132 Ky. 710 | Ky. Ct. App. | 1909
C. A. Duff died intestate prior to 1895 a citizen.' of Breathitt county. He was survived' by a widow and several children, and children of a deceased daughter, a number of whom were infants, and some of them under 14 years of age. The decedent owned two-tracts of land in Breathitt county, comprising about. 200 acres each. E. O. Tutt, who claimed to- be a creditor of the decedent, brought this suit in the Breathitt, circuit court to settle the estate. He described the lands above named, set out his debts, one of which, was a note executed in 1874, and nothing showing that, it w'as not barred many years before the suit was brought. The widow and children and grandchildren were made defendants. The petition alleged that there was no personal estate, and ashed that enough of the land "be sold to satisfy the debts of the decedent. Whether the summons issued against the defendants was ever served upon any of them is not shown. None of them appeared. A guardian ad litem filed a perfunctory answer for the infants, and then paid no further attention to the case. A reference to the master commissioner was directed to audit claims. Plaintiff Tutt appeared! before the master commissioner and gave his deposition. The. commissioner’ says he notified the parties. How is. not shown. Perhaps it was- by advertisement in a newspaper, as the order of reference directed that, course among others. Claims amounting to about. $175 were presented and allowed. About three years later there was a judgment entered' decreeing á sale, of the two tracts of land described in the petition, or
This case has been loosely practiced1, speaking by the record. It is not disclosed that a summons was ever served upon any party to the suit — adult or infant. Nor did any appear till long after the judgment of sale had been entered and executed. The petition in the case prayed for the sale of enough of the land's of the intestate, subject to the homestead of the widow, to pay his debts-. As stated, the judgment rendered was for a sale of all the land, without allotting homestead.
The errors we notice are-: (1) The failure to have service upon any of the defendants. (2) The appointment of the guardian ad litem for the infants before they had been- summoned, or before any person had been summoned for them. Civ Code Prao. section 36. (3) Entering the decree of sale in spite'of and beyond the prayer of the petition. Civ. Code Prac. section 90. (4) Entering judgment at all without summons or appearance of the defendants. (5) Confirming a sale of two separate tracts of land, which sold1 as a whole, when the law directed a sale in par
It is argued for appellant Combs that the fact the record fails to disclose whether summons- was served proves nothing; that the presumption is it was served. In a collateral attack upon a judgment that is the presumption. But this is not a collateral, but a direct,
The judgment confirming the sale and ordering deed to the purchaser does not appear to have been acted on. Let it now be reversed in the appeal of Duff’s Heirs v. Combs. Let the appeal of Combs be affirmed. On a return of the ca.se S. S. Combs will be substituted to the rights and place of those creditors whose claims he paid off when he settled the purohase^money bonds. The circuit court should appoint a guardian ad litem to look after the interest of the infants.