Bastian Bros. Co. v. Field, Judge

• Decision Date: 08 December 1939
• Citation: 280 Ky. 727
• Parties: Bastian Bros. Co. v. Field, Judge.
• Court: United States State Supreme Court — District of Kentucky

280 Ky. 727

Bastian Bros. Co. v. Field, Judge.

Court of Appeals of Kentucky.

December 8, 1939.

1. Appeal and Error. — A court order, sustaining or overruling motion to quash officer's return on summons, is interlocutory and not appealable to Court of Appeals.

2. Process. — As court order, sustaining or overruling motion to quash officer's return on summons, is interlocutory and not appealable, court may reconsider ruling, set aside order, and enter contrary one at any time before final judgment.

3. Appeal and Error. — The circuit court's last and final order on motion to quash officer's return on summons is reviewable by Court of Appeals, if proper exceptions are taken thereto and evidence heard is preserved and brought to Court of Appeals on appeal from final judgment in the cause.

4. Courts. — The constitutional provision, granting Court of Appeals original jurisdiction in controlling inferior courts' actions and rulings, does not confer such jurisdiction, unless inferior court is proceeding, or about to proceed, without jurisdiction, or is erroneously proceeding within its jurisdiction to great and irreparable injury of party petitioning Court of Appeals for mandatory order granting relief and no other adequate remedy is provided (Constitution, sec. 110).

5. Courts. — The Court of Appeals has no original jurisdiction to grant mandatory order, directing circuit court judge to sustain petitioner's motion to quash sheriff's return on summons in action against petitioner, as error in overruling motion may be corrected on appeal from final judgment, great and irreparable injury is not caused by mere delay and cost incident to final trial on merits, and plaintiff in such action may suffer dismissal thereof, if motion is sustained, and contest such ruling on appeal from judgment of dismissal (Constitution, sec. 110).

In Court of Appeals.

Trabue, Doolan, Helm & Stites for petitioner.

William H. Field pro se.

OPINION BY JUDGE THOMAS.

Sustaining demurrer and dismissing petition.

This is an original action filed in this Court by petitioner, Bastian Brothers Company, a manufacturing corporation in the State of New York, against the respondent the Hon. William H. Field, Judge of the Third Division of the Common Pleas Branch of the Jefferson Circuit Court, in which petitioner seeks a mandatory order from this court directing respondent to enter an order upon the records of his court sustaining petitioner's motion to quash the sheriff's return on a summons against it issued upon a petition filed in the Jefferson circuit court by one Edward F. Bannon as plaintiff, against petitioner, as defendant, wherein Bannon was seeking to recover a judgment against petitioner for the sum of $21,780 claimed to be due him as commission for selling petitioner's product in the city of Louisville.

The facts as disclosed by the petition, and by the orders and opinion of respondent — filed as exhibits with the petition — are substantially these: Bannon claims to have been acting as salesman in Louisville of petitioner's manufactured products, receiving as compensation for his services an agreed commission on the amount of his sales. On February 20, 1937, he filed his action in the Jefferson circuit court against petitioner, in which he sought to recover as compensation due him the sum of $650. That action, under the local rules of practice in the Jefferson circuit court, was allotted to the division presided over by respondent. Petitioner, as defendant in that action, did not in any manner question the service of process against it, but answered the petition, thereby entering its appearance. That action will be referred to herein as the "first action."

On April 16, 1937, slightly less than two months after the filing of the first action, Bannon filed another one in the same court against petitioner, the same defendant, seeking to recover from it for other similar services the sum of $21,780, which action, under the same rules, was allotted to the division of the Jefferson circuit court presided over by the Hon. Eugene Hubbard. Defendant (petitioner here), in that action, before taking other defensive steps, entered motion to quash the return of the sheriff on the summons issued in that action on the ground that the person upon whom it was served was not its agent. Evidence was heard on that motion which was transcribed and filed as a part of the record. The court overruled the motion to quash and the case remained on the docket of Judge Hubbard until a later order made by him transferring it to the division presided over by respondent. It will hereafter be referred to as the "second action."

On March 5, 1938, Bannon, as plaintiff in the first action (which was still on the docket of respondent), amended his petition therein by which he sought the recovery for the same cause declared on in the second action. Respondent permitted that amendment to be filed, but ruled that it was necessary for process to issue thereon which was done, and it was executed on the same character of agent as was done in the second action. When that process was returned as so executed petitioner moved before respondent that the return be quashed, which was based upon the same ground as was his former similar motion made in the second action. That motion was heard upon the same evidence that was introduced before Judge Hubbard in disposing of the motion made in the second action while pending before him. Respondent sustained the motion pursuant to a finding by him that the person upon whom service was made was not the requisite character of agent for that purpose. In the meantime, or following that order, the second action was transferred by Judge Hubbard to the division of the court presided over by respondent. Following such transfer defendant moved to set aside the order of Judge Hubbard overruling petitioner's motion to quash the return on the summons issued in the second action, and that the motion be sustained pursuant to an order theretofore made by respondent in the first action before whom the second action was then pending, but respondent — although he had previously made a different ruling on the same evidence with reference to the process...