Phelps v. Johnson

182 Ky. 755 | Ky. Ct. App. | 1919

Opinion op the Court by

Judge Sampson

Dismissing appeal.

This action was commenced in the Christian circuit court to recover on a note for two hundred ($200.00) dollars, and to enforce a mortgage on a small house and lot in Hopkinsville executed to secure the note. A decree was entered in favor of the plaintiff for $188.00 and interest, a part of the note only, and adjudged the real property subject to the mortgage lien. From that judgment appeal was prayed and granted in the court below. While the question is not made, in the record, we apprehend that appellants were not entitled, as matter of right, to an appeal in this case under section 950, Kentucky Statutes, and this being so the court below was without power to grant an appeal. As provided in said section, when t*he amount in controversy is less than $500.00 and as much as $200.00, “the party desiring an appeal may do so upon paying the tax and filing the record . . . in the time and manner provided in other like cases, and entering a motion that the appeal be granted” in this court. If after examination of the record the court is of opinion .that the appeal should not be granted, the motion will be overruled.

The amount in controversy in this case is only $188.00, with interest. The mere fact that appellee is attempting to enforce a mortgage on real estate, and the trial court has adjudged a lien does not confer upon appellants ipso facto, the right of appeal because the mortgage is not a statutory lien and the title to real property is not directly involved. It will be observed that the section of the statute to which reference is made, expressly allows an appeal where a statutory lien is involved, and with equal clearness denies an appeal where a lien by contract only —such as a vendor or mortagee holds — is being enforced, if the amount in controversy is less than the sum fixed by statute.

A s said in Gering v. Hoke, et al., 164 Ky. 722, an appeal granted by the lower court is without force where the amount in controversy is less than $500.00, even though a mortgage or vendor’s lien is adjudged against real estate. The appeal must be sought here, else it will be dismissed. While in that case the court varied the rule in order to expeditiously dispose of the appeal, and treating the record as a motion by the plaintiff for an appeal, dismissed the appeal upon the merits, the statute as well as the established rule does not allow this court to take jurisdiction where the amount is less than $500.00 and dispose of the case upon its merits, unless the title to land or the right to an easement therein be directly involved, or a statutory lien on land is sought to be enforced, or where one of the other reasons stated in the statute exists.

In other words a trial court is without power to grant an appeal where the amount in controversy is less than $500.00, though over $200.00, unless (1) the title to land be directly involved; or, (2) the right to an easement in land be directly involved; or, (3) the right to enforce a statutory lien on land be directly involved. Neither case exists here. In no other case, where the amount is less than $500.00, except where an injunction is sought, will an appeal granted by the circuit court be recognized in this court. The appeal must be sought in this court. Gering v. Hoke, et al., supra. For discussion for right of easement see Haynes v. Adsit, 167 Ky. 443; L. & E. Ry. Co. v. Grigsby, 176 Ky., 727. If no appeal is attempted to be granted below, or having been granted is abandoned, the filing of the record in the office of the clerk of this court will be treated as a motion for appeal; but if the appellant relies upon the appeal attempted to be granted below, a dismissal will be ordered without a consideration of the merits of the case. The proper practice is to file the record in the office of the clerk of this court and enter motion for an appeal, which motion will be passed upon after an examination of the record and a consideration of the case upon its merits. Searcy v. Golden, 180 Ky.324; Carter County Bank v. Eifort, et al., 179 Ky. 232; City of Covington v. Sullivan, et al., 172 Ky. 534; Matney, et al. v. Edmonds, et al., 179 Ky. 243; Haynes v. Adsit, supra; Tinsley v. Jones, 169 Ky. 279; Davis, et al. v. Davis, et al., 178 Ky. 779; L. & N. Ry. Co. v. Grigsby, supra.

We regret after examining the record and considering the case upon its merits that we are not privileged to grant an appeal and reverse the judgment.

Appeal dismissed.