Hoffield v. Board of Education

33 Kan. 644 | Kan. | 1885

The opinion of tbe court was delivered by

HortoN, C. J.:

On January 22, 1880, the city of Newton was declared by the public proclamation of the governor to be a city of the second class, and thereafter such city was subject to the provisions of article 11, ch. 122, Laws of 1876, relating to public schools. (Comp. Laws of 1879, pp.- 846, 850.) Prior to that time, the association of the inhabitants of the territorial school limits of the city of Newton, for public school purposes, was named and known as “School District No. 1, Harvey county, Kansas.” After that time, the public schools of said city possessed the usual powers of a corporation for public purposes, under the name and style of “The Board of Education of the City of Newton, of the State of Kansas.” (Laws of 1876, ch. 122, § 4.) The Board of Education of the city of Newton was substantially a continuance of “School District No. 1, Harvey county,” under a new name. All the property of School District No. 1 passed to the board of education of the city of Newton, and said board became subject to all the liabilities of the old corporation. In some respects, the board of education was vested with powers not conferred upon School District No. 1, but the merger of School District No. 1 into the board of education did not relieve the latter corporation from an obligation to pay the debts of the school district. Now a man or corporation may change his or its name between the time the cause of action arose and the bringing of the suit, but a corporation certainly loses none of its franchises or rights by such a change, when authorized by law. A corporation can recover by its new name a debt due before, and a creditor of the old corporation can recover his debt against the new corporation, if the latter takes all the rights, and is subject to all the liabilities of the old corporation which it supersedes or continues.

It is insisted, however, by the defendant, that the action of plaintiff commenced on August 16, 1882, against School District No. 1, and the judgment rendered therein against said school district is not valid against the board of education. .We think otherwise. A mistake was made in the name of the defendant, but the summons was served upon its president, and in legal contemplation the office he held clothed him with power to receive notice for and on behalf of the corporation; therefore the process was actually served upon the defendant and upon a person qualified to represent the defendant in respect to such service, and notice to him was notice to the corporation which he then represented. This, therefore, may be regarded as the case of a misnomer. The defendant failed to plead the mistake in abatement, or otherwise, and the judgment binds the corporation although sued by a wrong name. The rule seems to be well established, that where a corporation has taken no advantage of a variance from its name, either by plea or at the trial, it cannot arrest the judgment or reverse it on that account. (Angell and Ames on Corporations, 11th ed., 1882, §§ 650, 651; Insurance Co. v. French, 59 U.S. 404; Bank v. Jaggers, 31 Md. 38; Bank v. Eyer, 60 Pa. St. 436; Freeman on Judgments, § 154; Sherman v. Proprietors of Connecticut River Bridge, 11 Mass. 338; Guinard v. Heysinger, 15 Ill. 288.)

We do not think that the unsuccessful attempt made in the district court to substitute the board of education for the school district affects the original judgment. That judgment is binding upon the defendant, and the relief asked for in the subsequent proceeding may have been regarded by the district court as wholly useless and unnecessary. We perceive no injustice in requiring the defendant to pay for the school furniture which it has received and appropriated for public school purposes.

Upon the record, the agreed statements of the parties, and the evidence before us, the peremptory writ of mandamus will be awarded as prayed for.

All the Justices concurring.