Thompson v. Porter

• Decision Date: 18 April 1919
• Citation: 183 Ky. 848,210 S.W. 948
• Parties: THOMPSON v. PORTER ET AL.
• Court: Kentucky Court of Appeals

210 S.W. 948

183 Ky. 848

THOMPSON v. PORTER ET AL.

Court of Appeals of Kentucky.

April 18, 1919

Appeal from Circuit Court, Fayette County.

Suit by L. E. Thompson against Harvey Porter and another. Judgment was rendered against defendants by default, and, from judgment vacating it, plaintiff appeals. Reversed, and cause remanded for proceedings not inconsistent with the opinion.

J. A Edge, of Lexington, for appellant.

Jas. A Wilmore and J. Keen Daingerfield, all of Lexington, for appellees.

HURT J.

On January 15, 1916, the appellant, L. E. Thompson, instituted a suit in the circuit court for the county of Fayette, which is a court of continuous sessions, against the appellees, Harvey and Diana Porter, to recover the possession from them of a certain house and lot in the city of Lexington which she alleged that the appellees were wrongfully withholding from her. It was averred in the petition by appellant that she was the owner by a fee-simple title of the lands, and entitled to their immediate possession. The appellees were duly served with a summons to appear and defend the action, but failed to do so, and on the 23d day of February, 1916, a judgment was rendered in the action by default and by which it was adjudged that the appellant was the owner of the lands, with a fee-simple title, and entitled to recover their possession from appellees, and adjudged that she recover their possession and her costs, and that a writ of possession for the lands issue upon the judgment in behalf of appellant. No step nor proceeding of any kind touching the judgment was undertaken by the appellees at any time, until the 6th day of July, 1916, when they moved the court to vacate the judgment upon the ground that it was void. The motion was sustained on the 4th day of November, 1916, at which time the court adjudged that the judgment of February 23, 1916, for the recovery of the land, be vacated, and from this judgment the appellant has appealed.

The Fayette circuit court being one of continuous sessions the time within which it has control over its judgments, in actions at law, such as judgments in actions of ejectment, is governed by the provisions of sections 988, and 998, Ky. Stats., the first of which provides as follows:

"The court shall have control over its judgments for sixty days, as circuit courts have over their judgments during the term in which they are rendered."

The latter section provides as follows:

"Proceedings to vacate or modify a final order for grounds for which, in courts having terms, it might be vacated after the term at which it was rendered, may be had in reference to any order or judgment of the court, after expiration of sixty days from its rendition. A motion to vacate a judgment, because of its rendition before the action could regularly be placed upon the trial docket, shall only be entered within three months after its rendition."

Hence, it would seem that courts of continuous sessions have only such control over their judgments, in actions at law, for 60 days after their rendition, as circuit courts having terms have over their judgments during the term at which their judgments are rendered, and, after the expiration of 60 days from the rendition of a judgment in a court of continuous sessions, the judgment may be vacated or modified only in the same way and upon the same grounds as one upon which a judgment in a court having terms may be vacated or modified after the term at which it was rendered. Sixty days following the rendition of a judgment in a court of continuous sessions is, with reference to the power of the court over the judgment, considered as a term of such court.

In Henry Voght Machine Co. v. Pennsylvania Iron Works Co., 66 S.W. 734, 23 Ky. Law Rep. 2163, touching the construction to be placed upon the provisions of section 988, supra, and its application when 60 days had elapsed after the rendition of a judgment in a court of continuous sessions, this court said:

"The court had therefore lost control over the judgment and was without power to modify it or set it aside, except as provided under sections 518 and 520 of the Civil Code of Practice, regulating proceedings for this purpose after the term at which a judgment is rendered."

This construction has been adhered to in many cases. Trapp v Aldrich, 67 S.W. 834, 23 Ky. Law Rep. 2430; Williams v. Williams, 107 Ky. 496, 54 S.W. 716, 21 Ky. Law Rep. 1208; Roemele v. Schmidt, 138 Ky. 336, 128 S.W. 65; Accident Co., etc., v. Reigart, 92 Ky. 142, 17 S.W. 280, 13 Ky. Law Rep. 442; Louisville v. Muldoon, 43 S.W. 867, 19 Ky. Law Rep. 1386; Johnson v. Stivers, 95 Ky. 128, 23 S.W. 957, 15 Ky. Law Rep. 477; Tritsch v. Covington, 161 Ky. 171, 170 S.W. 518, Ann. Cas. 1916B, 722; Petty v. Wilbur Stock Food Co., 128 Ky. 130, 107 S.W. 699, 32 Ky. Law Rep. 956. The rule of the common law, and which has been adhered to in this state, when applied to judgments of the circuit courts, is that a final judgment cannot be vacated or modified, by the court which rendered it, after the term at which it was rendered, except upon such grounds and in the manner prescribed by the Civil Code. McManama v. Garnett, 3 Metc. 517; Davis v. Jenkins, 93 Ky. 353, 20 S.W. 283, 14 Ky. Law Rep. 342, 40 Am. St. Rep. 197; 15 R. C. L. 691...