Krinn v. Helmbold

113 Ky. 759 | Ky. Ct. App. | 1902

Opinion of tiie court By

CHIEF JUSTICE G-UFFY

Dismissins.

This appeal is prosecuted from a judgment of the Campbell circuit court in a suit by August Helmbold against 'Wm. F. Krinn, it being brought by the appellee against appellant, seeking a judgment declaring that he was elected to the office of alderman of the city of Newport instead of the appellant, Krinn. Judgment was rendered in favor of appellee, and the appeal granted to this court on the 16th day of April, 1902. On May 27, 1902, the appellant fifed the record in the case, and obtained an appeal from the clerk of this court, .or at least attempted to do so, executed bond and super&edeas, and caused summons to issue. On the 4th of June thereafter the appellee entered a motion to dismiss the appeal, to which appellant objected, and the motion was submitted, and briefed by counsel for each party.

It is the contention of appellant that he had the right to. file the record with the clerk of this court, and obtain an appeal after the expiration of thirty days from the rendition of the judgment, and he seeks to have the same principle applied to this case as applies to appeals in other cases which have been granted by the court belowT, but not perfected by filing the record in this court within the time specified, and contends that he may within the time allowed for appeals, file same with the clerk and obtain an appeal as in other cases. The contention of appellee is that the record must be filed within thirty days from Ihe rendition of the judgment, and that appeals in such, eases as the one at bar are governed by the act' of the Legislature passed in 1900, and to be found in “Acts of the special session of the Legislature which was convened the 28th of August, 1900.” It will be seen, from an examination of that act, that various provisions were made requiring and providing for a prompt and speedy determination of election contests, and after a judgment the act also provides for the manner and time of taking appeals to this court. So much of the act as we deem pertinent to this motion reads as follows: “Either party may appeal from the judgment of the circuit court to the court of appeals by giving bond to the clerk of the circuit court, with good surety, conditioned for the payment of all costs and damage's the other party may sustain by reason of the appeal and by filing the record in the clerk’s office of the court of appeals within thirty days after final judgment in the circuit court. And in the court of appeals the case shall be heard and determined as speedily as possible and shall have precedence over all other cases.” Acts 1900, Sp. Sess., p. 40. It is not pretended that the record in this case was filed within thirty days from the rendition of the judgment. It seems to us that the act in question is mandatory, and that, unless the appellant complies with the statute, he can not prosecute an appeal from the judgment of the circuit court. It seems to us that the transcript must be filed within the time prescribed by law in order to confer jurisdiction upon this court to hear and determine the matter. We have examined with care the brief of appellant, but deem it unnecessary to discuss the authorities cited, as in our opinion they have no application to the question under consideration. It results from the foregoing that the motion to dismiss the appeal must be sustained.

Appeal is accordingly dismissed.

Whole court sitting.