Williamson v. Kansas & Texas Coal Co. , 6 Kan. App. 443 ( 1897 )

Milton, J.

It is contended by counsel for defendant that the proceedings in error should be dismissed for the reason that no judgment was entered in the case. We think that proceedings in error may be taken from the ruling of the trial court sustaining a demurrer to the petition on the ground stated, notwithstanding the fact that the record fails to' show that a final judgment for costs was entered in the case.

An examination of the petition convinces us that it fails to show any right of recovery against the defendant, and any lack of right on the part of defendant to institute and maintain the attachment proceedings in the State of Arkansas. It is distinctly alleged that “the defendant is a corporation organized and existing under and by virtue of the laws of the State of Missouri.” While it also states that the defendant was doing business at Pittsburg, Kan., nothing is stated from which a court can find it was a resident of the State of Kansas at any time, or at the times named in the petition. Plaintiff’s counsel contends as follows :

‘ ‘ When a foreign corporation voluntarily comes within the jurisdiction of, and carries on business in, a state other than that which chartered it, such corporation will be held liable to a resident within such state for any -tort committed against such citizen of the state where it does business by comity, and will be subject to the same laws and regulations as any other citizen of the state.”

This statement may be correct, but it is not applicable to the facts alleged in the petition in this case. It is difficult to see how it can be a tort for a resident of Missouri to sue a citizen of Kansas in the State of Arkansas, for a debt admitted to be owing and due, and in such action to take property which is exempt in Kansas but not exempt in Arkansas, by attachment,, to satisfy the judgment obtained in such action. There being no tort, no liability would ensue. Besides, it is evident that, if the proposition now pressed by plaintiff is correct, it ought to have been presented to the court in Arkansas as a defense in that action ; and plaintiff ought to be bound by the adjudication made by that court if he has negligently failed to present to it the defense which, as we must infer, from Ms own argument lie now claims would have been good and complete. The petition shows that the plaintiff gave the court no intimation that he claimed the property seized was exempt. That was the time and place for such action on his part. He choose to omit it. See, generally, 1 Van Fleet’s Former Adjudication, § 159; 1 High on Injunctions (2d ed.), § 114; Green v. Van Buskirk, 5 Wall. 307; Green v. Van Buskirk, 7 id. 139; B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180.

Cases cited by counsel for plaintiff all relate to action between residents and citizens of the same state. But in this case we find from the petition that defendant was a citizen of Missouri at the time it sued plaintiff. See Cook on Stock and Stockholders (2d ed.), § 757 ; 6 Thompson’s Commentaries on the Law of Corporations, §§ 7875, 7881, and 7882, as to residence of corporations.

We -approve and affirm the order of the trial court sustaining the demurrer to plaintiff’s petition.