Dean v. Gregory

• Decision Date: 14 March 1958
• Citation: 318 S.W.2d 549
• Parties: Isom J. DEAN, Appellant, v. Daisy Mae GREGORY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 549

318 S.W.2d 549

Isom J. DEAN, Appellant, v. Daisy Mae GREGORY et al., Appellees.

Court of Appeals of Kentucky.

March 14, 1958.

As Modified on Denial of Rehearing Dec. 12, 1958.

Odgen, Galphin & Abell, Malcolm Y. Marshall, Louisville, John M. Lyttle, Manchester, for appellant.

Roy W. House, Manchester, for appellees.

CLAY, Commissioner.

This is an appeal from a judgment which (1) set aside a former judgment expunging from the records of the Clay County Court a marriage certificate, and (2) adjudged that Isom Dean and Daisy Mae Gregory are lawfully married. Isom, the appellant, contends the trial court erroneously set aside the former judgment because Daisy Mae did not institute the present proceeding within the time prescribed by the Rules of Civil Procedure or the Civil Code of Practice.

The parties have had an interesting history together and apart. In 1938 they began living together in Clay County, Kentucky, and cohabited as man and wife for at least nine years. Four children were born to this couple.

In 1942 they moved to Baltimore, Maryland, where they both now live. They subsequently separated, either in 1947 (according to Isom) or 1951 (according to Daisy Mae). Since 1947 Daisy Mae has had five more children, the last being born in December, 1953. In May of 1952 Isom married another person, and two children were born of that marriage.

In 1949 Daisy Mae returned to Kentucky to record in the Clay County Court a certificate of marriage purporting to show that she and Isom were married October 3, 1938. In 1950 Isom returned to Kentucky and filed suit in the Clay Circuit Court to have the recorded certificate stricken from the records on the ground that it was false and fraudulent. Constructive service was had on Daisy Mae, and on April 18, 1951, by judgment in that suit, the marriage certificate was cancelled and expunged from the county court records. It is this judgment which the Chancellor set aside in the present proceeding.

The present proceeding was commenced April 30, 1955. It is Isom's contention that this was too late regardless of what Civil Code of Practice or Civil Rule provision is applicable, and that the equities of the situation are such that Daisy Mae should not be permitted to set aside this former judgment under any circumstances.

The significant fact which Isom contends is controlling is that Daisy Mae had full knowledge of the proceedings and the judgment in the Clay Circuit Court at least as early as May 1951. This is shown by a verified complaint filed by her in a proceeding brought against him in Baltimore on May 11, 1951. Therein she alleged the facts relating to Isom's suit in the Clay Circuit Court. Subsequently in the Baltimore suit and other actions filed by her in that city, the entire record of the proceedings in the Clay Circuit Court, including the judgment, was filed in the Baltimore courts. Not later than November 9, 1953, it is positively established, Daisy Mae had full knowledge of these entire proceedings and the judgment.

Her motion to set aside this judgment was not made until April 1955.

Under section 414 of the Civil Code of Practice, upon which the Chancellor based his decision, a party constructively summoned had five years within which to initiate proceedings to set aside a judgment. Isom contends that this Code section does not apply because it was superseded by CR 4.10, which reduced the period to one year. It is argued that CR 4.10 is controlling because the original proceeding was not 'pending' on July 1, 1953 when the new Civil Rules took effect, and even if it was then pending, the new Rules apply because there was no showing and no order to the effect that the application of the new Rules would not be feasible or would work injustice. CR 86.

CR 86 provides as follows:

'These rules shall take effect on July 1, 1953. They govern all proceedings and actions brought after they take effect, and also further proceedings and actions then pending, except to the extent that in the opinion of the proper court, expressed by its order, their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event the procedure existing at the time the action was brought applies.'

Under this provision the new Rules apply to the present proceeding unless there is some good reason why they should not apply. Isom contends that they automatically apply because the former proceeding, which had ended in a final judgment, was no longer 'pending' when the new Rules took effect July 1, 1953. Since that judgment was subject to direct attack within the five year period prescribed by section 414 of the Civil Code of Practice, it could be said that the original action was still, in a sense, pending. We do not decide this question, but will assume the Civil Code of Practice, under proper circumstances, could have been made applicable to the present proceeding.

No such order was entered by the trial court, and we do not think such an order would have been justified. The Civil Code of Practice could be made to apply only if the application of the new Rules would (1) not be feasible, or (2) would work injustice. Clearly the application of the new Rules would be feasible, and our only question is whether or not they would work injustice.

Daisy Mae contends that to apply the new Rules would be to give them a retroactive effect, which is not favored. The general rule is that statutes will not be given a retroactive effect if (1) they...