13 Ky. Op. 315 | Ky. Ct. App. | 1885
Opinion by
It is evident from the facts of this record that the appellee, Mc-Conathy, when he made the purchase - of the real estate in controversy, had no knowledge of the alleged fraudulent conduct of the parties procuring the judgment.
He stands in this case as an innocent purchaser paying the full value of what he obtained and besides it is not even shown that he was a party to the fraud. In order to secure the recovery sought for in this case the appellant must show that the judgment under
The presumption is that Stratton was the attorney authorized to conduct the suit and that he was, is shown by its prosecution to judgment and the payment to the plaintiff of the moneys due them. It will not do to trifle with the rights of a purchaser by entering into an investigation of the authority of one’s attorney to act, when the record shows that he instituted the action and the parties under it obtained their money, although it may appear that the same attorney was acting for others whose interests were adverse to the plaintiffs. < If parties have been injured by the fraudulent or improper conduct of an attorney and those acting with him the remedy is against those practicing the fraud and not against the innocent purchaser.
It is evident that the failure to appoint an attorney for the nonresidents renders the judgment void. Whether this position be correct or not, we think it is evident that an attorney was appointed. A warning order was entered as required by law and the filing of a report by the attorney for the non-residents and the allowance made them would require the chancellor in behalf of the innocent purchaser to presume the appointment as the law provides. This presumption, while it might not be indulged in, in the hearing of an appeal in the original case, it would certainly apply where parties in a collateral proceeding are attempting to invalidate the judgment under which the case was made. In the case of Jones v. Edwards, 78 Ky. 6, this court said “that the mere absence of evidence in the record to show that some of the devisees had been summoned is not sufficient to enable the appellee to make a successful collateral attack upon the record and include as evidence.” “Nothing shall be intended to be out of the jurisdiction of a Supreme Court but that which expressly appears to. be so.” Freeman on Judgments, see 124. It is not required by any provisions of the code that the appointment of an attorney for the non-resident shall be entered as a part of the warning order. The clerk is authorized to make the appointment. This may be done by an entry on the petition or an entry on the separate paper filed with the petition, and when an attorney files his report, or the attorney for the non-resident re
These steps indicate clearly the action of the clerk and is on the evidence that the chancellor should have required when the case was submitted, that an attorney had been appointed and particularly when he turns to the record and finds the report of their attorney and answer for the non-residents. The report is that he had corresponded with the non-residents and they had authorized him to defend for them.
The claim of the city for taxes existed and nothing more was required than to file the tax claims, while its proceeding was in the nature of a proceeding, a judgment was rendered in the action, the subject matter of which the court had jurisdiction with a construe
Judgment affirmed.