167 Ky. 308 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
Marion Harrod, of Franklin county, died in 1899, leaving a widow, Sallie Harrod, and four children, Henry, Irene, Denia Frances, and Turner Harrod, surviving Mm.
At the time of Ms death, Marion Harrod owned a farm of 59 acres, which was mortgaged to Thomas Farmer, to secure a loan of $500. He left no personal estate, except a few articles which were set apart to his widow.
The petition further alleges that Dehoney & Graham, who held an unpaid undertaker’s bill for $30.00 against the estate, and Oscar Farmer, as executor of Thomas Farmer, were made defendants to that action, and that for cause of action the petition in the old suit alleged that it was necessary to sell the land to pay the debts of the decedent, and the expenses and costs of administration; that a summons was issued to Jefferson county and there served upon Oscar Farmer, executor, but that no summons was served upon Sallie Harrod, the widow, or upon either of her children, or upon anybody representing them, nor were her said children, or any one representing them, in any way notified or advised of the pendency of the suit; and that without any proof, the action was referred to the commissioner of the court for proof of claims, who reported the Farmer debt of $500.00, with interest, and the undertaker’s bill of $30.00, above mentioned. And, it is further alleged that Farmer’s executor filed his answer, asserting his mortgage and making it a cross-petition, but that no summons was ever issued upon said cross-petition, and that a guardian ad litem was appointed for the three eldest infant defendants, vno filed his report to
The petition further ’ alleges that under that state of the record, the court entered a judgment in the old action, on April 27th, 1901, directing a sale of the 59 acres, or so much theieof as might be necessary' for the purpose of payihg the debts shown by the commissioner’s report; that the land was sold pursuant to the judgment,' after due advertisement, but that before -the sale was made John Harrod entered into an agreement with the appellees, John Moore and Harvey Gaines, •to the' 'effect that they would announce and let it be known to everybody' at the sale that the- land was to be bought for the' benefit of the widow, Sallie Harrod, so as to prevent competition in the bidding, and that they would procure some man who would buy it in for them, instead of buying-it in for Sallie Harrod, the widow; that it was then agreed between the appellees that Harvey Gaihes was to be the real purchaser of the land at as low a price as it could be bought for, and that he would sell to his co-appellee, John Moore, one-third of the land for a sum sufficient to pay off the mortgage debt, the costs, and Dehoney & Graham’s bill, of $30.00; that in pursuance of this agreement, and in order to carry it out,'Gaines and Moore procured Jasper N. Hutchinson to become the bidder for the land, and buy it in for them, which he did at. the price of $677.22; and that there was no other bid at the sale.
It is further' alleged that after Hutchinson executed his' purchase money bond on February 1st, 1902, he transferred the benefit of his bid to' the appellee, Harvey Gaines, to whom the deed was made by the commissioner, and, that it appearing that Turner Harrod’s name had been omitted-from the commissioner’s 'deed' as a grantor, the action was re-docketed on January 31st, 1903, and the commissioner was directed to insert the name of Turner Harrod in the deed as a grantor, which was done.- •
The petition further alleges that the appellee John Harrod notified Sallie Harrod, the-widow, in February, 1902-, that the-land had been sold to pay the mortgage, and that it brought only sixty 'dollars more than- the mortgage debt, and- that she must give possession to Harvey Gaines, the purchaser; that she -and her children were moved oft the -land in February;'1902, and'
It is further alleged that Harvey Gaines sold the remaining two-thirds of the land to the appellee, John Harrod, who was the administrator and plaintiff in the original suit, and that John Harrod has ever since had, and is now in possession of said land, claiming to be the owner thereof under his purchase from Gaines; that the 59 acre tract was, at the time of the sale, reasonably worth $2,000.00, and would have brought that sum at a fair sale thereof; but that the appellee Harvey Gaines and Hutchinson prevented the land from bringing a better price by announcing that Hutchinson was buying it in for the widow, Sallie Harrod, when in truth and in fact Hutchinson was really buying the land for the defendants, John Harrod, Harvey Gaines and John Moore, under the agreement hereinbefore recited.
It is also alleged that at the time of the sále in 1900, Henry Harrod was fourteen years of age; Denia Prances Harrod, now Greenwell, was twelve years of age; Irene Harrod, now Phillips, was ten years of age; and Turner Harrod was four years of age; that the agreement above set out, between John Harrod, John Moore and Harvey Gaines, was a fraudulent conspiracy to deprive the widow, Sallie Harrod, and her infant children of the said tract of land, and that it was carried out and resulted in the defendants, Harrod, Gaines and Moore, becoming the owners of said land for less than two-thirds of its value, whereby the appellants were deprived by the fraud, conspiracy and deceit of Harrod, Gaines and Moore of their said land.
The petition herein as above outlined was filed in November, 1911, by Sallie Harrod and her children (Turner still being ah infant), against the appellees, John Harrod, John Moore and Harvey Gaines, for the purpose of setting aside the sale and all subsequent proceedings had thereunder in the old suit brought in 1900; and the court having sustained a- demurrer to the petition setting forth, in apt terms, the facts above recited, the plaintiffs prosecute this appeal.
In Baker v. Baker, Eccles & Co., 162 Ky., 694, a separate action was filed, as was done in the case at bar, attacking the validity of a domestic judgment, and the point was made that the procedure constituted a direct, and not a collateral, attack upon the judgment.
But, in overruling that contention, the court said:
“We are also clear that the attack made on this Kentucky judgment was a collateral attack, as a direct attack on a judgment can only be made in the manner pointed out in the Code; that is to say, by prosecuting an appeal or by proceedings had under the Code and in the manner pointed out in sections 344, 414 and 518 for the modification or vacation of judgments. An attack made on a judgment in any other way is a coila í oral attack. Black on Judgments, volume 1, section 252: Vanfleet on Collateral Attack on Judicial Proceedings, see. 2; Duff v. Hagins, 146 Ky., 792.”
See, also, Exchange Bank v. Ault, 102 Ind., 322.
With perhaps two exceptions, all of the many cases referred to by the appellants as sustaining their view were cases in which there was a direct attack upon the judgment in question, either by answer filed to the original petition setting up matters of defense, or by exceptions filed to thé commissioner’s report of sale, or by appeal from the court’s order affirming the sale; and tlie decisions in those cases give no support to the contention that the case stated in this petition constitutes a direct attack. The other two cases relied upon by the appellants have no application to the case before us. '
Sub-section 1, of section 110 of the Civil Code- of Practice reads' as follows:
, “The caption of a pleading must state The name of the court in which the action is brought or pending, and the names of the parties, -designating who are plaintiffs and. who are defendants,, coupled with a word, or short phrase, describing the character of the, pleading, with this exception: If there be several parties on either side, a statement of the' name of the plaintiff, or defendant, first named in the petition, .followed by the phrase, ‘etc.,’ shall suffice, except in petitions,, cross-petitions and answers which make new parties To a set-off' or counter-claim. ’ ’
The Old record is made a part of the petition, and it shows that Turner Harrod was named as a defendant in the body of the petition, although he was not named in the caption.
But, in Clift v. Newell, 104 Ky., 396, we held that where the body of a petition stated a cause of action against a defendant named therein, individually, but, who was improperly designated in the caption as guardian, a demurrer to the petition was improperly sustained; and, in Bryant v. Mack, Stadler & Co., 19 Ky. L. R., 744, 41 S. W., 774, it was further held that where the caption of a petition gave the firm name,, but not the names of the members of the firm, it was sufficient when the body of the petition set out in full the names of the members of the firm.
In Revill’s Heirs v. Claxon’s Heirs, 12 Bush, 559, the suit was by the guardian to sell the land of his wards, without naming them either as plaintiffs or defendants in the caption of the petition; and that fact was made a ground for reversal in a direct proceeding,
The court said:
“In this case the infants were necessary parties, their names appeared in the body of the petition, and they were made to petition for a sale, of their interest in the land, and the court recognized and treated them as parties. If their names had appeared in the caption, they would have been there merely as formal*315 parties, speaking by and tbrongb tbeir guardian, and, it seems to us, the mere omission of the clerical formality of 'writing their names at the head of the petition is an objection too unsubstantial to render the solemn judgment of a court a nullity. To have named them in the caption as parties would have been more regular; but they were named in the petition and their interest was disclosed, and, by their guardian, they petitioned for the sale, and naming them at the head of the petition as parties plaintiff could in no way have contributed to the better protection of their interests.
“To hold such judgments and sales • void upon grounds so plainly immaterial would render titles acquired under the solemn judgments of courts so precarious that competition in bidding would be prevented, and the interests of infants would not be promoted, but injured.
“We think the infants were parties, and are bound by the judgment so far' as its effect depends on that question.”
The reasonableness of the foregoing rulings is appreciated when it is recalled that under the ancient chancery practice there was no caption, to the bill naming any of the parties, and that under that practice the only caption was the declaration that the bill was addressed to the chancellor, while the names of the parties plaintiff and defendant were stated in the body of the bill. The failure to name the infant, Turner Harrod, as a defendant did not make the judgment void, and it cannot be attacked in a collateral proceeding.
So this question is subordinate to, and controlled by, the decision of the larger question, whether the infants were served with process.
“Executed on Oscar Farmer, executor of Thos. Farmer, August 9th, 1900. Service accepted by the rest of the defendants.”
The rule is well settled that domestic judgments rendered in a court of general jurisdiction cannot be collaterally attacked unless the want of jurisdiction appears upon the record; and, 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; it must be alleged that the record affirmatively shows the absence of the jurisdictional fact. Jones v. Edwards, 78 Ky., 6; Sears v. Sears, 95 Ky., 173; Maysville & B. S. R. R. Co. v. Ball, 108 Ky., 241; Segal v. Reisert, 128 Ky., 117; Dennis v. Alves, 132 Ky., 345; Bamberger v. Green, 146 Ky., 258; Baker v. Baker, Eccles & Co., 162 Ky., 683.
“An answer to an action on a domestic judgment, where special pleading is required or admitted, must not only deny service and appearance, but must allege what the record shows, or fails to show, on those points. * * *
“Hence, an answer to an action on the record of any court must allege that it does not show service or appearance, and, if the record is that of a superior court, it must allege that it affirmatively shows a want of service.”
And, in Black on Judgments, section 271, it is further said:
“When a party seeks in a collateral action to'impeach the judgment or decree- of a court of superior jurisdiction on the ground that he had no legal notice of the pendency of the action, if is necessary that he should allege nqhis pleading what, if anything, is shown by the record in relation to the issue and service of process, because, unless the record itself shows that the court never acquired jurisdiction of him, it will be. conclusively presumed that the jurisdiction did attach.”
In Freeman on Judgments, section 124, the rule is stated as follows:
“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 be affirmatively 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. ’ ’
In Dennis v. Alves, supra, the record showed that process had been awarded, although it did not show that summons was ever actually issued or served upon the infants. Nevertheless, in that case the court held that the question of the court’s jurisdiction to sell the infants’ property could not be collaterally attacked.
While the record in the case at bar fails to show that a summons was issued against the defendants, it does show that service of summons was ‘ ‘ accepted by the rest of the defendants.”
We think this recital in the old record brings the judgment in that case within the rule as to its conclusiveness above pointed out, and that it cannot be attacked collaterally.
Without elaborating this idea, and without passing upon any defense that may be interposed, we hold that the petition stated a cause of action in this respect, and that the demurrer thereto should have been overruled.
Judgment reversed for further proceedings.