Dougherty v. Central Trust Co.

[381] Opinion of the Court on Motion to Dismiss Without Damages by Chief Justice Hobson. Appellee has entered a motion to dismiss the appeal, to discharge the supersedeas, and award damages. The facts are these: On December 17, 1912, appellee recovered a judgment against appellant for its debt, with interest and cost; also a judgment enforcing its lien on the property mortgaged to it. The property was sold under the judgment; appellee bid in the property at the sale and failed to give bond. The court at the February term, 1913, ordered a resale of the property and directed the commissioner to take bond payable to himself for any excess that the real estate should sell for over and above the plaintiff’s debt," interest and cost. Appellee entered a motion at that term to set aside the judgment entered on December 17, 1912, and her motion being overruled, she excepted to this and also excepted to the ruling of the court in ordering the bond for the excess that the real estate might sell for, payable to the commissioner. From these rulings of the court she prayed an appeal to this court which was granted. Thereupon on March 17, 1913, she executed a supersedeas bond before the clerk of the Daviess Circuit Court superseding the original judgment and he issued a supersedeas. She did not file the record in this court within the time allowed by law and for this reason the motion to dismiss the appeal granted by the circuit court as above stated must be sustained. The clerk of the Daviess Circuit Court was without authority to take an appeal bond superseding the original judgment as that judgment was rendered on December 17, 1912, and no appeal had been granted from it by the court rendering the judgment. The clerk was also without authority to issue a supersedeas superseding that judgment. An appeal may be only granted by the court rendering the judgment during the term at which it was rendered. (Civil Code, Sec. 734.) No appeal from this judgment having been granted during the term at which it was rendered, an appeal from it could only be granted by the clerk of this court, and he alone was authorized to take an appeal bond or to issue a supersedeas. The supersedeas issued by the clerk of the Daviess Circuit Court was void and was of no force. (Turner v. Wickliffe, 146 Ky., 776; Torbit, Etc. v. Middlesboro Grocery [382] Co., 147 Ky., 343.) Tbe supersedeás being void, no damages can be awarded. Tbe appeal is' dismissed without damages,, and tbe ■supersedeas is discharged.