132 Ky. 345 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirmed*
The appellants instituted this action against Walter Alves and his co-appellees, alleging that they are the owners and entitled to the possession of a farm in Hendlerson county, Ky., called the “Point Place; ’’ that the defendants are in the wrongful possession of this property, and unlawfully detaining it from the real owners, and they prayed for a judgment of the court that they were the owners and entitled to possession of the property. The • defendants (appellees) answered, denying the title of the plaintiffs (appellants), and alleging ownership in themselves, and pleaded a judgment wherein the property was sold at judicial sale and purchased by their remote vendor, in bar of appellants’ rights. They also pleaded the statute of limitations, and the issues were made up along these lines.
The first question in the case is whether or not tne
So the question recurs: Was the judgment in the case by the executor to settle the estate of John M. Stanley void as to the infant defendants (appellants) ? This question turns upon the presumption which will be indulged in favor of the judgment of a court of general jurisdiction when collaterally attacked. It is admitted that the record is silent as to whether or not process was ever issued on the cross-petition, or, if issued, whether served upon the infant defendants. Por the appellees it' is insisted that, although the record is silent upon this crucial point, every presumption will be indulged in favor of the validity of the judgment; and, unless it is affirmatively shown that the infant defendants were not properly before the court, their rights were concluded by the judgment had, and the purchaser at judicial sale acquired their title to the land. To decide this question it is only necessary to ascertain the correct principle of law governing it.
In the case of Segal v. Reisert, 107 S. W. 747, 32 Ky. Law Rep. 901, 128 Ky. 117, we had occasion to examine the principle involved here with great particularity, and to review at considerable length the authorities' bearing upon it, and after this review it is said in the opinion: “It would seem from- these authorities that, where a collateral attack is made upon a judgment of a court of general jurisdiction, it is not sufficient to simply allege the absence of a jurisdictional fact; but it must be alleged that the record affirmatively shows' the absence of the jurisdictional fact. This the answer in the case before us fails to do. and for aught that appears here the record in the case in which the property was sold may affirmatively show that the married
In the case of Maysville & B. S. R. R. Co. v. Ball, etc., 108 Ky. 241, 56 S. W. 188, 21 K. L. R. 1693, a collateral attack was made on a judgment upon the ground that it was void for want of service of process on the defendant Upon this question the court said: “The attack on the judgment is not direct, but collateral. It is a well-settled rule that domestic judgments rendered in a court of general jurisdiction cannot be collaterally attacked unless the want of jurisdiction appears upon the record.- Therefore no evidence is admissible except that which is furnished by the record of the action wherein the judgment was rendered. Of course the rule is otherwise when a direct attack is made upon a judgment. The answer that the defendant was not served with process, and did not appear in the action, etc., is insufficient, because it also should have alleged that the record shows such to be the case. In Van Fleet, on Collateral Attack (section 855) it is said: ‘An answer to an, action on a domestic judgment, where special pleading is required or attempted, must not only deny service and appearance, but must allege what the record shows, or fails to show, on these points. *. * * Hence an answer to an action on the record of any court must allege that it does not show any service or appearance, and, if the record is that of a superior court, it must allege that it affirmatively shows a want of service.’ I Black, Judgments, section 271, announces the same doctrine, wherein it is'said: ‘When a party seeks in a collateral action to impeach the judgment or decree of a court of
In the case of Jones, etc., v. Edwards, etc., 78 Ky. 6, the same question we have here arose, and it was said: “The mere absence of evidence in the record of Peter F. Smith’s executor against his devisees, etc., that two or three of his devisees had been summoned in the action is not sufficient to enable the appellees to make a successful collateral attack upon that record and shut it out as evidence in this case; and that it cannot be done has been substantially decided in the following adjudged cases: (Authorities omitted.)”
In Freeman on Judgments, section 124, it is said that: “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 record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, has acted correctly and with due authority, and its judgment will be valid as though every fact necessary to jurisdiction affirmatively appeared. The decisions to this effect are very-numerous.” T'o the same effect are Miller v. Farmers’ Bank, etc., 75 S. W. 218, 25 Ky. Law Rep. 373; Northington v. Reed, 75 S. W. 206, 25 Ky. Law Rep. 354; Berry v. Foster, 58 S. W. 709, 22 Ky. Law Rep. 746.
The record in the case in which the judicial sale was had does not affirmatively show that the infant
It therefore follows that, so far as anything to the contrary appears in the case before us, the court had jurisdiction to make the sale of “Point Place,” and that the purchaser acquired all the title in the land which the appellants then owned.
Judgment affirmed.