James v. Cox
Court of Appeals of Kentucky
Cash 43 — PETITION EQUITY — APPEAL from henry circuit court. The clerk has no authority to appoint a guardian because the affidavit made by the attorney fails to state that the plaintiff was absent from the county. The infants were, therefore, not before the court, and the judgment as to them is void. (Civil Code, section 550.) The affidavit required by' section 38 of Code may be made by the party or his attorney, whether the party is in or out of the county.
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Cash 43 — PETITION EQUITY — APPEAL from henry circuit court. The clerk has no authority to appoint a guardian because the affidavit made by the attorney fails to state that the plaintiff was absent from the county. The infants were, therefore, not before the court, and the judgment as to them is void. (Civil Code, section 550.) The affidavit required by' section 38 of Code may be made by the party or his attorney, whether the party is in or out of the county. Section 550 does not apply to such affidavits.
1Opinion of the Court
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 *271with the clerk. In this case the affidavit was made by…
2Cited by1 opinion
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