Citizens' Bank v. McClelland , 53 Kan. 699 ( 1894 )

The opinion of the court was delivered by

Allen, J.:

This case grows out of that of Geo. F. Berry & Co. v. Citizens’ National Bank of Kingman. (National Bank v. Berry, just decided.) On the judgment in that action an execution was issued and levied on moneys of the Citizens’ Bank of Kingman, under the claim on the part of plaintiff in that case that the Citizens’ Bank of Kingman was merely a successor in interest of the Citizens’ National Bank, and that the property of the plaintiff in this case was liable to seizure under an execution issued against the Citizens’ National Bank. The judgment in that case has just been reversed by this court. The action of Berry & Co. against the Citizens’ National Bank was instituted after the organization of the Citizens’ Bank. The Citizens’ Bank was never made a party to that action, and, of course, was not bound by any judgment rendered therein. Even if the claim is correct that the Citizens’ Bank took all the property and assumed all the liabilities of the Citizens’ National Bank, Berry & Co. would have no right to levy an execution on the property of the Citizens’ Bank until they had obtained a judgment against it. The judgment is reversed.

All the Justices concurring.