120 Ky. 359 | Ky. Ct. App. | 1905
Opinion by
Dismissing appeal.
Appellee recovered a judgment against appellant for the sum of $8,000 in the Woodford Circuit Court on October 29, 1904. Appellant filed grounds and moved the court for a new trial. On November 4th, the motion was overruled, and an appeal was granted to this court. On November 14th appellant executed a supersedeas bond, but the clerk failed to issue a supersedeas thereon until March 24, 1905.. The time for filing the transcript in the clerk’s office of this court expired on March 21, 1905, or three days before the supersedeas was issued. On April 11th ¿ppellant filed the transcript, and had a summons issued, which was executed on appellee on April 17th; and on April 20th appellee filed a copy of the judgment and bond, and moved the court to dismiss the
By sec. 738 of the Civil Code of Practice, the appellant is required to file the transcript in the clerk’s office of this court twenty days before the beginning of the second term after the granting of the appeal. Appellant failed to do this, and, therefore, the appeal granted by the circuit court must be dismissed. Whether damages may be awarded depends upon the validity of the supersedeas.
Sec. 749 of the Civil Code of Practice is as follows: “ (1) The bond must be executed before the clerk of the court rendering the judgment, if the appeal be granted by that court. In other cases, it must be executed before the clerk of the Court of Appeals. (2) The clerk of the court rendering the judgment shall issue the supersedeas, if the bond be executed before him before the expiration of the time for filing a copy of the record in the clerk’s office of the Court of Appeals pursuant to section seven hundred and thirty-eight. In other cases, it must be issued by the clerk of the Court of Appeals.”
The bond having been executed on November 14th, was properly executed before the clerk of the court rendering the judgment. It was the duty of the clerk to issue the supersedeas as soon as the bond was executed; but damages will not be awarded unless a .supersedeas issues, as the judgment is not superceded by the execution of the bond, nor until the supersedeas has issued. (Civ. Code Prac., sec. 747; Jones v. Green, 12 Bush, 127; Phoenix Insurance Company v. Mc
The appeal granted by the circuit court is therefore! ■ dismissed, with damages.