Portland Gold Mining Co. v. Stratton's Independence, Ltd.

• Decision Date: 20 February 1912
• Docket Number: Law.,5,267
• Citation: 196 F. 714
• Parties: PORTLAND GOLD MIN. CO. v. STRATTON'S INDEPENDENCE, Limited.
• Court: U.S. District Court — District of Colorado

196 F. 714

PORTLAND GOLD MIN. CO. v. STRATTON'S INDEPENDENCE, Limited.

No. 5,267, Law.

United States District Court, D. Colorado.

February 20, 1912

Thomas Bryant, Nye & Malburn, of Denver, Colo., and Chinn &amp Strickler, of Colorado Springs, Colo., for plaintiff.

Wm. V Hodges, of Denver, Colo., for defendant.

LEWIS District Judge.

On December 21st, 1908, the plaintiff, a Wyoming corporation, filed in the Circuit Court its complaint against Stratton's Independence, Limited, a corporation organized about the year 1898 under the laws of the Kingdom of Great Britain and Ireland. The complaint contains twenty-five counts or causes of action, and the aggregate amount sought to be recovered is $366,600. It is alleged in the several causes of action that the plaintiff is the successor (having been organized in 1905) in title to certain mining properties situate in the Cripple Creek Mining District, which were granted to it by The Portland Gold Mining Company, a corporation organized under the laws of the State of Iowa, and that it is the assignee of said Iowa company of the claims on which each cause of action is based. Each count states an action in trover. Each alleges that precious ores were broken down and taken from its mining claims while the property belonged to the Iowa corporation, that said ores came into the possession of said defendant and were of the aggregate value above noted and were thereafter converted by said defendant to its use. After issues were joined, and on November 19th, 1910, a motion was entered that the causes of action abate on account of the dissolution of said defendant, which had taken place on July 4th, 1910. Before that motion was heard stipulation between counsel as to the facts in that respect was filed in the cause. From that stipulation it appeared that said defendant 'company did, on the 4th day of July, A.D. 1910, become wholly dissolved in that jurisdiction' (the Kingdom of Great Britain and Ireland). It was thereupon ordered that said causes of action abate as against said defendant.

From the said stipulation it further appeared that at the time of the dissolution of said defendant it was indebted to various creditors to the amount of about $375,000. In 1908 a new company was organized under the laws of the Kingdom of Great Britain and Ireland bearing the same name as said defendant. The number of shares in the new company was the same as in the old, but each share was of less par value. The stockholders in the old company were given the privilege of taking the same number of shares which they held in the old company, in the new company. They did not all avail themselves of this privilege. Of the million shares in the new company 123,226 were purchased by strangers to the old company, and they paid in for these shares $375,000. The $375,000 so paid into the treasury of the new company by those who were not shareholders in the old company was turned over to the old company for the payment of its debts, and the new company, in consideration therefor, and in further consideration that it would protect the old company against its debts, liabilities and obligations and pay, satisfy and discharge the same, and adopt, perform and fulfill all contracts and engagements then binding it, received from said old company all of its properties, including lands, buildings, mines, concessions, goods, chattels, moneys, credits, debts, bills, notes and things in action.

On these facts the same order which abated the action against the old company (1898) contained an order that the new company (1908) be substituted as a party defendant in this action, and that scire facias be served on said new company.

The new company now moves for a vacation of the order substituting it as a defendant, and this is the matter for present consideration.

Did the causes of action survive the dissolution of the old company?

To sustain the affirmative of this proposition plaintiff's counsel cite section 955, Rev. Stat. U.S. (U.S. Comp. St. 1901, p. 697). This section does not 'prescribe the causes which survive the death of either party. ' Patton v. Brady, 184 U.S. 612, 22 Sup.Ct. 494, 46 L.Ed. 713.

But the causes of action survived the dissolution of the old company at common law, Patton v. Brady, supra, In re Connaway, 178 U.S. 426, 20 Sup.Ct. 951, 44 L.Ed. 1134; and also, by virtue of the local statute, Revised Statutes of Colorado 1908, section 7258:

'All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real property shall survive to and against executors, administrators and conservators.'

See Kelley v. U.P. Ry. Co., 16 Colo. 455, 27 P. 1058.

The causes of action having survived the dissolution of the old company, the question whether they can be revived against the new company remains for consideration. The right to revive a cause of action depends upon the laws of the State in which the action is brought. B. & O.R.R. Co. v. Joy, 173 U.S. 226, 19 Sup.Ct. 387, 43 L.Ed. 677. The only express provision for the revival of actions is section 270 of Mills' Code, which is as follows:

'The action for the recovery of real property shall not abate by the death of either or all the parties thereto, but may be revived in the name of the heirs, representatives or successors in interest in the manner other civil actions are revived by this act.'

The other provisions of the code to which reference is doubtless made in the above section, is section 15 of said code, which is as follows:

'An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or other

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