Williams v. Board of Councilmen of City of Frankfort

Opinion of the Court by

Chief Justice Clay

Dismissing appeal.

In the equitable action of Board of Councilmen of City of Frankfort, against E. M. Williams and wife plaintiff recovered a judgment for $259, with certain penalties, interest, and costs, and to secure the judgment was awarded a lien on certain real estate, which, was ordered to be sold. The judgment was rendered and the appeal was granted during the latter part of December, 1927. The judgment was superseded on February 2, 1928. On May 30, 1928, plaintiff below filed in this court copies of the judgment and supersedeas bond, accompanied by a motion to dismiss, with damages, the appeal granted by the Franklin circuit court.

Section 738, Civil Code, is as follows:

“The appellant shall file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of said court next after the granting of the appeal, unless the court extend the time, as, for cause shown, the court may do.”

It is suggested that the words “the second term” mean the second term available to the appellant, and that the motion should not prevail, because the judgment below was rendered and the appeal was granted within less than 20 days before the beginning of the January, 1928, term of this court. The difficulty with this contention grows out of the fact that it does not give full effect to the language of the Code. It requires the transcript to he filed in the office of the clerk of this court ‘ ‘ at least twenty days before the first day of the second term of said court next after the granting of the appeal.’ ’ This language is clear, and free from ambiguity. The term immediate^ following the granting of the appeal is of necessity tifie first term next after the granting of the appeal. That being true, the term next after that term is the second term. We therefore conclude that, if the appeal be granted one day before the beginning of a term of this court, the term following that is the “second term. ’ ’ If, however, the appeal be granted after a term of this court has begun, the term immediately following the next succeeding term is the “second term,” within the meaning of the Code.

As the appeal was granted before the January, 192S, térm of this court, and the transcript was not filed 20 days before the April term of this court, it follows that the transcript was not filed in time, and that the motion to dismiss, with damages, must prevail; and it is so ordered.

Whole court sitting.