders of this sort. On the return of the case to the circuit court proper orders, if shown to be necessary,, may be made to protect the rights of the parties.
Judgment in first case reversed, and cause remanded for further proceedings as herein indicated..
The judgment in second case is affirmed.
Petition for rehearing by appellant overruled.