Greenbrier Lumber Co v. Others

• Decision Date: 25 June 1887
• Citation: 30 W.Va. 43,3 S.E. 227
• Parties: Greenbrier Lumber Co. v. Ward and others.
• Court: West Virginia Supreme Court

3 S.E. 227

30 W.Va. 43

Greenbrier Lumber Co.

v.Ward and others.

Supreme Court of Appeals of West Virginia.

June 25, 1887.

1. Corporations—Forfeiture of Franchise.

A cause of forfeiture cannot be taken advantage of, or enforced against a private corporation, collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose, against the corporation, so that it may have an opportunity to answer; and the state can alone institute such a proceeding, since it may waive a broken condition of a compact with it as well as an individual.¹

2. Same—Non-Payment of License Tax.

This is as true when the cause of forfeiture is the non-payment of a license tax to the state, as it is of any other cause of forfeiture, the law in this respect not having been altered by section 8, c. 20, Acts 1885.

3. Same—Dissolution.

At common law, when a corporation ceased to exist by expiration of its charter, or by its dissolution by a forfeiture of its charter, thus judicially ascertained and declared, or in any other manner, all suits for or against it abated. But this is not now the law in this state; the common law on this subject having been repealed by section 59 of chapter 53 of the Code. In this state a suit by or against a private corporation cannot be abated or dismissed because the corporation has been dissolved by a forfeiture of its charter, so judicially ascertained or declared, or by its dissolution in any other manner.

(Syllabus by the Court.)

Writ of error from circuit court, Roane county.

This was an action of assumpsit brought in the circuit court of Roane by a corporation, the Greenbrier Lumber Company, against James T. Ward and P. G. Cunningham, late partners doing business under the name of Ward & Cunningham. The declaration was filed at February rules, 1884, and contained nothing but the common counts for goods sold and delivered by the plaintiff to the defendant, at their request; for work and labor done, and materials provided by the plaintiff for the defendants, at their request; for money lent by the plaintiff to the defendants, at their request; for money paid by the plaintiff to the defendants, at their request; for money had and received by the defendants for the use of the plaintiff; for money found to be due from the defendants to the plaintiff upon an account stated between them. Thisdeclaration was in the usual and proper form. A demurrer to this declaration was properly overruled on March 27, 1884, and the defendants pleaded not guilty, and issue was joined, and the case continued for the defendants, at their costs. At the next term, on August 28, 1884, the defendants filed a plea "that the plaintiff is not a corporation as in the declaration is alleged, and was never at any time such a corporation hitherto, and of this they put themselves upon the country." This plea was supported by proper affidavit, in due form. The plaintiff objected to the filing of this plea, but this objection was overruled, and the defendants offered specifications of accounts and set-offs, which were filed by leave of the court. The plaintiff replied generally to this plea, and issue was joined thereon. At the next term of the court the case was continued, at plaintiff's costs, after the plaintiff, by leave of the court, had filed its bill of particulars. On March 30, 1885, the issue, on plea denying that the plaintiff was an incorporated company, neither party desiring a jury, was tried by the court upon the evidence, and the court in this issue found for the plaintiff, and rendered judgment for the costs of the plaintiff in and about said plea expended, except an attorney's fee against the defendants. The next day the case was continued, at the defendants' costs. On March 31, 1886, the defendants suggested on the record the dissolution of the Greenbrier Lumber Company, the plaintiff, as a corporation, and on August 26, 1886, this order was entered on the record in this case: "This day came the said defendants, Ward & Cunningham, and suggested to the court here that since the last term of this court the charter of said company has been wholly forfeited to this state, and to support said suggestion, and as proof of said forfeiture, the said defendants now file in the papers of said cause, the certificate of Henry S. Walker, the secretary of state of the state of West Virginia, under the great seal of this state, bearing date on the thirtieth of July, 1886, showing the forfeiture of the charter of said company for the non-payment of the license tax as provided for and prescribed by chapter 20 of the acts of the legislature of West Virginia for the year 1885."

The said certificate is as follows, to-wit:

"State of West Virginia,

"Office of Secretary of State.

"I, Henry S. Walker, secretary of state of the state of West Wirginia, do hereby certify that, as appears from the records of my said office, the Greenbrier Lumber Company, a corporation created and organized under the laws of West Virginia, has forfeited its charter to the state in accordance with the provisions of section 8 of chapter 20, acts of the legislature of 1885, by the non-payment on or before the first day of May, 1886, of the license tax imposed by the section and chapter aforesaid. And I do further certify that duo publication of such forfeiture has been made by the auditor as required by law.

"Given under my hand and the great seal of the said state, at the city of Charleston, the thirtieth day of July, 1886.

[Seal.] "Henry S. Walker, Secretary of State."

And on August 30, 1886, this order was made: "This day came the parties by their attorneys, and thereupon the defendants claimed that the plaintiffs could not maintain the suit because of the forfeiture suggested in this case, and of the evidence of said forfeiture filed in the papers of this suit, and moved the court to dismiss the plaintiff's action, because of such forfeiture, and the plaintiffs resisted such motion, and the matters of law arising thereupon being argued and considered by the court, said motion is overruled, the court being of opinion that said forfeiture does not prevent the plaintiffs from prosecuting their suit to judgment and final termination."

A plea in writing was tendered on November 26, 1886, and an order of the court made noting that it had been tendered at the August term preceding, and objected to by the plaintiff. This order was a nunc pro tunc order, the clerk having failed to enter it as of the August term preceding, though itwas then ordered by the court. This plea is as follows: "And now at this day, to-wit, on the twenty-seventh day of August, 1886, come the said defendants, by their attorneys, and say that the said plaintiff ought not to further maintain its said action against the said defendants, because they say that after the said supposed causes of action, in the said declaration mentioned, accrued to the said plaintiff, and after the last continuance of the plea aforesaid, that is to say, after the----of March, 1886, on which day the said action was continued until the present August term, 1886, of said court, which term is now being holden, to-wit, before this day, the said plaintiff wholly forfeited its charter as such company to the state of West Virginia, because and on account of its failure to pay the annual license tax to the auditor of said state on or before the first day of May, 1886, as said corporation was required to do by section 8 of chapter 20 of the acts of the legislature of West Virginia, passed on the twenty-sixth day of February, 1885, and approved on the twenty-seventh day of February, 1885, which forfeiture of said charter was duly published by said auditor, as required by law, as will fully appear by the certificate of Henry S. Walker, secretary of state of the state of West Virginia, under the great seal of the state, and bearing date on the thirtieth day of July, 1886, and which the said defendants now bring here into court, the date whereof is the day and year last aforesaid. And so it is, the said defendants allege and charge that the said charter of the said corporation was and is wholly forfeited to the said state of West Virginia, and that thereby the said corporation was and is wholly dissolved, and ceased to exist, and this the said defendants are ready to verify. Wherefore they, the said defendants, pray judgment if the said plaintiff ought further to have or maintain its aforesaid action thereof against them." This plea was supported by affidavit.

On November 27, 1886, this final judgment was entered by the court: "This day came again, as well the said plaintiff by its attorney, as the defendants by their attorneys, and the matters of law arising on the objection by the plaintiff to the filing of the plea, in writing, of the said defendants, heretofore tendered, being fully argued by counsel, and maturely considered by the court, it is the opinion of the court that said objection to said plea is not well taken; it is therefore considered by the court that said objection to the said plea and to the filing thereof be, and the same is, hereby disallowed and overruled, and on motion of the said defendants, the said plea is now filed; to the overruling of the said objection to the said plea, by the court, and to the filing of said plea, the said plaintiff by its said attorney excepts: and the said plaintiff now replies generally to the said plea, and issue is thereon joined, and neither party requiring a jury to try said issue, the court is substituted in lieu of a jury, to hear the evidence and try the issue joined on said plea as aforesaid; and having heard all the evidence adduced, and the arguments of counsel thereon, and maturely considered the same, the court doth find for the defendants upon the said issue joined. It is therefore further considered by the court that the said plaintiff take nothing as against said defendants, by its said action; that said suit be, and the same is, hereby dismissed; and...