First State Bank, Pineville v. Asher

Opinion op the Court by Oread, Commissioner™ Reversing. ■ ■ R. W. Asher died testate while a citizen- and resident of Bell ■ county.. Under--his will-which'was duly-probated he devised all his real estate to Billon Asher and other ,sons, but made, pecuniary ^bequests to, chil *575 dren of kis daugkter, Fannie Asker, wkick ke provided skonld be paid ont of tke estate devised to kis sons and to ke a lien- tkereon. In February, 1934, certain ckildren of Fannie Asker, to wkom pecuniary bequests kad keen made, instituted tkis equitable action against Dillon Asker and tke otker sons of testator asking for a judgment for tke sums bequeatked to tkem and for tke enforcement of tke lien provided for in tke deed to secure payment, of same, and tke otker ckildren of Fannie Asker later intervened asking tke same relief. Without entering into detail it is sufficient to say tkat tke land devised to tke sons kad been partitioned and tke tract allotted to Dillon Asker was sold by the-master commissioner under a decree entered in tke action pursuant to tke prayer of tke petition, and R. W. Asker, a son of Dillon Asker, kecame tke purckaser fortke sum of $526 for wkick ke executed kond. Previous to tke sale, tke land was appraised as provided ky law and tke appraisers fixed its value at $800. Tke commissioner’s report of sale was duly confirmed. After tke land kad been sold ky tke commissioner, tke First. State Bank of Pineville, kereinafter called tke bank,, filed an intervening petition setting up tke judgment, wkick kad tkeretofore been granted it ky tke Bell circuit court in an ordinary action against Dillon Asker and otkers for tke sum of $166.20 witk interest from December 28, 1933, and alleged tkat it later caused an execution for tke amount of tke debt, interest, and costs, to be levied upon tke land of Dillon Asker wkick was; sold ky tke skeriff; tkat at a sale made under tke execution it became tke purckaser of tke land for tke sum of $226.42, tke amount of its debt, interest, and costs, wkick was less tkan two-tkirds of tke appraised value of tke land as fixed ky appraisers appointed by tke skeriff before making tke sale; tkat tke skeriff issued a certificate of purchase to it; tkat by reason of’tke matters set up it kad a lien upon tke proceeds of tke sale bond taken by tke commissioner inferior only to tke lien of plaintiffs. It prayed tkat it ke adjudged entitled to recover out of tke proceeds of tke sale kond taken ky tke commissioner, its dekt of $226.42, with interest. At tke November, 1936, term of tke court it was adjudged that tke kank kad a lien upon any funds derived .from tke sale bond second to tke lien of plain *576 tiffs and that after satisfaction of plaintiffs’ claim the master commissioner was directed to apply the proceeds of the sale bond to the satisfaction of the claim of the bant Another intervener was adjudged a lien on the proceeds of the sale bond inferior to that of the bank. At the January term, 1937, Dillon Asher filed his motion to set aside the judgment entered at the November term giving the bank a lien on the proceeds of the sale bond on the ground that it was void. In this motion it was stated that the intervening petition was filed more than a year after filing of the original petition in the action and after he had been summoned in the original action; that the bank caused no summons to be issued on its intervening. petition and none was issued; that he had not been served with summons on the intervening petition and had no notice of any kind ■of its filing and for that reason made no defense; that notwithstanding such facts the bank took judgment and was attempting to appropriate some of Ms money for which his homestead was sold, although it had no lien 'On the land or on the money. At the same term of the court the motion to set ■aside and' vacate the judgment was overruled and Dillon Asher saved exceptions but has prosecuted no appeal from the judgment sought to be set aside nor from the order overruling the motion. Thereafter the execution which issued upon the sale bond executed by R. W. Asher was levied upon the land purchased by him and on February 22, 1937, the land was sold under the ■execution after having been duly' appraised as required by law for the sum of $226.42. On the date of the sale made by the sheriff, Dillon Asher appeared and made ■exception to the sale, his exception being set forth in writing, his first ground being that R. W. Asher had no interest in the land except that at the sale made by the commissioner he attempted to purchase the land and executed bond but had not paid the sale bond or any part thereof, but that he (Dillon Asher) had satisfied the judgment in favor of the plaintiff in the action and that the judgment in favor of another intervener had been fully paid by him; that the judgment in favor ■of the bank was unauthorized and void; that the sale of the land by the commissioner except for payment of the .judgment in favor of plaintiffs was unauthorized and in 'violation of the homestead statutes of the state. After the sheriff had made his report of sale made *577 under tke execution, Dillon Asker filed exceptions thereto wherein he set forth at length and witk particularity kis right to a homestead in tke land.sold and tke failure of tke skeriff to comply witk tke komestead statutes ini making tke sale and prayed tkat tke sale made by tke skeriff under tke execution and tke sale made by tke master commissioner be set aside and declared void.. Tke bank interposed a demurrer to tke exceptions and filed a response controverting same; and also set up tke judgment rendered at tke January term, 1937, and tke judgment overruling Dillon Asker’s motion to set same aside; and alleged tkat suck judgment denied Dillon Asker a komestead in tke land and same was in full force and effect and had never been appealed from,, vacated, modified, or set aside; tkat by reason of the matters thus enumerated tke circuit court had lost jurisdiction of tke ■ matters set up in tke exceptions and Dillon Asker was and is estopped and precluded from having same again heard. It further set up matters; unnecessary to enumerate. After hearing evidence on the exceptions they were sustained and it was adjudged tkat Dillon Asher was. entitled to a homestead in the land in controversy and same was exempt from sale under execiition, attachment, or judgment, and not subject to tke debt of tke bank. From tkat judgment tke bank is appealing. Tke evidence introduced on hearing of tke exceptions took a rather wide range and related to matters and proceedings in tke common-law action against Dillon Asker and matters connected witk this action which we do not deem pertinent since this is not a proceeding-to set aside, vacate, or modify any of tke judgments or orders entered by the court in either action, except the judgment on tke exception to tke report of sale made-under execution which issued on tke sale bond taken by tke master - commissioner. As we view tke matter tke only question witk which we are concerned is tke effect to be given tke judgment entered at tke January term, 1937, adjudging appellant a lien on tke proceeds of the sale bond taken by tke commissioner and directing tkat same be paid to_ it, after satisfying tke claim of plaintiffs in this action. Counsel for appellee rely on tke case of G-reenhill’s Adm’rs v. Oppenkeimer et al., 255 Ky. 221, 72 S. W. (2d) 1037, authorizing and supporting tke judgment, appealed from. But because of tke judgment giving tfi *578 -appellant a lien on the proceeds of the sale bond and directing that same be paid it, the situation and circumstances are entirely different from those of the case relied on. As already indicated the judgment giving appellant a lien on the proceeds of the sale bond has not been modified, vacated, or set aside, and there has been no appeal from it or from the order overruling the motion to set it aside. The power of the court to modify, set aside, or vacate its judgment at the term at which same was entered is inherent, broad, and comprehensive, and not dependent upon statutes regulating new trials. South Mountain Coal Co. v. Rowland, 204 Ky. 820, 269 S. W. 320; Morris v. Morris, 225 Ky. 823, 10 S. W. (2d) 277; Clements v. Kell, 239 Ky. 396, 39 S. W. (2d) 663; Welch v. Mann’s Ex’r, 261 Ky. 470, 88 S. W. (2d) 1. But after the adjournment of the term in which the judgment is rendered the court is without jurisdiction or power to set it aside, except in a way and manner provided by the Civil Code of Practice, section 518. Sauerman Brothers v. Roberts, 266 Ky. 815, 100 S. W. (2d) 225. The judgment giving appellant a lien bn the proceeds of the sale bond was a final order and appeal-able. On sufficient showing it might be vacated or modified by appeal; or by the lower court for causes specified in the Civil Code of Practice. Forrester v. Howard, 124 Ky. 215, 98 S. W. 984, 30 Ky. Law Rep. 375, 124 Am. St. Rep. 394. But until modified, vacated, or set aside, it was conclusive and binding upon the parties, and the court was in error in rendering the judgment at a subsequent term while the former judgment was in full force and effect. When the court overruled -app.ellee’s motion to set aside the judgment, his remedy was by appeal, which is still open to him. Wherefore the judgment is reversed, with directions to set it aside, and for proceedings in conformity with this opinion.