Lady v. Lady

9 S.W.2d 1003, 225 Ky. 679, 1928 Ky. LEXIS 846

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 5, 1928
• Status: Published

Opinion

Opinion op the Court by

Judge Dietzman’

Dismissing appeal.

This suit was brought under the Declaratory Judgment Act. The judgment was entered on May 10, 1928. The appeal was lodged in this court on August 6, 1928, more than 60 days after the date of the judgment. Section 5 of the Declaratory Judgment Act provides:

“Any party aggrieved by a declaratory judgment, order or decree, rendered in the circuit court, may within sixty days after such judgment, order or decree has become final, unless the time be extended by the court, but in no event in courts of continuous session beyond 120 days from the time that such-judgment, order or decree became final, and in other courts beyond a day in the succeeding term to that in which the judgment, order or decree became final; take and perfect an appeal to the Court of Appeals in the manner now provided by law for appeals. Such appeal shall be at once docketed in the Court of Appeals, and may be advanced for immediate hearing and submission. The Court of Appeals shall prepare proper rules as to arguments and briefs applicable to cases brought before it under this act, and advanced as above prescribed. Should the party aggrieved not take and perfect an appeal-to the Court of Appeals, within the time above provided, the declaratory judgment, order or decree, shall become final, and no appeal or proceeding to modify or reverse shall thereafter be allowed.” Civil Code of Practice, sec. 639a5.

There was no order obtained extending the time for filing the record in this court. In the case of Murray Motor Co. v. Overby, 217 Ky. 198, 289 S. W. 307, we held that the provisions of section 5 above quoted are jurisdictional so far as this court is concerned, and necessarily mandatory, and that a failure to file the transcript for an appeal from a declaratory judgment in this court within 60 days from the rendition of the judgment of the lower court, unless the time be extended as provided in this section, requires a dismissal of the appeal.

It necessarily follows, therefore, that the appeal in this case must be, and it is hereby, dismissed for lack of jurisdiction in this court to consider it.