112 Ky. 273 | Ky. Ct. App. | 1901
Lead Opinion
Opinion of the court by
Reversing.
William L. Ronan instituted this action in the Kenton circuit court against John H. Hall and Frances Hall. It is substantially alleged in the petition that the plaintiff and defendant, Frances Hall, a minor under fourteen years of age, having no guardian, curator, or committee in this
It will be seen from an examination of subsection 5, sec. 59, and section 36, of the Civil Code of Practice, that it was the duty of the warning order attorney to have made a careful examination of this case before making his report.. The report filed in the ease seems to negative the idea that" the attorney had in fact made any examination of the case, but had simply written to the defendant, and had received no answer, nor any return of his letter, and for that reason made no defense. Hence it was error to render a judgment for a sale of the property without a proper report from the attorney.
YTe do not think that either of the bonds referred to in the exceptions were necessary to be executed before rendition of the judgment. The failure to execute said bonds in no wise affects the validity of the judgment herein.
The sale sought in this suit was evidently intended to be procured by virtue of section 190 of the Civil Code of Practice, which reads as follows: “The vested estate in real property jointly owned by two or more persons may
It may be that the judgment of sale rendered by the court is not absolutely void, but it is certainly erroneous; •and as to the confirmation of the sale, even if by the confirmation the title would pass, yet the purchaser might be subjected to many inconveniences, and we are not prepared io say that she might not, by proceedings hereafter instituted by the infant defendant, be deprived of the land.
We are of the opinion that the court erred in overruling the exceptions filed. The judgment of confirmation of the sale is therefore reversed, and the cause remanded, with directions to sustain the exceptions, and set aside the judgment of confirmation, and' for proceedings consistent herewith.
Rehearing
overruling petition for rehearing:
• On account of the zeal manifested by the appellees’ attorney in his petition for a rehearing, as well as the practical importance of the question involved, we have, determined to file a response to the petition for a rehearing.
From the foregoing, it is clear that the sale in the case at bar was unauthorized, and the petition for a rehearing is therefore overruled.