Davis v. Tuggle's Adm'R.

• Decision Date: 03 March 1944
• Citation: 297 Ky. 376
• Parties: Davis et al. v. Tuggle's Adm'r et al.
• Court: United States State Supreme Court — District of Kentucky

297 Ky. 376

Davis et al. v. Tuggle's Adm'r et al.

Court of Appeals of Kentucky.

March 3, 1944.

1. Wills. — Where prayer for construction of will was general, judgment construing will in relation to disposition of proceeds of fire policy as result of burning of house belonging to estate was res judicata in subsequent litigation over proceeds from sale of timber or land of the estate, since money received in each instance was part of corpus of estate.

2. Judgment. — Under doctrine of res judicata, one cannot bring two suits on an indivisible cause of action.

3. Judgment. — The fact that no defense was offered in first suit does not affect conclusiveness of judgment in subsequent litigation between same parties over same subject matter, since rule as to conclusiveness of judgment applies to a judgment by default or decree pro confesso.

4. Judgment. — The presumption of validity attaching to a judgment embraces element of jurisdiction over parties acquired through regularity of process and service thereof, and strength of presumption increases with the years.

5. Judgment. — One who questions validity of a judgment has burden of overcoming presumption of validity and establishing his impeachment of the record.

6. Judgment. — To impeach a judgment for want of jurisdiction, absence of jurisdiction must affirmatively appear of record and cannot be established by extrinsic evidence.

7. Judgment. — On an attack upon a judgment for want of jurisdiction, original summons is evidentiary and conclusive unless it bears an affirmative showing of no service upon party attacking

judgment or unless showing of service has been destroyed by direct attack.

8. Judgment. — In absence of original summons from record, it is conclusively presumed that there was proper service thereof on party attacking judgment for want of jurisdiction.

9. Judgment. — Where a defendant contended that she was not served, in absence of original summons, indorsement on petition that summons was issued for such defendant was of value as secondary evidence and entitled to more weight than parol testimony to contrary, although absolute verity was not to be imported to such entry.

10. Judgment. — Where litigant, in subsequent proceeding, contended that prior judgment was not binding upon her for want of service of process and original summons was lost, in absence of clear and convincing evidence of error or fraud, docket entry showing service of process upon litigant was conclusive. Civil Code of Practice. Sec. 670.

11. Judgment. — Evidence without pleading and without substance was unavailing to prove that docket entries showing service upon litigant of process in a prior proceeding were irregular or fraudulent so as to relieve litigant of binding effect of former judgment.

Appeal from Knox Circuit Court.

J. Leonard Davis, Cleon K. Calvert and Victor A. Jordan for appellants.

Guy L. Dickinson and J.J. Tye for appellees.

Before Harvey Parker, Jr., Special Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

When James T. Tuggle met his death in July, 1885, he left a will devising his property to his wife, Susan Tuggle, for her lifetime, with either the whole or the unconsumed remainder to his children. The will is not clear whether the widow had the right to encroach upon the corpus or was required to maintain it subject to the power of reinvestment. After the mother's death in 1939, her daughter, Mrs. Blanche Davis, and her husband, J. Leonard Davis, brought this suit against her two brothers and a sister, and one of them as the administrator with will annexed of their mother, charging her with waste in the management of the father's estate and a violation of the trust established by his will, particularly in the sale of certain portions of the land and the timber on part of it. The plaintiffs claimed that the mother had been indebted to the plaintiff Blanche Davis by reason thereof in the sum of $3,200. The petition also sought to set aside as fraudulent and preferential the conveyance to her sons of a tract owned by the mother individually, and prayed that a lien be adjudged against that land to secure plaintiffs' claim. A settlement of the mother's estate was also asked. We have had a previous suit between these parties concerning the partition of the land remaining unsold. Tuggle v. Davis, 292 Ky. 27, 165 S.W. (2d) 844, 143 A.L.R. 1087.

A very large record was built up in this case, the special Judge observing that more than one-half of it consisted of incompetent, irrelevant and immaterial questions and answers. We agree. The court adjudged that the widow had the power and right under her husband's will to use any part of the corpus of the estate she needed in order to maintain herself and children and to educate them, and that such portions of the property as was sold and the proceeds not divided at the time among the children had been needed and used for those purposes. It was further adjudged that Mrs. Davis was entitled to her one-fourth divisible share in her father's estate remaining after the payment of her mother's debts and funeral expenses, it being found that all the property the mother had at her death had been acquired under her husband's will.

One of the defenses interposed to this suit is that the plaintiff, Mrs. Davis, is barred by a previous judgment construing her father's will in the same manner that the court construed it in this case. We do not find it necessary to pass upon the construction of the will, being of opinion that the plea of res adjudicata is sustainable.

In November, 1928, a suit for a declaration of rights and a construction of the will of James T. Tuggle was filed in the Knox Circuit Court by Susan Tuggle, the widow, against her children. It was stated that $750 had been recovered of the L. & N. Railroad Company for the negligent burning of a house on the land and that $556.42 was left for disposition after payment of an attorney's fee and expenses. The petition set up the will by a full description and attached a copy as an exhibit. It alleged that the widow was entitled to receive this money to be used for her maintenance and support, but that some of the heirs were claiming and demanding part of the money. The prayer was for a construction of the will and a declaration of rights. It was general and not confined merely to the particular fund. The judgment recites that it was being rendered upon the pleadings and exhibits and that the question...