CHAPTER 451 Practice in Circuit Courts

451.010. Practice, how governed — Application of chapter. [Repealed.]

Compiler’s Notes.

This section (984, 1017; Acts 1976, ch. 62, § 128) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.020. Assignment of cases for trial in certain courts. [Repealed.]

Compiler’s Notes.

This section (982; Acts 1976, ch. 62, § 128) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.025. Consolidation of actions in court having more than one civil division. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 84, § 72) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.030. Common-law trial docket; how actions placed on. [Repealed.]

Compiler’s Notes.

This section (993, 1015) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.040. Equity trial docket; how actions and motions placed on. [Repealed.]

Compiler’s Notes.

This section (993, 994, 995, 996) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.050. Rule docket; fee. [Repealed.]

Compiler’s Notes.

This section (990) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.060. Month treated as term in criminal and penal actions. [Repealed.]

Compiler’s Notes.

This section (987) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.070. Time of appearance in criminal action. [Repealed.]

Compiler’s Notes.

This section (986) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.080. Time for defendant to answer in civil action. [Repealed.]

Compiler’s Notes.

This section (1003, 1004) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.090. Time for filing pleadings subsequent to answer. [Repealed.]

Compiler’s Notes.

This section (1005) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.100. Filing with clerk sufficient. [Repealed.]

Compiler’s Notes.

This section (1007) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.110. Revivor of action; time for objection to. [Repealed.]

Compiler’s Notes.

This section (999, 1000) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.120. Depositions, how taken. [Repealed.]

Compiler’s Notes.

This section (1006, 1008, 1009) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.130. Control of judgment or order after rendition; vacation or modification. [Repealed.]

Compiler’s Notes.

This section (988, 998) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.140. Application for new trial in equity. [Repealed.]

Compiler’s Notes.

This section (997) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.

451.150. Bill of exceptions in criminal proceedings; transcripts in civil actions. [Repealed.]

Compiler’s Notes.

This section (1016: amend. Acts 1952, ch. 84, § 51) was repealed by Acts 1962, ch. 234, § 61.

451.160. Appeal. [Repealed.]

Compiler’s Notes.

This section (1014) was repealed by Acts 1952, ch. 84, § 6.

451.170. Terms of judicial sales.

  1. Judicial sales of property shall be for cash, or on reasonable credit or partly for cash and partly on reasonable credit, as the court directs; but a sale of personal property shall not be on a longer credit than four (4) months.
  2. The court may by rule require purchasers at judicial sales to deposit with the officers making the sale, at the time of sale, a specified sum of money, sufficient to cover the expense of a resale. If the deposit is not made at that time, the officer shall at once resell the property.

History. 1002, 1010.

NOTES TO DECISIONS

1. Judicial Sale.

Where a judicial sale of land for agricultural purposes required the purchaser to pay a sum of money exceeding $20,000, and the court directed that $2,000 of this amount should be paid in cash, and the balance in six (6) and 12 months, the sale was not on reasonable credit within the meaning of this statute. Willett v. Johnson, 84 Ky. 411 , 1 S.W. 674, 8 Ky. L. Rptr. 398 , 1886 Ky. LEXIS 82 ( Ky. 1886 ) (decided under prior law).

The commissioner of the court may give a bidder a reasonable time to comply with the terms of a judicial sale, and where the requirement of an immediate cash deposit was fulfilled by the bidder two (2) days after the sale, it was in a reasonable time and within the discretion of the commissioner and the court to regard it as having been in compliance with the terms of the sale. Kentucky Utilities Co. v. Steenman, 283 Ky. 317 , 141 S.W.2d 265, 1940 Ky. LEXIS 325 ( Ky. 1940 ).

2. Deposit.

An order requiring a $50 deposit by the purchaser at the time of a judicial sale after affirmance on appeal from the judgment ordering the sale did not modify the original judgment and was a proper order authorized by this section. Edge v. Central Const. Co., 197 Ky. 662 , 247 S.W. 941, 1923 Ky. LEXIS 696 ( Ky. 1923 ).

Only a court of continuous session may require a purchaser at a judicial sale to deposit a sum of money sufficient to cover the expense of a resale. Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

Research References and Practice Aids

Cross-References.

Executions and judicial sales, KRS Ch. 426.

451.180. Bond of purchaser at judicial sale, to whom made payable — Enforcement.

The bond given by a purchaser of property at a judicial sale shall be made payable to the circuit clerk. Proceedings on the bond may be had in the name of the clerk to whom it is made payable on the relation of the person interested, and the person interested shall be responsible for the costs. The performance of the bond may be summarily enforced by orders of court, and by proceedings for contempt.

History. 1012: amend. Acts 1976, ch. 62, § 129; 1976 (Ex. Sess.), ch. 14, § 463, effective January 2, 1978.

NOTES TO DECISIONS

1. Construction.

This section must be read in connection with KRS 426.006 , 426.010 , 426.130 , 426.190 , 426.430 , 426.530 , 426.560 , 426.685 , 426.695 and 426.715 . Pineville Steam Laundry v. Phillips, 254 Ky. 391 , 71 S.W.2d 980, 1934 Ky. LEXIS 93 ( Ky. 1934 ).

Under this section, a sale bond has the force of a judgment, and its performance may be summarily enforced by orders of the court. Davis v. Kinnard, 271 Ky. 428 , 112 S.W.2d 412, 1937 Ky. LEXIS 256 ( Ky. 1937 ).

Cited:

Baringer1v Kaufman’s Adm’r, 289 Ky. 320 , 158 S.W.2d 378, 1941 Ky. LEXIS 30 ( Ky. 1941 ).

451.190. Taxes on property sold at judicial sale.

The court may, in actions for sale of real property, determine summarily, with or without written pleadings, the amount of any state, city or district taxes or assessments upon the property to be sold, and shall provide for their payment in the judgment. If the judgment does not so provide, the purchaser shall be entitled, at any time before the payment of the purchase price, to a credit for the amount of the taxes and assessments.

History. 989.

NOTES TO DECISIONS

1. Construction.

This section is remedial only, and is neither repealed by KRS 134.060 (now repealed) nor inconsistent with it. Crawford v. Wiedemann, 154 Ky. 666 , 159 S.W. 555, 1913 Ky. LEXIS 153 ( Ky. 1913 ).

2. Taxes.
3. — Payment.

An owner who buys in his land at judicial sale is not entitled to have the taxes satisfied out of the proceeds of sale. Caine v. Rich, 110 S.W. 289, 33 Ky. L. Rptr. 261 , 1908 Ky. LEXIS 343 (Ky. Ct. App. 1908).

Where mortgagor bid in land at foreclosure sale, he was not entitled to have unpaid taxes deducted from the purchase price, this section not being applicable in such case. Caine v. Rich, 110 S.W. 289, 33 Ky. L. Rptr. 261 , 1908 Ky. LEXIS 343 (Ky. Ct. App. 1908).

Where property was sold under a guarantee of an unencumbered title, which provision was incorporated in the judgment ordering the sale, and the court expressly retained the case on docket for such orders as may be necessary, and after confirmation of sale, purchaser was compelled to pay past due taxes on the property, the court had jurisdiction to enforce against petitioner, order permitting the purchaser to obtain title free from the lien. Lincoln Bldg. & Loan Ass'n v. Humphreys, 274 Ky. 359 , 118 S.W.2d 736, 1938 Ky. LEXIS 276 ( Ky. 1938 ).

4. — Verification.

Before adjudging the amount of taxes to be paid out of decedent’s estate, the court should require verification of the unpaid taxes in the same manner that other demands against the estate are verified. Gay v. Louisville, 93 Ky. 349 , 20 S.W. 266, 14 Ky. L. Rptr. 327 , 1892 Ky. LEXIS 98 ( Ky. 1892 ).

5. Assessment.

In an action to enforce a street improvement assessment, property was ordered sold, and owner was not prejudiced by the judgment, as court may summarily determine the amount of the assessment and order it paid from the proceeds of the sale. Maypother v. Gast, 110 S.W. 308, 33 Ky. L. Rptr. 395 (1908).

Cited:

Wilson v. Petzold, 116 Ky. 873 , 76 S.W. 1093, 1903 Ky. LEXIS 255 ( Ky. 1903 ).

451.200. Liability of receiver or depository of court.

A liability incurred by any person as receiver or depository of money or property committed to his charge by order of the court shall rank with debts due to the state and shall have priority over other debts owed by the receiver or depository and precedence over any mortgage or lien upon the property of the receiver or depository made after his appointment or designation.

History. 1013.

451.210. Record of fiduciaries’ settlements — Fees. [Repealed.]

Compiler’s Notes.

This section (992) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

451.220. Objection to bail for insufficiency. [Repealed.]

Compiler’s Notes.

This section (1013) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

CHAPTER 452 Venue and Change of Venue

Civil Actions in Circuit Courts

452.010. Grounds for change of venue.

  1. The parties to any civil action in a Circuit Court may, by consent, have an order in or out of court for its removal to any other Circuit Court.
  2. A party to any civil action triable by a jury in a Circuit Court may have a change of venue when it appears that, because of the undue influence of his adversary or the odium that attends the party applying or his cause of action or defense, or because of the circumstances or nature of the case he cannot have a fair and impartial trial in the county.

History. 1094: amend. Acts 1966, ch. 229, § 1.

NOTES TO DECISIONS

1. Change of Venue.

Where a court had jurisdiction of an action, its order changing the venue to another county was not void, however erroneous it may have been. McNew v. Martin, 60 S.W. 412, 22 Ky. L. Rptr. 1275 , 1901 Ky. LEXIS 332 (Ky. Ct. App. 1901).

No harm from refusal of change of venue for remarks made in presence of petit jury was shown, it not appearing that any of such jurors served on the jury in the case. Louisville & E. R. Co. v. Poulter's Adm'r, 119 Ky. 558 , 84 S.W. 576, 27 Ky. L. Rptr. 193 , 1905 Ky. LEXIS 29 ( Ky. 1905 ).

Denial of change of venue in action against newspaper for libel was error under evidence to the effect that because of the factional and feud troubles prevailing in the county the jury might be influenced in its verdict. Louisville Times Co. v. Lyttle, 257 Ky. 132 , 77 S.W.2d 432, 1934 Ky. LEXIS 535 ( Ky. 1934 ).

“Change of venue” means the transferring of a cause from a court in which it was brought or is pending to another coordinate one for reasons that prevent one or both of the parties from having a fair trial of the case. Pierce v. Crisp, 267 Ky. 420 , 102 S.W.2d 386, 1937 Ky. LEXIS 337 ( Ky. 1937 ).

A change of venue may be had because of odium which attends a party or his cause of action or defense or because of undue influence of his adversary in the county. Smith v. Mathers' Adm'r, 281 Ky. 213 , 135 S.W.2d 889, 1940 Ky. LEXIS 14 ( Ky. 1940 ).

Where the plaintiff did not contend that he could not have a fair trial in the county but only that he could not have a fair trial before that jury panel, his motion that a special venire be impaneled by the special judge for that trial only was the proper remedy and not a change of venue under this section. Wisdom v. Wilson, 450 S.W.2d 824, 1970 Ky. LEXIS 466 ( Ky. 1970 ).

2. — Discretion of Trial Judge.

Refusal of trial court to grant change of venue will not be disturbed on appeal unless abuse of discretion appears. Louisville & N. R. Co. v. Nethery, 160 Ky. 369 , 169 S.W. 883, 1914 Ky. LEXIS 480 ( Ky. 1914 ). See Rand, McNally & Co. v. Turner, 94 S.W. 643, 29 Ky. L. Rptr. 696 , 1906 Ky. LEXIS 291 (Ky. Ct. App. 1906); Dyer v. Staggs, 217 Ky. 683 , 290 S.W. 494, 1927 Ky. LEXIS 38 ( Ky. 1927 ); Louisville Times Co. v. Lyttle, 257 Ky. 132 , 77 S.W.2d 432, 1934 Ky. LEXIS 535 ( Ky. 1934 ); Bringardner Lumber Co. v. Knuckles, 278 Ky. 356 , 128 S.W.2d 727, 1939 Ky. LEXIS 424 ( Ky. 1939 ); Southeastern Greyhound Lines v. Davis, 290 Ky. 362 , 160 S.W.2d 625, 1942 Ky. LEXIS 378 ( Ky. 1942 ).

Trial judge is vested with a sound discretion in passing on application for change of venue. Smith v. Mathers' Adm'r, 281 Ky. 213 , 135 S.W.2d 889, 1940 Ky. LEXIS 14 ( Ky. 1940 ).

Trial court has sound discretion in granting or refusing application for change of venue. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

Where, on defendant’s motion for change of venue, it appeared that both the affidavits and counter-affidavits stated little more than mere conclusion, but that the counter-affidavit stated as facts that plaintiff was from an insignificant and uninfluential family in the community and therefore defendant could obtain a fair trial, court did not abuse discretion in denying motion. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

3. — Consent.

Although the venue of an action for the sale of land on the ground of indivisibility is local, where a suit was properly brought and progressed to submission in the county where the land lies, and where all parties consented to a change of venue for convenience of counsel, such action was permissible under this section since the judgment directed the sale of the land to be had at the county seat of the county where the land is. Burchfield v. Asher, 222 Ky. 108 , 300 S.W. 331, 1927 Ky. LEXIS 868 ( Ky. 1927 ).

4. — Waiver of Right.

Where plaintiff prosecuted his action for criminal conversation to trial and appeal, but did not file a motion for a change of venue until four (4) days before the second trial of the case although he knew at the time of the first trial the conditions on which he based his motion for the change of venue, plaintiff, by his great delay in making his motion, waived his right to a change in venue. Pierce v. Crisp, 267 Ky. 420 , 102 S.W.2d 386, 1937 Ky. LEXIS 337 ( Ky. 1937 ).

5. — Special Judge.

Where a special judge was elected to try a suit to vacate a decree, neither party can have a change of venue under this section. Small v. Reeves, 37 S.W. 682 ( Ky. 1896 ).

6. — Real Estate.

Since KRS 452.400 makes actions relating to real estate local in nature, this section would not authorize parties in suit to settle the affairs of defunct corporation to waive by consent jurisdiction in county where oil leases were located because this section merely allows a change of venue only after jurisdiction has attached. Shadoin v. Sellars, 223 Ky. 751 , 4 S.W.2d 717, 1928 Ky. LEXIS 431 ( Ky. 1928 ).

7. — Will Cases.

Change of venue in will cases is permissible where circumstances warrant same. Smith v. Mathers' Adm'r, 281 Ky. 213 , 135 S.W.2d 889, 1940 Ky. LEXIS 14 ( Ky. 1940 ).

8. — Wrongful Death Actions.

Since plaintiffs had the option of bringing action for wrongful death of son in county where defendant resided or where injury was done, once they made choice to bring the action where death occurred, venue could not be changed except by agreement or by compliance with the provisions of KRS 452.010 et seq.; therefore, action of trial court in granting a change of venue because it would be a more convenient forum to the parties, their witnesses and counsel was void ab initio. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

9. Undue Influence.
10. — Adversary.

In action against executors, the court should have granted plaintiff change of venue, it appearing that one of executors, a son-in-law of testator, was a man of commanding influence in the county, and that testator was a prominent and leading attorney, while plaintiff was an old woman, unable to read or write, indicted for murder and for keeping a bawdy house, which indictments she swore were procured by defendants for purpose of discrediting her. Wall v. Muster's Ex'rs, 63 S.W. 432, 23 Ky. L. Rptr. 556 , 1901 Ky. LEXIS 682 (Ky. Ct. App. 1901).

The fact that a party is personally popular in county and has numerous relatives and an extensive acquaintance there does not constitute “undue influence.” Louisville & N. R. Co. v. Nethery, 160 Ky. 369 , 169 S.W. 883, 1914 Ky. LEXIS 480 ( Ky. 1914 ).

The fact that sheriff arresting defendant was man of influence and that plaintiffs also were influential in the community, whereas defendant was nonresident of state, held insufficient to entitle defendant to change of venue, plaintiffs having introduced witnesses of high standing who testified that there was no opinion or sentiment in county which would prevent defendants from receiving fair trial. Dyer v. Staggs, 217 Ky. 683 , 290 S.W. 494, 1927 Ky. LEXIS 38 ( Ky. 1927 ).

On motion for change of venue, the question for determination is not confined to a showing of absence of bias against the movant, but it also comprehends the presence of influencing sympathy and favoritism towards his adversary among those eligible for jury service. Louisville Times Co. v. Lyttle, 257 Ky. 132 , 77 S.W.2d 432, 1934 Ky. LEXIS 535 ( Ky. 1934 ).

Special judge did not abuse his discretion in overruling defendant’s petition for a change of venue in action for wrongful taking of property for a tram road, where the regular trial judge, who had been one of plaintiffs’ counsel, withdrew from the case, and where plaintiffs’ affidavits established that a jury selected in the local county could give both parties a fair and impartial trial. Bringardner Lumber Co. v. Knuckles, 278 Ky. 356 , 128 S.W.2d 727, 1939 Ky. LEXIS 424 ( Ky. 1939 ).

Where defendant’s motion for a change of venue was supported by an affidavit setting forth that plaintiff was formerly county attorney, that his father was an official of the county, that he and his brother had taught school in the county, and that for these reasons it would be impossible for defendant to obtain a fair and impartial trial before citizens of the county, the trial court did not abuse its discretion in overruling the motion for change of venue. Southeastern Greyhound Lines v. Davis, 290 Ky. 362 , 160 S.W.2d 625, 1942 Ky. LEXIS 378 ( Ky. 1942 ).

11. — Adversary’s Counsel.

Change of venue is not authorized by influence of adversary’s counsel. Louisville & E. R. Co. v. Poulter's Adm'r, 119 Ky. 558 , 84 S.W. 576, 27 Ky. L. Rptr. 193 , 1905 Ky. LEXIS 29 ( Ky. 1905 ).

12. Legislative Matter.

Venue is purely a legislative matter and for the judiciary to attempt to rewrite the statute would be an unconstitutional usurpation of power and violative of Const., §§ 27, 28 and 29. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

13. Jurisdiction.

Family court that transferred a case to a transferee family court in a different county lost jurisdiction over the matter after the transfer and its order requiring the Cabinet for Health and Family Services (Kentucky) to provide child care assistance was void ab initio; the transferee court thus abused its discretion in enforcing the void order against the Cabinet in contempt proceedings. Cabinet for Health & Family Servs. v. J.T.G., 301 S.W.3d 35, 2009 Ky. App. LEXIS 245 (Ky. Ct. App. 2009).

Once a court transfers a case pursuant to KRS 452.010(1), that transferor court is divested of jurisdiction. Cabinet for Health & Family Servs. v. J.T.G., 301 S.W.3d 35, 2009 Ky. App. LEXIS 245 (Ky. Ct. App. 2009).

Cited:

Alexander v. Springfield Production Credit Asso., 673 S.W.2d 741, 1984 Ky. App. LEXIS 607 (Ky. Ct. App. 1984).

Research References and Practice Aids

Cross-References.

General Assembly, provision for change of venue in criminal cases, Const., § 11.

Special act concerning changes of venue in criminal cases forbidden, Const., § 59, Third.

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fuller, Change of Venue and Venire in Kentucky, 47 Ky. L.J. 495 (1959).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

452.020. Notice to adverse party.

Before an order for a change of venue is made, ten (10) days’ notice shall be given to the adverse party. The notice shall be served and filed as provided in the Rules of Civil Procedure.

History. 1095: amend. Acts 1952, ch. 84, § 52.

NOTES TO DECISIONS

1. Failure to Give Notice.

Error cannot be predicated on refusal of application for change of venue, made after appearance term, neither notice to adverse party, as required by this section, nor verified petition, accompanied by affidavits, as required by KRS 452.030 , being complied with. Louisville & E. R. Co. v. Poulter's Adm'r, 119 Ky. 558 , 84 S.W. 576, 27 Ky. L. Rptr. 193 , 1905 Ky. LEXIS 29 ( Ky. 1905 ).

Refusal of change of venue was proper where ten (10) days’ notice of application for a change was not given. Miller v. Rockcastle County, 248 Ky. 290 , 58 S.W.2d 598, 1933 Ky. LEXIS 230 ( Ky. 1933 ).

Cited:

Dyer v. Staggs, 217 Ky. 683 , 290 S.W. 494, 1927 Ky. LEXIS 38 ( Ky. 1927 ); Southeastern Greyhound Lines v. Davis, 290 Ky. 362 , 160 S.W.2d 625, 1942 Ky. LEXIS 378 ( Ky. 1942 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Application for Change of Venue — Civil, Form 38.01.

452.030. Application for change of venue — Hearing — Witnesses — Decision.

Application for a change of venue shall be made by verified motion of the party seeking a change to the court, in which the reasons and grounds for the change shall be stated. On any motion for change of venue the court shall have a hearing for the presentation of evidence and arguments for and against the motion. Either party may subpoena witnesses for the hearing on the motion. The granting of a change of venue shall be within the sound discretion of the court, and shall be granted by the court when justice so requires.

History. 1096: amend. Acts 1966, ch. 229, § 2.

NOTES TO DECISIONS

1. Construction.

Applicant must comply with provisions of this section in order to secure change of venue. Michael v. Fegenbush, 240 Ky. 415 , 42 S.W.2d 527, 1931 Ky. LEXIS 415 ( Ky. 1931 ).

There is no provision, either in this section or elsewhere, conferring authority upon the judge to summon a jury from another county for the trial of civil cases or proceedings. Black Mountain Corp. v. Appleman, 262 Ky. 53 , 89 S.W.2d 311, 1935 Ky. LEXIS 761 ( Ky. 1935 ).

2. Affidavits.

Error cannot be predicated on refusal of application for change of venue made after appearance term, neither notice to adverse party, as required by KRS 452.020 , nor verified petition, accompanied by affidavits, as required by this section, being complied with. Louisville & E. R. Co. v. Poulter's Adm'r, 119 Ky. 558 , 84 S.W. 576, 27 Ky. L. Rptr. 193 , 1905 Ky. LEXIS 29 ( Ky. 1905 ).

Where party failed to comply with provisions of statute which prescribe the form of affidavits which accompany the petition, the court correctly overruled the application for change. Fitzgerald v. Commonwealth, 98 S.W. 319, 30 Ky. L. Rptr. 349 , 1906 Ky. LEXIS 302 (Kan. Ct. App. 1906); Graham v. Commonwealth, 164 Ky. 317 , 175 S.W. 981, 1915 Ky. LEXIS 395 ( Ky. 1915 ).

Court may decide motion for change of venue on the affidavits and counter-affidavits that are filed, and is not required to hear other evidence. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

On motion for change of venue, movant is not limited in the number of affidavits he may offer in support of his motion. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

The party opposing a change of venue may controvert the motion by counter-affidavits, and he is not required to introduce evidence to overcome movant’s two (2) affidavits. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

3. — Disqualification of Judge.

An affidavit filed by plaintiff stating his belief that regular judge would not give him fair trial, because of judge’s hostility to him, growing out of fact that he had actively opposed judge at last election, and further stating that judge had threatened that he would make all who had “kicked out of the harness have a hard road to travel,” was sufficient to require judge to vacate the bench. Givens v. Crawshaw, 55 S.W. 905, 21 Ky. L. Rptr. 1618 , 1900 Ky. LEXIS 583 (Ky. Ct. App. 1900).

An affidavit that a judge is disqualified to act must set forth the facts upon which the general allegation is made, and mere inferences, suspicions and conjectures are not sufficient. Boreing v. Wilson, 128 Ky. 570 , 108 S.W. 914, 33 Ky. L. Rptr. 14 , 1908 Ky. LEXIS 85 ( Ky. 1908 ).

It is only judicial favoritism that disqualifies a judge, and mere personal or social favoritism shown a party or his attorneys is not sufficient. Boreing v. Wilson, 128 Ky. 570 , 108 S.W. 914, 33 Ky. L. Rptr. 14 , 1908 Ky. LEXIS 85 ( Ky. 1908 ).

4. Verification of Petition.

A petition for a change of venue, which is not verified, is fatally defective. Rand, McNally & Co. v. Turner, 94 S.W. 643, 29 Ky. L. Rptr. 696 , 1906 Ky. LEXIS 291 (Ky. Ct. App. 1906).

5. Discretion of Court.

A denial of a change of venue will not be reviewed except in a case of an abuse of discretion. Drake v. Holbrook, 92 S.W. 297, 28 Ky. L. Rptr. 1319 (1906).

A denial of a change of venue will not be interfered with on appeal unless the ruling is manifestly erroneous. Rand, McNally & Co. v. Turner, 94 S.W. 643, 29 Ky. L. Rptr. 696 , 1906 Ky. LEXIS 291 (Ky. Ct. App. 1906).

When counter-affidavits were filed by the Commonwealth controverting the statements of the defendant’s petition for change of venue and affidavits in support thereof, an issue was made, the determination of which was a matter addressed to the discretion of the trial judge. McDaniel v. Commonwealth, 246 Ky. 688 , 56 S.W.2d 340, 1933 Ky. LEXIS 18 ( Ky. 1933 ).

Trial court has sound discretion in granting or refusing application for change of venue. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

Where, on defendant’s motion for change of venue, it appeared that both the affidavits and counter-affidavits stated little more than mere conclusions, but that the counter-affidavit stated as facts that plaintiff was from an insignificant and uninfluential family in the community and therefore defendant could obtain a fair trial, court did not abuse discretion in denying motion. Peel v. Bramblett, 305 Ky. 577 , 204 S.W.2d 565, 1947 Ky. LEXIS 828 ( Ky. 1947 ).

6. Wrongful Death Actions.

Since plaintiffs had the option of bringing action for wrongful death of son in county where defendant resided or where injury was done, once they made choice to bring the action where death occurred venue could not be changed except by agreement or by compliance with the provisions of KRS 452.010 et seq.; therefore, action of trial court in granting a change of venue because it would be a more convenient forum to the parties, their witnesses and counsel was void ab initio. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

7. Appeal.

Where the action of the court in refusing a change of venue was not reviewable on appeal under the law in force when the action was taken, it was held it could not be reviewed, although, by a change in the law before the motion for a new trial was acted upon, such rulings were made reviewable. Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ).

Cited:

Bishop v. Commonwealth, 58 S.W. 817, 1900 Ky. LEXIS 287 , 22 Ky. L. Rptr. 760 (1900), rev’d, 109 Ky. 558 , 22 Ky. L. Rptr. 1161 , 60 S.W. 190, 1901 Ky. LEXIS 16 ( Ky. 1901 ); Bishop v. Commonwealth, 109 Ky. 558 , 22 Ky. L. Rptr. 1161 , 60 S.W. 190, 1901 Ky. LEXIS 16 ( Ky. 1901 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Change of Venue — Civil, Form 38.02.

452.040. Not more than one change of venue allowed each party.

Not more than one (1) change of venue or application for a change of venue shall be allowed to any party in the same civil action.

History. 1102.

NOTES TO DECISIONS

1. Remand.

The case, when remanded to court whence it came, in obedience to direction of Court of Appeals, stood as if it had never been removed, and the court then had power to make another removal. Smith v. Commonwealth, 113 Ky. 19 , 67 S.W. 32, 23 Ky. L. Rptr. 2271 , 1902 Ky. LEXIS 17 ( Ky. 19 02).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Change of Venue — Civil, Form 38.02.

452.050. Order changing venue — To what county.

A change of venue shall be made to the Circuit Court of the adjacent county most convenient to the parties, their witnesses and their attorneys, and to which there is no valid objection. The order of change of venue may be made subject to any equitable terms and conditions that safety to the rights of the parties requires and the court, in its discretion, prescribes.

History. 1097.

NOTES TO DECISIONS

1. Void Order.

Since plaintiffs had the option of bringing action for wrongful death of son in county where defendant resided or where injury was done, once they made choice to bring the action where death occurred venue could not be changed except by agreement or by compliance with the provisions of KRS 452.010 et seq.; therefore, action of trial court in granting a change of venue because it would be a more convenient forum to the parties, their witnesses and counsel was void ab initio. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

2. Waiver.

Venue was waived in the custody matter when both a mother and her significant other filed pleadings with no objection to the venue. Pickelsimer v. Mullins, 2008 Ky. App. LEXIS 95 (Ky. Ct. App. Mar. 28, 2008), aff'd in part and rev'd in part, 317 S.W.3d 569, 2010 Ky. LEXIS 7 ( Ky. 2010 ).

452.060. Transfer of papers on change of venue.

Immediately on the making or receipt of the order, the circuit clerk shall make out a transcript of the orders pertaining to the case, which, together with the original papers, he shall, as soon as practicable, carry or send by some discreet person to the clerk of the court to which the action is removed. The former circuit clerk shall be responsible for the conduct of the person so employed.

History. 1099.

452.070. Order void unless expense of removal paid in ten (10) days.

The order of change of venue shall be void unless within ten (10) days the party obtaining the order pays to the clerk ten cents ($0.10) a mile for the expense of travel, going and returning, in making the removal.

History. 1098.

NOTES TO DECISIONS

1. Mileage.

The mileage allowed the clerk is simply a legislative estimate of his reasonable expenses. Coleman v. Mulligan, 234 Ky. 691 , 28 S.W.2d 980, 1930 Ky. LEXIS 249 ( Ky. 1930 ).

Cited:

Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 , 5 A.L.R.2d 1154 ( Ky. 1948 ).

452.080. When removed case stands for trial.

Upon receipt of the paper the receiving clerk shall note the action of record, and the action shall proceed as if the last pleading, motion or order was made on the date of such notation.

History. 1100: amend. Acts 1952, ch. 84, § 53.

452.090. Power of court to which action removed.

The court to which the action is removed shall have the same power as to its trial and final disposition as the court from which it was removed.

History. 1101.

NOTES TO DECISIONS

1. Application.

After nearly two years of litigation, the trial court did not abuse its discretion in not transferring the case back to the court where it was initially filed; even if the transfer had been improper, the trial court was empowered to consider whether its retention of the case or another transfer of venue would more appropriately serve the interests of justice and judicial economy. Abbott v. Chesley, 413 S.W.3d 589, 2013 Ky. LEXIS 367 ( Ky. 2013 ), cert. denied, 572 U.S. 1135, 134 S. Ct. 2672, 189 L. Ed. 2d 210, 2014 U.S. LEXIS 3798 (U.S. 2014).

Research References and Practice Aids

Cross-References.

Court to which case transferred for final judgment may tax costs, KRS 453.090 .

452.100. Application at appearance term; continuance. [Repealed.]

Compiler’s Notes.

This section (1103) was repealed by Acts 1952, ch. 84, § 6.

452.105. Transfer of case on party’s motion upon determination of improper venue.

In civil actions, when the judge of the court in which the case was filed determines that the court lacks venue to try the case due to an improper venue, the judge, upon motion of a party, shall transfer the case to the court with the proper venue.

History. Enact. Acts 2000, ch. 420, § 1, effective July 14, 2000.

NOTES TO DECISIONS

1. Application.

Mistake by a plaintiff’s counsel of filing a claim in the wrong county does not negate the application of KRS 452.105 ; thus, the fact that the attorney of appellee customer mistakenly filed the customer’s personal injury action against appellant bus company in the wrong county, did not prevent the customer from later seeking to transfer venue to the proper county and did not prevent the trial court from granting such transfer as required by KRS 452.105 . Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387, 2003 Ky. LEXIS 79 ( Ky. 2003 ).

In an action by appellee customer against appellant bus company to recover damages after the customer broke the customer’s leg while boarding a bus, the court of appeals properly refused to grant the company a writ of prohibition to prevent appellee judge from transferring venue to the county where the injury occurred, as the judge properly granted the customer’s motion to transfer venue given that, pursuant to KRS 452.455 , venue was proper in the county where the injury occurred, and KRS 452.105 required the trial court to transfer venue to the proper county upon the motion of a party once it determined that it lacked proper venue. Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387, 2003 Ky. LEXIS 79 ( Ky. 2003 ).

Extraordinary relief was not available to interrupt pending litigation unless a petitioner could show lack of an adequate remedy by appeal, and great and irreparable injury; if the mother was correct that the Floyd County Circuit Court was an improper venue for the purported father’s civil action, in due course, then the trial court or an appellate court would so recognize, and relief in the nature of dismissal for improper venue would be granted. While inconvenience, expense, annoyance, or other undesirable aspects of litigation might be present, great and irreparable injury was not. Fritsch v. Caudill, 146 S.W.3d 926, 2004 Ky. LEXIS 240 ( Ky. 2004 ).

Just as KRS 452.105 mandates that a trial court transfer cases upon a determination that the venue selected is improper, a dismissal on grounds of forum non conveniens results in the applicability of the saving statute, KRS 413.270 , as forum non conveniens is a venue-based dismissal. Dollar Gen. Stores, Ltd. v. Smith, 237 S.W.3d 162, 2007 Ky. LEXIS 207 ( Ky. 2007 ).

After nearly two years of litigation, the trial court did not abuse its discretion in not transferring the case back to the court where it was initially filed; even if the transfer had been improper, the trial court was empowered to consider whether its retention of the case or another transfer of venue would more appropriately serve the interests of justice and judicial economy. Abbott v. Chesley, 413 S.W.3d 589, 2013 Ky. LEXIS 367 ( Ky. 2013 ), cert. denied, 572 U.S. 1135, 134 S. Ct. 2672, 189 L. Ed. 2d 210, 2014 U.S. LEXIS 3798 (U.S. 2014).

Trimble Circuit Court had properly transferred an action challenging the Kentucky Energy and Environment Cabinet's issuance of a wastewater discharge permit to the Franklin Circuit Court where the statute identifying the place for appeal, Ky. Rev. Stat. Ann. § 224.10-470 (1), concerned venue, not subject matter jurisdiction, and under Ky. Rev. Stat. Ann. § 452.105 , a transfer was the proper remedy. Louisville Gas & Elec. Co. v. Ky. Waterways Alliance, 2015 Ky. App. LEXIS 78 (Ky. Ct. App. May 29, 2015), rev'd, 517 S.W.3d 479, 2017 Ky. LEXIS 201 ( Ky. 2017 ).

2. Waiver.

There is nothing in the language of KRS 452.105 that limits transfer of a case to another venue to instances where waiver is not at issue; thus, even though appellant bus company did not object in appellee customer’s personal injury suit to the customer’s initial placement of venue in the wrong county, that did not mean that a waiver of venue somehow prevented the customer from seeking, or the trial court from granting, a change of venue to the proper county pursuant to KRS 452.105 . Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387, 2003 Ky. LEXIS 79 ( Ky. 2003 ).

As a former wife waived her objection to improper venue under KRS 452.470 by filing the divorce petition in a county where neither party resided, and as the former husband waived any objection to improper venue by failing to raise it by motion, responsive pleading, or an amendment thereof, his motion to transfer venue was properly denied. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Owner waived any challenge to venue, for purposes of KRS 452.105 , given that by the time the owner moved for a transfer of venue, the parties had made many appearances and discovery had been taken, and the issuance of a supplemental police report did not justify the owner’s failure to timely raise the venue issue; the owner could have conducted an independent investigation of the accident’s exact location through other witnesses. Gibson v. Fuel Transp., Inc., 410 S.W.3d 56, 2013 Ky. LEXIS 29 ( Ky. 2013 ).

In the absence of a showing that the family court was given an opportunity to rule on the issue, the issue of venue was waived; a child did not provide any citation to the record indicating that she filed a motion to transfer the case to a different forum, and she initiated the action by filing her petition in the circuit court. N.B.D. v. Cabinet for Health & Family Servs., 2018 Ky. App. LEXIS 248 (Ky. Ct. App. Oct. 5, 2018), op. withdrawn, sub. op., 2018 Ky. App. LEXIS 262 (Ky. Ct. App. Nov. 2, 2018).

Cited in:

Hensley v. Traxx Mgmt. Co., 2020 Ky. App. LEXIS 58 (Ky. Ct. App. May 8, 2020).

452.110. Application of KRS 452.010 to 452.090.

KRS 452.010 to 452.090 apply only to civil actions in Circuit and District Courts.

History. Amend. Acts 1976 (Ex. Sess.), ch. 14, § 465, effective January 2, 1978.

Compiler’s Notes.

This section was originally created by the Legislative Research Commission in order to clarify the chapter.

Research References and Practice Aids

Kentucky Law Journal.

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

Civil Actions in Inferior Courts

452.160. Change of venue from county or quarterly court to circuit court, how governed. [Repealed.]

Compiler’s Notes.

This section (1105) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

Legislative Research Commission Note.

KRS 452.160 was incorrectly printed in Acts 1976 (Ex. Sess.), ch. 14, § 491, as “452.166,” which section does not exist.

452.170. Transfer of papers on change of venue — Remanding of papers. [Repealed.]

Compiler’s Notes.

This section (1106) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

452.180. Change of venue from justice’s court or police court. [Repealed.]

Compiler’s Notes.

This section (1107) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

Criminal and Penal Actions in Circuit Courts

452.210. Change of venue to secure fair trial.

When a criminal or penal action is pending in any Circuit Court, the judge thereof shall, upon the application of the defendant or of the state, order the trial to be held in some adjacent county to which there is no valid objection, if it appears that the defendant or the state cannot have a fair trial in the county where the prosecution is pending. If the judge is satisfied that a fair trial cannot be had in an adjacent county, he may order the trial to be had in the most convenient county in which a fair trial can be had.

History. 1109.

NOTES TO DECISIONS

1. In General.

Where, up to time of trial, the condition of public sentiment in county was such that it was impossible to induce a member of the local bar to take part in the defense, the accused was entitled to a change of venue. Browder v. Commonwealth, 136 Ky. 45 , 123 S.W. 328, 1909 Ky. LEXIS 456 ( Ky. 1909 ).

Fact that defendant in criminal case had burden of additional expense and difficulty in obtaining witnesses because of change of venue did not subject him to such great and irreparable injury as would justify issuing prohibition to restrain change of venue. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Every case in respect to a change of venue must be determined on its own state of facts. Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

Where defendant was tried more than 20 months after a prosecutor issued a press release regarding the sheriff’s allegedly improper investigation of defendant’s offenses and defendant had objected to the prosecutor’s motion to change venue under KRS 452.210 , defendant pointed to no actual prejudice in that no juror on the final panel had advised that he or she was aware of or was influenced by the press release. Johnson v. Commonwealth, 2007 Ky. App. LEXIS 10 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 1217 (Ky. Ct. App. Jan. 12, 2007), review denied, ordered not published, 2007 Ky. LEXIS 157 (Ky. Aug. 15, 2007).

2. Construction.

The provisions of this section are mandatory. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

The venue of actions is fixed by law and cannot be changed except upon proper showing and in strict conformity with the provisions of the statute. Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

3. Right to Change.

The right to change of venue is wholly statutory, and the legislature has authority to provide for the extent and manner of its exercise. Heck v. Commonwealth, 163 Ky. 518 , 174 S.W. 19, 1915 Ky. LEXIS 274 ( Ky. 1915 ).

Kentucky empowers the trial courts to grant changes in venue only if there is statutory authority for doing so; this section grants the trial court authority to transfer the trial of a criminal proceeding to an adjacent county only if it appears the defendant or the Commonwealth cannot receive a fair trial in the county where the prosecution is pending, and there is no provision for a transfer for the “convenience” of either party or witnesses. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

4. Jurisdiction.

Fact that petition by Commonwealth for change of venue was insufficient would not render order for change of venue void, but merely erroneous, and would not deprive court to whom venue was changed of jurisdiction to try case. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

5. Application.

In deciding question of change of venue, the court will not be concluded by the opinion of witnesses, but will look to the facts for itself, since it may happen that the same feeling which prevents his having a fair trial, may prevent him from obtaining witnesses to testify on motion for a change of venue. Browder v. Commonwealth, 136 Ky. 45 , 123 S.W. 328, 1909 Ky. LEXIS 456 ( Ky. 1909 ).

Trial court properly denied defendant’s petition for a change of venue even though his notice and petition were sufficient and the court heard no other evidence, since his affidavits required by KRS 452.220 did not state that affiants were acquainted with the state of public opinion in the county. Hunter v. Commonwealth, 208 Ky. 466 , 271 S.W. 559, 1925 Ky. LEXIS 306 ( Ky. 1925 ).

It is proper for trial court to overrule motion for change of venue when application is not made in accordance with provisions of this section. Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ).

The trial court erred in sustaining defendant’s demurrer to Commonwealth’s petition for change of venue where the grounds set forth in the petition were sufficient, with the result that the Court of Appeals directed the trial court to overrule defendant’s demurrer and allow the defendant to controvert the allegations of the petition if desired. Commonwealth v. Pratt, 240 S.W.2d 635, 1951 Ky. LEXIS 1013 ( Ky. 1951 ).

Defendant filing an unverified petition for change of venue on the date trial was set was not entitled to a change of venue, since statutory requirements were not met. Bryant v. Commonwealth, 467 S.W.2d 351, 1971 Ky. LEXIS 369 ( Ky. 1971 ).

6. — Renewal.

Where accused at first trial applied for change of venue, which was denied, he was not required to renew his application at second trial, since law only allows one (1) application. Browder v. Commonwealth, 136 Ky. 45 , 123 S.W. 328, 1909 Ky. LEXIS 456 ( Ky. 1909 ).

Where defendant moved for change of venue on June 24, 1964, by renewing an application for such change made on December 9, 1963, trial court properly denied the renewed application since it did not present the state of public opinion on June 24, 1964. Howard v. Commonwealth, 395 S.W.2d 355, 1965 Ky. LEXIS 139 ( Ky. 1965 ), cert. denied, 384 U.S. 995, 86 S. Ct. 1905, 16 L. Ed. 2d 1012, 1966 U.S. LEXIS 1147 (U.S. 1966).

7. — Timely Motion Required.

Where defendant in murder prosecution had not asked for change of venue, after trial and conviction he could not for the first time claim because he could not get a fair trial a change of venue should have been ordered. Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

8. Denial of Motion.

Defendant’s motion for change of venue was in effect overruled when trial court proceeded with the trial, and it was proper for the court to enter a nunc pro tunc order after the trial overruling the motion for a change of venue. Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ).

Trial court’s action in calling a jury and proceeding with the trial of the case constituted a denial of defendant’s renewed motion for change of venue. Howard v. Commonwealth, 395 S.W.2d 355, 1965 Ky. LEXIS 139 ( Ky. 1965 ), cert. denied, 384 U.S. 995, 86 S. Ct. 1905, 16 L. Ed. 2d 1012, 1966 U.S. LEXIS 1147 (U.S. 1966).

The denial of defendant’s motion for change of venue was proper, where the news accounts did not reveal the evidence against defendant and primarily dealt with the various steps which were routinely taken in bringing his case to trial, where several of the news accounts stated that defendant had been charged with other crimes and asserted that he was linked in some way with a criminal ring, but the stories were written as factual presentations without sensationalism, and where defendant produced no evidence that the community was saturated with hostile and inflammatory media reports which made it impossible for him to receive a fair trial. Jenkins v. Bordenkircher, 611 F.2d 162, 1979 U.S. App. LEXIS 9545 (6th Cir. Ky. 1979 ), cert. denied, 446 U.S. 943, 100 S. Ct. 2169, 64 L. Ed. 2d 798, 1980 U.S. LEXIS 1649 (U.S. 1980).

Where 18 months elapsed between commission of murder and trial and defendant did not introduce any proof by affidavit or otherwise that public opinion was such that he could not receive a fair trial, the trial court did not abuse its discretion in refusing to change venue. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

The trial judge did not abuse his discretion in denying a motion for a change of venue, where neither defendant pursued an evidentiary hearing, the defendants refused the trial court’s suggestion of an adjoining county’s county jury, and the trial judge ordered individual voir dire on the issue of pretrial publicity. Epperson v. Commonwealth, 809 S.W.2d 835, 1990 Ky. LEXIS 105 ( Ky. 1990 ), modified, 1991 Ky. LEXIS 89 (Ky. July 3, 1991), cert. denied, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789, 1992 U.S. LEXIS 60 (U.S. 1992), cert. denied, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122, 1992 U.S. LEXIS 393 (U.S. 1992), writ denied, 2013 Ky. Unpub. LEXIS 21 (Ky. Mar. 21, 2013).

The trial court did not err in denying homicide defendant’s petition for change of venue due to lack of reasonable notice where defendant filed his petition two (2) days before trial and where defendant was well aware of the pre-trial publicity and the feelings of the community about the case. Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

In defendant’s capital murder case, the court properly denied his motion for change of venue because there was evidence that one anonymous person was unhappy that justice entitled defendant to a fair trial before he could be sentenced to death; without more, one miscreant member of the community could not dictate where a criminal defendant was tried. Additionally, defendant had already been granted a change of venue from Trigg County to Livingston County. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

9. Mandatory Change.

Where defendant filed motion for change of venue setting up sufficient grounds, and supporting it by requisite affidavits, and no witnesses were introduced by either party, the defendant was entitled to a change of venue, and the court had no discretion in the matter. Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ).

Where a defendant files a petition for a change of venue based on the state of public feeling against him which is not challenged by affidavits or witnesses controverting the statements of the petition, and where said petition complies with the requirements of KRS 452.220 , the defendant is entitled to the change of venue, and the court has no discretion in the matter. Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

10. Discretion of Trial Court.

Where Commonwealth introduced 13 or 14 witnesses who testified that accused could obtain fair trial, and accused introduced about the same number of witnesses who testified that he could not have a fair trial, the denial of a change of venue was within court’s discretion, especially where accused had been a resident of county all his life and decedent was nonresident. Truax v. Commonwealth, 149 Ky. 699 , 149 S.W. 1033, 1912 Ky. LEXIS 722 ( Ky. 1912 ).

Action of trial court in allowing or refusing to allow a change of venue will not be reversed unless it appears that trial court abused its discretion. Heck v. Commonwealth, 163 Ky. 518 , 174 S.W. 19, 1915 Ky. LEXIS 274 ( Ky. 1915 ). See McElwain v. Commonwealth, 146 Ky. 104 , 142 S.W. 234, 1912 Ky. LEXIS 30 ( Ky. 1912 ); Tolliver v. Commonwealth, 165 Ky. 312 , 176 S.W. 1190, 1915 Ky. LEXIS 534 ( Ky. 1915 ); Allen v. Commonwealth, 168 Ky. 325 , 182 S.W. 176, 1916 Ky. LEXIS 552 ( Ky. 1916 ); Whitson v. Commonwealth, 197 Ky. 745 , 247 S.W. 979, 1923 Ky. LEXIS 712 ( Ky. 1923 ); Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ); Schleeter v. Commonwealth, 218 Ky. 72 , 290 S.W. 1075, 1927 Ky. LEXIS 109 ( Ky. 1927 ); Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ); Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

The discretion of trial judge in granting or refusing application for change of venue, may be interfered with if it appears that ruling was prejudicial to the constitutional rights of complaining party. Allen v. Commonwealth, 168 Ky. 325 , 182 S.W. 176, 1916 Ky. LEXIS 552 ( Ky. 1916 ).

It is within the province of the Court of Appeals to determine that the trial court abused its discretion when a change of venue was sought in cases where opposing evidence was heard. Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ).

Trial court must determine, in exercise of sound discretion, whether venue should be changed in case allegations of motion are controverted. Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ).

Where there is evidence both in support and in resistance to a motion for a change of venue, the granting or refusing of the motion is within the discretion of the court. Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

Decision on question whether to grant change of venue on ground accused cannot have fair trial in local county or to avoid change of venue by summoning jury panel from adjoining county is within discretion of trial judge. Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ), overruled in part, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ). See Patterson v. Commonwealth, 256 Ky. 745 , 77 S.W.2d 14, 1934 Ky. LEXIS 487 ( Ky. 1934 ).

Granting of change of venue in murder prosecution rests solely in the sound discretion of the court. Canter v. Commonwealth, 274 Ky. 508 , 119 S.W.2d 864, 1938 Ky. LEXIS 310 ( Ky. 1938 ).

Decision of trial court on motion for change of venue is always followed except where abuse of discretion appears. Gulley v. Commonwealth, 284 Ky. 98 , 143 S.W.2d 1059, 1940 Ky. LEXIS 451 ( Ky. 1940 ).

Whether to grant change of venue rests in sound discretion of trial court under evidence and circumstances of each case. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ). See Sizemore v. Commonwealth, 287 Ky. 631 , 154 S.W.2d 732, 1941 Ky. LEXIS 605 ( Ky. 1941 ).

In an application for a change of venue the trial court is vested with a wide discretion in determining the issue, but such discretion is not an arbitrary one, and, if upon review by the Court of Appeals, it appears that the discretionary power was not properly exercised, a reversal of the judgment will be ordered. Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

Change of venue rests only in the discretion of the court in which the change is sought by either party. Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ).

Decision on motion for change of venue depends upon facts and circumstances of the particular case, and the trial court has a sound discretion in making decision, with the result that where there is evidence both in support and in resistance of motion, Court of Appeals will not interfere with trial court’s decision unless it is reasonably certain that there has been an abuse of discretion. Carnes v. Commonwealth, 306 Ky. 55 , 206 S.W.2d 44, 1947 Ky. LEXIS 941 ( Ky. 1947 ).

Ordinarily, granting or refusing change of venue is a matter within sound discretion of trial court, but trial court cannot act arbitrarily or capriciously. Commonwealth v. Pratt, 240 S.W.2d 635, 1951 Ky. LEXIS 1013 ( Ky. 1951 ).

The granting or refusing of a change of venue is within the broad discretion of the trial court, and great weight is given to his judgment on the matter, so that only when such discretion is abused will the Court of Appeals intervene. Commonwealth v. Averitt, 241 S.W.2d 989, 1951 Ky. LEXIS 1032 ( Ky. 1951 ).

Action on a motion for a change of venue is addressed to the sound judicial discretion of the trial judge, and on review it must be shown that it has not been justly and properly exercised under the circumstances. Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

Granting or refusing a change of venue rests solely in the sound discretion of trial judge, and a judgment of conviction will not be reversed because of a failure to grant such change, unless it is made to appear that such discretion was abused. Tinsley v. Commonwealth, 283 S.W.2d 362, 1955 Ky. LEXIS 302 ( Ky. 1955 ).

Where there is evidence to support and in resistance to motion to change venue, trial judge is vested with sound discretion in determining issue, and unless it appears with reasonable certainty that there has been abuse of discretion, his decision will not be disturbed. Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

Action taken by the trial judge in passing on a motion for change of venue was a matter within his discretion, and such action would not be disturbed on review unless it is shown that such discretion was not justly and properly exercised under the circumstances. Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ).

Trial judge must determine whether situation exists which will probably prevent accused from obtaining fair and impartial trial within venue from which removal is sought, and in making such determination, judge has wide discretion, and his discretion is given weight because he is present in county and presumed to know situation. Nickell v. Commonwealth, 371 S.W.2d 849, 1963 Ky. LEXIS 113 ( Ky. 1963 ).

KRS 452.550 means only that certain offenses are indictable and may be prosecuted in either county. Once an indictment is returned, however, the statute does not purport to empower a trial judge of that particular circuit to transfer the prosecution to another county, as if the indictment had been returned there in the first instance; such transfer would amount to a change of venue upon a ground and to counties of destination not embraced within the applicable statutes. Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

Trial judge did not have authority to transfer prosecutions of doctor and dentist for medicaid fraud from the county in which the offenses were completed by virtue of submission of fraudulent claims to state to the counties of defendants’ residence in which offenses were initiated. Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

Discretion as to whether or not to grant a change of venue is great, and will not be lightly disturbed. Bowling v. Commonwealth, 942 S.W.2d 293, 1997 Ky. LEXIS 54 (Ky.), cert. denied, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed. 2d 387, 1997 U.S. LEXIS 6977 (U.S. 1997), overruled in part, McQueen v. Commonwealth, 339 S.W.3d 441, 2011 Ky. LEXIS 75 ( Ky. 2011 ).

11. — Matters Not Considered Abuse.

The court did not abuse its discretion in granting Commonwealth change of venue on ground that it could not obtain fair trial in county by reason of the almost universal relationship of accused to leading families of the county. Smith v. Commonwealth, 108 Ky. 53 , 55 S.W. 718, 21 Ky. L. Rptr. 1470 , 1900 Ky. LEXIS 10 ( Ky. 1900 ).

The court did not abuse its discretion in granting the Commonwealth’s petition for a change of venue in a homicide case, where it alleged that it could not get a fair trial because of the influence of defendant’s friends who had packed the courtroom during defendant’s four former mistrials, and where defendant had made no objection to the petition. Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ).

In prosecution for murder, in very large county, some sections of which were 20 miles or more from county seat, it was not error to refuse change of venue, the evidence being conflicting as to whether defendant could have a fair trial, it not appearing that trial court abused its discretion. Whitson v. Commonwealth, 197 Ky. 745 , 247 S.W. 979, 1923 Ky. LEXIS 712 ( Ky. 1923 ).

Where evidence was conflicting, denial of change of venue was not abuse of discretion. Hopkins v. Commonwealth, 210 Ky. 378 , 275 S.W. 881, 1925 Ky. LEXIS 683 ( Ky. 1925 ).

The trial court did not abuse its discretion in refusing to grant defendant’s motion for a change of venue in burglary prosecution, where the majority of defendant’s supporting affidavits were subscribed to by nonresidents of the county and were opposed by the testimony of residents. Schleeter v. Commonwealth, 218 Ky. 72 , 290 S.W. 1075, 1927 Ky. LEXIS 109 ( Ky. 1927 ).

The trial court did not abuse its discretion in refusing to grant the Commonwealth a change of venue in a prosecution for receiving bank deposits knowing that the bank was insolvent, where the Commonwealth alleged that many of residents of the county were depositors and creditors of the bank and that practically all of the people qualified for jury service had formed an opinion as to the guilt or innocence of the defendant. Commonwealth v. Hargis, 237 Ky. 591 , 36 S.W.2d 8, 1931 Ky. LEXIS 650 ( Ky. 1931 ).

Appellate court will not disturb discretion of trial court upon change of venue unless such discretion is abused to probable detriment of accused. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ). See Sizemore v. Commonwealth, 287 Ky. 631 , 154 S.W.2d 732, 1941 Ky. LEXIS 605 ( Ky. 1941 ).

The trial court did not abuse its discretion in refusing to grant the Commonwealth a change of venue after the first trial in a homicide prosecution ended in a hung jury, even though some difficulty would be experienced in obtaining a jury because of the wide personal acquaintance and influence of the defendant’s family. Commonwealth v. Averitt, 241 S.W.2d 989, 1951 Ky. LEXIS 1032 ( Ky. 1951 ).

There was no abuse of discretion in overruling defendants’ motion for change of venue in homicide case in county with a population around 500,000 and a large reservoir of qualified jurors, even though there had been a great deal of newspaper and radio publicity concerning the crime and the events of the following two (2) or three (3) weeks. Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

The trial judge did not abuse his discretion in refusing to grant change of venue to defendant in rape prosecution, even though defendant contended that he could not get a fair trial because of the publicity given the case by the local press and radio station. Parsley v. Commonwealth, 321 S.W.2d 259, 1958 Ky. LEXIS 18 ( Ky. 1958 ).

The trial court did not abuse its discretion in overruling motion of defendant and codefendant for change of venue on the ground that they could not have a fair and impartial trial because of antagonistic public feeling and opinion. Oldfield v. Commonwealth, 334 S.W.2d 346, 1960 Ky. LEXIS 225 ( Ky. 1960 ).

There was no abuse of discretion in overruling defendant’s motion for change of venue on second trial for malicious shooting and wounding with intent to kill, since allegedly prejudicial publicity was such as is ordinarily reported by the press and radio in such cases. Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

The trial court did not abuse its discretion in overruling defendant’s motion for change of venue, even though he claimed he could not obtain a fair and impartial trial because of the state of public opinion and because of prejudice aroused by newspaper publicity. Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ).

The fact that 49 jurors were exhausted before the jury was filled does not indicate an abuse of discretion on the part of the trial judge in denying defendant a change of venue. Nickell v. Commonwealth, 371 S.W.2d 849, 1963 Ky. LEXIS 113 ( Ky. 1963 ).

The trial judge did not abuse his discretion in refusing defendant a change of venue, where defendant failed to present affidavits sustaining his contention that a fair and unbiased trial could not be had, where witnesses for the Commonwealth testified that a fair trial could be had, where judge deemed widespread publicity concerning the crime as not sufficient to warrant venue change, and where no significance was placed on the fact that defendant was sent to another county jail and refused bail. Nickell v. Commonwealth, 371 S.W.2d 849, 1963 Ky. LEXIS 113 ( Ky. 1963 ).

The trial court’s action in granting the change of venue to adjoining county was not an abuse of discretion, where five (5) witnesses testified at the change of venue hearing as to public opinion about the events in question in the county where the crime was committed. Caudill v. Commonwealth, 723 S.W.2d 881, 1986 Ky. App. LEXIS 1487 (Ky. Ct. App. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764, 1987 U.S. LEXIS 2958 (U.S. 1987).

The trial court did not err in refusing a change of venue even though there was substantial pre-trial publicity involving a prison escape and all 29 potential jurors acknowledged they were aware to some extent of the news media reports. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

12. Selection of County.

It was proper to change the venue of a homicide prosecution to the county seat of a county that was farther from the residence of witnesses than two (2) other counties in the same district, where the county seat of the county chosen was connected by railroad with the residence of the witnesses while the other two (2) counties were not. Tolliver v. Commonwealth, 165 Ky. 312 , 176 S.W. 1190, 1915 Ky. LEXIS 534 ( Ky. 1915 ).

Objection to county to which venue of a homicide prosecution was changed supported by an affidavit alleging that the Commonwealth’s attorney had lately vigorously prosecuted a homicide case in that county and that the people of that county were very much opposed to the crime of homicide did not establish that the defendant could not have a fair trial in that county. Tolliver v. Commonwealth, 165 Ky. 312 , 176 S.W. 1190, 1915 Ky. LEXIS 534 ( Ky. 1915 ).

In determining to which county change of venue should be made, court is not bound by defendant’s affidavits objecting to particular county. Turk v. Commonwealth, 239 Ky. 55 , 38 S.W.2d 937, 1931 Ky. LEXIS 726 ( Ky. 1931 ).

Selection of county to which case shall be sent for trial is discretionary with court. Turk v. Commonwealth, 239 Ky. 55 , 38 S.W.2d 937, 1931 Ky. LEXIS 726 ( Ky. 1931 ).

Where defendants’ petition seeking change of venue to some county other than two (2) named counties failed to allege any condition in one (1) of the counties that would prevent the defendants from obtaining a fair and impartial trial in that county, the court was justified in transferring the case to that county. Neace v. Commonwealth, 240 Ky. 420 , 42 S.W.2d 528, 1931 Ky. LEXIS 416 ( Ky. 1931 ).

Where, in case originating in Wayne County, it appeared from defendant’s motion and from Commonwealth’s attorney’s response that fair trial could not be had in Wayne County or in any adjacent county, it was error for court to transfer case to Fayette County, there being 22 other counties closer to Wayne. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

13. — Adjacent County.

As used in this section the word “adjacent” means a county near or in proximity to and it is not error for the trial judge to order the jury summoned from a county not adjoining, under circumstances which, in the judge’s discretion, would make it impossible to obtain an impartial jury in an adjoining county. Osborne v. Commonwealth, 296 Ky. 587 , 177 S.W.2d 896, 1944 Ky. LEXIS 585 ( Ky. 1944 ).

Where it appears that a fair trial cannot be had in the county or in any of the adjacent or adjoining counties, the case should be transferred to the nearest or most convenient county in which a fair trial can be had. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

14. — Nonadjacent County.

Action of trial court in changing venue to nonadjacent county on oral objections to adjacent counties, without hearing evidence as to whether fair trial could be had in adjacent county was at most erroneous, and not void. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Although petition for change of venue to nonadjacent county was insufficient, and proof was not taken that fair trial could not be had in adjacent county, court of nonadjacent county had jurisdiction to try case, though it did not have venue. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Change of venue can only be sustained to nonadjacent county where objections are sustained to all adjacent counties. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Because it was agreed that defendant would not have received a fair trial in the county in which the alleged crimes were committed, venue was transferred to another county under KRS 452.210 . Furthermore, once a judge from another county was appointed special judge pursuant to SCR 1.040(1), the judge validly obtained jurisdiction over defendant’s case by virtue of the special appointment and did not exceed the bounds of the judge’s territorial jurisdiction by sua sponte transferring the trial to the judge’s home county. Baze v. Commonwealth, 276 S.W.3d 761, 2008 Ky. LEXIS 297 ( Ky. 2008 ).

15. — Valid Objection to Proposed County.

Where court sustained motion of Commonwealth for change of venue of prosecution for murder, the fact that defendant was reared in county to which case was transferred, and was related by blood or marriage to large number of its citizens, constituted valid objection to that county, though court had already sustained a like objection to another county. Smith v. Commonwealth, 108 Ky. 53 , 55 S.W. 718, 21 Ky. L. Rptr. 1470 , 1900 Ky. LEXIS 10 ( Ky. 1900 ).

16. — Timely Objection to Proposed County.

Where change of venue is granted on motion of accused, and he goes into trial without objection to county to which venue is changed, it is too late after verdict to object for first time that county to which venue was changed is not adjacent to that in which indictment was found. Yontz v. Commonwealth, 66 S.W. 383, 23 Ky. L. Rptr. 1868 (1902).

17. Fair Trial.

Under either the due process clause or this section, a change of venue should be granted if it appears that the defendant cannot have a fair trial in the county wherein the prosecution is pending. An examination of the record indicated that, although almost every potential juror had heard or read something about the initial disappearance of the victim or arrest of the defendants, most did not remember details and had not prejudged the case. The trial court allowed the Commonwealth ten (10) peremptories and each defendant 14. There was no showing that the media accounts had pervaded the jurors and prevented defendant from having a fair trial. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Where defendant’s case was transferred, pursuant to KRS 452.210 , to two (2) other counties for failure to seat a jury in the county of indictment, and the judgment rendered in the third county was reversed and remanded to the third county, a motion to change venue back to the county of indictment, pursuant to KRS 452.290 , was barred; KRS 452.290 only applied to a transfer due to a state of lawlessness, pursuant to KRS 452.230 . KRS 452.240 prohibited an additional change of venue. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

18. — Defendant.

Although the reviewing court was restrained from mandating a change in venue, the juror problems resulting from the pretrial publicity illustrated that the trial court could have granted a change of venue. Sluss v. Commonwealth, 450 S.W.3d 279, 2014 Ky. LEXIS 621 ( Ky. 2014 ), overruled in part, Floyd v. Neal, 590 S.W.3d 245, 2019 Ky. LEXIS 538 ( Ky. 2019 ).

This section makes it the duty of the court to order the trial to be had in some other adjacent county to which there is no valid objection, if it appears that the defendant cannot have a fair trial in the county where the prosecution is pending. Greer v. Commonwealth, 111 Ky. 93 , 63 S.W. 443, 23 Ky. L. Rptr. 489 , 1901 Ky. LEXIS 186 ( Ky. 1901 ).

The trial court erred in refusing to grant defendant’s motion for a change of venue in a homicide prosecution where public sentiment was so crystallized against defendant as to create a universal bias and prejudice against him. Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ).

If the entire testimony in the case establishes with reasonable clearness that, because of a prevailing adverse prejudice against defendant, he could not obtain a fair nor an impartial trial in the county where indicted and where the offense was committed, it then becomes the duty of the court to sustain defendant’s motion for a change of venue. Estes v. Commonwealth, 229 Ky. 617 , 17 S.W.2d 757, 1929 Ky. LEXIS 824 ( Ky. 1929 ).

Change of venue to county not within judicial district of Circuit Judge should have been granted in prosecution for perjury allegedly committed in connection with election contest of judge, in view of prominence of judge, who was prosecuting witness, and of activities of sheriff and other county officials seeking to effect conviction of accused and other witnesses who had testified against judge on election contest. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ). See Sizemore v. Commonwealth, 287 Ky. 631 , 154 S.W.2d 732, 1941 Ky. LEXIS 605 ( Ky. 1941 ).

Where it appears that the state of feeling at seat of the court, which would otherwise have jurisdiction, is such as will not afford to defendant the right of trial by an impartial jury, the venue of the trial should be removed to a place where a fair trial may be had upon the determination of a jury whose mind is free of prejudice, not only in respect to the persons charged with the crime, but in respect to the commission of alleged crime in all its aspects. Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

Where trial judge found that defendant could not have a speedy trial by an impartial jury, the defendant was entitled to change of venue and the trial judge should have sustained his motion therefor, instead of ordering a change of venire on his own motion. Keeton v. Commonwealth, 314 S.W.2d 204, 1958 Ky. LEXIS 289 ( Ky. 1958 ).

Evidence that several news articles appeared concerning a trial, including news coverage of an action by a victim which quoted from the complaint, did not establish prejudice requiring a change of venue. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

The mere fact that jurors may have heard, talked, or read about a case is not sufficient to sustain a motion for change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

Upon proper application of a party, the judge shall order a trial to be held in an adjacent county if it appears the defendant cannot have a fair trial in the county where the prosecution is pending; the fact that jurors may have heard about a case is not sufficient to sustain a motion for a change of venue. Brown v. Commonwealth, 890 S.W.2d 286, 1994 Ky. LEXIS 145 ( Ky. 1994 ).

19. — Commonwealth.

The legislature has the power to subject the constitutional right of a defendant to be tried by a jury of the vicinage to a change of venue upon a showing that the Commonwealth cannot secure a fair trial in the county where the offense was committed. Commonwealth v. Hargis, 237 Ky. 591 , 36 S.W.2d 8, 1931 Ky. LEXIS 650 ( Ky. 1931 ).

Granting change of venue in murder case, on application of Commonwealth, was not error, where affidavit of Commonwealth’s attorney, supported by two other affidavits, alleged not only a general state of lawlessness in the county, but that fair trial could not be had because of family connections and official influence of defendants. Hobbs v. Commonwealth, 306 Ky. 66 , 206 S.W.2d 48, 1947 Ky. LEXIS 943 ( Ky. 1947 ).

20. Jury from Another County.

The trial court’s error in overruling defendant’s motion for a change of venue was not cured by ordering a jury from another county. Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ).

The trial court abused its discretion in refusing to grant defendant accused of murdering sheriff a change of venue, and such error was not cured by summoning jury from another county where crowds demanded death penalty, and extra guards were appointed to protect defendant during hearing on motion for change of venue and during the course of the trial. Estes v. Commonwealth, 229 Ky. 617 , 17 S.W.2d 757, 1929 Ky. LEXIS 824 ( Ky. 1929 ).

In prosecution for conspiracy to defraud bank, where defendant’s petition and supporting affidavits for change of venue clearly showed uncontrollable, acrimonious hostility against the defendant on the part of the residents of the county, the mere summoning of a jury from another county did not satisfy this section’s authorization of a change of venue, nor did it afford to the defendant the rights to which he was entitled. Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

While the selection of the jury from another county will not in every case be a sufficient substitute for granting a change of venue because of unusual circumstances, that action is ordinarily sufficient to protect the defendant’s rights, provided that the trial judge shall first make a fair effort in good faith to satisfy himself that it will be impracticable to obtain a jury free from bias in the local county. Patterson v. Commonwealth, 256 Ky. 745 , 77 S.W.2d 14, 1934 Ky. LEXIS 487 ( Ky. 1934 ).

Trial court’s error in not granting defendant change of venue was not cured by summoning jury from another county. Johnson v. Commonwealth, 268 Ky. 555 , 105 S.W.2d 641, 1937 Ky. LEXIS 507 ( Ky. 1937 ).

Where trial court overruled defendant’s motion for change of venue, he did not abuse his discretion in summoning veniremen from another county. Canter v. Commonwealth, 274 Ky. 508 , 119 S.W.2d 864, 1938 Ky. LEXIS 310 ( Ky. 1938 ).

Where the trial judge erred in denying application of defendant for a change of venue, the error was not cured by summoning a jury from another county. Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

21. Evidence.

When objection is made to a county where the court is proposing to transfer a homicide case, the court may hear proof on the question upon the part of both parties, and may act on its own personal knowledge in making the change of venue. Tolliver v. Commonwealth, 165 Ky. 312 , 176 S.W. 1190, 1915 Ky. LEXIS 534 ( Ky. 1915 ).

The trial court erred in refusing to grant a change of venue in homicide prosecution where affidavits and evidence supported motion for such change on ground of local prejudice. Allen v. Commonwealth, 168 Ky. 325 , 182 S.W. 176, 1916 Ky. LEXIS 552 ( Ky. 1916 ).

The trial court erred in granting the prosecution’s motion for change of venue, where the general statement of prejudice prevailing against the prosecution was not rested upon any representation of acquaintance or knowledge of such conditions by the Commonwealth’s attorney pro tem, and where there was no allegation that a threatening letter received by one of Commonwealth’s witnesses was written by or in behalf of the defendants. Giles v. Commonwealth, 266 Ky. 475 , 99 S.W.2d 455, 1936 Ky. LEXIS 691 ( Ky. 1936 ).

Evidence of many witnesses to show that accused could obtain fair jury to try murder charge justified denial of change of venue, notwithstanding accused’s brother expressed opinion that he could not obtain fair jury. Gulley v. Commonwealth, 284 Ky. 98 , 143 S.W.2d 1059, 1940 Ky. LEXIS 451 ( Ky. 1940 ).

Denial of change of venue was not error, where defendant, charged with cutting and wounding, filed affidavits of two (2) citizens that he could not get a fair trial because victim had many relatives in the county, defendant was a stranger in the county, and the case had been widely discussed to his prejudice, but several prominent citizens testified that there was no prejudice and defendant could have a fair trial. Carnes v. Commonwealth, 306 Ky. 55 , 206 S.W.2d 44, 1947 Ky. LEXIS 941 ( Ky. 1947 ).

The fact that the prosecuting witness, in a cutting and wounding case, was a member of the jury panel for the term, did not entitle defendant to a change of venue in the absence of a showing that this fact would influence the jurors selected to try the case. Carnes v. Commonwealth, 306 Ky. 55 , 206 S.W.2d 44, 1947 Ky. LEXIS 941 ( Ky. 1947 ).

When affidavits offered by the defendant as to prejudice against him and the previous conviction of his brother for the same crime were contradicted by seven (7) witnesses for the Commonwealth stating that the defendant would be dealt with in a dispassionate, unbiased manner the record was sufficient to sustain the trial court’s decision refusing the defendant a change of venue. Tinsley v. Commonwealth, 283 S.W.2d 362, 1955 Ky. LEXIS 302 ( Ky. 1955 ).

Of the jurors who actually sat in this case, at least four (4) answered questions acknowledging not only familiarity with the pretrial publicity surrounding the case, but also that they had formed opinions as to the defendant’s guilt; these answers fail to meet the standard for a fair and impartial jury. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

22. — Burden of Proof.

The burden is on applicant to show that fair trial cannot be had in county, the determination of which question is within the trial court’s discretion, and will not be reviewed unless the application and inspection of record leads Court of Appeals to believe that discretion has been abused. McElwain v. Commonwealth, 146 Ky. 104 , 142 S.W. 234, 1912 Ky. LEXIS 30 ( Ky. 1912 ). See Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

Defendant seeking a change of venue must make out at least a prima facie case entitling him to the change, and such burden is not discharged by the mere filing of the prescribed application. Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ).

The burden of proof is on the applicant for a change of venue to show good grounds for such change, but the burden is met when the necessary grounds are set out in the motion and the motion is supported by the requisite affidavits. Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ).

The defendant applying for a change of venue has the burden of proving the ground upon which he relies. Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

When seeking a change of venue, defendant had to show that there had been prejudicial news coverage prior to trial, and that such coverage was reasonably likely to prevent a fair trial. Bowling v. Commonwealth, 942 S.W.2d 293, 1997 Ky. LEXIS 54 (Ky.), cert. denied, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed. 2d 387, 1997 U.S. LEXIS 6977 (U.S. 1997), overruled in part, McQueen v. Commonwealth, 339 S.W.3d 441, 2011 Ky. LEXIS 75 ( Ky. 2011 ).

23. — Uncontradicted Proof.

If accused gives reasonable notice of intended application for change of venue, and files petition and affidavits required by statute, and no further evidence is heard on question, application should be granted. Hunter v. Commonwealth, 208 Ky. 466 , 271 S.W. 559, 1925 Ky. LEXIS 306 ( Ky. 1925 ).

If the grounds stated in the Commonwealth’s petitions for a change of venue made a prima facie case, the court should have granted the motion for a change of venue where the defendant offered no proof. Commonwealth v. Hargis, 237 Ky. 591 , 36 S.W.2d 8, 1931 Ky. LEXIS 650 ( Ky. 1931 ).

Defendant had a right to change of venue upon his petition and supporting affidavits, where the Commonwealth offered no evidence to the contrary. Johnson v. Commonwealth, 268 Ky. 555 , 105 S.W.2d 641, 1937 Ky. LEXIS 507 ( Ky. 1937 ).

Generally the burden is upon the defendant in a motion for change of venue made by him to make a prima facie case entitling him to the relief sought, which is a matter in the discretion of the trial judge, except where the proof presented by the defendant is adequate under KRS 452.220 and is uncontradicted at the hearing by proof on behalf of the Commonwealth, in which case the trial judge must grant the defendant’s motion. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

Where defendant presented uncontradicted proof in support of his motion for change of venue, and was confined in state penitentiary under KRS 441.540 permitting a person to be removed from the county jail to the penitentiary for safekeeping, the trial court erred in refusing to grant a change of venue. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

24. Appeal.

Where no objection was made or exception taken to change of venue granted to the Commonwealth in a homicide prosecution until the motion for a new trial, the Court of Appeals reviewed the case nonetheless in view of the right to a trial by jury guaranteed by Const., § 7. Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ).

Ordinarily, discretion of Circuit Judge in ruling on motion for change of venue, or to vacate bench, will not be interfered with by Court of Appeals in original proceeding for writ of prohibition under Const., § 110, since litigant would ordinarily have adequate remedy by appeal. Allen v. Bach, 233 Ky. 501 , 26 S.W.2d 43, 1930 Ky. LEXIS 601 ( Ky. 1930 ).

Where demurrer to the Commonwealth’s petitions for a change of venue was sustained, the Court of Appeals accepted as true the allegations of the petitions. Commonwealth v. Hargis, 237 Ky. 591 , 36 S.W.2d 8, 1931 Ky. LEXIS 650 ( Ky. 1931 ).

Court of Appeals will not issue writ of prohibition to restrain court of county to which venue of criminal case has been changed from trying case, even though petition for change was insufficient and county to which venue was changed was not an adjacent county. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Right of appeal from erroneous order changing venue to nonadjacent county furnishes adequate remedy at law, preventing issue of writ of prohibition. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

25. Convenience of Parties.

The Rules of Criminal Procedure give a mechanism to a defendant to change venue if it appears that the offense was committed in a county other than the one in which the indictment was returned. Rule 8.26 and this section allow a change of venue if either the defendant or the Commonwealth cannot obtain a fair trial in the county where the indictment was returned. None of these provisions allow a Circuit Court Judge to change venue as a matter of convenience or to try a defendant outside of the county in which the crime was committed. Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 1996 Ky. App. LEXIS 100 (Ky. Ct. App. 1996).

Venue relates to the forum that will hear the particular action. Venue in criminal prosecutions may be changed if it appears that the accused may not receive a fair and impartial trial in the county where the crime was committed but there is no authority to change venue based upon the convenience of the parties. Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 1996 Ky. App. LEXIS 100 (Ky. Ct. App. 1996).

Cited:

Commonwealth ex rel. Attorney Gen. v. Carnes, 125 Ky. 821 , 31 Ky. L. Rptr. 391 , 31 Ky. L. Rptr. 464 , 102 S.W. 284, 1907 Ky. LEXIS 330 ( Ky. 1907 ); Blanton v. Commonwealth, 210 Ky. 542 , 276 S.W. 507, 1925 Ky. LEXIS 725 ( Ky. 1925 ); Armstrong v. Commonwealth, 228 Ky. 561 , 15 S.W.2d 440, 1929 Ky. LEXIS 598 ( Ky. 1929 ); Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ); Cooper v. Commonwealth, 300 Ky. 770 , 189 S.W.2d 949, 1945 Ky. LEXIS 612 ( Ky. 1945 ); Warner v. Commonwealth, 385 S.W.2d 62, 1964 Ky. LEXIS 116 ( Ky. 1964 ); Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ); Dunn v. Commonwealth, 360 S.W.3d 751, 2012 Ky. LEXIS 8 ( Ky. 2012 ).

Research References and Practice Aids

Kentucky Law Journal.

Fuller, Change of Venue and Venire in Kentucky, 47 Ky. L.J. 495 (1959).

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

Caldwell’s Kentucky Form Book, Petition for Change of Venue — Criminal, Form 38.04.

452.220. Application by state or defendant, how made and determined.

  1. If the application for change of venue is made by the state, a petition stating the reasons therefor and signed by the Commonwealth’s attorney shall be filed in court. Reasonable notice of the time when the application will be made shall be given in writing to the defendant or, if he is absent from the county, to his attorney.
  2. If the application is made by the defendant, it shall be made by petition in writing, verified by the defendant, and by the filing of the affidavits of at least two (2) other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true. The Commonwealth’s attorney or, in his absence from the county, the county attorney shall be given reasonable notice, in writing, of the application. If objections to all the adjoining counties are made and sustained, the change shall be made to the nearest county to which there is no valid objection, preference being given to counties of the same judicial circuit.
  3. Applications under this section shall be made and determined in open court, and the court shall hear all witnesses produced by either party and determine from the evidence whether the defendant is entitled to a change of venue.

History. 1110, 1111: amend. Acts 1976, ch. 62, § 130; 1976 (Ex. Sess.), ch. 14, § 466, effective January 2, 1978.

NOTES TO DECISIONS

1. Constitutionality.

The fact that this section does not require the trial court to attempt to secure a jury to try the defendant before granting the Commonwealth’s motion for a change of venue does not violate the defendant’s right under Const., § 11. Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1910 ).

Change of venue on application of Commonwealth under this section is not a violation of the Const., § 11 guarantee of the right to speedy trial by impartial jury of vicinage. Commonwealth v. Caldwell, 236 Ky. 349 , 33 S.W.2d 1, 1930 Ky. LEXIS 737 ( Ky. 1930 ).

2. Construction.

The provisions of this section are mandatory. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

The venue of actions is fixed by law and cannot be changed except upon proper showing and in strict conformity with the provisions of the statute. Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

3. Application.

Where an affidavit to require the judge to vacate stated only that the judge is a cousin of the principal prosecuting witness, and had ordered defendant held without bond upon being returned as a fugitive from justice (although a subsequent order fixed a reasonable bond), such affidavit was insufficient to show prejudice requiring a change of judge, and it did not militate against defendant’s petition for a change of venue. Benge v. Commonwealth, 296 Ky. 82 , 176 S.W.2d 131, 1943 Ky. LEXIS 108 ( Ky. 1943 ).

Application for change of venue in criminal case was not defective by reason of not being denominated a petition. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Trial court did not act arbitrarily in refusing last-minute request for a continuance so that petition for change of venue and supporting affidavits might be amended, since it does not appear that the attorneys who represented the defendant were unaware of the requirements of this section or that they had insufficient time in which to prepare and submit proper affidavits, and where there were no mitigating circumstances. Wade v. Commonwealth, 334 S.W.2d 901, 1958 Ky. LEXIS 2 ( Ky. 1958 ), cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 71, 1960 U.S. LEXIS 680 (U.S. 1960).

An application under this section was not ineffective because it was not denominated a petition. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

Application for change of venue and supporting documents must be addressed to the conditions existing at or near the time of trial, so that an application made by defendant on December 9, 1963, did not present the state of public opinion on June 24, 1964, and the court was correct in denying it. Howard v. Commonwealth, 395 S.W.2d 355, 1965 Ky. LEXIS 139 ( Ky. 1965 ), cert. denied, 384 U.S. 995, 86 S. Ct. 1905, 16 L. Ed. 2d 1012, 1966 U.S. LEXIS 1147 (U.S. 1966).

Defendant filing an unverified petition for change of venue on the date trial was set was not entitled to a change of venue, since statutory requirements were not met. Bryant v. Commonwealth, 467 S.W.2d 351, 1971 Ky. LEXIS 369 ( Ky. 1971 ).

A motion for change of venue under subsection (2) of this section was properly denied where there was no written petition with verification by the defendant, no supporting affidavits by two (2) (or any) other credible persons, and the accused did not present a basis for such a change. Murray v. Commonwealth, 473 S.W.2d 150, 1971 Ky. LEXIS 157 ( Ky. 1971 ).

4. Standard.

In determining whether a change of venue should be granted under this section it was proper to consider the “considerable probability” of the accused being unable to obtain a fair and impartial trial rather than the “reasonable likelihood” that in the absence of such relief a fair trial cannot be had. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

5. Sufficient Notice.

If defendant gives reasonable notice of intended application for change of venue, and tenders required petition and affidavits, refusal to permit petition and affidavits to be filed is reversible error. Greer v. Commonwealth, 111 Ky. 93 , 63 S.W. 443, 23 Ky. L. Rptr. 489 , 1901 Ky. LEXIS 186 ( Ky. 1901 ).

Three (3) days’ notice of intended application for change of venue was sufficient; but even if not, the fact that a longer notice was not given did not authorize court to refuse to permit filing of petition and affidavits when tendered, as court could, in its discretion, have granted Commonwealth time to procure the attendance of witnesses on the motion for change of venue. Greer v. Commonwealth, 111 Ky. 93 , 63 S.W. 443, 23 Ky. L. Rptr. 489 , 1901 Ky. LEXIS 186 ( Ky. 1901 ).

The notice must fix the date when application is to be made. Sullivan v. Commonwealth, 169 Ky. 797 , 185 S.W. 134, 1916 Ky. LEXIS 772 ( Ky. 1916 ).

Failure to file petition and motion for change of venue on date specified in notice made new notice requisite before motion could be filed at later date. Haywood v. Commonwealth, 221 Ky. 378 , 298 S.W. 985, 1927 Ky. LEXIS 732 ( Ky. 1927 ).

6. — Notice to Commonwealth’s Attorney.

An application for change of venue cannot be considered where there has been no notice to Commonwealth’s attorney, and no waiver of notice by him, the mere fact that he is present when the application is made not being sufficient to dispense with notice. Bishop v. Commonwealth, 109 Ky. 558 , 60 S.W. 190, 22 Ky. L. Rptr. 1161 , 1901 Ky. LEXIS 16 ( Ky. 1901 ).

If notice of application is not given to Commonwealth’s attorney or county attorney, or such notice is not waived, the application will not be considered. Sullivan v. Commonwealth, 169 Ky. 797 , 185 S.W. 134, 1916 Ky. LEXIS 772 ( Ky. 1916 ).

Refusal to permit petition for change of venue to be filed was proper, where there was no valid notice to, nor waiver, by Commonwealth’s attorney. Haywood v. Commonwealth, 221 Ky. 378 , 298 S.W. 985, 1927 Ky. LEXIS 732 ( Ky. 1927 ).

Since verified petition and affidavits make out prima facie case for change of venue, Commonwealth must have reasonable notice to enable it to combat prima facie case. Shelton v. Commonwealth, 280 Ky. 733 , 134 S.W.2d 653, 1939 Ky. LEXIS 215 ( Ky. 1939 ).

Where petition and affidavits for change of venue were not filed until morning of day set for trial, and no notice was given to Commonwealth’s or county attorney of application for change of venue, trial court properly denied change of venue. Shelton v. Commonwealth, 280 Ky. 733 , 134 S.W.2d 653, 1939 Ky. LEXIS 215 ( Ky. 1939 ).

Where there was no claim that prejudicial conditions in county were of recent origin or recent discovery, failure to give reasonable notice required by this section was not excusable. Russell v. Commonwealth, 405 S.W.2d 683, 1966 Ky. LEXIS 261 ( Ky. 1966 ).

Trial court did not abuse its discretion in overruling motion for change of venue where state did not receive reasonable notice in writing of application for change of venue. Geary v. Commonwealth, 503 S.W.2d 505, 1972 Ky. LEXIS 9 ( Ky. 1972 ).

Where the petition for change of venue showed no prior notice of the application to the prosecutor, and that it was filed on the opening day of trial and since far in excess of four (4) months expired between the offense and the trial, the filing was unreasonable and it was properly overruled. McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979).

7. — Notice Not Necessary.

When change of venue is granted on court’s personal knowledge and written statement of Commonwealth’s attorney under KRS 452.230 , defendant need not be served with notice as required for an application for such change under this section. Blanton v. Commonwealth, 210 Ky. 542 , 276 S.W. 507, 1925 Ky. LEXIS 725 ( Ky. 1925 ).

8. Insufficient Notice.
9. — Timely Objection.

An assignment of error that a criminal prosecution was transferred to another county without notice to defendants’ counsel, is unavailable, where neither bill of exceptions nor record showed that objection was made for that reason, or that counsel asked court to pass the motion and give him an opportunity to prepare therefor. Turner v. Commonwealth, 89 S.W. 482, 28 Ky. L. Rptr. 487 (1905).

10. Verification of Petition.

Where criminal case defendant was confined without county, petition for change of venue could be verified by his attorney. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Counsel for defendant may verify defendant’s petition for change of venue where defendant is confined outside the county where the motion is heard. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

11. Sufficient Affidavits Necessary.

Where no request is made of the court, upon application for change of venue, to compel any person to testify as to state of the public mind, the affidavits required by this section cannot be dispensed with, upon affidavit of counsel that prejudice against accused is so great that the required affidavits cannot be obtained because good citizens, though expressing the belief that accused cannot have fair trial, refuse to make affidavit, on ground that it would injure them to do so. Blanks v. Commonwealth, 105 Ky. 41 , 48 S.W. 161, 20 Ky. L. Rptr. 1037 , 1898 Ky. LEXIS 242 ( Ky. 1898 ).

Trial court properly denied application for change of venue, where because of fear no one was willing to sign the supporting affidavits. Fitzgerald v. Commonwealth, 98 S.W. 319, 30 Ky. L. Rptr. 349 , 1906 Ky. LEXIS 302 (Kan. Ct. App. 1906).

An application for change of venue, unaccompanied by the affidavits of any creditable person, was properly denied. Penman v. Commonwealth, 141 Ky. 660 , 133 S.W. 540, 1911 Ky. LEXIS 45 ( Ky. 1911 ).

The court is without authority to grant a change of venue without the required affidavits. Miller v. Commonwealth, 175 Ky. 241 , 194 S.W. 320, 1917 Ky. LEXIS 315 ( Ky. 1917 ). See Taylor v. Commonwealth, 240 Ky. 450 , 42 S.W.2d 689, 1931 Ky. LEXIS 424 ( Ky. 1931 ).

Trial court properly denied defendant’s motion for change of venue, where affidavits required by this section did not state that affiants were acquainted with the state of public opinion in the county. Hunter v. Commonwealth, 208 Ky. 466 , 271 S.W. 559, 1925 Ky. LEXIS 306 ( Ky. 1925 ).

Affidavit in support of motion for continuance of criminal case, which included allegations of local prejudice and other facts purporting to show that defendant could not get a fair trial in the county, did not constitute an application for a change of venue, and defendant could not complain on appeal of failure of lower court to change venue. Lusk v. Commonwealth, 291 Ky. 339 , 164 S.W.2d 389, 1942 Ky. LEXIS 222 ( Ky. 1942 ).

Affidavits which were offered in support of motion to change venue in criminal case and which stated that affiants were acquainted with state of public opinion and believed that defendant could not have a fair trial in the county substantially complied with statutory requirements, although they did not state that affiants verily believed the statements to be true. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Where affidavits filed in support of petition for change of venue did not state that affiants were acquainted with the state of public opinion in county, or that they verily believed the statements of the petition as required by this section, the lower court did not err in refusing to grant a change of venue. Wade v. Commonwealth, 334 S.W.2d 901, 1958 Ky. LEXIS 2 ( Ky. 1958 ), cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 71, 1960 U.S. LEXIS 680 (U.S. 1960).

Affidavits filed in support of defendant’s petition for a change of venue complied with this section’s requirements, even though they did not contain a statement that the affiant verily believed the statements in the petition to be true, since each affiant stated that he was acquainted with the state of public opinion in the county and that he believed that the defendant could not obtain a fair and impartial trial in the county. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

Where motion for change of venue was neither verified nor supported by affidavits, it was properly overruled. White v. Commonwealth, 394 S.W.2d 770, 1965 Ky. LEXIS 208 ( Ky. 1965 ).

The trial court properly denied defendant’s motion for change of venue where the petition was utterly insufficient to require or justify such change, and where the supporting affidavits stated only conclusions in referring to unfavorable news media but did not state any facts in connection therewith. Stone v. Commonwealth, 418 S.W.2d 646, 1967 Ky. LEXIS 220 ( Ky. 1967 ), cert. denied, 390 U.S. 1010, 88 S. Ct. 1259, 20 L. Ed. 2d 161, 1968 U.S. LEXIS 2015 (U.S. 1968).

Requirements that motion for change of venue be written and supported by two (2) affidavits is mandatory and trial court which denied motion violating requirement was not shown to have abused its discretion where appellate record contained neither motion nor affidavits and neither were referred to by counsel. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where the affiants stated that they agreed with appellant’s allegations, but gave no relevant evidence supporting that position, the trial court correctly found that the affidavits supporting defendant’s application for change of venue contained insufficient evidence to sustain the motion. Elswick v. Commonwealth, 574 S.W.2d 916, 1978 Ky. App. LEXIS 636 (Ky. Ct. App. 1978).

The requirement of this section that affidavits in support to change of venue motion follow the requirement of including the statement whereby the affiant verily believed the statements of the petition for the change of venue were true is mandatory. Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

12. — Contents.

Affidavits reciting that the complainant had recently been overwhelmingly reelected as county judge/executive and that any jury panel drawn from that county would tend to believe him simply because of his position did not comply with requirement that those executing affidavits be acquainted with the state of public opinion in the county and petition for change of venue was properly overruled. McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979).

13. Hearing in Open Court.

Until this section is superseded by the Supreme Court, under the Court’s paramount rule-making authority, it stands as enacted by the General Assembly under principles of comity, and under the statute’s clear and unambiguous terms, a hearing in open court is required. O'Bryan v. Commonwealth, 634 S.W.2d 153, 1982 Ky. LEXIS 254 ( Ky. 1982 ).

Under this section’s clear and unambiguous terms, a hearing in open court is required on motion for change of venue when the Commonwealth does not file counteraffidavits in opposition to a change of venue application. Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ), overruling to the extent of conflict, Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ), overruled in part, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 (Ky. 1991) and Brunner v. Commonwealth, 395 S.W.2d 382, 1965 Ky. LEXIS 145 ( Ky. 1965 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 (Ky. 1991).

14. Timely Motion Required.

Where defendant in murder prosecution had not asked for change of venue, after trial and conviction he could not for the first time claim that because he could not get a fair trial a change of venue should have been ordered. Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

The trial court did not err in denying homicide defendant’s petition for change of venue due to lack of reasonable notice where defendant filed his petition two (2) days before trial and where defendant was well aware of the pre-trial publicity and the feelings of the community about the case. Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

15. Selection of County.

Where, in case originating in Wayne County, it appeared from defendant’s motion and from Commonwealth’s attorney’s response that fair trial could not be had in Wayne County or in any adjacent county, it was error for court to transfer case to Fayette County, there being 22 other counties closer to Wayne. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

Where it appears that a fair trial cannot be had in the county or in any of the adjacent or adjoining counties, the case should be transferred to the nearest or most convenient county in which a fair trial can be had. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

16. — Nonadjoining County.

The trial court erred in directing a change of venue to county not adjoining county in which defendant was indicted, where there were no objections to the adjoining counties. Conley v. Commonwealth, 229 Ky. 358 , 17 S.W.2d 201, 1929 Ky. LEXIS 743 ( Ky. 1929 ).

17. Jurisdiction After Change.

Where defendant did not contend that court to which venue was changed did not have jurisdiction until appeal, and in the absence of a showing that the orders of change of venue were not properly made, the Court of Appeals concluded that all the steps required to effect a change of venue were taken, with the result that the trial court did have jurisdiction. Steepe v. Commonwealth, 259 Ky. 585 , 82 S.W.2d 816, 1935 Ky. LEXIS 355 ( Ky. 1935 ).

Fact that petition by Commonwealth for change of venue was insufficient would not render order for change of venue void, but merely erroneous, and would not deprive court to whom venue was changed of jurisdiction to try case. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

18. Commonwealth Entitled to Change.

The trial court properly granted Commonwealth a change of venue, where defendant was a leader of vigilante band that had terrorized the community and had attempted to intimidate the grand jury. Jenkins v. Commonwealth, 167 Ky. 544 , 180 S.W. 961, 1915 Ky. LEXIS 877 ( Ky. 1915 ).

19. Defendant Entitled To Change.

The trial court erred in overruling defendant’s motion for change of venue in murder prosecution, where the evidence established that the defendant could not have a fair and impartial trial at the time the application was made. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

20. Discretion of Trial Court.

Where accused set up that he had opposed the successful candidates for certain county offices and thereby incurred their enmity, but all the officers in question testified that they did not know how accused voted, and did not intend to prosecute him, it was not abuse of discretion to deny change of venue. Bohannan v. Commonwealth, 72 S.W. 322, 24 Ky. L. Rptr. 1814 , 1903 Ky. LEXIS 431 (Ky. Ct. App. 1903).

The granting of a change of venue is entirely within the sound discretion of the court and unless it appears that this discretion was abused to the substantial prejudice of the accused, it will not constitute reversible error. Penman v. Commonwealth, 141 Ky. 660 , 133 S.W. 540, 1911 Ky. LEXIS 45 ( Ky. 1 911). See Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1 910 ); Lawler v. Commonwealth, 182 Ky. 185 , 206 S.W. 306, 1918 Ky. LEXIS 349 ( Ky. 1918 ); Hutsell v. Commonwealth, 225 Ky. 492 , 9 S.W.2d 132, 1928 Ky. LEXIS 802 ( Ky. 1928 ); Hill v. Commonwealth, 232 Ky. 453 , 23 S.W.2d 930, 1930 Ky. LEXIS 23 ( Ky. 1930 ); Commonwealth v. Caldwell, 236 Ky. 349 , 33 S.W.2d 1, 1930 Ky. LEXIS 737 ( Ky. 1930 ); Holmes v. Commonwealth, 241 Ky. 573 , 44 S.W.2d 592, 1931 Ky. LEXIS 143 ( Ky. 1931 ); Carsons v. Commonwealth, 243 Ky. 1, 47 S.W.2d 997, 1931 Ky. LEXIS 706 ( Ky. 1931 ); McDaniel v. Commonwealth, 246 Ky. 688 , 56 S.W.2d 340, 1933 Ky. LEXIS 18 ( Ky. 1933 ).

Where two (2) witnesses testified that they believed that accused could have a fair trial, and they were introduced by accused, the denial of change of venue was within court’s discretion. Penman v. Commonwealth, 141 Ky. 660 , 133 S.W. 540, 1911 Ky. LEXIS 45 ( Ky. 1911 ).

Court denying change of venue to defendant in murder prosecution did not abuse its discretion, where, out of 12 or more witnesses testifying, only two (2) or three (3) testified defendant would not secure fair trial. Hutsell v. Commonwealth, 225 Ky. 492 , 9 S.W.2d 132, 1928 Ky. LEXIS 802 ( Ky. 1928 ).

Trial court did not abuse discretion in denying defendant’s motion for change of venue, since mere filing of motion, accompanied by supporting affidavits, does not require court to grant change, where only affidavits to support motion were those of defendant and two (2) others who merely stated that they believed what was said in defendant’s affidavit. Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942).

Where trial judge, in denying motion for change of venue, summoned jury from adjoining county, such action was not evidence that the judge acted arbitrarily in denying motion for change. Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942).

A defendant seeking a change of venue has the burden of proving grounds and where there is evidence heard in support and resistance, the granting or refusing of a change of venue is within the broad discretion of the trial court and it is only when that discretion is abused that the Court of Appeals will order a reversal. Benge v. Commonwealth, 296 Ky. 82 , 176 S.W.2d 131, 1943 Ky. LEXIS 108 ( Ky. 1943 ).

It was not error for court to refuse to grant a continuance so that petition for change of venue and supporting affidavits might be amended even though the affiants were present in the courtroom at the time, since it did not appear that the defendant’s attorneys were unaware of the statutory requirements for change of venue or that they had insufficient time in which to prepare proper affidavits before the time set for trial. Wade v. Commonwealth, 334 S.W.2d 901, 1958 Ky. LEXIS 2 ( Ky. 1958 ), cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 71, 1960 U.S. LEXIS 680 (U.S. 1960).

The question of whether venue should be changed addresses itself to the sound discretion of the trial court. Hurley v. Commonwealth, 451 S.W.2d 838, 1970 Ky. LEXIS 423 ( Ky. 1970 ).

Where no complaint was made that an impartial jury was not impaneled and the record gave no indication that the trial court abused its discretion in refusing to grant a change of venue, there was no error in the failure to do so. Hurley v. Commonwealth, 451 S.W.2d 838, 1970 Ky. LEXIS 423 ( Ky. 1970 ).

Where none of the affidavits supporting the motion for a change of venue alleged that the affiants were acquainted with the state of public opinion in the county in which they were to be tried, the trial court did not abuse its discretion in denying the motion. Lenston v. Commonwealth, 497 S.W.2d 561, 1973 Ky. LEXIS 355 (Ky.), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

A change of venue should be granted only in those cases where the trial court reaches a conclusion, based on the affidavits and the evidence presented at a pretrial hearing, that it is relatively impossible to impanel a jury that has not preconceived an opinion as to appellant’s guilt because of pretrial publicity. Elswick v. Commonwealth, 574 S.W.2d 916, 1978 Ky. App. LEXIS 636 (Ky. Ct. App. 1978).

21. Evidence.

There was no error in refusing a continuance to give defendant further time in which to procure the required affidavits, when there was nothing in his affidavit or in the record to show that he could have produced a single witness or any testimony other or different from that offered at trial. Graham v. Commonwealth, 164 Ky. 317 , 175 S.W. 981, 1915 Ky. LEXIS 395 ( Ky. 1915 ).

Trial court did not err in refusing defendant a change of venue, where defendant’s affidavits alleged that friends and relatives of the deceased had threatened to lynch defendant, since such allegation was denied by the Commonwealth’s attorneys even though not sworn to, and because no particular friend or relative of the deceased was named as having made the threat which made it impossible for the Commonwealth to meet such a general charge. Griffin v. Commonwealth, 204 Ky. 783 , 265 S.W. 327, 1924 Ky. LEXIS 580 ( Ky. 1924 ).

Newspaper articles alone are not sufficient to show condition of public sentiment preventing fair trial. Holmes v. Commonwealth, 241 Ky. 573 , 44 S.W.2d 592, 1931 Ky. LEXIS 143 ( Ky. 1 931). See Carsons v. Commonwealth, 243 Ky. 1 , 47 S.W.2d 997, 1931 Ky. LEXIS 706 ( Ky. 1931 ).

Where defendant showed there was a violent feud raging in the county, and where there was testimony that a year before on a similar charge against defendant, the then Commonwealth attorney and defense attorney had been granted a change of venue by the then presiding judge and the judge was then so intimidated he was prevented from entering the order for the change, it was readily shown that the same parties who had prevented the prior change would be able to bring great influence on the jury in the present case and the change should have been granted. Benge v. Commonwealth, 296 Ky. 82 , 176 S.W.2d 131, 1943 Ky. LEXIS 108 ( Ky. 1943 ).

Newspaper articles may be used to supplement proof to sustain a motion for change of venue in a criminal case, but there must be evidence other than, and independent of, the articles showing condition of public sentiment. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

The trial court erred in overruling motion of defendant in murder case to consider the record of evidence heard on motion for change of venue in trial of one of defendant’s companions in considering defendant’s motion for change of venue on ground that he could not secure a fair trial. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Newspaper articles may be used to supplement the proof required under this section to sustain the motion for a change of venue but there must be evidence other than, and independent of, the articles showing the condition of public sentiment in the county to justify granting the change. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

Where on a hearing on a motion for a change of venue the defendant introduced numerous articles from local newspapers and showed there had been a great deal of radio and television publicity, such was competent evidence. Hurley v. Commonwealth, 451 S.W.2d 838, 1970 Ky. LEXIS 423 ( Ky. 1970 ).

It is not uncommon that if a panel of veniremen is exhausted that other potential panel members be called; accordingly, when it appears that one list of names drawn for jury duty may be insufficient it does not in and of itself reflect the state of public opinion in the entire county. McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979).

22. — Prima Facie Case.

Where, on application of defendant for change of venue, petition and affidavits complied with statute and established prima facie case, it was the duty of the court, in absence of other evidence, to grant the change. Shipp v. Commonwealth, 124 Ky. 643 , 99 S.W. 945, 30 Ky. L. Rptr. 904 , 1907 Ky. LEXIS 228 ( Ky. 1907 ).

Defendant, having filed the required affidavits in support of application for change of venue, thereby made out prima facie case. Hill v. Commonwealth, 232 Ky. 453 , 23 S.W.2d 930, 1930 Ky. LEXIS 23 ( Ky. 1930 ).

Where Commonwealth introduced three witnesses, two of which testified that Commonwealth could not get fair trial in that county, while other witness was not sure, prima facie case for change of venue was established. Commonwealth v. Caldwell, 236 Ky. 349 , 33 S.W.2d 1, 1930 Ky. LEXIS 737 ( Ky. 1930 ).

23. — Burden of Proof.

The burden is on the applicant for a change of venue to show that he cannot reasonably obtain a fair trial in the county where the offense occurred. Hutsell v. Commonwealth, 225 Ky. 492 , 9 S.W.2d 132, 1928 Ky. LEXIS 802 ( Ky. 1928 ).

If the Commonwealth files an answer to petition for change of venue controverting the facts alleged in the petition, the burden of proof is not shifted from the defendant because the burden has already been met by defendant when he filed his petition supported by the required affidavits. Hill v. Commonwealth, 232 Ky. 453 , 23 S.W.2d 930, 1930 Ky. LEXIS 23 ( Ky. 1930 ).

24. — Uncontradicted Proof.

The trial court erred in denying defendant’s motion for change of venue, where defendant alleged uncontradicted facts showing that state of feeling existed in county which would prevent defendant from obtaining a fair trial. Hall v. Commonwealth, 253 Ky. 148 , 69 S.W.2d 3, 1934 Ky. LEXIS 619 ( Ky. 1934 ).

Generally, defendant in a criminal case has burden to make prima facie case for change of venue, except where proof presented is adequate under statute relating to change of venue and is uncontradicted by proof on behalf of Commonwealth, in which case trial judge has no discretion but to grant motion. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Where defendant presented uncontradicted proof satisfying statute relating to change of venue, and was confined in state penitentiary under statute permitting a person to be removed from a county for safekeeping, trial court erred in denying change. Nantz v. Commonwealth, 243 S.W.2d 1007, 1951 Ky. LEXIS 1196 ( Ky. 1951 ).

Where the proof presented by defendant on motion for a change of venue is adequate under this section and is uncontradicted at the hearing by proof on behalf of the Commonwealth, the trial judge has no discretion in the matter but must grant the defendant a change of venue. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

25. Appeal.

The fact that judge, in absence of introduction of witnesses, changed the place of a murder trial to county objected to by attorney for Commonwealth, presented nothing for appellate court to review. Ag'l v. Carnes, 125 Ky. 821 , 102 S.W. 284, 31 Ky. L. Rptr. 391 , 31 Ky. L. Rptr. 464 , 1907 Ky. LEXIS 330 (Ky. Ct. App. 1907).

Prohibition will not lie to prevent trial judge from changing venue of criminal case on application of the state, defendant having an adequate remedy by appeal. Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1910 ).

26. Effect of Media Reports.

The denial of defendant’s motion for change of venue was proper, where the news accounts did not reveal the evidence against defendant and primarily dealt with the various steps which were routinely taken in bringing his case to trial, where several of the news accounts stated that defendant had been charged with other crimes and asserted that he was linked in some way with a criminal ring, but the stories were written as factual presentations without sensationalism, and where defendant produced no evidence that the community was saturated with hostile and inflammatory media reports which made it impossible for him to receive a fair trial. Jenkins v. Bordenkircher, 611 F.2d 162, 1979 U.S. App. LEXIS 9545 (6th Cir. Ky. 1979 ), cert. denied, 446 U.S. 943, 100 S. Ct. 2169, 64 L. Ed. 2d 798, 1980 U.S. LEXIS 1649 (U.S. 1980).

Cited:

Browder v. Commonwealth, 136 Ky. 45 , 123 S.W. 328, 1909 Ky. LEXIS 456 ( Ky. 1909 ); Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ); Armstrong v. Commonwealth, 228 Ky. 561 , 15 S.W.2d 440, 1929 Ky. LEXIS 5 98 ( Ky. 1929 ); Miller v. Commonwealth, 248 Ky. 717 , 59 S.W.2d 969, 1933 Ky. LEXIS 298 ( Ky. 1933 ); Miller v. Commonwealth, 248 Ky. 726 , 59 S.W.2d 973, 1933 Ky. LEXIS 299 ( Ky. 1933 ); Giles v. Commonwealth, 266 Ky. 475 , 99 S.W.2d 455, 1936 Ky. LEXIS 691 ( Ky. 1936 ); Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ); Cooper v. Commonwealth, 300 Ky. 770 , 189 S.W.2d 949, 1945 Ky. LEXIS 612 ( Ky. 1945 ); Commonwealth v. Pratt, 240 S.W.2d 635, 1951 Ky. LEXIS 1013 ( Ky. 1951 ); Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ); Yager v. Commonwealth, 407 S.W.2d 413, 1966 Ky. LEXIS 162 ( Ky. 1966 ); Leigh v. Commonwealth, 481 S.W.2d 75, 1972 Ky. LEXIS 225 ( Ky. 1972 ); Bell v. Commonwealth, 684 S.W.2d 282, 1984 Ky. App. LEXIS 603 (Ky. Ct. App. 1984); Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ); Lewis v. Commonwealth, 42 S.W.3d 605, 2001 Ky. LEXIS 64 ( Ky. 2001 ).

Research References and Practice Aids

Kentucky Law Journal.

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, Notice of Application for Change of Venue — Criminal, Form 38.03.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Change of Venue — Criminal, Form 38.04.

452.230. Removal from county in state of lawlessness.

  1. Whenever any Circuit Judge is satisfied from his own knowledge and from the written statement of the Commonwealth’s attorney of that judicial circuit that such a state of lawlessness exists in any county of his judicial circuit or that such a high state of excitement or feeling of prejudice exists therein against the defendant that there is apparent danger of mob violence in which loss of life or destruction of property may occur unlawfully, and that a trial in the county cannot be fairly and impartially had, or that the officers of the court may be prevented from discharging their duty or the jurors intimidated or deterred from fairly and impartially rendering a verdict in the case, he may order the action removed to some other county in which a fair trial can be had. The fiscal court of the county from which the removal is made shall pay out of the county treasury the costs of the removal.
  2. A change of venue also may be had on motion of the defendant when the facts exist as set out in subsection (1). The motion may be made by counsel, and the presence of the defendant in court shall be deemed to be waived upon the filing of the written statement of his counsel as set forth in subsection (1) and the affidavit of the defendant, which affidavit shall state that the defendant is in danger of mob violence in the county and for that reason desires a change of venue to some other county, and that he thereby waives his presence on the hearing of the motion for a change of venue.

History. 1112: amend. Acts 1976, ch. 62, § 131.

NOTES TO DECISIONS

1. In General.

An order granting a change of venue under this section is valid until set aside by the court making the order or held invalid on proper appeal. Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ).

2. Applicability.

Where defendant’s case was transferred, pursuant to KRS 452.210 , to two (2) other counties for failure to seat a jury in the county of indictment, and the judgment rendered in the third county was reversed and remanded to the third county, a motion to change venue back to the county of indictment, pursuant to KRS 452.290 , was barred; KRS 452.290 only applied to a transfer due to a state of lawlessness, pursuant to KRS 452.230 . KRS 452.240 prohibited an additional change of venue. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

3. Proof of State of Lawlessness.

Where written statement of Commonwealth’s attorney that lawlessness existed in the county was filed as ground for change of venue, which fact was personally known to judge, no further proof was required and Commonwealth’s attorney would not be allowed thereafter to withdraw such statement. Ag'l v. Carnes, 125 Ky. 821 , 102 S.W. 284, 31 Ky. L. Rptr. 391 , 31 Ky. L. Rptr. 464 , 1907 Ky. LEXIS 330 (Ky. Ct. App. 1907).

While, in criminal prosecution against several defendants, written statement for change of venue was filed, which in terms included the case of only one defendant, a change of venue as to all defendants will not be disturbed; the statement having been treated by court and counsel as applying to all the cases, and the same reasons existing in the cases not included as in the one included. Ag'l v. Carnes, 125 Ky. 821 , 102 S.W. 284, 31 Ky. L. Rptr. 391 , 31 Ky. L. Rptr. 464 , 1907 Ky. LEXIS 330 (Ky. Ct. App. 1907).

Granting change of venue in murder case, on application of Commonwealth, was not error, where affidavit of Commonwealth’s attorney, supported by two (2) other affidavits, alleged not only a general state of lawlessness in the county, but that fair trial could not be had because of family connections and official influence of defendants. Hobbs v. Commonwealth, 306 Ky. 66 , 206 S.W.2d 48, 1947 Ky. LEXIS 943 ( Ky. 1947 ).

4. Notice or Petition Not Required.

When the change of venue is granted under the provisions of this section, on the personal knowledge of the court, supported by the written statement of the Commonwealth’s attorney, neither petition nor notice is required. Blanton v. Commonwealth, 210 Ky. 542 , 276 S.W. 507, 1925 Ky. LEXIS 725 ( Ky. 1925 ).

This section does not require notice of motion for change of venue. Cooper v. Commonwealth, 300 Ky. 770 , 189 S.W.2d 949, 1945 Ky. LEXIS 612 ( Ky. 1945 ).

5. Removal to Nonadjacent County.

Murder prosecution was properly transferred to nonadjacent county, where there existed in county in which the felony was committed, a lawless condition such as is described in this section, as well as grounds relating to defendant’s connections and relations in the county. Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ).

This section does not require that venue be changed to an adjacent county. Cooper v. Commonwealth, 300 Ky. 770 , 189 S.W.2d 949, 1945 Ky. LEXIS 612 ( Ky. 1945 ).

6. — Objection.

Defendants’ counsel could not complain on appeal of transfer of case to noncontiguous county under this section, since the record shows that there was no objection to the first order of removal and that counsel agreed to a second order of removal, and where defendants failed to suggest a contiguous county, or one in the same judicial district. Layne v. Commonwealth, 271 Ky. 418 , 112 S.W.2d 61, 1937 Ky. LEXIS 248 ( Ky. 1937 ).

7. Removal by Mutual Consent.

Where parties agree, in lieu of presenting evidence that grounds for change of venue exist, court may grant change. Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ).

8. Discretion of Trial Court.

The court had authority, under this section, to send case to another county, which it designated as most convenient county for trial of same, in which lawlessness did not exist, though defendants and others made affidavit that they did not believe defendants could have fair trial in such county. Adkins v. Commonwealth, 98 Ky. 539 , 33 S.W. 948, 17 Ky. L. Rptr. 1091 , 1896 Ky. LEXIS 11 ( Ky. 1896 ).

It was within trial court’s discretion, after denying motion for change of venue, to send order for a venire, from which the jury was to be made up, to another county. Daniel v. Commonwealth, 154 Ky. 601 , 157 S.W. 1127, 1913 Ky. LEXIS 127 ( Ky. 1913 ).

Refusal of change of venue requested under this section rests in discretion of trial judge, and will not be interfered with unless an abuse appears. Wallace v. Commonwealth, 167 Ky. 277 , 180 S.W. 381, 1915 Ky. LEXIS 842 ( Ky. 1915 ).

The judge may, in his discretion, order the prosecution removed on his own knowledge and the written statement of the Commonwealth’s attorney, without any other showing. Wallace v. Commonwealth, 167 Ky. 277 , 180 S.W. 381, 1915 Ky. LEXIS 842 ( Ky. 1915 ).

The trial judge did not abuse the discretion granted him under this section and KRS 452.210 and 452.220 in granting the Commonwealth a change of venue, where Commonwealth alleged that it could not get a fair and impartial trial because of the influence and conduct of defendant’s friends who had packed the courtroom during defendant’s four (4) former mistrials. Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ).

9. Jurisdiction After Change.

Where prosecution was removed to another county and indictment there quashed and a new one found, the new indictment need not allege the order of removal giving jurisdiction to the court, this appearing by the transcript. Kelley v. Commonwealth, 189 Ky. 778 , 225 S.W. 739, 1920 Ky. LEXIS 513 ( Ky. 1920 ).

10. Expenses of Witnesses.

This section does not render the county liable for the fees and mileage to which a witness is entitled, although by KRS 421.020 (repealed), a witness is allowed mileage only when he resides in county other than that in which trial takes place, and the witness in question resides in the county from which the cause was removed. Commonwealth v. Comes, 98 Ky. 4 , 32 S.W. 139, 17 Ky. L. Rptr. 553 , 1895 Ky. LEXIS 5 ( Ky. 1895 ).

11. Review of Change.

Since validity of transfer of indictment to another county under this section was reviewable on appeal to Court of Appeals in case of conviction, and indictment could be retransferred only under KRS 452.290 , transferee court was without power to review original change of venue, and retransfer of indictment based on review was error. Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ).

Cited:

Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ).

452.240. Not more than one change of venue allowed each party.

Not more than one (1) change of venue or application for a change of venue shall be allowed to any person or to the state in the same criminal or penal action.

History. 1118.

NOTES TO DECISIONS

1. Applicability.

Where defendant’s case was transferred, pursuant to KRS 452.210 , to two (2) other counties for failure to seat a jury in the county of indictment, and the judgment rendered in the third county was reversed and remanded to the third county, a motion to change venue back to the county of indictment, pursuant to KRS 452.290 , was barred; KRS 452.290 only applied to a transfer due to a state of lawlessness, pursuant to KRS 452.230 . KRS 452.240 prohibited an additional change of venue. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

2. Second Motion.

There is no statutory entitlement to a second change of venue. Hodge v. Commonwealth, 17 S.W.3d 824, 2000 Ky. LEXIS 17 (Ky.), modified, 17 S.W.3d 824, 2000 Ky. LEXIS 66 ( Ky. 2000 ), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7910 (U.S. 2000).

3. — Amended Petition.

Where a motion for a change of venue was made by the Commonwealth and overruled by the court, and later an amended petition, elaborating the grounds set up in the original petition, was filed, upon which the change was granted, this section was not violated. Combs v. Commonwealth, 196 Ky. 804 , 246 S.W. 132, 1922 Ky. LEXIS 610 ( Ky. 1922 ).

4. — Subsequent Term.

It was not error for the court to overrule a second motion for change of venue, though made at a subsequent term. Pace v. Commonwealth, 37 S.W. 948, 18 Ky. L. Rptr. 690 (1896).

5. — Previous Motion Withdrawn.

Where Commonwealth moved for change of venue, but after the court announced that the motion would be sustained, and before entering any order to that effect, the Commonwealth withdrew its motion, the granting of another motion by Commonwealth for change of venue, after a mistrial, was not erroneous. White v. Commonwealth, 120 Ky. 178 , 85 S.W. 753, 27 Ky. L. Rptr. 561 , 1905 Ky. LEXIS 86 ( Ky. 1905 ). See Jett v. Commonwealth, 139 Ky. 794 , 85 S.W. 1179, 27 Ky. L. Rptr. 603 , 1905 Ky. LEXIS 2 ( Ky. 1905 ).

Where defendant’s first and second motions for a change of venue were withdrawn after the order overruling them had been made, and the application was later renewed, each of such renewals should have been treated as a new application, which this section forbids. Frazier v. Commonwealth, 182 Ky. 620 , 207 S.W. 13, 1918 Ky. LEXIS 420 ( Ky. 1918 ).

6. — Previous Denial Set Aside.

The overruling of a motion for change of venue is interlocutory only, and is subject to control of court at subsequent term, so that, if events occurring after the hearing of the motion warrant the granting of a change, the court may in its discretion set aside an order denying the motion and grant the application. Fletcher v. Commonwealth, 123 Ky. 571 , 96 S.W. 855, 29 Ky. L. Rptr. 955 , 1906 Ky. LEXIS 278 ( Ky. 1906 ).

7. Case on Remand.

The case, when remanded to the court whence it came, in obedience to direction of Court of Appeals, stood as if it had never been removed, and court then had power to make another removal. Smith v. Commonwealth, 113 Ky. 19 , 67 S.W. 32, 23 Ky. L. Rptr. 2271 , 1902 Ky. LEXIS 17 ( Ky. 19 02).

Remanding of case back to the county where the prosecution originated was not a change of venue such as would violate this section’s prohibition of more than one (1) change of venue. Commonwealth v. Kelly, 230 Ky. 122 , 18 S.W.2d 953, 1929 Ky. LEXIS 30 ( Ky. 1929 ).

8. Reasonable Notice to Opposing Party.

The trial judge did not abuse his discretion by denying the motion for a second change of venue because the prosecution was not given reasonable notice of the motion; without reasonable notification the Commonwealth could not present evidence in support of its opposition to the motion by subpoenaing witnesses to testify or otherwise preparing to contest the motion. Taylor v. Commonwealth, 817 S.W.2d 891, 1990 Ky. LEXIS 81 ( Ky. 1990 ).

Cited:

Taylor v. Commonwealth, 821 S.W.2d 72, 1990 Ky. LEXIS 159 ( Ky. 1990 ), cert. denied, Taylor v. Kentucky, 502 U.S. 1100, 112 S. Ct. 1185, 117 L. Ed. 2d 428, 1992 U.S. LEXIS 966, 60 U.S.L.W. 3579 (1992), cert. denied, Kentucky v. Taylor, 502 U.S. 1121, 112 S. Ct. 1243, 117 L. Ed. 2d 475, 1992 U.S. LEXIS 1196, 60 U.S.L.W. 3580 (1992), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

452.250. Transfer of papers on change of venue.

  1. When a criminal or penal action is removed, the circuit clerk shall immediately transmit the original papers, together with a transcript of the orders pertaining to the action, to the clerk of the court to which the removal is ordered, after first making out and retaining a copy of the original papers. The transfer shall be made by the clerk, his deputy or some discreet person for whom the clerk shall be responsible. If the defendant is the applicant, he shall, before the change of venue is ordered, pay the clerk for making the copy, and also ten cents ($0.10) a mile for necessary travel, going and returning, in making the transfer.
  2. If one (1), or some only, of several defendants charged in the same indictment, apply for or are allowed a change of venue, the original indictment shall be retained and a certified copy sent, which shall serve in lieu of the original.

History. 1115, 1116.

NOTES TO DECISIONS

1. Jurisdiction After Change.

Where indictment was quashed in court to which change of venue was granted, a new indictment may be found from time to time by a grand jury of the county to which the removal was made, and the same prosecuted until the case is finally disposed of, since the court acquired jurisdiction by virtue of the order of removal, and since the jurisdictional fact is shown by the transcript of the order of removal to that court as provided for by this section. Kelley v. Commonwealth, 189 Ky. 778 , 225 S.W. 739, 1920 Ky. LEXIS 513 ( Ky. 1920 ).

2. Clerk’s Fees.

Where new county was created and new court properly had jurisdiction of cases, clerk had right to fees upon proper transfer of papers. In re Lay, 150 Ky. 448 , 150 S.W. 529, 1912 Ky. LEXIS 917 ( Ky. 1912 ).

3. Sufficiency of Transferred Record.

After defendant’s first two (2) trials on a homicide charge ended in hung juries, and defendant was granted a change of venue to the Pike Circuit Court which convicted him of voluntary manslaughter, he was not entitled to a reversal of the conviction on the ground that the Pike Circuit Court lacked jurisdiction because an alleged defective and insufficient record was transmitted to it in that it failed to show that the grand jury which returned the indictment was properly impaneled and that the order granting the change of venue was not signed by the judge in the original court, since it is not absolutely necessary to the jurisdiction that a copy of the entire record be transmitted, but only so much thereof as will enable the court to determine what is in controversy, and because the defendant did not show that the Pike Circuit Court did not have jurisdiction by showing the court had not signed the order or the order-book containing the order granting the change. Deaton v. Commonwealth, 313 Ky. 769 , 233 S.W.2d 533, 1950 Ky. LEXIS 981 ( Ky. 1950 ).

Cited:

Commonwealth v. Comes, 98 Ky. 4 , 17 Ky. L. Rptr. 553 , 32 S.W. 139, 1895 Ky. LEXIS 5 ( Ky. 1895 ); Jenkins v. Commonwealth, 167 Ky. 544 , 180 S.W. 961, 1915 Ky. LEXIS 877 , 3 A.L.R. 1522 ( Ky. 1915 ); Childers v. Commonwealth, 239 S.W.2d 255, 1951 Ky. LEXIS 873 ( Ky. 1951 ).

452.260. Proceedings when defendant is in custody or on bail.

If the defendant is in custody, the order for the change of venue shall be accompanied by an order for his removal by the sheriff or jailer of the county in which he is held, with such sufficient guard as the court directs, and for his delivery to the jailer of the county where the trial is to be held. If the defendant is under recognizance or bond for his appearance he shall, before the order is granted, give sufficient bail for his appearance at the proper court, or be surrendered into the custody of the proper officer.

History. 1113.

NOTES TO DECISIONS

1. Construction.

It is only where the defendant is the applicant for a change of venue that the defendant may contend that the provisions of this section are jurisdictional, and that, for failure to observe their requirements, the court to which an attempted change of venue is made acquires jurisdiction neither of the subject matter of the charge nor of the person of the defendant. Blanton v. Commonwealth, 210 Ky. 542 , 276 S.W. 507, 1925 Ky. LEXIS 725 ( Ky. 1925 ).

2. New Bail.

Where Commonwealth was granted a change of venue under KRS 452.230 , this section does not require that, when defendant is on bail, he shall be required to give new bail. Blanton v. Commonwealth, 210 Ky. 542 , 276 S.W. 507, 1925 Ky. LEXIS 725 ( Ky. 1925 ).

3. Liability on Bond.

Where defendants executed recognizance for appearance of accused at certain Circuit Court, and accused obtained change of venue to another court, and the order was subsequently set aside, and accused failed to appear at trial in first named court, defendants were liable on the recognizance where, on obtaining change of venue, the accused did not give bail for his appearance in the proper court, nor was surrendered into custody by defendants as required by this section. Gray v. Commonwealth, 100 Ky. 645 , 38 S.W. 1092, 18 Ky. L. Rptr. 1093 , 1897 Ky. LEXIS 39 ( Ky. 1897 ).

4. Confinement in Third County.

Where, on the change of venue in a criminal case from one county to another, the court ordered prisoner to be confined in the jail of a third county, it will be presumed, in the absence of any showing to the contrary, that his action was based on one of the grounds authorized by KRS 441.520 . White v. Commonwealth, 120 Ky. 178 , 85 S.W. 753, 27 Ky. L. Rptr. 561 , 1905 Ky. LEXIS 86 ( Ky. 1905 ).

Cited:

Commonwealth v. Comes, 98 Ky. 4 , 17 Ky. L. Rptr. 553 , 32 S.W. 139, 1895 Ky. LEXIS 5 ( Ky. 1895 ).

Opinions of Attorney General.

Where a defendant on bail applies for a change of venue, prior to the court order for transfer, the defendant must execute new bail because the original bond would not transfer to the Circuit Court in another county. OAG 73-57 .

Research References and Practice Aids

Cross-References.

Allowance for conveying prisoner charged with felony from one county to another, KRS 64.070 .

452.270. Recognizances of witnesses — Preparation for trial.

The court shall also take recognizances of the witnesses for their appearance at the proper court, and make such order as it considers necessary to a speedy and impartial trial upon the merits of the case.

History. 1114.

452.280. Power of court to which action removed.

The court to which the action is removed shall have the same jurisdiction to dispose of the case as the court from which it was removed. If the indictment is quashed or a nolle prosequi entered, a new indictment may be found, from time to time, by a grand jury of the county to which the action was removed, and the action may be prosecuted until finally disposed of, as if the offense had been committed in that county.

History. 1117.

NOTES TO DECISIONS

1. Jurisdiction After Change.

A Circuit Court has no jurisdiction to hear and punish an offense wholly committed in a county other than the one in which it sits, unless order for change of venue has been made in the court having jurisdiction in county where the offense was committed, thus conferring jurisdiction to hear and determine the indictment or information charging the offense upon the Circuit Court of some other county. Commonwealth v. Ward, 185 Ky. 295 , 215 S.W. 31, 1919 Ky. LEXIS 288 ( Ky. 1919 ).

Where indictment was quashed in court to which change of venue was granted, a new indictment may be found from time to time by a grand jury of the county to which the removal was made, and the same prosecuted until the case is finally disposed of, since the court acquired jurisdiction by virtue of the order of removal, and since the jurisdictional fact is shown by the transcript of the order of removal to that court. Kelley v. Commonwealth, 189 Ky. 778 , 225 S.W. 739, 1920 Ky. LEXIS 513 ( Ky. 1920 ).

Although petition for change of venue to nonadjacent county was insufficient, and proof was not taken that fair trial could not be had in adjacent county, court of nonadjacent county had jurisdiction to try case, though it did not have venue. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

2. Original Court Divested of Jurisdiction.

When a case has been removed, the court from which it came has been divested of jurisdiction and another indictment found in that county against a defendant for the same offense is a nullity. Woods v. Commonwealth, 285 Ky. 275 , 147 S.W.2d 690, 1941 Ky. LEXIS 369 ( Ky. 1941 ).

3. Erroneous Review of Removal.

In a case involving venue, the Circuit Court to which the action had been removed erred when it reviewed the order of the transferring court, because under this section the court to which the case is removed is not granted the authority or discretion to assume the role of an appellate court and review orders previously entered by the transferring court. Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ).

Cited:

Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ).

452.290. Retransfer to original county after state of lawlessness ends.

Whenever the judge of any Circuit Court in which an indictment charging the defendant with a felony is pending by change of venue under KRS 452.230 is satisfied from personal knowledge or from reliable information furnished in court by affidavit or oral testimony that a state of lawlessness sufficient to prevent officers and jurors from discharging their duties no longer exists in the county from which the action was removed, the court shall transfer the action back to the Circuit Court of the county where the indictment was found.

History. 1120.

NOTES TO DECISIONS

1. Applicability.

Where defendant’s case was transferred, pursuant to KRS 452.210 , to two (2) other counties for failure to seat a jury in the county of indictment, and the judgment rendered in the third county was reversed and remanded to the third county, a motion to change venue back to the county of indictment, pursuant to KRS 452.290 , was barred; KRS 452.290 only applied to a transfer due to a state of lawlessness, pursuant to KRS 452.230 . KRS 452.240 prohibited an additional change of venue. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

2. Construction.

Remanding of a case back to the county where the prosecution originated under this section does not constitute a second change of venue in violation of KRS 452.240 . Commonwealth v. Kelly, 230 Ky. 122 , 18 S.W.2d 953, 1929 Ky. LEXIS 30 ( Ky. 1929 ).

This section does not give transferee court power to review order of transferor court, but limits power of transferee court to retransfer solely upon ground provided. Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ).

3. Duty of Judge.

Where judge is satisfied that state of lawlessness no longer exists in county from which case was transferred, it is his duty to transfer the case back to that county whether application for remand is made by prosecution or by defendant. Commonwealth v. Kelly, 230 Ky. 122 , 18 S.W.2d 953, 1929 Ky. LEXIS 30 ( Ky. 1929 ).

4. Erroneous Retransfer.

The Circuit Court to which the action had been removed erred when it retransferred criminal indictments back to the original transferring court, because the only authority found in this section for retransfer is where it is determined that a state of lawlessness has ended in the transferring county. Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ).

Cited:

Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ); Layne v. Commonwealth, 271 Ky. 418 , 112 S.W.2d 61, 1937 Ky. LEXIS 248 ( Ky. 1937 ).

452.300. Who may make motion for retransfer.

A retransfer as provided in KRS 452.290 may be made upon motion of the Attorney General or of the Commonwealth’s attorney of the judicial circuit in which the indictment is pending, upon ten (10) days’ notice in writing to the defendant in the indictment unless notice is waived in open court by the defendant.

History. 1121: amend. Acts 1976, ch. 62, § 132.

NOTES TO DECISIONS

1. Waiver of Notice.

Where defendants were present in court with their counsel and made no objection of record to the remand, they thereby waived notice of the motion and are deemed to have consented to the retransfer. Woods v. Commonwealth, 285 Ky. 275 , 147 S.W.2d 690, 1941 Ky. LEXIS 369 ( Ky. 1941 ).

Cited:

Commonwealth v. Kelly, 230 Ky. 122 , 18 S.W.2d 953, 1929 Ky. LEXIS 30 ( Ky. 1929 ); Commonwealth v. Kelly, 266 Ky. 662 , 99 S.W.2d 774, 1936 Ky. LEXIS 725 ( Ky. 1936 ).

452.310. Retransfer of papers.

In the case of a retransfer under KRS 452.290 , the circuit clerk shall immediately transmit the original papers, together with a transcript of the record pertaining thereto to the clerk of the court to which the retransfer is made, after making out and retaining in his office a copy of the original papers. The retransfer of the papers shall be made by the clerk or his deputy, or by some discreet person selected by the clerk for that purpose.

History. 1124.

452.320. Proceedings on retransfer when defendant is in custody.

If the defendant is in custody at the time the retransfer under KRS 452.290 is ordered, the court shall order his removal by the sheriff or jailer of the county, with such sufficient guards as the court directs, and his delivery to the jailer of the county to which the retransfer is made.

History. 1122; 1962, ch. 234, § 61.

Compiler’s Notes.

Subsection 2 of this section was repealed by Acts 1962, ch. 234, § 61.

Research References and Practice Aids

Cross-References.

Allowance for conveying prisoner charged with felony from one county to another, KRS 64.070 .

452.330. Recognizances of witnesses on retransfer — Preparation for trial.

The court ordering the retransfer under KRS 452.290 shall also take the recognizance of all witnesses for their appearance at the proper court, and make such other orders as it considers necessary to secure a speedy and impartial trial upon the merits of the case.

History. 1123.

452.340. Cost of change of venue or retransfer — Fees. [Repealed.]

Compiler’s Notes.

This section (1119, 1125) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

452.350. Application of KRS 452.210 to 452.330.

KRS 452.210 to 452.330 apply to criminal or penal actions in Circuit and District Courts.

History. Amend. Acts 1976 (Ex. Sess.), ch. 14, § 467, effective January 2, 1978; 1980, ch. 188, § 303, effective July 15, 1980.

Compiler’s Notes.

This section was originally created by the Legislative Research Commission to indicate the application of the sections referred to.

Criminal Actions in Inferior Courts

452.360. Change of venue from county, quarterly, justice’s or police court — How action tried. [Repealed.]

Compiler’s Notes.

This section (1126) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

Original Venue in Civil Actions

452.400. Certain actions concerning realty to be brought in county where land is situated.

Actions must be brought in the county in which the subject of the action, or some part thereof, is situated:

  1. For the recovery of real property, or of an estate or interest therein;
  2. For the partition of real property except as is provided in KRS 452.420 ;
  3. For the sale of real property under a mortgage, lien, or other encumbrance or charge, except for debts of a decedent;
  4. For an injury to real property.

History. C. C. 62: trans. Acts 1952, ch. 84, § 1; 1980, ch. 87, § 9, effective July 15, 1980; 1982, ch. 277, § 20, effective July 15, 1982.

NOTES TO DECISIONS

1. Purpose.

The purpose of this section is not to regulate the jurisdiction of courts, but it simply regulates the procedure in civil actions by determining the venue of actions. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

2. Jurisdiction.

Where averments of the petition leave in doubt the jurisdictional fact that part of the land lies in the county where action is brought, the court should have sustained the special demurrer filed by appellant to its jurisdiction. Bingham v. Asher, 165 Ky. 53 , 176 S.W. 343, 1915 Ky. LEXIS 467 ( Ky. 1915 ).

Where plaintiffs first brought an action for alleged trespass to land in the county court in which the land was located, subsequently discovered that defendant’s agent was no longer living in the state and, without dismissing the first action, initiated a second action in a court in another county under KRS 454.210 , the first court had exclusive jurisdiction. Asher v. Bishop, 482 S.W.2d 769, 1972 Ky. LEXIS 205 ( Ky. 1972 ).

3. Recovery of Real Estate.

Action for recovery of royalties due for oil and gas, was not an action for the recovery of real estate under this section though the issue involved title to land, and though the judgment that may be rendered may settle the rights of the parties by way of estoppel. Central Kentucky Natural Gas Co. v. Stevens, 134 Ky. 306 , 120 S.W. 282, 1909 Ky. LEXIS 375 ( Ky. 1909 ).

Action by persons claiming property through will and mesne conveyances against executor to recover rents, profits, and damages arising from the alleged wrongful withholding of the property was an action for the recovery of an interest in real property, which must be brought in the county where the property is located. Cox v. Simmerman, 266 Ky. 255 , 98 S.W.2d 915, 1936 Ky. LEXIS 650 ( Ky. 1936 ).

An action by a mortgagee to recover an oil royalty where the mortgagor owned the oil royalty involved an interest in real estate, and was properly brought in the county where the real estate lay. Williams' Adm'r v. Union Bank & Trust Co., 283 Ky. 644 , 143 S.W.2d 297, 1940 Ky. LEXIS 408 ( Ky. 1940 ).

4. Action Involving Real Estate.

Action on covenants of warranty by remote grantee in mesne deed conveying to him standing trees, with the right and privilege of going on the lands for the purpose of cutting and removing them within the period of five (5) years, and for a longer period if desired, is a real action in which venue must be laid in the county where the estate lies. Burt & B. Lumber Co. v. Bailey, 175 F. 131, 1909 U.S. App. LEXIS 5735 (C.C.D. Ark. 1909).

Venue of action which sought to enforce plaintiff’s contract rights in land and to recover his interest by the sale of the whole and the payment to him of the proceeds, in excess of $4,000 reserved to the holder of the naked legal title, was fixed by this section. Squires v. O'Maley, 84 S.W. 1172, 27 Ky. L. Rptr. 307 (1905).

Suit brought by a judgment creditor upon a return of no property found, to set aside a fraudulent conveyance of land and subject it to the payment of his judgment, must be brought in the county where the land or some part of it is situated. Williams v. Davenport, 181 Ky. 496 , 205 S.W. 551, 1918 Ky. LEXIS 545 ( Ky. 1918 ).

Where an action to set aside certain conveyances of defendant to his wife as fraudulent was brought in county of defendants’ residence, the trial court had jurisdiction to set aside a conveyance in another county after it developed at trial that a superior lien existed as to land in county of defendants’ residence in order to satisfy the debt of one of the defendants. Crawford v. Crawford, 286 Ky. 105 , 149 S.W.2d 778, 1941 Ky. LEXIS 219 ( Ky. 1941 ).

In a suit by wife which sought declaratory judgment that deceased husband was not a person of unsound mind on date of marriage and that she was entitled to all of deceased husband’s property, if suit was one involving real estate it would be governed by this section or if it was action to settle estate of deceased person it would be governed by KRS 452.415 and 452.420 and would not be a transitory action as would be governed by KRS 452.480 . Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

Venue of an action directing specific performance to convey an interest in land was in the county of the residence of the defendant and not in the county where the land was situated. Caudill v. Little, 293 S.W.2d 881, 1956 Ky. LEXIS 104 ( Ky. 1956 ).

A remonstrance proceeding in itself is in the nature of an action in personam rather than in rem since the act of annexation is done in reference to the property and could be performed anywhere, and does not directly affect the real estate of the territory proposed to be annexed; therefore, this section is inapplicable to this case and this remonstrance proceeding is not an action relating to real property. Willis v. Corbin, 572 S.W.2d 610, 1978 Ky. App. LEXIS 601 (Ky. Ct. App. 1978).

Pursuant to KRS 452.400 , 411.120 , providing expansive and general jurisdiction over matters involving real property, the circuit court had jurisdiction over an inverse condemnation action seeking to recover damages that resulted from the filing of an invalid lien under KRS 342.770 . A determination had been made in the underlying workers’ compensation matter that the property owner was not the employer, and the circuit court did not invade the province of the administrative agency. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

5. — Situated in Two Different Counties.

Where a mortgage embraces separate tracts of land lying in two (2) different counties the Circuit Court of either county has complete jurisdiction, by virtue of this section, to enforce the lien upon both tracts. Hendrix v. Nesbitt, 96 Ky. 652 , 29 S.W. 627, 16 Ky. L. Rptr. 746 , 1895 Ky. LEXIS 134 ( Ky. 1895 ).

Where the boundary of a tract of land lying in two (2) counties is well defined or well marked, possession in one county, accompanied by a claim of the whole, will carry with it possession in the other. Blevins v. Blackburn, 189 Ky. 620 , 225 S.W. 372, 1920 Ky. LEXIS 484 ( Ky. 1920 ).

Since the Clay Circuit Court had jurisdiction of an action for alleged trespass to land situated partly in Clay County, the plaintiffs were not entitled to a writ of prohibition against the Clay Circuit Judge prohibiting him from hearing the case after the plaintiffs had filed a subsequent suit in the same cause of action in Woodford Circuit Court. Asher v. Bishop, 482 S.W.2d 769, 1972 Ky. LEXIS 205 ( Ky. 1972 ).

6. — Trespass to Land.

Under this section, an action for trespass to land must be brought in the county where the trespass was committed. Dennis Bros. v. Strunk, 108 S.W. 957, 32 Ky. L. Rptr. 1230 (1908).

7. — Determination of Title.

Venue of action to cancel deed to quiet title, and, if this could not be done, to enforce lien on the land for purchase money which had not been paid, held to be in the county in which the land lies. Burt & Brabb Lumber Co. v. Bailey, 60 S.W. 485, 22 Ky. L. Rptr. 1264 (1901).

The Circuit Court had no jurisdiction to try title as between the heirs and others claiming the lands in another county adversely, since the special statute authorizing the action conferred no such authority. Graham's Heirs v. Kitchen, 118 Ky. 18 , 80 S.W. 464, 25 Ky. L. Rptr. 2224 , 1904 Ky. LEXIS 11 ( Ky. 1904 ).

Where, in action filed in Jefferson County after return of no property found, attachment is issued and levied on land in Leslie County, Jefferson Circuit Court is without jurisdiction to try title to land in the adverse and hostile possession of third parties. Bramblett v. Couch, 105 S.W. 460, 32 Ky. L. Rptr. 311 (1907).

Action brought to cancel leases of oil and gas on certain lands in Warren County, Kentucky, constituting a cloud on title, against defendants residing in other counties, is not transitory, but one the venue of which was fixed by subsection (1) of this section. Maverick Oil & Gas Co. v. Howell, 193 Ky. 433 , 237 S.W. 40, 1922 Ky. LEXIS 48 ( Ky. 1922 ).

There was no conflict of jurisdiction where the Circuit Court of one county ordered land situated in another county sold to enforce a judgment, while third party, who claimed title to such land, brought an action against prevailing plaintiff and master commissioner in Circuit Court of county where the land was situated to quiet his title. Daniels v. Gillum, 203 Ky. 262 , 262 S.W. 272, 1924 Ky. LEXIS 899 ( Ky. 1924 ).

Under this section, Circuit Court where land is situated had exclusive jurisdiction to try question of title. Daniels v. Gillum, 203 Ky. 262 , 262 S.W. 272, 1924 Ky. LEXIS 899 ( Ky. 1924 ).

An action to quiet title and to enjoin trespass to a tract of land which lies in two (2) or more counties may go into the courts of any one of the counties in which any part of that tract of land may lie. Collins v. Adams, 207 Ky. 42 , 268 S.W. 828, 1925 Ky. LEXIS 9 ( Ky. 1925 ).

Chancellor of Clark Circuit Court who granted the parties a divorce from bed and board did not have jurisdiction to grant to each party a one half (1/2) interest in a farm in Larue County, since under this section the Larue Circuit Court is the only court having jurisdiction to pass upon the title to said farm, unless the action was one to satisfy the debt of a decedent. Noel v. Noel, 307 Ky. 122 , 210 S.W.2d 137, 1947 Ky. LEXIS 1031 ( Ky. 1947 ).

In action filed by widow of deceased resident of Indiana seeking a declaratory judgment decreeing that her husband was not, on the date of their marriage, of unsound mind, and thus capable of consummating their marriage and alleging facts showing plaintiff entitled to the whole of deceased’s estate consisting of both real and personal property, the suit was one for establishing title to the estate left by plaintiff’s deceased husband, and the attempt to have the marriage status fixed was only for purpose of fixing devolution of deceased’s property located in Indiana and should have been brought in county in which property was situated, and was not a local action in which joining a local defendant in some other county would have conferred jurisdiction. Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

8. — Ejectment.

Venue of an action in ejectment is determined by the location of the property, not by the residence of the parties, and under this section such an action must be brought in the county in which the land or some part thereof is situated. Richfield Coal Co. v. Bennett, 310 Ky. 552 , 221 S.W.2d 91, 1949 Ky. LEXIS 968 ( Ky. 1949 ).

Where lands claimed by plaintiff were situated partly in Bell County and partly in Knox County, plaintiff could bring an action in ejectment against 30 defendants in the Bell Circuit Court even though 28 of the defend- ants resided in Knox County, since the land in controversy constituted one body of contiguous land at the time of the action although it originally had been separate and distinct tracts. Richfield Coal Co. v. Bennett, 310 Ky. 552 , 221 S.W.2d 91, 1949 Ky. LEXIS 968 ( Ky. 1949 ).

9. — Partition.

Leasehold estates in mineral lands, whether consisting of coal, oil, gas, or other minerals, are to be regarded as real estate for the purposes of partition for fixing the venue of actions under this section. Commonwealth v. Elkhorn-Piney Coal Min. Co., 241 Ky. 245 , 43 S.W.2d 684, 1931 Ky. LEXIS 51 ( Ky. 1931 ).

10. — Sale.

An action for division of land and allotment of dower must be brought in the circuit or county court in which the land, or a greater part thereof, lies; the court may divide or allot dower in lands lying in any other county, but a separate action for sale of land under this section may be brought by the heirs in the county in which the land lies. Danforth v. Moss, 90 Ky. 246 , 13 S.W. 881, 12 Ky. L. Rptr. 148 , 1890 Ky. LEXIS 71 ( Ky. 1890 ).

An action under subsection (2) KRS 389.020 (repealed), for the sale of land owned jointly by plaintiffs and defendants as devisees under a will, and for a distribution of the proceeds, upon the ground that the property could not be divided without materially impairing its value, was properly brought in the county in which the land was situated although that was not the county in which the personal representative of the testator was qualified. Perkins v. McCarley, 97 Ky. 43 , 29 S.W. 867, 16 Ky. L. Rptr. 801 , 1895 Ky. LEXIS 146 ( Ky. 1895 ).

In action filed by the administrator and two (2) of the beneficiaries in Franklin County, seeking sale of two (2) lots in Franklin County owned by the deceased and one (1) lot in Jefferson County in which deceased held a one fourth (1/4) interest, and division of the proceeds, exception to the sale, by the purchaser of the Jefferson County lot, on the ground that the court was without jurisdiction of the subject matter, was sustained. Goldsmith's Adm'r v. Hieatt, 90 S.W. 259, 28 Ky. L. Rptr. 741 (1906).

Where under a joint venture, plaintiff and defendants were joint owners of a tract of land, plaintiff had the right to bring an action for an accounting and for a sale of the land in the county where the land was located. Central Trust Co. v. Creel, 184 Ky. 114 , 211 S.W. 421, 1919 Ky. LEXIS 29 ( Ky. 1919 ).

Action by stockholders of defunct corporation to sell mineral leases held by corporation and distribute proceeds to stockholders was maintainable only in county in which land or some part thereof is situated, since this section localizes actions relating to real estate, and because such mineral leases are real estate. Shadoin v. Sellars, 223 Ky. 751 , 4 S.W.2d 717, 1928 Ky. LEXIS 431 ( Ky. 1928 ).

In an action under KRS 426.381 to enforce a judgment brought in the court rendering the judgment, such court had jurisdiction to sell land of the judgment debtor located in another county and as a necessary incident to such jurisdiction, the additional power to bring before the court and adjudicate the rights of all persons asserting a lien or claim to the land. Noe v. Brock, 263 Ky. 37 , 91 S.W.2d 546, 1936 Ky. LEXIS 126 ( Ky. 1936 ).

In an action for equitable discovery, the court which rendered alimony judgments which had been returned nulla bona, had jurisdiction to order that land belonging to the husband in another county be sold to satisfy the wife’s claim and of the others brought into the action through the various pleadings and cross petitions filed, and by the order of removal and consolidation of the action filed by the banking commissioner. Hargis v. Hargis, 287 Ky. 72 , 151 S.W.2d 417, 1941 Ky. LEXIS 481 ( Ky. 1941 ).

11. — Mortgages.

Court which has obtained jurisdiction to wind up the affairs of an insolvent corporation, has jurisdiction to decree a sale of its mortgaged land, though situated in another county, where the mortgagee is a party to the action, has filed a cross petition praying foreclosure and no settlement of the corporate affairs can be made without such sale. Mechanics' Trust Co. v. Cobb, 20 S.W. 391, 14 Ky. L. Rptr. 444 (1892).

In an action to liquidate the affairs of an insolvent building and loan association, the court has no jurisdiction to foreclose a mortgage on land situated in another county. Reddick v. United States Bldg. & Loan Ass'n's Assignee, 106 Ky. 94 , 49 S.W. 1075, 20 Ky. L. Rptr. 1720 , 1899 Ky. LEXIS 16 ( Ky. 1899 ).

Under this section, an action for the sale of land under a mortgage must be brought in the county in which the land lies, even though the mortgagors lived in another county. Dunn v. Whitley Nat'l Bank, 239 Ky. 536 , 39 S.W.2d 993, 1931 Ky. LEXIS 817 ( Ky. 1931 ).

The venue of an action to foreclose a mortgage upon realty, lying wholly within a county and mortgaged in that county by a resident/mortgagor of that county, was not properly laid in a second county, to accommodate the mortgagee who was foreclosing upon lands of other mortgagors lying in that second county. Alexander v. Springfield Production Credit Asso., 673 S.W.2d 741, 1984 Ky. App. LEXIS 607 (Ky. Ct. App. 1984).

12. — Enforcement of Liens.

An action purely for a rescission of a contract for the sale of land is transitory, being an action in personam; when in such an action it is further sought to enforce a lien on land which results from the rescission, then the action becomes local and the jurisdiction is in the county where the land lies, whether the defendants are served with process there, or not. Bullitt v. Eastern Kentucky Land Co., 99 Ky. 324 , 36 S.W. 16, 18 Ky. L. Rptr. 230 , 1896 Ky. LEXIS 100 ( Ky. 1896 ).

Where there is no suit pending to settle the estate of a decedent, an action to enforce a mortgage lien against the land of the decedent should be brought in the county where the land is situated. Shields v. Yellman, 100 Ky. 655 , 39 S.W. 30, 18 Ky. L. Rptr. 1092 , 1897 Ky. LEXIS 42 ( Ky. 1897 ).

Under subsection (3) of this section the words “lien, on other encumbrance or charge,” are not to embrace an attachment lien, but refer to liens or charges created by contract on judgment. Hatton v. Rogers, 134 Ky. 840 , 121 S.W. 698, 1909 Ky. LEXIS 442 ( Ky. 1909 ).

Action to enforce a lien for unpaid purchase money, reserved in an instrument, denominated a lease, granting, for a consideration payable before severance of the minerals, the right to quarry, mine or drill for minerals and oils, is an action to subject real property to a lien retained in the deed of conveyance for unpaid purchase money, and therefore not transitory but local to county where the land is located. Kennedy v. Hicks, 180 Ky. 562 , 203 S.W. 318, 1918 Ky. LEXIS 108 ( Ky. 1918 ).

Grayson Circuit Court is without jurisdiction to enforce a lien on land in Edmonson County, in action brought to settle the estate of the deceased owner and holder of the note. McDowell v. Phelps' Adm'r, 229 Ky. 749 , 17 S.W.2d 1023, 1929 Ky. LEXIS 839 ( Ky. 1929 ).

Where city of sixth class issued bonds to pay for improvement of road, bondholder could not bring an action in that county to enforce a lien against a lot located in the next county which the city had unsuccessfully attempted to annex. Hedger v. Allmoslechner, 276 Ky. 553 , 124 S.W.2d 785, 1939 Ky. LEXIS 554 ( Ky. 1939 ).

Action for the enforcement of a lien on real estate to collect admitted amount which lien secured is required under this section to be brought in the county in which the real estate is located, so that Circuit Court had jurisdiction to enforce a lien on realty which trustee mortgaged to sureties on his bond to secure eventual accounting of the trustee to his cestui que trust, where such realty was situated within that court’s jurisdiction. Slack v. Winburn, 281 Ky. 464 , 136 S.W.2d 579, 1940 Ky. LEXIS 59 ( Ky. 1940 ).

Where creditor argued that it had not received a preference from debtor because creditor was actually harmed by the agreed judgment, in reality no valuable rights were yielded by creditor in agreed judgment because creditor’s lien on debtor’s leases was subordinate to another party’s prior mortgage, enforcement of the liens was not sought within one (1) year, and the enforcement action was not brought in the county in which the interest existed. Perkins v. Petro Supply Co. (In re Rexplore Drilling), 971 F.2d 1219, 1992 U.S. App. LEXIS 17711 (6th Cir. Ky. 1992 ).

13. — Injury to Real Estate.

While at the common law and by subsection (4) of this section, an action for injury to real property is made local, and must therefore, as a general rule be brought in the county in which the land is situated, this rule is not to be arbitrarily enforced where the injury to the real estate results from a cause or act arising or occurring in a county or state other than the one in which it is situated, so that in such a state of case the law seems to allow the owner of real estate the right to elect whether he will sue in the county or state where the land lies or in that in which the act causing the injury was committed. Smith v. Southern R. Co., 136 Ky. 162 , 123 S.W. 678, 1909 Ky. LEXIS 465 ( Ky. 1909 ).

Subsection (4) of this section, providing that an action for an injury to real property must be brought in the county in which the subject of the action or some part thereof is situated, regulates the venue of actions relating to injury to land, and KRS 452.455 , fixing the venue of actions against carriers, only covers other actions than those made local by this section so that an action against a railroad for the destruction of fences and timber by fire must be brought in the county where the land is situated. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

Action for damages for the obstruction of a passway was properly brought in the county where the land is located, and not in the county where defendants reside or in some other county where they were served with process. Harp v. Brookshire, 197 Ky. 794 , 248 S.W. 177, 1923 Ky. LEXIS 717 ( Ky. 1923 ).

Destruction of hotel by fire because of negligent and careless conduct was an injury to real property within the meaning of this section. Combs v. Hargis Bank & Trust Co., 234 Ky. 202 , 27 S.W.2d 955, 1930 Ky. LEXIS 147 ( Ky. 1930 ).

Rules that where jurisdiction has attached for one purpose all questions pertinent to the issues involved between the parties may be determined in that suit is not applicable to actions for injury to real estate. Day v. Knuckles, 297 Ky. 157 , 179 S.W.2d 220, 1944 Ky. LEXIS 689 ( Ky. 1944 ).

Where the remainder beneficiaries of a trust sued the administrator of the estate of the life tenant for waste committed during the life tenancy, the action was principally for damage to real estate and had to be instituted in the county in which the land was situated. Meredith v. Ingram, 444 S.W.2d 551, 1969 Ky. LEXIS 216 ( Ky. 1969 ).

11. Mortgages.

Information required by Fed. R. Bankr. P. 3002.1 was still needed after stay relief, as a debtor could still seek to defend a foreclosure action, enter into a loan modification, propose further plan amendments, or sell the residence by private sale. Requiring continued disclosure might further benefit the debtor and Chapter 13 trustee in their review of a creditor’s post-foreclosure deficiency claim; this was particularly true in judicial foreclosure jurisdictions such as Kentucky, under KRS 452.400(3). In re Holman, 2013 Bankr. LEXIS 981 (Bankr. E.D. Ky. Mar. 15, 2013).

14. Leases.

A lease is not an interest in real property within the meaning of this section, and an action to determine rights under a lease must be brought in the county of the defendant’s residence rather than the county where the leased land is located. Edwards v. Bernstein, 231 Ky. 100 , 21 S.W.2d 133, 1929 Ky. LEXIS 220 ( Ky. 1929 ).

Where action was brought in Logan Circuit Court by lessee of premises situate in Russellville, Kentucky, against lessor residing in Fayette County, for declaration of rights under his lease, the action being “in effect one for the construction of the contract and its enforcement,” was a transitory action and could not be maintained in the Logan Circuit Court when defendant did not reside in that county, was not summoned there and properly objected to venue of the action. Edwards v. Bernstein, 231 Ky. 100 , 21 S.W.2d 133, 1929 Ky. LEXIS 220 ( Ky. 1929 ).

Action by lessor against lessee for violation of lease was an action ex contractu, the venue of which is governed by KRS 452.480 and not by this section. Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ).

Kentucky Energy and Environment Cabinet (Cabinet) properly denied a coal company’s application to renew the company’s coal mining permit because (1) a bona fide property dispute that the Cabinet could not adjudicate existed over the company’s right of entry to the subject land, due to the expiration of the company’s lease pursuant to a prior judgment, and (2) the Cabinet had no legal authority to adjudicate the property dispute, which could only be adjudicated by the court which issued the prior judgment. Ky. S. Coal Corp. v. Ky. Energy & Env't Cabinet Formerly the Envtl. & Pub. Prot. Cabinet, 396 S.W.3d 804, 2013 Ky. LEXIS 86 ( Ky. 2013 ).

15. In Personam Relief.

Performance of an equitable obligation, or an obligation that may be enforced by an action in personam and not in rem, may be enforced wherever the chancellor may obtain personal jurisdiction of the person, without regard to the fact that the real estate to which such objection relates is situated in another state. McQuerry v. Gilleland, 89 Ky. 434 , 12 S.W. 1037 ( Ky. 1890 ).

Action for injunctive relief by bondholders against corporation and mortgage trustee where corporation entered into contract for transfer of part of mortgaged property free of mortgage lien with consent of trustee could be maintained in the Circuit Court of any county where the defendants could be served with summons, or where their appearance was entered, since such action is controlled by KRS 452.480 and not by this section. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

An action under KRS 418.040 to KRS 418.090 to obtain an injunction and a declaration of rights under a mortgage could properly be maintained in the Circuit Court of any county where the defendants could be served with summons or where their appearance was entered. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

16. Waiver.

Where an action for the recovery of money, within the jurisdiction of the court, is not brought in the proper county, as fixed by this section, the action may be dismissed where the objection is properly taken, but, where defendant does not object to the venue the matter is waived. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

Parties to action by stockholders of defunct corporation to sell mineral leases held by corporation and distribute proceeds to stockholders could not waive jurisdiction by consent under KRS 452.010 out of county where land was situated, since this section localizes actions relating to real estate. Shadoin v. Sellars, 223 Ky. 751 , 4 S.W.2d 717, 1928 Ky. LEXIS 431 ( Ky. 1928 ).

Lender’s filing of a foreclosure action in the Circuit Court by itself did not constitute waiver of its arbitration rights because Kentucky was a judicial foreclosure state requiring the filing of a Circuit Court action to pursue foreclosure as a remedy. Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 2008 Ky. LEXIS 146 ( Ky. 2008 ).

Cited:

De Haven v. De Haven’s Adm’r, 104 Ky. 41 , 20 Ky. L. Rptr. 663 , 46 S.W. 215, 1898 Ky. LEXIS 129 ( Ky. 1898 ); Tilford v. Dotson, 106 Ky. 7 55, 51 S.W. 583, 1899 Ky. LEXIS 103 (1899); Taylor v. United States Bldg. & Loan Assn’s Assignee, 110 Ky. 84 , 22 Ky. L. Rptr. 1 560 , 60 S.W. 927, 1901 Ky. LEXIS 56 ( Ky. 1901 ); Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1 445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Dawkins v. Hough, 112 Ky. 855 , 23 Ky. L. Rptr. 1997 , 66 S.W. 1047, 1902 Ky. LEXIS 239 ( Ky. 1902 ); Chinn v. Curtis, 71 S.W. 923, 24 Ky. L. Rptr. 1563 (1903); Louisville Bldg. & Loan Ass’n v. Smith’s Adm’r, 90 S.W. 1080, 28 Ky. L. Rptr. 980 (1906); Galloway v. Craig, 122 Ky. 447 , 29 Ky. L. Rptr. 1, 92 S.W. 320, 1906 Ky. LEXIS 70 ( Ky. 1906 ); Daniel v. New Era Land Co., 137 Ky. 535 , 126 S.W. 108, 1910 Ky. LEXIS 596 ( Ky. 1910 ); Boreing v. Melcon, 159 Ky. 14 , 166 S.W. 612, 1914 Ky. LEXIS 729 ( Ky. 1914 ); Bronaugh v. Commonwealth, 188 Ky. 103 , 221 S.W. 531, 1920 Ky. LEXIS 240 ( Ky. 1920 ); Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ); Britton v. Davis, 268 Ky. 7 , 103 S.W.2d 665, 1937 Ky. LEXIS 408 ( Ky. 1937 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Kentucky Utilities Co. v. Steenman, 283 Ky. 317 , 141 S.W.2d 265, 1940 Ky. LEXIS 325 ( Ky. 1940 ); Ferree v. Ferree, 285 Ky. 825 , 149 S.W.2d 719, 1941 Ky. LEXIS 476 ( Ky. 1941 ); Lehman v. Williams, 301 Ky. 729 , 193 S.W.2d 161, 1946 Ky. LEXIS 56 3 ( Ky. 1946 ); Richardson v. Hays, 303 Ky. 674 , 198 S.W.2d 976, 1947 Ky. LEXIS 534 (1947); Poulos v. Stewart, 313 Ky. 812 , 233 S.W.2d 994, 1950 Ky. LEXIS 993 ( Ky. 1950 ).

Research References and Practice Aids

Kentucky Law Journal.

Matthews, May an Action for Trespass to Land in Another State Be Maintained in Kentucky? 28 Ky. L.J. 462 (1940).

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Northern Kentucky Law Review.

Philipps, The Kentucky Long Arm Statute: How “Long” Is It?, 4 N. Ky. L. Rev. 65 (1977).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Showing that the Venue is Improper or no Jurisdiction of Subject, Form 39.08.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Damages for Obstruction of Roadway, Form 356.09.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Intentional Trespass (General Form), Form 304.01.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Possession or Recovery of Real Property Held by One Who Entered Unlawfully, Form 305.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse against Decedent Spouse’s Grantee, Form 254.05.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Vendor and Purchaser, § 314.00.

452.405. Where action for recovery of fine or forfeiture, against public officer or on official bond must be brought.

Except as otherwise provided by statute, actions shall be brought in the county where the cause of action, or some part thereof, arose:

  1. For the recovery of a fine, penalty, or forfeiture, imposed by a statute; but if the offense for which the claim is made be committed on a watercourse or road which is the boundary of two (2) counties, the action may be brought in either of them;
  2. Against a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty;
  3. Upon the official bond of a public officer.

History. C. C. 63: trans. Acts 1952, ch. 84, § 1; 1996, ch. 1, § 104, effective January 11, 1996; 1996, ch. 2, § 42, effective January 11, 1996.

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts chs. 1 and 2 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1. Construction.

Provisions of subsection (2) of this section are not limited to state officers, but apply to all public officers for acts by them in virtue or under color of their office, or for neglect of official duty. Layne v. Sharp, 105 S.W. 373, 32 Ky. L. Rptr. 33 (1907).

2. Application.

Where sheriff accepted a restoration bond upon executing an order enforcing a judgment in favor of plaintiffs, the venue of an action to recover on the bond is determined by KRS 452.480 and not by this section. Couch v. Watkins, 266 S.W.2d 342, 1954 Ky. LEXIS 815 ( Ky. 1954 ).

This section is not applicable to proceeding by governor for removal of peace officer. Cornett v. Chandler, 307 S.W.2d 918, 1957 Ky. LEXIS 122 ( Ky. 1957 ).

Appreciable harm arose only when the action directly affected the individual by denying him a right or imposing upon him an obligation; while the Cabinet took actions in Franklin County, any harm to a corporation from the alleged failure of the Cabinet to follow statutory requirements occurred at the corporation’s principal place of business in Boone County. Thus, Boone County was a proper venue for the action. Cmty. Servs. Project, Inc. v. BAWAC Cleaning Servs., 226 S.W.3d 852, 2007 Ky. App. LEXIS 162 (Ky. Ct. App. 2007).

3. Recovery of Penalties.

Where jurisdiction was questioned on ground that it was a criminal proceeding, the common pleas court of Jefferson County had jurisdiction of an action to recover fine imposed against an insurance company for the illegal collection of a premium. Com. v. Sherman, 85 Ky. 686 , 4 S.W. 790, 9 Ky. L. Rptr. 218 , 1887 Ky. LEXIS 88 ( Ky. 1887 ).

Venue of penal actions brought pursuant to former criminal code, to recover penalty for violation of a law that required the use of the word “incorporated” in connection with all printed or advertising matter used by it, was in the county in which the corporation had its principal office or place of business, or an agent designated by it for the service of process, without regard to the county in which the printing or advertising may have been circulated or distributed. Commonwealth v. Remington Typewriter Co., 32 Ky. L. Rptr. 189 (1907).

Under law making a corporation refusing to make required reports guilty of a misdemeanor, the offense is committed when it fails to make the report to the auditor at his office in Frankfort, and action to recover penalty must be brought in Franklin County. Commonwealth v. Morrell Refrigerator Co., 129 Ky. 738 , 112 S.W. 860, 1908 Ky. LEXIS 216 ( Ky. 1908 ).

Commonwealth could not maintain penal action against foreign corporation for failure to file articles of incorporation in Franklin County, where corporation did business exclusively in Bell County, since, under this section, the Bell Circuit Court had exclusive jurisdiction of the action. Kentucky Straight Creek Coal Co. v. Commonwealth, 304 Ky. 247 , 200 S.W.2d 470, 1947 Ky. LEXIS 622 ( Ky. 1947 ).

4. Neglect of Official Duty.

Action against sheriff for failure to return execution within 30 days from the return day, as required by KRS 426.350 , is in the court whence the execution is issued. Adams v. Simmons, 65 S.W. 152, 23 Ky. L. Rptr. 1389 , 1901 Ky. LEXIS 369 (Ky. Ct. App. 1901). See Ingram v. Turner, 51 S.W. 148, 21 Ky. L. Rptr. 283 (1899).

In action filed to compel the district committee to meet, canvass the voters, and ascertain the result, which it is alleged they, or a majority of them, have failed to do, failure of duty occurred as much in Laurel County, where the action was instituted, as elsewhere in the eleventh congressional district. Mason v. Byrley, 84 S.W. 767, 26 Ky. L. Rptr. 487 (1904).

Since there was no law requiring the director of Jefferson County correctional services department to send a letter to Frankfort, and there was no penalty associated with delivering the letter in Franklin County, but the letter was merely his manner of giving official notification to the Secretary of Corrections Cabinet (now Department of Corrections) that Jefferson County could no longer accommodate state prisoners who were brought to Jefferson County for court appearances, the proper venue in action for declaratory judgment to interpret KRS 441.025 governing incarceration of prisoners was in Jefferson County since if there was a failure to comply with KRS 441.025 , it occurred in Jefferson County. Wilson v. Frey, 655 S.W.2d 37, 1983 Ky. App. LEXIS 336 (Ky. Ct. App. 1983).

5. Act Done Under Color of Office.

Plaintiff could not bring suit in Franklin Circuit Court to recover excessive costs allegedly taxed by master commissioner of Jefferson Circuit Court who sold realty in satisfaction of lien in favor of plaintiff, since under this section such an action must be brought in county where the cause of action, or some part of it arose, the master commissioner falling within this section’s classification of a public officer. Commonwealth use of Bouteiller v. Ray, 275 Ky. 758 , 122 S.W.2d 750, 1938 Ky. LEXIS 496 ( Ky. 1938 ).

6. Legislative District Reapportionment.

The proper venue for challenging the constitutionality of legislative district reapportionment was in the county in which the alleged injury occurred, rather than the county where the redistricting statute was adopted. Fischer v. State Bd. of Elections, 847 S.W.2d 718, 1993 Ky. LEXIS 52 ( Ky. 1993 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Louisville & N. R. Co. v. Commonwealth, 112 Ky. 635 , 23 Ky. L. Rptr. 1900 , 66 S.W. 505, 1902 Ky. LEXIS 205 ( Ky. 1902 ); Louisville Tobacco Whse. Co. v. Wood & Bumgardner, 82 S.W. 456, 1904 Ky. LEXIS 345 , 26 Ky. L. Rptr. 769 (1904); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Daniel v. New Era Land Co., 137 Ky. 535 , 126 S.W. 108, 1910 Ky. LEXIS 596 ( Ky. 1910 ); Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ); General Motors Acceptance Corp. v. Hodge, 485 S.W.2d 894, 1972 Ky. LEXIS 145 ( Ky. 1972 ).

Research References and Practice Aids

Cross-References.

Executions, venue of motion or action against officer collecting money under, KRS 426.360 .

Kentucky Law Journal.

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

452.410. Where action concerning will must be brought.

A proceeding to establish, or an action to set aside, a will must be brought in the county in which the will, if valid, ought, according to law, to be recorded.

History. C. C. 64: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ).

Research References and Practice Aids

Cross-References.

Recording of wills, KRS 394.300 .

Kentucky Law Journal.

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.415. Where action involving estate of deceased persons or assigned estates must be brought.

Any action to settle the estate of a deceased person, of a person, corporation or company assigned for the benefit of creditors, or any estate in the hands of a receiver of court must be brought in the county in which the personal representative, assignee or receiver qualified. For the purpose of a settlement of such estates, the personal representative, assignee or receiver, shall have the same power to sue as had the deceased person, the assignor, or owner of the estate in such receiver’s hands, but any action brought by a personal representative, assignee or receiver, for the recovery of or sale of under a mortgage, deed of trust or other lien, or for charges upon, or injury to real estate or an estate or interest therein, must be brought in the county in which the real estate is situated, and not elsewhere.

History. C. C. 65; Acts 1898, ch. 59; trans. Acts 1952, ch. 84, § 1; 1968, ch. 152, § 166.

NOTES TO DECISIONS

1. Construction.

This section does not grant authority to transfer an action from one court to another. Knuckles v. Day, 303 Ky. 459 , 198 S.W.2d 48, 1946 Ky. LEXIS 876 ( Ky. 1946 ).

2. Jurisdiction.

Where husband left his home in Edmonson County, at which he had resided over 60 years, his wife remaining there, and went to daughter’s home in Hardin County, taking with him nothing but the clothing he wore, and a few months thereafter died there, the court was authorized to conclude that there had been no change of residence, though there was evidence to show that he said when he went to his daughter’s home that he had come there to remain until he died; therefore the appointment of an administrator by the Hardin County Court was void, and the Circuit Court of that county had no jurisdiction of an action to settle the decedent’s estate. Jones' Adm'r v. Lay, 66 S.W. 720, 23 Ky. L. Rptr. 2113 (1902).

3. Settlement of Decedent’s Estate.

The county in which a will was recorded and in which the personal representative qualified, was the proper county in which to bring a suit for the sale of land and distribution of the proceeds directed by will. Flint v. Spurr, 56 Ky. 499 , 1856 Ky. LEXIS 51 ( Ky. 1856 ) (decided under prior law).

Where action was properly brought in Oldham County for settlement and partition of a decedent’s estate, the court, having jurisdiction for settlement and partition of the estate, had incidental jurisdiction to partition lands in other counties. De Haven v. De Haven's Adm'r, 104 Ky. 41 , 46 S.W. 215, 20 Ky. L. Rptr. 663 , 1898 Ky. LEXIS 129 ( Ky. 1898 ).

Where action is properly brought in Crittenden Circuit Court, primarily to settle decedent’s estate, bank, claiming and holding a part of the trust estate which it had wrongfully obtained from the decedent as guardian of his ward, being directly interested in the subject matter of the action, was properly made to account therefor in the action, although such bank is situated and does business in McCracken County. Taylor v. Harris' Adm'r, 164 Ky. 654 , 176 S.W. 168, 1915 Ky. LEXIS 436 ( Ky. 1915 ).

Action by heirs and administrator de bonis non of estate of deceased resident of Bullitt County, against the personal representative of the estate of the former administratrix who died a resident of Jefferson County, praying that the accounts of the latter as personal representative be settled and for an account and settlement of the estate of the Bullitt County decedent, was properly brought in Bullitt County where the administrator de bonis non qualified. Smithers' Adm'r v. Schmitt, 254 Ky. 695 , 72 S.W.2d 30, 1934 Ky. LEXIS 126 ( Ky. 1934 ).

In suit by wife which sought declaratory judgment that deceased husband was not a person of unsound mind on date of marriage, and that she was entitled to all of deceased husband’s property, if suit was one involving real estate it would be governed by KRS 452.400 , or if it was action to settle estate of deceased person it would be governed by this section and KRS 452.420 and would not be a transitory action as would be governed by KRS 452.480 . Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

4. Settlement of Corporation Affairs.

Court which has obtained jurisdiction to wind up the affairs of an insolvent corporation, has jurisdiction to decree a sale of its mortgaged land, though situated in another county, where the mortgagee is a party to the action, and has filed a cross petition praying foreclosure, and no settlement of the corporate affairs can be made without such sale. Mechanics' Trust Co. v. Cobb, 20 S.W. 391, 14 Ky. L. Rptr. 444 (1892).

Where action is brought under this section to settle affairs of a corporation, the assignee is not authorized to file amended petition, and take judgments for debts due the assignor, notwithstanding the debtor was a stockholder and might ultimately get some part of the assigned estate as a stockholder. Louisville Bldg. & Loan Ass'n v. Smith's Adm'r, 90 S.W. 1080, 28 Ky. L. Rptr. 980 (1906).

In an action brought to settle the affairs of an insolvent insurance corporation in the hands of a receiver, upon cross petition of the receiver against the policyholders, who are also stockholders seeking to enforce their statutory liability, a court of equity will take jurisdiction to grant the relief sought, though some of the policyholders reside and are summoned in other counties, as such relief is incidental to the main object of the action, will prevent a multiplicity of suits, and avoid the great expense attendant upon bringing separate suits at law against each policyholder. White v. Harbeson, 169 Ky. 224 , 183 S.W. 475, 1916 Ky. LEXIS 663 ( Ky. 1916 ) ( Ky. 1916 ).

In action by receiver to settle the affairs of an insolvent corporation, where receiver, by cross petition, sought to collect from delinquent subscribers their unpaid stock subscriptions, the court where original action was brought, has jurisdiction, in the same action, to grant the relief sought, notwithstanding, the delinquent subscribers all reside and are summoned in a county or counties other than that in which the action is brought, and the liability of each of them is separate and distinct, and though the receiver has a concurrent remedy at law by the institution of actions at law against each subscriber in the county of his residence. Lock v. Stout, 173 Ky. 304 , 191 S.W. 90, 1917 Ky. LEXIS 460 ( Ky. 1917 ).

Fayette County Circuit Court had jurisdiction to appoint receiver and order the sale of mining property in Perry County to satisfy a lien in receivership proceedings against corporation where the parties voluntarily submitted themselves to the jurisdiction of the Fayette court without making any question or objection as to venue. Fourseam Block Collieries Co. v. John P. Gorman Coal Co., 259 Ky. 132 , 82 S.W.2d 223, 1935 Ky. LEXIS 284 ( Ky. 1935 ).

Where ancillary receiver appointed in Franklin Circuit Court action, attempted to proceed by answer and cross petition to recover an indebtedness from creditor doing business in Jefferson County, court held that since the relationship of debtor and creditor exists, based upon a contractual relationship, and, since the parties against whom the demand is made have no community of interest and are not an integral part of the organization, the Franklin Circuit Court is without jurisdiction. Marmor Ins. Agency v. Ardery, 240 S.W.2d 832, 1951 Ky. LEXIS 1021 ( Ky. 1951 ).

5. Sale of Land.

Where object of action is to settle an insolvent estate, the court may decree a sale of land situated in another county than that in which the action is pending. Fishback v. Green, 87 Ky. 107 , 7 S.W. 881, 9 Ky. L. Rptr. 959 , 1888 Ky. LEXIS 46 ( Ky. 1888 ).

6. Injury to Real Estate.

Rule that where jurisdiction has attached for one purpose all questions pertinent to the issues involved between the parties may be determined in that suit is not applicable to actions for injury to real estate. Day v. Knuckles, 297 Ky. 157 , 179 S.W.2d 220, 1944 Ky. LEXIS 689 ( Ky. 1944 ).

Where the remainder beneficiaries of a trust sued the administrator of the estate of the life tenant for waste committed during the life tenancy, the action was principally for damage to real estate and had to be instituted in the county in which the land was situated. Meredith v. Ingram, 444 S.W.2d 551, 1969 Ky. LEXIS 216 ( Ky. 1969 ).

7. Enforcement of Lien.

Where there is no suit pending to settle the estate of a decedent, an action to enforce a mortgage lien against the land of a decedent should be brought in the county where the land in situated. Shields v. Yellman, 100 Ky. 655 , 39 S.W. 30, 18 Ky. L. Rptr. 1092 , 1897 Ky. LEXIS 42 ( Ky. 1897 ).

Grayson Circuit Court was without jurisdiction to enforce a lien on land in Edmonson County, in action brought to settle the estate of the deceased owner and holder of the note. McDowell v. Phelps' Adm'r, 229 Ky. 749 , 17 S.W.2d 1023, 1929 Ky. LEXIS 839 ( Ky. 1929 ).

8. Action on Note.

Defendant in an action in Fleming County is not entitled to plead an alleged claim due defendant from plaintiff as administratrix, as a setoff to the note in suit, against the plaintiff administratrix, who qualified as such in Bourbon County, suing in her own right. Hurst v. Hamilton, 44 S.W. 432, 19 Ky. L. Rptr. 1753 (1898).

Cited:

Citizens’ Nat’l Bank v. Boswell’s Adm’r, 93 Ky. 92 , 14 Ky. L. Rptr. 1 7, 19 S.W. 174, 1892 Ky. LEXIS 57 ( Ky. 1892 ); Perkins v. McCarley, 97 Ky. 43 , 16 Ky. L. Rptr. 801 , 29 S.W. 867, 1895 Ky. LEXIS 146 ( Ky. 1895 ); Hilton v. Hilton’s Adm’r, 110 Ky. 522 , 22 Ky. L. Rptr. 1 934, 62 S.W. 6, 1901 Ky. LEXIS 106 ( Ky. 1901 ); Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Galloway v. Craig, 122 Ky. 447 , 29 Ky. L. Rptr. 1, 92 S.W. 320, 1906 Ky. LEXIS 70 ( Ky. 1906 ); Dinning v. Conn’s Adm’r, 124 Ky. 623 , 30 Ky. L. Rptr. 855 , 99 S.W. 914, 1907 Ky. LEXIS 223 ( Ky. 1907 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Britton v. Davis, 268 Ky. 7 , 103 S.W.2d 665, 1937 Ky. LEXIS 408 ( Ky. 1937 ); Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ); Kentucky Utilities Co. v. Steenman, 283 Ky. 317 , 141 S.W.2d 265, 1940 Ky. LEXIS 325 ( Ky. 1940 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Vendor and Purchaser, § 314.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Partition and Judicial Sales, § 318.00.

452.420. Where action for distribution, partition or sale of decedent’s estate must be brought.

An action for the distribution of the estate of a deceased person, or for its partition among his heirs, or for the sale, for payment of his debts, of property descended from or devised by him, must be brought in the county in which his personal representative was qualified.

History. C. C. 66: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Recovery of Estate.

It was not necessary to decide the question of venue in an action to recover all the estate of deceased as having been obtained by fraud and undue influence, where the administrator was not sued either in the county in which he resided, was qualified, or was summoned. Fleece v. Shackelford, 204 Ky. 841 , 265 S.W. 460, 1924 Ky. LEXIS 588 ( Ky. 1924 ).

2. Settlement of Decedent’s Estate.

Venue of action by a ward against the personal representative and heirs of his guardian to subject estate descended to the heirs to the payment of the amount due the ward by the guardian, is in the county in which the personal representative qualified. Willis' Adm'r v. Roberts' Adm'r, 90 Ky. 122 , 13 S.W. 358, 11 Ky. L. Rptr. 929 , 1890 Ky. LEXIS 45 ( Ky. 1890 ).

An action for the sale of land belonging to the estate of a deceased person must be brought in the county where the personal representative qualified if it involves a settlement of the estate and payment of debts, or distribution or partition among the heirs. Walker v. Yowell's Adm'r, 94 Ky. 205 , 21 S.W. 873, 14 Ky. L. Rptr. 829 , 1893 Ky. LEXIS 26 ( Ky. 1893 ).

Where action was properly brought in Oldham County for settlement and partition of a decedent’s estate, it was held that the court, having jurisdiction for settlement and partition of the estate, had incidental jurisdiction to partition lands in other counties. De Haven v. De Haven's Adm'r, 104 Ky. 41 , 46 S.W. 215, 20 Ky. L. Rptr. 663 , 1898 Ky. LEXIS 129 ( Ky. 1898 ).

Venue in action by administrator of a decedent and by present guardian of an infant of whom deceased was guardian at time of his death, brought against his heirs at law, creditors, and the surety in his bond as guardian, for a settlement of the estate, his accounts as such guardian, and to recover for the present guardian the amount due the ward, is in the county in which the personal representative of the decedent qualified and in which the decedent qualified as guardian of the ward. Taylor v. Harris' Adm'r, 164 Ky. 654 , 176 S.W. 168, 1915 Ky. LEXIS 436 ( Ky. 1915 ).

Action by devisee in Rockcastle Circuit Court against the executor who qualified in Breckenridge County to recover legatee’s share in the estate should have been brought in the county in which the executor qualified, so that motion requiring the legatee to elect whether to sue defendant individually or as executor, and special demurrer on ground of misjoinder did not waive the question of jurisdiction. Britton v. Davis, 268 Ky. 7 , 103 S.W.2d 665, 1937 Ky. LEXIS 408 ( Ky. 1937 ).

In suit by wife which sought declaratory judgment that deceased husband was not a person of unsound mind on date of marriage, and that she was entitled to all of deceased husband’s property, if suit was one involving real estate it would be governed by KRS 452.400 , or if it was action to settle estate of deceased person it would be governed by KRS 452.415 and this section and would not be a transitory action as would be governed by KRS 452.480 . Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

3. Jurisdiction.

In an action for the settlement and partition of the estate of a deceased married woman by her heirs at law, the venue is in the county where her representative qualified, and fact that incidentally other questions arise in an action localized by this section does not oust the first jurisdiction, for the rule is that when jurisdiction for one purpose properly attaches, the court will grant full relief among the parties on all pertinent questions. Hamilton's Adm'r v. Riney, 140 Ky. 476 , 131 S.W. 287, 1910 Ky. LEXIS 306 ( Ky. 1910 ).

4. Sale of Land.

An action under subsection (2) of KRS 389.020 (repealed), for the sale of land owned jointly by plaintiffs and defendants as devisees under a will, and for a distribution of the proceeds, upon the ground that the property could not be divided without materially impairing its value, was properly brought in the county in which the land was situated, although that was not the county in which the personal representative of the testator was qualified. Perkins v. McCarley, 97 Ky. 43 , 29 S.W. 867, 16 Ky. L. Rptr. 801 , 1895 Ky. LEXIS 146 ( Ky. 1895 ).

An action brought by part of the devisees against the other devisees seeking a sale and division of the proceeds of sale of lands devised under the will must be brought in the county where the personal representative qualified; such action being what might be termed an action for partition, but for partition by sale rather than allotment in kind. Boreing v. Melcon, 159 Ky. 14 , 166 S.W. 612, 1914 Ky. LEXIS 729 (Ky.), modified, 159 Ky. 623 , 167 S.W. 870, 1914 Ky. LEXIS 833 ( Ky. 1914 ).

Under this section, Circuit Court of Perry County, where administratrix was qualified, had jurisdiction to order sale of land situated in Leslie County. Kilburn v. Holliday, 295 Ky. 843 , 175 S.W.2d 516, 1943 Ky. LEXIS 347 ( Ky. 1943 ).

Cited:

Citizens’ Nat’l Bank v. Boswell’s Adm’r, 93 Ky. 92 , 14 Ky. L. Rptr. 1 7, 19 S.W. 174, 1892 Ky. LEXIS 57 ( Ky. 18 92); De Haven v. De Haven’s Adm’r, 104 Ky. 41 , 20 Ky. L. Rptr. 663 , 46 S.W. 215, 1898 Ky. LEXIS 129 ( Ky. 18 98); Hilton v. Hilton’s Adm’r, 110 Ky. 522 , 22 Ky. L. Rptr. 1 934, 62 S.W. 6, 1901 Ky. LEXIS 106 ( Ky. 1901 ); Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Graham’s Heirs v. Kitchen, 118 Ky. 18, 25 Ky. L. Rptr. 2224 , 80 S.W. 464, 1904 Ky. LEXIS 11 ( Ky. 1904 ); Goldsmith’s Adm’r v. Hieatt, 90 S.W. 259, 28 Ky. L. Rptr. 741 (1906); Galloway v. Craig, 122 Ky. 447 , 29 Ky. L. Rptr. 1, 92 S.W. 320, 1906 Ky. LEXIS 70 ( Ky. 1906 ); Dinning v. Conn’s Adm’r, 124 Ky. 623 , 30 Ky. L. Rptr. 855 , 99 S.W. 914, 1907 Ky. LEXIS 223 ( Ky. 1907 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Shadoin v. Sellars, 223 Ky. 751 , 4 S.W.2d 717, 1928 Ky. LEXIS 431 ( Ky. 1928 ); McDowell v. Phelps’ Adm’r, 229 Ky. 749 , 17 S.W.2d 1023, 1929 Ky. LEXIS 839 ( Ky. 1929 ); Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ).

Research References and Practice Aids

Cross-References.

Settlement of trust estates and estates of deceased persons, KRS 378.100 , 395.510 to 395.550 .

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Vendor and Purchaser, § 314.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Partition and Judicial Sales, § 318.00.

452.425. Where action by ward against guardian must be brought.

An action by a ward against his guardian for a settlement of his accounts, for additional security, or for his removal, must be brought in the county in which the guardian was qualified.

History. C. C. 67: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Action to Surcharge Settlement.

Action to surcharge settlement made by plaintiff’s former guardian is properly brought, under this section, in the county in which the guardian qualified, and the court, as an incident, had jurisdiction to cancel a deed executed by the guardian conveying land to the ward located in another county. Dawkins v. Hough, 112 Ky. 855 , 66 S.W. 1047, 23 Ky. L. Rptr. 1997 , 1902 Ky. LEXIS 239 ( Ky. 1902 ).

Cited:

Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ).

Research References and Practice Aids

Cross-References.

Jurisdiction of county courts over guardians, KRS 387.020 .

Removal of guardians, KRS 387.090 .

Settlement of guardian’s account, KRS 387.175 .

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.430. Where action against Kentucky Board of Education must be brought.

An action against the Kentucky Board of Education, of this state, must be brought in the county that includes the seat of government.

History. C. C. 68: trans. Acts 1952, ch. 84, § 1; 1996, ch. 362, § 6, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Mills v. Buell, 685 S.W.2d 561, 1985 Ky. App. LEXIS 523 (Ky. Ct. App. 1985).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Actions Against a School Board or School Personnel, § 333.00.

452.435. Where action against prisoner or asylum inmate must be brought.

An action, not mentioned in KRS 452.400 to 452.425 , both inclusive, nor in KRS 452.440 , against a prisoner in this state, or a person confined in an asylum for persons of unsound mind in this state, must be brought in the county, if known, in which he resided, or claimed his residence, when confined.

History. C. C. 69: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Jurisdiction.

In a divorce action where the residence of the parties was an issue because the husband was confined at the time of the institution of the action in the penitentiary, there was ample proof to support the court’s finding that it had jurisdiction, but even if otherwise, such a finding of the court would not have rendered the judgment void, but only erroneous, and an attack upon it could not be made collaterally. Ferree v. Ferree, 285 Ky. 825 , 149 S.W.2d 719, 1941 Ky. LEXIS 476 ( Ky. 1941 ).

2. — Federal.

In action by Kentucky resident against Ohio resident, confined in Kentucky State Prison, this section does not control the venue of the action in federal court sitting in Kentucky, since venue is a matter of federal procedure governed exclusively by USCS, tit. 28, § 1391. Shaffer v. Tepper, 127 F. Supp. 892, 1955 U.S. Dist. LEXIS 3805 (D. Ky. 1955 ).

Cited:

Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.440. Where action upon return of “no property found” to be brought.

An action upon a return of no property found, pursuant to subsection (1) of KRS 426.381 , must be brought in the county in which the judgment is rendered, or in which the defendant resides or is summoned.

History. C. C. 70: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

Under this section, the plaintiff has the right to bring his action either in the county where the judgment was rendered, where the defendant resides, or the county where he may be summoned. Viall v. Walker, 248 Ky. 197 , 58 S.W.2d 415, 1933 Ky. LEXIS 219 ( Ky. 1933 ).

2. Jurisdiction.

Where allegations of the petition substantially meet the requirements of this section and KRS 426.381 , the court erred in sustaining general demurrer in action filed in Jefferson Circuit Court after return of execution “no property found,” to enforce payment of a judgment for money recovered in the quarterly court of Hopkins County. Martin v. Byrd, 42 S.W. 1112, 19 Ky. L. Rptr. 1030 (1897).

In action filed in Harrison Circuit Court, after return of “no property found,” to set aside a conveyance and subject the land to payment of the judgment, where answer and cross petition of lienholder sets up an execution levy on the land, a part of which lies in Harrison County, such action cannot be dismissed on motion of plaintiff so as to deprive the cross petitioner of the right to prosecute her claim. Chinn v. Curtis, 71 S.W. 923, 24 Ky. L. Rptr. 1563 (1903).

In suit filed in Laurel Circuit Court after a return “of no property found,” plaintiff was held authorized to make judgment debtor and a debtor of the judgment debtor parties defendant, though both he and the judgment debtor reside and are summoned in another county. Parks v. O. K. Jellico Coal Co., 136 Ky. 622 , 124 S.W. 868, 1910 Ky. LEXIS 521 ( Ky. 1910 ).

In an action under KRS 426.381 to enforce a judgment brought in the court in which original judgment was rendered on return of no property found, such court had jurisdiction to sell land of the judgment debtor located in another county and as a necessary incident to such jurisdiction, the additional power to bring before the court and adjudicate the rights of all persons asserting a lien or claim to the land. Noe v. Brock, 263 Ky. 37 , 91 S.W.2d 546, 1936 Ky. LEXIS 126 ( Ky. 1936 ).

3. Action to Quiet Title.

Where, in action filed in Jefferson County after return of no property found, attachment is issued and levied on land in Leslie County, Jefferson Circuit Court is without jurisdiction to try title to land in the adverse and hostile possession of third parties. Bramblett v. Couch, 105 S.W. 460, 32 Ky. L. Rptr. 311 (1907).

4. Fraudulent Conveyance.

Suit brought by a judgment creditor upon a return of no property found, to set aside a fraudulent conveyance of land and subject it to the payment of his judgment, must be brought in the county where the land or some part of it is situated. Williams v. Davenport, 181 Ky. 496 , 205 S.W. 551, 1918 Ky. LEXIS 545 ( Ky. 1918 ).

5. Action to Collect Fine.

Where defendant was convicted in police court and on appeal to the Circuit Court was again found guilty and fined, a suit in the nature of a bill of discovery by the city attorney to collect the fine for the benefit of the city was properly brought in the Circuit Court of the county in which judgment was rendered after execution was returned “no property found.” Commonwealth use of Pineville v. Partin, 223 Ky. 405 , 3 S.W.2d 779, 1928 Ky. LEXIS 351 ( Ky. 1928 ).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Life Ins. Co. v. Edmonds, 247 Ky. 138 , 56 S.W.2d 689, 1933 Ky. LEXIS 346 ( Ky. 1933 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.445. Where action against bank or insurance company may be brought.

Excepting the actions mentioned in sections KRS 452.400 to 452.420 both inclusive, and in KRS 452.440 and KRS 452.465 , an action against an incorporated bank or insurance company may be brought in the county in which its principal office or place of business is situated; or, if it arise out of a transaction with an agent of such corporation, it may be brought in the county in which such transaction took place.

History. C. C. 71: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

This section is cumulative with KRS 452.450 , and the two (2) sections must be read together. Bancokentucky Co. v. Weil, 258 Ky. 243 , 79 S.W.2d 977, 1935 Ky. LEXIS 149 ( Ky. 1935 ).

2. Application.

This section applies to foreign as well as to domestic corporations. Employers' Indem. Co. v. Duncan, 159 Ky. 460 , 167 S.W. 414, 1914 Ky. LEXIS 814 ( Ky. 1914 ).

3. Foreign Insurance Company.

Russell Circuit Court did not have jurisdiction of an action against a foreign insurance company, where the action did not arise out of a transaction with an agent in Russell County, where the company’s principal office or place of business was not situated in Russell County, and where the company was not summoned in Russell County. Life Ins. Co. v. Edmonds, 247 Ky. 138 , 56 S.W.2d 689, 1933 Ky. LEXIS 346 ( Ky. 1933 ).

Jefferson Circuit Court should have sustained defendant foreign insurance company’s motion to quash the service and the return of the summons, since that court did not have jurisdiction of the action against the company, because the company did not have any principal office or place of business in Jefferson County and the action did not arise out of a transaction with defendant’s agent in Jefferson County. Bankers' Nat'l Life Ins. Co. v. Stone, 254 Ky. 682 , 72 S.W.2d 49, 1934 Ky. LEXIS 134 ( Ky. 1934 ).

4. — Transaction with Agent.

Where it appeared that the application for the insurance in question was made to agents of the defendant company by a firm, at the request and as agents of plaintiff, by letter from such firm sent from Grant County by mail to the agent of the defendant in Kenton County, while the contract was not complete until the acceptance of the policy by the insured or his agent, the issuance of the policy by the company’s agent in Kenton County was a transaction there, with the agents of the company, out of which the action arose. Sun Mutual Ins. Co. v. Crist, 39 S.W. 837, 19 Ky. L. Rptr. 305 , 1897 Ky. LEXIS 266 (Kan. Ct. App. 1897).

Under this section, an action may be maintained against an insurance company having its principal office in New York upon an adjustment of a loss made by its agent in this state in the county where such adjustment took place, although the policy was issued to a citizen of West Virginia in that state upon property located there. Mutual Fire Ins. Co. v. Hammond, 106 Ky. 386 , 50 S.W. 545, 20 Ky. L. Rptr. 1944 , 1899 Ky. LEXIS 51 ( Ky. 1899 ).

Where plaintiff sued for the value of services as agent under a contract of employment made in McCracken County with defendant insurance company through its president, defendant’s principal place of business being in Jefferson County, plaintiff could sue in McCracken County where the transaction took place, the president being an agent of the company within the statute. Ward v. Citizens' Life Ins. Co., 131 Ky. 129 , 114 S.W. 751, 1908 Ky. LEXIS 116 ( Ky. 1908 ).

Where insurance policy provided that it would not be in force until initial premium was paid, and policy was received by insured, was made in county in which insurer’s agent collected the premium and delivered the policy, beneficiary could maintain action in county in which policy was made against reinsuring company which entered into reinsurance agreement with then insolvent issuing company after insured’s death. Kentucky Home Life Ins. Co. v. Johnson, 263 Ky. 787 , 93 S.W.2d 863, 1936 Ky. LEXIS 251 ( Ky. 1936 ).

Where the insured brought suit against the insurance carrier for an overpayment of premium, venue of the action was in the county in which the insured had contracted with the agent of the insurance carrier. Spurlin v. Ranier, 457 S.W.2d 491, 1970 Ky. LEXIS 208 ( Ky. 1970 ).

5. — Performance of Contract.

Provisions of this section are cumulative and are not exclusive of KRS 452.450 , hence, Bracken Circuit Court had jurisdiction of action against foreign insurance corporation whose principal office in Kentucky was in Jefferson County, since the contract sued was to be performed in Bracken County. Ocean Acci. & Guarantee Corp. v. Milford Bank, 236 Ky. 457 , 33 S.W.2d 312, 1930 Ky. LEXIS 765 ( Ky. 1930 ).

Whitley Circuit Court had jurisdiction of suit on policy insuring race horses against death, where insurance contract was to be performed at insured’s residence in Whitley County. Insurance Co. of North America v. Hopper, 253 Ky. 402 , 69 S.W.2d 728, 1934 Ky. LEXIS 673 ( Ky. 1934 ).

The place of performance does not prevail over the place where an insurance contract was made so as to take precedence over the place of the making in determining questions of venue. Arrowood v. Duff, 287 Ky. 107 , 152 S.W.2d 291, 1941 Ky. LEXIS 507 ( Ky. 1941 ).

There was no fair inference that a performance bond was to be performed in the obligee’s principal place of business in Whitley County, Kentucky, such as would give jurisdiction to Whitley County in a suit on the bond, where a contract and a performance bond on the contract were executed in Tennessee and the work contracted for was to be performed in Tennessee and where the surety had no office in Whitley County. T.C. Young Constr. Co. v. Hartford Acci. & Indem. Co., 441 S.W.2d 781, 1969 Ky. LEXIS 332 ( Ky. 1969 ).

6. — Transitory Action.

Admission by insurance company when sued, that it had no principal office or place of business in this state, that the transaction out of which the action arose did not take place with its agent in any county of the state, but was made in another state, together with the service of summons upon the insurance commissioner of this state, gave the Franklin Circuit Court jurisdiction of the action and parties, since in such a state of case the action is not localized by this section, but is governed by the provisions of the section applicable to transitory action. Barnes v. Union Cent. Life Ins. Co., 168 Ky. 253 , 182 S.W. 169, 1916 Ky. LEXIS 550 ( Ky. 1916 ).

Where a foreign insurance company had complied with provisions of law that provided for adoption of resolution consenting to service of process on any agent of the company in the state or on the insurance commissioner and it has no principal office or place of business in this state, and the cause of action did not arise out of a transaction with the company’s agent in any county in this state, a suit against the company is a transitory action and may be brought in the county of the insured’s residence, and process may be served upon the insurance commissioner. South v. Continental Casualty Co., 170 Ky. 249 , 185 S.W. 858, 1916 Ky. LEXIS 42 ( Ky. 1916 ).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Combs v. Hargis Bank & Trust Co., 234 Ky. 202 , 27 S.W.2d 955, 1930 Ky. LEXIS 147 ( Ky. 1930 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ); Gross v. Citizens Fidelity Bank, 867 S.W.2d 212, 1993 Ky. App. LEXIS 161 (Ky. Ct. App. 1993).

Research References and Practice Aids

Cross-References.

Consent to service of process and procedure for service on foreign or alien insurer, KRS 304.3-230 .

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Recover on Fire Policy on a Building, Form 194.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insurance, § 194.00.

452.450. Where tort or contract action against corporation must be brought.

Excepting the actions mentioned in KRS 452.400 to 452.420 both inclusive, and in KRS 452.430 , 452.440 , 452.445 , 452.455 , 452.465 and 452.475 , an action against a corporation which has an office or place of business in this state, or a chief officer or agent residing in this state, must be brought in the county in which such office or place of business is situated or in which such officer or agent resides; or, if it be upon a contract, in the above-named county, or in the county in which the contract is made or to be performed; or, if it be for a tort, in the first-named county, or the county in which the tort is committed.

History. C. C. 72: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Purpose.

Manifestly, the purpose of this section is to authorize actions against corporations that have committed wrongful acts, for which an action will lie, in the county in which such tort was committed, and by the service of summons on the president of the company in Jefferson County, the Estill Circuit Court acquired jurisdiction. Winn v. Carter Dry-Goods Co., 102 Ky. 370 , 43 S.W. 436, 19 Ky. L. Rptr. 1418 , 1897 Ky. LEXIS 109 ( Ky. 1897 ).

2. Construction.

This section contemplates that the corporation is doing business in the particular county to such an extent that it is actually present there and has such a responsible agent in the county as would presumptively bring home to the corporation notice of summons served upon him as its representative. Hill v. Cumberland Dairies, Inc., 288 S.W.2d 341, 1956 Ky. LEXIS 251 ( Ky. 1956 ).

This section is not limited in application to instances in which a corporation is the sole defendant. Hoop v. Hahn, 568 S.W.2d 57, 1978 Ky. App. LEXIS 548 (Ky. Ct. App. 1978).

Where wrongful death action was brought in county where a property owner’s association had no office or place of business, the claim against such association was dismissed for lack of venue. Hoop v. Hahn, 568 S.W.2d 57, 1978 Ky. App. LEXIS 548 (Ky. Ct. App. 1978).

3. Construction With Other Law.

This section, rather than KRS 454.210 , controlled in an action against a foreign corporation arising from a slip and fall which occurred in a shopping mall in Kentucky and, therefore, the action was required to be brought in the county in which the incident at issue occurred, rather than in the county of the plaintiff’s residence. Ewing v. Richard E. Jacobs Group, 2001 Ky. App. LEXIS 31 (Ky. Ct. App. Mar. 16, 2001).

4. Office or Place of Business.

Action filed seeking to recover an attorney’s fee, adjudged in personal injury action in Barren Circuit Court, may be brought in Warren Circuit Court where defendant corporation has an office or place of business, and an agent. Louisville & N. R. Co. v. Proctor, 51 S.W. 591, 21 Ky. L. Rptr. 447 (1899).

In action against a domestic building and loan association, to recover usurious interest, Boyd Circuit Court has jurisdiction, where company had an office and local agent in the county, although the local agent on whom process was served was not the agent designated by defendant on whom process shall be served. National Bldg. & Loan Ass'n v. Gallagher, 54 S.W. 209, 21 Ky. L. Rptr. 1140 , 1899 Ky. LEXIS 528 (Ky. Ct. App. 1899).

In action filed in Jefferson Circuit Court for appointment of a receiver and settlement of the affairs of a corporation which maintained offices, or places of business only in Fayette and Carter Counties, and whose chief officer resided in Fayette County, by one who had rendered services to the corporation, asserting a lien on real estate, the court held that insofar as the action sought a personal judgment the action was transitory, and the corporation could enter its appearance and waive its right to be sued in Fayette or Carter County; but any other or further relief was not transitory, and could not be conferred by consent. Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 65 S.W. 593, 23 Ky. L. Rptr. 1445 , 1901 Ky. LEXIS 306 ( Ky. 1901 ).

Jefferson Circuit Court should have sustained defendant foreign insurance company’s motion to quash the service and the return of the summons, since that court did not have jurisdiction of the action against the company, because the company did not have any principal office or place of business in Jefferson County and the action did not arise out of a transaction with defendant’s agent in Jefferson County. Bankers' Nat'l Life Ins. Co. v. Stone, 254 Ky. 682 , 72 S.W.2d 49, 1934 Ky. LEXIS 134 ( Ky. 1934 ).

Although defendant corporation’s home office and principal place of business was in Wayne County, the fact that it maintained a gathering station in Laurel County for raw milk and that dairy products were delivered to the station for distribution to Laurel and surrounding counties was sufficient to give the Laurel Circuit Court jurisdiction of an action against the corporation on a contract. Hill v. Cumberland Dairies, Inc., 288 S.W.2d 341, 1956 Ky. LEXIS 251 ( Ky. 1956 ).

Court properly sustained order to dismiss where savings association did not transact any business in this State or transact business outside this State while regularly soliciting or doing business herein even though process was obtained against the savings association by serving a vice-president whose residence was within this State. Schmidt v. Forehan, 549 S.W.2d 320, 1977 Ky. App. LEXIS 663 (Ky. Ct. App. 1977).

Where service was made on registered office and agent maintained as required by former law, the complaint could not be dismissed for lack of venue under this section since this section only refers to “an” office or place of business rather than the chief place of business. Kem Mfg. Corp. v. Kentucky Gem Coal Co., 610 S.W.2d 913, 1980 Ky. App. LEXIS 407 (Ky. Ct. App. 1980).

Trial court did not err by dismissing, without prejudice, a wrongful death action against a Delaware oil company because the company presented an affidavit to indicate that it had no office, place of business, chief officer, or agent in the county where the robbery at a gas station/convenience store occurred and it also presented documentary evidence to indicate that the store was not its place of business. Furthermore, the decedent’s estate offered nothing to establish that venue was proper in the county. Hensley v. Traxx Mgmt. Co., 2020 Ky. App. LEXIS 58 (Ky. Ct. App. May 8, 2020).

5. Making of Contract.

Suit for recovery of usury, growing out of contracts of borrowing and lending made in Fleming County, was properly brought in the Circuit Court of that county. Louisville Sav., Loan & Bldg. Ass'n v. Harbeson, 51 S.W. 787, 21 Ky. L. Rptr. 278 (1899).

Action to recover excess of freight charged on shipment of tobacco from Franklin, Ky., to Louisville, was properly brought in Simpson County where contract was made, although contract was not perfected until the warehouse paid the freight in Louisville. Conn v. Louisville & N. R. Co., 51 S.W. 617, 21 Ky. L. Rptr. 469 (1899).

Under this section, localizing certain actions, applicable to all corporations, except as expressly excluded by other sections, and providing that actions against corporations on contract may be brought in the county in which the contract was made, where a contract for carriage of a passenger over connecting lines of railroad was made by the initial carrier in a certain county on behalf of the connecting carrier, and thereafter ratified by the latter, which undertook to carry it out, the Circuit Court of the county had jurisdiction of the connecting road, in an action against both roads for breach of the contract. Southern R. Co. v. Cassell, 122 Ky. 317 , 92 S.W. 281, 28 Ky. L. Rptr. 1230 , 1906 Ky. LEXIS 62 ( Ky. 1906 ).

Action against a corporation for breach of contract was properly brought in the county where the contract was made or to be performed. Owensboro Shovel & Tool Co. v. Moore, 154 Ky. 431 , 157 S.W. 1121, 1913 Ky. LEXIS 125 ( Ky. 1913 ).

Where contract was signed by defendant in Powell County and mailed to plaintiffs in Harlan County, where it was signed by plaintiffs and returned by mail to defendant, when plaintiffs signed the contract and placed it in the post office in Harlan County, addressed to defendant, there was an unqualified acceptance of the offer and contract was completed in Harlan County; therefore, it follows that Harlan Circuit Court had jurisdiction of action on such contract. Swann-Day Lumber Co. v. Cornett, 161 Ky. 98 , 170 S.W. 516, 1914 Ky. LEXIS 19 ( Ky. 1914 ).

Todd Circuit Court had jurisdiction of an action to recover money exacted from plaintiff under contract to secure release of a mortgage, where the mortgage was executed in Todd County. Webb v. Southern Trust Co., 227 Ky. 79 , 11 S.W.2d 988, 1928 Ky. LEXIS 457 ( Ky. 1928 ).

Where insurance policy provided that it would not be in force until initial premium was paid, and policy was received by insured, was made in county in which insurer’s agent collected the premium and delivered the policy, beneficiary could maintain action in county in which policy was made against reinsuring company which entered into reinsurance agreement with then insolvent issuing company after insured’s death. Kentucky Home Life Ins. Co. v. Johnson, 263 Ky. 787 , 93 S.W.2d 863, 1936 Ky. LEXIS 251 ( Ky. 1936 ).

Action on contract was properly brought in Jefferson County, where the final act necessary for the formation of the contract was the approval by the home office of the Reconstruction Finance Corporation in Louisville, with the result that the contract was made in Jefferson County. Green River Steel Corp. v. Globe Erection Co., 294 S.W.2d 507, 1956 Ky. LEXIS 120 ( Ky. 1956 ).

Where the insured brought suit against the insurance carrier for an overpayment of premium, venue of the action was in the county in which the insured had contracted with the agent of the insurance carrier. Spurlin v. Ranier, 457 S.W.2d 491, 1970 Ky. LEXIS 208 ( Ky. 1970 ).

6. Performance of Contract.

In view of fact that it forwarded with each shipment of goods a sight draft with bill of lading attached, although the contract originally contemplated performance by delivering the merchandise f.o.b. cars at point of shipment, the shipper is estopped to deny that the contract was not to be performed in Boyd County, Kentucky, and that therefore this action was properly commenced in that county. L. Lazarus Liquor Co. v. Julius Kessler & Co., 269 F. 520, 1920 U.S. App. LEXIS 1875 (6th Cir. Ky. 1920 ).

Contract, whereby plaintiff agreed to buy tobacco from producers in Breckenridge County, draw drafts on Louisville warehouse in payment thereof, prize and ship said tobacco to Louisville to be sold and proceeds, less sum advanced, interest and other charges, to be paid to plaintiff, was one in which all its main features was to be performed in Breckenridge County, and action for damages for failure to honor draft was properly brought in that county. Glasscock v. Louisville Tobacco Warehouse Co., 103 S.W. 319, 31 Ky. L. Rptr. 702 (1907).

The words “to be performed” in this section mean that the contract must be performed in several, or agreed to be performed, in all its essential features in one county, and where the contract is to be partly performed in several counties, and not completely performed in any particular county, the venue of the action does not lie in any of the counties in which the contract might or may have been in part performed. Job Iron & Steel Co. v. Clark, 150 Ky. 246 , 150 S.W. 367, 1912 Ky. LEXIS 892 ( Ky. 1912 ).

Where written order was taken by salesman in Warren County, subject to acceptance of employer corporation in Tennessee, for delivery of coal f.o.b. cars at point of shipment, none of which were in Warren County, contract was not completed until accepted, and, for purposes of this section, no part of such contract was to be performed in Warren County. Southern Coal & Coke Co. v. Bowling Green Coal Co., 161 Ky. 477 , 170 S.W. 1185, 1914 Ky. LEXIS 97 ( Ky. 1914 ).

In an action on a contract under this section, where the county of the performance is relied on as a jurisdictional fact, the contract must be wholly, or in all of its essential parts, performable in that county in order to confer jurisdiction. Thraves v. Bankers' Oil Co., 196 Ky. 362 , 244 S.W. 698, 1922 Ky. LEXIS 500 ( Ky. 1922 ).

Breach of warranty action by purchaser of wire line against corporate seller was properly brought in Ohio County, where defendant shipped the wire from Clarke County to Ohio County to be delivered to itself, which indicated an intent not to pass title to the wire until a draft attached to the bill of lading was paid at Ohio County bank, with the result that the contract was to be performed in Ohio County, and, under this section, the venue of the action was in Ohio County. Frick & Lindsey Co. v. Holbrook, 202 Ky. 416 , 259 S.W. 1033, 1924 Ky. LEXIS 732 ( Ky. 1924 ).

Action against corporation for money due on a contract was properly filed in Allen Circuit Court, where contract was to be performed in Allen County. Dye Bros. v. Butler, 209 Ky. 199 , 272 S.W. 426, 1925 Ky. LEXIS 462 ( Ky. 1925 ).

Wolfe Circuit Court erred in sustaining a special demurrer as to its jurisdiction in an action for the payment of money due the plaintiff on a surety bond by reason of the acts of a defaulting treasurer, where the surety contract was made in Jefferson County, but unquestionably was to be performed in Wolfe County. Torrent Lodge, F. & A. M. v. National Surety Co., 231 Ky. 302 , 21 S.W.2d 439, 1929 Ky. LEXIS 267 ( Ky. 1929 ).

Since KRS 452.455 is cumulative with this section, the Bracken Circuit Court had jurisdiction of an action against foreign corporation whose home office was in New York, where contract was to be performed in Bracken County. Ocean Acci. & Guarantee Corp. v. Milford Bank, 236 Ky. 457 , 33 S.W.2d 312, 1930 Ky. LEXIS 765 ( Ky. 1930 ).

Whitley Circuit Court had jurisdiction of suit on policy insuring race horses against death, where insurance contract was to be performed at insured’s residence in Whitley County. Insurance Co. of North America v. Hopper, 253 Ky. 402 , 69 S.W.2d 728, 1934 Ky. LEXIS 673 ( Ky. 1934 ).

Actions for money alleged to be due on contracts are transitory, the venue of which is governed by KRS 452.480 , but if the action is against a corporation and if the contracts are entered into or are to be performed in a certain county, then such action is properly filed in the Circuit Court of the county in which the contracts are entered into or are to be performed, as required by this section. Holcomb v. Kentucky Union Co., 262 Ky. 192 , 90 S.W.2d 25, 1936 Ky. LEXIS 23 ( Ky. 1936 ).

There was no fair inference that a performance bond was to be performed in the obligee’s principal place of business in Whitley County, Kentucky, such as would give jurisdiction to Whitley County in a suit on the bond, where a contract and a performance bond on the contract were executed in Tennessee and the work contracted for was to be performed in Tennessee and where the surety had no office in Whitley County. T.C. Young Constr. Co. v. Hartford Acci. & Indem. Co., 441 S.W.2d 781, 1969 Ky. LEXIS 332 ( Ky. 1969 ).

Where the defendant corporation was a party to a lease, the principal part of which was the agreement to operate an automobile service station on land in Knox County, there was venue in the Knox Circuit Court. American Oil Co. v. Brooks, 424 S.W.2d 831, 1967 Ky. LEXIS 26 ( Ky. 1967 ).

If the contract is to be performed, in its essential parts, in more than one (1) county, it does not make the action transitory, subject to KRS 452.480 , but, being an action on contract, it remains controlled by this section and must be brought under one of the other three mandates of this section. Ford Motor Credit Co. v. Blackjack Coal Co., 609 S.W.2d 698, 1980 Ky. App. LEXIS 396 (Ky. Ct. App. 1980).

Where a contract is for the payment of money at a designated office or to a designated person at a specific location, it is a contract which is to be performed wholly or in all its essential parts in one county, and thus under this section, an action against the defaulting corporation may be brought in that county. Ford Motor Credit Co. v. Blackjack Coal Co., 609 S.W.2d 698, 1980 Ky. App. LEXIS 396 (Ky. Ct. App. 1980).

7. Tort Actions.
8. —Place of Occurrence.

Action was properly brought in Letcher County against a corporation having its office and place of business in Breathitt County, to recover logs and damages for their taking, where they were alleged to have been wrongfully taken and held by defendant in the county wherein action was filed. Hileman v. Day Bros. Lumber Co., 111 Ky. 557 , 64 S.W. 419, 23 Ky. L. Rptr. 758 , 1901 Ky. LEXIS 223 ( Ky. 1901 ).

Where action was brought against a corporation that had its home office in Jefferson County to recover damages growing out of its failure to label a dangerous article that it sold and delivered to the purchaser in Jefferson County, the Christian Circuit Court had jurisdiction of the action, as it was in that county that the injury complained of occurred, although the negligence in failing to properly label the article occurred in Jefferson County. Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265 , 146 S.W. 770, 1912 Ky. LEXIS 452 ( Ky. 1912 ).

Mercer County farmer who purchased sweet clover seed incorrectly labeled as alfalfa seed was entitled to sue defendant wholesaler for false representations in Mercer County, even though defendant’s principal place of business was in Louisville. Graham v. John R. Watts & Son, 238 Ky. 96 , 36 S.W.2d 859, 1931 Ky. LEXIS 191 ( Ky. 1931 ).

Venue of an action against railroad for personal injuries is controlled by this section and not by KRS 452.450 . James v. Nashville, C. & S. L. Ry., 310 Ky. 616 , 221 S.W.2d 449, 1949 Ky. LEXIS 976 ( Ky. 1949 ).

KRS 452.450 and 452.460 do not permit a medical negligence suit in one location against two doctors who reside in different counties and hospital located in one of the counties unless venue is waived. There is no inconsistency between KRS 452.450 and 452.460 and KRS 411.182 , as KRS 411.182 provides that apportionment may be had against all parties or settling tortfeasors, but it vests no authority to force tortfeasors to trial in improper venue. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

A plaintiff may not bring a personal injury action in a county where only one or some, but not all, of the defendants reside or have offices when the injury is alleged to have taken place in more than one (1) county. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

Trial court did not err by dismissing, without prejudice, a wrongful death action against a Delaware oil company because the company presented an affidavit to indicate that it had no office, place of business, chief officer, or agent in the county where the robbery at a gas station occurred and it also presented documentary evidence to indicate that the station was not its place of business. Furthermore, the decedent’s estate offered nothing to establish that venue was proper in the county. Hensley v. Traxx Mgmt. Co., 2020 Ky. App. LEXIS 58 (Ky. Ct. App. May 8, 2020).

9. Governmental Units and Agencies.

A county is not a corporation within the meaning of this section, although it has issued bonds pursuant to the legislative authority. Board of Church Extension v. Taylor County, 152 Ky. 518 , 153 S.W. 747, 1913 Ky. LEXIS 683 ( Ky. 1913 ).

An action against the members comprising the Kentucky board of pharmacy to coerce the performance by them of a ministerial duty, in the absence of special statutory provision, may be brought in any county in which service of process is had upon any one or more of said members, the board not being a corporation within the meaning of this section. King v. Kentucky Board of Pharmacy, 157 Ky. 52 , 162 S.W. 561, 1914 Ky. LEXIS 229 ( Ky. 1914 ).

This section does not apply to actions against county boards of education, since such actions should be brought only in the county that the board of education serves. Pendleton County Board of Education v. Simpson, 262 Ky. 844 , 91 S.W.2d 557, 1936 Ky. LEXIS 111 ( Ky. 1936 ).

10. Third Party Claim.

Where action against insurer on auto collision insurance policy was instituted in county having venue, a third party claim by the insurer for part of plaintiff’s claim against an incorporated garage operator who resided in another county and who undertook repairs to the vehicle covered by the policy was within the court’s jurisdiction. Goodwin Bros. v. Preferred Risk Mut. Ins. Co., 410 S.W.2d 714, 1967 Ky. LEXIS 503 ( Ky. 1967 ).

11. Lack of Jurisdiction.

In an action for breach of a sale contract, where there was no genuine issue as to the fact that the contract was made and was to be performed in Jefferson County, the Laurel Circuit Court had no jurisdiction of the matter, with the result that the federal district court also had no jurisdiction when the case was removed thereto. Grimes v. Hull-Dobbs, Inc., 154 F. Supp. 151, 1957 U.S. Dist. LEXIS 3068 (D. Ky. 1957 ).

Where it is not disclosed by the petition that the contract out of which action grew was made to be performed in another county, want of jurisdiction could not be reached by demurrer. Currie Fertilizer Co. v. Krish, 74 S.W. 268, 24 Ky. L. Rptr. 2471 , 1903 Ky. LEXIS 305 (Ky. Ct. App. 1903).

McCracken Circuit Court did not have jurisdiction of an action against bank for rescission of exchange of stock on ground of fraud, where the contract was made and performed in Jefferson County. Bancokentucky Co. v. Weil, 258 Ky. 243 , 79 S.W.2d 977, 1935 Ky. LEXIS 149 ( Ky. 1935 ).

Knox Circuit Court did not have jurisdiction of action against insurance company and motor company for breach of insurer’s agreement to put fire damaged truck in as good condition as it was before the fire, where motor company’s contract with insurer to repair truck was to be performed in Harlan County, and where motor company’s agent accepted insurer’s offer to make the repairs in Harlan County. Trinity Universal Ins. Co. v. Mills, 293 Ky. 463 , 169 S.W.2d 311, 1943 Ky. LEXIS 649 ( Ky. 1943 ).

12. — Waiver.

An objection to the court’s jurisdiction in an action brought under this section is waived by filing an answer to the merits. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

Complaint that the Whitley Circuit Court was without jurisdiction under this section, would not be considered by the Court of Appeals, because the objection to jurisdiction was not properly made in that court. Nolin Milling Co. v. White Grocery Co., 168 Ky. 417 , 182 S.W. 191, 1916 Ky. LEXIS 559 ( Ky. 1916 ).

Cited:

City of Covington v. Limerick, 40 S.W. 254, 1897 Ky. LEXIS 267 , 19 Ky. L. Rptr. 330 (1897); Pennebaker Bros. v. Bell City Mfg. Co., 130 Ky. 592 , 113 S.W. 829, 1908 Ky. LEXIS 304 (1908); Employers’ Indem. Co. v. Duncan, 159 Ky. 460 , 167 S.W. 414, 1914 Ky. LEXIS 814 ( Ky. 1914 ); Gainesboro Tel. Co. v. Buckner, 160 Ky. 604 , 169 S.W. 1000, 1914 Ky. LEXIS 496 ( Ky. 1914 ); Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ); Arrowood v. Duff, 287 Ky. 107 , 152 S.W.2d 291, 1941 Ky. LEXIS 507 ( Ky. 1941 ); Gregory v. Bryan-Hunt Co., 295 Ky. 345 , 174 S.W.2d 510, 1943 Ky. LEXIS 236 ( Ky. 1943 ); Marmor Ins. Agency v. Ardery, 240 S.W.2d 832, 1951 Ky. LEXIS 1021 ( Ky. 1951 ); Raley v. Pittsburg-Des Moines Steel Co., 317 S.W.2d 900, 1958 Ky. LEXIS 119 ( Ky. 1958 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Ham, Corporations, 63 Ky. L.J. 739 (1974-75).

Kentucky Law Survey, L’Enfant, Civil Procedure, 64 Ky. L.J. 357 (1975-76).

Kentucky Law Survey, Ham, Corporations, 70 Ky. L.J. 223 (1981-82).

Northern Kentucky Law Review.

Philipps, The Kentucky Long Arm Statute: How “Long” Is It?, 4 N. Ky. L. Rev. 65 (1977).

452.453. Where action against tobacco growers and warehousemen must be brought.

  1. Venue in a civil action against a tobacco grower for damages alleged as a result of use or consumption of tobacco products that may have been grown by that tobacco grower shall lie only in the county of residence of the tobacco grower.
  2. Venue in a civil action against a warehouseman for damages alleged as a result of use or consumption of tobacco products that may have been sold by that warehouseman shall lie only in the county in which the tobacco warehouse is located.

History. Enact. Acts 1998, ch. 422, § 2, effective April 7, 1998.

452.455. Where action against common carrier upon contract to carry property or for tort must be brought.

Excepting the actions mentioned in KRS 452.465 , an action against a common carrier, whether a corporation or not, upon a contract to carry property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the contract is made; or in which the carrier agrees to deliver the property. An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he resides in a county into which the carrier passes; provided, if the action be brought by a personal representative, the residence of the decedent, and not that of the personal representative shall control.

History. C. C. 73: Acts 1928, ch. 171; trans. 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Constitutionality.

This section applies equally to foreign and domestic carriers and does not discriminate against a nonresident or deny to him equal protection of the laws in violation of United States Const., Amend. 14. Commercial Carriers, Inc. v. Matracia, 311 S.W.2d 565, 1958 Ky. LEXIS 209 ( Ky. 1958 ).

2. Construction.

This section cannot be held to abridge the venue given by KRS 452.450 . Louisville & N. R. Co. v. Proctor, 51 S.W. 591, 21 Ky. L. Rptr. 447 (1899).

Provisions of this section, localizing certain actions and pertaining to common carriers exclusively, one part relating to actions on contract to carry property, the other to actions for torts, either injury to the person of a passenger, or for injury to the person or property of another, does not include actions on contracts to carry passengers. Southern R. Co. v. Cassell, 122 Ky. 317 , 92 S.W. 281, 28 Ky. L. Rptr. 1230 , 1906 Ky. LEXIS 62 ( Ky. 1906 ).

A carrier that owned a right of way and roadbed which extended and passed into Bullitt County, although no train had been operated in the county, was a carrier which passed into Bullitt County, in the sense and meaning of this section. Louisville, H. & S. L. R. Co. v. Sanders' Adm'r, 92 S.W. 937, 29 Ky. L. Rptr. 212 (1906).

Under this section, a carrier is construed to mean the individual or the corporation or partnership or association who or which has the legal authority to operate as such; that is, the carrier is the entity and not the persons having a financial interest in the business. Black v. Bishop, 307 Ky. 40 , 209 S.W.2d 482, 1948 Ky. LEXIS 660 ( Ky. 1948 ).

Under this section, the residence of the plaintiff and the operation of the carrier in the same county must coincide at the time the suit is filed. Black v. Bishop, 307 Ky. 40 , 209 S.W.2d 482, 1948 Ky. LEXIS 660 ( Ky. 1948 ).

3. Injury to Property.

Action for injury to property, occurring in Hardin County, where plaintiff resides, and into which common carrier passes, was properly brought in that county. Plotz v. Miller, 51 S.W. 176, 21 Ky. L. Rptr. 257 (1899).

Express company engaged in the business of transporting from place to place and for hire the goods of such of the public as saw fit to employ it was a common carrier, so that plaintiff properly brought an action against express company in Whitley County where plaintiff resided in that county and the express company passed through it. Gess v. Wilder, 237 Ky. 830 , 36 S.W.2d 617, 1931 Ky. LEXIS 692 ( Ky. 1931 ).

Under option afforded by this section, action against Michigan common carrier of freight for damages arising out of collision between plaintiff’s truck and common carrier’s tractor-trailer was properly brought in Kenton Circuit Court, where plaintiff was a resident of Kenton County and common carrier passed through that county. Commercial Carriers, Inc. v. Matracia, 311 S.W.2d 565, 1958 Ky. LEXIS 209 ( Ky. 1958 ).

4. — Making of Contract.

Where a contract made with a railroad company for the shipment of livestock provided for the transportation of the stock over the line of another company, which was to receive its proportion of the price of transportation, the former company must be regarded as having made the contract as the latter’s agent, and an action against the latter company to recover damages for injury to the stock while being transported over its road may be brought in the county in which the contract was made by the former company. Nashville, C. & S. L. R. Co. v. Carrico, 95 Ky. 489 , 26 S.W. 177, 16 Ky. L. Rptr. 66 , 1894 Ky. LEXIS 47 ( Ky. 1894 ).

Where livestock is injured by the negligence of any of the carriers having it in charge between the points of reception and destination, an action may be brought against the initial carrier in the county where the contract of shipment was made. Illinois C. R. Co. v. Curry, 127 Ky. 643 , 106 S.W. 294, 32 Ky. L. Rptr. 513 , 1907 Ky. LEXIS 169 ( Ky. 1907 ).

5. — Foreign Corporations.

Residence of foreign corporation doing business in the state is the county in which its chief officer or agent resides when an action against it is commenced, so that action for damages to livestock shipped from Chicago to Raleigh, N. C., over lines of defendant and its connecting carriers, against a corporation which has become domesticated and a resident as respects its property, operations, and conduct within the state, was properly brought in Jefferson County, where its agent and chief officer resided. Knight v. Pennsylvania R. Co., 264 Ky. 412 , 94 S.W.2d 1013, 1936 Ky. LEXIS 341 ( Ky. 1936 ).

Jefferson Circuit Court had jurisdiction of action for damage to interstate shipment of livestock under federal interstate commerce act which imposes liability on a terminal carrier for damages to such a shipment, where defendant railroad operated line of railroad and had division offices in Jefferson County. Knight v. Pennsylvania R. R., 280 Ky. 191 , 132 S.W.2d 950, 1939 Ky. LEXIS 101 ( Ky. 1939 ).

6. Contract Actions.

Where a connecting carrier receives livestock from the initial carrier or an intermediate carrier without limiting its liability, it must be assumed to have accepted the stock under the terms of the original contract made with the initial carrier on behalf of itself “and connecting lines,” and, having thus ratified the contract, may be sued on it in the county in which it was made, as if it had originally signed the contract. Pittsburg, C. C. & S. L. R. Co. v. Viers, 113 Ky. 526 , 68 S.W. 469, 24 Ky. L. Rptr. 356 , 1902 Ky. LEXIS 77 ( Ky. 1902 ).

Since KRS 452.450 is cumulative with this section, the Bracken Circuit Court had jurisdiction of an action against foreign corporation whose home office was in New York, where contract was to be performed in Bracken County. Ocean Acci. & Guarantee Corp. v. Milford Bank, 236 Ky. 457 , 33 S.W.2d 312, 1930 Ky. LEXIS 765 ( Ky. 1930 ).

7. — Delivery of Property.

Where plaintiff, a resident of Estill County brought suit in Madison County against a carrier with residence in Jefferson County, alleging joint causes of action, one for damages growing out of breach of contract, and the other for injury to person, the Madison Circuit Court had jurisdiction of the claim for damages relating to the household goods as the action was instituted in the county where defendant agreed to deliver the property, but did not have venue of action for injury to a passenger. Wilson v. Louisville & N. R. Co., 112 S.W. 585, 33 Ky. L. Rptr. 985 (1908).

Where shipments were made from Indianapolis to points in Bath and Montgomery Counties, and the initial carrier that issued the bill of lading had no lines running into either of those counties but had an agent in Jefferson County, such carrier by issuing the bill of lading agreed to deliver the shipments in those counties at the respective points of destination; thus suits could be properly brought in those counties against it for a failure to comply with the contract, and summons could properly be served on its agent in Jefferson County. Cleveland, C. C. & S. L. R. Co. v. Young, 175 Ky. 841 , 195 S.W. 93, 1917 Ky. LEXIS 393 ( Ky. 1917 ).

8. Injury or Death.

Venue of an action against railroad for personal injuries is controlled by this section and not by KRS 452.450 . James v. Nashville, C. & S. L. Ry., 310 Ky. 616 , 221 S.W.2d 449, 1949 Ky. LEXIS 976 ( Ky. 1949 ).

9. — Place of Injury.

This section authorized the bringing of an action for wrongful death against railroad and its special policeman in Warren County, even though plaintiff administrator qualified in Boyd County, since the decedent was shot and killed by the policeman in Warren County. Louisville & N. R. Co. v. Moore's Adm'r, 292 Ky. 223 , 166 S.W.2d 68, 1942 Ky. LEXIS 57 ( Ky. 1942 ).

In an action by appellee customer against appellant bus company to recover damages after the customer broke the customer’s leg while boarding a bus, the trial court properly granted the customer’s motion to transfer venue to the county where the injury occurred, as that was the proper venue for the action pursuant to KRS 452.455 . Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387, 2003 Ky. LEXIS 79 ( Ky. 2003 ).

10. — Decedent’s Residence.

Where accident resulting in death of plaintiff’s intestate occurred in Bourbon County, and residence of intestate was in Lincoln County, where the personal representative qualified, the Circuit Court of the latter county had jurisdiction of the action. Louisville & N. R. Co. v. Cooley's Adm'r, 49 S.W. 339, 20 Ky. L. Rptr. 1372 (1899).

Action for wrongful death against railroad was properly maintained in Meade County, where deceased lived and was killed, even though neither of the defendants nor the administrator resided in Meade County. Illinois C. R. Co. v. Willis, 123 Ky. 636 , 97 S.W. 21, 29 Ky. L. Rptr. 1187 , 1906 Ky. LEXIS 196 (Ky. Ct. App. 1906).

11. — Residence of Personal Representative.

Under this section, an action against a railroad company to recover damages for the death of an employee occurring in Tennessee may be brought by his administratrix in the county in which she resides, if she resides in a county into which the railroad passes, since she, and not her intestate, is the plaintiff in the action. Turner's Adm'x v. Louisville & N. R. Co., 110 Ky. 879 , 62 S.W. 1025, 23 Ky. L. Rptr. 340 , 1901 Ky. LEXIS 150 ( Ky. 1901 ).

Where deceased was a resident of Jefferson County, and where railroad had its chief offices in Jefferson County, Hardin Circuit Court had jurisdiction of a wrongful death action against the railroad, since plaintiff administratrix was a resident of Hardin County at the time the action was filed, even though she had qualified as administratrix in Jefferson County. Illinois C. R. Co. v. Stith's Adm'x, 120 Ky. 237 , 85 S.W. 1173, 27 Ky. L. Rptr. 596 , 1905 Ky. LEXIS 95 ( Ky. 1905 ).

Where plaintiff and his family resided in Henry County for many years, but moved to Jefferson County in February of the year in which his intestate was killed, a few months after which they returned to Henry County to make it their home, and were residing there when action for negligent killing of plaintiff’s intestate was filed, such action was properly brought in Henry County, although deceased was killed in Jefferson County, and plaintiff resided there temporarily at the time and was appointed administrator in the county court of Jefferson County, and home office of the defendant was situated in that county. Louisville & N. R. Co. v. Hoskins' Adm'r, 108 S.W. 305, 32 Ky. L. Rptr. 1263 (1908).

Under this section, the personal representative of one killed in a train accident may, if he so desires, bring a wrongful death action in the county of his residence if the carrier passes into or through said county. Louisville & N. R. Co. v. Spears, 192 Ky. 64 , 232 S.W. 60, 1921 Ky. LEXIS 10 ( Ky. 1921 ).

Prior to the enactment of the Federal Control Act, an administrator, under this section, could bring an action against a carrier for negligence in the county of his residence, if the carrier passed into that county, although his intestate was killed or at the time of his death resided in a different county; therefore where according to the uncontradicted facts both the decedent and administrator resided in the county of the latter’s appointment and the suit was brought in that county, the Circuit Court had jurisdiction of the action whether the action was brought under federal control or under the provisions of this section. Hines v. Taylor's Adm'r, 192 Ky. 298 , 233 S.W. 716, 1921 Ky. LEXIS 50 ( Ky. 1921 ).

12. — Nonresident Plaintiff.

Under this section, an action by a nonresident against a railroad corporation for personal injuries received in another state must be brought in the county in which the chief officer of the defendant resides, or in the county in which it has its chief office. Eichhorn v. Louisville & N. R. Co., 112 Ky. 338 , 65 S.W. 797, 23 Ky. L. Rptr. 1640 , 1901 Ky. LEXIS 315 ( Ky. 1901 ).

13. — Residence of Plaintiff.

Where plaintiff claimed residence in Logan County, the Circuit Court of that county had jurisdiction of action for personal injury, notwithstanding plaintiff temporarily resided in another county. Louisville & N. R. Co. v. Gilliam's Adm'x, 71 S.W. 863, 24 Ky. L. Rptr. 1536 (1903).

Action for damages allegedly resulting from the commission of a tort by the driver of one of defendant’s buses was properly brought in Whitley County, where defendant passed through that county, and where plaintiff resided at the time the action was instituted, even though the plaintiff was a registered voter in Nebraska, but, as an incident to his employment, had resided in Whitley County when the acts complained of occurred and when the action was instituted. Southeastern Greyhound Lines v. Conklin, 303 Ky. 87 , 196 S.W.2d 961, 1946 Ky. LEXIS 790 ( Ky. 1946 ).

14. — County in Which Carrier Passes.

An action against a common carrier for an injury to a passenger, or to other person or his property, was properly brought in Pulaski County, it being conceded that appellee, a common carrier, passes into that county. Allen v. Cincinnati, N. O. & T. P. E. Co., 143 Ky. 723 , 137 S.W. 230, 1911 Ky. LEXIS 486 ( Ky. 1911 ).

15. — Place Where Carrier Summoned.

This section applies only where some of the localizing facts exist, and if these facts are wholly wanting, the action may be brought in any county in which the defendant is summoned as provided by KRS 452.480 ; therefore, where a resident of this state is injured in another state through the negligence of a common carrier, which is a nonresident corporation doing business in this state, and which does not pass into the county in which the injured person resides, the action for the injury may be brought in any county in which the defendant is summoned. C. & O. R. Co. v. Cowherd, 16 Ky. L. Rptr. 373 (1894).

16. — Continuing Tort.

Where alleged injuries to person were begun in Mason County, continued in and through Greenup, and into and ended in Bath County, it was one continuous transaction and complainant has the right to elect in which county he would institute action. Evans v. Maysville & Big Sandy R. R. Co., 77 S.W. 708, 25 Ky. L. Rptr. 1258 , 1903 Ky. LEXIS 303 (Ky. Ct. App. 1903).

17. Telephone Companies.

This section is inapplicable to action against telephone companies to recover damages for negligently delaying the transmission and delivery of a message. Gainesboro Tel. Co. v. Buckner, 160 Ky. 604 , 169 S.W. 1000, 1914 Ky. LEXIS 496 ( Ky. 1914 ).

18. Jurisdiction.

In an action under this section, where petition stated three (3) causes of action, one (1) of which could be maintained in the county wherein the action was brought, a special demurrer to the jurisdiction was properly overruled, because the court had jurisdiction over one (1) of the causes of action stated in the petition. Louisville & N. R. Co. v. Mitchell, 162 Ky. 253 , 172 S.W. 527, 1915 Ky. LEXIS 56 ( Ky. 1915 ).

Reversal of a judgment in Whitley Circuit Court against common carrier’s truck driver on the ground that said court did not have jurisdiction of the driver, who was a resident of and served with summons in Jefferson County, did not necessitate a reversal of the judgment against the carrier, since the jurisdiction of Whitley Circuit Court over the carrier was not contingent upon its acquisition or retention of jurisdiction over the driver, but was fixed unconditionally by this section. Silver Fleet Motor Express v. Casey, 288 Ky. 233 , 155 S.W.2d 863, 1941 Ky. LEXIS 82 ( Ky. 1941 ).

19. — Improper.

Where defendant carrier contracted with a bridge company for a division of work over the lines passing into Kenton County, the carrier’s cars and servants while operating in Kenton County were the servants of the bridge company and under its control, and, hence, under this section the carrier was not liable to be sued in Kenton County for injuries to a person residing there, with the result that the federal court to which the action was removed also did not have jurisdiction. Fisher v. Cleveland, C., C. & St. L. R. Co., 169 F. 956, 1909 U.S. App. LEXIS 5494 (C.C.D. Ky. 1909 ).

Hardin Circuit Court has no jurisdiction in action against a common carrier for personal injury, where that county is neither the residence of any of the parties nor the county where the injury was done. Sherrill v. Chesapeake, O. & S. W. R. Co., 89 Ky. 302 , 12 S.W. 465, 11 Ky. L. Rptr. 502 , 1889 Ky. LEXIS 134 ( Ky. 1889 ).

Where in an action against an initial and an intermediate carrier for loss of goods, it appeared that the initial carrier accepted plaintiff’s goods for transportation to a town in another county into which the line of neither defendant ran, the bill of lading providing that the responsibility of each company should cease on delivery to a connecting carrier, a plea to the jurisdiction of the court in the county of final destination was properly sustained. Brunk v. Ohio & K. R. Co., 127 Ky. 304 , 105 S.W. 443, 32 Ky. L. Rptr. 174 , 1907 Ky. LEXIS 135 ( Ky. 1907 ).

In action on contract to carry property, Fayette County being neither the home of the defendants, nor the place where the contract was made, nor where the goods were to be delivered, the Fayette Circuit Court had no jurisdiction for damages to stock shipped. Jewell v. Louisville & N. R. Co., 145 Ky. 493 , 140 S.W. 689, 1911 Ky. LEXIS 892 ( Ky. 1911 ).

Bourbon Circuit Court properly sustained special demurrer to its jurisdiction and to the right of plaintiff administrator to maintain wrongful death action under this section, where deceased resided in and was fatally injured in Fayette County, while plaintiff was appointed administrator in Bourbon County in clear violation of the statutes relating to the appointment of administrators. Walter's Adm'r v. Kentucky Traction & Terminal Co., 206 Ky. 100 , 266 S.W. 887, 1924 Ky. LEXIS 261 ( Ky. 1924 ).

Where resident of Harlan County was struck by train in Virginia and died in Bell County, Kentucky, Bell Circuit Court did not have jurisdiction of administrator’s action for wrongful death against railroad since the injuries occurred in Virginia and the principal residence of the railroad in Kentucky was in Jefferson County. Melton's Adm'r v. Southern R. Co., 236 Ky. 629 , 33 S.W.2d 690, 1930 Ky. LEXIS 829 ( Ky. 1930 ).

Johnson Circuit Court did not have jurisdiction of wrongful death action against railroad, where deceased resided and was killed in Floyd County while the chief office of the railroad was in Boyd County. Chesapeake & O. R. Co. v. Glaspy's Adm'r, 251 Ky. 243 , 64 S.W.2d 564, 1933 Ky. LEXIS 832 ( Ky. 1933 ).

Although the Whitley Circuit Court had jurisdiction of an action between Whitley County residents and common carrier operating in Whitley County, that court did not acquire jurisdiction of carrier’s truck driver who resided and was served with summons in Jefferson County, where the collision, out of which the action arose, occurred in Laurel County. Silver Fleet Motor Express v. Casey, 288 Ky. 233 , 155 S.W.2d 863, 1941 Ky. LEXIS 82 ( Ky. 1941 ).

Defendant who drove a bus for common carrier could not be sued in the county where the carrier operated if he did not reside there, so that the trial court erred in not sustaining his motion to quash the return on the summons. Black v. Bishop, 307 Ky. 40 , 209 S.W.2d 482, 1948 Ky. LEXIS 660 ( Ky. 1948 ).

Where common carrier ceased to do business in Whitley County in August, 1946, the Whitley Circuit Court did not have jurisdiction of an action against the carrier filed in November, 1946, since the plaintiffs resided in Owsley County, and the accident out of which the cause of action arose occurred in Clay County. Black v. Bishop, 307 Ky. 40 , 209 S.W.2d 482, 1948 Ky. LEXIS 660 ( Ky. 1948 ).

Since this section contemplates that a carrier may have but one (1) residence within the state for the purpose of suit, the Jefferson Circuit Court had no jurisdiction of an action against a carrier whose chief office within the state was in Boyd County notwithstanding carrier maintained two (2) district managers within Jefferson County. Tufts v. Chesapeake & O. R. Co., 401 S.W.2d 58, 1966 Ky. LEXIS 400 ( Ky. 1966 ).

20. — Waiver of Objection.

Demurrer to petition in action under this section for want of jurisdiction of the cause of action is bad where the petition does not show that the county where the action was brought is not the county where the contract was made or where defendant resides, and the objection of want of jurisdiction over defendant, not being raised by answer, is waived. Richardson v. Louisville & N. R. Co., 129 Ky. 449 , 111 S.W. 343, 1908 Ky. LEXIS 158 ( Ky. 1908 ).

21. — Jury Question.

Where in an action for personal injury, the issue as to the venue was made by traverse, and the evidence was conflicting as to which of two (2) counties the plaintiff was in at the time of the injury, the question of jurisdiction should be submitted to the jury by a proper instruction. Louisville & N. R. Co. v. Grimes, 150 Ky. 219 , 150 S.W. 346, 1912 Ky. LEXIS 882 ( Ky. 1912 ).

22. Action Against Two Carriers.

Under provisions of this section and KRS 452.490 , providing that, in an action against several defendants, no judgment shall be rendered against any of them, if the action be discontinued as to the defendants who reside or were summoned in the county, where an action is brought against two (2) telephone companies — one a resident and the other a nonresident of the county — and no verdict is rendered against the resident company, the action must be dismissed as to the nonresident. Louisville Home Tel. Co. v. Beeler's Adm'r, 125 Ky. 366 , 101 S.W. 397, 31 Ky. L. Rptr. 19 , 1907 Ky. LEXIS 301 ( Ky. 1907 ).

In an action against two (2) carriers for loss and damage to a carload of corn, where the action was brought in the county of the resident of the initial carrier, and summons was served upon the agent of the subsequent carrier in another county, under the provisions of this section, since the contract was made in the county of the residence of the initial carrier, and the initial carrier being the agent of the subsequent carrier, the subsequent carrier was properly held to be before the court upon such service of summons, and the motion of the subsequent carrier to quash the return on the process was properly overruled. Southern R. Co. v. Avey, 173 Ky. 598 , 191 S.W. 460, 1917 Ky. LEXIS 502 ( Ky. 1917 ).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Louisville & N.R.R. v. S.D. Chestnut & Bro., 115 Ky. 43 , 72 S.W. 351, 1903 Ky. LEXIS 71 (1903); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Barnes v. Union Cent. Life Ins. Co., 168 Ky. 253 , 182 S.W. 169, 1916 Ky. LEXIS 550 ( Ky. 1916 ); Crume v. Taylor, 272 Ky. 585 , 114 S.W.2d 1119, 1938 Ky. LEXIS 173 ( Ky. 1938 ); Louisville & N. R. Co. v. Alexander, 277 Ky. 719 , 127 S.W.2d 395, 1938 Ky. LEXIS 573 ( Ky. 1938 ); Whitney Transfer Co. v. McFarland, 283 Ky. 200 , 138 S.W.2d 972, 1940 Ky. LEXIS 270 ( Ky. 1940 ); Cottengim’s Adm’r v. Adams’ Adm’x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 , 36 A.L.R.2d 1142 ( Ky. 1953 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Deep, Joinder of Actions, 40 Ky. L.J. 105 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Carriers, § 134.00.

452.460. Where action for injury to person, property or character must be brought.

  1. Every other action for an injury to the person or property of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this state, must be brought in the county in which the defendant resides, or in which the injury is done. Provided, that in actions for libel the action shall be brought in the county in which the plaintiff resides or in the county in which the newspaper or publication is printed or published, or in the county in which the transaction or act or declaration to which the publication relates is stated, or purported to have been done or taken place.
  2. If an injury occurs on a river or stream dividing two (2) or more counties, any county bounding the river at the point the injury occurred may be considered the county in which the injury is done for purposes of bringing the action.

History. C. C. 74: Acts 1910, ch. 28; 1922, ch. 122; trans. Acts 1952, ch. 84, § 1; 1958, ch. 61.

NOTES TO DECISIONS

1. Construction.

The provision of this section that a personal injury action must be brought in the county in which the defendant resides, or in which the injury was done, is not an absolute requirement, but is one that must be invoked by the defendant if he wishes to compel compliance with it, so that if he does not invoke it by proper pleading, the question of venue becomes immaterial. James v. Holt, 244 S.W.2d 159, 1951 Ky. LEXIS 1203 ( Ky. 1951 ).

This section, which makes the venue local in a personal injury action and limits it to the county in which the defendant resides, or in which the injury is done, includes death as well as personal injury in the phrase “in which the injury is done.” Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

2. Jurisdiction.

Where action for the recovery of money within the jurisdiction of the court is not brought in the proper county as fixed by this section, the action may be dismissed, where the objection is properly taken, but, where defendant does not object to the venue, the matter is waived. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

Although the Whitley Circuit Court had jurisdiction of an action between Whitley County residents and common carrier operating in Whitley County, that court did not acquire jurisdiction of carrier’s truck driver who resided and was served with summons in Jefferson County, where the collision, out of which the action arose, occurred in Laurel County. Silver Fleet Motor Express v. Casey, 288 Ky. 233 , 155 S.W.2d 863, 1941 Ky. LEXIS 82 ( Ky. 1941 ).

Where defendant filed motion to dismiss on ground no claim was stated and where the pleadings did not show lack of venue and defendant participated in taking depositions, objection to venue was waived. Licking River Limestone Co. v. Helton, 413 S.W.2d 61, 1967 Ky. LEXIS 376 ( Ky. 1967 ).

3. Defendant’s Residence.

Where plaintiff brought an action in the Nelson Circuit Court for injuries sustained in an automobile collision in Jefferson County against a defendant residing in Nelson County and another defendant residing in Jefferson County, the Nelson Circuit Court had jurisdiction only of the defendant residing in that county, since the action was controlled by this section and not by KRS 452.480 . Crume v. Taylor, 272 Ky. 585 , 114 S.W.2d 1119, 1938 Ky. LEXIS 173 ( Ky. 1938 ).

In an action in the Estill Circuit Court for injuries sustained in an automobile collision in another county, where summons was served on one defendant in Estill County and on the other two (2) defendants in Fayette County, the court had jurisdiction of the two (2) defendants served in Fayette County, since there was nothing in the record that authorized the court to adjudge that they did not reside in Estill County. White v. Crouch, 280 Ky. 637 , 133 S.W.2d 753, 1939 Ky. LEXIS 163 ( Ky. 1939 ).

It was not necessary for defendant in wrongful death action in Hancock County to be domiciled in that county, since this section only requires the defendant’s residence in the county to give the court venue. Vogt v. Powers' Adm'x, 291 S.W.2d 840, 1956 Ky. LEXIS 407 ( Ky. 1956 ).

Where defendant moved to Hancock County six (6) months before an automobile accident resulting in the death of plaintiff’s decedent, and later bought a one half (1/2) interest in a service station in Kentucky, defendant’s residence in Hancock County was sufficient to give the Hancock Circuit Court jurisdiction of plaintiff’s wrongful death action under this section. Vogt v. Powers' Adm'x, 291 S.W.2d 840, 1956 Ky. LEXIS 407 ( Ky. 1956 ).

Actions for injuries allegedly sustained by woman in fall from a taxicab as well as for medical expenses incurred by husband and for the loss of wife’s services were properly brought in Kenton County, where both defendants were residents. Wilson v. Little, 293 S.W.2d 715, 1956 Ky. LEXIS 85 ( Ky. 1956 ).

Venue of action by bank against subcontractor and prime contractor for advances to subcontractor and for fraud lay in county of subcontractor’s and bank’s residence notwithstanding work under contract was done and prime contractor resides in another county. Scott v. Farmers State Bank, 410 S.W.2d 717, 1966 Ky. LEXIS 43 ( Ky. 1966 ).

KRS 452.450 and 452.460 do not permit a medical negligence suit in one location against two doctors who reside in different counties and hospital located in one of the counties unless venue is waived. There is no inconsistency between KRS 452.450 and 452.460 and KRS 411.182 , as KRS 411.182 provides that apportionment may be had against all parties or settling tortfeasors, but it vests no authority to force tortfeasors to trial in improper venue. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

A plaintiff may not bring a personal injury action in a county where only one (1) or some, but not all, of the defendants reside or have offices when the injury is alleged to have taken place in more than one (1) county. Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

4. Place of Injury.

Under this section, an action by a Kentucky resident against a nonresident arising out of an automobile collision could be brought only in the county where the accident occurred. Kennedy v. Lee, 272 Ky. 237 , 113 S.W.2d 1125 ( Ky. 1938 ).

In a wrongful death action, although appellant claimed that the injury occurred when the decedent passed away in Muhlenberg County, venue under KRS 452.460(1) was not where the damage was suffered; the negligence or injury occurred when the doctor allegedly breached his duty as part of his treatment of the decedent in Ohio County. O'Bannon v. Allen, 337 S.W.3d 662, 2011 Ky. App. LEXIS 59 (Ky. Ct. App. 2011).

5. Wrongful Death Actions.

An action for wrongful death occurring in Kentucky in which the defendant was a nonresident was not an action for injury to a person within this section and was properly brought as provided in KRS 452.480 in a county in which the defendant was summoned. Harrison v. Steffen, 51 F. Supp. 225, 1943 U.S. Dist. LEXIS 2368 (D. Ky. 1943 ).

Since plaintiffs had the option of bringing action for wrongful death of son in county where defendant resided or where injury was done, once they made choice to bring the action where death occurred, venue could not be changed except by agreement or by compliance with the provisions of KRS 452.010 et seq.; therefore, action of trial court in granting a change of venue because it would be a more convenient forum to the parties, their witnesses and counsel was void ab initio. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

6. Libel.

An action for libel based on the libelous matter contained in a letter or other writing, not printed and circulated, as is a newspaper, may be brought in the county in which the defendant resides. Johnson v. Langley, 247 Ky. 387 , 57 S.W.2d 21, 1933 Ky. LEXIS 398 ( Ky. 1933 ).

This section’s provision relating to actions for libel applies only to newspapers or other printed publications, and the word “published” was used in the sense of “printed” and not in the sense of the word “circulated.” Johnson v. Langley, 247 Ky. 387 , 57 S.W.2d 21, 1933 Ky. LEXIS 398 ( Ky. 1933 ).

7. Slander.

An action for damages for slander may be brought in the county where the defamatory words are uttered, whether the defendant be a resident of the state or not. Bright v. Hammond, 105 Ky. 761 , 49 S.W. 773, 20 Ky. L. Rptr. 1583 , 1899 Ky. LEXIS 270 ( Ky. 1899 ).

An action for slander against the person who gave to the cashier such information, must be brought in the county in which the alleged slander was uttered, and not in the county to which it was transmitted by the cashier by mail. Caldwell v. Story, 107 Ky. 10 , 52 S.W. 850, 21 Ky. L. Rptr. 599 , 1899 Ky. LEXIS 127 ( Ky. 1899 ).

8. Malicious Prosecution.

In action for malicious prosecution brought in Bullitt Circuit Court, where plaintiff was arrested, it was proper to overrule motion to quash summons served on defendant in Jefferson County, since such action should be brought in the county in which the injury is done. Moser v. Fable, 164 Ky. 517 , 175 S.W. 997, 1915 Ky. LEXIS 401 ( Ky. 1915 ).

Where prosecution for forgery was begun in Lee County and properly transferred to Clark County, and after defendant was acquitted he brought a malicious prosecution action against the complaining witness, the Clark Circuit Court had jurisdiction of such action under this section. Bowman v. Combs, 210 Ky. 1 , 273 S.W. 719, 1925 Ky. LEXIS 616 ( Ky. 1 925).

9. False Imprisonment.

Under this section, the venue of an action for false imprisonment was in the county where the arrest was made. Rains v. Smith, 155 Ky. 766 , 160 S.W. 493, 1913 Ky. LEXIS 346 ( Ky. 1913 ).

10. Malpractice.

Provisions of this section that every action for an injury to the person of plaintiff, except the actions provided for by the preceding sections, must be brought in the county in which the defendant resides, or in which the injury is done, does not apply to an action against a surgeon for malpractice, the injury being the result of a breach of contract, but such an action being transitory, may be brought in any county in which the defendant resides or is summoned as is provided in KRS 452.480 . Wood v. Downing's Adm'r, 110 Ky. 656 , 62 S.W. 487, 23 Ky. L. Rptr. 62 , 1901 Ky. LEXIS 116 ( Ky. 1901 ).

In malpractice action against several physicians, where the petition stated a separate and distinct cause of action against each physician, the Whitley Circuit Court did not have jurisdiction as to all of those physicians who contracted with the plaintiff and treated him outside of Whitley County. Rose v. Sprague, 248 Ky. 635 , 59 S.W.2d 554, 1933 Ky. LEXIS 286 ( Ky. 1933 ).

Administratrix was entitled to a new trial in the first of two (2) of her malpractice actions, filed in two (2) different counties against four (4) doctors and their respective hospitals, where two (2) of the doctors were found not liable after a trial in the second suit, but the court in the first suit erroneously gave an apportionment instruction therein including these non-party doctors, as they were non-party non-settling doctors in the first lawsuit. Jones v. Stern, 168 S.W.3d 419, 2005 Ky. App. LEXIS 19 (Ky. Ct. App. 2005).

11. Stockholders’ Suit.

Stockholders’ action to recover damages for the wrongful appointment of receiver and the misappropriation and illegal sale of the assets of the corporation was not, properly speaking, an action for malicious prosecution, or for an injury to person, property, or character, within the meaning of this section, but, on the contrary, was a transitory action. Reid v. Salyer, 281 Ky. 755 , 137 S.W.2d 421, 1940 Ky. LEXIS 109 ( Ky. 1940 ).

12. Recovery of Personal Property.

An action for the recovery of specific personal property in which damages for detention are sought is not an action for injury to property. Gover v. Wheeler, 296 Ky. 734 , 178 S.W.2d 404, 1944 Ky. LEXIS 616 ( Ky. 1944 ).

13. Suit against Commonwealth.

When the General Assembly adopted a resolution permitting an individual to sue the Commonwealth and the state highway commission to recover damages for any injuries received by him through the carelessness or negligence of the state highway commission, its agents or employees, the resolution fixed the venue of the action, with the result that this section did not control, but the resolution did not result in changing the venue law by special act. Commonwealth v. Daniel, 266 Ky. 285 , 98 S.W.2d 897, 1936 Ky. LEXIS 643 ( Ky. 1936 ).

14. Appeal.

Where claimant’s petition for review of a final order of the workers’ compensation board was fatally deficient in failing to state the requisites of venue of either this section or KRS 452.465 , the Circuit Court was not authorized to consider the appeal. Thacker v. R. F. Coal Co., 332 S.W.2d 532, 1960 Ky. LEXIS 152 ( Ky. 1960 ).

Cited:

Sanderson v. Hunt, 116 Ky. 435 , 76 S.W. 179, 25 Ky. L. Rptr. 626 , 1903 Ky. LEXIS 205 ( Ky. 1903 ); Evans v. Maysville & Big Sandy R. R. Co., 77 S.W. 708, 25 Ky. L. Rptr. 1258 , 1903 Ky. LEXIS 303 (Ky. Ct. App. 1903); Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265 , 146 S.W. 770, 1912 Ky. LEXIS 452 ( Ky. 1912 ); Henry Fisher Packing Co. v. Mattox, 262 Ky. 318 , 90 S.W.2d 70, 1936 Ky. LEXIS 27 ( Ky. 1936 ); Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ); Southeastern Greyhound Lines v. Conklin, 303 Ky. 87 , 196 S.W.2d 961, 1946 Ky. LEXIS 790 ( Ky. 1946 ); Hoskins v. Bloomer, 304 Ky. 543 , 201 S.W.2d 716, 1947 Ky. LEXIS 675 ( Ky. 1947 ); Conley v. Marshall, 304 Ky. 745 , 202 S.W.2d 382, 1947 Ky. LEXIS 710 ( Ky. 1947 ); Browning v. Moss Williams & Co., 306 Ky. 520 , 208 S.W.2d 495, 1948 Ky. LEXIS 593 ( Ky. 1948 ); Black v. Bishop, 307 Ky. 40 , 209 S.W.2d 482, 1948 Ky. LEXIS 660 ( Ky. 1948 ); Martin v. Cornett-Lewis Coal Co., 287 S.W.2d 164, 1956 Ky. LEXIS 449 ( Ky. 1956 ); Leep v. Kentucky State Police, 340 S.W.2d 600, 1960 Ky. LEXIS 57 ( Ky. 1960 ); Cabe v. Dudgeon, 404 S.W.2d 283, 1966 Ky. LEXIS 291 ( Ky. 1966 ); Brown v. Knuckles, 413 S.W.2d 899, 1967 Ky. LEXIS 403 ( Ky. 1967 ); Hoop v. Hahn, 568 S.W.2d 57, 1978 Ky. App. LEXIS 548 (Ky. Ct. App. 1978); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987).

Research References and Practice Aids

Kentucky Law Journal.

Salmon, Equal Protection of the Laws, Venue Statutes Distinguishing Between Residents and Nonresidents, 26 Ky. L.J. 258 (1938).

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Northern Kentucky Law Review.

Comments, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Child Against Parent, Form 256.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Slander Per Se Against Private Defendant, Form 129.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Libel and Slander, § 129.00.

452.465. Where action against persons constructively summoned must be brought.

Excepting the actions mentioned in KRS 452.400 to 452.425 , both inclusive, and in KRS 452.440 and KRS 452.470 , an action against a defendant who may be proceeded against by a warning order, must be brought in a county in which the defendant resides at the commencement of the action; or in which he has property; or, in which a person resides against whom he has a valid claim for money or property.

History. C. C. 75: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Application.

This section governs actions which are local and has no application to an action involving a foreign insurance company. Life Ins. Co. v. Edmonds, 247 Ky. 138 , 56 S.W.2d 689, 1933 Ky. LEXIS 346 ( Ky. 1933 ).

2. Action Against Nonresident.

Action against a nonresident may be brought in any county in which he has property or a valid claim for money or property; and, when the action is properly so brought, he may be served with a summons anywhere in the state and the action will thereafter proceed as other civil actions. Campbell v. Males Co., 152 Ky. 802 , 154 S.W. 918, 1913 Ky. LEXIS 754 ( Ky. 1913 ).

3. Improper Joinder of Parties.

Under KRS 396.110 (now repealed), providing that “when the heir or devisee shall alien, before suit brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the times of alienation to the creditors of the decedent or testator,” the administrator is not a necessary party to an action to enforce the liability of the heir, and, where the administrator was joined with the heir, the court erred in refusing to permit plaintiff to dismiss as to the administrator, and in then sustaining a demurrer to the jurisdiction, and dismissing the action as to both defendants, because the administrator resided in another county. Lancaster v. Wolff, 110 Ky. 768 , 62 S.W. 717, 23 Ky. L. Rptr. 233 , 1901 Ky. LEXIS 129 ( Ky. 1901 ).

4. Appeal.

Where claimant’s petition for review of a final order of the Workers’ Compensation Board was fatally deficient in failing to state the requisites of venue of either KRS 452.460 or this section, the Circuit Court was not authorized to consider the appeal. Thacker v. R. F. Coal Co., 332 S.W.2d 532, 1960 Ky. LEXIS 152 ( Ky. 1960 ).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ); Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Combs v. Hargis Bank & Trust Co., 234 Ky. 202 , 27 S.W.2d 955, 1930 Ky. LEXIS 147 ( Ky. 1930 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Prejudgment Seizure — Part II, Vol. 43, No. 2, April 1979, Ky. Bench & Bar 23.

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Nonresident Defendant, Form 150.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Carriers, § 134.00.

452.470. Where action for maintenance or dissolution must be brought.

An action for maintenance or dissolution must be brought in the county where the husband or wife usually resides.

History. C. C. 76: trans. Acts 1952, ch. 84, § 1; 1982, ch. 58, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1. Constitutionality.

Divorce venue statute requirement of this section that venue is in home county of the wife, if she has an actual residence in the state, and in the county of the husband if she does not, is unconstitutional both under the equal protection clause of the Fourteenth Amendment of the United States Constitution, since a gender-based venue does not serve important governmental objectives and is not substantially related to the achievement of those objectives, and Const., § 2, since the treatment of litigants under this section is patently unequal, arbitrary and unjust. Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 1981 Ky. App. LEXIS 242 (Ky. Ct. App. 1981) (decision under section prior to 1982 amendment).

2. Construction.

If either of the parties is domiciled in this state and the defendant is before the court by due process, the venue of a divorce action brought within the state is not jurisdictional in the sense that it affects the authority of the court to hear and determine the cause. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

3. Residence.

One may have a residence in a boarding house as well as in a rented building or in property owned; as applied to this section, the question being not how she lived, but where she determined to make her home. McClintock v. McClintock, 147 Ky. 409 , 144 S.W. 68, 1912 Ky. LEXIS 254 ( Ky. 1912 ).

Where wife told husband that she was going to leave their home in Mason County and then moved into her mother’s residence in Jefferson County, under this section the husband was required to bring his divorce suit in Jefferson County, with the result that the Mason Circuit Court did not have jurisdiction to entertain husband’s divorce action. Thomas v. Newell, 277 Ky. 712 , 127 S.W.2d 610, 1939 Ky. LEXIS 724 ( Ky. 1939 ).

In action by husband, a resident of Kentucky, for divorce from wife who was a resident of Minnesota where all the steps necessary for acquiring constructive service on the wife were in full and exact conformity with the express provisions of the law providing for and directing the manner in which constructive service process might be obtained against a nonresident defendant, the wife was before Kentucky court and such court had jurisdiction of the action. Davidson v. Davidson, 300 Ky. 305 , 188 S.W.2d 464, 1945 Ky. LEXIS 539 ( Ky. 1945 ).

Where parties actually resided in Fayette County and the proof did not establish an intent on the part of the wife to remove her residence out of state when she left for a visit, her residence was in Fayette County notwithstanding her husband had moved to another county. Gross v. Ward, 386 S.W.2d 456, 1965 Ky. LEXIS 507 ( Ky. 1965 ).

A wife who moved to Calloway County and rented a residence there was a resident of that county although she maintained property in Trigg County to allow her children to finish their school year there and as a base for her children and for herself as she continued to work in Trigg County. Calhoun v. Peek, 419 S.W.2d 152, 1967 Ky. LEXIS 142 ( Ky. 1967 ).

4. — Change by Wife.

The domicile of the husband is the only domicile of the wife, and she cannot change her domicile without his consent, but she may leave him and change her residence, as contemplated in this section. Johnson v. Johnson, 75 Ky. 485 , 1877 Ky. LEXIS 105 ( Ky. 1877 ).

Where plaintiff left her husband’s home in Mason County on September 28, 1895, and filed her petition for divorce and alimony in Kenton County on October 1, 1895, alleging that she resided in Kenton County and that said county was her place of residence, the court of that county had jurisdiction to hear and determine the cause of action. Gooding v. Gooding, 42 S.W. 1123, 19 Ky. L. Rptr. 967 (1897).

The residence of the husband, if he has one in this state, is the residence of the wife, unless she abandons him and takes up her residence in some other county. Smith v. Davis, 170 Ky. 379 , 186 S.W. 176, 1916 Ky. LEXIS 89 ( Ky. 1916 ).

Wife properly brought alimony action in Wolfe Circuit Court after she was denied the right to return to her husband’s home in Montgomery County and then established residence at her father’s home in Wolfe County. Faulkner v. Faulkner, 246 Ky. 238 , 54 S.W.2d 905, 1932 Ky. LEXIS 735 ( Ky. 1932 ).

Where wife had expressed an intention to take up a new residence in Jefferson County and to bring a divorce action in that county, and had rented an apartment in Louisville and moved about one half (1/2) of her personal belongings to that apartment, and after spending the night in her old apartment in Carroll County was engaged in moving the rest of her belongings, she had not abandoned her Carroll County residence, regardless of her intention, and under this section the venue of her husband’s suit for divorce could be properly brought in Carroll County. Stewart v. Yager, 272 S.W.2d 674, 1954 Ky. LEXIS 1126 ( Ky. 1954 ).

Where wife leaves her husband and moves to another county with a fixed intention of remaining there permanently, the county to which she moved is the proper place to file her divorce action. Carter v. Carter, 273 S.W.2d 823, 1954 Ky. LEXIS 1208 ( Ky. 1954 ).

Although a wife can change her residence from that of her husband, intention alone is not sufficient, and while no particular time is necessary to acquire a new residence, good faith is required; also, the wife must remove herself and a substantial portion of her belongings, and the evidence must show that she has actually and completely abandoned her former residence. Sebastian v. Turner, 320 S.W.2d 794, 1959 Ky. LEXIS 249 ( Ky. 1959 ).

Use of quoted word “usually” resides, indicates an intent upon part of legislature that place of abode must have become established as a residence, and something more is required than overnight removal of wife’s person from one place to another for commencing suit for divorce. Sebastian v. Turner, 320 S.W.2d 794, 1959 Ky. LEXIS 249 ( Ky. 1959 ).

Where the evidence indicated that the wife had returned to her parents’ home in Kentucky at her husband’s request more than one (1) year before filing her petition for divorce, the fact that she went to Missouri to attempt a reconciliation, but did not live with the husband there, did not prevent her meeting the residence requirement for a divorce. Halcomb v. Halcomb, 337 S.W.2d 32, 1960 Ky. LEXIS 360 ( Ky. 1960 ).

Where wife left husband’s residence in Madison County with part of her personal belongings and rented quarters in Fayette County on the same day, the Fayette Circuit Court had jurisdiction of her divorce action, which was filed four (4) days later, since she was a bona fide resident of Fayette County. Whitaker v. Bradley, 349 S.W.2d 831, 1961 Ky. LEXIS 70 ( Ky. 1961 ).

Where husband filed divorce action in Pulaski County at 9:30 a.m. on the same day that wife changed her place of residence to Fayette County and filed a divorce action in that county, the Pulaski Circuit Court properly overruled wife’s motion to dismiss husband’s action, since she made no showing that she was a resident of Fayette County at 9:30 a. m. when the husband’s action was commenced in Pulaski County. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

Where wife began the day as a usual resident of Pulaski County, but changed her place of usual residence to Fayette County during the day, Pulaski County remained her place of usual residence during the period of transfer and until she established her residence in Fayette County. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

5. Counterclaim by Nonresident.

A nonresident defendant may counterclaim for absolute divorce although not a resident of Kentucky for required time. Snook v. Snook, 234 Ky. 314 , 28 S.W.2d 1, 1930 Ky. LEXIS 171 ( Ky. 1930 ).

6. Writ Against Improper Venue.

Where wife moved from husband’s residence in Jessamine County to Fayette County, she was entitled to a writ of prohibition against the judge of the Jessamine Circuit Court ordering him to refrain from entering any orders in husband’s divorce action filed six (6) days after wife had moved to Fayette County, since no length of time is required by law to effect a change of residence. Brumfield v. Baxter, 307 Ky. 316 , 210 S.W.2d 972, 1948 Ky. LEXIS 736 ( Ky. 1948 ).

Where wife had not completely abandoned her home in Lexington and had not in good faith established a new residence in Wolfe County, the Wolfe Circuit Court was without jurisdiction to entertain wife’s divorce action, with the result that a permanent writ of prohibition was granted by the Court of Appeals against the Wolfe Circuit Court. Sebastian v. Turner, 320 S.W.2d 794, 1959 Ky. LEXIS 249 ( Ky. 1959 ).

Court of Appeals will exercise its discretionary powers under Const., § 110 to consider the merits of venue questions in divorce actions, and in such cases the remedy of prohibition is administratively appropriate in that it tends to prevent a disorderly race in two (2) different courts to an unappealable judgment. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

7. Removal of Action.

Under the provisions of KRS 425.260 (repealed) a divorce action was properly removed and consolidated with another case in which an attachment against the same defendant was pending even though the venue for the divorce action was fixed in the county from which it was removed by this section. Alsmiller v. Caudill, 257 Ky. 666 , 79 S.W.2d 15, 1935 Ky. LEXIS 84 ( Ky. 1935 ).

8. Waiver of Jurisdiction.

Where defendant is actually summoned or appears and fails to make proper objection to the jurisdiction, the objection to the jurisdiction of the court is waived if that court is one having jurisdiction to grant a divorce in any case. Johnson v. Johnson, 75 Ky. 485 , 1877 Ky. LEXIS 105 ( Ky. 1877 ).

Motion to dissolve temporary restraining order in divorce action on ground of jurisdiction was not a waiver of jurisdiction where wife in divorce action was resident of Laurel County and she objected to action being brought in Whitley County by her plea to jurisdiction. Petrey v. Sampson, 299 Ky. 96 , 184 S.W.2d 898, 1945 Ky. LEXIS 392 ( Ky. 1945 ).

Where order consolidating divorce action and action brought by grandparents to obtain custody of child was made to facilitate ruling on the pleas and motions raising the question of jurisdiction, agreement to consolidate was not a waiver of jurisdiction and where defendant had not been afforded opportunity to raise question of jurisdiction by motion or other pleading and first pleading filed by her was plea to the jurisdiction, presence of defendant and her attorney at taking of depositions was not a waiver of jurisdiction. Petrey v. Sampson, 299 Ky. 96 , 184 S.W.2d 898, 1945 Ky. LEXIS 392 ( Ky. 1945 ).

This section is not jurisdictional in the sense of being beyond the power of the parties to waive. Jones v. Jones, 320 S.W.2d 124, 1959 Ky. LEXIS 216 ( Ky. 1959 ).

Where wife brought an action for divorce in the Perry Circuit Court after she had resided at her father’s home in Leslie County for six (6) months, and where the husband did not make any appearance in the action, nor raise any question of jurisdiction or venue, the court erred in dismissing the action on the ground of lack of jurisdiction, since the husband’s failure to act waived the objection to the jurisdiction. Jones v. Jones, 320 S.W.2d 124, 1959 Ky. LEXIS 216 ( Ky. 1959 ).

9. — By Agreement.

If the parties can agree on a county of venue where both sides can receive a fair trial, then the trial court should give substantial weight to the agreement of the parties and authorize the change of venue to the county agreed upon, because the agreement dispenses with statutory requirements of a trial court to conduct an evidentiary hearing to determine whether the defendant could receive a fair trial in an adjacent county since venue, unlike subject-matter jurisdiction, may be waived by the parties to a civil or criminal action by agreement or otherwise. Commonwealth v. Hampton, 814 S.W.2d 584, 1991 Ky. LEXIS 112 ( Ky. 1991 ).

10. Objections Waived.

Where the husband, who was served with a valid service of summons in a divorce action, failed to timely file a motion to dismiss on the ground of improper venue, such failure waived the question of venue. Shepherd v. Mann, 490 S.W.2d 760, 1973 Ky. LEXIS 646 ( Ky. 1973 ).

Lack of venue cannot be raised at any time in the divorce action and was waived by the wife’s failure to timely raise it. Jaggers v. Martin, 490 S.W.2d 762, 1973 Ky. LEXIS 647 ( Ky. 1973 ).

As a former wife waived her objection to improper venue under KRS 452.470 by filing the divorce petition in a county where neither party resided, and as the former husband waived any objection to improper venue by failing to raise it by motion, responsive pleading, or an amendment thereof, his motion to transfer venue was properly denied. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

11. Discretion of Court.

The 1982 amendment of this section did not provide for venue of the action for dissolution and maintenance to be related to the parties’ last residence or any other factor; accordingly, it was within the discretion of the court to accept jurisdiction although it was not the county of marital residence. Lancaster v. Lancaster, 738 S.W.2d 116, 1987 Ky. App. LEXIS 583 (Ky. Ct. App. 1987).

Cited:

Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 ( Ky. 1910 ); Williamson v. Williamson, 183 Ky. 435 , 209 S.W. 503, 1919 Ky. LEXIS 505 , 3 A.L.R. 799 (1919); Blanton v. Sparks, 507 S.W.2d 156, 1974 Ky. LEXIS 667 ( Ky. 1974 ); Martin v. Fuqua, 539 S.W.2d 314, 1976 Ky. LEXIS 59 ( Ky. 1976 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Whiteside, Domestic Relations — Recent Kentucky Developments, 1950 — 1955, 44 Ky. L.J. 60 (1955).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Leathers, Civil Procedure, 72 Ky. L.J. 315 (1983-84).

Northern Kentucky Law Review.

Comments, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Treatises

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.25.

Petrilli, Kentucky Family Law, Court Procedure, § 23.4.

452.475. Where action against contractor for public work may be brought.

Excepting the actions mentioned in KRS 452.465 , an action against a contractor who undertakes to construct, in whole or in part, any turnpike, bridge, railway, lock, dam, or other public work, for labor done, or materials or supplies furnished, for the construction or promotion of said work, may be brought in the county wherein the labor, or most of it, is done, or wherein the materials, or supplies, or most thereof, are furnished; and if such bridge connect two (2) counties, such action may be brought in either of them.

History. C. C. 77: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Contractor.

Defendant hydraulic engineer who contracted with a city to prepare plans and supervise construction of a waterworks system was not a contractor within the meaning of this section, with the result that this section did not fix the venue of an action against defendant by another engineer for money due under a parol contract for a division of the engineering fees to be paid defendant. Miller v. Batten, 273 S.W.2d 383, 1954 Ky. LEXIS 1170 ( Ky. 1954 ).

The word “contractor” as used in this section means construction contractor. Miller v. Batten, 273 S.W.2d 383, 1954 Ky. LEXIS 1170 ( Ky. 1954 ).

The term “contractor” as used in this section includes subcontractors. Stezer v. Whitehurst, 339 S.W.2d 454, 1960 Ky. LEXIS 457 ( Ky. 1960 ).

2. Place of Performance.

In action by subcontractor against his subcontractor for additional compensation over and above original contract price for alleged extra services performed in construction of reclamation building for railway company, venue was properly laid in the county where the work was performed. Stezer v. Whitehurst, 339 S.W.2d 454, 1960 Ky. LEXIS 457 ( Ky. 1960 ).

3. Waiver of Venue.

Venue of action under this section may be waived if proper objection is not made. Gillen v. Ill., 137 Ky. 375 , 125 S.W. 1047, 1910 Ky. LEXIS 580 (Ky. Ct. App. 1910).

Cited:

Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 23 Ky. L. Rptr. 1445 , 65 S.W. 593, 1901 Ky. LEXIS 306 ( Ky. 1901 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.480. Where transitory action may be brought.

An action which is not required by the foregoing provisions of KRS 452.400 to 452.475 to be brought in some other county may be brought in any county in which the defendant, or in which one (1) of several defendants, who may be properly joined as such in the action, resides or is summoned.

History. C. C. 78: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

KRS 452.455 was intended to apply only in cases where the defendant or one (1) of them resides in the state, or where the plaintiff was injured in the state, or resides in a county in the state in which the carrier passes, so that in the absence of these jurisdictional facts, this section is applicable. C. & O. R. Co. v. Cowherd, 16 Ky. L. Rptr. 373 (1894).

This section is not in conflict with KRS 452.460 . Bright v. Hammond, 105 Ky. 761 , 49 S.W. 773, 20 Ky. L. Rptr. 1583 , 1899 Ky. LEXIS 270 ( Ky. 1899 ).

This section is strictly construed in favor of a defendant who is not a resident of the county in which the suit is brought. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

2. Transitory Actions.

Defendant in transitory action may not be summoned in any county other than that of his residence, and he may not be summoned in county where he has gone for the sole purpose of defending an action. Jackson v. Lockport, 144 Ky. 43 , 137 S.W. 767, 1911 Ky. LEXIS 536 ( Ky. 1911 ).

In suit by wife which sought declaratory judgment that deceased husband was not a person of unsound mind on date of marriage, and that she was entitled to all of deceased husband’s property, if suit was one involving real estate it would be governed by KRS 452.400 , or if it was action to settle estate of deceased person it would be governed by KRS 452.415 and KRS 452.420 and would not be a transitory action as would be governed by this section. Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

This section does not control in the case of a remonstrance proceeding because it is not a transitory one, rather it is localized in the county in which the municipality is situated. Willis v. Corbin, 572 S.W.2d 610, 1978 Ky. App. LEXIS 601 (Ky. Ct. App. 1978).

If the contract is to be performed, in its essential parts, in more than one county, it does not make the action transitory subject to this section, but being an action on contract, it remains controlled by KRS 452.450 and must be brought under one of the other three (3) mandates of that section. Ford Motor Credit Co. v. Blackjack Coal Co., 609 S.W.2d 698, 1980 Ky. App. LEXIS 396 (Ky. Ct. App. 1980).

3. — Contracts.

Where the gist of the action is not the consequential injury but the breach of the contract, venue is not covered by KRS 452.460 but by this section as to the venue of the transitory action. Wood v. Downing's Adm'r, 110 Ky. 656 , 62 S.W. 487, 23 Ky. L. Rptr. 62 , 1901 Ky. LEXIS 116 ( Ky. 1901 ).

Action to recover damages for failure to comply with contract to cut trees is transitory. Willis v. Tomes, 141 Ky. 431 , 132 S.W. 1043, 1911 Ky. LEXIS 18 ( Ky. 1911 ).

Actions for money alleged to be due on contracts are transitory, but if the action is against a corporation and if the contract is entered into or is to be performed in a certain county, then such action is properly filed in the Circuit Court of the county in which the contract is entered into or to be performed, and that court has jurisdiction over the subject matter in such action. Holcomb v. Kentucky Union Co., 262 Ky. 192 , 90 S.W.2d 25, 1936 Ky. LEXIS 23 ( Ky. 1936 ).

Where plaintiff’s petition set up an oral contract with a corporation wherein the latter proposed that if plaintiff would continue working for it until all litigation over its large tract of land terminated, it would furnish him rent free about 200 acres of land, and where it was alleged that the contract was violated, with plaintiff praying for a personal judgment for his alleged services and the value of the improvements, his cause of action rested solely on an implied duty imposed upon the corporation by the operation of law, and is transitory, with venue governed by this section. Holcomb v. Kentucky Union Co., 262 Ky. 192 , 90 S.W.2d 25, 1936 Ky. LEXIS 23 ( Ky. 1936 ).

The trial court erred in requiring lessor to elect between two (2) alleged causes of action in contract and in tort, even though lessor described the way and manner of lease violations in terms usually descriptive of tortious action, since nowhere in the petition was it intimated that the injuries sued for were the result of a tortious trespass upon plaintiff’s property, with the result that the action was in contract and was a transitory one and the venue was governed by this section. Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ).

Provisions of this section could not be relied upon as giving county jurisdiction of action on contract, required to be brought in the county in which contract was made or to be performed. Trinity Universal Ins. Co. v. Mills, 293 Ky. 463 , 169 S.W.2d 311, 1943 Ky. LEXIS 649 ( Ky. 1943 ).

An action was not transitory under this section where the contract specified that payment was to be made at certain addresses or “at such other place as the holder thereof may from time to time designate in writing,” since this phrase was one clearly made in contemplation of a change of address or assignment of the note and security agreement. Ford Motor Credit Co. v. Blackjack Coal Co., 609 S.W.2d 698, 1980 Ky. App. LEXIS 396 (Ky. Ct. App. 1980).

4. — Real Property.

Action for breach of covenant or bond for conveyance of land is transitory, and the remedy therefor, exclusively in personam. Parish v. Oldham, 26 Ky. 544 , 1830 Ky. LEXIS 117 ( Ky. 1830 ) (decided under prior law).

Action for conveyance of land or compensation in damages, is transitory and process must be served on defendant in county in which action is filed, otherwise court has no jurisdiction. Dicken v. King, 26 Ky. 591 , 1830 Ky. LEXIS 132 ( Ky. 1830 ) (decided under prior law).

Suit for rescission or for specific performance of agreement respecting land is not local, but altogether transitory. Kendrick v. Wheatley, 33 Ky. 34 , 1835 Ky. LEXIS 13 ( Ky. 1835 ) (decided under prior law).

Action for specific performance of a contract to convey land is a transitory action, the venue of which is controlled by this section. Caudill v. Little, 293 S.W.2d 881, 1956 Ky. LEXIS 104 ( Ky. 1956 ).

5. — Enforcement of Lien.

In action to enforce lien embracing land in two (2) different counties, since some of the persons properly joined as defendants resided in the county in which action was brought, the Circuit Court of that county, by virtue of this section, acquired jurisdiction of the person of the debtor, although he resided and was summoned in another county. Hendrix v. Nesbitt, 96 Ky. 652 , 29 S.W. 627, 16 Ky. L. Rptr. 746 , 1895 Ky. LEXIS 134 ( Ky. 1895 ).

An action to enforce a lien on personal property is not required by KRS 452.400 to 452.475 , inclusive, to be brought in any particular county, and though it may be brought in the county where the property is located, it is purely transitory insofar as a personal judgment is concerned. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

6. — Contribution.

An action for contribution brought by the personal representative of a surety against the heirs and devisees of cosureties, jurisdiction, having been acquired of the person, will not be defeated because the petition sought also the enforcement of a lien on land situated in another county. Swift's Ex'x v. Donahue, 104 Ky. 137 , 46 S.W. 683, 20 Ky. L. Rptr. 446 , 1898 Ky. LEXIS 145 ( Ky. 1898 ).

An action for contribution brought by the personal representative of a surety against the heirs and devisees of cosureties, is transitory, and may be brought in a county where any of the defendants are summoned or reside. Swift's Ex'x v. Donahue, 104 Ky. 137 , 46 S.W. 683, 20 Ky. L. Rptr. 446 , 1898 Ky. LEXIS 145 ( Ky. 1898 ).

7. — Malpractice.

Action against a surgeon for malpractice, the injury being the result of a breach of contract, is transitory and may be brought in any county in which the defendant resides or is summoned, under provisions of this section, rather than KRS 452.460 , which requires action to be brought in the county in which the defendant resides, or in which the injury is done. Wood v. Downing's Adm'r, 110 Ky. 656 , 62 S.W. 487, 23 Ky. L. Rptr. 62 , 1901 Ky. LEXIS 116 ( Ky. 1901 ).

In malpractice action against several physicians, where the petition stated a separate and distinct cause of action against each physician, the Whitley Circuit Court did not have jurisdiction as to all of those physicians who contracted with plaintiff and treated him outside of Whitley County. Rose v. Sprague, 248 Ky. 635 , 59 S.W.2d 554, 1933 Ky. LEXIS 286 ( Ky. 1933 ).

8. — Action for Cutting Timber.

Action of assumpsit for cutting and removing timber is a transitory one and governed by this section and KRS 452.485 . Asher v. Cornett, 113 S.W. 131 ( Ky. 1908 ).

9. — Damages on Injunction Bond.

An action for damages on an injunction bond is transitory and must be brought in the county in which the defendants reside. Smith's Adm'r v. Miller, 140 Ky. 308 , 131 S.W. 5, 1910 Ky. LEXIS 238 ( Ky. 1910 ).

10. — Action by Surety on Bond.

Action to recover amount paid by plaintiff as surety on replevin bond for defendant was a transitory action, the venue of which was controlled by this section and KRS 452.485 . Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ).

11. — Leases.

Declaratory judgment suit involving 10 year leasehold is not within KRS 452.400 since such lease is only personal property, so that such an action must be brought in the county of defendant’s residence, under provisions of this section, since declaratory judgment act did not modify provisions of venue statutes, but simply allowed the action to be brought before a breach to fix the rights of the parties. Edwards v. Bernstein, 231 Ky. 100 , 21 S.W.2d 133, 1929 Ky. LEXIS 220 ( Ky. 1929 ).

12. — Wrongful Death.

An action for wrongful death occurring in Kentucky in which the defendant was a nonresident was not an action for injury to a person within KRS 452.460 and was properly brought as provided in this section in a county in which the defendant was summoned. Harrison v. Steffen, 51 F. Supp. 225, 1943 U.S. Dist. LEXIS 2368 (D. Ky. 1943 ).

Death action is transitory, and the law of the place where the injury occurred governs in respect to the right of action. Stewart's Administratrix v. Bacon, 253 Ky. 748 , 70 S.W.2d 522, 1934 Ky. LEXIS 730 (Ky. Ct. App. 1934). But see Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

Trial court erred in holding that an action for wrongful death was transitory, with venue controlled by this section, since death resulted from personal injuries and the venue should have been determined under KRS 452.460 . Cottengim's Adm'r v. Adams' Adm'x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 ( Ky. 1953 ).

13. — Damage to Freight.

An action to recover for loss and damage to a shipment of freight is a transitory action, maintainable wherever the defendant may be brought before the court. Knight v. Pennsylvania R. R., 280 Ky. 191 , 132 S.W.2d 950, 1939 Ky. LEXIS 101 ( Ky. 1939 ).

14. — Recovery of Personal Property.

An action for the recovery of specific personal property in which damages for detention are sought is a transitory action. Gover v. Wheeler, 296 Ky. 734 , 178 S.W.2d 404, 1944 Ky. LEXIS 616 ( Ky. 1944 ).

15. Proper Jurisdiction.

Admission by insurance company when sued, that it had no principal office or place of business in this state, that the transaction out of which the action arose did not take place with its agent in any county of the state, but was made in another state, together with the service of summons upon the insurance commissioner of this state, gave the Franklin Circuit Court jurisdiction of the action and the parties, since such a case involved a transitory action, governed by the provisions of this section. Barnes v. Union Cent. Life Ins. Co., 168 Ky. 253 , 182 S.W. 169, 1916 Ky. LEXIS 550 ( Ky. 1916 ).

The summoning of one of several codefendants in the county in which the suit is filed, where the petition states a cause of action against the defendant so summoned, confers jurisdiction on the court to try the action as to the other defendants summoned outside of the county, notwithstanding the fact that the defendant served in the county voluntarily entered it to submit to the jurisdiction. Bell v. Duncan, 196 Ky. 574 , 245 S.W. 141, 1922 Ky. LEXIS 557 ( Ky. 1922 ).

Where all parties were necessary defendants and their rights would be affected by the decision when made, even though some would be more seriously affected than others, the court had jurisdiction of all parties where two (2) of the defendants were served in that county, although the other defendants lived elsewhere in the state. Commonwealth ex rel. Meredith v. Reeves, 289 Ky. 73 , 157 S.W.2d 751, 1941 Ky. LEXIS 21 ( Ky. 1941 ).

16. Improper Jurisdiction.

The Russell Circuit Court did not have jurisdiction of a Virginia insurance company under this section, where the company was not summoned in Russell County. Life Ins. Co. v. Edmonds, 247 Ky. 138 , 56 S.W.2d 689, 1933 Ky. LEXIS 346 ( Ky. 1933 ).

In action in Perry Circuit Court for alimony due under divorce decree, where defendant’s employer in Perry County was summoned as garnishee but no judgment was sought against it, and where defendant resided in Fayette County, the Perry Circuit Court could not acquire jurisdiction of the defendant if seasonable objection to jurisdiction was made. Coggins v. Coggins, 289 Ky. 570 , 159 S.W.2d 4, 1942 Ky. LEXIS 575 ( Ky. 1942 ).

Madison Circuit Court did not have jurisdiction of the person of defendant in action to recover amount required to be paid by plaintiff as surety on replevin bond, where defendant neither resided nor was summoned in the county where suit was brought, notwithstanding the name of defendant had not been stricken from the registration of voters in Madison County and was not found on registration list in county claimed as residence. Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ).

Action in Powell Circuit Court to recover money judgment on a bond which defendants had executed in a prior suit was a transitory action, and the Powell Circuit Court should have sustained defendants’ motion to quash the return on the summons since the defendants were residents of Perry County, because, under this section, the action should have been brought in Perry County. Couch v. Watkins, 266 S.W.2d 342, 1954 Ky. LEXIS 815 ( Ky. 1954 ).

Plaintiff could not maintain transitory action for damages for alleged conversion of mortgaged personal property in Clark County against Jefferson County resident, even though another defendant was joined against whom the plaintiff had a claim on a note which originated in Clark County, but where the other defendant was also a nonresident of Clark County, so that a personal judgment could not be obtained against him there, with the result that plaintiff could not proceed against Jefferson County defendant in an action ancillary to the suit on the note. Clark County Nat'l Bank v. Sanderson, 316 S.W.2d 64, 1957 Ky. LEXIS 2 ( Ky. 1957 ).

Because the circuit court of the county in which a lessor lived was an improper venue, and because venue was never waived, a default judgment against a lessee was void; the word “may” in KRS 452.480 did not permit the filing of the complaint in the county of the lessor’s (plaintiff’s) residence. Winkler v. Germann, 329 S.W.3d 349, 2010 Ky. App. LEXIS 224 (Ky. Ct. App. 2010).

17. — Default Judgment.

Where defendant in transitory action in a Circuit Court in Kentucky resides and is summoned in a county of that state other than that in which the action is pending, and judgment is rendered against him by default, such judgment is void for want of jurisdiction and may be collaterally attacked. Burt & B. Lumber Co. v. Bailey, 175 F. 131, 1909 U.S. App. LEXIS 5735 (C.C.D. Ark. 1909).

Where defendant in assumpsit did not reside in the county in which the action was brought, and made no defense to the action before objecting to the jurisdiction of the court, court is without jurisdiction and default judgment must be set aside. Asher v. Cornett, 113 S.W. 131 ( Ky. 1908 ).

18. Waiver of Objection to Jurisdiction.

A voluntary appearance and answer by defendant, not served with summons issued to another county than that in which the action is brought, without filing a plea to the jurisdiction waives the objection. Parish v. Oldham, 26 Ky. 544 , 1830 Ky. LEXIS 117 ( Ky. 1830 ) (decided under prior law).

In action for appointment of a receiver and settlement of the affairs of a corporation which maintained offices or places of business only in Fayette and Carter Counties, and whose chief officer resided in Fayette County, by one who had rendered services to the corporation, asserting a lien on real estate, insofar as the action sought a personal judgment the action was transitory, and the corporation could enter its appearance and waive its right to be sued in Fayette or Carter County, but any other or further relief was not transitory, and could not be conferred by consent. Emmons v. Lexington & Carter County Min. Co., 112 Ky. 91 , 65 S.W. 593, 23 Ky. L. Rptr. 1445 , 1901 Ky. LEXIS 306 ( Ky. 1901 ).

Defendant’s special demurrer to trial court’s jurisdiction of the subject matter in transitory action for violation of lease was properly overruled, since the court had such jurisdiction, even though it had no jurisdiction over defendant’s person, where defendant had failed to raise such objection. Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ).

In transitory action against lessee for violation of lease, defendant waived service out of the county where the action was pending when he failed to assert his rights in apt time, but instead employed practice and took steps preparatory to a defense of the case on its merits, with the result that the trial court erred in sustaining defendant’s motion to quash the return of summons against him, since it came after he had waived his right to make that insistence. Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ).

Objection to jurisdiction was not waived because of the fact that after motion to quash and objections were overruled, defendant moved to transfer the case to ordinary docket, to discharge the attachment, and for permission to withdraw certain pleadings. Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ).

19. Loss of Jurisdiction of Defendant Served Elsewhere.

Where jury found for two (2) defendants served in the county in which action was brought and against one (1) served in another county, on motion of the latter before judgment of the court was entered on the verdict of the jury, the court should have dismissed the action as to him, notwithstanding he had appeared, answered and defended. Ward v. George, 64 Ky. 357 , 1866 Ky. LEXIS 152 ( Ky. 1866 ) (decided under prior law).

20. Action Where Defendant Is Summoned.

Where resident of this state is injured in another state through the negligence of a common carrier, which is a nonresident corporation doing business in this state, and which does not pass into the county in which the injured person resides, the action for the injury may be brought in any county in which the defendant is summoned. C. & O. R. Co. v. Cowherd, 16 Ky. L. Rptr. 373 (1894).

Action on a note by a nonresident against a nonresident may be brought in any county in which defendant may be summoned. Bishop v. Jackson, 91 S.W. 263, 28 Ky. L. Rptr. 1136 , 1906 Ky. LEXIS 357 (Ky. Ct. App. 1906).

Action against the members comprising the Kentucky board of pharmacy to coerce the performance by them of a ministerial duty, in the absence of special statutory provisions, may be brought in any county in which service of process is had upon any one (1) or more of said members. King v. Kentucky Board of Pharmacy, 157 Ky. 52 , 162 S.W. 561, 1914 Ky. LEXIS 229 ( Ky. 1914 ).

An action under KRS 418.040 to 418.090 to obtain an injunction and a declaration of rights under a mortgage could properly be maintained in the Circuit Court of any county where the defendants could be served with summons or where their appearance was entered. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

Under this section action could not be maintained in Floyd County against defendant, residing in Boyd County, unless service be obtained upon him in Floyd County. Adkins v. Belcher, 347 S.W.2d 538, 1961 Ky. LEXIS 371 ( Ky. 1961 ).

Where the defendant was served with summons in Muhlenberg County and was not a resident of Kentucky, venue lay in Muhlenberg County. Jones v. Campbell, 434 S.W.2d 653, 1968 Ky. LEXIS 244 ( Ky. 1968 ).

21. Nonresident Insurance Company.

Where a foreign insurance company had complied with provisions of law providing for resolution by insurance company that service on insurance commissioner is service on the company and it has no principal office or place of business in this state, and the cause of action did not arise out of a transaction with the company’s agent in any county in this state, a suit against the company is a transitory action and may be brought in the county of the insured’s residence, and process may be served upon the insurance commissioner. South v. Continental Casualty Co., 170 Ky. 249 , 185 S.W. 858, 1916 Ky. LEXIS 42 ( Ky. 1916 ).

22. Corporate Defendant.

When the residence of the chief officer of a corporation created by the laws of this state, and its principal office and place of business, are not in the county in which a transitory action is brought against such corporation, unless these facts appear in the petition, objection to the jurisdiction of the court over the person of the defendant cannot be made by demurrer. Such objection must be made by plea, but after answer to merits of the action, such plea cannot be maintained. Baker v. Louisville & N. R. Co., 67 Ky. 619 , 1868 Ky. LEXIS 206 ( Ky. 1868 ) (decided under prior law).

23. Defendants Properly Joined.

The indorser of a note may be sued jointly with the maker, and if the indorser is served in the county where the suit is brought the court has jurisdiction although the maker resides in another county, and is served there, and the indorser went to the county where the suit was brought for the purpose of the process being served on him there pursuant to an agreement with the plaintiff that he would do so. Knoxville Banking & Trust Co. v. Mershon, 152 Ky. 169 , 153 S.W. 238, 1913 Ky. LEXIS 637 ( Ky. 1913 ).

Plaintiff’s right to proceed against Fayette County defendant in action in Gallatin County, upon service of process in Fayette County, was dependent upon his service of Gallatin County codefendants, and upon the cause of action being such as to make defendant properly joinable as a defendant with the Gallatin County codefendants. Bagby v. Suter, 310 S.W.2d 513, 1957 Ky. LEXIS 160 ( Ky. 1957 ).

Under CR 14.01, a third party against whom contribution or indemnification is sought may be joined regardless of whether the venue provisions of this section are met as to the third party. American Collectors Exchange, Inc. v. Kentucky State Democratic Cent. Executive Committee, 566 S.W.2d 759, 1978 Ky. App. LEXIS 523 (Ky. Ct. App. 1978).

24. Defendants Improperly Joined.

Where petition at best was only an attempt to recover damages sustained by the plaintiff because of breach of contract from defendant, who resided and was summoned in the county in which the action was brought, defendant was not alleged to have been a party to that contract and was, insofar as case was an action upon the contract, improperly joined as defendant. Johnson v. Brafford, 114 Ky. 96 , 70 S.W. 193, 24 Ky. L. Rptr. 864 , 1902 Ky. LEXIS 137 ( Ky. 1902 ).

Where an action is brought in one county to settle the affairs of a company which has assigned for benefit of its creditors, and stockholders are made parties thereto, the assignee cannot, by filing amended petitions against stockholders residing in other counties confer on the court jurisdiction to render personal judgments against such stockholders on debts due the corporation. Louisville Bldg. & Loan Ass'n v. Smith's Adm'r, 90 S.W. 1080, 28 Ky. L. Rptr. 980 (1906).

In an action brought pursuant to this section against a local defendant and a defendant who is a nonresident of, and served outside of the county, and who is improperly joined with the local defendant, and who does not defend without objecting to the jurisdiction of the court, or otherwise enter his appearance, the court acquires no jurisdiction over the nonresident defendant, and a judgment rendered against him is void. Willis v. Tomes, 141 Ky. 431 , 132 S.W. 1043, 1911 Ky. LEXIS 18 ( Ky. 1911 ).

Where Knox County brought an action against administratrix, attorneys, and bank for a mandatory injunction to require administratrix to sign a check payable to the treasurer of Knox County for money on deposit with the bank, which money was claimed to have been withheld unlawfully from the county and was recovered in settlement of suit against estate of ex-sheriff, the attorneys and the bank were not necessary parties to a determination of the real question at issue, so that service of process upon them in Knox County did not give the Knox Circuit Court jurisdiction of the administratrix who resided in Bell County and was the only necessary party. Knox County v. Kelly's Adm'x, 268 Ky. 361 , 105 S.W.2d 141, 1937 Ky. LEXIS 474 ( Ky. 1937 ).

Improper joinder will not confer jurisdiction over a defendant who is not summoned in the county, and the judgment against him is void unless he defends without objecting to the jurisdiction of the court, or otherwise enters his appearance. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

Johnson Circuit Court did not obtain jurisdiction of nonresident defendant who was improperly joined as defendant in cross-action when she filed a schedule directing the clerk to copy the entire record for use by her on appeal. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

Where resident defendant was entitled to a directed verdict, nonresident defendant was improperly joined, and the trial court erred in not sustaining nonresident’s motion to dismiss as to it. W. L. Lyons & Co. v. McGuire, 281 Ky. 289 , 135 S.W.2d 905, 1940 Ky. LEXIS 20 ( Ky. 1940 ).

The joinder as defendants of an insurance company being sued for breach of an agreement to repair damaged property and a motor company which had made a separate contract with the insurance company to repair the damaged property was improper. Trinity Universal Ins. Co. v. Mills, 293 Ky. 463 , 169 S.W.2d 311, 1943 Ky. LEXIS 649 ( Ky. 1943 ).

Action for sums allegedly expended by plaintiff for use and benefit of farm owner during time plaintiff operated the farm was a transitory action, and the Owen Circuit Court properly sustained owner’s motion to dismiss the action as to her, since she was not a resident of Owen County and was not served with summons in that county, and the court did not obtain jurisdiction of owner when plaintiff joined mortgage holder as a defendant and served him with summons in Owen County, because mortgage holder was not a proper party defendant. Maddox v. Lee, 255 S.W.2d 601, 1953 Ky. LEXIS 660 ( Ky. 1953 ).

25. Service on One Party.

One, at least, of the necessary parties must reside or be served with process in county where the suit is brought to give jurisdiction over parties not appearing who reside in and are served in other county. Kennedy's Adm'r v. Davenport, 52 Ky. 167 , 1852 Ky. LEXIS 6 ( Ky. 1852 ) (decided under prior law).

It should appear that one, at least, of joint defendants was served with process in the county where suit was brought before judgment was rendered against any one defendant. Pottinger v. Mayfield, 53 Ky. 647 ( Ky. 1854 ) (decided under prior law).

26. Improper Service.

Where defendant in transitory action was improperly served, he could obtain relief by pursuing the proper practice in apt time, which would require the court to either abate the action, or quash the service of the summons. Smith v. Wells, 271 Ky. 373 , 112 S.W.2d 49, 1937 Ky. LEXIS 245 ( Ky. 1937 ).

27. Answer by One Party.

Answer by party not residing in county where action is brought will not give jurisdiction as to the other party as if there had been service of process on one of the other parties in the county. Kennedy's Adm'r v. Davenport, 52 Ky. 167 , 1852 Ky. LEXIS 6 ( Ky. 1852 ) (decided under prior law).

28. Codefendant in Another County.

Service of process upon the husband in the county of suit, he, not claiming any interest in the property, will not give the court jurisdiction to render judgment against a defendant residing and summoned in another county. Basye v. Brown, 78 Ky. 553 , 1 Ky. L. Rptr. 256 , 1880 Ky. LEXIS 60 ( Ky. 1880 ).

Answer of one of several defendants not residing in county where suit is brought does not confer jurisdiction as to other defendants who are summoned out of county. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

29. Residence.

The statute is written in terms of “residence” and not “domicile;” it is a fundamental rule that a person may have many residences, thus subjecting himself to suit in multiple venues. Martin v. Utica Mut. Ins. Co., 697 S.W.2d 951, 1985 Ky. App. LEXIS 669 (Ky. Ct. App. 1985).

30. Judgment Against Nonresident.

Unless judgment or decree is rendered against the party residing or served with process in the county of the suit, there cannot be any judgment or decree against the party residing out of the county. Kennedy's Adm'r v. Davenport, 52 Ky. 167 , 1852 Ky. LEXIS 6 ( Ky. 1852 ) (decided under prior law).

31. Judgment Against Defendant Summoned Elsewhere.

Where it appears from the petition that no cause of action is set forth against defendants served with summons in county where suit is filed, judgment against a defendant served with summons in a different county is erroneous. Fernold v. Speer, 60 Ky. 459 , 1861 Ky. LEXIS 19 ( Ky. 1861 ) (decided under prior law).

Where a cause of action is not set forth in petition against defendants served with summons in county where action is brought, judgment against defendants served with summons in a different county would be erroneous. Meguiar v. Rudy, 70 Ky. 432 , 1870 Ky. LEXIS 92 ( Ky. 1870 ) (decided under prior law).

Where evidence fails to make out the cause of action against defendant served with summons in a county of the action it would be erroneous to render judgment against defendant served with summons in a different county. Meguiar v. Rudy, 70 Ky. 432 , 1870 Ky. LEXIS 92 ( Ky. 1870 ) (decided under prior law).

Judgment rendered against a defendant not summoned in the county where the action is brought, before one is or can be rendered against a defendant summoned in that county, was prematurely entered. Duckworth v. Lee, 73 Ky. 51 , 1873 Ky. LEXIS 50 ( Ky. 1873 ) (decided under prior law).

Cited:

Louisville & N. R. Co. v. Proctor, 51 S.W. 591, 21 Ky. L. Rptr. 447 (1899); Dinning v. Conn’s Adm’r, 124 Ky. 623 , 30 Ky. L. Rptr. 855 , 99 S.W. 914, 1907 Ky. LEXIS 223 ( Ky. 1907 ); White v. Kirby, 147 Ky. 496 , 144 S.W. 369, 1912 Ky. LEXIS 267 ( Ky. 1912 ); Job Iron & Steel Co. v. Clark, 150 Ky. 246 , 150 S.W. 367, 1912 Ky. LEXIS 892 ( Ky. 1912 ); Board of Church Extension v. Taylor County, 152 Ky. 518 , 153 S.W. 747, 1913 Ky. LEXIS 683 ( Ky. 1913 ); Campbell v. Males Co., 152 Ky. 802 , 154 S.W. 918, 1913 Ky. LEXIS 754 ( Ky. 1913 ); Martin v. Franklin, 160 Ky. 61 , 169 S.W. 540, 1914 Ky. LEXIS 399 ( Ky. 1914 ); Stone v. Winn, 165 Ky. 9 , 176 S.W. 933, 1915 Ky. LEXIS 476 ( Ky. 1915 ); Southern R. Co. v. Avey, 173 Ky. 598 , 191 S.W. 460, 1917 Ky. LEXIS 502 ( Ky. 1917 ); Maverick Oil & Gas Co. v. Howell, 193 Ky. 433 , 237 S.W. 40, 1922 Ky. LEXIS 48 ( Ky. 1922 ); Ocean Acci. & Guarantee Corp. v. Milford Bank, 236 Ky. 457 , 33 S.W.2d 312, 1930 Ky. LEXIS 765 ( Ky. 1930 ); Knight v. Pennsylvania R. Co., 264 Ky. 412 , 94 S.W.2d 1013, 1936 Ky. LEXIS 341 ( Ky. 1936 ); Crume v. Taylor, 272 Ky. 585 , 114 S.W.2d 1119, 1938 Ky. LEXIS 173 ( Ky. 1938 ); White v. Crouch, 280 Ky. 637 , 133 S.W.2d 753, 1939 Ky. LEXIS 163 ( Ky. 1939 ); Doyle v. Bryson, 289 Ky. 714 , 160 S.W.2d 34, 1942 Ky. LEXIS 634 ( Ky. 1942 ); Diggs v. Universal Underwriters, 295 Ky. 583 , 175 S.W.2d 24, 1943 Ky. LEXIS 307 ( Ky. 1943 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ); Marmor Ins. Agency v. Ardery, 240 S.W.2d 832, 1951 Ky. LEXIS 1021 ( Ky. 1951 ); Cash v. E’Town Furniture Co., 363 S.W.2d 102, 1962 Ky. LEXIS 270 ( Ky. 1962 ); Goodwin Bros. v. Preferred Risk Mut. Ins. Co., 410 S.W.2d 714, 1967 Ky. LEXIS 503 ( Ky. 1967 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987), overruled, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ), overruled in part, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ); Copass v. Monroe County Medical Found., 900 S.W.2d 617, 1995 Ky. App. LEXIS 123 (Ky. Ct. App. 1995).

Research References and Practice Aids

Kentucky Bench & Bar.

Drake, Kentucky Lawyers and the Fair Debt Collection Practices Act, 51 Ky. Bench & B. 32 (1987).

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 57 (1951).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

452.485. When judgment in transitory action not to be rendered against single defendant.

In action brought pursuant to KRS 452.480 , against a single defendant, there shall be no judgment against him, unless he be summoned in the county wherein the action is brought; or, unless he reside in such county when the action is brought and be summoned elsewhere in this state; or, unless he make defense to the action before objecting to the jurisdiction of the court.

History. C. C. 79: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

Provisions of this section, relating to right of defendant to be sued in county of his residence, are strictly construed in favor of defendants, who are not residents of county in which suit is brought. Caywood v. Williams, 218 Ky. 282 , 291 S.W. 377, 1927 Ky. LEXIS 152 ( Ky. 1927 ).

2. Determination of Residence.

The residence of a party is a question of fact to be determined from the evidence, hence, objection on ground that the court erred in submitting to the jury the question of residence of plaintiff is untenable. Louisville & N. R. Co. v. Munford, 68 S.W. 635, 24 Ky. L. Rptr. 416 , 1902 Ky. LEXIS 304 (Ky. Ct. App. 1902).

The fact that name of defendant who filed motion to quash summons served on him in Breathitt County, on ground that he was a resident of Breathitt County and not of Madison County where the action was brought, had not been stricken from the registration of voters in Madison County and was not found on registration list of voters in Breathitt County was not conclusive that defendant was still a citizen or resident of Madison County. Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265 , 146 S.W. 770, 1912 Ky. LEXIS 452 ( Ky. 1912 ).

Where defendant was served with summons in Breathitt County in action in Madison Circuit Court, and where defendant’s plea and supporting affidavit maintained that he had been a resident of Breathitt County for two and one half (2 1/2) years, which plea was undenied by any plea, counter-affidavit, or otherwise, defendant must be treated as a resident of Breathitt County. Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ).

3. Ineffective Judgment.

Where, in an action of assumpsit, in Leslie Circuit Court, it did not appear that the defendant resided in Leslie County when the action was brought, or that he made defense to the action before objecting to the jurisdiction of the court, and since he was not summoned in Leslie County, but in Bell County, the court was without jurisdiction and, therefore, erred in refusing to set aside a default judgment; however, defendant entered his appearance by prosecuting appeal so he was before the court upon return of case. Asher v. Cornett, 113 S.W. 131 ( Ky. 1908 ).

Despite the provisions of CR 12, a default judgment may not be rendered against a defendant in a transitory action where the defendant is not a resident of the county in which the action was brought, nor was he served with summons in that county, nor did he make defense to the action before judgment was entered. Cash v. E'Town Furniture Co., 363 S.W.2d 102, 1962 Ky. LEXIS 270 ( Ky. 1962 ).

4. — Service Outside County of Suit.

Where suit was brought in the county of defendant’s residence, process issued to that county and an adjoining county, and served in the latter county in time for judgment, but not in the county of defendant’s residence in time for judgment, it was error to render judgment upon the service in the foreign county. Raymon v. Reed, 55 Ky. 345 , 1855 Ky. LEXIS 50 ( Ky. 1855 ) (decided under prior law).

Where an ordinary action was brought in Graves County, the defendant not then residing there, and, on the return of process executed in Webster County, judgment was rendered against the defendant, the judgment was not merely a clerical misprision, but was erroneous and void. Ruby v. Grace, 63 Ky. 540 , 1866 Ky. LEXIS 55 ( Ky. 1866 ) (decided under prior law).

In an action in the Grant Circuit Court against one (1) defendant only, where the summons was served on him in Harrison County, and judgment by default was rendered against him on three (3) notes, no special reason for such service appearing in the record, the court should have refused to have pronounced judgment unless any such special cause for such service was manifested to the court and the defendant, knowing that no such causes existed, was not required to respond to such service, but might regard it as totally insufficient to authorize a judgment against him. Dyas v. Lindsey, 67 Ky. 349 , 1868 Ky. LEXIS 134 ( Ky. 1868 ) (decided under prior law).

Default judgment, rendered in a Kentucky Circuit Court, in a transitory action, against a defendant, not legally and properly served with summons in court where suit is brought and who never appeared in said action, is void and subject to collateral attack. Burt & B. Lumber Co. v. Bailey, 175 F. 131, 1909 U.S. App. LEXIS 5735 (C.C.D. Ark. 1909).

Under provisions of this section service of summons on defendant in Powell County did not authorize a judgment against him in Estill County, there being nothing in the record to show that defendant resided in Estill County when the action was brought. Hatton v. Rogers, 134 Ky. 840 , 121 S.W. 698, 1909 Ky. LEXIS 442 ( Ky. 1909 ).

5. Recovery of Bond Payment.

Action to recover amount required to be paid by plaintiff as surety on a replevin bond for defendant was a “transitory action,” and the venue thereof was controlled by statutes dealing with transitory actions against a single defendant. Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265 , 146 S.W. 770, 1912 Ky. LEXIS 452 ( Ky. 1912 ).

6. Lack of Jurisdiction.

Where an action is brought in Kenton Circuit Court to settle the affairs of an insolvent corporation, two (2) stockholders being made parties, though no relief is sought against them, and separate amended petitions are filed seeking to obtain judgments on notes of each, since neither of the defendants resided in Kenton County and neither of them was summoned in that county, and both objected to the jurisdiction of the court before interposing a defense, the court properly dismissed the actions against such stockholders. Louisville Bldg. & Loan Ass'n v. Smith's Adm'r, 90 S.W. 1080, 28 Ky. L. Rptr. 980 (1906).

In action against bankrupt corporation and its directors, the Fleming Circuit Court properly dismissed the case for lack of jurisdiction, where, assuming that the contract upon which suit was brought was made in Fleming County, so that the court had jurisdiction of the corporation, the court did not acquire jurisdiction of the nonresident directors, since no summons was served seeking to make the corporation a party defendant. Caywood v. Williams, 218 Ky. 282 , 291 S.W. 377, 1927 Ky. LEXIS 152 ( Ky. 1927 ).

Where actions were brought in Jefferson County to obtain possession of eight (8) race horses and for an accounting of funds, and the summonses were directed to the sheriff of Daviess County where defendant resided, under this section the Jefferson Circuit Court did not obtain personal jurisdiction of the defendant. Weant's Adm'r v. Ellis, 287 S.W.2d 446, 1955 Ky. LEXIS 117 ( Ky. 1955 ).

7. — Defense on the Merits.

Defendant’s action by cross petition against his codefendant, being against a single defendant, is governed by this section, and service of process thereon must be had in the county where the action was pending, and after objecting to the jurisdiction of the court, such defendant may thereafter defend on the merits without entering his appearance. Muir v. Edelen, 156 Ky. 212 , 160 S.W. 1048, 1913 Ky. LEXIS 422 ( Ky. 1913 ).

Where Breathitt County resident’s plea to the jurisdiction of the Madison Circuit Court was overruled, he did not waive his motion to quash the return on the summons or his objection to the court’s assuming jurisdiction over his person by pleading to the merits of the action without entering his appearance. Williams v. Sanders, 293 Ky. 216 , 168 S.W.2d 552, 1942 Ky. LEXIS 9 ( Ky. 1942 ).

Cited:

Smith’s Adm’r v. Miller, 140 Ky. 308 , 131 S.W. 5, 1910 Ky. LEXIS 238 ( Ky. 1910 ); Willis v. Tomes, 141 Ky. 431 , 132 S.W. 1043, 1911 Ky. LEXIS 18 ( Ky. 1911 ); White v. Kirby, 147 Ky. 496 , 144 S.W. 369, 1912 Ky. LEXIS 267 ( Ky. 1912 ); Campbell v. Males Co., 152 Ky. 802 , 154 S.W. 918, 1913 Ky. LEXIS 754 ( Ky. 1913 ); White v. Crouch, 280 Ky. 637 , 133 S.W.2d 753, 1939 Ky. LEXIS 163 ( Ky. 1939 ); W. L. Lyons & Co. v. McGuire, 281 Ky. 289 , 135 S.W.2d 905, 1940 Ky. LEXIS 20 ( Ky. 1940 ); Farmers Nat’l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ); Marmor Ins. Agency v. Ardery, 240 S.W.2d 832, 1951 Ky. LEXIS 1021 ( Ky. 1951 ); Couch v. Watkins, 266 S.W.2d 342, 1954 Ky. LEXIS 815 ( Ky. 1954 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Drake, Kentucky Lawyers and the Fair Debt Collection Practices Act, 51 Ky. Bench & B. 32 (1987).

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

452.490. When judgment in transitory action not to be rendered against several defendants — Bankruptcy.

In an action brought pursuant to KRS 452.480 , against several defendants, no judgment shall be rendered against any of them, upon the service of a summons out of the county in which the action is brought, if no one (1) of them be summoned in that county, nor resided therein when the action was commenced; nor if the action be discontinued or dismissed as to the defendant who resided, or was summoned, in that county; nor if judgment be rendered in his favor, unless a defendant summoned out of that county make defense without objecting to the jurisdiction of the court: provided, that a judgment for a defendant, who resided or was summoned in that county upon a plea of his discharge as a bankrupt, shall not prevent a judgment against any other defendant, in an action brought before the commencement of the proceedings in which the discharge was obtained; but after such judgment, upon a plea of discharge in bankruptcy, a defendant not summoned in the county, nor residing therein at the commencement of the action, may, by answer, deny the liability of such bankrupt. The issue as to the original liability of such bankrupt shall be tried as if he were still a party, and the plaintiff shall not have judgment against the defendant not summoned nor residing in the county, unless it be decided that the bankrupt was originally liable.

History. C. C. 80: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. In General.

In chancery, as at law, at least one (1) of the necessary parties must reside or be served with process in the county where the suit is brought to give jurisdiction over parties not appearing, resident in and served in other counties, and unless judgment or decree is rendered against the party resident in the county of the suit or process served, there can be no judgment or decree against the party residing out of the county, and answer by a party not residing in the county where suit is brought will not give jurisdiction as to the other parties, as if there had been service of process on one of the other parties in that county. Kennedy's Adm'r v. Davenport, 52 Ky. 167 , 1852 Ky. LEXIS 6 ( Ky. 1852 ) (decided under prior law).

2. Codefendant Properly Served.

Where one (1) of several defendants is properly served in the county where the suit is brought, the court thereby obtains jurisdiction against the other defendants who were served with process in a different county. Austin v. First Nat'l Bank, 150 Ky. 113 , 150 S.W. 8, 1912 Ky. LEXIS 839 ( Ky. 1912 ).

3. Codefendant Served Elsewhere.

Where, in an action by the assignee of a claim not assignable by statute, the assignor is made a defendant and served with process in the county in which the action is brought, such does not authorize judgment against the debtor served in another county, unless the plaintiff shows himself entitled to a recovery against such assignor. Fernold v. Speer, 60 Ky. 459 , 1861 Ky. LEXIS 19 ( Ky. 1861 ) (decided under prior law).

4. Defendants Improperly Served.

In action for damages on an injunction bond, wherein none of the defendants were residents of, or served with summons in, the county where suit is filed, demurrer to the jurisdiction of the court was properly sustained. Smith's Adm'r v. Miller, 140 Ky. 308 , 131 S.W. 5, 1910 Ky. LEXIS 238 ( Ky. 1910 ).

5. Improper Joinder.

Where Estill County defendant was entitled to directed verdict in Estill County action, joinder of such defendant with partnership residing in Fayette County was improper, with the result that Estill Circuit Court did not have jurisdiction of partnership and should have sustained its motion to dismiss the action as to it. W. L. Lyons & Co. v. McGuire, 281 Ky. 289 , 135 S.W.2d 905, 1940 Ky. LEXIS 20 ( Ky. 1940 ).

6. Loss of Jurisdiction over Codefendant.

Where, in an action against three defendants for trespassing, process was served on two (2) in the county in which the action was brought, and on the other in another county, and on the trial the jury found for the two (2) defendants and against the one (1) who was served in another county, on motion of the latter, before the judgment of the court was entered on the verdict of the jury, the court ought to have dismissed the action as to him, notwithstanding he had appeared, answered and defended. Ward v. George, 64 Ky. 357 , 1866 Ky. LEXIS 152 ( Ky. 1866 ) (decided under prior law).

Under KRS 452.455 , providing that an action against a carrier for personal injuries must be brought in the county in which the defendant or either of several defendants resides, or in which the plaintiff or his property is injured, or in which he resides, if he reside in a county into which the carrier passes, and this section, where an action is brought against two (2) telephone companies — one (1) a resident and the other a nonresident of the county — and no judgment is rendered against the resident company, the action must be dismissed as to the nonresident. Louisville Home Tel. Co. v. Beeler's Adm'r, 125 Ky. 366 , 101 S.W. 397, 31 Ky. L. Rptr. 19 , 1907 Ky. LEXIS 301 ( Ky. 1907 ).

In action to recover damages for malicious prosecution, no judgment can be rendered against the defendant served in another county when the action is dismissed as to all resident defendants. Munday v. Gott, 146 Ky. 177 , 142 S.W. 238, 1912 Ky. LEXIS 32 ( Ky. 1912 ).

Where resident of another county is joined as a defendant with a resident of the county in which a transitory action is brought, and the action is dismissed as against the resident defendant of the county, it should also be dismissed as against the nonresident. Martin v. Franklin, 160 Ky. 61 , 169 S.W. 540, 1914 Ky. LEXIS 399 ( Ky. 1914 ).

In an action for damages against two (2) telephone companies for negligently delaying the delivery of a message, one (1) of the companies had a residence and lines in the county where the action was brought and was summoned therein, and the other had not and was summoned in another county, and where on the trial there was a nonsuit as to the telephone company having a residence in the county of the action and summoned therein, the trial court was without jurisdiction to render a judgment against the other telephone company, not residing or summoned in the county where the suit was brought, unless it had, without properly objecting to the jurisdiction of the court, filed an answer setting a defense on the merits. Gainesboro Tel. Co. v. Buckner, 160 Ky. 604 , 169 S.W. 1000, 1914 Ky. LEXIS 496 ( Ky. 1914 ).

Where several defendants in a transitory action are sued jointly, and one (1) is served with process in another county and the action against the defendant who was served in the county in which the action was brought is dismissed, a judgment taken against the defendant who was served in another county is void, with the result that the order of dismissal as to the defendant summoned in the county in which the action was filed placed the plaintiff where he would have been had the action not been brought, and when the action was reinstated upon the docket, judgment could not be obtained without a new service of process. Second Nat'l Bank v. Prichard, 172 Ky. 190 , 189 S.W. 14, 1916 Ky. LEXIS 175 ( Ky. 1916 ).

In an action in the Christian Circuit Court involving a resident defendant and a nonresident defendant, the court had jurisdiction even though the nonresident had been improperly joined until a judgment was rendered in favor of the resident defendant, at which time the court lost jurisdiction of the nonresident, and should have sustained its motion for a judgment notwithstanding the verdict, and ordered the petition dismissed. University of Louisville v. Metcalfe, 216 Ky. 339 , 287 S.W. 945, 1926 Ky. LEXIS 931 ( Ky. 1926 ).

Where defendant, summoned without the county in cross action, is improperly joined as defendant and where the cross action was dismissed or discontinued as to all defendants summoned within the county, judgment entered against the nonresident (county) defendant was void since defendant, by filing a schedule directing the clerk to copy the entire record for use by her on appeal to the Court of Appeals, did not enter her appearance. Ramey v. Weddington, 268 Ky. 675 , 105 S.W.2d 824, 1937 Ky. LEXIS 516 ( Ky. 1937 ).

The court loses jurisdiction of the defendant residing outside the county when the action as to the resident defendants is for any reason dismissed as terminated in their favor. Diggs v. Universal Underwriters, 284 Ky. 160 , 143 S.W.2d 1067, 1940 Ky. LEXIS 455 ( Ky. 1940 ).

In Gallatin County action against defendants residing in Gallatin and Fayette Counties, plaintiff lost his right to maintain the action against the Fayette County defendant when the action was dismissed as to the Gallatin County defendants. Bagby v. Suter, 310 S.W.2d 513, 1957 Ky. LEXIS 160 ( Ky. 1957 ).

Action against Boyd County defendant could not be maintained in Floyd County, when judgment was rendered in favor of Floyd County defendant, over Boyd County defendant’s objection. Adkins v. Belcher, 347 S.W.2d 538, 1961 Ky. LEXIS 371 ( Ky. 1961 ).

7. Codefendant of Bankrupt.

Where one (1) of two (2) persons jointly bound on a debt has been discharged in bankruptcy, and a suit is brought to recover the debt, process may be served on the bankrupt in the county where the action is pending, and on the other defendant in another county, and, if the bankrupt does not plead his discharge in bankruptcy and lets judgment go against him by default, the other defendant cannot defeat the jurisdiction of the court by pleading the discharge in bankruptcy of his codefendant, since the plea of bankruptcy is personal and cannot be raised by anyone else. George Bohon Co. v. Moren & Sipple, 151 Ky. 811 , 152 S.W. 944, 1913 Ky. LEXIS 572 ( Ky. 1913 ).

8. Objection to Jurisdiction.

Objection to jurisdiction of an action under this section may be made by special demurrer to the petition, if on its face the want of jurisdiction is disclosed, but if not so disclosed the objection must be made by answer in the nature of a plea in abatement, or by motion to quash the summons and return, and if not made in either of these ways, and before the filing of an answer to the merits, the want of jurisdiction will be regarded as waived. Gainesboro Tel. Co. v. Buckner, 160 Ky. 604 , 169 S.W. 1000, 1914 Ky. LEXIS 496 ( Ky. 1914 ).

Judgment against nonresident defendant, joined with resident defendant and served outside county, was not void but only erroneous, where nonresident contested jurisdiction. Hays v. Baker, 237 Ky. 265 , 35 S.W.2d 296, 1931 Ky. LEXIS 584 ( Ky. 1931 ).

9. — Answer.

Party may in an answer plead both to the jurisdiction and to the merits, and the filing of such an answer does not constitute an appearance. Louisville Home Tel. Co. v. Beeler's Adm'r, 125 Ky. 366 , 101 S.W. 397, 31 Ky. L. Rptr. 19 , 1907 Ky. LEXIS 301 ( Ky. 1907 ).

10. — Waiver.

In action for professional services in Kenton Quarterly Court against wife who resided in Kenton County and husband who resided in Boone County, where the court sustained the wife’s demurrer to the petition as against her, but did not enter a final order of dismissal, husband waived all questions of jurisdiction and the venue of the action when he filed a separate answer and made separate defenses to the action in the quarterly court, with the result that he was not entitled to a writ of prohibition to keep Circuit Court Judge from entertaining an appeal from the quarterly court judgment. Doyle v. Bryson, 289 Ky. 714 , 160 S.W.2d 34, 1942 Ky. LEXIS 634 ( Ky. 1942 ).

11. Invalid Judgment.

Where neither of two (2) defendants had been served in the county in which action was brought, and neither had removed from the county after its commencement, a judgment against either by default would be unauthorized, unless he appeared and failed to object to the insufficiency of the service. Dyas v. Lindsey, 68 Ky. 506 , 1869 Ky. LEXIS 42 ( Ky. 1869 ) (decided under prior law).

If judgment is rendered against a defendant not summoned in the county where the action is brought, before one is or can be rendered against a defendant summoned in that county, it will be rendered before the action stands for trial, and will be deemed a clerical misprision. Duckworth v. Lee, 73 Ky. 51 , 1873 Ky. LEXIS 50 ( Ky. 1873 ) (decided under prior law).

12. Appeal from Improper Judgment.

A defendant, residing in another county, who is sued jointly with another who resides in the county where the suit is brought, and who objects to the jurisdiction of the court, may appeal from a judgment improperly entered against him and the appeal will not enter his appearance to the action. White v. Kirby, 147 Ky. 496 , 144 S.W. 369, 1912 Ky. LEXIS 267 ( Ky. 1912 ).

Nonresident defendant could not enjoin Letcher County judgment against him, where, after he unsuccessfully contested that court’s jurisdiction of his person, he then filed answer to the merits of the case, which at most would render the Letcher County judgment against him erroneous or voidable, and which could be remedied only by a proceeding in that court, or by reversal on appeal. Hays v. Baker, 237 Ky. 265 , 35 S.W.2d 296, 1931 Ky. LEXIS 584 ( Ky. 1931 ).

Cited:

Knoxville Banking & Trust Co. v. Mershon, 152 Ky. 169 , 153 S.W. 238, 1913 Ky. LEXIS 637 ( Ky. 1913 ); White v. Crouch, 280 Ky. 637 , 133 S.W.2d 753, 1939 Ky. LEXIS 163 ( Ky. 1939 ); Commonwealth ex rel. Meredith v. Reeves, 289 Ky. 73 , 157 S.W.2d 751, 1941 Ky. LEXIS 21 ( Ky. 1941 ); Coggins v. Coggins, 289 Ky. 570 , 159 S.W.2d 4, 1942 Ky. LEXIS 575 ( Ky. 1942 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987), overruled, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ), overruled in part, Conner v. George W. Whitesides Co., 834 S.W.2d 652, 1992 Ky. LEXIS 95 ( Ky. 1992 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

Northern Kentucky Law Review.

Philipps, The Kentucky Long Arm Statute: How “Long” Is It?, 4 N. Ky. L. Rev. 65 (1977).

452.495. When defendant in transitory action is immune from summons.

In an action brought pursuant to KRS 452.480 , a defendant who is summoned out of the county in which it is brought, and who did not reside therein when the action was begun, can not be summoned in that or any other action of the plaintiff whilst visiting such county for the sole purpose of defending the first-named action.

History. C. C. 81: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

Defendant in transitory action may not be summoned in any county other than that of his residence and he may not be summoned in county where he has gone for the sole purpose of defending an action. Jackson v. Lockport, 144 Ky. 43 , 137 S.W. 767, 1911 Ky. LEXIS 536 ( Ky. 1911 ).

2. Appearance in Another Matter.

Where plaintiff was temporarily in the state to testify in an appeal which she had taken from the judgment probating her father’s will and was served with summons in a suit against her by her father’s creditor, in which it was alleged that she had received more than the amount of the creditor’s claim from her father’s estate, such service was valid. Lewis v. Miller, 115 Ky. 623 , 74 S.W. 691, 24 Ky. L. Rptr. 2533 , 1903 Ky. LEXIS 141 ( Ky. 1903 ).

Cited:

Smith’s Adm’r v. Miller, 140 Ky. 308 , 131 S.W. 5, 1910 Ky. LEXIS 238 ( Ky. 1910 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

452.500. Removal of defendant after commencement of action.

If, after the commencement of an action in the county of the defendant’s residence, he move therefrom, the service of a summons upon him in any other county shall have the same effect as if it had been made in the county from which he moved.

History. C. C. 82: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1. Construction.

This section of the statutes is strictly construed in favor of defendants who are not residents of the county in which suit is brought. Caywood v. Williams, 218 Ky. 282 , 291 S.W. 377, 1927 Ky. LEXIS 152 ( Ky. 1927 ).

Cited:

Smith’s Adm’r v. Miller, 140 Ky. 308 , 131 S.W. 5, 1910 Ky. LEXIS 238 ( Ky. 1910 ).

Research References and Practice Aids

Kentucky Law Journal.

Stevens, Venue Reform in Kentucky — A Proposal, 40 Ky. L.J. 7 (1951).

452.505. Revenue and fiscal cases.

The following actions may be brought in the Franklin Circuit Court, or in the Franklin District Court, or in any other Circuit Court or District Court having venue:

  1. Actions to collect the revenue and all other claims, demands and penalties due the Commonwealth, or to have satisfaction made of judgments in favor of the Commonwealth, except those actions which are prosecuted by an appeal to the Kentucky Claims Commission under the provisions of KRS 49.220 and 131.110 .
  2. Actions against persons required to collect money due the Commonwealth, to pay money into the State Treasury, or to do any other act connected with the payment of money into the State Treasury after it has been collected, and against the sureties, heirs, devisees or representatives of such persons.
  3. Actions to surcharge and correct fee bills, accounts and settlements, with their debits and credits, and all claims against the Treasury allowed and approved by any court in the Commonwealth to any person.
  4. Actions to recover any fraudulent, erroneous or illegal account, fee bill, charge, credit or claim approved and allowed or paid out of the Treasury to any person.
  5. The defendant in any action brought in Franklin Circuit Court or Franklin District Court under the provisions of subsection (1) of this section for the collection of taxes assessed under KRS Chapter 141 shall at any time prior to the submission for judgment upon proper motion have a change of venue to the county in which he resides or his principal office or place of business is located at no cost to the defendant in Franklin Circuit Court or Franklin District Court.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 14, § 484, effective January 8, 1978; 1978, ch. 233, § 34, effective June 17, 1978; 2017 ch. 74, § 102, effective June 29, 2017.

Original Venue in Criminal Proceedings

452.510. Criminal prosecutions.

Unless otherwise provided by law, the venue of criminal prosecutions and penal actions is in the county or city in which the offense was committed.

History. 1145: reen. Acts 1962, ch. 234, § 32.

Compiler’s Notes.

This section was formerly compiled as KRS 431.010 .

NOTES TO DECISIONS

1. Purpose.

The purpose of mandating the prosecution of a case in the county in which the offense has been committed is to insure that the defendant is tried by an impartial jury from the vicinity in which the offense has been committed. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

2. Jurisdiction Distinguished.

The Circuit Courts of this state are never without “jurisdiction” to preside over the prosecution of offenses committed in Kentucky; rather, this section stipulates that “venue” is improper in the Circuit Court of a county other than that in which the offense has been committed. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

Pursuant to KRS 452.510 , venue in defendant’s criminal case could be changed from the first county, where venue was determined to be improper, to the second county where venue was proper, as defendant had a right under that statute to be tried where the offense was allegedly committed. Venue was not jurisdictional and no double jeopardy violation occurred regarding the conviction in the second county since the end of the trial in the first county was based on defendant’s own motion and defendant’s guilt in the first county had not been determined. Derry v. Commonwealth, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

3. Venue.

Prosecutions are confined to offenses committed within the county, and the indictment must describe the offense and state the time and place of its commission. Castle v. Commonwealth, 200 Ky. 577 , 255 S.W. 151, 1923 Ky. LEXIS 147 ( Ky. 1923 ).

In criminal prosecution, “vicinage,” as used in Const., § 11, means original venue in which offense charged, or part of it, was committed. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ). See Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

Venue is a jurisdictional fact of locality charged in the indictment and put in issue by a plea of not guilty. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ). See Sharp v. Waddill, 371 S.W.2d 14, 1963 Ky. LEXIS 85 ( Ky. 1963 ).

Defendant’s trial was not held in an improper venue because a reasonable jury could infer defendant intended to kill the victim in the county in which trial was held. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

4. — Change of.

A Circuit Court has no jurisdiction of an offense wholly committed in another county unless upon change of venue. Commonwealth v. Ward, 185 Ky. 295 , 215 S.W. 31, 1919 Ky. LEXIS 288 ( Ky. 1919 ).

Unless there has been a change of venue, a Circuit Court has no jurisdiction to try an offender unless the offense is proved to have been committed in the county where the court is held. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Venue relates to the forum that will hear the particular action. Venue in criminal prosecutions may be changed if it appears that the accused may not receive a fair and impartial trial in the county where the crime was committed. The Circuit Court had no authority to change venue based upon the convenience of the parties. Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 1996 Ky. App. LEXIS 100 (Ky. Ct. App. 1996).

5. — Not Guilty Plea.

A plea of not guilty puts in issue every material fact charged in the indictment, including venue. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Venue is a jurisdictional fact of locality charged in the indictment and put in issue by a plea of not guilty. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

6. — New County Created.

After the organization of a new county is complete, the courts of that county have jurisdiction of prosecutions arising within its limits although pending against defendant at the time in the old counties. In re Lay, 150 Ky. 448 , 150 S.W. 529, 1912 Ky. LEXIS 917 ( Ky. 1912 ).

7. — Separate Offenses.

Pulaski Circuit Court had jurisdiction of the offense of feloniously breaking into a garage and taking a car even though the defendant had previously been indicted in Rockcastle County on a larceny charge involving the same automobile because the charges were of two (2) separate offenses and the breaking into the garage had occurred in Pulaski County. Runyon v. Morrow, 192 Ky. 785 , 234 S.W. 304, 1921 Ky. LEXIS 141 ( Ky. 1921 ).

8. — Proof.

It is not necessary to show by direct evidence that the crime occurred in the county, as this may be inferred by facts and circumstances. Gilley v. Commonwealth, 280 Ky. 306 , 133 S.W.2d 67, 1939 Ky. LEXIS 119 ( Ky. 1939 ).

Proof that offense was committed within a few hundred yards of prosecutrix’ home, and that both prosecutrix and appellant lived in county where trial was had, was sufficient to fix venue. Gilley v. Commonwealth, 280 Ky. 306 , 133 S.W.2d 67, 1939 Ky. LEXIS 119 ( Ky. 1939 ).

In criminal cases it takes only slight evidence, either direct or circumstantial, to sustain the venue, since that does not affect the issue of guilt or innocence. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Venue will not be presumed, though it may be inferred from circumstances which fairly and reasonably afford a basis for the inference. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

It is necessary in every prosecution for crime that the venue be proved and that the jury find the offense to have been committed in the county as charged in the indictment. Lunce v. Commonwealth, 289 Ky. 706 , 160 S.W.2d 3, 1942 Ky. LEXIS 622 ( Ky. 1942 ).

Defendant’s contention that evidence failed to prove homicide was committed in Leslie County was without merit, where witness placed crime within 11/2 miles of Hyden, since the Court of Appeals, having judicial knowledge of the geography of the state, would know that any place within 11/2 miles of Hyden was within the confines of Leslie County. Howard v. Commonwealth, 304 Ky. 149 , 200 S.W.2d 148, 1947 Ky. LEXIS 601 ( Ky. 1947 ).

Venue will be sustained by slight evidence and slight circumstances which would allow the jury to infer where the crime was committed. Vinson v. Commonwealth, 248 S.W.2d 430, 1952 Ky. LEXIS 746 ( Ky. 1952 ).

Venue must be proved and although instructions submit it as one of the elements to be proven beyond a reasonable doubt, slight evidence, supported by inferences and reasonable presumptions of knowledge by local jurors is sufficient to establish it. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

Where the complaining witness testified that his cow was stolen from his farm near Foggertown in Clay County, there was sufficient proof that the property was taken within Clay County and venue in Clay Circuit Court was proper. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

While proof is required to show that a crime was committed in an area within the jurisdiction of the court only slight evidence from which a jury may infer where the offense was committed is sufficient to sustain proof of venue. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

Venue must be proved, but since it does not affect the issue of guilt or innocence, slight evidence, supported by inferences and reasonable presumptions of knowledge by local jurors, is sufficient. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ).

This section requires proof by the prosecutor that the offense did in fact occur in the county in which the case is being prosecuted. It has generally been held in this state that it is not necessary to show by direct evidence that the crime occurred in the county of its prosecution, but the fact may be inferred from evidence and circumstances which would allow the jury to infer where the crime was committed. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

Where there was an abundance of circumstantial evidence from which the jury could reasonably have inferred that the offense was committed in that county, the jury had a sufficient basis upon which they could infer that venue was established. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

Trial court properly exercised its discretion in sua sponte granting the Commonwealth the opportunity to re-open its case in order to present evidence to establish venue of defendant’s criminal trial, pursuant to KRS 452.510 , as the Commonwealth had established the street address where the incident occurred, but had failed to establish further elements to satisfy venue; pursuant to Ky. Const., § 11, defendant was to be tried by an impartial jury of the “vicinage,” which required that venue be proper. Ebertshauser v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Feb. 4, 2005).

9. — — Insufficient.

Mere reference in the evidence to certain streets will not sustain a verdict that the offense was committed within the jurisdiction of the court. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Where no evidence is introduced tending to show directly, indirectly or inferentially that the offense was committed within the jurisdiction of the court, a peremptory instruction should be given for the defendant. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Evidence showing that crime was committed on a farm which was about eight (8) miles distant from county seat, was insufficient to establish that crime was committed in county that had one (1) boundary line five (5) miles from county seat. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

Bracken County conviction for maliciously cutting and wounding another person was reversed because of the failure of the Commonwealth to establish that the crime was committed in Bracken County. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ).

10. — — Judicial Notice.

In prosecution for shooting and wounding in Pulaski County, testimony that shooting took place at town of Cedar Grove was sufficient to establish venue, since both court and jury were entitled to take notice that Cedar Grove was well within Pulaski County. Carr v. Commonwealth, 309 Ky. 234 , 217 S.W.2d 320, 1949 Ky. LEXIS 680 ( Ky. 1949 ).

11. — Determination by Court.

Where jurisdiction of a court depends on a fact which the court is required to ascertain, court has jurisdiction to determine that jurisdictional fact, and its judgment determining that fact is conclusive on the question of jurisdiction until set aside or reversed in direct proceedings and it cannot be attacked collaterally. Sharp v. Waddill, 371 S.W.2d 14, 1963 Ky. LEXIS 85 ( Ky. 1963 ).

12. — Misuse of Mortgaged Property.

Venue of prosecution for fraudulently selling, concealing, and disposing of mortgaged personal property is in any county through which the property was carried, and not in the county where the mortgage was recorded unless it is made to appear that the offense was begun, or some portion of it was committed, in that county. Commonwealth v. Johnson, 249 Ky. 200 , 60 S.W.2d 590, 1933 Ky. LEXIS 503 ( Ky. 1933 ).

13. Transporting Stolen Property.

Because the stolen property was brought into Warren County by the defendant, Warren County was a proper venue for the prosecution and the defendant’s motion for a directed verdict on the ground that the offenses were not committed in Warren County was properly overruled. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

Cited:

Spencer v. Commonwealth, 194 Ky. 699 , 240 S.W. 750, 1922 Ky. LEXIS 241 ( Ky. 1922 ); Faison v. Commonwealth, 405 S.W.2d 943, 1966 Ky. LEXIS 275 ( Ky. 1966 ); Hendron v. Commonwealth, 487 S.W.2d 275, 1972 Ky. LEXIS 61 ( Ky. 1972 ); Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ); Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988); Baze v. Commonwealth, 276 S.W.3d 761, 2008 Ky. LEXIS 297 ( Ky. 2008 ).

Opinions of Attorney General.

Where a couple was divorced in one county and the husband was ordered to pay child support, the county to which the wife and children moved had venue to issue a warrant under KRS 405.030 (now repealed). OAG 63-843 .

The venue for a prosecution under KRS 436.107 (repealed) reposes in either the county of origin or the county of receipt of the call. OAG 67-268 .

452.520. River or road dividing counties.

Where any part of a river, watercourse, highway, road or street constitutes the boundary line between two (2) counties, the venue is in both counties for the prosecution of crimes committed over the whole extent of such part of the river, watercourse, highway, road, street or any island in the river.

History. 1143: reen. Acts 1962, ch. 234, § 36.

Compiler’s Notes.

This section was formerly compiled as KRS 431.030 .

NOTES TO DECISIONS

1. Evidence.

Where evidence showed that killing took place in the area of a road whose center line was the county boundary, venue was proper even though there was no direct evidence to establish the exact place, including the county, in which the victim was killed. Collins v. Commonwealth, 508 S.W.2d 43, 1974 Ky. LEXIS 589 ( Ky. 1974 ).

Cited:

Vick v. Commonwealth, 236 Ky. 436 , 33 S.W.2d 297, 1930 Ky. LEXIS 757 ( Ky. 1930 ); Lacey v. Commonwealth, 251 Ky. 419 , 65 S.W.2d 61, 1933 Ky. LEXIS 873 (1933).

452.530. Rivers along state boundary.

The venue of prosecutions for crimes committed on the Mississippi, Ohio, Big Sandy or Tennessee Rivers is in any of the counties bordering on the same river.

History. 1144: reen. Acts 1962, ch. 234, § 38.

Compiler’s Notes.

This section was formerly compiled as KRS 431.040 .

452.540. Person in one county, offense in another.

Where a person in one county commits an offense in another county the trial may be in either county.

History. Enact. Acts 1962, ch. 234, § 48.

Opinions of Attorney General.

Where a couple was divorced in one county and the husband was ordered to pay child support, the county to which the wife and children moved had venue to issue a warrant under KRS 405.030 (now repealed). OAG 63-843 .

452.550. Offense partly in one county and partly in another.

Where an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs.

History. Enact. Acts 1962, ch. 234, § 49.

NOTES TO DECISIONS

1. Application.

This section means only that certain offenses are indictable and may be prosecuted in either county. Once an indictment is returned, however, the statute does not purport to empower a trial judge of that particular circuit to transfer the prosecution to another county, as if the indictment had been returned there in the first instance; such transfer would amount to a change of venue upon a ground and to counties of destination not embraced within the applicable statutes. Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

Defendant’s trial was not held in an improper venue because a reasonable jury could infer defendant intended to kill the victim in the county in which trial was held. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

2. Rape.

Where the initial abduction occurred in one county and was a sequential part of carrying out the purpose of having carnal knowledge of the victim in other county, the venue of the prosecution was in either county. Moore v. Commonwealth, 523 S.W.2d 635, 1975 Ky. LEXIS 121 ( Ky. 1975 ).

Where the evidence in a rape and robbery prosecution unequivocally disclosed that the defendant’s actions commenced in one county and continued in another county, the county where the initial abduction took place was the proper venue for the trial, even though venue would also have been proper in the second county. Pevlor v. Commonwealth, 638 S.W.2d 272, 1982 Ky. LEXIS 291 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3136 (U.S. 1983).

3. False Claims for Mileage and Expenses.

Where Warren County deputy sheriff filled out or caused to be filled out false claims for mileage and expenses in the transportation of prisoners under KRS 64.070 and KRS 440.090 which were filed with and paid by the department of finance in Franklin County, venue was proper in either Warren County where expense claims were filled out, mailed, checks received, cashed and funds diverted to persons other than payee, or in Franklin County where the claims were received, relied upon, processed and checks issued and mailed, since under this section venue in either county is proper where offense occurred in more than one (1) county; thus, omission in jury instructions of reference to Warren County is not fatal. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

4. Medicaid Fraud.

Trial judge did not have authority to transfer prosecutions of doctor and dentist for medicaid fraud from the county in which the offenses were completed by virtue of submission of fraudulent claims to state to the counties of defendants’ residence in which offenses were initiated. Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

In suit for medicaid fraud, venue was in either Franklin County or in the county wherein the defendant had his medical or dental practice. Therefore it was proper for the Commonwealth to have sought and obtained the indictments in Franklin County. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

5. Unlawful Transaction with a Minor.

Where alcohol was provided to certain minors in Hardin County, after which the minors and their companions went to Louisville and then were in Bullitt County at the time of an accident in which the minors were killed and which gave rise to criminal charges against their companions, the ensuing indictment count charging unlawful transaction with a minor was properly brought in Bullitt County. Commonwealth v. Self, 802 S.W.2d 940, 1990 Ky. App. LEXIS 95 (Ky. Ct. App. 1990).

Cited:

Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ).

Opinions of Attorney General.

Where a couple was divorced in one county and the husband was ordered to pay child support, the county to which the wife and children moved had venue to issue a warrant under KRS 405.030 (now repealed). OAG 63-843 .

The venue for a prosecution under KRS 436.107 (repealed) reposes in either the county of origin or the county of receipt of the call. OAG 67-268 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

452.560. Injury in one county, death in another.

Where an injury is inflicted or poison is administered in one county and death ensues in another, the trial for the homicide may be in either county.

History. 1147: reen. Acts 1962, ch. 234, § 40.

Compiler’s Notes.

This section was formerly compiled as KRS 431.050 .

NOTES TO DECISIONS

1. Constitutionality.

This section does not violate the provision of Const., § 11 requiring a speedy public trial by a jury of the vicinage for where the crime begins in one county and is finished in another the vicinage is in either county. Commonwealth v. Jones, 118 Ky. 889 , 82 S.W. 643, 26 Ky. L. Rptr. 867 , 1904 Ky. LEXIS 126 ( Ky. 1904 ).

2. Jurisdiction.

A defendant may not act to have himself arrested and bound over to give jurisdiction to a county of his preference in fraud of the right of prosecuting officers acting in good faith to have jurisdiction rest in another county in the interest of a fair trial. McDaniel v. Sams, 259 Ky. 56 , 82 S.W.2d 215, 1935 Ky. LEXIS 280 ( Ky. 1935 ). See Hargis v. Parker, 85 S.W. 704, 27 Ky. L. Rptr. 441 (1905).

3. Arrest in One County.

Where the wound was inflicted in one county and death occurred in another and the defendant was arrested and indicted by the county in which the wound was inflicted that court obtained exclusive jurisdiction. Commonwealth v. Jones, 118 Ky. 889 , 82 S.W. 643, 26 Ky. L. Rptr. 867 , 1904 Ky. LEXIS 126 ( Ky. 1904 ).

Where original jurisdiction under this section is in either of two (2) counties, jurisdiction will be fixed in the county in which offender is in good faith first arrested. Spencer v. Commonwealth, 194 Ky. 699 , 240 S.W. 750, 1922 Ky. LEXIS 241 ( Ky. 1922 ). See Clemons v. Stoll, 197 Ky. 208 , 246 S.W. 810, 1923 Ky. LEXIS 621 ( Ky. 1923 ); Commonwealth v. Wolfford, 253 Ky. 593 , 69 S.W.2d 1012, 1934 Ky. LEXIS 696 ( Ky. 1934 ).

Where original jurisdiction under this section is in each of two (2) counties, the county first delivering warrants to the sheriff whose deputy made the arrest has exclusive jurisdiction to prosecute the offender for murder though warrant charges malicious shooting and wounding with intent to kill. Spradlin v. Commonwealth, 221 Ky. 372 , 298 S.W. 952, 1927 Ky. LEXIS 722 ( Ky. 1927 ). See Clemons v. Stoll, 197 Ky. 208 , 246 S.W. 810, 1923 Ky. LEXIS 621 ( Ky. 1923 ).

Where deceased was shot in one county and died in another, offender being indicted in both counties, the county in which he was first arrested has jurisdiction although first indicted in the other county. Commonwealth v. Wolfford, 253 Ky. 593 , 69 S.W.2d 1012, 1934 Ky. LEXIS 696 ( Ky. 1934 ).

Where defendant was arrested by county in which the crime occurred immediately after the shooting and was then released on bond, that county had acquired jurisdiction despite the fact that death later occurred in another county which was the first to issue a warrant after the death of the victim. Commonwealth v. Ward, 308 Ky. 666 , 215 S.W.2d 565, 1948 Ky. LEXIS 1016 ( Ky. 1948 ).

4. Indictment.

When an indictment, viewed as a whole, shows clearly that defendant was charged with shooting the deceased in one county and that he died in another county it is sufficient to apprise the defendant of the offense charged and to describe the acts constituting the offense. Burkhart v. Commonwealth, 295 Ky. 559 , 175 S.W.2d 1, 1943 Ky. LEXIS 296 ( Ky. 1943 ).

Where the victim was shot in Clay County and died in Laurel County the Laurel County indictment was not demurrable because it first stated that the shooting occurred in Laurel County and later stated that it occurred in Clay County where the indictment as a whole showed that the defendant was charged with shooting the victim in Clay County and that the victim later died in Laurel County. Burkhart v. Commonwealth, 295 Ky. 559 , 175 S.W.2d 1, 1943 Ky. LEXIS 296 ( Ky. 1943 ).

Cited:

Hargis v. Parker, 85 S.W. 704, 27 Ky. L. Rptr. 441 (1905); Smith v. Southern R. Co., 136 Ky. 162 , 123 S.W. 678, 1909 Ky. LEXIS 465 ( Ky. 1909 ); Commonwealth v. Ward, 185 Ky. 295 , 215 S.W. 31, 1919 Ky. LEXIS 288 ( Ky. 1919 ); Martin v. Commonwealth, 269 Ky. 688 , 108 S.W.2d 665, 1937 Ky. LEXIS 658 ( Ky. 1937 ); Marcum v. Bradley, 385 S.W.2d 165, 1964 Ky. LEXIS 131 ( Ky. 1964 ).

Research References and Practice Aids

Cross-References.

Criminal homicide, Penal Code, KRS 507.010 to 507.050 .

452.570. Accessory in one county, offense committed in another.

Where a person in one county aids, abets or procures the commission of an offense in another county he may be tried for the offense in either county.

History. Enact. Acts 1962, ch. 234, § 50.

NOTES TO DECISIONS

1. Conspiracy.

Where conspiracy to commit felony in one county was formed in another county, prosecution for conspiracy could be maintained in either county. Faison v. Commonwealth, 405 S.W.2d 943, 1966 Ky. LEXIS 275 ( Ky. 1966 ).

Research References and Practice Aids

Cross-References.

Liability for conduct of another, Penal Code, KRS 502.020 .

452.580. Property unlawfully obtained in one county, brought through another.

Where a person obtains property by larceny, robbery, false pretenses or embezzlement in one county and brings the property so obtained into or through any other county, he may be tried in the county in which he obtains the property or in any other county into or through which he brings it.

History. Enact. Acts 1962, ch. 234, § 51.

NOTES TO DECISIONS

1. Evidence.

Where the evidence was uncontradicted that the grand larceny was committed in Adair County, the proper venue for prosecution was in Adair County. Jones v. Commonwealth, 453 S.W.2d 564, 1970 Ky. LEXIS 318 ( Ky. 1970 ).

Where the evidence showed that the stolen property was brought into Warren County by the defendant, Warren County was a proper venue for the prosecution and the defendant’s motion for a directed verdict on the ground that the offenses were not committed in Warren County was properly overruled. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

2. Instructions.

If the prosecution made a submissible case concerning defendant’s guilt, an instruction that the jury must believe that the defendant had committed the offense in Adair County, when that was the proper venue, was not defective. Jones v. Commonwealth, 453 S.W.2d 564, 1970 Ky. LEXIS 318 ( Ky. 1970 ).

Cited:

Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

452.590. Property transported into state.

Where the offense consists of transporting any property into the Commonwealth, the venue of the prosecution is in the county into or through which the property has been transported.

History. Enact. Acts 1962, ch. 234, § 52.

452.600. Kidnapping, seizing or confining person.

Where the offense consists of kidnapping, seizing or confining a person without lawful authority, the prosecution may be in any county in which the person is seized or confined or through or into which he has been carried or brought.

History. Enact. Acts 1962, ch. 234, § 53.

NOTES TO DECISIONS

1. Venue.

Defendant’s trial was not held in an improper venue because a reasonable jury could infer defendant intended to kill the victim in the county in which trial was held. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

Research References and Practice Aids

Cross-References.

Kidnapping and related offenses, Penal Code, KRS 509.010 to 509.080 .

452.610. Publishing libelous matter in newspaper.

Prosecutions against persons publishing a newspaper for any libelous matter contained therein may be in the county where the same is printed and issued, or in the county where the party complaining resides.

History. Enact. Acts 1962, ch. 234, § 54.

452.620. Doubt as to where offense committed.

When there is a reasonable doubt as to whether the offense was committed in the county in which an indictment has been returned or in some other county, the venue of the prosecution is in the county in which the indictment was returned.

History. 1146: reen. Acts 1962, ch. 234, § 34.

Compiler’s Notes.

This section was formerly compiled as KRS 431.020 .

NOTES TO DECISIONS

1. Application.

This section is applicable to prosecution of crimes originating in one county and consummated in another such as confederating for the purpose of kidnapping, with the party kidnapped in one county and transported into another county, it being a continuous offense. Keith v. Commonwealth, 195 Ky. 635 , 243 S.W. 293, 1922 Ky. LEXIS 381 ( Ky. 1922 ).

2. Venue.

It is necessary in every prosecution for crime that the venue be proved and that the jury find the offense to have been committed in the county as charged in the indictment. Lunce v. Commonwealth, 289 Ky. 706 , 160 S.W.2d 3, 1942 Ky. LEXIS 622 ( Ky. 1942 ).

3. — County of First Jurisdiction.

Where the evidence indicates that there is a doubt as to where a crime was committed, the county court which first acquires jurisdiction will have a right to try the defendant and submit the question of venue to the jury. Sebree v. Commonwealth, 200 Ky. 534 , 255 S.W. 142, 1923 Ky. LEXIS 143 ( Ky. 1923 ). See Caruth v. Commonwealth, 251 Ky. 143 , 64 S.W.2d 495, 1933 Ky. LEXIS 828 ( Ky. 1933 ); Lacey v. Commonwealth, 251 Ky. 419 , 65 S.W.2d 61, 1933 Ky. LEXIS 873 ( Ky. 1933 ); House v. Commonwealth, 251 Ky. 834 , 65 S.W.2d 997, 1933 Ky. LEXIS 947 (Ky. 1933).

4. — County of Indictment.

The county court in which the indictment was brought properly retained jurisdiction despite the fact that there was a dispute as to where the crime was committed. Napier v. Commonwealth, 215 Ky. 847 , 287 S.W. 21, 1926 Ky. LEXIS 815 ( Ky. 1926 ).

If there is a reasonable doubt as to whether a felony has been committed in the county in which an indictment has been returned or in some other county, the venue of the prosecution is in the county in which the indictment was returned. Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

5. — Evidence.

Where all the evidence showed that the place of the offense was in one county, indictment in another county was improper and court of that county was without jurisdiction. Blair v. Commonwealth, 207 Ky. 631 , 269 S.W. 741, 1925 Ky. LEXIS 152 ( Ky. 1925 ). See Reed v. Commonwealth, 270 Ky. 447 , 109 S.W.2d 1198, 1937 Ky. LEXIS 98 ( Ky. 1937 ).

Where the evidence fails to establish venue of the crime in the Commonwealth, court must instruct to find defendant not guilty. Short v. Commonwealth, 243 Ky. 175 , 47 S.W.2d 1074, 1932 Ky. LEXIS 80 ( Ky. 1932 ).

Slight evidence will be sufficient to sustain the venue, and slight circumstances, from which the jury might infer the place where the crime was committed, are held to be sufficient. Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

There can be no “reasonable doubt” as to whether a crime took place in one county or another unless there is some evidence to support a finding either way. Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

Where there was no evidence whatever that the defendant did anything in Jefferson County unless it was inferable from his subsequent actions elsewhere that he took part in the larceny itself, there was no basis in the evidence for an instruction on receiving stolen property in Jefferson County. Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

6. — Libel.

An offensive letter mailed in one county and received, circulated, and exhibited in another county gives the courts of both counties jurisdiction of the offense, and an indictment first returned in county in which letter was received and circulated gave its court jurisdiction. Commonwealth v. Morton, 140 Ky. 628 , 131 S.W. 506, 1910 Ky. LEXIS 340 ( Ky. 1910 ).

7. — Sale of Mortgaged Property.

This section is not applicable where the offense charged is the fraudulent selling of mortgaged personal property. Commonwealth v. Johnson, 249 Ky. 200 , 60 S.W.2d 590, 1933 Ky. LEXIS 503 ( Ky. 1933 ).

8. — Jury Question.

Where witness in a prosecution for rape entered the car of the defendants in one county, but was unable to definitely state in which county the crime was committed, and where defendants testified that the crime took place in another county, although they admitted they really didn’t know where they were, the question of venue was properly submitted to the jury. Hendron v. Commonwealth, 487 S.W.2d 275, 1972 Ky. LEXIS 61 ( Ky. 1972 ).

Although it was never conclusively established whether mausoleum where body was found was located in the Oldham or Jefferson County portion of the cemetery, the jury was presented enough evidence that it could have decided that Jefferson County was the proper venue for defendant’s homicide prosecution. Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

Cited:

Commonwealth v. Ward, 185 Ky. 295 , 215 S.W. 31, 1919 Ky. LEXIS 288 ( Ky. 1919 ); Fulks v. Commonwealth, 204 Ky. 449 , 264 S.W. 1046, 1924 Ky. LEXIS 467 (1924); Commonwealth v. Duvall, 220 Ky. 771 , 295 S.W. 1047, 1927 Ky. LEXIS 628 ( Ky. 1927 ); Logan v. Commonwealth, 319 S.W.2d 465, 1958 Ky. LEXIS 170 ( Ky. 1958 ); Chancellor v. Commonwealth, 438 S.W.2d 783, 1969 Ky. LEXIS 418 ( Ky. 1969 ).

452.630. Prosecution where process for arrest first issued.

Where the venue of a prosecution is in two (2) or more counties, the prosecution shall proceed in the county in which the process for the arrest of the defendant is first issued, unless an indictment for the offense is pending in another county.

History. Enact. Acts 1962, ch. 234, § 55.

NOTES TO DECISIONS

1. First Process County.

Where man was shot in Jackson County and died in another and the accused surrendered himself to the Jackson County jailer and was served with a warrant but was not indicted by the next succeeding grand jury, the grand jury of the county in which the victim died had jurisdiction to bring in an indictment charging the accused with murder, for the first process county had exclusive venue only so long as a prosecution was pursued in due course in that county and when the prosecution in that county ceased, the right of exclusive venue ceased. Marcum v. Bradley, 385 S.W.2d 165, 1964 Ky. LEXIS 131 ( Ky. 1964 ).

This section places venue in the county in which a warrant is first issued for the same offense. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

2. Venue selected by Commonwealth.

This section obviously gives the Commonwealth, whose duty and responsibility it is to bring alleged offenders to trial, the option of picking the county, where there is multicounty venue, in which to prosecute the offender; the defendant then has no legal right to complain, unless he cannot obtain a fair trial in the county the prosecution has chosen for trial. Therefore, the requests for change of venue made by the defendants in medicaid fraud cases were improper and the trial court had no authority to act except to deny same. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

3. Receiving Stolen Property.

In prosecution for receiving stolen property, venue was proper in the county where the defendant received the property, even though a prior warrant in another county charged the defendant with receiving stolen property from the same persons, where there was no allegation or proof that the same property was involved. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

4. Guilty Plea.

The defendant’s guilty plea waived his right to appeal the issue of venue, where he was informed by the court that the plea was not one which preserved such an alleged error, and the defendant indicated to the court that he understood this and still wanted to proceed with his guilty plea. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

452.650. Waiver of venue.

The venue of the prosecution may be waived by the defendant and the failure to make a timely motion to transfer the prosecution to the proper county shall be deemed a waiver of the venue of the prosecution.

History. Enact. Acts 1962, ch. 234, § 56.

NOTES TO DECISIONS

1. Failure to Make Timely Motion.

Defendant waived his contention that the proper venue of his prosecution was not proven by his failure to raise such question at any time in the trial court. Taylor v. Commonwealth, 384 S.W.2d 333, 1964 Ky. LEXIS 100 ( Ky. 1964 ).

Defendant’s failure to raise by a timely motion prior to the trial, his contention that the Meade Circuit Court did not have venue of his prosecution for conspiracy to commit a felony, constituted a waiver of the objection. Faison v. Commonwealth, 405 S.W.2d 943, 1966 Ky. LEXIS 275 ( Ky. 1966 ).

Motion for a change of venue made on the day of commencement of the trial was untimely where there was nothing in the record to show that publicity concerning a bank robbery was such as to deny a fair trial. Hall v. Commonwealth, 557 S.W.2d 420, 1977 Ky. LEXIS 583 ( Ky. 1977 ).

Where defendant failed to make timely motion to transfer prosecution to another county, this would be deemed a waiver under this section; however, where instructions required jury to find that offense occurred in county of prosecution, the Commonwealth could not contend that jury was not bound by instructions. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

Defendant pursuant to KRS 452.650 and RCr 8.26 waived any issue of venue of the criminal charges in the first county by failing to timely make a motion, before trial, that venue should be in the second county because defendant’s offenses allegedly occurred in the second county. Thus, venue of defendant’s case could have been in the first county because venue was not jurisdictional, and defendant could not complain regarding defendant’s conviction in the second county, as the trial of defendant’s criminal case in the first county ended upon defendant’s own mistrial motion and without a decision on defendant’s guilt. Derry v. Commonwealth, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

2. Prosecution in Wrong County.

The prosecution of a charge in the Circuit Court of the wrong county is not jurisdictional defect but one of venue, which can be waived. Chancellor v. Commonwealth, 438 S.W.2d 783, 1969 Ky. LEXIS 418 ( Ky. 1969 ).

Cited:

Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, Jackson v. Kentucky, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (1985).

District Courts

452.700. Applicability of chapter to actions in District Court — Exception.

The provisions of this chapter shall apply to venue and change of venue in civil, criminal, and penal actions in District Courts, except that, for change of venue, an action shall be transferred to a District Court of another county and not to a Circuit Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 464, effective January 2, 1978.

CHAPTER 453 Costs

453.010. Commonwealth not liable for costs; exception in civil actions.

No judgment for costs shall be rendered against the Commonwealth in any action prosecuted by or against the Commonwealth in its own right, unless specifically provided by statute; provided, however, that in any civil action filed in any court of competent jurisdiction by or against the Commonwealth of Kentucky, the costs may be paid by the Commonwealth when such costs are approved and allowed by the judge of the court in which the case was filed. Costs shall not exceed the fees allowed for similar services in other civil actions.

History. 885: amend. Acts 1962, ch. 176; repealed, 1982, ch. 213, § 4, effective July 15, 1982; reen. and amend. 1982, ch. 393, § 53, effective July 15, 1982.

Legislative Research Commission Note.

Although this section was repealed in 1982 Acts Chapter 213, Section 4, it was specifically reenacted and amended in 1982 Acts Chapter 393, Section 53. Pursuant to KRS 446.100 , the reenactment prevails.

NOTES TO DECISIONS

1. Constitutionality.

Ky. Const., § 242 renders invalid that portion of this section which permits a judge to award court costs against state even where no taking has occurred. Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

2. Cost Against State.

Where there is no taking, no costs should be awarded against the Commonwealth and to the extent that this statute conflicts with Const., § 242 it is invalid. Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

Because most dependency petitions are submitted by and the action pursued by the Cabinet for Human Resources (now Cabinet for Health and Family Services), the Cabinet is in fact the “plaintiff,” and dependency actions are an exception to the general prohibition of this section. Cabinet for Human Resources v. Howard, 705 S.W.2d 935, 1985 Ky. App. LEXIS 711 (Ky. Ct. App. 1985).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

Court of appeals properly reversed the trial court’s order assessing against the Energy and Environment Cabinet the amount owed the court-appointed receiver because the fees and expenses incurred by the receiver were not properly characterized as costs; nothing in Ky. R. Civ. P. 54.04 (or in caselaw addressing the rule) would allow the expenses of a receivership to be deemed costs assessable against the Commonwealth pursuant to Ky. Rev. Stat. Ann. § 453.010 . Baughman v. Commonwealth, 572 S.W.3d 473, 2019 Ky. LEXIS 145 ( Ky. 2019 ).

3. Costs of Other Party.

The state cannot be taxed with plaintiff’s costs in a suit successfully prosecuted against it. James v. Walker, 148 Ky. 73 , 146 S.W. 21, 1912 Ky. LEXIS 390 ( Ky. 1912 ).

Neither Const., § 230, nor KRS 41.130 , 421.020 (repealed) nor the statutes indicating the steps for procuring attendance of witnesses upon change of venue give any authority for the Commonwealth to pay costs of defendant in criminal prosecution whether incurred by way of expenses in procuring attendance of his witnesses, or otherwise. Greene v. Ballard, 174 Ky. 808 , 192 S.W. 841, 1917 Ky. LEXIS 246 ( Ky. 1917 ).

Circuit Court could not impose costs for witness fees and court reporter fees unless Commonwealth agreed to pay such costs under this section, since, under CR 54.04, costs can only be imposed against the Commonwealth to the extent provided by law. Department of Revenue v. D & W Auto Supply, Inc., 614 S.W.2d 542, 1981 Ky. App. LEXIS 235 (Ky. Ct. App. 1981), overruled, Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

Where Circuit Court imposed costs against Commonwealth for witness fees and court reporter’s fees, such judgment is improper since under this section only those costs which the Commonwealth agrees to pay, out of those approved and allowed by the trial judge, may be paid. Department of Revenue v. D & W Auto Supply, Inc., 614 S.W.2d 542, 1981 Ky. App. LEXIS 235 (Ky. Ct. App. 1981), overruled, Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

Award of costs pursuant to this section against Department of Education was improper in suit by quadriplegic against the Department and a foreign corporation for breach of warranties of contract between the Department and the corporation for modification of quadriplegic’s van. Commonwealth Dep't of Education v. Gravitt, 673 S.W.2d 428, 1984 Ky. App. LEXIS 476 (Ky. Ct. App. 1984).

4. Costs Against Other Parties.

Landowner successfully appealing from findings of board of supervisors as to value of land may not recover his costs against the board or the state in the absence of bad faith, but the costs incurred by the board and the state should not be assessed against him. Brown v. Wayne County Board of Supervisors, 204 Ky. 550 , 264 S.W. 1073, 1924 Ky. LEXIS 492 ( Ky. 1924 ).

5. Tax Sales.

Neither a county nor the Commonwealth may be required to pay court costs in connection with suits to recover possession of land sold for state and county taxes. Commonwealth v. Allen, 235 Ky. 728 , 32 S.W.2d 42, 1930 Ky. LEXIS 447 ( Ky. 1930 ).

6. Fees in Parental Rights Proceedings.

This section does not override or directly conflict with the $300 fee limit established in subsection (8) of KRS 199.603 (now repealed) for representing indigent parents in parental rights termination proceedings, since this section, would limit the award to $300, which is the fee in similar actions. Department for Human Resources v. Paulson, 622 S.W.2d 508, 1981 Ky. App. LEXIS 293 (Ky. Ct. App. 1981).

7. Transportation Costs in Parental Rights Proceedings.

The trial court has the inherent power to assess, as costs, the amount needed to provide parents with transportation to hearing, the outcome of which will determine their right to ever again see or communicate with their child. Although costs are usually awarded to a successful party in a lawsuit, it is well settled that a trial court is imbued with the discretion to assess costs as it deems appropriate. G.G.L. v. Cabinet for Human Resources, 686 S.W.2d 826, 1985 Ky. App. LEXIS 488 (Ky. Ct. App. 1985).

8. Appeal of Tax Assessment.

Where the trial court did not award attorney fees to be paid by the Commonwealth in addition to the refunds to landowners appealing tax assessment through a class action suit pursuant to KRS 412.070 , the fees were ordered to be prorated and paid out of the refunds or credits obtained. Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ).

9. Attorney’s Fees.

KRS 453.010 did not authorize a trial court to award attorney’s fees against the Cabinet for Health and Family Services (Cabinet) because (1) the fees were not “costs,” and (2) the Cabinet did not consent to such an award. Bell v. Commonwealth, 423 S.W.3d 742, 2014 Ky. LEXIS 86 ( Ky. 2014 ).

Cited:

Commonwealth v. Coleman, 699 S.W.2d 755, 1985 Ky. App. LEXIS 680 (Ky. Ct. App. 1985).

Opinions of Attorney General.

Court costs may not be taxed against the department of highways. OAG 60-592 .

The Commonwealth is not liable for court costs when appellant applicants for public assistance are successful in reversing the appeal board of the division of public assistance (now Cabinet for Health and Family Services). OAG 61-613 .

A sheriff cannot collect a fee for the service of a subpoena to appear before the grand jury because no one is liable for such a cost in a grand jury proceeding. OAG 65-842 .

The county board of drainage commissioners is not mandatorily required to pay court costs of any kind in suits against landowners to enforce delinquent drainage assessment liens, suit tax or advance costs deposit, since the board is merely a political subdivision or an arm of the state. OAG 68-475 .

In a criminal case if the defendant is acquitted, he cannot get a refund of the jury costs, since the Commonwealth cannot be assessed the costs in a criminal action. OAG 70-100 .

Since delinquent tax collection suits are filed in the name of the Commonwealth, the filing fees and state tax are not required to be paid by the Commonwealth at the time of filing. OAG 70-590 .

When a bond is judicially forfeited, the Commonwealth is not charged with such costs and the primary responsibility for such costs is upon the losing party pursuant to KRS 453.020 , and liability of the surety for such fees and costs is dependent on the surety’s contracted liability. OAG 73-161 .

Under this section and in view of the strictures imposed by KRS 41.110 and Ky. Const., § 230, the payment of costs cannot be mandatorily enforced against the state, although the state may make a decision as to payment or nonpayment of costs based upon the factual and equitable considerations surrounding the litigation. OAG 73-430 .

The responsibility for payment to the sheriff’s office for summoning and obtaining witnesses in misdemeanor cases arising out of an indictment or information in the Circuit Court under KRS 64.340 , falls on the defendant if he is convicted but if he is not convicted or if he proceeds in forma pauperis, the state would not be liable for the cost so the sheriff could not collect such fee. OAG 73-631 .

In an appeal from a police court to a Circuit Court in which the prosecuting attorney had the sheriff serve two subpoenas, the fee for service cannot be charged to the Commonwealth or the city but if the defendant is convicted, the fee can be collected from him. OAG 73-636 .

The suit tax in original criminal actions in the Circuit Court should be included in the costs at the termination of the suit and must be paid by the defendant, if convicted, unless the court has allowed him to proceed in forma pauperis and, to be collectible, the judgment in the case must specifically provide for the costs, including the tax, but if the defendant is not convicted then the tax is not collectible and the clerks have no responsibility nor authority to collect it. OAG 73-755 , 73-803, 73-814.

The University of Louisville, as a state agency, cannot be required to pay advance court costs under KRS 64.030 (repealed), state taxes under KRS 142.011 (repealed), or advance sheriff’s fees under KRS 64.080 when filing a civil law suit as plaintiff in the Circuit Court. OAG 76-370 .

In view of the fact that under this section the Circuit Court is not required to mandate the paying of costs by the Commonwealth, the Department of Labor (now Labor Cabinet) should not pay the advance filing fee when appealing Workers’ Compensation Board opinions. OAG 77-775 .

Neither the legislation enacted in 1976 nor that enacted in 1978 has amended or changed the statutory provisions set forth in this section. OAG 78-343 .

The Commonwealth, except for the provisions of KRS 416.620 , pertaining to proceedings for eminent domain, is exempt from paying costs, although it may, pursuant to this section, pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. OAG 78-343 .

The Commonwealth is not liable for costs except where there is an express statute making the state liable therefor. OAG 82-96 .

Where the urban county government is the losing party in a civil action, there is no statute exempting that government from paying the costs. OAG 83-186 .

The immunity from costs, except where a statute requires the county to pay, applies to counties as well as to the state. OAG 83-311 .

Research References and Practice Aids

Cross-References.

Commonwealth may prosecute remedy without bond, KRS 454.190 .

453.020. Criminal prosecution, costs — Collection.

  1. The defendant in a criminal action shall be adjudged to pay the cost of all continuances in his behalf. The cost of such continuances shall be collected by process as in civil cases.
  2. If the defendant is convicted of a misdemeanor, all costs unpaid may be collected in the same manner as a fine, and if he is convicted of a felony, all costs unpaid shall be collected by process as in civil cases.

History. 886.

NOTES TO DECISIONS

1. In General.

Action in equity will lie to subject property of defendant convicted of misdemeanor to payment of fine and costs, but where defendant fails to pay arresting fee, properly taxed as costs, county must do so. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

2. Felony Convictions.

A convicted murderer, pardoned by the governor, may have execution issued against him by the clerk to recover the costs of prosecution. Frazier v. Toliver, 204 Ky. 79 , 263 S.W. 713, 1924 Ky. LEXIS 411 ( Ky. 1924 ).

3. In Forma Pauperis Proceedings.

Defendant is liable for court costs upon conviction and county may, if able, recover court costs of appeal from him even though he is permitted to appeal in forma pauperis. Livingston County v. Crossland, 229 Ky. 733 , 17 S.W.2d 1018, 1929 Ky. LEXIS 836 ( Ky. 1929 ).

4. Judgment for Costs.

Costs, including arresting fee, must be properly taxed to become part of judgment against convicted defendant and such judgment for costs must be rendered by the court in which he was tried. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

5. Arresting Fee.

By acquiescing in clerk’s failure to tax arresting fees as costs arresting officer waives right to collect same, either from defendants or county. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

Opinions of Attorney General.

A magistrate or constable cannot properly charge a collection fee which is in excess of the charges permitted for the simple writing of a warrant. OAG 65-403 .

Under this section it is necessary for the county clerk to issue an execution for costs taxed against a defendant upon conviction of a felony. OAG 65-535 .

The defendant must pay the cost for subpoenaing jurors in either quarterly or county court if he is convicted unless he proceeds in forma pauperis. OAG 65-732 .

A sheriff cannot collect a fee for the service of a subpoena to appear before the grand jury because no one is liable for such a cost in a grand jury proceeding. OAG 65-842 .

Fines can be probated but not costs. OAG 66-225 .

The complaining witness who swears out a warrant in a misdemeanor case is not responsible for paying the sheriff’s arresting fee. OAG 70-553 .

The sheriff’s arresting fee in a misdemeanor case is charged to the plaintiff Commonwealth but only to the extent that it can be collected from a convicted defendant. OAG 70-553 .

Where a convicted felon has been probated under KRS 439.260 (now repealed), he is nevertheless legally charged with paying all costs that accrued in the prosecution and trial. OAG 72-8 .

When a bond is judicially forfeited, the commonwealth is not charged with such costs, pursuant to KRS 453.010 , and the primary responsibility for such costs is upon the losing party and, the surety is liable for such fees and costs depending on his contracted liability. OAG 73-161 .

If the defendant is convicted of a misdemeanor, all costs unpaid, including the tax on suits under KRS 142.011 (repealed), may be collected in the same manner as a fine which would include a capias issued by the court to compel the defendant to serve it out in jail and a writ of execution and, if the defendant is convicted of a felony, all costs shall be collected by a writ of execution unless the defendant is found by the sheriff to be execution proof or if the defendant has deposited money as bail under RCr 4.22 such money, or so much thereof as may be necessary, shall be applied to payment of such fine and costs. OAG 73-755 , 73-782, 73-803, 73-814.

In considering whether a defendant is liable for any costs in a criminal action, regardless of other sections dealing with specific costs, this section provides he is responsible for no costs unless he is convicted. If defendant orders a transcript and is not convicted then no one pays since KRS 28.440 (repealed) contemplates the defendant’s paying only if convicted, otherwise if the county had to pay the fee for a pauper it could never recover against defendant since an acquitted defendant is not responsible for costs. OAG 73-811 .

Although the payment of a fine may be suspended or probated when a person is found guilty, costs are not part of the penalty and the convicted defendant must pay the costs in order that the officers involved will get their pay for services rendered. OAG 74-75 .

A fourth-class city police court has authority to assess multiple costs against defendant convicted of multiple offenses as costs are taxed based upon each action, regardless of the joinder upon the statutory authorizations for costs accruing in each action or case. OAG 74-246 .

Where a defendant is found guilty in a police court in a fifth-class city upon a verdict or a plea of guilty, he must, pursuant to this section, pay the statutory court costs incurred, unless he is proceeding in a forma pauperis situation pursuant to KRS 453.190 , regardless of whether he is fined or jailed or both or whether he is probated or placed under a peace bond since court costs are not part of the penalty imposed and a police court judge may not, pursuant to KRS 439.550 , waive them. OAG 74-567 .

The $2 fee charged by the sheriff for the collection of bail in either a misdemeanor or felony action must be collected from the defendant, if convicted, providing he is not proceeding as a pauper, and becomes a part of the judgment against the convicted defendant which, if unpaid, shall be collected by process as in civil cases. OAG 74-911 .

The costs in a criminal case in Circuit Court or quarterly court for a bond required to be taken or prepared or recorded by the clerk or the court are to be computed at the termination of the suit and are collectible only if the defendant is convicted and not proceeding in forma pauperis and, while a record should be made at the time such services are performed the costs for such services are not collectible if the defendant is not subsequently convicted. OAG 75-24 .

Since the imposition of court costs against criminal defendant is conditioned upon his conviction and upon his not proceeding in forma pauperis, a police court judge may not assess costs when the case or charge is filed away with leave to reopen. OAG 75-378 .

Statutory fees earned by local officials in court actions must be taxed as costs and included in the judgment. OAG 78-249 .

The party securing a warrant and failing to appear at trial is not liable for court costs. OAG 80-142 .

Since there is nothing in the schedule suggesting that the fee for summoning a witness relates to civil cases only, the fee for serving a subpoena in criminal cases is $2 (now $10) under KRS 64.090 ; if the defendant is convicted, he is responsible for paying such cost unless he is permitted by the court to proceed in forma pauperis under KRS 453.190 and, if he is not convicted, then under KRS 64.340 and this section the fee cannot be collected. OAG 83-311 .

Research References and Practice Aids

Cross-References.

Fines, collection, KRS 431.100 .

Kentucky Bench & Bar.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

453.030. Misdemeanor cases before county judge/executive. [Repealed.]

Compiler’s Notes.

This section (1732a-1: amend. Acts 1962, ch. 285, § 1; 1966, ch. 228, § 2; 1974, ch. 74, Art. II, § 9(2)), was repealed by Acts 1978, ch. 384, § 584, effective June 17, 1978.

453.040. Responsibility for payment.

  1. Except as provided by subsection (2):
    1. The successful party in any action shall recover his costs, unless otherwise provided by law. If the plaintiff succeeds against part of the defendants, and not against others, he shall recover his costs from the former, and the latter shall recover their costs from the plaintiff.
    2. Successful defendants who are necessary nominal parties shall not recover their costs, but each party shall be decreed to pay his own costs. Successful defendants who are not necessary parties shall recover their costs.
  2. In actions between parceners, tenants in common or joint tenants, and in actions for settling the distribution and division of deceased persons’ estates, to settle partnerships and to settle or enforce trusts, the court shall exercise a judicial discretion in regard to costs.

History. 889: amend. Acts 1982, ch. 118, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1. In General.

Trial court properly rejected an auto buyer’s assertion that he could recover the costs for extra copies of deposition transcripts and other copying expenses under KRS 190.310 because that statute provided for a broader class of cost recoveries than CR 54.04(2). KRS 190.310 ’ s award of “the costs of the action” was not broader in scope than the award of costs under the procedural rule or under KRS 453.040(1)(a). Wilson v. Lawhorn Ford Sales, Inc., 2006 Ky. App. LEXIS 172 (Ky. Ct. App. June 9, 2006).

2. Jurisdiction

Trial court did not retain jurisdiction to award costs or attorney’s fees under KRS 61.990(4) on an employee’s motion for costs and attorney’s fees when the motion was filed more than 30 days after entry of the final judgment. Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009).

3. Nominal Parties.

Defendant in an action to contest an election, who was not a candidate but only a nominal party and who refused to accept the certificate or to qualify, should not be required to pay costs. Edwards v. Loy, 113 Ky. 746 , 68 S.W. 1091, 24 Ky. L. Rptr. 545 , 1902 Ky. LEXIS 102 ( Ky. 1902 ).

4. Multiple Parties.

Party jointly interested in court action who is represented by his own counsel may not be required to pay as costs attorney’s fees of counsel employed by other parties. Collins v. Hudson's Adm'x, 282 Ky. 810 , 140 S.W.2d 365, 1939 Ky. LEXIS 47 ( Ky. 1939 ).

Where some of parties to an action have prosecuted the action for the benefit of others and where the suit is brought for their common benefit and one (1) attorney carries the entire burden the attorney’s fees and expenses may be recovered as costs. Collins v. Hudson's Adm'x, 282 Ky. 810 , 140 S.W.2d 365, 1939 Ky. LEXIS 47 ( Ky. 1939 ).

5. Successful Party.

A party entitled to a judgment is also entitled to costs. Harrodsburg Water Co. v. Harrodsburg, 89 S.W. 729, 28 Ky. L. Rptr. 625 (1905).

Contestants to an application for grant of a ferry franchise, who claimed to own the ferry, were entitled to costs as successful parties, where application was dismissed. Willis v. Calhoun, 145 Ky. 95 , 140 S.W. 199, 1911 Ky. LEXIS 831 ( Ky. 1911 ).

A plaintiff who succeeded in obtaining a judgment against the defendant requiring the defendant to detach a fence which had been joined to the plaintiff’s fence was entitled to recover costs of the action. Burchett v. Leslie, 186 Ky. 361 , 216 S.W. 850, 1919 Ky. LEXIS 223 ( Ky. 1919 ).

A defendant produce exchange, which had sold a tenant’s crop with the right to deduct the tenant’s debt from the proceeds of the sale and refused to tender the balance of the money when sued by the landlord claiming a lien, was properly charged with the costs of the action. Martin v. St. Matthews Produce Exchange, 265 Ky. 26 , 95 S.W.2d 1119, 1936 Ky. LEXIS 445 ( Ky. 1936 ).

The successful party in a suit to recover for an unpaid account is entitled to his costs. Jones v. Hall, 300 Ky. 212 , 187 S.W.2d 825, 1945 Ky. LEXIS 816 ( Ky. 1945 ).

Successful litigant in proceedings by an individual to obtain a certificate of convenience and necessity for operation as a common carrier who had paid part of the cost of the transcript for use by department in deciding whether to issue the certificate, is entitled to recover the cost of such transcript as costs from the loser. Jones v. Meigs, 383 S.W.2d 324, 1964 Ky. LEXIS 20 ( Ky. 1964 ).

A plaintiff in a negligence action who succeeds in obtaining a liability verdict against a defendant but is not awarded damages has not “prevailed” for the purposes of awarding costs. Lewis v. Grange Mut. Cas. Co., 11 S.W.3d 591, 2000 Ky. App. LEXIS 5 (Ky. Ct. App. 2000).

5.5. — Judgment reduced to zero by operation of law.

Plaintiff was properly awarded costs under KRS 453.040(1)(a) as plaintiff was awarded damages for medical expenses and lost wages, even though the verdict was reduced to zero under KRS 304.39-060 (2)(a). Schulze v. Hinton, 2011 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 28, 2011).

6. — Partial Judgment for Each Party.

Where the jury in an action for assault and battery returned a verdict that neither defendant nor plaintiff was entitled to any damage and that each party pay his costs, the court should have entered judgment dismissing plaintiff’s petition with costs, though defendant presented no motion for new trial. Lykins v. Hamrick, 144 Ky. 80 , 137 S.W. 852, 1911 Ky. LEXIS 562 ( Ky. 1911 ).

Where plaintiff sought to subject bank deposit standing in name of debtor’s wife to payment of plaintiff’s judgment, and was successful in reaching a large part of the deposit, he was entitled to costs. Darby v. Van Meter, 155 Ky. 462 , 159 S.W. 940, 1913 Ky. LEXIS 260 ( Ky. 1913 ).

Where plaintiff recovered judgment in part and some items of counterclaim were allowed plaintiff was entitled to recover his costs. Cheatham v. Harmon, 182 Ky. 35 , 206 S.W. 16, 1918 Ky. LEXIS 311 ( Ky. 1918 ).

Where court, on dismissing plaintiff’s petition and defendant’s counterclaim in automobile negligence case, directed that each party pay his own costs, which were small, judgment was affirmed by Court of Appeals subject to power of lower court to modify judgment so as to provide for payment of costs by plaintiff. Foley's Adm'r v. Witt, 294 Ky. 498 , 172 S.W.2d 81, 1943 Ky. LEXIS 485 ( Ky. 1943 ).

7. — Primary Liability.

This section does not mean that the party succeeding in an ordinary action on the merits or otherwise is not liable to the officers of the court for costs incurred by himself, and for them he is directly liable to the clerk; although under his judgment for costs he may collect them from his opponent. Moser v. Summers, 172 Ky. 553 , 189 S.W. 715, 1916 Ky. LEXIS 239 ( Ky. 1916 ).

8. — Supersedeas Bond.

Judgment on supersedeas bond should not include costs of action when original judgment is later reversed. Phillips v. Green, 288 Ky. 202 , 155 S.W.2d 841, 1941 Ky. LEXIS 73 ( Ky. 1941 ).

9. — Land Cases.

In suit for damages and to restrain defendant from further removing timber on lands allegedly belonging to plaintiff, plaintiff having failed to show title in himself, defendant was properly awarded costs. Le Moyne v. Anderson, 123 Ky. 584 , 96 S.W. 843, 29 Ky. L. Rptr. 1017 , 1906 Ky. LEXIS 182 ( Ky. 1906 ).

In action in equity for the recovery of land, judgment for defendant for an infinitesimal quantity of land would not present any equitable ground for relieving him of payment of costs. Shanahan v. McIntire, 169 Ky. 160 , 183 S.W. 529, 1916 Ky. LEXIS 675 ( Ky. 1916 ).

Where in action to quiet title to two (2) tracts of land, plaintiffs recovered judgment as to both tracts in Circuit Court, but on appeal judgment was reversed as to one (1) of the tracts and pursuant to decision of appeal judgment was entered in the Circuit Court dismissing that part of the petition which related to the other tract and adjudging that defendants “recover their costs herein expended.” The plaintiffs, having succeeded as to one (1) tract, were entitled to their costs incurred in the Circuit Court, but defendants were entitled to their costs expended in securing a reversal. Casebolt v. Hall, 177 Ky. 394 , 197 S.W. 839, 1917 Ky. LEXIS 598 ( Ky. 1917 ).

10. — Divorce Actions.

A wife, who was unsuccessful in seeking to obtain custody of child from its paternal grandparents by motion in divorce action, could not require them to pay cost of transcript of evidence taken in her behalf. Ragland v. Ragland, 299 Ky. 699 , 187 S.W.2d 257, 1945 Ky. LEXIS 782 ( Ky. 1945 ).

Where major issue in action did not involve question of how much money or property divorced wife should receive by reason of separation and divorce, but question concerned disposition of property after deaths of parties, divorced wife was entitled to costs, but not attorney fees. Poor v. Logan, 252 S.W.2d 1, 1952 Ky. LEXIS 956 ( Ky. 1952 ).

11. — Election Contest.

Successful contestant in primary election contest is entitled to costs of taking his depositions. Hatcher v. Petry, 261 Ky. 52 , 86 S.W.2d 1043, 1935 Ky. LEXIS 587 ( Ky. 1935 ).

12. — Appointment of Receiver.

Where the appointment of a receiver pendente lite for a corporation was voided on appeal the corporation was entitled to recover the expenses of the receivership as costs, with the exception of attorneys’ fees. Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129, 1963 Ky. LEXIS 69 ( Ky. 1963 ).

When a receiver was appointed to manage waste water treatment facilities, it was error to impose the receiver's costs exceeding revenue on the Energy and Environment Cabinet (Cabinet) because, inter alia, Ky. Rev. Stat. Ann. § 453.040(1)(a) barred imposing costs on a successful party such as the Cabinet. Commonwealth v. Bowling, 2018 Ky. App. LEXIS 69 (Ky. Ct. App. Feb. 2, 2018), aff'd, 572 S.W.3d 473, 2019 Ky. LEXIS 145 ( Ky. 2019 ).

13. Equitable Actions.

Where creditor brought equitable action against judgment debtor and a trustee to subject the trust property in which the debtor had a contingent interest to the payment of the judgment, and he was refused any relief against the property, it was proper to allow costs to both the debtor and the trustee. People's Trust Co. v. Deweese, 143 Ky. 730 , 137 S.W. 201, 1911 Ky. LEXIS 473 ( Ky. 1911 ).

While it is the general rule that the successful party in an equitable action recovers costs, a court of equity has a judicial discretion in settlements as to costs and its discretion will not be controlled by the Court of Appeals unless the chancellor has abused his discretion. Johnson v. Johnson, 273 S.W.2d 558, 1954 Ky. LEXIS 1177 ( Ky. 1954 ).

On appeal, decision of Circuit Court in matters of costs will not be controlled unless chancellor has abused his discretion. Barth v. Citizens Fidelity Bank & Trust Co., 368 S.W.2d 339, 1963 Ky. LEXIS 49 ( Ky. 1963 ).

14. — Liens.

Unless a court of equity abuses its discretion in the settlement of costs, that discretion will not be disturbed on appeal. But where plaintiff, in action to enforce lien on land, was entitled to enforcement of lien, subject to defendant’s right of dower, court erred in assessing three fourths of cost against plaintiff. Maryland Casualty Co. v. Lewis, 276 Ky. 263 , 124 S.W.2d 48, 1939 Ky. LEXIS 509 ( Ky. 1939 ).

Where plaintiff sought to establish attachment lien and also to set aside conveyance as fraudulent, and succeeded only in establishing lien, court properly required defendants to pay the costs. First Nat'l Bank v. Williamson, 277 Ky. 369 , 126 S.W.2d 826, 1939 Ky. LEXIS 666 ( Ky. 1939 ).

15. — Accounting.

In suit for accounting in which plaintiff recovered part of sum sued for, it was proper to require each party to pay his own cost and one half of the commissioner’s fee, where the accounts involved many items over a long period of years and required an expert to unravel them, and both parties were responsible for that condition. Poetter v. Poetter, 277 Ky. 662 , 126 S.W.2d 1119, 1939 Ky. LEXIS 709 ( Ky. 1939 ).

16. — Land Contracts.

Matter of costs in equitable proceeding involving land contract is in discretion of chancellor. Haas v. Fidelity & Columbia Trust Co., 281 Ky. 671 , 136 S.W.2d 1088, 1940 Ky. LEXIS 92 ( Ky. 1940 ).

Where plaintiff, in action to cancel land contract and for other relief, was successful, and defendant succeeded in establishing an equitable lien under counterclaim based on alleged mechanic’s lien, it was proper to award each party costs based on the costs of determining the issues in which he was successful. Haas v. Fidelity & Columbia Trust Co., 281 Ky. 671 , 136 S.W.2d 1088, 1940 Ky. LEXIS 92 ( Ky. 1940 ).

17. — Partition.

It is error to require defendants who have resisted a partition to pay any part of plaintiffs’ attorney fees. Lang v. Constance, 46 S.W. 693, 20 Ky. L. Rptr. 502 (1898).

Where there is a contest over the right or advisability of partition, attorneys should be paid by the parties they represent. Lang v. Constance, 46 S.W. 693, 20 Ky. L. Rptr. 502 (1898).

Where certain joint owners of realty, suing for partition, obtained judgment before title papers were filed, which did not include all the property, and the other owners had the judgment set aside and procured another free from error, the owners instituting the suit were not entitled to have the fee of their attorney paid out of the proceeds. Hemingray v. Hemingray, 96 S.W. 574, 29 Ky. L. Rptr. 879 (1906).

Where, in partition, the commissioners reported that they had made fair and equal division of the land, costs were correctly apportioned equally between the parties. Mead v. Mead, 101 S.W. 330, 31 Ky. L. Rptr. 70 (1907).

18. Decedents’ Estates.

The costs of a life tenant, incurred in a litigation over her interest, must be paid out of the income of the estate and not out of the body thereof. Bates v. Rider, 44 S.W. 666, 19 Ky. L. Rptr. 1768 (1898).

Where Court of Appeals dismissed petition by administrator of insured deceased for death indemnity and disability benefit but insurance company admitted liability for disability benefit, plaintiff was entitled to recover tendered costs incurred in both trial and appeal. Mullins v. National Casualty Co., 273 Ky. 686 , 117 S.W.2d 928, 1938 Ky. LEXIS 706 ( Ky. 1938 ).

Where some of defendants, in action by one (1) heir to determine rights in estate, to compel sale of realty and distribution of proceeds, and for appointment of receiver to manage and sell property, contested action and objected to sale, took position that administrator with will annexed had sufficient authority to handle matter, and employed counsel of their own selection to represent them, court erred in allowing plaintiff’s attorney a fee to be taxed as costs and payable out of the estate. Bettes v. Rogers, 281 Ky. 118 , 135 S.W.2d 74, 1939 Ky. LEXIS 25 ( Ky. 1939 ).

Where a suit against an execution for settlement and recovery of personal property was filed after the major portion of the assets were distributed and the suit was fruitless and appeared wholly unnecessary the plaintiffs were properly denied their claim for expenses incurred in prosecuting the action. Johnson v. Ducobu, 258 S.W.2d 509, 1953 Ky. LEXIS 855 ( Ky. 1953 ).

Where no benefit is shown either to the estate or beneficiaries, no allowance of costs, attorney fees or expenses should be made unless there appears some good reason for filing the suit. Johnson v. Ducobu, 258 S.W.2d 509, 1953 Ky. LEXIS 855 ( Ky. 1953 ).

19. — Construction of Wills.

In action for construction of a will in which it was sought to set aside several bequests, including a residuary bequest, where the residuary bequest was sustained and certain others set aside, it was error to charge residuary legatees with payment of costs and attorney fees of the plaintiff. Trustees of Home for Poor Catholic Men v. Coleman, 122 Ky. 544 , 92 S.W. 342, 29 Ky. L. Rptr. 75 , 1906 Ky. LEXIS 75 ( Ky. 1906 ).

Where, in action to construe will, heirs of person named as devisee were made parties and asserted claim to property, court properly taxed costs against them upon deciding adversely to their claim. Woods v. Hughes, 290 Ky. 99 , 160 S.W.2d 339, 1942 Ky. LEXIS 348 ( Ky. 1942 ).

In action for construction of will, where construction was necessary in order to make settlement of the estate, costs were ordered to be paid by the executor. Jennings v. Jennings, 299 Ky. 779 , 187 S.W.2d 459, 1945 Ky. LEXIS 774 ( Ky. 1945 ).

Where, in a contest to construe a will, all costs were assessed against the trust corpus resulting in requiring all costs to be paid by the estate, the costs were revised so that the specific legatee who was an unsuccessful party would bear one half (1/2) of the costs. Barth v. Citizens Fidelity Bank & Trust Co., 368 S.W.2d 339, 1963 Ky. LEXIS 49 ( Ky. 1963 ).

20. — Claims Against.

An estate may recover costs incurred in successfully defending claims to portions of such estate. Owsley v. Gilbert, 262 Ky. 798 , 91 S.W.2d 513, 1936 Ky. LEXIS 102 ( Ky. 1936 ).

Where an heir resisted the claim of the administrator’s son-in-law and daughter against the estate, and the administrator who was also an heir was joined in formal defense of the action by court order, but the administrator who was willing to pay the claim offered no affirmative defense, testified in favor of the claimants and did not join in the heir’s unsuccessful appeal from a judgment in favor of the claimants, the heir was not entitled to charge the estate for her costs, fees or expenses, since the heir resisted the claim for her own benefit and in her own interest. Barrick v. James, 258 S.W.2d 1, 1953 Ky. LEXIS 817 ( Ky. 1953 ).

21. — Settlement.

In an action to surcharge an administrator’s settlement, defendants other than the administrator, who sought to recover nothing and made no costs, and against whom no recovery was sought, should not be taxed or pay any costs. Evans' Adm'r v. McVey, 172 Ky. 1 , 188 S.W. 1075, 1916 Ky. LEXIS 158 ( Ky. 1 916).

In an action to surcharge an administrator’s settlement, the plaintiffs were allowed costs only as to the credits on which they were successful but were not allowed costs on the items on which they were unsuccessful. Evans' Adm'r v. McVey, 172 Ky. 1 , 188 S.W. 1075, 1916 Ky. LEXIS 158 ( Ky. 1 916).

In action by an administrator against heirs and creditors for settlement of an estate, which was really a contest between a creditor and heirs, and creditor was successful, court properly taxed costs against heirs, except those costs necessarily incurred in action for settlement of estate. Howell v. Howell, 189 Ky. 556 , 225 S.W. 477 ( Ky. 1920 ).

Attorneys for part of heirs suing to settle estate were entitled to reasonable attorney fees out of estate. Smith v. Graham, 274 Ky. 144 , 118 S.W.2d 194, 1938 Ky. LEXIS 238 ( Ky. 1938 ).

22. — Compensation of Personal Representative.

A court sitting in equity determines and allows the personal representative of an estate reasonable compensation and necessary expenses, fees, and costs, without the intervention of a jury, except in an advisory role at the option of the chancellor. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

23. Trusts.

Where executors of deceased trustee, who had died without accounting, also failed to make settlement of their testator’s account as trustee, and suit was brought by substituted trustees to compel executors to account, in which the trustees were successful, the executors were properly chargeable with costs. Boreing v. Faris, 127 Ky. 67 , 104 S.W. 1022, 31 Ky. L. Rptr. 1265 , 1907 Ky. LEXIS 116 ( Ky. 1907 ).

Trustee, who received no compensation, was entitled to costs and attorney’s fees out of trust funds where he acted on behalf of cestui que trust in action to settle trust. Chiles v. Robinson, 224 Ky. 71 , 5 S.W.2d 269, 1928 Ky. LEXIS 522 ( Ky. 1928 ).

Unless it is abused the Court of Appeals will not interfere with the lower court’s discretion in apportioning costs in the settlement of trust estates. Chiles v. Robinson, 224 Ky. 71 , 5 S.W.2d 269, 1928 Ky. LEXIS 522 ( Ky. 1928 ).

Chancellor is allowed broad discretion in allotting costs in settlement of trust estates. Ohio Valley Banking & Trust Co. v. King, 238 Ky. 712 , 38 S.W.2d 663, 1931 Ky. LEXIS 294 ( Ky. 1931 ).

24. Partnership Settlement.

Provision of this section that in suits to settle partnerships, courts shall have judicial discretion in regard to costs, has no application to extraordinary costs in suit which, though nominally to settle a partnership, has for its principal object the assertion of personal demands by plaintiff against defendant. Wathen v. Russell, 47 S.W. 437, 20 Ky. L. Rptr. 709 (1898).

In action by one partner for accounting and settlement of partnership affairs, where plaintiff was awarded substantial sum, and substantial portion of costs was due to difficulty of commissioner in making accounting because of method in which records were kept, it was proper to require plaintiff to pay one third (1/3) of costs. Waterbury v. Waterbury, 281 Ky. 107 , 134 S.W.2d 1009, 1939 Ky. LEXIS 21 ( Ky. 1939 ).

In a suit to settle joint accounts, growing out of joint transactions or adventures, it is proper for the court to divide the costs. Waterbury v. Waterbury, 281 Ky. 107 , 134 S.W.2d 1009, 1939 Ky. LEXIS 21 ( Ky. 1939 ).

In action for accounting and settlement of partnership, costs accruing after defendant paid into court an amount admitted to be due plaintiff should be divided equally between parties instead of adjudging all of it against surviving partner where neither of the parties was responsible for dispute, and it was not possible for either party to know where he or she stood without the suit. Collins v. Hudson's Adm'x, 282 Ky. 810 , 140 S.W.2d 365, 1939 Ky. LEXIS 47 ( Ky. 1939 ).

In suit for accounting and to settle partnership deceased partner’s administratrix was not entitled to recover attorney’s fees and costs against surviving partner who was represented by his own counsel. Collins v. Hudson's Adm'x, 282 Ky. 810 , 140 S.W.2d 365, 1939 Ky. LEXIS 47 ( Ky. 1939 ).

In suit to settle partnership which was necessary for settlement, neither party being responsible for the suit, costs should be divided between the parties. Collins v. Hudson's Adm'x, 282 Ky. 810 , 140 S.W.2d 365, 1939 Ky. LEXIS 47 ( Ky. 1939 ).

Where plaintiff sued for half of partnership profits rather than for a settlement of accounts the court properly assessed costs against the defendant where the defendant was found to be indebted to the plaintiff for the amount for which plaintiff had sued. Wilhoite v. Kemper, 300 Ky. 637 , 189 S.W.2d 961, 1945 Ky. LEXIS 617 ( Ky. 1945 ).

25. Laches.

A trial court, when asked to set aside a proper submission, or to allow parties to plead further, or to take additional proof, may require parties making the motion to pay the costs, though they are finally successful, additional costs being incurred by their laches. Blake v. Durrell, 103 Ky. 600 , 45 S.W. 883, 20 Ky. L. Rptr. 270 , 1898 Ky. LEXIS 102 ( Ky. 1898 ).

26. Discretion of Court.

Where the court determined that the magistrates had failed to carry out their statutory duty, and the record was void of any reason for their refusal to act, and where good faith by the magistrates was certainly questionable due to their refusal to follow the advice of the county attorney, and because of their publication of a newspaper ad designed to create a public controversy with the health tax increase the trial judge did not abuse his discretion in requiring the magistrates to pay the court costs in an action to set a specific health tax rate. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

27. Jury Finding on Costs.

The matter of costs is a question of law and the jury’s finding thereon is surplusage. Lykins v. Hamrick, 144 Ky. 80 , 137 S.W. 852, 1911 Ky. LEXIS 562 ( Ky. 1911 ).

The court, not the jury, is to determine who shall pay the costs. Statement in verdict as to who shall pay costs is surplusage. Foley's Adm'r v. Witt, 294 Ky. 498 , 172 S.W.2d 81, 1943 Ky. LEXIS 485 ( Ky. 1943 ).

28. Expert Witness Fees.

The trial court erred in permitting the plaintiffs in a personal injury action to recover physician’s witness fees as costs in the action, since fees paid by a party to expert witnesses are not recoverable as part of the cost of the action unless specifically authorized by statute, and neither this section nor the derivative civil rule, CR 54.04, purports to authorize the recovery of expert witness fees. Brookshire v. Lavigne, 713 S.W.2d 481, 1986 Ky. App. LEXIS 1152 (Ky. Ct. App. 1986).

29. Costs.

The award of costs to the prevailing party at the conclusion of the action is governed by this section and CR 54.04 and not KRS 453.190 . Cummins v. Cox, 763 S.W.2d 135, 1988 Ky. App. LEXIS 177 (Ky. Ct. App. 1988).

Award of costs against co-executors was not an abuse of discretion given the lengthy nature of the litigation. Strunk v. Lawson, 447 S.W.3d 641, 2013 Ky. App. LEXIS 111 (Ky. Ct. App. 2013).

In an action arising out of the death of an inmate, the trial court erred in awarding to the medical service provider and the nurse, as prevailing parties, an allowance to the nurse and two expert defense witnesses because the amount and nature of the expenses incurred by each witness were not properly presented to and considered by the trial court. Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 2013 Ky. App. LEXIS 157 (Ky. Ct. App. 2013).

In an action arising out of the death of an inmate, the trial court did not err in awarding to the medical service provider and the nurse, as prevailing parties, costs for the videotaped depositions of three defense witnesses because they sought and were awarded only the costs of the DVD’s of the depositions and did not seek reimbursement for the costs associated with a court reporter or the written transcriptions. Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 2013 Ky. App. LEXIS 157 (Ky. Ct. App. 2013).

30. Attorney’s Fees.

Chancellor is vested with a broad discretion as to allowance of attorney fees under this section. Goodwin's Ex'r v. Goodwin, 301 Ky. 526 , 192 S.W.2d 493, 1946 Ky. LEXIS 521 ( Ky. 1946 ).

As a general rule, in the absence of a statute or contract expressly providing therefor, attorney’s fees are not allowable as costs or recoverable as an item of damages. Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129, 1963 Ky. LEXIS 69 ( Ky. 1963 ).

When a condominium owner who sued a condominium association was awarded attorneys’ fees pursuant to a master deed, CR 54.04, and KRS 453.040 , the award had to be remanded because the owner’s fiduciary breach claim should have been dismissed, so the owner’s prevailing party status had to be reevaluated. Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 2013 Ky. LEXIS 579 ( Ky. 2013 ).

31. Procedure.

In an action by a condominium owner against a condominium association, attorney’s fees could not be awarded pursuant to KRS 453.040 and CR 54.04 until an itemized bill for services along with a suggested fee should be filed in the record and an evidentiary hearing convened. 1400 Willow Council of Co-Owners, Inc. v. Ballard, 2010 Ky. App. Unpub. LEXIS 1007 (Ky. Ct. App. May 21, 2010), aff'd in part and rev'd in part, 430 S.W.3d 229, 2013 Ky. LEXIS 579 ( Ky. 2013 ).

Cited:

Ward v. Ward, 213 Ky. 606 , 281 S.W. 801, 1926 Ky. LEXIS 577 ( Ky. 1926 ); Sauerman Bros. v. Roberts, 266 Ky. 815 , 100 S.W.2d 225, 1936 Ky. LEXIS 747 (1936); Farber’s Ex’r v. Farber, 285 Ky. 596 , 148 S.W.2d 732, 1940 Ky. LEXIS 609 ( Ky. 1940 ); Allen v. Chesapeake & O. R. Co., 304 Ky. 846 , 202 S.W.2d 157, 1947 Ky. LEXIS 698 ( Ky. 1947 ); Croley v. Adkins, 305 Ky. 765 , 205 S.W.2d 332, 1947 Ky. LEXIS 895 ( Ky. 1947 ); Nick’s Auto Sales, Inc. v. Radcliff Auto Sales, Inc., 591 S.W.2d 709, 1979 Ky. App. LEXIS 496 (Ky. Ct. App. 1979).

Opinions of Attorney General.

Where the plaintiff recovered damages and an award of costs but the defendant was insolvent, the plaintiff would be liable to the clerk for his own costs accrued in the action. OAG 65-134 .

Where a county judge deliberately fails to notify the county attorney of trials and refuses communication with the county attorney, a writ of mandamus will lie. OAG 67-325 .

The clerk can collect court costs from the successful litigant in the event he is unable to collect from the unsuccessful party. OAG 68-133 .

Although judgment directs plaintiffs to recover all costs expended, depositions taken by plaintiffs on discovery but not used at trial should not be allowed against defendants since basic test should be whether depositions were necessary and served a useful purpose and this section provides no specific statutory treatment of this kind of cost. OAG 73-478 .

Where a person is found incompetent, costs and fees should be paid out of the incompetent’s estate, if assets are available, in accordance with this section, but if he is found to be competent such fees and costs should be paid by the petitioner in accordance with the basic policy expressed in this section. OAG 75-277 .

Where a civil case was heard in a court not of continuous session and in which no verdict was returned by the jury, under CR 54.04, KRS 453.040 , 453.050 and 28.120 (repealed) all provide for payment of fees by the unsuccessful party at the termination of an action but where there is no determination as to who the unsuccessful party is, the Circuit Court clerk cannot at this time collect costs incurred in this particular action. OAG 75-600 .

453.050. Cost bill of successful party — Attorney’s fee.

Clerks shall tax one (1) attorney’s fee only in the bill of costs of the successful party at the termination of the action, but no attorney’s fee shall be taxed in any court if the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars ($50), and no garnishee shall be allowed an attorney’s fee. The bill of costs of the successful party shall include, in addition to other costs taxed, the tax on law process and official seals, all fees of officers with which the party is chargeable in the case, postage on depositions, the cost of copy of any pleading or exhibit obtained, the cost of any copies made exhibits and the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses to any one (1) point.

History. 904, 905, 1742, 1743.

NOTES TO DECISIONS

1. Taxing Costs.

The expression “taxed as cost” means the final fixing by items of the sums due by and collectible from each litigant, and this taxation cannot be made until a final determination of the suit. Louisville R. Co. v. Dugan, 179 Ky. 825 , 201 S.W. 324, 1918 Ky. LEXIS 291 ( Ky. 1918 ).

By acquiescing in clerk’s failure to tax arresting fees as costs arresting officer waived right to collect them from defendants or county. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

Only the court in which a convicted defendant was tried may render judgment for costs against him. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

Unless they are properly taxed, costs, including the fee for the arresting officer, do not become part of the judgment against a convicted defendant. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

In an action arising out of the death of an inmate, the trial court erred in awarding to the medical service provider and the nurse, as prevailing parties, an allowance to the nurse and two expert defense witnesses because the amount and nature of the expenses incurred by each witness were not properly presented to and considered by the trial court. Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 2013 Ky. App. LEXIS 157 (Ky. Ct. App. 2013).

2. — Filing Fees.

When a brief is filed which is the party’s brief both on original and cross appeal, the service of filing it should only be taxed once. Marion County v. Spaulding, 143 Ky. 289 , 136 S.W. 235, 1911 Ky. LEXIS 389 ( Ky. 1911 ).

3. — Transcripts.

Where a judgment was recovered against a city and a property owner for injuries sustained and the property owner’s wife paid the judgment, took an assignment thereof, and afterwards sued the city to recover the amount so paid and where in second suit a transcript of record in previous case, was filed and made a part of city’s answer and was considered as evidence by the court but the transcript was not filed with the answer, however, until the wife obtained ruling against city to file it, and no objection was taken to its competency, the fee for the transcript was a proper item to be included in taxing costs against the wife. Blocker v. Owensboro, 129 Ky. 75 , 110 S.W. 369, 33 Ky. L. Rptr. 478 , 1908 Ky. LEXIS 139 ( Ky. 1908 ).

In an action arising out of the death of an inmate, the trial court did not err in awarding to the medical service provider and the nurse, as prevailing parties, costs for the videotaped depositions of three defense witnesses because they sought and were awarded only the costs of the DVD’s of the depositions and did not seek reimbursement for the costs associated with a court reporter or the written transcriptions. Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 2013 Ky. App. LEXIS 157 (Ky. Ct. App. 2013).

4. — Copies of Record.

A clerk of the Court of Appeals may tax a copy of the record as part of costs of successful party where he has used the original record with the understanding under the rules of the office that he would be charged for a copy. Minor v. Christie, 65 S.W. 826, 23 Ky. L. Rptr. 1569 , 1901 Ky. LEXIS 391 (Ky. Ct. App. 1901).

5. — Attorney Fees.

The allowance of separate fees to attorneys employed by assignee was not taxation of more than one (1) fee in the case, where one (1) of a firm of attorneys employed by assignee died and another attorney was substituted in his place, there being, as a matter of law and fact, but one (1) attorney or firm of attorneys employed. Louisville Banking Co. v. Etheridge Mfg. Co., 43 S.W. 169, 19 Ky. L. Rptr. 908 (1897).

Where bond of testamentary trustee was conditioned upon trustee’s faithful performance of his duties and accounting for all moneys belonging to trust estate, surety was not liable for attorney’s fees expended after trustee’s resignation, to recover amounts defaulted by him. United States Fidelity & Guaranty Co. v. Carter, 158 Ky. 737 , 166 S.W. 238, 1914 Ky. LEXIS 708 ( Ky. 1914 ).

6. Payment.

Since, under this section it was duty of clerk of court to furnish plaintiff with a copy of pleading on request, and under KRS 64.430 the clerk’s fees are not due until two (2) months after rendition of service, clerk could not refuse to make copies upon the ground that his fees were not paid. Jeffers v. Taylor, 178 Ky. 392 , 198 S.W. 1160, 1917 Ky. LEXIS 740 ( Ky. 1917 ).

The jury fee is payable by party primarily responsible to Commonwealth for same, and at conclusion of litigation the same shall be taxed by clerk against the unsuccessful party and in favor of successful party. Louisville R. Co. v. Dugan, 179 Ky. 825 , 201 S.W. 324, 1918 Ky. LEXIS 291 ( Ky. 1918 ).

Fiscal court is liable to pay, from county funds, fees for arresting officer properly taxed as costs but unpaid by convicted defendant. Bell County v. Minton, 239 Ky. 840 , 40 S.W.2d 379, 1931 Ky. LEXIS 871 ( Ky. 1931 ).

7. Witness Allowances.

In a case brought under the Kentucky Wages and Hours Act, witness allowances were recoverable court costs; an employer was not seeking reimbursement for witness “fees,” such as expert witness fees and expenses. A remand was necessary for consideration of a per diem allowance for the witnesses who attended trial. Hisle v. CorrectCare-Integrated Health, Inc., 2015 Ky. App. LEXIS 89 (Ky. Ct. App. June 12, 2015), review denied, ordered not published, 2016 Ky. LEXIS 136 (Ky. Mar. 9, 2016).

Opinions of Attorney General.

A sheriff cannot collect a fee for the service of a subpoena to appear before the grand jury because no one is liable for such a cost in a grand jury proceeding. OAG 65-842 .

Where a civil case was heard in a court not of continuous session and in which no verdict was returned by the jury, under CR 54.04, KRS 453.040 , 453.050 and 28.120 (repealed) all provide for payment of fees by the unsuccessful party at the termination of an action but where there is no determination as to who the unsuccessful party is, the Circuit Court clerk cannot at this time collect costs incurred in this particular action. OAG 75-600 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

453.060. Attorney’s fees allowed.

  1. If the successful party is represented by a licensed attorney, the following attorney’s fees shall be allowed:
    1. In the Court of Appeals,  . . . . .  $10.00
    2. In the Circuit Court,  . . . . .   5.00
    3. In all cases in the District Court,  . . . . .   2.50
  2. A guardian ad litem or warning order attorney shall be allowed by the court a reasonable fee for his services, to be paid by the plaintiff and taxed as costs.
  3. The attorney fees allowed by subsection (1)(b) and (c) shall be taxed as costs at the termination of the action and the clerks of the various courts shall at the end of each month pay all sums collected as taxed attorney’s fees during the month to the trustees of the county law library to be used by the trustees pursuant to KRS Chapter 172.

History. 1720, 1742: amend. Acts 1962, ch. 55; 1976, ch. 10, § 1; 1976 (Ex. Sess.), ch. 14, § 468, effective January 2, 1978; 1982, ch. 118, § 2, effective July 15, 1982; 2005, ch. 80, § 1, effective June 20, 2005.

NOTES TO DECISIONS

1. Agreements to Pay Attorney Fees.

An attorney’s fee paid to a creditor, in addition to legal interest, as consideration for forbearance in collection of a judgment, may be recovered as usury paid. Fidelity Trust & Safety-Vault Co. v. Ryan, 109 Ky. 240 , 58 S.W. 610, 22 Ky. L. Rptr. 734 , 1900 Ky. LEXIS 192 ( Ky. 1900 ).

An agreement in a note to pay a reasonable attorney’s fee for collection by suit has been held unenforceable because contrary to policy of law prescribing amount of attorney’s fees which can be taxed against unsuccessful litigant. Fidelity Trust & Safety-Vault Co. v. Ryan, 109 Ky. 240 , 58 S.W. 610, 22 Ky. L. Rptr. 734 , 1900 Ky. LEXIS 192 ( Ky. 1900 ).

A contract, made in a foreign state, which set out attorney’s fees to be paid if notes were required to be collected, was an agreement to pay penalties and will not be enforced in Kentucky as it violates the statute as to the amount of attorney fees which may be taxed against an unsuccessful litigant. Miller Bros. Co. v. Blackburn Coal Co., 212 Ky. 447 , 279 S.W. 618, 1926 Ky. LEXIS 167 ( Ky. 1926 ).

2. Divorce Actions.

A wife was properly allowed attorney’s fees after reversal of an alimony judgment for an excessive award even though the wife obtained a substantial estate by virtue of the alimony award where the wife prior to the divorce had no separate estate and was judged to be without fault in the divorce action. Maynard v. Maynard, 251 S.W.2d 454, 1952 Ky. LEXIS 917 ( Ky. 1952 ).

3. Guardian’s Settlement.

In suit to surcharge settlement by a guardian, plaintiffs are not entitled to any attorney’s fee other than the regular taxed fee fixed by statute. Farris v. Bingham, 164 Ky. 444 , 175 S.W. 649, 1915 Ky. LEXIS 384 ( Ky. 1915 ).

4. Appeals.

An attorney’s fee may be taxed only in favor of the successful party on appeal, and hence no attorney’s fee should be taxed on a cross-appeal, which is mere incident of the appeal, and not a separate proceeding. Marion County v. Spaulding, 143 Ky. 289 , 136 S.W. 235, 1911 Ky. LEXIS 389 ( Ky. 1911 ).

5. Guardians Ad Litem.

Where in friendly action for construction of will, a person appointed guardian ad litem for certain infants and attorney for certain nonresidents prepared demurrers and argued case in Circuit Court and Court of Appeals and it was determined that his clients had no interest and the services performed in both capacities would have been required had he been acting in either capacity alone, an allowance of $500 was excessive and would be reduced to $200 for all services. American Mach. Co. v. Page, 148 Ky. 303 , 146 S.W. 369, 1912 Ky. LEXIS 400 ( Ky. 1912 ).

In fixing a fee for a guardian ad litem, the character of the litigation, the rights in controversy, the nature, duration and extent of the services, the responsibility, industry, diligence, and accomplishment of the guardian, the general methods of evaluating attorneys’ fees, and an allowance for services, if any, in the Court of Appeals should be considered. Black v. Wiedeman, 254 S.W.2d 344, 1952 Ky. LEXIS 1132 ( Ky. 1952 ).

Where a guardian ad litem has appeared before the Court of Appeals in the litigation in question, that court may take into account its own knowledge of the circumstances in reviewing the allowance of a fee for the guardian and it is not bound by the findings of the Circuit Court. Black v. Wiedeman, 254 S.W.2d 344, 1952 Ky. LEXIS 1132 ( Ky. 1952 ).

The Circuit Court improperly awarded a guardian ad litem the sum of $15 under subsection (1) of this section where he expended over 74 hours of labor and $30.15 of his own money in successfully appealing an adoption through the Court of Appeals and Kentucky Supreme Court, since he was entitled under subsection (2) of this section and CR 17.03 to a “reasonable fee” as guardian ad litem. Goldfuss v. Goldfuss, 609 S.W.2d 696, 1980 Ky. App. LEXIS 395 (Ky. Ct. App. 1980).

The Cabinet for Human Resources (now Cabinet for Health and Family), as the most frequent petitioner in involuntary termination actions, is logically included in that class of persons contemplated to be “plaintiffs” by subsection (2) of this section; to interpret this section otherwise would illogically exclude the major portion of the plaintiffs who bring actions under KRS 199.603 (now repealed), a result which defeats the plain meaning of this section. Therefore, the court correctly imposed guardian ad litem fees as costs against the Cabinet in an involuntary termination action under KRS 199.603 (now repealed). Commonwealth v. Coleman, 699 S.W.2d 755, 1985 Ky. App. LEXIS 680 (Ky. Ct. App. 1985).

Both subsection (5) of CR 17.03 and subsection (2) of this section specifically provide for the award to the guardian ad litem of a reasonable fee for his or her services and based upon the record involved and the quality of services rendered, the trial court did not abuse its discretion in assessing a $75 per hour fee rate. Cabinet for Human Resources v. S.R.J., 706 S.W.2d 431, 1986 Ky. App. LEXIS 1072 (Ky. Ct. App. 1986), overruled, Guffey v. Cann, 766 S.W.2d 55, 1989 Ky. LEXIS 4 ( Ky. 1989 ).

Given the limitations of the role of the guardian ad litem and the limitations on the jurisdiction of the Circuit Court to decide negligence actions involving a governmental defendant, any expenses incurred by the guardian ad litem in preparation of future negligence actions against the Cabinet for Human Resources (now Cabinet for Health and Family) are not recoverable under the reasonable fee provisions of CR 17.03 or subsection (2) of this section. Cabinet for Human Resources v. S.R.J., 706 S.W.2d 431, 1986 Ky. App. LEXIS 1072 (Ky. Ct. App. 1986), overruled, Guffey v. Cann, 766 S.W.2d 55, 1989 Ky. LEXIS 4 ( Ky. 1989 ).

The duties of a guardian ad litem appointed in an incompetency proceeding in District Court do not include the bringing of a declaratory judgment lawsuit in Circuit Court on behalf of the ward. Any such action must be brought by a next friend. Sparks v. Boggs, 839 S.W.2d 581, 1992 Ky. App. LEXIS 229 (Ky. Ct. App. 1992).

In a case involving a dispute over property ownership, the trial court did not have the authority to order that a guardian ad litem’s (GAL) reasonable fee be paid from a court-ordered escrow account and, thus, the trial court should have granted an alleged owner’s CR 59.05 motion to alter or amend the ruling ordering such a payment. Under KRS 453.060(2), the GAL was to be paid directly by a plaintiff, which was a company leasing the disputed the property, and CR 67.03 escrow funds were not available for that purpose. Mullins v. Consol of Ky., Inc., 368 S.W.3d 119, 2012 Ky. App. LEXIS 75 (Ky. Ct. App. 2012).

6. Warning Order Fees.

Trial court erred when it declined to allow an attorney a warning order fee in a divorce case and failed to direct the wife to pay the fee because the more specific provisions in KRS 453.060 took precedence over more general language of KRS 453.190(1), and KRS 453.060 (2) clearly mandated that a warning order attorney be granted a reasonable fee. Spees v. Ky. Legal Aid, 274 S.W.3d 447, 2009 Ky. LEXIS 16 ( Ky. 2009 ).

Cited:

Owens v. Clemons, 408 S.W.2d 642, 1966 Ky. LEXIS 131 ( Ky. 1966 ); Nick’s Auto Sales, Inc. v. Radcliff Auto Sales, Inc., 591 S.W.2d 709, 1979 Ky. App. LEXIS 496 (Ky. Ct. App. 1979); Cabinet for Human Resources v. Howard, 705 S.W.2d 935, 1985 Ky. App. LEXIS 711 (Ky. Ct. App. 1985).

Opinions of Attorney General.

Taxable attorneys’ fees should be allowed in common-law cases settled outside of court except where the action is dismissed without prejudice by the plaintiff. OAG 60-811 .

Taxable attorneys’ fees should be allowed in equity cases dismissed and never reduced to judgment except where the action is dismissed without prejudice by the plaintiff. OAG 60-811 .

The attorney fee mentioned in this section would be paid by the party ordered to pay it by the court under KRS 403.220 . OAG 72-482 .

The payment of the attorney’s fee by the clerk to the county law library is mandatory in those counties containing an urban county form of government; but such payment is not authorized for any other counties. In addition, a clerk has no authority to pay over the fee to the county law library, in counties not having an urban county form of government, at the request or direction of the fee attorney, since the powers of a public officer are limited to those conferred expressly by statute or which exist by a necessary and clear implication. OAG 82-544 .

District Court clerks, in counties without an urban county form of government, in applying this section, are simply required to turn over the applicable attorney’s fee to the successful party’s attorney. The district clerks in such counties have no authority to turn the attorney’s fee over to the local county law library even when the winning attorney so directs; in such cases the winning attorney, after receiving his fee from the clerk, if he wishes, may himself turn over the fee to the county law library. OAG 82-544 .

A juvenile court’s orders appointing attorneys as specific juveniles’ guardians ad litem and orders authorizing their payment in specific cases are confidential juvenile court records and as such are excluded from public view, however, a public agency’s records that a specific attorney was paid a sum certain out of public funds for his or her service in a specific court as a guardian ad litem are not; if the agency’s records include the names of the juveniles involved, making release of such information an invasion of the juveniles’ privacy, those names may be removed from the records before allowing access to the records. OAG 90-62 .

Cabinet records of a disbursement to an individual for discharging the duty of guardian ad litem in juvenile court are not juvenile court records as envisioned by KRS 610.340(1) (now KRS 610.340(1)(a)); rather, they are public records of a public expenditure made by a public agency to a person in consideration of a public service which was performed under the auspices of the juvenile court. OAG 90-62 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order for Guardian ad Litem Fees, Form 259.06.

453.070. Cost of continuance in civil action — Dismissal — Amendment.

  1. If a party to a civil action obtains a continuance, or files an amendment that causes a continuance, he shall pay the costs occasioned thereby.
  2. If an action is dismissed for want of jurisdiction, the party in error shall pay the costs.
  3. If a party obtains further time to plead or to amend his pleadings, he shall pay the costs occasioned thereby.

History. 887: amend. Acts 1976 (Ex. Sess.), ch. 14, § 469, effective January 2, 1978.

NOTES TO DECISIONS

1. Dismissal for Want of Jurisdiction.

KRS 21.130 (repealed), authorizing ten percent (10%) damages upon dismissal of an appeal from a judgment which has been superseded, applies on dismissal for want of jurisdiction. American Acc. Co. v. Slaughter, 101 Ky. 269 , 40 S.W. 675, 19 Ky. L. Rptr. 418 , 1897 Ky. LEXIS 178 ( Ky. 1897 ). See Montgomery v. Montgomery, 80 S.W. 1108, 25 Ky. L. Rptr. 2018 ( Ky. 1904 ) and Nelson County v. Bardstown, 123 Ky. 836 , 97 S.W. 765, 30 Ky. L. Rptr. 408 , 1906 Ky. LEXIS 221 ( Ky. 1906 ).

Where the Court of Appeals was without jurisdiction to hear an appeal it also had no jurisdiction to enter a judgment on a supersedeas bond. Montgomery v. Montgomery, 80 S.W. 1108, 25 Ky. L. Rptr. 2018 ( Ky. 1904 ). See American Acc. Co. v. Slaughter, 101 Ky. 269 , 40 S.W. 675, 19 Ky. L. Rptr. 418 , 1897 Ky. LEXIS 178 ( Ky. 1897 ).

Where a board of contests was without jurisdiction of an election contest before it, the Circuit Court on appeal had no authority to enter judgment for costs incurred before said board. Johnson v. Davison, 89 S.W. 518, 28 Ky. L. Rptr. 469 (1905).

This section has no application to damages on appeals to Court of Appeals, and KRS 21.130 (repealed), which provides that ten percent (10%) damages on amount superseded shall be awarded on dismissal of an appeal from judgment for payment of money, applies only to appeals of which the court has jurisdiction, and where appeal is dismissed because court is without jurisdiction, no damages may be allowed. Nelson County v. Bardstown, 123 Ky. 836 , 97 S.W. 765, 30 Ky. L. Rptr. 408 , 1906 Ky. LEXIS 221 ( Ky. 1906 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Form of Judgment for Costs, Form 52.08.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Continuance, § 52.00.

453.080. Motion or rule — No attorney’s fee allowed.

A motion or rule of court shall be considered an action, but when it is made in a pending suit or action, no attorney’s fee shall be recovered as part of the costs of the motion or rule.

History. 898.

NOTES TO DECISIONS

1. Application.

The language of this section precluded its applicability to an action which had been reduced to final judgment and the time for appeal had expired. Cunningham v. Cunningham, 497 S.W.2d 941, 1973 Ky. LEXIS 379 ( Ky. 1973 ).

2. Motions Not Contributing Actions.

Where a motion for attorney’s fees was made by an executor and his attorneys in the presence of defendant’s counsel in a suit for settlement of an estate such a motion did not constitute the filing of an action. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

3. Fees for Executor and Counsel.

This section has no application to a motion for the allowance of fees for the executor and his counsel. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

Cited:

Willis v. Calhoun, 145 Ky. 95 , 140 S.W. 199, 1911 Ky. LEXIS 831 ( Ky. 1911 ).

453.090. Removal of action — Tribunal giving final judgment to award costs.

When, by any procedure, an action is taken from one tribunal to another, and the latter gives final judgment, and proceeds to execute it without remanding the cause to the inferior tribunal, the tribunal rendering the final decision shall adjudge costs according to the provisions of this chapter, and issue execution therefor.

History. 897.

453.100. New trial on payment of costs — Effect of nonpayment.

The party to whom a new trial is granted upon payment of costs shall, within forty (40) days thereafter, pay the costs of the former trial. If he fails to pay the costs within that time, the court may, upon motion made by the adverse party within ten (10) days after the expiration of the forty (40) day period, set aside the order granting a new trial and enter judgment on the verdict already rendered.

History. 899: amend. Acts 1976 (Ex. Sess.), ch. 14, § 470, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Granting New Trial, Form 57.12.

453.110. Injunction, costs on dissolution of.

If an injunction is dissolved, the plaintiff shall pay the costs occasioned by it, unless the court otherwise orders.

History. 894.

453.120. Actions for alimony and divorce. [Repealed.]

Compiler’s Notes.

This section (900) was repealed by Acts 1972, ch. 182, § 29. For present law see KRS 403.220 .

453.130. Suit to remove officer.

Any person who takes steps in any court to remove any officer from office, and fails in so doing, shall pay the officer his costs expended in the defense of the procedure. If the officer is removed, the person instituting and carrying on the procedure shall be adjudged his costs against the officer.

History. 896.

453.140. Fiduciaries, liability for costs.

A personal representative, guardian, assignee, curator, conservator or trustee in an action shall, if unsuccessful, be adjudged to pay costs as other litigants, but the judgment for costs in such cases shall only be against the assets that have, or may, come into the hands of the fiduciary.

History. 892: amend. Acts 1982, ch. 141, § 132, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 144 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1. Effect on Competency of Fiduciary.

Despite this section, where a guardian sued on behalf of his infant ward to recover under a contract, for the ward’s benefit, between the guardian and the intestate, the guardian was competent to testify as to the contract. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 204 , 80 S.W. 803, 26 Ky. L. Rptr. 63 , 1904 Ky. LEXIS 29 ( Ky. 1904 ), overruled in part, Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ).

2. Cost Award Proper.

Award of costs against co-executors was not an abuse of discretion given the lengthy nature of the litigation. Strunk v. Lawson, 447 S.W.3d 641, 2013 Ky. App. LEXIS 111 (Ky. Ct. App. 2013).

453.150. Next friend or relator, when to pay or recover costs.

A next friend or relator on a bond shall, upon failure in the action, be adjudged to pay the defendant his costs. If the plaintiff succeeds, the next friend or relator shall be adjudged his costs against the defendant.

History. 893.

NOTES TO DECISIONS

1. Exceptions.

Insolvent next friend of a poor infant may be allowed to sue without giving security for costs. McElrath v. Barnett, 274 Ky. 771 , 120 S.W.2d 216, 1938 Ky. LEXIS 327 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Next friend, liability for costs in action for person under disability, KRS 387.300 .

453.160. Tender of amount in controversy before appeal, effect on costs.

If a party, before an appeal is taken, tenders to the adverse party the amount he is willing to pay and the tender is refused and, upon appeal by the party to whom the tender was made the amount recovered does not exceed the amount tendered, the appellant shall pay the costs in the court trying the appeal; but if the amount recovered upon the appeal is for more than the amount tendered, the appellant shall recover his costs.

History. 890.

NOTES TO DECISIONS

1. Improper Dismissal After Tender.

Where insurer in action for death and disability admitted liability and made tender, which was refused, and lower court erroneously dismissed petition, plaintiff was entitled to his costs in trial court and upon appeal, except for those incurred between the date of tender and date of judgment. Mullins v. National Casualty Co., 273 Ky. 686 , 117 S.W.2d 928, 1938 Ky. LEXIS 706 ( Ky. 1938 ).

2. Absence of Tender.

Under former rule making costs on appeal discretionary, where appellant succeeds in the recovery against him, a Circuit Court, on appeal from a justice’s judgment, did not abuse its discretion in refusing to allow defendant’s costs, though recovery was reduced, appellant having made no tender. Boggs v. Turner, 145 Ky. 833 , 141 S.W. 420, 1911 Ky. LEXIS 957 ( Ky. 1911 ). (See now CR 72.13.).

Research References and Practice Aids

Cross-References.

Costs on appeal, CR 72.13, 76.42.

453.170. Court of Appeals or Supreme Court — Costs on reversal of judgment by.

On a reversal of a judgment in the Court of Appeals or Supreme Court, the appellant shall recover of the appellee such costs as the Court of Appeals or Supreme Court, in its discretion, awards.

History. 891: amend. Acts 1976 (Ex. Sess.), ch. 14, § 471.

Compiler’s Notes.

The effective date for this section as amended by Acts 1976 (Ex. Sess.), ch. 14, § 471 is set forth in § 491 (1) of ch. 14 as March 19, 1977 and in § 491 (3) as January 2, 1978.

NOTES TO DECISIONS

1. In General.

Ordinarily costs are awarded to the successful party as a matter of course. Irwin v. Irwin, 55 S.W. 199, 21 Ky. L. Rptr. 1366 , 1900 Ky. LEXIS 525 (Ky. Ct. App. 1900).

2. Apportionment Between Parties.

Where an action by sureties of an administrator to set aside a conveyance by him to hinder them in securing indemnity was maintainable and judgment rendered for sureties was correct, but the specific attachment issued by clerk was unauthorized, the court, on appeal by administrator and his grantee, will order that they recover from sureties costs in appellate court relating to the attachment. Samples v. Rogers, 107 S.W. 222, 32 Ky. L. Rptr. 784 (1908).

Where judgment is affirmed in part and reversed in part, each party will be ordered to pay one half (1/2) of the costs of appeal. Beckham v. Slayden, 107 S.W. 324, 32 Ky. L. Rptr. 1348 , 32 Ky. L. Rptr. 944 (1908).

In action by one (1) partner for accounting and settlement of partnership affairs, where plaintiff was awarded substantial sum, and substantial portion of costs was due to difficulty of commissioner in making accounting because of method in which records were kept, it was proper to require plaintiff to pay one third (1/3) of costs. Waterbury v. Waterbury, 281 Ky. 107 , 134 S.W.2d 1009, 1939 Ky. LEXIS 21 ( Ky. 1939 ).

In a suit to settle joint accounts, growing out of joint transactions or adventures, it is proper for the court to divide the costs. Waterbury v. Waterbury, 281 Ky. 107 , 134 S.W.2d 1009, 1939 Ky. LEXIS 21 ( Ky. 1939 ).

3. Apportionment Among Actions.

Where there were thirty (30) appeals in election contest suits depending on same questions of fraud, the court, on reversal, charged to the unsuccessful party in each suit one thirtieth (1/30) of the entire costs of all the suits. Peter v. Wilson, 105 S.W. 980, 32 Ky. L. Rptr. 538 (1907).

4. Unnecessary Costs.

The cost of transcript and copy of record, clearly of unnecessary volume, will be apportioned between the parties. Hoskins' Adm'x v. Morton, 85 S.W. 742, 27 Ky. L. Rptr. 529 (1905).

Research References and Practice Aids

Cross-References.

Appeal, Costs, CR 76.42.

453.180. Costs to be taxed in Court of Appeals or Supreme Court. [Repealed.]

Compiler’s Notes.

This section (117a, 4551-4: amend. Acts 1966, ch. 255, § 281; 1976, ch. 62, § 133) was repealed by Acts 1982, ch. 449, § 17, effective July 15, 1982. For present law see CR 76.42.

453.190. “Poor person” defined — When allowed to sue without paying costs — Application required — Treatment of inmates.

  1. A court shall allow a poor person residing in this state to file or defend any action or appeal therein without paying costs, whereupon he shall have any counsel that the court assigns him and shall have from all officers all needful services and process, including the preparation of necessary transcripts for appeal, without any fees, except such as are included in the costs recovered from the adverse party, and shall not be required to post any bond except in an amount and manner reasonable under the circumstances of his poverty.
  2. A “poor person” means a person who has an income at or below one hundred percent (100%) on the sliding scale of indigency established by the Supreme Court of Kentucky by rule or is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing.
  3. Application to proceed without payment of costs and fees, pursuant to subsection (1) herein, shall be made by motion supported by the affidavit of the applicant stating the reasons that he is unable to pay the costs and fees or give security therefor.
  4. No inmate shall be automatically allowed to proceed through the courts in forma pauperis by virtue of his status as an inmate, nor shall his incarceration lead to a presumption of impoverishment, or constitute evidence of a rebuttable presumption of impoverishment.
  5. A court may consider the value of all of the benefits an inmate receives by virtue of his incarceration and for which the inmate has not monetarily reimbursed the Commonwealth, including, among other things, the value of his room, board, medical care, dental care, recreational programming, educational opportunities offered to the inmate, legal services provided to the inmate without cost, clothing, laundry, guard protection services, or any other benefit similarly conferred upon the inmate.

HISTORY: 884: amend. Acts 1958, ch. 126, § 44; 1976 (Ex. Sess.), ch. 14, § 472, effective January 2, 1978; 1996, ch. 118, § 4, effective July 15, 1996; 2017 ch. 158, § 1, effective June 29, 2017.

NOTES TO DECISIONS

1. In General.

The discretion granted by this statute is not arbitrary and when a petitioner shows that he is indigent within the meaning of this section he must be permitted to prosecute his appeal without payment of costs. Wilson v. Melcroft Coal Co., 226 Ky. 744 , 11 S.W.2d 932, 1928 Ky. LEXIS 171 ( Ky. 1928 ).

A court rendering a judgment may allow a poor person to prosecute or defend an action without paying the costs. Pearson v. Commonwealth, 290 S.W.2d 474, 1956 Ky. LEXIS 320 ( Ky. 1956 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

Complete waiver of filing fees in a case filed by an inmate under KRS 454.410 is governed by the same standard for individuals filing suit in forma pauperis under KRS 453.190 because both of those provisions were created by the same legislative act. Edwards v. Van De Rostyne, 245 S.W.3d 797, 2008 Ky. App. LEXIS 20 (Ky. Ct. App. 2008).

2. Constitutionality.

Any statutory provision requiring an indigent party to be a resident in order to be allowed to proceed in forma pauperis on appeal from an action initiated by the Commonwealth involving his fundamental liberty interest in his child is an infringement on both the Equal Protection Clause of the Fourteenth Amendment as well as Const., § 115. G.G.L. v. Cabinet for Human Resources, 686 S.W.2d 826, 1985 Ky. App. LEXIS 488 (Ky. Ct. App. 1985).

3. Application.

This section is not confined to criminal cases and an indigent residing in the state may prosecute an appeal in forma pauperis in a civil action. Wilson v. Melcroft Coal Co., 226 Ky. 744 , 11 S.W.2d 932, 1928 Ky. LEXIS 171 ( Ky. 1928 ).

The costs to which this section applies are those which are necessary to allow indigent persons access to the courts and not for court costs incurred. Cummins v. Cox, 763 S.W.2d 135, 1988 Ky. App. LEXIS 177 (Ky. Ct. App. 1988).

The award of costs to the prevailing party at the conclusion of the action is governed by KRS 453.040 and CR 54.04 and not this section. Cummins v. Cox, 763 S.W.2d 135, 1988 Ky. App. LEXIS 177 (Ky. Ct. App. 1988).

4. Discretion of Court.

Denial of services of official stenographer without fees because of inability to pay, was not abuse of discretion, where cost was not great, and it was not conclusively shown defendants had no money. Shipman v. Commonwealth, 264 Ky. 15 , 94 S.W.2d 32, 1936 Ky. LEXIS 267 ( Ky. 1936 ).

This section is not mandatory, the court having discretion in its application. Shipman v. Commonwealth, 264 Ky. 15 , 94 S.W.2d 32, 1936 Ky. LEXIS 267 ( Ky. 1936 ).

Where the affidavit which the appellant filed disclosed without equivocation, that she had no estate and only $135 per month aid for dependent children benefits with which to maintain herself and her infant child and affidavit was uncontradicted, denial of her motion to proceed in forma pauperis was an abuse of discretion. Salyers v. Cornett, 566 S.W.2d 418, 1978 Ky. LEXIS 362 ( Ky. 1978 ).

Where it was undisputed that a party was unable to pay the costs of her proposed dissolution suit, the refusal by a Circuit Judge to permit the party to institute her suit in forma pauperis was error, and a writ of mandamus should have been issued compelling that result. Tolson v. Lane, 569 S.W.2d 159, 1978 Ky. LEXIS 383 ( Ky. 1978 ).

5. Poor Persons.

It is not necessary that an accused be completely destitute before a court may grant him a pauper appeal. Braden v. Commonwealth, 277 S.W.2d 7, 1955 Ky. LEXIS 448 ( Ky. 1955 ).

An indigent defendant subject to imprisonment under KRS 426.390 (repealed) has the same rights, including the right to counsel, as an indigent defendant in a criminal case. Wright v. Crawford, 401 S.W.2d 47, 1966 Ky. LEXIS 393 ( Ky. 1966 ).

When this section is invoked it is the duty of the Circuit Court to adjudicate the question of indigence. Wright v. Crawford, 401 S.W.2d 47, 1966 Ky. LEXIS 393 ( Ky. 1966 ).

Because defendant was found to be a “poor person” under KRS 453.190(2), a trial court erred in imposing costs under KRS 23A.205 and assessing a partial public defender fee under KRS 31.211(1). Miller v. Commonwealth, 391 S.W.3d 857, 2013 Ky. LEXIS 10 ( Ky. 2013 ).

Prior to imposing court costs, the trial court issued no finding on whether defendant was a poor person and did not inquire into his ability to pay cost in the future, and such constituted reversible error; the was a question of fact to be determine by the trial court on remand. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Although the circuit court found defendant to be indigent and in need of public defender services, no determination was made that defendant was a poor person as defined by this section. Without a determination, or a request for a determination, of defendant’s financial status, the Supreme Court would not review the imposition of court costs. Elliott v. Commonwealth, 553 S.W.3d 207, 2018 Ky. LEXIS 286 ( Ky. 2018 ).

6. — Showing Required.

An applicant who wishes to proceed as a pauper must show that he is without funds and once that showing is made the trial court must allow him to proceed at state expense and it will be an abuse of discretion not to permit him to do so. Duke v. Wingo, 415 F.2d 243, 1969 U.S. App. LEXIS 11114 (6th Cir. Ky. 1969 ), cert. denied, 397 U.S. 1013, 90 S. Ct. 1243, 25 L. Ed. 2d 426, 1970 U.S. LEXIS 2404 (U.S. 1970).

Affidavit of accused, which stated that he owned no property above his exemptions, except automobile worth $25, held to show accused was not “poor person” within meaning of this section. Shipman v. Commonwealth, 264 Ky. 15 , 94 S.W.2d 32, 1936 Ky. LEXIS 267 ( Ky. 1936 ).

Before an accused may appeal as a pauper he must show that he is without money or property and without relatives or friends who will assist him and that his attorney cannot make up the bill of evidence from memory. Braden v. Commonwealth, 277 S.W.2d 7, 1955 Ky. LEXIS 448 ( Ky. 1955 ).

Before a party may proceed in forma pauperis, he must show that there are not available any persons or organizations who might have a legal duty, and who are willing and able, to supply the costs of the action. Tolson v. Lane, 569 S.W.2d 159, 1978 Ky. LEXIS 383 ( Ky. 1978 ).

7. — Residence.

Where court in denying motion to proceed in civil action in forma pauperis did not base its ruling on ground petitioner was nonresident of the state, though record showed he was prisoner in Atlanta, Ga., the ruling would be set aside. THOMPSON v. WARD, 409 S.W.2d 807, 1966 Ky. LEXIS 72 (Ky. Ct. App. 1966).

8. — Infants.

An indigent infant, who has been unable to induce a solvent person to act as next friend liable for possible costs of the action, may sue in forma pauperis. Black Mountain Corp. v. Thomas, 218 Ky. 497 , 291 S.W. 737, 1927 Ky. LEXIS 183 ( Ky. 1927 ).

Insolvent next friend of a poor infant may be allowed to sue without giving security for costs. McElrath v. Barnett, 274 Ky. 771 , 120 S.W.2d 216, 1938 Ky. LEXIS 327 ( Ky. 1938 ).

9. — Petitioners Under Uniform Support of Dependents Act.

Under the (former) Uniform Support of Dependents Act (KRS 407.010 , 407.100 to 407.360 ), resident petitioners, if qualified, may proceed in forma pauperis under this section. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

10. Appointment of Counsel.

Where indigent defendant had no counsel at time of arraignment it was duty of court to appoint counsel for him. Shelton v. Commonwealth, 280 Ky. 733 , 134 S.W.2d 653, 1939 Ky. LEXIS 215 ( Ky. 1939 ).

The fact that the person appointed by the court to represent the defendant in a criminal case as attorney was later found not to be a licensed attorney did not render the judgment of conviction void, and such conviction could not be questioned by a writ of habeas corpus; moreover, it is probable that even intentional failure of court to appoint attorney to defend accused would not render judgment void; however, if defendant had any remedy in such case it was by application to the court in which he was tried for a writ of coram nobis. Smith v. Buchanan, 291 Ky. 44 , 163 S.W.2d 5, 1942 Ky. LEXIS 162 ( Ky. 1942 ).

Trial court erred when it declined to allow an attorney a warning order fee in a divorce case and failed to direct the wife to pay the fee because the more specific provisions in KRS 453.060 took precedence over more general language of KRS 453.190(1), and KRS 453.060 (2) clearly mandated that a warning order attorney be granted a reasonable fee. Spees v. Ky. Legal Aid, 274 S.W.3d 447, 2009 Ky. LEXIS 16 ( Ky. 2009 ).

11. Costs to Which Section Applies.

The only costs from which a litigant may be relieved under this section are strictly court costs, which are incident to the litigation and go to officers performing services, and are not jurisdictional. Stafford v. Bailey, 282 Ky. 525 , 138 S.W.2d 998, 1940 Ky. LEXIS 200 ( Ky. 1940 ).

The mandatory service fee imposed by KRS 189A.050 on all persons convicted of driving under the influence of alcohol constitutes an additional “fine” or “penalty”; therefore, it is not part of the court costs and subject to be avoided under the provisions of this section. Beane v. Commonwealth, 736 S.W.2d 317, 1987 Ky. LEXIS 226 ( Ky. 1987 ), overruled, Commonwealth v. Moore, 545 S.W.3d 848, 2018 Ky. LEXIS 194 ( Ky. 2018 ).

12. Transportation Costs.

The trial court has the inherent power to assess, as costs, the amount needed to provide parents with transportation to hearing, the outcome of which