143 Ky. 282 | Ky. Ct. App. | 1911
OpiNion op the Court by
Reversing.
Charles S. Hathaway, of Owensboro, died in October, 1909, intestate, unmarried, and without issue, leaving as his only heirs at law,, the appellant Antonio Powell, who was an aunt on the maternal side, and a third cousin, three second cousins, and two first cousins on the paternal side. At the time of his death, Hathaway owned three pieces of real estate situated in Owensboro, and this suit was brought by Antonio Powell as one' of the joint owners of said real estate, against the other joint owners, under section 490 of the Civil Code of Practice, for the purpose of selling said lots and a division of the proceeds of the sale between the owners. The petition alleges that said Hathaway left no father, no mother, no brothers, no sisters, no grandmother and no grandfather, thereby leaving his estate to descend under the statute to his maternal and paternal collateral kindred.
At the judicial sale the appellee, Abe Baer, bought one of the lots; and having been ruled to comply with his bid by executing bond for the purchase money, he filed his response giving the following grounds why he should not he required to take the property, to-wit: (1) the statements in the petition did not authorize the issnal of a warning order for the unknown defendants and heirs of Charles S. Hathaway, for the reason that the petition failed to state that they were non-residents of the State,
Appellee contends that the original petition, which constitutes the affidavit in this case and sets up the facts above related, did not authorize the issual of the warning order against the unknown defendants and heirs of Charles S. Hathaway, because it failed to state that said
Section 691 provides (1) that, in an action against a person whose name is unknown to the plaintiff, he shall he described in the petition and process as the unknown defendant; (2) if his name or place of residence, or either, he discovered by the plaintiff pending the action, the petition shall he amended accordingly; and (3) if his name and place of residence be unknown to the plaintiff, he shall he subject to, and entitled to, the benefit of the provisions of this Code concerning non-residents of this State.
Section 57 provides, among other things, that if the defendant be a non-resident of the State and believed to be absent therefrom, or if his name and place of residence be unknown to the plaintiff, the clerk shall, upon these facts appearing upon the affidavit of plaintiff or his agent or attorney, make upon the petition an order warning the defendant to defend the action on the first day of the next term of court which does not commence within sixty days after the making of the order.
The question of law raised by this exception, however, was eliminated by the subsequent proceedings taken under subsection 2 of section 691, above quoted; for, by an amended petition, it appears that the statement of the original petition, that B. E. Hathaway was the only son and heir at law of the unknown sister of Elijah Hathaway was a mistake and that the said unknown sister of Elijah Hathaway had two children, the defendant B. E. Hathaway and one Mary Carter, his sister; and that said B. E. Hathaway and Mary Carter were the only heirs at law of said unknown sister of Elijah Hathaway, deceased. And finally, by a second amended petition it appears that the said Mary Carter died in May, 1910, leaving a son, John PI. Franklin, by her first marriage, as her sole heir at law. Franklin and B. E. Hathaway filed their answers herein and joined in the prayer of the petition. There remained, therefore, no unknown heirs, and the necessity for proceedings against them, as was taken in the original petition, ceased to exist by the subsequent proceedings
“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 summons 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 clerk not only appointed Oberst warning order attorney for the absent infant defendant, but, acting under section 52, just quoted, he also appointed Oberst guardian ad litem for the infant. Section 38 of the Code further provides:
“No appointment of a guardian ad litem shall be made until the defendant is summoned, or until a person is summoned for him, as is authorized by section 52, 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, nop committee, residing in this State, known to the affiant.”
Sub-section 3 of section 36 of the Code reads, in part, as follows:
“No judgment shall be rendered against an infant— other than a femme covert — nor against a person of un*287 sound mind, who is summoned in this State, until the regular guardian, or committee, or guardian ad litem of such defendant shall have made defense, or have filed a report, stating that, after a careful examination of the case, he is unable to make defense.” ,
Sub-section 7 of section 59 of the Code provides:
“No judgment shall be rendered against such defendant if under any disability, other than coverture, or infancy and coverture combined, until a defense or report shall have been filed pursuant to sub-section 5 of this section. ’ ’
Sub-section 5, referred to, has been fully complied with.
Under these several provisions of the Code, appellee contends that it was the duty of the court to appoint a guardian ad litem after the absent infant defendant had been summoned (in this case by constructive process); and, that as this was not done, she is not before the court, and is not bound by the judgment, which, it is claimed, was entered in violation of subsection 3 of section 36. It will be noticed, however, that subsection 3 of section 36, above quoted, by its terms differs from section 55 of Myers’ Code, and is restricted in its application to infants who have been summoned in this State, and does not refer to infants who are non-residents, and have not been summoned in the State, and, who must necessarily be proceeded against as non-residents. In the absence of some statutory provision, requiring absent infants to be proceeded against in a mode different from that governing absent adults, we see no reason why there should be any difference in the procedure. This view of the interpretation given subsection 3 of section 36, supra, is sustained by the language of section 7 of section 59, supra, which evidently contemplates a procedure by warning order only against a non-resident infant. In the case at bar the infant, Adelaide Potee, was regularly and properly brought before the court by constructive service as though she were an adult; and under the above provisions of the Code, and particularly under subsection 7 of section 59, we are of opinion that this' is all that was necessary to be done.
We are, therefore, of opinion that the circuit judge erred in releasing the purchaser from his bid, and the judgment is reversed, with instructions to take further proceedings consistent with this opinion.