Joseph v. Bailey

277 S.W. 466, 211 Ky. 394, 1925 Ky. LEXIS 886

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 24, 1925
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson

.Affirming.

On February 22, 1921, 'Will Sparks conveyed to "Wiley Joseph a tract of land in Leslie county, reserving the mineral. On February 3, 1922, Wiley Joseph brought this suit against John M. Bailey and Will Sparks, alleging that he was the owner and in possession of the land and that the defendants were setting up some claim to it. He prayed that his title be quieted. On June 12, 1922, judgment by default was entered against the defendants quieting plaintiff’s title to the tract of land. On May 20, 1924, Will Sparks, who lived in Perry county, filed a motion to vacate the judgment, showing that he had not been summoned in the action, did not enter his appearance thereto, did not learn of the judgment until about April 1, 1924, and had a good defense to the action; that the officer’s return on the summons was procured to be made by Wiley Joseph by fraud or was made by mistake of the officer; that Bailey, who lived in Leslie county, had no interest in the land, and the allegation against him was only a pretense. Pie also filed the affidavit of the officer whose name was signed to the return, showing that he had not executed the summons'on Sparks. On this showing, and there being no evidence that the process was ever sent to the sheriff of Perry county who made the return or was executed by him, the court sustained the motion and set aside the judgment. Joseph appeals.

In Asher v. Cornett, 126 Ky. 569, which was a case like this, where a default judgment had been set aside at a subsequent term on motion as void for want of service of process, the court thus stated the rule :

“A judgment vacating a former judgment, or refusing to vacate a former judgment and to grant a new trial, is final, and may be appealed from.”

An order setting aside a final judgment at a subsequent term, like an order setting aside a deed, -divests-important rights and is therefore appealable, for it finally divests the party of all his rights under the deed or judgment.

It is insisted that the judgment is not warranted by the evidence. The proof in this case is practically the-same as in Bramlett v. McVey, 91 Ky. 151. Some weight must be given to the finding of the circuit court. The opening of the judgment only gives the defendant a right to be heard and on final hearing the court may enter such judgment as the equity of the case warrants. There being no evidence contradicting the affidavit of the officer and in fact no evidence that the process was ever in the hands of the sheriff of Perry county the judgment can not be disturbed on the facts.

The motion to set aside the judgment as void because-rendered without service of process on the defendant was-a direct proceeding to open the judgment and not a collateral attack. Gardner v. Howard, 197 Ky. 615.

Judgment affirmed.