| Easterly v. Garland |
|---|
| 271 S.W.2d 900 |
| Oct. 8, 1954. |
Proceeding by plaintiff to obtain a permit for a place of entertainment. The Circuit Court, Knox County, William L. Rose, J., refused the permit, and plaintiff appealed. Defendant moved to dismiss appeal. The Court of Appeals, Cullen, C., held that in absence of a constitutional question, judgment which denied plaintiff a permit for a place of entertainment and which was based upon theory that earlier judgment, denying a permit to plaintiff's prospective lessees, was res adjudicata, was unappealable. Appeal dismissed. CULLEN, Commissioner. Roy Easterly has attempted to prosecute an appeal from a judgment of the Knox Circuit Court, which refused to grant him a permit for a 'place of entertainment'. We are faced at the outset with a motion to dismiss the appeal. The judgment of the circuit court granting or refusing a permit for a place of entertainment shall be 'final'. In the context in which this subsection appears, it is clear that it means there shall be no appeal from the judgment. Easterly maintains that he is entitled to an appeal, which provides that the Court of Appeals may grant an appeal, even though less than $200 is involved, if the correct decision of a case cannot be had without construing a statute or section of the constitution put in issue in the case. Easterly contends that the case involves the construction of KRS 231.030, which prescribes qualifications for a permit. Easterly's argument fails for two reasons. First, because it is well settled that the mere fact that the construction of a statute is involved does not confer a right of appeal. Second, the judgment in this case was not based upon a construction of KRS 231.030, but upon a holding that an earlier judgment, denying a permit to prospective lessees of Easterly, was res adjudicata of Easterly's application for a permit. No question of constitutionality of the statute is raised. The appeal is dismissed. Ky.,1954 EASTERLY v. GARLAND 271 S.W.2d 900 |
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