109 Ky. 641 | Ky. Ct. App. | 1901
Opinion of the court by
Section 738, Civil Code of Practice, requires that the appellant shall file the transcript in the office of the clerk of this court at least twenty days before the first day of its second term next after the granting of the appeal, unless the court extend the time. This section applies both to ap
It is insisted by counsel for appellee that under the doctrine of City of Bowling Green v. Elrod, 14 Bush, 216, it is entitled to have the first appeal dismissed. It does not appear whether the motion to dismiss in that case was before or after the case was submitted for final hearing. It was decided that if an appeal has been granted by the' lower court in proper time, and the appellant fails to comply with this Code, his appeal may be dismissed, and that, although this may be done, still he may, at any time within two years from the time he could have appealed, have an appeal granted by the clerk of this court; that a dismissal of the appeal granted in the court below does not bar the right to obtain an appeal from the clerk of this court. The question here presented was not involved in City of Bowling Green v. Elrod. Although the appeal was grant