176 Ky. 724 | Ky. Ct. App. | 1917
Opinion by
Dismissing appeal.
This case is submitted on appellee’s motion to dismiss the appeal, discharge tbe supersedeas and award Mm damages. Tbe appeal was granted in tbe court below and tbe motion is based on tbe ground that tbe transcript of the record was not filed in tbe office of the clerk of tbe Court of Appeals, twenty days before tbe first day of tbe second term of the Court of 'Appeals, next after tbe granting of tbe appeal, as required .by section 738, Civil Code.
It appears from tbe record that tbe judgment, which is for $1,000.00, was recovered December 20, 1916; that on December .-22, 1916, tbe appellant filed bis. motion and grounds for a new trial; that tbe motion was overruled January 1, 1917, and that tbe appeal was, at that time and on that day, granted. Tbe first term of tbe Court of Appeals next after, tbe granting of tbe.appeal was tbe January term, 1917’, which began tbe first Monday in January, viz., January 2, 1917, the day. following tbe granting of the appeal by tbe circuit court. Tbe second term of tbe Court of Appeals next after tbe granting of tbe appeal began tbe second Monday in April, which was tbe 9th day of tbe month. Instead of filing tbe transcript of tbe record in the office of tbe clerk of tbe 'Court of Appeals twenty days before tbe first day of tbe April term, 1917, appellant did not file it therein until August 27, 1917; hence, it would seem there was a failure to file it as required by section 738, Civil Code. It is, however, insisted for appellant that although tbe appeal was
Appellant’s contention that the order granting the appeal could have no legal effect until signed by the judge of the circuit court is undoubtedly sound, for we so held as to a similar contention in Interstate Petroleum Co. v. Farris, 159 Ky. 820, and the several cases therein cited, but the contention presents no defense to the motion to dismiss the appeal here made by appellee, as the record fails to show that the order granting the appeal was signed January 2, 1917, as claimed by appellant. It does, however, show that appellant’s motion for a new trial was overruled, the appeal granted and that the order manifesting these facts was entered January 1,1917, and in the absence of proof to the'contrary, appearing in the record, the presumption must be indulged that, the order was signed by the judge of the court upon the day it was entered.
We are, therefore, constrained to hold that the filing of the transcript in the office of the clerk of the Court of Appeals August 27,1917, was not a compliance with section 738, Civil Code. The transcript should have been-filed twenty days before the first day of the April term, 1917, of the Court of Appeals, which was the second term of the court next after the granting of the appeal. The provisions of section 738, Civil Code, are mandatory, and an appeal granted by the lower court will, on motion of the appellee, be dismissed where the transcript is not filed in the office' of the clerk of the Court of Appeals
For tbe reasons indicated appellee’s motion to dismiss tbe appeal and discharge the supersedeas is sustained and tbe appeal dismissed with damages.
