Wandling v. Kennedy

4 Ky. Op. 305, 1870 Ky. LEXIS 342

• Court: Court of Appeals of Kentucky
• Decided: October 21, 1870
• Status: Published

Opinion

Opinion of the Court by

Judge Lindsay:

Under the provisions of sub-division 8, section 579, Givil Code, an infant defendant has the same right before as after attaining his majority to prosecute an action to vacate or modify any erroneous judgment that may have been rendered against him. Newland v. Gentry, 18 B. Monroe, 670. It appears from the record of the suit of Moorman and others v. Kentucky and others, that the guardian ad litem was appointed for the infant defendant James Kennedy on the 23d of April, 1860, the same day upon which the warning order was taken out against him. S'eetion 56 Civil Code provides that a guardian ad litem can not be appointed until after service of summons, either actual or constructive. It further appears that no suitable person was appointed by the court to take care of the interest of said inf ant,, either before or at the time the house and lot in Owensboro was adjudged to be sold.

These errors were, in our opinion, sufficient to authorize the court to vacate the judgment in said action, in so far as it affected the interests of said infant, and as the purchase money due him under the sale has not been paid; but still retains a lien upon the house and lot, the defendants Wandling are in no wise injured, by its vacation. Their title, obtained from the Moormans and Johnson, all that they have paid for remains undisturbed, and this judgment of course releases them from the payment of any amount to Kennedy.

Judgment affirmed.