Parsons v. Tetirick

• Decision Date: 11 May 1901
• Docket Number: 12,133
• Citation: 64 P. 1028,63 Kan. 879
• Parties: F. A. PARSONS v. W. C. TETIRICK
• Court: Kansas Supreme Court

64 P. 1028

63 Kan. 879

F. A. PARSONS v. W. C. TETIRICK

No. 12,133

Supreme Court of Kansas

May 11, 1901

Decided July, 1901.

Error from district court, Kingman county; W. O. Bashore, Judge.

Mandamus by W. C. Tetirick against F. A. Parsons, cashier of the Farmers' & Drovers' Bank of Kingman. From a peremptory order granting the writ, defendant brings error. Dismissed.

R. L Holmes, Thomas B. Wall, and Edmund G. Vaughn, for plaintiff in error.

W. C Tetirick, and Bentley & Hatfield, for defendant in error.

OPINION

PER CURIAM.

This is a proceeding in mandamus, originally commenced in the district court, to compel the transfer of 20 shares of the capital stock of the Farmers' & Drovers' Bank of Kingman, Kan., on the books of that corporation. This proceeding was commenced on the 11th day of March, 1893. After the making of various orders upon issues joined certain facts were submitted to and found by a jury in favor of the plaintiff below, and upon such finding a peremptory order was granted directing the transfer of the stock to plaintiff. Upon a transcript of the record, a proceeding in error was prosecuted to the court of appeals, and remained there pending and undetermined at the expiration of the life of that court. The same is now before this court for determination.

As shown by evidence aside from the record, and as conceded in the briefs of counsel, since the making of the order complained of, during the pendency of proceeding in error in the court of appeals, the Farmers' & Drovers' Bank being insolvent, a receiver was appointed, by order of the circuit court of the United States for the district of Kansas, Second division, to wind up the affairs of said bank. On the 24th day of June, 1895, upon report filed by such receiver showing a disposition of all the assets of said bank, the receiver was, by order of that court, discharged. The defendant in error has filed his motion to dismiss this proceeding in error upon the ground that the affairs of said bank have been fully settled, and its officers have, by reason thereof, ceased to exist, and, should this court affirm the order made below, a compliance with such order has become impossible of performance. It has been many times held that if, during the pendency of an appeal, the order of mandamus appealed from is obeyed, or if an order has been applied for and denied, and an appeal perfected therefrom and during its pendency the order, if made, has become impossible of performance, the appeal will be dismissed. Ellis v. Whittaker, 62 Kan. 582, 64 P. 62; Leet v. Board (...