179 Ky. 836 | Ky. Ct. App. | 1918
Response to Petition eor Rehearing by
Overruling petition.
The opinion properly held, under the authorities there cited, that the Ironton Lumber Company was not a party to this appeal. 179 Ky. 243. In their petition for a rehearing appellants ask that they be permitted to supply the record by filing a statement of appeal in which the Ironton Lumber Company is named as appellee ; or, if that cannot be done, that the statement of appeal be supplied by reference to a commissioner.
In his affidavit in support of the motion appellants’ counsel states that he filed a statement (a copy of which is now tendered), at the time the record was filed in the office of the clerk of this court, in which the Ironton Lumber Company was named as an appellee, but that it was mislaid or lost.
That fact, however, does not authorize this proceeding which contemplates a single appeal against Edmonds and the Ironton Lumber Company who have recovered separate judgments.
The controversy between Matney and the Ironton Lumber Company is entirely separate and distinct from the controversy between Matney and Edmonds; and, they resulted in separate judgments. If Matney and Bevins desire to review the judgment which passed upon the controversy between them and the Ironton Lumber Company for $3,447.50,' as is contemplated by the present motion, they should proceed by a separate appeal against the Ironton Lumber Company.
The code does not contemplate a single appeal from separate judgments in favor of different parties, as the tendered statement proposes.
An appeal is prosecuted by making the statement required by section 739 of the code, and paying the tax thereon. Where several parties who have recovered separate judgments are jointly named as appellees in one statement of appeal, and one tax is paid, as here, there is only one appeal; and, the party first named as an appellee is the only appellee. It is not claimed that
However, as this judgment was entered on June 7, 1916, appellants still have ample time to prosecute an appeal against the Ironton Lumber Company, if they desire to do so; and that may be done upon this record.
Petition and motion overruled.