Lovelace v. Lovell

107 Ky. 676 | Ky. Ct. App. | 1900

JUDGE PAYNTER

delivered the opinion oe the court.

The purpose of this action is to obtain relief against ■an erroneous judgment. The prayer of the petition is that the “judgment be modified and corrected to conform, to the facts as herein stated,” etc. Upon the trial of the case the court set aside the judgment, and it is from that order that this appeal is prosecuted. .

The action in which the alleged erroneous judgment was rendered was to recover on a warranty in a deed, and the alleged error in the judgment consists in fixing the recovery at too great an amount. The law and facts were submitted to Che judge, and he fixed the amount. As the action was on a contract of warranty, and the assessment of the amount of recovery, in their judgment, being too large, counsel for appellees .insist that they are entitled to a new trial, under subsection 5, section 340, Civil Code of Practice. A vacation of a judgment is not sought because of newly-discovered evidence.

By section 342, Civil Code of Practice, an application for a new trial must be made at the term in which the verdict or decision is rendered, and within three days after the verdiet or decision, except for the cause mentioned in subsection 7, section 340, which reads as follows: “Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” As the vacation was not sought because of newly-discovered evidence, there is nothing in section 340 which entitles the plaintiff to a new trial after the expiration of the term of the 'court in which the judgment was rendered.

The question then arises, is he entitled to a new trial under section 518, Civil Code of Practice, which reads as follows:

“The court in which a judgment has been rendered shall have power, after the expiration of the term, to vacate or modify it:

(1) By granting a new trial for the cause and in the manner prescribed in section 344.

(2) By a new trial granted in proceedings against defendants constructively summoned, as -is prescribed in chapter 1 of title 10.

(3) For misprisions of the clerk.

(4) For fraud practiced by the successful party in obtaining the judgment.

(5) For erroneous proceedings against a person under disability, except coverture, if the condition of such defendant do not appear in the record, nor the error in the proceedings.

(6) For the death of one of the parties before the judgment in the action.

(7) For unavoidable casualty or misfortune, preventing the party from appearing or defending.

(8) For errors in a judgment, shown by an infant within twelve months after arriving at full age, as prescribed in section 391.”

Section 314, Civil Code of Practice refers to grounds for a new trial discovered after the term at which the verdict or decision is rendered.

Subsection 5, section 51.8, Civil Code of Practice, authorizes a vacation or modification of the judgment for erroneous proceedings against a person under disability, except coverture, if the condition of such defendant do not appear in the record, nor the error in the proceedings.

Subsection 8 of that section authorizes the vacation or modification for errors in a judgment shown by an infant within twelve months after arriving at full age, etc.

Neither of these grounds is shown to exist, and therefore the appellees were not entitled to have the judgment vacated. If judgments can be vacated or modified simply because they are erroneous, then, in every case when it was claimed the judgment is erroneous, instead of an appeal, a party could file his petition for a vacation or modification of the judgment. This course of proceeding is not authorized by the Civil Code of Practice. The judgment complained of is not void. If it is subject to criticism, it is because it is erroneous.

We are of the opinion that the court erred in rendering a'judgment vacating it, and the judgment by which the court did so is reversed, with directions to dismiss the petition.