Dalton v. Dalton , 146 Ky. 18 ( 1911 )

OPINION of the Court by

Judge Lassing

Affirming.

This is an apeal from a judgment of the Fayette Circuit Court, refusing to reduce the amount allowed as alimony to the appellee, Annie L. Dalton. It appears from the record that, prior to 1905, the appellee was divorced absolutely from her husband, R. F. Dalton, the appellant, and he was directed to pay her $65.00 a month for the support of herself and eight children until further order of court. For some years appellant complied with this order of court, but finally, conceiving that it was burdensome to him, and that the changed condition of his family justified its reduction, he made application, upon notice, to have the amount reduced. After hearing this motion the judge refused to make the reduction asked, and dismissed the application. From that ruling and judgment this appeal is prosecuted.

For appellee it is insisted that the appeal should be dismissed upon two grounds, first, because1 no schedule was filed in the lower court, as provided by section 737 of the Civil Code, and second, because no bill of exceptions was filed, as provided by section; 334 of the Code.

As to the first ground relied upon to support the motion to dismiss the appeal, it is sufficient to note that in Cassella v. Seaman & Hughes, 13, Bush, 244, Louisville & Nashville R. R. Co. v. Brice, 83 Ky. 210, and Nelson county v. Bardstown & Louisville Turnpike Co., 24 Rep. 2056, it was held that where an appeal is prosecuted from a judgment of the lower court to this court it must be accompanied by a transcript of tbe entire record, nnless tbe appellant wishes to. rely npon only a partial record, in wbicb event a schedule must be filed within the time prescribed, and this must show specifically the portions of the record desired transcribed. In the case at bar no schedule at all was filed, and it is apparent that the record before us is but a partial record of the proceedings in that case.

Upon the second ground relied upon, it appears from the affidavit of the clerk that upon the trial of this motion oral testimony was heard, in addition to the affidavits which have been copied in the record. But there is no transcript of this oral evidence in the record. No bill of evidence was prepared, and we cannot pass upon the merits of this controversy upon the partial record before us, and must presume that the evidence before the trial judge justified the conclusion reached by him.

This Code provision, requiring the unsuccessful party to enter his objection to the ruling of the court at the time it is made, and ask for and receive time within which to prepare and tender a bill' of evidence and exceptions, either at that term or at any time given by the court, not to exceed a day in the succeeding term, to be fixed by the court, is mandatory; and ' when appellant failed to comply with this provision of the Code he lost his right to have the rulings of the trial judge upon his motion reviewed, here. This identical question-was decided in Layton v. Weed Sewing Machine Co., 4 Rep. 263; Louisville & Atlantic Coal Co. v. Morris, 132 Ky. 223; Dixon v. Wood, 23 Rep. 1004, and Southern Railway Co. v. Thurman, 25 Rep. 804.

Judgment affirmed.