2. Where final judgment dissolving an injunction was rendered December 18th, and 20 days was given appellant in which to apply to the court of appeals to reinstate the injunetion pending the appeal, a motion filed in the clerk's office of the court of appeals January 6th, but not entered in court until January Sth, was too late.

Appeal from circuit court, Marion county. "To be officially reported."

Motion to set aside order reinstating injunction. Granted.

continuing the injunction during the pendency of the appeal upon such terms as to bond or otherwise as may be proper for the security of the rights of the other party. It is provided that either party, within 20 days after the entry of such an order, may take a transcript of the record, or parts thereof appertaining to the injunction, and upon reasonable notice in writing to the opposite party to move the court of appeals, or, if in vacation, any judge thereof, to revise the or

GUFFY, C. J. The appellants, Moses Ray and others, trustees of the African Baptist Church, instituted suit in the Marion circuit court against Frank White, etc., the object of which seems to have been to enjoin the defendants from preventing the plaintiffs from exercising certain rights in and to the house of worship belonging to said plaintiffs, and to recover $1,000 damages for alleged illegal acts committed by the defendants in respect to said church property. Such proceedings were had that on the 18th day of December, 1901, the circuit court adjudged that plaintiffs' petition be dismissed, and that the order of injunction be dismissed and dissolved. It further provided that the plaintiffs should have 20 days in which to apply to the court of appeals, or a judge thereof, for a reinstatement of the injunction therein dissolved. To the order of dismissal and dissolution the appellants excepted, and prayed an appeal to this court, which was granted. On the 6th of January, 1902, the appellants filed a transcript of said record in the clerk's office of the court of appeals, and on January 6th filed in the clerk's office a motion for a reinstatement of said injunction, which motion appears to have been entered on the 8th day of January, 1902, and afterwards sustained by the court, and an order to that effect made. On the 23d of January, 1902, the appellees entered a motion to set aside said order of reinstatement. The order of reinstatement was made without the attention of the court being called to the absence of any notice to appellees of the intention of appellants to make such motion. It is insisted for appellees that no motion to reinstate the injunction could be legally made or considered by this court unless appellees had been notified thereof, and section 747 of the Civil Code of Practice is cited in support thereof. It is provided in said section that the provisions of the Civil Code concerning supersedeas on appeal shall not apply to judgments granting, modifying, perpetuating, or dissolving an injunction. It is further provided that when an appeal shall be taken from any judgment granting, modifying, perpetuating, or dissolving any injunction, the court which rendered the judgment may, in its discretion, if the ends of justice so require, at the time the appeal is taken, make an order suspending, modifying, or

how far the injunction shall be suspended, modified, or continued pending the appeal. It is also provided that pending such application, but not longer than for 20 days, the status existing immediately before the entry of the judgment appealed from shall be maintained, and the lower court shall so provide in the judgment upon the request of either party. It will be seen from the record in this case that the court upon final judgment in this case gave to the appellants 20 days to make an application, as provided in the section supra. It will also be seen from this record that, although filed on the 6th of January, 1902, the motion was not in fact entered until the 8th day of January. Furthermore, no notice appears to have been given to the appellees.

It therefore follows that the order of the court reinstating the injunction should not have been made, and the same is now set aside, and held for naught, and the motion to reinstate the injunction is now overruled.

GREENWICH INS. CO. v. LOUISVILLE & N. R. CO. et al.1

(Court of Appeals of Kentucky. Feb. 4, 1902.) RAILROADS-LICENSE TO CONSTRUCT BUILDING ON RIGHT OF WAY-CONDITION AGAINST LIABILITY FOR LOSS BY FIRE-INSURANCEMISTAKE AS TO TITLE.

1. Where a railroad company grants permission to another to construct a building on its right of way on condition that it shall not be liable for loss by fire from its locomotives, the condition is valid, and neither the owner of the building nor an insurance company which has paid the loss can recover of the railroad company for the loss of the building by fire unless there was wanton or willful negligence on the part of its servants.

2. One who was permitted by a railroad company to construct a building on its right of way upon condition that the company should not be liable for loss by fire had, notwithstanding that condition, an insurable interest in the property, and an insurance company from which he procured insurance thereon, having paid the loss, cannot recover the money paid on the ground that it was paid in ignorance of the terms of the lease and under a mistake of fact, there being no allegation that the mistake was mutual.

Appeal from circuit court, Marion county. "To be officially reported."

Action by the Greenwich Insurance Company against the Louisville & Nashville

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

Railroad Company and the Frank Fehr Brewing Company to recover damages for loss by fire. Judgment for defendants, and plaintiff appeals. Affirmed.

Lafe S. Pence, for appellant. John McChord, for appellee Frank Fehr Brewing Co. W. C. McChord, Lisle & McChord, and Edward W. Hines, for appellee Louisville & N. R. Co.

O'REAR, J. The New South Brewing & Ice Company was granted the privilege by appellee the Louisville & Nashville Railroad Company to build a cold storage house upon the latter's right of way near Lebanon Station. Among the conditions of the lease was the following: "And whereas, such use of the right of way or the lands of said railroad company is solely at the instance of said brewing and ice company, and for its accommodation, and without charge on the part of said railroad company; and whereas, said railroad company would not give its permission or consent to the erection or use aforesaid on its said right of way or lands except upon the express condition that: That, in consideration of the premises, said railroad company, its officers, and agents, or other companies operating its railroad, be released and held harmless from, and indemnified against, all claim or demands of said New South Brewing & Ice Company or others on account of any injury or loss whatever to said house or its contents, by reason of fire from locomotives, of from any cause whatsoever." This contract was subsequently assigned by the consent of the railroad company to the Frank Fehr Brewing Company, who assumed it subject to the conditions above quoted. By the negligence of appellee railroad company's employés a fire is alleged to have occurred, caused by sparks from its locomotives. The fire originated in a building not on appellee's right of way, and owned by another not a party to the above contract nor to this suit. The cold storage house was burned in the same conflagration. It had been previously insured by appellant, who paid the owner for the loss, and brought this action against the railroad company, claiming it was entitled by subrogation to recover as the lessee, the owner of the cold storage house, would have been. This last statement we accept as true. The question is whether under the contract above quoted appellee railroad company was exempt from damages to the building in question by reason of fire caused by its negligence. The circuit court held that it was.

It is argued for appellant that the railroad company cannot contract against the consequences of its own negligence, as to do so is not only against public policy, but prohibited by section 196 of the constitution, which in part provides, "No common carrier shall be permitted to contract for relief from

its common law liabilities." The court is of opinion that appellee railroad company is not liable for the destruction or damage to the building under the contract quoted, except for willful or wanton negligence of its servants. For mere carelessness, however gross, short of wantonness or willfulness, it will not be liable. It is a matter of common knowledge, and from the language employed in this case we may assume was known to the parties herein, that by the aid of the best contrivances so far known and in use it is impossible to altogether prevent fire caused by sparks and cinders from locomotives. Of course the nearer the railroad track a conbustible object may be the greater is the danger to which it is subjected from this source. Railroad operators are held liable for damages to the public occasioned by their negligence in failing to provide suitable spark arresters for their locomotives in so far as they reasonably can be had. The company is under no obligation as a common carrier to the public or any member of the public to permit them to erect on its right of way any sort of structure, and if one should erect such building on the company's right of way the company would owe no duty to its owner, save to refrain from willfully or wantonly destroying it. The doctrine upon which the law and the section of the constitution above relied upon are based, prohibiting common carriers from contracting against their own negligence by their servants, is, as suggested, that to do so is against public policy. They can operate their trains only by the employment of servants. To permit employers to contract with their servants that they will not be liable for their negligence, by which an inducement would be offered for care lessness towards the lives of so many people, could not be and is not supported in the law. Common carriers are required to transport passengers and freight, the former with the utmost, the latter with ordinary, care looking to their safety. So passengers are compelled frequently to travel by railroad or not at all, and freight is required to be shipped by that means or not at all. The common carriers, by the conditions under which they exist, and to some extent by operation of the law, have the practical monopoly of this business. They are not upon an equal footing with their customers in the matter of making such contracts, as where they undertake to secure in advance indemnity against the result of their own negligence. Such contracts are clearly against the public policy. But in the case at bar no such necessity exists to the owner of the building that he should erect it upon the company's right of way, nor is the company compelled under any state of case to permit him to do so. It is under no obligation to extend its liabilities. It certainly could not be expected to voluntarily do so. Therefore the parties, when they

come to contract with reference to the location of such a building, are dealing at arm's length, and upon an equal footing. The railread company can well say, "While we are unwilling to assume any additional risks, we are willing to suffer you for your own convenience to build this house upon our right of way within the zone of recognized and pecullar danger from fires; but it must be understood that, if you accept the privileges of this grant, you alone must bear its burdens and casualties." It is not so much that the railroad company contracts against its own negligence as that the brewing company agrees to alone bear all risks from fire. It receives a consideration for doing so. We cannot see that the public are in any wise affected by such a contract, nor can they be. Hartford Fire Ins. Co. v. Chicago, M. & St. P. R. Co., 17 C. C. A. 62, 70 Fed. 201, 30 L. R. A. 193; Id., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84; Griswold v. Railroad Co. (Iowa) 53 N. W. 295; Stephens v. Southern Pac. Co. (Cal.) 41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17; King v. Same (Cal.) 41 Pac. 786, 29 L. R. A. 755.

Plaintiff also joined the Frank Fehr Brewing Company as a defendant, and by an amended petition claimed that defendant had misrepresented its title to the plaintiff, and that plaintiff had paid the insurance under a mistake of fact; that it did not know that the brewing company had executed a lease with the railroad company by which the brewing company assumed the dangers incident to the extraordinary risk of fire from the near exposure of the building to the passing locomotives. It appears that the brewing company had an insurable interest in the property, and it is not alleged that the mistake was mutual. We are of opinion that the demurrer to the petition should have been sustained.

The judgment dismissing the case as to both of the defendants is affirmed; the whole court sitting.

FIRST NAT. BANK OF CARLISLE v. LEE et al.1

(Court of Appeals of Kentucky. Feb. 4, 1902.) TRUSTS AND TRUSTEES-POWER OF TRUSTEE TO SELL AND CONVEY-LIFE TENANT NOT ENTITLED TO INCREASE IN VALUE AS "PROFITS."

1. A trustee with title, and invested by the instrument creating the trust with power to change the investment, has the right to sell and convey the title to the trust property.

2. Where a testator provided by his will that his wife should have the interest and profits annually accruing from the sum of $4,000, "which she may loan out or otherwise invest from time to time as she may deem best," and after her death to descend to testator's daughter in trust, "the interest and profits to be paid

Reported by Edward W. Hines, Esq., of the Frankfert bar, and formerly state reporter.

to her annually" by a trustee appointed by the proper tribunal, and at her death to go to her surviving children, the daughter's trustee, after the widow's death, had the same power to change the investment which the widow had.

3. Property in which the $4,000 was invested having sold for $7,000, the daughter, as life tenant, was not entitled to the increase in value as "profits," but the entire proceeds should have been reinvested, and the entire income therefrom paid to her.

Appeal from circuit court, Nicholas county.

"Not to be officially reported."

Action by J. W. B. Lee, trustee of Mary E. Lee, against Mary E. Lee and others, seeking a confirmation of plaintiff's action in selling the trust property for reinvestment. Judgment decreeing specific performance of contract, and the First National Bank of Carlisle, the purchaser, appeals. Reversed. appellant. S.

Winfield Buckler, for Holmes, for appellee trustee. C. W. Wood, for appellee E. W. Lee.

O'REAR, J. The last will of Harvey Wilson devised $4,000 in trust for the use of his daughter, Mrs. Mary E. Lee, for her life, then to her surviving children. The provision is as follows: "It is my will and desire, after the payment of my funeral expenses and just debts, that my beloved wife, Amelia Wilson, shall have the interest and profits annually accruing from the sum of $4,000, which she may loan out or otherwise invest from time to time as she may deem best, but in no event to use any of the principal. After the death of my said wife it is also my will that the said sum of four thousand dollars shall descend to and belong to my daughter, Mrs. Mary E. Lee, in trust, the interest and profits of which I wish to be paid to her annually by some reliable and trustworthy person that the proper tribunal may appoint for that purpose, and at the death of my said daughter I wish the principal or said sum of $4,000 to be equally divided between her surviving children." The $4,000 in question was invested by a trustee appointed for Mrs. Lee and her children by the proper tribunal. With it he purchased a brick business house and lot in Carlisle, Ky., paying for it $4,300, $300 being contributed by her husband. The title was taken to the trustee and his successors in trust for the use and benefit of Mrs. Lee for life, with remainder to such of her children as may survive her, "as provided by the will of said Harvey Wilson, deceased." The property has come into demand for a peculiar use, giving it for the time an extraordinary selling value. The trustee contracted to sell it to appellant at the price of $7,000,-fully its value in any view of the situation. He then brought this suit in the circuit court of Nicholas county against the life tenant and remainder-men in esse, seeking a confirmation of his action. It was averred and sufficiently shown that the sale was an advantageous one. To this

suit the purchaser, appellant, intervened, raising the question of the right of the trustee to make the sale. The circuit court adjudged the contract enforceable, and decreed its specific performance. The court further adjudged that $4,000 of the purchase price be paid into court for reinvestment, under the will of Wilson, and that the remaining $3,000 be paid to the life tenant, Mrs. Lee. The questions for decision are: (1) Did the trustee have the power to sell and convey title to the lot? and (2) was the whole of the purchase price realized the principal fund, or was the excess above the original $4,000 "profits," as contemplated by the will?

A trustee with title, and invested by the instrument creating the trust with the power to change the investment, has the right to sell and convey the title to the trust property. Taylor v. King, 8 Am. Dec. 746; Reece v. Allen, 48 Am. Dec. 336; Gale v. Mensing, 64 Am. Dec. 197; 1 Perry, Trusts, 321, 334, 335; 2 Perry, Trusts, 787; Bank v. Jefferson, S8 Ky. 651, 11 S. W. 767. We are of the further opinion that the will above quoted gave to the trustee the same power and control over the trust fund as it gave the widow of the testator. It is manifest that the testator intended that the income, only, from the principal fund should be available to the life tenants. He uses the words "interest" and "profits" as synonymous terms. He provides that "the interest and profits" shall be paid to the life tenant "annually." If the trustee had continued to hold the house and lot until the life tenant's death, it would not be doubted that the remainder-men would take it under the will, without reference to its then value, whether greater or less than $4,000; for it represented, and indeed was, the principal set apart to them by the will. If the money had been used in buying a farm, and, after the purchase, values of such land had increased so as to double the cost, would it be supposed that in such event the land would be divided, and the life tenant given one-half of it as profits? No more so than, if values had shrunk, would she have been expected to make good the losses. Suppose the investment had been made in gold coin at par, which had for any reason risen to a high premium. It is not to be supposed that the premium would have belonged to the life tenant. Such accretions are to be considered part of the capital, the use, rents, or interest of which will go to the life tenant, and the enhanced capital to the remainder-men. Underh. Trusts, 229; 2 Perry, Trusts, 547; Van Doren v. Olden, 97 Am. Dec. 650; Hite's Devisees v. Hite's Ex'r, 93 Ky. 257, 20 S. W. 778, 19 L. R. A. 173, 40 Am. St. Rep. 189.

The judgment, in so far as it decrees a specific performance of the contract of sale, is affirmed. In so far as it adjudges $3,000 of the purchase price to the life tenant, it is reversed. Cause is remanded for proceedings consistent herewith.

1. In an action by the wife for a divorce, her residence in the county gave the court jurisdiction of the subject-matter, and a warn ing order having been made against defendant upon an affidavit filed by plaintiff to the effect that defendant was then a nonresident of the state, and believed by afliant to be absent therefrom, a judgment granting the relief sought will not, in the absence of fraud, be declared void upon the ground that defendant was in fact not a nouresident, it being provided by Civ. Code Prac. § 58, subsec. 6, that the affidavit for a warning order "unless it be controverted by defendant's affidavit, shall be sufficient evidence of the facts therein as stated for the support of the action, as well as of the warning order."

2. Defendant's motion to modify the judgment was properly overruled, as he sought to open the judgment only as to the custody of the child of the marriage, and failed to show any reason why the mother, to whom the custody of the child had been awarded, was not a proper person to have control of the child. or that he was able or prepared to care for the child.

3. Though defendant was in the county when notice to take depositions was served, it was proper to serve the notice on the corresponding attorney, as defendant had not entered his appearance.

4. The fact that the corresponding attorney had a desk in the office of plaintiff's attorneys is not sufficient to avoid the judgment, there being no improper conduct in the matter of his appointment, or in the discharge by him of his duties.

Appeal from circuit court, Fayette county. "To be officially reported."

Action by Mary Railey against Charles Elmer Railey for divorce, and action by Charles Elmer Railey against Mary Railey for divorce. Judgment overruling motion to vacate judgment for plaintiff in first-named action, and judgment for defendant in second-named action, and Charles Elmer Railey appeals. Affirmed.

Breckinridge & Shelby, for appellant. Morton & Darnall and Hazelrigg & Chenault, for appellee.

O'REAR, J. These parties were married in 1894, and separated in 1898. A male child is the sole issue of the marriage. Appellant left Kentucky in October, 1898, for New York, without informing his wife of the fact or of his intentions. He remained out of the state, saving one or two short visits, till January, 1900. In November, 1899, about 13 months after the abandonment, appellee, who continued to reside at Lexington, Ky.. their former home, brought this suit for divorce and custody of the child, alleging the abandonment, and that appellant had failed to provide support either for his wife

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

or child. He was proceeded against as a nonresident, the requisite affidavit being filed, and warning order regularly made by the clerk, and an attorney appointed to correspond with the defendant. The corresponding attorney's letter to defendant apprising him of the pendency and nature of the suit was returned uncalled for and unopened. Defendant in fact had no notice of the pendency of the suit. He returned to Kentucky, and was known by appellee to have returned, before the case was finally prepared. Notice to take depositions against him was executed on the corresponding attorney, and defendant was not given actual notice of the proceedings. The case thus prepared was decided in favor of appellee, and she was granted an absolute divorce and custody of the child. A few days thereafter, and while the court yet had control over the judgment and the case, appellant appeared in court by counsel and moved the court to set aside so much of the judgment as awarded the custody of the child to appellee, suggesting that the judgment was void; that he had never heard of the pendency of the suit till he saw a newspaper account that the judgment had been rendered; that as a matter of fact he had never been a nonresident of Kentucky, but had been temporarily absent on business. Affidavits were filed in support, and in resistance, of appellant's motion. On final hearing the court declined to set aside the first judgment, and rendered a judgment for costs against appellant. To revise the last-named judgment the first of these appeals is prosecuted.

It is earnestly insisted that this record shows: (1) That appellant was not in fact a nonresident when the suit was filed and judgment rendered; (2) that it is the fact, and not the statement of it in the plaintiff's affidavit, that gives the court jurisdiction to proceed by warning order; (3) that this fact may be shown contrary to the recitals of the record, and that the judgment is consequently void. These propositions are said to involve that fundamental tenet that no man shall be deprived of his life or property without due process of law, which means, according to the argument, "his day in court." The residence of the wife gives the court jurisdiction of the subject-matter of this suit (Ky. St. § 2120), and the defendant may be before the court for the purposes of the suit by actual service of summons on him by an officer authorized by law to serve it, or by his voluntary appearance, or by warning order. Section 58, Civ. Code Prac. The last method is authorized only in case the defendant is a nonresident (and in other instances not pertinent to this case). Whether the defendant is a nonresident is a fact to be determined by the court trying the case, as is every other fact in that case. The law of this state has provided how the defendant's person may be subjected to the

jurisdiction of the courts. The process commonly called "publication" is an order indorsed by the clerk upon the petition, warning the defendant to appear and defend the action within the time prescribed by the Code, and appointing some attorney of the bar to correspond with the defendant, that he may have actual notice of the pendency of the suit, and of its character. Before the clerk is authorized to enter such an order, the plaintiff must file, or there must be filed for him, an affidavit stating that the defendant is a nonresident of the state, and believed by the afliant to be absent therefrom, and giving, if known, his post office address. Subsection 6 of section 58 of the Code thus provides: "An affidavit made pursuant to the foregoing provisions of this section, unless it be controverted by the defendant's affidavit, shall be sufficient evidence of the facts therein stated for the support of the action, as well as of the warning order.” This affidavit, duly made and filed, is expressly made the proof of its own truthfulness, unless denied by defendant's affidavit. This fact, claimed to be a jurisdictional one, is thus established in the manner provided by law. Being so established, can it be attacked otherwise than as permitted in the section quoted above, or, at furthest, as provided by sections of the Code allowing applications for new trial. Sections 342-344, 518. It is argued that it would be a monstrous doctrine to say that one in fact not a nonresident may have a valid judgment rendered against him by a court of this state, without service of process, without his appearance, and without his knowledge of the pendency of the action; that to allow it is to authorize his property to be taken without his having had a "day in court,"-without due process of law as guarantied to him by the constitution. Constructive service of process, though not employed as now generally in use, was nevertheless known to the common law. 3 Bl. Comm. 283-344. It is therefore a proceeding "according to the course of the common law." Hahn v. Kelly, 34 Cal. 417, 94 Am. Dec. 758. The law of the land recognizes it as one of the authoritative methods of acquiring jurisdiction of the person of the defendant who is interested in the subject-matter of litigation already within the court's jurisdiction. When and how it shall be employed are matters of statutory regulation. The proof necessary to sustain such a proceeding must be passed upon by the court trying it, as would the proof in case of alleged actual service of process. When this proof satifies the court as to the existence of jurisdictional facts, whether to support actual or constructive service, it must be taken as conclusive till judgment is reversed or vacated in a direct proceeding. To hold otherwise would be to subject every domestic judgment of courts of superior jurisdiction to liability to collateral attack at any time, and recitals