Commonwealth v. Stone

155 S.W. 1159, 153 Ky. 515, 1913 Ky. LEXIS 870

• Court: Court of Appeals of Kentucky
• Decided: May 1, 1913
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Hobson

Dismissing Appeal.

This was a proceeding instituted by the Commonwealth against appellees under article 3, chapter 108, Ky. Stat. (Secs. 4076b-4076k), to forfeit to the Commonwealth certain lands on the ground that the owners had failed to list the land; proof was heard, the law and facts being submitted to the court; and the court dismissed the plaintiff’s petition, the judgment being entered on December 10, 1912. The plaintiff then excepted to the judgment and prayed an appeal to this court which was granted. The transcript of the record was filed in this court ou March 24, 1913. The appellees have entered a motion to dismiss the appeal. By section 738 of the Civil Code, the appellant shall file the transcript in the office of the clerk of the Court of Appeals at least 20 days before the second term of the court next after the granting of the appeal. If this section applies the transcript was filed in time, as the term beginning April 14 was the second term of the court after the granting of the appeal, and the record was filed 20 days before the beginning' of that term. But one of the provisions of section 4076d Kv. Stat., regulating this character of proceeding is as follows:

“Either party may prosecute an appeal from such judgment to the Court of Appeals within thirty days after the same may be entered; but if any such appeal be prosecuted, the transcript of the record shall be filed in the Court of Appeals within sixty days after the entry of said judgment; and the hearing upon appeal shall have the same precedence as other Commonwealth cases. No bond on appeal shall be required of the Commonwealth.”

The transcript of the record was not filed in this court within sixty days after the entry of the judgment. While the Code of Practice governs ordinary civil cases, this proceeding having been instituted under the act of March 15, 1906, must be governed by that act. The Legislature in allowing the proceeding provided how the appeal should be taken, and this provision supersedes th© Civil Code as to this special proceeding. The transcript not having been filed within the time allowed by the statute governing this special proceeding, was not filed in time. (Krinn v. Helmbold, 113 Ky., 759).

The motion to dismiss the appeal must therefore be sustained.

Appeal dismissed.