Lundy v. Hunt

276 S.W. 838, 210 Ky. 803, 1925 Ky. LEXIS 784

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 27, 1925
• Status: Published

Opinion

Opinion of the Court by

Judge McCandless

Affirming.

This is a forcible detainer proceeding begun in September, 1921, by James Lundy against Perry Hunt in a justice’s court in Pike county. An inquisition was regularly field by the justice and a verdict of guilty returned against Hunt by the jury, whereupon Hunt executed bond and traversed the inquisition. The original papers were transferred to the circuit court but were inadvertently “filed away” without the case being docketed and nothing was done until the spring of 1924, when on motion of Lundy the case was dismissed for want of prosecution. That judgment was afterward set aside and the case continued to the July term, a‘t which time a jury trial was had, and a directed verdict of “not guilty” was returned by the jury.

No motion for a new trial was filed, nor does the record disclose any order of court filing or tendering a bill of exceptions. There is in the record, however, a paper approved by the circuit judge and purporting to be such a bill. It refers to certain depositions as being lead and contains a transcript of depositions without identifying them as being the ones used in the trial, nor 'does it show any exception was taken to any ruling .of the court during the progress of the trial. Such a paper is ineffectual for any purpose.

A motion for a new trial is necessary in order to bring before this court the alleged error in giving a peremptory instruction, and in the absence of such a motion this court will not consider that ground. Kettler v. Slaughter, 21 Rep. 1937.

Again, in the absence of a motion and grounds for a new trial and of a bill of exceptions, there is nothing for the court to consider except the pleadings in the case, and these support the judgment, which is accordingly affirmed.