Naftzger v. The Kansas City Piano Company

• Decision Date: 11 June 1904
• Docket Number: 13,656
• Citation: 77 P. 94,69 Kan. 457
• Parties: J. D. MACRAE AND L. S. NAFTZGER v. THE KANSAS CITY PIANO COMPANY
• Court: Kansas Supreme Court

77 P. 94

69 Kan. 457

J. D. MACRAE AND L. S. NAFTZGER v. THE KANSAS CITY PIANO COMPANY

No. 13,656

Supreme Court of Kansas

June 11, 1904

Decided January, 1904.

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

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS -- Effect of Dissolution. After the dissolution of a corporation it no longer possesses power to do any business, maintain any action, or enforce any judgment theretofore rendered in its favor, except by virtue of some statute authorizing it or some principle of equity requiring it.

2. REPLEVIN -- Judgment in the Alternative -- Condition Precedent to Enforcement. In an action in replevin where the defendant gave a redelivery bond and retained possession of the property in controversy, judgment was rendered in favor of the plaintiff for the recovery of possession of the property and, in the event of his inability to obtain such possession or defendant's failure to deliver it, for the recovery of a certain sum, it is held, that it was the duty of the defendant to tender back the possession of the replevied property, and not the duty of the plaintiff to demand it, as a condition precedent to the enforcement of the money judgment.

Adams & Adams, for plaintiffs in error.

S. B Amidon, and J. F. Conly, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The Kansas City Piano Company brought its action in replevin against J. D. MacRae to recover the possession of a piano. A redelivery bond was given by MacRae, with L. S. Naftzger, one of the plaintiffs in error, as surety, and the instrument retained. The piano company had judgment for the recovery of the possession of it and, upon its inability to obtain it or MacRae's failure to deliver it, for the recovery of the sum of $ 200. To reverse that judgment MacRae brought proceedings in error in this court, but it was affirmed. ( MacRae v. Piano Co., 64 Kan. 580, 68 P. 54, 56 L. R. A. 924, 91 Am. St. Rep. 236.)

After the final determination of that action the piano company caused garnishment summons to be issued and served on plaintiff in error Naftzger. In this garnishment proceeding MacRae filed his answer setting out the reasons why the funds in the hands of Naftzger belonging to him should not be subjected to the payment of the above money judgment against him. The first reason, briefly summarized, was that, after the commencement of the action and prior to the rendition of the judgment, the piano company, which was a Missouri corporation, had been dissolved in accordance with the law of its domicile; that more than one year had elapsed since its dissolution, and the action had not been revived in the name of the real parties in interest or the successors in interest of the company, or in the name of any one authorized further to prosecute the case. He set out the statute of the state of Missouri in force at the time of the dissolution of the corporation, which, in so far as it relates to the persons who are authorized to carry on pending litigation on behalf of the stockholders thereof, is substantially the same as the Kansas statute (Gen. Stat 1901, § 1312). This provides that the directors or managers of a dissolved corporation shall be trustees for the creditors and stockholders thereof, and as such may maintain judicial proceedings for the purpose of collecting debts due to such corporation. The Missouri statute specifically provides that such proceeding shall be "by the name of the trustees of such corporation, describing it by its corporate name" (1 Rev. Stat. [Mo.] 1899, § 976). The second defense pleaded that no demand had been made upon MacRae for the possession of the piano in question after the rendition and affirmance of the judgment, and claimed that inasmuch as the money judgment was in the alternative it could be enforced only in the event that possession of the replevied piano could not be had, and that no proceeding to collect the money judgment could be maintained until after a demand had been made and refused. Defendant Naftzger adopted the answer of MacRae, and added that the money in his hands belonging to MacRae was deposited with him for the purpose of securing him. as surety on the redelivery bond and...