Hughes v. Shehan

• Decision Date: 28 October 1921
• Citation: 234 S.W. 285,192 Ky. 619
• Parties: HUGHES ET AL. v. SHEHAN ET AL.
• Court: Kentucky Court of Appeals

234 S.W. 285

192 Ky. 619

HUGHES ET AL. v. SHEHAN ET AL.

Court of Appeals of Kentucky.

October 28, 1921

Appeal from Circuit Court, Nelson County.

Proceedings by Susan E. Shehan and others against J. L. Hughes and others to condemn a passway. Judgment in the county court for plaintiffs was affirmed in circuit court, and defendants appeal. Affirmed.

Nat W Halstead and Frank Daugherty, both of Bardstown, for appellants.

John S Kelley and J. Smith Barlow, both of Bardstown, for appellees.

CLARKE J.

This proceeding was instituted in the Nelson county court on January 26, 1920, by appellees to condemn a passway from a farm owned by them over the lands of the appellants to a public road, to enable appellees and persons residing upon their farm to attend elections, courts, church, etc., as is provided may be done by law.

From the judgment in the county court in favor of appellees appellants prosecuted an appeal to the Nelson circuit court and, from a like judgment there, they have appealed to this court.

It is first insisted for reversal that a special demurrer to the jurisdiction of the court filed in the county court and renewed in the circuit court was erroneously overruled, that the right to question the jurisdiction of the court was not waived, and that the court never acquired jurisdiction of appellants.

There is quite a contention by counsel as to whether the act of June 23, 1893, as amended in 1904, and being sections 4348-4356, inclusive, in the 1909 edition of the statutes or the act passed at the 1918 session of the Legislature, and being chapter 99 of the acts of that session, was in force at the time of the institution of this action and during its progress throughout the lower courts. Both acts required 10 days' previous notice of the intention to apply for a passway, and this was given here. The older act in subsection 2 of section 4348 of the 1909 edition of the statutes required in addition that-- "Upon the filing of the report of the commissioners, the clerk of the county court shall issue process against the owners to show cause why the said report should not be confirmed, and shall make such orders as to nonresidents and persons under disability as are required by the Civil Code of Practice in actions against them in the circuit court."

This provision is omitted from the act of 1918, but has been restored by a new and independent act enacted at the 1920 session of the Legislature (chapter 124) and which deals comprehensively with the subject of passways. No process as required by the acts of 1893 and 1920 was served upon appellants, and, without deciding which of the three laws was applicable when this proceeding was instituted and tried, we shall assume that service of summons was necessary to give the court jurisdiction of the persons of appellants. The petition to which the special demurrer was interposed did not disclose the fact that no summons had been issued or served upon appellants. As this court has pointed out in several cases, the office of a special demurrer is limited, by section 92 of the Civil Code, to objections which appear upon the face of the pleading to which it is directed. Richardson v. L. & N. R. R. Co. 129 Ky. 449, 111 S.W. 343, 112 S.W. 582, 33 Ky. Law Rep. 916, 972; Gillen v. I. C. R. Co., 137 Ky. 375, 125 S.W. 1047; L. & N. R. R. Co. v. Mitchell, 162 Ky. 253, 172 S.W. 527; Fentzka's Adm'r v. Warwick Const. Co., 162 Ky. 580, 172 S.W. 1060; L. & N. R. R. Co. v. Stewart, 163 Ky. 164, 173 S.W. 757. As said in L. & N. R. R. Co. v. Mitchell, supra:

"A special demurrer is an objection to a pleading which shows that the court had no jurisdiction of the defendant, or of the subject-matter of the action," and such "a demurrer cannot enlarge the allegations of a petition by reciting extraneous facts."

It would therefore seem clear that the court did not err in overruling the special demurrer here, although it alleged the failure to serve process upon defendants.

But counsel for appellants contend most earnestly that by reason of the provisions of section 118 of the Code it is permissible and proper to state in the special demurrer such extraneous facts as are necessary to show a want of jurisdiction. This contention is based upon the fact that section 118 of the Code 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."

The trouble with the contention is that the objection was not made "by answer or other proper pleading," since it was only attempted to be made in the special demurrer, which, as we have already seen, is not a "proper pleading" for making such objections. It therefore results that the court did not err in overruling the demurrer, and, as appellants did not make the question in the other pleadings which they filed to the merits, they entered their appearance and waived the question of jurisdiction.

The next objection urged by appellants is that the court committed prejudicial error in the order appointing commissioners by directing them to view and report upon only the...