M. D. Wells & Co. v. Robb

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HORTON, C. J.:
• Citation: 43 Kan. 201,23 P. 148
• Decision Date: 08 February 1890
• Parties: M. D. WELLS & COMPANY v. C. M. ROBB et al

23 P. 148

43 Kan. 201

M. D. WELLS & COMPANY
v.
C. M. ROBB et al

Supreme Court of Kansas

February 8, 1890

[23 P. 149]

Error from Lyon District Court.

M. D. Wells & Company commenced an action against C. M. Robb et al., before a justice of the peace of Lyon county, on the 5th day of May, 1887. The following is a copy of the bill of particulars, omitting title:

"Plaintiffs allege that they are now and for more than six years last past have been copartners, doing business as M. D. Wells & Co.; that the defendants, and others, whose names are to these plaintiffs unknown, are and for more than six years last past have been members of a society or association known as 'The Ivy Grange;' that the Lyon County Cooperative Association is now and for more than six years last past has been a corporation duly organized and existing under and by virtue of the general laws of the state of Kansas; that the said 'Ivv Grange' subscribed to, and became and still is the owner of, twenty shares of five dollars each of the capital stock of said The Lyon County Cooperative Association; that on the 20th day of November, 1884, in the district court of Lyon county, Kansas, in an action therein pending wherein the plaintiffs herein were plaintiffs and the said Lyon County Cooperative Association was defendant, said plaintiffs duly recovered a judgment against said defendant therein in the sum of $ 1,583; that an execution has been issued upon said judgment to the sheriff of Lyon county, and by him returned unsatisfied; that said judgment is still unpaid; that on the 25th day of November, 1884, said Ivy Grange was duly served with a notice of such judgment, and that execution would be ordered against the shareholders in said Lyon County Cooperative Association.

"Wherefore, plaintiffs demand judgment against the defendants and each of them in the sum of $ 100."

A judgment was rendered in the justice's court in favor of the plaintiffs and against the defendants. An appeal was taken to the district court, and the case was tried there at the February term, 1888, upon the following agreed statement of facts:

"It is agreed that this case shall be submitted to the court upon the following agreed statement of facts: That the plaintiffs, on the 20th day of November, 1884, obtained a judgment in the sum of $ 1,500 in the district court of Lyon county, Kansas, against the Lyon County Cooperative Association, which was a corporation organized under the laws of the state of Kansas; that on the 27th day of October, 1884, defendants W. L. McLaughlin & Co. and Samuel Bliss each obtained a separate judgment against said company or corporation in a justice's court in the county of Lyon for the sum of $ 47.75, and $ 85.25, respectively; that the other defendants were each members of a society or association known as 'The Ivy Grange,' an unincorporated society organized for social purposes, its members being generally known as 'grangers;' that F. H. Lyon was also a member of said grange, and during the year 1884 was its master, and presided at the meetings of the grange, and had the usual powers of a presiding officer; that said grange during the year 1884 owned twenty shares of the capital stock of the Lyon County Cooperative Association, of the face value of five dollars per share; that in November, 1884, executions were issued upon the judgment in favor of the plaintiffs and upon the judgments in favor of the defendants McLaughlin & Co. and Samuel Bliss, against the said Lyon County Cooperative Association, and each of said executions was returned wholly unsatisfied; that thereafterward, and in the year 1884, and after the return of the execution on the judgment in favor of plaintiffs unsatisfied, the plaintiffs caused a written notice to be served upon said Ivy Grange by delivering the same to F. H. Lyon, of which the following is a true copy, save and except the title of cause omitted, and the names of the parties to whom it was addressed omitted; but that included in the names of the parties to whom said notice was addressed, among whom was the Ivy Grange and others, stockholders of the Lyon County Cooperative Association, to wit:

"'You and each of you will take notice that the plaintiffs in the above-entitled cause of action did, on the 20th day of November, 1884, at the September, 1884, term of said district court, by the consideration of said court recover a judgment against the defendant, The Lyon County Cooperative Association, for the sum of $ 1,583, damages, and the costs of the action, taxed at $ 10.75; that an execution has been issued upon said judgment to the sheriff of Lyon county, Kansas, and by him returned wholly unsatisfied, there having been no property belonging to defendant in said action found whereon to levy such execution. Now this is to notify each one of you who are hereinbefore named, that on Tuesday, the 3d day of March, 1885, at the hour of 10 o'clock A. M. on said...