McDowell v. Chesapeake, O. & S.W.R. Co.

• Decision Date: 04 September 1890
• Citation: 14 S.W. 338,90 Ky. 346
• Parties: MCDOWELL v. CHESAPEAKE, O. & S.W. R. CO.
• Court: Kentucky Court of Appeals

14 S.W. 338

90 Ky. 346

MCDOWELL v. CHESAPEAKE, O. & S.W. R. CO.

Court of Appeals of Kentucky.

September 4, 1890

Appeal from circuit court, Hardin county.

"To be officially reported."

E. D Walker, R. C. Davis, and Matt O'Doherty, for appellant.

J. P Hobson and P. H. Darby, for appellee.

PRYOR J.

This case is here for the second time. The court below sustained a general demurrer to the petition, holding that the facts alleged did not authorize a recovery. On the appeal the judgment below was reversed and remanded for a trial on the merits. 5 S.W. 413; 8 S.W. 871. When called for trial, the defendant filed an answer alleging a want of jurisdiction over the person of the defendant, and on the hearing the action was dismissed on that ground. The only question we deem necessary to consider on this appeal is, has the defendant below, by filing its general demurrer and having a decision on the merits, waived its right to raise the question as to the jurisdiction of the court? The record shows that on the first hearing the appellee (defendant) filed a special and general demurrer; the first raising the question as to the jurisdiction, and the second denying the right of recovery upon the facts alleged. The court overruled the demurrer as to the jurisdiction, sustained the general demurrer, and dismissed the action from which the first appeal was taken. No question was raised in this court as to the jurisdiction of the lower court over the person of the defendant, and none could have been made, as the petition failed to disclose any fact upon which the jurisdictional question could have been raised. The court below therefore properly overruled the special demurrer, and, this court holding that the facts stated in the petition constituted a cause of action, a reversal was had on that ground. On the return of the case the answer of the defendant was filed, alleging a want of jurisdiction, because the defendant had been summoned in a county other than the residence of its chief officer or agent, the tort complained of having been inflicted in the county of McCracken, and the action instituted in Hardin county. These facts having been admitted, the action was dismissed. The defendant is a common carrier, and it is insisted by the appellant (plaintiff) that under section 73 Civil Code, the circuit court of any county through which the carrier passes has jurisdiction over it, for the recovery on account of a personal injury, although its chief office or place of business may be in some other county. It is not necessary to place any construction on the various sections of the Code on this subject, as it was too late to plead to the jurisdiction after a hearing on the merits. It is true that a party may file a special and general demurrer at the same time and in the same pleading, but he will not be...