155 S.W.2d 766 | Ky. Ct. App. | 1941
Dismissing appeal.
This is the third time appellants have attempted to appeal this case as will be seen from the two former opinions reported in
The amounts in controversy were over $200 and less than $500, hence the trial court was without authority to grant the appeal and it was necessary for a motion for an appeal to be filed in this court in the manner provided by Section 950-3, Kentucky Statutes, and within two years from the date the judgment was entered, Section 745, Civil Code of Practice. The judgment was entered on April 24, 1939, and the motion for an appeal was not filed in this court until April 30, 1941, which was not in time and appellant's motion to dismiss the appeal must be sustained.
The fact that appellant filed a motion for a new trial which was not overruled until May 1, 1939, did not cause the statute of limitation on the appeal to begin running from that date. Although this action was brought on the law side of the docket and was never transferred, it is purely an equitable action and the parties so treated it. As it involved complicated accounts, the court should have transferred it to the equity docket on its own motion, Civil Code of Practice, Section 10, Subsection 4; Finley v. Meadows,
As this was in effect an equity proceeding, it was not necessary for appellant to file a motion for a new trial in order to bring the case here on review and the order overruling the motion for a new trial has no effect upon the right to appeal. Nickels v. Collins,
If this should be treated as a common law action appellant would be in no better position. No bill of exceptions appears to have been filed and the depositions are not made a part of the record, therefore we could not review the proof. New York Life Ins. Co. v. Brown's Adm'r,
The appeal is dismissed.
