| Ky. Ct. App. | Jan 9, 1900
DELIVERED THE OPINION OE THE COURT.
On the 26th -of December, 1896, the appellee instituted suit in the Kenton Circuit Court against the appellant seeking to obtain a divorce, alimony and the custody of Viola May, daughter of appellant and appellee.
The appellant made defense to the action, and, after the case was prepared for trial, the same was submitted in May, 1897; and at the December term, 1897, December 20th, . the court filed an opinion, and adjudged the action be dismissed, and that the then plaintiff, now appellee, recover of defendant her costs, including $150 now1 -allowed to the plaintiff’s attorney.
The- opinion is lost from the papers, according to the statement of the clerk; hence we are not advised as to the reasons for the judgment aforesaid.
It seems that the term -of the judge who rendered the judgment expired about the first of January, 1898, and that another judge succeeded him.
On the 14th of February, 1898, the appellee, then plaintiff, caused t-o be entered the following motion: “The plaintiff moves to set aside the judgment herein.” On the 7th of March, 1898, said motion was continued, and
On March 23, 1898, the defendant filed an affidavit showing, or attempting to show, that the then judge of the court would not afford him- a fair and impartial trial. Various other motions and papers were entered and filed with reference to said first motion and affidavit. •
On June 27, 1898, a motion for a special judge was overruled.
On the 5th and 6th of July, 1898, the plaintiff filed certain affidavits, which we presume were intended to be used in support of the motion made February 14, 1898.
On November 3, 1898, the following order was entered:' “The motion to set aside the judgment heretofore rendered herein is sustained, and said judgment is now set aside. Defendant excepts.”
On the next day the defendant prayed an appeal to the Court of Appeals' from the order of the day before overruling the motion for a special judge and setting aside the judgment herein. Said appeal was granted.
It appears that the defendant executed a supersedeas bond, upon which a supersedeas was issued and executed.
On February 10, 1899, the order granting the appeal aforesaid wass set aside; and on the same day a judgment divorcing the plaintiff from the defendant was entered, and the custody of Viola May Williams; infant- child of the marriage, was awarded to the plaintiff, and the defendant adjudged to pay plaintiff, by way of alimony and for maintenance of said child, the sum of $50 per month in -advance. The attorneys for plaintiff, Gregory and Cecil Pence, were allowed $150 for their services to plaintiff, to be paid by defendant, to which the defendant excepted.
From the judgment aforesaid, this appeal is prosecuted.
It will be seen from the foregoing that the circuit court, presided over at the time by Judge Perkins, had fully considered this action, and rendered a judgment therein upon the merits, and the case was no longer pending in court.
It is the contention of appellant that the court had no power to set aside the.judgment rendered December, 1897, at the time nor in the manner that it attempted to do so.
It is the contention of appellee that the Kenton Circuit Court was- by law authorized, for the period of .sixty days, to set aside any order which had been made by it.
It may be conceded that a court has power to set aside its orders during the term in which they were made ; and it is also true that, in courts of continuous session, like the Kenton Circuit Court, sixty days is considered a term, for the purpose of exercising the power aforesaid.
It is, however, contended for appellant that the judgment of December, 1897, could not be set aside, except as provided by section 997, Kentucky Statutes,- which reads as follows: “Any applications for a new trial in an equitable action or proceeding, except for newly discovered evidence, shall be made in fifteen days after judgment is rendered; and if the application be for cause mentioned, it shall be made as provided by general laws as to courts having terms, sixty days1 being counted as a term.”
It can hardly be contended that the motion made February, 1898, can be treated as a motion for a new trial,
It will be seen that the court did not sustain the motion, and set aside, or attempt bo set aside, the judgment of December, 1897, until November, 1898, and it is the contention of appellant that the court had no power at that time, if it ever had such power, to set aside said judgment.
It is contended for appellee that the court had plenary power over all orders and judgments rendered by it for the space of sixty days from such rendition, and the motion to set aside the judgment in question had the effect to suspend said judgment until such time as the court decided on the motion to set aside.
If it be conceded that the circuit court of Kenton county, in February, 1898, had the same power over the orders of the said court that it would have had if there had been no change of officers, yet it seems to us that such power could only be exercised within the sixty days from the rendition of such judgment or order.
We are not of opinion that the entry of a motion to set aside the judgment, and a continuance from time to time, could have the effect to prolong the power of the court over such orders or judgments. A motion to set aside an order is essentially different from a motion or proceeding to obtain a new trial.
The question under consideration seem® to have been decided in Turner v. Johnson (Ky.) [35 S. W., 924]. In that case a motion for a new trial had been overruled, and time given to file bill of exceptions. Afterwards, but at the same term, the court entertained a motion by appellants to reconsider the order overruling the motion
The appellee, in the case supra, insisted on his motion to strike the bill of exceptions from the record; it being his contention that the court had no power to set aside the order overruling the motion for a new trial after the term at which the order was made, and that the order of the court reserving the right to do so was a nullity, as was also the order of the November term, 1892, giving time to prepare and tender the bill of exceptions.
The contention of the appellant was that the action and order of the court at the May term, 1891, suspended the order overruling the motion for a new trial, and that the same so remained until the court acted on the motion to reconsider; hence that the bill of exceptions was legally filed and approved.
This court, in deciding the question involved in the case supra, said: “It is manifest that the learned judge of the court below was of the opinion that his action had the effect contended for by the appellants, and that he believed that he had the power to do so, and it is earnestly urged by appellants that we should so treat the order in question. It, however, seems clear to us that the order overruling the motion for a new trial was a final order, and that the court had no power over it after the expiration
It seems to us that the case at bar is a much weaker case than the case supra.
See, also, Bristow v. Bristow, 21 Ky. L. R., —, [51 S. W., 819, 52 S. W., 818]. See, also, Bentz v. Bentz (decided January 6, 1900), [54 S. W., 715],
It is suggested for appellee that, if the court had no jurisdiction to render the judgment complained of by appellant, appellant is not entitled to prosecute an appeal until he had first moved to set the same aside on the ground- that same was void. But inasmuch as appellant was in court, and at all times objecting and excepting to the orders and judgments complained of, he is entitled to prosecute this appeal.
It follows from the foregoing that appellee’s motion to dismiss this appeal must be, and is, overruled. We are 'further of the opinion that the court below had no power to set aside the judgment of December, 1897, at the time it attempted to do so. It therefore necessarily follows that the court erred in rendering the judgment complained of.
Judgments appealed from are therefore reversed, and cause remanded, with direction to dismiss the proceeding, and for proceedings consistent herewith.