Arkansas River Gas Co. v. Molk

• Decision Date: 09 April 1932
• Docket Number: 30401.
• Citation: 135 Kan. 152,9 P.2d 623
• Parties: ARKANSAS RIVER GAS CO. v. MOLK et al.
• Court: Kansas Supreme Court

9 P.2d 623

135 Kan. 152

ARKANSAS RIVER GAS CO. v. MOLK et al.

No. 30401.

Supreme Court of Kansas

April 9, 1932

Syllabus by the Court.

Motion by successor to plaintiff corporation for revivor or substitution as plaintiff, made more than year after dissolution of plaintiff corporation, held properly denied where defendant withheld consent (Rev. St. 1923, 17--706 17--808, 60--415, 60--3207, 60--3208, 60--3212, 60--3215).

Where record on appeal did not disclose that plaintiff corporation had been dissolved by forfeiture of charter, proceedings on appeal gave no vitality to defunct corporation, and did not serve as order of revivor (Rev. St. 1923, 17--706, 17--808 60--415, 60--3207, 60--3208, 60--3212, 60--3215).

1. Where the charter of a corporation was forfeited during the pendency of litigation in which it appeared as sole plaintiff, and no substitution of its last board of directors as ex officio trustees was asked, and where a third party acquired its interest, but made no motion for revivor or substitution until more than one year had elapsed since the dissolution of the corporation, a motion by such third party to be substituted as plaintiff filed more than three years later, where defendant's assent thereto was withheld, was properly denied, and defendant's motion to dismiss the action was properly sustained.

2. Where an appeal was taken to the Supreme Court and there considered and decided on such questions as the litigants chose to present, but where the record did not show that the plaintiff corporation had been dissolved by forfeiture of its charter, the proceedings on appeal gave no vitality to the defunct corporation, nor did they serve as an order of revivor within the pertinent requirement of the Civil Code.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action by the Arkansas River Gas Company against Isador Molk. From a judgment overruling a motion of the Osage Syndicate Incorporated, to be substituted as plaintiff, and sustaining the defendant's motion to dismiss the action, the Osage Syndicate, Incorporated, appeals.

K. M. Geddes, of Eldorado, for appellant.

J. B. McKay, of Eldorado, for appellee.

DAWSON J.

This is an appeal from a judgment overruling appellant's motion to be substituted as plaintiff in this action and sustaining appellee's motion that the action be dismissed.

To determine the propriety of the trial court's rulings, the previous record of the case must be briefly stated:

On May 8, 1924, this action was begun by the Arkansas River Gas Company to recover from Isador Molk the sum of $2,470 as the value of certain oil well casing alleged to be the property of plaintiff which defendant Molk had converted to his own use. The cause was tried before a jury which rendered a verdict for defendant on December 13, 1925. Plaintiff filed a timely motion for a new trial on December 16, 1925. That motion was not ruled on until January 7, 1929--three years and twenty two days later. At that time the motion was overruled and judgment was entered in defendant's favor according to the verdict. During this long interval while the motion for a new trial was reposing undisposed of, the charter of the plaintiff corporation was forfeited on December 30, 1926, for noncompliance with its statutory duty under R. S. 17 ¶ 06 to file its annual report for the year 1925.

On February 2, 1929, an appeal to this court was taken in behalf of the defunct corporation, and in due time that appeal was heard and decided by this court, in an opinion rendered on March 8, 1930, reversing the decision of the trial court and remanding the cause for a limited retrial to determine the value of the casing and instructing the trial court to give judgment for plaintiff for the amount so to be determined. 130 Kan. 30, 285 P. 561.

During the pendency of that appeal no question was raised as to the dissolution of the plaintiff corporation. After the cause had been remanded to the district court, however, on January 16, 1931, defendant filed a motion to dismiss because of the forfeiture of the plaintiff's corporate charter in December 1926, and because no steps had been taken to revive the action in the name of its liquidating trustees. R. S. 17--808. On the same day the present appellant, the Osage Syndicate, Incorporated, filed a motion to be substituted as plaintiff in lieu of the defunct corporation, on these grounds: "That heretofore and during the pendency of this action and on the 14th day of March, 1927, Osage Syndicate, Incorporated, a corporation for a valuable consideration by it duly paid, became the owner of all of the property theretofore owned by the plaintiff in this action located in Butler County, Kansas, including the cause of action of the plaintiff in the foregoing action against the defendant, Isador Molk, and ever since said date and is now the owner of such cause of action, together with all rights therein and incident thereto." This motion was supported by an affidavit verifying the facts on which substitution of parties was sought.

From The trial court's rulings denying substitution of parties and dismissing the action, the Osage Syndicate, Incorporated, assigns error. It directs our attention to R. S. 60--415, which provides that an action does not abate by the death or other disability of a party litigant, or by the transfer of an interest in the subject-matter of the litigation, during the pendency of the action, if the action can be one which survives or continues. In any such case the action may be continued by the representative of the deceased or disabled party or by his successor in interest. This section also provides that the action may be continued in the name of the original party or substitution of his successor in interest may be permitted. All this is very simple, proper, and practical, but it is not all the pertinent law on the question we have to consider. When a litigant dies, any action in which he was a necessary party becomes dormant until there is a revivor in the name of a substituted litigant who has authority to carry on the dead man's part of the litigation. We are not presently concerned with the situation which arises when there are other parties whose rights or liabilities are in issue which can be adjudicated, notwithstanding the death of a coplaintiff or codefendant. The pertinent provisions of the Code which govern the legal question of present concern are R. S. 60--3207, which provides that, where a party to an action dies and the action is one which survives in favor of or against his representatives or successors, it may he revived in their names; R. S. 60--3208, which provides that revivor shall be by order of the court or judge; R. S. 60--3212, which provides that upon the death of a plaintiff the action may be revived in the name of his representatives to whom his right has passed, and, if it passed to his heirs or devisees, revivor may be in their names; and R. S. 60--3215, which reads: "An order to revive an action in the names of the representatives or successors of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section."

It is needless to cite or quote further from other relevant provisions of the Code. When the charter of the Arkansas River Gas Company was forfeited, the action was technically suspended. The ex officio trustees of the corporation had statutory power to continue...