132 Ky. 700 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
On November 8, 1884, Morgan Baldridge and wife conveyed by deed1 to Robert Baldridge and Mary Jane Baldridge, his wife, in consideration of $400, a tract of land lying in Knott county. After this, and about the year 1891, Robert Baldridge died, leaving surviving him his wife, Mary Jane Baldridge, and four children, then ranging from one to seven years old. By the deed above referred to, the title to the tract of land was vested in the husband and wife jointly, and at his death his half descended to his four children subject to his widow’s rights. This suit was brought by the four children against the Northern Coal & Coke Company, etc., to recover their half interest in the land. The court upon a hearing of the case dismissed their petition, and they appeal.
The defendants claim the tract under a judicial sale in a suit of the mother as guardian for her children aifter the death of her husband; and the only question to be decided is: Was that proceeding void? There is a marked difference between the effect given a judgment when it is attacked collaterally and when it is directly attacked as by an appeal from it or a petition to set it aside. The judgment in the case referred' to, being relied on in this case simply as evidence of title, and there being no proceeding here to set
No bond was given by the guardian as provided in this section; and therefore under the mandate of the statute the proceeding was void. It is insisted for the appellees that we should presume that a bond was given. It has been held that it may be presumed in the ease of a judgment which is attacked collaterally that a summons was issued and served, or that an affidavit was filed with the clerk for a warning order, although they are not found in the record: But the summons or the affidavit may be lost out of the record, and there is no way of showing that they may not have been in the record; but, when we have the order book of the court, we know what orders the court made. It cannot be presumed that the court made orders that are not on the order book; for there can be no order of the court not entered on the order book and signed by the judge. The statute only pro
Judgment reversed and cause .remanded for a judgment as above indicated.
Petition for rehearing by appellee overruled,