§ 725 (848) Original papers transmitted to Appellate Court. The judge, mayor or justice, on being served with said order, shall, in ten days thereafter, transmit all the original papers in the action to the clerk's office of the court to which the appeal is taken. § 726 [849] Appeals-when stand for trial and how tried. Appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered. (16) The Code does not authorize the filing of pleadings upon an appeal where the amount sued for did not require a petition, but if pleadings are filed they can not increase the demand beyond the jurisdiction of the court in which action was commenced. Burbage v. Squires, 3 Met. 78. See notes to sec. 726. (17) After jury is sworn it is too late to object that the papers have not been returned by the justice. Grimes v. Dearborn, 3 J. J. M. 60. (18) From a joint judgment against several defendants either can appeal, and thereby all the defendants are necessarily brought into the court appealed to as parties. Palmer v. Kennedy, 7 J. J. M. 498; Clagget v. Blanchard, 8 Dana 41. § 726. (1) Amendment on appeal - garnishee. A filed an affidavit against B in a justice's court, and garnisheed fifty-nine dollars in the hands of C. No petition was filed. The attachment was discharged, and C directed by the justice to pay the money attached to B, which he did. A prayed an appeal at the time the attachment was discharged, and the same day filed his appeal in the circuit court. On the trial in the circuit court A was permitted to file an amended petition, setting up properly his claim. The attachment was sustained, and the garnishee required to pay the money attached to A. This judgment was affirmed. Whether, when money is at tached, the garnishee must hold it until the time to appeal expires, not decided. Puff v. Hutcher, 78 Ky. 146. (2) Power of circuit court on appeal. The only power the circuit court has on appeal is to render judgment for whatever may be found due on the trial; or, if nothing is found due, to dismiss the action; or, if the appeal is not regularly prosecuted, or the court has no jurisdiction, to dismiss the appeal, and until some of these things are done the case remains in court. The court has no power to reverse the judgment of the justice. Bennett v. Thompson, 10 Bush 365; and sees notes 5-18, sec. 724. (3) When an appeal is taken to the circuit court from the judgment of a justice's court that had no jurisdiction of the subject matter, no recovery can be had in the circuit court against the defendant, and in such case the circuit court should make such orders as will render the proceedings in the justice's court inoperative. Wigginton v. Moss, 2 Met. 38. (4) If, on an appeal from the judg ment of a justice, it appears that the justice had no jurisdiction of the cause. the court should dismiss the action. Fleming v. Limebaugh, 2 Met. 265. (5) Same case to be tried on appealamendment. Upon the trial of an appeal the cause of action must be the same as that expressed in the warrant, and it must be a cause of action over which the justice had jurisdiction. It must be the same identical case which was tried by the justice, and not a new case. Upon the trial of the appeal no new cause of action can be relied upon. The same action may be tried anew, but no new action is to be tried. Burbage v. Squires, 3 Met. 78. § 727 850 Costs upon appeal. Unless the judgment on the appeal be more favorable to the appellant than the original judgment, he shall pay the costs of the appeal. If he merely succeed in reducing the amount of a judgment rendered against him, it shall be at the discretion of the court to allow him costs or not. § 728 851 Costs in inferior court. The costs in the inferior court shall be adjudged in favor of the plaintiff, if he succeed in obtaining, on the appeal, a judgment for any amount; otherwise, in favor of the defendant. § 729 852 Time in which appeal must be taken. No appeal shall be taken pursuant to this article, except within sixty days from the rendering of the judgment. (How days between acts counted, sec. 681.) § 730 853 Rights of appellee if appellant fail to prosecute. If the appellant move to dismiss or fail to prosecute his appeal, it shall be at the option of the appellee either to proceed to trial on the appeal, or to have judgment rendered for the amount of the original judgment and costs, if it was in his favor, or in bar of the original judgment, if it was against him. § 731 (854) Transcript to be furnished party appealing. If a party wish to take an appeal, the mayor, judge or justice before whom the case was tried shall deliver to him, upon application, a copy of the judgment and amount of costs certified by him. (6) A plaintiff can not, upon an appeal, amend his pleadings so as to set up a new and independent cause of action. The case, i. e., the cause of action, to be tried on the appeal must be the same that was tried in the lower court; but to that case the defendant has the right to make all the defenses he has. If he fails to set up any defense, and allows judgment to go by default, it is within the discretion of the court in which the appeal is pending for a trial de noro to allow an answer to be filed. So, too, that court may in the same way allow the defense to be changed, or new defenses to be made, as if the case had been originally brought in that court." Willis v. McNeal, 8 R. 411. (7) Tender of amount before appeal taken-effect. Ky. Stat., sec. 890. § 727. (1) Costs-how adjudged on appeal. When the appellant succeeds in reducing the amount of the judgment against him. the court may adjudge to or withhold from him his own costs, but can not give judgment against him for the costs of the appellee. Gentry v. Doolin, 1 Bush 1; and see L., St. L. & T. R. R. v. Barrett. 91 Ky. 487. (2) Judgment against appellant for costs on dismissal of his appeal for want of jurisdiction is erroneous. Williams v. Wilson, 5 Dana 596. (3) On appeal to the circuit court the plaintiff had no cause of action and was properly adjudged to pay the costs in both courts. Willis v. McNeal, L. R. 411. $729. Time-how computed. See notes to sec. 681. TITLE XVII. RULES OF CONSTRUCTION OF THIS CODE. § 732. Rules that prevail. 733. Code not to be strictly construed. § 732 855 to 873] Rules that prevail in construing Code. In construing the provisions of this Code, these rules shall prevail, unless a different intention be expressed, or be shown by the context: 1. Title-chapter-article-section. The words "title," "chapter," "article," "section," and the figure §, refer to provisions of this Code. 2. Tense. Each tense includes every tense. 3. Gender. Each gender includes every gender. 4. Plural—singular. The singular includes the plural, and the plural the singular, number. 5. Person. The word "person" includes a corporation. 6. Writing. The word "writing" includes printing and printed paper. 7. Signature—subscription. The words "signature," "subscription and words of like import, include a mark by, or for, a person who can not write, if his name be subscribed to an instrument and witnessed by a person who, near thereto, writes his own name as a witness. 8. Action for money, includes what. An action for money includes an action for the recovery of damages as well as of money due by contract. 9. Real property. The words "real property" mean lands, tenements and hereditaments. 10. Personal property. The words "personal property" mean money, goods, chattels, things in action and evidences of debt. 11. Property. The word "property" includes any vested interest, legal or equitable, in real or personal property. § 732. (1) "Chief officer" of railroad corporation is, first, its president; second, its vice-president. Harper v. N. N. & M. V. R. R., 90 Ky. 359. (2) Construction of statutes. See Ky Stat., sec. 446. (3) "Process" includes execution. Gowdy v. Sanders, 88 Ky. 346; Johnson v. Elkins, 90 Ky. 163. (4) "Signature." Subsection seven only applies to writings that may be, or are, required under the Code. Meazels v. Martin, 93 Ky. 50; Maupin v. Berkley, 3 R. 617; and see Vanover v. Murphy, 12 R. 733. 12. Court judge-justice-clerk. The word "court" refers to the court in which an action or proceeding is pending, or may be brought; and the words "judge," "justice," "clerk," refer to officers of such court. 13. Justices' courts quarterly courts. The words "justices' courts" or "quarterly courts" embrace courts having similar jurisdiction, in whole or in part, to that of justices' courts or quarterly courts; and the words "justice" or "presiding judge," and words of like import, embrace judges of either of said courts. 14. Circuit court-circuit judge. Excepting criminal courts and judges thereof, the words "circuit court" embrace courts having similar jurisdiction, in whole or in part, to that of circuit courts; and the words "circuit judge" embrace judges of either of said courts. 15. Sheriff. The word "sheriff" means the sheriff of the county in which the action or proceeding referred to is pending, or the sheriff of another county to which process is directed; and it means, also, any officer or person who is or may be authorized by law to act as, or in place of, a sheriff. 16. Coroner justice jailer constable. The words "coroner, "justice," "jailer," "constable, mean officers of the county in which the action or proceeding referred to is pending, or may be brought, or to which the process referred to is directed. 17. Personal representative. The words "personal representative' mean the executor or administrator or other person appointed to take charge of the estate of a deceased person. 18. Real representative. The words "real representative" mean the heir or devisee of real property of a deceased person. 19. Representative. The word "representative" includes personal and real representatives. 20. Successor. The word "successor" means a person who takes the place of another as personal representative, curator, guardian, receiver, trustee or committee. 21. Other country-foreign corporation. The words "other country," "foreign corporation," and words of like import, refer to any part of the world out of this State. 22. United States. The words "United States" embrace the States and Territories thereof and the District of Columbia. 23. Oath. The word "oath" includes affirmation, in any case in which it may be substituted for an oath, and in like cases the word "sworn" includes affirmed. 24. Verification-verified. The word "verification" includes oath and affirmation, and the word "verified" includes sworn and affirmed. 25. Month-year. The word "month" The word "month" means calendar month, and the word "year" means calendar year. 26. Process. The word "process means a writ or summons issued in the course of judicial proceedings. (See note, page 358.) 27. Writ. The word "writ' means an order or precept in writing, issued by a court, clerk or judicial officer. 28. Joint tenants. The words "joint tenants," and words of like import, embrace tenants in common and in coparcenary. 29. Joint property. The words "joint property," and words of like import, embrace property held jointly or in partnership or in coparcenary or in common. 30. Joint debtors. The words "joint debtors," and words of like import, embrace all persons who may be sued in one action upon the plaintiff's demand. 31. Disability. The word "disability" means coverture, infancy, unsoundness of mind or imprisonment in a penitentiary of this State or of any other country. "reside," mean, 32. Residence-reside. The words "residence," "reside," with reference to a corporation, its chief office or place of business. 33. Chief officer or agent of corporation. The chief officer or agent of a corporation which has any of the officers or agents herein mentioned is: First, its president; second, its vice-president; third, its secretary or librarian; fourth, its cashier or treasurer; fifth, its clerk; sixth, its managing agent. 34. Action. The word "action" embraces a demand for a set-off or counter-claim; and also embraces special proceedings, so far as the provisions of this Code concerning actions are properly applicable to such proceedings. 35. Party. The word "party" means a plaintiff or defendant in an action, and embraces any person who has a right and seeks to become a party to an action. 36. Plaintiff-defendant-petition. The word "plaintiff" embraces a defendant who demands a set-off or counter-claim; the word "defendant" embraces a plaintiff against whom such demand is made; and the word "petition" embraces an answer or reply in which such demand is made, and also embraces cross-petitions. 37. Sue. The word "sue" refers to an action or special proceeding. |