Settle v. Triplett

• Decision Date: 22 March 1968
• Citation: 426 S.W.2d 423
• Parties: William A. SETTLE, Appellant, v. George V. TRIPPLETT, Committee for Harvey Willett, an Incompetent, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 423

426 S.W.2d 423

William A. SETTLE, Appellant, v. George V. TRIPPLETT, Committee for Harvey Willett, an Incompetent, Appellee.

Court of Appeals of Kentucky.

March 22, 1968.

Thomas E. Sandidge, Sandidge & Sandidge, Owensboro, for appellant.

Grover C. Cox, Owensboro, for appellees.

DAVIS, Commissioner.

This appeal presents a facet of the controversy respecting the potential rights of Harvey Willett to a share in the estate of Joseph G. Settle, deceased. See Willett v. Triplett et al., Ky. (decided March 29, 1968).

William A. Settle, the appellant, initiated a proceeding under CR 60.02 in the Daviess County Court attacking that court's order appointing George V. Triplett as Committee for Harvey Willett. The county court entered a judgment denying the relief, and Settle appealed to the Daviess Circuit Court where judgment was rendered affirming the ruling of the Daviess County Court. It is from the latter ruling that this appeal is prosecuted.

The appellant contends that the order appointing Triplett as Committee for Harvey Willett was void ab initio because the county court had no jurisdiction of the parties or the subject matter involved.

It is asserted for appellant that the appointment of the committee by the county court was illegal in that there was not substantial compliance with KRS 387.025 and KRS 395.016 relating to fixing a time for hearing of such an application and providing for notice of the time, place, and purpose of the hearing at least five days prior to the date of hearing. The record reflects that when the application for appointment of the committee was filed in the county court there was no date set for hearing nor notice by registered mail furnished to any person. However, there was a showing that some of the persons who would have been entitled to notice purportedly waived notice as permitted by KRS 395.016. The appellant assails the efficacy of the attempted waivers of notice in some detail, but our view of the case makes it unnecessary for us to consider these arguments in depth.

The order appointing appellee as committee was entered by the county court on February 25, 1965. The motion to vacate and set aside that order, which initiated the proceeding now on appeal, was filed in the county court on May 5, 1966. A hearing on the merits of the motion was held by the county court, and all persons having any legal interest in the matter were before the court and had full opportunity to present all legal objections to the validity of the original order of appointment. It seems to us that the rationale of Logsdon v. Logsdon, Ky., 334 S.W.2d 919, rules the present appeal. In Logsdon an effort was made in the county court to set aside the appointment of a guardian made in that court. It appeared in Logsdon that there were procedural irregularities as to notice and naming of parties respecting the original application for appointment. However, when the appointment was attacked, there were various hearings at which all of the interested persons were afforded opportunity to be heard. In Logsdon the court pointed out:

'* * * As a procedural matter it would have been better practice for the county court to have set aside the original order and re-entered it after the hearing on appellant's motion, but this was the legal effect of what was done and the form of the order is not material on the basic issue in the controversy.

'Insofar as appellant is concerned, the initial irregularities in the proceedings for appointment of a guardian were cured by the subsequent procedures in the county court...