Anderson's Committee v. Anderson's Adm'r

• Decision Date: 13 November 1914
• Citation: 170 S.W. 213,161 Ky. 18
• Parties: ANDERSON'S COMMITTEE v. ANDERSON'S ADM'R. ANDERSON'S COMMITTEE v. ANDERSON.
• Court: Kentucky Court of Appeals

170 S.W. 213

161 Ky. 18

ANDERSON'S COMMITTEE v. ANDERSON'S ADM'R.

ANDERSON'S COMMITTEE v. ANDERSON.

Court of Appeals of Kentucky.

November 13, 1914

Appeals from Circuit Court, Montgomery County.

Application by George W. Anderson for administration upon the estate of David L. Anderson, deceased, opposed by John G. Winn committee of Lewis Anderson. From an order of the county court appointing the applicant, said Winn appealed to the circuit court. From orders there appointing the applicant as administrator, Winn prosecutes several appeals. Reversed and remanded, with directions.

Robert H. Winn, of Mt. Sterling, for appellants.

John A Judy and Lewis Apperson, both of Mt. Sterling, and Hazelrigg & Hazelrigg, of Frankfort, for appellees.

MILLER J.

As these two appeals present, in a measure, the same state of facts, and have been heard together, they will be disposed of in one opinion.

In 1901, Lewis Anderson, the 26 year old son of David L Anderson, was adjudged to be an idiot by the Montgomery circuit court, and with the consent of David L. Anderson John G. Winn was appointed and qualified as the committee of Lewis Anderson. The necessity for the inquest and the appointment of the committee arose out of the fact that Lewis Anderson, at that time, received about $1,500 in the distribution of his mother's estate, in the case of McCue, etc., v. Gibson, etc. Lewis continued, however, to live with his father, David L. Anderson, who was a farmer, with a handsome estate. On August 16, 1913, David L. Anderson, the father, died intestate, leaving Lewis, the idiot son, as his only child and heir at law, his wife having died many years before.

Lewis inherited from his father a farm of 450 acres of land, worth about $50,000, and about $25,000 in money, the estate thus aggregating about $75,000. The September term, 1913, of the Montgomery circuit court was held by Judge A. J. Kirk, as special judge, the regular judge, Hon. Allie W. Young, being absent, or unable to hold court. On August 18, 1913, George W. Anderson, the half-brother of David L. Anderson, deceased, appeared in the Montgomery county court and asked to be appointed administrator of the estate of his half-brother David L. Anderson. John G. Winn, who, as above stated, had been appointed committee of Lewis Anderson in 1901, claimed the right, by virtue of his appointment as the committee of Lewis Anderson, to qualify as administrator of the estate of David L. Anderson, deceased, and moved the county court to so appoint him. Winn filed with his said motion a copy of the order of 1901 appointing him committee of Lewis Anderson; and, after hearing the argument of counsel upon the motions, the judge of the county court overruled Winn's motion for appointment, and sustained Anderson's motion, whereupon said George W. Anderson duly qualified as administrator of his half-brother. Winn appealed to the circuit court, where the question was again tried. Objection was there made that the judgment entered in the original inquest of 1901, which found Lewis Anderson was an idiot, was invalid because the record of the inquest failed to show that process had been served upon Lewis Anderson, or that he was present in court. The circuit judge overruled this objection, and held the inquest of 1901 valid, in so far as the proceeding was concerned. It developed, however, upon the trial that the judgment of 1901, finding Lewis Anderson to be an idiot, had been entered in a separate book called the "Mental Inquest Book" which contained a printed form of judgment, with blanks, which, when filled in would give the history of the idiot, as required by section 2158 of the Kentucky Statutes, and that said judgment had never been signed by Judge Cooper, the presiding judge of the court in 1901, or by any subsequent circuit judge. It had, however, been signed by the clerk of the court; and the orders of that date, and of a subsequent date approving Winn's bond as committee which he filed in the case of McCue, etc., v. Gibson, etc., had been entered upon the regular order book of the court and signed by Judge Cooper.

The further proceedings are shown by the judgment of the circuit court, which, in part, reads as follows:

"Thereupon the cause came on to be heard upon its merits, whereupon the presiding judge announced from the bench his judgment that the appeal should be sustained, that George W. Anderson had no right to qualify as the administrator of David L. Anderson, and that John G. Winn, the committee of Lewis Anderson, had the right to so qualify, and that such was the judgment of the court. Thereupon came the said George W. Anderson before the entering of the said judgment and entered his motion of record herein to dismiss the appeal, because the judgment appointing the said Winn as committee for the said Lewis Anderson was never signed by the then presiding judge of the Montgomery circuit court, to which motion the appellant objected, because the court had already announced its judgment and because the action was then submitted upon its merits; and in support thereof filed the affidavit of John A. Judy and the amended affidavit of R. J. Hunt. Thereupon came the appellant and moved the court and the Hon. A. J. Kirk, as the presiding judge thereof, without waiving their objection to said motion, to dismiss the appeal and sign said judgment nunc pro tunc, and in support of that motion filed the affidavit of H. R. French and Robert H. Winn and an exhibit with the affidavit of Robert H. Winn, to which motion George W. Anderson objects. Thereupon the court, being advised (it being agreed of record by the parties that Henry Jones, who was sheriff of Montgomery county in April, 1901, is now dead), sustained said motion, and the appeal is now dismissed, to all of which the appellants and each of them object, and pray an appeal to the Court of Appeals, which is granted."

It appears from the affidavit of Hunt, the clerk of the court, filed upon the motion for a new trial, that after Judge Kirk had dismissed Winn's appeal on September 13, 1913, and after the entry of said judgment of dismissal, and its signing by the judge, Judge Kirk then signed the book wherein are recorded the judgments of that court rendered in proceedings to inquire into the minds of idiots, which book is of the same series as, and immediately follows the book in which is recorded the judgment of 1901 appointing Winn committee of Lewis Anderson, and that immediately after signing said record, Judge Kirk left Mt. Sterling, having, by order, adjourned said court until Monday, September 15, 1913. Judge Kirk did not return to hold the court; but a court was held on September 26, 1913, by Judge Young, the regular presiding judge, and on that day Winn made a motion to set aside Judge Kirk's judgment dismissing his appeal, but Judge Young overruled the motion. The appeal by Winn as committee of Lewis Anderson, from Judge Kirk's judgment of September 13, 1913, refusing to appoint Winn as administrator of David L. Anderson, deceased, and appointing George W. Anderson as such administrator, and the refusal of Judge Kirk to sign the judgment of 1901 nunc pro tunc, appointing Winn committee for Lewis Anderson, constitute the questions presented by the first appeal now before us. Under the statute, the term of the Montgomery circuit court began on Monday, the 1st day of September. At the adjourned session of the court, held on Friday, September 26th, as above recited, Judge Young impaneled a jury and again held an inquest upon Lewis Anderson, who was again found to be an idiot, whereupon Judge Young appointed the appellee George W. Anderson, the half-brother of David L. Anderson, as the committee for Lewis Anderson. George W. Anderson qualified by taking the oath and giving the bond required by law, and from Judge Young's judgment of September 26, 1913, appointing George W. Anderson committee of Lewis Anderson, Winn, the original committee, prosecutes the second appeal now before us.

The two appeals present the following principal and controlling questions: (1) Was the original judgment of 1901, appointing Winn committee of Lewis Anderson, a valid judgment? (2) If it was valid, was the second inquest upon Lewis Anderson held by Judge Young on September 28, 1913, authorized by law? And (3) if the judgment of 1901 and the inquest of 1913 were valid, was Winn entitled to be appointed administrator of the estate of David L. Anderson, deceased?

1. It is well settled that it is indispensable to the validity of a judgment that it shall be entered in a book provided for that purpose and signed after being so entered by the presiding judge or justice of the court. Commonwealth v. Chambers, 1 J. J. Marsh. 108; Ewell v. Jackson, 129 Ky. 214, 110 S.W. 860, 33 Ky. Law Rep. 673; Robertson v. Donelan, 138 Ky. 152, 127 S.W. 754, Ann.Cas. 1912A, 1208; Farris v. Matthews, 149 Ky. 457, 149 S.W. 896; Interstate Petroleum Co. v. Farris, 159 Ky. 823, 169 S.W. 535. But in case the judge should, for any reason, fail to sign his judgment, section 977 of the Kentucky Statutes provides a remedy. That section reads as follows:

"Upon the death of a circuit judge, or when from any cause the office is vacant, or when the judge is absent, his successor, no matter how chosen, may sign any orders of court left unsigned by his predecessor, the same as his predecessor might have done."

In speaking of this statute in Ewell v. Jackson, 129 Ky. 217, 110 S.W. 861, 33 Ky. Law Rep. 673, we said:

"It sometimes happens that after a judge has directed the entry of an order or judgment he is prevented by absence or death or other cause creating a vacancy in the office, from signing the orders or judgments so entered. And when such a condition arises the orders made and

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