Northwestern Mutual Life Insurance v. Barbour

96 Ky. 128 | Ky. Ct. App. | 1894

JUDGE LEWIS

DELIYBRED THE OPINION OP THIS COURT.

October 1, 1889, three actions were instituted in the Louisville Chancery Court by James P. Barbour and others to recover of the Northwestern Mutual Life Insurance Company on four distinct policies of insurance on Ms life.

One of the actions was on policies for five thousand, dollars and for two thousand five hundred dollars,, payable to Minnie R. Barbour, his wife, and to his' children. The second action was on a policy for two thousand five hundred dollars, payable to his wife only, and the third was on a policy for ten thousand dollars, payable to Ms children.

Judgment was rendered in favor of plaintiffs in each action, though not for full amount of either policy. But from the several judgments a separate appeal was- prosecuted by. defendant — to this court from that rendered in the first and to the Superior Court from those rendered in the other actions. December 1, 1891, the judgment in the first mentioned action was by this court reversed, and the case remanded with directions to the lower court to overrule the general demurrer to the answer, which, unless the facts stated in that answer turn out to be untrue, involves ultimate dismissal of the action. (See N. W. Life Ins. Co. v. Barbour, 92 Ky., 427.)

The Superior Court, however, affirmed the judgments rendered in the other two actions. But as the four policies are similar in character and the same defense is made in each action, the same opinion, followed by the same mandate, will have to be rendered by this court in those cases, as was done in the other, unless the motion of plaintiffs to dismiss the two appeals from the Superior Court be sustained.

The ground of that motion is non-compliance with section 7 of the statute, approved April 22, 1882, creating “the Superior Court of Kentucky,” as follows: “All appeals from the Superior Court to the Court of Appeals shall be prayed for and granted in the Superior Court. But no appeal shall be granted after six months from the time the right to appeal first accrued, unless the party appealing therefrom was a defendant in the original action and an infant.”

It appears that July 4, which was in due time after June 3, 1891, date of the opinion and mandate of the Superior Court in the two cases, defendant filed a petition for rehearing in each. But they were not passed on until September 11, 1891. Nor, though a motion therefor was made as early as September 7, 1891, was an appeal to this court in either case granted until January 6,. 1892, more than six months after the opinion and mandate. So it is apparent the right of appeal, if gone, has not been lost by laches of defendant. And that the construction of the statute contended for by plaintiffs makes possible such wrong to a litigant, is sufficient reason for not adopting it, unless constrained to do so.

It seems to us the right to appeal in these cases did not, in meaning of the statute, accrue, and, as a consequence, limitation of six months did not begin to run, Rintil after the petition for rehearing had been passed on 'and overruled by the Superior Court; for as up to time of final decision of that petition, the Superior Court retained jurisdiction to grant a rehearing, and was bound to do so, if, in its opinion, sufficient grounds therefor existed, it can not be assumed that either the right to appeal had accrued or power to grant it existed previously.

Wherefore, in each case the motion to dismiss is overruled, judgment on cross-appeal affirmed, and on appeal reversed, and cases remanded with direction to overrule the demurrer to each answer, and for further proceedings consistent with this opinion.