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by writ of error coram nobis where the execution was erroneous and illegal: Phillips v. Russell, Hemp. 62. In the case cited, the character of the error or illegality is not stated in the opinion of the court or otherwise, and no other case has come within our observation in which this remedy was pursued for the purpose of quashing an. execution.

VII. Negligence or Laches as a Bar to the Writ. Proceedings by writ of error coram nobis are not exempt from the general rule that relief may be denied to a party because of his own negligence or laches. If he knew of the alleged error of fact at the time the judgment was entered and did not avail himself of it, this may preclude him from any subsequent proceeding for his relief. If he seeks relief from a judgment on the ground that it was taken against him by default, when he had a meritorious defense to the action, he may be met, as in other cases of applications to vacate judgments, by the claim that it was his own negligence which caused the judga ment to be entered against him, and that it was so inexcusable that he is not entitled to relief: Dobbs v. State, 65 Kan, 321, 65 Pac. 658; Marble v. Vanhorn, 53 Mo. App. 561; Jackson v. Milson, 6 Lea, 514; Memphis etc. Inst. v. Hargan, 9 Heisk. 496; Carney y. McDonald, 10 Heisk. 232.

VIII. Obsoletism of the Writ. The writ of error coram nobis is often stated to be obsolete: McKindley v. Buck, 43 Ill. 488; Life Assn. v. Fassett, 102 Ill. 315; Pickett v. Legerwood, 7 Pet. 144. Doubtless in many of the states it is no longer employed, but that it is entirely obsolete is sufficiently disproved by the citations already made and by Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681; Hicks v. Haywood, 4 Heisk. 598; Swafford v. Howard, 8 Baxt. 526; Milan County v. Robertson, 47 Tex. 222. Probably it is abolished by the provisions of the codes of those states which, departing from the rules of the common law, have enacted what was intended to be a complete code of procedure, and have provided for remedies other than by this writ to accomplish the purposes otherwise sought by it. Where, however, the common law has been adopted and has not been modified by any statute expressly abolishing this writ, or impliedly displacing it by providing other remedies for the same purpose, the writ must be regarded as. still available, both in civil and criminal prosecutions: Adler V. State, 35 Ark. 517, 37 Am. Rep. 48; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; State v. Calhoun, 50 Kan. 523, 34 Am. St. Rep. 141, 32 Pac. 38.



(66 Kan. 251, 71 Pac. 584.) CORPORATIONS_Summons-Service of upon-Return, When Shows Inability to Find the Chief Officer.-A return on a summong that it had been served on the assistant secretary, "the president and chief officer of said company not being found in my county," sufficiently shows the inability to find the chief officer. (p. 374.)

CORPORATIONS.-The Service of Summons on the Assistant Secretary of a Corporation is sufficient, where he is an officer provided for in the by-laws, with independent duties, in which are included the management of the office of the corporation at its only place of business within the state. (p. 374.)

CORPORATIONS-Summons-Service upon Officer Who has Resigned.—The service of a summons on an officer of a corporation who has resigned will be sustained, if the by-laws of the corporation provide that officers shall hold their offices for the time specified or until their successors are elected and qualify, and no successor has been elected. (P. 376.)

Stebbens & Evans and Frank Nighswonger, for the plaintiff

in error.

Thomas B. Wall, James V. Daugherty, and James II. Stewart, for the defendants in error.

252 MASON, J. On July 27, 1900, the Colorado Debenture Corporation filed a petition in the district court of Sedgwick county against the Lombard Investment Company, a Kansas corporation. A summons was issued and returned, the return showing service by the delivery of a copy to J. H. Stewart, the assistant secretary of the defendant company. The defendant appeared specially and moved to set aside the service. The motion was heard on an agreed statement of facts and certain written evidence.

The agreed statement showed that the defendant was a Kaneas corporation; that for several years prior to August, 1890, it was engaged extensively in business in Kansas, with its chief officer in Kansas City, Missouri; that its by-laws provided for an officer called "secretary," and also for an officer called "assistant secretary"; that among the duties of the latter were keeping a record of the earnings of the company, making the annual statement to the Secretary 253 of State required by statute, and having charge of the Wichita office; that the bylaws also provided that the officers should hold their respective

offices for the period of one year from the date of their election, or until their successors should be elected and qualified; that on September 7, 1893, J. H. Stewart was elected assistant secretary; that at a directors' meeting on December 6, 1897, all the officers, except the president and four directors, resigned, and orders were made accepting their resignations to take effect at the close of the meeting; that the president was then, and has ever since been, a resident of New York; that the person who had held the office of secretary was then, and has ever since been, a resident of Chicago; that no meeting of the directors has been held since. The evidence showed that the charter named as the places where the business of the company was to be transacted Wichita, Boston, Creston, Iowa, and Lincoln, Nebraska. The district court sustained the motion. The plaintiff now seeks the reversal of this order.

The first objection made to the service is that the sheriff's return did not sufficiently show that the chief officer of the defendant corporation could not be found in the county. The district court, however, held that this contention was not sound, placing the order setting aside the service upon other grounds. We agree in this with the trial court. The statute authorizes a service on an inferior officer, “if its chief officer is not found in the county": Civ. Code, scc. 68; Gen. Stats. 1901, sec. 4498. The language of the return in this respect was: "The president

... and chief officers of said company not being found in my county." This is a sufficient recital to show inability to find the chief officer: Cincinnati Hotel Co. v, Central Trust 254 etc. Co., 11 Ohio Dec. (reprint) 255; Crowley, Cook & Co. v. Sumner, 97 Ill. App. 301; Western Union Tel. Co. v. Lindley, 62 Ind. 371; Chicago etc. Electric Co. v. Congdon etc. Mfg. Co., 111 Ill. 309.

The next contention of defendant is that service cannot be made on an "assistant secretary" in any event. We hold that, under the circumstances of this case, service on the assistant secretary of the corporation is sufficient. In the syllabus and opinion in Leavenworth etc. Ry. Co. v. Stone, 60 Kan, 57, 55 Pac. 346, it was said that such service is good. The statute does not in terms authorize a service on a vice-president, nor doesit expressly provide for such an office, yet a service on a vicepresident has been held sufficient—in some cases even without a showing that the president could not be found: Ball y. Warrington, 87 Fed. 695; Pond v. National Mortgage etc. Co., 6 Kan. App. 718, 50 Pac. 973, and cases cited. In the case of

Pond v. National Mortgage etc. Co., a petition to certify to this
court was denied.

The assistant secretary in the case at bar was not a mere
deputy. He was an officer provided for by the by-laws of the
corporation, with independent duties, which included the man-
agement of the office of the company at Wichita, its only place
of business within this state. He was, in effect, the secretary
of the corporation for Kansas, the state under whose laws it was

A more difficult question arises upon the third objection to the service—that it was void for the reason that J. H. Stewart, the assistant secretary, had resigned from that office, and his resignation had been accepted prior to the attempted service. There was an attempt to prove that the resignation was for the very purpose of avoiding service. We cannot say, 255 hov. erer, that the evidence established this. It has been held that, where the statute provides that the officers of a municipal corporation shall hold their offices until their successors are elected and qualified, the municipality cannot avoid service of process by the resignation of its officers, where no successors are chosen, and that under such circumstances service may be had on the officer who has resigned, notwithstanding the formal acceptance of his resignation: Badger v. United States ex rel. Bolles, 93 C. S. 599. Plaintiff in error seeks to apply the same principle to this private corporation on the ground that the by-laws of its own adoption, providing that its officers shall hold until their successors are elected and qualified, have, as to persons dealing with it, the force of law.

The principle was so applied in Timolet v. S. J. Held Co., 40 N. Y. Supp. 692, 17 Misc. Rep. 556. The statute there involved authorized service on a director. S. J. Held had been a director in the defendant corporation, but he resigned before service. The court upheld the service, saying: "There is no question here of the personal liability of the resigning director to the creditors of the company, but only a question between such creditors and the company, under its own by-laws, and for its own neglect to terminate its official relations with the director, by electing his successor. When, by its by-law, it declares that he shall serve until his successor is chosen, it constitutes him its officer until that event, with the same effect, so far as the corporation is concerned, as if he were serving in the term for which he was elected, and had not resigned. It was in the power of the company to terminate his agency at any time by

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electing a successor, and, if it chose rather to continue such agency, he must be treated, in actions against the company, as its duly constituted officer. 256 A by-law of a corporation has all the force of a statute, and is as binding upon the company and its members as any public law of the state. . . . . He was a director, by virtue of the law of the company, notwithstanding his resignation, as his successor had not been chosen, and service upon a director was service upon the corporation.”

We are satisfied with this reasoning, and hold that the service on J. H. Stewart was sufficient.

The judgment of the district court is reversed, and the cause remanded with directions to overrule the motion to set aside the service of summons.

All the justices concurring.

Serrice upon an officer of a corporation after he has tendered his resignation does not bind the corporation, as a rule, although his resignation has not been accepted. But if the by-laws of the company provide that directors shall serve until their successors are appointed, service upon a director who has tendered his resignation, but whose successor has not been appointed, is binding on the corporation: See the note to Zeltner v. Zeltner Brewing Co., 95 Am. St. Rep. 578-581.



(66 Kan. 378, 71 Pac. 820.) RAILWAY CORPORATIONS-Passengers On Whose Representations may Rely.—An intending passenger who inquires at a railway station of a ticket agent whether a train stops at another station, and also of the brakeman apparently in charge of the train, has the right to rely upon the representations and replies made by these employés, and hence to purchase a ticket for, and to go upon, such train for the purpose of being transported to such station. (p. 378.)

RAILWAY CORPORATIONS-Refusal to Stop Trains at a Station.—One who, after purchasing a ticket for a designated station, is ejected from the train because, by the rules of the corporation, it does not stop at such station, may recover damages for such ejection. (p. 378.)

RAILWAY CORPORATIONS-Exemplary Damages.-If a passenger who has purchased a ticket for a designated station, after inquiring of the ticket agent whether the train stops at such station, is compelled to leave the train, on the ground that it does not carry passengers, he may recover exemplary damages, if, in the opinion of the jury, the defendant's employés were guilty either of malice, wantonness, willful oppression or violence, or of gross nego ligence. (pp. 378, 379.)

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