Phillips v. Phillips

11 Ky. Op. 23, 2 Ky. L. Rptr. 217, 1881 Ky. LEXIS 112

• Court: Court of Appeals of Kentucky
• Decided: February 5, 1881
• Status: Published

Opinion

Opinion by

Judge Coeer :

Mrs. Phillips owned a life estate in the house and grounds embraced in the mortgage, and as she and her husband united in the mortgage the mortgagees acquired a lien on her interest. Her husband had no estate .in the land, and consequently his children inherited nothing from him. They have an interest contingent upon surviving their mother, but that interest was not affected by the mortgage and will not be affected by the judgment or sale. Consequently they were not necessary parties, and Mrs. Phillips being already before the court, the judgment rendered at the August term, 1877, was final, and the court had no power át the January term, 1878, to set it aside.

The order purporting to set it aside was therefore void, as also the • subsequent judgment to sell the property. This latter is the judgment appealed from, and being void, and no motion having been made in the court below to set it aside, no appeal lies. Buckner and Bullitt’s Civ. Code (1876) § 763, Bullitt v. Commonwealth, 14 Bush (Ky.) 74.

The court had jurisdiction, however, b> set aside the sale under the judgment of August, 1877, and nothing seems now to remain but to execute that judgment.

Wherefore the appeal is dismissed.