281 S.W. 487 | Ky. Ct. App. | 1926
Reversing.
This is an action under the Declaratory Judgment Act, (chapter 83, 1922 Acts). Its purpose is to obtain a declaration whether a judgment in a former action adjudging certain parties thereto to be the only heirs of Samuel Lyons deceased would be binding and protect the administrator and his bondsmen if other heirs should hereafter appear and make claim against the administrator for a part of the estate.
It is set out in the petition and not denied that in addition to all of the known heirs (twenty in number) his "unknown heirs" were made parties defendant to that action and proceeded against by warning order as authorized by section 691 of the Civil Code of Practice, but only the administrator and two of the known heirs are parties hereto. *568
Section 6 of the act provides that the court may refuse to exercise the power to declare rights in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action; while section 9 provides that when declaratory relief is sought all persons who have or claim any interest which will be affected by the declaration shall be made parties.
Since decedent's unknown heirs are not made parties hereto as provided by section 691 of the Code, it is clear that any decision in this case could not possibly be binding upon them, if any there be, and the lower court, therefore, should have declined to declare the rights of those who were parties to this action and dismissed same without prejudice. Axton v. Goodman,
Besides, this court in Shearer, et al. v. Backer, et al.,
Wherefore, the judgment is reversed with directions to dismiss the petition without prejudice.