240 S.W.2d 598 | Ky. Ct. App. | 1951
This is an appeal from a judgment rendered in favor of Polly Mae Kirk against Mary Parsley Kirk, individually and as ad-ministratrix of the estate of Lat Kirk,, who died on June 19, 1945, as the result of an accident. Polly Mae Kirk brought this action in the Martin Circuit Court to-set aside the judgment of divorce granted ■by that court to Lat Kirk on June 1, 1943,. in an action against her. In her motion to-set aside the judgment she states that Lat. Kirk was not a resident of Martin County,. Kentucky, at the time he procured the divorce from her, but that he was a resident of West Virginia at that time; that she had received no notice of the action filed by him in the Martin Circuit Court. After the procurement of the divorce Lat Kirk married Mary Parsley Kirk with whom, he was living at the time of his death. The-determination of this action will have its effect upon the disposition of Workmen’s Compensation payments by the State of West Virginia to Lat Kirk’s dependents.
After a hearing of the testimony offered-by the parties, the Martin Circuit Court.
Under Section 518(4) of the Civil Code of Practice “The court in which a judgment has been rendered shall have power, after the expiration of the term, to vacate or modify it * * * For fraud practiced by the successful party in obtaining the judgment.” The present action was brought in the Martin Circuit Court where the original judgment granting Lat Kirk a divorce had been obtained. In 31 Am.Jur., Judgments, Section 738, it is stated that “whenever judgment is the result of a fraud perpetrated upon the court by a false representation of jurisdictional facts, the court rendering it may set it aside in a proper proceeding instituted for that purpose. For example, if a judgment is obtained upon constructive service by the plaintiff’s false allegations that he resided in the county where the action was brought and that the defendant was a nonresident of the' state, the judgment may be set aside on the ground that it was procured by fraud.”
The action taken here by Polly Mae Kirk is consistent with- the recommendation and holding of this' court in thé leading case of Logsdon v. Logsdon, 204 Ky. 104, 263 S.W. 728, decided in 1924. In that case we stated that a judgment obtained through fraud as to a jurisdictional fact may be wholly vacated and set aside in a suit- for that purpose in the same county under Subsection 4 of Section 518 of the -Civil Code. To the same effect is Restatement of the Law, Judgments, Section 12b.
Judgment is affirmed.