188 Ky. 516 | Ky. Ct. App. | 1920
Opinion op the Court by
Dismissing the appeal.
The judgment was rendered on the 7th- day of July, 1917, and on the 17th day of December thereafter, the Empire Coal Mining Company, the Empire Coal & Land Company, Hutton and Jacobs perfected their appeal to this court against the Empire Coal Company and thereafter on the 28th day of March, 1919, the' action was tried upon that appeal in this court, and the judgment of the circuit court was affirmed. Empire Coal Mining Company, et al. v. Empire Coal Company, 183 Ky. 699. After the judgment had been affirmed the Empire Coal Company collected the judgment which it had recovered against the Empire Coal Mining Company and the Empire Coal & Land Company. After the affirmance of the •judgment the Empire Coal Company became a bant
The appellant, however, now insists that it has. a right to appeal from the judgment of the trial court, because it was granted an appeal by that court, and now desires to appeal from so much of the judgment as fixes the amount which it should recover of the appellees. As heretofore stated, the appellant did specifically pray an appeal against the appellees from so much of the judgment as fixes the amount of the recovery, while the appellees prayed an appeal against the right of appellant to recover anything as well as. the amount which the circuit court adjudged i.t to be entitled to recover .of appellees. It thus now appears that appellant does not desire a readjudication by this court .of the liability of the appellees to it, but desires to split the cause of controversy, and to leave the former judgment of this court undisturbed as to its right of recovery, against the ap1-pellees, but to have the former judgment, which was final, set aside to the extent that the amount of the recovery was fixed and to have a readjudication of that question. It does not require any argument to demonstrate that such a proceeding as that, upon such terms and conditions, would not be permitted in a trial court, and why should it have standing in this court? It is true, that where both the plaintiff and the defendant pray and a.re granted an appeal from a judgment of the circuit court to this court, they may each take and perfect their appeals at the same time and upon the same record. Allen County v. U. S. Fidelity and Guaranty Company, 122 Ky. 832. Section 755 Civil Code provides as follows: “The appellee may obtain a cross-appeal at any time before trial, by an entry on the records of the Court of Appeals.” Thus a cross-appeal may be taken by an appellee as a matter of right to have any errors of the trial court, prejudicial to him, reviewed and corrected, upon the hearing of the appeal against him, by a judgment of this court. A cross.-appeal, however, must be taken by the appellee before the submission of the original appeal for trial in this court, in order that it may be heard by the court at the same time
The appeal is therefore dismissed.