Christensen v. Boss, 36009
Decision Date | 10 December 1965 |
Docket Number | No. 36009,36009 |
Citation | 179 Neb. 429,138 N.W.2d 716 |
Parties | Paul CHRISTENSEN, Appellant, v. Edwin BOSS and Pathfinder Hotel Company, Appellees. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. It is well settled that a corporation may be dissolved by a surrender of its charter with the consent of the sovereignty creating it, and such a dissolution is not invalid as impairing the obligation of the contracts of the corporation with third persons.
2. The surrender of a charter can be made only by some formal, solemn act of the corporation, and will be of no avail until accepted by the government. There must be the same agreement of the parties to dissolve that there was to form the compact. It is the acceptance which gives efficacy to the surrender.
3. Where a corporation has had its charter forfeited and its legal existence terminated by dissolution in law, it is no longer a corporation, either de jure or de facto, and such fact may be shown in any case in which the existence of the corporation is properly in issue, and by private individuals as well as by the state, and such dissolution may be shown in a collateral proceeding.
4. Where a corporation has in fact been dissolved and no longer exists as a legal entity, the rule of its incapacity to sue or be sued applies regardless of the mode of dissolution whether by judicial decree or otherwise. In the absence of statutory provisions to the contrary no action at law can be maintained by or against it as a corporate body or in its corporate name.
5. By statute in this state, section 21-186, R.R.S.1943, a corporations' existence is prolonged for 5 years after dissolution for the purpose of prosecuting or defending suits by or against it and of enabling it to wind up its affairs as stated therein.
6. Where a statute continues the existence of a corporation for a certain period after its dissolution for the purpose of prosecuting and defending suits, etc., the corporation becomes defunct upon the expiration of such period, at least in the absence of a provision to the contrary, so that no action can afterwards be brought by or against it, and must be dismissed.
7. The order or determination of an administrative body acting with jurisdiction and under authority of law is not subject to collateral attack in the absence of fraud or bad faith.
8. Section 21-186, R.R.S.1943, does not distinguish between matured and contingent claims. The section is a limitation on the existence of the corporation itself.
Sidner, Gunderson, Svoboda & Schilke, Fremont, for appellant.
Spear, Lamme & Simmons, Fremont, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
Paul Christensen, plaintiff and appellant, brought this action against Edwin A. Boss and Pathfinder Hotel Company, defendants and appellees, in the district court for Dodge County, nebraska. The defendants each separately appeared specially and challenged the jurisdiction of the court over their respective persons. Each special appearance was sustained by the trial court and the action dismissed.
From an order overruling his motion for a new trial, the plaintiff appeals to this court. The plaintiff does not assign error to the trial court in sustaining the special appearance of Edwin A. Boss and the sole question before us concerns the propriety of the trial court's ruling on the special appearance of the Pathfinder Hotel Company.
Plaintiff's petition alleges he is the owner of the premises on which a hotel, known as the Pathfinder Hotel, is located in Fremont, Nebraska. The action is based on a lease under which the plaintiff through various assignments and extensions asserts the right of lessor and the duties of defendants Edwin A. Boss and Pathfinder Hotel Company are fixed as lessees. Plaintiff alleges the lease required defendants to maintain the leasehold property and the furniture and fixtures thereof in good repair, which provisions were breached by defendants. Plaintiff alleges that in 1958, through false representations of the defendants as to the condition of the premises and responsibility of the third parties named Calder, his consent was obtained to the assignment of the lease to the Calders although the defendants remained liable on the covenants thereof. Defendants had obtained a conditional sales contract on furniture in the hotel from the Calders and defendant Boss claimed some lien thereunder. Plaintiff alleges that 7 months' rent was in default, and that it was necessary for the court to determine the amount due on the lease and decree it to be a lien on the personal property in the hotel as provided in the plaintiff's lease superior to any lien of the defendants. It alleges the defendant Boss has attempted a dissolution of defendant Pathfinder Hotel Company but the claimed dissolution is ineffective and incomplete. Plaintiff prays for specific performance of the lease contract, for a determination that the dissolution of the defendant company is ineffective to relieve it of its obligation, and of the rent due and the priority of liens, and for the appointment of a receiver.
Plaintiff contends that the court erred in sustaining the special appearance and dismissing the action and that its ruling is contrary to law.
The summons for the Pathfinder Hotel Company dated May 5, 1964, was directed to the sheriff of Dodge County and from the return thereto it purports to have been served by leaving a copy at the last usual place of business of the defendant, no other person designated in section 25-515, R.R.S.1943, providing for service on dissolved corporations being found in that county.
The special appearance on behalf of the defendant was filed by Donald A. Boss who appeared on behalf of the defendant company and as amicus curiae. It states that the corporation had been dissolved by the Secretary of state on November 17, 1958, and had no legal existence.
The special appearance was supported by an affidavit of Donald A. Boss who was secretary of the defendant Pathfinder Hotel Company, a Nebraska corporation, prior to November 19, 1958, the contents of which are here summarized. It avers that pursuant to a previous contract of sale the personal property in the hotel building owned by the plaintiff and previously operated by the defendant company was turned over to the Calders and the lease on the hotel property assigned to them prior to March 1, 1958. The defendant discontinued doing business in Fremont, Dodge County, Nebraska, prior to March 1, 1958, and has done no business therein since. The registered office and agent of the defendant was on February 7, 1957, changed from Fremont, Nebraska, to that of the agent of the defendant company John G. Papineau at Omaha, Nebraska, which change was registered in the Secretary of State's office. On November 17, 1958, a certificate of dissolution of the defendant company was filed and recorded in the office of the Secretary of State of Nebraska. A copy of the certificate of the Secretary of State, showing the filing and recording of the dissolution, was attached. The notice of dissolution was published in the Daily Record of Omaha, Nebraska, for 3 consecutive weeks ending December 10, 1958. A copy of the notice which included a statement of assets and liabilities and the names of the person who would manage the corporation and distribute its assets, with the affidavit of publication by the manager of the paper, is attached. A copy of this notice and affidavit was filed in the office of the county clerk of Douglas County on December 17, 1958, and a like copy with the Secretary of State. On November 3 and 4, 1958, letters were sent to the plaintiff and another who then had an interest in the premises, notifying them of the intended dissolution. At or prior to its dissolution all of the assets of the defendant company were assigned to the Boss Hotel Company, the sole stockholder, a Delaware corporation, which holds any lien rights in the property mentioned by plaintiff. After November 17, 1958, the the defendant company did no business in Nebraska.
The procedure to be followed to effect voluntary dissolution of a corporation as it existed at the time under consideration is set out in the original section 21-183, R.R.S.1943. It sets forth the various steps to be taken and for notice to be given preliminary to holding a meeting of the stockholders of the corporation to vote on a resolution of dissolution submitted to them by the board of directors. It provides that if two-thirds of the stockholders assent in writing to the dissolution, such consent with the names and residences of the directors and officers and a list of the stockholders shall be filed in the office of the Secretary of State. He, upon being satisfied by due proof that these requirements have been complied with, shall issue a certificate that such consent has been filed and on the issuance of this certificate and proof of publication of the notice required in section 21-1,147, R.R.S.1943, has been filed, the corporation shall be dissolved.
Section 21-1,147, R.R.S.1943, provides in part:
In 19 Am.Jur.2d, Corporations, s. 1591, p. 956, that text states: ...
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