Associated Electric Co. v. Fitch
| Decision Date | 24 February 1950 |
| Citation | 312 Ky. 328 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Associated Electric Co. v. Fitch. Kentucky-Tennessee Light & Power Co. v. Fitch et al. |
The Court of Appeals, Latimer, J., held in the first action that plaintiff waived its right to challenge the judge's right to sit in the case, and that service of a notice of motion to revive on plaintiff's attorney of record was sufficient. The court held in the second action that an order dismissing the action for lack of prosecution was void.
Judgment in first action affirmed, and judgment in second reversed with directions.
1. Appeal and Error. — A litigant who made no objection in lower court to appointment of special judge and who appeared specially before that judge to obtain a favorable ruling waived right to challenge appointment on appeal.
2. Abatement and Revival. — A notice of motion to revive served on attorney of record representing nonresident was sufficient, and no summons or warning order was required. Civil Code of Practice, secs. 501, 502, 503, 625, 631.
3. Abatement and Revival. — Revival of action is unnecessary if either party dies after submission of case in Court of Appeals. Civil Code of Practice, secs. 501, 502, 503, 625, 631.
4. Abatement and Revival. — Where defendant died after submission of case in Court of Appeals and after original opinion had been handed down but while case was pending on petition for rehearing, it was proper for executrix to revive action in her name, file mandate and take further steps in the action. Civil Code of Practice, secs. 501, 502, 503, 625, 631.
5. Trial. — When equity case is called on day set aside by statute for calling equity docket, party is bound to take notice that orders may be entered against him; but at all other times he must be served with notice for court to have jurisdiction to enter any order. Civil Code of Practice, sec. 367a-10.
6. Trial. — Where action was filed in 1940 and pleadings were made up, and it was ordered in 1941 that action be referred to official stenographer for taking of proof, and in 1947 on first day of May term, court entered order without notice striking case from docket for failure to prosecute, order was not entered on day of term provided for call of equity docket and being without notice was void. Civil Code of Practice, sec. 367a-10.
7. Appeal and Error. — Motion to redocket equity case dismissed for lack of prosecution was equivalent to a motion to set aside a void judgment, and upon its being overruled, an appeal was properly taken to the Court of Appeals. Civil Code of Practice, secs. 367a-10, 745, 763.
8. Limitation of Actions. — Where order striking equity case from the docket was void, statute of limitations did not begin to run on the action. Civil Code of Practice, sec. 367a-10.
James W. Stites for appellants.
Ernest Woodward and Woodward, Hobson & Fulton for appellees.
Before S.Y. Trimble, IV, Special Judge.
Affirming in first action, reversing in second.
These two cases have been consolidated on appeal. The first case, designated No. 16311, has twice been before us. The parties to these two actions are substantially the same and the subject matter is similar, but since different questions of procedure are involved these cases must be disposed of separately.
Action No. 16311 was last before this court in 1948. See Fitch v. Kentucky-Tennessee Light & Power Co., 308 Ky. 652, 215 S.W. 2d 91. On that appeal this court reversed with directions to enter judgment in conformity with the opinion. While the case was yet pending in this court on a petition for rehearing, Roland Fitch died. The petition for rehearing was denied and the mandate issued on December 17, 1948. Further questions having arisen in this, and in the second action, numbered 16385, Judge John B. Rodes entered an order disqualifying himself in both actions, and ordered the clerk to certify same to the Chief Justice for appointment of a special judge. Hon. S.Y. Trimble, IV, was designated. Following this designation, a notice of motion to revive the first action in the name of Mary Fitch, executrix of the decedent, Roland Fitch, was served on appellant's attorney of record. Appellant appeared specially and moved to quash the return on the notice. The motion was overruled. Mary Fitch, executrix, then filed motions to revive in her name and to file the mandate. The mandate was ordered filed and, pursuant to motion to revive, it was ordered that Mary Fitch, executrix of Roland Fitch, deceased, recover the amount of judgment as entered in accordance with the mandate. Associated Electric Company prayed an appeal, which was granted.
Appellant urges three grounds for reversal: (1) The appointment of S.Y. Trimble, IV, as special judge in action No. 16311 was void. (2) Appellant's motion to quash the return on the notice of motion to revive should have been sustained; and (3) Revivor should have been made in this court, if made at all.
We think the question of whether or not the Hon. S.Y. Trimble, IV, was properly appointed special judge is immaterial since no objection was made in the lower court, and further because appellant appeared specially before him to obtain a favorable ruling on the motion to quash. By so appearing, appellant waived this question when it failed to challenge Judge Trimble's right to sit in the case. Duff v. Hagins et al., 147 Ky. 246, 143 S.W. 1059. Also Salyer v. Napier, 21 Ky. Law Rep. 172, 51 S.W. 10, and Proctor v. Peoples Bank of Morehead, 283 Ky. 100, 140 S.W. 2d 667.
The second error urged is the overruling of appellant's motion to quash. It is claimed that notice of motion to revive served on attorney of record is insufficient and not in compliance with the requirements of Civil Code of Practice, sections 501, 502, and 503. Revivor after notice is proper under section 503. But, appellant insists that this notice cannot be served on an attorney of record, and that, therefore, a summons or warning order was required under sections 501 and 502, because appellant was not a resident of this state. This contention may be very quickly answered by reference to sections 625 and 631 of the Civil Code of Practice, which permit a notice to be served on a person's attorney. The provisions of section 631 are particularly explicit in allowing such service as to any notice required by the Code in an action unless it is otherwise expressly provided. Appellant cites Miller et al. v. Commonwealth, 192 Ky. 709, 234 S.W. 307, to the contrary. But this case is clearly distinguishable from the case at bar. The Miller case was a criminal proceeding; and it further appears that the notice to be given was one ordered by the court and not a notice provided for by the Civil Code of Practice. It is not denied that the notice was served on Judge Stites, who was at that time, and still is, counsel for appellant. We think the notice, as given, complied with the requirements of the Code.
The last contention is, that revivor, if made at all, should have been made in this court. This contention, likewise, cannot be sustained. In the case of Wallace v. Wallace's Executrix et al., 150 Ky. 33, 150 S.W. 13, we held that the appellee having died after submission of the case, the effect is the same as if she had died after the judgment of this court was rendered. In that case the decision of the lower court was affirmed; but we are of the opinion that the principle involved should properly extend to any case wherein a party dies after submission in this court, regardless of whether the decision of the lower court is affirmed or reversed. Moreover, we find...
To continue reading
Request your trial