De Charette v. St. Matthews Bank & Trust Co.

• Decision Date: 11 May 1926
• Parties: DE CHARETTE ET AL. v. ST. MATTHEWS BANK & TRUST CO. ET AL.
• Court: Kentucky Court of Appeals

283 S.W. 410

214 Ky. 400

DE CHARETTE ET AL. v. ST. MATTHEWS BANK & TRUST CO. ET AL.

Court of Appeals of Kentucky.

May 11, 1926

Appeal from Circuit Court, Shelby County.

Suit by the Bank of Shelbyville and another against the St. Matthews Bank & Trust Company and others, in which the named defendant filed a cross-petition. From the judgment, Susanne De Charette, II, by her guardian ad litem, and Sue T. Henning appeal. Reversed and remanded.

Matt J Holt, of Louisville, W. W. Jesse, guardian ad litem, and Warren T. Godfroy, of Louisville, for appellants.

W Pratt Dale and Barret & Nettelroth, all of Louisville, for appellees.

HOBSON C.

On August 11, 1923, Sue T. Henning executed to the bank of Shelbyville, and a large number of other creditors named therein, a mortgage on all her property real and personal in consideration of their extending the time of payment of their respective debts, and agreeing to prosecute no action against her before January 1, 1925. One tract of the land, known as Allendale, covered by this mortgage was held by Mrs. Henning under the will of Bettie Meriwether. On April 23, 1924, Sue T. Henning filed her petition in equity in the Henry circuit court, praying a construction of Mrs. Meriwether's will under the Declaratory Judgment Act (Acts 1922, c. 83). She made defendants to the petition her daughter Marquise de Charette, her granddaughter, Susanne de Charette, the only child of her daughter, and E. B. Beard and J. D. Dick, who were her trustees under Mrs. Meriwether's will. Marquise de Charette filed a demurrer to the petition. The trustees filed answer. The circuit court overruled the demurrer. It was also alleged in the petition that Theodore Allen, etc contingent remaindermen under Mrs. Meriwether's will, had conveyed their interest in the property to Mrs. Henning. A copy of the deed was filed with the petition. A guardian ad litem was appointed for the infant, who lived in France, but no warning order or other process was issued. The guardian ad litem filed answer, and, the case being submitted, the court on April 25, 1924, entered judgment that Sue T. Henning took a fee in Allendale, and discharged the trustees. An appeal was prayed, but none appears to have been prosecuted. On July 1, 1924, Mrs. Henning executed a deed of trust to the St. Matthews Bank & Trust Company for the purpose of securing the payment of $60,000 in bonds; the trustees agreeing to apply the money collected on the bonds to the pro rata satisfaction of the debts of Mrs. Henning. On January 5, 1925, the Bank of Shelbyville and the Logan Grocery Company, two of the creditors named in the mortgage executed August 11, 1923, filed their petition asking that the mortgage be foreclosed, and that the property be subjected to the payment of the debts therein named. On February 11, 1925, the St. Matthews Bank & Trust Company filed its answer, counterclaim, and cross-petition, setting up a debt it held against Mrs. Henning, and also the provisions of the deed of trust, and praying judgment for the settlement of its acts as trustee and the enforcement of the lien. On the same day J. D. Dick and E. B. Beard, as trustees, filed their answer, setting up the provisions of Mrs. Meriwether's will, and praying that their rights as trustees under the will be protected. On April 2, 1925, the plaintiffs filed an amended petition setting up the proceeding and judgment in the Henry circuit court adjudging that Mrs. Henning had a fee-simple title to the property under the will of Mrs. Meriwether, and filing a copy of that record as part of the pleading. They also set up the deed of trust executed by Mrs. Henning on July 1, 1924, and prayed that it be enforced. All the necessary parties were made defendants, and the nonresidents were brought before the court by a warning order. On May 21, 1925, the St. Matthews Bank & Trust Company filed in open court an amended and supplemental answer, counterclaim, and cross-petition, setting up a chattel mortgage on certain Jersey cows and other personal property, executed by Mrs. Henning to it on June 28, 1923, to secure the debts therein named, also the mortgage executed on August 11, 1923, and praying that the chattel mortgage be enforced. On the 23d day of May, 1925, by consent and agreement of the defendant Sue T. Henning, it was adjudged by the court that the chattel mortgage be foreclosed and the personal property sold. On August 4, 1925, in vacation, the St. Matthews Bank & Trust Company, as trustee, filed its answer, counterclaim, and cross-petition, setting up the deed of trust executed to it on the 1st day of July, 1924, and praying that its lien be enforced and the land sold for the satisfaction of the $60,000 of bonds named in it. On August 4, 1925, a warning order was made against Marquis de Charette, Marquise de Charette, and Susanne de Charette. No other process appears in the record upon this pleading or notice of its filing. On October 7, 1925, Mrs. Henning, by attorney, offered to file her answer, counterclaim, and cross-petition. The court allowed the third and fourth paragraphs of the answer to be filed, but refused to allow the first and second paragraphs to be filed. It overruled the demurrer she had filed to the petition and amended petition. It entered judgment against Mrs. Henning in favor of the St. Matthews Bank & Trust Company, trustee, for $60,000 on the bonds, and adjudged a lien on the property therefor. It further adjudged that she owned all the land in fee simple. It overruled the plaintiff's motion for an appointment of a receiver, and reserved for future adjudication the question of priority among creditors and the question of the sale of the property. From this judgment Mrs. Henning and her granddaughter, Susanne de Charette, by her guardian ad litem, prosecute the appeal before us.

The first question presented is as to the validity of the judgment of the Henry circuit court. It is insisted for the appellants that the judgment is void for want of jurisdiction, as the land is in Shelby county, and none of the parties to the action resided in Henry county. But the parties voluntarily went to Henry county, and there submitted the case to the Henry circuit court for adjudication without objection as to the venue. The Henry circuit court is a court of general jurisdiction. Kentucky Statutes, § 966. But the Code of Practice, §§ 62-77, requires certain actions to be brought in certain counties. Construing these sections in Gillen v. I. C. R. R. Co., 137 Ky. 375, 125 S.W. 1047, which was an action to recover damages for injury to land not brought in the county where the land lay, this court said:

"The purpose of sections 62-77 of the Code is not to regulate the jurisdiction of courts. The Code of Practice does not treat of the jurisdiction of courts or attempt to regulate it. It simply regulates the procedure in civil actions. The purpose of these sections of the Code, as shown in the title, is to regulate the county in which the action may be brought; or, in other words, the venue of actions."

This rule was followed and approved in Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 3 A. L. R. 799, and Maverick Oil Co. v. Howell, 193 Ky. 433, 237 S.W. 40. As shown in these opinions, the rule has often been applied to sales of land ordered by the court, where the land lay in another county, but the parties were before the court, and made no objection to the venue. The rule rests upon the broad ground that, the court being one of general jurisdiction, and the parties being before the court, and submitting their case to it without objection, cannot be heard to complain that the action was not brought in the proper county. In Graham v. Kitchen, 118 Ky. 18, 80 S.W. 464, 25 Ky. Law Rep. 2224, the objection was made, and was sustained by the circuit court.

But, while the judgment is not void as to the adults who voluntarily submitted themselves to the jurisdiction of the court, it is void as to the infant upon whom no process was served and no warning order entered. Section 38 of the Code provides as follows:

"No appointment of a guardian ad litem shall be made until the defendant is summoned, or until a person is summoned for him, as is authorized by section 52."

Under this section it has been held that the appointment of a guardian ad litem before the infant is summoned is void, and does not bring him before the court. Allsmiller v. Freutchenicht, 86 Ky. 198, 5 S.W. 746, 9 Ky. Law Rep. 509; Holloway v. Brown, 181 Ky. 720, 205 S.W. 925. The judgment of the Henry circuit court is therefore void as to the infant, who was in no way before the court.

It remains to determine the effect of the judgment of the Henry circuit court. None of the other parties to the action in the Shelby circuit court were parties to the action in the Henry circuit court. The creditors acquired valuable rights under the mortgage executed by Mrs. Henning to them on August 11, 1923, which was nearly a year before the proceeding in the Henry circuit court was instituted. None of the rights of these creditors would have been affected in any way by the judgment of the Henry circuit court if that court had determined that Mrs. Henning only owned a life estate in the property, for they could not be deprived of their rights without due process of law, and they were strangers to the action in the Henry circuit court. It is well settled that the estoppel of a judgment is mutual, and that, if the judgment does not estop one of the parties, it cannot be relied on by him as an estoppel of the other.

"It is a general rule that estoppels must be mutual, and one of the essential elements of an estoppel by judgment is that both the litigants must be alike concluded by the judgment or it binds neither. In order...