Duff v. Combs

— 712 — Opinion op the Court by Judge O’Eear. C. A. Duff died intestate prior to 1895 a citizen.' of Breathitt county. He was survived' by a widow and several children, and children of a deceased daughter, a number of whom were infants, and some of them under 14 years of age. The decedent owned two-tracts of land in Breathitt county, comprising about. 200 acres each. E. O. Tutt, who claimed to- be a creditor of the decedent, brought this suit in the Breathitt, circuit court to settle the estate. He described the lands above named, set out his debts, one of which, was a note executed in 1874, and nothing showing that, it w'as not barred many years before the suit was brought. The widow and children and grandchildren were made defendants. The petition alleged that there was no personal estate, and ashed that enough of the land "be sold to satisfy the debts of the decedent. Whether the summons issued against the defendants was ever served upon any of them is not shown. None of them appeared. A guardian ad litem filed a perfunctory answer for the infants, and then paid no further attention to the case. A reference to the master commissioner was directed to audit claims. Plaintiff Tutt appeared! before the master commissioner and gave his deposition. The. commissioner’ says he notified the parties. How is. not shown. Perhaps it was- by advertisement in a newspaper, as the order of reference directed that, course among others. Claims amounting to about. $175 were presented and allowed. About three years later there was a judgment entered' decreeing á sale, of the two tracts of land described in the petition, or — 713 — so much as might be necessary to pay the diebts allowed in the commissi oner’s report and the cost of the action. The commissioner sold the land, all of it, for $385.45. The two tracts were not sold separately, but sold together it appears. A deed was made to the assignee of purchaser in the course of a year or so. Two or three years later the purchaser was awarded a writ of possession. Then the widow1 and children seem to have become aware that they had been sued and their home had been sold'. They moved the court to set aside the judgment ordering the sale and the judgment awarding the writ of possession. The court at first overruled the motion, but subsequently, upon notice to the vendee of the purchaser (S. S. Combs), did set aside the judgment of sale. In the meantime the plaintiff in the suit-had died, and for more than a year the suit was not revived. It is not revived -yet .so far as that plaintiff is concerned. But he-was not the only plaintiff. -A creditor who files a suit to settle the estate of a deceased person brings the action necessarily on behalf of all other creditors, who by filing their claims become parties to the action. Civ. Code Prac. section 432. So, when E. C. Thtt died, and his claim was suffered to abate, the action was nevertheless on the docket for all other claimants who had appeared in the action. The original plaintiff could not have dismissed the suit to the prejudice of the other creditors. His death removed him from the case. Thereafter the personal interest he had' represented devolved upon his personal representative. But the latter by failing to revive his intestate’s cause of action could not prejudice the right's of the other creditors- Though they may not have appeared on — 714 — the docket as plaintiffs, their interest made them such, and' the court could have and should have ordered one or more of them to have assumed the active position of plaintiff on the record for the benefit of the others, if their interests were still unsettled. There may be other and sufficient parties before the court, although revivor as to one party may be barred. Gardner v. Roberts, 4 Ky. Law Rep. 614. But in this case the purchaser (now appellant S. S. Combs) had paid off the purchase-money bonds executed at the sale of the land-. Presumably the creditors had all been paid their debts. Combs, then, was- the sole party in interest, opposed to the heirs of Duff. This case has been loosely practiced1, speaking by the record. It is not disclosed that a summons was ever served upon any party to the suit — adult or infant. Nor did any appear till long after the judgment of sale had been entered and executed. The petition in the case prayed for the sale of enough of the land's of the intestate, subject to the homestead of the widow, to pay his debts-. As stated, the judgment rendered was for a sale of all the land, without allotting homestead. The errors we notice are-: (1) The failure to have service upon any of the defendants. (2) The appointment of the guardian ad litem for the infants before they had been- summoned, or before any person had been summoned for them. Civ Code Prao. section 36. (3) Entering the decree of sale in spite'of and beyond the prayer of the petition. Civ. Code Prac. section 90. (4) Entering judgment at all without summons or appearance of the defendants. (5) Confirming a sale of two separate tracts of land, which sold1 as a whole, when the law directed a sale in par — 715 — cels. (6) All subsequent proceedings1 save the order setting, aside the judgment of sale. The nature of these errors varies.. The. decree and proceedings under it without the defendants having been summoned or appearing is void. The decree for relief beyond the prayer of the petition (when, defense is not made( is a clerical misprison. The other errors are such as may be corrected by appeal from the final judgment within the time allowed by law. Before an appeal could be prosecuted from a void judgment or a clerical misprison, a motion to correct the judgment in. the lower court must first be acted on by that tribunal. The notice was given in this case to S. S. Combs, the purchaser, and the only remaining party in interest. It wa.s served upon J. J. C. Bach as his attorney. It was also served upon the attorney of record for the plaintiff. Neither Mr. Bach nor Combs appeared, at least the record does not show that either appeared. If the notice was served upon one not an attorney for a party, the attorney should disclaim the relation. It is presumed that one who appears or suffers himself to be treated as the attorney for a party to a suit is the attorney for that party. Mr. Bach appears in this court for Combs. The sheriff’s- certificate is that he executed the notice upon J. J. C. Bach; “he being attorney for S. S. Combs.” The relationship of Bach at that time to Mr. Combs is not now disclaimed. We think the notice was sufficient. It is argued for appellant Combs that the fact the record fails to disclose whether summons- was served proves nothing; that the presumption is it was served. In a collateral attack upon a judgment that is the presumption. But this is not a collateral, but a direct, — 716 — -attack upon the judgment. It is both by motion to vacate the judgment, and by appeal from it. In that state of case the record must sustain itself. See Francis v. Lilly, 124 Ky. 230, 98 S. W. 996, and oases there reviewed. The. appeal of Duff’s heirs against Combs may have been unnecessary, as the other appeal, that of Combs v. Duff’s Heirs, probably brought up- the whole question. But. the matter is here without objection to the form of appeal and is accordingly disposed of. The judgment confirming the sale and ordering deed to the purchaser does not appear to have been acted on. Let it now be reversed in the appeal of Duff’s Heirs v. Combs. Let the appeal of Combs be affirmed. On a return of the ca.se S. S. Combs will be substituted to the rights and place of those creditors whose claims he paid off when he settled the purohase^money bonds. The circuit court should appoint a guardian ad litem to look after the interest of the infants.