Steel v. Stearns Coal & Lumber Co.

• Decision Date: 16 May 1912
• Citation: 148 Ky. 429,146 S.W. 721
• Parties: STEEL v. STEARNS COAL & LUMBER CO. et al.
• Court: Kentucky Court of Appeals

146 S.W. 721

148 Ky. 429

STEEL v. STEARNS COAL & LUMBER CO. et al.

Court of Appeals of Kentucky.

May 16, 1912

Appeal from Circuit Court, Wayne County.

Action by Lurana H. Steel against the Stearns Coal & Lumber Company and others. From a judgment dismissing the petition plaintiff appeals. Affirmed.

W. R Cress & Son, of Monticello, for appellant.

Joseph Bertram and Harrison & Harrison, all of Monticello, for appellees.

HOBSON C.J.

On September 27, 1866, William Carson purchased from E. B. Rice a tract of land in Wayne county and executed to Rice, for the purchase money, his note for $300 due in two years. The note was afterwards assigned to William Koger. William Carson died prior to the year 1872, and on October 24, 1872, Koger brought a suit against the widow and children of William Carson to enforce his lien on the land. One of Carson's daughters, Lurana H. Steel, was a nonresident of the state and was proceeded against by warning order. No judgment was rendered until the year 1880, when a judgment was entered for a sale of the land to satisfy the debt. The sale was made in January, 1881. It was reported to the court and confirmed and a deed was made to Koger, who held the land until his death some six or eight years ago. After his death, his heirs at law sold and conveyed the land to J. H. Gibson and W. A Kinney, who are the remote vendors of the Stearns Coal & Lumber Company and the New Domain Oil & Gas Company. Lurana H. Steel brought this suit on August 24, 1910, against these companies to recover her part of the land as heir at law of her father, on the ground that she was not before the court in the action referred to and that the judgment as to her was void. The circuit court dismissed her petition, and she appeals.

The record of that case has been brought up with the transcript of this appeal. It appears from that record that, on the day the petition was filed, the clerk made a warning order against Lurana H. Steel and her husband, Hobson Steel, and appointed J. J. Richardson, a regular practicing attorney, to correspond with them. It is insisted that this warning order is void because there is no affidavit in the record to support it. There is written upon the petition, evidently in the handwriting of the draftsman, an affidavit for a warning order; but Koger seems to have signed the petition and not the affidavit. In other words, it would seem from an inspection of the paper that Koger signed it in the wrong place. It is insisted for Mrs. Steel that, as Koger did not sign the affidavit, it is not an affidavit within the meaning of the Code, although the jurat signed by the clerk appears on the paper, and the affidavit otherwise conforms to the statute then in force. It is also insisted that, as the record shows a defective affidavit, it cannot be presumed that a sufficient one was filed. But we do not deem it necessary to pass upon this question. The suit was filed in 1872, but no steps seem to have been taken upon this warning order. In April, 1880, another warning order was made and another person appointed warning order attorney. This attorney filed his report, and after this the case was duly submitted and the judgment rendered. It must be presumed that, when the court directed the second warning order to be entered, it had...