Small v. Reeves

• Decision Date: 20 November 1896
• Parties: SMALL et al. v. REEVES et al.
• Court: Kentucky Court of Appeals

37 S.W. 682

SMALL et al. v. REEVES et al.

Court of Appeals of Kentucky.

November 20, 1896

Appeal from circuit court, Todd county.

"To be officially reported."

Action by William Small and others against W. L. Reeves and others to vacate a judgment. From a judgment in favor of defendants plaintiffs appeal. Affirmed.

B. F Procter, Thomas H. Hines, and W. H. Yost, for appellants.

E. W Hines and Forgy & Petrie, for appellees.

LANDES J.

The object of this action was to vacate a judgment rendered in the Todd circuit court, in equity, at the November term, 1887, by which certain lands belonging to the appellant William Small were subjected to pay several debts alleged to have been incurred by him, which they were mortgaged to secure; one of said mortgage debts being in favor of the appellee W. L. Reeves, and another in favor of one B. D. Johnson. The action in which the judgment was rendered was commenced by the said B. D. Johnson; and John S. Small, a brother of appellant William Small, and bound jointly on the debt of appellee Reeves with him, together with the wife of said John S. Small, and the said William Small, and appellee Reeves, were made defendants. The debt of appellee Reeves against the said John S. and William Small was for the sum of $2,556, evidenced by their joint note; William Small's half of said note, as claimed, being the price of a tract of land, and the amount of a fee which he owed Reeves for services rendered by Reeves as attorney. No defense was made to the action by either of the parties, and, appellee Reeves having set up his note and mortgage by cross petition against the obligors, judgment by default was rendered on the debts sued on, and the mortgaged lands subjected by decree of sale to the payment and satisfaction thereof. The decree requiring that the lands should be sold by parcels, the appellant William Small united with his brother, John S. Small, after the decree was rendered, in a written request to the commissioner to sell the lands as a whole, as they believed that they would bring much more than enough to pay all of the judgment debts, and agreeing, in that event, to unite with the commissioner in a deed to the purchaser. The lands were sold accordingly, and more than enough was realized for them to pay the debts; and bond for the amount of the purchase money in excess of the judgment debts and costs was executed, and paid to them. The remedy by which the vacation of the judgment was sought is provided by section 518 of the Civil Code; the ground alleged for the relief prayed for being, in substance, that the appellant William Small, at the time of the execution of the notes and the mortgages to secure them, was of unsound mind, and incapable in law of contracting, and it was alleged that he had been in a condition of mental unsoundness from his birth, and that at no time had he possessed sufficient mental capacity to trade or to transact business. For this reason the prayer of the petition was that the judgment might be vacated and set aside, and that the appellant William Small might be allowed to make defense to the mortgages he had executed. If, at the time of the commencement of the action in which the judgment sought to be vacated was rendered, and during the pendency of the action, the appellant William Small was of unsound mind, and therefore incapable of making an intelligent defense to the action, that fact, as held by this court in the case of Bean v. Haffendorfer, 84 Ky. 685, 2 S.W. 556, 3 S.W. 138, is such "a misfortune," within the meaning of subsection 7 of section 518 of the Civil Code, as will authorize the court to vacate or modify the judgment. And in such actions the proceedings on the petition are required to be the same as those in the action in which the judgment, the vacation of which is sought, was rendered. Civ. Code, § 520. That action having been in equity, it follows that this action was properly commenced in equity, and, under the provision of the section of the Civil Code last referred to, all proceedings in the action of the court below were not only properly, but they were necessarily, in equity. Civ. Code, §§ 6, 11, 12; Newm. Pl. & Prac. pp. 224-241.

The appellee W. L. Reeves being the regular judge of the circuit courts of the Seventh district, which embraces the county of Todd, and being disqualified to preside in the action, Judge F. H. Bristow was elected special judge at the December term, 1893, of the court, by the attorneys of the court "to sit in the cause," as the order recites, in pursuance of section 968 of the Kentucky Statutes. The special judge so elected at once qualified by taking the prescribed oaths, and several motions were made before him, and were acted on by him in the case, at that term of the court, and the case was continued. It does not appear, from the record, that any steps were taken in the case at the next March term of the court, but at the following July term several motions were made in the case before the same special judge by the attorneys representing both sides, and among them was a motion by the attorney for the plaintiffs (appellants here) to submit the case for judgment, which motion was overruled by the special judge, and further time was given to complete the preparation of the case for trial. It does not appear, in the meantime, that Judge Bristow had been re-elected as special judge, or that any other person was chosen to preside on the trial of the action, and, Judge Bristow being thus recognized as special judge by the attorneys on both sides, no objection was made to his sitting in the case for any cause whatever until the December term, 1894, of the court. Referring to the steps taken at that term of the court, we find, first, a motion made before Judge Bristow, presiding as special judge, by the attorneys for the defendants (appellees here), to submit the cause for trial, which was objected to by counsel for the plaintiffs. Pending this motion, however, the plaintiffs, through their counsel, offered to file a reply and cross petition to the answer of Coleman and Gill, defendants to the action, and moved, also, that the Bank of Elkton and one John W. Muir be made parties to the action, which motion was objected to on behalf of the defendants. But, pending the hearing of the motion, the plaintiffs filed the affidavit of T. F. Small, a brother of plaintiff William Small, and who was suing as the next friend of the latter, "stating his grounds, and asking that F. H. Bristow, special judge, who was presiding in the case, vacate the bench for reasons given in the affidavit." The reasons referred to in the order were set out in the affidavit as follows: "That he [T. F. Small, the affiant] has this day filed in open court, or offered to file in open court, before F. H. Bristow, special judge, a petition for a change of venue, and also a reply and cross petition to the answer of Coleman and Gill, and he says said Bristow is related to H. G. Petrie, president of the said Bank of Elkton, being his brother-in-law, and that said Bristow is partial to said Reeves, defendant, and is greatly under the influence of said Reeves, and will not grant plaintiffs a fair and impartial trial, either upon the motion for a change of venue, nor motion to file their reply and cross petition, nor upon the motion of defendants to submit this cause for trial and judgment, nor any other motion in same." The record exhibits the following action of the special judge upon this request for him to vacate the bench, based upon the affidavit quoted from, namely: "The court, having heard said affidavit and the argument of counsel thereon, adjudged that it was insufficient, and that it came too late, and after other motions had been made preparatory to a trial of this cause, at a previous term of this court, and thereupon refused to vacate the bench." Afterwards, in acting upon the motion to file the reply and the cross petition against the Bank of Elkton and John W. Muir, the court permitted the reply to be filed, but refused to allow the cross petition to be filed; and so much of the reply as constituted the cross petition was accordingly stricken out. Following this, the plaintiffs offered to file an amended petition, which was refused by the court. Then the plaintiffs moved the court "to transfer this cause to the proper docket, and to have a jury to try the issues of fact," which motion was likewise overruled by the court. The next order shows that the parties came, "and by their attorneys the plaintiffs filed their petition for a change of venue, and the affidavits of [several persons, named in the order] in support of same, and moved the court for a change of venue of this action," which motion was objected to by the defendants, who filed a counter affidavit of a number of persons, named in the order. The court overruled the motion for a change of venue, and sustained the motion of defendants' counsel to submit the cause for trial.

The foregoing steps were taken in the order in which they are detailed on the 8th day of December, 1894, in open court, and the petition for a change of venue was filed in open court on the same day. But during the first week of that term of court, the Bank of Elkton and defendants Reeves and Coleman were notified in writing by the plaintiffs that the petition for change of venue, with affidavits and an amended petition had been filed in the office of the clerk of the court, and that the plaintiffs would move to file them in open court in this case on the 15th day of December, 1894, "or as soon thereafter as a judge is qualified to sit in said case." The intention to file these papers in open court on the day named in the notice, however, was abandoned, for, as has been stated, they were filed one week...