Bennett v. Commonwealth

322 S.W.2d 706

• Court: Court of Appeals of Kentucky
• Decided: January 30, 1959
• Status: Published

Opinion

PER CURIAM.

Motion by Garland Bennett and wife for an appeal from a judgment of the Daviess Circuit Court which dismissed, on the motion of the Department of Highways, an appeal taken by the department from a condemnation judgment of the Daviess County Court, and which also dismissed, on the department’s motion, an attempted cross-appeal by the Bennetts, on the ground that it was filed too late.

The arguments advanced by the Bennetts, as to why they should be entitled to a trial in the circuit court on the issue of insufficient damages, notwithstanding that they did not file their cross-appeal within the time required by KRS 177.087, are the same arguments that were rejected by this Court in Bullitt v. Commonwealth, Ky., 298 S.W.2d 290.

The fact that the county court, in its judgment finding that the Department of Highways had the right to condemn, recited that the landowners had not questioned the authority of the department to condemn the land, whereas in fact the answer of the landowners in the county court did question the authority to condemn, would not make the judgment void, but merely erroneous, and the error could be remedied only by a timely appeal. See Crawford v. Riddle, 241 Ky. 839, 45 S.W.2d 463.

The motion for an appeal is overruled and the judgment stands affirmed.