Booker, &C., v. Kennerly, &C.
| Decision Date | 19 January 1895 |
| Citation | 96 Ky. 415 |
| Parties | Booker, &c., v. Kennerly, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MUHLENBERG CIRCUIT COURT.
JONSON & WICKLIFFE FOR APPELLANT.
An action was instituted by R. J. Kennerly and he husband, H. C. Kennerly, to set aside a deed for about seventy acres of land made to W. R. Booker, now deceased, who was at that time husband of R. J. Kennerly, upon the ground consideration for the land was paid out of the estate of the wife derived from her father. To that action the vendor of the land, Staples, and Mary Belle Booker, child of W. R. Booker, and R. J. Kennerly, then Booker, were the only defendants. Judgment was rendered in 1884 in that action setting aside the deed, whereby R. J. Kennerly was invested with title and possession of the land, and being now dead, her children by H. C. Kennerly, jointly with Mary Belle Booker, have inherited it as her heirs-at-law, subject to his tenancy by curtesy.
Mary Belle Booker, by her statutory guardian, has appeared in this action, and, upon notice, moved to set aside the judgment of 1884, the effect of which, if done, would be to leave title to the land solely in her.
The ground upon which she bases that motion is that upon an insufficient affidavit, clerk of the court appointed a guardian ad litem to defend for her, and the court did not, consequently, acquire jurisdiction to render judgment divesting her of title and investing her mother therewith.
According to section 52 of the Civil Code, amended January 16, 1882, in an action against an infant under fourteen years of age, where such infant has no father or guardian, as was her condition, or having a mother who is plaintiff in an action against her, as was so, it was made the duty of the clerk, upon an affidavit being filed showing such state of case, to appoint a guardian ad litem for the infant upon whom summons might be served. There can be no controversy about the condition existing in which the clerk was authorized to make the appointment, nor, whatever be the form of it, that there was an affidavit showing such condition.
So that as Mary Belle Booker was before the court, it had jurisdiction to render the judgment, and it is not consequently void. But the record shows the proceeding, as to any proper protection or defense of the rights of the helpless infant, to have been farcical. For the guardian ad litem, as is generally the case, did not make or attempt to make any...
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