Jaggers v. Ryan

474 S.W.2d 85, 1971 Ky. LEXIS 87

• Court: Court of Appeals of Kentucky
• Decided: December 17, 1971
• Status: Published

Opinion

GARDNER, Commissioner.

Petitioner, Donald R. Jaggers, seeks a writ of mandamus to require the circuit judge to expunge from the record the notice of appeal and the designátion of record.

Judgment was entered on May 27, 1971, in favor of Jaggers in an action in the Jefferson Circuit Court between Donald R. Jaggers, plaintiff, and Louisville and Jefferson County Metropolitan Sewer District, defendant. On June 21, 1971, an order was entered overruling defendant’s motion for judgment notwithstanding the verdict. On August 20, 1971, more than 30 days after entry of the order overruling defendant’s motion for judgment notwithstanding the verdict, defendant filed a motion to correct the record and to permit it to file a notice of appeal and a designation of record to be effective as of July 16, 1971. Pursuant to a hearing on affidavits the respondent judge decided the original notice of appeal and designation of record, in fact, had been filed within the 30-day period and had been misplaced by someone in the clerk’s office. An order was entered supplying the record with a notice of appeal and a designation of record as of July 16, 1971.

This original proceeding seeks extraordinary relief, which is only granted by this court under unusual circumstances when it is apparent that a great injustice and irreparable injury will result to an applicant who has no adequate remedy by appeal or otherwise. Barker v. Breslin, Ky., 329 S.W.2d 578 (1959). Jaggers states that his reason for asking for the writ of mandamus is that if it is denied he will incur extensive and unnecessary costs in defending the case on appeal. We have held this was insufficient ground for granting the extraordinary relief asked for. See Barker v. Breslin, supra.

Petition for mandamus denied.

All concur.