Hall v. Kimsey

• Decision Date: 24 February 1934
• Docket Number: 23169.
• Citation: 173 S.E. 437,48 Ga.App. 605
• Parties: HALL v. KIMSEY et al.
• Court: Georgia Court of Appeals

173 S.E. 437

48 Ga.App. 605

HALL v. KIMSEY et al.

No. 23169.

Court of Appeals of Georgia, Second Division

February 24, 1934

Error from Superior Court, Towns County; B. P. Gaillard, Jr. Judge.

Action by J. L. Hall against H. C. Kimsey and others. Judgment for defendants, and plaintiff brings error.

Reversed.

R. C Jenkins, of Eatonton, for plaintiff in error.

J. B Jones, of Gainesville, and T. S. Candler, of Blairsville, for defendants in error.

Syllabus OPINION.

STEPHENS Judge.

1. The assignment of error in the bill of exceptions, upon the judgment of the trial judge in passing upon both law and facts, is, under the ruling in Gleason v. Traynham & Ray, 111 Ga. 887, 36 S.E. 969, sufficient.

2. Where a regularly chartered corporation continues, after the expiration of its charter, to conduct, within its corporate powers, the business for which it was incorporated, and deals with others as a corporation, it is a de facto corporation and is liable upon contracts which it has made within its corporate powers. In a suit against it upon a contract so made, a defense that the corporation's charter has expired and that it is nonexistent as a corporation cannot be maintained. Georgia, etc., R. Co. v. Mercantile Trust & Deposit Co., 94 Ga. 306, 21 S.E. 701, 32 L.R.A. 208, 47 Am.St.Rep. 153; Torras v. Raeburn & Verell, 108 Ga. 345, 33 S.E. 989; Brown v. Atlanta Railway & Power Co., 113 Ga. 462, 39 S.E. 71; Brooke v. Day, 129 Ga. 694, 59 S.E. 769; Howard v. Long, 142 Ga. 789, 83 S.E. 852; Ward-Truitt Company v. Bryan & Lamb, 144 Ga. 769, 87 S.E. 1037; 14 C.J. p. 203, § 214. This is true notwithstanding the de facto corporation does business with the public under and holds itself out as having a name which is different from, though a slight variation of, the name under which it was incorporated.

3. Where a corporation, incorporated under the name of "Trustees of the Young Harris Institute," continues, after the expiration of its charter, to operate within its corporate powers in the conduct of the business for the transaction of which it was incorporated, and holds itself out to the public as a corporation under the name of "Young L. G. Harris College," and does business as a corporation under that name, it is a de facto corporation. In a suit against it as "Young L. G. Harris College," to recover on open account for property and services furnished to it as "Young L. G. Harris College." it cannot escape liability upon the ground that its charter had expired and there was no such corporation as "Young L. G. Harris College."

4. The negligent failure of a clerk of the superior court to sign the process which is attached to a petition filed in his office, and to sign the copy of the process, is a breach of the clerk's official duty, and consequently a violation of his official bond which obligates him to the faithful performance of the duties of the office. And where, as a result thereof, the service which...