Case 97 — Application fob a Wbit of Mandamus by the Commonwealth of Kentucky against James P. Tabvin, Judge. — Feb. 17.

#### Commonwealth v. Tarvin, Judge.

Application fob IVbit Granted.

Appeal — Time fob Pbayíng — judgment when Final.

Held: 1. A motion for new trial suspends .the judgment until the motion is overruled, and until such time there is no judgment,, within the meaning of Cr. Code, section 348, which provides that the appeal must he prayed during the term at which the judgment is rendered, and shall he granted if the record is lodged in. the clerk’s office of the .court of apipeals within sixty days after' the judgment.

C. J. PRATT, attorney general, and D. A. GÍLENN, fob commonwealth.

GEORGE WASHINGTON and JOE L. EÍHLISON, fob defendant.

(No hriefs.)

Opinion of the coubt by

.CHIEF JUSTICE BURNAM,

granting WRIT.

The Bavarian and other brewing companies were in-, dieted by the grand jury of Kenton county for a violation of section 3915 of the Kentucky Statutes, which is a section of the act of May 20, 1890, prohibiting combinations by corporations, partnerships, individuals, or persons, or associations .of persons, for the purjjose of regulating, controlling, or fixing the price of any merchandise, manufactured article, or property of any kind. Section 3917 prescribed a fine of not less than $500 nor more than $5,000 for the violation of the preceding section. A trial of the defendants under the indictment on the 8th of. October, 1902, resulted in a verdict for the defendants, which was rendered under a peremptory instruction from the court. On the following day the Commonwealth’s attorney for *878that- district filed grounds and entered a motion for new trial. At the sitting of the court on October 29, 1902, the motion was continued by consent. On October 20, 1902, the motion was again continued for two weeks, but the record does not show at whose instance. On 'November 4th the motion was again continued for two weeks. On November 24, 1902, the motion, for a new trial was set for oral argument on December 8, 1902. On December 8, 1902, the defendants moved the court to strike the motion -and grounds for a new trial from the file, and the argument on the motion for a new-.trial was continued until December 15 th. On December 22d both motions were submitted, and on December 28th the trial court overruled the motion of the Commonwealth for a new trial, to which the plaintiff excepted, and asked the court to grant it an appeal to the court of appeals. Defendants objected to this, and the court took time. On December 30th the Commonwealth’s attorney moved the court to dispose of his motion for an appeal, which was first made on, December 8, 1902, and this, motion was finally submitted on January 12, 1903. At a, sitting of the court on January 21, 1903, the motion of the Commonwealth for an appeal to the court of ap-. peals was overruled, and the appeal refused, to which the Commonwealth excepted. On the 28th of January, 1903, the Commonwealth of Kentucky, by C. J. Pratt, attorney general, appeared in this court, and filed a certified transcript of the orders of the court below, and asked that a writ -of mandamus should issue against the Honorable James P. Tarvin, judge, of the Kenton circuit court, requiring him to grant an appeal from the judgment of the Kenton circuit court overruling the motion, to which the Honorable James P. Tarvin, as judge of the Kenton cir*879cuit court, filed a response, in which he says, in substance, that he had reached the conclusion that the Common wealth was not entitled to file a motion for a new trial in. the case, and that he, as judge of the Kenton circuit court, had no jurisdiction to pass on same, and. that more than sixty days having elapsed since the rendition of the judgment on October 8, 1902, before the Commonwealth moved for an appeal, its motion oame too late, and was consequently overruled.

By section 347 of the Criminal Code, the court of appeals is given appellate jurisdiction of penal actions and prosecutions for misdemeanors, if the judgment be for the defendant, in cases in which a fine exceeding $50' might have been inflicted. Section 348 provides: “The appeal must be prayed during the term at which the judgment is rendered, and shall be granted upon the condition that the record be lodged in the clerk’s office of the court of appeals within sixty days after the judgment.” Section 350. When the Commonwealth attorney prays an appeal, the clerk shall forthwith make and certify a complete transcript of the record and transmit the same to the attorney general, or deliver it to the Commonwealth’s attorney for that purpose. And. if the attorney general on inspecting the same believe .it proper to take the appeal, he shall do so by filing the transcript in. the..clerk’s office of the court of appeals in sixty days after judgment.” There has been no change in these provisions of the Code since it took effect, on the 1st of July, 1854. In Commonwealth v. Adams, 55 Ky., 338, which was decided in 1855, this court construed these sections of the Code, and held, first, that appeals from judgment of circuit courts in misdemeanor cases must be taken at the term at which the judgment was rendered, .and the, rec*880ord filed in the clerk’s office of the court of appeals within sixty days after judgment. In Commonwealth v. McCready, 59 Ky., 377, the ruling in the Adams Case, was adhered to. But it appears that in that case, after judgment was rendered and the motion for a new trial had been overruled, time was given, by consent of parties, until the first day of the next term to file a bill of exceptions. And it was held to be still incumbent upon the appellee to file the record within sixty days after the judgment. In the case of The Louisville Chemical Works v. Commonwealth, 71 Ky., 179, it was held that a motion for a new trial suspended the judgment, and that no appeal could be prosecuted until after the motion for a new trial had been disposed of. The court, through Judge Pryor, said: “No appeal can be taken by either party (plaintiff or defendant) to this court from the judgment of an inferior court, in a case like this, without first making a motion for a new trial in the court where the error complained of occurred. Upon the hearing of the motion, if overruled, the party complaining files his bill of evidence, and is then in a condition to bring his case to this court, and not before. If either party should bring the case here upon the judgment alone, with the motion for a new trial pending in the lower court, or without having made such motion, the dismissal of the appeal would be the inevitable result. If appellants had appealed from the judgment in this case at the time it was entered, viz., at the November term, and filed their record in this court, with the motion for a new trial pending in the lower court, and continued over until December term, we are at a loss to perceive how this court could take jurisdiction and try the appeal. There is no judgment, in fact, upon the ferdict of a jury, until the motion for a *881new trial, if made in proper time, is disposed of. This motion suspends the judgment, and it has no more effect than the verdict of the jury until the application for a new trial is overruled. Any other construction of the law would deprive the parties of the right to an appeal in all cases where the court, for prudential reasons, or otherwise, saw proper to continue the motion from one term to another, — a right that the court can exercise-, and over which neither the counsel nor his client has any control.” It seems to follow from these provisions of the Code, and from the construction given them in the case quoted, that a motion for new trial was necessary, to enable this court to correct errors growing out of the evidence or instructions given to the jury in the court below. This court has uniformly held that a motion for a new trial suspends the judgment in a civil case, and may be continued and passed on at a subsequent term. See Louisville Rock Lime Co. v. Kerr, 78 Ky., 12; Harper v. Harper, 10 Bush, 447; Turner v. Johnson (18 R., 202) 35 S. W., 923; and Trapp, etc., v. Aldrich (23 R., 2430), 67 S. W., 834.

We are therefore of the opinion that the motion for a new trial had the effect to suspend the judgment until it was finally overruled, or, in "Other words, that the judgment only became final when the motion for a new trial was finally overruled, and that, under section 348 of the Criminal Code, it was the duty of the defendant to have granted the appeal prayed; and he is directed to conform his rulings in this matter to the views herein expressed, and order will go as prayed.