Newport News, Co. v. Thomas

JUDGE HAZIiLRIGG

delivered thic opinion ov ti-ie court.

The motion, of the appellant in this case to quash the return of the officer on the summons does not state the grounds of the motion. It was the duty of the defendant to have done this, and not only so, but he must have pointed out to the plaintiff, if within Ms knowledge, the proper person upon whom .service conld be had. (Wait’s Actions and Defenses, pp. 393-4, volume 6.) Moreover, without having the •court to pass on its motion to quash, the defendant filed its answer to the merits, and thereby waived the question of jurisdiction over its person. The mere fact that, in the order filing the answer the motion to quash is recited as not waived, does not alter the legal effect of filing the answer, which is to waive this preliminary motion.

In Sheppard v. Graves, 14 Howard, 505, the defendants filed several pleas in abatement, objecting to the service of the summons, and at the same time pleaded to the merits of the case. Judgment was obtained for the plaintiff, and on appeal the defendants relied •on their plea in abatement. The court said: “And by one of these rules (rules of common law), believed to be without an exception, it is ordained that objections to the jurisdiction of the court, or to the competency of the parties, are matters pleadable in abatement only, and that if after such matters relied •on, a defense be interposed in bar, and going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived.”

This is the universal practice in all courts so far as we •are informed. Any other rule would allow a defendant to experiment with the court and his opponent as to the merits of the case to no purpose. When his motion is acted on, if overruled, he may answer on compulsion, as it were, and in this event he may rely on any error committed to his prejudice with respect to the motion. (Chesapeake, &c., R. Co. v. Heath’s Adm’r, 87 Ky., 651.)

The verdict in this case ior killing the appellee’s* stock was rendered on Wednesday, October 26, 1892, and the motion for a new trial was made on Saturday thereafter, which was too late. The motion, however, for a judgment for the twenty-five per cent, damages under the statute (section 7, chapter 57, General Statutes), the finding of the jury being for as much as theappraisement in the country, was made and disposed of on Friday, the 28th, and hence the motion and grounds, for a new tidal filed on the succeeding day, calling in question, as they did, the action of the court on the motion for damages, were filed in time, and the judgment of the court thereon may be reviewed by this-court.

It is said in opposition to this view that there is no-bill of exceptions on this motion for damages. But there is a bill of exceptions, showing all the evidence heard on this motion, which was filed within the time allowed by the court. When time is given until a day certain to file a bill, if it is filed on or before that day, it is in time. (L. & N. R. Co. v. Turner, 81 Ky., 489.) The bill of exceptions recites that there was no-proof or evidence heard on the motion for twenty-five per cent, damages, other than that contained in the-bill on file.

It is apparent that the notice to the company, required by the statute to be given by the owner of stock killed, for the appointment of appraisers, was not sufficient in this case, and the court should not have rendered the judgment for damages.

The notice did not fix the time when the application; for the appointment was to be made, and it is not shown that the company did appear. In fact, it was not addressed to the company alleged to have done the killing.

The judgment on the verdict can not be disturbed for the reason indicated, but to the extent that damages were awarded, the judgment is reversed for proceedings consistent with this opinion.