125 Ky. 366 | Ky. Ct. App. | 1907
Lead Opinion
Opinion op the Court by
Reversing.
This action was instituted by Mlaggie Beeler, administratrix of her deceased husband, E. C. Beeler, against the Cumberland- Telephone & Telegraph Company and the Louisville Home Telephone Company, to recover damages, for the death of her husband, which occurred in Louisville, Jefferson county, Ky., and which- is alleged to have resulted from the joint negligence of the two companies. In addition to the allegations of negligence, the petition states that decedent was a resident of Bullitt county, and that each of the defendants was a common carrier, and passed into Bullitt county. Summons Was served upon the Home Telephone Company by delivering a true copy thereof to its president, and also by delivering copies to parties who were stated in the return to be agents of said company, residing in Bullitt county. Summons was served upon the Cumberland Telephone & Telegraph Company by delivering copies to the local agents of the company. Each of the defendants filed a special demurrer and a plea to the jurisdiction of the court. Plaintiff then filed a demurrer and a reply to each of the pleas. Before the question of jurisdiction was heard, the defendant Louisville Home Telephone Company filed an answer in three paragraphs. In the first paragraph defendant raised the question of jurisdiction by setting forth that its residence was in Jefferson county, that it did not have any office or agent in Bullitt county, and that it did not pass into
At the outset there is presented for our. consideration the question, did the Bullitt circuit court have jurisdiction of the appellant, Louisville Home Telephone Company ? In passing upon this point, we shall first discuss the question whether or not appellant entered its appearance by filing its answer both to- the jurisdiction and to the merits, If the answer of the appellant did not enter its appearance, then we shall ha\^e to determine whether or not jurisdiction was acquired in any other way.
Among the eases relied upon by appellee is the case' of City of Covington v. Limerick, 107 Ky. 680, 19 Ky. Law Rep. 330, 39 S. W. 836, in which the court, after holding that the circuit court undoubtedly had jurisdiction over the person of the defendant, added the following: "But, in addition to the plea of jurisdiction, the answer- of the defendant goes to the merits of the controversy, and is a waiver of any objection to the jurisdiction over the person- of the defendant. This is the common
In the case of Baker v. L. & N. R. R., 4 Bush 623, we find, however, that the defendant first answered to the merits without suggesting any objection to the jurisdiction, and trial was then had, resulting in a verdict which was set asde and a new trial ordered. Next came a hung jury. About a year and a half thereafter the defendant attempted to plead to the jurisdiction' of the court. The court very properly held that its appearance had been entered long before.
In the case of Guenther & Bros. v. American Steel Hoop Company, 25 Ky. Law Rep. 795. 116 Ky. 419, 76 S. W. 480, the question involved was the construction and validity of subsection 6 of section 51 of the Code, authorizing service upon the agent of a non-reisdent doing business in this State. In that case the motion to quash the process was overruled. The defendant did not follow the practice adopted by appellant in the case under consideration. He did not file an answer as provided by section 118 of the Civil Code; but, along with the denial of other facts, simply put in issue the allegation of the petition that he was a non-resident of the State. Under the circumstances this court held that, having gone into the merits of the case as he did by his answer, he had entered his appearance to the action.
Likewise in the case of Brand v. Brand, 116 Ky. 791, 25 Ky. Law Rep. 987, 76 S. W. 868, 63 L. R. A. 206, the question of jurisdiction was not raised- by answer as authorized by section 118, but by special demurrer. Thereafter the defendant answered to the merits of the controversy. This court held that the trial court necessarily had jurisdiction of him. -
Counsel for appellee relies also upon the case of C. O. & S. W. Ry. Co. v. Heath, 87 Ky. 651, 10 Ky. Law Rep. 646, 9 S. W. 832. In that case defendant first filed an answer, pleading only to the jurisdiction, and a demurrer thereto was sustained; then the defendant pleaded to the merits. The case did not come to trial on an issue of fact raised by the answer, but the question of jurisdiction was raised and decided by a demurrer. The court then required the defendant to plead to the merits. The court pointed out very plainly and in very strong language that there had been no waiver in that case, because the party had not attempted to plead to the merits at all until after its plea to the jurisdiction had been overruled and it had excepted. But the court did not hold that the form of pleading adopted in the case at bar would not have been allowable.
In favor of the view that a defendant who files an answer to the jurisdiction, and in the same answer, without waiving the question of jurisdiction, pleads to the merits, does not thereby enter his appearance, we find the following cases:
In the case of L. & N. R. R. v. Munford, 68 S. W. 635, 24 Ky. Law Rep. 417, the court says: ‘ ‘ The first paragraph of the answer of the defendant is a plea in abatement. * * * The second paragraph, without waiving’ the first, may be treated as'a denial of the plaintiff’s injury.” The court did not itself attempt to decide the question of jurisdiction in this case, but submitted all issues, including the issue upon the question of jurisdiction, to the jury under proper instructions. The railroad company insisted that the court should have tried the jurisdictional question alone, but the court decided to the contrary, holding that the practice pursued was proper, and saying: “The fifth ground for a new trial claims that the court erred in submitting to the jury the question of the residence of the plaintiff. The objection is not tenable. Residence of a party is a question of fact to be determined from the evidence, and there was, to say the least of it, considerable evidence tending to show that plaintiff was a resident of Hardin county at the time of the institution of the action, and the question was very carefully and fully presented to the jury by a well-guarded instruction; and is as favorable to the de
■ An examination of the Code necessarily leads to the . conclusion reached* by this, court in the two cases above. Under the common law, pleas to the jurisdiction were permissible ; but this court has recently decided that the Code of Practice has virtually abolished pleas in abatement, and that defense to. an action can only be made by motion, demurrer, or answer. Scottish Union, etc., Insurance Co. v. Strain, 70 S. W. 274, 24 Ky. Law Rep. 960.
Now, in the case under consideration, defense could not be made by demurrer to the jurisdiction because the petition stated facts sufficient to show jurisdiction. Nor could defense be made by motion to quash the summons, because, if the court had jurisdiction at all, the summons had been served upon the proper officer, the president of the corporation. Under the circumstances, therefore, the only kind of a defense that could be made by appellant, Louisville Home Telephone Company, was by answer. This method is provided for by section 118, which is as follows: “A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleadings of his adversary; a failure so to do is a waiver of any of said objections except that to the jurisdiction of the court of the subject of the action.” An answer being
In speaking of this subject, Bliss on Code Pleading, section 345, has the following discussion: “The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated, and all the defenses which he elects to make must be embraced within it. Matter in abatement is as much
The New York court of appeals has taken the same view. In Sweet v. Tuttle, 14 N. Y. 465, we- have the following: “The first question is whether a defendant along with other defenses may set up- in his answer the non-rejoinder of other parties who ought to have been sued with him. Under the former practice the nonrejoinder of defendants could be pleaded only in abatement, and could not be joined with the plea in bar; but, under the Code, there is no classification of answers or defenses corresponding with the distinction between plea.s in abatement and in bar. The distinction is entirely gone, with the system to which it belongs. The defendant now answers but once, and he may set forth as many defenses as he thinks he has, but must state them separately. Among these his non-rejoinder, where it does not appear on the face of the complaint. This is to be tried like any other defense, and its effect upon the suit is the same.”
• The same court, in the ease of Gardner v. Clark, 21 N. Y. 399, 78 Am. Dec. 192, speaks as follows: “A doubt at one time existed whether the Code had abro
And in the case of Little v. Harrington, 71 Mo. 390, we find the following: “It is evident from- these statutory provisions that only one answer is contemplated, and this to contain whatever defense or defenses the defendant may have, thus dispensing with the common law rule that a plea in bar waives all dilatory pleas or pleas not going to the merits.”
And the same court, in the case of Johnson v. Detrick, 152 Mo. 243, 53 S. W. 891, says: “A plea to the jurisdiction, even when coupled with a plea to the merits, is permissible under our Code; and the latter plea does not, at common law, waive the former. ”
In view of the foregoing authorities, and for the additional reasons which will hereafter appear, we have reached the conclusion that a defendant may in one answer plead both to the jurisdiction and to the merits. It necessarily follows that a plea to the merits that recites that the defendant does not waive his objection to the jurisdiction of the court is not a waiver of the plea of the jurisdiction. We, therefore, hold that appellant’s answer did not enter its appearance to this action. That being the case, let us inquire whether or not the court acquired jurisdiction in any Other way. Section 73 of the Civil Code is as follows: “Excepting the actions mentioned in section 75-, an
Clearly, the decedent, Beeler, was a resident of Bullitt county. It is also established by the proof that while appellant did not reside in or pass into Bullitt county, the Cumberland Telephone & Telegraph Company did pass into that county. Undoubtedly each of these companies is a common carrier. Under the circumstances, we are of the opinion that, so far as the pleadings are concerned, appellant could have been joined, under the aforesaid .section, with the Cumberland Telephone & Telegraph Company; but we do not believe that the .question of jurisdiction should be determined by the pleading alone. Section 4 of the act of 1812 is as follows: “That in every species of personal action, where there are more than one defendant, the plaintiff commencing his action in a county where either of them reside, may issue any writ or writs directed to any county where the defendants, or any of them, may be found: Provided, That should a verdict not be found against the defendant or defendants resident in the county where the action is commenced, judgment shall not be rendered in such action.” Laws 1811-12, p. 181, c. 375. This provision is, in effect, the same as section 80 of the Civil Code,
Under this section this court has held that judgment by default against one of several defendants served in county where suit was brought, when petition does not state cause of action against him, and it is not made out by proof, will not authorize judgment, against a defendant served in another county who. pleads to the jurisdiction. Meguiar v. Rudy, 7 Bush 432. Thus it will be seen that it has been the settled policy of the law for almost 100 years to provide that where the venue of an action against several defendants is laid in the county of the. residence of one of them, no judgment can be rendered against any of the non-resident (speaking with reference to the county) defendants, if no recovery be had against the resident defendant. An action brought under section 73 in the county where one of several defendants resides, or in which, the plaintiff resides, if he reside in a county into which the carrier passes, is similar in every respect to the actions referred to in section 80 We are therefore of the opinion that the spirit and reason of that section, when considered in connection with the other sections of the Code and the statutes enacted prior thereto, apply with equal force to- the present
Having held that the provisions of section 80 apply to this ease, it necessarily follows that, as appellant did not answer 'to the merits of the case until after it had objected to the jurisdiction of the court, it did not
Judgment reversed, and cause remanded for a new trial consistent with this opinion.
Concurrence Opinion
Extended opinion
While concurring in the opinion of the court that appellant, by reason of this appeal, will not be before the trial court upon the return of the case, I desire to state some additional reasons for the conclusion I have reached. The doctrine that an appeal from a judgment void for want of proper process places the appellant in court on the return of the ease for all purposes of a trial was first announced by this court in the case of Grace v. Taylor, I Bibb. 430, decided in the year 1809. The opinion of the court is as follows: “It is considered by the court that, for as much as a copy of the petition and summons was not served on the defendant below, as renquired by the statute, but left at his residence with Ms wife, the judgment by default was therefore irregular, and is hereby reversed, and the cause is remanded to said circuit court; but as the defendant in that court hath appeared and prosecuted this writ of error, any further summons is unnecessary; therefore it is
In the above case, the defendant lived in the county, and the trial court had the power by proper process to bring' the defendant before the court, for. even if he had not entered his appearance by prosecuting the writ of error, a copy of the petition and summons could have readily been served upon him; but the doctrine has since been extended so as to include cases where the court could not obtain jurisdiction at all over the person of the defendant, unless he should enter his appearance by taking an appeal. The principle laid down in Grace v. Taylor was followed in other cases decided prior to and after the adoption of the Code. In none of these cases was any reason even' given in favor of the law announced; the court simply adhering in each instance to the precedent established. In our opinion, the venue of actions and the character and service of process were fixed by the Code. Though in many instances there are two of three jurisdictions in any one of which suit may be brought, the Code nevertheless requires that suit shall be brought in some one of those jurisdictions. . To say that the rights of plaintiff and defendant should be equal under the law, is simply to announce an elementary principle of justice. The plaintiff, of course, has the right to try his case wherever the Code permits, and certainly the defendant has the right to demand that it shall be tried nowhere else, and that he shall not be required to come into court except in pursuance of lawful process. If, in attempting to enforce this right, the defendant is virtually compelled to take an appeal, shall this court hold that he has abandoned his right under the law by his effort to enforce it in the
Gould any argument against such law be stronger than the mere statement of the law itself? Shall jurisdiction be made to depend upon the error of the trial court, and the effort of the defendant to establish that error? Shall the right of appeal be virtually abolished in such cases by holding that the very purpose of the appeal is defeated by the appeal itself? Sbch doctrine may be venerable from its antiquity; it may be entitled to respect because it has the force of a long established precedent, but it neither meets the requirements of reason, nor satisfies the demands of justice. Por thece additional reasons, therefore, I think it should be held that appellant by prosecuting this appeal has not entered its appearance to the action.