201 Ky. 839 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
The appellee and plaintiff below, E. O. Campbell Coal Company, is a foreign corporation organized under the laws of the state of Georgia. It filed this equity action in the Bell circuit court against appellants and'against the appellee, Liberty Coal and Coke Company (hereinafter referred to as Coke Company), whereby it sought the recovery of a judgment against appellants for $72,490.00, and the enforcement of a mortgage lien against some real property situated in Bell county to secure $6,070.00 of the amount sued for. It alleged in the petition that the Coke Company held some kind of lien or claim against the mortgaged property and asked that it be required to answer and set up its claim, which it did and made it a cross-petition against plaintiff and its other co-defendants and against Arcadia Coal Company and H. E. Shorter, and prayed a personal judgment against them for its debt and asserted a superior lienagainst the property mortgaged to plaintiff to secure it. Summons issued on the cross-petition for the cross-defendants therein against whom personal judgment was sought, but it does not appear that the process was ever served on any of those against whom it was issued, nor did they in any manner enter their appearance to the cross-petition. The original defendants, T. C. Hughes, Leah E. Hughes, Antonio Coal Company and Kentucky Collieries Corporation, filed what they styled an “answer in the nature of a special demurrer to the petition,” which they stated was Cupón the ground that the plaintiff has not legal capacity to sue herein,” and in it they alleged that plaintiff was a foreign corporation, and, in substance, that in transacting the matters upon which it sued it was engaged in doing business' in Kentucky, and that it had never complied with the provisions of section 571 of our statutes requiring corporations (except foreign insurance companies) “carrying on any business in this state,” to file in the
It is first insisted that the personal judgment in favor of the Coke Company is erroneous because the cross-defendants, against whom it was rendered, were not properly served with process, as seems to be required by section 692 of the Civil Code, as a condition precedent to entitle the cross-petitioner to it. That it is necessary for a cross-defendant to be served with process, or enter his appearance to the pleading filed against him before a personal judgment against him may be rendered, is undoubtedly the correct practice, but the trouble with appellants’ contention is that no personal judgment was rendered in favor of the Coke Company against either of them. The only personal judgment in favor of that company was against the Arcadia Coal Company and H. R. Shorter, neither of whom is an appellant here, and appellants have no right to complain of an erroneous judgment against others than themselves. We, therefore, find no cause to disturb the judgment in favor of the Coke Company in the particulars complained of, or for any other reason.
It is earnestly insisted, however, that the judgment for $6,070.00, in favor of the plaintiffs against the appealing defendant, should be reversed because of the error of the court in sustaining the. demurrer filed to the writing
It will, therefore, be seen that about one-third of the judgment appealed from was due upon notes executed by defendants to plaintiff and which were to be paid in Atlanta, Georgia. In other words, the contract represented by the notes was to be performed in another state, and there is no allegation that they were either executed or delivered in this state, and they'therefore possess none of the qualities of a domestic transaction. Citizens Trust and Guaranty Co. v. Hays, 167 Ky. 560. Moreover, it does not appear that they were executed in satisfaction of any domestic transaction, and for aught that appears the consideration for them may have arisen out of a wholly foreign transaction; which if true, the mere taking of them in settlement of such a transaction would not constitute “doing business” in this state within the contemplation of the section of the statutes relied on, even though they were executed and made payable in this state. Ichen
The other item of $4,000.00 was based, as we have said, upon a written contract dated at Indianapolis, Indiana, which itself raises a presumption that it was to be performed at that place, or at the place of the obligee’s residence. 13 Corpus Juris, 666-7. And if the contract is in the nature of a promise to pay (such as a note), the presumption is that the place of payment, in the absence of a designated one, is at the place of its date. 8 Corpus Juris 557. But, however that may be, the written obligation for a violation of which the $4,000.00 was sought to be recovered was, as we have seen, in settlement of a claim arising out of an agreement on the part of defendants, as alleged in the petition, to ship three hundred cars of coal to the Citizens’ Gras Company at Indianapolis, Indiana, being a part of a purchase of four hundred cars made by plaintiff of defendants; and the requirements of the statute do not apply to interstate transactions. Commonwealth v. Eclipse Hay Process Co., 31 Ky. L. R. 824; Bondurant v. Dahnke-Walker Milling Co., 175 Ky. 774; Same v. Same, 185 Ky. 386; E. C. Artman Lumber Co. v. Bogard, 191 Ky. 392; Louisville Trust Co. v. Bayer Steam Soot Blower Co., 166 Ky. 744; Fletcher Cyclopedia Corporations, vol. 9, section 5921, and 14a Corpus Juris, 1283-1290, both inclusive. But, it is insisted that the purchase by plaintiff of the four hundred cars of coal, three hundred of which were to be shipped to Indianapolis, was not an interstate transaction, since the contract for the coal provided that plaintiff was to take it f. o. b. cars. The place where the cars were to be accepted under those terms is not stated, but if we shotild assume that it was at defendant’s mine, which is in Kentucky, then the facts do not prevent the transaction from being one in interstate commerce.
In this case it was not only the intention of plaintiff to ship the coal (notwithstanding it was purchased f. o. b. cars) to Indianapolis, Indiana, and the remaining one hundred cars to its place of business in Georgia, but as to the three hundred cars defendants expressly agreed to so ship them. It was, therefore, clearly an interstate transaction.
It is, however, again insisted that the taking of the mortgage by plaintiff to secure its indebtedness on the real property located in Bell county was “doing business” in the state and brought that transaction within the inhibition's of the statute, but that contention was expressly decided by this court against plaintiffs in the
Lastly, it is insisted that plaintiff by not responding to and thereby confessing the special plea, which defendants styled as “being in the nature of a demurrer,” its allegations should have been treated as admitted and the court erred in not dismissing the petition. The facts relieving the transactions sued on from the operation of section 571, and which we have hereinbefore discussed, appeared from the allegations of the petition, and they were not denied in the special plea. When the cause was submitted they stood in the record as confessed, and it is our conclusion that the court had the right to take them into consideration in determining whether that plea should or not prevail. If the recited avoiding facts had not expressly appeared in the record, or if they had not been confessed because of a failure to controvert them, a different question would be presented. As it appeared from the entire record, when the cause was submitted to the court, defendants ought not to be allowed to rely upon a non-compliance with the provisions of the section of the statute because of the avoiding facts elsewhere appearing. It would be a highly penal administration of the statute to say that under such circumstances it was the duty of the court to dismiss the petition, notwithstanding it appeared from the record that its requirements were not applicable to the confessed case. As hereinbefore stated, we are not disposed to extend the disabling effect of the statute and farther than has already been done, and where it appears in the record without contradiction that the statute is not applicable to the transaction involved, the suit will not be dismissed, although the avoiding facts are not presented strictly according to the technical rules of practice.
It, therefore, follows that appellants have shown no grounds for disturbing either judgment and they are each accordingly affirmed.