Powell v. Minter

284 S.W. 1018, 215 Ky. 198, 1926 Ky. LEXIS 677

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 15, 1926
• Status: Published

Opinion

Opinion op the Court by

Commissioner Hobson—

Dismissing appeal.

H. F. Minter and "Walker McFarland brought this. action alleging that they as sureties in a note of W. P. Terry to the Jackson County Bank for $55.00, had paid the note and that the money was borrowed to make the first payment on a tract of land bought by W. P. Terry from Greeley Hisel, and that after Terry had received the deed from Hisel he executed to them a mortgage on the land to secure the payment of the money. They also alleged that Joe Powell was a'holder in due course of notes to the amount of $300.00 for the balance of the. unpaid purchase money of the land. Powell filed his.answer and cróss-pétition setting iip his notes for $300.00. Proof was taken "and on final hearing the circuit court adjudged the plaintiffs a lien'on the land under their mortgage and adjudged Powell no lien on the land but gave him a judgment for his_money against the personal estate of W.' P. Terry. To this judgment Powell excepted aiid prayed an appeal to "this court, which was" granted. Powell has filed the" record in this court under the appeal granted by the circuit court but has entered' no motion for an appeal.

The amount of the judgment in favor of Minter and McFarland is only $55.00. The amount of Powell’s claim Is $300.00. But only $55.00 is in -controversy between him, and Minter and McFarland. By section 950-, Kentucky Statutes, an appeal lies to this court as a matter •of right in an action to enforce a statutory lien on land, but a vendor’s- lien or mortgage lien is- not a statutory-lien. Gering v. Hoke, 164 Ky. 722.

No appeal lies in this action, therefore, as a matter •of right, and the circuit court was without jurisdiction to grant an appeal. (Childers v. Ratliff, 164 Ky. 123). By section 950, Kentucky Statutes, in such cases where the amount in controversy is between $200.00 and $500.00 this court may grant an appeal on motion.

The rule on the' subject is thus stated:

“If no appeal is attempted to be granted below, or having been granted is abandoned,' the filing of the record in the office of the -clerk of this court will be treated as a motion for appeal; but if the appellant relies upon the appeal attempted to be granted below, a dismissal will be ordered without a consideration of the merits of the case. The proper practice is to file the record in the office of the clerk of this court and enter motion for an appeal, which motion will be passed upon after an examination of the record and a consideration of the -case upon its merits.” Phelps, et al. v. Johnson, 182 Ky. 755.

This is the rule steadily maintained by the court, and under the rule, there being no motion for an appeal here, the appeal must be dismissed.

Appeal dismissed.