58 P. 1018 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
This action was brought by plaintiffs in error, as plaintiffs, to recover possession of a strip of land containing about five acres, used by defendants in error as part of the right of way for their railroad. The case was tried upon an agreed statement of facts, judgment rendered in favor of defendants, and plaintiffs bring the case here.
The agreed statement of facts shows that the land in suit had been legally condemned for the use of the Le Roy & Western railway as a right of way, and that the railway company did all things necessary under sections 3 and 4 of chapter 68, General Statutes of 1897 (Gen. Stat. 1899, §§1320, 1321), to give it the right to occupy the right of way and use it; that within the time limited by law the plaintiffs appealed
The jury returned a verdict in favor-of the plaintiffs, awarding them the sum of $1132.65 as and for their' damages on account of such condemnation proceedings, and judgment was rendered thereon by said district court, confirming said award against the Le Roy & Western Railway Company, and for costs. Neither party to this action was ever made a party to said appeal in any way, and never took any part in the proceedings therein, and said sum of $1132.65 awarded by the jury against the Le Roy & Western Railway Company upon said appeal has never been paid, nor any part thereof. It also appears that after the consolidation the Chicago, Kansas & Western railway was leased to the Atchison, Topeka & Santa Fe Railroad Company, one of the defendants.
As the agreed statement of facts shows that the Le
“Where a railroad company is consolidated with other railroad companies under a new name it ceases to exist as a corporation, and an action brought by or against such railroad company before its consolidation cannot afterward be prosecuted by or against it or in its original name.”
The agreed statement of facts shows that the suit was brought before the act of consolidation, and that no motion was at any time made to substitute the defendants in this action for the Le Roy & Western Railway Company, and that at the time the case came on for hearing such railway company had ceased to exist as a corporate entity. Any judgment rendered upon such hearing would, therefore, be void. We must hold, under the authority of the case cited, that the appeal has never been determined, and the judgment of the district court will, therefore, be affirmed.