Ohio River Contract Co. v. Gordon

CourtCourt of Appeals of Kentucky
Writing for the CourtHURT, J.
Citation170 Ky. 412,186 S.W. 178
Decision Date26 May 1916
PartiesOHIO RIVER CONTRACT CO. v. GORDON, JUDGE.

186 S.W. 178

170 Ky. 412

OHIO RIVER CONTRACT CO.
v.
GORDON, JUDGE.

Court of Appeals of Kentucky.

May 26, 1916


Petition by the Ohio River Contract Company for a writ of prohibition against Thomas R. Gordon, Judge. Writ denied. [186 S.W. 179]

J. P. Hobson & Son, of Frankfort, and Richards & Harris, of Louisville, for petitioner.

O'Doherty & Yonts, of Louisville, for respondent.

HURT, J.

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 maintains 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 & Indiana Terminal Railway Company's lands, where the débris 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 Kentucky 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 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 employé of the petitioner, instituted an action in the Jefferson circuit court against the petitioner and one Fred Swisher, an employé 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 pleaded facts which, as they contend, show that the courts of Jefferson county had neither jurisdiction [186 S.W. 180] of their persons nor of the cause of action, and then, without waiving their pleas to the jurisdiction, pleaded 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 its relating to the jurisdiction of that court. This motion was sustained, and the issue tried and decided adversely to 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...

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8 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...in Weaver evolved into the "great injustice and irreparable injury" requirement of our present rule. Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916) (A writ will issue "only as a matter of necessity to shield from injustice, against which there [is] no other adequat......
  • Clapp v. Sandidge, Special Judge
    • United States
    • United States State Supreme Court (Kentucky)
    • September 24, 1929
    ...v. Gardner, 222 Ky. Page 599 487, 1 S.W. (2d) 537; Litteral v. Woods, 223 Ky. 582, 4 S.W. (2d) 395; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Rush v. Childers, 209 Ky. 119, 272 S.W. 404; Com. v. Carmichael, 192 Ky. 171, 232 S. W. 644. The reported cases sufficiently eluc......
  • Peterson v. Shake, No. 2002-SC-0695-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 18, 2003
    ...422-3 (footnote omitted and emphasis added). 8. Peterson v. Shake, Ky., 120 S.W.3d 707, 710 (2003). 9. Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916), aff'd 244 U.S. 68, 37 S.Ct. 599, 61 L.Ed. 997 10. Flynt v. Commonwealth, supra note 6 at 422 (citing Kentucky Labo......
  • Ohio River Contract Co. v. Gordon
    • United States
    • Court of Appeals of Kentucky
    • November 24, 1916
    ...aside so much of the order allowing the writ of error as provided that it should operate as a supersedeas. Motions overruled. See, also, 186 S.W. 178. [189 S.W. 452] J. P. Hobson & Son, of Frankfort, and Richards & Harris, of Louisville, for petitioner. Matt O'Doherty and O'Doherty & Yonts,......
  • Request a trial to view additional results
8 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...in Weaver evolved into the "great injustice and irreparable injury" requirement of our present rule. Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916) (A writ will issue "only as a matter of necessity to shield from injustice, against which there [is] no other adequat......
  • Clapp v. Sandidge, Special Judge
    • United States
    • United States State Supreme Court (Kentucky)
    • September 24, 1929
    ...v. Gardner, 222 Ky. Page 599 487, 1 S.W. (2d) 537; Litteral v. Woods, 223 Ky. 582, 4 S.W. (2d) 395; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Rush v. Childers, 209 Ky. 119, 272 S.W. 404; Com. v. Carmichael, 192 Ky. 171, 232 S. W. 644. The reported cases sufficiently eluc......
  • Peterson v. Shake, No. 2002-SC-0695-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 18, 2003
    ...422-3 (footnote omitted and emphasis added). 8. Peterson v. Shake, Ky., 120 S.W.3d 707, 710 (2003). 9. Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916), aff'd 244 U.S. 68, 37 S.Ct. 599, 61 L.Ed. 997 10. Flynt v. Commonwealth, supra note 6 at 422 (citing Kentucky Labo......
  • Ohio River Contract Co. v. Gordon
    • United States
    • Court of Appeals of Kentucky
    • November 24, 1916
    ...aside so much of the order allowing the writ of error as provided that it should operate as a supersedeas. Motions overruled. See, also, 186 S.W. 178. [189 S.W. 452] J. P. Hobson & Son, of Frankfort, and Richards & Harris, of Louisville, for petitioner. Matt O'Doherty and O'Doherty & Yonts,......
  • Request a trial to view additional results

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