Illinois Sewing Mach. Co. v. Harrison

• Decision Date: 01 June 1908
• Citation: 96 P. 177,43 Colo. 362
• Parties: ILLINOIS SEWING MACH. CO. v. HARRISON.
• Court: Colorado Supreme Court

96 P. 177

43 Colo. 362

ILLINOIS SEWING MACH. CO. v. HARRISON.

Supreme Court of Colorado

June 1, 1908

Appeal from District Court, City and County of Denver; Frank T Johnson, Judge.

Action by the Illinois Sewing Machine Company against Mark Harrison. A demurrer to the complaint was sustained, and the action dismissed, and plaintiff appeals. Reversed.

This action would be replevin at common law, and is one of claim and delivery of personal property under the Code. Plaintiff is a foreign corporation organized under the law of the state of Illinois. The complaint is silent as to a compliance by it with the laws of this state concerning the right of foreign corporations to do business in, and sue in the courts of this state. It alleges that plaintiff was the owner of the goods and chattels, possession of which defendant wrongfully took. There was a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, that plaintiff has not the legal capacity to sue and that it does not appear on the face of the complaint that plaintiff has complied with the provisions of sections 4, 10 c. 52, Acts Gen. Assem. 1901 (Sess. Laws 1901, pp. 118, 121) which, among other things, requires a foreign corporation to pay a prescribed fee to the Secretary of State upon the filing of its certificate of incorporation, which by another statute it is required to do before it may enter upon business in the state, and, unless it files such certificate and pays the fee, and receives from the Secretary a certificate that it has paid all the prescribed fees and taxes to the officer, it shall not have or exercise any corporate powers, acquire or hold any property, or be permitted to do business or prosecute or defend in any suit in this state until the fee is paid. The court sustained the demurrer, and, as plaintiff elected to stand by his complaint, the action was dismissed, and plaintiff is here with its appeal.

Chas. K. Phillipps, for appellant.

Edmund J. Churchill and C. H. Cochran, for appellee.

CAMPBELL, J. (after stating the facts as above).

The first point made is that in an action of claim and delivery of personal property a general allegation of ownership by plaintiff is insufficient; that, coupled therewith, should be an allegation that plaintiff is entitled to possession. It is settled in this state, and seems to be the rule elsewhere, that a general allegation of ownership of property is sufficient. It was so held in Shipton v. Norrid, 1 Colo. 404, under the territorial practice act, and the rule has not been changed by our Code of Procedure. In Baker v. Cordwell, 6 Colo. 199, a complaint in which there was a general allegation of ownership was held sufficient. In Hanna v. Barker, 6 Colo. 303, 313, it was said that the right to the possession of chattels flowed from the ultimate fact of ownership. In Benesch v. Waggner, 12 Colo. 534, 21 P. 706, 13 Am.St.Rep. 254, it was said, referring with approval to Baker v. Cordwell, that in an action of claim and delivery plaintiff might declare generally his ownership of the property. Cobbey on Replevin says that the term 'owner' in this kind of an action does not import an absolute and unqualified title, but a right to possession. Sections 532, 533. In a complaint allegation of ownership of the goods and chattels is sufficient. Sections 590, 591. In Wells on Replevin (2d Ed.) § 39, it is said: 'Ownership of chattels usually draws to it the right of possession. Proof of ownership would warrant the inference that the owner was entitled to possession.' Also section 122. Street v. Sederburg, 41 Colo. 128, 92 P. 29; Elliott v. First National Bank, 30 Colo. 279, 70 P. 421. In accordance with these authorities, a complaint in an action of claim and delivery of property under the Code which alleges that plaintiff is the owner sufficiently answers the requirement that plaintiff be entitled to possession. This complaint was sufficient in this respect.

2. Plaintiff contends that the statutory requirements of foreign corporations above referred to...