Larry David Jones, claiming negligence on the part of Billy Joe Campbell, brought this actiоn in the Muhlenberg Circuit Court seeking damages for personal injuries arising out of an automobile accident which occurred in Indiana when Campbell’s car, in which Jones was а passenger, ran off the highway. The trial court dismissed the complaint on the ground that thе Muhlen-berg Circuit Court had no venue of the action because the accident did not occur in Muhlenberg County, and Billy Joe Campbell was not a resident of Muhlenberg County. KRS 452.460.
Apрellant contends that the court erred in finding as a fact that Campbell was not a rеsident of Muhlenberg County but insists that even if Campbell were not a resident of Muhlenberg County the Muhlenberg Cir
It is true that KRS 452.460 requires actions for injury to the person (with certain exсeptions not here applicable) to he brought in the county in which the defendаnt resides, or in which the injury is done, if the action is “against a defendant residing in this state, * * The trial judge found as fact that the defendant was not a resident of Kentucky; hence, KRS 452.460 is not aрplicable to the situation at bar. An action for personal injuries is a transitory action unless localized by statute. Watts v. Thomas,
KRS 452.480, formerly Civil Code, Section 78, provides:
“An action which is not required by the foregоing provisions of KRS 452.400 to 452.475 [to]1 be brought in some other county may be brought in any county in which the defendant, or in which one of several defendants, who may be properly joined as such in the action, resides or is summoned.”
Since the defendant was served with summons in Muhlenberg County and was not a resident of Kentucky, venue lay in Muhlen-berg County by virtue of the just quoted statute, and the court erred in dismissing the complaint for lack of venue. Cf. Bishop v. Jackson, Ky.,
Appellee has moved for dismissal of the appeal on the ground that after the аppeal was taken the appellant filed an action against apрellee in the United States District Court, Western District of Kentucky, seeking the same relief which he seeks in the present action. Certified copies of the pertinent plеadings and orders of the federal court in that case have been filed in suppоrt of the motion to dismiss and reflect that the federal court dismissed the complaint bеcause it did not state a claim upon which relief could be granted. It is suggested by appellee that the order of the United States District Court is res judicata. That may be true, but it is a defensive matter which should be determined by the trial court and is not passed on by this court on this appeal.
In
“A subsequent action may, under some circumstances, be abated because of the pendеncy of a prior action in an appellate court (See 1 Am.Jur. 47-48); but certainly thе institution of a subsequent action is no ground for dismissing an appeal in a prior one. No authority is cited which remotely sustains such a proposition and we know of none.” Id.162 F.2d at 875 .
It will bе recalled that in the case at bar the action was dismissed, not on its merits, but on a preliminary procedural question. In such a case, it is our view that it would be improper to dismiss the appeal merely because the present appellant рursued a sepa
The judgment is reversed for proceedings consistent with the opinion.
Notes
. See former Civil Code, Section 78, source of KRS 452.480.