Baker v. Louisville & N. R. Co.
| Decision Date | 24 February 1868 |
| Citation | 67 Ky. 619 |
| Parties | Baker v. Louisville and Nashville Railroad Company. |
| Court | Kentucky Court of Appeals |
1. A plea to the jurisdiction of the circuit court, after a defense to the merits of the action, unless for want of jurisdiction over the subject-matter of the action, comes too late.
2. A defense to the merits of an action amounts to a waiver of the objection to the jurisdiction over the person of the defendant.
3. In an action on contract in the Warren circuit court, against the Louisville and Nashville Railroad Company, objection to the jurisdiction, because it did not have its principal office or place of business in that county, and that its chief officer did not reside therein, is waived, by answer to the merits of the action.
4. When the residence of the chief officer of a corporation, created by the laws of this State, and its principal office and place of business are not in the county in which a transitory action is brought against such corporation, unless these facts appear in the petition, objection to the jurisdiction of the court over the person of the defendant cannot be made by demurrer. Such objection must be made by plea; but after answer to merits of the action, such plea, cannot be maintained.
5. The court cannot judicially know that the residence of the chief officer of a corporation, or its principal office or place of business, is not in the county in which an action is brought against such corporation. (Civil Code, sec. 101.)
APPEAL FROM WARREN CIRCUIT COURT.
GRIDER For Appellant.
[Brief not in record.]
J. R UNDERWOOD, For Appellee,
Appellant brought this action in the Warren circuit court on the 5th of July, 1865, against appellee, for the price of a quantity of wood sold by him to it.
In a few days after the institution of the action, the summons was served on the agent of appellee in Warren county; and, at the succeeding term of said court, James Guthrie, as appellee's president, appeared and filed his answer to the merits of the action, neither calling in question nor contesting the jurisdiction of the court.
The cause was continued on the docket until the February term 1867, of said court, when there was a trial upon the merits, and a verdict rendered in favor of the plaintiff for two thousand dollars. On grounds filed, and a motion thereof, a new trial was awarded appellee.
A year thereafter, at the February term, 1868, of said court, appellee filed an amended answer to the merits of the action, and a jury was sworn, and heard the evidence; but, failing to agree, was discharged, and the cause continued.
At the August term, 1868, appellee filed a demurrer to the petition, the ground of which, as stated in the demurrer, is, that, " it appears from the petition that the court has not jurisdiction of the said case."
The demurrer was sustained by the court below; and appellant, having declined to plead further, his petition was dismissed, and he appealed.
It is insisted for appellee, that as appellant's action, being based on a contract for an alleged sale of wood to it, that the Warren circuit court had no jurisdiction of the case, but that the action should have been brought in such court of Jefferson county as had jurisdiction over the subject-matter of the action; and sections 93, 101, and 102 of Civil Code, are relied upon as sustaining that position.
Section 101, supra, is as follows: " An action, other than those mentioned in sections 93 and 94, against a corporation created by the laws of this State, may be brought in the county in which it is situated, or has its principal office or place of business, or in which its chief officer resides; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency.
The other two sections referred to need not be quoted, as they direct where actions arising for the causes as therein enumerated may be brought, which enumeration does not embrace the cause of action set out in this petition, and are referred to by the counsel of appellee to show that it is not embraced in either of said sections.
In argument it is said that the petition " does not show any fact by way of averment to give the Warren circuit court" jurisdiction, and this court will take judicial notice of the fact that the chief officer of appellee resides in ...
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