L. & N. R. R. v. Schmidt
Court of Appeals of Kentucky
Case 24—MOTION— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The intention of counsel for the appellant to prosecute a writ of error to the Supreme Court does not remove this case from the operation of sec. 759, Civil Code. 1. An appeal can not be said to be prosecuted for delay within the meaning of sec. 759, Civil Code, when the judgment of the Court' of Appeals is a conditon precedent to a writ of error to the Supreme Court. 2. The motion to affirm is…
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Case 24—MOTION— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The intention of counsel for the appellant to prosecute a writ of error to the Supreme Court does not remove this case from the operation of sec. 759, Civil Code. 1. An appeal can not be said to be prosecuted for delay within the meaning of sec. 759, Civil Code, when the judgment of the Court' of Appeals is a conditon precedent to a writ of error to the Supreme Court. 2. The motion to affirm is premature. Com. v. Water Co, (Unreported, Record No. 21289.)
1Opinion of the CourtChief Justice Lewis
April 2, 1898, A. L. Sclimidt, etc., recovered a judgment in the Jefferson Circuit Court, Law and Equity division, against the Louisville & Nashville Railroad Company, from which an appeal was granted. April 19, 1898, the plaintiff below filed an authenticated copy of the record in the clerk’s office of the Court of Appeals, and on the same day made a motion in open court to affirm the judgment as á delay case. Section 759, Civ. Code, is as followrs: “If an appeal with a supersedeas be taken for delay merely, the appellee may at any time, move the court to affirm the judg*180ment- as a delay…
2Cited by5 opinions
- Barry v. Burlington Railway & Light Co.Supreme Court of Iowa · 1903
- Ingram v. Cincinnati, F. & S. E. R. R.Court of Appeals of Kentucky · 1907
- Brown v. ThompsonCourt of Appeals of Kentucky (pre-1976) · 1941
- Mattingly's v. BrentsCourt of Appeals of Kentucky · 1914
- Wathen v. WathenCourt of Appeals of Kentucky · 1919