West v. Shepherd's Committee

Court of Appeals of Kentucky

West v. Shepherd's Committee

105 S.W. 419, 127 Ky. 323, 1907 Ky. LEXIS 132

CourtCourt of Appeals of Kentucky

DecidedNovember 26, 1907

StatusPublished

Cited by6 cases

This text of 105 S.W. 419 (West v. Shepherd's Committee) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

West v. Shepherd's Committee, 105 S.W. 419, 127 Ky. 323, 1907 Ky. LEXIS 132 (Ky. Ct. App. 1907).

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Opinion of the Court by

Chief Justice Q’Rear

Reversing'.

In a proceeding in the Estill county court against A. J. Tharp on a charge of bastardy, judgment was rendered against him for the benefit of the infant for $30 a year for 15 years and for the costs of the action. He prosecuted an appeal to the circuit court of the county, and executed a bond, as required by Civ. Code Prae. section 724, “to the effect that the appellant will satisfy and perform the judgment that shall be rendered upon the appeal,” whereupon an order was issued staying proceedings upon the county court judgment; In the circuit court the appellant moved to dismiss the appeal. That court entered the following order upon the motion: “This-day came the parties, and on motion of appellant, A. J. Tharp, his appeal herein is dismissed. .It is therefore adjudged that appellee is remanded to the judgment rendered herein in the court below, and said court is directed to carry out said judgment. It is therefore adjudged by the court that appellee, Commonwealth, for, etc., recover of appellant, Tharp, the cost in this suit expended.” The appeal bond executed in the case was in these words (omitting caption): “A. J. Tharp having prayed an appeal rendered on the 16th day of August, 1898, by the Estill county, court on a warrant for bastardy against .said appellant for,the.sum of $30 per year for 15 years: Now, we covenant that [325]*325the said A. J. Tharp will satisfy and perform the judgment that shall be rendered upon the appeal. Witness our hands this 16th day of August, 1898. (Signed) A. J. Tharp. J. P. West.” This suit was brought by the committee appointed for the child against J. F. West, the surety, upon the foregoing bond, to recover judgment against him for the satisfaction of the installments which had accrued under the county court judgment, which had not been paid. West’s demurrer to the petition was overruled. Judgment was then rendered against him; his answer presenting no defense other than is shown upon the face of- the petition. He appeals.

Original jurisdiction in bastardy proceedings is vested exclusively in the county court (secton 168, Ky. Stats. 1903), while appeals may be prosecuted to the circuit court (section 978, Ky. Stats. 1903). The Code of Practice not only regulates the manner of taking such appeals, but provides what the effect is upon the judgment appealed from. When the appeal is prosecuted within the time allowed by statute, and the appeal bond executed, the judgment appealed from is merged in the appeal. The action is to be tried anew in the circuit court “as if no judgment had been rendered.” Section 726, Civ. Code Prac. When a bastardy prosecution is appealed to the circuit court, it stands for trial just as if that court had original jurisdiction, and it must be proceeded with, without respect to the trial or judgment in the county court. Wiggins v. Commonwealth, 102 Ky. 40, 19 Ky. Law Rep. 1017, 42 S. W. 1106. If the appellant fails to prosecute, the Code gives an option of either of two remedies to the prosecution. It provides (section 730, Civ. Code Prac.): “If the appellant move to dismiss or fail to prosecute his appeal, it [326]*326shall be at the option of the appellee either to proceed to trial on the appeal or to have judgment rendered for the amount of the original judgment and costs, if it was in his favor, or in bar of the original judgment if it was against him. ’ ’ The judgment rendered on the appeal in the action against Tharp was not in conformity to the foregoing section of the Code, nor was it a judgment at all. The surety undertook that his principal would perform the judgment of the circuit court, which means such judgment as that court could legally render and might render. But he did not undertake to perform the judgment of some other court, to which the circuit court might remand the case without authority. The order that the Commonwealth, for the use of the prosecutrix, was remanded to the judgment rendered in the court below, was not a judgment at all. It gave no relief of itself and it was not within the jurisdiction of the circuit court to give jurisdiction to a county court over a matter of which it had been divested of jurisdiction by operation of a statute of the State.

Nor is this a new question in the practice of this State. In Bennett v. Thompson, an appeal from a justice’s court to the circuit court, the latter adjudged: “The court, being sufficiently advised, adjudges that the judgment of the court below be. reversed, and that the appellants recover of appellee their costs herein and in the court below expended.” This court held the reversal of the judgment was a nullity; that the only power the court had was to render judgment for or against the plaintiff on the merits, or, if the appeal was not regularly prosecuted or the court had not jurisdiction, to dismiss it. The court added: “And until some one of those'things is done the case remains in court.” We conclude [327]*327that the action of the circuit court in Tharp’s case was wholly unauthorized. The bastardy case is still legally pending there for aught that appears here. At any rate no cause of action was shown against appellant as surety on the appeal bond, and none can be shown in the- state of the record here presented.

Judgment reversed, and cause remanded, with directions to sustain the demurrer to the petition.

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Opinion of the Court by

Chief Justice Q’Rear

Reversing'.

In a proceeding in the Estill county court against A. J. Tharp on a charge of bastardy, judgment was rendered against him for the benefit of the infant for $30 a year for 15 years and for the costs of the action. He prosecuted an appeal to the circuit court of the county, and executed a bond, as required by Civ. Code Prae. section 724, “to the effect that the appellant will satisfy and perform the judgment that shall be rendered upon the appeal,” whereupon an order was issued staying proceedings upon the county court judgment; In the circuit court the appellant moved to dismiss the appeal. That court entered the following order upon the motion: “This-day came the parties, and on motion of appellant, A. J. Tharp, his appeal herein is dismissed. .It is therefore adjudged that appellee is remanded to the judgment rendered herein in the court below, and said court is directed to carry out said judgment. It is therefore adjudged by the court that appellee, Commonwealth, for, etc., recover of appellant, Tharp, the cost in this suit expended.” The appeal bond executed in the case was in these words (omitting caption): “A. J. Tharp having prayed an appeal rendered on the 16th day of August, 1898, by the Estill county, court on a warrant for bastardy against .said appellant for,the.sum of $30 per year for 15 years: Now, we covenant that [325]*325the said A. J. Tharp will satisfy and perform the judgment that shall be rendered upon the appeal. Witness our hands this 16th day of August, 1898. (Signed) A. J. Tharp. J. P. West.” This suit was brought by the committee appointed for the child against J. F. West, the surety, upon the foregoing bond, to recover judgment against him for the satisfaction of the installments which had accrued under the county court judgment, which had not been paid. West’s demurrer to the petition was overruled. Judgment was then rendered against him; his answer presenting no defense other than is shown upon the face of- the petition. He appeals.

Original jurisdiction in bastardy proceedings is vested exclusively in the county court (secton 168, Ky. Stats. 1903), while appeals may be prosecuted to the circuit court (section 978, Ky. Stats. 1903). The Code of Practice not only regulates the manner of taking such appeals, but provides what the effect is upon the judgment appealed from. When the appeal is prosecuted within the time allowed by statute, and the appeal bond executed, the judgment appealed from is merged in the appeal. The action is to be tried anew in the circuit court “as if no judgment had been rendered.” Section 726, Civ. Code Prac. When a bastardy prosecution is appealed to the circuit court, it stands for trial just as if that court had original jurisdiction, and it must be proceeded with, without respect to the trial or judgment in the county court. Wiggins v. Commonwealth, 102 Ky. 40, 19 Ky. Law Rep. 1017, 42 S. W. 1106. If the appellant fails to prosecute, the Code gives an option of either of two remedies to the prosecution. It provides (section 730, Civ. Code Prac.): “If the appellant move to dismiss or fail to prosecute his appeal, it [326]*326shall be at the option of the appellee either to proceed to trial on the appeal or to have judgment rendered for the amount of the original judgment and costs, if it was in his favor, or in bar of the original judgment if it was against him. ’ ’ The judgment rendered on the appeal in the action against Tharp was not in conformity to the foregoing section of the Code, nor was it a judgment at all. The surety undertook that his principal would perform the judgment of the circuit court, which means such judgment as that court could legally render and might render. But he did not undertake to perform the judgment of some other court, to which the circuit court might remand the case without authority. The order that the Commonwealth, for the use of the prosecutrix, was remanded to the judgment rendered in the court below, was not a judgment at all. It gave no relief of itself and it was not within the jurisdiction of the circuit court to give jurisdiction to a county court over a matter of which it had been divested of jurisdiction by operation of a statute of the State.

Nor is this a new question in the practice of this State. In Bennett v. Thompson, an appeal from a justice’s court to the circuit court, the latter adjudged: “The court, being sufficiently advised, adjudges that the judgment of the court below be. reversed, and that the appellants recover of appellee their costs herein and in the court below expended.” This court held the reversal of the judgment was a nullity; that the only power the court had was to render judgment for or against the plaintiff on the merits, or, if the appeal was not regularly prosecuted or the court had not jurisdiction, to dismiss it. The court added: “And until some one of those'things is done the case remains in court.” We conclude [327]*327that the action of the circuit court in Tharp’s case was wholly unauthorized. The bastardy case is still legally pending there for aught that appears here. At any rate no cause of action was shown against appellant as surety on the appeal bond, and none can be shown in the- state of the record here presented.

Judgment reversed, and cause remanded, with directions to sustain the demurrer to the petition.

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105 S.W. 419, 127 Ky. 323, 1907 Ky. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-shepherds-committee-kyctapp-1907.

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