
    Sizemore v. Hunter, et al.
    (Decided February 20, 1925.)
    Appeal from Jackson Circuit Court.
    1. Pleading — Allegations of Petition in Action Against Nonresident Defendant Constructively Served and Not Appearing Cannot be Taken as True. — Under Civil Code of Practice, section 126, allegations of petition, in action against nonresident defendant, summoned by constructive service only and not entering appearance, cannot be taken as true.
    2. Depositions — Judgment—Judgment on Evidence Taken by Deposition Instead of Interrogatories as Required by Statute, Erroneous but Not Void. — Civil Code of Practice, section 574, providing for taking evidence by interrogatories, is mandatory, and judgment rendered against nonresident defendant, constructively summoned and not appearing, on evidence taken by deposition is erroneous, but not void.
    3. Appeal and Error — Appeal Dismissed as Premature, where Defendant Made No Motion for Retrial Before Prosecuting Appeal.— Where nonresident defendant made no motion for retrial under Civil Code of Practice, section 414, before prosecuting appeal from judgment rendered on evidence not taken by interrogatories, as required by section 574, appeal must be dismissed as premature, in view of section 763.
    J. R. LLEWELLYN for appellant.
    C. P. MOORE and W. E. BEGLEY for appellees.
    CHAS. H. MORRIS, guardian ad litem.
   Opinion op the Court by

Judge Clarke

Dismissing the appeal.

The judgment appealed from herein was rendered April 1, 1921, and cancels a deed executed to appellant, Dessie May Sizemore. She was the only defendant to the action, and a nonresident. She was summoned by constructive service only, and did not defend or enter her appearance, hence the allegations, of the petition could not be taken as true, but had to be proved. Section 126 of the Civil Code.

The evidence to sustain the alleged ground for cancellation was taken by deposition and not by interrogatories, as is provided-must be done in such circumstances by section 574 of the Code. That this provision is mandatory and that a judgment rendered on evidence not so taken is erroneous but not void, is well settled. Luscher v. Julian’s Admr., 173 Ky. 150, 190 S. W. 692; Girdler v. Girdler, 184 Ky. 260, 211 S. W. 857.

It is further provided, however, by section 414 of the Code, that in such circumstances a retrial may be granted by the trial court to a nonresident upon motion therefor at any time within five years after the rendition of the judgment, and by section 763, that this court shall not reverse or modify the judgment until such a motion has been made and overruled.

As appellant made no such motion in the lower court before prosecuting this appeal, it is premature, and must be dismissed, and it is so ordered.  