Savin v. Delaney

• Decision Date: 30 April 1929
• Citation: 229 Ky. 226
• Court: United States State Supreme Court — District of Kentucky
• Parties: Savin v. Delaney.

229 Ky. 226

Savin v. Delaney.

Court of Appeals of Kentucky. Common Law and Equity Division.

Decided April 30, 1929.

1. Action. — Where in suit under Declaratory Judgment Act (Civil Code of Practice, secs. 639a1-639a12), warning order was issued against one of defendants and case was submitted before warning order had matured, court, having jurisdiction of subject-matter, erred in dismissing action, and should merely have set aside submission and required parties to complete their preparation of case with view to determining controversy when all parties were before the court, under section 3 (Civil Code of Practice, sec. 639a3); proceedings being governed by Civil Code of Practice, sec. 126, subsec. 3, and section 59, subsec. 7, and section 410.

2. Action. — In action for declaratory judgment under Declaratory Judgment Act, sec. 3 (Civil Code of Practice, sec. 639a3), in which persons not before court are interested in or affected by proceedings, court is under duty to make them parties or bring them before it or dismiss the action without prejudice.

3. Action. — Suit by lessee, under lease giving option to purchase, against lessor and another claiming written option to purchase

from lessor, and cross-petition by lessor for declaration of plaintiff's rights respecting the property, held within jurisdiction of court of county where land was situated under Declaratory Judgment Act (Civil Code of Practice, secs. 639a-1-639a-12.)

4. Courts. — Circuit Court and Court of Appeals on appeal have full power to render judgments respecting rights of parties concerning real estate within the jurisdiction under Declaratory Judgment Act (Civil Code of Practice, secs. 639a-1-639a-12.)

Appeal from Kenton Circuit Court

WILLIAM J. DEUPREE for appellant.

STEPHENS L. BLAKELY for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

Samuel Savin sued Anna Delaney and Harry Segal under the Declaratory Judgment Act (Civil Code, sec. 639a) to obtain a declaration of his rights respecting some real property in Kenton county, Ky. It appears that Anna Delaney owned some valuable property in Covington fronting 98 feet on Madison avenue and extending back 140 feet, which, by a written instrument dated February 12, 1929, she leased to Samuel Savin, for a term of 10 years. Savin paid Mrs. Delaney the sum of $1,000, upon the execution of the contract, and an additional sum of $11,500 was to be due upon the delivery of a formal lease. As further consideration Savin agreed to pay a rental equivalent to 4 1/2 per cent. per annum on $42,500. The contract contained an option of purchase at any time during the term of the lease, at the price $42,500. After paying the $1,000, and when about to pay the additional $11,500, Savin was notified by Harry Segal that he held an option on the same property, given by Mrs. Delaney in writing, and which he had elected to exercise. Because of these facts, Segal claimed a superior right to the possession of the property. Segal was a nonresident of the state, and process could not be served upon him personally. A warning order was made against him in accordance with the Civil Code. The defendant, Anna Delaney, filed an answer and cross-petition against Segal, and a warning order against Segal was made on the cross-petition. No proof was taken, and before either warning order had matured, the case was submitted and the circuit court dismissed the action. The reason for the dismissal was, as stated in an opinion, that "the true issue between the parties in this case is between Anna Delaney and Harry Segal, and as Harry Segal is a nonresident of this state and not before the court, this court cannot understand that an opinion of the court would help the parties herein in any way."

The submission was premature, but the court should not have dismissed the action. It should have set aside the submission and required the parties to complete the preparation of the case.

Section 3 of the Declaratory Judgment Act (Civil Code of Practice, sec. 639a3) provides: "Declarations of rights and determination of questions of...