Opinion oi- the court by
JUDGE PAYNTER
Affirming.
This case was before this court on a former appeal, and the opinion delivered is found in 43 S. W. 731. The purpose of this action is to enforce a judgment which AY W. Ball recovered against the Maysville & Big Sandy Railroad Company, and one recovered by Boyd and wife and one by Nelson and wife against the same. The defense to t’he enforcement of each judgment differs somewhat,— especially as to the defense of the Ball judgment. A\re will consider the questions raised by the defense,? interposed on the several judgments.
Ball Judgment.
The appellant constructed its line of railway along a street in the city of Maysville, by the properly of Ball; and he claims that his property was damaged by reason of the interference with his easement of access, and by injuring his property by throwing soot and cinders on it, etc. For the damages thus resulting, he recovered judgment. By the previous opinion of the court, we adjudged that it was a taking of his property. The appellant filed [249] an answer, which is designated as a “counter-claim;” and, so far as it is necessary to give them, the facts averred are as follows: That' before the doing of the acts of which Ball complained in his suit to recover the judgment which he now seeks to enforce, to wit, on the 29th of April, 1886, he, together with a number of gentlemen, entered into a contract with the Maysville & Big Sandy Railroad Company to furnish and provide, and cause to be conveyed to it, suitable rights of way for its line of railroad from its present track at Ashland, in the\ State of Kentucky, to the eastern boundary line of Campbell county, in this State, — such right of way to be on the line designated by its engineer therefor, except so far as the right of way had been secured and paid. for, — and that the right of way which they agreed to furnish was to be of the width already located and designated by its engineer. Ball’s property which was taken was situated on that part of the proposed line of railway, the right of way for which he and his co-obligors agreed to furnish, provide, and have conveyed to the railroad company. It is contended for appellant that, under the contract' which Ball entered into, he was bound to furnish the property for the taking of which he recovered judgment; and it resists the enforcement of the judgment on the grounds of this contract, claiming that it is now available to prevent the enforcement of the judgment. For Ball it is insisted that if the contract imposed the obligation to furnish the property which was taken from him, or to pay the damage which resulted to him by reason of the construction and prudent operation of the road, it was available as a defense to his action, and, not having pleaded it as a defense, it can not now be done. For the purpose of considering this question, we will assume that the contract which Ball and his [250] associates entered into released the railroad company from the payment of the damages which he recovered. Of course, it is upon this theory that the appellant seeks to plead that contract as a defense to Ball’s right to enforce the judgment.
It is insisted by counsel for appellant that the contract which Ball and others entered into was not an executed conveyance of the right of way over any property, corporeal or incorporeal, that they or either of thorn owned, upon which the line of railway was or might be located, and also that it was not an executory agreement upon their part to convey such right of way to the appellant. It is argued that if it was an executed conveyance, or an executory agreement to convey, it was either a gift or a sale, and, if a sale, there was a certain purchase price for it, and that there was nothing in the contract which indicates that it was either a sale or a gift. It is said that, if the contract was a conveyance of the right of way over Ball’s incorporeal property, such conveyance might have been pleaded as a defense to Ball’s common-law action for damages, and it would be too late now to set it up. It is likewise admitted that the same result would follow if it was an executed agreement to part with the right of way over the property of the guarantors. The contract relied upon, executed by Ball and others, shows that the right of way was not to be a gift by them to the railroad company. On the contrary, the consideration for securing the right of way was that the company obligated itself to construct a line of railway between the points designated in the contract; and the further consideration was that the company was,to issue to them stock to the amount which the various counties, cities, and towns along' the line of railway expended in aid of furnishing the right of way, [251] wbicb they obligated themselves to do. For the undertaking of the guarantors to furnish and provide, and cause to be conveyed to the railroad company, there was assumed by the parties to the contract to be a full consideration. The contract of Ball and others did not in terms say that those of the guarantors who owned property along the line of the road, which would be necessary to be taken for a right of way, should convey it. Still, they obligated themselves to provide, furnish, and have conveyed the right of way, which necessarily included that which was necessary to be taken through their own lands. If the railroad company compelled them to acquire it from some one else, and have it conveyed to it, why could not the railroad compel one of the guarantors to convey to it a right of way over his own land? Their obligation, as expressed in the contract, is joint and several,— to furnish the right of way wherever the engineer designated it. The right of eminent domain compels every, citizen, for proper compensation, to give up his property to public use. The right of the railroad company existed to take the property of Ball, if it was necessary in the construction of the road. In the absence of a contract, the law gave the railroad company the right to take it, by making proper compensation; but, instead of the railroad company relying upon the right of eminent domain to secure this right of way when it reached the property of Ball, it had in its possession a contract of Ball, by which he agreed to provide, furnish, and have conveyed to the company, a right of way which included his own property. 1 If the contract was enforceable against the guarantors, as it is claimed to be by counsel for appellant, there was an obligation upon Ball to see that the identical property in controversy was to be conveyed, t o the railroad [252] company. This position is assailed by the appellant, and, to do so, the mutual interest of the guarantors is urged as a reason why it is not a proper conclusion. The appellant had no concern in the settlement of the rights between the guarantors. It was careful to have stated in the contract that they were bound jointly and severally on the undertaking. It is suggested that, in order to enable the guarantors to comply with the contract on their part, it was necessary for them to agree with each owner of property, corporeal or incorporeal, over which the right of way was located, for the conveyance thereof, and to comply with the terms of the agreement, and secure execution and delivery of the conveyance; and this construction of the contract and its effect is necessary in order to preserve absolute equality among all the guarantors, and to place them all upon an equal footing. The mutual obligations of the guarantors to each other, whether by the terms of the writing, or such as are implied by law, can not bo considered in this controversy between one of the guarantors and the railroad company. Regardless of any obligation that was upon the part of the co-guarantors, the officers of the railroad company could have said to him when they reached his property in the construction of the road, “If you have not been paid for your property by your co-guarantors, we are not concerned about that, because you obligated yourself individually that you would provide, furnish, and have conveyed to our company, this right of way;” and, in our opinion, a court of equity would have enforced the contract. However, it is not necessary to take this view of the case in order to reject the claim of the defendant to the right to prevent the collection of this judgment by reason of the contract. This right of way was secured over the streets of the city of Maysville [253] by tbe action of the proper authorities of that city. Under the adjudications of this court, and as cited in the previous opinion delivered in thi's case, and the reaffirmation of that principle, Ball could not have maintained an action for damages to his property until the road was completed. Neither could he have enjoined the railroad company- from constructing its ro-ad along that street. So under the law the company was entitled to take exactly what it did, and Ball was compelled to await its action in the completion and the putting in operation the road, before he could tell the extent of his damages. He then brought suit to recover the damages which resulted from the taking of his property. If Ball’® contract obligated him to furnish that which was taken by the railroad company, then, when he sued for the alleged damages resulting therefrom, the railroad company could have interposed the plea that he had not been injured, and had no right to recover, because he had agreed to furnish to the railroad company the very thing which he claimed produced his damage when it was taken. If Ball’s contract to the company makes him liable to the defendant for the amount of the .-judgment which he recovered against it, it is because his/contract obligated him to furnish the very thing for thd taking of which he recovered damages. The amount of (the damages has been ascertained by the judgment, and it/is now claimed that, by reason of that contract to furn-i./lv the property taken, it is available as a defense to the judgment. The defense here presented existed when the Judgment was recovered, as the contract had been executed previous thereto. It is against reason to say that the Judgment should not be enforced because of this contract, ks by its terms Ball was bound to furnish the thing for Ijpe taking of which he recovered damages, and at the same [254] time to .say that that contract would not have been available as a defense to the action in which he sought to recover the damages for taking it.
It has been suggested that the contract which Ball had with the company was not enforceable until the amount of •his claim was ascertained by a suit for damages. If its terms deprive Ball of the right to collect anything from the railroad company for the injury he received, it is folly to say that the amount of his- injury should be ascertained. If he is not entitled to collect the judgment, by reason of his contract with the company, he never had any enforceable claim against it, and wasi not entitled to have any amount fixed. It is- wholly immaterial to the appellant whether Ball could compel his co-obligors- to contribute to his loss. Its claim of right to plead this contract a.s a defense to the judgment, thus making Ball pay the entire amount, shows that it has no consideration for or interest in Ball’s claim against his co-obligors. Therefore an argument which is made based upon a desire to regard Ball’s rights in a settlement of matters' between him a\nd his co-obligors comes without any force, nor is it applicable to the issue between him and appellant. Whenever there is a breach of the covenants of a contract, a cause of, action arises. When the railroad company constructed (its tracks along the street in close proximity to Ball’s property (if the guarantors were by their contract to furnilsh the property, for the taking of which Ball received judgment), then there was a breach of the contract upon thte part of the guarantors for their failure to furnish thip property taken from Ball, and therefore a cause of actiom had accrued to the railroad company against them jointly and severally. So when Ball instituted his action to rei cover damages the railroad company’s alleged cause off [255] action existed against him then as now. The judgment did not add to its cause of action, because it has not been paid. If by reason of such contract he is not entitled to collect his judgment, then for the same reason he was not entitled to recover it. Therefore the contract was a defense to the action for damages. In treating Gf defenses to actions on judgments, Chitty on Pleading (volume 1, p. 486) says. “No matter of defense .can be pleaded which existed anterior to the recovery of the judgment.” The same rule is recognized in 2 Black, Judgm. section 754, wherein it is said: “It is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or -supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. A party can not relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies in reference to the same subject-matter.” In Hill v. Lancaster, 88 Ky. 338, (11 S. W. 74), this court said: “To allow a defendant to split his defenses, relying upon one until judgment is rendered' upon it against him, and at the next term open the judgment and plead another defense, and so on, would be a mockery of legal justice. Therefore it is a universal rule that the final judgment of a court of competent jurisdiction is not only conclusive of all issues actually decided, but of all that might and should have been decided by it.” Did Ball’s guaranty obligate him to do more than to have him convey or have conveyed to the appellant a right of way of the “width already located and designated” by the appellant’s engineer? It is said in Joy [256] v. St. Louis, 138 U. S. 44, (11 Sup. Ct. 843), (34 L. Ed. 843): “Now, the term 'right of way’ has a twofold signification. It sometimes is used to describe a right belonging to a party, — a right of passage over any track, and it is also used to describe that strip of land which railroad companies take upon which to construct their roadbed.” This definition of “right of way” was recognized as being correct in New Mexico v. United States Trust Co.. 172 U. S. 181, (19 Sup. Ct. 128), (43 L. Ed. 407). In our opinion,' the language used in the contract indicates that the guarantors only obligated themselves to have conveyed to the railroad company the strip of the width designated by the engineer of the appellant. It excludes the idea that they were to be responsible for property that might be taken outside of the right of way by the railroad company. Ball’s claim was not that they had taken the right of way through his land, but that they had taken his property outside of the right of way, by constructing and operating the road on the right of way so as to interfere with his easement of access, and by jarring and injuring his buildings, etc.
Boyd and Nelson Judgments.
The Maysville & Big Sandy Railroad Company leased its line of road to the Chesapeake & Ohio Railroad Company, the latter company being in possession of the road at ,the time Boyd and Nelson instituted their actions. ' Their property was situated along the line of the Maysville & Big Sandy Railroad Company, and they sought to recover damages for the same causé for which Ball recovered judgment. The judgments which they each recovered are attacked collaterally in this proceeding. The averments of the Maysville & Big Sandy Railroad Company’s answer in regard to these two judgments are as follows, to wit: [257] “The defendant, the Maysville & Big Sandy Railroad Company, comes and for further defense to the plaintiff’s petition states that the judgments' set forth therein, in favor of the plaintiffs, James N. Boyd and Josephine Boyd, his wife, and also the judgments .set forth therein in favor o£ the plaintiffs., Jennie T. Nelson and her husband, Frank Nelson, Bird Franklin and husband, H. F. Franklin, Elizabeth Weare and husband, Nathan Weare, are null and void, because the. defendant was not served' with process in the actions wherein said judgments were rendered, nor did it directly or indirectly, in any manner whatever, enter its appearance to either of said actions. It states that a summons issued in each of said actions against this defendant, and upon each of said summonses the sheriff of Mason county, to whom same were directed, made the following return, to wit: ‘I éxecuted the within summons on the within-named defendant, Maysville and Big Sandy Railroad 'Company, on September 23, 1890, by delivering on said date in Maysville, Kentucky, a true copy thereof to F. C. Janowitz, chief agent in Mason county of the Chesapeake & Ohio Railroad Company, which latter . corporation at the time, and ever since said summons came to my hands, was controlling and operating the line of railway in Mason county that was built and constructed and. was owned by the defendant, Maysville & Big Sandy Railroad Company, which latter corporation has had since this summons came to my hands no officer or agent in Mason county known to me, or that I have been able to find or hear of after diligent inquiry, and which, there; fore, can not be served with process in Mason county un- ' der the láw as it stood prior to the amendment to section 51 of the Code of Practice, approved May 10, 1890. John [258] W. Alexander, S. M. C.’ This was the only return upon said -summons, and there was no other summons issued in said' actions than these upon which said returns were so made. Nor was there any other service of process upon this defendant than as stated in said returns in either of said actions. Nor was it made to appear in either of said actions, by affidavit or any other manner, that this defendant had no -officer or agent in the State of Kentucky, outside of Mason county, upon whom service could be served, under section 51 of the 'Code, prior to said amendment; and such was not the case. They therefore charge and aver that sa-id judgments are null and void, and of no validity whatsoever, and all .subsequent proceedings thereunder were and are null and void.”
Before the institution of these suits the Legislature passed an act amendatory to section 51, Civil Code of Practice, the first section of that act being as follows: “Where the defendant corporation ' is the owner or the lessee of a railway in this State, ’ or the builder or constructor of a railway in this State, and can not be served with summons under the existing laws, then the person or corporation controlling or operating the railway so owned or built or constructed shall be treated as the representative of the defendant, and service of summons upon such of the officers or agents of the persons or corporation operating or controlling the railway as would be required if such controller or operator were the party sued, shall be a sufficient service of summons upon the defendant to the action; but such service must be twenty days before the commencement of the term, and the facts authorizing the same must be made to appear by the return of the officer or the affidavit of some person other than the plaintiff in the action, and the appearence of the defendant to move [259] for tbe quashal of the service of the summons shall operate as an appearance for all the purposes of the action, and the same shall stand for trial at the succeeding term of the court, in case the motion, to quash shall prevail.” Laws 1889-90, p. 135. The service of summonses in the Boyd and Nelson cases were made by Alexander, and the return he made therein was in the language above quoted. The return was made in an effort to comply with the. amendment of the Civil Code of Practice, to which we have referred. Before entering into a discussion of the questions raised, it may be added that the amendatory act is constitutional. Railroad Co. v. Shofstall (Ky.) 24 S. W. 1068. An act of substantially the same import, of the Texas Legislature, was adjudged to be constitutional in York v. Texas, 137 U. S. 15, (11 Sup. Ct. 9), (34 L. Ed. 604), and Kauffman v. Wootters, 138 U. S. 285, (11 Sup. Ct. 298), (34 L. Ed. 962).
The proceedings in court, after the return of the summonses, differ materially in the Boyd and Nelson cases, and part of the judgment in the Boyd case is in the following language: “The court, having fully considered the defendant’s objections to the jurisdiction of the court in this action, overrules the same, to which the defendant objects and excepts. The defendant moved the court for leave to withdraw its special entry of appearance herein, to which the plaintiffs objected. The court, having considered the defendant’s said motion, sustained the same, and allowed it to be withdrawn, to which the plaintiffs excepted.” The language indicates that the defendant objected to the jurisdiction of the court generally, but, as the defendant then asked leave to withdraw what was denominated a “special entry of appearance,” it is presumed that the court below understood it to be a special [260] entry of appearence. The object of the action was to recover damages to real estate, and the venue of the action was in the Mason Circuit Court. The Maysville & Big Sandy Railroad Company was a corporation organized under the laws of this State-. So it w;as an action by a citizen of this State against a citizen of the State, and in the court having jurisdiction of the subject of the action. Therefore this special entry .of appearance could have had no reference to the jurisdiction -of the court as to the subject of the action. The objection could not have been to the jurisdiction of the Mason Circuit Court to try the action, nor could any question have been raised that the Maysville & Big Sandy Railroad Company could not have been sued in the Mason Circuit Court by the plaintiff. The objection went to the jurisdiction of the person, and the motion could have had reference to nothing except the sufficiency of the return of the sheriff on the summons. The purpose of the motion was to quash the return of the sheriff on the summons, without expressly stating on the record that'that was the purpose of it. If they had moved to quash the service of the summons, under the act which is amendatory of section 51, Civil Code -of Practice, it would have operated as an- appearance for all the purposes of the action. It was an effort to evade the effect of the statute simply by the form of the motion. In our opinion, this could not be done. It must be regarded as a motion to quash the service of the summons. The court passed upon the jurisdictional question raised, and adjudged that it had jurisdiction of the appellant; and if the return of the summons did not comply with the law, so as to bring it before the court, its motion did do so, and the court had jurisdiction of the subject of the action and of it. In the case of York v. State, 73 Tex. 651, (11 S. W. [261]*261869), in passing upon substantially the same question as is here fo-r consideration, the court said: “The appearance of appellant, though by plea, was only to have an adjudication1 of the insufficiency of the process and service through which he was sought to be brought into court, to give the court jurisdiction over his person. Whether this question be raised by motion or plea, the appearance is for the same purpose and of the same character, and must be given the same effect. In the one case, as in the other, the appearance is made for the sole purpose of questioning the jurisdiction of the court over the person of the defendant.” In York v. Texas, 137 U. S. 15, (11 Sup. Ct. 9), (34 L. Ed. 604), the Supreme Court of the United States affirmed the judgment of the Texas Court. It is useless to discuss the question as to the effect of the appellant’s effort to withdraw his special entry of appearance, in the face of the Constitutional Statute declaring that,, when such entry of appearance is made, the defendant is before the court for all purposes of the action. It is claimed the Nelson judgment is void, upon the ground that the defendant had not been served with process in the action in which the judgment was rendered. The attack on the judgment is not direct, but collateral. It is a well-settled rule that domestic judgments rendered in a court of general jurisdiction can not be collaterally attacked unless the want of jurisdiction appears upon the record. Therefore no evidence is admissible except that which is furnished by the record of the action wherein the judgment was rendered. Of course, the rule is otherwise when a direct attack is made upon a judgment. The answer that the defendant was not served with process, and did not appear in the action, etc., is insufficient, because it also should have alleged that the record shows such to be the case. In Van [262] Fleet on 'Collateral Attack (section 855) it is said: “An answer to an action on a domestic judgment, where special pleading is required or attempted, must not only deny service and appearance, but must allege what the record shows or fails to show on these points. . . . Hence an answer to an action on the record of any court must allege that it does not show any service or appearance, and, if the record is that of a superior court, it must allege that it affirmatively shows a want of service.” 1 Black, Judgm. section 271, announces the same doctrine, wherein it is said: “When a party seeks in a collateral action to impeach the judgment or decree of a court of superior jurisdiction on the ground that he had no legal notice of the pendency of the action, it is necessary that he should allege in his pleading what, if anything, is shown by the record in relation to the issue and service of process, because, unless the record itself shows that the court never acquired jurisdiction of him, it will be conclusively presumed that the jurisdiction did attach.”
Action is not taken upon the contempt proceedings, but the question is reserved for future action of the court. The judgment is affirmed.