Nelson, Morris & Co. v. E. Rehkopf & Sons

• Decision Date: 17 June 1903
• Citation: 75 S.W. 203
• Parties: NELSON, MORRIS & CO. v. E. REHKOPF & SONS.
• Court: Kentucky Court of Appeals

75 S.W. 203

NELSON, MORRIS & CO. v. E. REHKOPF & SONS.

Court of Appeals of Kentucky.

June 17, 1903

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by E. Rehkopf & Sons against Nelson, Morris & Co. From a judgment for plaintiffs, defendants appeal. Affirmed.

W. M Reed, for appellants.

Bloomfield & Crice, for appellees.

HOBSON J.

On August 11, 1899, E. K. Rehkopf & Sons filed their petition ordinary in the McCracken circuit court against Nelson Morris & Co., praying a personal judgment for $213.28 on account of certain hides sold them by the defendants. It was alleged in the petition that the defendants were incorporated and nonresident of Kentucky, and that the transaction sued on was had through Bransford Clark, of Paducah, Ky. who was their agent. A summons was issued on the petition, which was returned as follows: "Executed August 11, 1899, on Nelson, Morris & Co. by delivering to their agent Bransford Clark a copy of the within summons. A. H. Rogers, S. M. C., by Gus Rogers, D S." No defense having been made to the action, the court entered a personal judgment against the defendants on September 6, 1899. The plaintiffs, their execution having been returned "No property found," instituted this action on October 4, 1901, and took out an attachment, which was levied on a fund belonging to the defendant amounting to $181. They then answered, and made their answer a cross-petition, charging that Bransford Clark was not their agent, and that the judgment entered in the former action was void. The plaintiffs then amended their petition, and set out all the facts constituting their cause of action in the original suit. The defendants not having answered the amendment, but ignoring it, the case was submitted, and the court entered a judgment subjecting the fund to the payment of the debt, and refusing to set aside the former personal judgment.

The original action was brought under subsection 6 of section 51 of the Civil Code of Practice: "In actions against an individual residing in another state, or a partnership, association, or joint stock company, the members of which reside in another state, engaged in business in this state, the summons may be served on the manager, or agent of, or person in charge of, such business in this state, in the county where the business is carried on, or in the county where the cause of action occurred."

In Carpenter...