121 Ky. 631 | Ky. Ct. App. | 1905
Lead Opinion
Opinion by
Overruling motion.
The rule is that the entry of a motion for a new trial suspends the judgment, and that the judgment
The appeal bond was executed after the motion for a new trial was overruled, and was, no doubt, executed under the idea that an appeal had then been granted by the circuit court. But as no appeal was then granted, and as the appeal which was granted on April 9th had been abandoned, the appeal bond and supersedeas are void. The circuit court had lost jurisdiction over the case in January, 1905, and therefore appellant properly filed his record with the clerk of this court, and had an appeal granted here. Appellee having entered her appearance to the appeal, the case stands regularly on the docket for hearing. The motion of the appellee, to dismiss with damages, the appeal granted by the circuit court, is overruled, as the only appeal granted by the circuit court was abandoned.
Appellee’s motion to strike out the bill of exceptions is therefore overruled.
Rehearing
Opinion by
on petition for rehearing.
With the petition for rehearing appellee offers to file an omitted part of the record, viz, an order of the lower court of July 9, 1904, granting an appeal in this case. The supersedeas bond was executed on August 5, 1904. A previous appeal had been granted by the. lower court April 9, 1904; but, as was held in the former opinion herein (87 S. W., 812, 27 Ky. Law Rep., 1059), appellant’s subsequent motion for a new trial was an abandonment of that appeal. The transcript of the record was not filed in this court till March 21, 1905. Appellee’s motion to dismiss the appeals granted below was overruled, as is shown by the former opinion, because the record disclosed that but one appeal, viz, that of April 9, 1904, had been granted; and, as it was abandoned as above shown, there was no appeal pending but the one granted in this court March 21, 1905. In discussing the effect of the appeal granted April 9, 1904, subsequently abandoned, and the effect of the supersedeas and bond, this court said: “The appeal bond was executed after the motion for a new trial was overruled, and was no
The question is, will the court on a petition for rehearing allow the record to be perfected, so as to change the result? In a number of cases it has been decided that after submission the court will not allow the record to be extended, and that, where the appellant has lost upon an imperfect record the court will not on rehearing permit the record to be changed and the case retried. (Stanford v. Parker, 15 S. W., 784, 16 S. W., 268, 12 Ky. Law Rep., 878; Christopher v. Searcy, 12 Bush, 171; Yeager v. Groves, 78 Ky., 278; Martin v. Royse, 54 S. W., 177, 21 Ky. Law Rep., 1353.) This rule, though, has been confined to appellant in its application; for it is the appellant generally who files the record here, and it is obviously a safe rule that prohibits bis speculating upon the result of the court’s action by presenting incomplete transcripts. He dogs so at bis peril. On the other band, we have held in a number of cases that the rule does not apply in its rigor to the appellee, who does not bring up the record. We are speaking of those cases in which the complete record is required to be brought
The motion to dismiss the appeal is overruled. The motion to file additional transcript is sustained.