Switzer v. Eadie

80 P. 961 | Kan. | 1905

Per Curiam:

This action was commenced in the name of A. C. Wilcox, in December, 1897, on a promissory note given by the defendant to Wilcox. The plaintiff, recovered judgment in the district court, in April, 1899, and defendant prosecuted error to the court of appeals, where the judgment was affirmed. The cause was then certified to this court, and at the October term, 1902, it was reversed and remanded.

In August, 1903, John F. Switzer appeared in the court below, as the receiver of the Alfalfa Irrigation and Land Company, and asked that he be substituted for Wilcox, showing that at the time the action was commenced the Alfalfa Irrigation and Land Company was the owner of the note. It appears that Switzer was appointed receiver for the company March 15, 1901; that he took some part on the hearing in the court of appeals, and was an attorney of record for Wilcox in this court. There was no showing as to when he first learned that the Alfalfa Irrigation and Land Company was the owner of the note, but there was some evidence that he was the general attorney for that company before it failed and when the action was being tried in the district court the first time. There was no showing made why application for substitution was not made at an earlier date. The court below denied the application. This, it is claimed, was an abuse of discretion. This court is of a different opinion. There was no excuse or reason offered to the court below why the application for substitution had not been made before. This cause was continued in the name of Wilcox for several years after it was known by counsel for plaintiff that Wilcox was not the owner of the note. We think, under the circumstances, the court did not abuse its discretion in refusing to permit the receiver of the Alfalfa Irrigation and Land Company to be substituted for Wilcox.

The judgment is affirmed.