Ingram v. Cincinnati, F. & S. E. R. R.

127 Ky. 638 | Ky. Ct. App. | 1907

Opinion op the Court by

Judge Hobson

Overruling motion.

O. B. Ingram on November 6, 1907, recovered a judgment for $4,000 against the Covington, Flemingsburg & Ashland Railroad Company. Execution was issued on the judgment and returned “No property found.” On November 11, 1907, he filed this suit, against the Codington, Flemingsburg & Ashland Railroad Company, the Cincinnati, Flemingsburg & Southeastern Railroad Company, and the Columbia Finance & Trust- Company, in which he alleged that the first company had sold out to the second its railway and property, and that as a part of the price the purchaser agreed to pay to him any sum which he might recover in the action which he had then instituted, and in which he recovered the judgment for $4,000; that the purchaser had made a mortgage to the Columbia Finance & Trust Company to secure bonds to the amount of $30,000; that the, purchaser had taken possession of the road, but had ceased to operate about 12 miles of it; that in ceasing-to operate the road it had materially impaired its earning power; that the road was depreciating in value; that he had a lien upon the property for the payment of the judgment; and that his security was being depreciated by the acts of the purchaser. He prayed that the road be placed in the hands of a receiver. On¡ November 30, 1907, he entered a motion before the'*" circuit judge for thé appointment of a receiver. The court overruled the motion, and he prayed an appeal to this court, which was granted. On December 10th he filed a transcript of the record in this court, and entered a motion that the case be docketed, advanced, and set for hearing at this term. Appellees object to the motion on the ground that the court has no power to hear the ease until it is regularly docketed as provided by the Code.

Section 759, Code Prac. 1906, provides that if an appeal with supersedeas is taken for delay merely, the appellee may at any time move the court to affirm the judgment as a delay case. Under this section it has been held that the court cannot entertain a motion to affirm as a delay case until the case is regularly on the docket and before the court. L. & N. R. R. Co. v. Schmidt, 104 Ky. 179, 19 Ky. Law Rep. 666, 46 S. W. 688; Wyatt v. Ryan, 65 S. W. 129, 23 Ky. Law Rep. 1457; Hamilton v. Ky. Title Co., 79 S. W. 1182, 25 Ky. Law Rep. 1575. The same rule has been uniformly followed by the court where motions have been made to docket an appeal and advance the case for decision before it had been regularly placed upon the docket as provided by the Code, unless both parties consented to the docketing and advancing of the case. Meacham v. Dem. Executive Com., 115 Ky. 2461, 71 S. W. 447, 24 Ky. Law Rep. 1340; Sweeney v. Coulter, 57 S. W. 254, 470, 22 Ky. Law Rep. 839. Section 298, Code Prac. 1906, provides: “The orderof a court, or of the judge thereof, appointing or refusing to appoint a receiver, shall be deemed a final order for the purpose of an appeal to the Court of Appeals.” There is nothing in this section, however, to put appeals taken under it on a different footing from other appeals.

The statute regulating appeals in election cases provides that the transcript must he filed within 30 days after final judgment. in the circuit court, and that in this court the case shall he heard and determined as speedily as possible and shall have precedence over all other cases. Under this provision it has been held that election cases may he heard and determined at the time at which they are filed. But, there being no such provision as to appeals in suits for the appointment of a receiver, they cannot he given precedence over other cases. Counsel insist that, while this may he true as to appeals from final judgments in actions like this, appeals from orders made on motions should stand differently. The difficulty with this is that the Legislature has not so provided. It has simply given the right of appeal from orders made on motions, hut has left the appeal to he regulated as other appeals.

The motion to docket the case is therefore overruled.