76 P. 865 | Kan. | 1904
The opinion of the court was delivered by
This was an action brought by the board of county commissioners of Saline county to enjoin the Union Pacific Raili’oad Company from excavating a ditch in, or interfering with the use of, an alleged highway. In 1870 proceedings were had toward the laying-out of a highway along, and within fifty feet of, the Union Pacific railroad track, and the roadway has been improved and used since that time. The railroad company contended that the road was
Each party complains of adverse rulings, but the question of res judicata is controlling, and the only one that requires consideration. The former litigation as to the roadway in question was begun in the district court of Saline county in 1889, and final judgment was rendered October 22,1890. In the entry of judgment then made it was recited that the railroad company was entitled to a perpetual injunction against the county commissioners of the county and the township officers from entering upon the company’s right of way, or laying out the highway in question, and it was adjudged and decreed that they be perpetually enjoined from doing so, or in any way interfering with the railroad company in the exclusive use of its right of way over which the roadway had been laid out.
The petition in the first action was entitled “The Union Pacific Railway Company, plaintiff, v. J,obn W. Burke, Taylor Miller, and P. Swedlund, county commissioners of Saline county, Kansas, Peter Soldan, township trustee of Spring Creek township, and John 0. Lundquist, road overseer of district No. 4 of Spring Creek township, defendants.” Among other things, it was alleged in the petition that the county of Saline, through its duly constituted officers, and the township of Spring Creek, through its duly constituted officers, had entered upon, and were laying out, repairing and building a highway over, the right of way of the railroad in violation of the rights of the railroad company, and it was asked that they be enjoined from so doing. Upon this petition a temporary order was issued restraining the defendants-from continuing the work. A summons was issued to Burke,. Miller, and Swedlund, as county commissioners of Saline county, and was duly served on them. In behalf of the county the county attorney filed a motion to dismiss the action, alleging that the court had no jurisdiction because the highway was a state road and no notice of the action had been given to the state officers. In the caption of the motion the county attorney described the defendants as “The, board of county commissioners of Saline county,. Kansas,” and he signed it as “county attorney.”
In the first pleading, as in some of the other proceedings, the technical corporate name of the county was not used, and the process was not served on the county clerk as the statute requires. The county should have been sued as “The board of county commissioners of the county of Saline.” Instead of impleading the defendants as a board of county commissioners, the commissioners constituting the board were named. The county commissioners, however, were sued in their official capacities, and no complaint was made against them as individuals. The wrongs complained of in the petition and sought to be enjoined were charged to have been committed by the
In School District v. Griner, 8 Kan. 224, the correct corporate name of the district was not used, and advantage of the defect was attempted to be taken by an objection to testimony. The court, however, held that the filing of an answer to the merits without raising the defect of misnomer was a waiver, and it was too late to take advantage of it by an objection to the admission of testimony.
In the case of Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062, the claim was that an order was not binding upon the county because it was not correctly named as a party to the litigation. In the action the board of county commissioners was not at first properly and formally made a party to the case, and the board, after fighting the case to a conclusion, undertook to take advantage of the defect. Upon this claim it was remarked :
“The board of county commissioners throughout the litigation was the real party in interest. It was not at first made a party upon the pleadings, but subsequently was made such, and in fact it appeared so at all times by the county attorney, although the case was at first entitled in the name of the state of Kansas and subsequently in that of the county • treasurer. The case was not nominally entitled in the name of the board of county commissioners as plaintiff, but the interests involved were the interests of the county, and, as such, have been most diligently and pertinaciously defended by the board of commissioners, the*284 county treasurer, and the county attorney. It is too late now for the board of commissioners to interpose-the objection that it is not and has not been in court to answer the contentions of the Bank of Santa Fe for the possession of the property in dispute.”
(See, also, Thacher & Stephens v. Comm’rs of Jefferson Co., 13 Kan. 182; School District v. Carson, 10 id. 238; Hoffield v. Board of Education, 33 id. 644, 7 Pac. 216; Weaver v. Young, 37 id. 70, 14 Pac. 458; Commissioners v. Bank of Commerce, 97 U. S. 374, 24 L. Ed. 1060.)
It must be held that the county was a party to the-former proceeding and is bound by the judgment-then rendered. The issues 'involved having been directly adjudicated against the contentions of the-county, they cannot be reopened or relitigated in the same or any other tribunal.
It follows that the judgment of the district court-must be reversed, and the cause remanded with directions to enter judgment in favor of plaintiff in error.