Fisher v. Carrico

This is a writ of error to the superior court of the state of Kentucky for the review of a judgment of that court, and the defendant, although uniting with the plaintiff in submitting the case for hearing on its merits, has moved to dismiss the writ for want of jurisdiction, because the superior court is not the highest court of the state in which a decision in the suit could be had. The record shows a suit by W. H. Perkins against James H. Fisher in the circuit court of Daviess county for the recovery of money, and a judgment therein for Fisher. Afterwards this judgment was reversed by the court of appeals of the state, and the cause remanded for further proceedings. When the case got back to the circuit court, additional pleadings were filed, and a trial had, which resulted in a judgment in favor of Perkins for less than $1,000. From this judgment Fisher appealed to the court of appeals. Before this appeal was decided the superior court of the state was organized, and the case was transferred, in due course of law, to that court for decision.

Those parts of the act establishing the superior court which relate to the appellate jurisdiction of the court of appeals for the review of its judgments are as follows:

'Sec. 5. The court of appeals shall have appellate jurisdiction over the final orders and judgments of the superior court in all cases except the following: (1) Those for fines or for the recovery of money or personal property where the amount of the fine, or the value in controversy, is less than one thousand dollars, exclusive of interest and costs; (2) those where the judgment of the lower court had been affirmed by the superior court without a dissenting vote. But if, in any case coming within either of the above exceptions, any two of the judges of the superior court shall certify that, in their opinion, the question involved is novel, and is one of sufficient importance, the party against whom the decision was rendered shall be entitled to take the same by appeal to the court of appeals as in other cases.

'Sec. 6. If an appeal shall be taken to the court of appeals of which the superior court has jurisdiction, or if taken to the superior court when the court of appeals has jurisdiction, it shall not be dismissed, but shall be transferred to the court having jurisdiction.

'Sec. 7. All appeals from the superior court to the court of appeals shall be prayed and granted in the superior court. But no appeal shall be granted after six months from the time the right to appeal first accrued, unless the party applying therefor was a defendant in the original action, and an infant not under coverture, or of unsound mind, or a prisoner who did not appear by his attorney, in which cases an appeal may be granted to such parties on their representatives wt hin twelve months after their death, or the removal of their disabilities, whichever may first occur.' Acts 1881, p. 113.

The judgment of the circuit court was affirmed by the superior court 'without a dissenting vote,' and for the review of that judgment of affirmance this writ of error was brought, no application having been previously made to the superior court for the allowance of an appeal to the court of appeals.

''Geo. W. Jolly'', for plaintiff in error.

C. S. Walker, for defendant in error.

WAITE, C. J.