Memphis & Charlston Railroad v. Glover , 78 Miss. 467 ( 1900 )

Whitfield, C. J.,

delivered the opinion of the court.

The receivers were liable as such. See Little v. Dusenberry, 46 N. J. Law, 641; Klein v. Jewett, 26 N. J. Eq., 476; Beach Rec., sec. 718. Section 669 of the code of 1892 is as follows: “Actions by or against public officers in their official character, or by or against trustees or commissioners in reference to the trust committed to them, or by or against persons who occupy a similar position to that of public officers, trustees, or commissioners, shall not abate on account of the change of the person occupying such position, but may be revived and proceeded with in the name of the successor of such person. ’ ’ It is insisted that the suit against the receivers could not be revived against the appellant, as the successor of the receivers, and that a receiver is not a person similar to a public officer, trustee, or commissioner, within the meaning of section 669. This suit was originally instituted against the receivers. Pending the suit the old Memphis & Charleston Railroad Company was sold by order of the United States circuit court for the western district of Tennessee. At that sale, which was of the whole road as an entirety, the Southern Railroad Company, a corporation chartered under the laws of the state of Virginia, purchased all the property of every kind and description in the states of Tennessee and Alabama, and all elsewhere, except the railroad, real estate, and franchises of the old Memphis & Charleston Railroad Company within the State of Mississippi, which last was purchased by a new corporation by the same name, to wit, Memphis & Charleston Railroad Company, to be chartered by the State of Mississippi, and which was subsequently chartered by the State of Mississippi. It is entirely immaterial that the equipments, chattels, choses in action of the old Memphis & Charleston Railroad Company were all conveyed to the Southern Railroad Company, since what was involved here is the liability to penalty and damages for failure to construct and maintain a suitable cattle guard on that part of tiie road lying in the State of Mississippi. It was failure to properly deal in this respect with the roadbed and real estate within the State of Mississippi that gave rise to this action. The terms of the decree .of the twenty-sixth of February, 1898, expressly provided that ‘‘ such purchasers, or their successors or assigns [in' the plural, and, therefore, embracing appellant], should pay any unpaid indebtedness, obligation, or liability contracted or incurred by the receivers before delivery of the property sold.” And the deed made to the appellant in pursuance of this debree expressly recites as a condition compliance with which was essential to the investiture of title in the appellant to the property claimed by it in the State of Mississippi, that such liabilities should be paid by the purchaser. It is thus perfectly clear that the appellant, which accepted this deed, could not take its benefits without fulfilling the obligations it imposed; and one of those obligations was to pay any liabilities incurred by said receivers before delivery of the property sold. It is well settled that under the decree and deed containing such stipulation the appellant is liable. Beach, Rec., sec. 735.

But it is insisted that if the appellant be liable this suit cannot be revived against it by scire facias, and that § 669 of the code of 1892 does not authorize, such revival, it being insisted that a receiver is not a person, within the'meaning of the section, similar to a public officer, trustee or commissioner. We do not think it material to consider, in the attitude of the pleadings in this case, whether technically or literally, the revival was proper under said § 669, for the reason that after the appellant’s motion to quash thq scire facias was overruled it did not stand on the proposition that no such revival could be had, allow judgmet to be taken in the court below, and appeal to this court, presenting that ground, but pleaded generally to its merits, both by its answer and by the plea of the general issue subsequently filed, and thus entered its appearance. This course was a complete waiver of any right to insist upon an improper revival by scire facias. Says Judge Thompson (1 Thomp. Corp., sec. 398): “By so appearing, it admitted its successorship to the precedent corporation, and its liability in case the precedent corporation should be adjudged liable.” So, here, by appearing to the merits appellant admitted its successorship, and its liability at all events in case the receivers had been liable. It is abun'dantly settled (see 1 Thomp. Corp., secs. 400-404, inclusive) that consolidation does not destroy any of the precedent corporations, in such a sense as works an abatement of actions pending against them, and requires the plaintiff in such actions to begin anew against the consolidated company. It is variously held that in such cases new process is necessary and that new process is not necessary, and that the case may be proceeded with by a mere amendment bringing in the consolidated company (see 1 Thomp. Corp., sec. 403), or that a consolidated company may be substituted as defendant by an order of the court to that effect, without any new process. Whatever, may be the true construction of § 669 as to whether the appellant is the successor, so as to authorize a revival by scire facias, we think, for the reason above given, the appellant appeared to the merits, and was thus for all purposes in court.

If it were necessary to the decision, it might be well worth consideration, whether, practically and substantially, for all the purposes of justice, the receivers were not similar to trustees or commissioners, and whether the appellant is not the successor in title and interest, under Bond v. State, 68 Miss., 648, 9 South., 353, and Hardee v. Gills, 50 Miss., 802, especially in view of the provisions of the decree and deed already mentioned, so as to authorize the revival. But, in the view we have taken, it is unnecessary to decide this.

The briefs on both sides in this case display great wealth of learning and most diligent research, but we do not deem it necessary to say anything further than that we find no error, and the judgment is Affirmed.