Duff v. Duff

45 S.W. 102, 103 Ky. 348, 1898 Ky. LEXIS 72

• Court: Court of Appeals of Kentucky
• Decided: March 22, 1898
• Status: Published

Opinion

CHIEF JUSTICE LEWIS

delivered the opinion of the court.

Upon an appeal from an order of the Perry County-Court probating the will of Jno. A. Duff, judgment following verdict of the jury, was, March 9, 1895, by the Perry Circuit Court, rendered, affirming that order.

But the appeal from that judgment was not brought to this court, until February 4, 1897. And now, a motion is made to dismiss the appeal, because it was not prosecuted within the time required by law.

Appellants, however, argue, that the appeal can not be dismissed on a mere motion, a formal plea of the statute of limitations being indispensable for that purpose. That position would be correct if appellee had done no more than make a mere motion. But the paper filed, though called a motion, amounts substantially to a plea •of limitation, to which appellant can reply, setting up any facts in avoidance of a bar to the prosecution of the appeal.

Section 4850, Kentucky Statutes, provides, that the appeal to the circuit court shall be within five years after the judgment of probate or rejection of a paper offered .as will in the county court, and prosecuted to the Court of Appeals within one year after the final decision in the •circuit court.

The same provision was contained in the General Statutes, as had been in the Revised Statutes preceding, which as said in Arterburn’s Executor against Young, 14 Bush, 509, were evidently intended to regulate the entire proceedings in regard to probating, or rejecting papers offered as last wills and testaments.

Section 743, Civil Code, fixing two years, within which appeals generally may be brought to this court does not mor ever was intended to apply to appeals from judgments oí the circuit court in will cases; but tbe limit of time within which an appeal can be taken in such cases is and was intended to be covered by the Kentucky Statutes.

Nor can the statutory provision be regarded, as argued by counsel, as inconsistent with or repugnant to any part of the Constitution.

As, therefore, it is not stated, nor appears that appellants, or any of them, labor under disabilities, or that any facts exist in avoidance of the plea of limitation, the appeal must be dismissed.