Dean v. Brown

• Citation: 88 S.W.2d 298,261 Ky. 593
• Parties: DEAN v. BROWN.
• Decision Date: 06 December 1935
• Court: Court of Appeals of Kentucky

88 S.W.2d 298

261 Ky. 593

DEAN v. BROWN.

Court of Appeals of Kentucky

December 6, 1935

Appeal from Circuit Court, Mercer County.

Action by Sally Brown against Miller Dean. From an adverse judgment defendant appeals.

Affirmed.

C. E Rankin, of Harrodsburg, for appellant.

Errol W. Draffen, of Harrodsburg, for appellee.

THOMAS Justice.

This equity action was filed in the Mercer circuit court by appellee and plaintiff below, Sally Brown, against the appellant and defendant below, Miller Dean, wherein plaintiff sought specific performance of a written contract entered into between the two for the sale by her to defendant of a tract of land located in Mercer county, Ky. The answer admitted the execution of the contract sought to be enforced but resisted the relief prayed for upon the sole ground that plaintiff's tendered deed to him did not convey a perfect title because she herself did not possess it, since the one she had was pro tanto defective for the reason set out in the answer, which incorporated as a part of it the record in the case of Dean, Adm'r, v. Dean, formerly pending in the Mercer circuit court, and which was an action for the sale of the landed estate of R. W. Dean for purposes of division of the proceeds among his heirs. The court sustained plaintiff's demurrer filed to defendant's answer, and, upon his declining to plead further, judgment was rendered sustaining the prayer of plaintiff's petition for specific performance, and, complaining of it, defendant prosecutes this appeal.

The alleged defect in plaintiff's title which she obtained under the judgment in that action was thus averred in defendant's answer: "He states that prior to March 6, 1925, Bettie Louise Langford, then an infant over 14 years of age, Freida Langford, Walter Langford, Willia Langford and Thelma Langford, the latter four being infants under 14 years of age, were the owners between them of a 1/63 undivided interest in the real estate described in the petition, and that all of them were nonresidents of and then absent from Kentucky, the other interests in the real estate being owned by other persons; that on March 5, 1925, R. W. Dean, one of the joint owners of said real estate filed in this court his petition in equity seeking a sale of the land as a whole alleging it to be indivisible without impairing its saleable value, to which petition he made all of the other joint owners including said five infant parties defendants; that on said date he made and filed in said action an affidavit setting out the fact that said infants were non-residents of the state of Kentucky, then absent therefrom and sought a warning order and the appointment of a warning order attorney for them; that, although the affidavit was filed no warning order was made further than a notation made on the Clerk's minute or memorandum book stating that a warning order attorney was that day appointed, but no entry thereof was ever made on the order book, or signed by the Court nor endorsed on any of the papers; that thereafter on May 22, 1926, State Bank & Trust Co. of Harrodsburg, Ky. having been previously appointed and qualified in the Mercer County Court as the Guardian of the said three infants, appeared in the Mercer Circuit Court and executed, with sureties the bond required by law in the sales of real estate as provided by section 493 of the Civil Code of Practice; that on May 23, 1925, said Court entered a judgment holding said real estate to be indivisible and directing its Commissioner to sell the same as a whole as therein set out; that thereafter the land was sold, the proceeds collected by the Commissioner and under further orders of the Court distribution was made by paying over to the three infants their respective shares, all of which said Guardian duly received in the action and has since that time invested and held for said infants; that he makes the original record of said action styled R. W. Dean, etc., Plaintiffs, v. H. L. Dean, etc., Defendants, a part of this pleading the same to be transcribed in full as an exhibit for use on appeal; that the plaintiff, Sallie Brown was one of the joint owners of said land and was a party to the action wherein it was so sold. Now, the defendant avers and charges that the Court ordering the sale of said real estate had no jurisdiction over the persons of said three infants, because there was no process of any nature against them, and the proceedings selling and conveying the title to said property were and are void as to said infants and they still hold and retain their interests in such real estate. He states that on May 6, 1925, Roy E. Graves, filed a report as warning order attorney in the case, but it does not purport to be a report for the three (five) infants referred to."

Those allegations are sustained by the record of the division action of Dean v. Dean, supra, and to which we shall hereafter refer as the "division action." The court rendered no opinion in sustaining the demurrer to the answer, and we are not informed as to the grounds upon which that ruling was based. It will be perceived that the attack made upon the judgment in the division action is a collateral one, and it is thoroughly settled in this and all other jurisdictions, so far as we are aware, that such attacks will not be sustained for mere errors of the court in rendering the judgment attacked, since they may be corrected only by appeal. Collateral attacks are sustainable, however, when it is made to appear that the court in rendering the attacked judgment did not have jurisdiction of either the subject-matter or of the person whose rights therein were so abortively adjudicated. While lack of jurisdiction, when established by the prevailing rules of practice for that purpose, subjects the judgment rendered to collateral attack, the universal rule of practice requires that the absence of jurisdiction of the court rendering the attacked judgment must affirmatively appear of record in that proceeding. It may not be established by evidence de hors the record. Differently stated, the rule is that every presumption will be indulged in favor of a judgment that is collaterally attacked, and that the alleged invalidating fact or facts are provable only by the record itself, and they must affirmatively appear therein. Steel v. Stearns Coal & Lumber Co., 148 Ky. 429, 146 S.W. 721; Baker v. Baker, Eccles & Co., 162 Ky. 683, 173 S.W. 109, L.R.A. 1917C, 171; Caudle v. Luttrell, 183 Ky. 551, 209 S.W. 497; Potter v. Webb, 186 Ky. 25, 216 S.W. 66; Leonard v. Williams, 205 Ky. 218, 265 S.W. 618; Wolverton v. Baynham, 226 Ky. 214, 10 S.W.2d 837; Pennington v. Commonwealth, 231 Ky. 494, 21 S.W.2d 808; and many others both preceding and following them that might be cited. Whether the court in rendering the judgment appealed from in this case concluded that the invalidating facts relied on in the answer were not established, as required by that rule, since it did not affirmatively appear from the record in the division action that some of the nonresident infants were not before the court by proper constructive service or otherwise, we know not; nor is it made to appear anywhere in the record that the court concluded that the subsequent execution of the bond by the statutory guardian of the infant joint owners of the land, without objecting to the prior invalid procedure therein, was an entry of their appearance in the division action so as to cure and waive such invalidity, if any.

In considering the first-stated ground upon which the court may have acted, a question is presented which, so far as we have been able to discover, has not heretofore been passed on. It will be noted that the invalidating error or...