120 Ky. 643 | Ky. Ct. App. | 1905
Opinion by
Reversing.
The appellee, John W. Mullins, is the father of the appellants, Anna H. Mullins, William Mullins, Sarah Mullins and Mahulda Mullins. On August 31, 1886, in consideration of “favor and affection,” the appellee signed, acknowledged, and put to record a deed conveying to the four children named, “his heirs and all his heirs hereafter,” the tract of land herein described, reserving the walnut trees theretofore sold and right of way for their removal. On June 13, 1898, appellee filed his petition in equity in the Letcher Circuit Court, making the appellants defendants, alleging that they, except Anna H. Mullins, were infants under the age of 21 years, and that Sarah and Mahulda Mullins were under 14 years of age; that he was their father, and that they all resided with him; that plaintiff was divorced from their mother, and that her place of residence was not known; that he had, on the 31st of August, 1886, signed and acknowledged the deed hereinbefore referred to, and had it recorded in the office of the county clerk of Letcher county; that such was done without the knowledge of the grantees, and without consideration ; that he did not deliver the deed to the grantees, nor to any one for them! or either of them, and that the same was never accepted by them; that the grantees named were then his only children, and that he
On August 28, 1902, the appellants, Anna H. Mullins and William Mullins and the latter as next friend of Sarah and Mahulda Mullins, moved the court to set aside the judgment entered December 1, 1898, upon the ground that this judgment was void, and tendered and offered to file their answer, which the court refused to allow filed1, and overruled' the motion to vacate the judgment, to which they objected and excepted, and they have appealed from this order, as well as the' judgment of 1898,.
The appellee’s counsel argue in their brief that, as appellants did not take their .appeal until more than two years had elapsed from the rendition of the judgment of 1898, their right to prosecute this appeal is barred, and the appeal should be dismissed. This
In the case of Riley v. Reed, 13 Bush, 412, the court said: “It was the practice of this court under the old Code to require the statutes of limitations to be pleaded. That practice, we think, was correct, and should be adhered to. It has been repeatedly held that the statutes of limitations of actions can not be relied upon in an original action by demurrer, or otherwise than by an answer. One of the grounds of those decisions is that the plaintiff would be deprived by the demurrer of an opportunity to show that he is within some of the savings of the statutes. The statute limiting appeals to two years also contains savings in favor of persons under certain disabilities, and to allow an appeal to be dismissed on motion would deprive the appellant of an opportunity to show that he was within some of them. And, moreover, as it does not appear that the appellant is not within some of the savings in the section imposing the limitation, it does not appear from the record that the appeal is barred.”
Sec. 745 of the present Civil Code of Practice is substantially the same as section 884 of the Code, which was in existence at the time of the rendition of the opinion, supra. It does appear that' the appellants, Sarah and Mahulda, were under the disabilities named in this section of the Code. And it does not-appear that the other two children, Anna H. and William, were not within some of the savings in the section imposing the limitations.
The appellants contend that the lower court erred in failing to vacate the judgment of December, 1898,
' Sec. 52 of the Civil Code of Practice provides: “If the defendant be under the age of fourteen years, the summons must be served on his father; or if he have no father, on his guardian or if he have no guardian, on his mother, or if he have no mother, on the person having charge of him. If any of the parties upon whom service is directed to be served by this section is a plaintiff, then it shall be served on the person who stands first in the order named in said section, and who is not a plaintiff; and if all such persons are plaintiffs, it shall, on the affidavit of one or more of them showing that fact, be the duty of the clerk of the court to appoint' a guardian ad litem for the infant, and the summons shall be served on such guardian.”
The petition of appellee was subscribed and sworn to, and it was stated in it that he was the father of the appellants and they resided with him, and that their mother was divorced from him and her place of residence unknown. He failed to state whether or not they had a statutory guardian. Upon this affidavit the clerk appointed one Ira Field, a practicing attorney at the bar, upon whom the service of process was had for the two named infants. Appellants claim that because of the omission from the affidavit they had no statutory guardian; that the clerk was without jurisdiction to appoint Ira Field, or any one upon whom process might be served for them. They do not attempt to show that they in fact had a statutory guardian at the time upon whom process might have been served. In our opinion, under the facts
Appellants claim that the two children, Anna H. and William, were not served with process in any manner. The original record, as filed in the office of the clerk of this court, does not show that any service of process was had upon them. After this case was first submitted in this court, the appellee asked the court to set aside the order of submission of the case, and permit certain affidavits of the present and former clerks of the Letcher Circuit Court and of D. D. Field to be filed, for the purpose of showing’ that processes wiere issued and executed upon Anna H. and William Mullins which were not copied into the record. This motion was passed upon June 8, 1904, in 81 S. W., 687, 26 Ky. Law Rep., 443, wherein the court said: ££If, as a matter of fact, the alleged missing papers were ever a part of the record, their omission could be shown and supplied by a proceeding in the Letcher Circuit Court.” After that date the appellee, or those representing him, appeared in the Letcher Circuit Court, as shown by a supplemental transcript, the case was redocketed by consent,' proof was heard, and it is made to appear by this additional transcript that a summons was issued against Anna IT. and William Mullins on the day on which the original petition was filed, and was executed upon them by delivering to each a true copy of the summons on July 22, 1898, some two months before the judgment was rendered in that action. It also appears that the appellants were represented in the matter by their attorneys, Salyers & Baker, who oh
v We are of the opinion that the court erred in setting aside the deed from appellee to appellants. The appellee, the father of appellants, testified, and in substance proved the allegations of his petition. His father was a witness for him, and he stated that he was present when the deed was made, and that the appellants were not present at the time, and there was no consideration paid the appellee for the land. Appellee also introduced his two eldest children, defendants in that action, who stated in substance that they never paid any consideration for the land, and that their father had never delivered the deed .to them, nor had they ever had possession of it, and had never heard, before the deed was made, that it was
For the foregoing reasons, the judgment is re