67 Ky. 161 | Ky. Ct. App. | 1868
delivered the opinion of the court:
It is alleged in the petition that appellees recovered judgment against appellant at the September term,
That after said trial and judgment in his favor, appellees caused an execution to be issued on the judgment recovered in 1859, and the same was levied on his property. He alleges that he never executed the note on which the suit was brought, and when the judgment was rendered in 1859 he was a minor, under twenty-one years of age, and that said judgment was rendered against him without defense having been made for him, either by statutory guardian or guardian ad litem; and prays for an injunction against appellees, and that they be perpetually enjoined from proceeding on said judgment. On demurrer, his injunction was dissolved and his petition dismissed, and he (B. C. Ramage) asks a reversal of that judgment.
Here, it is alleged, that appellees voluntarily had the cause placed on the docket, and another summons issued;’ appellant was served with the process of the court; appeared, answered, and defeated them in a trial to which they had invited him, which are to be taken as true on demurrer. Can they now retreat from that defeat, disregard the last judgment, and enforce the previous one which was voidable in its inception, and to which, as the subsequent trial shows, they were not entitled? We think not. The subsequent proceedings must be regarded as a voluntary release and abandonment of the previous judgment by appellees, which they cannot afterwards, at their option, vivify and enforce by execution.
The allegations of the petition uncontroverted entitled appellant to the relief he sought.
Wherefore, the judgment is reversed, and the cause is remanded, with directions to overrule the demurrer to the petition, and for further proceedings consistent herewith.