55 Kan. 660 | Kan. | 1895
The opinion of the court was delivered by
I. The defendant in error claims that the order of substitution cannot be reviewed, be
II. It is also contended that where a railroad company institutes a condemnation proceeding it is really the plaintiff, and if any revivor or substitution was necessary the proceeding should be instituted by the railroad company, and it had no right to complain because the landowner did so after the expiration of one year. This contention cannot be maintained. In Boom Co. v. Patterson, 98 U. S. 403, Patterson had taken an appeal to the district court from an award of condemnation in a proceeding instituted by the Boom Company. On petition of the Boom Company, the cause was removed to the federal court, and it became an important question there whether the proceeding was a suit at law or in equity, for otherwise it could not be removed. The court says :
“The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But*665 when it was transferred to the district court by appeal from the award of the commissioners it took, under the statute of the state, the form of a suit «at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land ; in other words, the value of the property taken. . . . The case would have been in no essential particular different had the state authorized the company by statute to appropriate the particular property in question and the owners to bring suit against the company in the courts of law for its value.”
This court has also held that the appealing landowner is properly the plaintiff in the case. (Railroad Co. v. Owen, 8 Kas. 409 ; Railroad Co. v. Orr, 8 id. 419 ; Reisner v. Strong, 24 id. 418.)
III. The claim that the Chicago, Kansas & Western Railroad Company consented to the revivor or substitution and voluntarily entered a general appearance, is not justified by the record. Although the motion for substitution was filed in the original case November 8, 1889, it does not appear that any notice was given of its pendency. It was called up on June 16, 1890, in the name of the original parties only. But when the order was made, the Chicago, Kansas & Western Railroad Company excepted. ■ When it. filed answer,-as it was bound to do under the order of the court, it made the defense that the proceedings for .revivor or substitution were invalid, and at every stage of the case it held to this position. We cannot say, that notwithstanding all this, it consented to the revivor or substitution and voluntarily entered its appearance.
IY. This brings us to the main question as to said order of revivor or substitution. Counsel for defendant in error earnestly and ably contends that the construction heretofore given to §§40 and 425 to 435 of
The judgment of the district court will be reversed, and the cause remanded for further proceedings.