Knoxville Banking & Trust Co. v. Mershon

153 S.W. 238, 152 Ky. 169, 1913 Ky. LEXIS 637

• Court: Court of Appeals of Kentucky
• Decided: February 12, 1913
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Hobson.

Reversing.

I. J. Bauhard and Miel Bauhard are partners doing business under the firm name of Bauhard Bros., and residing at Martinsville, Indiana. On July 2, 1908, M. L. Pearce. and thirteen ¡other persons executed three notes to Bauhard Bros., payable at the First National Bank of Corbin, Kentucky; two of the notes toeing for $850, and one for $900. Bauhard Bros, sold and endorsed the notes to the Knoxville Banking and Trust Company. The notes were not paid at maturity and wiere protested for non-payment. On November 10, 1911, the Knoxville Banking & Trust Co-, brought this suit in the Jefferson circuit court against the Bauhard Bros., the endorsers and twelve of the obligors in the note. Mel Bauhard was served .with process-, in Jefferson county. The other defendants resided in ’Knox and Whitley counties, Kentucky, and were served with process there. Mel Bauhard made no defense to the action tout the other defendants who had been .served in Whitley and Knox counties and resided there-, entered a motion to quash the process and the ¡officer’s return thereon as to ¡each of them on the ground that none of them resided.in .Jefferson county; that none of the defendants that might bie properly joined as .such in the action, was summoned or resided in Jefferson county; that the plaintiff and Bauhard Bros, entered into a'conspiracy to obtain jurisdiction against the other defendants- by Mel Bauhard appearing in Jefferson county for.the purpose of being served, and that the jurisdiction against the -other defendants was procured by fraud of the plaintiff and Bauhard Bros. On the hearing of the motion it was shown that in the year 1911, the plaintiff instituted a -suit in the Whitley circuit court against the makers on the notes; that an answer was filed by -the defendants pleading that they did not sign or execute the notes; and the case coming -on for trial, the plaintiff -at- the conclusion of its testimony, dismissed its case without prejudice. After this the plaintiff instituted an action ¡against the -same defendants in the United States circuit court for the Eastern District ¡of Kentucky at Covington, the defendants appeared and obtained- an order transferring the case for trial at London, Kentucky. The plaintiff -then dismissed its case without prejudice.- It also appeared from the proof heard -on the motion, that the plaintiff dismissed -its case in the Whitley circuit court, and in the United States circuit court for the reason that it apprehended that under local conditions it could not obtain a fair trial before the local jurors; that the attorney for the plaintiff after these suits were dismissed, requested Mel Bauhard to come to Louisville, telling him that -a suit would be instituted in the Jefferson circuit court, and asking him to come to Louisville so that process could be served on him there; and that by giving the Jefferson circuit court jurisdiction, the matters involved in the case could be tried -out before an unbiased jury and justice could be obtained; that pursuant to this letter Bauhard did come to Louisville, and the process was served on him there, and was so served for the purpose of giving the Jefferson circuit court jurisdiction. Gn this showing the circuit court sustained the motion of the defendants to quash the process. The plaintiff appeals.

Section 78 of the Civil C-ode provides:

“An action which is not required by the foregoing sections of this -article to b-e brought in some other county, may be brought in any county in which the defendant, ok in which one of several defendants, ¡who may be prope-rly joined as such in the action, resides or is summoned. ’ ’

The'action is not required by any of the foregoing stec-v ti-ons to be brought in some other county, and is governed by this section. Bauhard Bros., being the endorsers of the no-tes, may be sued jointly with the makers. Bauhard Bros, were therefore properly joined in the -action -a-s defendants. While neither of the B-anhard brothers lived in Jefferson- county, Mel Bauhard was summoned- there; and by the letter of the statute, the 'action may be brought iu any county -in which orne of the defendants who is properly joined as -such iu the- action, is- summoned. But it is insisted that Mel Bauhard having come to Louisville for the express purpose of being -summoned there to give the court jurisdiction, ¡at the bequest -of the plaintiff and under .an agreement with the plaintiff, the letter of -the statute should not -control. By section 80 of the code no judgment shall be rendered against defendants served with process -out of the county in which the- .action is brought, if the -action is discontinued'-or dismissed as to the defendant who is summoned in the county or if judgment be rendered in his- favor, unless the defendant -summoned -out of -the county make defense without objecting to the jurisdiction ¡o-f the court. In Pottinger v. Mayfield, 14 Ben. Mon., 647, this section was applied; and it was held that no-judgment could he taken against the defendant who was not served with process in. the county unless judgment had been first obtained- against the -defendant served with process in that county. The same rule was applied in Ward v. George, 1 Bush, 357; Duckworth v. Lee, 10 Bush, 51. In McGuire v. Rudy, 7 Bush, 432, the defendant who was -served with process- in the county filed no answer, and judgment was rendered- against him by de-fault. Judgment was afterwards' rendered against the defendant who was served out of the county, but on appeal it was held .that no cause of action wa-s stated against the defendant served in the county and that the judgment against the defendant .served out -of the county was erroneous. Practically the same ruling was made in Bayse v. Brown, 78 Ky., 553. In Wood v. Wood, 78 Ky., 624, all the defendants resided out of the county. One of them, however, was induced by fraudulent representations to- come into the county, -and was- thus -served with process there. It was held that the process should be quashed. In Kennedy v. Davenport, 13 Ben. Mon., 167, the defendants lived out of the county where- the suit w-as brought, but one of them entered his- appearance to- the action. It Was held th-at Ms subsequent assent to the jurisdiction only operated upon him and could not affect the others as to whom the court had- no- jurisdiction. In that case the court said:

“In looking through the cases in this court on the subject o-f jurisdiction as dependent upon parties, we find the uniform language to be-, that in suits in chancery as well as at law, one at least of the necessary parties must have resided or at least have been served with process in the co-unty in which the snit is brought, to- give the- circuit court of that county jurisdiction over parties resident and served with process in other counties, and who- have not appeared, and that unless the party residing oir served with process in the- -county be- found subject to- a judgment or decree, none can be rendered -against -other parties who do-not appear. We have neither found nor been referred to any case in which the court has decided that the answer of one party i-s, as- to- the other parties, to- have the same effect -as the service -of process in the- county in which the answer is filed would have had, in- giving general jurisdiction over the case, -and the -other .parties, as if there had been service of process on one of the parties in that county.”

Following this case, it was held .by the superior court in Ault v. Everitt, 16 R., 93:

“Even conceding that one of the only two defendants properly joined as such in this action entered his appearance, that fact did not give the court jurisdiction of the other, both residing and being summoned in another county, although if the defendant who entered his appearance had been summoned in the county the court would, under section 78 of the code, have had jurisdiction of both.”

_ In Bishop v. Jackson, 28 R., 1136, in a case not unlike this we said:

“Section 78 of the'Code of Practice provides that an action like this ‘may be brought in any county in which the def endant or in which one of several defendants who may 'be properly joined as such in an action resides or is summoned.’ There is no provision in the code limiting the jurisdiction of transitory actions like this to citizens of this .State. The only requirement is that the action shall be brought in the county in which the defendant re-sides or is summoned. The fact that -the plaintiff in the action resided in a foreign State does not prevent him from instituting an action in any county in this 'State against a defendant, whether the defendant lives in this State or not. If the court -has jurisdiction of the subject matter of the action and of the person of the defendant by the execution upon him of process in the county in which the action is instituted, it may be maintained.”

Again, in the recent case of Austin v. First National Bank, 148 Ky., 587, where the endorser of the note was joined as a defendant, we said:

“The action, however, was properly maintainable in Allen County since both Austin and Gardner were proper parties to the action, and were summoned in that county. The fact that Austin was a bankrupt did not make him an improper party to the action, since he was originally liable upon the note, and might not have relied upon his bankruptcy to defeat that liability. There is neither charge nor proof that the bank participated in any fraud; neither are we prepared to say that the allegation that Gardner assigned the note for the purpose of enabling the bank to sue in Allen county, could affect the question of jurisdiction. The bank -is a bona fide holder of the note f-o.r value, and had the right to sue wherever the law gave it that right, regardless -of the intention -of Gardner. This is not a ease where service upon a defendant has been fraudulently procured', by bringing the defendant within the'jurisdiction of the court.”

If the plaintiff by any fraudulent representation had induced Mel Bauhard to- come to Louisville, and had thus procured the service of process upon him in Jefferson county a different question would be presented. But it is not a fraud that the plaintiff brings the action where one of the defendants wishes it brought, and where this defendant to facilitate the bringing .of the action in that jurisdiction, goes to the county that the process may be served upon him. The code allows the action to be brought in any county where -one of the defendants who may be properly joined, is summoned and it would be an undue restriction upon the plain language of the statute to say that it does not apply where the defendant voluntarily goes to the county in order that service may be had. In many statutes- jurisdiction depends upon residence; -and in numerous cases it has been held that the intention with which the residence is taken -is immaterial; that the jurisdiction exists if the residence in fact exists. A lawful act does not become unlawful because it may be /done by agreement between two parties or to secure for one of them an advantage. If Bauhard had gone to Louisville on business or pleasure, and- had been served with process while there, no doubt could be -entertained of the validity of the process, although he knew or had reason to know the process would be served when he went there. If he had the right to go theirie- on pleasure knowing the process would be -served, can it make any -coherence that he went there for the purpose of its being served? And if not, can it make any difference that there was agreement beforehand between him and the plaintiff that he would do this? The sum- of the matter is the service of process gave the court jurisdiction, and any -one of the joint defendants had the same right as the others to- give -it jurisdiction. To illustrate, suppose one of the other i defendants -preferred to be sued in Pulaski county and had gone to- 'Somerset and been served there in a 'suit brought by the plaintiff in that county, could the other defendants have complained? "What his reason was for his course, would not affect the validity of his act, if he exercised only a legal right; and what a man may lawfully d'o. of Ms own volition does not become unlawful wihen done under .a prearrangement with another. We therefore conclude that the (circuit court erred in quashing the process.

Judgment reversed and cause remanded for further proceedings consistent herewith.