Bradley v. Reppell

• Decision Date: 17 March 1896
• Parties: Bradley et al. v. Reppell, Appellant
• Court: Missouri Supreme Court

32 S.W. 645

133 Mo. 545

Bradley et al. v. Reppell, Appellant

Supreme Court of Missouri, First Division

March 17, 1896

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Teasdale Ingraham & Cowherd for appellant.

(1) The West Kansas City Land Company ceased to exist as a corporation on March 14, 1879. Laws of Missouri, 1858-1859 p. 292; 1 R. S. Mo. 1855, sec. 1, art. 1, chap. 34, p. 369; 2 Morawetz on Corp. [2 Ed.], sec. 1005, p. 965 and sec. 418, p 396, vol. 1 of same; 2 Beach on Private Corp., sec. 780; Scanlan v. Crawshaw, 5 Mo.App. 337; Fairchild v. Masonic Hall Ass'n, 71 Mo. 526; Marysville Inv. Co. v. Munson, 44 Kan. 491; State ex rel. v. Ladies, etc., 99 Mo. 533; Krutz v. Paola Town Co., 20 Kan. 397; Sturges v. Vanderbilt, 73 N. Y. (28 Sickels) 384, 389; Greeley v. Smith, 3 Story C. C. 658; Railroad v. Rainey, 7 Cold. (Tenn.) 432; Bank v. Trimble, 6 B. Monroe (Ky.), 601; Asheville Division v. Aston, 92 N.C. 585; White v. Campbell, 5 Humph. (Tenn.) 38; Eagle Chair Co. v. Kelsey, 23 Kan. 635; Bank v. Walker, 66 N.Y. 427; Bank v. Wrenn, 3 Smede & M. 791; Brook Transit Co. v. City, 33 Sickels (78 N. Y.), 530; State v. Bridge Co., 85 Me. 29, 30; Cooper v. Oriental Ass'n, 100 Pa. St. 405. (2) The question may be raised in the manner followed in this cause. 2 Morawetz on Private Corp. [2 Ed.] 1031, p. 987; Investment Co. v. Munson, 44 Kan. 491; Casey v. Railroad, 5 Iowa, 367; Greeley v. Smith, 3 Story C. C. 658; Land Co. v. Laigle, 59 Tex. 345; Pape v. Bank, 20 Kan. 444; People v. President, etc., 9 Wend. 383; Harris v. McGregor, 29 Cal. 124; Mokelumne Co. v. Woodbury, 14 Cal. 426; Paschall v. Whitsett, 11 Ala. 479; Att'y Gen. v. Railroad, 112 Ill. 538; Ins. Co. v. Bank, 68 Ill. 350; Snyder v. Studebaker, 19 Ind. 462; Morgan v. Ins. Co., 3 Ind. 285; Heaston v. Railroad, 16 Ind. 278; Thompson on Corp., secs. 500, 505, 506, 530, 531, 1851, 1852. (3) Respondents, not having a complete or additional abstract, are satisfied with the abstract filed by appellant. R. S. 1889, sec. 2253; supreme court rule number 11. It is presumed as a matter of fact that the bill of exceptions contains all the evidence applicable to the particular rulings to which exceptions were saved, and that this court has before it the same matter which was decided by the trial court. Supreme court rule number 8; Peltz v. Eichele, 62 Mo. 174. It is presumed on an appeal that the trial court was correct in all its rulings, and the burden is on the appellant to show the error. Long v. Long, 96 Mo. 181; Smith v. Johnson, 107 Mo. 497. The rule is that no exception is available on appeal except such as has been expressly passed upon by the trial court. Bender v. Matney, 122 Mo. 254; Standard Milling Co. v. Transit Co., 122 Mo. 258.

Hardwicke & Hardwicke and Porterfield & Pence for respondents.

(1) It was the duty of the appellant and not of respondents to see that the transcript was perfect and complete and to preserve in the record the information necessary to a proper determination of the appeal. In the absence of the evidence, the instructions and the motion for new trial, it is impossible for this court to determine whether the lower court committed error in sustaining the motion for a new trial, and every reasonable presumption will be indulged in favor of the correctness of the ruling of the trial court and its order sustaining the motion for new trial should be affirmed. Kennedy v. Holliday, 105 Mo. 24; Smith v. Johnson, 107 Mo. 494; Brand v. Cannon, 118 Mo. 595; Flynn v. Neosho, 114 Mo. 567; Whiting v. Kansas City, 39 Mo.App. 259; Vaughan v. Kansas City, 34 Mo.App. 141. (2) The supreme court can not determine whether the lower court has committed error in making any ruling, without having before it the same matter upon which the lower court has passed. Brand v. Cannon, 118 Mo. 595. (3) On appeal from an order granting a new trial, the supreme court in reviewing the action of the trial court is not confined to the ground stated in the order of the court granting the new trial, but will examine all the grounds set forth in the motion for a new trial, and if the order of the court can be sustained upon any one ground set forth in the motion, the order granting the new trial will be affirmed. "The order of the court may be proper but the ground upon which it is made be improper." Hewitt v. Steele, 118 Mo. 463; Lovell v. Davis, 52 Mo.App. 342. (4) It is not the verdict and judgment in this case but the order of the court setting them aside which is presumed to be correct. It is from this order that the appeal is taken. Its correctness will be upheld by every reasonable presumption and in the absence of the matters upon which the court passed in making the order, the supreme court can not do otherwise than affirm the order of the trial court. Authorities cited under division 1; Overholt v. Vieths, 93 Mo. 422. (5) It is the settled law of this state that a conveyance to or by a corporation de facto can be assailed on the ground of lack of corporate existence only by the state. McIndoe v. St. Louis, 10 Mo. 576; Chambers v. St. Louis, 29 Mo. 576; Land v. Coffman, 50 Mo. 243; Shewalter v. Pirner, 55 Mo. 218; St. Louis v. Shields, 62 Mo. 247; Catholic Church v. Tobbein, 82 Mo. 418; Finch v. Ullman, 105 Mo. 255; Crenshaw v. Ullman, 113 Mo. 633; Ins. Co. v. Smith, 117 Mo. 261; Gaslight Co. v. St. Louis, 11 Mo.App. 64, 65; affirmed in 84 Mo. 302; 2 Morawetz on Corp., secs. 745-778; 1 Beach on Corp., secs. 13 and 14; Cook on Stock and Stockholders, sec. 637.

Brace, P. J. Gantt, Sherwood, Macfarlane, and Burgess, JJ., concurring with Brace, C. J., therein; Barclay and Robinson, JJ., dissenting.

OPINION

In Banc.

DIVISION ONE.

Brace P. J.

This is an action in ejectment in common form to recover the possession of certain lands described in the petition situate in Kansas City, instituted in the circuit court of Jackson county, taken thence by change of venue and tried in the circuit court of Clay county. The answer was a general denial, and a plea of the statute of limitations as to a part of the land, and no claim as to the remainder. Issue was joined by reply.

On the trial, at the close of the plaintiff's evidence, the court sustained a demurrer to the evidence as to the plaintiff T. C. Bradley, and overruled it as to the other plaintiffs Samuel F. Freeman and The Atlas Investment Company. The trial then proceeded, and after all the evidence was heard the issue was submitted to the jury who returned a verdict for the defendant. Thereupon plaintiffs filed motions for new trial and in arrest of judgment. The motion for new trial, coming on to be heard, was sustained and the verdict set aside on the following grounds, specified of record:

"9th. Because the court erred in refusing to admit as evidence a certified copy of the warranty deed dated August 20, 1880, from the West Kansas City Land Company to Charles W. Whitehead, which certified copy was offered in evidence by plaintiff."

"16th. Because the court erred in refusing to admit as evidence the certified copy of the quitclaim deed from the West Kansas City Land Company to Charles W. Whitehead, which is offered in evidence by the plaintiff."

From the order sustaining this motion and setting aside the verdict, the defendant appeals.

1. By a special act of the legislature approved March 14, 1859 (Sess. Acts, 1858-1859, p. 292) the West Kansas City Land Company was incorporated with power "to make contracts, sue and be sued," and to "purchase and hold any quantity of land in Kaw township, in Jackson county, Missouri, not exceeding one thousand acres; to lay the same off into parks, squares, and lots; improve, sell, or convey the same by deed; to repurchase and reconvey any portion of the same, when necessary in transacting the legitimate business of said company; and purchase and hold any personal property necessary for the purposes above indicated." Nothing was said in the act either directly or indirectly as to the duration of the company's corporate existence.

By the general law in force at the time this company was thus incorporated it was provided that "every corporation, as such, has power: First. To have succession by its corporate name, for the period limited in its charter, and when no period is limited, for twenty years." R. S. 1855, vol. 1, p. 369, sec. 1. And that "upon the dissolution of any corporation, * * * the president and directors, or managers of the affairs of said corporation, at the time of its dissolution, * * * shall be trustees of such corporation, with full power to settle the affairs, etc." R. S. 1855, vol. 1, p. 375, chap. 34, sec. 24.

The corporation thus chartered was an ordinary business corporation whose corporate existence by virtue of these statutory provisions expired on the fourteenth of March, 1879, and the two deeds rejected by the court upon the trial were executed after that date in the name and under the corporate seal of the company "by William McCoy, President" "Attest, Edw. A. Allen, Secretary."

The defendant objected to the introduction of these deeds offered in evidence by the plaintiffs as constituting a part of their chain of title, and in support of his objections read in evidence the act of the legislature aforesaid incorporating said company, and it was admitted that said company, in whose behalf said deeds had been so executed, was the same company by said act incorporated, and that it was never thereafter reincorporated.

The defendant's claim of title was by adverse possession, and there is not in the case any question of estoppel to deny the existence of the corporation by reason of the relation sustained by the defendant to the land company or of any dealings by him directly or indirectly with it, or...