Gillen v. Illinois Cent. R. Co.

• Decision Date: 09 March 1910
• Citation: 125 S.W. 1047,137 Ky. 375
• Parties: GILLEN v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

125 S.W. 1047

137 Ky. 375

GILLEN v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

March 9, 1910

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Cora L. Gillen against the Illinois Central Railroad Company. From a judgment of dismissal for want of jurisdiction, plaintiff appeals. Reversed and remanded.

Miller & Miller, for appellant.

Wheeler Hughes & Berry, for appellee.

HOBSON J.

Cora L Gillen brought this suit in the McCracken circuit court against the Illinois Central Railroad Company. She alleged in her petition that in September and October of 1908 the defendant negligently permitted combustible material to be upon its track and right of way, and thus started a fire which spread upon certain lands owned by her adjoining the right of way, destroying her fences and timber, to her damage in the sum of $800. The petition was filed on April 24, 1909. On May 18th the defendant filed answer, which was a traverse of the petition. On May 27th the plaintiff filed an amended petition charging that the defendant negligently failed to have its engines equipped with proper spark arresters and negligently operated its engines. The defendant thereupon asked a continuance of the case at the plaintiff's cost which was ordered. At the next term of the court, the defendant offered to confess judgment for $165, which was refused. A jury was then called and the trial was begun. A number of witnesses were examined on behalf of the plaintiff and, it appearing from the evidence that no part of the land lay in McCracken county, the defendant tendered an amended answer pleading this fact. The court allowed the amended answer to be filed, and thereupon dismissed the action without prejudice for want of jurisdiction. The plaintiff appeals.

Section 62 of the Civil Code of Practice is in these words "Actions must be brought in the county in which the subject of the action, or some part thereof, is situated--(1) For the recovery of real property, or of an estate or interest therein. (2) For the partition of real property except as is provided in section 66. (3) For the sale of real property under title 10, chapter 14, or under a mortgage, lien or other encumbrance or charge, except for debts of a decedent. (4) For an injury to real property."

The ground of the court's ruling is that the action is for an injury to real property; and therefore, under this section, the McCracken circuit court is without jurisdiction. The plaintiff insists, however, that the McCracken circuit court had jurisdiction under section 73, regulating actions against carriers. The concluding part of that section is as follows: "An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he reside in a county into which the carrier passes." We do not concur in this view. Section 62 regulates actions relating to land. Section 73 covers other actions than those made local by section 62. It was not intended that an action to recover a tract of land, if brought against a carrier, might be brought in a county other than that in which the land lies; for the occupation of the defendant would in no manner affect the character of the action.

It is also insisted for the plaintiff that the objection to the jurisdiction of the McCracken circuit court in the case was waived by the defendant answering to the merits, and going into the trial without making the question. A determination of this matter turns on the proper construction of the provisions of the Code when read in connection with the statutes regulating the jurisdiction of courts. Section 62 is a part of title 5, which regulates the county in which an action must or may be brought. Some light will be thrown on the meaning of the section when it is read in connection with the other sections of the title. By section 63 an action for a fine or forfeiture, or against an officer or on his official bond, must be brought in the county where the cause of action arose. By section 64 a proceeding to establish or set aside a will must be brought in the county in which the will, if valid, should be recorded. By section 65 an action to settle the estate of a deceased person must be brought in the county in which the representative qualified. By section 66 an action for the distribution of the estate must be brought in that county. By section 67 an action by a ward against his guardian must be brought in the county in which the guardian qualified. By section 68 an action against the commissioners of the sinking fund or the board of education must be brought in Franklin county. By section 69 an action against a prisoner or an inmate of an insane asylum must be brought in certain counties. By section 70 an action upon a return of no property found must be brought in the county in which the judgment is rendered or in which the defendant resides or is summoned. By section 71 an action against an incorporated bank or an insurance company must be brought in certain counties. By section 72 actions against corporations must be brought in certain counties. By section 73 actions against carriers must be brought in certain counties. By section 74 an action for an injury to the person or for slander or libel must be brought in certain counties. By section 75 an action against a nonresident must be brought in certain counties. By section 76 an action for alimony or divorce must be brought in certain counties. And by section 77 an action against a contractor for public work must be brought in certain counties. The remaining sections of the article regulate actions which are not otherwise provided for. It will thus be seen that actions for the recovery of money are required to be brought in certain counties under sections 62, 63, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76 and 77.

The jurisdiction of courts is regulated by the Kentucky statutes. Certain jurisdiction is conferred on the courts inferior to the circuit courts. Their jurisdiction is defined in section 966 (Russell's St. § 2813): "The circuit court shall be a court of record and shall have original jurisdiction of all matters, both in law and equity, of which jurisdiction is not exclusively delegated to some other tribunal, and shall have jurisdiction in all cases where the title to land is in question, or in which it is sought to enforce a lien upon, or to subject, land by provisional remedy to the payment of debt." Section 92 of the Code provides: "A special demurrer is an objection to a pleading which shows--(1) That the court has no jurisdiction of the defendant or of the subject of the action; or (2) that the plaintiff has no legal capacity to sue; or (3) that another action is pending in this state between the same parties, for the same cause; or (4) that there is a defect of parties, plaintiff and defendant. Either of said grounds of objection, shown to exist by a pleading, is waived, unless distinctly specified by a demurrer thereto, except the objection to the jurisdiction of the court of the subject of the action, which objection is not waived by failing so to make it; but a party failing so to make it when or before he files a pleading, other than a demurrer, is liable for all costs resulting from such failure." Section 118 also provides: "A party may, by an answer or other proper pleading, make any of the objections mentioned in section 92, the existence of which is not shown by the pleading of his adversary; and failure so to do is a waiver of any of said objections, except that to the jurisdiction of the court of the subject of the action."

Under these provisions, if the suit had been brought in the McCracken quarterly court, the amount sued for being $800, and not within the jurisdiction of that court, it would have had no jurisdiction of the subject of the action, and the objection to its jurisdiction would not have been waived by the failure to make it by demurrer or answer. But the subject of the action is simply a sum of money within the jurisdiction of the circuit court. Practically the same language is used in sections 63-77 as in section 62; and we do not see that a distinction can be drawn between actions brought under section 62 for the recovery of money, and an action for its recovery under the succeeding sections. In Johnson v. Johnson, 12 Bush, 485, the court had before it an action for divorce not brought in the right county, as required by section 76; but no objection was made until after the proof was taken and the case was submitted. It was held that the objection was waived. This ruling was followed in Tudor v. Tudor, 101 Ky. 530, 41 S.W. 768, 19 Ky. Law Rep. 747. In Norton v. Marksberry, 9 Ky. Law Rep. 424, the court had before it a judgment in an action for the distribution of a decedent's estate, which it was urged had not been brought in the proper county as required by section 66. The judgment was held valid. The court said: "As before stated, the Grant circuit court had general jurisdiction of the subject of the actions, and if Hannah Norton, as administratrix, and the children, had the right to have said actions localized, as a personal right, under the provisions of the Code, they certainly had the right to waive and did waive that right by appearing, without objection and defending the actions upon their merits, and seeking personal relief by cross-actions. Therefore the judgments, rendered in these actions, are valid."

A like question has often arisen where actions against a carrier under section 73, or against a corporation under section 72 were brought in the wrong county; and it has been...