Wiggins v. Commonwealth

102 Ky. 40 | Ky. Ct. App. | 1897

JUDGE PAYNTER

delivered the opinion oe the court.

In November, 1891, Sarah M. Ellis obtained a warrant ior the arrest of the appellant, Willis Wiggins, on a charge that he was the father of her bastard child. The trial in the county court resulted in a verdict of guilty, and the appellant was adjudged to pay $50 per year for a period of ten years. The judgment was rendered in March, 1892, from which he prosecuted an appeal to the circuit court. The ease remained on the docket until the August term, 1894, when a judgment was rendered in that court for the amounts fixed in the judgment of the county court.

The record shows that at every term of the court from the time the appeal was taken until this judgment was rendered (and he was present in court when it was rendered) the appellant was present in court demanding a trial, except one term of the court when his affidavit and that of his physician showed that he was unable to attend, upon which the court continued the case. At the August term, 1894, when the judgment complained of was rendered, the appellee moved the court for judgment against the appellant, and in support of which certain affidavits were filed. Appellant entered a counter-motion to dismiss the warrant for 'want of prosecution. The court overruled the motion to dismiss the warrant, but sustained a motion for a judgment. There was no trial of the case on its merits, the ,oourt did not empanel a jury to return a verdict as to the guilt or- innocence of the accused, neither did the court hear any testimony whatever as to the merits of the case.

Counsel for appellee contend the court did not err because of the provisions of section 730 of the Civil Code of Practice, which is as follows: “If the appellant move to dismiss or fail to prosecute his appeal, it shall be at the option of the appellee either to proceed to trial on the appeal or to have judgment rendered for the amount of the original ¡judgment and 'costs, if it was in his favor, or in bar of the original judgment, if it was against him.”

¡Counsel erroneously assumes that the appellant, Wiggins, moved the court to dismiss the appeal. This he did not do as the order shows, but moved to dismiss the warrant for want of prosecution on the part of the appellee. The case should have been tried de novo, and on the trial of the case it was as essential for the appellee to show the guilt of the appellant as it was in the county court'; in other words, the trial should have proceeded in the circuit court on the merits of the case in the same manner as in the county court. If the prosecutrix failed to appear and prosecute the case, it was in the power of the court to dismiss the warrant for want of prosecution, and the appellant was entitled to make such motion and have it considered. As we have said the record shows that he was present every term of the court until the judgment was rendered, except one term of the court, and the record shows that he was unable to* ¡attend on account of illness. The appellee filed some affidavits on his motion for judgment in which it was attempted to be shown that the appellant or his friends were instrumental in keeping prosecutrix from' attending the trial. If the affidavits established anything, it was that the appellant had been guilty of contempt of court, and not in the presence of the court. If he had been guilty of contempt of court, it was in the power of the court by appropriate proceedings to have him punished for it. It is not one of the powers of the court, however, as a punishment for contempt to render judgment against a party so charged on a claim, the merits of which have not been tried. The section of the Code quoted was intended to prevent an appellant from dismissing his appeal and thus deprive the appellee of a trial of the case, and, further, to prevent an appellant from taking an appeal, and then fail to prosecute it, and thus prevent the appellee from having a trial of the merits of the case. So long as appellant appears in court by himself or counsel and announces himself ready to try the case the court has no power, upon a .charge that he has prevented witnesses from appearing in court, to adjudge that he has not prosecuted his appeal, and render judgment against him. The effect of the judgment was to convict the appellant of contempt of the court without a formal charge of that offense, and to inflict an unauthorized penalty for such an offense. The appellant did not move to dismiss his appeal, nor did he fail to prosecute it. If the statements contained in the affidavits be true, he hindered and interrupted the Commonwealth in the prosecution of its case, but the purpose of that was to make successful the prosecution of his appeal.

The judgment is reversed, with directions that the court set aside the judgment, and for proceedings consistent with this opinion.