Bamberger v. Green

142 S.W. 384, 146 Ky. 258, 1912 Ky. LEXIS 45

• Court: Court of Appeals of Kentucky
• Decided: January 16, 1912
• Status: Published

Opinion

Opinion of the Court by

William Rogers Clay,

Commissioner

Reversing.

In the year 1880, R. M. Green was indebted to Kahn, Wolf & Sons, Bamberger, Bloom & Co., and other merchants. For the purpose of securing the indebtedness, he and his wife, Julia C. Green, .executed, acknowledged and delivered to them a mortgage on four tracts of land situated in Jackson County. Three of these tracts belonged to R. M. Green, while the fourth had been patented to R. M. Green in the name of his wife, Julia, and belonged to her. The indebtedness not being paid, the mortgagees instituted proceedings in the Jackson Circuit Court during the year 1881, to enforce their lien and subject the mortgaged property to the payment of their respective claims. The endorsement of the clerk on the petition, though somewhat blurred and illegible, shows that summons was issued. There were several continuances of the case. Later on there was a judgment of sale. The property was sold, and appellant, Julius Bamberger, as trustee for the creditors, became the purchaser, and a deed approved by the court was executed to Mm by tbe commissioner. Tbe case was then filed away.

In 1910, Julia C. Green, alleging that sbe bad tbe legal title to and was in possession thereof, brought this action to quiet her title to tbe tract of land patented to her and embraced in tbe mortgage. Appellant answered and pleaded tbe judgment and other steps in tbe foreclosure proceedings, and bis title thereunder, in bar of a recovery. Appellee replied that the judgment and all other proceedings were void because she was not served with summons and did not enter her appearance to tbe action by answer or otherwise. Sbe also charged other irregularities in tbe proceedings, which it will not be necessary to set out at length. Upon submission of tbe case, appellee’s title was quieted, and from that judgment so entered this appeal is prosecuted.

We deem it unnecessary to discuss tbe evidence bearing upon the questions of fact. Tbe attack made by ap-pellee upon tbe judgment in question is not direct but collateral. It is a well settled rule that domestic judgments rendered in a court of general jurisdiction can not be collaterally attacked unless tbe want of jurisdiction appears upon tbe record. Therefore, no evidence is admissible except thát which is furnished by tbe record -of tbe action wherein tbe judgment was rendered. Tbe record in question does not show that appellee was not summoned or was not properly before tbe court. Therefore, it will be conclusively presumed that sbe was properly before tbe court, and this presumption can not be overcome by appellee’s evidence to tbe effect that sbe was not served with process and did not enter her appearance by answer or otherwise. (Dennis v. Alves, 132 Ky., 345; Segal v. Reisert, 107 S. W., 747, 32 Ky. Law Rep., 901; Maysville & Big Sandy R. R. Co. v. Ball, et al., 108 Ky., 241; Jones v. Edwards, &c., 78 Ky., 6; Newcomb’s Executors v. Newcomb, 13 Bush, 533; Berry v. Foster, 22 Ky. Law Rep., 745; Wilson v. Teague, 95 Ky., 47; Sears v. Sears, 95 Ky., 173.) As the judgment and proceedings thereunder must be held to be valid so far as this action is concerned, it follows that they constitute a bar to a recovery by appellee. Her only remedy is by an action directly attacking tbe judgment.

' Judgment reversed and cause remanded, with direction to dismiss tbe petition.