Thomas v. Ireland

• Decision Date: 16 May 1889
• Citation: 11 S.W. 653,88 Ky. 581
• Parties: THOMAS et ux. v. IRELAND et al.
• Court: Kentucky Court of Appeals

11 S.W. 653

88 Ky. 581

THOMAS et ux. v. IRELAND et al.

Court of Appeals of Kentucky.

May 16, 1889

Appeal from circuit court, Hancock county; LUCIUS P. LITTLE, Judge.

"To be officially reported."

Action by John C. Thomas and wife against J. B. Ireland and others to set aside and vacate a judgment. Demurrer to petition sustained, and plaintiffs appeal.

G. W Williams & Son and W. S. Roberts, for appellants.

W. W Ireland and Miller & Morrison, for appellees.

BENNETT J.

In 1880, upon the petition of J. B. Ireland and cross-petition of Joel Marshall against the appellants, the Hancock circuit court rendered judgment enforcing mortgage liens upon a tract of land belonging to the appellant Mrs. Thomas, which was executed by her and appellant J. C. Thomas to the appellee J B. Ireland and Joel Marshal. The return of the sheriff of Hancock county showed that summons was served upon both of the appellants in each case. The judgment was rendered by default, and the land was sold to satisfy the judgment, and purchased by Joel Marshal. In 1885 the appellants instituted this action in equity against the appellee J. B. Ireland and the representatives of Joel Marshal, he having died, to set aside said judgment upon the ground that summons was not served upon the appellant Mrs. Thomas to answer either the petition or cross-petition; that the return of the sheriff showing that the summons in both petitions had been executed on her, which was false, was brought about by the appellant J. C. Thomas, who induced the sheriff not to serve the summons upon Mrs. Thomas, but to indorse the same executed upon her, in order to conceal from her the fact that her land was in danger of being sold to satisfy the mortgage debts, which were his, and not hers; which conduct, it is alleged, was a fraud upon her. It is not alleged that the appellee J. B. Ireland and Joel Marshal, or either of them, were participants in this wrong-doing, or had any knowledge of it whatever.

It is well settled by this court that where the plaintiff acts in good faith in obtaining a judgment upon the return of the sheriff, endorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive as between the plaintiff and defendant. The stability of judgments requires this rule; otherwise judgments settling the rights of parties and giving remedies for the enforcement of these rights could never be...