Hileman v. Day Bros. Lumber Co.

Opinion op the court by

JUDGE DuRELLE

Reversing.

Appellants brought this suit in Letcher county against appellee company, a corporation having its office and place of business in Breathitt county. The averments of the petition are that the appellants are the owners, and entitled to the immediate possession, of certain described logs, and that appellee company has wrongfully and against appellants’ will, and without their consent, in Letcher county, taken possession of the logs, and now wrongfully holds possession thereof, and has so held them for thirty days preceding the bringing of the suit, to the great damage of appellants. The prayer is for judgment for the logs and for damages. The circuit court on motion dismissed the petition, on the theory that the suit was not for a tort, within the meaning of section 72 of the Civil Code, and that the Letcher circuit court had therefore no jurisdiction. The Code section provides, with certain specified exceptions, that “an action against a corporation which has an office or place of business in this State . . . must be brought in the county in which such office or .place of business is situated, . . . or if it be upon a contract in the above named county, or in the county in which the contract is made or to ,be performed, or, if it be for tort, in the first named county or the county' in which 'the tort is committed.” Whether the petition is sufficient, under section 181 of the Code, to authorize an order of delivery, is a question not .presented here. The question is solely of jurisdiction.

Assuming that the conflict of the authorities as to whether the common-law action of detinue was an action of contract should, in this State, under Luke v. Marshall, 5 J. J. Marsh, 353, be considered as settled in the affirmative, we are still of the opinion that the allegations in this case, -whether defective or not, are a statement of a tortious taking of the logs. If the statement is defective, the defect can not be taken advantage of by motion to dismiss. The judgment is therefore reversed, and cause remanded, with directions to set aside the order of dismissal, and for other proceedings consistent herewith.