Opinion
Decided January 28, 1927.
Appeal from Pike Circuit Court.
J.C. CANTRELL for appellant.
J.J. MOORE for appellee.
J.P. CUSICK, warning order attorney.
Striking the transcript from the docket.
On November 23, 1923, R.T. Gentry attempted to convey to his wife, the appellee and plaintiff below, Florence Gentry, a dwelling house and lot in Pikeville, Kentucky, in which he and his family, consisting of himself, plaintiff and an infant daughter, the appellant and defendant below, Virginia Gentry, resided. He afterwards died intestate, and subsequent thereto plaintiff and defendant moved to the state of Indiana, where they resided at the time this equity action was filed by plaintiff against defendant in the Pike circuit court. The petition alleged that it was claimed by defendant, who was the lineal heir of her deceased father, that the deed by the latter to plaintiff, because of its defective execution (as pointed out in the petition, but which it is unnecessary to state here) was wholly invalid and did not operate to divest the vendor of title, and that he died the owner of the house and lot which defendant inherited, subject to the rights of plaintiff as widow, and because thereof a cloud was cast upon plaintiff's title, which she sought to remove. The petition was not verified either by plaintiff or her attorney, and there was no separate affidavit to obtain a warning order for defendant. Notwithstanding those defects the clerk made a warning order for her and appointed a member of the local bar as corresponding or warning order attorney.
The petition was filed on October 29, 1925, and on November 23 thereafter plaintiff's attorney filed his affidavit for the appointment of a guardian ad litem for defendant, but it did not conform to subsection 2 of section 52 of the Civil Code of Practice, in that it was not made by plaintiff and no facts are stated therein authorizing the attorney to make it, and which was held to be fatally defective in the recent case of Kitchens v. Edwards, 207 Ky. 664. Notwithstanding such failure the court appointed a guardian ad litem for the infant defendant, and he filed answer and counterclaim for her in which he denied plaintiff's alleged grounds for relief and attacked the validity of the deed on the ground that her father at the time he executed it was so intoxicated that he was bereft of reason and did not know what he was doing and that plaintiff took advantage of his condition and unlawfully influenced him to do so. That paragraph of the answer was denied and the cause was submitted on the pleadings, followed by a judgment declaring the deed valid and quieting plaintiff's title and also dismissing the counterclaim presented by the guardian ad litem. The latter objected to the judgment, but he did not pray an appeal to this court. However, plaintiff's attorney procured a transcript of the record and filed it in this court pursuant, as he claims, to the provisions of section 741 of the Civil Code of Practice, and asks this court to affirm the judgment on its merits. At the time of filing the transcript in this court the attorney for plaintiff made affidavits for the appointment of a warning order attorney and a guardian ad litem for appellant in this court, but it possessed the same defects as did his affidavit in the trial court. From what has been said it is manifest that if we had jurisdiction of the infant appellant and defendant we would be compelled to reverse the judgment because of the defective practice pointed out, regardless of the merits of the case; but for reasons hereinafter stated we have no jurisdiction of the appellant on the appeal.
It is well settled that the successful litigant can not appeal from a judgment giving him all the relief he asks. A late domestic case so holding is that of Light v. Miller, 187 Ky. 57. Unless, therefore, plaintiff had the right to file the record in this court pursuant to the provisions of section 741 supra, of the Civil Code of Practice, there is no appeal here for our consideration. The precise point presented in this case (with the single exception to be hereafter considered) was presented in the case of Ruddle v. Summers, 22 K. L. R. 488. In that case the plaintiff proceeded against defendants as nonresidents for the purpose of having her title quieted. She obtained judgment and afterwards filed a transcript in this court under the claimed right conferred by section 741 supra. But it was stricken from the docket for the reason, as stated in the opinion, that: "We think such a practice is not authorized by the Code. The section relied on presupposes an appeal, and this can only be prayed or taken by an appellant. One can not take an appeal from his adversary. This affirmative relief which a party who has been defeated in the court below may or may not desire; and he must be permitted to decide for himself whether he will seek redress for any supposed wrong." However, in the opinion it was also said, that: "When, however, an appeal has been prayed or taken the adversary of the appellant may, to hasten the trial of the appeal, file a copy of the record with the same effect as if filed by the appellant."
We repeat that we can discover no difference, in principle, between that case and this one, except the non-resident defendants therein were not represented by supposed guardian ad litem or otherwise. That fact, however, can make no difference, since the opinion was not bottomed upon that fact but upon the one that the losing litigant in the trial court had neither prayed nor attempted to take an appeal from the judgment against him, and that section 741 did not confer upon the winning litigant in that court the right to determine whether or not his adversary should appeal from the judgment.
The single difference between that case and this one is, that the appointed guardian ad litem has filed brief in this court on behalf of appellant, and it might be insisted that by doing so he concurred in the appeal and, to the extent of his power, entered her appearance and thereby placed it in the same category as one directly prosecuted by him for her. Conceding, for the purposes of the argument, that he if properly appointed might have prayed and prosecuted an appeal from the judgment so as to give this court jurisdiction of it, then the fact remains that the court below did not have jurisdiction to appoint a guardian ad litem, even if the proper affidavit had been made. In the case of Massingale v. Parker, 191 Ky. 515, we held that the authority of the court to appoint a guardian ad litem for an infant defendant was restricted to infants who had been summoned in this state and did not apply to nonresident infants who were proceeded against by warning order. The prior case of Powell v. Baer, 143 Ky. 282, and the subsequent one of Bethel College v. Gladdish, 204 Ky. 10, are to the same effect. That being true, the alleged guardian ad litem was without authority to officiate as such, and the rights of the infant nonresident are in no wise affected by anything that he did or omitted to do, since his appointment by the court was without authority and conferred upon him no powers as a guardian ad litem.
We have not overlooked the fact that there appears in the record a demurrer filed to the petition, which is subscribed by a member of the Pikeville bar as attorney for defendant, but that fact, even if we should concede that such attorney was duly employed and that the infant could so employ him, does not alter the status of this appeal, since neither that attorney nor the infant defendant, asked for or procured the appeal.
For the reasons stated the transcript is stricken from the record of the court.