Burton v. Oliver Farm Equipment Sales Co.

• Decision Date: 04 October 1935
• Parties: BURTON v. OLIVER FARM EQUIPMENT SALES CO.
• Court: Florida Supreme Court

163 So. 468

121 Fla. 148

BURTON v. OLIVER FARM EQUIPMENT SALES CO.

Florida Supreme Court, Division B.

October 4, 1935

Rehearing Denied Oct. 23, 1935.

Action by the Oliver Farm Equipment Sales Company against R. P Burton. Judgment for plaintiff, and defendant appeals.

Affirmed. Appeal from Circuit Court, Marion County; W. S Bullock, judge.

COUNSEL

F. R Hocker, of Ocala, for appellant.

C. A. Savage, Jr., of Ocala, for appellee.

OPINION

TERRELL Justice.

This is a suit by appellee, a Maryland corporation, to foreclose a chattel mortgage. A foreclosure decree was entered, and at the sale the appellee (complainant below) purchased the chattels and secured a deficiency decree against appellant in the sum of $500. The instant appeal is from that decree.

It is first contended that this suit should be abated because the plaintiff, appellee here, is a Maryland corporation and had not at the time of filing its bill of complaint qualified to do business in this state by filing its charter and paying the requisite fee as the law directs.

Section 4098, Revised General Statutes of 1920, section 6029, Compiled General Laws of 1927, among other things, provides that no action shall be maintained or recovery had in any of the courts of this state by any foreign corporation until it qualifies to transact business as required by law.

It will be observed that the statute inhibits the maintenance of any action or suit. It makes no reference to the institution of one. The rule generally approved is that where the statute merely forbids the maintenance of a suit by a foreign corporation, it is not prohibited from instituting one; but, if challenged, further action on it is stayed or it becomes dormant pending the corporation's compliance with the law. In the case at bar appellee had not qualified at the time suit was instituted, but did so during the progress of the suit and prior to final decree. This was sufficient. Christie v. Highland Waterfront Co., 114 Fla. 263, 153 So. 784; Jarvis v. Chapman Properties, Inc., 110 Fla. 17, 147 So. 860; 12 R. C. L. 86.

It is next contended that the court below erred in its decree of foreclosure because appellee, when executing said mortgage, was transacting business in this state in violation of chapter 12421, Acts 1927, providing punishment for and prohibiting the use of misleading trade-names. Section 1 of chapter 12421, Acts 1927, is as follows:

'That no natural person nor group of natural persons, not having previously incorporated under the laws of the State of Florida, or, in the case of a foreign corporation, not having previously complied with the corporation laws of this State, shall do business for profit under any trade name or style, which includes the word, 'corporation,' or the word 'company,' or the word 'association,' or the word 'society,' unless said trade name or style also includes the words 'Not Incorporated,' wherever publicly displayed, on a signboard, in

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