Daughters v. German - American Insurance Company of New York

• Decision Date: 15 October 1900
• Docket Number: 440
• Citation: 62 P. 428,10 Kan.App. 458
• Parties: LULU DAUGHTERS v. GERMAN - AMERICAN INSURANCE COMPANY OF NEW YORK
• Court: Kansas Court of Appeals

62 P. 428

10 Kan.App. 458

LULU DAUGHTERS v. GERMAN - AMERICAN INSURANCE COMPANY OF NEW YORK

No. 440

Court of Appeals of Kansas

October 15, 1900

Decided October, 1900.

Error from Bourbon district court; WALTER L. SIMONS, judge.

Petition dismissed.

SYLLABUS

1. PRACTICE, Courts of Appeals -- Proceedings in Error -- Necessary Party. A party which during the trial, by a proper order of the court, became a coplaintiff in an action wherein a judgment was entered in favor of the defendant for costs held to be a necessary party to the proceedings in error.

2. -- Jurisdiction to Review -- Limitation -- Voluntary Appearance. Jurisdiction to review a judgment complained of in a petition in error, which is invalid by reason of the omission of a necessary party, cannot be conferred or restored, more than one year after the rendition of such judgment, by the voluntary appearance of the omitted party or by the substitution of such party as the assignee of the plaintiff's interest in the subject-matter of the action.

Humphrey & Hudson, and W. W. Padgett, for plaintiff in error.

Fyke Yates, Fyke & Snider, for defendant in error.

OPINION

MILTON, J.:

This action was brought by the plaintiff in error upon a fire-insurance policy for $ 500 issued by the defendant in error. In the course of the trial it developed that after the loss by fire of the insured property, and prior to the commencement of this action, the policy sued upon and another for $ 1500, issued by the Queen Insurance Company upon the same property, had been assigned by the plaintiff to the First National Bank of Fort Scott, as collateral security for the payment of indebtedness aggregating about $ 1100, owing by the plaintiff's husband, E. J. Daughters, to the bank. The record states that "thereupon, by consent of the parties and of the First National Bank, said bank is now made a party plaintiff to this suit, with the agreement on the part of all interested that the judgment shall bind said bank as fully as the plaintiff and the defendant originally named." The journal entry of judgment recites: "Thereupon the parties agreed and the court ordered that the said First National Bank of Fort Scott, Kansas, be made a party to this action as the holder of the assignment of the policy in suit, as collateral security for money loaned by it to E. J. Daughters, and that the trial should proceed without delay." Judgment was rendered on January 20, 1896, in favor of the defendant and against "the plaintiff for its costs." The title of the cause was not changed, and from the journal entry showing the overruling of the motion for a new trial it appears that Mrs. Daughters alone filed the motion. The bank does not seem to have participated in any of the proceedings subsequent to the judgment.

On March 13, 1900, and after the briefs of counsel were filed in this court, but prior to the submission of the case for decision, the bank filed an application to be substituted as plaintiff in error, the application alleging that Lulu Daughters had assigned to the said bank all her interest in the subject-matter of the action. Accompanying the application is an acknowledged assignment in due form, and dated March 10, 1900, transferring to the bank the plaintiff's rights in the premises. In its brief the defendant in error moved to dismiss the petition in error for various reasons, the principal reason being that the First National Bank, although it was the owner of the policy of insurance sued on, and although the judgment was rendered against it in the district court, did not file any motion for a new trial or except to the overruling of the motion filed by Mrs. Daughters, and did not prosecute...