xt73bk16mf8w_486 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [343] D.C. Miller v. Snow Church Company, Wolf Circuit Court text [343] D.C. Miller v. Snow Church Company, Wolf Circuit Court 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_48/Folder_9/0848.pdf section false xt73bk16mf8w_486 xt73bk16mf8w _p ,
WOLFE CIRCUIT COURT.
D. C. MILLER, PLAINTIFF.
BRIEF OF "SHOW CHUFLCH 8c CO‘TPAITY"
VS:-
ON PLEA IN ABATEMEHT.
SNOW-CHURCH COHEAHY, DEFENDANT. _
_‘_-....M
This is an action instituted by D. C. Miller against
"Snow-Church Company". Process was issued upon same, direct—
ing the sheriff to summons"Snow—Church Company" to answer.
This process was sent to the Sheriff of Jefferson County,
which reached him on November 4th, 1912, and on November 6th,
1912, he executed it upon W. T. Godfrey, President of the
"Snow Church & Company", the return on the summons reading
as follows:-
EExecuted November 6th, 1912, on "Snow—

Church Company" by delivering a true copy of

the within summons to W. uodshon, President

of said 00mpany, he being chief officer found

in this county at this time.

A. .I'-Io Emler, SoJ-Co
By, E. D. Waters, D. S."

There is no "W. Godshon," but the summons was ac—
tually executed upon W. T. Godfrey, President of "Snow Church
& Company".

"Snow Church & Company" have now filed their spe-
cial demurrer or plea to the jurisdiction and plea in abate-
ment, in Which they set forth the fact that W. T. Godfrey
is the President of the "Snow Church & Company" and that the
principal office and place of business of "Snow Church &
Company" is Louisville, Kentucky, that it is a corporation

 . _2_ ‘
created under and.pursuant to the laws of Kentucky, but there
is no such corporation as "Snow-Church Company" known to it,
and that W. T. Godfrey is not the President of "Snow-Church
Gonnany", and they filed this plea Without entering their
appearance to the action, without admitting the jurisdiction
of the Court of "Snow Church & Company” or the subject matter
of the action, and without pleading to the merits of the ac—
tion, and in support of that plea, they filed the affidavit of
W. T. Godfrey.

As the case now stands D. C. Miller has sued "Snow—
Church Company", serving a summons upon W. T. Godfrey, Pres—
ident of "Snow Church & Company", and the sheriff's return '
says that he has summoned ”Snow—Church Company" to answer, by
executing the summons upon W. T. Godfrey, who denied that he
is the presid=nt of "Snow—Church Company", and sets up what
conpany he is president of, and gives the proper name and
location of said COunany and thus conforms to the requirements
of our Code.

It is the contention of "Snow Church & Company"
that they are not before this Court and that they can not be
brought before this Court in any way, except by a suit prop~
erly instituted against them.

‘11 the case of the Louisville 80 Nashville Railroad
Co. v. Hall, 12 Bush, 151, Hall sued a corporation which
he styled the "Louisville & Nashville and Great Southern
Railway Company." The summons was executed upon Albert Fink,
who was designated by the sheriff as the Vice President of
that corporation. On the calling of the case defendants, by

 N ..
-3- -

' their attorney, moved the Court to quash the sheriff's return
on the process, at the same time filing Fink's affidavit, in
which he stated that there was no such corporation, known to him,
and that he was not the agent of any suCh corporation.

This motion was overruled, but the reason for so doing was
that sink, in filing his motion to quash, did not comply with
the Code, giving the true name of the corporation of which he
was vice president: and in that case the court quoted from Chitty,
Volume 1, page 447, as follows:-
"At the commonlaw where the defendant was sued

by the wrong name he might plead that fact in abate-

ment, but to make his plea good he was bound to give

the plaintiff a better writ in the future by disclos—

ing his true name.”
It will be noticed that Fink failed to do this in
that case and our Court of Appeals said:-
"The answer of the appellant, (Fink) being de-
fective, the demurrer thervto was properly sustained;
. and if it failed to plead further and failed to dis—
close its true corporate name, it can not complain etc."

In the case at bar we have overcome all of those ob—
jections by disclosing the true name of the corporation of
which Mr. W. T. Godfrey is President.

In L. & N. E. R. Co. v. Bloyd, 55 S. W. 694, the
appellant was sued as the "L. & H. R. R. Co." Our Court of
Appeals said:—

"The appellant company, Louisville & Hashville
~ Railroad Company, was improperly sued as the "L. &

H. R. R. Co." and its plea in abatement ought to have

been sustained."

The case of University of Louisville v. Hammock,

106 S. W.219, decided December 15th, 1907, is one in which

the University of Louisville was sued for personal injuries,
' and one of the grounds for reversal was that it was not

sued in its true corporate name. Our Court of Appeals, in

 -4-
passing upon that, said:-

"Obviously appellant was sued and judgment
recovered against it as the "University of Louisville"
when its true corporate name was and is the "Pres-
ident and Trustees of the University of Louisville,"
but the misnomer can not be objected to for the first
time on appeal. It should have been made in the ,
circuit court by answer or affidavit in the nature of
a plea in abatement, setting forth the misnomer and
disclosing the true name of the defendant. When this
is done, the plaintiff may amend his petition and then
proceed. The record shows that the corporation sued
was the same corporation that owned and controlled
the hospital in which appellee sustained her injuries;
and as it failed to obiect in the circuit court to the
imnroner corporate name viven it or to disclose its
true corborate name and there made defense on the merits,
it is estopped to complain that judgment went against
it in the name by which it was sued."

It will thus be seen that we have complied with the
requirements of this decision in every respect. We have ob—
jected in the lower court, have filed our plea in abatement
and have disclosed our true corporate name and our residence.

In the case of leathermon v. Times Company, ll 8. W.

12, the Court of Appeals said:—

"Where a person against whom a cause of action
exists, is sued by the wrong name, and a summons is
served upon him, though in his wrong name, and he
appears and files an answer, though in the name by
which he is sued, he is thereby effectually brought
before the Court. Thus, if a person having a cause
of action against A., sues him in the name of E., and
A. is served with the process in the name of B. and
answers in that name, he thereby adopts the alias and
effectually brings himself before the Court."

We admit the above to be the true doctrine but in our
case we have refrained from doing what the Court says if
done brings the party before the Court. We have been sued in
one name and the process served upon us in that name, but
instead of answering and assuming that alias we have come
in by pleaing in abatement, denying the adoption of that
alias, disclosing our true and corporate name, and our prin—
cinal office. Therefore, from the above decision it is

 -5-

clear that if we were sued in the wrong name and set it up by
plea in abatement, then the Court must abate the action as to
us and let plaintiff institute his suit against the proper
party.

Heckman's administrator v. Louisville & Nashville
Railroad Company, 4 S. W. 542, was a case in which plaintiff
sued the Louisville, Cincinnati & Lexington Railway Conpany.
Summons was issued to Jefferson County and the return read as
follows:—

"Executed upon the Louisville, Cincinnati &

Lexington Railway Company be delivering a true

copy of the within to H. H. Smith, Vice President,

he being the chief officer in this County."

In March, 1885, an answer was filed under the same
caption exactly, and signed by Barnett, Eoble & Barnett. Th$s
answer contained simply a traverse by the defendant of the al~
legations in the petition. All the motions made in this case
by the plaintiff were directed against the Louisville, Cin—
cinnati & Lexington Railway Company, and the caption of all
the orders made and entered on record was the same as the
petition until January 21st, 1885, when the plaintiff moved
to file an amended petition. In that amendment the plaintiff
stated that, by mistake, the defendants were st led in the
caption of the petition "Louisville, Cincinnati & Lexington
Railway Company" when is should, and was intended to be,
"Louisville & Nashville Railroad Company" which is the cor-
rect name of the defendant, and was intended to be sued in the
action and prayed that the defendant be requifed to defend
by its correct name of the Louisville & Nashville Railroad
Company, and for judgment against it as prayed for in the
original petition. The Louisville & Nashville Railroad Com-

 ~6-
pany resisted this motion and the Court said:-
"Though a party against whom a cause of action
exists may be sued therefor by the wrong name, yet

if the Summons be actually served upon him, and he

a seals and files an answer, it seems to us he is

effectually before the Court, as much a party to the

action and concluded by a judgment rendered against him
as if his name had been entered in the caption of the
petition, and in the summons issued by the Clerk."

The above is correct, but you will notice that in
that case the defendant had answered and had filed no plea '
in abatement, but in the case at bar the correct defendant is
filing a plea in abatement and is resisting any action against
it through an alias.

The Court, farther along in the same opinion, quoted
approvingly from First Eational Bank of Baltimore, v. Jaggers,
51 Md. 455 as follows:-

"There is no doubt that when a party is sued by

the wrong name, and he anpe rs to the suit, and does

not plead the misnomer in abatement, and judgment is

rendered against him in the erroneous name, execution

may be issued upon it in that name, and levied upon

the property and effects of the real defendant; but

there is some conflict in the decision whether the

same result will follow if he does not appear, and the t

judgment is obtained by default. The weight of au-

thority is, however, that this makes no difference:

and if the writ is served on the party intended to be

sued, and he fails to appear and plead in abatement,

and suffers judgment to be obtained by default, he is

concluded, and in all further litigations may be con-

nected with the suit or judgment by proper averments."

The Court goes on and decides from the proof
that the Louisville & Nashville Railroad Company had enter—
ed its appearance to the suit of Heckman v. Louis ville,
Cincinnati & Lexington Railway Company, and therefore,
having entered its appearance, it was bound by the judg—
ment, the Court saying:—

 -7_

"As this record stands, we are satisfied the
Louisville & Nashville Railroad Company caused the
answer to be filed, and its appearance to the ac-
tion entered."

It will thus be seen that the Court in this case
decided from the proof that the Louisville & Nashville
Railroad Company had entered its appearance as a defendant
to the action, and virtually assumed the alias, Louisville,
Cincinnati & Lexington Railway Company, by which it was sued.

In Thompson on Corporations, Third volume, Section
5188 and 5189, under the heading "A Misnomer Must be Plead In
Abatement" the text reads:-

"The misnomer of a corporation, like that of
an individual defendant, must be taken advantage
of at the first Opportunity by plea in abatement.

A misnomer unless plead in abatement may be dis-

regarded."
and in support of that doctrine it cites a dozen or more
cases from different states, and continuing the text says:—

"A corporation sued by a wrong name may appear
especially and file an affidavit of defense; but it
must show that the corporation is using a name dif—
ferent from that by which it was sued. It has been
said that the sheriff's return of service on a cor-
poration not correctly named, should not be quashed
on an affidavit which did not show the true name; that
the proper method was to take advantage of the defects
by a plea in abatement. and the misnomer has been
held to be grounds for non—suit."

It will be observed that we have proceeded through-
out in this motion in accordance with the doctrine as thus
announced by Thompson. In Section 5189 he says:—

"n- l 0‘ s t b at ‘l'~ ’ t‘ t f

re ru 6 seem- o e 80 a0 isheo ha ynere a
corporation is sued in the wrong name, and it appears
only for the purpose of objecting to the jurisdiction,
and the petition is then amended so as to state the
name correctly, the case can not then proceed to judg—
ment in the name stated in the amended petition."

This we take is the true annunciation of the law

on this subject and we contend that "Snow Church & Conoany“
can not be sued as the “Snow-Church Company" and no judgment

 —8— _
can be entered against the "Snow Church & Company "in the
fact of our plea in abatemont filed herein, and that it will
be necessary for the plaintiff, if he desires to maintain
this action against "Snow Church & Company", to institute
the suit against that corporation.

We believe that the authorities, not only of Kentucky,
but bfi the other states in the Union, are practically unanimous V
in support of this proposition and we respectfully
submit this brief.
Jany. 16, 1915.

(Signed) B. E. Jouett,
Atty for Snow Church & Co.