132 Ky. 790 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
This action was instituted ini the court below by the appellee, Fidelity Trust Company, as committee of Belle B. Rogers, a lunatic, against Belle B. Rogers and her son, Preston Rogers, to procure the sale of certain real estate in the city of Louisville, in which Belle B. Rogers owned the life estate and Preston Rogers the remainder. The sale was asked under section 491, Civ. Code P'rac., for the purpose of reinvesting the proceeds in other property; it being alleged and proved that such sale and reinvestment would be beneficial to all the parties in interest. The parties were all properly before the court, and a guardian ad litem appointed to defend for the lunatic. The sale was adjudged by the court, and the real
Only one of the several exceptions filed to the report of sale is now relied on. It attacks the validity of the inquest held' May 21, 1908, in the criminal division of the Jefferson circuit court, whereby Belle B. Rogers, by verdict of a jury and judgment of the court was' found and adjudged to be a person of unsound mind, and the appellee, Fidelity Trust Company, appointed committee and given charge of her estate. If the proceedings by which these results were reached were illegal and the judgment void, it necessarily follows that the Fidelity Trust Company was without authority to maintain this action, and the court below without jurisdiction to order a sale of the lunatic rs property. It appears from the record before us that notice of the time and place of holding the inquest was duly served upon Mrs. Rogers, but that she was not personally present in court when it was held. The order of the court dispensing with her presence reads as follows: ‘ ‘ Came the commonwealth and filed a notice, duly served on tire defendant, and on the sworn statement of Dr. E. R. Palmer and Dr. M. H. Yeaman, that it would be injurious to bring the defendant, into court, ordered that the personal presence of the defendant be dispensed with.” Section 2157, Kv. St. (Russell’s St. section 4248), provides: “No inquest shall be held
It will be observed that the order of the court merely declares that Drs. Palmer and Yeaman made sworn statements that it would be injurious to bring the defendant into court. It is contended by counsel for appellant that the sworn statement falls far short of the requirements1 of the statute ; indeed, that it imperfectly complies with but one of its three requirements, and that this court has declared the statute mandatory. In support of this contention the cases of Tipton v. Tipton’s Committee, 97 S. W. 413, 30 Ky. Law Rep. 80, and Kelly v. Gardner, 76 S. W. 531, 25 Ky. Law Rep. 924, are relied on. In each of these cases the presence at the inquest of the person-charged with unsoundness of mind was dispensed with, the order of the court showing that fact in the first case being based upon thé joint affidavit of two-physicians, and in the second case upon the sworn statements of two physicians; but in neither case did the order show that the physicians had previously examined or verily believed the defendant to be of unsound mind. This court in each case held that the
A different rule, however, obtains as to the judgment of a court of general or complete jurisdiction, such as a circuit court, and this rule is also, well stated in Freeman on Judgments, vol. 3, section 124: “If it is ascertained' that the judgment or decree under examination was rendered by a court of record in the exercise, of its ordinary jurisdiction over the subject-matter in litigation, the next fact to be determined is whether the court had jurisdiction over the person against whom the judgment has been obtained. The preponderance of authority shows that'in a collateral proceeding this fact must be determined by an inspection of the matters contained in what, at the time of entering the judgment, constituted the record or judgment roll. Any other paper which happens to be on file in the ease and improperly attached to the record must be disregarded. The record, however, may be silent upon the subject of jurisdiction. It may fail to show whether the proceedings taken to bring the defendant within the authority of the court were sufficient or insufficient; or, for aught that appears' by the judgment roll, no attempt may have been made to perform some act essential to jurisdiction. Nothing shall be intended to be out of the jurisdiction of - a superior court but that' which expressly appears to be so. Hence, though the existence of any jurisdictional fact may not be affirmed upon
The Jefferson circuit court is a court of general jurisdiction, and its criminal division undoubtedly had jurisdiction to determine the question whether Belle B. Rogers was or not a person of unsound mind, and likewise to appoint a committee to take charge of her estate in the event she was- found' to he of unsound mind. The inquest by which that fact was determined was held in that court and by a jury under the direction of the court; the verdict being in the statutory form and to the effect that she was pf unsound mind, and a lunatic. The court by its judgment approved tbe finding and appointed the Fidelity Trust Company to take clxarge of her estate, and thr latter did so- after duly qualifying. These facts wtere all shown in the- instant case in which- the real estate of the lunatic and her son was adjudged to he sold, and they also- appear in the record thereof before ns. The record- also shows that prior to the inquest process was duly served upon the lunatic and upon Dr. Ye-aman in whose sanitarium and charge she then was. In addition, the record, as presented in the court below and appearing in this court, contained the order copied in the opinion showing why and upon
As upon the record before us neither the inquest nor the order appointing a committee for the lunatic can be pronounced void', and cannot be collaterally attached: or set aside, as here attempted, we need not pass upon the question of whether either should be declared void in a direct proceeding by the lunatic.
Being of opinion that appellant will acquire a good title to the real estate in question by virtue of its purchase thereof at the commissioner’s sale, and the deed to be made by the commissioner, it follows that the circuit court did not err in overruling the exceptions to the report of sale.
Wherefore the judgment is affirmed.