Begley v. Jones

• Decision Date: 22 November 1932
• Citation: 246 Ky. 135
• Parties: Begley v. Jones et al.
• Court: United States State Supreme Court — District of Kentucky

246 Ky. 135

Begley v. Jones et al.

Court of Appeals of Kentucky.

Decided November 22, 1932.

1. Divorce. — As respects collateral attack, circuit court had jurisdiction of divorce action, where brought in county where parties lived; summons being served on wife and insane asylum medical superintendent having her in charge, and attorney being appointed guardian ad litem for wife.

2. Divorce. — Presumption obtains on collateral attack that guardian ad litem of wife sued for divorce filed necessary report, where entire divorce action record was not before reviewing court.

3. Divorce. — Insanity or five years' separation due to insanity are not grounds for divorce.

4. Divorce. — Divorce judgment based on defective petition cannot be successfully attacked in collateral proceeding.

5. Divorce. — Granting divorce on petition insufficient therefor is error, not rendering judgment void so as to be subject to collateral attack.

Appeal from Leslie Circuit Court.

M.C. BEGLEY for appellant.

J.M. BICKNELL and J.M. MUNCY for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

E.Y. Begley, deceased, who was married three times, was survived by his third wife, Elizabeth Begley, and one or more children of each marriage. The children of the second marriage brought this suit for a sale and division of the real estate which their father, E.Y. Begley, owned at the time of his death, and alleged that their father obtained a judgment of divorce from their mother, Emeriah Begley, while she was non compos mentis and confined in the asylum for the insane at Lexington; that for this reason the judgment of divorce was void, and the subsequent marriage between their father and Elizabeth Begley was also void, and that Roy Begley, the offspring of that union, was illegitimate; and that Elizabeth Begley was not entitled to dower in the estate left by E.Y. Begley, and that Roy Begley had no inheritable interest therein. Elizabeth and Roy Begley demurred to the petition, and the demurrer was overruled. They then moved to strike out all allegations, charging a bigamous marriage and Roy's illegitimacy. This motion was also overruled. Thereupon they elected to stand upon the motion and demurrer, and it was adjudged that neither of them was entitled to any interest in the land in controversy. On appeal from that judgment it was held that, in a collateral attack upon a judgment of a court of general jurisdiction, the invalidity relied on must appear on the face of the record, and that where a judgment of divorce was rendered in the court of general jurisdiction, and no part of the record in that case was incorporated in the proceeding attacking the judgment collaterally, it would be presumed that the wife was properly before the court in the divorce proceeding, and that the judgment was based on a legal ground of divorce existing before the wife became insane. Bailey v. Jones, 228 Ky. 42, 14 S.W. (2d) 152. On the return of the case some of the defendants, who were heirs of E.Y. Begley, withdrew as such and became plaintiffs, and all the plaintiffs filed an amended petition averring in substance that Emeriah Begley and E. Y. Begley were married on December 27, 1881, and lived together from that time until 1900, when Emeriah became, and was adjudged, insane, and confined in the asylum at Lexington; that in 1908 E.Y. Begley obtained a divorce from his insane wife, and a copy of the judgment was filed with the amendment; and that the entire record other than the judgment was lost and could not be found. The chancellor again adjudged that Mrs. Begley was not entitled to share in her husband's estate. On appeal from that judgment it was held that the amended petition did not plead facts sufficient to show the invalidity of the judgment in the divorce proceeding, and that the defect in the pleading was not cured by the introduction in evidence of the pleadings and papers in that action, and the judgment was again reversed and the cause remanded for proceedings not inconsistent with the opinion. Begley v. Jones, 238 Ky. 239, 37 S.W. (2d) 44. On the second return of the case another amended petition was filed, alleging in substance that the only ground on which the divorce was granted was the insanity of the wife,...