132 Ky. 223 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
While engaged in digging coal at the mine of appellant, appellee, Shelby J. Mlorris, was injured by having a lot of coal fall upon his body and leg, inflicting severe and painful injuries, to recover damages for which he instituted a suit against appellant coal company, alleging that his injuries were due to the negligence and carelessness of appellant in not furnishing him a reasonably safe place in which to work, in that a portion of the floor of the room of the mine in which
The company appeals and assigns, as reversible errors-: First, that a peremptory instruction should have been given, because appellee’s injuries were shown to have been the result of a violation of his contract with the company; and, second, that if the company was-guilty of any negligence, it was not the proximate cause of the injuries. For appellee it is urged that there is no bill of evidence and exceptions in this case which can be- considered by the court, and that the trial court was without power and authority to enter the nunc pro tunc order showing the extension of time within which to file the bill of exceptions and •evidence.
We will first determine as to whether or not there is a bill of evidence in this ease which we can consider. The judgment was rendered on the 23d day of January, 1908, and the bill of evidence was not tendered or filed in court until on the 18th day of September, 1908. No order was made granting an extension of time within which the bill of evidence and
In the case of Phillips v. Beattyville Mineral & Timber Company, 100 S. W. 244, 30 Ky. Law Rep. 1102, this court held that, even though a bill ■of evidence and exceptions had been filed with the •clerk within the time given by the court, nevertheless it could not be considered unless it was tendered in open court; and in the case of Nickell v. Charles Hurst, 93 S. W. 1043, 29 Ky. Law Rep. 492, where the bill had not been filed within the time as fixed by an order, it was held that the court had lost power and control over the bill or right to consider same when presented after the time fixed'. In other words, in each of these cases it was held' that the provisions of the Code in this particular are
Applying this principle to the ease at bar, we must conclude that the defendant, having failed to procure an order granting an extension of time within which to file his bill at the term of court when the judgment was rendered and the motion for a new trial overruled, lost his right, and the court was powerless to enter the nunc pro tunc order for the purpose of curing this defect in the record. This identical question was decided in the case of Vandever v. Griffith, 59 Ky. 425, and again in the case of Lynch v. Reynolds, 69 Ky. 547. In each of these cases it was held that the court was without authority to enter a nuno pro tunc order such as he undertook to enter in the case at bar.
With tire bill of evidence out of the case, the errors complained of cannot be considered, and, as the pleadings support the verdict, the judgment is affirmed.