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entitled, as matter of law, to account in that court, the only way in which he can enforce the right is by peremptory mandamus. Although the order of the special term, denying the application for the writ, is silent as to the grounds upon which it is based, the order of the appellate division has made it clear that the refusal to grant the writ was upon the law, and not in the exercise of discretion. The case is, therefore, properly before us on this appeal."

It may be noted here that some courts regard some action, aside from the mere dismissal of the case for supposed lack of jurisdiction, a necessary prerequisite to an appeal, so that where the court has merely dismissed the case in this way mandamus will lie. Thus, the court in State ex rel. Smith v. Parker (1895) 12 Wash. 685, 42 Pac. 113, said: "In addition to this contention he raises a question as to jurisdiction to grant the relief prayed for in the petition, his contention in that regard being that this court has no jurisdiction to issue a writ of mandate to a superior court, excepting in aid of its appellate jurisdiction. But, even if we should concede this to be true, it would not, in our opinion, deprive us of jurisdiction to compel by such a writ a superior court to proceed in a cause to such a final determination as would authorize an appeal to this court. To compel it thus to proceed would be necessary to make effective the right of appeal. If this court has not the power to compel a superior court to proceed to the final determination of a cause, it would be within its power to prevent an appeal, for the reason that no appeal would lie until such court had taken action. Whether it be for this reason, or because of the provision of our Constitution which specially authorizes writs of mandate to issue from this court to state officers, or by reason of its supervisory jurisdiction, the authority to issue such writs has been often exercised and is well sustained by the practice in this court, in the Supreme Court of the United States, and in the courts of other states."

And where the superior court dismisses an appeal upon judging erroneously that the undertaking is insufficient, the plaintiff should have the order annulled by certiorari from the supreme court; and until this is done mandamus does not lie. Levy v. Superior Ct. (1885) 66 Cal. 292, 5 Pac. 353.

In State ex rel. Piper v. Superior Ct. (1906) 45 Wash. 196, 87 Pac. 1120, the court said: "Neither the application of the relator nor the transcript which accompanies the application shows that the court was asked to, or refused to, enter a judgment of dismissal of the action. If such judgment of dismissal had been made, an appeal would have lain from such judgment to this court, and such appeal would have been an adequate remedy. The petition and the accompanying record failing to show that the court refused to do any act, the omission of which would deprive the relator of her right to appeal, the writ cannot be allowed, and is therefore denied."

In State ex rel. Townsend Gas & E. L. Co. v. Superior Ct. (1899) 20 Wash. 502, 55 Pac. 933, the court, after commenting on some earlier cases in which the court had held that the writ of prohibition would not lie when there is another adequate remedy, said: "Since that time, however, many cases have been decided where the writ of prohibition issued where the court was proceeding to act without jurisdiction, and a writ of mandate has issued where the court refused to take jurisdiction which rightfully belonged to it, without regard to whether an adequate remedy existed by appeal or otherwise. We have become satisfied, however, that this practice is not in consonance with the best authority, and is not conducive to a careful and close investigation of causes by this court. When causes are regularly appealed, they are presented to this court by briefs, which, as a rule, are carefully prepared by the attorneys in the cases, and the court has an opportunity to examine them with more deliberation than when submitted, as they are under the practice

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(166 Ky. 622, 179 S. W. 592.)

Mandamus to compel taking of jurisdiction

lack of service.

1. Mandamus will not lie from the supreme court to compel a trial judge to take jurisdiction of a case upon service of process which, after consideration, he has erroneously decided to be insufficient, and which he has entered an order to quash, although no provision is made for an appeal from the order, so that there will be no remedy if the writ is not awarded. [See note on this question beginning on page 610.]


when lies.

2. A writ of prohibition may be issued by an appellate court against an inferior court which is attempting to act outside of its jurisdiction, or where

the writ of prohibition is the only ad-
equate remedy to which the party ap-
plying therefor can resort.
[See 22 R. C. L. 4.]

PETITION for a writ of mandamus to compel the defendant judge to try an action pending in his court, brought by petitioner to recover damages for alleged insult and maltreatment sustained by her while traveling on a vessel of the defendant steamship company. Denied.

The facts are stated in the opinion of the court.

Messrs. Pryor & Castleman, for plaintiff:

There being no appeal from the order in the lower court quashing the service of summons (Winn v. Carter Dry Goods Co. 102 Ky. 370, 43 S. W. 436; Wearen v. Smith, 80 Ky. 217), a writ of mandamus from this court is the appropriate and only remedy provided by law for obtaining a trial of the case on its merits, if the summons was properly served.

Hoke v. Com. 79 Ky. 567; Cassidy v. Young, 92 Ky. 227, 17 S. W. 485; Com. v. Newell, 114 Ky. 419, 71 S. W. 4; Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; State ex rel. Bayha v. Philips (State ex rel. Bayha v. Kansas City Ct. of Appeals) 97 Mo. 331, 3 L.R.A. 476, 10 S. W. 855.

The summons was properly served, and vested the circuit court with a jurisdiction of the parties which this

court should require it to exercise, regardless of the ruling of the lower court on the motion to quash the service.

International Harvester Co. v. Com. 147 Ky. 655, 145 S. W. 393; Johnson v. Westerfield, 143 Ky. 10, 135 S. W. 425; Morris v. Rehkopf, 25 Ky: L. Rep. 352, 75 S. W. 203; Central of Georgia R. Co. v. Eichberg, 107 Md. 363, 14 L.R.A. (N.S.) 389, 68 Atl. 690; Cincinnati, P. B. S. & P. Packet Co. v. Malone, 29 Ky. L. Rep. 44, 92 S. W. 306; Good Roads Machinery Co. v. Com. 146 Ky. 690, 143 S. W. 18.

Messrs. Humphrey, Middleton, & Humphrey for defendant.

Settle, J., delivered the opinion of the court:

The plaintiff, Rosalee Speckert, seeks in this action a writ of mandamus to compel the defendant,

Charles T. Ray, judge of the Jefferson circuit court, common pleas branch, fourth division, to try an action pending in his court, wherein she is plaintiff and the Old Dominion Steamship Company is defendant; the writ being asked in this court. The case has been subhas been submitted on a general demurrer filed to the petition by the defendant, which seems to present all questions raised by the parties.

It appears from the averments of the petition, and is admitted by the demurrer, that the action pending in the Jefferson circuit court, of which the defendant, Charles T. Ray, is the presiding judge, was brought to recover of the Old Dominion Steamship Company damages for alleged insult and maltreatment sustained by the plaintiff at the hands of its servants and employees while a passenger on one of its steamships sailing from Norfolk, Virginia, to New York, of which they were in charge. It further appears from the petition that the plaintiff, in August, 1914, purchased of the Louisville agent of the Chesapeake & Ohio Railway Company a ticket from Louisville to New York, which entitled her to be carried as a passenger from Louisville to Norfolk, Virginia, over the line of the railway company and from Norfolk to New York on the steamship of the Old Dominion Steamship Company. Two summonses were issued against the Old Dominion Steamship Company upon the filing of the petition, one of which was served upon R. E. Parsons, who is the district passenger agent of the Chesapeake & Ohio Railway Company at Louisville. The other was served upon C. A. Pennington, the superintendent of terminals of the Louisville & Jeffersonville Bridge Company, which terminals are used by the Chesapeake & Ohio Railway Company at Louisville. The return upon the first summons was as follows: "Executed December 29, 1914, on Old Dominion Steamship Company by delivering a copy of the within summons to Robert E. Parsons,

agent of said company, he being chief officer found in this county at this time, he refusing to accept same. C. J. Cronan, S. J. C., by E. D. Waters, D. S."

The return upon the second summons was as follows: "Executed January 2, 1915, on defendant Old Dominion Steamship Company by delivering a true copy of the within summons to C. A. Pennington, the chief agent of the Chesapeake & Ohio Railway Company found in this county, and which said railway company, as the agent of said defendant, in charge of its business in this county. C. J. Cronan, S. J. C., by C. Mueller, D. S."

The Old Dominion Steamship Company entered its special appearance and made a motion to quash the return upon each of these summonses, and in support of the motion filed the affidavits of Parsons and Pennington. Plaintiff, as against the motion, filed her own affidavit. affidavit. The circuit court, after considering the motion to quash, sustained it, to which ruling plaintiff excepted. Thereafter the plaintiff entered a motion to set aside the order quashing the return on each summons, and that the case be set on the docket for trial. This motion was also overruled by the circuit court, to which ruling the plaintiff excepted. No. further orders were entered or steps taken in the


The affidavit of Parsons contains the statements that the Chesapeake & Ohio Railway Company operates passenger trains from Louisville to Norfolk, Virginia; that the Old Dominion Steamship Company is a nonresident corporation, separate and distinct from the Chesapeake & Ohio Railway Company, and that it operates a steamship line over which passengers and freight are transported from Norfolk, Virginia, to New York; that he (Parsons) is not, and was not at the time the summons was served on him, the agent in Kentucky of the Old Dominion Steamship Company, and that it has never had any officer or

(166 Ky. 622, 179 8. W. 592.)

agent in Kentucky; that in selling tickets like that purchased by the plaintiff, the Chesapeake & Ohio Railway Company acts for itself as far as the transportation on its line is concerned, and sells tickets for the connecting carrier, Old Dominion Steamship Company, as far as the transportation of passengers on the line of the latter is concerned; and that each line acts independently in the matter of such transportation. The affidavit of Pennington contains the statements that, though the terminals of the Louisville & Jeffersonville Bridge Company, of which he is the superintendent, are used by the Chesapeake & Ohio Railway Company at Louisville, that company bills freight from Louisville to New York over the Chesapeake & Ohio Railway to Newport News and over the Old Dominion Steamship Company from Newport News to New York, according to the usual custom of freight transportation; that each company acts separately and not jointly in regard to such traffic; that he (Pennington) is not, and has never been, the agent of the Old Dominion Steamship Company in this state; and that company has never had an officer or agent in this state.

The counter affidavit of the plaintiff was to the effect that in purchasing the ticket in question from R. E. Parsons, he held himself out as the agent in this state of the Old Dominion Steamship Company; that as the agent of the Chesapeake & Ohio Railway Company he kept in the office of that company at Louisville pamphlets and advertising matter of the Old Dominion Steamship Company; and that the Chesapeake & Ohio Railway Company solicits freight and passenger business for the Old Dominion Steamship Company; moreover, that, subsequent to the infliction upon her by the servants of the latter company of the injuries complained of in the petition, Parsons, acting for it, entered into negotiations with her looking to the settlement of her claim for damages.

After the filing of the affidavit of the plaintiff there was filed by the defendant a supplemental affidavit of Parsons, in which it was denied that he had any negotiations with plaintiff regarding her claim for damages, or that he was authorized by the Old Dominion Steamship Company to negotiate with her; and stated that all railroads kept pamphlets in their ticket offices, showing their connecting lines all over the United States, the time of arrival and departure of trains, etc.; that when a person, desiring to go to New York, applies at the ticket office of the Chesapeake & Ohio Railway Company, the agent of that company solicits such person to travel over its line as far as Norfolk, Virginia, and represents at the time that it has a connection at Norfolk for New York, via the Old Dominion Steamship Company, and that a through ticket from Louisville to New York by the steamship company's line can be obtained in the Louisville office of the Chesapeake & Ohio Railway Company, and also freight transportation.

It does not seem to be claimed by the plaintiff that the service of process on Pennington is good, but it is insisted for her that the service on Parsons is valid and sufficient to give the circuit court jurisdiction in the action as to the Old Dominion Steamship Company. The two questions presented for decision by the record are: (1) Whether the writ of mandamus will lie to compel a judicial officer to decide that service of process, which he had already adjudged insufficient, is good; (2) whether, if mandamus is the proper remedy, the service of process had on the defendant Old Dominion Steamship Company is good, and therefore sufficient to give the circuit court jurisdiction to entertain and try the action.

It is not claimed in the instant case that the defendant judge refused to act at all. On the contrary it is conceded that he entertained the case for the purpose of consid

ering the single question presented to him, that is, whether the service of process was good or bad, and that he did decide it; and, the decision being that the service was not good, an order was entered quashing the return. The only meaning of the plaintiff's complaint is that the decision was adverse to her interest, and therefore incorrect, for which reason she asks the writ of mandamus to compel a different decision of the question, and one that will be favorable to her. In other words, what the plaintiff now seeks is not that the judge of the circuit court be required to take action, but that he act in a manner that will deprive him of the discretion with which he is clothed as a judicial officer by the law.

Section 110 of the Constitution provides that the court of appeals shall have power to issue such writs as may be necessary to give it general control of inferior jurisdictions. We have never held that the above provision of the Constitution authorizes this court to exercise the power of determining questions that necessarily belong to courts of original jurisdiction and over which they have complete control, subject to an appeal to this court, where an appeal is allowed. The writ of mandamus cannot be issued to compel an inferior court to decide a matter in any particular manner. The chief office of the writ, as applied to courts, is to compel action by them; but where, as in the instant case, the petition of the plaintiff alleges that the court acted, but acted in a

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formance of a ministerial act, but not to control discretion. It may also issue against a tribunal, or one who acts in a judicial capacity, to require it or him to proceed, but the manner of proceeding must be left to his or its discretion. If the case here presented were one in which the fiscal court of Campbell county had refused to act at all, the writ would lie to compel it to do so; but it would have to be left to its discretion to consent or refuse its consent to the appointment to the office of county road engineer of the person named by the county judge therefor. But such is not the case; the fiscal court did act, and a majority of its members, by voting, refused to consent to the appellant Traver's appointment to the office of county road engineer; this being true, they cannot again be required to vote upon the question whether they will consent to the appointment of Traver."

There cannot be found a clearer and more concise statement of the doctrine in question than is contained in the following excerpt from the opinion in Louisville v. Kean, 18 B. Mon. 9: "But the doctrine seems to be well settled that, when the inferior tribunal or the subordinate public agents have a discretion over the subject-matter, that discretion cannot be controlled by mandamus, although it may have been improperly exercised. If there be a refusal to act upon the subject, or to pass upon the question on which such discretion is to be exercised, then the writ may be used to enforce obedience to the law; but when the question has been passed upon, it will not be used for the purpose of correcting the decision." Firemen's Pension Fund v. McCrory, 132 Ky. 89, 21 L.R.A. (N.S.) 583, 116 S. W. 326.

One of the later cases on this question is that of Com. v. Weissinger, 143 Ky. 368, 136 S. W. 875, in the opinion of which it is said: "The only question presented by the record is, did the Jefferson county court have power to vacate and set

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