Combs v. Hargis Bank & Trust Company
| Decision Date | 06 May 1930 |
| Citation | 234 Ky. 202 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Combs et al. v. Hargis Bank & Trust Company et al. |
2. Banks and Banking. — Suits against bank, except those specifically designated, must be brought in county of its principal office or place of business, unless arising out of transaction with agent (Civil Code of Practice, secs. 62-66, 70, 71, 75.)
3. Pleading. — Petition, good as action to recover for injury to realty is not rendered wholly bad because seeking to recover damages to personalty.
4. Venue. — Action for damages to real property should be brought in county in which realty or some part thereof is situated (Civil Code of Practice, sec. 62).
5. Damages. — "Legal injury" must be violation of some legal right and is distinct from "damage," which is harm, or loss, sustained by injury.
6. Venue. — Destruction of hotel by fire, growing out of negligent conduct, held injury to realty for which action is maintainable where realty is situated (Civil Code of Practice, sec. 62.)
Appeal from Perry Circuit Court.
JESSE MORGAN and C.S. LANDRUM for appellants.
J.W. CRAFT, W.A. STANFILL and TURNER & CREAL for appellees.
Reversing.
This action was instituted by appellants against the appellees and A.H. Hargis to recover possession of a certain lot in the city of Hazard and for damages in the sum of $350,000 for the alleged negligent and careless burning of the Combs Hotel while it was in the possession of appellee. The suit was instituted in the Perry circuit court. D.Y. Combs, prior to his death, was indebted to A.H. Hargis in the sum of $180,000. To secure this indebtedness a mortgage was executed to the Hargis Bank & Trust Company as trustee. We do not have before us the mortgage, or any contract in relation to the matter, but is it made to appear in the petition that the hotel was operated by Combs and appellees for some time, and thereafter by appellees until it was destroyed by fire. There was $180,000 insurance which was collected and applied to the extinguishment of the debt of Hargis. The possession of the hotel was placed in appellees through court proceedings wherein it was adjudged that the appellants, who are the heirs of D.Y. Combs, should be enjoined from interfering with appellees in the management and control of the hotel. We do not have before us the proceedings in that case.
As to whether there was a misjoinder in the petition, in that it sought to recover possession of the lot and damages for the destruction of the hotel by fire, we express no opinion as that question is not before us.
Prior to the term of court at which this action was to stand for trial, notice was given by appellee and A.H. Hargis that an application would be made for a change of venue. It does not appear that the application was actually made. When court met a motion was made asking that the regular judge vacate the bench, and this motion was sustained When a special judge had been provided a motion was made to quash the summons which had been executed on appellee and A.H. Hargis in Breathitt county. This motion was overruled. A special demurrer was then filed to the petition raising the question of the jurisdiction of the court, and it was sustained as to appellee. The sole question presented on this appeal is whether the Perry circuit court has jurisdiction to hear and determine the questions involved.
As to whether the appellees entered their appearance by the steps which were taken, or whether they raised the question of the jurisdiction of the person, is ably argued by counsel representing the respective parties, but it will be unnecessary for us to determine these questions if a proper construction of the sections of the Civil Code relating to the procedure localized the jurisdiction to hear and determine this suit in the Perry circuit court. There is no doubt that the Perry circuit court had jurisdiction of the subject-matter.
It is urged by the appellees that the action is in tort, and probably that is true, but, if the action is localized in Perry county by reason of the provisions of the Code, it makes no difference whether it was an action on a contract, or in tort. Appellees rely on the opinion in the case of Employers' Indemnity Company v. Duncan, 159 Ky. 460, 167 S.W. 414. The special judge, so it appears, based his judgment solely on the opinion in that case. It was there held that the venue of actions against banks is fixed exclusively by the provisions of section 71 of the Civil Code of Practice. That is true in so far as that section of the Code undertakes to localize actions against banks, but there are certain actions that are excepted by the provisions of that section itself. The section excepts all actions mentioned in sections 62 to 66, both inclusive, and if this action is brought under the provisions of section 62 of the Civil Code of Practice, as contended by appellants, the provisions of section 71 have nothing to do with it. The proper construction of section 71 is that in all suits against banks or insurance companies, except those mentioned in sections 62 to 63, both inclusive, and those mentioned in sections 70 and 75, must be brought in the county in which its principal officer or place of business is situated, unless the action arises...
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