Sizemore v. Hunter

Opinion op the Court by Judge Clarke Dismissing the appeal. The judgment appealed from herein was rendered April 1, 1921, and cancels a deed executed to appellant, Dessie May Sizemore. She was the only defendant to the action, and a nonresident. She was summoned by constructive service only, and did not defend or enter her appearance, hence the allegations, of the petition could not be taken as true, but had to be proved. Section 126 of the Civil Code. The evidence to sustain the alleged ground for cancellation was taken by deposition and not by interrogatories, as is provided-must be done in such circumstances by section 574 of the Code. That this provision is mandatory and that a judgment rendered on evidence not so taken is erroneous but not void, is well settled. Luscher v. Julian’s Admr., 173 Ky. 150, 190 S. W. 692; Girdler v. Girdler, 184 Ky. 260, 211 S. W. 857. It is further provided, however, by section 414 of the Code, that in such circumstances a retrial may be granted by the trial court to a nonresident upon motion therefor at any time within five years after the rendition of the judgment, and by section 763, that this court shall not reverse or modify the judgment until such a motion has been made and overruled. As appellant made no such motion in the lower court before prosecuting this appeal, it is premature, and must be dismissed, and it is so ordered.