MacRae v. The Kansas City Piano Company

• Decision Date: 08 March 1902
• Docket Number: 12,246
• Citation: 64 Kan. 580,68 P. 54
• Parties: J. D. MACRAE v. THE KANSAS CITY PIANO COMPANY
• Court: Kansas Supreme Court

68 P. 54

64 Kan. 580

J. D. MACRAE v. THE KANSAS CITY PIANO COMPANY

No. 12,246

Supreme Court of Kansas

March 8, 1902

Decided January, 1902.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Objection to Deposition. An objection to a deposition because the notary taking the same did not attach to his certificate a United States revenue stamp relates not to its competency or relevancy but to its authentication, and such objection, if good at all, must be made in writing and filed with the clerk before the commencement of the trial. (Gen. Stat. 1901, §§ 4811, 4812.)

2. EVIDENCE -- Proof of Public Records. The records or files of a public office can be proved only by the originals or certified copies thereof, as required by section 4820 of the General Statutes of 1901. SYLLABUS BY THE COURT.

Sankey & Campbell, for plaintiff in error.

Amidon & Conly, for defendant in error.

GREENE J. SMITH, CUNNINGHAM, JJ., concurring.

OPINION

GREENE, J.:

This was an action in replevin brought by defendant in error, a corporation organized under the laws of the state of Missouri, against plaintiff in error, in the district court of Sedgwick county, to recover the possession of a piano, of which the plaintiff claimed to be the owner. The defense was that the plaintiff had sold the piano in question to one Mrs. Cronkwright, who then lived in Oklahoma, and that, under a tax-warrant for unpaid taxes issued in said territory against Mrs. Cronkwright, the piano was sold to one Sullivan, who thereafter sold it to the defendant. Judgment was rendered for the plaintiff and the defendant prosecuted proceedings in error.

The defendant in error moved to dismiss this cause for the reason that the case-made was not made and served within time. There is no merit in this motion and it is overruled.

Outside the record, and independent of it, the plaintiff in error applies to this court by motion to vacate the judgment of the court below. This application is on the ground that since the defendant in error commenced its action in the court below, it has been dissolved by the voluntary act of its stockholders. In support of such application, plaintiff in error quotes section 1018, volume 1, Revised Statutes of Missouri, 1899, which provides: "The president or secretary of every domestic incorporated company in this state, when it shall dissolve, . . . is hereby required to file with the secretary of state an affidavit to that effect." Plaintiff also offers the following affidavit:

"Geo. Bindbentel, secretary of the Kansas City Piano Company, being duly sworn, upon his oath states that said corporation was, on the 7th day of February, 1898, by a majority of its stockholders, duly dissolved and is no longer in existence.

GEORGE BINDBENTEL, Secretary."

We are not informed what provisions the Missouri statutes make for winding up the business of a dissolved corporation, but we must presume that their statute is like our own. (Rogers v. Coates, 38 Kan. 232, 16 P. 463; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 412, 11 P. 408, 57 Am. Rep. 176; Holthaus v. Farris, 24 id. 784; Speer v. M. K. & T. Rly. Co., 23 id. 572.) Section 1312 of the General Statutes of 1901 provides:

"Upon the dissolution of any corporation, . . . the president and directors, or managers of the affairs of the corporation, at the time of the dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders. . . ."

The judgment in this case did not become void because the corporation became dissolved after the action was commenced or after judgment was rendered. Such judgment is an asset in the hands of the trustees of the corporation for the benefit of its creditors and stockholders. The application is therefore overruled.

The plaintiff in error complains that the court erred in overruling its objection to one of the depositions read by plaintiff below. The objection was that the notary before whom the deposition was taken did not attach to his certificate a revenue stamp, as required by section 14 of the revenue laws of 1898. The objection was made orally at the trial at the time the deposition was offered in evidence. Section 4811 of the General Statutes of 1901 provides that "exceptions to depositions shall be in writing specifying the grounds of objection, and filed with the papers in the cause." Section 4812...