William Walker Implement Co. v. Ellis

Supreme Court of Kansas

William Walker Implement Co. v. Ellis

247 P. 637, 121 Kan. 405, 1926 Kan. LEXIS 108

CourtSupreme Court of Kansas

DecidedJuly 10, 1926

DocketNo. 26,544

StatusPublished

Cited by4 cases

This text of 247 P. 637 (William Walker Implement Co. v. Ellis) 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

William Walker Implement Co. v. Ellis, 247 P. 637, 121 Kan. 405, 1926 Kan. LEXIS 108 (kan 1926).

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Opinion

The opinion of the court was delivered by

Marshall, J.:

The action is to recover on two promissory notes given to the Aultman & Taylor Machinery Company and by that company indorsed to the plaintiff. The defendant demurred to the petition on the ground that the court had no jurisdiction of the person of the defendant or of the subject of the action and that the plaintiff had no legal capacity to sue. The defendant also moved to dismiss the action for the same reasons. The demurrer was overruled, and the motion was denied. The jury returned a verdict for the plaintiff for $2,126.85 as directed by the court, and judgment was entered for that amount. The defendant appeals.

' The petition disclosed that the William Walker Implement Company was owned and managed by William Walker, Jr. The evidence established that fact, and that the plaintiff was neither a partnership nor a corporation.

The only matter urged in the brief of the defendant is that the plaintiff had no legal capacity to sue because it was not an individual, not a partnership, nor a corporation. The petition and evi[406]*406dence disclosed that the plaintiff was William Walker, Jr. The name under which he sued, William Walker Implement Company, was the name under which he did business.

Section 60-401 of the Revised Statutes requires every action to be brought in the name of the real party in interest. William Walker, Jr., was the actual plaintiff, and he was the real party in interest. The defendant was not in any way misled or prejudiced by the manner in which the petition was entitled. Neither issues nor evidence were changed from what they would have been had the action been entitled William Walker, Jr., plaintiff.

By section 60-3317 of the Revised Statutes this court is directed to “disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining where it appears upon the whole record that substantial justice has been done.” That statute controls in the present case.

The judgment is affirmed.

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The opinion of the court was delivered by

Marshall, J.:

The action is to recover on two promissory notes given to the Aultman & Taylor Machinery Company and by that company indorsed to the plaintiff. The defendant demurred to the petition on the ground that the court had no jurisdiction of the person of the defendant or of the subject of the action and that the plaintiff had no legal capacity to sue. The defendant also moved to dismiss the action for the same reasons. The demurrer was overruled, and the motion was denied. The jury returned a verdict for the plaintiff for $2,126.85 as directed by the court, and judgment was entered for that amount. The defendant appeals.

' The petition disclosed that the William Walker Implement Company was owned and managed by William Walker, Jr. The evidence established that fact, and that the plaintiff was neither a partnership nor a corporation.

The only matter urged in the brief of the defendant is that the plaintiff had no legal capacity to sue because it was not an individual, not a partnership, nor a corporation. The petition and evi[406]*406dence disclosed that the plaintiff was William Walker, Jr. The name under which he sued, William Walker Implement Company, was the name under which he did business.

Section 60-401 of the Revised Statutes requires every action to be brought in the name of the real party in interest. William Walker, Jr., was the actual plaintiff, and he was the real party in interest. The defendant was not in any way misled or prejudiced by the manner in which the petition was entitled. Neither issues nor evidence were changed from what they would have been had the action been entitled William Walker, Jr., plaintiff.

By section 60-3317 of the Revised Statutes this court is directed to “disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining where it appears upon the whole record that substantial justice has been done.” That statute controls in the present case.

The judgment is affirmed.

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Bluebook (online)

247 P. 637, 121 Kan. 405, 1926 Kan. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-walker-implement-co-v-ellis-kan-1926.

Opinion

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