Ramsey's Ex'r v. Ramsey

• Decision Date: 21 March 1930
• Citation: 233 Ky. 507,26 S.W.2d 37
• Parties: RAMSEY'S EXECUTOR v. RAMSEY et al.
• Court: Kentucky Court of Appeals

26 S.W.2d 37

233 Ky. 507

RAMSEY'S EXECUTOR v. RAMSEY et al.

Court of Appeals of Kentucky

March 21, 1930

Appeal from Circuit Court, Hopkins County.

Motion by Nora Ramsey through her committee to set aside judgment of divorce theretofore rendered. From the judgment setting aside the judgment of divorce as void, George W. Ramsey's executor appeals.

Affirmed.

Blakey Davis & Lewis, of Louisville, for appellant.

Wm. J Cox, of Madisonville, and Woodward, Hamilton & Hobson, of Louisville, for appellees.

DIETZMAN J.

On December 7, 1887, Nora Brown and George W. Ramsey were married. On June 17, 1888, Nora Brown Ramsey was adjudged by the judgment of the Hopkins county court to be a person of unsound mind, and was committed to the state asylum at Hopkinsville, Ky. where she has ever since been. She is yet a person of unsound mind. On August 23, 1897, George W. Ramsey filed in the Hopkins circuit court a suit against Nora Ramsey for divorce on the statutory grounds of "living separate and apart for more than five consecutive years." On the day the petition was filed, the clerk of the Hopkins circuit court indorsed thereon the following: "1897, Aug. 23, Pet. filed. Sum & copy iss. Att. Jno. H. Christy, Clk." The only return of the sheriff on that summons was that it had been executed on Nora Brown Ramsey by delivering to her a copy thereof on August 26, 1897. On September 10, 1897, George W. Ramsey filed in his pending suit for divorce his affidavit to the effect that the defendant, Nora Brown Ramsey, was a person of unsound mind, and had no guardian, curator, or committee. Along with the affidavit was filed a motion that a guardian ad litem be appointed for the defendant. The court sustained the motion, and appointed W. D. Orr, who, on October 2, 1897, filed a report to the effect that he could make no defense to the action. Proof having been taken, the court on October 7, 1897, entered a judgment divorcing the parties. After the judgment of divorce had been entered in the Hopkins circuit court, George W. Ramsey remarried and by his second marriage had one son, who died in the lifetime of George W. Ramsey, leaving a widow and two infant children.

It does not appear from the record or briefs what has become of the second wife of George W. Ramsey, but we are informed in briefs, and repeat it for its historic value, that George W. Ramsey, who is now dead, by his will bequeathed the sum of $4,000 in trust, the income therefrom to be applied to the support and maintenance of Nora Brown Ramsey for her life, with power on the part of the trustee to encroach upon the principal in case of need. Any part of the principal unexpended at the time of the death of Nora Brown Ramsey is to revert to the residuary of George W. Ramsey's estate. The residuary estate is divided equally by the will between the widow of the son of George W. Ramsey and the children of that union. Nora Brown Ramsey, through her committee, as we are informed in brief, sought by an action in the Jefferson circuit court to have that court elect for her a renunciation of the will of Geo. W. Ramsey on the theory that the judgment of divorce of 1897 was void, and that she was still the wife of George W. Ramsey at the time of his death. Meeting with some procedural objections, Nora Brown Ramsey, through her committee, then filed a motion in the Hopkins circuit court supported by affidavits, by which she sought to set aside the 1897 judgment for divorce on the grounds that it was void, in that the summons in that case had not been served in accordance with the provisions of the Code governing the service of process upon persons under disability, and hence she was not before the court when the judgment for divorce was entered. The Hopkins circuit court sustained her motion, and, from the judgment setting aside the 1897 judgment as void, this appeal is prosecuted.

The parties are agreed that the sole question presented for decision on this appeal is whether the judgment of 1897 was void or voidable only. Section 53 of the Civil Code of Practice, in effect at the time the 1897 suit was filed and tried, read:

"If the defendant be of unsound mind the summons must be served on him and on one of the following named persons, if residing in the county, viz: On his committee; or, if he have no committee, on his father; or, if he have no father, on his guardian; or, if he have no guardian, on his wife; or, if he have no wife, on the person having charge of him; or, if the defendant be a married woman of unsound mind, and her husband be plaintiff in the action, the summons must be served on her and her committee; or, if her husband be not plaintiff in the action, upon her and her committee, if she have one; or if she have no committee, upon her and her husband: Provided, That the summons shall not be served upon a person of unsound mind, if he be under charge or treatment of a physician who certifies that, in his opinion, the service would be injurious to such person. Such certificate shall be returned with the summons."

The record in the instant case does not affirmatively show that Nora Brown Ramsey was served as the Code thus required, and the questions presented for decision are: (1) Will we presume that she was properly served since the court appointed a guardian ad litem, and in its judgment granting the divorce recited "and it appearing that the defendant (Nora Brown Ramsey) is properly before the court," and (2) even if not properly served, did the fact that a guardian ad litem was appointed and filed a report render the judgment merely erroneous and not void?

A great number of authorities are cited pro and con on these questions presented for decision, and, without an analysis of them, and keeping in mind the situation presented by them, much confusion may result from just reading the language of the opinions. The first thing to keep in mind is the distinction between a direct attack on a judgment, such as we have here, and a collateral attack. The reason for that distinction is well pointed out in the case of Gardner v. Howard, 197 Ky. 615, 247 S.W. 933, 934. In that case the committee of a lunatic instituted an action against him pursuant to section 489 of the Civil Code of Practice for the sale of some land owned by a lunatic. Judgment was entered ordering the sale, and the appellee Howard became the purchaser. The sale was confirmed, the purchase price paid, and the land was conveyed to Howard. Later, the lunatic died, leaving a number of heirs, most of whom executed a quitclaim deed to the land to Howard. The appellants, who were the heirs who did not join in the quitclaim deed, then brought suit against Howard attacking the validity of the judgment, ordering the sale, and under which he had purchased the land upon the ground that the lunatic had not been summoned, as required by section 53 of the Civil Code of Practice. A demurrer was sustained to this petition as amended, and the heirs appealed. We said:

"It is necessary, before attempting a decision of the ultimate question at issue, to decide whether this is a direct attack upon the validity of the judgment *** or a collateral attack *** since, if the former, no presumptions are to be indulged in favor of the judgment's validity, and even the verity of the record upon which it was entered may be questioned; whereas, if the latter, the judgment is presumably valid, and will not be declared void unless that fact affirmatively appears from the record.

The rule for determining whether an attack upon a judgment is direct or collateral is thus stated in Wayne v. Brumley, 190 Ky. 488, 227 S.W. 996: 'A direct attack is an action or motion for the specific and only purpose of setting aside or annulling the judgment of a court; and any action which has for its purpose the accomplishment of any relief other than the setting aside of the judgment is not a direct attack."'

It was held in this Gardner Case that the attack was direct, and that, inasmuch as the service upon the lunatic in the suit brought by his committee had not been in accordance with section 53 of the Code of Civil Practice, the judgment was void. Speaking to that point, we said:

"No rules are better settled in this state than that the power of a court to sell the land of a person under legal disability is purely statutory; that, unless the statute conferring the power is strictly followed, the sale is absolutely void; and that service of summons upon the owner, be he lunatic or infant, in the prescribed manner is a prerequisite to jurisdiction."

See, also, Baker v. Baker, Eccles & Co., 162 Ky. 683, 173 S.W. 109, 113, L. R. A. 1917C, 171.

If we keep in mind the distinction between a collateral attack and a direct attack upon a judgment and the presumptions that will be indulged in either case to support the attacked judgment, we will have no difficulty in understanding the cases and in putting the proper valuation upon the language used in them. Let us first attend to those cases where the attack was collateral.

The case of Carr's Adm'r v. Carr, 92 Ky. 552, 18 S.W. 453, 13 Ky. Law Rep. 756, 36 Am. St. Rep. 614, was a suit in which the plaintiff, claiming to be the widow of the deceased, sought a widow's interest in his estate. As in the instant suit, she claimed that a judgment for divorce which the deceased had procured against her was void because it had been obtained on a warning order in the affidavit to obtain which the deceased had stated that she lived in Stewart county, Tenn., but had failed to give her post office address as the Civil Code required. It was held that the failure to give the post office address in the affidavit for the warning order did not make the warning order void, but simply erroneous, and that all the Code...