xt70zp3vt865_300 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky. Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Sandy River Cannel Coal Company v. Caudill, John W text Sandy River Cannel Coal Company v. Caudill, John W 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_27/Folder_10/8258.pdf 1898-1899 1899 1898-1899 section false xt70zp3vt865_300 xt70zp3vt865 C 0 U R T 0 F A P P E A L S o F K E N T U d K Y .
SI‘NDY RIVER CANNEL GOAL COMPANY, Appellant,
vs. ((MotiOn to dismiss APPEAL with damages.
‘ JOHN W. GAUDILL, \ppellee.
The appellee, John W. Gaudill, moves the -
.. _ GOurt to dismiss the appeal herein, with damages, upon
t "d the follOWing grounds and for the following reasons:" if
. I. ' FIRST:- The appellant did not prosecute his ' I If
g .‘ appeal as required by law in this: he did not file
transcript of the reCOrd within twenty days before the>
. first day of the second term of the Appellate Court;
After the rendition of the Judgment; nor within the
- I time giVen appellant by the Court extending the time
in which to file transcript after the judgment of
l the JOhnsOn Circuit Court.
SEGtND:- Because the appellant has abandoned his
appeal and the time in whiCh it is and was allowed by
law to prOSeCute the appeal has 10ng since elapsed.
THIRD:- The judgment'againht the appellant Sandy
River ﬂannel Coal Gompmiy- was rendered May 25, l898,
: and an appeal granted; The first term of the Jourt of
Appeals began September 19i€day, 1898; the second term
I . (1) .

of the GOurt of Appeals after the rendition of the
judgment and granting the appeal, began January 2, 1899.
The transcript should have been filed in Appellate dourt
' twenty days the first of the January term, January 2, 1899;
but on the ninth day of December 1898, on motion of
appellant, time was extended thirty days in which to
file transcript. That the transcript was not filed
Xwithin the time allowed- 30 days, which expired January
9, 1899, and has not yet been filed.

The appellee, nor his attorneys made any
agreement to extend the time to file transcript.

Wherefore he prays that-appeal be dismissed,
with damages and costs. ‘ i ‘

*************************************
$$*************************

COURT 0? APPEALS of KENTUCKY.

The Sandy River Gannel GOel Company, Appellant.
vs. )) ORDER.

John W. Saudill, Appellee.
—o-d-0-o-O—o-o-o-o-o-o-o-o-o—o-o-o-o-0—

This day came the appellee, John W. daudill, and ‘s
produced and filed copy of the verdiCt, judgment and order
granting an appeal from the judgment herein to the Gourt of
Appeals and COpy of the supersedeas bond herein, and superse-
deas and also affidavit of James E. Stewart, one of appellee's
attorneys herein and thereupon moved the dourtko dismiss ap-
pellant's appeal herein, with damages upon the grounds and
for the reasons set Out in written motion hereto attaChed,
and the Court being sufficiently advised, orders and adjudges}

(2) ~

ORDERS JOHN SUN GIRGUIT JUURT.
May Tirm, ninth day, May 25, 1898.
John W. Gaudill, Plaintiff.
vs.
Saidy River Jannel Goal 00mpany, Defendant.

The jury herein met pursuant to adjournment and
after hearing ConClusiOn of argument of dounsel retired
to consider of their verdict, and returned into dourt the
following verdict to-wit: we, the jury, agree and find
for the plaintiff and assess his damages at $3291.00,

, Three thousand two hundred and ninety one dollars.
James Rice, One of the Jury. I

It is therefore adjudged by the court, that
the plaintiff, John W. Caudill, reCOVer Of the defendant,
the Sandy River Gannel Coal Co., the sum of three

‘ thousand two hundred and ninety one dollars, with
interest from the 25th. day of May 1898, until paid
tOgether with his costs herein expended for which he
may have eXeCution and this Cause is nOw filed away:
To this judgment defendant objects and exCepts and
prays an appeal to the Court of Appeals JhiCh is granted.
(5) ,

SUPERSEDEAS BOND.
Sandy River dannel Coal Company, Appellant.
Upon Appeal from a Judgment of the
Vs. ))(( Johnson dircuit Gourt rendered the
25th. day of May, 1898.
John W. Jaudill, Appellee.
Whereas said Appellant have taken an Appeal
g frOm the Judgment of this GOurt rendered on the 25th.
day of May, 1898, against The Sandy River Gannel Goal '
30., in favor of the Appellee JOhn W. Uaudill for the
sum of three thousand two hundred and ninety one dollars
for damages, and the Appellant desire to Supersede said
Judgment. Now We, The Sandy River Jannel Goal JOmpany,
9. A. Stacy, and J. P. Dieter, sureties, do hereby
COVenant to and with the appellee, John W. Jaudill,
That the appellant will pay to the appellee all costs and
damages that shall be adjudged against the appellant
on the appeal, and also that theﬁyill satisfy and
perform the said Judgment in case it shall be affirmed,
and any judgment or order ﬁhiCh the court of Appeals may
render, Or order to be rendered by the inferior Jourt, .
not exceeding in amount or value the judgment aforesaid,
and also pay all rents, hire or damage which, during the
pendenCy of the appeal, may accrue on any part of the
prOperty of which the appellee is kept out of possession
by reason of the Appeal.
m (4)

Witness our hands, this 20th. day of June 1898.
The Sandy River Cannel Goal Co., By John P. Wells,
attorney in fact. . /
f/Zfll.s$tu7(, MW/wau/ Mfr/“X-
J. P. Dieter, by John P. Wells, AttOrney In faCt.

John P. Wells.
attest: I. G. Rice, Clerk.
Filed 20th. day of June, 1898.
I. G. Rice, 3. J. a. e.
SUPERSEDEAS.
Johnson Circuit Court.
Sandy River Cannel Coal Company, Appellant.
v s. )) (( SUPERSEDEAS.

John W. Caudill, Appellee.

I do certify that an appeal has been granted
by the JOhnSOn Circuit Court from a judgment renderéd
at its May term, 1898, in favor of John W. Jaudill,
appellee, against Sandy River Cannel GOal JOmpany,
Appellant, for three thOusand two hundred and ninety one
dollars and that Sapersedeas Bond has been eXecuted,
therefore the appellee and all others are commanded to
stay proceedings on the judgment above recited.

Witness my hand as Clerk of said Court this
27th. day of June 1898.

I. G. Rice, Clerk.
(5)

. ‘ 3%
Executed by deliVering a true copy of this
summOns to J. W. Walker, AttOrney for plaintiff John
Gaudill not being found in my County, this June 29th.,
1898.
s. P. King, Sheriff J. o.

The Sandy River Gannel Coal Company, Appellant. I
vs. )))) GERTIEIGATE.

John W. Caudill, Appellee.

I, I. G. Rice, Clerk of the Johnson circuit
dour; do certify that the foregoing two pages and 11
lines of record is a true and correct COpy of the
part of the record it purports to be in the case of
John W. Gaudill, against the Sandy River Gannel Goal
Company, and that the same is on file in my office.

Witness my hand as Clerk of Johnson Circuit
Jourt this 14th. day of April, 1899.

I. G- Rice, a. J. G. d.
(6)

cover 03' l’xPPEALS os KENT‘UU‘KY.‘
The Sandy River Gannel COsl Company, Appellant.

. vs. // i‘xr‘E’IDi'xVIT.

John w. Caudill, ' Appellee.

The sffiant states that he is one of the
attorneys for the appellee, and has had the whole
management of this case; that no notdce was served
on him of the intended mOtion to be made on the 9th.
day of December, l898 to this Court fOr an extenSiOn
of the time thirty dais, or any other length of time,

I to appellant in which to fipe transcript of the reCOrd
in this case; and the motion was made and order
, entered extending the time 50 days from December 9, 18é8
in which bdﬁile the transcript without notice to him
or appellee. Says he took it for granted the
' ‘transcript would be filed within the time allowed by

. im . D .
the exten31on and ages it no rurther thOught until he
received a copy of the Docket for the April term 1899
and said case did not appear 0n the docket; he at
once wrote the Clerk, who sent him cepy-of all papers
on file, motiOn for extensiOn, affidavit and a basis
for the motion and the order therein. That no other
papers had been filed in said case. That ht—e ﬂﬁéL
time in which the appellant had by leave to file said
transcript, which was twenty days before the beginning
of the January term, 1899, had expired and the time
appellant had by the extension, to-wit thirty days,

has long since expired. Says he never consented or
agreed that the transcript should not be filed within
the time allowed by order of the COurt and all the delays
have been without his consent and without his knowledgeo 3
That the appellee told him no notiCe had been served .
on him and in referenCe to said Case that he neVer
did consent to oﬂagree to anything, always referring
them to his atorneys. That no part of the judgment
has been paid to him and that to the best of his
knowledge and belief no part of same has been paid.
James E. Stewart.
Sworn to before me by James E. Stewart,
April 17, let. 1899.
T. L. Stewart, .
Notary Public in and fcr
1 Lawrence County, KentuCky.
My commissiOn expires April 15, 1902.
i J C U R T C F A P P E A L S 0 F K E N T U J K Y .
The Sandy River Cannel GOal COmPany, Appellant.
vs. // BRIEF for APPELLEE On MOTION to DISMISS APPEAL. :
'John W. daudill, Appellee.
---—--ooo---—--
Case Stated:
0n the 25th. day of May, during the May term
1898 of the JOhnSOn Circuit Court, the appellee reCOVered
a judgment against the appellant, The Sandy River Jannel
Coal Company for $3291.00 with ﬁlterest and costs;
(8)

to the judgment the appellant excepted and prayed an
appeal to the COurt of Appeals, which was granted, and
filed grounds for a new trial, which were over-ruled,
and judgment rendered and it excepted and prayed an
appeal to the Coart of Appeals, which was granted.
on the 20 day of June, 1898, the n0w
appellant exeCuted supersedeas bond and Caused supresedeas
to issue, thereby suspending the collection of the
judgment; 'On the 9th day of December, 1898, the
appellant filed affidavit and motion in the GOurt of
Appeals movingihe Court to extend the time thirty days
in which to file transcript and the motion was sustained,
and an order made extending the time thirty (30) days
from December 9th., 1898, in whiCh to fibe tranSCript.
No further step has been taken in the case and the
judgment still stands superseded.
The judgmentmas rendered May 25, 1898;

the September term 1898 of the Court of Appeals began
September 19, l898 and the next term of the Jourt of
Appeals began January 2, 1899. The appellant had
until the 12th day of December, 1898, in which to file
transcript, being twenty days before t,;e beginning of the
second term of the GOurt of Appeals after the judgment
in the Circuit Court mas rendered. tn the 9th. day
Of December, 1898, on mOtiOn of the appellant, The

‘ Sandy River Gannel Coal Gomppny, this Court extended
the time in which to file transcript thirty days time
being asked appellant, which was given.

_ <9)

The thirty days expired on the ninth day of
January, 1899, and the transcript was not filed
within said thirty days allowed by the Court and

’ the same has not been filed yet, April 5, 1899.

Section 738 of Code provides that the
transcript shall be filed twenty days before the first
day of the beginning of the second term Of the Appellate
COurt after the rendition of the judgment; and Section
740 of the Code provides that if appellant fails to
file ranscript, within the time allowed by section 768,5
his appeal shall be dismissed. SeCtiOn 738 prOVides
that for cause shOwn the Court may extend the time to
file transcript, which was done in this case on the 9th
day of December 1898, extending the time thirty days.
The appellant did not file the transCript mithin the
thirty days, nor has the time been larged enlarged, or
extended in which to file transCript.

We submit that the appellant has forfeited his
right to further prOseCute the appeal granted in the
Circuit Court and that the appeal should be dismissed
with damages. It was the duty of appellant to have
filed the transcript within the thirty days extension
of time the Court gave him and having failed to do so,
Or offering any reasOn for delay, he cannot at this
late day be heard. It is not an open question;
it has been decided by this Court in a number of cases
that the appeal granted by the CirCuit COurt, where tm
same is superseded, must be dismiSSed if the transcript

(10)

is not filed twenty days before the beginning of the
‘ second term Of the appellate COurt after the renditiOn
of the judgment, and on this point we call the JOurt's
attentiOn to Bailey etc., against Louisville and
Nashville R. R. 19 R. 1617; City of Bowling Green against
Elrod, 14 Bush 216; Welch Jr., against National dash
Register Company, 19 Rep. 1857; Wright, Hardin and
Hay vs. Wolfolk 14 Bush 308.
Had the Court not extended the time in which
to file transCript, it would have had to be filed tvv/‘enty
days before the beginning of the January term, 1899,
or its appeal would have been dismissed on motion.
The only additional rights the appellant acquired by ‘
the extension of time was thirty days lOnger tme in
whiCh to file the transcript, and at the end of thiﬁty
days all rights under the appeal granted by the JirCuit
Court came to an end and appellant was, and is,
subject to the motiOn of the appellee and should he make :
the motion to dismiss the appeal, it must prevail, 5
with damages and the appellant will be relegated to 3
his appeal sued out in Appellate Gourt if he desires - f
' to prosecute one. %
We have nOw made this statement lOnger than .
we should and upon the law and the facts as they appear .
in this record we ask that Our motion to dismiss with
damages be sustained. :
Respectfully, 1
Stewart and Stewart, ;
Counsel for appellee, J. W. daadill. ‘
Stewart a Stewart, AttOneyS, Eouisa, Ky.
“ 11°: L; .

. 1’ A’U‘I‘HbirllTlES CITED. '1

Civil Code of Practice, Section -----—---—--- 758.

61111 Code of Practice, SeCtiOn ------—-—-——— 740.

Bailey against Louisville dc Nashville R. R.

19 Reporter, -------------——------—-----—-—~~ 1617.

Jity of B0 x'ling Green Vs. Elrod 14: Bush ——-—- 216.

WelGh Jr., vs. National Cash Register Gog

19 Reporter, ------—-——-----—-----——-—~-———-_ 1857.

Wright, Hardin and Hays vs. Wolfolk, 14 Bueh,- 508. I
/' ' 1:152)