112 Ky. 91 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
The Lexington & Carter County Mining Company is a corporation organized under the statutes of this State, with its chief office at Lexihgton, and its business was conducted in Carter county, where it owns some 10,000 acres of mining land; and other property. Tn 1890, one Gilderoy, who had rendered services for the company, and to whom $240 was due, brought his action in Jefférson circuit court, alleging that the corporation was insolvent, and asked that a receiver be appointed to. take charge of the property, and for a general settlement of the corporate business. Gilderoy also asserted a lien on the real estate and property of the company to himself and all other laborers to whom the company might be indebted. The president of the corporation was served with process in Jefferson county, and after notice and hearing on the petition and motion a receiver was appointed to take' charge •of the property. Afterwards, these appellants came into court, and filed answer, pleading that the Jefferson circuit court had no jurisdiction of the action. This plea discloses that appellants are creditors of the corporation,
Section 72, Civ. Code, provides: “Excepting the actions mentioned in sections 82 to 66, both inclusive, and in sections 68, 70, 71, 73, 75 and 77, an action against a corporation which has an office or place of business in this State, or a chief officer or agent residing in this State, must be brought in the county in which such office or place of business is situated, or in which such officer or agent resides; or if it be upon a contract, in the above-named county, or in the county in which the contract is made or to be performed, or, if it be for a tort, in the first named county, or the county in which the tort is committed.” Section 62, Giv. Code, provides: “Actions must be brought in the county in which the subject of the action, or some part thereof,.is situated — (3) For the sale of real property under title ten, chapter fourteen, or under a mortgage, lien or other encumbrance or charge, except for the debts of a decedent.” It is perfectly clear that neither sections 163,
It is insisted that the appellants have waived any right they had .to question the court’s jurisdiction by pleading to the merits after their plea to the jurisdiction was adjudged .to be insufficient. These several pleadings all contain the words, “not waiving their plea to the jurisdiction
For the error in sustaining the demurrer to the plea to the jurisdiction the judgment is reversed, and cause, remanded, with directions to overrule the demurrer, and for proceedings consistent herewith.