Richardson v. Louisville & N.R. Co.
| Decision Date | 24 September 1908 |
| Citation | 112 S.W. 582,129 Ky. 449 |
| Parties | RICHARDSON v. LOUISVILLE & N. R. CO. |
| Court | Kentucky Court of Appeals |
G. E Lilly, for appellant.
Fred P Caldwell, Benjamin D. Warfield, and John T. Shelby, for appellee.
In the petition for rehearing it is suggested that the court in the opinion made no reference to the question raised by the appellee in the lower court, and urged by it in the brief filed in its behalf in this court, that the Madison circuit court had no jurisdiction to hear and determine this case. The action was brought under section 73 of the Civil Code of Practice, providing that: "Excepting the actions mentioned in section 75, an action against a common carrier whether a corporation or not, upon a contract to carry property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the contract is made; or in which the carrier agrees to deliver the property. ***" It will thus be seen that the venue of the action is limited to either one of three counties. In the brief filed on the original hearing, as well as in the petition for rehearing, it is stated that the contract was entered into in Estill county, that the appellee's residence is in Jefferson county, and the property was to be delivered in Kenton county. Neither of these facts appear in the record. The jurisdictional question was not properly raised or made in the lower court. For this reason it was not noticed in the opinion, and would not now be considered, except for the insistence of counsel that the plea to the jurisdiction of the Madison circuit court should have been sustained.
Before entering its appearance in the Madison circuit court, the appellee filed the following special demurrer: "The defendant demurs specially to the plaintiff's petition herein on the ground that this court has not jurisdiction of this cause of action set forth in the plaintiff's petition and amended petition." It did not file any other pleading of record stating the reasons why the Madison circuit court did not have jurisdiction, or setting out that it resided in Jefferson county, or that the contract was made in Estill county, or that the property was to be delivered in Kenton county. The petition did not disclose the fact that the Madison circuit court was not the county in which the contract was made or the county in which the defendant resided. In the absence of a pleading...
To continue reading
Request your trial
-
Louisville & N.R. Co. v. Stewart
... ... court must be made as required by section 118, Civil Code, ... and, unless so made, the want of jurisdiction is waived ... Richardson v. L. & N., 129 Ky. 449, 112 S.W. 582, 33 ... Ky. Law Rep. 972. The defendant, having failed to challenge ... the jurisdiction of the Laurel ... ...
-
Barnes v. Louisville & N.R. Co.
...In support of this contention, appellant cites Richardson v. Louisville & N. Railroad Company, 129 Ky. 449, 111 S.W. 343, 112 S.W. 582, 33 Ky.Law Rep. 916, 972, in which we held that a shipper could waive the tort and on the contract for damage to property during transit and that the 15-yea......
-
Miles v. United Oil Co.
...Ky. 164, 173 S.W. 757; Puckett v. Jameson, Sheriff, 157 Ky. 172, 162 S.W. 801; Richardson v. L. & N. R. R. Co., 129 Ky. 449, 111 S.W. 343, 112 S.W. 582. It not claimed, nor can it be, that the present petition even remotely refers to any previous litigation between the parties, or that it s......
-
Barnes v. Louisville & N.R. Co.
...In support of this contention, appellant cites Richardson v. Louisville & N. Railroad Company, 129 Ky. 449, 111 S.W. 343, 112 S.W. 582, 33 Ky. Law Rep. 916, 972, in which we held that a shipper could waive the tort and sue on the contract for damage to property during transit and that the 1......