Monroe v. Brown ( 1915 )

Opinion op the Court by

Judge Nunn.

Dismissing.

This appeal is dismised on appellee’s plea of limitation, because appellant, plaintiff below, failed to file his transcript within two years next after the motion for a new trial was overruled.

The judgment was rendered March 21,1912, and three days thereafter motion for a new trial was overruled. Time was then given until the following June term in which to prepare and file bill of exceptions. Appellant failed to file transcript in the office of the clerk of this (court so that it might be docketed for the second term next after the appeal was granted, as required by Section 738, Civil Code, and no request was made of this court for extension of time. More than two years after the judgment was rendered and the motion for a new trial overruled, that is, on May 14th, 1914, transcript was filed and appeal granted by the clerk of this court.

Section 745 of the Code provides that,

“Appeals shall not be granted except within two years next after the right to appeal first accrued, unless the party applying therefor was -then a defendant in the action, and an infant not under coverture; or of unsound mind; or a prisoner who did not appear by his attorney.”

Appellant does not show himself to be within the exceptions.

The right to appeal was granted when the motion for a new trial was overruled, and that is when it accrued. The extension of time in the lower court for preparation of bills of exceptions neither suspended the right of appeal nor extended the time for filing transcript here, and, therefore, it will not suffice to file the transcript in this court within two years from the time the bill of exceptions was signed and filed in the lower court. The period is computed from the time when the right to appeal accrued. Newman on Pleadings and Practice, Sec. 680; Davis v. Catlettsburg Water Co., 136 Ky., 67; Board of Council of Frankfort v. Farmers Bank, 105 Ky., 814; Northwestern M. & I. Ins. Co. v. Barbour, 96 Ky., 131; City of Louisville v. Muldoon, 43 S. W., 867, 20 K. L. R., 1576; Louisville Chemical Works v. Commonwealth, 8 Bush, 179; Riser v. Southern Planing Mill Co., 66 S. W., 286.

We cannot entertain jurisdiction to review judgments unless the appeal is presented within the time and in the manner provided by statute. Lane v. Commonwealth, 161 Ky., 329; Collins v. Commonwealth, 155 Ky., 706, 160 S. W., 252; Davis v. Catlettsburg Water Co., 136 Ky., 67.

The fact that appellee, defendant, J. T. Brown, died after the judgment was rendered, and no personal representative qualified presented no obstacle in the way of appellant, Monroe, filing his transcript within the prescribed time and prosecuting his appeal by reviving the judgment in this court against his real representatives. Buchanan v. Boyd’s Ex., 131 Ky., 434; Jones v. Finnell, 8 Bush, 25.

The appeal is dismissed.