Haw. Mill Co. v. Andrade

• Decision Date: 02 December 1902
• Citation: 14 Haw. 500
• Parties: HAWAII MILL COMPANY, LIMITED, v. ALFRED ANDRADE.
• Court: Hawaii Supreme Court

14 Haw. 500

HAWAII MILL COMPANY, LIMITED,

v.ALFRED ANDRADE.

Supreme Court of the Territory of Hawai‘i.

Submitted November 24, 1902.

Decided December 2, 1902.

EXCEPTIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.

Syllabus by the Court

It is error for a Circuit Court to grant a motion for non-suit at the commencement of a trial of a cause appealed from the District Court on the ground that the declaration fails to allege that the plaintiff is a corporation.

Smith & Parsons and Thayer & Hemenway for plaintiff.

Fitch & Highton for defendant.

FREAR, C.J., GALBRAITH AND PERRY, JJ.

OPINION OF THE COURT BY GALBRAITH, J.

The plaintiff commenced an action in the District Court for South Hilo, Hawaii, to recover damages for an alleged trespass, and judgment was entered against the defendant for $150.00 and costs. The defendant appealed to the Circuit Court for the Fourth Circuit. In the latter court a stipulation was filed waiving a jury and agreeing that the cause might be tried to the court. When the case was called and the plaintiff had placed its first witness on the stand, the defendant moved that a non-suit be entered on the ground that the declaration was indefinite and uncertain in that it failed to allege that the plaintiff was a corporation. This motion was granted and the plaintiff excepted and comes to this court by bill of exceptions.

There is no allegation in the declaration that the plaintiff is a corporation. It is referred to as “Hawaii Mill Co., Ltd.”; although the transcript from the District Court shows that proof was there made that the plaintiff was a corporation. The motion for non-suit was made after answer of the general issue. The joining issue under the practice in many of the states would be held to be an admission of the character in which the plaintiff sued. 6 Thompson, Corporations, Sec. 7665 and cases cited in Note 3.

There are many cases that hold, that in actions by or against a corporation whether ex contractu or ex delicto, it is not necessary to allege that the plaintiff or the defendant is a corporation. 6 Thompson, Sec. 7658. “Most of these decisions proceed upon the ground that where the plaintiff or the defendant, as the case may be, is described in the declaration or complaint by a name which naturally imports that it is a corporation, that is a sufficient allegation that such is the fact, for the purposes of an action until it is controverted.” Id. p. 6074. Other courts hold that it is neither necessary to allege that the plaintiff is a corporation or to prove that fact on the trial in the absence of a special plea putting the fact of incorporation in issue. Indianapolis Sun Company v. Howell, 53 Ind. 527; Stanley v. Railroad Co., 89 N. C. 331;Cement Co. v. Noble, 15 F....