Trustees of Eddyville Graded Common School v. Board of Education of Kuttawa Common School District No. 29

131 S.W. 504, 140 Ky. 676, 1910 Ky. LEXIS 337

• Court: Court of Appeals of Kentucky
• Decided: November 18, 1910
• Status: Published

Opinion

Response by

Judge Hobson

to Petition for Rehearing.

Appellee has filed a petition for rehearing’, and has entered a motion to set aside the order overruling its motion for damages on the supersedeas bond. Complaint is made in the petition that the court allowed the appellant to dismiss the appeal without prejudice when no notice had been given appellee of the motion. It has not been customary for the court to require notice of motions of this sort, for the reason that the appellant has the rig’ht to dismiss his appeal before submission, and its dismissal does not affect the cross appeal if there be one. Appellee entered a motion for damages, and there could be no damag’es on the supersedeas until the appeal was dismissed. The motion was entered on April 19th; appellant filed a response to the motion and appellee filed no reply to the response, and filed no counter affidavit. The court took up the motion on April 29th, and ruled upon upon it, supposing that there was no dispute as to the fact that a supersedeas had not issued. The petition for rehearing is based on the ground that the proof is not sufficient to show that a supersedeas did not issue. We have carefully examined the affidavits filed now, and they satisfy us that a supersedeas did not issue. By section 547 of the Code, affidavits may be read as evidence upon, a motion.

The petition for rehearing is overruled.