81 Ky. 178 | Ky. Ct. App. | 1883
delivered the opinion oe the court.
The present appellants, William and Eddie Miller, who are the grandchildren of Clayton Miller, deceased, offered for probate, in the Adair county court, a paper containing, in substance, as was alleged, the last will and testament of their grandfather. The motion to probate the paper was based on the further statement that Clayton Miller had executed a last will, and the same had been lost or mislaid, and, upon the hearing in the county court, the paper was admitted to probate as his last will.
The appellants, at the time they instituted the proceedings in the county court, were both infants, and appeared as propounders of the paper by their statutory guardian, John H. Ward. All of the heirs and devisees were made parties to the proceeding, and, complaining of the probate of the will, prosecuted an appeal to the Adair .circuit court. When the case reached the circuit court, the venue was changed to the Hart circuit, and the issue of will or no will made, resulting in a verdict against the validity of the paper probated in the Adair county court, and from this judgment the appellants appeal.
Section 38 provides that no appointment of a guardian ■ad. litem shall be made until the defendant is summoned, &c., nor until an affidavit of the plaintiff or his attorney be filed in court, or with the clerk, or presented to the judge during vacation, showing that the defendant has no guardian, curator, nor committee residing in this state known to affiant.
This last section applies where the infants are defendants to the action, and not where they are the actors or the plaintiffs. The statutory guardian had succeeded in having the will probated in the county where the infants appeared as the plaintiffs by him as their guardian. When the case reached the circuit court, the appellants, on the appeal from the county court, who are the appellees here, dismissed the appeal as to the statutory guardian, leaving the infants in court with an attorney appointed to defend for them as non-residents.
The court should not have dismissed the appeal as to the guardian, whether the infants lived in the state or out of it, nor was it necessary to have an attorney appointed under such a state of case. If the parties insisted on dismissing as to the guardian, the entire appeal should have been dismissed. A foreign guardian may sue under our Code for his infant, and here there is a resident guardian who, in the first place, brings the action, and then is, in effect, removed by the voluntary act of the parties prosecuting the appeal against him. If he could bring the action, he was an indispensable party to the appeal, and failing to prosecute it as to him, all after proceedings were erroneous, if not void. ■
A motion was made to change the venue after the guardian had been, in effect, removed, to' -yvhich the attorney appointed to defend objected. No notice had been served on the statutory guardian, and his voice is silenced by the dismissal of the appeal as to him. The case was sent to the Hart circuit, a county not adjoining the county of Adair, and for no other reason than that counsel could not agree on an adjoining county. ■ It was necessary to show that the parties could not obtain a fair and impartial trial in the adjoining counties before the case could go to Hart. The failure of counsel to agree was no valid objection or reason for sending the case to the county of Hart.
• This court, in the case of Kennedy v. The Commonwealth, has adjudged that the case must be sent to an adjoining county, unless valid objections are made. There is but little difference in the language of the two statutes authorizing the venue to be changed in civil and criminal cases.
Pelley, the executor, and who had qualified in the Adair county court, seems also to have been ignored by the appellees in taking their appeal. While the verdict shows that he was not the executor, still he had qualified, and he should have been made a party also. While the omission to make him a party might not have proved fatal to the judgment, or authorized a reversal, still it was proper to have him before the court in order that the rights of all might be settled. This court has held, in Walker v. Sawyer’s ex’rs, that where the infant is a defendant, the regular guardian must be allowed to conduct the defense, unless
The appellants also object to the manner in which the ■appeal was taken to the Adair circuit court from the county court. No bond was necessary to be given, and while the original papers ought to have been forwarded, the copy of the paper purporting to be the will was filed, and also a copy of the order admitting it to probate. The appeal should not have been dismissed for that reason. It is also urged that, as the appeal was dismissed as to the guardian, the entire appeal went with it. The infants were before the court, and interested in the issue, and while the guardian cannot be regarded as a mere nominal party, still the failure to make him a party leaves the appeal with such a defect of parties only as that a trial, if had, and judgment, as in this case, will be considered as erroneous, and the parties have leave to amend.
We have not* examined into the merits of this case, as the party representing the infants was not heard in the court below, and all questions arising on the merits are left open, and the case to be retried as if no trial had taken place in the Hart circuit court.
The judgment is reversed, and the cause remanded, with directions to remand the case to the Adair circuit court,
On the return of the cause, with the order of dismissal set aside, the infants and guardian should be regarded as in court for all the purposes of a trial.
Judgment reversed, and cause remanded, for proceedings, consistent with this opinion.