Spencer v. Parsons

• Decision Date: 20 February 1890
• Citation: 89 Ky. 577,13 S.W. 72
• Parties: SPENCER et al. v. PARSONS et al.
• Court: Kentucky Court of Appeals

13 S.W. 72

89 Ky. 577

SPENCER et al. v. PARSONS et al.

Court of Appeals of Kentucky.

February 20, 1890

Appeal from circuit court, Marion county.

"To be officially reported."

Harrison & Belden, for appellants.

Samuel Avritt, for appellees.

HOLT J.

This is an effort to enforce a judgment against the separate property of a married woman, rendered when she was such feme covert. The lower court, upon demurrer to the petition dismissed the action. This court, upon appeal, said, in substance, that the judgment sued upon might, or might not be void. If based upon her tort, or a contract executed by her dum sola, or rendered when she was a feme sole, it would not be void; but, if founded upon a claim of such a character as would ordinarily support only an ordinary action, then, as it would be void as to her, so would any judgment against her upon it. This view was taken after as careful an examination and consideration of the authorities as was possible, and the opinion of the court will be found in 83 Ky. 305. As the character of the claim upon which the judgment had been rendered did not appear from the petition, this court reversed the judgment, dismissing it, and remanded the cause for further preparation. The issues having been formed by proper pleading, and a part of the record of the suit in which the judgment sought to be enforced was rendered being in evidence, the lower court rendered a decree enforcing the judgment against the property of the feme covert, and she has appealed.

The record of the old suit filed in this one sufficiently identifies it as the action in which the judgment sued upon was rendered. The pleadings in this suit give the style of the action, and the court in which the judgment was rendered and the record in evidence conforms thereto. It shows, also that the claim was not of a character authorizing the personal judgment against the female appellant, who was then a married woman; and the question is therefore presented whether she can now resist its enforcement against her property upon the ground that it is void by reason of her coverture when it was rendered. The opinion upon the former appeal substantially decided the question. It is contended however, with earnestness and ability, that it must be treated as erroneous only; that it cannot, therefore, be assailed collaterally, and the party can obtain relief from such a judgment only by vacating it by a direct proceeding, or an appeal from it. The proceedings authorized by our Code of Practice for reversing or vacating a judgment apply where it is merely erroneous, and therefore voidable. If it be void, however, it may be resisted in any court of general jurisdiction, and not merely in the court which rendered it. Although, therefore, the judgment in question was rendered in a different circuit court from that in which this action was brought, yet if it be void the appellant may defend against it, because no subsequent proceedings can be based upon a void judgment. It is well settled that a judgment which is merely erroneous cannot be assailed collaterally. If the court has jurisdiction of the person and the subject-matter, then, however irregular may be the proceeding, the judgment is...