Blalock v. Atwood

Opinion of the Court by Chief Justice Hobson— Dismissing Appeal. The judgment from which this appeal is prosecuted wais rendered at the November term, 1911, of the circuit court, and the appeal was then granted. Appellant was given until the next term to file a bill of exceptions. At the next term of the court, the appellant tendered his bill of exceptions, but the judge who presided at the trial was absent at that term of the court, and the matter was passed until the next term for the regular judge to sign, approve and file the bill of exceptions. The transcript was not filed in this court in time for the April term, and the time was not extended by an order of this court. The appellee has entered a motion to dismiss the appeal because the transcript was not filed in time. ' Sections 334, 738 and 740 of the Civil Code are as follows: “The party objecting must except when the decision is made; and time may be given to prepare a bill of exceptions, but not beyond a day in the succeeding term, to be fixed by the court. If the judge of said court, for any cause, does not preside at the said term of court, or no court is held, then the. party offering the bill of exceptions shall have until the next term of the court to perfect and prepare the bill of exceptions.” (Sec. 334.) “The appellant shall file the transcript in the office of the cleric of the Court of Appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time; as, for cause shown, the court may do.” (Sec. 738.) [829] “No appeal shall he docketed by the clerk until the appellant complies with the provisions of sections 739, and if he fail to file the transcript within the time allowed by section 738, or by the court pursuant thereto, his appeal shall be dismissed.” (Sec. 740.) When time is given to file a bill of exceptions, the time for filing' the transcript may be extended by order of this court pursuant to section 738 of the Civil Code. If this is not done and the transcript is not filed within the time allowed by law, the appeal will be dismissed, although the appellant has been delayed without his fault in filing the bill of exceptions. ' In such a state of case, he may, after this appeal is dismissed, sue out another appeal before the clerk of this court; but this appeal must, be dismissed under the mandate of the statute. (Civil Code, See. 740; Tennessee Central Railroad Co. v. Reeves, 143 Ky., 467.) The appeal is dismissed.