Garrett v. Pilgrim Mines Co., 5138

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BUDGE, C. J.
• Citation: 277 P. 567,47 Idaho 595
• Parties: JOHN F. GARRETT, Respondent, v. PILGRIM MINES COMPANY, a Corporation, and the UNKNOWN OWNERS AND UNKNOWN CLAIMANTS OF THE BATTLING JACK No. 1, TOPSY AND MAGGIE (Unpatented), and the PILGRIM LODE MINING CLAIMS (Patented), in Sawtooth Mining District, County of Blaine, State of Idaho, Defendants, and JOHN T. ENGLISH, C. F. KOELSCH and P. H. QUIRK, Trustees of the PILGRIM MINES COMPANY and the Stockholders of Members Thereof, Appellants
• Docket Number: 5138
• Decision Date: 06 May 1929

277 P. 567

47 Idaho 595

JOHN F. GARRETT, Respondent,
v.
PILGRIM MINES COMPANY, a Corporation, and the UNKNOWN OWNERS AND UNKNOWN CLAIMANTS OF THE BATTLING JACK No. 1, TOPSY AND MAGGIE (Unpatented), and the PILGRIM LODE MINING CLAIMS (Patented), in Sawtooth Mining District, County of Blaine, State of Idaho, Defendants,

and JOHN T. ENGLISH, C. F. KOELSCH and P. H. QUIRK, Trustees of the PILGRIM MINES COMPANY and the Stockholders of Members Thereof, Appellants

No. 5138

Supreme Court of Idaho

May 6, 1929

MINES AND MINERALS-FORFEITURE OF MINING CORPORATION CHARTER-JUDGMENT SUBSEQUENT TO.

1. Where charter of mining corporation was duly forfeited for delinquency in payment of license tax under C. S., secs. 4780, 4781, 4782, 4784, 4785, 4786 and 4790, probate court was without jurisdiction in subsequent suit against corporation in which summons was attempted to be served on it after date of forfeiture, and judgment and sheriff's deed to property sold under execution upon judgment were void.

2. Mining corporation owning nonproductive mines, which failed to file annual statement, under C. S., sec. 4780, in order to secure exemption from payment of annual license tax under sections 4781, 4782, held subject to forfeiture of its corporate charter, where it likewise failed to pay the annual license tax under sections 4784, 4785, 4786 and 4790.

[47 Idaho 596]

3. In action to quiet title to mining claims acquired by virtue of sheriff's deed under previous judgment against corporation, in which defense was that at that time corporation's charter had been forfeited for nonpayment of license taxes under C. S., secs. 4780, 4781, 4782, 4784, 4785, 4786 and 4790, stipulation that charter was declared forfeited on that ground in view of admitted date of declaration as November 30th, the date of the Governor's proclamation, amounted to admission that charter was actually forfeited, and not to statement that Governor merely declared charter would be forfeited.

4. In order to sustain service of summons on corporation by service on county auditor, it should be established under C. S., sec. 6676, that officers of corporation are outside of the state.

5. In action to quiet title to mining claims acquired by virtue of sheriff's deed under former judgment against corporation, trustees of corporation could assert defense that at the time of the attempted service of summons the corporation was nonexistent by virtue of forfeiture of its charter for nonpayment of license taxes under C. S., secs. 4780, 4781, 4782, 4784, 4785, 4786, 4790, since such circumstances rendered judgment void.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action to quiet title to real property. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellants.

Sullivan, Sullivan & Van Winkle, for Appellants, cite no authorities on points decided.

George Donart, for Respondent.

The charter of a corporation does not ipso facto become forfeited by failure to pay the annual license tax or to claim exemption therefrom. The forfeiture of the charter is not completed until there has been a full compliance with C. S., secs. 4784 and 4785 and a publication of the proclamation declaring the charter forfeited in one issue of two newspapers to be selected by the Secretary of State. (C. S., secs. 4784, 4785; Ferguson Fruit & Land Co. v. Goodding, 44 Idaho 76, 258 P. 557; Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567, 112 P. 454.)

In a collateral attack upon a judgment, under our law, the only evidence that is admissible in support of such attack is the judgment-roll, and if an examination of the judgment-roll shows the judgment regular on its face, it cannot be set aside in a collateral attack. (O'Neill v. Potvin, 13 Idaho 721, 93 P. 20; Weil v. Defenbach, 36 Idaho 37, 208 P. 1025.)

The rule relative to collateral attack upon judgments applies with equal force to the judgments of courts of general and courts of limited jurisdiction. (34 C. J., secs. 543, 553-555, 559.)

BUDGE, C. J. Givens, Wm. E. Lee and Varian, JJ., and Baker D. J., concur.

OPINION

[47 Idaho 597] BUDGE, C. J.

Respondent filed a complaint in the probate court of Blaine county naming Pilgrim Mines Company defendant, alleging the defendant then was and at all times "hereinafter mentioned has been a corporation duly organized and existing under and by virtue of the laws of the State of Idaho." A money judgment against defendant [277 P. 568] was prayed for on account of certain work alleged to have been done by respondent at the special instance and request of defendant and for provisions claimed to have been furnished, for which, it was alleged, respondent had not been paid. It appears that summons in the action was forwarded to the sheriff of Ada county, who served the same by leaving a copy thereof, together with a copy of the complaint, with the auditor of Ada county. No appearance was made for or on behalf of the defendant, and judgment was entered in the cause in favor of respondent. Attachment having been issued against the property of defendant, the same was levied upon, sold to respondent under execution and in satisfaction of his judgment and sheriff's deed issued therefor, the property covered thereby being described as "The Pilgrim Lode Mining Claim, patented, in the Sawtooth Mining District."

[47 Idaho 598] By second amended complaint filed in the district court for Blaine county, respondent sought to have his title quieted to certain described mining claims, among which was the Pilgrim Lode Mining Claim acquired by him by virtue of the sheriff's deed above referred to. Appellants, as trustees of the Pilgrim Mines Company and the stockholders or members thereof, having petitioned the district court to be made parties defendant to the action, and leave being granted in such respect, filed an answer and cross-complaint, wherein it was alleged that the charter of the Pilgrim Mines Company as a corporation had been, on November 30, 1923, declared to be and was forfeited under the provisions of C. S., chap. 188; that...