Hughes v. R.O. Campbell Coal Co.

• Decision Date: 08 February 1924
• Citation: 258 S.W. 671,201 Ky. 839
• Parties: HUGHES ET AL. v. R. O. CAMPBELL COAL CO. ET AL.
• Court: Kentucky Court of Appeals

258 S.W. 671

201 Ky. 839

HUGHES ET AL. v. R. O. CAMPBELL COAL CO. ET AL.

Court of Appeals of Kentucky.

February 8, 1924

Appeal from Circuit Court, Bell County.

Action by the R. O. Campbell Coal Company against T. C. Hughes and others. From an adverse judgment, the named defendant and others appeal. Affirmed.

Jas. H Jeffries, of Pineville, for appellants.

William Low and Low & Bryant, all of Pineville, for appellee R. O Campbell Coal Co.

Jas. M Gilbert, of Pineville, for appellee Liberty Coal & Coke Co.

THOMAS J.

The appellee and plaintiff below, R. O. Campbell Coal Company, is a foreign corporation organized under the laws of the state of Georgia. It filed this equity action in the Bell circuit court against appellants and against the appellee, Liberty Coal & Coke Company (hereinafter referred to as coke company), whereby it sought the recovery of a judgment against appellants for $72,490, and the enforcement of a mortgage lien against some real property situated in Bell county to secure $6,070 of the amount sued for. It alleged in the petition that the coke company held some kind of lien or claim against the mortgaged property, and asked that it be required to answer and set up its claim, which it did, and made it a cross-petition against plaintiff and its other codefendants and against Arcadia Coal Company and H. R. Shorter, and prayed a personal judgment against them for its debt, and asserted a superior lien against the property mortgaged to plaintiff to secure it. Summons issued on the cross-petition for the cross-defendants therein, against whom personal judgment was sought, but it does not appear that the process was ever served on any of them against whom it was issued, nor did they in any manner enter their appearance to the cross-petition.

The original defendants, T. C. Hughes, Leah E. Hughes, Antonio Coal Company, and Kentucky Collieries Corporation, filed what they styled an "answer in the nature of a special demurrer to the petition," which they stated was "upon the ground that the plaintiff has not legal capacity to sue herein," and in it they alleged that plaintiff was a foreign corporation, and, in substance, that in transacting the matters upon which it sued it was engaged in doing business in Kentucky, and that it had never complied with the provisions of section 571 of our Statutes requiring corporations (except foreign insurance companies) "carrying on any business in this state" to file in the office of the Secretary of State a statement executed as required and "giving the location of its office or offices in this state, and the name or names of its agent or agents thereat, upon whom process can be served." No reply was filed to that pleading (if it may be called such) but plaintiff filed a demurrer thereto which the court sustained, and defendants declined to plead to the merits, whereupon the cause was submitted upon the petition of plaintiff and the answer and cross-petition of the coke company, and the court gave judgment in favor of plaintiff, except the coke company, for $6,070 with interest, and continued for further adjudication the other item of $66,420, sought to be recovered by it in the petition. It also rendered in favor of the coke company a personal judgment against cross-defendants, the Arcadia Coal Company and H. R. Shorter, for the sum of $2,302.65, and adjudged it a superior lien upon the mortgaged real property and directed the latter to be sold by the master commissioner to satisfy the liens adjudged against it, and from that judgment the appellants, T. C. Hughes and wife, and Antonia Coal Company and the Kentucky Collieries Corporation, prosecute this appeal.

It is first insisted that the personal judgment in favor of the coke company is erroneous, because the cross-defendants, against whom it was rendered were not personally served with process, as seems to be required by section 692 of the Civil Code of Practice as a condition precedent to entitle the cross-petitioner to it. That it is necessary for a cross-defendant to be served with process, or enter his appearance to the pleading filed against him before a personal judgment against him may be rendered, is undoubtedly the correct practice, but the trouble with appellants' contention is that no personal judgment was rendered in favor of the coke company against either of them. The only personal judgment in favor of that company was against the Arcadia Coal Company and H. R. Shorter, neither of whom are appellants here, and the latter have no right to complain of an erroneous judgment against others than themselves. We, therefore, find no cause to disturb the judgment in favor of the coke company in the particulars complained of, or for any other reason.

It is earnestly insisted, however, that the judgment for $6,070, in favor of the plaintiff against the appealing defendants should be reversed because of the error of the court in sustaining the demurrer filed to the writing (whatever it may be styled) relying on a noncompliance by plaintiff with the provisions of section 571, supra, of the Statutes. Before entering into a discussion of the merits of that contention, in the light of the facts appearing in the record, we deem it important to say that $2,070 of the $6,070, for which plaintiff obtained judgment, was represented by notes payable to plaintiff at its office in Atlanta, Ga., and the remaining $4,000, for which it obtained the judgment appealed from, arose out of a written agreement whereby appellants agreed to pay plaintiff the sum of $5,000, the amount which it was compelled to pay the Citizens' Gas Company of Indianapolis, Ind., because of a failure of defendants to ship to the latter company 300 cars of coal purchased by plaintiff of defendants with the agreement and understanding, as appears in the petition, that it was to be shipped to the gas company at Indianapolis, Ind., in fulfillment of a contract made by plaintiff with the consignee, and which agreement defendants did not fully comply with, but shipped only a small number of cars to the Indianapolis corporation, for each of which it received credit on its $5,000 obligation to plaintiff. The other $66,420, for which judgment was sought in the petition, represented alleged damages claimed to have been sustained by plaintiff on account of the breach of a contract by defendants to furnish to it 400 cars of coal, as per prior contract with it, 300 of which...