Hodgson v. McKinstrey

• Decision Date: 01 October 1895
• Docket Number: 60
• Parties: R. W. HODGSON v. ROBERT E. MCKINSTREY
• Court: Kansas Court of Appeals

42 P. 929

3 Kan.App. 412

R. W. HODGSON v. ROBERT E. MCKINSTREY

No. 60

Court of Appeals of Kansas, Southern Department, Central Division

October 1, 1895

Opinion Filed December 7, 1895.

MEMORANDUM.--Error from Kingman district court; S.W. LESLIE judge. Action by Robert E. McKinstrey against R. W. Hodgson to recover on an appeal bond. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed December 7, 1895, states the material facts.

Judgment reversed and case remanded.

S. S Ashbaugh, for plaintiff in error.

JOHNSON, P. J., All the Judges concurring.

OPINION

JOHNSON, P. J.:

Robert E. McKinstrey attempted to commence an action before a justice of the peace against the Citizens National Bank of Kingman, Kansas, a former banking corporation organized under the laws of the United States, and upon attempted service of a summons upon R. W. Hodgson, the former president of said banking corporation, a judgment was pretended to be rendered for the plaintiff below, and thereafter an appeal bond was filed, signed by R. W. Hodgson, as surety, and the cause taken to the district court; and thereafter such proceedings were pretended to be had as resulted in a pretended judgment in favor of McKinstrey against the Citizens National Bank of Kingman, Kansas; afterward execution was issued on such judgment, and returned unsatisfied, and this suit was then instituted in the district court of Kingman county, Kansas, by Robert E. McKinstrey against R. W. Hodgson upon such appeal bond. The petition of the plaintiff below was an ordinary petition on the bond, setting forth the commencement of the suit before the justice of the peace, rendition of judgment, the signing of the appeal bond by R. W. Hodgson, its approval by the justice of the peace, with a copy of said bond attached; the trial of the case in the district court on the appeal; the rendition of judgment therein in favor of Robert E. McKinstrey against the Citizens National Bank of Kingman, Kansas; the issuance of execution thereon; the return thereof not satisfied; and praying judgment against said Hodgson for the amount of the judgment, interest, and costs. To this petition the said R. W. Hodgson made his answer, setting up three separate defenses. The first defense admits the signing of the appeal bond, but denies that the suit wherein the appeal bond was given was at that time, or at any time, legally pending against the Citizens National Bank of Kingman. The second defense is as follows:

"And for a further and more particular answer herein, defendant alleges that on the 24th day of December, 1888, the said Citizens National Bank, the defendant in the action wherein said bond was given, as set out in plaintiff's petition went into voluntary liquidation and dissolution, and its existence as a corporation was on that day, to wit, December 24, 1888, entirely terminated and forever ended; and that this result was reached by reason of the said bank having prior to that day duly and properly taken and pursued all the steps and done all the acts provided and required by the statutes of the United States for the voluntary liquidation and dissolution of national bank corporations organized under and by virtue of said statutes; that the pretended service of process upon said Citizens National Bank, as set out in plaintiff's petition, and the pretended appearance of said bank, by its attorneys or otherwise, was utterly null, void, and of no effect, because and by reason of the said voluntary liquidation and dissolution of said corporation defendant, prior thereto, to wit, on said 24th day of December, 1888; and further denies that any legal or valid judgment was ever, at any...