Opinion
June 15, 1956. Rehearing Denied November 16, 1956.
Appeal from the Floyd Circuit Court, Edw. P. Hill County.
Claude P. Stephens, Prestonsburg, for appellant.
Woodrow Burchett, C.B. Latta, Prestonsburg, for appellee.
This is a motion for an appeal from a $2,000 judgment of the Floyd Circuit Court.
Notice of appeal was not filed within 30 days of the entry of the order overruling motion for a new trial as required by subsections (1) and (3) of Section 73.02 of the Civil Rules. The trial court sustained the motion for additional time to file notice of appeal because of excusable neglect, the one exception to the otherwise mandatory time limit. CR 73.02, subsection (1). We believe this was error.
The first of two grounds upon which the motion (for additional time) was based, that appellant was not apprised of the entry of the order overruling his motion for a new trial, is without merit because a copy of the order was mailed to appellant by appellee's counsel, as permitted by CR 5 and CR 77.04.
We are not prepared to say that the fact that appellant's counsel was engaged in other litigation that consumed all his time, the second ground urged for an extension of time, is excusable neglect within the purview of CR 73.02, subsection (1).
We have said that the requirement of the rule of Civil Procedure in regard to the time of filing notice of appeal is jurisdictional and mandatory. See Electric Plant Board of City of Hopkinsville v. Stephens, Ky., 273 S.W.2d 817. Hence, the motion for appeal is denied and the judgment is affirmed.