Cannon v. Breckenridge Mercantile Co.
| Decision Date | 09 June 1902 |
| Citation | 18 Colo.App. 38,69 P. 269 |
| Parties | CANNON et al. v. BRECKENRIDGE MERCANTILE CO. |
| Court | Colorado Court of Appeals |
Appeal from Arapahoe county court.
Action by the Breckenridge Mercantile Company against James Cannon Jr., and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Charles T. Brown and Edmund J. Churchill, for appellants.
Rogers Cuthbert & Ellis (Pierpont Fuller, of counsel), for appellee.
This suit was brought to enforce the personal liability of directors for the debt of the corporation because of a failure to file the annual report as required by statute. Gen.St. § 252; Mills' Ann.St. § 491. Neither the existence of the debt nor the liability of the corporation therefor is contested, and that it was incurred within the year preceding the time when the annual report should have been filed is conceded. It is also admitted that the annual report was not filed within the 60 days from the 1st of January, nor, indeed, at any time before the commencement of this suit. It is also admitted that a certificate of full paid-up capital stock had not been filed in any office where it was required to be filed prior to the expiration of the time limited for the filing of the annual report. Such a certificate was prepared, signed, and verified on February 28th, but it was not filed in any office until March 7th. The time limited for the filing of the annual report expired March 1st; the certificate of paid-up capital stock was therefore filed six days too late. Under the plain reading of the statute,--and it has been repeatedly so held by this court,--a right of action by a creditor against the defaulting directors accrued immediately upon default being made. By the plain language of the act the only thing which would excuse the making of this report would be the making and filing of the certificate of paid-up stock previous to the expiration of the time when the annual report was required to be made. The making alone would not excuse it because the statute reads "made and filed." There is no room for construction. Both the making and the filing were required. The requirement is a most reasonable one, too because it is the filing alone which gives the requisite publicity, and which in reality effectuates the purpose and intent of the statute. It certainly cannot be contended that this court would have any power to extend the time six days or even one day. If so, we...
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... ... Colo.App. 150, 153, 64 P. 368; Hazelton v. Porter, 17 ... Colo.App. 1, 4, 67 P. 170; Cannon v. Breckenridge Merc. Co., ... 18 Colo.App. 38, 69 P. 269; Reuter Hub & Spoke Co. v. Hicks, ... ...
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...of Colorado, where enacted, the statute is held to be penal. Hazelton v. Porter, 17 Colo. App. 1, 67 Pac. 170; Cannon v. Breckenridge Mercantile Co., 18 Colo. App. 38, 69 Pac. 269. While the interpretation put upon the statute by the highest court of the state where enacted is not binding u......