James v. Cox

10 S.W. 814, 88 Ky. 270, 1889 Ky. LEXIS 27

• Court: Court of Appeals of Kentucky
• Decided: February 21, 1889
• Status: Published

Opinion

JUDGE PRYOR

delivered tiik opinion of the court.

There is no appeal from the judgment rendered in this case, but the appeal is prosecuted from the order confirming the report of sale made by the commissioner. Section 88 of the Civil Code provides, where the defendant is an infant, that no appointment of a guardian ad litem shall be made until an affidavit of the plaintiff' is filed, or of his attorney, showing that the infant has no guardian, curator, etc., residing in the State known to the affiant. The affidavit may be filed in court or with the clerk. In this case the affidavit was made by the' attorney, but in it he failed to state that the plaintiff (his client) was absent from the county, and, therefore, it is claimed the proceeding against the infant is void. Section 550 of the Code provides that where the Code requires or authorizes a party to make an affidavit, it may be made by his agent or attorney, if the party is absent from the county, unless otherwise expressed, etc. It will be observed that section 38 authorizes either the party or his attorney to make the affidavit, and, therefore, this case is not embraced by the provisions of section 550. If the party had been authorized to make the affidavit provided for in section 38, then the attorney, by reason of section 550, could have made the affidavit if the plaintiff was absent from the county. In a case like this either the plaintiff or his attorney can make the oath, whether the plaintiff is in the county or out of it, as this is the express provision of the Code. Nor are we disposed to adjudge that the judgment would be void if section 550 applied to this case. We perceive no error in the record, either as to the service or manner of service, on the infants, that would render the sale void, and as the appeal is from the order of confirmation alone, the judgment below is affirmed.