N. A. Kennedy Butter Tub Company v. The First and Hamilton National Bank of Fort Wayne

• Decision Date: 12 January 1924
• Docket Number: 24,839
• Parties: N. A. KENNEDY BUTTER TUB COMPANY, Appellant, v. THE FIRST AND HAMILTON NATIONAL BANK OF FORT WAYNE, INDIANA, Interpleader, Appellee
• Court: Kansas Supreme Court

222 P. 754

115 Kan. 63

N. A. KENNEDY BUTTER TUB COMPANY, Appellant, v. THE FIRST AND HAMILTON NATIONAL BANK OF FORT WAYNE, INDIANA, Interpleader, Appellee

No. 24,839

Supreme Court of Kansas

January 12, 1924

Decided January, 1924.

Appeal from Wyandotte district court, division No. 2. FRANK D HUTCHINGS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Petition--Mistake in Name of Plaintiff--Mistake May Be Cured by Amendment. Where words descriptive of a defendant are, by mistake, used in the title of an action as "The Vail Cooperage Company, a corporation," and an allegation is also, by mistake, inserted in the petition and affidavit for garnishment that such defendant is a corporation, the petition may be amended by striking such words from the title and the allegation from the petition.

2. SAME--Amendment Did Not Change Cause of Action. The amendment of a petition in the manner above stated does not substantially change the cause of action and is authorized by the civil code (§ 140, R. S. 60-759.)

3. JURISDICTION--General Appearance--Asking Affirmative Relief--Waiver of Any Defects in Original Process. Where a party entered his voluntary appearance and appealed to the general jurisdiction of the court for an affirmative order beneficial to himself, he was not in position to assert that the original proceedings in the action were void.

Edwin S. McAnany, Maurice L. Alden, Thomas M. VanCleve, Charles A. Blair, all of Kansas City, Kan., J. H. Lathrop, T. R. Morrow, J. M. Fox, and S.W. Moore, of Kansas City, Mo., for the appellant.

A. L. Berger, of Kansas City, and Vesey & Vesey, of Fort Wayne, Ind., for the appellee.

Hopkins, J. Harvey, J., dissenting.

OPINION

HOPKINS, J.:

The action was for damages for failure to deliver goods, wares and merchandise on contract. The plaintiff was a resident of Wyandotte county. The defendant, A. T. Vail, was a nonresident, doing business under the trade name of "The Vail Cooperage Company" at Fort Wayne, Indiana. The interpleader was a national bank of Fort Wayne, Indiana. The present controversy is between the plaintiff and the interpleader involving the validity of garnishment proceedings inaugurated by the plaintiff at the commencement of the action. The interpleader prevailed and plaintiff appeals.

Pleadings in the action were filed and process issued in the following order: Plaintiff's petition filed, summons for defendant issued to the sheriff of Wyandotte county, affidavit in garnishment filed, summons in garnishment issued directed to the Hauber Cooperage Company of Wyandotte county, all on October 13, 1920, answer of garnishee, Hauber Cooperage Company, and affidavit of service by publication, filed October 20, 1920, publication notice for three weeks, October 22, October 29, and November 5, 1920. Answer day, December 6, 1920. Interplea of First and Hamilton National Bank, filed December 4, 1920.

In plaintiff's petition, affidavit in garnishment, and affidavit for service by publication, plaintiff alleged that the defendant, The Vail Cooperage Company, was a corporation organized and existing under and by virtue of the laws of the state of Indiana.

In the caption of plaintiff's petition and in the various papers comprising process in the action, the defendant was designated simply as "The Vail Cooperage Company." The publication notice was directed to "The Vail Cooperage Company." In the caption and also in the body of the answer of the garnishee, the defendant was designated as "The Vail Cooperage Company."

The plaintiff asked damages in the sum of $ 32,845.61 for breach of contract. The garnishee admitted in its answer that it was indebted to "The Vail Cooperage Company" in approximately the sum of $ 3,900. The interplea contained, among others, these allegations:

"Now comes The First and Hamilton National Bank of Fort Wayne, interpleader herein, and for its cause of action and claim for the property and monies garnished in this action, states and alleges: . . .

"That Aaron T. Vail is a resident of Fort Wayne, Indiana, doing business under the trade name of The Vail Cooperage Company; and that the garnishee herein, Frank J. Hauber, is a resident of Kansas City, Wyandotte county, Kansas, doing business under the name of Hauber Cooperage Company . . .

"That on the 18th day of November, 1920, it [the interpleader] loaned to Aaron T. Vail, doing business as Vail Cooperage Company, the sum of four thousand dollars, and that as security on said loan the said Aaron T. Vail concurrently with the making of said loan and as collateral security therefor, and for any other indebtedness . . . to said bank . . . assigned to the interpleader herein . . . accounts against Frank J. Hauber doing business as Hauber Cooperage Company. That a copy of said note so executed by Aaron T. Vail to the interpleader herein, is attached hereto together with a copy of the assignment of the accounts due from the Hauber Cooperage Company to the Vail Cooperage Company, is hereto attached and made a part of this interplea. That immediately upon the taking of the assignment of said accounts, your interpleader herein notified said Hauber Cooperage Company that said account had been assigned to it, . . . that notwithstanding said indebtedness of the Vail Cooperage Company to the interpleader and the assignment of the account as aforesaid, said Hauber Cooperage Company has failed and neglected to pay the same.

"That the plaintiff in this action has no right, title or interest in and to said funds so assigned to this interpleader, and that the monies and property attempted to be garnished in this action, is the monies and property of this interpleader, and that the proceedings wherein the plaintiff is attempting to claim the monies and property in the hands of the Hauber Cooperage Company are illegal and void, and of no force and effect, and that the lien, claim and right of the interpleader herein in and to said monies now in the hands of the Hauber Cooperage Company is prior and paramount of the lien, claim and interest of any other party to this action. . . .

"That said Hauber Cooperage Company became indebted to him [Vail] in approximately the sum of thirty-nine hundred dollars ($ 3,900.00) which accounts said Vail assigned to the interpleader . . . as security on the loan made, as hereinbefore set forth.

"That the Vail Cooperage Company is not a corporation, and that there is not now in existence a corporation by the name of the Vail Cooperage Company, and that said Hauber Cooperage Company is not indebted to any corporation by the name of the Vail Cooperage Company, but that his indebtedness and all of his transactions as hereinbefore mentioned were with Aaron T. Vail, doing business under the trade name of Vail Cooperage Company, and that said indebtedness of the Hauber Cooperage Company has been assigned to the interpleader herein.

"Wherefore, the interpleader herein prays that said monies and property so garnished in this action be released and discharged, and that said funds be ordered paid to the interpleader herein, and that said Hauber Cooperage Company failing to pay the same to the interpleader herein under the order of this court--that then, and in that event this interpleader have judgment against Frank J. Hauber doing business as Hauber Cooperage Company, in the sum of thirty-nine hundred dollars ($ 3,900.00), with interest thereon at the rate of 6% per annum, and costs of this suit taxed at $ "

On October 25, 1921, plaintiff amended its petition and reply to show the defendant Vail doing business under the trade name of "The Vail Cooperage Company" instead of a corporation.

Trial on the interplea was had on July 17, 1922. A stipulation between the parties contained the following:

"2. That in the year 1908 a corporation was organized under the laws of the state of Indiana, known as The Vail Cooperage Company, and among other stockholders was A. T. Vail.

"3. That in the fall of 1918 A. T. Vail, having acquired practically all the stock of the Vail Cooperage Company, a corporation, arranged with the other stockholders of said corporation, to take over and purchase the entire corporate property.

"4. That pursuant to such arrangements, on the 2nd day of December, 1918, by proper resolutions passed by the stockholders of the Vail Cooperage Company, a corporation, all of the property of said corporation was sold and transferred to A. T. Vail, and by said sale he assumed the then existing obligations as shown by the books of the corporation.

"5. That thereafter, and on the 20th day of December, 1918, all of the real estate of said corporation was deeded to A. T. Vail, and since that time said corporation has transacted no business, excepting to wind up its affairs, and ever since said date A. T. Vail has been transacting the business under the trade name of the Vail Cooperage Company.

"6. That late in the year 1919, resolutions in due form were adopted by the stockholders and directors of the Vail Cooperage Company, a corporation, authorizing the dissolution of said corporation, which resolutions were filed in the office of the Secretary of State of Indiana, who issued a certificate showing the filing of said resolutions.

"7. That pursuant to the laws of the State of Indiana said certificate was published in the Fort Wayne, Indiana, papers and proof thereof and final resolutions, dissolving the corporation were filed with said Secretary of State in November, 1919, thereby finally dissolving said corporation."

It is the contention of the interpleader that plaintiff's proceedings were absolutely void because there was no corporation known as "The Vail Cooperage Company," and that its pleadings and process were...