Rush v. Childers, Presiding Judge and Williamson
| Decision Date | 19 May 1925 |
| Citation | 209 Ky. 119 |
| Parties | Rush v. Childers, Presiding Judge of the Pike Circuit Court and Rush Williamson. |
| Court | United States State Supreme Court — District of Kentucky |
1. Prohibition — Writ to Prohibit Consideration of Case Denied, where Remedy on Appeal was Ample. — Whether Civil Code of Practice, Kentucky, section 51, subdivision 6, under which service was had on defendant, is violative of Constitution, Kentucky, section 51, or Constitution, U.S., article 4, section 2, and Amendment 14, section 1, should not be determined on application, under Constitution, Kentucky, section 110, for writ of prohibition against court, entertaining jurisdiction, under authority of statute, and writ should be denied; there being ample remedy by appeal.
2. Prohibition — Lack of Jurisdiction Not Ground for Writ, if Full Remedy May be had on Appeal. — That court assumes to act without jurisdiction is not ground for writ of prohibition, if full or adequate remedy may be obtained otherwise as on appeal.
3. Prohibition — Writ Would Issue to Stop Enforcement of Void Statute or Ordinance Resulting in Damage and Multifarious Prosecutions. — Where attempt to enforce void statute or ordinance would result in damage and multifarious and persecuting prosecutions, writ of prohibition to stop proceedings would issue, notwithstanding there would be an appeal from judgment, since that remedy would not be adequate.
4. Appearance — Appeal from Judgment Held Not "General Appearance," so as to Waive Objection to Jurisdiction of Lower Court. — In view of Acts 1924, chapter 34, an appeal from judgment on motion to quash summons will not constitute a "general appearance" in action, so as to waive objection, properly taken, to jurisdiction of lower court.
5. Prohibition — Delay, Consequent on Appeal, Held Not to Render it Sufficiently Inadequate to Justify Writ. — On application for writ of prohibition against personal injury action, facts that action was brought several years after accident and that a remand on appeal would make subsequent trial so long after accident as to endanger fairness held not sufficient to justify court in determining question raised as to lower court's jurisdiction.
On Motion for Writ of Prohibition.
HARMAN, FRANCIS & HOBSON for plaintiff.
J.C. CANTRELL for defendants.
Overruling motion for and denying writ of prohibition.
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 sixteen 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 twenty-one 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, Kentucky. 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 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, Kentucky, in the name of H. G. Rush Stave Company.
The motion to quash 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 waving 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 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 by a pleading filed 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, subsection 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, section 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, 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, section 51, code, likewise violates article 4, section 2, and article 14, section 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. 269; and Moredock v. Kirby, 118 Fed. R. 80, each of which, it is claimed, supports his contention as to the unconstitutionality of section 51, subsection 6, Civil Code. On the other hand, counsel for ...
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