Fort Jefferson Imp. Co. v. Green, 112 Ky. 85

Fort Jefferson Imp. Co. v. Green

112 Ky. 85 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE DUREKLE

Reversing.

In 1892, T. É.- Green obtained in the Taylor circuit court a judgment by default against the Ft. Jefferson Improvement Company for two thousand and odd dollars, claimed *88ns salary for services as secretary of the corporation. An execution issued upon the judgment was returned “No property found.” In April, 1900, Bessie B. Green, as assignee of Thomas E. Green, filed a petition in equity in the Taylor circuit court, alleging the judgment, execution, and return of “No property,” and seeking to subject to the payment of the judgment in Green’s favor a judgment in favor of the company against Dupoyster, to secure which a lien had been adjudged in favor of the company. The Ft. Jefferson Improvement Company entered its appearance specially for the purpose of objecting to the jurisdiction of the Taylor circuit court, both in rendering the judgment in the ordinary action first brought and in the present proceedings. The corporation, alleged that its chief office was in Louisville, Jefferson county; that it had a branch office in Ballard county, and had no other office dr place of business .in the State; that during the pendency of the original action its president and chief officer resided in Marion county, and after his death the vice president resided in Clark county; that the contract on which the judgment sued on was obtained was made in Jefferson county, and to be performed either in Ballard county or 'Jefferson county, and not in Taylor county; that T. E. Green,_ plaintiff’s husband and assignor, was, during the time” of the pendency of the original suit, clerk of the Taylor circuit court, issued the summons, and kept the record of all the proceedings by which the judgment was obtained; that he was the same T. E. Green on whom service of summons was made; that Green and one S. A. Russell, who had also been a secretary of the corporation, brought suits in the Taylor circuit court, at the same time and for similar causes of action, the proceedings being the same in both suits, except the dates and the amounts of the claims; *89that Green and Russell combined and conspired together to procure the default judgment without notice to the company, that the company was not summoned or notified in either of the actions, except by service of' process shown by return of the officers to have been made upon the plaintiff, Green, as secretary of the company, and on J. P. Gad-die as its managing agent, both being residents of Taylor county, and being the chief and only officers of the company found in Taylor county, but that Gaddie was neither the general or managing agent, nor agent or officer of the company at all, except that he was a director. The prayer of the answer was that the judgment in the original action be declared null and void, that the court refuse to-enforce the same,' and that the present petition be dismissed. A demurrer to the answer was sustained. The company standing upon its pleading, judgment was rendered against it.

It is evident that, assuming, as we must, upon the demurrer, the averments of the answer to be true, the original suit should, under section 72 of the Civil Code of Practice, have been brought either in Jefferson county, the county in which the principal place of business of the corporation was, and in which the contract was made and to-be in part executed, or in Ballard, in which the company also had an office, and in which the contract was to be in part performed, or in Marion, in which its chief officer resided. These facts as to the officers of the company, the-residence of its chief officer, and the places where the contract was made and to be performed do not appear in the-record of the original suit, which is copied in full in the-answer. It is not necessary to decide what effect the existence of these facts would have upon the judgment obtained, and how advantage could be taken of them. The*90averments of the answer are a charge of fraud in obtaining the original judgment. On behalf of appellee it is urged that fraud in obtaining the judgment can not be set up as a defense to an action to enforce the judgment, as it is a species of collateral attack. We have not been cited to nor have we found, any case in this State exactly in point. In Rowan Co. v. Logan, 13 Ky. Law Rep., 635, there had been an order of the court of claims making an allowance to a creditor of the county. Suit was brought for a mandamus to compel a levy of a tax to pay the claim. In the mandamus suit there was interposed a plea of fraud in obtaining the order of allowance. It was held that under Prebles v. Chism, 5 T. B. Mon., 158, while the allowance was not a judgment, it operated with the same binding effect against the county; that the suit for mandamus was an action to enforce the judgment, and that fraud in obtaining the order was an available defense. A somewhat similar case .is presented in Anderson Co. Court v. Stone, 18 B. Mon., 851. In Pomeroy’s Equity Jurisprudence (section 919) it is said: “When a judgment or decree of any court, whether inferior „or superior, has been obtained by fraud, the fraud is regarded as perpetrated! ■upon the court as well as upon the injured party. The judgment is a mere nullity, and it may be attacked and defeated, on account of the fraud, in any collateral proceeding brought upon it or to enforce it; at least in the same court in which it was rendered. When a judgment fraudulently recovered in one court, is sued upon in another court, whether the'fraud can there be set up to defeat its ■enforcement has been questioned. There can be no doubt, however, that under these circumstances, wherever the reformed procedure prevails, the fraud may be set up by way of equitable defense, especially if the affirmative re*91lief of cancellation is sought.’’ This would seem to be conclusive of the proposition that fraud in obtaining a judgment may be set up as a defense in a suit brought in the same court to enforce it.

We think, therefore, that it was error to sustain the demurrer to the answer, and the judgment is reversed,’ Avith directions to set aside the order sustaining the demurrer and enter an order overruling it, and for further' proceedings consistent herewith.