Holter v. Hauser

• Decision Date: 07 February 1921
• Parties: A. M. HOLTER, Respondent, v. S. T. HAUSER, Jr., GEORGE H. HILL and H. D. HAUSER, Respondents, and AMERICAN MINING COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

195 P. 628

33 Idaho 406

A. M. HOLTER, Respondent, v. S. T. HAUSER, Jr., GEORGE H. HILL and H. D. HAUSER, Respondents, and AMERICAN MINING COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

February 7, 1921

DEFAULT-JUDGMENT-PARTY-DEFUNCT CORPORATION-SUCCESSOR IN INTEREST-APPEAL.

1. A default and default judgment entered on the motion of an attorney representing a corporation whose corporate charter has expired are null and void.

2. A new corporation which claims to have succeeded to the interests of a defunct corporation has no right to continue the action in the absence of an order of the court allowing it to do so.

3. An attempted appeal in the name of a defunct corporation, no order having been made allowing the new corporation to continue the action, confers no jurisdiction on this court and should be dismissed on the court's own motion.

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Ed. L. Bryan, Judge.

Action for partition of real estate. Appeal from an order setting aside defaults and interlocutory decree. Dismissed.

Appeal dismissed. Costs awarded to respondents.

Frank Harris, for Appellant.

An action for the partition of property is an action purely in rem, and under well-known general principles of law, as well as the provisions of the Idaho statute, does not abate upon the death or disability of a party. (Kelly v. Rochelle (Tex. Civ.), 93 S.W. 164.)

Where a new corporation is organized to take over the assets of a defunct corporation and does so take them over, no suit pending by or against the old corporation is abated by its dissolution. (Jones v. Francis, 70 Wash. 676, 127 P 307.)

B. S Varian and Wood & Driscoll, for Respondents.

The defaults and decree were void in that they were made without the existence of cross-complainant, or other party capable of applying for or receiving defaults or decree.

The defunct corporation could not act, because on October 1 1910, it had ceased to be a legal entity. Neither the trustees for the extinct corporation nor the new corporation had been made party to the suit; they were and are each strangers to the proceedings. Orders made upon such application are void, and may be vacated by the court at any time. (Kerns v. Morgan, 11 Idaho 572, 83 P. 954.)

MCCARTHY, J. Rice, C. J., Budge, Dunn and Lee, JJ., concur.

OPINION

McCARTHY, J.

February 20, 1902, A. M. Holter filed his amended complaint in an action for partition of real estate. July 9, 1903, defendant American Mining Company, Ltd., a Montana corporation, filed its answer and two cross-complaints against plaintiff Holter and defendants S. T. Hauser and Massena Bullard, trustees. June 22, 1904, the attorneys for the American Mining Company Ltd., and W. E. Borah, attorney for Holter, stipulated in writing that the plaintiff Holter and the defendants Hauser and Bullard, trustees, might plead to said cross-complaints at any time within thirty days after defendant and cross-complainant American Mining Company, Ltd., should serve upon them a written notice requiring them to do so, and that no default should be entered against them until after the expiration of thirty days from the date of such notice. The trial court evidently found that no such notice had been served, and that finding is supported by the showing. This stipulation was not filed until November 1, 1915, having been found in the papers of Massena Bullard after his death. Negotiations for the sale of the property which would obviate the necessity of a partition were being carried on all these years, and it appears that entering into the stipulation of June 22, 1904, was quite as much to the advantage of the cross-complainant American Mining Company, Ltd., as of any of the other parties. No answer to the cross-complaints was filed by the plaintiff Holter or by the defendants Hauser or Bullard. The defendant and cross-complainant American Mining Company, Ltd., ceased to exist by operation of law, through the expiration of its charter, on October 1, 1910. On October 3, 1910, three directors of the defunct corporation organized a second corporation under the Montana laws bearing the same name. August 31, 1911, there was filed with the county recorder of Adams county, Idaho, an instrument signed by these three persons, as trustees and stockholders of the old corporation, purporting to convey to the new corporation the interests of the defunct corporation and their interests in the property involved in the litigation. On February 4, 1913, Frank Harris, Esq., of the firm of Harris & Smith, purporting to represent the defunct corporation, caused the case to be transferred to Adams county, and on the same day, in the same capacity, moved the district court of Adams county to enter defaults of the plaintiff Holter and defendants Hauser and Bullard for failure to answer the cross-complaints of the defunct corporation, and the motion...