City of Pikeville v. Dils

Opinion op the .Court by

Judge Miller

Affirming.

"When the fiscal court of Pike county constructed a bridge across the Big Sandy river, at Pikeville, in 1908, the embankment approach to the bridge upon the town side of the river occupied, practically, the whole of Shop street for the distance of one city block. This was done pursuant to an ordinance of the city of Pikeville. The end of the embankment next to the river was between four and five feet high. The appellees owned a lot extending along Shop street on the west side of the embankment.

On May 5, 1913, John A. Dils, and his mother instituted this action against Pike county and the city of Pikeville, to recover damages for the injuries to their property by the appropriation of the street, and recovered a verdict for $1,016.00, against the city of Pike-ville. The jury returned a verdict in favor of Pike county. The city appeals.

It will first be necessary to pass upon two questions of practice arising in this court.

1. Upon motion of the city of Pikeville, the clerk of this court granted it a cross-appeal against Pike county. But, since section 755 of the Civil Code of Practice authorizes a cross-appeal only in behalf of an appellee against an appellant, the action of the clerk in granting the appellant a cross-appeal against a stranger to the appeal, was unauthorized. Parties not before this court on the appeal are not affected by a cross-appeal. The judgment in favor of Pike county can only be reviewed by an original appeal therefrom; not by a cross-appeal from the judgment against the city, as is here attempted. Newman’s Pleading and Practice, 2nd ed., sec. 696; Blessing v. Hessing, 130 Ky. 685. The cross-appeal is dismissed.

2. Appellees have made a motion to strike the hill of exceptions from the record, upon the ground that it was not signed by the judge who tried the case. The record shows that the case was tried in November, 1915, by Judge Eoberson, who was, at that time, the regular circuit judge for that judicial district. The motion for a new trial was overruled in November, 1915, and time was given the appellant until the 20th day of the February, 1916, term, to make and file a bill of exceptions. In the meantime Judge Butler had, in January 1916, succeeded Judge Eoberson as the judge of that court; and, when the bill of exceptions was presented in February, 1916, it was approved and signed by both Judge Butler and Judge Eoberson. This, however, did not satisfy the statute, since neither of them, except by consent, had the right to sign the bill of exceptions. Where the judge who tried the case has ceased to hold office before the bill of exceptions is filed, the only course for the litigant is to make a bystanders’ bill. Sandy Valley & Elkhorn Co. v. Moore, 175 Ky. 163; Combs v. Combs, 175 Ky. 523. The motion to strike the bill of exceptions from the record is sustained.

3. There being no bill of exceptions in the record, the only question to be determined is whether the pleadings sustain the judgment. Martin v. Richardson, 94 Ky. 183; Campbell v. Campbell, 130 Ky. 714; Clark v. Wallace Oil Co., 155 Ky. 838; Tyler v. Woerner, 158 Ky. 711. The pleadings in the record undoubtedly sustain the judgment.

4. It is insisted, however, that the court erred in overruling the city’s motion to file three amended answers offering new defenses. But two of the amended answers were not made parts of the record; and, the mere fact that the clerk copied them into the record did not make them parts of it, for the purpose of an appeal, in the absence of a bill of exceptions or an order of court so making them. Hortsman v. C. & L. R. R. Co., 18 B. M. 218; Lewis’s Admr. v. Bowling Green Ry. Co., 147 Ky. 460, 39 L. R. A. (N. S.) 929; Commonwealth v. P. C. C. & St. L. R. Co., 163 Ky. 646.

5. The other rejected answer which was made a part of the record by an order of court, offered the defense that the new grade made by the embankment was the original grade of the street.

But this unverified answer was not tendered until the fourth day of the trial and after the case was ready to he submitted to the jury; and no cause was shown for the delay. Under the circumstances the trial court did not abuse its discretion in rejecting the pleading.

Judgment affirmed.