Louisville Home Telephone Co. v. Beeler's Adm'r

• Decision Date: 17 April 1907
• Citation: 125 Ky. 366,101 S.W. 397
• Parties: LOUISVILLE HOME TELEPHONE CO. ET AL. v. BEELER'S ADM'R.
• Court: Kentucky Court of Appeals

101 S.W. 397

125 Ky. 366

LOUISVILLE HOME TELEPHONE CO. ET AL. v. BEELER'S ADM'R.

Court of Appeals of Kentucky.

April 17, 1907

Appeal from Circuit Court, Bullitt County.

"To be officially reported."

Action by Maggie Beeler, administratrix of E. C. Beeler, against the Louisville Home Telephone Company and another. From a judgment against the Louisville Home Telephone Company, it appeals. Reversed and remanded.

Helm Bruce and Helm, Bruce & Helm, for appellant.

Bennett H. Young, Nat W. Halstead, Ben Chapeze, and J. F. Combs, for appellee.

CLAY Special Judge.

This action was instituted by Maggie Beeler, administratrix of her deceased husband, E. C. Beeler, against the Cumberland Telephone & Telegraph Company and the Louisville Home Telephone Company, to recover damages for the death of her husband, which occurred in Louisville Jefferson county, Ky. and which is alleged to have resulted from the joint negligence of the two companies. In addition to the allegations of negligence, the petition states that decedent was a resident of Bullitt county, and that each of the defendants was a common carrier, and passed into Bullitt county. Summons was served upon the Home Telephone Company by delivering a true copy thereof to its president, and also by delivering copies to parties who were stated in the return to be agents of said company, residing in Bullitt county. Summons was served upon the Cumberland Telephone & Telegraph Company by delivering copies to the local agents of the company. Each of the defendants filed a special demurrer and a plea to the jurisdiction of the court. Plaintiff then filed a demurrer and a reply to each of the pleas. Before the question of jurisdiction was heard, the defendant Louisville Home Telephone Company filed an answer in three paragraphs. In the first paragraph defendant raised the question of jurisdiction by setting forth that its residence was in Jefferson county, that it did not have any office or agent in Bullitt county, and that it did not pass into said county. In the second and third paragraphs defendant, without waiving its objection to the jurisdiction of the court, pleaded to the merits of the case. Later on, but before the question of jurisdiction was passed upon, the Cumberland Telephone &amp Telegraph Company, without waiving its plea to the jurisdiction, filed an answer to the merits of the case. Plaintiff thereupon filed a reply to each answer. The question of jurisdiction was then heard by the court, and a judgment was entered overruling the plea of the Cumberland Company, and adjudging that the court had jurisdiction. By the same order the plea of the defendant, Home Company, was held to be good, and the action as to it was dismissed. The plaintiff thereupon filed motion and grounds for a new trial relying particularly upon the allegation that the Home Company, by pleading to the merits of the case, had entered its appearance and submitted itself to the jurisdiction of the court. Upon reconsideration of the question involved, the court sustained the motion, and entered an order setting aside the aforesaid judgment, in so far as it held the plea of the Home Company to the jurisdiction of the court to be good, and also overruling both its demurrers and plea to the jurisdiction. To this judgment the Home Company excepted, and prayed an appeal to the Court of Appeals, which was granted. Subsequently a jury was impaneled and the case tried on its merits. At the conclusion of plaintiff's testimony, and also at the conclusion of all the testimony, each of the defendants filed its written motion, and moved the court to instruct the jury to find for it. These motions were overruled, and an exception saved in each instance. The case was then submitted to the jury, which rendered the following verdict, signed by 10 of the jurors: "We, the jury, find for the plaintiff in the sum of $4,000 against the Louisville Home Telephone Company." Immediately upon the return of the verdict, and before the entry of the judgment, the Home Company moved the court to enter a judgment dismissing the petition as to it, on the ground that the jury having failed to find a verdict against the Cumberland Telephone & Telegraph Company, the court had no jurisdiction to enter judgment against the Home Company. Judgment was then entered, overruling the motions of the Home Company, and adjudging that plaintiff recover of the Home Company $4,000, and costs. The Home Company then filed motion and grounds for a new trial, and an order was entered overruling the same, and granting an appeal to this court.

At the outset there is presented for our consideration the question, did the Bullitt circuit court have jurisdiction of the appellant, Louisville Home Telephone Company? In passing upon this point, we shall first discuss the question whether or not appellant entered its appearance by filing its answer both to the jurisdiction and to the merits. If the answer of the appellant did not enter its appearance, then we shall have to determine whether or not jurisdiction was acquired in any other way.

Among the cases relied upon by appellee is the case of City of Covington v. Limerick, 107 Ky. 680, 39 S.W. 836, in which the court, after holding that the circuit court undoubtedly had jurisdiction over the person of the defendant, added the following: "But, in addition to the plea of jurisdiction, the answer of the defendant goes to the merits of the controversy, and is a waiver of any objection to the jurisdiction over the person of the defendant. This is the common-law doctrine, and was held to be the law in this state in the case of Baker v. L. & N. R. R., 4 Bush, 623."

In the case of Baker v. L. & N. R. R., 4 Bush, 623, we find, however, that the defendant first answered to the merits without suggesting any objection to the jurisdiction, and trial was then had, resulting in a verdict which was set aside and a new trial ordered. Next came a hung jury. About a year and a half thereafter the defendant attempted to plead to the jurisdiction of the court. The court very properly held that its appearance had been entered long before.

In the case of Guenther & Bros. v. American Steel Hoop Company, 116 Ky. 580, 76 S.W. 419, the question involved was the constructtion and validity of subsection 6 of section 51 of the Code, authorizing service upon the agent of a nonresident doing business in this state. In that case the motion to quash the process was overruled. The defendant did not follow the practice adopted by appellant in the case under consideration. He did not file an answer as provided by section 118 of the Civil Code; but, along with the denial of other facts, simply put in issue the allegation of the petition that he was a nonresident of the state. Under the circumstances this court held that, having gone into the merits of the case as he did by his answer, he had entered his appearance to the action.

Likewise in the case of Brand v. Brand, 116 Ky. 791, 76 S.W. 868, 63 L. R. A. 206, the question of jurisdiction was not raised by answer as authorized by section 118, but by special demurrer. Thereafter the defendant answered to the merits of the controversy. This court held that the trial court necessarily had jurisdiction of him.

The superior court case of N. N. & M. V. Company v. Thomas, 29 S.W. 437, 16 Ky. Law Rep. 706, was one of alleged improper service of summons. A motion was first made by the defendant to quash the return on the summons; then, without having that motion passed on at all, the defendant filed an answer, in which it made no objection to the jurisdiction of the court, but pleaded to the merits. The superior court held under such circumstances that the motion was waived by the filing of an answer. The question of jurisdiction was not raised, however, by pleadings, but by a mere motion to quash.

Counsel for appellee relies also upon the case of C. O. & S.W. Ry. Co. v. Heath, 87 Ky. 651, 9 S.W. 832. In that case defendant first filed an answer, pleading only to the jurisdiction, and a demurrer thereto was sustained; then the defendant pleaded to the merits. The case did not come to trial on an issue of fact raised by the answer, but the question of jurisdiction was raised and decided by a demurrer. The court then required the defendant to plead to the merits. The court pointed out very plainly and in very strong language that there had been no waiver in that case, because the party had not attempted to plead to the merits at all until after its plea to the jurisdiction had been overruled and it had excepted. But the court did not hold that the form of pleading adopted in the case at bar would not have been allowable.

In favor of the view that a defendant who files an answer to the jurisdiction, and in the same answer, without waiving the question of jurisdiction, pleads to the merits, does not thereby enter his appearance, we find the following cases:

First, the case of Meguiar v. Rudy, 7 Bush, 432, in which a demurrer, as in the case at bar, to the jurisdiction of the court was first filed, but overruled because the defect did not appear on the face of the petition. The defendant then filed an answer in which he first pleaded to the jurisdiction of the court. and then pleaded to the merits, including a counterclaim. The circuit court tried the case on all the issues raised, and came to the conclusion that it had no jurisdiction over the person of defendant. Judgment was then entered in his favor, and, upon appeal to this court, the judgment was affirmed.

In the case of L. & N. R. R. v. Munford, 68 S.W. 635, 24 Ky. Law Rep. 417, the court says: "The first paragraph of the answer of the defendant is a plea in abatement. * * * The second paragraph, without waiving the first, may be treated as a...