Staton v. Staton

• Decision Date: 14 May 1915
• Citation: 176 S.W. 21,164 Ky. 688
• Parties: STATON v. STATON.
• Court: Kentucky Court of Appeals

176 S.W. 21

164 Ky. 688

STATON v. STATON.

Court of Appeals of Kentucky.

May 14, 1915

Appeal from Circuit Court, Pike County.

Action by J. M. Staton against Effie Staton to vacate a judgment allowing alimony and counsel fees. Judgment for the plaintiff, and defendant appeals. Reversed, with directions to dismiss the petition.

J. S Cline, of Pikeville, for appellant.

Staton & Pinson, of Pikeville, for appellee.

TURNER J.

This is an action to vacate a judgment for alimony under the provisions of section 518 of the Civil Code.

The allegations of the petition, as amended, are that prior to the May term, 1913, of the Pike circuit court there was pending therein an action for divorce and alimony by Effie Staton, plaintiff, against J. M. Staton, defendant; that the defendant in that action was represented by the law firm of Staton & Pinson; that at the time there was pending in the Pike circuit court a contested election case involving the title to the circuit judgeship of that district wherein J. M Roberson was contestant and J. F. Butler was contestee Butler at the time being the judge of the court, having been awarded the certificate of election; that on the 26th day of the May term of that court the court on its own motion entered a general order continuing all cases in which the attorneys for the contestant in the contested election case (including Staton & Pinson) were interested, together with all motions and cases of every kind, for the purpose, as recited in the order, of giving said attorneys an opportunity to prepare the said election case for trial; that thereafter and on the forty-fifth day of the term, during the enforced absence of Willis Staton, of the firm of Staton & Pinson, one of the attorneys for the defendant in the divorce suit, a judgment was entered granting a divorce to Effie Staton making her an allowance of $450 for alimony, giving her the use of one-half of a tract of land belonging to J. M. Staton, allowing her attorney a fee of $100 to be taxed in the costs, and adjudging all of the costs against J. M. Staton. The judgment in the divorce action was set out in full in the petition, and, among other things, it provides that the alimony allowance was "to be paid in installments of $25, to continue for 4 1/2 years, subject to the orders of the court; the court reserving the right to modify this order when it should become necessary." It is further alleged that certain executions issued by the clerk for unpaid pendente lite allowances, and for parts of the alimony allowance, and for costs, were issued for too large amounts, and for such sums as were not authorized by the judgment, and prayed that so much of the judgment as allowed the $450 for alimony and the fee to the plaintiff's attorneys be canceled.

The lower court entered a judgment vacating the former judgment to the extent prayed for, quashing the executions and enjoining the collection of any part of the judgment. The defendant demurred to the petition, and her demurrer was overruled, and the correctness of that ruling is...