99 N.E.2d 515 (Ohio Comm. 1948), 22185, Perkins v. Benguet Consol. Min. Co.

Docket Nº:22185, 22191.
Citation:99 N.E.2d 515
Opinion Judge:BRITTON, Justice.
Party Name:PERKINS v. BENGUET CONSOL. MINING Co. et al. (Two Cases).
Attorney:Cors, Scherer & Hair, Cincinnati, by Gordon H. Scherer, Charles F. Hartsock, Cincinnati, for plaintiff. Judge John W. Haussermann, New Richmond, pro se, Lucien H. Mercier, Washington, D. C., Ely, White & Davidson, Batavia, by Judge C. G. White and Nochols, Speidel & Nichols, all of Batavia, repre...
Case Date:November 16, 1948
Court:Court of Common Pleas of Ohio
 
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Page 515

99 N.E.2d 515 (Ohio Comm. 1948)

PERKINS

v.

BENGUET CONSOL. MINING Co. et al. (Two Cases).

Nos. 22185, 22191.

Court of Common Pleas of Ohio, Clermont.

November 16, 1948

Cors, Scherer & Hair, Cincinnati, by Gordon H. Scherer, Charles F. Hartsock, Cincinnati, for plaintiff.

Judge John W. Haussermann, New Richmond, pro se, Lucien H. Mercier, Washington, D. C., Ely, White & Davidson, Batavia, by Judge C. G. White and Nochols, Speidel & Nichols, all of Batavia, represented by Harold D. Nichols, Batavia, for defendants.

BRITTON, Justice.

These causes came into this court on motion following the filing of two Petitions in two cases by the same Plaintiff, and against the same Defendant, or Defendants.

Page 516

Identical motions in the two cases have been filed, and the motions read as follows: '* * * Comes now the Defendant, Benguet Consolidated Mining Company, and appearing specially for the purpose of this motion only, and disclaiming any intention of entering other than a special appearance for the purposes of this motion, hereby moves the Court for an order quashing and setting aside the attempted service of alias summons heretofore issued against this Defendant, and for an order quashing and setting aside the return of said attempted service.'

In these cases, certain relief is asked by the Plaintiff as will be noted from the pleadings so filed against the Defendant, Benguet Consolidated Mining Company.

And now certain stipulations have been filed in each of these causes and one reading of the same seems to be identical with the other, and they, therefore, appear as follows:

'* * * It is stipulated and agreed by and between counsel for the plaintiff, Idonah Slade Perkins, and counsel for the defendant, Benguet Consolidated Mining Company, as follows:

'1. That this stipulation shall in no wise constitute an Entry of Appearance in this cause by the defendant, Benguet Consolidated Mining Company, and that this stipulation is entered into only and specially for the purposes of the Motion of the defendant to Quash Service of Summons in this cause.

'2. That the testimony, exhibits, briefs and arguments of counsel, introduced in the Court of Common Pleas of Hamilton County, Ohio, in Case No. A-103-968, being styled, 'Idonah Slade Perkins, plaintiff, v. First National Bank of Cincinnati, et al., defendants, [79 N.E.2d 159]' by both plaintiff and this defendant, in support of and opposing the Motion to Quash Service of Summons filed by this defendant in said cause, and the record of said cause to the date of this stipulation, are hereby introduced in this cause so as to constitute, together with such additional evidence, exhibits, briefs and arguments, as either party may offer, the entire record, evidence, exhibits, briefs and arguments, in support of and in opposition to the Motion to Quash Service of Summons filed by the defendant, Benguet Consolidated Mining Company, in this cause.

'Cors, Scherer & Hair

by Gordon H. Scherer

Attorneys for Plaintiff

Charles G. White

Attorney for Defendant,

Benguet Consolidated Mining Company' Now, the Benguet Consolidated Mining Company apparently was, for all intents and purposes, organized under the laws of the Philippine Islands as that which may be called a corporation and indeed it was a corporation insofar as the laws then prevailing were concerned, and so far as that connected here.

It appearing that it was organized and thereafter, for many years, until, and including the present time, existed as a corporation insofar as the laws of the Philippine Islands were concerned.

Under Article 122 of the Code of Commerce of Spain, there are some several manners in which an association of persons may be joined together for the purpose of operating a business, or businesses, which appears as follows:

'1st: A regular, general, copartnership in which all of the parties under a collective and commercial name bind themselves to participate in the proportion they may establish in some right and obligation.

'2d: The limited copartnership to which one or more persons contribute a specific amount of capital to a common fund to become liable for the business transactions of the firm executed exclusively by others under a collective name.

'3d: The corporation in which the members form a common fund by means of specific parts, or portions, represented by shares, or in any other unquestionable manner, leaving its management to removable managers, or administrators, who represent the company under an appropriate denomination according to the purpose, or undertaking, for which funds are to be employed.'

The latter of the above Philippine laws, then existent, seems to be that particular

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portion under which this Defendant was originally organized, or came into being, in its originality, and under which it has existed since, up to, and including this time.

The general evidence in this case further discloses that during the year 1903 and following the close of the war with Spain, the Defendant, organized itself under the Code of Commerce to which I have just now referred.

It may be said that it was organized for the purpose, or purposes, of mining gold and/or its kindred products. This organization has been operating, apparently, from its very inception, to the time and the date of this hearing, as and for gold mining and kindred products in the home state of its creation.

It must, however, be noted from all of the evidence and the exhibits in this case that in 1906 there came to the Philippine Islands a Corporation Code which, in substance, changed the then existing partnership and corporation laws with reference to their various original existences. However, when this 1906 change, or amendment, came into being, it was not for the purpose of changing any of the theretofore existing corporate, or partnership laws, or those created thereunder, at least insofar as their original inception, or organization, may have been there connected. It was, apparently, a law designated for the benefit of future business organizations which may, or might, come into the Islands for the purpose of the betterment of the Islands, as well as for the future good being of its business organizations.

Now, if any organization whose inception became a being prior to the passage of the 1906 law, desired to follow or become a part or be reorganized, or re-created, so to speak, under the new 1906 law, it, or they, might, of their own volition, freely and voluntarily be, or become, reorganized thereunder. Otherwise, it, or they, would not, of necessity, fall under the law of 1906.

It seems to follow, beyond peradventure of doubt in this case, that this Defendant did not see fit to reorganize, to reinvest itself in the law insofar as it pertained to it, or to re-create its being in and/or under the law of 1906. Therefore, it would only be reasonable to conclude that for circumstances of its own, it did not so desire to follow the new law then and there created. And, from the evidence, it further appears that this Defendant did not even make an attempt to re-create, reorganize, or otherwise, itself, under the 1906 law so that now a Court in hearing, can only say, by these words, that this Defendant is yet existent under its original and parentage organization as of 1903 without complying, and legally so, with the laws of 1906, and is yet a corporation under the 1903 organization.

It further appears that changes were made in the latter law with reference to partnerships, copartnerships, and corporations, but due to the fact that Defendant did not, in any wise, comply with this new law, then the Court is not required to go into any of the provisions of the new law, and the Court does not feel in this cause, or in these causes, that there is any connection; that is to say, a binding connection upon this Defendant with the law of 1906.

It is further noted from the evidence that the main office or the business office, of this Defendant was located in the city of Manila, in the Philippine Islands, and that it has operated its office in this city, within the Islands, since it originally came into existence and being.

Now, the Plaintiff here, in these cases, makes certain claims. Those claims are not at issue at this time, the sole question here being whether or not the summons, heretofore...

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