Combs v. Deaton

• Decision Date: 01 June 1923
• Citation: 251 S.W. 638,199 Ky. 477
• Parties: COMBS ET AL. v. DEATON ET AL.
• Court: Kentucky Court of Appeals

251 S.W. 638

199 Ky. 477

COMBS ET AL. v. DEATON ET AL.

Court of Appeals of Kentucky.

June 1, 1923

Appeal from Circuit Court, Breathitt County.

Action by Mary E. Combs, individually and as guardian for her infant children, against Edward Deaton and others, to recover a tract of land. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.

J. B Adamson, of Ashland, and M. H. Holliday, of Jackson, for appellants.

E. C Hyden, of Jackson, and Hazelrigg & Hazelrigg, of Frankfort for appellees.

THOMAS J.

This action when first filed on September 27, 1911, by appellant Mary E. Combs, individually and as guardian for the other appellants, who are the infant children of Mrs. Combs by her former husband, James G. Deaton, and the wards of Mrs. Combs, as plaintiffs below, against appellee and defendant Edward Deaton, was an ordinary one in ejectment to recover the title to and possession of a tract of land in Breathitt county containing 94 2/3 acres which the petition averred was owned by plaintiffs and wrongfully withheld from them by the defendant. The original answer was a denial of plaintiffs' title and assertion of title in defendant. The case pended upon the docket for a number of years, during which time amended pleadings were filed by both sides to the litigation. In one of the amended petitions it was averred in avoidance of a judgment rendered on March 19, 1901, in the case of Levy Strong v. William Sebastian and Others, then pending in the Breathitt circuit court, under which the land was sold, and which sale was a chain in defendant's alleged title, that the judgment in that case was void for the two reasons: (a) That two of the infant children therein who were surviving children of James G. Deaton, their father, were over 14 years of age when that suit was filed and were never summoned as defendants in the cause; and (b) that the judgment was rendered therein after the action had been dismissed by plaintiff without prejudice on June 21, 1900, about nine months before the judgment was rendered under which the land was sold by the commissioner and bought by the plaintiff in that action, Levy Strong, who was at that time the husband of Mrs. Combs, the appellant, he having married her after the death of her first husband, James G. Deaton.

In that action, which was filed on April 23, 1900, by Levy Strong against his wife, formerly the widow Deaton, and her infant children, for whom she was the duly appointed statutory guardian, the plaintiff sought the enforcement of a vendor's lien against the land in controversy for the sum of $1,119.53. He also alleged in that petition that his vendee, James G. Deaton, to whom he had sold the land, paid at the time he executed the deed $1,005.47, which, with the deferred payments, amounted to $2,125, the total purchase price of the land, and he expressed in his petition a willingness to rescind the trade by taking the land back and paying to the estate of Deaton the amount of the purchase price which the latter had paid at the time the deed was executed. We will hereafter refer to that proceeding as the "Strong case." At the sale by the commissioner under the judgment therein Strong became the purchaser of the land at the amount of his debt, and he received the deed from the commissioner, and later sold it to Ed Callahan, who in turn sold it to Jacob Terry, and on October 1, 1910, he sold it to defendant Edward Deaton.

Answering the amended petition, the defendant denied the invalidity of the judgment in the Strong case, and pleaded laches on the part of plaintiffs as well as title acquired by adverse possession of himself and vendors, and in other paragraphs he relied on his right to be subrogated to the rights of Levy Strong, at least to the extent of the unpaid purchase money to him by Deaton and for which the land was sold, in the event the court should hold that the judgment in the Strong case, under which defendant claimed, was void for any reason; and in that event he also alleged that he was a bona fide purchaser in good faith and claimed the right to be adjudged a lien for the taxes which he and his vendors (immediate and remote) had paid on the land since the master commissioner's sale and for lasting valuable improvements which he said he had put upon the land and which materially enhanced its value. He furthermore pleaded that the order in the Strong case dismissing it without prejudice was a clerical misprision and was put upon the docket through oversight or mistake of the clerk, and that as a matter of fact it was never made or authorized by the plaintiff in that suit or his attorney, but, if that was not true then, he pleaded that plaintiffs herein and defendants therein waived the order of dismissal by filing an answer in that case on March 19, 1901, the day upon which the judgment was rendered, and in effect that they by doing so entered their appearance and consented that the case might be reinstated on the docket, and for that reason they could not take advantage of the order of dismissal entered nine months before that time at the June, 1900, term of the court. Accompanying that pleading of defendant was a motion in this case to redocket the Strong case and to enter a nunc pro tunc order in the latter case expunging from the record the order dismissing it without prejudice. Appropriate pleadings made the issues. Proof was taken and the cause was transferred to equity, and on final submission the court redocketed the Strong case and expunged from its record the order dismissing it upon the ground that it was a clerical misprision and dismissed plaintiff's petition, from which they prosecute this appeal.

It is first insisted by plaintiffs that the attack made herein on the judgment in the Strong case is a direct one, while defendant contends that it is a collateral one, and the determination of that question is our first task. An examination of the adjudged cases, as well as text-writers dealing with the subject, will demonstrate that the question as to whether an attack on a judgment is a direct or a collateral one is frequently attended with much difficulty, but we have adopted the rule which is applied by the great majority of courts, that a proceeding which has for its sole purpose the vacation or nullification of the attacked judgment is a direct attack, but if any other relief is sought, and the setting aside of the judgment is incidental to that relief, then the attack is a collateral one. Some of the latest cases from this court dealing with the questions and determining it as indicated are Baker v. Baker, etc., 162 Ky. 694, 173 S.W. 109, L. R. A. 1917C, 171; Harrod v. Harrod, 167 Ky. 308, 180 S.W. 797; Crider v. Sutherland, 186 Ky. 7, 216 S.W. 57; and Gardner v. Howard, 197 Ky. 615, 247 S.W. 933. Many other cases are cited in the opinions of this court in the cases referred to, and in the Harrod Case, following the same rule as laid down in the Baker Case, it was held that a direct attack on a judgment can only be made in the manner pointed out in the Code; "that is to say, by prosecuting an appeal or by proceedings had under the Code and in the manner pointed out in sections 344, 414, and 518 for the modification or vacation of judgments. An attack made on a judgment in any other way is a collateral attack. Black on Judgments, vol. 1, § 252; Vanfleet on Collateral Attack on Judicial Proceedings, § 2; Duff v. Hagins, 146 Ky. 792." To the same effect is the opinion in the case of Johnson v. Carroll, 190 Ky. 689, 228 S.W. 412.

So far as we have been able to find there is no contrary holding by this court, and under the rule as so adopted and applied there can be no escape from the conclusion that the attack in this case on the judgment in the Strong case is a collateral one. The only reference to that case or the judgment therein is an attempted avoidance by plaintiffs in their pleadings of a reliance by defendant on the commissioner's deed which forms a chain in his title. The primary relief in the whole action was the recovery of the land, and the setting aside of the judgment and its nullification was only an incident to that relief. We have no hesiitancy in concluding that the rights of the parties herein must be adjudged by the rules applicable to collateral attacks.

At this point it is strongly insisted by defendant's counsel that the presumption in favor of judgments of courts of record and of general jurisdiction renders it necessary, before a judgment will be declared void in a collateral attack, for the record to affirmatively show the void matter rendering the judgment of no effect, and the pleading making such attack must affirmatively allege that the record so shows, and it is urged that there is no such allegation by plaintiffs in this case in their pleading attacking the judgment in the Strong case. We cannot agree with this contention, since plaintiffs' pleading attacking that judgment says that it is void for the reasons therein pointed out, and it refers to the record as showing the matter rendering it void, and especially is this true with reference to the order of dismissal and the failure of the court to thereafter reinstate the case. It is true that the word "affirmatively" is not employed in the pleading, but its substance and effect was that the record in the Strong case affirmatively showed the order of dismissal of that case, and that it was never reinstated.

The universal rule as we find it stated in text-books and adjudged cases is that a court has no jurisdiction to render any order in a cause after its dismissal until the dismissing order is in some recognized manner set aside or vacated so as to again bring the parties into the cause, and, if a judgment should be rendered without such disposition of...