54 Kan. 194 | Kan. | 1894
The opinion of the court was delivered by
This was an action to recover an award made in a condemnation prAceding for a right-of-way through the land of L. J. Cunkle for the Interstate Eailroad Company. The commissioners who were duly appointed made an award of $406.25 for the land taken and the damages done, and this amount the railroad company deposited with the county treasurer, after which time the company took possession of the land so set apart, and built a railroad over it for a distance of 325 feet. Cunkle appealed from the award, and in the district court it was increased to $1,727.50. The company was unwilling to pay this sum for the right-of-way, and it was announced that the award would not be paid nor the right-of-way used, and later the track was taken up and built elsewhere. Afterward, upon an order of the dis
The defendant moves to dismiss the proceeding in this court, contending that, under the authority of Railway Co. v. Smith, 40 Kas. 192, the defendant company had, by its consolidation with the other companies, ceased to exist as a corporation, and that no legal proceeding could be taken against it. At the same time the plaintiff moves to substitute the Kansas & Colorado Pacific Railway Company as the successor of the defendant in error. The new or consolidated company succeeds to the obligations and liabilities of the defendant company, as well as to its property, privileges, and powers. (Railroad Co. v. Ryan, 49 Kas. 1; Berry v. Railroad Co., 52 id. 759, 774.) The fact that the defendant has become defunct does not of itself cancel its obligations nor defeat the plaintiff in maintaining an action for the recovery of any valid claim which he has against it, providing action is
It is conceded that the defendant company is dead, and further, that its successor is the Kansas & Colorado Pacific Eailway Company. The code authorizes the revivor and continuance of an action or proceeding against the representative or successor in interest of the party that has ceased to exist, and provides how and when it may be done. (Civil Code, §§ 40, 425-435.) There is no other or different method of substituting a successor of a dead party as defendant, and reviving the action in the name of such successor, than is prescribed in the last sections named, and which may be found in article 19 of the code. They provide that such a substitution or revivor may be made by the order of the court or judge, but they further provide tha,t such an order cannot be made without the consent of the successor, unless it is done within one year from the time it could have been first made. (Civil Code, § 433.) This is a positive requirement of the statute, and hence the motion of the plaintiff comes too late. More than three years elapsed after the consolidation was effected before the application to substitute was made, and the successor of the defendant appears and expressly declines to give its consent to the substitution or revivor. The proceeding in error must, therefore, be dismissed.