Chicago, Kansas & Western Railroad v. Butts

The opinion of the court was delivered by Martin, C. J. :

I. The defendant in error claims that the order of substitution cannot be reviewed, be *664 cause it was made more than one year prior to the filing of the petition in error in this court. It is enacted by § 556 of the code, as amended in 1881, that ‘ ‘ no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of.” The order of substitution, however, was neither a judgment nor a final order within the meaning of said section, nor of §§ 542 and 543 of the code, and, as the petition in error was filed within less than one year after the judgment was rendered, it is the duty of this court to examine, not only the final judgment, but the intermediate and interlocutory orders made at whatever time in the progress of the case, the same being involved in the judgment.

II. It is also contended that where a railroad company institutes a condemnation proceeding it is really the plaintiff, and if any revivor or substitution was necessary the proceeding should be instituted by the railroad company, and it had no right to complain because the landowner did so after the expiration of one year. This contention cannot be maintained. In Boom Co. v. Patterson, 98 U. S. 403 , Patterson had taken an appeal to the district court from an award of condemnation in a proceeding instituted by the Boom Company. On petition of the Boom Company, the cause was removed to the federal court, and it became an important question there whether the proceeding was a suit at law or in equity, for otherwise it could not be removed. The court says :

“The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But *665 when it was transferred to the district court by appeal from the award of the commissioners it took, under the statute of the state, the form of a suit «at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land ; in other words, the value of the property taken. . . . The case would have been in no essential particular different had the state authorized the company by statute to appropriate the particular property in question and the owners to bring suit against the company in the courts of law for its value.”

This court has also held that the appealing landowner is properly the plaintiff in the case. (Railroad Co. v. Owen, 8 Kas. 409 ; Railroad Co. v. Orr, 8 id. 419 ; Reisner v. Strong, 24 id. 418 .)

III. The claim that the Chicago, Kansas & Western Railroad Company consented to the revivor or substitution and voluntarily entered a general appearance, is not justified by the record. Although the motion for substitution was filed in the original case November 8, 1889, it does not appear that any notice was given of its pendency. It was called up on June 16, 1890, in the name of the original parties only. But when the order was made, the Chicago, Kansas & Western Railroad Company excepted. ■ When it. filed answer,-as it was bound to do under the order of the court, it made the defense that the proceedings for .revivor or substitution were invalid, and at every stage of the case it held to this position. We cannot say, that notwithstanding all this, it consented to the revivor or substitution and voluntarily entered its appearance.

IY. This brings us to the main question as to said order of revivor or substitution. Counsel for defendant in error earnestly and ably contends that the construction heretofore given to §§40 and 425 to 435 of *666 the code, in treating old corporations which have consolidated into a new one as defunct, so as to require a revivor or substitution within one year (unless by consent ), in the same manner as in the case of a deceased party, being a natural person, cannot be maintained on reason or authority, and that an order of substitution of the new company in place of the old can be made at any time as well after as before the expiration of one year from the consolidation, and without the consent of the new corporation. We have given due consideration to the argument of counsel, but it fails to.satisfy us that the doctrine announced by the court in K. O. & T. Rly. Co. v. Smith, 40 Kas. 192 , and Cunkle v. Interstate Rld. Co., 54 id. 194 , was.erroneous, and we feel it our duty to follow those decisions. The limitation of one year may work a hardship in this case and in others, as it may do in the case of natural persons who die during the pendency of an action. The means of knowledge of a consolidation of railway corporations are much better than those respecting the death of a natural person who may reside far away. Such consolidation is generally a matter of public notoriety along the line of the railway, and the articles must be filed in the office of the secretary of state, and thus become a public record, accessible to all inquirers. It may seem strange, also, that, after counsel have appeared for a defunct corporation for more than a year after its consolidation into a new company, the latter may successfully insist that it cannot be substituted in place of the old one, but this is a necessary eonsequeiice of the position that by the consolidation the old company has ceased to exist, and that revivor proceedings are necessary to keep the case pending in court against its successor. In the case above cited from 40 Kas. 192 , under this same *667 consolidation, the landowner succeeded in obtaining judgment against the old company, which commenced a proceeding in error in this court, but on motion of the landowner the case was dismissed, this court holding that all the proceedings subsequent to the consolidation were void. This, of course, left the landowner without any valid judgment. What proceeding, if any, can be maintained by the landowner in such cases we need not discuss.'

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.