Turner v. Wickliffe

Opinion of the Court by Chief Justice Hobson On motion to dismiss appeal with damages. Section 749 of tbe Code regulating supersedeas on appeals to this court is as follows: “Tbe bond must be executed before tbe clerk of tbe court rendering tbe judgment if tbe appeal be granted by that court. In other cases it must be executed before the clerk of tbe Court of Appeals. “Tbe clerk of tbe court rendering tbe judgment shall issue tbe supersedeas if tbe bond be executed before him before tbe expiration of the time for filing a copy of tbe record in tbe clerk’s office of tbe Court of Appeals, pursuant to Section 738. In other cases it must be issued by tbe clerk of tbe Court of Appeals.” This appeal was granted September 6, 1911. Tbe time for filing tbe record in this court expired in December, 1911. Tbe bond was executed before tbe clerk of tbe Circuit Court on February 5, 1912, and tbe su-persedeas was issued by him on tbe. same day. He bad no power then to issue a,- supersedeas. He bad power then to take tbe bond, but tbe supersedeas could properly then be issued only by tbe clerk of this court. The [777] •supersedeas being issued without authority was void and did not suspend the execution of the judgment. No damages can therefore be awarded. The motion to dismiss the appeal with costs is sustained, the transcript not having been filed in time; but the motion for ten per cent damages is overruled.