Affirming.
In 1882 N.B. Johnson died intestate, a resident of Madison county and the owner of a tract of land containing about thirty acres. He was survived by his widow and six children. In 1904 after the death of his widow and his son, J.B. Johnson, a suit was instituted in the Madison circuit court by some of his heirs against the others to sell the thirty-acre tract of land for partition.
A sale was ordered at which the appellee, Martha Hall, became the purchaser as $4,500.00. The land was appraised before the sale at $425.00. The sale was confirmed. She paid the purchase bond and pursuant to order a deed was executed to her by the master commissioner and approved by the court in February, 1907.
The appellants, who are the children and heirs of J.B. Johnson and their mother, Mollie Johnson, were made parties defendant to that action; and the deed executed by the commissioner to appellee, Martha Hall, purported to convey their one-sixth undivided interest in the land.
In 1924 they instituted this action against Mrs. Hall and her husband seeking a sale of the land for partition, alleging that Mrs. Hall was the owner of an undivided five-sixth interest therein by reason of her purchase at the judicial sale,supra, and that they were the owners of the remaining one-sixth interest, as heirs of their grandfather, N.B. Johnson.
For answer she denied that they owned any interest the land; pleaded her title to the whole of same under the above sale and deed and filed with her answer parts, but not all of the record in that case. Appellants' demurrer to this answer having been overruled they declined to plead further and their petition was dismissed. *Page 819
For reversal of that judgment they insist that the sale and deed to Mrs. Hall in the former action are void as to them, (1) because they were then infants under fourteen years of age and were not served with process as required by section 52 of the Code, and (2) because the appointment of the guardian ad litem, who was served and attempted to answer for them, was also void. The petition was verified by one of the plaintiffs and contained the averment that appellants were infants under fourteen years of age and had no guardian, curator or committee in this state. Thereupon the clerk appointed J.T. Jackson guardian ad litem for them and issued a summons and nine copies commanding the sheriff to summon each of the named defendants, including appellants. The sheriff's return on the summons shows that it was executed on August 12, 1904, by delivering a copy thereof to each of the adult defendants, including Mollie Johnson, the mother of appellants, and "also copies to J.T. Jackson, guardian ad litem for Joe Johnson, Carl Johnson, Bessie Johnson and Grace Johnson, infants under fourteen years of age. J.B. Johnson is dead." The last six named parties are the appellants and plaintiffs in this action. As they were then infants under fourteen years of age, their father was dead, they had no guardian and their mother was a defendant, the summons for them had to be served upon their mother and the prior appointment of a guardian ad litem for them was not authorized by either section 38 or 52 of the Code or at all. Hence neither the appointment of the guardian ad litem nor the service of summons upon him for the infants was in any sense a compliance with section 52; and neither the service upon him nor his answer for them brought them before the court. Allsmiller v. Freutchenicht, 86 Ky. 198, 5 S.W. 746; Roy v. Allen's Administrator, 118 S.W. 981.
But a copy of the summons which contained the name of each of appellants as defendants was served upon their mother and this, under numerous decisions of this court, was a substantial compliance with section 52 and sufficient to bring appellants before the court, although additional copies were not delivered to her for each of appellants. Cheatham v. Whitman, 86 Ky. 614,6 S.W. 595; Donaldson v. Stone, 11 R. 27; 11 S.W. 462; Rodgers v. Rodgers, 17 R. 358, 31 S.W. 139; Webb v. Webb,190 Ky. 574, 228 S.W. 13. It results, therefore, *Page 820 that appellants were before the court and the sale and conveyance of their undivided one-sixth interest in the land to Mrs. Hall was not void or even voidable for the first reason assigned.
Since the guardian ad litem for appellants was appointed before they were summoned and their mother was a defendant, the appointment was premature and at least voidable, if not absolutely void, as it was held to be under similar circumstances in Allsmiller v. Freutchenicht and Roy v. Allen's Administrator, supra.
But whether void or merely voidable is immaterial in this case since, although subsection 3 of section 36 of the Code provides that "no judgment shall be rendered against in infant . . . until the regular guardian or committee or guardianad litem of such defendant shall have made defense or have filed a report," we uniformly have held where the infant defendant was before the court the absence of such defense by either the statutory guardian or guardian ad litem only rendered the judgment erroneous and not void. Schuck v. Stall, 6 R. 364; Robinson v. Clark, 17 R. 1401, 34 S.W. 1083; Norfleet v. Logan, 21 R. 1200, 54 S.W. 713; Siler v. Archer's Guardian, 26 R. 557, 82 S.W. 256; Keller v. Wilson, 90 Ky. 350,14 S.W. 332; Berryhill v. Holland, 30 R. 831, 99 S.W. 902; Reynolds v. Steele, 170 Ky. 153, 185 S.W. 820; Crume, et al. v. Sherman,185 Ky. 376, 215 S.W. 196.
The rule is also thoroughly established in this jurisdiction that a judgment which is merely voidable and not void can not be attacked collaterally. Logsdon v. Logsdon, 204 Ky. 104,263 S.W. 728; Oliver v. Belcher, 205 Ky. 417, 265 S.W. 942; Haddix, et al. v. Walker, 205 Ky. 740, 266 S.W. 631; National Surety Company v. Taylor's Guardian, 200 Ky. 728,255 S.W. 542.
As this is clearly a collateral attack upon the judgment in which the land was sold and conveyed to Mrs. Hall (Taylor, et al. v. Asher, et al., 183 Ky. 563, 209 S.W. 533), and that judgment is not void but at the most voidable, it results that the chancellor did not err in overruling appellant's demurrer to the answer or in dismissing the petition.
Judgment affirmed. *Page 821