88 Ky. 226 | Ky. Ct. App. | 1889
delivered the opinion of the court.
The appellant, the Portland and Greenwood Turnpike Road Company, instituted a proceeding in the Pendleton County Court to condemn a right of way for its road through the land of the appellee, Joseph Bobb, under the act of the Legislature of April 11, 1882, and which, by its tenth section, is made applicable to the condemnation of lands for turnpike road purposes. The first section thereof provides: ‘‘When any railroad company authorized to construct and operate a railroad in this State shall be unable to contract with the owner of any land or material necessary for its use for the purchase thereof, it shall file in the office of the'
The appellant, as the foundation of the proceeding, filed what is styled in the caption, ‘ ‘ Description of land to be condemned,” and which merely gives such description, and asks the appointment of commissioners to assess the damages. It is questionable, perhaps, whether the description-given comes up to the “particular description” required by the act; but we will so regard it.'
There was no statement in any form filed stating that the company had been unable to contract with the appellee for the right of way, or that it was necessary for such purpose. The commissioners reported, and the appellee, having been summoned, appeared and presented a general and special demurrer. Both were overruled. The ground of the latter was that the appellant had attempted to incorporate itself by articles of incorporation filed for record in the office of the clerk of the county court under chapter 56 of the General Statutes, and had failed to file a copy of the articles with the Secretary of State within three months after the filing in the clerk’s office as directed by the statute, and, therefore, had no legal existence as a corporation.
This same question was made by the exceptions filed
The exceptions filed by the appellee made no issue as to the need of the land for the right of way, or whether the company had made any effort to obtain it by contract. A jury assessed the damages, and thereupon the county court rendered a judgment of condemnation. The appellee appealed to the circuit court, and there, upon his motion, the action was dismissed. This was done without any hearing upon the merits, and can not, therefore, operate as a bar to another proceeding for the same purpose.
The judgment does not give the reason for the dismissal. Counsel agree, however, in argument, that it was because of a failure at the institution of the proceeding, to file a petition setting forth the facts necessary to authorize the condemnation. It was not necessary, however, to file a petition in forma, according to the Code of Practice. It is a proceeding under a statute to enforce a statutory right, and the statute prescribes how it shall be done.
While, however, the statute says the company “shall file in the office of the clerk of the county court a par
It is true the proceeding upon the appeal, must be tried de novo. The statute so declares. But the same cause of action must be tried; and there having been a failure to present one in the county court where the original jurisdiction is vested, it could not be created in the circuit court upon appeal by an amendment. There was nothing to amend.
Judgment affirmed.