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session.

But the mere fact that it knew in failing to produce it at the trial, and the of the whereabouts of this brooch during effect of this would be to overturn the judg

the trial would not deny it the right to a new trial if by the exercise of due care and diligence it could not have produced the brooch at the trial. This was determined in the cases of Smith v. Chapman, 153 Ky. 70, 154 S. W. 915; Goodard v. Latta, 152 Ky. 538, 153 S. W. 737.

ment for causes that were fully litigated in the case in which the judgment was rendered and order a new trial simply to permit the parties to relitigate the precise issue involved in the other case.

We have been furnished by counsel with a number of cases holding that an administrator is only responsible for losses occasioned by his fraud, bad faith, or gross negligence. Thomas v. White, 3 Litt. 177, 14 Am. Dec. 56; Head v. Perry, 1 T. B. Mon. 253; White's Heirs v. White's Adm'rs, 3 Dana, 374, but the principle announced in these cases can have no weight in helping the administrator in this suit for a new trial; because, as we have said, the judgment against it is conclusive of the question that, in failing to secure possession of the brooch, it was guilty of fraud, or bad faith, or gross negligence.

The fact that the administrator has been able, since the judgment, to get possession of the brooch is not such newly discovered evidence as would entitle it to a new trial under the circumstances of the case.

Wherefore the judgment is reversed, with directions to dismiss the petition for a new trial.

(180 Ky. 833)

[3] So that the question comes down to the issue, did the administrator exercise reasonable care and diligence to secure the possession of the brooch before judgment went against it, and also brings up the question whether this issue was litigated in the suit between Stanley and it? Plainly, a new trial will not be granted to litigate an issue that was fully tried out in the case in which a new trial is asked, and we think it is equally plain that the issue whether the failure on the part of the administrator to secure the brooch was due to bad faith, or fraud, or gross negligence, on its part, or because, after it had exercised such care as a prudent administrator would exercise to obtain possession of the brooch, it could not do so, was directly put in issue, and litigated in the trial in which judgment went against the administrator. In fact, this was the real issue between the parties in that case; the administrator contending that it had exercised the required care to obtain possession of the SALLY v. BAKER et al. brooch, but could not do so, while Stanley (Court of Appeals of Kentucky. June 4, 1918.) contended that its failure to obtain posses- JUDGES 3-POLICE JUDGE-APPOINTMENT sion of it was caused by its lack of proper -"ANY." care and diligence. It would seem to neces-ers of a city of the fourth class shall be vested Ky. St. § 3510, providing that judicial powsarily appear, from the judgment against in a court styled "police court," which shall be it, that its failure to secure the brooch was held by a single judge, called "judge of the due to bad faith, or fraud or gross negli- police court," who shall be elected by the peonegli-ple at the general election in November or apgence on its part, because in the absence of pointed by the board of council, as the board a showing like this it could not have been may determine by ordinance, eracted at least held liable. It would further seem to fol- 60 days previous to "any" election, in November, does not require the passage of an ordilow that if its failure to secure possession nance providing for an appointment instead of of the brooch before the judgment went election in each year, the word “any" not against it was caused by bad faith, or fraud meaning in such connection "each," "every," or "all," so that a police judge, appointed by or gross negligence on its part, it ought not the council in 1917 by virtue of an ordinance to be allowed to open up that judgment on providing for an appointment passed in 1916, the sole ground that after it was entered, it was entitled to the office, as against a candisecured possession of the brooch, because, the ordinance not having been repealed. date who claimed to have been elected in 1917; giving to the judgment the weight and effect to which it is entitled, it could have secured possession of it, except for its gross negligence, or bad faith, or fraud, and this fraud, bad faith, or gross negligence necessarily consisted in its failure to get possession of the brooch, and hence the court must, of necessity, have disregarded the plea that it acted with proper care on the advice of counsel and did not think it prudent to incur the expense and take the risk of liability that might have followed an effort on its part to CLARKE, J. Appellant, who was plaintiff get the brooch. If we should set aside the below, claiming to be entitled to the office of judgment, it could only be upon the ground police judge of the city of Hazard, a city of that the administrator was not guilty of the fourth class, instituted this action, under fraud, or gross negligence, or bad faith section 483, Civil Code, against W. W. Baker,

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Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Any.]

Appeal from Circuit Court, Perry County. Ouster proceeding by Shiloh Sally against W. W. Baker and others. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Hogg & Johnson and F. J. Eversole, all of Hazard, for appellant. Williams & Grace and J. A. Grace, all of Hazard, for appellees.

charging him with having usurped the office of police judge and seeking to oust him. A demurrer to his petition was sustained, and, having declined to plead further, the petition was dismissed, and he has appealed.

Plaintiff claims to have been elected to the office at the regular election in 1917, but admits that the defendant was appointed by the city council, at its meeting in December, 1917, pursuant to an ordinance enacted at a regular meeting of the council in July, 1916. Section 3510, Kentucky Statutes, a part of the charter of cities of the fourth class, in so far as it is applicable here, provides:

time of the election in 1917, having been enacted more than 60 days prior thereto, there was no authority for holding an election for the office of police judge at that time, and plaintiff could not have been and was not elected to the office.

The petition showed affirmatively, not only that plaintiff had no title to the office, but also that the defendant was regularly appointed by the city council under an ordinance authorizing it so to do, that he had qualified and was in possession of the office, and the court did not err in sustaining the demurrer to the petition.

Wherefore the judgment is affirmed.

(180 Ky. 739)

"The judicial powers of the city shall be vested in and exercised by a court-styled 'police court,' which shall be held by a single judge called the 'judge of the police court,' who shall be elected by the people at the general election CENTRAL OF GEORGIA RY. CO. v. GORin November, or appointed by the board of council, as the board may determine by ordinance, enacted at least sixty days previous to any election, in November."

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DON, Judge.

(Court of Appeals of Kentucky. May 28, 1918.) PROHIBITION 3(5)—ADEQUACY OF REMEDY BY APPEAL.

The basis of plaintiff's claim to the office is that the statute means that the police Under Const. § 110, as to prohibition, projudge is to be elected by the people, unless the hibition will not issue on application of a foreign railroad to restrain a lower court from board of council should provide for his ap- taking jurisdiction of an action against the pointment by ordinance enacted at least 60 railroad, on the ground that the service of prodays previous to and within the year of every cess therein, being upon the soliciting traveling election at which a police judge is to be cho-agent of the railroad, was insufficient to confer election at which a police judge is to be cho- jurisdiction, the remedy by appeal being adesen, and that, as the ordinance providing for quate, although, on appeal from a decision adthe appointment instead of the election of the verse to the railroad on the question of jurispolice judge of Hazard was enacted in July, diction, after reversal for defective service, defendant would be before the lower court for all 1916, and not within the year 1917, in which purposes upon a return of the case. the term of the police judge expired, it was void and without effect. This contention is

based upon the theory that the word "any," as used in the statute preceding the word "election," means "each," "every," or "all," and that the statute must be construed as though it read "previous to each, every, or all, elections in November," and that the city council in order to avail itself of the privilege of appointment, conferred by the statute, must enact an ordinance providing for such appointment in each, every, and all of the years in which an election would otherwise be held to elect a police judge, and not less than 60 days before the date for holding such election. This contention is so clearly at variance with the ordinary meaning of the word "any," as well as the terms of the statute as a whole, that it hardly seems necessary to present arguments to refute it.

It is quite plain that the statute does not provide that the election of the police judge shall be by a vote of the people except in such years, when an election would be held, as council had provided by ordinance for his appointment, but confers upon the city council the authority to decide whether the office shall be filled by election or appointment, and when the city council has actually exercised that power by the enactment of an ordinance, the ordinance is the law as to the method that shall be followed until it is repealed by council. As this ordinance had not been repealed, but was in full force and effect at the

Original application by Central of Georgia against Thomas R. Gordon, Judge. Railway Company for writ of prohibition for writ overruled, and petition dismissed. Motion

Emmet R. Field and Trabue, Doolan & Crawford, all of Louisville, for petitioner. Thomas C. Mapother, of Louisville, for respondent.

THOMAS, J. This is an original proceeding in this court, wherein the petitioner, Central of Georgia Railway Company, seeks a writ of prohibition from this court restraining the respondent, Thomas R. Gordon, judge of the Jefferson circuit court, common pleas branch, second division, from taking jurisdiction of and further proceeding in the case of P. M. Metcalfe against the petitioner pending in respondent's court. That suit is one brought by Metcalfe, the plaintiff therein, against the petitioner here to recover of it damages to the amount of $360.77 because of alleged negligence in the transportation of a carload of hogs from Bancroft, Ga., to Louisville, Ky.

The petitioner and defendant in the Metcalfe suit is a Georgia corporation, and owns and operates a railroad in the states of Georgia, Alabama, and Tennessee, but none in Kentucky. The shipment of hogs for Metcalfe was an interstate one, with petitioner as the initial carrier and the Illinois Central Railroad Company as the delivering one.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Under the Carmack Amendment to the Interstate Commerce Act, the initial carrier is liable to the shipper for all damages growing out of negligence in the shipment, whether produced by its negligence or that of any intermediate or subsequent carrier. Upon this idea the Metcalfe suit was brought in Louisville and the summons served on one Allen W. Thomas, a traveling freight agent of the petitioner, with an office in the city of Louisville. Denying that Thomas was such an agent as would authorize the service of a summons upon him so as to give the court presided over by the respondent jurisdiction of the petitioner, a motion was made in that court to quash the return of the sheriff on the summons, which motion was supported by the affidavits of the vice president of the petitioner and of the alleged agent, Allen W. Thomas, each to the effect that the latter was nothing but a soliciting traveling agent with no authority to make any character of binding contract on behalf of petitioner, and that he was not therefore such an agent as is contemplated by our Code for personal service upon a corporation. The motion to quash the return was overruled, followed by the filing of this petition in this court to obtain the relief mentioned.

Telephone Co. v. Patteson, 114 Ky. 52, 69 S. W. 1070, 24 Ky. Law Rep. 832; Jenkins v. Berry, 119 Ky. 350, 83 S. W. 594, 26 Ky. Law Rep. 1141; Dupoyster v. Clarke, 121 Ky. 694, 90 S. W. 1, 28 Ky. Law Rep. 655; Renshaw v. Cook, 129 Ky. 347, 111 S. W. 377, 33 Ky. Law Rep. 860; Rush v. Denhardt, 138 Ky. 238, 127 S. W. 785, Ann. Cas. 1912A, 1199; I. C. R. R. Co. v. Rice, 154 Ky. 198, 156 S. W. 1075; Equitable Life Assurance Society v. Hardin, 166 Ky. 51, 178 S. W. 1155; McGee's Ex'r v. Weissinger, 147 Ky. 321, 144 S. W. 20; Smith v. Davis, 170 Ky. 379, 186 S. W. 176; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S. W. 178; Speckert v. Ray, 166 Ky. 622, 179 S. W. 592; Western Oil Refining Co. v. Wells, 180 Ky. 32, 201 S. W. 473. A mere reference to the cases is sufficient without excerpts from any of them, since the rule is so thoroughly established as not to admit of dispute, and which is admitted by counsel for petitioner. It is insisted, however, that although petitioner would have the right of appeal should Metcalfe in his suit against it succeed in recovering as much as $200, still if on such appeal it should succeed in reversing the judgment because of the error of respondent in overruling the motion to quash the return on the summons, it would then, under repeated opinions of this court, be before the court of respondent for all purposes upon a return of the case, and that its right of appeal because of such consequences is not an adequate remedy, and it is therefore entitled to the writ prayed for. This precise question was before us in the Ohio River Contract Co. Case, supra, which was the same character of proceedings against the same respondent that we have here, and it was there held that the remedy by appeal was none the less adequate because of the consequences allud

It is insisted by counsel for petitioner that the provisions of section 110 of the Constitution as interpreted and applied by numerous decisions from this court entitle them to the relief which they seek on behalf of their client because respondent erroneously overruled their motion to quash the return of the sheriff on the summons, and that if he proceeds further in the case it will result in great and irreparable injury to petitioner, and that it has no other adequate remedy except this application to this court. Much learned and interesting discussion is indulged in to show that Thomas, the one upon whom the sum-ed to, although the same objection to the admons was served in the Metcalfe case, was not such an agent as a legal service could be had upon him, and that his duties were not such as to constitute the doing of business in this state by his principal, and we are asked to review the ruling of the respondent upon that issue. A compliance with that request requires us to look into and determine the merits of the case, and it presupposes our jurisdiction to do so upon this application.

In circumscribing the authority of this court under the provisions of the section of the Constitution, supra, it has been many times held by us that original jurisdiction as therein conferred would not be exercised, unless the respondent or defendant in the action was proceeding clearly without jurisdiction, or that great and irreparable injury might result to petitioner, and that he possessed no other adequate remedy. Weaver v. Toney, Judge, 107 Ky. 419, 54 S. W. 732, 21 Ky. Law Rep. 1157, 50 L. R. A. 105: L. & N. R. R. Co. v. Miller, 112 Ky. 464, 66 S. W.

equacy of the remedy by appeal was made in that case as is now being made by petitioner. In denying the efficacy of the objection this court in that case said:

"To give such a contention weight, however, it would have to be assumed that the decision of the suit upon its merits would be adverse to the petitioner, and that the decision of this court would be favorable to it. Besides, if such a result should come to petitioner, it would only be in the same situation in which the law places every litigant laboring under similar conditions. It will be observed from the authorities above cited that it has for over a century been the established law in this state that although a litigant has not been brought properly before a trial court, so as to give that court jurisdiction of his person, and judgment goes against him, and he appeals to this court, if the judgment is reversed and the cause remanded he is considered to have waived the trial court, and such court then has jurisdicquestion of jurisdiction of his person by the tion of his person for all the purposes of the action. The same rule prevails in substantially all of our sister jurisdictions. The effect of it has never been considered or held as a prejudice to a litigant's substantial rights. So long as such principle is held to be sound law

result of it could not be reasonably held to be ments. From a decree for plaintiff, defenda threatened danger against the injurious re- ants appeal. Affirmed. sults of which there was no adequate remedy, such as to justify this court upon a speculation, that it would result injuriously to petitioner to interfere in his behalf by a writ of prohibition when we apply the doctrine to every other litigant."

Whatever may be thought of the soundness of the rule holding the defendant before the of the rule holding the defendant before the court after reversal for defective service, it is now too well established in this jurisdiction to be called in question, and since the rule applies to all litigants alike, with no discrimination in favor of any, we do not see where any constitutional right, either federal or state, of the petitioner is involved.

The court over which the respondent presides clearly has jurisdiction of the subject

matter of the Metcalfe suit. As to whether

John B. Lindsey, of Frankfort, for appellants. Guy H. Briggs, of Frankfort, for appellee.

THOMAS, J. In November, 1899, the common council of the city of Frankfort, a city of the third class, passed an ordinance providing for the improvement of Second street, Viding for the improvement of Second street, the west line of Logan street, by grading and between the east line of Conway street and ment provided for was to be "at the grade paving it with vitrified brick. The improveheretofore reported by the city engineer and and hereby established as the proper grade shown by profile now in the city clerk's office for said payment." The ordinance does not it has jurisdiction in that suit of the person referred to therein, but the proof shows that show what engineer established the grade of the petitioner is a question to be determin- it was D. M. Woodson. Shortly after the ed by that court upon the facts presented to it. It has jurisdiction to determine that question, of office, and the city council elected one R. A. passage of the ordinance Woodson went out and if it should commit error in doing so, Frazier to the office of city engineer, and he this court would have jurisdiction to review was in office when the contract for the imit upon appeal. This, under the doctrine of the opinion from which we have quoted, pre-contract that the work was "to be constructed provement was let. It is stipulated in the vents us from assuming jurisdiction upon this application and determining the merits of the question discussed, although the appeal would result in bringing the derendant before

the court upon a remand of the case if the judgment should be reversed.

Wherefore the motion for the writ is over

ruled, and the petition is dismissed.

(180 Ky. 807)

HERNDON et al. v. BRAWNER.*

(Court of Appeals of Kentucky. June 4, 1918.) 1. COURTS 90(4) STARE DECISIS-CONSTRUCTION OF STATUTE.

Where the highest court has placed a certain construction on a statute, such construction will, under the doctrine of stare decisis, be adhered to; it being competent for the Legislature to pass a statute conforming to the con

struction so given.

2. ABATEMENT AND REVIVAL 73-REVIVOR -LIEN FOR STREET IMPROVEMENT.

Where a contractor has brought suit against an abutting owner to enforce a lien for street improvements, and such owner has died, revivor is proper against the owner's heirs, but not against the administrator, since no personal judgment could be obtained against such

owner.

3. MUNICIPAL CORPORATIONS Cmm 562(3) STREET IMPROVEMENT - TAX- SET-OFF OR COUNTERCLAIM.

In a contractor's action to enforce a lien for street improvement against abutting property, the owner cannot counterclaim against the contractor and the city for damages caused by the construction of the improvement; the amount sought to be collected being in the nature of a tax.

Appeal from Circuit Court, County.

throughout and completed in every detail made therefor by R. A. Frazier, city according to the profile and specifications

engineer." In the advertisement for the let

ting of the contract it was stated that the by R. A. Frazier and were all filed in the city specifications for the work had been prepared clerk's office; but in fact he had neither made nor filed any specifications relating to any improvement of Second street, nor was the improvement ordered or made under any

plans or specifications filed by him, but the work was done under his directions, which in a few slight respects departed from Woodson's filed specifications. The appellee, Brawner, who was the plaintiff below, was the successful bidder for the work, and the contract entered into with him was "between W. S. Dehoney, mayor of the city of Frankfort, party of the first part, and Walter F. Brawner, party of the second part." The work was completed, reported to and accepted by the city council, and apportionment warrants were made out by the engineer against the owners of the property abutting upon the improvement. The contract provided that the city council should pay one-third of the cost of the work, and the property owners on either side of the street should each pay one-third thereof.

Miss Hallie Herndon owned property on the north side of the improved portion of the street, and her portion of the cost of the improvement, as apportioned and approved by the city council, was $667.29, and the Franklin plaintiff brought this suit against her on December 24, 1901, seeking to enforce his lien against her property for the amount assessed against it. A demurrer filed to the petition was overruled, followed by an answer, in

Action by Walter Brawner against W. C. Herndon and others to enforce a lien against abutting property owner for street improve

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

which many defenses were relied upon, and [ant, Miss Hallie Herndon, died, leaving the it was sought by counterclaim to recover appellants, W. C. Herndon, Susan M. Castle$1,500 against plaintiff as alleged damages man, and Lavinia H. Morgan, as her only to defendant's property, because of the con- heirs at law. On the 24th day of April, 1905, struction of the work in such manner as to there was an order entered in the cause, sugcause the water from the street to overflow gesting the death of the defendant and rethe sidewalk and run upon plaintiff's prop- viving the case against her above-mentioned erty, damaging a number of small frame heirs. After this a number of orders were business houses located thereon. This dam- taken in the case until 1911, when a plea in age was alleged to have been produced for abatement was filed upon the ground that only a distance of about 85 feet west from there had never been a legal revivor against Shelby street, and not along the entire length the defendant's heirs, nor had there been any of defendant's property. revivor against W. C. Herndon, one of the heirs, and the decedent's qualified administrator. This plea was overruled, and an amended answer, set-off, and counterclaim was offered, in which it was sought to recover against the city of Frankfort, as well as the plaintiff, the damages asserted in the original counterclaim, but the court declined to permit that pleading to be filed and upon a final trial of the cause on January 27, 1917, 15 years, 1 month and 3 days from the date of the filing of the suit, a judgment was rendered dismissing the counterclaim and ordering an enforcement of the lien upon the property for the assessment, with interest from the day it was made, and to reverse that judgment the defendants prosecute this appeal.

Among the defenses relied upon in the answer were that at the time of the filing of the suit all of Second street, between Conway and Logan, had not been completed according to the contract, although it was not denied but that the portion of it running in front of defendant's property had been completed; that the advertisement for the letting of the work did not conform to the terms of the ordinance because it did not confine the work between the east line of Conway street and the west line of Logan street, but said that it would extend from the west side of Conway street to the east side of Logan street; that the work was not done according to the grade established by the ordinance providing for the improvement, but that it was changed and altered by the mayor and city engineer as the work progressed; that the ordinance provided that the work should be guaranteed by the contractor for 5 years, which it was claimed was contrary to law and vitiated the contract; that the entire improvement extending the whole length of the street ordered to be improved had not been completed within the time specified by the contract; that the contract was not entered into by the city of Frankfort, but only by its mayor, W. S. Dehoney; that all parts of the street had not been improved according to the ordinance and according to the contract, because there was no brick pavement between the rails of the street car line in the center thereof and for 2 feet from the outside of the rails; that the contractor, Walter Brawner, had not filed with the board of public works the affidavit required by section 3444 of the Kentucky Statutes, being a part of the charter of cities of the third class, disclosing the names of all persons directly or indirectly interested in the contract, and stating that none of the parties interested in the contract, including himself, was forbidden by the charter of cities of the third class from entering into any contract with the city, and that the improvement was not an original construction of the street, but was in the nature of repair work and reconstruction.

As hereinbefore stated, a demurrer was filed to all of the answer, except the paragraph which contained the counterclaim against the plaintiff. The cause dragged its weary way

All of the defenses urged here, except the right to maintain a counterclaim against the contractor and the city for the consequential damages done to defendant's property because of the character of improvement, but not resulting from any negligent manner of doing the work, were relied upon and urged as defenses in the case of Lindsey v. Brawner, 97 S. W. 1, 29 Ky. Law Rep. 1236, which was a suit by the same plaintiff against an abutting property owner on the same side of Second street to subject his property to a lien for the apportionment of the price of the work assessed against it. The same contract for the same work was involved in that case as is involved in the instant one, but the property involved therein was one square west of that of the defendants here. It was held in that case, construing the same contract and passing upon the same defenses, that sections 3451, 3453, and 3458 of the Statutes, when construed together, allowed the contract to be made and entered into in the manner complained of, and when ratified and approved by the city council, as was done in this case, it to all intents and purposes complied with all the requirements of the statute giving a lien upon the abutting property to the contractor for the part of the contract price apportioned to it. It was also held in that case that the contract for the work was in reality one made by the city, although entered into by the mayor for the city, and that the fact that the space in the middle of the street occupied by the street railroad track was not paved

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