Hyde Park Inv. Co. v. First Nat. Bank of Atchison

• Decision Date: 09 November 1895
• Citation: 56 Kan. 49,42 P. 321
• Parties: HYDE PARK INV. CO. et al. v. FIRST NAT. BANK OF ATCHISON.
• Court: Kansas Supreme Court

42 P. 321

56 Kan. 49

HYDE PARK INV. CO. et al. v. FIRST NAT. BANK OF ATCHISON.

Supreme Court of Kansas

November 9, 1895

Syllabus

1. The absence of a party from a proceeding in error who may be prejudicially affected by a modification or reversal of a judgment defeats the jurisdiction of the supreme court, and prevents a review of any of the rulings made in the cause.

2. Several years after the proceedings in error were instituted a necessary party, who was not brought into the proceedings, died, and shortly afterwards the heirs of the deceased party and the administrator of his estate applied to the supreme court to revive the judgment rendered by the district court in favor of the deceased, but did not ask to revive the proceedings in error in the supreme court. Held, that the application should have been made in the district court, and that it did not cure the defect of parties in the supreme court.

Error from district court, Atchison county; B. P. Waggener, Judge pro tem.

Action by the First National Bank of Atchison against the Hyde Park Investment Company and others. Judgment against the investment company, which brings error against the bank, which also filed a cross petition against defendant King. Dismissed.

Seneca Heath and Henry Elliston, for plaintiff in error.

B. F. Hudson, for defendant in error.

OPINION

JOHNSTON, J.

In 1887, Jesse C. Crall owned about 17½ acres of land near the city of Atchison, which he sold to Samuel C. King for $17,000. The purchase was made by King for a syndicate of 15 persons, but the deed from Crall was taken and held in King’s name until the persons composing the syndicate had organized themselves into a corporation. Crall took two shares in the purchase, of $1,000 each, leaving $15,000 due to him upon the land, one-half of which was paid when the deed from Crall was executed, and for the balance King executed a note or paper promising to pay $7,500 one year after date, out of the proceeds of the sale of the land only without any personal liability on his part, with interest thereon from date at the rate of 8 per cent. per annum. At the same time he executed a mortgage upon the land to secure the payment of the debt according to the terms of the note or paper above mentioned. Soon afterwards, the persons composing the syndicate for whom the land was purchased and held by King organized a corporation called the Hyde Park Investment Company, and the land was then conveyed to the corporation by King. Shortly afterwards Crall borrowed about $4,000 from the First National Bank of Atchison, and, to secure the payment of the same, transferred to the bank the note and mortgage executed by King. Neither of the debts mentioned was paid when it became due, and the bank brought an action on the note executed by King, and assigned to it by Crall, asking a personal judgment against both King and Crall. The Hyde Park Investment Company was made a party because it claimed an interest in the mortgaged property, and the bank also asked a foreclosure of the mortgage. Crall answered, admitting the indorsement and transfer of the note and mortgage, and alleging that they had been transferred only as collateral security for a personal loan from the bank of $4,030, and that, when the King note and mortgage were collected, his debt to the bank should be first paid out of the proceeds, and the balance of the proceeds remaining after paying that debt should be paid to him. King answered that in the sale of the land he only acted in the capacity of agent or trustee, and that he did not become personally liable for the payment of the debt in...