Kimbrough v. McCranie

325 So. 2d 70

Opinion

325 So.2d 70 (1976)

Morrison KIMBROUGH and Pace Finance Company, Inc., a Florida Corporation, Appellants,
v.
Ronnie McCRANIE, Appellee.

No. Z-207.

District Court of Appeal of Florida, First District.

January 16, 1976.

Allen W. Lindsay, Beall, Lindsay & Lindsay, P.A., Milton, for appellants.

Bill E. Parker and T. Sol Johnson, Milton, for appellee.

SMITH, Judge.

The trial court dismissed this independent action to set aside, as having been obtained by fraud on the court, a money judgment entered for appellee McCranie against appellants Kimbrough and Pace. Dismissing the action, the trial court ruled that the petition was untimely filed because more than a year had elapsed since the judgment was entered. Rule 1.540(b)(3), R.C.P. While the petition thus dismissed was filed as an independent action and not in the cause which resulted in the judgment attacked, the alleged fraud described in the petition is not that McCranie made misrepresentations misleading the court as to its jurisdiction or preventing Kimbrough and Pace from effectively presenting a defense, but rather that McCranie falsely stated the amount of the damages he had sustained. Allegations of that character are appropriate when a judgment is sought to be vacated within one year on grounds of fraud but not when the attack is delayed longer than a year and must therefore rest on a showing of "fraud on the court." Alexander v. First Nat'l Bank of Titusville, 275 So.2d 272 (Fla.App. 4th, 1973). Contrast Corrigan v. Corrigan, 184 So.2d 664 (Fla.App. 4th, 1966).

Affirmed.

BOYER, C.J., and MILLS, J., concur.