Langhorn, Johnson & Co. v. Wiley

87 S.W. 266, 120 Ky. 511, 1905 Ky. LEXIS 125

Opinion

Opinion by

Chief Justice Hobson

Dismissing appeal.

The judgment appealed from was rendered and the appeal was granted on November 22, 1904. The appeal bond was given on December 12th; the supersedeas issued on December 13th. On May 16th appellee filed a copy of the judgment and bond, and entered a motion to dismiss the appeal, the record not having been filed in this court by the appellant. In response to the motion appellant shows that time was given to file a bill of exceptions; that after the hill of exceptions was filed the clerk did not complete the t’ mscript, and for this reason, it was not filed for the April term, although appellant used every effort to get it made out.

Section 738 of the Civil Code of Practice is as follows: “The appellant shall file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time; as, for cause shown, the court may do.”

Section 740 is as follows: “No appeal shall be docketed by the clerk until the appellant complies with the provisions of sec. seven hundred and thirty-nine (739), and if he fail to file the transcript within the time allowed by sec. seven hundred and thirty-eight (738), or by the court pur-' suant thereto, his appeal shall be dismissed.” The facts stated in the response would* be sufficient to justify the court in extending the time for filing the transcript as provided in sec. 738, if a motion to this effect had been made in this court by appellant before the time expired. But after the time has expired the court is without power in the premises, and under the mandate of the statute the appeal must be dismissed.

Appeal dismissed.