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 [Repealed.]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This section (984, 1017; Acts 1976, ch. 62, § 128) was repealed by Acts 1976 (1st Ex.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 [Repealed.]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This section (982; Acts 1976, ch. 62, § 128) was repealed by Acts 1976 (1st Ex.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 [Repealed.]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This section (Acts 1952, ch. 84, § 72) was repealed by Acts 1976 (Ex.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 [Repealed.]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This section (993, 1015) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (993, 994, 995, 996) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (990) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (987) was repealed by Acts 1976 (1st Ex.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 [Repealed.]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This section (986) was repealed by Acts 1976 (1st Ex.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 [Repealed.]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This section (1003, 1004) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (1005) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (1007) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (999, 1000) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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 [Repealed.]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This section (1006, 1008, 1009) was repealed by Acts 1952, ch. 84, § 6, effective July 1, 1953.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

452.005. Venue for civil claims against the Commonwealth — Certification of service to Attorney General — Notice — Legislative Intent — Requirement of consent to be named as Party — Legislative immunity or privilege.

  1. Except as provided in KRS 5.005 , and notwithstanding any other statute to the contrary, the venue for any civil action that:
    1. Challenges the constitutionality of a Kentucky:
      1. Statute;
      2. Executive order;
      3. Administrative regulation; or
      4. Order of any cabinet, program cabinet, or department established under KRS Chapter 12;
    2. Includes a claim for declaratory judgment or injunctive relief; and
    3. Is brought individually, jointly, or severally against:
      1. Any state official in his or her official capacity, including any public servant as defined in KRS 11A.010 ; or
      2. Any body, subdivision, caucus, committee, or member of the General Assembly, or the Legislative Research Commission; shall be as provided in this section.
    1. A plaintiff who is a resident of Kentucky shall file a complaint or petition in the office of the Circuit Court clerk in the county where the plaintiff resides. If more than one (1) plaintiff is a party to the action, the complaint or petition may be filed in any county where any plaintiff resides. (2) (a) A plaintiff who is a resident of Kentucky shall file a complaint or petition in the office of the Circuit Court clerk in the county where the plaintiff resides. If more than one (1) plaintiff is a party to the action, the complaint or petition may be filed in any county where any plaintiff resides.
    2. A plaintiff who is not a resident of Kentucky shall file a complaint or petition in the Franklin Circuit Court.
  2. The plaintiff shall certify in the complaint or petition filed under this section that a copy of the complaint or petition has been served upon the Attorney General before or at the time of filing, and the Attorney General shall be entitled to be heard.
  3. In any appeal to the Kentucky Court of Appeals or Supreme Court, or the federal appellate courts in any forum that involves the constitutional validity of a statute, executive order, administrative regulation, or order of any cabinet, program cabinet, or department established under KRS Chapter 12, the Attorney General shall, before the filing of the appellant’s brief, be served with a copy of the pleading, paper, or other document that initiates the appeal in the appellate forum. This notice shall specify the challenged statute, executive order, administrative regulation, or order of a cabinet, program cabinet, or department established under KRS Chapter 12, and the nature of the alleged constitutional defect.
  4. The Attorney General shall notify the Legislative Research Commission of:
    1. The receipt of a complaint or petition and the nature of any proceedings involving the validity of any statute or regulation, or order of a cabinet, program cabinet, or department established under KRS Chapter 12; and
    2. The entering of a final judgment in those proceedings, if the Attorney General is a party to the action.
  5. To protect the rights of the citizens of the Commonwealth of Kentucky as guaranteed by the Constitution of Kentucky, it is the intent of the General Assembly that any action brought or pursued under this section be given priority and prosecuted in an expeditious manner.
  6. Pursuant to Sections 43 and 231 of the Constitution of Kentucky, members of the General Assembly, organizations within the legislative branch of state government, or officers or employees of the legislative branch shall not be made parties to any action challenging the constitutionality or validity of any statute or regulation, without the consent of the member, organization, or officer or employee.
  7. Nothing in this section is intended to waive, nor shall it be interpreted or applied to waive or abrogate in any way, any legislative immunity or legislative privilege of any body, subdivision, caucus, committee, or member of the General Assembly, or the Legislative Research Commission, as provided by the Constitution of Kentucky, KRS 418.075 , any other statute of this Commonwealth, or federal or state common law.

HISTORY: 2021 ch. 2, § 1, effective February 2, 2021.

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).

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), sub. op., 2018 Ky. App. LEXIS 262 (Ky. Ct. App. Nov. 2, 2018).

Cited in:

Hensley v. Traxx Mgmt. Co., 622 S.W.3d 652, 2020 Ky. App. LEXIS 58 (Ky. Ct. App. 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

Cited in:

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. Jan. 12, 2007, 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).

Degree and extent of pretrial publicity is not the proper basis in deciding whether to grant a change of venue. Hubers v. Commonwealth, 617 S.W.3d 750, 2020 Ky. LEXIS 297 ( Ky. 2020 ).

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. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122, 1992 U.S. LEXIS 393 (U.S. 1992), cert. denied, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789, 1992 U.S. LEXIS 60 (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).

Trial court did not abuse its discretion in refusing a change of venue; the fact that news about defendant’s first trial was covered by national markets and on social media did not support a change of venue, as the trial court questioned potential jurors to ensure none were impermissibly affected by pretrial publicity. After striking numerous jurors for cause, there were 60 potential jurors who knew minimal details about the case, and the effect of news coverage, most of it over three years prior to the retrial, was not likely to prevent a fair trial. Hubers v. Commonwealth, 617 S.W.3d 750, 2020 Ky. LEXIS 297 ( Ky. 2020 ).

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. 1997 ), 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. 1997 ), 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), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 386, 2010 Ky. LEXIS 102 ( Ky. 2010 ).

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), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 386, 2010 Ky. LEXIS 102 ( Ky. 2010 ).

Cited in:

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.), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7910 (U.S. 2000), modified, 17 S.W.3d 824, 2000 Ky. LEXIS 66 ( Ky. 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., 622 S.W.3d 652, 2020 Ky. App. LEXIS 58 (Ky. Ct. App. 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., 622 S.W.3d 652, 2020 Ky. App. LEXIS 58 (Ky. Ct. App. 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 Board of Tax Appeals 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; 2021 ch. 185, § 90, effective June 29, 2021.

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), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 386, 2010 Ky. LEXIS 102 ( Ky. 2010 ).

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).

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).

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 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).

13.Request for Recording.

Where record did not show upon whose request case that was prosecuted in forma pauperis was recorded it was assumed under KRS 28.430 (repealed) that it was done by direction of the presiding judge. Livingston County v. Crossland, 229 Ky. 733 , 17 S.W.2d 1018, 1929 Ky. LEXIS 836 ( Ky. 1929 ).

14.Voluntary Dismissal.

Where a resident indigent dismissed an action without prejudice, he may maintain another action upon the same cause without paying the costs awarded against him in the former action, it not appearing the dismissal was intended to harass defendant or burden it with unnecessary costs. Hobbs v. Louisville, H. & S. L. R. Co., 126 Ky. 1 , 102 S.W. 818, 31 Ky. L. Rptr. 452 , 1907 Ky. LEXIS 12 ( Ky. 1 907).

15.Payment by Commonwealth.

There was no authority for 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 ).

16.Appeal.

Where defendant seeks to prosecute an appeal in forma pauperis and the trial court denies defendant’s application the Court of Appeals does not conduct a trial de novo but reviews the court’s determination to see whether the evidence developed therein supports the court’s ruling. 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).

Where court term ended immediately after party’s motion for new trial was overruled, motion to appeal in forma pauperis could have been made at any time during vacation, on proper notice to adverse party. Napier v. Hurst-Snyder Hospital Co., 279 Ky. 378 , 130 S.W.2d 771, 1939 Ky. LEXIS 276 ( Ky. 1939 ).

Where party was financially unable, on day her motion for new trial was overruled, to have transcript of evidence prepared, she should have informed the court of this fact by motion to appeal in forma pauperis. Napier v. Hurst-Snyder Hospital Co., 279 Ky. 378 , 130 S.W.2d 771, 1939 Ky. LEXIS 276 ( Ky. 1939 ).

It is within the discretion of the trial judge to see that neither the accused nor the state is imposed upon in granting or refusing the benefit intended to be afforded by the statutes permitting a poor person to appeal without cost. Braden v. Commonwealth, 277 S.W.2d 7, 1955 Ky. LEXIS 448 ( Ky. 1955 ).

The trial judge should see that the accused may not exhaust his funds in the employment of counsel to defend him and then expect the court to permit him to appeal in forma pauperis. Braden v. Commonwealth, 277 S.W.2d 7, 1955 Ky. LEXIS 448 ( Ky. 1955 ).

Before an action is filed, the motion to proceed in forma pauperis is necessarily ex parte; however, nothing in this section mandates that once there are other parties to the litigation they should not have notice and an opportunity to be heard on this question, as with any other question where a court must exercise discretion. Thus, the logical way to review the trial court’s denial of the right to appeal in forma pauperis is not by writ of mandamus, but by appeal. Bush v. O'Daniel, 700 S.W.2d 402, 1985 Ky. LEXIS 287 ( Ky. 1985 ).

17.— Motion in Trial Court.

Where motion to file appeal in forma pauperis was made after time for filing bill of exceptions expired, appellant was not entitled to a copy of such bill if filed but was entitled to have the clerk furnish such portions of the record, not manifested by the bill of exceptions, as would manifest the errors complained of. Wilson v. Melcroft Coal Co., 226 Ky. 744 , 11 S.W.2d 932, 1928 Ky. LEXIS 171 ( Ky. 1928 ).

Where movant merely alleged that motion had been made in trial court and had been overruled, and did not claim that she was then or was now a pauper, and respondent denied that movant was a pauper, motion was overruled by Court of Appeals. McIntosh v. Armour & Co. of Illinois, 279 Ky. 517 , 131 S.W.2d 393, 1939 Ky. LEXIS 302 ( Ky. 1939 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

A person who wishes to obtain the record of his case and to file an appeal in forma pauperis should first make an application in Circuit Court and if the motion is denied should then pursue a motion in the Court of Appeals to show cause why such record should not be furnished without cost. 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 ).

18.— — Denial.

Refusal by court of application to prosecute appeal in forma pauperis was abuse of discretion where the applicant was shown to be incapacitated for work and had no income or property. Wilson v. Melcroft Coal Co., 226 Ky. 744 , 11 S.W.2d 932, 1928 Ky. LEXIS 171 ( Ky. 1928 ).

Motion in Court of Appeals to compel court stenographer to furnish movant, without charge, certified copy of transcript of testimony on ground that movant is a pauper, will be heard as other appeals, and not de novo, where same motion was made in and overruled by trial court, and in the absence of evidence heard on trial of motion, court will assume that trial court’s decision was proper, and that movant’s financial condition has not changed. McIntosh v. Armour & Co. of Illinois, 279 Ky. 517 , 131 S.W.2d 393, 1939 Ky. LEXIS 302 ( Ky. 1939 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

Alleged error of trial court in overruling motion of defendant, convicted under habitual criminal statute, for appeal in forma pauperis, was not grounds for reversal where procedure required to perfect appeal was not followed. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Discretionary refusal by a court to grant an indigent defendant appeal in forma pauperis does not deprive him of any constitutional right. Braden v. Commonwealth, 277 S.W.2d 7, 1955 Ky. LEXIS 448 ( Ky. 1955 ).

A trial court has no authority to refuse to permit a poor person to proceed on appeal in forma pauperis only because it determines the appeal to be frivolous. Peters v. Peters, 728 S.W.2d 541, 1987 Ky. App. LEXIS 476 (Ky. Ct. App. 1987).

19.— Bond.

This section does not authorize the court to relieve a litigant in election contest proceedings brought under KRS 122.090 (now repealed) from the requirement of the latter section that he execute an appeal bond. Stafford v. Bailey, 282 Ky. 525 , 138 S.W.2d 998, 1940 Ky. LEXIS 200 ( Ky. 1940 ).

20.— Transcript.

Under this section a criminal defendant, upon a showing of indigence, has been entitled to prosecute an appeal as a pauper and to receive a free transcript, and the decision of Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 1956 U.S. LEXIS 1059, 55 A.L.R.2d 1055 (1956), was to give constitutional dimension to an established statutory right. 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).

Appellant in forma pauperis in civil case must pay official court reporter for transcripts. Clouse v. Glass Milling Co., 285 Ky. 690 , 149 S.W.2d 9, 1941 Ky. LEXIS 453 ( Ky. 1941 ).

General Assembly no longer provides funding to the Kentucky Court of Justice for pauper transcripts, and the authorization for the payment of transcripts by the Kentucky Administrative Office of the Courts (AOC) has been rescinded; a Circuit Judge lacks any authority or jurisdiction to order the AOC to pay for an appellate indigent record transcription under KRS 453.190(1). Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

Mother’s petition for a writ of mandamus under Ky. Const., §§ 110 and 111, seeking an order to the Kentucky Administrative Office of the Courts (AOC) to reimburse the mother for transcription costs incurred in an in forma pauperis appeal was denied as: (1) KRS 453.190(1) contained no language requiring the AOC to pay for transcripts for an appeal; (2) to order the AOC to pay would violate the separation of powers doctrine; (3) there was no irreparable injury or great injustice as the trial court offered to permit the parties to submit an agreed statement of facts as contemplated by CR 75.07, but the parties refused; and (4) the mother had an adequate remedy at law in an appeal to the intermediate appellate court. Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

21.— Dismissal.

Where appellant was never able to pay costs of appeal and dismissed first appeal due to illness and second appeal was dismissed for failure to pay costs of first, and she was not attempting to harass appellee, she was entitled to prosecute third appeal without paying costs of the first two (2). Sampson v. Morrison, 259 Ky. 555 , 82 S.W.2d 808, 1935 Ky. LEXIS 352 ( Ky. 1935 ).

22.Effect of No-fault Insurance on Tort Rights.

A nonindigent person who has elected to use Kentucky highways, and has not rejected the limitations on tort liability in the no-fault plan, would not be able to recover in tort, and by being precluded from bringing suit, an indigent person is not being discriminated against by reason of economics, but rather is requesting privileges not available to a person who has been able to afford no-fault coverage, and has not rejected abrogation of his tort rights. Probus v. Sirles, 569 S.W.2d 707, 1978 Ky. App. LEXIS 569 (Ky. Ct. App. 1978).

23.Court Costs Properly Assessed.

Under KRS 23A.205 and 31.211 court costs were assessable against a criminal defendant who had needed appointed counsel; paying $ 130 over a six-month period amounted to less than one dollar a day, and defendant presented no evidence that he had any physical or mental disabilities preventing him from employment. Maynes v. Commonwealth, 2010 Ky. App. LEXIS 169 (Ky. Ct. App. Sept. 24, 2010), aff'd, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

Statute allowing for costs to be assessed after sentencing, KRS 23A.205, allowed for court costs to be waived for “poor persons,” as defined in KRS 453.190(2), but did not give defendant the blanket immunity from costs that defendant suggested was required by KRS 31.110. Rather, the trial court could consider under KRS 23A.205 both a defendant’s ability to pay at present and in the foreseeable future, whereas statutes such as KRS 31.100 regarding “needy persons” focused on a defendant’s inability to provide payment for representation by an attorney at all and KRS 31.211 provided solely for a “present tense” determination, which did not apply to defendant because defendant had been released from custody and could work to pay for the modest court costs assessed against defendant. Maynes v. Commonwealth, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

In a drug case, there was no error in requiring defendant to pay court costs because, even though defendant stated he did not believe he had money in a commissary account, the trial court did not find him to be a poor person. The trial court found that defendant would have been able to earn money to pay the nominal court costs after his release from prison. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

24.Court costs vacated.

Imposition of court costs was vacated and the case was remanded for a determination of whether defendant was a poor person as defined by KRS 453.190(2), unable to pay court costs now, and would be unable to pay court costs in the foreseeable future as court costs could be imposed on an indigent defendant, unless the court found that the defendant was a poor person as defined by KRS 453.190(2) and that he or she was unable to pay court costs and would be unable to pay the court costs in the foreseeable future under KRS 23A.205. Reynolds v. Commonwealth, 393 S.W.3d 607, 2012 Ky. App. LEXIS 237 (Ky. Ct. App. 2012).

Cited:

Moy v. Bradley, 306 S.W.2d 296, 1957 Ky. LEXIS 43 ( Ky. 1957 ); Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 2009 Ky. App. LEXIS 80 (Ky. Ct. App. 2009).

Opinions of Attorney General.

The Circuit Court clerk is required to record the orders pertaining to a motion to vacate judgment and to prepare the transcript of the record without any charge to a person who has been allowed to appeal in forma pauperis. OAG 64-345 .

Where the complainant in a paternity suit is allowed to proceed as a pauper, upon the establishment of paternity against the defendant, the filing fees or other court costs can be recovered from the defendant as part of the judgment. OAG 65-212 .

Where the complaining mother, under the Uniform Paternity Act, is a pauper, she should file a pauper’s oath and move the court to be permitted to proceed without paying of filing fees or other court costs after which the court can permit her to proceed. OAG 65-212 .

If both parties in a paternity suit are paupers and have been authorized to proceed as such, the court may in its discretion direct that the county shall pay the deposition expenses if depositions are ordered and the compensation of expert witnesses appointed by the court. OAG 65-391 .

If the parties in a paternity suit, or either of them, are not paupers qualified under this section, the compensation of the expert witness or witnesses shall be paid as the court orders. OAG 65-391 .

The Commonwealth is not liable for the costs and expenses incurred in a paternity suit regardless of the decision reached on the paternity question. OAG 65-391 .

The defendant must pay the costs for subpoenaing jurors in either quarterly or county court if he is convicted unless he proceeds in forma pauperis. OAG 65-732 .

Under KRS 407.220 (now repealed) the court in its discretion may order the costs to be paid by the county in a case brought under the former Uniform Support of Dependents Act. However, if the defendant father in such a case is a pauper the court, under this section may allow him to defend without paying costs. On the other hand if the defendant in such a case is not a pauper under this section, the court may require him to pay the costs. OAG 67-526 .

Where a change of venue was granted and after trial the defendant appealed in forma pauperis, the court and county in which the case was tried is responsible for the payment of the fee for the defendant’s transcript and not the court or county in which the case originated. OAG 68-580 .

A plaintiff who prosecutes a civil suit in forma pauperis pursuant to this section is relieved from paying the tax provided in KRS 142.011 (repealed). OAG 72-702 .

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.

In light of KRS 31.100, 31.120, this section and RCr 8.04 (abolished), if the accused states to the judge that he is a needy person unable financially to obtain counsel, that counsel should be appointed, even though the judge personally feels the individual can afford to retain counsel, since KRS 31.150 (now repealed) provides a statutory remedy against an individual for receipt of legal assistance to which he is not entitled. OAG 74-503 .

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 KRS 453.020 pay the statutory court costs incurred, unless he is proceeding in a forma pauperis situation pursuant to this section, 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 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 of the court 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 a 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 .

Since the court in a paternity action is precluded from assessing the costs, including the blood tests, against the mother under KRS 406.051 and 407.220 (now repealed), and since the defendant is not responsible for such costs if he is a pauper under this section, and since there is no statute imposing the costs on some other person or a governmental unit, there is simply no statutory basis for imposing such costs on any person or governmental unit in such a case. OAG 79-654 .

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 under KRS 64.090 ; if the defendant is convicted, he is responsible for paying such costs unless he is permitted by the court to proceed in forma pauperis under this section and, if he is not convicted, under KRS 64.340 and 453.020 the fee cannot be collected. OAG 83-311 .

Research References and Practice Aids

Kentucky Law Journal.

Bird, The Representation of Indigent Criminal Defendants in Kentucky, 53 Ky. L.J. 478 (1965).

Grove, Gideon’s Trumpet: Taps for an Antiquated System? A Proposal for Kentucky, 54 Ky. L.J. 527 (1966).

Northern Kentucky Law Review.

Herbert, Kentucky’s In Forma Pauperis Statute: Indifferent Justice or Merely Different Justice?, 5 N. Ky. L. Rev. 169 (1978).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Form of Affidavit, Form 32.07.

Caldwell’s Kentucky Form Book, 5th Ed., Motion and Affidavit to Prosecute Appeal in Forma Pauperis (Criminal Case), Form 32.01.

Caldwell’s Kentucky Form Book, 5th Ed., Order Granting Leave to Proceed in Forma Pauperis (State Court), Form 32.13.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Forma Pauperis, § 32.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardians and Conservators (Mentally Disabled Persons), § 260.00.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.33.

Petrilli, Kentucky Family Law, Forms, Support of Minors, Form 6.2.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.30.

453.200. Recovery of costs by insolvent party — Endorsement of costs to protect claims of officers and witnesses.

Whenever a party who recovers a judgment for the costs of the action or of a continuance, is insolvent or in doubtful circumstances, the court, on motion of any person interested, shall endorse the costs so recovered, or as much thereof as necessary, for the benefit of the officers and witnesses who have rendered services in the action, in so far as they are embraced in the judgment then rendered, and they shall be entitled to so much of the costs as will satisfy their fees. The endorsement shall secure the officers and witnesses a preference to all transfers, set-offs and attorney’s liens. The endorsement shall be copied on the execution that issues for the costs, and shall show what part each officer and witness is entitled to, and authorize each to receive the amount so endorsed.

History. 901.

NOTES TO DECISIONS

1.Commissioners.

In action to settle partnership, in which lands were divided between the partners, it was proper to adjudge to commissioner who made settlement a lien on the land allotted to one (1) of the partners for one half (1/2) of commissioner’s fee, it appearing that he was “insolvent or in doubtful circumstances.” Morris v. Proctor, 64 S.W. 978, 23 Ky. L. Rptr. 1233 , 1901 Ky. LEXIS 573 (Ky. Ct. App. 1901).

2.Absence of Indorsement.

Where motions filed by clerk of Circuit Court against sheriff for failing to return executions in civil cases not based on judgments indorsed for the benefit of the officers of the court the motions were insufficient. Taylor v. Sowards, 225 Ky. 567 , 9 S.W.2d 709, 1928 Ky. LEXIS 820 ( Ky. 1928 ).

453.210. Insolvent estates, claims against.

If, in the settlement of insolvent estates, a party presents a claim against the estate and it is not allowed, he shall pay the cost occasioned thereby, except the attorney’s fee. No attorney’s fee shall be allowed any claimant in any case against an insolvent estate.

History. 903.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Insolvent Debtors, § 154.00.

453.220. Plaintiffs who must file bond as security for costs. [Repealed.]

Compiler’s Notes.

This section (C.C. 616: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

453.225. Action to be dismissed if bond not given. [Repealed.]

Compiler’s Notes.

This section (C.C. 617: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

453.230. Plaintiff becoming nonresident must give bond. [Repealed.]

Compiler’s Notes.

This section (C.C. 618: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

453.235. Other plaintiffs may be required to give security for costs — When additional security may be required. [Repealed.]

Compiler’s Notes.

This section (C.C. 619: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

Prior to its repeal, this section was amended by § 145 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.

Legislative Research Commission Note.

This section was amended by 1982 Acts Chapter 141, Section 133 and repealed by 1982 Acts Chapter 118, Section 4. Pursuant to KRS 446.260 , the repeal prevails.

453.240. When additional security may be required. [Repealed.]

Compiler’s Notes.

This section (C.C. 620: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

453.245. Liability of plaintiff’s attorney until bond given. [Repealed.]

Compiler’s Notes.

This section (C.C. 621: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1982, ch. 118, § 4, effective July 15, 1982.

453.250. Enforceability of written agreement to pay attorney fees in event of default. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 169, § 1, effective July 15, 1980) was repealed and reenacted as KRS 411.195 by Acts 1984, ch. 111, § 164, effective July 13, 1984.

453.255. Definitions.

As used in KRS 453.260 and 453.265 , unless the context otherwise requires:

  1. “Commonwealth” means the Commonwealth of Kentucky and any board, bureau, commission, department, division, authority or other entity of the Commonwealth of Kentucky except for political subdivisions.
  2. “Administrative review board” means any entity of an administrative agency having the jurisdiction to hear and determine appeals from final rulings, orders and determinations of that agency or make initial determinations.
  3. “Party” means any individual, partnership, corporation, association or public or private organization other than the Commonwealth.
  4. “Costs” means the reasonable: expenses of expert witnesses, cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the party’s case and necessary attorney fees, and in the case of an action to review an administrative review board decision, all such fees and other expenses incurred in the contested case proceedings in which the decision was rendered.

History. Enact. Acts 1982, ch. 213, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Fees and expenses incurred by receiver.

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. Baughman v. Commonwealth, 572 S.W.3d 473, 2019 Ky. LEXIS 145 ( Ky. 2019 ).

453.260. Additional costs in certain civil actions — Causes for denial of additional costs — Award of attorney fees and other expenses — Computation of fees of attorneys and expert witnesses — Exceptions to application of provisions.

  1. In addition to any costs which are awarded as prescribed by statute, a court shall award costs to any party which prevails by a final adjudication on the merits in any of the following:
    1. A civil action brought by the Commonwealth against the party; and
    2. A civil action brought by the party against the Commonwealth to challenge the assessment or collection of taxes.
  2. The court in its discretion may deny the award provided for in this section, or may reduce the award, if it finds that:
    1. During the course of the proceeding the prevailing party unduly and unreasonably protracted the final resolution of the matter;
    2. The reason that the party other than the Commonwealth has prevailed is an intervening change in the applicable statutes, regulations, or case law;
    3. The prevailing party refused an offer of civil settlement which was at least as favorable to the party as the relief ultimately granted; or
    4. The position of the Commonwealth was substantially justified or a special circumstance would make an award unjust provided, however, that the burden of proof of substantial justification or special circumstance shall rest with the Commonwealth.
  3. A party may apply pursuant to the applicable Rules of Civil Procedure for an award of attorney fees and other expenses authorized under this section and shall include as part of the application evidence of the party’s eligibility for the award and the amount sought, including an itemized and attested statement from the attorneys and experts stating the actual time expended in representing the party and the rate at which the fees were computed. The party shall also allege in such application that the Commonwealth acted without substantial justification.
  4. The court shall base any award of fees as provided in this section on prevailing market rates for the kind and quality of services furnished, except that:
    1. An expert is not eligible for compensation at a rate in excess of the prevailing rate of compensation for similar experts paid by the Commonwealth;
    2. The award of attorney fees may not exceed the amount which the prevailing party has paid or has agreed to pay the attorney or a maximum amount of forty dollars ($40) per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee;
    3. No award shall be greater than ten thousand dollars ($10,000) to each party, except that no award shall be made to any party who voluntarily intervenes in any such action.
  5. This section does not:
    1. Apply to an action arising from a proceeding before the Commonwealth in which the role of the Commonwealth was to determine the eligibility or entitlement of an individual to a monetary benefit or its equivalent, or to adjudicate a dispute or issue between private parties or to establish or fix a rate. As used in this subsection, monetary benefit or its equivalent shall not include a license, permit, charter, or similar instrument that the Commonwealth may require to engage in a business, profession, or similar activity;
    2. Apply to proceedings brought by the Commonwealth pursuant to KRS Chapters 218A, 431 to 439, and 500 to 534;
    3. Apply to proceedings involving eminent domain, foreclosure, collection of judgment debts, or proceedings in which the Commonwealth is a nominal party;
    4. Personally obligate any officer or employee of the Commonwealth for the payment of an award entered under this section; and
    5. Apply to proceedings brought pursuant to KRS Chapters 209, 342, and 625.

History. Enact. Acts 1982, ch. 213, § 2, effective July 15, 1982; 1984, ch. 111, § 165, effective July 13, 1984; 1986, ch. 423, § 194, effective July 1, 1987; 1986, ch. 494, § 25, effective July 15, 1986; 1994, ch. 190, § 13, effective July 15, 1994.

NOTES TO DECISIONS

1.Application.

Action by quadriplegic against the Department of Education and a foreign corporation for breach of warranties of contract between the Department and the corporation for modification of quadriplegic’s van was not covered by this section. Commonwealth Dep't of Education v. Gravitt, 673 S.W.2d 428, 1984 Ky. App. LEXIS 476 (Ky. Ct. App. 1984).

KRS 453.260(2) provides that the court in its discretion may deny an award of attorney’s fees if it finds that the position of the Commonwealth was substantially justified. The absence of mandatory language lead the Court of Appeals to interpret this section as conferring broad discretion on the trial court in deciding whether or not to deny the award. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

This section limits the award to $10,000 to each party. The instant case was a class action in which the members of the class consisted of potentially every taxpayer in the state of Kentucky and each class member was considered a party. That being so, the award granted was well within the $10,000 per party limit. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

Trial court’s enhancement of one (1) plaintiff’s award by 2.5 times and the other plaintiffs’ award by 3 times was a clear abuse of discretion as there was no authority for this type of enhancement in Kentucky in a case brought by taxpayers against Revenue Cabinet over a tax on unmined coal. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

When the Deputy sheriff merit board ordered that a deputy sheriff be reinstated with back pay, and the sheriff refused to comply with the order, the deputy’s equal protection claim that he was entitled to attorney’s fees in his action to enforce the order, on the theory that KRS 453.260(1) and (3) allowed recovery of such fees by a party prevailing in an action brought by the Commonwealth, had no merit because the case did not begin as a civil action brought by the Commonwealth, so KRS 453.260(1) and (3) were not implicated. Cherry v. Augustus, 245 S.W.3d 766, 2006 Ky. App. LEXIS 205 (Ky. Ct. App. 2006).

2.Position of Commonwealth Justified.

The Court of Appeals did not abuse its discretion when it decided that the position of the Revenue Cabinet was substantially justified or had a reasonable basis, under subdivision (2)(d) of this section, where the issues presented in the underlying case were arguably of first impression in this Commonwealth, and the position of the Revenue Cabinet was based on a substantial number of decisions from other jurisdictions and upon a reasonable belief that the extension of the principles in several other state decisions might be achieved. Schmitt Furniture Co. v. Commonwealth, 722 S.W.2d 889, 1987 Ky. LEXIS 191 ( Ky. 1987 ).

3.Prevailing Party.

The plaintiffs’ action was certified as a class action under CR 23.01 and, although different theories were asserted by different parties within the class, they sought the same relief — a declaration that KRS 132.020(5) was unconstitutional. Once the prerequisites of a class action were met and the class was certified, the claims of the representative were claims of the total class and all members of the class shared in the relief. Hence, the plaintiffs did not fail to prevail by a final adjudication on the merits. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

4.Appeal.

When the trial court entered its initial order awarding attorney’s fees, it reserved the determination of the actual amount until a later date, which was ultimately after the Supreme Court’s decision. It has been held that an order allowing an attorney’s fees, but not providing for a distribution of funds to the attorney, is not a “final order” from which an appeal will lie. Even though the initial order in the case at hand contained CR 54.02 finality language, the attorney fees issue was nevertheless interlocutory. Where an order is by its very nature interlocutory, even the inclusion of the recitals provided for in CR 54.02 will not make it appealable. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

5.Challenge of Tax Laws.

Plaintiffs’ in action challenging constitutionality of tax laws were not entitled to costs and attorney’s fees under this section where the position of the Commonwealth was substantially justified or where the reason that the party other than the Commonwealth has prevailed was an intervening change in applicable case law. St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ), reprinted, 942 S.W.2d 893 ( Ky. 1997 ), limited, Dawson v. Birenbaum, 968 S.W.2d 663, 1998 Ky. LEXIS 56 ( Ky. 1998 ).

6.Costs Not Recoverable.

A decision on procedural or jurisdictional grounds that an employee is entitled to a hearing is not a final adjudication on the merits based on legal rights, and costs are therefore not recoverable. Martin v. Personnel Bd., 959 S.W.2d 779, 1997 Ky. App. LEXIS 142 (Ky. Ct. App. 1997).

Cited:

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 ).

453.265. Application of KRS 453.260.

  1. The provisions of KRS 453.260 shall apply only to civil actions initiated after July 15, 1982, except in the case of a court proceeding to review an administrative review board decision, in which case the provisions of KRS 453.260 shall apply only when the administrative review process was initiated after July 15, 1982.
  2. Nothing in KRS 453.260 shall prohibit the Commonwealth from negotiating or attempting to negotiate a settlement of claims arising under KRS 453.260 or from paying such settlements and their associated costs.

History. Enact. Acts 1982, ch. 213, § 3, effective July 15, 1982.

CHAPTER 454 Miscellaneous Civil Practice Provisions

454.010. Verification necessary when writing denied. [Repealed.]

Compiler’s Notes.

This section (473) was repealed by Acts 1952, ch. 84, § 6.

454.011. Declaration of public policy on encouragement of dispute resolution through negotiation and settlement.

It is the policy of this Commonwealth to encourage the peaceable resolution of disputes and the early, voluntary settlement of litigation through negotiation and mediation. To the extent it is consistent with other laws, the courts and state governmental agencies are authorized and encouraged to refer disputing parties to mediation before trial or hearing.

History. Enact. Acts 1998, ch. 261, § 3, effective April 7, 1998.

Research References and Practice Aids

Kentucky Bench & Bar.

Weiss, Is Inheritance an Entitlement or a Gift? How and Why to Use a Facilitator/Mediator in the Estate Planning Process, Vol. 70, No. 1, January 2006, Ky. Bench & Bar 15.

Young and Walker, Building the Ethical Infrastructure to Support Court-Connected Mediation: Kentucky Supreme Court Takes Important Steps, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 12.

454.020. Voter, when exempt from arrest on civil process — Effect of violation.

No sheriff shall execute any civil process of arrest upon any voter attending an election at which he has the right to vote, or in going to or returning from such an election. Execution by a sheriff of any such process contrary to this section is void.

History. 4568.

454.030. Forcible entry or detainer, how notice served.

If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant’s family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises and by mailing a copy of the notice to the mailing address of the premises mentioned in the writ by regular mail through the United States Postal Service, postage prepaid. The notice shall state the time and place of meeting of the court.

History. 2294: amend. Acts 1984, ch. 266, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.Constitutionality.

Where, in forcible entry and detainer action, apartment tenants were constructively served by the posting of notice on their apartment doors under this section, and such notices were often removed from the doors by persons other than tenants, resulting in tenants never receiving notice until served with writs of possession executed after default 1 arguments and the time for appeal had expired, such procedure violated the due process clause under the Fourteenth Amendment of the United States Constitution, since posting notice was not reasonably calculated to reach those who could easily be informed by other means such as by mail. Lindsey v. Greene, 649 F.2d 425, 1981 U.S. App. LEXIS 13180 (6th Cir. Ky. 1981 ), aff'd, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249, 1982 U.S. LEXIS 114 (U.S. 1982).

Posted notice pursuant to this section is constitutionally inadequate. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249, 1982 U.S. LEXIS 114 (U.S. 1982).

Posting of writs of forcible entry and detainer on doors of tenants in public housing project failed to afford tenants adequate notice of the proceedings against them before the issuance of final orders of eviction, and deprived them of property without the due process of law required by the fourteenth amendment. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249, 1982 U.S. LEXIS 114 (U.S. 1982).

2.Sufficiency of Service.

Service upon defendant’s wife, she being over sixteen, in his absence from the county, is sufficient. Swanson v. Smith, 117 Ky. 116 , 77 S.W. 700, 25 Ky. L. Rptr. 1260 , 1903 Ky. LEXIS 286 ( Ky. 1903 ).

Where officer on failing to locate defendant left copy of writ in lattice work of grill gate and writ was found by defendant, the writ was legally posted within meaning of this section. Tinsley v. Majorana, 240 S.W.2d 539, 1951 Ky. LEXIS 965 ( Ky. 1951 ).

Where, as process servers were well aware, notices posted on apartment doors in the area where plaintiff tenants lived were not infrequently removed by children or other tenants before they could have their intended effect, notice by posting on apartment doors could not be considered a reliable means of acquainting interested parties of the fact that their rights were before the courts. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249, 1982 U.S. LEXIS 114 (U.S. 1982).

Where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure such as posting, the state’s continued exclusive reliance on an ineffective means of service is not notice reasonably calculated to reach those who could easily be informed by other means at hand. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249, 1982 U.S. LEXIS 114 (U.S. 1982).

Cited:

Swanson v. Smith, 117 Ky. 116 , 25 Ky. L. Rptr. 1260 , 77 S.W. 700, 1903 Ky. LEXIS 286 ( Ky. 1903 ).

Research References and Practice Aids

Cross-References.

Practice in forcible entry or detainer proceedings, KRS 383.200 to 383.285 .

Kentucky Law Journal.

Comments, Forcible Detainer in Kentucky under the Uniform Residential Landlord and Tenant Act, 63 Ky. L.J. 1046 (1974-1975).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Content for Forcible Entry and Detainer, § 310.00.

454.040. Trespass, joint or several damages for.

In actions of trespass the jury may assess joint or several damages against the defendants. When the jury finds several damages, the judgment shall be in favor of the plaintiff against each defendant for the several damages, without regard to the amount of damages claimed in the petition, and shall include a joint judgment for the costs.

History. 12.

NOTES TO DECISIONS

1.Application.

This section applies to all kinds of trespasses, and affords the jury the right to punish the wrongdoer to the extent of his participation in the wrongful act. Central P. R. Co. v. Kuhn, 86 Ky. 578 , 6 S.W. 441, 9 Ky. L. Rptr. 725 , 1888 Ky. LEXIS 5 ( Ky. 1888 ).

This section had no application to an action for personal injuries resulting from shock and for property damage consisting of injury to reputation of premises alleged to have been caused by act of person in committing suicide on plaintiff’s premises. Morgan v. Hightower's Adm'r, 291 Ky. 58 , 163 S.W.2d 21, 1942 Ky. LEXIS 169 ( Ky. 1942 ), overruled in part, Osborne v. Keeney, 399 S.W.3d 1, 2012 Ky. LEXIS 203 ( Ky. 2012 ).

This section applies to trespass upon and injury to the body of a person. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396 , 224 S.W.2d 165, 1949 Ky. LEXIS 1141 ( Ky. 1949 ).

This section is applicable to actions to recover damages for personal injuries sustained in an automobile collision and authorizes a verdict in such proportions as the participation of the respective defendant in the tortious act may justify. Elpers v. Kimbel, 366 S.W.2d 157, 1963 Ky. LEXIS 5 ( Ky. 1963 ).

This section permitting apportionment of liability between or among joint trespassers is applicable to personal injury actions based on negligence. Orr v. Coleman, 455 S.W.2d 59, 1970 Ky. LEXIS 244 ( Ky. 1970 ).

There is no reason to construe this section to be limited to cases tried before a jury. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

This section has long been held to apply to a variety of torts without any reference to the necessity of pleading the elements of common-law trespass. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

A wrongful death action filed in federal District Court on grounds of diversity, in which several defendants subsequently filed for bankruptcy, would not be stayed on grounds that under this section the bankrupt defendants were necessary and indispensable parties; the issue would be deemed a procedural one (1) to be decided under federal law. Herron v. Keene Corp., 751 F.2d 873, 1985 U.S. App. LEXIS 27609 (6th Cir. Ky. 1985 ).

Apportionment of liability among joint tortfeasors applies when there has been an active assertion of a claim against one (1) who would be a defendant but for the fact that he has settled the claim. Prudential Life Ins. Co. v. Moody, 696 S.W.2d 503, 1985 Ky. LEXIS 264 ( Ky. 1985 ).

This section was enacted in recognition of the fact that the fault of one (1) joint tort-feasor may be more grievous than the fault of another. Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

2.Damages.

Separate damages may be assessed against each negligent tortfeasor, according to the degree of fault but it was not error to assess the damages against tortfeasors jointly. Malone v. Wright, 364 F.2d 818, 1966 U.S. App. LEXIS 5149 (6th Cir. Ky. 1966 ).

In trespass actions the jury may apportion damages according to the relative guilt of each defendant. Central P. R. Co. v. Kuhn, 86 Ky. 578 , 6 S.W. 441, 9 Ky. L. Rptr. 725 , 1888 Ky. LEXIS 5 ( Ky. 1888 ). See Alexander v. Humber, 86 Ky. 565 , 6 S.W. 453, 9 Ky. L. Rptr. 734 , 1888 Ky. LEXIS 7 ( Ky. 1888 ); Saad v. Brown, 144 Ky. 178 , 137 S.W. 834, 1911 Ky. LEXIS 5 51 ( Ky. 1911 ).

The extent of damages awarded in an action of trespass depends upon, inter alia, whether the trespasser was innocent or wilful. Swiss Oil Corp. v. Hupp, 253 Ky. 552 , 69 S.W.2d 1037, 1934 Ky. LEXIS 707 ( Ky. 1934 ), overruled, Harrod Concrete & Stone Co. v. Crutcher, 458 S.W.3d 290, 2015 Ky. LEXIS 72 ( Ky. 2015 ).

This statute modifies the rule of the common law and authorizes a jury to assess separate or joint damages against one (1) or more defendants in actions of trespass, permitting separate verdicts for different amounts against tortfeasors, where there was concurrent or combined negligence or joint commission of a wrong causing the injury. Baldwin v. Wiggins, 289 S.W.2d 729, 1956 Ky. LEXIS 295 ( Ky. 1956 ).

Although an assessment of damages in an action against joint tortfeasors generally is made in a lump sum against those found guilty, this statute allows the jury, in such a case, to sever the damages. Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 1959 Ky. LEXIS 189 ( Ky. 1959 ).

In trespass actions the damages may be assessed severally. Joyce v. Zachary, 434 S.W.2d 659, 1968 Ky. LEXIS 247 ( Ky. 1968 ).

After a partial settlement the jury should be required to assess the total amount of the claimant’s damages and fix the proportionate share of the nonsettling tortfeasor’s liability on the basis of his contribution to the causation, after which the trial court may compute the amount of the judgment to be entered against the nonsettling tortfeasor. Orr v. Coleman, 455 S.W.2d 59, 1970 Ky. LEXIS 244 ( Ky. 1970 ).

Trial court properly entered a judgment finding defendants severally rather than jointly liable where jury apportioned the damages among tortfeasors on a percentage basis, leaving no room to speculate that jury intended joint liability. Cox v. Cooper, 510 S.W.2d 530, 1974 Ky. LEXIS 553 ( Ky. 1974 ).

In jury’s assessment of several damages this section authorizes either a finding of percentages from which court will apportion damages or a finding of specific amounts of damages against the several defendants. S. W. Corum Hauling, Inc. v. Tilford, 511 S.W.2d 220, 1974 Ky. LEXIS 481 ( Ky. 1974 ).

3.Restitution.

Even if plaintiff’s complaint was based on equitable principles of restitution rather than common-law trespass, this section was an appropriate tool for a chancellor to use in forming the proper remedy. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

4.Common Law.

This section is in derogation of the general rule of the common law. Central P. R. Co. v. Kuhn, 86 Ky. 578 , 6 S.W. 441, 9 Ky. L. Rptr. 725 , 1888 Ky. LEXIS 5 ( Ky. 1888 ). See Alexander v. Humber, 86 Ky. 565 , 6 S.W. 453, 9 Ky. L. Rptr. 734 , 1888 Ky. LEXIS 7 ( Ky. 1888 ).

5.Joint Trespassers.

This section does not change the common-law form of proceeding, or authorize a joint action to be brought for several trespasses, but only authorizes several verdicts to be found, and several judgments to be entered, against each of several joint trespassers in a joint action. Ferguson v. Terry, 53 Ky. 96 (1840). See Bonte v. Postel, 109 Ky. 64 , 58 S.W. 536, 22 Ky. L. Rptr. 583 , 1900 Ky. LEXIS 180 ( Ky. 1900 ).

The release of one (1) joint trespasser upon receipt of partial satisfaction does not release the other. Sellards v. Zomes, 68 Ky. 90 , 1868 Ky. LEXIS 232 ( Ky. 1868 ). See Louisville & Evansville Mail Co. v. Barnes' Adm'r, 117 Ky. 860 , 79 S.W. 261, 25 Ky. L. Rptr. 2036 , 1904 Ky. LEXIS 253 ( Ky. 1904 ); City of Covington v. Westbay, 156 Ky. 839 , 162 S.W. 91, 1914 Ky. LEXIS 200 ( Ky. 1914 ); Fennell v. Fechter, 181 Ky. 101 , 203 S.W. 879, 1918 Ky. LEXIS 487 ( Ky. 1918 ).

Where employer and employee are jointly sued for injurious consequences of an indivisible wrongful act of employee, his exoneration by jury from personal liability requires that the verdict against employer be set aside, and to avoid such an incongruous verdict, the instructions should not permit a separate recovery. Baldwin v. Wiggins, 289 S.W.2d 729, 1956 Ky. LEXIS 295 ( Ky. 1956 ).

Although their liability to the injured party may be joint and several, as between or among the joint tortfeasors themselves the burden should be apportioned according to their comparative culpability. Orr v. Coleman, 455 S.W.2d 59, 1970 Ky. LEXIS 244 ( Ky. 1970 ).

6.— Proof.

In an action by plaintiff for injuries received when his vehicle was struck from the rear by other vehicles, it was incumbent on plaintiff to prove that defendants by concerted action were guilty of the wrongful act or acts charged, and that such act or acts were the proximate cause of the injury received or the damage sustained by him. Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 1959 Ky. LEXIS 189 ( Ky. 1959 ).

Law imposes on each of several tortfeasors burden of proving his own innocence or his own limited liability, as case may be. Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 1959 Ky. LEXIS 189 ( Ky. 1959 ).

7.— Liability.

Without common intent and cooperation there can be no joint liability in the commission of several trespasses. Bonte v. Postel, 109 Ky. 64 , 58 S.W. 536, 22 Ky. L. Rptr. 583 , 1900 Ky. LEXIS 180 ( Ky. 1900 ).

Where injury to patron is caused by the sole act of an employee, responsibility may be imputed to the employer by the doctrine of respondeat superior, even though there was no independent negligence on his part, and liability for all damages is inseparable as between them. Baldwin v. Wiggins, 289 S.W.2d 729, 1956 Ky. LEXIS 295 ( Ky. 1956 ).

Where plaintiff is injured by the concurrent or successive negligent acts of two (2) or more parties who cause their vehicles to collide with his vehicle, and it is impossible to determine in what proportion each contributed to his injury, the plaintiff may hold all such tortfeasors jointly liable. Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 1959 Ky. LEXIS 189 ( Ky. 1959 ).

Where shortly before the trial the plaintiff settled with one defendant for $16,500, and thereupon proceeded to trial against the remaining defendant, and where the jury found that the plaintiff’s total damages were $20,000 and each defendant was responsible for 50 percent of the total damages, judgment for the plaintiff against the nonsettling defendant in the amount of $10,000 was proper. D. D. Williamson & Co. v. Allied Chemical Corp., 569 S.W.2d 672, 1978 Ky. LEXIS 387 ( Ky. 1978 ).

When there are joint tortfeasors, the liability of either of them is limited by the extent of his or her fault. Floyd v. Carlisle Constr. Co., 758 S.W.2d 430, 1988 Ky. LEXIS 61 ( Ky. 1988 ) (decision prior to enactment of KRS § 411.182 , see Baker v. Webb, 883 S.W.2d 898, 1994 Ky. App. LEXIS 77 (Ky. Ct. App. 1994).

8.— — Apportionment.

Under the doctrine of contribution, the liability of each joint tortfeasor is equal and is not apportioned on the basis of causation whereas if the trier of fact chooses to apportion its award among the joint tortfeasors, each tortfeasor is liable only for the amount apportioned against it by the trier of fact; therefore by reserving the issue of contribution in the judgment of July 3, the trial court did not expressly indicate that the question of apportionment was also reserved. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

Plaintiff should have the opportunity to argue that the trial court should not apportion liability under this section, the opportunity to question the percentage of liability imposed on each defendant on the basis of the evidence before the trial court, and the right to make the same points to the trial judge as it could have made in a closing argument to a jury properly instructed on the issue. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

The apportionment of a part of the fault to a tortfeasor who is not a party to an action does not impose any liability upon him or warrant a judgment against him; the apportionment only determines the percentage of the total damages for which he was actually responsible and for which he bought his peace. Floyd v. Carlisle Constr. Co., 758 S.W.2d 430, 1988 Ky. LEXIS 61 ( Ky. 1988 ) (decision prior to enactment of KRS 411.182 , see Baker v. Webb, 883 S.W.2d 898, 1994 Ky. App. LEXIS 77 (Ky. Ct. App. 1994).

A tortfeasor who is not actually a defendant is construed to be one for purposes of apportionment if he has settled the claim against him or if he was named as a defendant in the plaintiff’s complaint even though the complaint was subsequently dismissed as to him. Floyd v. Carlisle Constr. Co., 758 S.W.2d 430, 1988 Ky. LEXIS 61 ( Ky. 1988 ) (decision prior to enactment of KRS § 411.182 , see Baker v. Webb, 883 S.W.2d 898, 1994 Ky. App. LEXIS 77 (Ky. Ct. App. 1994).

Liability among joint tortfeasors in negligence cases is no longer joint and several but is several only, and because the liability is several to each negligent joint tortfeasor, it is necessary to apportion a specific share of the liability to each of them, and by necessity, that includes a joint tortfeasor brought into the action as a third-party defendant as well as the defendant named in the original complaint. Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

To the extent that it prohibits apportionment of liability in tort actions between an original defendant and defendants brought into the litigation as third-party defendants, Nix v. Jordan, 532 S.W.2d 762, 1975 Ky. LEXIS 31 ( Ky. 1975 ) is overruled, and Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), is overruled to the extent that it precluded apportionment of liability between the employer and the third person from whom the employee sought recovery of damages. Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

9.— — Comparative Fault.

There is no inconsistency between the doctrine of comparative fault and the literal interpretation of this section which allows juries to apportion fault only among joint defendants brought in by the original plaintiff. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

10.— Indemnity.

Where issue in personal injury action by pedestrian against coal company and hotel was whether either defendant was negligent, and issue in subsequent action by hotel against coal company for indemnity was whether negligence of coal company was primary cause of pedestrian’s injury, there was no identity of issue and judgment in former action, in which defendants were found equally guilty and assessed equal damages, was not res judicata in indemnity action. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396 , 224 S.W.2d 165, 1949 Ky. LEXIS 1141 ( Ky. 1949 ).

Because indemnity involves shifting the entire loss from one tortfeasor to another, indemnity can never involve apportionment of liability under this section. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

11.Instructions to Jury.

Failure of the court to instruct the jury that they might assess either joint or several damages is not reversible error, in the absence of a request for such an instruction. Beavers v. Bowen, 93 S.W. 649, 29 Ky. L. Rptr. 526 (1906).

As among joint tortfeasors the proper instruction should authorize recovery of damages against defendants either jointly in a single sum or separately in sums of different amounts. Daniel v. Patrick, 333 S.W.2d 504, 1960 Ky. LEXIS 192 ( Ky. 1960 ).

The court’s failure to instruct the jury of its right to punish each tortfeasor to the extent of his participation in the wrongful act, and that if one was more guilty than the other, to punish him more severely, constituted prejudicial error. Bacigalupi v. Mucker, 486 S.W.2d 52, 1972 Ky. LEXIS 106 ( Ky. 1972 ).

Since it is reasonable to consider that jurors, as ordinary intelligent people, would understand that percentages of causation attributable to each of joint tortfeasors fixed by them would be determinative of apportionment of damage liability, the jury was not required to be informed through the instruction and the verdict form that the percentages fixed by them would be applied by the court in apportioning liability for the total damage award. S. W. Corum Hauling, Inc. v. Tilford, 511 S.W.2d 220, 1974 Ky. LEXIS 481 ( Ky. 1974 ).

12.Verdict.

The court has no right to refuse to receive the several damages assessed by the jury in the form of separate verdicts. Henry v. Sennett, 42 Ky. 311 , 1843 Ky. LEXIS 10 ( Ky. 1843 ).

The court will not receive the affidavits of jurors after their discharge to show that a verdict joint in form was intended to assess several damages. Alexander v. Humber, 86 Ky. 565 , 6 S.W. 453, 9 Ky. L. Rptr. 734 , 1888 Ky. LEXIS 7 ( Ky. 1888 ).

A jury may return a verdict allowing the plaintiff recovery against one defendant or another, or against both jointly, or against each in different amounts. Lexington Country Club v. Stevenson, 390 S.W.2d 137, 1965 Ky. LEXIS 332 ( Ky. 1965 ).

Where verdict form was susceptible of being construed as requiring apportionment of liability among joint tortfeasors based on percentage of causation but was framed for use in connection with court’s instruction that authorized apportionment as an alternative to finding in a lump sum against defendants jointly, court’s use of the verdict form was not reversible error. S. W. Corum Hauling, Inc. v. Tilford, 511 S.W.2d 220, 1974 Ky. LEXIS 481 ( Ky. 1974 ).

In action to recover damages for personal injuries sustained in multiple-vehicle accident, trial court’s instruction that the jury could state in the verdict what percentage of causation was attributable to each of the defendants was permissible and court was not required to instruct jury that the percentage of causation attributed to each joint tortfeasor would be applied by the court in apportioning liability for damages. S. W. Corum Hauling, Inc. v. Tilford, 511 S.W.2d 220, 1974 Ky. LEXIS 481 ( Ky. 1974 ).

13.Amendment of Judgment.

By apportioning its judgment among several defendants, the trial court automatically amended its earlier joint judgment, and plaintiff should have been given an opportunity to be heard. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

14.Discretion.

There are no guidelines for the application of this section; the trier of fact has complete discretion in determining whether the liability of joint tortfeasors is to be joint or is to be apportioned. Ohio River Pipeline Corp. v. Landrum, 580 S.W.2d 713, 1979 Ky. App. LEXIS 398 (Ky. Ct. App. 1979).

Cited:

Taylor v. Commonwealth, 392 S.W.2d 914, 1965 Ky. LEXIS 291 ( Ky. 1965 ); Nix v. Jordan, 532 S.W.2d 762, 1975 Ky. LEXIS 31 ( Ky. 1975 ); O’Bryan v. Peterson, 563 S.W.2d 732, 1977 Ky. App. LEXIS 904 (Ky. Ct. App. 1977); Hilen v. Hays, 673 S.W.2d 713, 1984 Ky. LEXIS 261 ( Ky. 1984 ); Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789, 1985 Ky. LEXIS 290 , 57 A.L.R.4th 1167 ( Ky. 1985 ); Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ); Stratton v. Parker, 793 S.W.2d 817, 1990 Ky. LEXIS 60 ( Ky. 1990 ); Degener v. Hall Contr. Corp., 27 S.W.3d 775, 2000 Ky. LEXIS 63 ( Ky. 2000 ).

Research References and Practice Aids

Cross-References.

Owner not in possession, action for trespass, KRS 381.230 .

Kentucky Bench & Bar.

Huelsmann, Kentucky Apportionment Law — The Past, the Present and the Future, Volume 52, No. 1, Winter 1987-88 Ky. Bench & B. 19.

Glover, Tort Reform: The Effects of Compulsory Apportionment, Volume 53, No. 1, Winter 1989 Ky. Bench & B. 16.

Kentucky Law Journal.

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Kentucky Law Survey, Germain, Remedies: Contribution and Apportionment Among “Joint Tortfeasors,” 65 Ky. L.J. 286 (1976-77).

Kentucky Law Survey, Warner, Remedies, 67 Ky. L.J. 665 (1978-1979).

Kentucky Law Survey, Ashdown and Hoskins, Torts, 67 Ky. L.J. 695 (1978-1979).

Rogers and Shaw, A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation, 72 Ky. L.J. 25 (1983-84).

Kentucky Law Survey, Adams, Torts, 73 Ky. L.J. 481 (1984-85).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Northern Kentucky Law Review.

Notes, after Hilen v. Hays — Kentucky’s New Comparative Negligence, 13 N. Ky. L. Rev. 129 (1986).

Comment, A Survey of Kentucky Tort Reform, 17 N. Ky. L. Rev. 473 (1990).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Trespass, § 304.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Automobiles, § 16.30.

Kentucky Instructions to Juries (Civil), 5th Ed., Definitions Relating to Negligence, § 14.08.

Kentucky Instructions to Juries (Civil), 5th Ed., Joint Tortfeasors, § 46.01.

Kentucky Instructions to Juries (Civil), 5th Ed., Trespass, §§ 32.02 — 32.04.

454.050. Infants, when to be excluded from courtroom.

In any civil action for slander, seduction or breach of promise of marriage, the judge shall exclude from the courtroom, and from the hearing of the testimony and arguments, all infants under the age of sixteen (16) years, except those who are witnesses in the case or kin to one (1) of the parties.

History. 979.

Research References and Practice Aids

Cross-References.

Exclusion of other persons from courtroom. RCr 9.50.

Kentucky Bench & Bar.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

454.060. Provisions concerning bond required before injunction granted.

  1. If an injunction be granted to stay proceedings upon a levy made under an execution, and the party applying for the injunction desire to discharge the levy, he shall execute a bond to the effect that he will satisfy the execution to the extent to which the injunction may be dissolved, not exceeding the value of the property released; and upon the execution of such bond, and the issuing of the injunction, the levy shall be discharged. If he does not desire to release the levy, he may execute a bond to the effect that, upon a dissolution of the injunction, in whole or in part, he will have the property, or its value, forthcoming and subject to the order of the court; and, upon the execution of such bond, and the issuing of the injunction, the property levied on shall be delivered to him.
  2. If such injunction extends further than the stay of proceedings upon the levy, the party shall give such additional bond as the court, judge or officer granting the injunction may direct.
  3. In all other cases, the court, judge or officer granting the injunction shall, in the order granting it, fix the amount of the bond to be given, and may prescribe its terms. If the terms of the bond be not so prescribed, it shall be to the effect that the party giving it will pay to the party enjoined such damages as he may sustain, if it be finally decided that the injunction ought not to have been granted.
  4. If the injunction be to stay proceedings upon a judgment, the amount of the bond shall be sufficient to cover, with other damages, the sum of money for which judgment was rendered, with five (5) years’ interest thereon, and the rent, hire or value of the use, for two (2) years, of property for which judgment was given; and, in case of personal property, its value also.

History. C. C. 278: trans. Acts 1952, ch. 84, § 1; 1980, ch. 188, § 304, effective July 15, 1980.

NOTES TO DECISIONS

1.Sufficiency of Bond.

Failure of clerk to fix the amount of the bond does not destroy its obligatory force, or relieve the obligors of responsibility thereon. Alexander v. Gardner, 130 Ky. 785 , 113 S.W. 906, 1908 Ky. LEXIS 316 ( Ky. 1908 ).

Although the order granting the injunction does not fix the amount of the bond that should be executed, or prescribe its terms, if, in fact, the record shows that a bond was executed in proper time and manner, it will be sufficient. Hays v. Combs, 177 Ky. 355 , 197 S.W. 788, 1917 Ky. LEXIS 579 ( Ky. 1917 ).

A bond is not defective where there has been substantial compliance with the statutory prescribed conditions. Strong v. Duff, 228 Ky. 615 , 15 S.W.2d 517, 1929 Ky. LEXIS 637 ( Ky. 1929 ).

2.Action on Bond.

An injunction bond will not release the levy of an execution where the condition of the bond is to the effect that, if the injunction is dissolved, the property, or its value, would be forthcoming to satisfy the order of the court but a bond to satisfy the execution in the event the injunction is dissolved discharges the levy, and the remedy is on the bond and not by a sale of the property upon which levy was made. Mallory v. Dauber's Ex'x, 7 Ky. L. Rptr. 243 (1885).

In an action upon an injunction bond, recovery is limited to the amount provided therein, but if damages exceed such amount, recovery of such excess may be through an action for malicious prosecution. Strong v. Duff, 228 Ky. 615 , 15 S.W.2d 517, 1929 Ky. LEXIS 637 ( Ky. 1929 ).

Expenses incurred in defending suit to quiet title are not recoverable in action on injunction bond for damages sustained by reason of an injunction. Noland v. Wise, 287 S.W.2d 142, 1956 Ky. LEXIS 440 ( Ky. 1956 ).

3.Supersedeas Bond.

Execution of a supersedeas bond upon a judgment suspends and supersedes that judgment. United States Fidelity & Guaranty Co. v. Herzig, 124 S.W. 279, 1910 Ky. LEXIS 764 ( Ky. 1910 ).

4.Defective Injunction.

Alleged order of injunction is fatally defective for the reason that it does not appear from the record that any bond was given or that any injunction was ever issued. St. Bernard Coal Co. v. Pittsburg Coal Co., 112 Ky. 418 , 64 S.W. 288, 23 Ky. L. Rptr. 52 , 1901 Ky. LEXIS 282 ( Ky. 1901 ).

5.Extent of Damages.

Where injunctive relief is the sole relief sought, damages and attorney fees for the wrongful issuance of an injunction are not recoverable. However, the ancillary grant of an injunction may form a predicate for damages. Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 1989 Ky. App. LEXIS 154 (Ky. Ct. App. 1989).

6.Dissolution Retroactive.

Finding that appellant could not recover for any damages while injunction was in effect because appeals court, upon dissolving same, did not make the dissolution retroactive was without merit, as an appellate court ruling that an injunction should not have been issued is impliedly retroactive. Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 1989 Ky. App. LEXIS 154 (Ky. Ct. App. 1989).

7.Loss Recoverable.

Where an injunction was wrongfully issued, a business may recover lost profits, costs, and attorney fees, provided same are ascertainable with reasonable certainty. Pharo Distributing Co. v. Stahl, 782 S.W.2d 635, 1989 Ky. App. LEXIS 154 (Ky. Ct. App. 1989).

Cited:

Bell’s Trustee v. Lexington, 124 Ky. 463 , 30 Ky. L. Rptr. 609 , 99 S.W. 344, 1907 Ky. LEXIS 204 ( Ky. 1907 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment, Form 156.27.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment (Another Form) Form 156.28.

454.065. Order of injunction not to issue until bond executed.

The order of injunction shall not be issued by the clerk until a bond, as is required by KRS 454.060 , with good surety of the party obtaining the injunction, shall have been executed in his office.

History. C. C. 279: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Bond Required.

The validity and effectiveness of an injunction depends upon execution of a bond. Powers v. Commonwealth, 139 Ky. 815 , 83 S.W. 146, 26 Ky. L. Rptr. 1111 , 1904 Ky. LEXIS 2 ( Ky. 1904 ).

2.— Final Hearing.

Execution of bond is necessary for restraining orders and temporary injunctions, but not for injunctions granted on a final hearing. Jones v. Commonwealth, 222 Ky. 173 , 300 S.W. 346, 1927 Ky. LEXIS 876 ( Ky. 1927 ).

An injunction restraining a corporation from refusing to disclose corporation records to stockholders was a final order, and, therefore, no bond was necessary. Pilcher v. Stadler, 276 Ky. 450 , 124 S.W.2d 475, 1939 Ky. LEXIS 530 ( Ky. 1939 ).

3.— Sufficiency.

Although the order granting the injunction does not fix the amount of the bond that should be executed, or prescribe its terms, if, in fact, the record shows that a bond was executed in proper time and manner, it will be sufficient. Hays v. Combs, 177 Ky. 355 , 197 S.W. 788, 1917 Ky. LEXIS 579 ( Ky. 1917 ).

4.Recovery on Bond.

An injunction bond will not release the levy of an execution where the condition of the bond is to the effect that, if the injunction is dissolved, the property, or its value, would be forthcoming to satisfy the order of the court but a bond to satisfy the execution in the event the injunction is dissolved discharges the levy, and the remedy is on the bond and not by a sale of the property upon which levy was made. Mallory v. Dauber's Ex'x, 7 Ky. L. Rptr. 243 (1885).

In an action upon an injunction bond to recover damages for depreciation of real property while an order of injunction was effective, evidence must be shown that the owner could or would have sold the property at the higher price reached by the market while the injunction was in force. Avondale Heights Co. v. Proctor, 224 Ky. 188 , 5 S.W.2d 1054, 1928 Ky. LEXIS 563 ( Ky. 1928 ).

To recover upon an injunction bond for loss of use of real estate while the order of injunction was in effect, evidence of damages must be based on more than pure speculation. Avondale Heights Co. v. Proctor, 224 Ky. 188 , 5 S.W.2d 1054, 1928 Ky. LEXIS 563 ( Ky. 1928 ).

When an injunction is the sole relief sought, or if the right to the injunction is determined solely by the result on the merits of the case, no recovery on the bond is allowed for attorney fees or extraordinary costs. Avondale Heights Co. v. Proctor, 224 Ky. 188 , 5 S.W.2d 1054, 1928 Ky. LEXIS 563 ( Ky. 1928 ).

In an action upon an injunction bond, evidence of damage sustained as a result of the injunction is inadmissible without proof of any legal and durable right to the land in question. Strong v. Duff, 228 Ky. 615 , 15 S.W.2d 517, 1929 Ky. LEXIS 637 ( Ky. 1929 ).

In an action upon an injunction bond to recover attorney and stenographer fees, plaintiff may recover only those expenses which were due to or incurred in an effort to defeat the injunction. Strong v. Duff, 228 Ky. 615 , 15 S.W.2d 517, 1929 Ky. LEXIS 637 ( Ky. 1929 ). See Wilder v. Miller, 182 Ky. 210 , 206 S.W. 293, 1918 Ky. LEXIS 344 ( Ky. 1918 ); United States Fidelity & Guaranty Co. v. Travelers' Ins. Mach. Co., 188 Ky. 841 , 224 S.W. 496, 1920 Ky. LEXIS 365 ( Ky. 1920 ), cert. denied, 254 U.S. 653, 41 S. Ct. 216, 65 L. Ed. 459, 1921 U.S. LEXIS 1895 (U.S. 1921), writ of error dismissed, 255 U.S. 563, 41 S. Ct. 375, 65 L. Ed. 787, 1921 U.S. LEXIS 1285 (U.S. 1921); Burley Tobacco Growers' Co-op. Ass'n v. Pennebaker Home for Girls, 221 Ky. 718 , 299 S.W. 734, 1927 Ky. LEXIS 819 ( Ky. 1927 ); Avondale Heights Co. v. Proctor, 224 Ky. 188 , 5 S.W.2d 1054, 1928 Ky. LEXIS 563 ( Ky. 1928 ).

Where administrator obtained judgment for damages against defendant, who thereafter filed a motion to set it aside as being void for want of jurisdiction and filed an independent action against the sheriff and his deputy, to prevent a sale of his property under execution levy, praying that further proceedings be stopped until further order from the court, and, where the injunction was dissolved by the Circuit Court and its action affirmed on appeal, which involved both the appeal from the judgment in the damage suit and that in the injunction suit, the administrator could not recover attorney fees and alleged expenses incurred in defending the injunction suit, in action upon the bond. Holt's Adm'r v. Johnson, 247 Ky. 180 , 56 S.W.2d 962, 1933 Ky. LEXIS 369 ( Ky. 1933 ).

454.070. Acceptance of sureties by clerk.

Sureties in injunction bonds shall be accepted by the clerk under the same responsibilities as in other cases of sureties accepted by him.

History. C. C. 280: trans. Acts 1952, ch. 84, § 1.

454.075. Certain judgments not to be enjoined. [Repealed.]

Compiler’s Notes.

This section (C.C. 284; Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (1st Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

454.080. Judgment to be enjoined in court rendering — Affidavit.

An injunction to stay proceedings on a judgment shall not be granted, in an action brought by the party seeking the injunction, in any other court than that in which the judgment was rendered. Nor shall such injunction be granted, unless the party applying therefor make affidavit that no injunction has been previously granted to stay the proceedings on such judgment.

History. C. C. 285: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Application.

Provision of this section that “an injunction to stay proceedings on a judgment shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the judgment was rendered,” applies not only to the party against whom the judgment was rendered, but to all parties who seek to stay proceedings on the judgment. Mallory v. Dauber's Ex'x, 7 Ky. L. Rptr. 243 (1885).

Where the judgment is void, or where there is no judgment, and the execution, therefore, has no foundation upon which to rest, provisions of this section have no application, and proceedings thereunder may be enjoined in any court of competent jurisdiction. Kentucky River Hardwood Co. v. Noble, 168 Ky. 773 , 182 S.W. 941, 1916 Ky. LEXIS 624 ( Ky. 1916 ).

2.Jurisdiction.

The Louisville Chancery Court has no authority to grant an injunction to stay proceedings on a judgment of the Jefferson Court of Common Pleas. Mallory v. Dauber's Ex'x, 7 Ky. L. Rptr. 243 (1885).

Circuit Court has no jurisdiction to enjoin the sale of property under an execution issued upon a judgment rendered in the court of a justice of the peace.. Chesapeake, O. & S. W. R. Co. v. Reasor, 84 Ky. 369 , 1 S.W. 599 ( Ky. 1886 ).

A Circuit Court is without jurisdiction to enjoin the execution of a judgment rendered by the Court of Appeals for the reason of an error in the taxation of costs. Shackelford v. Patterson, 110 Ky. 863 , 62 S.W. 1040 ( Ky. 1901 ).

Proceeding to enjoin the collection of an illegal tax, although growing out of a judgment of the county court, decreeing an election on the proposition for levying the tax, was properly maintained in the Circuit Court. Waring v. Bertram, 75 S.W. 222, 25 Ky. L. Rptr. 307 (1903).

Collection of fine imposed in the county court for obstructing a passway, by injunction proceedings in the Circuit Court is prohibited by this section. Evans v. Cook, 111 S.W. 326, 33 Ky. L. Rptr. 788 (1908).

The Morgan Circuit Court had no jurisdiction to grant an injunction preventing the enforcement of the judgment of the Johnson Circuit Court, canceling certain deeds and for sale of lands therein described, one (1) tract of which was located in Morgan County. Daniels v. Gillum, 203 Ky. 262 , 262 S.W. 272, 1924 Ky. LEXIS 899 ( Ky. 1924 ).

3.Judgment.

A judgment is not void merely because it was rendered against the defendant individually rather than against him as a trustee, and therefore another court has no power to enjoin such judgment. McConnell v. Raive, 1 S.W. 582, 8 Ky. L. Rptr. 343 (1886).

While the quarterly court judgment may have been erroneous in awarding capias ad satisfaciendum, it was not void, hence, the Circuit Court was without authority to grant an injunction staying proceedings thereon. Barnes v. Groves, 294 Ky. 824 , 172 S.W.2d 650, 1943 Ky. LEXIS 545 ( Ky. 1943 ).

An order of a county court calling an election in an ex parte proceeding is not a judgment of court in the usual and ordinary sense or such as is contemplated by this section, nor is it of such a character that an appeal might be taken to the Circuit Court as provided in KRS 23.030 (repealed). Stieritz v. Kaufman, 314 Ky. 10 , 234 S.W.2d 145, 1950 Ky. LEXIS 1004 ( Ky. 1950 ), overruled, Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

4.— Void.

Where defendant had not been served with process or given notice of the proposed action of the county judge at the time judgment was rendered, the judgment was clearly void and a court of chancery has the power to enjoin the beneficiaries of such judgment from proceeding thereunder. Combs v. Sewell, 59 S.W. 526, 22 Ky. L. Rptr. 1026 (1900).

Judgment rendered in a magistrate’s court against a defendant not served with summons or warrant, is void, and Circuit Court had jurisdiction to prevent, by injunction, the sale of such defendant’s land. Robinson v. Carlton, 123 Ky. 419 , 96 S.W. 549, 29 Ky. L. Rptr. 876 , 1906 Ky. LEXIS 162 ( Ky. 1906 ).

A void judgment may be enjoined in any court of competent jurisdiction and not merely in the court rendering the judgment. Willis v. Tomes, 141 Ky. 431 , 132 S.W. 1043, 1911 Ky. LEXIS 18 ( Ky. 1911 ); Hays v. Baker, 237 Ky. 265 , 35 S.W.2d 296, 1931 Ky. LEXIS 584 ( Ky. 1931 ).

Where action on the part of the notary public and county judge was unauthorized and, therefore, void, the enforcement of any order made by them, or either of them in regard thereto, may be prevented by injunction issued by the Circuit Court of the county in which such action was taken. E. H. Taylor, Jr., & Sons v. Thornton, 178 Ky. 463 , 199 S.W. 40, 1917 Ky. LEXIS 759 ( Ky. 1917 ).

If judgment of quarterly court is void, its collection may be enjoined by Circuit Court. Hoffman v. Shuey, 223 Ky. 70 , 2 S.W.2d 1049, 1928 Ky. LEXIS 277 ( Ky. 1928 ).

This section has no application where the judgment sought to be enjoined is void, so that the attempted enforcement of a void judgment may be enjoined in any court of competent jurisdiction. Viall v. Walker, 248 Ky. 197 , 58 S.W.2d 415, 1933 Ky. LEXIS 219 ( Ky. 1933 ).

This section applies to voidable judgments which may be collaterally attacked in any court of general jurisdiction. Ewing v. Union Cent. Bank, 254 Ky. 623 , 72 S.W.2d 4, 1934 Ky. LEXIS 118 ( Ky. 1934 ).

A forged replevin bond is void and execution thereon may be enjoined by any court of competent jurisdiction. Commonwealth use of Eversole v. West, 261 Ky. 204 , 87 S.W.2d 385, 1935 Ky. LEXIS 629 ( Ky. 1935 ).

5.Purpose of Action.

Circuit Court has jurisdiction to enjoin the judgment of a police court where the main purpose of the action is to attack the constitutionality of the ordinance under which the appellant was allegedly denied his property rights. Boyd v. Frankfort, 117 Ky. 199 , 77 S.W. 669, 25 Ky. L. Rptr. 1311 , 1903 Ky. LEXIS 279 ( Ky. 1903 ).

Where the main purpose of the suit is to have declared invalid a particular ordinance, an injunction prayed for therein is only incidental relief, and the provisions of this section do not apply. Arnett v. Cardwell, 135 Ky. 14 , 121 S.W. 964, 1909 Ky. LEXIS 257 ( Ky. 1909 ).

6.Dissolution of Injunction.

Under this section motion to dissolve an injunction granted by the chancery division, restraining defendant from turning off its natural gas from plaintiff’s premises, was sustained where such defendant acted under authority of a judgment obtained in another action in the law and equity division of the Circuit Court, then pending in the Court of Appeals. Nairin v. Kentucky Heating Co., 86 S.W. 676, 27 Ky. L. Rptr. 551 (1905).

Court of Appeals properly dissolved a stay of execution upon a judgment issued by the circuit court because a gas company failed to show “extraordinary cause” for interlocutory relief where, while the judgment was valid and enforceable, the company’s assertion of loss of income or damage to reputation was inadequate to justify an injunction, and the equities appeared to weigh in favor of the Public Service Commission inasmuch as the civil penalty underlying the case was issued against the company by the Commission as a default judgment in 1999 and, despite some delay in enforcement, the Commission had taken the necessary steps to satisfy the judgment. Pollitt v. PSC of Ky., 552 S.W.3d 70, 2018 Ky. LEXIS 289 ( Ky. 2018 ).

7.Remedy by Appeal.

An order of a county court establishing a ferry was not intended by statute to be enjoinable by another county court, but the proper remedy is by appeal. Stahl v. Brown, 84 Ky. 325 , 1 S.W. 540, 8 Ky. L. Rptr. 279 , 1886 Ky. LEXIS 69 ( Ky. 1886 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment, Form 156.27.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment (Another Form), Form 156.28.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Sale of Real Property, Form 156.29.

454.085. Damages if injunction dissolved.

Upon the dissolution, in whole or in part, of an injunction to stay proceedings upon a judgment, the damages shall be assessed by the court; which may hear the evidence and decide in a summary way, or may, at its discretion, cause a jury to be impaneled to find the damages. If the collection, payment or use of money be enjoined, the damages may be any rate percent on the sum released by the dissolution, which, in the discretion of the court, may be proper, not exceeding ten percent. And, if the delivery of property have been delayed by the injunction, the value of the use, hire or rent thereof shall be assessed; judgment shall be rendered against the party who obtained the injunction for the damages assessed; and the assessment shall be conclusive against the surety of such party.

History. C. C. 295: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Discretion of Court.

The discretion in awarding damages under this section is not arbitrary, but, in determining the equitable rights of the parties and the necessity of resorting to a court of equity for relief, the fact that the chancellor had no power to grant the injunction does not require him to lose sight of the equities between the parties, in order that he may award damages on the dissolution of the injunction; damages should be nominal only. Mallory v. Dauber's Ex'x, 7 Ky. L. Rptr. 243 (1885).

The question of damages resulting from the dissolution of an injunction is a matter that addresses itself to the sound discretion of the court. Preece v. Hardin, 253 Ky. 226 , 69 S.W.2d 361, 1934 Ky. LEXIS 645 ( Ky. 1934 ).

2.Extent of Damages.

Where damages are not assessed by the court on dissolution of an injunction, no recovery can be had in an action on the injunction bond. Mason, Gooch & Hoge Co. v. Mechanics' Lien & Trust Co., 118 Ky. 707 , 82 S.W. 290, 26 Ky. L. Rptr. 570 , 1904 Ky. LEXIS 91 ( Ky. 1904 ).

Upon dissolution of injunction, to stay proceedings upon a judgment, the damages the court may assess under this section do not include attorney fees; such fees must be recovered as a part of the damages in an action on the injunction bond. Stearns Coal & Lumber Co. v. Tuggle, 167 Ky. 438 , 180 S.W. 532, 1915 Ky. LEXIS 850 ( Ky. 1915 ).

In the absence of a showing of damages sustained by reason of the court’s withholding amount of the judgment, defendant may not complain of the court’s refusal to assess those damages on the injunction bond. Pacific Coal Mining Co. v. Horn, 218 Ky. 554 , 291 S.W. 767, 1927 Ky. LEXIS 193 ( Ky. 1927 ).

Court erred in rendering judgment upon the face of an injunction bond executed when the temporary restraining order was obtained, but should have ascertained and rendered judgment for damages. Ruth v. Robinson, 268 Ky. 843 , 106 S.W.2d 91, 1937 Ky. LEXIS 542 ( Ky. 1937 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment, Form 156.27.

Caldwell’s Kentucky Form Book, 5th Ed., Verified Complaint to Enjoin Proceedings on a Judgment (Another Form), Form 156.28.

454.090. Procedure for confession of judgment.

Any person may personally appear in a court of competent jurisdiction and, with the assent of a person having a cause of action against him, confess judgment therefore; whereupon judgment shall be entered accordingly.

History. C. C. 381: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Consent Judgment.

An agreed judgment entered into between a credit union and a debtor, by which the credit union in part consented to relinquish its right to demand immediate payment of the full balance due, in exchange for a promise to make monthly payments, was in essence a consent judgment, a private contract entered into between parties and sanctioned by order of court; it did not and could not confer a power of attorney to subsequently confess judgment against the debtor. Ashland Armco Employees Credit Union v. Cantrell, 685 S.W.2d 559, 1984 Ky. App. LEXIS 582 (Ky. Ct. App. 1984).

454.095. Cause of action to be stated in judgment.

The cause of action shall be briefly stated in the judgment, or in a writing to be filed as pleadings in an action.

History. C. C. 382: trans. Acts 1952, ch. 84, § 1.

454.100. Effect of judgment.

Such judgment shall authorize the same proceedings as judgments rendered in actions, and the confession shall operate as a release of errors.

History. C. C. 383: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Default Judgment.

Where taxpayer brought suit in quarterly court against assessment of property by city board of supervisors who appeared by counsel and stated they desired to make no defense, the judgment rendered by the court was not confessed judgment, but only a default judgment from which an appeal can be taken to the Circuit Court. Board of Supervisors v. Pinnell, 292 Ky. 364 , 166 S.W.2d 882, 1942 Ky. LEXIS 108 ( Ky. 1942 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.2.

454.110. When infant may vacate judgment.

An infant may, within twelve (12) months after attaining the age of eighteen (18) years, show cause against a judgment, unless it be for a tort done by, or for necessaries furnished to, the infant; or unless it be rendered upon a set-off or counterclaim stated in an answer; but the vacation of such judgment shall not affect the title of a bona fide purchaser under it.

History. C. C. 391: trans. Acts 1952, ch. 84, § 1; 1974, ch. 386, § 103.

NOTES TO DECISIONS

1.Purpose.

The intent of this section was to extend the time in which an infant might prosecute an appeal from a judgment affecting his rights, but not to suspend or supersede the right of an adult to have his rights finally determined. Early v. Douglass, 110 Ky. 813 , 62 S.W. 860, 23 Ky. L. Rptr. 298 , 1901 Ky. LEXIS 136 ( Ky. 1901 ).

2.Application.

An action can be maintained under this statute only in the case of a void judgment, for if the judgment is erroneous, the remedy is by appeal. Ogden v. Stevens, 98 Ky. 564 , 33 S.W. 932, 17 Ky. L. Rptr. 1115 , 1896 Ky. LEXIS 7 ( Ky. 1896 ).

If error in judgment appears on the face of the record, the remedy of an infant is by appeal, and if the judgment is unjust, the relief on appeal is the same as relief by action when the error is not shown by the record. Bartlett v. Louisville Trust Co., 212 Ky. 13 , 277 S.W. 250, 1925 Ky. LEXIS 1063 ( Ky. 1925 ).

3.Vacation of Judgment.
4.— Infant.

Fraud is one (1) of the grounds upon which an infant may rely for the review of a judgment against him, but any suit brought for that purpose must be brought within one (1) year next after the infant arrives at the age of 21 years, and the plaintiff must, by proper averments, show himself to be within that limitation. Back v. Combs, 96 Ky. 522 , 29 S.W. 352, 16 Ky. L. Rptr. 613 , 1895 Ky. LEXIS 116 ( Ky. 1895 ).

The right of an infant to sue applies only to such infants as were interested in the suit at the time of the rendition of the decree, and not to such as may, since that time, have become interested by the death of some other person who was a party to the cause. Back v. Combs, 96 Ky. 522 , 29 S.W. 352, 16 Ky. L. Rptr. 613 , 1895 Ky. LEXIS 116 ( Ky. 1895 ).

An infant is limited to 12 months after arriving at his majority to show cause against the judgment. Oliver v. Park, 101 Ky. 1 , 39 S.W. 423, 19 Ky. L. Rptr. 179 , 1897 Ky. LEXIS 142 ( Ky. 1 897 ).

Infants may maintain an action to vacate a judgment settling the estate of their deceased father and directing a sale of the realty to pay decedent’s debts upon the ground that the administrator failed to contest fraudulent claims against the estate, regardless of whether they were properly before the court in the suit for a settlement. Roll v. Stum, 46 S.W. 223, 20 Ky. L. Rptr. 661 (1898).

Where infants are nonresidents and are properly before the court by warning order, and the attorney appointed for them as nonresidents makes a report, a judgment rendered against them without a guardian ad litem having been appointed is not void and is not subject to collateral attack. Myers v. Pedigo, 72 S.W. 734, 24 Ky. L. Rptr. 1923 (1903).

An infant who wishes to modify or vacate a judgment under this section must proceed by petition, and not by a motion to redocket. Leavell v. Carter, 123 Ky. 459 , 96 S.W. 597, 29 Ky. L. Rptr. 920 , 1906 Ky. LEXIS 170 ( Ky. 1906 ).

While an infant may by petition, within 12 months after attaining the age of 21 years show cause against a judgment under this section, where the error in the proceedings does not appear therein, the infant loses such right unless exercised within a year after he becomes of age. Leavell v. Carter, 112 S.W. 1118 ( Ky. 1908 ).

Where a sale of land belonging to infants was adjudged for their education and support, the sale was made and confirmed, the parties were properly before the court and it had jurisdiction of the subject matter, if there was error in the proceedings their remedy was by appeal or steps to vacate the judgment within one (1) year after arriving at age. Harris v. Hopkins, 166 Ky. 147 , 179 S.W. 14, 1915 Ky. LEXIS 652 ( Ky. 1915 ).

An infant may, within 12 months after reaching his majority, seek relief from a judgment rendered against him during infancy, in either one (1), but not both, of two (2) ways: by petition for new trial under this section, or by appeal. Wilhelm v. Hendrick, 177 Ky. 296 , 197 S.W. 836, 1917 Ky. LEXIS 597 ( Ky. 1917 ).

Right of infants to prosecute an appeal under this section expired one (1) year after they reached majority age. Auxier v. Auxier, 180 Ky. 518 , 203 S.W. 310, 1918 Ky. LEXIS 104 (Ky.), modified, 182 Ky. 588 , 206 S.W. 789, 1918 Ky. LEXIS 402 ( Ky. 1918 ).

If injustice is done infant by judgment and injustice does not appear on face of record, infant may have judgment modified or set aside, under this section, without averring or showing diligence in preparation of his defense to action or any of special grounds for which new trials may be claimed. Bartlett v. Louisville Trust Co., 212 Ky. 13 , 277 S.W. 250, 1925 Ky. LEXIS 1063 ( Ky. 1925 ).

Answer and exceptions to commissioner’s report of sale, filed after the term at which judgment was rendered had expired, where allegations were as elaborate as allegations required to vacate a judgment and no objection was made for want of verification, were sufficiently considered together to be treated as a petition for vacation of judgment as against decedent’s minor children. Wilson's Adm'r v. Wilson, 288 Ky. 522 , 156 S.W.2d 832, 1941 Ky. LEXIS 139 ( Ky. 1941 ).

Judgment based on improper service of process upon infant defendants is void, not merely erroneous, and for that reason can be challenged at any time. Smith v. Canada, 290 S.W.2d 463, 1956 Ky. LEXIS 315 ( Ky. 1956 ).

In an action by an adopted child after she reached age 21 to set aside a judgment that she was not entitled to any interest in her adoptive father’s estate as a pretermitted child under KRS 394.380 (now repealed), where the evidence showed that the statutory guardian of the child and the attorney who represented her in the original action acted conscientiously in her best interest, the trial court finding that the original judgment was not obtained by fraud was supported by the evidence and, therefore, a consideration of the merits of the child’s claim against the estate was not required. Schultz v. Schultz, 361 S.W.2d 107, 1962 Ky. LEXIS 230 ( Ky. 1962 ).

5.— Person Representing Infant.

Where a guardian ad litem did not make or attempt to make any effort in behalf of the infant for whom she was appointed, such infant may at any time after judgment against her, within a period of one (1) year after attaining the age of majority, show cause against such judgment and have it vacated. Booker v. Kennerly, 96 Ky. 415 , 29 S.W. 323, 16 Ky. L. Rptr. 537 , 1895 Ky. LEXIS 110 ( Ky. 1895 ).

Where a wife who owned jointly with her husband a tract of land sold by him failed to unite with him in the deed to his vendee, and, after the death of both the grantor and his wife, the grantee brought suit against their infant heirs asking either that the contract be rescinded or that a commissioner be required to execute a deed to him on behalf of the infants for the interest descending to them from their mother, it appearing that the infants had received assets from their father equal in amount to the value of the land for which they would be required to account in the event of a rescission, and the statutory guardian having asked for that reason that a commissioner be directed to execute a conveyance on behalf of the infants, a judgment to that effect was not void. Ogden v. Stevens, 98 Ky. 564 , 33 S.W. 932, 17 Ky. L. Rptr. 1115 , 1896 Ky. LEXIS 7 ( Ky. 1896 ).

The guardian ad litem of an infant defendant cannot, after two (2) years following the rendition of the judgment affecting the infant defendant’s rights, take an appeal from such judgment to the Court of Appeals, but the infant defendant may, by his statutory guardian or next friend, take such appeal at any time after two (2) years from the rendition of the judgment, or in his own right, within the year succeeding the reaching of his majority. Webb v. Webb's Guardian, 176 Ky. 96 , 195 S.W. 96, 1917 Ky. LEXIS 3 ( Ky. 1917 ).

Where there was an attempt of the guardian ad litem of infant defendants to take an appeal to the Court of Appeals from a judgment of the Circuit Court directing a sale of their interest in real estate, after the expiration of two (2) years from the rendition of such judgment, by the filing of a transcript of the record in the office of the clerk of the Court of Appeals, accompanied by the required statement making the infants, as well as their guardian ad litem, appellants, the absence of right on the part of the guardian ad litem to prosecute the appeal did not prevent its maintenance by the infant appellants by next friend; and in such case the Court of Appeals had authority to allow the statement of appeal to be amended by substituting the name of the next friend for that of the guardian ad litem. Webb v. Webb's Guardian, 176 Ky. 96 , 195 S.W. 96, 1917 Ky. LEXIS 3 ( Ky. 1917 ).

In a petition to vacate a judgment from personal injury action brought without authorization by infant’s father as next friend, infant need not aver diligence or other special grounds for which new trial may be granted to adults; it is enough that he was infant when judgment was rendered, applied for relief within prescribed time, and that judgment is unjust under facts presented by infant. Metzger Bros. v. Watson's Guardian, 251 Ky. 446 , 65 S.W.2d 460, 1933 Ky. LEXIS 899 ( Ky. 1933 ).

Infant over 14 years of age has right to select his own next friend to bring suit. Metzger Bros. v. Watson's Guardian, 251 Ky. 446 , 65 S.W.2d 460, 1933 Ky. LEXIS 899 ( Ky. 1933 ).

In administrator’s proceeding to sell decedent’s realty to pay debts, where depositions fixed value of the property between $800 and $1,000, widow made no election between homestead and dower for herself and infant children and where judgment was entered on depositions not taken upon interrogatories, court properly set the judgment aside and permitted answer to be filed, since such judgment would work an injustice on decedent’s children. Wilson's Adm'r v. Wilson, 288 Ky. 522 , 156 S.W.2d 832, 1941 Ky. LEXIS 139 ( Ky. 1941 ).

In absence of authority to represent infants in a suit for the sale of land, nonresident defendants may not complain of the judgment by seeking to have it set aside. Underwood v. Cunningham, 307 Ky. 109 , 209 S.W.2d 853, 1948 Ky. LEXIS 699 ( Ky. 1948 ).

6.— Married Woman.

By express language, married women are excepted from the operation of this statute. Eversole v. First Nat'l Bank, 136 Ky. 362 , 124 S.W. 360, 1910 Ky. LEXIS 493 ( Ky. 1910 ) (decision prior to 1974 amendment).

If an infant is a married woman at the time judgment is rendered against her, she cannot have judgment vacated after reaching age of majority. Schlenker v. Clark, 226 Ky. 665 , 11 S.W.2d 725, 1928 Ky. LEXIS 157 ( Ky. 1928 ) (decision prior to 1974 amendment).

Infant married women do not have the right to postpone an action by a claim of the disability of infancy. Hicks v. Steele, 309 Ky. 833 , 219 S.W.2d 35, 1949 Ky. LEXIS 817 ( Ky. 1949 ) (decision prior to 1974 amendment).

7.Bona Fide Purchaser.

Purchaser of infant’s property and transferee of his interest who were parties to the action are presumed to have known the illegal method used in depriving the infant of his property, and thus cannot be bona fide purchasers. Davidson v. Marcum, 89 S.W. 703, 28 Ky. L. Rptr. 562 , 1905 Ky. LEXIS 259 (Ky. Ct. App. 1905).

When a judgment against infants is reversed, the reversal only affects the title or possession of one (1) who is not a bona fide purchaser at a sale made under the judgment before the reversal. Turner v. Middlesboro, 117 S.W. 422, 1909 Ky. LEXIS 518 ( Ky. 1909 ). See District of Clifton v. Pfirman, 110 S.W. 406, 33 Ky. L. Rptr. 529 (1908).

A party to the action, before judgment, or the plaintiff who procures the judgment, or his assignee, or an attorney in the action in which an infant’s real property is adjudged to be sold, if a purchaser of the property at the sale, is not a bona fide purchaser, within the meaning of this section. Webb v. Webb's Guardian, 178 Ky. 152 , 198 S.W. 736, 1917 Ky. LEXIS 706 ( Ky. 1917 ).

A purchaser, at a decretal sale of an infant’s real property, who is a stranger to the record, is a bona fide purchaser, within the meaning of this section, if no reason exists for denying to him that status except the fact that when his bid is tentatively accepted and reported he thereby becomes a party to the action. Webb v. Webb's Guardian, 178 Ky. 152 , 198 S.W. 736, 1917 Ky. LEXIS 706 ( Ky. 1917 ).

Where the lands of infants are sold at a decretal sale under an erroneous judgment, a bona fide purchaser within this section will not be disturbed. Girdler v. Girdler, 184 Ky. 260 , 211 S.W. 857, 1919 Ky. LEXIS 67 ( Ky. 1919 ).

The vacation of a judgment by an infant shall not affect the title of a bona fide purchaser under it. Owensboro v. Hardwick, 232 Ky. 751 , 24 S.W.2d 555, 1930 Ky. LEXIS 73 ( Ky. 1930 ).

The title of bona fide purchaser could not be affected by errors in the proceedings through which purchaser at judicial sale acquired title, unless judgment authorizing sale and the sale were void. Ohio Oil Co. v. West, 284 Ky. 796 , 145 S.W.2d 1035, 1940 Ky. LEXIS 566 ( Ky. 1940 ).

Where a court has jurisdiction of the parties and subject matter and orders a sale by the master commissioner, which is later fairly made to a bona fide purchaser who is not a party to the action and then is confirmed by the court, such purchaser cannot be divested of the property on the ground that the judgment of sale was erroneous, even though property in which an infant was interested was sold under the decree. Hume v. Chenault, 305 Ky. 68 , 202 S.W.2d 1018, 1947 Ky. LEXIS 769 ( Ky. 1947 ).

Appellant, who in good faith has purchased real estate for fair value from a fiduciary whose deed is voidable, becomes a bona fide purchaser, and her title may not be voided in absence of collusion or fraud. Eads v. Brinegar, 306 Ky. 343 , 207 S.W.2d 772, 1947 Ky. LEXIS 1021 ( Ky. 1947 ).

Cited:

Taylor v. Webber, 83 S.W. 567, 26 Ky. L. Rptr. 1199 (1904); Hays v. Beaver Creek Coal & Coke Co., 178 Ky. 149 , 198 S.W. 743, 1917 Ky. LEXIS 707 (1917); Lucas v. Stanley, 185 Ky. 221 , 215 S.W. 38, 1919 Ky. LEXIS 274 ( Ky. 1919 ); Battermore v. Hensley, 267 Ky. 669 , 103 S.W.2d 68, 1937 Ky. LEXIS 363 ( Ky. 1937 ); Chenault v. State Bank & Trust Co., 278 Ky. 453 , 128 S.W.2d 715, 1939 Ky. LEXIS 419 ( Ky. 1939 ); Kidd v. Roundtree, 285 Ky. 442 , 148 S.W.2d 275, 1941 Ky. LEXIS 397 (1941); Cini v. Ball, 288 Ky. 471 , 156 S.W.2d 486, 1941 Ky. LEXIS 129 ( Ky. 1941 ); Hudson v. Hightower, 307 Ky. 295 , 210 S.W.2d 933, 1948 Ky. LEXIS 723 ( Ky. 1948 ); Rice v. Dowell, 322 S.W.2d 468, 1959 Ky. LEXIS 309 ( Ky. 1959 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.25.

454.125. Process may issue and bonds may be taken on holidays.

It shall be no objection to any process, writ, summons, affidavit or order for a provisional remedy that it was issued, made or dated on a holiday; nor shall it be an objection to any bond given by or for any party to an action, or taken by an officer in the course of the same, that it was made or dated on any such day.

History. C. C. 664: trans. Acts 1952, ch. 84, § 1.

Research References and Practice Aids

Cross-References.

Holidays, KRS 2.110 .

454.130. When process may be issued and executed on holiday or Sunday. [Repealed.]

Compiler’s Notes.

This section (C.C. 665: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1996, chs. 201, § 2, effective July 15, 1996.

454.135. When defendant exempt from service of process.

Subject to the provisions of KRS 421.180 , the defendant shall have no privilege of exemption from the service of the process on a holiday or Sunday, except from an arrest, by reason of his attendance at any muster, election, or order of survey, or as a witness at any court or other place.

History. C. C. 666: trans. Acts 1952, ch. 84, § 1; 1996, ch. 201, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1.Waiver.

In an appeal from judgment upon exemption of defendant from service of process by reason of his attendance in court as a witness, the appellate court, in affirming the judgment, determined that it could not review the alleged error because no exception was filed and therefore it was waived. Dunnaway v. Commonwealth, 198 Ky. 605 , 249 S.W. 795, 1923 Ky. LEXIS 522 ( Ky. 1923 ).

454.140. Officers to whom process to be directed — Provisional remedies.

  1. Every process in an action or proceeding shall be directed to the sheriff of the county; or, if he be a party, or be interested, to the coroner; or, if he be interested, to the jailer; or, if all these officers be interested, to any constable.
  2. The summons or an order for a provisional remedy, in an action or proceeding, may, at the request of the party in whose behalf it is issued, be directed to any of the officers named in subsection (1) of this section who is not a party to nor interested in the action.

History. C. C. 667: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Process.

The word “process” as used in this section, includes an execution. Gowdy v. Sanders, 88 Ky. 346 , 11 S.W. 82, 10 Ky. L. Rptr. 912 , 1889 Ky. LEXIS 38 ( Ky. 1889 ). See Johnson v. Elkins, 90 Ky. 163 , 13 S.W. 448, 11 Ky. L. Rptr. 967 , 1890 Ky. LEXIS 60 ( Ky. 1890 ).

2.Improper Officer.

Attachment must be executed by the officer to whom it is directed, and it cannot be executed by any officer to whom it might have been directed. Menderson v. Specker, 79 Ky. 509 , 3 Ky. L. Rptr. 421 , 1881 Ky. LEXIS 67 (Ky. Ct. App. 1881).

Where curtesy in a house and lot was levied upon and sold by virtue of an execution, and the owner of the right resisted a motion for a writ of possession, on the grounds that the levy and sale were void because the execution was directed to the “coroner or jailer of Taylor County” and was executed by the jailer, the court determined that in the absence of a showing that the sheriff and coroner were interested the jailer had no authority to execute the writ, and sale was void. Gowdy v. Sanders, 88 Ky. 346 , 11 S.W. 82, 10 Ky. L. Rptr. 912 , 1889 Ky. LEXIS 38 ( Ky. 1889 ).

An execution must be executed by the officer to whom it is directed. It is not sufficient that it is executed by an officer to whom it might have been directed. Johnson v. Elkins, 90 Ky. 163 , 13 S.W. 448, 11 Ky. L. Rptr. 967 , 1890 Ky. LEXIS 60 ( Ky. 1890 ).

Return of “no property” made by a coroner upon an execution directed to the sheriff is a nullity. Johnson v. Elkins, 90 Ky. 163 , 13 S.W. 448, 11 Ky. L. Rptr. 967 , 1890 Ky. LEXIS 60 ( Ky. 1890 ).

In an action in Circuit Court where an order of attachment was issued by the clerk and directed to the marshal of a town and duly served on the garnishee, the court determined the marshal had no authority to execute the process and its service created no lien. Pinckard v. Davis, 99 Ky. 269 , 35 S.W. 921, 18 Ky. L. Rptr. 185 , 1896 Ky. LEXIS 86 ( Ky. 1896 ).

Process can be executed only by the officer to whom it is directed, and a jailer has no authority to sell land under an execution issued to the sheriff, and a deed made pursuant thereto is void. Parsons v. Dills, 159 Ky. 471 , 167 S.W. 415, 1914 Ky. LEXIS 815 ( Ky. 1914 ).

A summons directed to the sheriff of one county may not be executed by the sheriff of another county upon a defendant residing in the latter county, and a judgment rendered upon the defendant served in that manner is void. Foster v. Hill, 282 Ky. 327 , 138 S.W.2d 495, 1940 Ky. LEXIS 172 ( Ky. 1940 ).

3.Interested Officer.

The principal sheriff is never allowed to execute his own process, and so careful is the law in guarding the interest of the defendant in such a case, that not even the deputy is permitted to execute the process, but it must go to the coroner, an officer not supposed to be under the influence of the sheriff. Chambers v. Thomas, 10 Ky. 536 , 1821 Ky. LEXIS 214 ( Ky. 1821 ) (decided under prior law).

Where a sheriff who received a summons in an action against himself pending in another county directed to the sheriff of the county in which he and a number of other persons of the same name resided, accepted the same for service, made his formal return thereon showing service on the person named in the summons as defendant, transmitted the summons to the clerk of the Circuit Court whence it issued, retained and appropriated to his own use the legal fees which accompanied the summons and permitted the court and the parties to proceed to judgment upon the faith thereof, all without disclosing his identity as that of the defendant in the action or without making any objection for four (4) or five (5) months thereafter, was estopped to then say that the service was insufficient. James v. Ashland Finance Co., 235 Ky. 180 , 30 S.W.2d 897, 1930 Ky. LEXIS 327 ( Ky. 1930 ).

The claim of a defective service of summons by an interested sheriff, who was party to the action, was waived by defendant by the fact that such defendant executed appeal bond, made contentions that the bond was good, and entered his appearance in court. Partin v. Gilbert, 275 Ky. 19 , 120 S.W.2d 667, 1938 Ky. LEXIS 357 ( Ky. 19 38 ).

In an action to contest a local option election, in which the members of the county board of election commissioners were required to be made parties defendant, service of summons by the sheriff, on the two (2) appointive members of the board, constituted valid service as to them, notwithstanding that sheriff was ex officio member of the board, and a written acceptance of service by the sheriff, on a summons directed to the coroner and delivered to the sheriff, constituted a valid entry of appearance by the sheriff, even though acceptance did not comply with requirements of statutes as to acknowledgment of service. Adams v. Letcher County, 299 Ky. 171 , 184 S.W.2d 801, 1944 Ky. LEXIS 1039 ( Ky. 1944 ).

Opinions of Attorney General.

In the absence of the appointment of a specific Kentucky police officer to serve a process in a particular case as authorized by KRS 454.145 , an officer of the Kentucky state police has no authority to serve process, including a summons, in a civil case. OAG 69-215 .

No special person may be appointed to serve summonses and attachments in connection with circuit and quarterly court cases except the judges of Circuit Court may appoint one bailiff pursuant to KRS 24.265 (repealed) who would be classified as a deputy sheriff. OAG 74-657 .

The legislature designed KRS 454.145 to enable a court, where the interest of justice and the orderly working of the court demand, to resort to the appointment of a special bailiff to serve a particular and specifically designated process in that particular case only, instead of the court’s having to resort to the application of this section or KRS 425.046(1)(a); thus, where the court has, in its discretion as described above, appointed a special bailiff under KRS 454.145 to serve a writ of possession, that special bailiff then has the authority to so serve the writ of possession, as required under KRS Chapter 425. OAG 84-366 .

A court is authorized to appoint special bailiffs only when service by the sheriff would be impossible or ineffectual because appointment of special bailiffs on an ongoing basis when the sheriff is available blatantly flouts the purpose of this section. OAG 91-212 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Rules of Civil and Criminal Procedure, Vol. 42, No. 1, Jan. 1978, Ky. Bench & Bar 22.

Kentucky Law Journal.

Boster, Creditors’ Rights—Judgment Liens and Priorities in Kentucky, 41 Ky. L.J. 464 (1953).

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

454.145. Court may appoint person to serve particular process.

The court, for good cause, may appoint a person to serve a particular process or order, and he shall have the same power to execute it which a sheriff has. His return must be verified by his affidavit. He shall be entitled to the fees allowed to sheriffs for similar services.

History. C. C. 668: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Residence.

A special bailiff appointed by the court to serve a summons under this section must reside in the county in which the defendant is summoned. Lillard v. Brannin, 91 Ky. 511 , 16 S.W. 349, 13 Ky. L. Rptr. 74 , 1891 Ky. LEXIS 85 ( Ky. 1891 ).

2.Good Cause.

The appointment of a special bailiff to serve a notice of contest of a nomination was not authorized by this section where the grounds for the appointment were an affidavit of the plaintiff which showed no reason why the notice could and would not be served by the jailer or his deputy, or any of the constables in the county. Brumleve v. Cronan, 176 Ky. 818 , 197 S.W. 498, 1917 Ky. LEXIS 134 ( Ky. 1917 ).

In the absence of great or irreparable injury or great injustice, serving of summons upon petitioner by a special bailiff is authorized by this section upon the showing of good cause. McGaughey v. Keith, 392 S.W.2d 445, 1965 Ky. LEXIS 280 ( Ky. 1965 ).

Service of summons by special bailiff appointed by Circuit Judge pursuant to affidavit stating that defendant has previously evaded attempts to serve him and that affiant believed it would be impossible to serve the summons unless a special bailiff was appointed, was valid and proper. McGaughey v. Continental Illinois Nat'l Bank & Trust Co., 419 S.W.2d 139, 1967 Ky. LEXIS 136 ( Ky. 1967 ).

3.Service on Own Witness.

A party who has been appointed a special bailiff may serve a subpoena upon his own witness without violating this section. Croley v. Huddleston, 304 Ky. 811 , 202 S.W.2d 637, 1947 Ky. LEXIS 740 ( Ky. 1947 ).

Opinions of Attorney General.

A special bailiff appointed by a court pursuant to this section is within the designation of “other ministerial officers” contained in KRS 435.230(2) (now repealed) and may arm himself as permitted by that section. OAG 68-397 .

In the absence of the appointment of a specific Kentucky police officer to serve a process in a particular case as authorized by this section, an officer of the Kentucky state police has no authority to serve process, including a summons, in a civil case. OAG 69-215 .

Special bailiffs are not independent contractors and they are not engaging in private enterprise in carrying out their function. OAG 72-538 .

The appointment of special baliffs is left to the good judgment of the Circuit Court in those pending cases which require such an appointment. OAG 72-538 .

The Circuit Court can devise and promulgate reasonable regulations affecting the special bailiffs as to qualifications and performance of duties. OAG 72-538 .

This section does not suggest the appointment of a person to serve process on a regular and continuous basis. OAG 74-657 .

An employee of a sinking fund of a first class city could not be appointed by the Circuit Court or the quarterly court as a special bailiff to serve process on the defendant where the sinking fund is a plaintiff in the action to collect delinquent occupational taxes. OAG 77-636 .

Special bailiffs appointed under this section are not county or state officers but are agents of the court appointing them, therefore an appointment as special bailiff and the office of city policeman or marshal are not incompatible. OAG 77-652 A.

The special bailiff is a part of the court of justice; he is not a county employee. OAG 82-640 .

This section in no way envisions a general or continuing appointment; the court’s order of appointment must spell out with particularity or specificity the particular process or order, or particular processes or orders if more than one (1), and when the particular process or processes or orders have been executed, and proper return made, the appointment of special bailiff is at an end. OAG 82-640 .

The legislature designed this section to enable a court, where the interest of justice and the orderly working of the court demand, to resort to the appointment of a special bailiff to serve a particular and specifically designated process in that particular case only, instead of the court’s having to resort to the application of KRS 454.140 or 425.046(1)(a); thus, where the court has, in its discretion as described above, appointed a special bailiff under this section to serve a writ of possession, that special bailiff then has the authority to so serve the writ of possession, as required under KRS Chapter 425. OAG 84-366 .

A court is authorized to appoint special bailiffs only when service by the sheriff would be impossible or ineffectual because appointment of special bailiffs on an ongoing basis when the sheriff is available blatantly flouts the purpose of KRS 454.140 . OAG 91-212 .

A person appointed pursuant to this section, having the same power as a sheriff in connection with the execution of a given process under KRS 70.180 , is in the status of an “other nonelective peace officer” within the meaning of KRS 61.300(1). OAG 95-4 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

454.150. Procedure for restoration of money received by the Commonwealth where judgment rendered upon constructive service is modified or set aside.

When the Commonwealth shall have received money under a judgment rendered upon constructive service, and the defendant did not appear, and such judgment is thereafter modified or set aside under the provisions of the Rules of Civil Procedure, upon a retrial, the court in making an order for the restoration of such money, shall direct the proper financial officer of the Commonwealth to draw his warrant upon the Treasurer for the proper amount in favor of the party in whose favor the order of restoration may be made, and it shall thereupon become the duty of such officer to draw his warrant in obedience to such order.

History. C. C. 414: Acts 1888, ch. 1471; trans. and amend. Acts 1952, ch. 84, § 15.

NOTES TO DECISIONS

1.Appellate Review.

Order granting defendants a new trial under this section was not a final one, and Court of Appeals had no jurisdiction to review on appeal. Commonwealth ex rel. Reeves v. Unknown Heirs of Brown, 249 S.W.2d 52, 1952 Ky. LEXIS 795 ( Ky. 1952 ).

Cited:

Kenmont Coal Co. v. Fisher, 259 S.W.2d 480, 1953 Ky. LEXIS 961 ( Ky. 1953 ); Gregory v. Sohio Petroleum Co., 261 S.W.2d 623, 1953 Ky. LEXIS 1028 ( Ky. 1953 ).

454.155. Effect of new trial on title to property sold under attachment or judgment.

The title of purchasers in good faith to any property sold under an attachment or judgment shall not be affected by a new trial allowed a defendant constructively summoned, except the title of property obtained by the plaintiff and not bought of him in good faith by others.

History. C. C. 417: trans. and amend. Acts 1952, ch. 84, § 16.

NOTES TO DECISIONS

1.Application.

This section applies only to juridical sales, and good title does not pass to appellants who executed a new lease on the property in question prior to the time any steps were taken to set aside the default judgment that canceled the former lease on that property. Anton v. Gilliam, 114 F. Supp. 93, 1953 U.S. Dist. LEXIS 3921 (D. Ky. 1953 ), aff'd, 220 F.2d 750, 1955 U.S. App. LEXIS 3416 (6th Cir. Ky. 1955 ).

This section applies only to juridical sales, and good title does not pass to a person who executed a new lease after the former lease was canceled by a default judgment which was later vacated. Gregory v. Sohio Petroleum Co., 261 S.W.2d 623, 1953 Ky. LEXIS 1028 ( Ky. 1953 ). See Anton v. Gilliam, 114 F. Supp. 93, 1953 U.S. Dist. LEXIS 3921 (D. Ky. 1953 ), aff'd, 220 F.2d 750, 1955 U.S. App. LEXIS 3416 (6th Cir. Ky. 1955 ).

2.Purchaser in Good Faith.

By “good faith,” as judicially interpreted, is meant a purchase made not merely for a consideration, but also without notice to the purchaser of an adverse claim to the property by others, for the taking of an estate after notice of a prior right makes one a mala fide purchaser. Kellar v. Stanley, 86 Ky. 240 , 5 S.W. 477, 9 Ky. L. Rptr. 388 , 1887 Ky. LEXIS 119 ( Ky. 1887 ).

Property obtained by the plaintiff in an action against a defendant constructively summoned cannot, in contemplation of this section, be regarded the subject of pending litigation until such defendant has entered his appearance and moved for a retrial of the action and consequently another person may, before that is done, buy it of the plaintiff and be a purchaser in good faith. Kellar v. Stanley, 86 Ky. 240 , 5 S.W. 477, 9 Ky. L. Rptr. 388 , 1887 Ky. LEXIS 119 ( Ky. 1887 ).

Where defendant purchased land from plaintiff, giving notes in which a lien was retained, and subsequently defendant and his wife mortgaged the land, and, in a suit to enforce the vendor’s lien, constructive service was had on the mortgagee, and plaintiff bid in the land at the sale in his action and then sold it to defendant’s wife, the court held that the wife could not be regarded as an innocent purchaser whose title should not be disturbed. King v. Huni, 118 Ky. 450 , 81 S.W. 254, 85 S.W. 723, 25 Ky. L. Rptr. 2266 , 27 Ky. L. Rptr. 528 , 1904 Ky. LEXIS 61 ( Ky. 1904 ), modified, 118 Ky. 456 , 85 S.W. 723 ( Ky. 1905 ).

Cited:

Underwood v. Cunningham, 307 Ky. 109 , 209 S.W.2d 853, 1948 Ky. LEXIS 699 ( Ky. 1948 ).

454.160. Lien created only by attachment or judgment.

No lien on the property of a defendant constructively summoned shall be created otherwise than by an attachment, as is provided in KRS 425.301 to 425.316 , or by judgment; nor shall any person be restrained from paying or delivering any money or property in his hands belonging or due to such defendant, by notice indorsed on the summons, or otherwise than by attachment or judgment.

History. C. C. 418: trans. Acts 1952, ch. 84, § 1; 1980, ch. 188, § 305, effective July 1, 1980.

NOTES TO DECISIONS

1.Attachment Necessary.

In action wherein the plaintiff, in his petition, set up his debt against the nonresident, described the land and prayed for the sale thereof, there being no service, no appearance and no attachment, the judgment ordering the sale was void. Grigsby v. Barr, 77 Ky. 330 , 1878 Ky. LEXIS 81 ( Ky. 1878 ).

2.Lien.

Where action was brought on a debt and attachment sued out against a nonresident defendant it was held that the indorsement of a levy on land on an attachment after the return day thereof, as shown upon the face of the writ, was invalid and no lien was created on the land by such indorsement. Peters v. Conway, 67 Ky. 565 , 1868 Ky. LEXIS 194 ( Ky. 1868 ) (decided under prior law).

In an action to subject the real estate of a defendant constructively served the levy of an attachment is not necessary to give the court jurisdiction to sell the property if a lien exists by contract, by statute, by the nature of the action or in equity; therefore, in an action upon a return of no property, an attachment is not necessary to create a lien if the property sought to be subjected is specifically described in the petition, as a lien is thereby created. Trabue v. Conners, 84 Ky. 283 , 1 S.W. 470, 8 Ky. L. Rptr. 288 , 1886 Ky. LEXIS 64 ( Ky. 1886 ).

An attachment is necessary to give the court jurisdiction in an action against a defendant constructively summoned, unless a lien is asserted. Commonwealth v. Vanderbilt, 118 Ky. 787 , 82 S.W. 426, 26 Ky. L. Rptr. 716 , 1904 Ky. LEXIS 107 ( Ky. 1904 ).

The presence of real estate in the Commonwealth, not related to the subject matter of the litigation, does not constitute sufficient contact with the forum so as to justify a lien on that property to enforce a judgment in a quasi in rem action. Citizens Bank & Trust Co. v. Collins, 762 S.W.2d 411, 1988 Ky. LEXIS 72 ( Ky. 1988 ).

3.Personal Judgment.

Personal judgment cannot be rendered against a defendant who has not appeared, although summoned as provided by law. Griswold v. Popham, 62 Ky. 170 , 1864 Ky. LEXIS 11 ( Ky. 1864 ) (decided under prior law).

Personal judgment cannot be rendered against a mere garnishee, who is cited only by service of attachment, and who did not appear, nor was required to appear, to disclose fact. Griswold v. Popham, 62 Ky. 170 , 1864 Ky. LEXIS 11 ( Ky. 1864 ) (decided under prior law).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Nonresident Defendant, Form 150.02.

454.165. Personal judgment against defendant constructively summoned forbidden.

No personal judgment shall be rendered against a defendant constructively summoned, and who has not appeared in the action, except as provided in KRS 454.210 .

History. C. C. 419: trans. and amend. Acts 1952, ch. 84, § 17; 1968, ch. 46, § 6.

NOTES TO DECISIONS

1.In General.

In action wherein the plaintiff, in his petition, set up his debt against the nonresident, described the land and prayed for the sale thereof, there being no service, no appearance, and no attachment, the judgment ordering the sale was void. Grigsby v. Barr, 77 Ky. 330 , 1878 Ky. LEXIS 81 ( Ky. 1878 ).

2.Nonresident.

Personal judgment in action by wife, against the husband residing in another state and constructively served, for support and maintenance of herself and infant child and asking for attachment, is forbidden by this section. Pendleton v. Pendleton, 112 S.W. 674 ( Ky. 1908 ).

A nonresident defendant who has been constructively served, and has not entered an appearance, may not have a personal judgment rendered against him, as the court is without jurisdiction. Dean v. Stillwell, 284 Ky. 639 , 145 S.W.2d 830, 1940 Ky. LEXIS 554 ( Ky. 1940 ).

Constructive service does not give a court jurisdiction over a nonresident defendant who did not appear in a suit arising out of an automobile accident, so that a personal judgment may not be rendered against him. Odley v. Wilson, 309 Ky. 507 , 218 S.W.2d 17, 1949 Ky. LEXIS 733 ( Ky. 1949 ).

Nonresident wife who had been constructively served with process in divorce action and who did not appear in such action brought by the husband was not barred from maintaining action for the recovery of money spent for the support of children. Murphy v. Murphy, 464 S.W.2d 231, 1970 Ky. LEXIS 99 ( Ky. 1970 ).

Constructive service via warning order attorney will not subject nonresidents to personal judgment; constructive service is sufficient merely to confer jurisdiction quasi in rem. Dalton v. First Nat'l Bank, 712 S.W.2d 954, 1986 Ky. App. LEXIS 1165 (Ky. Ct. App. 1986).

Personal judgment initially entered by a family court in dissolution proceedings against former husband was improper under KRS 454.165 because the former husband, who was a nonresident, was improperly served as the husband was not served via the Secretary of State as required by KRS 454. 210(3); thus, personal jurisdiction was not obtained pursuant to KRS 454.220 . Miller v. McGinity, 234 S.W.3d 371, 2007 Ky. App. LEXIS 322 (Ky. Ct. App. 2007).

CR 60.02(e) motion to set aside prior orders and judgments in a dissolution action was improperly denied because appellant former husband, who lived in Texas, was only constructively served and, thus, a personal judgment against him was void under KRS 454.165 . Personal jurisdiction was not obtained under KRS 454.210 , the long-arm statute, or KRS 407.520(5) as any child support payments made by the father did not conform to the family court order and thus did not seem to be at the family court’s directive. Soileau v. Bowman, 382 S.W.3d 888, 2012 Ky. App. LEXIS 222 (Ky. Ct. App. 2012).

3.Cost of Proceeding.

Judgment requiring nonresident infant defendants who had been constructively served and did not appear, to pay part of the costs of the proceeding is not a personal judgment, but merely a recitation that costs be paid in proportionate parts by the parties in relation to their interest in the property. Harp v. Stamper, 309 Ky. 368 , 217 S.W.2d 968, 1949 Ky. LEXIS 721 ( Ky. 1949 ).

4.Judgment in Rem.

A judgment in rem cannot be rendered against a defendant constructively summoned, except in favor of a plaintiff who has acquired a lien by attachment or otherwise, against the property of the nonresident and then the judgment can only be to subject the property of the nonresident to the payment of his debt, to the extent of the proceeds of such property. First Nat'l Bank v. Sanders Bros., 162 Ky. 374 , 172 S.W. 689, 1915 Ky. LEXIS 81 ( Ky. 1915 ), overruled, Moorman v. Taylor, 285 Ky. 347 , 147 S.W.2d 1021, 1941 Ky. LEXIS 383 ( Ky. 1941 ).

5.Appearance.

Personal judgment cannot be rendered against a mere garnishee, who is cited only by service of attachment, and who did not appear, nor was more required to appear, to disclose fact. Griswold v. Popham, 62 Ky. 170 , 1864 Ky. LEXIS 11 ( Ky. 1864 ) (decided under prior law).

Personal judgment cannot be rendered against a defendant who has not appeared, although summoned as provided by law. Griswold v. Popham, 62 Ky. 170 , 1864 Ky. LEXIS 11 ( Ky. 1864 ) (decided under prior law).

6.Unknown Defendant.

Since the requirement of CR 4.15 that the defendant be described if unknown was not met, and since CR 4.05 makes such a defendant the subject of constructive service of process, whereas this section prevents achievement of in personam jurisdiction over those who are the subject of constructive service of process summary judgment was properly granted for defendant construction company which had been originally designated simply as “John Doe.” Richmond v. Louisville & Jefferson County Metropolitan Sewer Dist., 572 S.W.2d 601, 1977 Ky. App. LEXIS 930 (Ky. Ct. App. 1977).

While CR 4.15 allowed an action to be filed against an unknown defendant, and CR 4.05 provided that an unknown defendant could be the subject of constructive service of process, KRS 454.165 provided that a court could not achieve in personam jurisdiction over persons who were the subject of constructive service of process, and constructive service was sufficient merely to confer jurisdiction quasi in rem. Ryan v. Ky. Farm Bureau Mut. Ins. Co., 2003 Ky. App. LEXIS 207 (Ky. Ct. App. Aug. 22, 2003), rev'd, 177 S.W.3d 797, 2005 Ky. LEXIS 358 ( Ky. 2005 ).

7.Appearance by Counsel.

The appearance by the defendant’s counsel in signing the agreed order of dismissal and in filing motions seeking affirmative relief did not constitute an entry of appearance sufficient to give the court jurisdiction over the property and person of the defendant where he was only constructively served. First Nat'l Bank v. Hartmann, 747 S.W.2d 614, 1988 Ky. App. LEXIS 12 (Ky. Ct. App. 1988).

8.Specific Appearance.

There is considerable authority that a defendant not properly served so as to give jurisdiction over his person, may appear specifically to attack validity of an attachment or foreclosure, without appearing so as to submit himself to the court’s jurisdiction in personam. Cann v. Howard, 850 S.W.2d 57, 1993 Ky. App. LEXIS 20 (Ky. Ct. App. 1993).

Cited:

Hartford Fire Ins. Co. v. Green, 282 Ky. 466 , 138 S.W.2d 933, 1940 Ky. LEXIS 178 ( Ky. 1940 ).

Research References and Practice Aids

Kentucky Law Journal.

Hammond, Service by Publication, 31 Ky. L.J. 174 (1943).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Nonresident Defendant, Form 150.02.

454.170. Substitution of affirmation for oath.

An oath required by any statute derived from the former Civil Code, or by the Rules of Civil Procedure may be substituted by the affirmation of a person who is conscientiously opposed to taking an oath.

History. C. C. 680: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

Cited:

Gaines v. Commonwealth, 728 S.W.2d 525, 1987 Ky. LEXIS 196 ( Ky. 1987 ).

Research References and Practice Aids

Cross-References.

Affirmation in lieu of oath, CR 43.11.

454.175. Execution of new bond for defective one.

If a bond provided for by any statute derived from the former Civil Code, or by the Rules of Civil Procedure be adjudged to be defective, a new and sufficient one may be executed in such reasonable time as the court may fix, with the same effect as if originally executed.

History. C. C. 682: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Election Contest.

Where the judgment in an election contest proceeding was appealed to the Court of Appeals, and a motion was made to dismiss the appeal on the ground that the appeal bond was defective, whereupon the appellant tendered a new bond, it was held that this section had no application to an appeal bond given in an election contest. Galloway v. Bradburn, 119 Ky. 49 , 82 S.W. 1013, 26 Ky. L. Rptr. 977 , 1904 Ky. LEXIS 144 ( Ky. 1904 ).

2.Sufficiency of Bond.

Although the bond was not in double the sum of the damages claimed, in view of the provisions of this section, the court properly sustained the attachment inasmuch as the attachment was at most voidable and not void. Bluegrass Canning Co. v. Steward, 175 F. 537, 1909 U.S. App. LEXIS 4941 (6th Cir. Ky. 1909 ).

Where the bond given by a claimant of property which had been levied on in an attachment proceeding contained matters in excess of the requirements of the statute, such excess was treated as mere surplusage. Deposit Bank v. Thomason, 66 S.W. 604, 23 Ky. L. Rptr. 1957 , 1902 Ky. LEXIS 413 (Ky. Ct. App. 1902).

Where a defective or insufficient bond is tendered or taken the court should, on motion of any interested party or on its own motion when the facts are brought to its attention, require a new and sufficient bond, and if the same is not made within a reasonable time to be fixed by the court, the proceedings should be dismissed. Lee v. Phelps, 191 Ky. 219 , 230 S.W. 44, 1921 Ky. LEXIS 304 ( Ky. 1921 ).

Although the amount of attachment bond is required to be double the amount of the plaintiff’s claim, failure of the defendant to complain was held to waive the insufficiency, since under this section the bond could have been amended. Darnell v. Johnston, 209 Ky. 95 , 272 S.W. 381, 1925 Ky. LEXIS 435 ( Ky. 1925 ).

3.Defective Bond.

Where the party, appealing from a quarterly court judgment, and his surety signed their names to a blank paper and authorized the clerk to write a proper appeal bond above their signatures, which the clerk failed to do, the judgment of the Circuit Court dismissing the appeal and refusing to permit the appellant either to fill up the paper as signed or to execute a new bond, was affirmed. Hargis v. Pearce & Son, 70 Ky. 234 , 1870 Ky. LEXIS 39 ( Ky. 1870 ) (decided under prior law).

In an appeal from the judgment of an inferior court to the Circuit Court in a forcible detainer action, where the only surety who signed the bond within three (3) days did so upon a condition, consented to by the county judge, which was never complied with, and the sureties who signed after that time did so without any application having been made to the Circuit Judge to permit additional signatures, there was no valid bond, and a motion to dismiss should have been granted. Slaughter v. Crouch, 64 S.W. 968, 23 Ky. L. Rptr. 1214 , 1901 Ky. LEXIS 562 (Ky. Ct. App. 1901).

Where a bond was taken before an officer who was not authorized to take it and the bond was for this reason void, such bond could not be corrected or amended under this section. Cox v. Allen, 188 Ky. 598 , 222 S.W. 932, 1920 Ky. LEXIS 329 ( Ky. 1920 ).

4.— Originally Tendered.

That the bonds originally tendered were defective will not affect the validity of bonds offered a day or two (2) later. Trivette v. Stratton, 276 Ky. 774 , 125 S.W.2d 236, 1939 Ky. LEXIS 581 ( Ky. 1939 ).

454.180. Officer may require affidavit of surety’s qualifications.

An officer whose duty it is to take a surety in any bond provided for by any statute derived from the former Civil Code, or by the Rules of Civil Procedure may require the person offered as surety to make affidavit of his qualifications, which affidavit may be made before such officer. The taking of such an affidavit shall not exempt the officer from any liability to which he might otherwise be subject for taking insufficient security.

History. C. C. 683: trans. Acts 1952, ch. 84, § 1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Fiduciary Bond (AOC 825), Form 233.04.

454.185. Qualifications of sureties.

The surety in every bond provided for by any statute derived from the former Civil Code, or by the Rules of Civil Procedure must be a resident of this state, and be worth double the sum to be secured beyond the amount of his debts, and have property liable to execution in this state equal to the sum to be secured. If there be two (2) or more sureties in the same bond they must, in the aggregate, have the qualifications prescribed in this section.

History. C. C. 684: trans. Acts 1952, ch. 84, § 1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Fiduciary Bond (AOC 825), Form 233.04.

454.190. Commonwealth may prosecute remedy without bond.

Unless otherwise expressly provided by law, no bond, obligation or security shall be required of the Commonwealth or any of its agencies or officers acting for or in behalf of the Commonwealth in order to prosecute any remedy in the courts of this state.

History. Enact. Acts 1962, ch. 35.

NOTES TO DECISIONS

1.Payment of Damages.

The fact the Commonwealth is not required to execute a bond does not exempt it from liability for payment of damages as provided in KRS 21.130 (repealed). Commonwealth, Dep't of Highways v. Whipple, 392 S.W.2d 81, 1965 Ky. LEXIS 274 ( Ky. 1965 ).

2.Civil Rule.

Civil rule (CR 81A) obligating municipal corporations and political subdivisions as if bond had been posted is not repugnant to this section. Commonwealth, Dep't of Highways v. Whipple, 392 S.W.2d 81, 1965 Ky. LEXIS 274 ( Ky. 1965 ).

Since a school board is a political subdivision of the Commonwealth, no bond is required for it to prosecute any remedy in the courts of Kentucky, and CR 81A obligating the bond as if bond had been posted does not apply to a situation which would work an injustice. International Brotherhood of Firemen & Oilers v. Board of Education, 393 S.W.2d 793, 1965 Ky. LEXIS 245 ( Ky. 1965 ).

454.210. Personal jurisdiction of courts over nonresident — Process, how served — Fee — Venue.

  1. As used in this section, “person” includes an individual, his executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who is a nonresident of this Commonwealth.
    1. A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s: (2) (a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s:
      1. Transacting any business in this Commonwealth;
      2. Contracting to supply services or goods in this Commonwealth;
      3. Causing tortious injury by an act or omission in this Commonwealth;
      4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth, provided that the tortious injury occurring in this Commonwealth arises out of the doing or soliciting of business or a persistent course of conduct or derivation of substantial revenue within the Commonwealth;
      5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when the seller knew such person would use, consume, or be affected by, the goods in this Commonwealth, if he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;
      6. Having an interest in, using, or possessing real property in this Commonwealth, providing the claim arises from the interest in, use of, or possession of the real property, provided, however, that such in personam jurisdiction shall not be imposed on a nonresident who did not himself voluntarily institute the relationship, and did not knowingly perform, or fail to perform, the act or acts upon which jurisdiction is predicated;
      7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;
      8. Committing sexual intercourse in this state which intercourse causes the birth of a child when:
        1. The father or mother or both are domiciled in this state;
        2. There is a repeated pattern of intercourse between the father and mother in this state; or
        3. Said intercourse is a tort or a crime in this state; or
      9. Making a telephone solicitation, as defined in KRS 367.46951, or a charitable solicitation as defined in KRS 367.650 via telecommunication, into the Commonwealth.
    2. When jurisdiction over a person is based solely upon this section, only a claim arising from acts enumerated in this section may be asserted against him.
    1. When personal jurisdiction is authorized by this section, service of process may be made: (3) (a) When personal jurisdiction is authorized by this section, service of process may be made:
      1. In any manner authorized by the Kentucky Rules of Civil Procedure;
      2. On such person, or any agent of such person, in any county in this Commonwealth, where he may be found; or
      3. On the Secretary of State who, for this purpose, shall be deemed to be the statutory agent of such person.
    2. The clerk of the court in which the action is brought shall issue a summons against the defendant named in the complaint. The clerk shall execute the summons either by:
      1. Sending by certified mail two (2) true copies to the Secretary of State and shall also mail with the summons two (2) attested copies of plaintiff’s complaint; or
      2. Transmitting an electronically attested copy of the complaint and summons to the Secretary of State via the Kentucky Court of Justice electronic filing system.
    3. The Secretary of State shall, within seven (7) days of receipt thereof in his office, mail a copy of the summons and complaint to the defendant at the address given in the complaint. The letter shall be posted by certified mail, return receipt requested, and shall bear the return address of the Secretary of State. The clerk shall make the usual return to the court, and in addition the Secretary of State shall make a return to the court showing that the acts contemplated by this statute have been performed, and shall attach to his return the registry receipt, if any. Summons shall be deemed to be served on the return of the Secretary of State and the action shall proceed as provided in the Rules of Civil Procedure.
    4. The clerk mailing the summons to the Secretary of State shall mail to him, at the same time, a fee of ten dollars ($10), which shall be taxed as costs in the action. The fee for a summons transmitted electronically pursuant to this subsection shall be transmitted to the Secretary of State on a periodic basis.
  2. When the exercise of personal jurisdiction is authorized by this section, any action or suit may be brought in the county wherein the plaintiff resides or where the cause of action or any part thereof arose.
  3. A court of this Commonwealth may exercise jurisdiction on any other basis authorized in the Kentucky Revised Statutes or by the Rules of Civil Procedure, notwithstanding this section.

History. Enact. Acts 1968, ch. 46, §§ 1 to 5; 1972, ch. 307, § 3; 1974, ch. 315, § 87; 1976, ch. 27, § 20; 1978, ch. 402, § 7, effective June 17, 1978; 1980, ch. 114, § 107, effective July 15, 1980; 1982, ch. 136, § 1, effective July 15, 1982; 1982, ch. 159, § 5, effective July 15, 1982; 1984, ch. 56, § 1, effective July 13, 1984; 1986, ch. 204, § 13, effective July 15, 1986; 1988, ch. 185, § 3, effective July 15, 1988; 2002, ch. 21, § 9, effective July 15, 2002; 2014, ch. 66, § 1, effective July 15, 2014; 2019 ch. 16, § 1, effective June 27, 2019; 2019 ch. 105, § 5, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 16 and 105, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

This section allows Commonwealth courts to reach the full constitutional limits of due process in the extension of jurisdiction over nonresident defendants. Info-Med, Inc. v. National Healthcare, Inc., 669 F. Supp. 793, 1987 U.S. Dist. LEXIS 12342 (W.D. Ky. 1987 ).

2.Construction.

Although the long-arm statute is to be interpreted broadly, its reach is not unlimited. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

In a state where the long-arm statute has been interpreted by its courts to be as broad as the limits of due process, the court merges the question of how far a state intended to extend its reach into the single question of whether the jurisdiction sought is within the requirements of due process. Kentucky is such a state. First Nat'l Bank v. J. W. Brewer Tire Co., 680 F.2d 1123, 1982 U.S. App. LEXIS 18085 (6th Cir. Ky. 1982 ).

The limits of personal jurisdiction under this section have been interpreted to be coextensive with the boundaries of the due process clause. Bank of Louisville v. California First Bank, 641 F. Supp. 59, 1986 U.S. Dist. LEXIS 30585 (W.D. Ky. 1986 ).

The determination of the reach of this section and the reach of due process are one in the same. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

3.Construction with Other Law.

KRS 452.450 , rather than this section, 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).

Absent some other indication from the state legislature or Kentucky courts on the scope of application of KRS 287.670 (renumbered as KRS 286.2-670 ), the court was bound to apply the statute as posed by the lender and in so doing, it was undisputed that the lending agreement between the borrowers and the lender was negotiated and executed in the state of West Virginia. The borrowers were loaned funds for real estate in Kentucky, which loan was secured by a mortgage lien on the Kentucky property and the borrowers’ payments on the loan were sent to the lender in West Virginia; thus all of these activities appeared to fall within the category of activity described in KRS 287.670 (1) and personal jurisdiction was lacking over the borrowers’ state law breach of contract claim. Jude v. First Nat'l Bank, 259 F. Supp. 2d 586, 2003 U.S. Dist. LEXIS 7350 (E.D. Ky. 2003 ).

Ohio's choice-of-law rules applied to a patient's suit against a dentist, which was transferred from Kentucky to Ohio; the transfer could not have been made under 28 U.S.C.S. § 1404, as there was no basis for personal jurisdiction under Kentucky's long-arm statute, so the transferee court's choice-of-law rules applied. Newberry v. Silverman, 789 F.3d 636, 2015 FED App. 0103P, 2015 U.S. App. LEXIS 8904 (6th Cir. Ohio 2015).

Circuit court erred in denying the motions of the owner and manager of a hotel to set aside a default judgment entered in favor of guest in her personal injury action because the guest did not attempt to serve them either through their respective registered agent or through the Secretary of State pursuant to the long-arm statute instead, she sought service of the registered agents through the Secretary of State, neither company acted culpably with regard to service of the summons and complaint, and both acted almost immediately upon learning of the entry of the default judgment. HP Hotel Mgmt. v. Layne, 536 S.W.3d 208, 2017 Ky. App. LEXIS 767 (Ky. Ct. App. 2017).

4.Application.

No language is found in this section expressing a legislative intent that it be retroactive in its application. Etheridge v. Grove Mfg. Co., 415 F.2d 1338, 1969 U.S. App. LEXIS 11411 (6th Cir. Ky. 1969 ).

This section is applicable to actions commenced subsequent to its effective date, June 13, 1968, and its application is not precluded by the fact that the injury on which suit is based occurred prior to its effective date. Miller v. Trans World Airlines, Inc., 302 F. Supp. 174, 1969 U.S. Dist. LEXIS 9173 (E.D. Ky. 1969 ).

The legislature has authorized the Kentucky courts to reach to the full constitutional limits in entertaining jurisdiction over nonresident defendants. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

The application of this section was not precluded by the fact that the injury to the claimant on which action was based occurred before its effective date, June 13, 1968, when such action was filed subsequent to the effective date. Rose v. E. W. Bliss Co., 516 S.W.2d 329, 1974 Ky. LEXIS 92 ( Ky. 1974 ).

The fact that defendant wrote two (2) letters to plaintiff in an attempt to settle an automobile repair bill arising from an accident outside the state was not sufficient to confer personal jurisdiction over defendant on the court since the claim did not arise from the letters but from the accident preceding them. Bowen v. Eastside Jersey Dairy, 521 S.W.2d 822, 1975 Ky. LEXIS 161 ( Ky. 1975 ).

The Circuit Court in county of plaintiff’s residence had proper venue of the action against a foreign corporation, which had carried on regular business in Kentucky and had designated a process agent, in conformity with KRS 271.385 (now repealed), where the service of process was obtained under this section, and there is nothing in the words of subsection (4) of this section that confine its venue provisions to cases in the extended scope of jurisdiction over foreign corporations with minimum contacts in the state even though other methods of obtaining jurisdiction were available. Ford Motor Credit Co. v. Nantz, 516 S.W.2d 840, 1974 Ky. LEXIS 172 ( Ky. 1974 ).

The application of this section to confer jurisdiction over Volvo manufacturer distributor where particular automobile causing injury to Kentucky resident was purchased in West Virginia is constitutional inasmuch as distributor advertised in Kentucky, stated that its dealers were authorized to service automobiles in Kentucky and, presumably, derived substantial profits from the sale of Volvos in Kentucky. Volvo of America Corp. v. Wells, 551 S.W.2d 826, 1977 Ky. App. LEXIS 708 (Ky. Ct. App. 1977).

A federal District Court, in determining whether an exercise of long-arm jurisdiction over a nonresident defendant is authorized, must first consider the law of the state in which it is sitting and if the state long-arm statute would extend the jurisdictional reach of its courts to the nonresident defendant, the court must then inquire whether this extension of jurisdiction is consistent with due process. Clay v. Hopperton Nursery, Inc., 533 F. Supp. 476, 1982 U.S. Dist. LEXIS 11036 (E.D. Ky. 1982 ).

The Kentucky long arm statute (this section) is intended to reach to the limit permitted by the Constitution; thus, the phrase “arising from . . . . . transacting any business” in subdivision (2)(a)1 of this section should be construed in favor of personal jurisdiction unless to do so would violate the defendant’s constitutional right to due process. Handley v. Indiana & Michigan Electric Co., 732 F.2d 1265, 1984 U.S. App. LEXIS 23120 (6th Cir. Ky. 1984 ).

This section was applicable to determine the proper exercise of jurisdiction in an action under the Warsaw Convention. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

While the contract between salesman and company may have been negotiated and executed in Indiana, salesman was asked to come to Indiana to negotiate the agreement. Much of salesman’s activities were carried on in Kentucky, as well as the other five (5) states in his territory. The agreement contained no choice of law clause. Therefore, the company met the three-pronged test which determines the outer limits of personal jurisdiction, by directing the representative relationship. It was not unreasonable to think that company could be hauled into court in Kentucky over the sales representative agreement. The trial court properly exercised personal jurisdiction under this section. Friction Materials Co. v. Stinson, 833 S.W.2d 388, 1992 Ky. App. LEXIS 139 (Ky. Ct. App. 1992).

When a trust beneficiary sued a nonresident trustee for various claims both in the trustee’s capacity as trustee and in the trustee’s capacity as an attorney, fair play and substantial justice were not offended by the exercise of personal jurisdiction over the trustee regarding claims against the trustee in the trustee’s capacity as trustee because the burden of litigating those claims in Kentucky, in addition to the claims against the trustee as an attorney, over which the trustee admitted Kentucky could exercise personal jurisdiction, did not outweigh Kentucky’s interest in providing a forum for its citizens, or the judicial system’s substantial interest in the efficient resolution of controversies in one forum. Cummings v. Pitman, 239 S.W.3d 77, 2007 Ky. LEXIS 242 ( Ky. 2007 ), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

CR 60.02(e) motion to set aside prior orders and judgments in a dissolution action was improperly denied because appellant former husband, who lived in Texas, was only constructively served and, thus, a personal judgment against him was void under KRS 454.165 . Personal jurisdiction was not obtained under KRS 454.210 , the long-arm statute, or KRS 407.520(5) as any child support payments made by the father did not conform to the family court order and thus did not seem to be at the family court’s directive. Soileau v. Bowman, 382 S.W.3d 888, 2012 Ky. App. LEXIS 222 (Ky. Ct. App. 2012).

Graduate student’s actions and employment with the Commonwealth was sufficient to establish personal jurisdiction, KRS 454.210(2)(a)(1)-(3), and her actions created a reasonable and direct nexus between the wrongful acts alleged and the statutory predicate of long-arm jurisdiction. Norton v. Perry, 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013), review denied, ordered not published, 2013 Ky. LEXIS 667 (Ky. Dec. 11, 2013), review denied, ordered not published, 2013 Ky. LEXIS 660 (Ky. Dec. 11, 2013).

Trial court erred in finding it unreasonable to a enforce forum selection clause and declining to exercise jurisdiction pursuant to Ky. Rev. Stat. Ann. § 454.210 where it mentioned only one item, minimal state interest, in declining to enforce the venue clause, but offered no basis for its conclusion. Moreover, the out-of-state nonprofit was aware of the selection clause’s inclusion at the time of execution and willingly agreed to it, Kentucky had a strong public interest in ensuring parties abided by their bargains, and witnesses could be deposed, thereby eliminating expensive travel to a foreign courtroom. Aries Entm't, LLC v. The Puerto Rican Ass'n for Hispanic Affairs, Inc., 2019 Ky. App. LEXIS 203 (Ky. Ct. App. Nov. 15, 2019).

Twitter users’ conduct was plainly outside the scope of the Kentucky longarm statute, since neither user committed any act in the Commonwealth of Kentucky, and their users did not direct their tweets into the state; there were no cases in which Kentucky or a court applying Kentucky law had extended personal jurisdiction under the statute to a nonresident defendant who acted outside the forum, even where harmful consequences occurred inside the forum. Blessing v. Chandrasekhar, 988 F.3d 889, 2021 FED App. 44P, 2021 U.S. App. LEXIS 5222 (6th Cir. Ky. 2021 ).

4.5.Statutory Person.

Sheriff’s department was a statutory person pursuant to the statute. Hughes v. Haas, 413 S.W.3d 315, 2013 Ky. App. LEXIS 179 (Ky. Ct. App. 2013).

5.Purpose.

The purpose of this section is to ensure that Kentucky courts comply with federal constitutional requirements of due process before asserting personal jurisdiction over nonresident defendants. Texas American Bank v. Sayers, 674 S.W.2d 36, 1984 Ky. App. LEXIS 504 (Ky. Ct. App. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1180, 84 L. Ed. 2d 328, 1985 U.S. LEXIS 903 (U.S. 1985).

6.Alternate Methods of Service.

This section and KRS 271A.565 (repealed) are alternate methods of obtaining personal service, and the availability of a statutory agent within the state does not prevent the use of the Secretary of State as a designated agent for service of process in order to obtain personal jurisdiction. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

There is no conflict between this section, the long-arm statute, and KRS 271A.565 (repealed), Service of Process on a Foreign Corporation, and one (1) statute is not preferred over the other. Each confers personal jurisdiction. There is no contradiction or conflict between them and their methods of obtaining the desired result, the service of process on nonresidents. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

Personal jurisdiction is authorized under this section, even though other methods of obtaining jurisdiction may be available. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

In action against corporation, where there was evidence in the form of an affidavit of the Secretary of State that he had placed in the mail a summons and a copy of the complaint and that no receipt or returned mail was ever received by him, and where there was no affidavit or even suggestion from the corporation indicating that the summons and complaint was not received in the mail, personal jurisdiction was conferred through the long-arm statute, even though the corporation had a registered and available statutory agent for process at all times within the state. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

Personal jurisdiction was conferred through the long-arm statute on corporation against whom a default judgment was entered when no answer was filed, even though the corporation had a registered and available statutory agent for process at all times within the state. Contention by corporation that its misinterpretation of the law of service amounted to excusable neglect for purposes of relief from the default judgment was not convincing where the corporation’s argument was never based on real excusable neglect or a meritorious defense to the complaint. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

Where Kentucky and Florida aircraft purchasers alleged that a Canadian airplane company misled them about the engine warranties, specific personal jurisdiction existed as to the Kentucky purchaser’s claims because, inter alia, the distributor’s employee’s communications into Kentucky allegedly contained actionable statements, and there was sufficient support for a prima facie finding that the employee acted with apparent authority and was legally the airplane company’s agent when the employee made the representations; however, personal jurisdiction did not exist as to the Florida purchaser’s claims. Morris Aviation, LLC v. Diamond Aircraft Indus., 730 F. Supp. 2d 683, 2010 U.S. Dist. LEXIS 74989 (W.D. Ky. 2010 ), aff'd, 536 Fed. Appx. 558, 2013 FED App. 802N, 2013 U.S. App. LEXIS 18203 (6th Cir. Ky. 2013 ).

Personal jurisdiction over the operators of a casino gambling boat docked in Indiana was not permitted under Kentucky’s long-arm statute, KRS 454.210 , because there was no reasonable nexus between the alleged negligent conduct that caused a Kentucky resident’s injury from slipping on butter on the boat and the operators’ business activities in Kentucky. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

7.Constructive Service.

Constructive service via warning order attorney will not subject nonresidents to personal judgment; constructive service is sufficient merely to confer jurisdiction quasi in rem. Dalton v. First Nat'l Bank, 712 S.W.2d 954, 1986 Ky. App. LEXIS 1165 (Ky. Ct. App. 1986).

8.Receipt of Service.

A signed, returned receipt is not necessary from the addressee as part of the return by the Secretary of State under subsection (3)(b) of this section, for the words “if any” emphasize the fact that recovery of a signed, returned receipt is not vital to the completion of service pursuant to the long-arm statute. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 1985 Ky. LEXIS 302 ( Ky. 1985 ).

Appellate court erred in reversing a trial court’s denial of a physician’s motion to set aside a default judgment because the trial court did not abuse its discretion in finding the physician did not establish good cause to set the judgment aside, as the physician avoided service of process by refusing to accept certified mail from the Kentucky Secretary of State, when he had business contacts in Kentucky and a contract for goods and services with a Kentucky entity, such that he was served, as an affirmative action taken to avoid service of process was abusive of the system and fell short of good cause. VerraLab JA LLC v. Cemerlic, 584 S.W.3d 284, 2019 Ky. LEXIS 372 ( Ky. 2019 ).

9.Procedures.

Where the record contains an affidavit by appellees’ attorney but does not contain the return of the secretary of state, nor the return receipt acknowledging receipt of the notification and third party complaint by the nonresident defendant, and such documents were not designated to be a part of the record on appeal, the appellate court must conclude that the trial court was correct in stating that the provisions of this section had been met. Barnett v. Stewart Lumber Co., 547 S.W.2d 788, 1977 Ky. App. LEXIS 638 (Ky. Ct. App. 1977).

Where, in dismissing the action on the basis of lack of jurisdiction over the persons and subject matter, the trial court relied on the parties’ affidavits which, rather than resolving the conflict of facts they contained, merely emphasized the ultimate conflict of fact that existed regarding minimum contacts, an evidentiary hearing at which proof could have been presented to resolve the affidavit conflicts should have been held to enable the trial court to have an evidentiary basis for its resolution of the conflicts. Berthelsen v. Kane, 759 S.W.2d 831, 1988 Ky. App. LEXIS 174 (Ky. Ct. App. 1988).

10.Actual Notice.

Accepting that in personam jurisdiction can be acquired without actual notice to a defendant does not a fortiori create a rule that a showing of no actual notice may not constitute good cause sufficient to warrant the setting aside of a default judgment, and where the case is a simple one-on-one action for debt, a trial judge would be hard pressed to refuse to set aside a default judgment if he were truly convinced that the movant had no actual notice in fact and was possessed of an arguably meritorious defense. Cox v. Rueff Lighting Co., 589 S.W.2d 606, 1979 Ky. App. LEXIS 482 (Ky. Ct. App. 1979).

Actual notice is not required to effectuate good service under a long arm statute insofar as due process considerations are concerned. Cox v. Rueff Lighting Co., 589 S.W.2d 606, 1979 Ky. App. LEXIS 482 (Ky. Ct. App. 1979).

11.Minimum Contacts Formula.

When a state legislature authorizes in personam jurisdiction over a nonresident defendant, that jurisdiction must be consistent with due process as delineated in the “minimum contacts” formula of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 1945 U.S. LEXIS 1447, 161 A.L.R. 1057 (1945), and its progeny. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

The legislature, in enacting this section, intended to extend the permissible scope of jurisdiction over foreign corporations with minimal contacts in Kentucky, which previously could have been sued in Kentucky courts only in a cause of action arising out of or connected with the doing of business by such corporation in Kentucky. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

Where a physician limited his professional treatment of plaintiff patient and his other professional activities to Ohio, except for a telephone directory listing distributed in Kentucky and occasional telephone calls made to patients there, there were insufficient minimum contacts to serve as a basis of personal jurisdiction over him. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

Incidental telephone calls from outside a forum state into the forum state are insufficient contacts to be the basis of an exercise of personal jurisdiction; accordingly, where a surgeon performed surgery on a Kentucky resident in Ohio, and made several telephone calls to her in Kentucky regarding her pregnancy, an abortion and hemorrhaging, those telephone calls were incidental to the surgery and did not form the basis for personal jurisdiction on the surgeon. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

Where a breach of contract action was brought against a company with its principal place of business in Kentucky and against several nonresident individual guarantors of the supply contract, in personam jurisdiction was constitutionally exercised in Kentucky over the individual guarantors since they were all shareholders and officers of the Kentucky business and each had signed as personal guaranties on the contract to be performed in Kentucky. National Can Corp. v. K Beverage Co., 674 F.2d 1134, 1982 U.S. App. LEXIS 20470 (6th Cir. Ky. 1982 ).

Where a breach of contract action was brought against a company with its principal place of business in Kentucky and against several nonresident individual guarantors of the supply contract, in personam jurisdiction was constitutionally exercised in Kentucky over two (2) wives of the guarantor shareholders of the Kentucky business, because the wives had an economic interest in the company through their marital rights in their husbands’ property and the wives had also signed as personal guaranties on the contract. National Can Corp. v. K Beverage Co., 674 F.2d 1134, 1982 U.S. App. LEXIS 20470 (6th Cir. Ky. 1982 ).

Where a dispute arose out of a substantial business contract between a Utah corporation and a Kentucky corporation involving the Utah corporation’s purchase of trailer loads of tires every two (2) months for four (4) years, and evidence showed two (2) business visits made by Utah corporation’s personnel to Kentucky and a series of sales transactions over several years leading to various adjustments of the parties’ purchase orders, indicating an active rather than passive buyer, and telephone calls, purchase orders, invoices, bills of lading, and other documents and transactions provided physical contacts with Kentucky, Utah corporation’s conduct being such that it could reasonably anticipate being hauled into court in Kentucky, in personam jurisdiction was established over the Utah corporation in Kentucky. First Nat'l Bank v. J. W. Brewer Tire Co., 680 F.2d 1123, 1982 U.S. App. LEXIS 18085 (6th Cir. Ky. 1982 ).

When a resident manufacturer and a nonresident business entity engage in interstate business transactions with each other in which the nonresident places orders with the resident and the resident manufactures the product and ships it to the nonresident, each of them has transacted business in both states. The fact that this relationship has continued over an extended period of time and has involved substantial amounts of money will, in itself, satisfy the “minimum contacts” test, unless there is a showing of other factors which would affect the balancing of equities and make the exercise of jurisdiction over the nonresident fundamentally unfair. First Nat'l Bank v. Shore Tire Co., 651 S.W.2d 472, 1982 Ky. App. LEXIS 292 (Ky. Ct. App. 1982).

Where a resident tire seller brought an action to collect on delinquent accounts from nonresident purchasers, and the facts showed that the business relationship with each of the purchasers consisted of a series of transactions over a period of more than one (1) year involving total dollar values with each purchaser ranging from $12,000 to over $390,000, there was no question that each of the purchasers had intentionally and purposely availed itself of the privilege of placing substantial business orders in Kentucky so as to make the exercise of jurisdiction over them by Kentucky courts reasonable, despite the fact that none of the purchasers had ever maintained an office of any type in Kentucky for the purpose of transacting business, nor had any of them sent employees or agents into Kentucky to negotiate contracts or solicit business. First Nat'l Bank v. Shore Tire Co., 651 S.W.2d 472, 1982 Ky. App. LEXIS 292 (Ky. Ct. App. 1982).

Where a nonresident corporation carries on substantial and more or less continuous business within a state it should reasonably expect to be required to defend actions in the courts of that state. A federal court should be able to compel a corporate defendant which has availed itself of the privilege of transacting business in the forum state to submit to its jurisdiction in cases brought pursuant to federal law; to hold otherwise would be to diminish the effectiveness of legislation having national scope. Handley v. Indiana & Michigan Electric Co., 732 F.2d 1265, 1984 U.S. App. LEXIS 23120 (6th Cir. Ky. 1984 ).

The guaranteeing of a signature by a foreign bank was insufficient to satisfy the minimum contacts test of due process. Bank of Louisville v. California First Bank, 641 F. Supp. 59, 1986 U.S. Dist. LEXIS 30585 (W.D. Ky. 1986 ).

Where the defendant acted within this Commonwealth and engaged in a substantial air transportation business, from which business this action arose, such actions constituted minimum contacts with this Commonwealth. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

The court erred by finding that Kentucky could validly exercise personal jurisdiction over nonresident Tennessee insurance company under the long-arm statute because insureds’ claims were based on a contract between Tennessee residents, with the only connection between insurer and Kentucky being that its Tennessee insureds were involved in an accident in Kentucky. In short, the minimum contacts test necessary to confer jurisdiction on Kentucky courts pursuant to this section was not satisfied by the mere fact that the accident occurred in Kentucky. Tennessee Farmers Mut. Ins. Co. v. Harris, 833 S.W.2d 850, 1992 Ky. App. LEXIS 132 (Ky. Ct. App. 1992).

Foreign company which was never present in Kentucky, did not solicit the contract with the Kentucky company that was the basis of the parties’ dispute, and could not foresee being sued in Kentucky, was not subject to suit in Kentucky because of the amount of money it agreed to pay the Kentucky company, as that amount might never make it to Kentucky. Franklin Roofing, Inc. v. Eagle Roofing & Sheet Metal, Inc., 61 S.W.3d 239, 2001 Ky. App. LEXIS 1163 (Ky. Ct. App. 2001).

Existence of a parent-subsidiary relationship alone was not enough to confer jurisdiction over the parent corporation where the evidence did not show the parent corporation taking actions in Kentucky under its own name. Martin v. S. Ind. Treatment Ctr., Inc., 2004 U.S. Dist. LEXIS 15293 (W.D. Ky. May 27, 2004).

Kentucky could properly exercise personal jurisdiction over a trustee because the trustee purposefully availed himself of the privilege of acting in Kentucky by engaging in significant acts in Kentucky and creating continuing obligations to Kentucky residents, when the trustee executed the trust instrument, advised the trust’s settlor and the executor of the settlor’s decedent’s estate, who were or had been Kentucky residents, and disbursed trust income to beneficiaries in Kentucky. Cummings v. Pitman, 239 S.W.3d 77, 2007 Ky. LEXIS 242 ( Ky. 2007 ), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

Financial product corporation and a related individual were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal for lack of personal jurisdiction of a suit by Kentucky investors for fraud, conspiracy, and commercial bribery; the defendant’s had the requisite minimum contacts with Kentucky for purposes of KRS 454.210 because they purposefully availed themselves of the privilege of causing a consequence in Kentucky through their e-mails, phone calls, mailings, and personal solicitations. Kerman v. Chenery Assocs., 2007 U.S. Dist. LEXIS 60258 (W.D. Ky. Aug. 14, 2007).

Kentucky jurisdiction over a company that overhauled the engine of an aircraft involved in a crash was proper under the Due Process Clause and KRS 454.210 because the company maintained sufficiently systematic contacts with Kentucky to justify the exercise of general jurisdiction, and the three-prongs of personal jurisdiction test were met as the delivery of the plane to Kentucky by a company employee after the engine was overhauled was a sufficient contact with Kentucky to justify jurisdiction, the crash in Kentucky arose from the company’s delivery of an allegedly defective airplane to a Kentucky buyer at a Kentucky airport, and the exercise of jurisdiction would be reasonable. Crouch v. Honeywell Int'l, Inc., 682 F. Supp. 2d 788, 2010 U.S. Dist. LEXIS 7348 (W.D. Ky. 2010 ).

In appellant properly owners’ action challenging a nomination to the National Register of Historic Places, long-arm jurisdiction could be exercised over a New Jersey resident because that individual was a University of Kentucky graduate student when she allegedly trespassed on the owners’ property as part of her thesis and to obtain information for the nomination; the individual also worked for a Kentucky heritage commission. Norton v. Perry, 2012 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 12, 2012).

12.Burden of Proof.

When a court rules on a challenge to personal jurisdiction after hearing evidence, as opposed to considering a motion supported by an affidavit, the plaintiff’s burden is to demonstrate the existence of facts supporting jurisdiction by a preponderance of the evidence. Handley v. Indiana & Michigan Electric Co., 732 F.2d 1265, 1984 U.S. App. LEXIS 23120 (6th Cir. Ky. 1984 ).

13.Consent.

Nonresident Tennessee insurer did not consent to the jurisdiction of the Kentucky court by sending a letter to its attorney stating that “[w]e consent to your filing suit . . . . . but our obligation to pay any judgment is determined by the terms and provisions of the policy and any applicable statutes.” There was simply nothing in this letter whereby insurer agreed to submit itself to the jurisdiction of the Kentucky courts. Tennessee Farmers Mut. Ins. Co. v. Harris, 833 S.W.2d 850, 1992 Ky. App. LEXIS 132 (Ky. Ct. App. 1992).

Trial court erred in finding it was unreasonable to enforce a choice of forum clause in contracts and in declining to exercise jurisdiction because the court’s reliance on the long-arm statute was in error. By signing the contracts a Florida nonprofit corporation consented to being sued in a circuit court of Kentucky using Kentucky law and the court was to convene an evidentiary hearing to determine whether the choice of forum clause contained in the contracts was unfair or unreasonable in concluding whether the clause was enforceable. Aries Entm't, LLC v. Puerto Rican Ass'n for Hispanic Affairs, Inc., 591 S.W.3d 850, 2019 Ky. App. LEXIS 171 (Ky. Ct. App. 2019).

14.Change of Residence.

Kentucky courts have the power to exercise in personam jurisdiction over persons who were residents of Kentucky when a claim arose and who became nonresidents prior to the filing of a suit against them. Conley v. Sousa, 554 S.W.2d 87, 1977 Ky. LEXIS 486 ( Ky. 1977 ).

15.Transacting Any Business.

The defendant’s actions in conducting its air transportation business constituted “transacting any business” in this Commonwealth, the defendant’s contract was clearly intended to be performed, in part, in this Commonwealth, and the plaintiffs’ claims were based upon the relationships and obligations formed as a consequence of the defendant’s conduct of its air transportation business in this Commonwealth; therefore, the claims against the defendant fell within the literal reach of this section. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

Although it was necessary for Tennessee insurance company’s adjuster to come to Kentucky after a loss occurred before effecting a settlement of the Tennessee collision damage claim, this did not amount to the transaction of business in Kentucky for purposes of exercising personal jurisdiction pursuant to this section. Tennessee Farmers Mut. Ins. Co. v. Harris, 833 S.W.2d 850, 1992 Ky. App. LEXIS 132 (Ky. Ct. App. 1992).

District Court could not exercise personal jurisdiction over nonresident defendants because they had not purposefully availed themselves of the benefits of transacting business in Kentucky, which was necessary to comport with due process and was required for long-arm jurisdiction under KRS 454.210(2)(a): (1) the parties’ negotiations concerning defendants’ consulting contract occurred out of state; (2) the services that defendants provided were provided outside of Kentucky; (3) defendants did not solicit business in Kentucky and did not conduct any on-going business activities there; and (4) the main contact between the suit and the forum was the fact that plaintiff resided in Kentucky, which was not sufficient by itself to give the court personal jurisdiction over defendants. Papa John's Int'l, Inc. v. Entm't Mktg. & Communs. Int'l, Ltd., 381 F. Supp. 2d 638, 2005 U.S. Dist. LEXIS 15617 (W.D. Ky. 2005 ).

Motion to dismiss a Kentucky passenger’s action for uninsured motorist benefits against an Indiana agency and insurer was granted because defendants did not have sufficient contacts with Kentucky to exercise personal jurisdiction over them under KRS 454.210 where the insurer did not do business in Kentucky, the claim sued upon did not arise by virtue of the insurer having transacted business in Kentucky, but because it issued a liability insurance policy in Indiana to an Indiana resident who later married a woman living in Kentucky who happened to sustain a loss in Kentucky, and the fact that defendants were aware that the policy was purchased to cover a vehicle that was registered and garaged in Kentucky was not sufficient. Perkins-Richardson v. Winters Ins. Agency, Inc., 2005 U.S. Dist. LEXIS 19405 (E.D. Ky. Sept. 7, 2005).

Pursuant to KRS 454.210(2)(a)(1), considering the riverboat casino’s close proximity to Kentucky and its heavy reliance on Kentucky patrons, it was not unreasonable for the casino to expect to be haled into court in Kentucky. Ford v. RDI/Caesars Riverboat Casino, LLC, 503 F. Supp. 2d 839, 2007 U.S. Dist. LEXIS 61996 (W.D. Ky. 2007 ).

District court granted Texas defendants’ motion to certify the denial of their motion to dismiss a trademark infringement suit in Kentucky for lack of personal jurisdiction for immediate appeal under 28 U.S.C.S. § 1292(b), because there was a substantial ground for difference of opinion as to whether defendants’ act of sending passwords to Kentucky residents to provide them with online banking services constituted “transacting any business in this Commonwealth” under KRS 454.210(2)(a)(1) for purposes of establishing a prima facie case of personal jurisdiction in Kentucky. Cmty. Trust Bancorp, Inc. v. Cmty. Trust Fin. Corp., 2011 U.S. Dist. LEXIS 57530 (E.D. Ky. May 24, 2011).

Trial court properly dismissed plaintiff’s claims against defendant for lack of personal jurisdiction under KRS 454.210 because defendant had fully complied with the requirements of Tenn. Code Ann § 55-3-118 in transferring title of the vehicle in question to the driver who struck plaintiff, and it was clear from the record that defendant did not transact business in Kentucky, did not contract to supply goods or services in Kentucky, and did not cause tortious injury by an act or omission in Kentucky. Without question there was no evidence to support a theory that defendant acted in any manner which would subject him to the jurisdiction of a Kentucky Court. Even if the transaction were governed by Kentucky law, defendant would still prevail because the transfer of title was properly completed. Allen v. Jones, 372 S.W.3d 441, 2012 Ky. App. LEXIS 107 (Ky. Ct. App. 2012).

In an investor's suit seeking to rescind a stock purchase, the investor established personal jurisdiction because the company transacted business in Kentucky since two former officers, acting with apparent authority, traveled to the Commonwealth, met with the investor, a Kentucky resident, in Kentucky, and, bearing the company's business cards and its subscription agreement, sold the investor stock and mailed a stock certificate to his Kentucky home, and the investor's claims were based on allegedly fraudulent statements and omissions made at the same meeting, the claims arose from the company's transacting business in Kentucky. Muncy v. InterCloud Sys., 92 F. Supp. 3d 621, 2015 U.S. Dist. LEXIS 29741 (E.D. Ky. 2015 ).

In an investor's suit seeking to rescind a stock purchase, where the investor established personal jurisdiction because the company transacted business in Kentucky and the claims arose from this business transaction, the exercise of jurisdiction was reasonable and comported with due process because the company purposely availed itself of the privilege of conducting business in Kentucky by transacting business there, the cause of action arose out of the company's Kentucky business, and the company had substantial enough connection with Kentucky such that the exercise of jurisdiction was reasonable. Muncy v. InterCloud Sys., 92 F. Supp. 3d 621, 2015 U.S. Dist. LEXIS 29741 (E.D. Ky. 2015 ).

In a negligence case in which a trucking company moved to dismiss, personal jurisdiction could not be exercised over the company under Kentucky's long-arm statute, Ky. Rev. Stat. Ann. § 454.210(2)(a); the estate administrator's claim did not arise from the company's Kentucky activities, which was the sending of a passenger authorization form. Wilson v. Hirschbach Motor Lines, Inc., 2015 U.S. Dist. LEXIS 46413 (E.D. Ky. Apr. 9, 2015).

15.5.—Internet Sales.

One vehicle sales transaction over an Internet auction site sufficient to bring the car seller, a Missouri resident, within Kentucky’s long-arm jurisdiction, KRS 454.210(2)(a)(2), because the transaction provided for the supplying of services or goods to be transported into, consumed, or used in Kentucky given that the sale was to the car buyer, a Kentucky resident. However, that lone transaction was insufficient to provide the minimum contacts necessary under the federal Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, to confer personal jurisdiction in the Kentucky courts over the car seller, as that contact was too limited to suggest to the car seller that the car seller should anticipate being hauled into the Kentucky courts. Hinners v. Robey, 336 S.W.3d 891, 2011 Ky. LEXIS 39 ( Ky. 2011 ).

Defendants’ provision of online banking services to Kentucky residents subjected them to personal jurisdiction in the court in plaintiff’s trademark infringement action because (1) defendants’ act of sending a password to Kentucky residents to permit them to engage in online banking revealed a specific intention to interact with those customers even after they became Kentucky residents under Kentucky’s long-arm statute, KRS 454.210(2)(a)(1), and KRS 286.2-670 was inapplicable as defendants did more than loan money secured by a mortgage; (2) plaintiff’s cause of action had a substantial connection to defendants’ activities of providing online banking services to Kentucky residents through defendants’ website; and (3) jurisdiction by the court was reasonable. Cmty. Trust Bancorp, Inc. v. Cmty. Trust Fin. Corp., 2011 U.S. Dist. LEXIS 16188 (E.D. Ky. Feb. 17, 2011), rev'd, 692 F.3d 469, 2012 FED App. 0282P, 2012 U.S. App. LEXIS 17853 (6th Cir. Ky. 2012 ).

16.Place of Sale.

Under this section there is no requirement that the goods must have been sold in this Commonwealth. Miller v. Trans World Airlines, Inc., 302 F. Supp. 174, 1969 U.S. Dist. LEXIS 9173 (E.D. Ky. 1969 ).

17.Control Over Subsidiary.

The mere ownership by a corporation of all the stock of a subsidiary which is amenable to the jurisdiction of the state court pursuant to this section, does not in itself subject the parent to the jurisdiction of the court; it must be established that the corporate separateness is fictitious, that the parent has held the subsidiary out as its agent, or that the parent has exercised an undue degree of control over the subsidiary. Miller v. Trans World Airlines, Inc., 302 F. Supp. 174, 1969 U.S. Dist. LEXIS 9173 (E.D. Ky. 1969 ).

In a wrongful discharge action, the defendant corporation licensed to do business in another state was subject to jurisdiction in this Commonwealth even though the plaintiff was an employee of its wholly-owned subsidiary, where the defendant managed all operations of the subsidiary, and the corporate offices of the defendant and the subsidiary were the same. Audiovox Corp. v. Moody, 737 S.W.2d 468, 1987 Ky. App. LEXIS 573 (Ky. Ct. App. 1987).

18.Contracting to Supply Services or Goods.

Where director of alien corporation maintained an office in the state and used stationery giving the state address for the corporation and where a construction contract was mailed to that office, at which place a termination agreement was later negotiated, the alien corporation had minimum contacts with the state so as to subject it to personal jurisdiction for alleged breach of agreement by which the construction contract had been terminated. Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1975 U.S. App. LEXIS 15405 (6th Cir. Ky. 1975 ).

Jurisdiction over a defendant foreign corporation under this section was clearly constitutional where the corporation had license agreements and contracts with Kentucky corporations, had received substantial deposits drawn on Kentucky banks, and where agents of the corporation had made trips to Kentucky and had numerous communications with the plaintiff in Kentucky; all of which acts evidenced a continuing relationship between the corporation and Kentucky. Thermothrift Industries, Inc. v. Mono-Therm Insulation Systems, Inc., 450 F. Supp. 398, 1978 U.S. Dist. LEXIS 18779 (W.D. Ky. 1978 ).

The installation of a dental prosthesis was not a sale of goods which would bring the defendant dentist within the ambit of this section. Jackson v. Wileman, 468 F. Supp. 822, 1979 U.S. Dist. LEXIS 12936 (W.D. Ky. 1979 ).

Where an advertising contract was executed in Kentucky, the great bulk of the material was designed for dissemination in Kentucky and the meeting which induced the breach occurred in Kentucky, the alleged tortious interference in Kentucky of contract rights created and to be performed in Kentucky came within the bounds of subdivision (2) (a) 3 of this section “causing tortious injury by an act or omission in this Commonwealth” and therefore subjected the appellants to the jurisdiction of the court. Carmichael-Lynch-Nolan Advertising Agency, Inc. v. Bennett & Associates, Inc., 561 S.W.2d 99, 1977 Ky. App. LEXIS 889 (Ky. Ct. App. 1977).

It would be unreasonable for Kentucky to exercise jurisdiction over a foreign corporation solely on the basis of negotiations by telephone and mail which culminated in the acceptance of a single order in Louisville. Tube Turns Div. of Chemetron Corp. v. Patterson Co., 562 S.W.2d 99, 1978 Ky. App. LEXIS 469 (Ky. Ct. App. 1978).

Where the defendant nonresident insecticide manufacturer contracted with a Kentucky resident at a trade show in Wisconsin to supply an insecticide to the buyer at the buyer’s nursery in Kentucky, and the manufacturer also agreed to send a representative to Kentucky to supervise the use of the insecticide, subdivision (2)(a)(2) of this section by its express terms authorized a Kentucky court to exercise personal jurisdiction over the manufacturer and exercising that jurisdiction did not offend due process. Clay v. Hopperton Nursery, Inc., 533 F. Supp. 476, 1982 U.S. Dist. LEXIS 11036 (E.D. Ky. 1982 ).

Foreign corporation who contracted with the Department of Education to modify van of quadriplegic and who in action by quadriplegic for breach of express and implied warranties of said contract received service of summons and complaint by registered letter from Secretary of State was subject to jurisdiction of court since it transacted business and contracted to supply goods and services within the state. Commonwealth Dep't of Education v. Gravitt, 673 S.W.2d 428, 1984 Ky. App. LEXIS 476 (Ky. Ct. App. 1984).

Although the defendant airline’s only contact with the Commonwealth was through its contract with other airlines which allowed their travel agencies to sell tickets aboard its carriers, collect the fares, and transmit the fares, minus a commission, to a settlement bank, that contact was sufficient to support personal jurisdiction over the defendant under this section in an action by passengers who lost jewelry from their luggage. Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 1984 Ky. App. LEXIS 573 (Ky. Ct. App. 1984), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

In a breach of contract action where the contract between the plaintiff and the defendants represented a substantial business venture, the defendant created a continuing relationship with the plaintiff as a result of their dealings, and the choice of law provision on each agreement indicated that the defendant purposefully invoked the benefits and protections of this Commonwealth’s laws for jurisdictional purposes, there was a substantial connection with this Commonwealth although the defendants did not have a physical presence in this Commonwealth. Info-Med, Inc. v. National Healthcare, Inc., 669 F. Supp. 793, 1987 U.S. Dist. LEXIS 12342 (W.D. Ky. 1987 ).

In an action for breach of contract, exercise of personal jurisdiction over the defendants was not unreasonable and did not offend the notions of fair play and substantial justice, where the failure of the defendants to honor their contractual commitments would result in a loss of revenue for the plaintiff and might affect the plaintiff’s commitments to its employees and suppliers, the business computer systems were specially designed for the defendants’ particular use, and due to the choice of law provision in both contracts, the defendants apparently recognized that the plaintiff office in this Commonwealth possessed decision-making authority, and the defendants could reasonably foresee being hauled into court in this Commonwealth for breach of their contractual obligations. Info-Med, Inc. v. National Healthcare, Inc., 669 F. Supp. 793, 1987 U.S. Dist. LEXIS 12342 (W.D. Ky. 1987 ).

Personal jurisdiction invoked by the long-arm statute is valid only if the contract is to supply goods and services within the Commonwealth; in this case, the services provided by the sheriff’s department, the use of its facilities, were provided in Indiana, and thus the long-arm statute did not apply, and it was unnecessary for the court to determine whether the contacts were sufficient to provide jurisdiction. Hughes v. Haas, 413 S.W.3d 315, 2013 Ky. App. LEXIS 179 (Ky. Ct. App. 2013).

19.Soliciting Business.

Where foreign corporation, which manufactured gun which injured plaintiff in Kentucky, had an agreement with American firm which acted as sole distributor of its guns in the United States, where such foreign corporation attempted to maximize sales in the United States and was a strong backstage promoter of its products throughout the United States, and where distributor conducted nationwide advertising, had a warehouse and a salesman in Tennessee, sold to a distributor in Lexington, Kentucky, and solicited business in Kentucky through telephone calls and mail order catalogs, the foreign corporation had sufficient contacts with Kentucky in order to bring it within subsection (2)(a)4 and 5 of this section as to doing and soliciting business or engaging in a persistent course of conduct in Kentucky and to bring it within the constitutional limits of due process so that in personam jurisdiction over foreign corporation could be obtained in products liability litigation. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

The mere carrying, in a telephone directory distributed in Kentucky, of the telephone listing a physician practicing in Ohio, without additional advertising or other solicitation, did not amount to regular solicitation of business sufficient to subject the physician to suit in Kentucky. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

The decisions of the Kentucky state courts and Kentucky’s federal courts make clear that the accepted construction of this section is that the advertising by and the actual knowledge of the defendant insecticide manufacturer that the product was to be used in Kentucky is sufficient to make it subject to the long-arm jurisdiction of the courts of this Commonwealth. Clay v. Hopperton Nursery, Inc., 533 F. Supp. 476, 1982 U.S. Dist. LEXIS 11036 (E.D. Ky. 1982 ).

Where in a personal injury action brought against a nonresident insecticide manufacturer, the evidence showed that the manufacturer regularly advertised the insecticide in a trade journal which had nationwide circulation including 152 subscribers in Kentucky, the manufacturer was subject to the in personam jurisdiction of a court in this state because the advertising satisfied the requirement contained in this section of regularly soliciting business. Clay v. Hopperton Nursery, Inc., 533 F. Supp. 476, 1982 U.S. Dist. LEXIS 11036 (E.D. Ky. 1982 ).

There was scant evidence that foreign defendant did business in Kentucky; a financial modeling criteria and contact list sent to plaintiff in Louisville cannot reasonably be characterized as solicitation of business; moreover, the mere fact that Internet users in Kentucky can view advertisements on web pages provided by defendant falls short of demonstrating that defendants advertise in Kentucky. Auto Channel, Inc. v. Speedvision Network, L.L.C., 995 F. Supp. 761, 1997 U.S. Dist. LEXIS 22016 (W.D. Ky. 1997 ), dismissed, 144 F. Supp. 2d 784, 2001 U.S. Dist. LEXIS 6263 (W.D. Ky. 2001 ).

As the lender’s activity was sufficient regular solicitation of business, and the borrowers’ state and federal claim for tortious injury for discriminatory lending practices arose from and was related to the lender’s solicitation of such banking business, the requirements of KRS 454.210(2)(a)(4) were satisfied. Jude v. First Nat'l Bank, 259 F. Supp. 2d 586, 2003 U.S. Dist. LEXIS 7350 (E.D. Ky. 2003 ).

Kentucky court had personal jurisdiction over defendant, a Florida corporation, sued by plaintiff, a Kentucky corporation, for breach of contract where manufacturer’s representative solicited plaintiff’s business on behalf of defendant and where appellate court gave little weight to defendant’s argument that the manufacturer’s representative was not its “agent”; for purposes of jurisdictional analysis, the classification of that individual as a “manufacturer’s representative” or “independent contractor” instead of as an “agent” was less significant than his presence in Kentucky soliciting business on behalf of defendant. Griffin Indus., Inc. v. Turner Envirologic, Inc., 2003 Ky. App. LEXIS 224 (Ky. Ct. App. Sept. 12, 2003).

20.— Internet Sales.

Court lacked personal jurisdiction over a nonresident defendant who sold a vehicle on the Internet to a Kentucky plaintiff. Merely placing the vehicle for auction on the Internet did not alone create personal jurisdiction over defendant under KRS 454.210 . Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

Court lacked personal jurisdiction over a nonresident defendant who sold a vehicle on the Internet to a Kentucky plaintiff. Merely accepting the application for a Kentucky certificate of title/registration did not create personal jurisdiction over defendant under KRS 454.210 . Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

Court lacked personal jurisdiction over a nonresident defendant who sold a vehicle on the Internet to a Kentucky buyer. The fact that the buyer took the vehicle to Kentucky and determined there that it was not as advertised did not create personal jurisdiction over defendant under KRS 454.210 . Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

Court lacked personal jurisdiction over a nonresident defendant who sold a vehicle on the Internet to a Kentucky buyer. There was no evidence that defendant used the Internet through which to sell automobiles on any occasion other than this one; there were insufficient contacts to exercise personal jurisdiction over defendant under KRS 454.210 . Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

Court lacked personal jurisdiction over a nonresident defendant who sold a vehicle on the Internet to a Kentucky buyer. The language in the Internet listing referring to a “1 month/1,000 mile Service Agreement” did not create jurisdiction over defendant under KRS 454.210 . Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

Default judgment against a nonresident seller was void under CR 60.02. The seller’s placement of a vehicle for auction on an Internet sales site did not create personal jurisdiction over the seller under KRS 454.210 ; the transaction was a random, fortuitous, and attenuated contact with Kentucky. Robey v. Hinners, 2009 Ky. App. LEXIS 70 (Ky. Ct. App. May 29, 2009).

21.Use of Independent Distributor.

The use of an independent distributor so that the manufacturer is only indirectly responsible for the product reaching an injured consumer, in and of itself, will not insulate a nonresident foreign corporation from suit. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

22.Signing of Guaranty Agreement.

Defendant’s act of signing the guaranty agreement in Virginia had a substantial enough connection with Kentucky to make personal jurisdiction reasonable as defendant knew that he was guaranteeing loans extended in Kentucky for his son-in-law to acquire an interest in a business in Kentucky, and he also knew that should the son-in-law fail to make payments or if the business venture failed, he would be looked to for payment, and his act of signing the guaranty certainly caused a consequence in Kentucky, because the money would not have been loaned to him had it not been for his signature on the guaranty. Perry v. Central Bank & Trust Co., 812 S.W.2d 166, 1991 Ky. App. LEXIS 36 (Ky. Ct. App. 1991).

23.Torts.

Where a surgeon treated a Kentucky resident in Ohio and the resident then returned to Kentucky, no personal jurisdiction over the surgeon existed, even if he knew that the patient returned to Kentucky while suffering from any ill effects his treatment may have caused her, since the idea that the tortious rendition of medical services is a portable tort which can be deemed to have been committed wherever the consequences foreseeably were felt is wholly inconsistent with public interest in having such services generally available. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

A California partnership lacked minimum contacts with Kentucky under either the statutory requirements of KRS 454.210(2)(a)(4) or the similar due process “effects test.” The California partnership, as the would-be buyer of services, did not conduct regular solicitation of business in Kentucky, and the California partnership’s allegedly fraudulent assent to a confidentiality provision in a contract did not permit a conclusion that it purposefully availed itself of the privilege of causing a consequence in Kentucky. Spectrum Scan, LLC v. AGM California, 519 F. Supp. 2d 655, 2007 U.S. Dist. LEXIS 78210 (W.D. Ky. 2007 ).

Trial court’s dismissal of a patent holder’s infringement claims on grounds that the court lacked personal jurisdiction over the alleged infringers was error as the holder made a prima facie showing of tortious injury by act or omission potentially subjecting the infringers to longarm jurisdiction, including allegations that they had conspired against him to convince a bankruptcy trustee to reopen bankruptcy proceedings based on false allegations of fraud. Afshari v. Mont. Black Gold, 2019 U.S. App. LEXIS 15081 (6th Cir. Ky. May 21, 2019).

Plaintiff had not demonstrated that email communications comparably qualified as more than “mere communications.” In line with the great weight of the relevant case law, defendants’ email communications were not acts or omissions made within Kentucky. Therapies v. Ingenes, 2021 U.S. Dist. LEXIS 76981 (W.D. Ky. Mar. 9, 2021).

24.Place of Injury.

It was reasonable and fair to litigate a products liability action in Kentucky, where a foreign corporation manufactured a dangerous weapon (a gun which is alleged to have made plaintiff a paraplegic), and sold it in the United States through an American distributor, where the tragic injury occurred in Kentucky, but where the foreign corporation was served process under the Kentucky long-arm statute and ignored it, and the jurisdiction of the District Court under the Kentucky long-arm statute was not affected by the fact that the last recorded sale of the gun was made in Tennessee. Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1980 U.S. App. LEXIS 19131 (6th Cir. Ky.), cert. denied, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49, 1980 U.S. LEXIS 2868 (U.S. 1980).

Once there are facts sufficient to support the inference that defendants conduct business in Kentucky, plaintiffs must show that their injuries “arose out of” these activities; where plaintiff’s theories are all rooted in allegations of unfair competition and misappropriation of trade secrets, the wrongful acts giving rise to these claims bear no relationship to any business conducted in Kentucky and jurisdiction is improper. Auto Channel, Inc. v. Speedvision Network, L.L.C., 995 F. Supp. 761, 1997 U.S. Dist. LEXIS 22016 (W.D. Ky. 1997 ), dismissed, 144 F. Supp. 2d 784, 2001 U.S. Dist. LEXIS 6263 (W.D. Ky. 2001 ).

Personal jurisdiction in Kentucky existed when defendants located in Georgia knew, or reasonably could have known, that (1) the alleged hacking concerned information kept on the Kentucky server, (2) the mass e-mails were made to Kentucky residents fraudulently urging them to upgrade their product to what was effectively a separate product, and (3) the redirection of customers from the Kentucky-based website to the defendants’ website would harm company. D.C. Micro Dev., Inc. v. Lange, 246 F. Supp. 2d 705, 2003 U.S. Dist. LEXIS 1624 (W.D. Ky. 2003 ).

As there was no privity of contract between a third-party claimant and a Tennessee insurer in any state, jurisdiction was only appropriate where the claimant lived and where the trauma was felt, and thus specific jurisdiction was appropriate in Kentucky through KRS 454.210(2)(a)(3), because it was where the insurer caused tortious injury by an act or omission since the insurer violated several provisions of Kentucky’s Unfair Claims Settlement Practices Act, KRS 304.12-230 . Tenn. Farmers Mut. Ins. Co. v. Jones, 2008 Ky. App. LEXIS 281 (Ky. Ct. App. 2008).

25.Presence in Commonwealth.

Where the defendant was present in this Commonwealth in connection with negotiations to purchase a medical center, but the plaintiff failed to produce any evidence that its cause of action arose from these activities, and negotiations between the defendant and the center occurred nearly two (2) months after the last purchase order executed by the plaintiff, the defendant’s presence in this Commonwealth for negotiations with representatives of the center could not serve as a basis for personal jurisdiction in an action by the plaintiff against the defendant for breach of contract. Info-Med, Inc. v. National Healthcare, Inc., 669 F. Supp. 793, 1987 U.S. Dist. LEXIS 12342 (W.D. Ky. 1987 ).

Defendant’s personal visits, a few times a year, to friends and family in Kentucky were not contacts of a “continuous and systematic” nature such that Kentucky could maintain personal jurisdiction over her in a matter that was unrelated to her visits. Bell v. Bell, 2005 Ky. App. LEXIS 232 (Ky. Ct. App. Oct. 28, 2005).

26.Exercise of Jurisdiction Unreasonable.

It would be unreasonable to exercise personal jurisdiction over British equipment manufacturer because at no time did manufacturer ever seek to directly distribute its products in Kentucky, it released three (3) of its pieces of equipment to a distributor located in Ohio, to be distributed at distributor’s discretion, and the manufacturer had no contact with any person or entity in this state; therefore, manufacturer does not have substantial enough contacts with Kentucky to make the exercise of jurisdiction over it reasonable. Halderman v. Sanderson Forklifts Co., 818 S.W.2d 270, 1991 Ky. App. LEXIS 56 (Ky. Ct. App. 1991).

The court did not have jurisdiction over individual defendant directors of a foreign corporation in an action under the Kentucky Blue Sky Laws where the plaintiffs asserted that the defendant directors sold stock to them in Kentucky, but did not allege any act to accomplish this, any advertisement in Kentucky, or even that they sold stock or stock options directly to the plaintiffs. Booth v. Verity, Inc., 124 F. Supp. 2d 452, 2000 U.S. Dist. LEXIS 18684 (W.D. Ky. 2000 ).

Kentucky trial court lacked personal jurisdiction over appellant out-of-state insurer in appellee insured’s declaratory judgment suit where the long arm statute, KRS 454.210 , did not confer such jurisdiction because the insurer did not perform any acts listed in the statute and where it would have been patently unfair under due process principles to exercise such personal jurisdiction because the insurer had no minimum contacts with Kentucky, had not purposely availed itself of Kentucky’s laws, and had no reason to anticipate being brought into court there. Nat'l Grange Mut. Ins. Co. v. White, 83 S.W.3d 530, 2002 Ky. LEXIS 161 ( Ky. 2002 ).

Where an estate alleged that the decedent’s former wife would be unjustly enriched if allowed to retain proceeds of the decedent’s life insurance policy, as the suit did not involve the former wife’s conduct in Kentucky, any property located there, or rights arising from Kentucky law, her contacts with that state were too attenuated for it to exercise personal jurisdiction over her. Bell v. Bell, 2005 Ky. App. LEXIS 232 (Ky. Ct. App. Oct. 28, 2005).

Maryland corporation that purchased air filters from a Kentucky corporation was entitled to transfer the seller’s breach of contract diversity action to Maryland because personal jurisdiction over the purchaser was lacking under KRS 454.210 ; there was no showing of a connection to Kentucky which was substantial enough to make the exercise of jurisdiction over the Maryland purchaser reasonable. Clarcor Air Filtration Prods. v. Filter Tech, Inc., 2009 U.S. Dist. LEXIS 5103 (W.D. Ky. Jan. 22, 2009).

In plaintiffs’ action arising out of injuries they sustained when their aircraft crashed, Kentucky jurisdiction over a manufacturer and seller of aircraft parts was improper as there was nothing that was sufficiently substantial, continuous, and systematic to justify the exercise of jurisdiction over it in a case not arising out of its meager connections to the Commonwealth; specifically, the court found that: (1) the manufacturer had no office in Kentucky, was not licensed to do business there, had no Kentucky bank account, and had no Kentucky-based employees; (2) there was no allegation that anyone associated with the manufacturer had ever visited Kentucky; and (3) neither the manufacturer’s maintenance of a website nor its advertisements in national publications were sufficient to justify general jurisdiction. Crouch v. Honeywell Int'l, Inc., 682 F. Supp. 2d 788, 2010 U.S. Dist. LEXIS 7348 (W.D. Ky. 2010 ).

There was no personal jurisdiction over the solicitors because, although they committed telephone solicitation, their alleged actions or the consequences caused by them did not have a substantial enough connection with Kentucky to make the exercise of jurisdiction reasonable under the Fourteenth Amendment and they would endure a substantial burden if forced to defend the action in Kentucky. Perkins v. Bennett, 2013 U.S. Dist. LEXIS 160833 (W.D. Ky. Nov. 12, 2013).

27.Pendent Jurisdiction.

Nothing in the text or history of the Warsaw Convention prohibited the exercise of pendent jurisdiction over corporations which serviced and maintained the airplane which crashed in Newfoundland. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

28.Illustrative Cases.

This section extends the permissible scope of jurisdiction over out-of-state corporations with minimal contacts in Kentucky. Etheridge v. Grove Mfg. Co., 415 F.2d 1338, 1969 U.S. App. LEXIS 11411 (6th Cir. Ky. 1969 ).

In an action for wrongful death arising from an airplane crash in Boone County, Kentucky, a defendant who manufactured certain instruments which were component parts of the aircraft, and whose products were used by all commercial airlines, was subject to service of process under subsection (2)(a)4 of this section, since defendant’s products were used in the Commonwealth and it derived substantial revenue from the sale of the product. Miller v. Trans World Airlines, Inc., 302 F. Supp. 174, 1969 U.S. Dist. LEXIS 9173 (E.D. Ky. 1969 ).

In an action for wrongful death arising from an airplane crash in Boone County, Kentucky, a defendant who manufactured certain instruments which were component parts of the aircraft, and whose products were used by all commercial airlines was subject to service of process under subsection (2)(a)5 of this section, since it must have known that the buyers of its products, airplane manufacturers, would sell airplanes to airlines which would fly into Kentucky, and therefore must have known that plaintiff’s decedent, a flight engineer on the aircraft, would “use, consume or be affected by” the product in Kentucky. Miller v. Trans World Airlines, Inc., 302 F. Supp. 174, 1969 U.S. Dist. LEXIS 9173 (E.D. Ky. 1969 ).

Where a firm engaged in the mail order shipment of firearms maintained neither agents nor a business office within the state, was not incorporated in or licensed to do business in the state, and only sold firearms occasionally within the state as the result of telephone or mail solicitation it was not transacting business in Kentucky under the terms of this section and service of process on it under this section did not grant the court in personam jurisdiction. Bennet v. Cincinnati Checker Cab Co., 353 F. Supp. 1206, 1973 U.S. Dist. LEXIS 15269 (E.D. Ky. 1973 ).

Fairness and due process require that physicians be able to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit; accordingly, where an Ohio physician might have foreseen that his treatment in Ohio of a Kentucky patient might have some indirect effects in Kentucky, but could not reasonably anticipate being hauled into court there, there was no personal jurisdiction over him under this section. Kennedy v. Ziesmann, 526 F. Supp. 1328, 1981 U.S. Dist. LEXIS 16150 (E.D. Ky. 1981 ).

Private trade organization incorporated in Illinois and not licensed in this State but engaged in scheme of certifying people as “certified hearing aid audiologists” and thereby deriving financial benefit was doing sufficient business to grant trial court personal jurisdiction. National Hearing Aid Soc. v. Commonwealth, 551 S.W.2d 247, 1977 Ky. App. LEXIS 716 (Ky. Ct. App. 1977).

A nonresident defendant upon whom process is served pursuant to this section is amenable to the jurisdiction of the courts of this State for a tortious act committed in this State when the defendant was a resident of this State. Johnson v. Smith, 551 S.W.2d 834, 1977 Ky. App. LEXIS 712 (Ky. Ct. App. 1977).

Where an Ohio dentist who fitted plaintiff with a prosthesis in Ohio did not regularly do or solicit business in Kentucky and did not derive substantial revenue in goods used or consumed or services rendered in Kentucky and where it could not be found that the alleged tortious injury caused by the prosthesis occurred in Kentucky, the court had no jurisdiction over the dentist in a malpractice action brought in Kentucky. Jackson v. Wileman, 468 F. Supp. 822, 1979 U.S. Dist. LEXIS 12936 (W.D. Ky. 1979 ).

Where plaintiff’s trailer which was subject of bailment contract was taken to Tennessee where it disappeared, instead of being returned to plaintiffs in Kentucky, plaintiffs had personal jurisdiction in a Kentucky court for a transitory action for breach of contract and over subject matter as well; thus, there was no absence of jurisdiction over the person under this section. Williams v. Indiana Refrigerator Lines, Inc., 612 S.W.2d 350, 1981 Ky. App. LEXIS 221 (Ky. Ct. App. 1981).

Where employer resided in Tennessee and engaged in the business of crushing junked automobiles with a mobile car-crusher, and his employe, who resided in Kentucky, worked for an 11 week period, comprised of two (2) weeks in Kentucky and nine (9) weeks in Tennessee, before being disabled while on the job in Tennessee, the employer’s actions in hiring and working the employee in Kentucky were transactions of business in Kentucky sufficient to satisfy the minimum contacts principle necessary to enable a Kentucky court to exercise personal jurisdiction over a nonresident pursuant to subsection (2)(a)1 of this section, since the employee’s claim arose out of the employer’s transaction of business in Kentucky, with the injury in Tennessee only triggering the claim. Davis v. Wilson, 619 S.W.2d 709, 1980 Ky. App. LEXIS 435 (Ky. Ct. App. 1980).

Where chief stockholder of bank, a resident of Texas conducted extensive business in Kentucky, where the cause of action arose on account of the extensive activities of stockholder in Kentucky and where stockholder’s activities and the consequences caused by him in Kentucky have substantial connection with the state to make the exercise of jurisdiction reasonable, stockholder was subject to jurisdiction of Kentucky courts under this section. Texas American Bank v. Sayers, 674 S.W.2d 36, 1984 Ky. App. LEXIS 504 (Ky. Ct. App. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1180, 84 L. Ed. 2d 328, 1985 U.S. LEXIS 903 (U.S. 1985).

The long-arm statute within this jurisdiction allows Kentucky courts to reach to the full constitutional limits of due process in entertaining jurisdiction over nonresident defendants. In determining the limits of due process, it is necessary to apply the “minimum contacts” test; the test is as follows: (1) has the defendant purposely availed himself of the privilege of acting within the Commonwealth; (2) did the cause of action arise from the defendant’s activity; and (3) does there exist a substantial enough connection to the Commonwealth to make jurisdiction over the defendant reasonable. Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 1984 Ky. App. LEXIS 573 (Ky. Ct. App. 1984), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

This statute does not provide for a two-fold test as to whether a court can acquire long-arm jurisdiction; thus, if a defendant is transacting business within the Commonwealth, it is not also necessary that a tort be committed herein. Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 1984 Ky. App. LEXIS 573 (Ky. Ct. App. 1984), overruled in part, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 2011 Ky. LEXIS 38 ( Ky. 2011 ).

After the recession by the United States to the Commonwealth of the power to serve process on the military base, actions on the military base have had the same effect, so far as submitting to the long arm jurisdiction is concerned, as actions elsewhere within this Commonwealth. In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ).

In action by resident of Missouri against Japanese auto maker for injuries suffered in auto accident that occurred in Germany, where plaintiff failed to allege facts that would permit court to conclude that the injuries arose from any actions of defendant in the forum state or that the acts of the defendant auto maker or the consequences caused by defendant had a substantial enough connection with the forum state to make exercise of jurisdiction over defendant reasonable under the Kentucky long-arm statute (subdivision (2)(a) of this section), transfer of the matter to the Kentucky federal district court was denied. Naegler v. Nissan Motor Co., 835 F. Supp. 1152, 1993 U.S. Dist. LEXIS 15800 (W.D. Mo. 1993).

New York corporation contracting with Regional Airport Authority of Louisville and Jefferson Counties for implementation of an on-site security system and its subcontractor, a New Jersey corporation, were both clearly subject to the jurisdiction of the Western District of Kentucky under subdivision (2)(a) of this section, the applicable long-arm statute of Kentucky. LaCorte Elec. Constr. & Maintenance v. Centron Sec. Sys., 894 F. Supp. 80, 1995 U.S. Dist. LEXIS 11539 (N.D.N.Y. 1995).

An inference that defendant foreign corporation intended to avail itself of the benefits and protection of Kentucky law is supported and jurisdiction was reasonable where defendant contracted to pay almost $170,000 for more than a million sale booklets to be designed and manufactured by a Kentucky corporation at its Kentucky plant, where the contract specifically provided that both title to the finished goods and the risk of loss would pass to defendant in Kentucky, and where defendant consented to have the contract governed by the laws of Kentucky. Gateway Press v. LeeJay, Inc., 993 F. Supp. 578, 1997 U.S. Dist. LEXIS 21973 (W.D. Ky. 1997 ).

In cases in which claims are intimately involved with the substance of patent laws, the United States Court of Appeals for the Federal Circuit looks to the reach of the state long-arm statute and then at whether the assertion of personal jurisdiction would violate due process; the Kentucky long-arm statute is co-extensive with the limits of due process. Thus, the licensee in a breach of license agreement and patent infringement case failed to show that the court’s exercise of personal jurisdiction would be unfair, and therefore the court properly denied the licensee’s Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction. Compass Worldwide, Inc. v. Pinnacle Equip., Inc., 280 F. Supp. 2d 641, 2003 U.S. Dist. LEXIS 14915 (W.D. Ky. 2003 ).

Trial court properly granted summary judgment to defendants, a doctor and a medical group, as to a patient’s medical malpractice action, as the state long-arm statute, KRS 454.210 , did not provide personal jurisdiction; defendants did not have sufficient contacts with Kentucky based on their evaluations of the patient in Missouri, and defendants did not solicit any business or perform any business activities in Kentucky. Powers v. Park, 192 S.W.3d 439, 2006 Ky. App. LEXIS 112 (Ky. Ct. App. 2006).

In an action filed by a Kentucky racetrack owner against a national stock car racing association and a racetrack association in which the Kentucky racetrack owner alleged violations of the Sherman Act, 15 USCS §§ 1 and 2, the racetrack association was not entitled to dismissal of the action based on improper venue or lack of personal jurisdiction under KRS 454.210 ; a substantial part of the events giving rise to the claim occurred in Kentucky for purposes of 28 USCS § 1391(b)(2), and the Kentucky racetrack owner’s allegations were sufficient to meet the “conspiracy” theory of personal jurisdiction. Ky. Speedway, LLC v. NASCAR, 410 F. Supp. 2d 592, 2006 U.S. Dist. LEXIS 4150 (E.D. Ky. 2006 ).

Personal judgment initially entered by a family court in dissolution proceedings against former husband was improper under KRS 454.165 because the former husband, who was a nonresident, was improperly served as the husband was not served via the Secretary of State as required by KRS 454.210(3); thus, personal jurisdiction was not obtained pursuant to KRS 454.220 . Miller v. McGinity, 234 S.W.3d 371, 2007 Ky. App. LEXIS 322 (Ky. Ct. App. 2007).

The vacating of a circuit court’s order declining discretionary personal jurisdiction and remand of the matter for a consideration of whether personal jurisdiction existed was appropriate because the appellate court was not able to determine from the court’s order the legal efficacy of the court’s decision that personal jurisdiction existed. Worrell v. Stivers, 523 S.W.3d 436, 2017 Ky. App. LEXIS 30 (Ky. Ct. App. 2017).

Where a company’s connection to Kentucky was limited to several mineral royalty contracts unrelated to the claims in the case, these contracts, while some contact with the state of Kentucky, were not sufficiently extensive to satisfy the general personal jurisdiction standard of continuous and systematic contact. MSDEnergy, Inc. v. Gognat, 507 F. Supp. 2d 764, 2007 U.S. Dist. LEXIS 64515 (W.D. Ky. 2007 ).

Because the individual at issue was not the sole controller of defendant corporation, plaintiffs had not alleged facts in support of piercing the corporate veil, and primarily because the corporation was not subject to general personal jurisdiction before the court, the court did not have general personal jurisdiction over him. MSDEnergy, Inc. v. Gognat, 507 F. Supp. 2d 764, 2007 U.S. Dist. LEXIS 64515 (W.D. Ky. 2007 ).

Motion to dismiss a products liability claim against a Japanese corporation was denied, because the injured employee had made a minimal, prima facie showing of personal jurisdiction and further discovery was needed to discern the relationship between the Japanese corporation, a distributor, and the employer to discern whether or not that relationship between the entities would provide sufficient facts of a purposeful availment on behalf of the Japanese corporation. Tucker v. Nakagawa Sangyo Japan, 2007 U.S. Dist. LEXIS 65740 (W.D. Ky. Aug. 17, 2007).

Trial court in Kentucky had personal jurisdiction pursuant to KRS 454.210(2)(a) over an Indiana resident who traveled to Kentucky and negotiated a contract with a home theater installer, although the contract was signed in Indiana: the contract was for ongoing goods and services, the cause of action arose from in-state activities, and it was reasonable for the owner to have expected to be sued in Kentucky. Lynn v. Digital Lifestyles, LLC, 2008 Ky. App. LEXIS 364 (Ky. Ct. App. Nov. 14, 2008), review denied, ordered not published, 2009 Ky. LEXIS 133 (Ky. Feb. 11, 2009).

Where a leather hide broker alleged that a company overcharged it and passed along inappropriate expenses to it, the company’s Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction was denied because the act of sending the invoices to the company formed the basis for the claims and it, therefore, purposefully availed itself to the state for long-arm jurisdiction purposes pursuant to KRS 454.210 . The invoices sent to Kentucky were related to the broker’s claims such that the broker’s cause of action arose from the company’s Kentucky contacts; and, moreover, nothing suggested that it would be unfair to exercise jurisdiction over the company. Blue Leather, LLC v. Markowicz, 2008 U.S. Dist. LEXIS 55448 (W.D. Ky. July 18, 2008).

Where a complaint directed the Kentucky Secretary of State to serve process on a corporation at its place of business in Mississauga, Ontario, Canada, pursuant to Kentucky’s Long-Arm Statute, KRS 454.210 , and the Secretary sent the summons and complaint to the corporation via certified (registered) mail, summons was quashed because plaintiff failed to properly serve the corporation. Humble v. Gill, 2009 U.S. Dist. LEXIS 4552 (W.D. Ky. Jan. 21, 2009).

Because a patient engaged Tennessee medical providers to perform medical services in Tennessee, and while the providers discharge orders included administering an overdose of medication, because the providers did not engage in an act or omission in Kentucky, personal jurisdiction could not be exercised under KRS 454.210(2)(a)(3) or (4); therefore, the trial court did not err by dismissing the patient’s medical malpractice claims. Bondurant v. St. Thomas Hosp., 366 S.W.3d 481, 2011 Ky. App. LEXIS 164 (Ky. Ct. App. 2011).

Assertion of personal jurisdiction over a forklift manufacturer violated due process under the Fourteenth Amendment because the manufacturer did not purposefully avail itself of the privilege of acting in Kentucky or causing a consequence in Kentucky under the “stream of commerce plus” formulation since, inter alia, the manufacturer did not control the manner in which the distributor distributed the products, had no control over the pricing, marketing, or advertising of the forklifts, and had no contact with the distributor’s customers. Lindsey v. Cargotec USA, Inc., 2011 U.S. Dist. LEXIS 112781 (W.D. Ky. Sept. 29, 2011).

Exercise of personal jurisdiction over the Canadian manufacturer was permissible under KRS 454.210(2)(a)(2) because the manufacturer, through its distributor, contracted to supply goods in Kentucky. Pursuant to their advertisements, the buyer contacted the distributor to inquire about their products, and eventually purchased a trailer; the buyer’s claim to recover for personal injuries resulting from the use of the trailer, which allegedly had a defective latch and caused a motorcycle accident, bore a reasonable and direct nexus to the contract to supply the trailer. Dierig v. Lees Leisure Indus., 2012 U.S. Dist. LEXIS 26181 (E.D. Ky. Feb. 28, 2012).

Where a franchisor alleged that franchisee corporation owners breached personal guaranties, personal jurisdiction did not exist under Kentucky’s long-arm statute, because the franchisor’s cause of action did not “arise from” the owners’ transaction of business in Kentucky since, inter alia, merely executing personal guaranty agreements outside of Kentucky for restaurants that were not located in Kentucky or owned by Kentucky corporations was not a reasonable and direct nexus between the claims and the owners’ business activity in Kentucky. KFC Corp. v. Wagstaff, 502 B.R. 484, 2013 U.S. Dist. LEXIS 86758 (W.D. Ky. 2013 ).

The vacating of a circuit court's order declining discretionary personal jurisdiction and remand of the matter for a consideration of whether personal jurisdiction existed was appropriate because the appellate court was not able to determine from the court's order the legal efficacy of the court's decision that personal jurisdiction existed. Worrell v. Stivers, 523 S.W.3d 436, 2017 Ky. App. LEXIS 30 (Ky. Ct. App. 2017).

Court lacked personal jurisdiction, because any injury caused by the diagnosis did not arise from the doctor’s connection to Kentucky, and Kentucky specifically refused to exercise personal jurisdiction when a Kentucky plaintiff alleged a nonresident physician committed malpractice at an out-of-state hospital. Evans v. Brown, 2019 U.S. App. LEXIS 36366 (6th Cir. Ky. Dec. 6, 2019).

Although the estate served its initial complaint on the Secretary of State’s office, such service was subject to Ky. Rev. Stat. Ann. § 454.210(3)(c), under which an additional mailing to the nonresident defendant was required, implicating the provisions of the Hague Convention; thus, the estate was obligated to comply with the Hague Convention to effect complete service on the nonresident defendant, and since it did not, the trial court properly quashed the initial service of process on him. Savage v. Allstate Ins. Co., 2021 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 15, 2021).

Denial of a judgment creditor’s motion for summary judgment and confirmation of a foreign judgment from Nova Scotia in Kentucky was appropriate because the factors determining personal jurisdiction in Nova Scotia weighed more heavily in favor of the judgment debtor. The judgment debtor executed the promissory notes in the United States, never set foot in Nova Scotia, and did not do business in Nova Scotia, while any evidence regarding the execution of the notes seemed to be in the United States. Diadan Holdings, Ltd v. Driscoll, 619 S.W.3d 86, 2021 Ky. App. LEXIS 15 (Ky. Ct. App. 2021).

Cited:

Asher v. Bishop, 482 S.W.2d 769, 1972 Ky. LEXIS 205 ( Ky. 1972 ); Miller v. Davis, 507 F.2d 308, 1974 U.S. App. LEXIS 5885 (6th Cir. Ky. 1974 ); American Commercial Lines, Inc. v. Ostertag, 582 S.W.2d 51, 1979 Ky. App. LEXIS 411 (Ky. Ct. App. 1979); Johnson v. Cormney, 596 S.W.2d 23, 1979 Ky. App. LEXIS 521 (Ky. Ct. App. 1979); Commonwealth ex rel. Stephens v. National Steeplechase & Hunt Asso., 612 S.W.2d 347, 1981 Ky. App. LEXIS 220 (Ky. Ct. App. 1981); Field v. Evans, 675 S.W.2d 3, 1983 Ky. App. LEXIS 370 (Ky. Ct. App. 1983); Citizens Bank & Trust Co. v. Collins, 762 S.W.2d 411, 1988 Ky. LEXIS 72 ( Ky. 1988 ); KFC Corp. v. Lilleoren, 783 F. Supp. 1022, 1992 U.S. Dist. LEXIS 1228 (W.D. Ky. 1992 ); Wright v. Sullivan Payne Co., 839 S.W.2d 250, 1992 Ky. LEXIS 127 ( Ky. 1992 ); Cann v. Howard, 850 S.W.2d 57, 1993 Ky. App. LEXIS 20 (Ky. Ct. App. 1993); Williams v. United States, 165 F.3d 29, 165 F.3d 30, 1998 U.S. App. LEXIS 36454 (6th Cir. 1998); Woodford Health Care, Inc. v. Bank of N.Y., 247 F. Supp. 2d 830, 2003 U.S. Dist. LEXIS 3547 (E.D. Ky. 2003 ).

Notes to Unpublished Decisions

1.Transacting Any Business.

Unpublished decision: Even assuming the corporate guarantee showed the parent company transacted business in Kentucky, the employees' claims did not arise that contract; the employees allege personal injuries resulting from chemical exposure, and their claims had no relation to the corporate guarantee the parent company signed. Cox v. Koninklijke Philips, N.V., 647 Fed. Appx. 625, 2016 FED App. 0252N, 2016 U.S. App. LEXIS 8688 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

The sole obligation of the secretary of state, when served with process pursuant to this section, is to receive, file and keep on record the process and a copy of the complaint received, and to afford to the serving officer indorsements upon secondary copies of process and complaints in order that the serving officer may forward such secondary copies to the defendant by registered mail. OAG 1969-90 .

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.

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

Leathers, Miller v. Davis: The Sixth Circuit Applies Interest Analysis to an Erie Problem, 63 Ky. L.J. 923 (1974-1975).

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

Kentucky Law Survey: Ham, Corporations, 66 Ky. L.J. 477 (1977-1978).

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Kentucky Law Survey, Garvey and Dorris, Civil Procedure, 67 Ky. L.J. 489 (1978-1979).

Kentucky Law Survey, Leathers, Tomasi and Hunt, Civil Procedure, 70 Ky. L.J. 551 (1981-82).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Kentucky Law Survey, Leathers, Civil Procedure, 72 Ky. L.J. 315 (1983-84).

Perna, The Uniform Reciprocal Enforcement of Support Act and the Defense of Non-Paternity: A Functional Analysis, 73 Ky. L.J. 75 (1984-85).

Leathers and Mooney, Civil Procedure, 74 Ky. L.J. 355 (1985-86).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Sixth Circuit Notes, Jurisdiction — Kentucky Long Arm Statute —Activities of Foreign Corporation Held to Constitute “Transaction of Business”—Davis H. Elliot Co. v. Caribbean Utils. Co., 513 F.2d 1176, 1975 U.S. App. LEXIS 15405 (6th Cir. 1975), 3 N. Ky. L. Rev. 247 (1976).

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

Bartlett, Civil Procedure, 20 N. Ky. L. Rev. 605 (1993).

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Montague and Muehlenkamp, Kentucky Corporate Law Developments, 21 N. Ky. L. Rev. 413 (1994).

Bartlett & Maggio, Civil Procedure Survey, 28 N. Ky. L. Rev. 316 (2001).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint, Form 255.03.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Nonresident Defendant, Form 150.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in U.S. District Court for Polluting Sewer, Form 350.03.

Caldwell’s Kentucky Form Book, 5th Ed., Judgment and Order of Sale, Plaintiff is First Lien Holder, Form 301.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Service of Process (Long-Arm Statute or Rule), § 36.00.

454.220. Personal jurisdiction of courts over nonresidents in certain domestic relations matters.

A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards, or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time the demand is made, if this state was the matrimonial domicile of the parties before their separation; the defendant abandoned the plaintiff in this state; or the claim for support, alimony, maintenance, distributive awards, or special relief in matrimonial actions accrued under the laws of this state. The action shall be filed within one (1) year of the date the respondent or defendant became a nonresident of, or moved his domicile from, this state. Service of process may be made by personal service if the defendant or respondent is found within the state or by service through the use of KRS 454.210(3).

History. Enact. Acts 1992, ch. 169, § 4, effective July 14, 1992.

NOTES TO DECISIONS

1.Personal Jurisdiction Over Non-resident Spouse.

Where Kentucky was a former husband’s and wife’s matrimonial domicile, the husband abandoned the wife and moved to West Virginia, her claim for relief accrued under the laws of Kentucky, and the action was filed within one year of the date the husband moved to West Virginia, under KRS 454.220 the Kentucky Circuit Court had personal jurisdiction over the husband and hence subject matter jurisdiction over the entire action. Jeffrey v. Jeffrey, 153 S.W.3d 849, 2004 Ky. App. LEXIS 91 (Ky. Ct. App. 2004).

Personal judgment initially entered by a family court in dissolution proceedings against former husband was improper under KRS 454.165 because the former husband, who was a nonresident, was improperly served as the husband was not served via the Secretary of State as required by KRS 454.210(3); thus, personal jurisdiction was not obtained pursuant to KRS 454.220 . Miller v. McGinity, 234 S.W.3d 371, 2007 Ky. App. LEXIS 322 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaints, Form 255.03.

454.260. Definitions.

As used in KRS 454.260 to 454.270 , unless the context otherwise requires:

  1. “Vessel” means to include all navigable structures intended for commercial or pleasure transportation or any type of boating upon any river, lake, stream or body of water in the State of Kentucky. Said definition is to be interpreted liberally.
  2. “Boat” means to include all navigable structures intended for commercial or pleasure transportation or any type of boating upon any river, lake, stream or body of water in the State of Kentucky. Said definition is to be interpreted liberally.
  3. “Water craft” means to include all navigable structures intended for commercial or pleasure transportation or any type of boating upon any river, lake, stream or body of water in the State of Kentucky. Said definition is to be interpreted liberally.
  4. “Nonresident” means any person who does not live and reside in the State of Kentucky or any business or corporation which does not have the home office or principal place of business in the State of Kentucky.

History. Enact. Acts 1966, ch. 183, § 3.

Research References and Practice Aids

Northern Kentucky Law Review.

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

454.265. Citation — Purposes.

  1. KRS 454.260 to 454.270 may be cited as the Nonresident Boating Act.
  2. In enacting KRS 454.260 to 454.270 , it is the intention of the General Assembly to prevent a nonresident using the waters of the State of Kentucky and as a direct and proximate result of said use, causing any injury to any person or property and creating a situation where it is difficult or inconvenient to obtain service of process by virtue of any claim arising therefrom.

History. Enact. Acts 1966, ch. 183, §§ 1, 2.

454.270. Appointment of Secretary of State as agent for service of process — Service of process — Return — Applicability.

  1. Any nonresident operator or owner of any watercraft who accepts the privilege extended by the laws of this state to nonresidents to operate watercraft or have them operated within state shall, by such acceptance and by the operation of such watercraft within this state, make the Secretary of State the agent of himself or his personal representative for the service of process in any civil action instituted in the courts of this state against the operator or owner, or the personal representative of the operator or owner, arising out of or by reason of any accident or collision or damage occurring within this state in which the watercraft is involved.
  2. The clerk of the court in which the action is brought shall issue a summons against the defendant named in the complaint and direct it to the sheriff of Franklin County. The sheriff shall execute the summons by delivering two (2) true copies to the Secretary of State and shall also deliver with each summons an attested copy of plaintiff’s complaint. The Secretary of State shall immediately mail a copy of the summons and complaint to the defendant at the address given in the complaint. The letter shall be posted by prepaid certified mail, return receipt requested, and shall bear the return address of the Secretary of State. The sheriff shall make the usual return to the court, and in addition the Secretary of State shall make a return to the court showing that the acts contemplated by this statute have been performed, and shall attach to his return the registry receipt, if any. Summons shall be deemed to be served on the return of the Secretary of State and the action shall proceed as provided in the Rules of Civil Procedure.
  3. The sheriff serving the summons upon the Secretary of State shall pay to him, at the time of service, a fee of ten dollars ($10), which shall be taxed as costs in the action. The Secretary shall keep a record of each summons, including the day and hour of service upon him.
  4. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to appear and defend the action.
  5. This chapter extends the right of service of process upon nonresidents, and does not limit any other provisions for the service of process.
  6. The provisions of this chapter shall apply to any operator or owner of any watercraft who is a resident of this state at the time any accident or collision or damage occurs and who thereafter becomes a nonresident.

History. Enact. Acts 1966, ch. 183, § 4; 1972, ch. 307, § 2; 1974, ch. 315, § 88; 1980, ch. 114, § 108, effective July 15, 1980; 1986, ch. 204, § 14, effective July 15, 1986; 1988, ch. 185, § 4, effective July 15, 1988.

Research References and Practice Aids

Kentucky Law Journal.

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).

454.275. Personal service on person whose marital domicile is in Kentucky.

A court may exercise personal jurisdiction over a person whose marital domicile is in Kentucky, and who, for the purpose of avoiding support and maintenance of his minor children, removes himself from the jurisdiction of the court. In such cases service may be had as provided in KRS 454.210 and 454.270 .

History. Enact. Acts 1972, ch. 307, § 4.

NOTES TO DECISIONS

1.Motivation for Removal.

A husband, who was living in Florida at the time the trial court entered a decree of legal separation, would not be bound by a subsequent judgment of the court that the husband had removed himself from the jurisdiction of the court for the purpose of avoiding support and maintenance of the children, until it was determined on the basis of a due process evidentiary hearing that his removal from Kentucky was motivated in a substantial degree by an intent to avoid the authority of the Kentucky courts to act against him in the matter of child support. Tally v. Tally, 603 S.W.2d 486, 1980 Ky. LEXIS 249 ( Ky. 1980 ).

Cited:

Cann v. Howard, 850 S.W.2d 57, 1993 Ky. App. LEXIS 20 (Ky. Ct. App. 1993).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint, Form 255.03.

Petrilli, Kentucky Family Law, Court Procedure, § 23.14.

454.280. Individuals who can and cannot take depositions — Penalty.

  1. Depositions taken in the Commonwealth that are to be used in its courts shall be taken before:
    1. A hearing examiner;
    2. A judge, clerk, commissioner, or official reporter of a court;
    3. A notary public; or
    4. Before other persons and under other circumstances authorized by law.
    1. A deposition shall not be taken by a person who is: (2) (a) A deposition shall not be taken by a person who is:
      1. A party to the action;
      2. A relative, employee, or attorney of one (1) of the parties;
      3. Someone with a financial interest in the action or its outcome; or
      4. A relative, employee, or attorney of someone with a financial interest in the action or its outcome. For the purposes of this subparagraph, “employee” or “relative” shall not include an employee or relative of the attorney of one (1) of the parties.
    2. For the purposes of paragraph (a) of this subsection, “employee” includes a person who has a contractual relationship with a person or entity interested in the outcome of the litigation, including anyone who may ultimately be responsible for payment to provide reporting or other court services, and a person who is employed part-time or full-time under contract or otherwise by a person who has a contractual relationship with a party to provide reporting or other court services.
    3. If a deposition is taken by a person described in paragraph (a) of this subsection, then that deposition shall be void.
  2. The provisions of subsections (1) and (2) of this section shall not apply to contracts for court reporting services for the courts, agencies, or instrumentalities of the United States or the Commonwealth.
  3. Any person who takes a deposition in violation of subsection (2) of this section shall be guilty of a Class B misdemeanor.

History. Enact. Acts 1998, ch. 224, § 1, effective July 15, 1998.

454.350. Time within which judge, commissioner or hearing officer must issue judgment or report — Certification of reason when delay occurs.

  1. Every Circuit and District Judge shall, when at all possible, issue a written judgment or order in all civil actions which have been submitted for final adjudication within ninety (90) days from the date the action was taken under submission.
  2. Where a report, findings, or recommendations of a commissioner or hearing officer are required by statute or rule as a prerequisite to an order or judgment by the Circuit or District Court the same shall be filed within ninety (90) days of the conclusion of the trial or hearing at which the commissioner or hearing officer presided.
  3. Every Circuit and District Judge shall at the end of every month certify in writing to the Chief Justice of the Supreme Court all cases which have been submitted for final adjudication for longer than ninety (90) days and have not been adjudicated and certify in writing to the Chief Justice of the Supreme Court the reason for the delay.
  4. Any District or Circuit Judge who knowingly violates any of the provisions of this section shall be subject to removal by the Judicial Retirement and Removal Commission.

History. Enact. Acts 1976 (Ex. Sess.), ch. 11, § 1.

NOTES TO DECISIONS

1.Tardy Reports.

Judgments or reports filed after the 90-day periods of this section have run are not void because of their tardiness; to hold that every judgment of a court or report of a commissioner submitted 90 days subsequent to the conclusion of a trial or hearing is void would prolong the very evil this section sought to avoid, and would punish the very persons whom it was intended should be its beneficiaries, in that the parties would have to bear the necessary costs involved in a retrial or reintroduction of evidence before a hearing officer. Dubick v. Dubick, 653 S.W.2d 652, 1983 Ky. App. LEXIS 300 (Ky. Ct. App. 1983).

Where a former husband brought an action to reduce maintenance and child support payments and the court referred the action to its commissioner for domestic relations matters, the fact that the commissioner did not file his report with the trial court until 263 days after he held his evidentiary hearing did not render his report or the trial court’s subsequent decision void, in that the delay was chargeable to the husband as he remained inactive throughout that period and only raised the tardiness issue after he saw that the commissioner’s report was adverse to him. Dubick v. Dubick, 653 S.W.2d 652, 1983 Ky. App. LEXIS 300 (Ky. Ct. App. 1983).

2.Remedies for Delay.

The legislative objective in specifying the 90-day time limits of this section was to encourage the swift administration of justice and not the pyramiding of costs to the citizen litigants; accordingly, if a party is faced with a recalcitrant commissioner he can seek a mandate of his superior, the trial court, or else ask that the order of reference be set aside; on the other hand, in the event the court is unwilling to act within the time prescribed, then the appropriate writ should be sought from the appellate levels. As a last remedy the aggrieved party can seek removal of the offending jurist, for there can be no argument with the view that if one seeks a judicial position, then they should be willing and able to fulfill their duties within the confines of the law. Dubick v. Dubick, 653 S.W.2d 652, 1983 Ky. App. LEXIS 300 (Ky. Ct. App. 1983).

Wife was not entitled to a new hearing as to all issues due to the four year delay from the oral ruling of the Domestic Relations Commissioner (DRC), in a case where the wife’s attorney failed to draft an order as directed by the DRC, because the relief for which the wife was asking (to have the findings of the DRC set aside and a new hearing held) was simply unavailable to the wife under KRS 454.350 . Thomas v. Thomas, 248 S.W.3d 564, 2008 Ky. LEXIS 70 ( Ky. 2008 ).

Opinions of Attorney General.

This section, as it relates to the filing of reports and findings of commissioners and hearing officers, applies to civil cases the conclusion of the trial or hearing of which occurs on and after March 19, 1977. OAG 77-250 .

This section, as it relates to the judges, applies to civil cases submitted for final adjudication on and after March 19, 1977, and does not apply to cases submitted for final adjudication before that date. OAG 77-250 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977, Ky. Bench & Bar 13.

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

Petrilli, Kentucky Family Law, Court Procedure, § 23.36.

Civil Actions Brought by Inmates

454.400. Definitions for KRS 454.405 to 454.415.

As used in KRS 454.405 to 454.415 , “inmate” means any person confined in either a state or federally operated facility, a county jail or other facility of local government, or in a private facility under contract with the Department of Corrections.

History. Enact. Acts 1996, ch. 118, § 3, effective July 15, 1996; 2010, ch. 46, § 1, effective July 15, 2010.

454.405. Dismissal of civil actions brought by inmates — Grounds — Order — Assessment of fines and costs.

  1. At any time, and upon its own motion or on motion of a party, a court may dismiss a civil action brought by an inmate or on behalf of an inmate if satisfied that the action is malicious or harassing or if satisfied that the action is legally without merit or factually frivolous. In addition to any other available disposition, a court may dismiss the civil action if satisfied that the affidavit of poverty in support of a request to proceed in forma pauperis is wholly or partly false or misleading.
  2. This section does not apply to criminal or collateral criminal proceedings.
  3. A court which dismisses a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section shall include as part of its order specific findings as to the reasons for the dismissal. The court shall, upon issuing the order, direct the circuit clerk to transmit a copy of the entire court order to the official having custody of the inmate and to all persons named as a party defendant in the action.
  4. A court which dismisses a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section may include as part of its order an assessment of fines and costs against the inmate as the court may deem reasonable and prudent. The Department of Corrections, county jail, or other local or regional correctional facility may enforce this assessment against the inmate’s canteen account and against any other assets of the inmate through any other mechanism provided by law.
  5. No inmate may maintain a civil action for monetary damages in any state court for mental or emotional injury without a prior showing of physical injury.

History. Enact. Acts 1996, ch. 118, § 1, effective July 15, 1996; 2000, ch. 345, § 6, effective July 14, 2000; 2010, ch. 46, § 2, effective July 15, 2010.

NOTES TO DECISIONS

1.Dismissal Upheld.

Trial court properly dismissed a prisoner’s claims against individuals involved in his criminal prosecution under KRS 454.405 because the suit was frivolous; the complaint contained no specific averments that supported the general assertion of fraud and, therefore, did not comply with CR 9.02. Further, it violated CR 11 as it was not well grounded in fact and had no purpose except to harass the inmate’s accusers and to attempt a delay in his criminal prosecution. Edwards v. Van De Rostyne, 245 S.W.3d 797, 2008 Ky. App. LEXIS 20 (Ky. Ct. App. 2008).

454.410. Payment of fees and court costs by inmates — Waiver.

  1. When an inmate commences, intervenes, or becomes a party to an action or an appeal of a judgment in a civil action or proceeding without paying the fees and court costs imposed by law, the inmate shall prepare an affidavit with a certified copy of the inmate’s prison account statement showing the total deposits for the six (6) months immediately preceding the inmate’s commencement, intervention, or joining of the action, or an appeal of a judgment in a civil action or proceeding, if available. If the records are not available for the preceding six (6) months, all inmate account records that are available shall be filed with the affidavit.
  2. When an inmate commences, intervenes, or joins an action or an appeal of a judgment in a civil action or proceeding, the inmate shall pay at least partial court fees and costs. At a minimum, the inmate shall pay a five dollar ($5) filing fee unless the court determines the inmate is unable to pay a fee and waives all fees and costs. If the inmate has the ability to pay a higher amount, the court shall order the inmate to pay the higher amount. However, the fees and costs imposed shall not exceed the full amount otherwise imposed by law.
  3. If the court approves the application to waive all fees and costs, the court shall give written notice to the inmate that all fees and costs relating to the action will be waived. If the court denies the motion to waive all fees, the court shall give written notice to the inmate that the inmate’s case will be dismissed if the partial fees and costs are not paid within forty-five (45) days after the date of the order, or within an additional period that the court may, upon request, allow. Process concerning the inmate’s case shall not be served until the filing fee and the fee relating to service of process is paid.
  4. If the inmate claims exceptional circumstances that render the inmate unable to pay at least the partial fees and costs ordered by the court, then the inmate shall submit, in addition to the statement of account required by this section, a copy of the detailed canteen expenditure sheet, and an affidavit of special circumstances setting forth the reasons and circumstances that justify relief from the partial fees and costs requirement.
  5. In no event shall an inmate bring a civil action or appeal a judgment in a civil action or proceeding under this section if the inmate has, on three (3) or more occasions within a five (5) year period, while incarcerated or detained in any facility, brought an action or appeal in any court that was dismissed on the grounds that it was frivolous, malicious, or harassing, unless the prisoner is under imminent danger of serious physical injury, without paying the entire filing fee in full.

History. Enact. Acts 1996, ch. 118, § 2, effective July 15, 1996; 2002, ch. 11, § 4, effective July 15, 2002.

NOTES TO DECISIONS

1.Application.

While it is clear that the inmate was not a person of means, the record of his prison account supported the conclusion that the payment of a five dollar ($5) filing fee was not beyond the scope of his ability. Palmer v. O'Dea, 8 S.W.3d 884, 1999 Ky. App. LEXIS 159 (Ky. Ct. App. 1999).

Because the trial court had not considered a inmate’s ability to pay any portion of the filing fees under KRS 454.410 and the prisoner had not yet paid any fees, the action was remanded for consideration of the inmate ability to pay either all or a reduced portion of the filing fees. Edwards v. Van De Rostyne, 245 S.W.3d 797, 2008 Ky. App. LEXIS 20 (Ky. Ct. App. 2008).

2.Construction.

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).

454.415. Prohibition against civil action filed by or on behalf of inmate prior to exhaustion of administrative remedies — Dismissal of action and assessment of costs — Period of limitations.

  1. No action shall be brought by or on behalf of an inmate, with respect to:
    1. An inmate disciplinary proceeding;
    2. Challenges to a sentence calculation;
    3. Challenges to custody credit; or
    4. A conditions-of-confinement issue;

      until administrative remedies as set forth in the policies and procedures of the Department of Corrections, county jail, or other local or regional correctional facility are exhausted.

  2. Administrative remedies shall be exhausted even if the remedy the inmate seeks is unavailable.
  3. The inmate shall attach to any complaint filed documents verifying that administrative remedies have been exhausted.
  4. A court shall dismiss a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section if the inmate has not exhausted administrative remedies, and may include as part of its order an assessment of court costs against the inmate as the court may deem reasonable and prudent. The correctional facility may enforce this assessment against the inmate’s canteen account and against any other assets of the inmate through any other mechanism provided by law.
  5. A court which dismisses a civil action brought by an inmate for the reasons set out in this section shall include as part of its order specific findings as to the reasons for the dismissal. The court shall, upon issuing the order, direct the circuit clerk to transmit a copy of the entire court order to the official having custody of the inmate, to all persons named as a party defendant in the action, and also, by certified mail, return receipt requested, to the inmate.
  6. The period of limitations applicable to the cause of action after it has been dismissed by a court under this section for failure to exhaust administrative remedies is the period fixed by the applicable statute or ninety (90) days following the exhaustion of administrative remedies if the grievance is filed within the applicable period of limitations, whichever is later. Nothing in this subsection shall be construed to revive a cause of action that is barred by the applicable period of limitations.

History. Enact. Acts 1996, ch. 118, § 5, effective July 15, 1996; 2002, ch. 11, § 2, effective July 15, 2002; 2006, ch. 118, § 1, effective July 12, 2006; 2010, ch. 46, § 3, effective July 15, 2010.

NOTES TO DECISIONS

Analysis

1.In General.

Because the inmate failed to attach documentation setting forth the grounds for three of the inmate’s four appeals, the inmate failed to establish that he had exhausted the administrative remedies as required by KRS 454.415(1). Houston v. Fletcher, 193 S.W.3d 276, 2006 Ky. App. LEXIS 147 (Ky. Ct. App. 2006).

Inmate’s motion to compel calculation of his sentence was properly denied by the trial court, as the inmate failed to follow the proper procedure under KRS 454.415 where he did not indicate that he filed an administrative complaint or appeal. Hensley v. Commonwealth, 355 S.W.3d 473, 2011 Ky. App. LEXIS 225 (Ky. Ct. App. 2011).

Pursuant to KRS 454.415(4), an inmate was required to have exhausted administrative remedies before filing an action in the trial court. Since the inmate had administrative remedies available regarding the inmate’s request for an award of retroactive meritorious good time credit and did not exhaust them, the trial court had no choice but to dismiss the inmate’s petition for a declaration of rights filed in the trial court regarding that request. Thrasher v. Commonwealth, 386 S.W.3d 132, 2012 Ky. App. LEXIS 244 (Ky. Ct. App. 2012).

2.Preservation for Review.

In a prison disciplinary proceeding, an appellate court refused to address certain issues because they were not raised in the proceedings below or before a circuit court. As such, they were not preserved for appellate review. Adams v. Meko, 341 S.W.3d 600, 2011 Ky. App. LEXIS 112 (Ky. Ct. App. 2011).

3.Exhaustion.

Circuit court erred in dismissing an inmate's petition for declaration of rights on the ground that he failed to exhaust his administrative remedies where the inmate wrote his reasons for appeal well in advance of the 15-day deadline set forth in Kentucky Correctional Policies and Procedures 15.6(II)(F)(3), the only evidence in the record substantiated his claim that he mailed the appeal to the warden within that window, and thus, a remand was necessary to determine whether the inmate could establish a right to relief under equitable tolling. Lee v. Haney, 517 S.W.3d 500, 2017 Ky. App. LEXIS 56 (Ky. Ct. App. 2017).

Notes to Unpublished Decisions

1.Exhaustion.

Unpublished decision: Kentucky law did not require a federal habeas petitioner to exhaust his administrative remedies before he could file his state post-conviction motion claiming ineffective assistance because the exhaustion requirement pursuant to this statute applies to challenges to a sentence calculation, among other things. It does not apply to an ineffective assistance claim, which should be brought in a motion to vacate, set aside, or correct a sentence. Smith v. Meko, 709 Fed. Appx. 341, 2017 FED App. 0528N, 2017 U.S. App. LEXIS 17836 (6th Cir. Ky. 2017 ), cert. denied, 138 S. Ct. 1034, 200 L. Ed. 2d 290, 2018 U.S. LEXIS 1105 (U.S. 2018).

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Transfer of Structured Settlement Payment Rights

454.430. Definitions for KRS 454.430 to 454.435.

As used in KRS 454.430 to 454.435 :

  1. “Annuity issuer” means an insurer that has issued an annuity contract to be used to fund periodic payments under a structured settlement;
  2. “Payee” means an individual who is receiving tax-free damage payments under a structured settlement and who wants to make a transfer of payment rights under the structured settlement agreement;
  3. “Protected parties” means, with respect to any structured settlement, the payee, any named beneficiary designated in the annuity contract or structured settlement to receive payments following the payee’s death, or, if the named beneficiary is a minor, the named beneficiary’s parent or guardian, the annuity issuer, and the structured settlement obligor;
  4. “Qualified assignment agreement” means an agreement providing for a qualified assignment that meets the requirements of Section 130 of the Internal Revenue Code, 26 U.S.C. sec. 130 , as amended from time to time;
  5. “Settled claim” means the original tort claim resolved by a structured settlement;
  6. “Structured settlement” means an arrangement for periodic payment of damages for personal injuries established by settlement or judgment in resolution of a tort claim;
  7. “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing periodic payment obligation to the payee under a structured settlement agreement or a qualified assignment agreement;
  8. “Structured settlement payment rights” means rights to receive periodic payments, including lump sum payments under a structured settlement, whether from the settlement obligor or the annuity issuer, where:
    1. The payee or any other protected party is domiciled in this state; or
    2. The settled claim was pending before the courts of this state when the structured settlement was reached;
  9. “Transfer” means any sale, assignment, pledge, hypothecation, or other form of alienation or encumbrance made for consideration; and
  10. “Transfer agreement” means the agreement providing for transfer of structured settlement payment rights from a payee to a transferee.

History. Enact. Acts 1998, ch. 409, § 1, effective July 15, 1998.

Compiler’s Notes.

Section 4 of Acts 1998, ch. 409, provided that this section “shall apply to any transfer of structured settlement payment rights under a transfer agreement reached on or after the effective date of this Act.”

NOTES TO DECISIONS

1.Applicability.

Kentucky Structured Settlement Protection Act (KSSPA) did not apply to workers’ compensation settlements because the KSSPA expressly referred to tort claims and required a settled claim pending in a Kentucky court before a settlement was reached, so a trial court had no authority to allow a transfer of structured settlement payment rights arising from a workers’ compensation claim. Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 562 S.W.3d 916, 2018 Ky. LEXIS 535 ( Ky. 2018 ).

454.431. Requirement for court approval of transfer of structured settlement payment rights — Express findings that are required.

No transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of any transfer of structured settlement payment rights unless the transfer has been approved in advance in an order of a court of competent jurisdiction, based on the court’s express findings that:

  1. The transfer complies with the requirements of KRS 454.430 to 454.435 and does not contravene other applicable law;
  2. Not less than ten (10) days prior to the date on which the payee entered into the transfer agreement, the transferee has provided to the payee a disclosure statement in bold type, no smaller than fourteen (14) point, setting forth:
    1. The amounts and due dates of the structured settlement payments to be transferred;
    2. The aggregate amount of the payments;
    3. The discounted present value of the payments, together with the discount rate or rates used in determining the discounted present value;
    4. The gross amount payable to the payee in exchange for the payments;
    5. An itemized listing of all brokers’ commissions, service charges, application or processing fees, closing costs, filing or administrative charges, legal fees, notary fees and other commissions, fees, costs, expenses, and charges payable by the payee or deductible from the gross amount otherwise payable to the payee; and
    6. The amount of any penalty and the aggregate amount of any liquidated damages, including penalties, payable by the payee in the event of any breach of the transfer agreement by the payee;
  3. The payee has established that the transfer is necessary to enable the payee to avoid imminent financial hardship;
  4. The transferee has given written notice of the transferee’s name, address, and taxpayer identification number to the annuity issuer and the structured settlement obligor and had filed a copy of the notice with the court; and
  5. The payee has consented in writing to the transfer.

History. Enact. Acts 1998, ch. 409, § 2, effective July 15, 1998.

Compiler’s Notes.

Section 4 of Acts 1998, ch. 409, provided that this section “shall apply to any transfer of structured settlement payment rights under a transfer agreement reached on or after the effective date of this Act.”

NOTES TO DECISIONS

1.Bankruptcy Proceeding.

Creditor had no ownership interest in identified annuity payments covered by a purchase agreement with the debtors, nor were the payments encumbered by the alleged security interest of the creditor; the undistributed payments were not property of the bankruptcy estate. J.G. Wentworth, SSC, L.P. v. Goins (In re Goins), 2002 Bankr. LEXIS 1736 (Bankr. E.D. Ky. Dec. 19, 2002).

2.Transfer of Workers' Compensation Structured Settlement.

Circuit court properly approved a payee's transfer of payment rights in a workers' compensation structured settlement because the anti-assignment provisions provided in the contracts between the payee, the insurer, and the annuity issuer were unenforceable where the payee had a legitimate claim to his periodic payments just like any creditor in a debtor-creditor relationship, which was the hallmark of a personal property interest and could not, ordinarily, be restrained from alienability, and the Structured Settlement Protection Act did not displace common law contract principles and authorized a circuit court to approve the transfer of workers' compensation awards. Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 2017 Ky. App. LEXIS 236 (Ky. Ct. App. June 9, 2017).

454.435. Jurisdiction of the Circuit Court — Notice and hearing requirements — Nonwaiverability of KRS 454.430 to 454.435.

  1. The Circuit Court in the county in which the original action was or could have been filed, or the county where the applicant resides, shall have jurisdiction over any application for approval of a transfer of structured settlement payment rights under KRS 454.431 .
  2. Not less than twenty (20) days prior to the scheduled hearing on any application for court approval of a transfer of structured settlement payment rights under KRS 454.431 , the payee or transferee shall file with the court and serve on all protected parties a notice of the proposed transfer and the application for its approval, including in the notice:
    1. A copy of the transferee’s application to the court;
    2. A copy of the disclosure statement required under KRS 454.431 (2); and
    3. Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed, which shall be not less than ten (10) days after service of the transferee’s notice, in order to be considered by the court.
  3. The provisions of KRS 454.430 to 454.435 may not be waived.

History. Enact. Acts 1998, ch. 409, § 3, effective July 15, 1998.

Compiler’s Notes.

Section 4 of Acts 1998, ch. 409, provided that this section “shall apply to any transfer of structured settlement payment rights under a transfer agreement reached on or after the effective date of this Act.”

NOTES TO DECISIONS

1.Jurisdiction.

Structured Settlement Protection Act provided a statutory procedure for the exchange of structured settlement payments for a lump sum cash payment, and established jurisdiction in the trial court in which the original action was or could have been filed, or the county where the applicant resided, pursuant to KRS 454.435(1). As a result, the trial court had the authority to consider the third-party’s petition for transfer of compensation to it under an agreement between the third-party and the employee. Ky. Employers' Mut. Ins. v. Novation Capital, LLC, 361 S.W.3d 320, 2011 Ky. App. LEXIS 260 (Ky. Ct. App. 2011), overruled in part, Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 562 S.W.3d 916, 2018 Ky. LEXIS 535 ( Ky. 2018 ).

454.450. Definitions for KRS 452.453 and 454.455.

  1. As used in KRS 452.453 and 454.455 , “tobacco grower” means any person who is a resident of Kentucky engaged in the production of growing tobacco or receives proceeds from the sale of tobacco in Kentucky for consumption or use. “Tobacco grower” as used in this section includes, but is not limited to, farm operator, owner/operator, cash tenant, landlord of a share tenant, share tenant, or share cropper.
  2. As used in KRS 452.453 and 454.455 , “warehouseman” means the owner, operator, manager, lessee, or proprietor of a warehouse engaged in selling tobacco, or his or her agents or employees.

History. Enact. Acts 1998, ch. 422, § 1, effective April 7, 1998.

Legislative Research Commission Note.

(7/15/98). In codifying this statute, the phrase “As used in this section” in 1998 Ky. Acts ch. 422, sec. 1, has been treated as if it read “As used in this Act.” Otherwise, the definitions in Section 1 of that Act, which are used in Sections 2 and 3 (KRS 452.453 and 454.455 ) would be without effect. It is clear from context that this is what must have been intended in drafting this Act. KRS 7.136(1)(h).

454.455. Proof required for damages against tobacco growers and warehousemen — Costs that may be awarded to prevailing defendant.

  1. In a civil action against a tobacco grower for damages alleged to have occurred as a result of use or consumption of tobacco products, in order for liability to be found against a tobacco grower, the plaintiff shall prove by clear and convincing evidence that the tobacco that caused the alleged damage was planted, cultivated, and harvested by that specific tobacco grower and not by any other person.
  2. In a civil action against a warehouseman for damages alleged to have occurred as a result of use or consumption of tobacco products, in order for liability to be found against a warehouseman, the plaintiff shall prove by clear and convincing evidence that the tobacco that caused the alleged damage was sold by that specific warehouseman and not by any other person.
  3. If a suit against a tobacco grower or a warehouseman is dismissed or the defendant prevails at trial, the defendant may be entitled to three (3) times the entire costs of defending the action, including but not limited to legal fees, expert witnesses, and other expenses arising from the defense of the action.

History. Enact. Acts 1998, ch. 422, § 3, effective April 7, 1998.

CHAPTER 455 Miscellaneous Criminal Practice Provisions

455.010, 455.020. Trial of misdemeanor cases. [Recompiled.]

Compiler’s Notes.

These sections (1073, 1074, 1076) were recompiled as KRS 23.145 by Acts 1962, ch. 234, § 57. KRS 23.145 was subsequently repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

455.030. Proceedings after judgment — Appeal. [Recompiled.]

Compiler’s Notes.

Subsection (1) of this section (1075) was recompiled as KRS 23.145 by Acts 1962, ch. 234, § 57. KRS 23.145 was subsequently repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Subsection (2) of this section (1077) was repealed by Acts 1962, ch. 234, § 61.

455.040. Magistrate to notify county attorney of trial or examining trial. [Repealed.]

Compiler’s Notes.

This section (128) was repealed by Acts 1962, ch. 234, § 61.

455.050. Felony docket to be called and trial dates fixed on last day of term. [Repealed.]

Compiler’s Notes.

This section (967-1) was repealed by Acts 1962, ch. 234, § 61.

455.060. Stolen, destroyed or lost indictment. [Repealed.]

Compiler’s Notes.

This section (1140) was repealed by Acts 1962, ch. 234, § 61.

455.070. Dismissal or nolle prosequi; statement to be filed. [Repealed.]

Compiler’s Notes.

This section (123) was repealed by Acts 1962, ch. 234, § 61.

455.080. Information or warrant; when prosecution may be had on. [Repealed.]

Compiler’s Notes.

This section (1141) was repealed by Acts 1962, ch. 234, § 61.

455.090. [Recompiled.]

Compiler’s Notes.

This section was recompiled as KRS 421.225 by Acts 1962, ch. 234, § 62.

455.100. [Recompiled.]

Compiler’s Notes.

This section (1142) was recompiled as KRS 421.135 by Acts 1962, ch. 234, § 62.

455.110. Witness before grand jury, how subpoenaed in vacation. [Repealed.]

Compiler’s Notes.

This section (381) was repealed by Acts 1962, ch. 234, § 61.

455.120. Process, execution of on Sunday. [Recompiled.]

Compiler’s Notes.

This section (4567) was recompiled as KRS 431.095 by Acts 1962, ch. 234, § 62.

455.130. Infants, when to be excluded from courtroom. [Repealed.]

Compiler’s Notes.

This section (979) was repealed by Acts 1962, ch. 234, § 61.

455.140. Procedure for bringing federal prisoner to trial in state court on felony charge — Reimbursement of expenses.

The Commonwealth’s attorney may enter into an agreement with representatives of the federal government for conveyance of a federal prisoner to a Circuit Court of this state to stand trial therein on a felony charge, upon condition that such prisoner shall remain in the custody of an agent of the United States and be returned to the federal penitentiary for completion of the term of confinement there following conclusion of the trial in the Circuit Court, and thereafter to be returned to this state to serve any sentence imposed here. It may also be agreed that the state will bear the expense of such conveyance. The Commonwealth’s attorney shall then file in the Circuit Court his verified petition for writ of habeas corpus ad prosequendum stating facts as to the situation of the prisoner, the charge against him and date set for trial, the necessity of securing the prisoner for trial prior to his release in due course by federal authorities and the terms of the agreement which has been reached with such authorities. If the court deems the petition sufficient, it shall issue the writ and if the state is required to pay the expense the writ shall designate the officer to transport and guard the prisoner and such officer shall be reimbursed from the State Treasury for expenses incurred in the amount and manner provided in KRS 64.070(1); provided, however, that if a United States marshal or other federal official is designated by the court to transport and guard the prisoner such marshal or officer shall be reimbursed at the rate authorized by federal law or regulations. The Circuit Court shall enter an order of allowance of expenses for the officer upon conclusion of the trial.

History. Enact. Acts 1960, ch. 48, § 1; 1976, ch. 24, § 1.

Research References and Practice Aids

Cross-References.

Interstate agreement on detainers, KRS 440.450 .

455.150. Procedure for bringing material witness in state felony trial from federal prison—Reimbursement of expenses.

When a material witness for the Commonwealth in a felony prosecution pending in a court of this state is confined under judgment of conviction in any federal penal institution, the Commonwealth’s attorney may enter into an agreement with the appropriate federal authorities for conveyance of the witness at the expense of this state to the Circuit Court in which the trial is pending, and after trial, for return to the federal penitentiary. The Commonwealth’s attorney shall move the Circuit Court for an order for the attendance of the witness and shall state the situation of the prisoner, the date set for trial of the case, the importance of his testimony to the Commonwealth, and the agreement of the federal authorities to produce the prisoner in court. The Circuit Court shall designate the officer to transport and guard the prisoner and such person shall be reimbursed from the State Treasury for his expenses in the amount and manner provided in KRS 64.070(1); provided, however, that if a United States marshal or other federal official is designated by the court to transport and guard the prisoner such marshal or officer shall be reimbursed at the rate authorized by federal law or regulations. The Circuit Court shall enter an order of allowance of expenses for the officer upon conclusion of the trial.

History. Enact. Acts 1960, ch. 48, § 2; 1976, ch. 24, § 2.

455.160. Issuance of summons for violation of KRS 514.040.

In the event of a charge for a violation of KRS 514.040 with an amount of one hundred dollars ($100) or less, a summons shall be issued prior to an arrest warrant. An arrest warrant shall not be issued until the person charged fails to respond to the summons, unless the issuing judge determines that, based upon previous offenses or charges, an arrest of the person is necessary in order to reasonably assure his or her appearance in court.

History. Enact. Acts 1998, ch. 606, § 97, effective July 15, 1998.

455.170. Electronic application for and issuance of search warrant — Conditions.

The Supreme Court of Kentucky may, by rule, authorize a process allowing a search warrant to be applied for and issued electronically if the process meets the requirements of Section 10 of the Kentucky Constitution, requires the production of a paper copy of the warrant at the time it is served, and otherwise complies with any other requirements for search warrants generally, including those pertaining to their filing, execution, and return.

History. Enact. Acts 2014, ch. 62, § 1, effective July 15, 2014.

455.180. Arrest or search warrant authorizing entry without notice — Requirements for issuance.

No arrest warrant or search warrant shall be issued authorizing entry without notice unless:

  1. The court finds by clear and convincing evidence that:
    1. The crime alleged is a crime that would qualify a person, if convicted, as a violent offender under KRS 439.3401 ; the crime alleged is a crime designated in KRS 525.045 , 527.200 , 527.205 , or 527.210 ; or the evidence sought may give rise to the charge of a crime that would qualify a person, if convicted, as a violent offender under KRS 439.3401 or may give rise to a charge of a crime designated in KRS 525.045 , 527.200 , 527.205 , or 527.210 ; and
    2. As established by facts specific to the case, giving notice prior to entry will endanger the life or safety of any person, or result in the loss or destruction of evidence sought that may give rise to a charge of a crime that would qualify a person, if convicted, as a violent offender under KRS 439.3401 or may give rise to a charge of a crime designated in KRS 525.045, 527.200, 527.205, or 527.210;
  2. The law enforcement officer seeking the warrant has obtained the approval of his or her supervising officer, or has the approval of the highest ranking officer in his or her law enforcement agency;
  3. The law enforcement officer seeking the warrant has consulted with the Commonwealth’s attorney or county attorney for the jurisdiction for which the warrant is sought, or with an assistant Commonwealth’s attorney or assistant county attorney for the jurisdiction for which the warrant is sought;
  4. The law enforcement officer seeking the warrant discloses to the judge, as part of the application, any other attempt to obtain a warrant authorizing entry without notice for the same premises, or for the arrest of the same individual;
  5. The warrant authorizes that the entry without notice occur only between the hours of 6 a.m. and 10 p.m., except in exigent circumstances where the court makes the findings set forth in subsection (1) of this section and the court further finds by clear and convincing evidence that there are substantial and imminent risks to the health and safety of the persons executing the warrant, the occupants of the premises, or the public that justify the entry without notice occur during other hours designated by the court; and
  6. If the warrant is not issued electronically pursuant to KRS 455.170 , the warrant includes the legibly printed name and signature of the judge.

HISTORY: 2021 ch. 202, § 1, effective June 29, 2021.

455.190. Judicial review of application for warrant authorizing entry without notice.

A judge shall carefully review any application for a warrant pursuant to KRS 455.180 as a neutral and detached magistrate. Failure to act as a neutral and detached magistrate may be referred to the Judicial Conduct Commission.

HISTORY: 2021 ch. 202, § 2, effective June 29, 2021.

455.200. Requirements for execution of warrant authorizing entry without notice.

A warrant issued pursuant to KRS 455.180 shall be executed:

  1. By law enforcement officers who:
    1. Are members of a special weapons and tactics team or special response team, or another established team or unit trained and tasked with resolving high-risk situations and incidents, who have received appropriate training in the execution of arrest and search warrants authorizing entry without notice. In counties having a population of less than ninety thousand (90,000), when, after reasonable inquiry by the law enforcement officer seeking the warrant, members of the special weapons and tactics team or special response team are not available to timely execute the warrant and the court finds by clear and convincing evidence that the risks to the health and safety of the persons executing the warrant, the occupants of the premises, or the public are greater if the warrant is not timely executed, the court may approve the execution of the warrant without members of a special weapons and tactics team or special response team;
    2. Are equipped with body-worn cameras, or, in counties having a population of less than ninety thousand (90,000), equipped with other audio-visual or audio recording devices issued by the government, and shall record the entirety of the execution of the warrant with a recording device that meets the requirements of this paragraph; and
    3. Are equipped with clearly visible insignia on any protective equipment or clothing that clearly identifies the name of the agency that employs the members of the special weapons and tactics team or special response team;
  2. In the presence of a uniformed law enforcement officer; and
  3. With a certified or licensed paramedic or emergency medical technician in proximity and available to provide medical assistance, if needed.

HISTORY: 2021 ch. 202, § 3, effective June 29, 2021.

CHAPTER 456 Civil Orders of Protection

HISTORY: 2015 ch. 102, § 19, effective January 1, 2016.

456.010. Definitions for chapter.

As used in this chapter:

  1. “Dating relationship” means a relationship between individuals who have or have had a relationship of a romantic or intimate nature. It does not include a casual acquaintanceship or ordinary fraternization in a business or social context. The following factors may be considered in addition to any other relevant factors in determining whether the relationship is or was of a romantic or intimate nature:
    1. Declarations of romantic interest;
    2. The relationship was characterized by the expectation of affection;
    3. Attendance at social outings together as a couple;
    4. The frequency and type of interaction between the persons, including whether the persons have been involved together over time and on a continuous basis during the course of the relationship;
    5. The length and recency of the relationship; and
    6. Other indications of a substantial connection that would lead a reasonable person to understand that a dating relationship existed;
  2. “Dating violence and abuse” means physical injury, serious physical injury, stalking, sexual assault, strangulation, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault occurring between persons who are or have been in a dating relationship;
  3. “Foreign protective order” means any judgment, decree, or order of protection which is entitled to full faith and credit pursuant to 18 U.S.C. sec. 2265 which was not issued on the basis of domestic violence and abuse;
  4. “Global positioning monitoring system” means a system that electronically determines a person’s location through a device worn by the person which does not invade his or her bodily integrity and which transmits the person’s latitude and longitude data to a monitoring entity;
  5. “Order of protection” means any interpersonal protective order, including those issued on a temporary basis, and includes a foreign protective order;
  6. “Sexual assault” refers to conduct prohibited as any degree of rape, sodomy, or sexual abuse under KRS Chapter 510  or a criminal attempt, conspiracy, facilitation, or solicitation to commit any degree of rape, sodomy, or sexual abuse, or incest under KRS 530.020 ;
  7. “Stalking” refers to conduct prohibited as stalking under KRS 508.140 or 508.150 , or a criminal attempt, conspiracy, facilitation, or solicitation to commit the crime of stalking;
  8. “Strangulation” refers to conduct prohibited by KRS 508.170 and 508.175 , or a criminal attempt, conspiracy, facilitation, or solicitation to commit the crime of strangulation; and
  9. “Substantial violation” means criminal conduct which involves actual or threatened harm to the person, family, or property of an individual protected by an order of protection.

HISTORY: 2015 ch. 102, § 19, effective January 1, 2016; 2019 ch. 183, § 4, effective June 27, 2019; 2021 ch. 175, § 3, effective April 1, 2021.

456.020. Interpretation of chapter.

  1. This chapter shall be interpreted to:
    1. Allow victims to obtain effective, short-term protection against further wrongful conduct in order that their lives may be as secure and as uninterrupted as possible;
    2. Expand the ability of law enforcement officers to effectively respond to further wrongful conduct so as to prevent future incidents and to provide assistance to the victims;
    3. Provide peace officers with the authority to immediately apprehend and charge for violation of an order of protection any person whom the officer has probable cause to believe has violated an order of protection and to provide courts with the authority to conduct contempt of court proceedings for these violations;
    4. Provide for the collection of data concerning incidents of dating violence and abuse, sexual assault, strangulation, and stalking in order to develop a comprehensive analysis of the numbers and causes of such incidents; and
    5. Supplement and not repeal or supplant any duties, responsibilities, services, or penalties under KRS Chapters 209, 209A, and 620.
  2. Nothing in this chapter is intended to trigger the application of the provisions of 18 U.S.C sec. 922(g) as to an interpersonal protective order issued on the basis of the existence of a current or previous dating relationship.

HISTORY: 2015 ch. 102, § 20, effective January 1, 2016; 2019 ch. 183, § 5, effective June 27, 2019.

456.030. Petition for interpersonal protective order.

  1. A petition for an interpersonal protective order may be filed by:
    1. A victim of dating violence and abuse;
    2. A victim of stalking;
    3. A victim of sexual assault; or
    4. An adult on behalf of a victim who is a minor otherwise qualifying for relief under this subsection.
  2. The petition may be filed in the victim’s county of residence or a county where the victim has fled to escape dating violence and abuse, stalking, or sexual assault.
  3. The petition shall be verified and contain:
    1. The name, age, address, occupation, residence, and school or postsecondary institution of the petitioner;
    2. The name, age, address, occupation, residence, and school or postsecondary institution of the person or persons who have engaged in the alleged act or acts complained of in the petition;
    3. The facts and circumstances which constitute the basis for the petition; and
    4. The names, ages, and addresses of the petitioner’s minor children, if applicable.
  4. The petition shall be filed on forms prescribed by the Administrative Office of the Courts and provided to the person seeking relief by the circuit clerk or by another individual authorized by the court to provide and verify petitions in emergency situations, such as law enforcement officers, Commonwealth’s or county attorneys, and regional rape crisis centers or domestic violence shelters.
  5. All petitions requested, completed, and signed by persons seeking protection under this chapter shall be accepted and filed with the court.
    1. Jurisdiction over petitions filed under this chapter shall be concurrent between the District Court and Circuit Court. (6) (a) Jurisdiction over petitions filed under this chapter shall be concurrent between the District Court and Circuit Court.
    2. The Court of Justice shall provide a protocol for twenty-four (24) hour access to interpersonal protective orders in each county with any protocol, whether statewide or local, being subject to Supreme Court review and approval of the initial protocol and any subsequent amendments. This protocol may allow for petitions to be filed in or transferred to a court other than those specified in paragraph (a) of this subsection.
    3. The Court of Justice may authorize by rule that petitions in a specific county be filed in accordance with a supplemental jurisdictional protocol adopted for that county. This protocol may provide for petitions to be filed in or transferred to a court other than those specified in paragraph (a) of this subsection.
    4. 1. In addition to the protocols for twenty-four (24) hour access established under paragraphs (b) and (c) of this subsection, before January 1, 2019, the Court of Justice shall provide protocols for filing, including electronic filing, of petitions for orders of protection at those regional rape crisis centers designated under KRS 211.600 , or regional domestic violence shelters designated under KRS 209A.045 , that elect to participate in any county’s twenty-four (24) hour access protocol. 2. These protocols shall be subject to Supreme Court review for approval of the initial protocol and any subsequent amendments.
  6. Any judge to whom a petition is referred under subsection (6) of this section shall have full authority to review and hear a petition and subsequently grant and enforce an interpersonal protective order.
  7. If the judge of a court in which there is a pending request for modification or enforcement of an existing order of protection is unavailable or unable to act within a reasonable time, the proceedings may be conducted by any judge of the county in accordance with court rules.

HISTORY: 2015 ch. 102, § 21, effective January 1, 2016; 2018 ch. 115, § 7, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women's Dignity in the Justice System Act. This statute was amended in Section 7 of that Act.

NOTES TO DECISIONS

1.Evidence.

Because there was sufficient evidence for the circuit court to find that appellant stalked appellee, the circuit court properly entered an interpersonal protective order against appellant pursuant to Ky. Rev. Stat. Ann. § 456.030 . Calhoun v. Wood, 516 S.W.3d 357, 2017 Ky. App. LEXIS 55 (Ky. Ct. App. 2017).

2.Jurisdiction.

District court lacked subject matter jurisdiction to issue an interpersonal protection order (IPO) where a juvenile was the respondent. Under the unequivocal language of Ky. Rev. Stat. Ann. § 456.030(6)(a), jurisdiction over IPO cases was not vested exclusively between the district court and the circuit court, and thus, under Ky. Rev. Stat. Ann. §§ 24A.130 and 610.010(1), the juvenile court had exclusive jurisdiction over the IPO hearing. Doe v. Ramey, 2020 Ky. App. LEXIS 45 (Ky. Ct. App. Apr. 17, 2020).

456.040. Review of petition for interpersonal protective order — Temporary interpersonal protective order.

    1. The court shall review a petition for an interpersonal protective order immediately upon its filing. If the review indicates that dating violence and abuse, stalking, or sexual assault exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice. (1) (a) The court shall review a petition for an interpersonal protective order immediately upon its filing. If the review indicates that dating violence and abuse, stalking, or sexual assault exists, the court shall summons the parties to an evidentiary hearing not more than fourteen (14) days in the future. If the review indicates that such a basis does not exist, the court may consider an amended petition or dismiss the petition without prejudice.
    2. Service of the summons and hearing order under this subsection shall be made upon the adverse party personally and may be made in the manner and by the persons authorized to serve subpoenas under Rule 45.03 of the Rules of Civil Procedure. A summons may be reissued if service has not been made on the adverse party by the fixed court date and time.
    1. If the review under this section also indicates the presence of an immediate and present danger of dating violence and abuse, sexual assault, or stalking, the court shall, upon proper motion, issue ex parte a temporary interpersonal protective order that: (2) (a) If the review under this section also indicates the presence of an immediate and present danger of dating violence and abuse, sexual assault, or stalking, the court shall, upon proper motion, issue ex parte a temporary interpersonal protective order that:
      1. Authorizes relief appropriate to the situation utilizing the alternatives set out in KRS 456.060 ;
      2. Expires upon the conclusion of the evidentiary hearing required by this section unless extended or withdrawn by subsequent order of the court; and
      3. Does not order or refer the parties to mediation unless requested by the petitioner, and the court finds that:
        1. The petitioner’s request is voluntary and not the result of coercion; and
        2. Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the petitioner.
    2. If an order is not issued under this subsection, the court shall note on the petition, for the record, any action taken or denied and the reason for it.

HISTORY: 2015 ch. 102, § 22, effective January 1, 2016.

456.050. Hearing on petition for interpersonal protective order.

  1. Prior to or at a hearing on a petition for an interpersonal protective order:
    1. The court may obtain the respondent’s Kentucky criminal and protective order history and utilize that information to assess what relief and which sanctions may protect against danger to the petitioner or other person for whom protection is being sought, with the information so obtained being provided to the parties in accordance with the Rules of Civil Procedure; and
    2. If the petitioner or respondent is a minor, the court shall inquire whether the parties attend school in the same school system to assist the court in imposing conditions in the order that have the least disruption in the administration of education to the parties while providing appropriate protection to the petitioner.
    1. If the adverse party is not present at the hearing ordered pursuant to KRS 456.040 and has not been served, a previously issued temporary interpersonal protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. If service has not been made on the adverse party before that hearing or a subsequent hearing, the temporary interpersonal protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing. The court shall repeat the process of continuing the hearing and reissuing a new summons until the adverse party is served in advance of the scheduled hearing. If service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the court may continue the hearing no more than fourteen (14) days in the future. In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner. (2) (a) If the adverse party is not present at the hearing ordered pursuant to KRS 456.040 and has not been served, a previously issued temporary interpersonal protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future. If service has not been made on the adverse party before that hearing or a subsequent hearing, the temporary interpersonal protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing. The court shall repeat the process of continuing the hearing and reissuing a new summons until the adverse party is served in advance of the scheduled hearing. If service has not been made on the respondent at least seventy-two (72) hours prior to the scheduled hearing, the court may continue the hearing no more than fourteen (14) days in the future. In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner.
    2. The provisions of this section permitting the continuance of an interpersonal protective order shall be limited to six (6) months from the issuance of the temporary interpersonal protective order. If the respondent has not been served within that period, the order shall be rescinded without prejudice. Prior to the expiration of the temporary interpersonal protective order, the court shall provide notice to the petitioner stating that, if the petitioner does not file a new petition, the order shall be rescinded without prejudice.

HISTORY: 2015 ch. 102, § 23, effective January 1, 2016.

456.060. Ruing on petition for interpersonal protective order — Duration of order.

  1. Following a hearing ordered under KRS 456.040 , if a court finds by a preponderance of the evidence that dating violence and abuse, sexual assault, or stalking has occurred and may again occur, the court may issue an interpersonal protective order:
    1. Restraining the adverse party from:
      1. Committing further acts of dating violence and abuse, stalking, or sexual assault;
      2. Any unauthorized contact or communication with the petitioner or other person specified by the court;
      3. Approaching the petitioner or other person specified by the court within a distance specified in the order, not to exceed five hundred (500) feet;
      4. Going to or within a specified distance of a specifically described residence, school, or place of employment or area where such a place is located; and
      5. Disposing of or damaging any of the property of the parties;
    2. Directing or prohibiting any other actions that the court believes will be of assistance in eliminating future acts of dating violence and abuse, stalking, or sexual assault, except that the court shall not order the petitioner to take any affirmative action; and
    3. Directing that either or both of the parties receive counseling services available in the community in dating violence and abuse cases.
  2. In imposing a location restriction described in subsection (1)(a)4. of this section, the court shall:
    1. Afford the petitioner and respondent, if present, an opportunity to testify on the issue of the locations and areas from which the respondent should or should not be excluded;
    2. Only impose a location restriction where there is a specific, demonstrable danger to the petitioner or other person protected by the order;
    3. Specifically describe in the order the locations or areas prohibited to the respondent; and
    4. Consider structuring a restriction so as to allow the respondent transit through an area if the respondent does not interrupt his or her travel to harass, harm, or attempt to harass or harm the petitioner.
  3. An interpersonal protective order shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for subsequent periods of up to three (3) years each. The fact that an order has not been violated since its issuance may be considered by a court in hearing a request for a reissuance of the order.

HISTORY: 2015 ch. 102, § 24, effective January 1, 2016.

NOTES TO DECISIONS

1.Generally.

For an individual to be granted an interpersonal protective order for stalking, he or she must at a minimum prove by a preponderance of the evidence that, an individual intentionally engaged in two or more acts directed at the victim that seriously alarmed, annoyed, intimidated, or harassed the victim, that served no legitimate purpose, and would have caused a reasonable person to suffer substantial mental distress, and that these acts may occur again. Ky. Rev. Stat. Ann. §§ 508.130 and 456.060 . Additionally, the individual must prove that there was an implicit or explicit threat by the perpetrator that put the victim in reasonable fear of sexual contact, physical injury, or death. Ky. Rev. Stat. Ann. § 508.150 . Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

2.Evidence.

Circuit court clearly erred in entering an interpersonal protective order against appellant where appellee's alleged fear that appellant would intentionally go to places where he was in order to have him arrested for violating a domestic violence order and his jealousy of appellant's new relationship did not meet the elements of stalking. Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

Circuit court properly entered an interpersonal protective order in favor of the victim based on her brother-in laws’ attempted sexual assault, stalking, and third degree sexual abuse after her husband’s death because the brother-in-law’s manner of touching, his prior words and actions, as well as the timeframe in which the incident occurred supported the family court’s findings, there was no legitimate purpose for the brother-in-law’s conduct, and the entire incident, including the brother-in-law’s earlier text messages, occurred over a period of less than 24 hours. Jones v. Jones, 617 S.W.3d 418, 2021 Ky. App. LEXIS 5 (Ky. Ct. App. 2021).

Cited in:

Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

456.070. When protective order becomes effective and binding on respondent — Mutual protective orders — Petition hearing testimony later admissible only for impeachment purposes — Interpersonal protective order intake center.

  1. A temporary or ordinary interpersonal protective order shall become effective and binding on the respondent when the respondent is given notice of the existence and terms of the order by a peace officer or the court or upon personal service of the order, whichever is earlier. A peace officer or court giving notice of an unserved order shall make all reasonable efforts to arrange for the order’s personal service upon the respondent. Once effective, a peace officer or the court may enforce the order’s terms and act immediately upon their violation.
  2. Costs, fees, or bond shall not be assessed against or required of a petitioner for any filing, hearing, service, or order authorized by or required to implement this chapter.
  3. A court shall not require mediation, conciliation, or counseling prior to or as a condition of issuing an interpersonal protective order.
  4. Mutual protective orders may be issued only if:
    1. Separate petitions have been filed by both parties; and
    2. The orders are written with sufficient specificity to allow any peace officer to identify which party has violated the order.
  5. Upon proper filing of a motion, either party may seek to amend an interpersonal protective order.
  6. Testimony offered by an adverse party in a hearing ordered pursuant to KRS 456.040 shall not be admissible in any criminal proceeding involving the same parties except for purposes of impeachment.
    1. The Court of Justice, county and Commonwealth’s attorneys, law enforcement agencies, and victim services organizations may jointly operate an interpersonal protective order intake center to assist persons who apply for relief under this chapter. (7) (a) The Court of Justice, county and Commonwealth’s attorneys, law enforcement agencies, and victim services organizations may jointly operate an interpersonal protective order intake center to assist persons who apply for relief under this chapter.
    2. In cases where criminal conduct is alleged, a court may suggest that a petitioner voluntarily contact the county attorney. A court may not withhold or delay relief if the petitioner elects to not contact the county attorney.
  7. A person’s right to apply for relief under this chapter shall not be affected by that person leaving his or her residence to avoid dating violence and abuse, sexual assault, or stalking.
  8. A court shall order the omission or deletion of the petitioner’s address and the address of any minor children from any orders or documents to be made available to the public or to any person who engaged in the acts complained of in the petition.
    1. If a petition under this chapter did not result in the issuance of a non-temporary interpersonal protective order, the court in which the petition was heard may for good cause shown order the expungement of the records of the case if: (10) (a) If a petition under this chapter did not result in the issuance of a non-temporary interpersonal protective order, the court in which the petition was heard may for good cause shown order the expungement of the records of the case if:
      1. Six (6) months have elapsed since the case was dismissed; and
      2. During the six (6) months preceding the expungement request, the respondent has not been bound by an order of protection issued for the protection of any person, including an order of protection as defined in KRS 403.720 .
    2. As used in this subsection, “expungement” has the same meaning as in KRS 431.079 .

HISTORY: 2015 ch. 102, § 25, effective January 1, 2016.

NOTES TO DECISIONS

1.Applicability.

Ky. Rev. Stat. Ann. § 456.070(6) was interpreted as applying to juvenile delinquency proceedings as those proceedings had criminal conviction style consequences. Doe v. Ramey, 2020 Ky. App. LEXIS 45 (Ky. Ct. App. Apr. 17, 2020).

2.Warnings.

In all interpersonal protection orders, whether the respondent was an adult or a minor, the respondent was entitled to an appropriate warning about the effect of testifying in accordance with Ky. Rev. Stat. Ann. § 456.070(6). Doe v. Ramey, 2020 Ky. App. LEXIS 45 (Ky. Ct. App. Apr. 17, 2020).

456.080. Disclosure of interpersonal protective orders upon filing KRS Chapter 403 action.

If the petitioner or respondent to an interpersonal protective order initiates an action under KRS Chapter 403, the party initiating the action shall make known to the court the existence and status of any interpersonal protective orders, which shall remain effective and enforceable until superseded by order of the court in which the KRS Chapter 403 case is filed.

HISTORY: 2015 ch. 102, § 26, effective January 1, 2016.

456.090. Law enforcement to assist protective order petitioner and victim of dating violence and abuse, sexual assault, or stalking — Statewide enforcement — Civil and criminal immunity.

  1. A court issuing an interpersonal protective order shall direct the appropriate law enforcement agency to assist the petitioner in having the provisions of the order complied with.
  2. When a law enforcement officer has reason to suspect that a person has been the victim of dating violence and abuse, sexual assault, or stalking, the officer shall use all reasonable means to provide assistance to the victim, including but not limited to:
    1. Remaining at the location of the call for assistance so long as the officer reasonably suspects there is danger to the physical safety of individuals there without the presence of a law enforcement officer;
    2. Assisting the victim in obtaining medical treatment, including transporting the victim to the nearest medical facility capable of providing the necessary treatment; and
    3. Advising the victim immediately of the rights available to them, including the provisions of this chapter.
  3. Orders of protection shall be enforced in any county of the Commonwealth.
  4. Officers acting in good faith under this chapter shall be immune from criminal and civil liability.

HISTORY: 2015 ch. 102, § 27, effective January 1, 2016.

456.100. Amendment of interpersonal protective order to require participation in global positioning monitoring system.

  1. Upon a petitioner’s request and after an evidentiary hearing, a court may amend an interpersonal protective order to require a respondent to participate in a global positioning monitoring system if:
    1. The respondent has committed a substantial violation of a previously entered interpersonal protective order;
    2. The court has reviewed an updated history of the respondent’s Kentucky criminal and protective order history; and
    3. The court makes a factual determination that the use of a global positioning monitoring system would increase the petitioner’s safety.
  2. An order requiring participation in a global positioning monitoring system shall:
    1. Require the respondent to pay the cost of participation up to the respondent’s ability to pay, with the system operator bearing any uncovered costs for indigent respondents;
    2. State with specificity the locations or areas where the respondent is prohibited from being located or persons with whom the respondent shall have no contact;
    3. Include the date that the order expires, which shall be no longer than the expiration date of the underlying interpersonal protective order, although participation may be extended if the underlying order is extended;
    4. Require the entity that operates the monitoring system to immediately notify the petitioner, the local law enforcement agency named in the order, and the court if a respondent violates the order; and
    5. Include any other information as the court deems appropriate.
  3. The Administrative Office of the Courts shall prepare a publicly available informational pamphlet containing information on the method of applying for, hearing, amending, and terminating an order requiring participation in a global positioning monitoring system.
    1. The Supreme Court may establish by rule a sliding scale of payment responsibility for indigent defendants for use in establishing required payments under subsection (2) of this section. (4) (a) The Supreme Court may establish by rule a sliding scale of payment responsibility for indigent defendants for use in establishing required payments under subsection (2) of this section.
    2. A person, county, or other organization may voluntarily agree to pay all or a portion of a respondent’s monitoring costs specified in this section.
  4. An order requiring participation in a global positioning monitoring system may be shortened or vacated by the court either:
    1. Upon request of the petitioner; or
    2. Upon request of the respondent after an evidentiary hearing, if the respondent has not violated the order and:
      1. Three (3) months have elapsed since the entry of the order; and
      2. No previous request has been made by the respondent in the previous six (6) months.
  5. A respondent who fails to wear, removes, tampers with, or destroys a global positioning monitoring system device in contravention of an order entered under this section shall be guilty of a Class D felony.

HISTORY: 2015 ch. 102, § 28, effective January 1, 2016.

456.110. Entry of forms, affidavits, and orders of protection into Law Information Network of Kentucky.

  1. All forms, affidavits, and orders of protection issued or filed pursuant to this chapter which require entry into the Law Information Network of Kentucky shall be entered on forms prescribed by the Administrative Office of the Courts after consultation with the Justice and Public Safety Cabinet. If the provisions of an interpersonal protective order are contained in an order which is narrative in nature, the prescribed form shall be used in addition to the narrative order.
  2. The circuit clerk, in cooperation with the court, shall cause a copy of each summons or order issued pursuant to this chapter, or foreign protective order, fully completed and authenticated pursuant to this chapter, to be forwarded, by the most expedient means reasonably available and within twenty-four (24) hours following its filing with the clerk, to the appropriate agency designated for entry of interpersonal protective order records into the Law Information Network of Kentucky and to the agency assigned service. Any order or court record superseding, modifying, or otherwise affecting the status of an earlier summons or order shall likewise be forwarded by the circuit clerk to the appropriate Law Information Network of Kentucky entering agency and to the agency assigned service, if service is required. The clerk and the court shall comply with all provisions and guidelines of the Law Information Network of Kentucky for entry of the records.
  3. Each agency designated for entry of summonses and orders issued pursuant to this chapter, or foreign protective orders authenticated pursuant to this chapter, into the Law Information Network of Kentucky shall, consistent with the provisions and guidelines of the Law Information Network of Kentucky, enter the records immediately upon receipt of copies forwarded to the agency in accordance with subsection (2) of this section.

HISTORY: 2015 ch. 102, § 29, effective January 1, 2016.

456.120. Foreign protective orders.

  1. All foreign protective orders shall have the rebuttable presumption of validity. The validity of a foreign protective order shall only be determined by a court of competent jurisdiction. Until a foreign protective order is declared to be invalid by a court of competent jurisdiction, it shall be given full faith and credit by all peace officers and courts in the Commonwealth.
  2. All peace officers shall treat a foreign protective order as a legal document valid in Kentucky, and shall make arrests for a violation thereof in the same manner as for a violation of an order of protection issued in Kentucky.
  3. The fact that a foreign protective order has not been entered into the Law Information Network of Kentucky shall not be grounds for a peace officer not to enforce the provisions of the order unless it is readily apparent to the peace officer to whom the order is presented that the order has either expired according to a date shown on the order, or that the order’s provisions clearly do not prohibit the conduct being complained of. Officers acting in good faith shall be immune from criminal and civil liability.
  4. If the order has expired or its provisions do not prohibit the conduct being complained of, the officer shall not make an arrest unless the provisions of a Kentucky statute have been violated, in which case the peace officer shall take the action required by Kentucky law.
  5. Civil proceedings and criminal proceedings for violation of a foreign protective order for the same violation of the protective order shall be mutually exclusive. Once either proceeding has been initiated, the other shall not be undertaken, regardless of the outcome of the original proceeding.

HISTORY: 2015 ch. 102, § 30, effective January 1, 2016.

456.130. Information required in interpersonal protective order to assist in full faith and credit determination.

  1. In order to assist a court of another state in determining whether an order issued under this chapter is entitled to full faith and credit pursuant to 18 U.S.C. sec. 2265 :
    1. All interpersonal protective orders shall include a statement certifying that the issuing court had jurisdiction over the parties and the matter, and that reasonable notice and opportunity to be heard has been given to the person against whom the order is sought sufficient to protect that person’s right to due process; and
    2. All temporary interpersonal protective orders shall include a statement certifying that notice and opportunity to be heard has been provided within the time required by state law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.
  2. The Administrative Office of the Courts shall prescribe the form to be used for the purposes of this section.

HISTORY: 2015 ch. 102, § 31, effective January 1, 2016.

456.140. Filing copy of foreign protective order — Effect — Required affidavit — Certification by issuing court — Uncertified order.

  1. A copy of a foreign protective order may be filed in the office of the clerk of any court of competent jurisdiction of this state. A foreign protective order so filed shall have the same effect and shall be enforced in the same manner as an interpersonal protective order issued by a court of this state.
    1. At the time of the filing of the foreign protective order, the person filing the order shall file with the clerk of the court an affidavit on a form prescribed and provided by the Administrative Office of the Courts. The affidavit shall set forth the name, city, county, and state or other jurisdiction of the issuing court. The person shall certify in the affidavit the validity and status of the foreign protective order, and attest to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed. (2) (a) At the time of the filing of the foreign protective order, the person filing the order shall file with the clerk of the court an affidavit on a form prescribed and provided by the Administrative Office of the Courts. The affidavit shall set forth the name, city, county, and state or other jurisdiction of the issuing court. The person shall certify in the affidavit the validity and status of the foreign protective order, and attest to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. All foreign protective orders presented with a completed and signed affidavit shall be accepted and filed.
    2. The affidavit signed by the applicant shall have space where the reviewing judge shall place information necessary to allow the order’s entry into the Law Information Network of Kentucky in the same manner as a Kentucky order.
    1. If the person seeking to file the order presents a copy of the foreign protective order which is current by the terms of the order and has been certified by the clerk or other authorized officer of the court which issued it, the circuit clerk shall present it to the District Judge or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall not be subject to further verification and shall be accepted as authentic, current, and subject to full faith and credit. (3) (a) If the person seeking to file the order presents a copy of the foreign protective order which is current by the terms of the order and has been certified by the clerk or other authorized officer of the court which issued it, the circuit clerk shall present it to the District Judge or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall not be subject to further verification and shall be accepted as authentic, current, and subject to full faith and credit.
    2. If the order presented is current by the terms of the order but is not certified in the manner specified in paragraph (a) of this subsection, the circuit clerk shall present the order and the affidavit to the District or Circuit Judge, who shall read the order and enter on the affidavit the information necessary to allow the order’s entry into the Law Information Network of Kentucky. The order shall be subject to full faith and credit in the same manner as a Kentucky interpersonal protective order, but shall be subject to verification by the circuit clerk. The order shall be valid for a period of fourteen (14) days and may be renewed once for a period of fourteen (14) days if the circuit clerk has not received a certified copy of the order from the issuing jurisdiction. The clerk shall treat the foreign protective order in the same manner as an interpersonal protective order of this state issued pursuant to KRS 456.060 , except that no service on the adverse party shall be required pursuant to 18 U.S.C. sec. 2265 .
    3. Upon the filing of an uncertified foreign protective order, the circuit clerk shall, within two (2) business days, contact the issuing court to request a certified copy of the order. If the certified copy of the order is received by the circuit clerk within the initial fourteen (14) day period, the clerk shall cause the information that certification has been received to be entered into the Law Information Network of Kentucky and shall notify the applicant for the order of the fact of its certification. A facsimile copy of a certified foreign protective order shall be grounds for the issuance of an interpersonal protective order.
    4. If the clerk has not received a certified copy of the foreign protective order within ten (10) days, the clerk shall notify the court and the applicant that the order has not been received. The notice to the applicant, on a form prepared by the Administrative Office of the Courts, shall state that the foreign protective order will be extended for another fourteen (14) days, but will be dismissed at the expiration of that time. If the clerk informs the judge in writing that the certified foreign protective order has been requested but has not yet been received, the judge shall extend the foreign protective order for a period of fourteen (14) days. If certification of the foreign protective order is not received within twenty-eight (28) days, the foreign protective order shall expire and shall not be reissued. If the applicant meets the qualifications for the issuance of a Kentucky interpersonal protective order, the court may, upon proper application and showing of evidence, issue a Kentucky order in accordance with this chapter.
  2. The right of a person filing a foreign protective order to bring an action to enforce the order instead of proceeding under this chapter remains unimpaired.

HISTORY: 2015 ch. 102, § 32, effective January 1, 2016.

456.150. Authentication of foreign protective order.

  1. Upon ex parte review of the foreign protective order and the affidavit filed pursuant to KRS 456.140 , and after determining the order is entitled to full faith and credit in this Commonwealth pursuant to 18 U.S.C. sec. 2265 , the court shall declare the order to be authenticated and record the finding on the affidavit.
  2. If the court declares the order to be authenticated, the court shall:
    1. Direct the appropriate law enforcement agency to assist the petitioner in having the provisions of the order complied with, if applicable; and
    2. Order its enforcement in any county of the Commonwealth in the same manner as an interpersonal protective order of this state issued pursuant to KRS 456.060 .
  3. The clerk shall notify the person who filed the foreign protective order of the decision of the court and provide the person a certified copy of the affidavit declaring the authentication of the order.

HISTORY: 2015 ch. 102, § 33, effective January 1, 2016.

456.160. Clearing of foreign protective order as active record form Law Information Network of Kentucky.

  1. A foreign protective order which has been entered into the Law Information Network of Kentucky shall be immediately cleared as an active record from the computer system when:
    1. The order expires according to the terms contained therein;
    2. A Kentucky court notifies the Law Information Network of Kentucky that a foreign protective order has been dismissed, either by court order or entry of notification by a circuit clerk; or
    3. A circuit clerk notifies the Law Information Network of Kentucky that a foreign protective order tendered to the clerk has not been authenticated in the time period specified in KRS 456.140 .
  2. For validation purposes, the Law Information Network of Kentucky shall provide the circuit court clerk with a printout of foreign protective orders. The clerk shall validate each order annually by contacting the original issuing court or jurisdiction. If the clerk has not received information from the foreign jurisdiction within thirty-one (31) days, the clerk shall cause those orders to be cleared from the Law Information Network of Kentucky.

HISTORY: 2015 ch. 102, § 34, effective January 1, 2016.

456.170. Notice to court of foreign protective order’s expiration, vacation, modification, or other change.

  1. A person who has filed a foreign protective order in a court in Kentucky is under a continuing obligation to inform the court of any expiration, vacation, modification, or other change in the order which the person filing the order has received from the issuing foreign court.
  2. A person who has filed a foreign protective order in a court in Kentucky shall, within two (2) working days of the occurrence of any event specified in subsection (1) of this section, notify the clerk of the court in which the foreign protective order was filed of the fact of the changed order and present the clerk with a copy of the order for authentication as provided in this chapter. The clerk shall immediately notify the Law Information Network of Kentucky entering agency of the modification.
  3. No court in Kentucky and no peace officer in Kentucky shall be expected to enforce a provision of a foreign protective order which has been the subject of any action specified in subsection (1) of this section, unless proper notice has been given in accordance with this section.
  4. Intentional failure of a person who has filed a foreign protective order to make the notifications required by this section in the manner required by this section shall constitute contempt of court and may be grounds for an appropriate civil action brought by any person damaged by the intentional act of omission by the person failing to act.

HISTORY: 2015 ch. 102, § 35, effective January 1, 2016.

456.180. Violation of order of protection.

  1. Violation of the terms or conditions of an order of protection after the person has been served or given notice of the order shall constitute contempt of court and a criminal offense under this section. Once a criminal or contempt proceeding has been initiated, the other shall not be undertaken regardless of the outcome of the original proceeding.
    1. Court proceedings for contempt of court for violation of an order of protection shall be held in the county where the order was issued or filed. (2) (a) Court proceedings for contempt of court for violation of an order of protection shall be held in the county where the order was issued or filed.
    2. Court proceedings for a criminal violation of an order of protection shall follow the rules of venue applicable to criminal cases generally.
  2. Nothing in this section shall preclude the Commonwealth from prosecuting and convicting the respondent of criminal offenses other than violation of an order of protection.
    1. A person is guilty of a violation of an order of protection when he or she intentionally violates the provisions of an interpersonal protective order after the person has been served or given notice of the order. (4) (a) A person is guilty of a violation of an order of protection when he or she intentionally violates the provisions of an interpersonal protective order after the person has been served or given notice of the order.
    2. Violation of an order of protection is a Class A misdemeanor.

HISTORY: 2015 ch. 102, § 36, effective January 1, 2016.

CHAPTER 457 Uniform Power of Attorney Act (2006)

457.010. Short tile.

This chapter may be cited as the Uniform Power of Attorney Act (2006).

HISTORY: 2018 ch. 185, § 1, effective July 14, 2018.

457.020. Definitions of chapter.

As used in this chapter:

  1. “Agent”  means a person granted authority to act for a principal under a power  of attorney, whether denominated an agent, attorney-in-fact, or otherwise.  The term includes an original agent, coagent, successor agent, and  a person to which an agent’s authority is delegated;
  2. “Durable,”  with respect to a power of attorney, means not terminated by the principal’s  incapacity;
  3. “Electronic” means relating  to technology having electrical, digital, magnetic, wireless, optical,  electromagnetic, or similar capabilities;
  4. “Good faith” means honesty  in fact;
  5. “Incapacity” means inability  of an individual to manage property or business affairs because the  individual:
    1. Has an impairment in the ability to  receive and evaluate information or make or communicate decisions  even with the use of technological assistance; or
    2. Is:
      1. Missing;
      2. Detained, including incarcerated in a  penal system; or
      3. Outside the United States and unable  to return;
  6. “Person” means an individual,  corporation, business trust, estate, trust, partnership, limited liability  company, association, joint venture, public corporation, government  or governmental subdivision, agency, or instrumentality, or any other  legal or commercial entity;
  7. “Power of attorney” means  a writing or other record that grants authority to an agent to act  in the place of the principal, whether or not the term power of attorney  is used;
  8. “Principal” means an  individual who grants authority to an agent in a power of attorney;
  9. “Property” means anything  that may be the subject of ownership, whether real or personal, or  legal or equitable, or any interest or right therein;
  10. “Record” means information  that is inscribed on a tangible medium or that is stored in an electronic  or other medium and is retrievable in perceivable form;
  11. “Sign” means, with present  intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol;  or
    2. To attach to or logically associate  with the record an electronic sound, symbol, or process;
  12. “State” means a state  of the United States, the District of Columbia, Puerto Rico, the United  States Virgin Islands, or any territory or insular possession subject  to the jurisdiction of the United States; and
  13. “Stocks and bonds” means  stocks, bonds, mutual funds, and all other types of securities and  financial instruments, whether held directly, indirectly, or in any  other manner. The term does not include commodity futures contracts  and call or put options on stocks or stock indexes.

HISTORY: 2018 ch. 185, § 2, effective July 14, 2018.

457.030. Applicability.

This chapter applies to all powers of attorney except:

  1. A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;
  2. A power to make health-care decisions including but not limited to health-care decisions outlined in KRS 311.621 to 311.643 , unless the power of attorney otherwise provides;
  3. Proxy or other delegation to exercise voting rights or management rights with respect to an entity, unless the power of attorney otherwise provides;
  4. A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose, unless the power of attorney otherwise provides;
  5. A power for reciprocal insurers as detailed in Subtitle 27 of KRS Chapter 304;
  6. A power given by a member of the United States Armed Forces, a person serving as a merchant seaman, or a person outside the United States in connection with war activities as detailed in KRS Chapter 384;
  7. A power for the temporary delegation of parental rights as detailed in KRS 403.352 and 403.353 ; and
  8. A power granted to a motor vehicle dealer licensed pursuant to KRS 190.030 , or an authorized insurer in this state, or the insurer’s agent, for the purpose of facilitating the transfer of ownership or title to a motor vehicle, regardless of whether such power is an original, photocopy, or facsimile.

HISTORY: 2018 ch. 185, § 3, effective July 14, 2018; 2020 ch. 41, § 41, effective July 15, 2020.

457.040. Power of attorney is durable.

A power of attorney created under this chapter is durable unless it expressly provides that it is terminated by the incapacity of the principal.

HISTORY: 2018 ch. 185, § 4, effective July 14, 2018.

457.050. Execution of power of attorney.

  1. A power of attorney shall be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney. If signed in the principal’s conscious presence by another individual, the reason for this method of signing shall be stated in the power of attorney.
  2. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.

HISTORY: 2018 ch. 185, § 5, effective July 14, 2018; 2020 ch. 41, § 42, effective July 15, 2020.

457.060. Validity of power attorney.

  1. A power of attorney  executed in this state on or after July 14, 2018 is valid if its execution  complies with KRS 457.050 .
  2. A power of attorney  executed in this state before July 14, 2018, is valid if its execution  complied with the law of this state as it existed at the time of execution.
  3. A power of attorney executed other  than in this state is valid in this state if, when the power of attorney  was executed, the execution complied with:
    1. The law of the jurisdiction that determines  the meaning and effect of the power of attorney pursuant to KRS 457.070 ; or
    2. The requirements for a military power  of attorney pursuant to 10 U.S.C. sec. 1044 b, as  amended.
  4. Except as otherwise provided by statute,  a photocopy or electronically transmitted copy of an original power  of attorney has the same effect as the original.
  5. Except as otherwise provided by statute,  a power of attorney that complies with this chapter is valid.

HISTORY: 2018 ch. 185, § 6, effective July 14, 2018.

457.070. Meaning and effect of power of attorney.

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

HISTORY: 2018 ch. 185, § 7, effective July 14, 2018.

457.080. Nomination of conservator or guardian — Relation of agent to court-appointed fiduciary.

  1. In a power of attorney,  a principal may nominate a limited conservator, conservator, limited  guardian, or guardian of the principal’s estate or a limited  guardian or guardian of the principal’s person for consideration  by the court if protective proceedings for the principal’s  estate or person are begun after the principal executes the power  of attorney. As outlined in KRS 387.600 ,  the nomination shall be treated as an indication of the principal’s  preference as to the person or entity to be appointed as his or her  limited conservator, conservator, limited guardian, or guardian, and  the court shall give the preference due consideration.
  2. If, after a principal  executes a power of attorney, a court appoints a limited conservator,  conservator, limited guardian, or guardian of the principal’s  estate or other fiduciary charged with the management of some or all  of the principal’s property, the power of attorney shall terminate  unless the court specifically provides that it shall remain in effect.

HISTORY: 2018 ch. 185, § 8, effective July 14, 2018.

457.090. When power of attorney effective.

  1. A power of attorney  is effective when executed unless the principal provides in the power  of attorney that it becomes effective at a future date or upon the  occurrence of a future event or contingency.
  2. If a power of attorney  becomes effective upon the occurrence of a future event or contingency,  the principal, in the power of attorney, may authorize one (1) or  more persons to determine in a writing or other record that the event  or contingency has occurred.
  3. If a power of attorney becomes effective  upon the principal’s incapacity and the principal has not authorized  a person to determine whether the principal is incapacitated, or the  person authorized is unable or unwilling to make the determination,  the power of attorney becomes effective upon a determination in a  writing or other record by:
    1. A physician, an advanced practice registered  nurse, a psychologist licensed or certified under the provisions of  KRS Chapter 319, or a person licensed or certified as a social worker  or an employee of the Cabinet for Health and Family Services who meets  the qualifications of KRS 335.080(1)(a), (b), and (c) or 335.090(1)(a), (b), and (c), that the principal is incapacitated within the meaning  of KRS 457.020(5)(a); or
    2. An attorney-at-law or a judge that  the principal is incapacitated within the meaning of KRS 457.020(5)(b).
  4. A person authorized by the principal  in the power of attorney to determine that the principal is incapacitated  may act as the principal’s personal representative pursuant  to the Health Insurance Portability and Accountability Act, Sections  1171 to 1179 of the Social Security Act, 42 U.S.C. sec. 1320 d, as amended, and applicable regulations, to obtain access  to the principal’s health-care information and communicate  with the principal’s health-care provider for the sole purpose  of determining whether the principal is incapacitated, unless the  power of attorney otherwise provides.

HISTORY: 2018 ch. 185, § 9, effective July 14, 2018.

457.100. Termination of power of attorney or agent’s authority.

  1. A power of attorney  terminates when:
    1. The principal dies;
    2. The principal becomes incapacitated,  if the power of attorney is not durable;
    3. A court appoints a limited conservator,  conservator, limited guardian, or guardian of the principal’s  estate or other fiduciary charged with the management of some or all  of the principal’s property, unless the court specifically  provides that the power of attorney shall remain in effect;
    4. The principal revokes the power of  attorney or, if the power of attorney was filed, the principal revokes  the power of attorney in accordance with KRS 382.370 ;
    5. The power of attorney provides that  it terminates;
    6. For a power of attorney that specifically  states a purpose, the purpose of the power of attorney is accomplished;  or
    7. The principal revokes the agent’s  authority or the agent dies, becomes incapacitated, or resigns, and  the power of attorney does not provide for another agent to act under  the power of attorney.
  2. An agent’s authority terminates  when:
    1. The principal revokes the authority;
    2. The agent dies, becomes incapacitated,  or resigns;
    3. An action is filed for the dissolution  or annulment of the agent’s marriage to the principal or their  legal separation, unless the power of attorney otherwise provides;  or
    4. The power of attorney terminates.
  3. Unless the power of attorney otherwise  provides, an agent’s authority is exercisable until the authority  terminates under subsection (2) of this section, notwithstanding a  lapse of time since the execution of the power of attorney.
  4. Termination of an agent’s authority  or of a power of attorney is not effective as to the agent or another  person that, without actual knowledge of the termination, acts in  good faith under the power of attorney. An act so performed, unless  otherwise invalid or unenforceable, binds the principal and the principal’s  successors in interest.
  5. Incapacity of the principal of a power  of attorney that is not durable does not revoke or terminate the power  of attorney as to an agent or other person that, without actual knowledge  of the incapacity, acts in good faith under the power of attorney.  An act so performed, unless otherwise invalid or unenforceable, binds  the principal and the principal’s successors in interest.
  6. The execution of a power of attorney  does not revoke a power of attorney previously executed by the principal  unless the subsequent power of attorney provides that the previous  power of attorney is revoked or that all other powers of attorney  are revoked.

HISTORY: 2018 ch. 185, § 10, effective July 14, 2018.

457.110. Coagents and successor agents.

  1. If a principal designates  two (2) or more persons to act as coagents, each coagent may exercise  its authority independently unless the power of attorney otherwise  provides.
  2. A principal may designate  one (1) or more successor agents to act if an agent resigns, dies,  becomes incapacitated, is not qualified to serve, or declines to serve.  A principal may grant authority to designate one (1) or more successor  agents to an agent or other person designated by name, office, or  function. Unless the power of attorney otherwise provides, a successor  agent:
    1. Has the same authority as that granted  to the original agent; and
    2. May not act until all predecessor agents  have resigned, died, become incapacitated, are no longer qualified  to serve, or have declined to serve.
  3. Except as otherwise provided in the  power of attorney and subsection (4) of this section, an agent that  does not participate in or conceal a breach of fiduciary duty committed  by another agent, including a predecessor agent, is not liable for  the actions of the other agent.
  4. An agent that has actual knowledge  of a breach or imminent breach of fiduciary duty by another agent  of the same principal shall notify the principal and, if the principal  is incapacitated, take any action reasonably appropriate in the circumstances  to safeguard the principal’s best interest. An agent that fails  to notify the principal or take action as required by this subsection  is liable for the reasonably foreseeable damages that could have been  avoided if the agent had notified the principal or taken such action.

HISTORY: 2018 ch. 185, § 11, effective July 14, 2018.

457.120. Reimbursement and compensation of agent.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances.

HISTORY: 2018 ch. 185, § 12, effective July 14, 2018.

457.130. Agent’s acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

HISTORY: 2018 ch. 185, § 13, effective July 14, 2018.

457.140. Agent’s duties.

  1. Notwithstanding provisions  in the power of attorney, an agent that has accepted appointment shall:
    1. Act in accordance with  the principal’s reasonable expectations to the extent actually  known by the agent and, otherwise, in the principal’s best  interest;
    2. Act in good faith; and
    3. Act only within the scope of authority  granted in the power of attorney.
  2. Except as otherwise provided in the  power of attorney, an agent that has accepted appointment shall:
    1. Act loyally for the principal’s  benefit;
    2. Act so as not to create a conflict  of interest that impairs the agent’s ability to act impartially  in the principal’s best interest;
    3. Act with the care, competence, and  diligence ordinarily exercised by agents in similar circumstances;
    4. Keep a record of all receipts, disbursements,  and transactions made on behalf of the principal;
    5. Cooperate with a person that has authority  to make health-care decisions for the principal to carry out the principal’s  reasonable expectations to the extent actually known by the agent  and, otherwise, act in the principal’s best interest; and
    6. Attempt to preserve the principal’s  estate plan, to the extent actually known by the agent, if preserving  the plan is consistent with the principal’s best interest based  on all relevant factors, including:
      1. The value and nature of the principal’s  property;
      2. The principal’s foreseeable obligations  and need for maintenance;
      3. Minimization of taxes, including income,  estate, inheritance, generation-skipping transfer, and gift taxes;  and
      4. Eligibility for a benefit, a program,  or assistance under a statute or regulation.
  3. An agent that acts in good faith is  not liable to any beneficiary of the principal’s estate plan  for failure to preserve the plan.
  4. An agent that acts with care, competence,  and diligence for the best interest of the principal is not liable  solely because the agent also benefits from the act or has an individual  or conflicting interest in relation to the property or affairs of  the principal.
  5. If an agent is selected by the principal  because of special skills or expertise possessed by the agent or in  reliance on the agent’s representation that the agent has special  skills or expertise, the special skills or expertise must be considered  in determining whether the agent has acted with care, competence,  and diligence under the circumstances.
  6. Absent a breach of duty to the principal,  an agent is not liable if the value of the principal’s property  declines.
  7. An agent that exercises authority to  delegate to another person the authority granted by the principal  or that engages another person on behalf of the principal is not liable  for an act, error of judgment, or default of that person if the agent  exercises care, competence, and diligence in selecting and monitoring  the person.
  8. Except as otherwise provided in the  power of attorney, an agent is not required to disclose receipts,  disbursements, or transactions conducted on behalf of the principal  unless ordered by a court or requested by the principal, a guardian,  a conservator, another fiduciary acting for the principal, a governmental  agency having authority to protect the welfare of the principal, or,  upon the death of the principal, by the personal representative or  successor in interest of the principal’s estate. If so requested,  within thirty (30) days the agent shall comply with the request or  provide a writing or other record substantiating why additional time  is needed and shall comply with the request within an additional thirty  (30) days.

HISTORY: 2018 ch. 185, § 14, effective July 14, 2018.

457.150. Exoneration of agent.

A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal’s successors in interest except to the extent the provision:

  1. Relieves the agent of  liability for breach of duty committed dishonestly, with an improper  motive, or with reckless indifference to the purposes of the power  of attorney or the best interest of the principal; or
  2. Was inserted as a result  of an abuse of a confidential or fiduciary relationship with the principal.

HISTORY: 2018 ch. 185, § 15, effective July 14, 2018.

457.160. Judicial relief.

  1. The following persons  may petition a District Court to construe a power of attorney or review  the agent’s conduct, and grant appropriate relief:
    1. The principal or the  agent;
    2. A guardian, conservator, or other fiduciary  acting for the principal;
    3. A person authorized to make health-care  decisions for the principal;
    4. The principal’s spouse, parent,  or descendant;
    5. An individual who would qualify as  a presumptive heir of the principal;
    6. A person named as a beneficiary to  receive any property, benefit, or contractual right on the principal’s  death or as a beneficiary of a trust created by or for the principal  that has a financial interest in the principal’s estate;
    7. A governmental agency having regulatory  authority to protect the welfare of the principal;
    8. The principal’s caregiver or  another person that demonstrates sufficient interest in the principal’s  welfare; and
    9. A person asked to accept the power  of attorney.
  2. Upon motion by the principal, the court  shall dismiss a petition filed under this section, unless the court  finds that the principal lacks capacity to revoke the agent’s  authority or the power of attorney.

HISTORY: 2018 ch. 185, § 16, effective July 14, 2018.

457.170. Agent’s liability.

An agent that violates this chapter is liable to the principal or the principal’s successors in interest for the amount required to:

  1. Restore the value of  the principal’s property to what it would have been had the  violation not occurred; and
  2. Reimburse the principal  or the principal’s successors in interest for the attorney’s  fees and costs paid on the agent’s behalf.

HISTORY: 2018 ch. 185, § 17, effective July 14, 2018.

457.180. Agent’s resignation — Notice.

Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:

  1. To the conservator or  guardian, if one has been appointed for the principal, and a coagent  or successor agent; or
  2. If there is no person  described in subsection (1) of this section, to:
    1. The principal’s caregiver;
    2. Another person listed in the power  of attorney as having sufficient interest in the principal’s  welfare to receive the resignation; or
    3. A governmental agency having authority  to protect the welfare of the principal.

HISTORY: 2018 ch. 185, § 18, effective July 14, 2018.

457.190. Acceptance of and reliance upon acknowledged power of attorney.

  1. For purposes of this  section and KRS 457.200 , “acknowledged”  means purportedly verified before a notary public or other individual  authorized to take acknowledgements.
  2. A person that in good  faith accepts an acknowledged power of attorney without actual knowledge  that the signature is not genuine may rely upon the presumption under KRS 457.050 that the signature is genuine.
  3. A person that in good faith accepts  an acknowledged power of attorney without actual knowledge that the  power of attorney is void, invalid, or terminated, that the purported  agent’s authority is void, invalid, or terminated, or that  the agent is exceeding or improperly exercising the agent’s  authority may rely upon the power of attorney as if the power of attorney  were genuine, valid, and still in effect, the agent’s authority  were genuine, valid, and still in effect, and the agent had not exceeded  and had properly exercised the authority.
  4. A person that is asked to accept an  acknowledged power of attorney may request, and rely upon, without  further investigation:
    1. An agent’s certification under  penalty of perjury of any factual matter concerning the principal,  agent, or power of attorney;
    2. An English translation of the power  of attorney if the power of attorney contains, in whole or in part,  language other than English; and
    3. An opinion of counsel as to any matter  of law concerning the power of attorney if the person making the request  provides in a writing or other record the reason for the request.
  5. An English translation or an opinion  of counsel requested under this section must be provided at the principal’s  expense unless the request is made more than seven (7) business days  after the power of attorney is presented for acceptance.
  6. For purposes of this section and KRS 457.200 , a person that conducts activities through employees  is without actual knowledge of a fact relating to a power of attorney,  a principal, or an agent if the employee conducting the transaction  involving the power of attorney is without actual knowledge of the  fact.

HISTORY: 2018 ch. 185, § 19, effective July 14, 2018.

457.200. Liability for refusal to accept acknowledged power of attorney.

  1. Except as otherwise  provided in subsection (2) of this section:
    1. A person shall either  accept an acknowledged power of attorney or request a certification,  a translation, or an opinion of counsel under KRS 457.190(4) no later than seven (7) business days after presentation  of the power of attorney for acceptance;
    2. If a person requests a certification,  a translation, or an opinion of counsel under KRS 457.190(4), the person shall accept the power of attorney no later  than five (5) business days after receipt of the certification, translation,  or opinion of counsel; and
    3. A person may not require an additional  or different form of power of attorney for authority granted in the  power of attorney presented.
  2. A person is not required to accept  an acknowledged power of attorney if:
    1. The person is not otherwise required  to engage in a transaction with the principal in the same circumstances;
    2. Engaging in a transaction with the  agent or the principal in the same circumstances would be inconsistent  with federal law;
    3. The person has actual knowledge of  the termination of the agent’s authority or of the power of  attorney before exercise of the power;
    4. A request for a certification, a translation,  or an opinion of counsel under KRS 457.190(4) is refused;
    5. The person in good faith believes that  the power is not valid or that the agent does not have the authority  to perform the act requested, whether or not a certification, a translation,  or an opinion of counsel under KRS 457.190(4) has been requested or provided; or
    6. The person makes, or has actual knowledge  that another person has made, a report to the Cabinet for Health and  Family Services stating a good faith belief that the principal may  be subject to physical or financial abuse, neglect, exploitation,  or abandonment by the agent or a person acting for or with the agent.
  3. A person that refuses in violation  of this section to accept an acknowledged power of attorney is subject  to:
    1. A court order mandating acceptance  of the power of attorney; and
    2. Liability for reasonable attorney’s  fees and costs incurred in any action or proceeding that confirms  the validity of the power of attorney or mandates acceptance of the  power of attorney.
  4. A person that accepts a power of attorney  pursuant to this section shall not be liable for his or her good faith  reliance on the agent’s representation of the scope of authority  granted to the agent by the power of attorney. In addition, the person  shall not be responsible to determine or ensure the proper application  of funds or property by the agent.

HISTORY: 2018 ch. 185, § 20, effective July 14, 2018.

457.210. Principles of law and equity.

Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.

HISTORY: 2018 ch. 185, § 21, effective July 14, 2018.

457.220. Laws applicable to financial institutions and entities.

This chapter does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.

HISTORY: 2018 ch. 185, § 22, effective July 14, 2018.

457.230. Remedies under other law.

The remedies under this chapter are not exclusive and do not abrogate any right or remedy under the law of this state other than this chapter.

HISTORY: 2018 ch. 185, § 23, effective July 14, 2018.

457.240. Uniformity of application and construction. [Renumbered]

HISTORY: 2018 ch. 185, § 24, effective July 14, 2018; renumbered to § 457.440 , by 2020 ch. 41, § 63, effective July 15, 2020.

457.245. Authority that requires specific grant — Grant of general authority.

  1. An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
    1. Create, amend, revoke, or terminate an inter vivos trust;
    2. Make a gift;
    3. Create or change rights of survivorship;
    4. Create or change a beneficiary designation;
    5. Delegate authority granted under the power of attorney;
    6. Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
    7. Exercise fiduciary powers that the principal has authority to delegate; or
    8. Exercise authority over the content of electronic communications, as defined in 18 U.S.C. sec. 2510(12) , as amended, sent or received by the principal.
  2. Notwithstanding a grant of authority to do an act described in subsection (1) of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.
  3. Subject to subsections (1), (2), (4), and (5) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in KRS 457.270 to 457.390 .
  4. Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to KRS 457.400 .
  5. Subject to subsections (1), (2), and (4) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
  6. Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
  7. An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

HISTORY: 2020 ch. 41, § 43, effective July 15, 2020.

457.250. Relation to federal Electronic Signatures in Global and National Commerce Act. [Renumbered]

HISTORY: 2018 ch. 185, § 25, effective July 14, 2018; renumbered to § 457.450 , by 2020 ch. 41, § 64, effective July 15, 2020.

457.255. Incorporation of authority.

  1. An agent has authority described in this section and KRS 457.245 and 457.265 to 457.400 if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in KRS 457.270 to 457.390 or cites the section in which the authority is described.
  2. A reference in a power of attorney to general authority with respect to the descriptive term for a subject in KRS 457.270 to 457.390 or a citation to a section of KRS 457.270 to 457.390 incorporates the entire section as if it were set out in full in the power of attorney.
  3. A principal may modify authority incorporated by reference.

HISTORY: 2020 ch. 41, § 44, effective July 15, 2020.

457.260. Effect on existing powers of attorney. [Renumbered]

HISTORY: 2018 ch. 185, § 26, effective July 14, 2018; renumbered to § 457.460 , by 2020 ch. 41, § 65, effective July 15, 2020.

457.265. Construction of authority generally.

Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in KRS 457.270 to 457.390 or that grants to an agent authority to do all acts that a principal could do pursuant to KRS 457.245(3), a principal authorizes the agent, with respect to that subject, to:

  1. Demand, receive, and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;
  2. Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;
  3. Execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;
  4. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
  5. Seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
  6. Engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;
  7. Prepare, execute, and file a record, report, or other document to safeguard or promote the principal’s interest under a statute or regulation;
  8. Communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;
  9. Access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means; and
  10. Do any lawful act with respect to the subject and all property related to the subject.

HISTORY: 2020 ch. 41, § 45, effective July 15, 2020.

457.270. Real property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

  1. Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
  2. Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
  3. Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  4. Release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;
  5. Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
    1. Insuring against liability or casualty or other loss;
    2. Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
    3. Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and
    4. Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
  6. Use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
  7. Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
    1. Selling or otherwise disposing of them;
    2. Exercising or selling an option, right of conversion, or similar right with respect to them; and
    3. Exercising any voting rights in person or by proxy;
  8. Change the form of title of an interest in or right incident to real property; and
  9. Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

HISTORY: 2020 ch. 41, § 46, effective July 15, 2020.

457.280. Tangible personal property.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

  1. Demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
  2. Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or , otherwise dispose of tangible personal property or an interest in tangible personal property;
  3. Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  4. Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;
  5. Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
    1. Insuring against liability or casualty or other loss;
    2. Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
    3. Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;
    4. Moving the property from place to place;
    5. Storing the property for hire or on a gratuitous bailment; and
    6. Using and making repairs, alterations, or improvements to the property; and
  6. Change the form of title of an interest in tangible personal property.

HISTORY: 2020 ch. 41, § 47, effective July 15, 2020.

457.290. Stocks and bonds.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

  1. Buy, sell, and exchange stocks and bonds;
  2. Establish, continue, modify, or terminate an account with respect to stocks and bonds;
  3. Pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;
  4. Receive certificates and other evidences of ownership with respect to stocks and bonds; and
  5. Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.

HISTORY: 2020 ch. 41, § 48, effective July 15, 2020.

457.300. Commodities and options.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

  1. Buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and
  2. Establish, continue, modify, and terminate option accounts.

HISTORY: 2020 ch. 41, § 49, effective July 15, 2020.

457.310. Banks and other financial institutions.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:

  1. Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;
  2. Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;
  3. Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
  4. Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
  5. Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;
  6. Enter a safe deposit box or vault and withdraw or add to the contents;
  7. Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
  8. Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;
  9. Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title whether tangible or electronic, or other negotiable or nonnegotiable instrument;
  10. Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
  11. Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

HISTORY: 2020 ch. 41, § 50, effective July 15, 2020.

457.320. Operation of entity or business.

Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

  1. Operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
  2. Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;
  3. Enforce the terms of an ownership agreement;
  4. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;
  5. Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;
  6. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;
  7. With respect to an entity or business owned solely by the principal:
    1. Continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
    2. Determine:
      1. The location of its operation;
      2. The nature and extent of its business;
      3. The methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;
      4. The amount and types of insurance carried; and
      5. The mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;
    3. Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
    4. Demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
  8. Put additional capital into an entity or business in which the principal has an interest;
  9. Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;
  10. Sell or liquidate all or part of an entity or business;
  11. Establish the value of an entity or business under a buy-out agreement to which the principal is a party;
  12. Prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments; and
  13. Pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

HISTORY: 2020 ch. 41, § 51, effective July 15, 2020.

457.330. Insurance and annuities.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

  1. Continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
  2. Procure new, different, and additional contracts of insurance and annuities for the principal and the principal’s spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;
  3. Pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;
  4. Apply for and receive a loan secured by a contract of insurance or annuity;
  5. Surrender and receive the cash surrender value on a contract of insurance or annuity;
  6. Exercise an election;
  7. Exercise investment powers available under a contract of insurance or annuity;
  8. Change the manner of paying premiums on a contract of insurance or annuity;
  9. Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;
  10. Apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
  11. Collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;
  12. Elect the form and timing of the payment of proceeds from a contract of insurance or annuity; and
  13. Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

HISTORY: 2020 ch. 41, § 52, effective July 15, 2020.

457.340. Estates, trusts, and other beneficial interests.

  1. In this section, “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests authorizes the agent to:
    1. Accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;
    2. Demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;
    3. Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;
    4. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;
    5. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;
    6. Conserve, invest, disburse, or use anything received for an authorized purpose;
    7. Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor; and
    8. Reject, renounce, disclaim, release, or consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.

HISTORY: 2020 ch. 41, § 53, effective July 15, 2020.

457.350. Claims and litigation.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

  1. Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;
  2. Bring an action to determine adverse claims or intervene or otherwise participate in litigation;
  3. Seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
  4. Make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination, and bind the principal in litigation;
  5. Submit to alternative dispute resolution, settle, and propose or accept a compromise;
  6. Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;
  7. Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;
  8. Pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and
  9. Receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

HISTORY: 2020 ch. 41, § 54, effective July 15, 2020.

457.360. Personal and family maintenance.

  1. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:
    1. Perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, and the following individuals, whether living when the power of attorney is executed or later born:
      1. The principal’s children;
      2. Other individuals legally entitled to be supported by the principal; and
      3. The individuals whom the principal has customarily supported or indicated the intent to support;
    2. Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
    3. Provide living quarters for the individuals described in paragraph (a) of this subsection by:
      1. Purchase, lease, or other contract; or
      2. Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;
    4. Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for the individuals described in paragraph (a) of this subsection;
    5. Pay expenses for necessary health care and custodial care on behalf of the individuals described in paragraph (a) of this subsection;
    6. Act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. sec. 1320 d, as amended, and applicable regulations, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;
    7. Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in paragraph (a) of this subsection;
    8. Maintain credit and debit accounts for the convenience of the individuals described in paragraph (a) of this subsection and open new accounts; and
    9. Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.
  2. Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.

HISTORY: 2020 ch. 41, § 55, effective July 15, 2020.

457.370. Benefits from governmental programs or civil or military service.

  1. In this section, “benefits from governmental programs or civil or military service” means any benefit, program or assistance provided under a statute or regulation including Social Security, Medicare, and Medicaid.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:
    1. Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in KRS 457.360(1)(a), and for shipment of their household effects;
    2. Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for that purpose;
    3. Enroll in, apply for, select, reject, change, amend, or discontinue, on the principal’s behalf, a benefit or program;
    4. Prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or regulation;
    5. Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or regulation; and
    6. Receive the financial proceeds of a claim described in paragraph (d) of this subsection and conserve, invest, disburse, or use for a lawful purpose anything so received.

HISTORY: 2020 ch. 41, § 56, effective July 15, 2020.

457.380. Retirement plans.

  1. In this section, “retirement plan” means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:
    1. An individual retirement account under Internal Revenue Code Section 408, 26 U.S.C. sec. 408 , as amended;
    2. A Roth individual retirement account under Internal Revenue Code Section 408A, 26 U.S.C. sec. 408 A, as amended;
    3. A deemed individual retirement account under Internal Revenue Code Section 408(q), 26 U.S.C. sec. 408(q) , as amended;
    4. An annuity or mutual fund custodial account under Internal Revenue Code Section 403(b), 26 U.S.C. sec. 403(b) , as amended;
    5. A pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code Section 401(a), 26 U.S.C. sec. 401(a) , as amended;
    6. A plan under Internal Revenue Code Section 457(b), 26 U.S.C. sec. 457(b) , as amended; and
    7. A nonqualified deferred compensation plan under Internal Revenue Code Section 409A, 26 U.S.C. sec. 409 A, as amended.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:
    1. Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
    2. Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one (1) retirement plan to another;
    3. Establish a retirement plan in the principal’s name;
    4. Make contributions to a retirement plan;
    5. Exercise investment powers available under a retirement plan; and
    6. Borrow from, sell assets to, or purchase assets from a retirement plan.

HISTORY: 2020 ch. 41, § 57, effective July 15, 2020.

457.390. Taxes.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

  1. Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code Section 2032A, 26 U.S.C. sec. 2032 A, as amended, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following twenty-five (25) tax years;
  2. Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
  3. Exercise any election available to the principal under federal, state, local, or foreign tax law; and
  4. Act for the principal in all tax matters for all periods before the Internal Revenue Service, or other taxing authority.

HISTORY: 2020 ch. 41, § 58, effective July 15, 2020.

457.400. Gifts.

  1. In this section, a gift “for the benefit of” a person includes a gift to a trust, an account under the Uniform Transfers to Minors Act (1983/1986), and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code Section 529, 26 U.S.C. sec. 529 , as amended.
  2. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:
    1. Make outright to, or for the benefit of, a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code Section 2503(b), 26 U.S.C. sec. 2503(b) , as amended, without regard to whether the federal gift tax exclusion applies to the gift, or if the principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code Section 2513, 26 U.S.C. sec. 2513 , as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and
    2. Consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. sec. 2513 , as amended, to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.
  3. An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:
    1. The value and nature of the principal’s property;
    2. The principal’s foreseeable obligations and need for maintenance;
    3. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
    4. Eligibility for a benefit, a program, or assistance under a statute or regulation; and
    5. The principal’s personal history of making or joining in making gifts.

HISTORY: 2020 ch. 41, § 59, effective July 15, 2020.

457.410. Construction.

Nothing in this chapter shall be construed to authorize an agent appointed pursuant to a power of attorney to act or make decisions on behalf of the principal which are not related to the principal’s property or finances.

HISTORY: 2020 ch. 41, § 60, effective July 15, 2020.

457.420. Statutory form power of attorney.

A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by this chapter:

KENTUCKY STATUTORY FORM POWER OF ATTORNEY IMPORTANT INFORMATION

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This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act in KRS Chapter 457.

This power of attorney does not authorize the agent to make health-care decisions for you.

You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

This form provides for designation of one (1) agent. If you wish to name more than one (1) agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions.

If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.

This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT I, , name the following person as my agent: (Name of Principal) Name of Agent: Agent’s Address: Agent’s Telephone Number:

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DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) If my successor agent is unwilling or unable to act for me, I name as my second successor agent: Name of Second Successor Agent: Second Successor Agent’s Address: Second Successor Agent’s Telephone Number:

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If my successor agent is unwilling or unable to act for me, I name as my second successor agent: Name of Second Successor Agent: Second Successor Agent’s Address: Second Successor Agent’s Telephone Number:

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GRANT OF GENERAL AUTHORITY

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I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act in KRS Chapter 457:

(INITIAL each subject you want to include in the agent’s general authority. If you wish to grant general authority over all of the subjects you may initial “All Preceding Subjects” instead of initialing each subject.) (___) Real Property (___) Tangible Personal Property (___) Stocks and Bonds (___) Commodities and Options (___) Banks and Other Financial Institutions (___) Operation of Entity or Business (___) Insurance and Annuities (___) Estates, Trusts, and Other Beneficial Interests (___) Claims and Litigation (___) Personal and Family Maintenance (___) Benefits from Governmental Programs or Civil or Military Service (___) Retirement Plans (___) Taxes (___) All Preceding Subjects

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GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

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My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.) (___) Create, amend, revoke, or terminate an inter vivos trust (___) Make a gift, subject to the limitations of the Uniform Power of Attorney Act in and any special instructions in this power of attorney KRS 457.400 (___) Create or change rights of survivorship (___) Create or change a beneficiary designation (___) Authorize another person to exercise the authority granted under this power of attorney (___) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan (___) Exercise fiduciary powers that the principal has authority to delegate (___) Access the content of electronic communications

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LIMITATION ON AGENT’S AUTHORITY

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An agent that is not my ancestor, spouse, or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.

SPECIAL INSTRUCTIONS (OPTIONAL)

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You may give special instructions on the following lines:

EFFECTIVE DATE

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This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions.

NOMINATION OF CONSERVATOR OR GUARDIAN (OPTIONAL)

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If it becomes necessary for a court to appoint a conservator of my estate or guardian of my person, I nominate the following person(s) for appointment:

Name of Nominee for conservator of my estate: Nominee’s Address: Nominee’s Telephone Number: Name of Nominee for guardian of my person: Nominee’s Address: Nominee’s Telephone Number:

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RELIANCE ON THIS POWER OF ATTORNEY

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Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

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Your Signature Date Your Name Printed Your Address Your Telephone Number State of County of This document was acknowledged before me on (Date) by (Name of Principal) Signature of Notary (Seal, if any) My commission expires: This document prepared by:

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IMPORTANT INFORMATION FOR AGENT

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Agent’s Duties

When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

  1. Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest;
  2. Act in good faith;
  3. Do nothing beyond the authority granted in this power of attorney; and
  4. Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner:

    Unless the Special Instructions in this power of attorney state otherwise, you must also:

(Principal’s Name) by (Your Signature) as Agent

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  1. Act loyally for the principal’s benefit;
  2. Avoid conflicts that would impair your ability to act in the principal’s best interest;
  3. Act with care, competence, and diligence;
  4. Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
  5. Cooperate with any person that has authority to make health-care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and
  6. Attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.

    You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:

TERMINATION OF AGENT'S AUTHORITY

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  1. Death of the principal;
  2. The principal’s revocation of the power of attorney or your authority;
  3. The occurrence of a termination event stated in the power of attorney;
  4. The purpose of the power of attorney is fully accomplished; or
  5. If you are married to the principal, a legal action is filed with a court to end your marriage, or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.

LIABILITY OF AGENT

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The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act in KRS Chapter 457. If you violate the Uniform Power of Attorney Act under KRS Chapter 457 or act outside the authority granted, you may be liable for any damages caused by your violation.

HISTORY: 2020 ch. 41, § 61, effective July 15, 2020.

457.430. Agent’s certification.

The following optional form may be used by an agent to certify facts concerning a power of attorney:

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY State of County of I, (Name of Agent), certify under penalty of perjury that (Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated .

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I further certify that to my knowledge:

  1. The Principal is alive and has not revoked the Power of Attorney or my authority to act under the Power of Attorney and the Power of Attorney and my authority to act under the Power of Attorney have not terminated;
  2. If the Power of Attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;
  3. If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

(Insert other relevant statements)

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SIGNATURE AND ACKNOWLEDGMENT Agent’s Signature Date Agent’s Name Printed Agent’s Address Agent’s Telephone Number This document was acknowledged before me on (Date) by (Name of Agent) (Seal, if any) Signature of Notary My commission expires: This document prepared by:

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HISTORY: 2020 ch. 41, § 62, effective July 15, 2020.

457.440. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

HISTORY: Renumbered from § 457.240 , by 2020 ch. 41, § 63, effective July 15, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 457.240 and was renumbered as this section effective July 15, 2020.

457.450. Relation to federal Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. secs. 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that Act, 15 U.S.C. sec. 7001(c) , or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. sec. 7003(b) .

HISTORY: Renumbered from § 457.250 , by 2020 ch. 41, § 64, effective July 15, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 457.250 and was renumbered as this section effective July 15, 2020.

457.460. Effect on existing powers of attorney.

Except as otherwise provided in this chapter, on July 15, 2020:

  1. This chapter applies to a power of attorney created before, on, or after July 15, 2020;
  2. This chapter applies to a judicial proceeding concerning a power of attorney commenced on or after July 15, 2020;
  3. This chapter applies to a judicial proceeding concerning a power of attorney commenced before July 15, 2020, unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies; and
  4. An act done before July 15, 2020, is not affected by this chapter.

HISTORY: Renumbered from § 457.260 , by 2020 ch. 41, § 65, effective July 15, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 457.260 and was renumbered as this section effective July 15, 2020.