October 20, 2012

Ferrell v. Bauer Cooperage Co., Wayne, 1914



Ferrell v. Bauer Cooperage Company, et al.


156 Ky. 749; 161 S.W. 1120; 1914 Ky. LEXIS 183

January 9, 1914, Decided

PRIOR HISTORY:  [***1]  Appeal from Wayne Circuit Court. 

DISPOSITION: Appellee's motion sustained. 

COUNSEL: JOE BERTRAM & SON for appellant.

J. M. KENNEDY and P. R. HARRISON for appellees. 



 [*749]   [**1121]  OPINION OF THE COURT BY JUDGE MILLER--Sustaining Motion to Strike Map from the Record.

Upon notice given, appellee has moved the court to strike from the record a map or plat of a survey made by W. C. Bell, upon the ground that it was not used upon the trial or made a part of the record by the Bill of Exceptions.

The affidavits show that two maps were used by the parties upon the trial, and that they were lost after the trial, and before the Bill of Exceptions was signed by the circuit judge. Thereafter, in making up the record for the appeal, appellant's attorney handed the clerk a map, which the affidavits show is a correct copy of the maps used upon the trial. The clerk placed said map in the transcript, and it has been filed with it in this court.

In the absence of an agreement of record, by the parties to the appeal, the map cannot be considered. Appeals are heard upon the record as shown by the Bill of Exceptions, which is made by the trial judge; not by the clerk.

 [***2]  When records are lost they should, in the absence of an agreement of record, be supplied in the manner provided by Chapter 106 of the Kentucky Statutes.

The circuit court clerk was without authority to make the plat a part of the record, and the appellee's motion to strike it from the record is sustained.

However, since the affidavits show the loss of the maps beyond recovery, appellant is given thirty days in which to supply the record in the circuit court.

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