Pendleton v. Pendleton

• Decision Date: 08 October 1908
• Citation: 112 S.W. 674
• Parties: PENDLETON v. PENDLETON.
• Court: Kentucky Court of Appeals

112 S.W. 674

PENDLETON v. PENDLETON.

Court of Appeals of Kentucky.

October 8, 1908

Appeal from Circuit Court, Johnson County.

"Not to be officially reported."

Action by Amanda Pendleton against Grover Pendleton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

D. J Wheeler, for appellant.

Vaughn Howes & Howes, for appellee.

LASSING J.

Appellant and Amanda Brown were married in June, 1904. They lived together for about three months, when he left her at the home of his relatives in Johnson county, Ky. and went to the state of West Virginia. He remained away for a year or more, during which time a child was born to them, and, when it was some four or five months old, appellee filed a suit against her husband, wherein she sought to compel him to contribute to the support and maintenance of herself and their infant child, and asked for an attachment against an undivided interest in certain real estate which was owned by her husband. The proper affidavit was made for a warning order and in due time an attorney was appointed to correspond with and defend for him. It was made to appear that appellant was under age, and the court thereupon appointed a guardian ad litem for him, who filed an answer traversing the allegations of the petition. Proof was taken showing the marriage of appellant and appellee, his subsequent abandonment of her and her destitute and dependent condition. The chancellor, on final hearing, entered a judgment directing appellant to pay to the attorneys for appellee $10 per month alimony for the support of his wife and child, and $25 fee to her attorneys. He sustained the attachment, but made no disposition of the attached property. From that judgment, this appeal is prosecuted.

Appellant complains of the judgment in two particulars: First, because the personal judgment was rendered against him when he was an infant and only constructively served; and, second, because the court sustained the attachment, when there was no proof to support the allegations of the petition in regard thereto, and upon which the order of attachment issued.

The first objection as to the personal judgment is well taken. By section 419 of the Civil Code of Practice a personal judgment is expressly forbidden in any case where the defendant is only constructively served. His plea of infancy can avail him nothing, for he is liable for the support of his wife and child, even...