Atchison, Topeka & Santa Fé Railroad v. Benton

42 Kan. 698 | Kan. | 1889

The opinion of the court was delivered by

Horton, C. J.:

A reexamination of the pleadings in this case shows that a part of the answer of the railroad company was unintentionally overlooked. The second defense alleges that —

“ There is a defect of parties defendant in said suit, and that A. H. McKee, Walter B. Davis, Andrew Morris and Philip S. Doerr are necessary parties to a final and complete determination of the same, for the reasons set forth in the first count of this answer, which by reference is hereby made a part of this count of the answer.”

It appears from the pleadings that on the 8th day of July, 1881, the Atchison, Topeka & Santa Fé Railroad Company entered into a written contract with M. S. Sproules, by the terms of which it was agreed that the railroad company, on payment of the sum of $1,000, by the 15th day of May, 1882, should execute and deliver to Sproules a good and sufficient deed to the real estate therein described; that on the 18th day of June, 1880, Sproules, for a valuable consideration, assigned in writing the contract and all his interest therein to A. H. McKee, and delivered said contract to McKee; that on the 24th day of December, 1881, McKee, for a valuable consideration, assigned in writing said contract and all his interest therein to Walter B. Davis, and delivered said contract to Davis; that on the 28th day of March, 1884, Walter B. Davis, for a valuable consideration, assigned said contract in writing and all his interest therein to Andrew Morris, and delivered said contract to Morris; that on the 17 th day of August, 1885, Morris, for a valuable consideration, assigned said contract and all his interest therein to Philip S. Doerr, and delivered said contract to Doerr; that on the 17th day of August, 1885, the railroad company executed and delivered to Doerr its deed of conveyance to all its right, title and interest in the premises.

Mrs. N. A. Benton, sometime in 1880, entered into an agreement with McKee and Stewart that upon the payment to them of $25, and the delivery to them of a good and sufficient deed to certain land in Missouri, they would transfer and assign to her all their right and interest in said written contract; that plaintiff executed to McKee and Stewart a good and sufficient deed to the land in Missouri, and also paid them $25, and thereupon McKee and Stewart executed to her the following receipt:

“Wichita, Kansas, July 8, 1881. — Received of Mrs. N. A. Benton, twenty-five dollars, to apply on contract No. 4528, Atchison, Topeka & Santa Fé Railroad land, situate in Sedgwick county, Kansas. McKee & Stewart.”

But McKee and Stewart did not assign in writing, or deliver the written contract obtained from Sproules to Mrs. Benton. The railroad company did not file its answer until the 17th day of March, 1886, and the action was not commenced against the railroad company until the filing of its answer, because the service attempted before that time was insufficient and void. Therefore, at the time this action was commenced against the company, the company had executed and delivered to Doerr its deed, on the 17th of August, 1885, of the premises described in the petition. At the time that the first judgment rendered against the railroad company was set aside for want of service, the plaintiff agreed with the railroad company that it might file an answer to relate back to the commencement of the action. (Miller v. Kershaw, 1 Bailey’s Eq. 479; Weeks v. Tomes, 16 Hun, 349; Kellogg v. Fancher, 23 Wis. 1.) This, however, did not change the commencement of the action, or the lis pendens. The answer was filed about the time of this stipulation. Therefore the stipulation and the answer were the first appearance of the railroad company.

1. Specific performance-vendor-purcheser-necessary-party. Under this state of facts, the plaintiff was not entitled to a decree against the railroad company, because all the necessary persons had not been made parties to the action. It is a general rule in equity pleading that all persons whose interest is to be affected by a suit are necessary parties to it. Even if the subsequent assignees of the written contract were not necessary parties, yet Doerr should have been made a party defendant, as he was the holder of the legal title of the premises in dispute, and if he was not an innocent purchaser, he might have been declared the trustee of the legal title for the benefit of the plaintiff. Where a land contract has been assigned, the last assignee who claims the contract and the title to the land therein described, should be joined with the vendor in an action for specific perform-1 1 anee brought by a prior assignee of the contract. (Estill v. Clay, 2 A. K. Marsh. 497; Allison v. Shilling, 27 Tex. 460; Railroad Co. v. Wilhelm, 33 Kas. 206.)

In the case of Hare v. L. & N. W. Rly. Co., 1 Johns. & Hem. 252, Vice-Chancellor Wood-says:

“ If I allow the suit to proceed in the absence of any of the other companies, any of the decrees which I might make would not bind them, and the defendants might become liable in damages for obeying the order of the court.”

Further, prior to the execution of the deed by the railroad company to Doerr, the company had no notice of the assignment of the written contract to Mrs. Benton. When Doerr presented the contract properly assigned in writing to him and tendered the money due thereon, in the absence of notice to the contrary it was the duty of the railroad company to execute its deed to Doerr. It appears that on July 10,1882, Sluss & Hutton, the attorneys of Mrs. Benton, wrote to George R. Peck, Esq., general attorney of the railroad company, of Mrs. Benton’s claim. At that time, as no valid service had been made upon the railroad company, no action was pending against the company; therefore the notice to the general attorney of the company was not notice to the company for_anv — purpose whatever. An attorney cannot, under his general authority, accept service for his client of the original process by which the action is begun. The principles upon which the authorities supporting this rule rest are:

“That it is no part of the duty of an attorney, nor within the scope of his authority, to admit of service for his client, of the original process by which the jurisdiction of the court over the person of the client is first established, for until that be done the relation of client and attorney cannot begin; nor can it be created by the act of the attorney alone.” (Starr v. Hall, 87 N. C. 381.)

2. Notice to general attorney when notice to company. Notice to the attorney, whether actual or implied, is considered notice to the client, and the latter is bound; but this notice cannot be given until the action is commenced in the court, or the attorney has been given charge of the subject-matter of the litigation. The client.,is not bound, if the notice is received by his general attorney in a transaction over which the attorney has no control, and which at the time of the notice is not in litigation. Until" the voluntary appearance of the railroad company in the court below, this action was not pending against it, as the defective service was not notice to it. Nor did such service bring it within the jurisdiction of the court. The general attorneyiof the company, prior to the stipulation and answer heretofore referred to, had nothing whatever to do with the action or the claim of Mrs. Benton. It is well known that a great railroad company, like that of the Atchison, Topeka & Santa Fé, has many separate departments or bureaus — such as the land department, the passenger department, the freight department, the construction department, etc. At the head of each of these departments there is a managing officer, who has charge of the business of that department. Before any legal proceedings are commenced, the business of each department is under the control of the chief of that department, subject to the direction and supervision of the president or general manager. Any matters requiring legal attention or advice are referred to the general attorney by the department having special charge thereof, or by the president or general manager; but prior to the commencement of an action in a court against the company, notice to the general attorney of the matters solely under the control of another department is not notice to that de1 partment or to the company, unless prior to such no£jce attorney has been directed to take charge of the subject-matter of the notice. After an action has been properly commenced against the company, then notice upon its general attorney would be notice to the company, and therefore valid and binding.

The judgment heretofore rendered in this court will be set aside, the judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.

All the Justices concurring.