
    Amelia Wagner et al. v. The Atchison, Topeka & Santa Fe Railroad Company et al.
    
    No. 540.
    (58 Pac. 1018.)
    
      Railroads — Consolidation—Action against Original Company. “Where a railroad 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.” (IT. O. & T. Sly. Co. v. Smith, 40 Kan. 192, 19 Pac. 636.)
    Error from Sumner district court; J. A. Burnette, judge.
    Opinion filed November 20, 1899.
    Affirmed.
    
      Bentley & Hatfield, and James Lawrence, for plaintiffs in error.
    
      A. A. Hurd, and F. W. Bentley, for defendants in error.
   The opinion of the court was delivered by

Schoonover, J. :

This action was brought by plaintiffs in error, as plaintiffs, to recover possession of a strip of land containing about five acres, used by defendants in error as part of the right of way for their railroad. The case was tried upon an agreed statement of facts, judgment rendered in favor of defendants, and plaintiffs bring the case here.

The agreed statement of facts shows that the land in suit had been legally condemned for the use of the Le Roy & Western railway as a right of way, and that the railway company did all things necessary under sections 3 and 4 of chapter 68, General Statutes of 1897 (Gen. Stat. 1899, §§1320, 1321), to give it the right to occupy the right of way and use it; that within the time limited by law the plaintiffs appealed from the award of the condemnation commissioners to the district court of Sumner county, and that the railway duly filed its right-of-way bond, which was approved by the county clerk of Sumner county; that after such appeal had been taken and before it-came on to be heard in the district court the Le Roy & Western Railway Company, together with other railway companies iu the state of Kansas, consolidated under the name of the Chicago, Kansas & Western Railroad Company, one of the defendants in this case, and that by said act of consolidation the Chicago, Kansas & Western Railroad Company, became the owner of all rights, franchises and property formerly appertaining and belonging to said Le Roy & Western Railway Company ; and that after such act of consolidation the appeal taken by plaintiff from the award of the condemnation commissioners came on for hearing in the district court of Sumner county before a court and jury.

The jury returned a verdict in favor-of the plaintiffs, awarding them the sum of $1132.65 as and for their' damages on account of such condemnation proceedings, and judgment was rendered thereon by said district court, confirming said award against the Le Roy & Western Railway Company, and for costs. Neither party to this action was ever made a party to said appeal in any way, and never took any part in the proceedings therein, and said sum of $1132.65 awarded by the jury against the Le Roy & Western Railway Company upon said appeal has never been paid, nor any part thereof. It also appears that after the consolidation the Chicago, Kansas & Western railway was leased to the Atchison, Topeka & Santa Fe Railroad Company, one of the defendants.

As the agreed statement of facts shows that the Le Roy & Western Railway Compay did everything neccessary under the law to entitle it to take the land in suit and use it for a right of way, the plaintiffs must look to the result of. their appeal for a basis of any legal or equitable right to eject the railroad company. It, therefore, becomes material for us to determine whether the appeal was prosecuted to judgment. This question is negatively answered by the case' of K. O. & T. Rly. Co. v. Smith, 40 Kan. 192, 19 Pac. 636, wherein the supreme court held :

“Where a railroad 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.”

The agreed statement of facts shows that the suit was brought before the act of consolidation, and that no motion was at any time made to substitute the defendants in this action for the Le Roy & Western Railway Company, and that at the time the case came on for hearing such railway company had ceased to exist as a corporate entity. Any judgment rendered upon such hearing would, therefore, be void. We must hold, under the authority of the case cited, that the appeal has never been determined, and the judgment of the district court will, therefore, be affirmed.  