110 Ky. 656 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
Appellant brought suit in Robertson counity against appellee’s intestate for damages resulting from alleged malpractice as a surgeon in setting the bones of appellant’s arm, alleging that it was so negligently and un
For appellee it is insisted that in a large number of eases it has been held that a dismissal without prejudice is not a bar to a subsequent suit upon the same cause of action, and that, therefore, it is not a final order from which an appeal lies. Whether the order of the circuit court would be a bar to iany future action in any tribunal is not the test by which to determine whether it i.s a final order. What was determined was that the Robertson Circuit Court had no jurisdiction to try the case. So long as that judgment is umreversed, that question is res judicata between the parties, and will present an effective bar to future litigation of that cause of action in that court. So, if it was erroneous, it would, if unreversed, bar appellant’s action unless some other court had concurrent jurisdiction. The effect of the order is exactly the same as if a special demurrer to the jurisdiction had been sustained. This question has been decided in an opinion by Judge Lindsay in Dudley v. School, 9 Bush, 576, where it was said: “The order from which this appeal is prosecuted must be regarded as final. The special demurrer to the jurisdiction of the court was sustained, and a judg
The next question is whether the Iiobe-rtson Circuit Court had jurisdiction. For appellee it is contended that the action comes within the meaning of section 74 of the Civil Code of Practice, which provides: “Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing' in this State, must be brought in the county in which the defendant resides, or in which the injury is done.” At common law subh actions were transitory. It is suggested in the note to this section in Bullitt’s Code that it was adopted because plaintiffs in such cases often awaited opportunities to sue in localities believed to be favorable to themselves. For appellant it is contended that section 74 does not apply to cases of injury to person, where the injury was the result of a breach of contract. There is mo doubt that the words “action for an injury to the person,” as generally used, include not only such injuries as result from trespass, but also such as result from a breach of contract obligation; and in Winnegar’s Adm’r v. Railway Co., 85 Ky., 547, (4 S. W., 237), in an opinion by Judge Pryor,