Rush v. Childers

• Decision Date: 19 May 1925
• Citation: 209 Ky. 119,272 S.W. 404
• Parties: RUSH v. CHILDERS, CIRCUIT JUDGE, ET AL.
• Court: Kentucky Court of Appeals

272 S.W. 404

209 Ky. 119

RUSH v. CHILDERS, CIRCUIT JUDGE, ET AL.

Court of Appeals of Kentucky.

May 19, 1925

Application for writ of prohibition by H. G. Rush against J. E. Childers Presiding Judge of the Pike Circuit Court, and another. Writ denied.

Harman Francis & Hobson, of Pikeville, for plaintiff.

J. C Cantrell, of Stone, for defendants.

SETTLE C.J.

Rush Williamson, a citizen of Pike county, this state, instituted in the circuit court of that county an action against the H. G. Rush Stave Company and H. G. Rush, seeking the recovery of damages for personal injuries claimed to have been sustained by him while in their employ and through their wrongful acts and negligence. It was, in substance, alleged in the petition that the H. G. Rush Stave Company was and is a partnership composed of H. G. Rush and others to Williamson unknown, and that, as such partnership, the H. G. Rush Company and H. G. Rush have been and are engaged in the business of manufacturing staves and lumber in Pike county in the firm or partnership name of H. G. Rush Stave Company; that, when employed by the H. G. Rush Stave Company and H. G. Rush to labor in their manufacturing plant, and at the time of receiving his injuries, Williamson was an infant under 16 years of age wholly unskilled and inexperienced in the work of manufacturing staves and lumber, all of which was known to the H. G. Rush Stave Company, H. G. Rush, and T. J. Kinser, their agent and manager of their mills, stave and lumber business; that, on account of his infancy, his employment by them was unlawful, and that, by reason thereof, and of their negligence and that of their agent and manager, Kinser, in requiring of him dangerous work in the plant, and failing to provide him a reasonably safe place in which to perform it, his injuries were received.

It appears from the averments of the petition and the date of the filing thereof that, although Williamson's injuries were received in the year 1916, the action to recover the damages claimed therefor was brought by him within the year immediately following his arrival at the age of 21 years.

H. G. Rush was at the time of the institution of the action by Williamson, and is now, a resident of the state of Pennsylvania, and the summons that was issued on the petition against the H. G. Rush Stave Company and H. G. Rush was executed by the sheriff of Pike county, as shown by his return, upon the H. G. Rush Stave Company and H. G. Rush, by delivering a true copy thereof to T. J. Kinser as their agent and the manager in charge of their property and business in Pike county, Ky. Following the execution and return of the summons by the sheriff, H. G. Rush appeared by attorney in the Pike circuit court and entered his appearance for the sole purpose expressed in the following motion:

"The defendant, H. G. Rush, entering his appearance for the purpose of this motion alone, moves the court to quash the return on the summons herein, and for cause says that the same is not sufficient to show any service of summons on the defendant within the meaning of the due process clause of the Constitution of the United States. This defendant being a resident of Pennsylvania, and having no agent within this state for the service of process, on this motion he prays the judgment of the court."

The above motion was supported by the affidavit of his attorney, substantially confirming the statements contained in the motion to quash the return on the summons, and stating in addition that H. G. Rush was in the year 1916, and now is, the sole and individual owner of the manufacturing plant and stave and lumber business conducted in Pike county, Ky. in the name of H. G. Rush Stave Company.

The motion to quash the return on the summons was overruled by the circuit court, to which ruling H. G. Rush by counsel duly entered of record an exception. Rush thereupon filed an answer to the petition of Williamson, which, without waiving his objection to the action of the court in overruling his motion to quash the return on the summons, or his right to insist upon his objection to its jurisdiction, traversed the averments of the petition, alleged Rush's residence and citizenship to be in Pennsylvania, his sole ownership of the property and business controlled and conducted in Pike county in the name of H. G. Rush Stave Company, and further that T. J. Kinser was not, and had never been appointed, his agent in the state of Kentucky, upon whom service of process might be had.

After the filing of the answer of H. G. Rush in the action pending in the Pike circuit court, the latter filed a pleading in this court (the Kentucky Court of Appeals), which in form and substance may be denominated both a petition and motion, constituting an original action or proceeding, in which he (H. G. Rush) is named as plaintiff, and J. E. Childers, judge of the Pike circuit court, and Rush Williamson, plaintiff in the action in the latter court, are made defendants; its object being to obtain of the Court of Appeals a writ of prohibition to prevent the judge of the Pike circuit court from taking jurisdiction or proceeding with the trial of the action for damages pending in that court. The defendants filed a general demurrer to the petition and motion, which presents for our decision the vital question to be determined.

It is conceded by counsel for the plaintiff, H. G. Rush, that the summons issued in the action pending in the Pike circuit court, wherein Rush Williamson is plaintiff and the H. G. Rush Stave Company and H. G. Rush defendants, was executed as authorized by section 51, subsec. 6, Civil Code, but insisted by counsel that, notwithstanding such authorization of its service, neither jurisdiction of the action, nor of the persons of the defendants therein, was thereby acquired by the Pike circuit court, or the judge thereof. It being his contention that subsection 6, § 51, of the Code, supra, is unconstitutional and void, because violative of section 51 of the Constitution of this state, in that the provisions of subsection 6 were by legislative enactment added to section 51 of the Code by way of an amendment thereto, without, as required by section 51 of the Constitution, re-enacting and publishing at length the whole of the section as thus amended. It is also insisted for the plaintiff, and urged by his counsel as the ground principally relied on for the writ of prohibition prayed of this court, that subsection 6, § 51, Code, likewise violates article 4, § 2, and Amend. 14, § 1, Constitution of the United States; the former declaring:

"The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

And the latter that:

"* * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Counsel for plaintiff cites the cases of Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250, and Moredock v. Kirby (C. C.) 118 F. 180, each of which, it is claimed, supports his contention as to the unconstitutionality of section 51, subsec. 6, Civil Code. On the other hand, counsel for the defendants J. E. Childers, judge of the Pike circuit court, and Rush Williamson, is insistent in his advocacy of the constitutionality of the Code provision, supra, and in support thereof cites a number of cases, beginning with Guenther v. American Steel Hoop Co., 116 Ky. 580, 76 S.W. 419, 25 Ky. Law Rep. 795, all decided by this court, and in each of which its constitutionality was declared or recognized.

In view of the conclusion at which we have arrived in this case, it will be unnecessary, indeed improper, for us to determine whether section 51, or subsection 6 of the Civil Code in question are repugnant to the provisions of the state or federal Constitution referred to, or otherwise. The general rules by which we feel it our duty to be governed in passing on the plaintiff's motion for the writ of prohibition prayed in his case, are tersely stated in 22 Ruling Case Law, § 10, p. 12, as follows:

"Even though a court assumes to act in a case where it has no jurisdiction, this alone is not a sufficient ground for the issuance of a writ or prohibition, if a full, complete, and adequate remedy can be obtained otherwise, as, for instance, by appeal. * * * It is otherwise, however, if the particular case is not appealable. Under such circumstances prohibition will lie to correct an erroneous decision of a question of

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