Union Pacific Railway Co. v. Gochenour

Supreme Court of Kansas

Union Pacific Railway Co. v. Gochenour

43 P. 1135, 56 Kan. 543, 1896 Kan. LEXIS 58

CourtSupreme Court of Kansas

DecidedMarch 7, 1896

DocketNo. 8178

StatusPublished

This text of 43 P. 1135 (Union Pacific Railway Co. v. Gochenour) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Union Pacific Railway Co. v. Gochenour, 43 P. 1135, 56 Kan. 543, 1896 Kan. LEXIS 58 (kan 1896).

Pincite

Opinion

The opinion of the court was delivered by

Allen, J.

: This action was brought by the Union Pacific Railway Company to recover on three promissory notes for $720 each, executed by David Goehenour to Albert E. Warren, and by him indorsed to the Kansas Pacific Railway Company, and to foreclose a mortgage on a section of land given to secure the payment of the same. The petition alleges the indorse[544]*544ment of the notes and the assignment of the mortgage by Warren to the Kansas Pacific Railway Company, and the plaintiff claims title to the notes and mortgage by consolidation with and as the legal successor of said company. The evidence introduced by the plaintiff shows that on the 26th day of January, 1880, the Kansas Pacific Railway Company was consolidated with the Union Pacific Railway Company and the Denver Pacific Railway and Telegraph Company, forming the Union Pacific Railway Company, plaintiff in this action. The indorsements on the notes appear without date, but the assignment of the mortgage, which by its terms also transfers the notes sued on, was made on the 11th of March, 1880, more than six weeks after the consolidation. The articles of consolidation were introduced in evidence, and show that the Kansas Pacific Railway Company did not at once become extinct by reason thereof, but was to continue in existence for the purpose of settling its liabilities. This provision of the articles of consolidation has been held valid by this court in the case of Whipple v. U. P. Rly. Co., 28 Kan. 474. The only parties to this action are the plaintiff and the different defendants who claim an interest in the lands. Neither Albert E. Warren nor the Kansas Pacific Railway Company is in court. There are no averments in the petition of mistake by which the assignment was made to the Kansas Pacific company instead of the Union Pacific, nor is there any statement showing that the consideration paid for the notes moved from the Union Pacific company. Under this state of the case, the plaintiff appears to have no title to the notes. This question was directly raised by the pleadings. The articles of consolidation contain no provision under which promissory notes afterward acquired by the Kansas Pacific [545]*545Railway Company would pass to the plaintiff. As this is necessarily decisive of the case, we have deemed it unnecessary to closely examine the questions raised on the motion to dismiss, as well as the other matters discussed in the briefs.

The judgment is affirmed.

All the Justices concurring.

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The opinion of the court was delivered by

Allen, J.

: This action was brought by the Union Pacific Railway Company to recover on three promissory notes for $720 each, executed by David Goehenour to Albert E. Warren, and by him indorsed to the Kansas Pacific Railway Company, and to foreclose a mortgage on a section of land given to secure the payment of the same. The petition alleges the indorse[544]*544ment of the notes and the assignment of the mortgage by Warren to the Kansas Pacific Railway Company, and the plaintiff claims title to the notes and mortgage by consolidation with and as the legal successor of said company. The evidence introduced by the plaintiff shows that on the 26th day of January, 1880, the Kansas Pacific Railway Company was consolidated with the Union Pacific Railway Company and the Denver Pacific Railway and Telegraph Company, forming the Union Pacific Railway Company, plaintiff in this action. The indorsements on the notes appear without date, but the assignment of the mortgage, which by its terms also transfers the notes sued on, was made on the 11th of March, 1880, more than six weeks after the consolidation. The articles of consolidation were introduced in evidence, and show that the Kansas Pacific Railway Company did not at once become extinct by reason thereof, but was to continue in existence for the purpose of settling its liabilities. This provision of the articles of consolidation has been held valid by this court in the case of Whipple v. U. P. Rly. Co., 28 Kan. 474. The only parties to this action are the plaintiff and the different defendants who claim an interest in the lands. Neither Albert E. Warren nor the Kansas Pacific Railway Company is in court. There are no averments in the petition of mistake by which the assignment was made to the Kansas Pacific company instead of the Union Pacific, nor is there any statement showing that the consideration paid for the notes moved from the Union Pacific company. Under this state of the case, the plaintiff appears to have no title to the notes. This question was directly raised by the pleadings. The articles of consolidation contain no provision under which promissory notes afterward acquired by the Kansas Pacific [545]*545Railway Company would pass to the plaintiff. As this is necessarily decisive of the case, we have deemed it unnecessary to closely examine the questions raised on the motion to dismiss, as well as the other matters discussed in the briefs.

The judgment is affirmed.

All the Justices concurring.

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Bluebook (online)

43 P. 1135, 56 Kan. 543, 1896 Kan. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-pacific-railway-co-v-gochenour-kan-1896.

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