Wagner v. Peoples Bldg. & Loan Ass'n

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, Justice.
• Citation: Wagner v. Peoples Bldg. & Loan Ass'n, 292 Ky. 691, 167 S.W.2d 825 (Ky. Ct. App. 1943)
• Decision Date: 15 January 1943
• Parties: WAGNER et al. v. PEOPLES BUILDING & LOAN ASS'N.

167 S.W.2d 825

292 Ky. 691

WAGNER et al. v. PEOPLES BUILDING & LOAN ASS'N.

Court of Appeals of Kentucky

January 15, 1943

Appeal from Circuit Court, Bell County; James S. Forester, Judge.

Action by the Peoples Building & Loan Association against Matt Wagner and others to foreclose a mortgage, wherein a default judgment was entered in favor of the plaintiff. Thereafter certain of the defendants moved to redocket the case and set aside the judgment on ground that it was void. From a judgment dismissing the motion, the defendants appeal.

Judgment reversed with directions to set aside the judgment and sustain the motion.

F. R Whalin, of Middlesboro, and H. L. Bryant, of Pineville, for appellants.

Robert J. Watson of Middlesboro, for appellee.

THOMAS Justice.

Prior to December 13, 1929, the appellant, Matt, Wagner, and his wife, Cora B. Wagner, executed their joint note to the appellee and plaintiff below, Peoples Building and Loan Association, whereby they agreed to pay it, at the due date therein prescribed, the sum of $800. To secure it the makers executed to appellee a mortgage on a parcel of real estate in Bell county. They were likewise required to and did subscribe for stock in the appellee corporation and which was pledged as an additional security for the indebtedness evidenced by the note, with a stipulation that if any monthly dues should become in arear and unpaid the lender could precipitate the due date of the entire indebtedness and proceed to collect it.

Following the loaning transaction Cora B. Wagner, who held the fee title to the mortgaged land, died intestate, leaving surviving her her husband, Matt Wagner, and the other eight defendants, and appellants, as her surviving children, all of whom were infants. Following her death and on December 13 1929, the indebtedness under the terms of the lending contract became due and payable and appellee filed an action in the Bell circuit court against the survivors of the deceased wife to enforce its lien to secure its debt, after crediting its amount by the cash value of the building and loan stock that had been taken out at the time of its creation, which left a balance due of $656.14. None of the infants had any guardian, but they were properly summoned and brought before the court, and a guardian ad item was thereafter appointed for them and made and filed his report in which he stated that he knew of no defense to the action. Thereupon the cause was submitted to the court--without the taking of any proof--and personal judgment was rendered, not only against the husband, but against each of the infant defendants, and an order of sale of the land was made, which was carried out as directed in the judgment by the Master Commissioner, at which the plaintiff in the action, appellee here, became the purchaser at the price of $800. The land was appraised, by those appointed for that purpose, at $1,000. The sale was confirmed without exceptions, followed by a later executed and approved deed to the purchaser by the Master Commissioner.

On April 18, 1941, pursuant to notice theretofore given, the infant defendants entered motion in the same court that rendered the judgment supra (five of whom had then passed the age of maturity) to redocket the case and to set aside the judgment on the ground that it was void for three reasons: (1) The allegations of the petition were insufficient to give the court jurisdiction to sell the inherited real estate of the infant defendants; (2) no proof in any manner was introduced or heard by the court ordering the sale of the property to prove any of the material allegations of the petition, and (3) that the default judgment (which was rendered on January 21, 1930) in such circumstances was unauthorized and void. The court sustained the motion to redocket the case, but the demurrer to the notice and the motion to set aside the judgment as being void (each of which stated the preceding facts) was overruled, and the motion dismissed, on the ground that the errors complained of were merely erroneous and correctable only by an appeal to the Court of Appeals and did not furnish grounds for a collateral attack. Whether or not the court was correct in that conclusion is the only question in the case.

At common law (shown to be so by cases and authorities hereinafter listed) courts of equity had no authority to decree a sale of the real property of infants, except, perhaps, in special instances, but now, probably every state in the union has enacted statutory conditions upon which such sales may be decreed. Among the conditions in which it may be done in this jurisdiction are, (x) a sale for maintenance of the infant; (y) a sale for the payment of debts of the ancestor, as well as debts of the infant created for necessities, including lien debts created by the ancestor upon the land while living, and (z) sales for the purpose of division among the infants, if there is more than one, and where the property is indivisible. There may be others, but it will not be necessary for the purposes of this case to enumerate them. The procedure for such decrees, for whatever purpose the sale is sought, must, therefore, be at least substantially complied with.

The rule appears to be universal (as also appears from the same cited authorities) that a judgment is void (a) when the court has no jurisdiction of the parties or (b) of the subject matter; it being necessary that both should exist before a valid judgment can be rendered. Jurisdiction of the person is obtained when the prescribed notice has been given to the litigant proceeded against to enable him to appear and make whatever defense he may have. That jurisdiction (of the person) appears to have been possessed by the court in this instance at the time it rendered the judgment directing the sale of the infant defendants' real estate. The question then is reduced to the inquiry as to whether the court then had jurisdiction of the subject matter?

In order to determine that question we should briefly consider what is comprehended by the phrase "subject matter" as employed in our various statutes permitting such decrees. The same authorities referred to supra--and hereinafter catalogued--clearly point out that the "subject matter" is not confined within such authorizing statutes to the thing or the res, the title to which is sought to be divested from the infants; but, on...