Ohio River Contract Co. v. Gordon
| Decision Date | 26 May 1916 |
| Citation | 170 Ky. 412 |
| Parties | Ohio River Contract Company v. Gordon, Judge. |
| Court | Kentucky Court of Appeals |
J. P. HOBSON & SON and RICHARDS & HARRIS for petitioner.
O'DOHERTY & YONTS for respondent.
The Ohio River Contract Company, whom we will call the petitioner, is a corporation which was organized by and exists under the laws of the state of Indiana, and as such is qualified to sue and be sued in its corporate name. It maintained its principal place of business and all of its officers reside in the state of Indiana. Under a contract with the United States government, it was engaged in the work incident to the construction of a canal and a lock and dam upon a certain piece of land, which had been acquired by the Federal government by purchase or by condemnation, and with the consent of the legislative branch of the government of the state of Kentucky. The land is situated upon or near the south bank of the Ohio river, in Jefferson county, and it is to be inferred from the record that it was acquired by the Federal government for the purpose of widening the canal at that point, and the erection of a lock and dam. The record does not disclose the extent of the lands thus acquired. The machinery used and all the operations of the petitioner were conducted upon this piece of land except that it constructed and maintained a tramway, which extended over the boundaries of the piece of land and onto lands which are the property of Kentucky and Indiana Terminal Railway Company, and which are situated in Jefferson county and the tramway was used in removing, by means of it, the cars, which were loaded with dirt and stones obtained by the digging of the canal, from the lands of the Federal government to the lands of the Kentucky and Indiana Terminal Railway Company, where the debris was dumped. When the petitioner began operations under the contract for the work mentioned, it made out and filed in the office of the Secretary of State of Kentucky, a statement in which it designated C. H. Wright as its agent, upon whom process could be served in the event of any one instituting litigation against it in the state of Kentucky, as is required by section 571, of the Ky. Statutes, of all corporations which engage in business in this state. The statement was to the effect, that the place of business of the Ohio River Contract Company (a corporation of the state of Indiana), in Kentucky, was at Lock No. 41, 31st street and the river, Government Reservation, Louisville, Ky., and that Clarence H. Wright, of Louisville, Ky., was its agent thereat, upon whom process might be served in any suit which might be brought against it within the state of Kentucky. One Haines, an employee of the petitioner, instituted an action in the Jefferson circuit court against the petitioner and one Fred Swisher, an employee of the petitioner, in which he alleged, that he had received a personal injury, which was caused by the negligence of petitioner and Swisher, and sought a recovery in damages against them. A summons was issued against plaintiff and Swisher, directed to the sheriff of Jefferson county. It was served upon Wright, as the agent of petitioner, and upon Swisher, but the service upon each of them was made upon the piece of land which had been acquired by the Federal government.
The petitioner filed its petition, alleging that it was an inhabitant of the state of Indiana and that Haines and Swisher were citizens of the state of Kentucky, and that Swisher was fraudulently joined with it as a defendant in order to give the state courts jurisdiction of the cause of action, and prayed a removal of the cause into the Federal court for the Western District of Kentucky. The motion to remove the action into the Federal court was overruled. The petitioner then caused a transcript of the record to be filed in the Federal court, when, upon motion of Haines, that court remanded the case to the Jefferson circuit court. The petitioner then entered a motion in the latter court to quash the return upon the summons which had been served upon Wright as its agent, and Swisher entered a like motion to quash the return as to him. While these motions were pending, an alias summons was issued and served upon Wright, as petitioner's agent, at his home in Louisville, and not upon the land which had been acquired by the Federal government. Many affidavits were filed as evidence upon the motions to quash the return upon the summons, and the motions were overruled. Then the petitioner and Swisher, without waiving their objections to the service of the summons upon them, filed special demurrers to the jurisdiction of the court of their persons, and, also, of the subject matter of the action. These demurrers were overruled. They then filed answers, in which, by the first paragraphs, they plead facts, which, as they contend, show that the courts of Jefferson county had neither jurisdiction of their persons nor of the cause of action, and then without waiving their pleas to the jurisdiction, plead to the merits of the action.
Haines then demurred to the paragraphs of the answers which plead the want of jurisdiction of the court. Before these demurrers had been disposed of the petitioner filed a petition in this court, by which it sought a writ of prohibition against the respondent, restraining him as a judge of the Jefferson circuit court, to whose division the action had been assigned, from proceeding any further in the disposition of the case. Thereafter the petitioner dismissed its petition for a writ of prohibition, in this court, and returning to the Jefferson circuit court, moved the court to first hear and decide the issue raised by it relating to the jurisdiction of that court. This motion was sustained and the issue tried and decided adversely to the petitioner and Swisher.
It should be stated that when the motions to quash the return upon the summons, as well as when the special demurrers were filed, the petitioner entered its appearance specially for those purposes and no others, and caused the record to so state.
After the circuit court decided that it had jurisdiction of both the persons of the petitioner and Swisher and the cause of action, which Haines was maintaining against them, the petitioner then instituted the present action in this court. It seeks a writ of prohibition against the respondent, as the judge of the Jefferson circuit court, common pleas branch, second division, to restrain him from proceeding any further with or making any further order in the case of Haines against petitioner, in the Jefferson circuit court, upon the alleged ground that such court has not jurisdiction of the person of petitioner nor the cause of action attempted to be stated against it.
Its contention is that it is a non-resident corporation and has no agent nor place of business in the state of Kentucky, and is not nor ever has engaged in doing business in the state of Kentucky, and therefore the courts of Kentucky have not and can not acquire jurisdiction of it, so as to authorize a personal judgment against it; that the court over which respondent presides could only acquire jurisdiction of its person by a valid service of summons upon it or by a waiver of its right to object, and that a valid service of summons can not be had upon it, unless it was engaged in doing business in the state; that the service of the summons upon Wright was void, because it was done upon the lands of the Federal government, where the processes of the state courts cannot run, and that the service of the alias summons was void, because it was not doing business in the state of Kentucky, and that Wright was not its agent for any purpose in Kentucky, and was without the jurisdiction where he was agent, except upon his own business, and hence it had never been served with a summons, nor had it done any act which amounts to a waiver of its right to object to the alleged jurisdiction of the Jefferson circuit court.
Its further contention is that it is not a citizen of Kentucky; that the place at which it was engaged in business and where Haines received his injury is not in the state of Kentucky; that it is a place which had been acquired by the Federal government by purchase or condemnation, with the consent of the legislature of Kentucky, in accordance with article I., sec. 8, subsection 17, of the Federal constitution, and that the jurisdiction of the Federal government is exclusive thereon, and the jurisdiction of the courts of Kentucky has been removed and destroyed upon such territory, and hence the court of respondent has no jurisdiction of the subject matter of the action. This court, by the petition for the writ of prohibition, is called upon to interfere and prohibit the Jefferson circuit court from trying the action and from making any order or rendering any judgment in it. The petitioner claims that to permit the respondent to proceed any further with the hearing of or determination of the cause would be to deny it the due process of law, which is guaranteed to it by the Fourteenth Amendment to the Federal constitution.
To determine whether the prayer of the petition should be considered, it is necessary to take into consideration the jurisdiction of this court, and its power and authority to interfere with the subordinate courts in the exercise of their jurisdiction and the course of the administration of justice in them. The jurisdiction of this court is fixed by the provisions of section 110,...
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