Gahren, Dodge & Maltby v. Parkersburg National Bank

Court of Appeals of Kentucky

Gahren, Dodge & Maltby v. Parkersburg National Bank

160 S.W. 249, 155 Ky. 657, 1913 Ky. LEXIS 326

DecidedNovember 6, 1913

StatusPublished

This text of 160 S.W. 249 (Gahren, Dodge & Maltby v. Parkersburg National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gahren, Dodge & Maltby v. Parkersburg National Bank, 160 S.W. 249, 155 Ky. 657, 1913 Ky. LEXIS 326 (Ky. Ct. App. 1913).

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Opinion

Opinion op the Court by

Chiep Justice Hobson—

Overruling motion.

Tbe briefs for both the parties on the merits having been filed, this appeal was regularly submitted on the call of the docket on September 26, 1913. Pending the submission, appellee has entered a motion that appellant, Gahren, Dodge & Maltby be required to execute bond for cost; this motion having been entered on October 28,1913.

The judgment of this court relates to the date of the submission, and after the submission of the appeal on the merits, no dilatory plea can be entertained. We have often held that a motion to dismiss the appeal for informality or because it was not taken in time,- cannot be heard unless made before submission. The same rule must of necessity apply to a motion for bond for cost. Wheelin v. Kirtley, Hardin 540.

In addition to this, one of the appellants is a resident of the State, and has the right to prosecute the appeal without executing a bond for cost. The rule is that a bond for cost will not be required where one of the appellants is a resident of the State, and another is a nonresident; the reason being that the resident has the right to prosecute his appeal and to join such parties as co-appellants as may be proper, and if he could not do this, confusion and injustice to him might result. The statute only applies where a bond for costs may be required of -all the appellants properly joined as such.

Motion overruled.

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Opinion op the Court by

Chiep Justice Hobson—

Overruling motion.

Tbe briefs for both the parties on the merits having been filed, this appeal was regularly submitted on the call of the docket on September 26, 1913. Pending the submission, appellee has entered a motion that appellant, Gahren, Dodge & Maltby be required to execute bond for cost; this motion having been entered on October 28,1913.

The judgment of this court relates to the date of the submission, and after the submission of the appeal on the merits, no dilatory plea can be entertained. We have often held that a motion to dismiss the appeal for informality or because it was not taken in time,- cannot be heard unless made before submission. The same rule must of necessity apply to a motion for bond for cost. Wheelin v. Kirtley, Hardin 540.

In addition to this, one of the appellants is a resident of the State, and has the right to prosecute the appeal without executing a bond for cost. The rule is that a bond for cost will not be required where one of the appellants is a resident of the State, and another is a nonresident; the reason being that the resident has the right to prosecute his appeal and to join such parties as co-appellants as may be proper, and if he could not do this, confusion and injustice to him might result. The statute only applies where a bond for costs may be required of -all the appellants properly joined as such.

Motion overruled.

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Bluebook (online)

160 S.W. 249, 155 Ky. 657, 1913 Ky. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gahren-dodge-maltby-v-parkersburg-national-bank-kyctapp-1913.