
    Kinsinger. v. Cummins et al.
    (Decided November 20, 1931.)
    
      
      Mr. Kimball Scott and Messrs. Andrews, Andrews <& Rogers, for plaintiff in error.
    
      Mr. H. R. Reigart and Mr. W. G. Shepherd, for defendants in error.
   Ross, P. J.

This cause comes into this court on error from the court of common pleas of Butler county, wherein judgment was rendered in favor of plaintiffs, Edgar L. Cummins and others, saving and excepting Estella C. Cummins, who it is agreed has no interest in the matters in controversy.

The suit was brought by the children of James C. Cummins, claiming right to possession of, and legal title to, certain real estate described in the petition, unlawfully possessed and occupied by Samuel S. Kin-singer; a second cause of action being based upon a claim for the rents and profits accruing out of said premises so unlawfully retained.

The answer was a general denial. The case was tried to the court without a jury.

From the record it appears that James Cummins died testate February 19, 1904, leaving, among other heirs, a grandson, James C. Cummins, the father of these plaintiffs who by virtue of the terms of the will were the owners in fee of the premises described in the petition.

On August 14, 1905, suit was brought by a minor to contest the will of James Cummins. The plaintiffs, then living, were not made parties to this suit, nor even served with summons, nor was any guardian ad litem appointed for them. This litigation resulted in a judgment entered November 16, 1906, setting aside the will. On October 30, 1907, James C. Cummins, in order to remedy this oversight, brought suit with George M. Cummins, another grandson of the testator, against their children, including the then living plaintiffs in this case, who were duly served with summons, stating in the petition that it was brought to quiet title to the premises now involved in the present litigation. The petition recites that the children were not before the court in the proceedings to contest the will, and that they may claim some interest in the premises by reason thereof. A copy of the will of the testator was attached to the petition. The petition also alleged: “These plaintiffs do not admit that the defendants have any present interest in these lands whatsoever, but that the said minors were not before the court in any way in case 22279, but were omitted, and two of them have been born since said suit above mentioned had been commenced and as they might have a seeming title or cloud on the title this action is brought against them to remove any cloud or seeming title which they may have.”

A guardian ad litem was duly appointed and filed answers for the minors.

The judgment was entered February 24, 1908, quieting the title to the premises.

The case was sought to be reopened in favor of a certain George M. Cummins, on August 8, 1916, who filed a supplemental petition for that purpose. His request was refused by the court of common pleas, and, on appeal, the Court of Appeals also refused to open the case; a decree to that effect being entered in the Court of Appeals November 18, 1917.

The legal death of James C. Cummins, father of the plaintiffs in the instant case, was established in a proceeding brought in 1930 in the probate court of Butler county.

On February 2, 1914, James C. Cummins and his wife, Estella C. Cummins, conveyed the premises in dispute to Samuel S. Kinsinger, defendant in the court below and plaintiff in error in this court. The record fails to show any proceedings in error from any of the several judgments mentioned, except, of course, that in the instant case.

The present suit was brought by the children of James C. Cummins to quiet title to the premises against the decree obtained by James C. Cummins and George M. Cummins, quieting title against such children.

The question presented is: Are the plaintiffs as devisees under the will of the testator, their great grandfather, still entitled to take and hold the legal title and have possession of the premises in dispute under the provisions of the will?

The answer to this question is dependent upon the effect to be given the judgment in the suit to .contest the will and the subsequent suit brought by the father of plaintiffs to quiet his title against them.

As to the will contest, it is manifest that this proceeding could in no way bar them, and that as to them the will was still effective to pass title in the premises to them. Were this not conclusive, based upon law too well settled to now be questioned, it might be a matter for consideration as to just how far these plaintiffs were prejudiced by being omitted from the will contest as parties defendant, in view of the fact that, by the verdict of the jury, the will itself was vitiated, and ceased to be an effective instrument for the passage of title to the premises involved, except as to these necessary parties. That as to them it should still remain a valid will is an anomaly, a result which would have been completely obviated by simply making them parties with the proper appointment and defense, if any, of their guardian ad litem.

While such a consideration cannot be controlling in determining the rights of these plaintiffs, it is pertinent to the claim that they have been grossly wronged, and have been entirely deprived of all substantial justice by the proceeding to quiet.title brought against them.

In this subsequent proceeding, they were duly served with summons, a guardian ad litem was appointed for the minors, who filed an answer for them, and he, although the presumption seems rather violent, must be presumed to have protected their interests. In any event, no proceedings in error were filed to this decree, or an appeal taken, and the decree now stands unimpaired and of full force and effect. Unless, then, such decree was wholly void, it cannot and should not be collaterally attacked in the present action. The court had jurisdiction of the persons. Did it have jurisdiction of the subject-matter of the action? The fact that the court in the action to quiet title reached a completely erroneous conclusion has no bearing upon the question.

It is contended that this action to quiet title was in effect a suit to contest the will. While the decree in this proceeding may have produced the same result as setting aside the will, as to these plaintiffs the fact remains that the pleadings show clearly, and justify but the one conclusion, that it was an action in equity to quiet title, and it was not therefore necessary, as is urged, that it be tried to a jury as is required in will contest cases under the statute laws of this state. As to this phase of the question, the court did have jurisdiction of the subject-matter of the action. W. C. McBride, Inc., v. Murphy, 111 Ohio St., 443, 145 N. E., 855.

The present suit is simply an action to quiet title against a former decree of the same court in an action to quiet title.

It is our conclusion that the court had jurisdiction of both persons and subject-matter, as it has in the present litigation; that, while its decree was erroneous and subject to direct attack, it cannot now be collaterally attacked in this proceeding; and that the judgment of the court of common pleas in the instant case was erroneous. There being no dispute as to the facts, the judgment of the court of common pleas of Butler county will be reversed, and judgment will be entered here for the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Hamilton and Cushing, JJ., concur.  