Haley v. Chambers

7 Ky. Op. 573, 1874 Ky. LEXIS 220

• Court: Court of Appeals of Kentucky
• Decided: March 11, 1874
• Status: Published

Opinion

Opinion by

Judge Peters:

This suit is brought by appellants, to vacate a judgment rendered against them in the suit of A. Waltrope against them in September, 1857, for a sale of the land described in the petition, on the following, among other grounds, that appellants, Sophia, Sophrona, Mary C., Mildred, Jane, John and Robert Haley were, at the time of the institution of the suit of Waltrope against them, as aforesaid, infants under 14 years of age; that there was no service of process on them in said case; that they were not before the court when the judgment was rendered; and that it is therefore void.

•It appears in the record from the sheriff’s return that he executed the summons on Nancy Haley, the widow of M. C. Haley, and Sophia M., Sophrona A., Mary C., Martha, John, Mildred, Jane, Susan, Alice, and Robert C. Haley, on the 9th day of July, 1857, by delivering to each of them a copy of said summons.

The petition is against Nancy Haley, the widow, and Sophia M., Sophrona A., Mary C., John, and two unnamed children, infant heirs of M. C. Haley, deceased. So that the summons was executed on eight persons, as the children of M. C. Haley, deceased, when according to the petition only four were sued as his children and heirs; two were sued as unnamed persons; but how process can issue and be served on persons unnamed is not explained, and we are not enlightened on that subject.

But according to the evidence, Sophia, the oldest of the children, was born on the 4th of December, 1843, and was not 14 years old till the 4th of December, 1857, and Robert, the youngest, was born January 5, 1856, and on the 9th of July, 1857, when the sheriff delivered to him a copy of the summons, he was one year, six months and three days old. The other children to whom copies of the summons were delivered, were all younger than Sophia; and notwithstanding they were of these tender years, there was no service on their mother, nor any guardian nor white person having the care or control of them, or with whom they lived. It is, therefore, conclusively shown that the provisions of Sec. 81, Civil Code, were totally disregarded, and that there was no service of process on the infants, and that the judgment rendered in the case of Waltrope against Sophia Haley and other infant children of M. C. Haley on the 22d of September, 1857, was void as to them.

Ray & Walker, L. P. Little, for appellant. ■ Eaves, for appellee.

Wherefore the judgment dismissing appellants’ petition is reversed, and the cause is remanded with directions to vacate and set aside said judgment of A. Waltrope against Sophia Haley and others, rendered the 22d day of September, 1857, and for subsequent proceedings consistent herewith.

Appellees will be substituted to the lien of A. Waltrope and the land for any purchase monqy they may have paid him.