Poulos v. Stewart

• Decision Date: 31 October 1950
• Citation: 313 Ky. 812
• Parties: Poulos v. Stewart et al.
• Court: United States State Supreme Court — District of Kentucky

313 Ky. 812

Poulos v. Stewart et al.

Court of Appeals of Kentucky.

October 31, 1950.

Action by Andrew Poulos, trading and doing business under trade and style name of Gizmo Electric Company, against Denver Stewart and others, etc., to recover the cost of electrical equipment furnished to defendants and installed in drive-in theatre located on land in another county leased by defendants and to enforce a materialman's lien therefor upon building and improvements on such land. The Circuit Court, Pike County, E.D. Stephenson, J., entered a judgment sustaining a special demurrer to the petition and dismissing

the petition and plaintiff appealed. The Court of Appeals, Cammack, J., held that petition stated a cause of action of which court had jurisdiction for personal judgment against the defendants, but that insofar as it sought to enforce a lien upon realty in another county, it was subject to special demurrer for want of jurisdiction.

Judgment affirmed in part and reversed in part.

1. Pleading. — Special demurrer to petition on ground that it did not state facts sufficient to constitute a cause of action or to authorize court to take jurisdiction of the action was sufficient to question petition both as to whether it stated a cause of action and whether court had jurisdiction thereof.

2. Mechanics' Liens. — Petition stated a cause of action of which the court had jurisdiction for a personal judgment against defendant copartners who were residents of the county for the cost of electrical equipment furnished to defendants and installed in a drive-in theatre, though theatre was located in another county.

3. Mechanics' Liens. — Petition asserting a materialman's lien for cost of electrical equipment furnished to defendants and installed in drive-in theatre on land in another county leased by defendants against the building and improvements on such land and asking for sale of such property to satisfy lien indebtedness or appointment of a receiver sought to enforce a lien upon realty in another county and was subject to special demurrer for want of jurisdiction. Civ.Code Prac. sec. 62.

V.R. Bentley, for appellant.

J.E. Sanders, for appellees.

Before E.D. Stephenson, Judge.

JUDGE CAMMACK.

Affirming in part, reversing in part.

This appeal is from a judgment sustaining a special demurrer to the petition of the appellant and dismissing his petition. We think the special demurrer was properly sustained, but that it was error to dismiss the petition.

The action was brought in Pike County against Denver Stewart, George Hereford and Jack Abshire, trading and doing business as partners in the New Drive-In Theatre. The defendants are residents of Pike County, but the Drive-In Theatre is located in Floyd County....