American Surety Co. v. Maryland Casualty Co.

Citations

• 97 Kan. 275
• 155 P. 59
• 1916 Kan. LEXIS 281

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Sued in Wrong Name — Answer—Trial—Judgment— Misnomer Waived. Where process is served against a defendant corporation in the wrong name and it answers in that name, a judgment taken against it is as valid as if rendered against it in the right name. The failure to plead the misnomer waives it.</p> <p>2. Same — Misnomer—No Plea in Abatement — Misnomer Waived. The . New Century Zinc and Lead Mining Company, a corporation organized under the laws of Delaware, was sued by an employee to recover damages for personal injuries. The petition and summons described the defendant as “The New Century Mining Company” and the petition alleged that it was a Kansas corporation. The summons was served upon the president of the company; an answer was filed in the name of “The New Century Mining Company” as defendant, and the cause was tried and judgment rendered against defendant. On appeal to the supreme court the judgment was affirmed. In no manner was the misnomer brought to the attention of the district or the supreme court. Held, that failure to file a plea in abatement waived the misnomer, and that after the judgment it is too late for the defendant, or for a casualty insurance company in privity with it, to question the fact that the company was sued, or the validity of the judgment.</p> <p>3. Indemnity Bond — Against Injuries to Employees — Judgment for Employee — Liability on Indemnity Bond. A casualty company issued a policy indemnifying a corporation from liability for injuries to its employees and agreeing to defend all suits brought against it. It defended such an action where the corporation was sued by the wrong name and judgment was taken against the defendant. Held, after the affirmance of the judgment on appeal it is too late for the casualty company to question the validity of the judgment, or its own liability to a surety company which signed the supersedeas bond and took an assignment of the policy as security for