190 Ky. 518 | Ky. Ct. App. | 1921
Opinion of the Court, by
Dismissing appeal granted by tbe circuit court, with damages- and overruling motion to file transcript, upon appeal granted by circuit court.
On the 22nd day-of November, 1919, the appellee, Jenkins, recovered a judgment for money which he was entitled to enforce by execution of fieri facias, in the Jefferson circuit court, chancery branch, second division, agapist the appellant, Dawson. On the 26th day of December, 1919, Dawson prayed and was granted an appeal, from the judgment, to this court. The appeal was prayed and granted in the circuit court. He never perfected his appeal by filing in the clerk’s office of this- court a transcript of the record twenty days before the second term of this court next after the granting of the appeal as provided by section 738, Civil Code, nor did he secure an extension of time for so doing as he might have done for cause shown, nor did he seek such an extension of time, although on the 26th day of December, 1919, the day upon which his appeal was granted, he superseded the judgment by executing before the clerk of the circuit court a supersedeas- bond, etc. On the 3rd day of January, 1921, after the time had expired within which Dawson could have perfected his appeal, in this court, by filing a transcript of the record in the clerk’s office of this court the appellee, Jenkins, after notice to Dawson, of his intention, filed a copy of the judgment and order granting the appeal, and supersedeas bond, in the clerk’s office of this court, and entered a motion for an order, dismissing the appeal and for damages upon the bond. Dawson responded to the motion, by offering to file a transcript of the record, so as to perfect the appeal granted by the court below, and as an excuse for his failure to file the transcript within the time provided by section 738, supra, averred that certain depositions in the action had been misplaced, and that he could not sooner secure a copy of the qomplete record. The provisions of section 740, Civil
The dismissal ,of the appeal granted by the circuit court because of failure to file the transcript within the time allowed, however, does not prevent a party from praying and being granted an appeal by the clerk of this court, if sought within two years from the rendition of
In addition to the 'express direction of section 738, Civil Code, the adjudications of this court, thereon, have been to the effect, that a failure to file the transcript within the time allowed by the Code provision, or within the extension of time, granted by the court u,nder the authority of that provision, is a ground for a dismissal of the appeal. The motion of appellee to dismiss the appeal granted to appellant, in the circuit court, is therefore sustained, and damages awarded on the supersedeas bond, and the motion of appellant Dawson, to now file the trans-script in this court, in attempted perfection of the appeal granted below is overruled.