Carpenter v. Laswell

• Decision Date: 18 June 1901
• Citation: 63 S.W. 609
• Parties: CARPENTER v. LASWELL. [1]
• Court: Kentucky Court of Appeals

63 S.W. 609

CARPENTER v. LASWELL. ^[1]

Court of Appeals of Kentucky.

June 18, 1901

Appeal from circuit court, Barren county.

"Not to be officially reported."

Action by Frank M. Laswell against Charles E. Carpenter and F. C Bayless to recover damages for the destruction of property by fire. Judgment for plaintiff against Charles E. Carpenter and that defendant appeals. Affirmed.

V. H Baird, for appellant.

W. L Porter, Basil Richardson, and Geo. T. Duff, for appellee.

BURNAM J.

Appellee Frank M. Laswell, instituted this suit against Charles E. Carpenter and F. C. Bayless as partners, alleging that they were engaged in the manufacture of handles for axes, hatchets, and other tools, by means of machinery, and that in operating their machinery they used as fuel wood and shavings; that the smoke and sparks from their furnace passed out through a large smokestack, which had a spark arrester attached to the top of it; that on a certain windy day in March, 1898, they negligently and carelessly failed to have the spark arrester placed over the top of their chimney stack; and that, by reason of such negligence, sparks of fire and coals were allowed to escape therefrom, which fell upon the roof of his dwelling house, by which it was set fire and totally destroyed. Personal service was had upon Bayless, and an attachment sued out against Carpenter, on the ground that he was a nonresident of the state. Carpenter filed a special demurrer to the jurisdiction of the court upon the ground that the attachment could not be granted on the ground of nonresidency for any claim other than a debt or demand arising upon a contract, express or implied (see section 194. subsec. 8, Civ. Code), and that he could not be brought before the court in the case by constructive process. Plaintiff thereupon amended his petition, and alleged, as an additional ground for attachment, that Carpenter was about to sell, convey, and otherwise dispose of his property with the fraudulent intent to cheat, hinder, and delay his creditors, and was about to remove his property, or a material part thereof, out of the state, not leaving enough therein to satisfy plaintiff's claim. The defendant Carpenter again filed a special demurrer, which was overruled. He thereupon filed his separate answer, in which he alleged that Bayless had no interest in the plant, but was employed by him, at a stated salary, to manage the business for him, and denied the negligence complained of. Bayless filed a similar answer, and a trial before a jury at the November term, 1898, resulted in a failure of the jury to agree on a verdict as to Carpenter, and the proceeding against Bayless was dismissed upon the ground that he had no interest in the plant. Plaintiff thereupon had a summons issued, which was served upon F. C. Bayless, as agent of appellant, Carpenter, as required by subsection 6 of section 51 of the Civil Code...