Kreiger v. Sonne

• Decision Date: 28 January 1913
• Citation: 151 Ky. 739,152 S.W. 936
• Parties: KREIGER v. SONNE.
• Court: Kentucky Court of Appeals

152 S.W. 936

151 Ky. 739

KREIGER v. SONNE.

Court of Appeals of Kentucky.

January 28, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Joseph P. Sonne against Charles Kreiger, who counterclaimed. From a judgment for plaintiff, defendant appeals. Affirmed.

Du Relle & Fleece, of Louisville, for appellant.

M. A D. A. & J. G. Sachs, of Louisville, for appellee.

HOBSON C.J.

Louis Kreiger died a resident of Jefferson county in October, 1879 the owner of the lot in contest, which under his will passed to his eight children, share and share alike. On January 26 1888, Charles Kreiger, one of the children, executed a general deed of assignment for the benefit of his creditors to Harry Stucky. On August 4, 1896, five of the children of Louis Kreiger brought an action in equity against the other three, including Charles Kreiger and his assignee, Harry Stucky, in which they alleged that the lot was indivisible and asked a sale of it. Charles Kreiger was proceeded against as a nonresident. The action proceeded to a judgment, under which the property was sold, and it has now passed into the hands of appellees. They brought this suit against Charles Kreiger to quiet their title to the property. He filed an answer and counterclaim in which he alleged that the judgment under which the land was sold in the equity action above referred to was void. The circuit court sustained a demurrer to his answer and counterclaim and entered a judgment in favor of the plaintiffs as prayed. He appeals.

The ground upon which the judgment is assailed is that the warning order was void. The petition was sworn to by one of the plaintiffs and contained the following averment: "Plaintiffs say that the defendant, Charles Kreiger is a nonresident of this state and believed to be absent therefrom, and plaintiffs state that said Charles Kreiger has secretly departed from this state; that he has concealed the place to which he was going; that they do not know where the defendant resides, do not know the post office which is kept nearest to the place where he resides; and that defendant Charles Kreiger so conceals himself that a summons cannot be served upon him." The petition was sworn to on July 18, 1896, and the warning order was made on August 25, 1896. It is insisted that the warning order is void because the plaintiffs did not aver that they did not know where the defendant might be found; that the one plaintiff who swore to the petition did not state that he believed his coplaintiffs were also ignorant of the facts that were unknown to him; and that 38 days elapsed between the making of the affidavit and the making of the warning order.

It will be observed that the statement of the affidavit is that Charles Kreiger has secretly departed from the state; that he has concealed the place to which he was going; that they do not know where he resides or the post office nearest to the place where he resides; that he so conceals himself that a summons cannot be served upon him. Taking all these allegations together, we think they substantially show that the plaintiffs do not know where he may be found.

The allegation is that the plaintiffs say the facts are as stated. This is an allegation by each of the plaintiffs, and, when the petition was sworn to, there was an affidavit, in substance, that none of the plaintiffs knew these facts.

In Ross v. McGrath's Adm'r, 86 S.W. 555, 27 Ky Law Rep. 723, we said that the presumption, in the absence of proof, is that the defendant was at his place of residence. But, aside from all this, there is a marked distinction between a direct attack upon a judgment and a collateral attack upon it. In this case a judgment, rendered many years ago by a court of general equity jurisdiction, is assailed as void collaterally, and every presumption in favor of its jurisdiction must be indulged. In Carr v. Carr's Adm'r, 92 Ky. 552, 18 S.W. 453, 13 Ky. Law Rep. 756, 36 Am. St. Rep. 614, the affidavit for the warning order failed to state the place where the post office was kept nearest to the place where the defendant resided, and it was insisted that the judgment was void. Holding that the judgment, though erroneous, was valid when attacked collaterally, the court said: "An action against a nonresident upon constructive service is of an ex...