Wilkinson v. Fleming

Breese, J. This was an action of replevin, commenced by the appellants, at the October term, 1861, of the St. Clair Circuit Court, to recover the possession of the following articles of personal property, viz.: five benches, one coal stove, one copying press, one safe, one clock, one desk, one table, one stool, one pair Fairbank’s scales, one ladder, one truck, and one crowbar, unlawfully detained by said Fleming. To which action the defendant put in several pleas. The first plea alleges that “ the Terre Haute, Alton and St. Louis Railroad Company is a corporation, organized under the laws of the State of Illinois, etc.; that, for the purpose of securing sundry debts, said corporation executed to appellants, as trustees, a deed of trust, and that the same having become forfeited, the plaintiffs, as trustees, under authority of said deed of trust, took possession of the franchise and effects of said corporation, among other things, the railroad track, cars, depots, etc., the goods and chattels in controversy, and as such trustees have held possession thereof ever since, and exercised said franchise, and operated said road. That while the trustees were so running the road, collecting and receiving the tolls for the conveyance of passengers and freight in the name of said corporation, one Aaron W. Shook, while traveling as a passenger on said road, received a bodily injury, and instituted suit against said corporation, and recovered damages ; ” with the averments contained in the third plea. The second plea was, property in defendant and not in,the plaintiffs—upon which, issue was joined. The third plea was as follows: “ And for a further plea in this behalf the said defendant says, aotio non, because he says that one Aaron W. Shook, on the 14th day of May, 1861, recovered judgment in the Monroe Circuit Court in said State, against the Terre Haute, Alton and St. Louis Railroad Company, for the sum of three thousand dollars damages, and costs, as appears of record in said court; and afterwards, to wit, on the 6th day of July, 1861, an execution of that date was issued on said judgment by the clerk of the Circuit Court of the said county of Monroe, in due form of law, directed to the sheriff of the county of St. Clair, in the name of the People of the State of Illinois, commanding such sheriff of the county of St. Clair, Illinois, that of the goods, chattels, lands, tenements, and real estate of said corporation, he make the said sum of three thousand dollars, with interest at six per cent, from the 14th day of May, 1861, and also the further sum of twenty-four dollars and sixty-five cents, costs of suit, and to have that money at the office of the said clerk of the Circuit Court of Monroe county, at the end of ninety days from the date of said writ; and afterwards, to wit, on the 10th day of July, 1861, at 11 o’clock a. m., the said writ of execution was delivered to said defendant, who then and ever since, and now was and is the duly commissioned, qualified and acting sheriff in and for the county of St. Clair aforesaid, to be executed, by virtue of which said writ, and in the lifetime thereof, to wit, on the 27th day of July, 1861, this defendant, as sheriff as ^aforesaid, by his deputy, seized and took and levied upon said goods and chattels in said declaration mentioned. And the said defendant in fact says that the said plaintiffs, as trustees as aforesaid, took possession of said railroad and its effects, and exercised its franchise in its corporate name, on, etc., at, etc., and before the cause of action for which said judgment was rendered, accrued ; and were in possession of said railroad, and its effects and goods and chattels in said declaration mentioned, and exercising its franchises in its corporate name as aforesaid, when the said cause of action accrued, and so continued until at and after the said levy of said execution as aforesaid; wherefore the said defendant seized and took and levied upon said goods and chattels in said declaration mentioned, as he lawfully might for the causes aforesaid, which are the taking and detention in said declaration mentioned,” etc. Replications were filed to the first and second pleas, which were demurred to; demurrer sustained. And the plaintiffs, at the March term, 1862, of said court, filed the following amended replications, to wit: “And the said plaintiffs, as to the defendant’s first and third pleas severally pleaded, say, predudi non, because they say that they did not exercise the franchises appertaining to the said Terre Haute, Alton and St. Louis Railroad, in the name of said corporation, nor did they collect and receive bills, tolls, etc., in the name of said corporation, nor was process issued in the suits mentioned in said pleas, as the agents of the plaintiffs exercising said franchise in the name of said corporation, as alleged in said plea, nor was said suit defended by the attorney of plaintiffs, but they allege that said corporation was defended by attorney of said corporation, and this they pray may be inquired of by the country. “And for a further replication in this behalf, the said plaintiffs say, that the said Shook did not recover a judgment in manner and form as he has alleged in the said first and second pleas; and this they pray may be inquired of by the country. “And for a further replication, plaintiffs say, that there was no such execution issued and levy made, as alleged in said pleas of defendant; and of this they put themselves upon the country. “And for a further replication, plaintiffs say, that the property levied upon, as in said pleas alleged, was not the property of the defendant in said execution, but was the property of the said plaintiffs, and was not liable to be levied upon by said execution; and this they pray may be inquired of by the country.” To which said several replications the defendant filed the following rejoinder, to wit: “And the said defendant, as to the several amended replications of said plaintiffs, wherein they put themselves upon the country, doth the like.” The cause was tried at the October term, 1861, of said court, by the court, a jury having been waived. The plaintiffs introduced one William D. Griswold, who testified that the property in question belonged to plaintiffs (appellant's); that on December 12,1859, the board of directors of the Terre Haute, Alton and St. Louis Railroad Company surrendered the said railroad to plaintiffs, as trustees of the bondholders under the second mortgage deed. Witness was then president of the board of directors, and had been since June of that year, when the mortgage had become forfeited for the non-payment of interest. Possession of the road and property belonging thereto was taken by said trustees on such surrender. That in the winter of 1859 and 1860 the president and said company sold the personal property to said trustees for $39,000, or $40,000, which was paid in cash. After said surrender, witness, as superintendent, operated said road for said trustees, under power of attorney from them. W itness managed said railroad property in the name of said trustees and in no other name, since December 12, 1859. That sometimes, for short, the word trustees was used, but in all contracts the individual names of the plaintiffs were used. That the benches in dispute, were made after the trustees took possession of the road and property. That the property in question, excepting said benches, is a portion of the personal property acquired by said trustees as aforesaid. That when witness ceased to be president of said .company, in June, 1850, Mr. Butler, of New York, became his successor. Witness employed counsel for Mr. -Butler, at' his. feque'st, to defend the suit of said Shook. Witness, as- agent for the trustees, employed all the agents on the' line, and there never has been any agent of •the"' corporation in this State since the surrender, except witness,1 who acted as president of -said company, until June, 1860. The corporation, for the purpose of holding the franchise, was kept alive by having a president arid board of .directors elsewhere.. The trustees, after they took possession of the road, used the same passenger tickets, and similar notices were published as before, while witness was superintendent, and the name of the corporation on the cars was continued. H. W. Miller testified, on behalf of plaintiffs, that in December, 1869, the employees, of whom he was one, of the Terre Haute, Alton and St. Louis Railroad, received notice of the surrender of the road, and that from that time on, the business was managed in the name of the trustees. Books and blank papers were made out in their name, and tolls and freight collected. The defendant then introduced a certified copy of a judgment, in favor of one Aaron W. Shook, against the Terre Haute, Alton and St. Louis Railroad Company, with the declaration and papers appertaining to said suit; also an execution issued thereon, and the levy made by the defendant, the then sheriff, upon the property in dispute. The court found the issue for the defendant on the second and third pleas; and thereupon the plaintiffs moved for a new trial, because the said finding was contrary to evidence and contrary to law; which motion the court overruled, and the plaintiffs thereupon excepted at the time to the decision of’the court in overruling the said motion. Thereupon the plaintiffs moved for a judgment in their favor, non obstante verdioto, because there was a departure in pleading, and because the issues were immaterial; which said motion was overruled, and judgment for costs given in favor of the defendant, and a writ of retorno habendo. The plaintiffs excepted at the time to the decision of the court in overruling the motion. The appellants now assign for error in the court below: The overruling of the motion for a new trial; the overruling of the motion for judgment for plaintiffs “ non obstante verdioto ; ” and the rendering of a judgment in favor of the defendant. It is contended by the appellants, that inasmuch as they acquired the property in controversy by purchase, it ceased to be liable to be taken on an execution against the corporation. That to make them liable, they should have been made parties to the suit, and have had an opportunity to be heard; that they had no interest in defending a suit against the corporation. And they ask, if they are any more liable on a judgment obtained against the corporation after the surrender of the road, than before. In Palmer v. Forbes et al., 23 Ill. 318, this court said, that the purchasers under the trust deeds were endowed with sufficient powers to run the road, and for this purpose, might use their own names, or adopt any other convenient business name, and were under no necessity of adopting the name of the company, to whose right in the property they have succeeded. On this principle, this case turns. The facts show, that the suit, originally brought by Shook, against the railroad company, was defended by the trustees, in the corporate name of the company, and the name was continued on the cars, and no change made in their public notices. It is too late now to say they had other names in which they did their business. They did their business out of which the judgment originated, in the name of the company. If A. B. is sued by the name of O. D. & Go., and pleads not against it, he will be bound by the judgment, that is certain. Suppose the trustees had executed a note in the name of the company, using that name for convenience, or display, or for any other like purpose, would not their property be liable to pay it after judgment and execution? We apprehend there can be but one answer to the question. Whatever their private arrangements might have been, with their employees, and with persons they contracted with, they held themselves out to the world, as doing business, and running the road in the name of the Terre Haute, Alton and St. Louis Railroad Company, and for liabilities so incurred, their property must be responsible. If it was not so, the public would be very insecure. Though a suit might be instituted against the trustees individually, by their own names, no objection is perceived why one cannot be maintained against them by the name they use. It is not uncommon for corporations, and associations, and even individuals, to transact business under different names. Names are nothing. No other point is pressed on the consideration of the court. The judgment must be affirmed. Judgment affirmed.