Crider v. Sutherland, 186 Ky. 7

Crider v. Sutherland

186 Ky. 7 | Ky. Ct. App. | 1919

Opinion of the Court by

William Rogers Clay, Commissioner —

Opinion amended on its face and the petition for a rehearing overruled.

*8Nannie Crider brought this suit against T. J. Sutherland and others to recover a small tract of land situated in Graves county. The defendants pleaded in substance that they acquired plaintiff’s title to the property by a commissioner’s deed executed pursuant to a judgment rendered against her. Plaintiff replied that she had been adjudged and was of unsound mind at,the time of the rendition of the judgment against her; that at said time she had no committee, nor father, nor guardian, but was a married woman and had a husband; that no summons was ever executed on her husband, or on any other person for her, except on the plaintiff herself; that no guardian ad litem was ever appointed to make defense, nor did any guardian ad litem ever make any defense for her, and that by reason of these facts, the judgment and the deed executed pursuant thereto were void and passed no title to the defendants. In another paragraph, she alleged that the deeds, through' which the defendants claimed title, were obtained by fraud. The defendants demurred to the reply and the demurrer was sustained, and judgment rendered in favor of defendants. Plaintiff appeals.

This being an action in ejectment, and defendants having relied on the judgment in question as constituting a link in their chain of title, and plaintiff having replied that the judgment was void for want of jurisdiction, the attack on the judgment was collateral and not direct. Dennis v. Alves, 132 Ky. 345, 113 S. W. 483, 117 S. W. 287.

Judgments rendered in a court of general jurisdiction cannot be collaterally attacked unless the want of jurisdiction appears on the record, and this rule applies to infants and lunatics as well as to adults and persons of sound mind. Furthermore, a pleading making such an attack is not sufficient, which merely alleges the absence of the jurisdictional fact; it must go further and allege that the record affirmatively shows the absence of such fact. Hence, a pleading such as the reply in this case, which did not allege what the record showed on the question but relied solely on facts outside of the record to show a want of jurisdiction, was not sufficient. Ratliff v. Childers, 178 Ky. 102, 198 S. W. 718; Anderson's Committee v. Anderson’s Admr., 161 Ky. 18, 170 S. W. 213, L. R. A. 1915 C, 581; Bamberger v. Green, 146 Ky. 258, *9142 S. W. 384; Dennis v. Alves, supra; Segal v. Riessert, 107 S. W. 747; Maysville & Big Sandy R. Co., v. Ball, 108 Ky. 241, 56 S. W. 188.

Nor was that paragraph, of the reply sufficient which alleged merely that certain deeds were obtained by frand. This allegation was bnt a conclusion of law. The facts constituting the frand should have been alleged.

Where the absence of the jurisdictional fact does not affirmatively appear in the record in which the judgment was rendered, the proper remedy is to bring a suit for the purpose of setting aside the judgment, or to resort to other forms of direct attack. Sublett v. Gardner, 144 Ky. 190, 137 S. W. 864. In snch a case it is only necessary to allege and show the absence of the jurisdictional fact.

Judgment affirmed.