Ramey v. Francis, Day & Co.

Decision Date13 April 1916
Citation184 S.W. 380,169 Ky. 469
PartiesRAMEY ET AL. v. FRANCIS, DAY & CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Knott County.

Suit by Francis, Day & Co. against Sam Ramey and others to have land owned by a decedent sold to satisfy his debts. From a judgment setting aside the order of sale as to two of the defendants and affirming as to the rest, the defendants appeal, and plaintiffs file a cross-appeal. Affirmed on the original appeal, and reversed on the cross-appeal.

H. T Bailey, of Hindman, for appellants.

Smith &amp Combs, of Hindman, for appellees.

CLARKE J.

On March 2, 1912, appellees, who were creditors of John Ramey deceased, filed this suit in the Knott circuit court against the widow, the ten children, and the administrator of said John Ramey, all of whom are appellants here, alleging that said decedent died intestate, the owner and in possession of a small tract of land that is described; that he left no personal property; that he left debts due appellees in the sum of ______ dollars. Two summons and thirteen copies were issued, and a guardian ad litem was appointed for two of the children who were infants, by an order entered by the clerk in vacation, in which it is recited that said infants had theretofore been served with summons, but upon what date this order was made by the clerk does not appear in the record.

The master commissioner, pursuant to an order of reference, advertised for claims against said decedent's estate, and upon the date fixed, having received the claims of appellees, and no other, at the next term of court filed a report allowing these claims against said estate, although from the report itself it is apparent that the claims were not properly proven. The report at a subsequent day of said term, no objections thereto having been filed, was confirmed, the guardian ad litem filed his answer, and, the case being submitted, the court on July 27, 1912, entered a judgment directing a sale by the master commissioner of a sufficiency of the land to pay said claims and costs. At a subsequent term of court the master commissioner reported that he had sold the whole of said land for the sum of $146, the amount of the debt, interest and costs, without stating whether or not bids were requested at the sale for the amount of the debts, interest, and costs for a less quantity than the whole of the land. The record does not show that the sale was ever confirmed, that a deed was ever made to the purchaser, or that anything else was ever done in the case until on July 16, 1914, when appellants filed the following motion in said action to vacate and set aside the judgment:

"The defendants, Sam Ramey, Kenas Ramey, Bob Ramey, George Ramey, Charlie Ramey, Willie Ramey, Katherine Ramey-Thacker, Margarette Conley, Hannah Conley, Martha Conley, Mary Conley, Christena Ramey, and K. J. Day, administrator, move the court that this cause of action be redocketed, and the judgment rendered against them herein at the July term of the Knott circuit court, 1912, recorded in Order Book No. 8, on page 301, and the commissioner's deed executed by James Stamper, the commissioner to Kelley J. Day and H. C. Francis, placed upon said judgment, be vacated, set aside, and canceled, because these defendants were not before the court at the time the judgment was rendered against them.

(2) Because the master commissioner's report was never confirmed by the court.

(3) Because the petition on which the judgment was rendered did not state a cause of action against these defendants, and that the action was instituted to settle the estate of John Ramey, deceased, and the petition did not disclose the amount of the deceased's indebtedness to either of the parties, that is, of either of the plaintiffs in the action, nor did it disclose the value of the real estate owned by the deceased, John Ramey, at the time of his death, in which they were seeking to sell to satisfy plaintiffs' claims therein.

(4) Because the land sought to be sold in the action was only worth about $350, and that at the time of John Ramey's death he left a widow and two infant children who were residing upon the land sought to be sold at the time this suit was instituted, and that same was all of the property owned by the deceased, John Ramey, at the time of his death.

(5) Because the plaintiffs in this action failed to prove their claims against the deceased, John Ramey, as required by law, and the court had no right to enter judgment for the plaintiffs unless the claims were properly proved.

(6) Because the master commissioner sold the whole of said tract of land to satisfy plaintiffs' demands, without offering to sell a part of same to satisfy plaintiffs' claim, and for the reasons above stated the judgment rendered herein is absolutely void, and that the sale and master commissioner's deed executed under the said judgment are void.

Wherefore the plaintiffs pray the judgment of the court."

On November 18, 1914, appellants moved to redocket the case and set aside the judgment. On March 12, 1915, appellees moved the court to permit the ex-sheriff to amend his return on the summons, which motion was sustained by the court, but the amended return is not in the record.

The return of the officer upon the summons stated that the summons had been executed upon all but two of the defendants to said suit. The court, after hearing testimony upon the question whether or not the defendants were before the court when the original judgment was rendered, entered a judgment adjudging that the two defendants, who by the record were shown not to have been summoned, had been summoned in fact, and were before the court when the judgment was entered, but that three of the defendants in said action, who by the return on the summons were shown to be before the court, had not been summoned in fact, and were not before the court when said judgment was rendered; and the court thereupon set aside and held for naught the judgment, sale, and deeds to the purchaser and his vendee, in so far as same affected the interests of the three appellants whom the court held had not been summoned when the judgment was entered, but holding said judgment, sale, and deeds valid and binding against the other parties to said action. It will be seen from this judgment that a deed had been made to the purchaser, and that the purchaser had conveyed the land to another, who is not a party hereto.

Appellants are appealing from so much of said judgment as held valid the former judgment, sale, and deeds to said land, and appellees have been granted in this court a cross-appeal from so much of said judgment as held invalid and set aside said former judgment, sale, and deed so far as same affect the interest of Martha Conley, Charley Ramey, and Willie Ramey who were held not to have been before the court when the judgment was entered.

The first reason assigned in the motion to set aside the original judgment in this case is the only one of the six set out in said motion that present any difficulties, and is the only one that seems to have been considered in the lower court or that is seriously argued here; so, for convenience, we will leave it until the last, and first dispose of the others in their order.

1. The second reason assigned in said motion is that the master commissioner's report of sale was never confirmed by the court. It is true that the record does not show that this report was ever confirmed, or that deed was ever made to the purchaser of the land, but those facts do not constitute ground for setting aside the judgment ordering the sale. The validity of a sale is distinct from the validity of the judgment (Bean v. Haffendorfer, 84 Ky. 685, 2 S.W 556, 3 S.W. 138, 8 Ky. Law Rep. 739), and an order confirming or refusing to confirm a sale is a final order and appealable (Dawson v. Litsey, 10 Bush, 408; Kincaid v. Tutt...

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16 cases
  • Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 31, 1943
    ...147 Ky. 655, 145 S.W. 393) and such an amendment may be allowed at any time at any stage of the proceedings (Ramey v. Francis, Day & Co., 169 Ky. 469, 184 S.W. 380) even after the judgment or after the lapse of years on testimony showing the propriety of so doing or after the officer who ma......
  • First State Bank v. Thacker's Adm'x
    • United States
    • Kentucky Court of Appeals
    • June 15, 1926
    ... ... sale was a final order. Dawson v. Litsey, 10 Bush, ... 408; Kincaid v. Tutt, 88 Ky. 392, 11 S.W. 297, 10 ... Ky. Law Rep. 1006; Ramey v. Francis, 169 Ky. 469, ... 184 S.W. 380 ...          The ... court was without jurisdiction at a subsequent term to set ... aside ... ...
  • First State Bank v. Thacker's Admrx.
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 15, 1926
    ...to the motion. The order confirming the sale was a final order. Dawson v. Litsey, 10 Bush 408; Kincaid v. Tutt, 88 Ky. 392; Ramey v. Francis, 169 Ky. 469. The court was without jurisdiction at a subsequent term to set aside this final judgment upon a motion made in the action without notice......
  • Commonwealth, for Use and Ben. of Bouteiller v. Ray
    • United States
    • Kentucky Court of Appeals
    • December 9, 1938
    ... ... the same or an independent court. See Dawson v ... Litsey, 10 Bush 408; Wise v. Wolf, 120 Ky. 263, ... 85 S.W. 1191, 27 Ky.Law Rep. 610; Ramey v. Francis, Day & ... Co., 169 Ky. 469, 184 S.W. 380; Caudle v ... Luttrell, 183 Ky. 551, 209 S.W. 497; and First State ... Bank v. Thacker's ... ...
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