Leonard's Adm'r v. Cowling ( 1905 )

Opinion by

Chief Justice Hobson

Overruling motion.

This was an ordinary action brought by L. D. H. Cowling against S. N. Leonard. It was submitted, on the law and facts, to the circuit court without a jury. The court on April 9, 1904, filed a written opinion and his conclusions of law and fact, pursuant to which on that day a judgment was entered in favor of the plaintiff for $605.04. At the conclusion of the judgment are these words: “The defendant excepts and prays an appeal to the Court of Appeals, which is granted.” On April 11, 1904, the defendant filed grounds, and moved the court for a new trial. On May 14th the motion for a new trial was overruled, and sixty days’ time was given the defendant to file a bill of exceptions, but no appeal was then granted. The bill of exceptions was filed on July 9th. On August 5th Leonard executed an appeal bond, and a supersedeas was issued. On September 1st the Jefferson county court appointed J. D. Leech administrator of the estate of S. N. Leonard, who had died in the meantime after the execution of the appeal bond. On January 16, 1905, an order was entered in the circuit court reviving the action in the name of Leech as administrator, and he was then granted an appeal to this court from the judgment in the action. On March 21st he filed the transcript with the clerk of this court, and an appeal was granted him, and the appearance o'f the appellee was entered to the appeal. On April 26th an agreed order of revivor was made in this court, appellee entering her appearance and consenting to the revivor. On May 9th appellee filed notice, and entered a motion to dismiss, with damages, the appeal granted by the circuit court, because the record was not filed in this court twenty days before the second term after the granting of the appeal.

The rule is that the entry of a motion for a new trial suspends the judgment, and that the judgment does not become final until the motion for a new trial is overruled. Though the defendant had been granted an appeal on April 9th, he could not, while insisting upon that appeal, also maintain a motion in the circuit court for a new trial. The entry of his motion for a new trial, and the pressing of that motion, were a.n abandonment of the appeal which had been granted. It may be that so much of the order of April 9th as granted an appeal was an inadvertence, but whether it was or not the defendant had a right to enter his motion for a new trial so as to bring up for review in this court questions which might not otherwise be presented, and to this end he might have had the order of April 9th, so far as it granted an appeal, set aside. The evident purpose of the defendant was not to appeal from the judgment, but to appeal from the order refusing him a new trial so as to bring up every question raised by the record. His adopting this course was necessarily an abandonment of the appeal granted in the original judgment.

The appeal bond was executed after the motion for a new trial was overruled, and was, no doubt, executed under the idea that an appeal had then been granted by the circuit court. But as no appeal was then granted, and as the appeal which was granted on April 9th had been abandoned, the appeal bond and supersedeas are void. The circuit court had lost jurisdiction over the case in January, 1905, and therefore appellant properly filed his record with the clerk of this court, and had an appeal granted here. Appellee having entered her appearance to the appeal, the case stands regularly on the docket for hearing. The motion of the appellee, to dismiss with damages, the appeal granted by the circuit court, is overruled, as the only appeal granted by the circuit court was abandoned.

Appellee is at liberty to proceed to enforce her judgment, unless it is superseded as provided by law, by the execution of a bond before the clerk of this court. The bill of exceptions was filed within the time allowed by the court; the appeal which had been previously granted had been abandoned by the motion for a new trial; the court had power under the Code, when it overruled the motion for new trial, to give time for the filing of the bill of exceptions, not beyond a day in the next term; and the time given was not beyond the limit thus fixed.

Appellee’s motion to strike out the bill of exceptions is therefore overruled.