Cornell v. Cornell

131 Ky. 650 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Nunn

'Affirming.

A. D. Cornell died intestate some1 five years since, leaving a widow, Nettie E. Cornell, appellant, and two children, James H. and William B. Cornell, each under seven years of age. He owned an undivided interest in two tracts of land, one in Nelson and one in Bullitt county, Kentucky. A short time after his death1, by proper proceedings in the Nelson county court, the lands were partitioned and deeds made which conveyed to his widow and children 137 19-20 acres in Nelson county, and 79 acres near Mt. Washington, in Bullitt county, in both of which the widow had a dower, and the two children named held the fee. The widow was appointed guardian, for.the two children. These lands had no buildings on them. The widow rented them out for several years, and by reason thereof they began to depreciate in value. The lands were rolling, and had' begun to wash into gullies. The rents received were less each year, and she concluded to bring an action and have the lands sold for the purpose of reinvesting the proceeds in other property for the benefit of her children, her wards. This action was instituted for that purpose. The necessary allegations were made, the proof taken, and the court rendered a judgment directing the sale of the lands, which was made by the commissioner. James S'. Cornell, one of the appellees, purchased the Nelson county land, paying therefor over $7,000, and appellant, Nettie E. Cornell, purchased the Bullitt county survey, the consideration named being something over $900. The commissioner filed a report of the sales, and appellee, the purchaser of the Nelson county land, filed exceptions to the report. The exceptions were four in number: First, the court did not have jurisdiction to order a sale of the land, for the reason that the infant defendants, James H. and William B. Cornell, were never summoned as required by law in this action, and that no summons was ever issued against them or directed to be executed on them in any manner whatsoever. We will not name the other alleged reasons, as they are unimportant, and so conceded by counsel representing the parties. The court sustained the exception above stated, and overruled all the others. Hence this appeal.

The two children named were five and seven years of age, and each of them was made a defendant to the petition. It was alleged in the petition that their father was dead; that appellant was their mother and guardian; that they lived with her, and that she had ■charge of them. The petition was verified. See section 52, Civil Code of Practice, as amended by Act 1882 (Acts 1881-82, p. 11, c. 56). The petition, as verified, presented a case making it the duty of the clerk of the court to appoint a guardian ad litem for these infant children upon whom to serve the summons. The clerk appointed S. G. Fulton guardian ad litem for them, but, instead of issuing the summons in the form required before the amendment, he issued one commanding the sheriff of Nelson county to summon “S. G. Fulton, guardian ad litem for James H. Cornell and "William B. Cornell, to answer in ten days after the service of the summons a petition in equity,” etc.; continuing in the usual form. The objection made to this summons is that it was not issued in- form against the two infants, commanding them to answer within 10 days, etc.; that in the form issued it amounted to no summons at all, and therefore the court had no power or right to adjudge a sale of the infants1 lands.

Prior to the year 1882, at which time the Code was amended, this would have been necessary, for then the Code required the service of the summons on the-children, regardless of their age, bnt since then it is. not required to serve the summons on the children when they are under 14 years of age. The General Assembly at that time recognized the ntter helplessness and inability of a child nnder that age to reason and" look after its own interest; that it was a waste of money to require summonses and copies to be issued and served upon them; therefore it required that when those named in section 52 of the Civil Code of Practice, who might he served with summons for the infants, were all plaintiffs, then the clerk should appoint a person to represent the infants, and upon whom summons might he served for them

In our opinion, the act of the clerk in this case, under the provision of the Code referred to, in the appointment of S. 6. Fulton as guardian ad litem for the children, operated to make him, for the purpose named, a defendant to the action to represent the interest of these infants. The form of the summons issued "by the clerk was an improvement on the old form, or the one claimed by appellees. The summons as issued, on the face of it, gave the sheriff information of his lawful duty. Under the old form he would have had to make inquiry on the outside to ascertain whether the children had a father, mother, guardian, or a personal representative on whbxn he might serve the process. We are therefore of the opinion that the court erred in setting aside the sale for the reason stated.

We are compelled, however, to affirm the judgment of the lower court, because the bond required by section 493 of the Civil Code of Practice was not executed to the infants before the sale was ordered. By subdivision 3 of section 493, it is provided that, if the bond be not given, any order of sale, and any sale or conveyance made under such order, shall he absolutely void and of no effect. The parties must have thought that this sale was governed by section 491 of the Civil Code of Practice, which provides for a sale of,real estate in an equitable action by the owner of the particular estate, or freeholder in possession, against the owner of the reversion or remainder. The authority to sell infants ’ land in. such cases as this is found in subsection 5 of section 489 of the Civil Code of Practice!. The infants in this case owned the vested estate in the lands sought to be sold'.

The case of Hicks, etc., v. Jackson, etc., 68 S. W. 419, 24 Ky. Law Rep. 218, is one precisely like the case at bar. In that case the court said: “This proceeding must have been, as stated, under subsection 5 of section 489, for no other semblance of statutory authority for it is found, nor does it conform to the requirements of that section, and others that must be read in connection with it. The action is permitted by the statutory guardian only of the infants. He is compelled to execute the customary bond required of all guardians before acting» This bond may afford some protection to 'the infants against his unauthorized conduct, if any. The bond required by section 493 of the Civil Code to be executed by the guardian of each infant before the sale is ordered was not executed in this case, nor attempted to be. Subsection 3 of section 493 provides: ‘If the bond be not given, any order of sale, and any sale or conveyance made under such order, shall be absolutely void and of no effect! ” See Malone v. Conn, 95 Ky. 93, 23 S. W. 677, 15 Ky. Law Rep. 421.

Pox these reasons, the judgment of the lower court is affirmed.