Prescott v. Farmers’ Nat. Bank of Salina

• Decision Date: 06 May 1898
• Parties: PRESCOTT et al. v. FARMERS’ NAT. BANK OF SALINA.
• Court: Kansas Court of Appeals

53 P. 769

9 Kan.App. 886

PRESCOTT et al. v. FARMERS’ NAT. BANK OF SALINA.

Court of Appeals of Kansas, Northern Department, Central Division

May 6, 1898

Error from district court, Saline county; R. F. Thompson, Judge.

Proceeding by the Farmers’ National Bank of Salina against Mary E. L. Prescott and others. Judgment for plaintiff, and defendants bring error. Reversed.

John D. Milliken and David Ritchie, for plaintiffs in error.

Bond &amp Osborn and Garver & Larimer, for defendant in error.

OPINION

PER CURIAM.

Defendant in error moves to dismiss the petition in error in this case for the reason that there is a misjoinder of parties plaintiff. The Farmers’ National Bank instituted proceedings jointly against the plaintiffs in error to charge them as stockholders in the Lone Star Plaster Company by having an execution issued against them based upon a judgment recovered against the Lone Star Plaster Company by the bank. There was a joint judgment against all of the plaintiffs in error. This being the case, they had a right to prosecute as plaintiffs in error jointly to reverse this judgment. The motion to dismiss must be denied. This case, in its facts regarding the jurisdiction of the court, comes clearly within the rule laid down by this court in Bradley v. Harwi, 2 Kan.App. 272, 42 P. 411. The defendant in error bank had judgment against the Lone Star Plaster Company in the district court of Saline county. Execution was returned, and the bank proceeded against the plaintiffs in error as stockholders. The president of the Lone Star Plaster Company was also the managing officer of the bank. Before suit was begun, he entered into an agreement to appear in the district court, and waive service of summons, and at the time the petition was filed this agreement to appear was likewise filed by counsel for the bank. It was contended by the defendant in error that because this agreement was filed at the same time the petition was filed at the same time the petition was filed therefore the case does not come within the rule laid down in the Harwi Case; that that fact was sufficient to give the court jurisdiction. We cannot limit the rule adopted by this court in that case to the extent claimed in this contention. The district court was doubtless without jurisdiction to render judgment against the Lone Star Plaster Company; hence it was a nullity, and the execution issued thereon was likewise a nullity. The plaintiffs in error had a right to avail themselves of this defect in the record to defeat the action of the bank against them as stockholders in the Lone Star Plaster Company. This conclusion renders it unnecessary for us to consider the other assignments of error in the case. The judgment of the district court must be reversed, and the case remanded to the district court, with directions to render judgment for the defendants in the case.

WELLS J. (dissenting).

I am unable to agree with the majority of the court upon either of the questions at issue herein. I am of the opinion that the motion to dismiss the proceedings in error for the misjoinder of plaintiffs in error should be sustained. In Bank v Magnuson, 57 Kan. 574, 47 P. 518, it was held in the same kind of a case that the liability of the stockholders is several, and not joint, and the proceedings against each is an independent proceeding. See, also, Abbey v. Dry-Goods Co., 44 Kan. 415, 24 P. 426. The majority of the court in their opinion say: "This case, in its facts regarding the jurisdiction of the court, comes clearly within the rule laid down by this court in Bradley v. Harwi, 2 Kan.App. 272, 42 P. 411." I do not think so. That was upon a contract entered into 16 days prior to the filing of the petition, in the following form: "Hill City, Graham County, Kan., March 21, 1891. In the case of Harwi & Lank vs. Bradley, Wheeler & Co. and H. A. Coffin, Jr., and W. R. Hill, in the Norton county district court, we, H. A. Coffin, Jr., and W. E. Hill, in view of the fact that the judge of the district court of Graham county, Kansas, is disqualified to sit in said cause, having been of counsel before, and that all of the attorneys in said county have been interested in said cause, or the transaction out of which the cause of action arose, and as of necessity this case would be transferred to an adjacent county,...