Allison v. Taylor

• Decision Date: 03 April 1838
• Citation: Allison v. Taylor, 36 Ky. 87 (Ky. Ct. App. 1838)
• Parties: Allison v. Taylor & Washburn.
• Court: Kentucky Court of Appeals

36 Ky. 87

Allison v. Taylor & Washburn.

Court of Appeals of Kentucky.

April 3, 1838

FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.

Mr Pirtle for appellant.

Mr Owsley for appellees.

OPINION

ROBERTSON CHIEF JUSTICE

The only question presented in this case, is whether a judgment by default against a lunatic, upon service of process on him alone, be void because his committee was not a party. And it is our opinion that, though evidently erroneous, the judgment is not void.

A judg't against a lunatic, upon process served upon him only--his committee no party to the suit--tho' erroneous is not void. The lunatic's land may be sold under an ex'on on such judg't.

If the fact of lunacy appear in the record, in such case, it is ground for reversal; if it does not, the judg't may be set aside, by writ of error coram nobis.

The legal capacities of lunatics and infants are alike, and it has been held, that a judg't against an infant, without defence, or the intervention of a guardian ad litem, is not void.

Had the fact of lunacy appeared in the record of the judgment, a writ of error to this Court would have ensured the proper relief. But, though the fact did not so appear, and is judicially known only from an admission in the record of this suit--brought to enforce, (by eviction) a purchase of the lunatic's land, under an execution on the judgment against him--yet, upon a writ of error coram nobis, the judgment might have been set aside.

There being however, according to the authorities, ancient and modern, a parallelism, to a great extent in the legal capacities of lunatics and infants, and this...