On December 21st, 190S, the plaintiff, a Wyoming corporation, filed in the Circuit Court its complaint against Stratton’s Independence, Limited, a corporation organized about the year 1898 under the laws of the Kingdom of Great Britain and Ireland. The complaint contains twenty-five counts or causes of action, and the aggregate amount sought to be recovered is $366,600. It is alleged in the several causes of action that the plaintiff is thе successor (having been organized in 1905) in title to certain mining properties situate in the Cripple Creek Mining District, which were granted to it by The Portland Gold Mining Company, a corporation organized under the laws of the State of Iowa, and that it is the as-signee of said Iowa company of the claims on which each cause of action is based. Each count states an action in trover. Each alleges that precious ores were broken down and taken from its mining claims while the property belonged to the Iowa corporation, that said ores came into the possession of said defendant and were of the aggregаte value above noted and were thereafter converted by said defendant to its use. After issues were joined, and on November 19th, 1910, a motion was entered that the causes of action abate on account of the dissolution of said defendant, which had taken place on July 4th, 1910. Before that motion was heard stipulation between counsel as to the facts in that respect was filed in the cause. From that stipulаtion it appeared that said defendant “company did, on the 4th day of July, A. D. 1910, become wholly dissolved in that jurisdiction” (the Kingdom of Great Britain and Ireland). It was thereupon ordered that said causes of action abаte as against said defendant.
From the said stipulation it further appeared that at the time of the dissolution of said defendant it was indebted to various creditors to the amount of about $375,000. In 1908 a new company was organized under the law's of the Kingdom of Great Britain and Ireland bearing the same name as said defendant. The number of shares in the newr company was the same as in the old, but each share was of less par value. The stockholders in the old company were given the privilege of taking the same number of shares which they held in the old company, in the new company. .They did not all avail themselves of this privilege. Of the million shares in thе new company 123,226 were purchased by strangers to the old company, aud they paid in for these shares $375,009. The $375,000 so paid into the treasury of the new company by those w'ho were not shareholders in the old company was turned over to the old company for the payment of its debts, and the new company, in consideration therefor, and in further consideration that it would protect the old company against its debts, liabilities and obligations and pay, satisfy and discharge the same, and adopt, perform and fulfill all contracts and engagements then binding it, received from said old company all of its properties, including lands, buildings, mines, cоncessions, goods, chattels, moneys, credits, debts, bills, notes and things in action.
On these facts the same order which abated the action against the old company (1898) contained an order that the new compаny (1908)
The new company now moves for a vacation of the order substituting it as a defendant, and this is the matter for present consideration.
To sustain the affirmative of this proposition plaintiff’s counsel cite section 955, Rev. Stat. U. S. (U. S. Comp. St. 1901, p. 697). This section does not “prescribe the causes which survive the deаth of either party.” Patton v. Brady,
But the causes of action survived the dissolution of the old company at common law, Patton v. Brady, supra, In re Connaway,
“All actions in law whatsoever, save and except actions on the case for' slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real property shall survive to and against executors, administrators and conservators.”
See Kelley v. U. P. Ry. Co.,
“The action for the recovery of real property shall not abate by the death of either or all the parties thereto, but may be revived in the name оf the heirs, representatives or successors in interest in the manner other civil actions are revived by this act.”
The other provisions of the code to which reference is doubtless made in the above section, is section 15 of said code, which is as follows:
“An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In casе of the death or other disability of a party the court, on motion, may allow the action to be continued by or against his representative or successor in interest. ' In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.”
It is apparent from the language of this section thаt the revival can be made only in favor of or against those who acquire, either by operation of law or otherwise, an interest in the subject-matter of the action. The subject-matter of each of thе causes of action here is the proceeds or value of the ore which came into the possession of and was retained by the old company on account of the several acts of аlleged conversion and appropriation. But it is not claimed that these ores or their proceeds or the value arising therefrom was ever
There is therefore no law of the state which authorizes a revival оf the causes of action against the new company.
It is permissible under this section to strike out the name of one defendant where the action is against several, Greeley v. Smith,
That part of said section 75 of the state code on which the insistence is made for amendment by substituting the new for the old company is as fоllows:
“The court may, on motion, in furtherance of justice and on such terms as may be proper, amend any pleading or proceeding, adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect,” etc.
A like code provision was under consideration by the New York Court of Appeals in New York, etc., Association v. Agricultural Works,
“The order to amend in this case authorizes the striking out of the name of the defendant and the insertion of the names of three persons as defendants in lieu thereof. Its effect is to continue the action against oilier and different parties than the one named, thus substituting a cause of action*718 with new and other defendants. Such an amendment is not we think, au-thorised by any provision of the Code or any of the adjudged eases. Section 723 of the Code of Civil Procedure does not cover any such case. While full authority is conferred for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction ah entirе change of name of the defendant by the substitution of another or entirely different defendants. The authorities relating to the question are fully considered in the opinions of the General Term, and it is not necessary to examine them upon this appeal. Although some eases are cited which are supposed to sanction such a rule, they are not well founded and have not received the approval of this court. The cases of Bassett v. Fish,75 N. Y. 304 , and Shaw v. Cock,78 N. Y. 194 , without citing other cases, are directly in point and settle the question adversely to the claim of the respondent’s counsel.”
See, also, Ency. P. & P. Vol. 1, pp. 445 and 446.
The motion to vacate the order substituting the new company as defendant for the old must be sustained. It is so ordered.