Buchanan v. Boyd's Exor ( 1909 )

Opinion op the Court by

Judge Hobson

Overruling motion to dismiss.

R, Boyd recovered a judgment against Nathan Buchanan, etc., for a tract of land. After the recovery of the judgment, Boyd died, and after his death, and within two years from the entry of the judgment, Buchanan, etc., sued out an appeal from it in this court, making R. Boyd and R. Boyd, Jr., as his executor, parties appellee. The executor has entered-a motion to dismiss the appeal. In response to this •motion appellant relies on Hopkins v. Hopkins, 91 Ky. 310, 15 S. W. 854, 12 Ky. Law Rep. 945; Magee v. Frazier, 51 S. W. 174, 21 Ky. Law Rep. 254. He also insists that R. Boyd, Jr., is one of the real representatives of R. Boyd, and that as to him at least the motion should be overruled. In the cases cited there was an appeal from a personal judgment. The executor was the 'only necessary party appellee. Here we have a real action, and the real representatives of the deceased are necessary parties to the appeal.. "We can not know from the record what are the provisions of R. Boyd’s will, and in whom it vests his title to the land in contest. It may he devised to the executor or to strangers to his blood. There is nothing to show that R. Boyd, Jr., is one of his devisees or heirs at law. If the facts are not shown by the record, the grounds of a motion to dismiss must be pleaded. Civil Code of Practice, sections 757, 758. When Robert Boyd, Sr. died, his title to the land descended to his heirs at law, or to his devisees as the case may be, and their rights will not be affected by the judgment rendered on the appeal unless they are parties to it. The necessary facts for the determination of the pending motion not being shown by the record must, to be available, be pleaded. The necessary parties, if there are others, must be brought before the court, if they are to be affected by the appeal. The court will not now pass on any of the questions raised finally; for it is not proper'to adjudge the matters before the necessary parties are before the court, or the facts necessary to determine the case are shown.

The motion to dismiss the appeal is on present showing overruled