Cain v. City of Elsmere

STEINFELD, Judge. For approximately 16 years appellant, Cain, had been engaged in the automobile wrecking business in the City of Elsmere. The occupational license imposed by the city for those engaged in automobile wrecking had been $10.00 per year. It was increased to $15.00, $35.00, $50.00 and finally $1,000.00 per year. Cain attacked the $1,000.00 per year license and asked a declaration of rights. The judgment of the trial court was adverse to his contention, hence this appeal. The record reveals procedural steps as follows: January 5, 1966 Judgment entered. January‘25, 1966 Motion made to set aside judgment and amend the -findings of fact and conclusions of law and judgment. January 26, 1967 Order entered overruling motion of January 25, 1966. February 7, 1967 Notice of appeal filed. March 8, 1967 Schedule for appeal filed. June 6, 1967 Statement of appeal filed. Seeking dismissal of this appeal the ap-pellee, among other things, contends that the motion made January 25, 1966, to set aside the judgment was not timely pursuant to CR 59.05 which required that such a motion “ * * * shall be served not later than ten days after entry of the final judgment.” We agree. Whittenberg Eng. & Const. Co. v. Liberty Mutual Ins. Co., Ky., 390 S.W.2d 877 (1965). CR 73.02 provides that “ * * * the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from, * * * The appeal, not having been filed within the time permitted by the rule, is dismissed. Judd v. Judd, Ky., 387 S.W.2d 311 (1965). All concur.