
    The Council Grove, Osage City & Ottawa Railway Company v. J. J. Lawrence et al.
    
    No. 96.
    Eailroad Companies — Effect of Consolidation. Where a railf oad company is consolidated with other railroad companies under a new name it ceases to exist as a corporation, and an action brought by or against such railroad company before its consolidation cannot afterward'be prosecuted by or against it or in its original name. (JST.O.& T. Ely. Co. v. Smith, 40 Kan. 192.)
    Memorandum. — Error from Franklin district court; • A. W. Benson, judge. Action by J. J. and Martha Lawrence against The Council Grove, Osage City & Ottawa Railway Company to recover. damages for refusal to construct and maintain a crossing', Judgment for plaintiffs. Defendant brings the case to this court.
    Dismissed.
    The opinion herein, filed May 8, 1896, states the material facts.
    
      Waggener, Horton & Orr, appearing to call the attention of this court to the erroneous and void judgment rendered against The Council Grove, Osage City & Ottawa Railway Company, a defunct and dead corporation.
    
      H. P. Welsh, for defendants in error.
   The oxiinion of the court was delivered by

Cole, J. :

This was an action for damages brought by defendants in error for the alleged neglect.and refusal of plaintiff in-error to construct and maintain a crossing for the passage of teams and stock over its line of railroad running through the lands, of defend'ants in error. Prom the verdict and judgment against the railway company it brings the case here for review.

■ Our attention is first called to a motion filed by defendants in error to dismiss the proceedings in error in this case, for the reason that the record discloses that the Council Grove, Osage City & Ottawa Railway Company, after the beginning of said action, was consolidated with several other railroad companies, and is, therefore, a defunct corporation, and lias no power to prosecute an action in this or any other court. The record discloses that the. plaintiff in error was consolidated with a number of' other corporations under the name of the Kansas & Colorado Pacific Railway Company, and that such consolidation took place after the commencement of this action and before judgment was rendered therein. -

Under the decisions of K. O. & T. Rly. Co. v. Smith, 40 Kan. 192, and Cunkle v. Interstate Rld. Co., 54 id. 194, whenever a railroad company is consolidated with other railroad companies under a new name it ceases to exist as a corporation, and no action can be maintained either by or against it. In the language of Valentine, J., in the case of K. O. & T. Rly. Co. v. Smith, supra, “This case is where the original party has ceased to exist, has become defunct, is dead, and therefore not able either to prosecute or defend.” We are of the opinion that every step that has been taken against the railroad company since its consolidation, including the verdict and judgment in this case, is void; but as it cannot appear in this court either to prosecute or defend the action, there has ceased to be a plaintiff in error in this case, or we might more correctly say there never has been one.

The motion must therefore be sustained, and the action dismissed.

Dennison, J., concurring.

Johnson, P. J., not sitting, having been of counsel.  