108 Ky. 241 | Ky. Ct. App. | 1900
Opinion oi- the court by
Affirming.
This case was before this court on a former appeal, and the opinion delivered is found in 43 S. W. 731. The purpose of this action is to enforce a judgment which AY W. Ball recovered against the Maysville & Big Sandy Railroad Company, and one recovered by Boyd and wife and one by Nelson and wife against the same. The defense to t’he enforcement of each judgment differs somewhat,— especially as to the defense of the Ball judgment. A\re will consider the questions raised by the defense,? interposed on the several judgments.
Ball Judgment.
The appellant constructed its line of railway along a street in the city of Maysville, by the properly of Ball; and he claims that his property was damaged by reason of the interference with his easement of access, and by injuring his property by throwing soot and cinders on it, etc. For the damages thus resulting, he recovered judgment. By the previous opinion of the court, we adjudged that it was a taking of his property. The appellant filed
It is insisted by counsel for appellant that the contract which Ball and others entered into was not an executed conveyance of the right of way over any property, corporeal or incorporeal, that they or either of thorn owned, upon which the line of railway was or might be located, and also that it was not an executory agreement upon their part to convey such right of way to the appellant. It is argued that if it was an executed conveyance, or an executory agreement to convey, it was either a gift or a sale, and, if a sale, there was a certain purchase price for it, and that there was nothing in the contract which indicates that it was either a sale or a gift. It is said that, if the contract was a conveyance of the right of way over Ball’s incorporeal property, such conveyance might have been pleaded as a defense to Ball’s common-law action for damages, and it would be too late now to set it up. It is likewise admitted that the same result would follow if it was an executed agreement to part with the right of way over the property of the guarantors. The contract relied upon, executed by Ball and others, shows that the right of way was not to be a gift by them to the railroad company. On the contrary, the consideration for securing the right of way was that the company obligated itself to construct a line of railway between the points designated in the contract; and the further consideration was that the company was,to issue to them stock to the amount which the various counties, cities, and towns along' the line of railway expended in aid of furnishing the right of way,
It has been suggested that the contract which Ball had with the company was not enforceable until the amount of •his claim was ascertained by a suit for damages. If its terms deprive Ball of the right to collect anything from the railroad company for the injury he received, it is folly to say that the amount of his- injury should be ascertained. If he is not entitled to collect the judgment, by reason of his contract with the company, he never had any enforceable claim against it, and wasi not entitled to have any amount fixed. It is- wholly immaterial to the appellant whether Ball could compel his co-obligors- to contribute to his loss. Its claim of right to plead this contract a.s a defense to the judgment, thus making Ball pay the entire amount, shows that it has no consideration for or interest in Ball’s claim against his co-obligors. Therefore an argument which is made based upon a desire to regard Ball’s rights in a settlement of matters' between him a\nd his co-obligors comes without any force, nor is it applicable to the issue between him and appellant. Whenever there is a breach of the covenants of a contract, a cause of, action arises. When the railroad company constructed (its tracks along the street in close proximity to Ball’s property (if the guarantors were by their contract to furnilsh the property, for the taking of which Ball received judgment), then there was a breach of the contract upon thte part of the guarantors for their failure to furnish thip property taken from Ball, and therefore a cause of actiom had accrued to the railroad company against them jointly and severally. So when Ball instituted his action to rei cover damages the railroad company’s alleged cause off
Boyd and Nelson Judgments.
The Maysville & Big Sandy Railroad Company leased its line of road to the Chesapeake & Ohio Railroad Company, the latter company being in possession of the road at ,the time Boyd and Nelson instituted their actions. ' Their property was situated along the line of the Maysville & Big Sandy Railroad Company, and they sought to recover damages for the same causé for which Ball recovered judgment. The judgments which they each recovered are attacked collaterally in this proceeding. The averments of the Maysville & Big Sandy Railroad Company’s answer in regard to these two judgments are as follows, to wit:
Before the institution of these suits the Legislature passed an act amendatory to section 51, Civil Code of Practice, the first section of that act being as follows: “Where the defendant corporation ' is the owner or the lessee of a railway in this State, ’ or the builder or constructor of a railway in this State, and can not be served with summons under the existing laws, then the person or corporation controlling or operating the railway so owned or built or constructed shall be treated as the representative of the defendant, and service of summons upon such of the officers or agents of the persons or corporation operating or controlling the railway as would be required if such controller or operator were the party sued, shall be a sufficient service of summons upon the defendant to the action; but such service must be twenty days before the commencement of the term, and the facts authorizing the same must be made to appear by the return of the officer or the affidavit of some person other than the plaintiff in the action, and the appearence of the defendant to move
The proceedings in court, after the return of the summonses, differ materially in the Boyd and Nelson cases, and part of the judgment in the Boyd case is in the following language: “The court, having fully considered the defendant’s objections to the jurisdiction of the court in this action, overrules the same, to which the defendant objects and excepts. The defendant moved the court for leave to withdraw its special entry of appearance herein, to which the plaintiffs objected. The court, having considered the defendant’s said motion, sustained the same, and allowed it to be withdrawn, to which the plaintiffs excepted.” The language indicates that the defendant objected to the jurisdiction of the court generally, but, as the defendant then asked leave to withdraw what was denominated a “special entry of appearance,” it is presumed that the court below understood it to be a special
Action is not taken upon the contempt proceedings, but the question is reserved for future action of the court. The judgment is affirmed.