87 Ky. 651 | Ky. Ct. App. | 1888
delivered the opinion op the court.
If the preliminary motion made by the appellant in the court below affecting the question as to the summons on the alleged agent should have been sustained, it dispenses with the necessity of investigating the merits of the controversy.
This is an action by the personal representative of A. J. Heath to recover damages for the death of his intestate, caused, as is alleged, by the willful negligence of the defendant, the Chesapeake, Ohio and Southwestern Railroad Company. The petition was filed in the circuit or common pleas court of Mc-Cracken county, where the injury occurred, causing, as is maintained, the death of Heath, and a summons as in ordinary actions duly issued, directed to the sheriff of that county, who returned it executed on A. Kirkland, the agent of the company. The company
‘ ‘ The defendant, Chesapeake, Ohio and Southwestern Railroad Company, states that it had no officer, agent or servant in this county at the time of the' service of process herein on A. Kirkland, and that said Kirkland, at the time process herein was served on him, to wit: February 15, 1886, was not the agent, servant or officer, or in the employ of defendant. That defendant’s principal office and place of business at that time, and during the month of February, 1886, and now, is in the city of Louisville, Jefferson county, Kentucky. That defendant, at the time process herein was served as aforesaid on A. Kirkland, had no officer, agent or servant in the State of Kentucky, except in Louisville, Jefferson county, Kentucky, and its chief officer, agent and servant, John Echols, vice-president of defendant company, now resides in Louisville, Jefferson county, Kentucky, and resided there at the time of service of process herein on A. Kirkland. That this court has no jurisdiction of defendant. And defendant pleads and relies on the facts stated herein in abatement of this action, and asks that the process herein be quashed and this action be abated.”
The plaintiff demurred to the answer and the demurrer was sustained, to which the defendant excepted.
The defendant (appellant) then moved to quash the return on the summons, and in support of the motion filed the affidavit of Kirkland to the effect that he was not the agent, officer or employe of the company at the time the summons was served upon him, and this motion was sustained.
Section 73, Carroll’s Code of Practice, provides: “Excepting the actions mentioned in section 75, an action against a common carrier, whether a corporation or not, upon a contract to carry property, must be brought in the county in which the defendant, or either of several defendants, resides, or in which the contract is made, or in which the carrier agrees to deliver the property. An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides, or in which the plaintiff or his property is injured, or in which he resides, if he reside in a county into which the carrier passes.”
Section 74 provides: “Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done.”
By section 51 of the Code, the summons in a case
In this case it is conceded, and the ,court below has so adjudged, that the summons was never served on any agent of the company, and the fact plainly appears that the defendant never pleaded to the merits of the action until he had previously filed the answer setting forth the fact that no service had been had, and, therefore, the court had no jurisdiction of the defendant. The action was in one sense made local at the' option of the plaintiff or the party injured; that is, he might file his action in the county where the injury occurred if he saw proper, and a service of process might have been had on the chief officer in any county in the State, or on the agent residing in the county, or if a railroad, on the passenger or freight agent stationed nearest to-the county seat of the county in which the action is brought; but in this instance ho effort was made to show that process had been served on any person representing the company as agent, either in the county or out of it.
Where the action for the personal injury survives,, or where the personal representative may recover for the personal injury, or for the death of the intestate, he may sue in the same manner and in the same jurisdiction that the party injured could have sued if he had survived the injury.
The plea or answer of the corporation asserted that the McCracken Court of Common Pleas had no jurisdiction of the defendant, because no process had been served. No other question of jurisdiction was made; and whether the written statement by the defense is called an answer or plea is immaterial, for it was only an appearance for the purpose of insisting that the court had no jurisdiction over the person for the want of a proper service.
One of the grounds of a special demurrer under section 92 of the Code is, that the court has no jurisdiction of the defendant, or of the subject-matter of the action. A special demurrer could not have been filed in this case, because there was nothing on the face of the petition, or any part of the record, showing that there was a want of jurisdiction as to the defendant, but, on the contrary, the petition and the summons returned executed on the agent, showed the court had jurisdiction of the person, and having jurisdiction of the subject-matter, there was nothing to prevent a trial on its merits. The defendant not having been served with process, but knowing the return made by the sheriff, had to make that fact known in order to stay the proceedings until process was served. The usual mode of proceeding under the general practice of the courts in such cases is, to move to quash the return made by the sheriff; but the defendant in this case
The jurisdiction of the person can be acquired only by an actual service or by a voluntary appearance, and where jurisdiction is about to be exercised in a case where the service has been wrongfully made, it is not only the duty, but the .right, of -the deféndant to'appear and make the question of jurisdiction over him, by showing, if he- can, that no process' has been served, and, in such a case, it has never been held, where this was the only question raised, that it was an appearance to the whole action. Any other rule would enable a plaintiff, in either a local or transitory action, to acquire jurisdiction by a wrongful service, by claiming that the defendant, in making the question, had entered his appearance.
Counsel for the appellant are not insisting, as we understand them, that the common pleas court of Mc-Cracken has no jurisdiction over the subject-matter.
It is not a voluntary appearance by the defendant in making this objection, and when informed that the action is against him, and such a service made by the officer, instead of looking on and seeing a judgment rendered that he must necessarily assail as void, when attempted to be enforced, he should stay the proceed
The appellant in this case has taken every step to prevent a judgment upon it without service, and has made no plea to the jurisdiction of the court as to the subject-matter, or entered any appearance to the merits, by answer or otherwise, until compelled to do so by the trial court. When required to plead, the defense should have responded to the merits, and was not required to stand by its answer as to the jurisdiction over it by reason of the wrongful service, and thus risk the chances of the final decision upon the one question.
The judgment is, therefore, reversed, and remanded, with directions to award the appellant a new trial. As the appellant is in court by the appeal, no other service is required, this court having repeatedly held that an appeal from a void judgment for the want of process placed the appellant in court on the return of the case for all the purposes of a trial. (Grace v. Taylor, 1 Bibb, 430; Graves v. Hughes, 4 Bibb, 84; Bradford v. Gillaspie, 8 Dana, 68; Salter v. Dunn, &c., 1 Bush, 311; Wharton v. Clay, 4 Bibb, 167; Allen v. Brown, 4 Met., 343.)