Viall v. Coulton , 288 Ky. 690 ( 1941 )

Dismissing appeal.

The sole complaint on this appeal is that the trial court erred in overruling appellant's motion for a new trial, in support of which affidavits were filed showing both the defendant and his attorney were ill and unable to be in court on the day of the trial. No bill of exceptions has been filed in this court, and it appears from the record before us that no order was entered filing a bill of exceptions in the lower court. Under ordinary circumstances where no bill of exceptions is filed, the judgment will be affirmed, if supported by the pleadings. But the circumstances in this case are very peculiar in that while the trial judge may have orally overruled the motion for a new trial, no order to that effect was entered of record.

When a motion for a new trial is made, the judgment automatically becomes suspended, Wermeling v. Wermeling, 224 ky. 107, 5 S.W.2d 893, and cases therein cited, and does not become final until an order has been entered sustaining or overruling the motion. This court has jurisdiction only of appeals from final orders, Blanton v. National Seed Co.,204 Ky. 407, 264 S.W. 1054, and where the judgment has not become final, an appeal therefrom will be dismissed, even though the appellee fails to move therefor. Farmers' Bank Trust Co. v. Stanley, 190 Ky. 762, 228 S.W. 691.

For the reasons indicated the appeal is dismissed.