204 Ky. 302 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
On July 3, 1922, appellants, Anna Irene Decker and T. M. Vickers, made application to the Livingston county court for a grant of a ferry franchise and privilege across the Tennesee river at the point where the Ohio
Upon request the learned judge of the circuit court separated his findings of law and fact and found, among other facts, “that a ferry franchise or privilege across the river at the point in controversy was- granted'to Mrs. Mollie Norden in October, 1903, by the McCracken county,
It is insisted by counsel for appellants (a), that the facts concerning the McCracken county record as disclosed in this record are insufficient to show that the county court of the county had jurisdiction to grant the ferry privilege-, either in 1883 or 1903, when it assumed to grant it to the predecessor of appellees; and that being true, they argue that the Livingston county court had jurisdiction and the court erred in dismissing their application. If, however, they should be mistaken in insistence (a), then they claim (b), that the order above inserted, and which was made by the McCracken county court in 1903, was- and is void because it does not in terms grant a franchise, but only purports to extend and renew one theretofore granted, when the court was vested by the statute with jurisdiction only to grant the franchise and not to extend or renew a prior one. We, however, aré not impressed with the latter contention. True it is
That this proceeding is a collateral attack on the judgment and proceedings of the McCracken county court is undoubtedly true, and indeed is admitted. Whatever may be the nicety of distinctions between a direct and a collateral attack, it is everywhere conceded that when the attacked judgment is relied on as evidence of a right, and its. competency is denied because of its invalidity, the attack is a collateral one. Such is the situation here, and being so we are not called upon to discuss: the clouded and much contused condition of the law differentiating a collateral from a direct attack of judgments. Treating the question, therefore, as a collateral attack on the McCracken county judgment, it is contended by appellants’ counsel that a county court is an inferior one of limited jurisdiction, and that the conclusive presumptions in favor of a judgment of a court of superior and general jurisdiction in a collateral attack do not apply to the judgment and proceedings of the McCracken county court, and that contention is true if the premises from which it is drawn were true, i. e., that the McCracken county court in exercising its jurisdiction to grant ferry privileges is an inferior court with only special, or what is sometimes called limited jurisdiction. Such, however, is not true, since the jurisdiction to grant ferry privileges under the steetions of the statute, supra, is exclusively conferred upon the various county courts in the Commonwealth, and for that purpose it is a court of original as well as exclusive jurisdiction, and the same presumptions in favor of its jurisdic
The county court is a court of record and when it is given exclusive jurisdiction of a subject matter, its judgments, as entered on its record, are entitled to the same immunity from collateral attack as are judgments of courts of superior and general jurisdiction. Indeed, the opinion in the Hatten case supra dealt exclusively with a judgment of a county court granting a ferry privilege and which was collaterally attacked upon the ground that it did not recite the posting of notices required by the statute, and it also failed to specify the period of the franchise. The court held that in such an attack the presumption would be indulged in favor of the judgment that the statute was complied with, and that the jurisdictional notice was given, and the failure to limit the franchise to twenty years was not fatal to it. In other words, the court in effect held, and which is in accordance with the general rule on the subject, that the silence of the record attacked upon the existence of the jurisdictional facts would not be fatal to the judgment, since it would be presumed that they existed, notwithstanding the ■silence of the record upon that point. ’ Yan Fleet on Collateral Attack, sections 830 and 831, and Freeman on Judgments, vol. 1, section 132. 'Whether that presumption is a conclusive or rebuttable one it is not necessary for the purposes of this opinion to determine, although the text authorities referred to say that the presumption is conclusive. If, therefore, the McCracken county judgment was otherwise valid, the burden would be upon appellants who collaterally attacked it to show the absence of jurisdictional facts, if it should be held that the presumption was a rebuttable one, but they would be prevented from introducing evidence on that point if the presumption is a conclusive one. They introduced no evidence in the case, and so far as the present contention is concerned they failed to support their-defense of a want of jurisdiction in the McCracken county court.
Neither do we think that the failure of Mrs. Norden to execute bond at the time of the granting of the fran
The next question to be considered is whether the above inserted final order, made by the McCracken county court in October, 1903, is on its face so indefinite as to be void for uncertainty and, if so, was there filed in this case during the trial below any paper, order or judgment forming a part of the McCracken county record at the time that judgment was entered to which the court may look in order to remove its indefiniteness and uncertainty if found to exist? It will be observed that the judgment nowhere designates the stream across which the ferry was created or the privilege granted; nor does it designate any road or highway leading to the banks of that stream and between which the ferry privilege was to be exercised. It, perhaps, would.be true, though there is some authority to the contrary, that the reference in the 1903 order to the one of 1883 would serve to remove the uncertainty if the latter order supplied the defects, but it was not introduced at the hearing nor, we repeat, was
But it is insisted by appellees that the orders of the McCracken county court made in 1919 (by one of which they, as successors of Mrs. Norton to the title of the ferry privilege, were required to and did execute or renew their formerly executed bond as required by the statute, and by the other of which the court designated toll rates to be charged by the appellees) the ferry privileges across the same stream and at the same place involved in this case were particularly pointed out and designated; and that such designations found in those orders may be looked to in aid of the 1903 judgment for the purpose of supplying the omissions which render it void for uncertainty, under the rule above discussed. But we do not think that the position of counsel in so insisting is tenable. The rule that other orders or papers in the cause may be consulted, in order to supply omissions in the final judgment and to render it sufficiently certain to be executed without the aid of parol proof, is confined to such parts of the record as were in existence and formed a part of it at the time the indefinite judgment was rendered and do not include other documents, orders or papers which may be subsequently put into the record or later, rendered in the cause after the defective judgment became final, unless, perhaps, the subsequent order was a valid mmc pro tunc one. It is not claimed that the 1919 orders were of that nature, and for the reason stated they may not be consulted for the purposes insisted upon.
But, notwithstanding that fact, the 1919 orders do show that the McCracken county court was at that time exercising jurisdiction over the same ferry involved in this case; and since, as we have seen, it was a court of
Wherefore, the judgment is affirmed.