
    Reynolds v. Evans et al.
    (Decided May 27, 1932.)
    HENRY L. SPENCER for appellant.
    O. OH. POLLARD and HUNTER M. SHUMATE for appellees.
   Opinion of the Court by

Chief Justice Dietzman—

Affirming.

In the case reported as Mowbray & Bobinson Lumber Co. v. Reynolds, 230 Ky. 201, 18 S. W. (2d) 966, the present appellant and others recovered from the present appellee Mowbray & Robinson Lumber Company a judgment for $800, wbicb was affirmed by tbis court. After tbe mandate of this court bad been filed in tbe lower court, an execution was issued to enforce tbe judgment affirmed. Thereupon a suit was brought by tbe lumber company under section 518 of the Civil Code of Practice, in wbicb it sought to set aside tbe judgment wbicb had been affirmed by tbis court on tbe ground that it bad been procured by fraud. As part of tbe relief sought in that action, an injunction was asked enjoining pendente lite and on final bearing tbe enforcement of tbe execution wbicb bad been issued. A temporary injunction was denied by tbe trial court and likewise by Judge Thomas of tbis court, to whom application for such injunction was made after it bad been denied by tbe trial court. So far as tbe present record discloses, no further steps have been taken in tbe action brought to set aside tbe judgment affirmed by tbis court. After tbe temporary injunction bad been refused as above set forth, tbis suit was brought by tbe present appellant, M. F. Reynolds, who was one of tbe defendants in tbe suit brought under section 518 of tbe Code to set aside tbe judgment affirmed. Tbe corporate defendant (now appellee) in tbe present suit was tbe plaintiff in tbe suit brought under section 518 of tbe Code, and its codefendant, E. E. Evans (now coappellee), as tbe agent of tbe present corporate defendant, was the one who, as such agent, verified tbe petition in that suit brought under section 518 of tbe Civil Code of Practice. Tbe present suit is one for libel grounded on tbe claim that in tbe petition in tbe suit brought under section 518 of tbe Civil Code of Practice it was stated in substance that tbe judgment affirmed by tbis court, and wbicb tbe suit under section 518 of the Civil Code of Practice sought to have set aside, bad been procured because of perjured testimony given by tbe appellant and others in the suit in wbicb tbe judgment sought to be set aside bad been procured. A demurrer having been sustained to tbe petition as amended, the petition as amended was dismissed, and from that judgment tbis appeal is prosecuted.

Tbe applicable law as agreed.to by tbe parties on both sides in tbe instant case may be found in the case of Lisanby v. Illinois Central R. Co. et al., 209 Ky. 325, 272 S. W. 753, 754, in these words:

“Although tbe English rule is somewhat' broader, tbe American rule, wbicb is tbe rule in tbis state, is firmly established that statements in pleadings filed in judicial proceedings, if material, relevant, or pertinent to the issues involved, are absolutely privileged, though it is claimed that they are false and alleged with malice.”

The petition in which it is claimed that the alleged libelous statements, for which the appellant seeks recovery in the instant action, appear, was filed pursuant to section 518 of the Civil Code of Practice. Among other things, that section provides that one may obtain a new trial in a civil action because of fraud practiced by the successful party. Of course, if a judgment were obtained through the perjured testimony of the successful party, clearly if that could be established, it would be such a fraud as would warrant the granting of a new trial under the express provisions of section 518 of the Civil Code of Practice. Cf. Logsdon v. Logsdon, 204 Ky. 104, 263 S. W. 728. Hence it follows that, in the suit filed pursuant to section 518 of the Civil Code of Practice, and based on the alleged fraud of the successful party in the obtention of the judgment which had been affirmed by this court, the allegation as to what the fraud consisted of, i. e., the alleged perjured testimony of the successful party, was certainly material, relevant, and pertinent to the issue of fraud involved in that litigation. Appellant argues, however, that, inasmuch as it had been determined in the suit wherein the judgment affirmed by this court had been recovered that the successful parties were entitled to that judgment, the issue of the verity of their testimony was forever thereafter res adjudicata as between the parties, and hence the issue raised g.s to such verity in the suit brought under section 518 of the Civil-Code of Practice was a frivolous issue, and therefore the allegations to support it were not material, relevant, or pertinent. The fallacy in this contention, of course, lies in the fact that the Code itself authorizes the opening up of a judgment obtained because of fraud on the part of the successful party and so the inquiry into whether or not fraud had been practiced in the original suit.^ This result as applied to this case authorized the inquiry as to whether appellant and his coplaintiffs in the original suit had given any perjured testimony or not. Neither is the fact that the plaintiff in the suit under section 518 of the Civil Code of Practice, after its lack of success in obtaining a temporary injunction to enjoin the further proceedings under the execution, has not been diligent in prosecuting its action to obtain a new trial material. As stated, in the Lisanby case, allegations in pleadings, if material, relevant, or pertinent to the issues involved, are absolutely privileged, although it is claimed they are false and alleged with malice. Hence, even though the appellant and his codefendants in the suit brought under section 518 of the Code be successful in defending that suit, and establish that they had not committed any fraud in the obtention of the judgment sought to be set aside, still he could not maintain this action for libel because of statements in the pleadings in the suit under section 518 of the Civil Code of Practice which the plaintiffs in that action may not be able to sustain. Newell, Slander and Libel (4th Ed.),p. 407 et seq., 36 C. J. 1253 et seq. This being true, mere delay in pushing the suit under section 518 of the Civil Code of Practice does not destroy the absolute privilege of appellees as to statements made by them in the pleadings in that action.

The judgment of the lower court being in accord with these views, it is affirmed.  