Baker v. Burton

Dismissing appeal.

This cause is before us on various motions, including a motion to dismiss the appeal. The motion to dismiss is the only one we need consider. Appellant was found guilty of a forcible detainer by a verdict and judgment thereon entered in the Fayette circuit court on December 14, 1935. Thereafter, on February 1, 1936, the trial court overruled a motion for a new trial, granted an appeal to this court, and allowed appellant 60 days within which to file her bill of exceptions. Instead of prosecuting the appeal granted below, appellant filed a copy of the judgment in this court on March 25, 1936 (within 60 days of the order of February 1, 1936), and asked that the clerk of the Court of Appeals grant her an appeal.

Until the motion and grounds for a new trial were overruled, the judgment was suspended. The Fayette circuit court is a court of continuous session, and it therefore had exclusive jurisdiction for 60 days after the order overruling the motion for a new trial to grant an appeal to this court. Wermeling v. Wermeling, 224 Ky. 107, 5 S.W.2d 893; Miller, Appellate Practice, sec. 83. The appeal granted by the clerk of the Court of Appeals, within the 60-day period, is a nullity, and must be dismissed.

Appeal dismissed.