Leatherman v. Times Co.

• Decision Date: 28 February 1889
• Citation: 88 Ky. 291,11 S.W. 12
• Parties: LEATHERMAN v. TIMES Co. et al.
• Court: Kentucky Court of Appeals

11 S.W. 12

88 Ky. 291

LEATHERMAN v. TIMES Co. et al.

Court of Appeals of Kentucky.

February 28, 1889

Appeal from Louisville law and equity court; W. O. HARRIS, Judge.

J. M Chatterson and Baker, Kinney & Kinney, for appellant.

F Hagan, for appellees.

BENNETT J.

The appellant, in November, 1884, commenced action against the Times Company as an incorporated institution for the purpose of printing and publishing a newspaper, called the "Louisville Times," etc., and Dr. Keller. The appellant sought to recover damages for an alleged libel published in said paper upon him. The appellant dismissed the action as to Dr. Keller. An answer was filed in the name of the Times Company, without disclosing whether or not it was an incorporated institution, or merely a private concern alleging the truth of the libelous matter charged. The pleadings having been made up for more than a year upon the idea that the Times Company was an incorporated institution the said company filed an amended answer, disclosing the fact that it was not incorporated. Thereupon the appellant filed an amended petition, setting up the fact that his allegation that the Times Company was a corporation was a mistake, and that the Times was a private concern, owned and published by the appellees Haldeman and Logan as partners. These two persons were summoned to answer this amended petition. They answered, among other things, that, more than one year having elapsed since the publication complained of, the action against them was barred by the statute of limitations of one year. The lower court deeming the reply to this plea insufficient, sustained a demurrer to it, and the appellant declining to plead further his action was dismissed.

The sole question is, was the demurrer properly sustained? The appellant, in support of his contention that the demurrer was improperly sustained, relies upon the case of Heckman's Adm'r v. Railroad Co., 4 S.W. Rep. 342, (opinion by Chief Justice LEWIS.) In that case the administrator by mistake sued the Louisville, Cincinnati &amp Lexington Railway Company for an injury to his intestate resulting in his death. An answer was filed, apparently in the name of said company. It was afterwards discovered that the Louisville & Nashville Railroad Company operated the road, and did the injury complained of, instead of the Louisville, Cincinnati & Lexington Railway Company, and that the Louisville & Nashville Railroad...