Webb v. Webb

• Decision Date: 22 February 1921
• Parties: WEBB ET AL. v. WEBB ET AL.
• Court: Kentucky Court of Appeals

228 S.W. 13

190 Ky. 574

WEBB ET AL. v. WEBB ET AL.

Court of Appeals of Kentucky.

February 22, 1921

Appeal from Circuit Court, Letcher County.

Action by E. T. Webb and others against Lula Webb and others. From a judgment for plaintiffs and from an order overruling a motion to set aside the judgment, the infant defendants appeal. Affirmed.

W. G Dearing, of Frankfort, and Robt. Blair, Sr., and W. French Hawk, both of Whitesburg, for appellants.

David Hays and Salyer & Baker, all of Whitesburg, and E. C O'Rear and J. C. Jones, both of Frankfort, for appellees.

CLAY C.

In the year 1892 E. T. Webb and wife conveyed to their son, J. J Webb, a tract of land in Letcher county, in consideration of the latter's agreement to take care of and provide for them as long as they lived. In the year 1904 J. J. Webb died leaving a widow, Liza Webb, who afterwards married John D. Fugate, and three children, Lula Webb, Joda Milton Webb, and Royn Edward Webb, all of whom were under the age of 14 years.

On April 28, 1905, E. T. Webb brought suit against the widow and infant children of his son to set aside the deed on the ground that his son had failed to comply with his agreement to take care of him and his wife, and that, after his death, his widow and children were unable and had failed to comply with the agreement. On the day the suit was filed a summons was issued for each of the defendants and returned by the sheriff as follows: "Executed by delivering each of the within Dfts. a true copy of this summons, this May 1, 1905." On August 31, 1905, R. M. Fields was appointed guardian ad litem for the infant defendants. He filed his report on September 5, 1905. Thereafter other process was issued and served on the infants, but, in view of the conclusion of the court, it is unnecessary to set out the return or to pass on its sufficiency. Proof was taken, and on submission of the case there was a final judgment canceling the deed. Thereafter E. T. Webb sold the land to S.E. Adams, and in the month of January, 1915, the infant defendants made a motion to set aside the judgment on the ground that the guardian ad litem was appointed and filed his report before they were served with process, and that the guardian ad litem made no report after they were summoned.

Thereafter the papers were lost, and an order was entered directing the master commissioner to supply the lost papers. Later on a report was filed in the name of the master commissioner by Stephen Combs, Jr., deputy master commissioner of the Letcher circuit court, stating, in substance, that he had held a sitting for the purpose of supplying the papers, and that W. G. Dearing had presented to him what purported to be a true copy of the entire record which was lost, and made an affidavit that the same was a true copy of all the papers in the case, and that he found the papers so presented to be true copies of the ones lost and sought to be supplied. It was ordered that the report lie over for exceptions, and, none having been filed, the report was subsequently confirmed by an order of court.

The motion to set aside the judgment was overruled, and from this order, as well as from the judgment itself, the defendants, who were still infants, prosecuted this appeal.

Appellees not only moved to strike from the transcript certain portions of the record originally filed, but objected to the filing of a supplemental record on the ground that the record which was lost was not supplied in the manner provided by law. In reply to this contention it is sufficient to say that the regularity of the method adopted for the purpose of supplying lost papers below cannot be questioned for the first time on appeal, where the parties complaining had an opportunity to except below, but failed to do so.

The chief complaint of appellants is that the judgment was void because the infant defendants were not properly served with process. Section 52, Civil Code, provides:

"If the defendant be under the age of fourteen years the summons must be served on his father, or, if he have no father, on his guardian; or, if he have no guardian, on his mother; or, if he have no mother, on the person having charge of him."

In the case of Rodgers v. Rodgers' Adm'r, 31 S.W. 139, 17 Ky. Law Rep. 358, process was executed as follows:

"Executed April 12, 1892, on Sophia Rodgers, Cathie Rodgers, Mary Rodgers, and Annie Rodgers, by giving to each of them a copy of this summons."

Annie Rodgers was the mother of the infants, Sophia Rodgers, Cathie Rodgers, and Mary Rodgers, and their father was dead. In holding the service good, the court said:

"Here the petition showed that the father was dead; and, while it did not show that they had no guardian, yet it showed that Annie Rodgers, who was also made a defendant by the same pleading, and summoned with them, was their mother. It is true that the return shows that a copy of this summons was unnecessarily delivered to each of the infants, and that it fails to show that the copy delivered to Annie Rodgers was delivered to her as

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